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    JOSEPH B. HEISHON, Plaintiff, Appellant and Respondent, v. THE KNICKERBOCKER LIFE INSURANCE COMPANY, JOHN A. NICHOLS and CHARLES M. HIBBARD, Defendants, Appellants and Respondents.

    I. Parties, examination of.
    1. Before complaint served.

      (a) Affidavits, sufficiency of. ¡

    1. When they indicate that the examination may be- necessary to enable the plaintiff to give formal expression to the allegations which must in the end constitute his complaint, they are sufficient.
    Before Van Vorst and Speir, JJ.

      Decided March 3, 1879.
    2. Fullness oe statement oe cause oe action, eepect oe.

      (a) Does not establish no necessity for an examination, when.
    This was a motion noticed for and made at special term, for the examination of defendants Nichols and Hibbard, and an inspection of the books of the company, before service of the complaint, for the purpose of enabling the plaintiff to make and serve his complaint.
    The application was made on the petition of the plaintiff, the affidavits of James F. Emery, Mark Uhl, Joseph H. Wells, and of plaintiff, and the annual reports of the company from 1867 to "1876, both inclusive, which reports are not contained in the appeal book, but which were read, according to plaintiffs’ points, to show a deficit of over $2,286,000 in the financial management of the company, and an unlawful disbursement of over $5,049,000 in canceling and reducing the amount and number of the company’s risks.
    In opposition to the application, the affidavit of Charles M. Hibbard was read.
    The affidavit of Emery set forth that he was the plaintiff’s agent in the matter of this action, and made the affidavit on his behalf; and alleged:
    “This action is brought as well for the benefit of the plaintiff as of all other piolicy-holders of said corporation similarly situated, who may come in and contribute to the prosecution hereof and become parties hereto.
    “The nature of the action, the substance of the cánse of action, and the nature of the judgment which will be demanded herein, are as follows, substantially:
    “The plaintiff claims, and in his complaint will aver, that the transaction hereinbefore set forth of the procuring from him of the surrender and cancellation of his "said four policies, and the inducing of him to accept said three new policies, in exchange therefor, was a fraudulent transaction, by reason of its having been a part and parcel of the said fraudulent and unlawful ‘scheme’ for ‘twisting’ policies, and of its having been made by said defendants part and parcel of the said wrongful conspiracy and combination, and by reason of the wrongful extortion and procurement from him of his said note for $167.67, and by reason of „ the said false and fraudulent pretenses and representations, made to him, to induce him to enter into such transaction, and by reason of its having been a breach of trust on the part of said defendants ; said plaintiff will further claim and allege, that he was and is entitled to vote as a corporator, by reason of his rights as a policy-holder, in the election of directors ; also, that the entire assets of said corporation, which amounted to over $7,000,000 at that time, were held in trust for the plaintiff, and all other policy-holders, at all times since the date of plaintiff’s policy first above. mentioned ; that his said four policies were mutual, or participating policies, and entitled to share in all the profits of said corporation ; and that, by reason thereof, said plaintiff was and is, at any time, entitled to an accounting of the business and affairs of said corporation, and entitled to demand and have all rights and remedies, incident to the visitorial powers of a court of equity, over all trust relations and trust ■ estates ; and that said defendants were and are the trustees of the plaintiff, as a policy-holder in said corporation.
    “Plaintiff will also claim and aver in his complaint herein, that said individual defendants, and divers other persons unknown to me or the plaintiff, have, at divers'times since the issuing of plaintiff’s policy first above mentioned, diverted, misappropriated and converted to their own use large amounts of money belonging to said corporation, and forming part of the said trust estate; that illegal dividends have been made, from time to time, to stockholders of said corporation, who were and are unknown to me, or the plaintiff; and that said corporation, by and through its board of directors and its officers, has done and committed divers acts and things which were illegal and in excess of the powers of said corporation, thereby working a forfeiture of its charter. Said plaintiff will claim and aver that he was deceived in said transaction ; that he released and surrendered his said four policies, and gave said note and accepted said new policies, while wholly ignorant as to the value of his said old policies, and of the true amounts of the dividends, or profits, which stood to their credit on the books of the company ; and as to the true position of the company as to financial solvency and prosperity ; and as to the correctness of the computations upon which said surrender and changes were made; and as to the justice or necessity of his giving and paying said note ; and also as to all other material facts touching the said transaction ; and that he had no sufficient knowledge of the true nature of the transaction, or of the fraud so practiced upon him, until about November, 1877.

      “ Said Heishon will further allege and claim, that he paid certain premiums on said new policies ; and that he was and is, on an accounting, entitled to certain large dividends and profits upon his said old policies ; and that there will be found due to him, by and in said corporation, sufficient amounts to pay and cancel all the premiums which have become due and are unpaid, if any, on said old policies : and that he is entitle d to a rescission of said transactions, and to pay up all premiums which may be found due .from him on a restoration of said old policies.
    “ The judgment or decree demanded herein will be for a cancellation and rescission of the whole of said transactions with him ; the cancellation of said three new policies, and the restoration and reinstatement of the said four old policies to their position prior to such surrender, and the restoration of said plaintiff to all his rights, as they existed under said four old policies; and for an accounting as to the profits or dividends lawfully due or belonging to said four policies and each of them ; and for a general exhibit and accounting of the management of the affairs of said corporation ; and for a restoration and return by the officers and stockholders of said corporation, and by said defendants, Nichols and Hibbard, of all moneys wrongfully received or used, or misapplied by any or either of them, out of said trust funds, or in any manner in connection with the business of said corporation, or any of the matters aforesaid; and for the right, on such account being taken, to pay up any premiums which may be found due by said plaintiff, to said corporation, and to continue said old policies thereafter in full force and effect; and for such other, or such further relief in the premises, as to the court may seem proper ; and for the appointment of a receiver, to continue hereafter the regular business of said corporation, and for the cancellation and retirement of the entire guarantee capital of said company, if the same shall seem to be necessary to insure its future solvency.
    ‘ ‘ For the purpose of enabling the plaintiff to make and serve his complaint herein, it is necessary to take the examinations or depositions of said defendants, John A. Nichols and Charles M. Hibbard, individually, and of the said John A. Nichols, as the president, and on behalf of said corporation, touching the matters hereinbefore set forth, to wit: To examine said corporation, by and through its said president, as to all facts relating to the said policies, old and new, so issued, to said plaintiff ; the said surrender thereof by said plaintiff ; the amount paid or allowed to plaintiff for the same; also the facts touching the carrying out of said scheme ; the number and amount in the whole, of all such surrenders or changes, and the nature thereof; the surrenders themselves, signed by the policy-holders ; the names of the stockholders of said corporation, the amounts of stock held by them respectively, that they may be made defendants herein, if the plaintiff be so advised ; whether or not any dividends or profits have wrongfully accrued or been paid to any person, and to whom, in the course of the business, and out of the funds of said corporation, since the dates of the plaintiff’s said four old policies ; all of which matters will appear in and by the books, records and papers of said corporation, and which are within the knowledge and under the official control of said John A. Nichols, as such president.
    “To examine said Nichols individually, as to what, if any, amounts of money, dividends, or profits, he has made or received, out of and by means of the said unlawful acts and matters hereinbefore set forth, either as an officer, employee, or stockholder; and as to his knowledge of the said wrongful acts of said Hibbard ; and when such knowledge was acquired.
    “To examine said Hibbard as to the wrongful acts and matters hereinbefore set forth and charged to him personally, as to the true mathematical calculations and values relating to said four old policies, for all the purposes aforesaid; as to the extent and number of the said false records, so alleged to have been made by him ; and as to the false or other entries made in connection therewith, in the books of the said corporation, so far as he knows the same ; and as to the use made by him of said note of $167.67, and whether or not, he, or any other person, and who, received or used the proceeds thereof; and as to what amount of money he wrongfully exacted or received from myself in connection as aforesaid with my said employment, and what use he made of the same ; and whether or not he paid the same over to said corporation.
    “I further aver, that said corporation has been requested to "produce, or to allow an examination of, the plaintiff’s release, or releases, of his said four old policies ; and I am informed that it has refused to grant such request; and that it is necessary that each of said twisted policies, and the releases thereof, be exhibited to plaintiff’s counsel to enable the plaintiff to make his said complaint; and I ask, on behalf of said plaintiff, that an order be made, directing said defendants to be examined as herein set forth, and according to law and the practice of this court; and directing said corporation to deposit with the clerk of this court all the said twisted policies (517) whose numbers are given in ‘ Exhibit A,’ forming part of this affidavit, and the releases thereof, on or before the day fixed for such examinations, that the plaintiff and his attorney may inspect and copy the same for the purpose aforesaid.”
    Prior to the statements above extracted, the affidavit had in substance set forth that said company was organized on a basis of a guarantee capital stock of $100,000, divided into $25 shares, with power to increase ; that by its charter, and various amendments thereof, the owners of the guaranteed capital were entitled to an annual interest of seven per cent, and to twenty per cent, of the net earnings, the remaining profits to be divided equitably among those policy-holders whose policies were issued on the mutual or participation plan; ,and each insurer to whom profits should be apportioned was entitled to one vote under qertain conditions, at each election of directors ; and the business of the company was placed under the control of a board of directors, one-half of whom were required to be stockholders, and the remainder might be chosen from among the insurers for life; and it was provided that the business of the company should be conducted on the mutual principle, but that any person might obtain insurance without participation in the profits.
    It had further set forth that the business of the company had been almost wholly conducted on the mutual principle.
    It had further set forth that prior to October 24, 1866, the company had issued to the plaintiff on his four several applications its four several policies, by each of which, in consideration of certain payments to be made, it insured the plaintiff’s life during the whole continuance thereof, in the sums in said policies mentioned (to wit: $1,500, $2,000, $1,500, $5,000), upon certain terms and conditions which the affiant was unable to specify, the policies being in possession of the company.

    It had further set forth that plaintiff had kept and performed all the terms and conditions of said four policies to be by him kept and performed, until November 21, 1873.
    It had further alleged as follows : “Said plaintiff has informed me, and I verily believe from such information, and from the nature and circumstances of the transactions hereinafter named, that said plaintiff is not sufficiently familiar with the facts, and has not the requisite knowledge, or information, touching all the matters herein referred to, to enable him to make this affidavit, or to make and serve his complaint in this action, nor does he know the sources of such requisite knowledge or information from which the same can be obtained, nor do I myself, except as herein set forth.”

      It had then further alleged that about February 1, 1873, the company employed the affiant to obtain from the holders of old policies on which a large liability had accrued, and as against which the company was required by law to keep safely invested a large reserve, and to obtain from the holders of premium loan, or note, policies, the surrender and cancellation of the same, and to induce them to accept in exchange therefor new policies, to be issued at the advanced ages of the insured, and at the increased rates of premium required at said advanced ages; and also employed the affiant to purchase outstanding policies for amounts considerably less than the legal reserve required to be kept thereon ; it had further alleged that the affiant was so employed for the purpose of carrying out an extensive scheme of procuring the cancellation of said old policies by means of fraudulent concealment of facts, and false and fraudulent statements, and had set forth the general character of" the concealments and misrepresentations to be adopted. It had then averred that said scheme was adopted mainly under the management and direction of defendants Nichols and Hibbard, and that the affiant was employed at the instance of said Nichols for the express purpose of carrying out such scheme, and then proceeded: “ The object of such scheme was, and my instructions were, by the means aforesaid, and by all or any means, to induce as many as possible of the policy-holders of said company to surrender and cancel their policies, the effect of which would be, and was, very greatly to lessen the apparent 1 liabilities ’ of the company, at least to the extent of the £ reserve ’ set free, or liberated, by the process of cancellation of policies, less the expenses and allowances ; also to get rid of a large amount of premium notes and loan notes; also to acquire a large amount of apparently new business ; and also to wrongfully and unlawfully make and acquire a large amount of apparent profits, out of which large dividends of money or scrip could be wrongfully and unlawfully made, to and for the owners of the said guarantee capital.”
    It had then further set forth that during the employment of the affiant, he and his assistants had obtained, in the manner and for the purposes aforesaid, the cancellation of one thousand policies or more, and then proceeded to allege: “I cannot give an exact estimate, or statement, of the precise extent of my services, or make any exact estimate of the gain or profit to said company, or to its stockholders, or to said defendants personally, for the reason, that shortly after the termination of my said employment, my desks, which contained the books, papers and records connected with my said business and employment, and nearly all of my private books and papers, and which were in the rooms used by myself and my assistants, and in the building of said corporation occupied by it for its offices, were wrongfully broken open, and said books, records and papers taken, or stolen therefrom, and I have never since seen them, or been able to obtain them; and I verily believe that they were so taken by said defendant, Charles M. Hibbard, and one Upson, then and now chief bookkeeper of said company.”
    It had then further set forth that in the course of the affiant’s employment, he had instructed various local agents of the company located in different parts of the country in the “method and mysteries” of obtaining cancellations of policies, and on information and belief, that subsequent to his employment the said scheme was extensively prosecuted by many, if not all, the agents of the company.
    This affidavit then proceeded as follows :
    “From all the facts and information herein alleged, I verily believe that a very large amount of money— many hundreds of thousands of dollars—of wrongful or illegal profit or gain resulted to the company, and to all the stockholders thereof, by means of the adoption and prosecution of said alleged scheme.”
    It had then set forth, on information and belief, that defendant, Nichols, owned a majority of the guarantee' capital, and was thereby enabled to, and in fact did, exercise absolute control of the management of said company, and that he had thereby wrongfully and inequitably acquired enormous profits for himself and fellow stockholders, to the great detriment of the policy-holders. It had further set forth that defendant, Hibbard, during the time of the affiant’s employment, had been, and still was, the actuary of the company, on a fixed salary. It had further alleged that Hibbard had informed the affiant that said Nichols (who, prior to being the president, had been vice-president of the company) had, previous to his vice-presidency, been general manager of the company for the Southern territory, and had accumulated a large business; and, in view of negotiations for the purchase by the company of his renewal interest in that business, he, Hibbard, at the request of said Nichols, had given a double valuation to such interest, and that such interest had been purchased by the company for a large amount. It had further set forth that in obtaining the surrender of old policies, the affiant and his assistants in nearly all cases obtained the necessary signatures to surrenders on the back of the policies without filling in the blank left for that purpose the consideration for the surrender, and that such blanks were afterwards, in some instances, and at least twenty-five, filled up by Hibbard with different and larger amounts than the true ones ; that the affiant believed such to be the practice of Hibbard in most cases ; that he, the affiant, called said Nichols’ attention to this practice of Hibbard, and exhibited to him papers sustaining the allegations as to the practice of Hibbard in this respect, but that Nichols never, to the affiant’s knowledge, took any action in that behalf against Hibbard. The affidavit had then further alleged : “I further state from the fact of said Hibbard’s falsifying, as aforesaid, the said surrenders, and the same having been brought, as aforesaid, to the knowledge of the defendant Nichols, and no action having been taking thereon against said Hibbard, there is-good reason to believe, and I do believe, that said individual defendants combined and conspired together to cheat and defraud the said policy-holders, by means of said £ scheme,’ and by false records and papers, and by causing the books of said corporation to be falsely kept, and thereby to obtain for their own use and benefit large illegal gains.”
    The affidavit had then alleged that plaintiff, in pursuance of said scheme, was induced by one of the affiant’s assistants named E. H. Nichols, to surrender his four old policies and to accept new ones at his then advanced age, and at largely increased rates of premiums for the kind of policies issued; that, as the affiant was informed and believes, such surrender was induced by the fraudulent and false representations of facts in the manner and of the character in the affidavit thereinbefore set forth, and by the assurance, contrary to the fact, that he, the plaintiff, was receiving as large an allowance for his old policies as he was equitably entitled to.
    It had then alleged that plaintiff was required, as part of the transaction, to give his note at ninety days to the affiant’s order for $167.67 ; that said note was required to be given by said Hib.bard, and was procured by him to be discounted by his brother-in-law, Charles H. Brinkerhoff, and that, as affiant believed from the aforesaid facts, the proceeds of the discount were appropriated to the use of said Hibbard, if not to both Hibbard and Nichols.
    It further alleged that plaintiff’s original policies, with the surrender thereof, having the consideration left in blank, were delivered to the company.
    It then proceeded as follows :
    “ Said note is now in my possession, as are also the four policy slips, made for said four old policies ; but neither myself nor said plaintiff, as he informs me, can now recollect the exact terms of said transaction, or change of said four policies, nor can I recollect the amount falsely filled in in this case by said Hibbard in plaintiff'’ s surrender, but he did fill the same up with a false amount; nor do I know what entries, or whether tribe or false, have been made touching such transaction in the books of said corporation, nor does the plaintiff have knowledge, as he informs me, nor have I myself the requisite knowledge of the necessary facts upon which to make and serve a complaint in this action; nor do we or either of us know of any source from which the requisite knowledge or information of all such necessary facts can be obtained, other than from an examination of the said individual defendants, and of the said comp any?'

    Then came the above extracted statement of the nature of the action, of the substance of the cause of action, of the nature of the judgment to be demanded, and of the information desired to be obtained from Hibbard and Nichols, and by an inspection of the books. The affidavit also contained allegations as to Hibbard’s extorting large sums of money from the affiant in connection with said business of changing policies.
    The affidavit of Uhl corroborated that of Emery, as to the modes and manner in which surrenders were obtained, and as to the procuring of signatures to surrenders having the considerations left blank ; and averred that he, the affiant, was instructed by Hibbard so to procure the signatures ; it also averred that Hibbard instructed him to make false representations of the nature and character set forth in Emery’s affidavit, and instructed him to make any and all representations which should be necessary to obtain said surrenders ; the affidavit further averred that there was not a single case of change with which the affiant had any connection, wherein the just and lawful rights under the surrendered policy were received by the assured. It then proceeded as follows: “As matter of business honesty, our only justification, in our own minds, as agents, was that we were assured, and I was assured by Mr. Hibbard, that the method adopted for disposing of the old policies, as set forth in said Emery's affidavit, toas absolutely necessary to save the Knickerbocker from bankruptcy.”
    The affidavit of Wells set forth that he was Emery’s assistant in procuring changes of policies, and that of his own knowledge the statements contained in said Emery’s affidavit, relating to the nature of the business done, the manner in which it was done, the instructions given by Hibbard in relation to the mode of doing the business, and the compliance with such instructions by himself, or by Emery and his other assistants, to the best of his information and belief, are true.
    The plaintiff’s petition and his affidavit was as follows :
    “I, Joseph B. Heishon, being duly sworn, do depose and say : I am the plaintiff in this action; I have heard read the annexed affidavit of James F. Emery, and know the contents thereof. Said Emery is my agent, as alleged ; and all facts and information and statements in said affidavit, alleged to have been stated, given and made by me, were so stated, given and made. It is true that I do not possess the requisite knowledge or information of facts, as therein alleged, to enable me to make my complaint in this action. It is true that I was induced, as therein alleged, to surrender my four old policies by the said E. H. Nichols, acting as agent of the said Knickerbocker Life Insurance Company, and to accept three new policies, and pay the premiums thereon, and to make, deliver, and afterwards to pay the note of $167.67, in the manner, for the purposes, and by means of the fraudulent concealment and misrepresentation of material facts, as in said affidavit alleged. All the allegations contained in said affidavit touching any acts or doings of mine, relating to the nature and the object of this action ; the nature of my cause of action herein ; the character of the judgment and relief which I shall seek herein, and the necessity for the examinations and disclosures of books and papers as therein set forth, are true. Said E. H. Nichols came from New York to Salem, N. J., then my residence, for the express purpose of obtaining my surrender of my said old policies. He labored faithfully with me during two days to obtain my consent "thereto. I was very reluctant to assent to his proposals ; I could not then understand how it could be to my interest or benefit to do so ; said Nichols represented to me that it was decidedly to my interest to do so, and the company would, and did, allow me, in the transaction, more than I was justly or equitably entitled to. I do not now recollect the precise allowance made to me, or the exact figures involved in the transaction; I was ignorant then, and until November, 1877, of the nature of the transaction, of the existence of any general scheme for purchasing, or obtaining surrenders of the policies ; also ignorant of the mathematical nature of the life insurance business, and of the value of my old policies, and of the ‘ surrender value’ thereof, and of the ‘ reserve ’ accumulated thereon, and of the financial standing and condition of the Knickerbocker, and of the real object and purpose of. its officers in obtaining said surrenders, and of all other material facts- set forth in said affidavit, and the same were falsely and fraudulently misstated and misrepresented by said E. H. Nichols to me ; but whether knowingly done on his part personally, I cannot state. I do not think that he personally knew all the wrong he was instrumental in effecting.”
    “ To the Honorable, the Superior Court of the City of Hew Torlc, and the Justices thereof:

    “Thepetition of Joseph B. Heishon, plaintiff above named* shows to your honorable court:
    “That the nature of the above entitled action, and of the cause of action herein, and of the judgment- and relief sought herein, are correctly set forth in the annexed affidavits of James F. Emery, and your petitioner ; and the necessity for the production and inspection of the books, records, and papers kept by the defendant, the Knickerbocker Life Insurance Company, is also therein correctly set forth.
    “Your petitioner further respectfully shows that it is necessary to have a production and disclosure of the following books and papers, to enable your petitioner to properly prepare and serve his complaint herein, namely :—the original policies, the numbers of which, and the names of the insured in which, are given in the foregoing ‘ Exhibit Aand the agreements or instruments of surrender, or release, of each of said policies, whereby the assured surrendered the same to said corporation; and the policy-registers, and dividend books, in which were kept the record of said policies and the dividends thereon ; also the cash-books • containing the entries made from and after February 1, 1873, of surrender values, payments, or disbursements of money, paid and made upon the surrender of said numbered policies:
    “Your petitioner therefore prays, that an order be made herein pursuant to the practice of your honorable court, directing said corporation, and John A. Nichols,- the president thereof, and George F. Stiffen, who is the secretary thereof, to deposit with the clerk of this court said books and papers, at such time, and under such directions and restrictions, as the court shall fix, in order that the same may be fully and freely inspected by your petitioner’s counsel herein, for the purposes aforesaid ; or that said company and its said officers, in such time and manner as the court shall direct, allow a full and free inspection of such books and papers by your, petitioner’s counsel, and by such assistants as he may properly employ for that purpose, for the purposes aforesaid ; and that your petitioner have such other or further relief in the premises, as to the court shall seem proper ; and your petitioner will ever pray.”
    The affidavit of Hibbard denied the allegations contained in the affidavit of Emery as to the character of his employment, as to the company’s setting on foot a scheme to procure the surrender of policies by any fraudulent concealment or misrepresentation, as to the instruction given with reference to the manner of carrying out any such scheme, as to defendant Nichols acquiring large gains and profits for himself and fellow stockholders and exercising absolute control over the business of the company, as to filling up blank surrenders with any different amount than the true one, as to the exaction of money from said Emery, as to his taking a wrongful advantage of his position or privileges connected with said company ; and set forth that he had no agency whatever in procuring the surrender of plaintiff’s policies ; that neither he nor the company required the plaintiff to give any note on such transfer; that several days after the surrender Emery brought him a note, which he believes to be the one referred to in Emery’s affidavit, and requested him procure its discount, which he did through Brinckerhoff, and the proceeds were either paid to Emery or credited to him in account for money owed by him to the affiant.
    This affidavit also denied the statements contained in Uhl’s affidavit, as to instructions given to him, and statements and assurances made to him by the affiant.
    It also set forth that the only employment of said Emery was to procure the substitution of a class of policies theretofore and for many years issued by the company, upon which the premium was paid in part by a note made by the policy-holder for the premium due on the policy, and known as a premium note, for policies upon which the premium should be paid wholly in cash ; and in connection with such employment to procure such new insurance as he might be able. It then set forth as follows :
    ‘ ‘ The business for which said Emery was employed, as aforesaid, was designed by said company to procure the general welfare of its policy-holders as a body, by removing the complication incident to the note system already mentioned, and, in point of fact, resulted in very inconsiderable profit, if any, to said company. That, in the experience of said company, said note system proved very unsatisfactory to its policy-holders ; and the interests of the company and of its policy-holders seemed to the officers of the company to demand a change. That a large majority of the life insurance companies, which have transacted business to any extent upon said note system, at or about the same time when said Knickerbocker Life Insurance Company inaugurated the change aforesaid, had adopted the change instituted by said company, to wit: By changing from the note system to the cash system, with respect to the payments of premiums upon life insurance policies. Said Emery was not instructed by said company, nor expected by it, to offer to policy-holders in the course of his employment as aforesaid, any other than a fair inducement and consideration for changing their policies from the note system to the cash system ; that said consideration and inducement consisted in some cases in returning to the policy-holder the note held by the company against the old policy, upon which the policy-holder was obliged to pay interest annually, in addition to the premium named in the old policy. Sometimes, in returning the note so held, and paying a portion of the premium on the new policy; in some, in paying several premiums on the new policy; and in some instances, in addition to returning the note and paying one or more premiums on the new policy, the payment of a cash sum to the policy-holder, as the circumstances of each individual case might warrant.”
    The judge who held the special term granted the motion as to the examination of Nichols and Hibbard, but denied it as to the inspection of the books.
    A special term order was entered in conformity with the decision.
    Both parties appealed.
    Johnson, Cantine & Deming, attorneys, and Henry W. Johnson, of counsel, for defendant, upon the questions considered by the court, urged:
    I. Assuming that the plaintiff could be entitled to such a judgment from this court as the moving papers state he will ask in his complaint, those papers contain a complete demonstration that no examination is necessary to enable him to frame his complaint as the basis for such a judgment. These averments are complete in themselves, and a motion to make them more definite and certain would not be granted. An examination of the defendants, therefore, could only be necessary to enable the plaintiff to obtain evidence in support of those averments—not to enable him to make them.
    II. The fifth point of the learned counsel is a virtual concession that Emery’s affidavit discloses all the facts necessary to enable the plaintiff to frame his complaint; but, while conceding this, the plaintiff claims an examination of the defendants, because he does not believe what Emery swears to. This is the proposition plainly deducible from the argument of the learned counsel. “Emery’s affidavit does not satisfy the conscience of the plaintiff, so far as to warrant him in swearing to a complaint, in which he must aver a belief in the information.” Thus the learned counsel puts his client in this remarkable attitude before the court—that he has selected an agent to prosecute his claim who has made oath to certain facts, but the plaintiff himself does not believe them to be true.

      W. J. Butler, attorney, and of counsel, for plaintiff, as to the questions considered by the court, urged:
    V. Defendants claim that plaintiff has shown that he needs no examination to enable him to frame his complaint. It is necessary to present a case showing the substance, if not all the .particulars of a perfect cause of action ; the order could not otherwise be granted ; but it shall not therefore be objected that no examination is. necessary because Emery’s affidavit shows the substance of a cause of action ; and, besides, Emery’s affidavit does not satisfy the conscience of the plaintiff, so far as to warrant him in swearing to a complaint, in which he must aver a belief in the information.

       Note.—It is understood that the court of appeals has reversed the order directing an examination, upon the ground that the court at special term has no power to make such an order; and that it can only be made by a judge. This point was not raised at general term. Vide Albany Law Journal, vol. 19, p. 458.

   There were other points raised by counsel, which the court deemed it unnecessary to pass on.

By the Court.—Van Vorst, J.

The proceeding before the judge at special term was a petition on the part of the plaintiff, accompanied by affidavits requiring the defendants, Nichols and Hibbard, to appear and be examined, for the purpose of enabling the plaintiff “ to make and serve his complaint,” and also for an order requiring the defendant corporation, its president and secretary, to deposit, with the clerk of this court, certain of its books and papers, containing entries during several years, in order that the same may be inspected by the plaintiff for the same purpose.

The application for the deposit and inspection of the books and papers was denied by the judge at special term, but an order was made for the appearance of the defendants to be examined. The plaintiff’s need, out of which these proceedings originated, is by himself limited. If there was no such need existing, both applications should have shared the same fate.

It is urged, by the counsel for the defendant, that the plaintiff’s affidavits show him to be in possession of all the facts necessary to prepare his complaint. In substance the same objection was urged, without avail, in Glenney v. Stedwell (64 N. Y. 120, 128).

It is true the plaintiff is in possession of facts and information, as appears by his affidavit, sufficient to indicate that he is entitled to relief of some character in a court of equity.

Subdivision 2 of section 872 of the Code of Civil Procedure calls upon the plaintiff to show, in his moving papers, the nature of the action, and the substance of the cause of action, and of the judgment demanded therein. This he has done to a marked degree.

But plaintiff claims that the defendants, Nichols and Hibbard, are in possession of facts which will enable him accurately to state his cause of action with the fullness of detail necessary to be stated in a complaint for equitable relief, where transactions of the character of those indicated in the plaintiff’s moving papers are to be investigated.

This action is unusual and peculiar as to character. The relation of the defendants to the company, and * their alleged participation in the transactions of which complaint is made, clearly enough indicate that their personal examination may be necessary to enable the plaintiff to give formal expression to the allegations which must, in the end, constitute his complaint, and upon which the ultimate relief to which he may be entitled, and the extent thereof, in so far as the complaint can disclose the same, must be based.

We would give no license to any vexatious inquiry into the affairs of these defendants in their relations with the company, not connected with a statement of the plaintiff’s cause of action, nor would we place them under any unnecessary burden, nor subject them to an examination to ascertain whether the plaintiff has a cause of action. The statute and the power of the court can be invoked for no such purpose.

A cause of action is set up, and the inquiry should be limited to such matters only as are necessary to enable the plaintiff to prepare his complaint.

As the plaintiff may be limited on the trial to the allegations of his complaint, and his relief, in substance, be restricted thereby, it is proper, it seems to us, that in order to widen the range of inquiry, and to enable the plaintiff to demand the additional relief indicated by the facts and knowledge alleged to be in the possession of these defendants, and which are essential to be stated in the complaint, and cannot be otherwise obtained, that they should submit to an examination.

The judge before whom they are to be examined will see to it, that the inquiry is confined within proper limits.

We think the order for an examination of the books was properly denied, but the order for the defendants’ examination is affirmed.

Both orders are affirmed with costs.

Speir, J., concurred.


source: Caselaw Access Project

author: By the Court.—Van Vorst, J.

license: Public Domain

text:
    ALBERT G. HYDE, Plaintiff and Appellant, v. EDWIN O. TUFFTS, Defendant and Respondent.
    Before Van Vorst and Speir, JJ.

      Decided March 3, 1879.
    Tobts.—Choses nr action, assignability of.
    A cause of action in tort, affecting the property rather than, the person of the claimant, may be bought and sold.
    In this case, plaintiff was induced by the fraudulent statements of the defendant to enter into a copartnership with him, and to contribute a large sum ag capital thereto, which sum was lost to plaintiff by defendant’s said deceit and subsequent fraudulent acts. Afterwards, and prior to the commencement of this action against defendant for deceit, plaintiff petitioned for and obtained a discharge in bankruptcy.

      Held, that upon the above facts action cannot be maintained by plaintiff; that whatever claim he may have had against defendant passed by the assignment to his creditors, as an asset.
    Appeal from an order vacating an order of arrest.
    On May 1, 1875, the plaintiff was induced, through certain representations made to him by the defendant, which were false, to enter into copartnership with him. These representations were in respect to the value of the defendant’s business, and the amount of capital and moneys he had invested therein, and as to the extent of his liabilities. The defendant had kept his books falsely, so as to exhibit such facts. The truth being that the defendant did not have the capital and money in his business he so represented, and his indebtedness was largely in excess of the amount he stated. He was in fact hopelessly insolvent. Relying upon the truth of the representation, the plaintiff' paid into the copartnership $44,250 in cash. The copartnership continued but a short time, but during its continuance the defendant kept the books falsely, so as to continue the frauds, and used, for his own personal purposes, the moneys which had been contributed by the plaintiff, and which, through the defendant’s deceit, have been lost to the plaintiff.
    The above facts, appearing by affidavits on the plaintiff’s behalf, an order for the arrest of the defendant and this action, which is brought for the recovery of the plaintiff’s damages, was made, which was subsequently set aside.
    It appeared before the judge who set aside the order of arrest, that the plaintiff was, on his own petition, in the year 1877, adjudged a bankrupt, and had been discharged by the decree of the Federal court from his debts. That in such proceedings an assignment had been executed to the assignee in bankruptcy, of all the estate and property of the plaintiff; and that the assets in the hands of the assignee were insufficient to pay the plaintiff’s creditors.
    The plaintiff appealed from the order vacating the order of arrest.

      Stickney & Shepard, attorneys, and Edward M. Shepard, of counsel, for appellants.

      Martin & Smith, attorneys, and A. Pennington Whitehead, of counsel, for respondent.
   By the Court.—Van Vorst, J.

The learned counsel for the plaintiff urges that the cause of action originated in the defendant’s deceit, and not being assignable, did not pass to the assignee in bankruptcy.

He would, in substance, place the plaintiff’s cause of action in the same category with personal torts, such as slander and assaults, which do not pass to the personal representatives of the person injured, but die with his person.

It has been held that a cause of action arising in a tort, although it affected property, was not assignable. In Gardner v. Adams (12 Wend. 297) it is said, that a cause of action for a conversion of personal property is no more assignable than one arising out of an assault upon the person. But Hall v. Robinson (2 N. Y. 295) comments upon Gardner v. Adams, and holds differently with respect to such a chose in action.

In Hoyt v. Thomson (1 Seld. 320, 347) this subject is discussed by Paige, J. He says : “All choses in action, embracing demands which are considered as matters of property or estate, are assignable, either at law or in equity. Nothing is excluded but mere personal torts, Avhich die with the party. A claim, therefore, for property fraudulently or tortiously taken or received, or wrongfully withheld, and even for an injury to either real or personal property, may be assigned.”

This case points out the true line of demarcation in general terms, between causes of action originating in torts, which may and may not be assigned.

Harris, J., in Hodgman v. Western R. R. Co. (7 How. Pr. 494), is quite clear and distinct upon this subject. “ Every right of action involving life, health or reputation,” belong to a class which cannot be assigned.

But when it affects “ the estate, rather than the person,” the right of action may be bought and sold. And he adds: “Such a right of action, upon the death, bankruptcy or insolvency of the party injured, passes to the executor, or assignee, as a part of his assets, because it affects his estate, and not his personal or relative rights.”

These authorities make the proper disposition to be made of this case reasonably clear, notwithstanding the cases cited by the learned counsel for the plaintiff, principally, however, from other States. He refers us to Sommer v. Wilt, 4 Serg. & R. 19, 28; Shoemaker v. Keely, 2 Dall. 213; O’Donnell v. Seybert, 13 Serg. & R. 54; Read v. Hatch, 19 Pick. 47; Henshaw v. Miller, 17 How. U. S. 212, as holding in substance, that in order to a survival of certain actions, arising ex delicfac, the injury must be actual and direct to property, and not indirect and incidental, and that a cause of action arising through deceit and fraud would not survive. However it may be elsewhere, the rule, in this respect, as laid down by our own courts, must prevail.

Although it is quite clear that the plaintiff was induced, through the defendant’s fraudulent statements, to become his partner, and place his money within his reach and disposal, yet it is equally clear that it was the defendant’s purpose, through the deceit, to reach the money.

The injury to the plaintiff affected his property rather than his “personal or relative rights.”

And this money, which the deceitful representations were designed to secure, the defendant, according to the plaintiff’s showing, has in fact converted and applied to his own advantage. The fraudulent representations were designed to, and did, in fact, despoil the plaintiff of his estate, to the immediate and direct pecuniary advantage of the defendant. Through the fraud the plaintiff’s money passed from himself to the defendant.

In case the plaintiff had died before going into bankruptcy, we think it clear that the claim would have passed to his personal representatives, and could have been enforced by them (2 R. S. 447, §§ 1, 2).

Doubtless, had the defendant, through fraudulent representations, obtained the plaintiff’s horse, an action for its recovery, or for damages, would have passed to his personal representatives or assigns (McKee v. Judd, 12 N. Y. 622; People v. Tioga Common Pleas, 19 Wend. 73; Hawk v. Thorn, 54 Barb. 164).

We cannot perceive that it changes the case, where the object sought to be secured by the fraud is money rather than ordinary chattels.

It is urged by the counsel for the plaintiff that Zabriskie v. Smith (13 N. Y. 322) is an authority against the assignability of the plaintiff’s causé of'action. I do not think so. In that case there was a fraudulent representation as to the solvency of a third person, who obtained the property and reaped the immediate benefit.

That wa,s also the point in Read v. Hatch, and Henshaw v. Miller (supra).

But that is not the case we have under consideration.

Here the deceit perpetrated by the defendant was to get into his possession and under his control, for his own advantage, the plaintiff’s property, and his fraud was successful. It would, ind,eed, present an anomalous case if the plaintiff, ruined by the defendant’s fraud, and having been discharged in bankruptcy, through his inability to pay his debts, should now be allowed to recover to his own use the moneys he paid into the copartnership which became insolvent, and leave his creditors helpless and without remedy.

Both law and equity are well satisfied when this chose in action, representing the plaintiff’s despoiled estate, passes to his assignee in bankruptcy, as we are of opinion it does, under the revised statutes regulating the assignment of the property and estate of the bankrupt, to be enforced for the benefit of his creditors.

The order appealed from is affirmed with costs.

Speir, J., concurred.


text:
    MARY E. SNIFFEN, Plaintiff and Respondent, v. BERNARD KOECHLING, Defendant and Appellant.
    Before Van Vorst and Speir, JJ.

      Decided March 3, 1879.
    Usury, what dobs not constitute in mortgage.—Practice as TO REQUESTS to BIND, &C., SUBMITTED AT TRIAL, UNDER SECTION 1023, Code Civ. Pro.
    The employment of an agent to,effect a loan does not impliedly or apparently authorize him to do an illegal act, and where a lender has received a security providing for the repayment of the precise amount loaned by him, with legal interest, the fact that the agent, without the authority, knowledge or participation of the lender, extorted from the borrower a bonus, does not taint the transaction with usury (Esteves v. Purdy, 66 N. Y. 446; Bell v. Day, 32 Id. 165; Condit v. Baldwin, 21 Id. 219; Elmer v. Oakley, 3 Lans. 34).
    The written statement of facts deemed established by the evidence, and the rulings of law desired thereon, which, under section 1023 of the Code of Civil Procedure, a party may submit to the judge at the trial, must, to be considered, be in the form of distinct propositions of law or of fact, or of both, separately stated; and in the same propositions should not be mingled indiscriminately statements of fact with conclusions of law. They must be prepared in such form that the court may conveniently pass upon them.
    This action was brought for the foreclosure of a mortgage.
    The answer of the defendant set up: 1st, usury; 2d, that one Anthon was agent and attorney for the plaintiff in and about the making of said loan; and that the plaintiff had, through such agent, required as a condition of making the loan to pay over to her the sum of $1,433.66, which the plaintiff was to apply to the payment of taxes and assessments on the mortgaged premises.
    The defendant further alleged that he advanced this money to said agent for such purpose, but that the plaintiff never applied the money to the payment of such taxes and assessments, and that plaintiff applied the same to her own use. For this amount the defendant demanded a recoupment.
    A reply was put in by the plaintiff in which she denied that Anthon was her agent, or that any of this $1,433 had been advanced to her, or at her request, and that she was in no wise responsible for the action or conduct of Anthon.
    Plaintiff recovered judgment of foreclosure, from which, and from the direction or order as to his requests to find, defendant appealed.
    The facts are stated in the opinion of the court.

      Theodore F. Sanxay, for appellant.

      C. A. Runkle, for respondent.
   By the Court.—Van Vorst, J.

I cannot think that the retention by Anthon of a portion of the moneys handed to him by the plaintiff’s agent on the purchase of the mortgage, or making of the loan, however we may call it, and the subsequent delivery by Anthon to the plaintiff’s agent of the-sum of $375, part and parcel thereof, as a commission for his services, he being engaged in real estate business and in the negotiation of mortgages, renders the mortgage void in the plaintiff’s hands.

That, under the facts found by the learned judge, and which findings are sustained by the evidence, would be a hard judgment, and would inflict unmerited loss upon an innocent person.

Anthon, who was an attorney and counsellor at law, on behalf of the defendant, who desired to raise a sum of money by way of mortgage on his real property, to pay off a previous mortgage thereon, applied to the plaintiff’s agent, and attorney, in fact, and whose general vocation was that of broker in real estate and mortgage negotiations, for the loan or advance of the money.

In making such application, and in settling upon the terms and conditions of the loan, Anthon was beyond doubt the representative of the defendant.

It may be that before the matter was fully and completely ended, the plaintiff’s agent, to some extent, relied upon the legal knowledge and care of Anthon, with regard to the sufficiency of the papers, and the condition of the title ; but that is not inconsistent with the fact that Anthon’s true attitude was as the defendant’s representative and agent in the substantial parts of this transaction, and by whom he was to be compensated.

The plaintiff was, in truth, represented by her own agent, her son, who, acting under a written power of attorney, was charged with the duty of investing her moneys. I cannot accept the conclusion, however, that the plaintiff, who was wholly ignorant of the private arrangement between Anthon and her agent, and who received no part of the moneys retained by Anthon under the name of commission, or for services, is at all chargeable with anything that was questionable or-irregular in Anthon’s action, although he divided the commissions or moneys retained with the plaintiff’s agent.

She was advised and believed that the whole investment had cost her $7,500, the face of the mortgage, as it in fact did, for her moneys to that extent were used and charged in her accounts, no portion of which was paid back to or received by her.

If the defendant has any just cause of complaint, it is with the person selected by him to raise the money, and to complete the business, against whom, or his personal representatives, redress must be sought. The whole amount was received by.Anthon to the defendant’s use. That Anthon afterwards paid her agent $375 cannot prejudice her, unless with her knowledge or assent.

An innocent party cannot in this manner become implicated in the vice of usury.

The employment of an agent to effect a loan does not impliedly or apparently authorize him to violate law, or do an illegal act.

And where a lender has received a security providing for the payment of the precise amount loaned by him, with lawful interest, the fact that, the agent, without the authority, knowledge, or participation of the lender, extorted from the borrower a bonus, does not taint the transaction with usury (Estrevez v. Purdy, 66 N. Y. 446; Condit v. Baldwin, 21 Id. 219; Bell v. Day, 32 Id. 165; Elmer v. Oakley, 3 Lans. 34).

The findings of fact and conclusions of law signed and filed by the learned judge before whom the action was tried at special term, cover all questions necessary to be considered in the just disposition of the action.

We see no error in the refusal of the. judge to pass upon the numerous requests presented to him by the defendant, through his attorney, for the purpose of having the same passed upon, pursuant to section 1023 of’the Code of Civil Procedure.

This section provides, that either party may submit, in writing, to the judge, a statement of the facts which he deems established by the evidence, and rulings of law, which he desires the court to make.

But the statement must be in the form of distinct propositions of law or of fact, or of both, separately stated. They must be prepared in such form that the court may conveniently pass upon them.

In the same proposition should not be mingled, indiscriminately, statements of fact with conclusions of law. Such practice leads to confusion, and makes an intelligent disposition of the subject inconvenient for the judge below, and the appellate court, upon review.

On the other hand, these statements of fact and legal propositions, if handed to the judge before‘his decision, clear, distinct, and simple in their construction, each confined within its proper limits, when passed upon by him, will aid him in reaching a just conclusion in respect to the principal controversy before him, and will also reasonably guard the rights of an aggrieved party on appeal. A close adherence to this practice must be fruitful of good results. The learned judge refused to pass upon the defendant’s requests, or any of them, for the reason that they did not comply with section 1023 of the Code of Procedure, in that the propositions material to be passed upon were so intermixed with statements of specific pieces of testimony and general statements of law, that the former could not be practically distinguished and passed upon.

We have examined these requests, and find them to be largely open to the objection urged by the judge to their consideration. Some of them, it is true, are statements of facts. But in the main the refusal was justified.

In the exceptional instances, however, no practical injustice is done. In the findings actually signed, they are actually disposed of, and the others are immaterial.

The real matters of substance, warranted by the evidence, under the issues, are found by the judge in the statement of facts and conclusions of law actually signed by him, and forming a part of the case on appeal.

We find no substantial error in the various 'rulings of the judge upon the trial, to which exception has been taken. And for the reasons assigned by him, as well as those hereinbefore stated, the judgment is affirmed with costs.

Speir, J., concurred.


text:
    J. WYMAN JONES, Plaintiff and Appellant, v. GEORGE L. KENT, Administrator, &c., of E. ROCKWELL, Deceased, et al., Defendants and Respondents.
    Before Van Vorst and Speir, JJ.

      Decided March 3, 1879.
    Sale op personal property.—Agreement to share proceeds op RESALE, ABOVE A CERTAIN SUM, WITH VENDOR.
    The following memorandum was signed by the defendant’s intestate and delivered to the plaintiff, and forms the basis of this action:
    “Received of J. W. J., by agreement, one thousand shares of St. Joe Lead Stock, for which I have paid him $3,000. The understanding is, that I am to give said J. one-half of whatever price the same is sold for, when sold, over and above that sum.”

      Meld, that the above memorandum is evidence of an absolute sale of the property therein mentioned, and that, until the holder of the said property thereunder, who has the sole and exclusive right of disposal, elects to sell the same, the vendor can have no possible claim thereon; that an action to compel the sale of the property, and a distribution of the proceeds, will not lie (Lorillard v. Silver, 36 N. Y. 379).

      Also held, that to construe the language thus employed as imparting an intention on the part of either party to have the stock and its earnings held or sold for their joint benefit would involve an interpolation of new matter at variance both with the terms and spirit of the contract.
    This case distinguished from Wright v. Wood, 57 Barb. 471.

      Appeal from judgment in favor of defendant.
    This action was tried by the court without a jury, and was brought to compel the sale and a distribution of the proceeds of two thousand shares of the capital stock of the St. Joseph Lead Company, transferred by plaintiff to defendant Kent’s intestate, in June, 1876.
    The court below held the following facts to be established by,the evidence:
    The transfer was made in two separate lots of one thousand shares each, and on each occasion the said defendant’s intestate signed and delivered to the plaintiff a written instrument in the following form:
    “ Received of J. W. Jones, by agreement, one thousand shares of St. Joe Lead Stock, for which I have paid him $3,000.
    “The understanding is, that I am to give said Jones one-half of whatever price the same is sold for, when sold, over and above that sum.
    “Dated N. Y., June [ ], 1866.
    “E. ROCKWELL.”
    Neither of such instruments differed from the other except in its date, one being dated on June 19, the other on June 29, 1866. On May 1, 1868, the defendant’s intestate, with the consent, as the complaint alleges, of the plaintiff, surrendered to the company one hundred and forty shares of such stock, and paid it $600 in cash, receiving in consideration of such surrender and payment two of its interest-bearing bonds for $1,000 each. Interest was duly paid upon such bonds until their redemption by the company, as hereinafter mentioned. At the maturity of the bonds, in August, 1871, the bondholders accorded to the company an extension of time of payment, and thereupon received, as a consideration for such extension, a dividend in stock. As the owner of two $1,000 bonds the defendant’s intestate became entitled to and received as such dividend one hundred shares of such stock. At about the time of the transfer by the plaintiff to the said defendant’s intestate, the stock sold for and was worth in the market from $2.50 to $3’ per share. It declined in value shortly afterwards, selling at a very low price, and remained continuously depressed until the spring of 1874, when the payment of dividends was commenced. The stock thereupon rallied and became worth from $2 to $3 per share. The defendant’s intestate died in February, 1874. Dividends amounting in the aggregate to $3,206 have since been declared and paid upon the stock held by him at the time of his death. In December, 1875, the two bonds for $1,000 each, above mentioned, were purchased by the company at ninety-five per cent, of their par value, and accrued interest. At the commencement of this action the stock had attained the value of and is now worth from $7 to $8 per share.
    The plaintiff claimed that he transferred the said stock to defendant’s intestate “ in trust for the 'benefit of both partiesthat it was verbally agreed between them ‘ ‘ that said two bonds should stand upon the same footing as the stock, and that plaintiff should be interested therein as in said stock.” He further claimed to be, in like manner, interested in the one hundred shares of stock issued to defendant’s intestate, as a bonus, upon the extension of time of payment of the bonds, and that siich shares were held upon the like trust. He, therefore, demanded judgment, declaring the existence of such a trust in his favor, and directing a sale of the stock, an accounting with respect to such dividends and interest, and a final distribution, according to respective rights and interests of the parties, as upon such accounting they shall be ascertained and determined.
    No evidence in support of the plaintiff’s claim to a beneficial interest in the stock, after its transfer by him, other than such as the two written instruments of May 19 and 39, 1866, may afford, was adduced at the trial.; though it was claimed that the surrounding circumstances, as above set forth, require such a construction of those instruments as will fully sustain the claim of the plaintiff in this regard; and it was urged and insisted, that under and by virtue of the instruments themselves, the plaintiff must be deemed to have retained an equitable interest in the stock, and in all profits and advantages accruing therefrom ; the relation between the two parties being that of joint adventurers in the transaction.

      Knox & Jones, attorneys, and William, Stanley, of counsel, for appellant.
    Porter, Lowrey, Soren & Stone, attorneys, and Grosvenor P. Lowrey, of counsel, for respondent.
   By the Court.—Van Vorst, J.

We are of opinion that there was an absolute sale of the stock to Rockwell, for the consideration expressed in the written memoranda, and which was paid by the vendee. That feature distinguishes this case from Wright v. Wood (57 Barb. 471). In that case there was no sale of the stock to the defendant.

This case, as was suggested by Sanfobd, J., below, falls within Lorillard v. Silver (36 N. Y. 379), and. is decided by it. We are of opinion that the sale of the stock by the defendant, the representative of the vendee, cannot, upon the facts found, be hastened by the plaintiff. The legal title to the shares, with the absolute and exclusive right to dispose of same, passed to the vendee, and is not liable to be interfered Avith by the vendor, as to the time Avhen, or the price at which, the same shall be sold.

The vendee could have sold at any time after he acquired title,' had his exigencies demanded it, although he should fail to realize even Avhat he paid for the same, without accountability to the vendor, Avho could not have been called upon to bear any portion of the loss. On the other hand, the vendee, and those who now represent him, if they concluded it was most prudent to hold the property in the expectation of a further appreciation, should not be restrained from the exercise of their judgment and discretion in that regard.

We should not, through a judicial sale, ordered against the opposition of those who own the stock, frustrate their expectation of a further advance in the value of the property.

We cannot accept the conclusion that Rockwell received or held the stock in trust, and the plaintiff, as a beneficiary, can compel its sale at such time as he may elect. Such trust relation is in direct opposition to the terms of the memoranda made at the time of the transfer, which are clear and unambiguous.

But Avhenever the holder shall elect to sell, and as to the time, he is to be the exclusive'judge, and should there be realized on the sale any sum over and above what Rockwell had for the shares, then and not until then can the plaintiff interpose any just claim, and that for his proportion of the excess.

We cannot perceive that the plaintiff, under the facts found by the j udge at special term, is entitled to any accounting with respect to the one hundred and forty shares of stock surrendered to the Lead Company, or the proceeds of the two bonds secured in exchange therefor.

In addition to the surrender of the one hundred and forty shares, to which the plaintiff assented, Rockwell paid in money §600. It is found by the judge at special term that there was no understanding or agreement that the plaintiff should be interested in the bonds, or that Rockwell should hold the bonds upon any trust.

' In no event has there been any such sum realized by the defendant as to justify any accounting, by the terms of the memoranda in writing. We find no error in the rulings of the judge at special term ; and for the reasons above expressed, as well as those quite clearly stated in the opinion of Sanford, J., at special term, the judgment appealed from should be affirmed.

Speer, J., concurred.


text:
    JOSIAH WALKER, Plaintiff and Respondent, v. JOHN C. SPENCER, Defendant and Appellant.
    DEMURRER TO COMPLAINT, IN AN EQUITY ACTION.
    1. That causes of action are improperly united therein ;
    2. That plaintiff has an adequate remedy at law ;
    3. That the complaint does not state facts sufficient to constitute a cause of action.
    This action was brought to compel the defendants to account as the general agents of the assignor of the plaintiff. The complaint, although containing many specific allegations in regard to the matters and business of said agency, in truth sets up but one cause of action, and there is no improper joinder of causes of action, arising- out of the agreement, with claims for wrongful conversion, as the demurrer suggests.
    A demurrer will not lie to the prayer for judgment in the complaint. That the plaintiff has an adequate remedy at law is no ground of demurrer.
    If the complaint sets up a cause of action, the court has jurisdiction to dispose of a controversy, whether the relief called for be legal or equitable, or both. The forum of the trial, whether before the court or a jury, will be determined when it comes on to be heard.
    Before Van Vorst and Speir, JJ.

      Decided March 3, 1879.
    In the case of agencies, such as the case under consideration, where accounts are involved, an action may be brought on the equity side of the court (Story’s Equity Jurisdiction, §§ 462, 463, &c.).
    This view of the case disposes of the objection, that the complaint does not set up facts sufficient to establish a cause of action.
    Appeal from an order overruling a demurrer to the complaint.

      Hatch & Van Allen, attorneys, and H. J. Hatch, of counsel, for defendant.

      George W. McAdam, attorney, and Daniel T. Robertson, of counsel, for plaintiff.
   By the Court.—Van Vorst, J.

The real object of this action, as disclosed by the complaint, is to bring the defendants McDonald and Spencer to an accounting, -in respect to their action as agents, under an agreement made by them with the defendant, Josiah Walker, on May 1, 1868.

By this agreement, such defendants were appointed the general agents of Walker, to sell and dispose of a certain article known as Vinegar Bitters,” which was manufactured- by Walker.

The agents, McDonald and Spencer, were by the terms of the agreement entitled to commissions for their services, out of the net profits to be realized on all sales, to the amount of fifty per cent, thereof. The agents, by force of the agreement, were bound to render accounts periodically.

The complaint, in truth, sets up but one cause of action, although it contains specific allegations with regard to the receipts of large sums of money under the agreement, and their expenditure by the agents, and their acts and omissions, as to the subject-matter. Yet such allegations do not, as is supposed by the defendant’s counsel, amount to statements of different causes of action, which cannot be joined in the same complaint, but are all related to the principal matter, and tend more clearly to show that an accounting is proper. By way of illustration, the allegations in respect to the expenditure of a considerable sum of money, by the agents, out of the profits, for advertising, without the assent of the principal, do not, as is urged, disclose a cause of action for the wrongful conversion of the agents’ money. The propriety of such expenditure will be ascertained on the accounting, when the same will be scrutinized. For all that was properly expended under the agreement, the agents will be credited ; for improper and unauthorized expenditures, they will be charged.

There is, therefore, no improper joinder of causes arising under the agreement, with claims for wrongful conversion, as the demurrer suggests.

hior does the subject-matter contained in the ninth subdivision of the complaint disclose a separate cause of action against the defendant, Joseph Walker. If it does, its joinder with those for which the other two defendants are jointly liable, would be improper (Earle v. Scott, 50 How. Pr. 506).

The propriety of the payment therein claimed to have been made will also be determined on the accounting, and as to whether or not it was made after notice of the assignment to the plaintiff. By its prayer for relief, the complaint does, indeed, ask for a judgment against the defendant Walker individually, for moneys paid to him by the other defendants after the assignment. But a demurrer will not lie to the prayer for judgment.

If, upon the trial, it shall appear upon the facts proven under the complaint that separate relief as to the defendant Joseph Walker cannot be allowed, it will doubtless be withheld. It is not an unusual thing for a plaintiff to ask, in the prayer of his complaint, relief to which he is not entitled, and which it would be improper to allow.

That the plaintiff has a remedy at law is no ground of demurrer. This court has always jurisdiction to dispose of a controversy by an effective judgment, if the complaint sets up a cause of action, whether the relief asked be legal, equitable, or both. The forum of the trial, whether before the court or a jury, will be determined when it comes on to be heard (De Bussierre v. Holladay, 4 Abb. New Cas. 111).

But in the case of agencies, such as the one under consideration, where accounts are involved, actions may. be brought on the equity side of the court for an accounting (Story Equity Jur. §§ 462, 463; Tam v. Vilmar, 54 How. Pr. 235, 238).

This disposes of the objection that the complaint does not set up facts sufficient to establish a cause of action. Salter v. Ham (31 N. Y. 321) is not opposed to this view.

The plaintiff, as the purchaser and owner of the interest and claim of the principal, and of all his rights of property under the agreement, is entitled to stand in his shoes and demand the account.

All rights and interests ex contractu are assignable (Butler v. New York & Erie R. R. Co., 22 Barb. 110; Hooker v. Eagle Bank of Rochester, 30 N. Y. 87).

We think the disposition of the demurrer made by (,he judge at special term was correct, and the order appealed from is affirmed, with costs.

Speir, J., concurred.


text:
    CHARLOTTE ANN NICOLL, et al., Executors, &c., Plaintiffs and Respondents, v. EDWARD BURKE, Defendant and Appellant.
    Before Van Vorst and Speir, JJ.

      Decided March 3, 1879.
    Landlokd and Tenant.—Agency.—Evidence.
    The plaintiffs, as executors, through their agents, leased certain premises to the defendant.
    The indenture of lease introduced in evidence, upon which the action was brought, was not under seal, and was signed by the lessee only, the defendant herein. The plaintiffs, said agents, were mentioned and described therein as landlords, with the word “Agents ” after their names. It appeared that the defendant understood that he made the engagement to lease, &c., with persons who were acting for others.—Held, that an agent can bind his principal by a farol contract entered into in his own (the agent’s) name, though the principal’s name does not appear in the instrument; and that in this case the plaintiffs were properly in court to enforce the agreement made by them, through their agent, with the defendant.

      Also held, that as the plaintiffs are shown to be the persons entitled to execute the lease and to the rent, it is to be presumed that the counterpart of the above indenture was properly executed on their behalf, it not having been introduced in evidence by the defendant, in whose possession it is presumed to be.
    This is an appeal from a judgment in favor of plaintiffs, entered upon a verdict of a jury, and also from an order denying a motion for a new trial made upon the minutes of Hon. John Sedgwick, the judge before whom the action was tried.
    The action was brought to recover three several balances of rent, in all amounting to $150, alleged to be due- for the three several quarters ending on August 1, and November 1, 1876, and on February 1, 1877 ; also, to recover $600 alleged to be due for .the quarter ending May 1, 1877, under and in pursuance of an indenture of lease alleged to have beeu made between the plaintiffs, by their agents. William and E. A. Cruikshank, and the defendant, dated March 2, 1876, for one year from May 1, 1876, at the yearly rent of $2,400.
    Also to recover damages for an alleged breach of covenant in omitting to pay $19.55, the Croton water tax, and omitting to keep the premises in good order and repair, amounting to $300.

      Kissam & Embury, attorneys, and Benjamin S. Kissam, of counsel, for appellants.

      Edmonds & Nicoll, attorneys, and Walter D. Edmonds, of counsel, for respondents.
   By the Court.—Van Vorst, J.

The defendant, on March 2, 1876, signed a writing, indorsed on the lease, under which he had held the premises several years, in these words: “The within lease is hereby renewed for the further term of one year, to commence on May 1, 1876, at the yearly rent of two thousand four hundred dollars, other covenants and conditions to remain as before.”

This is a formal and effective agreement, binding upon the defendant to take the premises for one year, at the rent mentioned, and subject to the covenants and conditions he was before under. The defendant has nob paid the full amount of the rent called for in the agreement. He claims, however, that there was a subsequent agreement by which the rent was reduced.

The verbal arrangement, claimed to have been after-wards made with De Lancy Mcoll, the plaintiff’s agent, to take a less sum, if it was proven, is wholly inoperative. Mcoll denies that he agreed to accept a less Sum, unless the rent was promptly paid, and he testifies it was not.

But whether he so agreed or not, it would not bind the principals, for the reason that it was made without authority, and was founded on no adequate consideration. But receipts were signed accepting a less sum in full as the rent fell due from time to time. The receipts were not signed by the principals, but by the agents. Under such circumstances, as no authority to accept a less sum was shown, the acts of the agents would not discharge the moneys still unpaid. But in any view, the acceptance of a smaller sum, when a greater is due, does not discharge the real indebtedness (Dederick v. Leman, 5 Johns. 333; Ryan v. Ward, 48 N. Y. 204).

The rule is, however, otherwise, where the amount of the indebtedness is in dispute, and a compromise is agreed upon (Bunge v. Koop, 48 N. Y. 228). There could be no dispute here, as the true amount of the rent was fixed by the writing of March 2, 1876.

When the lease of 1873, upon which the indorsement in 1876 was made, was offered in evidence, it was objected to by defendant’s counsel, on the ground that it was not made in the names of the. plaintiffs.

It was, however, received, and the defendants excepted.

The learned counsel for the defendant takes the point that the plaintiffs cannot maintain an action for the rest. He urges that William and E. A. Cruikshank are the landlords, as appears by the original lease, and that the word “agents,” which follows their names, is descriptive merely.

The lease in evidence is executed by the defendant only. By whom, the counterpart was executed does not appear. It may be that it was so executed as to obviate any objection of the nature of the one now considered. From the fact that it was not produced by the defendant, in whose possession it is presumed to be, it may be inferred that it was executed in a form to bind the plaintiffs. But however that may be, we have now to do with the indorsement made in March 2, 1876, signed by the defendant, which gives occasion to this action, and which in effect draws to itself the covenants and conditions of the old lease. There is evidence in the case that Cruikshank and De Lancy Mcoll, in their action, merely represented others. That seems to have been understood, and the engagement arising from the indorsement of March 2, 1876, must be construed to have been made with those legally entitled to let the premises, and to be enforced by them.

The defendant’s counsel has cited several cases to show that all contracts must be made in the name of the principal and not of the agent, and that when they are not so made, although the agent may be, the principal is not bound ; among which are Kiersted v. Orange & Alexandria R. R. Co. (69 N. Y. 343); Stone v. Wood (7 Cow. 453); Spencer v. Field (10 Wend. 88); Townsend v. Hubbard (4 Hill, 351); De Witt v. Walton (5 Seld. 571). But, as already observed, it does not appear in what manner, on the part of the lessors, the lease was executed. And as the plaintiffs are now shown to be the persons entitled to make the lease, and to the rents, we may presume it was well executed on their behalf.

But while it may be true that when an agent enters into a contract under seal in his own name, he does not bind his principal, by its terms, and the principal may be unable to enforce it in his own name, yet a principal may be charged where a written parol contract, entered into by an agent in Ms own name, witMn Ms authority, although the name of the principal does not appear in the instrument (Briggs v. Partridge, 64 N. Y. 357, 362).

The engagement for letting and hiring the premises in question for one year was not required to be in writing, and the defendant’s obligation was not under seal.

He, in fact, made the engagement with persons who, as he understood at the time, were acting for others. And we conclude that the principals, the real parties in interest, are properly in court, to enforce the defendant’s engagement, made with them through the agency of Cruikshank and Nicoll.

We discover no error in the refusal of the judge to charge as requested by the defendant’s counsel, nor to the charge as made.

The plaintiffs’ claim to allowance for any part of the repairs made by them, was rejected by the jury under the judge’s charge ; the defendant being held only for the rent in arrear, and the Croton Water tax.

The defendant was not justified in his attempt to surrender the premises by the terms of the original letting. Nor was such attempted surrender accepted by the plaintiffs. The effect of the verdict of the jury is only to impose upon the defendant the payment of rent according to Ms engagement, and nothing more, and in that we fail to see any injustice. The judgment and order denying a motion for a new trial, from which this appeal is taken, are affirmed, with costs.

Speir, J., concurred.


author: By the Court.—Speir, J.

text:
    DAVID SOLINGER, Plaintiff and Respondent, v. EDWARD EARLE, et al., Defendants and Appellants.
    Before Van Vorst and Speir, JJ.

      Decided March 3, 1879.
    Duress, what constitutes.—Composition deed.—Fraud on creditors.
    There cannot be any legal inference from the fact of family connection alone, that the interest of a person in a brother-in-law is so great as to cloud the judgment or affect the will, in deterrriining how far he will aid him.—Held, in this'case, that the refusal of defendants to sign a composition deed releasing plaintiff’s brother-in-law, except upon condition that plaintiff should give his note for a certain sum over and above that mentioned in the said deed, the note to be held till other creditors should sign the composition deed, did not amount to duress or compulsion, though defendants were aware of the affinity of plaintiff to said debtor.
    By the said deed of composition, thirty cents on the dollar were to be paid the defendants, among other creditors, in plaintiff’s notes, with the debtor’s indorsement.—Held, that the above transaction, by which defendants, without the knowledge of the other creditors, received a further note of plaintiff, was illegal, and a fraud upon the said creditors; and that all the parties thereto were equally in the wrong.
    Upon the above grounds, the court refused to interfere to aid plaintiff to recover the amount of said note paid by him.
    Appeal by the defendants from a judgment entered upon a demurrer to the complaint, in favor of the plaintiff. The facts are stated in the opinion.

      Ivins & Bergen, attorneys, and Wm. M. Ivins, of counsel, for appellants, cited:
    As to the reason of the rule that coercion, compulsion or duress will avoid a contract or relieve a party from the plea in pari delicto : Foshay v. Ferguson, 5 Hill, 174; United States v.
      Huckabee, 16 Wall. 431; Broome's Common Law, 609.
    As to the degree of compulsion which the law requires to be shown by the party seeking to avoid the natural legal consequences of his own acts, upon the plea of their involuntariness: Radick v. Hutchins, 5 Otto (95 U. S.) 210; Brown v. Pierce, 7 Wall. 205; Miller v. Miller, 68 Penn. St. 493; Foss v. Hildreth, 92 Mass. 76; Chitty on Contr. 217; Story on Contr. § 514; United States v. Huckabee, supra; Feller v. Green, 26 Mich. 70.
    As to the kind of compulsion which the court will permit a party to plead for the purposes sought by the plaintiff: Bouvier's Law Dict., “Duress,” and cases cited; Biffin v. Bignell, 7 H. & N.; Wilcox v. Howland, 23 Pick. 167; Evans v. Gale, 18 N. H. 397; Kenworthy’s Case, Dec. Joint Com. 334; Hall v. Shultz, 4 Johns. 240; Skeate v. Beale, 11 Ad. & E. 983; Glynn v. Thomas, 11 Exch. 878, 879; 39 American Jur. 26, et seq.; Cro. Jac. 187; Wayne v. Sands, 1 Freeman, 351; 1 Roll. Abr. 687; 2 Danu. Abr. 686; Bagley v. Clair, 2 Brownl. 276; Robinson v. Gould, 11 Cush. 57; McClintock v. Cummins, 3 McLean, 158, and other cases there cited; Breck v. Cole, 4 Sandf. 79.

      Abraham Kling, attorney, and of counsel, for respondent, cited:
    As to moral duress : Smith v. Bromley, 2 Douglas, 696, note, decided 1731; Harmony v. Bingham, 12 N. Y. 100; Cockshott v. Bennett, 2 Term R. 763, decided 1788; Middleton v. Onlow, 1 Peere Williams, 768; Jackson v. Mitchell, 13 Ves. 581; Smith v. Cuff, 6 Maule & Sel. 160; Knight v. Hunt, 5 Bing. 433; Atkinson v. Derby, 6 Hurl. & N. 778; Breck v. Cole, 4 Sandf. 79; Exp. Sadler, 15 Ves. 55; Horton v. Riley, 11 Mees. & W. 482; 1 Story Eq. §§ 378, 379; 14 Alb. Law Jour. 436; 15 Id. 35; Gilmour v. Thompson, 49 How. Pr. 198.
   By the Court.—Speir, J.

The firm of Newman & Bernhard, being embarrassed in business, entered into a composition agreement with their" creditors to pay .thirty cents on a dollar in full satisfaction of their indebtedness, and gave, in payment thereof, the plaintiff’s promissory notes, with the debtor’s indorsements, payable in two, four and six months. The plaintiff and defendants entered into a written agreement between themselves, unknown to the other creditors, that the plaintiff should give his promissory note for $978.79, in addition to the thirty per cent., payable to the order of the defendants, which was not to be used till all the creditors of Newman & Bern-hard had signed the composition agreement. The note was paid in the hands of third parties after suit was brought, but before judgment.

That the note was without consideration, and the agreement to give it was a fraud upon the other creditors, is conceded by both sides. It is a general rule that courts will not aid either party in enforcing an illegal executory contract, nor, if executed, will they aid either party in setting it aside, or in recovering back what has been paid under it. This results from the established elementary principle that all contracts Or agreements which have for their object anything repugnant to the general policy of the common law, or contrary to the provisions of any statute, are void and not to be enforced. The whole transaction, the agreement to give the note, and giving it to the defendants to hold until the creditors should sign the composition deed, and the payment of the money to the defendants, was illegal and void. If the act of the plaintiff was voluntary he has no case against the defendant to recover back the money paid, for he cannot avail himself of his own unlawful act. Where both parties are equally guilty, neither can excuse or justify his conduct by appealing to the law.

The allegation in the complaint is in substance that the agreement and the making and delivery of the note were unknown to, and were by the defendants fraudulently concealed from, the other creditors, and was first proposed by the defendants to plaintiff ; and the object and purpose thereof on the part of the defendants was that they should receive the note in addition to the sum mentioned and paid by the terms of the composition agreement, in fraud of other creditors and their rights. Whether the scheme which was devised and carried out between the parties was first suggested by the defendants as charged, is of no importance. The plaintiff was equally bound with the defendants to disclose the whole transaction to the other creditors. It is in all cases the concealment of the fact which was material for them to know, the knowledge of which might have prevented their own assenting to the composition agreement (Britton v. Hughs, 5 Bing. 466, Best, Ch. J.).

There is nothing in the allegation that the defendants subjected the plaintiff to any coercion which would justify an action against them either for the return of the note or the money paid on it, or for damages of any kind. There is no averment that the defendants or either of them ever made or attempted to make any threats against the plaintiff or against his brother-in-law, Newman. What they did do, as alleged, they insisted upon his making and delivering the agreement between them and the plaintiff, and the giving the promissory note, and absolutely refused to execute the composition agreement unless the plaintiff complied with their demand. This the defendants had the right to do. They could refuse to execute a discharge of the debtors absolutely, or could exact conditions, provided the other creditors had knowledge-thereof, and it is plain that the plaintiff was equally guilty in withholding that knowledge from the other creditors.

To relieve the plaintiff from the consequences of his participation in the fraudulent transaction, and to enable him to recover the money he had paid to the defendant, he sets up that his action therein was involuntary and by compulsion, and he cannot, therefore, in law, be regarded as having acted at all. He says the defendants knowingly and fraudulently took advantage of the feelings, sympathies and sensibilities he had for his brother-in law, Newman, to compel him to execute the agreement to give his note. Duress by threats cannot be claimed, since, as before shown, no threats of any kind are alleged. The defense then must rest upon the naked statement that Newman was the plaintiff’s brother-in-law, and the defendants knew it. Ho facts are stated by which the plaintiff’s will was restrained or influenced by the defendants, other than the affinity which existed between the plaintiff and Newman. The plaintiff was not related by blood to the debtor, nor was he a member of his family. By the Civil Code of Louisiana, which, in this respect, is a transcript of the French Code, the causes of nullity for duress- are 'limited, not only where they are exercised on the contracting party, but also when the wife, the husband, the descendants or ascendants of the party are the object of them (2 Civil Code of Louisiana, § 1847). Affinity means the tie which arises from the marriage between the husband and the blood relations of his wife, and between the wife and the blood relations of the husband (Vaughn, 302, 329; Biffin v. Bignell, 7 Hurl. & N. 877). I am unable to find any case either in the civil or common law where the party complaining of moral duress to avoid a contract was a relation by affinity. Even if such a case could be found, in order to sustain the complaint we must hold that the statement per se of the plaintiff’s being the brother-in-law of the debtor is a sufficient duress to avoid the contract, there being neither threats nor facts showing compulsion in the complaint.

The judgment must be reversed, and the complaint dismissed, with costs.

Van Vorst, J., concurred.


text:
    JAMES M. ORMES, Plaintiff, v. SAMUEL T. DAUCHY, et al., Defendants.
    Before Van Vorst and Speir, JJ.

      Decided March 3, 1879.
    Brokers.—Public policy.—Trial.
    A broker, who agrees merely to bring parties together for the purpose of negotiation, upon consideration of a promise of one of said parties to pay him a certain percentage upon the amount of a contract thereby expected to be made, and who takes no part in the subsequent proceedings of the parties, can recover his said commissions according to agreement, though the contract entered into, and upon which they depend, is illegal and void as against public policy, e. p., a contract for advertising a lottery scheme.
    The law does not punish a wrongful intent where nothing is done to carry that intent into effect, much less bare knowledge of such an intent, without any participation in it.
    If the defendants desired that the question whether they were to pay the commission as the money was paid to them, or not until they had been paid the full contract price of the work, be submitted to the jury, they should have requested it. The exception to the court’s directing a verdict was not equivalent to a request.
    The defendants were advertising agents. In August, 1874,' they agreed with the plaintiff and his assignor, Niles, that if they would bring to the defendants the officers of a certain Virginia corporation who desired to advertise in various parts of the country, and it should result in a contract between the defendants and the corporation, the defendants would pay the plaintiff and Niles ten per centum on the contract price of the advertising to be done.
    The plaintiff and Niles introduced the officers of the corporation to the defendants, who entered into a contract with the officers. The defendants admit that they did the work under the contract for the corporation to the amount of $13,000, but assert, that the company paid them therefor only $5,500. On the trial, the court took the defendants’ construction of the agreement with the plaintiff, viz. : that the defendants were to pay the commission only on the amount they should actually collect. This was most favorable for the defendants, and the plaintiff was content. The court accordingly directed a verdict for the plaintiff for $550, being ten per cent, of $5,500, the sum the defendants admit they actually collected.
    Exceptions to be heard in the first instance at general term, and judgment meanwhile suspended.

      Henry F. Pultzs, of counsel, for defendants, appellants.

      John E. Risley, of counsel, for plaintiff, respondent.
   By the Court.—Speir, J.

The main defense in the case was that the contract between the defendants and the Montpelier Association, a corporation created by the laws of Virginia, was .in violation of the statutes of this State, which prohibit the publication of an account of any lottery, gain or device, or the prizes therein, &c. That such a contract was entered into in writing between the corporation in Virginia and the defendants is not disputed.- What the contract was is_ not shown. Neither the plaintiff nor his assignor, Mies, ever saw it. The defendants failed to produce it on the trial, although they had notice to do so, and it appears it was in the possession of their agent in Virginia, to whom they had sent it, and they were not permitted to give evidence of its contents on the trial.

It is not claimed or pretended that the plaintiff or his assignor were parties to the contract in question, though it is asserted that the parties entered into it at their instance. In other words, it is shown that the plaintiffs acted as brokers in bringing the parties together, who thereupon executed a contract, whatever it was, and the plaintiffs claim a commission for their services in that capacity. I am unable to see why the plaintiff should not recover the commission sued for, even though the, contract made between the defendants and the Virginia company was illegal or against public policy. There is no proof that the plaintiff or Mies took any part in making the contract or in its performance after it was made. Their engagement was ended when they introduced the parties to each other, and the law allows them compensation for that particular service. The contract of the plaintiff was, in itself, therefore, lawful and free from vice, and I do not see how it can be avoided on the ground that it-possibly may have facilitated an illegal transaction. It is impossible to foresee where the doctrine would carry us should it be held that the broker’s contract is void because it may have some remote connection with other unlawful contracts. 1 am not aware of any principle which could justify this. The law does not punish a wrongful intent when nothing is done to carry that intent into effect, much less tare knowledge of such an intent without any participation in it (De Groot v. Van Duzer, 17 Wend. 170; Hodgson v. Temple, 5 Taunt. 181; Tracy v. Tallmage, 14 N. Y. 169).

The exceptions to the refusal of the court to dismiss the complaint when the plaintiff rested, and at the close of the case, are disposed of above. The exception, taken that the court should have submitted to the jury the question whether the defendants were to pay the commission as the money was paid to them, or not until they had paid the full contract price of the work, was disposed of by arrangement on the trial. Besides, the exception taken to the court’s directing a verdict was not equivalent to a request that the question be submitted to the jury, which was not done (O’Neil v. James, 43 N. Y. 84; Dows v. Rush, 28 Barb. 157).

The plaintiff is entitled to judgment on the verdict, with costs.

Van Vorst, J., concurred.