author: Van Brunt, P. J.:

text:
    Caroline L. Brown and Others, Plaintiffs, v. Charles J. Richter, as Executor, etc., of James W. Lawrence, Deceased, and Another, Defendants.

      Legal and illegal trusts created by a will — when the legal may be separated from the illegal.

    Where several trusts are created by will which are independent of each other and each complete in itself, some of which are legal and others illegal, and the legal can be separated from the illegal and be upheld without doing injustice or defeating what the testator might in the emergency be presumed to wish, the illegal trust may be cut off and the legal permitted to stand,
    A will created a trust of personal property and gave the income thereof to the testator’s widow during her life, and upon her death his executors were directed to divide the estate into shares equal to the number of children surviving the decedent, the issue, if living, of a deceased child to count one in such division.
    The executors were directed to pay the income of one such portion to the testator’s daughter Caroline during her life, and upon her death the principal thereof was directed to be disposed of as a part of such other portions. The income of the second portion was directed to he paid to the testator’s daughter Sarah during her life, and upon her death it was directed that the principal thereof be paid to her issue, if any, and if none, that the same should be disposed of as part of such other portions. The income of the third portion was directed to be paid to the testator’s son during his life, and upon his death the principal thereof was directed to be paid to his issue, if any, and if none, then the same was directed to he disposed of as a part of such other portions.
    The testator left him surviving as his only heirs at law and next of kin, his widow, two daughters, Caroline and Sarah, and one son.

      Held, that the bequests of the remainders over after the termination of the lives of the testator’s children was a violation of the statute, in that the absolute ownership of the estate was suspended for more than two lives in being at the death of the testator;
    That the testator created a good and valid trust as to each of the three portions during the life of each-of his three children.
    Motion by the defendant, diaries J. Ricliter, as executor, etc., of James W. Lawrence, for a new trial under section 1001 of the Code of Civil Procedure, on a case containing exceptions, after judgment entered upon the decision of the court in favor of the plaintiffs, after a trial at the New York Special Term on the 11th day of October, 1893.

      L. A. Lockwood, for the motion.

      G. L. Tilma, guardian ad litem, for the infant defendant.

      J. A. Dennison, for plaintiffs opposed.
   Van Brunt, P. J.:

This action was brought by the children of James W. Lawrence, -deceased, against the executor of the will of James W. Lawrence and Helen Gr. Lawrence, the infant daughter of the plaintiff James B. Lawrence, for a judgment declaring that the will of said James W. Lawrence is void as unlawfully suspending the absolute ownership of personal property and for' an accounting by the executor and distribution of the property amongst the plaintiffs. Judgment having been rendered in favor of the plaintiffs and an interlocutory judgment entered, this motion for a new trial is made under section 1001 of the Code.

The testator died on the 21st of April, 1891, leaving him surviving his widow, two daughters, Caroline married and Sarah unmarried, his son James B., the plaintiff, and his granddaughter Helen, the daughter of his said son. On the 2d of July, 1883, the defendant executed a will which was duly admitted to probate, and letters testamentary issued to the defendant Richter on the 30th of April, 1891. There was also a codicil to said will, bearing date the 3d of August, 1885, which was also probated, but which does'not affect the question involved in this action. The testator’s widow died on the 29th óf August, 1891, the whole estate being personal property.

That portion of the will which is involved in this action reads as follows:

“Third. All the remainder of my estate, real and personal, I give to my executors in trust.

I. That they sell and dispose of the same at private sale or at public auction, at such time or times and upon such terms as they deem advisable, and invest the proceeds thereof and keep the same invested.

II. That they pay the income thereof to my wife during her natural life, with leave to my executors to pay to her, from time to time, any part or the whole of the said principal, if, in their judgment, the same shall be necessary for her comfortable maintenance and support.

“ III. That, upon the decease of my wife, they divide so much of my estate as may then remain into equal portions to the number of children me surviving, the issue, if living, of a deceased child to count one in such division.

“IV. That they pay the income of one such portions to my daughter Caroline Roof during her natural life, and, upon her separate receipt and upon her decease, the principal thereof shall be added to and disposed of as a part of the said other portions.

“'V. That they pay the income of one such portions to my daughter Sarah Catherine during her natural life, and, upon her decease, that they pay the principal thereof to her issue, if any; if none, then the same shall be added to and disposed of as a part of the said other portions.

“ VI. That they pay the income of one of such portions to my son, James Brewster, during his natural life, and, upon his decease, that they pay the principal thereof to his issue, if any ; if none, then the same shall be added to and disposed of as a part of the said other portions. With leave, however, to my executor to pay from time to time, or at any time, to my said son, the whole or any part of the said portion, if in tlieir judgment they deem such payments to be for the best interest of my son.”

It will be seen by an examination of" this will that the testator first gives the income of his whole estate to his widow during life, and ripon her death his executors are directed to divide his estate into portions equal to the number of children he might leave him surviving, the issue, if living, of a deceased child to count one in such division. The executors were directed to pay the income of one of such portions to each of his daughters, and the remaining portion of income to his son, the plaintiff, James B. Lawrence. After the bequest to his daughter Caroline, he provides that, upon her decease, the principal thereof shall be added to and disposed of as part of the said other portions, and after the bequest to his daughter Sarah, he provides that, upon her decease, the principal shall go to her issue, if any, and if none, that the same si rail be added to and disposed of as a part of the said other portions. The testator made the same provision in respect to his son, the executors having leave, however, to pay from time to time, or at any time, to his son, the whole or any part of his portion, if in their judgment they should deem such payment to be for the best interest of his son.

There is no question but that the bequest of the remainders over after the termination of the lives of the children was a violation of the statute in that the absolute ownership of the estate was suspended for more than two lives in being at the death of the testator, and it is for this reason that it is contended upon the part of the plaintiffs, that the whole bequest is void, and that the estate must be divided as in case of intestacy. This is undoubtedly true if the bequests are so interwoven that they cannot be separated, and- the testator cannot be said to have a separate and distinct intention in regard to each. It has become a familiar principle in our law since the decision of the case of Schettler v. Smith (41 N. Y. 328), that where several trusts are created which are independent of each other, and each complete in itself, some of which are legal and others illegal, and the legal can bo separated from the- illegal, and upheld without doing injustice, or defeating what the testator might in the emergency be presumed to wish, the illegal trust may be cut off and the legal permitted to stand. This rule was lately enunciated in the case of Kennedy v. Hoy (105 N. Y. 134), and our attention has been called to no case which in any way conflicts with the rule thus laid down.

In support of the plaintiff’s contention this last case is cited as an authority, as also the cases of Tilden v. Green (130 N. Y. 29) and Cross v. U. S. Trust Co. (131 id. 330).

An examination of the case of Kennedy v. Hoy seems to show that it is peculiarly an authority in favor of the proposition that as far as the provision for the first two life estates is concerned, the will was valid; and that only the remainders over were affected by the unlawful attempt to dispose of the same upon the part of the testator.

In the case last cited the will of the testatrix directed a share of her estate to be placed in the hands of her executors as trustees, the income thereof to be applied to the support and maintenance of her son and his family during his life, and after his death the income to be paid to his surviving children until they reached the age of twenty-one, when the principal was to be divided among them share and share alike. In the case of the deatli of-the son without issue, or of all his children dying subsequently to his decease before reaching the age of twenty-one, then the will directed the share to be divided among lier other children. The son survived the testatrix, having a wife and two children, and during the lifetime of the son a judgment creditor tiled a bill to reach the trust fund, he claiming the trust to be void for unlawful suspension of the absolute ownership, and that the title to the trust property vested in the son as the heir of his mother. The judgment of the court was that the claim was untenable; that at least the trust for the life of the son was valid; and as this was a separate trust complete in itself, it could stand, although the trust to take effect after his death should be held invalid.

Applying the rule laid down in this ease to the facts appearing in the record before us, it Avould appear that the testator created a good and valid trust as to each of the three portions during the life of each of his three children, the disposition of such portion after the death of each child being the only violation of the statute; and, therefore (precisely as was done in the case of Kennedy v. Hoy), the court must hold that the intermediate estates were good during the lives of the respective children, the bequests over only being void. In a case like the one at bar the question is not whether the testator intended to exclude this or that person from participating in his estate, but whether there is a clear and well-defined intention that the parties for whom legal provision is made shall have the same independent of the subsequent provision which contravenes the statute. In such a case the legal may be separated from the illegal, and the testator’s intention carried into effect so far as the law permits; and it is only when the alternative disposition -which contravenes the statute is called into effect that the will becomes inoperative.

The distinction between the case at bar and the case of Tilden v. Green, above cited, is manifest. In the case at bar the testator intended his children to enjoy the portions assigned to them during their lives, independently of any other consideration. And this he had a lawful right to do. After they were dead, however, he attempted to make a disposition of the portion of each child in a manner which contravened the statute; and it is only this disposition which the court can declare to be void.

In the case of Tilden v. Green a different question arose. The difficulty with the will in that case was that the clause of the will which was claimed to be good was so dependent upon the succeeding clause, which was conceded by all parties to be bad, that it could not be said that the testator intended that the clause claimed to be valid should go into effect irrespective of the one succeeding which was admittedly bad.

The case of Cross v. U. S. Trust Co., also cited by the plaintiffs in support of their proposition, does not seem to have much application to the case at bar, because that was a will executed by a resident of Rhode Island.

It seems to us that without doing any injustice, or defeating what the testator in the emergency might be presumed to wish, the life estates of the three portions to his children may be sustained, and the remainders over declared illegal. Thus the illegal trusts are cut off and the legal permitted to stand.

We think, therefore, that the learned judge erred in declaring the trust absolutely void, and that the remainders over after the termination of the life estate are all that are in contravention of the statute.

The judgment should be reversed and judgment ordered in accordance with this opinion, with costs to all parties appearing, to be paid out of estate.

Eoulett, J., concurred.

Judgment reversed and judgment ordered in accordance with opinion, with costs to all parties appearing, to be paid out of estate.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    Third National Bank of the City of New York, Respondent, v. The Merchants’ National Bank, Appellant.

      Indorser of commercial paper — warranty, thereof — forgery — equitable estoppel — money paid by mistake — when it can be recovered — negligence—notice of the discovery of a forgery — failure to discover the same.

    An indorser of commercial paper impliedly warrants the genuineness of the instrument and of every preceding indorsement, and the fact that a forgery of an indorsement thereon was committed by a person having the same name as the genuine payee makes no difference. It is the signature of the payee that transfers the title to the check, and the mere fact that another person may have the same name gives him no power to make the transfer, and the signature of such person is just as much a forgery as if the names had been different.
    Although a bank would otherwise be entitled to recover where it has paid to another bank a check having thereon the forged signature of the payee, which by the latter was presented to it through its correspondent, no recovery of the amount so paid can be had, if the conduct and acts of the bank were such as to create against it an equitable estoppel.
    Money paid by mistake can be recovered providing the party seeking to recover has not by his careless or negligent acts injured or prejudiced the person from whom the recovery is sought.
    Where a bank makes a payment on a check to a person who is not the payee, it alone is responsible for the loss, and it cannot get rid of such liability by showing that after the loss had occurred there was negligence on the part of another in discovering the forgery, or after it had been discovered, in giving notice to such bank thereof, unless, in the latter contingency it is coupled with proof that the bank was damaged by the failure to give it notice within a reasonable time after discovery.
    One who fraudulently passes a bill cannot avoid his liability to refund on the pretext of delay in detecting the forgery or in giving notice of it, and if reasonable diligence is exercised in giving notice after the forgery comes to light, it is all that any of the parties can require.
    A failure to discover a forgery, although resulting in loss to another, gives no right of action, as there is no duty imposed on one who receives a forged check from another to unearth the crime; but after the discovery of the forgery the duty is incumbent on the person detecting the imposition to act promptly in giving notice thereof, and if he fails so to do, to the injury of one entitled to notice, he will be prevented from recovering the damage or injury shown to have been actually incurred.
    Appeal by the defendant, The Merchants’ National Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of October, 1893, upon tlie verdict of a jury for $4,468, by-direction of tlie court, after a trial at the New York County Circuit.
    The action was brought for the recovery of $4,000 alleged to have been paid to the. defendant by mistake, under the following circumstances developed upon the trial:
    On the 30th of October, 1891, a correspondent of the plaintiff, being the Bank of New Hanover, of Wilmington, North Carolina, issued a check directed to the defendant in the following form, namely:
    “ $4,000. State oe North Carolina.
    “ Bank oe New Hanover, Wilmington,
    “ October 30, '91.
    “ Pay to the order of Benj. Drew four thousand dollars.
    “ W. L. SMITH, Cash.

    “ To Third National Bank, New York.
    “ N. 2922.”
    In red ink on the face of said check appear the following words: “Not paid to December 1, ’91. Reed. Duplicate.”
    Indorsed: “ Benj. Drew. Pay to the order of National Bank of Savannah, Ga. Savannah Naval Stores Company. W. C. Powell, Pres. Pay American Exchange National Bank, New York, for collection for the National Bank of Savannah, Ga. Thomas E. Thomson, Cashier.”
    Stamped: “ Am. Ex. Nat. Bank, Paid December 17, 1891. Indorsement guaranteed, New York.”
    This check was intended for Benjamin Drew, who resided in Swan, Georgia, but at his request it. was sent by those who obtained it from the Bank of New Hanover in a letter addressed to him at the city of Savannah, Georgia. The check was received by a colored man of that name who resided in the city of Savannah, who, on November 7, 1891, accompanied by an official in the custom house in Savannah, delivered the check to defendant for collection. The defendant mailed the same to its corresjiondent in New York, the National Bank of the Republic, and, ten days afterwards, receiving notification that the check had been paid by plaintiff, the defendant paid the money to the colored man.
    Before the check had been delivered to the defendant for colleetion, and on or about the second or third of November, Benjamin Drew, of Swan, Georgia, a white man, who was on a visit to the city of Savannah, having been informed by a telegram that the cheek had been sent to him by mail, inquired at the post office, and thereafter visited the banks of Savannah, to ascertain if the check had been presented. Upon a visit to the defendant bank he was accompanied by a Mr. Powell, and on that occasion they saw either the cashier or teller, and told him about the mailing of the check and asked if it had been presented, and was informed that it had not. They thereupon stated to defendant that such check was mislaid or lost, and notified defendant that if it was presented by any other person than the Mr. Drew who was then present not to pay it. The cashier, who was the only witness for the defendant, did not in any way attempt to contradict this testimony.
    On November fourteenth the check was paid by plaintiff. On November seventeenth the defendant paid the proceeds to the indorsee. On the eighteenth plaintiff received notice that Ben jamin Drew, of Swan, Ga., had not received the check, and was asked to watch indorsement. On December third plaintiff received notice-that a duplicate check had been issued, and was warned not to pay original. December eighteenth plaintiff paid duplicate check ; and on January 17, 1892, plaintiff was informed by the drawer that it, the plaintiff, had paid both the original and duplicate check.
    February 8, 1892, was the date of first notice by plaintiff to-defendant of its claim.

      George S. Hastings, for the appellant.

      Thomas G. Shea/rmcm, for the respondent.
   O’Brien, J.:

Aside from the question raised by the affirmative defense as to plaintiff’s duty of exercising diligence in giving defendant information that the payment wras irregular or unauthorized, upon the undisputed facts and the settled principles of law the plaintiff was entitled to a verdict.

As correctly argued by respondent:

The plaintiff was bound to pay any check drawn upon it by the-Bank of New Hanover. It is not disputed that it did pay the check to the defendant, that the signature of the payee was_a forgery, and. that the defendant indorsed the check. The plaintiff was, therefore, entitled to recover the amount from the defendant, on the familiar principle that an indorser of commercial paper impliedly warrants the genuineness of the instrument, and of every preceding indorsement. (Canal Bank v. Bank of Albany, 1 Hill, 287; Turnbull v. Bowyer, 40 N. Y. 456; White v. Continental Nat. Bank, 64 id. 316, 320; Corn Exchange Bank v. Nassau Bank, 91 id. 74.)

That the forgery was committed by, a person having the same name as the genuine payee makes no difference. It is the signature of the genuine person that transfers the title; the mere fact that another person may have the same name gives him no power to make the transfer, and the signature of such person is just as much a forgery as if the names had been different. (Graves v. American Exchange Bank, 17 N. Y. 205; Faris v. Peck, 10 Abb. [N. S.] 55 ; Penal Code, § 522.)

Appellant insists, however, that this rule of law is varied by the fact which it is claimed here ajipears, that the plaintiff was wanting-in the duty which it owed to the defendant of exercising diligence in giving notice after knowledge of the diversion of the check, and also in discovering it. And a quotation to support the proposition thus advanced is taken from an opinion of the presiding- justice of this court wherein he says: “ The parties were bound to proceed diligently after discovering the fraud, but no laches can be imputed prior to its discovery.” (Central Nat. Bank v. North River Bank, 44 Hun, 116.)

"We have no fault to find with this statement of the law, nor with an equally well-settled principle invoked by the appellant, to be found in the opinion of Rapallo, J., in Nat. Bank of Commerce v. Nat. Banking Assn. of N. Y. (55 N Y. 216), wherein he says: If the defendant had shown that it has suffered loss in consequence of the mistake committed by the plaintiff, as, for instance, if in consequence of the recognition by the plaintiff of the check in question, * * * then clearly to the extent of the loss thus sustained the plaintiff should be responsible.”

These cases are authority for the position that, though the plaintiff would otherwise be entitled to recover where it has paid a check to the defendant, which by the latter was presented to it through. its correspondent, having thereon the signature of the payee forged, nevertheless no recovery could be had if the conduct and acts of the plaintiff were such as to amount to an equitable estoppel. Such estoppel, it is claimed, exists in this case by reason of the plaintiff’s negligence. But we think that in this the appellant overlooks the essential element of an equitable estoppel, in failing to produce the evidence from which (assuming that in some aspects negligence might be imputed to the plaintiff) the inference might be reasonably and fairly deduced that it has, by reason of such negligence, been injured.

It will be noticed in examining the cases relied upon by appellant that they all hold that money paid by mistake can be recovered, provided the one seeking to recover has not by his careless or negligent acts injured or prejudiced the person from whom the recovery is sought.

There is no claim that there was any negligence on the part of plaintiff in paying the check when presented, or that it was wanting in any duty that it owed to the defendant up to the time when the latter paid the money to the wrong person. The insistence, however, is, that having received notice on November eighteenth, which war four days after the check, had been paid by plaintiff, and one day after the defendant had paid to the indorsee, this was negligence which should prevent a recovery by plaintiff. The difficulty with this position, however, is, that when the defendant paid the money over to the wrong person the harm was done, and the only evidence of any injury caused by the alleged delay of plaintiff was given by the defendant’s cashier, who said that if more seasonable notice had been given the forger “ would have been arrested earlier and more favorable results might have ailsen.” Estoppels, however, are never based upon conjectures, the law requiring that facts must be presented showing substantial damages sustained by the delay. As said in White v. Continental Bank (64 N. Y. 316): “ In the case at bar it is the merest conjecture, with scarcely a possibility to support it, that the defendant, or those from whom it received the bill, could, at any time after the transmission of the foreign bill of exchange to Baltimore, have taken any effectual measures, either for arresting the swindler or reclaiming the bill bought and paid for upon the credit of the bill. Estoppels cannot be based upon mere conjectures, even if a proper foundation is laid for them in other respects.”

• Although as early as December third the Bank of New Hanover had notified the plaintiff that the check had not been received by the payee, and although plaintiff had then paid the check, that the plaintiff did not know of the forgery is evidenced by the fact appearing that as late as December 18, 1891, it paid the duplicate check. It is certain, therefore, that it had no actual knowledge until the latter day, and the most that could be claimed from the notice that it received is that it was negligent in not having discovered the forgery sooner.

But this claim of negligence is offset by the facts aj>pearing, that' the plaintiff was paying three or four thousand checks a day, which, between November thirteenth and December third or December eighteenth would make many thousand checks which it had paid, and in the business connected with this mass of checks the plaintiff could not well be held to have been guilty of negligence in not having discovered the payment of the forged check at the time the second check was presented.

As the defendant, however, chose to make the payment to a person who was not the payee, it alone is responsible for the loss, and it cannot get rid of such liability by showing that after the loss had occurred there was negligence on the part of the plaintiff in discovering the forgery, or, after it had discovered it, in giving notice to the defendant, unless, in the latter contingency, it was coupled with proof that the defendant was damaged by the failure to give notice within a reasonable time after discovery. For this proposition we refer to the two cases of Nat. Bank of Commerce v. Mechanics’ Bank (55 N. Y. 211) and Corn Exchange Bank v. Nassau Bank (91 id. 74).

But apart from this the fact that we have already averted to, that it does not apjiear that by such delay the defendant was damaged, is a complete answer to the defense thus sought to be interposed. As correctly said in Bank of Commerce v. Union Bank (3 N. Y. 236), “ The greater negligence in a case of this kind is chargeable on the party who received the bill from the perpetrator of the forgery. So far as respects the genuineness of the bill, each indorsee receives it on the credit of the previous indorsers, and it was the interest and the duty in the present case of the Bank of Charleston (for which in the case at bar substitute the defendant) to satisfy itself that the bill was genuine or that its immediate indorser was able to respond in case the bill should prove to be spurious.” This is followed by what we regard as a very clear expression of the law : “ The party who fraudulently passed the bill cannot avoid his liability to refund on the pretence of delay in detecting the forgery or in giving notice of it, and if reasonable diligence is exercised in giving notice after the forgery comes to light it is all that any of the parties can require.”

But a claim of negligence based upon a failure to discover is very different from one based upon a failure, after discovery, to give notice. A failure to discover, though resulting in loss to another who might, if sooner apprised, have apprehended the forger and recovered the money, gives no right of action, and for obvious reasons, one of which alone need be mentioned. There is no duty imposed on one who receives a forged check from another to unearth the crime. lie receives it presuming, as he has a right to do, that all the signatures and indorsements are genuine, which is impliedly warranted by the person from whom it is received. This presumption and the right to rely on this implied warranty is only destroyed when, by inspection, the forgery could be detected because apparent on the face of the check or bill, or where, from the surrounding circumstances, the suspicions of the person receiving the note, check or bill should be aroused and his scrutiny challenged.

Not so after discovery, for then the duty is incumbent on the one detecting the imposition to act promptly in giving notice, and if he fails therein to the injury and damage of the one entitled to notice, he will be prevented from recovering the damage or injury shown to have been actually incurred.

Upon the facts here negligence is not imputed to plaintiff for failure to sooner discover the forgery, and as it was not shown that any injury or damage resulted from the delay in giving notice after discovery, plaintiff was not precluded from recovering the -whole amount paid to defendant by mistake.

Upon an examination, therefore, of the entire record we think there was no disputed question of fact, nor any fact from which ■different inferences could reasonably be deduced, which would in •any way affect the liability incurred by the defendant in paying to the wrong person, upon a forged indorsement, moneys which by mistake it had received from the plaintiff, and which the latter was entitled to recover from it.

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

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

Judgment affirmed, with costs.


author: Parker, J.:

text:
    Jacob Kimmer, as Administrator, etc., of Wm. Kimmer, Deceased, Appellant, v. John Weber and Another, Respondents.

      Master and servant — when the act of a third person is the act of the master — • evidence as to the safety of place of employment.

    "Wiiere tlie master intrusts the performance of a duty which he owes to his servant to -some one else, he who performs the master’s duty stands in the master’s place, and his act is the act of the master.
    ’The evidence considered and commented upon which fairly presents to the jury the question whether an employer had performed the duty which he owed to his employees to furnish a safe and proper place in which they could prosecute their work.
    Appeal by the plaintiff, Jacob Kimmer, as administrator, etc., of William Kimmer, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 18th day of February, 1893, dismissing the plaintiff’s complaint after a trial at the New York Circuit.
    Osom’ E. Langer and Theo. Aub, for the appellant.

      Hamilton Wallis, for the respondents.
   Parker, J.:

We think the evidence produced by the plaintiff fairly presented for the jury the question whether the defendants had performed the duty which they, as masters, owed to the plaintiff’s intestate, to furnish a safe and proper lace in which the employee should prosecute this work.

On the 16th day of February, 1891, plaintiff’s intestate, ¥m. Kimmer, was an employee of the defendants. The work in which he was, engaged was that of pointing up arches with mortar in Koehler’s brewery in this city. The doing of the work necessitated that he should stand upon scaffolding which was about twelve feet six inches above the floor, and within seven feet six inches of the ceiling.

"While standing upon this scaffold and engaged in the discharge of his duties, he was precipitated to the floor by the falling of the scaffolding and killed.

The evidence tends to show that the breaking of the scaffold was due to the fact that it was not properly constructed.

Indeed, it appears that it was not originally put up for the purpose of sustaining the weight required of it in doing the mason work in which defendants’ employee was at the time of its breaking engaged. This scaffolding had been constructed for the use of plumbers, and when the defendants commenced to do the mason work they did not strengthen it. Now, the defendants were bound to use all reasonable precaution necessary to make this scaffolding upon which their employees were invited to stand and work, safe.

The defendants personally do not appear to have paid any special attention to the construction of the scaffolding. That matter they committed to their foreman, Joseph Turner. But as it was a duty which the defendants, as masters, owed to their employees, to exercise due diligence to make the scaffolding safe, Turner, in the performance of that duty, stood in the place of the masters.

Defendant Weber testified that it was Turner’s duty to see that the scaffolding was properly put up. Turner testified that he gave directions with reference to it to certain employees other than the masons working upon it. He denies that the scaffolding used was arranged in accordance with the directions given by him, at the same time admitting that he visited the place where the scaffolding was, at least twice a day. Saw that they were working upon a scaffold other than he.had intended to have provided for their use and allowed them to continue without attempting to stop it. Had the master so conducted himself it would not be pretended that the court would not be required to permit a jury to say whether he had performed his duty. The situation is not changed when the master intrusts the performance of a duty which he owes to the servant to some one else. In such ca'se he who performs the master’s duty stands in the master’s place, and his act is the act of the master.

The judgment should be reversed, with costs to the appellant to abide the event.

Van Brunt, P. J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.


author: Follett, J.:

text:
    Minnie L. Ackerman, Respondent, v. The Third Avenue Railroad Company, Appellant.

      Bmmning up by counsel — when objection to remm'ks should be made — rtfusal to entertain exceptions.

    If a defendant desires to object to the remarks of the counsel for the plaintiff made in summing up the case before a jury, he should do so when they are made or at least not later than at the conclusion of the address.
    A court may, in its discretion, refuse to entertain exceptions taken upon a trial after the jury has returned to the bar of the court with its verdict, and it is then too late to lay the foundation for exceptions to matters which have previously occurred in open court.
    Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 18th day of October, 1893, upon the verdict of a jury for $8,000 rendered by direction of the court after a trial at the New York Circuit and also from an order entered in said clerk’s office on the 9th day of November, 1893, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

      Fred P. Pelajield, for the appellant.

      A. W. Otis, for the respondent.
   Follett, J.:

This action was brought to recover damages resulting from a personal injury caused, as alleged and found, by the negligence of the defendant’s employees.

On June 28, 1891, the plaintiff was a passenger on one of the defendant’s open cars, which left the track at a curve and collided with a post on the elevated railroad. The car struck the post with such force that one of the passengers was thrown forward to the street, and the plaintiff was thrown forward on to a seat in front of her, and to the car floor, causing injuries from which she has not recovered.

The defendant asks for a reversal of the judgment on the following grounds:

First. Because the court refused to nonsuit the plaintiff;

Second. Because the court refused to charge four additional requests preferred by the defendant ;•

Third. Because the court refused the defendant’s request that the official stenographer be directed to enter in his minutes statements which the defendant’s counsel asserted that the plaintiff’s counsel made in summing up to the jury;

Fourth. Because the court denied the motion for a new trial on the minutes.

No exceptions were taken to the rulings admitting or excluding evidence-, and no exceptions were taken to the charge as delivered. Before the court charged the jury the defendant preferred twenty-six requests, all of which were charged except the eleventh, twelfth, fifteenth and twenty-fifth, which were withdrawn. The defendant ■also preferred, before, the charge was delivered, four additional requests. It is not asserted that any one of those was justified by the evidence, but it is alleged that they were by the remarks of the plaintiff’s counsel in his address to the jury. No objections were taken to the remarks when made, nor was the attention of the court ■called to them until after the jury returned to the bar of the court, and announced that it had agreed on a verdict; whereupon the defendant made this request: “ Before the verdict is taken, I make ■an application that the stenographer may note that in the summing up, plaintiff’s counsel referred to the affliction of the parents and their ■suffering by reason of this injury. The point of my application being that some of my last requests to charge were made in view of that, and I think that I am entitled to that on record. Request declined, and defendant excepts.”

At this stage of the trial the court was under no obligation to grant tlie request. If tlie defendant desired to object to tlie remarks of tlie plaintiff’s counsel lie should have done so when, made, or at least not later than at the conclusion of his address. The court may, in its discretion, refuse to entertain exceptions taken after the jury has returned to the bar of the court with its verdict. (Code Civ. Proc. § 995.) And it is then too late to lay the foundation for exceptions to matters which have previously occurred in open court. The exception taken to the refusal of the court to charge the four additional requests was not error.

"Without stating the evidence, we think it was sufficient to justify the finding of the jury that the negligence of the defendant’s servants caused the accident, and that the plaintiff in no way contributed thereto. Nor can we say that the damages were excessive.

The court did not err in refusing a nonsuit or in refusing to grant a new trial on the ground that the damages were excessive.

The judgment and order should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Rosa Herzog, Appellant, v. The New York Elevated Railroad Company and Another, Respondents.

      Equity jurisdiction — action to restrain the operation of an elevated railroad — not maintainable {after consent by the city) by one succeeding to its ownership.

    The powers of a court of equity cannot be invoiced for the purpose of working an injustice.
    Upon the trial of an action brought to restrain the maintenance and operation of an elevated railroad, it was shown that prior to June, 1885, the premises in question were owned by the mayor, aldermen and commonalty of the city of New York, and were thereafter conveyed to the plaintiff. Prior to that date the defendants’ elevated railroad had been erected and was in operation in front of the premises, pursuant to the authority of law, the consent, in writing, of the city of New York having been first given to the construction thereof.

      Held, that the city of New York, being the owner of the premises in question, and also of the fee of the street, when it consented to the construction of th& railway upon such street, parted with all claim to compensation for the use of the easements in the street by said railroad;
    That as the railroad was built with the consent of the then owner of the premises;, it would be inequitable to permit a subsequent owner, buying the premises with knowledge of such consent, to enjoin the operation of the road.

      Appeal by tlie plaintiff, Rosa Herzog, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 14th day of December, 1891, rendered upon the decision of the court after a trial at the New York Special Term, dismissing the plaintiff’s complaint, and for costs.

      B. K. Ingalls, for the appellant.

      E. B. Thomas, for the respondents.
   Van Brunt, P. J.:

This action was brought in equity to restrain the further maintenance and operation of the defendant’s road in front of the premises of the plaintiff situated on Third avenue in the city of New York, and incidentally to recover damages already sustained by the plaintiff to the fee, and for loss of rents of these premises caused by the maintenance and operation of the defendant’s railroad.

Upon the trial it appeared that prior to June, 1885, the premises in question were owned by the mayor, aldermen and commonalty of the city of New York, and on such date were conveyed to one Korn, who, on the 15th of July, 1885, conveyed the same to the plaintiffs. Prior to this time the defendant, the New York Elevated Railway Company, had erected its road along Third avenue in front of the premises, which were subsequently conveyed to the plaintiff, pursuant to authority of law, the consent in writing of the corporation of the city of New York being first duly given to the construction of said road, and were operating the said road at the time of the conveyance to said Korn, and by Korn to the plaintiff.

Upon this state of facts the court below dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

We might very well base our decision upon this appeal upon the opinion delivered by the judge in the court below, he showing that the mayor, aldermen and commonalty owning the fee of the street, of Third avenue for a public use, when they granted the easement of such street pursuant to legislative authority necessarily conveyed all rights which, as the owners of property abutting upon said street, they might possess therein.

In other words, that the corporation of the city of New York, being tbe owner of tbe premises now claimed1 by tlie plaintiff, and also of the fee of the street (impressed it is true with a public use), when it consented to tlie construction of this railway upon said street, it parted with all claim to compensation for the use of easements in said street, by the railroad company, which affected its property abutting thereon.

But there is another view of this case which seems to be fatal to the right of the plaintiff to maintain this action. The road, the operation of which this action is brought to en join, was built by and with the consent of the owners of the premises in question ; and it would be inequitable now to permit a subsequent owner buying said premises with knowledge of- such consent, to enjoin the operation of the road in violation of its terms. Even if an action for damage might be sustained, a court of equity would not, under such circumstances, intervene, and by injunction restrain the operation of the defendant’s road. It is a familiar principle in equity jurisprudence that the powers of a court of equity cannot be invoked for the purpose of working an injustice.

We are of opinion, therefore, that the judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concurred.

Judgment affirmed, with costs.


text:
    Roswell W. Keene, Appellant, v. The Tribune Association of the City of New York, Respondent.

      Order for interlocutory judgment, not appealable — what reviewable on appeal from an interlocutory judgment — slander — charge of special damage unnecessary— innuendo.

    An appeal from the interlocutory judgment rendered in an action brings up for review the sufficiency of tlie complaint therein.
    An order directing the entry of an interlocutory judgment upon the argument of a demurrer is not appealable.
    Whatever words have a tendency to hurt or bring ridicule or contempt upon a person, or are calculated to prejudice a man who seeks his livelihood by any trade or business, are actionable, when proved to have been spoken in relation thereto, and unless the defendant shows a lawful excuse the plaintiff is entitled to recover without allegation or proof of special damage.

      Where there is nothing in an article that shows that any of the allegations thereof were made in respect to any trade or business in which a person was engaged, an innuendo cannot change or enlarge the plain meaning of the words, and it is not enough that the language tends to injure such person in his oflice, profession or trade, but it must be proven to have been spoken in relation thereto.
    Appeal by the plaintiff, Roswell W. Keene, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of December, 1886, dismissing the plaintiff’s complaint and for costs, and also from an order made at the New York Special Term and entered in said clerk’s office on the 18th day of November, 1886, sustaining the defendant’s demurrer to the plaintiff’s complaint.

      JR. IF. Keene, appellant, in person.

      JR. ]V. /Saekett, for the respondent.
   Van Brunt, P. J.:

The appeal from the order directing the interlocutory judgment must be dismissed, with ten dollars ctísts, there being no provision in the Code for any appeal from such an order.

The appeal from the interlocutory judgment brings irp the sufficiency of the plaintiff’s complaint. It was an action to recover damages for an alleged libel. A demurrer was interposed, alleging as a ground that it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action.

. Two grounds' in support of said demurrer are urged. They are, First, that there is nothing libelous per se in the publication complained of; and second, that there is np adequate allegation of special damage.

Upon the part of the appellant it is not claimed that there is any adequate allegation of special damage, hut it is claimed that such allegation is not necessary, and that the publication is libelous per se, because it refers to the plaintiff in his occupation, either as á lawyer or as a commissioner in the organizing of the corporation referred to in the article complained -of.

There does not seem to be any dispute in regard to the law, but the difference of opinion arises from the application of the well-recognized rules of law to the facts alleged. There is no question that “whatever words have a tendency to hurt, or bring ridicule and contempt on the plaintiff, or are calculated to prejudice a man who seeks his livelihood by any trade or business are actionable. When proved to have been spoken in relation thereto, the action is supported, and unless the defendant shows a lawful excuse, the plaintiff is entitled to recover without allegation or proof of special damage, because both the falsity of the words and the resulting damage are presumed.” (Moore v. Francis, 121 N. Y. 204.) But the difficulty with the plaintiff’s caso is that there is nothing in the article which shows that any part of the publication was made in .respect to any trade or business in which the plaintiff was engaged. Where such is the case an innuendo cannot change or enlarge the plain meaning of words, and it is not enough that the language tends to injure the person in his office, profession or trade, but it must be proven to have been spoken in relation thereto. (Moore v. Francis, supra.) As was said in Kinney v. Nash (3 N. Y. 177), it must touch him in his office, profession or trade.

A somewhat striking illustration of this rule is contained in the case of Oakley v. Farrington (1 Johns. Cas. 130), where the plaintiff was a justice of the peace, and sued the defendant because the latter called him a damned rogue. The plaintiff was nonsuited upon the ground that these words, although spoken of a magistrate, had no relation to his official character or conduct and were not actionable. In the case of Van Tassel v. Capron (1 Den. 250) the declaration charged the speaking of the following words of the plaintiff in his character of justice of the peace : “ There is a combined company here to cheat strangers, and Squire Yan Tassel has a hand in it; King Allen, Ira Green and Squire Yan Tassel are a set of damned blacklegs.” But the declaration did not show that the imputation was connected with the plaintiff’s official conduct, and it was held that they were not actionable.

It would, therefore, appear that the complaint was fatally defective, and that the judgment appealed from must be affirmed, with costs.

Follett and Parker, JJ., concurred.

Appeal from order dismissed, with ten dollars costs, and judgment affirmed, with costs.


author: Per Curiam :

text:
    The People of the State of New York ex rel. The American Bible Society, Respondent, v. The Commissioners of Taxes and Assessments for the City and County of New York, Appellants.

      Levy of a complete tax on May first — a law passed April twenty-ninth is applicable thereto.

    Where the levy of a tax did not become complete prior to the .1st day of May,, 1893, an act of the Legislature which became a law on the 29th day of April, 1893, and, by its provisions, went into effect immediately, is applicable to the-assessment of such tax for the year 1893.
    Appeal by the respondents, The Commissioners of Taxes and Assessments for the City and County of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of January, 1894, directing that a peremptory writ of’ mandamus issue requiring the respondents to remit a proportion of the-tax assessed and levied for the year 1893 on certain real estate of’ the relator.
    The American Bible Society was a religious corporation incorporated under the laws of the State of New York for the purpose of spreading the Christian religion. Such society owned certain real estate in the city of New York on which was a building known as the-Bible House. The society used 58,483 square feet of the floor room, thereof exclusively for the purpose of its organization, of the rental value of $50,388, and it offered for rent the remaining part of the building, to the extent of 61,284 square feet, of the rental value of $52,800. Such real estate was assessed in the year 1893 for $400,000,. and the society was taxed thereupon the sum of $1,288.
    The society made an application under chapter 498 of the Laws-of 1893 for the partial remission of its tax for the year 1893, which was refused by the commissioners of taxes and assessments in and for the city and county of New York, who denied that such act authorized them to remit any tax prior to that of the year commencing the 2d Monday in January, 1894.
    Chapter 498 of the Laws of 1893 provides:
    “ The real property of a corporation * * * organized exclusively for * ^ * religious * * * (or) missionary * * * purposes * * * and used exclusively for carrying out thereupon one or more of such purposes, shall be exempt from taxation. * * *

      “ If a portion only of any lot or building of any such corporation * * * is used exclusively for carrying out thereupon one or more of such purposes of any such corporation * * * then such lot or building shall be so exempt only to the extent of the value of the portion so used, and the remaining portion of such lot or building to the extent of the value of such remaining portion shall be subject to taxation. * * * ”

      James M. Wan-d, for the appellants.

      Frederick 8. Dimcam, for the respondent.
   Per Curiam :

The one question which is presented upon this appeal is whether the act of the Legislature becoming a law on the 29th of April, 1893, and which by its provisions went into effect immediately, exempted the property of the relator from the taxes which were levied during the year 1893.

It is urged on the part of the appellants that such exemption cannot be claimed because it would make the operation of the act retrospective. It will be observed that such cannot be the effect of the statute, since the levy of the tax does <aiot become complete in the city of New York prior to the first of May, any party having the right to apply to the commissioners at any time prior thereto and subsequently to the opening of the tax books for relief against erroneous taxation.

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

Present — Yan Brunt, P. J., O’Brien and Eollett, JJ.

Order affirmed, with costs.


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    Jose A. Del Valle, Appellant, v. Josiah A. Hyland and Another, Respondents.

      Transfer by an insolvent debtor — preferring a creditor — action to set aside a transfer as being fraudulent as to creditors — Statute of Limitations — findings of the court— evidence.

    The fact that a debtor is insolvent, and that a creditor knows it, does not prevent, the debtor from securing or paying such creditor a valid existing indebtedness, and the giving of a preference to such creditor cannot be successfully assailed by other creditors of the debtor, as the debtor has the right to pay the claim of one creditor in preference to, and to the exclusion of, all others.
    An action brought for the purpose of setting aside an assignment or transfer upon the ground that it was made- with intent to hinder, delay and defraud the creditors of the assignor, presents a question of fact, and when upon sufficient evidence this is determined one way or the other, and there is no such preponderance of evidence as would require the appellate court to set aside the judgment and grant a new trial, the decision of the trial judge should not be disturbed.
    Where a claim remains unpaid for a period so long that it is barred by the Statute-of Limitations, a doubt is'created as to whether it has not been paid or as to its ever having had a valid existence, but where it is shown that there is a moral obligation to reimburse a person for money he had paid out in settlement of certain deficiency judgments or for cash loans made by him, although such claims may have been ‘barred by the Statute of Limitations, there is present a. . sufficient consideration for a transfer of property in payment thereof, providing the amount of the property transferred is not so excessive that it appears to-have been made with the intent to hinder, delay or defraud creditors, or providing such intent is not otherwise shown.
    Upon the trial of an action brought to set aside a transfer or assignment upon the-ground that it was made with the intent to'hinder, delay and defraud creditors, the court is not bound to find the evidence which supports its conclusion; all that is required is that there should be sufficient evidence to justify the finding and conclusion that the transfer or assignment was made with or without the intent to hinder, delay or defraud creditors.
    Appeal by the plaintiff, Jose A. Del Valle, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 3d day of August, 1893, upon the decision of the court, after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits.

      Q. O. Hulse, for the appellant.

      Julien T. Damies and Herbert Barry, for the respondents.
   Per Curiam :

Tins action is brought by a judgment creditor of the defendant Navarro to set aside the transfer made to the defendant Hyland of •.five life insurance policies upon the life of the defendant Navarro for $10,000 each, on the ground that the samé was made to hinder, .delay and defraud the creditors of N avarro.

The first trial of this action resulted in a judgment dismissing the •complaint upon the plaintiff’s case, which judgment upon appeal to this court was reversed, and a new trial ordered (40 N. Y. St. R,epr. •■924) upon the ground that the proof would have sustained, although it did not require, a finding that the assignment was made in bad ffaith, and with intent to hinder creditors, and that it was error to •dismiss the complaint.

Upon the second trial and upon the whole evidence, as well of the •defendants .as of the plaintiff, a judgment was rendered dismissing •the complaint .as to both defendants upon the merits.

As upon the first trial, it now apjiears that “in January or February, 1889, Mr. Josiah A. Hyland, one of the defendants, found •on the table in his private office a written instrument purporting to have been executed by Mr. Jose F. Navarro, the other defendant, on the 31st day of December, 1888, whereby that gentleman transferred to him all his right, title and interest in and to five policies •of life insurance for $10,000 each, subject to a claim thereon of ,$15,000 by Charles Coudert’s executor, for which Mr. Ooudert held the policies as collateral security.”

Although the transfer was not personally delivered to the defendant Hyland, but was, as stated, found by him on his table, it appears by the evidence of both defendants that its being placed there was the result of prior conversations resulting in an agreement by Mr. Navarro to deliver such policies in payment of his indebtedness to Mr. Hyland.

The value of such policies on the 31st of December, 1888, in case of the death of Navarro, was considerably over $50,000, and as paid-up policies, nearly that amount, and their value as cash policies on that date was $24,039.95. So that if we deduct the $15,000 due to Mr. Coudert and interest, there would remain a cash value in the policies of about $9,000.

It was found by the learned trial judge, and conceded, that at the time when tliese transfers were made the' defendant Navarro was insolvent and that such insolvency was known by tbe defendant Hyland. Tbe consideration, as claimed, for tbe transfer by the former to the latter consisted of an indebtedness of about $19,000 (exclusive of tbe $15,000 due Coudert and interest thereon, wbicb tbe defendant Hyland testified be assumed), consisting of five principal items:

Cash prior to and up to tbe 24th day of November, 1880. $6,132 00

Interest on same wbicb tbe defendant Navarro guaranteed to tbe defendant Hyland on tbe money given him from November 24,1880, to December 31,1888. 2,981 IT

Indebtedness of defendant Navarro to defendant Hyland for professional legal services from in or about 1880 up to December 31, 1888........................ 5,000 00

Indebtedness of defendant Navarro to defendant Hyland for office rent of defendant Navarro’s two sons...... 2,000 00

Deficiency judgment paid by defendant Hyland on or about February 29, 1888, on a bond given by him at tbe request of tbe defendant Navarro for money received by defendant Navarro on a loan on real estate in Eighty-seventh street, New York' city........... 2,5T3.11

These claims for moneys advanced, services rendered, office rent, and for tbe payment of tbe deficiency judgment, were supported by tbe testimony of both defendants, and if sucb testimony is to be credited, then tbe findings of tbe court below were amply sustained and tbe judgment should not be disturbed. Because it would thus appear tbat, for an indebtedness of about $18,000, tbe defendant Hyland bad received policies, the cash value of wbicb would not exceed $10,000 over and above the $15,000 for wbicb it wras pledged to Mr. Coudert. Tbe fact tbat tbe defendant Navarro was insolvent and tbat Mr. Hyland knew it, would not prevent tbe former from securing or paying tbe latter a valid existing indebtedness, and tbe giving of a preference to Hyland cannot be successfully assailed by tbe other creditors. Tbat a debtor has tbe right to pay tbe claim of one creditor in preference to and to tbe exclusion of all tbe others, has been many times decided.

Though a criticism can justly be made upon tbe loose way in which the dealings between the defendants were carried on, and though the usual indicia of indebtedness, such as notes, the presentation of bills or demands for payment, and the keeping of an account showing such indebtedness in the books of the creditor are wanting- and their absence is susceptible of different inferences, still the testimony offered of the close and intimate relations between them, the strong financial position which the defendant Navarro once held, and the confidence in his financial ability which those dealing with him entertained, explain the loose manner of their dealings, and left it a subject peculiarly within the province of the trial judge to determine. And, in the end, the whole question narrows down to one of credibility, as to whether or not this alleged indebtedness upon various items which have been alluded to was a scheme arranged between the defendants- for the purpose of creating fictitious claims, and, thereby securing to themselves the benefits of the policies of insurance, and thus defrauding Navarro’s creditors.

In an action of this kind, where an assignment or transfer is sought to he set aside upon the ground that it was made with intent to hinder, delay and defraud creditors, presenting as it does a question of fact, and when upon sufficient evidence this is determined one way or the other, and there is no such preponderance of evidence as would require this court to set aside the judgment and' grant a new trial, then the decision of the trial judge should not be disturbed.

11 ere a suspicion is created by reason of the peculiarity and stalcness of some of the items going to make up the indebtedness. And where,, as here, a claim remains unpaid for a period so long that it is barred by the Statute of Limitations, then a doubt as to whether it has not been paid, or. as to its ever having had a valid existence, is created. Hut, where it is shown that there was a moral obligation, to say the least, to reimburse the defendant Hyland for what he had paid out in settlement of the deficiency judgment or loaned in cash to Navarro, although the claim may have been barred by the Statute of Limitations, there is present a sufficient consideration for a transfer of property in payment, provided the amount of such property is not so excessive that it appears to have been made with intent to hinder, delay and defraud creditors, or provided such intent is not. otherwise shown.

Considerable stress is laid upon tlie fact, as claimed, that the trial judge made certain findings upon insufficient evidence, and, contrary to the plaintiff’s request, refused to make findings which were justified by the evidence.

"With respect thereto we can but repeat what has been said lately in the case of Faxon v. Mason (decided herewith), that upon the trial of an action such as this, the court is not bound to find the evidence which supports the conclusion; all that is required is that there should be sufficient evidence to justify the finding and conclusion that the transfer or assignment was made with or without intent to hinder, delay or defraud creditors.

We find no valid ground for disturbing the decision of the trial judge, and think that the judgment should be affirmed, with costs.

Present — -Van Brunt, P. J., O’Brien and Follett, JJ.

Judgment affirmed, with costs.

       Reported ante, page 408.


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

text:
    Isaac K. Funk, Appellant, v. The Evening Post Publishing Company, Respondent.

      Libel — a verdict improperly rendered for defendant not set aside where costs only W'e involved — conditional affirmance of an order denying a motion for a new trial.

    In an action brought to recover damages for a libel, -where the only question presented is one of costs, and where no mistake of the judge has crept in and swayed the opinion of the jury, and the verdict is simply one against evidence, a new trial will not be granted because the jury has rendered a verdict for the defendant instead of one of nominal damages for the plaintiff. (Parker, J., dissenting.)
    The granting or denial of a motion for a new trial is, to a certain extent, discretionary, and the General Term has the power to affirm an order denying a motion for a new trial, conditionally, upon the respondent’s stipulation to waive an extra allowance granted in the action.
    Appeal by the plaintiff, Isaac K. Funk, from a judgment of the ■ Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of March, 1893, upon the verdict of a jury after a trial at the New York Oircuit, and also from an order entered in said clerk’s office on the 2d day of March, 1893, denying the defendant’s motion to set asid? the verdict and for a new trial made upon the minutes.

      A. S. Bacon, for the appellant.

      L. Qodkin, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages for an alleged libel, and the only question which is presented upon this appeal is as to the' right of the appellant to a reversal upon the ground that he was entitled to a verdict for nominal damages, whereas the jury, although so instructed by the court, found a verdict for the defendant.

It is claimed upon the part of the appellant that the rule seems to be beyond controversy in every case in a court of record where the law entitled the plaintiff to nominal damages such damages are a strict legal right, and a verdict for defendant will be reversed. And it is claimed that there is but one exception to this rule, and the exception can only apply where the action is so trivial as to be brought in a Justice’s Court, and the plaintiff’s only object seems to be costs and to vex the defendant, and no principle seems to be involved. A number of cases have been cited to support this proposition. But it seems to us that an examination of the same shows that no such rule exists as is claimed upon the part of the appellant, and that, upon the contrary, the cases establish the proposition that, whére. the mere question of costs is involved, and where no mistake of the judge has crept in and swayed the opinion of the jury, and the verdict is simply one against evidence, a new trial will not be granted because the jury have rendered a verdict for the defendant instead of nominal damages for the plaintiff.

It will be necessary to consider only a few of the cases cited by the appellant in order to show that such is the condition of the decisions. In the case of Hyatt v. Wood (3 Johns. 238), which was an action for assault and battery, where the injury was trivial and the jury found a verdict for the defendant, a new tristl was refused notwithstanding the misdirection of the judge.

The court in its opinion says: “ If this had been an action quarre clausum fregit in which the right to the freehold came in the question there might be some reason for granting a new trial. But for an assault by which the party has sustained little or no injury there seems to be no sufficient ground for the court to interfere. It has frequently been decided in this court that in cases where the damages are trifling a new trial will not be granted after a verdict for the defendant merely to give the plaintiff an opportunity to recover nominal damages, and when no end of justice is to be attained by it, though there inay have been a misdirection of the judge.” This last proposition is probably not sustained by the subsequent authorities.

In Herrick v. Stover (5 Wend. 580) this refusal to grant anew trial where there had been a misdirection of the judge seems to have been disapprcwed although i'ts existence is recognized, and the court refused to apply it because the verdict involved a property right. The court says: “ It was suggested on the part on the defendant that as this was evidently a vexatious suit and the damages which the plaintiff would be entitled to recover would be merely nominal, we ought not to .interfere even if there had been error. The rule referred to by the counsel for the defendant has never, I believe, been applied to a case like this. The cases in Burrows, 11, 54, 664, were motions for new trials where verdicts had been rendered against the weight of evidence, and the court refused to grant the applications because the damages were trivial and the prosecutions appeared to be vexatious. In the case of Edmonson v. Machell (2 T. R. 4) there was an alleged misdirection to the jury by the judge who tried the cause. The court refused to set aside the verdict or pass upon the questions of law because they thought justice had been done between the parties. In actions of assault and battery and for trespasses this court have refused new trials for the misdirection of the judge where there was little or no injury.

“In Hyatt v. Wood (3 Johns. 239) the court refused the motion for a new trial, but they said if the action had been qioare clausum fregit, in which the right to the freehold came in question, they should have decided otherwise.

“ Lord Kknyon said in Wilson v. Rastall (4 T. R. 753) that he did not recollect a single case where a mistake of the judge liad crept in and swayed the opinion of the jury, in which the court had ever refused to grant a new trial. T apprehend the case before us diff’ers from any to which the rule mentioned in -the above cases has been applied. It is much like the case which was considered in Hyatt v. Wood, an exception. The object of this suit is not merely to recover such damage as the plaintiff may have sustained, but it is also to determine the extent of his right to property acquired for a private way. There is also a difference as I apprehend in the application of this rule whether applied to a motion for a new trial or a writ of error. It is said by Ashurst, Justice, in Edmonson v. Machell, that an application for a new trial is an application to the discretion of the court, who exercise that discretion in such a manner as will, best answer the ends of justice.’ But where a record is brought into this court for revision, and error is found in it, is it a matter of discretion in us whether we will correct that error or not ? I have always supposed that the party who has been affected by an error, be the extent of that injury ever so small, can require of ns ex débito just itice to correct it.”

The rule laid down in these cases shows distinctly that where there has been no error upon the part of the court, and where the appeal comes up on a motion for a new trial, a verdict will never be set aside and such new trial ordered, simply because the verdict has been for the defendant instead of for the plaintiff for nominal damages.

It will not be necessary to refer to all the authorities cited. But to those upon which the plaintiff lays the most stress it may be proper to call attention. In addition to those already mentioned he cites the case of Dixon v. Clow (24 Wend. 188). This was an action for trespass upon land, where the court refused to charge correctly, and for the error and misdirection of the judge a new trial was granted. The case of Lyon v. Kramer (24 Hun, 231) was an action for trespass upon the plaintiff’s building; a nonsuit was ordered, and it was held to be error because the judgment tended to deprive the plaintiff of a right in respect to his building. In the case of Stephens v. Wider (32 N. Y. 351) the rule stated was clearly recognized; and the cases in which a party is entitled to a reversal, even though he could recover only nominal damages, are those in which an error crept in and controlled the verdict, or in which some question of permanent right is involved. So, in the case of Moore v. N. Y. Elevated Ry. Co. (4 Misc. Rep. 132) the plaintiff’s title to the easements upon wliicli tlie trespass liad been committed was in question. The action was for damages for a past trespass, and judgment for the defendant would preclude a recovery for trespasses which should be committed in the future, of a like character. And so in all the cases, unless some permanent right is affected, or some error of the court has crept in. by which the jury have rendered an erroneous verdict, the court will not set aside the verdict upon appeal because plaintiff was entitled to nominal damages. The question comes up in the case at bar, not to correct an error during the progress of the trial, but to review the order of the court denying a motion for a new trial upon the ground that the verdict of the jury was against the evidence.

The rule seems to be too well established to be interfered with at the present time; and it is not necessary for us to say whether, in our judgment, if it was an original question, we should have so held. The almost universal practice has been to refuse to interfere where the plaintiff is entitled to merely nominal damages.

We think, however, that the court should not, under the circumstances of this case, have granted the extra allowance which it did. And as the granting or denial of a motion for a new trial is, to a certain extent, discretionary, we think that an affirmance of the order denying such motion herein sho.uld be conditioned upon the defendant stipulating to waive the extra allowance granted by the court. Upon giving such stipulation we think that the judgment and order should be affirmed, without costs.

O’Brien, J., concurred.

Parker, J.

(dissenting):

Asan-mino-, as do all the members of the court, that the learned trial judge was right when he instructed the jury that the plaintiff was entitled to recover nominal damages, we have presented a case where the refusal to give the plaintiff that wdiicli was absolutely his due has resulted in a judgment which, so' far as the record is concerned, adjudges the alleged libelous matter to have been true, and awards to the defendant against the plaintiff a judgment of over $800 for costs. An unjust result, certainly. Were there no decisions seeming to point the way to an affirmance of the judgment entered on such a verdict, we would, I think, have no difficulty in' reaching the conclusion that a verdict having the effect to declare that to be true which was in fact libelous, and carrying with it a judgment against the plaintiff of over $800, where rightfully nothing should have been awarded, should be set aside.

Had the first verdict ever rendered in favor of a defendant, where the plaintiff was entitled to recover nominal damages, carried with it a judgment' for costs against the plaintiff of over $800, it may well be doubted whether the court would have considered it one of the trifles of which courts will not take notice.

Whether that 'assumption be well founded, however, is of no practical moment, because it must be conceded that the cases cited in the opinion presenting the views of the majority of the court, as well as others which might have been referred to, seem to establish the rule that where only nominal damages are involved the courts will not set aside the verdict because against the weight of evidence.

An exception to the rule equally well established is that when in addition to the question of nominal damages there is involved some property right which is affected by the erroneous verdict, it will be set aside.

As none of the cases to which our attention has been called are for libel, the question has not been considered, so far as we have discovered, whether injury to reputation, which in a greater or less degree results from a libelous publication, is of such a character as to bring it within the exception to the general rule to which we have referred.

Certainly, there is nothing which a right-minded m¿n possesses which he values more highly than a good reputation, and a good name proves every day to be of practical value to -its possessor.

Anything which unjustly tends to destroy or injure it in the slightest degree interferes witli and affects a substantial right — a right to the enjoyment of and to the benefits accruing from a good name.

A verdict for a defendant when plaintiff is entitled to nominal damages for trespass will not be reversed if the action involves nothing else, but if the title to the laud trespassed upon be involved, however small its value, the result is otherwise, and no good reason suggests itself why the same rule should not apply, when a permanent injury may result to the reputation of an individual.

If lie lias been libeled, although a jury may differ with him as to the extent of the damage done, he has the right to have his reputation freed for all time from whatever cloud the libelous article may have thrown upon it.

I advise a reversal of the judgment.

Judgment and order affirmed, without costs, upon giving the stipulation required in opinion.


text:
    Emory M. Van Tassel, Plaintiff, v. Frank Williams and Others, Defendants.

      Evidence of the existence of a partnership.

    Upon the trial of an action brought upon certain promissory notes the only questions presented were whether the plaintiff was a partner with the defendants in their business, and whether the money represented by such notes was a contribution of capital by him.
    It was shown that prior to April, 1887, the defendant Weeks and plaintiff were engaged in business together, and during such month the defendants Williams, Hungerford and Weeks entered into an agreement in writing of co-partnership, tlie firm name to be F. Williams & Co., Williams to do the outside work, Hungerford to attend to the correspondence and general outside work, and Weeks to have charge of all the financial affairs and to furnish the capital. It was further agreed that the capital invested in the business should draw six per cent interest, to be charged to expense account; that Williams should have one-fourth, Hungerford one-fourth and Weeks one-half of the profits ; that Williams should draw out of the business twenty-five dollars, Hungerford the same amount, and Weeks fifty dollars a week, and that such agreement was to continue for two years. It was also shown that there was an understanding or agreement between all of the four parties that the three defendants should form the co-partnership; that the plaintiff should furnish the money, and that Weeks should divide his half of the profits with the plaintiff ; that the reason why the plaintiff did not wish his name to appear in the firm was, that it would conflict with his other business, and that his name as a capitalist would be sufficient for the backing of the business. In pursuance of. such arrangement the plaintiff contributed the money to the firm.
    Upon the expiration of the original agreement it was renewed for two years longer. To some extent the plaintiff interfered with the management of the business. He introduced the defendant Weeks to several banks and guaranteed his actions, and he left his signature of the firm of F. Williams & Co. at the Produce Exchange.

      Séld, that the plaintiff could enforce a proprietary right in the profits of the business; that Weeks was his agent, and that as far as the capital contributed was concerned, it was ■ contributed as capital by tbe dormant partner whose agent had agreed on his behalf that it should be contributed;
    That there was sufficient evidence to go to the jury upon the question, under proper instructions, as to whether it was not the intention of all the parties that the plaintiff should be interested in the business as a dormant partner, represented by Weeks.
    Motion by the defendants, Frank Williams and others, for a new trial on a .case containing exceptions ordered to be heard at the General Term in the first instance, after a verdict for $14,399.51, rendered in favor of the plaintiff by direction of the court on a trial at the New York Circuit on the Ith day of March, 1893.

      J. If. Bowers, for the motion.

      O. JSf. Bourse, Jr., opposed.
   Van Brunt, P. J.:

This action was brought to recover upon several promissory notes alleged to have been given by the defendants, doing business under the firm name of F. Williams & Co., to the plaintiff. The only question involved was whether the plaintiff was a partner with the defendants in their business, and the money represented by these notes a contribution of capital as such partner by him. Upon the trial of the case a verdict was directed by the court, and the question presented is whether there was any evidence which entitled the -defendants to have this question submitted to the. jury, or whether the evidence was of such a character that as matter of law the plaintiff occupied the relation claimed by the defendants.

There is a preliminary question raised as to the burden of proof, it being claimed by the defendants that under the pleadings the. defendants were entitled to the opening and closing of the case.

It is not necessary in view of the disposition which was made of the case to consider particularly this question. There being no denial contained in the answer of any of the allegations contained in the complaint, it was an admission of the plaintiff’s cause of action unless the defendants could establish the allegations set up in their answer by way of defense, namely, that the plaintiff was jointly interested with the defendants in the business out of which these notes arose, and hence could not maintain this action against the defendants. In fact, upon the trial the plaintiffs offered no proof,' and the court held the notes to be admitted. It is true some letter heads and signatures of F. Williams & Co. to letters showing the individual names of the defendants were offered, but these were entirely unnecessary in view of the fact that the co-partnership of the defendants was not denied, the only allegation being the affirmative allegations as above stated. The court, however, having disposed of the question of the right of plaintiff to recover as matter of law, if such ruling was correct this error should not affect the judgment.

It appeared that prior to April, 1887, the defendant Sanford II. Weeks and the plaintiff were engaged in business together, and in said month the defendants Williams, Ilungerford and Weeks entered into an agreement in writing for a co-partnership, the firm name to be F. Williams & Co., Williams to do the outside work, Ilungerford to attend to the correspondence and general outside work, and Weeks to have charge of all the financial affairs and furnish the capital. It was further agreed that the capital invested in the business should draw six per cent interest, to be charged to expense account; that Williams should have one-fourth, Ilungerford one-fourth and Weeks one-lialf of the profits; that Williams should draw out of the business twenty-five dollars, Ilungerford the same amount, and Weeks fifty dollars per week, and that this agreement was to continue for two years. It further appears that there was an understanding or agreement between all the four parties that the three defendants should form a co-partnership, which was done by the agreement above referred to; that the plaintiff should furnish the money, and that Weeks should divide his half with the plaintiff; that the reason why the plaintiff did not wish his name to appear in the firm was that it would conflict with his other business; that his name as a capitalist would be'sufficient for the backing of the business, and that he was to have one-fourth of the profits of the business, being one-lialf of the half reserved to Weeks by the written agreement. It was in pursuance of this arrangement that the plaintiff contributed the money to the firm. Upon the expiration of the original agreement it was renewed for two years longer. It further appeared that the plaintiff interfered to some extent in the management of the business, introduced, the defendant Weeks to several banks and guaranteed his actions, and left his signature of E. Williams & Co. at the Produce Exchange.

In this condition of the pi-oof the court held that no partnership ivas established, and that the action cernid be maintained presumably under the authority of Burnett v. Snyder (81 N. Y. 550), and this authority seemingly sustains the conclusion of the learned judge. But we think that the jury may find certain facts to exist which will be fatal to the plaintiff’s right to recover in this action.

In the case cited it was held that a contract between two or more partners and a third person, with the knowledge and assent of the other partners, by which the third person is to share in the profits and losses in the firm business of the partner with whom he contracts, does not constitute such a participation in the profits as will make the third person a partner or liable for partnership debts. The ground upon which that decision was based seems to be that participation in the profits of the business does not in all cases make the participant a partner as to third persons. To have that effect the participation must be in the profits as such under circumstances which give him a proprietary right as jirincipal trader in such jirofits before division. In that case it ajijieared that the jiarty sought to be charged as jiartner had refused to become a jiartner, although his refusal had no connection with the knowledge of the liability which he would incur to creditors by becoming a jiartner ; and that it was arranged between the jiarties that he should take a share of one jiar'tner’s interest, and the only agreement made, so far as the jiarty sought to be charged as a partner was concerned, ■was the agreement between him and one of the jiartners. The business of the firm did not require the contribution of cajiital, and none was contributed by any of the jiartners. The jiarty sought to be charged aided the firm by purchases and consignments of merchandise to the firm for sale; but took no jiart in the management of the business. Upon these facts the court held that he was not a partner either as to creditors or between himself and the other parties in interest. In the case of Nirdlinger v. Bernheimer (138 N. Y. 45) it was held that a sub-partner with one engaged with others in a joint enterprise is entitled to an accounting in reference thereto, and this although the other jiartners had no knowledge of tbe sub-partnership. In that case Burnett v. Snyder was referred to, and it was lield not to be applicable, because the sub-partner there made no contribution to 'the capital of the principal firm, and had no proprietary interest in its funds, or in the profits arising in its business before division, and the question involved related solely to his liability to the creditors of the firm. Now, in the case at bar it appears that the plaintiff was to contribute the capital of the business. Ilis name was not to appear, but the defendant Weeks was to represent his interest in the firm, and he -was to have one-quarter of the profits, the same as the other members, for the contribution of his capital. It is true it does not appear to have been stated, but. such contribution of capital was the ground'work upon which his compensation depended. The evidence is that plaintiff was to furnish the money. It is true that in the agreement between the three partners it is provided that Weeks shall furnish the necessary capital but the testimony is that the plaintiff was the man from whom that capital was to come ; and it was plainly the understanding and intention of the parties that such capital should be at the risk of the business. Besides, in the case at bar the plaintiff- did interfere in the management of the business, changed the bank account, and thought himself enough of a partner to sign the name of the partnership,, leaving his signature of E. Williams & Co. at the Produce Exchange.

It seems to us that it may be inferred from all these circumstances that it was the understanding and intention of these parties that the plaintiff should be a dormant partner in this concern, and that his interest should be ostensibly represented by Weeks. He did not. decline to become a partner as Snyder did in the case of Burnett v. Snyder (supra). All that he said on that subject was that he-did not want his name to appear in the firm because it would conflict with his_other business if it was known that he was interested in the business.

Under all these circumstances it seems to us that'there is a clear distinction between the case of Burnett v. Snyder and the one at' bar, and it would seem that it was not the intention of the Court of Appeals that the case cited should be extended in its application.

Under this evidence it seems to be clear that the plaintiff could enforce a proprietary right in the profits of the business, that Weeks was his agent, and that as far as the capital contributed was concerned, it was contributed as capital by tbe dormant partner whose ■agent had agreed on liis behalf that it should be contributed.

We think, therefore, that there was at least sufficient evidence to go to the jury upon the question, under proper instructions, as to whether it was not the intention of all these parties that the plaintiff should be interested in this business as a dormant partner represented by Weeks. If so, this action could not be maintained.

The exceptions should be sustained and the motion for new trial granted, with costs to the defendants to abide the final event.

■O’Brien and Follett, JJ., concurred.

Exceptions sustained and motion for new trial granted, with eosts to the defendants to abide the final event.