author:
Monell, Ch. J.
      Per Cur.

text:
    THOMAS H. LANDON, Plaintiff and Respondent, v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Defendant and Appellant.
    I. GrOVERNMEMT, CITY AND COUNTY.
    1. WHO ARB HOT OFFICERS OF.
    1. The clerks of the court of common pleas are not.

      a. They are a part of the court, which is an incorporeal political being, forming a part of the judicial system of the state.
    H. BOARD OF APPORTIONMENT.
    1. Power of, tthder chap. 583 of the act of 1871.
    1. The officers whose salaries it has power to regulate, ame those who form a part of the political government of the city and county of New York, and are connected with the executive or legislative departments; and not those who are a part of the judicial system of the state.

      a. Therefore the board has nopower to redupe the salary of the deputy clerk of the court of common pleas for the city and county of New York.
    Before Freedman and Sedgwick, JJ.

      Decided June 7, 1875.
    Appeal from a judgment entered in favor of the plaintiff against the defendants upon an order sustaining a demurrer to the answer.
    The complaint alleges that the plaintiff was duly appointed a deputy clerk of the court of common pleas in and for the city and county of Yew York, and his salary fixed at the sum of five thousand dollars, per annum.
    That he entered upon and continued to perform the duties of said office to the present time, and was paid his aforesaid salary to June 1, 1871, and also from and since January 1, 1872. That for the interval—from June 1, 1871, to January 1, 1872—payment at the rate of five thousand dollars per annum has been refused, and payment at the reduced rate of four thousand dollars per annum has been made and received by the plaintiff, under protest.
    And it is alleged that the reduction was illegal, and that the plaintiff is entitled to recover for said interval at the aforesaid rate of five thousand dollars.
    The answer alleges that, on the 17th of May, 1871, the Board of Apportionment, pursuant to chapter 583 of the Laws of 1871, did adopt a resolution as follows:
    “ Resolved, That the salaries of all such officers and employees of the city and county government as are paid at the rate of five thousand dollars or a greater sum per annum, be reduced at the rate of twenty per cent, per annum, such reduction to apply from the first day of June to the thirty-first day of December, 1871.”
    That, pursuant to such resolution, the salary of the plaintiff was thereby reduced to the sum of four thousand dollars per annum for the period aforesaid.
    The demurrer was to the sufficiency of the answer.
   The following opinion was delivered at special term:

Monell, Ch. J.

The sufficiency of the appointment of the plaintiff as a deputy of the clerk of the court of common pleas, and that Ms salary was fixed at five thousand dollars per annum, is conceded by the answer. It is also admitted that he has at all times performed the duties of the office.

The only question, therefore, is, whether the Board of Apportionment had authority, under the statute referred to, to reduce the plaintiff’s salary.

The act is entitled, “An act to make provision for the local government of the city and county of New York” (Laws of 1871, p. 1268), and in the third section it is provided that certain officials shall meet as a board of apportionment, and shall have power, &c., . . . “ to regulate all salaries of officers and employees of the city and county governments.”

It is claimed that the plaintiff is not an officer of either the city or county governments, and therefore not affected by the resolutions of the board, reducing salaries by twenty per cent, of such as were then receiving five thousand dollars or upwards.

The city of New York, as a corporate or political body, consists of the mayor, aldermen, and commonalty ; and the county of New York, as a body politic, is represented by the board of supervisors. These governments—the former under ancient and modern charters, and the latter as one of the political divisions -of the state—have recently been consolidated (Laws 1874, chap. 304), and for all governmental puposes have now become one body corporate and politic by the name -of the mayor, &c.

When the act of 1871 was passed, these governments were separated, and each exercised its separate corporate functions and powers.

The general functions of government in the republic -are confided to the legislative, executive, and judicial departments. The legislative department for the whole state reposes in the senate and assembly ; for districts and portions of the state in boards and supervisors; an 1 in cities and villages in local boards of councilmen and trustees. In the political division of the state, the functions of these boards are confined to the interests and tenitory for which they are created. The people of another or adjacent territory, have no interest in their acts, and can not be affected or prejudiced by them. The supervisors of a county, and the aldermen or trustees of a city or village, must legislate for their own counties, cities, or villages ; they can not legislate for other counties, cities, or villages. They are merely local legislators, confined and prescribed in their powers, in whose acts their immediate constituency are interested.

So with the executive department, for the state at large, it is vested in the governor ; but, in the political divisions of the state, it is to some extent delegated to certain ministerial or quasi executive officers, who, within prescribed limits or divisions, exercise some of the executive power. Their functions are restricted, .and their powers confined to parts only of the state. The people at large have no interest in, nor are they affected by the acts of such officers.

Officers appointed or elected to administer the local -divisions of the state, whose functions are limited to such divisions, are local officers, as distinguished from the class whose powers, for some or all purposes, extend throughout the state ; and they as the agents of the people, are the local government. In counties they are the government of the county ; in. cities, the government of the city ; and for the purpose of local government, their acts, subject only to the higher legislative or executive control, are of force in such divisions, but not elsewhere.

Local governments have always been confided to local officers; and although public officers, whose powers extend over the state, may exercise their powers anywhere in the state, they are not a part of the local government, but only a part of the general government of the state, which includes the separate divisions of the state.

The senate and assembly may legislate for the city or the county of Hew York; may constitute the agencies for their local government, and prescribe and fix the limits of their powers.

But the senate and assembly is not the local government of the city, or county. It is merely a power to create such local government, and not such government itself.

There is a clearly defined distinction between general and local government. The local may be, and doubtless is, included in the general, to the extent that the latter may create the agencies to administer the former. But to that extend only does or can the general government, which resides in the whole people, administer the local government.

Under the agencies thus created, and under them alone, does the local government administer the government.

If, therefore, local governments are administered by local officers, created for the purpose, and with power to administer them, then it necessarily follows that public officers, whose functions extend beyond local territories, are not a part of local governments.

The judicial department is a part of the general government of the state. It forms no exclusive part of any of the political divisions of the state. It administers its functions for the people at large, and except in some cases, is unlimited in its jurisdiction.

The court of common pleas is a part of this judicial system ; and although there is a territorial limitation to its jurisdiction, and a certain degree of locality in its organization, it, nevertheless, is not dissevered from the general judicial department of the state. It administers the law for all the people, and is not confined to the constituency of a particular district. For I do not understand that the territorial restriction in the execution of process of a certain kind, and in certain cases, has yet been held to confine its jurisdiction, when it had acquired it in other cases, extending beyond the territorial limit. The constitution recognizes it as a part of the entire judicial system, and as part of the general government; and as it is not restricted exclusively to a local or political division of the state, it forms no other part of the local government of the city or county than does the supreme court, when, as another part of the judicial system, it exercises its powers and jurisdiction within the same territory.

The judges of this court are among the class of judicial officers who are denominated public officers of the state (1 R. S. 95, § 1). If such officers are with functions, which, at least for some purposes, extend over the state, then they are not necessarily county or city officers, but officers of the state, and a part of the state judiciary.

In the case of Day v. Buffington (11 Int. Rev. Rec. 205), which was an action to recover a tax imposed by congress upon a judge’s salary, the plaintiff was a judge of probate for a county in Massachusetts. The court recognizing the vesting the powers of government in the three departments—the legislative, executive, and judicial—held the judge of probate was a state and not a county officer; and the supreme court of the United States, in reviewing that decision (11 Wallace, 113), say that the judges are one of the means and instrumentalities for administering the government of a slate. Judge Nelson says (p. 126), the question is whether the power to levy and collect taxes enables the general government to tax the salary of a judicial officer of the state, which officer is a means or instrumentality employed to carry into execution one of its most important functions, the administration of the laws.

In Freedman v. Segel (10 Blatchford, 327), it was attempted to distinguished Day v. Buffington (supra), on the ground that the salary in the former was payable out of the city, and in the latter out of the state treasury. But Judge Shipman says: “In both cases the judges exercise the judicial authority of the state, and represent its sovereignty in that behalf. The payment of salaries out of local treasuries did not localize the courts. To assent to such a proposition would be to maintain that the sovereign power of a state depends upon the manner in which it exercises its discretion in the details of its administration and the distribution of its public burthens.”

The plaintiff in Freedman v. Segel was a judge of the superior court of this city, a court no less local than the common pleas. Of that court Judge Shipman says: “ It is clothed with no inconsiderable part of the general judicial power of the state, with more or only partial limitations as to the subject-matter of litigation.”

In Quin v. the Mayor, &c. (44 How. Pr. 266), the action was to recover the plaintiff’s salary as a judge of one of the district courts of this city. In examining the act of 1871, as authorizing the board of apportionment to regulate salaries of the officers of the local government, Judge Fancher says: “It may be questioned whether the officers thus referred to include judicial officers. The term certainly does not include state officers, who derive their office from the general laws of the state, and whose duties are not by law limited to the city and county of Hew York.” This case was affirmed by the court of appeals upon the opinion of Judge Fancher (53 N. Y. 627).

It is quite clear, I think, that the officers whose salaries were brought within the regulating power of the board of apportionment, were intended to be such as formed a part of the political government of the city and county, and who were connected with the executive or legislative departments, and not such as were a part of the judicial system of the state; otherwise, the legislature would not have limited it to officers of the government, but would have extended it to all officers whosé salaries were paid out of the city or county treasury. But the limitation to the officers of those governments indicates sufficiently that it was not intended to cover officers of the state.

The deputy clerk of the court of common pleas is appointed by the clerk, who receives his appointment from the court (Laws 1847, ch. 255, § 7), and is the custodian of its records and seal. He is a part of the incorporeal political being, which requires for its existence the presence of judges and a clerk.

Therefore, if the court itself, or the judges of the court, are not within the act, it follows that neither the clerk nor his deputy is, or can be, affected by its provisions.

A careful examination of the subject has satisfied me that the plaintiff is not, and was not, an officer of either the city or county governments, and therefore that the board of apportionment had no authority to reduce his salary.

The plaintiff must have judgment upon the demurrer, with costs.

E. Delafield Smith, counsel to the corporation, and D. J. Dean, of counsel for appellants, urged:—The defendants argue, that the plaintiff is an “officer or employee of the city and county of New York.” He is the deputy of the clerk of the court of common pleas, appointed by the clerk of that court, pursuant to Sec. 1 of ch. 198, Laws of 1854. The court of common pleas is a local court, through which the judicial authority of the state is administered within a designated locality. The judges of the court are public officers of the state; but the clerk and his deputies are not the depositaries or ministers of judicial power. Their duties are purely local, and concern only the government of the city and county of New York. The plaintiff,, therefore, administering the duties of a local administrative office, within the city and county of New York,, and receiving a salary from the treasury of the city and county of New York, is an officer thereof ; and is comprehended within the intent and the letter of the statute, authorizing the board of apportionment to regulate all salaries of city and county officers.

Elliot Sandford, attorney and of counsel for the-respondent, urged:—I. Section three of chap. 583, Laws 1871, does not give the board of apportionment power to reduce the plaintiff’s salary, because the office of deputy clerk of the court of common pleas is neither a city office nor a county office. The charters of the-city enumerate the city departments and the city officers, but they contain no allusion to the office held by plaintiff, or to the court of which he is an officer (44 How. 266; 53 N. Y. 637; 3 Dillon on Corporations, § 773).

II. The office held by plaintiff is a state office, and

he is a state officer (Opinion of Freedman, J. in Jarvis ». The Mayor, &c., reported in “Register,” April 21). The court of common pleas was re-created and reorganized, by a special and separate act, in 1821, and, by .subsequent statutes, vested with general jurisdiction in law and equity. Any person in the state may be plaintiff. The only restriction on its jurisdiction is, that defendant must reside, or be served with process, in the city of New York. To remove all doubts, general power and jurisdiction were given in 1854 (History of the court by Chief Justice Daly, 1 E. D. Smith, lxxx. 3 Daly, Appendix). By the Revised Statutes (1. R. S. § 95) the judges and clerk of this court are classed as judicial officers, under the title of “public officers of this state, other than militia” (ch. 5, title 1, part 1).

III. State officers are not necessarily those whose duties extend over the whole state (Greaton v. Griffin, 4 Abb. N. S. 310; Russell v. The Mayor, 2 Denio, 472, 481, 483; Healey v. Dudley, 5 Lans. 115, 122; People Conover, 17 N. Y. 64, 67; Hayner v. James, 17 N. Y. 316).

IV. The title of the act, ch. 583 is, “the act to make provision for the local government of the city and county of New York.” The court of appeals decided in the case of Smith v. The People (47 N. Y. 330), what the words “ local government of the city of New York” mean. Judge Allen says (p. 337), speaking of the title of chap. 137, Laws 1870, which is “an act. to reorganize the local government of the city of New York,” and known as the charter of 1870 : “The title of the act is local, relating solely to the political organization of the city. It does not indicate an intent to reconstruct or interfere with the organization of the criminal courts of the city, and the act in all its provisions adheres to the title.” The same principle is laid down in Huber v. The People (49 N. Y. 132). Section 9 of chap. 382, Laws of 1870—the county tax levy—making farther provisions for the government of the county of New York, giving power to the comptroller to appoint and remove attendants on courts, has been declared void by two general terms of the supreme court, because in violation of the local act clause of the constitution (Brennan v. The Mayor, &c., not reported; Opinions by Ingraham, P. J., and Brady, J., 47 How. 178). It is obvious, therefore, that the words “ local governments of the city and county of New York ” do not include the courts.

Per Cur.

The judgment is affirmed, with costs, upon the opinion delivered by Judge Monell in the case at special term.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    CAROLINE POLLOCK, Plaintiff and Appellant, v. MATTHEW T. BRENNAN, Sheriff, &c., Defendant and Respondent.

      V SHERIFF—TRESPASS AGAINST FOR LEVYING ON GOODS CLAIMED TO BE OWNED BY A. UNDER AN EXECUTION AGAINST B.
    Í. Evidence as to ownership.

      a. Proof that A. bought the goods of H. at a time when he was sole owner thereof, is not decisive on the issue of Ads ownership.

    1. If A. in fact acted on behalf of B. in making the- purchase, then A. would not be entitled to recover.
    • 6. Proof that A. had means and B. had none, is admissible.

    1. Questions in different forms tending to show these facts are proper.
    c. Proof as to-who was in possession.
    1. Proper on the question of ownership.
    1. Question designed to call out such proof.
    The deputy-sheriff who made the levy was asked, “if he saw anybody that was in charge of the place at the time he went to levy ? ” the question was correctly-allowed under a general objection.

      Answer.

    The witness answering that he judged the plaintiff’s husband was in charge, not being objected to, does not render the allowance of the question or the reception of answer, error.
    2. Res gesta.—The defendant having called out the fact that plaintiff’s husband was in charge, plaintiff was entitled to have from the witness who testified to that fact, testimony as to what was said at the time.
    H NEW TRIAL.
    1. Motion nor on the evidence.
    1. Cause for denying.

      a. That the party did not call the attention of the court to his claim that the weight of the evidence as matter of law called for a verdict in his favor is sufficient cause,
    m. OPINIONS NOT IN THEMSELVES ADMISSIBLE.
    1. Where a witness gives to a question, the allowance of which is not error, an answer which is responsive, but which merely states his opinion on the subject-matter inquired of, and no objection is taken to his answer, there is no error calling for a reversal.
    IV. TRIAL—CONDUCT OF.
    1. Sustaining objection urged in the middle on a question.

      a. Not error where the reason for the exclusion does not appear, and the counsel does not claim the right to complete.
    1. A substantial reason growing out of the usual incidents of a trial, must be presumed to exist.
    2. Remote evidence.

      a. Error can not be assigned on this ground under a general objection to the reception of evidence, the subject-matter of which is pertinent to the inquiry.
    1. A special objection must be made based on the ground of remoteness.
    8. Unimportant testimony.
    Exclusion of is not cause for reversal, although the inquiry is pertinent.
    Before Monell, Ch. J., Freedman and Sedgwick, XL

      Decided June 7, 1875.
    Appeal from judgment upon verdict.

      Samuel Hirsch, attorney, and of counsel for appellant.
    Brown, Hall & Vanderpoel, attorneys, and Mr. Green, of counsel for respondent.
   By the Court.—Sedgwick, J.

The exceptions are of a kind that does not require a detailed statement of the facts. The action was to recover possession of personal property,belonging, as alleged, to the plaintiff. The property was taken under an execution issued against the property of Adolph Pollock, the plaintiff’s husband. When the case went to the jury, there was sufficient evidence to require their verdict as to whether, although the property was nominally owned by the plaintiff, her husband was not in fact the true owner. It was not decisive of this issue, that she bought the business from Hoffman, at a time when he was sole owner. If she, in fact, acted in that transaction in behalf of her husband, she was not entitled to recover in this action. On the merits, then, the motion for a new trial was correctly denied. In addition, the plaintiff let the case go to the jury without directing the attention of the court to her claim that the weight of the evidence, as matter of law, called for a verdict in her behalf. This was tantamount to consenting that the jury should pass upon the facts, and prevents a subsequent motion for a new trial on the evidence. We have said, in substance, that the judge properly submitted the case to the jury.

The deputy-sheriff who levied upon the property was asked, “ if he saw anybody that was in charge of the place at the time he went to levy?” The court correctly allowed this question, on the general objection of the plaintiff. The question called for testimony as to who was in possession and control of the property. These indicia of ownership were relevant facts. The answer was, that witness judged the plaintiff’s husband was in charge. This was not objected to by plaintiff’s counsel, who might have deemed this answer less hurtful than the particular acts on which the opinion was based.

The defendant having called out this fact, I think the plaintiff was entitled to have in testimony what was said at the time by her, both, because as urged by the learned counsel for appellant she was entitled to show she was not estopped by standing silent in the presence of what defendant claimed was an apparent ownership of her husband, and also because, as I think, anything she said was to be considered by the jury in ascertaining what was the correct inference to be drawn from the husband’s acts or words, which, according to defendant’s theory, showed he had charge of the property. Such were the views of the learned judge at the trial, for against defendant’s objection he permitted a preliminary question—“Did she say anything at the time to you?” The answer was, “She said a good deal that I don’t remember; she was quite agitated, and said a goód deal.” There appears in the case, that the counsel for plaintiff then said to the witness, “Now, among the good deal that she said, will you please tell this jury whether or not she then said”—? An objection to this was sustained. There does not appear to be any error here. The question in this maimed condition did not call for answer at all. Nor can we presume, against the presumption in favor of the validity of the judgment, that the court meant to shut out any relevant declaration of the plaintiff. We must suppose that there was a substantial reason, growing out of the usual incidents of a trial, which led the court to stop the counsel in the midst of the question, inasmuch as the counsel did not claim a right to complete it.

The defendants claimed, or it was within the scope of the claim they made, that the plaintiff did not buy the business, and that any money used in it belonged to the husband and not to her. Therefore it was right to admit the questions in different forms that tended to show that the plaintiff had no money, but that her husband had means. As to those questions, which it is now argued referred to remote times, there should have been special objections, that called the attention of the court to the specific point. This not being done, the ruling of the court was only as to the general pertinency of the subject-matter of the inquiry.

The defendant placed on the stand a creditor of plaintiff’s husband, who testified on direct examination as to the state of accounts between them, and as to property in possession of plaintiff’s husband shortly before the plaintiff made her alleged purchase from Hoffman. On cross-examination he testified he sued the husband for five hundred and thirty-four dollars. Plaintiff’s counsel then asked, “And did you recover in that action a judgment of sixty dollars?” On defendant’s general objection, this was excluded. This objection did not call for the exclusion of the proposed evidence as secondary. The matter aimed at was pertinent, but I think there is an error of printing, which prevents a reversal on this sole ground as well, because, although pertinent, the matter was unimportant. The error I allude to, is that of the printed book, setting out that the witness testified that he sued for five hundred and thirty-four dollars. On the direct examination, the witness said that at the time in question, the indebtedness was in fifty-three dollars and three cents. If this error does not exist, the plaintiff had full advantage of the fact that the witness sued for five hundred and thirty-four dollars, when fifty-three dollars and three cents were owed, and the only importance of the judgment would be to show what the fact was. I am of opinion that the judgment should be affirmed, with costs.

Monell, Ch. J., and Freedman, J., concurred.


author: Curtis, J. By the Court.—Sedgwick, J.

text:
    WILLIAM P. POWERS, Administrator de bonis non, &c., Plaintiff and Respondent, v. WILLIAM HUGHES, et al., executors, &c., of THOMAS KIVLIN, deceased, Defendants and Appellants.
    1 BILL OF PARTICULARS.
    1. When hot obdeeed.
    In an action where the ordering of a bill of particulars is a matter of discretion, one will not be ordered where, for anything that appears, the defendant is as well acquainted as the plaintifE with the nature and particulars of the claim, and has all the knowledge necessary for him to prepare an answer to the complaint in the form as pleaded.
    Thus : In an action brought by an administrator de ton,is non of P. against the executors of the agent of the administratrix of P. (which administratrix was also deceased) for an accounting of the assets of P., and the proceeds thereof remaining in the hands of such agents at the time of his death, and for the delivery and payment over thereof, the defendants moved upon the complaint and an affidavit of their attorney for a bill of particulars ; the complaint alleged that the agent at the time of the death of the administratrix had in his possession a large amount of assets, the property of P., ¿¡which he had collected and received as agent of the administratrix; that at the time of the death of said agent, the said assets and proceeds thereof, which he had received and collected as before stated, remained in his hands unaccounted for; the affidavit averred that the defendants were ignorant of the particulars of the claim, and that it was necessary and material to their defense, and to enable them to answer, that they should have a bill of particulars.

      Held,

      A proper exercise of discretion to refuse an order for a Mil of particulars.

    Before Freedman and Sedgwick, JJ.

      Decided June 7, 1875.
    Appeal from order denying motion, by defendants, for bill of particulars.
    The complaint alleges that Ann Powers was appointed administratrix of the estate of William P. Powers, deceased; that she appointed Thomas Kivlin to be her agent in the care and management of the goods, chattels, and credits of said William P. Powers, deceased; that said Kivlin, as such agent, “took the entire charge and management of the goods, chattels, and credits of said William P. Powers, collected all moneys due said estate, and also as such agent assumed to collect, and did collect, the rents of certain real estate of which said William P. Powers had died seized; ” that said Ann Powers died leaving a large portion of the estate of said William P. Powers, deceased, unadministered ; that the present plaintiff was appointed administrator of the goods, chattels, credits, and effects which were left unadministered by said Ann Powers : that Thomas Kivlin, as said agent of Ann Powers, as aforesaid, had at the time of her death in his possession a “large amount of assets, the property of the estate of the said William P. Powers, deceased, which, he had collected and received as such agent.” That said Thomas Kivlin died, leaving a will appointing the defendants the executors thereof; that said Thomas Kivlin at the time of his death had not accounted for the property of the estate of William P. Powers, deceased, which he had collected and received, as before stated, and that the defendants although requested, “neglect and refuse to account with the plaintiff for the unadministered assets of the estate of said William P. Powers, deceased, so remaining in the hands of said Thomas Kivlirt, deceased.” Wherefore the complaint prayed “that an account may be taken of such assets and proceeds remaining in the hands of Thomas Kivlin, deceased, and which form a part of the unadministered estate of said William P. Powers, deceased, and for a decree for the delivery over and payment to plaintiff” as administrator, &c.
    The defendants, before answering, moved for a bill of particulars of plaintiff’s claim on the summons and complaint, and on an affidavit which stated that the defendants intend to defend the action in good faith, but are ignorant of the particulars of said claim ; that they have not answered said complaint; that it is necessary and material to their defense, and to enable them to answer, that they shall have said bill of particulars.”
   The motion was denied ; the following opinion being delivered at special term :

Curtis, J.

The plaintiff brings a suit in equity, asking for an accounting by the executors of a deceased agent, who it is claimed, in his lifetime, received rents and moneys which he did not account for. If the plaintiff shows at the trial facts that entitle him to an accounting, then the account must be taken and stated. At this stage of the suit, the evidence respecting the alleged acts of the agent will be taken, and usually before a referee appointed to take and state the account.

The defendants apply for a bill of particulars of the plaintiff’s demand.

In this case, it is a matter of discretion whether one should be ordered or no". For anything that appears, the defendants are as well acquainted as the plaintiff with the nature and particulars of the claims, and have all the knowledge necessary for them to prepare an answer to the complaint in the form it is pleaded. The effect of a bill of particulars would be to limit the testimony, and consequently the accounting and the recovery to the matters stated in the bill.

If the view contended for by the defendants is correct, it would result, that in every case when a party sought an accounting in equity from an agent who had defrauded him, there would be no remedy unless he could state in a bill of particulars accurately every item which the agent had with held. This would defeat the remedy and leave the principal unable to sustain his claim against the agent who had embezzled and misappropriated the funds he had employed him to collect. I think the views expressed in the opinion in Blackie v. Neilson (6 Bosw. 681), must control in determining this question.

The motion is denied, with costs to plaintiff to abide the event of the suit.

John McKeon, attorney and of counsel for appellants, urged:-I. The complaint in this case is in fact an action for money had and received by Thomas Kivlin in his lifetime as agent of the deceased (William Powers).

II. The complaint does not show facts of an equitable nature. There are no allegations of a fiduciary character of the deceased ; no allegations of mutual accounts; or of a series of transactions between the parties ; or of voluminous or intricate accounts between the parties. The complaint does not even pray for discovery. It is not every account which will entitle a court of equity to interference, and every agency does not authorize the filing a bill in equity (Maxon v. Bright, L. R,. 4 Ch. App. 292; Towle v. Lamason, 5 Pet. 495).

III. The case of Young v. Demott (1 Barb. 30), and Blackie v. Neilson (6 Bosw. 681), are not in point to sustain the decision of the justice. In the present case, the affidavit of defendants is in no manner denied or explained, as in the case of Blackie v. Neilson. Even in that case, the court say, that the necessity of ¡giving the bill of particulars must appear by the moving papers, and by that the discretion of the court must be regulated. Our moving papers show this necessity, and they are not denied.

IV. The defendants having shown, by their affidavit, the necessity of this bill of particulars, for the purpose of framing their answer, and they acting as trustees of the estate of a deceased party, every facility should be afforded them by the court in getting at all the facts in plaintiff’s possession. The plaintiff does not set up that he can not give the information.

V. Under the code, the defendants have a right to u bill of particulars (Tilton v. Beecher, How. Prac. Rep. Jan. No. 1875).

Ambrose Monell, attorney and of counsel for respondent, urged;—I. A bill of particulars is not ordered as a strict legal right, but is a matter resting in the sound discretion of the court, except in those cases where the cause of action alleged in the pleading is an account against the adverse party, the items of which have not been set forth in the pleading. (Fullerton v. Gaylord, 7 Robt. 551).

II. Where, from the nature of the action, the knowledge of the facts on which the plaintiff’s claim rests, is more with the defendant than with the plaintiff, the latter will not be required to furnish a bill of particulars (Young v. De Mott, 1 Barb. 30; Blackie v. Neilson, 6 Bosw. 681).

III. The office of a bill of particulars is to prevent a surprise upon the trial, and not to furnish evidence, and in the present case no surprise can befall the defendants, because they are, or should be, in possession of knowledge of all the transactions of Kivlin, whose executors they are (Drake v. Thayer, 5 Robt. 694).

By the Court.—Sedgwick, J.

Under section 158 of the code of procedure, the defendants were not entitled to a bill of particulars as a matter of right. Although the complaint averred, that the defendant’s testator had collected money belonging to the estate of William P. Powers, deceased, the action was not to recover damages as such, for the withholding of that money. The demand was that the money so collected and the other property be accounted for. The result might give the plaintiff substantial benefits to which they would have a right, other than a mere money judgment. If, however, they could show that not only money was withheld, but also personal chattels, they would have a light to a judgment of a mixed character. As the action was not upon an account, as such, the right to particulars of plaintiff’s claim was not absolute. There is no doubt that the learned j udge had the po wer, if the case called for it, to direct the plaintiff to give the particulars. We are satisfied, however, that he used a sound discretion in refusing it, and adopt the observation which led him to that result. It would not have been consistent with a due regard to the rights of the distributees of the estate of the plaintiff s intestate to cause those rights to depend upon the ability of the plaintiff to specify, in presentí, what was the particular thing or sum it was claimed the defendants should deliver or pay.

We can not examine the complaint, as if a demurrer had been pleaded, nor can we look to find if any of its allegations are indefinite or uncertain except as respects the defendant’s motion for particulars. Until"the defendant demurs or makes his motion, the objections appropriate to these proceedings are not to be considered. We must now deem that the complaint sets out a basis for the plaintiff’s demand, that the defendants account for the property alleged to have been received by Kivlin, as agent of Mrs. Powers. The plaintiff’s rights will depend then upon the result, at present unknown, of that accounting.

We do not see that the defendants are in danger of having judgment against them because of their having no knowledge, as they have not, of the facts set out in the complaint. Indeed they might be in the same predicament if the plaintiff gave an ample bill of par ticulars. The course of practice in such a case permits of a proper adjournment, after the cause has reached a stage which discloses that the defendants are properly charged by the plaintiff. If tried by the court, there is no reason to suppose that these executors will not have the time necessary to examine or meet any evidence of facts as to which they could have had no original knowledge or information after the use of due diligence. If it be proper, a reference may be ordered as to all or a part of the issues. A bill of particulars was not, I think, necessary to the executors for the purpose of answering. For that, it was enough to aver that they had no knowledge or information sufficient to form a belief as to the allegations of the complaint.

The order should be affirmed, with ten dollars costs.

FbeedmÁh, J., concurred.


author: By the Court.—Monell, Ch. J. Sedgwick, J. Freedman, J. (dissenting).

text:
    CLARENCE H. SMITH, surviving partner of ISAAC H. SMITH & SONS, Plaintiff and Respondent, v. THOMAS RYAN, Defendant and Appellant.
    I. LIMITATIONS—STATUTE OF.
    1. Promissory note of a third party, payable at a future
    TIME, ENDORSED AND DELIVERED BY THE DEFENDANT IN PAYMENT OF, OR AS SECURITY FOR, A PART OF HIS INDEBTEDNESS.

      a. As of what time it operates to talce the case out of the statute.

    1. It so operates as of the day of its delivery to the creditor,
    and

      not as of its payment,

      h. Principle of the decision.
    A payment on account, or a transfer of a security as collateral security on account, operates to take a case out of the statute only by reason of a promise implied from the act, to pay the balance. Such a promise can be implied only from the act of the debtor himself or his authorized agent. In the case at bar, the only act done by the defendant was the transfer of the notes—the payment of them at maturity by the makers was not the act of defendant or of his authorized agents. The payment by the makers was not made as agents of the defendant, but in discharge of their principal debt, pursuant to their legal obligations.

    Before Monell, Ch. J., Freedman and Sedgwick, JJ.

      Decided June 14, 1875.
    Appeal from a judgment.
    The action was to recover a balance of an account for goods sold, &c., for which the defendant was indebted April 10, 1868.
    The defense was the statute of limitations. On April 14, 1868, the defendant endorsed and delivered to the plaintiffs two promissory notes of five hundred dollars each, made by Betts & Gay, dated April 6, 1868, and payable in two and five months, with interest. The notes were secured by a chattel mortgage made by the makers to the defendant, which he assigned to the plaintiffs.
    Upon the receipt of the notes from the defendanr they were entered in the books of plaintiff’s firm by charging them to bills receivable, and crediting them to the defendant’s account.
    Upon the maturity of the notes respectively, the principal and interest thereon for two and five months respectively, were paid to the plaintiff’s firm, and the sums collected for principal thereon were carried to the credit of bills receivable, upon their books, five hundred dollars on June 9, 1868, and five hundred dollars on September 17, 1868.
    The last item proved in the mutual account between defendant and the plaintiff’s firm, was the receipt, in September, 1868, of the amount of the note of Betts & Gay, for five hundred dollars, and interest thereon for five months.
    The action was commenced on June 5, 1874, within six years after the said last item of the said account between the defendant and plaintiffs firm.
    The action was tried by a referee, who, upon finding the foregoing facts,«gave judgment for the plaintiff.
    The defendant appealed.

      Lockwood & Post, attorneys, and James B. Lockwood, of counsel for appellants, urged:
    I. The referee erred in finding that the account between the appellant and respondent was a mutual, open, and running account, such as is excepted from the operation of the statute of limitations by section 95 of the-code. (1) There is no evidence in the case to sustain, such finding, and an inspection of the account upon which this suit is founded, at the end of the printed case will show to the court that it does not come within section 95. The English statute (21 James I.) left no doubt upon this question. It excepted “ such accounts as concern the trade of merchandise, between merchant and merchant, their factors or servants” (Cotes v. Harris, Bull, N. P. 149). In the revised statutes before the adoption of the code, the language was as-follows: “In all actions of debt, account or assumpsit brought to recover any balance due upon a mutual,, open, and current account, the cause of action shall be deemed to have accrued,” &c., and the decisions of the courts followed the English statute in construing it (Coster v. Murray, 5 Johns Ch. 522; Kimbell v. Brown, 7 Wend. 322; Edmondstone v. Thomson, 15 Wend. 544; Hallock v. Losee, 1 Sand. 220; Palmer v. The City of New York, 2 Sand. 318). In section 95 of the code, the words “where there have been reciprocal demands between the parties ” have been added, so that there can be no doubt as to the nature of the account to be excepted from the statute of limitations (Peck v. The N. Y. & Liverpool U. S. Mail S. S. Co., 5 Bosw. 226). See also Ingraham v. Sherard (17 Serge & Rawle, 347). (2) The referee also erred in finding that the payment of the five hundred dollars by Betts & Gray in September, 1868, constituted the last-item in the account. The last credit in the appellant’s account was the credit for the two notes on April 14, 1868. The credit given for the proceeds of the two notes was made in another account called “bills receivable.” The only relation it bore to the account of the appellant is shown by the testimony of respondent’s book-keeper who says:. “Mr. Ryan’s-account showed no credit for Betts & Gay’s notes after April 14, 1868 ; if they had not been paid at maturity they would have been charged back to his account; that is what I meant by'saying the bills receivable account was connected with the defendant’s account.”
    II. If it be held that this is an item in the account, and that the account comes within section 95 of the code, still it does not affect the appellant. The principle that in a mutual, running account the cause of action accrues from the time of the last item proved in the account, is based upon the theory that the item within six years is an admission of an unsettled account and equivalent to a new promise (Catling v. Skoulding, 6 T. R. 189). That the admission must be made and the new promise given by the debtor or his authorized agent, is well settled. It follows, also, that the payment, or the demand, or whatever constitutes the item in the account from which the new promise is inferred, must be the act of the party himself or of some one authorized to make a new promise for him (Harper v. Fairly, 53 N. Y. 442). In this case the payment of the item by Betts & Gay without the privity of the appellant, was not an act from which his (appellant’s) new promise could be inferred.
    III. The only question in this case is this—has the appellant made a payment within the six years previous to the commencement of this action on account of his indebtedness to the respondent, or done any act which the law recognizes as an admission of the debt and a new promise to pay it. (1) The evidence shows that the last act of the appellant in respect to his indebtedness was in April, 1868, when he delivered the two notes of Betts & Gay. It is immaterial whether or not the notes were received as payment—their delivery in April followed by their payment, constituted a payment in April as between the debtor and creditor, and the statute began to run from that time (Turney v. Dodwell, 3 Ell. & B. 135; Irving v. Veitch, 3 M. & W. R. 90; Gowan v. Forster, 3 Barn & Ad. R. 507). (2) We have seen above the reason of the rule that payment on account of an antecedent debt restrains the operation of the statute, viz., from the act of payment an admission of the indebtedness is inferred as well as a promise to pay. We have seen also that the payment from which the admission and promise are inferred, must be made by the debtor himself, or his authorized agent (Harper v. Fairly, supra). Is the payment, then, by a third party of his note to the creditor, without the debtor’s knowledge, such a payment by the debtor as to constitute an acknowledgment and revive the debt? Here the third parties’ notes were given by the debtor to the creditor in April, and were paid by the makers in June and September, without the knowledge of the debtor. If the notes had never been paid, there can be no doubt that the acknowledgment was in April. How, then, can the payment of the notes without the privity of the debtor change the principle ? If the appellant has made any acknowledgment of his indebtedness, it was when he delivered the notes to the respondent in April, 1868. This was more than six years from the commencement of the suit, and the debt is therefore barred by the statute.

      George W. Van Slyck, of counsel for respondent, urged:
    I. The payment by the defendant to plaintiff’s firm by the transfer before their maturity of the two notes of Betts & Gay, is to be reckoned from the date of the maturity of the notes, and not from the time of the delivery.' The notes were given on a precedent debt, and the presumption is that they were not given or received as payment but as collateral (Noel v. Murray, 13 N. Y. 168; Gibson v. Toby, 46 Id. 640; Vail v. Foster, 4 Id. 312). This presumption of law was not rebutted nor did the defendant attempt to rebut it. The notes were endorsed by the defendant, which established affirmatively that they were not given as payment (Whitbeck v. Van Epps, 9 John. 408; Breed v. Book, 15 John. 241; Darnell v. Morehouse, 45 N. Y., pp. 64 and 71). By the contract of endorsement the defendant was liable on the notes if they were not paid at maturity, and the plaintiff not guilty of laches. A guaranty even of a note by a debtor, though void by the statute of frauds is evidence that the note was not taken in payment (Murray v. Hoff, 5 Denio, 360). The notes being held, then, as collateral security,, payment should be reckoned from the time of their respective maturity and not from their delivery. The term “ payment,” in its legal import, means the satisfaction of a debt, and in no sense could it be said that the debt was satisfied until the notes were paid. Again the taking of the notes suspended the right of action as to the one thousand dollars until their maturity, but if they were not paid the plaintiff could have returned them to the defendant and resorted to the original demand (Van Epps v. Dillaye, 6 Barb. 24; Fowler v. Clearwater, 35 Barb. 149). The notes operated only as an extension of credit to their maturity if not paid.
    II. If the notes were given in satisfaction of the debt, the date of the payment is to be reckoned from the date of payment of the notes, provided they are paid at maturity, or within a reasonable time thereafter (Fowler v. Clearwater, 35 Barb. 143; Whipple v. Blackington, 97 Mass. 473; Chapman v. Boyce, 16 N. H. 237; Haven v. Hathway, 20 Me. 347). In the above cited case of Whipple v. Blackington, the debtor gave note of third person, which was then over due, and the note was afterwards partly paid. The case of Harper v. Fairly (53 N. Y. 442), was cited before the referee, and is relied on by the defendant to establish his defense. It is submitted that that case is clearly distinguishable from the case at bar. In that case the-note of a third person was not paid to the creditor until several years after its maturity. The opinion in that case holds that a continuing agency will not be presumed to exist on the part of the maker of the note for years after the maturity of the paper so as to bind the debtor by the payment of the collateral obligation by the maker. In that case the payment was made years after the maturity of the note, and without the knowledge of the debtor. The decision does not conflict with the well- established rule that the debtor, in the transfer of a third party’s note, gives an implied authority to the maker thereof to pay the same at or about the time of its maturity. The defendant has admitted that the notes were paid on account of the debt and with his sanction. He has ratified the payment by the makers, so that the case (Harper v. Fairly) in 53 N. Y. does not apply (Huntington v. Ballou, 2 Lans. 120; Commercial Bank of Buffalo v. Warren. 15 N. Y. 577).
    III. Payment of the interest which accrued on the notes at their maturity, can not be said to have been made until the interest had been earned. The credit for the interest could not be given by the plaintiff until it was earned, and the defendant must be presumed to have authorized the payment of the interest at the times only when the same had accrued and not before. The payment of the interest will in itself take the case out of the operation of the statute (Wenman v. The Mohawk Insurance Company, 13 Wend. 267).
    IV. A chattel mortgage was assigned by the defendant as collateral security to the two notes of Betts & G-ay endorsed by the defendant to the plaintiff’s firm. The mortgage could not be enforced until protest of the notes. If the notes had not been paid at their maturity and the plaintiff had foreclosed the mortgage, the payment would have been reckoned from the time of the sale of the chattels, provided the sale had been made by the plaintiff within a reasonable time after the maturity of the notes (Porter v. Blood, 5 Pick. 53). It is only on the actual reduction of the pledged or mortgaged property to money that the same is treated as a payment and accounted for as such, and in the meantime the property is held as collateral (Brown v. Tyler, 8 Gray, 35).

       Whether a note made by the makers for the accomodation of the defendant, and so as that between them the makers were sureties, and the defendant was principal, would have a different effect, was not considered or determined.

   By the Court.—Monell, Ch. J.

The question in this case is, whether the statute began to run from the time the notes were transferred, or from the time of their payment. The referee has found the later period, regarding the payment of the notes as a payment by the defendant, so as to imply a new promise at that time.

It does not seem to me to be of any importance, so far as it affects the implied new promise, whether the plaintiffs received the notes in or as payment of the antecedent indebtedness, or merely as security for its payment. The transfer of a security by the debtor to be applied upon his debt, would imply a new promise, as well as an actual payment on account. But the implication would arise at the same time ; that is, by the act of transfer or payment. "

In this case, the last act of the defendant was the transfer of the securities, more than six years before suit brought; and the implication which is raised of a new promise is, not by the delivery, but by the subsequent payment of the notes by the makers.

It is not claimed that the defendant directed, or was even privy to the payment. But the payment was by third persons, of their own obligation ; the payment of which to the plaintiffs, as the lawful holders, the law required. This, in the view of the referee, was a payment by the defendant.

To make a part payment evidence of a promise to pay the balance, it must occur under such circura stances as are consistent with an intent to pay such balance (Miller v. Talcott, 46 Barb. 167). Actual payment by a debtor, or by his authorized agent, is consistent with such an intent. It is such a recognition of the debt as will authorize the assumption of an intention to pay the balance.

But when the payment is not by the debtor, but by a third person, his authority, derived from the debtor, to bind bis principal to a new promise by implication from the fact of payment, must distinctly appear, and can not be inferred from the payment alone (Read v. Hurd, 7 Wend. 408).

To make the payment of the notes a payment by the defendant, it must be assumed that the makers were acting under the authority, or by the direction of the defendant. There was no such express authority or direction in this case; and it can be implied only from the obligation of the makers to pay a debt which the defendant had parted with by transfer to the plaintiffs, and which at the time of its payment belonged absolutely to his creditor.

An implication of an authority to the makers of the notes to make the payment on behalf of the defendant, must have arisen, if at all, at the time of the transfer.

The transfer might be construed into a direction to the makers to pay the amount to become due upon the notes to the plaintiff. But such direction could not of itself continue until the maturity of the note, so as to make the payment such an act of the defendant as would authorize, at that time, a new promise to pay. In Creuse v. Defignoiux (10 Bosw. 122), the court say: “An agent can not bind his principal by an implied promise made within six years, where the authority to make it was more than six years before. The statute would commence running from the time the authority was given, not from the time the agent made the new promise.”

In Pickett v. Leonard (34 N. Y. 175), the assignee of a debtor under a general assignment for the benefit of the debtor’s creditors, made a payment out of the assigned property to the creditor. Within six years thereafter, the debtor was sued for the balance of the debt. It was held that such payment did not take the case out of the statute. By virtue of the assignment the creditor became entitled to receive, and the assignee was bound to pay. But there the obligation ceased. The assignee was not the agent of the assignor for any purpose other than to pay his debts, and could not, either expressly or impliedly, make for him a new promise. Justice Hurt says: “ The assignor places his property in the hands of the assignee for the purpose of paying his debts, who, from the proceeds, pays a creditor a part of his debt; and this is interpreted into saying, ‘My assignor is willing to pay the residue of your debt, and on his behalf I promise you that he will do so.’ The assignor might well answer, ‘ I have given no such authority and made no such contract.’ ”

It seems to me the cases are not distinguishable. The transfer of property in trust to pay debts generally, is the same as the transfer to pay a single debt, and the effect of the payment must, therefore, be the same. But no more in the one than in the other, is the person making the payment the agent of the debtor, so that he can bind him by a promise. Nor is the authority to make the payment less in one case than in the other.

How, then, can the payment of the note be construed into a promise to pay the remainder of the debt ?

In Read v. Hurd (supra) one Skiff being indebted to Hurd, the maker of a note, made a payment of the amount of his debt to the plaintiff, to be applied upon the note, and it was endorsed thereon. Hurd was not present, nor did he request the payment. It was held that it was not a payment by the defendant, and that no new promise could be implied from it.

There was some difference in the facts in the case of Harper v. Fairly (53 N, Y. 442), which the respondent’s counsel claimed distinguished it from the case now before us. In that case the creditor retained the transferred note for a number of years, receiving the interest, but the principal was not paid until several years after the transfer. This fact is alluded to in the opinion more, I think, to give emphasis to the principle decided, than as constituting any essential element in it. The court had charged the jury that the payments made by the maker of the note had the same effect to take the case out of the statute, as if made by the defendant. In holding that to be error, the character and not the time of payment, was made the essence ; and the court say that the reason that it is so is, that a part payment is an acknowledgment by the debtor of his liability for the whole demand. But to bring a case within the reason of the rule, the part payment must have been made by the party to be charged with the effect of it, or an agent authorized thus to charge him. After citing Pickett r. Leonard (supra) and other cases in support of the rule, the court continues to say, “The payment in the present case was not made by the debtor, nor with his knowledge, but by one whose obligation had been transferred several years previously to the creditor as security for the debt.” Then alluding to the payment long after the maturity of the note, they proceed, “ There could consequently be no implied authority to make the payment at the time it was made.” These latter words, as I have already said, emphasize the rule and forcibly illustrate its propriety, but do not confine the principle to a payment made long after the maturity of the transferred security. There can be no difference. It is the payment, and not the time of the payment, from which the new promise is to be implied. Laches or delay can not change the rule. If the payment is authorized, it must be authorized when it is made, and the time is not essential.

The new promise must recognize and apply to the old debt, and the transaction must be such, that it can be fairly inferred from it that the defendant intended to pa.y the residue.

In the language of Harper v. Fairly (sup.) “it is impossible to spell out of the transanction any new promise of the debtor, cotemporaneous with the part payment, to pay the residue of the debt.”

An implied promise, like an express promise, must not only be an admission of the existence of the debt, but also a recognition of a liability to pay it; and no other or greater effect can be given to a part payment, than that from it a new promise containing all the elements above stated may be implied.

There is no doubt that when the defendant transferred the notes to the plaintiff, that act could have been construed into a new promise. It admitted the existence of the debt, and was a recognition of the defendant’s liability to pay it. And from that time the statute would have began to run. And that is so whether the notes were taken in actual part payment, or as security for the part payment of the debt (Turney v. Dodwell, 24 Eng. L. & Eg. 92).

Notes and bills, when received from a creditor upon antecedent indebtedness, are never a payment, unless expressly made so ; but the effect upon the statute is the same. Hence in the case just cited, it was held that the word “ payment” must be taken in its popular sense, and to exclude the species of payment in question. In this view the court say the acknowledgment of liability as to the remainder of the debt is not altered by the fact of the notes not being paid. That the acknowledgment is from the delivery of the notes, and that such delivery is a sufficient acknowledgment.

Suppose the notes transferred had not been paid* would the plaintiff have conceded that the transfer was not a payment % I think not. Then if the delivery of the notes was, to save the statute, the payment, how can it be claimed that there was another payment at a subsequent day, which would also save the statute 1

The effect of the transfer of the notes as raising by implication a new promise, was complete when the transfer was made, and could not be extended to the subsequent act of the makers of the notes, when the defendant was not present, and which act was not with his authority nor by his direction. Hence, the case fails to show a new promise by the defendant at any time after the delivery of the notes, or by any one having authority to make a new promise for him, and* therefore, the statute began to run from such delivery, and not from the time when the notes were actually paid.

For these reasons I think the referee erred in hie conclusion of law.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick, J.

I think the judgment should be reversed. The only fact that supports the judgment as against the statute of limitations is that the makers of the promissory notes given to plaintiff by defendants as security for the defendants’ indebtedness, paid the notes within six years. Then to make this evidence of the new promise by the defendant, Judge Rapallo. said, in Harper v. Fairley (53 N. Y. 445), “the part payment must have been made by the party to be charged with the effect of it, or an agent authorized thus to charge him.''’ He also said that the reasoning: of the cases determined “that a part payment, whether made before or after the debt is barred by the statute, ■does not revive the contract, unless made by the debtor himself or by some one having authority to make a new promise on his behalf for the residue.” Under this case the dispute is settled, in my mind, by inquiring if the makers of the note were the agents of the defendants, either to make the payment of the notes or to give a promise on behalf of the defendants to pay the remainder of the debt. They were not agents to make the promise, unless their relation to the notes given as •security made them agents of the defendants to pay the note. There is no evidence that the makers of the note ever had any dealings or communication with the defendants, except by giving the notes for a valuable consideration in a transaction altogether disconnected with the present case. Then, when they paid, did they act for the defendant in making the payment? Perhaps it is well to say that they were not makers for the -accommodation of the defendant, and so that between them the makers were sureties while the defendant was principal. But they were on the notes, which they paid acting on principal obligations of their own, arising not from any authority given or agency made by the defendant, but from their contract with the defendant which the defendant had assigned to the plaintiff. At the time of the payment the defendant could not have forbidden or stayed it, or modified it or given any particular direction to it. Indeed, if we look nicely into the matter, the makers never made any payment, so far as they were concerned, on the original indebtedness. They only paid their own notes, and the money paid was afterwards or cotemporaneously applied, by the plaintiff’s firm, on the principal indebtedness, by virtue of the arrangement made between the ■defendant and them, at the time of the transfer of the note by the defendant.

Nor was this application of the money by defendant’s authority given beyond the six years, a payment by defendant of a kind to take the case out of the statute. It could only do so by giving to the transfer, in which alone the defendant took actual part, the effect of a promise to pay the remainder of the debt, in case of payment of the notes. There is no reason, it seems to me, why such a promise is not barred by the statute of limitations, as much as the original assumpsit of the defendent.

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

Freedman, J. (dissenting).

The plaintiff sued as the surviving partner of Isaac H. Smith & Son, to recover a balance due on an account for goods sold and delivered to the defendant by the said firm.

The defendant rested his defense on the statute of limitations.

The referee held that the account between the parties was a mutual, open, and running account, and that the last item proved in the account was the receipt by plaintiffs’ firm, within six years of the commencement of the action, of the proceeds of certain notes made by third parties and transferred by the defendant, with his endorsement thereon, to said firm, on account of his indebtedness. He accordingly gave judgment for the plaintiff.

The defendant appealed.

The referee clearly erred in treating the account between the parties as a mutual, open, and current account within the meaning of section 95 of the Code.

The provision of the Revised Statutes of 1830 (2 R. S. 296, §23), was “that in all actions of assumpsit, •debt, or account, brought to recover any balance due upon an open, mutual, and current account, the cause of action shall be deemed to have accrued from the time of the last item proved in such account.”

But section 95 of the Code contains the additional words, where there have been reciprocal demands between the parties.” This means cross-demands, matters of set-off, or a counterclaim ; something upon which the other party could sustain an action (Peck v. the N. Y. and Liverpool U. S. Mail Steamship Co., 5 Bosw. 226).

The account before the referee, though a long one, consisted of items of charge to the defendant, and nothing but credits for payments made and for empty barrels returned by the defendant. This not being sufficient, plaintiffs’ claim was barred by the statute, unless taken out of it in some other way.

It is insisted that this was done by a payment of a portion of plaintiffs’ demand within the six years, and that the evidence and the legal effect of the findings of the referee upon this point are sufficient to sustain the judgment upon this theory.

Section 110 of the Code, which requires that an acknowledgment or new promise shall be in writing, did not change the nature or effect of a payment of principal, or interest, or part thereof. On the contrary, it recognized and continued the rule as established by the decisions of the courts. Such rule depends wholly upon the reason of those decisions. The reason of the rule that a part payment made on account of a claim has the effect to take a, case out of the operation of the statute of limitations, or rather to enlarge the time during which an action may be brought, is that such payment in part is an ackuowledgment by the debtor of his liability for the whole demand. From this acknowledgment a new promise on his part to pay the residue is implied. The undertaking of the debtor, as to the unpaid part of the debt, is thus, by a legal presumption, renewed and made to date from the time of the part payment (Harper v. Fairley, 53 N. Y. 442).

The undisputed facts in this case are, and the referee has found:

That on April 10, 1868, the defendant was indebted to plaintiffs’ firm in the sum of two thousand five hundred and one dollars and fifty-three cents on a running and open account, and that being thus indebted, the defendant, on April 14, 1868, endorsed and delivered to said firm two notes for five hundred dollars each, made by Betts & Gay, dated April 6, 1868, and payayable in two and five months, respectively, with interest from their date. The notes were secured by a chattel mortgage given by the makers thereof to the defendant, who assigned and delivered the same to plaintiffs’ firm, together with the notes. Upon the receipt of the notes they were entered in the books of plaintiffs’ firm by charging them to bills receivable, and crediting them to defendants’ account. The notes were paid to plaintiffs’ firm as they matured, and the sums collected for principal thereon were carried to the credit of bills receivable, viz.: five hundred dollars on June 9, 1868, and five hundred dollars on September 17, 1868. The action was commenced June 5, 1874.

Upon this state of facts the first question that presents itself is, whether the part payment is to date from the time of the delivery of the notes to plaintiffs’ firm, or from the time of their collection.

As a general rule, if a vendor of goods receive from the purchaser the note of a third person, at the time of the sale (such note not being forged, and there being no fraud or misrepresentation on the part of the purchaser as to the solvency of the maker), it is deemed to have been accepted by the vendor in payment and satisfaction, unless the contrary be expressly proved (Whitbeck v. Van Ness, 11 Johns. R. 409; Breed v. Cook, 15 Johns. R. 341).

The contrary may be shown by a contract of guaranty (Monroe v. Hoff, 5 Denio, 360), or a contract of endorsement (Darnall v. Morehouse, 45 N. Y. 64; Fowler v. Clearwater, 35 Barb. 143).

But when the note or bill of a third person is not taken at the time of the sale, but upon a precedent debt, the presumption is the other way, In such case the presumption is that the note or bill was not taken in payment and satisfaction of the precedent debt, and the onus of establishing that by the agreement of the parties it was so received, is upon the debtor (Noel v. Murray, 13 N. Y. 167; Gibson v. Tobey, 46 N. Y. 637).

In the case at bar the notes were given on account of a precedent debt. They were endorsed by the defendant, and, as additional security, a chatttel mortgage to secure their payment was also transferred. There is no proof of an agreement, or from which an agreement can be inferred, that they were taken in actual satisfaction of the debt pro tanto. Under these circumstances the payment made by the defendant is to date from the time of the maturity of the notes, and not from the time of their delivery to plaintiff’s firm. The second note matured September 19, 1868, within six years of the commencement of the action, and as the payment represented by it was not directly appropriated to a specific item in the account between the parties, in which case the statute would have been left to its operation as to the rest of the items, its effect was to save the whole balance of the account. Where the debtor knows that there exists against him a general account of items, and he designedly pays or furnishes something to lessen the demand on such general account without discrimination, and at that time does not deny his liability for the other previous items, the law reaches an implication of his acknowledgment of the whole account (Peck v. The N. Y. & Liverpool U. S. Mail Steamship Co., 5 Bosw. 226, 337).

It is claimed, however, by the appellant that before a part payment can be construed into an acknowledgment by the debtor of his liability for the entire demand, so as to take the case out of the operation of the statute, it must appear that it was made by the debtor himself, or by his authorized agent.

As a general proposition this is true. The courts of this state have refused to follow the rule of decision made at one time in England, and to some extent in this country, under which, by a constructive equity, judicial refinements came near abolishing the statute of limitations altogether, and have reached the conclusion that the said statute is entitled to the same respect as other statutes. The doctrine that the time for bringing the action might be enlarged, or an outlawed demand revived, by a partial payment not made by the immediate debtor but by a joint contractor, an assignee or a trustee, is therefore no longer recognized in our courts (Roosevelt v. Marks, 6 Johns. Ch. 266, 292; Picket v. King, 34 Barb. 193; Bloodgood v. Bruen, 4 Seld. 362; Shoemaker v. Benedict, 1 Kern. 176, 185; Winchel v. Hicks, 18 N. Y. 558; Pickett v. Leonard, 34 Id. 175; McLaren v. McMartin, 36 Id. 88).

But at the same time the principle has been rigidly maintained, and it is still in force, that a recognition or ratification of the agency of the person making the payment will bind the debtor.

Thus in Winchel v. Hicks (18 N. Y. 558) it has-been held that if a surety request the principal to make a payment of the interest on the obligation, and it is accordingly made and endorsed, the act is to be regarded as the acknowledgment of both parties.

In Munroe v. Potter (22 How. 49; S. C., 34 Barb. 358), Morgan, J., held that the surety on an overdue-note, who, with knowledge of the facts, took money of the principal to the holder of the note, and had it endorsed thereon as so much paid by the principal, was bound by the acknowledgment which the act indicated,. and which he participated in and approved of at the time it was done.

In Huntington v. Ballou (2 Lans. 120) the defendant was an accommodation indorser of a note. Some time after the maturity of the note, the maker, without defendant’s authority or knowledge, paid to plaintiff the interest due thereon, and took a receipt reciting that the same had been received from and paid by the defendant. The plaintiff showed the receipt to the defendant, and the latter thereupon examined it, and expressed his approval. It was held that by such act the defendant adopted the payment as his own, and became entitled, as between him and the other parties liable on the note, to the benefits secured to Mm by the receipt; that, as to the plaintiff he assumed the legal liabilities consequent upon such payment to the same extent as if it had been actually made by him ; and that for these reasons the payment took the case out of the operation of the statute of limitations as to such defendant.

The case of the First national Bank of Utica v. Ballou (49 N. Y. 155), presented substantially the same state of facts as the case last referred to, and the decision was precisely the same. In delivering the unanimous opinion of the court of appeals, Bapallo, J., says: “ Although Shearman (the maker) was liable on the same notes, yet there was nothing in that circumstance to prevenían arrangement between the parties by which he should make this payment for and on behalf of the defendant; and if he did so, it was immaterial whose money he used. If the defendant had made the pay • ment in person, but Shearman had furnished the money, the payment would be none the less effectual as an admission of liability to bind the defendant. And if the defendant requested Shearman to make it in defendant’s name, the effect of the payment as a recognition of the defendant’s liability, would not be, diminislied by the fact that Shearman used his own money. The subsequent ratification of a payment made in that form is as effectual a recognition of liability as if the payment had been made by previous request.

In the present, case the notes were paid by the makers at maturity as contemplated by all the parties, and as the defendant by his contract of endorsement had undertaken to see that they should be paid. By handing them to plaintiff's firm in the manner he did, and failing to make a specific appropriaton of them, the defendant, as has already been shown, authorized the said firm to apply the payment, when received, in reduction of his general indebtedness. By this arrangement the defendant secured to himself the benefit of an extension of credit. The mortgage could not be enforced until default in the payment of the notes, and the taking of the notes suspended the right of action of plaintiff’s firm against the defendant to the extent of one thousand dollars until the maturity of the notes. Ho reason exists, therefore, why the defendant should not be held to have given implied authority, if not express, to the makers of the notes to pay the same to plaintiff’s firm at maturity.

The case of Harper v. Fairley (53 N. Y. 442), is clearly distinguishable. In that case the payment was made without the knowledge of the debtor several years after the collateral obligation had matured. It was for this reason that the court of appeals held that there could be no implied authority to make the payment “ at the time it was made.” It was conceded, however, that if certain facts sworn to by the plaintiff had been submitted to the jury and found in his favor, the express assent of the defendant to this payment would have been established, and that such assent would have been sufficient. These facts were controverted and were not submitted to the jury; and the instruction of the judge authorized the jury to render a verdict for the plaintiff, even though they should disbelieve his evidence in that respect. It was for this reason that the said evidence could not avail the plaintiff on that appeal.

Moreover, the testimony in the case at bar, shows a ratification. Plaintiff’s bookkeeper testified that subsequently to the payment of the two notes he had a conversation with the defendant concerning them, and that in such conversation the defendant said that he had paid so much on those notes, that he owed more,, and would pay the balance. This testimony remained uncontradicted, and is therefore sufficient within all the authorities. Notwithstanding the statutory requirement that acknowledgments and new promises should be in writing, a part payment may be proved by the oral admission of the party (First National Bank of Utica v. Ballou, 49 N. Y. 155, 158). So where an act, though unauthorized, is apparently for the benefit of the principal, a very slight matter will serve to make out a ratification, and when it plainly appears that the principal at the time did mean to' ratify that which apparently was done for his benefit, the law does not compel the court to deny him the privilege. He must be taken to have considered for himself whether the act done was, on the whole, such as he approves and desires to be bound by (Commercial Bank of Buffalo v. Warren, 15 N. Y. 577).

The decison of the referee being right and sufficiently supported, notwithstanding the erroneous effect given to the account between the parties, the judgment appealed from should be affirmed, with costs.


author: Curtis, J. (at special term).

text:
    SPECIAL TERM,
    MAY, 1874.
    ISAAC S. ISAACS v. AUGUSTIN DALY.
    I. LITERARY PROPERTY.
    1. Titles to books, plats, engravings, &c.
    1. Words which in their ordinary and universal use denote the virtues, such as “Charity,” “Faith,” can not ordina/rily he appropriated by any one as a title or designation for a book, play, &c., written, &c., by him, treating or enforcing, symboliz- • ing, &c., a virtue, to the exclusion of any other person who may write, &c., a book, play, &c., treating upon enforcing, symbolizing, &c., the same virtue.

      a. Bad faith, &c.—There may be cases where a title is made use of in bad faith, or to promote some imposition, or to inflict a wrong, when a court of justice should interfere to prevent its use or to compensate a party who has in consequence sustained an injury.
    Motion for an injunction.

      Adolf L. Sanger, for the motion.

      A. Oakey Hall, opposed.
   Curtis, J. (at special term).

This action is brought to restrain the performance of a play called “ Charity; ” also for an accounting of profits, and for twenty thousand dollars damages. December 19, 1873, the plaintiff deposited in the copyright office at Washington the title of a play called “Charity,” and copyrighted such dramatic composition. In January following, the defendant purchased the exclusive right, as he alleges, to possess and use manuscript copies of an entirely different play by William S. Gilbert, Esq., also called “ Charity,” the latter then being played at The Haymarket, London.

The defendant in February following prepared it for performance, and on the 27th of that month advertised it for a public representation on March 3, the day subsequent to the hearing of this motion for an injunction.

It is objected that the action should have commenced in the federal courts. This court has long exercised a jurisdiction to protect literary property, and the act of congress in 1870, conferring jurisdiction in this class of suits, upon the federal courts, appears to afford an additional remedy, without affecting the pre-existing jurisdiction in respect to the rights the plaintiff has in the play, and which exist at common law, independently of all statutes (Palmer v. De Witt, 47 N. Y. 532).

The other question as to whether the defendant should be enjoined from performing the play under the name of “Charity,” is not free from difficulty. The affidavits fail to satisfy me that the plaintiff would be injured on the ground claimed by him, that Mr. Gilbert’s play has been unfavorably received and criticised, when played. It is not alleged that there has been any bad faith on either side. The complication appears to be purely accidental. Should the dramatic performance be enjoined because the word “ Charity ” is the title of each? No question exists as to any imitation or similitude in Mr. Gilbert’s play.

It is simply to be considered whether the use of the word “Charity” in Mr. Isaac’s play fora title, and his copyrighting the play, give him the exclusive use of that word as a title in the public performance of plays. Charity is a virtue that has been symbolized and portrayed in every stage and department of art for all ages.

Would it be just that an engraver who has copyrighted a design that he entitles “ Charity,” should restrain another engraver from vending to the public a different design, which the latter also designates as “Charity,” both being works of art symbolizing the same virtue, but differing in plan and execution % If this question is answered in the affirmative, the same principle might be invoked by a publisher, who has copyrighted a sermon called “Charity by—--,” to enjoin the sale by another publisher of a sermon utterly different in composition, also called “Charity,” written by some other person.

The law favors literature and art, and while it seeks to protect all in the enjoyment of their property and their rights, it does not limit and abridge the field of occupation and enterprise. The use of the word “Charity” as a designation for any work of art or literature can not ordinarily be monopolized by any one- person- There may be occasions when a title is made use of in bad faith, or to promote some imposition, or to inflict a wrong, when a court of justice should interfere to prevent its use, or to compensate a party who has in consequence sustained an injury. But the present case does not appear to be one where the court is called .upon to interfere for any of these reasons.

Both parties having acted in good faith, it would be inequitable to subject the defendant to loss, who has prepared for representation and advertised Mr. Gilbert’s play, under the name of “ Charity.” Nothing is shown by which it appears that the plaintiff would sustain loss by changing the name of his play, if he desired to do so, and I do not ffnd any case where the court has granted a plaintiff under the circumstances appearing in the papers, the relief he seeks by the present application.

The motion for an injunction must be denied, with costs.


author: Vah Vorst, J. (at special term).

text:
    SPECIAL TERM,
    JUNE, 1875.
    WILLIAM J. PEASE v. MAURICE J. WALSH.
    I. CONTRACT ILLEGAL.
    1. No right of action can spring out of it, whether it be prohibited by positive law, or is opposed to public policy, or contrary to good morals.
    H. DOCK DEPARTMENT OP THE CITY OP NEW YORK.
    1. Contract to use inpluence with that department, or all OR ANT OP ITS MEMBERS, TO PROCURE A LEASE OP CERTAIN PREMISES IS VOID WITHIN THE ABOVE PRINCIPLE.

      a. Thus when the complaint averred that the plaintiff was employed by the defendant to use his influence with the department of docks, either with all the commissioners thereof, or some one of them, and in such manner as he might see fit and proper, for the purpose of procuring a lease of certain piers for the term of one year or more, at as low a rent as fifty thousand dollars per annum, for which use of his influence defendant agreed to pay him fifteen thousand dollars if the lease was procured on those terms; that he had used his influence with said commissioners, had had many interviews with some one of them, and had finally succeeded in procuring a lease from the dock department at annual rent of forty-five thousand dollars for one year, with a privilege of a renewal for fifteen years; but did not show the plaintiff’s business or profession, or that the services to be rendered by him, were those of a lawyer, broker, agent, or person devoted to any special lawful pursuit, in itself either useful or valuable.

      Held,

      a demurrer to the complaint to be well taken.

      Moody P. Smith, for the plaintiff.

      H. J. Scudder, for the defendant.
   Vah Vorst, J. (at special term).

No right of action can spring out of an illegal contract, nor will the court aid either party to enforce a contract which is prohibited by positive law, or is opposed to public policy, or if it be contrary to good morals.

“ Where the consideration is vicious, the contract begets no obligation.”

The plaintiff alleges in this case, that he was employed by the defendant “to use his influence” with the department of docks of the city of New York, either with all or with some one member of the same, and in such manner as he might see fit and proper, for the purpose of procuring for the White Star Line Steamship Company, a lease of piers Nos. 51 and 52 on North River in the city of New York, for the term of one year or more, at as low a rent as fifty thousand dollars per annum, for which use of his influence, the defendant agreed to pay the plaintiff fifteen thousand dollars, if the lease was procured on those terms.

The plaintiff claims to have used his influence with the commissioners of docks, and to have had many interviews with some one member of the same, and to have finally succeeded in procuring a lease from the dock department, for the “White Star Line,” a.t an annual rent of forty-five thousand dollars for one year, with a privilege of a renewal for fifteen years.

The complaint does not show the plaintiff's business, or profession, nor that the services to be rendered by him were those of a lawyer, broker, agent, or person devoted to any special lawful pursuit, in itself either useful or valuable.

The consideration to support a contract must have some appreciable value, moving to the party obliged.

The cause of action disclosed by the complaint may be regarded either as a sale of the plaintiff’s “influence” in the direction indicated, or as an agreement to exercise it, over all or some one of the members of the dock commission, for the sum of fifteen thousand dollars, the payment, however, dependent upon the success of this influence, to secure the lease in question.

Judged by the allegations in the complaint, the influence was successful, for as plaintiff claims it secured a lease for fifteen years instead of one, and at an annual rental five thousand dollars less than the sum the defendant was willing to pay for a lease of the piers in question.

It may be well judged, that the members of the dock commission are not to be. moved to the granting of leases of the public docks and piers through the influence of the plaintiff, exercised over one or more of its members.

To yield to such suggestions, and throw a loose rein on such practice, would lead to the sacrifice of public and private interests and morals. How such influence through one, over all the members of the commission, could be exercised in a truly useful manner, is not disclosed, and it is difficult to be conceived.

The dock commissioners are public officers, upon whom rest responsible duties. They have the care and oversight of the docks, wharves, and piers.

The board may appropriate any of such wharves or piers to the sole use of special kinds of commerce, and may in the name and for the benefit of the corporation of the city of New York, lease any or all of such property for a term not exceeding ten years, and contract for renewals of such leases at advanced rates for additional terms of ten years each.

All leases, other than for districts appointed by the board to special commercial interests shall be made at public auction to the highest bidder (Session Laws of 1871, ch. 574; Laws of 1870, ch. 383, § 37). The setting aside of districts for special kinds of commerce is doubtless a great public convenience. The result is to gather, and perhaps limit to some distinct quarter, the separate branches of commerce, of which this city is the center.

Such appropriation and designation would depend upon the good, impartial judgment of the commissioners, so as best to meet the convenience of all concerned, and is not to be controlled or swayed by the influence of a party interested in procuring a lease for a particular steamship line, of a pier, to be devoted to its exclusive use.

Any secret influence of this kind could not be other than pernicious.

With regard to leases to be granted to the highest bidder at public auction, no influence to control, thwart, or defeat such method could be sanctioned.

The tendency of judicial decision is to frown upon all efforts, by the exercise of illegitimate,influence, to control the deliberations, judgments and action of public bodies and officers. In Harris v. Roof's Executors (10 Barb. 489), it was decided that no action will lie for services as a lobby agent, in attending to a claim against the state before the legislature; agreements in respect to such services, being against public policy and prejudicial to sound legislation. In Davidson v. Seymour (1 Bos. 88), the plaintiff was employed by the firm of H. C. Seymour & Co., to procure for the firm, from the directors of a railroad company, a contract for the building of its road, and agreed to pay him for his services should he succeed in obtaining the contract, the sum of ten thousand dollars. The contract was obtained by the plaintiff, through the influence with the directors of third parties employed by him, his own agency being concealed ; it was held that the agreement was contrary to morality and public policy. In Gray v. Hook (4 Comst. 449), it was held that an agreement to pay a person for his aid and influence in obtaining an office is illegal and void.

Sedgwick v. Stanton (14 N. Y. 289) and Burke v. Child, decided in the supreme court of the United States in October term 1874, would seem to establish that claims of the nature of the one disclosed in this action can not be enforced by the courts.

This latter is a highly important case, and whilst it may be said that it announces nomew principle, its cogent reasoning applies a law of condemnation to the present and kindred claims.

That any influence was in fact exercised over any member of the dock commission, to secure the lease in •question, rests exclusively upon the plaintiff’s allegations, made for the purpose of recovering his alleged •compensation from the defendant.

The question is now raised upon a demurrer to the plaintiff’s complaint.

There should be judgment for the defendant on the demurrer, with liberty to the plaintiff to amend on the usual terms.


author: Van Vorst, J. (at special term).

text:
    SPECIAL TERM,
    JUNE, 1875.
    CATHARINE DONOVAN v. THE COMPAGNIE GENERALE TRANS-ATLANTIQUE.
    l. PLEADING.
    1. Where a defendant relies on certain facts which can constitute a defense only as connected with the basis of the cause of action, he must in his answer distinctly aver and show such connection.
    1. APPLICATION OF RULE.
    Plaintiff brought an action against a common carrier for the non-delivery and loss to her of a certain case of merchandise, delivered to it at a certain time. An answer averring that plaintiff did deliver baggage and merchandise at the time, with the intention of being smuggled, and that on her arrival at the port of New York, she did smuggle ashore from the steamer large quantities;' which formed part of her baggage, does not comply with above rule. It is lad, as not distinctly averring that the specific case for the loss of which the action was brought, and which formed the basis of the cause of action, was shipped with such intention.
    n. UNLAWFUL INTENTION.—SMUGGLING.
    1. When not a defense to a gabbier fob the loss of the GOODS.

      a. It is not when the carrier is ignorant of the intent, has done no act to facilitate it, and is implicated therein.
    m. COMMON CARRIER.
    Goods shipped with intent on the part of the shipper to smuggle them:.
    1. Effect of when the carrier is ignorant of the intent, does no act to facilitate it, and is not implicated therein.

      a. It forms no defense to an action, by the carrier for the freight.

      b. It forms no defense to an action by the shipper, against the carrier, for the loss of the goods.

      W. H. McDougall, for plaintiff.

      Walter L. Livingston, for defendant.
   Van Vorst, J. (at special term).

The action is against the defendant as a common carrier, for the nondelivery to the plaintiff, and for the loss to her, of a case of merchandise entrusted to the defendant for carriage.

I do not understand the third defense, and which is claimed by the plaintiff to be irrelevant, to aver distinctly that the case” in question, contained merchandise shipped by the plaintiff with the intention of being smuggled into the United States in violation of the revenue laws.

The averment that she did deliver baggage and merchandise at the time, for such purpose, does not establish that the property in question was of such character, or shipped for such unlawful purpose.

In order that the defense be pertinent and relevant, if otherwise good, it should have been distinctly alleged that the case of goods for the value of which this action was brought, was itself of such objectionable character.

It by no means follows from the averment, that on her arrival at the port of Hew York, she did smuggle ashore from the steamer large quantities of merchandise which formed part of the baggage, that this specific “case” of merchandise lost to her, was shipped with the intention to evade the fiscal laws of this country.

Such facts might be some evidence, but not necessarily conclusive, that the goods contained in the missing case, were of that character.

But in pleading, it is not evidence which is to be set forth, but issuable facts.

In pleading defenses of this character, to avoid liability, the defendant should be held to clear and positive averments, and should leave no room for doubt that he means to charge «distinctly, that the specific goods, the value of which is the subject of the action, were shipped with the intention of being smuggled.

But aside from this defect in the statement of the defense, I do not think that the carrier can successfully interpose a defense of the character indicated. It is entirely irrelevant.

He is not, according to his own showing “partioeps criminis T

When he received the goods, he was entirely ignorant of the plaintiffs design, and never became implicated therein.

In Holman v. Johnson (Cowp. 34), the plaintiff residing at Dunkirk had sold to the defendant a quantity of tea, which was intended to be smuggled into England. The plaintiff himself had no concern in the smuggling ; it was held he might recover.

But where the seller, knowingly, does any act calculated to facilitate the smuggling, such as packing the goods in a particular manner, he is regarded as "particeps criminis,” and can not recover (Briggs v. Laurence, 3 Term R. 454; Tracy v. Talmage, 14 N. Y. 170). Cheney v. Duke, 10 Gill & Johnson, 1124, however, decides, that in an action to recover the purchase price for a slave, who the vendor knew was to be removed out of the state, without a bill of sale being taken, as the law of the state required, knowledge alone by the vendor of the illegal, or prohibited purpose, on the part of the vendee, unaccompanied by any act in furtherance of its execution, was no bar to a recovery.

There was nothing illegal in the service which the carrier undertook to perform. His business was to carry merchandise, from one port to another, for hire.

The undisclosed purpose or design of the shipper, was no concern of his. It was presumptively good. He was entitled to be paid for the carriage, and if he was ignorant of the shipper’s intent to smuggle, his claim for freight money could not be defeated.

The wrong in this case consisted in the plaintiff’s wicked intention to evade the fiscal laws. But such intention was not carried out. It never ripened into an actual offense so far as the goods in question were concerned. The plaintiffs might have yet repented. As was said in Pellecot v. Angell (2 Crompt. Mees & Ros. 312): The plaintiff sold the goods ; the defendant might smuggle them if he liked, or he might change his mind the next day.” And in this case, the plaintiff might yet, on the arrival of her goods in Hew York, had they not been lost to her through the carrier’s acts, or negligence, have paid the duty, or delivered them in bond.

Contracts for an illegal purpose, or which are against the policy of the law, can not in general be enforced.

But there was nothing in the defendant’s engagement to carry the goods which was illegal.

And it can not be maintained that a contract which is itself free from vice, can be avoided, because it may possibly facilitate an illegal transaction (De Groot v. Van Duzer, 17 Wend. 170).

The motion to strike out is granted, with costs.