author: Lawrence, J.:

text:
    NATHANIEL A. JEFFRAS and others, Appellants, v. THE McKILLOP & SPRAGUE COMPANY, Respondent.

      Answer—Irrelevant and redundant matter—what is.

    This is an action of libel, brought against the defendant (a corporation created to publish books, pamphlets and newspapers relating to commercial credit), for telegraphing to a firm in Cincinnati, “ It is rumored that Jeffras, Seely & Co. [the plaintiffs] are in trouble.” The defendant in its answer alleged that, for the purposes of its business, it had entered into contracts with other commercial agencies, among which was the firm in Cincinnati, by which they were to furnish to each other information concerning the business and commercial standing of any person or firm within the territorial districts, or elsewhere, within which either of the parties to the contract might carry on business; that the words complained of, were composed and telegraphed as a warning, and for information to said firm, in confidence, and for their business, and not to be used in any other way. Held, that a motion to strike out these allegations as irrelevant and redundant, was properly denied. That, even if the facts pleaded did not constitute a justification, they were proper to be taken into consideration as mitigating circumstances.
    Appeal from an order denying a motion to strike out a portion of the defendant’s answer as irrelevant and redundant. The action is brought against the defendant for damages, by reason of the defendant’s having telegraphed to the firm of Tappan, McKillop & Co., in Cincinnati, the words, “ It is rumored that Jeffras,. Seely & Co. [the plaintiffs] are in trouble.”
    Other facts are stated in the opinion.

      Charles A. Jackson, for the appellants.

      Julien T. Davies, for the respondent.
   Lawrence, J.:

This is an appeal from an order denying a motion, made on the-part of the appellants, to strike out certain portions of the answer of the defendant (respondent), as irrelevant and redundant. The-action is for a libel, alleged to have heen maliciously composed and published of and- concerning the plaintiffs by the defendant.The defendant is a corporation, created and organized under the-laws of the State of New York, whose business is that of printing- and publishing books, pamphlets and newspapers, relating to commercial credit, and the furnishing of information respecting the same. The plaintiffs were merchants, doing business in the city of' Cincinnati, in the State of Ohio, at the time of the publication of" the alleged libel. The portion of the answer which it is moved to strike out, alleges that the defendant, for the purposes of its-business, has connected with it other commercial agencies, with which, including the firm of Tappan, McKillop & Co., it has contracts that each shall furnish to the other, to enable them to carry out their contracts with their respective subscribers, information that either may need concerning the business and commercial standing of any person or firm, within the territorial district, or elsewhere, within which either of the parties to the contract may carry on business. That such a contract existed between the-defendant and the firm of Tappan, McKillop & Co., of the city of Cincinnati, prior to the 1st day of July, 1873, the date of the-alleged publication, which contract had ten years to run from the-1st of July, 1870. It is then averred that the words complained of, were composed and telegraphed as a warning, and for information to said firm, and in confidence, and for their business, and were not to be used in any other way. And also for the purpose-of eliciting a reply from said firm, that would give the defendant-the information it required, about the commercial standing and credit of the plaintiffs, in order that the defendant might place upon its books a true and correct account about the plaintiffs, and correct the rumor as to the embarrassments of the plaintiffs, if such rumor were untrue. Also, that the plaintiffs were at the time of the alleged publication, subscribers to the commercial agency of Tappan, McKillop & Co.

It is objected, on the part of the respondent, that the order in question, rested within the discretion of the court, and that an appeal will not therefore lie to the General Term. I think that the decisions of the Court of Appeals, in the very recent cases of Livermore v. Bainbridge, and in Gray v. Fisk, have settled definitely, that, even in cases where the motion is addressed to the discretion of the justice at the Special Term, an appeal lies to the General Term; and that in such case, if the justice decides wrongly in the first instance, it is not only the right, but the duty, of the General Term to correct his error. But I am not satisfied that there was any error committed in the disposition which was made of this motion at the Special Term. An answer is said to be irrelevant, when the matter which it sets forth, has no bearing on the question in dispute — does not affect the subject-matter of the controversy, and can in no way affect or assist the decision of the court, The business in which the defendant was engaged, was a lawful business, and communications made by it, in good faith, to its subscribers, are held to be privileged communications. The matter set forth in the complaint as libelous, consisted of a communication by the defendant to another mercantile agency, with which the defendant alleges it has a contract, by which each was to supply to the other any information that either might need, or that might be of use to either in their business, or to enable them to carry out their respective contracts with their subscribers.

Without determining definitely whether such communications are, within the rule laid down in Ormsby v. Douglass, privileged communications, I think that the defendant is entitled to allege in its answer the circumstances under which the alleged libelous matter was published, for the purpose of showing the nature and character of the publication, and that, in that view, it cannot be said that the matters contained in the allegation sought to be stricken out, have no bearing upon the question in dispute, or that they do not affect the subject in controversy. The portion of the answer objected to, is not therefore irrelevant or redundant.

Again: Under the provisions of section 165 of the Code, a defendant is entitled to allege in his answer, both the truth of the matter charged as defamatory, and any mitigating circumstances. The portion of the answer complained of, is alleged both by way of justification and mitigation. If not good as a justification, it certainly contains matter proper to be taken into consideration as mitigation. And if proper to be pleaded for any purpose, the matters contained in the allegation cannot be considered as irrelevant or redundant. I am therefore in favor of affirming the order of the Special Term, with costs.

Davis, P. J., and Daniels, J., concurred.

Order affirmed with costs.

       47 How., 354.

       53 N. Y., 630.

         Lee Bank v. Kitching, 11 Abb., 435; Cahill v. Palmer, 17 id., 196; Fabricotti v. Launitz, 3 Sandf., 743.

       Ormsby v. Douglass, 37 N. Y., 477.

       37 N. Y., 477.

       Cases, supra.

       Bush v. Prosser, 11 N. Y., 347; Bisbey v. Shaw, 12 id., 67.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    JOHN FIELMANN and another, Plaintiffs, v. WILLIAM BRUNNER and another, Defendants.

      English bankruptcy act—composition deed executed in pursuance of—Attachment— lien of.

    This action is brought to recover the amount of a draft, and for goods sold and delivered. The defendants being non-residents, an attachment was issued, and a levy made. Subsequently they appeared, and, upon giving an undertaking obtained a discharge of the attachment. The answer set up as a defense, a deed of composition, executed under the provisions of the English bankruptcy act. This deed, which was executed after the commencement of this action and the levy under the attachment, provided that nothing therein contained, should discharge any lien or other security held by any of the creditors. All of the parties at the times mentioned were residents of England. Held,
      that, by the levy under the attachment, the plaintiffs acquired a specific lien upon the property attached, and that they were entitled to enter judgment in this action, to enable them to proceed against the sureties on the undertaking.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term.
    The facts are stated in the opinion.

      A. J. Vanderpoel, for the appellants.
    The levy under the attachment did not give a lien within the meaning of the deed. (Matter of Bellows, 3 Story, 428; Ex parte Foster, 2 id., 131.)

      Andrew Boardman, for the respondent.
    The plaintiff acquired a lien by the levy. (Ex parte D'Obree, 8 Ves., 82; Ames v. Wentworth, 5 Met., 294; Ives v. Sturges, 12 id., 462; Watkins v. Pinkney, 3 Edw. Ch., 533; Smith v._, 4 id., 653; Macy v. Jordan, 2 Den., 570; Rhoads v. Woods, 41 Barb., 471; In re Allen, 5 Law Reporter, 362; Holyoke v. Adams, 2 N. Y. S. C. R., 1; Rinchey v. Stryker, 26 How., 75.)
   Brady, J.:

This action was commenced on the 8th August, 1867, to recover the amount of a draft, accepted by the defendants, for £750 sterling, and for goods sold and delivered, amounting in price to £116 9s. sterling. The defendants being non-residents, it was commenced by attachment, which was issued on the day named ; and on that day, the eighth August, a levy was made, sufficient to satisfy the judgment herein, or the plaintiffs’ claim. The defendants appeared, and upon giving the undertaking required for that purpose, obtained a discharge of the attachment, and a return of the property levied upon. The defendants, on or about the 20th December, 1867, by answer, set up as a defense herein, a deed of composition, alleged to have been executed by them, under the provisions of the English bankruptcy act, to one James Powell, a trustee for their creditors. The deed is dated the 2d of September, 1867, and was executed, therefore, nearly a month after this action was commenced, and the attachment granted, and a levy made under it. All of the parties, at the times mentioned, were residents of England. The deed, by the bankrupt law, is necessarily predicated of the assent of a majority of the creditors in number, representing three-fourths in value of the creditors whose debts respectively amounted to ten pounds and upward. The plaintiffs were non-assenting creditors. Under the pleadings, it became necessary for the defendants to sustain the deed, and to prove, therefore, that all the requirements of the act were complied with. This they attempted to do. It appears, however, that the composition deed provided that nothing therein contained, should discharge or prejudice any mortgage, lien, or other security, held by any of the creditors, but the creditors holding any such security, should be entitled only to the composition, upon any balance of their respective debts, remaining after giving them credit for the value of the security respectively held by them; and the question therefore presented m limme, is whether the levy under the attachment, was a lien or security. If it was, then, according to the proviso in the deed, the creditors, including the plaintiffs, would be entitled only to the composition, upon the balance of their debt remaining, if any, after the appropriation of the security. The effect of this covenant is to require the application of the security, before the creditor is entitled to any part of the assigned estate; and if, therefore, he have a lien, he must use it or .imperil his debt. This is not a forced, but natural and just interpretation of the provision set out, the object of which is to prevent the lien creditor from participating in the general fund, except to the extent of the balance of his debt, after exhausting his securities. Hence the importance of determining whether the levy under the attachment is a lien or other security. Under our system requiring two-thirds of the creditors to join, the creditor petitioning, having collateral security, must relinquish it to the assignees, The plaintiffs, however, by the levy under the attachment, acquired a specific lien upon the property attached, It becomes, by law, a security for the judgment the plaintiff may recover; and the right thus acquired, is not defeated by the death of the debtor, if the action survives. The execution and delivery of the undertaking, was, in legal contemplation, a continuation of the attachment proceedings. The sureties promised to do exactly what the property seized would accomplish; namely pay the judgment obtained. On the rendition of the judgment in favor of the creditor, the lien becomes absolute, relating back to the time of the levy, and taking its priority from that date, In order, therefore, to avail himself either of the property seized, or of the remedy against the sureties, for which they are a substitute, the creditor must proceed to judgment. He must also, if he desire to avail himself of any part of the composition in a case like this, apply the lien or its substitute to the payment of his debt. The plaintiffs were therefore entitled to proceed to judgment. The sureties could not be proceeded against until judgment was obtained. It was a necessary element of the plaintiffs’ case against them, even though the judgment debtors should be entitled to have it stayed, on application therefor, by virtue of their proceedings in bankruptcy, after it had served the purpose for which it was obtained. It thus appearing that the plaintiffs had a lien or security, and that it was not affected by the bankruptcy proceedings to their prejudice, it becomes apparent that the judgment rendered was proper, and cannot be disturbed. It is also apparent, that whatever other available objections may be employed to invalidate the defense interposed, it is unnecessary to resort to them. The lien is an insuperable barrier to the success of the defense set up by the answer.

Judgment affirmed.

Daniels, J., concurred.

Judgment affirmed.

       24 and 25 Vict., 134.

        Supra.

       Bramble v. Moss, 8d Law Reports, 1867-68 (C. P.), 458.

      3 R. S., 5th ed., 110, § 11; Morewood v. Hollister, 6 N. Y., 309.

         Rinchey v. Stryker, 26 Howard Pr., 75; Frost v. Mott, 34 N. Y., 253.; Holyoke v. Adams, 2 N. Y. Supreme Court, 1.

       Code, §§ 227-287.

       Thacher v. Bancroft, 15 Abb. Pr., 243.

       Holyoke v. Adams, supra.

      Code, § 237; Thacker v. Bancroft, supra; Yale v. Matthews, 20 How., 430; S. C., 12 Abb., 379 ; Learned v. Vandenburgh, 7 How., 379; S. C. affirmed, 8 id.,77.

         Holyoke v. Adams, supra.


author:
      Brady, J.:
      Daniels, J.: Davis, P. J.,

text:
    RUTH E. DEAN, Respondent, v. THE ÆTNA LIFE INSURANCE COMPANY, Appellant.

      Policy of insuramee—premiums—power of agent to extend time of payment of— Proof of death—what notice sufficient—Entries in boohs—when inadmissible

    This action was brought by the plaintiff to recover the amount of two policies of insurance, issued by the defendant upon the life of her husband. On the trial it appeared that the defendant’s general managing agent in this State, agreed with the deceased to extend the time of payment of the premiums, due September 30, 1869, until the fifth of November following. On the second of November, a tender was duly made of the money payable, which the agent refused to receive, Mr. Dean being then ill. Held, that the plaintiff was entitled to recover; that the general agent had auihority, as such, to waive the condition of the policy requiring prepayment of the premiums, and that his acts were binding on the company, whatever his secret instructions might have been.
    After the death of Dean, the agent refused to give to the plaintiff’s attorney the blanks used in making up the proofs of death, on the ground that the defendant did not recognize the claim. Subsequently, the proofs were made up and presented to the agent, who refused to receive them, telling the person who presented them, to send them to the president of the company, which was done by mail. The agent testified that the proofs were sometimes left in his hands to send forward; that he often directed persons to send proofs of loss to the president; that there was no regular rule about it; and that they were often sent by mail by the parties. Held, (1), that these facts were sufficient to show the performance of the condition of the policy as to proofs; (3), that the refusal of the agent to give the blanks, on the ground that the company would not recognize the claim, rendered it unnecessary to send the proofs.
    The defendant offered to show that the policies were canceled in October, before Dean died, by entries made by the defendant. Prior to this offer, the agent had testified that in October both policies were canceled and returned to the company for non-payment of premium. Held, that the evidence was properly rejected. That the defendant could not affect the rights of the plaintiff by any entry in its books to which she did not assent, and to which she was not a party.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The facts are stated in the opinion.

      T. G. Strong, for the appellant.

      J. H. Choate, for the respondent.
   Brady, J.:

The plaintiff claimed, as the widow of Henry Dean, the sums secured by two policies delivered to her, dependent upon the life of her husband Henry Dean. The premiums payable for the year during which he died, were payable on the 20tli September, 1869, and, on or before that day, Morton, who was the defendants’ general managing agent in this State, agreed with Henry Dean to extend the time of payment until the 5th of November, 1869; or, in other words, he gave Mr. Dean until the fifth, to pay his premiums. On the second of November, a tender was duly made of the money payable, and Mr. Morton refused to receive it, having, it would seem, in an interview between Mr. Dean’s representative and himself, discovered that Mr. Dean was then ill. The evidence on the subject of the agreement to waive the payment of the premiums, in exact conformity to the terms of the policy, was in conflict, the defendants’ agent, Morton, denying that it was as asserted on behalf of the plaintiff. The question was submitted to the jury on this conflict, and decided by them in favor of the plaintiff. It is not deemed necessary to consider the evidence in detail. It is sufficient to say, that it abundantly sustains the conclusion at which the jury arrived. The further question was also submitted to the jury, and found also in favor of the plaintiff, whether the defendants had received the proofs of death contemplated by the policy. Several exceptions were taken during the trial, and to the charge of the justice presiding, and to his refusals to grant requests made, which it will be necessary to consider. It may be here remarked, however, that the authority of the general agent, as such, to waive the condition of the policy requiring prepayment of the premiums, cannot be doubted, and that his acts thereto are binding on the company, whatever his secret instructions may be. Such is the established rule of law in this State. In this case, assuming the agreement to waive the prepayment, and to wait for it until the 5th November, 1869, to have been made, as alleged on behalf of the plaintiff, there can be no doubt—indeed it is not denied—that it was in terms sufficient to accomplish the object for which it was made.

The jury having declared that it was made as averred, and that the requisite proofs were furnished, it follows, that, unless some error of law was committed requiring a reversal, the judgment must stand. The answer of the defendants set up two grounds of defense, namely: the forfeiture of the policies, by the failirre of the plaintiff and her husband to fulfill their conditions, and the failure of plaintiff to give due notice and proof of the death, in accordance with the rules, by-laws and practice of the defendants. The defenses were not established, nor was either of them. It will be perceived that the averment as to notice, is of tile want of due notice, or notice or proof in accordance with the rules referred to. The proof furnished on that subject by the plaintiff, was —

1st. That Morton refused to give to the plaintiff’s attorney the blanks used in making up the proofs, on the ground that the defendants did not recognize the claim.

2d. That the proofs, subsequently made up, were presented to Morton, who declined to receive them, telling the person who presented them, that they^should be sent to the president of the company, which was done by mail, and last by Morton’s admission that they had been received by the defendants. Morton said, on his examination, that the proofs were sometimes left in his hands to send forward; that he often directed persons to send proofs of loss to the president; that there was no regular rule about it; and that they were often sent by mail by the parties. These facts were quite sufficient to show the performance of the condition of the policy as to proofs, and to justify the result on that subject, at which the jury arrived. The defendants’ managing agent, when acting with reference to the proofs of loss, was acting within the scope of his agency. He sometimes took them to send forward, and sometimes directed them to be sent by mail. This practice was acquiesced in, on his own statement. If it were not so, however, the defendants, through him, having refused to give the blanks because the claim was not recognised, rendered it unnecessary to send the proofs. They placed their declination, not upon the ground that they were under no obligation to furnish them, or that they did not believe in the death of Mr. Dean, but upon the ground, assuming the death to have occurred, that they would not recognize the claim, and therefore would not pay it. This was a waiver of proofs. In addition to the exception just considered, the defendants took others, prior to the motion to dismiss the complaint, which must be briefly noticed. It appeared on the trial, that, on the 1st of November, 1869, when the representative of Mr. Dean went to the office of the defendants, a memorandum was given him, showing the amount to be paid by Mr. Dean before the fifth of that month, and, after the death of the latter, two memoranda were found among his papers, to the same purport, which were introduced in evidence under the defendants’ exception. They were subsequently shown to have been sent by the defendants to Mr. Dean, and, as they bore upon the arrangement of September, in reference to the alleged division of the premiums, were clearly competent. They were admissions that such a division had been agreed upon, on their part, and were so far corroborative of the plaintiff’s version of the controversy. The ground of the objection to them, was that they were immaterial, but it is very clear, for the reason stated, that they were pertinent to the real issue in the case. The defendants also excepted to proof of an interview with their agent, Mr. Morton, after the death of Mr. Dean, in reference to the arrangement made with the latter prior to his death, on the ground that declarations and statements of Mr. Morton, on that occasion, in reference to past transactions, could not affect the defendants, and as immaterial.” In answer to the question, the witness said: “ Mr. Morton said that Mr. Dean had come to his office and said he was afraid he would have to give up his policies, for he had not got the money to meet the premiums,” and I urged him not to give them up, and, to make it easier for the old gentleman (he used those words), I divided it up into four quarterly payments, and I prepared the notes for him to sign; he finally came in, sat down at the desk, took up a pen, and signed some of the notes; and then, without saying a word, put down his pen and went out; and that was the last I saw of him. I asked him what he did with those notes; well, said he, I looked upon them as amounting to nothing; the business was not finished ; and after awhile, I tore them up and threw them into the waste basket. He said Mr. Dean had come to him, and that arrangement or talk was had at the time the premium was due.” Assuming that this evidence was prohibited, within the rule that the declarations of an agent, not engaged in the performance of any act relating to his agency, is incompetent, it is nevertheless very clear, that it was not in any way injurious or prejudicial to the defendants ; it was in contradiction of what the plaintiff claimed to have occurred on the occasion to which it related, namely, the signing of all the notes necessary to consummate the policies and the agreement to extend the time of payment of the premiums to the fifth November, which was the only remaining ceremony necessary to complete the transaction. It was a statement which, if true, showed conclusively that the preliminaries, indispensable to the completion of the contract, had not been performed; that all the notes had not been signed; that the matter was left unfinished by the deceased; that the business ivas not perfected; that Morton looked upon the two notes signed, as amounting to nothing, and that he tore them up and threw them into the waste basket. This was substantially the statement made by Morton himself, as appears by the extract from his evidence as follows: “ On the 20tli of September, 1869, he came in again ; that was the day upon which his premiums were due; and, after a good deal of conversation, I pressed upon him to keep up the $5,000 policy, by quarterly payments, showing that he would not have a great deal of money to pay, and he rather, after a time, assented to it; so much so, that I thought he would do it. I told him he could get the money from his friends; that anybody would lend him that amount to keep his policy up, at his time of life. The premium was $202 — about sixty dollars with interest added—something over sixty dollars, the first payment, and about fifty dollars on three subsequent payments. He had notes prepared ; my young man, in preparing the notes for the quarterly payments on the $5,000, filled up the blanks for the other; he did not comprehend what was to be done — the bookkeeper I had in my office. They were all laid down on the desk, and Mr. Dean signed two. I suppose I can tell what was done with these notes. There were two others, which he should have signed toward the payment of that policy. He hesitated a long time between the two signatures for the two'notes. There were four of them to be signed, and he signed two, to pay the $5,000 policy, and there was about sixty dollars in money to pay. He sat fifteen minutes between the signing of the two ; pushed them back from the desk; the others were lying loose there; they had not been signed at all; he pushed them back and moved away from the desk, and went out of the office. I supposed he was going to return ; he said he would see what he could do, and seemed embarrassed in his mind about not being able to get the money; seemed not to know where to look for the money. It occurred to me, he had gone out for the money, to settle for the one policy, but he did not come back again, and I never saw him after that day.”

The only difference which is of any moment, is, that Morton makes the signing of the notes apparently relate to the policy of $5,000 only"; but it will be perceived, on examination of his testimony, that the transaction was not thus confined. Morton, notwithstanding this attempt, says that his young man, in preparing the notes for the quarterly payments on the $5,000 policy, filled uj> the Hanks for the other. “ They were all laid down on the desk, and Mr. Dean signed two.” If the $10,000 policy was not to be included in the agreement, why were they not taken away when discovered ? Why was Mr. Dean permitted to begin the signing of all the notes ? They were all laid down before him, and for no other purpose than that they should be signed, in accordance with the conclusion at which they, Dean and Morton, had arrived, from the interview which was about to close. This narrative of Morton’s, even in the respect named, does not therefore substantially differ from that given by the witness, but the difference, if any there be, is wholly immaterial, because the result of the meeting between Dean and Morton, was the same as stated by both Morton and this, the plaintiff’s, witness, and it was that the agreement was not completed. The deceased signed only two of the notes; sat fifteen minutes between the signing of the two ; pushed the notes back, and left the office, not to return. Morton never saw him afterward. This is Morton’s account. The effect of both pieces of evidence, is, that nothing was finished, either in regard to one or the other of the policies, and it is clear therefore, that the evidence could do the defendants no injury. It was not in support of the plaintiff’s case. It was in harmony with, and in aid of, the defendants’ case. If the plaintiff did not show an entirely different state of facts, the defendants must have succeeded. She recovered on an agreement completed, and this testimony did not in any way tend to show the contract, she set up, in any respect in which it was denied. It was, indeed, in decided hostility to the proposition, that such an agreement, as she averred to have been made, had m fact been completed. The exception should fail, for these reasons.

These are all the exceptions taken prior to the motion to dismiss the complaint, which was made chiefly upon the assumptions that the evidence established or failed to show facts, which either operated to the defendants’ benefit, or against the plaintiff’s right to recover.

It is not necessary to consider them in detail. It is enough to say that the defendants’ counsel was mistaken, in his estimate of the effect of the evidence given, and in his view of the failure of proof, which he asserted. The evidence had established a prima facie case,- and one which it became the imperative duty of the court to entertain, and therefore to submit to the jury. The motion was properly denied. The defendants’ counsel also offered to show that the policies were canceled in October, 1869, before Hr. Dean died, by entries made by the defendants, but this offer was made after Morton had stated as follows: In October, 1869, premium canceled; that is, both policies were canceled and returned to the company for non-payment of the premium.” The value of the entry, after this evidence, is apparent. The policies had been returned by the agent here, if at all, and the entry must necessarily have been predicated of such return. The evidence, however, was inadmissible. It was substantially a declaration of the defendants, that they regarded their liability as having ceased. They could not deprive the plaintiff of any right, or affect her rights, by any entry in their books to which she did not assent, and to which she was not a party. This testimony, and the attempt to show whether, in the statement of the defendants’ affairs, the policy was returned as one of its assets or a lapsed policy, were properly excluded. The defendants also excepted to the exclusion of a question asked of Morton: Had you any more authority to extend the time of payment, than to waive the forfeiture of a policy after it had lapsed ? ” The exception was not well taken, for several reasons, one of which alone is sufficient, and that is, that, notwithstanding the exclusion of the question, it was immediately answered by the witness, who said he had no right to extend the time, or waive the forfeiture. The defendant also excepted to the proof of an interview, on the 12th November, 1869, between Mr. Keese and Morton, the object of which was to contradict him, and in that way to assail his credibility. The attention of Morton had been called to the conversation, on cross-examination, and the foundation laid for the procedure. It related to a material fact, which was indeed the gist of the plaintiff’s action, namely: whether the time for the payment of the premiums had been extended, without proof of which the plaintiff could not recover. Morton denied that he had said to the witness, on the twelfth of November, several things on the subject, the leading and important feature of which was the waiver of the prepayment, at the time designated by the policy. The defendants’ agent having, as alleged, made the agreement thereto, and having denied that he did so, it became important to show his conflicting statements on the subject. He had testified to the existence of a material fact within the issue, and such statements were clearly admissible, with a view to affect his credit. The exception cannot be sustained. The defendant also excepted to the admission of the receipt, signed by Morton, of Mr. Dean’s note, payable sixty days after date, for the premium on his policies in 1868; but the exception has no merit. It was admitted by Morton, on cross-examination, that sixty days had been given Mr. Dean to pay his premiums, and the receipt showed the manner in which it was done. If the evidence were inadmissible, it related to a conceded fact, and could not therefore possibly prejudice the defendants. •

The exceptions taken to the denial of the defendants’ second motion to dismiss the complaint, were not well taken. The grounds assigned, did not warrant any other disposition of that motion. It was substantially a reiteration of the former motion, and was doomed to the same fate. A careful examination of the exceptions of the charge and the refusals to charge as requested, discloses no error in law. The defendants’ case was tried upon theories which were never abandoned, and which their counsel tried to make dominant, but without success; the most prominent of which was, that the defendants’ agent, Morton, had no authority to extend the time of payment, derived from the defendants, but he encountered the legal difficulty constantly, that in law he had such authority, according to adjudged cases. It appears also, that the plaintiff’s right to recover depended upon questions of fact, about two of which at least, there was conflicting evidence, and upon which the jury were to determine them. The judge presiding, pointed them out, and called the attention of the jury to the conflict, so that they fully understood the responsibility cast upon them. These questions were:

1. Whether or not the defendants, through their agent, Morton, extended the time for the payment of the premiums, the other preliminaries, such as the signing of the necessary notes, having been complied with.

2. Whether, if it was extended, the tender of the money to be paid, was made in time; and

3. Whether the plaintiff gave such proof of loss, as was sufficient under the policy, and the laws governing such contracts.

All these questions were fairly disposed of by the jury on the whole evidence. The defendants were fully and ably defended. The vigilance of their counsel let no chance pass by, which would avail them, and hence, a multitude of exceptions in the case. The struggle seems to have been a hard one, on the part of the defendants, to relieve themselves of a liability duly incurred; but the facts and circumstances were too strong to be overcome, and they failed. An impartial investigation of the evidence given on the trial, shows, as already suggested, the complete justification of the jury, in rendering their verdict on the main issues in favor of the plaintiff. In one respect, however, we think there was an error committed. The policy provides, that, in case the sum secured shall become payable, all indebtedness of the party to the company, shall be deducted. The premiums for the year 1869, and payable on the twentieth September of that year, were not paid, and should have been deducted. They were payable before the death occurred. They amount to $2,997.60, and this sum should be deducted from the amount of the judgment. Ordered accordingly, and that the judgment be affirmed for the balance, without costs of the appeal to either party.

Daniels, J.:

By the express terms of both the policies in suit, the premiums upon them were made payable on or before the twentieth day of September, in every year during their continuance; and each contained the statement, that it was understood and agreed, that in case the premium should not be paid on or before the days mentioned for the payment thereof, the policy should cease and determine. The premiums which became due and payable on the 20th day of September, 1869, were not paid on or before that day; and the consequence resulting from that circumstance, was, that the policies ceased and determined, unless the time for the payment was extended by some agreement or arrangement binding on the company. That such an agreement had been made, was a fact to be satisfactorily established by the plaintiff, before her right to recover upon the policies, could be maintained. And that, she endeavored to prove. The evidence given in support of that fact, consisted of. the declarations and statements of the defendant’s general agent, in charge of its business at the city of New York. These statements were made on the 2d of November, 1869, and also a few days after the decease of the person whose life was insured by the policies, who died on the nineteenth of November of that year. They tended to show that an agreement was made between him and the defendant’s general agent, on the twentieth of September preceding, by which the payment of the premiums for that year, was so far extended, that no part became due until the 5th of November, 1869. And it was shown, that payment of such part was tendered to the agent, and refused by him, after the statements were made, and before that day. At the time when the statements were made by the agent, admitting that he had made an agreement op the 20th of September, 1869, extending the time for the payment of the premiums for that year, he also delivered to the person he had the interview with, written memoranda, indicating the amounts required to be paid according to the terms of that agreement. But they did not, of themselves, constitute such agreement, and were not delivered by the way of renewing, or entering into it. The witness who received them, stated that the agent gave him the memoranda, as indicating the arrangement which he had. previously stated ” to him, and as such, they were no more than the oral declarations of the agent, reduced to writing.

Two other memoranda, signed by the defendant’s agent, were found among the papers of the person whose life was insured, after his death, and were received in evidence on the trial. But they were evidently made before the 20th of September, 1869, because they call attention to the fact, that the premiums on the policies would become due on that day, and request payment of the amounts. That is succeeded by certain figures, unexplained, upon the papers, which, with the explanation afforded by the agent’s declarations, may possibly tend to indicate the existence of the agreement relied upon to sustain the recovery. But if they are capable of being-used in that manner, it could not be done without the declarations themselves. So that if they were incompetent evidence for use in the case, nothing was proved by them from which an agreement for the extension of the time for the payment of the premiums, could be inferred. Substantially, that depended upon the declarations of the agent, for proof of its existence; without them, there was nothing from which the extension of the time for the payment of the premiums, could properly be found as a fact. In this state of the proof, and after the evidence was all taken, the defendant moved for a nonsuit, specifying, among other reasons in support of its-motion, that it was not proved that the conditions of the policies, as to payment, were waived, and the time of payment extended, by the defendant, or any person authorized to do so upon its behalf. The motion was denied, and the defendant excepted.

If this objection had been broad enough to present the question, whether the agent’s declarations were competent evidence to show an extension of the time for the payment of the premiums against the defendant, it would have been in time, although the proof had been received without objection. Those declarations were not competent evidence of the existence of an agreement, made six weeks before the time when they were made, against the defendant, the-principal of the agent making them. And the omission to object to them when they were offered, did not deprive the defendant of the right to insist upon their incompetency, at the close of the evidence, or any other time during the progress of the trial. This was-substantially held in the case of Hamilton v. N. Y. Central R. R. Co But the objection actually taken, did not present this point for the decision of the court. It simply presented the objection, that the agent was not authorized to waive or extend the time of payment of the premiums. Whether the proof, given to show that an agreement had been made for the extension, was competent proof for that purpose, was not mentioned nor suggested. Neither this motion nor the grounds specified in its support, nor any other objection taken during the trial, presented that question. And, as it was not raised at any time during the trial, it was necessarily waived when the case was submitted to the jury. The defendant had the right to have the case tried, if it so elected, on incompetent evidence, and the omission, at any time, to object, is conclusive evidence of such waiver. By such conduct, even the right to a trial by jury may be waived,

The plaintiff offered in evidence a note made on the 20th day of September, 1868, given by the person whose life was insured by the policies, for the payment of the premiums upon them, in sixty days after its date, containing the agreement that the policies should be null and void, if the note should not be paid when it was due. This was objected to by the defendant, on the ground that it was immaterial. The objection was overruled, and the defendant excepted. In one respect this was material evidence. For the authority of the agent to extend the time for payment of the premiums, was controverted by the defendant. And if that had previously been done by him, with the approval of the defendant,, it was a fact tending to show the existence of the authority. When the agent himself was examined as a witness, the defendant showed the transaction of 1868 fully by him. And it appeared from his-evidence, that the papers, including this note, were sent to the defendant, which made no objection, but approved of the arrangement. This was all competent, for the purpose of showing the agent’s authority to change or extend the time fixed for the payment of the premiums. The agent, on the defendants’ examination of him, showed that a receipt had been given when the note was taken, and there could be no well founded objection against afterward receiving the receipt itself, for the purpose of having its precise terms in evidence. It was a material part of the transaction, which the defendant had taken pains to prove, and there could be no impropriety in reading it, to show exactly what had been done, so far as that appeared by the receipt.

The delarations proved to have been made in one of the interviews after Mr. Dean’s death, and which were objected to, as incompetent, by an objection expressly confined to the particular occasion, then mentioned, did not tend to prove the existence of any valid agreement for the extension of the time, fixed by the policies for the payment of the premiums; and, for that reason, the exception, taken to the decision allowing them to he proved, can be of no service to the defendant. The admission of the agent, shown under it, tended to prove that the terms proposed, had not been complied with by Mr. Dean. And for that reason, it was entirely inéffectual as evidence against the defendant. It maintained the position of the defendant, and tended to subvert the plaintiff’s claim.

The conversation which was stated by the witness Keese, was of the same general nature. He said' that Morton told him, substantially, what he himself had said during the trial as a witness, so that it could not possibly have done the defendant any harm; and while it was objected to, it was not because it was incompetent, but simply because it ought to have been called out on the direct examination. The remark made concerning the preceding conversation, is equally as applicable as to the one just before considered. For it was no more than a repetition of what Morton, the agent, swore to himself.

The evidence sufficiently showed the service of the notice and proof of the death of the person whose life was insured, without the declaration of the defendant, that they had been received by the company. They were tendered to the general agent, and, after being refused by him, were mailed, under his direction, to the president of the company, at its place of business in Connecticut, and that, certainly, should be sufficient to prove a compliance with the terms of the policy on this subject. Besides that, it appeared that the refusal to pay was placed by the company on the omission to pay the premiums, and that would be sufficient to constitute a waiver of all proof of death.

An objection was taken to the copy of the notice and proof of death, offered in evidence. But it was not objected to because it was a copy. The objection was expressly placed on the reasons, that it did not appear that the original came to the possession of the company; that the fact of mailing was not such evidence of its receipt, as to justify the admission of a copy in evidence. These reasons were not good, because the proof did show a proper service of the original. The tender to the agent, and mailing to the president as he directed, sufficiently showed the service of the notice and proof of death, to comply with the terms of the policy. The only authority opposed to the validity of such a service, is that of Hodgkins v. Montgomery County Mutual Insurance Co., and that was afterward reversed by the Court of Appeals. The agent appears to have been the general agent of the company at the city of Mew York, and he was authorized, as such, to transact all the company’s business at that place, which included all that he did concerning this insurance. And for the reasons already given, as well as those mentioned by Mr. Justice Brady, the judgment, after being modified as directed by him, should, with the order denying a new trial, be affirmed.

Davis, P. J.,

dissented, on the following grounds:

First. Incompetent declarations of the agent were admitted against defendant’s objection. They were not harmless, because they were regarded by the court and jury as material and important, as appears by the charge, and because the ruling upon them established a rule of evidence for the case, and subsequent evidence of such declarations was given, to which it must be assumed the defendant omitted to object on that ground, in deference to the ruling that such declarations were competent.

Second. The fact that the policies were canceled in October was competent, as tending to corroborate the testimony of the agent that no extension was made. It was an act in the due course of business.

Third. There was no evidence in the ease to establish the alleged waiver, except incompetent proof of Morton’s declarations. The motion for nonsuit raised the question of absence of lawful proof of waiver. The overruling of the motion was error.

Fourth. The verdict was against evidence, and a new trial should have been granted on that ground.

The claim is of most suspicious character, and the evidence to uphold it, I think, was illegal and insufficient. I think a new trial should be granted.

Judgment, with modifications stated in opinion of Beady, J., and order denying new trial, affirmed.

       Sheldon v. Atlantic F. & M. Ins. Co., 26 N.Y., 460; Wood v. Poughkeepsie Ins. Co., 32 id., 624; Bodine v. Exchange Fire Ins. Co., 51 id., 122; Boehen v. Williamsburgh City Ins. Co., 35 id., 532.

       Phillips on Ins., 2 vol. 1803 (lechon); Francis v. Ocean Ins. Co., 6 Cowen, 404; O’Neil v. Buffalo Fire Ins. Co., 3 Coms., 122; Post v. Ætna Ins. Co., 43 Barbour, 351.

       Patchin v. Astor Mutual Ins. Co., 3 Kern., 268.

       Anderson v. Rome, etc., R. R. Co., 54 N. Y., 334.

       51N. Y., 100.

      Greason v. Keteltas, 17 N. Y., 491; Penn. Coal Co. v. Del. & Hud. Canal Co., 1 Keyes, 72; West Point Iron Co. v. Reymert, 45 N. Y., 703; Fisher v. Hepburn, 48 id., 41; Delaney v. Brett, 51 id., 78.

      Vandevoort v. Gould, 36 N. Y., 639, 644.

       Post v. Ætna Ins. Co., 43 Barb., 353; Cornwell v. Haight, 21 N. Y., 462.

      34 Barb., 213.

       41 N. Y., 620.


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    NEW YORK ATTRITION PULVERIZING COMPANY, Respondent, v. ANDREW P. VAN TUYL and another, Appellants.

      Injunction—secwrity—effect of failure to give.

    Where an injunction, was obtained by the plaintiff, restraining the defendants from taking any steps to foreclose a chattel mortgage upon property belonging to the plaintiff; and, on appeal from the order granting the injunction, it appeared that the plaintiff was insolvent, and that no security had been given as required by the Code; held, that the order should be affirmed, on the plaintiff’s filing security in the form required by section 322 of the Code, and by the rules and practice of this court, within ten days after service of a copy of the order to be entered herein; but if such security should not be so filed, that then the order appealed from be reversed.
    Appeal from an order granting an injunction restraining the defendants from taking any steps to foreclose a chattel mortgage, and referring the cause to a referee.

      Dana & Clarkson, for the appellants.

      Cyrus Lawton, for the respondent.
   Opinion by Davis, P. J.

Daniels and Lawrence, JJ., concurred.

Order of reference reversed. Injunction continued, if security be filed as directed by opinion; and if not, then order reversed i/n toto, with costs of motion and appeal, together with disbursements.


text:
    In the Matter of the Application of the DEPARTMENT OF PUBLIC PARKS to Acquire Title to Certain Lands for a Military Parade Ground.

      Ohap. 628, Laws of 1871 —Lands to le used for military purposes—Department of public peales —power of, to discontinue proceedings for the acquisition of.

    Under chapter 628, Laws of 1871, the department of public parks and the major-general commanding the first division if. Gf. S. if. Y., laid out a public place for a parade ground in the city of ifew York, and filed maps showing the extent and location of such public place. Subsequently, upon the application of the commissioners of the department of public parks, made in pursuance of chapter 697, Laws of 1867, and chapters 628 and 290, Laws of 1871, commisl sioners of estimate and assessment were appointed by this court, who entered upon the discharge of their duties. Before any report was made by them, a resolution was adopted by the commissioners of public parks, discontinuing the proceedings instituted to acquire title to the lands. Held, that a motion to compel the commissioners of estimate and assessment to make their report and complete their proceedings in the matter, was properly denied. The commissioners of public paries possess the power to discontinue the proceedings at any time before the confirmation of the report of the commissioners of estimate and assessment.
    Appeal from an order denying a motion made to compel the commissioners of estimate and assessment to show cause why they should not forthwith make their report and complete their proceedings in this matter.

      Wm. R. Martin and Henry E. Davies, for the appellants.

      George P. Andrews, for the respondents.
   Opinion by Daniels, J.

Davis, P. J., and Barrett, J., concurred.

Order affirmed, with ten dollars costs, besides disbursements.


text:
    THE EXCELSIOR SAVINGS BANK, Respondent, v. SAMUEL CAMPBELL and others, Appellants.

      Answer—when frivolous.

    In an action to foreclose a mortgage for non-payment of interest, the defendants interposed an answer, in which they denied “ that they were in default in the payment of the sum of $280, which became due and payable on the 25th day of September, 1878.” Held, that as the answer put in issue no material fact, but simply denied that the defendants were in default, which was a conclusion of law, it was properly held to be frivolous.
    Appeal from an order, overruling an answer as frivolous, and directing judgment to be entered in favor of the plaintiff.

      Wm. S. Palmer, for the appellants.

      F. F. Van Derveer, for the respondent.
   Opinion by Lawrence, J.

Davts, P. J., and Daniels, J., concurred.

Order affirmed, with costs.


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    JOHN MURPHY and another, Appellants, v. JAMES F. KEYES, Respondent.

      Stipulation that one action abide event of an appeal in another—effect of— Execution.

    Three actions were pending between the same parties, two in this court, and one in the Superior Court. The plaintiffs having recovered judgment in the Superior Court, it was stipulated by the parties to the actions, that the plaintiffs might enter judgments in the actions in this court; that the testimony, rulings and exceptions in the case in the Superior Court should apply to such actions; and that the actions in this court should abide the event of an appeal to be taken from the judgment in the Superior Court. Held, that the effect of this stipulation, was to stay all proceedings in the actions in this court, during the appeal from the judgment in the Superior Court, and that executions, issued on the judgments entered in this court, were properly set aside.

      Appeal from an order setting aside an execution issued on a judgment entered in this action.

      Nelson Smith, for the appellants.

      James F. Malcolm, for the respondent.
   Opinion by Daniels, J.

Davis, P. J., and Lawrence, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    JOHN E. HUBBELL, Respondent, v. PAULINE VON SCHOENING and EMIL VON SCHOENING, Appellants.

      Contract — specific performance of— Bights of party when time is not of essence of.

    A party may be held to a strict performance of a contract as to time, and be put in default for non-performance; but to do this, the party seeking to put the other in default, must not only be ready and willing to perform, but he must tender performance at the time, and demand performance of the other party.
    When time is not of the essence of a contract, a party cannot be barred of his rights, without notice to perform in a specified reasonable time.

    Appeal from a judgment directing specific performance of a contract. This ease is reported in 58 Barbour, 498, and 49 New York, 326; and the court, being of opinion that the facts developed on the last trial were substantially the same as on the former one, affirmed the judgment below.

      Ira D. Warren, for the appellants.

      John E. Parsons, for the respondent.

       Myers v. De Mier, 52 N. Y., 647.

   Opinion by Brady, J.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


text:
    WASHINGTON B. WILLIAMS, Assignee, etc., Respondent, v. BENJAMIN F. ALLEN, and others, Appellants.

      Reference—Long account — determined from, character of complaint.

    The character of an action must be determined by the complaint, and if that is upon contract, the action is referable, although the answer sets up a counterclaim, and claims damages by way of recoupment.

    Appeal from an order referring the issues in this action to John P. O’Neill, Esq., to hear, try and determine the same.
    The defendants stated in their affidavits, that they intended to dispute only three items of the account. It appeared to the court, however, that one of these items was made up of a large number of small charges, which would have to be proved on the trial.

      Coles Morris and Michael H. Cardozo, for the appellants.

      Culver & Bertrand, for the respondent.

       Welsh v. Darragh, 52 N. Y., 590.

   Opinion by Lawrence, J.

Davis, P. J., and Daniels, J., concurred.

Order affirmed with costs.


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    In the Matter of the Application of HENRY JAMES ANDERSON, to Vacate an Assessment for Paving First avenue.

      Designation not necessarily an employment of a newspaper.

    A mere selection of a newspaper to publish official proceedings, is not an employment of it. Its acceptance must be shown.

    Appeal by the Mayor, etc., of New York, from an order made at Special Term, vacating certain assessments made upon the property of the petitioner.

      The assessment in question was laid in 1874, for the expense of paving First avenue, New York, from Thirty-sixth to Sixty-first street.

      E. Delafield Smith and William Barnes, for the Mayor, etc., of New York.

      E. Ellery Anderson, for the respondent Anderson.

      See Phillips v. Mayor, etc., ante, p. 212.

   Opinion by Daniels, J.

Davis, P. J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements on appeal, and an order entered denying the application, with ten dollars costs.


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    MARIAN G. CATLIN, Respondent, v. WILLIAM H. CATLIN, Appellant.

      Beferee's rcpot'i—exceptions to — Wawe>\

    If a party neglect to except to a referee’s report, for eight days after notice of its filing, it becomes absolute, under Rule 39, although it be defective on its face. A party who voluntarily appears at a place different from that at which notice was given that evidence would be taken, and does not object, waives his right to complain of it on appeal.
    Appeal from an order denying a motion to set aside a referee’s report.

      M. P. Stafford, for the appellant.

      Julien T. Davies, for the respondent.
   Opinion by Daniels, J.

Davis, P. J., and Barrett, J., concurred.

Order affirmed, with ten dollars costs, besides disbursements.


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    HENRY CLEWS and another, Respondents, v. THE ROCKFORD, ROCK ISLAND AND ST. LOUIS RAILROAD COMPANY, Appellant.

      Attachment—when may issue.

    In an action to recover the sum of .$45,000, and interest, as damages for the breach of an alleged contract to deliver to plaintiff certain town bonds, an attachment may properly issue against a non-resident defendant.

      Lawton v. Reil (84 How., 465) followed.
    Appeal from, an order denying a motion made by the defendant to vacate a warrant of attachment issued in this action.

      James 8. Stearns and Henry J. Seudder, for the appellant.

      Crosby & Kent, for the respondents.
   Opinion by Lawrence, J.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with costs.


text:
    GEORGE S. THOMPSON, Appellant, v. JAMES C. FARGO, Treasurer, etc., Respondent.
    AlPpeal from a judgment in favor of the defendant, entered upon the report of. a referee.
    This action has already been once tried, the decision of the General Term being reported in 58 Barbour, 575, and that of the Court of Appeals, reversing the judgment entered in the court below and ordering a new trial, in 49 New York, 188, and 44 Howard, 176.
    On the second trial, the plaintiff attempted to show that the Whites, for whom he collected the money from the United States paymaster, and to whom the package, delivered to the defendant, was addressed, were fictitious persons. The referee found, however, that they were real, living individuals, and the General Term held that the evidence was sufficient to justify him in so doing.

      E. Van Ness, for the appellant.

      Hamilton Cole, for the respondent.
   Opinion by Daniels, J.

Davis, P. J., and Lawrence, J., concurred.

Judgment affirmed.


text:
    ALTAGRACIA CEPEDA DE LLAMOSAS, Respondent, v. ANTONIO DE LLAMOSAS, Appellant,
    Appeal from an order, made upon the filing of the report of a referee, directing the defendant to pay to the plaintiff the sum of $535, as and for her expenses in conducting this action, and the further sum of thirty-five dollars each and every week until the determination thereof, for her support and maintenance.
    This action was brought to obtain a separation on the ground of cruelty. The General Term held that the pleadings in the action, and the evidence taken before the referee, were sufficient to authorize the making of the allowance for support and counsel fees, and affirmed the order.

      F. R. Coudert, for the appellant.

      Sullivan, Kobbe & Fowler, for the respondent.
   Opinion by Daniels, J.

Davis, P. J., and Lawrence, J., concurred.

Order affirmed, with ten dollars costs, besides disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. CHARLES H. MALLORY and others, Appellants.
    Appeal from a judgment rendered at Special Term, restraining the defendants from maintaining a shed on Pier No. 20, East river; also from an order denying defendants’ motion that this cause be referred back to the judge who tried it, with directions to make a specific finding, “ that numerous steam transportation lines, running vessels between New York and other ports, both domestic and foreign, have for many years maintained upon piers occupied by them, some upon the East river and others on the North river, similar sheds, without disturbance from the public authorities.” This case has been before at the General Term, and the decision is reported in 2 New York Supreme Court Reports, page 76. The court held that the case was substantially the same as when before it on the prior appeal, and that the fact that similar sheds had been erected upon the piers mentioned in the request, was immaterial. The question was, whether the defendants’ shed was a nuisance.

      S. P. Nash, for the appellants.

      William Allen Butler, for the respondent.
   Opinion by Lawrence, J.

Daniels, J., concurred.

Order and judgment affirmed, with costs.


text:
    THE PANAMA RAILROAD COMPANY, Respondent, v. TRACY ROBINSON, Appellant.
    Appeal from an order denying a motion to vacate an order of arrest. The motion was made on the ground that the affidavit, on which the order of arrest was made, was insufficient, and that the complaint was for the recovery of money on contract. The court was of opinion that the affidavit, independent of that part made on information, showed that the defendant had converted money of plaintiff to his own use, and that the complaint set forth a cause of action for such misappropriation.

      George H. Forster, for the appellant.

      Henry S. Bennett, for the respondent.
   Opinion by Daniels, J.

Davis, P. J., and Lawrence, J., concurred.

Order affirmed, with ten dollars costs and disbursements on appeal.


text:
    HENRY CLEWS and THEODORE S. FOWLER, Respondents, v. GEORGE RAPHAEL, Impleaded, etc., Appellant.
    Appeal from an order denying motion to vacate an order of arrest. The defendant, without answering, moved to vacate the order. Davis, P. J., says: “A prima facie case was made upon the affidavits. The defendant has an opportunity to answer and explain the transaction or his connection therewith. His failure or neglect to do so, we think, justified the court in denying the motion.”

      W. T. B. Milliken, for the appellant.

      Morris & Hillhouse, for the respondents.
   Opinion by Davis, P. J.

Daniels, J., concurred.

Order affirmed, with costs.


text:
    GEORGE S. TRIMM and others, Appellants, v. WILLIAM B. MARSH AND OTHERS, RESPONDENTS.

      Extra allomante — Final judgment—when entered.

    Appeal from an order granting an extra allowance.
    In this case the Commission of Appeals ordered judgment absolute for defendants. The remittitur was sent to the Supreme Court, and judgment was entered. Afterward, the Commission of Appeals, on motion of plaintiff, ordered that the clerk of the county of New York return the remittitur to that court, where a motion for a reargument was made and denied. The defendant then moved for an extra allowance. The court, at General Term, was of opinion that by taking the remittitur fi-om the files of the Supreme Court it became necessary, after the denial of the motion in the Commission of Appeals, to enter another judgment in the Supreme Court upon the remittitur; and that it could not, therefore, be said that a final judgment had been entered in the case when an extra allowance was applied for.

      Wheeler H. Peckham, for the appellants.

      Justus Palmer, for the respondents.
   Opinion by Lawrence, J.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with costs.


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    JOSEPH W. BRAY v. CORNELIUS POILLON and another, Respondents.
    Appeal from an order denying a motion, made by Henry Volkening, to set aside an assessment of damages against him, upon an undertaking given in this action, to procure an injunction. This action was decided in favor of the defendants, and the judgment contained an order referring it to Willard Bartlett, Esq., to ascertain and report the damages sustained by the defendants, by reason of the preliminary injunction. The referee reported the damages at $3,805.55, and his report was confirmed. No notice of the proceedings before the referee, was given to Volkening. Volkening, one of the sureties, was sued to recover the amount, and now moves to vacate the assessment of damages. Lawrence, J., says: “ I am in favor of affirming the order appealed from.
    “ 1st. If the surety, Volkening, was induced to execute the undertaking by fraud or misrepresentation, he can fully protect himself by setting up the facts attending the execution of the instrument, as a defense to the action which has been commenced against him, and which is still pending.
    “ 2d. I think that the damages were properly assessed on the reference.”

      Nelson Smith, for Volkening, the appellant.

      George H. Forster, for the respondents.
   Opinion by Lawrence, J.

Daniels, J., concurred.

Order affirmed.


text:
    THOMAS HOLLOWAY, Respondent, v. BENJAMIN F. STEVENS, Appellant.
    Motion for a reargument of an appeal from an order directing the restitution of money collected by the defendant. The case is reported in 1 Hun, 308. The court held that the decision of the ease made on the former hearing was correct, except that in the opinion, the words “ public policy ” were used by mistake instead, of the words “ policy of the law.”

      Titus B. Eldridge, for the appellant.

      Gray & Davenport, for the respondent.
   Opinion by Daniels, J.

Davis, P. J., and Barrett, J., concurred.

Motion denied.


author: Talcott, J.:

text:
    October, 1874.
    THE PEOPLE ex rel. CORWIN et al. v. PETER D. WALTER, County Clerk, et al., Commissioners and Assessors of Newfane. THE PEOPLE ex rel. MENTZ et al. v. PETER D. WALTER, County Clerk, et al., Commissioners and Assessors of the Town of Lewiston. THE PEOPLE ex rel. STOCKWELL et al. v. PETER D. WALTER, County Clerk, et al., Commissioners and Assessors of the Town of Wilson. THE PEOPLE ex rel. HESS et al. v. PETER D. WALTER, County Clerk, et al., Commissioners and Assessors of the Town of Somerset.

      Town bonding—Jurisdiction must be shown — Writ of certiorari—limitation of time in which it may issue— Chap. 241, 1869.
    In proceedings taken for the purpose of bonding towns in aid of railroads, it must appear affirmatively that there was lawful authority to bond the town ; jurisdiction will not in such cases be presumed.
    Where an act (chap. 241 of 1869) authorizes the bonding of towns situate along the route of the railroad, the location of the road, in such manner that the town in question lies along.the route, is a condition precedent to the institution of any proceedings to bond it.
    The time of limitation to the issuing of writs of certiorari, which, in the absence of special circumstances, has been usually adopted by the court, is two years, in analogy to limitations upon writs of error.
    Oertioraris, issued on the application of certain tax-payers, to review the proceedings had in the several towns of Lewiston, Newfane, Somerset and Wilson, in the county of Niagara, for the purpose of bonding said towns in aid of the construction of the Lake Ontario Shore Railroad, in pursuance of the provisions of an act of the legislature, entitled, “ An act to authorize certain towns in the counties of Oswego, Cayuga and Wayne, to issue bonds and take stock in and for the construction of the Lake Ontario Shore Railroad,” passed May 11, 1868 (chap. 811 of 1868), and the act amendatory thereof, passed April 19, 1869 (chap. 241 of 1869). The act of -1869, among other things, provided :

      “ Section 1. On the application, in writing, of twelve or more freeholders, residents in any town, incorporated village or city, except the city of Rochester, in either of the counties of Oswego, Cayuga, Wayne, Monroe, Orleans, or of the second assembly district of Niagara, situate along the route of the Lake Ontario Shore Railroad, it shall be the duty of the county judge,” etc.

      William S. Farnell, for the relators.
    The facts, proof and evidence, necessary for jurisdiction, must appear affirmatively from the return. (47 N. Y., 415 ; 46 id., 110.) The affidavit of the assessors is not conclusive. (52 N. Y., 538; 2 N. Y. S. C. R., 142.) Their affidavit must be sustained affirmatively by papers filed. (4 Lans., 534; 5 id., 89 ; 47 N. Y., 415; 45 id., 772 ; 46 id., 110; 3 Lans., 292, 295.) The action of the assessors is quasi judicial. (Pierce v. Wright, 6 Lans., 306.) No remedy being given by statute, a common-law certiorari is proper. (Lawton v. Comrs. of Cambridge, 2 Caines, 179 ; Le Roy v. City of N. Y., 20 Johns., 430.) The writ was properly directed to county clerk, because papers were filed with him (3 Selden, 152); and to the assessors, because their decision is to be reviewed. (Conover v. Devlin, 15 How., 470 ; Harris v. Whitney, 6 id., 175; Fitch v. Comrs. of Kirkland, 22 Wend., 132; People v. Hill, Albany Law Journal, Apl. 5,1873.) It should have appeared that towns were situated on the line of the Lake Ontario Shore Railroad. (People ex rel. Rogers v. Spencer, 55 N. Y., 1.)

      Rhodes de Parkhurst, for commissioners.

      Charles Rhodes, for county clerk.

      Geo. W. Parkhurst, for assessors.

      A. Perry, counsel.
    The relators have no interest which justifies their prosecuting these proceedings. (1 Crary Spec. Proceedings, 157, 162; Colden v. Botts, 12 Wend., 234 ; Peoples. Stryker, 24 Barb., 650, 654 ; People v. Overseers, 44 id., 467 ; Starkweather v. Seeley, 45 id., 164-168 ; Case of Fifty-first St., 3 Abb., 232; Ex parte Mayor of Albany, 23 Wend., 277; People v. Schell, 5 Lans., 352; Suprs. of Orleans v. Bowen, 4 id., 24; People v. Collins, 19 Wend., 56, 64, 65.) The writ can only issue to court officers, and to review judicial acts. (1 Crary Spec. Pro., 160; Dillon Mun. Corp., 692; Bacon Abr., Cert., F.; Haw. Pl. Cr., chap. 27, §§ 41,43 ; Pugsley v. Anderson, 3 Wend., 468 ; Pearsall v. Comrs. of N. Hempstead, 17 Wend., 15; People v. Mayor of N. Y., 2 Hill, 9 ; People v. Suprs. of Queens, 1 id., 195, 200; People v. Board of Health, 33 Barb., 344, 346 ; People v. Suprs. of Livingston, 43 id., 232; 12 Abb., 88; 20 How., 458.) The writ can only bring up proceedings which remain before the tribunal to which it is addressed. (30 N. Y., 72 ; 43 Barb., 539; 48 id., 173; 15 Wend., 198; 17 id., 15 ; 3 id., 468; 49 Barb., 136; 22 Wend., 132, 136; 45 N. Y., 772, 775 ; 49 id., 655.) The assessors had jurisdiction and their action cannot be reversed on certiorari. (People v. Hurlburt, 46 N. Y., 110; People v. Smith, 45 id., 772; Howland v. Eldridge, 43 id., 460, 461; 30 id., 72; Buff. & S. L. R. R. v. Suprs. of Erie, 48 id., 93, 98, 99; People v. Halsey, 37 id., 344; People v. Delaney, 49 id., 655 ; People v. Barker, 48 id., 76, 77; People v. Ogdensburgh, 48 id., 390, 394.)
   Talcott, J.:

While the defects, alleged in the proceedings in the attempt to bond the several towns specified in the foregoing titles, differ in many particulars, yet one fatal defect is common to all the cases, namely, a total want of jurisdiction and power, on the part of the county judge of Niagara county, to appoint the bonding commissioners for either of the towns in question. Following the decision of the court of last resort, in the case of the People ex rel. Aikin v. Morgan et al., Assessors of the town of Scipio, we must hold that it is incumbent upon the respondents to show that the lawful authority existed for bonding the town in aid of the railroad, at the time of the institution of the proceedings for that purpose. Without such authority there was no foundation for the proceedings which the relator seeks to have reviewed, and the assessors could have had no jurisdiction, whatever, to do the act complained of. Such jurisdiction cannot be presumed, but must be affirmatively shown.

By the act of April 19, 1869, under which, alone, the counsel for the respondents, in these cases, attempts to maintain the validity of the proceedings to bond these towns, the right to bond towns in aid of this railroad, is confined to the towns in certain specified counties, and in the western assembly district of Niagara county, situate along the route of the Lake Ontario Shore Railroad. Until such route is located and defined according to law, it cannot, of course, be known or made to appear, that any particular town is within the provisions of the act. And the location of the road, in such manner that the town in question lies along the route, is, as was held in the ease of the town of Seipio, a condition precedent to the lawful institution of any proceedings under the act to bond such town in aid of the road. Indeed, we can see no distinction in principle, so far as this question is concerned, between the cases presented to us and the case of the town of Seipio, before referred to; and, upon the authority of that case, as we understand it, we must hold that the objection, that it does not appear that either of the towns in question, is situated along the route of the Lake Ontario Shore Railroad, as it had been definitely located according to law, is fatal, upon these returns, to the entire proceedings by which the bonding of the four towns in Niagara county has been attempted. This conclusion leads to a vacation of the proceedings brought up, in conformity with the judgment of the Court of Appeals in the case referred to, unless the objection that the certiorari comes too late, is to prevail. There is no statute which prescribes the time within which a common-law certiorari must issue. The lapse of time which may have accrued between the issuing of the certiorari and the acts and proceedings sought to be reviewed, is an objection addressed to the sound discretion of the court, in view of all the facts and surrounding circumstances. The time of limitation to writs of certiorari, which, in the absence of special circumstances, has been usually adopted by the court, has been two years, in analogy to limitations upon writs of error. In the cases of the four towns in question, none of the affidavits of the assessors was made until the month of August, in the year 1870'; and they were, none of them, filed as directed, until after that time. The principal writ of certiorari, directed to the county clerk of Niagara county, in each case, is tested Hay 13th, 1872—-less than two years from the time when the assessors assumed to do any act by which the relators and those whom they represent could be prejudiced; and, from the time when the principal writ was issued, the cases appear to have been prosecuted by the issue of ancillary writs, and otherwise, with all due diligence. The propriety of the ancillary writs only appeared after and upon the return of the principal writ. The commissioners, who are alleged to have been appointed by the county judge, in 1869, did not attempt to do anything whereby the relators, or those they represent, could be prejudiced, before the fall of 1871, when the commissioners for three of the towns assumed to enter into contracts with the railroad company, to subscribe, on behalf of the towns for which they respectively assumed to act, for the stock of the railroad company. The fact that the commissioners have issued and delivered the bonds to the railroad company, affords no reason, under the circumstances, why the usual limitation of time upon the writ of certiorari should be shortened. Both the commissioners and the railroad company were aware, at the time of the issue of the bonds, that a certain portion of the tax-payers of these towns felt themselves aggrieved by the proceedings to bond tlieir respective towns, and claimed that the proceedings had been improperly and illegally conducted, and had procured writs of certiorari to be issued out of this court, with a view to the reversal of the proceedings. And it requires no great stretch of the imagination to suppose that both the commissioners and the railroad company had notice, in fact as well as by presumption of law, of many of the defects which were alleged against the proceedings at the time when the bonds were issued and received. It does not appear that any of the bonds are in the hands of bona fide holders, who have advanced value in good faith upon their security. And we are not called upon, in any manner, to consider what the rights of such holders, if any there be, may amount to, or how, or against whom, they may be enforced. We think, therefore, that the objection that the writs of certiorari were too late, cannot prevail in these cases. It was suggested on the argument, that the court had power to award a further return, by which, the apparent jurisdictional defect, to which we have adverted, might be cured. But, it is stated by the counsel for the relators, and such statement was understood not to be controverted by the respondents, that, in point of fact, there had been no such location of the Lake Ontario Shore Railroad at the time when the proceedings under review were had, as to bring the towns in question within the operation of the act of 1869, in reference to bonding.

On the whole, and without considering the various and grave objections to the proceedings in detail, we are of opinion that, for-the apparent want of jurisdiction hereinbefore referred to, the proceedings to appoint commissioners, and the proceedings of the assessors in regard to these four towns in Niagara county, namely, Newfane, Wilson, Lewiston and Somerset, must be vacated, and. judgment be entered on each of the writs of certiorari, vacating the proceedings accordingly.

Present—E. D. Smith, P. J., Gilbert and Talcott, JJ.

Judgment entered vacating each writ.

      55 N. Y., 587.


author: E. Darwin Smith, J.:

text:
    SETH P. BLISS Respondent, v. PETER MISNER. Appellant.

      Fixtures—Personal property—how title to, transferred—Mwge/r.

    Where real and personal estate are sold together at auction, a subsequent written contract of sale of the real property, not mentioning the personal, presents no question of merger or estoppel.
    On payment of the purchase-price the title to personal property passes.
    This action was brought to recover the possession of personal property, consisting of saws, belting and machinery, previously attached to, and used in a saw-mill. They were detached from the mill by the owner, and removed to the defendant’s house, and there stored. The mill property was subsequently sold at auction, and the plaintiff claims that the property which had been thus used with the mill, and as fixtures thereof, were at the same time sold. A written contract of sale of the real estate, was executed some days after the auction sale.
    The plaintiff purchased the property at the sale, and paid his bid upon the purchase, and subsequently demanded the property of the defendant; and, delivery thereof being refused, brought this action and recovered at the circuit; and, judgment having been entered up upon said verdict, the defendant appeals to this court.

      Nichols & Allen, for the appellant.

      Geo. Wadsworth, for the respondent.
   E. Darwin Smith, J.:

The exception to the refusal of the circuit judge to nonsuit the •plaintiff, is not well taken. The appeal comes before us, as upon a bill of exceptions strictly, and the evidence not being contained in the bill, we cannot determine that the nonsuit was improperly refused. The disconnection and removal of the saws, belting and other articles from the saw-mill, changed their character from fixtures to personal property, which could be sold and transferred by parol.

The question litigated at the trial, was, whether these articles were in fact sold as personal property, upon and with the sale at auction of the real estate. The circuit judge fairly submitted this question to the jury as a question of fact, and their verdict settles the fact in the plaintiff’a favor.

The written contract of sale of the real estate, executed some twenty days after the auction sale, presented no question of merger or estoppel, and the decision of the circuit judge was correct upon that point. This contract was simply an element of evidence for the jury, but not conclusive. It required no written contract to sell personal property. The payment of the price bid, completed the sale and passed the title of such property to the plaintiff, if it was really embraced within the sale. No error, we think, was committed in the rulings of the judge at the circuit, and the judgment should be affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.