author: By the Court.—Monell J.

text:
    HERMAN KECHLER, Plaintiff and Appellant, v. MRS. STUMME, Defendant and Respondent.
    I. Pleading.—Compliance with Statute which gives the Right of Action, what not sufficient.
    1. It is not sufficient simply to refer to the statute, unless it is so provided in the statute; but all the facts which under the statute constitute the cause of action must be alleged.
    II. Mechanic’s Lien.
    1. Complaint in proceedings to foreclose, what insufficient on demiwrrer. ci. A complaint alleging that “a notice in conformity with such statute to create and whereby there was created a lien ” in plaintiff’s favor, was “filed in the office of the clerk,” etc., “and thereafter, upon due notice to the defendant to appear herein and account, etc., an order was entered authorizing the putting in of the pleadings herein,” is insufficient in that it neither sets out the notice nor gives its substance.

    III. Definitions.—Wobd “Dub.”
    The word “ due ” in such complaint, in the connection in which it 4s used, is a mere conclusion of law, and not a statement of fact.

      Before Monell and Curtis, JJ.

      Decided November 29, 1873.
    Appeal from judgment in defendant’s favor, on demurrer to complaint.
    The complaint alleged the doing of work, etc.,, as a mechanic upon "buildings of the defendant, and that to secure the payment of said sum, and in accordance with the statute in such cases made and provided, the plaintiff did (within three months after the completion of said work, labor, and material being furnished, done and performed) file in the office of the clerk of the city and county of New York (to wit, on or about December 24th, 1872) a notice in conformity with such statute to create and thereby there was created in favor of the plaintiff a lien on said building and the premises whereon the same stands. And that thereafter, upon due notice to the defendant to appear herein and account, etc., an order was entered authorizing the putting in of the pleadings herein.
    The relief demanded was a sale of -the premises, etc.
    The defendant demurred, alleging that there were not sufficient facts stated to constitue a cause of action.
    The defendant had judgment, sustaining the demurrer, from which the plaintiff appealed.

      J. H. Whitelegge, attorney, and of counsel for appellant, urged :
    I. The allegation that the lien was filed “ in accordance with the statute, etc., and in conformity with the statute, is equivalent to saying that all the requirements of the statute had been complied with ; in other words, that the notice of lien was duly verified at the time of filing (23 Barb. 305; 2 Abb. 422 ; 3 Edw. Ch. R. 570; 2 Kerr, 433 ; 10 Abb. 102; Code, 162; 1 Chit. R. 245).

      No complaint is required by the act; it calls merely for the filing of a statement of the claim or demand.

    The defendant was informed* of the lien by the notice to foreclose.
    If she had any objections to raise as to the validity of the lien, she should have done so then, for after the statement is filed her objections could only go to the demand as stated.

      Marcus J. Waldheimer, attorney, and M. L. Townsend, of counsel for respondent, urged:
    First.—The complaint does not show that the notice which the plaintiff alleges he filed in the office of the clerk of the city and county of New York, on the 24th December, 1872, contained any of the particulars required by Section 6 of the act.
    A complaint is demurrable which does not show that the notice filed contained these particulars (Hallagan v. Herbert, 2 Daly, 253; Duffy v. McManus, 3 E. D. Smith, 657).
    The averment in the complaint, that the plaintiff on a day named filed£ £ a notice in conformity with such statute to create a lien, and whereby there was created in favor of the plaintiff a lien on said building and premises,” is not an averment of facts, but a conculsion of law, especially as no statute is referred to in conformity with which it is alleged the notice was filed.
   By the Court.—Monell J.

The creation of a lien upon real estate on behalf of a -mechanic, for labor done or materials furnished upon a building, furnishes a cumulative remedy for the collection of his demand. It does not supersede or interfere with the common-law remedy against the employer (Pollock v. Ehle, 2 E. D. Smith, 541).

But as a remedy provided by statute, it is requisite that the provisions of the statute should be strictly complied with (Beals v. Congregation B’nai Jeshumn, 1 E. D. Smith, 654). Hence the notice creating the lien must contain all the matter specified in the statute. Any omission in that regard would be fatal to the lien.

The question in this case, however, is as to the sufficiency of the pleading to foreclose the lien.

The complaint, after stating the performance of the work, alleges that “a notice in conformity with such statute to create, and whereby there was created a lien ” in the plaintiff’s favor, was “filed in the office of the clerk,” etc.

It does not appear, from the averment in the complaint, whether the notice was such an one as fully meets the requirements of the statute. The pleader has characterized it as a notice “in conformity with the statute,” and a notice “to create and whereby there was created a lien,” etc. But it cannot be seen from this averment that it is such a notice. The statute directs that the notice shall specify several things, and without them the notice would be nugatory.

The proceeding to foreclose the lien is by action, and the rules of pleading applicable to other actions of a similar nature are applicable to pleadings in this proceeding (Doughty v. Devlin, 1 E. D. Smith, 625).

In actions founded upon a cause of action given by a statute, it is not sufficient to merely refer to the statute, unless it is so provided in the statute; but all the facts ' which under the statute constitute the cause of action, must be alleged (Schroeppell v. Corning, 2 N. Y. R. 132).

It was not, therefore, sufficient in this case to merely allege that the notice conformed to the statute. The notice itself should have been set out, or its contents so stated that the court could have seen that the statute had been complied with.

This question has been directly adjudicated in the Common Pleas (Hallagan v. Herbert, 2 Daly, 253).

The appellant’s counsel claimed that great weight and significance should he given to the allegation of “due” notice. But that is a mere conclusion of law, and not a statement of a fact (Myers v. Machado, 6 Abb. 198 ; S. C. 6 Duer, 678).

The judgment appealed from should he affirmed. Curtis, J., concurred.


source: Caselaw Access Project

author: By the. Court.—Sedgwick, J.

license: Public Domain

text:
    JOSEPH A. STIDHAM, Plaintiff and Appellant, v. WATSON SANFORD, Defendant and Respondent.
    I. Frauds, Statute of. —Promise to pay the Debt of Another.
    1. Non-liability of promisor, instance of.

      a. When A. employs B. to do certain work, C. cannot be made liable therefor, on any one or all of the following grounds:
    1. That A., when he employed B., told him that C. would pay for the work.
    The fact that such representation had been made, never having been communicated to C., nor assented to by him.
    3. That while the work was going on, C. told B. to" go on and do the work ordered by A., and he would pay for it.
    3. That during the progress of the work, A. introduced C. to B. as his partner and coadjutor, in his work; that B. then showed C. what was being done in connection with A.; that C. expressed great satisfaction at what was being done, and told B. to go on and do all that A. ordered, and he would pay for it.
    II. Principal and Agent.
    1. Upon the above facts, C. cannot be made liable under any principle of law relating to Principal and Agent.

    HI. Ratification.
    1. Upon above facts, C. cannot be made liable under any principle of law relating to Batijieation.

    IV. Finding of Fact.—Evidence.—Reversal.
    1. "When a judgment will not be reversed on the ground that a finding of fact is aga/inst the evidence.

      a. Where the evidence, although relevant, only tends to, but does not necessarily of itself, establish a fact alleged to exist, the inference drawn by the referee, either that the fact does not exist, or that in. truth the fact as it exists is opposed to that alleged to exist, cannot be disturbed.

      Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.
    Appeal from a judgment in favor of defendant, entered on a referee’s report.
    The issues were tried "by a referee, who gave judgment for the defendant. The complaint alleges that the plaintiff at the request of defendant did certain work and sold and delivered to him certain goods, worth a certain sum which the defendant agreed to pay to the plaintiff.
    Before the case closed it seems to have been proved or recognized to be the fact, that originally the plaintiffs were requested to commence and finish the work, etc., by one Martin, who at the time said that the defendant would pay for the work.
    While the work was going on, and after it had been began, the defendant in company with Martin went to view it, and then met one of the plaintiffs. The latter testified on the trial that on such occasion the defendant told him to go on and do the work ordered by Mr. Martin, and he would pay for it. Another witness for plaintiff testified that on the same occasion the plaintiff showed the defendant what he was doing in connection with Mr. Martin, that the defendant was introduced to the plaintiff by Mr. Martin as his partner and coadjutor in his business, and that the defendant expressed great satisfaction at what he was doing—told him to go on and do all that Mr. Martin ordered him to do, and he would pay for it. The defendant had a single interview with the plaintiff.

      Royal S. Crane, attorney, and of coansel for appellant.

      Dailey & Perry, attorneys, and of counsel for respondent.
   By the. Court.—Sedgwick, J.

Assuming that the original party making the promise, express or implied, was Mr. Martin, the request of the defendant to continue the work, and his promise that he would pay, did not make him liable (Larsen Wyman, 14 Wend. 246). It was voluntary and without consideration.

Then the evidence must go the length of proving that in the first- place when Martin ordered the work, he acted for the defendant. If the evidence although relevant, was only testimony tending to show this, but did not of and by itself necessarily establish it; the inference drawn by the referee cannot be disturbed.

It nowhere appears in the case that the defendant was ever informed that Mr. Martin had at the time of his giving the order, said that Mr. Sanford would pay for it. If this had been shown, it may be that the referee would have been required (on proof that Mr. Sanford, upon hearing, did not dissent) to find that he thereby ratified (so to call it) Mr. Martin’s promise; as, however, it never was communicated to him, he cannot be held to have it ratified it (Rowan v. Hyatt, 45 N. Y. R. 141).

I think we must be satisfied with the referee’s finding that the original debt was Mr. Martin’s. The evidence of what the defendant subsequently did does not establish necessarily that Mr. Martin was an agent in giving the order of the defendant as his principal. If Mr. Martin acted for himself, it is entirely consistent with that that Mr. Sanford should do and say what was proven.

The fact that a credible witness testified that Mr. Martin, while the work was going on, introduced the defendant to the plaintiff as his partner and coadjutor in his business, and that then the defendant, expressing great satisfaction, told him to go on and do all that Mr. Martin ordered him to do, and he would pay for it, does not necessarily lead to the conclusion that they were partners at the time the work was ordered, and that it was ordered as part of the partnership business. If the referee, taking the whole case together, had found from that evidence such to be the fact, his conclusion would have had to be supported on the same principles that we must support his present conclusion upon. The referee had to find what the real, not the verbal, meaning of Mr. Martin’s words were, what business he referred to, whether the defendant heard, and understood what was said, and whether his promise to pay it himself did not show that it was not a partnership that was to pay it.

I therefore cannot see that there was any clear proof which required the referee to find otherwise than he did, and that the defendant was responsible' either as being at the time a partner of Martin, or that Martin was his agent then, or that he afterwards ratified the promise or engagement made by Martin that he should pay. This is the correct judgment, whether the findings and additional findings as made by the referee are taken by themselves, or the evidence in the case is considered in connection with them.

Judgment is affirmed, with costs.

Monell and Curtis, JJ., concur in the affirmation of the judgment.


author: By the Court.—Curtis, J.

text:
    MARIA KAISER, Plaintiff, v. VALENTINE HIRTH, Defendant.
    Landlobd and Tenant.—Ownebs and Occupants of Tenement Houses.
    1. Liability for injuries sustained by visitor—when landlord or owner not liable.

    When there was a stairway leading from the first floor to the cellar, through which the occupants of the house descended to the various portions of the cellar assigned to them, such stairway being immediately behind the stairway leading to the upper part of the building, and the open space at its entrance being provided with a trap-door, which, when shut, covered it, jutting out about two inches into the hallway and rendered the aperture safe ; but there were no other safeguards about its entrance, and a visitor to one of the occupants, on attempting to go upstairs, placed one foot on the ascending stairway and the other in the space forming the entrance to the descending stairway, the same being open by reason of the trap-door not being shut, and thereby fell and sustained injuries.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.
    Held,
    1. The defendant being both landlord and owner, and also an occupant, was not liable, it not appearing either that there was any defect or negligence in the construction of the stairway and its covering, or that when properly used it did not suffice to protect persons using the hallway, and was not all that reasonable care and prudence could suggest, or that defendant left the trap-door open, or caused or allowed ■it to be left open.
    2. Such landlord and owner is not bound to protect his tenants and their visitors from the consequences of their careless acts in the course of occupancy.
    3. The tenants are each liable for their respective negligence.
    4. Pbesttuftion of Negligence.

      a. In such case there is no presumption of negligence against any particular occupant.
    Exceptions ordered to "be heard at General Term.
    The action is brought to recover damages for injuries sustained by falling through a trap-door down a stairway into the cellar of premises owned by the defendant, and erected and used by him as a tenement-house for many families, and which had been carelessly left open. The defendant claims that the injuries sustained by the plaintiff were caused by negligence on her part solely.
    The plaintiff went to the house to visit her son, who was one of the tenants residing on the premises, between eleven and twelve o’ clock in the forenoon. About fourteen feet from the front entrance into the main hall a circular staircase rises from the side of the right-hand wall. At the farther side of this staircase, and just beyond it in a recess on the same side of the hall, is a staircase descending to the cellar, which is used by the various tenants to descend to their respective portions of the cellar. This is covered by a trap-door which juts out about two inches into the hall, and was placed there to protect persons from' falling down the stairway. The hall is lighted, but obscurely, from the entrances at each extremity. The trap-door being left open, the plaintiff stepped with one foot upon the stairs and the other into the open space where the trap-door should have been if properly closed, and falling, sustained injuries. There was some conflict of testimony as to how dark the hall was at the time.

      Kurzman and Seaman attorneys, and of counsel for plaintiff, urged:
    The defendant, as owner, is liable for negligent construction of demised premises (Sher, and Red. on Neg. 56; Eakin v. Brown, 1 E. D. Smith, 44; Anderson v. Dickie, 1 Robt. 238). And also for nuisance erected or suffered by him (Sher. and Red. on Neg. 56 ; Congreve v. Smith, 18 N. Y. 79).
    II. The owner and landlord are held liable for damages caused by unprotected trap-doors in passage-ways (Sher. and Red. on Neg. 508-9 ; Freer v. Cameron, 4 Rich. [S. C.] L. Rep. 228; Chapman v. Rothwell, E. B. & E. 168; Karl V. Maillard, 3d Bosw. 591; Carman v. Eastern Co. R. R. Co., 4 Hurl. & Norm. 781; Pickard n. Smith, 10 Com. Bench, [R. S.] 470).
    III. . The landlord is liable when he lets a house so constructed as to be unfit for use of tenant or unsafe for habitation (Grodley v. Hagerty, 20 Penn. State, 387).
    IY. ¡Both landlord and tenant may be liable for use, if construction be negligent and unsafe (Sher, and Red. on

      Neg. 56; Irwin v. Fowler, 5 Robt. 482; Anderson v. Dickie, 1 Robt. 238).
    Y. The cases relied on as important are those of Wharves, Railways, Factories, etc. Bnt there is no case to the effect that the owner of a dwelling or tenement-house is not liable to the visitor of his tenant for injuries caused by the owner’s gross negligence, in building or keeping the house, merely because the person injured did not enter the premises on business with, or by the invitation of, .the owner (Southcote v. Stanley, 1 Hurl. & Norm. 247; Godley v. Hagerty, 20 Penn. State, 387).
    The case of a tenement dwelling, promiscuously hired, is still stronger.
    In such houses, just as in hotels, the halls and stairways are, in a limited sense, highways; and the owner should be liable for negligence just as he may be for negligence about a coal-hole in the sidewalk.
    Neither the facts nor the reasoning of the court in Robbins v. Mount seem to be applicable to this case. The defendant, Mount, was held not responsible as owner, being only executor, with power to collect the rents, and the infant defendants, Cora and Myra Moffat were held not responsible as owners of the fee, because, as infants, they could not appoint an agent, nor be responsible for the negligence of any agent they might undertake to appoint. Besides this, the evidence did not connect either the infants or the executor with any negligence, and the negligence, though proved, was not fastened on any particular person.

      Peter Cook, attorney, and David Mc Adam, of counsel for defendant, urged:
    I. Negligence must be proved and will not be inferred, and the mere fact of an injury having been suffered is not enough to establish a charge of negligence against a defendant (Sherman and Redfield on Negligence, § 5; Curran v. Warren Chemical Co., 36 N. Y. 153 ; Ferry v. The Mayor, 8 Bosw. 504; 4 Abb. N. S. 273). The defendant was not Hable because he occupied part of the house in question (Moore v. Goedel, 34 N. Y. 527 ; aff. 7 Bosw. 591).
    II. As owner, the defendant is not liable; (Robbins v. Mount, 4 Robertson, at pp. 565, 566 ; Eakin v. Brown, 1 E. D. Smith, 36).

      (b.) The tenant is prima fade liable for all such accidents ; (Eakin v. Brown, 1 E. D. Smith, 36 ; Mayor v. Corlies, 2 Sandf. 301).
    (c.) There is no difference as to liability between the owner of a tenement-house and any other (Doupe v. Genin, 45 N. Y. 119).

      (d.) As owner, the defennant owed the plaintiff no duty (Cheetham v. Hampson, 4 T. R. 318 ; Bolch v. Smith, 7 Hurl. & Nor. 736 ; Southcote v. Stanley, 1 Hurl. & Nor. 249; Robbins v. Jones, 15 Com. Bench N. S. 240; Colles v. Seldon, 3 Law C. P. R. 495 ; Sullivan v. Waters, 14 Jurist C. L. R. 466 ; Chantlier v. Robinson, 4 W. H. & G. 170 ; Hounsel v. Smyth, 7 Com. Bench N. S. 731 ; Gauntrels v. Egertoy, Law. Rep. 2 C. P. 370 ; 25 L. J. Ex. 339; O’Brien v. Capwell, 59 Barb. 497, and cases cited; Sherman & Redfield on Negligence, §§ 503, 504; Robbins Jones, 15 C. B. N. S. 221, 240).
    III. If the plaintiff and the one that left the doorway open are not the persons who alone caused the injury complained of, then it is a case of unavoidable accident, for which the law holds no one responsible (Dygert v. Bradley, 8 Wend. 469 ; Bullock v. Balcock, 3 Wend. 391; Center v. Finney, 17 Barb. 94).
    IY. The nonsuit was properly granted, for upon the uncontroverted facts the question of negligence was one of law to be decided by the court, and not one of fact to be submitted to the jury (Phillips v. Rens. & Lar. R. R. Co. 49 N. Y. 177; Gonzales v. N. Y. & H. R. R. Co., 38 N. Y. 440; Wilcox v. Rome & W. R. R. Co., 39 N. Y. 365; Johnson v. Hudson R. R. R. Co., 30 N. Y. 73 ; 34 N. Y. 430; 39 N. Y. 61 ; 34 How. 97: 3 Duer. 59 ; 3 Robts. 35). And this rule has been applied to cases not unlike the present, for example: (Toomey v. London, Brighton & S. R. R. Co., 3 Com. B. N. S. 146; Crafter v. Metropolitan Railway Co., Law Rep. C. P. vol. 1, 300; Cotton v. Wood, 98 Eng. Com. Law 566; 8 C. B., N. S. 573).
   By the Court.—Curtis, J.

Although, on the trial, this stairway was described as a well-hole by one of the witnesses, and spoken of as a hatchway, yet when covered with a trap-door such description cannot be considered as technically correct. The evidence in the case fails to show any defect or negligence in its construction, or that when properly used it does not suffice to protect persons having occasion to use the hallway, and to be all that reasonable care and prudence can suggest.

The carelessness and negligence of tenants may convert almost any part or fixture of a building into a source of damage or injury to some one. It is difficult to conceive of means that will prevent the consequences of their leaving doors open, or gas or water flowing in premises that may be occupied by them ; but for their negligent acts in these respects the law holds them responsible.

In the present case there is no evidence that the defendant, who occupied a part of the building, or any tenant of his, left the trap-door open. They are each liable for their respective negligence, and there can be no presumption of negligence against any particular occupant (Moore v. Goedel, 34 N. Y. R. 537). The testimony fails entirely to show who left the trap-door open, or that the defendant allowed it to be open. It does not appear that it was constructed without proper care, or that its careful use would be productive of injury to any one. Such being .the case, it would be unjust to hold the owner of the premises responsible for the negligent use of it. He discharged his duty to his tenants and their visitors when he made this provision for their protection, which was safe unless carelessly used, and he is not hound to protect them from the consequences of their careless acts in the course of occupancy. It being entirely clear that it was safe if used with care, and there being no proof that the defendant left it open, or caused or allowed it to be left open, the court properly dismissed the complaint.

The case of Robbins v. Mount (4 Robt. 565, 566), is directly in point» and the court there held precisely this view in respect to the liability of the owners of premises for the negligence of their tenants.

The exceptions to the decision of the court, dismissing the complaint, are overruled, and judgment is ordered for the defendant on the verdict, with costs.


author: By the Court.—Monell, J.

text:
    THEODOSIA ANN FINK, Plaintiff and Respondent, v. THOMAS P. ALLEN and BRIDGET, his wife, Defendants and Appellants.
    I. Another Action pending.—Section 122 op the Code.
    1. A party defendant cannot be compelled by a co-defendant to settle in the action to which they are hoth defendants a controversy existing between them which does not spring out of the adjustment between them of the joint claim against them made by the plaintiff in .the action.
    1. Therefore the pendency of an action in which one defendant, by his answer therein, attempted to force a co-defendant to settle therein a controversy respecting the right of such co-defendant under a certain instrument cannot be pleaded in bar or abatement, as another action,pending, to an action subsequently commenced on said instrument by such co-defendant against the defendant who so answered in the first action. a. Instance.
    S. held a mortgage made by A. to her on certain premises for $1,500. Subsequently A. executed to F. a mortgage on the same premises for $4,000, and received on that mortgage from B., the agent of F., who was also the agent of S., $4,000, less the principal and interest due on the mortgage of S., under certain representations of B., that he would discharge the mortgage of S. of record. S.’s mortgage was not discharged of record, nor was the money retained out of the $4,000 paid over or accounted for to her by B.
    S. commenced an action against A. and F., to foreclose her mortgage; A. answered, setting forth the above facts, and claiming that S.’s mortgage was thereby paid and discharged, or if it should be adjudged that the same was not paid and discharged, then claiming that he was only liable to F. for the amount of her mortgage less the amount of S.’s mortgage, and that F.’s mortgage should in that event be adjudged to be a valid debt and lien for such balance only, and prayed that F. might be interpleaded in said action, and that she might answer the same as if defendant A. had commenced an action against (for the interpleader of) S. and F., and that defendant A. might have judgment dismissing the complaint. F. did not answer said apswer of A., or the complaint of S., nor was she interpleaded. In this action brought by F. against A. and his wife, A. pleaded the pend-ency of the action brought by S., and that S. was a necessary party.
    Held,
    That the answer constituted no defence.
    II. Parties under Section 122 of the Code.
    1. Who not necessary.

      a. In the case put above S. is not a necessary party to an action by F. to foreclose her mortgage.
    HI. Principal and Agent.
    1. Attorney employed by F. to loan for her money on unencumbered property, and by A to procure for him, a loan on certain property on which there was a mortgage.
    Held,
    1. That the attorney was the agent of A. to remove the encumbrances.
    2. Therefore money retained by him out of the loan made by F. to A. for the purpose of paying off the encumbrance, but not applied by him to that purpose, could not be deducted from the principal sum secured by the mortgage from A. to F., either as a payment or failure of consideration to that extent.

      Before Monell and Sedgwick, JJ.

      Decided November 29, 1873.
    Appeal from judgment.
    The action was to foreclose a mortgage made "by the defendants to the plaintiff. The defence was partial payment and the pendency of another action.
    Upon the first defence it was alleged that at the time of the execution and delivery of the mortgage in suit, Susan B. Stevenson was the holder of a prior mortgage upon the same premises, made "by the defendants, for the sum of fifteen hundred dollars. That one Smith Barker was the attorney and agent of said Stevenson, in the management of her finances, and had the custody of part of her securities, and was authorized to receive payment thereof. That said Stevenson, on or before the execution and delivery of the plaintiff’s mortgage, either delivered her said mortgage to said Barker, or said Barker then had it in his possession, with a certificate of satisfaction of the same duly acknowledged "by her, for said Barker, to receive payment thereof out of the moneys to be loaned by the plaintiff upon the mortgage in suit. It was further alleged that said Barker was also the attorney and agent, of the plaintiff in the management of her finances, and was such agent at the time of the making the mortgage to her. That the defendant applied to said Barker for a loan of $4,000, and stated that out of it he intended to pay the Stevenson mortgage. That said Barker informed the defendant that the plaintiff would make the loan, and that he, said Barker, acting as her agent, would out of the loan pay and discharge the Stevenson mortgage, and procure it to be satisfied of record.
    That thereupon the defendant executed and delivered the said mortgage to the plaintiff, said Barker at the time representing, that he then had a satisfaction piece of the Stevenson mortgage, duly acknowledged by said Stevenson, and that he would deliver the same to the register and have said mortgate discharged of record. That relying upon such representations of said Barker, agent of said Stevenson and of the plaintiff, the defendant left the plaintiff’s mortgage with said Barker, who gave the defendant his check for the balance of said loan, after deducting and retaining the principal and interest due on the Stevenson mortgage, and which sum so deducted and retained was never paid to said Stevenson, nor to said defendants, nor was said Stevenson’s mortgage discharged of record.
    Upon the second defence, it appeared that an action was pending, to foreclose the Stevenson mortgage, in' which the plaintiff and defendant in this action are parties defendants, and in which the defendant in this action has alleged the facts set up in this action, and has claimed that the Stevenson mortgage was thereby paid and discharged, or if it should be adjudged that the same was not paid and discharged, then that he was only liable to said Fink for the amount of her mortgage less the amount of the Stevenson mortgage, and that said Fink’s mortgage should in that event be adjudged to be a valid debt and lien for such balance only, and has prayed that said Fink might be interpleaded in said action, and that she might answer the allegations of the answer the same as if defendant Allen had commenced an action against (for the interpleader of) said Stevenson and Fink, and that said Allen might have judgment dismissing the complaint. • Fink did not answer said answer of Allen to the complaint of Stevenson, nor was she interpleaded. Defendant Allen pleaded to the complaint in this action the pendency of the action brought by Stevenson, and that Stevenson was a necessary party to this action.
    This action was tried by the court without a jury, and the following facts found:—“ That the plaintiff placed four thousand dollars in the hands of Smith Barker, Esq., an attorney, to loan for her. The same attorney was also acting in that capacity for Susan E. Stevenson in loaning money for her, and as such had loaned for her $1,500 to the defendant, which was secured by a mortgage on the premises in question, executed and recorded previously to the one made by the defendants to the plaintiff. He had also for many years been employed by the plaintiff in making loans. He had been employed by the defendants as their attorney in examining the title to the premises in question, and in procuring for them both of the loans.
    '‘ That it was arranged between the defendants and this attorney that the mortgage of fifteen hundred dollars should be paid from the new loan of four thousand dollars, he stating to them that it could not be procured otherwise, and that it must be on unencumbered property. . When the defendants executed the mortgage to the plaintiff to secure the four thousand dollars, he produced a satisfaction piece duly executed of the fifteen hundred dollar mortgage, and stated that it was paid, and, after deducting the amount of it with interest, and his charges for examining the title, he paid the balance of the four thousand dollars—viz., twenty-four hundred and eight dollars and sixty-two cents—to the defendants.
    “ That the defendants continued to pay the interest on the four thousand dollars until they discovered, on November 1,1872, that the mortgage of fifteen hundred dollars on the property remained unsatisfied of record, and was in fact unpaid. The attorney died in June, 1872, having himself, without defendant’s knowledge, continued to pay the interest on the fifteen hundred dollar mortgage. Susan E. Stevenson commenced an action in the Supreme Court to foreclose the mortgage to her of fifteen hundred dollars, in January, 1873, making the plaintiff in the present suit, and the defendants herein, Allen and wife, parties defendant to her suit in the Supreme Court. The plaintiff and defendants in this action appeared in said recited action before the commencement of this action; that the said plaintiff did not answer. The defendants answered the complaint, and therein alleged substantially the same facts as are set forth in their answer in this action as to the bonds, mortgages, the representations and acts of the said attorney, his agency, the deduction by him from the four thousand dollars of fifteen hundred dollars, and interest, for the discharge of said Susan E. Stevenson’s mortgage, their ignorance of the fact, of its not being discharged, etc., and praying that the said plaintiff and said defendant in said recited action might interplead, and for other relief, and as set forth in their answer in this action. That a copy of said answer was served on the attorney of said defendant, Theodosia A. Fink; that such answer in said action, except as to payment of said fifteen hundred dollar mortgage, was struck out by order of the court, and such order affirmed on appeal; that the said action came on for trial before the Supreme Court, and judgment was rendered that the said mortgage for fifteen hundred dollars was not paid, and for the foreclosure thereof, and sale of said property.
    " That the evidence fails to show that the attorney was the agent of the plaintiff for the purpose of paying off the fifteen hundred dollar mortgage, but it shows that she entrusted him with the four thousand dollars to invest for her. She understood that it would be loaned on unencumbered property. Such had been his practice in making loans for the plaintiff during a long series of years. There was no express agreement between them that the four thousand dollars should be loaned in this way. The plaintiff never heard that there was a mortgage prior to hers on the premises until after she had made her loan.
    " The plaintiff employed the attorney to loan the money on mortgage. She gave him no authority to do or to omit to do anything in respect to the Stevenson mortgage. She knew nothing about it at that time, and was under no obligation to clear the title of encumbrances, and assumed none. Neither was it within the scope of the authority conferred by her upon the attorney to assume any such obligation.
    ■ ‘ ‘ That the said attorney was the agent of the defendant to clear the- title of this encumbrance of fifteen hundred dollars.
    ‘ ‘ That the plaintiff never authorized the attorney to pay the prior mortgage or to get it off. The defendants told him to do so, and they acquiesced in his retaining the amount, and also the satisfaction piece, and he acted on their behalf and as their agent for that purpose.
    “ That the parties were alike ignorant of the wrongful act of the attorney in appropriating the money so deducted to his own use, and omitting to discharge the mortgage of record.”
    Upon these facts the defence was overruled, and judgment entered for the plaintiff.
    The defendants excepted to the findings, and appealed from the judgment.

      Francis Byrne, attorney, and of counsel for appellants, urged:
    First.—Mr. Barker was the agent of the respondent in procuring the loan (Williams v. Walker, 2 Sand. Ch. R. 325; Arnold v. Robertson, 3 Daly, 298; Condit r. Baldwin, 21 N. Y. R. 219).
    Second.—The respondent was bound to have her rights determined in the first action : § 274 [as amended by act 1862], § 118 [as amended by act 1867], § 122 [as amended by act 1851]); and the pendency of the same is a bar to this action, and the complaint should have been dismissed, as moved for. (Code, §§ 144, 147; Groshon n. Lyon, 16 Barb. 461; Woodworth v. Bellows, 4 How. Pr. 24; Norbury v. Seely, 4 How. Pr., 73;
      Tower v. White, 10 Paige, 395; Kay v. Whittaker, 46 N. R 565, etc., at p. 576).

      Jacob F. Miller, attorney, and of counsel for respondent, urged:
    First.—The plea of a former action pending is not available (Kelsey v. Ward, 16 Abb. 98; Mallory v. Horan, 49 N. Y. 116 ; Whitcomb v. Williams, 4 Pick. 228; King v. Chase, 15 N. H. Reports, 13; Mathew v. Duryee, 4 Keyes, 538; Goddard v. Benson, 15 Abb. 191; Matter of Sipperly, 44 Barb. 371).
    Second.—The plaintiff in this action could not have a judgment of foreclosure of her mortgage in the first action in which she was defendant (Mechanics’ & Traders’ Ins. Co. v. Roberts, 29 1 Abb. 381; 39 How 6).
    Third.—The court could not adjust the equities between the defendants in the former action. It could adjust them only as they relate to the plaintiff1 s claim therein. The plaintiff herein could therefore expect no benefit from the former action (Tracy v. N. Y. Steam Faucet Co., 1 E. D. Smith, 349 ; Wells v. Smith, 7 Abb. 263 ; Stephens v. Hall, 2 Rob. 676 ; Wright v. Delafield, 25 N. Y. 268 ; Kay v. Whitaker, 44 N. Y. 565, 576).
    Fourth.—The plaintiff has a legal right to enforce her contract in court (King v. West, 10 How. 333).
    Fifth.—This is not a case for interpleader. The person claiming an interpleader must himself bring the action. He must be an actor; he cannot have it as defendant (Atkinson v. Manks, 1 Cowan, 703 ; Cooper’s Eq. Plead. 456 ; Harrison’s Ch. Pr. 96; Mad. Ch. 172, 173).
    Sixth.—Mr. Barker was the agent of the defendants for everything connected with the Stevenson mortgage (Bank of United States v. Davis, 2 Hill, 462; Story on Agency, 131; Jeffrey v. Bigelow, 13 Wend. 521).
    Seventh.—An agent can bind 'his principal only when acting within the scope of his real or apparent authority
      (Sherman and Redfield on Negligence, § 212; Bowman y. Tallman, 2 Robertson, 385).
    Uponi the delivery of the bond and mortgage by defendants to Mr. Barker for this plaintiff, the money became, in judgment of law, the property of Mr. Barker as its custodian or as trustee. .The money was held subject to Mr. Allen’s order. If Mr. Barker failed to comply with Mr. Allen’s order, Mr. Allen has a just claim against his estate for the money retained, but he has not an offset against the plaintiff’s bond and mortgage (Sanford v. Handy, 23 Wend. 267; Colvin v. Holbrook, 2 Comst. 129; Scott v. McGrath, 7 Barb. 55;. Condit v. Baldwin, 21 N. Y. 220; Blake v. Ferris, 5 N. Y. 49; Spraight v. Hawley, 39 N. Y. 448 ; New York Life Ins. and Trust Co. v. Beebe, 7 N. Y. 369; Martin y. Farnsworth, 40 N. Y. 555).
    Eighth.—The defendants are estopped from denying the validity of the plaintiff’s claim. They have recognized it, by paying the interest for three years and upwards (Parsons on Contracts, vol. 1, p. 49; Bridenbecker v. Lowell, 32 Barb. 19; Cairns vc. Bleecker, 12 Johns. 300).
    Ninth.—Assuming that the parties to this action are equally innocent, still the defendants should suffer the loss, inasmuch as they by their authority or indiscretion enabled Mr. Barker to commit the act which occasioned the loss (Henry v. Wilkes, 37 N. Y. 565).
   By the Court.—Monell, J.

The defence of another action pending was an attempt by the defendants to avail themselves of a provision of law which would seem, perhaps, to allow it. It is provided that the court may settle any controversy between the parties before it (Code, § 122), if it can be done without prejudice to the rights of others.

I have no doubt that in the foreclosure suit of Mr. Stevenson, it was within the power of the court, upon a proper issue "between the plaintiff in this action and the mortgagor in that, to have tried and determined the controversy "between those parties. The foreclosure suit could have gone on, and need not have "been delayed "by the side issue. The determination of the controversy, if in favor of the mortgagor, would have affected the plaintiff’s claim to the surplus, had there "been any, to the extent of the money detained "by Barker, and nothing more.

This might have "been done. But as it was a controversy solely between the plaintiff and defendant in this action, in Avhich the plaintiff in the other action had no interest whatever, it required at least the consent of all parties concerned in the controversy.

Had Mrs. Fink taken issue in that action to the claim Allen made, such issue might have been determined in that action; but it would have been in effect an independent action between those parties.

I do not understand the law referred to, to mean that parties defendants can be allowed, in an action where they are made defendants, to settle any controversies they may have, unless it is done by their voluntary submission. A defendant cannot be compelled to litigate , under such circumstances ; and if he refuses to do so, he will not be estopped or debarred of his cause of action or defence.

The plaintiff in this action did not accept the challenge of the defendant to settle their differences in the other action; and nothing was or could be settled without his submission.

But the section of the Code referred to means no more than that defendants who have appeared and answered respecting the plaintiff’s claim may, as a part of the adjustment of that claim, have the equities between themselves, in respect to such joint claim, adjusted in that action (Kay v. Whittaker, 44 N. Y. R. 565, 576).

Such a state of things does not exist in this case. The controversy sought to have been brought into the former suit was apart from, and wholly independent 'of, the plaintiff’s claim in that action, and therefore could not, at least without the consent of both the parties, be determined in that action.

The defence of another action pending was correctly overruled.

The other defence, of part payment or of partial failure of consideration, rests solely upon whether the plaintiff is to be held responsible for the acts of Barker.

Upon the evidence, the learned judge has found that Barker was the defendant’s agent “to clear the title of this incumbranceand was not the plaintiff’s agent for any such purpose; his finding in that regard being, that Barker had no ‘ ‘ authority to do or omit to do anything in respect to the Stevenson mortgage.”

It is apparent that the defendant, when he left the amount of the Stevenson mortgage in Barker’s hands, was led to do so by the representation of Barker that he already had the satisfaction piece, and by his promise to deliver it to the register, and have the mortgage cancelled of record. But I cannot find that in making such representation and promise, Barker was acting for or on behalf of the plaintiff. Certainly there is no evidence that it was within any authority which the plaintiff had given him. As the learned judge says in' his findings, the plaintiff “knew nothing about the Stevenson mortgage at that time ; was under no. obligation to clear the title of the incumbrance, and assumed no such obligation.”

These findings of fact, are, I think, abundantly supported by the evidence, and are destructive of the defence.

The judgment should be affirmed, with costs.

Sedgwick, J., concurred.


author: By the Court.—Freedman, J.

text:
    WILLIAM R. CARNES (substituted as plaintiff in the place of MARTHA B. CARNES, deceased), Plaintiff and Respondent, v. GEORGE W. PLATT, impleaded, etc., Defendant and Appellant.
    I. New Trial.—Motion for, on the Ground that the Evidence
    AUTHORIZES NO OTHER VERDICT THAN ONE IN FAVOR OF THE MOVING PARTY.
    1. Motion made on the minutes of the judge.

    1. When the motion on such ground is made on the minutes and denied, it cannot, in the absence of error, be argued on appeal that the verdict is against the weight of evidence when that point was not raised at the trial either on a motion to dismiss the complaint, or by a request for the direction of a verdict.

    3. Motion at Special Term made on a case and exceptions.

    1. Query.—On an appeal from sen order of the Special Term denying snch motion, as well as from the judgment, it may be questioned whether, under the provisions of the Code, it is not the duty of the General Term to examine the evidence for the purpose of ascertaining whether the verdict shall stand.
    II. ATTORNEY AND CLIENT.—EVIDENCE.
    1. Priveleged Communications not admissible.

      a. Application of principle.

    1. An attorney cannot be allowed to testify that he was originally employed by A. in relation to enforcing a judgment against certain property, and that in consequence of his advice an agreement was made between A. and B. whereby B. should procure an as- ■ signment of the judgment in his own name or that of some third person, and that the subsequent proceedings to enforce the judgment should be had under the directions of the assignee.
    1. An offer to confine the testimony of the attorney to what passed between him and A. is open to the same objection.

      b. The law relating to the privilege of communications between attorney and client considered and many cases cited.
    III. Trial.—Order of Proof.—Refusal to receive Evidence unless CONNECTED, NOT THE SUBJECT OF EXCEPTIONS.
    1. WTien evidence is offered which is incompetent unless the plaintiff is connected with it, the refusal to receive it before such connection is made is matter resting in the discretion of the trial judge, and not the subject of an exception.

      Before Barbour, Ch. J., Monell and Freedman, JJ„

      Decided November 29, 1873.
    XV. The opinion op Judge Monell in Carnes v. Platt, reported in 1st Sweeny, 145, is the opinion op the court, and not a mere concurring opinion, as there erroneously reported.
    Appeal by defendant from judgment in ejectment awarding plaintiff an estate for life in the premises described in the complaint, with a right to the present possession.
    A statement of the facts appears in 6 Robt. 270.

      James C. Carter, for appellant.

      Daniel T. Walden, for respondent.
   By the Court.—Freedman, J.

This is the third time that this case comes before the General Term of this court. On each of the two former occasions (6 Robt. 270, and 1 Sweeny, 140), it was held that the facts of the case, as disclosed by the evidence, were not sufficient to establish that Houghton delivered the deed in question to Wetmore for the use of Anthony absolutely and with intent to pass the title to Anthony prior to the 10th of August, 1854, the date of the record of the judgment of the Merchants’ Bank of Boston against Houghton, and that Wetmore so received it, and that consequently there was, as matter of law, no absolute delivery and acceptance before that day. The Court of Appeals, however, decided that it was for the jury to determine these questions as questions of fact in view of all the circumstances surrounding the transaction. On the third trial this was done, and the jury, under a charge which was quite favorable to the defendant, determined these questions in favor of the plaintiff. And although some other questions were formally presented "by a motion to dismiss the complaint, yet the point that the evidence authorized no other verdict than a verdict for the defendant was raised neither by that motion nor by a request for the direction of a verdict. The defendant throughout the trial treated the case as one that could be determined only by the jury, and having done so, if his motion for a new trial had been made solely on the judge’s minutes, he would not, in the absence of error, be entitled to argue now that the verdict is against the weight of evidence (Rowe v. Stevens, 34 N. Y. Supr. Ct. R. 436). But as the motion appears to have been subsequently made on a case and exceptions, and the appeal is from the order of the Special Term denying such motion as well as from the judgment, it may be questioned whether, under the provisions of the Code, it is not the duty of the General Term to examine the evidence for the purpose of ascertaining whether the verdict shall stand. I have therefore made such examination, but have been unable to find anything in the evidence that under the law applicable to the case, as finally settled by the Court of Appeals, would warrant a disturbance of the verdict.

The counsel for the defendant requested the court below to submit to the jury, as a question for them, «whether the assignment of the judgment to Martha B. Carnes was procured by Charles W. Houghton, and for his benefit, without any intention to retain a lien or security on the judgment for the money advanced to obtain the assignment. The court refused to submit this question to the jury, and to such refusal defendant’s counsel duly excepted. The law applicable to this branch of the case must, for the purposes of this appeal at least, be deemed to have been laid down in the opinion delivered by Mr. Justice Monell on the second appeal. This opinion was the opinion of the court on that occasion, and not a mere concurring opinion as erroneously reported in 1 Sweeny, 145. The same request was substantially made on the trial which resulted in the judgment from which the second appeal was taken, and the question now present was therefore necessarily involved in the decision there enunciated. The law as then laid down stands unreversed to this day, and must for that reason still control. It is true the evidence given on the present trial, so far as it relates to the request now under consideration, was more voluminous than that given upon the preceding trial, but when tested by the rules laid down in the opinion of Mr. Justice Moxell above referred to, it was in legal effect no stronger than on the preceding occasion, and consequently the request for its submission to the jury was properly denied. . '

The offer of the defendant to prove by the witness Litch, that he was originally employed by Charles W. Houghton in relation to enforcing this judgment against the property described in the complaint, and that in consequence of advice from the witness, arrangement was made between Charles W. Houghton and Mr. Carnes that Mr. Carnes should procure an assignment of the j udgment in his own name or that of some third person, and that the subsequent proceedings, in order to enforce the judgment, should be had under the direction of such assignee, was properly excluded for the0 reasons, first, that because so far as it went it was insufficient to establish a defence; and second, because it called for the disclosure of confidential communications that had passed between an attorney and his client. It has long been settled, as was pointed out by Wigram, V. C., in Walsingham v. Goodricke (3 Hare, 124), that communications between solicitor and client, made pending litigation, and with reference to such litigation, or made before litigation, but in contemplation of and with reference to litigation which was expected and afterward arose, or made after the dispute between the parties followed by litigation, but not in contemplation of or with reference to such litigation, are privileged from disclosure, whether the party interrogated be the solicitor or the client. It has also been settled that professional communications between a party and his professional adviser, although they do not relate to any litigation, either commenced or anticipated, are privileged where the solicitor is the party interrogated. This privilege now extends equally to both parties (Minet v. Morgan, 21 W. R. 467; L. R., 8 Ch. 361; Williams v. Fitch, 18 N. Y., 546, 550; Britton v. Lorenz, 45 N. Y. 51, 59).

The renewal of the last offer, with the addition that the offered proof was to be confined to what occurred between the witness and Houghton, and that it was to be connected subsequently with proof that Mr. Carnes was made cognizant of the arrangement—not by this witness —and assented to it, and came into it, was also properly rejected. It was open to the same objections as the first offer, and to the additional one that the proposed evidence was clearly not competent unless the plaintiff was connected with it. The refusal to receive it before such connection was made was a matter resting in the discretion of the court, and therefore not the subject of an exception.

The remaining exceptions appear to be equally untenable.

The judgment and order appealed from should be severally affirmed, with costs.

Barbour, C. J., and Moítell, J., concurred.


author: By the Court.—Sedgwick, J.

text:
    JOHN H. STARIN, Plaintiff and Respondent, v. JOHN KELLY, Sheriff, Defendant, and Appellant.
    I. Fraud—Sale by a Debtor of Bis Property. —Promissory Note.
    1. What circumsta/nee affords evidence tending to show the fraudulent aha/raeter of a pretended sale and purchase.

    1. The fact that the purchaser gave inis promissory notes for the purchase-money, is such a circumstance.

      a. The possibility that the notes might go into the hands of one who, if the sale and purchase were fraudulent, could not recover on them, may properly he weighed by the jury in determining whether the purchase was made by the purchaser in good faith and for a valuable consideration.
    1. The jury is not to consider the circumstance as conclusive of itself. It is but one fact, to which a proper and not an undue weight should be given.

      b. This is so, although the purchaser may have given a valuable consideration to some extent.
    1. Valuable consideration in such case,

      a. The surrender to the seller of his note held by the purchaser is—

      2. Request to charge in the above aspect.

      a. A request to the court to Charge that if the sale and purchase were made to hinder, delay, and defraud creditors, the notes which were given on account of the purchaser could not be recovered on by the holder, should be granted.
    1. The defendant is entitled to have the jury instructed that at the time of the giving of the notes there existed a possibility that they would come to' the hands of a holder who could not enforce them if the sale and purchase were fraudulent, so that the jury might consider such possibility in determining from the evidence whether the plaintiff was a purchaser in good faith and for a valuable consideration.
    5. Request not defective.

    1. It is not defective in that it does not state the mode in which the jury should use its proposition.
    3. Ro?' is it defective in that it referred to the rights of a person receiving the notes after the sale was consummated. a. Because it is the possibility that the notes might come into the hands of a holder who could not enforce them that the jury are to weigh, and when that possibility has become

      a reality, the court may use thefaat in stating the legal rule.

    Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.
    1. Possibility becomes a pact when the notes are transferred on account of a part indebtedness, no part of which is satisfied or discharged.
    2. What is not sufficient to affect a purchaser.

    1. The mere fact that the seller transferred the purchaser’s notes with a view of placing his property out of reach of legal process, and to compel his creditors to take the notes, is not.

      A refusal to charge. A refusal to charge such proposition is correct.
    H. Charge.—Trial.
    1. Request to charge—what properly refused on the ground that it refers to matters of fact.

      a. A request to charge that “the sale of an entire stock of goods, which is liable to execution, of a debtor who is embarrassed, or who anticipates that he cannot meet the payment of his debts when and as they become due for the notes of a person of limited responsibility, as compared with the amount of the property transferred, having a long period to run, with the intention of turning over the notes, is void, irrespective of the question of fraudulent intent ” —is properly refused on such ground.
    2. Exception to charge as to what must appear as against a purchaser to render the transaction void when not well tahen.

      a. When the charge is “ that when a sale and purchase are made with intent to defraud creditors, the whole transaction is void, provided that intention existed on the part of the purchaser as well as of the vendor.” An exception to the proviso is not well taken.
    1. The charge is correct so far as it goes.

    Appeal by defendant from a judgment entered on the verdict of a jury.
    The facts sufficiently appear in the opinion.
    Brown, Hall & Vanderpoel, attorneys, and A. J. Vanderpoel, of counsel for appellant.
    Tracy, Talmadge & Lee, attorneys, and Wm. Tracy, of counsel for respondent.
   By the Court.—Sedgwick, J.

On the trial of this action the plaintiff gave evidence that one Besson sold and delivered the property in controversy to him in consideration of certain promissory notes made by him, and of the surrender to Besson of the latter’s note ($1,200), on which the plaintiff had at a former time advanced the face. The defendant gave evidence that he had taken the property under an attachment and execution against Besson’s property, issued in behalf of a creditor of the latter. Evidence was given sufficient to take the case to the jury, on the issue as to the sale to the plaintiff being fraudulent against Besson’s creditors. It was shown that Besson was indebted in a large sum to his wife, and had delivered the plaintiff’s notes to his wife on account of that indebtedness. At the time of the trial Mrs. Besson held these notes.

The defendant’s counsel asked the court to charge that if the sale and purchase was made with intent to hinder, delay, and defraud creditors, the notes which were given on account of the purchase.could not be recovered by the holder.

Undoubtedly in cases like this the exact character of what the purchaser gives for the property is a matter that the jury must weigh. In determining from circumstances whether the plaintiff had notice of a fraudulent intent on Besson’s part, the jury might consider the fact that the law, which the plaintiff was presumed to know, would not make him liable upon promissory notes he might give on a fraudulent purchase by him, except they were transferred and taken bond fide for value. At the time of the purchase, before it was completed, and still when the plaintiff had made up his mind to give the notes, there were various possibilities as to the direction these notes might take. They might go into the hands of a bona-fide holder or they might go into the hands of a person who would not be such' a holder. The jury was to look at the plaintiff’s mind to see if it was influenced hy such, a consideration. His purpose and intent would thus he investigated in view of all the facts, one of which would he the actual liability he incurred on the one hand if the sale was valid, or on the other if it were invalid. We can see that this is just, if we suppose that a jury was told not to regard the circumstance that a purchaser had given money, which he could not recover if the sale were a fraudulent one. If the jury had been instructed as to whether Mrs. Besson is a boná-fide holder, as to whether she could enforce the note's more than Mr. Besson, and as to whether, if the sale were a fraudulent one on the part of both plaintiff and Besson, the latter could collect the notes from the plaintiff, it could have the better judged of the motives of the plaintiff when he formed the purpose of giving his promissory notes for the goods. It is hardly necessary to say that the jury should not consider such a circumstance as conclusive of itself against the plaintiff. It would he hut one fact, to which a proper and not an undue weight should be given.

The request, as I understand it, did not assert that in case of a fraudulent sale and purchase, the notes would not give a right of action against the plaintiff* to any holder whatever, hut that they could not he recovered on hy the holder, that is, the wife of Mr. Besson, who was the holder.

It does not seem to me to he a defect in the request that it was made without also stating the mode in which the jury should use its propositions in finding the relation of the plaintiff to the purchase, whether it was bond fide or the reverse. If the request was right in its meaning, the jury had only to make such use of it as would he made of any other charge of a judge.

.Hor does it seem to me to he a defect in it that it referred to the rights of a person receiving the note after the sale was consummated, and whose rights could not affect the plaintiff’s good faith at the time of the sale, unless it was shown that he had notice that the notes were about to go into the hands of Mrs. Besson. We have said that the possibility that the notes might go ■ into the hands of a holder like Mrs. Besson might properly be weighed by a jury. When that possibility has become a reality, a jury is not misled by a court using the fact for the purpose of stating the legal rule which is to be considered by them. We can believe that a jury might, in case - it chose to violate its duty, make an improper use of the fact that the plaintiff would not be obliged to pay the notes, but that would not result from anything in the request.

We think the request was correct. Mr. Besson gave the notes to his wife “on account of what he owed ” her. It does not appear that any part of that indebtedness was satisfied or discharged, and under Bank of St. Albans v. Gilliland (23 Wend. 311), this would not make her a holder for value, even if the rule stated in late cases was not applied, viz., that a person taking notes as security for or in payment of an antecedent debt where no security is surrendered, or new credit given, is not a bona fide holder for value (Taft v. Chapman, 50 N. Y. R. 448 ; Weaver v. Barden, 49 N. Y. R. 286; Lawrence v. Clark, 36 N. Y. R. 128).

If, as the request stated, the sale by Besson and the purchase by the plaintiff were fraudulent and illegal, notes given for and in consideration of such sale and purchase did not give Besson a right of action against the plaintiff (Nevir v. Best, 10 Barb. 369 ; Nellis v. Clark, 20 Wend. 24, and 4 Hill, 424 ; Johnson v. Morely, Hill & D. 29 ; Moseley v. Moseley, 15 N. Y. 334; Merrick v. Butler, 2 Lans, 103).

The surrendering by plaintiff to Besson of the latter’s note for $1,200 was, I think, a valuable consideration, to that extent at least. The cases cited above to the proposition ■ that a note received as security for or in payment of an antecedent debt is not given for a valúaTble consideration, were not intended to reverse Brown v. Leavitt (31 N. Y. 113); Pratt v. Coman (37 N. Y. R. 440); The Park Bank v. Watson (42 N. Y. R. 493);

Paddon v. Taylor (44 N. Y. R. 374), and other cases which hold that delivery to a debtor of his note past due, and its cancellation, is a valuable consideration, and it is said in the last case that whether the note surrendered is past due or not due is of no importance. In such case, there is a security delivered. Although such was the effect of delivering up the $1,200 note, still the nature of the rest of the consideration given was to be considered by the jury. I therefore think that the request to charge should have been granted.

The court was right in refusing to charge in substance, if Besson made the transfer for the plaintiff’s notes with a view of placing his property out of reach of legal process and to compel the plaintiff to take the notes, that the transfer was void. This is based upon the proposition, that if Besson meant to defraud his creditors, the plaintiff was not liable upon his notes, and therefore, not being a purchaser for a valuable consideration, was not protected by the statute.

In case of a sale fraudulent against creditors, the statute enacts that no part of its provisions shall affect the title of a purchaser for a valuable consideration, unless he had previous notice of the fraudulent intent of the vendor. There is no necessity of construing this to mean that the jury must in the first instance determine if a valuable consideration had been paid, before they determined if the purchaser had previous notice of the vendor’s fraudulent intent. It would be sometimes, as in the present case, proper first to inquire if there were any previous notice of the fraudulent intent. From the necessities of the case, the jury might not have, in passing upon that, the benefit of knowing the real character of the consideration paid, i. e., an important fact would primarily be left for a time in doubt. If it, should be found to be the fact that the purchaser had no notice of the fraud, affirmed his title to the goods to be perfect, and maintained his own liability on the notes not only to bond fide holders, but to the payees, it seems to me that there would be no evidence on which the jury could say that the purchaser was not liable on his notes to the payees, and that such notes did not form a valuable consideration. «

The first request to charge was refused, and exception taken. It was “the sale of an entire stock of goods, ' which is liable to execution, of a debtor who is embarrassed or who anticipates that he cannot meet the payment of his debts when and as they become due for the ¿dies of a person of limited responsibility as compared with the amount of the property transferred, having a long period to run, with the intention of turning over the notes, is void, irrespective of the question of fraudulent intent.” The request referred to matters of fact for the jury, and did not involve only questions of law- (Loeschigk v. Bridge, 42 N. Y. R. 421).

The charge of the learned court was not excepted to but in one particular. The court said that when a sale and purchase were made with intent to defraud creditors, the whole transaction was void, “ that is, provided that intention existed upon the part of the purchaser as well as of the vendor.” This proviso was excepted to. Taking this literally, there is no doubt that it is correct as far as it goes, but beyond this, if we look at the whole charge, it appears that the jury was properly instructed that the statute protects only purchasers for a valuable consideration who had no previous notice of the fraudulent intent.

As the request first discussed here should have been granted, the judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Mokell and Curtis, JJ., concurred.


text:
    JOHN M. HARRIS, Plaintiff and Respondent, v. THE PANAMA RAILROAD COMPANY, Defendant and Appellant.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.
    I. Market Value.
    1. When there is none at a particular place.

      a. Where an. article has never been bought or sold at a particular place, and has never been used there, it has no market value there.

      2. Actual value of the article at such place, what may he considered in determining.

      a. Its market value at the next nearest place where it has a market value may be considered for the purpose of fixing its value at said, place, taking into consideration the hazard and risks of transportation and all other facts affecting the question.
    II. Experts’ Opinions as to the Breed, Stock, and Pedigree op Horses.
    1. One who has been several years in the business of raising and selling horses, who had on hand over two hundred horses and as many colts in addition, and who had dealt in American horses at a particular place, is a competent witness to testify to the breed of an American horse.

      2. So also the groom of a horse, who has had experience while in the
    services of men engaged in buying and selling horses, and while living with professional farmers, is competent to testify as to the breed of the horse. 'A
    3. All persons who have acquired a knowledge of the breeds of horses from raising and dealing in horses are competent to testify on the subject.
    III. Sickness op a Horse.—Testimony op a Person not an expert in Diseases op Horses.
    1. Where the mate of a vessel in which a horse was being transported (he not being an. expert in the diseases of horses) has testified on his direct examination that the horse was sick on the voyage, it is competent and proper to ask him on cross-examination if he saw any alteration in the horse from the time he was out three or four days up to the time he landed in the port of destination.
    The question does not ask for an opinion on a subject requiring skill.
    Appeal by the defendants from a judgment against them for $5,213.24 damages and costs, on the verdict of a jury, and from an order refusing a new trial.
    This action to recover the value of a horse was first tried in May, 1857. The defendants appealed from the judgment on the verdict of $2,500. The judgment was t reversed and a new trial ordered (reported 3 Bos. 7). At the second trial, in November, 1858, there was a verdict of $5,000 for the plaintiff. On appeal a new trial was again ordered, the verdict being deemed larger than was warranted by the evidence (reported 5 Bos. 312). At the third trial, in January, 1873, there was a verdict for plaintiff of $3,942.
    Eaton, Tailer, & Cadwallader, attorneys, and D. B. Eaton, of counsel for appellants, cited:
    As to experts : Clark v. Baird, 5 Seld. 183 ; Merritt v. Seaman, 2 Seld. 168; Dewitt v. Bailey, 5 Seld. 371; The People v. Lake, 2 Ker. 358.
    As to market value: Gregory v. McDowell, 8 Wend. 435 ; Daud v. Fielder, 2 Ker. 40 ; Wilkinson v. Langton, 8 Johns. 164; Cary v. Gruman, 4 Hill, 625; Griffin v. Colver, 16 N. Y. 491; Clark v. Penny, 7 Cowen, 681.; Conger v. H. R. R. Co., 6 Duer, 375 ; Wieburt v. N. Y., etc., Road, 19 Barb. 36 ; Wieburt v. N. Y., etc., Road, 2 Ker. 245; Harris v. Panama R. R. Co. (this case) in 3 Bowen, 7, and 5 Bosw. 312, on the former appeal.

      Stilwell & Swain, attorneys, and B. M. Stilwell, of counsel for respondent, cited:
    Clark v. Baird, 9 N. Y. 196 ; Walsh v. Kelly, 40 N. Y. 558.
   By the Court.—Curtis, J.

The plaintiff sues as assignee of John Johnson to recover damages for injuries to a horse of the latter, claimed to have occurred from a collision on defendant’s road when crossing the Isthmus of Panama.

The defendants put in issue the value of the horse,. and alleged that the horse died of the glanders, and was sick at the time of the collision, and that .his death was not occasioned 'by any injury received while the horse was on the road. There was evidence that the plaintiff’s assignee paid the fare of this horse from líew York to San Francisco, except the railroad charge, which he paid at Aspinwall; that the collision occurred by reason of the intoxication of one of the defendant’s engineers ; that the horse was thrown down and injured while in the car; and various estimates were given of its value at San Francisco, one as high as $5,000.

There was testimony as to the value of horses on the Isthmus, and as to what kind of horses were' raised or sold there.

There was conflicting testimony as to the condition and symptoms of the horse, both before and after the collision, and as to what caused his death.

There were twenty-live requests by the defendant’s counsel to charge. They were substantially charged by the court as requested, except such as were properly submitted to the jury as questions of fact.

The defendant’s counsel excepted to such portions of the charge as stated in substance that if there was no horse like this bought and sold upon the isthmus, and if there were no such horses there, that then there could not have been a market value there, in the -sense in which market value is applied to property. The language of the court was, after stating in substance that if no horse like this was bought or sold upon the isthmus, and if no such horses were there, “then the horse would not ‘ ‘ have a market value there in the sense that we apply “the words ‘market value’ to articles of property “which are subjects of traffic and from time to time “ actually bought and sold in a particular place.” This seems to be a just observation by the court, especially in view of the testimony that this horse was a thoroughbred stallion.

The defendant’s counsel excepted to the portion of the charge instructing the jury if they should find that there were no horses like this on the isthmus—none like him in appearance, form, and quality—and that no such horses had been bought and sold there, then in determining his fair actual value at that place, they might take into consideration evidence of his actual value at San Francisco, if the evidence satisfied them that he had a certain market value there, in determining’ his actual market value at Panama; that is to say, for the purpose of fixing, but not enhancing, such market value at Panama, taking into consideration the hazards and risks of transportation, and the expenses of transporting from Panama to San Francisco, and in view of these and all other facts affecting the question they might determine his fair market value at Panama at the time he was injured and in the condition he then was.

This is the reasonable way of arriving at- the solution of the question of value, and accords with the views expressed by the General' Term in this case reported in 3 Bos. 7.

The court declined the request of' the defendant’s counsel, made after the charge, to instruct the jury that it was not proved that such a horse had been or could be bought or sold in San Francisco, or had a market value there.

The defendant’s counsel excepted, but in view of the testimony on this subject the court necessarily left it as a question of fact to be passed upon by the jury. The two other requests on the defendant’s part after the charge, were to have matters charged that had been already in substance charged, and the exceptions in that respect were not well taken.

It is claimed by the defendants that the verdict for damages is excessive, and not sustained by the evidence. There was considerable testimony in reference to the value of the horse. Various estimates were made by witnesses from zero to five thousand dollars. The whole subject was fairly and justly placed before the jury. The complaint was amended on the trial so as to -• allow plaintiff to claim interest. It was within the province of the jury to assess the damages, and there appears to be no good reason, after looking over the testimony, to disturb the verdict as excessive and unwarranted by the testimony. More than eighteen years have elapsed since the alleged injury to the horse, and the jury may have considered the matter of interest on the original damages.

There were several exceptions taken by the defendant’s counsel to rulings of the court as to the admission of evidence. One of these exceptions was to allowing Johnson to testify of what breed or stock the horse was. He testified he was of the “ Sir Archies breed.” It appears by his testimony he had been for several years in the business of raising and selling horses; that he had on hand over two hundred horses, with almost as many colts in addition, and that he had dealt in American horses at San Francisco. His testimony discloses knowledge of the subject, and the court properly allowed him to answer the question. The defendants were not prejudiced by it, for the court, considering it merely as the expression of an opinion, instructed the jury that the horse’s pedigree, blood, history, etc., were not established by positive evidence.

A similar exception was taken to the admission of the testimony of the stallion’s groom as to the breed or stock of the horse, but it appears from his testimony he has had experience while in the service of men engaged in buying and selling horses, and while living with professional farmers. Persons who have acquired knowledge of the breeds of horses, from raising and dealing in horses, are competent to testify on the subject.

The first mate of the steamer was asked by the defendant’s counsel if the horse was dangerously ill on the voyage. He had testified he was sick, but it did not appear that he had any knowledge or experience of the diseases of horses to enable him to testify as an expert in respect to the character of the illness. ■ The witness answered that he thought he was. The court properly struck out his answer, and the defendants excepted. This witness was asked if he saw any alteration in the horse from the time he was out three or four days up to the time he landed in Aspinwall. He answered he thought “he was improving.” The defendant’s counsel excepted, claiming that the witness was not shown to be an expert, but he had testified on his direct examination that the horse was sick on the voyage, and on the cross-examination it was proper to ask him what alteration he saw in his condition. He was not asked for an opinion upon a subject requiring skill which he was not shown to possess, but as to what would be ordinarily apparent to the officer of any vessel whose duties placed him in charge of the deck, and who had any experience or responsibility in the transportation of this description of freight.

There were other exceptions to- the rulings of the court in respect to the introduction of testimony, in which the court ruled upon the questions of value in accordance with the views of the General Term at the first hearing of this cause on appeal. In examining the exceptions in respect to the admission of testimony, there do not appear to be any that furnish reasons for reversing the judgment and granting a new trial.

The judgment and order appealed from are affirmed, with costs.