text:
    Nathaniel Jarvis, Jr., Plaintiff, v. Sarah Lynch, as Executrix, etc., of William Lynch, Deceased, and Others, Defendants.

      Hjectment — proof as to the identity of property described in old deeds with that described in the complaint — Dongan charter — property on the Harlem, ricer between high and low-water marks — street opening proceedings, as proof of title — no presumption of a grant from permission to cut grass.

    Upon the trial of an action in ejectment it is necessary that the deeds introduced by the plaintiff to prove title should locate the property with sufficient accuracy to enable a court or jury to determine whether the same property • referred to in the deed is described by the words of the complaint.
    Where it appeared that the property described in a complaint in an action of ejectment was at some period of time situated between high and low-water marks of the Harlem river, and that the city of New York, prior to the conveyances under which the defendants asserted title, claimed, by virtue of the Dongan charter, to he the owner of all lands upon that river between such marks, the court considered that the description of the premises, made in 1816 by commissioners appointed in a proceeding to open a street, and which gave one of the boundaries of the premises as the Harlem river, could not he said to include of necessity the part which lay between high and low-water marks.
    The effect of proceedings taken by a municipality to open a street is merely to vest title in the city to the lands taken; it has no other effect.
    Such assessments are levied upon property and not upon owners. The action, of the commissioners, appointed in such a proceeding, in levying assessments upon property described as owned by certain individuals, does not amount to a judicial determination, binding upon parties and privies, that the persons named had title to the lands assessed.
    Proof that a prior grantor of the plaintiff, occasionally and as late as 1869, gave persons permission to cut grass upon the locusin quo, which was neither fenced nor cultivated, will not authorize the presumption of a grant.
    Motion by tbe plaintiff, Nathaniel Jarvis, Jr., for. a new trial upon a case containing exceptions, ordered to be heard at the General Term in the first instance upon the dismissal of the complaint directed by the court after a trial before the court and a jury at tbe New York Circuit on 4th day of April, 1889.

      Anderson Price and Charles Blandy, for tlie plaintiff.

      Charles E. Miller, Henry II. Anderson and Geo. Wel/wood Murray, for tbe defendant Sarah Lynch.
   Per Curiam :

This action, which is one of ejectment to recover possession of premises consisting of a block of land in the city of New York, bounded by One Hundred and Fifty-fifth and One Hundred and Fifty-sixth streets, Eighth avenue and Exterior street, extending along the Harlem river, has been twice tried. The first trial resulted in a dismissal of the complaint, and the judgment entered thereon was affirmed upon appeal to this court upon the ground that it was impossible to determine, from the descriptions in the deeds and grants through which plaintiff claimed title, whether they affected the premises in controversy. (13 N. Y. Supp. 703.) The evidence .satisfactorily establishes that these premises formerly lay between high-water mark and low-water mark of the Harlem river, and the defendants insist, upon the authority of The Mayor, etc., v. Hart (95 N. Y. 443), that the title thereto did not pass to the freeholders and inhabitants of Harlem by the Nicolls patent of 1666, as claimed by the plaintiff, but, instead, that the title thereto became vested in the mayor, aldermen and commonalty of the city of New York by the Pongan charter of 1686, and it may be observed in passing that the argument in that case strongly supports the defendants’ contention, although there is present that opportunity for distinction between the cases which was pointed out by this court on the former ■appeal. Passing to the question, whether the deeds put in evidence by the plaintiff located the property with sufficient accuracy to enable a court or jury to determine whether it is described by the words of the conrplaint, we observe that the plaintiff lias not over■come the defects in the proof which were pointed out by this court ■on the former appeal. Upon this trial he claims title through precisely the same deeds or grants and none other. Assuming that the title to the premises in controversy passed by- the Nicolls patent of 1666 to the freeholders and inhabitants of Harlem, and that such property can be located with sufficient accuracy in the several mesne conveyances between and including the deed from the freeholders and inhabitants of Harlem to Parent Waldron, and the deed from John Myer to Abraham Myer in 1743, still the plaintiff falls far short of the proof requisite to maintain his action, for the subsequent conveyances do not contain such a description of the premises in question as make it possible to locate it as a part of the property described in the grants.

Tlie plaintiff testified that he received, as a part of his muniments of title, an unrecorded deed from Abraham Myer to Arent Myer, dated March 21, 1746, and an effort was made to prove it as a lost instrument, and to show that the premises described therein were the same as in the deed'of 1743 from John Myer to Abraham Myer. We have examined the folios to which counsel referred as proof of his assertion, that the lost deed was admitted in evidence, and they do not seem to us to sustain his position. It is true that the plaintiff testified that lie had had such a deed and that it was mislaid, and upon being shown a memorandum he testified it was copied from his memorandum book which contained a copy of tlie deed.

The memorandum being handed to him by his counsel with a request that he read it, an objection was interposed by the counsel for the defendants, and the court said: “You have, according to Mr. Jarvis’ testimony, a copy of the original deed in his record book still in his possession ; why not bring that down? ” This suggestion of the court seems to have been acquiesced in, for the counsel for the plaintiff at once proceeded to inquire of him with reference to other papers which were subsequently put in evidence, and we have not been able to find that the subject was again referred to. But if it can be assumed that the testimony elicited from the plaintiff while his counsel was attempting to lay a foundation for the introduction of secondary evidence constituted sufficient proof of the instrument as a lost deed, and established that it contained a description like that in the deed from John to Abraham Myer, then the fact is that from the date of such deed, March, 1746, every instrument, whether of will or deed, through which plaintiff claims title was without such a description as would enable a court or jury to say that the premises in question were described therein.

As each of such instruments was referred to on the former appeal their further consideration is not needful. The plaintiff introduced in evidence the proceedings for the opening of Eighth avenue, which were confirmed in the year 1816. The commissioners’ report states “ that the said Aaron'Bussing is also seized in fee of and in certain lands and premises easterly of and adjoining to the last above-described piece or parcel of land which said last-mentioned adjoining lands and premises are situated in the said Ninth ward of the said city of New York, and are bounded northwesterly in front by the last above-described piece or parcel of land; northeasterly by Harlem river aforesaid ; southeasterly by the center line between the said Eighth avenue and the Seventh avenue, and southwesterly by lands and premises now or lately belonging to the above-named Cadwallader D. Golden.”

In considering what value, if any, this evidence has, it may be observed:

First. That in the absence of measurements it is difficult, to say the least, to determine whether any part of the premises in controversy was included within this description.

At some period of time this property was situated between high and low-water mark, and the city of New York, prior to the conveyances under which the defendants claim title, claimed to be the owner of all the land between high and low-water mark on the Harlem river under the Hongan charter. So a description made by the commissioners appointed in a proceeding to acquire land for city purposes, which gives as one of its boundaries the Harlem river, cannot be said to necessarily include premises lying between high and low-water mark.

Second. While the effect of such a proceeding is to vest in the city the title to lands taken for the purpose of a street, it has no other effect. The commissioners appointed by the court in such cases endeavor to obtain the names of the owners of the property taken, but if this cannot be accomplished, the city may, nevertheless, acquire title to the property upon compliance with the provisions of the statute authorizing the making of an award for damages to unknown owners.

The other feature of the proceeding relates to the assessment upon property benefited to defray the expense of the opening of the street.

While the names of the owners of the property are usually given, the assessment, nevertheless, is upon the property benefited, not upon the individual.

And any suggestion that such action upon the part of the commissioners amounted to a judicial determination, binding upon all parties and their privies, that the persons named had title to the property assessed, is too absurd for serious consideration.

On tliis trial, as on the former one, the plaintiff introduced evidence of alleged acts of possession on the part of Aaron Bussing for the purpose of proving seizin of plaintiff’s grantors. For that purpose, as was said on the former appeal, the evidence was of no value in the absence of evidence of title in Bussing. It is also claimed that the evidence of possession introduced on the part of the plaintiff covered such a period of time as requires a grant to be presumed. We do not understand that it can be given that effect.

The premises were never fenced in nor cultivated, nor were they ever capable of cultivation prior to the time when the defendants filled in the property at great labor and expense.

It does appear, from the testimony of the plaintiff, that one of the devisees of Aaron Bussing, during a period of years, occasionally gave permission to parties to cut grass on it. The interviews occurred, according to the plaintiff, at the residence of the devisee, nearly a half a mile from the premises in controversy. The plaintiff further testified that when he gave permission for the cutting, the- uncle pointed towards the river and in the direction of the meadow. How much, if any, of the land in. controversy was included in such pointing out ” by the uncle it is not easy to determine. It seems -quite clear that the witness had a very indefinite recollection on the subject, for, according to his testimony, the period of time during which he knew grass to have been cut extended down to 1869, whereas it further appeared from his testimony that upon his return from a visit to South America, in 1856, he found the property filled in. If it satisfactorily appeared that the cutting of grass was upon the property in question, such evidence would not be of sufficient value to authorize a presumption of a grant. (Price v. Brown, 101 N. Y. 669.)

We do not think the proof on this trial requires any different disposition of the case than was made on the former appeal.

The exceptions should be overruled, and judgment ordeyed for the defendant, with costs.

Present — ■ Van Brunt, P. J., Parker and Patterson-, JJ.

Exceptions overruled and judgment ordered for defendant, with costs.


source: Caselaw Access Project

author: Tan Brunt, P. J.:

license: Public Domain

text:
    The People of the State of New York, Respondent, v. James Hughes, Appellant.

      Larceny — distinction between larceny and false pretenses — evidence of simila/i' offenses — stealing from a partner.

    Where the owner of property is induced hy trick or device to part with its possession, intending to transfer an interest in or the title to the property, the person thus obtaining it is guilty of the crime of obtaining goods under false pretenses, an offense now requiring a special count as a form of larceny, but he is not guilty of a larceny at common law.
    Where, however, a person, employing similar methods, obtains possession of property from its owner for a special purpose, really intending to appropriate it to his own use and not to the special purpose, he is guilty of a common-law larceny.
    In the former case the owner intends to confer the title upon the other person, while in the latter case he intends to confer possession upon him for a special purpose.
    Upon the trial of an indictment for larceny, it appeared that the defendant advertised for a partner; that the complainant called upon the defendant in answer to the advertisement, and was told by him that he was in the produce business and wanted a partner with §300; that the complainant drew this amount from a bank, and that upon again meeting the defendant a partnership agreement between the parties was drawn up by a lawyer; that the defendant then told the complainant that various articles of produce must be bought, and obtained $275 from the complainant for this special purpose; that at the same time he showed or tendered to the complainant a check upon a bank for §325; that as no purchases were made by the defendant with the money the complainant became suspicious; said that the check was worthless and demanded the return of his money; that the defendant refused to return it and said he would meet the complainant the next day; that he did not do this, and when the complainant met him subsequently in an accidental manner and accused him of swindling, he ran away and was not seen again until he was arrested.

      Held, that he was properly convicted of larceny;
    That upon the question of the defendant’s intent it was proper to admit evidence of similar frauds committed by him;
    That the court properly refused the defendant’s request that the jury be charged that if they found that the complainant and defendant were legal partners in business, even if the defendant intended to steal, it would not be a crime.
    Appeal by the defendant, James Hughes, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, rendered on the 4th day of April, 1895, convicting him of the crime of grand larceny in the second degree.

      Hugh O. Pentecost, for the appellant.

      John D. Zinclsay, for tlie respondent.
   Tan Brunt, P. J.:

The defendant was charged with stealing $275 from one Frederick Challacomb. It appeared upon the trial that the complainant answered an advertisement which appeared in the New York World, stating that he was looking for a pfiace of business to go in of the kind referred to in the advertisement, and that he had $300 which he was willing to put up with an honest man. On the twentieth of February the defendant called upon the complainant at his house in Elizabetlrport, New Jersey, introducing himself as the writer of the advertisement, and explaining that lie had called in answer to the complainant’s letter. The defendant told the compdainant that he was in the produce business, and that he was making from twenty-five to fifty dollars a week, and that he wanted an honest man for a partner who would piut up $300; that lie wanted a man who was not afraid of work. After talking the matter over and learning that the complainant had the necessary amount in the bank, it was arranged that the complainant should meet the defendant at the foot of Liberty street in the city of New York the following morning at half-p>ast nine o’clock, and the defendant told complainant to have his bank book with him in case they should find a place suited to them, so that -they would have the necessary funds to go on with the business. They met as agreed, and at the defendant’s suggestion they went to look at stores. After looking at palaces in the neighborhood of Gansevoort Market, which the defendant said did not suit him, they went down to a man on the dock and bargained about some piotatoes, but the defendant pn-etended to find the police too dear. The defendant then told the complainant that he must have some references, and took him to his home at No. 365 West Thirty-fifth street, where he introduced him to his mother, who told the compolainant that her son was an industrious boy, and had formerly been in business with his father; that she would like to see him go into business with an honest man, and that she liked the complainant’s appoearance well. At the defendant’s suggestion, the complainant then went over to Williamsburgh, drew out his $300 in cash from the bank, and, returning to the city, met the defendant in the World building at two o’clock. He found him there in company with a man named Anhalt. The three went together to the office of a lawyer, where a co-partnership agreement in the usual form was drawn up, by which the defendant and the complainant agreed to become co-partners in business as produce commission merchants under the firm name of Hughes & Challacomb, and that each should contribute the sum of $300 to the business. The defendant told the complainant then that he had been buying and selling potatoes, and that he had lots of customers, and said that he must have 200 barrels of potatoes that night to be delivered the next morning. He said: “ Let us go down to the docks and see how we can buy some potatoes, because I must have them to-night.” This was about three o’clock in the .afternoon. They went down to the dock and found the market closed. The defendant then said: I must have those potatoés to-night; come along Washington street.” They went along Washington street and into Kelly & Powers’ store, and asked for potatoes. After bargaining there for some time they left the store, the defendant saying he would go along further and see if he could not do better. Prom there the parties went to a saloon, where the defendant said he wanted to buy oranges and apples, as well as potatoes, and figured up the cost at about $475. The defendant said he had no ready money, but he produced a check on the West Side Bank for $325, which he placed on the desk, and said to the complainant: “You have three hundred dollars, haven’t you ? ” The complainant said he had. The defendant said he thought they could not do better than buy the potatoes at Kelly’s, and that they would go right back and buy them. Thereupon, at defendant’s request, the complainant gave him his $300 in bills, and the defendant gave the complainant twenty-five dollars in small bills for “ necessaries,” and they went back to Kelly & Powers’ place, together. They saw the salesman and endeavored to induce him to take a lower price, but not succeeding, agreed to purchase twenty-five barrels at two dollars a barrel. The defendant tendered in payment one of the complainant’s $100 bills, but no change could be obtained, so it was agreed that the purchase should stand over until the morning, and the complainant deposited a five-dollar bill to bind the bargain. Upon leaving the. place tlie defendant said to complainant: “We will go down-and see if we can get some oranges.” Tlie complainant agreed to tliis, whereupon the defendant said: “ I guess it is too late to do any business anyhow to-night.” The complainant then said to the defendant: “ You have got two hundred and seventy-live dollars in your pocket and aint going to do any business ? I said, £ You haven’t paid anything. I shall not trust you. You haven’t put up any money.’” The defendant replied: “ Why, here is my check on the West Side Bank. You must trust me, because I am trusting you. I am trusting my name to you.” The complainant answered that his name didn’t “ amount to that,” and that he wanted his money back. The defendant told him he couldn’t get it back. The complainant said: “ I don’t want to trust you at all. I don’t intend to trust you.” The defendant said he would have to trust him until the next morning, when he would meet him at Kelly & Powers’ to complete the bargain, and that meanwhile he would keep the money.

Naturally, the defendant failed to appear tlie next morning, and after waiting for three hours the complainant went home, where he found a telegram from tlie defendant saying that he would be at the appointed place at two o’clock on the twenty-third. He did not appear on the twenty-third, and on the twenty-fourth, when the complainant was at the same place, he saw the defendant passing by. He'stopped him and said : “Now, I says, ‘Look here, where is my money ? Y ou are a swindler; ’ I says, £ I found out you swindled a man eight days before this out of $250 ; ’ I says, £ Give me my money back, or go in there and buy that stuff.’ ” The defendant said : “ I will do neither; I am going home.” The complainant followed him to the corner of Thirty-fifth street and Ninth avenue, where he saw a police officer, to whom he said, in the defendant’s presence : “ Officer, I want this man arrested; he swindled me out of $275.” The defendant started away, and was going up tlie stoop of liis house, when the complainant overtook him and seized him by the coat tails. Thereupon the defendant’s father and two other men set upon the complainant, and the defendant escaped. When tlie officer arrived, there was no trace of him, and the complainant never saw him again, until after his arrest upon a charge of swindling another man in a similar transaction.

Upon this state of the evidence, the jury very properly convicted the defendant of larceny, as charged in the indictment. From the judgment thereupon entered this appeal is taken.

The principal ground of the appeal seems to be that the evidence did not justify the conviction of the defendant of larceny at common law, although he might .have been convicted of obtaining money by false pretenses, which, under our statute, has been made larceny,, but which requires a special count in order to sustain a conviction.

It has been held, and the rule undoubtedly obtains, that if the owner of property, by trick or device,' has been induced to part with the possession thereof, intending to transfer an interest therein or the title thereto, then a criminal appropriation of such property will not be a common-law larceny, but the crime of obtaining goods by false pretenses. (People v. Dumar, 106 N. Y. 502.) It is also equally well settled that to constitute a common-law larceny it is not necessary that the property stolen should be taken from the possession of the owner by a trespass; but if a person obtains possession of the property from the owner for a special purpose, by some trick, device, artifice, fraud or false pretense, intending to-appropriate it to his own use, and not to the special purpose for which he received it, he is guilty of larceny; and so it has been repeatedly held. (People v. Laurence, 137 N. Y. 517, 522.) The distinction between the two cases being that the owner of the property stolen, in the case last cited, did not part with the possession of it with the intent of conferring title to the property upon the party charged with the larceny. In the first case the intent of the owner was to clothe the party with the title; in the second, the owner only gave him possession, not intending to clothe him with the title, but to use for a specific purpose.

It is urged upon the part of the defendant that the evidence established as matter of law the fact that the complainant intended to contribute the money in question as his share of the co-partnership fund and to clothe the defendant with the title thereto as his co-partner. It seems to us upon a consideration of this evidence that the jury had a right to find, and did properly find, that there was no intention upon the part of the complainant to clothe the defendant with the title to this property; but that it was given to him for the purpose of purchasing merchandise, and that it was obtained from the complainant for that purpose; and that there was no intention whatever to contribute this money as part of the co-partnership capital until the defendant had paid in his promised contribution. It is clear that his check was not accepted as such; and that after the refusal of the defendant to purchase the merchandise which he had been talking about, he was viewed with suspicion, and there was no intention whatever upon the part of the complainant to make an absolute contribution of this money as co-partnership capital until the defendant had complied with his part of the agreement. • The money was handed over to the defendant for him to invest in merchandise. Instead of that, he ran away with it; and it would appear, under all the rules applicable to cases of this description, that his conviction was entirely proper.

It is further urged that error was committed in admitting evidence in regard to similar frauds which had been perpetrated upon other persons whom he had succeeded in making his victims. This evidence seems to have been entirely competent upon the question of intent, which was a necessary ingredient of the crime with which he had been charged.

"Various criticisms are also passed upon the charge of the learned judge who presided at the trial, most of which were not brought to the attention of the court in any respect at the trial. It is undoubtedly true that the court, in the interests of justice, even where no exception is taken, has the right to reverse for errors in the conduct of the trial. But the court will not encourage the practice of counsel in not calling the attention of the trial court to alleged errors committed during the progress of the trial when they could be corrected ; and will not reverse, even if such errors appear, where it is satisfied of the guilt of the defendant. There seems to be no reason to doubt that the verdict of the jury in the case at bar was entirely in harmony with the interests of justice.

The court was requested to charge that “if the jury found that Challacomb and the defendant were legal partners in business, even if there was an intention to steal upon the part of the defendant, it would not be a crime.” The court refused to charge this proposition and an exception was taken. It seems,to be a novel proposition that because two men are partners neither of them has any rights or property in his individual possessions — which is the logical application of the proposition requested to be charged. This illustration shows the fallacy of the request.

The judgment should be affirmed.

Parker, J., concurred.

Judgment affirmed.


author: Yan Brunt, P. J.:

text:
    Annie Naughton and John E. Naughton, as Executors and Trustees under the Last Will and Testament of Eliza Naughton, Deceased, Respondents, v. Ann Vion and Others, Defendants; Bridget M. Dooley, Appellant.

      Foreclosure —- a judgment by default should follow the relief demanded in the complaint — a judgment giving relief not asked for is irregular but not void, where the facts alleged justify it.

    A judgment should not be taken against a defendant upon his default for relief not demanded in the complaint, but where a judgment has been entered by default for relief to which the plaintiff is entitled under the allegations of his complaint, although such relief is not asked for, the judgment is not void, but is irregular, and may be amended in furtherance of justice.
    In an action brought to redeem from a sale in foreclosure, it appeared that James Naughton, owner of the fee, mortgaged the premises in question to James Dooley, who assigned the mortgage to a person named Wallace; that in the meantime the fee had passed from James Naughton to Eliza Naughton; that Wallace foreclosed the mortgage and made Eliza Naughton a party to the foreclosure suit; that she was duly served with the summons and the notice of the object of the action; that she made default therein, and that judgment “adjudging that the defendants and all persons claiming under them, or any or either of them, after the filing of such notice of pendency of this action, be forever barred and foreclosed.”
    It further appeared that the complaint demanded judgment that the. defendant James Naughton and all persons claiming under him subsequent to the commencement of the action should be barred and foreclosed of their rights and claims, but it asked no relief foreclosing the grantees of James Naughton.
    Held, that the judgment was not void, was merely irregular and should be amended;
    That the trustees of the residuary estate of Eliza Naughton, since deceased, had no standing to redeem the premises, as their action was barred by the foreclosure judgment.
    Appeal by the defendant, Bridget M. Dooley, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on tlie Ttli clay of May, 1895, upon the decision of the court rendered after a trial at the New York Special Term.

      David MoOhore, for the appellant.

      Alfred L. Brown, for the respondents.
   Yan Brunt, P. J.:

In February, 1814, one James Naughton, being the owner of the premises in question, mortgaged the same to one James Dooley to secure the payment of $3,250. ’After Naughton had made the mortgage, he conveyed the premises covered by the mortgage to John E. Naughton, who in turn conveyed them to Eliza Naughton. Dooley assigned the bond and mortgage to a man by the name of Wallace, who commenced an action to foreclose said mortgage. At this time Eliza Naughton was the owner of the fee. She was made a party defendant to the foreclosure suit, and was served with the summons, together with a notice of the object of the action. She did not appear in the action. Thereafter such proceedings were had that a judgment of foreclosure and sale was entered, which, among other things, adjudged “that the defendants, and all persons claiming under them, or any or either of them, after the filing of such notice of pendency of this action, be forever barred and foreclosed.” Under this judgment a sale was had upon which the plaintiff in that action bought the property, and the defendants in this suit claim through him. Eliza Naughton, the owner of the equity of redemption at the time of the foreclosure, died in October, 1891,' leaving a last will and testament which was duly admitted to probate by the Surrogate’s Court of the county of New York, by which will her residuary estate was devised to her son, John E. Naughton, and her daughter, Annie Naughton, as trustees upon certain trusts. These trustees bring the present action to redeem, basing their right to such relief upon the ground that the prayer of the complaint in the foreclosure suit did not ask that the equity of redemption of Eliza Naughton should be barred and foreclosed, and that the judgment which was entered in that action being for other relief not prayed for in the complaint, is void so far as it cuts off the right to redeem of Mrs. N anghton. The plaintiff succeeded in the action, and from the interlocutory judgment thereupon entered this ajqseal is taken.

The complaint in the foreclosure action was in the usual form, and alleged that Eliza Naughton had, or claimed to have, some interest in or lien upon said mortgaged premises or some part thereof, which interest or lien, if any, had accrued subsequently to the lien of said mortgage. The complaint demanded judgment that the defendant James Naughton (the person who conveyed the fee to John E. Naughton), and all persons claiming under him “ subsequent to the commencement of this action,” might be barred and foreclosed, etc., and did not ask relief barring and foreclosing liis grantees.

It is claimed, as already stated, that the judgment of foreclosure and sale barring these parties was irregular and void upon the ground that the parties being in default, a judgment more favorable to the plaintiff than that demanded in the complaint could not be had. It may be true that the judgment was irregular, but it was not void, and if it was not void, this action cannot be maintained. N one of the cases cited upon the part of the respondents holds that such a judgment is void. It is true that it is held that judgment will not be permitted upon default for more than is asked for in the complaint, and that upon motion in the action in which such a judgment has been entered, such judgment will be set aside where justice requires it. But in no case has it been held that where a judgment has been entered for relief to which the plaintiff by his allegations has shown himself to be entitled, the judgment is void because he did not demand such relief. It is clear that if, after the service of the summons and notice of object of action 'in the foreclosure suit upon the owner of the equity of redemption, the plaintiff therein had discovered the omission in the prayer of his complaint, that upon an ex parte application the court would have had the right to have cured the defect. And that such right exists even after judgment seems to be established by the case of Hogan v. Hoyt (37 N. Y. 300). In that case a decree of foreclosure was entered appointing a referee to sell. Instead of the sale being made by the referee, it was made by the sheriff. This discrepancy having been discovered upon an examination of the title by a proposed purchaser, a motion was made to amend the decree by striking out the name of the referee and inserting that of the sheriff by whom the sale was actually made. Sncli motion was granted by the Special Term, and the order entered thereon was affirmed by the General Term and by the Court of Appeals.

In the case of Hatch v. Central National Bank (78 N. Y. 487), after the plaintiffs had recovered a judgment and it was satisfied, a motion was made to vacate the judgment, which was done and new causes of action allowed to be added to the complaint by amendment, although by so doing the Statute of Limitations was avoided.

The case of Ladd v. Stevenson (112 N. Y. 325) lays down the broad principle that pleadings and proceedings may be amended entirely independent of the Code where the furtherance of justice requires it; that it is an inherent power in the court, which it would bo quite unfortunate if it did not possess to the fullest extent.

The judgment in question in the case at bar, therefore, being capable of amendment, was not void, and is a bar to the maintenance of the present action.

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

Follett and Parker, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.


text:
    Lillie J. Earle, Respondent, v. George H. Robinson, as Trustee, and Others, Appellants, Impleaded with Ferdinand P. Earle.

      Conditional sale — the vendor has no lien for the purchase price — effect of a retalcing of the property by the vendor — failure of consideration of bills and notes given therefor — estoppel.

    Where the consideration for which promissory notes were given has failed, there can be no recovery against.the maker upon renewal notes which merely include, as a new consideration therefor, the interest due upon old notes and extend the time of payment.
    Interest is a mere incident to a debt, and when the debt is destroyed, there is nothing which can draw interest or furnish a consideration.
    The extension of the time to pay a debt, which has been extinguished by the act of the creditor, is not a sufficient consideration for a promise to pay the debt.

      Where there has been a sale of goods, with the precedent condition that the title shall not pass until full payment of the purchase price, the vendor can have no lien for the purchase money. A person cannot have a lien upon his own goods.
    The Legislature has recognized, by the acts chapter 684 of 1893 and chapter 523 ¿f 1895, the fact that no such lien exists in the case of a conditional sale.
    Upon the trial of an action, brought to restrain the foreclosure of a mortgage executed to George I-I. Robinson as trustee, 'it appeared that Ferdinand P. Earle was, in 1893, lessee of the New Netherland Hotel in New York; that he bought, of W. & J. Sloane and of the Phcenix Furniture Company and of the Gorham Company, furniture and other articles required for the hotel; that he gave his notes to the respective vendors for the respective purchase prices, with an agreement that title to the articles was not to pass to him until full payment of the respective notes; that the Phcenix Furniture Company, however, further agreed that if Earle made default and should have then paid certain amounts, the company would return a certain part of the furniture; that Earle failed to pay the notes held by W. & J. Sloane and by the Gorham Company; that thereupon the three creditors demanded new notes, which should be secured by a mortgage upon the lease and furniture of the Normandie Hotel, of which Earle was also proprietor; that he complied with this demand and executed to George H. Robinson, as trustee, the mortgage in question, which provided that it should not affect the securities then held by the creditors; that the new notes executed by Earle exceeded the old notes held by these creditors only by the amount of the interest then due upon the old notes; that the old notes were not surrendered, but that the creditors agreed not to negotiate them; that Earle was dispossessed from the New Netherland Hotel on March 19,1894, and his interest in that hotel and in the lease of, and personal property in, the Normandie Hotel was sold on executions in favor of other creditors and was purchased by the plaintiff; that Earle soon after defaulted in the payment of the notes given to W. & J. Sloane and to the Phoenix Furniture Company; that these parties retook the property that they had delivered to Earle, and then notified Earle and the plaintiff that they would sell it and give them credit for the proceeds, and that they sold the propertjr to the new lessees of the New Netherland Hotel by a bill of sale, in which they covenanted that they were the sole owners of the property sold, and that they would warrant and defend the sale.
    Subsequently George H. Robinson, as trustee, notified the plaintiff of his intention to foreclose his mortgage, and the plaintiff thereupon brought this action to restrain him.

      Held, that the action was maintainable;
    That the consideration for the old notes had failed by virtue of the retaking and sale of the furniture by its owners, and that no consideration, moving to Earle, was shown for the renewal notes;
    That the sale of the furniture, in the first instance, was conditional, and that as Earle had made default in paying the notes, he never had title to the property for which they were given;
    That the vendors could have no lien upon articles sold under an agreement that the title thereto should not pass until full payment of the purchase price;

      That the vendors were at all times the owners of the property, and had estopped themselves from claiming otherwise by selling the property as their own and guaranteeing the title to their vendees, the lessees of the New Netherland Hotel.
    Appeal by the defendants, George Ii. Robinson, as trustee, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of August, 1895, upon the decision of the court rendered after a trial at the New York Special Term.

      George M. Pi/nney, Jr., for the appellants.

      JÍ. J. Dittenhoefer and David Gerber, for the respondent.
   Yan Brunt, P. J.:

There does not seem to be any dispute in regard to the facts upon which the judgment appealed from was founded. _

It appears that in the year 1893 the defendant Ferdinand P. Earle, having become the lessee of a hotel in this city, known as the New Netherland, bought of the defendant company, W. & J. Sloane, carpets, hangings, draperies and upholstery for that hotel, which goods were delivered to Earle under an agreement which contained the following provision: “ It is hereby agreed that these goods, described as above, are the property of and belong to W. & J. Sloane until paid for in full.” Earle gave to W. & J. Sloane certain promissory notes, having considerable periods to run, for the purchase price of said goods.

On the same day the defendant, the Phoenix Furniture Company, sold and delivered to said Earle the furniture for said hotel, and Earle gave to that company, also, his promissory notes in payment therefor, having also considerable periods to run. This furniture was delivered to Earle under an agreement which contained the express provision that the title should not pass to Earle, but should remain in the company until Earle should have paid the said notes and all insurance premiums, and that, in default of payment, the company was to have the right to take possession of said furniture and remove it from the building, and, inasmuch as it might not be possible to sell it as new furniture, it was further agreed that all payments made up to the time the property was so taken should, belong to the company, and that, if one-lialf of the purchase price should have been paid by Earle, the Pliosnix Company would return one-fourth of the furniture, and that if three-fourths of the purchase price was paid, the company would return to Earle one-lialf or the furniture, according to the schedule prices, the selection to be made by the company.

Earle also purchased of the defendant, the Gorham Manufacturing Company, the silverware for said hotel, which said company took in payment therefor Earle’s promissory notes, secured by chattel mortgage on said silverware.

Earle failed to pay as they became due certain of the notes held by W. & J. Sloane and the Gorham Company. In consequence of such default the three companies demanded that Earle execute and deliver new notes, and that he secure such new notes by a mortgage upon the lease of, and the personal property in, the Hotel Normandie, of which Earle was the proprietor. In compliance with this demand, and for the purpose of securing an extension of time of payment, Earle, on the loth of January, 1891, executed and delivered to the three companies certain new promissory notes payable to their order. Contemporaneously with the delivery of such new promissory notes to the three companies, Earle executed and delivered to the defendant Robinson, as trustee, as further collateral security for the payment of the notes, a mortgage on the lease of, and the personal property in, the Hotel Normandie. The Normandie mortgage and also the written offer, signed by Earle, pursuant to which the mortgage and the new notes were given, both contained the following provision:

“ That none of the present security now held by you (said three corporations) is to be changed in any respect, but that this extension of the terms of payment is in consideration of the payment of one dollar (§1) and the giving of the aforesaid mortgage as further collateral security thereto.”

The amount of new notes exceeded the amount of the old notes by the amount of the interest added. At the time of the making and delivery by Earle of the Normandie mortgage and the new notes, none of the old notes were surrendered, as by express agreement the old notes were to be retained by the three companies, but were not to be negotiated by them, and were not to be surrendered to Earle until the new notes were paid.

The day after the execution of the Normandie mortgage Earle paid $2,000, which was distributed amongst the defendant compamies. Earle was dispossessed from the New Netherland Hotel on the 19th of March, 1894. He thereupon confessed judgment to certain creditors, and the plaintiff, under the execution sales which followed, purchased for a nominal consideration the right, title and interest of Earle, both in the New Netherland property and also in the lease and personal property covered by the Normandie mortgage.

On the 5th of April, 1894, Earle made default in paying the first of the new notes, which became due on that day, to W. & J. Sloane and the Phoenix Company. On the sixth of April the Sloane and Phoenix Companies retook the property which they had sold and delivered to Earle, and each sent, both to Earle and the plaintiff, a written notice containing this statement:

“We further notify you that we shall, in due coirrse and within the time allowed by law, sell all of said property' so retaken by us for the best price we can obtain, and give you credit for the proceeds of such sale. We shall be pleased to receive any suggestions which jou may desire to make regarding the sale of said property as we desire to do in all respects what is best for both parties.”

• On the 30th of July, 1894, the Phoenix and Sloane Companies sold the chattels which they had thus retaken at private sale to Robert Stafford and H. P. Whittaker, the present lessees of the Netherland, the Phoenix Company realizing $75,000 and the Sloane Company $35,000. A bill of sale of the furniture was executed by the Phoenix Company and purported to grant and convey “ all the furniture at present located in the Hotel ‘New Netherlands,’ now designated as the Hotel Netherland,” and contained covenants upon the part of the vendor as follows :

“ And said party of the first part does hereby, for itself, its successors and assigns, expressly covenant that said furniture, and the whole thereof, is free and clear of and from all claims, demands, liens and incumbrances of every kind, and that said party of the first part is the sole cmd exclusive owner thereof, free from any demand or claim on the part of any person or persons whatsoever.

“ And said party of the first part does hereby, for itself, its suecessors and assigns, expressly covenant and agree, to and witli said parties of the second part, to warrant and defend the sale of the said furniture, and the whole thereof, hereby sold unto the said parties of the second part, their executors, administrators and assigns, against all and every person and persons whomsoever.”

A bill of sale with similar covenants was executed by the Sloane Company for the carpets, curtains, drapery, bedding and chairs in said hotel.

Subsequently the trustee of the Normandie mortgage gave notice of an intention to foreclose, sell and dispose of all the property mentioned and included in that mortgage. Whereupon this action was brought to restrain the foreclosure of the mortgage upon the ground that there was nothing due thereon.

The foregoing facts appearing upon the trial, the court held that the mortgage could not be foreclosed ; that there was "nothing due thereon, and gave judgment for the plaintiff ; and from such judgment this appeal is taken.

It is urged upon the part of the appellants that The vital error of the learned justice is * * * that he wholly overlooks the circumstances under which the new notes were given by Earle to the three companies. He erroneously assumes that the consideration for the new notes was simply the original purchase price of the property agreed to be sold and delivered by the companies to Earle.”

In this it seems to be assumed that if no recovery could be had upon the old notes because the consideration therefor had failed, a recovery could be had upon the new notes because there was incorporated in the new notes the interest upon the amount secured by the old notes and the time for payment extended. This is the only new consideration (if it may be called such) which was incorporated into the new notes. It seems to us that the learned counsel loses sight of the fact that interest is a mere appurtenant to a debt, and when the debt is destroyed there is nothing upon which interest can stand. The extension of time to pay a debt which becomes extinguished by the act of the owner of such debt can never be a sufficient consideration of itself to support a promise to pay the debt. If the position of the learned counsel is correct, then when a note is renewed and interest is added, no matter if the consideration for the first note entirely fails, the renewal note can be enforced. It is not necessary to cite authorities for the purpose of establishing the proposition that renewal notes, although interest may be added and time extended, are subject in the hands of the original holders to the same defenses as the original debt; and that if by the act of the creditor the debt ceases to be enforeible, such defense is' applicable to all renewals or extensions of the time of payment of such debt whether interest is included or not; and when the learned court held that there could be no recovery for the original indebtedness, the structure upon which the whole of this security rested failed, as • payment of a collateral can never be enforced where the original debt is extinguished.

The question, therefore, resolves itself into that which was determined by the learned justice below against the appellants. Upon an examination of the case and a consideration of the arguments presented upon this appeal, we think that the learned counsel for the appellants has mistaken the relations existing between these contracting companies and Earle. They are endeavoring to claim rights such as they would have had had they simply a vendor’s lien upon goods sold, the title to which had passed to ,the vendee, but which had never been delivered.

The case of Van Brocklen v. Smeallie (140 N. Y. 70) describes the vendor’s lien as arising under these circumstances: “ The vendor of personal property has a lien, or something more than a lien, upon it for the purchase price, while it remains in his possession awaiting delivery, although the right of property has passed to the vendee. * * * The right of the unpaid vendor is deemed sometimes analogous to the pawnee’s right of sale, and sometimes to the right of stoppage in trcunsitu. Whatever it be, it is at least a lien, upon the property sold, for the purchase price so long as it remains undelivered, which lien the vendor may enforce by a sale, and then recover any balance of the contract price unrealized.”

The appellants in this action seek to claim rights such as a person would have who stands in that relation to the transaction. It is a familiar principle that the vendor’s lien is gone the moment the property is delivered. The right of stoppage in trcunsitu is only exercised where the property can be seized before it reaches the consignee.

It is undoubtedly true that where the vendor’s lien exists, the right of the vendor in enforcing the same is three-fold; he may store the property for the buyer and sue for the purchase price ; or he may sell the property as agent for the vendee and recover any deficiency resulting ; or he may keep the property as 1ns own and recover the difference between the contract price and the market price at the time and place of delivery.

None of these remedies apply to the case at bar or to any conditional sale where the title to the property remains in the vendor. And this is the relation which by express contract existed between the defendant companies and Ferdinand P. Earle. They expressly reserved to themselves the title of this property with the right to take'possession of it and to forfeit all payments which had been previously made upon default in the payment of any of these notes. The agreement between the Phoenix Company and Earle was more formal and broad than that between Earle and the Sloane Company.. But so far as this question of title was concerned, they amounted to the same thing — that Earle was to get no title to the -property until he had paid for it, and it was upon this theory that these companies acted when Earle made default. They took possession of the property and sold it as their own. They guaranteed in the bills of sale to the purchaser that they were the owners. Now, if they had understood that the title had passed to Earle, how could they have given such a guaranty ? They understood at that time that they were the owners, not that they had a lien upon the property and were foreclosing that lien. They sold it as owners, having a complete and full title, Earle having no right or interest therein. Under such circumstances, can these defendant companies, after they have asserted the rights given them by the instruments above referred to, which they thought better protected them than a mortgage upon the property, now come into court and be heard to say that all they had was a lien which they foreclosed. It seems to us not. They were not contented with the lien; they wanted to have the right to take this property in default of payment of the last note, even if all the rest had been paid, and of forfeiting all the payments which had previously been made, the Phoenix Company, however, making an agreement that as a certain proportion of the payments were made, Earle should get title to such portion of the furniture as they might select, according to the schedule prices. It is not at all likely that these companies, in case a large portion of these payments had been made, would have insisted upon their strict legal rights, but they had the power so to do, and it depended entirely upon their charity whether, after a default was made in the payment of the last note, Earle should not lose all that he had paid with the exception of the rights reserved to him by the Phcenix Company’s contract.

Now, these companies having taken this property as of their original title, where is there any consideration for the renewal notes which Earle gave ? He got nothing except the mere possession of this furniture during this time; he acquired no title or interest therein, and could not until he had paid the notes. He could not call the companies to account as to the manner in which they sold this property. They might have given it away and it would have made no difference to him, because he had no interest whatever in it, having made default in the payment of the notes, and the parties selling the property having exercised their right under the contract to resume possession. •

This relation between the vendor and vendee on conditional sales is recognized by the legislation of 1893 and 1895. In 1893, by chapter G8A, it was enacted that when articles conditionally sold are retaken by the vendor or his successor in interest, such property sold and retaken shall be retained for thirty days by the person by whom or on whose behalf the same has been so taken, during which time the purchaser or his successor in interest may fulfill such contract of purchase and shall be entitled thereupon to receive such property, and that after the expiration of such time all interest of the pur-' chaser or his successor in interest in the property shall cease. And in 1895, by chapter 523, it was provided that if on the retaking and resale of goods conditionally sold there should be a surplus realized by the vendor, such surplus should be paid to the vendee.

If in conditional sales there is any such thing as a vendor’s lien there was absolutely no necessity for such statutes. The statutes were enacted for the purpose of alleviating hardships, such as would have existed in the case at bar had Earle paid all his notes but one, and then unfortunately failed to pay that note, and these companies had retaken the goods in question, forfeited all payments made by Earle, and sold the goods for much more than was due and pocketed the proceeds. It is urged that had the companies sued on the notes after retaking and selling the property, Earle would simply have had the right to make them account for the value of the property retaken. In other words, he would have had a partial defense by way of counterclaim for the value of the property, and the cases of Payne v. Cutler (13 Wend. 605); Spalding v. Vandercook (2 id. 431); Stacy v. Kemp (97 Mass. 166), are cited to support that proposition. All that these cases decide is that where there is a partial failure of consideration the party may recoup in an action on the promissory note ; and they seem to have no application whatever to a case where the whole original indebtedness is wiped out by the action of the creditor.

It is urged that the case of Brewer v. Ford (54 Hun, 116; 59 id. 17; 126 N. Y. 643) is conclusive authority for the proposition that in this State a conditional vendor has, upon the vendee’s default, unless there be something to the contrary in the contract between the parties, the right to retake the property and apply its proceeds to the payment of the debt, and may thereafter recover any deficiency from the vendee. Upon an examination of this case we fail to find any such question involved. The plaintiff had sold to the defendant’s assignor certain property consisting of machinery, and it was provided in the contract of sale that the machinery should be the property of the plaintiff until paid for. Payment was made by the giving of certain promissory notes. Thereafter certain of the machinery was assigned by the vendee to the defendant assignee and went into his possession ; the plaintiff demanded possession of the same, which was refused and an action of conversion was brought. Upon the trial it was insisted that the action could not be maintained -without a surrender of the notes, only one of which had become due and all of which were outstanding; and it was held that the plaintiff might recover his own property in that action irrespective of where the notes -were. In other words, if Earle had parted with the possession of some of this property, the Phoenix and Sloane Companies could retake it upon his making default in the payment of his notes.

It does not seem necessary to say anything further upon the questions involved on this appeal. As has already been stated, the extension of time or the promise to pay the interest which had accrued upon tlie old notes, and was incorporated in the new, did not and could not form any independent consideration ■— such consideration was based upon the validity of the debt represented by the old notes, and when that consideration failed there was nothing left to which interest could attach.

The judgment should be affirmed, with costs.

Eollett and Parker, JJ., concurred.

Judgment affirmed, with costs.


author: Y an Brunt, P. J.:

text:
    Edward H. Van Ingen and David T. Leahy, Respondents, v. Henry G. Hilton, Appellant.

      Costs — as a condition of opening a defmilt — when payable.

    Where an order is made opening a default and also allowing an answer to be amended, and directing that tlio same, as amended, be served within five days, and this favor is granted upon the payment of certain costs, as to which there is no express provision in the order directing when they shall be paid, the attorney for the defendant lias a right to assume that he is entitled to the time fixed by statute for the payment of costs, and is not in default because he did not pay them within the five days given to him for the service of his amended answer.
    Appeal by tbe defendant, ITenry G. Hilton, from an order of the Supremo Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of May, -1895, striking the action from the calendar of the Circuit Court.

      Jlolliib Tracy, for the appellant.

      William, 11. Arnoux, for the respondents.
   Y an Brunt, P. J.:

The plaintiffs brought this action against the defendant, and an answer was served, but said answer contained no plea of payment.

The case having been placed upon the short cause calendar for trial, an inquest was taken by default and judgment entered. A motion was thereupon made to open the default and for leave to amend the answer, and an order was entered upon such motion on the 8th day of May, 1895, opening the default upon condition that the defendant pay to the plaintiffs costs of the action before notice of trial and the costs of motion, and that the judgment entered stand as security.

The order further provided, in a separate paragraph, that the defendant might amend his answer by setting up therein the plea of payment, jsrovided that said answer, so amended, was served upon the attorneys for the. plaintiffs within five days from the entry of the order.

The order further provided, by another separate paragraph, that the case should be set down for trial on the short cause calendar for May 17, 1895. And the order further provided that, should the defendant fail to comply with any of the terms of the order within the time and in the manner therein provided for, his motion should be denied, with ten dollars costs to the plaintiffs.

On the 13th of May, 1895, a copy of -the amended answer was served, without the payment of the costs, and the answer was returned with a notice of this objection. Two days thereafter a copy of the amended answer was tendered, with the costs, and the same refused. Thereupon, on affidavits submitted by both sides setting forth the facts, the cause was ordered to be stricken from the Circuit calendar.

The single question is, whether the defendant was in default in respect to the payment of costs. It is clear that he was not, by any express provision of the order. It can only be so held by assuming that he was bound to pay the costs within the five days provided for serving the amended answer. But as the order in question does not so limit the time to pay the costs, and as the order was drawn and entered by the respondents’ attorney, it seems difficult to see how the court could impose such a penalty as the denial of the defendant’s right to appear and defend, because of his alleged erroneous construction, of an ambiguous order.

But we cannot find anything in the order which required the payment of these costs within five days. It may be true that it would have been proper to make such a provision. But the order did not so provide, and the attorney for the appellant had a right to rely upon the statutory time in which to pay these costs where ho time was fixed in the order. And certainly he had a right to rely upon this statutory provision until the time fixed for the trial. Such being the case, lie having tendered the costs two days prior to the time fixed for trial, he certainly was in time and was not in default.

The order appealed from should' be reversed, with ten dollars costs and disbursements, and the motion to strike the cause from the calendar denied, with ten dollars costs.

O’Brien, J’., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


text:
    Harry B. Hollins and Others, Plaintiffs, v. Samuel T. Hubbard, Jr., and Others, Defendants.

      Sale of merchandise — consignors draft against the merchandise in the hands of the consignee — ignoranee of the consignee, giving an agreement of delivery to the drawee, that the draft was drawn —knowledge is essential to a consideration — form of a delivery order — estoppel — a representation mnsthe of an existing fact — a promise is not a representation.

    In an action brought to recover damages for a breach of a contract to deliver certain hales of cotton, it appeared that on June 37, 1891, the defendants had in their possession upwards of 800 bales of cotton consigned to them by Charles Green’s Son & Co., of Savanna!), upon which they had a lien for advances made to the consignors; that on that dato a draft, drawn by the consignors against .300 bales of cotton, was presented to the plaintiffs; that on the same day the consignors wrote to the plaintiffs advising them of a draft for §10,000 against 300 bales of cotton, of which 50 bales were sent therewith together with a bill of lading and a certificate of insurance for 150 bales, which the latter stated were to be delivered by the defendants in pursuance of an order inclosed; that this order, addressed to the defendants, directed them to take out a bill of lading, by steamer for Liverpool, for 150 bales of cotton and delivered it to the plaintiffs, such hill of lading to be taken out in the name of the consignors to the order of some clerk, and to be indorsed in blank and with an insurance certificate for the cotton to be delivered to the plaintiffs. It was proved upon the trial of the action that this order was not in the form usual among merchants.
    It further appeared that the plaintiffs sent the order to the defendants, telling them nothing of the purport of the letter by which the consignors advised the plaintiffs that they had drawn against the cotton, and that the defendants, oa receipt of the order, wrote to the plaintiffs that the cotton could not be shipped for Liverpool uutilthe next week, and that at that time they would deliver the bill of lading for 150 bales of cotton, and also the insurance certificate; that the plaintiffs upon receiving this letter paid the draft and immediately after wards the consignors failed; that the defendants thereupon refused to deliver the cotton unless repaid the advances which they had made upon it to Charles Green’s Son & Co.
    The plaintiffs brought this action for the breach of the agreement to deliver.

      ITeld, that there was no consideration for the defendants’ promise lo deliver the bill of lading for the cotton;
    That as they did not know when they promised the cotton for future delivery that the plaintiffs intended to pay the draft of Charles Green’s Son & Co., in reliance upon that promise, such an intention upon the part of the plaintiffs could not be read into the agreement with a view to furnishing a consideration for it, and that the plaintiffs had not estopped themselves from a refusal to deliver the cotton;
    That the delivery order executed by Charles Green's Son & Co. was not drawn in the form which was usual among merchants, and that the reply of the defendants to the plaintiffs upon the receipt of the order was not a representation that the defendants had made any appropriation of 150 bales of cotton or that it had been placed under the control of the plaintiffs;
    That, in order to create an estoppel, there must be a representation as to some existing facts and not merely a promise as to some future act;
    That the letter of the defendants to the plaintiffs was a mere statement that they would at some future time furnish to the plaintiffs evidence that an appropriation of the cotton had been made and that it had been placed under the control of the plaintiffs.
    Motion by the defendants, Samuel T. Hubbard, Jr., and others, for a new trial upon a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit on the 5th day of June, 3895.

      William I). Guthrie and Randolph Hurry, for the motion.

      Julien T. Davies, Gharles .Francis Stone and Herbert Barry, opposed.
   Yan Brunt, P. J.:

On the 27th of June, 1891, the defendants, commission merchants in the city of New York, had in their possession upwards of 800 bales of cotton, which had been consigned to them by Charles Green’s Son & Go., of Savannah, Georgia, and which were held by them subject to a lien for advances made to Charles Green’s Son & Co. The plaintiffs were at the time engaged in business as bankers in the city of New York. On the day above mentioned there was presented to the plaintiffs a bill of exchange for $10,000 drawn by Charles Green’s Son & Co. against 200 bales of cotton. The plaintiffs on the same day received from Charles Green’s Son & Co. a letter dated June 25, 1891, advising the draft as follows :

“ Savannah, 25 June, 1891.

“Messrs. H. B. Hollins & Co., New York:

“Dioar Sirs.— "We beg to advise our draft on you, favor the N ational Bank of Savannah, $10,000, against 200 B | c for Liverpool as per documents enclose, viz.: 50 B | c herewith and B | L & certificate of insurance for 150 B | C to be delivered to you by Messrs. Hubbard, Price & Co. as per order herewith.

“ (Signed) Yours truly,

“ CHARLES GREEN’S SON & OO.”

The accompanying order was as follows :

“ Savannah, 25th June, 1891.

“ Messrs. Hubbard, Prick & Co., New York:

“ Dkar Sirs.— Confirming our telegram of to-day you will kindly take out "B | L by steam to Liverpool for S A M 25, J A L 25, A M O 25, TOM 25, H O X 25, II O N 25 — 150 B Cotton and deliver same to Messrs. II. B. Hollins & Co., N. Y. Please have the B | L taken out in our name to order of some clerk and indorsed in blank. Also, please get insurance certificate from United States Lloyds (50 "Wall street), and deliver same to Messrs. Hollins. The remaining cotton you have of ours we shall keep in N. Y.

“ (Signed) Yours truly,

“ CHARLES GREEN’S SON & CO.”

Upon receipt of these papers the plaintiffs sent the order to the defendants by a messenger boy, but did not send or disclose the purport of the letter above referred to. They subsequently received from the defendants an acknowledgment as follows :

“ Cotton Exchange Building, | “New York, June 27, 1891. >

“ Messrs. H. B. Hollins & Co.,

“ Present:

“ D. Sirs. — 150 B | 0 referred to for account of Messrs. Charles Green’s Son & Co. cannot be shipped till next week, when we will deliver to you B | L and certf. of ins. as requested.

“Yours truly,

“ (Signed) HUBBARD, PRICE & CO.

“D. A. W.”

Upon the receipt of this letter from the defendants, the plaintiff's paid the draft for $10,000, and immediately thereafter Charles Green’s Son & Co. failed. At the time of the writing of the letter above mentioned from the defendants to the plaintiffs the defendants had no knowledge or information that the plaintiffs intended paying any draft of Charles Green’s Son & Co. upon them.

It appears from the evidence that the letter from Charles Green’s Son & Co. to the defendants is not the usual form of delivery order in use among merchants. The defendants having refused to deliver the 150 bales of cotton without being reimbursed for the advances made by them to Charles Green’s Son & Co. thereon, the plaintiffs commenced this action for damages for a breach of the contract to deliver the same. Upon the trial of the action these facts being-established, the court directed a verdict for the plaintiffs, and ordered the exceptions to be heard in the first instance at the General Term.

The plaintiffs claim to recover in this action upon three grounds : First, that there was established an agreement upon the part of the defendants to deliver, founded upon a valuable consideration; second, that even if the defendants had a Hen upou the cotton it was waived; and, third, because the defendants are estopped from questioning the plaintiff's’ right to the cotton in question.

It is difficult to understand how a consideration can be imported into a contract without the knowledge of the contracting- party who is to be bound because of the existence of such consideration. It seems to be essential to the existence of a valid contract that each party should be cognizant of all its terms and features; and that where one party is ignorant of that which is a necessary constituent of the alleged contract, there is no basis upon which an agreement can be founded, because a party cannot agree in respect to a thing of which he is absolutely ignorant.

It would seem, therefore, that the defendants being ignorant of the fact that the plaintiffs intended to make advances upon the strength of the defendants’ promise to ship the cotton in question, such intention upon the part of the plaintiffs cannot be read into the agreement between the parties to this action in order to furnish a consideration.

As to the second ground, namely, the waiver of lien, it seems sufficient to say that if the defendants had contracted to deliver, or had estopped themselves from setting up their lien, the existence of such lien would be no defense.

The only other question winch it is necessary to consider is: Were the defendants estopped from questioning the plaintiffs’ right to the cotton in question ? If they had known of the action that the plaintiffs were about to take upon the strength of their communication, there can be no doubt but that they could not be heard now to question the right of the plaintiffs to claim damages for the non-fulfillment of the promise contained in the letter.

But it is urged upon the part of the plaintiffs that the ignorance of the defendants is no justification; that the promise to deliver was absolute, and that the plaintiffs had a right to act thereon. In support of this proposition the plaintiffs cite the cases of Woodley v. Coventry (2 Hurls. & C. [Exch.] 164), and Knights v. Wiffen (L. R. [5 Q. B.] 660).

The case of Woodley v. Coventry was as follows :

The defendant was a dealer in corn and flour, and sold to one Clarke certain barrels of Hour, but payment was not made for the same. Clarke then applied to the plaintiffs for a loan upon the security of the flour, and gave them the following order :

“ Jack’s Coffee House, Mark Lane, “ August 25, 1862. S

“ Mr. M. Coventry :

“Deliver to Messrs. Woodley and Meadows 130 barrels Elour, Columbia Mills.

218 ditto Diamond ditto

“JOSEPH CLAREEN

The plaintiffs, before making the loan, sent the order to the ¡ defendants’ warehouse by a clerk, who made a full inquiry there whether it was all in order, and received an oral answer, “Yes,” and he thereupon left the order at the warehouse, where it was accepted. The plaintiffs then made the loan to Clarke, which had been requested by the latter. Thereafter Clarke became insolvent and the defendants refused to deliver the flour, upon the ground that plaintiffs stood in no better position than Clarke, and must first pay the purchase moneys owing by the latter. The court held that the defendants’ position was untenable, and that the plaintiffs were entitled to recover.

Pollock, C. B., in his opinion, says: “ The real question was whether the defendants had so conducted themselves that the plaintiffs had a right to say : ‘We call upon you to deliver to us the flour which you say you held on our behalf.’ The question whether the property passed, as between vendor and vendee, never arose. The only question was whether the defendants had acknowledged that they held the flour on behalf of the plaintiffs, for, if so, according to law and justice, they were bound to deliver it or pay the damages.”

The case of Knights v. Wiffen (supra) was as follows: The defendant Wiffen was a produce merchant, and had a large quantity of barley in sacks in his granary adjoining Stanstead Station on the Great Eastern railway. He sold eighty quarters of this barley to one Maris, without specifying any particular portion. Maris did not pay for the barley, however. While the barley remained in the defendant’s granary Maris sold to the plaintiff sixty of the eighty quarters purchased by him, and the plaintiff paid Maris for the same, receiving from him the following delivery order:

“ Station Master,

“ Stanstead:

“Sir.— Deliver Mr. T. Knights 60 quarters of barley to my order. R. W. MARIS, Jun.

“Jwm 2Y, 1868.”

This order was sent by the plaintiff to the station master, who showed it to the defendant, and the latter said: “ All right. When you get the forwarding note I will put the barley on the line.” Subsequently Maris became insolvent, and the defendant refused to deliver the barley, on the ground that he had a lien thereon as unpaid vendor.

The court held that the plaintiff was entitled to judgment, and Mellor, J., in his opinion, said: “Lord Ellenborougu says in Stonard v. Dunkin (2 Campbell, 344): ‘Whatever the rule may be between buyer and seller, it is clear the defendants cannot say to the plaintiff, ‘ the malt is not yours,’ after acknowledging to hold it to his account. By so doing they attorned to him, and I should entirely overset the security of mercantile dealings were I now to suffer them to contest the title.’ ”

Lusir, J\, concurring in the decision, said: “ The defendant, by what he said to the station master, assented to the transfer and induced the plaintiff to believe that he would hold the barley to his order. By so doing he altered the position of the plaintiff towards Maris. The plaintiff might, on a refusal by the defendant to hold for him, have applied to Maris, and he was deprived of the information which would have caused him to have done so. The defendant is, therefore, precluded from denying what he said.”

It will be seen that in each of these cases a delivery order was given and accepted, and that the defendant by his acceptance acknowledged that he had the goods in question and that an appropriation had been made of the proper amount and placed in the possession or under the control of the purchaser; and this was a statement of existing facts upon which the plaintiff relied and acted.

The case at bar is entirely barren of these features. The letter from Charles Green’s Son & Co. to the defendants was not a delivery order in the usual form in use among merchants, and the reply of the defendants to the plaintiffs upon the receipt of that order was not a representation that any appropriation had been made of the proper amount and placed under the control of the plaintiffs ; but it was a mere statement that they would at some future time give the plaintiffs the evidence that such an appropriation had been made and that the property so appropriated had been placed under the control of the plaintiffs.

An examination of the ease of Anderson v. Read (106 N. Y. 333) shows that it is necessary that this element should exist in order that an estoppel should arise. The distinction between that case and the case of Knights v. Wiffen (supra) has been pointed out, and it consista in the fact that in Knights v. Wiffen, by the acceptance of the delivery order, acknowledgment of possession and appropriation and change of ownership were represented.

In the case of Anderson v. Read the facts seem to be substantially as follows: The defendants’ firm had entered into a written ■contract with the firm of Rasin & Oo. for the purchase and sale of 1,000 tons of ammoniated superphosphates. The contract signed by the defendants recited, among other things : “ We have to-day sold to Messrs. R. W. L. Rasin & Co., of Baltimore, Maryland, 1,000 tons,” etc. Rasin & Co. had previously contracted to sell to one De Leon a larger amount of the same general kind of fertilizer, and he (De Leon) agreed to accept the goods purchased of defendants to apply upon his contract. The defendants, with knowledge that Rasin & Co. had made such a contract with De Leon and desired the goods to make delivery under that contract, accepted an ■order drawn on and presented to them by Rasin & Co. requiring them to deliver the goods to DeLeon, and agreed to so deliver them. De Leon paid Rasin & Co. for the 1,000 tons partly in his own notes, which were not paid, and partly by acceptances of third, parties, which Avere paid. Rasin & Co. gave their notes to the defendants for the purchase price of the phosphates, and soon after stopped payment, and failed without paying the notes. The defendants refused to deliver the goods to De Leon unless they were paid the purchase price of the phosphates, offering to surrender the notes received by them. The action was brought by De Leon’s assignee to recover damages for this refusal. The Court of Appeals sustained the right of the defendants to refuse delivery, on the ground that the acceptance of the order of Rasin & Co. in favor of Do Leon did not vest any right of property in him, but simply amounted to an assignment to him of the rights of Rasin & Co. under the contract, and that as they had the right to refuse to deliver to Rasin & Co. unless paid for their goods, after that firm became insolvent, they had the same right as against De Leon, and were not estopped from asserting their vendor’s lien.

The following language in the opinion of the court in that case seems to be applicable to the case at bar : “ If the latter (De Leon) desired accurate information from the vendors in order to bind them as to the meaning in this instance of language which is susceptible of different meanings, lie should have asked them, and if the defendants then made any false representations, or were guilty of acts which were equivalent thereto, they might thereafter be estopped from showing, the truth as against one who, on the faith of such representations or acts, had altered his position to his detriment if the truth should be proved. Here is no such case. When the order is produced by Rasin and accepted by defendants, the implication which accompanies it on these facts is that defendants will deliver it to De Leon under the same circumstances which they would deliver to Rasin & Co., and if circumstances should arise prior to the delivery which would absolve the defendants from their obligation to deliver to Rasin & Co. by reason of their insolvency, the same right would remain with defendants when a delivery should be demanded by De Leon. * * *

“ This case is quite as strong for the defendant as that of Farmeloe v. Bain (1 C. P. Div. 445). In that case defendants sold 100 tons of zinc to B. & Co., and gave them an order, in which defendants undertook to deliver to their order, indorsed thereon, 25 tons, etc., 1 off your contract of this elate] and signed it. Upon the faith •of this document the plaintiffs bought of B. Co., and paid for, 50 tons of zinc, and B. & Co. having failed without having paid the defendants, they refused to deliver the zinc to the plaintiffs. The jury found that the defendants, in signing the order, intended the same as a representation to all persons to whom it should be shown that the goods therein mentioned were the property of B. & Co. The court, however, held that this document, thus signed by defendants, was not a known document among merchants, and was to be looked at as any other instrument in writing, and as thus looked at it contained no representation of any fact, and the plaintiffs had no right to rely upon it as such a representation, and, consequently, could not claim an estoppel.

“ In the documents before the court in this case there are no representations of any fact which the defendants now seek to deny. They simply claim the right to refuse to deliver to an insolvent vendee or his assignee, goods which they had contracted to sell and deliver to one whom they supposed solvent when the contract was made. They deny no fact stated in their writings, and they take no new or different position, and claim no other or further right than they have at all times had.”

Applying the principles enunciated in this case and the cases therein cited, it would seem that in order to create an estoppel, there must be a representation of an existing fact, and not a promise in respect to some future act. It follows, therefore, that there being-no contract and no estoppel, no right to recover exists in the plaintiffs.

The exceptions should be sustained and a new trial granted, with costs of this motion to the defendants to abide the event.

Parker and Patterson, JJ\, concurred.

Exceptions sustained and new trial granted, with costs of this motion to the defendants to abide event.


author: Per Curiam : Ingraham, J.:

text:
    Fanny M. Bedlow, Respondent, v. Sarah A. Stillwell, Appellant, Impleaded with Henry Bedlow and Others, Defendants.

      Dower in a pier — dower is acquired in any estate of inheritance recoverable in ejectment.

    An action of ejectment will not lie for an easement or for a right in gross. ■Where, however, a husband has during coverture a legal estate in a pier, which is descendible to his heirs, his widow is entitled to dower therein.
    In an action brought to recover dower it appeared that, in 1806, the city of New York granted to Henry Rutgers, as abutting owner, a piece of land on the Bast river, lying between high and low-water mark; that Rutgers agreed to build a street seventy feet tvide upon the south side of the grant, to be known as Front street; that he did so and it became a public street; that he leased the premises; that his lessees, with the consent of the city, erected a pier on the south side of the street extending southerly into the Bast river and that subsequently the plaintiff’s husband, who was an heir or devisee of Rutgers, sold his interest in the upland west of Front street and there remained to him only his interest in the land on the east side of Front street and his interest in the wharf in question.
    It appeared that in a former action, brought by the husband of the plaintiff and his co-tenants, as heirs at law and devises of Henry Rutgers to recover possession of tills pier, the Court of Appeals held that Rutgers owned the fee of the street subject to the public use, and that when his tenants built the pier, with the permission of the city, it became appurtenant to his fee in the street and that the plaintiffs in that action could maintain ejectment for the recovery of their interest in the pier.

      Held, that the Court of Appeals in effect decided that the plaintiff’s husband had an estate of inheritance in the pier, and that consequently the plaintiff was entitled to dower therein.

      Appeal by tlie defendant, Sarali A. Stillwell, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of February, 1894, upon the decision of the court rendered after a trial at the New York Circuit before the court without a jury, and also from a final judgment entered in said clerk’s office on the 14th day of August, 1894, upon the report of a referee.

      Georye W. Stephens, for the appellant.

      William A. Duer, for the respondent.
   Per Curiam :

In Bedlow v. N. Y. Floating Dry Dock Co. (112 N. Y. 263), an action brought by the husband of the plaintiff to recover possession of the property in which dower is sought to be recovered by this action, it was held that he had a legal estate in ■ the pier which could be recovered in an action of ejectment. It is a familiar principle of law that an action of ejectment will not lie for an easement or a right in gross. The case cited necessarily holds that the plaintiff’s husband had a legal estate in this pier which, had lie-remained its owner until his death, would have descended to his heirs. A widow is entitled to dower in an estate of inheritance of which her husband was seized during marriage. Every estate in lands, except such as are determined by the death of the holder, leases for years, and estates for the life of another, are estates of inheritance and descend to the heirs upon the death of the owner-thereof intestate, subject to the widow’s right of dower therein. (1 R. S. 754, § 27.) Under the facts found, which are supported by the evidence, and the decision above cited, the plaintiff’s husband had an estate of inheritance in the pier, and she is entitled to dower therein, which is shown by the opinion of the learned trial justice-which covers the case, and the judgment should be affirmed on that opinion, with costs.

Present — Yan Brunt, P. L, Follett and Parker, JJ.

Judgment affirmed, with costs.

The opinion of the trial justice was as follows :

Ingraham, J.:

This action is brought by plaintiff to recover dower in an interest in a certain dock in the city of New York, of which it is claimed her husband died seized. It appears in the year 1800 Ilenry Rutgers was the owner of certain premises abutting on the East river at the foot of Montgomery street in the city of New York, and on the twenty-eighth of November in that year the Mayor, etc., of the city of New York granted to said Rutgers a piece of land between high and low-water mark, abutting upon the property owned by him, which piece of land was particularly described upon the plan or map which was specifically referred to in said grant. By a separate provision in the grant the said Rutgers agreed to build on the south side of the premises conveyed, a good, sufficient and firm wharf, pier or street of seventy feet in breadth, continuous to the East river or harbor of said city, also distinguished on said map as Front street. Rutgers complied with his covenant and built the street, which thereby became a public street. He leased said premises, and subsequently the lessees, with the consent of the municipal corporation, erected a pier extending from the south side of said street into the East river. The upland upon the west of _ Front street was subsequently sold by plaintiff’s husband and his co-tenants, in which conveyances plaintiff joined, leaving the only premises owned by the plaintiff’s husband, in which plaintiff could claim that she had a right of dower, the right to the use of on the east side of Front street, and to this wharf so erected by the tenants under the lease made to them by Rutgers. Alfred Bedlow, plaintiff’s husband, was the owner of one undivided sixth interest in this wharf right, as devisee or heir at law of the said Rutgers, and the question is whether or not this was an interest to which the plaintiff’s right of dower attached.

By the Revised Statutes (1 R. S. 740, § 1) it is provided that “A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage.” And “ the terms real estate ’ and £ lands ’ as used in this chapter shall be construed as co-extensive in meaning with lands, tenements and hereditaments.” (1 R. S. 750, § 10.)

The terms “ lands, tenements and hereditaments ” are generally construed to include all lands and interest in lands, corporeal or incorporeal, wliicli would descend to an heir at law, and it would seem to follow that if this interest of plaintiff’s husband was an interest in land of which he was seized, and which would descend to his heir at law, that plaintiff’s right of dower attached.

The interest that the plaintiff had in this pier has, I think, been settled by the Coitrt of Appeals in the case of Bedlow v. The New York Floating Dry Dock Company (112 N. Y. 263). That was an action brought by plaintiff’s husband with his co-tenants to recover the possession of this pier, and it was decided that the plaintiff and his co-tenants were entitled to such possession. In the opinion deciding this question, the interest that the plaintiffs had vras quite exhaustively discussed. It was there held that the deed from the city to Rutgers gave to the grantee all the land between high and low-water mark, necessary to establish a street and wharf in the harbor. That the terms of the grant expressly contained land lying between high and low-water mark, extending from the grantee’s land on the north to the harbor on the south, and that the plain purpose of the grant was, among other things, to enable the grantee to construct a wharf on the land granted, accessible by water at all times from such harbor, and which should form the extreme southerly line of the city at that place. It was also held that this light to build and maintain a wharf would carry with it the right to collect wharfage and the right to unobstructed access to the wharf over the water of the harbor, and that Rutgers thereby acquired the right not only to the use and enjoyment of the premises conveyed, and of all easements connected therewith, but also the right to make all such erections and improvements thereon and additions thereto as should contribute to his profitable enjoyment; that he could lawfully make new erections upon the land conveyed or additions to those already there; that he could also extend and improve the wharf so as to increase its facilities; to build a pier attached thereto, provided that they obtain the consent of the city therefor, and that the building of the wharf or pier by Rutgers’ tenants inured to Rutgers’ benefit, and upon the determination of the tenancy, Rutgers was vested with the title of any structure remaining on the demised premises as a fixture annexed to the freehold. It follows from this that Rutgers was the owner of the fee of the street built by him upon his lands, under the covenant contained in the grant before mentioned, which, of course, was subject to the public use.

He, however, owned something more than the bare naked fee of a piece of land dedicated to the public use, as he was also entitled to the wharfage of the wharf or pier on the south side of the street, and that right was one that the city could not deprive him of without compensation. And upon the building of the wharf by his tenant, with permission of the city, that wharf became appurtenant to his fee of the street, being a mere extension of the right of wharfage that he had upon the wharf erected on the south side of the street. And I think it clearly follows, from the whole opinion of the Court of Appeals in the case before cited, that the interest of the plaiutiif in this property was clearly within the statutory definition of lands, and that the plaintiff’s husband was seized of and in possessession of one-sixth thereof.

The elaborate brief presented by counsel for the defendants would appear to be rather in the nature of an application to review the decision of the Court of Appeals in the case before cited, than to apply the principle established by that decision in the question here to be determined.

I think it clearly follows, applying the principles established by the Court of Appeals in the Bedlow case, that plaintiff is entitled to dower in the one-sixth interest of her husband in the property in question, and that she is entitled to judgment accordingly, the decision and judgment to be settled on notice.


author: Yan Brunt, P. J.: Follett, J.

text:
    The People of the State of New York, Plaintiff, v. Commercial Alliance Life Insurance Company, Defendant. In the Matter of the Application of Oliver P. Buel and Others, Composing the Firm of Buel, Toucey & Whiting, for the Payment of Their Claim. William T. Gilbert, as Receiver, etc., Appellant; Buel, Toucey & Whiting, Respondents.

      Insolvent corporations — attorneys employed by officers acting in bad faith in opposing an application for the receiver — they have no claim on the fund.

    Where the officers of a eorporation, wlioknowit to be insolvent, oppose an application for the appointment of a receiver, and, in bad faith, employ attorneys to resist the application, the court cannot allow anything to be paid from the funds of the corporation to compensate such attorneys.
    Where the application for the appointment of a receiver of a corporation is resisted in bad faith, the fact that the attorneys themselves rendered their services in good faith will not avail them.
    Follett, J., dissenting.
    Appeal by William T. Gilbert, as receiver of the Commercial Alliance Life Insurance Company, from an. order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of .August, 1895, directing him to pay Buel, Toucey & Whiting the sum of $500 for their services to the defendant company rendered in the action.

      W. /S. Maddofy for the appellant.

      Oliver P. Buel, for the respondents.
   Yan Brunt, P. J.:

The case of Barnes v. Newcomb (89 N. Y. 108) may possibly be an authority for the proposition that where an application is made for the appointment of a receiver of a corporation upon the ground of its insolvency, and the company employs counsel and opposes such ajiplication in good faith and with a conviction of the solvency of the company and its right to conduct its own business, and it has probable cause and reasonable ground for such opposition, the court may in administering the fund allow the reasonable expenses incurred in attempting to repel the attack upon the corporation which its officers regarded as unfounded. But where, as in the case at bar, the officers of the company undoubtedly knew that the company was insolvent, and acted in bad faith, there seems to be no possible ground upon which indemnity for expenses incurred can be allowed.

It has been suggested that as the attorneys in the case at bar acted in good faith, the bad faith of their client cannot be imputed to them. But the authority quoted clearly only allows indemnity for reasonable expenses which the corporation has incurred in the conduct of an opposition made in good faith. It certainly would be a strange proposition to hold that, although the officers of a corporation had acted in bad faith, yet that the agents whom they employed should be able to procure such an allowance in their behalf and a preference over the other creditors of the corporation.

We think, under the circumstances of the case at bar, that ím allowance can be made to the attorneys, notwithstanding that they acted in good faith, because of the want of good faith upon the part of the officers of the corporation which employed them.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Parker, J'., concurred.

Follett, J.

(dissenting):

The bad faith of the officers of the defendant corporation cannot be imputed to the corporation, its shareholders, its policyholders and creditors, whom the attorneys represented, and whose rights it was material to inquire into and protect. The attorneys had no knowledge that the corporation was insolvent, and were ignorant of the facts known to its officers, and their bad faith cannot be imputed to counsel. The officers of the defendant corporation did not employ the attorneys to defend their own interests alone, but to defend the interests of the corporation and all persons represented by it.

The order should be affirmed, with costs.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.