author: By the Court.—Sanford, J.

text:
    MADISON AVENUE BAPTIST CHURCH, Plaintiff and Respondent, v. BAPTIST CHURCH IN OLIVER STREET, Defendant and Appellant.
    SUPPLEMENTAL ACCOUNTING UNDER DECREE.
    In the case at bar, the decree directed the surrender of certain premises to the plaintiff, upon the payment by him of a sum found due defendant, as of May 31, 1875, under an accounting embraced in said decree ; which decree also contained a provision, permitting the plaintiff to apply to the court upon the foot thereof, for an account of the rents and profits from said May 31, 1875, to the date of the surrender of said premises, but the said decree contained no express provision for the recovery of the amount which should appear due upon the said accounting. The plaintiff having paid the said sum due the defendant, and the said premises having been surrendered to him as directed,—

      Decided January 7, 1878.

      Held, this only operated to satisfy the judgment, piv tanto. It did not cut off plaintiff’s right to rents and profits after May 81, 1875 ; nor did it deprive the court of jurisdiction to enforce payment of the amount thereof, when ascertained in the manner prescribed in the decree.
    The omission of an express provision for the enforcement of the recovery of said amount is of no effect. The equitable powers of the court are not so circumscribed, as that a mere omission to declare thgm in advance, shall preclude their exercise in a case distinctly provided for -by a decree.
    The principles of the supplemental accounting having been settled by the previous orders and judgment of the court, and the general term having affirmed said principles, they must be deemed conclusively settled for the purposes of this case, so long as the judgment at general term remains unreversed.
    Before Sanford and Freedman, JJ.
    By the judgment rendered at special term, August 3, 1875, the defendant was directed to surrender to the plaintiff the possession of the premises described in the complaint, upon payment to it, within one month, of the sum of $4,507.16, which had been found and reported to be due and owing by plaintiff. to defendant, as of May 31, 1875, less the sum of $1,010, being half of the disbursements paid by plaintiff for referee’s fees. The judgment further directed that upon such payment the plaintiff recover such possession and have execution therefor.
    . It was further provided that the plaintiff should be •at liberty to apply to the court, on the foot of such judgment, for an account of the rents and profits of the premises from May 31, 1875, to the time of delivery of the pos>-'-t<sion thereof ; but the judgment contained no express •■'vision for the recovery by either party of the amount, which, upon such accounting, should appear to be due from the other.
    The judgment was affirmed at general term, November 6, 1876.
    Pending an appeal by defendant to the court of appeals, no stay of proceedings having been obtained, the plaintiff, on November 13,1876, paid the amount specified in the judgment, and took possession of the premises.
    On March 22, 1877, pursuant to the reservation contained in the judgment, a reference was ordered to take the supplemental account of the rents and profits, from May 31, 1875, when the account embraced in the judgment ended, down to November 13, 1876, when possession of the premises was surrendered. Upon such supplemental accounting, the sum of $9,681.90 was found and reported to be due to the plaintiff, and the referee’s report, after a hearing of exceptions thereto, was duly confirmed, by order entered at special term, July 27, 1877. On the same day, an order was made and entered reciting the judgment and the reservation to the plaintiff therein contained, of liberty to have such supplemental account taken, the subsequent proceedings pursuant thereto, including the confirmation of the referee’s report thereon, and directing the payment by defendant of the amount ‘therein reported, with costs of the reference.
    The case is now before the court upon the appeal of the defendant from each of such orders.

      William JR. Martin, for appellants, urged :
    —I. The judgment contains no provision for the recovery by the plaintiffs against the defendants of this account.
    II. The voluntary payment by the plaintiffs to the defendants of the amount adjudged due, - as of May 31, 1875, with full knowledge of all the facts, is a liquidation, and a bar to any further recovery (Stenton v.
      Jerome, 54 N. Y. 485). On such payment, they enforced the execution of their judgment, and have exhausted their rights under it. They recovered in ejectment, with mesne profits, to be set off against the claim of the defendants for moneys advanced, and for which they had an equitable lien. At a period when, on the account as fixed in the judgment, the plaintiffs owed defendants $3,810, they paid it, and took possession on execution. This is their own voluntary liquidation of the account, and enforcement of the judgment. In the absence of any provision for recovery of the amount that might be found due on the subsequent accounting, they can have no relief in respect thereto.
    III. The defendants are entitled to have the expenses of conducting public worship allowed against the pew rents charged to them. At general term, November, 1876, Curtis and Van Vorst, JJ., the grounds stated in affirming the judgment, were : That there was a defect of proof. That the expenses of conducting public worship might be chargeable against other sources of income than the pew rents. That it was not proved that these expenses of conducting public worship were necessary, and formed the consideration for which the pew rents were paid. These fact's now appear in evidence. In the former report, the income of the defendants collected from other sources did appear; and it now appears, that for fifteen years, prior to 1877, the collections and aids towards the expenses of maintaining public worship, have been usually paid over to the defendant’s society or corporation ; and that the expenses of maintaining public worship have been defrayed by these collections and contributions, as well as by pew rentals, before, and also after May, 1875, i. e., during the whole period covered by the accounting. It further appears, that, during the whole period, the defendants had no other sources of income than these pew rents, and these special collections, and that these special collections, of whatever kind, were only resorted to, to make up the deficiency of income from pew rents. It also appears that the pews, from which the rents were derived, were in the main audience room of the church; that this room was opened solely for public worship on Sunday, mornings and evenings ; that it was locked up from the pew-holders, and that they did not have access to the pews at other times. That the exclusive use of the pews, during public worship, was the only use the pew-holders had of their pews for their rents, and that this was the consideration given by the church to these pew-holders for the payment of their rents. That preaching and music was supplied on all occasions of public worship, and that without them, and without light and heat, and the services of the sexton, the pews could °not have been rented. And that this was in accordance with the usage of Baptist churches in New York city. In the management of the church in all these aspects, there was no change after May 31, 1875. They were the same as before, and the same as they had been in the plaintiffs’ church before the union. Upon these facts the defendants rely in support of their argument, that the expenses of maintaining public worship should be deducted from the pew-rents, in the account against them for use and occupation. In the order of management, comes, first, the expenses of maintaining public worship, as the necessary condition of renting pews ; secondly, the collection of pew rents, for the use of the pews during public worship ; thirdly, the making up the deficiency, where the pew rents fall short of meeting the expenses, by special collections.

      Addison Brown, of counsel, for respondent, urged :
    —I. This supplemental account was. taken by the referee in the same manner, and on exactly the same principles as the former account embraced in the judgment. The order of reference expressly so directs. These principles have been affirmed at general term by this court in this case, and the defendant is now an appellant therefrom in the court of appeals. ■ As respects this court, the matter is adjudged and cannot be further argued (41 N. Y. Sup. 369).
    II. The defendant endeavored to prove some additional or different facts, with a view to change the principles of taking the account. The evidence was allowed, though objected to by the plaintiff; but nothing material was proved different from the former state, of facts. The witness, Harris, says: “ there was no material change.” But if a change had been proved, it could not affect the principles of the accounting, for these were necessarily fixed by the judgment, and by the order made upon the trial of the cause. Any different rule would subject the judgment to liability to a partial reversal as often as any supplemental reference arose upon it. The decree cannot be thus changed “in the minutest particular” (Daniel Ch. Prac. 1506 * to 1511, * 1203; * 1 Russ. 329, 530).
   By the Court.—Sanford, J.

—The surrender of possession, upon payment of the amount due from plaintiff to defendant, as of May 31, 1875, according to the account which had been taken and stated as of that date, only operated to satisfy and discharge the judgment pro tanto. It did not cut off the plaintiff’s right to the rents and profits which accrued after May 31, 1875, when the account upon which the judgment was based ended, and November 13, 1876, when possession was delivered; nor did it deprive the court of jurisdiction to enforce payment of the amount of such rents and profits, when ascertained in the manner prescribed by the judgment. The reservation to the plaintiff, in the judgment, of liberty to take such supplemental account would be nugatory, but for the implication, necessarily involved, of reserved cognizance and jurisdiction over the cause, to the extent of rendering full and complete satisfaction, between the parties, as their respective rights should upon such accounting be made to appear. The equitable powers of the court are not so circumscribed and fettered as that a mere omission to declare them in advance shall preclude their exercise, in a case distinctly contemplated and provided for by a judgment. The intent to adjudicate finally upon the subject matter in controversy is clearly inferrible from the terms of the reservation, and to refuse such adjudication would be tantamount to a denial of justice.

The principles upon which the supplemental account was taken, were settled and determined by the previous orders and judgment of the court. Those principles have been affirmed, at general term, and must be deemed conclusively settled, for the purpose of this case, so long as the judgment rendered at general term remains unreversed by the court of appeals. The evidence adduced on the supplemental accounting was not such as to render inapplicable the principles upon which the original accounting was directed to proceed.

We are therefore of opinion that each of the orders appealed from should be affirmed with $10 costs.

Freedman, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    ALONZO CARR, Plaintiff and Appellant, v. THE MAYOR, &c., OF NEW YORK, Defendant and Respondent.
    JUDGE’S CHARGE TO THE JURY AND REFUSAL TO CHARGE AS SPECIFICALLY REQUESTED.
    The charge, as delivered, fairly submitted to the jury all the questions of fact which were presented for determination, and no exception was taken, and, afterwards, the court refused to charge specifically as requested by counsel.

      Held, that there was no error in this refusal, because, although the charge, as given, failed to adopt the precise lanr guage of the propositions, to charge, so requested, yet they were substantially embodied in the charge as delivered.
    EVIDENCE.

      Its reception without objection or motion to strilce it out, or for instruction to the jury to disregard it, is not error.

    In this case, an objection was made to a preliminary question as to whether the witness had any conversation with a party in regard to the subject-matter of the action. The court ruled that the question might be answered, in view of further evidence being given in regard to certain facts in the inquiry of which this question was preliminary, at the same time ruling, that if certain other facts were sought to be proved, they would be ruled out. This question was answered simply in the affirmative. The subsequent questions and answers were not objected to by the party objecting to the preliminary question, nor did he move to strike out the evidence thus received, or move the court to direct the jury to disregard the same, although the subsequent evidence should have been ruled out if objected to, or should have been stricken out, or the jury directed to disregard it, by the court, if such a motion had been made. This evidence was clearly of that character, which the court had intimated in its ruling on the first objection, if objected to, would be ruled out.

      Held, that the court ruled correctly in the first instance. By not objecting, in any form, to the reception of the subsequent evidence, the party precluded himself from subsequently claiming (on the appeal) that such evidence was erroneously received.

      Decided January 7, 1878.
    Before Curtis, Ch. J., and Sanford, J.
    Appeal by plaintiff from a judgment entered on a verdict in favor of defendants.
    The action is upon a negotiable certificate of indebtedness, of which the plaintiff claims to be the lawful owner and holder, by virtue of its indorsement to him, by the payee and another, for value and before maturity.
    The certificate purports, on its face, to have been issued by the board of trustees of the town of Morrisania, under date of November 12, 1873, and, by its terms, the said board promise to pay to the order of Michael Donohue, §500, with interest, in one year from the date thereof.
    The liability of the defendants for the debts of said board, by virtue of the statutes under which the town of Morrisania became part of the city and county of New York, is not iii dispute.
    Upon the trial, it appeared, without contradiction, that the said certificate was never duly issued, but was surreptitiously abstracted from the office of the treasurer of the town of Morrisania, by one William Leslie, who afterwards procured it to be indorsed by Michael Donohue, the payee, and, thereupon, himself indorsed and delivered it to the plaintiff.
    Thé evidence as to the circumstances under and the consideration upon which Leslie transferred it to plaintiff, was conflicting.
    The court submitted to the jury, without objection, the questions, (1) whether the plaintiff, at the time of its transfer and delivery to him, had notice of the fact that Leslie had feloniously abstracted it from the office of its legal custodian ; and, (2) whether, if he had no notice of that fact, he actually paid or parted with any valuable consideration on the faith thereof.
    The court charged, in substance, that the burthen of proof was upon the plaintiff to show that he purchased the certificate in good faith, and without notice of its invalidity, and parted with actual value on the faith of its transfer to him. That, if he had notice, he could not recover, no matter what he paid therefor. That, if he had no notice, he could only recover the value actually paid by him as the consideration, and on the faith of such transfer.
    lío objection was made, and no exception was taken to the charge, as delivered, but plaintiff’s counsel requested the court to charge in terms, first, that the certificate in suit was a negotiable instrument on its face ; and, second, that the negotiable paper of municipal bodies was governed by the same principles as that of private individuals.
    To the refusal, of the court to charge the jury in the terms of these requests, plaintiff’s counsel duly excepted, and exception was also taken to the ruling of the court in admitting certain evidence, more, particularly referred to' in the opinion of the court.
    The jury found for the defendants; and from the judgment entered on their verdict, the plaintiff now-appeals.

      James R. Angel, for appellant.

      William C. Whitney, corporation counsel, and A. J. Requier, for respondent.
   By the Court.—Sanford, J.

charge of the court fairly submitted to the jury the questions of fact which were presented for determination, upon the pleadings and evidence ; and such submission appears to have been accompanied by appropriate instructions as to the law of the case. No objection was made, and no exception was taken to the charge as delivered; but it is claimed and insisted that the judgment should be reversed, and a new trial ordered for error on the part of the court, In refusing to charge that the certificate of indebtedness, upon which the action was brought, is a negotiable instrument upon its face; and that the negotiable paper of municipalities is governed by the same principles as that of private individuals. Although the court failed to adopt the precise language of these propositions, they were both substantially embodied in the charge as delivered. The court expressly directed the attention of the jury to the fact that the certificate was payable to the order of Michael Donohue, and that, if treated, in all respects, like any other negotiable instrument, like a promissory note, before the plaintiff could recover thereon, he must show that he is a purchaser thereof without notice and for a valuable consideration. In thus comparing the certificate to “any other negotiable instrument,” as, for instance, a promissory note, the court charged, in substance, that such was the nature and character of the instrument in question. Its negotiability was assumed throughout the entire charge, and the law appropriate to negotiable commercial paper, was laid down for the guidance and government of the jury, as applicable to the case in hand. No distinction was suggested or recognized between the negotiable paper of a municipality and that of an individual, and the instructions to the jury clearly and accurately stated the principles of law applicable to the particular instrument in suit, irrespective of any question as to the corporate or individual, capacity of its maker. The requests embodied a mere abstract proposition which was fully adopted by the court, and effectually applied to the present controversy by specific instruction as to the particular certificate of indebtedness which constituted the subject-matter of the action. Under these circumstances, the omission or refusal to adopt the plaintiff’s propositions, in the precise language of the requests, and to charge the jury in their precise terms, cannot be assigned as error. An exception to such refusal will not be sustained.

A more serious question is presented by an exception to the ruling of the court, in permitting the witness, Francis Humbert, to testify as to a conversation between William Leslie and himself, in relation to the certificate in suit, subsequently to its transfer and delivery by Leslie -to plaintiff.

After Humbert had testified that he knew Leslie, the following question was put to him:

“ Q. Since November, 1873, has any conversation taken place between you in relation to the certificate in the possession of Mr. Carr 1

Carr had previously testified that the certificate came to his possession by transfer from Leslie, about the middle of November, 1873.

The question was objected to, unless the plaintiff was present.

The court stated that mere declarations as to the certificate would be ruled out, but that the fact that Leslie offered it for sale, subsequently to the time when the plaintiff said he bought it, might be proved.

The plaintiff excepted, and the witness thereupon answered, as follows :

£ ‘ Ans. There has.'”

The question was then put:

££ Q. What did he say in relation to it ”

To this question no objection was made, and the witness proceeded to relate the conversation, testifying fully and withoiit interruption, not only to the fact that Leslie had asked him to buy the certificate, then in the hands of Carr, but also to what Leslie had told him as to the circumstances under, and the consideration upon, which Carr had acquired such possession.

Although the evidence was hearsay, and, as such, objectionable, I am of opinion that its reception, under the circumstances stated, ought not to be regarded as error, constituting sufficient ground for reversal. In permitting the question as to whether or not a conversation had occurred between Leslie and the witness, to be answered, the court committed no error. The error, if any, consisted in the intimation of the court, as to the ruling it would thereafter make with respect to further questions, when the same should be addressed to the witness.

The next question, viz. : “Q. What did he say in relation to it?” clearly called for any declarations as to the certificate, which Leslie might have made to the witness, and an objection to that question, if duly taken, would, doubtless, under the intimation of the court, have been promptly sustained. I think it due to the court that the objection should then have been made. The plaintiff should not have speculated upon the chances of the answer, by permitting the witness to proceed with a detailed statement of the entire conversation, but should have insisted upon such a change in the form of the question, as would have adapted it to the intimation of the court. By allowing the question to be put and answered without objection, when the court had already expressed the opinion that evidence for which it called, was objectionable and inadmissible, the plaintiff precluded himself from subsequently insisting that such evidence was erroneously received. He should, at least, have requested the court to strike it out, or to instruct the jury to disregard it. But however objectionable the evidence may have been, in theory and upon principle, I am of opinion that it could not, practically, have prejudiced the plaintiff, inasmuch as it tended to show that he was a purchaser for value, at least to the extent of $50, advanced to Leslie upon receiving from him the certificate. As the jury failed to find in plain tiff’s favor for this amount, they must either have discredited the evidence altogether, as they well might do, in view of the uncontradioted testimony as to the felonious abstraction of the certificate by Leslie, or must have found that the plaintiff had notice of that fact; and in either case, the testimony could not have adversely affected the plaintiff. It had no bearing whatever upon the question of notice.

The judgment appealed from should be affirmed, with costs.

Curtis, Ch. J., concurred.


text:
    JAMES MURRAY, Plaintiff, v. THE MAYOR, &c., OF NEW YORK, Defendant.

      Decided January 7, 1878.
    STATUTE, UNCONSTITUTIONAL.
    Section 9 of chapter 382 of the Laws of 1870, which provides for the appointment and removal of attendants upon courts in the city and county of New York, held to be nugatory and void, because in conflict with the prohibition contained in article 3, section 16, of the Constitution, which provides, that “ no private or localbills, which may he passed, by the legislature, shall embrace more than one subject, and that shall be expressed ■in the title."

    The following cases, cited in the opinion of the court, are decisions in regard to the same statute, to the same effect : Brennan u. Mayor, &c., 47 Hoio. Pr. 178 ; Berrigan v. Mayor, &c., Common Pleas, 1875 ; Blunt v. Mayor, &c., Common Pleas, 1876.
    Before Curtis, Ch. J., and Sanford, J.

      In the year 1867, the plaintiff was employed by the supervisors of the county of New York, as an attendant upon the supreme court of the State of New York, held in and for the city and county of New York, and continued to perform the duties required of him as such attendant until May 1, 1872. His salary was fixed by the supervisors at $1,200 per annum, and he was paid for his services, at that rate, until November 15, 1871, when he received from Andrew H. Green, deputy comptroller, written notice to the effect that under and by virtue of section 9, of chapter 282, of the laws of 1870, he was removed as an attendant on the supreme court. Such notice was subscribed “Andrew H. Green, deputy comptroller.”
    The action was brought to recover $550, and interest, as compensation for plaintiff’s services, as such attendant, from November 15, 1871, until May 1, 1872.
    Upon proof of the facts above stated, the learned judge before whom the trial was had, dismissed the complaint, at the instance of defendant’s counsel, on the ground that the plaintiff was removed from employment on November 15, 1871, power to remove and appoint attendants on the supreme court having been lawfully conferred on the comptroller by section 9, chapter 382, laws of 1870.
    Exception was duly taken by counsel for plaintiff, to the ruling of the court in dismissing the complaint, and also to the refusal by the court to direct a verdict for the plaintiff for the amount claimed.
    Such exceptions were thereupon ordered to be heard, in the first instance, at the general term.

      Elliot Sandford, for plaintiff, in support of exceptions.

      William C. Whitney, corporation counsel, and D. J. Dean, for defendant, in opposition.
   By the Court.—Sanford, J.

—If the plaintiff was not duly and lawfully removed from employment as an attendant upon the supreme court by virtue of section 9, of chapter 382 of the laws of 1870, which provides that “ attendants on the several courts in the city and county of New York, except police and district courts, shall be appointed and removed, and their compensation fixed, by the comptroller,” it was error to dismiss his complaint.

It is contended on his behalf, that the written notice given him by Andrew H. Green, deputy comptroller, whereby, under date of November 14, 1871, his removal purports to have been effected, was ineffectual for that purpose, and was wholly nugatory and inoperative, (1) because section 9, of chapter 382, of the laws of 1870, is in conflict with the constitutional prohibition upon the legislature, in respect to the enactment of private or local bills, embracing more than one subject (Const., art. 3, § 16), and, (2) because it does not appear that the deputy comptroller had authority to exercise the power of removal, conferred by section 9 upon the comptroller, even if such power could lawfully have been exercised by the comptroller himself. Section 16, of article 3, of the Constitution, declares that ‘ ‘ no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” The act in which the power of appointing and removing attendants upon the courts in the city of New York is conferred upon the comptroller is a local, although a public act (Huber v. People, 49 N. Y. 132). None of its provisions relate to matters or persons outside the territorial limits of the county of New York. It is entitled, “An Act to make further provision for the government of the county of New York;” and its object and purpose, as expressed in its title, are to provide the revenues and regulate the expenditure necessary for and incident to the carrying on of the county government.

The title of the act, therefore, is in strict conformity with the constitutional requirement. It clearly expresses one subject, and only one, viz., the procurement and appropriation of the necessary “ways and means,” for the conduct and support of the government of the county.

If the body of the act embraces other subjects, neither necessarily nor incidentally connected with that thus expressed, the act is nugatory and void, in so far as such other subjects are concerned; unless, indeed, its provisions in regard to them are general and not local, in which case they are valid, notwithstanding their insertion in an act whose other provisions are merely local, and although the title of the act only relates to such other provisions (People v. McCann, 16 N. Y. 58; Williams v. The People, 24 Id. 405). If, however, any of its provisions are foreign or irrelevant to the support and administration of the county government, and are local in their application, it may with propriety be said to be a local act, and to embrace more than one subject; and, if such be the case, it violates the consititutional inhibition, and is inoperative and void. The power of appointing and removing the attendants upon the the several courts in the city of Hew York is in no wise incident to or connected with the support of the government of the county.

Inasmuch as the compensation of such attendants is payable out of the county treasury, an appropriation of the county revenues, pro tanto, in payment of such compensation, might properly be directed, in the body of the act, as clearly relevant to the subject expressed in its title. But no intent to effect a change in the organization of the several courts held in the city of Hew York, or in the law which prescribes the manner in which their respective officers and attendants shall be appointed or removed, can be justly inferred from the language of a title which merely purports to make provision for the government of the county. Such a change would constitute an appropriate subject for separate and distinct legislation, and would be susceptible of enactment by local bill, only when expressed in its title, and detached from all other subjects of legislation in its body.

The change attempted to be wrought by the ninth section of the act now under consideration is no less foreign to the subject of the act, as expressed in its title, than was the provision in chapter 383, of the Laws of 1870, reorganizing the court of special sessions, to the subject of that act. That provision was held by the court of appeals to be void, as in conflict with the requirement of section 16, of article 3 of the constitution (Huber v. The People, ut supra). The title of that act was precisely the same as the title of chapter 382, except that it related to the government of the city instead of the government of the county. The case of the People n. Stevens (51 How. Pr. 103), is also analogous. In that case the court of appeals held that a section of the tax levy act of 1866,—which provided for the continuance in office, for the term of three years from and after the passage of the act, of the engineer and assistant commissioner of the croton aqueduct department,—was void, as in conflict with the constitutional inhibition with respect to local and private acts, contained in section 16, of article 3.

It is understood that the supreme court, in the first department, has twice reached a conclusion adverse to the constitutionality of the provision now under consideration (Brennan v. The Mayor, &c., 47 How. Pr 178), and that the common pleas, in May, 1875, in the case of Berrigan v. The Mayor, and again in 1876, in the case of Blunt v. The Mayor, adopted similar views. Although not authoritatively binding upon us, the decisions of these tribunals are entitled to great weight, and should be followed, unless the court is satisfied that their conclusions are erroneous.

In regard to the authority of the deputy comptroller, to exercise the powers conferred by section 9, of chapter 382, of the Laws of 1870, it need only be remarked that the office of deputy comptroller was created by chapter 574, of the Laws of 1871; and his power to perform the duties belonging to the office of comptroller, among which, if section 9 of chapter 382, of the Laws of 1870 is valid, the appointment and removal of court attendants were included, is, by the express terms of that act, made to depend upon a written delegation of authority, from the comptroller, duly filed in the finance department. The case before us contains no evidence of such delegation, and there is no legal presumption in favor of its existence. This point, though pressed upon us at the argument, does not appear to have been suggested at the trial. It was there assumed, for the purposes of the case, that the plaintiff was, in fact, discharged by the comptroller, and there was no intimation on the part of the plaintiff, that such discharge was inoperative, for any other reason than that the authority of that officer to remove him was, in law, inadequate. The court merely held that the power to remove him was lawfully conferred upon the comptroller. If attention had been directed to the fact that the notice was not signed by the comptroller in person, but by his deputy, the missing link in the chain of evidence might have been promptly supplied, and the authority of the deputy to represent his principal been readily established. Exceptions should be so specific as to present plainly the precise question of law intended to be raised. Where errors arise from inadvertence or misapprehension, susceptible of immediate correction, if attention be directed to the oversight, they are rarely regarded as affording sufficient ground for reversal. We therefore prefer to rest our decision solely upon the constitutional question, presented on the argument. For the reasons suggested in the discussion of that question, the plaintiff’s exceptions should be sustained, and a new trial ordered, with costs to abide the event.

Curtis, Ch. J., concurred.


text:
    ALEXANDER CHURCHILL, Plaintiff and Respondent, v. JAMES A. BRADLEY, Defendant and Appellant.

      Decided January 7, 1878.
    Receipt purporting to be in full, and to be an absolute bar to all claims and demands, is subject to explanation, and does not conclude the party making the same, from proof of facts and circumstances showing, that it was not in full, and that there were existing claims and demands unpaid, although not due at the time the receipt was given (Ryan v. Ward, 48 JJ. Z. 204 ; Bliss ®. Shwarts, 65 W Z 444).
    Before Curtis, Ch. J., Sanford and Freedman, JJ.
    Appeal by defendant from a judgment in favor of plaintiff, entered ón the report of a referee, after the trial of issues of fact.

      John A. Taylor, for appellant.

      Royal S. Crane, for respondent.
   By the Court.—Sanford, J.

—The referee has found, and the evidence conclusively shows, that, during the years 1867, 1868 and 1869, the plaintiff was employed by the defendant, as a salesman, and under an agreement that he should receive, as compensation for his services in that capacity, a share of the net profits realized by defendant from each year’s business. During the year, 1867, such share was one-eighth, and amounted to $6,700, of which the plaintiff received in cash, from time to time, during the year, $2,500. Of the residue of his share in such net profits, being $4,200, two-thirds, or $2,800, were paid him in defendants’ notes, at the end of the year. The other third of such residue, $1,400, was retained by the defendant (under an understanding or agreement between the parties, with respect to which there is a conflict of evidence), and has never been paid. During the year 1868, the plaintiff’s compensation was to be four-elevenths and one-half of one-eleventh (4M-llths) of such net profits, and amounted to $15,115, of which he received in cash, from time to time during the year, $3,383. Of the residue of his share in such net profits, being $11,732, two thirds, or $7,821, were paid to him at the end of the year in defendant’s notes. The other third of such residue, $3,911, was retained by the defendant, pursuant to the understanding or agreement, above referred to, or one of similar character, and has never been paid.

During the year 1869, the plaintiff’s compensation was to be four-elevenths (4-llths) of such net profits. It does not clearly appear, from the evidence, what precise amount of net profits was realized from defendant’s business in 1869, and. the finding of the referee, in that regard, as it appears in the printed case (whether through a typographical error, or otherwise), is obviously incorrect. It does, however, sufficiently appear, and the referee has found, that, after deducting from the plaintiff’s share of such net profits the guaranteed salary to which he was entitled, and which he had drawn during the year, there remained of such share, a sum, whereof two-thirds was paid to him in the notes of the defendant, the other one-third being retained by defendant pursuant to the same understanding which had existed in previous years.

The referee has found that the one-third, so retained, amounted to $1,500, adopting a mis-statement of the plaintiff to that effect which he subsequently endeavored to explain and correct.

The evidence tends to show that the net profits largely exceeded the sum specified by the referee, and that, of plaintiff’s share therein, a larger sum than $1,500 was in fact retained by defendant and never paid to him.

There is,' however, little if any dispute about figures, and the error, if there be one, is in favor of the defendant. No point has been made with respect to it by either party on this appeal, and the defendant, • on cross-examination, in response to the question whether he thought Mr. Churchill’s statements as to the profits for each year to be correct, replied, “I presume they were. I presume he got them from°our books.” The controversy, so far as questions of fact are concerned, has turned mainly upon the issue made by the answer with respect to the terms and time of payment of the several sums reserved and retained by the defendant as above stated, out of the share of profits which had been agreed upon as the basis of plaintiff’s compensation.

The answer alleges in substance that on or about January 1, 1867, the defendant employed the plaintiff and promised to pay him for his services, in 1868, one-eighth of the net profits during the year as follows: $2,500 for living expenses, two-thirds of the remainder by defendant’s note as alleged in the complaint, and the remaining one-third upon the maturity of said note, should plaintiff so conduct himself as to fully satisfy defendant, said last payment to he entirely optional with the defendaoit.

The answer also contains like allegations with respect to the employment of defendant on or about January 1 in each of the years 1868 and 1869, on similar terms; the only difference being that in 1868, the plaintiff’s compensation is alleged to have been fixed at four and one-half elevenths of the net profits during that year, and $3,500 to have been allowed him for living expenses; while in 1869 his compensation is alleged to have been fixed at four-elevenths, and $3,500 to have been again allowed him for living expenses. In each year the final payment of “ the remaining one-third” is alleged to have been conditional or optional, as previously alleged with respect to the agreement for the year 1867.

The claim of the plaintiff, as stated in the complaint, and as he testified at the trial, is that such “remaining one-third” was withheld by the defendant, at the end of each year, upon the understanding and agreement that it should be used in the business as a part of the capital and subject to its risks, until the maturity of defendant’s notes (all of which were to mature January 1, 1873); but, that in case the business proved profitable, it should then be paid with interest.

It is conceded that, the business did prove profitable to and beyond that date. The evidence bearing upon the controverted point is conflicting, complicated and voluminous. It appears to have been carefully examined and considered by the referee, who had all the advantages afforded by personal observation of the parties. A thorough and searching scrutiny has failed to satisfy me that his conclusions are incorrect, or that the plaintiff has failed to make out his case by a preponderance of credible evidence. I concur with the referee in the belief that the payment to plaintiff of the reserved one-third was conditional only upon the successful or profitable conduct of the business durfhg the period fixed for its retention, and was not optional with the defendant, or dependent- upon his satisfaction with the plaintiff, or upon his “whim” or caprice.

The only question of law discussed on the argument related to the construction and' legal effect of certain receipts, purporting to be receipts in full, signed by the plaintiff and delivered by him to the defendant upon the accounting between them which was had at the close of each year.

The receipt of December 31, 1869, upon which the defendant relies as an absolute bar to the plaintiff’s claim in this action, is in the following terms :

“New York, December 31, 1869.
“Received of Bradley & Smith, thirty-six hundred dollars in cash, and note for four thousand nine hundred and fifteen dollars, being payment in full of all accounts and claims I may have had against them, including salary, commission, bonus or any other claims whatsoever, hereby terminating all business engagements.
“It is expressly understood that- this receipt is an absolute bar to any and all manner of claims excepting notes and engagement made in writing December 14, 1869, between Messrs. Bradley & Smith and myself, for salary for the year of 1870, the salary named being twenty-five hundred dollars.
“ALMANDER CHURCHILL.
“ Witness, Isaac Beale.”

Bradley & Smith was the style under which the defendant conducted his business.

It appears by the testimony of the plaintiff that this receipt, as well as others purporting to be “in full,” signed by him at the close of each of the two previous years, was given at defendant’s special request for reasons personal to himself, and upon his express promise and assurance that the plaintiff’s claim to the unpaid portion of his compensation should not be prejudiced thereby. The amount reserved by defendant was not then due, and would not become due for a period of three years. It does not appear that there was any controversy or difference between the parties, or that any compromise of a disputed claim was sought to be effected. The plaintiff received nothing at the time of signing the receipts unless it be the defendant’s notes therein mentioned, to which he was confessedly entitled. There was, therefore, ho consideration for any waiver, abandonment or release of his claim to the unpaid portion of his compensation. Moreover, the language of the receipt in terms confines its operation to claims which the plaintiff may have had at the time of executing it. Construing its language in the light of the surrounding circumstances, and without in any respect varying its terms, I am of opinion that it was intended to embrace only such claims and liabilities as were then presently due and enforceable, and that it did not and was not intended to relate to that part of plaintiff’s compensation, which it had previously been agreed between the parties should remain as capital in defendant’s business and subject to its risks for the three years next ensuing, and to which the plaintiff then had no claim and could have none until the condition should be fulfilled upon which his right would accrue.

The answer contains no averment of accord and satisfaction or of a release, and the evidence would not, as I think, sustain such defenses had they been properly pleaded. It is clear that the claim in suit has never been paid, and the receipts given by the plaintiff, although purporting to be in full and even to be an “absolute bar to all claims and demands,” do not in my opinion conclude him from proof of that fact (Ryan v . Ward, 48 N. Y. 204; Bliss v. Shwarts, 65 Id. 444).

The judgment appealed from should he affirmed with costs.-

Curtis, Ch. J., and Freedman, J., concurred.


author: By the Court.—Freedman, J.

text:
    WILLIAM PAINE, Plaintiff and Respondent, v. PETER NOELKE, Impleaded, &c., Defendant and Appellant.

      Decided January 7, 1878.
    promissory note.
    Negotiable and Non-Negotiable.—Maker and Indorser.— Consideration, when Implied, &c.—Effect of Indorsement in Blank before Delivery to the Payee, &c.—Practice and Pleadings.—Questions of, must be determined according to the Rules prevailing' in the Courts of this State.
    When the action is pending therein, and in the absence of proof to the contrary, it will be presumed by the courts of this State, that the law of another State in regard to a subject-matter before the court, is the same as the law in this State.
    The law and decisions in regard to several kinds of promissory notes, and the practice and pleadings when they are the subject-matter of the action, fully discussed in the points of counsel and the opinion of the court.
    Before Curtis, Ch. J., and Freedman, J.
    Appeal from order overruling demurrer.
    The complaint averred: (1) That on June 1, 1874, at Bergen, in the State of New Jersey, the defendant, Charles D. J. Noelke, made his certain promissory note in writing, dated on that day, and thereby promised to pay to the plaintiff the sum of §1,000, with interest, payable semi-annually, one year from said date.
    (2) That the defendant P. Foelke indorsed said note, when said Charles D. J. Foelke delivered the same to the plaintiff.
    (3) That said note at maturity was duly presented for payment to the said Charles D. J. Foelke, but was not paid, of all which due notice was given to the defendant, P. Foelke.
    (4) That no part of said note has been paid, ,&c., &c.
    The defendant, Peter Foelke, demurred on the ground that the said complaint did' not state facts sufficient to constitute a cause of action against him.
    The demurrer was overruled and judgment ordered in favor of the plaintiff thereon, with liberty to defendant to answer on payment of costs.

      James Wiley, attorney, and A. O. Anderson, of counsel for appellant.
    —I. It is presumed that the plaintiff, in his complaint, stated his case as strongly as it could be presented or the facts would warrant. The court will not assume anything to exist which the plaintiff has not alleged in his complaint (Roosevelt v. Dean, 3 Caines, 105). The plaintiff brings his action and.charges against the appellant as “indorser” only. The complaint is bad; it does not allege: (a) That there was any consideration for the instrument. (b) It does not appear to have been given for value, (c) It contains no allegation of any consideration for the appellant’s indorsement. ' (d) It contains no allegation that the maker received any credit or that the plaintiff, the payee, parted with any value on the strength of the indorsement. Fo allegation that any amount is due from the appellant by reason of or upon the instrument. No copy of the note is given, no allegation of any intent by the appellant- to charge himself as maker or guarantor. There is no allegation of any intent of the appellant to obtain or give credit to the maker by the indorsement. No allegation that the plaintiff took the note upon the faith of the appellant’s indorsement, (e) It does not contain any averment of any agreement or understanding with the appellant, or any one, that the appellant would pay the note. (f) It does not allege any facts which go to take the case out of the ordinary presumption of law as to the intent of the appellant to be a second indorser. No instrument of contract is set forth, only the legal effect of the supposed contract of the appellant, and that is pleaded as indorsement. And for aught that appears the indorsement by the appellant may have been to accommodate the plaintiff and not the maker.
    II. The complaint must allege every fact which it is necessary for the plaintiff to prove in order to recover (Draper v. Chase Mfg. Co., 2 Abb. N. C. 79, and cases there cited ; White v. Brown, 14 How. Pr. 282; Conklin v. Gundall, 1 Keyes, 228).
    III. There is no presumption of a consideration; it should be alleged. If the words “ value received ” had been stated it might have, under some of the cases, been sufficient without any further statement of the consideration (Prindle v. Caruthers, 15 N. Y. 425). Johnson, J., says, at page 430, “It is necessary, therefore, that the promise should, from the complaint, appear to have been made upon consideration” (and see Brewster v. Silence, 8 N. Y. 207). The rule of pleading is stated to be “every valid contract of whatever form or nature, must be founded upon some consideration, and as a general rule every complaint in an action founded upon such contract must allege the existence of consideration sufficient to sustain the contract.” There are two exceptions to this rule, viz.: 1st, in actions upon sealed instruments, and, 2nd, those upon negotiable notes (2 Wait's Practice, 379). But these exceptions do not apply to a non-negoliable note; the rule in that case is as follows : “ Where the instrument is not a negotiable one and it does not recite a consideration, as ‘ for value received ’ or the like, there is no presumption of consideration, and one must be proved on the trial as in the case of other contracts” (Wait’s Actions and Defences, vol. 1, page 608), and Edwards on Bills states the rule to be, "but where a promissory note is not negotiable a consideration must be alleged and proved on the trial” (Edwards on Bills and Promissory Notes, p. 677). It is only as to bills of exchange and negotiable promissory notes, that the rule that they are" prima facie evidence of valuable consideration applies (Manderville v. Welch, 5 Wheaton, 277). A promissory note not negotiable and not purporting on its face to be for value received, does not imply a consideration (Bristol v. Warner, 19 Conn. 16; Richardson v. Carpenter, 2 Sweeny, 360). In this last case Judge Monell, at p. 367, says of the instrument sued upon, that it “did not import a consideration, and it was necessary for the plaintiff to aver and prove, and the referee to find that there was a sufficient consideration for the acceptance.” And Jones, J., says: “It is perfectly clear that the instrument in question is not a draft nor any description of negotiable mercantile paper. It was therefore necessary to prove a consideration for the acceptance before the defendant could be held liable.” This case was reversed in the court of appeals (46 N. Y. 660) on the facts, but the law is stated by Gtrover, J., to be “ the mere acceptance did not of itself create a presumption of a sufficient consideration.” The case of Lynch v. Levy, 11 Hun, 145, is somewhat similar to the one under consideration, except that the note was made in the city of Hew York, and the complaint charged the defendant with indorsing the same to the plaintiff for value, and delivered to the plaintiff for value, and that the plaintiff became the owner thereof for value. At special term, Donohue, J., overruled the demurrer for the reason, as stated by him, that “the complaint here states that the note before its delivery to the plaintiff was for value paid to' the defendant indorsed by him.” At the general term the special term decision was sustained. Beady, J., delivering the opinion says, “There can be no doubt that if in such a case as this there are allegations showing that the indorsement was made to give the maker credit with the payee, the action can be maintained,” and that he (the defendant) “became bound to the plaintiff by a legal consideration for the promise to pay the amount of the note to him,” and that "the allegations of consideration in the "complaint with regard to the transaction are sufficient, as signalized by the words “for value” to express the fact that a consideration moved to the defendant from the plaintiff for the indorsement.” This case seems to have been decided both at special and general term upon the greund, and that solely, that the complaint contained a sufficient allegation of consideration for the indorsement. We submit that the case Richards v. Waring, cited by Sanford, J., does not help the complaint. The question in that case is stated by Potter, J. (39 Barb. 43), as follows: “What then is the legal effect to one who writes his name, without anything more, upon the back of a promissory note not negotiable, which is thereupon transferred to the payee named in the note, and who at the time of the delivery thereof to him parts with the full consideration mentioned in it, upon the credit of the note % That is, I think, this case fairly stated.” A copy of the instrument sued upon was set out in the complaint and recited “value received,” and that the consideration was given upon the faith of the indorsement. The case came before the court after trial, and the question was whether the person indorsing the note was entitled to notice of demand. Judge Hogteboom, in giving the opinion of the court of appeals (1 Keyes, at p. 579), says: “I think a complaint setting out the circumstances under which the note was executed, the manner of the signature, and the intent of the party to become liable thereon, would show a cause of action which would entitle the plaintiff to recover.” It will be found on examination that the words “value received” and the “intent of the person to become liable to pay” were considered, under the evidence and finding in the case, sufficient to entitle the plaintiff to recover. In the case now before the court, the complaint does not set forth the manner of the signature, or any intent to pay on the part of the appellant;' and while we do not dispute the soundness of the maxim cited (in part) by Judge Sanford, we claim that we are entitled to it in its entirety. Benignce faciendw sunt interpretaciones propter Simplicitatem Laicorum ut res magis valeat quam percat; et verba Intentioni, non e contra, debent inservire. The theory of the maxim is, that the law should uphold, not defeat the intent (Broom's Legal Maxims, 414, p. 347). Whether the person who puts his name upon the note can be held as either maker or guarantor depends on the “actual intention” (Note to Cromwell v. Hewitt, 40 N. Y. 494).
    IV. The note sued upon in this action was made in the State of New Jersey, and the effect of the appellant having indorsed it is to be determined by the laws of that State. The law of New Jersey is, that the making of such an indorsement as is alleged in this case, creates no implied or commercial contract whatever, and no action can be maintained thereon (Crozier v. Chambers, 1 Spencer, 257; Chaddock v. Van Ness, 35 N. J. 518; Jaques v. McKnight, 8 Am. Law Journal,
      344). It will be seen that the rule of law stated in Richards y. Waring (supra) is not the law of the State of New Jersey. This being the law of the State of New Jersey under which the appellant is to be held, the rule as settled in Hull v. Marion, 2 Sup. Ct. (T. & C.) 420; affi’d 59 N. Y. 652; Moore v. Cross, 19 N. Y. 227; Murphy v. Merchant, 14 How. Pr. 189; Coulter v. Richmond, 59 N. Y. 478 ; Woodruff v. Leonard, 1 Hun, 632; Phelps v. Vischer, 50 N. Y. 69; and Bacon v. Burnham, 37 Id. 616, apply to this case, and the complaint is bad in not setting out the facts required to be stated in those cases.

      C. Edgar Smith, for respondent.
    —I. It is well settled, at least in this State, that the indorser of a non-negotiable note does not assume the legal liability of an indorser. His liability is that of guarantor or comaker ; and the payee of the note can write over the name of the indorser the substance of the contract in the body of the note. The same liability attaches to such indorser as though the name was written under the maker’s in the body of the note (Story on Prom. Notes, § 473; Seabury v. Hungerford, 2 Hill, 84; Hough v. Gray, 19 Wend. 202). Words of guarantee in this case. Court says that indorsement in blank, indorser might repose on want of demand and notice (Griswold v. Slocum, 10 Bar. 402). Legal indorsement only on negotiable note (Richards v. Waring, 40 N. Y. 576; Cromwell v. Hewitt, Id. 491; Hale v. Newcomb, 7 Hill, 416; Dean v. Hail, 17 Wend. 214).
    II. The instrument is a promissory note, though it is non-negotiable., It, therefore, imports a consideration. No consideration need be pleaded. None need be proved, in the first instance. Want of consideration may be a defense ; proof of consideration would then be necessary. The complaint states that the instrument is a promissory note in writing. It states the fact of making and indorsing, of presentment and demand, and notice to P. Noelke. Notice was unnecessary to the latter, but its allegation is not a defect. It is a simple statement of a fact in the order of its occurrence, which may be immaterial (Prindle v. Caruthers, 15 N. Y. 425). A promissory note need not contain the words, “ value received.” The consideration is equally presumed without them as with them (1 Parsons on Notes, 193). The consideration need not be pleaded (Goshen Turnpike Co. v. Hurtin, 9 Johns. 217; Bank of Troy v. Hopping, 13 Wend. 557; Edw. on Prom. Notes, 169, et seq.).

    III. In all particulars the complaint is sufficient. It states all the facts necessary to be proved, unless issue is taken by answer. The production of the note and proof of signature would be sufficient on the trial if there was no denial of consideration. Nothing need be alleged not necessary to be proved, if not denied (Decker v. Mathews, 12 N. Y. 313).
    IV. The complaint does not state that the plaintiff is the holder and owner of the note, and it is well settled that this is not necessary (Keteltas v. Myers, 19 N. Y. 231).
   By the Court.—Freedman, J.

—The conflict of opinion prevailing among the courts of the different States, as to the nature of the contract implied by a blank indorsement of a promissory note before delivery to the payee, is quite extensive.

In the case of a negotiable note, it has been repeatedly held in this State, that a person making such an indorsement is presumed to have intended to become liable as second indorser, and that on the face of the paper, without explanation, he is to be regarded as second indorser, and as such not liable upon the note to the payee, who is supposed to be the first indórser j but that such presumption may be overcome by parol proof that the indorsement was made to give the maker credit with the payee (Coulter v. Richmond, 59 N. Y. 478; Smith v. Smith, 37 N. Y. Superior Ct. 203).

In the case of a non-negotiable note, the obligation assumed by such an indorsement must, of necessity, be either that of maker or that of guarantor, and the better opinion in this State seems to be that the contract should be construed as an absolute promise tó pay as a maker of the note (Richards v. Waring, 39 Barb. 42; affirmed 1 Keyes, 576).

In both cases, however, the maker is presumed to have made the note upon a sufficient consideration.

Thus, although bills and notes almost always contain the words “ valúe received,” and although it was formerly thought necessary to insert them, and that an instrument without them would' not be a bill of exchange, it has long been settled that they are immaterial, and a consideration is equally presumed to exist without them or with them (1 Parsons on Notes and Bills, 193, and cases there cited).

That the same presumption exists in regard to bills and notes without words of negotiability, has been distinctly held, in Downing v. Barkenstoes, 3 Caines, 137; Goshen Turnpike Co. v. Hurtin, 9 Johns. 217; Bank of Troy v. Topping, 13 Wen,d. 557).

The decisions in these cases rest upon the statute (1 R. L. 151; 1 Rev. St. 768), by which all notes in writing, made and signed by any person, and containing a promise to pay any sum of money therein mentioned, are made due and payable as therein expressed, and are to have the same effect, and are made negotiable in like manner, as inland bills of exchange, according to the custom M merchants, no matter whether the promise be to pay to the payee personally, or to his order, or to the order of the maker, or unto the bearer (§ l). The statute further provides that the payees . . . of every such note payable to them or their order, . . . may maintain actions for the sums of money therein mentioned against the makers . . . of the same in like manner, as in cases of inland bills of exchange, and not otherwise (§ 4).

It was therefore distinctly laid down in Goshen Turnpike Co. v. Hurtin, and Bank of Troy v. Topping, (supra), that the presumption stands good until the defendant destroys it, and hence that it is not requisite that a consideration should appear upon the face of the note, or be pleaded.

It is only in the case of instruments which either do not fall within the statute, or which contain in themselves something which destroys the presumption, that a different rule applies. Thus, in Prindle v. Caruthers (15 N. Y. 425), the instrument on which the complaint was founded was not a promissory note, because it was not payable at all events. If neither Henry Caruthers nor his wife had survived till the first day of April, succeeding the making of the instrument, nothing would ever have been payable upon it. It was held necessary, therefore, that the promise should appear from the complaint to have been made upon consideration. Inasmuch, however, as the complaint set forth the instrument in full, and the same purported to have been made for value received, the court came to the conclusion that a consideration had been sufficiently alleged. So in Spear v. Downing (12 Abb. Pr. 437), the instrument sued upon was not a promissory note, payable at all events, and as its language rather negatived than supported the presumption of a legal liability, the court held that, though the instrument was pleaded in full under section 162 of the Code, the absence of any allegation showing a consideration was a fatal defect. In Richardson v. Carpenter (2 Sweeny, 360, and 46 N. Y. 660), the discussion took place upon the proofs, and not upon the pleadings. The money was payable out of a particular fund, and therefore the instrument was not a draft within the law merchant. The remarks made in the course of that discussion by Monell, J., in this court, and by Grover, J., in the court of appeals, were to about the same effect as the decision in Spear v. Downing.

A promissory note, in order to fall within the statute, must consist of a written promise to say a certain sum of money, at a future time, unconditionally and at all events. It must not depend on any contingency, nor be payable out of any particular fund. The note in suit comes fully up to these requirements. It is a written promise to pay to the plaintiff the sum of $1,000 one year from the date thereof, absolutely and unconditionally.

The learned judge below was therefore correct in holding that, “ inasmuch as it appears from the complaint that one of the two defendants made the note in suit in favor, but not to the order, of the plaintiff, the payee therein named, that the other defendant indorsed it, and that it was thereupon delivered to the plaintiff, and inasmuch as such an indorsement before delivery imports the liability of a maker, these averments, taken together, must be deemed equivalent to an allegation that the two defendants made the promissory note, and that both are jointly liable as makers thereof. Although not negotiable, the instrument is a promissory note, and as such imports a consideration, though none is expressed. Want of consideration is matter of defense.”

The appellant insists, however, that the effect of his indorsement is to be determined according to the laws of Hew Jersey, where the note was made ; and that, upon this point, the rule of law stated in Richards v. Waring (supra), is not the law of that State. This question, it seems to me, is not involved in the present appeal, which presents simply a question of pleading that must be determined according to the course of practice prevailing in the courts of this State. In the absence of proof to the contrary, it will be presumed by the courts of this State, that the law of another State, in regard to a subject-matter before the court, in the same as the law in this State (Leavenworth v. Brockway, 2 Hill, 202; Cheney v. Arnold, 15 N. Y. 353; Robinson v. Dauchy, 3 Barb. 21, 29; Hoffman v Carow, 22 Wend. 324).

The order should be affirmed, with costs.

Curtis, Ch. J., concurred.


text:
    WILLIAM H. BUCKLEY, an Infant, by John O’Callaghan, his Guardian, Plaintiff and Appellant, v. THE NEW YORK AND HARLEM RAILROAD COMPANY, Defendant and Respondent.

      Decided January 7, 1878.
    Negligence and contributory negligence are necessarily relative as to time, place, person, and surrounding circumstances. They are questions of fact, and whenever either of them is to be determined upon conflicting evidence, it should be submitted to and determined by a jury.. But when the evidence is not only undisputed, but the facts are clear and convincing, and admit of but one conclusion, it is the right and duty of the court to decide, as matter of law, whether the ultimate fact involved therein, namely, the exist- . ence of negligence or contributory negligence, has or has not been sufficiently proven.
    Before Curtis, Ch. J., and Sanford and Freedman, JJ.

      Appeal from judgment dismissing the complaint.

      James M. Lyddy, of counsel, for appellant.

      Elliott F. Shepard, of counsel, for respondent.
   By the Court.—Freedman, J.

—Negligence, and consequently contributory negligence, is necessarily relative as to time, place, person, and surrounding circumstances.

Both are questions of fact, and whenever either of them is to be determined upon conflicting evidence, or upon a state of facts which, though undisputed, , is not conclusive, for the reason that fair-minded men may well differ as to the inferences to be properly drawn therefrom, it must be submitted to the jury and determined by them.

But when the evidence is not only undisputed, but the facts are clear and convincing and admit of but one conclusion, it is not only the right, but the duty of the court to say, on a motion for a nonsuit or for the direction of a verdict in favor of defendant, that as matter of law the ultimate fact involved therein, viz., the existence of negligence or contributory negligence, has or has not been sufficiently proven.

For the rule is well settled that in every case, before the evidence is left to the jury, there is or may be a preliminary question for the court, not whether there is literally no evidence, but whether there is any upon which the jury can properly proceed to find a verdict for the party producing it and having the burden of proof.

The difficulty is not in the rule, but in the application. of it. Each case must stand upon its own facts, and when this is borne in mind, and the authorities are read in the light of the peculiar facts upon which each of them rests, it will not be found difficult to reconcile the decisions of this State.

In the case at bar the following facts appeared at the close of plaintiff’s evidence, viz :

In July, 1870, the defendant owned and operated a steam railroad in Westchester county, from which, at Melrose, a side road branched off to Port Morris, which was used for carrying ore and other freight. A freight train which had come down on the main road, was switched off to the Port Morris branch to be connected with other freight cars standing on a side track ready to be taken to Port Morris. The cars moving from the main track to this side track were flat cars, and there were two brakemen upon them. While thus in motion the plaintiff climbed upon one of the said cars, and then proceeded forward. At the time of the accident he had reached the front end of the first car, which was loaded with ore, and when that car came in contact with the other cars to be incorporated into the train for Port Morris, he was thrown off and injured. He was then about nine years old, had lived in the vicinity for several years, and the premises on which he then lived with his parents were adjacent to the railroad tracks and separated from them by a fence. This fence he crossed in order to reach the cars. Upon his own showing, therefore, he was not only a trespasser, but guilty of contributory negligence.

The defendant, on the other hand, owed plaintiff no duty ; nor does it appear that the defendant either omitted to do something which the plaintiff had the right to require, or did something which he had the right to forbid. Hence no negligence was shown, and as to that, the burden of proof was on the plaintiff. From all that appears, it seems that the train was moving in the usual and ordinary way to make the connection, when plaintiff got on. It could not have moved fast, or plaintiff could not have managed to get on. But while thus in motion, the brakemen had neither the right to order him off at his peril (Hughes v. New York & New Haven R. R. Co., 4 Jones & Sp. 222), nor was it incumbent upon them to stop the train to let him get off. Indeed, there is no evidence to show that plaintiff would have got off, if he had been ordered to do so ; nor does it appear that the train could have been stopped in time to prevent plaintiff’s injury, or that the concussion was unnecessarily violent.

In Fleming v. Brooklyn City R. R. Co. (1 Abb. N. C. 433), the plaintiff, a newsboy, had a license to pass on and off the car for the purpose of selling papers to the passengers, and, having been injured, he sought to recover on the theory that the driver permitted him to pass out and off, by way of the front platform, without stopping or slackening the speed of the car, and without directing him to pass out by way of the rear platform. But the dismissal of the complaint was sustained on the ground that he was not a passenger ; that the company could not, in any sense, be deemed to be the guardian, for the time being, of children of tender years, who are permitted by their parents or guardians upon the cars for the purpose of selling papers, and that no duty arises in such a case to restrain them from exposing themselves to danger.

The case was properly disposed of, and the judgment should be affirmed with costs.

Curtis, Ch. J., and Saheord, J., concurred.


text:
    WILLIAM A. BUTLER, Plaintiff and Respondent, v. WILLIAM J. H. BALLARD, WILLIAM HALLEY, and LUCIUS MOORE, Defendants and Appellants.
    I. PARTNERSHIP.
    1. Accounting between partners.

      (a) SOME HAVING OVERDRAWN AND OTHERS UNDER-DRAWN.
    (1) As to each partner who has underdrawn, all the others are liable to him for their respective portions of the amount of the underdraft ; and as to each partner who has overdrawn, he is liable to all the others for their respective portions of such overdraft.
    (a) Insolvency of overdrawing partners, effect of.

    1. Does not affect the application of above principles.
    Example op accounting on above principles.
    1. Ballard, Butler, Halley, and Moore, were in partnership, their
    respective interests being 40, 22, 20, and 18, per cent.
    Ballard overdrew....................$15,248.08
    Halley overdrew..................... 11,966.51
    --$27,209.59
    Moore drew -$17,922.82 less than his
    capital and his share of the profits;
    that is, underdrew by..............$17,922.82
    Butler drew $9,286.77 less than his
    capital and his share of the profits;
    that is underdrew by...............- 9,286.77
    _ ,, ,. --$27,209.59
    _ ,, ,. On the accounting:
    Butler was charged in favor of Moore,
    with 22$ of $17,922.82............. $8,942.84
    Moore was charged in favor of Butler,
    with 18$ of $9,286.77.............. 1,671.62
    Balance in favor of Moore against Butler $2,271.22
    Ballard was charged in favor of Moore,
    with 40$ of $17,922.82............. $7,169.12 •
    Also with 18$ of $15,248.08 .......... 2,743.74
    Balance in favor of Moore against Ballard 9,912.86

      Decided January 7, 1878.
    Halley was charged in favor of Moore,
    with 30$ of $17,933.83............$3,584.56
    Also with 18$ of $11,966.51.......... 3,153.98
    Balance in favor of Moore against Halley 5,738.54
    Amount of Moore’s underdraft........ $17,933.63
    Moore was charged in favor of Butler, with 18$
    of $9,386.77 (credited above).
    Ballard was chaiged in favor of Butler,
    with 40$ of $9,386.77.............. $3,714.70
    Also with 33$ of $15,343.08.......... 3,353.48
    Balance in favor of Butler against Ballard $7,068.18
    Halley was charged in favor of Butler,
    with 30$ of $9,386.77.............. $1,857.35
    Also with 33$ of $11,966.51......... 3,633.63
    Balance in favor of Butler against Halley 4,489.98
    $11,558.16
    This includes the balance of the sum above charged against Butler in favor of Moore, after crediting above sum charged against Moore in
    favor of Butler.............................. 3,371.33
    Amount of Butler’s underdraft____ $9,386.94
    Halley was charged in favor of Ballard,
    with 40$ of $11,966.51............. $4,786.61
    Ballard was charged in favor of Halley,
    with 30$ of $15,343.08............. 3,048.63
    Balance in favor of Ballard against Halley____ $1,737.99
    Judgment was given:
    In favor of Moore against Butler, for........... $3,371.33
    In favor of Moore against Ballard, for....... 9,913.86-
    In favor of Moore against Halley, for........... 5,738.54
    In favor of Butler against Ballard, for.......... 7,068.18
    In favor of Butler against Halley, for.......... 4,489.98 ’
    In favor of Ballard against Halley, for.......... 1,737.99
    Held,
    Correct.
    Before Curtis, Ch. J., Van Vorst and Freedman, JJ.

      Appeal from order confirming referee’s report and overruling exceptions.
    This action is brought for an accounting between partners.
    The parties to the action were members of a limited copartnership under the name of Ballard, Halley & Co., from January, 1869, to December 31, 1874, when the same expired by limitation.
    The plaintiff and the defendants, 'Ballard and Halley were the general partners, and the defendant Moore, the special partner.
    The plaintiff contributed $15,000, the= defendant Moore $25,000 ; the defendants Ballard and Halley contributed nothing. The profits and loses were to be divided between the partners as follows : To Ballard forty per. cent., to Halley twenty per cent., to Butler twenty-two per cent., to Moore eighteen per cent.
    The general partners were each permitted to draw from the profits stipulated sums for living expenses.
    The business was a profitable one, but after payment of all the firm debts, it appeared that by reason of overdrafts and bad debts, all the general partners had more than anticipated their share in the profits, and that there did not remain sufficient funds to repay the capital contributed, and all of the partners their shares in the assets.
    On defendant’s motion it was referred to Henry J. Scudder, Esq., referee, to take and state the account between the parties.
    The referee made his report, whereby, after finding and reporting the sums due to Butler and Moore, and by Ballard and Halley, he found and reported as follows:

      “First, the sums due to Butler and Moore must be paid by all the partners in the percentage proportions of their interests.

      “Second.—The sums due by Ballard and Halley must be paid to all the parties in like proportions, and thus each partner will have in the form of a claim upon one or all the others as the result may determine, just his share of the whole” sum.
    “Thus there is due to Moore $17,922.82.
    “Of this Ballard must pay 40 per cent, or $7,169.12 -Butler must pay 22 per cent, or 3,942.84 (a) Halley must pay 20 per cent, or 3,584.56 Moore pays to himself or retains 18 per cent, {d)

    “There is due to Butler $9,286.77
    “ Of this Ballard must pay 40 per cent. $3,714.70 Halley must pay 20 per cent. 1,857.35 Moore must pay 18 per cent. 1,671.62 (e) Butler pays to himself or retains 22 per cent. (5)
    “Ballard must then distribute the sum he has drawn in excess, viz : $15,243.08, and this will be distributed as follows :
    To Butler 22 per cent. = $3,353.48
    To Halley 20 per cent. = 3,048.62
    To Moore 18 per cent. = 2,743.74
    And he retains 40 per cent, as his own share or proportion.
    “ Halley must then distribute the sum he has in excess, viz: $11,966.51, and of this
    Ballard takes 40 per cent. = 4,786.60
    Butler takes 22 per cent. = 2,632.63
    Moore takes 18 per cent. == 2,153.98
    And Halley retains 20 per cent, as his own.
    “ The account will then stand:
    Butler will owe to Moore $3,942.84
    Moore will owe to Butler 1,671.62
    Deducting the latter we have $2,271.22 for which, with interest from January 1, 1875, Moore is entitled to judgment against Butler.

      “Ballard will owe to Butler the sum
    of...........$3,714.70
    3,353.48 (c)
    $7,068.18
    to Moore the two sums of . $7,169.12
    2,743.74 (/)
    $9,912.86
    to Halley $3,048.62
    “Halley will owe to Butler the two
    sums:..........$1,857.35
    2,632.63 (c)
    $4,489.98
    to Moore the two sums of . $3,584.56
    2,153.98 (/)
    $5,738.54
    to Ballard . . . $4,786.61

      As Ballard owes Halley 3.048.62
    there will be due--
    by deduction $1,737.99
    from Halley to Ballard, for which, with interest from January 1, 1875, the latter should have judgment against the former. Moore is entitled to judgment against Ballard for $9,912.86, with interest from J anuary 1, 1875, and to judgment against Halley for $5,738.54, with interest from January 1, 1875.
    “Butler is entitled to judgment against Ballard for $7,068.18, with interest from January 1, 1875, and to judgment against Halley for $4,489.98, with interest from January 1, 1875.
    “ The cash on hand, and all moneys hereafter realized, should be divided according to the proportions herein recognized ; and as received, should be paid by the receiver to the creditor parties.” *
    * Provision for the repayment of item (a), and the payment of item (5), is made by items (c); and provision for the repayment of item (d), and payment of item (e), is made by items (/).
    The result is that Ballard and Halley are made ultimately liable for the amounts due Butler and Moore, in the proper proportions according to their respective interests; while Halley is made liable to Ballard for the excess of his overdraft over that of Ballard.
    It will be seen that by the principle adopted on the accounting, with above result, Butler is obliged to pay to Moore, out of the sum he had drawn (although he had not drawn as much as he was entitled to), ^3,371.22; and to accept, in place of this sum, a claim against Ballard and Halley.
    The court held, that even if Ballard and Halley were, as alleged, insolvent, the principle adopted was the correct one.
    The efEect, it will be observed, is to produce equality between Butler and Moore, according to their respective interests, both as to the amounts actually received by them in cash on account of their respective shares, and as to the amounts which must rest as to each in the shape of claims against Ballard and Halley.
    The report of the referee was confirmed at special term, and defendant’s exceptions thereto overruled.
    From the order entered thereon, defendants appeal.

      Messrs. Childs & Hull, attorneys and of counsel, for appellant Moore, among other things, urged :
    —I. As Ballard and Halley are insolvent and cannot pay, the amount of their indebtedness becomes a loss to be borne by the two creditor partners, in the same proportion as the profits and losses have been divided between them heretofore, viz : as 22 is to 18. The relative proportions of Butler and Moore, the creditor partners, to each other, by the partnership agreement, was as 22-40ths or 55 per cent, to Butler, is to 18-40ths or 45 per cent, to Moore. The relative proportions of Butler & Moore to each other, being 55 per cent, to Butler, and 45 per cent, to Moore, or as 22 is to 18, Butler will owe Moore 45 per cent, of his account, and Moore will owe Butler 55 per cent, of his account. The difference between these two sums will adjust the accounts of Butler and Moore with each other, thus :

      45 per cent, of Butler’s acc’t, $9,286.78, is $4,179.05
    55 “ “ Moore’s “ 17,922.81, is 9,857.54
    Difference due Moore, by Butler, $5,678.49

      Weeks & Forster, attorneys, and George H. Forster, of counsel, for respondent, among other things, urged :
    —I. The principles which regulated the reference, are briefly stated in if Newdecker v. Kohlburg (3 Daly, 410). In taking or stating the final accounts of a copartnership, it is to be ascertained what each partner is entitled to charge in account with his copartners, each being entitled as against the other to everything he has advanced or brought in as a partnership transaction, and also what the other has not brought in, or has taken out more than he ought (cites West v. Skip, 1 Ves. Sen. 239), and then to apportion between them the profits to be divided, or losses to be made good, and ascertain what, if anything, any partner should pay to the other in order that all cross claims- may be settled (cites Lind, on Part. 828). This accounting is to be governed, however, as between the partners, by the special provisions of the copartnership agreement, and the right to a return of capital invested by each partner, is only to be destroyed by express stipulation to the contrary (3 Daly, 410, 414).
    II. Had the method suggested by the plaintiff’s exceptions been adopted, the result would have been more favorable to, the plaintiff.
    III. Defendants cannot complain of the method adopted by the referee, and the order and judgment appealed from should be affirmed, with costs.
   By the Court.—Freedman, J.

—It is conceded that the referee has correctly found the amounts withdrawn by, and the balance due to and by, the several parties to the co-partnership. It therefore appears without contradiction that there was due from all sources :

To Butler.......$9,286.77

To Mpore....... 17,922.82 .

Total......$27,209.59

On the other hand Ballard and Halley had largely overdrawn their respective accounts, and there was due

From Ballard......$15,243.08

From Halley...... 11,966.51

Total......$27,209.59

—or exactly the aggregate amount to which Butler and Moore were entitled.

The cross claims arising from this state of facts between the partners themselves, the referee determined upon the theory, (1) that the sums due to Butler and Moore should be paid by all the partners in the percentage proportions of their interests ; and (2) that the sums due by Ballard and Halley should be paid to all the partners in like proportions, and that thus each partner should have, in the form of a claim upon one or all the others, just his share of the whole sum.

It is also conceded that if this theory is applicable the computations made upon it are not open to objection.

In my judgment the theory adopted and acted upon was the correct one. It is in accordance with the principles laid down in Neudecker v. Kohlberg (3 Daly, 407), and the provisions of the articles of co-partnership in this case.

The alleged insolvency of Ballard and Halley does not call for a different apportionment. For even if such insolvency existed, the amounts overdrawn and due by them cannot, as between the partners themselves, be treated as losses within the true intent and meaning of that word as used in the articles of copartnership. Moreover, the said articles expressly provided “that at the termination of the partnership, either by death or otherwise, or • its own limitations after the payment of all the indebtedness of said partnership, there shall first be paid from the assets of said partnership, to the said parties of the third and fourth parts (Butler and Moore), the capital contributed by the said parties of the third and fourth parts, to the common stock . . . with interest, ... and, secondly, that the respective interests of all the parties hereto, in the profits of said partnership, shall be .adjusted and paid according to their respective shares of per centum in the same.”

The claim, therefore, which has been advanced by the appellants, that the amounts overdrawn by Ballard and Halley constituted losses to be borne by the two creditor partners in the proportion that the profits and losses were divided between them, is quite .untenable.

The order should be affirmed, with costs.

Curtis, Ch. J., and Van Vorst, J., concurred.