author: By the Court. Duer, C. J.

text:
    William Purvis v. Robert B. Coleman and Charles A. Stetson.
    "Where, upon a trial, facts have been specially found by the jury in answer to questions submitted by the Judge, and a verdict directed subject to the opinion of the Court at General Term; a motion cannot.be entertained at General Term to set aside the finding of the jury, upon one or more of the questions submitted, as against evidence. Such a motion must be made in the first instance at Special Term, and it is only upon an appeal from an order there made, that such a motion can be considered by the Court at General Term.
    When no such motion is before the Com* at General Term, the finding of the jury upon the questions of fact submitted to them, must be regarded as conclusive, and the duty of -the Court, as it is upon a special verdict, is merely to declare the law arising upon the facts as found. Negligence, when the facts upon which the charge depends are disputed, is a mixed question of law and fact. The jury must ascertain the facts, and the Judge must instruct them as to the rule of law which they are to apply to the facts as they shall find them.

      When an agent or servant performs an act which it was for the manifest benefit of his principal or master, should be performed, the assent and authority of such principal or master to the performance of the act will be implied. In an action, by a guest, against an inn-keeper to charge him with the loss of money or valuable articles, it is a good defence, that actual notice had been given to the plaintiff, that a safe had been provided for the purpose mentioned in the act “to regulate the liability of hotel-keepers,” although no notice, stating that fact, was posted, at the time, in the room occupied by such guest. The act although not in terms yet by a necessary implication, sanctions the defence.
    (Before Duer, Ch. J., & HospiTAir, J.)
    Heard, May 20;
    decided, May 30, 1857.
    This action comes before the Court, on a verdict for the plaintiff, subject to the opinion of the Court, at General Term.
    This was an action against the defendants as keepers of a common inn, in the city of New York, known as the Astor House, to recover from them the sum of $1,964 with interest, being the value in dollars, of four hundred sovereigns, which the complaint alleged that the plaintiff had lost while a guest in the Astor House, through the negligence and carelessness of the defendants, or their servants. The complaint also alleged that the plaintiff was a traveller in the United States, and had brought the sovereigns with him for his necessary travelling expenses.
    The answer after denying most of the allegations in the com- '■ plaint, set up as a special defence, that the defendants at the time the plaintiff was received as a guest in their inn, provided and kept in the office of the inn, a safe, for the safe keeping of money, jewels, or ornaments belonging, to their guests, and that the plaintiff was duly notified thereof, This defence was founded on an act of the legislature, passed in 1855, entitled an “act to regulate the liability of hotel-keepers.” (Sess. Laws, 1855, c. 421.)
    The act is in these words,
    “ The people of the State of New York, represented in Senate and Assembly, do enact as follows:
    “ Sec. 1. Whenever the proprietor or proprietors of any hotel shall provide a safe in the office of such hotel, or other convenient place for the safe-keeping of any money, jewels, or ornaments, belonging to the guests of such hotel, and shall notify the guests thereof by posting a notice (stating the fact that such safe is provided, in which money, jewels, or ornaments may be deposited), in the room or rooms occupied by such guests, in a,
      conspicuous manner, and if such guest shall neglect to deposit such money, jewels, or ornaments, in such safe, the proprietor or proprietors of such hotel shall not be liable for any loss of such money, jewels, or ornaments, sustained by such guest by theft or otherwise.”
    The cause was tried before Mr. Justice Slosson, and a jury, in December, 1856.
    It was clearly proved upon the trial that the plaintiff who is a resident at Sumatra, in the Bast Indies, and had visited the United States for pleasure, while a guest in the defendants’ hotel, had sustained the loss alleged in the complaint. The money was in a trunk which was broken open. The defendants proved that they kept a safe in their office as required by the statute, and it was proved by a servant in their employ, that when he conducted the plaintiff to the room he was to occupy, he told him if he had any money or jewelry, to deposit it in the office, as there was a safe provided for it, and that there was an act passed by the legislature to keep hotel-keepers from any liability for,a loss. Upon the question, whether the notice mentioned in the statute, was duly posted in the plaintiff’s room, there was a conflict of evidence. A printed notice such as it was alleged had been posted up, was read in evidence on the part of the defendants. It is not necessary to state more particularly the evidence on the trial, since the questions of law that were argued and decided at General Term, arose entirely on the facts specially found by the jury, and on the charge of the Judge.
    When the testimony was closed, the counsel for the parties summed up the case upon the following questions, which were directed, by the Court, to be submitted to the jury for their determination:
    First.—Was the money in the trunk at the time the trunk was broken open ?
    Second.—Was the printed notice “A,” posted up in the bedroom at the time the plaintiff took possession of it ?
    Third.—Was notice given to the plaintiff of the existence of the safe, as a place of deposit for valuables, other than the printed notice ?
    Fourth.—If you answer the third question affirmatively, then was the plaintiff guilty of negligence, under the circumstances, in not availing himself of the notice so given to him?

      • Fifth.—Was the. money in the trunk (if you find it was there) a reasonable amount to defray the expenses of the plaintiff, taking into consideration the journey he was on, or the travelling he was engaged in, as far as the evidence shows what that was ?
    . His honor, the Judge, then submitted the questions aforesaid to the jury, .and charged the jury as follows:
    For the purpose of this trial, I charge, that if the information communicated to the plaintiff by the waiter (if you find it was so done), was communicated by the authority of the defendants, and was so communicated as that it was understood by the plaintiff, so that he had actual full notice of the fact, that there was a safe in the- office appropriated for the safe custody of valuables, it was negligence, considering the amount of money in his trunk, not to have intrusted it to the safe. He should, at least, have made further inquiry..
    To all of which charge the counsel for the plaintiff excepted.
    The jury found upon the several questions as follows:—
    To the first, third, and fourth questions, in the affirmative. To the second question, in the negative; and to the fifth question, that the amount was not too much.
    The jury thereupon, under the direction of the Court, rendered a general verdict for the plaintiff against the defendants, for the sum of two thousand and fifty-eight dollars, subject to the opinion of the Court at General Term.

      W. H. Leonard, for the plaintiff,
    moved for judgment on the verdict in his favor. He insisted that, the provisions of the statute not having been complied with, as the jury had found, the case stood upon the same ground as if no such act had been passed; and the liability of the defendants at common law could not be doubted. He also insisted, that the Judge, upon the trial, erred in submitting to the jury the question, whether the plaintiff had been guilty of negligence. He cited, Grinnell v. Cook, 3 Hill. 489; Piper v. Manny, 21 Wend. 284; 2 Kent’s Com. 593-4.

      J. Miller, for the defendants,
    contended that, whatever might have been the liability of the defendants at common , law, they were plainly exonerated by the finding of the jury, that the plaintiff had notice that a safe had been provided, and had neglected to avail himself of the knowledge. These facts brought the case, if not within the words, within the equity and.spirit of the statute.
   By the Court. Duer, C. J.

We are now to determine whether the plaintiff is entitled to judgment upon the verdict, as rendered, or whether it is not our duty, upon the facts specially found, to set aside the verdict, and order a judgment, with costs, for the defendants.—Code, § 262.

■ It .was insisted, by the: counsel- for the plaintiff, that the finding of the jury, upon the question of notice to the plaintiff that a safe had been provided, was against evidence, inasmuch as the testimony of. the only witness who swore, to the facts was so uncertain arid contradictory, that it ought to have been disregarded. But this is plainly a question that we have, no right to entertain. If -the counsel, supposed that the verdict of the jury was, in this respect, against evidence—we are far. from meaning to intimate that it was so—he should have moved, for a new trial at Special Term. When a. verdict has been taken, subject to the opinion of the Court at General Term, the only questions on which the Court cari pass, or should permit to'beargued, are questions of law arising upon exceptions, or upon undisputed facts; and when the facts upon which the case depends have been specially found by the jury, their, finding is conclusive. The finding of a jury upon particular questions submitted by the Court, is a convenient substitute for a special verdict, and the duty of the Court at General Term is, in both cases, exactly the same; it is simply to declare the law arising upon the facts, as found. It is true, where a material question has been submitted, in relation to which no evidence at all had been given, or where a material question, that ought to have been submitted, has been omitted, the Court, in the exercise of its discretion,'may :grant a new trial; but in all other cases the prevailing parly is entitled to a final judgment.

It has been contended that in this case there was no evidence to justify the submission to the jury of the question whether the plaintiff was guilty of negligence in not availing himself of the notice given to him—but. we are clearly of opinion that there was evidence applicable to the question, and that it was pro* perly submitted to the jury—that the plaintiff did not avail himself of the notice is certain, and if the notice was as full and explicit as it will appear it was found to be, by the jury, the negligence imputed to the plaintiff was a necessary conclusion.

It was also insisted that negligence, as a question of fact, ought not to have been submitted to the jury at all, but as a question of law ought to have been determined by the Court. But when the facts upon which the charge depends are disputed, negligence is what is termed, in many cases,—although improperly,—a mixed question of fact and of law, that is, the jury are to ascertain the facts, and the judge must instruct them as to the rule of law which they are to apply to the facts as they shall find therm And it is exactly this course that was followed in the present case. The judge charged the jury “ that if the information communicated to the plaintiff was communicated by the authority of the defendants, and was so communicated as that it was understood by the plaintiff, so that he had fall notice that there was a safe in the office appropriated to the safe custody of valuables, it was negligence, considering the amount of money which he had, not to have intrusted it-to-the safe.” The jury in finding that the plaintiff was guilty of negligence, we are bound to presume found all the facts which the Judge had told them were necessary to be proved to justify the charge, and they drew from those facts the exact conclusion which the Judge had instructed them to draw.

It was, however, insisted by the counsel for the plaintiff that the Judge erred in his charge in submitting to the jury the question whether the communication made by the waiter to the plaintiff was made by authority of the defendants, since there is not a scintilla of evidence in the case to show that any such authority was in fact given. That there was no proof of an express authority is certain, and if such an authority was necessary to be proved, -in order to discharge -the defendants, the. objection of the counsel is unanswerable—but we cannot think that any such proof was necessary. The authority of the waiter sprung from his relation to the defendants. In making the communication in question, he consulted their interests, and sought to protect them against a loss to which they might otherwise have been possibly liable. He was therefore acting in the discharge of a duty, which, as a servant, he owed to the defendants as his masters, since he was doing that which it was certain that they, with a knowledge Of the facts, would have wished and directed him to do. We apprehend that in all cases where an agent or servant without any prior authority, performs a needful act, which it was for the manifest benefit of his principal or master should be performed, the assent and authority of such principal or master to the performance of the act will be implied) and an opposite doctrine, it seems to us, would be highly unreasonable. In the law of Marine Insurance the doctrine of an implied authority is of frequent application. In many cases an insurance made by an agent having no prior order or direction to insure is held to be valid, and the ground upon which in all these cases a prior authority from the principal is implied is the same, namely, that the act of the agent was so manifestly for his benefit, as to render it certain that had the circumstances been known to him in time, he would himself have effected or directed the insurance. In the observations that we have made on this question of authority, we are not to be understood as saying that if the information given to the plaintiff had been communicated to him by a person not in the employ of the defendants—another guest for example—it might not have been deemed sufficient to charge Mm with actual notice.

The only question that remains upon the special finding of the jury, is whether the defendants are to be held liable for the loss that is claimed, upon the sole ground that the notice required by the statute was not at the time of the loss posted up in the bedroom of the plaintiff, although he had actual notice of all the facts, that a notice so posted up would have contained. Unless the affirmative of this proposition is true the plaintiff cannot be entitled to recover; that it is true we find it impossible to believe." We shall admit that the notice given by the waiter to the plaintiff would not have been sufficient to discharge the defendants at common law, notwithstanding the charge of the judge and the finding of the jury, upon the question of negligence, but that the notice was rendered sufficient by the act of the legislature, not indeed by its terms, but by its reasonable, and as it seems to us, even necessary construction, we do not at .all doubt. The notice which the statute requires is merely constructive, since it is evident that .a notice posted up in the room of a guest may wholly escape his attention, yet he is not permitted to .aver his ignorance, but is bound by that presumption of his knowledge which the statute raises. When the facts raising the presumption are proved, his recovery is barred. It is true, the statute is silent as to' the effect of actual notice, but we cannot believe that the legislature intended that a greater effect should be attributed to the' presumed knowledge of a guest than to its actual proofs—that while the presumption bars his recovery, the proof must be. rejected or disregarded. Such, a construction of'.the intention of the legislature would be most-unreasonable, and: although that which we believe to have been its true intention is not. expressed, we cannot but think that it is necessarily. involved in that which is expressed, and the meaning, of the statute we hold to be,—that the knowledge of a guest who has failed'to' deposit his money, or jewelry, in a safe, that he knew to have been provided, shall defeat his claim for a. subsequent loss, and that such is its consequence, whether the knowledge be established by direct and positive, or merely presumptive evidence; ¡Nor do we suppose that.such a construction is confined tó the statute under consideration. The rule, we think, may be' stated as universal; that when a statute declares that certain acts shall create a-presumption of knowledge, which the party to be affected by the knowledge is not permitted to repel, it declares by a necessary implication, that the party’s actual knowledge of the facts to which the presumption relates, is just as admissible in proof, and when proved is equally conclusive. Of the application of the rule, the actual knowledge of a subsequent purchaser of an unrecorded deed or mortgage is an example. If it be said that such a purchaser is not a purchaser in good faith, the reply is that there is a similar want of good faith in a guest who, with a full knowledge that a safé had been provided for the purpose for which it was provided, seeks to deprive.an inn-keeper of the protection that the legislature meant to afford him upon the sole ground, that the terms of the statute had not been literally complied with. The notice given to the plaintiff in this case, the jury have in effect found, contained all the information that a notice posted up in his room, if read, would have conveyed to him, and we are clearly of opinion, that in disregarding such a notice, the plaintiff acted at his peril, and took himself the risk of any subsequent loss.

The verdict must, therefore, be set aside, and a judgment with costs be entered for the defendants.

       The reader will find this subject discussed and the cases collected in 2 Duer on Insurance, p. 132, III.


source: Caselaw Access Project

author: Bv the Court. Woodruff, J.

license: Public Domain

text:
    Carlos A. Butler, Plaintiff and Respondent, v. Morris, impleaded, Appellant.
    When two persons are made defendants, and sued as joint makers of a promissory-note, and they answer separately, and one of them pleads infancy as his sole defence, they thenceforth cease to be “united in interest,” within the meaning of those words as used in § 306 of the Code.. In such a case, the Judge at the trial, on the fact of infancy being proved, may, in his discretion, permit the plaintiff to discontinue the action, as against such infant, without costs.

      Held, that such permission was properly given in this action. The judgment and order appealed from affirmed with costs.
    (Before Duer and Woodruff, J.J.)
    Heard, April 15;
    decided, May 30, 1857.
    This action comes before the Court at General Term, on an appeal by the defendant Morris, from the judgment, which is in favor of the plaintiff against Ackerman alone, and orders a discontinuance by the plaintiff as against Morris, without costs.
    The action is against the defendants, Sylvanus Morris and John Ackerman, as joint makers of two promissory notes. The defendants put in separate defences by separate answers. The defence of Morris was infancy at the time of the making of the notes. The plaintiff went to trial against both defendants. The action was tried in March, 1857, before Chief-Justice Oaklet and a jury.
    On the trial, the plaintiff having proved and read the noted in evidence, the defendant Morris proved, by his father, that he was an. infant at the time the notes were made. Thereupon, the plaintiff moved for leave to discontinue the action as to the defendant Morris, without costs. The Chief-Justice granted the motion, against objection by Morris’s counsel, who excepted to the decision, and from the judgment in favor of the plaintiff against the other defendant, and ordering a discontinuance as to Morris, without costs, the latter appealed to the General Term.

      Wm. H. Taggard, for appellant

      cited (inter alia) 13 Barb. 187; 2 Cow. 503; 5 J. R. 160.

      Q. McAdam, for respondent
    cited 1 Cow. 417; 13 Barb. 540.
   Bv the Court. Woodruff, J.

Before the Revised Statutes, permitting a plaintiff to discontinue, without costs, where one of two defendants, sued upon a joint contract, interposed a plea of infancy, discharge as an insolvent, &c., appears to have been regarded as resting in “sound legal discretion.”

When a sole defendant obtained an insolvent’s discharge pending the action, the plaintiff was permitted to discontinue without costs. (Hart v. Story, 1 Johns. R. 142; The Pres't, &c., of the Merchants' Bank v. Moore, 2 J. R. 294.)

But in such case it was held, that if the plaintiff, knowing of the defendant’s discharge, will nevertheless go on with the suit, he must, if he afterwards discontinue, pay costs, that is to say, all the costs to which the defendant was subjected after such discharge. (Ludlow v. Hackett, 18 J. R. 252; Merritt v. Arden, 1 Wend. 91.)

In Ex parte Nelson, 1 Cow. 417, the Court of Common Pleas, in an action of assumpsit against two defendants Upon a joint note, allowed the plaintiff, on the trial, to enter a nolle prosequi without costs, as to one defendant who had pleaded and proved his infancy. The Supreme Court refused a mandamus to compel the Common Pleas to allow costs to such defendant, on the ground that it was so far a matter of discretion that a mandamus would not lie, even if the order was improper; the writ of mandamus ..being appropriate only where the party has a strictly legal right, and no other legal remedy. Whether a writ of error would lie in such case, they do not distinctly decide, but they pretty clearly intimate that the discretion of the Court below was properly exercised.

The Revised Statutes committed the subject fully to the judgment of the Judge before whom the trial should be had, in all actions upon contract where there was more than one defendant by providing, that if the plaintiff fail to recover against one, or judgment be rendered in favor of one on plea in abatement, or on demurrer, or by the plaintiff’s discontinuance, such defendant shall not be entitled to costs, unless a certificate be given by .the Court before whom the trial shall be had, &c., &c., * * that such defendant was unnecessarily and unreasonably made a party to such action. 2 Rev. St. [616] Pt. 3, ch. 10, tit. 1, § [20.]

Had the present question arisen under the Revised Statutes, it would have been entirely clear, therefore, that the defendant, Morris, is not entitled to costs; no such certificate was, nor under the views governing the Judge at the trial could have been had.

So that if we could adopt the view urged upon us by the counsel (in citing other sections of the same chapter), that the provisions of the Revised Statutes relating to this subject are still in force, we must hold that the appellant is not entitled to costs.

We are, however, of opinion that the Code has superseded that chapter of the Revised Statutes, and that the correctness of the judgment and order appealed from must be decided according to the true construction of the provisions of the Code.

Prior to the amendments of 1851, it was repeatedly held, that in actions against two or more defendants, if the action was what would have been deemed an action at law, if the plaintiff 'failed to recover judgment against all of the defendants, those against whom he did not recover were entitled to costs as a legal right— and that the discretion given by § 306, applied to equity suits only.

But in 1851, by the words “in all actions,” the Legislature have given to the section a more comprehensive meaning than it was before supposed to import.

Now, “ in all actions where there are several defendants" not united in interest, and making separate defences by separate answers, and the plaintiff fails to recover judgment against all, the Court may award costs to such of the defendants as have judgment in their favor or any of them.”

If, under this section, the allowance of costs lay in the discretion of the Court, we do not hesitate to say that we should not interfere therewith! If the facts appearing on the trial'were, as seemed to be conceded on the argument of the appeal, the language of Savage, Ch. J., in Ex parte Nelson, seems singularly apt to the present case; “the defendant asks for. costs with á very ill grace when he. has first palmed himself'upon the plain: tiff as an adult, and thus obtained his property,' and then pleads infancy in his discharge.”

The case before us is an action in which. there are several defendants, making, separate defences by separate answers, and the plaintiff has failed to recover judgment against all. It only remains, then, to consider whether these defendants were “united in interest,” within the meaning of § 306.

If they were not,'then it was not erroneous in the Judge to deny costs to the appellant. If they were .united in interest, then the terms of the previous sections, 304 and 305, give costs to the appellant, as matter of right, and we must reverse the judgment in this respect.

Prima facie, the defendants were jointly interested in defeating a recovery. The liability upon the notes was in form joint, and prima facie, a judgment thereupon would bind both defendants, and their joint property, if any, and the several property of each; and if either paid, the judgment, the other would be bound to contribute his share in reimbursement. So that there was upon the face of the notes an apparent and complete union of interest in the two defendants.

But I apprehend, that this is not conclusive; if, in truth, the two defendants were not united in interest under the issues made between the parties, there is room to satisfy'the terms of the section, and preserve to the Court a highly just and equitable discretion to relieve the plaintiff ffom paying costs.

.According to the decisions before the Code, the plaintiff-was bound by law to make Morris a defendant, (even though he knew all the facts,) and yet against him, upon .the answer wMch he put m, the plaintiff could by no possibility recover.—Van Premier v. Cooper et al., 2. J.,R. 279. JTartness v. Thompson et. al., 5 J. Ri 160. Mason'y. Denison et al., 15 Wend. 64.

Whether the plaintiff was, under the Code, bound to make the infant a party defendant, though he knew him to.be an infant, it is not necessary for us to decide. The decision in Slocum v. Hooker, 13 Barb. 536, is, that the rule is the same now as it was before the Code was enacted.

The moment the defendants severed in their defence, and the appellant rested upon his plea of personal exemption from liability, the interest of the defendants not only ceased to be even prima fade united, but became clearly adverse to each other. If he succeeded in establishing his infancy; the whole liability was cast upon his co-defendant, who must pay the whole without a right to require contribution from the appellant. And on the other hand, (his infancy being, so far as appears by the case, his sole defence) if he failed to establish his infancy, judgment must go against him, and it may be (as the defence of the other defendant is hot before us,) whether the co-defendant established his defence or not.

The appellant proved the infancy he had alleged, and then, not merely according to the state of the pleadings, but according to facts established, the defendants were not united in interest, and therefore, when the order was made, it appeared that the parties, according to the very truth of the matter, were not united in interest when the action was commenced.

In this action, then, upon the issues made by the parties, as the same came before the Court for trial, and upon the facts established by the evidence, the interest of the two defendants was diverse and antagonistic. I think that this may properly be held, to satisfy the words “not united in interest,” in the section under consideration. This construction is far the most reasonable, and better enables the' Court to do justice. I am quite unwilling to believe that the Legislature intended to deprive the Court of the power to permit a discontinuance without costs, where an insolvent’s discharge was obtained, pending an action ; or where an infant concealing his infancy, makes a contract whereby he obtains the money or properly of another who learns, for the first time, after action brought, that he has dealt with one who has not legal capacity to make a binding contract. And yet, if this power is not derivable from section 306,1 do not find that the Court could permit, such a discontinuance, though proposed at the earliest moment the facts were discovered, (By this, I of course do not mean that if the defendant came to ask leave to interpose such a plea after having once answered, a condition might not be imposed involving such a privilege.)

The construction of the section, (306,) which I have above given, is intimated in Slocum v. Hooker, in the opinion of Justice Parker, 13 Barb. 541, who says on this subject, in reference to the discretion given by the Revised Statutes, that under § 306, there is room for the same exercise of discretion.

It was urged on the argument that the plaintiff should have discontinued so soon as he received the answer, and should not have put the defendant to the necessity of proving its truth. There may often be cases in which the plaintiff is perfectly aware of the infancy of one of the defendants, and makes him a party only because the contract being joint, and as to the infant voidable only, he cannot know whether he will set up such a defence; and in such cases the Court might feel it just to give costs to the infant, if knowing the truth of the answer, the plaintiff put the defendant to the expense of proving it. But I cannot sanction a precedent which would require a plaintiff, in all cases, to take the word of the infant, and abandon the prosecution, because the defendant says that he is such infant, and therefore not bound by his contract. The plaintiff may, frequently, have convincing reasons for believing that the answer is untrue—these may sometimes be representations of the defendant himself when making the contract—or his long continued holding himself out as an adult, carrying on business as such, and with a personal appearance warranting the plaintiff’s belief.

Such circumstances may properly be considered by the Court, when leave to discontinue is applied for, and doubtless such, circumstances were properly considered in the present case,

I think the judgment and order should be affirmed.

Ordered accordingly.


author: By the Court. Woodruff, J.

text:
    Charles S. De Zeng et al., Respondents, v. John Fyfe, Appellant.
    The maker of a promissory note for the accommodation of the payee, cannot set up as a defence, in cases exempt from fraud, that the note was transfem plaintiff in satisfaction of or as collateral security for a pre-existing debt.
    (Before Duer, Slosson, and Woodruff, J.J.)
    Heard, April 13;
    decided, May 30, 1857.
    This action comes before the Court at General Term, appeal by the defendant from a judgment in favor of the tiff, entered on the verdict of a jury.
    This action was brought to recover the amount of two promissory notes made by the defendant, payable to the order of Stebbins, Garabrant & Co., and endorsed by the payees to the plaintiffs. It was tried before Mr. Justice Slosson and a jury, in February, 1857.
    The defendant proved on the trial that the notes were made without any consideration for the “ general accommodation of the payees, to be used by them in their business without any restriction as to their use.”
    The defendant then offered to prove “ that the payees of the note (Stebbins, Garabrant & Co.) were owing to the plaintiffs a debt of $1000, for which they had given a check which had been dishonored, and that-the plaintiffs called upon the payees for . payment of such check, and they turned out to the plaintiffs the notes of the defendant now in question. That the plaintiffs did not surrender the check, but have repeatedly asked for payment since. That at the time the check was made, and also when the notes were made, Stebbins, Garabrant & Co. were insolvent, and have continued so ever since, and that the plaintiffs have given no other consideration for the notes.”
    Upon an avowal by the defendant that this was all he proposed to prove, and upon objection by the plaintiffs that this proof would constitute no defence, the judge rejected the evidence, and the defendant’s counsel excepted. A verdict for the plaintiffs was then rendered, and from the judgment entered thereon the defendant appealed to the General Term.
    Wm. M. Allen, for appellant.

      Geo. F. Chester, for respondents.
   By the Court. Woodruff, J.

The only point to which our attention was called, on the argument of this appeal, is the rejection of the evidence offered by the defendant. His counsel insists that the evidence should have been received. While, on the other hand, the plaintiffs insist, that had testimony been given, establishing the facts stated in the offer, no defence would have been made out, and no question would have been raised thereby, which it was proper to. submit to the jury.

The facts proved, and the facts which the defendant offered to prove, raise this single question:

When a note is made by a defendant for the accommodation of a payee, and he delivers it to the payee for his use, without any qualification or restriction, and such payee passes it to the plaintiff as security for a pre-existing debt, can the plaintiff recover thereon against the maker ?

It seems to us that there can be no doubt upon this subject. Indeed, we are somewhat at a loss to discover grounds upon which the maker in such case should hesitate to pay the note, or deem himself in any degree excused, if he refuse.

He lent his notes for the very purpose of enabling the payees to use his credit in any manner which the exigencies of their business required or made convenient to them. The notes were used accordingly. The payees had full authority to use them, and we know of no reason or principle upon which the notes might not as well be given out as security for a debt, as discounted to raise money to pay the debt. The result in each case is precisely the same to the maker. The notes serve a useful purpose to the payees, and, for aught that appears, a purpose within the intent for which they were made by the makers.

' The cases to which we were referred by the counsel for the defendant, do not sustain the defence. They are instances of the fraudulent misappropriation of a note,, or where there was some fraud in procuring it, or where there existed some circumstance in the relation of the parties which would make its collection operate as a fraud upon the maker. (20 J. R. 637; 10 Wend. 85; 12 Ib. 593; 13 Ib. 605.) The case, which has become somewhat prominent in the history of this subject, Stalker v. McDonald (6 Hill. 93), was a case in which the transfer was a plain fraud upon the plaintiff, the owner of the note, for the recovery of which the suit was brought, and although in that as also in some of the other cases, dicta may be found general in their form and sufficiently broad to warrant the claim here made by the defendant, the cases themselves do not warrant any such defence. The case of Skilding et al. v. Warren (15 J. R. 270), in some of its particulars, resembles the present. That was an action upon an accommodation note, but it was fraudulently transferred, and the plaintiffs received it with knowledge of the fraud.

On the other hand, the very point was distinctly decided against the defendant in Grandin v. Le Roy (2 Paige, 509), where the Chancellor held, that where the endorsers of an accommodation note lent their names to the maker, without any restriction as to the manner in which the note should be used, he had a right to use it to pay or secure an antecedent debt.

In The Bank of Rutland v. Buck (5 Wend. 66), it was held, that a surety to a note for the accommodation of the principal, is liable upon it when passed away as collateral security for the payment of a judgment. (See also 4 Cow. 567; White v. Springfield Bank, 3 Sandf. S. C. R. 222.)

The decision of this Court in Lathrop v. Morris, in 5 Sandf. 7, is wholly inconsistent with the views insisted upon by the defendant’s counsel. The principle of that case is, that one who receives a note, either in payment or as collateral security for a pre-existing debt, is entitled to recover against an accommodation maker, in cases exempt from fraud; and this principle is there treated as fully settled.

It is hardly necessary to add, that the judgment must be affirmed.

Possibly some question might have been raised, whether, upon the facts testified by the payee, the plaintiff was entitled to recover for a greater sum than the debt for which the note was held as security. But no such question was raised on the trial, nor was it suggested on the argument of the appeal. Judgment affirmed.


text:
    Eveline Peacock, Executrix of John C. Ryan, deceased, and David C. Peacock, Respondents, v. The New York Life Insurance Co., Appellants, &c.
    When a life policy of insurance is renewed, the policy itself the representations made by the assured when the policy was effected, and the certificate of renewal are to be construed together, and to receive, if possible, a consistent interpretation.
    As the design and object of the parties is to renew a pre-existing contract, the terms employed will not be deemed inconsistent with the conditions of the policy, if they reasonably may be construed in harmony with them.
    Hence, when the policy is renewed, upon the condition that the assured is then in “good health,” the words, “good health,” in the certificate of renewal, will be construed in the same sense as the same words in the representations made by the assured, when the policy was effected, and which were declared to be “the basis of the contract.”
    Ifj therefore,- the health of the assured, when the policy was renewed, was substantially the same as when it was effected, and he was then subject to no other complaints than those he had before specified, the insurers, in the event of his death, will not be excused from the payment of the sum insured, upon the ground that his health, when the insurance was renewed, was not positively and absolutely good.
    When the preliminary proofs, furnished in good faith, to an Insurance Company, are defective, the Company is bound, in common fairness, to suggest the defect, and not hold it in reserve, in order to delay the payment of a loss, or compel a new suit for its recovery.
    (Before Duer, Slosson, and Woodruff, J.J.)
    Heard, April 16;
    decided, June 13, 1857.
    This action comes before the Court, at General Term, on a motion, by the defendants, for a new trial, on questions of law, arising upon exceptions taken at the trial, and there ordered to be heard in the first instance at the General Term, and the entry of judgment to be, in the mean time, suspended; (the plaintiff having recovered a verdict for $5-865 28). The action was brought to recover the sum of $5,000 (with interest), insured by the defendants upon the life of John C. Ryan, deceased.
    The policy is dated the 8th day of March, 1853; premium $160 per annum, payable in advance on the 28th day of February in each year.
    The policy was conditioned, among other things, that if the premium was not paid as prescribed, the defendants were not to be bound by the policy. The assured, before obtaining the policy, made certain declarations in regard to his habits and health. The assured did not pay the premium, which fell due the 28th of February, 1854, when due. The defendants accepted the premium on the 7th of March, 1854, and renewed the policy upon this condition, “ that he (the insured) is no w in good health; proof of which, in case of death, to be furnished the Company.” The assured died 22d May, 1854. May 29th, the defendants were served with affidavits of Caleb Barstow and Henry E. Blossom, stating the death of the assured, and the disease to which they attributed his death.
    The declarations made by the assured when the policy was effected, are stated in the points of the defendants’ counsel, and in the opinion of the Court. When the policy was renewed, the assured stated, in a letter to the President of the defendants’ Company, “that, as to his health, he was better off than when he got the policy.”
    The defence was, that the defendant was not in good health when the policy was renewed, and that no preliminary proofs had been furnished.
    The issues raised by the pleadings were tried before Mr. Justice Bosworth and a jury, in January, 1857.
    A number of witnesses were examined to show the actual state of the health of the assured, when the policy was renewed, and it" was proved that the renewal was on the condition that he was then “in good health.”
    When both parties rested, the defendants moved for a dismissal of the complaint, on the ground that the plaintiff was obliged to produce to the defendants preliminary proof of the health of the assured, at or before the time of claim made for the amount insured by the policy, and that it did not appear that such proof had been furnished.

      . i The Judge denied the motion, and the counsel for the defendants excepted.
    : His Honor, the Judge, then charged the jury, and among other things charged: -
    That the policy on which the suit was brought had a condition by which it was forfeited if the premium was not paid on the 28th February; that the premium was not paid on that day ; that the Company had a right to insist on the forfeiture, or to accept the premium and waive it, and that on such conditions as they saw fit.
    That they did in fact receive it, and on the terms expressed in the' receipt of March 7th; on the condition, that John C. Ryan was in good health, &c.. That the only question was, whether he was in good health when the parties finally agreed, the one to leave, and the. other to retain the premium.
    ■ That in determining what was good health, in the understanding of the' parties.to the contract,'.they must''take into view the declaration on which the policy was. made. That declaration showed his' condition as to health, and that "was adopted as the basis of:the contract; so that the question was, whether, at the time of the premium being paid and retained in March, the "said Ryan was in good health, within the meaning of those words, as used by the parties to this contract.
    If you shall find, that on the seventh of March, he was not affected with, any diseases, .other" than those mentioned in the declaration on which the policy was issued, which, in the judgment of those conversant with such subjects, would tend to shorten. human life, or increase the risk, and that those "diseases had not become aggravated so as to -make his condition substantially different fiom what it was when the policy was effected, then he was -in good health, within the meaning of those words, as used by the parties, and the plaintiff was entitled to recover.
    If you shall find-otherwise, your verdict must be for the defendants. „
    The defendants’ counsel, beforé the jury- retired from the Court, excepted to the judge’s charge in the following parti; culars:

      1st. To the part in which the judge charged that in deciding what the parties understood by good health, the jury would bear in mind the representations which were made by John 0. Ryan, at the time of making the application for the policy.
    2d. To the part in which the judge charged, that if on the 7th* of March, 1854, John C. Ryan was not affected with any other diseases than those mentioned in Ms application, wMch m the judgment of those conversant with such diseases, tended to shorten human life or mcrease the risk; and if those diseases mentioned in the application of Ryan were not on the 7th day of March, 1854, so aggravated as to make Ms condition substantially different from what it was when the policy was effected, the plamtiffs were entitled to recover.
    The jury retired under the charge of an officer, and returned into Court and rendered their verdict m favor of the plaintiffs, and against the defendants, for the sum -of five thousand eight hundred and sixty-five dollars and twenty-eight cents.

      J. Miller, for the defendants,
    m movmg for a new trial, made and argued the following pomts:
    I. No proof, before action brought, of the state of health of the rnsured on the 7th day of March, 1854, (at wMch time the policy was renewed) was made or furnished to the defendants, m compliance with the condition of the renewal. The motion to dismiss the complamt on that ground should have been granted, and the exception to the rating of the Judge in that respect was well taken.
    • It was not 'the case'of a defect of preliminary proof, wMch the defendants should have pomted out, but a failure of the production of any proof whatever, and it does not appear that the defendants did any act wMch amounted to a waiver of such proof.
    II. The charge of the Judge in the particulars , excepted to was erroneous.
    Good health, as used m the condition of the renewal of the 7th of March, 1854, is to be taken positively in the common acceptation of the terms, and not by comparison with the health of the rnsured at any previous period.
    Suppose the insured in his declaration had answered he was m bad health, and the defendants had made the policy notwithstanding, but on the renewal had required as a condition of such renewal, that he was then in good health, could it be maintained that the good health named in the condition of renewal meant bad health, because the defendants had made a policy originally, notwithstanding the insured was in bad health ?
    There is no legal presumption that the defendants would not have originally made the policy in question, unless the insured had been in good health.
    Ho proof or presumption is given, or arises, of any agreement or understanding between the parties defining the meaning of the terms good health, inconsistent with the general meaning of those terms.
    The only legal "inference is, that the defendants were at the time of making the policy willing, notwithstanding the various ailments disclosed in the declaration, to make it.
    But that fact is not evidence of their willingness to renew the policy after forfeiture, on the existence of the same state of facts in regard to health.
    If the defendants had so intended, instead of the condition that the party is now in good health, the condition would have been that the party is now in as good health, as he was at the time of issuing the policy.
    The insured might, or might not, at the time of the renewal, have been cured of the ailments with which he was afflicted at the timé of making the policy; of this he was to judge.
    If by reason of those ailments he was not in good health at the time of making the policy, he might, perhaps, notwithstanding have recovered, if he had kept all the other conditions.
    But having forfeited the policy by non-payment of the premium, the defendants had the right to say, as they did, although we originally insured your life, when you were afflicted with ailments that impaired your health, we now require as a condition of renewal that you are in good health; you may, or not, accept our terms. The insured, by paying the premium and accepting the renewal, agreed to the new terms and conditions, and his legal representatives are bound by them.
    The parties themselves, at the time of the transaction, put a construction upon the terms, good health. The insured in his letter said he would not receive the renewal with the condition annexed, and the defendants thereupon offered to return the premium, if the insured was not willing to take a renewal of the policy upon the condition.
    If the insured understood it to mean such health as he was in at the time of issuing the policy, he would not have remonstrated, for he says in express terms, “ I am now better off than at the time I got your policy.” The insured, therefore, must have understood the terms “ good health,” as used in the condition of the renewal, to be a positive thing, which the defendants required to exist, and not by comparison, as good, or a better state of health than when the policy was issued, and with that understanding he accepted and retained the renewal. The verdict should be set aside and a new trial granted. ”

      D. Lord, for the plaintiffs,
    made and argued the following points: l. By the declaration of health on which the policy was effected, the parties made a standard of good health, as to the party to be insured.
    Perfect physical condition is not, in Life Insurance, the standard of good health. (Ross v. Bradshaw, 1 Bl. R. 312; Willis v. Poole, 2 Marshall on Ins. 770; see eases, 2 Park on Ins. 932, and Watson v. Mainwaring, 4 Taunt. R. 763.)
    II. The inquiries made and answered related to causes supposed to be permanent and to bear on the goodness of health, from the susceptibility they are supposed to leave in the subject.
    m. The answers in the declaration of health, show the following facts, as to the health of the insured, adopted as insurable good health in this case, namely:
    Q. 6. That he had not been always sober and temperate; that he had lived freely some years since, but not so now; thinks himself sober and temperate.
    Q. 9. As to serious illness:—That he had had dyspepsia and piles, and one summer, bilious fever.
    Q. 10. That he was subject or predisposed to bleeding piles occasionally, &C-.
    Q. 11. That he had had palpitations and nervousness, but not for many months.

      Q..12. That he was subject to temporary colds, but was about as well as he ever was.
    It also appears that-the insured had a personal interview with the defendants about the 16th March, 1854, in which the plaintiff spoke of being ill and irritable.
    IV". Under these facts, the declaration as to good health, both at the time of the insurance and of the renewal, must be deemed satisfied, as "between these parties, by a state of health subject to the drawbacks stated in the declaration of health; otherwise, the defendants, were receiving a premium for which they undertook no risk. -
    Y. The charge óf the Judge left the question of good health' to the jury,' under.no other qualifications than werecontainedin the declaration, of-health.-
    Compare the charge with the declaration of health.- -
    YL The objection on the trial, as to want of proof of health, as preliminary proof was rightly disregarded. .
    ■ 1. The requirement of preliminary'proof in the policy is only of death, not: of the state of health.
    2. The receipt given by the boy who took' the check, never appears to-have been known to the insured, dr his' representative's. '• •
    ; 3.' And, the personal presence, at the office, of the insured was a sufficient exhibit of the subject as to health, under the declaration.
    4. And chiefly, the defendants never called for such certificate, and so waived it, even if it had been strictly preliminary proof required in the policy. (Bumstead v. The Dividend M. Ins. Co., 2 Kernan, 81.)
    5. The Court, even if they could imply a condition in the contract, that such a certificate should be produced, would not imply that it must in all cases be made without a demand or call for it: there is no evidence of any such demand.. '
    Judgment.for the plaintiffs, on the verdict,- should be ordered.
   By the Court. Woodruff, J.

The policy of insurance— the representations which are declared to be the basis of the contract' of insurance, and the certificate of renewal must be construed together. This is only in accordance with the necessary intent of the parties. The very term renewal, or “ renewed,” imports the continued existence of the previous contract, and necessarily refers to its provisions. If there is nothing expressed in the terms of renewal inconsistent with the pre-existing agreement, or the conditions in reference to which it is made, then clearly the act of renewal brings again into full legal effect all the terms of the previous policy, subject to the conditions upon which it was made, and to those conditions only.

To this may be added, that the design and object being to renew a pre-existing policy, the terms employed to effect that object will not be deemed inconsistent with the conditions of such policy, if they may reasonably be construed in harmony with those conditions. The nature of the transaction indicates an intent to continue the former contract without modification, unless the terms of renewal show a different purpose.

And, again, it is a reasonable presumption that the same terms employed by the parties in the original contract are used in precisely the same sense, when they appear in a certificate of the renewal of that contract.

If these observations are well founded, they are pertinent to the appeal under consideration, and would seem decisive in their application to the case. And they are especially appropriate in a case in which the whole object of the so called renewal .was to waive a default in not paying the premium on the precise day it became due, a default arising from inadvertence.

The original policy was made upon an express condition, that if the declaration of the assured made on his application for insurance, should be found in any respect untrue, such policy should be null and void.

The declaration so referred to contained the representations of the assured respecting his health, and after referring to past habits of indulgence, states that he had had no sickness other than dyspepsia, and piles, &c. That he has bleeding piles occasionally ; that he has had palpitations and nervousness, but not for .many months; and in answer to a specific question, “is the said party now in good health? answers, about as well as I ever was, except temporary cold; and it then concludes, that “I am now in good health, and do ordinarily enjoy good health;” and it is then agreed that this declaration and the accompanying proposai “ shall be the basis of the contract” between the assured and the defendants.

The certificate of renewal, which was the only evidence of the renewed undertaking which the defendants furnished to the assured, after acknowledging the receipt of the premium for the second year, contained the words, " renewed on a health certificate.’’

If no further explanation had been sought or given, it would be difficult to say,- that this language imported anything more than that the company had received a certificate, in regard to the health of the assured, which was such that they had consented to renew the policy, and did renew the policy, and waive the default in not paying the premium on the day it became due.

But the matter .did not rest there. The assured, conscious, no doubt, that no actual certificate had been furnished other than his original declaration above referred to, sought an explanation, giving the cause of the.default (imputing it to the neglect of the defendants’ agent), stating that he would give no further explanation as to his health, other than to say that he thought he was better off than when he received the policy. The explanation of the defendants, therefore, is in substantially the terms which formed part of the original declaration which was made “the basis of the contract,” viz. that the condition of renewal was that the party insured is in “ good health.”

Asan min g that by this explanation, or by the terms of the memorandum subscribed by the person who carried the check for the premium to the defendants, that good health thus became a condition of the renewal, we cannot find any ground for saying that it had any other or different meaning in the-renewal than it had when made the very “ basis of the original contract.” These words in the contract of renewal were used in reference to the same subject between the same parties, in view of the continu: anee of the same contract, which was to have the same legal effect and operation in the fixture. There appears no reason why the parties should have used or understood them in any different sense at the one time rather than at the other.

We cannot say that “ good health” has so definite a meaning that it admits of application to only one physical condition. Its ordinary use in the community does not probably import a perfect physical condition once in one hundred times. And when we place ourselves in the precise condition in which the parties themselves were when the renewal was made, with the previous declaration before us, in which good health, as agreed to in the original policy, meant just such health as the original declaration of the assured described, (in very terms “ now in good health,”) we cannot hesitate to say that “ now in good health,” when made a condition of the renewal of the same policy, meant precisely the same thing.

The finding of the jury, then, that the assured was, when the policy was so renewed, in respect of health or disease, in a condition not substantially different from what it was when the policy was effected, seems to us fully to satisfy the condition of the renewal. And these views necessarily dispose of the objection to evidence on that subject, and the exception to the charge of the Judge on the trial.

The remaining "exception rests upon the alleged insufficiency of the preliminary proofs in this particular; that, before suit brought, the plaintiffs did not lay before the defendants proof that, at the time of. such renewal, the assured was in good health, &c.

Although there is room for doubt whether the memorandum signed by Wm. W. Wilson, the person who took to the company the check for the premium, had any operation upon the plaintiffs’ rights whatever, (it not appearing that he had any authority to do anything more than deliver the check,) still we do not think it necessary to rest our decision of this exception upon that ground. The fact nevertheless exists, that the defendants did not insert any condition, (that any such preliminary proof should be furnished), in the receipt they gave to the assured as his voucher for the contract into which the company then entered, and when the president in writing explained the alleged conditions of renewal, he does not intimate that the furnishing of any such preliminary proof is required. And there is nothing whatever to show that the assured, or his representatives, were ever informed of the contents, or even the existence of any such memorandum as that signed by Wilson. The assured had himself been at the defendants’ office, and the state of his health had been the subject of conversation.

Under such circumstances we greatly doubt whether the company had' any right to require such preliminary proof. But if they had, we are quite clear, that when the preliminary proofs were furnished, if they were deemed defective in that particular, the attention of the plaintiffs should have been called to it, or the defect.must be deemed waived; and this.we should hold, even if the preliminary proofs which were furnished were altogether silent upon the subject. On this subject, fair dealing requires reasonable frankness and candor from the insurance company, and so much-the law does and ought to require. The defendants are allowed sixty days after the preliminary proofs are ftirnished, before they can be required to pay.- When, therefore, what are in good faith presented to them as preliminary proofs, are in any respect defective, common fairness requires that such defect be. suggested, and. that it be not held in reserve, to be used afterwards to obtain further delay of payment, or to defeat a suit brought for the money.

But when these preliminary proofs (viz.the affidavit of Messrs. Barstow and Blossom), are read in connection with the fact that the death was only about two months after the renewal, and that the affidavit distinctly refers to the same diseases (as the cause of his death) which are mentioned in the original declaration; (the basis of the policy), and states that he had not been considered dangerously sick more than a week: it is not too much to say, that here is a plain implication that might well be deemed by the company to satisfy their requirement.

Having themselves seen the assured after the renewal was made, in their office, and conversed with him on the subject, and being now furnished with'the affidavit of two persons, that though his disease was of the character from which he suffered even when the policy was originally effected, yet he had-not been considered dangerously ill more than a week, they, had no occasion to require any other or further evidence, that.at the time of the renewal, two months before, he was in the good health contemplated by the policy and its conditions. Although the affidavit is not specific to the point, there "was enough-in it to invite the attention of the company thereto; and if they were not satisfied, they should have suggested the objection.

Judgment must be entered for the plaintiffs upon the verdict.


author: By the Court. Hoffman, J.

text:
    Joseph Lovell and James Colles, Jr., Respondents, v. John Orser, Sheriff, &c., Appellant.
    In an action against a Sheriff,, for the escape of a party, in his custody under an execution against the body, it is not a defence, that the attorney of the plaintiff consented that such party might go to another place, out of the bailiwick of said Sheriff, in order to attempt to raise money, with which to pay the judgment on which the said execution was issued.
    (Before Duer, Ch. J., and Hoimas, J.)
    Heard, May 21;
    decided, June 13, 1857.
    This action comes before the Court at General Term, on an appeal, by the defendant, from a judgment rendered against Mm at Special Term.
    It is an action for an escape. On the seventh of June, 1853, the plaintiffs in this action commenced a suit in this Court against Hubbard and Barton, and obtained an order for their arrest, directed to the defendant, as sheriff, and, as appears by the defendant’s official certificate, they were, on the same day, arrested. Judgment in favor of the plaintiffs in that action was perfected, July 5, 1853, and an execution against property was issued thereon, and returned nulla bona. Thereupon an execution against the body was issued on said judgment, to, and was served by the defendant as sheriff, and Hubbard and Barton were arrested thereon, and gave bail for the limits. In May, 1854, Hubbard escaped, and this action was brought. It was tried without a jury, before Mr. Justice Woodruff, in October, 1856, who gave judgment for the plaintiffs. On the trial the defendant offered to show that, in a conversation between Mr. Hubbard and the attorney of the plaintiffs in the action in wMch Hubbard was in custody, the attorney verbally consented that Mr. Hubbard might go to PhiladelpMa; and that in pursuance of that consent Mr. Hubbard went to PhiladelpMa, and that the declared purpose of the giving of that consent, and of said Hubbard in going, was to get money wherewith to pay the judgment, the record of wMeh had been produced in evidence, and that for this alleged escape this action was brought.

      The counsel for the plaintiffs objected to this evidence on the ground that the attorney had no power to so consent, unless the defendant would go further and show that this consent was given with the knowledge or concurrence, or received the approbation of the plaintiffs in the judgment or of one of them.
    The counsel for the defendant having stated that he did not propose to give such proof in connection with the offer, but insisted upon the testimony being admissible, as offered by him, the Court sustained the plaintiffs’ objection and refused to permit the evidence to be given; and the defendant duly excepted to the decision.
    The finding of the judge, before whom the action was tried, is as follows:
    " First.—That the plaintiffs did recover the judgment set forth in the plaintiffs’ complaint.
    Second.—And that the defendant, on or about the 27th day of May, 1854, suffered or allowed the said Thomas S. Hubbard to escape from his custody, or go out .of his bailiwick, or county, as alleged in the complaint.”
    To which last finding, the defendant, by his counsel, excepted, and the exception was duly noted.
    “ Third.—That this action was commenced against the defendant, while the said Hubbard was out of the defendant’s bailiwick.”
    To which last finding the defendant, by his counsel, excepted, and the exception was duly noted.
    And the said Justice then and there was of opinion, and decided as his conclusion of law, .from the facts so found by him, that the defendant was liable to the plaintiffs for the amount of the said judgment so recovered against the said Hubbard and Barton, with interest thereon from the time of perfecting, said judgment, to which decision, the defendant, by his counsel, excepted. •
    The said Justice did thereupon give judgment for the plaintiffs against the defendant for $1,220 84, and the defendant excepted to such judgment being given.
    •From that judgment the defendant appealed to the Genera) Term.

      J. N. Balestier, for plaintiff and respondent.

      A. J. Vanderpoel, for defendant and appellant.
   By the Court. Hoffman, J.

The only question in the cause arises upon the refusal of the Judge to admit the testimony offered to show that, the attorney of the plaintiffs in the suit against "Hubbard and Barton gave a consent to his going to Philadelphia for the purpose of raising money to pay the judgment. This was rejected on the ground that such a consent would not of itself, and alone, avail as a defence to the sheriff.

We consider this ruling to have been correct.

The case of Kellogg v. Gilbert (10 John Rep. 220) settled this point; and was very much like the present in its circumstances.

Dexter v. Adams (2 Denio, 646), is clearly distinguishable. An agent of the plaintiff had concerted a fraudulent scheme, to decoy the parties off the limits, and had a capias in his pocket, to be delivered to a coroner - to serve upon the sheriff, at the moment of accomplishing his intended fraud.

The statute (2 R. S. 262, § 26-29) has been referred to. It extends the authority of the attorney beyond the entry of the judgment, and enables him to receive payment, and acknowledge satisfaction at any time within two years.

In Gorham, v. Gale (7 Cowen, 744), the power of an attorney during the progress of a suit, was treated of at length, in the opinion of Mr. Justice Woodworth. It was stated that, although he had not power to enter a retraxit, or discharge a party from execution without payment, he may and ought to exercise his discretion in all the ordinary occurrences which take place in relation to the cause.

In Benedict v. Smith (10 Paige, 127), the Chancellor, after adverting to the statute, and speaking of the powers of the attorney of record of a plaintiff in an action, in which the plaintiff had recovered a judgment, said, “ The defendant was authorized to consider him as the attorney of the plaintiffs in the judgment, and as possessing the general power and control over the proceedings for the obtaining satisfaction of that judgment, which the attorney on record has, by virtue of his general retainer, in other cases.” “ If the property levied on by the execution in this case had not been sufficient to pay the whole debt, if sold by the sheriff in the ordinary way, a question of some importance might have arisen, whether the attorney on record, who is employed to collect a doubtful debt for his client, may not, even after judgment, receive a part of the debt, and discharge the hen of the judgment upon receiving security for the residue of the debt.”

But in that case, the Sheriff had levied upon property sufficient to discharge the debt. The attorney took an assignment of a security, and in his own name, and discharged the judgment. It was held that he had exceeded his powers; but as the client had ratified his acts, such ratification was held equivalent to a prior authority, and the clientwas held to be concluded by them. This statute and case do not, in our opinion, warrant so great a change in the long settled law as must be effected, in order to hold the present defendant discharged by the facts offered to be proved.

In a late case Baron Parke said, that the attorney, in a Court of law, is not like a proctor in the ecclesiastical courts, “ dominus litis, but he is the mere agent of the suitor.” (Thatcher v. D'Aquilar, 11 Ex. Rep. 436).

We think the judgment must be affirmed.

Affirmed accordingly.


text:
    William Small v. Thomas M. Sloan.
    A guaranty, before the Code, was assignable, so as to give an equitable title to the assignee, although he could not sue thereon in his own name; but, under the Code, it is not merely assignable, but the action thereon must be brought in the name of the assignee, as the real party in interest.
    There is no presumption and no rule of law that can warrant a Court or jury to infer, from the mere fact that the body of an instrument or endorsement is not in the hand-writing of the signer, that it has been altered, or that it did not appear in the same form when the signature was made.
    "When circumstances of suspicion are proved, the party claiming under the paper may, properly, be required to satisfy a jury that it was signed in the form in which it appears; but in all other cases, the plaintiff is bound to prove the signature alone, which is prima, facie evidence that the defendant contracted the obligation that the paper imports.
    Judgment for plaintift, upon verdict, with costs.
    (Before Duer, Slosson, and Woodruff, J.J.)
    Heard, April 8th;
    decided, June 13th, 1857.
    This action, comes before the Court on a motion, by the plaintiff, for judgment on a verdict in his favor, taken subject to the opinion of the Court at General Term.
    This action was brought to recover the balance alleged to be due to the plaintiff, as assignee of Small, Williams & Co., and payable upon three notes, and the defendant’s guarantee of two thereof. That is to say:
    A note for sixty-five dollars, made by the defendant, payable to the order of the said firm of Small, Williams & Co., and by them endorsed to the plaintiff. (In respect to this note there is no controversy; though if the payments, which are admitted, and the amounts otherwise realized, were to be applied to this note only, the plaintiff could recover nothing.)
    A note dated June 22d, 1843, made by B. W. Green, for fifty dollars, payable five days after date, to the order of the defendant.
    And a note, or due bill, made by the said Green, dated May 30th, 1845, in these terms: “Due Mr. Thomas M. Sloan order, two hundred and thirty-five dollars, payable on demand, for value received.”
    Upon the back of each of the last mentioned two notes are endorsed the following words:
    “ For value received, I hereby guarantee the payment of the within, July 3, 1843.
    Thos. M. Sloan.”
    The complaint avers the making and delivery of the above guarantee by the defendant, and the delivery of the notes so guaranteed to Small, Williams & Go.; that neither Green nor the defendant has paid the same; that Small, Williams & Co. have transferred the same to the plaintiff. But the complaint does not aver that payment of either the said note or due bill has been demanded from the maker thereof.
    The answer, after setting out a payment on the note made by the defendant, denies that he ever executed and delivered any such guaranties, as are set forth in t^e complaint, upon the notes of Green.
    The action was tried before Mr. Justice Duer, and a jury, in January, 1854.
    Upon the trial the plaintiff produced the notes of Green, and proved the signature of the defendant to the guaranties endorsed thereon; and the witness, on cross-examination, testified that the writing of the guaranties so endorsed was not that of the defendant, but the signatures only. Upon this evidence and proof of the interest upon the several notes, the plaintiff rested.
    The defendant moved for a non-suit, which was denied, and the defendant excepted to the decision.
    Thereupon, by direction of the presiding Justice, the jury found a verdict for the plaintiff, for $364 94, subject to the opinion of the Court," on a case to be made, with liberty to, either party to turn such case into a bill of exceptions.

      W. M. Evarts, in moving for judgment for the plaintiff upon the verdict, argued as follows:
    The proof of the signature of a party to an instrument is prima facie evidence that the instrument written over it is the act of the party; and this primd facie evidence will stand as proof unless the defendant can rebut it by showing, from the appearance of the instrument itself, or otherwise, that it has. been altered.
    There is nothing in the appearance of the notes in question from which an alteration or addition to the endorsement can be presumed.—Glossop v. Jacob, 4 Campb. 227.
    ■ The general presumption of innocence is sufficient to outweigh any conjectures that might be drawn from the appearance of the guaranties, and the facility of inserting them over a blank endorsement.—Best on Presumptions, p. 58.
    Fraud or forgery is not to be presumed when any other expiar nation is consistent with the facts.
    Endorsers enjoy the same security as all other parties to instruments, in the fact that fraudulent and felonious tampering with instruments after execution, is not to be anticipated.
    But if the rule contended for by the defendant prevails, the holders of commercial paper will be in great jeopardy, seldom having the means of proving more than the signature,

      In the numerous cases where the burden has been held to be upon the party offering paper to explain its condition, some alteration, honest or fraudulent, was manifest and undisputed.

      Knight v. Clements, 8 Ad, & El. 215; Henman v. Dickinson, 5 Bingh. 183; Cariss v. Tattersall, 2 Man. & G. 890.
    But where there is no alteration manifest upon inspection, or where the fact is doubtful, the burden is upon the defendant. 1 Saund. Ev. & Pl. 78.

      C. W. Sandford, for the defendant,
    made and argued tire points stated in the opinion of the Court.
   By the Court. Woodruff, J.

There is nothing in the case, as made up for the hearing at the General Term, which shows what questions of law were raised on the trial herein, or the grounds upon which the motion for a nonsuit was urged.

The questions, which the counsel for the defendant has presented for our consideration, are shown by his points submitted, in the following words:

“1. The defendant was an endorser, over whose name the plaintiff wrote a guarantee, He was entitled to all the rights of an endorser,”

“ 2. No proof of demand of the notes upon the drawer was made, and no notice of non-payment.”

“ 3. If the endorsement was a guarantee, it was not assignable.”

“ 4. The complaint should have been dismissed.”

Nothing was suggested on the argument in support of the fourth proposition, except what was said by insisting upon the other three, from which the fourth was made an inference.

As to the assignability of the guarantee, it is sufficient to say, that although a special guarantee was not negotiable, and an assignment would not authorize a suit in the name of the assignee, before the Code—(and that is all that was decided on this point in the case cited; Lamourieux v. Hewit, 5 Wend. 307.) Yet an assignment would always pass the equitable title, and the guarantee could be enforced for the benefit of the assignee, but in the name of the person to whom the guarantee was made.

Now, as actions must be prosecuted in the name of the real party in interest, and as the fact of actual assignment to the plaintiff is alleged in the complaint, and not denied in the answer, the objection fails.

. The 1st and 2d points appear to proceed upon one ground, and were so argued by the defendant’s counsel, viz.:

Inasmuch as nothing appears upon the back of the two notes, in the'handwriting of the defendant, except his signature, it-is to be presumed that when he wrote his name, nothing else had been written thereon, i. e. he endorsed the notes in blank, and is, therefore, to, be regarded as an endorser, and as-such cannot be charged without proof of demand of payment of the maker, and notice of non-payment to himself.

.. This claim calls upon us to, presume, that the plaintiff or his assignors have been guilty, of a fraud, if not of a forgery,, by writing over the defendant’s signature, acontract which he never made nor consented to;

We know of no such presumption as is here suggested, nor of any rule by which we can infer, or which warrants a jury in inferring, from the mere fact that the body of an instrument or endorsement is not in the handwriting of the signer, that it has been altered, or that it did not appear in its present form when the signature was made.

Where there is any evidence, however slight, that the endorsement was originally a blank endorsement, the circumstance that the writing is not that of the endorser, may properly have weight. And whenever there are circumstances of suspicion, the party claiming under the paper may properly be required to satisfy a jury,, that the paper was signed as it now appears. (See Mabee v. Sniffen, 2 E. D. Smith, 1.) But we have been referred to no authority, non are we aware of any principle upon" which we can say, that the plaintiff was bound to do more than produce the' endorsement, and prove the signature thereto. That" was prirad facie evidence, that the defendant assumed the obligation imported by it, as truly ás proving the maker’s signature to a promissory note, the body of which is ‘ not in his handwriting,. is prima facie evidence of his promise to pay the sum of money mentioned in it, and according to its tenor.

The defendant was not, therefore, entitled to all the rights of an. endorser, and as such, at liberty, to resist the claim on the ground of want of demand, and notice of non-payment.

It was not a commercial-endorsement entitling the endorser as such, to demand, protest, and notice.

If the point now taken can be construed to mean, that treating the endorsement on the back of the notes as a guarantee, there must still be a demand-before the defendant could-be charged, it must suffice to say, that no such point appears to have been taken at the trial, and the fact, set up in the answer, that Green, the maker, did, after the-notes were passed to the plaintiff, make a payment thereon, sufficiently indicates that he regarded them as a then present debt, and that he was in default in not paying the balance. .

The case was obviously tried, and defended, upon the idea that the plaintiff was bound to show that the signature of the defendant was not,- when written, a "blank endorsement, and that in the absence of such proof, he is entitled to be regarded, as a mere endorser; and with the rights of endorser, entitled to demand of payment, and notice of non-payment. This, we think, is not well founded.

. Judgment should be ordered for the plaintiff upon the verdict.

Ordered accordingly.