author: LeaRNEd, P. J.:

text:
    ROBERT S. HALL, Respondent, v. JOHN M. STONE, Appellant.

      Mutual accounts — statute of limitations — an assignment of a balance of account to a third person doses a mutual account formerly existing between pa/rties.

    A running- business account had existed between two persons named Hall and Stone. In February, 1879, Hall stated a balance against Stone, and in the same month made an assignment and transferred this balance to his assignee ; and resumed business after an interval of some months.
    Subsequently the assignee reassigned the said balance of this account to his assignor. In 1884 Stone made a small purchase of Hall.

      Held, that by said assignment made by Hall to his assignee the mutual account which had existed between Hall and Stone was closed, and that the statute of limitations began to run against said balance of account from the date of its last item.
    That the purchase by Stone in 1884 did not revive the former condition of mutual accounts between himself and Stone, or take the said balance of account out of the statute of limitations.

      Appeal by the defendant, John M. Stone, from a judgment of the Warren County Court, entered in the clerk’s office of Warren county on the 22d day of July, 1889, in favor of plaintiff, which affirmed a judgment of a justice of the peace in favor of the plaintiff.

      Coyle dé Cunningham, for the appellant.

      8. H. Bevins, for the respondent.
   LeaRNEd, P. J.:

This action was commenced in Justice’s Court January, 1889, to recover twenty-five dollars for goods sold in a country store. The defendant pleaded payment, statute of limitations and counter-claim for services of about the same amount. Plaintiff’s demand consisted of about forty items, defendant’s of six.

The case was tried before a jury which rendered a verdict for plaintiff of seventeen dollars and fifty-five cents. The defendant appealed to the County Court and that court affirmed the judgment. The defendant now appeals to this court. The plaintiff’s items begin June 29, 1876, and end December 24, 1878, except as mentioned hereafter. In February, 1879, the plaintiff made a balance-of the account against defendant by crediting to defendant certain cash and charges therein, which balance was seventeen dollars and fifty-nine cents, and in that month he made an assignment and turned over the balance to the assignee. He did no business till June 1, 1879. And at some time, exactly when does not appear, the account, as he testifies, was assigned back to him. Since that time the only charge for goods sold on his books is on March 8, 1884, for a ham, two dollars and eighty-foiir cents. There is what is called a charge for eight years’ box rent four dollars, which amount was specifically paid. This is not an article sold by defendant, but appears to be for use of post-office box. The plaintiff claims by the charge for the ham to save the effect of the statute of limitations. By the assignment from the plaintiff in February, 1879, the mutual accounts, between plaintiff and defendant (if such accounts ever existed) were closed. The balance, whatever it was, became the property of the assignee. In the view most favorable to plaintiff the statute of limitations began to run from December 24,1878, the date of the-last item in his account, and the right of action was barred in December, 1884.

It was beld in Green v. Ames (14 N. Y., 225), tliat where there is a mutual, open and current account between parties, and one of them purchases from a third person and holds an open account against the other without notice to or recognition of its validity by the latter, it does not become a part of the mutual account between them within the statute of limitations; that the demand so purchased is barred in six years from the time it accrued to the assignor, though there existed a mutual account between the assignee and the other party.

Now, to apply that case to the present. Let us assume (which is not shown) that from June, 1879, down to March 8, 1884, there was a mutual account between these parties. In fact the only account is the ham sold by plaintiff that last mentioned day, and the defendant’s charges for horse hire. The plaintiff buys from some person whose name is not given, called plaintiff’s assignee, this balance of account of seventeen dollars and fifty cents against the defendant. Such balance, we have already seen, would be barred at least six years from February, 1879, if not from December 24, 1878. Now, the plaintiff cannot by this purchase make that demand a part of his mutual accounts between himself and defendant, as is said in the case last cited. This must be true, although the account so purchased by the plaintiff had once belonged to him. For by his assignment to his assignee it had ceased to be a part of the running and mutual accounts between him and defendant. It became the property of another person. The defendant did not continue to deal with the plaintiff with reference to a running account which no longer belonged to plaintiff. If, therefore, another running account arose between the parties the plaintiff could not by purchasing this old demand make it a part of such running account. Of course, still less could he by such purchase save the running of the statute, if there really existed, subsequently, no mutual account.

We may suppose that when the plaintiff assigned the balance alleged to be owing from defendant, defendant knew of this or was notified of it. He knew then that there could no longer be dealings, between him and plaintiff on the basis of, and with reference to mutual accounts.

The learned county judge distinguished this case from the one cited on the ground that the assignment spoken of by plaintiff did not divest this title, but that the demand assigned was only security for his creditors. ~We do not see that the case shows what was the nature of the assignment of this account. But if it was an assignment for the benefit of creditors, still, it transferred the title to the assignee and closed the mutual accounts between plaintiff and defendant. And there is no evidence that after the demand was reassigned to plaintiff there was any recognition of it by the defendant, or any agreement between him and the plaintiff that it should be an item in the alleged running account.

The plaintiff urges that even if the claim assigned by the plaintiff is barred, still there must be an affirmance for the sum of two dollars and eighty-four cents:, the price of the ham. But the recovery was for seventeen dollars and fifty-five cents, while the amount of the balance assigned was seventeen dollars fifty-nine cents. Evidently, therefore, there was no recovery for the ham. There are several other questions raised in this case which we deem it unnecessary to discuss.

The judgments of the County Court and justice of the peace must be reversed, with costs.

LaNhoN and MayhaM, JJ., concurred.

Judgment of County Court and of justice of the peace reversed.


source: Caselaw Access Project

author: Dwight, P. J. :

license: Public Domain

text:
    FREDERICK B. POTTER, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.
    A railroad corporation, the lessee of (mother road, is not hound to maintain division fences between the leased trade and leased land lying adjacent thereto.

    The Revised Statutes (8R. S. [8thed.], 1799) require railroad corporations leasing other lines to maintain division fences, and for a failure to comply with this requirement the railroads are made liable for injuries to stock.
    'The New York Central and Hudson River Railroad Company, as lessee of the New York, West Shore and Buffalo Railroad Company, was the occupant of a strip of land, of twelve acres, adjacent to the tracks of that road, and of the width of ten rods which it leased, and its lessee sub-let the strip, except half an acre thereof, to a party, who tethered a horse upon this piece of land. The horse broke loose and was injured on the railroad track through fright, induced by an approaching train.
    In an action brought by the sub-lessee to recover the damages resulting from the injury to the horse:

      Held, that the railroad company, the lessee, was not liable.
    That there was no obligation resting upon it to separate its own land from the track by a fence, and that the plaintiff, who leased the land, was bound to take it as it was and use it for the purposes for which it might safely be employed in its unfenced condition.
    Appeal by the defendant, the New York Central and Hudson River Railroad Company, from a judgment of the Monroe County Court, entered in tlie clerk’s office of said county on the 4th day of' December, 1890, affirming a judgment of a Justice’s Court in favor of the plaintiff for twenty-six dollars and thirty-one cents.

      A. II. Harris, for the appellant.

      II. G. Pierce, for the respondent.
   Dwight, P. J. :

The defendant, as lessee, operating the lines and occupying the-real estate of the "West Shore Railroad Company, leased to one Hayes a strip of land ten rods in width and containing twelve acres,, belonging to that company, and lying alongside its tracks in the town of Perinton, which was not separated from the track by any fence. Hayes, in 1886, sub-let all but half an acre of the strip to-the plaintiff, who occupied it for farming purposes. His horse,, which was tethered on the strip for grazing, had broken loose and wandered onto the brack when one of defendant’s trains came in sight. The horse was frightened by the approaching train and ran before it, on the track, until he came to a bridge, where he fell between the ties and broke his leg. The engineer stopped the train as soon as possible after seeing the horse on the track, and before-the engine reached him.

The only question in the case is whether, under these circumstances, the railroad company must fence its own land lying along its track from the track itself, or, in default of doing so, be liable to-its own tenant for loss of cattle straying from such land onto its. track. We think not. There seems to be no American case in point, and the English authorities, under a statute similar to our own, are against the proposition. (Roberts v. Great Western Ry. Co., 4 C. B. [N. S.], 504; Marfell v. South Wales Ry. Co., 8 id., 525; 2 Sher. & Redf. on Neg., 434.)

In the case last cited the defendant owned a strip of land adjoining its right of way, and separated from it only by a fence which had become broken down. On the strip was a tram-way used by the defendant, and which it permitted the plaintiff to use for a consideration. A horse of the plaintiff drawing a car on the tram-way became frightened by a passing train, and breaking loose from the car-escaped onto the track of the defendant and was injured. Eelb, C. J.,, said : “ It is clear that the defendants are under no obligation to put-any fence on their own land. The statute which obliges them to fence against the land of the adjoining owner has no application in respect of their own. * * * If the tram-way was without any fence, it is clear that the defendants might lawfully so use it, and if any one choose to have the use of it he would be entitled to it as it was, and would have no right to complain if he found it dangerous and sustained damage for want of a fence. * * * If the fence was known to the plaintiff to be out of repair and broken down, and he choose to hire the use of the tram-road in that state, there would be no contract creating a duty to keep the fence in repair.”

This reasoning commends itself to our judgment as correct. The defendant might, no doubt, leave the strip of land unfenced from the track so long as it was made use of for its own purposes, and when it rents it to another occupant, the latter must take it as it is and be content to put it to uses for which it may be safely employed in its unfenced condition.

We are unable to see that a case was made of statutory liability on the part of the defendant to the plaintiff, and are of opinion that the judgment of the County Court and Of the justice must be reversed.

Macomber, J., concurred.

Judgment of County Court of Monroe county and of the justice of the peace appealed from reversed, witli costs.


author: Dwight, P. J.:

text:
    ABRAM T. KERR and Others, Respondents, v. ANNA DILDINE, as Administratrix of ZACHARIAH DILDINE, Deceased, Appellant, Impleaded with EDWARD P. KARR.

      Demurrer — a party who argues his demurrer and opposes the entry of final judgment is not in default — effect of his appeal from the final judgment — creditor’s suit — unsatisfied execution.

    A demurrer to a complaint in an action was served by a defendant, Zachariah. Dildine, which was overruled and judgment thereon was ordered for the plaintiffs, with leave to the party demurring to answer over on payment of costs. An interlocutory judgment was entered, which directed that the final judgment to be entered, in case Dildine did not answer, should be settled by the court. Dildine neither answered nor paid the costs, nor appealed from the interlocutory judgment. Before entry of final judgment lie died, and liis administratrix was substituted as a defendant. A subsequent application was made for final judgment. It was opposed by the administratrix, but was granted, and from this judgment she appealed.

      Held, that tlie defendant bad not been in default at any time, baying argued bis demurrer and opposed the entry of final judgment.
    That be was not required to answer, and bad a right to reserve bis appeal until final judgment was entered, which, as indicated by the notice of appeal, brought up for review the interlocutory judgment.
    To support an action to reach equitable interests or assets, which are not the subject^ of levy and sale under execution, the remedy at law, by its ordinary process, must be first exhausted. This can be shown only by the return of an execution unsatisfied.
    Appeal by the defendant, Anna Dildine, administratrix of Zachariah Dildine, deceased, impleaded with Edward P. Karr, from a judgment, entered in the clerk’s office of Erie county on the 24th day of June, 1890, in favor of the plaintiffs, with notice that said defendant intended to bring up for review upon such appeal an interlocutory judgment, dated the 30th day of December, 1886, and an order overruling the defendant’s demurrer to the complaint, dated the 30th day of October, 1886.

      De M. Page, for the appellant.

      W. F. Maelcey, for the respondents.
   Dwight, P. J.:

The action was brought by the plaintiffs, as judgment-creditors of Edward P. Karr, against him and Zachariah Dildine, to set aside a chattel mortgage executed by Karr to Dildine, as fraudulent and void as against the plaintiffs’ - judgment and the execution thereon issued, and in aid of such execution. The defendant Karr, made no defense or appearance in the action. The defendant Zachariah Dildine demurred to the complaint on the ground, •among others, that it did not state facts sufficient to constitute a cause of action. The issue of law thus joined was tried at Special Term and an order was made overruling the demurrer and directing judgment thereon in favor of the plaintiffs, but with leave to the defendant Zachariah Dildine to withdraw his demurrer and answer over in twenty days, on payment of costs; and an interlocutory judgment was entered accordingly, which directed that the final judgment to be entered in case the defendant did not answer,, should be settled by the court.

The defendant Zacliariali Dildine did not appeal from tbe interlocutory judgment, nor pay the costs, nor serve an answer to tlie. complaint, but before the entry of final judgment, he died and the defendant Anna Dildine, as administratrix of his estate, was substituted for him as defendant in the action.

Subsequently the plaintiffs moved at a Special Term held by the same judge who granted the interlocutory judgment, for a settlement of the fipal judgment to be entered in the action, which motion, as the judgment recites, was opposed by counsel for the defendant, and the final judgment as thereupon settled by the court, was entered by the plaintiffs. From that judgment this appeal was-taken.

The objection that the appeal .will not lie because the judgment-was taken by default is not at all tenable. The defendant has not been in default at any stage of the action. lie duly served and argued his demurrer and appeared to oppose the entry of final judgment. His defense has always been on the law, and he served no answer because he had no answer to make to the facts as alleged in the complaint. Those facts were all admitted by his demurrer, and they remain admitted for all the purposes of the action. His sole pleading was his demurrer, and upon that he insists. He was not required to appeal from the interlocutory judgment; he had a right to reserve his appeal until the final judgment was entered (Code of Civil Pro., § 13T6); and there were manifest advantages in doing so. The final judgment was not taken by default; on the contrary, the defendant appeared and opposed the application therefor. In the cases principally relied upon by the respondent there was not only failure to answer but failure to oppose the application for judgment, so that in those cases judgment was, in fact, taken by default. (Flake v. Van Wagenen, 54 N. Y., 25; Innes v. Purcell, 58 id., 388; Greenleaf v. Brooklyn, etc., R. R. Co., 37 Hun, 436.)

But the practice adopted by the defendant is sustained by affirmative authority. (De Silver v. Holden, 6 Civ. Pro. Rep., 121; Dick v. Livingston, 41 Hun, 455; Sheridan v. Sheridan Electric-Light Co., 38 id., 396; Patterson v. McCunn, id., 531; Smith v. Rathbun, 88 N. Y., 660; Raynor v. Raynor, 94 id., 248.)

There can be no question but that the appeal was well taken in this case, nor that it brings up for review the interlocutory judgment which overruled the defendant’s demurrer, and held the facts stated in the complaint sufficient to establish a cause of action in favor of the plaintiffs against the defendant Zachariali Dildine.

That question we regard as already decided in this court, adversely to the plaintiffs’ contention, by the decision rendered in the same action, on an appeal by the defendant from an order denying his motion to vacate a preliminary injunction granted therein. The decision is reported in 6 New York State-Reporter, at page 163. In that case the opinion of the court, by Bradley, J., considers the question in two aspects: (1.) Whether the allegations of the complaint show the chattel mortgage in question to have been void as to creditors from its inception, and, therefore, the legal title to the property as to creditors remained in the judgment-debtor; and (2.) Whether they show an interest in the property remaining in the mortgagor which could be reached by his creditors in equity.

Both of these questions were answered by the court in the negative. In respect to the first question, it was held that, so far as appeared by the complaint, the mortgage was valid in its inception as against creditors,” and could not be set aside as fraudulent. It was also held with equal distinctness that a cause of action was not made out in the other asj>ect of the case for the want of an allegation that an execution had been returned unsatisfied. The language of the opinion on that subject is as follows: The facts as alleged by the plaintiffs seem to go in support of an equitable remedy and relief. But to suppoit an action to reach equitable interests or assets, „which are not the subject of levy and sale by execution, the remedy at law by its ordinary process must be first exhausted. This can be evidenced only by the return of execution unsatisfied, which for the purpose of such equitable remedy is a condition precedent; ” citing Estes v. Wilcox (61 N. Y., 264) and Adee v. Bigler (81 id., 349). These conclusions seem to cover the whole easej and they must determine the law of the case, so far as this court is concerned, upon the main question raised by this appeal.

The final and interlocutory judgments appealed from must be reversed, with costs, the. demurrer allowed and judgment ordered for the defendant thereon, but witli leave to the plaintiffs to serve an amended complaint within twenty days, upon payment of the costs of the demurrer and of this appeal.

Maoombeb, J., concurred.

Final and interlocutory judgment appealed from reversed, with costs; the demurrer allowed and judgment ordered for the defendant thereon with costs, but with leave to the plaintiff to serve an amended complaint within twenty days on payment of the costs of the demurrer and of this appeal.


author: MaCombek, J.:

text:
    FERDINAND GRIEBEL, Appellant, v. THE ROCHESTER PRINTING COMPANY, Respondent.

      Libel — the publication of matter libelous per se — substantial damages where no special damages are shown.

    The publication in a newspaper of an article charging that goods were obtained under false pretenses is libelous per se; and although the publication was a mistake; was caused by the error of a reporter; was made without intent to injure the person charged with the act; and no special damages are shown to have resulted therefrom, the party aggrieved is still entitled to recover substantial damages.
    Appeal by the plaintiff Ferdinand Griebel from a judgment, entered in the clerk’s office of Monroe county on the 13th day of May, 1890, in favor of the defendant for costs, after a trial at the Monroe Circuit before the court and a jury; also from an order, entered in said clerk’s office on the 3d day of June, 1890, denying the plaintiff’s motion for a new trial upon the minutes; and also from an order, entered in said clerk’s office on the 2d day of June, 1890, denying plaintiff’s motion for a new trial upon the ground of newly discovered evidence.

      Ivan Powers, for the appellant.

      Eugene Van Voorhis, for the respondent.
   MaCombek, J.:

At the trial of this cáse, which is an action for libel, a verdict of a jury was rendered for the defendant. The alleged libel consisted of an article printed in a newspaper known as the Rochester Democrat and Chronicle, of which the defendant is the proprietor, on the 2d day of April, 188S, as follows:

“UNDER False Pretenses.

“Detectives Furtherer and Kavanagh, yesterday, arrested Ferdinand Grueble on the charge of obtaining goods under false pretense. Bartholomew Connors, of Faber street, who swore out the warrant, claims that Grueble went to his house while lie was away, one day last week, and represented to his wife that he had been sent after her husband’s watch. On these representations she handed over the time-piece, and this is what leads to the difficulty.”

The complaint alleges that the person in such article, called Ferdinand Grueble is the plaintiff, who is well known to many readers of that newspaper. The defense is, .in substance, that the publication was a mistake, caused by the error of the newspaper reporter, who, by inadvertence, had charged Griebel with the crime under a complaint of Bartholomew Connors, while, in fact, Bartholomew Connors was the accused person apd Ferdinand Griebel the complainant.

Upon the trial a point was made that the plaintiff was not the same person as the one mentioned in the newspaper article. But it seems to us that there was no merit in that claim, because, under the evidence, all of the plaintiff’s acquaintances would necessarily understand from the article that he was the person referred to. If it be true, as is claimed by the learned counsel for the defendant, that the verdict of the jury was based upon the proposition that the Ferdinand Griebel mentioned in the title of this action, and the Ferdinand Grueble mentioned in the article, as published, are not the same persons, that conclusion was wholly unsupported by the evidence and should not be permitted to stand. But it is quite apparent that the jury reached no such result.

The learned justice at the circuit charged the jury that: “ If this article in question was designed to' affect this plaintiff — if the plaintiff was the person meant by the article — the article was libelous; it charged the plaintiff with the commission of an offense which, lie had not committed. The publication of that article is. presumably malicious, but -the malice presumed by its publication may be entirely overcome by evidence that none was intended by its publication. If you find that a libel was published by defendant against the plaintiff, but that it was published without any malicious intent, then, although it would be your duty to find a verdict in favor of the plaintiff, yet, under these circumstances, he would be entitled to recover only nominal damages, because he has not shown that he has received any special damage by reason of the publication.”

At the close of the charge the counsel for the plaintiff asked the court to charge as follows: That if they (the jury) should find that, the publication was made without malice, but as a matter of pure mistake and without malice, the plaintiff was still entitled to-damages which would compensate him for whatever damage was done to his reputation.”

The court, in reply to this request, said “ there is no evidence of any damage which the plaintiff has sustained. I must refuse to charge as you request.” To this refusal an exception was taken. A further request was made that “the defendant had no right to make a mistake which would substantially injure a person without answering in damages to that person.” This proposition was also declined by the court in the following terms: “ The court declined to charge in the language requested.” To this, also, there was exception taken. Exception was also taken to the portion of the charge in chief as above quoted.

In respect to the proposition that the plaintiff was not entitled to substantial damages, provided the publication was a mistake, and was made without any intent to injure the plaintiff, it is, perhaps, sufficient to say that it is counter to the decision in the case of Morey v. The Morning Journal Association (17 N. Y. St. Rep., 69), which was affirmed by the Court of Appeals in 123 New York, 207. It was there held that a publication, though made through a mistake of name, which charged the plaintiff with a threatened suit for breach of promise of marriage, was libelous %>er se, and that the plaintiff was entitled to recover substantial damages without averment or proof of any special damage, and that the publication necessarily disgraced the plaintiff.

The other ground of error, namely, in respect to the affirmative legal proposition contained in the charge in chief is probably included in the general doctrine of the case already cited. In Sanderson v. Caldwell (45 N. Y., 398), it is stated that the law not only imputes malice to the defendant who publishes libelous matter, but that it also presumes that damages have been sustained by the plaintiff in consequence of such unlawful publication-; and in answer to the argument of counsel made in that case to the effect that the plaintiff was entitled to nominal damages only, and a verdict for nominal damages would be a vindication of its character. Judge Andeews said (p. 406): In such a case a nominal verdict would be a denial of justice, and the court was not bound to assent to the suggestion of the defendant that such a verdict might be given. Nor would such a verdict have been a vindication of the plaintiff. It would have established that the charges were false, but at the same time it would have left it to be inferred that the plaintiff had no character to lose.’'

For the errors above mentioned, it follows that a new trial should be ordered. This conclusion renders it unnecessary to consider other matters thought by counsel to be involved in the record.

Dwight, P. J., concurred.

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


author: MaooMbeR, J.:

text:
    VALENTINE FROMM, Appellant, v. DANIEL IDE, Respondent.

      Pleadings — what allegations set forth a cause of action for negligence.

    An action, tile complaint in which charges that a person, while engaged in the discharge of his duties as street superintendent, under the direction of a town hoard of health, so negligently and carelessly dug a ditch; intended to carry ofE water from a highway, that the flooding of the premises of the complainant was increased rather than diminished thereby, is not an action upon contract.
    It is an action for negligence, charging that a person, while engaged in a lawful business, was guilty of an omission of the duty which he owed the complainant, to perform the work in a reasonably skillful manner.
    Appeal by the plaintiff, Yalentine Fromm, from a judgment, entered in the clerk’s office of Monroe county on tlie 6th day of May, 1890, dismissing the complaint, with costs, after a trial in the Monroe County Court before the court and a jury; and also from an order, entered in said clerk’s office on the same day, denying amotion for a new trial.

      Ivan Powers, for the appellant.

      Oostich c& Gummmgs, for the respondent.
   MaooMbeR, J.:

This action was brought to recover damages for flooding the lands of the plaintiff, under allegations of negligence in the construction of a certain ditch, by reason of which the rental value of the plaintiff’s lands, during the years 1888 and 1889, on Norton street, in the town of Irondequoit, was materially lessened.

It appears that the defendant is the commissioner of highways of the town of Irondequoit. The plaintiff had notified the board of health of that town that water stood upon his premises coming from the highway. Shortly thereafter the defendant came to the plaintiff and said he had been sent there by the board of health, and was about to drain off the water. There were two other persons in the vicinity similarly situated with the plaintiff, and the. drainage was to relieve them, as well as the plaintiff, of the water coming from the highway.

The plaintiff’s evidence tended to show that the defendant said he should charge each of these persons twenty-five dollars for making the necessary digging to carry off the water; that thereupon he dug out the ditch, but, at about the time he was finishing it, he was notified that it would be inadequate for the purpose. In the fall following this work, and also in the spring thereafter, the plaintiff’s premises were more seriously flooded than ever before, with dirty and unwholesome water. There was evidence showing that the east end of the ditch was higher than the west end, though it was designed to carry the water from west to east. Under these facts the plaintiff offered to prove his damages, when his progress in the trial was arrested and he was nonsuited, apparently upon the ground that the .action was for a tort, and that the proof showed that a recovery could be had only for a breach of contract.

This, however, seems to us to have been a misconception of the scope of the action. In brief, it is that the defendant, while engaged in the discharge of bis duties as street superintendent, under direction of tlié board of health of the town of Irondequoit, in carrying off waters in the highway, so negligently and carelessly dug the ditch therefor that the flooding of the premises was increased rather than diminished. This is not an action upon a contract. It is an action for negligence in that a person, while engaged in a lawful business, was guilty of an omission of duty which lie owed to the plaintiff to perform the work in a reasonably skillful manner. This principle is elementary. (Whittaker’s Smith on Negligence, 480.)

The judgment and order appealed from should be reversed and a new trial granted in the County Court, with costs to abide the event.

Dwight, P. J., concurred.

Judgment and order appealed from reversed and a new trial granted in the County Court of Monroe county, with costs to abide the event.


text:
    FREDERICA PREUSTER, Respondent, v. THE SUPREME COUNCIL OF THE ORDER OF CHOSEN FRIENDS, Appellant.

      Benefit societies — misrepresentations in am, application — receipt of dues by the societyr pending an investigation, not a waiver.

    A member of a foreign mutual benefit association falsely stated bis age in bis application for membership, and this misrepresentation was, by the terms of the contract, attended with the penalty of absolute forfeitute of all rights. Charges, were made upon this ground before a local lodge, and while an investigation was pending its secretary notified the member to pay, and received from him, dues which were properly payable under the conditions of membership.

      Held, that such receipt of dues was not a waiver of the alleged forfeiture; that, until the charge made was proved to be true, the member remained in good standing and was bound to make, as the association was bound to receive, the customary payments.
    Appeal by the defendant, the Supreme Council of the Order of Chosen Friends, from an order, entered in the clerk’s office of the county of Niagara on the 19th day of January, 1891, granting a new trial upon a case and exceptions made by the plaintiff, after a trial at the Niagara Circuit before the court and a jury.

      The defendant was incorporated in the State of Indiana, but was doing business in the State of New York under its laws, and was described in its answer as a “ fraternal assessment insurance order.”

      John F. Pound, for the appellant.

      Frank JBrundage, for the respondent.
   Dwight, P. J.:

The action was to recover on a beneficiary certificate of membership in the defendant association, issued to one 0. 0. Reim and payable in case of his death to the plaintiff, his sister. The defense was founded upon a material misrepresentation in respect to his age, contained in the application of the insured, and the plaintiff sought to avoid the defense on the ground of waiver.

The statement of the insured in his application made May 23, 1882, .was that he was sixty years old, and that he was born on the 4th day of February, 1822; the undisputed evidence showed that he was more than sixty-one years of age, the plaintiff herself testifying that he was born on the 4th day of February, 1821. The misrepresentation was material, because, as appears by the table of rates contained in the by-laws of the defendant and printed on the face of the certificate itself, no person was eligible to a beneficiary membership who was past the age of sixty-one years, and by the express terms of his application it worked a forfeiture of all his rights under the certificate. The language of the application in that respect was as follows: “ I do hereby further consent and agree that any untrue or fraudulent statement made above,” and the representation as to his age and date of birth preceded that stipulation, * * * “ or my suspension or expulsion from * * * the Order, shall forfeit my rights to all benefits and privileges therein.”

Here, by the express terms of the contract, was an absolute forfeiture of all rights otherwise secured by it, which was fatal to the plaintiff’s cause of action unless the defense was in some manner avoided. It was upon the ground of such forfeiture that the learned judge at the circuit directed a verdict for the defendant; it was upon the ground that the jury should have been permitted to pass upon the question whether the forfeiture was waived, that the same judge,, at Special Term, granted tlie motion for a new trial. 'We think the direction of a verdict was correct and that the motion f or a new trial was improperly granted.

Without stopping to consider several questions raised by the argument, as to whether the term forfeiture is properly applied in the case of a contract which was void from the beginning; whether the officers of a subordinate and local council of the defendant have any power to waive such a forfeiture, or any other, and whether such a forfeiture can be waived, even by the general officers of an association such as the defendant; without discussing any of these questions, we find a complete answer to the theory of waiver in the fact that the officer charged with the act of waiver had no knowledge of the facts out of which the forfeiture arose.

The narrative of the case in this connection is as follows: The member had suffered *an attack of paralysis and had made application for relief for total disability, which was within the provisions of the certificate, when a charge was lodged against him with the local counsel, with a view to his expulsion, to the effect that he had procured his certificate by a fraudulent representation as to his age. The charge was entertained and investigated, and means were taken to obtain evidence on the subject from his birthplace in Germany. While this investigation was pending, and while the evidence from Germany was expected, two assessments were made in the ordinary course of the business of the defendant. Of these assessments the insured, in this case, was notified in the usual manner by the secretary of the local council, and payments of the same were received when offered. There was at this time nothing to charge the secretary or the council with knowledge of the facts which gave rise to the forfeiture. It was known that the charge of fraud had been made against the insured, but the secretary or the council had no knowledge that the charge was true. They were bound to-presume it not true until it was proved. They had no right to refuse payment of an assessment by a member so long as he continued a member in good standing, and the, standing of the member in this case was unaffected by charges not yet proved. The case is not one in which information which puts the recipient on inquiry has the effect of knowledge of the facts. The council and its officers were, in truth, put upon inquiry, and the inquiry was being prosecuted officially; but, in the meantime, there were assessments to be made and collected; the standing of the insured was yet unaffected; and he was as much liable and as much entitled to be notified of and to pay his assessments as any other member. Neither the secretary nor the council could prejudge his case pending its investigation, and neither had the right to withhold notice or to refuse the payment of his assessments. For these reasons there was 'no waiver of the forfeiture in question which was to be inferred from the acts of the secretary in levying and collecting these assessments. (Barteau v. Phoenix Mut. Life Ins. Co., 67 N. Y., 595; Devens v. Mech. and T. Ins. Co., 83 id., 173; Robertson v. Met. Life Ins. Co., 88 id., 541.)

Ye discover no error on the trial which was to the prejudice of the plaintiff. The copy of the entry in the Baptismal Register of St. Stephen’s Church, at Langensalza, Saxony, was inadmissible as evidence in this case, and was immaterial as evidence of what was before the committee of the council on their investigation; but it was not to the prejudice of the plaintiff, because her own and other undisputed testimony established the fact of the false statement in the application of the insured. We find in the case no error which vitiates the verdict rendered by direction of the court. That direction seems to have been correctly given.

The order granting a new trial must be reversed.

Macomber, J., concurred.

Order appealed from granting a new trial reversed, and judgment directed for the defendant on the verdict.


author: MaoombeR, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE UNION AND ADVERTISER COMPANY, Respondent, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF MONROE, Appellant.

      Session laws — their publication — a designation of a newspaper therefor, is not changeable — an agreement to publish for less than the legal rates is void — a second unqualified designation — public policy.

    Chapter 280, Laws of 1845, as amended by chapter 515, Laws of 1886, requires that a majority of the members of a board of supervisors, representing respectively each of the two principal political parties into which the people of a county are divided, shall designate in writing a newspaper, fairly representing their party, to publish the session laws, and that such designation shall bo signed by them and filed with the clerk of the board of supervisors.
    A majority of the Democratic members of the Board of Supervisors of Monroe County, on December 2, 1889, designated the “ Brockport Democrat,” as a paper for such purpose, filed the designation with the clerk, and the board of supervisors, by resolution, subsequently adopted it.

      Held, that after a lawful designation was once made, there existed no power thereafter to change it.
    By the aforesaid act of 1845, as amended by chapter 448, Laws of 1887, it is provided that the sum to be paid for publication, in counties having a city of over fifty thousand inhabitants, shall not be less than thirty nor more than fifty cents per folio. The city of Rochester, in the county of Monroe, had over fifty thousand inhabitants.
    The designation was upon condition that the sum paid for publication should not exceed twenty-five cents per folio, and this sum was fixed upon an offer or bid, made to said members by said newspaper, to do the work at that price.

      Held, that, as the minimum price fixed by statute was thirty cents per folio, a designation at a lower price violated the statute, and was of no effect.
    •On December 3, 1889, the day following their first designation, a designation of the “ Union and Advertiser,” a newspaper published in the city of Rochester, was made by said members.

      Held, that this designation of the Union and Advertiser went into effect at once, and that said “ Union and Advertiser” was entitled to recover under it for the publication of the session laws, and also for publishing notices of sales of lands for unpaid taxes, which, by statute, are required to be published in the same manner.
    'That the statutes upon this subject indicate a clear public policy that no opportunity shall be given to members of either political party to designate, through motives of false economy, a newspaper not calculated to give publicity to the session laws; and no agreement to publish the same at prices below the legal rates is legal.

      Appeal by the defendant, the Board of Supervisors of Monroe County, from an order, entered in the clerk’s office of said county on the 18th day of February, 1891, directing that a peremptory writ of mandamus issue requiring said board to audit and provide for the payment of the claims of the relator for printing and publishing the session laws, and notices for the sale of lands for unpaid county taxes, for the year 1890.

      WilUmn F. Oogswell, for the appellant.

      JSTathcmiel Foote, for the respondent.
   MaoombeR, J.:

The relator’s claim for printing and publishing the session laws and notices of sale of lands for unpaid taxes for the year 1890 was properly presented to the Board of Supervisors of Monroe County and by that body rejected. This proceeding calls upon the court for the high prerogative writ of mandamus compelling the defendant to pay the amount of the bill thus rendered, without putting the relator to an action at law therefor.

There is no question made of the fact that the relator actually printed and jmblished the session laws and the notices of sale for unpaid taxes required by statute to be published in Monroe county, nor of the correctness óf the bill rendered therefor. The only defense is that the defendant is not in any respect liable to the relator for the expense of such printing and publication.

Chapter 515, section 3 of the Laws of 1886, so far as it is material to the question involved in this appeal, is as follows: “ It shall be the duty of each board of supervisors in the several counties of this State, at their annual meeting, or at any special meeting called for the purpose, to appoint the printers for prrblislnng the laws in their respective counties. The appointment shall be made in the following manner: The members of the board of supervisors representing respectively each of the two principal political parties into which the people of the county are divided, or a majority of the members of the board of supervisors representing respectively each of such political parties, shall designate in writing a paper fairly representing the political party to which they respectively belong to publish the laws, and such designation shall be signed by the members making it and filed with the clerk of the board of supervisors, and the two papers so designated shall publish the laws.”

Other statutes, not necessary to refer to in detail, make it incumbent upon the board of supervisors to designate the same newspapers also for publishing notices of sale of lands for unpaid taxes or .for the redemption thereof. In pursuance of this statute of 1886 a majority of the Democratic members of the Board of Supervisors, of Monroe County did, by a writing signed on the 3d day of December, 1889, and filed with the clerk of the board on the following day, designate the relator as the paper to publish such laws and notices. That designation is as follows: “ In compliance with the laws of the State of New York (chap. 515, Laws of 1886),. we, the undersigned, constituting a majority of the Democratic, members of the Board of Supervisors of the County of Monroe, do hereby designate The Rochester Daily Union and Advertiser as the-paper representing our political views to publish the session laws-for 1890.” This paper was signed, as is indicated upon its face, by a majority of the members of the board belonging to the Democratic party.

Under this designation it would follow, as a matter of course, that-the bill presented for the services so performed to the county should have been audited and paid, unless such designation was insufficient,, illegal, or unless there had been a previous designation by .the same-persons of some other newspaper to perform such services. No-question can be made but that the designation of the relator was-in terms strictly in conformity to the provision of the statute quoted. Nor is there any- question of fact presented but that, the pei’sons signing the same did, in truth, constitute a majority of the .members of the board who professed to belong to the-Democratic party.

The defense, however, is based upon the proof that on the 2d day of December, 1889, one day before this action of the Democratic members in behalf of the relator was had, the same body of persons had designated the Brockport Democrat to publish such laws and notices. It is true that on the day last named thirteen members of the board of supervisors made the following designation in writing,, and the same was filed with the clerk of the board and adopted by the board itself in a subsequent meeting. “We, the Democratic members of the board of supervisors, have selected the Brockport. Democrat to publish the session laws, at an expense not to exceed twenty-five cents per folio.”

Very little need be said upon the subject of the power of the Democratic members of the board to change their designation of a newspaper when once legally made. In my judgment, they had no-such power, where the certificate making the same had once been filed with the clerk of the board, and had been adopted by resolution of the board, as was done in this case. The body of persons to which is given the power to designate a newspaper for the purposes, above named is not a legislative body in any respect. There is nothing in the statute which requires the members of either of the two political parties, in order to select a newspaper for publishing these laws, to act together as a body in consultation one with another over the subject; but each person may act independently, and if a majority of the whole number, belonging to a given party, concur in the selection of a newspaper for the publication, that paper becomes, by operation of the filing of the designation, the orgaq for publishing such laws and notices.

There is in evidence before us a paper signed by the same majority of Democratic members of the board, dated December 4, 1889, which declares that the original action taken on the second day of that month, by which the Brockport Democrat was appointed, was done through misinformation of the members as to the political character and status of the last-named newspaper, and, further, “ that, they are now satisfied that the said Brockport Democrat does not meet the requirements of the statute, that it shall fairly represent the political party to which they belong; that the Rochester Union and Advertiser does so represent that party, and hence the reconsideration of the original action and subsequent designation of a paper to meet the requirements of the statute.” In the affidavit-made by the clerk of the board of supervisors it is stated that- this document was not filed with him as such clerk, though the affidavit of Mr. Balkam asserts that the same was made and filed. This difference, which has been made the subject of some comment by the learned counsel for the appellant, does not seem to me to be of any importance. Undoubtedly, Mr. Balkam, when this paper was prepared, understood that the same was to be left with the clerk of the board, and he had reason to believe that it had been so left; yet the clerk himself must b^e deemed absolutely to know whether given papers are on file with him or not. The re-designation of the Union and Advertiser would itself be a sufficient reconsideration •of the previous appointment or designation. So that no writing of this kind was required to be made or filed. The only importance, therefore, that can be attached to it is, that the persons constituting a majority of the Democratic members of the board were deceived and misled in their previous action in thinking that the Brockport Democrat fairly represented the political party to which they belonged. The requirement of the statute is, that the paper to be thus designated shall fairly represent the political party to which the members designating it belong. The question whether or not a given newspaper so represents the political faith of the persons designating it for the purpose of publishing the session laws belongs rather to the persons themselves than to the court. Indeed, such is the peculiarity of the question, that it is doubtful whether any court would undertake to review the determination of the members of the board of supervisors when once fairly and intelligently made upon that question.

It appears, however, that the Brockport Democrat is published in the village of Brockport, which contains a population of less than five thousand persons, and • that its circulation throughout the county is very small, and in the city of Rochester, which contains 136,000 people, is hardly appreciable. That this newspaper has professed a Democratic faith for the last three or four years is not questioned. But a belief in the doctrines of a party is not, as ■it seems to me, conclusive evidence of the fair representation of that party when applied to a newspaper. Many other things must be taken into account, such as its character, influence and circulation. There is nothing, it is true, in the statute that requires -the selection of a paper having the largest circulation. Yet it is apparent that the’ influence of a paper, as ascertained by its circulation, must enter somewhat into the question whether .the same ■fairly represents one of the great parties.

A brief history of the laws relating ,to the matter of the publication of the statutes and of legal notices goes far to show that it was the intention of the legislature to give the greatest publicity to such publication, and not to hide it in weekly papers of limited circulation. By chapter 2S0 of the Laws of 1845, section 1, provision was made for the publication in at least two newspapers in the counties of the State, of these matters, and by section 2 the like publication of all laws of a local nature. By section 3 of the same act the board of supervisors was required to appoint printers for publishing such laws in their respective counties, no supervisor being allowed to vote for more than one paper, thus intending to secure the publication in two papers representing the principal political parties. The-charge for such publication was fixed at .the rate of ten cents for each folio, with a general limitation of an expenditure not exceeding fifty dollars to each paper. By chapter 215 of the Laws of 1870,. section 3 was amended so as to secuz-e in fact, as well as in theoi-y, the designation of two papers of opposite politics for such publication. By chapter 515 of the Laws of 1886, as quoted above, an important change was made as there indicated. This legislation, at-least, seems to have secured what the act of 1845 cleai-ly contemplated, the designation of two papers of opposite political faith for publication of the session laws. Other changes have been made which it is not necessary here to note as not bearing upon the point to which this opinion comes. But by chapter 443 of the Laws of 1887 it was provided:

§ 6. The publisher of each of the papers so designated, as afoi-esaid, shall be entitled to receive for publication of the law's above specified a sum not exceeding fifty cents nor less than twenty cents for each folio, except in counties having a city of fifty thousand inhabitants. In counties having a city of over fifty thousand inhabitants, by the last preceding census, the sum to be paid for such publication shall not be less than thirty cents or more than fifty cents for each folio. The specific rate per folio to be paid in each county shall be fixed by the board of supervisors thereof within the limits above specified.”

In my judgment, under this law, the designation by the Democratic members of the board of supervisors, of the Brockport Democrat to-publish the session laws, was in violation of this statute, inasmuch as it contained an absolute condition that the expense thereof should not exceed twenty-five cents per folio; and that, consequently, such designation went for naught, and that the subsequent proper and lawful designation of the relator was legal and binding upon the board.

The object of this legislation is, as has already been intimated, to secure a publication which shall be a notice to the people interested in the subject-matter of such laws, and in the redemption of lands from sales made under the taxing power of the State. As one of the measures of securing the widest publication and the most complete information to citizens, the measure of the minimum of compensation was introduced, apparently, for the purpose of preventing, through notions of false, economy, the selection, by the members of •either of the two political parties, of a paper which was not, by its character and influence, measured at least in part by its circulation, calculated to afford such information. The legislature must be presumed to have had intimate knowledge of the great pressure brought to bear upon individual members of the boards of supervisors, leading them, through a desire to avoid what to them would seem an unnecessary expenditure of money, to acts which were, in fact, ■subversive of the purpose of the statute requiring publication of laws and legal notices.

It is shown in the record before us that the proprietors of the Brockport Democrat, in order to secure this publication, which they called “ patronage,” offered to publish the same for twenty-five cents a folio, being five cents less than the minimum fixed by statute. This bid, so made to the supervisors, was accepted and acted upon by them in a manner which they themselves apparently regretted the day thereafter.

The certificate so designating the Brockport Democrat was ■directly in violation of the terms of the statute, which declared that the amount to be paid for the publication should not be less than thirty cents a folio, and that the rate to be paid for such publi- ■ cation must be fixed within those limits. Had the same gentlemen indicated by this document that the amount to be paid should be fifty-five cents per folio, being five cents above the maximum rate, the illegality of the designation would be apparent. Can it be deemed any less illegal because it fixes a rate at five cents lower than the minimum ? I think not. Because, as if to make absolute .this provision, the duty is laid upon the board itself to fix the limit of compensation between tlie minimum and maximum pricé pro-vided for by tbe statute. A gratuity of five cents more per folio than the law permits can hardly be deemed any less illegal under the terms of this statute than five cents per folio less than the minimum provided for by the same statute for publication.

A clear public policy is seen in this statute, which is, that through notions of false economy an opportunity shall not be given to the members of either of the political parties to designate a paper that is not calculated to give publicity to, as well as the actual printing of, the laws and notices.

This law was established for a public reason, and, in my judgment, it cannot be contravened by this private agreement made in the'offer of the proprietors of the Brockport Democrat, and the acceptance thereof with a condition as to compensation. The court, I think, has the right to assume, upon the facts developed in this case, that the gentlemen so designating that journal would not have designated it, had not the offer to publish the proceedings been less than the minimum rate fixed by the statute. If this be so, the document carries within itself evidence of its own insufficiency and illegality, and should not be permitted to stand in the way of the designation, though subsequently made, of a journal that, as is conceded by both parties to this controversy, fairly represents one of the principal parties in the county. Privatorum oonmntio jtvri publico non derogat. That the infraction of this statute was deliberate admits of no doubt, for after the bid of the proprietors of the Brockport Democrat had been put in, the reading of this law was called for and the same was thereupon read to the whole board by its clerk, whereby there was actually brought home to them the fact, with a knowledge of which they are presumptively charged by law, that their proposed action was in violation of the terms of the statute.

"While it is true that individuals may waive provisions of law prescribed for their advantage, and may gratuitously serve the public, if they see fit, yet, when private compacts in violation of the provisions of the statute are set up to defeat a claim made for services rendered in pursuance of law, the private compact must give way to considerations of public policy as disclosed by the course of legislation. In the case of the People ex rel. Bush v. Thornton (25 Hun, 456), it appeared that in Sullivan county, where the salary of the county judge bad been fixed for some years past at the sum of $2,500, the defendant, while a candidate for that post, advertised quite extensively that if elected he would fill the office for the sum of $1,200 a year, and would remit to the county $1,300 thereof. In his card or circular which he issued the defendant, there said: “I here repeat, that if elected to the office of county judge I will pledge myself to take only $1,200 for my services; that I will j>ay out of my own pocket the coal necessary to heat my law office; that I will pay for all stationery and letter-heads, and will see that those persons needing blanks shall pay for them themselves. If by so doing I have committed a criminal offense, let Judge Bush make the most of it by lodging a complaint against me before the next grand jury. Has heaping on taxes become a virtue in this county, and an attempt to reduce them become a crime ? Let the people answer.” But the court held that all votes cast for that candidate under the influence of such promise were illegal, and that, in a proceeding in the nature of quo warranto against him, they should be rejected.

All contracts or agreements which have for their object anything which is rejsugnant or contrary to the provisions of the statute are void. (1 Comyn on Conts. [4th Am. ed.], 58; 1 Fonbl. Eq., book 1, chap. 4, §§ 4, 5.) But, says the learned counsel for the appellant, this under-cutting of prices was done “ with a commendable view to economy.” But, on the contrary, as was said by Judge Allen in Collender v. Dinsmore (55 N.Y., 210), “a contract does not depend upon its reasonableness for its validity,” and.I may add to this that múeh less can it depend upon its economy for its validity.

The order appealed from should be affirmed, with costs.

Dwight, P. J., concurred.

Order and judgment appealed from affirmed, with costs.


author: Maoombkb, J.:

text:
    HIRAM WOOD, Appellant, v. BENJAMIN M. BAKER and Another, Respondents.

      Equity — deed given as a mortgage — property rights not asserted by an assignee in bankruptcy remain in the bankrupt — no reconveyance necessary — action to redeem — statute of limitations — new trial.

    In an action "brought to have a certain deed declared a mortgage, and for a redemption of the premises described therein from the mortgage, it appeared that the plaintiff, after executing the deed to one Baker, the defendant, in 1872, as a security for loans, in form took a lease of the premises from him, by an instrument which gave to the plaintiff the privilege of purchasing the premises at the price of $12,000, which sum had been loaned by Baker to the plaintiff, but subsequently, and in 1874, he surrendered possession to Baker ; that soon afterwards bankruptcy proceedings were instituted against tire plaintiff, an assignee was appointed, the usual proceedings taken, and in May, 1875, both the plaintiff (the bankrupt) and his assignee were duly discharged.
    The assignee never made any claim in regard to the premises:

      Held, that the assignee having failed, through accident, mistake or design, to enforce said claim as an asset of the bankrupt’s estate, and distribute it accordirig to law, and there being no proof of fraudulent concealment on the part of the bankrupt, said claim, and all right of action thereunder, remained, where they existed originally, in the plaintiff.
    That no reconveyance of said right of action was required to be made by the assignee in order to clothe the plaintiff with any rights therein which the bankruptcy court had refused or failed to receive as assets.
    That an action to redeem, brought within twenty years from the execution of the deed, was not barred by the statute of limitations.
    That where all the facts necessary for a complete judgment upon the rights of a party are before the appellate court, and relief upon such facts has been denied him in the trial court solely upon a question of law erroneously decided in the trial court, the appellate court will not send the case back for a new trial, but will grant the proper judgment.
    Appeal by the plaintiff Hiram Wood from a judgment, entered in tbe Monroe county clerk’s office on the 14th day of April, 1890, dismissing his complaint, with costs, after a trial by the court at an Equity Term in Monroe county.

      James O. Smith and John Van Voorhis, for the appellant.

      Theodore Bacon, for the respondents.
   Maoombkb, J.:

This action is brought to obtain an accounting of the rents and profits of certain real estate in the hands of the defendant, and for redemption of the land from an instrument which is claimed by the plaintiff to be a mortgage. The real estate involved consists •of a lot on Fitzhugh street in the city of Rochester, with a sixty-six feet frontage, containing altogether about one-fourth of an acre. By an instrument dated January 9,1812, the plaintiff conveyed this land to the defendant, Benjamin M. Baker, for the consideration, as ■expressed in the deed, of the sum of $12,000. The conveyance was made subject to a mortgage of $20,000, executed December 9, 1811, by Wood to the Mutual Life Insurance Company of New York. By a paper dated the same day as the deed the defendant, Benjamin M. Baker, for the consideration of the rents and covenants expressed in the lease, let and demised to the plaintiff these premises for the term of one year, at the sum of $1,200, with the privilege to the lessee of purchasing the same at any time within six months from the date of the lease, upon payment of the sum of $12,000. The deed contained no assumption, personally, on the part of Baker, of the payment of the mortgage to the Mutual Life Insurance Company. By the terms of the lease the plaintiff was required to pay the interest upon the mortgage to maintain the premises in good repair, to insure the same in the sum of $15,000 for the benefit of the Mutual Life Insurance Company, and $5,000, for the benefit of the defendant, Benjamin M. Baker. This lease also contained the usual ¿covenant of payment of the rent, and of the restoration of the premises one year thereafter. On the 13th day of January, 1813, a like lease was executed to the plaintiff by the defendant'Benjamin M.

Baker, at the rent of $2,000 per year, with the like privilege of purchasing the same at any time within six months, upon the payment of the sum of $20,000, with the same covenants contained in the first lease above mentioned.

It is asserted in the complaint, admitted by the answer, and found by the learned trial judge, that when the deed was given by Wood to the defendant Benjamin M. Baker, and the first lease taken back, there had been advanced by Baker to the plaintiff the sum of $12,000. It is further alleged in the complaint and admitted in the answer, and likewise found by the trial -judge, that when the second lease was given tbe sum of tbe advancements made by Baker to tbe plaintiff bad, with tbe year’s rent accruing, amounted to $20,000.

IJp to July, 1870, this property bad been occupied as a livery stable, and conducted first by tbe defendant Benjamin M. Baker, who was then tbe owner, and, subsequently, upon a sale of tbe real estate to Wood, tbe same was conducted by tbe plaintiff in bis own behalf. On tbe 5th day of July, 1870, tbe livery stable building was destroyed by fire. At this time it was contemplated by Wood to erect a substantial building in the place of tbe old one to be used for hotel purposes. On consultation with Mr. Baker it is alleged in tbe complaint, and testified to by Wood, that Baker agreed to advance to Wood sufficient moneys to carry out this plan. This fact, however, is disputed by Baker; and whether it is true or not, tbe allegation and tbe proof do not form very essential parts of tbe legal question presented for review on this appeal, though tbe trial court has found in favor of tbe plaintiff on that matter as a fact of some importance.

It is established by tbe evidence of tbe plaintiff, together with many attending corroborating circumstances, that the instrument executed by Wood to Baker on tbe 9th day of January, 1872, which was, in form, an absolute deed, was intended by both parties thereto to be a security for tbe moneys that bad been at that time advanced by Baker for tbe benefit of Wood, namely, tbe sum of $12,0Q0. This fact is denied by Baker in bis testimony, and tbe latter insists that be declined to loan tbe plaintiff any money upon tbe strength •of tbe execution of a mere security upon tbe property, but offered to purchase tbe property and pay Wood therefor a sum which, in addition to tbe sums advanced, would come to $12,000. He testifies that be agreed to assume tbe payment of the twenty thousand dollar-mortgage to tbe Mutual Life Insurance Company, though, as stated above, no such assumption on his part is contained in tbe deed or elsewhere in writing. Wood testifies, with much circumstance and detail, that Baker was desirous to receive ten per cent as interest for tbe moneys which be had loaned, and that, accordingly, tbe rental sum in the first lease above mentioned was fixed at $1,200, which would be ten per cent upon the indebtedness then existing; and the rent of tbe second lease, fixed at $2,000, which would be ten per cent of tbe amount of the indebtedness at that time existing. The plaintiff, on the 1st-day of November, 1874, being seriously ill, and unable longer to carry on the hotel business, surrendered voluntarily to the defendant, Benjamin M. Baker, the possession of the premises. Immediately thereupon proceedings by the creditors of the plaintiff were instituted in bankruptcy, which resulted in the adjudication of his bankruptcy on the 11th day of November, 18Y4, and the appointment, in the month following, of an assignee, together with the usual assignment made by the register in bankruptcy of all of the property of the bankrupt for distribution among creditors. In the succeeding month of May a dividend of fourteen and one-half per cent was declared upon the indebtedness of the bankrupt, and upon the payment of this sum the assignee and the bankrupt both were (as is conclusively presumed in the absence of evidence to the contrary, on notice to all of the creditors) discharged in pursuance of the provisions of the bankrupt law.

The case is devoid of any evidence to show that the assignee in bankruptcy ever made the claim that is now made by the plaintiff in his own behalf, or that he ever received any information which would lead him to believe that the estate, which he officially represented under the appointment, embraced any claim of right of redemption under the deed of January 9, 1872.

There are other facts disclosed by the evidence and which are, in the main, found in the decision of the learned trial judge, but it is not thought to be necessary to refer to them in detail, as they do not have any immediate bearing upon the solution of the questions involved in this appeal.

The learned justice at the trial, while finding all the material facts in favor of the contention made on behalf of the plaintiff, has directed a judgment to be entered in favor of the defendant of a dismissal of the complaint upon the sole ground that the rights claimed in this action passed to the assignee in bankruptcy, and that they had never been restored to the plaintiff otherwise than by the discharge of the bankrupt and his assignee, and that, consequently, this action cannot be maintained. Undoubtedly the object of the bankrupt law was to secure a just and equitable distribution of the bankrupt’s property, and the whole of the same, among his creditors; and to this end it was provided that all of the bankrupt’s estate, with certain exceptions unimportant in this case, including all his rights of action for property, and all the 'rights of the redemption of such property, should be transferred by assignment to his duly appointed assignee. (IT. S. Revised Statutes, § 5044, 5045, 5046.) But the question immediately arises, what becomes of the property, whether it be tangible or otherwise, which the bankruptcy court and its assignee declined to consider or failed to use as assets ? Is it the property of nobody, or does it necessarily, by operation of law, revert to the bankrupt ? The title to it must rest somewhere, and there is a conclusive presumption that it remains where originally found until it is shown to have been taken away in fact as well as in theory.

It will be observed, and too much stress cannot be placed upon the fact, that no fraudulent concealment of any of his property or rights of action is alleged in the answer against the plaintiff. A long perusal of the evidence has led likewise to the conclusion, that if such defense had been interposed it would have been unavailing. There is absolutely'no fraud imputed to the plaintiff in the part which he played in the bankruptcy court, though it is plain to be seen that his mind was overlaid and his actions controlled to a great extent by the domination of Mr. Baker. Had any fraudulent concealment been alleged and proved, an entirely different application of the principle enunciated would be administered, for fraud vitiates everything.

Suppose that the plaintiff’s claim, as made in this case, had been based not upon a mere right of action, but upon the fact of the existence of some tangible property, like bonds, which liad been pledged for the payment of an indebtedness, and this property had been overlooked by the bankruptcy court and its assignee, or, if not overlooked, had been thought to have been pledged for a sum greater than its intrinsic value, and, consequently, the court had refused to treat it as assets, and had administered the estate accordingly, and both the bankrupt and the assignee had been duly discharged, which must necessarily have been under notice to all creditors, could it reasonably be said that the pledgee of such property, after the payment of his debts, might hold it, because, under the bankruptcy proceedings, it might and probably should have been applied to the payment of the indebtedness of the bankrupt, either by judicial proceedings to redeem on payment of the debt, or by a sale thereof under an order of the court ? We think not. Can the case of the plaintiff be less strong simply because his claim is based upon a mere right of action, not evidenced by any instrument in writing, but wliicb is secured to him by well established and undisputed principles of equity jurisprudence, namely, the right to go behind the mere form of the instrument by which his property -was conveyed to his creditor, and to say that that instrument, in terms an absolute deed, was intended only as security for the payment of the debt ? The discharge of the bankrupt from his debts, acconqianied by the discharge of the assignee from further duties in the premises, made a case where it must be conclusively presumed that the bankruptcy court determined that the claim which existed in behalf of Wood against Baker was not assets, or, at least, that it was such an onerous right of action involving in its pursuit an advancement of so large a sum of money to the insurance company that it was not worth anything. (Nash v. Simpson, 78 Me., 143; Amory v. Lawrence, 3 Clifford, 523.)

We know of no right existing in this court to say that the bankruptcy court made a mistake. There was yielded to the Federal court, under the act of 1867, the absolute control of the bankrupt’s property for the payment of his debts. If that tribunal through accident, mistake or design saw fit not to regard the claim now in suit as assets, we have no power to revise that determination and say that it was assets and that the bankrupt shall now have no title thereto because it should have been distributed in that court. (Boyd v. Olvey, 82 Ind., 294.)

We think no reconveyance of this right of action was required to be made by the assignee in order to clothe the plaintiff with any property rights therein which the bankruptcy court refused or failed to receive as assets. (Colie v. Jamison, 4 Hun, 284; Dewey v. Moyer, 72 N. Y., 79; affirmed by the U. S. Supreme Court in Moyer v. Dewey, 103 U. S., 301; Amory v. Lawrence, 3 Clif., 523.)

We are unable to see how the defendant can be heard to object to the prosecution of this claim by the plaintiff rather than by the assignee in bankruptcy. The latter was discharged in the year following his appointment, and the bankrupt himself relieved from any obligation further to pay his debts by the judgment of a competent court. The bankrupt had applied all his property which the court would take to the payment of his debts without any fraudulent concealment of any part thereof. There is no conflict of interest between the assignee in bankruptcy and the plaintiff, and consequently the defendant is not in any proper attitude to object to being called upon to perforin his honest obligation in this action. (King v. Remington, 36 Minn., 15; Starkweather v. Cleveland Ins. Co., 2 Abb. U. S. Rep., 67.)

The cases cited by the learned judge at the Special Term (Van Slyke v. Shryer, 98 Ind., 126; Jones v. Dexter, 125 Mass., 469; Kenyon v. Wrisley, 147 Mass., 476; and Smith v. Chandler, 3 Gray, 392), do not, in our judgment, vary in any material respect, as applicable to this case, the principle above enunciated. Why should not the plaintiff be permitted to maintain this action under these circumstances ? The Federal court having presumably repudiated this claim as an asset, nobody can complain of the action of the plaintiff in availing himself of the right to prosecute it except, possibly, those persons who might share in the distribution of the avails of this action, should the plaintiff ultimately prevail therein. The logical and necessary result of the discharge of the assignee in bankruptcy, and of the bankrupt himself, was to repossess the. plaintiff of all property rights which the District Court of the United States refused to regard as assets. Undoubtedly, the creditors, had they moved opportunely, might have instituted an action, even though the assignee had refused to, in order to establish the claim now made. The most, in our judgment, which may be said against the plaintiff is that, by a mistake or accident, the claim which now appears to be so valuable was overlooked by the District Court in its administration of the bankruptcy case. In the absence of allegations and proof of fraud, the utmost that may be claimed against the plaintiff’s rights would be found in the principle of equity that he had, by the facts disclosed, become an involuntary trustee of the property for the benefit of the persons who otherwise would have received it (Seagrave v. Kirwan, Beatty, 157); and that he should in turn apply the property, or the proceeds of the action thus instituted, to the discharge of his debts; but that principle does not prevent him from maintaining this action.

In our view, it is not necessary, perhaps, to show that any right, of action based upon this claim must have been enforced within two^ years by the assignee in bankruptcy, for any rights of such assignee,, or any person in his place, seem to have been absolutely abandoned. The question, therefore, whether the plaintiff in his attempt tO’ maintain this action is in better position by reason of the lapse of the two years mentioned in the Federal Statute (U. S. Rev. Stats., § 5057), does not seem to be of much importance.

The point made in regard to the failure of the answer to set up such two years’ limitation does not appeal’ to be, under the proofs and under the findings of the learned trial judge, of auy moment in enabling us to arrive at what we deem to be a proper conclusion. This action is timely brought within section 379 of the Code of Civil Procedure, which provides that an action to redeem real property from a mortgage, with or without an account of the rents and profits, may be maintained by the mortgagor, or those claiming under him, against the mortgagee in possession, or those claiming under him, within twenty years. The defense, therefore, set up in the answer, that the cause of action stated in the complaint did not accrue to the plaintiff within ten years next preceding the beginning of the action, is not tenable.

The reply of the learned counsel for the respondents to the suggestion made in the brief of the appellant that the two years’ statute provided for by the Federal act had not been pleaded, is to the effect, inasmuch as the. defendants had alleged that a thing did not happen within ten years, that such allegation was sufficient to show that it did not happen within two years. This, undoubtedly, would be correct as a matter of time, but in pleading the statute of limitations it is quite obvious that the greater number of years pleaded does not include a lesser number; for section 413 of the Code of Civil Procedhre provides: “ The objection that the action was not commenced within the time limited can be taken only by answer.” It is the limitation of time which is required to be pleaded, and not the time itself.

The only other question remaining is whether, under the expression of these views, it is our duty to grant a new trial, or whether we should direct what seems to us to be the proper judgment following the findings of the trial judge. In the case of Wood, Supervisor, etc., v. The Board of Supervisors of Monroe County (30 N. Y. State Rep., 706), we increased the amount of the recovery by a considerable sum of money which had been thrown out by the .Special Term, but which had been included in the findings of fact. This conclusion, which was reached after some consideration of section 1317 of the Code of Civil Procedure, which we thought warranted it, and the cases cited in the opinion then rendered, was affirmed by the Court of Appeals in that case. On this appeal all of the facts necessary for a complete judgment in favor of the plaintiff’s contention are found in his favor, and relief is denied him solely upon the ground above stated, namely, that he had not become repossessed of the right of action, otherwise than by a discharge of the assignee in bankruptcy, and his own discharge from all liability to his creditors. If these findings of fact of the Special Term are correct, the proper judgment would be substantially for an accounting of the rents and profits of the real estate, and for a redemption of the title thereof, upon the ground that the instrument conveying the property to the defendant was, though in form a deed, in fact, a security for the payment of an indebtedness, and that, consequently, the defendant, from the time he took possession in the year 1814, was a trustee for the due application of the rents and profits to the extinguishment of the debt which was owing to him by the plaintiff.

But it is claimed by the learned counsel for the defendant, that though the judgment appealed from may not be sustained upon the legal ground mentioned by the learned trial justice, yet that it may be affirmed upon the ground that the learned justice was in error in his conclusion of facts. If this contention is borne out by the evidence, it undoubtedly would lead to the conclusion reached by ■the learned counsel. Upon an examination of the testimony, we are satisfied that the conclusions in respect to the facts are sustained •by a clear preponderance of the evidence. To quote the testimony ■of the principal witnesses, namely, the plaintiff and the defendant Benjamin M. Baker, would be a prolongation of this opinion beyond all ordinary limits. There are, however, two overwhelming considerations which show that the contention made by the plaintiff upon the question of fact is correct, and these are: First. That after the figuring up and ascertainment of the indebtedness of $12,000, the rental value of the premises was fixed at the sum of $1,200 per year, being ten per cent upon the indebtedness, that being the measure of rent reserved accoiding to the testimony of Wood; and that when such indebtedness became $20,000’, such rent reserved was the sum of $2,000, neither sum, under the evidence, being near tlie actual rental value of the premises; and, second, if the defendant’s claim of an absolute conveyance, with a conditional agreement of sale, is correct, the rights of the parties became fixed six months after the delivery of - the deed, to wit, in the month of July, 1872, and that thereafter the plaintiff had no right, if the arrangement was a mere conditional agreement to sell back the property, to call upon the defendant to make good his promise which was contained in the lease given of even date with the deed. This "being so, according to the contention of the defendants, the subsequent loans which, with the year’s unpaid rent, amounted to $8,000, were mere gratuities made by the defendant Benjamin M. Baker to the plaintiff absolutely without security, but as acts of generosity. There is, however, nothing in the printed record which would show that this defendant, having once made the bargain which he claims to have made, was a person disposed to give up any of the advantages of that bargain and to bestow upon another, with whom he was claiming to be dealing at arm’s end, a mere gratuity.

We think, therefore, that the judgment appealed from should be reversed, and in its place an interlocutory judgment should be entered declaring that the deed of January 9, 1872, was executed and delivered as a security for the loan of money, and that the plaintiff is entitled to an accounting of the rents and profits during the time that the same has been in the possession of the defendant Benjamin M. Baker, and an application of such rents and profits to the satisfaction and extinguishment of the indebtedness, together with lawful interest thereon, as fixed by statute (Schermerhorn v. Talman, 14 N. Y., 126, 127); and declaring that Baker was from that time a trustee for the plaintiff, in relation to the premises; and directing that upon payment of any balance due the defendant Baker, if there be any, the latter shall reconvey the property to the plaintiff.

Judgment is so ordered with costs of the trial term and of this appeal to the plaintiff.

Dwight, P. J., concurred.

Judgment appealed from reversed, and an interlocutory judgment directed for the plaintiff, with costs, as indicated in the opinion, upon the findings of fact. Judgment to be settled by justice writing the opinion.


text:
    THE SINGER MANUFACTURING COMPANY, Respondent, v. MARY HILL, Appellant.

      What is an action on contract — Laws of 1813, chap. 92 — 2 B. L., 153, sec. 2.
    An Indian of the Seneca Tribe or Nation bought a sewing machine of a manufacturing corporation under a lease, or by a conditional sale, which provided that, until payment, the title should remain in the ‘corporation. The vendee having failed to make full payment, the vendor demanded the amount due, which was not paid, and thereafter demanded the machine, which demand was refused. The vendee then brought an action of replevin to recover the sewing machine. It is forbidden by chapter 92, Laws of 1813 (2 R. L., 153, § 2), to sue or maintain any action upon.a contract against any of the Indians of the Seneca Tribe or Nation.

      Held, that the right of action arose upon the demand and wrongful refusal of the. defendant to give up the machine; that, consequently, the action was not on contract, hut was one sounding in tort.
    Appeal by tlie defendant, Mary Hill, from a judgment of the County Court of Cattaraugus county, entered in the office of the cleric of said county on the 24th day of January, 1891, affirming the judgment of a justice of the peace in favor of the plaintiff, and awarding it the possession of a certain sewing machine, with costs.

      A. Hazeltine, for the appellant.

      Q. W. dole, for the respondent.
   Dwight, P. J.:

The action was replevin for a sewing machine. The defendant-is a woman of the Seneca Nation of Indians. By chapter 92 of the Laws of 1813 (2 R. L., 153, § 2) it is provided: “That no person shall sue or maintain any action on any bond, bill, note, promise- or other' contract hereafter to be made against any of the Indians- * * * of the Seneca Tribe or Nation; * * * and every person who shall sue or prosecute any such action against any of the said Indians shall be liable to pay treble costs to the party grieved.” The defendant was in possession of the sewing machine-under an agreement with the plaintiff, witnessed by a writing signed by the defendant, dated December 20, 1881, and denominated a lease, which certified that she had leased the machine-•of the plaintiff for the term of fourteen months, and that for the use of it she agreed to pay the sum of fifty dollars, in sums specified, payable monthly, commencing with the date of the agreement. The lease contained stipulations as to the disjiosition, use and care of the machine during the said term, and continued as follows: “ And if any default should be made in the payment of the rent or any part thereof, as above provided, or if I shall violate any of tlffe provisions of this agreement, then and in either case, on demand, I agree to pay the said Singer Manufacturing Company, their agent or assigns, the full original price of said machine, less the sum or sums that shall actually have been paid for the hire of the same; and it is further agreed, that in case I fail to pay, as last aforesaid, or fail to pay the rents, as above stipulated, or any portion thereof, or shall violate any of the provisions of this agreement, they, the said Singer Manufacturing Company, at their election, may take said machine, and I hereby agree to surrender and deliver the same with all its accompaniments, to them or their authorized agent without let or hindrance, and do authorize them to enter my dwelling, building or place of business for the purpose of reclaiming the same. It is further agreed that as soon as the Singer Manufacturing Company shall have received the sum of fifty dollars, from the said rent or otherwise for the said machine, the full title and ownership there'of shall pass from the said the Singer Manufacturing Company to me,and not before.” Below the date and the signature of the defendant was the following: “ This certifies that I know and fully understand the provisions of the above lease. (Signed.) Mary Hill.”

The defendant had had possession of the machine nearly eight years, and had paid under the contract less than thirty-five dollars, when the plaintiff demanded the balance of the money due, which the defendant declared herself unable to pay. The plaintiff then demanded possession of the machine which the defendant refused to give, unless she was repaid the money already paid by her, and the plaintiff thereupon commenced this action of replevin and took the machine under process issued therein.

The sole question in the case is whether that action was an action “on contract” within the meaning of the statute quoted above. Whether the agreement under which the defendant took possession of tbe machine was a lease or a conditional sale, or both, it is plain that the title to the property was all the time in the plaintiff. From the moment of the demand and refusal to deliver the machine the possession of the defendant was wrongful. The plaintiff’s cause of action in replevin was based upon that demand and refusal. Although the contract between the parties determined the right of the plaintiff to the possession of the property, yet the right of action in replevin was not given by the contract, but arose only upon the wrongful refusal of the defendant to deliver the property on demand. The action of replevin is not an action on contract, but is one sounding in tort. If a Seneca Indian hired a horse for a day or for a week, and then refused to return him to the owner, there would be no question of the right of the latter to maintain replevin for his horse, even though the Indian acquired possession under a contract and the right of the owner to the possession depended upon the term of the hiring, which was fixed by the same contract.

The case of Hastings v. Farmer (4 Comst., 293) is not at all in point. Hastings had bought a pair of horses at a sale on an execution, issued upon a judgment recovered by default against an Indian, in an action on contract. The Indian took his horses where he could find them, and Hastings brought replevin to recover possession of the property. The court held that the judgment, the ■ execution and the sale were absolutely void, and that the plaintiff acquired no title by his purchase. He was not defeated because his action was on contract, but because the action in which the judgment was recovered under which he claimed title was on contract, and, therefore, void.

The judgment in this case must be affirmed.

Macomber, J., concurred.

Judgment of County Court of Cattaraugus county appealed from affirmed, with costs.