author: By the Court.—Truax, J. Sedgwick, Ch. J.

text:
    GEORGE V. B. FROST, Appellant v. WILLIAM E. D. STOKES, Respondent. WILLIAM E. D. STOKES, Respondent v. GEORGE V. B. FROST, Appellant.

      Usury—Laws 1882, Ch. 237—Call Loans—Stock Certificates, negotiability of—Demand, when good.

    It was not the intention of the legislature to limit the application of Ch. 237, L. 1882, to call loans upon negotiable instruments only, but said act also applies to like loans upon the securities therein specifically enumerated.
    The mere fact that certificates of stock are deposited with trustees under • certain agreements does not make them non-negotiable, and a demand loan thereon.,of not less than $5,000, the transaction being evidenced by written agreement and accompanied by the delivery to the loaner of the usual power of attorney to transfer the stock, comes under the provisions of the above statute, and the transaction constitutes a valid pledge.
    A demand of repayment accompanied by a valid tender of the collateral security is good, though not made at the place named in the contract between the parties.

      Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 13, 1887.
    Appeal from judgment entered in favor of defendant in the first above entitled action, and from judgment entered in favor of the plaintiff and against the defendant in the second above entitled action.
    The plaintiff in the first action sought to recover for alleged conversion by the defendant of certain shares of stock. The second action was brought to recover for certain advances made by the plaintiff in that action to the defendant.
    Both actions were tried together before the same referee.
    Further facts appear in the opinion.

      Melville Egleston, for appellant:
    I. The whole transaction is usurious and void, and no title was ever acquired by Stokes.
    II. The Kiernan Act, so-called (chap. 237, L. 1882), has no application to the cases at bar. The loan by Stokes to Frost was not made upon any of the classes of securities to which the act alone applied and was limited. The title of the act is as follows: “ An act in relation to advances of money upon warehouse receipts, bills of lading, certificates of stock, certificates of deposit, and other negotiable instruments.” By this the application of the body of the statute must be strictly limited. Brick v. Ganner, 36 Hun, 52, 55. The act clearly applies only to loans upon instruments which were negotiable at the time of the loan, and thus was of no effect as regards the transaction now in question. This view is supported by well-settled rules of statutory construction. Hudson Iron Co. v. Alger, 54 N. Y., 173. Seeking then the legislative intention in the language of the act, we find that both by its title, and in the body of the act, the loans authorized are restricted to certain specified “ and other negotiable instruments.” Wakefield v. Fargo, 90 N. Y, 213; McGaffin v. City of Cohoes, 74 Ib. 387. Now it is true that of all the particular securities specifically mentioned in the title or body of the Kiernan Act, none but bills of exchange (Dos Passos, 502) are by law or statute strictly negotiable. The others, however, all belong to a class akin, and are known as quasi-negotiable instruments. Such instruments pass by endorsement and delivery, and are in common parlance, as in the Kiernan Act, termed “ negotiable.” In construing the act, the principle of “ noseitur a soeiis ” is to be applied to the enumerated and other a negotiable ” securities. Thus it appears that the word “ negotiable ” was used in the act in its popular and generally understood sense, and was not restricted to securities strictly and in law known as negotiable. The Kiernan Act therefore required, by its language, that the securities upon which the advances might be made, should be, at least at the time of the advancements, negotiable in this sense in their character. The usury laws limit with all possible strictness the rate of interest to six per cent, per annum, and the Kiernan Act, in allowing a higher rate, must be rigidly confined to the particular cases enumerated by it as authorizing such rate. Brainard v. Hoppock, 32 N. Y, 571; Mark v. State, 97 Id., 572 ; Livingston v. Harris, 11 Wend., 329 ; Landis v. Landis, 10 Vroom, 274; Ruckman v. Ransom, 6 Ib. 565.
    III. The evident and well understood object of the Legislature in enacting, the Kiernan Law, was to enable those who from the nature of their business or from particular necessity might have occasion to borrow considerable sums for short periods, or “ on call,” to escape the penalty of usury, and the higher rate' of interest which that penalty caused the loaner to demand. To protect both the borrower and lender, the statute explicitly restricted the securities to be loaned upon thereunder to such as are known as “ negotiable,” i. e., such as pass by endorsement or delivery, can be readily tested by some recognized standard of value, and are bought and sold in open market. At the time of the loan 'and when Frost’s stock in the Mutual District Telegraph and Messenger Companies was pledged therefor, Stokes and Hartley were, and from the incorporation of the companies had been, stockholders therein. All the certificates of this stock and all legal title of the stockholders thereto, was from December 14, 1880, to March 12, 1884, and now is held by Messrs. Butler, Stillman & Hubbard as trustees, under successive syndicate agreements, signed by Frost, Stokes and Hartley, and all the other stockholders, and sales of any interest in the stock to any outsider, worked a forfeiture of the stock, and all the right of the selling stockholder thereto. The clear intent and purpose of all the stockholders and of Frost the borrower, of Stokes the lender, and Hartley the purchaser of the stock, was to render it and every share of it utterly unnegotiable.
    IY. There was no transfer of the manual possession of these certificates from Frost to Stokes. There was no symbolical delivery even of the possession, as for instance, by giving up the key of a safe; not even so much as an order, written or verbal, upon the persons in whose possession they were, for the delivery of anything to any one. The precise words of the statute are to be noted, and it will be observed that a pledge of shares generally is not spoken of at all. It is a pledge of certtfi,cates, and by this can be meant nothing less than the actual placing of the certificates themselves— the paper writings—in the possession and under the control of the leader. Moreover, quite apart from the effect of the syndicate agreement upon the negotiability of the certificate itself, it is to be observed that the cases which hold that stock certificates are negotiable or quasi-negotiable, are all cases in which there had been an actual delivery of the certificate, and we have discovered no case where it has been sought to give to the transfer or attempted transfer of stock without delivery of certificates the effect of a transfer of a negotiable instrument by endorsement and delivery. McNeil v. Tenth Nat. Bk., 46 N. Y. 325; Daniels on Neg. Instr.; Dos Passos, Stockbrokers. The two things are radically distinct, as are, we submit, the so-called deposit in the case before us, and the deposit of certificates required by the statute.
    V. The sale of the stock was unauthorized, and therefore a conversion, even though the loan and note were valid. Payment of the note was not demanded “ at the house of William E. D. Stokes, 37 Madison avenue, New York City.” Edwards on Bills, 157.

      Butler, Stillman & Hubbard and William Allen Butler and Wilhelmus Mynderse, of counsel, for respondent.
    I. The advance of $6,500 made by W. E. D. Stokes to George Y. B. Frost, October 2,1883, having been re-payable on demand, and having been made on certificates of stock pledged as collateral security for such repayment, it was lawful for the parties to the transaction to contract for the receipt and collection, as compensation for making such advance, of the sum agreed upon in the written instrument. Chapter 257, Laws of 1882.
    II. The certificates of stock were lawfully pledged as collateral security for the repayment of the advance, although not delivered into the manual possession of the lender. The note and agreement recites that the borrower has “ deposited with said W. E. D. Stokes, as collateral security,”.....Coupled with the note and agreement, and delivered simultaneously therewith, were irrevocable stock powers of attorney from the borrower to the lender to transfer the shares. This constituted a valid pledge, and was the equivalent of a deposit of the stock. Stokes by the duly authorized transfer “ surrendered ” the certificates and procured the issue of new certificates, which he could not have done if he did not have the control of them, and this was what the pledge gave him in fact, as well as by its terms. The essence of a pledge is the transfer of the actual control over the thing pledged. The statute does not call for a “ deposit ” but a “ pledge,” and it is the settled law that a pledge is valid without delivery of the subject of the pledge where the specific property is designated and appropriated to the pledgee. Parshall v. Eggert, 54 N. Y. 18; Macauley v. Hopkins, 35 Hun, 556; Wilson v. Little, 2 N. Y. 443 ; Bank of Rochester v. Jones, 4 Ib. 497. Even where the pledged property remains in the possession of the pledgor the pledge will be upheld according to the intent of the parties. Macauley v. Hopkins, 36 Hun, 556 ; Kingsbury v. Thomas, Ct. of Appeals, May, 1887.
    HI. The contention of the appellant’s counsel that the Act of 1882 permits the pledge only of securities negotiable at the time of the advance, and that the certificates of stock described in the note and agreement of October 2, 1883, were not on that date negotiable, but were by the trust agreement made non-negotiable, is untenable. “ Certificates of stock ” are expressly named in the Act of 1882, as permitted subjects of pledge. The words “ or other negotiable instruments ” are words of description, designating instruments which may, in addition to those particularly mentioned, be pledged under the act. Neither warehouse receipts nor bills of lading are negotiable in the same sense as bonds of corporations payable to bearer, because they do not pass by mere delivery, but they, as well as stock certificates, are negotiable by the commercial law, and Avithin the category of negotiable instruments, and- the certificates of stock in question were none the less negotiable instruments because the stockholders had chosen to agree not to place them on the generalmarket.
    These agreements were (first) those of December 14, 1880, and August 10, 1881, providing for tlm holding' of the shares of the parties interested in the telegraph and messenger companies, respectively, in trust as therein provided; and {second), the agreement of March 12, 1883, providing for distribution of the stock according to the several interests of the stockholders and the issuing of certificates of stock in the respective names of the stockholders, which was done. It was expressly provided by the last mentioned agreement, to which Frost was a party, as follows : “ And we do further severally agree, each signer of this instrument with each other signer hereof, not to sell, transfer or hypothecate the said stock of the said companies issued in our respective-names or our interest in the same, at any time before? the said twelfth day of March, 1884, to any person other than to some one of the parties to this agreement, except with the consent in writing of the other signers thereof.” The pledge of the stock by Frost to Stokes was made October 2, 1883. His certificates of stock then outstanding in his name were negotiable instruments, although subject to the agreement which restricted the market for their sale or hypothecation. But they were certificates of stock within the description of the statute. They were negotiable by their terms, and they were, in fact, negotiated by the transaction between Frost and Stokes.
    IV. There was no error in the finding of the referee as to the sufficiency of the demand. As against the maker of a note the place of demand is not material, or, if material, it must be pleaded and the plea supported by proof. Edwards on Bills, § 182; Hills v. Place, 48 N. Y. 520.
   By the Court.—Truax, J.

In October, 1883, Mr. Stokes, at the request of Mr. Frost, lent him the sum of $6,200.

At the time this loan was made, Mr. Frost gave to Mr. Stokes a certain paper, in and by which he promised to pay to Mr. Stokes or order, at the house of Mr. Stokes, 37 Madison Avenue, $6,200, on demand, with interest at 12 per cent, per annum.

This paper also recited that the said Frost had deposited with the said Stokes, as collateral security, one hundred shares of Mutual District Telegraph Company stock, and ten shares of Mutual District Messenger Company, limited, stock, which was then in the hands of Butler, Stillman & Hubbard, trustees, and it authorized the said Stokes to sell said stock without notice, at the Board of Brokers, or at public or private sale, at the option of the said Stokes, in case of non-payment by said Frost, and to apply the net proceeds of the sale to the payment of the indebtedness, including interest.

Mr. Frost did not pay the note on demand, and thereupon Mr. Stokes, at private sale, disposed of the col-, lateral, but not for a sum sufficient to pay the amount of Frost’s indebtedness to him.

It is to recover the amount due him that Mr. Stokes brings his action, while Mr. Frost brings his action to recover the value of the stock which he alleges has been converted by Mr. Stokes.

■ Mr. Frost claims that the transaction between himself and Mr. Stokes was usurious and void, because of the agreement to pay more than the legal rate of interest, while Mr. Stokes says that the said transaction is within chapter 237 of the Laws of 1882, and therefore is not usurious and void.

That chapter provides that “ in any case hereafter in which advances of money, re-payable on demand, to an amount not less than $5,000, are made upon warehouse receipts, bills of lading, certificates of stock, certificates of deposit, bills of exchange, bonds, or other negotiable instruments, pledged as collateral security for such repayment, it shall be. lawful to receive, or to contract to receive and collect, as compensation for making such advances, any sum to be agreed upon in writing by the parties to the transaction.”

The loan made by Mr. Stokes was rc-payable on demand,'and was for more than $5,000. It was made upon certain certificates of stock which were pledged with the lender as collateral security for such repayment.

The appellant contends that it was the intention of the legislature to protect only instruments that are negotiable, and he also contends that the certificates pledged by him were not negotiable, because they were then in the hands of trustees, and that therefore the transaction was not protected by the Act above referred to.

It is to be noticed that none of the securities mentioned in the statute, except bills of exchange, are strictly negotiable, and therefore the statute must be construed to mean that a loan may be made upon warehouse receipts,.....bonds, or other instruments which are negotiable. But if it was intended to class certificates of stock with negotiable instruments, then the mere fact that these certificates had been deposited with trustees, under certain agreements, did not make them non-negotiable.

On the execution of the agreement between the appellant and the respondent, the certificates came into the constructive possession of the respondent, for the trustees then became the agents of the respondent and held the stock for him.

At the time the pledge was made the appellant gave to the respondent the usual powers of attorney to transfer the stock.

On the 6th day of February, through those powers of attorney, the respondent surrendered the two stock certificates which were then standing in appellant’s name, and procured to be issued to him new certificates in his own name.

' This was more than a month prior to the time of the respondent’s demand for the repayment of the loan,, and was, so the appellant claims, a conversion of the stock-at that time.

But it is to be noticed that in his complaint the plaintiff does not allege that the conversion was made on the 6th day of February, 1884. He alleges that the conversion was made at the time that the respondent sold the certificates of stock, after the demand was made by him on the appellant, for the repayment of the loan. Nor does the appellant allege in his complaint any demand by him before the bringing of his action for said certificates of stock. Moreover, the evidence shows that the respondent had the certificates of the shares with him at the time he made the demand for repayment on the appellant, and then, if the appellant had complied Avith the demand, and had repaid the money, the certificates would have been returned to him. But the appellant refused so to do. He refused to pay any more than six per cent., which he claimed was the legal rate of interest. The appellant also claims that there Avas no legal demand made on him for the repayment of the money, and he bases this claim on the provision in the note that the money should be repaid at the house of the respondent.

There is no evidence that any demand was made at the house of the respondent, but we are of the opinion that this place Avas not a place fixed as the only place where a demand could be made.

A demand was made, and at the time of the demand the note, and stock collateral to it, were tendered. This is all that was required by the contract between the parties. °

The vieAV that we have taken renders it unnecessary for us to discuss, the alleged errors as to the rulings of the referee on the evidence relating to the measure of damages.

The judgments appealed from are affirmed, Avith costs and disbursements.

Freedman, J., concurred.

Sedgwick, Ch. J.

In my opinion the judgments should be affirmed with costs.


source: Caselaw Access Project

author: By the Court.— Freedman, J.

license: Public Domain

text:
    BRIDGET WILLIAMS, an Infant, &c., Respondent, v. PETER HYNES, Appellant.

      Streets—Nuisance, what is not—Stoop Line—Burden of proof.

    A regular staircase furnishing an entrance from the street into the basement of a house, although access to it is not barred by a gate or cut off by a railing or chain, but which has a railing on either side thereof, is not a nuisance per se, when built upon private ground, unless constructed contrary to law.
    Nor is such a staircase necessarily a nuisance per se when built upon that part of the sidewalk within the stoop line.
    The space actually occupied by such an appurtenance of a house, when built within the stoop line, is in New York city, withdrawn from that part of the sidewalk over which the public has unrestricted right to pass and repass.
    If from the manner of its construction and its relation to that part of the sidewalk over which the right of public travel is unrestricted, such appurtenance is or becomes dangerous, the owner or occupant of the house may be liable for an injury caused thereby, notwithstanding he complied with the ordinances, but this is a question of fact in each case, and the burden is on plaintiff to show that it is either a nuisance in fact or contrary to the ordinances.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 23, 1887.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.
    The facts sufficiently appear in the opinion.

      Thomas E. Stewart and Sol. Kohn, of counsel for appellant.

      Morgan J. O'Brien and Peter A. Hendrick, of counsel for respondent.
   By the Court.— Freedman, J.

The action was brought to recover damages for injuries sustained by the plaintiff in consequence of a fall down the steps leading to the basement of premises, No. 224 E. 57th street in the city of New York.

The complaint charges “ that said building was negligently, carelessly and unlawfully built, in that there was at the time hereinafter mentioned, upon the sidewalk in front of said building, a dangerous, unlawful and unguarded opening and entrance by means of a stairway to the basement of said building,” and it then charges the defendant, as the owner, of the premises, with a careless and unlawful maintenance of the said stairway on the day of the injury. The answer denies each and every allegation of the complaint, except the allegation concerning defendant’s ownership, and then sets forth that the alleged injury was not caused by any negligence or fault on the part of the defendant or of his servants, but by the negligence and fault of the plaintiff herself.

At the trial two different versions were given as to the cause of plaintiff’s fall.

According to the plaintiff’s story she was returning from an errand for her mother, when as she passed the premises in question, a boy, named Johnnie Dwyer, while playing marbles, suddenly knocked up against her and caused her to fall, in consequence of which she fell down the said steps.

According to testimony given on behalf of the defendant, the plaintiff and Johnnie Dwyer were sitting on the top of said steps playing jacks, throwing up a marble and then catching the jacks while the marble was in the air; that the marble fell down the steps; that, pursuant to plaintiff’s suggestion that they should try who should be the first to catch the marble, they both' started rapidly down the steps for this purpose, and that, while doing so, the plaintiff slipped and fell.

The learned judge who presided at the trial refused to dismiss the complaint, refused to direct a verdict for the defendant/and refused to submit any question relating to defendant’s negligence or to plaintiff’s contributory negligence to the jury, but charged the jury that the only thing they had to determine was the extent of the compensation which the plaintiff should have for the injury which she “ sustained through the negligence of the defendant.” The defendant was also refused permission to prove that the original construction of the building, inclusive of the stairway in question, was in accordance with the requirements of the building acts in force at the time, and that it had been approved by the building department. All these rulings were duly excepted to.

The uncontroverted evidence showed that the defendant had purchased the premises in 1872, and that at the time of such purchase the building and the stairway in question, were just the same as they were at the time of the accident; that the sidewalk in front of the premises was unusually. wide, there being twenty-nine feet between the curb and the house Hue, and tweifiy-four feet between the curb and the first step of the stairway; and that -the ordinances of the city allowed a stoop fine of seven feet in front of the house line. From these matters it followed that, if the sidewalk was twenty-nine feet wide by law, the first step of the stairway was two feet within the stoop line.

But it further appeared by the testimony of a witness who was connected with the Department of Public Works, that'in that part of the street in question, the curb line..is twenty feet from the house line. According to that the jury might have been asked to find that the stairway was not within the stoop line at all, but wholly upon private ground. It was a regular staircase, furnishing an entrance, into the basement. Although access to it was not barred by a gate, or cut off by a railing or chain in front of it, it had a railing on each side, and in this way it was made impossible for persons passing along the sidewalk to travel over the space of the five feet occupied by it.

Under the circumstances, and there being no claim that the stairway or any part thereof, was out of repair, the disposition made of the issues cannot be sustained, unless the stairway, as originally constructed, constituted a nuisance per se, and the plaintiff’s injury was caused thereby. Under the circumstances stated the stairway was not a nuisance per se, unless it was constructed contrary to law. Upon this point the defendant proposed to show that in its construction all the requirements of the law had been observed, but the evidence was excluded. On the other hand the plaintiff, upon whom the burden of proof was, failed to show a violation of law. The counsel for the plaintiff relied solely upon the decision of Clifford v. Dam, 81 N. Y. 52. But the doctrine of that case does not apply, because the injury in that case was caused by a coal-hole in that part of the sidewalk intended for unrestricted use by the public.

In consequence of what has already been said, the conclusion is unavoidable that, if the stairway in question was on defendant’s own ground, the defendant Avas entitled to the direction of a verdict. But even if the stairway occupied a part of the sideAvallc Avithin the stoop line, it would not n necessarily folloAv that it Avas a nuisance per se. If that were so, every stoop and every kind of projection from a house, Avhich in any Avay encroached upon the sidewalk, Avould bo a nuisance. The fact is that the streets in a city exist as much for the benefit of the occupants of the houses built along the sides of the streets, as for the benefit of the general public, and that new streets are constructed from time to time, according to the demands of building necessities. The centre of each street consists of a carriage way for the passage of Apellides, and on each side thereof is a sidewalk for the passage of pedestrians. The width of each street is fixed by law, and the common council of the city has poAver to regulate, by ordinance, the use of the streets and of the sidewalks. The only limitation upon this power, is that any such ordinance shall not be inconsistent with law and the constitution of the state. In the exercise of this power the common council has, by ordinances which have been repeatedly recognized by the legislature, allowed on each sidewalk a so-called stoop line, which varies according to the width of the street, and within every such stoop line, stoops, areas, and steps descending into the cellar or basement of a house, may be constructed in a certain manner and under certain regulations. The space thus usually occupied by any such appurtenance of a house, is withdrawn from that part of the sidewalk over which the public has the unrestricted right to pass and to repass, and consequently every such ' appurtenance stands upon a different. footing than that occupied by a coal-hole existing in that part of the sidewalk over which the right of public travel is wholly unrestricted. If, from the manner of its construction and its relation to that part of the sidewalk over which the unrestricted right of public travel exists, any such appurtenance is, or becomes, dangerous, the owner or occupant of the house may be liable for an injury caused thereby, notwithstanding he complied with the ■ ordinances ; but this is a question of fact depending upon the circumstances of the particular case, and in every such case the burden is upon the plaintiff to establish that the appurtenance complained of is either a nuisance in fact or contrary to the ordinances. Even a stepping stone placed near the curb has been held not to be a nuisance per se. DuBois v. Kingston, 102 N. Y. 219; Morassy v. Mayor, 54 Super. Ct. 432.

In this aspect of the case, the case at bar should at least have been submitted to the jury. Upon the point whether the stairway in question was, in any proper legal sense, the cause of plaintiff’s injury, the case is, upon plaintiff’s own showing, one in wdiieh. different minds might reasonably come to different conclusions, and for this reason the point should have been submitted. to the jury. On the other hand, if the case had gone to the jury, and the jury had believed defendant’s version of the occurrence in preference to that given by the plaintiff, the defendant was entitled to a verdict.

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

Sedgwick, Ch. J., concurred.


author: By the Court.—Freedman, J.

text:
    HENRY W. H. FITZGERALD, Respondent, v. HANNAH VIRGINIA DESHLER, et al., Appellants.

      Injunction—not granted when lis pendens failed.

    An injunction will not he granted restraining the disposition of real property during the pendency of an action in relation thereto, where the rights of the plaintiff are fully protected by the filing of a notice of lis pendens.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 23, 1887.
    Appeal from order granting injunction.
    The facts appear in the opinion.

      Edward F. Brown, attorney, and Hooper O. Van Vorst, of counsel, for appellants.

      Harrison & Langdon, attorneys, and J. F. Harrison, of counsel, for respondent.
   By the Court.—Freedman, J.

This is an appeal from an order of injunction enjoining and restraining the defendant Noyes, as referee appointed by a certain judgment, from making, executing or delivering any conveyance or assignment of the leasehold property described in the complaint, and also enjoining and restraining the defendants, and each of them, from in any manner interfering with the said property, and appointing a receiver of the rents and profits of the said property during the pendency of the action.

The action was brought to compel the specific performance of a written agreement for- the conveyance of the said leasehold property. The alleged agreement was not executed by the appellants, or either of them, but was executed by one W. I. Butler, an attorney and counsellor at law, and the .attorney of the defendant H. Virginia Deshler, in an action for the foreclosure of a mortgage described in the case on appeal. As the attorney of record in such action, he clearly had no power to make any such agreement. Whether he had been empowered- by the appellants, or either of them, to make the agreement, as attorney in fact, remained, on the motion for the injunction, &c., a disputed question of fact. The appellants, by their affidavits, strenuously insisted that the agreement had been made without their authority and without their knowledge or consent.

Another question of fact, which remained in dispute on the motion, was whether, at the time of the commencement of this action, there was, or was not, another action pending in the Supreme Court between the same parties and upon the same cause of action. That such an action had, at some prior time, been instituted, was conceded. Moreover it appeared that the plaintiff in the present action had filed a notice of lis pendens.

Under these circumstances the order appealed from should not have been granted.

On the application for the injunction and the appointment of a receiver, it was incumbent on the plaintiff to show first, a strong probability of an ultimate decision that he is entitled to the relief demanded in the complaint, and secondly, that the property is in danger of being lost, or materially injured or impaired, before final determination. The plaintiff failed to sustain the burden of proof in these respects.

The case therefore falls within that class of cases in which the rule is, that an injunction will not be granted restraining the disposition of real property during the pendency of an action in relation thereto, where the rights of the plaintiff are fully protected by the filing of a notice of lis pendens.

The order should be reversed with ten dollars costs and disbursements to be taxed.

Sedgwick, Ch. J. and Teuax, J., concurred.


author: By the Court.—Truax, J.

text:
    THE ATLANTA HILL GOLD MINING, &c. CO., v. CONSTANT A. ANDREWS.

      Bes Adjudícala.

    A judgment or adjudication is final and conclusive, not only as to the matters actually determined, but as to every other matterowhieh the parties might have litigated and have had decided, as incidental to, or essentially connected with the subject matter, coming within the legitimate purview of the original action, both in respect to matters of claim and of defense.
    To render a judgment effectual as a bar to another action the causes of action must be substantially the same; that is, they must b.e sustained by the same evidence, though the form of the actions may be different.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided June 23, 1887.
    This action was tried before a judge and a jury.

      The trial judge directed the jury to render a verdict in favor of the plaintiff, and further directed that the exceptions be heard in the first instance at the general term.
    The facts appear in the opinion.

      H. E. Deming, for plaintiff.

      Jones & Roosevelt, for defendant.
   By the Court.—Truax, J.

Sometime prior to the commencement of this action, the defendant herein commenced an action against the plaintiff in the territory of Idaho, and in his complaint alleged that the defendant in that action, the plaintiff in this, was a corporation duly organized under the laws of the state of New York, having its principal place of business and office in the city and county of New York; that it was doing business as such corporation, in its corporate name in Alturas county, in the territory of Idaho aforesaid; that the defendant in that action, the plaintiff in this, on certain dates, duly made and issued to the said Andrews and delivered to him its certain promissory notes for value received, payable on demand to its own order, and endorsed the same to the said Andrews, who thereby became and was the legal owner and holder thereof; that those notes were then due and unpaid; that the said defendant, the plaintiff in this action, in its corporate name and capacity, and by its proper officers thereunto duly authorized and empowered, duly signed, executed, endorsed and transferred the above notes to the said Andrews, who became and was the owner and holder thereof. And then said Andrews demanded judgment against the defendant in that action, the plaintiff in this, for the aggregate sum of all of those promissory notes, with interest and costs.

The defendant in that action in its answer, among other tilings, denied that on the days or dates stated in said complaint, or at any other time or times, it made or issued to said plaintiff, or delivered its promissory note or any promissory note, for value, or otherwise, payable on demand or otherwise, to its OAvn order or otherwise, or endorsed the same, or any such promissory note, to the said Andrews, and averred that said alleged promissory notes yvere not executed with or under the authority of the said defendant; and then as a further answer, the defendant in that action, alleged that at the days and dates of said alleged promissory notes mentioned in said complaint, and from the 7th day of May, 1883, and continuously for a period of nine months thereafter, the said plaintiff was the president of the defendant, and that as such president, said plaintiff signed and endorsed to himself the notes described in the complaint in that action, Avithout the authority of the defendant in that action; and then demanded judgment for a dismissal of the conrplaint, Avith costs and disbursements.

The issue made by the pleadings AAras regularly called for trial and the court decided, among other things, that the defendant in that action, the plaintiff in this, neither made, issued nor delivered to the said Andrews the promissory notes described in the complaint, or any or either of them; that at the dates of said promissory notes, and at the times the same were executed, and from ■the 7th day of May, 1883, and until after the 21st day of January, 1884, the plaintiff was the president of the defendant corporation, and as such president was present and presided at the meetings of the board of trustees of defendant when a salary was voted to the plaintiff in that action, as president of the defendant corporation, for which plaintiff claimed said notes were executed to him; and the plaintiff at the day of the meeting proposed the resolution and requested one of the trustees to introduce it in the meeting.

And as a conclusion of law, the court held that the resolutions voting plaintiff a monthly salary as president of the defendant corporation, for which the plaintiff claimed said promissory notes were executed, were and are void; and that the defendant in that action, the plaintiff in this, was entitled to a j udgment for its costs and disbursements in the action, and thereupon a judgment was entered in the form suggested.

After the commencement of the action in Idaho, the plaintiff herein began an action in this court against the defendant herein, in which it sought to recover from the defendant the sum of $1,500, which had been paid to the defendant under the above mentioned resolutions, an account of monthly salary from the 12th day of May, 1883, the complaint alleging that this payment was made under and pursuant to certain resolutions which were passed at meetings of the board of trustees of the plaintiff corporation, at which meetings the said defendant was present, and that his vote on the resolution was necessary in order to obtain the passage of the resolution.

The defendant answered denying some of the allegations in the complaint, and in substance denying that the vote of defendant was requisite in order to procure the passage of the resolutions above mentioned. The defendant further alleged that he was president and acted as president of the plaintiff from the 7th day of May 1883, until the 6th day of February, 1884, and as such president rendered valuable services for the plaintiff, which services were of the value of not less than $500 per month. The defendant as a counter-claim alleged the making and delivery of the notes above referred to, in consideration of the services rendered by the defendant as president, as aforesaid, and demanded judgment for the amount that was due on the said notes with interest.

The only evidence offered by the plaintiff on the trial of this action was the judgment roll in the action in the territory of Idaho. The defendant objected to the admission of the judgment roll on the ground that it was inadmissible and incompetent. This objection was overruled, and to this ruling the defendant excepted.

The defendant was called as a witness in his own behalf, and offered to prove certain facts. This offer was overruled. The evidence was excluded, and the defendant duly excepted.

The theory on which the trial judge acted was that the judgment rendered in Idaho was an adjudication as between the parties, that the resolutions under which the defendant was paid the sum of |1,500, and under which the notes were given to the defendant for his services, were illegal and void. We are of the opinion that in this he did not err.

One of the matters which was litigated in the controversy in Idaho was that the resolutions Anting Mr. Andrews a monthly salary as president of the corporation, were null and void. If those resolutions. Avere null and void, then the defendant Avas not entitled to his salary • for a contract made betAveen a corporation and one of its directors to the pecuniary advantage of that director, if made at a meeting of the board of' directors when he is present and takes part in the pro-, ceedings, is void. Butts v. Woods, 37 N. Y., 317; Kelsey v. Sargent, 40 Hun, 150.

It is well settled in this state that a judgment or adjudication is final and conclusive not only as to the matters actually determined, but as to eA7ery other matter Avhich the parties might have litigated and have had decided, as incidental to, or essentially connected A\dth the subject matter coming within the legitimate puiwieAv of the original action, both in respect to matters of claim and of defence. All that is necessary to render a judgment effectual as a bar to another action, is that the causes of action are substantially the same. Tavo causes of action are substantially the same, although one action differs from the other in form, if they are sustained by the same evidence. March v. Masterton, 101 N. Y, 407,

One of the matters of claim in the action in Idaho was that the resolutions voting the defendant in this action, the plaintiff in that action, a salary, were authorized and legal. This claim was decided against the plaintiff in that action,—and this we consider an adjudication which controls the court here.

This view renders it unnecessary to consider the exceptions which were taken by the defendant in this action to the decision of the court in overruling his offers of testimony.

The defendant’s exceptions are overruled and judgment is ordered for the plaintiff, with costs and disbursements.

Sedgwick, Ch. J., concurred.


author: Truax, J. O’Gorman, J.

text:
    CYRUS CLARK, Appellant, v. ELIZABETH A. L. HYATT, Respondent. ELIZABETH A. L. HYATT, Respondent, v. CYRUS CLARK, Appellant.

      Ratification, principles of applied—Ignorance of an immaterial fact militates not against ratification.

    The respondent, Elizabeth Á. L. Hyatt, then being in London, made a power of attorney to one Lake, reciting that she was entitled to certain real and personal estate in the United States; that Lake was about to proceed thither for the purpose of taking charge of all of the respondent’s affairs there, managing, conducting or carrying on the same; that respondent was desirous of appointing Lake her attorney, with such powers as were or might be necessary or convenient for enabling him to manage and conduct her affairs, and property real and personal in the United States, as effectively as if she were personally present; and appointing Lake her attorney generally, to manage and conduct her property and affairs in the United States, as fully and effectually as if she were personally present, and to sell and dispose of all or any part of her real and personal property in the United States, and to convey and assign the same to the purchaser or purchasers thereof. Lake, about January, 1880, executed and delivered to the appellant, Clark, a lease of certain premises of Mrs. Hyatt, in the city of Hexv York, for a specified term, at a specified rental. The lease contained an agreement for two renewals, and a covenant on the part of Clark to expend not less than $2,000 in putting the premises in thorough repair and in making certain necessary alterations. Pending the negotiation for the lease, some question was raised as to the power of Lake to give a lease. After the execution and delivery of the lease, and on February 7, 1880, the following cablegram, “Your power of attorney cancelled; sign no lease,” was received by Lake from the husband of Mrs. Ilyatt. Clark entered into possession February 12, 1880, and expended upwards of $1,000 in making alterations. Mrs. Hyatt came to the city of Hew York in September, 1880, saw Clark and the premises, saw the alteration which Clark was then making, and accepted rent from him at that time and afterward. The "trial court found that Clark did not accept the delivery of the lease absolutely at the time it was made, but postponed his decision as to accepting or not accepting it, until Lake should have telegraphed to England to ascertain whether or not Mrs. Hyatt would consent to it; and also found that this fact was not disclosed to Mrs. Hyatt until about October, 1884, and that she accepted the rent which had been paid to her in ignorance of any right on her part to question the transaction or disaffirm or cancel the lease.
    The first above entitled action was brought to compel the execution of a renewal pursuant to the covenants in the lease, and resulted in a judgment for the defendant. The second above entitled action was brought to procure a cancellation of the lease, and resulted in a judgment for plaintiff. From these judgments cross-appeals were taken.

      .Held, (1) That Mrs. Hyatt, by receiving the rent, and permitting Clark to continue making alterations, after she had full knowledge of the fact that the lease had been made and of its terms, ratified the act of her agent in making it; such knowledge on her part being all that was necessary to make such acts by her operative as a ratification. (2) That ignorance of an immaterial fact militates not against a ratification raised by acts and conduct in affirmance of a contract or transaction done with full knowledge of all the material facts. (3) That in the case at bar the fact that Clark did not accept the delivery of the lease absolutely, at the time that it was made, but postponed his decision as stated (even "if such was the fact), was immaterial, and ignorance of it ■did not affect the question of ratification.
    Before Teuax and O’Gorman, JJ.

      Decided June 23, 1887.

      Appeals from judgments entered on the trial of the-above actions before the court at special term.
    The facts appear in the opinion and the head note.

      Sanger & Davies attorneys, and Joseph II. Choate of counsel for appellant, on the questions decided, argued:
    I. There can be no question about Mr. Lake’s (Mrs. Hyatt’s agent’s) authority to execute the lease in question. Hedges v. Riker, 5 Johns. Ch. 163.
    H. The delivery of the lease being to the lessee was. absolute, and no oral conditions can qualify the delivery. Cocks v. Barker, 49 N. Y. 107; Worrall v. Munn, 5 N. Y. 229; Gilbert v. N. Am. F. Ins. Co., 23 Wend. 43; Wallace v. Bardell, 97 N. Y. 13; Wilson v. Been,. 74 N. Y. 533.
    IH. Even if the appellant had postponed his decision as to accepting or not accepting the lease until he should further hear from the respondent in England, judgment for the respondent was erroneously given. In Wash- • burn on Real Property, Vol. III, page 284, it is said: “ If after a deed is put on record for the grantee, he assents to or ratifies the act, it becomes a good delivery.” But the present case is even stronger than that put by Washburn, for here the grantee himself put the deed on record. The law is in fact against the grantor —that is, the courts will not hold the grantee bound by the deed if it appears that he did not accept the deed. For, as is said in Townson v. Tokell, 3 B. & Ald. 36, “ The law is not so absurd as to force a man to take an estate against his will.” But here we have the anoma- ■ lous proceeding of a grantor seeking to relieve a grantee of a burden of which the grantee has not asked to be discharged. As was said in the case Bank v. Webster, 44 N. H. 268, “ The acceptance of the deed must be attended with an obligation to pay the price of the land, and therefore a duty would be imposed upon the grantee to which his actual assent would be necessary.” In that.' -case the grantee never had the deed in his possession until after a certain claim by the plaintiffs existed, and never did anything to assert his title before then. In the present case the grantee did assume an obligation to pay the rent and actually occupied the premises and paid rent. As was said in the case of Hulick v. Scoville, 4 Gilman (III.) 159, “ Because a grantee will probably be benefited by accepting a deed, it may reasonably be ■presumed that he will do so.” So strong is the law in favor of the presumption that a grantee will accept a ■deed. See Church v. Gilman, 15 Wend. 656. In Fisher v. Wall, 41 N. Y. 416, referring to the authorities upon what is necessary to create a legal delivery of a deed, it is stated by the court that their general result is as follows : “ To constitute a complete delivery of a deed, the grantor must do some act, putting it beyond his “ power to revoke ” (quoting from Cowen and Hill’s notes). It is impossible to deny that the grantor in the present did that very thing. The dictum in Ford v. James, 2 AbbCt. App. Cas. 159, 163, 4 Keyes, 300, 313, to the effect that, “ A deed may be deposited with the grantee or handed to him for any purpose other than as the deed ■ of the grantor, or as an effective instrument between the parties, without becoming at all operative as a deed,” is altogether too broad, and is misleading, and it must be limited by the cases cited in the second point. In the present case the grantee did determine to accept the deed; and in every case where a deed was held not to have been delivered, either it had never come into the grantee’s hands, and he had never authorized the person receiving it to receive it for him, or it came into the grantee’s hands with some element of fraud attached, •as in Bank v. Webster, cited above, Black v. Lamb, 1 Beasely (N. J.) 106, or there was some vital defect ithe transfer of the deed from the grantor to the grantee, none of which elements enter into the present case.
    IV. Even if the act of the attorney in giving the lease was unauthorized, yet Mrs. Hyatt ratified it. It is of course, true that, as has been said in the case of Benninghoff v. Agricultural Ins. Co., 93 N. Y. 495, 501,. “ It is essential to the validity of an act which is claimed, to have been authorized by a subsequent ratification thereof, that the principal should have had full knowledge of the circumstances attending upon the performance of the act of the assumed agent at the time of such, ratification.” But in the present case the principal had all the knowledge that was necessary tó protect her rights. Mrs. Hyatt cannot claim that she did not know her agent had no authority to sign the lease, for a principal must know the scope of his agent’s authority, as we have seen above. Adams v. Mills, 60 N. Y. 533, 539. And the only condition which can possibly be claimed as having been attached to the lease is, as we' have said, one that embodies the very question of the agent’s authority. Myers v. Mutual Life Ins. Co., 99 N. Y. 1, 11; 32 Hun. 321; Meehen v. Forrester, 52: N. Y. 279. The only condition which can be possibly claimed as having been attached to the lease is as we have said one that embodies the very question of the agent’s authority.

      A. P. & W. Man attorneys, and William Man of counsel for respondent, on the points decided, argued:
    I. The power of attorney did not authorize the alleged lease. It is conspicuously bare of all phrases, words or terms referring in any possible way to letting or leasing. The general language of authority is “ to manage and conduct my property and affairs as fully and effectually as if I were personally present.” If she were personally present, Mr. Lake would have no authority; the' paper does not say as fully and effectually as she herself could do, if personally present. The law is that a “ formal instrument delegating powers is to be subjected to strict interpretation and the authority is not extended beyond that which is given in terms or which is necessary to carry into effect that which is expressly given-They are not subject to that liberal interpretation given to less formal instruments, as letters of instruction in commercial transactions, which are interpreted most strongly against the writer, &c.” Craighead v. Peterson, 72 N. Y., 279; Geiger v. Bolles, 1 Supreme Ct. 129; Filley v. Gilman, 34 Super. Ct. 339; Taylor v. Hoey, 26 Ib. 402. A power “to bargain and sell land” does not authorize the agent to mortgage. Wood v. Goodridge, 6 Cush., 117. Nor to license the purchaser to go on and cut timber before payment and conveyance, even although done bona fide with a view to effect the sale. Hubbard v. Elmer, 7 Wend., 446.
    II. There has been no ratification by Mrs. Hyatt, of the lease. The receipt of the rents to November 1, 1884, was no ratification. She had the right to disaffirm and cancel the lease on two grounds: 1. That it was not authorized by the power of attorney. 2. That by the facts and circumstances attending its execution it was made dependent on her ratification. It may be that the first ground she waived by taking the rent. But she could not so waive the second ground, because she never had any knowledge of the facts and circumstances which gave her the right to disaffirm. Until she discovered these, she could not so ratify as to waive her rights. Her acceptance of the rents was in consequence of the assurance in Lake’s letters that she had no chance to do otherwise. A ratification must be with full knowledge of all the, circumstances. Story’s Agency, § 329; Price v. Keys, 1 Hun, 177; reversed on other grounds, 62 N. Y. 378; Hoffman v. Tredwell, 2 Sup. Ct. (T. & C.) 57; Nixon v. Palmer, 8 N. Y. 398; Seymour v. Wyckoff, 10 Ib. 213 ; Craighead v. Peterson, 72 N. Y. 285.
    III. Parol evidence is always admissible to explain and qualify the delivery of a deed, or any other instrument in writing, even where it has been'delivered by the grantor to the grantee. Gilbert y. N. A. F. Ins. Co., 23 Wend. 43; Cocks v. Barker, 49 N. Y. 107; Jackson v. Perkins, 2 Wend. 308; Ford v. James, 2 Abb. Ct. Ap. 159; Worrall v. Munn, 5 N. Y. 329.
   Truax, J.

In January, 1880, the respondent was the owner of property known as No. 25 Waverly Place, in the city of New York, and other real estate in this state. She was then living in London. On the second day of January, 1880, she made a power of attorney to her brother Arthur Lake, which power of attorney recited that the respondent was entitled to certain real and personal estate and effects in the United States, and that the said Arthur W. Lake was about to proceed to the United States of America for the purpose of taking charge of all the respondent’s affairs in the United States, and of managing, conducting or carrying on the same; and that she was desirous of appointing the said Lake her attorney, with such powers as are or may be necessary for or convenient for enabling him to manage and conduct her affairs and property, real and personal, in the United States, as effectually as if she were personally present there.

She then proceeded to appoint the said Lake her true and lawful attorney for her and in her name, or in his own name and on her behalf generally to manage and conduct her property and affairs in the United States of America, as fully and effectually as if she were personally present, and to sell or dispose of all or any part of her real and personal estate in the United Stat.es, and to ' convey or assign the same to the purchaser or purchasers thereof.

Acting as he supposed, under this power of attorney, Lake entered into negotiations with Clark for a lease of the premises No. 25 Waverly Place. There was some doubt whether or not Lake was authorized to make any lease by his letters of* attorney, but finally in January, 1880, said Lake did execute and deliver to said Clark a lease of • the premises above mentioned, for the term of five years at a rental of $2,000 a year, with an agreement to renew said lease, upon certain conditions, for two other terms of five years each.

After the execution and delivery of this lease Mr. Lake received a cable message from Mr. Hyatt, the husband of the respondent, which read as follows: Tour power of attorney cancelled. Sign no lease.”

Mr. Clark entered into possession of the premises February 12, 1880. He agreed in his lease to expend not less than $2,000 in putting the place in thorough repair and in making certain necessary alterations. It was in evidence that he did pay upwards of $4,000 in making these alterations. Mrs. Hyatt came to this country in September, 1880, and saw Mr. Clark, and accepted the rent of the premises from him up to February, 1885.

Mr. Clark brings his action to compel Mrs. Hyatt to specifically perform the terms and conditions of the clause and covenant in the said original lease, providing for a renewal thereof, while Mrs. Hyatt brings her action to obtain a judgment adjudging and decreeing that said lease is nidi and void, and that it be delivered up to her to be cancelled. She claims in both of the actions in substance, that the power of attorney did not authorize the attorney therein named, to make a lease, and that for certain reasons which will hereafter be mentioned, she has not ratified the lease already made.

I am of the opinion that the power of attorney did authorize the attorney therein named to make the lease.

In view of the facts of the case and the recitals in the power of attorney, it seems to me that the words sell or dispose of all or any part of her real estate,” and the words “ to convey or assign the same,” authorized the attorney to make a lease of the property. A lease is a conveyance. 2 Black. Com. 506. The person conveying is called the lessor. Wharton’s Law Dict. “Lease.” Certainly a lease is a disposition of the property. Mrs. Hyatt by that lease as effectually disposed of the property for the time mentioned in the lease as-, she could have disposed of it by a deed.

In Hedges v. Riker, 5 Johns. Ch. 163, there was a devise to executors in trust, with power to the executors, to sell and dispose of certain real estate. The executors made a lease for years and the court held that this, was a valid disposition of the estate within the will.

It was claimed on the trial and was found that Mr.. Clark did not accept the delivery of the lease absolutely, at the time that it was made, but postponed his decision as to accepting or not accepting it, until Lake should have telegraphed to England to Mrs. Hyatt to ascertain whether or not she would consent to the lease. The trial court also found that this fact was not disclosed to Mrs. Hyatt until about the month of October,. 1884, and that she accepted the rent which had been paid to her, in ignorance of any right on her part to-question the transaction or disaffirm or cancel the lease. The witness Lake testified on the trial to facts which would perhaps warrant these findings; but, on the-other hand, Clark controverted in his evidence, this testimony given by Lake. There is no dispute, however, of this fact: that the lease was drawn up, executed and delivered to Clark, and under the circumstances Clark could not hold the lease in escrow for himself. Delivery of a deed or agreement as an escrow, can only be-made to a stranger. If made to the party, the delivery is absolute, and the instrument takes effect presently, as-the deed or agreement of the party making it. Worrall v. Munn, 5 N. Y. 229.

On the trial, Mr. Yeaman was called as a witness by Mrs. Hyatt. It was sought to prove by him that the lease was delivered to Mr. Clark, but was to be held by him to await the receipt of a message from the respondent. Mr. Yeaman’s recollection of the transaction was-, very vague, but he identified a letter written by him at the time to Mr. Lake. He was allowed to state, under-the objection and exception of the respondent, that the: statements contained in the letter were true; and then,, under like objection and exception, the letter was offered in evidence. This, we think, was error. It undoubtedly was offered for the purpose of corroborating Mr. Lake’s testimony. Undoubtedly it might be used by the witness to. refresh his recollection, but the-paper itself was not evidence of. any fact, and the admission of it, under the circumstances, makes this casein many respects like the case of Hubbell v. Bowe,. 49 Super. Ct. 131, in which this court held, that a line of examination cannot be allowed which in effect puts, in evidence the affidavit of a witness made a long time previous to the trial, instead of his direct oral statement of his present recollection of the facts therein deposed" to.”

I am also of the opinion that, even if Lake had not. the power to make the lease, it was ratified by Mrs.. Hyatt, with full knowledge of all the facts that it was-necessary for her to have, in order to make a ratification of the lease. The act that she ratified was the act of her agent in making the lease, and this she did with full knowledge of the only fact that it was necessary that she should know, namely, the fact that the agent, had made the lease. She knew the terms of the lease. She visited the premises, saw the improvements and' alterations which the tenant was then making, accepted rent from him at that time and afterwards, and now it-would be unjust to allow her to set the lease aside on the ground that an immaterial fact which happened at the time of the making of the lease had not been disclosed to her.

Both of the judgments appealed from are reversed,.with the costs and disbursements of appeal in one judgment only.

O’Gorman, J.

The pressure of business on me at special term obliges me to confine myself to a brief statement of the conclusions at which I have arrived.

The power of attorney from Mrs. Hyatt to Lake did not give him authority to execute a lease of Mrs. Hyatt’s house. Craighead v. Peterson, 72 N. Y. 283. Both she and Lake, and Clark, were, each of them, chargeable with knowledge of the legal effect of that power of ■attorney. Ib.

The negotiation between Lake and Clark about the power of Lake to execute this lease, the doubt expressed by Clark, his refusal to accept delivery of the lease, and his postponement of his decision as to accepting or not ■accepting until he heard further from Mrs. Hyatt, his being informed of the cablegram from Mrs. Hyatt, “Your- power of attorney canceled—sign no lease; ” and his acceptance of the lease thereupon, saying he “ would take the risk,” are all immaterial.

The lease then received by Clark was ultra vires, and •of no legal effect, unless Mrs. Hyatt waived the incompetency of her agent to make the lease and ratified the lease, notwithstanding that it was ultra vires.

Mrs. Hyatt, by accepting rent, did waive the objection to the léase as ultra vires, and ratified it, and it thereby became valid and binding. When she. so ratified it, she knew that it was ultra vires. The law charged her with knowledge of the purpose, scope, and legal effect of her ■ own deed, and it made no difference what occurred between her agent Lake, and Clark on the subject of the delivery.

There is authority too, to support the proposition that. she was chargeable with all the knowledge her agent Lake possessed of what occurred between them. Myers v. Mut. L. Ins. Co., 99 N. Y. 11; Adams v. Mills, 60 Ib., 539. But her rights were in no way affected by what they said or did on that subject. Nothing that they could have said or done would have added to or detracted from her right to repudiate the lease, or to ratify it if she elected so to do; and her ignorance of what was said or done between Clark and Lake, was of no consequence, because her rights, in no way, depended on what was said or done between them.

H Lake had power to execute and deliver the lease, he had delivered it, as far as he was concerned, before the receipt of the cablegram from Mrs. Hyatt. That cablegram did not, expressly or by implication, assert that Lake had had no authority to make the lease, when it was so delivered, but only that the power of attorney was cancelled.

If the lease were ultra vires, nothing that had occurred between Lake and Clark about its delivery, could have given it force. If the lease were made by authority from Mrs. Hyatt, then the delivery of the lease by Lake to Clark before the receipt of the cablegram, was a valid delivery to Clark. It could not be regarded as a delivery in escrow, for that can arise only when the instrument is delivered to some one, other than a party to the instrument. Worrall v. Munn, 5 N. Y. 229; Cocks v. Barker, 49 Ib. 107.

The ratification by Mrs. Hyatt, therefore, I regard as a ratification of the execution and delivery of the lease by Lake, and a waiver of her right to object to the action of Lake therein.

In my opinion, the lease, with all its incidents, should stand as valid and binding in all respects on Mrs. Hyatt, and Clark is entitled to a renewal according to the terms of the lease.


author: Per Curiam.

text:
    WILLIAM C. HERRING, as Trustee, &c., v. MARY C. BERRIAN, et al.

      Defect in title—Outstanding tax lease—Effect of referee's report declaring tax sale void—Effect of instrument executed by tax lessee securing purchaser from molestation.

    A purchaser at a partition sale is entitled to be relieved from his purchase, where it appears that there is an outstanding tax lease of the premises, though it also appears that in an action against certain of the defendants in the partition suit, brought by the owner of the tax lease, who was not a party to said partition suit, and which action was not continued to judgment, a referee’s report was made and filed, holding such tax sale void.
    Such an objection is not cured by the execution of an instrument by the tax lessee securing said purchaser from molestation of his title by said lessee, the latter expressly reserving therein Ms right to sue the Mayor, &o., for return to him of the amount paid for taxes.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 23, 1887.
    Appeal from order relieving purchaser on sale in partition, on ground of defect of title.
    The facts appear in the following opinions of the court below:
    “ O’Gorman, J.—The main objection to the- title is that the land was sold for non-payment of taxes and a lease delivered to the purchaser, which lease is still outstanding.
    “In answer to this objection the plaintiff contends that the sale of the land for unpaid taxes was irregular and void, and that it was so held by the referee in an action brought by the holder of the tax lease against the defendant in this action. That action, however, was never continued to judgment, 'and seems to have been ■discontinued, and the report of the referee therein is in nowise an adjudication or estoppel that can be effectual in the action now at bar, and is not evidence in this -action.
    “The rule of law as to judicial sales is, that the pur■chaser should have a marketable title free from all reasonable doubt. The purchaser buys on the assumption' that there are no undischarged defects in the title, and he pays and the seller receives a consideration in view of that implied condition. A title open to reasonable doubt is not a marketable title. A court cannot make it so by passing on objections dependent on a disputed question of fact, or a doubtful question of law, in the absence of the parties in whom the outstanding right is vested. Fleming v. Burnham, 100 N. Y. 8, et seq.

    “ A purchaser should not be left, on receiving a deed, to a hazard of a contest with other parties, which may seriously affect the value of the property if he desires to sell. Jordan v. Poillon, 77 N. Y. 521.
    “ The existence in the case at bar of ■ an outstanding tax lease is a cloud on the title. The title is open to reasonable doubt and is not a marketable title.
    “ Another obj ection is that since the commencement of this action and before the sale therein by the referee, the title of plaintiff as trustee ceased by the death of the cestui que trust, and all the interest remaining in the plaintiff in the land in question was a naked power to sell. I do not so interpret the deed under which plaintiff held in trust. I am not of opinion that the trust vested in the plaintiff, wholly ceased on the death of Cornelius J. Herring. It still continued, I think, for the purpose of sale of the land and distribution of the proceeds among children. Morse v. Morse, 85 N. Y. 57. Besides, even if after the death of Cornelius, the trust in plaintiff had ceased, he yet, as one of the persons entitled to share in the final distribution of the proceeds of the sale of the land, had, I think, a personal interest in the property and right to possession entitling - him. to sue as plaintiff in this action. This défect, however, if it be a defect, may no doubt be cured by amicable arrangement among the parties in interest in this action, if, as I am informed, they desire to render the sale to the present purchaser effective. ■ Cromwell v.. Hull, 97 JSÍ. Y. 209.
    “The other objections depend on alleged irregularities which need not now be considered.
    “The first objection I think is fatal.”
    “ O’Gorman, J.—Since writing my opinion filed on May 5, 1887, my attention has been directed to a paper executed by Mr. Levenson, the holder of the tax lease, and filed, and I am requested to consider its effects on the rights of Mr. Gutman, the purchaser, to be re- - lieved -from his purchase.
    “ I see no reason to' alter the conclusion at which I had heretofore arrived.
    “ This paper called an indenture, executed by the tax lessee, while it may secure the purchaser from molesta- • tionof his title by the tax lessee, expressly reserves to the latter the right to sue the Mayor, &c., of Ñew York for re- - turn to him of the amount paid for taxes. Whether he will succeed in this action, and on what ground his success may depend, are equally uncertain. Tiffs recovery, if he do recover, may depend wholly on the irregularity or illegality of the sale, in which case a question might arise whether a further sale of the premises for the unpaid tax would not be proper. What the result would be if the assessment itself was held to have been irregular or illegal is a question as to which I give no opinion now. But the paper executed by the holder of the tax' lease, leaves that lease still an' existing cloud on the title, against which the purchaser may be called on to-protect himself, through the ordeal, of litigation, to.which he should not be exposed;.
    “ A title endangered is not a marketable title.

      “I have not alluded to other objections made on behalf of the purchaser to the completeness of this paper executed by Mr. Levenson, as relieving the title of its imperfection.
    “ I adhere to the opinion heretofore expressed by me, that Gutman the purchaser at a judicial sale, had the right to a marketable title, and that the title offered to him was not such.”

      G. H. Brewster, for the plaintiff:
    The release of Mr. Levenson, the owner and holder of the tax lease to Mr. Gutman,' the purchaser, is a complete bar to any action that can be brought by the holder of said lease or by his legal representatives or assigns.
    These taxes have been paid to the city on the sale of the premises by the city. There is no power or authority for the city to make a new assessment for the taxes for those years, or to make another sale for those taxes. The assessment and the proceedings for the sale were irregular and void, and were so found by the referee, in the action brought by Mr. Levenson to recover the possession of the premises under said tax lease, and by section 1228 of the new Code that report stands as the decision of the court. If Mr. Levenson should recover a judgment against the city for the moneys he has paid for his lease, the city can collect the amount in a future tax levy on the whole city, in the same manner as other judgments against it. Franklin v. Pearsall, 53 Super. Ct. 271.

      Ten Eyck & Remington, for defendant Berrian.

      Ferdinand Kurzman, for the purchaser:
    I. A purchaser of land at a judicial sale is entitled to a marketable title. A title open to a reasonable doubt is not a marketable one, and the court cannot make it such by passing upon an objection depending upon a disputed question of fact, or a doubtful question of law, in the absence of the party in whom the outstanding right is vested. Fleming v. Burnham, 100 N. Y. 1; Argall v. Raynor, 20 Hun, 267; Jordon v. Poillon, 77 N. Y. 518.
    The tax sale and the lease given in pursuance of such sale, if the proceedings were regular, and in all respects in conformity with the law, vested the premises in the purchaser, or his assigns, for the term mentioned in the said lease. It is claimed that this sale and the lease are void. This raises questions both of law and fact, and brings the case clearly within the above decisions. 1. The party, whoever he may be, claiming under this lease, is not before this court, and will not be bound by any decision the court may make. 2. If it should be held that the proceedings did not conform to the law, and that, therefore, the sale and lease are void, then the tax remains unpaid and is a lien upon the premises with interest from its date. As the case now stands, the purchaser cannot pay these taxes, and deduct the amount from the purchase money. The city could not and would not take the money as long as the lease is uncancelled, nor could the referee permit such a deduction. 3. The referee’s report in the action of ejectment of Levenson v. Herring will not help matters. The city is not bound by the referee’s report, not having been made a party in the action. The affidavits fail to show that judgment was ever entered in that action, and Levenson, or whoever claims under that tax lease, may discontinue that action or commence a new one, or, this being an action of ejectment, Mr. Levenson, even after entry of judgment, may have a new trial in that action at his option. The costs may have been paid and the action discontinued; at any rate no judgment appears to have been entered, and the three years for a new trial given by statute in actions of this character, do not begin to run until after the entry of judgment. In fact the referee’s report is of no legal effect at all as regards this motion.

      II. The appellant attaches undue importance to the release of Mr. Levenson. By it Mr. Levenson stipulates that if Mr. Gutman will take title, he, Levenson, will not take any proceedings to recover the possession of the premises under the tax lease, or to recover any damages for withholding possession of the premises, or any part thereof, or any sum for the use or occupation thereof. He, however, still reserves his rights thereunder, to recover the tax from the city. Should he succeed in the action against the city, he would recover from the city the tax of $2,690.48, on the ground that the sale of the premises to Ambrose K. Ely, Levenson’s assignor, for one hundred years for the non-payment of ■said tax, was illegal, as it is not likely Levenson could maintain a suit to invalidate the tax levy. This would leave the tax a lien upon the property, as the judgment, in the suit of Levenson, could only invalidate the tax sale, and the result would be that there would be upon the premises the unpaid tax of $2,690.48, with interest from 1869 to 1870, and the title to Mr. Gutman would, therefore, still be objectionable. The court certainly will not force an innocent purchaser at a judicial sale, to take the property with this heavy tax lien upon it. If Mr. Levenson had executed to Mr. Gutman an absolute assignment of the tax lease, the case might possibly be ■different, but the release in question is not sufficient to ■clear the title. .
   Per Curiam.

The order should be affirmed, with ■costs and disbursements on the opinions delivered by the learned judge at special term.


text:
    MAURICE MOORE, Respondent, v. PERRY P. WILLIAMS, Impleaded, &c., Appellant.

      Partnership deed to an individual member, on consideration flowing from the firm, when no resulting trust in favor of the firm as against judgment creditors of the individual member—Insolvent assignment by individual member before judgment recovered, and conveyance by assignee, when the foregoing result not affected by—Insufficiency of proof of record corrected at General Term.

    A deed of real estate situate in Kings county was made to William II. Guión, a member of the firm of Williams & Guión (composed of William H. Guión, John S. Williams and Stephen B. Guión), conveying to-him individually the fee. The consideration was furnished by the firm. The deed was made in manner and form desired by the firm. At the time it was made, Mr. Williams, one of the members of the firm, was deceased, and Ms representatives knew how the deed was made, and consented to its being so made. On February 2, 1884, subsequent to-the maMng of tMs deed, a judgment was obtained against William II. Gmon for an individual indebtedness. At-some time prior to August 1, 1884, the firm of Williams & Guión went into liquidation, and the firm in liquidation was composed of William II. Guión and Stephen B. Gmon. On August 1, 1884, William II. Guión conveyed the property with others to the defendants, in trust to sell and convey the samo, and out of the proceeds to pay to the legal representatives of John S. Williams (the deceased partner) a debt due to him by the firm of Williams & Guión in liquidation, and to pay the overplus, and to pay and transfer such of the property as might remain unsold to the firm of Williams & Guión in liquidation. TMs deed was recorded September 26, 1884. On the 18th day of January, 1884, William II. Guión assigned all his1 property real and personal to one Brown, in trust for the payment of' Ms debts, with power to sell his real estate. On August 1,1884, Brown, by deed, reciting the indebtedness of Williams & Guión to John S. Williams, deceased, a deed by the firm in liquidation to defendants of certain, real and personal property for the purpose of securing that debt, and also reciting that William II. Guión was on August 1, 1884, seised of the lands and premises in question in his own name, but in the right and for the use and benefit of the firm of Williams & Guión, and being-so seised thereof, did by two several deeds bearing date August 4, 1884, grant and convey the same to defendants in trust for the payment, of said debt—did in consideration of one dollar and the premises recited,. convey to defendants all right, title and interest which William H. Guión had on the 18th day of January, 1884, or which he, said Brown, by virtue of the assignment to him ever had in and to the properly in question to the defendants. In December, 1884, defendants made the contract referred to in the opinion to sell to plaintiff the Kings county property. On the trial it appeared that the creditors of William H. Guión had not been paid in full. On the trial the only proof of the judgment against William II. Guión was a transcript thereof, but a certified copy of the judgment roll was produced on the argument of the appeal. This action was brought to recover the deposit made at the time of the. signing of the contract, and the expenses of examining the title, and resulted in a judgment for plaintiff. „

      .Held, (1) That there was no resulting trust as against the judgment creditor in favor of the firm of Williams & Guión; that as to such creditor the fee was vested absolutely in William II. Guión, and the judgment against him was a valid lien on the premises, which rendered the title bad, and absolved plaintiff from taking the title. (2) That the assignment to Brown, and his conveyance to defendants could not, considering all the attendant and surrounding circumstances, vary the above result. (3) That the insufficiency of the proof of the Barnes judgment was cured by the production on the argument at General Term of the certified copy of the judgment roll.
    Before Sedgwick, Cli. J., Freedman" and Truax, JJ.

      Decided June 23, 1887.
    Appeal from judgment entered upon the verdict of •a jury rendered by direction of the court, and from •order denying motion for new trial.
    The facts sufficiently appear from the head note, and the opinions.
    On denying the motion for a new trial the trial judge wrote as follows:
    “ O’Gorman", J. :—In December, 1884, the defendants executed an agreement in writing for the sale to the plaintiff of certain real property in Brooklyn, which was ■.then subject to a mortgage for $22,500. In that agreement they bound themselves to execute and deliver to-the plaintiff, on receipt of certain payments to be made by him, a proper deed of ‘ bargain and sale for the conveying and assuring to him the fee simple of the premises, subject to the incumbrance aforesaid ’ (the mortgage-above referred to). The plaintiff, on examination of' the title, discovered that a judgment for $4,035 had been duly entered, at the suit of Demás Barnes against-William H. Guión, and that this judgment had been duly docketed in Brooklyn, in February, 1884, while said Guión was owner in fee of the property, by an absolute deed to him, duly recorded. Barnes, the judgment-creditor, on being addressed on the subject, refused to-satisfy the judgment or release the property of any lien, because of the judgment.
    “ The plaintiff has brought this action for the purpose-of recovering the money ($250) paid by him, as part of the consideration for the sale, and for expenses of examining title, on the ground that the defendants failed to give him such title as he was bound under their agreement to accept. Such an action is proper, on the authority of Bruner v. Meigs, 64 N. Y. 515.
    “The defense is, that at the time the judgment was-docketed and while William H. Guión was owner of the-property, by deed vesting in him the fee simple-absolute, and then duly recorded, he was nevertheless, at that time, only trustee for the firm of Williams & Guión, of which, he himself was the surviving partner; that the consideration for the deed to him in fee simple was furnished by the firm, and that the property held by him under the deed, formed, in equity, part of the assets of that firm ~ that the judgment against him was for non-payment by him of a loan, made to him individually by the judgment creditor; and that it never attached as a lien to the property in question.
    “ There is sufficient evidence that the deed in fee-simple absolute, under which William H. Guión took title, was executed to him in the manner and form. desired by the firm of Williams & Guión; that the representatives of the deceased partner were well aware that such deed had been so made to him, and consented to its being so made. The authority of William H. Guión, and the only other surviving partner, was enough to bind the firm of Williams & Guion as to the propriety of the transaction. Tarbell v. West, 86 N. Y. 286.
    . “ It also appears that he conveyed the property to the defendants, after the docketing of the judgment and for the benefit of that firm.
    “ Until the recording of that conveyance, on September 25, 1884, there was nothing on record showing any conveyance by Guión, or by any one else, to that firm, or any lien on the land, in favor of that firm.
    “ There is, in this case, therefore, no element of concealment on the part of Mr. Guión as to the nature of the deed under which he held, and no suspicion of any unfair or questionable dealing in the transaction on his part.
    “In this form of action the burden is on the plaintiff to prove affirmatively that the agreement to convey to him has been violated by the defendants, and that the title which they were able to give him was not such as he was bound to receive. Bruner v. Meigs (supra). There are cases which seems to go further, and to require that in actions of this kind the plaintiff should prove affirmatively that the title offered him was a bad title. Bayliss v. Stimson, 53 Super. Ct. 225 ; Methodist Church v. Thompson, 52 Super. Ct. 328 ; Page v. McDonnell, 55. N. Y. 299; Lawrence v. Miller, 86 Ib. 131. Whether the views entertained in these cases have not been or may not be questioned or limited in their full effect, need not now be questioned. Assuming them to be of full binding authority, the question in the case at bar is, whether or no, on the evidence, the title offered to the plaintiff is a bad title, and it would be a bad title if the judgment could have been and could now be put in force against the land. Delavan v. Duncan, 49 N. Y.
      487; Cockcroft v. N. Y. & H. R. R., 69 Ib. 206; Ocean Nat. Bank v. Olcott, 46 Ib. 16, et seq.; Sturtevant v. Sturtevant, 20 Ib. 40.
    “ If there were, at the time of commencing the action, a valid lien or incumbrance on the land to the amount of $4,035, which lien and incumbrance might, at the option of the judgment creditor, be put in force and collected out of the land, then the title was bad. The agreement called for only one incumbrance, that is, the mortgage of $22,500. The existence of any other valid incumbrance, so far invalidated the title the defendants were bound to (rive.
    “It is contended by the defendant that it could not be so put in force, because W. H. Guión was not, during the life of the judgment, owner of the land. The language of the section of the Code (1251), is that the judgment shall be a charge for ten years after filing the judgment roll on the real property and chattels real, which the judgment creditor has at the time, etc. That he was the apparent owner—that for all that was disclosed on record, the title in fee simple absolute was vested in him, was beyond question. That there was nothing on record from which the judgment creditor could have had notice or even cause to suspect that any equitable claim on the part of the firm of Williams & Guión existed, is beyond question. That William H. Guión had, at the time the judgment was docketed, the right and power to sell the property to whom he pleased, or for such price , as he pleased, and give to his vendee a good title in fee simple absolute, is beyond question.
    “ The defendant’s contention is that, notwithstanding all that, there existed all the time that Guión held the property a secret, equitable title in the firm of Williams & Guión, which rendered the judgment ineffectual as a lien on the land. The plaintiff depends on section 51, Statute of Uses and Trusts, 1 R. 8., which forbids the creation of a trust in favor of a person supplying the consideration for the purchase of land, when the title is in another. By section 53, this prohibition is made not to apply to cases where the title is taken in favor of another than the person supplying the consideration, without the knowledge or consent of the latter. The facts in the case at bar are not such as bring it within the influence of the latter section, and it will be found, 1 think, that the cases, cited by the learned counsel for the defense, have in them some element of fraud or concealment, from which it appeared directly0 in evidence, or was properl)' inferred that the person paving the consideration was ignorant of the fact that the title to the land was taken in the name of another, and for that reason an equitable lien on, or an equitable title to the land existed by implication, in the person paying the consideration. This feature of secrecy and fraud against which protection is afforded in section 53 above mentioned, existed and was prominent and controlling in Lounsbury v. Purdy, 11 Barb. 493; Siemon v. Schurck, 29 N. Y. 598, 612, 615. In Delmonico v. Guillaume, 2 Sandf. Ch. 368, the contention was wholly between partners, and no question as to any outside lien was raised. In Tarbel v. West, supra, the contention was as to the rights of a mortgagee of property, known to him to be partnership property. It was there held that where the legal title to partnership lands is vested in one partner, his bona fide grantee or mortgagee takes his title free from equities of the other partners or of copartnership creditors. But if he have notice that the land is partnership assets, he takes subject to the equities (Ib. 287). Staats v. Bristow, 73 N. Y. 264, is not in point. There a purchaser at a sheriff’s sale of the property of the judgment debtor, was held to have bought, not certain special property belonging to a firm of which the judgment debtor was a partner, but only his interest in the partnership surplus. Van Brunt v. Applegate, 44 N. Y. 544, concerned only the effect of a conveyance by a partner of his undivided half in real ■estate, belonging to the firm, and throws no light on the question in contention in the case at bar. The other-cases cited by the learned counsel for the defendant do-not seem to be in point or controlling.
    “It is, I think, clear on the authorities, that the-defendants’ agreement entitled the plaintiff to a deed that would vest in him a title to the premises free of all incumbrance but the mortgage, and could only be per- ■ formed by giving a deed conveying such title. Delavan v. Duncan, supra. Such a title has not been offered to the plaintiff by the defendants, and because of their failure and default, plaintiff is entitled to damages against them, which damages are only the return of the deposit paid by plaintiff on account, and his expenses in examining the title.
    “ I see no reason to doubt that the judgment became' under section 1251 of the Code, a valid charge and lien on the land when docketed, and is still a lien and can be put in force by the judgment creditor, and will continue’ to be a lien for ten years thereafter, unless satisfied or released.
    “The defendants’ motion for a new trial is denied,, with ten dollars costs.”

      Stephen G. Williams, attorney, and G. Zabriskie, of counsel for appellant, on the questions considered in the-opinion, argued:
    I. Guion’s title as trustee was a bare legal title, and was not subject to the liens of judgments on his individual debts. Judgments against the trustee are not liens upon a mere legal title where the equitable title is in others. Ells v. Tousley, 1 Paige, 280; Averill v.. Loucks, 6 Barb. 19, 26; Lounsbury v. Purdy, 11 Barb. 490 ; Siemon v. Schurck, 29 N. Y. 598.
    II. The interests of the partners in the land are not real but personal property. The only legal estate or title was that held in trust. Delmonico v. Guillaume,. 2 Sandf. Ch. 366; Van Brunt v. Applegate, 44 N. Y. 544.

      III. The only interest that Mr. Guión had in the premises which could be subjected to the payment of his debts was his equitable interest as partner in all the assets of the firm, and his creditors could reach that, interest only by an action to wind up the concern, sell the partnership property, pay the debts out of the proceeds, and take his share in what should be left. Menagh v. Whitwell, 52 N. Y. 146; Tarbell v. West, 86 Ib. 280; Staats v. Bristow, 73 Ib. 264.
    IV. In the meantime he, as partner, had power to sell and dispose of any of the assets of the firm, including real estate,' for partnership purposes and for the payment of partnership debts. The proceeds of such sales would be personal property of the partnership, as the land itself had been, and would be subject to pursuit by creditors, but the, land would not. Shanks v. Klein, 104 U. S. 18; Van Brunt v. Applegate, supra; Delmonico v. Guillaume, supra.

    V. It follows that judgments against the partners on account of firm indebtedness take precedence of prior mortgages or judgments against the several partners on their individual debts. Martin v. Wagener, 1 T. & C. 509 ; Page v. Thomas, 43 Ohio St. 38.
    VI. The surviving partners of a firm severally have the right to sell or dispose of the partnership assets for the payment of partnership debts or other partnership purposes, and the purchaser of real estate so conveyed takes title superior to the title of a purchaser under judgments against the partners for their individual debts, and superior to all prior claims of individual creditors. Meily v. Wood, 71 Pa. St. 488; Robbins v. Fuller, 24 N. Y. 570; Van Doren v. Horton, 19 Hun, 7.
    VII. Barnes, as a judgment creditor of Guión, has no greater rights as against partnership real estate than those which he would get under a conveyance by Guión of such real estate as security for Guión’s individual indebtedness, with full notice of all legal and equitable rights belonging to third persons. Brown v. Pierce,. 7 Wall. 205; Averill v. Loucks, 6 Barb. 27; Matter of Howe, 1 Paige, 124.
    VIII. Whatever individual interest Mr. Guión acquired by the conveyance from the executrix of his deceased partner, he assigned to Brown prior to the recovery of the Barnes judgment, and Brown has released to the defendants.
    IX. The learned court below erred in supposing, as apparently the court did suppose • that, under the circumstances disclosed by the evidence, no trust was established in Mr. Guion for the firm of Williams & Guion; and the opinion of the learned court, apparently, is based upon that provision of the statute (1 R. S. 728, § 51) which abolishes trusts resulting from the payment of the consideration by one person where the title is taken by another; and reference is made in the opinion to cases arising under that statute, which have been excepted by § 53, where the alienee named in the conveyance shall have taken it as an absolute conveyance in his own name without the consent or knowledge of the person paying the consideration,/ or in violation of some trust shall have purchased the lands so conveyed with moneys belonging to another person. Such, however, is not the case here. 1. The statute in question relates to trusts in real property; whereas, this is a trust of personal property, and not within the statute. 2. The statute excepts from its application creditors of the parties who pay the consideration; and the evidence in this case shows that the estate of John S. Williams was a creditor of the firm of Williams & Guión, and that the consideration paid for the conveyance of this property to Guión by Moore was the Staten Island farm which belonged to the firm of Williams & Guión. 3. The case of a firm taking a conveyance of real estate in the name of one of their members is not within the statute; for the consideration is not paid by one and the title taken in the name of another, but the consideration is paid by all, including him who takes the title. 4. It has long been the rule in this state that parol evidence-is competent to show that real estate, held upon an apparently absolute title in the name of one partner, is in reality partnership property. It would be a startling innovation upon this doctrine and upon the universal practice of business men if this rule should now be thought open to question. Fairchild v. Fairchild, 64 N. Y. 471; Buchan v. Sumner, 2 Barb. Ch. 165; Collumb v. Read, 24 N. Y. 505; Rank v. Grote, 50 Super. Ct. 275. 5. Barnes, as a judgment creditor of Guion, cannot claim any benefit of the statute, because, as a judgment creditor, he is not a purchaser for value. 1 R. S. 728, § 94; Ib. 756, § 1; Thomas v. Kelsey, 30 Barb. 268, 275; Cary v. White, 52 N. Y 138.
    X. The court erred in admitting in evidence, as proof of the Barnes judgment, the transcript from the clerk’s docket. The proper way to prove a judgment is try the production of the record or a verified copy thereof. Archer v. Furniss, 4 Redf. 88; Lansing v. Russell, 3 Barb. Ch. 325; Baker v. Kingsland, 10 Paige, 366 ; Handy v. Greene, 15 Barb. 601.
    Davis, Cohen & Mc William, attorneys, and Maurice S. Cohen, of counsel for respondent, on the questions considered in the opinion, argued:
    I. The defendants endeavored to maleé a resulting trust in favor of Williams & Guion. But this they may not do. The argument of the defendants is that the consideration for the conveyance of this property to William H. Guion from Anson B. Moore and George E. Apsley, was paid by Williams & Guión, and that William H. Guión, therefore, held the title in trust for Williams & Guión. Even though we concede the premises, the law forbids any such conclusion. 1 R. S. 728, § 51. Even under § 52 no trust could result in favor of Williams & Guión, who, defendants’ counsel claim, paid the consideration. Garfield v. Hatmaker, 15 N. Y. 483. And the defendants cannot claim the benefit of this section. The Ocean Nat. Bank v. Olcott, 46 N. Y. 12, 17.
    II. The insufficiency in the proof of the Barnes judgment is now cured by the present production of a certified copy of the judgment roll. Williams v. Wood, 14 Wend. 126 ; Carter v. Beckwith, 82 N. Y. 83 ; Jarvis v. Sewell, 40 Barb. 455; Ritchie v. Putnam, 13 Wend. 524; Robert v. Good, 36 N. Y. 408.
   Per Curiam.

The opinion rendered by the. learned judge below, on denying the motion of the defendants for a new trial, is substantially correct. The assignment to Brown, and the release by Brown to the defendants, cannot vary the result when all the attending and surrounding circumstances are considered. The insufficiency in the proof of the judgment recovered by Barnes, has been cured by the production of a certified copy of the judgment roll.

The judgment and order should be affirmed, with costs.