author: By the Court.—Ingraham., J.

text:
    OCEANA A. BANCROFT, Appellant v. THE HOME BENEFIT ASSOCIATION OF NEW YORK, Respondent.

      Insurance Policies—Clauses constituting a warranty against a hurt or wound—Hurts or wounds constituting a breach of the warranty—Breach ' of warranty avoids the Policy.

    In the application of the assured for a certificate of membership in defendant’s association (in effect for a policy of insurance) for the benefit of his wife (the plaintiff) it was agreed by the assured that “Any untrue or fraudulent statements made by me, or to any medical examiner for said association, or any concealment of facts by me shall forfeit and cancel all rights to any benefit under the above named contract.”—To the question put to him by the medical examiner for the association “ Have you received any wound, hurt or serious injury ? ” the assured answered “No.”—Upon this application and the examiner’s report the certificate, of membership sued on was issued. The certificate provided “ In consideration of the representations and agreements made in the application herefor, and which is a part of this contract, and of each of the statements made therein, which, whether written by his own hand or not, every person accepting or acquiring any interest in this contract hereby adopts as his own, admits to be material, and warrants to be full and true, and to be the only statements upon which this contract is made,” etc.

      Held, that the above clauses warranted the truth of the above answers to the medical examiner, and that any substantial deviation from its truth constituted a breach of the warrantee, and rendered the certficate of membership (i. e. policy) void.
    On the trial it appeared that about a year prior to the making of the application, the assured received a blow from a foil on the throat; a few seconds afterwards he raised a little blood; the force of the blow produced a wound or hurt on the inside of the windpipe; shortly after he was confined to his bed for the greater part of three days, during which time he was attended by a physician.

      Held sufficient evidence to sustain a finding that the assured had, before the making of the application, received a serious bodily injury; that such injury so found to have been received, constituted a breach of the warranty, and that the plaintiff could not recover.
    Before Freedman and Ingraham, JJ.

      Decided February 14, 1887.
    Appeal from judgment entered on a trial before the court without a jury.
    The facts sufficiently appear in the opinion.

      JE. L. Fancher, attorney, and of counsel for appellant, argued:—
    I. It was a year and some months after the foil episode that Bancroft made the application. During all those fourteen months no effects whatever were felt, and the foil episode had doubtless passed from his memory. The effects had passed away after a few days. Surely he was justified in stating, on the 28th April, 1885, that “to the best of his knowledge and belief ” he had not received any hurt, wound or serious bodily injury. And would not any jury so decide on the facts of this case ? If the effects are temporary, the injury is not serious. That every trivial hurt or wound must be remembered and described, on such an application, is unreasonable and absurd. It is abundantly decided (see cases below) that a reasonable, and not a strict literal construction, must be given to the words, even though they are made by the policy a warranty.
    II. The court, in similar cases, avoids a construction which is not reasonable, and avoids the strict literal sense of the words, as a warranty, holding that a strict warranty is not intended, where the trouble asserted has been cured, and did not affect the duration of life. Among other decisions to this effect see the following authorities: Insurance Co. v. Foley, 105 U. 3. 350; Ins. Co. v. Wilkinson, 13 Wallace, 222; Moreton v. American Life Insurance Co., 111 U. S. 135; Conn. Life Ins. Co. v. Union Trust Co., 112 U. S., 250; Alton Life Ins. Co. v. France, 94 U. S. 561; Fitch v. American Pop. Life Ins. Co., 59 N. Y. 557; Cushman v. U. S. Life Ins. Co., 70 N. Y. 72; Hybie v. The Guardian Mutual Life Ins. Co., 53 N. Y. 603.

      Hal Bell, attorney and Henry W. Johnson oí counsel for respondent, argued.—
    I. The certificate sued upon declares that the representations and agreements contained in the application for the certificate are a part of the contract between the parties. Hence the certificate and application are to be read together as one instrument: Worsly v. Wood, 6 T. R. 710; Mut. B. Life Ins. Co. v. Miller, 2 Ins. L. J. 109 ; Jennings v. Chenango Co. Mut. Ins. Co., 5 Denio, 75; Patch v. Phoenix M. L. Ins. Co., 44 Vt. 481; Braunstein v. Accidental Death Ins. Co., 2 Bigelow, 610; Douglas v. Knick’r Life Ins. Co., 83 N. Y. 503; Bliss on Life Insurance, § 58.
    II. Thus read, there is no room for doubt that the contract sued upon contains an absolute and unqualified warranty of the truth of the answers given to the questions contained in the application, and that the contract cannot be enforced if those answers were in any respect untrue: Ætna Life Ins. Co. v. France, 1 Otto, 510; Jeffries v. Life Ins. Co., 22 Wall. 47; Foote v. Ætna Life Ins. Co., 61 N. Y. 571; Eddington v. The Same, 77 Id. 564; The Same v. The Same, 100 Id. 586.
    III. That the warranty contained in the application and certificates was broken, was distinctly found by the trial judge, and cannot be disputed upon the evidence.
   By the Court.—Ingraham., J.

The certificate ‘of membership in defendant’s association sued on, which is in effect a policy of insurance, was issued on the application of the assured; in which application it was agreed by said assured that “ any untrue or fraudulent statement made by me, or to any medical examiner for said association, or any concealment of facts by me, shall forfeit and cancel all rights to any benefit under the above named contract,” which agreement was signed by the assured; and the said certificate of membership issued upon the application, provides that “ in consideration of the representations and agreements made in the application herefor, and which is a part of this contract, and of each of the statements made therein which, whether written by his own hand or not, every person accepting or acquiring any interest in this contract hereby adopts as his own, and admits to be material, and warrants to be full and true and to be the only statements upon which this contract is made, etc.”

It is clear that, by the application and policy, the assured warranted the truth of the several answers, and that compliance with such warranty was a condition of the. validity of the contract of insurance, and that any substantial deviation from the truth in the answers given was material to the risk, and constituted a breach of the terms of the contract, rendering the policy based upon such answers, void.

This principle is well settled in this state, and has been lately re-affirmed by the Court of Appeals in the case of Dwight v. Germania Life Ins. Co., reported in 103 N. Y. 341.

In the application for the insurance, the assured was asked: Have you received any wound, hurt or serious bodily injury ? ” To which he answered, “ No.” The court found as facts: Fifth; prior to the making and delivery of the said application, the said John S. Bancroft had received a wound. Sixth; that, prior to the making and delivery of the said application, the said John S. Bancroft had received a hurt. Seventh; that, prior to the making and delivery of the said application, the said John S. Bancroft had received a serious bodily injury.” And the only question presented is whether there was evidence to sustain these findings.

It appeared, and the court found, that, a little over a year prior to the making of the application, the said Bancroft, while engaged in fencing, received a blow from a foil on the throat in the neighborhod of, or upon, the Adam’s apple; that, in a few seconds thereafter, he raised a little blood; that the force of said blow produced an abrasion, wound or hurt on the inside of the windpipe, and that, shortly thereafter, the said John S. Bancroft was confined to his bed during the whole, or the greater part, of three days, and, during that time, was attended by a physician.

A consideration of the evidence satisfies us that there was sufficient to sustain these findings. The injury received was followed by the spitting of blood, and by it the assured was confined to his bed for two or three days. Upon no reasonable interpretation of the language used could it be held that this was not. a wound or a hurt.

It is not necessary for us to hold that, if the court on the evidence had found for the plaintiff, there would not be evidence to sustain such a finding.

There is sufficient evidence to sustain the finding made.

As was said by the Court of Appeals, in Dwight v. Germania Life Ins. Co. (supra): “Parties to an insurance contract have the right to insert such lawful stipulations and conditions therein as they may mutually agree upon, or which they may consider necessary and proper to protect their interests, and which when made' must be construed and enforced, like all other contracts, according to the express understanding and intent of the parties making them, If the insurance policy, in plain and unambiguous language, makes the observance of an apparently immaterial requirement a eondition of a valid contract, neither courts nor juries have the right to disregard it, or construct, by implication or otherwise, a new contract in the place of that deliberately made by the parties.”

Applying this rule to the facts as found by the court, the defendant is entitled to judgment. Judgment must therefore be affirmed with costs.

Freedman, J., concurred.


source: Caselaw Access Project

author: Bt the Court.—Ingraham, J.

license: Public Domain

text:
    MARY NOONAN, Plaintiff, v. CHRISTIAN BRENNEMANN, Defendant.

      Wills, fee descending to heirs at law notwithstanding—Bivesting the fee and vesting it in others, what will and what will not—Unless fee conveyed, good title cannot be given.

    Where a will simply directs the executor to sell the testator’s real estate, and then gives directions as to the disposition of the proceeds, among which are directions that certain portions shall be held on certain trusts, the fee descends to the heirs at law, subject to the execution of the power to sell; and, in order to give a good title, that fee must be in some way conveyed.
    It may be conveyed through the execution of the power of sale, or through a deed given on a sale under a judgment in an action to foreclose a mortgage, subject to which the land descended, the heirs at law being parties to the action.
    It will not be conveyed by a deed, given on such a foreclosure sale, when the heirs at law are not parties to the action.
    Before Sedgwick, Cb. J., and Ingraham, J.

      Decided February 14, 1887.
    Exceptions by defendant, heard at General Term.
    This action was brought to recover the sum of money paid by plaintiff to the defendant upon the execution of a contract for the sale to and purchase by the plaintiff of certain real estate, pursuant to the terms of the contract, and also to recover the expenses of examination of the title.
    The question litigated was as to whether the defendant had, or had not, tendered to plaintiff a good title.
    The defendant’s source of title was under a referee’s deed given to on a sale under a judgment of foreclosure and sale. The foreclosure action was brought to foreclose a mortgage made by Francis Meehin and wife to Julius L. Hitchcock. The parties to the action were Julius L. Hitchcock, plaintiff, against Margaret M, Meehin individually and as executrix of the will of Francis Meehin, deceased. Francis Meehin in his lifetime made his will which is as follows:
    “ In the name of God, etc., Amen, I, Francis Meehin, of the city of New York, being of sound mind and memory, and considering the uncertainty of this life, do therefore make, ordain, publish and declare this to be my last will and testament, that is to say, I direct my executrix, hereinafter mentioned, to sell and dispose of, at public auction or private sale, all of my real and personal estate, that I may own at the time of my death, as soon as possible, and fully empower and authorize my said executrix, hereinafter named, to give good and sufficient deed or deeds therefor, and to execute all papers necessary to carry out the provisions of said sale or sales. I further direct and authorize my said executrix, hereinafter named, to pay out of the proceeds arising from said sale my funeral expenses and all other just debts, including all mortgages or liens on my real estate, assessments, taxes and other expenses, and to pay over the net proceeds arising from such sale or sales for the uses and purposes hereinafter mentioned and set forth. I give and devise the net proceeds of one half of the money arising from such sale or sales of my real and personal estate, after payment of my debts and liens thereon as aforesaid, to my beloved wife, Margaret Mary Meehin, in lieu of dower in my said estate, real and personal, should she elect to receive the same, to have and to hold the same forever.
    “ I give and devise the other one half of the net proceeds of money arising from such sale or sales of my real and personal estate, after payment of my debts and liens thereon as aforesaid, to my beloved wife, Margaret Mary Meehin, my sole executrix, to be hereinafter appointed, and to be held by her in trust, nevertheless, for the sole benefit of my beloved grandson, John Francis Morris, with special instructions to invest the same by bond and mortgage on good and sufficient real estate in the city of New York, and the net income arising therefrom to be expended for the maintenance, support and education of my said grandson until he becomes of the age of twenty-one years; and, after my said grandson becomes of age, I direct my said executrix, or her successor in office legally appointed, to pay and to make over the whole of the net amount arising from said sale as aforesaid to my beloved grandson, John Francis Morris, and fully authorize her to execute all necessary papers for such purpose. And I hereby commit the guardianship of my said grandson, John Francis Morris, until he shall attain the age of twenty-one years, unto my said wife, my said executrix, so long as she remains my widow, and, in case of her death or remarriage, to her successor in office legally appointed. In case of the death of my said grandson, John Francis Morris, before he shall arrive at the full age of twenty-one years, I will and direct my executrix, hereinafter appointed, to invest one-half thereof for the sole benefit of my granddaughter, Mary Ann Meehin, daughter of my son, Joseph C. Meehin, and the income thereof paid for her benefit until she become of full age, when the principal sum thereof shall be paid to her by my said executrix or her successor in office.
    “I will and direct that the other one half thereof shall be paid to my brother, Patrick Meehin, residing in Ireland, within one year after the death of my said grandson, John Francis Morris.
    “ I nominate and appoint my beloved wife, Margaret Mary Meehin, sole executrix of this my last will and testament, and fully authorize and empower her with full and' ample authority to carry out the provisions of this, my. last will and testament, hereby revoking all former wills by me made.”
    Before the commencement of the foreclosure action, he died leaving his said will, which was duly admitted to probate. He left, him surviving, his widow, Margaret M., a son, Joseph C., and a grandson, John Francis Morris, the son of a deceased daughter. He also left a granddaughter, Mary Ann Meehin (mentioned in said will), the daughter of said Joseph C. Meehin, and a brother, Patrick Meehin (mentioned in said will). These persons were not made parties to the foreclosure action, although they were all then living. At the time of the death of Francis Meehin, Patrick was and has since continued to be a non-resident alien. At the time of the foreclosure action, John Francis Morris and Mary Ann Meehin were infants. The widow never executed the power of sale.
    The evidence established the amount of plaintiff’s damages at $809.35.
    The defendant moved to dismiss the complaint, which motion was denied, and defendant excepted.
    The court then directed a verdict for plaintiff for $809.35, to which direction defendant excepted. A verdict was rendered according. Defendant’s exceptions were ordered to be heard in the first instance at the General Term.

      Strong & Cadwalader, attorneys, and John L. Cadwalader, of counsel for plaintiff, on the questions contained in the opinion argued:
    I. The estate in the land on Meehin’s death descended to his heirs at law, the executrix under the will taking a general power of sale in trust and nothing more. Revised Statutes (7th ed., vol. 3, p. 2181, sec. 56); Moncrief v. Ross, 50 N. Y. R. 431; and Prentice v. Janssen, 79 Ib. 478, and cases cited.
    II. Again, apart from the necessity of making the heirs at law parties in whom the fee vested, the legatees, trustees and cestuis que trust having interests in the lands before the sale proportionate to their interest in the surplus, must be made parties. The widow, individually and as executrix only, was a party.
    (1.) The provisions of the will, most favorably construed for the defendant, constitute a conversion of the land into personalty and the gift of the net proceeds, subject, however, to a reconversion.
    Notwithstanding the doctrine of equitable conversion, the fee is somewhere—and in the heir at law.
    (2.) As to the legatees. In Forster v. Civill, 20 Hun, 282, where a testator bequeathed nine legacies which were charged on the land, and the remainder of his property to his wife; held, that the legatees were necessary defendants in foreclosure.
    III. The case of Lockman v. Reilly, 95 N. Y. R. 64, is in no respect adverse to these views. It really confirms them.

      Edgar Whitlock, attorney, and of counsel for defendant, on the questions considered in the opinion, argued.—
    I. The heirs at law of Francis Meehin, deceased, were not necessary parties defendant to the foreclosure suit. The terms of the will of Francis Meehin, deceased, worked an equitable conversion of the testator’s real property into personalty, out and out, or as of the time of his death, and for all the purposes of determining the rights of his heirs at law, and of the parties taking under his will, the real estate, even before any sale by the executrix, must be considered as personalty. Stagg v. Jackson, 1 N. Y. 206; Moncrief v. Ross, 50 Ib. 431 ; Horton v. McCoy, 47 Ib. 21; Fisher v. Banta, 66 Ib.
      468, 476, 477; Lent v. Howard, 89 Ib. 169, 177; Robert v. Corning, 89 Ib. 225, 239.
    H. It.has been claimed on the part of the plaintiff, and at first blush it would seem so to be, that, as the heirs at law became seized of the legal title, and, as incident thereto, with the right of possession, they were therefore necessary parties.
    This is ordinarily so because, in almost every case, the holder of the fee has an interest in the equity of redemption. It is for that reason that the heir is a necessary party defendant, and not merely because he is seized of the legal title. If a case can arise where the heir at law, while seized of the naked, legal fee, has no interest in the equity of redemption, then he will not be a necessary party defendant.
    Such a case has arisen here.
    Let us suppose that the heirs at law had been made parties defendant, and the suit had been in all respects regular, and resulted in a surplus, would the heirs have been entitled to take possession of said surplus moneys ?
    We answer, No. The point arrived at by the testator would have been accomplished, to wit: the actual conversion of the realty into personalty, and the executrix named in the will should then have received the surplus. To hold otherwise would be not only to oppose the settled wish of the testator, but possibly to defeat his intention and the ends of justice.. No custodian of the money proceeds should be allowed other than the one he named, and yet this would happen were the above question answered in the affirmative.. What assurance would the legatees under the will ever have of getting their money, if it once passed into the hands of the heirs at law ? They could recover judgment therefor, surely, but with how little certainty of satisfying that judgment need not be described.
    While the real estate remained unconverted there could be no danger from the heirs at law, because their hands would be tied through their lack of power to assign or transfer the title.
    There is still more formidable objection to the payment of the surplus moneys to the heirs at law.
    If such payment were made, it would necessarily be on the theory that the character of the realty attached to the surplus mone}', and that as the legal title and possession of the realty belonged to the heirs at law, so also the legal title and possession of the surplus moneys vested in them. But, if once paid to them, how could it ever be taken from them ? Nothing could thereafter be done by the executrix to work a conversion of it into personalty, and the result would be that the very legal doctrine which turned the surplus moneys over to the heirs at law would enable them to retain such surplus forever.
    If, then, the heirs at law are not entitled to take the surplus moneys, or have any part or share therein or thereto, it follows that they could not be necessary parties defendant in the suit, because the surplus moneys represent the equity of redemption.
    III. Again: If the heir at law, because of his seizin of the legal fee merely, was interested in the equity of redemption, then a judgmentrcreditor of the heir would also be interested in the equity of redemption, and so on ad infinitum. The death of the heir would still further pass the legal title, and, therefore, an interest in the equity of redemption would pass to the devisees under his will, or to his heirs at law in case of intestacy,, liable to be incumbered by their j udgment-creditors, etc.
    To hold such a doctrine Avould be preposterous, and we are thus brought to the conclusion that being seized of a legal title is not in itself sufficient, but that the legal title must, in some way, be beneficial to the holder.
    Now the title of the heirs at law in the case at bar was not and never could, in any event, become a beneficial one, because of the equitable conversion from realty into personalty worked by the testator’s will.
    Not one cent could the heirs as heirs ever have realized from the property. All the rents which might have been collected by them they must have accounted for to the executrix. Their title was not one which they could have assigned or transferred. They had no such interest in the mortgaged premises as could be protected and rendered effectual by a redemption of the mortgage. If they had procured an assignment of the mortgage they would not have been strengthened in their position; their title as heirs at law would have been no better. They would simply have occupied a two-fold position, one as heirs at law, and the other as mortgagees.
    . They could not, therefore, have compelled such an assignment, and so been subrogated to the rights of the mortgagees, because their position did not entitle them to the benefit of the doctrine of subrogation; to hold that it did would be equivalent to enabling them thus to defeat the rights of the legatees under the will.
    IY. The heirs at law were in no way necessary parties to any proceedings which the executrix might take for the purpose of selling the property.
    As the executrix was brought in and served in the foreclosure action, the judgment and sale therein included and cut off her power of sale, and carried to the purchaser all the title which her deed would have given.
    The effect of the foreclosure sale was, therefore, as extensive and as far-reaching as could have been a sale by the executrix on the .familiar principle that “ the greater includes the less.”
    Therefore the foreclosure sale worked the actual conversion of realty into personalty as thoroughly as would a sale by the executrix; and. if the heirs at law were not necessary parties to a sale by the executrix, neither were they necessary parties to the foreclosure sale, which worked the same result.
    V. The issue involved in the first objection has been passed upon in a case in which precisely the same question was involved, and the decision therein squarely sustains the contention of the defendant herein. Graham v. Livingston, 7 Hun, 11.
   Bt the Court.—Ingraham, J.

It is clear that, under the will of Francis Meehin, the fee of the real estate of the testator vested in his heirs at law subject to the power of sale contained in the will. Lent v. Howard, 89 N. Y. 177.

Before the defendant could acquire a valid title to said property in fee, he must in some way acquire the fee vested in the heirs at law of Meehin. The action to foreclose the mortgage which was a lien upon the property at the death of the testator, did not divest the heirs at law of the fee vested in them; they were not parties to that action.

The deed of the referee under the judgment in the action, conveyed the estate of the parties to the action, but did not affect the property or estate of those not parties. The legal title is still vested in the heirs at law. That the testator intended to convert the real estate into personalty, does not affect the method by which the property is to be converted. As between the executrix and the trustee and the beneficiaries, the proceeds of the land when sold would be personal and not real property; but the fee of the land vested in the heirs, and it must in some way be conveyed to the defendant to enable him to comply with his contract. That could be done by an execution of a power of sale because the fee vested in the heirs at law, was subject to the execution of that power, but such power of sale was not executed. It could also be done by the foreclosure of the mortgage; but, as a sale under the judgment in the action to foreclose would only affect the title of the parties to the action, in order to divest the heirs at law of the fee vested in them, they must be parties to such action.

It is unnecessary to determine what interest in the property defendant acquired by the deed from the referee in the foreclosure action. Plaintiff was not bound to accept an equitable title, and, as the fee of the premises was not vested in the defendant, his conveyance was not a compliance with the contract.

The exceptions should, therefore, be overruled, and judgment ordered for plaintiff on the verdict with costs.

Sedgwick, Ch. J., concurred.


author: Per Curiam.

text:
    AARON D. FARMER et al., Respondents, v. WILLIAM P. SHANNON, Appellant.

      Obstructing and delaying the recovery of judgment, and in the meantime collusively suffering judgments to be recovered against the defendant, under executions on which all the defendant's property was sold so that the obstructed judgment ichen recovered was uncollectible, gives no cause of action, conspiracy not being charged.

    The trial court found that the defendant being president of a corporation, made and swore to an affidavit in an action against it by the plaintiffs which he knew to be essentially untrue, and on it obtained an order to show cause why a bill of particulars should not be furnished with a stay of proceedings and an extension of time to answer, and afterwards interposed an answer also sworn to by him, which he knew to be false, that those acts of the defendant were done with intent to hinder and delay plaintiffs in the collection pf their claim against the corporation; that while the plaintiffs’ proceedings were thus obstructed, he, the defendant, by collusive arrangements with others, and in a great part upon fictitious claims, procured and suffered the recovery of judgments against the corporation and the issuing of executions thereon, under which all the property of the corporation was sold and disposed of before the plaintiffs could obtain their judgment, so that when the plaintiffs did recover judgment, it was uncollectible and worthless although it could have been collected if the plaintiffs had not been obstructed as stated. The complaint did not charge a conspiracy. Held, that these facts constituted no cause of action against the defendant.
    Before Sedgwick, Ch. J., Freedman, and Ingraham, JJ.

      Decided February 14, 1887.
    Appeal by defendant from judgment entered against him upon the report of a referee.
    The facts sufficiently appear in the opinion.

      R. H. Shannon, attorney, and E. F. Bullard, of counsel for appellant, on the questions considered in the opinion, argued.
    I. There is no legal principle upon which this action can be maintained: Harold v. N. Y. El. R. R. If the answer was intentionally false, the defendant might have been prosecuted by the public, but no civil action can be maintained in such a case. Smith v. Lewis, 3 Johnson’s R. 160.

      Thornton Earle & Kiendl, attorneys, and of counsel for respondents, on the questions considered in the opinion, argued
    I. The fraud perpetrated by defendant was actionable at the suit of the plaintiffs. Marshall v. York Ry. Co., 7 Eng. Law and Eg. 519 ; Ames v. Railway Co., 117 Mass. 541; Dunham v. Waterman, 17 N. Y. Rep. 21; 1 Com Dig., 168, title “ Action on the Case, A”; Schwenck v. Naylor, 24 W. Dig. 290; Benton v. Pratt, 2 Wend. 385; 1 Bac Abr. Action on the Case ; White v. Merritt, 3 Seld. 356-7 ; King v. Park, 19 Johns. 375; Baldwin v. Weed, 17 Wend. 224 Marg. p. 233-4; Cantine v. Clark, 41 Barb. 629 ; Clark v. Foot, 8 Johns, R. 421; Bruff v. Mali, 36 N. Y. 200; N. Y. and N. H. R. R. Co. v. Schuyler, 34 N. Y. 30; Thomas v. Winchester, 6 N. Y. 397; See 36 N. Y. 206 ; Verplank v. Tan Buren, 76 N. Y. 247 ; and State of Mich. v. Phenix Bank, 33 Id. 25; Schwenck v. Naylor, 24 Weekly Dig. 290.

      ■ It is no answer to the above to say that defendant violated no duty to plaintiffs, or that the corporation could prefer one creditor to another, (a) It has ever been the policy of this state to prevent preferences by any action of a corporation or its officers, even among bona fide creditors of corporations. See Revised Statute, vol. 1, pp. 602, 603 (Banks & Brothers’ 6th edition, vol. 2, pp. 398, 399.)
    And the preferred claims were not real debts of the corporation. (5) Even an individual can prefer one creditor to another, only when it is done in good faith. See 2 Revised Statute 137, § 1, and see the important recent case in the Court of Appeals (citing many authorities). Billings v. Russell, 101 N. Y. 226, pp. 232, 233.
    II. Assuming that actionable fraud could not be predicated of mere falsehood or wrong doing, by which plaintiffs were hindered and delayed in collecting their claim, if only honest claims were thus preferred, still the fictitious character of the claims that swept out the assets would give an action.
   Per Curiam.

The defendant was held liable in dam ages because, in an action brought by the plaintiffs against the Queen Publishing Co., a corporation formed under the laws of New York, in the Marine Court of the city of New York, for goods sold on note and open account, he, as the president of said corporation, with intent to hinder and to delay the plaintiffs in the collection of their claim in suit and with intent to defraud them, made and. swore to an affidavit which he knew to be essentially untrue, and on it procured an order to show cause why a bill of particulars should not be furnished, with a stay of all proceedings in the meantime and an extension of time to answer for twelve days, and thereafter, with the like intent, interposed an answer, also sworn to by him, which he knew to be false; and because, while the plaintiffs’ proceedings were thus obstructed, lie, the defendant, by collusive arrangements with others and in a great part upon fictitious claims, procured and suffered the recovery of judgments against the corporation and the issuing of executions thereon, under which all the property of the corporation was sold and disposed of before the plaintiffs could obtain their judgment, so that, when the plaintiffs did recover judgment, it was uncollectible and worthless, although it could have been collected if the plaintiffs had not been obstructed as stated. The foregoing facts were found by the referee and there is evidence to sustain the findings.

This being so, and no error having been pointed out in the admission of evidence, the question is whether upon the facts as stated and found, a civil action can be maintained.

In so far as the referee relied upon the decision in Moffat v. Herman by the General Term of the City Court of New York, he cannot be sustained, because that decision was reversed by the General Term of the Court of Common Pleas.

It was shown in Verplanck v. Van Buren, et al., 76 N. Y. 247 (259) and cases there cited, that an action on the case will not lie against a witness for perjury committed by him on a trial; nor- against a party for subornation of perjury, or for a contrivance by which untrue testimony is produced. In so far therefore as the action rests upon the perjury of the defendant, it cannot be sustained.

But it was also shown in the case last referred to that there was in former time the writ of conspiracy at common law, which lay in two cases only, viz : conspiracies for treason, or a capital felony, the party being acquitted, and that there also was, and is now, an action on the case for conspiracy, or for acts in the nature of a conspiracy. Such an action on the case lies where there is a combination for the purpose of fraudulently making use of legal proceedings, and damage is effected by such use.

The plaintiffs are not in a position to claim a benefit from Verplanck v. Van Buren, because, if for no other reason, the complaint here does not charge a conspiracy.

It then remains only to be seen whether the action can be sustained as one for fraud causing damage. If there was an actionable fraud, it must have been one which was committed by the defendant individually. Upon this branch of the case the following considerations arise, viz.: All of the acts done by- the defendant of which the plaintiffs complain were done while the plaintiffs were general creditors of the corporation of which the defendant was an officer. The defendant was not the plaintiffs’ debtor. His acts cannot be more actionable than would be the same acts by the debtor.

Adler v. Fenton, 24 How. (U. S.) 408, was an action begun by creditors of two of the defendants, upon the complaint that the latter had combined and conspired with their co-defendants to dispose of their property fraudulently, so as to hinder and defeat their creditors in the collection of their lawful demands, and that, by means of such fraudulent acts, the plaintiffs suffered vexation and expense and finally incurred the loss of their debt. There was testimony tending to convict all the defendants of the fraudulent acts alleged against them.

The opinion of the court notices that, at the time of the fraudulent acts, the creditors had no lien upon their debtors’ property, and that the debtors had a legal right to use and dispose of it, as they pleased. In citing Moran v. Dawes, Hopkins, Ch. R. 365, it was said that it was clear that Chancery would not interfere to prevent an insolvent debtor from alienating his property to avoid an existing or prospective debt, even when there is a suit pending to establish it. From Moran v. Dawes, supra, was cited that a creditor requires a lien upon the lands of his debtor by a judgment and upon the personal goods of the debtor, by the delivering of an execution to the sheriff. Before these liens are acquired the debtor has full dominion over his property, he may convert one species of property into another and he may alienate to a purchaser.” The court ended by saying that “ in the absence of special legislation we may safely affirm that a general creditor cannot bring an action on the case against his debtor or against those combining and colluding with him to make dispositions of his property, although the object of these dispositions be to hinder, delay and defraud the creditors.”

In the case just cited the plaintiffs do not seem to have recovered judgment on their original demand. In the present case the plaintiffs have become judgment creditors. The things of which they complain, were however all done while they were but simple creditors. If the acts were not then actionable, they did not become so by a subsequent recovery of judgment.

It has been determined in this state that there is no equitable right to an injunction to restrain a debtor intending to defraud his creditor, by transferring property, from accomplishing his intent. Reubens v. Joel, 13 N. Y. 488.

These considerations fully establish that the action cannot be sustained as one for fraud.

There being ho aspect in which the action in its present form can be upheld, the judgment should be reversed, the order of reference vacated, and a new trial ordered, with costs to the appellant to abide the event.


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

text:
    CHARLES M. ZEH, Appellant, v. EDWIN E. GLASKIN, Respondent.

      Production of boohs, etc., on trial, party entitled, to—Production by party compelled by subpoena duces tecum—Counsel compellable to produce.

    On the trial of an action where the nature of the issues requires the defendant to account for the disposition of moneys placed in his hands by the plaintiff and held by him under the obligation of a trustee for the plaintiff, the plaintiff has a right to the production of books kept by the defendant which prima facie contain entries as to the receipt and disbursement by him of such moneys.
    Such production may be enforced through a subpoena duces tecum.

    If they have been placed in counsel’s hands, the counsel may be verbally directed by the court to produce them, and he would be bound to obey. The defendant in the case at bar who was subpoenaed duces tecum, testified that the books which he was subpoenaed to produce were in the hands of counsel.

      Held, that plaintiff was entitled to a direction that counsel produce them.
    Before Sedgwick, Ch. J., and Freedmah, J.

      Decided March 14, 1887.
    Appeal by plaintiff from judgment dismissing the complaint entered upon the findings of a referee.
    The facts sufficiently appear in the opinion.

      Charles B. Meyer, attorney, and of counsel for appellant, on the questions considered in the opinion, argued :
    The referee erred in his ruling that the defendant could not be compelled by a subpoena duces tecum duly served to produce certain books and papers then stated to be in the hands of his counsel. Bonesteel v. Lynde, 8 How. 226, 352; Shelp v. Morrison, 13 Hun, 110, and other cases cited in Bailey's Trial Pr. p. 83; Code of Civil Pro., §§ 852, 867.

      Ira Shafer, attorney, and of counsel for respondent, argued that the testimony of the witness showed that he did not have and never had books or papers of the character called for; and that therefore the ruling of the referee, to which exception was taken, did not harm the plaintiff ; the defendant had nothing to produce.
   By the Court.—Sedgwick, Ch. J.

The nature of the issues required the defendant to account to the plaintiff for the disposition of moneys placed in his hands by the plaintiff. In holding these moneys and in disposing of them the defendant was under the obligation of a trustee.

In the course of the trial the plaintiff called the defendant as a witness and asked him to produce certain books, that had been described in a subpoena duces tecum, that had been served upon the witness. It appeared prima facie that the hooks referred to contained entries as to the receipt and disbursement by the witness of the moneys in question. The witness did not produce them and said they were in the hands of his counsel. The counsel for plaintiff asked the referee to direct the defendant counsel to produce these books. The defendant’s counsel objected on the ground that the witness could not be compelled to produce them by subpoena duces tecum. The referee sustained the objection, and refused to make such a direction. To this plaintiff’s counsel excepted.

It seems to me that the plaintiff had a right to the production of books in which his trustee had kept an account of moneys in his hand as trustee, and that this right could be enforced through a subpoena duces tecum, and further that the court might make a verbal direction that the counsel of defendant should produce the books which the counsel would be hound to obey. In this case, the referee should have made such a direction. As it cannot be determined what effect upon the trial of the issues proof of the contents of the books would have had, there should be a new trial.

Judgment reversed, order of reference vacated and a new trial ordered with costs to abide- the event.

Fbeedmax, J., concurred.


text:
    THOMAS McKERNAN, Appellant, v. THE MANHATTAN RAILWAY COMPANY, Respondent.

      Intending passengers, and carriers, respective rights of as to use of stations—Passion or wilfulness of agents, responsibility of carriers for acts done in—Ticket seller, scope of his employment in reference to removing persons from station—Evidence, sufficiency of to carry a case to the jury—Responsibility of carrier for agent's acts.

    The plaintiff, intending to become a passenger on defendant’s cars, went to one of its stations, offered the ticket seller his fare and asked for a ticket, the ticket seller refused to sell him a ticket alleging that he was drunk, which however was not the fact. He turned back to go out of the station, when the ticket seller walked after him saying, “you get down stairs.” After he got down several steps the ticket seller, using profane language, pushed him so forcibly that he fell over the railing upon the pavement below and was badly hurt. Behind this ticket seller at this time was another man. Both the ticket seller and this man were in uniform dress, the same as defendant’s employees wear. This other man said and did nothing; he did not interfere.

      Held, 1. That an intending passenger upon failing to buy a ticket is still lawfully on the station, with the duty of leaving it with ordinary promptness and not loitering there.
    2. That a passenger carrier has the right upon refusal of such intending passenger to leave the station after being requested so to do, by its agents, to use such force, not illegal in its kind, as might be necessary to enforce compliance with the request.
    S. That the carrier is -responsible for the acts of its agents employed to enforce such right which were in fact done towards enforcing it, and for the particular manner in which they are done, although he selected the manner for purposes of his own in passion or wilfullness.
    4. That in the ease at bar it was within the scope of the ticket seller’s employment to require a person to whom he had refused a ticket to move away and compel him to move, if that were necessary, and to provide in a proper way that he should not immediately return and make reiterated demands for a ticket.
    5. That the evidence in the case at bar, (above referred to) was sufficient to carry it to the jury on the questions (1) whether or not the ticket seller when he did the acts resulting in the injury complained of was attempting to force the plaintiff to leave the station; (2) whether or not the ticket seller in such attempt was acting within an employment by the defendant.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided March 14, 1887.
    Appeal by plaintiff from judgment of dismissal of complaint, entered upon direction made before a jury.
    The action was for damages from act of defendant’s servant as alleged.
    The facts sufficiently appear in the opinion.

      T. C. Campbell, attorney, and N. Quackenbos, of counsel for appellant, on the questions considered in its opinion, argued—
    I. Whether the plaintiff was a passenger or not, technically speaking, is a matter of no consequence. The true rule is, a carrier undertakes to protect such persons as the plaintiff against any injury arising from the negligence or willful misconduct of its servants while engaged in performing a duty which the carrier owes to such persons. Story on Evidence, § 452; Story on Agency, §§ 400 and 406 ; Starks v. Saltonstall, 13 Peters, 181: Joel v. Morrison, 6 Carrington & Payne, 501; Sleath v. Wilson, 7 Id.; Booth v. Minster, 7 Id. 66; Sanford v. The Eighth Avenue R. R. Co, 23 N. Y. 346 ; Rounds v. Del., Lack. & W. R. R. Co., 64 N. Y. 134; Shannon v. Boston & Albany R. R. Co. vol. 4 of Eastern Reporter, p. 105; Stewart v. Brooklyn Cross-town R. R., 90 N. Y. 588; Isaacs v. Third Avenue R. R. Co., 47 N. Y. 122, is discredited, and, in fact, overruled. Greville v. The Manhattan R. R. Co., Daily Register of January 8, 1884; Jackson v. The Second Avenue R. R. Co., 47 N. Y. 274; Hoffman v. The N. Y. C. & H. R. R. R. Co., 87 N. Y. 25; Railroad v. Bleeker, 27 Md. 277; Pittsburgh R. R. Co. v. Slusser, 19 Ohio, 157; Bryant v. Rich, 106 Mass. 189; Meyer v. Second Avenue R. R. Co., 8 Bos. 305.
    II. The question as to defendant’s liability was one of fact, which should have been submitted to the jury for their determination. The question whether a servant is acting in the scope of his authority is to be. determined from all the facts and circumstances of the case. In this case the defendant admits that some of its servants were charged with the duty of removing persons from the depot, and the servant in question undertook to perform that duty, and whether he was acting in the line of his duty was a question of fact.
    This view is fully sustained by many cases: Rounds v. Del., Lack. & West. R. R. Co., 60 N. Y. Rep. 137; Schwier v. N. Y. Cent. R. R. Co. 12 Weekly Digest, 215; Jackson v. Second Avenue R. R. Co., 47 N. Y. 274; Grovelle v. Manhattan R. R. Co., 20 W. D. 483; Lesan v. Railroad, 1 Eastern Reporter, 100.

      Davies, Cole & Rapallo, attorneys, and Hugh L. Cole, of counsel, for respondent argued :
    I. The plaintiff cannot recover in this action, unless he has shown either (1) that at the time the alleged assault was committed upon him, he was, in fact and in law, a passenger upon defendant’s railway; or (2) that the assault was committed by one of the defendant’s servants acting within the scope of his authority.
    He was not a passenger under the following case: Price v. Pennsylvania R’y Co., 96 Penn. State, 267; Brien v. Bennett, H. C. and P. 724; Davis v. C. L. R. R., 10 Abb. Pr. 300 ; Gordon v. G. St., & N. R. R. Co., 40 Barb. 546 ; Cleveland v. New Jersey Steamboat Co., 68 N. Y. 306.
    n. The defendant, therefore, can only be held liable, if at all, under the doctrine applicable in such cases to the liability of a master for the tortious acts of his servant ; and this liability only attaches when it is affirmatively shown, not only that the servant, while in the employ of his master, and doing his master’s work, committed the tort, but also that in so committing the tort he acted within the scope of his employment. Isaacs v. Third Ave. R. R. Co., 47 N. Y. 122.
    This case, although overruled by the court in Stewart v. The Crosstown R. R., 90 N. Y. 394, so far as it refers to the obligation of a carrier to his passengers, is good law as to the liability of a master for the torts of his servant.
    It is clear that the ticket agent was not acting within the scope of his employment when he committed the assault upon the plaintiff; that he had abandoned the employment to which he had been assigned by the defendant and left the place of such employment, and that in the assault upon the plaintiff he was simply committing a criminal assault.
   By the Court.—Sedgwick, Ch. J.

The jury might have found in the testimony given, the following facts. The plaintiff went to the ticket office of one of the defendants’ stations of their elevated road and offering his fare asked the ticket seller for a ticket. The ticket seller refused to sell him one, giving as a reason that the plaintiff was drunk. The plaintiff was not drunk. He turned back to go out of the station. The ticket seller left his office and walked after the plaintiff, saying, ‘"‘You get down stairs.” The plaintiff had gone down several steps, when the ticket seller pushed the plaintiff so forcibly that the plaintiff fell over the rail and upon the pavement below. By this he was badly hurt. The ticket seller as he pushed said to the plaintiff “ Go to hell, &c.” At this time behind the ticket seller was a man. Both of them had a uniform dress, the same as the employees of the railroad wear.

The learned judge below was of the opinion that the testimony incontrovertibly showed that the act of the ticket seller was so malicious and wanton, that it must be inferred that it was not done in the performance of any employment of the defendant, inasmuch as because the plaintiff was leaving the station with no delay, there was no duty of the ticket seller to the defendant to compel the plaintiff so to leave it.

On this appeal the plaintiff claims that it should have been left to the jury whether the ticket seller when he pushed the plaintiff was in the performance of what he had been employed for by the defendant. The respondent claims that the testimony shows that the ticket seller was employed to sell tickets and that there is no proof that he was employed by the defendant to do anything more.

It may be said without discussion to be the law, that the plaintiff, after he had failed to buy a ticket, was still lawfully upon the station, with a duty of leaving it with ordinary promptness and of not loitering there or of using it for any other purpose than that of leaving it. If the plaintiff had not begun to go out of the station, the defendant would have had a right, after he had been requested to leave, and after he refused to go, to use such force, not illegal in its kind, as was necessary to enforce a compliance with the request. The defendant acts through its agents. It had the right to empower agents to enforce the right that has been described.

If an agent employed to enforce this right did an act which was in fact done towards enforcing it, the defendant is responsible for the act and for the particular manner in which it was done, although the agent selected the manner, for a purpose of his own, in passion or wilfulness. Cosgrove v. Ogden, 49 N. Y. 255; Mott v. The Consumers Ice Co., 73 N. Y. 543 ; Stewart v. Brooklyn & C. R. R. Co., 90 N. Y. 588. The responsibility exists if the agent be employed for some additional duty. It is enough if his act is within the limits of a larger— more general—employment.

As I understand the testimony here, the jury could have found that the push, which is the act complained of, was done for the purpose of compelling the plaintiff to leave the station more quickly than he was leaving, or not to loiter there. The defendant was responsible then for the act, if the person who did it was shown by the testimony to be one employed by them to keep the station clear of persons not there on business, or improperly remaining there. The defendant was responsible for the selection, by such a servant, of the occasion on which it would be proper to eject such a person. And the question is, was there any testimony tending to show that the ticket seller was a servant under such an employment.

The jury might under the testimony have determined as follows: It was for the interest of the defendant to have one or more servants at the station whose duty it would be to keep it clear for its proper use. The persons who seemed to be in charge of the station had been appointed by the defendant to perform that duty. Irrespective of the presence and conduct of the ticket seller, the conduct and silence of the other man in uniform, who happened to be in charge alone or with the ticket seller, and his tacit approval of the conduct of the ticket seller, was a proof that the ticket seller was acting in accordance with the regulations of the defendant. This tacit approval was not of the kick or its force but of the previous conduct of the ticket seller, in approaching the plaintiff as if to compel him to leave. The jury might indeed have found that there was co-operation between the two. The ticket seller could not make himself the agent of defendant by his declarations. Apart from them, he was evidently employed to sell tickets and therefore to refuse to sell them. It was evidently within the scope of his employment to require a person to whom he had refused a ticket to move away and to compel him to move if that were necessary, and to provide in a proper way that he should not immediately return, and the jury might have found that he determined that the complete removal from the station of the plaintiff, was a proper provision against the plaintiff returning and making reiterated demands for a ticket.

I am further of opinion that the conduct of the ticket seller in the whole course from the time he left his place in the office, and then following the plaintiff to the stairs, was some evidence as to the character of his employment, prima facie, happening as it did on the premises of the defendant.

On these considerations and others not adduced, I am of opinion that the learned counsel for appellant is right in claiming that it was for the jury to find whether or not the ticket seller was attempting to force the plaintiff to leave the station, and whether or not the ticket seller in such an attempt was acting within an employment by defendant.

Judgment reversed and new trial ordered with costs to abide the event.

Ingraham, J., concurred.


text:
    ROBERT C. DAVIDGE, Respondent, v. RUSSELL COE, Appellant.

      Receiver, partnership not indispensable requisite to appointment of—Indeflniteness of order appointing receiver not ground for reversal—Waiver of appeal, what not.

    Where a plaintiff who has an interest in the profits as such under an arrangement between him and the defendant, whereby defendant was to furnish the plaintiff with goods to be sold by him, and plaintiff was to make sales thereof, make collections and receive primarily the profits and then divide them equally, brings an action in effect to wind up the business, for an accounting, and for a distribution of its assets according to the agreement, he is entitled (irrespective of any question of partnership) to a receiver of the books and papers necessary to such winding up, it being conceded that the agreement had terminated, and that an accounting was necessary.
    The fact that the language of the order, appointing a receiver, is so general as to leave it open to dispute what identical things are to be delivered to him, is not a sufficient ground for reversing the order.
    Proceeding on an accounting ordered by a judgment does not waive the right of appeal from that part of the same judgment which appoints a receiver.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 14, 1887.
    Appeal by defendant from, such part of the interlocutory judgment as directed the appointment of a receiver of certain property.
    Motion by respondent to dismiss this appeal.
    The complaint after setting forth the terms of an agreement between the plaintiff and defendant as they are stated in the opinion of the court (except that it alleged that the losses were to be borne equally) alleged that the business was carried on under plaintiff’s management and direction at the city of New York until January 1, 1885; that the books of the business were kept by the plaintiff, and were in his custody until July 8, 1886, when, without his knowledge or consent, they were taken from his custody by the defendant who still has the custody and control thereof; that he has been unable to regain the possession thereof; that a large amount is due from various persons for fertilizers sold them, and a considerable sum is due for debts contracted in the business; that said books of account contain entries of all sales and transactions relating to said business and mutual accounts between the plaintiff and defendant; that differences have arisen which preclude an amicable settlement of the accounts; and that the agreement between the plaintiff and defendant has terminated, and the relations thereby constituted dissolved; and prayed judgment “ that a receiver of the property and assets of said business may be appointed; that an injunction issue enjoining and restraining said defendant from secreting, removing, disposing of, or in any way interfering with said property, assets or books of account, and from collecting the accounts and credits pertaining to said business; that an account be taken and stated between the plaintiff and defendant of the matters relating to said business; that said property and assets be applied to the payment of the debts incurred in the said business, and that the remainder be divided between the plaintiff and said defendant in accordance with their rights respectively under said agreement.”
    The defendant by his answer admitted that the agreement had terminated, and the relations thereby constituted dissolved.
    Other facts appear in the opinion.

      Henry Sanger Snow, attorney and of counsel for appellant, after insisting that there was no partnership, and citing authorities in support of that position, argued on the principal appeal.
    Upon the whole case, therefore, it is maintained that plaintiff fails to establish a partnership, and upon no other ground is he entitled to the receivership and injunction granted by the court at special term. The rights or interests of third persons are not in issue; the question is between the parties themselves, and the relationship, both inter sese and as to third persons, was that of principal and agent.
    On the motion to dismiss he cited Bencord v. Babcock, 2 Robt. 178; Bennett v. Van Syckel, 18 N. Y. 481; Barker v. White, 58 Ib. 204; Brown v. Mayor, 9 Hun, 590 ; Hyatt v. Ingalls, 17 J. & S. 375 ; Matter of Water Commissioners of Amsterdam, 36 Hun, 534; Knapp v. Brown, 45 N. Y. 209; Egbert v. O’Conner, 46 N. Y. Supr. Ct. R. 194; Taussig v. Hart, 33 Ib. 157.

      F. C. Cantine, attorney and of counsel for respondent,
    on the motion to dismiss, cited, 4 Wait's Pr. 216 ; Bennett v. Van Syckel, 18 N. Y. 481-483; Murphy v. Spaulding, 46 Ib. 556—9 ; Matter of Water Commissioners, 36 Hun, 535.
   By the Court.—Sedgwick, Ch. J.

The parties had made an agreement by which the defendant was to furnish to plaintiff, from time to time, fertilizers, and the plaintiff was to sell them. From the proceeds, the defendant was to be reimbursed the cost of the fertilizers, then expenses were to be deducted, and profits were to be equally divided. The terms of the agreement are not in doubt, when the findings of the court are read, in connection with the testimony and the defendant’s answer. The defendant, however, claims that the plaintiff acted only as an agent of defendant, and that, therefore, the defendant was entitled to the possession of the books of account kept of the business, the papers connected with it, and Avhat are called the vouchers. The case was tried, on both sides, in such an indefinite and uncertain Avay that it is not possible to particularize these books, papers and A'ouchers, or Avhat is called in the case the assets of the business. The learned counsel for appellant does not deny that there should be an account adjudged to be made between the parties in the way directed by the judge below, but confines himself to the position that,as there Avas not a partnership, there can be no receiver. This is not an inevitable consequence. If, as was the case, the plaintiff had an interest in the profits as such, under an arrangement by which he was to make collections and receive primarily the profits, and then divide them equally, there would be sufficient cause for the appointment of a receiver of the documents of the business that would be necessary to the winding up of the business. The doubt would be whether, under the agreement, even if an account Avere directed in an action, the plaintiff would not be entitled to the sole possession of the documents so long as he was faithfully winding up the business. The propriety of the appointment of a receiver in such a case, and its validity, can be said to have been admitted by the defendant, for he avers in his answer that, in an action begun by him in the Supreme Court against the plaintiff here in relation to the same agreement and its consequences, he made a motion which the court granted; and that on it an order was entered “ appointing a receiver to take charge of and hold, until the determination of said action, the notes, moneys, books of account and other property in plaintiff’s possession as general agent as aforesaid.” In this case, if a temporary receiver was proper, so would be a permanent receiver. If the one side was entitled to secure the appointment of a receiver, so was the other-side.

The description of the property which the receiver is to take under the present judgment, is so general that , it may be foreseen that there will be a further dispute as to what identical things the parties are bound to deliver to the receiver: The plaintiff should have

made sufficient provision as to this. This however furnishes no reason for sustaining the appeal of the defendant.

The judgment is affirmed with costs.

As to the motion to dismiss the appeal, it must be said that the defendant did not waive his right to appeal from the judgment appointing a receiver by proceeding to the accounting ordered by that judgment. These parts of the judgment are divisible. An accounting might be proper although no receiver was appointed.

The motion to dismiss is denied with $10 costs.

Truax and Dugro, JX, concurred.


text:
    MAX DANZIGER, Respondent, v. JOHN BOYD, et al., Appellants.

      Use and occupation, evidence as to value of, in an ejectment action in a peculiar case—Objections not raising what might be a tenable ground— 2lesne profits, time when right to accrue.

    To prove the value of the use and occupation of a piece of land recovered by the plaintiff in an action of ejectment, which piece adjoined other lands of plaintiff on which a building was erected, and which piece could not or would not in the usual course of things be held, used or occupied separately from such other lands, it is admissible to prove what would be the rental value of plaintiff’s building with and without the land in dispute. The difference between the two would be the fact to be used by the jury in determining prima facie, the value or the use and occupation of the land in dispute.
    Strictly perhaps, a question which calls on the witness to make the calculation and state the result is objectionable, as calling for a result from a mental calculation on premises not given to the jury. But if so, that objection is not covered by objections that the question was hypothetical or that it related to a state of facts that did not exist.
    Mesne profits prior to the accruing of plaintiff’s title, cannot be recovered by him in an action of ejectment.
    Before Sedgwick, Ch. J., Tritax and Dugro, JJ.

      Decided March 14, 1887.
    Appeal by defendants from judgment entered on verdict of jury for plaintiff, and from order denying defendants’ motion for new trial made upon the judge’s minutes.
    The action was in ejectment and for damages for withholding the property. The rights of the parties, in the real estate in question, were passed upon in a former appeal in the action reported in 53 Super. Gt. 398. On the trial below the jury assessed the plaintiff’s damages at $1,000.
    Other facts appear in the opinion.

      Townsend & Mahon, attorneys, and of counsel for appellants, after arguing the questions decided in this action at a previous General Term, argued :
    I. The recovery of mesne profits for a period longer than the respondent held the title was properly objected to by the appellants.
    II. The jury were improperly permitted to estimate the value of the use and occupation of the premises upon consideration of what it would be if the part claimed had been added to the adjoining building.
    III. The objections to evidence made by appellants’ counsel, as to what would be the value of the use and occupation of the premises in suit if added to the other building, were good. , .

      Kaufmann & Sanders, attorneys, and Lewis Sanders, of counsel for respondent, urged :
    I. The objection to the question, What would be the value of the use and occupation of the premises in suit if you added to it the other building,” is not maintainable.
    It is based on the idea that if plaintiff is deprived of half his premises he cannot show what the half he is out of possession would produce if he added it to the other half in possession—that is to say, if the defendant, by unlawfully occupying the ingress to plaintiff’s building deprives him of the whole use thereof, plaintiff can only recover the value of the strip of land unlawfully occupied if used in an isolated condition. This cannot be.
    II. The objection to recovery before deed to plaintiff is not maintainable.
    There can be no recovery of damages for withholding land without recovery of the land itself. Code, § 1531; Kyle v. Kyle, 67 N. Y. 400.
    The deed to plaintiff is not returned in the record, and it cannot be affirmed that the court below erred in not confining plaintiff to damages from the time of the conveyance to him. The statute gives six years, and confines it to actions where the land is recovered. If the plaintiff’s grantor reserved the right, the fact must be made to appear.
    But the right was inalienable from the land.
    Again, it was not alleged as a defense that the plaintiff was not the real party in interest as to damages before conveyance to him.
   By the Court.—Sedgwick, Ch. J.

The former decision at General Term should be followed, and according to it the learned judge below correctly instructed the jury that the verdict should be for plaintiff, on the issue as to title and right to possession.

The real estate in question was a piece of land covered by a building over it, ended by a party wall. The defendants had taken possession up to the party wall. Legally they were entitled to possession no farther than to about five feet from the party wall. The disputed land was a part of an entire holding of plaintiff and could not, or would not in the usual course of things, be held, used or occupied separately. The plaintiff proposed to prove the rental value of the whole and asked what would be the value of the use and occupation of the premises in suit if you added it to the other building ?” meaning the plaintiff’s building. The only objections made to this were that the question was hypothetical, and referred to a state of facts that did not exist. The answer was, that it is worth $50 more, a month. There was a motion made to strike out the answer on the same objections that were made to the question.

It seems to me that if the question was what would be the rental value of the plaintiff’s building with and without the land in dispute the question would be competent. Woodhull v. Rosenthal, 61 N. Y. 383. The process would be to ascertain the value of the whole, and then to' assign to the disputed part its proportionate value according to its relation to the remainder. The difference between the amounts named under the question supposed, would be the fact to be used by the jury, prima facie. Strictly perhaps on the trial the witness should not have made the calculation directly stating the difference. This, however, did not affect the substance of the testimony and was not made the point of objection. There was no error in the ruling of the court.

It appears by the case that the plaintiff took title on February 11, 1884. The defendants’ counsel asked the court to charge the jury that the plaintiff is not entitled to claim any damages, except from the time he received his conveyance. The request was denied. The learned counsel have not produced any authorities upon the subject.

The general rule in action, for mesne profits, permits a recovery of annual value from the time of the accruing of plaintiff’s title. Sedgwick on Damages, 5 Ed. 133. The nature of the claim of the party kept out of possession is the same as that of the claim in an action of trespass for mesne profits or for use and occupation. The claim is personal to the plaintiff and must be subsequent to the time he took title. Before that, he was not wronged. The wrongful possessor did not before that time, take an occupation or profits that belonged to the plaintiff. The jury should have been charged as requested. Holmes v. Davis, 19 N. Y. 491.

For this reason the judgment should be reversed and a new trial ordered with costs to abide the event. If the respondent elects to remit the amount of damage recovered, the judgment may be so modified and affirmed without costs to either party.

' As there was no notice of appeal from the order denying the motion for a new trial, that order must stand, without any direction as to it on this appeal.

Truax and Dtjgro, JJ., concurred.


author: By the Court.—Truax, J.

text:
    WILLIAM M. KEELER, Appellant, v. BARRETTS, PALMER & HEAL DYEING ESTABLISHMENT, Respondents.

      Motion for a now trial on the minutes, request for direction of verdict, when, and when not necessary to sustain motion.

    It is the settled law of the Superior Court that the party against whom a verdict is rendered on conflicting evidence, cannot sustain a motion for a' new trial on the minutes, either on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, if he neglects to request the court to direct a verdict in his favor.
    But where there is no conflict of evidence, the question whether it is sufficient to support the verdict may without such request, be" considered on a motion for a new trial on the minutes, made on the ground that the verdict is against law.
    Before Sedgwick, Ch. J., Tritax and Dugro, J.J.

      Decided March 14, 1887.
    This is an appeal from an order denying a motion for a new trial.
    The case was before this court on an appeal from the judgment, on which appeal the judgment was affirmed.
    The facts sufficiently appear in the opinion.

      S. F. Kneeland, attorney, and of counsel for appellant.

      Taylor & Ferris, attorneys, and James A. Taylor, of counsel for respondents.
   By the Court.—Truax, J.

The plaintiff moved under § 999 of the Code of Civil Procedure for a new trial, on the grounds that the verdict was against the evidence, and also against law.”

The material question in the case was, what was the agreement which had been entered into between the parties hereto, ?

The evidence on that question is conflicting, and therefore the court rightly left it to the jury to determine the fact.

The plaintiff conceded that the evidence was conflicting, because he did not move the court to direct a verdict in his favor.

It is settled in this court that where evidence is conflicting, and the plaintiff neglects to ask the court to direct a verdict in his favor, he cannot afterwards sustain a motion for a new trial on the judge’s minutes on the ground that the evidence was insufficient to warrant the verdict—or on the ground that the verdict was contrary to the evidence. Rowe v. Stevens, 34 Super. Ct. 436; Sickle v. Gillies, 45 Howard, 94; Pollock v. Brennan, 39 Super. Ct. 477.

This court held in the case of Rowe v. Stevens, supra. that by not asking the court to direct a verdict in his favor, the party conceded that there was sufficient evidence to carry the case to the jury, and having consented to a decision by that tribunal, and having taken his chance of a favorable verdict which would have concluded his opponent upon the facts, he should not after-wards be permitted to allege that the verdict is without evidence or insufficiently supported by the evidence, and for that reason against law. See Barrett v. Third Avenue R. R. Co., 45 N. Y. 632.

It is true that where there is no conflict in the evidence, the question whether it is sufficient to support the verdict is one of law, and may be considered on a motion for a new trial on the minutes, if the motion is made on the ground that the verdict is against law— but that is not this case.

Here there was a conflict of evidence on the material point in the case.

The plaintiff also moves for a new trial on the ground that the verdict was against law.

The law in this case was the judge’s charge, to which there was no exception.

A careful examination shows us that the verdict was not contrary to the charge of the court, but was in strict conformity to it.

In this case we think that substantial justice has been done, and that the jury decided in favor of, and not against the weight of the evidence.

Order appealed from affirmed with costs.

Sedgwick, Ch. J., and Dugro, J. concurred.


text:
    GEORGE W. McLEAN, Receiver of Taxes in the City of New York, Respondent, v. THE MANHATTAN MEDICINE COMPANY, Appellant.

      Demand before action, as to necessity of—Necessary to sustain an auction against a corporation for unpaid taxes.

    Where a statute requires a demand, it is a condition precedent to the action, and the action itself is not a sufficient demand.
    The statutes in relation to the collection of taxes assessed on incorporated companies, require payment thereof to be demanded from the president or other proper officers before proceedings are taken for their collection. Such demand is a condition precedent to the maintaining of an action to recover such taxes.
    Before Sedgwick, Ch. X, Truax and Dugro, JX

      Decided March 14, 1887.
    This is an appeal from a final judgment entered on an order overriding a demurrer, and from such order.

      The complaint alleges the appointment of the plaintiff as receiver of taxes in the city of New York, and his entry upon the duties of his office as such receiver.
    It alleges that, at all the times therein mentioned, the defendant was and is a domestic corporation organized and existing under the laws of the state of New York, and having its principal office or place of transacting its financial concerns in the city and county of New York.
    That the defendant was, under the direction of the commissioner of taxes and assessments of the city and county of New York, and by deputy tax commissioner to such duty by them assigned, duly assessed for the purposes of taxation in and for the year 1881, upon, its capital stock in the sum of $20,000, and that such assessment was duly made in the city and county of New York.
    That such assessment was duly confirmed by the Board of Alderman, and that a tax, in the year 1881, was duly imposed by such board upon the said defendant in.the city of New York for the sum of $524.
    That, on the 24th day of October, 1881, the corrected assessment roll, showing said assessment and the amount of said tax, was duly delivered by the Board of Aldermen of the city of New York to Martin T. McMahon as receiver of taxes with a warrant annexed thereto, given under the hands and seals of five more of the members of the said Board, directed to him as such receiver of taxes, and commanding him to collect said tax, which warrant was in due form of law.
    That, on the 15th day of January, following the year in which the said tax was imposed, as aforesaid, the said tax remained, and still does remain, wholly unpaid, and in arrear.
    The defendant demurred to the complaint upon the ground that it appeared upon the face thereof that the complaint did not state facts sufficient to constitute a cause of action.

      Saunders, Webb & Worcester, attorneys, and Thorn-dike Saunders of counsel for appellant, on the question considered in the opinion, argued:
    A specific “ demand ” is a prerequisite to action, and should have been alleged in the complaint.
    I. The law requires the receiver of taxes to demand the payment of the tax upon capital stock from the president or other proper officer; and, if not paid, to proceed in the collection thereof in the same manner as in other cases. N. Y. City Consol’d’n Act, 1882, § 848.
    Then, as in other cases, he may recover tax in arrears on January 15, etc., by suit. Ib. 1882, § 863.
    It is not required by this law that the receiver shall demand tax from individuals assessed in the city of New York. Hence the decision in the case in 50 N. Y. Super. Court, 533 (McMahon v. Platt), to the effect that no demand is necessary, though good for that class of cases, is inapplicable to a cause alleged against a corporation for tax on its capital stock where a demand is specifically required by statute.
    n. Where the statute requires a demand, it is a condition precedent to the action. Thompson v. Gardner, 10 Johns. 404; Parker v. Rule’s Lessee, 9 Cranch, 65.
    III. The action itself is not a sufficient demand. That is enough where there is an agreement to pay and it should not be extended. Downes v. Pœnnix Bank, 6 Hill, 297.
    While in, cases of taxation, though action may be maintained, yet there is no promise founded on an agreement. Burroughs on Taxation, § 105.
    IY. This section 848, requiring demand, is not repealed by section 863.
    The two sections can be read so as to stand, and should be so read that both may be operative. Beebe v. Estabrook, 79 N. Y. 246; Kerr v Dougherty, Ib. 327.
    Y. The complaint was insufficient in not containing an allegation of “ demand.” Bristol v. Rensselaer and Saratoga R. R. Co., 8 Barb. 160.

      George P. Andrews, counsel to the corporation, on the questions considered in the opinion, argued:
    The The omission in the complaint of any allegation of a demand for the tax of the kind mentioned in R. S., part I., chapter 13, title § 17, is the principal ground of defendant’s demurrer, the defendant’s contention being that no action will lie till such a demand has- been made. The plaintiff, on the contrary, claims that .the fact that the tax was unpaid on the 15th day of January following the year of its imposition, ipso facto, gives rise to the cause of action.
    A perusal of the title in question, 2 R. S. (Banks’ 7th ed.) p. 1038, convinces that the demand provided for in § 17 is merely one feature of the scheme blocked out in the subsequent sections of the title for the collection of taxes against corporations. It is part and parcel of that particular method of collection, the preliminary step therein. It is not a condition precedent to any other companion method of collection that may exist.
    The statute under which the present action is brought (§ 863, N. Y. City Consolidation Act of 1882) says boldly and without qualification: “ Any tax duly imposed for personal property upon any person or corporation in the city or county of New York, and which shall remain unpaid and in arrear on the fifteenth day of January succeeding the year in which it shall have been imposed, may be recovered with interest and costs, by the receiver of taxes of said city, in an action in any court of record in this state.”
    The statute, a local one, is a re-enactment of chapter 334, Laws of 1867, entitled “An act in relation to the collection of arrears of personal taxes in the city of New York.” The act, as its title indicates, prescribes a scheme for the collection of taxes in this city. That scheme is complete in itself and contains no requirement for a demand.
    By the terms of this Act of 1867 corporations and persons are put on an equal footing in this respect. No demand is required of either, and no good reason exists why there should be a demand. The tax is evidently regarded as a simple claim or debt to be enforced like any other claim or debt, by an action at law.
    On the other hand, the demand prescribed in the collection scheme provided in the Revised Statutes, has a raison d’etre. It is a condition precedent to an extraordinary remedy for the collection of the tax, a proceeding by the Attorney General of the state to sequester the property of the corporation and if need be to suspend the exercise of its corporate functions until the tax be paid.
    The general and the local schemes are evidently separate and distinct, and bear no relation one to the other.
    The same reasoning applies to the demand prescribed in section 848 of the Consolidation Act; it is a re-enactment of section 15, art. 2, chap. 230, Laws of 1843, entitled “ An act for the collection of taxes in the city of New York.” It is independent of the Act of 1867. The local scheme provided by the Act of 1843, so far as it has not been repealed, is still in force, although not contained in the Consolidation Act. Mayor v. Buell, 12 Daly, 494; Laws of 1843, chap. 230, art. 2, §§ 15-21, p. 320; §§ 18-21 Repealed Laws, 1862, chap. 152.
   By the Court.—Truax, J.

The principal reason assigned to us why the complaint does not state facts sufficient to constitute a cause of action, is, that it does not allege that a demand was made by the receiver of taxes upon the president or other proper officer of the defendant, before the commencement of the action. The general method in which the taxes imposed upon incorporated companies are to be collected, is prescribed by title 4, chap. 13, part 1, of the Revised. Statutes, Banks’ 6th ed., p. 979.

These provisions are modified in a slight degree by title 1, chap. 16, of the Consolidated City Act of 1882.

Section 1, of the act first above cited, provides that “ all moneyed or stock corporations deriving an income from their capital or otherwise, shall be liable to taxation on their capital in the manner hereinafter prescribed.”

Section 18 [17] provides that “the collector shall demand payment of all taxes assessed on incorporated companies from the president or other proper officer of such companies, and if not paid shall proceed in the collection and payment thereof in the same manner as in other cases.”

This provision became a part of the Consolidated City Act, and is section 848 thereof.

Now, the proceeding authorized by this title of the Revised Statutes, and by the title of the Consolidated Act above referred to, is, among other things, the collection of a tax which has been duly imposed upon an incorporated company, and which remains unpaid.

This section says that, before the collector—or in the city of New York the receiver—of taxes shall proceed in the collection of taxes, he shall make a demand upon the president or proper officer of the company taxed.

No such demand has been alleged in this case.

Where a statute requires a demand it is a condition precedent to the action, and the action itself is not a sufficient demand. Thompson v. Gardner, 10 Johns. 404; Downes v. Phœnix Bank, 6 Hill, 297.

Section 848, which requires the demand, is not repealed or modified by section 863.

Section 848 says, that the officer shall proceed in the collection of a tax, and then section 863 provides the manner in which the officer shall proceed in the collection of the tax, namely: “ He shall proceed in an action in any court of record in this state, and may recover the tax with interest and costs in such action.”

Since the plaintiff must amend in this particular point, there is no reason why he should not allege in his amended complaint that the defendant is a corporation deriving an income or profits from its capital or otherwise, and so avoid the other objections to the complaint raised by the defendant.

The judgment and order below are reversed, and the demurrer to the complaint is sustained with costs, and with leave to the plaintiff to amend the complaint on payment of such costs.

Dugko, J., concurred.


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

text:
    PHILIP EBLING, et al., Respondent, v. JOSEPH HUSSON, Appellant.

      Personal property, conversion of,—Landlords' lien upon property for nonpayment of rent, no longer exists—abolished by statute with distress for rent.

    In this case the plaintiffs claimed title to certain personal property as mortgagees, the mortgagor having died, and made a demand for its possession from defendant, in accordance with the terms of the mortgage. The possession or control of the property by the defendant at time of demand, was a question on the trial decided against the defendant, and affirmed by the General Term. The only objection raised by the defendant against the plaintiffs’ title to the property, was that the mortgage was never filed. Held, That defendant being only a general creditor of the mortgagor without judgment, he could not make the objection.
    Defendant also claimed to assail the mortgage on the ground that he had the lien of a landlord upon the property for non-payment of rent of the premises, where the property was used by the mortgagor. Held,
      that under the common law, such a lien was accessory to the right of distress for rent, which has been abolished by statute, and such a lien no longer exists; but even if there were such a lien, it had been waived by the appellant, in not keeping the property, and proceeding to apply the same to the rent due instead of storing the same (as he did) for whom it might concern.
    Before Sedgwick, Ch. J., Freedman and O’Gormar, JJ.

      Decided May 2, 1887.
    Appeal by defendant from judgment entered on verdict of jury, and from order denying motion for new trial made upon the minutes.

      Joseph Husson, attorney in person, and Dennis McMahon of counsel for appellant.

      Simon Sultan for respondents.
   By the Court.—Sedgwick, Ch. J.,

The action was for damages for conversion of personal property. The jury found for plaintiffs.

The chattels in question had formed the furniture and fixtures of a beer and billiard room, leased by the defendant to a tenant or tenants who owned the furniture and fixtures. The defendant, before the alleged conversion dispossessed by summary proceeding, for non-payment of rent, the tenant in possession. It is claimed for the defendant on this appeal, that upon the tenant being dispossessed, the defendant placed a new tenant in possession of the room, merely leaving the chattels in it, and not taking or assuming any control over them or custody of them. The further claim is that while the new tenant was in possession of the chattels, the demand was made upon the defendant, and that it was no evidence of conversion by him, for him not to deliver, as he then had no control over the chattels and could not have, as he had no right to enter the premises of his tenant. Peck v. Knox, 1 Sweeny, 314, is cited.

There was no incontrovertible evidence to support these propositions. The defendant, as a witness, denied that a demand had been made, as plaintiffs’ witnesses had testified it had been made on April 30th. The new tenant testified in substance as the jury might properly find, that he had refused from the first to take custody of the chattels. The officer executing the warrant in the dispossessory proceeding, testified that the new tenant refused to take the property. The defendant claimed very soon after the ejection that he had a lien upon the property, and himself caused it to be stored for whom it might concern. Under all the testimony the jury might properly find that on April 30th the defendant had control of the property and might have delivered it to plaintiffs.

If the plaintiffs had title or right to possession, the facts that have been noticed would show a conversion by defendant, on April 30th. The defendant’s counsel supposes that a subsequent transaction between the parties would show that the refusal of April 30th was not then absolute or assumed by plaintiffs to be so. That transaction was that, at request of defendant, the plaintiffs sent their carts to take away the property. The defendant claims that the plaintiffs might then have obtained possession of the property. The plaintiffs, however, testify that the defendant would only allow the plaintiffs to take part of the property, and that they refused to take any part, if they were not allowed to take all. If this were the fact, at the best for defendant, he could only resist a recovery for such part or its value, as the plaintiffs might have taken. It would be no reason for dismissing the complaint, but for a proper instruction to the jury as to the damages. The court was not asked to give such instruction, but was allowed without objection, to place the case upon the alleged demand and refusal of the 30th of April.

It is argued, however, that the plaintiffs did not show title to the goods or a right to their possession. They claimed the title as mortgagees, making a demand in accordance with the terms of the mortgage. The only objection to the plaintiffs’ title that is made by the defendant, is that the mortgage was never filed. The counsel for the appellant admits that the defendant was a general creditor without judgment, and that if he had only the rights of such a creditor, he could not make the objection. He maintains the right to assail the mortgage, on the ground, that he had upon the property the lien of a landlord for non-payment of rent at common law. Such a lien was accessory to the right of distress, which has been abolished by statute, and there is no longer such a lien. If there were, it has been waived by not "keeping the goods and proceeding to apply them to the rent due, but storing them for whom it may concern.

There is a further claim that the landlord had the right to keep the goods until the appointment of an administrator, the mortgagee having died, so as to give the administrator an opportunity to attack the mortgage, under the statute as fraudulent. I do not see any ground for this claim.

The judge’s ruling that the whole of defendant’s affidavit could not be read by him, but only so much as was connected with, or in explanation of what plaintiffs’ counsehhad read was correct.

Judgment and ordér appealed from affirmed with costs.

Freedman and O’Gorman, JJ., concurred.


text:
    ANNIE L. CAMPBELL, Respondent, v. WILLIAM CAMPBELL, Appellant.

      Value of personalty, evidence as to.—The fact that plaintiff had bought articles, not in shops, and by private bargains with persons not in trade, and had articles given her, do not constitute her a competent witness to the value of such articles.

      Valuation in a policy of insurance.—The valuation contained in a policy of insurance procured, to be issued by the defendant on property as belonging to the plaintiff, such valuation being given by the plaintiff in the absence of the defendant, is not evidence in favor of the plaintiff against the defendant, of the value of the property.

      Bias and, animosity.—Where a wife sues her husband for the conversion of articles claimed to have been given her by him, and for the most part her title arose from words, as to which she was in several instances the sole witness, evidence that on a certain occasion, she being angered at a certain action of her husband, with repeated oaths said that she would smash every thing in the house, that she would get even with him, is material and pertinent. A fortiori, where there is direct conflict between the husband and wife as witnesses as to whether there had been the gifts claimed by her.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided, May 2, 1887.
    Appeal by defendant from judgment entered upon report of referee.

      James JE. Chandler, attorney; and William R. Darling, of counsel for appellant.

      Frank I. Dupignae, attorney, and William Fullerton, of counsel for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was for damages for the conversion of personal property.

The judgment must be reversed for a want of proof of the value of certain articles, a value of which based upon incompetent testimony, was reported favorably to the plaintiff to an important extent. Certain witnesses, acquainted with market values, testified that by use the depreciation of the articles was of different percentage specified by them. This was not a basis of an estimation of values in the absence of proof of what was thoriginal value. No propf was given, unless it was in the testimony of the plaintiff herself. Some of the articles had been bought by her not in shops, but by private bargain with persons not in trade; that is, the plaintiff did not buy these articles in the market. What she gave for these she at first testified to, but her testimony on that point did not prove value. Other articles had been gifts to plaintiff, and she was not competent as a witness to their value. tIndeed all the testimony of the plaintiff as to the value of articles which she did not buy in shops or stores, was stricken out. This testimony being out of the case, the plaintiff should not have recovered as she did, the value that was assigned to them by the referee.

The force of these objections, it is argued for respondent, does not call for a reversal, because the value of the articles converted was admitted by the defendant to the extent to which there was a recovery. This admission it is claimed appears in a policy of fire insurance, taken out on the order of the defendant, and the articles insured in it are insured as the property of the plaintiff, the loss being payable to her. In it the value of the property is given. The testimony shows that the plaintiff ordered a witness to procure the policy and to have the property insured as belonging to the plaintiff, but the defendant did not give any directions as to the amount of the insurance, but told the witness to have the valuation made by the plaintiff. The plaintiff accordingly made the valuation in the absence of the defendant, and it was inserted in the policy. There is no proof that the defendant ever knew what valuation had been inserted in the policy. The preponderance of testimony is to the contrary. Although the policy might have been evidence as to the ownership of the property, it was not evidence of its value. I am of opinion that the objections have not been met.

The plaintiff and defendant had been husband and wife. The plaintiff claimed that the property in question had been for the most part given to her by the defendant, before the marriage had been dissolved. After the gifts had been made, as she claimed, she went to a jeweller’s shop and ordered a valuable pair of earrings. The jeweller, was informed by the defendant that he would not pay for articles not bought by himself. A clerk was sent to the dwelling of the plaintiff and he there told her that the articles could not be sent to her, because of her husband’s instructions. She became very excited, and with repeated oaths said she would smash everything in the house; that she would get even with him. The witness to this testified that he left her still swearing that she would get even with her husband, if these stones were not sent up at once. The referee, on the motion of counsel for plaintiff, struck this from the evidence, as irrelevant and immaterial.

I am of opinion that the referee should have retained the testimony and used it, in arriving at a conclusion, from the whole case. For the most part, the plaintiff’s title arose from words of gift as to which she was in several instances the sole witness. In all cases testimony as to words, should be examined with caution, and especially in this case, where a slight change of words, almost a difference of intonation, would make a declaration of a gift when there was none in fact made. Animosity, a vindictive feeling toward the defendant, might give the witness a bias, which should be considered in ascertaining the exact weight of the evidence. I think the testimony stricken out was pertinent to proof of such a bias.

Moreover, there was a direct conflict between the parties as witnesses as to whether there had been the gifts claimed by plaintiff. It would have been under the evidence proper for the referee to consider whether the plaintiff proposed in her threats to smash her own property to. get even with the defendant, or to smash his property with such a purpose. The referee was not bound to,any particular construction of her threats. A construction should have been given in connection with all the facts. If irrespective of the due weight of this testimony the scales were but slightly in favor of the plaintiff, they might have been turned in favor of the defendant if the threats had been considered. As the case stands I do not perceive such a preponderance of testimony in favor of the plaintiff, that a consideration of this testimony could not have changed it.

In determining this appeal, it is not intended to pass one way or the other, upon the sufficiency of the facts to show the gifts claimed by the plaintiff. The first impression might be that it did not appear that the referee applied any rule of law erroneously. Yet the merits of such cases are so dependent upon the specific testimony given, that no aid can be furnished to the new trial in advance of the knowledge of what will then appear.

The "judgment should be reversed, the order of reference vacated, and a new trial ordered with costs to abide event.

Freedman and O’Gorman, JJ., concurred.