text:
    John Welsh, Appellant, v. Edward Fallihee, Respondent.

      Pleadings — issue of title to real estate — costs.
    In an action brought to recover damages for an assault and battery, the defendant answered, alleging that immediately prior to the alleged assault the plaintiff entered upon the defendant’s property on which was an ice house, stood in the doorway thereof, obstructing the defendant’s business, and that the defendant removed the plaintiff, using no unnecessary force, etc.
    There was no certificate that any question of title to real estate was raised upon the trial. The plaintiff recovered a verdict for twenty dollars damages, and claimed a full bill of costs.

      Held, that the allegations of the answer amounted simply to a claim of the right of possession by the defendant and did not raise an issue of title to real estate, and that the plaintiff was not entitled to a full bill of costs.
    Appeal by the plaintiff, John Welsh, from an order of the Supreme Court, made at the Monroe County Special Term and entered in the office of the clerk of the county of Steuben On the 23d day of September, 1893, denying the plaintiff’s motion for a retaxation of costs.
    P. Merville Page, for the appellant.

      Poison <& Poison, for the respondent.
   Lewis, J.:

The action was for assault and battery. Defendant’s answer was, in substance, that plaintiff, immediately prior to the alleged assault, entered upon defendant’s close and property on which was an ice house into which the defendant was at the time engaged in putting ice, and stood in the doorway of the house and obstructed the defendant’s business, and that defendant removed plaintiff away from the door, using no unnecessary force, etc.

There was no certificate that any question of title to real estate arose upon the trial. The plaintiff had a verdict for twenty dollars for his damages, and claimed a full bill of costs, upon the theory that the title to real estate was in question ; the cleric taxed twenty dollars costs, and the Special Term denied plaintiff’s motion for retaxation.

We think the Special Term was right. The allegations of the answer amounted simply to the claim of the right of possession by defendant; it did not raise an issue of title to real estate.

The case of Langdon v. Guy (91 N. Y. 660) was a much stronger case for a full bill of costs than this, and yet the Court of Appeals held against the plaintiff’s contention.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Dwight, P. J., Haight and Bbadley, JJ., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    Josiah H. Helmer, Respondent, v. Bartlett Minot, Appellant.

      Statute of Limitations — what establishes a prima facie case of the debtor's absence from the State— bwrden of pi'oof.

    In an action brought to recover from the maker of a promissory note, by the indorser thereof, the amount the indorser was compelled to pay the holder, with interest, the defense relied upon was the Statute of Limitations. It was shown that the note was payable at the end of one year and was dated November 21, 1868; that the defendant was a resident of the city of Lockport, and was there engaged in business until the spring of 1869; that during the spring or summer of that year he removed his goods to the State of Illinois, and left Lockport, stating that he intended to remove to Illinois, and thereafter his correspondence with a certain resident of Lockport was dated from Bloomington, Illinois ; that he was not seen in Lockport until about the year 1872, when he returned with the dead body of his wife for burial. He then stated that he was residing in Dakota, to which place he intended to return within a week.
    There was also proof tending to show that he was seen in the State of New York some time thereafter, but when it was, did not appear. In 1891 he returned to the State of New York to attend his father’s funeral, at which time the action in question was commenced. He then stated that he had come from the State of Washington. The defendant’s brother testified that he was a resident of the State of New York, and did not know of the defendant’s residing within the State since he left it in 1869.

      Held, that aprima facie case was established of the defendant’s absence from the State, and that the burden of proof then rested upon the defendant to show his presence therein, after the indebtedness to the plaintiff accrued, for a sufficient length of time to bar the claim.

      Appeal by the defendant, Bartlett Minot, from a judgment of the Supreme Court in favor of tbe plaintiff, entered in the office of the clerk of the county of Monroe on the 14th day of July, 1893, upon the decision of the court after a trial at the Monroe County Circuit before the court without a jury.

      Delbert A. Adams, for the appellant.

      T. 8. Demi, for the respondent.
   Lewis, J.:

The plaintiff, at the request of the defendant, and for his accommodation, became a surety upon the promissory note of the defendant dated November 21, 1868, due in one year from date. The defendant failed to pay the note at maturity, and the plaintiff was compelled to and did pay the amount of the note to the holder.

This action was commenced on the 31st day of October, 1891, to recover the amount paid, with interest; the defense relied upon is the Statute of Limitations. The evidence tended to show that the defendant was, at the time of making the note, and up till the spring of 1869, a resident of the city of Lockport, and was there engaged in business; that he closed his business during the spring or summer of that year and shipped his goods to the State of Illinois, and left the city of Lockport, stating that he intended to remove to the State of Illinois ; lie thereafter corresponded with a resident of the city of Lockport, dating his letters from Bloomington, Illinois. Up to the time of leaving Lockport he had been seen in that city from day to day; after his removal he was not seen in Lockport until about the year 1812, when he returned there with the dead body of his wife for burial. He then stated that he was residing ip Dakota ; that he had taken up some government land there, and that he intended to return to Dakota in about one week. There was proof tending to show that he was seen in this State some time thereafter, but when, did not appear. He returned again into this State in the year 1891, to attend his father’s funeral, at which time this action was commenced. He then stated that he had come from the State of Washington. The defendant’s brother testified that he was a resident of Clarkson, in this State, and that he did not know of the defendant residing in this State since he left it in 1869.

These facts baying been established by the plaintiff, it made a prima facie case of absence of the defendant from the State, and put the burden of proof upon him to show his presence in the State after the indebtedness to the plaintiff accrued for a sufficient time to bar the claim, that is, for six years.

Section 401 of the Code of Civil Procedure provides that, “If, when the cause of action accrues against á person, he is without the State, the action may be commenced within the time limited therefor, after his return into the State.” (State Bank v. Seawell, 18 Ala. 619 ; Nixon v. Palmer, 10 Barb. 178; Mayer v. Friedman, 7 Hun, 218.)

The trial court found, as facts, upon evidence sustaining the findings, that before the maturity of the note, defendant, who prior thereto had been a resident of the city of Loekport, in this State, left said State and went to the State of Illinois, where lie took up Ins residence; and that ever since that time the defendant has continued to reside without the State, and has remained continuously without the State except upon two or three occasions when he was temporarily here as stated above, and held that the plaintiff was entitled to judgment against defendant for the amount due -upon the note. ¥e find no reason for disturbing the judgment. It should be affirmed.

Dwight, P. J., and Haight, J., concurred.

Judgment appealed from affirmed.


author: Haight, J.:

text:
    Frank J. Amsden, Respondent, v. George W. Jacobs, Appellant.

      An agreement explained by a receipt —• evidence of the intention of a pan'ty to a contract, when inadmissible — secret intention to emde a contract.

    On April 29, 1891, George W. Jacobs gave Frank J. Amsden an order to purchase for him 25,000 bushels of July wheat in Chicago at one dollar and five cents per bushel. Amsden immediately wired the order to his correspondents in Chicago, who purchased the wheat for one dollar and four and one-half cents per bushel, to be delivered during the month of July. On May 9,1891, Jacobs deposited with Amsden §1,562.50 as a margin or security, and took from him a receipt as follows
    “Received of G. W. Jacobs fifteen hundred sixty-two and 50-100 for margin on 25,000 bushels of Chicago wheat for month of July, 1891. I, the undersigned, agree to carry said wheat until July 1st, without further margin, and the deal is not to he closed until so ordered by said G-. W. Jacobs. “ Rochester, May 9i7i, 1891. F. J. AMSDEN.”
    On July thirty-first the wheat was delivered to Amsden’s correspondents in the form of warehouse receipts, of which fact Amsden was notified; and on the same day he notified Jacobs and asked for instructions, but none were received from him.
    On August fourth Amsden’s correspondents drew a draft upon him for the balance due on the wheat, and attached thereto the warehouse receipts. Amsden notified Jacobs of the fact and asked him to make provision for it, which he neglected to do. Notice was then given Jacobs that unless he took the wheat and paid for it, or made arrangements for carrying it, Amsden would sell the same at the Chicago Board of Trade at its opening on August eleventh, and hold Jacobs for any deficiency. On August eleventh the wheat was sold at ninety-one and one-half cents per bushel.
    In an action brought by Amsden against Jacobs to recover the deficiency arising upon such sale,

      Held, that the true meaning of the receipt or agreement was that the wheat was not to be sold prior to July, unless so ordered by Jacobs ;
    That the sale thereof on August eleventh was justified, and that Jacobs was liable for the deficiency arising thereon.
    Upon the trial of the action Jacobs was sworn as a witness, and was asked upon his direct examination whether, at the time he gave a certain order to purchase wheat, he intended to make an actual purchase thereof. In response to an inquiry of the counsel for the plaintiff, the defendant’s counsel stated that he did not expect to prove that Jacobs’ intention in that respect was known to the plaintiff. Objection being made, the question was excluded.

      Held, that such ruling was proper.
    A party cannot evade a contract or establish its invalidity by maintaining a secret intention to evade it, unknown to the person with whom he is contracting.
    Appeal by the defendant, George W. Jacobs, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 15th day of April, 1893, upon the verdict of a jury for $2,201, rendered by direction of the court after a trial at the Monroe County Circuit.

      Marsenus H. Briggs, for the appellant.

      Mathaniel Foote, for the respondent.
   Haight, J.:

This action was brought to recover a balance due upon a contract for the purchase of wheat. The plaintiff was a stock and grain broker, baying an office in tlie city of Rochester. On the 29th day of April, 1891, the defendant gave him an order to purchase for him 25,000 bushels of July wheat in Chicago at one dollar and five cents per bushel. The plaintiff immediately wired the order to Counsel-man & Day his.correspondents in Chicago, who purchased the wheat for one dollar' kid four and one-half cents per bushel, to be delivered during the month of July, but with the seller’s option as to the time of delivery -within the month. After the purchase and communication of the fact to the defendant, he, on May 9, 1891, deposited with the plaintiff $1,562.50 as a margin or security, and took from the plaintiff the following receipt:

“Received of G. W. Jacobs, fifteen hundred sixty-two and 50-100 (1,562.50) for margin on 25,000 bushels of Chicago wheat for month of July, 1891. I, the undersigned, agree to carry said wheat until July 1st, without further margin, and the deal is not to be closed until so ordered by said G. W. Jacobs.
“ Rochester, May 9th, 1891. F. J. AMSDEN.”

On the thirty-first day of July the wheat was delivered to Counselman & Day in the form of warehouse receipts. They notified the plaintiff, and he on the same day notified the defendant and asked for instructions, but none were received from him. On August fourth Counselman & Day drew a draft on the plaintiff for the balance due them on the wheat, and attached the warehouse receipt. The plaintiff notified the defendant of the fact, and asked him to make provision for it, which he neglected to do. Thereupon, notice was given to him that unless he took the wheat and paid for it, or made arrangements for carrying it, the plaintiff would sell the wheat at the Chicago Board of Trade at its opening on August eleventh, and hold the defendant for any deficiency. The defendant made no reply, but left the city of Rochester; and thereupon, on the eleventh day of August, the wheat was sold at ninety-one and one-lialf cents per bushel. The defense relied upon was to the effect that the plaintiff had committed a breach of contract on his part in failing to carry the wheat until it was sold by direction of the defendant, and that the contract was illegal and void under the statute, for the reason that the parties had not intended that any grain should be purchased or delivered.

The first question must be determined from the written agreement forming a part of the receipt. After acknowledging the receipt of $1,562.50, the plaintiff agrees to carry the wheat until July first without further margin, “ and the deal is not to -be closed until so ordered by said Gr. W. Jacobs.” The wheat was not only carried until July first, but it was carried until August eleventh, without further margin. The wheat was ordered sold by the plaintiff on August eleventh, after the defendant had neglected or refused to take care of it. It is claimed that the deal was not to be closed until so ordered by Jacobs. Is this a fair and reasonable construction of the language used ? If so, the plaintiff could be required to carry the wheat for any time, no matter Iioav distant. Under the margin paid he undertook to carry the wheat until July first, without further margin. After July first, he had the right to call for further margin if he so desired; but it would be useless for him to call for margin, provided he was under obligation to carry the wheat until it was ordered sold by the defendant. It consequently appears to us that the construction contended for is inconsistent with the preceding clause of the agreement, and that the true meaning is that the deal was not to be closed prior to the first of July unless so ordered by the defendant.

Upon the trial the defendant was sworn as a witness in his own behalf, and upon the direct examination was asked the following question : “ At the time that you gave this order to Mr. Morse to purchase for you, as he has testified, did you intend to make an actual purchase of the wheat ? ” The counsel for the plaintiff then inquired of the defendant’s counsel if he expected to prove that the defendant’s intention in that respect was known to the plaintiff or Mr. Morse, and the counsel for the defendant stated in answer thereto that he did not. Plaintiff’s counsel then objected to the question, and the objection was sustained. It is now claimed that this ruling was erroneous, and that the exception taken thereto requires a new trial. In Dwight v. Badgley (60 Hun, 144) Lawrence, J., says, in reference to the admission of similar testimony : “ While the answer to it would not have conclusively shown what the intention of the plaintiffs was in entering upon the course of dealing with the defendant, referred to by the witness, it involved an answer which the defendant was entitled to have presented to the jury, and which might have aided them in determining what was the real intention of the parties.” DaNIkls, J., says: “ If the question as to the defendant’s intention had been answered, it might have been followed by further evidence indicating the intention of the plaintiffs to have been the same; but, without an answer to this question, it would be useless to offer to make such further proof.” Van Brunt, P. J., dissenting, claimed that the defendant was not injured by the exclusion of the evidence, for the reason that there was no proof showing that the plaintiff had & similar intention. It thus distinctly appears, not only from the concurring opinion of Dahiels, J., but by tho dissenting opinion of Van Brunt, P. J., that in order to render the evidence of any value, it must bo shown that the intention sought to be shown was known to the plaintiff. And, in the case of Kenyon v. Luther (19 N. Y. St. Repr. 32) MartiN, J., in delivering the opinion of the court, says: “ While in the absence of evidence to the contrary, an illegal intent will not be presumed, but an opposite presumption will arise, * * * yet we think the defendants were entitled to prove that their intention was simply to pay differences, and not purchase wheat. * * * This might not have been sufficient to have sustained their defense, * * * but it was a step in that direction which they should have been permitted to take.” Here we have a concession that the evidence would not have been sufficient to establish the defense. In the case under review, as we have seen, the defendant’s counsel, in respect to the evidence offered, says that he did not expect to prove that defendant’s intention was known to the plaintiff, thus shutting the door to that class of evidence. The evidence, if it had been received, would have constituted but a step in the direction of the defense alleged, and would have been insufficient to establish it; and, inasmuch as he had no intention or expectation of showing that the plaintiff had knowledge of such intent, it became worthless testimony, for one party cannot evade a contract or establish its invalidity by maintaining a secret intention to evade it unknown to the person with whom he is contracting.

The judgment appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concurred; Bradley, J., not sitting.

Judgment appealed from affirmed.


text:
    Jacob Cram, Respondent, v. Gas Engine and Power Company, Appellant.

      Erroneous measure of damages — when it cannot he reviewed on appeal — a manufacturer's implied warranty —• charge to the jury.

    A claim upon appeal that a wrong measure oí damages was adopted by a trial judge in his charge cannot be sustained where, upon the trial of the action, no exception was taken to the charge in that respect.
    Upon the sale of an article by the manufacturer thereof, a warranty is implied that the article sold was properly and skillfully manufactured, that it was made of good material and is free from latent defects growing out of the manufacture. But such warranty does not extend to latent defects in the material used by him of which he had no knowledge.
    Where a manufacturer contracts to supply an article which he manufactures, which is to be applied to a particular purpose, and where the buyer has no knowledge of the article, but necessarily trusts to the judgment and skill of the manufacturer, there is an implied warranty that it shall be reasonably fit for the purpose to which it is to be applied.
    Upon the trial of an action brought to recover damages upon an alleged breach of warranty, the question as to whether the defendant did or did not warrant a naphtha launch, manufactured by him for the plaintiff, was controverted, and became a sharply contested question of fact, which was properly and fairly submitted to the jury. At the conclusion of the charge the plaintiff’s counsel requested the court to charge “that if the boat was to be made by the vendors and was bargained for, for a particular purpose or use, and this was the understanding of the parties at the time, there arises an implied warranty that it shall be suitable for such purpose or use.” Such request was charged, and the court stated, in addition, '' the law implies that it will be reasonably safe for the purpose for which it 'is designed.”

      Held, that such charge that the'boat should be reasonably safe for the purpose for which it was designed was erroneous and required the reversal of a judgment in favor of the plaintiff.
    Appeal by tbe defendant, Gas Engine and Power Company, from a judgment of tbe Supreme Court, entered in the office of tbe clerk of tbe county of Seneca on the 19th day of December, 1892, upon tbe verdict of a jury for $1,400, after a trial at tbe Seneca County Circuit, and also from an order entered in said clerk’s office on tbe 11th day of October, 1892, denying tbe defendant’s motion to set aside tbe verdict and for a new trial made upon tbe inmutes.

      8. D. Hallidcvy, for tbe appellant.

      Devoid M. Dean, for tbe respondent.
   Haight, J.:

This action was brought to recover damages upon a breach of warranty. It appears that in the fall of 1890 the plaintiff entered into an agreement with the defendant to construct for him a naphtha launch with a cabin in the central part thereof, according to plans and specifications agreed upon, for the sum of $7,000, and have the same in readiness to deliver to the plaintiff in May, 1891. It further appears that the launch was constructed and delivered to him at the time agreed upon, and that the plaintiff paid therefor $1,500 in cash, and by giving his promissory notes for the balance. lie then proceeded with the launch to Sheldrake, on Cayuga lake, by way of the Hudson river and the Erie canal. The day after he arrived at Sheldrake he gave directions to his men to take the naphtha out of the tank, which they proceeded to do by means of a pump, whilst the launch was at anchor in the lake. After pumping out all of the naphtha that they could, they took a large sponge, tied it to the end of a stick, and with it soaked up and cleaned out the naphtha still remaining in the tank. The launch was then hauled into shore, alongside of a dock, where three barrels of new naphtha were emptied into the tank. A new propeller wheel was put on, and the bilge water in the bottom of the launch pumped out as fully as it could be with the pump, and the rest was cleaned out by means of the sponge which was used in cleaning out the tank. In the early evening of that day the plaintiff gave directions to his men to get the launch in readiness for a trip to Ithaca. Thereupon, his engineer ntarted the engine, and another of his employees entered the cabin and lighted the lamps. In a few minutes thereafter an explosion occurred in the cabin, blowing it to pieces and setting the boat on fire. It partially burned, and sank in the water. Subsequently, the hull of the launch was drawn out upon shore and inspected. The naphtha tank, pipes and engine were found to be in perfect repair except as damaged by the fire. 1

Hpon the trial the court charged the jury that in case they found for the plaintiff, their verdict should be for the purchase price paid, less the value of the remains of the launch after the explosion and fire. The jury rendered a verdict in favor of the plaintiff for $1,400, being the amount of cash paid by him, less $100, the value of the materials that remained after the explosion. The appellant now contends that a wrong measure of damages was adopted. But we think that a complete answer to this contention is, that no exception was taken to the charge of the court upon this subject.

It is also claimed that the verdict is against the weight of evidence. The theory of the plaintiff, as we understand it, is that the defendant had warranted the use of naphtha in the launch to be safe. It is further claimed that in launches having cabins it is dangerous; that there is necessarily some escape of the gas generated from the fluid; that it is heavier than the air, and would consequently settle to the bottom, and that in an inclosed cabin, where the air did not circulate, it would accumulate, and that when mixed with the air so as to form one part of gas with twenty-flve parts of air it becomes highly .explosive ; that gas had so accumulated in the cabin on this occasion, and that when the servant of the plaintiff entered and lighted the lamps he stirred the gas up with his feet, and it became ignited by the lamps, causing the explosion. On the part of the defendant it was claimed that the engine was placed in the stern of the launch, which was partitioned off by a bulkhead; that the space between the bulkhead and the stern was lined with copper; that the cabin only extended to the bulkhead, and that consequently the gas settling in the bottom could not pass into the cabin; that the plaintiff or his servants were guilty of negligence in pumping the old naphtha from ■the tank; that they had permitted it to run upon the deck of the boat, and that a part thereof had in some manner found its way into .the bilge under the cabin, and that in cleaning out the bilge they had improperly used the sponge with which they cleaned out the tank; that the gas that had accumulated in the cabin had generated from naphtha carelessly permitted to get into the bottom of the launch; that the plaintiff’s servant when he entered the cabin discovered the presence of gas by smelling it, and was guilty of negligence in thereafter proceeding to light the lamps. These respective theories were submitted to the jury, and, as we have seen, a verdict was found for the plaintiff. Whether the theory advanced by the defendant is the more rational and probable we do not deem it advisable now to consider, for under the view taken by us this review must be determined upon other grounds.

As we have shown, this action was based upon a breach of warranty. It is contended on behalf of the plaintiff that at the time he entered into the contract with the defendant to construct the launch he had first contemplated contracting for a steam yacht, but' that upon the representations of the defendant’s president that the naphtha launches were perfectly safe for pleasure yachts, and that they could be safely operated by an inexperienced man with reasonable intelligence, after proper instructions, he concluded to contract for a naphtha launch instead. The question as to whether there was or was not a warranty was controverted upon'the trial and became a sharply contested question of fact. This question was properly and very fairly submitted to the jury, but at the conclusion of the charge, the plaintiffs counsel requested the court to charge that if the boat was to be made by the vendors, and was bargained for, for a particular purpose or use, and this was the understanding of the parties at the time, there arises an implied warranty that it shall be suitable for such purpose or use.” This request was not only charged, but the court went a step further, and stated that the law implies that it will be reasonably safe for the purpose for which it is designed;” and exception was taken by the defendant to this charge. There was no question as to the use for which the launch was designed. The plaintiff was a gentleman of wealth and leisure having a summer residence upon the shores of Cayuga lake. He desired the launch for a pleasure yacht for the use of himself, family and guests upon that lake, so that the question raised by the exception to the charge is squarely presented for determination. The counsel for the respondent has not given us his views upon this question or cited any cases sustaining his request to charge. We have, however, made quite a careful search of the books, and have examined numerous cases bearing upon the question, but have been unable to find any which we think sustains the charge. There are many varieties of implied warranties growing out of the numerous transactions among men. In certain instances the seller of an article impliedly warrants that he has the title and power to dispose of it. So, also, in certain cases, a merchant is deemed to have warranted the thing sold by him to be merchantable, and, in some instances, fit for the use or the purpose for which it is designed. In the ease under consideration the implied warranty relates to a sale by the manufacturer of the article. We shall, therefore, confine our attention to the cases upon that subject, or those that are akin thereto. It is undoubtedly the rule that in a sale of an article by the manufacturer a warranty is implied that the article sold was properly and skillfully manufactured, that it was made of good material and is free from latent defects growing out of the manufacture. But such warranty does not extend to latent defects in the material used by him of which he had no knowledge. Among the leading cases upon this question are those of Hoe v. Sanborn (21 N. Y. 552); Randall v. Newson (2 Q. B. Div. 102).

It may also be stated as a rule that where a manufacturer contracts to supply an article which he manufactures which is to be' applied to a particular purpose, and where the buyer has no knowledge of the article, but necessarily trusts to the judgment and skill of the manufacturer, there is an implied warranty that it shall be reasonably fit for the purpose to which it is to be applied. This is the extent to which the authorities go. Among the authorities bearing upon this question are: Jones v. Just (L. R. [3 Q. B.] 196); Laing v. Fidgeon (4 Camp. 169); Gammell v. Gunby (52 Ga. 504); Rice v. Forsyth (41 Md. 389); Brown v. Sayles (27 Vt. 227); Dutton v. Gerrish (9 Cush. 89); Shepherd v. Pybus (3 Man. & Gr. 867); Robinson Machine Works v. Chandler (56 Ind. 575); Dounce v. Dow (64 N. Y. 411); Loop v. Litchfield (42 id. 351); Bragg v. Morrill (49 Vt. 45; 24 Am. Rep. 102; see reporter’s note, page 104, and cases there cited); Benj. on Sales, § 661, and note 16 on page 644.

On referring to the request to charge, it will readily be seen that it does not embrace the essential elements of the latter rule. The charge is limited to cases in which the article bargained for was for a particular purpose or use, and does not embrace the want of knowledge of the character and fitness of the article by the buyer, or that he trusted to the judgment and skill of the maker as to its fitness. If, therefore, the plaintiff knew all about naphtha and its use in launches, he could not be deemed to have relied upon the judgment of the defendant’s president, and there consequently could not have been an implied warranty that its use was safe. The charge as made does not incorporate the question of the knowledge of the plaintiff or leave that for the determination of the jury.

Is the charge, as made, within the first rule ? As we have seen, the manufacturer is required to properly and skillfully make and use good materials, and be is liable for latent defects growing out of the manufacture. Such is his implied warranty. Applying this rule to the launch in question, the defendant was required to construct the boat and the machinery therein properly and skillfully, of good material. It must be free from defects growing out of its manufacture. It is not questioned but that all this was done. No complaint has been made in reference to the structure of the boat, of the engine, tank or other machinery therein. Even after the explosion, when the hull was drawn upon the shore 'and examined, the machinery was found to be in good order except in so far as it was damaged by the fire. As we have seen, the plaintiff’s claim is that the launch was dangerous by reason of having a cabin into which the gas of the naphtha might escape and' become dangerous. But the plaintiff had ordered the cabin constructed. It was built in accordance with his plans and specifications. If the defendant or its officers had known that a cabin in such a launch was dangerous, it might have been their duty to call his attention to the fact. Whether the plaintiff or the defendant’s officers or agents knew of such danger does not appear. These questions were not incorporated in the charge or submitted to the jury. Under the charge, as made, the jury was required to find that there was an implied warranty that the launch was reasonably safe if it was made for a particular use and that use was understood by the maker. There being no question in reference to the use, or that it was understood by the maker, the charge, in effect, required the jury to find that there was a warranty that the launch with a cabin in it was safe. This, we think, was going far beyond the rule. It not only requires the maker to properly and skillfully construct, of good material, free from latent defects, but it requires him to warrant that naphtha may be safely used therein with a cabin on the boat, and this, without regard to the character or quality of the naphtha used, and without previous knowledge that a cabin rendered it unsafe. In the defendant’s book of instruction furnished to the plaintiff, and by him put in evidence, we find in bold type at the bottom of each page, the words: “Use U3 cleg, deodorized naphtha,” and yet we are not informed either by the charge or the evidence as. to the character and quality of the naphtha supplied to the launch before its explosion. It is conceded that some of the naphtha will necessarily escape at the engine ; that no packing boxes have yet been discovered that will absolutely prevent the escape of steam or naphtha in small quantities. It is also conceded that naphtha, when brought in contact with the air, will quickly evaporate, that a gas will generate therefrom, and when mixed with air in the proportions already stated, it becomes dangerous. Its use must, therefore, necessarily be attended with some danger. The defendant was not the manufacturer or the seller of the naphtha. It only manufactured the launch. Its implied warranty extends to the launch, not to the naphtha. The damage complained of arose from the naphtha, or the gas that had been generated therefrom, which had escaped into the cabin, and not through any defect disclosed in the launch, its machinery, or its construction.

In the case of Losee v. Clute (51 N. Y. 494) it was held that the. manufacturer and vendor of a steam boiler is only liable to the purchaser for defective materials or for want of care and skill in its construction. "We think an engine and boiler may fairly be taken for the purpose of illustration. A steam engine and boiler is usually operated by gas or coal used as a fuel, more usually coal. The manufacturer is liable to the purchaser by reason of his implied warranty for defective materials used in the manufacture, and for want of care and skill in its constmction. Its use is attended with some danger. The sparks that arise from the burning fire if brought in contact with inflammable materials may ignite the same and cause damage. The steam that necessarily escapes may, also, in some instances produce damage; but can it be claimed that the maker’s implied warranty extends to injuries resulting from the escape of sparks or steam ? The use of kerosene in lamps for the purposes of light is attended with some danger, especially if the oil is not properly refined, or is not of a standard quality; and yet it will hardly be claimed that a manufacturer of the lamps would be liable for the damages resulting from its use, where the lamps were properly constructed and of good material.

For the reasons stated, the judgment and order must be reversed and a new trial granted, with costs to abide the event.

Dwight, P. J., and Lewis, J., concurred.

Judgment and order appealed from reversed and a new trial granted, costs to abide the event.


text:
    Sarah Knisley, Plaintiff, v. Pascal P. Pratt and Others, Defendants.

      Damages for personal injuries — chapter 898 of 1890 — failure of an employer to perform a duty imposed thereby — absence of belt shifters to machinery — risk assumed by an employee.

    Chapter 398 of the Laws of 1890 gives additional safeguards to employees in factories, and casts upon the employer the duty of guarding machinery that is dangerous, and the failure on the part of an owner of a factory to perform a duty imposed thereby, where,'as a consequence, an injury results to another, is evidence of his neglect.
    By the provisions of chapter 398 of the Laws of 1890, in reference to the supplying of belt shifters to machinery by the owner of a manufacturing establishment, the necessity of supplying the same is left to the discretion of the Factory Inspector, but the provisions thereof in reference to guarding machinery are mandatory. In the absence of a direction by the Factory Inspector to furnish belt shifters, the failure to supply the same cannot be said to be a violation of the statute, although the absence thereof is important as bearing upon the fact that the cleaning of certain machines was required to be done whilst they were in motion.
    While a manufacturer may carry on his business with an old machine not provided with all the safeguards attached to new machines, unless otherwise required by statute, he is ordinarily chargeable with knowledge of the means necessary to be employed in the performance of his work, and he is required to exercise proper care and precaution in guarding against the risk incident to the employment. He must furnish his employees a safe place to work, sound and suitable tools, implements, appliances and machinery, and must keep the same in repair.
    A servant who enters the employ of a master assumes the risk incident to such employment, where the dangerous structures or implements a-re open and visible and known to him, but in case- the employer owes such employee a duty which is not discharged, and is guilty of negligence in not performing such duty, if the injury is the result of such neglect of duty, the risk is not one which is assumed by the servant.
    MotioN by the plaintiff, Sarah Knisley, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, after a judgment of nonsuit, rendered at the Erie County Circuit on the 20th day of April, 1893.

      TJ. O. Day, for the plaintiff.

      John, G. Milburn, for the defendants.
   Haight, J.:

This action was brought to recover damages for personal injuries sustained by the plaintiff whilst in the employ of the defendants in their factory in the city of Buffalo. She was engaged in operating what is known as a punching machine. The machine was placed upon a bench thirty-two inches from the floor. It was twenty-two inches wide and four feet high. The machine was of iron and was securely bolted to the bench. There were iron posts on either side extending to the top. Near the top was a shaft passing through the posts, on one end of which was a drum and belt connecting with shafting in the upper portion of the building. On the other end of the shaft there was a small cog wheel about seven inches in diameter running close to the frame, outside of which was a large fly wheel. Underneath this Shaft was another shaft having a cog wheel about two feet in diameter, which was operated from the cog wheel on the upper shaft. • In the center of the lower shaft was an iron rod or arm, to which was attached the punch, arranged on an eccentric, so that the revolution of the shaft caused the punch to rise and lower. There were five of these machines standing upon the bench, similarly constructed. They had no appliance for shifting the belt from the drum so as to stop the machine, or covers for the cog wheels. Opposite each wheel, and about an inch therefrom, was a place for oiling the shafts at their bearings upon the frame.

The plaintiff entered the employ of the defendants in May, 1890, and continued in their employ until the close of September 24,1891. On that day she was operating the machine described. A few minutes before quitting time the whistle was. sounded, and the girls operating the machines were then required to take a handful of waste provided by the superintendent and clean the machines, wiping the oil therefrom whilst the same were in motion. The floor of the building was uneven. It was filled with machinery in operation, making a great noise, so that the operators sitting at the same table could not hear one another talk. The plaintiff was attempting to wipe the oil from the uppér bearings, near the cog wheels. To do so she had to stand upon her tip toes, and whilst so engaged the cog wheels caught the waste in her hand, or else her hand slipped upon the oily portion between the wheels, she is unable to say which, and her hand and arm were crushed.

"Were the defendants chargeable with negligence ? The statute provides that: “ It shall be the duty of the owner of any manufacturing establishment or his agents, superintendent or other person in charge of the same, to furnish and supply, or cause to be furnished and supplied therein, in the discretion of the Factory Inspector * * * where machinery is in use, belt shifters or other safe mechanical contrivances, for the purpose of throwing on or off belts or pulleys; and whenever possible, machinery therein shall be provided with loose pulleys; all vats, pans, saws, planers, cogs, gearing and machinery of every description therein shall be properly guarded.” (Laws of 1890, chap. 398, § 12.)

It will be observed that the provision in reference to the supplying of belt shifters is left within the discretion of the Factory Inspector, but that in reference to guarding “ vats,. pans, saws, planers, cogs, gearing and machinery of every description,” the provision is mandatory. "Whilst the provision in reference to guarding the machinery is mandatory, it must doubtless receive a reasonable construction, and the guarding mentioned must have reference to that portion of the machinery which is so located as to be' dangerous. The cog wheels causing the injury were about six feet above the floor, and may not, in consequence thereof, have been considered dangerous in the ordinary operation of the machine, but may become dangerous when the operator undertakes to clean the same. There was no evidence showing that the Factory Inspector had required the defendants to supply belt shifters, so that they cannot be said to have violated the statute in this regard. The absence of belt shifters, however, becomes important as bearing upon the fact that the cleaning of the machines was required to be done whilst they were in motion. If the machines could have been stopped, the cleaning could have been done with absolute safety, but cleaning whilst in motion, with uncovered cog wheels, became extremely hazardous. And it appears that this fact was understood and appreciated by the defendants, for in another room in the factory were three other machines of similar construction, which had belt shifters, one of which had been formerly operated by this plaintiff; and when, she commenced to operate the same she was instructed how to shift the belt, and directed never to attempt to clean the machine until she had shifted the belt and stopped its motion. The statute to wbicli we bave alluded was designed to afford an additional safeguard to employees in factories. It casts upon the employer the duty of guarding machinery that is dangerous. A failure on the part of the owners of factories to perform a duty imposed by the statute, where, as a consequence, an injury results to another, is evidence of negligence. (McRickard v. Flint, 114 N. Y. 222, 226.)

Whilst a master may carry on his business with an old machine not provided with all the safeguards attached to new machines, unless required by the statute, he is ordinarily chargeable with the knowledge of the means necessary to be employed in the performing of his work, and is required to exercise proper care and precaution in guarding against the risks incident to the employment. He must, consequently, furnish his employees a safe place to work, sound and suitable tools, implements, appliances and machinery, and must keep the same in repair. (Benzing v. Steinway, 101 N. Y. 541, 552; McGovern v. The Central Vermont R. R. Co., 123 id. 280.)

Had the defendants fully discharged their duty to the plaintiff in this regard ? Under the evidence, it appears to us that this question could properly be answered only by the jury.

Was the plaintiff guilty of contributory negligence ? As we have seen, she was required to clean the machine whilst it was in motion, a portion of which was within an inch of the revolving cog wheels. In order to reach this place she was compelled to stand upon her tip toes on an uneven floor. There may have been some tremor to the- building, owing to the machinery that was running therein. Whilst standing in this unsteady position her hand slipped, or the waste in her fingers suddenly caught in the cogs, drawing her hand within the wheels. We think this question should also be answered by the jury.

Did she, by her contract of employment, assume these risks ? The trial court was of the opinion that she did, and for this reason ordered a nonsuit. The general rule doubtless is, that a servant who enters the employment of a master assumes the risk incident to such employment, where the dangerous structures or implements are open, visible and known to him. (De Forest v. Jewett, 88 N. Y. 264; Sweeney v. Berlin & Jones Envelope Co., 101 id. 520 ; Hickey v. Taafe, 105 id. 26; Appel v. R. R. Co., 111 id. 550.)

These cases were fully considered and discussed in tbe dissenting opinion in Eldridge v. The Atlas Steamship Co. (134 N. Y. 187, 193), but this rule is founded upon tbe assumption that tbe master lias discharged bis duty to tbe employee, and consequently is not chargeable with negligence. In the JDe Forest case there were ditches in the yard. They were open and visible and known to the employee; but he stepped into one and fell under a passing train. In that case there was no statute requiring the ditches to be covered; consequently the railroad company was not chargeable with omission of duty or negligence. In the Appel case the plaintiff stepped into a frog, caught his foot and was run over by a train. The frog was a necessary, open, visible structure in the yard and was known to him. There was no statute requiring it to be- blocked, and the company owed him no duty in that regard. In the Fldridge case the wheels of the winch were open, visible and known to the plaintiff, who had operated it on previous occasions, but the statute did not require the wheels to be covered. And the same may be said in reference to the Sweeney case. Had the statute required covers in these cases a different question would have been presented. In Benzing v. Steinway (supra) Ruger, Ch. J., in delivering the opinion of the court says: “ It has been repéatedly held that the risks of the service which a servant assumes in entering the employment of a master, are those only which occur after the due performance by the employer of those duties which the law enjoins upon him.” And in McGovern v. The Central Vermont R. R. Co. (supra) the chief judge says : “ It may, we think, be laid down as a general rule that the dangers connected with such a business which are unavoidable after the exercise by the master of proper care and precaution in guarding against them, are risks incident to the employment, and are assumed by those who consent to accept employment under such circumstances; but those dangers which are known and can be mitigated or avoided by the exercise of reasonable care and precaution on the part of those carrying on the business, and injuries from which happen through neglect to exorcise such care, and not incident to the business, and the master is generally liable for damages occurring therefrom.” The trial court appears to have based its decision upon White v. Wittemann Lithographic Co. (131 N. Y. 631). In that case the trial court in its charge said : “ Then again, it is also claimed, or suggested at any rate, that the defendant failed in not guarding this machine in a particular manner described by the same statute to which I have referred. But that point is not available against the defendant under the evidence in this case, because the boy was aware of the absence of the guards, and he must be held to have assumed the risks of working on the machine without a guard.” The judgment was affirmed on review, but we do not understand that the charge was hold to be correct. EaRl, J., in delivering the opinion of the court, says, in reference to it: “It is not always true that the absence of guards about the machinery in such a case, provided the boy knew it, can have no bearing upon the liability of the employer. The boy might unintentionally and without fault on his part come in contact with the machinery, or accidently fall or be thrown against itj and thus the absence of guards which would have protected him, might constitute the negligence which would impose liability upon the employer. But here the boy not only knew that the guards were not there, but, according to his own evidence, they would have been of no service if they had been there, because, having intelligence enough to take care of himself, and to understand and appreciate the machinery and the danger to be apprehended from it, he intentionally went to the place where he was injured and took hold of the lever with his right hand, knowing what the effect would be, and intending to produce that effect, and then carelessly or thoughtlessly thrust his left hand into the wheels. It is impossible to perceive how any ordinary guards would have saved him from the injury.” As we understand the opinion, the charge was held not to be reversible error for the reason that the evidence showed that the guards, had they been there, would not have prevented the accident.

We, consequently, are of the opinion that if it should be found that the defendants owed the plaintiff a duty which was not discharged, and that they were guilty of negligence in not performing it, and the injury was the result of such omission of duty, the risk was not such as was assumed by her.

It follows that the exception to the nonsuit was well taken, and that a new trial should be granted, with costs to abide the event.

Dwight, P. J., Lewis and Bbadley, JJ., concurred.

Plaintiff’s motion for a new trial granted, with costs to abide the event.


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    The People of the State of New York, Respondent, v. Charles F. Underhill, Appellant.

      Forgei'y defined — immaterial whether an alteration was made hefiot'e ' or after the insPi'tment was signed — uttering of the instrument — the prosecution is not confined to one item of evidence thereof.

    The term forgery, as used in the statutes of the State of New York, includes the false making as well as the counterfeiting and alteration of an instrument or writing. (Penal Code, § 620.)
    The crime of forgery in the third degree is complete if an officer of a corporation falsifies a writing belonging or appertaining to the business of the corporation, intending to defraud the corporation, and it is immaterial whether the altera* tion in the instrument was made before or after the signing thereof.
    Upon a trial for forgery, the prosecution is not confined to one item of evidence tending to show the uttering of an instrument, when the charge in the indictment does not specify the evidence upon which the prosecution felies for the purpose of establishing the charge.
    Upon such trial testimony was given in regard to a certain conversation, in respect to which there had been no charge or claim that the conversation constituted the uttering of an instrument. The counsel for the prisoner requested the court to charge that such conversation would not constitute an uttering of the paper, to which the court replied that the jury must take that into consideration with the other facts in the case.

      Held, that although the request to charge was correct as an abstract proposition, yet, inasmuch as there had been no claim made in the case that the conversation constituted an uttering of the instrument, the comment of the court following the request was not such an error as to necessitate the reversal of a judgment of conviction.
    Appeal by the defendant, Charles F. Underbill, from a judgment of tbe Court of Oyer and Terminer held in and for the county of Monroe, and entered in the office of the clerk of the county of Monroe on the 28th day of May, 1892, adjudging the defendant guilty of the crime of forgery in the third degree.

      George Sames, for the appellant.

      Howard II. Widener, Assistant District Attorney, for the respondent.
   Haight, J.:

The defendant was the president of the Flour City Life Association, an insurance corporation having its principal place of business in the city of Rochester. In November, 1890, Philip Wareham, of Brooklyn, Mich., died holding two policies in the association, numbered respectively 5748 and 9629, in which his son, Hamilton Ware-ham, was made the beneficiary, and who, by reason of the policies, became entitled to receive from the association the sum of about $2,000. It appears that after the death of Wareham'was reported, the defendant and one McCargo went to Michigan, called upon Hamilton Wareham, the beneficiary under the policies, and entered into an agreement with him to compromise and settle his claim against the association for the sum of $400, which sum they then paid to him. The compromise agreement so entered into with Wareham was in writing, drawn by the defendant, and is as follows: “Whereas, the undersigned, Hamilton Wareham, of Grand Ledge, Mich., the beneficiary named in certain certificates of insurance numbered 5748 and 9629, issued by the Flour City Life Association and dated the 8th April and 12th August, 1889, upon the life of Philip Wareham, of Brooklyn, for 16 shares in Class B of said association ; and whereas, eight shares -would have matured thereon on approval of the same; and whereas, it is claimed upon the part of said association that by reason of certain omissions and misstatements in the application therefor and contradictions thereof which appears by the proof of loss filed with said association that a legal defense exists against the payment of said policy, or any part thereof, and it is deemed expedient to compromise and adjust the same upon an equitable basis. The undersigned, Hamilton Wareham, hereby, for value received, and in consideration of all the premises, agrees that he will accept the sum of fourteen hundred dollars in compromise of any and all claims and demands whatsover due upon or hereafter to grow due by reason of said certificates. And upon payment of said sum in cash the undersigned does hereby receipt in full for the amounts due on said policy. The said claim is hereby compromised and adjusted accordingly, and the above-named amount is accepted in full accord and satisfaction thereof. Witness the hand and seal of said party this 3rd day of December, 1890.” The above was signed by Hamilton Wareham, with his seal affixed, and acknowledged before one E. O. Kelley. It is claimed that this instrument was forwarded by the defendant to the office of the association in Rochester, accompanied witb a check on the association for $1,400, with a letter to the secretary directing him to take the check ,to the Central Bank and get the cash on the same, and then with the cash to go to some other bank, and get New York drafts to the amount of $1,400, payable to the defendant’s order, and to forward them to him at Iona, Mich.; that the secretary did as directed ; that the drafts to the amount of $1,400 were received by the defendant, indorsed by him, and that he procured the money on the same. It is further claimed that after the defendant returned to Rochester he presided at a meeting of the directors of the association on the l'Tth day of January, 1891, and that at that meeting the compromise contract settling the Ware-ham claim was presented to the board of directors, was approved and ordered paid. The evidence tends to show that the compromise agreement was drawn in a room occupied by the defendant in Michigan; that Wareham was unable to read it because of impaired sight; that the defendant read it over to him before he signed it, and that in reading it he read the sum to be paid in the compromise as $400, instead of $1,400; that thereupon Wareham signed the same, and was paid $400.

The first count in the indictment was evidently drawn under section 511 of the Penal Code, and charges forgery in the second degree in this, that the defendant feloniously did then and there falsely make, forge, alter and counterfeit the said written instrument with intent then and there to injure and defraud the Flour City Life Association.

The second count in the indictment charges the defendant with the same crime in uttering the instrument.

The third count in the indictment was evidently drawn pursuant to the provisions of sections 514 and 515 of the Penal Code. It charges the defendant with having falsely altered the instrument in question, being a writing belonging to the association, then and there being a corporation, by writing “teen” aft®r “four” therein, so as to raise the amount from $400 to $1,400. .

The fourth count charges the defendant with the same crime in having uttered the instrument.

In the third count of the indictment the formal conditions are for some reason omitted. It is not charged that the defendant was an officer or an employee of the corporation, or that he defrauded any person by bis act. It is quite possible that this count is defective, but we discover no such defects with reference to the fourth count, the one under which we understand the defendant to have been convicted.

The evidence is of such a character as to make the guilt or innocence of the defendant a question for the jury. We shall, therefore, discuss only the legal propositions presented.

The court, in its charge to the jury, at first submitted the question as to whether the instrument alleged to have been altered was forged in the city of Rochester, with the instruction that if the alteration was made in the State of Michigan there could not be a conviction under the first and third counts in the indictment; but afterwards, at the request of the defendant’s counsel, the judge charged the jury that if they found the defendant guilty it must be of uttering the instrument, either in the second or third degree, as charged in the second or fourth counts of the indictment. With reference to the charge in the second degree, he instructed the jury that they could not convict unless they found as a fact that the alteration was made after the instrument was signed by Wareham; but with reference to the charge in the third degree, he instructed the jury to the effect that it was immaterial whether the letters teen ” were written in before or after the signing by Wareham. To this charge an exception was taken by the defendant. The question thus presented is one of interest, and does not appear to have been considered in any reported case to which our attention has been called. At common law the question as to whether it was forgery to procure a genuine signature to an instrument by means of false representations as to its contents gave rise to conflicting decisions. The text writers upon criminal law from Coke to Barbour were of the opinion that the fabrication and false making of a written instrument, as well as the fraudulent insertion, alteration or erasure in a material part, whereby a new operation was given to it, would amount to forgery, even though it were afterwards executed by a person igiiorant of the deceit. (3 Inst. 170; 1 Hawkins, chap. 21, § 2; 2 East’s P. C. chap. 19, § 2; 2 Russell on Crimes, chap. 32, § 1, p. 319 ; 2 Deacon’s Criminal Law, 1402; 1 Barbour’s Criminal Law, 114.) But in Regina v. Collins (2 M. & R. 461) Baron Rolfe refused to follow this rule,’and to the same effect is Regina v. Chadwick (Id. 545). These cases have been followed by the more modern writers. (2 Wharf. on Cr. Law, § 1435 ; 1 Bishop’s New Cr. Law, § 584; 2 id. § 156.)

In Hill v. State (1 Yerg. 76 ; 24 Am. Dec. 441) it was held that the writing of a note for a person, inserting a larger sum than the real amount due, and falsely and fraudulently reading it oyer to him as for the latter amount, with a view to defraud him, is not forgery. (See, also, Comm. v. Sankey, 22 Penn. St. 390; 60 Am. Dec. 91; State v. Flanders, 38 N. H. 324, 336.)

But all is not harmony under the modern cases. (State v. Shurtliff, 18 Me. 368; 3 Rice on Ev. § 489. See note to Arnold v. Cost, 22 Am. Dec. 301, 311.)

' It will be observed that none of the authorities referred to attempt a construction of our recent statute defining forgery in its various degrees. The term forgery,” as used in our statute now, includes false making as well as counterfeiting and alteration. (Penal Code, § 520.)

“ A person is guilty of forgery in the second degree who, with intent to defraud, forges * * * an instrument, or writing, being or purporting to be the act of another,” etc. (Penal Code, § 511.) It may be that an instrument cannot purport to be the act of another before his name is placed thereon. We shall, therefore, without deciding the question, assume that under our statute defining forgery in the second degree, the alteration must be made after the instrument is executed. The trial court so charged the jury. But is this the rule in reference to the charge in the third degree ? The Code provides that, a person who either (1) being an officer, or in the employment of a corporation, association, partnership or individuals, falsifies or unlawfully and corruptly alters, erases, obliterates or destroys any accounts, books of accounts, records or other writing belonging to or appertaining to the business of the corporation, association or partnership or individuals, * * * is guilty of forgery in the third degree.” (Penal Code, § 514.)

Under this statute the crime is complete if an officer of a corporation falsifies a writing belonging to or appertaining to the business of the corporation, intending to defraud the same. Such is the charge made against the defendant. The procuring of the signature of Wareham to the compromise agreement by falsely representing its contents to him, standing alone, may not be forgery. He was not defrauded. He agreed to take $400, and was paid $400. The fact that the paper bore his genuine signature might make it a true paper as to him, for he, by the act of signing, asserted the truthfulness of its contents ; but as to the association it is a false paper, for it represents that Wareham was paid $1,400, when, in fact, he was paid but $400, and his signature thereto does not change the fact. Suppose the. defendant and Wareham had collusively arranged to defraud the association, and for the purpose of carrying out such arrangement the defendant had written the instrument, inserting the words . “ fourteen hundred dollars,” and Wareham, knowing of such insertion, had signed the same. Can there be any doubt but that the instrument would have been a false one within the meaning of the statute ? And is the defendant’s position in reference thereto different by reason of his having procured Wareham’s name through misrepresentation and deceit? We think not. To our minds the crime consists in the making of the false instrument belonging to or appertaining to the business of the corporation by an officer thereof. The writing is one act, and the procuring of Wareham’s signature is another; The two acts together constitute the making. If we are correct in this view, it is immaterial under this statute whether the “teen” was written before or after the signature of Wareham.

It is contended that the court erred in submitting to the jury the various alleged acts of the defendant in connection with the paper after its execution, as bearing upon the question of uttering. It was claimed that the defendant forwarded the instrument to the office of the association, there to be placed upon file as a voucher for money expended by him as an officer, etc. The trial court submitted the evidence bearing upon this question to the jury for them to determine whether it was not an uttering of the instrument. The attention of the jury was also called to the meeting of the directors on the seventeenth of January, at which the defendant presided as president, when the claim was audited. It was submitted also as to whether this was an uttering. We have discovered no errors in reference to the ruling upon these questions. We do not understand that the prosecution' xvas confined to one item of evidence tending to show an uttering of the instrument. The charge in the indictment does not specify tlie evidence upon which the prosecution relied for the purpose of establishing the charge. The placing, or causing of the instrument to be placed upon file in the company’s office for the purpose of having it subsequently acted upon when the directors should meet is one step; the action of the board of directors in approving of the compromise and ordering it paid is another step. Each is consistent with and dependent upon the other, and the two together complete the transaction. "Whilst either, standing alone, may be sufficient to constitute the crime of uttering, the People certainly were entitled to give in evidence the full transaction and have it considered by the jury.

The defendant’s counsel requested the court to charge that the conversation with Colvin would not constitute an uttering of the paper. To this the court replied that the jury must take that into consideration with- the other facts in the case. There had been no charge or claim that the conversation with Colvin constituted an uttering. The defendant’s counsel had made a claim to the court to the effect that there was no evidence that Underhill either spoke about, referred to, or had any relations with the paper, from the time that it came from Michigan until he delivered it to the district attorney, and asked the court to charge that there was no evidence from which they could find that Underhill after his return made any representation or did any act with reference to the paper in question. In answer to this, the court called his attention to the testimony of Colvin. Colvin had testified to a conversation with Underhill in which he stated that the claim had been compromised for $400; that there had been crooked work in reference to it; that he did the writing, and that the crooked work had been charged to him before the grand jury; that at the time he drew the papers McCargo stepped behind him and whispered to him to draw the paper for $1,400 instead of $400, and that McCargo made as much out of the settlement as he 'had, etc. It was claimed that this amounted to an admission of his guilt, and if an admission, it showed that there had been an uttering; so, that whilst the conversation did not constitute an uttering, it tended to show that there had been an uttering. The request to charge, as an abstract proposition, was correct, but inasmuch as there had been no such claim made in the case, we think that the comment of the court following it was not such an error as to necessitate a new trial.

The judgment, orders and conviction should be affirmed.

Dwight, P. Ji, and Lewis, J., concurred.

Judgment, orders and conviction appealed from, affirmed.


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    Abram H. Garson and Another, Plaintiffs, v. Philip Brumberg, Defendant.

      Wa/rrant of attachment — allegation in the alternative — when proper.

    A warrant of attachment must briefly recite the grounds ux>on. which it was granted, and it is defective if it follows the language of the statute and recites in the alternative that the debtor “has removed or is about to remove property from the State with intent to defraud his or its creditors, or has assigned, dis-Xiosed of or secreted, or is about to assign, dispose of or secrete property, with the like intent.”
    Where it is doubtful whether a debtor has departed from the State, or has concealed himself therein, with the intent to defraud his creditors or avoid service, an attachment will be granted if the creditor charge in the disjunctive that he has done one or the other.
    Appeal by Emanuel Y. Abrams and others, judgment creditors of tbe defendant, Philip Brumberg, from an order of the Supreme Court, made at the Monroe County Special Term and entered in the office of the clerk of the county of Monroe on the 31st day of August, 1893, denying such judgment creditors’ application to vacate a warrant of attachment against the property of the defendant.

      Jfdvjard I. Jellmelc, for E. Y. Abrams and others, judgment creditors, appellants.

      Wile c& Goff, for plaintiffs, respondents.
   Haight, J.:

The motion to vacate the attachment was based on the papers upon which it is granted. The grounds recited in the attachment are that the said defendant did, on or about the 20th July, 1893, being a natural person and. resident of this State, depart from this State with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent.”

Whilst the affidavits upon which the attachment was granted are properly subject to some criticism, still we are of the opinion that the facts stated are sufficient to authorize the issuance of the warrant.

A more serious question arises as to the grounds stated in the attachment, the recitals being in the alternative. The warrant of attachment must now briefly recite the grounds upon which it was granted. (Code Civ. Proc. § 641.)

It may be granted where “the defendant is either a foreign corporation or not a resident of the State; or, if he is a natural person and a resident of the State, that he has departed therefrom, with intent to defraud his creditors or to avoid the service of a summons, or keeps himself concealed therein with the like intent ;• or, if the defendant is a natural person or a domestic corporation, that he or it has removed, or is about to remove, property from the State with intent to defraud his or its creditors; or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete property with the like intent.” (Code Civ. Proc. § 636, subd. 2.)

In Dinturff v. Tuthill (43 N. Y. St. Repr. 704; S. C., 62 Him, 591) it was held that a warrant of attachment which follows the language of the statute, and recites the facts in the alternative, is defective. In that case the recital was to the effect that the defendant has removed, or is about to remove the property of the said firm from the State, with intent to defraud the creditors of the said firm, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, the property of the said firm with intent to defraud the creditors of said firm.”

And to the same effect is Macdonald v. Kieferdorf (46 N. Y. St. Repr. 176); Johnson v. Buckel (48 id. 924); First National Bank, etc., v. Bushwick Chemical Works (25 id. 830).

But these cases are all under the other clause of the section, and are not necessarily controlling upon the question under consideration. They charge that the defendant has removed, or is about to remove, property from the State with the intent to defraud his creditors, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, property with the like intent. The removal of property with the intent to defraud creditors is one ground, and the assignment of it with like intent is another; but they are based upon different facts, and both cannot well be included in or established by the same facts, whilst, under the other provision of the Code, the intent to defraud creditors, or to avoid the service of a summons, may be established from the same facts. "Whether he has departed from the State, or keeps himself concealed therein, is immaterial where the purpose and intent is the same. It appears to us that this subdivision of the section may properly receive a construction which allows the grounds to be stated in the attachment in the alternative. Otherwise, the clause can be of but little benefit, for where the debtor has secreted himself, either by departing from the State or by hiding himself within the State, the creditor, if compelled to establish which, will, in most cases, be powerless to do so, fox; reasons which are obvious. The distinction to which we have alluded is cleary pointed out by Drake on Attachments. At section 101 he calls attention to a rale, to the effect that as many grounds may be alleged for the attachment as are within the teims of the law and may be deemed expedient, but in doing so the several grounds should be stated cumulatively and not in the disjunctive; and then, following, in section 102, he says: Where the disjunctive or is used, not to coixnect two distinct facts of different natures, but to characterize and include two or more phases of the same fact attended with the same results, the construction just mentioned would be inapplicable. For instance, where the statute authorized an attachment when the defendant absconds or secretes himself, it was considered that, fi’om the difficulty of determining which was the fact, the language comprised but one ground, and the disjunctive or did not render the affidavit uncertain,” refering to Johnson v. Hale (3 Stewart & Portel, 331.) Continuing, he says: “ It is,” said the court, “ often difficult, if not impracticable, for the creditor to ascertain whether his debtor absconds or secretes himself. He has to rely frequently upon such information as his family or friends will give him, which cannot always be confided in; hence, to allow sufficient latitude to the creditor in making his affidavit, and to prevent failures from having mistaken the cause why the debtor is liable to the remedy, the law has very properly provided for its issuance in the alternative,” referring to Connon v. Logan (5 Porter, 77). Kneeland on Attachment (§ 215) says: Although there is a distinction in words between a concealment and an absconding, there is no difference in fact. The terms are not strictly synonymous, but the one is included in the other. Absconding is not always a concealment, but concealment, for the purpose of defrauding creditors or avoiding service of summons, is always an absconding. "Where both of the terms are used, either separately or conjunctively, the one refers to an absconding or concealment within, and the other without, the State; but the line of demarkation is not drawn so strictly as to affect the jurisdiction of the court. It is not a fatal defect in an affidavit, therefore, to use the terms absconds or conceals himself \ as but one real ground of attachment is set forth, the terms being for that purpose equivalent. And where it is doubtful whether a debtor has departed from the State or conceals himself therein- with the intent to defraud his creditors or avoid service, an attachment will be granted if the creditor charge in the disjunctive that he has done one or the other.

In Van Alstyne v. Erwine (11 N. Y. 331, 339) Denio, J., in considering the grounds upon which an attachment may issue, says: “ It is objected that the application is in the disjunctive, that the debtor had departed from the State or was concealed within it, with intent to defraud his creditors, and it is said that the creditor should have stated his case under one or the other aspect, and not in the alternative. The remedy is precisely the same whether the debtor had absconded or was concealed. No difference whatever existing in the proceedings in the two cases. A case may be so circumstanced that although it may be conclusively shown that the debtor has left his place of residence in order to defraud his creditors by depriving them of their remedies, yet it may be impossible even to conjecture whether h© has continued his flight beyond the boundaries of the State or has resorted to some place of concealment in it. The affidavits disclose such a case in the present instance. If the objection is well founded there could be no proceeding under this statute in a case thus circumstanced. The debtor would have only so to conduct his evasion as to make it uncertain which course he had adopted and he would avoid this remedy. I do not think the statute requires such a construction.” (See, also, 2 Wait’s Pr. 137.)

It is claimed that these cases have no application, for the reason that the Code now requires the grounds to be stated in the attachment. Formerly, it is true, the grounds were not required to be so stated, but they were required to be shown from the facts set forth in the affidavits upon which the attachment' was issued; and if the facts in the affidavit, stated in the alternative, were sufficient under the subdivision of the Code alluded to, we fail to see why they may not be so stated in the attachment.

We think the order appealed from should be affirmed, with ten. dollars costs and disbursements.

Dwight, P. J., Lewis and Bbadley, JJ., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Charles W. Van Vleet, Plaintiff, v. W. Martin Jones, Defendant.

      Stockholder's liability — ■ overvaluation of property for which stock of a corporation, v. is issued in payment — false certificate — evidence — chapter 40 of the Lavis of 1848.
    In an action brought to recover the debt of a corporation from a stockholder thereof under the provisions of sections 10,11 and 15 of chapter 40 of the Laws of 1848, and the acts amendatory thereof, the acts of the original incorporators of the. corporation must be fairly considered, and the statute under which they acted be given a reasonable interpretation.
    Upon the trial of such an action evidence was given from which it appeared that-the stock of the corporation was nearly worthless, and had been purchased for five cents on the dollar. The court refused to allow the plaintiff to prove a statement of the defendant, made at the time of such purchase, that such stock was absolutely worthless.

      Held, that the error committed was not of sufficient importance to require a new trial.
    It is natural that the owners of property taken by a corporation of which they are stockholders, and in payment for which stock of the corporation is to be issued, should desire to realize for their property all that it is worth, and the-statute is not violated in respect to the issuing of stock in payment for property, unless such persons in bad faith put a fictitious value upon their property for the purpose of evading the statute and defrauding others.
    MotioN by tbe plaintiff, Charles W. Van Vleet, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, after a judgment of nonsuit rendered at the Monroe County Circuit on the 22d day of February, 1893.

      Arthur JE. Sutherland, for the plaintiff.

      W. Martin Jones, defendant, in person.
   Haight, J.:

This action was brought by the plaintiff as a creditor of the Rochester Lithographing and Printing Company, a corporation organized under chapter 40 of the Laws of 1848 and the several acts amenda-tory thereof, to recover the amount of his debt from the defendant as one of the officers and directors of such corporation, by reason of an alleged false certificate made by him, as such n officer, under the statute. The certificate is as follows:

“ We, the undersigned stockholders and directors of the Rochester Lithographing & Printing Company, do hereby certify that the capital stock of the said The Rochester Lithographing & Printing Company is and was fixed at $50,000, and that the same is now fully paid up; that the last and final payment of the capital stock of said company, being the sum of $1,800.00 due from one of the members of said company, was paid into the treasury of said company on the First day of April, 1889, and that there now remains due and owing to said company upon said capital stock from the stockholders thereof no sum whatever.
“Dated, Roohester, N. Y., April 27th, 1889.”

The certificate is signed by the defendant and four other directors of the corporation, and an affidavit is attached in which they swear that the certificate is true. The defendant was the president of the corporation. The statute referred to, among other things, provides:

“ Section 10. All the stockholders of every company incorporated under this act shall he severally, individually liable to the creditors of the company in which they are stockholders to an amount equal to the amount of stock held by them respectively for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company shall have been paid in, and a certificate thereof shall have been- made and recorded as prescribed in the following section. And the capital stock so fixed and limited shall be paid in, one-lialf thereof within one year and the other half thereof within two years from the incorporation of said company, or such corporation shall be dissolved.”
“ Section 11. The president and a majority of the trustees, within thirty days after the payment of the last installment of the capital stock so fixed and limited by the company, shall make a certificate stating the amount of the capital so fixed and paid in, which certificate shall be signed and sworn to by the president and a majoi’ity of the trustees, and they shall, within said thirty days, record - the same in the office of the county clerk of the county wherein the business of the said company .is carried on.” •
“ Section 15. If any certificate or report made, or public notice given by the officers of any such company in pursuance of the provisions of this act, shall be false in any material representation, all the officers who shall have signed the same, knowing it to be false, shall be jointly and severally liable for all of the debts of the company contracted while they are stockholders or officers thereof.”

It is claimed that the certificate is false, for the reason that at the time the corporation was organized the capital stock was issued for property not worth an amount equal to the par value of the stock issued, and that subsequently a stock dividend of fifteen per cent was made.

The corporation was organized on the 5th day of May, 1887. The plaintiff and five other men were the original incorporators. At that time stock to the amount of 275 shares was subscribed for. It appears that the printing establishment owned by the firm of Goble & Bredenburg, with the lithographing establishment owned-by the firm of Willard, Pitt & More, were united, and the plants of the two concerns were transferred to the corporation. The printing establishment was put into the corporation at $11,000, subject to an indebtedness of $1,000, and $10,000 of the stock of the corporation was issued to Messi’s. Goble & Bredenburg, each taking-fifty shares in payment therefor. The lithographing plant was pub into the corporation at $36,130.29, subject to an indebtedness of $25,130.29, and the stock of the corporation was issued to Mr. Pitt, who had become the owner of the interest of Willard and More therein, for the balance, $11,000.

The corporation so organized entered upon the transaction of business, and continued for the space of about six months, at which time it declared a dividend of fifteen per cent, and tlie same was paid to tlie stockholders in the capital stock of the company. Subsequently, and on tlie 'Tth day of February, 1888, the president of the corporation transferred the stock belonging to him to the defendant, who was thereupon elected its president. It further appears that in June following the company became embarrassed, and several suits were brought against it upon claims which had matured; that thereupon the defendant purchased the outstanding stock held by the stockholders for five cents on the dollar of its par value, and then took the remaining stock which had not been previously issued, paying par therefor, amounting to the sum of about $12,000, and with this additional capital carried on the business of the corporation until its failure in October, 1890.

It further appears that after the owhers of the two plants had agreed upon the uniting of them in one business, the defendant was called in as attorney for the parties, and directed to prepare the necessary papers for forming the corporation. That whilst he thus became informed of the details of the agreement made by the owners of the plants, it is not claimed that he then had any knowledge of the value of the property so put into the corporation, or that it was put in by the owners at an overvaluation thereof; but it is claimed that in June, 1888, the time of the financial embarrassment of the corporation, that he then became aware of the fact that the property of the firms had been overvalued in putting it into the corporation. The plaintiff’s evidence upon this branch of the case was chiefly given by the witness Pitt, who was one of the original incorporators and the manager of the company. His testimony is to the effect that the printing establishment was overvalued in the sum of $4,000, and the lithographing-company was overvalued in the sum of $5,000. He, however, states that, at the time of the forming of the corporation, the lithographing company was actively engaged in carrying on that business, and the same was regarded by them as flourishing ; that the printing establishment was also actively engaged in carrying on its business, and that it was regarded as a successful printing establishment. That they regarded what is commonly known as the good will of the establishments valuable, independent of their property interests ; that tlie property of the two concerns was put into the corporation at its original cost value, estimating that tbe good will of tbe business would make up for tbe depreciation in tbe value of tbe property by its use. None of tbe other incorporators were called as witnesses upon tbis question. Tbe only evidence tending to show that tbe plaintiff knew about this, appears from tbe testimony of Pitt as to a conversation be bad with tbe defendant at tbe time of tbe financial embarrassment of tbe company in June, 1888, and is as follows: “ Mr. Jones said that be bad come into tbe com' pany on my representations, and he bebeved that I bad deceived him in regard to tbe stock dividend, and be asked me the price paid for a particular press. He said: ‘You told me that tbe company bad declared a stock dividend of fifteen per cent and bad earned it.’ I don’t think I said anything in reply. I wasn’t talking at that time. I believe be also asked me where I got tbe price of tbe Potter press; one of our large presses in tbe lithographing room. I told him I made tbe inventory from an invoice we bad. That is all I remember that was said at that time on the subject of tbe property. He criticised tbe exchange of some notes of tbe Lithographing Company for those of C. M. Green, of Fairport. That was about my 'management of tbe company. Mr. Jones, in a general way, criti-cised me about tbe property which was originally taken by tbe company for stock. I cannot tell what be said. Tbe substance of what be said in those general criticisms was, that be claimed I bad deceived him in regard to tbe value of the property and of tbe value of tbe plant; speaking in general terms, that I bad deceived him as to tbe value of tbe plant in inducing him to come in and telling him that we had made a stock dividend of fifteen per cent. He said that I bad overestimated, or overvalued tbe property in putting it in there, in making up the stock company.”

It is upon tbis evidence that tbe plaintiff seeks to establish tbe fact that tbe defendant, in certifying that tbe stock of tbe corporation bad been fully paid in, certified to that which be knew to be false. Let us- consider tbe circumstances under which tbis conversation took place. In February preceding, the defendant bad been induced to purchase a block of stock and to accept tbe presidency of tbe corporation. Its business at' that time bad been represented as flourishing, and that a fifteen per cent dividend bad been earned and paid; in J une following be found tbe company in financial embarrassment, unable to pay its maturing obligations, with several suits on band. Under tliese circumstances be was complaining to the witness, who was the person who had induced him to join the company. He made inquiry, in reference to the value of certain presses, and questioned him as to the truthfulness of his representation as to the dividend. Complained of his conduct as manager in exchanging notes of the company for those of O. M. Green; criticised him in a general way in his conduct of the business, and accused him of overestimating the value of the property put into the company. Is this sufficient to sustain a finding of willful false swearing? Did the defendant then know that the incorporators intentionally evaded the statute, and perpetrated a fraud upon those who should afterwards become creditors of the corporation ? Let us follow him further. He, at this time, takes a transfer to himself of all the stock of the other stockholders, paying them five dollars a share therefor. He thus assumes all of the liability of the corporation] he then pays into the treasury $12,000, or thereabouts, in cash, taking up the unissued stock, and after taking into the corporation some of his friends, made the certificate in question required by the statute, and proceeded with this business. Would he have done this had he known that the incorporation was fraudulent from the beginning? Under the statute the capital stock has to be paid in within two years from the incorporation, if not, the statute provides that the corporation shall be dissolved. The two years were nearly up; the books showed the stock to be full paid. It was full paid, unless the original incorporators had fraudulently overvalued the property put'in by them. We are not satisfied that he knew that this was done. Such knowledge is not consistent with his subsequent action. The acts of the incorporators must be fairly considered, and the statute under which they acted given a reasonable interpretation. The owners of the printing business might have thought the same to be worth more than it really was, and the same may have been true as to the owners of the lithographing establishment. It was natural that they should want to realize for their property all that it was worth; they had the right to demand and receive this; they did not violate the statute unless they, in bad faith, put a fictitious value upon their property for the purpose of evading tbe statute and defrauding others, and the defendant is not liable unless he knew of such misconduct on their part. (Whitney Arms Co. v. Barlow, 63 N. Y. 62; Pier v. Hanmore, 86 id. 95; Bonnell v. Griswold, 89 id. 122; Whitaker v. Masterton, 106 id. 277-281.)

Upon the trial the plaintiff asked the witness Pitt if the defendant said anything to him in June, 1888, at the time of his purchase of the stock, about the value of the stock. This Avas objected to by the defendant, and thereupon the plaintiff offered to show that the defendant stated that the stock was absolutely rvorthless. The objection was sustained and an exception Avas taken by the plaintiff. ¥e think the evidence might have been properly admitted, but do not consider its exclusion such an error as requires a new trial. The conversation called for was at the time the defendant was purchasing the stock of the other stockholders. It appears that he purchased their stock, paying five cents on the dollar therefor. It thus appears from the transaction itself that the stock Avas nearly worthless, and if in that connection he made the statement that it was absolutely worthless, it would not operate to change our view of the case. In that connection the trial judge made a statement to the effect that he should hold that the knowledge of the defendant in June, 1888, of the intentional overvaluation by the incorporators was not a material fact in the case. This view we do not wish to be understood as indorsing.

As to the fifteen per cent dividend, it appears from the testimony that it had been earned, and the books of the company so sIioav.

Whether the plaintiff was misled by the certificate, or is estopped from claiming that there was an overvaluation by reason of his being one of the original incorporators, we do not deem it necessary to consider.

The motion for a neAv trial should be denied, with costs and judgment ordered for the defendant upon the nonsuit.

Dwight, P. J., and Lewis, J., concurred.

Plaintiff’s motion for a new trial denied, with costs and judgment ordered for the defendant upon the nonsuit.