text:
    JOHN SCHREYER, Plaintiff and Appellant v. THE MAYOR, ALDERMEN, AND COMMONALTY OF THE CITY OF NEW YORK, Impleaded, &c., Defendants and Respondents.
    ASSIGNMENT OF A CLAIM OR INSTALLMENT UNDER A CONTRACT.
    When an order to pay when due, and notice of same, operates as an assignment or appropriation of the installment, so far as any such order or notice must be regarded as binding upon, or appropriating, the fund, or part of the fund, it can not by any legal construction be extended or postponed to any other or subsequent payment or installment than the one specified in the order.
    Such an order is at the most only a mere equitable assignment of a part of a future fund, and does not operate upon the same until accepted by the drawee. Judgment of the court below corrected,by adding to it the amount the plaintiff should have recovered, in accordance with 35 Swp'r Ot. S. 423, affirmed by Court of Appeals, 55 JV. T. 452.
    Before Monell, Ch. J., and Curtis, J.

      Decided January 3, 1876.
    Appeal from a judgment.

      The action was to recover upon a contract made between one Dutch and the defendants, for work and materials furnished to the defendants, the price being payable in eight installments.
    The complaint alleged that on April 4, 1873, Dutch made and delivered the following order:
    “ New York, April 4, 1873.
    “ To the Board of Public Instruction.
    “Please pay to Dannat & Brother, or order, the sum of thirteen hundred and fifty dollars, when the same shall be due me on next payment, and charge the same to the" account of my contract for Tenth Ward Public School, situated in Ludlow street, near Delancey street, and much oblige,
    “ Yours respectfully,
    $1,350.00 “ALONZO DUTCH.”
    That on the 4th or 5th April, the said Dannat & Brother presented said order for acceptance or payment to the department of the defendants upon which this order was drawn, and at the request of said department left the same with such department. That said Dutch received and was paid by the defendants the sixth installment upon said contract; and thereafter and before the next or seventh installment became due and payable, made and delivered the said order to Dannat & Brother. That notwithstanding said order and notice of it to the defendants, they, the said defendants paid the said next or seventh installment, when the same became due, to the said Dutch.
    That afterwards said Dutch, becoming unable to complete his said contract and to become entitled to the last or eighth installment thereunder, duly assigned and transferred the said contract to the plaintiff with the consent and acquiescence of all the parties thereto. That the plaintiff thereupon completed the work under said contract, and wholly earned the whole of said last or eighth installment.

      The only defense was that the defendants had the right to withhold, out of said eighth installment, a sufficient amount to pay the order to Dannat & Brother.
    It was proved on the trial that Dannat & Brother had sued the defendant upon their order to recover the seventh installment, which they alleged in their com plaint was the next payment mentioned in said order; and that the court in that action had dismissed the complaint. It was further proved, that the plaintiff, after receiving the assignment from Dutch, served a notice thereof on the Board of Education, and they attached the notice to the contract. That thereupon he went on and completed the work under the contract, and earned the whole of the last or eighth installment, amounting to three thousand dollars.
    The plaintiff also read in evidence the order of Dannat & Brother, set forth in the complaint, which was attached to the certificate, relating to the seventh payment, instead of the eighth coming from the Comptroller’s offices, with all the certificates showing the performance of the work for the seventh payment, to show that at the time the payment was made it was attached to the certificates authorizing the payment.
    The court directed the jury to find for the plaintiff, and to ascertain the amount he was entitled to receive by deducting from the entire amount of the eighth installment, being three thousand dollars, one thousand two hundred and seven dollars, the amount of Dannat’s bill, with interest from July 16, 1873, the time of the seventh payment, to August 9, 1873, the time of the filing of the assignment to plaintiff, and that upon this balance the plaintiff was entitled to interest from November 13, 1873, the date of the completion of the contract.
    The plaintiff’s counsel excepted to the direction of the court, and asked the court to direct the jury to find a verdict for the plaintiff, for three thousand dollars principal, and three hundred and ninety-seven dollars and eighty cents interest. Refused. Exception by the plaintiff.
    The jury accordingly returned a verdict for plaintiff for one thousand nine hundred and thirty-six dollars.
    The plaintiff appealed. which had been given for her husband’s business, that of an undertaker. That she had sold to them “ coffins, carriages, horses, wagons, and sundry things in the store that carried on the business of an undertaker. ” That the sale was for twenty-one thousand dollars. When the eight thousand dollars became due they wanted her to take a mortgage on the stable. She had loaned them besides two thousand dollars. She said the eight thousand dollars was the estate’s, and the two thousand dollars loaned was her husband’s property. She couldn’t tell what it came from, but it was collected in after his death. She further testified that she assigned the mortgage that her daughter might get a loan upon it to protect it against a prior mortgage. That her daughter raised money upon it and bought the property at the sale under the foreclosure of the first mortgage. She testified she had no property of her own.

      D. M. Porter for appellant.

      F. L. Stetson for respondents.
   By the Court.—Monell, Ch. J.

The defendants stand somewhat in the attitude of a stake-holder, having funds belonging to the plaintiff, or to Dannat and Brother, and not knowing to which to pay them.

The corporation could have interpleaded between those parties and had it determined, probably, without expense to itself, which of them was entitled to be paid. The same thing, except the saving of expense, can be determined in this action ; so far only, however, as the plaintiff’s rights are concerned. Dannat and Brother not being a party hereto, will not be concluded by the judgment.

The equities of the case are strongly ih the plaintiff's favor. He took an assignment of the contract, after Dutch had shown his inability to complete the work; went on and finished it—the corporation reaping all the benefit—and earned the whole of the last or eighth installment, amounting to three thousand dollars.

The case turns, however, upon the effect to be given to the order of April 4th, which was a direction to pay Dannat & Brothers, thirteen hundred and fifty .dollars, “when the same shall become due me on next payment.”

When the order was drawn and delivered to the defendants, the seventh installment or payment on the contract, had not been earned, nor was it due or payable. And it is claimed by the appellant that the order operated as an assignment or appropriation of that installment, when it had been earned, and had become due and payable. And that after notice of the order to the defendants, the payment by them to Dutch of such seventh installment, was in their own wrong. Therefore, inasmuch as the order was an assignment or appropriation of the seventh installment, it should have been paid out of that installment, and was not a lien upon, nor had it a right to be paid out of, the eighth installment.

The respondents, however, insist that the order had reference to the time of payment, and not to any particu1 ar fund out of which it was to be paid. That it was payable when the next or seventh installment became due, but not absolutely or necessarily out of that payment.

But I do not think this latter construction can prevail.

It is conceded that at the date and notice to the defendants of the order, the “next ” or seventh payment had not been earned, nor was it due under the contract. Then when it became due the order also, according to the respondents position, immediately became due, and if then paid, it must necessarily have been paid out of such seventh payment.

If, however, it was entitled to be paid out of any other payment that might thereafter become due, then the payment to Dutch was not unauthorized.

That the contractor made his order payable ‘ when ’ ’ the next payment became due, is conclusive that he intended it should be paid out of such payment, and the drawees of the order must have intended to demand payment out of the installment which next fell due after its date. And such is the construction they put upon their order in their unsuccessful suit with the corporation.

Upon this branch of the case, I am of the opinion that so far as the order was available for any purpose, it must be regarded as binding or appropriating the fund, or a part of the fund, which was to be represented in the seventh installment thereafter to fall due under the contract, and can not by any fair Qr legal construction be extended or postponed to any other or subsequent payment. Such was clearly the intention of all the parties; and if the corporation has through accident or mistake, or otherwise, unintentionally disposed of the seventh payment, to the prejudice of the holders of the order, it must suffer the loss, if it be a loss, and not seek to impose it upon the plaintiff.

If my views of the effect which should be given to the order are correct, the plaintiff should have been allowed to recover the whole of the last or eighth payment due upon the contract.

But another reason is perhaps more conclusive.

The order in favor of Dannat & Brother was not in the nature of an inland bill of exchange. At most it was a mere equitable assignment of a part of a future fund. If the fund had been in existence, then, perhaps, the assignment would have operated from the time of notice. But even that is doubtful.

In Gribson v. Cook (20 Pick. 15), a person entitled to quarterly payments drew upon his trustee to pay a creditor, “ as the drawer’s income should become due.” The trustee refused to accept, and it was held that the order was not an assignment.

In Mandeville v. Welsh (5 Wheat. 626) it was held, that an order for part of a fund does not amount to an assignment.

And in Cowperthwaite v. Sheffield (1 Sandf. 416) the action was upon clear bills of exchange, and it was shown that they were drawn upon shipments of cotton. The court says, “ where an order is drawn, either on a general or a particular fund, for a part of the fund only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consent to the appropriation, by an acceptance of the draft. Had the bills been in the form of orders, they did not embrace the entire amount, and could not have amounted to an assignment, or give a lien, unless accepted."

Numberless cases to the same effect might be cited, and they all establish the general doctrine that even an equitable assignment does not operate upon the fund, or create any lien, until accepted by the drawee.

It is not claimed by Dannat and Brother that their order was accepted by the defendants. At most, as it is alleged, notice of the order was given .and received by the defendants.

That was not enough to create any lien upon the fund, or fix any liability upon the defendants, under the Dannat order.

In either aspect of the case therefore, the eighth payment upon the contract is due to the plaintiff. If the order was an appropriation of the seventh payment, it could not and can not rightfully be paid out of the eighth payment; if it was intended to operate upon any of the payments; for the reasons stated, it failed to become a lien, or create any liability against the defendants, because of its non-acceptance by them.

Another reason why, under all the circumstances, the plaintiff is entitled to receive the whole of the eighth installment, is, that when he took upon himself, as the assignee of the contract, the expense and labor of finishing the work under it, he was accepted by the defendants as the contractor, and the work he has bestowed and money expended has inured to the extent of three thousand dollars, to the benefit of the city. So that, whatever success the defendants may have in defending against the Dannat order, they should not, in conscience, be allowed to interpose any such possible liability, between themselves and so jus a creditor as it is conceded the plaintiff is.

In Canaday v. Stiger (35 Sup’r Ct. R. 423, affirmed Ct. of App., 55 N. Y. R. 452) we corrected the judgment by adding to it the amount the plaintiff ought to have recovered. As there is sufficient data before us, we shall do the same in this case.

The plaintiff should have judgment for the additional sum of one thousand four hundred and sixty-one dollars and eighty cents, as of the date of the present judgment, and the judgment should be amended accordingly, together with the costs of the appeal.

Curtis, J., concurred.


source: Caselaw Access Project

author: By the Court.—Monell, Ch. J.

license: Public Domain

text:
    ISAAC L. MILLER, Receiver &c., Plaintiff and Respondent, v. AMANDA M. HALL, Defendant and Appellant.
    CONVEYANCE OF PROPERTY IN FRAUD OF CREDITORS.
    Panties to action.
    In an action to recover property alleged to have been conveyed by a party with intent to delay and defraud her creditors, the party who conveyed the same is a necessary party defendant in the action, as well as the person claiming to own the same under and by virtue of such conveyance. The cases adjudged before and since the adoption of the Code fully reviewed in the opinion of the court.
    The case of Fox v. Moyer, 54 N. Y. 135, reviewed in regard to its bearings upon this and other like cases.
    Tn an action in the nature of a creditor’s bill to reach a chose in action, which could not be reached at law, especially where the interest to be reached is a chattel interest, the judgment debtor is a necessary party to said action.

      Before Monell, Ch. J., and Curtis, J.

      Decided January 3, 1876.
    Appeal from a judgment.
    The action was to reach the proceeds of a mortgage on real property.
    The complaint alleged the recovery of a judgment against one Amanda M. Senior, the mother of the defendant; the issuing and return of an execution unsatisfied ; and the appointment of the plaintiff as receiver of the judgment debtor.
    It is then alleged that prior to the recovery of the judgment the said Amanda M. Senior owned and possessed a certain bond and a mortgage for ten thousand dollars on real estate in New York, which, without consideration, she had assigned and transferred to Amanda M. Hall, her daughter, the defendant in this action. That said Amanda M. Senior was largely indebted at the time of the transfer, to an extent she was unable to pay, and that by said transfer she had hindered and delayed the collection of her debts.
    The relief demanded was an accounting by the defendant for said mortgage ; payment of its value ; and that the judgment of the plaintiff be adjudged an equitable lien upoñ the real estate acquired by the defendant under said mortgage.
    The answer denied the ownership of the mortgage by Amanda M. Senior in her own right, and alleged that one Edward H. Senior, by his will, had appointed her executrix thereof, and that the mortgage was received by her, as such executrix, in part payment for assets sold and money loaned of said estate; and that individually she never had any interest in the mortgage. She alleged the foreclosure of a prior mortgage, a sale under it, and a purchase by the defendant, and claimed thereunder a title discharged of the incumbrance of the assigned mortgage. The answer also alleged a defect of parties defendant, and that Amanda M. Senior was a proper and necessary party.
    The action was tried without a jury.
    It was objected at the opening of the trial that Amanda M. Senior was a necessary party, and a motion on- that ground was made to dismiss the complaint. The objection was overruled and the motion denied. The defendant excepted.
    The plaintiff put in evidence the bond and mortgage mentioned in' the complaint. It was executed by Alfred H. Senior, Edward M. Senior, and Charles A. Senior, of the first part, and Amanda M. Senior of the second part, dated August 3, 1870, to secure the payment of ten thousand dollars.
    The bond and mortgage purported to be to Mrs. Senior personally, and not to her as executrix.
    The defendant gave in evidence the will of Edward H. Senior, which contains the following provision: “ I will, bequeath and devise all my worldly estate of whatever kind or nature, real, personal, and mixed, unto my dearly beloved wife, Amanda Mel vina Senior, for and during her natural life; ” and after her death the said estate to be equally divided between his children.
    A further provision was as folldws: “And it is my will that my business shall continue to be conducted as it is now conducted, so long as my dear wife shall elect to have it so conducted.”
    The will appointed his wife executrix, and gave her power to sell any and all of the real or personal estate.
    Mrs. Senior qualified as executrix. She was examined as a witness, and testified that the mortgagors in the mortgage to her were her sons, and the mort-' gage was upon a stable which they had built. That at the time the mortgage was given, her sons owed her eight thousand dollars in notes, then held by her,

      Upon her cross-examination she said she could not specify any debts due to her husband ; that she had received the income of the whole of her husband’s estate.
    The court found the following facts: That the mortgage was owned by Amanda M. Senior, and was assigned by her to the defendant without consideration.
    That the premises covered by the mortgage had been sold under a prior mortgage to the defendant, and the surplus arising from the sale distributed to the second mortgage. That the defendant had assigned the said second mortgage to one Hathaway, to prevent its merging in the fee, should she purchase the property at the foreclosure sale of the first mortgage, and als<3 to secure to Hathaway the payment of such sums as he should advance to enable her to purchase at such sale.
    As a conclusion of law, it was adjudged that the assignment of the mortgage to the defendant was void as to the creditors of said Amanda M. Senior. That the defendant should account for the amount realized by her therefrom. That the plaintiff should recover of the defendant the amount of his judgment.
    The defendant excepted to the several findings of fact and law, and requested the judge to find that the mortgage belonged to the estate of Edward H. Senior. That Amanda M. Senior had no personal interest in it except as executrix. That the eight thousand dollars of notes and the two thousand dollars loaned, which formed the consideration of the mortgage, was the property of the estate of Edward H. Senior. That the defendant held the mortgage in trust for the said estate; and that the proceeds thereof were also so held.
    The judge refused each and all of such requests and the defendant excepted. ,
    Judgment in accordance with the decision was entered, and the defendant appealed.

      T. H. Barousky for appellant, I. T. Williams of counsel.

      W. W. Badger for respondent.
   By the Court.—Monell, Ch. J.

An examination of the question involved in the motion to dismiss the complaint, has satisfied me that Mrs. Senior is a necessary and proper party to the action.

The object of the action is to reach the proceeds of the assigned mortgage in the hands of the defendant, and is in the nature of a creditors’ bill to compel a discovery of property belonging to the judgment debtor or held in trust for her.

Under the law as it existed before the Code, in an action of this kind, the judgment debtor was a necessary party (2 R. S. 178, § 88 ; Edmeston v. Lyde, 1 Paige, 637; Boyd v. Hoyt, 5 Id. 65; Fellows v. Fellows, 4 Cow. 682; Green v. Hicks, 1 Barb. Ch. R. 309 ; 2 Bari. Ch. Pr. 155).

Since, and under the Code, there is not a complete uniformity of decision on the subject. But the conceded assimilation of the system of practice and pleading under the Code, to the system which prevailed in the late court of chancery, has necessarily, and very properly, given to the decisions of that court great weight in the construction of the present system.

The plaintiff must now, with one or two exceptions, be the real party in interest, and the defendant, such person as has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved.

Ho change in the law has been made, as to who are necessary or proper parties defendant; and the law on that subject as it existed in the court of chancery, has in several cases been fully recognized and applied to the forms of actions under the Code.

In Wallace v. Eaton (5 How. Pr. 99) the action was by a judgment creditor to reach property fraudulently assigned to a creditor, and also to avoid a general assignment. The assignor was not a party, and the defendants demurred. The court, after a full examination, sustained the demurrer, but intimated the opinion that had the action sought no other relief than to have the individual transfer declared fraudulent, it might have been granted, without the necessity of bringing in the assignor.

In Shaver v. Brainard (29 Bari. 25), the action was by a receiver to set aside as fraudulent a conveyance of real estate, and to apply the proceeds upon the plaintiff’s judgment. The grantor and judgment-debtor was not made a party to the action; and the judgment was reversed on that ground.

In Yanderpoel v. Van Valkenburgh (6 N. Y. R. 190), judgment creditors sought to reach certain equitable interests of their debtor, in a bond and mortgage executed to the defendant, under the will of the debtor’s mother, and which will was claimed to be void, and the court held that the debtor was a necessary party.

The case • of Lawrence v. Bank of the Republic (35 JY. Y. R. 320) is directly in point. The plaintiff, as the assignee of Lanes, Boice & Co., had deposited the trust funds in the defendant’s bank. The bank refused to pay over the funds, claiming that they were judgment creditors of Lanes, Boice & Co., and that the assignment to the plaintiff was fraudulent and void as to the assignor’s creditors. In an action to recover the deposit, the bank setup its claim to apply it to their judgment on the ground stated. After disposing of other questions, the court say: “I am also of the opinion that the proper parties are not before the court to litigate the question. In a creditor’s suit against a judgment debtor, to set aside a prior assignment made by him in trust for the benefit of creditors, on the ground of fraud, he is a necessary party. Indeed, he must be deemed the principal party. . . . The common point of litigation is the alleged fraudulent transfer of the property.”

In Beardsley Scythe Co. v. Foster (36 N. Y. R. 561), one Osborn made a bill of sale of his property to the defendant, which the plaintiffs, judgment creditors of Osborn, sought to have declared fraudulent and void as to his creditors. The court, per Bocees, J. (p. 556), say: “And again, as an action to reach property fraudulently disposed of by Osborn, he was a necessary party, in the absence of all excuse for the omission,” citing Lawrence v. Bank of the Republic, supra.

The decisions to which I have referred are sufficient to dispose of the question, if they are not disturbed by the recent case of Fox v. Meyer, in the commission of appeals (54 N. Y. R. 125). That was an action to remove a fraudulent conveyance of real estate, as a cloud on the title, and was brought against the grantee only. The objection of a defect of parties was not taken by demurrer or answer, nor was it raised at the trial. It was stated for the first time in the appellate court, and might have been wholly disposed of there— as it was in effect—under section 148 of the Code, and without any examination of the question.

If, therefore, it shall be found that Pox v. Meyer is an opposing authority to Lawrence v. Bank of the Republic, and Beardsley Scythe Co. v. Foster, it may, upon the point under review, and should be, considered as obiter. But Commissioner Earl says, in the opinion, that the grantor was not a necessary party; that the plaintiff claimed that his judgment was a lien upon the real estate which had been fraudulently conveyed to the defendant; that he commenced the action to have the cloud resting upon the lien of his judgment removed, and his judgment satisfied out of the land, notwithstanding the conveyance. And the learned Commissioner says, the conveyance being good, as between the parties, no one had any interest to defend the suit but the defendant, and he was, therefore, the only proper party defendant. But that action was not a creditor’s bill (as the court admitted), the object of which is to reach choses in action, and equitable assets of the judgment debtor, which can not be reached by execution. In such an action, the Commissioner says, the judgment debtor is a necessary party. But that was an action to have a conveyance declared fraudulent and void as to the plaintiff’s judgment, in which action it had sometimes been held, he says, that the lien of the judgment alone gave the plaintiff his standing in a court of equity. The learned commissioner does not refer to the cases of Lawrence v. Bank of the Republic, and Beardsley Scythe Co. v. Foster (supra), probably for the reason that these actions related to personal property, and were in the nature of creditor’s bills.

The action in the case before us is a creditor’s bill to reach a chose in action, which could not be reached at law. The bond and mortgage were personal assets, and the nature of the property has not been changed by a foreclosure sale of the mortgaged premises. The interest to be reached remains a chattel interest, and is the subject of a creditor’s bill, to which, under all the cases, the judgment debtor is a necessary party.

Here the objection was taken by answer and at the trial, and the court ought to have ordered the debtor to be brought in as a party defendant.

There are reasons disclosed by the evidence in this case why Mrs. Senior ought to have the right of being heard. She claims that the mortgage was the property of her husband’s estate, was taken by her for its benefit, and assigned in the same interest. And the defendant asserts that she purchased and now holds the mortgaged lands in trust.

It is not enough that the assignor of the bond and , mortgage was allowed to testify, and that the facts have been found against her evidence. Hot being a party, she must submit, without the power or right of appeal.

I do not suppose there is any collusion between the parties to the action, but the suggestion illustrates the propriety of giving Mrs. Senior an opportunity to protect, under the forms of law, the estate of which she claims to be the legal representative, against her individual creditors.

The view we have taken of this question renders it unnecessary to examine any of the other questions in the case.

To enable the plaintiff to bring the judgment debtor into the action as a party defendant, the judgment appealed from must be reversed, and with costs to the appellant to abide the event; and a new trial must be granted, before which is had, the judgment debtor may be brought in, on such terms as may be just.

Curtis, J., concurred.


text:
    AARON HERZBERG AND ANOTHER, Plaintiffs and Respondents, v. HENRY MURRAY, DEFENDANT AND APPELLANT.
    VERDICT oe a jury.
    Amendment oe, Effect of irregularity of same, when not AMENDED.
    In the case at bar, the action was to recover from defendant, upon an agreement to pay to the plaintiffs one half of all losses sustained by them in consequence of the bad debts arising from any and all sales made by or through one Bannon, a salesman; and a schedule or list of the debts claimed by them to be bad, were attached to the complaint. The jury found a sealed written verdict for plaintiffs for eight hundred and thirty-seven dollars and added, the judgment and debts mentioned in the schedule, vis., sixteen hundred and seventy-four dollars, to be assigned to the defendant for his benefit.

    held
    That such a verdict was void. It was not such a verdict as could properly have been found under the issues submitted to the jury. They could only find for the plaintiffs, assessing the damages, or generally for the defendant.
    The award of the bad debts, which formed the subject matter of the action, was not within the province of the jury.
    The jury should have been required to correct it. The court could not do it for them.
    Upon the reception of a sealed verdict which is imperfect in substance or form, the court may cause the jury to retire and correct it. After it is received and recorded it can not be altered.
    If the alteration, however, is merely as to the form of the verdict, and not affecting its substance, it would not be cause for setting it aside (Sayre v. Jewett, 12 Wend. 135; Burhans v. Tibbitts, 7 How. Pr. B. 21.)
    In the case at bar, the court held that this verdict could not be amended or altered by the court, by striking out the portion relating to the assignment of the bad debts, as thereby it would no longer be the verdict returned. Such an amendment was one affecting its substance, and could not be made by the court.
    Before Mokell, Cli. J., and Curtis, J.

      Decided Jan. 3, 1876.
    Appeal from an order denying a motion to vacate the judgment and to grant a new trial.
    The action was against the defendant as surety upon an agreement between the plaintiffs and one Bannon, wherein the plaintiffs agreed to employ said Ban-non as salesman, and the defendant agreed that he would pay to the plaintiffs all losses by them sustained in consequence of the non-payment to them of all moneys collected by said Bannon ; and also one half of any and all losses sustained by the plaintiffs in consequence of the bad debts arising from any and all sales made by or through said Bannon.
    The complaint alleged the collection of money by Bannon, which he failed to pay to the plaintiffs; and also losses sustained by them in bad debts arising from sales made by Bannon.
    Annexed and referred to in the complaint was a schedule of the bad debts claimed as losses by the plaintiffs, upon sales made by Bannon, consisting of thirty-two debts, aggregating and amounting to one thousand six hundred and seventy-three dollars and three cents.
    At the trial, the court left it for the jury to determine what amount Bannon had collected, and failed to pay over, and also the amount of bad debts he had made upon sales of the plaintiffs’ property. And instructed the jury that for the amount of moneys collected and not paid over, and the one half of the bad debts the plaintiffs were entitled to recover.
    The jury were directed to sign and seal their verdict, and deliver it to the court on the day succeeding the trial.
    The following is the written verdict of the jury, handed to the court, and signed by all the jurors, they having separated after the agreement: “ The jury
    say that they find a verdict for plaintiffs for eight hundred and thirty-seven dollars; the judgment and debts mentioned in the schedule, viz., sixteen hundred and seventy four dollars, to be assigned to the defendant for his benefit.”
    The amount found for the plaintiffs is just one-half of the bad debts mentioned in the schedule annexed to the complaint.
    Upon the rendition of the verdict, the defendant moved to set aside the verdict, for irregularity. At the same time the plaintiffs moved to amend the verdict. The court held the motions under advisement, and finally denied the motion to set aside the verdict, and granted the motion to amend, and accordingly directed the clerk to amend the verdict by striking out the words “the judgment and debts mentioned in the schedule, viz., sixteen hundred and seventy four dollars, to be assigned to the defendant for his benefit.”
    Judgment for the amount found for the plaintiffs, and the taxed costs, was afterwards entered.
    The defendant moved at Special Term to be relieved from the judgment, and to vacate and set it aside, and for a new trial. The motion was founded upon a case made and settled containing the foregoing facts, and also upon affidavits of all the jurors, that after they retired there was a great difference of opinion among them in respect to the case, and that they would not have agreed, if the condition that the alleged bad debts should be assigned to the defendant, as stated in the verdict, had not been a part thereof.
    The defendant’s motion was denied, and he appealed from the order.

      N. J. Waterbury for appellant.

      Mr. Yeaman for respondent.
   By the Court.—Monell, Ch. J.

The objection of the respondent’s counsel, that the questions involved in the case are not before the court in a form entitling them to be considered, is not free from difficulty.

A motion for a new trial was made upon, as it is alleged, the judge’s minutes. That is one of the prescribed forms for obtaining a review of the trial. It can be made upon exceptions, or for insufficient evidence, or for excessive damages. An appeal from an order denying the motion puts the general term in possession of the case.

We have lately held (Gregg v. Howe, 37 Sup'r. Ct. 420; McMicken v. Lawrence, 39 Id. 540), that an exception to a denial of a motion for a new trial is unavailable in the general term.

The motion for a new trial upon the minutes of the court, is in lieu of a motion at the special term, and an appeal from the order may be taken directly to the general term.

A party can not do both. If he moves upon the judge’s minutes, he can not afterwards move at the special term upon a case.

If, therefore, it had appeared in this case that the motion at the trial was made upon the judges minutes, we should be compelled, I think, to dismiss the appeal, on the ground, that the motion at special term, could not afterwards properly be made.

But I do not find in the case any statement that the motion at the trial was made upon the judge’s minutes. The order entered upon the motion recites it as “ defendant’s motion to set aside the verdict as irregular, and-the plaintiff’s motion to amend the verdict” being heard, &c., and it does not state upon what the motions were founded; probably it was u.pon the verdict in the form in which it was rendered.

When the motion was made at special term, then it appeared for the first time, and only in the affidavits used'on that motion, that the defendant’s application at the trial was made upon the judge’s minutes.

But as the mode of presenting the question to the general termis defective, at most, only in form, I think, in view of the importance of those questions, any such defect should be overlooked.

The verdict as rendered by the jury was not such a verdict as could properly have been found under the issues submitted to the jury. They could only find for the plaintiff assessing the damages, or generally for the defendant. The award of the bad debts, which formed the subject of the action to the defendant, was . not within the province of the jury.

Upon receiving a sealed verdict which is imperfect in form or substance, the court may cause the jury to retire and correct it. But, it seems, if the verdict is received and recorded, it can not be afterwards altered (3 Gra. on new trial, 1405). If the alteration is merely of the form of the verdict, not affecting its substance, it would not be cause for setting the verdict aside (Sayre v. Jewett, 12 Wend. 135 ; Burhans v. Tibbits, 7 How. Pr. R. 31).

In the case before us the verdict was received and recorded. It was afterwards amended by striking out a part of it. If that could be done, it must be on the ground that the part stricken out was wholly immaterial, and did not affect the verdict as a whole.

But the jury seem to have attempted to make an equitable disposition of the case. They appear to have thought that as the defendant was to be held liable for the bad debts, he was entitled to have them assigned to him for what they were worth. There was not, however, any such relief demanded by the defendant, and the award of the debts to him was unauthorized, and, in my judgment, rendered the whole verdict void.

Under these circumstances, it was the duty of the court to have refused, to receive the verdict, and sent the jury back with instructions to find an unconditional verdict.

The verdict as rendered was not such a verdict as the court could, under the pleadings and issues, render a judgment upon; and hence, when it was altered to conform to such issues, it no longer was the verdict which the jury had returned.

And it was too late, after it had been recorded, to make the alteration, as has already been said. And see Warner v. New York Central R. R. Co., 52 N. Y. 437.

I have not regarded the affidavits of the jurors, read upon the motion below. Such affidavits can not, as a general rule, be received to affect their verdict, and are not necessary in this case. It is enough, however, that the verdict they returned was void. They should have been required to correct it, the court could not do it for them.

The order should be reversed, the judgment should be set aside, and a new trial granted, with costs to the appellant to abide the event.

Curtis, J., concurred.


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    GUSTAVUS ISAACS, Plaintiff and Appellant v. THE NEW YORK PLASTER WORKS, Defendant and Respondent.
    APPEAL.
    Objections not taken at the trial, which might have been lessened or destroyed by evidence, can not be taken for the first time on the hearing of the appeal.
    CONTRACT FOR DELIVERY DURING THE SEASON.
    In the case at bar, the defendants were to deliver during all the season, which gave them until the first of January to complete the delivery. »
    As a necessary preliminary to this action, the plaintiff should at the close of the season have made his demand for the delivery, and should have proved defendant’s refusal to deliver on the trial (Newton v. Wales, 8 Debt. 458).
    Proof of readiness to receive and ability to pay is essential where the time and place of the delivery has not been fixed by the contract and where the place is to be designated by the party who is to receive the same.
    Before Monell, Ch. J., and Curtis, J.

      Decided January 3, 1876.
    Appeal from a judgment.
    The action was to recover damages for the nondelivery of a quantity of plaster stone.
    The complaint alleged a contract for the sale by the defendant, and purchase by the plaintiff, of three thousand tons of plaster stone, part of which was delivered and paid for, and a part was refused delivery.
    There was a general denial by defendant.
    The contract was by parol, and was proved by the following evidence, The plaintiff testified as follows : I know the defendant. In June, 1872,1 met Mr. Bonneville, who represented himself as an officer of the New York Plaster Works, and had conversations with him in regard to the purchase of a quantity of plaster stone from their quarries in Nova Scotia. Mr. Bonneville told me the company had a quantity of plaster stone for sale, and that his company was mining a quantity of stone in Nova Scotia, and would have some for sale, and asked me if I wanted to purchase any. I told him yes, I was ready to purchase stone. We talked over the quantity and quality of this stone. He asked how much stone I would take that season ; I told him I was ready to contract for about three thousand tons. He said he was ready to contract to supply that amount from the mines of the company in Nova Scotia, and mentioned the quarries from which the stone would come as the Hunter Quarry and the Burgess Quarry. He stated that the stone would be superior to any thing that had been yet brought from Nova Scotia; that they had the best quarries down there. I told him if he would furnish me with three thousand tons of stone that was equal to that I was in the habit of receiving, I would be perfectly satisfied; that the stone I was in the habit of receiving was known as Wentworth Creek stone ;—if he would furnish me stone equal to the Wentworth Creek stone, I was perfectly satisfied with it.
    After stating the price agreed upon, the witness proceeded. He spoke of chartering vessels down therf at the quarries, or chartering them here in New York On the arrival of the stone they were to notify me, and I was to let them know whether the cargo should be delivered at the dock in Williamsburg, or the dock in New York. A cargo of stone arrived in the “ Addie M. Bird,” about September 1st, and I received the bill of lading for four hundred and thirty tons. The stone proving not to be such as I contracted for, I declined receiving it, on account of its being inferior stone. I afterwards took at a reduced price. Towards the end of October, a cargo came by the “ Souvenir,” and I received the bill of lading for three hundred tons, which I received and paid for. At the time of paying for the last cargo, I was told that the defendant had chartered a vessel which would bring another cargo, and they would bring on stone as fast as they could ; that they had chartered a vessel named “Kedron,” and would let me know as soon as they heard of a shipment and arrival of the stone, and I was to let them know where to deliver it. The “ Kedron” arrived with a cargo of stone in December. I went to the defendants’ office and gave direction where to deliver the cargo, and told them to deliver it at once according to the contract, at the foot of Bethune Street, where I was re;ady to discharge and pay for the cargo immediately on its being discharged. They never delivered the stone from the “ Kedron.” Two or three days afterwards I saw of the arrival of the “Billy Simpson” with four hundred and forty tons of plaster, and I went to the defendants, and demanded the cargo under the contract, and to send it to the foot of Bethune Street. I never received it. Upon his cross-examination he said, the defendants agreed to ship the plaster as fast as they could get vessels at a reasonable rate. They were to ship it just as soon as they could get a vessel, and it was to be delivered in all that season. The season ran generally up to about the first of January ; sometimes up to the middle of January, until navigation is closed in Nova Scotia.
    No subsequent demand was proved, nor was there any evidence of the ability of the plaintiff to pay.
    At the close of the plaintiff’s evidence, the court stated that the plaintiff could not recover in any aspect of the case, on the contract as alleged in the pleading, and upon the testimony given. That no demand and tender after the close of the season was alleged or proved; that plaintiff, after the close of the season, should have demanded of the defendants the delivery of the remainder of the three thousand tons, and tendered to, or offered to pay the balance due under the contract, and further, that plaintiff had not shown any right to these particular cargoes of the “ Kedron” and “Billy Simpson,” for the non-delivery of which plaintiff had sued.
    The plaintiff’s counsel asked to go to the jury upon the question of the making of the contract, the arrival of the stone consigned to the defendant, deliverable under that contract, and the demand upon the defendants ill season after the arrival. Upon the question as to whether there was a demand upon the defendant to deliver the stone arriving by the “Kedron” and “Billy Simpson,” whether, at the time those vessels arrived, the stone aboard belonged to the defendants, whether those cargoes were the subject of contract by any other person at the time of their arrival or before, and whether the defendants, themselves took and appropriated to their use as distinguished from a delivery under any other contract, the two cargoes of stone by the “Kedron” and “Billy Simpson.”
    The request was denied, and the plaintiff excepted.
    The plaintiff offered to prove, that between the date of the agreement and the first day of January, 1873, no notice of the arrival of any other cargoes than those described by the witness, was given by the defendants to the plaintiff, and no opportunity was offered by them to receive any other stone during the balance of the season.
    The court ordered the complaint to be dismissed ; the plaintiff excepted, and appealed from the judgment.

      G. A. Seixas for appellant.
    F. E Dana for respondent.
   By the Court.—Monell, Ch. J.

Several of the objections urged by the respondent’s counsel, upon the argument of the appeal, do not appear to have been taken at the trial, and as their force might have been lessened or destroyed by evidence, they can not now for the first time be raised.

These objections relate to the validity of the contracts, one of which, that the contract is void under the Statute of Frauds, I will notice.

The contract was for three thousand tons of plaster, not in bulk, or in a single cargo, but to be delivered in all the season running from the date of the contract, to the first or middle of the subsequent January. The contract was therefore divisible, and not only capable of a separate delivery, but a separate delivery was contemplated and intended by both parties.

A portion of the stone, three hundred tons, by the “Souvenir,” was delivered, “accepted and received under the contract, which brings it within the exception in the statute (Flanagan v. Demarest, 3 Robt. 173 ; Caulkins v. Hellman, 48 N. Y. 449 ; Talmage v. White, 35 Sup'r. Ct. 220).

The ground upon which the complaint was dismissed, was, that no sufficient demand and tender of performance by the plaintiff was shown, and the learned judge held, that such a demand and refusal should have been made at or after the close of the season. In that we think he was right. The vendors, the defendants, under the contract, were to deliver the stone in all the season, which gave them until the first or middle of January to complete the delivery.

The plaintiff seems to have regarded the contract as giving him an absolute right to the cargoes, per the “Kedron” and “Billy Simpson,” and has rested his claim to recover upon the defendants’ neglect or refusal to make delivery of those cargoes. But there is nothing in the contract upon which any such claim can be predicated. The promise to ship the stone as- fast as the defendants could procure vessels, and that they had chartered the “ Kedron,” and would.inform the plaintiff of her arrival, did not in fact or effect transfer the cargo of that vessel to the plaintiff, nor give him the right to demand its delivery under the contract. It did not impair or lessen the time of performance, and the refusal or neglect to deliver those cargoes did not operate as a rescission of the contract by the defendant. They had still the right to go on, and from time to time, by any vessels or other vessels, make delivery down to the close of the season. And a tender from any of such other vessels, if made within the time limited for the delivery, would have been a sufficient compliance with the contract on the defendants’ part; and a refusal to accept such tender would have put the plaintiff in default.

Besides, if the refusal to deliver such cargo could work a rescission by the defendants, it at most would have subjected the defendants to damages for injuriously delaying the delivery. But it did not lay the foundation for damages for a non-delivery of the remaining quantity. The right to deliver during the season continued, and the defendants could not be put in default until the end of it; and then, as a necessary preliminary to his action, the plaintiff should have made his demand, and shown the defendants’ refusal (Newton v. Wales, 3 Robt. 453).

Another ground for the nonsuit, was that the plaintiff had not shown that he was ready and willing to receive and pay on delivery.

Such a readiness to receive, and ability to pay, might, and under some contracts will remove the necessity for a demand. That is especially so when the time and place of delivery is fixed by the contract (Mount v. Lyon, 49 N. Y. 552). But the rule can not apply where the contract requires the delivery to be at a place to be designated by tlie vendee. Certainly not until the place has been designated.

In respect to the cargo by the “ Kedron,” the place for its delivery was designated, the plaintiff testifying that he would be at the place ready to discharge and pay for the cargo immediately on its being discharged. He did not, however, testify to any refusal, only to a neglect to deliver, and he did not say that he was afterwards at the place, ready and willing to receive and pay for the cargo.

But even if the plaintiff had brought himself within the rule, it would have applied only to the cargo of the “ Kedron,” and, if otherwise entitled to recover for the non-delivery of that cargo, it would still have left his cause of action incomplete for the remainder of the contract, and proof of readiness to receive and ability to pay as to such residue would have been essential.

It seems to be now well settled, that in an executory contract for the sale, and a future delivery of personal property, where the time and place of delivery are fixed, or are capable of being fixed, the vendee, to put the seller in default, must be ready and willing at the time and place, to receive and pay (Mount v. Lyon, supra, and cases there cited). As the court say in that case, it is not necessary that he should keep on hand during the whole time of the contract a sum of money sufficient to pay for the whole quantity. “It is sufficient that he had the means at his command which would have enabled him to pay.”

It is, therefore clear, even in respect to any right of action for the non-delivery of the “ Kedron’s” cargo, that the plaintiff failed to show the necessary facts to bring his case within the rule.

He did not show that he was at the designated place of delivery with the means to pay for the cargo.

Upon both grounds, therefore, the decision was correct.

The judgment should be affirmed.

Curtis, J., concurred.


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    ELIZABETH A. FURMAN, Plaintiff and Respondent, v. GEORGE G. TITUS, Defendant and Appellant.
    fraudulent representations.
    To maintain an action for fraud and deceit, based upon fraudulent representations, the representations must not only be false, but the party making them must believe, or have reason to believe, them false; and such representations must influence the other party to the contract.
    A representation of the value of property, although untrue, will not authorize a recovery, where the vendee has an opportunity to examine the property and judge of its value. Such a representation is the expression of "an opinion, the. correctness of which the vendee is supposed to be as competent to judge of as the party making the same, and an action for a deceit in mistating the value can not be maintained (Ellis v. Andrews, 56 N. 7. 83).
    Before Monell, Ch. J., and Curtis, J.
    Appeal from a judgment.

      Decided January 3, 1876.
    The action was to recover damages for a false representation.
    The defendant contracted to sell to the plaintiff a certain lease of premises in this city, and as it was alleged in the complaint, with intent to deceive and defraud the plaintiff, fraudulently and falsely representing to her: 1 st. That the said lease was a valuable one. 2nd. That it was worth eight thousand dollars bonus. 3rd. That the fixtures, repairs, &c., placed by him therein were worth four thousand dollars to the lessee. 4th. That there were no expenses whatever to be made or paid by the lessee, except the rent and cleaning, and that there were no deductions from the rent agreed to be paid by each tenant. 5th. That the sub-tenants were prompt to pay, and responsible. 6th. The rent agreed to be paid by the tenant in several instances. 7th. That the premises were in perfect repair. 8th. That the profit thereon to the lessee had been, and would continue to be, from nine hundred to one thousand dollars per year. 9th„ That he owed nothing on said lease.
    That relying upon such representations, and believing them to be true, the plaintiff conveyed certain other property to the defendant as a consideration for said lease, and received an assignment thereof.
    That the representations were and each of them was false and was so known to be by the defendant.
    The action was tried by a jury.
    The court, in submitting the case, charged the jury as follows: After disposing of the first and second representation, with saying that th,ey did not constitute a fraud, unless made under circumstances which were calculated to mislead the party, he said : “3rd. That the fixtures placed there by him were worth four thousand dollars to the lessee. ISTow, as to that, he had no business, if that is found not to be true, to make that statement, if he put those fixtures there, and they did not cost that much, and very much less. Defendant’s statement here was, he paid two thousand five hundred dollars for the cost. He represented the value at four thousand dollars, and if he knew the cost, and represented the value to be nearly one-half more, that is false. The next representation is, that there were no expenses whatever to be met or paid by the lessee except the rent and cleaning, and that there were no deductions from the rents agreed to be paid by each tenant. I have to say to you, if that is not so, it is a false representation. These tenants were there, they were paying money, and if he chose to make a representation, he is bound by what he says; if it turned out that these tenants were not paying the amounts named, why, being false, it is a fraudulent representation. That the sub-tenants were prompt to pay, and responsible. As to that, of itself, it is not a fraud. A man may make one statement in regard to that, and another may make another. How responsible, or how prompt, is a question for business men to determine. The sixth representation is, that the rent paid by the tenants accrued instanter—that is accrued whenever the time expired that it should be paid. That the premises were in perfect repair. Now, as to the repair of these premises, if this plaintiff went there and looked at these premises herself (and it is very evident she did, because she admits that she did), it can not be said to be a fraud, because every man is bound to use his eyes, and exercise his judgment, and to judge of such matters himself. That is, always on the supposition, however, that there is nothing done to mislead him. That the profits to the lessee had been, and would continue to be, from nine hundred to one thousand dollars a year. Well, now, as to that, if there were no such profits, then when he made that statement it was a false representation. Ninth, that he owed nothing on said lease. That is not involved in the action.”
    The court then generally charged, that the real point was, whether the defendant had made a false statement in the matter relating to the value of the lease, its terms, and the condition of the building.
    The defendant’s counsel requested the court to charge: That to maintain an action for fraud and deceit based upon fraudulent representations, the representations must not only be false, but the party making them must believe, or have reason to believe, them false, and such representations must influence the other party to the contract. Which was refused, the court saying he had so charged substantially.
    The defendant excepted to the charge, and refused.
    t
    The verdict was general for the plaintiff.
    The defendants appealed.

      F. G. Salmon for appellant.

      D. C. Calvin for respondent.
   By the Court.—Monell, Ch. J.

I am of the opinion that so much of the charge of the learned judge as held that a representation of the value of the fixtures and repairs placed upon the leasehold premises, would, if found to be untrue, authorize a recovery, was erroneous.

Such a representation is the mere expression of an opinion, the correctness of which the vendee is supposed to be as competent to judge of, as the party making it. When the purchaser has the opportunity, as she had in this case, to personally examine and judge for herself, an action for a deceit in mis-stating the value, can not be maintained (Ellis v. Andrews, 56 N. Y. 83).

There were other parts of the charge which related to representations, which, if untrue, were such as an action could be maintained on them, and they were to some extent separated from those which did not fall within the rule. But the part especially excepted to, was presented to the jury in such a manner, as to leave them at liberty to find their verdict upon it alone. They were told, in effect, that if the defendant untruly represented the value of the fixtures, he had no right to do so; that if he put the fixtures there, and they did not cost that much, and very much less, he had no right to make the statement. He represented the value at four thousand dollars, and if he knew the cost, and represented the value to be nearly one-half more, that is false. “Again,” he said, “a false, deliberate statement of any fact or facts, made with knowledge and intent to deceive, and material to the-snbject, is a false representation.” And he concluded that part of the charge by saying, “ Whenever the defendant has represented anything in relation to the value of this property which was false upon its face, and which he knew to be false, and which the party inquiring of him had not the means of ascertaining, that is clearly a fraudulent representation, and he must be responsible for it.”

There was nothing in the subsequent portions of the charge, which corrected the error in respect to the representation of value, and the jury, if they found that representation untrue, were authorized to give the plaintiff a verdict.

It is not enough that there were other representations sufficient in substance, and sustained as to their falsity by the evidence, and upon which the jury have found favorably to the plaintiff. The verdict is general, and it is not possible to say which of the representations was found by the jury. It is as proper to presume the one as the other, and it may have been the one erroneously given to the jury by the court, as being sufficient in substance to sustain the action,

I am also of the opinion that the request to charge was correct. It contained an important element of a fraudulent representation, namely, that the other party was influenced by it (Taylor v. Guest, 58 N. Y. 262).

The request was refused, not that it was not a correct proposition of law, bnt under the belief that the court had so already charged. But I am unable to find anywhere in the charge the statement that to constitute a representation fraudulent, it must have influenced the party to whom it was made. The charge is wholly silent on that subject, and for that reason the defendant had a right to have the jury instructed in the language of the request.

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

Curtis, J., concurred.


text:
    IGNACIO F. ALFARO, Plaintiff, v. STRATFORD P. DAVIDSON, Defendant.
    APPEAL TO THE COURT OF APPEALS.

      Motion for order under ch. 322, Laws of 1874.

      Held, that the questions involved in the judgment in this action are not such as require the court to certify the case to the court of appeals. None of them bring the case within the rule laid down in Butterfield v. Radde (38 Sup'r. Ct. 44).
    Upon the appeal from the order denying a motion for a new trial upon the minutes, the order was affirmed by this court without examination of the alleged errors, because the grounds of the motion below did not appear in the order or elsewhere in accordance with Alfaro v. Davidson (39 Sup'r. Ct. 463).

      Held, that there being a doubt of the correctness of this last decision, the motion, so far as relates to the order affirming the order denying the motion for a new trial, is granted.
    Before Monell, Ch. J., and Curtis, J.

      Decided January 3, 1876.

      Motion under chapter 322 of the Laws of 1874, for leave to appeal to the court of appeals.
    The grounds of the motion appear in the opinion.

      S. F. Cowdrey for the motion.

      F. R. Coudert opposed.
   By the Court.—Monell, Ch. J.

This action was tried by a jury, and a verdict rendered for the plaintiff.

Upon the rendition of the verdict, the defendant moved the court “upon his notes of the trial, to set aside the verdict, and for a new trial,” which motion was denied.

An entry was afterwards made in the clerk’s minutes as follows: “Motion for a new trial upon the judge’s minutes denied.”

Treating this as an order, the defendant appealed to the general term, and procured a stay upon the verdict until the appeal should be heard and decided.

The court, upon the appeal, affirmed the order, whereupon judgment upon the verdict was entered; the defendant appealed therefrom to the general term, where the judgment was affirmed.

The judgment not being for more than five hundred dollars, the defendant, to enable him to appeal from both judgment and order, ask us, under chapter 322 of the Laws of 1874, to state in an order “that there is involved some questions of law which ought to be reviewed in the court of appeals.”

The questions disposed of by the court, upon the appeal from th& judgment, are not such as to require this court to certify the case to the court of'appeals. JS"one of them bring the case within the rule laid down by us in Butterfield v. Radde (38 Sup’r. Ct. 44). The motion, therefore, so far as it relates to the judgment, is denied.

Upon the appeal from the order, the court decided, that where the grounds of the motion below did not appear in the order or elsewhere, the appellate court would affirm the order, without examining the alleged errors of the trial (39 Sup’r. Ct. 463).

There is, possibly, sufficient doubt of the correctness of that decision to authorize us to certify that it ought to be reviewed in the court of appeals. So much of the motion, therefore, as relates to the order affirming the order, denying the motion for a new trial, is granted.

Curtis, J., concurred.


author: By the Court.—Curtis, J.

text:
    JONAS FISCHER, Plaintiff and Respondent, v. THE HOPE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Defendant and Appellant.
    I. RE-INSURANCE.
    1. Liability of RE-issT¡3n?e oomfahy to holders of policies OF THE RE-INSURED COMPANY.

      a. Liable for the amount of premiums paid to the re-insured company, and interest thereon.

    1. Where by the contract, the re-insuring company agrees to re-insure all the outstanding policies of the re-insured company, and to pay to the holders thereof, all such sums as the re-insured company might by force of such policies become liable to pay; and the re-insured company agrees to assign all premiums due, and to become due on its policies, and the good-will of its business, to the re-insuring company ; and the re-insured company thereupon ceases to transact business; a policy holder who has paid all the premiums on his policy which fell d/ue before and at the date of the transaction may, without payment of the premiums thereafter falling due, recover from the re-insuring company the amounts paid by him for premiums, with interest thereon, although he is not a party to the contract of re-insurance.
    1. Disaffirmance by policy holder oe the contract created BY THE POLICY, WHAT IS NOT.
    1. The bringing of an action against the re-insured company for the premiums paid and interest thereon, and prosecuting the same to judgment is not,

    H. RES ADJUDICATA.
    1. Dismissal of complaint on the merits in an action brought by a judgment creditor against the judgment debtor and a third party, in the nature of a creditor’s bill to reach the judgment debtor’s assets in the hands of the third party, is not res adjudicata to a claim against such third person, in favor of the party who obtained the judgment, arising out of an agreement between the third party and the judgment debtor, whereby as between themselves the third party answered and agreed to pay the claim upon which the judgment was recovered.
    Before Monelu, Oh. J., and Curtis, J.

      Decided January 3, 1876.
    Appeal by the defendants from a judgment in plaintiff’ s favor entered upon the report of a referee.
    The plaintiff, on August 28, 1869, insured his life in the Craftsman’s Life Assurance Company of New York, for one thousand dollars, taking a ten years’ endowment policy, and paid thereon twelve quarterly premiums of twenty-seven dollars and sixty cents each, including that of May 25, 1872, amounting in all to three hundred and thirty-one dollars and twenty cents.
    The Craftsman’s Company refused to accept the quarterly premium falling due in August, 1872. The plaintiff then ascertained that on May 25, 1872, the Craftsman’s Company entered into an agreement with the defendants by which the latter for a valuable consideration agreed to re-in sure the former on all risks of that company for which policies were then outstanding, and to assure all such policies, and to pay to the holders thereof all such sums as the said Craftsman’s Company might by force of such policies become liable to pay, including dividends declared for the year 1872, on premiums not yet due, and also to accept from all holders of policies a surrender of the same, and thereupon to issue to such holders its own policies of like class and like amounts.
    The Craftsman’s Company, from the date of said agreement, ceased to issue policies or to receive premiums, and each company proceeded to carry into effect such agreement
    The value of the policies existing on May 25, 1872, of the Craftsman’s company was fixed. The value of the plaintiff’s policy that day was fixed at two hundred and forty-nine dollars and fifty cents between the two companies, including the cost of re-insurance ; and the Craftsman’s Company placed in the defendant’s possession assets of the value of one hundred and fifty-five thousand dollars, and from which the defendants realized afterwards more than one hundred and thirty-five thousand dollars.
    The plaintiff commenced an action against the Craftsman’s Company, in the court of common pleas, to recover the damages he had suffered by reason of its not fulfilling the agreement contained in the policy of insurance, and recovered a judgment against the company on April 29,1873, for the sum of five hundred and eighteen dollars and seven cents, and caused execution to be issued to collect the same, which was afterwards returned wholly unsatisfied, and the same remains unpaid.
    In October, 1873, the plaintiff brought an action against both the companies to reach the property of the Craftsman’s Company, and for other relief, which resulted in a dismissal of his complaint upon the merits, and judgment in favor of the defendants.
    The plaintiff then commenced the present suit, claiming that the defendants were liable by reason of their contract with the Craftsman’s Company. The defendants by answer, insisted, that no such liability arose from the contract, and that in the action last above referred to, the same subject-matter was involved as in this action, and that they recovered judgment therein.
    The referee found that the plaintiff was entitled to the amount paid for premiums, with interest.

      Samuel A. Noyes, attorney, and of counsel for appellant, urged :
    I. The plaintiffs’ action in bringing his suit against the Craftsmen’s Life Assurance Company, is clearly in disaffirmance of his policy or contract of insurance with that company. On the other hand, if the plaintiff had brought an action in affirmance of his policy, its validity, and his rights thereunder, the action would have been for the issue to him of a paid-up policy for as many tenths of one thousand dollars as he had paid years’ premium s ; or in default thereof, for the then cash value of such a paid-up policy, under the following clause in his policy: “And the said company do hereby further promise and agree, that if, after premiums upon this policy for not less than two complete years of assurance, have been duly received by this company, this policy should cease in consequence of default in payment of a subsequent premium, this company will, on due surrender of this policy and of the profits thereon, issue in lieu thereof, provided such surrender be made within three months of the date of such default, another policy, payable as herein provided, on which no further premium shall be required, for as many tenth parts of the original amount hereby assured as there shall have been complete annual premiums paid.”
    II. The defendants, The Hope Mutual Life Insurance Company, is in no way obligated or bound to the general creditors of the Craftsmen’s Life Assurance Company, but only to policy holders, under a state of facts which bring them strictly under the agreement. The plaintiff, at best, is nothing more than a general creditor of the Craftsmen’s Life Assurance Company.
    III. The assertion of the plaintiffs counsel, that one of the clauses of the defendants’ agreement of May 25, 1872, was intended for those policy holders who would not accept the re-insurance, provided for them in the defendants’ company in place of the Craftsmen’s Company, is without foundation, and is incorrect. Our answer to this assumption is two-fold: First.—The plaintiff is in no situation to take advantage of this position (the correctness of which we deny), for he has repudiated any relation of a policy holder to the Craftsmen’s Company. Second.—All that the plaintiff could get from the Craftsmen’s Company, in case he declined to continue to pay his premiums, was a paid-up policy for as many tenths of one thousand dollars as he had paid annual premiums, provided he surrendered his policy, and made a demand therefor within three months from such default. As the fact is, he made no such demand, and his policy lapsed, became void, and of no effect. The defendants received so much money from the Craftsmen’s Life Assurance Company for the re-insurance of its risks (if the policy holders chose to accept the provision thus made for them), and for assuming its liabilities to policy holders, which arose by force of any agreement, covenant, or promise contained in said policy. Such is the full extent of the defendants’ agreement, which can not be extended beyond its legitimate construction to suit the plaintiff’s fancied claim in this action. Provided the Craftsmen’s Life Assurance Company refused to carry out their part of the contract, all that the plaintiff could recover from the Craftsmen’s Life Assurance Company, in any event, had he brought his action for damages, would be the net reserve value of his policy', or what it would cost to place him in statu quo in another responsible life insurance company. This the plaintiff does not claim, nor can such a claim be considered in this action.
    IY. The fact that the defendants received a gross sum for the re-insurance of the Craftsmen’s Life Assurance Company’s policies, places it under no obligation to assume or pay such a claim as the plaintiff makes in this action. The question is not what the defendants have received, but what they have promised agreed to do.
    Y. A gross sum was received by the defendants from the Craftsmen’s Company for the re-insurance of its policies, and for assuming the risk of all the policy holders of said company, demanding such substitution of their policies. Even conceding (which we deny) that such consideration is an apportionable one, it can not be said that the defendants have received the sum at which plaintiff’s policy was rated in the schedule without giving any consideration therefor. The defendant in relation to the Craftsmen’s policy holders, has assumed the risk of their calling for its policies.
    VI. The former action between these parties in this court is res adjudícala. Although it was an equity action, the plaintiff could there claim and prove (if he was able) the same relief that he claims here. It matters not whether an action is legal or equitable, a party is entitled to such relief as the facts proved, or such as he might prove, warrant—be that relief legal or equitable (Armitage v. Pulver, 37 N. Y. 494).

      D. S. Riddle, attorney, and of counsel for respondent, urged :
    I. The agreement of May 35, 1873, went into operation on that day ; is good and valid ; and policy holders may enforce it (Glen et al v. Hope Mutual life Ins. Co., 56 N. Y. 379). The only question that can arise is, whether the plaintiff comes within any of its terms.
    II. Every life policy has a value even in the lifetime of the assured (Ainsworth v. Backus, supreme court, general term, November, 1875, and reported in Register of November 15, 1875; also, Hawkins v. Coutherst, 5 Best & Smith, p. 343). And by turning over to the defendant its assets—especially its securities on deposit with the insurance department at Albany, and which the law requires - to be made as a prerequisite to carry on the insurance business (see Statute part 1, ch. 18, title 18, article 3, § 68; 3 R. S. 5th Ed.), the Craftsman’s Company disabled itself from carrying out its contract of insurance, and, by actually going out of business, and refusing to carry its policies any longer, it committed a breach of contract with its policy holders, and became liable to pay the damage of such breach, and the measure of such damages would naturally be the sum of premiums paid, with the interest, thereon. These liabilities of the Craftsman’s Company the Hope Company agreed to pay by the above provision.
    III. Plaintiff, by his action in the common pleas, did not disaffirm his policy. If that action had gone on the hypothesis of a disaffirmance of the contract of insurance, then the plaintiff could only have recovered from the Craftsman’s Company, as money had and received, so much of his premiums as had not then been consumed by carrying the risk on his life—to wit, two hundred and forty-nine dollars and fifty cents, the value of his policy—for the contract being at an end by mutual consent, only that amount would have been in the hands of the company belonging to him.
    IY. Even if the action in the common pleas had been a disaffirmance of the contract, the recovery in that court would be a liability against the Craftsmen’s Company arising by force of plaintiff’s policy ; for the policy would be the basis of the action.
    Y. It is plain that the agreement in question merely substitutes the Hope Company in the place of the Craftsman’s Company, and obliges the former to do what the latter should have done, and as the latter, on breach of contract, was bound to pay the plaintiff his damages, assessed by the common pleas, the former as the substitute, is also bound to pay them
   By the Court.—Curtis, J.

The liability of the defendants depends upon the effect of the agreement entered into by the defendants with the Craftsmen’s Company, in reference to reinsuring, and assuming outstanding risks and liabilities. In the case of Cflen against the defendants (56 N. Y. 379) this same agreement came before the court of appeals for construction. Their decision clearly established the right of a policy holder of the Craftsmen’s Company to recover for any liability the defendants assumed as to such policy holder, though he was not a party to such agreement.

The Craftsmen’s Company violated its agreement with the plaintiff by transferring its assets to the defendants, and by incapacitating itself to continue its business, and refusing to fulfill its contract of insurance. If the defendants assumed any liability of that company to the plaintiff, such assumption was not prejudiced by the fruitless efforts and suits of the plaintiff to get back the premiums he had paid, and for which it does not appear that he ever received any valuable consideration from the derelict company. If the plaintiff chose primarily to exhaust any remedy he might have by a judgment and execution against the Craftsmen’s Company, and by another suit in the nature of a creditor’s bill to reach its assets, and to which the defendants were a party, it may have added to his losses, but it does not show that he has waived his ultimate recourse against the defendants, if he has any, or that his claim has been passed upon already adversely, and is now res adjudicata.

The question to be here passed upon is narrowed to the inquiry whether the agreement of the defendants with the Craftsmen’s Company is broad enough to embrace the plaintiff’s demand. It is clear that the plaintiff is now remediless as one of that class of policy holders to whom, upon the surrender of their policies in the latter company, the defendants agreed to issue new policies of their own. If the plaintiff can now recover at all, it is under that provision of the agreement, where the defendants agree to pay the policyholders all such sums as the Craftsmen’s Company might by force of such policies become liable "to pay.

The words “by force” as used in that context, are synonymous with the words “by reason of” or “in consequence of.” Such was apparently the intention of the parties, and viewed in the light of the attending acts and circumstances, should justly be presumed to have been so used. The evidence in the case confirms this view of the meaning of the words.

The plaintiff’s claim upon the Craftsmen’s Company was purely in consequence of this policy; it arose from the obligations, express and implied, of that, and did not accrue to him as a general creditor, and his seeking to recover from them the premiums he bad paid when they violated their agreement to keep him insured, was not a disaffirmance of the policy. The violation of its terms in this respect, formed, as the referee properly found, one of the very liabilities referred to and embraced in the agreement, and which the defendants by its terms assumed.

The judgment appealed from should be affirmed with costs.

Monell, Ch. J., concurred.