author: Mayiiam, J.: .Learned, P. J.:

text:
    JOHN M. BARNETT, Respondent, v. ASAHEL R. WING and Another, as Executors of EDWIN B. NASH, Deceased, Appellants.

      Oral promise that if one would indorse a note the promisor would pay it — it does not cover renewal notes similarly indorsed.

      One Edwin B. Nash verbally promised one Barnett that if he would indorse for Nash's son an accommodation note, if his son did not pay it he, the said Edwin B. Nash, would do so. Such a note was executed, and was indorsed by Barnett in reliance upon this promise. Payments were made upon such note and the note was several times renewed, Barnett in each case indorsing the renewal note.
    In an action brought by him against the executors of Edwin B. Nash, who had died, to recover what he was compelled to pay upon the last renewal note:

      Held, that the promise was not in the nature of a continuing guaranty, applicable to the renewals of the original note, but was a promise to pay only the original note.
    The question as to whether this case came within the statute requiring a promisee to answer for the debt of another to be in writing, considered by Mayham, J.
    Appeal by tlie defendants, Asaliel R. Wing and Edwin N. Sanderson, as executors of Edwin B. Nash, from a judgment, entered, upon tlie report of a referee, in the office of the clerk of Washington county on the 31st day of March, 1891, in favor of the plaintiff for $764.22 damages, besides costs.
    The action was prosecuted by the plaintiff to recover upon an alleged parol agreement by defendants’ testator, that, if plaintiff would indorse a note for $1,500 for Melvin A. Nash, and Melvin A. did not pay it, lie, the testator, would. The note was solely for the benefit of the maker, Melvin A. Nash. At maturity it was renewed, the plaintiff indorsing the renewal note, on which., at maturity, the maker paid $500, and the note of the maker, indorsed by the plaintiff, was given for the unpaid balance. Other notes were given, on which the maker made small payments. The maker on the last renewal note paid. $280.73 when due, and the plaintiff paid the balance. ■
    The defendant’s testator having died, the plaintiff brought this action against the defendants to recover the amount so paid by him.

      Edgar Hull and G. A. Sturges, for the appellants.

      Potter c& Little, for the respondent.
   Mayiiam, J.:

The referee found as facts the making of the note by Melvin A. Nash, indorsed by the plaintiff, and that, before the indorsement, Edwin B. Nash requested the plaintiff to indorse the note, promising him that if he would do so, he, Edwin, would pay the same when due if Melvin did not; that he would indemnify and hold the plaintiff unharmed on account thereof; and that relying on said promise plaintiff did then indorse said note.

The appellants insist that this finding is not supported by the evidence. The only evidence in support of this finding is found in the testimony of Melvin A. Nash, and his testimony upon that subject is as follows: I had a conversation with my father, Edwin B. Nash, at or about the date of the original note, a few days after. He told me had asked Mr. Barnett to sign a note for me, or he wouldn’t have done it. He. said he asked Mr. Barnett to sign the note, and if I didn’t pay it he would, or Barnett wouldn’t have signed it.”

It is insisted by the appellants that this language does not, upon the most favorable construction or interpretation of it for the plaintiff, prove a promise by the testator to guarantee or indemnify the plaintiff or keep him unharmed by signing or indorsing this note, and I am quite inclined to agree with that contention. It would certainly require a forced and unnatural construction of these words to give them the force of a contract or guaranty or indemnity against the legal consequence of signing or indorsing this note. The most that would fairly he claimed for the language used was an agreement of the decedent to pay this note if the maker failed to do so.

There was nothing in the language to justify the conclusion that the testator intended to pay any other or future notes made by Melvin A. Nash, and indorsed by the plaintiff, upon the failure of the maker to pay, and if it could be held that an agreement by the testator to pay that note, if not paid by the maker, was in the nature of a guaranty that the indorser would not be called' on to pay that note, still such a guaranty could not be made to extend to other and subsequent notes made by Melvin, and indorsed by the plaintiff, to which no reference was made by the decedent. If, as matter of law, the statement of the deceased- proved to have been made, can be construed as evidence of a guaranty against the first note, still within the well-settled rules of construction of guaranties it could not be extended to other and subsequent notes not referred to in that statement or in existence at that time.

In the case of Ellenville National Bank v. Kaufmann et al. (93 N. Y., 281), the court says: But when the meaning of the language used in a guaranty is ascertained, the surety is entitled to the application of the strict rule-of construction, and cannot be held beyond the precise terms of the contract.”

Applying this rule, it is difficult to, see how the defendants’ testator can be held even by the most liberal interpretation of the words imputed to him, to have guaranteed the plaintiff against the consequence of his indorsement of these renewal notes. A guarantor has a right to prescribe the exact terms upon which lie will enter into the obligation, and insist upon his discharge in case those terms are not observed. (William Barns et al. v. John Barrow, 61 N. Y., 39.)

But it is further insisted, upon the part of the appellants, that in any aspect of this case the promise claimed to have been made by the defendants’ testator was but a parol collateral promise to answer for the debt, default or miseamage of another, and not being in writing and subscribed by him was void by the statute of frauds.

If this position is true, then the plaintiff could not recover in this action and the judgment should be reversed. It will be borne in mind that the only promise proved was that if Melvin A. Nash, the maker, did not pay the note, he, Edwin 13. Nash, would. Melvin A. Nash was the maker of the note and the principal debtor. James E. Barnett was the payee and the person to whom, or to whose order the. payment was to be made. Edwin B. Nash agreed with the payee that if Melvin A. did not pay the note he would. If, therefore, he was liable on that agreement, it was as the guarantor that Melvin A. would pay the note. If Melvin A. had paid the note, Edwin B’s obligation would have been discharged, and hence his agreement was collateral to the performance by Melvin A.

His was not an original agreement to pay this note in any event, but only in the event that Melvin A. did not pay it, and, therefore, collateral to the agreement of Melvin A. Collateral is defined by Webster as “security given in addition to the principal promise or bond.” In this case Melvin A. had, by his promissory note, agreed to pay this plaintiff, or to his order, $1,500. This was the principal promise and collateral to that promise, Edwin B. promised that if Melvin A. failed to perform, as he agreed to pay the note, he, Edwin B., would pay it. He was, therefore, the verbal guarantor of Melvin A.’s agreement in the note. A guarantor is one who agrees to see the engagement of another performed, and that is all that can be fairly claimed the plaintiff’s testator assumed to do in this case. Bouvier defines a guarantee as “an undertaking to answer for another’s liability and collateral thereto; a collateral undertaking to pay the debt of another in case he does not pay.” (1 Bouv. Die., 640.) In Gallagher v. Nichols (60 N. Y., 444), the Court of Appeals says: “A guarantee is defined by elementary writers to be a promise to answer for the payment of some debt or the performance of some duty in case of the failure of another person who, in the first instance, is liable for such payment or performance.” (Citing 3 Kent’s Com., 121.)

If this were a legal guarantee of the payment of this note by the maker, it would have passed on the indorsement of the note to the bank, and would have been enforceable by it. (Everson v. Geere et al., 122 N. Y., 290.) But if we are right in our conclusion that it was only a'parol collateral promise by Edwin B. Nash to answer for the debt or default of Melvin A. Nash, it comes clearly within the definition of a contract void by the statute of frauds.

The respondent insists that as between Barnett, to whom it is alleged the promise was made, and Edwin B. Nash, by whom it was made, it is not a collateral, but a direct promise, and that there was. a sufficient consideration of harm to the promisee to take it out of the operation of the statute. In support of this theory the respondent cites Mallory v. Gillett (21 N. Y., 412); Tighe v. Morrison (116 id., 263); Leonard v. Vredenburgh (8 Johns., 29); Chapin v. Merrill (4 Wend., 657); Emerson v. Slater (22 How. [U. S], 28); MoGreary v. Van Hook (35 Texas, 631); and Tisdale v. Morgan (7 Hun, 583).

In Mallory v. Gillett (supra), the plaintiff was in possession of a boat on which he had a lien for repairs, and the defendant promised by parol that if the plaintiff would surrender the boat to the -owner he would pay the charges, some of which he paid at the time, it. was held to be an original and not a collateral promise, and not within the statute; and the reason for it seems to be that, though the debtor of another may have been the original cause of the promise, yet if the person to whom it is made relinquishes some right or advantage which he possess ess which might have enabled him to obtain satisfaction of his debt, the promise of a third person to pay the debt in consideration of such relinquishment is an original, and not a collateral, promise. No such reason exists in the case at bar, and the cases are, therefore, clearly distinguishable upon principle. In Tighe v. Morrison (116 N. Y., 263), the defendant applied to the plaintiff to sign an administrator’s bond, claiming that he had an interest in the estate and that it was indebted to him, and upon his oral guarantee to save the plaintiff from loss he executed the bond. The principal in the bond defaulted and plaintiff suffered loss. In an action on this guaranty it was held that the case was not within the statute, that the promise was an original one, and legally beneficial to the defendant only; and the court lays down, what seems to be the real distinction between a collateral and original undertaking, and holds that to bring a promise within the statute it must be made to persons entitled to enforce the liability assumed by the promisor. In this case the court says: “ In order to attain a position which he represented would be of pecuniary value to himseif, the defendant promised to indemnify the plaintiff against the consequences of an act necessary to enable him to enjoy said position. One of those consequences was his own possible default.” * * *"

Within, all these authorities the promise was clearly an original one, and. the court adds: “ Moreover, the rule seems well settled that a promise not made to the person entitled to enforce the liability assumed by the promisor is not within the statute.” In the case at bar the pi'omise was made to the payee of the note, the one primarily ■entitled to enforce the liability. The note was payable to him or order. Without stopping to denote the distinguishing features of the case at bar from those cited and relied upon by the learned ■counsel for the respondent, we think them all distinguishable upon principle. In Kingsley v. Balcome (4 Barb., 138) the court, in dis•cussing this statute, says: “ The true rule is that the ‘ new original ■consideration? spoken of must be such as to shift the actual indebtedness to the new promisor, so that, as between him and the original debtor, he must be bound to pay the debt as his own, the latter standing to him in the relation of surety.” [Farley v. Cleveland, 4 Cow., 432; Barker v. Bucklin, 2 Denio, 45 ; Baker v. Dillman, 21 How., 444; Carville v. Crane, 5 Hill, 483.)

Upon the facts in this case we are clearly of the opinion that the promise proved is capable of being construed into an agreement to indemnify the plaintiff against his indorsement of this note; was within the statute of frauds, and, therefore, void. If right in this conclusion, it is unnecessary to discuss the other points raised by the appellant on this appeal.

The judgment should be reversed.

.Learned, P. J.:

The referee finds that the testator, Edwin B. Nash, verbally requested plaintiff to indorse an accommodation note of Melvin A. Nash, in order to have it discounted at the bank, and promised him ■that if Melvin A. failed to pay, he would pay, and would hold plaintiff harmless; that relying upon that promise, plaintiff, on the 16th day of May, 1888, indorsed a note of Melvin A. for $1,500. 'That this note was not paid, but was renewed several times in the ■same form. On the trial the plaintiff called Melvin A. as a witness, .and then executed and delivered to him a general release, which ¡specially released Melvin A. from any liability on account of joying the note or the existing renewal thereof.

Without discussing the validity of the indemnity, I am of the ■opinion that Edwin B. was discharged by the renewals. If, as ■plaintiff claims, the testator’s liability became fixed when the first note became payable, still the plaintiff extended the time by making .a new note. After he had done this, if Edwin B. had paid the plaintiff, he could not have sued Melvin A. until the new note became payable. Melvin, A. had then taken up the original note and was no longer liable thereon. Edwin B. had agreed to indemnify plaintiff for indorsing the first ncrte, not for indorsing numerous Tenewals thereof. He might be willing to take the risk, that Melvin A. would pay the first note, which came due August, 1888; but not that he, would pay or would be liable to pay a note which ■came-due in March, 1890.

Furthermore, I think that by releasing, in open court, Melvin A. from all liability on the original note, and on the existing renewals thereof, the plaintiff discharged the testator’s estate. Melvin A. was the principal debtor, and a release of the principal debtor is a discharge of the surety or guarantor. There was no longer anything to guaranty. This defense could not have been pleaded; the act took place on the trial.

For these reasons, I con cur -in the result of my Brother Mayham’s opinion.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


source: Caselaw Access Project

author: Mayham, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES M. WOOD, Appellant.

      Hoards of health — determination as to a nuisance — notice to the owner — cibate'ment of a nuisance.

    It is provided by section 4 of chapter 270 of the Laws of 1885, that every person who shall willfully violate or refuse to obey any order or regulation of a board of health, or any order made by it, shall he guilty of a misdemeanor.
    A city hoard of health, without notice to the alleged owner of certain premises, made an order which, in effect, determined him to be the owner thereof, and that a nuisance existed upon his premises and required him to remove it.

      Held, that the order affected a substantial right of the owner, and that the board of health had no power to conclude him thereby without notice.

      That the owner’s refusal to obey such an order was not a misdemeanor within section 4 of the act of 1855.
    That the power given to the board by subdivision 4 of section 8 of said act, to receive and examine into the nature of complaints made by inhabitants concerning nuisances, impliedty required said board to give a reasonable notice to the person complained of, to the end that he might be heard in his own behalf. Semble, that the owner could not in an inferior criminal court, where he was prosecuted for a misdemeanor, bring up for review the order and determination of said board.
    A board of health may, under section 4 of said act, enter upon premises of its own motion, abate a nuisance and charge the owner by action with the expense; but this power should be exercised only in extreme cases and after a party has had an opportunity to be heard.
    Appeal by the defendant James M. Wood from a judgment and order of the Court of Sessions of Fqlton county, entered in tlie clerk’s office of said county on the 27th day of June, 1891, affirming a judgment of conviction and sentence of the Recorder’s Court of the city of Gloversville, rendered against him, by which he was convicted of a willful violation of an order of the board of health of the city of Gloversville and sentenced to pay a fine of forty dollars, and in default thereof to be imprisoned in the jail of Fulton county until said fine should be paid, not to exceed forty days.
    W. S. Aníbal, for the appellant.

      William Oreen, for the respondent.
   Mayham, J.:

The board of health of Gloversville made an order of which the following is a copy:

“To J. M. Wood :

“You will please take notice that upon examination it has been found that a nuisance and source of danger to life and health exists upon the premises described, as follows: On Church street, occupied by Mrs. Lent and Mr. Lloughtaling and owned by you, which nuisance and source of danger consists of a privy which needs cleaning. And you are required forthwith to remove and suppress such nuisance and source of danger, and cause said premises to be thoroughly cleansed.

“ In default thereof you will be liable to a penalty of $25, and for a willful violation of the regulations of this board, you will be guilty of misdemeanor, and liable to a fine not exceeding $1,000 or imprisonment not exceeding six months, or both such fine and imprisonment.

“ By order of the Board.

‘A. SIMMONS, Fres”

The ease discloses that this order was served on the defendant on the 19th day of July, 1880, but that the defendant had no notice of the meeting of the board of health at which the order was made. On the 22d day of July, 1890, the clerk of the board of health made an information in writing; and under oath, reciting the above action of the board of health, and that the defendant willfully violated and disobeyed such order, and prayed for a warrant to apprehend the defendant, and presented such information to the recorder of the city of Gloversville, who issued his warrant, under which the defendant was arrested and brought before the recorder. On being brought before the recorder the complaint was read to the defendant, who pleaded not guilty, and on motion of the complainant the case was adjourned.

On the adjourned day the people appeared by an attorney, and the defendant in person, and the prosecution put in evidence the •order of the board of health, above set out, and proof of service of the same on the defendant, also proof tending to show that the tenants in possession of the premises on which the alleged nuisance existed rented the same of the defendant, also proof by a member of the board of health that he had examined the premises and that the alleged nuisance had been removed before the time of the issuing ■of the warrant.

The defendant testified in his own behalf, in substance, that he was not the owner of the premises on which the alleged nuisance existed and was not the agent of the owner of the same, that the premises belonged to Joseph E. Wood, but that after the order of the board of health had been served on him he made an effort to procure some person to clean the premises.

The recorder found the defendant guilty and made the following -order: “ It is adjudged that such defendant is guilty, and that he pay a fine of $10 and in default of payment thereof be imprisoned in Fulton county jail until paid, not to exceed forty days.” And thereupon the recorder entered judgment of conviction in accordance with that order. From that judgment the defendant appealed to the Court, of Sessions of Fulton county where the conviction was affirmed,, and the defendant appeals to this court.

The principal question urged on this appeal as a ground for the-reversal of the judgment of the Court of Sessions affirming the conviction by the recorder is,, that no notice of the meeting of the board of health to pass upon the existence of this alleged nuisance, or the-liability of the defendant for its existence, or for the removal or abatement of the same, was given to the defendant, and that the-order of the board of health affected a substantial right of the defendant and that the board had no jurisdiction to bind him by such an order without notice.

Enough is disclosed in the record to show that the board acted without notice to the defendant, and that the defendant had no-notice of the action of the board until after the order hereinbeforerecited was made. But it is insisted on the part of the respondent that the board of health has power to proceed ex parte, and without notice, to determine the existence of a nuisance and order it abated and that a refusal or neglect of the person to obey that order, after its service upon him, is such a willful refusal as to make him guilty of a misdemeanor within the provisions of section 4 of chapter 270 of the Laws of 1885. Subdivision 4 of section 3 of this act authorizes the board of health to receive and examine into the nature of' complaints made by any of the inhabitants concerning nuisances, and provides that it shall furnish the owners, agents or occupants a written statement of the result or conclusion of such examination, and that it shall be its duty to order the suppression and removal of nuisances and conditions detrimental to life or health found to exist, within the limits of its jurisdiction.

Subdivision 6 of said section provides, among other things, that such board may make “ without publication thereof such orders and regulations, in special or individual cases, not of general application, as-they may see fit concerning the suppression and removal of nuisances * * * and serve copies thereof upon any occupant or occupants, and the owner or owners of any premises whereon any nuisances or other matters aforesaid shall exist, or to post the same in some conspicuous place on such premises.”

Section 4 of the act of 1885 provides that: “Every person who shall willfully violate or refuse to obey any order or regulation made? and published by the board of health, of any city, village or town in this State, or any order made and served or posted, as aforesaid, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be subject to fine or imprisonment, or both, in the discretion of the court, such fine not to exceed one thousand dollars, nor suck imprisonment six months.”

The order of the board of health, in the case under consideration, assumed to determine that the defendant was the owner of the premises, and that, as such owner, he permitted the existence of a nuisance on the same, detrimental to the public health, and upon that assumption commanded him to abate the same, or, in default thereof, to subject himself to heavy pecuniary forfeiture and a criminal prosecution involving his personal liberty.

It is quite apparent that important property and personal rights were involved in this determination by the board of health, and it has been held that such determination is of a quasi judicial character. (People ex rel. The N. Y. C. and H. R. R. R. Co. v. The Board of Health of Seneca Falls, 58 Hun, 595.)

Can such judicial investigation arid determination be properly conducted without notice to the person whose property and liberty is put in jeopardy by it ? ^We think not. In People ex rel. Railroad Company v. Seneca Falls (58 Hun, 599), the court says: “ Though no-special provision is made in the act for notice to the offending party, yet the power given to the board by subdivision 4 of section .3 ‘ to receive and examine into the nature of complaints made by any of the inhabitants concerning nuisance,’ etc., requires, by necessary implication, the board to give a reasonable notice to the person against whom the maintenance of the nuisance is alleged, that complaint has been made or that such fact exists, so that he may be heard in his own behalf, and, if possible, refute the charge made against him. No proper inquiry leading to a final order affecting private rights can be made without hearing both sides ”

. In this case #ie board assumed to make a final order determining ' the existence of the nuisance, the ownership of the premises on which it existed, and the liability of the defendant to remove the same.

This order formed the basis' of the criminal action against the defendant, and the only question remaining for the Recorder’s Court to determine was whether the order had been willfully disobeyed by the defendant.

The Recorder’s Court was not an appellate court to review the action of the board, and it may be doubted whether the order could have been attacked collaterally in the trial court. It-would seem to follow that the act of the board of health in making this final order against the defendant ex pa/t'te, and without notice to him, was without jurisdiction and void. But it is urged that such a determination will paralyze the efficiency of the board of health, and ■expose the public to the ravages of pestilence, without ability on the part of these officers to remove the cause.

But the board of health may, of its own motion, and at the expense of the party maintaining it, abate a public nuisance, being, of course, accountable to the party injured for an abuse of that power.

Section i of the act above referred to provides that, in any case of non-compliance with any order or regulation which shall have been served or posted, as provided in subdivision 6 of section 3 of this act, the said board of health, or its servants or employees, may lawfully enter upon any premises to which said order or regulation relates, and suppress or remove the nuisance, or other matter, in the judgment of the said board, detrimental to the public health, mentioned in said order or regulation, and any other nuisance or matter of the description aforesaid found then existing.

The section further provides that the expense. incurred by the board for such removal shall be chargeable upon the occupant or occupants, or the person causing or creating such nuisance, and may be ■•sued for and recovered, with the cost of prosecuting the action, in the name of the board of health.

Thus the delay and danger to the public health may be obviated by the action of the hoard itself. ( Weil et al. v. Schultz et al., 33 How. Pr., 7; Rogers v. Barker, 31 Barb., 447.) But, from these cases, it seems that this power should he exercised only in extreme cases, and then only when a party charged has had an opportunity •.to be heard and fails to show cause why the nuisance should not be abated.

It would seem to follow that the action of the board of health in the case under consideration, without notice to the defendant, was unauthorized, and furnished no basis for the criminal proceedings instituted against him; and that his conviction by the recorder, based upon the order made by the board, without notice to the defendant, was erroneous, as was the judgment of the Court of Sessions affirming such conviction, and that the judgment of the Court of Sessions and that of the recorder should be reversed.

Learned, P. J., and Landon, J., concurred.

Judgment and conviction reversed.


author: Learned P. J.:

text:
    LYDIA A. GLAZIER, Respondent, v. THE TOWN OF HEBRON, Appellant.

      Negligence — defective highway — two proximate causes of an accident — its peculia/r nature is no defense — a town may be liable although the commissioner of highways is not.

    In an action brought against a town by one who was injured, as alleged, by reason of the defective condition of a highway, it appeared that the plaintiff was driving along a highway, which was seventeen feet wide and ran along a pond which was more than eight feet below it; that at the point in question there was no fence or guard between the highway and the pond; that the highway was deeply drifted with snow; that a sleigh, upon which were barrels of coal, driven by two boys, was approaching from the opposite direction; that it stopped; that the boys said they would be along in a minute; that the plaintiff waited; that as they reached her and turned out to pass-a barrel slid off their sleigh and frightened the plaintiff's horse, which hacked off the bank into the pond.

      Held, that as two proximate causes, the fright of the horse and the failure to furnish a fence, might be said to have contributed to the accident, the town, which was responsible for the latter, was liable.
    ’That as the court left it to the jury to say whether the plaintiff- acted as a person of ordinary prudence should have done, it was not error to refuse to charge that if the boys stopped outside of the road where it was safe to pass, and she saw it, it was her duty to have passed at that place.
    That whether it was the duty of the town to erect a guard at the point was properly submitted to the jury.
    That the fact that the accident was of a peculiar nature was not material.
    'That it was not error to decline to charge, in effect, that if the action could not have been maintained as against the commissioner of highways, it could not be as against the town.

      That since the passage of chapter 701, Laws of 1881, towns may be liable whether the commissioner of highways is or is not, e. g., when they neglect to repair-defects in highways, of which they know or should have known, and to repair which they have or can obtain the necessary funds.
    Appeal by the defendant, tbe Town of Hebron, from a judgment, entered in tbe office of tbe clerk of the county of Washington on the 14th day of July, 1890, upon a verdict for the plaintiff for $2,000, after a trial at the Washington County Circuit before the-court and a jury; and also from an order, entered in said clerk’s-office on the 22d day of May, 1890, denying a motion, made by the defendant on the minutes of the court, to set aside the verdict and for a new trial.

      Edgaw Hull, J. S. EAmoreaux, O. II. Sturges and I. H. Worthup,, for the appellant.

      J. M. Whitman and Hotter da LilTAe, tor the respondent.
   Learned P. J.:

A highway in Hebron runs for some eighteen rods by the southerly side of Need’s pond, and from the road there is a steep descent, to the pond. For much of the distance there are trees and shrubs, along the bank. On the twenty-fourth of March the plaintiff was-driving along this road, and had reached a place where, for about twelve feet, there were no trees along the bank. At this point she-saw, at a distance of some thirty feet, an approaching vehicle. It. consisted of two bob-sleighs with some boards laid across, on which were two barrels of coal, and it was drawn by one horse. Two boys-were in charge of it. ■ As she saw them they were at the horse’s-head arranging the harness. She stopped, and they said they would be along in a minute. She said “All right,” and waited for them. Just as the boys with their horse and sleigh reached the plaintiff- and turned out to pass, one of the barrels slid off against, or in front of, plaintiff’s horse. He became frightened and backed her cutter-down the bank, and she with the horse and cutter fell into the pond, breaking through the ice. The plaintiff was injured by the accident and the consequent exposure, and sues for damages.

There is some disagreement between her statement and that of the-boys. They say that they called to her to come on, while -they stood. But this is immaterial. The jury probably accepted her statement* and at any rate there is no proof that she did not exercise her best judgment as to the place where the two vehicles would pass.

The great snow storm called “ the blizzard ” occurred about ten days before. Since that the snow'had melted and frozen so that the snow or ice upon the roadway ‘was slanting. Thus, probably, it happened that, as the, boys turned out on the upper side, their sleigh tipped enough to cause the barrel to slide off. The plaintiff was on the northerly side of the road, that nearest to the pond. There was no fence or other protection on the side of the road -next to the pond. From the road-bed, which was about seventeen feet wide, there was a slope downwards of about eight feet, with a drop of about four feet, and from that a nearly vertical drop of about four feet to the water. It can readily be seen that as the plaintiff’s cutter was necessarily near to the edge of the bank, her horse in backing would, probably, soon get the rear of the cutter over the edge of the bank, and then the result which followed would be almost inevitable.

The first point urged bydefendant is, that the absence of a guard pr rail at the bank was not the proximate cause of the injury; that such cause was the falling of the baz-rel of coal.

The object of having a rail or guard put up at the side of a road in szzch a place is, of course, to prevent tz-avelers and vehicles fz-om falling down the bank. It is not siznply to indicate that there is a bank at the place. It is evident that when, in daylight, a person is driving a hoz-se, not disturbed by any exciting cazzse, along such a place, there is hardly any danger, even if there be zzo rail or barrier at the side. The rail then is especially to protect tz-avelez-s when some fright znakes a horse deviate frozn the ordinaz-y tz-ack, or wizen daz’kness prevents a traveler fz-om seeing, of when some zznexpected cause puts him in danger. Expez-iezzce has shown that unforeseen causes may expose the traveler to the danger of being thrown down such a bazzk. Hence it is proper to erect a barrier. And whether or zzot we call the cause which may produce such danger proximate, still that is the kind of danger against which those who have charge • of the road should guard by the meazzs above mentioned. The rail is put up becazzse it is known that such danger will occasionally happen. To ízeglect to pzzt it up is czzlpable.

Of course, all the surrounding circumstances contribute to produce any result under consideration. Hence it is not always easy to assert any one to be the sole cause. If the pond had not been there, the plaintiff would not have been wet. If she had stayed at home, she w'ould not have been hurt. If the horse had not been frightened, he probably would not have backed, and so on.

There is some conflict in the cases in different States on questions similar to the present. JBut it seems to us of little use to discuss them, when the highest court in our State has laid down a rule which must be controlling with us. In Sing v. Cohoes (77 N. Y., 83) the Court of Appeals, after referring to the decision of other States, say: “ When two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate, the one being a culpable neglect in the highway, and the other some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for such defect.” That language was applied to a case where the plaintiff’s horse became frightened, without his fault, and ran into a hydrant. There was also a pile of ashes which obstructed the street. The referee had found that both the ashes and the hydrant were culpable defects. The Court of Appeals held that the hydrant was not a defect, but that the ashes might have been. The two causes which the court spoke of as combining to jn’oduce the in jury were the fright of the horse and the defect in the street. These they spoke of as,“ in their nature, proximate. ” That case is quite analogous to the present. For here are the two causes, the fright of the horse and the defect in the highway, which may be called proximate; and it may be correctly said that these combined to produce the result.

The case of Lowery v. Western Union Telegraph Company (60 N. Y., 198), has no application. The question there was whether certain damages were too remote from the negligent act to enhance the recovery. Nothing of that kind arises here. If the defendant is liable for the negligence, there have not been any damages allowed which were not the immediate result of the action.

Nor is this a case where a new cause has intervened between the result and the alleged cause; as in the well-known case of the squib. (Scott v. Shepherd, 2 W. Black., 892.) In that case, however, though the principle was recognized, it was held not applicable.

It seems to us that- a remark of Mr. Justice Miller, in Insurance Company v. Tweed (74 U. S., [7 Wall.], 44), is very sound. After speaking of tlie numerous cases on proximate and remote causes, he says: “ If we could deduce from them the best possible expression of the rule, it would remain, after all, to decide each case largely upon the special facts belonging to it, and often upon the very nicest discrimination.” And so we think that this case must be decided. We are to inquire whether the defendant was negligent, and whether the plaintiff was careful, and then whether the accident which she suffered was the result of the defendant’s negligence.

It was left to the jury to say whether the plaintiff was negligent. The defendant asked the court to charge that if the boys stopped at a point outside of the path where it was safe for her to pass and she saw it, it was her duty to have passed at that place. But the court left that to the jury to be considered on the point whether she acted as a person of ordinary prudence would have done. This was correct. (Lent v. N. Y. C. and H. R. R. R. Co., 120 N. Y., 467.) The defendant cites Ryan v. Manhattan Railway Company (121 N. Y., 126). The point there decided was that the court should have charged, under the proof, that, if the space between cars and platforms was not more than eight inches, defendants were not negligent. That was not a question of contributory negligence, but a question whether, under the proof, eight inches could be held to be proper. The point in this case is very different. A traveler, seeing another approaching on a road drifted with snow, has to exercise his judgment as to the best place for passing. All that he is required to do is to act as a prudent man would do. A misjudgment is not negligence. Nor is there any evidence here that the plaintiff did not judge wisely.

Certainly the plaintiff was not responsible for the fright of the horse. She did not anticipate that the barrel of coal would slide off. And the whole question of her alleged contributory negligence was properly left to the jury.

The defendant further urges that it was not bound to erect a barrier at this point. The court submitted to the jury the question whether the road at this point was dangerous, and whether a person of ordinary prudence would have considered it dangerous. The verdict of the jury on this point must stand, unless it can be said, as matter of law, that it was not the duty of the town to guard the p>lace. The defendant cites Hubbell v. Yonkers (104 N. Y., 434). There the street was thirty feet wide, macadamized, and in good ■condition. There was a sidewalk on the west side ten feet wide, with a curb-stone eight inches high. On the west side of that sidewalk there was an embankment twelve feet deep with no railing. The Court of Appeals held that there was no lack of care in not fencing the embankment. The width of the road and the sidewalk, with its curb-stone, were held to be a sufficient protection. But the ■court is careful to distinguish this from the cases of a road passing .along a precipice. “Those are cases where the roadway itself runs along such a place, and danger from the want of a railing was naturally to be apprehended.” In the present case the road was .seventeen feet nine inches wide. The plaintiff had to turn out towards the pond in order to pass the other vehicle. The beaten road was not then more than three feet from the edge of the bank. It might, therefore, well be submitted to the jury to say whether danger from the want of a railing was not to be apprehended; and .as a railing could be built for seventeen dollars the negligence of defendant was still more apparent.

The defendant urges that the accident was one of a class so rare, unexpected and unforeseen that the defendant could not be charged with negligence. The particular cause by which this horse was frightened may have been unexpected. But it is not rare or unexpected that horses shy, or are frightened, from some cause. And because this kind of event is not unexpected, such places as the one where plaintiff was injured should be protected.

One Getty had been commissioner of highways for three years prior to March 6, 1888. On that day "Wilson was elected. Plaintiff’s .accident happened the twenty-fourth of that month. The defendant asked the court to charge that if the action cannot be maintained against the commissioner in office on the twenty-fourth of March, it cannot be maintained against the defendant. The court refused. The meaning of the request is probably that if the action could not, as the law was prior to chapter 700, Laws of 1881, have been maintained against the commissioner, it cannot be maintained against the (•defendant.

Section 1 of that chapter is as follows: “ The several towns in -this State shall be liable to any person suffering the same for all damages to person or property by reason of defective highways' or bridges in such" town, in cases in which the commissioner or commissioners of highways of said towns are now liable therefor, instead of such commissioner or commissioners of highways.” It will be seen by this last clause that the liability of the towns is substituted for that of the commissioners, and is not additional. Section 3 is important in construing this act. “ If the defect in such highway or bridge shall have been caused by the misconduct or neglect of the commissioner or commissioners of highways of the town in which the same may be situated, then, and in such case, the town against which any judgment shall have been recovered by reason of such defective highway or bridge, may bring an action against such delinquent commissioner or commissioners of highways and recover the amount of such judgment.” If a judgment is recovered against a town, then there must have been not only a defect, but also negligence in some one. And this section implies that there may be cases in which the defect is not caused by the misconduct or neglect of the commissioner, and, yet, in .which the town may be liable. For it says: “If the defect shall have been caused,” etc., thus indicating that there may he cases where judgment may be recovered against the town for its own neglect. Turning, then, to the first section we see that towns are. liable in cases in which the commissioners were liable before. Those cases were when they neglected to make repairs of defects which they ought to have known, and for which they had or could obtain the necessary means. These, then, are the cases in which towns are liable; that is when they neglect to make repairs of defects which they know, or ought to have known, and for which they have or can obtain the necessary means. If the neglect is that of the commissioner, he is liable to the town; if it is the neglect of the town, he is not.

As to the matter of knowledge, the knowledge of the former commissioner must be treated as the knowledge of the town. The failure to provide necessary funds may be the neglect of the town. (Ivory v. Deerpark, 116 N. Y., 176.) This statute, to a considerable extent, has placed towns in this respect in the position of villages and cities. We think there was no error in refusing to charge as requested.

If the town, by withholding funds from the commissioner, can free tbe commissioner from liability and. can then escape liability itself, because the commissioner was blameless, the statute has left the injured traveler remediless.

An exception was taken to what was said to Getty, the commissioner, about the condition of the road. That was proper as tending to show notice.

There was no error in the admission of the photograph of the place, although it was taken subsequently and after a fence had been erected. The court stated that any subsequent change was no evidence of negligence.

The judgment and order are affirmed, with costs.

Landon and Mayham, JJ., concurred.

Judgment and order affirmed, with costs.


author: Learned, P. J.:

text:
    STELLA STAFFORD, Appellant, v. WALTER MERRILL as General Assignee for the Benefit of the Creditors of EDGAR H. STAFFORD and Others, Respondents.

      Assignments for (/¡’editors — a preference for services to be rendered is frcmdulent in law — cha/rge offrcmd not neaessa/ry — dismissal of the complaint upon the opening.

    In an action brought by a judgment-creditor of Edgar H. Stafford to set aside a general assignment executed by Stafford to one Merrill, and also a judgment confessed, and certain chattel mortgages made by him, upon the ground that these instruments were all parts of a general scheme to give illegal preferences, the complaint, after setting out these transactions at length, alleged that in said assignment one Ross was preferred in the sum of fifty dollars; that said Stafford was not indebted to him in any sum whatever, and that this amount was to be paid him for services to be rendered in managing the estate after the assignment. There was no allegation that the several acts complained of were done with intent to hinder, delay and defraud creditors.
    Upon the trial the plaintiff conceded that none of the parties intended any fraud, and thereupon the complaint was dismissed upon the ground that no fraud was charged.

      Held, error.
    That Stafford could not lawfully prefer Ross for services to be rendered to the assigned estate subsequent to the assignment.
    That such an act was fraudulent as matter of law, and that, as the matter was presented in much the same way as by a demurrer, the court must take judicial notice of this fraudulent provision in the'assignment, even though the complaint did not charge fraud, and although, the plaintiff’s counsel conceded that none was intended.
    Appeal by tbe plaintiff Stella Stafford from a judgment of the Supreme Court, entered in the office of the clerk of Essex county on the 5th day of June, 1891, dismissing the complaint, with costs, after a trial at the Essex Special Term.

      Alexander Thain, for the appellant.-

      Waldo <& MeLaughlim, and Richard L. Hand, for the respondents.
   Learned, P. J.:

This action was brought by a judgment-creditor of Edgar H. Stafford to set aside confessions of judgment, chattel mortgages and a general assignment, which was made to defendant Merrill, on the ground that these were part of a general scheme to illegally prefer creditors in contravention of the statute.

The complaint sets forth the recovery of judgment and issue and return of execution by plaintiffs, and the making of a general assignment by the judgment-debtor to Merrill January 6, 1890, filed January 7, 1890.

It alleges that prior to the assignment, while the debtor was insolvent and in contemplation of the assignment, with the purpose of preferring the Eifth .National Bank of Port Henry, and in violation of the statute limiting the amount of preference in a general assignment, said creditor made a chattel mortgage to the cashier of said bank to secure certain notes owing by the debtor to said bank.

It further alleges that the judgment-debtor and said bank, conspiring to cheat his creditors and to mislead them into giving credit to him, agreed that he should execute certain chattel mortgages to said cashier, which should not be recorded until such act became necessary for the protection of said bank, and that he did, therefore, execute three chattel mortgages in October, November and December, 1889, which were not recorded until January, 1890.

It further alleges that said debtor and said bank, conspiring to give him a fictitious credit, agreed that he should execute (and he did execute) three confessions of judgment in August, 1889, and October, 1889, which were not filed until January, 1890.

It further alleges that said, debtor, after making the general ■assignment, gave a confession of judgment to said bank January 6, 1890, which was not filed until January Y, 1890.

It alleges that the judgments are fraudulent and fictitious in that •the indebtedness to the bank was not over twenty thousand dollars, ■and the judgments amounted to over forty-seven thousand seven hundred dollars.

The complaint further alleges a confession of judgment by the debtor to one Palmer in August, 1889, filed January Y, 1890, which it avers is part of the debt secured by judgments to the bank, and was within the terms of the conspiracy aforesaid.

The complaint further alleges the execution of a chattel mortgage by the debtor to Blanche Le Iluray, January 6, 1890, after the execution of the general assignment, and filed January Y, 1890; and, further, that this was intended to secure accommodation notes, indorsed by her, for Stafford, held by said bank, and which were included in the indebtedness of Stafford to said bank of $20,000.

It further alleges that one Ross is preferred in the assignment for ■fifty dollars, and that Stafford was not indebted to him in any sum; ■and that this amount was to be paid him for managing the estate after the assignment.

There is a further allegation that said Stafford, with intent to prefer plaintiff, executed a bond and mortgage to her of $3,000 on real estate and a chattel mortgage, and that plaintiff repudiates the same, and surrenders the same as the court may direct. It is not alleged that any of these acts were done with intent to hinder, delay or defi'aud creditors.

On-the opening'of the case it was conceded by plaintiff that none of the parties intended any fraud. Thereupon the defendants, on this concession and on the complaint, objected to any evidence, and moved to dismiss on the ground that no fraud was charged. The ••motion was granted and. the plaintiff appeals. The counsel for the •plaintiff admits in his brief the necessity of allegations and proving fraud. But he contends that fraud is alleged by the charge of the intentional violation of a statute, of mortgages and judgments given, and confessed as the result of a conspiracy to create fictitious debts.

The mode of disposing of a case adopted here is unsatisfactory. The practice is held in England to be improper (Fletcher v. western Railway Co. [1892], 1 Q. B. Div., 122, Court of Appeals), for it is said that the evidence may be more favorable to the plaintiff than was the opening. In a complaint embracing so many allegations it is difficult to say whether-there may not be in some unobserved clause an allegation on proof of which there might be a recovery. A demurrer (and this dismissal is similai1) can only be sustained when, admitting all the facts alleged, it presents no cause of action whatever. (Marie v. Garrison, 83 N. Y., 14; Sanders v. Soutter, 126 id., 197.)

There is an allegation in the complaint that one Ross is a preferred creditor in the assignment; that the assignor was not indebted to said Ross in any sum whatever; that the sum was named in the assignment under a secret understanding and agreement between the assignor and Ross and the bank; that he was thus to be preferred in consideration of services to be rendered by Ross after the assignment in the interest of the bank.

Nothing was said by defendants’ counsel on the argument as to this allegation. But we cannot properly overlook it in considering the question before us. "We cannot treat it as the allegation of accidental preference of one not a creditor, because there is the allegation that the preference was made on the agreement and understanding that this was to be a payment for future services not rendered to the assignor, but in managing the assigned estate.. Such services when rendered may very possibly be lawfully paid by the assignee. But the assignor could not lawfidly make them a preferred debt in the assignment. It seems quite plain that an assignment knowingly made to secure an alleged debt which has no existence, and which may never exist, must be fraudulent as against creditors. (Griffin v. Barney, 2 N. Y., 372.) In that case it was held fraudulent to provide in an assignment for any other compensation to the assignees than that given by statute to trustees. That decision would be evaded if an assignment could provide a certain sum for services to be done by some person in caring for the estate, whatever such services might be worth and whether performed or not. In Genesse River National Bank v. Mead (18 Hun, 303), cited by defendant, the court remarked: “ Besides the facts alleged are not inconsistent with an honest intention.” That could hardly be said of this allegation we are considering.

The defendant, however, urges that the failure to allege fraud makes the complaint so defective that no recovery could have been had, especially as the plaintiffs counsel concedes that there was no intentional fraud But there are cases where the necessary effect of the assignment is to hinder, delay or defraud, and, therefore, the assignor is assumed to have intended what he directed the assignee to do. ( Wilson v. Robertson, 21 N. Y., 587; Nat. Bank of Granville v. Cohn, 42 Hun, 381; Edgell v. Hart, 9 N. Y., 213.) In the last case the court considered the provision of the Revised Statute, that fraudulent intent is a question of fact, and held as matter of, law that the mortgage on its face was fraudulent. It seems to us, therefore, that the omission to charge a fraudulent intent was not fatal to the complaint if there was an allegation therein which showed, if true, that the assignment was fraudulent in law.

We have not discussed what seems to be the principal part of the plaintiff’s complaint, viz., the attempt to give preferences beyond the statutory limit. Yery probably, if the trial had proceeded, that would have been found to' be the sole ground of plaintiff’s action, and the allegation which we have considered would have been in some way eliminated. But, by the course pursued, we are shut up to the consideration whether there could possibly have been given any proof under this complaint which would have entitled plaintiff to any relief. And we meet the allegation which we have considered, and which appears to show a fraudulent assignment.

The judgment should be reversed, new trial granted, costs to abide event.

Landon and Mayham, JJ., concurred.

Judgment reversed, new trial granted, costs to abide event.


text:
    LYDIA A. CLARK, Respondent, v. MARIA MacDONALD and Others, Appellants. LYDIA A. CLARK, Respondent, v. MARIA MacDONALD and Others, Appellants.
    [No. 1.]
    [No. 2.]

      Fraudulent conveyances — liability of a retiring partner of a fit'm — proof of an intent to deframd a pa/rticular person is not necessary.

    •One Maria MacDonald was a partner in the firm of Shuler & Co., in which one Clark and one Shuler were also partners. MacDonald and Shuler bought out Clark and gave notes to his wife for his interest in the partnership business. Subsequently MacDonald sold her interest to the remaining partner, Shuler, who agreed to pay the firm debts. The trial court refused to find that at this time the firm was solvent. Thereafter MacDonald made transfers of property, without consideration, to her daughter.
    In actions brought by Clark, as a judgment-creditor of the firm composed of MacDonald and Shuler, to set aside such transfers as fraudulent:

      Held, that the actions could be maintained: '
    That the liability of MacDonald to pay the firm debts continued, and that the transactions between her and Shuler did not affect the plaintiff.
    That the fact that MacDonald might have' supposed that Shuler would pay the plaintiff, and hence in making said transfers did not intend to defraud the plaintiff, was of no importance if the effect of the transfers was to hinder, delay or defraud the plaintiff.
    That the assignment was void as against persons hindered; delayed or defrauded thereby, even though the assignor had not those particular persons in mind when the assignment was made.
    That the fact that Shuler had agreed to pay the firm debts was only a circumstance bearing upon the question whether MacDonald, in making her transfers to her daughter, had a fraudulent intent.
    Appeal in the first above-entitled action by the defendants, Maria MacDonald, Carrie S. MacDonald, Lillie S. Stevenson, Isaac C. Shuler, Thomas Morphy and Henry Michaelson, from a judgment •of the Supreme Court, entered in the office of the clerk of the ■county of Montgomery on the 5th day of February, 1891, setting aside certain transfers by the defendant Maria MacDonald to the ■defendant Carrie S. MacDonald, and by her to the defendant Lillie S. Stevenson, with notice of an intention to bring up for review, upon such appeal, all of said judgment, except that portion dismissing the complaint, so far as it related to certain Main street property, after a trial before a referee; also an appeal in the second above-entitled action by the defendants, Maria MacDonald, Carrie S. MacDonald, Lillie S. Stevenson and Thomas Morphy, from a judgment, entered in said clerk’s office on said last-mentioned day, setting-aside certain transfers by the defendant Maria MacDonald to the defendant Carrie S. MacDonald, and by the latter to the defendant Lillie S. Stevenson, after a trial before a referee, with notice of an intention to bring up for review, upon such appeal, all of said judgment, except that portion dismissing the complaint, so far as it related to certain Main street property.

      W. Q. Mamoell and John L. Herming, for the appellants.

      G. 8. Nisbet and W. L. Van Denbergh, for the respondent.
   Learned, P. J.:

These are appeals by defendants from judgments on the report of a referee. The actions arise out of the transactions which were the subject of controversy in MacDonald v. MacDonald (33 N. Y. St. Rep., 39). And these actions, like that, were brought by a judgment-creditor to set aside conveyances alleged to be fraudulent.

The plaintiff sought to recover the Main street property, as to which the referee reported in favor of defendant; the Spring street property; the annuity contract and the bank stock, as to all of vdiich the referee reported in plaintiff’s favor. The conveyances were made by Maria MacDonald, the judgment-debtor, to her daughter, Carrie S. MacDonald. Carrie S. MacDonald made certain conveyance of this property to one Lillie S. Stevenson. But there is no attempt on this appeal to claim that Lillie S. Stevenson acquired any better title than Carrie S. MacDonald had. We need only refer to what was said by this court in the former case as to the attempted conveyances by Carrie S. to Lillie S. Stevenson. The testimony given by Lillie S. Stevenson in the former case was read in tliisThe referee came to the same conclusion in regard to her pretended title with that of Mr. Justice Fish in the former case. And his conclusion is unquestionably correct. The only .question of importance, then, is whether these transfers and conveyances to Carrie S. were valid against the plaintiff.

In 18Y1 the firm of I. C. Shuler & Co. was composed of Isaac C. Shuler, Maria MacDonald and Augustus Clark. It so continued till 1883, when Clark’s interest in the business, being three-tenths, was bought by Maria MacDonald and Shuler, and they gave thereupon a. note of $5,000 to the plaintiff, Clark’s wife, on which note the judgment in the first suit was recovered. .The judgment in the second suit was also on notes amounting to -$1,075 made by said Maria-MacDonald and said Shuler.

In 1888 Maria McDonald sold out to Shuler. lie agreed to pay her an annuity of $800 a year for three years (which is the annuity contract), and Shuler agreed to pay all the partnership debts. The-referee refused to find that the firm was then solvent, and that Shuler had considerable property outside of the firm.

The three notes above mentioned are stated in the referee’s opinion to be firm notes of I. C. Shuler & Co.

The counsel for the appellants seeks to distinguish these cases from that above referred to on the ground that these were firm debts; that Maria MacDonald had reasonably provided for their payment by her transfer of her interest in the firm to Shuler, and by his agreement to pay these debts; that she had thus become a quasi surety, and Shuler the principal debtor; and that, under these circumstances, the voluntary transfer of her property to her daughter should not be held fraudulent.

Of course, unless the firm was, in fact, solvent, or Shuler had property outside, there was nothing in the agreement which gave plaintiff any protection. And, in any event, plaintiff acquired no additional security. When Maria MacDonald went out of the firm, Shuler and the firm property were already liable; and his agreement to pay the firm debts was only a matter between himself and the outgoing partner. Even if Shuler had, at that time, property outside of the firm, that property was already liable for his debts» So that in no way did Maria MacDonald, when she went out of the> firm, increase the plaintiff’s security. It is further evident that the prosperity of the firm had fallen off largely before this time.

It is well settled under our statute that, in such cases, the question of fraudulent intent is generally one of fact. The referee finds,, as fact in this ease, that the several transfers were made with intent, to hinder, delay and defraud plaintiff, and were accepted by Carrie S» with the distinct understanding that she was to hold and manage the same for said Maria MacDonald.

And we see no reason to doubt' the correctness of this conclusion. The transfers were without consideration, and they transferred all the property of Maria MacDonald. Carrie S. herself says she took this property to manage it for her mother, and is managing it for her. This is plainly not the case of a gift to a child, reasonable in amount, compared with the property of the parent.

The appellants claim that, even if Maria MacDonald transferred this property to Carrie S. with intent to defraud some creditors, yet the transfers were not void as to the plaintiff, because she was (as they claim) secured by Shuler’s agreement to pay them. We have already seen that she was not, in fact, secured by this agreement, and that it was of no benefit to her. But, in any event, the statute does not say that an assignment, made with intent to defraud creditors, shall be void as to those whom the assignor intended to defraud, or as to those who have no security whatever. That would be a very lame statute. The statute is that the assignment is void “ as against the persons so hindered, delayed or defrauded.” (2 R.' S., m. p. 137, § 1.) If one makes an assignment with intent to defraud creditors, it is void as to a defrauded creditor, although he was not in the mind of the assignor. The creditor thus actually defrauded by the act of the debtor is not to be deprived of his rights to reach what is truly the debtor’s property by an assertion on the part of the debtor that he supposed that that creditor could collect his debt in some. other way, and that he was only endeavoring to defraud some other creditors. The appellants in this case say: True, these transfers were made with intent to defraud creditors; but Maria MacDonald was not thinking of this plaintiff, and, indeed, supposed that Shuler would pay her; therefore, although the plaintiff is actually defrauded and- unable to collect her debt, yet the fraudulent assignee shall keep the property from this insolvent debtor.

An assignment with intent to defraud creditors cannot stand as against any creditor who is thereby defrauded; whether the intent was specially to defraud him or not, and whether or not he may háve a right to sue some other person for the debt. For the thing assigned in such a case is not rightfully the property of the assignee, but, as against creditors of the assignor, is still the property of the assignor.

Of course, the fact that Shuler had agreed to paythese debts was a circumstance, with all the other circumstances, to be considered on the question whether the transfers to Carrie S. were made with intent to defraud creditors. But on this question of fact, on the intent of Maria MacDonald and Carrie S., we thinlc the referee found correctly. He could hardly have found otherwise.

' The appellants urge that as the plaintiff did not succeed in respect to the Main street property, the referee should not have allowed costs against them in each action. No appeal is taken by the plaintiff in respect to the judgment as to this Main street property. Yet there are circumstances which cast suspicion on the conveyance of that property. It was without consideration. The ■deed was not recorded for four years. Taxes, etc., were paid out of Maria’s money. Fortunately for the defendants the referee decided that the conveyance was not with intent to defraud creditors. But we think that the defendants’ success in that respect does not make their position so meritorious that they should escape paying costs.

Judgment affirmed in both cases, with costs against defendants personally.

Landon and Mayham, JJ., concurred.

Judgments affirmed, with costs.


author: Landon, J.:

text:
    JOHN REED, Respondent, v. GEORGE McCONNELL, Survivor of McCONNELL & GARDNER, Appellant.

      Statute of frauds — amendment, setting up services rendered, instead of the breach of a parol agreement —• a void parol agreement to. buy bark — is not pi'operty — is not a contribution to a firm when turned over to it.

    The complaint in an action demanded judgment, first, for the value of the plaintiff’s services in building a tannery at Oregon, Warren county, for a firm, of which the defendant was the survivor; and, second, for damages resulting from the failure of the firm to perform a parol agreement to take the plaintiff into the tannery business.
    Upon the trial of the action it appeared that the parol contract covered a term of twelve years, and that after part performance thereof the plaintiff had been discharged; that the plaintiff had expended moneys in and about the erection of the tannery, for the benefit of the firm, and that he had allowed the firm to take the benefit of an oral contract, which he had made in his own name with one Griffin for the purchase of a large quantity of bark, from which contract,, as plaintiff alleged, the firm made a large profit.
    When the plaintiff rested the defendant moved to dismiss the complaint upon the ground that the parol agreement to make him a partner was void under the statute of frauds, being neither in writing nor capable of performance within one year.
    The court, while apparently holding that the contract was void, allowed the plaintiff to recover for his services and disbursements, and for the profit on the bark contract.

      Held, that the plaintiff might recover if the complaint could, as appeared to be the fact, be amended so as to be adapted to the recovery for services and disbursements without thereby introducing a new cause of action.
    That, upon the facts stated in the complaint, as the defendant had failed to plead the statute of frauds, and the plaintiff could not know that that objection would be raised until it was actually taken, the plaintiff might recover for his services- and disbursements, but not upon the bark contract.
    That as the oral bark contract was for an amount over fifty dollars it was void; and as the plaintiff never had a right to acquire the bark, nor the title to it, his option could not be deemed a contribution of property by him to the assets of' the firm.
    That a recovery upon said bark contract was improper, as the evidence did not show that the plaintiff was able or willing to carry it out, or that he would have-done so if the firm had not.
    That as the parol agreement between the plaintiff and the firm was void the plaintiff could not recover upon it, but must recover, if at all, upon an implied assumpsit. That the parol agreement was evidence of a request for the services, money and property furnished.
    Appeal by the defendant George McConnell, as survivor of McConnell & Gardner, from a judgment, entered in the office of the-clerk of the county of Warren on the 4th day of August, 1890, in favor of the plaintiff for $21,842.13 recovery, besides costs, after a trial by the court at the Warren County Circuit.
    The complaint sought a recovery, first, for the services and expenditures of the plaintiff in building a tannery for defendant’s firm at Oregon, Warren county; second, for damages sustained by the plaintiff because of the breach by the defendants of an oral agreement to take the plaintiff into the tannery business upon the completion of said tannery, in the erection of which the services and expenditures mentioned in the first count of the complaint were-rendered and made.
    The answer admits that plaintiff did render services for defendants-in the construction of the tannery, but denies they were of the value claimed by plaintiff, and sets forth the contract in terms different-from those alleged by the plaintiff, and alleges that plaintiff voluntarily left defendant’s employment, and also sets un a counter-claim to which plaintiff replied.
    The trial court found that the oral contract was made substantially as claimed by the plaintiff; that it was to continue twelve years that after part performance defendants refused to perform and discharged plaintiff; that plaintiff rendered services and expended moneys in and about the erection of the tannery to the amount of $3,388.73, and that plaintiff made a'contribution to the tannery enterprise as follows: He allowed the defendants to enter into and take the benefit of a contract with one Griffin for the purchase of 50,000 cords of bark at fifty cents per cord, which he had orally negotiated with Griffin in his ow,n name, that said bark was really worth seventy-five cents per cord, making $12,500 more than defendants paid for it. The court established counter-claims against the plaintiff to the amount of $6,603.68.
    Upon the trial the defendant took the objection that the contract between the parties was void umjer the statute of frauds, and the trial court, though not expressly so finding, assumed it to be so, and held that plaintiff having performed his contract with defendants-for building the tannery and running the same, until they, without-just cause, turned him away and refused to carry out their contract with him, he being ready and willing to continue performance, was-entitled to recover the sum contributed by him towards buying the site ($100), also the value of said bark contract and interest thereon since it was made (namely, $12,500, and interest), and for his services- and expenditures in money and materials ($3,288.73), from which should be deducted the amount of the counter-claims ($6,603.68). These items, reckoning interest, made a balance in plaintiff’s favor of $21,812.13, for which judgment was directed, with costs.’ Other facts are stated in the opinion.

      Francis A. Smith,, for the appellant.

      F. T. Brachett, for the respondent.
   Landon, J.:

The complaint seeks a recovery for service and expenditures rendered and made by plaintiff while he was permitted by defendant’s-firm to continue in performance of an oral contract made with them,. •and also for damages because they prematurely discharged him, and would not allow him to continue performance. The plaintiff introduced his evidence and rested, and then the defendant objected that the contract was void by the statute of frauds, being neither in writing nor by its terms performable within a year. The court, apparently, held that the contract was void by the statute of frauds, and because void that the plaintiff was, under the complaint, entitled to recover the amount of his contribution, in services, money and property, to the tannery enterprise, which was the subject-matter of the oral contract.

The defendant’s position is that the plaintiff must recover, if at .all, upon the causes of action set forth in the complaint, that is, first, under the contract, and, second, for its subsequent breach; that the plaintiff’s evidence disproves the contract counted upon, and takes away the basis of recovery. That the recovery allowed by the court is upon the basis of the invalidity of the contract set forth; that is, upon no contract; certainly not upon the contract set forth in the complaint. If it was proper to amend the complaint so as to conform it to the theory upon which the recovery was allowed, then the objection is not well taken. The question is not free from difficulty, but we are inclined to think that the amendment suggested might have been made. The evidence was as applicable to one theory of recovery as the other; and the true test, we apprehend, is whether the amendment introduces a new subject-matter of recovery, or whether, with or without additional collateral facts, it is simply a new characterization of the old. Here the plaintiff? in framing his complaint, was not mistaken as to his facts, but simply .as to his rights under them; nor could he know, until the defendant interposed the objection of the statute of frauds, that it would be taken; and if it liad not been taken the court would have been bound to uphold the validity of the oral contract, since it was competent (neither good morals nor public policy being violated), for the defendant to waive, by his silence, the statute of frauds.

We pass now to consider the question whether the allowance to •the plaintiff of the estimated profits of the bark contract was proper.

The plaintiff was a practical tanner, owning and operating a tannery at North Creek, Warren county, and holding contracts with McConnell & Gardner of Boston, Mass., who were partners and dealers in hides and leather, and in procuring hides to be tanned into leather, of which firm defendant McConnell is the survivor, Gardner having died since the commencement of this action. Prior to March, 1877, the plaintiff proposed to McConnell and Gardner that they should build and operate a tannery at Oregon in said county, about twelve miles from plaintiff’s tannery, they to furnish the funds and he to superintend and manage the enterprise. The plaintiff pointed oiit to them the advantages of a particular site which he designated, among which was the abundance of bark near the proposed site, upon land which one Griffin was .about to purchase at foreclosure sale. Plaintiff had opened negotiations with Griffin for the purchase of the bark upon this land to the amount of 50,000 cords at fifty cents a cord, in case Griffin should complete the purchase. Griffin did orally agree with plaintiff that he would sell him the bark at fifty cents a cord when he should acquire title to the land. It is not claimed that this was a valid contract under the statute. The plaintiff also obtained from one Van Dusen a contract allowing him to purchase within a limited time the site for the proposed tannery for $3,000, being a tract of 400 acres of land. Plaintiff paid $100 upon this contract to be allowed' upon the purchase-money if the land should be purchased, and to be forfeited if not purchased. McConnell and Gardner in May, 1877, concluded to embark in the enterprise, and then entered into an oral agreement with the plaintiff, whereby they agreed to furnish the money for the purchase of said bark and site, and for the erection and proper equipment of a tannery on said site, the plaintiff to cause the title to the site to be procured in their names, and the .said bark at said price to be purchased of Griffin also in their names, the plaintiff to superintend the erection and equipment of the tannery. McConnell and Gardner upon the completion of the tannery were to stock it with hides for tanning, all of said bark to be used for such purpose, the plaintiff to superintend the business and be paid $1,000 per year from the commencement and during the period necessary to consume said bark, which was estimated at twelve years, and, also, after computing the expenses and receipts upon a plan agreed upon the plaintiff was to be paid, in addition, one-third of the net profits.

In pursuance of such agreement the site was purchased, and the contract for the purchase of the said bark by McConnell and Gardner was made by them with Griffin in writing, plaintiff assisting in the negotiations and the firm furnishing the money for both bark and site. The plaintiff proceeded with the erection of the tannery, the firm furnishing him large sums of money for the purpose. The plaintiff rendered services in this employment from May, 1877, until October, 1878, when the firm without just cause discharged him. Upon these facts and upon defendant’s objection, sustained by the trial court, that the contract was void by the statute of frauds, plaintiff was entitled to recover, not under the contract, but as upon an implied assumpsit for whatever services, money or property he had furnished the firm. (Day v. N. Y. C. R. R. Co., 51 N. Y., 583.) The contract has no value as such, but is evidence of a request for the services, money and property supplied by plaintiff.

Griffin did obtain title to the bark land, and was ready and willing to sell the bark to plaintiff at fifty cents a cord. Whether, independent of the tannery enterprise, plaintiff was ready, able and willing to purchase the bark for himself is not directly found by the trial ■court. His own testimony and his letters lead us to think that he made his negotiation for it as an inducement to McConnell & •Gardner to engage in the tannery enterprise, and if they had not so •engaged, plaintiff would not have bought the bark. He testifies that Griffin told him he would sell the baric for fifty cents “to start .a tannery there.” That McConnell told him to “close the contract with Griffin for the bark if you can, make arrangements to go ahead and build when you’re sure you can get the bark.” The large supply of bark and its cheapness were the principal advantages of the location at Oregon. Plaintiff, in a letter to McConnell & Gardner, dated April 6, 1877, writes: “There is 200,000 cords of bark in that location that must come to the two tanneries.” The plaintiff did not testify that he would have' bought the bark if his negotiations with McConnell & Gardner had fallen through. He ■does testify that, in September, 1877, in a conversation with Gardner, in which he objected to leaving the employment of the firm, he said to Gardner: “ When I first talked of buying this bark I intended it for the North Creek tannery (plaintiff’s). I afterwards concluded it would be better to build a tannery at Oregon.” This subsequent declaration of his earlier intention may not be the best evidence of it, but, if we accept it, it shows that the intention was transient, and was soon replaced by a different one. The finding of the trial court that Griffin would have sold tbe bark to the plaintiff, and not to the firm, except with the consent of the plaintiff, falls short of a finding •that plaintiff would have bought the bark if the firm had not. The evidence would not justify the latter finding. "When, therefore, McConnell & Gardner agreed with him upon the erection of the new tannery, and for the purchase of the bark, for which plaintiff had obtained an oral refusal of Griffin, and McConnell & Gardner, with the consent and assistance of plaintiff, purchased the bark, it seems clear that the plaintiff did not either transfer or contribute to them any tangible property qf his own, or any valuable right existing in himself to acquire it. The plaintiff had not converted his opportunity to acquire property into property. He, in effect, said to McConnell & Gardner: I think, indeed, I am sure, I can buy this bark for fifty cents a cord, but if you will go into this enterprise I will let you buy it, and will assist you in doing so. Plaintiff cites Benton v. Pratt (2 Wend., 385). In that case a firm of hog buyers had orally agreed with plaintiff to buy of him 200 hogs at the market-price, provided he delivered them within two weeks. By the statute of frauds this agreement was- void. The plaintiff procured the hogs and was driving them along the highway to the place of delivery. When seventy miles distant from said place, defendant, with a like drove of hogs, passed him on the road, and learning from plaintiff liis arrangement for the sale of his hogs, hastened along to the same place. The hog buyers there told defendant that they could not buy of him on account of their contract with plaintiff. Defendant told them plaintiff was not coming, but was going elsewhere with his drove. The hog buyers were thereby induced to buy defendant’s hogs, and being thus supplied, refused to purchase of plaintiff when he arrived with his hogs. Had they known he was coming they would not have purchased of defendant, and would have purchased of plaintiff. Plaintiff recovered of defendant the damages he sustained in consequence of the deceit practiced by defendant. Rice v. Manley (66 N. Y., 82), was also a case of deceit causing damage, and the recovery was placed upon that ground. Ip the present case, McConnell & Gardner practiced no fraud or deceit. They refused to perform a .void agreement not amounting to a contract, which imposed no legal obligation of performance. (Dung v. Parker, 52 N. Y., 494; Levy v. Brush, 45 id., 589.) Moreover, it does not distinctly appear here that the plaintiff .would have secured any advantage from his option to buy the bark if he had not given McConnell & Gardner the benefit of it.

Plaintiff’s contribution to the tannery enterprise, aside from money and materials as found by the court, were his skill, services, activity, knowledge of local conditions and opportunities to make this bark and other contracts advantageous to his employers, whom, when he entered their service as their agent and superintendent, he undertook to serve faithfully in these respects. He contributed no bark nor profits in a bark contract, for he had neither, nor is it clear that he was induced by any act of his employers to forego any advantage otherwise certain to result to himself in respect to the bark. In measuring his recovery his actual contribution to the tannery enterprise should be allowed at its actual value, but not the profits of a contract which plaintiff negotiated for the defendant’s firm and not for himself.

The defendant urges that there are some errors in the items of the other allowances; if so, they can be readily corrected upon another trial.

The judgment should be reversed, new trial granted, costs to abide the event.

Learned, P. J., and Mayham, J., concurred.

Judgment reversed, new trial granted, costs to abide event.


author: Mayham, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HARRY M. CRAWFORD, Appellant.

      Grimes — bigamy — effect, under a New Jersey statute declar'ing it void, of a marriage while a former wife is living — when a marriage certificate is evidence — res gestae.

    An indictment for bigamy charged that the defendant, on June SO, 1§87, at Newark, New Jersey, married one Lane, and that while she was his wife he, on August 80, 1890, at Esopus, New York, married one Du Bois. The New Jersey statute relative to divorces, among other things, provides “that all marriages, where either of the parties shall have a husband of wife living at the time of such marriage, shall be invalid from the beginning and absolutely void, and the issue thereof shall be deemed to be illegitimate and subject to the legal disabilities of such issue.”
    The defendant offered to prove that when lie married Lane he was the husband of one Butler, who was then living, and upon this ground claimed that his marriage to Lane was void under the New Jersey statute, and that his subsequent marriage to Du Bois did not constitute bigamy.

      Held, that his marriage to Lane having taken place in New Jersey its validity must be determined by the laws of that State.
    That its statute must be taken to mean that said marriage was absolutely void, although there was no decree of divorce or other legal process.
    That an informal certificate offered in evidence by the defendant, purporting to be that of the mairiage of the defendant to Butler, signed by one Bay, and as to which the defendant testified that it was his marriage certificate, and that Bay, who was pastor of an Episcopal church in Harlem, had handed it to him, was properly excluded.
    That as said certificate was not a substantial compliance with the statute, and as its execution was not sufficiently proved, it was not competent evidence either as a certificate or as a part of the res geste».

    Appeal by tbe defendant Harry Mortimer Crawford from a judgment of conviction of the crime of bigamy, rendered against bim by a Court of Sessions held in and for the county of Ulster on the 9th day of March, 1891, with notice of an intention to bring up for review upon such appeal an order overruling a demurrer herein, and all intermediate orders.
    The indictment charged that on the 30th day of June, 1887, at the city of Newark, in the State of New Jersey, the defendant was married to Laura Ann Lane, and that while the said Laura Ann Lane was still living, and while he was married to her, that the defendant, on the 31st day of August, 1890, at Esopus, in Ulster county, N. Y., married one Leona Du Bois. The defendant pleaded not guilty to the indictment and the case was transferred from the Oyer and Terminer to the Ulster County Sessions, where a conviction was had from which the defendant appeals.

      O. D. B. Hasbrouck, for the appellant.

      John N. Vanclerlyn, for the respondent.
   Mayham, J. :

The defendant, before pleading to the merits of the indictment, demurred to the same, alleging several grounds of demurrer, which demurrer was overruled. But no point is made on this appeal on the demurrer, and it, therefore, requires no discussion here, and, so far as appears, the demurrer was properly disposed of by the trial judge. The first ground urged by ajrpellant for the reversal of this conviction is that the defendant’s alleged marriage in New Jersey to Laura Ann Lane, was void under the laws'of New Jersey, where it occurred, by reason of his previous marriage to one Beatrice "Vulcan Butler, who at the time of his alleged marriage to Lane was living and his lawful wife; and that bigamy could not be predicated upon his marriage with Leona Du Bois after the alleged marriage with Lane, for the reason that that marriage was absolutely void, and constituted, therefore, no previous marriage ; and that, consequently, the defendant did not marry Leona Du Bois while he was married to the said Laura Ann Lane, as charged in the indictment.

In support of this contention the appellant’s counsel cites the New Jersey statute, which provides: “That all marriages where either of the parties shall have a husband or wife living at the time of such marriage, shall be invalid from the beginning and absolutely void, and the issue thereof shall be deemed to be illegitimate and subject to the legal disabilities of such issue.” As this alleged marriage to Laura Ann Lane occurred in New Jersey, its validity must be determined by the laws of that State (Van Voorhis v. Brintnall, 86 N. Y., 18; Moore v. Hegeman, 92 id., 524), provided that statute is properly before the court. The case shows that it was introduced in evidence, and this court must, therefore, take judicial notice of its provisions. It is true that the New Jersey statute quoted relates to divorces, and is not, in terms, applicable to criminal actions for bigamy, but it, nevertheless, prescribes the ■effect of a previous marriage and renders the subsequent marriage void when celebrated in that State, but it does not, in terms, like the Michigan statute which has been considered by the. courts of the ¡State in the People v. Chase (27 Hun, 257), make a divorce unnecessary. That statute provides that such second marriage “shall, if ¡solemnized within this State, be absolutely void, without any decree of divorce or other legal process.”

In People v. Chase (supra), the conviction-was reversed on the ground that the bigamy alleged in the indictment, and upon which a conviction was had, was shown on the trial to have referred to a second and third marriage, the second marriage being void by statute in the State where it was celebrated was held to be no marriage, and, therefore, the one in which the bigamy was alleged was not in legal effect the second marriage as charged in the indictment. This was upon the theory that the second and third marriages were the ■only marriages alleged; and as the second was void it was as no marriage, and did not, therefore, make the other bigamous. I think, within the decisions quoted, we may hold that the word “void” in the New Jersey statute is, in effect, equivalent to the words used in the Michigan statute, which have been construed by this court in the first department to render the second marriage absolutely void and as if no such ceremony had taken place. It would seem to follow, therefore, that if the defendant was, in fact, married in the State of New York to Beatrice Yulcan Butler September 1, 1879, and then on the 30th of June, 1887, in the State of New Jersey, to Laura Ann Lane, while the first wife was still living, and not divorced, bigamy cannot be predicated on the marriage to Leona Du Bois on the 31st of August, 1890, solely upon the allegations of the marriage with Laura Ann Lane and Leona Du Bois, for the ceremony of marriage with Lane did not constitute a legal marriage in New Jersey and was void under the laws of that State. But whether or not the defendant was ever married to Beatrice Yulcan Butler was a question of fact for the jury, and was submitted by the trial judge to them, and the result of their verdict is that he failed to prove his marriage with Butler. The people in this case having proved the two marriages of the defendant, under circumstances, such as, -unexplained, constituted a criminal offense, it was incumbent on the defendant to establish a valid legal excuse or defense. This he undertook to do by proving by his own oath the marriage with Miss Butler before Ms marriage with Lane. But the rule is too well settled, that the jury are not bound to believe the uncorroborated evidence of the defendant charged with crime, to require citation of authorities. But the defendant sought to corroborate his statement by the introduction of some other evidence.

The defendant offered in evidence a paper which, upon its face, purported to be an informal certificate of marriage of the defendant and Beatrice Yulcan Butler, purporting to have been signed by Raymond Ray, and testified that it was his marriage certificate, and that Raymond Ray was pastor of an Episcopal church in Harlem. This paper was excluded by the court on the ground that it did not conform to the statutory requirement, and was not, therefore, a valid marriage certificate. An exception was taken to this ruling, and the appellant’s counsel now urges that the rejection of the paper was error, for which the conviction should be reversed. We see no error in its rejection. It was not proved to have been signed by the alleged minister. The only evidence of its authenticity was the testimony of the defendant that Ray handed it to him. But if its execution had been proved, it was not even a substantial compliance with the requirements of the statute. The statute makes the original certificate evidence when made as directed in the statute, and it is only by force of this statute that the common-law method of proving it can be obviated. It was, therefore, properly rejected as a statutory certificate of marriage. Nor do we see how it can be received as part of the res gestae. It constituted no part of the marriage ceremony, and it does not affirmatively appear that it was made and delivered at the time of the alleged marriage. It is urged, as another corroborating circumstance tending to prove his marriage with Miss Butler, that he introduced her as his wife and lived with her as such. This evidence, while it was competent upon that subject, and proper for the consideration of the jury, was in no way conclusive upon them. They had a right to consider it and give it such weight as, in their judgment, it was entitled to. On the occasion of his marriage to Leona Du Bois, he stated to the clergyman that this was his first marriage. They had also a right to take into account, in considering the evidence, the character of the witness who testified upon that subject and the relation he bore to the defendant in this case. We cannot, under the circumstances of this case, hold, as matter of law, that the defendant proved his marriage with the woman Butler; that the jury were compelled to find that fact, and that their failure to do so will justify the interference of this court in reversing this conviction upon that ground. We have examined the various objections and exceptions taken to the charge of tbe trial judge, and see no error or misdirection in the same for which the judgment should be reversed.

The judgment is affirmed.

Learned, P. J., and Landon, J., concurred.

Judgment and conviction affirmed.