text:
    ARTHUR D. FISKE, Plaintiff, v. WILLIAM F. HIBBARD, Defendant.
    Before Speir and Freedman, JJ.

      Decided June 13, 1879.
    Statute op limitations.
    This statute, when applicable, is something more than presumptive evidence of payment. It is a complete bar to the recovery of the debt, and no admission of the debtor will avoid the discharge unless under circumstances that indicate an acknowledgment of the debt, and a willingness to pay the same.
    An express promise to pay, however, is not necessary, when the same can be implied from the acknowledgment of a present indebtedness (Kincard v. Archibald, 10 Hun, 9; and affirmed in the court of appeals, April 2, 1878, and other cases cited in the opinion of the court).
    In this case, the defendant wrote a letter to the plaintiff, which contained the following statements in regard to the debt in ques tion:
    “I am well aware that I owe you for money borrowed.”
    “ As you have the figures, I wish you would at your leisure make out a statement of what, you consider my indebtedness to you, and send it to me, resting assured that in all money matters I want to act honestly toward everybody.”

      Held, by the court, that these statements of defendant to plaintifE in that letter were a sufficient acknowledgment of a present indebtedness, and from which a promise to pay might be implied.
    This action was brought to recover the amount of certain loans made by Frederick S. Heiser to the defendant in 1868, and also to recover the amount of advanees made by said Heiser, in order to protect his interest in a certain lease assigned by the said defendant to said Heiser, as security for the greater part of said loan.
    The defendant, by his answer, admits an indebtedness of a limited amount. As to the residue of the claim, he interposes the statute of limitations as a defense ; but in case the statute shall not be held to bar a recovery, he claims that his indebtedness to Heiser was extinguished by the absolute conveyance of his interest in a certain lease of premises in the city of Hew York; and that such conveyance was not made by the defendant as security for a loan of $5,000, as is insisted by the plaintiff.
    Upon the trial, a verdict was rendered for the plaintiff, by direction of the court, for $15,765.19, and defendant’s exceptions were ordered to be heard at the general term in the first instance.

      W. T. Schley, for the plaintiff.

      M. S. Thompson, for the defendant.
   By the Court.—Freedman, J.

Whether the real arrangement between the parties amounted to an absolute or a conditional sale, or was intended to be collateral security for loans already made, and a further loan to be made on the faith of it, depends upon the facts and circumstances surrounding the transaction. It was competent to show that the writings, though appearing, to a certain extent, absolute upon their face, were intended to stand as security merely. . This proof the plaintiff furnished, and the defendant "gave no testimony to the contrary. The court below was, therefore, right in determining this branch of the case in favor of the plaintiff.

I am also of the opinion that the defendant was credited with all moneys as to which he was entitled to credit.

The only remaining question arises upon defendant’s exception to the ruling of the court that the plaintiff’s claim was not barred by the statute of limitations. This ruling was based upon a certain letter, written by defendant to plaintiff, which was held sufficient to take the case out of the operation of the statute. It contains, among other things not necessary to be considered, the following statements, viz.:

1. “I am well aware that I owe you for money borrowed;” and

2. “As you have the figures, I wish you would, at your leisure, make out a statement of what you consider my indebtedness to you, and send it to me, resting assured that in all money matters I want to act honestly toward everybody.”

The only objection urged against it relates to the sufficiency of the acknowledgment contained therein.

The statute of limitations, when applicable, is something more than presumptive evidence of payment of the debt. It is a complete bar. Ho admission of the debtor will avoid the discharge, unless made under circumstances which indicate a willingness to pay. But no express promise is necessary, as long as a promise may be implied from the acknowledgment of a present indebtedness (Kincaid v. Archibald, 10 Hun, 9; affirmed by the Court of Appeals, April 2, 1878; McNamee v. Tenny, 41 Barb. 495; Ross v. Ross, 6 Hun, 80; Loomis v. Decker, 1 Daly, 186; Winchell v. Hicks, 18 N. Y. 558; Chace v. Higgins, 1 N. Y. Supm. Ct. [1 T. & C.] 229; Code of Civ. Pro. § 395).

Considered in the light of these authorities, the letter in question contains a sufficient acknowledgment of an indebtedness then existing, to take the case out of the operation of the statute.

Defendant’s exceptions should be overruled, and judgment absolute rendered in favor .of the plaintiff, upon the verdict, with costs.

Speir, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    JULIA SCHMIDT, Plaintiff and Appellant, v. JOHN HEITNER, Defendant and Respondent.
    Before Sedgwick and Freedman, JJ.

      Decided June 13, 1879.
    Execution against the person.
    Section 572 of the Code of Civil Procedure provides that an. execution against the person must be issued within three months after entry of judgment, where the defendant is in actual custody by virtue of an order of arrest in the action.
    A defendant released from the order of arrest in the action, and on bail, is not in actual custody within the true intent and meaning of the term, as used in the section referred to.
    It seems that, in case of bail to the limits of the jail, a different rule prevsils, for in such case the person is really imprisoned upon an execution, within the limits of the jail.
    Appeal from an order vacating and setting aside an execution against the body of the defendant.
    The facts presented on the hearing of the motion were as follows :—
    About May 21, 1875, an order of arrest was issued against defendant; defendant was arrested and immediately gave bail, and remained and was released on said bail ever since. On October 24, 1877, judgment was recovered and entered against defendant.
    Execution against the property of defendant was returned January 9, 1878, unsatisfied.

      Execution against the person of defendant was issued October 21, 1878.
    The court, by an order, vacated the execution against the person, on the ground that it had not been issued within three months after the entry of judgment, and the plaintiff appealed.

      John P. Schuchman, attorney, for appellant.

      David Levy, attorney, for respondent.
   By the Court.—Freedman, J.

I do not see how the order appealed from can be sustained. Section 572 of the Code of Civil Procedure applies only to defendants in actual custody. A defendant released on bail is not in actual custody, within the true intent and meaning of the term, as used in the section referred to.

Section 288 of the former Code contained a similar provision, and, in Bostwick v. Goetzel (57 N. Y. 582, affirming 34 N. Y. Super. Ct. 23), was held inapplicable to the case of a defendant at large on bail. Coman v. Storm (2 How. Pr. 84) is not in point. In that case the defendant, though enjoying the liberties of the jail, was really imprisoned, upon an execution against his person, within the limits of the jail.

The order should be reversed, with costs, and the motion denied, with ten dollars costs.

Sedgwick, J., concurred.


text:
    SOLOMON LOEB, et al., Plaintiffs, v. THEODORE HELLMAN, et al., Defendants.
    Before Sedgwick, Speir and Freedman, JJ.

      Decided June 13, 1879.
    Principal and agent.
    The rule that an agent cannot bind his principal in a matter in which the agent has secured to himself an interest, is well settled. In such a case the principal may repudiate the act of the agent , whenever the facts become known to him.
    Loss occasioned by the negligence of the agent in the fulfillment of his duties, must fall upon the agent, and he is liable therefor to his principal.
    This case was one of a special agency, under which the duty of seeing that the bills of exchange were fully covered by actual shipments of cotton, and the bills of lading were valid, was clearly imposed upon the defendants. Bills of exchange purchased by defendants for plaintiffs’ account, otherwise than in strict accordance with their authority under this special agency, did not constitute a proper and legitimate charge, in favor of defendants against plaintiffs, unless it clearly appeared that such violation of duty had been waived by the plaintiffs. There being no proof of such waiver, the defendants were justly held liable.
    Exceptions ordered to be heard at general term, in the first instance.

      Man & Parsons, attorneys, and John E. Parsons, of counsel, for plaintiffs.

      Lauterbach & Spingarn, attorneys, and F. N. Bangs, of counsel, for defendants.
   By the Court.—Freedman, J.

I am of the opinion that the verdict was properly directed and that the views expressed by the learned judge in making the direction were, in the main, correct. The case was one of a special agency, under which the duty of seeing that the bills of exchange were fully covered by actual shipments of cotton and that the bills of lading were valid, was imposed upon the defendants; and under which bills of exchange purchased by the defendants for plaintiffs’ account, otherwise than in strict accordance with their authority, did not constitute a proper and legitimate charge against the plaintiffs, unless the violation of authority was clearly waived by the plaintiffs. There being no proof of such waiver, the defendants were justly held liable.

The question really was, whether the defendants could compel the plaintiffs to reimburse them for advances which they, the defendants, had made to Carr & Laun at a profit exclusively to themselves. They had a strong interest to accomplish this, if possible, but this interest was directly antagonistic to the discharge of their duty to the plaintiffs. The rule that an agent cannot bind his principal in a matter in which he, the agent, has secured to himself an interest, is well settled. In such a case the principal can repudiate the act of the agent whenever the facts come to his knowledge.

But, even if the liability of the defendants depended upon negligence, the verdict that has been directed might have been directed against them upon that ground. The evidence showed that throughout they transacted the business in the most careless manner. They advanced the moneys received from the plaintiffs for the purchase of bills of exchange drawn against actual shipments of cotton, and to be accompanied by valid bills of lading, to Carr & Laun, on no other security than receipts from Carr & Laun, pledging cotton to be purchased, and containing Carr & Laun’s promise of bills of exchange to be drawn in the indefinite future, and to be secured by the cotton that was to be purchased ; and, when they received what purported to be bills of lading, they did not take the trouble to see whether such papers represented actual shipments of cotton. It was their negligence in these particulars which amounted to a breach of duty and occasioned the loss.

In either aspect of the case the defendants are liable to repay the amount of the bills of exchange, with interest.

The loss of the premium of insurance of $504 on the cotton shipped by the Flora was also caused by a breach of duty, or negligence, on the part of the defendants. They were bound to secure satisfactory proof “ of the actual effect of insurance.” But, when they took the bills, neither was the cotton insured nor did they take the trouble to ask whether it was insured or not. This shipment having resulted in a loss, irrespective of the amount paid for insurance, the sum of $504 is not chargeable against the plaintiffs.

Defendant’s exceptions should be overruled and judgment ordered for the plaintiff, on the verdict, with costs.

Speir, J., concurred; Sedgwick, J., concurred, on the ground first stated.


author: ■By the Court.—Sedgwick, J.—The

text:
    JOHN W. PHYFE, Plaintiff and Appellant, v. PETER MASTERSON, et al., Defendants and Respondents.
    Ejectment.—New trials in, under the statute.
    Where an ejectment, case was tried before the court and jury, and a verdict rendered for plaintiff, and the court ordered that the entry of judgment be stayed, and that the defendant’s exception be heard in the first instance at general term; and afterwards, at general term, the exceptions were overruled, and judgment for plaintiff ordered,—Held, that this judgment was entered upon the verdict of a jury, and is such a judgment as is described in 2 R. S. p. 309, tit. 1, part 2, c. 5, § 36.
    Execution was issued on this judgment, for plaintiff’s costs, and the sheriff sold, thereby, all the right, title and interest of the defendant, in and to the premises described in the complaint, and the plaintiff became the purchaser and received the sheriff’s deed, and the plaintiff claims that the defendant lost all right, title and interest in the premises, by such sale and deed, and that the statute did not intend to give a new trial to a party who had no interest in the land, that was the subject of the action. Also, that the judgment was satisfied by the sale under the execution, and there was no judgment to be vacated under the statute.

      Held, that such claims cannot be sustained. At the time the execution was issued, the judgment was conclusive that the plaintiff had the title to the land, and that the defendant had none. There was nothing in the way of rights or interests to sell, or that could be sold under the execution. The right to make the motion for a new trial in the action was not, in its nature, subject to levy and sale under execution, and was not in fact sold. The sheriff’s deed conveyed to plaintiff no more than he possessed before, under the judgment.

      But the Court also held, that it did not appear, by the motion papers for the new trial, that justice would be promoted, and the rights of the parties more satisfactorily ascertained and established by a new trial.
    1. No specification nor any indication apparent in the moving papers, pointing out any error or injustice, other than a statement that the motion was made upon the affidavit annexed, and upon all papers, proceedings, and pleadings in the action. Such a notice is vague, and its general words concealed, rather than disclosed, what position was taken for the new trial.
    3. The principles stated in Wright v. Milbank (9 Bosw. 672), are applicable. It is not every error, even though it may be clear, that calls for second new trial. The defendant’s case has been well considered before this motion was made. Any errors on the first two trials could have been corrected on appeal. In the motion for a new trial the second time, the discretion of the court is addressed and invoked to a certain degree.
    The court must ascertain and determine that substantial justice requires the new trial demanded. It must further determine to what extent, if at all, the defendant is responsible for the court, on the former trial, having made the mistake, or omitted to consider the ground urged on this motion.

      Before Sedgwick and Freedman, JJ.

      Decided November 3, 1879.
    If it appears that the defendant omitted to point out to the court, on the former trial, the matter now claimed as grounds for this motion, and that omission is not excused, or accounted for, but may have been intentional, then all the general principles of jurisprudence forbid that thiss should be considered a sufficient reason for a new trial, or that it will more satisfactorily establish the rights of the parties. Such an omission should be deemed a waiver of the objection for all future purposes in the litigation. The present objections are of a formal or technical character, and such as would have been meritorious, if taken at the right time, but are insufficient as grounds for a second new trial.
    Appeal from order granting defendant’s motion for second new trial, under the statutes, regarding new trials in ejectment.
    The action was in ejectment. The plaintiff claimed as lessee from the corporation of the city of New York, for the term of one thousand years, on a sale for unpaid taxes.
    The defendant had, after the first trial, claimed and procured a new trial. The motion for the order appealed from was for a second new. trial.

      John Townshend, for appellant.

      James A. Deering, for respondent.
   ■By the Court.—Sedgwick, J.—The

The learned counsel for the appellant claims, that the judgment vacated is not of a kind that section 36 of 2 R. S. (p. 309, tit. 1, pt. 3, c. 5) describes, and that section 37, empowers the court to vacate. The ground of this claim is, that the judgment was rendered on the order of the general term, and not. upon the verdict of a jury. This is erroneous. A verdict was given by the jury. The court at the trial ordered that the entering of judgment thereon be stayed, and that the defendants’ exceptions be heard in the first instance at general term. The exceptions were overruled at general term, the order directing that the plaintiff have judgment on the verdict. When the plaintiff entered this judgment, it was, therefore, upon the verdict of a jury.

A further claim by appellant was that the defendant is not, under section 37, entitled to be an applicant for the order. That provides that the judgment may be vacated “upon the application of the party, against whom the same was rendered, his heirs and assignees.” It is clear that the defendant was not his own heir or assignee. It is equally clear that he is the party against whom the judgment was rendered. It was shown on the motion, that execution was issued on the judgment-for costs against the defendant, and the affidavit states that the sheriff, after due advertisement, sold the right, title and interest of the defendant in and to the premises described in the complaint; that the plaintiff became the purchaser, and after the due. course of things, received the sheriff’s deed of such right, title and interest. Therefore it is argued, that the defendant lost all right, title and interest to or in the premises, and that the statue did not intend to give a new trial to a man who had no interest in the land ; and a further argument is, that the judgment, having been satisfied by the plaintiff’s purchase and bid, cannot be vacated," as there is nothing to be vacated. These positions do not seem to be sound. At the time the execution was issued,the judgment, by its proper force, and by section 36 {supra), "was conclusive that the plaintiff had the title to the term of one thousand years, involved in the action, and that the defendant had no title thereto. If the title of the defendant to the reversion could be sold, he had no title to the term of one thousand years. If he had actual possession of the' land, after judgment of ejection against him, that possession was, as to the judgment, tortious, and incapable of sale under the execution upon the judgment. The right to make the motion under the statute was not an interest in the land, was not sold in fact, and was not in its nature leviable upon, as it was a right of the same kind as a chose in action. So far as the term of one thousand years, recovered by the judgment, is concerned, the sheriff’s deed did not convey to the plaintiff more than he already had. The present appeal does not call for attention to the state of the reversion.

The sale under the execution, whatever its effect upon such part of the judgment ais was for costs, did not satisfy or cancel such part of it as adjudged title to be in the plaintiff.

¡Nevertheless, while the objection noticed should not be sustained, I am of the opinion that, on ,the motion, it did not appear that justice would be promoted and the rights of the parties more satisfactorily ascertained and established by a new trial. In the first place, there was not in the moving papers any specification of the grounds on which the motion for a new trial was made, or any other indication to the opposing party, or to the court, of where error or injustice was ’to be discovered, other than a statement that the motion was made “upon the affidavit annexed, and upon a,11 papers, pleadings and proceedings in this cause.” This did not point out that reliance was placed upon defendant’s counsel omitting to call attention on the former trials to defects in the steps taken towards the tax sale. The notice, in re-naming proceedings, calls attention, perhaps, to the trial as a whole, but not to any particular part of it, and certainly not to it, as evidence that an oversight had happened. The notice was vague, and its general words concealed, rather than disclosed, what position was taken, as ground for a new trial.

In the second place, and upon the merits, the case of Wright v. Milbank (9 Bosw. 672), states principles that must be applied here. It is not every error, even though it may be clear, that calls for a second new trial. The defendent in ejectment has received great protection before such a motion can be made. Any error upon the first two trials can be corrected upon appeal; or, after the first trial, he can have a second trial as a right, upon payment of costs. In making the motion for a new trial for the second time, the discretion of the court is addressed to a certain extent. At least, it is the duty of the court to consider the nature of the alleged mistake, and to go so far as to find that substantial justice requires a new trial, as distinguished from a declaration that a question must be answered by law, one Way or the other. It must further determine to what extent, if at all, the defendant is himself responsible for the court having, on the former trial, made the mistake or omitted to consider the ground urged on the motion. If the omission of the defendants’ counsel to point the court to the matter is not excused or accounted for, but may have been intentional, general principles of jurisprudence, forbid that it should be made a reason for saying that a new trial will more satisfactorily establish the rights of the parties.

The reasons urged for a new trial are certain defects, which it is argued exist in the proceedings for the tax sale and after it. The court on neither trial overlooked the important principle that the statutes must be strictly pursued, but correctly applied it, and correctly passed upon all the objections that the defendant’s counsel chose to take. These statutes are numerous and intricate, and the court is only properly called on to determine such points in them as counsel advert to. For many years the diligence and astuteness of counsel have been given to this subject, and an omission to make particular objection, in the absence of explanation as to the cause of the omission, should be deemed a waiver of the objections for all future purposes in the litigation. Otherwise it will grow to be a habit, to reserve an objection, simply to be used for the first time on a motion for a second new trial.

Outside of the rule, that statutory directions as to the tax sale must be strictly followed, the present objections are of a formal or technical character. The rule has been implicitly followed to every extent called for by defendants’ counsel. These objections are like the following : that a notice was not published in the "City Record ; that the call for unpaid taxes was published in but nine out of the eleven newspapers designated by the comptroller, or in but seven out of the ten newspapers designated under chapter 574 of the Laws of 1871; that, as stated in the supplementary brief of the learned counsel for defendants, its notice to redeem required redemption on or before the 14th, 15th, 16th, 18th, 21st, 22d and 23d days of December, 1873, instead of a day certain ; and that the personal notice to the owner to redeem was given by the purchaser before he had received the comptroller’s deed, and not after. Such objections are meritorious, when taken at the right time, but do not call for a second new trial.

I am of the opinion that the order below should be reversed with $10 costs.

Freedman, J., concurred.


author: By the Court.—Sedgwick, J.

text:
    MARGARETTA SCHAPPERT, as Administratrix, &c., Plaintiff and Respondent, v. GEORGE RINGLER, et al., Defendants and Appellants.
    Before Sedgwick and Freedman, JJ.

      Decided November 3, 1879.
    Negligence resulting in death.
    The plaintiff is bound to show, affirmatively, that the intestate did not contribute to the result, and that the defendant’s negligence was the sole cause.
    In this case, before any request to charge had been made, the court said to the jury:
    “If you find, from the-testimony, that- this unfortunate man contributed, in any way, by his own act, to the accident which resulted in his death, the plaintiff cannot recover. But of that you must be satisfied. Ton must set your hand upon something that is sworn to in evidence here.” And again:
    “If you put your bands upon anything, and satisfy yourselves that he has done something, by his own acts, by which he has lost his life, then the plaintiff cannot recover.”
    The defendants’ counsel excepted to these propositions charged, and requested the court to charge, “that if the jury believe, from the evidence, that any act of Louis Schappert aided or contributed towards his injury, then the defendants are not liable. Plaintiff must prove, to the satisfaction of the jury, that Schappert was entirely free from fault. ”
    This request was denied, and exception taken. Held, by the court, that these exceptions were well taken, and there should be a new trial.
    Appeal from judgment on verdict in favor of plaintiff.
    The complaint charged that defendant’s negligence caused the death of plaintiff’s intestate, and claimed damage thereupon, to the next of kin.
    The circumstances of the death were as follows: The defendants owned and did business in a brewery in which was an elevator, that was worked from the cellar floor to the highest floor. They had contracted, with one Everspacher, that he should build for them an ice-house in the brewery. The intestate was in the employment of Everspacher. In performing his contract, Everspacher directed the intestate and other laborers to remove from the cellar, dirt and rubbish there. On the day of the occurrence in question', as one of the defendants testified, Everspacher asked me “if he could have that elevator for hoisting out his dirt and stuff, when I was not using it, and I told him he could have it when I was not using it, and I would give him my engineer or foreman to run the elevator for him.” On that day, the defendant “ran the elevator himself” until 12 o’clock, and afterwards the defendants’ foreman ran it. In the afternoon, the deceased with other laborers shoveled upon the platform of the elevator dirt from the cellar. On a signal, defendants’ foreman, who was in charge of the engine that worked the elevator, set it in motion, and the platform was raised to the street floor. There was evidence that the deceased remained on the platform while it was raised.. He and the other laborers began to shovel the dirt from the platform. It took some time to remove it all. According to the testimony of the defendants’ foreman, he left the engine as soon as it reached the street, and went to another part of the brewery, not returning to the engine until after the accident. There was a conflict of testimony as to whether the workmen had removed all the dirt before the platform moved again. The testimony for plaintiff was, that it had not been removed ; that for defendant was that the platform was clear of dirt. The defendant, sworn, testified “after the dirt was removed, I heard Schapper (the intestate) hallooing to lower the elevator. I told him just wait a minute, until the engineer or foreman was coming, that I had not got time.” The witness was then fifteen or twenty feet from the platform. He >moved, as he swore, some distance away, and two or three minutes after, heard the elevator fall. He swore that he told Schappert to wait until the engineer or foreman came in.
    The testimony tended to show that while the intestate and the others were on the platform, it was suddenly'raised to the top of the elevator, and, the fastenings breaking, immediately fell to the cellar floor, thereby inflicting injuries which caused the death of intestate. No testimony whatever was given to show what caused the platform to be set in motion.
    The testimony also tended strongly to show that the defendants had often forbidden the intestate to go up or down on the platform, directing him to use the stairs.
    The jury found for the plaintiff.

      Daily & Machin, and Henry Daily, Jr., for appellants.

      Ernest Hall, for respondent.
   By the Court.—Sedgwick, J.

The defendants’ own evidence affirmatively proved that, so far as the working of the elevator went, the defendants were to control it. They told their contractor that they would give the engineer or foreman to run the elevator. This engineer or foreman was to be, as the whole case showed, under the command or at the bidding of the defendants. There was no agreement or understanding that the contractor should see to the proper running of the machine. The fact was, that while the elevator was in use, the engine attached to it was not in charge of the engineer or foreman, or, so far as the testimony directly showed, of any person. If these things were not incontrovertibly proved by the testimony, the plaintiff was entitled to have the verdict of the jury as to their existence. If they did exist, there was a duty on the defendants to the plaintiff, to use diligence in setting the engine in work properly, and in seeing that it should not be set in motion improperly.

Coughtry v. The Globe Woolen Company, 56 N. Y. 124, is in point. Accordingly the learned court below was correct in leaving to the jury, as it did, the question of defendants’ negligence.

But I think the defendants had a right to have charged, a request that their counsel made on the subject of the intestate’s contributory neglegence. The case did not explicitly show that the deceased was free from neglegence. Without adverting to whether the evidence admitted of an inference that the intestate himself was the cause of motion being applied to the elevator, there was sufficient to call for the jury’s verdict on the point, w'hether the plaintiff did not negligently remain on the platform after it was cleared of dirt, when ordinary prudent attention to his known duties required him to leave the platform and go to the cellar by the stairs. On the trial it was assumed that there was a question for the jury as to plaintiff’s contributory negligence.

As to this, before, the request referred to was made, the court had said : “ If you find from the testimony that this unfortunate man contributed in any way, by his own act, to the accident which resulted in his death, the plaintiff cannot recover. But of that you must be satisfied. You must set your hand upon something that is sworn to in evidence here.” And again : “If you put yoqr hands upon anything, and satisfy yourselves that he has done something by his own acts, by which he has lost his life, then the plaintiff cannot recover.” The defendants’ counsel excepted to these propositions, and requested the court to charge that “if the jury believe from the evidence that any act of Louis Schappert aided or contributed towards his injuries, then the defendants are not liable. Plaintiff must prove to the satisfaction of the jury, that Schappert was entirely free from fault.” This last sentence no doubt was to be understood as referring to any fault that contributed to the cause of the injury. The request was denied, and exception was taken. It seems to me that, inadvertently, the jury received the impression that on this point they should find for plaintiff, unless there was some proof that the intestate contributed by his own negligence to the result. But, in such cases, the plaintiff is bound to show that the intestate did not contribute to the result. In substance, he is held to show affirmatively that the defendant’s negligence was the sole cause. If there were no proof of any act of contributory negligence, and yet the whole case did not show that there was no contributory negligence, the plaintiff cannot recover.

For this reason, I think there should be a new trial.

Judgment reversed, verdict set aside, and a new trial ordered, with costs of this appeal to appellant to abide event.

Freedman, J., concurred.


text:
    MAX HARNICKELL, Plaintiff and Respondent, v. WILLIAM H. BROWN, Defendant and Appellant.
    Principal and broker.—Exceptions to evidence.
    In this case there was a contest over the allowance of a commission to the plaintiff on the purchase and sale of 100,000 pounds of copper, a portion of the gross amount of the sales, which portion defendant claimed was purchased by plaintiff on his own account, and for the purpose of enabling him to procure a sale for 550,000 pounds, a larger amount by 100,000 pounds than defendant had furnished the plaintiff to sell. The exceptions to the evidence in the case relate to this 100,000 pounds of copper. A letter of plaintiff had been read in evidence on the part of defendant, in which plaintiff wrote: “ N. S. S. has secured for me 100 M. lbs. of Lake Ingot Copper for July and August delivery. ... I herewith transfer above interest to you.” The plaintiff’s counsel asked the plaintiff, while testifying, “What did you mean, when you wrote the letter, by the words ‘ for me This question was objected to, and objection overruled, and exception taken; and plaintiff’s answer was, that he “ must have meant—as I had asked Simpkins to sell this copper as a personal favor to me, he put it down in my name; or it must have been in accordance with my way of saying.11 have bought or sold ’ when I meant my principal.” Another question in like manner allowed, was: “Did you desire, when you wrote that letter, to inform defendant of anything more than the fact that you had secured of Simpkins 100,000 pounds of copper for his account.”
    These exceptions were overruled, the court holding, 1st. The rule to be applied is not the one that relates to the words of a contract; the words “for me ” were not á part of the contract, but were in the nature of an admission from the plaintiff, tending to show that he bought this copper on his own account, and he bad a right, to prove what he meant to state or show in the use of the words “for me,”in the letter. 3d. Defendant had examined plaintiff on this subject, in such a way as to entitle him to the questions objected to, in explanation of the facts, and his admissions in the case.
    The above questions and answers made a fuller statement or explanation in regard to the matters, part of which defendant had already obtained on the direct examination.
    For the latter reason, the exceptions of defendant to the introduction, by plaintiff, of two entries in his own book of sales, cannot be sustained. The defendant had introduced the first of the entries at an earlier time in the trial.
    There was a conflict, as to whether the plaintiff had agreed to act for one-half of the usual commission, and defendant had testified that plaintiff’s agreement in this regard had followed his (defendant’s) statement that one Houston had offered to sell this copper for half brokerage, and if plaintiff wanted to do it at that rate, he might do so. As to this, plaintiff testified that he tjien said, “ You don’t expect me to do the five hundred and fifty thousand business at one quarter per cent. ?” to which defendant answered, “ Certainly not; you shall have one-half per cent.”
    The plaintiff asked Houston, when called as a witness, if he had ever offered to sell copper for the defendant at less than usual commissions, within the year 1873, before April 1. Defendant’s exception to the allowance of this question was properly overruled, for the reason that the testimony of Houston on this point would support the testimony of either the plaintiff or defendant, in regard to this contract.
    Before Sedgwick, Speir, and Freedman, JJ.

      Decided November 3, 1879.
    Appeal by defendant from judgment, entered on report of referee.

      Chandler & Smith and James E. Chandler, for respondent.

      Erastus New, for appellant.
   By the Court.—Sedgwick, J.

The action was for the value of plaintiff’s services, as defendant’s broker, in selling copper. It was admitted that some amount was due.

The first position that calls for attention is, that the referee erred in allowing a commission upon a .quantity of one hundred thousand pounds of copper, parcel of the gross amount, because, although plaintiff sold that copper for defendant, and as his broker, yet, as is alleged, the evidence shows, in substance, that the defendant bought and sold the one hundred thousand pounds of copper, for the sole purpose of aiding the plaintiff in selling the rest of the copper, and altogether for plaintiff’s benefi t. The position cannot be sustained. The evidence allowed the referee to find, that the plaintiff’s acts in respect of the parcel was for the interest of the defendant and at his request.

There were exceptions that relate to the purchase of the parcel of one hundred thousand pounds. The plaintiff had proposed to defendant to sell for him a quantity of five hundred and fifty thousand pounds of copper, for which, but not for a less amount, he was able to find a buyer. The defendant with others, at a certain time, could command only four hundred and fifty thousand pounds. For the purpose of making up the necessary quantity, the plaintiff bought the one hundred thousand pounds. On the trial the plaintiff alleged that he bought it for the defendant, and on his account, while the defendant alleged that the plaintiff bought it for himself, and transferred it to defendant for the purpose of enabling himself to earn commissions in selling the whole lot. A letter signed by the plaintiff was introduced, notifying.defendant that “ 1ST. S. S. has secured for me 100. M lbs. of Lake Ingot Copper for July and August delivery ... I herewith transfer above interest to you.” The plaintiff’s counsel asked plaintiff, while testifying, “ What did you mean, when you wrote the letter, by the words ‘for me’ V’ This was allowed, under exception, and the answer was that he “must have meant—as I had asked Simpkins to sell this copper as a personal favor to me, he put it down in my name ; or it must have been in accordance with my way of saying ‘I have bought or sold,’ when I meant my principal.” Another question was, “Did you desire, when you wrote that letter, to inform defendant of anything more than the fact that you had secured of Simpkins one hundred thousand for his account ? ” It is argued that the witness had no right to give his undisclosed intentions, or to construe the words which had a definite meaning. The rule to be applied is not the one that relates to the words of a contract, made between the parties. The words “ for me ” were not part of the contract. They were in the nature of an admission, from which it might be argued that the plaintiff dealt in his own behalf with Simpkins. .He would therefore have a right, not only to give the facts, and to testify in substance that he meant by those words to describe that fact, or he might prove what meaning he thought at the time the words bore, or again, what his purpose at the time was ; all these things were relevant to the question of what did the use of the words show, that he knew or believed.

But beyond this, I think that defendant had before examined the plaintiff on the subject, in such a way as to entitle the plaintiff to the questions objected to. When the defendant offered the letter, he put questions to the plaintiff, which drew out the following: “I had bought from Simpkins. It is is not uncommon for a broker to have copper bought by him charged in his own name : that may have been the case in the transaction1 mentioned in said letter, and explains the statement therein about my making the transfer ; such buying or selling in one’s own name is, if buyer or seller does not want to be known in the market; it is usual to say that the sale is on account of the principal and not in the broker’s name when parties don’t want their name to appear.” I think this course of examination gave the plaintiff the right to ask the questions objected to. They made a fuller explanation, part of which the defendant had obtained. On the ground last stated, the exceptions to the introduction by plaintiff of two entries in his own book of sales, cannot be sustained. As to the first entry, the defendant had himself introduced it at an earlier time. The second entry was “April 1, N. S. Simpkins, W. H. Brown, 100,000 Lake, July, Aug., 33 cts.” The defendant had drawn from a bookkeeper of plaintiff, that the page containing the above entries was in the witness’s writing, and that on April 1 the plaintiff bought 300,000 pounds from Simpkins; and then gave in evidence, as is to be inferred from the printed case (although the words are “that he proposes to offer in evidence”), the first entry above alluded to, and the entry “April 1, IN". S. Simpkins, Jr., to Mr. Hendrichs, 200,000 Lake, June, July and August,” and stopped there. An argument might have been made, that there was no entry of the purchase of the one hundred thousand for the defendant. I think the plaintiff had the right to meet this by showing the entry of that purchase.

There was a conflict as to whether the plaintiff agreed to act for one-half of the usual brokerage. The defendant, in giving testimony that he did so agree, testified that his agreement followed a statement by the defendant that another broker named Houston wanted to sell the copper for half brokerage, and if plaintiff wanted to do it for half 'brokerage, he could do so. The plaintiff had testified that the defendant had said to him jokingly, “Thisother broker, Mr. Houston, has offered to do this business of one hundred thousand at one quarter per cent. ;” that witness then said, “You don’t expect me to do the five hundred and fifty thousand business for one quarter per cent. ?” and the defendant said, “ Certainly not, you shall have one-half per cent.” The plaintiff, after defendant’s testimony, asked of Houston, the other broker, when called as a witness, if he ever offered to the defendant to sell copper at less than the usual commission within the year 1872, before April 1.

The defendant’s exception to the allowance of this question is not sound. For if, on the one hand, he really had Houston to fall back on, he would have a motive to insist on plaiutiff’s lessening the commissions ; on the other hand, if Houston had not made the offer, he would be more likely to accede to plaintiff’s terms, according to plaintiff’s version.

The other exceptions have been examined, but are not tenable.

Judgment affirmed, with costs.

Speir and Freedman, JJ., concurred.


text:
    RUTH A. GANE, Plaintiff and Respondent, v. GEORGE A. GANE, Defendant and Appellant.
    Divorce, judgment of.—Alimony included therein.

      Enforcement of the same by proceedings to punish defendant for contempt of court, in the disobedience of the judgment.

    The order appealed from directed, in substance, that the defendant pay to plaintiff the alimony due to her under the judgment of divorce, to the date of the order, to wit: the sum of $775; and also that he pay, after the date of the order, $600 annually, in weekly payments, and that he give security for the future payment of the $600, and in default thereof, that an attachment issue, punishing said defendant for a contempt of the court.
    The original judgment might have been enforced by execution, and for that reason the court had no power to enforce it, in cáse of disobedience, by commitment for contempt (Code Civ. Pro. §§ 14, 1241).
    The statute, in permitting the requirement of reasonable security as a means of enforcing the order or judgment, does not permit a commitment for contempt; and in case of disobedience, the only relief is the application, through sequestration, of the defendant’s property to the payment of the allowance (Lansing v. Lansing, 4 Lans. 37; and see statutes cited in the opinion of the court).

      Before Sedgwick and Freedman, JJ.

      Decided November 3, 1879.
    Appeal from order, directing that defendant pay a certain amount as alimony, directed to be paid by final judgment; and that he give security for the 'future payment of said alimony ; and in default thereof, that an attachment issue, punishing him as for a contempt of court.

      Thomas J. McKee, attorney, and of counsel, for appellant, urged:
    I. Proceedings for a contempt of court, having in view the commitment of the defendant to close custody, cannot be had for disobedience of a final judgment, where, by law, an execution can be awarded for the collection of a sum of money, directed and ordered to be paid by such final judgment (Code Civ. Pro. § 14, subd. 3; Lansing v. Lansing, 4 Lans. 371; 2 R. S. Edm. ed. c. 8, tit. 13).
    II. Under a judgment and decree in a divorce suit, a vinculo matrimonii, ordering and directing the payment of alimony, judgment may be entered from time to time for the alimony accruing under such final judgment, and an execution issued thereon for the collection of the same (Miller v. Miller, 7 Hun, 208; Marsh v. Marsh, Daily Reg. January 16, 1879).
    III. The order appealed from, ordering and directing the defendant to give security for the future payment of said $600, alimony, is erroneous, and utterly void. The jurisdiction of the court over the parties to this suit terminated with the entry of final judgment, except to enforce the judgment as rendered. The relation of husband and wife, is terminated by the decree (Kamp v. Kamp, 59 N. Y. 212; Leitch v. Cumpston, 4 Paige Ch. 476).

      Robert W. Todd, attorney, and of counsel, for respondent, urged:

      I. (a) The defendant, by committing adultery, subjected himself and his property to the jurisdiction of the court, so far as to enable the court to order his property to be applied to the support of his family, both during the litigation and afterwards. And the power of the court extends to compelling the defendant to apply a portion of his daily earnings to the same object (Kirby v. Kirby, 1 Paige, 261; Lawrence v. Lawrence, 3 Id. 267; Bishop on Marr. & Div. 5 ed. §§ 446, 447, 481; Ford v. Ford, 41 How. Pr. 169; Cary v. Cary, 2 Daly, 425). (b) The court, in granting a decree of divorce, at the suit of the wife, is authorized to make a decree, or order, compelling the defendant to provide such suitable allowance to her, for her support, as the court may deem just, having regard to the circumstances of the parties respectively (3 R. S. 6 ed. p. 156, § 58). This order, or decree, the court may enforce by sequestration (Id. p. 159, § 74). Sequestration, in the court of chancery, was not in the nature of an execution against property. It was a process which issued where a party was in contempt; its object was to compel obedience to the orders of the court, and it issued, sometimes, when the party was in custody for contempt, and persisted in his contempt. It did not require the collection of any definite amount, but commanded the sequestration to take all the personal property, and all the rents and profits of the real estate (1 Barb. Ch. Pr. 67; 2 Id. 382; Bouv. Law Dic. “ Definition”), (e) The counsel for the appellant may claim that this case comes under subdivision 3 of section 14 of the Code of Civil Procedure, being for the non-payment of a sum of money, and that an attachment cannot issue, because an execution can be awarded. But it has already been shown that sequestration is not an execution for the collection of a sum of money, but is a process of punishment for contempt ; so that it is not apparent, from the provisions relative to divorce, that an execution for alimony can be awarded ; and, again, subdivision 8 of section 14 of the Code of Civil Procedure retains attachments and proceedings for contempt as they have been usually adopted and practiced.
    When, in a decree for a divorce, the court awards alimony, the court decides that in the circumstances of the parties, respectively, it is the duty and in the power of the defendant to pay to the plaintiff the amount allowed for her support; as it was his duty to support her while she remained his undivorced wife, so it continues to be his duty now that, for his fault, she has been relieved from" her marriage duties. His failure to do this is a violation of duty, and a contempt of court, unless excused by inability ; this is not the case of a debt which a defendant owes, whether or not he has the means of paying; but on the basis, partly of the defendant’s property, and partly of his ability to earn money, the court decides that he can pay, and ought to pay, so much towards the support of the woman whom he has wronged.
    II. The defendant should be compelled to give security for the payment of the alimony awarded to the plaintiff herein.
    This is expressly provided for by statute, as follows:
    “Whenever the court shall make an order or a decree, requiring a husband to provide for the maintenance of his children, or for an allowance to his wife, the court may require such husband to give reasonable security for such maintenance and allowance ” (3 R. S. 6 ed. p. 159, § 74; Forrest v. Forrest, 3 Abb. Pr. 144; Davis v. Davis, 1 Hun, 444).
   By the Court.—Sedgwick, J.

This was an action for divorce a vinculo. In 1871 the plaintiff had judgment in her favor, among other things, ordering and adjudging that the defendant pay to the plaintiff, thereafter, $25 each week for her support. This was paid until 1878, when there were arrears. On August 21, 1878, the plaintiff entered a judgment against defendant, in the sum of $576, as the arrears of the alimony. No question is made, on this appeal, of the regularity of either judgment. An execution against the property of the defendant was returned unsatisfied, and he was examined in proceedings supplementary to the execution. His examination did not show that he had money or property, which the court could order him to apply to the judgment.

On all the proceedings, and a demand and refusal to pay, the defendant was ordered to show cause “ why he should not be punished for his misconduct in disobeying ” the order and judgment of this court by not paying the alimony, by said order and judgment directed to be paid to plaintiff, and why he should not give security for the future payment of said alimony.”

The order made thereupon was, that the defendant pay to the plaintiff, “ within ten days after the service of a certified copy of this order upon him, the alimony due and owing under the judgment of July 28,1871, from August 18, 1878, to the date of this order, to wit, the sum of $775. That from and after the date of this order and until the further order of this court, he pay to the plaintiff or her attorney, for and on account of the alimony directed to be paid by the judgment of July 28, 1871, the sum of $600 annually, in weekly payments, said payments to be on the Tuesday of each week; and that he give security for the future payment of said $600; and in default thereof, that an attachment issue, punishing said defendant as for a contempt of court.”

The final judgment was for the payment of money, by the defendant to the plaintiff. The money to be paid was not a specific fund. It was not to be paid to the court or to an officer of the court. If the court had exercised, at the time of final judgment, the power it possessed, of requiring the defendant to give reasonable security (3 R. S. 6 ed. 159; 2 R. S. 148, § 60), the provision in that respect would not have been a part of the judgment in the true sense, but only a means of enforcing the judgment.

The judgment might have been enforced by execution, and for that reason the court had no power to enforce it, in case of .disobedience in not giving the security or in not paying the money, by commitment for contempt (Code Civ. Pro. §§ 14, 1241). Evidently the court could not order the giving security only for the purpose of permitting the plaintiff to say that the disobedience was to an order that required security to be given, and was, therefore, for the doing of something else than the payment of money. The only ground, for a judicial direction is, either that such is the right or such the legal means of enforcing the right. Now, the statute, in permitting the court to require reasonable security, as a means of enforcing the order or judgment, does not permit a commitment for contempt; and the only result, incase of disobedience, is the application, through sequestration, of defendant’s property to the payment of . the allowance (see R. S., cited above). Lansing v. Lansing (4 Lans. 377) suggests all that has been said.

Moreover, if the consequence of disobedience is to be imprisonment, it is of the very first importance that the mandate be clear and definite. The order should specify the kind and quantity of the security ordered.

Order reversed, with $10 costs, and disbursements to be taxed.

Freedman, J., concurred.


text:
    JOSEPH TATNALL LEA, Plaintiff, v. ERNESTO G. FABBRI, Defendant.
    I. Vendor’s lien.

      When does not exist. Where premises are conveyed, “ subject to a certain mortgage on the southerly portion of the same,” made by the vendor, which mortgage the vendee assumes and agrees to pay, by a clause in the conveyance, which states that the amount of the debt has “been deducted from the consideration herein-before expressed, ” there is no equitable lien upon the mortgaged premises in favor of the vendor; this, though the vendee, after paying interest for a certain time, make default, and allow the mortgage to be foreclosed, and the vendor to be thereby charged with a judgment for deficiency. The assumption of the mortgage is, pro tanto, the consideration.

      A fortiori, there is no equitable lien upon that portion of the premises not covered by the mortgage.
    II. Declaration or trust—construction or.
    The declaration in question herein was substantially that the premises conveyed to the grantee were held by him, in trust, to sell for the benefit of the grantor’s creditors, and out of the proceeds, First, to pay to the grantor’s wife certain sums in lieu of dower. “ Second, to pay such liens and incumh'ances upon the premises sold as are not assumed by the buyers thereof. ” Third, to pay, &c., grantor’s creditors generally, &c.
    Upon consideration of the scope and intent of the above declaration, it was
    Held,
    1. That the second subdivision thereof is to be construed as meaning that the liens must be paid out of the net proceeds of the lands upon which they exist, and not out of the net proceeds of other lands sold under the trust.
    2. That the subdivision must mean a payment of liens out of proceeds of a sale made by the trustee under the trust.

      (a) Sale under moi’tgage foi’eclosure is not such a sale.

    8. That such a sale was referrfed to as would permit an assumption of the incumbrance, rather than one made by virtue of the incumbrance, and which merged or canceled it, so far as the buyer was concerned.
    (a) Sale under mortgage foreclosure is not such a sale.

      Before Sedgwick, Speir, and Freedman, JJ.

      Decided November 3, 1879.
    Case agreed upon in a controversy submitted without action, under section 1279 of the Code of Civil Procedure.
    The facts are as follows : The plaintiff conveyed to Sergeant, in consideration of $35,000, a piece of land containing four acres, “subject to a certain mortgage, on the southerly portion of said premises,” made by the plaintiff to one GHlson for $10,000, which amount Sargeant assumed, and agreed to pay, “the same having been deducted from the consideration hereinbefore expressed.” Sergeant went into possession, and after-wards, by deed, conveyed the premises with others, in fee, to the defendant. Simultaneously the defendant executed and delivered to Sergeant a declaration of trust. This declaration recited the conveyance above mentioned of Sergeant to the defendant, and stated that the premises were held by the defendant, in trust “ to sell the same for the benefit of the creditors of said William Sergeant, and out of the net proceeds of said sales, and of rents and other profits and receipts from the premises, after 'deducting payments for interest, taxes, insurance, and repairs—First. If the wife of the said William Sergeant shall join in the conveyance of the land so sold, but not otherwise, to pay her such sums as shall be agreed on between her and the said Ernesto Gr. Fabbri, as compensation for her right of dower. Second. To pay such liens and incumbrances upon the premises as are not assumed by the buyers thereof. Third. To pay, compromise or settle all the just, individual debts of William Sergeant” and for other purposes not material to the controversy. At this time the mortgage was due. Thereupon the defendant entered into possession of the premises, paid interest upon the mortgage to Gilson until a certain time, when he made default in its payment. Upon this default, Gilson began an action for the foreclosure of the mortgage, making the plaintiff a party, and obtained judgment of foreclosure and sale, and that the plaintiff pay any deficiency. There was a deficiency reported, and the report being confirmed, the plaintiff here paid the same in the amount of $2,022.53. Simultaneously with the payment, Gilson assigned to the plaintiff ail rights she had, under the bond and mortgage, the judgment, and the declaration in trust.
    The case submits to the court these facts, for its judgment as to the rights of the plaintiff.
    The questions submitted to the court are as follows :
    Is the plaintiff entitled to the payment of the $2,-022.53, with interest from November 30, 1878, in full, out of the moneys realized by said Fabbri out of the trust property generally, the amount of such moneys, after provision for the dower of Mrs. Sergeant, under the first clause of the declaration of trust, being ample to pay the same in full ; or is he entitled to the payment thereof out of the proceeds of the Ewen purchase (being that portion of the premises conveyed by plaintiff to Sergeant, not covered by the mortgage assumed by the latter), so far as such proceeds will pay the same ; or is he only entitled to share pro rata with other creditors of William Sergeant, under the third clause %

    If the first question is answered in the affirmative, then judgment is to be rendered in favor of the plaintiff for the payment, by the defendant, out of the-trust fund, of the sum of $2,022.53, with interest from November 30, 1878, with costs to the plaintiff.
    If the first question is answered in the negative, and the second in the affirmative, then judgment is to be rendered in favor of the plaintiff for the payment of the amount of said judgment for deficiency, with interest and costs, out of the proceeds of the Bwen purchase, so far as such proceeds will pay the same ; and that as to the amount remaining unpaid after the application of the proceeds of the Bwen purchase, the plaintiff is entitled to share pro rata with the other creditors.
    If the first and second questions are both answered in the negative, then judgment is to be rendered in favor of the defendant, that the plaintiff is only entitled to share pro rata with the other creditors of William Sergeant, under the third clause-of the declaration of trust, with costs to the defendant.

      George H. Forster, of counsel, for plaintiff, urged:
    I. The second clause of the declaration of trust expressly covers this $10,000 mortgage. It was, at that time, a lien and incumbrance upon the premises. The defendant admitted this by his acts in construction of the trust. He paid the interest on this mortgage for eighteen months. The $2,022.53 was not paid by the buyer at the foreclosure sale; the plaintiff was compelled to pay it. This trust was one for his benefit, and he is entitled to enforce it either as a party for whose benefit it was originally made, or as assignee of Mrs. Gilson, under the assignment set forth in the case. The principles established in Lawrence v. Fox (20 N. Y. 268), and in the cases following that, establish .the plaintiff’s right, aside from such assignment (Durand v. Curtis, 57 N. Y. 14; Barlow v. Myers, 64 Id. 43; Arnold v. Nichols, 64 Id. 119; Simson v. Brown, 68 Id. 358; Campbell v. Smith, 71 Id. 28; Johnson v. Morgan, 68 Id. 496; Vrooman v. Turner, 69 Id. 282; Goldenburg v. Hoffman, 69 Id. 326; Miller v. Winchell, 70 Id. 439).
    II. The right of Mrs. Gilson was express under the declaration of trust; the second clause was intended to provide for such- incumbrances as this. If there be any • doubt as to the construction, it should be strictly against defendant (Ripley v. Larmouth, 56 Barb. 21; Marvin v. Stone, 2 Cow. 781; Griffin v. First Presbyterian Church, 56 Barb. 114).
    III. As between the parties to the deed of November, 1873, Lea and Sergeant, the land is the primary fund for the payment of the mortgage, and the grantor, Lea, is entitled to have it so applied as to protect him from the deficiency he paid. Fabbri here stands in no better position as to Lea than Sergeant stood, and as between Lea and Fabbri, the plaintiff is entitled to have the $2,500, realized by Fabbri from the Ewen purchase, applied to relieve Lea from the deficiency which he has been compelled to pay on the mortgage, which was assumed by Sergeant as part of the consideration of' the conveyance of such Ewen property, the same having been deducted from the consideration (Comstock v. Drohan, 71 N. Y. 13, and 15 Supreme Court [8 Hun] 373.) There was a lien on such Ewen purchase, for such unpaid purchase-money. The court of Appeals, in Comstock y. Drohan, says: “ The land was the primary fund for the payment of the mortgage, and as against the defendant, the plaintiff was entitled to have it so applied before being called capon to respond to his liability as her surety, so that he might not be compelled to advance more than the deficiency which should arise on a sale of the mortgaged premises. For this deficiency, paid by him, the defendant was clearly liable to him.” A grantee is bound to fulfill covenants on his part, in a deed executed by the grantor only, and acceptance of the deed and property binds him to pay a mortgage he has assumed therein, and he is liable to the grantor for the deficiency found due on a foreclosure thereof (Spaulding v. Hallenbeck, 35 N. Y. 204; At. Dock Co. v. Leavitt, 54 Id. 35; Trotter v. Hughes, 12 Id. 74; Burr v. Beers, 24 Id. 179; Binsse v. Paige, 1 Abb. Ct. App. Dec. 138, note; Marsh v. Pike, 10 Paige, 595; Halsey v. Reed, 9 Id. 446; Rubens v. Prindle, 44 Barb. 336; Johnson v. Zink, 52 Id. 396; Mills v. Watson, 1 Sweeney, 374; Tillotson v. Boyd, 4 Sandf. 516; Ranson v. Copeland, 2 Sandf. Ch. 251; Thorp v. Keokuk Coal Co., 48 N. Y. 253, 257; Rector v. Higgins, 48 Id. 532; Mauri v. Hefferman, 13 Johns. 58; Ely v. McNight, 30 How. 97; Norman v. Welles, 17 Wend. 136; Hunt v. Amidown, 4 Hill, 345; Ferris v. Crawford, 2 Denio, 595; Jumel v. Jumel, 7 Paige, 591; Barker v. Bucklin, 2 Denio, 45; Trip v. Vincent, 3 Barb. Ch. 613; Garnsey v. Rogers, 47 N. Y. 233; Miller v. Watson, 5 Cow. 195; Baxter v. Ryers, 13 Barb. 267; Machaiwe Bank v. Culver, 30 N. Y. 313; Schweriger v. Hickok, 53 Id. 280; Bartlett v. McNiell, 60 Id. 53).

      Porter, Lowrey, Soren & Stone, attorneys, and George S. Hamlin, of counsel, for defendant, urged:
    I. The statements in regard to the Ewen purchase are immaterial. The deed from Lea to Sergeant did not, by including the Ewen purchase, render it subject to a mortgage upon other premises conveyed by the same deed. But if the premises were not subject to the lien of the mortgage, neither were the proceeds ; and if not subject to the lien of the mortgage then neither under the mortgage, nor the declaration of trust, were the proceeds applicable to the payment of this deficiency in preference to any other debt.
    II. The only question presented in this case, therefore, depends upon the construction of the second provision of the declaration of trust, viz. : “To pay such liens and incumbrances upon the premises as are not assumed by the buyers thereof.” The argument of the plaintiff, of course, is : The mortgage in question was an incumbrance upon the premises. It was not assumed' by the buyer thereof. It is, therefore, within this provision, and there is an express trust to pay this, in preference to general debts referred to in the third provision of the declaration. But this reasoning disregards very elementary principles in the construction of written instruments. 1. This provision must be construed in connection with the other portions of the instrument. The construction contended for by the plaintiff can be sustained only by taking the provision in its most literal signification and entirely dissevered from its proper connections. “It is a true rule of construction that the sense and meaning of the parties, in any particular part of an instrument, may be collected, ex antecedent-ibus et consequentibus. Every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that may be done” (Per Lord Ellenborough, in Barton v. Fitzgerald, 15 East, 541). 2. The general words of this provision must be limited and controlled by the scheme and purpose of the whole instrument. The provision is for the payment of “suchliens and incumbrances as are not assumed by the buyers.” But the buyers here referred to are not all buyers, but buyers upon a sale such as is pz’ovided for in the declaration of trust; that is, a sale by the trustee for the benefit of cz’editors. There is no mention or intimation of any other kind of sale, and this provision can properly extend only to incumbrances not assumed by the buyers on such a sale. “The matter in hand is always presumed to be in the mind and thoughts of the speaker, thoughhis words seem to admit a larger sense, and therefore the generality of the woz’ds used shall be restrained by the particular occasion” (Powell on Cont. 389; Van Hagen v. Van Rensselaer, 18 Johns. 423). “ All woz’ds, whether they be in deeds or statutes or otherwise, if they be general, and not express and precise, shall be restrained unto the fitness of the matter and the person” (Bacon's Law Maxims, Reg. 10. See also, Decker v. Furness, 14 N. Y. 615). “ Where a release acknowledged the receipt of $1, in full of a certain judgment. (describing it), and also in full of all debts, demands, judgments, executions, and accounts whatsoever, held, that it was restrained by the particular words, to the judgment only ; and did not operate upon a mortgage between the parties” (Jackson v. Stackhouse, 1 Cow. 122; See also McIntyre v. Williamson, 1 Ed. Chan. 34; Browning v. Wright, 2 B. & P. 13).
    III. The declaration of trust did not contemplate nor provide for, and has no application to, a case like the present. 1. The declaration of trust provided for the payment only of incumbrances upon the premises not assumed by the buyers thereof. It therefore presupposed a sale as a condition of such payment, and a sale upon which the assumption of the incumbrance by the buyer was possible. But here there was no opportunity for the buyer to assume the incumbrance. The sale was of necessity, by virtue of, and not subject to, the incumbrance. Its assumption by the buyer was impossible. 2. The declaration contemplated a sale by the trustee, and by him only. This was the essence of the trust, that the trustee should “sell the same for the benefit of the creditors of William Sergeant.” Ho other sale is mentioned or referred to in the declaration. Any other sale was outside and independent of the trust, and created a case not contemplated or provided for by it. The incumbrancer had his election. He might allow the trustee to execute the trust and sell the property, whenever he could sell for the benefit of' the creditors. He then became entitled to the benefit of the second provision of the declaration, that is, either to the assumption of the incumbrance by the buyer, or its payment by the trustee. He might, on the other hand, for his own individual benefit, enforce his lien and sell the property under it; but in so doing he withdrew the premises from the control of the trustee, and rendered the operation of this clause of the trust impossible (See Hoffman v. Ætna Ins. Co., 32 N. Y. 412).

      IV. A sale by the trustee for the benefit of creditors was a condition precedent to the operation of the first and second provisions of the trust. It is so expressed in the first provision. The payments are to be made to Mrs. Sergeant, if she shall join in the conveyance of the lands “so sold,” that is, sold by the trustee, “but not otherwise.” Can there be any question that the application of the phrase “ so sold” is. continued, and that when it says : “To pay such liens and incumbrances upon the premises as are or are not assumed by the buyers,” it means upon the premises so sold ?
    V. The payments under the first and second provis-. ions of the declaration were not of the essence of the trust, but were subsidiary to its proper administration, and the accomplishment of its main purpose. The trust was, in substance, to sell the premises “ for the benefit of the creditors of William Sergeant,” that is, the creditors generally ; and then, as indicated by the third provision, “to pay, compromise or settle all the just individual debts of William Sergeant,” not all, after the payment of those previously provided for. This embraced the entire general purpose of the trust. The previous payments were subsidiary and contingent upon their becoming necessary to the advantageous disposition of the property, and conveying a perfect title. This was obviously true in regard to payments to Mrs. Sergeant, for they were to be made only in case the amounts were agreed upon between her and the trustee, and she joined in the conveyance of the lands “ so sold.” And so of the payment of liens and incumbrances. If, upon a sale for the benefit of creditors, the buyer was unwilling to assume an incumbrance, and insisted upon a clear title, then, as in the case of the dower right, the trustee was authorized to pay it, in order to facilitate such a sale, and carry out the general purpose of the trust.

      VI. The construction contended for by- the plaintiff is inconsistent with any presumable intent of the parties. 1. The result of this construction is to add to the security of the existing lien or incumbrance the further security of a preference, under the declaration of trust. The payment of the secured creditors, it is obvious, may, and in fact will, exhaust the entire fund, leaving nothing whatever for the unsecured creditors. There is nothing in the circumstances or in the instrument itself to explain so unusual a provision. There is no conceivable motive for such a gratuity to the incumbrancer. It is clear that, if understood in this way by the unsecured creditors, they would never have acquiesced in it, if they had the power to defeat it. And vat that,time they had such power. 2. Such a preference was forbidden by the bankruptcy act, which was in force at the time of the execution of the conveyance and declaration of trust. But the court will not adopt a construction which renders an instrument unlawful or invalid, when its language admits of an interpretation entirely consistent with its legality and validity. “ If the language of a deed or will is susceptible of two constructions, and by adopting one of them it would be unlawful, while if the other were followed it would be valid, the latter interpretation should be given, ut res magis valeat quam per eat” (Post v. Hover, 33 N. Y. 601; Townsend v. Stearns, 32 Id. 214; Benedict v. Huntington, Id. 219).
    VII. It is not enough to entitle the plaintiff to payment in full, even upon his own construction of the trust, for him to show that the moneys realized are ample, after provision for the dower of Mrs. Sergeant, to pay his claim in full. There were other liens and incumbrances, and it was incumbent upon him to show either that they were assumed by the buyers, or, if not, that the moneys realized were sufficient to pay those incumbrances in full, as well as his own.
   By the Court.—Sedgwick, J.

The plaintiff, upon his conveyance to Sergeant, had only such rights as arose from Sergeant’s promise to pay the mortgage, with the rights of a surety, that enabled him to require that the mortgaged property should be first applied to the payment of the mortgage debt. The clause by which Sergeant assumed the payment of the mortgage, stated that the amount of the debt had been deducted from the consideration money. It is manifest that there remained no equitable lien for this part of the consideration, either upon the premises conveyed or, even upon the part of them mortgaged; for such a lien, if it could have otherwise existed, could not remain, upon its appearing that the assumption of the mortgage was to be the part consideration, in lieu of money. The rights of the plaintiff did not affect Sergeant’s power of disposition of the whole of the equity of redemption of the mortgaged part, and the fee of the other part. Sergeant had no. obligation, excepting his agreement to pay the mortgage.

The only additional right claimed by the plaintiff is such as arises from the provision in the declaration of trust made by the defendant, upon the conveyance by Sergeant of certain property, including the particular premises—that the property is held in trust1 ‘ to sell the same for the benefit of the creditors, and out of the net proceeds of said sales and rents, and of other profits and receipts from the said premises, after deducting payments for interest, taxes, insurance and repairs: First, if the wife of the said William Sergeant shall join the conveyance of the lands so sold, but not otherwise, to pay her such sums as shall be agreed upon between her and the said Ernesto Gr. Fabbri, as compensation for her right of dower. Second, to pay such liens and incumbrances upon the premises as are not assumed by the buyers thereof,” &c., &c.

The plaintiff argues that the land in question has been sold in the foreclosure of the mortgage, and the buyer has not assumed the payment of the mortgage, therefore, his case is described by the second subdivision, and the trustee must pay it. It seems that this subdivision must mean, that the payment of the liens must be out of the net proceeds of the land on which the liens were, and not out of tíre net proceeds of other lands sold. The trustee has not sold the lands upon which the plaintiff had the lien. He has not, nor has he had net proceeds upon a sale made by him, as provided for by the declaration.

Again, the subdivision must mean a payment of liens out of proceeds of a sale made by the trustee under the trust, when it would be a possible thing for a buyer to assume an incumbrance. The argument implies that the clause was to be operative only after some sale of the particular land had taken place, otherwise, the obligation of the trustee were to pay, as soon after the making of the declaration as there were net proceeds of the sales of any lands, whether the mortgaged lands were or were not sold. I think it is evident that a sale was referred to, in which an assumption might be agreed for, rather than one made in a proceeding which merged or canceled the mortgage so far as the buyer was concerned. To make the agreement, without dispute, explicit on this point would not call for the supplying of words, that are now understood, to any greater extent than is usual in the ordinary methods of conveying ideas. Very few sentences, made according to usage, do not refer to words understood, and there is no obscurity or vagueness, if the custom in that regard is observed. If a particular thing is once mentioned, succeeding" statements, which ,in their nature may be applied to those particular 'things, are, by the known customs of. speech, considered as meant to be applied to them. The two are meant to be in. the mind atone time, and to be thought of together.

■ The trust is to make sales of the premises, and out of the net proceeds of those sales to pay the liens on the premises sold, if the liens are not assumed by the buyers, at such sales. There is no trust to pay any lien, if the land on which the lien is, is not sold by the trustee.

I am of opinion, that the judgment should be for the defendant, and that the plaintiff is only entitled to share pro rosta with the other creditors of William Sergeant, under the thiid clause of the declaration of trust, with costs to the defendant.

Speir and Freedman, JJ., concurred.


author: By the Court.—Speir, J.

text:
    THOMAS A. DAVIES, Plaintiff and Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendants and Respondents.
    Landlord and tenant.—Municipal corporations, when chargeable WITH RENT OP PREMISES.
    The liability of a tenant holding over his term for a specified rent, under the Revised Statutes, is based upon, the fact that the tenant took possession originally under a lease legally made.
    The resolution of the board of supervisors is not sufficient to authorize a lease to be made to the mayor, aldermen, and commonalty of the city of New York. This can only be done by a resolution of its legislative body, namely, the common council (People v. Stout, 23 Barb. 338; Baker v. Mayor, 9 Abb. Pr. 82); and for a period not exceeding five years (Charter, § 18).
    The board of supervisors cannot legislate in behalf of the city. Persons dealing with the agents of a municipal corporation must learn the nature and extent of such agents’ authority (Hodges v. Buffalo, 2 Denio, 110).

      Before Sedgwick and Speir, JJ.

      Decided November 3, 1879.
    The recorder has no authority, by his own independent action, to impose any liability upon the city (Supervisors of Richmond County v. Ellis, 59 N. Y. 620), and his act, in continuing in possession of the premises beyond the time for which rent was paid, was unauthorized, and no claim against the county or city of ITew York can be predicated thereon.
    Appeal from order directing verdict for the defendant, exceptions to be heard in the first instance, at general term.
    The facts in the case appear in the opinion of the court.

      Edmund Coffin, Jr., attorney, and of counsel, for plaintiff, urged:
    I. If an original lease was legally made in 1872, by which the corporation, now known as the mayor, aldermen, &c., was made liable for rent for the plaintiff’s premises, the liability continued under the Revised Statutes relative to tenants holding over (Witt v. Mayor, &c., 5 Robt. 248; 6 Id. 441; Schuyler v. Smith, 51 N. Y. 309; Marquart v. La Farge, 5 Duer, 559; Taggart v. Roosevelt, 8 How. Pr. 141.) If the original letting was by parol, the obligation for rent while holding over continued in same manner, and the allegation of a lease in writing is an immaterial variance (Thomas v. Nelson, 69 N. Y. 118; Dorr v. Barney, 12 Hun, 259.) If the obligation to pay rent was originally duly contracted by written lease or by parol letting on behalf of the board of supervisors, the obligation was continued to the “mayor, aldermen and commonalty,” and they are properly sued for this holding over since 1874 (Laws 1874, p. 360, c. 304; Schenck v. Mayor, &c., 67 N. Y. 44.)
    II. The recorder is, and was in 1872, an officer both of the city corporation, and of the county corporation, and either of these municipalities could legally and properly, in that year, have made a lease for his chambers for official business. The office of recorder is recognized in every charter this city has ever had, from the Dongan charter, section 6, to that of 3870, section 116. By chapter 488 of the Laws of 1847, in section 4, it was provided that the salary of the recorder should be “fixed” by the “board of supervisors of the city and county.” In the Code of 1848, section 9, his court is not recognized. In that of 1849, section 9, subdivision 14, seems to embrace it; and section 28 seems to throw upon the supervisors the duty and obligation of providing his necessary rooms for transaction of court business ; but many duties of the recorder, requiring chamber work, outside of a court, as such, remained. By Laws of 1852, p. 409, c. 275, it is provided that “the board of supervisors of the city of New York” may increase his salary, and by Laws of 1855, c. 575, the same provision is re-enacted, using the same expression as to the board being that of the city and not of the county. In none of this legislation does there appear to be any express enactment as to the source of payment of this salary. In 3869 the supervisors made the salary of the recorder equal to that of a justice of this court. Their action was approved by the legislature, as follows (1 Laws 1872, p. 908): “ § 2. The resolution of the board of supervisors of the county of New York, adopted December 27, 1869, and approved by the mayor on December 28, 1869, respecting the salary of the recorder and city judge, by the terms of which it was made equal to that of the judges of the superior and common pleas courts of the city and county of New York, is hereby legalized. ...” “§ 3. No other compensation shall be allowed to the recorder or city judge for holding any other court, or in dispossession or other judicial proceedings appertain; ing to their office, but this shall not prevent the board of supervisors from providing chambers for such judges. . . ” Immediately after the passage of this act of 1872, the supervisors passed their resolution, and the recorder entered into the occupation of the plaintiffs premises, and continued to use them for his official chamber business, until after May 1, 1877. We have then, in this case, an officer required by law to perform duties under the city charter, which implies that the city provide a place for him to perform the duties in, and naturally makes the expense a city charge. This is the precise doctrine laid down in Witt v. Mayor, by this court, where the rooms were hired for the use of the street commissioner, who was an officer of the city. We have, in addition, an express provision of the legislature, authorizing the providing of chambers for the recorder, leaving the designation of those rooms to the provision of the supervisors, but not specifying directly that the board of supervisors must hire the same, nor in any way making the cost of these chambers a county charge. The plaintiff claims that the original rent of these premises was a city charge, authorized by law to be contracted by resolution of the board of supervisors.
    III. The recorder entered into and used these premises under a valid contract, which bound either the city corporation or the county corporation to pay rent. Whichever was the contracting party, the defendant, since 1874, is estopped from denying the obligation, and is the proper party defendant under the chapter 304 of that year. The resolution of the board of supervisors, in 1872, authorized the entry and occupation by the recorder at the municipal expense. The evidence is clear that the auditor had before him, in 1876, a lease duly executed by somebody. This lease so referred to by the auditor in 1876, the city does not produce on demand. They are therefore estopped to deny its due execution. All this vexatious distinction between the dual' governments is done away with by the act of 1874. There can be no question but that it is the mayor, aldermen and commonalty who were holding over, and liable to pay on that account, whether they held over under a lease made in the name of the city corporation or of the county corporation, or on a lease made by parol in the name of neither. The fact, that the complaint alleges a written lease in the name of the defendant in 1872, is an immaterial variance from any one of the three hypotheses (Thomas v. Nelson, 69 N. Y. 118). The corporation relies upon the decision of this court in Farmers’ Loan and Trust Co. v. Mayor (4 Bosw. 80). In that case the mayor and .the comptroller, without any ordinance of the common council or of the board of supervisors, or any legislative enactment, had undertaken to bind the city corporation by a lease of a pier for three years for the purpose of removing offal. After the use of the pier had continued for nearly two years, the common council, by due ordinance, directed that a public pier be set apart for the purpose. The plaintiff was paid the rent up to May 1 after the passage of this ordinance, and the action was to recover the rent under the contract of lease for the remaining year of the term. This court held that the city could not be made liable on an executory contract of lease for that purpose made by any other authority than an ordinance of the common council. The case is clearly distinguishable from the present one. This original hiring was made by due authority of the board, authorized by act of legislature. The entry and occupation of the recorder was by right, and legal. The claim is for holding over, which is a quasi trespass (Schuyler v. Smith, 51 N. Y. 309).
    IV. The ordinance passed in 1876 does not amount to any defense. In the first place, the ordinance was conditional to a certain extent upon the provision which the commissioner of public works was to make, and which he did not make; and, in the^next place, the ordinance was not followed by vacation of the premises. The case is on all fours, in this respect, with Witt v. Mayor (supra). This case was twice argued and carefully considered (Schuyler v. Smith, 51 N. Y. 316), and is decisive of the case at bar.

      William C. Whitney and D. J. Dean, of counsel, for defendant, urged:
    I. The resolution proven on the part of the defendant is insufficient to authorize the alleged lease. The resolution purports to be a resolution adopted by the board of supervisors, acting in behalf of the county of New York. The alleged lease was a lease made by the mayor, aldermen and commonalty, which was at the time, May, 1872, a corporation independent and distinct from the county. A lease on behalf of the city can be authorized only by a resolution of its legislative body, to wit: the common council. The city is distinct from the county ; that the board of supervisors cannot legislate in behalf of the city, is established by abundant authority (People v. Edmonds, 15 Barb. 529; Halstead v. Mayor, 3 N. Y. 430; Baker v. Mayor, 9 Abb. Pr. 82; White v. Mayor, 2 N. Y. Leg. Obs. 26).
    II. Conceding that the resolution was sufficient to authorize a hiring of the premises in behalf of the county, and that the city has become liable for the debts of the county, the resolution limits the hiring to a term of one year from May 1, 1872, and does not authorize the occupation of the premises named by the recorder beyond that time. The recorder had no power, by his unauthorized act, to impose liability upon. the city. It is well settled that no liability can be incurred by the officials of the corporation, payable from the public treasury, except in accordance with the limitations of law ; and the legislature has been strict and precise in defining the conditions upon which the indebtedness against the corporation can be established. The power to lease real estate for corporate purposes is necessarily inherent in the corporation, to be exercised through the common council, and is limited by section 18 of the charter, providing that the common council should have no power to take a lease of real estate for a period exceeding five years. But no authority is anywhere given to any officer of either the city or county to incur indebtedness for rent of real estate, without the assent of the legislative body of the corporation. As to the period of occupancy of the premises in question by the recorder, subsequently to May 1,1873, the defendants contend that such occupation was not authorized by any resolution either of the supervisors or of the common council, and such holding over was therefore an individual act of the recorder, unauthorized by law, for which he only, and not the corporation, is responsible. The case of Farmers’ Loan and Trust Company v. Mayor (8 Bosw. 80), is analogous to the case at bar. The judgment in that case was based upon the well established principle that a municipal corporation is not bound by the unauthorized act of its official, which is illustrated in the following cases: McDonald v. Mayor, 4 Super. Ct. 177; S. C., 68 N. Y. 23; Burns v. Mayor, 5 Id. 371; Brady v. Mayor, 20 Id. 312; S. C., 2 Bosw. 173; Donovan v. Mayor, 33 N. Y. 291; Hodges v. Buffalo, 2 Denio, 112; Appleby v. Mayor, 15 How. Pr. 428; Supervisors v. Bates, 17 N. Y. 242; Smith v. Mayor, 10 Id. 538; Ellis v. Mayor, 1 Daly, 102; Bonesteel v. Mayor, 22 N. Y. 162; Dillon on Munic. Corp. §§ 272-381. Even in a case where the board" of supervisors had audited an account presented to them, and the money directed to be paid by such audit had been paid to the claimant thereof, and it appeared that the claim so audited was not a legal county charge, it was held-that the payment of the money by the county treasurer, as directed by the board of supervisors, was an unauthorized act of the agent of the county, and did not bind the county ; and that an action would lie to recover back the money from the recipient thereof (Supervisors of Richmond v. Ellis, 59 N. Y. 620). It therefore follows that neither the county of New York, nor the city of New York, could be bound by the unauthorized act of the recorder, and that no claim against them can be predicated upon such act.
    III. The act of the recorder in continuing in possession of the premises named, was not only unauthorized by any resolution of the common council, but was in contravention of a specific resolution of the common council, assigning to him other premises for his chambers. When the corporation, by the resolution of the common council designated another place for the chambers of the recorder, the corporation had done all that it was called upon to do through its legislative body, in order to provide the accommodations required for the recorder’s business. The resolution repels any presumption of assent on the part of the corporation to the continued occupation of the plaintiff’s premises, by the recorder, and also repels any implication of authority existing in the recorder to hold over. That the premises named in the resolution of the common council were not fitted for the occupation of the recorder until June is no legal justification to him in continuing to occupy the plaintiff’s premises. It was his business to vacate the plaintiff’s premises, and use the premises assigned to him by the common council as well as he could.
   By the Court.—Speir, J.

The plaintiff claims to recover from the defendants for the use and ©occupation of the premises in question for the four quarters of the year, from November 1, 1876 to November 1, 1877, as a tenant holding over after the expiration of a lease; that the defendants were made liable for the rent of the premises, and that the liability continued under the Revised Statutes relative to tenants holding over.

As the answer puts in issue by a positive denial, the lease claimed to have been executed by them, the first question presented on the threshold of the case is, was any such lease executed ? The plaintiff, to prove the lease, gave evidence that he was the owner of the premises for a term of years ; that he received from his authorized agent a lease of the premises, executed by the mayor in behalf of the city, hiring them for one year from May 1, 1872, at $2,000 a year. The authority for executing the lease consisted of a 'resolution passed by the board of supervisors, May 13, 1872. At that time a lease on behalf of the city could only be authorized by a resolution of the common council, its legislative body. The board of supervisors could act only in behalf of the county of ¡New York, and could not legislate in behalf of the city, which is a corporation independent and distinct from the county (People v. Stout, 23 Barb. 338; Baker v. Mayor, &c., 9 Abb. Pr. 82).

It will not be claimed by the plaintiff’s counsel that any liability is incurred by the defendants under the Revised Statutes, by holding over, unless the tenant took possession under a lease legally made, and continued in possession thereunder by permission of the defendant, without notice. The lease was not lawfully executed by any one having authority. Conceding that the resolution was sufficient to authorize a hiring of the premises in behalf of the county, and that the city has become liable for the debts of the county, the authority, by the resolution, limits the hiring to a term of one year from May, 1872, and does not authorize the recorder to occupy the premises beyond that time. The recorder has no authority, by his own independent act, to impose liability upon the city (Board of Supervisors of Richmond County v. Ellis, 59 N. Y. 620). The legislature has distinctly defined the conditions upon which the indebtedness against the corporation can be established. Again, the power to lease real estate for corporate purposes is limited by the 18th section of the charter, and can be exercised only through the common council, and they have no power to lease real estate for a period exceeding five years.

The main reliance of the plaintiff’s counsel is upon the proposition that those dealing with the agents of a municipal corporation have no right to presume that they are not acting within the line of their duty, and need not ascertain the nature and source of their authority. Hence the assumption that the recorder, having acquired possession of the premises for a year, either by a written or verbal lease from the board of supervisors, the obligation was continued to the mayor, aldermen, and commonalty, and they therefore became liable for this holding over. The first answer to this is, that there was no authority for the original possession, and the statute relating to the doctrine óf holding over has no application. The second answer is, that it is fundamental that those dealing with the agents of a municipal corporation must take care to learn the nature and extent of their authority (Hodges v. Buffalo, 2 Denio, 110).

There is no presumption of assent on the part of the corporation, in the resolution relied upon, that the occupation of the plaintiff’s premises was tobe continued, nor does it imply any authority existing in the recorder to hold over.

The plaintiff’s exceptions are overruled, and judgment for defendants should be entered on the verdict, with costs.

Sedgwick, J., concurred.


text:
    HERBERT B. FREEMAN, Plaintiff and Respondent, v. JOHN M. FALCONER, Defendant and Appellant.
    Before Speir and Freedman, JJ.

      Decided November 3, 1879.
    Party in interest.
    Under the Code, a plaintiff is the real party in interest when he has a valid transfer, and holds the legal title to the demand that is the subject of the action.
    It is not necessary that there should be any valuable consideration for the transfer or indorsement of the demand to the plaintiff.
    The defendant is fully protected by a payment of the same, on a recovery by the assignee or indorsee of the demand. ■
    The grounds of reversal by the court of appeals, of the case of Hays v. Southgate (10 Hun, 511), not applicable to this case.
    Reargument of appeal from judgment in favor of plaintiff, and from order denying motion for new trial.

      Thomas & Wilder, for appellant.

      C. F. Wells, for respondent.

       See 44 Super. Ct. 133, 579.

   By the Court.—Speir, J.

This case comes before us for reargument in pursuance of an order made by the general term of this court, November 4, 1878.

Upon the trial it appeared that the notes in suit were made by the firm of J. M. Falconer & Co., to the order of Manning, Bowman & Co., who especially indorsed them to the plaintiff and directed payment to his order.

The defendant John M. Falconer offered to prove that the payees named in the notes, Manning, Bowman & Co., were the real owners thereof, and that the plaintiff held them merely as their agent and for the purpose of collecting and remitting the proceeds. The evidence was excluded, and the defendant excepted.

The appellant’s motion for a reargument was granted by the general term before whom the case was argued, chiefly on the ground that the case of Hays v. Southgate (10 Hun, 511), had been reversed by the court of appeals, upon which it was claimed the court relied, and also in view of the later decision of Taylor v. Sargent, reported in 6 Weekly Digest.

We see no ground for the reversal. The whole case was properly disposed of by the trial judge, and the review and decision of the general term must stand.

The question upon which the reargument was ordered, related to the plaintiff’s title, whether he was the real party in interest. A plaintiff is the real party in interest under the Code, if he has a valid transfer as against the assignor, and holds the legal title to the demand. It is not disputed but that the notes were made by John M. Falconer & Co., to the order of Manning, Bowman & Co., who especially indorsed them to the plaintiff. No question was made that they were not delivered to the plaintiff for the purpose of collection. It is not necessary there should be any consideration for the indorsement; the assignors could give the demand to the plaintiff, or sell it to him for a merely nominal consideration, or without any consideration. It is enough that if the plaintiff has the legal title to the demand, the defendant is protected by a payment to and a recovery by the assignee. The questions raised b'y the decision of the court of appeals reversing Hays v. Hathorn, are not presented here. The issue there was that the note was not the property of the plaintiff, for the reason that it had never been transferred to him—that he had no title, legal or equitable, to the note, and no right as owner to the possession. The possession here was lawful, for the transfer was made by the assignors for the express purpose of collecting the amount due upon the note.

The judgment and order must be affirmed with costs.

Freedman, J., concurred.