text:
    J. SCHUYLER CROSBY, Plaintiff and Respondent, v. G. BURGHALL WATTS, Defendant and Appellant.
    EQUITY JURISDICTION AND PRACTICE.
    ACTION FOB AN ACCOUNTING.
    AMENDMENT OF COMPLAINT ON THE TBIAL TO CONFOBH THE PLEADING TO THE FACTS PROVED, UNDER CODE, § 173.
    Where parties have had joint transactions together which are unsettled, either of them, who claims that he has rights to be declared or enforced, that arise from said transactions, may bring an action for an account, in which an account may be legally stated and taken that shall be binding upon both parties, and after the proofs are taken, if it appears that the proofs do not substantially change the claim, or the substance thereof, as set up in the complaint, the complaint may be amended under § 173 of the Code, so as to conform the pleading to the facts proved.
    Such an amendment does not fall within the restriction of that section, which provides that the amendment shall not change substantially the claim.
    It would impair the efficacy of equity jurisdiction, in these cases, if it was held as a rule that unless the suitor accurately set forth the facts constituting his claim, he should be dismissed from the court, without judgment, although the facts proved fully established his claim thereto.

      Before Curtis and Sanford, JJ.

      Decided, May 1, 1876.
    The theory of this class of remedies is that the court will marshal, and, state and pass judgment upon the transactions and accounts, as they shall be disclosed and established at the hearing; and the origin of the remedy was based upon the necessity of those cases where, by ignorance, fraud, or other causes, men were prevented from properly or correctly stating their accounts, so as to protect their rights in the premises; and in such cases a court of equity intervenes, and takes, and states the same when its aid is sought.
    No stringent rule can be applied to the complaint or statement of this class of claims; as such a rule would be liable to prevent a just and equitable accounting, and a discovery is a part of the theory of the action.
    In the case at bar, the amendment was especially applicable to the pleadings in this class of cases, for the reason that oftentimes parties do not know the facts in detail, in regard to their respective claims, until the proofs are taken and the account between them taken and stated, and thus by an amendment of the pleadings, the record is relieved of embarrassment.
    The court also held, that in the case at bar, if there had been no amendment of the complaint, the plaintiff would have been entitled to the judgment, in conformity to the accounting taken and stated by the court.
    When a party acting in a fiduciary capacity, has by false statements and acts caused his principal to incorrectly state in his complaint, in an action for an accounting between them, the facls relating to, and the character and extent of his claim and of the transactions and accounts, respecting which he calls the agent to account, the latter cannot deprive the former of his remedy, by disclosing upon the trial his own wrongful acts, and seeking a technical advantage thereby, to defeat the action, because the real facts thus disclosed, do not conform to those stated in the complaint.
    Courts of equity do not lend themselves to the furtherance of such schemes or views.
    Appeal from a judgment rendered at special term,

      The action is brought for an accounting between the plaintiff and the defendant, in respect to a transaction had, in regard to a purchase of two hundred shares of Panama Railroad stock. The plaintiff claimed that there was an agreement that the defendant should purchase the shares for their joint account, and that the profits and losses should be equally divided between them.
    The defendant denied that there was any such agreement, but alleged that he purchased and sold for the sole risk of the plaintiff, one hundred shares of Panama Railroad stock; and that an account was stated between them of such purchase, and sale, showing a balance due to the defendant, which the plaintiff promised to pay, and on account of which he made various payments, leaving a balance still due, for which he asked judgment against the plaintiff. The plaintiff denied such purchase and sale for his individual account.
    The judge found that the agreement between the parties was that the defendant should purchase two hundred shares of this stock, and hold and carry the same on and for the joint account of the plaintiff and the defendant. The judge further found that no purchase had been made of the two hundred shares of the stock, by the defendant, in pursuance of such agreement, nor had he paid out any money under the agreement, and that upon the defendant’s representations that he had made such purchase, and had paid and advanced money for such shares of stock, and that a loss resulted from the sale thereof, the plaintiff paid to the defendant sundry sums of money, amounting in all, with interest, to two thousand three hundred and ninety-two dollars and fifty cents, for which he was entitled to judgment against the defendant.
    After the proofs had been taken at the trial, and before the summing up of the counsel, the plaintiff moved to amend the complaint so as to allege “ that no purchase whatever had been made by the defendant of any stock, on the ground that the evidence produced showed that to be the fact.”
    This motion was granted, and the defendant excepted.
    The defendant appeals from the judgment.

      George V. N. Baldwin, attorney, and F. F. Marbury, of counsel for appellant.

      Albert Stickney, for respondent.
   By the Court.—Curtis, J.

Two questions are presented on this appeal, one of fact as to whether the defendant made any purchase whatever of the stock in question ; the other, whether the court erred in allowing the amendment of the complaint.

An examination of the evidence shows, that both parties transacted business loosely. Their relations were intimate, and their mutual business matters were conducted without much reference to making and preserving full and regular entries and memoranda of what was done. Neither, individually, seemed conversant with details.

The testimony of the defendant, that the agreement was that he should buy one hundred shares of Panama Railroad stock for the sole account and risk of the plaintiff, and that he did so, is met by the denial of the plaintiff, whose evidence is directly in conflict as to the making of any such agreement with the plaintiff.

Where the recollections of parties are so at variance, some light and reliable proof may be often gained by referring to entries in books made at the time of the occurrences, and also to the written statements rendered by one party to the other, when the subject matter is fresh in their memories.

Upon examining the books of the defendant, and the statements rendered by him to the plaintiff, the plantiff’s testimony that the purchase was to be made on joint account and the profits and losses to be equally divided between them is strongly corroborated. This is also confirmed, by reference to preceding transactions of purchases of stocks, where the dealings in stocks between the parties were on this footing, and the accounts so kept and rendered.

The entries in the books of the defendant in reference to this stock, at the period in question, fail to strengthen his testimony in regard to having purchased this one hundred shares for the plaintiff. The defendant does not appear to have had much acquaintance with his books, or the way in which his accounts were kept and statements rendered.

The explanation of the defendant’s book-keeper, that this difficulty with the accounts is the result of a mistake made by him, may be true, but it is not very satisfactory. The judge before whom the case was tried, who had the books, and the statements rendered, and the witnesses before him, and who had the best opportunity of finding out and determining what were the facts in the case, has come to a conclusion adverse to what is claimed by the defendant.

Though the testimony is conflicting, yet the findings of the judge at the trial are so sustained by the proofs, that the court on appeal cannot consistently with the well settled rules governing under such circumstances, hold they are erroneous.

It remains to be considered what force is to be given to the defendant’s exception to the amendment of the complaint ordered by the judge at the trial. The 173d section of the Code, gives power to the court to amend by conforming the pleading to the facts proved, subject to the restriction that the amendment does not change substantially the claim or defense. It is urged on the part of the defendant that the judgment in this action is in direct hostility to the theory of the suit, and cannot be maintained.

The theory of the suit is that the plaintiff and defendant have had transactions together, in respect to which the plaintiff is entitled to an accounting and asks judgment for an accounting. Under such circumstances, when unsettled transactions have occurred between parties, it is the right of either one, whether a creditor or a debtor, who deems he has rights to be declared or enforced, to bring an action for an accounting, so that an account may be legally stated and taken that shall be binding upon the parties, and by which present and future difficulties may be avoided.

In the present case, the court, instead of referring it to a referee to take and state the accounts between the parties, proceeded with the hearing of the cause, and the taking and stating of the accounts between them. The accounts, as stated and found by the court, charged the defendant with the sums which had been paid to him by the plaintiff, upon his representations as to the purchase of the stock, and disallowed all the other items which either party presented or claimed against the other at the trial.

The amendment of the complaint, by conforming it to the facts found by the court to be proved, was not such an amendment as comes within the restriction of the Code. It did not change substantially the claim, because the substance of the claim was simply that unsettled transactions existed between the parties, and the plaintiff prayed an accounting. It would gravely prejudice the efficacy of this provision of equity jurisprudence in the administration of justice, if it was held to be a necessary preliminary that the suitor should, unless he accurately set forth his claim, be dismissed from court. The theory of the remedy is that the court when appealed to, will marshal and state and pass upon the accounts between the parties, as they shall be disclosed and established at the hearing, whether before the referee or the court. The origin of the remedy is due to necessity, that when ignorance and fraud or other causes prevent men from properly stating and taking their accounts so as to protect their just rights, a court of equity will intervene to take and state them when its aid is asked, bio stringent mile can be applied as to the statement of this species of claim, as it would be liable to prevent an accounting, because a discovery is a part of the theory of the action.

The amendment granted is especially applicable to the pleadings in this class of cases, for the reason that it is oftentimes only when the account has been taken and stated, that parties can know what their respective claims are, and then by amending the pleadings, conformably, the record is relieved of embarrassment. If in the case at bar, there had been no amendment of the complaint, the plaintiff would have been entitled to his judgment in conformity to the accounting as taken and stated.

The defendant made no application to amend his answer. He appears to have acquiesced in letting the answer stand, it being provided in the order, making the amendment, that it was made without prejudice tu any proceedings already had. It would be inconsistent with well settled principles, that where a defendant acting in a fiduciary capacity, has by untrue statements led his principal to incorrectly describe in his complaint the nature or extent of the. transactions, respecting which he calls the agent to account, that the latter can deprive him of his remedy by disclosing on the trial, his own wrongful acts, and taking a technical advantage of them to defeat justice. Courts do not lend themselves to the furtherance of such views. For these reasons it would seem that the exception of the defendant to the granting of the amendment is not well taken.

The judgment should he affirmed with costs.

Sanford, J., concurred.


source: Caselaw Access Project

author: By the Court.—Curtis, J.

license: Public Domain

text:
    THE BULL’S HEAD BANK, Plaintiff, v. ANDREW J. McFEETERS, et al., Defendants.
    Before Curtis, and Sanford, JJ.
    Decided, May 1, 1873.
    A promissory note made by a party, payable to a firm or copartnership name, and passed to a person, who assumes to be a member of the firm named as payee, is valid in the hands of innocent third parties, who purchased the note for value, and before maturity, against the makers, and also against the party to whom the note was passed by the makers, and who endorsed the same, with the fictitious firm’s name. The latter is liable as an endorser.
    The statute that prohibits the transaction of business by any person in the name of a firm, tha1- does not represent any real partnership or partners (Laws of 1833, chap. 381), and the cases of Swords v, Owens (84 Superior Ot. 377), O’Toole ®. Games (8 Supreme Ot. 93), do not affect the facts or the law in this case.
    At the trial a verdict was direc'ed for the plaintiff for six hundred and thirty-nine dollars and seventy-eight cents, subject to the opinion of the court at general term.
    The plaintiff recovered the verdict against the defendants, as makers of a promissory note, to the order of Willard Felt & Co,

      The cause was heard before a court and jury, upon the following facts, which were agreed to, and submitted as the facts upon the issues made by the pleadings.
    1st. It is agreed that the note set forth in the complaint was signed by McFeeters, Ennis and Carpenter, and passed to Willard L. Felt.
    2d. It is agreed that Willard L. Felt, before the maturity of said note, signed upon the back of the same the name “Willard Felt & Co.,” and passed the same to the plaintiff for value.
    3d. That the same was duly presented for payment and duly protested for non-payment.
    4th. That the plaintiff is a corporation as alleged in the complaint, and that the defendants McFeeters, Ennis and Carpenter were co-partners as alleged in the complaint.
    5th. It is agreed that at the time of the above-transactions there was no such copartnership or company as Willard Felt & Co., or Willard Felt & Company, and never had been such company, and that he was carrying on and transacting business, including that set forth in the complaint and including the receiving and endorsing the said note under the firm-name and designation of Willard Felt & Co., and that the designation “ & Co.” did not then and there represent an actual partner nor partners ; and that said Willard L. Felt was carrying on business in the city of New York, and that he was not a commercial copartnership located and transacting business in foreign countries ; neither had he used such name of Willard Felt & Co., and the business conducted by him as at any time thereafter continued by some one, nor by any copartner, nor by the assigns or appointees of such copartner; neither was any certificate signed and acknowledged before any officer of law authorized to take acknowledgments of deeds, declaring the person dealing and trading under said name of Willard Felt & Co., with his place of abode, nor was such certifícate filed with the clerk of the city and county of New York, in which his principal place of business then and there was, neither was the same published in any newspaper in this State ; neither had said Willard L. Felt business relations with foreign countries.
    6th. It is agreed that Richard Williamson, who was at the time of the above transaction president of the plaintiff and who transacted the business of the same, was ignorant of the fact alleged, that Willard Felt & Co. did not represent a firm or company.

      Moody B. Smith, for plaintiff.

      Richard H. Huntley, for defendant.
   By the Court.—Curtis, J.

The statute prohibits the transaction of business by any person in the name of a partner not interested in the firm, and requires that where the designations " and Company ” or “ & Co.” are used, that it shall represent an actual partner or partners. An offence against these provisions is a misdemeanor, punishable by fine (Session Laws, 1833, chap. 381).

Those defendants who are the makers of the note claim, that in consequence of the designation, “Willard Felt & Co.” used by Willard L. Felt, for carrying on his business in New York, and the note being made payable to the order of “ Willard Felt & Co.” that such endorsement by Willard L. Felt, was not one through which the plaintiffs could derive a title to the note, even though they paid value for it, before maturity and without notice that this designation was unlawful.

These defendants, the makers of the note, insist that the payee was under a legal disability to act, and was without capacity to thus make an endorsement binding in law. The defendants cited the cases of Swords v. Owen (34 Sup’r. Ct. R. 277), and O’Toole v. Garvin (8 Supreme Court R. 94), as determining that a person in the position of Willard R. Pelt could not make a contract binding in law. These cases hold, that where parties transacting business under an unauthorized name, sue to recover for services rendered, or for goods sold and delivered, there can be no recovery, because such rendition of services or sale and delivery of goods are transactions within the prohibition of the statute. The statute by its prohibition deprives the parties violating it through the use of a false designation, from recovering in a court of justice the fruits and proceeds of their own unlawful acts.

There is nothing in the decisions, orín the language of the statute, that implies that persons using this unlawful designation, would not be liable for goods purchased by them, or for services rendered at their request, or for money loaned to them. The object of the statute is to prevent persons from obtaining property or credit under a false pretence, and the courts will not give their aid to a man to enforce transactions made by him, in violation of this law.

The construction claimed by the defendants, is in effect that the courts should enable the violators of the law, to profit by their unlawful acts. The just interpretation of the law is, that while a person is forbidden to transact business under a prohibited title, such prohibition does not deprive innocent third parties dealing with or taking title through him, of their remedy against him. The penalty of the statute is limited to the parties violating it. It devolves no duty on dealers and the public to inquire whether it has been complied with, nor does it impose any penalty upon them for omitting to do so.

Willard L. Pelt, by his wrongful act in the form of his endorsement, of the note in question, cannot affect the right of the plaintiff to recover as against him. He is bound by Ms representation, the endorsement is his, for in effect he had the note drawn to his order, though he used a deceptive designation to have it so drawn, and used the same deceptive designation in endorsing it to the plaintiffs. The plaintiffs simply lose the benefit of a recourse against the supposed person or persons he designated under the words “and Co.” But they lose no recourse against him, by reason of the false pretense in his endorsement, of being in partnership with others.

The makers of the note are not prejudiced by this act of Willard L. Felt. The title to the note passed by his endorsement to the plaintiff ; and the plaintiff stands in the position of innocent third parties purchasing the note before maturity for value, and protected by the statute and the law merchant in their remedy against both makers and endorsers.

There should be a judgment for the plaintiff upon, the verdict.

Sanford, J., concurred.


text:
    THE WHITNEY ARMS COMPANY, Plaintiff and Appellant, v. SAMUEL L. M. BARLOW, Defendant and Respondent.
    Before Curtis, and Sanford, JJ.

      Decided, May 1, 1876.
    In an action brought to enforce a liability of a trustee of a manufacturing company formed under the act of February 17, 1848, based upon an alleged neglect to file and publish reports required under the act, the plaintiff must fully establish and prove the default, and that the debt was incurred previous thereto.
    An admission on the part of the defendant, of the neglect of the corporation to file a report as required by the act, in any one year, does not presume a like neglect in after years, nor does such admission make it necessary that the defendant should prove that the required reports subsequent to the default were duly made and tiled.
    .Appeal from a judgment in defendant’s favor, entered upon a verdict directed by the court.
    The plaintiffs sue to enforce a liability against the trustees of the American Seal Lock Company, for failing to file and publish ieports, as required by § 12 of the act for the formation of corporations for manufacturing purposes, &c., passed February 17, 1848.
    The American Seal Lock Company was incorporated on May 17,1870, and on October 6, 1871, entered into a .contract with the plaintiffs, that the latter should manufacture for, and deliver to them twenty thousand circular railroad locks. The American Seal Lock Company filed its first report on January 18, 1872, and the next on January 17, 1878. The plaintiffs claim that one hundred of the locks were delivered prior to the filing of the report in January, 1872, and that the report filed in January, 1873, states the amount of capital to be three hundred thousand dollars, when in truth, it was four hundred thousand dollars, and that consequently, the trustees became severally liable, under § 12 of the act, “ for all the debts of the company then existing, and for all that shall be contracted before such report shall be made.”
    The defendants urge that there is no evidence of any locks being delivered prior to the filing of the first report, January 18, 1872, that all the-locks delivered at any time were paid for by notes which were renewed, and which renewal notes, viz.: one for two thousand four hundred and seventy-nine dollars and thirteen cents, maturing August 2,1872, and the other for three thousand four hundred and forty-three dollars and nineteen cents, maturing September 9, 1872, constitute the claims contained in the complaint. The defendants also answer that the report of January 17, 1873, states truly the amount of capital.

      D. M. Porter, for appellant.

      W. W. MacFarland, for respondent.
   By the Court.—Curtis, J.

The evidence fails to show that any locks were delivered to the American Seal Lock Co. by the plaintiffs before the filing of the report of January 18, 1872. The witnesses by whom it was attempted to show that one hundred locks had been delivered prior to the filing of the report, appear to have had little or no personal knowledge of such delivery, and the receipts taken by the plaintiff the day of, or the day after, the deliveries, are all dated subsequent to the time of the tiling othe report. The debt for these locks delivered under the contract, subsequent to its execution, can not be said to have been contracted when the agreement was signed (Garrison v. Howe, 17 N. Y. 465).

But if the proofs showed a delivery of any locks during the default of the company prior to such filing of the report, a difficulty might arise as to how far they could be followed, and separated from a series of renewal notes embracing other and subsequent indebtedness, and the penalty of liability thus enforced against the trustees. The liability of the latter being limited not only to an existing debt against the corporation, but to one presently due and sueable, and upon which an action could be commenced against the corporation, it is apparent the plaintiffs’ demand could not be sustained, previous to the maturity of the notes given by the company, and embracing it. These notes matured in 1872, subsequent to the filing of the report of January, 1872.

The plaintiff claims that there is no evidence that the reports of 1872 and 1873 were published as inquired by statute, and that the report of 1873 states the amount of capital three hundred thousand dollars, when it should be four hundred thousand dollars. He insisted that as no report was filed or published in 1871, the presumption of law is, that the default continued until the defendant showed that the report was filed and published, and that it does not appear that any report was ever published as required by § 12 of the Act.

It is the duty of the plaintiff, who sues to enforce a statutory penalty, to make out his case. In his complaint he alleges a violation of the statute by the trustees, in omitting to file and publish these reports, which they by answer controvert. It is true they admit that in the year 1871 they were in default, but such admission carries with it no legal presumption that they were in default in subsequent years. Because a person was guilty of abreach of the statute in January, 1871, the law does not presume him to have been equally culpable in January, 1872, and in January, 1873. The presumption is, that at other times he is innocent, and has complied with the law, until the contrary is established against him. Locus pcsniteniice is not closed upon the first offense, and that it has been availed of the law presumes. If the plaintiff relied to sustain his action upon a default of the trustees in publishing the report, it was his duty to prove such default.

The report of 1873 being similar in form to that of 1872, no question arises in that respect. The objection that it states a less amount of capital than actually existed, is not one that tends to impute bad faith to the trustees, by exaggerating the pecuniary strength of the corporation, nor to call for the most stringent construction in establishing a liability for the penalty.

The act requires the report to “ state the amount of capital, and of the proportion actually paid in.” It appears that on April 9,1872, a stockholders’ meeting was held, at which it was voted to increase the capital of the company, one hundred thousand dollars. A certificate of such action by the stockholders was on the next day filed in the county clerk’s office, and on the same day the trustees met, and voted that the new stock so authorized should not be issued, without the further order of the board. It is in evidence that after this initiatory action to increase the stock, no further steps were taken, and the one hundred thousand dollars new stock was never issued. This appears to dispose of the question, as to whether there was an increase of the capital stock, irrespective of what may have been the power of the trustees, to vote that it should not be issued. In fact, it was never paid into the com pany nor issued, and it would have been an untrue statement, if the trustees in their report in January, 1873, had represented that the amount of the capital was four hundred thousand dollars.

There were no questions of fact at the trial, that should have been submitted to the jury, and none of the exceptions call for a reversal of the judgment.

The judgment appealed from, should be affirmed.

Sanford, J., concurred.


text:
    JAMES O’BRIEN, Sheriff, &c., Plaintiff and Respondent, v. THE COMMERCIAL FIRE INSURANCE COMPANY, Defendant and Appellant.
    Before Curtis and Sanford, JJ.

      Decided May 1, 1876.
    Commission to take testimony.
    The persons who are named in the commission, as commissioners to take the testimony, and to whom the same is directed, or any one of them unless otherwise expressly directed therein, shall execute the commission (3 S. S. § 16, 394).
    Unless a party has an express direction inserted in the commission, to the contrary, any one of the commissioners to whom it is directed may execute it.
    If, however, it should appear to the court, that the execution of the commission by only one of the commissioners, was the result of a scheme to deprive any party or parties of an opportunity to attend upon the examination of the witness, or to have their interests cared for, and their rights protected in regard to such examination, or it was the result of a scheme to abuse or prevent the process of the court in any way, against justice and right, then the authority of the court may be invoked and should ercised to suppress the commission after its return.

      The appeal is from an order denying a motion to suppress a commission issued on behalf of the plaintiff, to take the testimony of Ezekiel S. Candler. Jr., at Iuka, Miss.
    The action is on a policy of fire insurance issued by defendant to Ezekiel S. Candler, Jr., on premises in Belleville, Florida, on which a loss by fire was claimed against several insurance companies in the city of Hew York; and after trial and verdict in favor of the plaintiff in this action, an appeal was taken to the court of appeals, judgments in the other actions abiding the event of the appeal in this action.
    The court of appeals reversed the judgment, sustaining exceptions to the rulings of the judge at the trial in relation to the neglect or refusal of the insured, Candler, to furnish duplicate copies of invoices of goods claimed to have been destroyed in the fire.
    After this adverse decision, the plaintiff applied for an order for a commission to re-examine Candler, the insured.
    A commission was thereupon issued to B. S. Blair, counsellor at-law, at Iuka, Miss., and L. Pope Walker, of Huntsville, Ala., to examine Candler, which is the commission in question.

      William Allen, Butler, for appellants.

      William W. Badger, for respondent.
   By the Court.—Curtis, J.

The defendants claim that they are entitled to have the commission executed before the two commissioners, and present this, as one of their reasons for having the commission suppressed. The statute (2 B. ¡3., § 16, p. 394), directs that “the persons to whom such commission shall be directed, or any one of them, unless otherwise expressly directed therein, shall execute the same.” Unless a party to the suit takes the precaution to have an express provision to the contrary inserted in the commission, it is perfectly competent for any of the persons to whom the commission is directed to execute it.

After a party to the suit has allowed a commission to be issued and executed without this special direction, it is too late, upon the return of the commission, for him to obtain the suppression of it, for the reason that it was executed by but one of the commissioners. Such execution is a compliance with the law, and he cannot take advantage of his own omission, to have the commission executed by all the commissioners.

If, however, as the appellants urge, this execution by but one commissioner, was the result of a scheme to abuse the process of the court, and to deprive them of an opportunity of having their rights protected, in respect to the examination of this witness, then a case is presented, in which the authority of the court may be justly invoked to suppress the commission.

An examination of the papers on the appeal, fails to establish any bad faith in the taking of the deposition of Candler, in the absence of the commissioner Walker, who was named as such, by the appellants. The deposition was taken at Iuka, Miss., by the commissioner Blair, on January 27, 1875, in pursuance of an appointment for that time, made by the commissioner Walker, who was to meet him there, but failed to keep his engagement. Two preceding appointments had been made to take this deposition, and Mr. Walker was notified of them, but did not attend, as he claimed, in consequence of other engagements. To suit his convenience the execution of the commission was delayed nearly a month. It would have been unjust, under such circumstances, to have further delayed taking the deposition.

It is objected, that there is intrinsic evidence in the commission itself, that the testimony was not taken and reduced to writing, within the time stated by Mr. Blair, in his telegraphic dispatch to Mr. Walker, and that it was a physical impossibility to have taken it in that time. A scrutiny of the number of folios of the answers of the witness, excluding the documents embraced or referred to in the answers, shows that a ready and diligent penman could easily, within the time, have reduced them to writing. There is consequently very little force in this objection. The papers fail to disclose evidence, that any undue means were resorted to, or employed, to shape or color the testimony taken.

It is urged by the appellants that several of the answers to the interrogatories and cross-interrogatories, which are enumerated by the appellants, are defective, and that for that reason, the deposition should be suppressed and not received in evidence on the trial. A perusal of these answers does not lead to the conclusion that the commission should be suppressed. What is now objected to as irrelevant, may appear relevant at the trial when connected with other evidence, and where the witness does not answer. Alleging a failure of memory, it is for the jury to determine whether that is the real reason. The appellants do not make it apparent, that they have been prejudiced in the execution of the commission, or that their rights cannot be sufficiently protected by objections to the answers at the trial.

The order appealed from should be affirmed with costs.

Sanford, J., concurred.


author: By the Court.— Curtis, J.

text:
    GARDNER S. SPOFFORD, et al., Plaintiffs and Appellants, v. THE TEXAS LAND COMPANY, et. al., Defendants and Respondents.
    Before Curtis and Sanford, JJ.

      Decided, May 1, 1876.
    EXTRA ALLOWANCE UNDER § 309 OF THE CODE.
    In an action for an injunction, when it is impossible to ascertain a money basis upon which to calculate a percentage, no allowance can be made under this section of the Code (See the cases cited at the close of the opinion of the court).
    In the case at bar, the only matter involved in the action and adjudication upon by the court, was the rights of the plaintiffs, to restrain by injunction the consummation of a contract by the defendants.
    The papers do not show that the pecuniary interest of the parties, in the subject matter of the action, was a question to be settled or adjudicated upon, and the findings of the judge show that he passed upon the controversy, irrespective of any specified amount of pecuniary interest of the parties to the action, and simply upon the respective rights of the parties as a question of law.
    The words of this section of the Code are not broad and full enough to embrace interests remotely or indirectly affected by the decision, but they refer to matters or questions included in the issues and covered by the adjudication.
    Appeal by plaintiffs from an order denying motion ■for an extra allowance.

      George W. Wingate, for appellants.

      Edmund Wetmore, for respondents.
   By the Court.— Curtis, J.

The plaintiffs, as two of the stockholders of the Texas Land Company, on behalf of themselves and such other stockholders as should unite with them, brought this action against the company and certain of its directors, to restrain the defendants from issuing two hundred thousand dollars of debentures of the company, in payment of certain lands, and to restrain the completion of a contract for their purchase, on the ground that such lands were the individual property of the directors, and their purchase fraudulent and ultra vires. No damages were claimed, and this injunction was the sole relief asked.

At the trial no witnesses were examined, and the case was submitted upon agreed findings of fact. These agreed findings of fact, and the answers of the defendants, do not appear in the papers on the appeal. The judge found at the trial, that as the directors of the company owned, or were interested in the' lands proposed to be purchased, that the contract for the same was void against the plaintiffs, and all other stockholders not assenting to such purchase, and without deciding whether such purchase was beneficial or not to the company, granted an injunction against the defendants completing the purchase.

The plaintiffs apply for an -allowance' under § 309 of the Code, upon the “ subject matter involved” in the action. So far as appears by the findings of the judge, the only matter involved in the action, and adjudicated upon at the trial, was the right of the plaintiffs to restrain by injunction the consummation of the contract, made under such circumstances by the directors of the company. There is an affidavit i support of the plaintiffs’ motion, referring to the statement of the plaintiffs in the complaint, that the consummation of this purchase will impair their stock to the amount of one-half of its value. The complaint alleges that the stock is worth two or three times its par value, and it appears that the, plaintiffs have seventy-one shares each. But the papers fail to show the pecuniary interest of the plaintiffs as the question to be settled. It is apparent from the findings of the judge, that he passed upon the controversy irrespective of it.

Consequently,' it is very difficult to find a basis upon which to determine the percentage for an allowance. The latter not being a common law right, the statute must be strictly construed. The capital of the company, in this suit for an injunction against the company and its directors, to restrain the completion of a contract, was not the subject matter of the action, but the alleged right to the injunction was. The capital of the company may have been indirectly affected by the action, or the result of it, but the legislature could not have intended that this capital was to be the basis of ■a per centage for an allowance, and to be distributed in that way, whenever a stockholder obtained an injunction of this character. The words of the Code, “subject matter involved,” are not broad enough to embrace interests that may be remotely or indirectly affected by an action. These words refer to matter material to, and included in the issues and the adjudication.

The same reasoning that tends to show that the capital of the company is not a basis for estimating a percentage, applies with equal force to the two hundred thousand dollars of debentures, that were to be issued in payment for the lands proposed to be purchased, and also to the plaintiffs’ stock. The debentures were not in existence, there was no evidence as to their value, and they were not directly referred to, or incln ed in the adjudication. Neither was the plaintiffs’ stock otherwise involved in the action, further than the holding of it gave him a footing, and put him in a position to seek to have his right to this injunction to protect it heard and passed upon. Even if it was the “ subject matter involved,” there is nothing in the papers on the appeal that supplies data for estimating a percentage for an allowance. Neither is there anything to take this case out of the general rale, that an action simply for an injunction, and where it is impossible to ascertain a money basis on which to calculate a percentage, is one in respect to which there is no provision made by law for an allowance (Coates v. Goddard, 34 Sup'r. Ct. 132: The People v. The Albany & Susquehanna R. R. Co. 5 Lans. 36; Coleman v. Chauncey, 7 Robt. 578; Atlantic Dock Co. v. Libby, 45 N. Y. 499).

The order appealed from, should be affirmed with costs, including disbursements.

Sanford, J., concurred.


text:
    EMANUEL S. SUTRO, et al., Plaintiffs and Appellants, v. JAMES O. FARGO, Pres’t., &c., Defendants and Respondents.
    COMMON CARRIER.
    It seems to he now clearly established that where goods are intrusted to a common carrier for transportation, and there is a loss from a cause excepted by the contract (for example as in the present case by fire),that the onus of showing negligence on the part of the carrier rests upon the party claiming damages for the loss (Lamb e. Camden and A. R. R, Co., 46 JV, 7, 271; Cochran v. Dinsmore, 49 M T, 249),
    The fact of a loss by fire or from the cause excepted in the contract, while the goods are in the custody of the earlier, does not establish a presumption of negligence on the part of the carrier, Where there was evidence of tbe'destrdctioii of the goods by fire, or from the cause excepted by the contract, Without evideace of fault or negligence on the part of the earner, the judge should not direct a verdict in favor of the plaintiff, and against the carrier, but should submit the case of the defence to the consideration of the jury.
    Before Curtis and Sanford, JJ.

      Decided May 1, 1876.
    Appeal by the plaintiffs from a judgment, and from an order denying the plaintiffs’ motion for a new trial.
    The plaintiff's are merchants doing business in the city of New York, as dealers in tobáceo and cigars. The defendants were common, carriers from New York to the Western and Northwestern States, known as “The Merchants’ Dispatch Transportation Company.”
    This action is brought to recover of the defendants the value of cigars and tobacco shipped by defendants’ line on September 30, 1871, to Fred. Dant & Co., at Muscatine, Iowa, and Campbell & Bailey, at Kansas City, Missouri. The goods were shipped under contracts which are set out in the complaint, and admitted by the answer. Under these contracts, loss by fire is excepted. The property was taken in the regular-course of business as far as Chicago, and arrived there on Saturday night, Oct. 7, 1871, at 7:50 p.m. • Car No. 1075 contained the goods consigned to Fred. Dant & Co., which was unloaded at Chicago, and left the depot there the next morning at 10:20 a.m.
    The goods consigned to Campbell & Bailey, were carried to Chicago, -in car No. 2340. This car arrived at Chicago on the same train with car No. 1075, and thereafter all trace of it is lost. No deliveries were made at Chicago on Sunday. On Sunday night, Oct. 8, 1871, the great Chicago fire broke out, and early Monday morning reached the depots, where this property was, and consumed the buildings and their contents.
    On September 30, 1871, the firm of Buchanan & Lyall also delivered to the defendant forty-four packages of plug tobacco, directed to Fred. Dant & Co., Muscatine, Iowa, and to be delivered at Chicago, 111., under the contract set forth in the complaint.
    Before this action was commenced the plaintiffs became the owners of this last-mentioned claim. It was admitted upon the trial, that a proper demand of the goods mentioned in the complaint wms made of the defendants, and before the action was commenced. It was admitted, that the goods were not delivered as required by the agreements. The defendants claimed that the goods were destroyed by the great fire at Chicago, on October 9, 1871, without fault or negligence on their part. The case was submitted to the jury on the questions whether these goods were destroyed by the Chicago fire, and, if so, whether any fault or negligence of the defendants contributed to the loss. The jury found a verdict for the defendants ; and from the judgment entered thereon and from an order entered deny - ing a new trial these appeals are taken.

      W. Gleason, for appellants

      Hamilton Cole, for respondents.
   By the Court.—Curtis, J.

The plaintiffs’ exception to the refusal of the judge to direct a verdict in their favor, is not well taken. There was evidence of the destruction of the goods by fire, without fault or negligence on the defendants’ part, which it was the province of the jury to consider, and which was prop^ erly submitted to them.to pass upon.

The plaintiffs also except to the refusal of the judge to charge that the burden rested upon the defendants to disprove negligence. It seems to be now clearly established, that where goods are entrusted to a common carrier for transportation, and there is a loss from a cause excepted by the contract, for example as in the present case a loss by fire, that then the onus of showing negligence is on the plaintiff (Lamb v. Camden and A. R. R. Co., 46 N. Y. 271 ; Cochran v. Dinsmore, 49 N. Y. 249).

In the present case, the court charged the jury, that the defendants were liable for the loss, if it occurred by reason of their negligence, but that it was for the plaintiffs to prove it. The mere fact of a loss by fire while the goods are in the custody of the carrier, fails to establish the presumption of negligence, on the part of the carrier. The plaintiffs’ exception in this respect is not tenable.

The remaining exception of the plaintiffs is to the instruction of the court to the jury to the effect, that they were authorized to consider whether the defendants. could have taken the goods away; and also whether people could have been collected to do something for a third party.

It is not apparent how this prejudices the plaintiffs. The court gives the jury wide latitude to consider the circumstances and exigencies of this vast conflagration, which is described in the testimony, and the means and probability on such an occasion of saving property. The jury had to consider the question of negligence by defendants, since it was submitted to them to determine. There was no impropriety in view of their passing upon such a question, in the court presenting to their consideration the matters excepted to. There was evidence on the part of the defendants as to the difficulty of saving the building and its contents where the goods in question were, and also as to the impossibility, from the extent of the fire, of concentrating men or cars to remove anything.

But there is another difficulty with the plaintiffs’ case. The evidence at the trial does not show negligence on the defendant’s part. The defendants appear to have fulfilled the obligations they incurred by the contracts. They made no deliveries in Chicago on Sunday, and there is no proof or presumption of law from the proofs that it was their duty to do so.

The testimony in relation to the destruction of the goods, by the burning of the defendants’ building at Chicago, sustains the finding of the jury on that question.

The judgment and order appealed from should be affirmed with costs.

Sanford J., concurred.


author: By the Court.—Sanford, J.

text:
    JOHN D. DUCKER, et al., Trustees, &c., Plaintiffs v. JOHN H. RAPP, Administrator, &c., Defendant.
    principal and surety.
    In the case of a surety for lessees, the landlord is under no obligation to demand of the lessees the rent, nor to institute proceedings to recover the same against the lessees, nor to notify the surety of the non-payment of the rent, before resorting to his remedy against the surety.
    In the case at bar, the undertaking of the defendant’s testator was to pay any arrears of rent that might remain due to the lessor or his legal representatives, and the duty of seeing to it, that the rent was paid, devolved upon, and was assumed by him. His promise to pay in case of default, was express and unqualified, and upon such default, his liability to pay became fixed (McKensic). Farrell, 4 Bos., 192; Turnure v. Hohenthal, 36 N. Y. Superior Ct. 79; McKecknie v. Ward, 58 N. Y. 541).

      Before Curtis and Sanford, JJ.

      Decided May 1, 1876.
    A parol promise of the landlord or his representatives lo inform the executor of the surety, if the rent was not paid, will not vary the obligations of the surety’s executor. It did not operate to exonerate him, if unfulfilled.
    The guaranty was under seal, and until breach could not be discharged or modified by parol (Clough v. Murray, 3 Rob’t 7; Kuhn v. Stevens, 7 Robt. 544).
    The promise was a mere nudum pactum, void for want of consideration.
    Nor was ibe defendant discharged by the omission of the plaintiff to enforce, by execution, judgments recovered against the lessees for the rent, nor by the countermand of said executions.
    By none of the several acts claimed by the defendant to have been done by the plaintiffs, or omissions by them, was the defendant’s rights impaired, nor the obligations of his testator to pay the rent, released or discharged.
    This case comes np on exceptions taken by defendants, at the trial before Hon. John Sedgwick, Judge, and a jury, October 25, 1875. The court directed a verdicfcfor the plaintiffs and ordered defendant’s exceptions to be beard, in the first instance, at general term, judgment in the mean time being suspended.
    A verdict was thereupon rendered in favor of the plaintitfs, for six thousand one hundred and seventy dollars, and fifty-eight cents.
    The action was brought by Margaret Ducker as the widow of Melchior Ducker, deceased, and by the said Margaret Ducker, and others, as executors and trustees under the last will and testament of said deceased, against John H. Rapp, as administrator with the will annexed of John H. Rapp, deceased. The complaint alleges that the plaintiffs respectively are such widow’s executors and trustees, and as such, are entitled to the rents of the real property of which the said Melchior Ducker died seized. It further alleges the execution and delivery of a lease, by their testator to .Doane, Wing, Cushing and Smith, under the date of March 2, 1870, whereby the premises, No. 19 West Houston Street in the city of New York were demised for the term of five years from May 1, 1870, at a rental of six thousand dollars per annum, payable quarterly, on the first days of August, November, February and May, in each year. That the lessees entered but failed to pay the rent as agreed, and that there remained unpaid at the commencement of this suit, four instalments of fifteen hundred dollars each, for the quarters ending respectively, on the first days of May, August, and November, 1874, and February 1, 1875, with interest. It further alleges the execution, on March 2, 1870, by John H. Rapp, defendant’s testator, of an agreement, ££ wherein and whereby, he did covenant and agree to and with said Melchior Ducker and his legal representatives, that if default should at any time be made by said Richard Doane, Human B. Wing, •James W. Cushing, and Robert W. Smith, in payment of said rent and performance of the covenants contained within said lease on their • part, to be paid and performed, that said John H. Rapp would well and truly pay said rent or any arrears thereof that might remain due unto said Melchior Ducker or his legal representatives, and also all damages that may arise in consequence of the non-performance of said covenants, or either of them, without requiring notice of any such default from said Melchior Ducker.” It also alleges the death of John H. Rapp, and the issuance to defendant of letters of administration with the will annexed.
    The defendant, by his answer, admits a sufficiency of assets in his hands and the execution of the lease as alleged in the complaint. But he denies any knowledge, information or belief as to the guaranty, and; avers that he has been discharged from all liability for the payment of the rent reserved in the lease, by the acts and omissions of the plaintiffs, viz.:—

      1. By their refusing an offer, made by the lessees, on or about May 1,1874, to allow them to collect rents from under tenants of the premises, and to apply the same upon the rent thereafter to become due, without discharging the lessees. The answer avers that plaintiffs then knowing the lessees to be pecuniarily embarrassed, refused such offer, without notifying the defendant thereof, and permitted the lessees, while in default, to collect all rents due from such under tenants, and that the amount thus collected was about two thousand three hundred dollars.
    2. By negligently omitting to issue an execution, on two judgments alleged to have been recovered by plaintiffs against the lessees, one for one thousand seven hundred and five dollars and fifty-seven cents for the rent which became due May 1,1874, the other for one thousand six hundred and seventy-eight dollars and five cents for the rent which became due August 1, 1874. The answer avers that by reason of such omission the amount of such judgments, which by a proper execution to the sheriff of the city and county of Mew York, might easily have been collected, was lost.
    3. By staying proceedings on such judgments, and extending the time of said lessees, to pay the same, and the rent for which they were respectively recovered ; and by an agreement, alleged to have been made between the plaintiffs and said lessees, to the effect that if legal proceedings were commenced to collect the rent to accrue on Movember 1, 1874, time to answer should be extended until February 5, 1875. Such agreement is alleged to have been made without defendant’s knowledge or consent.
    4. By agreeing with the lessees under date of October 21, 1874, to accept a surrender of a portion of the premises, from that date until February 1, 1875, and to collect the rental thereof, accruing from under tenants during that period, which agreement is also alleged to have been made by the plaintiffs without defendant’s knowledge or consent.
    It appeared in evidence that since the commencement of this suit the plaintiffs had collected from the lessees, and credited upon the quarter’s rent due May 1, 1874, two hundred and fifty-six dollars and fifty-five cents, and that the rent in arrear with interest, allowing such credit, amounted to six thousand one hundred and seventy dollars and fifty-eight cents.
    The contract of guaranty was proved as alleged.
    It further appeared that in 1872, one of the plaintiffs, John D. Ducker, was requested by the defendant, whose intestate was then living, to let him know, if the rent was not paid, and said he would do so.
    It further appeared that the plaintiffs, in this action, as executors of the will of Melchior Ducker, but not in their capacity respectively of his widow and the trustees appointed by his will, brought suit against the said lessees, in the supreme court, on the 26th day of June, 1874, for the rent due May 1, 1874, and on the 4th of August, 1874, for the rent due on the 1st of Aug-gust in that year. The complaint in each of such suits was defective and demurrable for insufficiency. Wing, one of the defendants, appeared, however, in each suit and put in an answer. Subsequently, and on the 6th October, 1874, no affidavit of merits having been filed in either suit, the attorney for the plaintiffs therein took inquests in both, and thereupon on the same day, entered up judgment and issued execution. The executions were received by the sheriff at 3.50 p.m. of that day, but at about half past three o’clock on the same day, October 6, the attorney for the j udgment debtors obtained an order to show cause why such inquests should not be set aside, and staying proceedings, meanwhile, under such judgments. This order was served on the sheriff at his office a little before four o’clock and just after he had received the executions. The inquests were subsequently opened by an order of court, made October 9, 1874, but the judgments were allowed to stand as security, and the stay of proceedings thereon was continued.
    On October 21, 1874, a stipulation was entered into by and between the parties to said suits, to the effect that the executions therein should be countermanded ; that all proceedings upon the first judgment should be stayed until November 25, 1874. and upon the second judgment, until January 10, 1875; that in case legal proceedings were commenced to collect the rent claimed to be due November 1, 1874, the time for defendants to answer therein, should be extended until February 5, 1875. Such stipulations on the part of the plaintiffs in said suits were conditional upon the observance, by defendants therein, of certain stipulations on their part, among which were the payment of the said judgments respectively, less certain sums paid as costs in opening the inquests, the first on November 25, 1874, the other on January 10, 1875. The said stipulation also accorded to the plaintiffs in said suits the right and privilege of collecting from under tenants of the premises the rents thereafter accruing up to February 1, 1875, applying the same, if collected, toward the payment of such judgments.
    By the will of Melchior Ducker,' his widow, and the trustees thereby appointed, became entitled to the rents of the real estate whereof he died seized. No interest in, or right to collect such rents passed to his executors, as such.
    At the close of the evidence, defendants’ counsel requested the court to charge the jury, (1) that the stipulation, above mentioned, operated wholly to discharge the liability of the defendants on the contract of guaranty, made by their testator; (2) that such stipulation, at the least, operated to discharge the defendant as surety as to the quarters’ rents, accruing respectively May 1, 1874, August 1, 1874, and November 1, 1874; (3) that the omission and refusal of plaintiffs to accept the proposition of the lessees, to yield to plaintiffs all the rents from under tenants (without informing defendant) operated to discharge defendant; (4) that the omission and negligence of plaintiffs in not collecting the judgments recovered by them for the two quarters’ rent and their countermand and release of the executions therein issued, then liens on the property of the lessee Wing, all without any notification or information thereof to defendant, operated to discharge defendant; (5) that by the act of plaintiffs in resuming possession and control of a portion of the premises under the stipulation and the terms of the stipulation in that respect, the terms of the lease were varied, and defendant thereby discharged; (6) that by the promise of the plaintiff, John D. Ducker, to notify defendant or his agent, John C. Rapp, of any failure of the lessees to pay rent, and by his failure to do so during the accruing of the four quarters’ rent sued for, the defendant was discharged ; (7) that by such promise the terms of said guaranty were altered and plaintiffs are estopped from claiming rent so accruing.
    The court refused, to charge each and every such proposition, and defendant duly and separately excepted to each and every such refusal.
    The defendant then asked to go to the jury upon the evidence offered, as tending to prove the facts, upon which each and every such proposition was asked to be charged. The court refused so to permit the defendant to go to the jury, and defendant duly excepted to such refusal.
    The defendant then moved that the court direct a verdict for the defendant. The court denied the motion, and defendant duly excepted,

      Joseph W. Dixon, for plaintiff.

      Edward M. Shepard, for defendants.
   By the Court.—Sanford, J.

The plaintiffs were under no obligation to demand of the lessees the rent reserved by the lease; or to institute proceedings against them for its recovery; or to notify defendant of its non-payment, before resorting to the remedy against the defendant, as the personal representative of their surety. The undertaking of the defendants’ testator to pay any arrears of rent that might remain due to the lessor or his legal representatives, without requiring notice of default, was express and unqualified. The duty of seeing to it that the rent was paid, was, by the contract, devolved upon and assumed by him. His promise was to pay, in case of default, not after demand or notice, or failure to collect. The right of action against him, and bis legal representatives, accrued immediately upon the lessee’s default, and his or their liability then and thereby became fixed (McKensie v. Farrell, 4 Bos. 192 ; Turnure v. Hohenthal, 36 N. Y. Superior Ct. R. 79 ; McKeeknie v. Ward, 58 N. Y. 541). The promise of the plaintiff, John D. Ducker, to let the defendant’s son know if the rent was not paid, did not vary the rights and obligations of the parties, in this respect. It was made, if at all, in 1872, long after the contract, and was purely gratuitous. It did not operate to modify the contract of suretyship, or to exonerate the defendant from the obligations thereof. The guaranty was under seal, and until breach, a contract under seal cannot be discharged or even modified by parol (Clough v. Murray, 3 Rob't. 7; Kuhn v. Stevens, 7 Robt. 544). It was, moreover, a mere nudum, pactum, void for want of consideration.

Nor was the defendant discharged by the omission of the plaintiffs to enforce by execution the judgments recovered by them on October 6, 1874, nor by the countermand of such executions. Proceedings under the judgments were stayed by order of the court in which they were rendered, before such executions were issued to the sheriff. No levy was made, and no lien was acquired under them. The plaintiffs impaired no right of the defendant, in countermanding executions which they were prohibited from issuing by an order of the court, even though such executions were issued in ignorance of that order. The judgments were allowed to stand merely as security, and it is apparent that they could never have been sustained or enforced, had the suits proceeded to trial, after the inquests were set aside. The complaints showed no cause of action, and were demurrable for insufficiency. They would have beau dismissed on motion, had the cases been brought on to be tried. If, therefore, a technical lien was acquired by issuing the executions, the defendants sustained no injury by reason by its abandonment. The ground on which a surety’s liability^ is discharged by the surrender of securities held by the creditor of his principal, is that his right of subrogation is thus impaired or adversely affected. His contract is strietissimi juris, and the creditor can not be permitted to interfere with security to the benefit of which he is entitled. But the surrender of a security operates as a discharge only pro tanto. Hence, if an apparent lien be, in reality, invalid, or not susceptible of enforcement, either by the creditor, or byr the surety on succeeding by subrogation to the creditors’ rights, the liability of the surety is not affected by its extinguishment. Thus in Blydenburgh v. Bingham (38 N. Y. 371), if was held that the surety of a judgment debtor was not discharged by the release from the operation of the judgment, of lands in which it was supposed that the judgment debtor might have some contingent interest, when it appeared that, in fact, he had no such interest, and that the judgment did not constitute such lien. . So here the judgments upon which the executions were issued, standing merely as collateral security for such recovery as might thereafter be had in the suits wherein they were obtained by default, and it being apparent that no recovery could have been had in such suits, for the reason that the complaints therein did not state facts sufficient to constitute a cause of action, it is manifest that if the defendant had paid the debt of his principal, and had thus been subrogated to all the rights and remedies of the plaintiffs, he could have derived no benefit or advantage from such executions, and he wa,s, therefore, in no wise prejudiced by their countermand. Again, the property, or partnership interest of Wing (one of the lessees and judgment debtors), upon which the executions in question are claimed to have constituted liens, is shown to have been of no value, by reason of the insolvency of his firm.

He failed in the latter part of October, 1874, almost immediately after, and notwithstanding the countermand of these executions, and in consequence of judgments against him which he could not pay. He testifies that at the time when the executions were issued, he believed himself able to pay his debts in full, but that his judgment and belief in that respect were based upon a valuation of his property which has since proved to be erroneous. There was no conflict of testimony upon this or any other question of fact, and the jury would not have been justified in finding from the evidence that the defendant sustained an appreciable loss by the countermand of the executions, even supposing them to have been regularly issued, and to have constituted valid liens.

The stipulation of October 21, 1874, which is claimed to have constituted a valid extension of the lessee’s time of payment, was entered into by and between the parties to the suits, in which the judgments above mentioned were recovered by default, and was signed on behalf of the plaintiffs in such suits, by their attorneys of record therein. It may well be doubted whether such attorneys had the right to represent or act for the plaintiffs in any other capacity, than that of executors, the suits having been brought by the plaintiffs in that capacity alone. As executors, the plaintiffs had no right to, or interest in the rents, and could make no valid agreement with respect to them. Representing them in that capacity only, their attorneys may well be supposed to have exceeded their authority, in attempting to contract for an extension of the time within which such rents might be paid.

Only the widow and trustees under the will had power over the rents, and an attorney, retained by and' appearing for them, to prosecute a suit in their capacity of executors of the will, can scarcely be presumed to have been duly authorized to represent them individually or in their capacity of trustees. There is no evidence of authority in the attorney to stipulate at all, except such as maybe inferred ex mrtute officio. And without express authority, an attorney has no right to bind his client by a promise of forbearance. Certainly no such authority extends to matters outside of the suits, in which the stipulation is entitled. The true test in such cases, is the inquiry, whether upon subrogation, the surety would have the right to proceed at once against the principal. I think the pendency of actions in favor of plaintiffs, as executors merely, would not operate in abatement of a suit brought by the surety after payment of the rent to the widow and trustees, as such; nor wpuld the surety be bound or affected by any stipulation, entitled in such suit and signed by the attorneys of record of the plaintiffs therein, even with respect to the subject matter of such suit; much less would his rights or remedies be impaired, by a stipulation entitled in such suit, and signed by the attorneys of record therein as respects matters wholly dehors the record.

But, assuming the sufficiency of the attorney’s authority to stipulate, the stipulation itself does not in terms purport to extend time of payment of the rent. It provides that “ all proceedings on the first judgment are to be stayed until November 25, 1874, and upon second judgment, until January 10, 1875. By the previous order of October 9, all proceedings under both judgments were stayed indefinitely, and the defendants were allowed to come in and defend. As we have already observed, there could have been no recovery in favor of the plaintiffs, had the suits been contested. The plaintiffs sued as executors, and as such, they neither had, nor averred any right or title to the rents. The effect of the stipulation, therefore, was rather to limit than extend the stay, and thus to hasten rather than retard collection. Besides, it affected only the particular remedy, and did not impair the right. The remedy was valueless; the stipulation rendered it effective. There was, however, in the stipulation nothing to preclude the discontinuance of the suits, or the commencement of other suits by the plaintiffs in their capacity of widow and trustees,—or by the defendant here, had he acquired the rights of the widow and trustees by subrogation. I do not think the stipulation can be construed as a valid extension of time of payment of the accrued rent, and with respect to the rent accruing in November following, it was clearly beyond the authority of the attorneys.

The refusal of the plaintiffs to undertake the collection of the rent payable by the lessees, from the under tenants of such lessees, is a matter of which the surety has no right or reason to complain, nor was he entitled to any notice, either of the offer or its refusal. Under the authority of the recent case of Clark Admr. v. Sickler Admr., N. Y. Weekly Digest, vol. 232, April 17, 1876 (decided by the court of appeals, February 23, 3876), no mere indulgence to the debtor, or omission to act on the part of the creditor, in the absence of an express request from the surety, operates to effect the surety’s discharge. In that case, the maker of a guaranteed, note went to the holder with the money due thereon, and offered to pay it, but the holder declined to receive the money, giving as a reason that he had no use for it, and requested the debtor to keep it. The guarantor was held liable, notwithstanding the subsequent insolvency of the debtor. The case seems to be the most rigid adjudication of a surety’s liability which has hitherto been made in the courts of this State, and as an authority, it j ustifies fully the actions and omissions of the plaintiffs herein.

Judgment ordered upon the verdict, with costs,

Curtis, J., concurred.


text:
    WILLIAM J. JONES, Administrator, &c., Plaintiff and Appellant, v. JOHN ROACH, Defendant and Respondent.
    NEGLIGENCE, OF MASTER, CAUSING THE DEATH OF A SERVANT.
    Contributory negligence of servant.
    In the case at bar, the servant, with others, met their death by the breaking of a bridge between a vessel and a wharf, over which they were moving heavy articles. This bridge was known to be weak and defective by the servants using it, and its use previous to the occasion of the accident, had. been with blocks placed under it, to strengthen the same, and thus it had borne a weight of eighteen hundred pounds. On the occasion of the accident, the men, without any directions from their superiors, used the bridge without the blocks, and under a weight of about two hundred pounds it broke, and fell with the men, and they were drowned.

      Held, that the negligence of the servants in using the bridge, with full knowledge of its condition, and without using the props or blocks under the same as in its former use, contributed to the injury, and the master was not liable.
    The cases hearing upon this question, considered and cited, and the following conclusions of law, adopted by the court, as applicable to this case:
    When a servant is fully aware of the difficulties and hazards be is required or expected to encounter, and without objection or protest, undertakes or continues in a hazardous occupation, subjecting himself voluntarily to danger that might be reasonably expected by him, from his knowledge of the facts and circumstances in the premises, he should not be exonerated from the consequences of his own rashness and negligence.
    If in the performance of a hazardous service, he negligently omits to adopt the usual and proper precautions which have been previously required by the master, and which his own experience in the service demonstrated to be useful, as tending to arrest danger or diminish the risks of the service, his want of care cannot be excused by a supposed reliance upon the prudence and judgment of his master, whose wise suggestions and directions he willfully disregards.
    Before Curtis and Sanford, JJ.

      Decided, May 1, 1876.
    Appeal from a judgment dismissing the complaint, and directing the recovery by defendants of one hundred and eighteen dollars and fifty-seven cents, costs.
    The action was brought by the plaintiff as administrator of James Jones, deceased, pursuant to Laws of 1847, ch. 450, to recover the damages alleged to have been sustained by the next of kin of decedent by reason of his death, through the wrongful act, neglect or default of the defendants.
    The deceased was a laborer, employed by defendants, and was engaged on the morning of April 30, 1874, in the work of removing her engines, boilers, machinery and iron, from the steamship Ocean Queen, then lying at defendants’ wharf, at the foot of Ninth street, Bast River, in the city of New York. The defendants were ship builders,—and the laborers employed by them about this work, were under the immediate supervision and direction of Frederick H. Ricketts, who was also in the service of the defendants, having charge of the work of taking the machinery, &c., out of the ship. By Ricketts’ direction, the ship’s “ bridge,” formerly used by her officers, as a lookout station, was put across from the vessel to the dock, and was used in sliding the buckets óf the ship’s wheels and other material from her deck to the wharf. This bridge was about twenty-five feet long, with an iron railing on each side, supported by stanchions, its body or flooring consisting of plank an inch thick, supported or stayed on each side by joists four inches in diameter, to which the stanchions of the railing were attached. The bridge was old and rotten, and was broken by a gliding, bucket on the first day it was used for this purpose. By Ricketts’ orders it was spliced at the broken place, and its use continued. A separate gangway, properly constructed, had been provided by the defendants, and was still in nse, by which adequate communication between the ship and shore could be effected, but, by Ricketts’ direction, the work of discharging the iron, &c., was performed by means of this bridge, and not by the gangway as had previously been done. About three weeks after the first fracture, and on April 30, 1874, while Jones, the plaintiff’s intestate, and several other laborers in the employment of defendants, were engaged in carrying over it, from the ship to the shore, a plate of grating, the bridge broke again, and plaintiff’s intestate and two other men were precipitated into the water and were drowned.
    The defective condition of the bridge was manifest and palpable. The wood was rotten and crumbling, and could be crushed in the hand. Anybody could look at it, and see that it was old and rotten. Jones was present, assisting another laborer in sliding down some of the material removed from the ship, when the first fracture occurred. Afterward, it was the practice to insert blocks under the bridge at the point, near the lower extremity, where it crossed the string-piece of the wharf, the effect of which was to diminish the elasticity or spring of the bridge, and thus prevent it from breaking. Under Ricketts’ direction, these blocks were fixed, from time to time, by the men engaged in taking things over the bridge, and Jones often assisted in their arrangement. Thus.blocked, the bridge had sustained a weight exceeding eighteen hundred pounds, two days before the accident, hut it broke under the weight of about two hundred pounds, when not blocked, the men, Jones included, having gone to work, that morning, in the absence of Ricketts, without strengthening the bridge with blocks, according to the accustomed practice.
    At the close of the plaintiffs’ case, the judge, on motion of defendant’s counsel, dismissed the complaint, on the ground that Jones’ negligence in not blocking the bridge, or in going upon it to work, before it was properly blocked, contributed to the accident which resulted in his death.
    The plaintiffs’ counsel duly excepted.

      Benjamin F. Russel, for appellant.

      Henry Brace, for respondent.
   By the Court.—Sanford, J.

The only question presented on this appeal, is that which was determined adversely to the plaintiff by the learned j udge, before whom the trial was had, when he dismissed the complaint, on the ground that the negligence of the plaintiff’s intestate contributed to the accident which caused his death. The rule of law applicable to cases of this description, is too well settled to require, or to admit of discussion. The only difficulty or embarrassment arises in its application to the varying circumstances of particular cases. The rule is that in actions upon the case for negligence, a recovery can be had only when the injury is caused solely by the defendant’s neglect.

“ If negligence of the plaintiff ” (or, in actions under the statute of 1847, as amended in 1849, if the negligence of plaintiff’s decedent), “contributing to the injury, clearly appears from all the circumstances, or is established by uncontroverted evidence, it is the duty of the court to take the case from the jury and non-suit the plaintiff” (Weber v. N. Y. Central R. R. Co., 58 N. Y. 451).

“It belongs to the definition of the canse of action, that the injury must have been occasioned solely by the negligence of the defendant; and either by direct proof given by the plaintiff, or from the circumstances attending the injury, the jury must be authorized to find, affirmatively, that the person injured was free from fault which contributed to the accident, or the action is not maintained (Reynolds v. N. Y. Cen. and H. R. R. Co., 58 N. Y. 248).

There can be no doubt that an employer is under obligation to use all reasonable precaution in providing for the use of his laborers and servants such facilities and appliances for the performance of their duties, as will not endanger their persons, nor can it be questioned that a servant has the right to rely upon the prudence and caution of his employer, or the agent of his employer, to whose orders he is subject, in so far as the use of implements furnished for the performance of his duties is concerned, unless the dangerous or defective character of such implements is so manifest, that a man of ordinary prudence and intelligence, engaged in similar pursuits, would, on mere inspection, be deterred from using them. Any abuse of the confidence which a laborer has the right to repose in the reasonable care and caution which his employer is under obligation to exercise in his behalf, should subject the latter to liability for any damages arising therefrom. But when the servant is fully aware of the difficulties and hazards he is required, or expected to encounter, and without objection or protest, undertakes or continues in a hazardous occupation, subjecting himself voluntarily to danger that may reasonably be anticipated, and of which he is fully aware, he should not be exonerated from the consequences of his own rashness or negligence, by a mere blind trust in the superior wisdom of his master, or his master’s agent, to whom he is subordinate ; a fortiori, if in the performanee of a hazardous duty, he negligently omits to adopt the usual and proper precautions which have been previously recommended or required by the master, or the master’s representative, and which his own experience has shown to be useful, as tending to avert or diminish the risks to be encountered, his want of care cannot be excused by a pretended reliance on the prudence and judgment of his superior, whose wise suggestions he wilfully disregards. It appears from the evidence of numerous witnesses for the plaintiff, that the condition of the bridge by the breaking of which the plaintiffs’ intestate lost his life, was that of palpable insecurity; that the plaintiffs’ intestate was well aware of this fact; that he had already been warned by a previous occurrence of the kind; that subsequently to that occurrence, the practice of blocking the bridge, so as to diminish its tension, and decrease its fragility, had been adopted; that he had himself often assisted in adjusting the blocks, but, in common with his associates, voluntarily went to work without adopting this very simple expedient, at seven o’clock on the morning of the accident, and the bridge broke within five minutes thereafter.

The testimony of Patrick Daly upon this point is very explicit. He testified to having been present when the accident occurred. Seven o’clock was the hour for commencing work. It was about three or four or five minutes after seven when the bridge broke. Witness and three others, besides Jones, were on the bridge at the time, taking out a plate of grating that belonged to the ship.

Being cross-ex mined, he testified as follows :

“ Q. Do you remember that when you were at work there, before this day of the accident, that this bridge was blocked up underneath, when it was being used? A. Yes, sir ; it had been blocked at the string piece at the edge of the dock.
“Q. Did you notice that, on this morning of the accident, it was not blocked at the string piece? A. Ho, sir; it was not blocked.
“ Q. Describe to the jury, if you please, how it was blocked up ? A. Why, by blocking it on the string piece ; we took the spring out to keep it from breaking. We were bringing down heavy weights on it, and we blocked it, time after time, to take the spring out to keep it from breaking.
“Q. How long before the accident had you and Jones been working, in taking things over that bridge ? A. I had been working for five or six weeks, along with Jones.
“Q. Taking these heavy articles over this bridge? A. Yes, sir; I took eighteen hundred pounds, a donkey engine down on the bridge, and it did not break, about two days before that, and then something over two hundred pounds broke it.
“ Q. How did it happen that you began to work at the bridge, that morning, before it was blocked up ? A. We went to work on our own account, that morning ; we were working at the same job the day before.
“ Q. But why did you go to work without waiting to have it blocked it ? A. It was our own loss, of course; we went to work without its being strengthened, or anything else, that morning; we went to work ourselves.
“ Q. When you said 1 when we were taking things over the bridge we fixed the blocks,’ who did you mean by ‘we?’ A. The party of men who worked in it.
“Q. Who were the men who were engaged in shifting the blocks in the way you have described, when the tide rose or fell ? A. Mr. Eicketts was our boss on that.
11 Q. Who were the men who were doing it? A. John Polan and me, and Ferguson and Jimmy Jones.
“ Q. Was Jimmy Jones the man who lost his life? A. Yes, sir.
By Mr. Russell: Q. Do you mean to say that you ever saw James Jones put a block under that bridge % A. Why, certainly, he put along with me.
“ Q. Did you ever see Jimmy Jones take the block and put it under the bridge ? A. Yes, sir; along with me, he did it, too.
“Q. Did you ever see him do it ? A. Yes, sir.
The Court: Do you mean he himself alone, or with others ? ”
“Mr. Russell: Either way.”

It thus appears, by the uncontradicted testimony of a witness called by the plaintiff, that the usual and customary expedient of blocking the bridge, which had been resorted to, and had proved effectual previously, was on this occasion omitted through the culpable oversight, indifference and neglect of decedent and his associates, who were well aware of the importance and necessity of adopting such a precaution. In the recent case of Plank, administrator, &c., v. The New York Central and Hudson River R. R. Company (60 N. Y. 607), which is in some respects analogous, it was held that the question of contributory negligence was properly submitted to the jury, and that there was no error in refusing to non-suit the plaintiff; but the ground upon which the decision was put, clearly distinguishes the case from that now under consideration, and impliedly recognizes the principle which must govern in its determination. In that case, deceased, a brakeman in the employ of defendants, was, at the time of the accident, in the act of coupling additional cars to the train on which he was employed. In so doing, he stepped into a sluice which ran under the tracks, across which a board or plank was laid ; otherwise the trench was left open. The train of the deceased had been in the habit of stopping there, and he knew of the trench, which had been there over ten years, in the same condition. The accident was in the night season, and there was snow on the ground. It was held that defendant was bound to provide an ordinary and reasonably safe place for the performance of the work of coupling the cars, and that the evidence of defendant’s negligence was sufficient- to require the submission of that question to the jury; also, that the fact of the knowledge of deceased of the existence of the trench, was not sufficient to charge him, under the circumstances, with contributory negligence, as the act in which he was engaged necessarily required his whole attention and thought. In the case at bar, the nature of decedent’s emploj'ment was not such as to engross his attention, to the exclusion of all thought of the hazards he encountered. On the contrary it was his duty, in common with his fellow-servants, to diminish those hazards, as well in the interest of Ms employer as for Ms own sake ; a duty which, in common with them, he wholly neglected to perform. He was not only well aware of the insecurity of the bridge, but had at his hand the means of imparting to it some degree of stability, and on previous occasions had been required so to do. There was nothing in the nature of his employment to distract his attention from the exigencies of the case. Ordinary care for Ms own safety, as well as a proper regard for his employers’ interests should have induced him to adopt the precautions which experience had proved to be necessary, and which he had himself been accustomed to use. Under these circumstances, I think the death of plaintiff’s intestate cannot be attributed solely to the defendant’s neglieence ; and that the evidence would not warrant an affirmative finding that the deceased, “ was free from fault which contributed to the accident.” If not, the action cannot be maintained, and the non-suit was properly directed.

The judgment should be affirmed with costs.

Curtis J., concurred.