text:
    Delos W. Matteson, Respondent, v. Benjamin R. Gillett and Another, Appellants.

      Principal and agent — correspondence by letter — what does not create a/wthority to employ a third person.

    Upon the trial of an action brought to recover under a contract of employment it appeared that the contract was made with the plaintiff by one Hopkins, who, it was alleged, was the agent of the defendants. To prove the authority of Hopkins to act as the agent of defendants, a letter of the defendants to him was produced, which contained the following clause: “ If you can come and run the factory for us this season write ns what you want a month, commencing April 35th. Six months, we board you and do your washing, and if you can’t come what you can get a man for. * * * If you find a man for us have him write to us what he wants per month for six months. ”
    In reply to this letter Hopkins wrote to the defendants : “I will come out and run the factory for you or furnish a man, with board and washing, for §00, or without board for S65 per month. I am paying my hands §65 per month with board for the season. * * * If you want us to come write when you want us, as I can’t be there only part of the time, but wrill furnish an experienced hand that will give good satisfaction when I hain’t there.”
    In answer to this letter the defendants wrote to Hopkins; ,f We will give you §50 per month and board and washing; will not want only one of you, yourself or your man. * * * You stated in your letter that you couldn’t be here only part of the time. If you or your experienced hand comes, and the man we have spoken of in our letter gets so that he can run the factory alone, will it matter to you whether you stay here and work for us all the season or not ? If ' so let us know, and we will make different arrangements.”
    Hopkins, replying to this letter of the defendants, wrote : “ I received your letter and will send an experienced hand for the season, for I have got to hire him for the season or not at all, to go out there or work for me at home if I come to work for you. * * * Please let us hear from you by return mail, for the time is short.”
    No other correspondence was had between the defendants and Hopkins, except that the defendants subsequently wrote to him that they would not want him or want him to furnish them a man, as they had one.

      Held, that there was nothing in this correspondence between the defendants and Hopkins which indicated any. intent on the part of the defendants to authorize Hopkins, as their agent, to employ the plaintiff or any one else for them, or to authorize him in any way to bind them by any contract that he made with the plaintiff; that no such authority was given Hopkins, and that there was no contract between the plaintiff and the defendants.
    Appeal by tlie defendants, Benjamin B. Gillett and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 9th day of July, 1894, upon the decision of the court rendered after a trial by the court without a jury at the Otsego Circuit.

      R. R..JeUiff, for the appellants.

      Burr Matéice, for the respondent.
   Martin, J.:

The trial court found that on or about April 3,1893, the plaintiff and defendants entered into a contract whereby the defendants agreed to employ the plaintiff from May 1, 1893, to November 1 1893, and to pay him for his services the price of fifty dollars per month, and to furnish him his board and do his washing during that time, and for a breach of that contract by the defendants the court awarded the plaintiff damages to the amount of $271.38.

The defendants contend that the evidence was wholly insufficient to justify such finding and judgment. It is not pretended that any such contract was ever made by the parties themselves. The only ground upon which it is claimed that this judgment can be sustained is that the defendants authorized one Oscar Hopkins to employ the plaintiff for them, and that he was employed for them by him as their agent. If Hopkins had any such authority it was conferred upon him by the correspondence which passed between the defendants and Hopkins, as the case discloses that the defendants did not see Hopkins until after the time when the contract with the plaintiff was alleged to have been made. Therefore, if Hopkins possessed any such authority we must seek for it in these letters.

On March 31, 1893, the defendants wrote Hopkins: “If you can come and run the factory for us this season write us what you want a month commencing April 25th. . Six months, we board you and do your washing, and, if you can’t come, what you can get a man for. * * * If you find a man for us, have him write to us what he wants per month for six months.” At most this letter asked Iiopkins to write the defendants what he would want a month for six months if he could come and run the factory for them, and, if he could not, the inquiry was made as to what he could get a man for. The defendants, however, added that if he found a man for them that he should have him, the man, write them what he wanted for six months. In this letter we find nothing to authorize Hopkins to employ the plaintiff. Clearly the letter was one of simple inquiry. It is true the defendants inquired what he could get them a man for; but they at the same time negatived the idea that Hopkins was to have authority to employ a man for them by stating that if he found one he should have the man write them what he would want a month, clearly intending thereby to provide for further negotiations between the man found and themselves.

In reply to that letter, and on April tenth, Hopkins wrote to the defendants: “I will come out and run the factory for you, or fur-' nish a man, with board and washing for $50, or, without board, for $65 per month. I am paying my hands $65 per month with board for the season. *• * * If you want us to come write when you want us, as I can’t be there only, part of the time, but will furnish an experienced hand that will give good satisfaction when I hain’t there. You meet us at the cars if convenient.” In this letter there is no suggestion that Hopkins had, or even thought he had, been given authority to employ any one for the defendants, but its clear purport is that he, Hopkins, would himself engage to do the work for the defendants for the price named, with the understanding that when he could not be there himself he would furnish a satisfactory substitute.

In apswer to this letter, and on April fourteenth, the defendants wrote: “"We will give you $50 per month and board and washing; will not want only one of you, yourself or your man.” This portion of the letter clearly indicates that the defendants were still negotiating with Hopkins to run their factory personally, or by some person in his employ. But the defendants then add as qualifying what they had already written: “You stated in your letter that you couldn’t be here only part of the time. If you or your experienced hand comes, and the man we have spoken of in our letter gets so that he can run the factory alone, will it matter to you whether you stay here and work for us all the season or not ? If so, let us know and we will make different arrangements.” This part of the letter was clearly intended to so far qualify the preceding statement as to include the provision that unless the plaintiff was willing to modify the propositions which had been previously made by and between them, to the extent of his consenting not to insist upon staying through the season if the defendants’ man got so that he could run the factory alone, the negotiations were to end and the defendants were to make different arrangements.

It is obvious that Hopkins must have so understood the letter. It could have no other meaning. In his letter of April eighteenth he writes: “ I received your letter and will send an experienced hand for the season, for I have got to hire him for the season or not at all, to go out there or worhfor me at home if 1 come to worhfor you, so I will come with him and stay a week and help get started, free of charge, if you will board me and fetch me back to the cars, and we will be there April 29th, ready to commence. Please let us hear from you by return mail, for the time is short.” This letter, like those preceding it, plainly indicates that Hopkins intended either to go there and run the factory himself, or employ some one to run it for him when he was not there, and also shows that he was not disposed to accept the qualification contained in the defendants’ last letter, for the reason that he had to hire his man for the season or not at all.

No other correspondence was had between Hopkins and the defendants except that, on April twenty-fourth, the defendants wrote Hopkins to the effect that they would not want him or want him to furnish them a man, as they had one.

Surely, there is nothing in this correspondence which indicates any intent upon the part of the defendants to authorize Hopkins, as their agent, to employ the plaintiff, or any one else, for them, or to authorize him in any way to bind them by any contract that he made with the plaintiff. We are of the opinion that Hopkins had no authority to bind the defendants by the contract he made with the plaintiff, and consequently there was no contract between the plaintiff and the defendants, and tbe court erred in so finding and awarding a judgment to the plaintiff.

Hardin, P. J., and Merwin, J"., concurred.

Judgment reversed on the law and facts and a new trial ordered, with costs to abide tbe event.


source: Caselaw Access Project

author: Martin, J.: Merwin, J.

license: Public Domain

text:
    In the Matter of the Distribution of the Proceeds Received by Ella B. Strong, Executrix, etc., of Anna M. Degaramo, Deceased, in the Settlement of an Action against The New York, Lake Erie and Western Railroad Company for Causing the Death by Negligence of Said Deceased. William Degaramo, Appellant; Daniel Johnson and Others, Respondents.

      Negligence — ■ death in another State — recovery purely statutoi'y — under what law distributed — comity — divorce in another State — its effect.

    At common law no cause of action was given to the executor or administrator of a deceased person where death was caused by negligence, and the right to recover in such a case is purely statutory.
    Where a person is killed in a railroad accident occurring in the State of Ohio, and a statute of that State gives to certain persons a right to recover damages for such death, any moneys paid in settlement of the claim are to he distributed in our courts according to the terms of the Ohio statute. (Merwin, J., dissenting.)
    Where such decedent, although a resident of another State (but not' of Ohio), leaves personal property in the State of New York, and her will is proved in the latter State, and in the proceedings under such will an attempt is made to distribute the proceeds of the death claim, distribution must be made in compliance with the Ohio statute. (Merwin, J., dissenting.)
    It is only by virtue of the statute of Ohio and of the fact that a similar statute exists in this State that such a claim can be enforced here; the right to enforce it in a State, other than that in which a person is killed, being based upon the principle of comity.
    A claim of this nature is not a part of the general assets of the estate of the deceased person. It is to be collected by the personal representative of the deceased only as a trustee for the persons who, under the statute, are entitled to it.
    A divorce obtained in another State against a citizen of the State of New York, in an action where there was no personal service of process within the former State and no personal appearance in the action by the defendant, is void in the State of New York, and does not change the status of the defendant in the jurisdiction of the State of New York.

      Appeal by William Degaramo, husband of Anna M. Degaramo, deceased, from a decree of the Surrogate’s Court of Tompkins county, entered in said court on the 2d day of August, 1894, directing the payment by Ella B. Strong, as executrix of Anna M. Degaramo, of a sum of money received by the executrix in settlement of a cause of action given her by the statutes of the State of Ohio against the New York, Lake Erie and Western Railroad Company by reason of that company having negligently caused the death of Anna M. Degaramo, to the brothers and sisters of the latter, as her only next of kin.
    The statutes of Ohio relative to the recovery allowed the executrix are as follows:
    Action eor Injury by Wrongful Death.
    “(Right of action given to representatives for causing death.) Sec. 6134. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) .have entitled the party injured to maintain an action and recover damages in respect thereof; then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured,, and although the death shall have been caused under such circumstances, as amount in law to murder in the first or second degree, or manslaughter. (Revised Statutes of Ohio [6th ed.], vol. 2.)
    “ (For whose benefit and by whom brought; limit of damages ;■ personal representative of decedent may settle case after suit is. commenced.) Sec. 6135. Every such action, shall be for the-exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person; and in every action the jury may give such damages, not exceeding in any case ten thousand dollars, as they may think proportioned to the pecuniary injury resulting from such death, to the persons respectively for whose benefit such action shall be brought. Every such action shall be commenced within two years after the death of such deceased person. Such personal representative, if he was appointed in this State, with the consent of the court making such appointment, may, at any time, before or after the commencement of a suit, settle with the defendant the amount to be paid, and the amount received by such personal representative, whether by settlement or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment, in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries and the laws of descent and distribution of personal estates, left by persons dying intestate.”
    The provisions of the Code of Oivil Procedure of the State of New York in this regard are found at section 1902 et seg.

    The accident which resulted in the death of Anna M. Degaramo occurred in the State of Ohio on September 30, 1891, and she died from her injuries at Kent, Ohio, on October 3, 1891.

      II. Austin Olark and Theo. JR. Tuthill, for the appellant.

      Howard J. Mead, for the respondents.
   Martin, J.:

The fund which was distributed by the decree from which this appeal is taken was received by Ella G. Strong, the executrix of Anna M. Degaramo, deceased, in settlement of a claim against the New York, Lake Erie and Western Railroad Company for causing the death of the decedent by its negligence. The executrix was a resident of Tioga county, N. Y. The decedent died leaving personal property within the county of Tompkins, and leaving a last will and testament which was duly admitted to probate by the surrogate of that county on the 14th day of December, 1891, and letters testamentary were thereupon issued to Ella G. Strong as such executrix.

The decedent at the time of her death was a resident of the State of Michigan. She died in the State of Ohio on the 3d day of October, 1891. Subsequently to the issuing of letters testamentary by the Surrogate’s Court of Tompkins county, ancillary letters testamentary were issued to the executrix by the Probate Court of one of the counties in the State of Ohio. On January 28, 1892, the Surrogate’s Court of Tompkins county made an order authorizing the executrix to settle or compromise such claim or cause of action against the railroad company, and subsequently she settled it for $1,000, and received that sum on such settlement. The expenses incurred in, and allowed by the surrogate for, settling and compromising such claim was the sum of $216.58. The surrogate also allowed the executrix $50 for her commissions, leaving $733.é2 to be distributed to the parties entitled to it. The question presented by this appeal is whether the brothers and sisters of the decedent, who were her heirs at law and next of kin, were entitled to have this fund distributed among them, or, whether, as claimed by the appellant, it should have been paid over to William Degaramo, who was the husband of the decedent.

The decedent and William Degaramo were married in the State of New York more than ten years prior to the 3d of October, 1891. Since such marriage the husband has remained a resident of the State of New York. After the marriage the decedent went to the State of Michigan, and continued a resident of that State until the time of her death. Under the laws of that State she obtained a divorce from her husband upon grounds which would not have been sufficient to authorize a divorce in this-State. The husband did not ■ appear in that action, and no process therein of any kind was ever personally served upon him. No action for a divorce was ever brought in this State.

On the trial it was conceded that the law of the State of Michigan and of the State of Ohio gave the fund in question to the husband of the decedent if she died leaving one, but if she had no husband at the time of her death, then, as tire decedent died leaving no descendant or representative of any descendant surviving her, the fund would go to her .brothers and sisters. If, therefore, she had no husband, the decree was proper, and should be affirmed; otherwise, it should be reversed. To determine this question it becomes necessary to consider the effect of the divorce granted to the •decedent in the State of Michigan.

It must be regarded as settled in this State that a divorce obtained as this was did not in any way change the status of the defendant in this State. While another State may adjudge the status of its own citizens towards a non-resident, and other States must acquiesce so long as the operation of the judgment is confined to the State in which it was granted, still it cannot extend beyond the borders of that State to subvert the laws and policy of another State, nor without his consent and against his will, fix upon a resident of .another State a status in hostility to the laws of the State wherein he resides. The contract of marriage cannot be annulled by judicial action, so as to bind a defendant without the limits of the State in which it is granted, unless the court awarding such judgment acquires jurisdiction of the defendant. And where, as in this case, there has been no personal service of process within the State where the judgment is rendered, and there is no personal appearance by the defendant, a judgment of divorce is inoperative and void in this State. (The People v. Baker, 76 N. Y. 78; O'Dea v. O'Dea, 101 id. 23; Jones v. Jones, 108 id. 415; de Meli v. de Meli, 120 id. 485; Rigney v. Rigney, 127 id. 408; Williams v. Williams, 130 id. 193.) Erom the doctrine of these authorities, it follows, we think, that William Degaramo was the lawful husband of the decedent in this State, and in any other jurisdiction than the State of Michigan.

This leads us to the consideration of the question whether this fund should have been distributed in accordance with the laws of the State of New York, where the proceeding was instituted ; under the laws of the State of Michigan, where the decedent resided at the time of her death ; or under the laws of the State of Ohio, by which the right of action was given.

By common law the plaintiff had no cause of action, claim or right of recovery for the killing of her decedent. It is only by force of some statute that her claim or right of recovery existed. No such right of recovery existed under the statutes of either the State of Michigan or the State of New York, as the statutes of those States could not operate extra-territorially. Therefore, it was-only under and by virtue of the statutes of the State of Ohio, and of the fact that there is a similar statute in this State, that the liability of the railroad company could be enforced here. The right to enforce such a liability in a State other than that in which the person is killed, is based upon the principle of comity due by one State or country to another under similar circumstances. (Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48.)

Although such a right of action could be enforced in this State, the right to be enforced was only that given by the statute of Ohio: The statute of that State (§§ 6134, 6135, R. S.), so far as it gives a right of action for negligently or wrongfully killing a person, is in all its essential particulars like the statute of this State. As that-statute expressly awards to tlie husband of the decedent the benefit of such a claim or cause of action, and as the rights of recovery and distribution are controlled by the statute of the State of Ohio, it follows that the appellant being the husband of the decedent, except as to his status in the State of Michigan, is entitled to the fund in question.

The contention of the respondents that this fund was a part of the assets of the estate of the decedent, and, consequently, should be distributed in accordance with the laws of the State of Michigan where she resided, cannot be sustained. In Steel v. Kurtz (28 Ohio St. 191), an action to recover damages for causing death by the wrongful act or negligence of the defendant, which was brought under a former statute of that State, it was held that the money realized from such an action was not to be treated as a part of the general estate of the intestate, but that the personal representative in whose name the action was brought was a trustee of the fund and must distribute the proceeds according to the provisions of the statute. In Hegerich v. Keddie (99 N. Y. 258, 268) it was, in effect, said that the cause of action given by such a statute is not to the estate of the' deceased person, but to his or her representatives as trustees, not for the purposes of general administration, but for the exclusive use of the beneficiaries specified in the statute, citing Dickins v. N. Y. Cent. R. R. Co. (23 N. Y. 158); Yertore v. Wilwall, (16 How. Pr. 8). The doctrine of that case was also recognized in Wooden v. W. N. Y. & P. R. R. Co. (126 N. Y. 10, 15) and in Dennick v. Railroad Co. (103 U. S. 11, 20).

These considerations lead us to the conclusion that the learned Surrogate’s Court erred in holding that the fund in question was to be distributed according to the law of the State of Michigan, and in directing a distribution of the same among the next of kin- of the decedent.

The decree of the Surrogate’s Court should be reversed and a new trial ordered, with costs to abide the event.

Hardin, P. J., concurred.

Merwin, J.

(dissenting):

The question whether, within the meaning of the Ohio statute, the decedent left a husband, should, I think, be determined according to tbe law of the residence of the decedent, in analogy to the rule applicable to the distribution of personal estates left by persons dying intestate.J (Ohio Rev. Statutes, § 6135; 2 Kent’s Com. § 429 ; 2 Williams’ Executors [6th Am. ed.], 1625 ; Redfield’s Suit. Pr. [5th ed.] 651, 652, and cases cited.) This was the course followed in the court below, and the decree should, I think, be affirmed.

Decree of the Surrogate’s Court reversed and a new trial ordered, with costs to sibide the event.


author: Martin, J.:

text:
    Levi Washburn, as Sheriff of Jefferson County, Respondent, v. Carthage National Bank, Appellant.

      Attachments — sufficiency of affidavits and, conyplaint — title of sheriff levying — measure of damages in trover.

    In cases where an attachment is granted upon affidavits and also upon a verified complaint, both are to be considered in determining whether the statutory requirements for an attachment have been met.
    A complaint verified by an agent, who states that he had full charge of the plaintiff’s business; that he knew the facts, and that the plaintiff did not know them, and who in the complaint, and in an affidavit accompanying it, makes allegations, not upon information and belief, which in substance, though not in form, comply with the requirements of the statute, presents a case in which the attachment should be sustained.
    An officer who levies under an attachment acquires a special property in the personalty seized, which enables him to maintain an action, in the nature of trover, against any person who unlawfully interferes with his possession.
    In such an action the plaintiff is entitled to recover as damages the value of the property taken or used at the time and place when and where it was so taken or used, and the fact that the property was of such a nature (e. g., a liquor for tanning hides in use in a vat) that, if removed, it would have been worthless to the purchaser does not change the rule of damages.
    Appeal by the defendant, the Carthage 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 Jefferson on the 13th day of March, 1894, upon the verdict of a jury rendered after a trial at the Jefferson Circuit, and also from an order bearing date the 1st day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes.
    TF1 B. Van Allen and Watson M. Rogers, for the appellant.

      A. M. KiTby, for the respondent.
   Martin, J.:

On and prior to May, 1892, Thomas Revell was operating a tannery in the village of Carthago. He was at that time indebted to Florence L. Merriam in the sum of'about $1,363.36, and was also indebted to the defendant in about the sum of $6,300. On the 12th of May, 1892, Revell made a general assignment for the benefit of his creditors, which was subsequently set aside as to Mrs. Merriam and the defendant.

On the trial the defendant claimed that on. the ninth or tenth of May Revell verbally authorized it to take possession of the ijannery and appurtenances, for the purpose of securing his indebtedness to it. On the twentieth of May a suit was commenced by Mrs. Merriam upon her claim, an attachment was granted, and on that day a deputy of the plaintiff executed the attachment by levying upon certain personal property of Revel], including 272 cords of tanbark and a. quantity of tanning liquor in the vats at such tannery. At the time-the attachment was levied the tannery was in operation, hides were-in the liquor in the vats, and the bark was in the yard. The tannery was the property of Mr. Dickerman. The hides belonged to-Albert J. Foster. The contract between Foster and Revell for tanning these hides had been assigned to the defendant as collateral security for Revell’s indebtedness, but it did not realize enough thereon to pay its indebtedness into about $1,000.

After the attachment was levied the property was left upon the premises with the consent of the owner of the tannery, and the plaintiff, by his deputy, forbade the defendant’s employees from interfering with or using the property he had attached. Notwithstanding this, the defendant used the liquor and a large quantity of the bark levied upon. It was to recover the value of the liquor and bark thus used that this action was brought.

The principal contest on the trial, so far as the right of the plaintiff to recover was concerned, was whether before the levying of the attachment upon the property in question, Revell had made a valid transfer or pledge of the bark and liquor in question to the defendant to secure his indebtedness to it. While it was shown that the defendant had made claim to the property under certain chattel mortgages, yet the only claim now made by the defendant is under the alleged transfer or pledge.

The question whether there was such a transfer or pledge was submitted to the jury, and it found there was not. After examining the evidence bearing upon this question, together with the circumstances attending and surrounding the transaction as disclosed, we are satisfied that the question whether there was such a transfer or pledge was one of fact for the jury, and we see no reason to disturb its finding thereon.

The appellant also contends that the verdict was wrong so far as it found against the defendant the sum of $300 for the liquor in the vats which was used by it. It was shown by the evidence of witnesses called by the plaintiff, and by the defendant as well, that the liquor in question was worth from $300 to $800. The jury found its value to be $300. That it was of that value to the defendant there can be no doubt. Nor is there any question but that it would have been of that value to any person who had occasion to use it at once in the vats where it was. But the appellant insists that as its removal to another place or a failure to use it at once would have rendered it valueless, the plaintiff should recover only nominal damages, although it may have been of much greater value to the defendant than the sum allowed by the jury. We do not think this contention should be sustained. As the proof disclosed the value of the property at the time when and place where it was taken by the defendant, we think the plaintiff was entitled to recover its value at that time and place, and that the jury was not bound by the speculations or statements of witnesses as to what its value might have been under other circumstances or conditions.

We think that the defendant’s contention, that the affidavits upon which the attachment was granted were insufficient, cannot be sustained. The particular’ contention made by the defendant is that they omitted to state that the plaintiff was entitled to recover a sum stated, over and above all counterclaims known to him, and that the affidavit was in part upon information and belief, and the sources of liis information and the grounds of his belief were not stated. It is, perhaps, fair to the appellant to say that this point was made upon the proof as to the contents of one of the affidavits, and not upon the affidavit itself, it not having been produced at the trial, but having been subsequently received and made a part of the case.

An examination of the papers upon which the attachment was granted discloses that it was granted upon the complaint, verified by Scudder Todd, who was the agent of the plaintiff, and who in his affidavit of verification to the complaint stated that he had full charge of the plaintiff’s business, knew the facts set forth in the complaint, and that the plaintiff personally did not. None of the allegations of the complaint were upon information and belief. They, disclosed that the defendant was indebted to the plaintiff for the amount claimed, and that no part thereof had been paid. Todd also verified the additional affidavit used in procuring the attachment. After stating the grounds of the action, it was stated therein that the plaintiff was justly entitled to recover from the defendant $1,363.36, with interest thereon from February 10, 1892, and that there were no counterclaims, discounts or offsets existing in favor of the defendant, to the knowledge or belief of the deponent. It was also stated that the deponent was the general agent of the plaintiff, was fully authorized to collect the notes by suit, and was conversant with the plaintiff’s business, and that the plaintiff was not conversant with it. These allegations were, we think, a sufficient compliance with the statute, and although they did not conform to its precise wording, yet they were within the spirit of its provisions, and sufficient to give the judge jurisdiction to grant the attachment. (Lamkin v. Douglass, 27 Hun, 517 ; Edick v. Green, 38 id. 202, 209 ; Billwiller v. Marks, 21 N. Y. Civ. Proc. Rep. 162; Mallary v. Allen, 15 Abb. N. C. 338; Bates v. Pinstein, Id. 480 ; Central National Bank of Troy v. Ft. Ann Woolen Co., 57 N. Y. St. Repr. 316; affd. on opinion of Special Term, 60 id. 873; Nason Mfg. Co. v. Craft Co., 81 Hun, 578.) That the complaint and affidavit together contained a sufficient specification of the ground of the plaintiff’s claim we have no doubt.

The plaintiff’s right to maintain this action for the conversion or destruction of the property attached cannot be successfully challenged. It seems to be well settled that an officer who attaches personal property in the manner prescribed by law, acquires a special property therein which enables him to maintain an action in the nature of trover against any person who unlawfully interferes with it. (26 Am. & Eng. Ency. of Law, 750, and cases cited.)

We have examined each of the several rulings to which our attention has been called by the appellant in its brief, but have found none that would justify us in reversing the judgment or that need be specially discussed.

ILardin, P. J., and Merwin, J., concurred.

Judgment and order affirmed, with costs.


author: Martin, J. :

text:
    Robert J. Davis and Another, as Administrators, etc., of Ebenezer Davis, Deceased, Respondents, v. Spencer Davis, Appellant, Impleaded with Another.

      Express trust — Statute of Limitations — proof of personal transactions with a deceased person— Oode of Oiril Procedure, § 829.
    Where an uncle intrusts money to his nephew upon his agreement to deposit it in his own name in a bank, but for the uncle’s benefit, the nephew becomes a trustee of an express trust and the Statute of Limitations does not begin to run against the beneficiary in such case until the trustee has openly, to the knowledge of the beneficiary, denied, disclaimed or repudiated the trust.
    Upon the trial of an action brought by the administrators of the uncle who had died to recover the deposit, the nephew on his cross-examination testified that his uncle was with him at the time the deposit was made.

      Held, that such a question put on behalf of the administrators did not open the door to evidence of further conversation between the nephew and the deceased' by which the nephew sought to establish a gift of the money to him by his uncle;
    That the referee committed no error in admitting evidence as to acts and declarations of the decedent where such evidence was offered for the sole purpose of showing his mental condition.
    Appeal by the defendant, Spencer Davis, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Oneida on the 10th day of November, 1894, upon the report of a referee, with notice of an intention to bring up for review upon such appeal the order for judgment, the judgment and all questions of law and fact, together with the decision of the referee.
    Ebenezer Davis was the uncle of Spencer Davis, the defendant.

      Goodier <& Wolcott, for the respondents.

      Risley, Robinson cfe Love, for the appellant.'
   Martin, J. :

The purpose of this action was to secure- a determination as to the title to certain moneys deposited with the defendant the Savings Bank of Utica in the name of the defendant Davis. These moneys we claimed by the plaintiffs as the personal representatives of Ebenezer Davis, deceased, and were also claimed by the defendant Spencer Davis.

The undisputed evidence shows that on the 10th day of January, 1876, the sum of $250 was deposited in the bank in the name of Spencer Davis; that the money thus deposited was handed to an officer of the bank by the defendant Davis, and that on April 1, 1876, the plaintiffs’ intestate, in the absence of the defendant Davis, deposited to the credit of the same account the further sum of $150. Both of these were deposits of moneys belonging to the decedent, unless there was a valid gift of the same by him to the defendant Davis.

The question principally litigated was whether the money thus deposited was intended by the decedent as a gift to the defendant Spencer Davis, or whether, as Maimed by the plaintiffs, the money was deposited in his name for the decedent without any intent on his part to give him the money so deposited.

Upon that question the referee found that the money belonged to the decedent, and that the plaintiffs, as his legal representatives, were entitled to it. He also found that there was no gift to the appellant of either of the sums mentioned. This conclusion was based upon the grounds : 1. That the decedent at the time was of unsound mind and incapable of making a gift; and, 2. That there was no intention on the part of the decedent to make any such gift.

A thorough examination of the evidence has led us to the conclusion that it was sufficient to justify the findings of the referee upon the questions of fact, and that as to those questions the decision of the referee should be regarded as final.

The appellant, however, insists that the plaintiffs’ cause of action was barred by the Statute of Limitations. We think not. The evidence tends to show that the money was deposited in the name of the defendant Davis under an express agreement made with the decedent that it might be deposited in his, Davis’, name for the benefit of the decedent, and that it was to remain his money although deposited in the name of Davis. The referee has so found. Under'such circumstances, Davis, so far as he had control ■of this money, became a trustee of an express trust, holding it as such for the benefit of the decedent. In such cases the statute does not begin to run against the beneficiary until the trustee has openly, to the knowledge of the beneficiary, denied, disclaimed or repudiated the trust. (Decouche v. Savetier, 3 Johns. Ch. 190 ; Perry on Trusts, §§ 863, 864; Reitz v. Reitz, 80 N. Y. 538 ; Kane v. Bloodgood, 7 Johns. Ch. 90; Hamer v. Sidway, 124 N. Y. 538, 549; Zebley v. The Farmers’ Loan & Trust Co., 139 id. 461.)

We find no evidence in the case which even tends to show that anything ever occurred between the plaintiffs’ intestate and the defendant Davis to indicate that the latter in any way disclaimed the arrangement made between them under which the' plaintiffs claimed these moneys, or that the defendant Davis ever openly, to the knowledge of the beneficiary, disclaimed or repudiated the trust.

On the trial the defendant Spencer Davis was called as a witness, and testified that he saw the pass book in question ; that lie was the Spencer Davis mentioned in it and had that book; that he got it at the savings bank at Utica, and that he made a deposit of $250 at the time he received the book. Upon his cross-examination he testified that the plaintiffs’ intestate was with him on that day, and that he went into the bank with him when he made the $250 deposit. On the re-direct examination he was asked : What was said and done by you and Ebenezer at the time the deposit of $250 was made ? ” This was objected to as incompetent under section 829 of the Code, incompetent and immaterial. The objection was overruled and an exception taken. The witness answered : “ Ebenezer didn’t say anything to me at the bank, only pulled out the money and handed it to me ; the amount was $250 ; he said he would give me that money 'and I was to leave it in tlie bank as long as he lived, and then I should take it out and do what I had a mind to with it; I think that is all that was said; he said it at the time he handed me the money; the money had not been handed to me until I made the deposit; I handed the money into the bank and got the pass book, Exhibit 2.” The plaintiffs’ counsel then asked the referee to strike out the testimony of the witness on the re-direct examination as to the transaction when the money was deposited, on the ground that it appeared that it ivas a personal transaction with .the decedent. This motion was granted and an exception taken. The referee also struck out themross-examination of the witness as to Ebenezer’s being with him when the defendant made the deposit at the bank. The defendant now insists that this ruling was erroneous. That the evidence of this witness was competent under section 829 is not pretended. The appellant, however, claims that the door was opened for the admission of this evidence by the cross-examination of the witness by the plaintiffs. That the plaintiffs having asked the witness whether their intestate was present at the time of the deposit of the $250 was made, gave them the right to prove the full particulars of that transaction. We think otherwise. The most that can be said is that the plaintiffs proved on the cross-examination sufficient to show that the evidence of the witness was incompetent. We think the ruling of the referee was correct, and that he properly struck out this evidence. (Miller v. Montgomery, 78 N. Y. 282; Brague v. Lord, 67 id. 495 ; Holcomb v. Holcomb, 95 id. 316, 325 ; Matter of Eysaman, 113 id. 62; Matter of Will of Dunham, 121 id. 575; Adams v. Morrison, 113 id. 152; Price v. Price, 33 Hun, 69 ; Erwin v. Erwin, 26 N. Y. St. Repr. 759.)

The defendant also objected to evidence which tended to show that at the time these deposits were made the plaintiffs’ intestate was of unsound mind and incompetent to do' business. These objections were overruled and the evidence admitted. The cpiestion of the competency of the plaintiffs’ intestate was raised by the plaintiffs’ reply to the defendant Davis’ answer, which set up an affirmative cause of action or counterclaim. The evidence was, we think, admissible.

Robert J. Davis, one of the plaintiffs, was called as a witness, and examined as follows : Did you see the tin box at your place between May and Sept., ’76, when Ebenezer was not there? [Objected to as incompetent tinder § 829 of Code, and immaterial and not rebuttal. Overruled. Exception.] A. Yes, sir ; I saw it in the barn in the straw; that was before I went down'to Stittville; * * * Q. Have you, when in your house, seen Ebenezer outside of window ? [Objection; incompetent under § 829. Exception.] A. Yes, sir. Q. Were you present in Jefferson county when any evidence was taken as to the mental condition of Ebenezer Davis, and, if so, when ? [Objected to as incompetent under § 829 of the Code; immaterial, leading, not rebuttal.] A. No, sir. Q. Was he at any time examined as to his mental condition about that time ? [Objected to on same grounds. Overruled. Exception.] A. Yes, sir; it was in June, 1877. Q. Do yon remember one winter night of ’76 or ’77, in the neighborhood of five degrees below zero ? [Objected to as incompetent, indefinite, leading. Objection overruled. Exception.] A. Yes, sir. Q. Do you know where Ebenezer was that night ? [Objection same as above. Overruled.] A. Yes, sir. Q. Where was he? [Objected to as incompetent, § 829, and immaterial. Sustained. Exception.] Q. During the summer of ’76 did you ever see Ebenezer eating raw cucumbers in the garden % [Same objection. Sustained. Exception.]” We find no error in these rulings that would justify a reversal of the judgment.

Nor do we find any error in the ruling excluding the letter written by Emma Davis. The letter was not evidence as to any fact in issue, and in no way tended to impeach or affect the credibility of the witness.

Cornelia H. Davis was called as a witness for the plaintiffs and testified that she had heard the plaintiffs’ intestate speak of hii? bank book and money in-the bank. She was then asked: “What did he say ? ” This was objected to on the ground that what he said was no evidence of the fact, and that his declarations were not admissible. The plaintiffs thereupon stated that the evidence was. offered to show his mental condition. The objection was thereupon overruled and an exception taken. The witness answered : “ He said he had some money in the bank and he wanted to put in some more, but couldn’t draw so much interest, and asked Spencer Davis if he might put some in in his name ; he said Spencer said he might do it, and lie said he was - to keep the bank book, and had it; this was in the summer of 1816.” The defendant then moved to strike , out this evidence on the same ground. The motion was denied and an exception taken. As this evidence Avas admitted for the sole purpose of showing the mental condition of the plaintiffs’ intestate, Ave are disposed to think that no error Avas committed in admitting it for that purpose which requires us to disturb the judgment.

The foregoing are all the questions raised by the appellant in his brief.

The judgment should be affirmed, with costs.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs.


author: Per Curiam :

text:
    In the Matter of the Application of Lemon Thomson and Others, Plaintiffs, to Float Logs and Timber down the Moose River over Lands of which Julia L. De Camp and Another are the Owners and Persons Interested, Defendants. Julia L. De Camp, Appellant; Lemon Thomson and Others, Respondents.

      Bminent domain — statutory authority .must be shown, and strictly construed — talcing land for the floating of logs in Moose river — •Laws of 1851, 'chap. 207; 1894, chap. 712; Code of Civil Procedure, chap. 28, title 1.
    The power of eminent domain, which resides in the State as an attribute of sovereignty, is dormant until called into exercise by an act of the Legislature.
    Whenever an attempt is made by the State or by a corporation to take private property under this power, those claiming the right must be able to point to a statute conferring it.
    Such statutes are to be construed strictly rather than liberally.
    The owner of woodlands upon the Moose river, in the Adirondack region, has no right, under the act, chapter 207 of 1851, declaring that river a public highway, nor under the act, chapter 712 of 1894, amendatory of the act of 1851, to take proceedings under the Condemnation LaAV, Code of Civil Procedure, chapter 23, title 1, to condemn an easement in the river and lands on either side of it to the extent of ten feet, in order to enable him to float his logs to market.
    The act of 1851 does not provide for the condemnation of lands above high-water mark in any event whatever, and although section 4 of the amendatory act permits a person desirous of floating logs down the stream to construct certain chutes and reconstruct certain booms, it provides for compensation only to the owner or occupants of such booms for the damages resulting from these acts and from the floating of logs.
    It provides no compensation for the taking of lands, nor for an improvement of the river for highway purposes, as by the blasting of rocks and the removal of snags in the channel, and, therefore, an application contemplating such acts upon the part of an owner of woodlands higher up the stream has no statutory authority to justify it.
    The General Condemnation Law of the Code of Civil Procedure (Chap. 38, title 1) is a statute which merely regulates the procedure for the condemnation of property, and authorizes such procedure only when the person instituting it has authority under some independent statute to acquire the title to real property for public use.
    Arpeal by Julia L. He Oamp from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Herkimer on the 12th day of January, 1895, denying lier motion to dismiss the petition in this proceeding, which, it is claimed by the petitioners, is authorized by chapter 207 of the Laws of 1851, as amended by chapter 712 of the Laws of 1894.
    The Moose river runs in part through Brown’s tract in the Adirondack region.

      G. D. do Seth G. Adams, for the appellant.

      Charles E. Snyder, for the respondents.
   Per Curiam :

This proceeding was instituted under the provisions of the Condemnation Law (Code Civ. Proc. chap. 23, tit. 1) to condemn and acquire a right, privilege and easement to float logs, pulp wood and timber over the defendants’ lands down and through the Moose river and its branches, as they flow across township 7 and the north half of township 1, John Brown’s tract, town of Wilmurt, N. Y., together with the right, privilege and easement to make all necessary improvements by way of removing any obstructions that may exist in said river and its branches, such as removing snags, blasting-stones, boulders, etc., and also to condemn for such use a strip of land along and upon the shores of said river, its branches and tributaries for a distance of ten feet back from high-water mark upon each side thereof.

The plaintiffs have purchased and are the owners of the trees, timber and logs upon a large tract of land lying above the premises of the defendant De Camp, upon and near the Moose river and its tributaries, which they desire to float down these streams to their mills and to market, and by this proceeding seek to condemn an easement over the lands of the defendant together with ten feet of land on each side of said streams to enable them to accomplish that purpose.

Upon the presentation to the court at Special Term of the petition herein, the defendant De Camp specially appeared and interposed preliminary objections to the petition and moved to dismiss the same upon the grounds:

“ 1. The court has no jurisdiction of the subject-matter to condemn the stream and real estate described in the petition, for a highway, public or private ; the Moose river acts referred to in said petition and annexed thereto are invalid.
2. That the petitioners are not authorized to institute this proceeding under the Condemnation Law and the court has acquired no jurisdiction over defendant De Camp.
“ 3. That the petition does not show on its face that the petitioners are entitled to the judgment sought or prayed for.”

The motion was then reserved without prejudice until after the filing of an answer by defendant De Camp, which was then filed and made a part of the papers on said motion. The court thereupon denied the defendant’s motion, overruled her preliminary objections, and in pursuance of section 3367 of the Condemnation Law ordered that the issues raised by the petition and answer be referred to a referee to hear and determine.

The questions presented by this ruling are whether the plaintiffs-had any authority to institute this proceeding, and whether upon the facts alleged in the petition they were authorized to condemn the defendant’s lands. That the plaintiffs had no authority to condemn them for the purposes stated in the petition is manifest, unless such authority has been conferred upon them by some act of the Legislature. A statutory authority is requisite to justify the taking of private property for public use under the power of eminent domain, and those claiming the right must be able to point to a. statute conferring it, and in construing statutes which are claimed to authorize the exercise of the power of eminent domain, a strict, rather than a liberal, construction is the rule. (In re Poughkeepsie Bridge Co., 108 N. Y. 483.) In discussing the question in that case, Andrews, J., so clearly and fully states the doctrine applicable to this question that a quotation from his opinion cannot well be omitted. He says: “ The power of eminent domain which resides in the State as an attribute of sovereignty is, nevertheless, dormant until called into exercise by an act of the Legislature. Until a statute authorizes an exercise of the power, it is latent and potential merely, and not active or efficient, and the State can neither exercise the prerogative, nor can it delegate its exercise, except through the medium of legislation. Therefore, it is that wherever an attempt is made, either by the officers of the State or by a corporation organized for a public purpose, to take private property under the power of eminent domain, the officers or body claiming the right must be able to point to a statute conferring it. In the absence of statutory authority private property cannot be invaded by this power, however strong may be the reasons for the appropriation. In construing statutes which are claimed to authorize the exercise •of the power of eminent domain, a strict, rather than a liberal, construction is the rule. Such statutes assume to call into active operation a power which, however essentia,! to the existence of the .government, is in derogation of the ordinary rights of private ownership and of the control which an owner usually has of his property.”

Under the rple stated, the question presented is whether the Legislature has, by any statute, authorized the plaintiffs to condemn the ■defendant’s property for the purposes mentioned in the petition herein. The only pretended authority for these proceedings is contained in chapter 207 of the Laws of 1851, which was an act entitled, “ An act declaring Moose river, together with the north and south branches thereof, in the State of New York, a public highway, and regulating the passage of logs and timber down the same,” and an act to amend the same, passed May 16,1894 (chap. 712), by which section 4 of that act was amended. Section 1 of the original act declares Moose river to be a public highway for the purpose of floating logs and timber; section 2 describes the manner in which booms shall be constructed; section 3 provides the penalty for obstructing the channels of the river, except as provided in the preceding section; section 4, as amended in 1894, which is the section relied upon by the plaintiffs, provides: Persons desirous of floating logs or timber down the said stream may construct a chute or apron in connection with any dam across said stream, and may reconstruct any booms already constructed, or hereafter to be constructed in, over and across said stream, in such manner as to allow logs and timber to pass by the same, doing no unnecessary damage to the owner or occupants of said boom, and paying to such occupant or owner all damages that lie or they may sustain by reason of the floating of logs and timber, or the alteration of dams or booms, said damages to be ascertained by three commissioners to be appointed' by the Supreme Court, as provided for in the Condemnation Law, on the application of either party, and notice of ten days to the other party, unless the parties can agree; nor shall this act be construed to impair or abridge any private or individual rights in the construction of bridges, dams or booms across said river, except so far as is necessary for the improvement of said river and floating logs and timber down the same.”

While this section purports to give persons desirous of floating logs or timber down the stream the right to construct a chute or apron in connection with any dam across it and to reconstruct any booms already constructed or to be constructed over said stream, in such manner as to allow logs and timber to pass the same, doing no unnecessary damage to the owner or occupants of said boom, it provides for compensation only to the owner or occupants of such booms and for paying to such occupants or owners all damages he or they may sustain by reason of the floating of logs and timber, or the alteration of dams or booms in the manner prescribed in that section. We find nothing in this act which makes provision for the payment of damages to the owners of land over which this river runs for any improvement of the river for highway purposes by removing obstructions by blasting stones, rocks and boulders, and removing snags, or for acquiring any of the owners’ land therefor. Indeed, the only damages that seem to be provided for are such as the owners or occupants of booms along the river may have sustained by reason of the floating of logs and timber, or the alteration -of dams or booms. This falls far short of providing for damages for the taking of the defendant’s property for the purpose of improving Moose river and its tributaries, or authorizing the condemnation of such property for that purpose. We find nothing in the statute, when construed in accordance with the doctrine already stated, which would authorize this proceeding for the condemnation of the defendant’s property. There is nothing in the Condemnation Law that would authorize it, as the purpose of that statute is simply to regulate the procedure for the condemnation of property, and authorizes such procedure only when the person instituting it- has authority under some independent statute to acquire the title to real property for public use. (Oode Civ. Proc. § 3359.)

While the constitutionality of the statute of 1851, as amended in 18.94, may be doubted, still we deem it unnecessary to determine that question. If the statute is constitutional the rights given by it can be exercised and enjoyed independently of any action by the-court to condemn the defendant’s property or any part thereof, and so far as those acts are justified by that statute, they may be performed by the plaintiffs without liability to the defendant, except as in the act provided. So, too, if it be admitted that the Moose river and its tributaries are public highways by common law, the plaintiffs have the right to properly use them as such, and so far as that right extends no condemnation is necessary. But here the plaintiffs seek to condemn the defendant’s property not only in the stream or alleged highway, but for ten feet upon each side. We-are utterly unable to find any statute or authority justifying this proceeding, and are of the opinion that the court below erred in denying the defendant’s motion to dismiss it.

We think this order was appealable. If, upon the case presented by the petitioners, the court was not authorized to appoint a referee and acquired no jurisdiction, the defendant’s motion should have-been granted, and this court, upon appeal, has the power to inquire and decide whether the court had authority to act upon the application. (Matter of the City of Buffalo, 64 N. Y. 547.)

It follows that the 'order appealed from should be reversed and the proceeding dismissed.

Present — Hardin, P. L, Martin and Merwin, JJ\

Order reversed, with ten dollars costs and disbursements, and proceeding dismissed, with costs.


text:
    George A. Lance, as Temporary Receiver of The Sheridan Scotch Cap Company, Respondent, v. Patrick J. Shaughnessy, Appellant.

      JSstoppel by judgment — former adjudication — findings not included in the former judgment — preferences under the Stock Corporation Act, Laws of 1893, chap. 688, § '48.
    The findings of a court in a former action, upon the precise point involved in a subsequent one between the same parties, constitute no bar unless followed by a judgment based thereon. The judgment, not the preliminary determination of the court, is the hat.
    The judgment is final as to such facts as are litigated and decided therein, and which have such a relation to the issue that their determination was necessary to its determination.
    Where a former action was brought by the receiver of a corporation to set aside a judgment obtained by the defendant against the corporation upon the ground that the recovery was collusive and the corporation insolvent, and the court found therein that a payment in question was made in good faith, hut the judgment entered in such action contained no findings relative to the payment, such judgment is not a bar to an action in which such receiver claims that the same payment was made in violation of the Stock Corporation Law of 1893 (Chap. 688, § 48) forbidding an insolvent corporation from making any payment with an intent to give a preference to any particular creditor over other creditors of the corporation.
    Appeal by tlxe defendant, Patrick J. Shanglmessy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 18th day of May, 1894, upon the verdict of a jury rendered after a trial at Oneida Circuit, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the lGtli day of May, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      William E. Lewis, for the appellant.

      Jones c& Townsend, for the respondent.
   Martin, J.:

The sole purpose of this action was to recover of the defendant the sum of $1,500 and interest, upon the ground that it was paid to the defendant by an insolvent corporation with the intent of giving him a preference over its other creditors.

The action was based upon the provision of section 48 of the Stock Corporation Law (Laws 1892, chap. 688) which declares: “ No conveyance, assignment or transfer of any property of any such corporation, by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation, shall be valid. Every person receiving by means of any such prohibited act or deed any property of the corporation, shall be bound to account therefor to its creditors or stockholder’s or other trustees. * * * Every transfer or assignment, or other act done in violation of the foregoing provisions of this section, shall be void.”

At the time of the payment the defendant held a note of $4,000 against the Sheridan Scotch Cap Company, a domestic corporation organized under chapter 40 of the Laws of 1848, and subsequent acts amendatory thereof and supplemental thereto. That corporation was, in fact, insolvent at the time. The note held by the defendant was given July 14, 1892, dated on that day, and made payable ten days after its date. A suit thereon against the corporation had been commenced more than twenty days before the payment was made and the corporation had made default in answering, so that a judgment might have been properly entered upon that day. After the payment, and on the following day, the defendant entered a judgment for $2,541.84, being the amount of the defendant’s note, interest and costs, less the $1,500 so paid thereon. Upon the same day, August twentieth, proceedings were instituted by a majority of its stockholders for a voluntary dissolution of the corporation on the ground of insolvency, and the plaintiff was subsequently appointed as temporary receiver.

An examination of the evidence given upon the trial of this action renders it quite obvious that it was sufficient to sustain the finding of the jury that the payment in question was made when the corporation was insolvent and with the intent of giving a preference to the defendant over its other creditors.

The sole question presented upon this appeal relates to the validity of the defendant’s exception to the ruling of the court in excluding tlie judgment roll in a former action by the plaintiff against the defendant and the 'sheriff of Oneida county. The judgment roll which was offered in evidence shows that that action was brought by the plaintiff against the defendant and John 0. Schreiber, as sheriff of Oneida county, to set aside the judgment obtained by the defendant against such corporation, and also to set aside and vacate a levy which had been made by the defendant, the sheriff, upon its property under and by virtue of an execution issued upon such judgment. The ground upon which in that action the plaintiff sought to set aside the judgment was that the corporation was insolvent and that the judgment was suffered to be taken by default by the officers of the corporation in contemplation of its insolvency and by collusion with the defendant. The relief asked therein was that the judgment and levy be set aside and vacated, and that the property so levied upon be awarded to the plaintiff. The defendants in that action interposed answers which, so far as material here, put in issue the allegations of the complaint that such judgment was permitted to be taken by default by the officers of such corporation in contemplation of insolvency or by • collusion between the defendant and such officers.

The issues in that case were tried at a Special Term and the court, among other matters, found that the payment in question in the present action was made in good faith; that the officers of the corporation did not act in collusion with the defendant in the matter of such payment, and that it was not made with the intent of giving a preference to the defendant over other creditors of such corporation. The judgment entered in pursuance of such findings adjudged that the plaintiff had failed to make out a cause of action against the defendant, and that the defendant Schreiber, as such sheriff, pay over to the defendant Shaughnessy the proceeds of the sale upon such execution, but contained nothing in relation to the payment under consideration. The court having in' the former action found in the defendant’s favor upon the precise question at issue in the present case, the question is whether the judgment in that case was conclusive evidence against the plaintiff.

The claim of the respondent that this ruling should be sustained upon the ground that the former judgment was not set up in the answer as a bar to this action ought not, we think, to be upheld. An examination of tlie appeal book discloses that' tlie judgment roll was offered in evidence and objected to as inadmissible and incompetent under tlie pleadings, when the court remarked : “ The only purpose of it is upon the ground of estoppel, is it not ? ” To which the counsel for the defendant then said: “Yes, sir. Our idea is that the judgment is evidence and conclusive evidence. We do not have to plead it.” Although the defendant’s counsel answered the question of the court in the affirmative, from what he added it is manifest that he was seeking to introduce the judgment roll as conclusive evidence against the plaintiff and not to establish a technical estoppel, and the court must have so understood it. The court, however, sustained the objection and the defendant excepted. If this judgment was conclusive between the parties as to the question in issue in this case, we are clearly of tlie opinion that the court erred in excluding it. Eor although the record of a former judgment is not admissible as constituting a bar or an estoppel to an action without being pleaded, yet when the issues in an action have been adjudicated in a former action between the parties the judgment in the former action is proper as evidence of the facts established thereby, although not pleaded, and as evidence is conclusive in an action between the same parties. (Krekeler v. Ritter, 62 N. Y. 372.)

Thus we are led to the consideration of the question whether the former judgment was a bar to this action. As we have already seen, the sole purpose of the former action was to set aside the judgment obtained by the defendant and the levy made by the sheriff. Tlie judgment entered in that action was to that effect only. It contained no adjudication as to the validity of the payment made to the defendant. Under such circumstances we think the former judgment was not conclusive evidence against the plaintiff, and in no way affected his rights of recovery.

The findings of a court in a former action upon the precise point involved in a subsequent one between the same parties constitute no bar unless followed by a judgment based thereon. The judgment is the bar and not the preliminary determination of the court. (Springer v. Bien, 128 N. Y. 99.) It is only the material, relevant and necessary facts which are decided in an action that are conclusively determined thereby. A judgment does not operate as an estoppel in a subsequent action between the parties as to immaterial and unessential facts, even though put in issue by the pleadings and directly decided. It is final as to such facts as are litigated and decided therein, which have such a relation to the issue that their determination -was necessary to the determination of that issue. (Stannard v. Hubbell, 123 N. Y. 530 ; House v. Lockwood, 137 id. 259.)

Applying the doctrine of these cases to the question before us, it becomes apparent that the judgment roll offered in evidence was not evidence upon the questions at issue in this action. In the former action the question whether the $1,500 was paid with or without an intent to give the defendant preference over the other creditors of the corporation, was immaterial and unessential to the determination of the question of the validity of the defendant’s judgment and the subsequent proceedings under it. It follows, therefore, that the court committed no-error in rejecting the judgment roll offered which would justify us in reversing the plaintiff’s judgment.

As no other questions are raised by the appellant, it follows that the judgment should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgment and order affirmed, with costs.


text:
    John McNaney, in Behalf of Himself and of All Other Judgment Creditors of Francis G. Hall Similarly Situated Who Shall Hereafter Join in This Action, Appellant, v. Francis G. Hall and Others, Pespondents.

      General assignment for creditors — right to assail prior conveyances vests solely in the assignee — accuracy of the inventwy — intent of the assignor— determination of a trial court, when reversed —judgment setting aside an assignment, not an estoppel.

    If tlie purpose of a debtor in making a transfer of property to a creditor is an lionest one, and if he intends thereby to secure the debt owing by him to the creditor and that is his only purpose, he has a right to make the transfer and secure such creditor, and the transaction is valid notwithstanding the fact that at the time the debtor is indebted to various creditors in a sum exceeding the value of his property.

      Where a debtor makes a valid assignment for the benefit of creditors the right to assail conveyances made by the debtor prior to the assignment on the ground of fraud vests in his assignee alone, and such action cannot be maintained, under such circumstances, by a creditor of the assignor.
    The act of an assignee for the benefit of creditors in making schedules in no way reflects upon the act of the assignor in making the assignment. No schedules are absolutely perfect and no debtor can inventory every item of his property with strict 'accuracy. Room must be allowed for honest mistake in such respect and possibly even for careless and thoughtless error.
    The validity of an assignment for the benefit of creditors depends upon the intent of the assignor at the time the assignment is made. The subsequent acts of the assignor, however, are admissible in evidence, upon the trial of an action brought to set aside liis assignment, to reflect light upon his original intent. Where a review of the facts by an appellate tribunal is proper it is under no obligation to arbitrarily adopt the conclusions of the trial court, yet great consideration will be accorded to its opinion, especially where there is evidence upon both sides and the mind of the court is called upon to weigh conflicting statements and inferences, and to decide upon the credibility of opposing witnesses.
    In reviewing the determination of a trial court in such a casé, the appellate court is not warranted in reversing it upon the sole ground that in its opinion the trial court should have reached a different conclusion. To justify such a course it should appear that the findings of the trial court were against the weight of the evidence or that the proof so clearly preponderated in favor of the contrary result that it can be said with reasonable certainty that the trial court erred in its conclusion.
    The judgment obtained in an action brought by a creditor adjudging the assignment of his debtor, for the alleged benefit of creditors, to be fraudulent and void, and setting it aside as against the plaintiff in that action, is not an estoppel in an action instituted by another creditor of such debtor to set aside such assignment, where the plaintiff in the second action was not a party to the prior action nor a privy to the plaintiff therein ; nor is such judgment conclusive evidence in the second action against the assignor or against the assignee.
    Facts which are neither controlling nor conclusive evidence of fraud, considered.
    Appeal by the plaintiff, John MbNaney, in behalf of himself and of all other judgment creditors of Francis Gr. Hall similarly situated who shall hereafter join in this action, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Chemung on the 4th day of April, 1893, upon the report of a referee dismissing the plaintiffs complaint upon the merits.

      Baldmvn -Jh Bal&win and Alex. Gumming, for the appellant.

      Charles J. JBissell, for tlie respondent Francis G. Hall,
    Reynolds, Stcmehfield c& Collin, for the respondents William S. Carr et al., executors, etc., and Samuel C. Taber, as assignee, etc.
   Martin, J.:

The purpose of this action was twofold : 1. To set aside a general assignment for the benefit of creditors made by the defendant Francis G. Hall to the defendant Taber; and, 2. To set aside certain deeds, assignments, bills of sale and other transfers and conveyances made by the defendant Francis G. Hall to the defendant Samuel S. Hamlin. The ground upon which the plaintiff sought to set aside the general assignment' and the other conveyances mentioned, was that they were made with an intent to hinder, delay and defraud the creditors of the defendant Hall.

On August 21, 1884, the plaintiff’s assignor recovered a judgment against the defendant Hall for $1,050.21. An execution was issued thereon which ivas returned wholly unsatisfied. Subsequently, and in March, 1889, the judgment, which was the basis of this action, was duly assigned to the plaintiff.

For several years prior to July 21, 1884, the defendant Hall was engaged in business as a private banker at the city of Elmira. On that day he suspended payment at his bank and closed the doors, claiming that he was unable to continue business and meet his obligations. At that time he was the owner of a large amount of valuable real and personal property, and was indebted to a large number of persons in an amount which exceeded the value of such property.

After his suspension the depositors and other creditors of the defendant Hall called upon him for a settlement of their claims. He made a list of his property, and placed an estimate of value opposite each piece, which he showed his creditors as a true list and a correct statement of their value. The list did not specify all his property, and the values were exaggerated. In his negotiations with the creditors he offered them the property mentioned in the list at the prices designated, in payment of their claims, and-to some of them stated that he had no other property, and could pay in no other way; and that if they would not take the property at the prices, they would get nothing, and would get nothing if they sued.

Between the twenty-first of July and the first of August he compromised with some of his creditors by transferring to them a portion of his property at excessive prices, and thus paid and extinguished about $85,000 of his indebtedness. These transfers were made and received in good faith, without any intent to hinder, delay or defraud his creditors. Among the creditors of the defendant Hall were Samuel S. Hamlin and Betsey P. Hall. The latter transferred to the former 'all her claims against the defendant Hall on ■July 24, 1884. Between the twenty-first of July and the first of August the defendant Hall transferred to the defendant Iiamlin the real estate and property mentioned in the complaint. These transfers were in, form absolute, but were made and accepted upon the agreement between the defendants Hall and Hamlin that the latter should accept them as collateral security for the indebtedness of Hall to him, and that he should be responsible only for what he received out of the property so transferred. The defendant Hall was indebted to Iiamlin at that time in a sum exceeding $60,000.

After these transfers were made, and on the 1st of August, 1884, the defendant Hall made a general assignment to the defendant Taber of all his property, not exempt by law, for the benefit of his creditors. The assignment contained no preferences except as to the wages and salaries of his employees.

The defendant Taber accepted the trust under such assignment, qualified as such assignee, took possession of the estate and entered upon the discharge of his duties, and continued to act as such assignee until the commencement of this action. The defendant Hall having omitted to make and file any inventory or schedule of the assigned estate, one was made and filed by the assignee. By inadvertence or mistake on the part of the assignee, and without fraud or fraudulent intent, the inventory or schedules were defective in omitting therefrom the property transferred by the -defendant Hall to Iiamlin and others as collateral security.

The foregoing, briefly stated, are the facts found by the referee. He also found that the general assignment for the benefit of creditors and the transfers and conveyances made to the defendant Hamlin were made and accepted in good faith, and without any intent to hinder, delay or defraud the creditors of the defendant Hall, and held that the defendants were entitled to a judgment dismissing the plaintiff’s complaint with costs, and. directed judgment accordingly.

The important issues in this case were whether the general assignment made by Hall, and the transfei’s and conveyances made to Hamlin as collateral security for the debts held by him against Hall, were made with an intent to hinder, delay or defraud his creditors.

We deem it unnecessary to state in detail all the various acts, circumstances and transactions which are relied upon by the appellant as evidence that the assignment and transfers in question were made with a fraudulent intent. The evidence disclosed a variety of circumstances and many transactions from which, if unexplained, an inference of fraud might perhaps have been drawn. The defendants have, however, introduced evidence which has explained the circumstances and transactions thus relied upon, in a manner which, if believed, would show that the purpose-of the transfers in question was an honest one, and that they were made in good faith.

While the evidence shows that Hall transferred to Hamlin a large amount of real and personal property,'yet it also discloses that he was largely indebted to Hamlin. These transfers were as security only, so that if the property transferred exceeded in value the amount of Hamlin’s debt, the creditors of Hall would have the benefit of any surplus there might be. It was at least natural that Hall should have secured his indebtedness to Hamlin, who was a relative, and had been his friend from his youth up, and advanced to him these large sums of money. If his purpose in making these transfers was an honest one, and it was intended thereby to secure the debts owing Hamlin, and that was its only purpose, he had a right to thus secure him, and the transaction was valid. (Citizens’ Bank v. Williams, 128 N. Y. 77; Williams v. Whedon, 109 id. 333 337; Remington Paper Co. v. O’Dougherty, 36 Hun, 79; affd., 99 N. Y. 673; Knapp v. McGowan, 96 id. 75, 86; Dorr v. Beck, 76 Hun, 540; Sumner v. Skinner, 80 id. 201; Murphy v. Briggs, 89 N. Y. 446, 452.)

The fact that Hall agreed to take charge of the property and to manage it for Hamlin w*as perhaps a circumstance to be considered by the referee in determining the question of fraudulent intent. But when it is remembered tf'at Hamlin was an old man, who was infirm, unabie to assume the care and labor incident to looking after this large property, and that Hall had previously acted for him in the transaction of his business, it seems but natural that it should have been agreed between them that Hall should look after it for him. "With this explanation, the potency of that circumstance as an evidence of fraudulent intent is very much diminished, if not substantially overcome.

Again, it is contended that the amount of the property transferred was large. This is true, but the debts it was given to secure were also large. The property transferred was. not so greatly in excess of the debts to be secured as to constitute a circumstance of much weight bearing upon the question of fraud. Indeed, the referee has found that the value of the property transferred was in fact less than the amount of the debts owing by Hall to Hamlin.

Moreover, if the general assignment was valid, this action, under the allegations of the complaint, could not be maintained by the plaintiff to set aside the transfers and conveyances made to Hamlin. Under such circumstances, the action could only be maintained by the assignee, as the right to assail those conveyances on the ground of fraud was vested in him alone. (Spring v. Short, 90 N. Y. 538; Crouse v. Frothingham, 97 id. 105, 113; Loos v. Wilkinson, 110 id. 195, 209; Prentiss v. Bowden, 145 id. 342.)

When we consider the question of the validity of the general assignment, we find that the evidence renders it quite clear that, at the time of his suspension, the defendant Hall did not intend to make a general assignment for the benefit of his creditors, but believed that he could adjust his debts by distributing among his creditors all the property owned by him at excessive prices, and that he could borrow sufficient money to pay the remainder after his property had been so distributed. This course was industriously and effectively pursued by him until his creditors, by attachments issued and threatened, rendered an assignment practically necessary.

.But it is said that when the inventory was filed, the property transferred to Hamlin as collateral security and property transferred to some of his other creditors as collateral and some other small items of property were omitted from the schedule, and, hence, the referee should have found that the general assignment was made with an intent to hinder, delay and defraud his creditors. The evidence discloses that the schedules were made by the assignee and not by the assignor. It is true, however, that he was consulted in regard to making them. We do not think the act of the assignee in making the schedules in any way reflects upon the act of the defendant Hall in making the assignment. (Denton v. Merrill, 43 Hun, 224, 232.) The question here was as to the intent' of the defendant Hall at the time the assignment was made. If his purpose was honest, the instrument was valid. (Hardmann v. Bowen, 39 N. Y. 200.) But the subsequent acts of the assignor were admissible to reflect light upon the original intent. (Shultz v. Hoagland, 85 N. Y. 464.) The most, therefore, that can be said in this case is that the omission of the assignor to correct the schedules made by the assignee, by inserting therein the property omitted, was a circumstance to he taken into consideration by the referee in determining the intent with which the assignment was made. If, as the referee found, the omission was not an intentional one, but was the result of forgetfulness or oversight on the part of the assignor, or if he supposed it unnecessary, then little weight was to be given to such omission, especially as all the facts relating to that property were known to the public, and had been testified to by Hall when examined under the Assignment Act, so that the actual situation must have been known to his creditors. As was said by Finch, J., in the /Shultz case: “ It would be hard to find any schedules absolutely perfect, or any debtor who could inventory every item of his property with strict accuracy. Boom must be allowed for honest mistake, and possibly even for careless and thoughtless error.” (See, also, Peyser v. Myers, 135 N. Y. 599, and Roberts & Co. v. Buckley, 145 id. 215.)

It is also said that the transfers of property to pay a portion of his creditors, and of other portions of his property to secure other of his creditors, including the defendant Hamlin, his wife, his brother, the Chemung Canal Bank and Charles J. Langdon, were evidence that the assignment was made with an intent to defraud his creditors. Each of these transfers was a circumstance to be considered by the referee in determining this question of intent, and yet, when it is found that in each of those cases the defendant Hall was in fact indebted to the creditors secured, and that the property transferred as collateral for such debt was not greatly disproportionate to the debt sought to be secured, the referee might well have been led to the conclusion that those circumstances were ' entitled to but little weight in determining the question of the intent with which such general assignment was made.

The apipellant also contends that the exhibition by Hall of án incorrect list of his assets, his representations concerning it, and his threats to creditors, were evidence of an intent to defraud his creditors by the assignment which was subsequently made. It may be assumed, we think, that this was a circumstance which the learned referee was authorized to consider in determining that question, but it was neither controlling nor conclusive evidence of fraud.

Upon all the evidence in the case the referee has found that the general assignment made by the defendant ITall, and the transfers by him to the defendant Hamlin, were made in good faith for a valuable consideration, and without any intent to hinder, delay or defraud the creditors of the defendant Hall.

A patient and careful examination of the great volume of evidence contained in the appeal boobs in this case has led us to the conclusion that these findings of the referee are sustained by the evidence. The evidence in the case was conflicting, and it is quite possible that different inferences might have been drawn and different conclusions reached from the testimony of the witnesses and the transactions and circumstances developed by the evidence. This was clearly a case where the questions at issue were of fact for the referee, and the findings were not so plainly against the weight of evidence, nor did the proof so clearly preponderate in favor of a contrary result that it can be said with reasonable certainty that the referee erred in his conclusion. Where a review of the facts by an appellate tribunal is proper it is under no obligation to arbitrarily adopt the conclusions of the trial court; yet, great consideration will be accorded to its opinions, especially where there is evidence on both sides, and the mind of the court has been called upon to weigh conflicting statements and inferences, and to decide upon the credibility of opposing witnesses. In reviewing the determination of a trial court in such a case, the appellate court is not warranted in reversing upon the sole ground that, in its opinion, the trial court should have readied a different conclusion. To justify such a course, it should appear that the findings of the trial court were against the weight of evidence, or the proof so clearly preponderated in favor of a contrary result that it can be said with reasonable certainty that the trial court erred in its conclusion. (Westerlo v. De Witt, 36 N. Y. 340 ; Crane v. Baudouine, 55 id. 256 ; Sherwood v. Hauser, 94 id. 626 ; Baird v. Mayor, etc., of City of N. Y., 96 id. 567 ; Lowery v. Erskine, 113 id. 52 ; Devlin v. The Greenwich Savings Bank, 125 id. 756 ; Barnard v. Gantz, 140 id. 249.)

We are of the opinion that under the doctrine of the authorities cited the findings of the referee should be upheld.

The appellant, however, contends that a former judgment in an action in which John P. Purtell and another were plaintiffs and Francis G. Hall and Samuel G. Taber were defendants, was a bar or conclusive evidence against the defendants Hall and Taber. That action was brought by the plaintiffs therein against the defendants for the sole purpose of setting aside the general assignment of Hall to the defendant Taber. The judgment adjudged the assignment to be fraudulent and void, and set it aside only as against the plaintiffs in that action. That action was by the plaintiffs therein alone, and not in behalf of other creditors. The plaintiff in this action was not a party to that action nor a privy of the plaintiff therein, and, hence, was in no way bound by the judgment. Indeed, he wras not a creditor of Hall until March, 1889, when he purchased the judgment upon which he bases his right to maintain this action. We think the judgment in that action was not an estoppel or conclusive evidence against either of the defendants in this action, and the referee properly so held. (Shipman v. Rollins, 98 N. Y. 311, 330; Moore v. City of Albany, Id. 396, 409; Masten v. Olcott, 101 id. 152, 160 ; Quinby v. Carhart, 133 id. 579.)

While an examination of the recpiests to find proffered by the plaintiff and those j>roffered by the defendants shows that in some instances the learned referee has made findings upon such requests that are perhaps somewhat inconsistent, still, we find nothing in those findings which materially affects the questions at issue in the case, and, therefore, furnish no reason to disturb the judgment.

We have examined the various rulings to which our attention has been called by the appellant, but have discovered no error in them that would justify a reversal Nor do we deem it necessary to discuss them further than to say that each of the rulings has been carefully examined and considered by us.

We are of the opinion that the findings of the referee in this case are fully sustained by the evidence; that no exceptions were taken which would justify a reversal, and that the judgment herein should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs.