author: Per Curiam.

text:
    THE INYO CONSOLIDATED MINING, &c. CO., Appellant, v. THOMAS B. PHEBY, Respondent.

      .Inspection of boohs, vouchers and accounts—when granted to enable defendants to frame his answer.

    Where the action is brought to recover the amount of a balance of moneys,, alleged to have been received by defendant as plaintiff’s agent, and-the-complaint is drawn upon the face of certain accounts so rendered by-defendant, he is entitled to an inspection of the same, and of the vouchers-: filed by him in support thereof, to enable him to frame his answer.

      Though the complaint contain an averment that defendant “ refuses to pay said balance and has converted the same to his own use,” it will not beheld on a motion for inspection, etc., that the averments as to the accounts, are immaterial for the purposes of defendant’s said motion.
    In such a case defendant should be allowed an inspection of his books of account as such agent, if necessary to enable him to meet the appearance of the accounts set forth in the complaint, and make a substantial allegation as to what the accounts altogether showed.
    That it is alleged that such books were falsely and fraudulently made up-by defendant, renders it the more proper to grant an inspection.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided December 3, 1883.
    Appeal by plaintiff from an order granting to the defendant an inspection of certain books and papers in the possession of plaintiff, for the purpose oí properly drawing the answer. The books, papers, etc., of which an inspection was desired, were the following:—the journal and ledger kept by defendant as superintendent of plaintiff ; a certain balance sheet taken therefrom ; and certain vouchers in support thereof.
    Further facts appear in the opinion.

      Easton & Jennings, for appellant.
    —The order sought is not a matter of right, but a "privilege, which will only be granted in an extreme case, where the refusal would involve the loss of a claim or defense (Harbison v. Van Valkenburgh, 5 Hun, 454; Stanton v. The Delaware M. Ins. Co., 2 Sandf. 662; M. E. Ins. Co. v. N. Y. L. & Imp. Co., 55 How. Pr. 351; Strong v. Strong, 1 Abb. N. S. 233; Gelston v. Marshall, 6 How. Pr. 398), and must in all cases be-brought within the requirements of General Rule 14 (Code Civ. Pro. § 804).
    The action being to recover damages Cor conversion, the only answer necessary for the defendant to interpose under which his defense will be fully preserved, and under which he could offer evidence tending to explain the plaintiff’s claim, would be a denial that he had converted the funds. ■of the plaintiff (Gelston v. Marshall, supra; Mora v. McCredy, 2 Bosw. 669).
    The application should never be granted when the books and papers can be reached by subpoena, duces tecum (Van Zandt v. Cobb, 12 How. Pr. 544; Commercial Bank of Albany v. Dunham, 13 lb. 541; Brevost v. Warner, 8 lb. 321; Iron Co. v. Loan Co., 55 lb. 351), and § 888 of the Code of Civil Procedure has made provision for the production of books, &c., of a corporation by subpoena, daces tecum (Central Cross-Town R. R. v. 23d St. R. R. Co., 4 Week. Dig. 324).
    It is not enough that the books sought may contain facts or evidence. The petition must show that papers, &c., sought are absolutely necessary in protecting the defendant’s right by answer (Stanton v. Delaware Ins. Co., 2 Sandf. 662; Campbell v. Hodge, 2 Hun, 308; Walker v. Granite Bank, 19 Abb. 111; Brownell v. Nat. Bk. Gloversville, 10 Week. Dig. 17). The papers sought must contain the facts, not information from-which they maybe obtained, and the petition must so state (Brooklyn Life Ins. Co. v. Pierce, 7 Han, 236; Morrison v. Sturgin, 26 How. Pr. 177; McCallister v. Pond, 15 lb. 299; Thompson v. E. R. R. Co., 9 Abb. N. S. 212; Marquette v. Note Company, 7 Robt. 77; N. E. Iron Co. v. N. Y. L. & Imp. Co., 55 How. Pr. 351; Davis v. Dunham, 13 ld. 425). Fishing expeditions will not be permitted (Strong v. Strong, 1 Abb. N. S. 239).
    The practice of allowing discovery is not favored (Houseman v. Sterling, 61 Barb. 347; De Bary v. Stanley, 5 Daly, 412). The courts look upon applications with suspicion (Jockling v. Brown, 3 E. D. S. 539).

      Frank E. Blackwell, for respondent.
    —Although this is technically an action for a conversion, the proper determination of it requires the examination of a long account. On this ground it is distinguishable from the case of Mora v. McCredy (2 Bosw. 670).
    Where there is reason to believe that evidence material to the issue exists in documents, admitted by the other party to be in his possession, and no great practical inconvenience will follow from allowing a party to inspect them, a discovery will be allowed (Lefferts v. Brampton, 24 How. 257; Union Paper Collar Co. v. Met. Collar Co., 3 Daly, 171; Case v. Banta, 9 Bosw. 595; Ruberry v. Binns, 5 ld. 585).
    The books and documents in question belong equally to both parties. They are the private books of the superintendent delivered over to the general manager of the company for its information. Under such circumstances it was the uniform rule under the old practice to grant inspection (Kelly v. Eckford, 5 Paige, 548; Case v. Banta, 9 Bosw. 595; Manley v. Bonnel, 11 Abb. N. C. 124; Ruberry v. Binns, 5 Bosw. 685).
    The Code purposely leaves a large discretion with the court in respect to the granting of this relief (§ 804). The only matters required to be established are the possession of the documents by the adverse party and the materiality of their contents (Id. § 803; Stillwell v. Priest, 85 N. Y. 649).
   Per Curiam.

—The complaint alleged that the defendant was the superintendent of the plaintiff, and that it was his duty to receive property and moneys of the company, to pay certain expenses and to pay certain balances to the plaintiff; that on a day specified, the defendant reported that he had a balance in his hands belonging to the plaintiff of $10,872; that after that date the defendant received certain other large sums specified in the complaint, for the plaintiff ; that afterwards the plaintiff demanded from defendant a statement of the amounts received and disbursed by him, and in response to such demand the defendant delivered various vouchers, 11 by which it appeared that he had paid out and expended for this company” “ the sum of $19,770, and that there is still in his hands belonging to said company and unaccounted for the sum of $50,468 ;” that the plaintiff demanded payment of this amount; that defendant has neglected and refused, and still neglects; and refuses to pay the same or any part thereof, “ but has-converted the same to his own use.” On the application it was shown that at the time the defendant delivered to-the plaintiff the vouchers last referred to in the'complaint, he also delivered certain books containing accounts made by him of his doings as superintendent. The plaintiff-presented in his affidavit statement that these accounts were false.

The plaintiff claims that the action is for conversion of money received by defendant and therefore that the-allegations of the complaint as to the vouchers, etc-., are-immaterial. If they were material, there is no reason for-saying that the defendant should be deprived of the benefit of (he face of accounts presented by him, on which the complaint is drawn against him. It does not seem just, when the plaintiff has used allegations as if they were material and proper to be answered, that he should take a different position when it is for his interest to do so, and which it-will not by the face of the record, appear thereafter that he has taken.

To meet the allegation upon the appearance of some off the accounts, it was proper to allow the inspection of the accompanying accounts so that the defendant might make-a substantial allegation in his answer as to what the accounts altogether showed.

It was charged that the accompanying accounts had been fraudulently and falsely made by the defendant. Om this charge, it was the more proper, that the defendant'should inspect them.

It is not meant, that if the action had been for conversion, and there were no immaterial allegations, that an inspection should have been ordered. The case is decided on its peculiarities and cannot be a-precedent when such peculiarities do not exist.

Order affirmed, with $10 costs.


source: Caselaw Access Project

author: Edward M. Shepard, Referee. Per Curiam.

license: Public Domain

text:
    MATTHEW J. FOGARTY, Respondent, v. HENRY J. CULLEN, Jr., as Administrator, etc., Appellant.

      Partnership—liability of representative of deceased partner for firm, debts.

    Upon the death of one of several partners, the survivors alone are liable at law for the debts” of the firm, and the liability of the representative of the deceased partner is in equity, and is that of a surety, to be enforced by the creditor upon siiowing either that the survivors are insolvent in fact, or that he has exhausted his remedy at law against them.
    "Where the survivors form a new firm assuming the liabilities and taking the assets of the old firm, a specific agreement to accept the liability of the new firm to the exclusion of that of the representative of the deceased partner, must be proven by satisfactory evidence, and there is no presumption of law favoring it.
    'That the creditor looked to the survivors for payment and accepted interest from them, and asked them to pay part of his debt, and did not press them for payment till fourteen months after the death of the deceased partner, raises no presumption that he has agreed to release the representative of said decedent from his secondary liability.
    Before Sedgwick, Ch. J., Freedman, and O’Gorman, JJ.

      Decided December 3, 1883.
    Appeal by defendant from judgment in favor of plaintiff •entered upon the report of a referee.
    Action to recover against the representative of a deceased partner for services rendered to their firm, upon the allegation that the surviving partners are "insolvent. The defense was a denial of the contract between plaintiff ■and the firm, and a claim that defendant’s intestate was discharged from liability owing to an alleged agreement made with the survivors, whereby the money due plaintiff was contributed by him as capital to the co-partnership newly formed by said survivors.
    The following facts were found by the referee : That from January 1, 1879, to December 10, 1880, the defendant intestate, Philip L.-Freneau, with William A. Hawkins and Clarence Brainard, were co-partners and the firm was dissolved by the death of Mr. Freneau; that plaintiff was

      employed by said firm during said term, at a salary of $3,000 per annum, payable monthly, and a commission of ten per cent, of the profits during each year ; that ten per cent, of the profits for 1879, amounted to $3,761.55, and for 1880, down to December 10, $3,748.90 ; that the only' payments made on account of these commissions were $161.09 and $139.38; that the defendant was the administrator of Mr. Freneau ; and that the surviving partners were insolvent.
    Further facts appear in the opinion of the referee, which was as follows:
   Edward M. Shepard, Referee.

—After the death of Mr. Freneau, the two surviving members of the firm, Messrs. Hawkins & Brainerd alone were at law liable to the plaintiff (Waydell v. Luer, 3 Den. 410, per Lott, S.). The plaintiff had merely an equitable recourse to the Freneau estate upon his showing either that the survivors were insolvent in fact, or that he had exhausted his legal remedy against them (Lawrence v. Trustees, 3 Den. 577; Van Riper v. Poppenhausen, 43 N. Y. 68; Pope v. Cole, 55 N. Y. 124). The Freneau estate was therefore a surety to the plaintiff for the payment of his debt by the survivors; and in this action l he estate may avail itself by way of defense of any conduct on plaintiff’s part which violated its rights or suspended its remedies as a surety (Millerd v. Thorn, 56 N. Y. 402; Colgrove v. Tallman, 67 N. Y. 95; Dodd v. Dreyfus, 17 Hun, 600; Maier v. Canavan, 8 Daly, 272; Billborough v. Holmes, L. R. 5 Ch. D. 255). If, therefore, the plaintiff agreed that the money due him from P. L. Freneau & Co. should be contributed as capital to the copartnership newly formed by Messrs. Hawkins & Brainerd for the term of the copartnership, so that he could no longer at any time demand the debt from them, the Freneau estate was discharged.

The defendant contends that such an agreement may be inferred from slight circumstances. He relies upon authorities, . holding that where one partner has retired and the remaining partners (either with or without new partners), have as a new firm taken the assets and assumed the liabilities of the old firm, the court is very ready to find that a creditor of the old firm continuing to deal with the new-firm has substituted its liability for the liability of the old firm. These authorities, however, are not directly in point. The defense here is not that the plaintiff took Hawkins & Brainerd as his sole debtors, but the very different, though doubtless equally valid defense, that he contributed the debt due him to the new firm as capital at the risk of the new business. There seems to be no sound reason for not requiring abundant proof of such an agreement. If it were made, it radically changed the relations of the parties. It was an agreement of a kind likely to be definitely and expressly made, rather than to arise (as the substitution as debtors of a new firm, for the old firm it succeeds, oftentimes arises), out of many events of business intercourse, which although separately not considered with care, have still gradually led to and exhibited a plain understanding and intention on both sides (Harris v. Farwell, 15 Beavan, 31, 35).

The defendant’s authorities are beside applicable chiefly to the case of a retiring and not of a deceased partner. It i* true in the case of the remaining partners taking the firm assets and assuming the firm debts, and the creditor being advised of the change, that, not only a retiring partner, but also the estate of a deceased partner, has certain privileges of suretyship. But there is the important distinction, that until some new agreement is made, the retiring partner and the, remaining partners are together jointly liable for the debt; while after the death of one partner, the survivors alone are jointly liable for the debt. If there were originally three partners, after the retirement of one, the creditor still has three debtors jointly held to him, and the joint property of those three is the primary fund for his payment. But after the death of one of the partners the creditor has only two debtors ; and to them and to their joint property he is bound in the first instance to look. In the case of the retiring partner, inasmuch as he is still directly and primarily liable to the firm creditor, any exclusive dealing of the creditor with the remaining partners and exclusive recognition of them as his debtors, being a course of conduct inconsistent with an intention to hold all of the original debtors, may come to import an intention and agreement to take the joint liability of the remaining partners in lieu of the joint liability of the retired and remaining partners together. As has been clearly pointed out, the joint liability of the remaining partners may be a far better security than the joint liability. of the retiring and remaining partners (Waydell v. Luer, supra, per Lott, S. 410).

Even this rule, however, is very carefully guarded. Although slight evidence may be sufficient to establish the novation, the agreement must be plainly brought home to the creditor, whose rights and security cannot be changed except with his consent. Receipt of interest by the credit- or from the remaining partners, his proof of his claim against the new firm as for money had and received to his use, and his entering into an arbitration of the claim with the remaining partner, have been held insufficient to discharge the retiring partner (Harris v. Farwell. 15 Beav. 31; Kirwan v. Kirwan, 2 C. & M. 617; Blew v. Wyatt, 5 Car. & P. 397; Gough v. Davies, 4 Price, 200; Oakford v. European, &c. Co., 1 Hem. & M. 182; Harris v. Lindsay, 4 Wash. C. C. 271). Blew v. Wyatt, was the case of a clerk remaining in the employ of several successive firms and fully aware of the changes. He was permitted to recover against the original partners. Lord Lyndhurst observing “that mere knowledge tif the changes will not be sufficient : there must be some agreement shown between the parties.”

The creditor may, indeed, gain the credit of the new firm without losing the security of the oldfirm. The agreement of the new firm with the old firm may be a consideration enuring to the benefit of the creditor, though he remain, passive and surrender nothing (Harris v. Farwell, 15 Beav. 31; 1 Lindley Partnership, [4th Ed.] 449).

But in the case of the deceased partner, any such exclusive dealing of the creditor with the survivors, and recognition of them as his debtors, does not prove a release by him of his possible future claim in equity against the estate of the deceased partner. For the creditor was bound to so recognize the survivors, and in the first instance exclusively look to them, for the plain reason that they were his sole debtors at law and his primary debtors in equity. As to the joint property of the survivors, he stood, without any agreement, upon the same basis as their new creditors (Ex parte Kendall, 17 Ves. 514). In this state, where the modern English rule is not followed, he could not, in the first instance, even in equity, join the representatives of the estate of the deceased partner with the surviving partners (Voorhis v. Childs’ Executor, 17 N. Y. 354; Wilkeson v. Henderson, 1 Mylne & K. 582). He must first exhaust his remedy against the survivors or show their insolvency. When, therefore, the creditor treats the survivors as his debtors, receives interest or partial payment from them, sues them, delays for years demanding money of them, proves his debt against them and receives dividends in bankruptcy, he has been held not to release his right to art equitable recourse against the estate of the deceased partner (Winter v. Innes, 4 Mylne & C. 101; Sleech’s Case [Devaynes v. Noble], 1 Meriv. 527, 540; Daniel v. Cross, 3 Ves. 277). In Sleech’s case, the Master of the Rolls said (p. 569).: "Ex hypothesis the surviving partners are liable to the payment of this debt, and ought in the first instance, to be called upon for the payment of it. How is it then that a credit- or, by acting upon that acknowledged liability to the extent that his convenience and occasions may happen to require, is quoad the residue of his debt to be placed in a worse sitúa tion than he would have quoad the whole if he had demanded no part of it ? Miss Sleech, by drawing a draft upon the surviving partners, recognizes them as her debtors. Such undoubtedly they were; but how does that affirma.tive act prove negatively that thenceforth no other persons ‘were to be her debtors?” In Hamersley v. Lambert (2 Johns. Ch. 508), Chancellor Kent held the doctrine to be fully established “ that neither delay nor lapse of time, nor dealing with the survivor, nor calling for and receiving part of the debt from the survivor amounts to a waiver or bar of the claim upon the assets of the deceased.”

In my opinion, therefore, the fact that the plaintiff evidently looked to Messrs. Hawkins and Brainerd for payment and accepted interest from them, and asked them to pay him part of his debt, and did not press them for payment for fourteen months after the death of Mr. Freneau, raises no presumption that he had agreed to release the defendant’s secondary liability to him, which he may well not have had in mind at all. On the contrary, it was conduct perfectly consistent with his having a primary claim against Messrs. Hawkins & Brainerd and a secondary claim against the Freneau estate as surety.

The case must, therefore, depend upon the interview between Hawkins and Brainerd and the plaintiff in March, 1881. The witnesses differ materially in their recollections of the conversation at that interview. Hawkins and Brainerd say that they then agreed with the plaintiff to employ him at a salary of $3,000 a year and ten per cent, of the profits, and that in consideration of that employment he agreed to leave in the business as capital at its risk the money due him upon which he was to .receive 6 per cent, interest. The plaintiff admits the employment, but denies that any agreement was made to leave his money. It would certainly be at best unsatisfactory to find an agreement constituting plaintiff a partner from conflicting- recollections of a single conversation unsupported by other circumstances. Testimony as to conversations, though given by the most honest and careful witnesses, cannot, through the imperfections of memory and the blending of subsequent events and ideas .with earlier and separate transactions, rank very high as evidence (Law v. Merrills, 6 Wend. 268; 1 Greenleaf’s Ev. [13th Ed.] note to § 200; Learned v. Tillotson, per Sedgwick, Ch. J., at the special term of the superior court).

If conceded facts and the behavior of the parties make one or the other version of a conversation the mere probable, that version ought ordinarily to be adopted.

It is admitted that plaintiff was offered a partnership and declined the offer. It is plain that neither party at the interview of March, 1881, supposed that the plaintiff had become a partner. The plaintiff was to receive as compensation $3,000 and 10 percent, of the profits,—precisely what he had in Mr. Freneau’s lifetime. His services were presumably no less valuable and necessary to the new than to the old firm. It is not claimed that he was to have any share of the profits for his money beyond 6 per cent, interest upon it'. But he had had 6 per cent, interest upon the money in Mr. Freneau’s lifetime, and would, as matter of course, continue to receive the same interest so long as the principal remained unpaid ; and I cannot think that the plaintiff put his money at a different and far greater risk than it had been, without receiving some additional advantage. When the plaintiff asked Mr. Hawkins, in August, 1881, for some of the principal sum, both acted as if the plaintiff made a claim, which it was simply inconvenient for Mr. Hawkins to meet, and not as if the plaintiff made a claim in violation of the agreement between them. I do" not doubt that Messrs. Hawkins & Brainerd, in or about March, 1881, found from the plaintiff that he did not then require his money. I do not doubt that the plaintiff’s relations to Messrs. Hawkins & Brainerd disinclined him to insist upon the payment of his money. But I cannot find upon the evidence, that the plaintiff made any agreement which would debar him from demanding and at law recovering the money from Messrs. Hawkins & Brainerd. The estate of the deceased partner as surety has not therefore any valid ground of complaint of the plaintiff’s dealings with the surviving partners.

It is conceded that the apparent amounts of the plaintiff’s ten per cent, of the profits of the original firm of P. L. Freneau & Co. were $2,761.55 for 1879, aud $2,748.90 for 1880: and that those amounts were credited to him as shown, by the books of that firm. The defendant insists that these were not actual but estimated profits; and that the actual profits were about 65 per cent, of the amount of the apparent profits. I think the burden was upon the defendant to establish, if it could be done, what deduction should be made from the profits as shown by the books of Mr. Freneau’s firm.

Butler, Stillman & Hubbard, and A. H. Joline, for appellant.

—Where an old firm has been dissolved and a new firm has agreed to assume its liabilities, but slight circumstances are required to justify finding an intention on the part of a creditor of the old firm, who had notice of the dissolution and of the agreement by the new firm to accept the liability of the old firm in place of the liability of the old (Regester v. Dodge, 61 How. Pr. 107; Ex parte Williams, Buck. 13; In re Smith, Knight & Co., L. R. 4 Ch. App. 66; In re Family Endowment Soc., L. R. 5 Ch. App. 118; Bank of Australasia v. Flower, 1 L. R. [P. C.] 27). A creditor who assents to a transfer of his debt from an old firm to a new firm and goes on dealing with the latter for some time, making no demand for payment against the old firm, may not unfairly be inferred to have discharged the firm, “ and if the question arises in equity, upon an attempt to have recourse to the estate of a deceased partner, the court will consider all the circumstances of the case and decline to assist the creditor if, upon the whole, justice to all parties so requires ” (Collyer Partn. § 570 [note p. 557, 2d Am. Ed.]; Ex parte Kendal, 17 Vesey, 522, 525; Oakley v. Pusheller, 4 Cl. & Fin. 207; Brown v. Gordon, 16 Bear. 302; 1 Lindsley Partn. 366, 367). The dictum of Chancellor Kent in Hamersley v. Lambert (2 Johns. Ch. 508), is not in accordance with the later decisions, and is not authorized in its extent by either cases or principles (Fisher v. Tucker, 1 McCord's Ch. 173; Collyer Partn. § 600, note).

The payment of $139.38 on February 6, 1882, was, I think, plainly intended as a payment upon the debt of the old firm. It was that debt which was discussed between the plaintiff and Mr. Hawkins at the time of that payment. That sum will therefore be deducted from the plaintiff’s recovery.

There is, perhaps, some ground for plaintiff’s contention that because in equity costs are in the discretion of the court, they should even in an action against an administrator be directly allowed or disallowed by a referee who is to hear and determine all the issues. I do not, however, find that a distinction in this respect between equitable and common law actions against an administrator or executor has ever been clearly established; and there are a number of cases which in general terms state it to be' the duty of The referee to simply certify the facts, leaving the award or refusal of cost to ■ the court. I have therefore deemed it the wiser course not to decide the question of costs, but to include in the findings such a certificate.

The referee’s distinctions, (1) that the defense in this case was “not that plaintiff took Hawkins and Brainerd as his sole debtors,” and (2) that the case was not that of a retiring partner, but of a deceased partner, are not substantial. (1.) The defense in the case was that the plaintiff took Hawkins and Brainerd as his sole debtors. There was a novation—a substitution of a new obligation for an old one. (2) “The same.acts of the creditor which operate in discharge of the-retiring partner will be equally effectual in favor of the deceased partner’s estate ” (Collyer Partn. § 595).

Bagley & Thain, for respondent.

Per Curiam.

—The principal question in the case, is whether the referee erred in certain findings of fact. The result of the examination of the evidence is, that the court does not come to different conclusions from those reached by the referee. The exceptions to the admission of testimony are not sustained. The opinion of the referee discusses satisfactorily the law and the facts of the case.

Judgment affirmed, with costs.


text:
    DENNIS HINCHY v. THE MANHATTAN RAILWAY CO.

      Damages—when too remote.

    The complaint alleged that defendant negligently allowed sparks of fire to escape from one of its locomotives, which sparks entered plaintiff's house, setting fire to his curtains, furniture, etc., and that in his efforts to extinguish the fire, plaintiff’s hand was burnt without any negligence on his part, etc.,—Held, that upon the complaint, as framed, there could be no recovery for the personal injury, the damage being too remote.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided December 3, 1883.
    Exceptions taken by plaintiff heard in the first instance at general term. The complaint alleged, that while a train of cars and a locomotive belonging to defendant were passing, “ the defendant carelessly and negligently allowed sparks of fire to escape from its said locomotive, which sparks entered the dwelling-house occupied by the plaintiff, thereby setting fire to the curtains, furniture and property of the plaintiff; that in his efforts to extinguish said five the plaintiff’s left hand without any negligence on his pavt was sevevely burned, and the plaintiff thereby suffered, and still suffers, etc.” The complaint contained no demand of damages to property and on the trial, counsel for plaintiff, in opening the case, stated that no claim was made for damage to property, it having been insured ; that the case was founded upon the injury to plaintiff’s hand sustained in the course of his endeavor to extinguish the fire communicated to the property.
    The counsel for defendant then moved to dismiss the complaint, on the ground that the damage was too remote. The motion was granted, and the plaintiff’s exception to this ruling was directed to be heard, in first instance at general term.

      Smith, Allen & Smith, for plaintiff.
    —The complaint states facts sufficient to constitute a cause of action (Rexter v. Starin, 73 N. Y. 601). It was not the necessary result of plaintiff’s efforts to extinguish the fire that his hand should be burned. As in Rexter v. Starin, “ it was for the jury to determine whether the act of plaintiff was a prudent and proper one.” There is nothing in Eckert v. L. I. R. R. Co. (43 N. Y. 502), in conflict with these views.
    ' The damages were not too remote. It was the defendant’s negligence that put the plaintiff in a position in which he was forced to make so perilous a choice, and the defendant is liable for the consequences (Coulter v. Am. M. Un. Express Co., 5 Lans. 68; Buel v. New York Cent. R. R. Co., 31 N. Y. 319). If the plaintiff was injured by acting precipitately and under excitement, which precipitation and excitement were caused by the negligent act of the defendant, he can recover (Vanderburgh v. Truax 4 Den. 464; Scott v. Sheperd, 1 Smith's L. C. 5th [Am. Ed.] 549).
    It was plaintiff’s duty to act as he did. If the plaintiff had made no efforts to extinguish the fire and to prevent damage therefrom, and was in a position so to do, he could not have recovered damage for the destruction of his property (Wharton Neg. § 877; Ill. Cen. R. R. Co. v. McClelland, 42 Ill. 355; Ward v. St. P. R. R., 29 Wis. 144).

      Deyo, Duer, & Bauerdorf, for defendant.
    —For a person engaged in his ordinary affairs or in the mere protection of property, knowingly and voluntarily to place himself in a position where he is liable to receive a serious injury, is negligence which will preclude a recovery for an injury so received. But when the exposure is for the purpose of saving life, it is not wrongful, and therefore not negligent, unless such is to be regarded either rash or reckless (Eckert v. L. I. R. R. Co., 43 N. Y. 402). Rexter v. Starin (73 N. Y. 502) is not in conflict with the Eckert case. Plaintiff’s injury was due to his voluntary act, and that the negligence was not the causa causans of the injury to his hands, and consequently is too remote to enable him to recover, see Ryan v. N. Y. Central, 35 N. Y.
      210; Tonawanda R. R. Co. v. Munger, 5 Den. 255; People v. Mayor, etc., 5 Lans. 524.

   Per Curiam.

—The ancient rule that the allegations of a pleading are to be taken as stating the most favorable jjossible case for the pleader, and therefore that a fact, necessary to the cause of action, is not to be considered as-existing if-it be not alleged, must be applied in the present case. There being essential- omissions, no liberality in construing what appears, would cure the. defect. The-plaintiff alleges, “ that in his efforts to extinguish said fire the plaintiff’s left hand, without any negligence on his-part was severely burned.” There is no allegation that at the time he made the effort to extinguish the fire, the fire was spreading to other property than that actually burned, or that there was an appearance of the fire endangering life or other property, or that the effort was made for the purpose of preventing the fire imperiling life or other .property or causing further damage. From the pleading it is to be understood, that the facts of the case would not justify such allegation. It is to be taken that the fire was of a kind that did not threaten injury to person or further-damage, and that the evidence would so show. In the-latter case the party guilty of the negligence is not deemed to be responsible because the negligent act, it is deemed was not the proximate cause of the effort to extinguish.

The allegation that the effort to extinguish was without negligence on his part does -not increase the scope of the pleading, for this averment being equivalent to alleging that the defendant’s negligence was the sole cause of the damage, avails nothing, unless beyond it the pleading adequately states that the negligence was the cause of the damage.

For these reasons the complaint was properly dismissed.

Plaintiff’s exceptions overruled, defendant to enter judgment with costs.


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

text:
    THE MAYOR, &c., of N. Y., Respondent, v. THOMAS COOPER, Appellant.

      Contract for sale of docle property—construction of terms of sale —repairs to he made in discretion of commissioners.

    C. purchased of the Mayor, &c., of the City of New York, the right to use for a term of years a certain pier for wharfage purposes, etc., which sale-was made expressly subject to the published terms of sale, applying also-to rights in other dock property sold at the same time, and which contained the following provisions : “ The Department will make, either prior to the commencement of the lease in each case, or as soon thereafter as practicable, such repairs to any of the above-named premises in the judgment of the commissioners needing them, as they may consider necessary to place the premises in suitable condition for service during the term for which leases are sold ; but all the premises must be taken in the condition in which they may be on the date of commencement of lease, and no claim that the property is not in suitable condition at the commencement of the lease will be allowed by the Department No claim will be received or considered by the Department for loss of wharfage, or otherwise, consequent upon any delay in doing the work of repairing, or consequent upon the premises being occupied for repairing purposes.”
    In an action by the Mayor, &c., for rent falling due about a year thereafter, C. interposed a counter-claim for damages for failure to repair, etc., which the court refused to entertain, substantially, on the ground that there could be no recovery thereon, holding that evidence of the condition of the pier at the time of"the commencement of the lease was immaterial.

      Held, error that the above provisions in the terms of sale constituted a contract, under which the commissioners were bound to form a judgment,, which need not he oral or quasi-judicial, as to whether the pier in question was in need of repairs ; that whether or not, this judgment was formed could be shown by circumstantial evidence including the force of legal presumptions, and evidence that the pier was in a plainly dilapidated condition, was of this character and therefore admissible.

      Further held, that the discretion of the commissioners as to the extent of the repairs to be made in each case was not absolute.

      Further held, that the clauses providing that no claim that the property is not in suitable condition at the commencement of the lease, nor for loss-on account of “ any delay” in making repairs, will be allowed, do not prevent a recovery herein.

      Before Sedgwick, Ch. J., Freedman, and O’Gorman, JJ.

      Decided December 17, 1883.
    Appeal by defendant, from judgment' in favor of plaintiffs, on verdict for plaintiffs, directed by the court at trial ■term.
    The complaint alleged that the plaintiffs sold to the defendant the right to go into possession and use for wharf purpose the pier No. 60, and to collect the wharfage of the. pier for three years, for which the defendant promised to pay quarter-yearly $687.50, and demanded judgment for one such amount that had not been paid. The sale was made in March, 1881, and. the sum demanded was for the quarter from November 1, 1882, to February 1, 1883.
    On the trial it was virtually admitted that, the sum claimed in the complaint was due, but the defendant claimed that the plaintiffs had committed a breach of agreement on their part for which the defendant was entitled to recover damages in the sum of $2,000, by way of counter claim. The facts as to this were as follows : The purchase by defendant was expressly made subject to the terms and conditions set forth in the published notice of sale. This notice was for a sale of rights as to several piers. The sale •was made by the Commissioner of Docks. The terms and conditions of the sale were, “The department will make, either prior to the commencement of the term of the lease, in each case, or as soon thereafter as practicable, such repairs to any of the above named premises, in the judgment of the'commissioners needing them, as they may consider necessary to place the premises in suitable condition for service during the terms, for which leases are to be sold; but all the premises must be taken in the' condition, in which they may be on the date of said terms respectively: and no claim that the property is not in suitable condition, at the commencement of the lease, will be allowed by the «departments, and all repairs and rebuilding required and necessary to the premises during its term of lease, are to be done at the expense and cost of the lessee.

      “No claim will be received or considered by the department for loss of wharfage, or otherwise, consequent upon any delay, in doing the work of repairing ... or consequent upon the premises being occupied for repairing purposes.”
    The defendant asked several questions as to the condition of the pier at the beginning of the term, as to its being dilapidated at that time, and unfit for the use contemplated, and as to its being in a suitable condition for service. These questions upon plaintiff’s objection, were held to be irrelevant and immaterial, on the ground that it was immaterial what the condition of the pier was at the beginning ; that there was no absolute covenant to repair ; that it would be, under the counter-claim, necessary to show that in the judgment of the commissioners, the premises were out of repair ; and that a clause expressly provided that no claim should be made because of delay. The substance of the objection was, that, under no circumstances, could there be a recovery under the counter-claim. Exceptions were duly taken by the defendant. The defendant further offered to show the amount of loss sustained from the pier not being repaired. This was overruled under objection.
    The court thereupon directed a verdict for the plaintiffs in the amount claimed by them.

      James M. Fisk. for appellant.
    —It was error to hold as matter of law, that defendant could not recover because of the agreement that no claim for damages by reason of delay should be made. The grant being one made by a municipal corporation for valuable considerations received, is to be construed strictly against the grantor. For principle by which such grants are to be construed, see Langdon v. The Mayor (93 N. Y. 129).
    Considering the clauses in the terms of sale, what is the meaning of the same \ First, there is the absolute promise on the part of the plaintiff, that “ the Department will make such repairs.”

      This is an absolute representation to intending purchasers, that for the consideration of the rent to be paid, the wharfs will be put in such a condition as will enable the purchasers to use them. If any other construction prevails, there is no mutuality of contract; the grantee is bound to pay rent, but 'the grantor is free to do as he pleases. The clause, to the effect that “no claim that the property is not in suitable condition at the commencement of the lease will be allowed by the Department,” evidently means any claim for a reduction of rent, not for damages. There is nothing in the clauses which prevents the defendant from asking a court of law from considering or allowing it.
    Again, it might.be naturally construed as meaning that no claim will be considered or allowed in consequence of delay in repairing after the work of repairing had actually begun.
    The defendant having taken the agreement prepared' by another, and having upon its faith parted with value, should have a construction given to the instrument favorable to himself, and when the instrument is susceptible of two constructions, the one working injustice and the other consistent with the right of the case—that one should be favored which upholds the right (Noonan v. Bradley, 9 Wall. [U. S.] 395-407; Barney v. Newcomb, 9 Cush. [Mass.] 46). The intent exempting a party from liability must be plainly and distinctly expressed so that it cannot be misunderstood, it cannot be inferred from general words in the contract (Nicholas v. N. Y. C. H. R. R. R. Co., 89 N. Y. 370).

      George P. Andrews, corporation attorney, and E. Henry Lacomb, for respondents.
   By the Court.— Sedgwick, Ch. J.

—The terms of sale were made in general phrases, to be applied to the cases of several piers, in different states of needing or not needing repairs. They constituted a contract, virtually upon condition. The department agreed to make repairs to any of the premises, if it was the judgment of the commissioners that the premises needed the repairs. Again, if the commissioners considered that a certain amount or kind of repairs was necessary to place the premises in suitable condition for service during the term, then, in such case, the department agreed to make that amount or kind of repairs. The terms should not be so construed, unless there is no escape therefrom, as to lead to the conclusion that there was no contract of any kind. The fact that the parties used the promissory terms at all implies that they meant them to have some purpose. At the very least, a proper construction will not enlarge the ordinary meaning of words used, or supply new words, when the effect would be to declare that no contract was made, while with the words actually used according to their ordinary meaning, there would be a contract. Such a rule is implied in the decision of Danolds v. State (89 N. Y. 36), while in cases that involve the same fundamental principle, general phrases may be restrained (Nicholas v. N. Y. C. & H. R. R. Co., 89 ld. 370).

Ye inquire then, what does the first condition mean 2 If the ordinary meaning be taken, if no words are supplied, it does not say or intend, that there shall be an oral or quasi judicial declaration of what is the judgment of the commissioners as to this pier needing repairs or that pier not needing them, for instance a resolution. If the commissioners proceeded to repair a pier, it would be competent to order the repairs, without explicitly declaring that the repairs were needed, although they might not be authorized to do it, if the fact were that repairs were not needed. And in this particular contract, the judgment of the commissioners was to be applied only to the perception of which of the piers, included in the terms of sale needed, or which did not need repairs. In the nature of "things, the judgment would consist in seeing in what state the various piers were, whether some were unfit for use without repair and some were fit, and thus being conscious of what the facts were, it would be the action of the mind of the individual commissioners which would precede any action of the board that might order the repairs, when the pier was not in a fit state.

Undoubtedly, if the conditions according to its proper meaning could be shown by evidence to have been fulfilled, the contract should be enforced. This was within the range and possibility of proof. The construction of the contract does not require that the proof should be direct. It may be circumstantial, including the force of legal presumptions.

These circumstances were in the case: The commissioners,-had knowledge of what should be the state of a pier. The law imposed certain duties in respect of that,. and when they sold the piers, they were presumed to know the particular condition of each. Furthermore, I take it, they were bound by their contract to look at the pier, observe its condition, make a judgment as it is called, in respect of it, and a contract to do that is implied. To this case, the decision in New England Iron Co. v. Gilbert Elevated R. R. Co. (91 N. Y. 153) is applicable, the facts here being much stronger for the implication. Now, if the defendant- had been allowed to prove that the pier was so dilapidated that the need of repairs was plainly apparent, there would have been sufficient to sustain a conclusion, if such were draw n, that as a matter of fact, the judgment of each commissioner was that this particular pier, was one that needed repairs.

Much that has been said is pertinent to the construction of what has been described as the second condition. By the first, a case might have been made out that the commissioners should make repairs. The second condition regulated their amount or kind. They were to be such as the commissioner should consider necessary to place the premises in suitable condition for service during the term of three years. The commissioners being bound to begin, the defendant was entitled to have such as the commissioners should think necessary. It was within the range of proof that certain repairs must in any event have been deemed necessary. There was a standard for that to a certain extent. It would be possible to show that up to a certain-point, it was impossible that any one having skill and knowledge, should consider that repairs were not necessary. I suppose that the commissioners could not maintain the position, that the “ consideration” referred to was such as a man might make in refraining to give his skill and attention to the matter, or by a perverted or unjust use of liisfaculties. In the present instance the commissioners not having proceeded to make any repairs, it would be impossible to show what kind of repairs they had in fact considered necessary. It was not necessary to show this. If the commissioners had begun to repair, as was their duty, the defendant would have had the advantage of such repair as the commissioners deemed necessary. An entire breach of the contract had deprived the defendants of this advantage. Although he would have to prove what kind of repairs he would have been entitled to, his right to do this is not destroyed by a supposition that the commissioners could have given no consideration to the matter. They were bound to give it, and indeed having ordered any repairs at all, would have been forced to give it. The contract is not susceptible of the construction that the commissioners might have, or would have had, the right to have not considered the matter at all.

Another clause, it was argued, prevented defendant’s recovery under his cou nter-claim. This was ‘ ‘ that no claim that the property is not in suitable condition at the commencement of the lease, will be allowed by the department.” The defendant did not make such a claim in this action. The terms of sale permitted the department to refrain from making repairs before the term began, and the-claim was that it was bound to make them as soon as practicable, after the term began. Proof of the condition of the pier at the beginning was relevant, as to what repairs, after the beginning would be considered necessary. Another remark as to this clause will be made in considering another clause, interposed against the defendant. It was that no claim will be received or considered by the department for loss of wharfage, or otherwise, consequent upon delay in doing the work of repairing.

Under the rule that has been already given, no words should be added to such provisions. And the words that no claim will be allowed or received or considered by the department will not extend to the making of the claim by action. The words “ any delay in doing the work of repairing,” will not comprehend the case of not doing the work at all.

. Sustaining the objection that the fact of the pier being dilapidated was irrelevant and immaterial, prevented the defendants proceeding to prove other facts, and other questions which are in the case, especially as to the measure of damages, could not be raised on the trial or on this appeal. The decision now is confined to whether the defendant could have an action under the agreement and whether the evidence rejected was relevant.

I am of opinion that the judgment should be reversed and a new trial ordered, with costs of the appeal to abide the event.

Freedman and O’Gorman, JJ., concurred.


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

text:
    JOSEPH MARTIN, et al., v. THE TRADESMEN’S INSURANCE CO.

      Conversion of policy of insurance on vessel.■—Contract—alteration of.— , Damages.

    M. & K., as partners, obtained from defendant a policy of insurance on a certain'vessel, which was made payable to the II. & H. Co., a mortgagee of said vessel, and delivered to said company, who, thereafter, and before the loss of said vessel, allowed an alteration to be made by defendant, the insurer, substituting for M. & K. one G-. as the person for whose account the insurance was made, and making the surplus after satisfying the claim of the mortgagee payable to one B.
    In an action brought after a total loss of the vessel, Held, a conversion of the paper with the words thereon constituting the contract, but not of the incorporeal and inchoate right of action; that plaintiffs were not bound to recover possession, or make use of the paper ; that though no proofs of loss, etc., had been filed, a recovery could be had, as the damages arise from the tort which prevented i>laintiff from suing on the policy.
    The complaint alleged a partnership interest in the vessel, and the proof showed that whatever interest defendants possessed, if any, was individual. Held, that upon this ground, the complaint was properly dismissed, there being no proof of the value of such partnership interest.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided December 17, 1883.
    Exceptions by plaintiff ordered to be heard in first instance at general term.
    The action was for damages for the conversion of & policy of insurance.
    The action was brought to recover damages alleged to have been sustained by the plaintiffs by reason of the wrongful and unlawful cancellation by the defendant of a policy of insurance issued by it upon the steamer Adelaide« The complaint alleges that the plaintiffs, as co-partners, held the legal title to the steamer, and were the equitable owners of two-thirds thereof ; that on May 22, 1880, the defendant issued a policy whereby it insured the plaintiffs against loss upon the steamer to the amount of $5,000, which sum, according to the terms of the policy, would in case of loss have been payable to the plaintiffs, subject to the amount due to the mortgagee of said steamer; that while said policy was in full force, and on June 18, 1880, the defendant wrongfully and unlawfully, and without the knowledge, consent, or approval of the plaintiffs, cancelled the said policy, as to plaintiff, and destroyed or converted the same, and thereby wrongfully deprived the plaintiffs of the benefit to which they were and would have become entitled upon the loss of said steamer which occurred June 19, 1880. Plaintiffs claimed damages to the amount of $5,000. The policy of insurance was originally made payable to the Harlan & Hollingsworth Co. to the extent of their mortgagee interest. The cancellation was the striking out of the names of Martin & Kaskell, the plaintiffs, and. substituting thát of one Garvey, as the person for whose account the insurance was made, and by making balance, over and above, the interest of the Harlan & Hollingsworth Co. payable to one Butler.
    The complaint was dismissed at the close of the case,, upon the ground that there was no proof that the plaintiffs sustained any damage by the alteration of the policy ; that if the alteration was made as alleged, it was immaterial.
    Further facts appear in the opinion.

      W. H. McDougall, for plaintiffs.
    —The policy was absolutely cancelled or destroyed by the defendant, and the act constituted a conversion of the policy for which' the defendant is liable in this action (Parsons Ins. 138; Forshaw v. Chabert, 6 Moore, 386; Campbell v. Christie, 2 Starkie, R. 57). After doing all that it could possibly do to destroy the plaintiff’s policy in a fraudulent manner, defendant cannot insist that the policy is still in force, and the plaintiffs should sue on it (Cheses v. Frost, 1 N. H.; Outhouse v. Outhouse, 13 Hun, 130; Murray v. Burling, 10 Johns. 172). The only question in the case was whether the plaintiffs had an insurable interest in the steamer at the time the policy was made or cancelled, and it should.have been submitted to the jury.
    The destruction or cancellation of the policy, if only partial, gave the plaintiffs a right of action for conversion or damages (Waterman Trespass, 12).
    The policy of insurance issued by the defendant and paid for by the plaintiffs, became the absolute property of the plaintiffs the moment it. was signed by the proper officers (Hallock v. Commercial Ins. Co., 2 Dutcher's Rep. N. J. 268; Marshall Ins. 210; Whitaker v. Farmers’ Union Ins. Co., 29 Barb. 312).
    ■ The policy of insurance was completely cancelled as to the plaintiffs (Masters x. Miller, 4 T. B. 32).
    The measure of clam ages in this case, was per se the amount insured, the plaintiffs having shown that they had an insurable interest (McLeod v. McGhie, 2 Scott’s New Rep. 604; Outhouse v. Outhouse, 13 Hun, 130; Thayer v. Manley, 73 N. Y. 305).

      James K. Hill, Wing & Shoudy, for defendant.
    -—The policy, according to the terms of the complaint, was made payable to the mortgagees to the extent of their interest, and it is not shown that the plaintiffs had any interest which would not be completely covered by the mortgage. If the defendant, as alleged, issued its policy upon the steamer in question, the plaintiffs’ remedy was clearly upon that policy, after complying with its terms and filing proofs of loss.-
    Plaintiffs had given three several bills of sale of the boat, vesting the title thereto absolutely in one J. Garvey. The attempt by the plaintiffs to vary these bills of sale by parol evidence was wholly unavailing. It did not tend to show legal title in plaintiffs, and without title they had no standing in court.
   By the Court.—Sedgwick, Ch. J.

—There was evidence of a conversion of the policy. The mortgagees of the vessel received the policy from the defendant at the time it was made and retained it down to the trial. In the meantime, the words of the policy had been changed so as to destroy the contract in favor of Martin & Kaskell. that apparently existed in the first place. The jury would have had a right to find, that this had been done by the defendant with the co-operation of the mortgagees. This was a conversion against Martin & Kaskell. The thing convert d. was the paper with the words thereon that- constituted the contract, and not the incorporeal and inchoate right, of action, which cannot be converted. It is true that if the plaintiffs were in possession of the paper, they could under proper circumstances have recovered upon the contract as it was before alteration. After the act of conversion, they were not bound to recover possession or make any use of the paper. They could leave the defendants to the consequences of their wrong.

It would be no objection to a recovery in this action, that as the plaintiffs had made no proof of loss, etc., and could not have recovered on the policy, therefore they were not damaged. The damages would 'flow from the fact that plaintiffs had been prevented from bringing an action upon the policy by the tort of the defendants.

For another reason, however, the plaintiffs had no interest in the policy that would sustain their recovering beyond a nominal sum.

At and before the policy was first issued, each of the plaintiffs had severally conveyed one half of the vessel, in separate bills of sale, to John Garvey. They were partners under the name of Martin & Kaskell, and the complaint alleges a copartnership interest as the foundation of the claim. As a copartnership they had no interest in the vessel beyond a right to use it in trade. The policy ran to Martin & Kaskell, the firm. It may be considered that under the agreement, intimated by the evidence, they were entitled to a bill of sale from Garvey of one third of the vessel each and that they severally had an insurable interest to such extent. This, however, does not alter the case in .as much as the policy did not insure such interests, but a partnership interest. As there was no proof of what was the value of the partnership interest, the direction of the judge, dismissing the complaint should not be disturbed.

Plaintiffs’ exceptions overruled and judgment on the direction below to be entered for defendant with costs.

Truax, J., concurred.


author: By the Court.—Freedman, J.

text:
    MATTHEW WHITE, Appellant, v. JAMES RINTOUL, Respondent.

      Statute of frauds.—Promise to pay debt of another.—Original undertaking.

    "Where one of two creditors of a certain firm holding the notes of said firm for its indebtness, at the request of the other creditor, and to enable the . latter to collect his claim, promises before the same are payable, to delay proceeding on said notes till a certain time after their maturity, in con- . sideration of which the other creditor agrees to pay said notes at the date | named, such agreement to pay said notes is an original undertaking and not within the statute of frauds, and is therefore enforceable, though notin writing.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided December 17, 1883.
    Appeal from judgment in favor of defendant entered upon the dismissal of plaintiff’s complaint at the trial.
    The facts appear in the opinion.
    Robertsons, Harmon & Cuppia, for appellant.
    —The test by which to determine whether any given promise such as this, comes within, or falls without the statute, is this: Was the leading object of tue promisor to subserve or promote some interest or purpose of his own, or was it Ms direct and leading object to become the surety or guarantor of another’s debt ? (Mallory v. Gillette, 21 N. Y. 412; Nelson v. Boynton, 3 Met. 396; Leonard v.Vredenberg, 8 John. 29; Walker v. Taylor, 6 Carr. & P. 752; Emerson v. Slater, 22 How. U. S. 28; 3 Parsons Contr. [5th Ed.] 24; Prime v. Koehler, 77 N. Y. 91).
    Not merely the leading object, but the only object of the defendant, was to subserve and promote an interest and purpose of his own, viz., to secure protection to his interests as a creditor of the primary debtors, looking to their property to collect his claim.

      Davenport & Leeds, for respondent.
    —The following cases sustain the judgment (Roe v. Barker, 82 N. Y. 431; Pfeifer v. Adler, 37 Id. 164; Duffy v. Wunsch, 42 Id. 243).
    A promise to forbear suit for a limited period, as in this case, implies existence of the right to sue the principal debtor at the expiration of the period, and accordingly the continuance of the original debt and suretyship in the promisor. Where the promise creates suretyship, it must be in writing (Brown v. Weber, 38 N. Y. 187).
    Forbearance to sue was never considered to belong to the class of considerations which were (but no longer are), supposed to take a case out of the statute (Smith v. Ives, 15 Wend. 182; Watson v. Randall, 20 Id. 201).
   By the Court.—Freedman, J.

—The complaint was dismissed exclusively upon the ground that plaintiff’s counsel, in opening the case to the jury, admitted that the promise of the defendant alleged in the complaint and constituting the foundation of the cause of action, was not in writing, the trial judge thereupon holding that it came within the provisions of the statute of frauds as being a promise to answer for the debt of another. This therefore, constitutes the only question to be reviewed. Upon the facts set forth in the complaint no question, as to the sufficiency of the consideration for the defendant’s promise is presented ; but the question is, whether, beside a good consideration, a writing was also necessary. The consideration and the writing are distinct and independent requisites to the validity of a promise within the statute, but really no question arises under the statute, until it is conceded or determined that there is a sufficient consideration. The sufficiency of the consideration is to be determined by the ordinary rules ; but the necessity of a writing by the motive or object of the promisor, that is, whether the leading object of the promisor in making the promise was to subserve, or promote some interest or purpose of his own, or whether it was his direct and leading object to become the surety or guarantor of the-debtor. For the purpose of determining the question involved, it must, be presumed that the plaintiff would, if he had been allowed, proven the allegations of his complaint, and hence they must be taken as true. The material facts may therefore be stated to be as follows:

That on or about August 16, 1880, the plaintiff held two promissory notes duly made by the firm of Wheatcrof t & Rintoul to his order, of which the first had about two weeks’, and the second about six or seven weeks’ to run yet; and that at the same time the defendant was also a creditor of said firm to a considerable sum; that at the request of defendant, and for the purpose of preventing an injury to defendant’s interests as such creditor, looking to the property of said Wheatcroft & Rintoul to collect his claim, plaintiff, on or about August 16, 1880, agreed with defendant, and promised him not to institute any legal proceedings for the collection of either of said notes before July, 1881 ; that in consideration of such agreement and promise on plaintiff’s part not to institute legal proceedings, and in order to secure protection to his said defendant’s interests as such creditor as aforesaid, defendant on or about said August 16, 1880, undertook and agreed with, and promised to plaintiff that he, defendant, would pay plaintiff the amount of said two notes before said July, 1881 ; that plaintiff kept and observed his said agreement and promise not to institute legal proceedings, and plaintiff did not before said July 1, 1881, nor before this action, institute any legal proceedings to collect either of said notes ; that defendant did not keep and has not kept his said promise and agreement to pay said notes; and that neither of said notes has been paid, etc.

From these facts, it appears that defendant’s promise was not made for the benefit of the firm, nor in aid of their original contract, but for defendant’s own benefit as a creditor ; that not merely the leading, but the sole object of the defendant in making the promise, was to' promote and subserve an interest and purpose of his own ; and that the consideration, viz : plain tiff’s forbearance, went directly to him, though the firm indirectly may also have had the benefit of it. The circumstances, therefore, bring the case-at'bar directly within the third class of cases enumerated, in Leonard v. Vredenburgh (8 Johns. 28), viz: where the promise to pay the debt of another arises out of some new and original consideration of benefit or harm running between the newly contracting parties ; also within the-class of cases conceded by Comstock, Ch. J., in Mallory v. Gillett (21 N. Y. 412), to form an exception to the rule that the promise to pay the antecedent debt of another must be in writing ; and finally within the rule as re-stated by the court of appeals in Prime v. Koehler (77 N. Y. 91). In all these cases the promise, though in form a promise to-pay the debt of another, was treated as original, and- not collateral,-and for that reason it was-held that the statute of frauds did not apply.

The cases cited by the respondent do not sustain the-judgment. In Roe v. Barker (82 N. Y. 431), there was no-absolute promise to pay. In Pfeiffer v. Adler (37 N. Y. 164), the consideration wholly failed. In Duffy v. Wunsch (42 N. Y. 243), the consideration did not enure to the promisor. Brown v. Weber (38 N. Y. 187), holds that where the promise' creates suretyship, it must be in writing. Smith v. Ives (15 Wend. 182), and Watson v. Randall (20 Wend. 201), are two out of many cases which simply hold that forbearance to sue as a consideration enuring to the-principal debtor alone, is not sufficient to take the case out of the statute.

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

Sedgwick, Ch. J., and O’Gorman, J., concurred.


author: By the Court.—O’Gorman, J.

text:
    ERASTUS B. SEARLES, Respondent, v. THE MANHATTAN ELEVATED R’y Co., Appellant.

      Negligence. — Cinders from engine on elevated railways.—Evidence.

    Plaintiff, while passing under the elevated railway of defendant, was injure® by a cinder, falling from an engine thereon, into his eye. The evidence showed that if the engine were in a perfect condition no fire could escape, also that cinders had frequently escaped before, falling into plaintiff’s eyes. No explanation of the occurrence was made by defendant,—Held,. that a verdict for plaintiff should be sustained.
    Evidence that since the occurrence, cinders had not fallen to so great an extent as before, was admitted as tending to show that some contrivance-could have been adopted to prevent the same from falling,—Held, not error.
    The court refused to allow defendant to ask its master mechanic in cross-examination, whether the devices used by it to prevent the escape of sparks, were not the best known,—Held, not error; that the question, as put, was not sufficiently specific, and the jury should have been informed as to what the devices actually were. _
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided December 17, 1883.
    Appeal by defendant from judgment in favor of plaintiff, on verdict of a jury, and from order denying motion for new trial.
    The complaint alleged that while the plaintiff, in the course of his employment, was driving a car of the Third Avenue Railroad Co., near Fourteenth street, in the city of New York, on the second of January, 1880, a hot cinder from a locomotive of the defendants, then passing overhead* by reason of the negligence of the defendants, fell upon and was driven into the plaintiff’s eye, inflicting serious injury, for which he claimed damages. There was evidence at the-trial, that cinders had frequently fallen from the locomotives of the said elevated railroad before this accident, more than once falling into the plaintiff’s eyes ; that cinders cannot escape from the locomotive during regular business, or unless the ashpan were full, or unless an accident happen by reason of the grate coming down and letting the ashes come down into the pan ; ■ that unless there is an accident, ■or something occurs to parts of the engine there is no place where fire can well escape ; and that assuming the engine to be in a perfect condition, there is no place from which fire can escape. No evidence to explain the cause of the falling of the cinders from their locomotive was offered on the part of the defendants. Plaintiff was allowed to testify that since the occurrence, by which he was injured sparks had not fallen from the engines of defendants to the same extent as formerly, the trial judge holding that while it was not conclusive on the question of defendant’s negligence, it might be some evidence to show that some contrivance could have been adopted at or before that time, which would have prevented the falling of cinders.
    A motion was made, by counsel for the defendants, for ■dismissal of the complaint on the grounds that plaintiff was guilty of contributory negligence, and that no negligence on the part of the defendant had been proved. The motion was denied and the jury, after charge by the trial judge, - rendered a verdict for the plaintiff of $600. Exceptions were taken by counsel for the defendants to various rulings of the learned trial judge as to admission and rejection of evidence, and to his charge to the jury; and a motion was made for a new trial on the judge’s minutes, on the ground that the verdict was against the weight of evidence, and contrary to the evidence. This motion was denied.

      Deyo, Duer & Bauerdorf, for appellant.
    —It was error to permit the plaintiff to testify that since the accident, cinders, etc., had not fallen so much as before that time (Dale v. Delaware, etc. Co., 73 N. Y. 468; Baird v. Daly, 68 ld. 547; Salters v. Delaware, etc. Co., 3 Hun, 339; Payne v. Troy, etc., Co., 9 Id. 526; Dougan v. Champlain, etc. Co. 56 N. Y. 1; Sewell v. Cohoes, 11 Hun, 626).

    It was error to exclude the question whether the devices to avoid throwing sparks, ashes or cinders which were in use upon the locomotives of the company at the time of the accident, were the best that were known (Steinweg v. Erie Co., 43 N. Y. 123).
    The court also erred in refusing to dismiss the complaint on the ground that the plaintiff was guilty of contributory negligence. His work took him every day where the danger was. He was aware of it to such an extent that he had used a shade to protect his eyes, and this device was adopted to his knowledge by other men similarly situated. It was net an irksome of' unreasonable thing for him to do, and had he done it, probably would not have been hurt. It was conceded by the court that the plaintiff would be blamable in this respect “if the escape of cinders and sparks were a necessary incident to a careful operation of the elevated road, and had to be guarded against.” It is respectfully submitted that this necessity clearly appears from the evidence, and commends itself to the experience of all, as inseparable from the operation of a railroad by the use of steam (Field v. N. Y. Cent. Co., 32 N. Y. 339, p. 350; McCaig v. Erie Co., 3 Hun, 599; Collins v. N. Y. Cent. Co., 5 ld. 503).

      Lewis J. Morrison, for respondent.
   By the Court.—O’Gorman, J.

—No error appears to have occurred in the trial of this action.

Construing the evidence in the light most favorable to the plaintiff, as the jury had a right to do, there was enough to sustain the infefence that the accident occurred without negligence of the plaintiff, and by reason of negligence on the part of the defendants, in allowing some part of the machinery of their locomotive to be defective, thereby causing the injury to the plaintiff, and in the absence of any contradiction or explanation on the subject, on the part of the defendant, there was enough to warrant a verdict in favor of the plaintiff.

The learned trial judge correctly stated to the jury, the principles of law by which they should be governed, and left fairly to them for their consideration the questions of fact.

The admission of evidence to the effect that cinders had been seen falling from defendant’s locomotives since the accident, but not so much lately, under the careful qualification of the trial judge, was not error (Dale v. Del. Lack. & W. R. R., 73 N. Y. 468). It was not followed up by any other testimony tending . to -give it weight and direction, and its effect, if any, must have been too slight to produce any influence on the jury.

The question put by defendant’s counsel to the master mechanic of the defendants on cross-examination: “In your opinion, were the devices used upon your locomotives ” (to avoid throwing sparks, ashes, or cinders from them), “ in January, 1880, the best that were known” % was rightly excluded, as then put. The question was not sufficiently specific, and the jury should have been informed as to what devices were actually used by the defendant on its locomotives at the time of. the accident, and thus enabled to judge for themselves as to the nature and efficacy of such devices, rather than depend on the general opinion of the witness.

‘ Indeed, immediately after the question was excluded, the counsel for the defendant did in the regular way and without objection, make inquiry of the witness as to the kind and nature of the devises in use by the defendant, and did elicit the opinion of the witness thereon, so that no detriment could have occurred to the defendant by such exclusion.

The judgment of the court below should be affirmed with costs.

Sedgwick, Ch, J., concurred.


author: Hamilton Cole, Referee. Per Curiam.

text:
    EDMUND T. H. GIBSON, et al., v. THE NATIONAL PARK BANK of N. Y.

      Attachment—service of—what reached by levy—successive levies.—Banking— rights of bank after service of attachment, to pay check theretofore certified.—Notice of bad faith.—Authority— right to delegate.

    Authority to do acts merely ministerial or mechanical may be delegated ; and, accordingly, the sheriff may delegate to an assistant the power to certify a copy of a warrant of attachment, and make a notice thereof, as required by the Code of Civil Procedure.
    The Code of Procedure, unlike the new Code, makes no provision for successive levies under an attachment ; but under either Code the only property reached is that on hand at the time of the levy, which is perfected by service of the warrant and notice.
    The certificate required in case there is property incapable of manual delivery, is. of the property on hand when the levy is made, and it is no part of the levy and does not extend the effect of the service of the warrant and notice.
    Where a bank certifies a check, and an attachment against the maker is 'thereafter served on the bank, its right to pay the check to any person subsequently presenting it depends on his being a bona fide holder for value (Bills v. National Park Bank, 89 N. T. 343, followed). Whether, in the absence of suspicious circumstances the bank is authorized to consider any one presenting the check a bona fide holder for value ; or, whether it must in such case interplead the holder thereof, with the attachment creditor, quaere.

    The facts in this case considered and held, sufficient to show notice to the bank of absence of bonafides, etc.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided December 17, 1883.
    Cross-appeals from judgment entered upon a report of a referee.
    The defendant appeals from the whole judgment. The plaintiffs appeal from that part of the judgment which denies them a portion of their claim.
    The facts sufficiently appear in the referee’s opinion as follows:
   Hamilton Cole, Referee.

—“This case was formerly tried under the name of Bills v. National Park Bank. The complaint was dismissed, and the judgment entered thereon, was affirmed by the general term of this court (47 Super. Ct. 302). The court of appeals reversed this judgment and ordered a new trial (89 N. Y. 343). An assignment was. made of the cause of action to the present plaintiff Gibson, and he has been substituted as a party herein.

“ The evidence in the case, as it now stands, does not-substantially differ from that given upon the former trial, and a full statement of the case is given in the opinion of the court of appeals.

“An objection, which lies at the foundation of the attachment proceedings is now first raised by the defendant. The copy of the warrant and notice which were served upon the bank in this case -were signed by the names of the sheriff, and his deputy, but their names were written by one Sweeney, a clerk employed in the sheriff’s office. The defendant now claims that no proper service of the attachment in this case was ever made upon the bank, and that the papers which were served were of no force and effect, because they were not signed by the sheriff personally.

“ It is settled that authority to do acts merely ministerial or mechanical may be delegated,, but not so where the act involves the exercise of judgment or discretion (Powell v. Tuttle, 3 N. Y. 396; People v. Davis, 15 Hun, 209).

“The president, or the governor of a state, cannot delegate authority to sign a law. This requires the exercise of judgment. The judge issuing the attachment in. this case could not delegate his power ; but the act of the .sheriff, in certifying a copy of the warrant and in making the notice-provided for by law, required the exercise of no judgment or discretion ; it was ministerial simply. It is true that a special statutory authority, under which a party may be deprived of title to his property, must be strictly followed;. but this does not mean that every step in the process, whether requiring the exercise of judgment or not, must be-personally performed by those who are named to carry out the purposes of the act, unless it is expressly so provided. The initial step here is the' warrant of attachment. The power to issue this cannot be delegated, but the power to certify a copy and make a notice, is within the general authority of the sheriff, is ministerial in its nature, and can as well be delegated as the power to serve them after they are made.

“ Coming now to the merits: if the present case is brought directly under the decision of our highest court, nothing remains for the referee, save to follow that decision. It is claimed by the defendant that this decision depends upon the fact found upon the former trial, that at the time the securities were deposited by Rodney, the bank had reason to believe and did believe that the same weré the property of the railroad company, and that such fact is not established by the evidence in this case. The plaintiffs insist that such fact is established, and, if not, that its existence is not essential to a recovery herein. It does not appear in the opinion of the court of appeals that the existence of such knowledge on the part of the bank is essential to the plaintiffs’ recovery, and yet the existence of such fact is prominently put forward in the discussion of the case and decidedly colors the opinion.

“It is said in Duncan v. Berlin (60 N. Y. 151), 1 Where a balance due a depositor in a bauk is levied on by virtue of an attachment against the depositor, the bank is not authorized to deduct an outstanding check given by the depositor to a third person, which had not, prior to the levy of the attachment, been presented and accepted.’ In the case at bar the check had been presented .and accepted prior.to the levy of the attachment. The court of appeals say that the issuance of this certified check did not pay the debt to the railroad company ; that, it was a negotiable security issued to the railroad company and payable to any bona fide holder who should present the same, yet that the debt evidenced by it wás liable to be attached, so long as the negotiable security was in the hands of the attachment debtor, by serving the attachment upon the maker of the security, but that such attachment might be defeated by a subsequent transfer, of the security to a bona fide taker for value, who is in a position to enforce it against‘the maker. Now it would seem from these principles, that where a bank had certified a check and an attachment against the maker of the.check had been served upon the bank, that the right of the bank to pay the check to any person subsequently presenting the same would depend upon that person being a bona fide holder for value. The court do not consider the question as to whether, in the absence of any suspicious circumstances, the bank is authorized to consider any one presenting such a check a bona fide holder for value. That question did not arise in this case. If the ordinary rule be applied in favor of the bank as to the rights of holders of negotiable paper, that ‘ they are to be determined by the simple test of honesty and good faith, and not by a speculative issue as to their diligenceor negligence,’ then the practical result would be that the bank could not be lield in this case in the absence of such suspicious circumstances as should put it on its guard, and a disregard of which would justify the imputation of bad faith on its part.

But it may be that the bank is in this position. It does not claim the fund deposited. It is indebted to the depositor to a certain amount for which it has certified a check. It is bound to pay this amount to the bona fide holder of the check. Before the check is presented for payment an attachment against the- depositor is served upon the bank. This .attachment reaches the debt due by the bank to the •depositor, but the attachment is defeated if the check either before or after the service of the attachment has reached the hands of a bona fide holder for value. The check is presented for payment. The bank has notice that two persons claim the amount deposited—the attachment creditor and the holder of the check. The right of the latter to be paid depends upon his being a bona fide holder for value, and it may be that in all such cases the bank must inter-plead the two claimants, or else pay the check at the risk of being compelled to again pay the attaching creditor, if it be found that the person receiving payment was not in fact a bona fide holder for value of the check.

“ Now what were the circumstances surrounding this transaction within the knowledge of the bank. Rodney was known to the officers of the bank as the assistant treasurer of the railroad company, and all previous transactions on his part with the bank had been on behalf of the railroad company. The check of $6,600 had been drawn by Rodney as assistant treasurer, to the order of himself as assistant treasurer, had been presented, by him to the bank for certification, had been certified, and by Rodney taken away from the bank April 27, 1875. The bank knew that the railroad company were anticipating an attachment. ' As early as November, 1874, a suit had been brought by one of the attorneys of the plaintiffs in this action and an attachment had been levied upon the: railroad company’s deposits in the defendant’s possession. Therefore the president of the railroad company made an arrangement with the bank that it would allow the railroad company to overdraw its account in the early part of each month when its coupons fell due, and this arrangement had been carried on for several months. It had been acted upon in the early party of April, 1875. On April 27, 1875, there was a deposit to the credit of the railroad company of $6,485.33. A check is certified drawn as before stated for $6,600. On April 30 the attachment in this case is served upon the bank. On the next day, as it now appears, Rodney comes to the bank, is informed of the attachment served the day before, and then presents the certified deck of April 27, together with some other securities belonging to the railroad company, opens an account in his own name and proceeds to draw checks upon the same for and on behalf of the railroad company, which are paid by the bank. Under such circumstances I cannot doubt but that the bank had reasonable cause to believe, and did believe, that the funds deposited were the property of the railroad company, and that the transaction took the shape it did to avoid expected attachments. The bank knew the facts. It was mistaken in supposing that an attachment against the railroad company could be' avoided by the method adopted.

“On May 1, 1875, Eodney deposited, together with this certified check of $6,600," other securities to a large amount belonging to the railroad company, and the question is now raised whether these additional amounts are reached by this attachment. In other words, does the attachment reach property belonging to the railroad company and acquired by the bank subsequently to the serving of the attachment upon it % There is a dearth of authority upon this point. In Patterson v. Perry, 10 Abb. Pr. 82, it is stated that only property on hand at the time of the service of the notice is affected, and "this, I think is clearly so from the provisions of the Code itself. The provisions of the old Code govern this case. Section 235 provides for the execucution of the warrant where the property levied on is incapable of manual delivery : “ The execution of the attachment upon such property shall be made by leaving a certified copy of the warrant of attachment. . . . with a ■notice showing the property levied on.” What kind of notice is required has been the subject of much discussion ; but, whatever notice is necessary, it can only speak at the timé of its service. The Code assumes the immediate' taking into possession by the sheriff of certain kinds of property, and the immediate obtaining of a certificate in cenain other cases. In néither case could this be done except as to property then in possession. The attachment clearly, I think, speaks from the time of its service, and has no effect as to property absolutely acquired. The old Code provides that the warrant shall require the sheriff “ to attach and safely keep all the property of such defendant within his county.” The new Code adds, “or which he may have at any time before final judgment.”.

“The old Code made no provision for successive levies. The new Code provides that the sheriff “may levy from time to time, and as often as is necessary, &c.”

Holmes & Adams, for plaintiffs.

—I. The additional securities deposited with the certified check of $6,600 on May 1,1875, were subject to the attachment, being the property of the railway company. Attachments all have their origin in the custom of London (Drake Attachments, § 1). Our statutes attempting to make no definition of the words, “ the sheriff shall attach,” “property shall be liable to be attached in actions at law,” we must look for the meaning in the law from which the proceeding was derived, and which the legislature had in view when it used the words.

“If the property of defendant below be found to have come into the hands of the garnishee before plea pleaded (i. e., pleaded by garnishee), it is liable to be attached by the custom.” This means, from the context and from the facts of that case, if goods come to garnishee after attachment served, and before garnishee has pleaded to the warrant, the attachment so served shall bind them (1 Com. Dig. Attachment, C. P. 541; Privilegia Londini [Bohun], to be found in appendix to Sargeant Attachment, 203; McDaniel v. Hughes, 3 East, 874; McGrath v. Hardy, 4 Bing N. C. 785. Our practice requires the garnishee to give the sheriff a certificate stating the property, etc. This is nothing but the old garnishee’s plea in another form ; it was clearly intended to take its place, and to be effectual for some purpose. It gives the garnishee opportunity to look about him and determine'as to the rights of parties, and purports, in its terms, to state the facts, not of the time the attachment was served, but of the time since then, and up to the time when the certificate is made and delivered.

“Under either Code that property only is reached by the attachment which is on hand at the time of the levy. The levy is perfected by the service of the warrant and notice. Thé certificate required in case of property incapable of manual delivery, is a certificate of the property on hand when the levy is made. It forms no part of the levy itself, and in no way operates to extend the effect of the service of the warrant and notice.

“ The plaintiffs are entitled to judgment against the Park Bank for the amount due by it to the railroad company on April SO, 1875, when the attachment "in this case was served.”

A consideration of the various attachment laws of this state, from act of 1801, March 21, including the Revised Statutes and the Code of Procedure, sustain this contention.

The language of the Code and Revised Statutes seems to imply that the certificate should speak of the time of its presentation to the sheriff (Code, 236; Laws 1842, ch. 197, § 3; Laws 1848, ch. 53 [3 Edm. R. S. 681], amending ch. 197 of Laws 1842, and prescribes [§ 2] that provisions of R. S. apply, viz., §§ 12-16, art. 8, tit. I., ch. V., Part II. of R. S.).

The notice and the attachment must then be available against property held by bank at time of attachment served, or at any time after up to the making of the.certificate, i. e., “ to plea pleaded.”

In view of the R. S., the law has never regarded this as a hardship, because publication under the Revised Statutes produced the same effect as is now claimed for notice and certificate ; and the custom upon which all attachment laws are founded had the same effect. In other States the question has been passed upon Glen v. Besler, &c. Co. (7 Md. 287, 296). “It has been the general practice under an attachment system under the authority of the 5th and 6th sections of the Act of 1795, chapter 56, (Maryland Statutes), to condemn all credits or property in the hands of the garnishee for the debtor at the time of the trial.” Between the levy and trial in this case the garnishee had come into possession of property of attachment defendant (291 and 296). Act of Md. 1795, ch. 56, § 6, provides for capias ad res against garnishee if he threatens to abscond. Section 5- provides simply that in all cases of attachment plaintiff may interrogate garnishee, “ Who shall by rule of court answer each and every of the interrogations aforesaid, touching or concerning the property of the defendant in his possession or charge, or by him due or owing at the time of serving such writ of attachment, or at any other time, and if such garnishee shall neglect,” &c. Dunegan v. Byers (17 Ark. 492-496), was under statute similar to Maryland providing for interrogatories and answers by garnishee as to indebtedness, &c. ‘1 At the time of service of a writ or any time thereafterheld to reach after acquired property. The trustee can be charged for property coming to his hands prior to “ disclosure,” i. <?., to answer made (Gretchel v. Chase, 17 N. H. 106-109). Slints v. Hobensack, 20 Pa. St. 412), expressly holds that property coming to hands of garnishee after attachment and before answer, is bound, citing custom of London; Sargeant on Attachment, and cases in the reports of Pennsylvania.

The certificate was not given by the bank to the sheriff at the time of the service of the Warrant, but on May 8, 1875. .

II. The point that as the statute requires the sheriff to certify the copy warrant, the signature of the sheriff to such certificate signed by his deputy, or the clerk of the deputy, by the latter’s direction, is not in compliance with the statute, cannot be maintained (Lynch v. Livingston, 6 N. Y. 422, 431, and cases there cited).

' See as an illustration also Code of Procedure, § 128 : “The summons shall be subscribed by the plaintiff or his attorney,” &c. Code of Civ. Proc. § 417 : “It (the summons) must be subscribed by the plaintiff’s attorney, who must add to his signature,” &c. It has always been held that the signature need not be the real signature of the attor-. ney ; it may be printed (1 Bliss Code, notes to said section).

Barlow & Olney, for defendant.

—I. There was no legal attachment. The copy of the warrant must be.certified, and the “notice” signed by the sheriff (Code Proc. § 235). Even if “ deputy sheriffs” are legally qualified officers, here, the copy of the warrant was not “certified” by a deputy sheriff, nor was the “ notice'” signed by a deputy. Both were in the handwriting of a clerk in the employ of the deputy. The question is, whether a public officer can delegate the power of making official signatures. There is no difference between the signature of the president or the governor to a law or to death-warrant, and the signature of a sheriff or his deputy to a “ notice” (See Blackwell Tax Titles [4th ed.] 380).

In a case where the property of a citizen is. taken from him by process in invitum, the statute must be pursued with the utmost strictness (See Blackwell Tax Titles [4th ed.] 37, 38, 51, 52, 63, 64; Cruger v. Dougherty, 43 N. Y. 107; Curtiss v. Leavitt, 15 Id. 250; Sharp v. Spier, 4 Hill, 76; Spear v. Ditty, 9 Verm. 283). Where the signature of a public officer is required, he must make it himself (Chapman v. Inhabitants, 56 Maine, 390; Blackwell Tax Titles [4th Ed.] 379; Hannel v. Smith, 15 Ohio, 134).

II.. The court of appeals in the former decision herein (89 N. Y. 343) went wholly upon the findings of the referee, that the bank “had good reason to believe and did believe, that the securities deposited by Rodney were the property of the railroad company.” If the bank actually knew or believed, that this was a mere cover and device, and that Rodney had no interest in the paper, it is undeniable that it would not be protected. But the finding of the referee that the defendant, at the time when Rodney deposited the certified check of $6,600 to his own credit, “ did believe” that it was the property of the railroad company (as distinguished from the finding that the defendant '•'•had reason” so to believe), is not warranted by the evidence.

The authorities hold that “having reason to believe ”—■ that is, the existence of suspicious circumstances, or even “ gross negligence,” is not enough to affect the bona fldes of the holder of paper, and this, however the question arises. If the bank.had discounted the paper for Rodney, the rule would apply. So when Rodney deposited it, the bank became the owner, and be became a mere creditor. The following cases hold that suspicions, or even gross negligence, do not affect the title of the holder of paper (Magee v. Badger, 34 N. Y. 249). “ The rights of the holder are to be determined by the simple test of honesty and good faith, and not by a speculative issue as to his diligence or negligence.” And “he is not bound to be on the alert for circumstances which might possible excite the suspicions of wary vigilance” (Lord v. Wilkinson, 56 Barb. 593; where the party had once actually known the fact but had forgotten it; Insurance Co. v. Hachfield, 73 N. Y. 228; Bank v. Noxon, 45 Id. 762-765; Welch v. Sage, 47 Id. 143, and at 147, where it is said that it is the duty of the court to direct a verdict unless the jury can find “fraud or bad faith ;” Farrell v. Lovett, 68 Maine, 326, where all the authorities are considered; Hotchkiss v. National Bank, 21 Wall, 354; Murray v. Lardner, 2 Wall. 110-121; 2 Parsons Notes and Bills [2d Ed.] pp. 269 and 279).

III. The legal title to the paper deposited by Rodney, and to its proceeds, was in him individually, and even if the equitable title, the real ownership, were in the railroad company, yet, attachments hold only legal titles, and the Park Bank had no right to hold equitable interests or titles under this process (Thurber v. Blanck, 50 N. Y. 80; Greenleaf v. Mumford, 35 How. 148). That a bank cannot inquire into, or dispute the title of a depositor, has been long settled (Sims v. Bond, 5 Barn. & Adol. 389; Tassell v. Cooper, 5 C. B. 525).

IV. An attachment only binds money or property in the hands of a third person (here the bank) at the time of its levy. Whatever the rule may be in what is known as “garnishment,” or “trustee process,” it is obvious that there is no analogy between the plea or answer in such proceedings, and the certificate provided for by § 236 of the old Code. The certificate is merely the giving of information as to the property held, and in contemplation of law it precedes the attachment, and is asked for in order to enable the property in the hands of the garnishee to be properly described (Code of Pro. § 236; O’Brien v. Ins. Co., 56 N. Y. 60). In short, the certificate has no part in the levy, but the attachment is effective, although no certificate is given or asked for.

Per Curiam.

—Upon a careful consideration of the whole case it appears that all the facts found are fully warranted by the evidence, and that, upon those facts, the referee, under the decision of the court of appeals in 89 N. Y. 343, was bound to render a judgment for the plaintiffs in the amount he did. The additional questions raised by the defendant for the first time since the decision of the court of appeals referred to, were properly disposed of by the referee.

As to the disallowance of that part of plaintiff’s claim which the referee rejected, the reasons assigned by him for the ruling made, seem to be well founded.

The judgment should be affirmed upon the opinion of the learned referee, without costs to either party upon this appeal. °

       The certificate in this case was not served until May 8,1875.—Reporters.