author: Barrett, J.:

text:
    JOSEPH BRADY, Plaintiff, v. WILLIAM H. BEADLESTON and Others, Defendants.

      Former adjudication — when not a ba>' — when the defendant in replevin having succeeded 'may bring a new action for damages fen' the talcing — what is res ad judicata — burden of proof.

    One Brady was the owner of an ice-box, to recover which the firm of Beadleston & Woerz brought an action of replevin in a District Court of the city of New York, alleging title thereto and a wrongful detention, and obtained possession pf the icebox. In that action Brady subsequently recovered a general judgment, which did not, however give damages or direct a return of the box. Brady then brought this action for damages against the firm.

      Held, that the former action was not a bar to the claim for-damages.
    That it was optional with Brady whether he should demand a return of the property and damages in the action in the District Court or not.
    That where property is taken under a provisional remedy the defendants’ answer is in the nature of a cross-action, and the rules relative to a former adjudication do not apply.
    That said rules did apply, however, as against the defendants, as regarded the question of their ownership.
    That, since they alleged title in the District Court, and since Brady there obtained a general judgment, this court must assume that the question of title was at issue in that court; and that if at issue the decision there was conclusive.
    That if the judgment in said court proceeded upon some ground other than title the burden was upon the defendants to show that fact.
    Exceptions of the defendants, William H. Beadleston, Alfred N. Beadleston, Ernest G. W. Woerz and De Forest Fox, taken upon a trial had at the New York Circuit before the court and a jury, at which the plaintiff recovered a verdict for eighty dollars, and at which the said exceptions were directed to be heard in the first instance at General Term, judgment upon the verdict to be suspended until after the decision upon the motion for a new trial based upon such exceptions.

      A. Edww'd Woodruff.\ for the plaintiff.

      Moses Weinman, for the defendants.
   Barrett, J.:

Stripped of verbiage, the complaint states that the plaintiff Brady was the owner of an ice-box, for which the defendants, who compose the firm of Beadleston & Woerz, brought replevin against him in a District Court. The marshal, in that action, under the usual preliminary proceedings, took the ice-box away from Brady and delivered it to Beadleston & "Woerz. The complaint there set up title to the ice-box in Beadleston & Woerz, and averred that it was wrongfully detained from them by Brady after demand. _ Issue was joined by the filing of Brady’s answer, and .the issue was tried and a general judgment rendered for the defendant Brady, with costs. Thereupon this action was brought, and upon the trial at circuit the plaintiff had a verdict for eighty dollars. The defendants’ main contention is, that the plaintiff should have obtained his relief in the action in the District Court; that he was bound to assert his rights there and to secure an affirmative judgment for the return of the ice-box “ either with or without damages for the taking, withholding or detention thereof ” (Consolidation Act, § 1342), and that having failed to do so, this action cannot be maintained. We think this position is untenable. It was optional with the defendant, in the replevin action, to take advantage of this provision of the statute. It was held in Yates v. Fassett (5 Denio., 21), that where one who was sued.in replevin in the detinet and pleaded non detinet, and had .-a verdict in his favor, with judgment for costs, but not for a return, .afterwards brought trover for the property against the former plaintiff, such action was maintainable, though he might have so pleaded in the first suit as to have entitled himself to a return or to the value of the property in damages. The principle that parties are concluded by the final judgment of a court, of competent jurisdiction, not only as to the subject-matter actually determined, but as to every other matter which was in issue and which the parties might have litigated, is not applicable, for the reason that the defendant’s affirmative claim to the property is in the nature of a cross suit arising from the summary act of the plaintiff in taking possession under the replevin writ. The defendant is allowed, by the statute^ not merely to defend himself against the charges of the complaint, but to set up his affirmative rights as against the actual taking under the provisional remedy. This view was enforced by cogent reasoning in the case cited (pages 31 and 32), and the following observations of Whittlesey, J., are directly in point:

“ But as the defendant made no claim of title, the verdict could not find any title in him, nor the court adjudge any return to him. Stick verdict ascertains nothing as to the title of the property, except that it was not in the plaintiff. If the defendant, in whom the title really is, afterwards institutes an affirmative action to obtain possession, is it a sufficient answer on the part of the former plaintiff who is adjudged to have no title, if he avers that the real owner should have interposed his claim in the former suit, and having neglected to do so, shall be decreed to have lost it ? I cannot think it is. The plaintiff in the replevin suit was permitted summarily to-take possession of the property. On this account the defendant,, as a favor, is permitted to plead title with the viewr of having a return adjudged in the same suit. But I cannot think that he is compelled to plead or be barred from setting up his title afterwards.”'

This case was considered and approved in Angel v. Hollister (38 N. Y., 378), where Woodruff, «7., remarked that the fact that the plaintiff has no affirmative judgment for a return does not, per se, show that he is not entitled to the possession. The illustration given in Yates v. Fassett is apt and conclusive. A defendant in an action may, in a proper ease, recoup his damages, and may obtain his affirmative judgment, but the fact that he omits to recoup does not bar his cross-action.”

In this latter case, McKnight v. Dunlop (4 Barb., 36), upon which the defendants here rely, was reviewed, and, so far as it seems-to conflict with Yates v. Fassett, disapproved; Miller, J., stating that the latter case “ has never been directly considered and overruled, and which, I think, should stand as the better exposition and elucidation of the principle involved, and as a well-considered and sound decision of the question.” If these views are applicable to the-courts of record, a fortiori they should govern in the district courts-where people, ignorant of the technicalities of practice, so frequently appear without counsel. We think, therefore, that the plaintiff was entitled to maintain this action, and that his failure to obtain affirmative relief in the District Court was no bar thereto.

It is also contended that the learned judge erred in excluding evidence tending to show the defendants’ ownership of the ice-box. But that question was settled against the defendants in the District Court, and was res adjudicata. We must assume, in the absence-of extrinsic evidence, that the allegations of the plaintiff’s complaint in that action were there put in issue. We find in that complaint an allegation of title in the plaintiffs there, and we also find that a general judgment was rendered in favor of the defendant Brady. If the issues actually decided did not embrace the question of title, if the judgment was rendered upon some subsidiary ground, such as the failure to prove a demand, it was incumbent upon the defendants here to mate that appear. The judgment was prima facie a bar, and the burden was on them to prove that it was not res adfidieata, with regard to some particular allegation of the complaint put in issue by the answer. This doctrine was laid down in Dear v. reed (31 Hun, 594), where a judgment, general in its terms and disclosing no ground upon which it was rendered, was held to be presumptively a determination of all the issues involved, and that the burden was with the party claiming the contrary to prove that it was not. "We may add that the proof offered by the defendants on this latter head was in itself incompetent and was properly excluded. The question of damages was fairly submitted to the 'jury, and they were properly permitted to allow the real value of the ice-box and the damages actually caused by its removal. And the verdict, under all the’ .circumstances, was certainly moderate.

The exceptions should, therefore, be overruled and judgment ordered in favor of the plaintiff upon the verdict, with costs.

Yan Brunt, P. J., and Andrews, J., concurred.

Exceptions overruled and judgment ordered in favor of plaintiff upon the verdict, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    CHAMPION BISSELL, Appellant, v. THE PRESS PUBLISHING COMPANY, Respondent.

      Libel —privileged communications — repoi'ts of pt'oceedings in Police Courts — matter in mitigation of damages is a partial defense and may be so pleaded— Code of ■

      Civil Procedwre, secs. 508, 1907.
    In an action brought to recover the damages resulting from an alleged libel the answer began with a general denial; it then alleged, as separate and partial defenses, that the publications set forth in certain of the causes of action were fair and true accounts of proceedings had before a police justice, were published without malice and in the belief that they were true, and that they were privileged. These defenses were not specifically pleaded in mitigation of damages, and upon that ground, and upon the ground that the publications were not privileged communications, the plaintiff demurred.

      Held, that the demurrer could not be sustained.
    That, within section 1907 of the Code of Civil Procedure, fair and true reports of proceedings before police magistrates were privileged.
    That, within section 508 of said Code, matter tending to mitigate the damages, in an action brought to recover for a personal injury, is now a partial defense, and may be pleaded as such.
    Appeal by tbe plaintiff, Champion Bissell, from an order dated May 4, 1891, and entered in the office of the clerk of the city and county of New York, overruling a demurrer interposed by the plaintiff to the second and third partial defenses set forth in the amended answer, and from an interlocutory judgment entered in said clerk’s office on the 11th day of June, 1891.

      D. D. McKoon, for the apjiellant.
    Lowery, Stone <& Auerbach, for the respondent.
   Barrett, J.:

The action is for libel. The complaint sets forth several causes of action. The answer commences with a general denial. It then alleges that, so far as the publications set forth in the seventh and eighth causes of action purport to be accounts of proceedings before . a police justice, the same were fair, true and correct accounts of such proceedings, and were published without malice and in the belief that they were true. Upon this it is further alleged that such publications were privileged and are not actionable. These defenses are not specifically pleaded in mitigation of damages. They are characterized as separate and partial defenses. The demurrer is upon the ground that these partial defenses are insufficient in law, upon the face thereof, and two points are made against them: First, that the proceedings before the police magistrate were not privileged; and, second, that they should have been specially pleaded in mitigation of damages, and not in justification.

The authorities cited by the appellant upon the first point were either at commonlaw or prior to the act of 1854, chapter 180. The case which he mainly relies upon (Stanley v. Webb, 4 Sandf., 21) was decided prior to the passage of this act, and it is no longer an authority. Indeed, it was subsequently held by the same court (in 1814) that proceedings before a police magistrate were “ judicial proceedings ” within the meaning of the act (Ackerman v. Jones, 37 Supr. Ct., 55, and cases there cited), and that there was no distinction between such proceedings and the regular proceedings in a court of law. We have no doubt of the correctness of this decision. Fair and true reports of proceedings before police magistrates are within both the spirit and the letter of section 1907 of the Code of Civil Procedure, and their publication is thereby privileged. The second point is also untenable. Whatever the rule may have been prior to the Code of Civil Procedure, matter tending to mitigate damages in an action for a personal injury is now a partial defense. (Code of Civil Pro., § 508.) It may, therefore, be set up as such in the present case. If the matter set forth as a partial defense is established upon the trial, it will eliminate so much of the libel set forth in the complaint as is covered by the privilege. Thus the libel will be shorn of some of its elements and the damages will be proportionately reduced. The appellant, in his elaborate argument and citation of authorities on this point, overlooks this new provision of the Code, which seems to have been enacted for the very purpose of changing the old rule, as laid down in Van Benschoten v. Yaple (13 How. Pr., 100); Newman, v. Otto (4 Sandf., 608), and other cases. If matter tending only to mitigate or reduce damages is, under this section, a partial defense, then surely it may be pleaded as such. Now,’ the matter here pleaded and admitted by the demurrer is, strictly speaking, a partial defense to the cause of action set forth. For it establishes a perfect defense to part of the libel. It also, and, indeed, as a sequence, tends to mitigate the damages recoverable for this entire publication. In either aspect it was, under this section 508, properly pleaded as a partial defensé.

The judgment appealed from should, therefore, be affirmed with costs, with leave to withdraw the demurrer on payment of costs of appeal and costs of demurrer at Special Term.

Yan Brunt, P. J., and Andrews, J., concurred.

Judgment affirmed, with costs, with leave to withdraw the demurrer on payment of costs of appeal and costs of demurrer at Special Term.


text:
    THE CONTINENTAL INSURANCE COMPANY, Plaintiff, v. THE ÆTNA INSURANCE COMPANY, of Hartford, Connecticut, Defendant.

      Insurance —■ ‘ ‘ risk ” — when it means the actual value of the property.

    Tlie .¿Etna Insurance Company, and certain other companies, agreed with tlie Continental Insurance Company to reinsure its risks. The policy of reinsurance was indorsed as follows: “This policy covers the Continental Ins. Co., as reinsurance to the extent of one-lialf of the amount of each and every risk which equals or exceeds in value the sum of $15,000, and which the said Continental Ins. Co. may have on cargo of any one barge or lighter, and insured by them uuder their open policies issued to the following named persons:” * * * “On cargoes of the value of $50,000 and upwards this policy is to cover the excess of $25,000, not exceeding the sum of $50,000 on any one cargo.”
    The policy contained a prior indorsement that it should cover “ one-half of the value of all cargoes shipped by Twombly & Co.,” one of the persons named in the above indorsement. It also contained a condition that the insured should “enter for insurance all goods at the full value thereof.”
    In an action by the Continental Insurance Company to recover, among other things, under said policy for losses upon cargoes, whose value separately was less than $15,000:
    Held, that the policy, construed in the light of the several provisions quoted, must be taken to cover those risks only where the value of the particular cargo was at least $15,000.
    That the liability of the defendant did not attach where a risk was arbitrarily stated at $15,000; but the actual value of the goods was less than that sum.
    Exceptions of the plaintiff, the Continental Insurance Company, taken upon a trial had at the New York Circuit, before the court and a jury, at which a verdict was rendered for the plaintiff, by direction of the court, for the sum of $137.81 upon the fourth- cause of action stated in the complaint, and the complaint was dismissed as to the first three causes of action stated therein, and directed by an order, entered in the . oifice of the clerk of the city and county of New York on the 13th day of January, 1891, nune fro tuno, to be heard in the first instance at the General Term, and that judg ment be suspended in the meantime.
    In none of the three cases of loss, for which the action was in part brought, did the value of the cargo at any time equal $15,000.

      EUhu Boot and Samuel B. Olarke, for tlie plaintiff.

      J. A. Shoudy, for the defendant.
   Barrett, J.:

This action is upon a policy of reinsurance, made by the defendant jointly with two other companies, to the plaintiff. The sole question is as to the proper construction to be placed upon the following indorsement, which was made upon the policy:

“ On and after this date this policy covers the Continental Ins. Co., as reinsurance, to the extent of one-half of theamowit of each amd every risk which equals or exceeds in value the sum of ‡15,000, and which the said Continental Ins. Co. may have on cargo of any one barge or lighter and insured by them under their open policies issued to the following named persons, viz., Twombly & Co., John H. Starin, N. Y. Lighterage & Transportation Co., New Jersey Lighterage Co., F: "W. Jarvis & Co., Johnson & Hammond, S. Haff & Co. and F Lawson. On cargoes of the value of $50,000 and upwards this policy is to cover the excess of $25,000, not exceeding the sum of $50,000 on any one cargo.”

The plaintiff claims that the words italicized refer to the amount of liability specified by the assured, while the defendant contends that they refer to the real value of the cargo insured. In other words, to the actual fact on that head rather than to the estimate of the assured. If the plaintiff’s construction is correct, then the restriction in question might be rendered practically useless. For the assured could then, in all cases, specify $15,000 as the amount of insurance, and that specification, rather than the real risk, would then serve as the sole guide. "We agree with the plaintiff that the word “risk” in this connection does not mean “loss.” But does it for that reason mean any arbitrary sum which the assured or reinsured may fix? "We think not. Force must be given to the words which here follow the word risk, namely, the words: “Which equals or exceeds in value the sum of $15,000.” The plaintiff says this means in value to the insurer; that is, as a premium-producing sum. The defendant construes it as though it. read “which equals or exceeds m value of cargo $15,000.” We think the latter is the true construction, and that this view not only gives real effect to the limitation plainly contemplated, but is in harmony with the rest of the contract. Thus, it is in harmony with the provision of the policy that the insured shall “ enter for insurance all goods at the full value thereof.” This expression negatives the idea that the assured may enter goods for insurance at any amount they please, however greatly in excess of the full value. The object is to specify the true value in advance of any disaster, as it is also the object, under another provision, to require payment, in case of loss, of the true value on the day of the disaster. By a previous indorsement upon this instrument, it is provided that the policy should cover “ one-half of the value of all cargoes shipped by Twombly & Co.,” on certain barges. What is there meant is plain enough. The. indorsement in question is apparently a supplement to this earlier indorsement. It extends the subject of reinsurance to others besides Twombly & Co., who are holders of the plaintiff’s open policies, but it limits such reinsurance to risks which equal or exceed in value the sum of $15,000. It is reasonable to conclude that the value contemplated in the latter indorsement is, in substance, the same as that specified in the previous. The subjects are cognate, and the two indorsements are ingpari materia. Again, the last words m the indorsement under consideration fortify this construction. Here again we find an extension combined With a limitation. And the extension is not to reinsurance based upon a specification of value by the assured, or upon a specification of the company’s outside liability to be impressed upon the face of the policy, but upon the real fact, namely, “ On cargoes of the value of $15,000 and upwards.” There is nothing whatever in the policy or in the indorsement thereon to justify the belief that it was the intention to reinsure one-lialf of the plaintiff’s liability to each of the assured whenever such assured chose, as between themselves and their insurer, to specify $15,000 or upwards as the value of the cargo laden. If such had been the intention, it would have been easy to express it. The substitution of the words “face amount” for the word “value” would then have been natural.; but in that case we 'would have expected to find, in the last provision of this indorsement, a similar change. That is, instead of the words “ on cargoes of the value of $50,000 and upwards,” some such words as “ on insurance to the face amount of $50,000 and upwards.” As it is, the “ value of the risk ” was plainly the amount of actual liability assumed by tlie company, namely, “tlie full value ” of tbe cargo. That is, the real, and not the estimated, value. Indeed, that risk attached as soon as the merchandise was laden, and it could not be varied by a subsequent specification* of value in excess of the fact. In the case at bar it is conceded that in none of the instances referred to in the complaint did the value of the cargo equal the sum of $15,000. That fact brings the case within the restrictions contained in the indorsement in question, and that restriction cannot be evaded by the act of the assured in specifying a value in excess of the “ full value ” of the merchandise laden. If even a substantial compliance with the requirement as to valuation, which is all that the law exacts, should lead to uncertainty in this business, then the reinsuring companies should at least be permitted to say whether they are willing to be bound blindly by the specification of value given by the assured. And the contract to that effect should be plain and conclusive.

The ruling at circuit was right; the exceptions should be overruled, with costs, and judgment should be entered aecordingly.

Van Brunt, P. J., and Daniels, J., concurred.

Exceptions overruled, with costs, and judgment entered accordingly.


author: Daniels, J.: •

text:
    In the Matter of the Application of THOMAS COMMERFORD MARTIN, Respondent, for a Peremptory Writ of Mandamus Against the W. J. JOHNSTON COMPANY (Limited), Appellant.

      Corporations — rights of stockholders to examine and. take extracts from books — a denial that the applicant is a stockholder must be positive — Laics of 1875, chap. 611, secs. 16, 17.
    A stockholder of a corporation, organized under chapter 611 of the Laws of 1875, entitled “An act to provide for tlie organization and regulation of certain business corporations,” has a right, under sections 16 and 17 of the act, to inspect the books of account and tlie book required to be kept showing the names and shares of stockholders in such a corporation, and to make extracts therefrom.
    Where a corporation seeks to prevent such an examination by denying that the applicant is a stockholder, such a denial must be positive, and not evasive. The fact that the applicant made his demand upon the treasurer, when the by-laws ’ of the corporation put the book in the custody of the secretary, is not a ground for refusing relief where the treasurer did not put his refusal upon that ground or refer the applicant to any other person as the proper custodian of the book.
    Appeal by tlie W. J. Johnston Company (Limited) from an order, entered in the office of the clerk of the city and county of New York on the 10th day of October, 1891, granting the motion of Thomas Commerford Martin that he be allowed to examine and inspect and take extracts from the records and books of account of the said W. J. Johnston Company (Limited), and the books kept by said corporation containing the names of all persons who are, or since the incorporation of the said corporation have been, stockholders of such corporation, and showing their places of residence, the number of shares of stock held by them, respectively, and the time when they, respectively, became owners of such shares and the amount actually paid thereon. The order directed “ that the application be, and the same hereby is granted, and that said peremptory writ of mandamus issue out of and under the seal of this court, in accordance with the said motion, directed to the above-named W. J. Johnston Company (Limited).”
    The denial of the ownership by Martin of shares in the company was contained in an affidavit of John II. Johnston, a director of said company, and was as follows:
    He is advised by his counsel, and he charges the fact to be, that the said Thomas Commerford Martin is not the holder or owner of over fifteen shares of the capital stock of said corporation, or the holder or owner of any shares of such capital stock; admitting, however, as is alleged in the affidavit of Thomas Commerford Martin, or as may be purported to be alleged, that the said Martin is the holder of a certificate for over fifteen shares of said capital stock, namely, of a certificate for twenty shares; averring in this behalf, however, that the said Martin is not entitled to the possession of the said certificate of stock.

      Robert G. Ingersoll and Mason F. Prosser, for the W. J. Johnston & Co., appellant.

      Arthur II. Hasten, for the respondent.
   Daniels, J.: •

"When this appeal was before a preceding General Term of this court it was directed to be dismissed, because the company had complied with the requirements contained in the writ. But on a further appeal to the Court of Appeals that dismissal was reversed, and a hearing of the merits of the proceeding was directed to take place, for the reason that fifty dollars costs had been recovered against the company; and pursuant to that direction the case has again been brought to a hearing upon the appeal.

In support of the application the applicant, Martin, has sworn that he became and was the owner of over fifteen shares of the capital stock of the company, and that on the 12th of September, 1890, he had made a demand to be allowed to examine the stock-subscription book, and the records and books of account of the company. This demand is stated to have been made upon the treasurer during the usual business hours, and not upon a Sunday or a legal holiday, and that the treasurer refused to comply with the demand, or to permit the applicant to examine the books or records, or any or either of them. And further statements are contained in the affidavit which it is not strictly important for the disposition of the appeal to examine. In opposition to the application an affidavit was made by John II. Johnston, who was a director of the company, in which he stated that he was advised by his counsel, and charged the fact to be, that the applicant was not the owner or holder of these shares of the capital stock of the company, or of any such shares, at the same time admitting, however, that he held a certificate for over fifteen shares of the stock, but averring that Martin was not entitled to the possession of that certificate. He also admitted that the demand mentioned in the applicant’s affidavit had been made upon the treasurer, who refused to comply with it or permit the applicant to examine the books. And this has been relied upon as so far controverting the statement of the applicant that he was the owner of these shares as to put it in issue in such a manner as to require a trial of such issue to ascertain the truth of the facts in this manner referred to. Reliance has also been placed in the affidavit upon the by-law directing that the certificate-book, transfer-book and such other books and papers as the board should direct, should be in charge of the secretary, and that no application had been made to him for the examination of these books. But in the refusal which the.treasurer made there was no allusion to his inability, if that existed, to comply with the demand, and no reference made to the fact that any other person was the proper officer to receive and act upon the demand. Neither does it appear in any form that the books did not remain under the control of the treasurer. The proceeding, therefore, so far as it has in this manner been shown, seems to have been regular; especially as the books were under the control of the directors of the company, and the treasurer was necessarily one of those directors.

In the affidavit of Mr. Johnston there was no denial of the statement made by Martin that he was the owner of these shares of the capital stock of the company. The most that was said was that the counsel of Mr. Johnston had advised him that th'e applicant was not the owner of these shares, which was no evidence whatever in the way of controverting the applicant’s positive affidavit that he was such owner. Neither was it stated, as a matter of fact, that the certificate for the shares, which was admitted to be in the possession of Mr. Martin, was not his property. The statements made were peculiar in the language which was used, indicating the disposition to be to avoid anything like a positive denial of the statements of the applicant, but at the same time endeavoring to evade the grounds of the application. And these statements, therefore, in no manner controverted or put in issue the essential facts relied upon to support the application. The case is entirely different from those which have been referred to in which the denial was held to be operative, for in them it was direct and positive, and controverted the material facts upon which Ihe application had been made to rest. This was the nature of the affidavit used to oppose the motion in People ex rel. McMackin v. Board of Police (46 Hun, 296), and People ex rel. P. C. Savings Bank v. Cromwell (102 N. Y., 477). Mr. Johnston’s affidavit was more in the nature of the statements held to be inoperative by way of the creation of an issue in People ex rel. Kelly v. Common Council of Brooklyn (77 N. Y., 503); People ex rel. Anibal v. Supervisors, etc. (25 N. Y. St. Rep., 737); Sullivan v. Gilroy (55 Hun, 285) and Kelsey v. Pfaudler, etc., Company (3 N. Y. Supp., 723). There was, therefore, no such denial of the facts that the applicant was the owner of these shares, and liad become entitled to an inspection and examination of the books of tbe company, which had been denied him, as is sufficient to defeat this application.

By section 17 of chapter 611 of the Laws of 1876, it has been made the duty of the directors of the company to cause a book to be kept by the treasurer or clerk thereof, containing the names of all persons, alphabetically arranged, who are, or shall within six years have been, stockholders of such corporation. And this book, during the usual business hours of the day, on every day except Sunday and legal holidays, it has been directed shall be open for the inspection of stockholders and creditors of the corporation and their personal representatives, at the principal business office of the corporation, and any and every such stockholder, creditor or representative shall have the right to make extracts from such book. So far, certainly, the applicant established his right to the writ which the order directed to be issued. But it has been contended, on behalf of the company, that this order was broader than the applicant was entitled to have it, for the reason that the preceding section of the same act requiring the corporation to keep at its principal office or place of business, correct books of account of all its business and transactions and declaring that every stockholder in the corporation should have the right at all reasonable times, by himself or his attorney, to examine the records and books of account of the company, has not permitted, in express language, that the person making the examination may take extracts from the books, as that has been directed by this writ. But what the section has provided for is an unrestricted examination of the books by the stockholder, or his attorney, and that would seem to necessarily include the right to obtain extracts from the books. For an extended examination, as that may very well be, which the stockholder under this authority is entitled to make, would be fruitless without the right to make memoranda or extracts that might afterwards be useful to the person in whose behalf the examination should be made. And that this construction should be placed upon the statute, although it has not in language, as the next section has, provided that the person making the examination shall have the right to make extracts from the book, appears to necessarily follow from the general right to examine the hooks secured by the sixteenth section of the act. And that the statute containing provisions for this general authority should be so construed appears to be sustained by Cotheal v. Brouwer (1 Seld., 562). As the case has now been brought before the court, the right of the applicant to make this inspection and examination and to take extracts or memoranda from the books, has been sufficiently sustained to maintain the order directing the issuing of this writ, and it should, therefore, be affirmed, with ten dollars costs and the disbursements.

Yan Brunt, P. J., and Ingraham, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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

text:
    MARY A. MANLEY, Respondent, v. FRANCIS H. LEGGETT and Others, Appellants.

      Nuisance — obstruction of a street by a line of wagons used in a neighbor’s business— injunction to prevent it.

    One Manley owned premises upon a business street in New York city, a few doors beyond which were the premises of a firm occupying a large mercantile house; .•a delay in the delivering of goods to which latter premises caused a line of trucks .and wagons to form in the street which extended in front of and prevented free access to the premises of Manley.

      Held, that Manley was entitled to access to her premises, and could not be deprived of it upon the plea that the firm were only using the street to receive or send out goods.
    That if goods came faster than the staff of employees in the mercantile house could dispose of them, then it was the duty of the firm to employ more men.
    Appeal by tlie defendants, Francis H. Leggett, Albert H. Jones and Lewis Wallace, from an order of the Special Term, entered'in the office of the clerk of the city and county of New York on the 15th day of June, 1891, restraining the defendants from occupying certain sidewalks on West Broadway and Franklin street, in front of their premises, at the north-west corner of West Broadway and Franklin street, in the city of New York, or permitting the same to be occupied by trucks, vehicles or bridges, and also from occupying the roadway, in front of plaintiff’s premises, by trucks or vehicles, and from allowing them to stand in front of plaintiff’s premises.

      The affidavits read upon the motion for an injunction tended to show that the defendants carried on an extensive business upon the same street upon which the plaintiff’s premises were situated, and at a distance of fifty-five feet therefrom; that the sidewalks were much obstructed by trucks and vehicles and the ordinary devices used for loading and unloading goods used in the defendants’ business; that there was delay in the delivery of freight to the defendants, and that trucks waiting their turn formed a line which extended beyond plaintiff’s premises and prevented the access to them of trucks used by her tenants.

      Noah Davis, for the appellants.

      Nelson 8. Spencer, for the respondent.
   Barrett, J.:.

No point was made upon the argument of this appeal as to the propriety of the injunction so far as it restrains the unlawful use of the sidewalk in front of the defendants’ premises. The appellants’ argument was confined to criticism of that part of the injunction which restrains the defendants from occupying the road-way in front of the plaintiff’s premises. We think the appellants’ contention on this head is well founded, and that the injunction with regard to the road-way should be modified. The plaintiff has in this particular failed to make out a case for an injunction pendente lite within the principles enunciated in Callanan v. Gilman (107 N. Y., 360), and the cases there cited.

After reading the affidavits upon both sides it is impossible to say that the plaintiff has clearly established such a continuous and extensive use of the load-way in front of the plaintiff’s premises as to constitute a nuisance. Temporary use of the road-way, there as elsewhere, is inevitable, and the question is, was the actual use, under the circumstances, excessive and unreasonable ? That question is so doubtful, upon the papers, as matter of fact, that the plaintiff should have been remitted for its solution to a trial at Special Term.

A point is made that the injunction was irregular in not requiring an undertaking as prescribed by section 620 of the Code. We have no means of knowing whether this point is well taken as matter of fact. There is nothing in the Code which requires the direction as to the undertaking to be embodied in the injunction order. For aught that appears upon this record, a proper undertaking was duly given. But even if failure upon that head affirmatively appeared upon the record, the irregularity could be cured mmo pro ;Piona, and even the General Term could provide for the giving of such security upon terms. (N. Y. Attrition Pulverizer Co. v. Van Tuyl, 2 Hun, 373 ; Pratt v. Underwood 4 N. Y. Civ. Pro. Rep., 167.)

The order appealed from should be modified by striking out so much of the injunction as relates to the road-way in front of the plaintiffs premises, and, as modified, affirmed, without costs of this appeal.

Van Brunt, P. J.:

I concur. But I do not think that the plaintiff may not be entitled to relief because of the improper use of the road way by the ' defendant. The plaintiff is entitled to access to her premises, and the defendants cannot be permitted to deprive her of that access under the plea that they are only using the street to receive goods sent or coming to their store. If the goods come faster than their staff of employees can receive them, they must employ a larger staff so that the plaintiff is not interfered with unreasonably in her tenants access to her premises.

. Andrews, J., concurred.

Order modified as directed by opinion, and, as modified, affirmed, without costs of this appeal.


author: Daniels, J. : Ingraham, J.:

text:
    EDWARD O. BABCOCK, Respondent, v. MILLARD R. JONES and Another, Appellants.

      fraudulent conveyances — when a fraudulent intent vitiates a conveyance made by a debtor to one to whom Tie is aatxially ind,ébíed — husband and wife — injunction.
    One J ones being indebted to creditors, who were about to recover judgments against him, transferred to his wife, to whom he was also indebted, all his available property, including office furniture and personal jewelry, the value of which' was not, however, equal to his indebtedness to her.
    In an action brought by a judgment-creditor to set aside such transfer, the court was of opinion that the transfer was made with intent to hinder, delay and defraud the other creditors of Jones.

      Held, that such an intent was to be deduced from a consideration of the circumstances attending the transfer.
    That an injunction was properly granted restraining the defendants in the action, during the pendency thereof, from disposing of-the personal property.
    That, as to the real estate transferred to the wife, the injunction was unnecessary as the creditor had his remedy by filing a notice of pendency of the action.

      Semble, that if made with such an intent the transfer was void, although the husband was indebted to the wife in a larger amount than was represented by the property transferred.
    Appeal by tbe defendants, Millard R. Jones and Clara H. Jones, from so mueb of an order, entered' in tbe office of tbe clerk of tbe city and county of New York on tbe 25th day of June, 1891, as restrained them from disposing of any of tbe property described in the complaint in tbe action.
    The action was a judgment-creditor’s action, brought to set aside ■certain transfers of real and personal property made by Millard R. Jones to bis wife, Clara H. Jones.

      Jerome BugTc, for the appellants.

      WilUam B. Ellison, for the respondent.
   Daniels, J. :

Near tbe time when tbe judgments were recovered against the ■defendant, Millard R. Jones, and apparently in tbe expectation of their early recovery, he conveyed and transferred all bis available property to his wife, Clara H. Jones. These conveyances and transfers were alleged, in support of tbe action, to be fraudulent against tbe plaintiff as a judgment-creditor, whose executions against property upon the judgments had been returned unsatisfied. The facts concerning the disposition of the debtor’s property, indirectly and directly, to his wife are disclosed by his examination in supplementary proceedings, and also by his affidavit and the affidavit of his wife used in resisting the motion to continue the injunction; and while they prove the fact to be that he, as the guardian of his wife, had become liable to her for a much larger amount than the value of all the property conveyed and transferred to her, there is still evidence tending to establish the conclusion that the property, in part at least, was conveyed and transferred to her to prevent its appropriation by creditors to the payment of their debts, and that intent, even where there is a corresponding indebtedness intended to be satisfied by the conveyance and transfer of the property, will invalidate, as to creditors, the instruments affected by the intent which may be made and delivered. (Billings v. Russell, 101 N. Y., 226.)

To discover the existence of this unlawful intent, the transactions between the husband and wife are required to be closely watched and clearly scrutinized. (Manchester v. Tibbetts, 121 N. Y., 219-222.) And the facts indicating the existence of such an intention in this instance are that the judgment-debtor intended to transfer and convey to his wife all his available property, which, in part, consisted of his personal jewelry, or ornaments, and his office furniture, which furniture never passed into the possession of his wife. These acts, including the transfer of the jewelry and the office furniture, appear, as the case has been now presented, to have been actuated more by the design to avoid their seizure under execution than to satisfy or extinguish the indebtedness which'existed in favor of his wife from his use and consumption of her property which had been intrusted to him as her guardian.

It is not necessary that this intent to hinder, delay or defraud creditors shall be proved by direct evidence, but it is sufficient that it may be inferred from circumstances tending to establish the correctness of that conclusion; and these circumstances have an unmistakable tendency in that direction, sufficiently so to require the continuance of the injunction so far as it restrains the disposition of the personal property or its proceeds received in this manner by the debtor’s wife.

It is not intended, however, to be held that this evidence will conclusively establish the existence of a fraudulent' intention. All that it is necessary now to hold is that, as the facts have been made to appear, they sufficiently indicate that intention to justify the con- • tinuance of the injunction restraining the disposition of the personal property.

But as to the real estate brought into controversy in the action, the title to which has become vested in the debtor’s wife, the injunction was needless, for there the creditors’ rights are amply provided for by the statute in permitting the complaint to be filed, together with a notice of the pendency of the action, containing a description of the property. So far as the injunction relates to the real estate, it should be modified by vacating that part of it, but as to the personal property, including the proceeds of any property which may have been sold or otherwise converted by the defendant Clara H. Jones, the injunction should be continued, and, as so modified, the order should be affirmed, without costs of this appeal to either party.

Yan Brunt, P. J., concurred in result.

Ingraham, J.:

I concur in the conclusion arrived at by Mr. Justice Daniels on the ground that, under the circumstances disclosed, an injunction to restrain the defendant, Clara H. Jones, from disposing of the personal property received by her from. her husband until the trial of the action, was not an improper exercise cf the discretion of the court at Special Term. I do not wish to be understood, however, as holding that, upon the facts presented, the court should grant a judgment which would direct the application of the property in question-to the payment of the judgment referred to in the complaint.

Order modified as directed by opinion, and, as modified, affirmed, without costs of this appeal to either party.


author: Yan Brunt, F. J.:

text:
    ROBERT HERBST, Appellant, v. LIONEL HAGENAERS, Respondent.

      Arbitration — an awao'd must be definite and cover all matters submitted — Code of Oivil Procedure, sea. 3374.
    On the twenty-ninth, of April, 1891, arbitrators, appointed to determine the interests of the partners in a partnership, met and made an award which provided that one Herbst was to take and receive to his own use all the assets of the firm, and to engage to pay all the liabilities of the firm existing on April eighteenth, and to release one Hagenaers from all responsibility to said firm from that date and pay him a specified sum. Herbst was also to collect all .outstanding accounts. The award further provided that the amount which might be due Hagenaers from the firm on the eighteenth of April, irrespective of the amount of an award thereafter and thereby given, was to be paid him, and that that amount and the award were to be paid to him within ten days.

      Held, that the award was so indefinite that no judgment could be entered upon it. That the arbitrators should have determined definitely what amount was due Hagenaers from the firm on April eighteenth.

      Semble, that when an award is made by arbitrators their powers are exhausted and they have no power to thereafter make a supplemental award.
    Appeal by Robert Herbst, one of tbe parties to an arbitration, from a judgment in arbitration, entered in tbe office of tbe clerk of the city and county of New York on tbe 12th day of June, 1891, in favor of Lionel Hagenaers.
    Also from an order, entered in said clerk’s office on the 10th day of June, 1891, which said order, after reciting the award and. supplemental award of Messrs. O. C. Abel and O. A. Johnson, dated, respectively, April 29, 1891, and May 1, 1891, directed that tbe motion of said Robert Herbst to vacate the said awards of the arbitrators be denied, and that the motion of the said Lionel Hagenaers to confirm said awards be granted, and that said Lionel Hagenaers should have judgment in accordance therewith, together with the sum of twenty-five dollars costs.
    The submission to arbitration was as follows:
    “Whereas the copartnership heretofore existing between Robert Herbst and Lionel Hagenaers, under the firm name of Herbst Brothers, has this day been dissolved by mutiral consent, by the retirement of Lionel Hagenaers from said firm.

      “And, whereas, the interests of the respective parties to said copartnership have not as yet been determined and fixed between them.
    . “ Now, therefore, in consideration of the premises and of the sum of one dollar by each of the parties to the other paid, it is agreed by and between the parties hereto as follows :
    “ The said Robert Herbst and Lionel Hagenaers hereby agree to submit to arbitration the question what their respective interests in the said copartnership of Herbst Brothers are, and also what compensation, if any, either party is entitled to, in consequence of the dissolution of the partnership, and hereby appoint Mr. C. C. Abel and Mr. O. A. Johnson, they to have power to select and appoint an umpire in case they cannot agree amongst themselves, and then the decision of the majority to be considered as final, as arbiters to pass upon the aforesaid question, their judgment, when made, to be final in thé premises and to be filed in the Supreme Court of the State of New York as and for a judgment on the merits of the question in controversy, it being, however, distinctly understood and agreed by and betweeD the parties hereto that the said copartnership of Herbst Brothers had this day been dissolved as aforesaid.
    “ In witness whereof, the said Robert Herbst and Lionel Hagenaers have hereunto set their hands and seals this ■ 18th day of April, 1891.
    “ROBERT HERBST. [seal.]
    “In presence of : “LIONEL HAGENAERS. [seal.]
    Otto C. Wierum, Je.,
    “ as to both.”
    The award on which judgment was entered was as follows:
    “ Decision on arbitration as to the amount due Mr. Lionel Hagenaers from the firm of Herbst Brothers as per dissolution agreement dated April 18, 1891. In connection with the amount herein stated below as awarded to Mr. Lionel Hagenaers, it is understood that Mr. Robert Herbst, representing the firm of Herbst Bros., is to engage himself to pay all accounts and liabilities of the firm existing on April 18, 1891, and to give to Mr. Lionel Hagenaers a formal release from all responsibilities of the firm of Herbst Brothers on and from that date, and Mr. Robert Herbst to collect the firm’s outstanding claims.

      “ The account referred, to in arbitration proceedings as the ‘ Horse Hair Account ’ is to be assumed, carried and settled in the future, as Mr. Robert Herbst may elect and a positive and formal release is to be given Mr. Lionel Hagenaers on this account, relieving him from all responsibilities whatsoever in and to, and on said account. The amount which may be due Mr. Lionel Hagenaers from the firm of Herbst Brothers, under date of April 18, 1891, irrespective of the amount of this award herein below stated is to be paid to him in excess of the amount of this award. This said amount in excess of the award and also including the amount of the award, both of which amounts are to be paid to Mr. Lionel Hagenaers in cash within ten days from this date.
    “ Mr. Robert Herbst may continue the business under firm name, and all the firm’s books, papers, &c., remain his property, as provided by the copartnership agreement.
    “ The amount referred to above as agreed to be awarded to Mr. Lionel Hagenaers and to be paid to him by Mr. Robert Herbst, representing the firm of Herbst Brothers, is six thousand three hundred and thirty-six dollars ($6,336), which does not include the amount due Mr. Lionel Hagenaers on the books of the firm on April 18, 1891, and which latter amount is also to be settled as above referred to.
    “New York, April 29, 1891. “C. O. ABEL,
    “0. A. JOHNSON,
    Arbitrators.”
    The arbitrators also made a supplemental award as follows:
    ‘' In the Matter op
    The Arbitration in Dissolution op
    the Firm op Herbst Brothers.
    “New York, May 6, 1891.
    “ To whom it may concern :

      “ At the request of the parties in interest of the firm of Herbst Brothers, as to any further action in determining their interest in said firm from January 1, ’91, to the dissolution of the copartnership April 18, ’91, we hereby give the supplementary award which we had considered as well understood in our previous decision as rendered nndef date of April twenty-ninth. First. The traveling expenses in dispute are to remain as a charge against the firm.
    “ Our supplementary award (on basis of estimated profits of the copartnership np to Dec. 31, ’90) we calculated the proportion from Jan. 1, ’91 to April 18, ’91 (the date of. dissolution of the firm) to be $5,567.00, on which amount the five per cent due Mr. Lionel Uagenaers is $278.35. This amount, namely, $278.35, and also the amount of the balance of account due him on the books on April 18, ’91, as per copartnership agreement dated April 16, 1888, is to be paid him in cash, together with the amount of our previous award of $6,336.00 on May 9th, 1891.
    “O. C. ABEL,
    “ O. A. JOHNSON,
    “Acknowledged to before me ) “Arbitrators.
    this 6th day of May, 1891. f
    “ Michael J. McCarty,
    “ Notary Public, Ki/ngs Co?

      W. N. Cohen, for the appellant.

      L. W. Russell, for the respondent.
   Yan Brunt, F. J.:

Prior to April, 1891, the parties to this motion had been copartners, and on the eighteenth of April said partnership was, by mutual consent, dissolved, and the parties agreed to submit to arbitration the question as to what their respective interests in said copartnership were, and also what compensation, if any, either party was entitled to in consequence of the dissolution of the partnership, and Mr. O. C. Abell and Mr. O. A. Johnson were appointed arbitrators; and by the agreement it was provided that the judgment to be entered upon their award should be final in the premises; and that it should be filed in the Supreme Court as for a judgment on the merits of the question in controversy. .

The arbitrators met and heard the proofs, and on the 29th of April, 1891, made an award by which it was provided that the appellant Herbst was to engage to pay all the liabilities of the firm existing on the 18th of April, 1891, and to release the respondent Hagenaers from all responsibility to said firm on and from that date, and that the appellant was to collect the firm’s outstanding accounts. The award further provided that the amount which might be due the respondent from the firm on the 18th of April, 1891, irrespective of the amount of the award thereafter given, was to be paid to him in excess of the amount of the award, which amount and the award was to be paid in cash within ten days. The appellant was to continue the business in the firm name, and the firm’s books and papers were to remain his property as provided by the copartnership agreement ; and the sum of $6,336 was awarded to the respondent, which did not include the amount due to the respondent on the books of the firm on the 18th of April, 1891.

On the 6th of May, 1891, the arbitrators reconvened and made a supplemental award. Motions were thereupon made to vacate the awards upon various grounds and also a motion to confirm the same. The motion to vacate was denied, and the motion to confirm granted and judgment was entered upon the original award, irrespective of the supplemental award, and from, the order denying the motion to vacate said judgment this appeal is taken.

The grounds upon which it is sought to vacate were — first, that the arbitrators illegally refused to hear proper and legal testimony; that they are chargeable with gross partiality and misconduct; that they exceeded their powers; that the award is not certain, final and conclusive; that the pretended supplemental award is unauthorized and void; and even were the supplemental award valid, the entire award is so grossly excessive as to be fraudulent in law, and another ground which it is not necessary here to state.

No action having been taken upon the supplemental award, and no judgment entered hereon, it is not necessary to discuss the question as to the right of the arbitrators to make such award.

The claim that the arbitrators illegally refused to hear evidence is not sustained by the record. It is true that the appellant, by his affidavit, claims that the arbitrators infused to hear evidence which he offered. But it is to be observed that his affidavit is somewhat indefinite in this particular, and it is denied, both by one of the arbitrators and by the respondent, that he ever offered to produce such evidence or' testimony; and it is denied by the arbitrator that the letter of the appellant offering to produce testimony was ever received by him. There is, therefore, no ground made out upon the papers for vacating the award for this reason.

The charge of gross partiality and misconduct is not made out. It is claimed upon the part of the appellant that one of the arbitrators was under the domination of the other, but there is no evidence of that kind. Neither is there any evidence that the arbitrators exceeded their powers. Neither is the claim that the refusal to allow the appellant’s stenographer to take a record of the proceedings well taken. It would certainly be rather remarkable if the record of a proceeding, semi-judicial in its nature, was to be kept by the employee of one of the parties. But that the award is not certain, final and conclusive seems to be established upon its face. •

It is provided by section 2374 of the Code that in certain cases the court specified in the submission must make an order vacating the award; and amongst others where the arbitrators exceeded their powers or so imperfectedly executed them that a mutual, final and definite award upon the subject-matter submitted has not been made. Now, the question submitted to the arbitrators in this case was the question what the respective interests of the copartners in said copartnership were, and, also, what compensation, if any, either party was entitled to in consequence of the dissolution of the partnership ; and it was provided that a judgment might be entered upon this award. Therefore, there was nothing to be left undetermined or indefinite, so that it might not be executed as a judgment of the court.

¥e find that in the award a definite sum is awarded to the respondent, and an indefinite sum, namely, the sum which might be due to the respondent on the 18th of April, 1891, from the firm, of which he was a member, irrespective of the amount which had been awarded. This is clearly so indefinite that no judgment whatever could be entered upon the same. The submission was that they should determine the respective interests of the partners in the firm, and what compensation, if any,, either party was entitled to in consequence of the dissolution. The arbitration was intended to wind up the afiairs of the concern and to settle the rights of the parties, and determine what amount of money the respondent should receive from the appellant upon this dissolution.

The award left the whole question open by providing that what was due from the firm to the respondent on the 18th of April, 1891, should be paid to him, without fixing any amount. This was attempted to be done by the supplemental award.' But, as already suggested, no judgment having been entered upon the supplemental award, it is not necessary to consider it here, although it would seem that, by the making of the first, award, the office of the arbitrators ceased.

The award not having been final and definite upon the subject-matter submitted, the court was bound to set it aside as an imperfect and incomplete adjudication.

We think, therefore, for these reasons, that the mofion to vacate the award should have been granted.

The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate granted.

Barrett and Andrews, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and the motion to vacate granted.


author: Yan Brunt, P. J.: .Barrett, J.:

text:
    FRANK B. GENIN, Appellant, v. SAMUEL K. SCHWENK, Respondent.

      Practice — order of arrest — fid/ucia/ry capacity — what the complaint must state — a complaint in the alternative is'had.

    Where a plaintiff seeks an order of arrest, upon the ground that the defendant has received money in a fiduciary capacity, his complaint must state that fact distinctly, and it is not sufficient that from the complaint it may reasonably be inferred that a fiduciary relation has existed. (Barrett, J., dissenting.)
    Where it was impossible, from the allegations of a complaint, to determine whether the action was brought to recover the proceeds of certain notes or damages for their conversion, the complaint alleging in one clause that the defendant had parted with the notes for his own benefit, and in another clause that he still retained them, it was

      Held, that such allegations in the alternative would not support an order of arrest.
    Appeal by tbe plaintiff Frank B. Genin from an order made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 25th day of June, 1891, vacating an order of arrest theretofore granted against the defendant.

      D. E. Anthony, for the appellant.

      S. Keeler, for the respondent.
   Yan Brunt, P. J.:

An order of arrest having been granted in this action upon the ground of wrongful conversion of personal property and damages for the misapplication thereof, aud that the same had been received by the defendant as a factor or agent in a fiduciary capacity, a motion was made to vacate the said order upon the complaint, affidavit and papers upon which the same was granted. The ground, apparently, upon which said motion was founded was that the complaint did not explicitly aver that the defendant was sought to be charged as having received the money in a fiduciary capacity.

It has already been held by this court, in the case of Hillis v. Bleckert (53 Hun, 499) and Bartlett v. Sutorious (32 N. Y. State Rep., 1127), that a statement of facts and circumstances which might justify the legal conclusion of money received in a fiduciary capacity does not comply with the statutes, inasmuch as it requires such an allegation to be made in the complaint, and declares that the plaintiff cannot recover unless he proves the same on the trial.

In other words, it is the intention of the Code that the plaintiff, in order to exercise the right of arrest, shall state distinctly that he seeks to charge the defendant because of the fiduciary relation and because of that only, and it is not sufficient that, from the facts stated in the complaint, the fiduciary relation may reasonably be inferred. The defendant is entitled to know when suit is brought against him whether the plaintiff seeks to charge him because of the fiduciary relation or simply to recover as for a debt. In the'one case he might be called upon to defend; in the other he might have no defense.

If this is not so, then the plaintiff may declare in a manner from which either the fiduciary relation might be reasonably inferred, or that he seeks to recover simply for the debt, and the defendant would be unable to ascertain which claim the plaintiff will make, until the cause came to trial, and thus be put to the expense of appearing and preparing for trial, and when the case.came on for trial, he being prepared to rebut the inference of a fiduciary relation, the plaintiff might say,“I do not intend to recover because of such relation.”

The amendment of the Code of 1886 intended to make the fiduciary relationship an issuable fact to be tried by a jury, and in those cases one of the essential facts to be established; because, it says, where such allegation is made the plaintiff cannot recover unless he proves the same upon the trial, and a judgment for the defendant is not a bar to a new action to recover the money or chattel.

Now, it is clear from this language that the claim to recover because of the fiduciary relation must be distinctly stated, and not merely result from inference; and that the complaint can bear but one construction, so that no recovery can be had upon it, unless the fiduciary relation is established.

But in the case at bar there is another objection which is fatal to the maintenance of the order of arrest. The complaint alleges that the plaintiff, being desirous of securing for his use the sum of $2,850, less bank discount thereon, made and executed a stock note for the amount, which he delivered to the defendant, he representing that he could secure the discount of the note and would turn over the proceeds thereof to the plaintiff; that a few days thereafter the defendant brought to the plaintiff two promissory notes of one Holly, in the aggregate of the same amount as the note made by the plaintiff, and represented to the plaintiff that he had obtained said notes of Holly in exchange for the notes of the plaintiff, and that he would secure and obtain the discount of Holly’s notes, whereupon the plaintiff indorsed the notes and delivered them to the defendant for the purpose of having them discounted.

The complaint then alleges: “ That, as is herein alleged upon information and belief, shortly after said sixth day of June the defendant did discount' said notes, or parted with their possession, for his own use and benefit, and without the consent of this plaintiff, and has since retained, and still retains, said notes or others of like amount in the aggregate, made by the same maker, as renewals thereof, or the proceeds realized by said defendant from the discount of said notes, and has converted the amount of said notes, less the bank discount upon the same, to his own use and benefit, excepting only the sum of $901, which was paid to this plaintiff by said defendant between the 11th day of June, 1890, and the 80th day of January, 1891, which said sum of $901 was paid by the defendant to this plaintiff as a pretended loan or advance, and upon the representation that the said defendant had not yet been able to discount the said Holly notes.”

The complaint then alleges: That plaintiff has duly and frequently demanded of the defendant the delivery to him of said Holly notes, or the renewal notes given in the place thereof, or the proceeds realized upon the discount of said notes or renewal notes; but the defendant has failed and neglected, and still fails and neglects, to deliver said notes or the proceeds thereof to this plaintiff, and still retains them for his own use and benefit to the damage of this plaintiff,” etc.

It is clear that the plaintiff had no right to demand the notes until he paid him the $901 received by him. Therefore no action would lie for the conversion of the notes themselves; and it is impossible to tell from the allegations in this complaint whether the action is brought to recover the proceeds received by the deféndant upon the discount of the notes or for the conversion of the notes themselves, because the allegations are absolutely inconsistent with each other, alleging in one clause that he had parted with tire notes, and in the next that he has them in lps possession.

A complaint in this form cannot support any provisional remedy. If the plaintiff claims to recover upon the ground of the conversion of the notes themselves because of the refusal to deliver upon demand, the action cannot be maintained because there is no allegation of the tender of the $901 received, for the payment of which the defendant had the right to hold the notes.

"We think, therefore, that the order of arrest was properly vacated, and that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurred.

.Barrett, J.:

I dissent from the proposition that it was necessary to characterize the defendant’s relation to the plaintiff in the formal words of the Code. The complaint clearly showed such relation; and upon the facts stated the notes or their proceeds were fraudulently misapplied by the defendant while acting in a strictly fiduciary capacity. It is not a case of reasonable inference on that head, but of absolute certainty. It was not a ease of a business agency, but of a single and special transaction where the defendant was to do just one thing for the plaintiff, and where, in doing that one thing, he necessarily acted in a fiduciary capacity.

I dissent, also, from the proposition that it was necessary to repay the $901 before the plaintiff had a right to demand the Holly notes. It is alleged that the payment of this sum was really on account of the notes, although the pretense of a loan or advance was put forward. If the defendant had the plaintiff’s money in his hands and turned over part of it, the plaintiff had a perfect right to sue for the balance. He surely cannot be required to return his own money, which was part of the sum fraudulently converted, as a prerequisite to suing for the balance. But I concur in the result, for the reason that the complaint is improperly in the alternative, and that it is impossible, as it reads, to frame such a distinct issue as is contemplated by subdivision 2 of section 549 of the Code. The plaintiff cannot state that the defendant parted with the notes for his own benefit, and, in the same sentence, aver that the defendant still retains, the notes. Still less can he allege, in an alternative sequence, that the defendant yet retains the notes or renewals thereof, or the proceeds realized from, the discount of the notes. Under this subdivision of section 549 the defendant can only be arrested where the action is brought to recover for money received in a fiduciary capacity, or to recover property or damages for the conversion or misapplication of property by some person in such fiduciary capacity. And it must be alleged in the complaint that the money was received or the property embezzled or fraudulently misapplied by such person in a fiduciary capacity. The issue to be thus tendered must be clear and precise. Here it is impossible to tell whether the plaintiff is suing for the conversion of the •original Holly notes, or for the conversion of the renewals, or for the proceeds of the original notes, or for the proceeds of the renewals. "We cannot say, therefore, whether the action is for money received in a fiduciary capacity or for property fraudulently misapplied. Considering the provision that the plaintiff cannot recover upon the trial unless he proves the allegation of his complaint on this head, it is perfectly evident that an order of arrest should only be granted in such a case where a single cause of action, embracing some one ground specified in the section, is clearly and definitely stated.

The order should, therefore, be affirmed, with costs.

Order affirmed, with ten dollars costs and disbursements.


author: Dwight, P. J. : Macomber, J.

text:
    GEORGE D. BOWN, Respondent, v. A. FRANK WEPPNER and Another, Appellants, Impleaded with Another, Defendant.

      Replevin — sureties — when they are exonerated by the failure of the defendant to demand a return of the property — Oode of Givil Procedure, secs. 1730,2930, 2931.
    One A. Frank Weppner brought an action against George D. Bown, in the Municipal Court of Rochester, to replevy property, in which action the alleged cause of detention was stated to he that Bown claimed the property as the assignee of one Miirdoff. Bown, who did not demand a return of the property, answered denying any title in himself, and alleging that any title in him, as assignee of one Murdoff, was subject to a levy by the sheriff of the county. Weppner, believing that the sheriff had made a valid levy, discontinued the action and the complaint was dismissed.
    In an action brought by Bown against the sureties upon the undertaking given in the replevin proceedings:

      Held, that he could not recover.
    That, by the terms of the undertaking the sureties were only bound for the return of the property to Bown, in case the possession'should be adjudged to him; and that as he had failed to demand this relief in his answer it could not be thus adjudged.
    That the clause in the undertaking as to the liability of the sureties, in case the action should abate or be discontinued before the property should be returned to the defendant, referred to such a determination of the action before a return of the property, pursuant to a requirement during the action, under section 2925 of the Code of Civil Procedure, or pursuant to a judgment awarding the defendant possession. (Macomber, J., dissenting.)

      Appeal by the defendants, A. Frank Weppner and Patrick Fahy, •from a judgment of the Supreme Court, entered in the office of the clerk of the county of Monroe on the 27th day of February, 1891, in favor of the plaintiff for ninety-two dollars and eighteen cents, after a trial before a referee.

      G. D. Reed, for the appellants.

      G. F. ParTcer, for the respondent.
   Dwight, P. J. :

The action was against the sureties on the undertaking of the plaintiff in an action of replevin brought by one A. Frank Weppner, against the plaintiff in this action, in the Municipal Court of Rochester, to recover four tierces of lard. The complaint in that action alleged ownership of the property in the plaintiff, possession by the defendant, demand for and refusal to deliver the same, and that the defendant had wrongfully converted the same to his own use, and contained the usual demand for judgment. The plaintiff also duly procured the requisition of the Municipal Court, and caused the property to be replevined and delivered to him. The affidavit upon which the requisition was issued stated the alleged cause of the detention of the property by the defendant to be that he claimed to hold it as the assignee of one Murdoff. The defendant did not require the return of the property to him. His answer, which was verified by himself, denied the complaint “ in each and every particular,” alleged that the property was in the custody of the sheriff of Monroe county by virtue of the levy of an execution; “ that the sheriff of the county of Monroe should be the party defendant in this action in the place of this defendant; that all rights or claims of this defendant, as the assignee of the A. F. Murdoff mentioned in the complaint, are subject to the levy of the said sheriff, * * * and this defendant ought not to be sued on account of any or all allegations set forth in the complaint.” The answer made no allegation of ownership or right of possession of'the property in the defendant, and, by its general denial, denied that it was in his possession; and it asked for a dismissal of the complaint, but did not demand judgment for the return of the property to him.

Such being the state of the pleadings and of the proceedings in the action of replevin, the plaintiff therein on the adjourned day went into court and withdrew or discontinued the action “by reason,” as the referee finds, “ of the allegation in said answer of said Bown, alleging a valid levy by the sheriff upon said lard, and believing that he had brought said action against the wrong party 5 ” ■and the court thereupon entered a judgment of dismissal of the ■complaint.

We are of the opinion that upon these facts this action ought not to have been maintained against the defendants. They were sureties, merely, and were bound only according to the terms of their undertaking, viz., for the prosecution of the action, and for the return of the property to the defendant in case the possession thereof should be adjudged to him, or in case the action should abate or be discontinued before the property should be so returned. The action was prosecuted to final judgment, and that judgment was in favor of the defendant -for the only relief to which, under his answer, he was entitled. He could not have judgment awarding possession of the property to him because he had not demanded such judgment by his answer. And this not merely upon the general principle that a man will not be granted judgment for more than he asks, but because, by the statute, such a demand in the answer in a case like this is necessary to give jurisdiction to the justice to render such a judgment. (Code of Civ. Pro., §§ 1730, 2930, 2931.) The suggestion -that the defendant might, perhaps, in the further 'progress of the action, have obtained leave to amend his answer in this respect, does not meet the difficulty. The liability of these sureties must be determined upon the case^ as it actually stood, and not as it might have been made, and no presumption will be entertained that the defendant would have asked leave to interpose the demand in question if the action had not been discontinued. The relief actually demanded by the answer was -in accordance with the whole tenor of that pleading, which, in effect, disclaimed any right in the defendant to the possession of the property.

The reference in the prescribed alternative condition of the undertaking, to an abatement or discontinuance of the action before the return of the property, is, of course, to such a determination of the action before a return of the property in response.either to the requirement of the defendant pending the action (Code, § 2925), or in pursuance of a judgment which awards the possession to him. In this case the defendant has not made such requirement pending the action, nor by Iris answer entitled himself to such a judgment.

Upon the case presented here, we are of opinion that no breach of the conditions of the undertaking of the sureties, defendants in this action, has been established, and that the motion for a nonsuit should have been granted.

The judgment must be reversed and a new trial granted.

Lewis, J., concurred.

Macomber, J.

(dissenting):

The condition of the undertaking sued on was as follows: “ For the prosecution of the above-entitled action, for the return of said chattels to the above-named defendant, if possession thereof is adjudged to him, or if the action abates or is discontinued before the said chattels are returned to said defendant, and for the payment to the said defendant of any sum which the said judgment awards to him against the said plaintiff.” This condition was in conformity to sections 1699 and 2920 of the Code of Civil Procedure The answer, besides the defenses named in the prevailing opinion contained a general prayer for relief.

I think the plaintiff in the action in the Municipal Court, A. Frank Weppuer, had no more right to discontinue that action after the defendant therein (the plaintiff in this action) had put in his answer, and then claim as a result thereof that the undertaking went for naught, than he would have had before any answer was served. Moreover, under the prayer for further and general relief which that answer contained, we have a right to assume, had any question of this kind been raised in the Municipal Court, as it should have been raised there, if at all, that an amendment would have been ordered as a matter of course. I agree with the learned referee, that to hold otherwise would establish a dangerous precedent in Courts of Justices of the Peace, where pleadings are generally informal, and where amendments are liberally allowed in furtherance of justice, not only in those courts, but by the appellate courts on appeal. (Code of Civ. Pro., §§ 2944, 3063.)

Judgment appealed from reversed and a new trial granted, with costs to abide the event.


author: Dwight, P. J.:

text:
    ALMIRA ROWLAND, Appellant, v. LEONIDAS D. WEST, Respondent.

      Moltures — a mortgage of chattels and a mortgage of the realty on which they aire— when the filing of a chattel mortgage is notice — wrongful conversion.

    One Wainwriglit had put into his frame saw-mill an engine and boiler. At this time there were lying in the woods near by, certain parts of a portable saw-mill, which were easily adjusted. On August sixth Wainwriglit gave a chattel mortgage upon them to the assignor of one West. This was filed the next day. On August thirtieth, and while the chattels still laid in the woods, Wainwriglit gave to one Rowland, who was notified of the existence of the chattel mortgage, a real estate mortgage,'which included the chattels in question.
    In an action brought by Rowland against West to recover the damages resulting from his taking the chattels under his chattel mortgage:

      Meld, that Rowland could not recover.
    That the fact that the articles were chattels when the real estate mortgage was given; that they were subject to the chattel mortgage; that the latter had been filed, and that Rowland had notice of it, were proper facts for the consideration of the jury.
    That, as Rowland had notice of the chattel mortgage, no agreement with Wainwright could convert the chattels into realty to the prejudice of West.
    That, upon the facts of the case, the filing of the chattel mortgage in the town clerk’s office was notice to Rowland.
    That if the jury believed the testimony given upon the trial, that Rowland knew of the existence of the chattel mortgage, and overcame Wainwright’s scruples, as to including the same chattels in the real estate mortgage, by assuring him that the chattel mortgage should be the prior lien, Rowland was a party to the wrongful conversion of the chattels into realty, and could not take advantage of her own wrong.
    Appeal by tbe plain tiff Almira Rowland from an order, entered in tbe office of the clerk of tbe county of Tates on tbe 3d day of June, 1891, denying her motion for a new trial, after a trial at tbe Tates Circuit before tbe court and a jury, at which a verdict was rendered in favor of tbe defendant.

      M. A. Leary, for tbe appellant.

      M. J. Sunderlin, for tbe respondent.
   Dwight, P. J.:

The • action was for damage to a freehold by severing therefrom certain articles of machinery. Tbe contest is a familiar one, between a mortgagee of the realty and a mortgagee of chattels claimed to have been affixed thereto.

Tbe freehold was a small piece of land, upon which one Wainwright, who was the owner in 1889, built a frame saw-mill set on blocks, into which he put an engine and boiler and some other machinery, and, later, the articles of machinery mentioned in the complaint. These were two circular saws with their frames and the carriage belonging to one of them, a fly-wheel and a piece of rubber belting. They had been formerly used as parts of a portable saw-mill, and at the time when both the mortgages were given were lying in the woods adjacent to the mill. Such being the situation, on the 6th day of August, 1889, Wainwright gave to one Ludlow a chattel mortgage on the articles in question to secure a debt owing to him. The chattel mortgage was duly filed in the town clerk’s office the next day, and was duly assigned, with the notes accompanying it, on the second day of June following,,

On the 30th day of August, 1889, and while the chattels in question still lay in the woods, Wainwright gave to the plaintiff, acting by her husband, to secure a debt owing to her, a mortgage of the real estate, which contained, in addition to a description of the land, the following clause: Together with the mill buildings recently erected on said lands by said party of the first part, and the 'steam boilers and engine, belts, machinery, saws, planes and implements in and about said building, and belonging to or connected with the business carried on therein and thereabouts, all of which, for the purposes of this mortgage, (it) is understood and agreed shall be considered and held as real property and fixtures annexed to the building.” "Wainwright testified that when this mortgage was presented to him to be executed he objected to the clause quoted, giving as a reason that the engine and boiler did not belong to him, and that there was a claim on all the old machinery, which comprised the articles mentioned in the complaint; that this statement was made to the plaintiff’s husband and the attorney employed by the latter to draw the papers, and that he, Wainwright, waived his objection only on the assurance by both of those persons that the execution of the new mortgage would make no difference, and that after the old claim was paid up the new mortgage would be good. This testimony was contradicted by Rowland and by the plaintiff, who testified that she was present a part of the time while the business was being done; but the question was submitted to the jury whether the plaintiff knew, at the time she took her mortgage, that there was a chattel mortgage on this property, and they may be presumed to have given credit to the testimony of Wainwright in this respect.

On default in tlie payment of the notes secured by the chattel mortgage then held by the defendant he demanded his pay or the property, and Wainwright thereupon, two weeks before the plaintiff’s mortgage fell due, took the articles described in the complaint out of the mill and delivered them to the defendant. The plaintiff foreclosed her mortgage when it became due, and became the purchaser on the foreclosure sale; and afterwards brought this action for the injury to the freehold by the removal of the property in question.

In respect to the manner in which that property was attached to the realty the evidence shows that the frames of the two circular saws were fastened to the timbers of the building by screw bolts with burs — that of the slab or cross-cut saw being swung from the timbers overhead; that the carriage of the large circular saw was set (to run back and forth) on a track which lay on. the floor joists; that the fly wheel was an extra one slipped on to the crank shaft by the side of the main fly wheel and held in place by set screws, and the belt was, of course, not fastened to anything except that it passed around a wheel and pulley.

These were the material facts upon which the case was submitted to the jury, with instructions, which, we think, were in all respects in accordance with the law. The three tests, of such an annexation of chattels to the freehold as will have the effect to constitute them a part of the realty, were stated very clearly and in accordance with the doctrine of Voorhees v. McGinnis (48 N. Y., 278) and McRea v. Central National Bank (66 id., 489), chief importance being ascribed, as in those cases, and especially by Rapallo, J., in the latter of them, to the fact of the intention with which the annexation is made. And the jury was instructed that the manner in which the chattels were annexed, though not a controlling circumstance, might furnish some evidence to the minds of the jury upon the question of the intention in respect to its permanency, with which the annexation was made.

But the circumstances peculiar to this case also received proper attention at the hands of the court. The fact that the articles of property in question were chattels when the mortgage to the plaintiff was given; that they were already subject to the chattel mortgage of which the defendant became the assignee; that that mortgage had been duly filed so as to be constructive notice to any person who assumed to deal with that property as chattels, and that there wras evidence which tended to show that the plaintiff had actual notice of the chattel mortgage at the time she took her mortgage — all these facts, or the evidence tending to establish them, received just attention and were submitted to the jury with proper instructions as to their effect upon the rights of the parties if found to be established. We regard those facts as conclusive in support of the verdict actually rendered.

The property was chattels only when the plaintiff took her mortgage. It had never been attached to the freehold in question nor to any other. It could not be converted into realty by simply calling it so, nor by an agreement to consider it such. It might, no doubt, be included as chattels in the real estate mortgage, and those chattels might subsequently be annexed to the freehold so as to become a part of the realty and so enuip to the benefit of the mortgagee, and that even with the effect of depriving the defendant of the benefit of the prior lien of his chattel mortgage, and to remit him to his remedy against the mortgagor for his wrongful conversion of the chattels into realty. (Fryatt v. Sullivan Co., 5 Hill, 116; Voorhees v. McGinnis and McRae v. Central Mat. Bank, supra.) But most clearly this can be done only in favor of one who has no notice, . either actual or constructive, of the prior lien. In the case in 5 Hill, which is the leading one, at least in point, of time, cited in support of the doctrine that a chattel mortgagee may be deprived of the security upon which he has parted with his money in favor of a subsequent lienor, by the wrongful act of the mortgagor in converting the chattels into realty, it was expressly premised that the taker of the mortgage on the real estate had no notice of the chattel mortgage; and that fact is as clearly assumed in the other cases cited.

On the question of notice it is undoubtedly true that, so far as the plaintiff was dealing with real estate in taking her mortgage, she was not affected with notice by the filing of the chattel mortgage. As the court said at the circuit, as a purchaser of real estate she need only to inquire at the county clerk’s office for liens on real estate, and was not required to extend her inquiry to the town clerk’s office in search of chattel mortgages. But the property in question was chattels when it was included in her mortgage, and the town clerk’s office is the repository of liens on property of that character. Hpon the facts in this case the filing of the defendant’s chattel mortgage was notice to the plaintiff that the lien existed. So, too, if the jury believed the testimony of Wainwright, the plaintiff, by her agents, had actual notice of the claim of the chattel mortgagee, and overcame the scruples of her mortgagor only by assuring him that the former mortgage would hold the prior lien. 'If such was the case, the plaintiff was herself a party to the wrongful conversion of the personal property into realty, and cannot have the benefit of her own wrong.

These views, we think, embrace, in principle, all the points raised by the exceptions taken by the plaintiff on the trial and discussed on this appeal. They lead to an affirmance of the order appealed from.

Macombbr and Lewis, JJ., concurred.

Order appealed from denying plaintiff’s motion for a new trial affirmed, with costs, and judgment ordered for the defendant on the verdict.