author: By the Court.—Monell, J.

text:
    CHARLES H. SWORDS and WILLIAM BETTY, Plaintiffs and Appellants, v. ADONIRAM J. OWEN, Defendant and Respondent.
    Under the act of 1833, prohibiting persons from transacting business under fictitious names, and making the violation thereof an offense punishable by fine, contracts made by persons doing business under a firm name, in which the designation “ and Company ” or “&Co.” represents no actual partner or partners, are void.
    Before Monell, Freedman and Curtis, JJ.

      Decided March 30, 1872.
    Appeal from an order overruling a demurrer to one of the defenses.
    The complaint aHeged that “ the plaintiffs were co-partners, doing business in the city of New York, under the firm, name and style of Swords, Betty & Co.” It then alleged, as a cause of action, the employment of the plaintiffs by the defandant, as his brokers, to purchase certain shares of stock; the purchase of such stock; the neglect and refusal of the defendant to take the same, and a loss thereupon to the plaintiffs of three thousand dollars.
    The defendant, for a third defense, averred, upon information and belief, that all the alleged transactions were wrongfully, unlawfully and wickedly made by the plaintiffs in carrying on and transacting business, including that set forth in their complaint, under the firm-name and designation of Swords, .Betty & Co., and that the designation “& Co.” did not then and there represent an actual partner nor partners, and that said firm were carrying on business in the city of New York, and said copartnership was not a commercial copartnership, located and transacting business in foreign countries ; neither had such copartnership used such name of Swords, Betty & Co., and the business conducted by it at any time thereafter continued by some one, nor by any of the copartners, nor by their assigns or appointees; neither was any certificate signed and acknowledged before any officer of law, authorized to take acknowledgments of deeds, declaring the persons dealing under said name of Swords, Betty & Co., with their places of abode, nor was such certificate filed with the clerk of the city and county of New York, in which their principal place of business then and there was; neither was the same published in any newspaper in this State; neither had said copartnership business relations with foreign countries.
    To this defense the plaintiffs demurred for insufficiency.
    The court at special term overruled the demurrer, and the plaintiffs appealed.

      Mr. R. M. Huntley, for appellant.

      Mr. D. M. Porter, for respondent.
   By the Court.—Monell, J.

In 1833 the legislature enacted a statute embracing the following two sections (Laws of 1833, chap. 281):

“§1. Wo person shall hereafter transact business in the name of a partner not interested in his firm; and where the designation ‘and Company’ or ‘ & Co.’ is used, it shall represent an -actual partner or partners.
“ § 2. Any person offending against the provisions of this act, shall, upon conviction thereof, be deemed guilty of a misdemeanor, and be punished by a fine not exceeding one thousand dollars.”

The act is entitled, “Ara act to prevent persons from transacting business under fictitious names” Literally, the statute prohibits the transaction of business in the name of a partner not interested in the firm, and requires that the designation “and Company ” or “ & Co.” shall represent an actual partner. A violation of the statute is deemed, upon conviction, a misdemeanor, punishable by fine. The prohibition does not, nor does the penalty, in terms, apply to contracts made by such firms, and does not, therefore, in terms, declare such contracts void; but the act makes it unlawful for any person or persons to transact business by or in the name of a fictitious firm.

The answer alleges that the contract upon which the cause of action arose was made by the plaintiff in carrying on and transacting business under the firm-name of “Swords, Betty & Co.and that the addition of “ & Co.” did not then represent an actual partner; and the allegation is admitted by the demurrer to be true.

The contract, then, was made by a person while unlawfully using a prohibited style, the using of which was a criminal offense, punishable by fine.

It is not necessary that a penal statute should contain prohibitory words. A penalty implies a prohibition, and every act done against it is not only illegal, but absolutely void (Hallett v. Novion, 14 J. R. 290).

The prohibition is against transacting business; and it renders it unlawful for a person to conduct Ms business under the designation of “and Company” or “ & Co.” unless such addition represents an actual partner; and such person cannot make any executory contract, whatever, which can be enforced by Mm, while using such prohibited title.

It would be impossible to give significance and effect to the statute, unless it was adjudged to apply to all business transacted under the unauthorized name ; and, therefore, to all contracts made in the name or when using the prohibited style, rendering all such business transactions and contracts absolutely void.

The decisions in our State courts strongly support the views I have expressed, and quite uniformly hold that all transactions prohibited by statute are void.

In Hallett v. Novion (supra), an act of Congress had made it a misdemeanor, punishable by fine and imprisonment, for a person to fit out and arm any ship or vessel with intent to employ her in the service of any foreign power, &c. The act contained no words of prohibition, but the court held, as before quoted, that a penalty implied a prohibition, and every act done against it, void.

In Pennington v. Townsend (7 Wend. 276), an act of the legislature made it unlawful for any person or association to keep an office for transacting banking business, $c., unless expressly authorized by law, giving a penalty. In the act there was no clause declaring void the securities taken. The action was upon , a check which had been discounted by an unauthorized banking association ; and the court held the transaction void under the statute. Judge Nelson, in referring to the proposition that the penalty was the only consequence of a violation of tiie act, says, “ there is no distinction between an act malum prohibitum and malum in se. Both are equally forbidden and unlawful ; and I will add, both are immoral, and cannot be the foundation of a civil right, that will be enforced in a court of justice.”

In Griffith v. Wells (3 Den. 226), the action was to recover for liquor sold to a person not having a license. The act of the legislature did not, in terms, prohibit the sale of liquors without a license, nor declare the act illegal. It only inflicted a penalty upon the offender. But the court held the contract to be illegal, and no action would lie to enforce it.

An analogous case was decided in the New York common pleas (Ferdon v. Cunningham, 20 How. Pr. 154), where a contract for service by a public cartman was held to be void, the cartman not having a license, as required by a city ordnance, which merely affixed a penalty for keeping or using a public cart, without first obtaining a license therefor.

Best v. Bander (29 How. Pr. 489), although only a special term decision, is strongly in point.

The action was for goods sold. The defense was, that the sellér was engaged in the business of peddling, without a license, in violation of the revenue laws of the United States. The court overruled a demurrer to the defense, holding that the penalty in the act implied a prohibition, rendering the contract of sale void. In that case the distinction which is suggested in some of the cases (Griffith v. Wells, supra, and Bell v. Quin, 2 Sandf. 150), between a license for revenue only and such as have in view the protection of health or morals, or the prevention of fraud, is repudiated.

In Hoyt v. Allen (2 Hill, 322), although the decision was as to the sufficiency of the pleading, there is an intimation, which, taken in connection with the reporter’s note, sustains the principle of all the foregoing cases. And the principle is further supported by the case of the U. S. Bank v. Owens (2 Peters, 627), where a contract was held void as being in violation of the charter of the bank forbidding the taking of more than six per cent, interest.

Under authority of the cases cited, we must hold the transaction set forth in the complaint to be illegal and void, and not enforceable in a court of justice; and, therefore, that the matter set up in the answer constitutes a defense to the action.

It is impossible, I think, to apply the distinction in this case claimed by the respondent’s counsel, that this is a mere collateral transaction, not connected with, but remote from the prohibited act. Such distinction is clearly defined in the cases he has referred to, where it is held, that if the illegality does not form any portion of the contract, but is merely collateral, and capable of complete separation from it, the contract is binding.

The distinction, however, cannot be made available in this case.' The illegal act is the transacting of business. Business cannot be transacted except by and under contracts, express or implied, executory or completed. Every executory contract made in transacting business, must necessarily, therefore, be void under the prohibition against transacting business under a fictitious firm name. Any other application of the statute would render it wholly ineffectual, as the design of the legislature, as expressed in the title of the act, was to prevent persons from transacting business under fictitious names.

In their complaint the plaintiffs aver,- that at the time they made the contract with the defendant, they were doing business under the firm name of “ Swords, Betty & Co.,” and the answer alleges that the transaction was made with the plaintiffs while unlawfully transacting business under such fictitious firm name.

These several allegations are, in my opinion, sufficient to bring the case within the provisions of the statute prohibiting the transaction of business in the name of a partner not interested in the firm.

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


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    JEREMIAH M. PELTON, Plaintiff and Respondent, v. HENRY W. BULKLEY, Defendant and Appellant.
    The assignment and transfer of an invention and patent to a corporation, and receiving in payment therefor the entire capital stock of said corporation, coupled with an agreement between the parties to the effect that after the reception of said stock, the assignor should transfer to said corporation one thousand shares, and should sell and transfer two thousand five hundred shares to other members of the corporation for five thousand dollars, and should retain for himself the remaining two thousand five hundred shares, is a sale or disposition, within the meaning of either of those words, of the said invention and patent, as also of one-half of the same.
    Before Monell, Freedman and Curtis, JJ.

      Decided March 30, 1872.
    ■ Appeal from order at special term sustaining plaintiff’s demurrer to the answer.
    The complaint alleges that on February 6, 1867, one Carvalho was indebted to the plaintiff in the sum of one thousand two hundred dollars, for money loaned; that Carvalho, on said day, was the owner of an invention and patent for super-heating steam, which he on the same day sold to the defendant; that the defendant, as a part of the consideration for the sale, agreed with Carvalho, and with the plaintiff, and in consideration of the plaintiff’s releasing Carvalho from his said indebtedness, that if he, the said defendant, should at any time sell or dispose of one-half interest in said invention, he would forthwith pay the plaintiff the whole of whatever the balance of the said sum of one thousand two hundred dollars remained unpaid ; that the defendant, on March 6, 1867, sold and disposed of said invention, and all the interest he had in it, to the Carvalho Steam Super-Heating Manufacturing Company; that no part of said sum of one thousand two hundred dollars has been paid, and that defendant refuses to pay.
    The answer admits Carvalho’s indebtedness and, ownership, the sale by Carvalho to defendant, the existence of an agreement to pay the plaintiff, the non-payment, and defendant’s refusal. It then alleges that the agreement with the plaintiff was made in writing, as follows:
    “How this agreement witnesseth that the said Henry W. Bulkley, for and in consideration of the herein-before recited premises, doth hereby for himself, his heirs, executors and administrators; covenant, promise, and agree to and with the said Jeremiah M. Pelton, his executors, administrators, or assigns, that he, said Henry W. Bulkley, will pay to him, the said Jeremiah M. Pelton, his personal representatives or assigns, in quarterly installments, commencing from the first day of February, 1867, the one-tenth part of any and all income, profits, or receipts, including any salary to be derived from any company or copartnership which he, the said Bulkley, may at any time hereinafter obtain, or receive, or be entitled to in any manner whatsoever, for or on account of or arising out of the one-half interest which the said Bulkley retains for himself in the said letters patent or invention for super-heating-steam, sold to him by the said Carvalho as aforesaid, whether the said income, profits, or salary be derived or received from or under a joint stock company, co-partnership, or in any other manner whatsoever. And the said Henry W. Bulkley, for himself, his heirs, executors, and administrators, hereby further covenants and agrees that if he shall at any time sell or dispose of any portion of said one-half interest in said invention retained by himself as aforesaid, he will pay to the said Jeremiah M. Pelton, his personal representatives or assigns, the one-tenth part of the purchase money which may be received therefor; and if he, the said Henry W. Bulkley, should at any time sell or dispose of the whole of his said one-half interest in said invention reserved as aforesaid, he will pay forthwith the whole of whatever balance may then remain unpaid of the said sum of twelve hundred dollars, to the said Jeremiah M. Pelton, his personal representatives or assigns; provided that, and it is the meaning of this agreement that the said Jeremiah M. Pelton shall not be entitled to receive, and the said Henry W. Bulkley shall not be obliged to pay to him, more than the aforesaid sum of twelve hundred dollars. And the said Henry W. Bulkley further covenants and agrees to render to the said Jeremiah M. Pelton, quarterly accounts of any and all income, profits, and salary which may be received by him as aforesaid, and to give or procure for the said Jeremiah M. Pelton, all reasonable and proper access to books and vouchers necessary to verify such quarterly accounts. And the said Bulkley also agrees to give good and sufficient security for the faithful performance by him of the foregoing agreement and covenants.
    The answer further alleges:
    “This defendant further answering says, that at the time of his purchase of the said invention and patent of the said Carvalho, and at the time of the making of the agreement in writing between the plaintiff and this defendant as aforesaid, there was conversation between the parties to said purchase and agreement to the effect, and it was well understood between them, that this defendant expected to retain for himself only one-half of the interest in said inven don and patent, and to dispose of the residue to a company to be formed for the purpose of doing business under said patent in the manufacture and sale of steam superheaters and relating thereto ; and that the balance of the said indebtedness of the said Carvalho to the plaintiff, beyond the one-tenth of income, profits or receipts in respect to the one-half interest in said invention and patent retained by this defendant, and one-tenth of the purchase money which he might receive in case of a sale by him of a portion of the one-half Interest retained by him, was not to be payable until he had sold or disposed of the whole of the said one-half interest reserved by him, whereby ‘he might have the means and be able, without embarrassment, to pay the balance of said indebtedness.
    The answer then denies a sale or disposition by defendant of said ■ invention to the company named, except in the following manner :
    “ That in forming said company it was provided that its capital should be sixty thousand dollars, divided into six thousand shares of ten dollars each ; that on the organization of the company this defendant assigned the said patent to said company, and in payment therefor the said company issued to this defendant the entire six thousand shares of the capital stock of said company; that this defendant, by agreement with said company, then sold to persons who, with this defendant, became and were members of said company, three thousand of said shares, and received therefor five thousand dollars, which, by agreement with the company, he was- to have and retain for one-half interest in said patent; and by agreement with said company, the other one-half interest in said patent, and the stock representing the same, was to and did belong to this defendant; that by further agreement with said company, one thousand of the six thousand shares of said stock was to be and was contributed to the said company by the stockholders; and thereupon certificates for five thousand of said six thousand shares were issued, as follows: to this defendant, twenty-five hundred shares, and to the other members of said company twenty-five hundred shares, thus leaving one thousand shares with the company undistributed. That by the agreement between this defendant and said company, under which this defendant assigned to said company the said patent, this defendant was to transfer to said company one-half interest therein only; and the said assignment was made to embrace the whole interest in form by advice of the counsel of the company, that it would be the best mode of carrying out the agreement to have the assignment include the whole interest, and the company issue to this defendant of its stock an amount equivalent to the one-half interest in said patent, which was to be retained by this defendant, to represent that one-half interest; and therefore the business was done in that mode. That this defendant still retains the stock assigned to him as aforesaid; and the one thousand shares left with the company as aforesaid are still held by it undistributed.”
    The answer concludes with a formal denial of each and every allegation of the complaint not expressly admitted, denied or controverted.
    The plaintiff demurred to.the answer for insufficiency in not stating facts sufficient to constitute a defence.
    The court sustained the demurrer and granted an order for judgment thereon, with leave, however, to the defendant to serve an amended, or further, answer on payment of costs of the demurrer.
    The defendant appealed from such order.

      T. R. Strong, counsel for appellant.

      T. D. Pelton, counsel for respondent.
   By the Court.—Freedman, J.

The question presented by the demurrer is whether the assignment and transfer of the invention and patent by the defendant to the Carvalho Steam Superheating Company, and the issue to him by said company of its stock, as set forth in the answer, amounts to a sale or disposition, within the meaning of either of said terms as used in the agreement existing between the parties, of the whole of defendant’s one-half interest, which he had reserved to himself. If it dues, the answer admits all that it would be necessary for the plaintiff to prove upon the trial. In such case the event has occurred upon the occurrence of which the defendant undertook to pay the twelve hundred dollars, or any balance thereof remaining unpaid. After a critical examination of the law and the facts, as admitted by the answer, I entertain no doubt that the answer, as a pleading, contains a sufficient admission of a disposition by defendant of his reserved one-half interest, within the meaning of that word, as understood by the parties at the time of the execution of the contract between them. By his own showing, the defendant has parted voluntarily and for a valuable consideration with the whole of his interest, and in a manner by which he became divested of the title and lost the power of disposition over it. He has disposed of it so effectually that, in law, he can never sell or dispose of it again, and as he has no equities against the plaintiff, except such as he stipulated for, the plaintiff is not to be affected by the manner of such disposition, nor by the kind of consideration received by the defendant therefor. Consequently the claim, so ingeniously advanced and urgently pressed, that the defendant, by the acceptance of stock, retained an interest, and for that reason did not part with his entire interest in the invention and patent, cannot be upheld. Although the character of the company does not distinctly appear by the pleadings, yet it sufficiently appears that the company was organized upon a stock plan, that it was to consist of stockholders, and that its capital should consist of a certain number of shares. The certificates of stock accepted by the defendant represent, therefore, only an interest pro tanto in the capital of the company, no matter how invested, and are evidences, in addition thereto, of a right to dividends and to a pro rata distribution of the proceeds of the whole property of the company upon its dissolution; but they cannot, in the absence of other and further averments than are contained in the answer, be deemed to represent, as against plaintiff’s claim, a disposable interest in the invention or patent conveyed, or in one-half of it.

The order appealed from should be affirmed, wiih costs.


author: By the Court. — Monell, J.

text:
    AUGUST C. RITTER, Plaintiff and Appellant, v. SAMUEL PHILLIPS and Others, Defendants and Respondents.
    In an action to foreclose a mortgage, the defendants, who were the grantees of the defendant, the mortgagor, pleaded a tender of the money due on the mortgage, and proved a sufficient sum tendered unless twenty dollars of the payments made were applied on account of interest, at seven per cent., while the mortgage on its face only called for six per cent., although plaintiff claimed seven per cent, under the following facts.
    When the mortgage became due, it was owned by one Weiner, the assignee of the original mortgagor. Phillips, the mortgagee, agreed with Weiner (verbally), to pay seven per cent, interest if he would extend the payment one year, and subsequently paid at that rate. Afterwards, Phillips conveyed the premises to defendant Krekeler, who conveyed to defendant Thaule subject to the' mortgage, —neither of whom had any notice of the agreement of Phillips to pay seven per cent, interest, and were not bound thereby, unless the payment of interest at seven per cent, by Krekeler, on one occasion, through his wife, was sufficient notice, and in regard to what occurred and what was said between the plaintiff and Mrs. Krekeler, the testimony was conflicting. The plaintiff obtained judgment, and defendants moved for a new trial at special term, on the ground of surprise and newly discovered evidence, and the motion was granted and an appeal made to general term from the order. Held, by the general term,—
    1st. There were no grounds for a new trial on account of surprise.
    2nd. The new evidence was of declarations of the plaintiff since the trial, contradictory of his testimony at the trial, and tended to establish that Krekeler had no notice of the agreement made by Phillips to pay seven per cent, and paid that amount by mistake.
    3rd. Under the findings and decisions of the court in the case, the question as to whether Krekeler had or had not notice of the parol agreement of Phillips was wholly immaterial.
    4th. The new evidence is cumulative; and therefore the order for new trial was reversed.
    Before Monell, Freedman and Curtis, JJ.

      Decided March 30, 1872.
    Appeal from an order setting aside a judgment at special term, and granting a new trial.
    The action was to foreclose a mortgage upon real property, made by the defendant Phillips in May, 1865, to secure the payment of four thousand dollars, on the first day of May, 1868, with interest at six per cent.. per annum.
    Subsequently to the delivery of the mortgage Phillips conveyed the premises to the defendant, Krekeler, who afterwards conveyed to the defendant Thaule. Each of the conveyances was subject to the mortgage, and each of the grantees assumed and agreed to pay the same. The complaint alleged a failure to comply with the condition of the mortgage by omitting to pay the principal and interest.
    The defense of the defendants, Krekeler and Thaule, was, tender of the amount due before suit brought.

      The action was tried before Mr. Justice Joxes, without a jury.
    On the trial it was found that before the mortgage became due, an agreement was made between Phillips, the mortgagor, and Weiner, the plaintiff’s assignor, and then holder of the mortgage, that if the payment ^ of the mortgage was extended for one year, the interest should be at the rate of seven per cent. The first month’s interest, falling due November 1, 1868, was paid by Phillips at the rate of seven per cent., and a written receipt given. Before the next half yearly interest became due, Phillips sold the premises to Krekeler subject to the mortgage, which the latter assumed.
    The evidence was conflicting as to whether Krekeler had direct notice of the agreement; to pay seven per cent. The plaintiff testified to a conversation which he swore was with Krekeler, when the latter, as plaintiff said, came to pay the interest falling due May 1, 1869, when, as the plaintiff,' says, he told Krekeler the interest was seven per cent., and Krekeler paid at that rate. He said both Krekeler and his wife were present during and at that conversation. The amount then paid was one hundred and forty dollars.
    The witness Christopher testified to saying to Mrs. Krekeler in presence of her husband, that the interest was seven per cent. This was denied by the witness Spaldorf. Krekeler and his wife and one Fitzpatrick all denied that Krekeler was present when the May interest was paid.
    In making up the amount to be tendered, the defendants computed the interest from November, 1868, to the time of tender, at six per cent., and, deducting the payment of one hundred and forty dollars, tendered the balance, thus claiming the excess of per cent, for six months, or about twenty dollars, as a payment on account of the principal.
    . The justice found as one of the facts that said plaintiff demanded said sum of one hundred and forty dollars, as and for said six months’ interest, and said William Krekeler paid the same under fhe mutual mistake of law, that the mortgagee, after his mortgage becomes due, may, as matter of law, demand seven per cent, interest, although the mortgage reserves a less rate, and on the further mutual mistake of law, that a parol agreement between the mortgagee and a former owner of the premises, who was liable for the payment of the mortgage, whereby the rate of interest reserved in the mortgage was waived, was binding on a subsequent purchaser of the premises, who, by the deed to him, assumed the payment of the mortgage, although he had no notice of such parol agreement.
    Thus allowing the plaintiff to retain the one hundred and forty dollars, as interest at seven per cent., due May 1, 1869, as a payment made under a mistake of law as to the effect of the parol agreement with Phillips, upon the purchaser from him.
    The tender was held to be insufficient, and judgment of foreclosure entered.
    Upon an affidavit of one Fitzpatrick, that he accompanied Mrs. Krekeler to pay the May interest, and that Mr. Krekeler was not present. The affidavit of Frost, Krekeler’s attorney, that since the judgment, Ritter the plaintiff, in an examination in another action, testified as follows :—
    Q. Did Mrs. Krekeler and another person call at your place in Houstón-street, on April 38, 1870, to pay you some money on a four thousand dollar mortgage ? ■
    A. N o, but they called to pay the interest then due on that mortgage.
    Q. Did Mrs. Krekeler pay one hundred and forty dollars on that mortgage, in the presence of that person, at that time %

    A. No, she asked to know how much the interest was. I said it was seven per cent., one hundred and forty dollars ; She said, it was all right, I will pay it, and she paid one hundred and forty dollars as interest.

    Q. Do you know William Krekeler ?
    A. Yes.
    Q. Was that person that was present with Mrs. Krekeler, at that time, William Krekeler, her husband?
    A. No, I think not.
    Q. Did you have a trial in the superior court, in October, 1870, in regard to that mortgage ?
    A. Yes.
    Also upon the affidavit of Krekeler that he was not present when his wife paid the interest. His further affidavit that the plaintiff had since stated to him that he thought the person with Mrs. Krekeler must be her husband, but that such person was not Mr. Krekeler. The affidavit of the defendant Thaule, ■ that the plaintiff has since stated that he was mistaken as to Krekeler’s being present. And the affidavit of Heinecke to the same effect. And the affidavit of Krekeler, that such testimony of the plaintiff was upon a material matter, a motion was made for a new trial, and granted at. special term.
    It was claimed that this was newly discovered evidence, and the motion was made on that ground, and also on the ground of surprise.
    The order at special term set aside the judgment and granted a new trial.
    The plaintiff appealed.

      Mr. D. M. Porter, for appellant.

      Mr. A. R. Dyett, for respondents.
   By the Court. — Monell, J.

Although “ surprise ” was one of the grounds upon which the motion for a new trial was made, there was nothing whatever in the affidavits to sustain it. Krekeler, who alone made the affidavit ás to the materiality of the evidence, did not claim that the defendants were surprised by the testimony of the plaintiff, but claimed that it was upon a material matter, which the defendants were now prepared to contradict. Indeed, the defendants could not claim to have been surprised. Mr. Krekeler and Mrs. Krekeler and the witness Fitzpatrick were present when the plaintiff gave his evidence, and afterwards, upon their examinations, denied that Mr. Krekeler was present when his wife paid the interest.

The motion, therefore, cannot be presumed to have been granted on the ground of surprise, but must be presumed to have been granted on the ground of newly discovered evidence.

The new evidence was of declarations made by the plaintiff since the trial, contradictory of his testimony at the trial. If, therefore, such evidence at the trial was to a material matter, the new evidence is ground for a new trial, unless it is merely cumulative.

The largest effect which can be given to this new evidence, is, that it might authorize a finding that Krekeler did not have notice of the parol agreement of Phillips, to pay seven per cent, interest. If he was not present when Mrs. Krekeler paid the interest, then, perhaps, he is not to be bound by what was said to her, and is in a position to claim not to be affected by the agreement.

The competency of this evidence, for the purposes of this motion, depends upon two considerations :

First. Was the evidence it is designed to contradict material to the issue %

The learned justice who tried this action has not made any direct finding in respect to the notice, attempted to be proved, to the defendant of the parol agreement of Phillips. In the view taken by him, that cantract was not binding upon the grantee of Phillips, • who only assumed to pay the rate of interest reserved in the mortgage; and he accordingly found as a fact, that the demand and payment of seven per cent, interest was made under a mutual mistake of law, “ that a parol agreement between the mortgagee and a former owner of the premises, who was liable for the payment of the mortgage, whereby the rate of interest reserved in the mortgage was waited, was binding on a subsequent purchaser of the premises, who by deed to him had assumed the payment of the mortgage, although he had no notice of such parol agreement.

If anything can be derived from this finding,' it is that whether Krekeler had or had not notice of the parol agreement was wholly immaterial. In either aspect the agreement was not binding upon him, and he was liable to pay interest only at the rate reserved in the mortgage. He therefore held that the May payment of interest was made under a mistake of law “that the mortgagee after his mortgage becomes due, may, as matter of law, demand seven per cent, interest, although the mortgage’ reserves a less rate.”

We cannot, upon this motion, question the correctness of the decision below. We must assume it to be correct. If it is incorrect, the court, upon the pending appeal from the judgment, will send the case back for a new trial, when the new evidence, if it is proper, may be let in. But assuming the decision to be correct, then it is clear that the evidence now sought to be contradicted was wholly immaterial, and might very properly*have been excluded on the trial. And this is a complete answer to this motion for a new trial.

Second. But even in the view that the evidence was material, a finding that Krekeler had notice of the parol agreement could not be changed. He sent his wife to pay the May interest, furnishing her with the money, and she, on the demand of the plaintiff, paid at the rate of seven per cent., being told that the interest was at that rate until May. This was communicated to Krekeler by his wife, and he ratified all that his agent had done.

Again: the new evidence is cumulative. The plaintiff was contradicted at the trial by Mr. and Mrs. Krekeler and by Fitzpatrick, all of whom testified that Mr. Krekeler was not present, when Mrs. K. was told the interest was seven per cent, until May. To further contradict the plaintiff, even by his declarations since made, would be merely to accumulate evidence.

The motion for a new trial should not, therefore, have been granted, for all or either one of these reasons: First, the evidence designed to be contradicted was immaterial ; second, such evidence showed that notice of the parol agreement was given to the defendant’s agent; and, third, the new evidence is cumulative.

The order setting aside the judgments and granting a new trial should be reversed, with costs.


author: By the Court.—Curtis, J.

text:
    MARY POULIN, Plaintiff and Respondent, v. THE BROADWAY AND SEVENTH AVENUE RAILROAD COMPANY, Defendants and Appellants.
    The plaintiff, with her child, about two years old, were passengers on one of defendants’ street cars, and the conductor stopped the car at her request, and she sought to alight therefrom with her child in . her arms. While in.the act of alighting, and with one foot on the step and the other on the ground, or before she had got clear of the car, the conductor rung the bell, and the car started.
    The plaintiff wore, as a part of her clothing, a hoop skirt, and one of the steel hoops of the same caught on a nail projecting from the platform of the car, and the plaintiff was thrown upon the ground and dragged some distance over the pavement before the car was stopped, and she was seriously frightened and injured.
    The defendants on the defense claimed contributivo negligence on the part of plaintiff, that she wore hoops, an unnecessary article of female apparel, and being thus attired was bound to exercise more eare in entering and alighting from a car than a man, which she did not do; also that the hoop skirt worn by plaintiff was the proximate cause of the accident, or the use of the same contributed to cause the injury, and therefore she could not recover.

      Held, If hoop skirts are worn by such passengers as the railroad company were in the habit of conveying, the defendants were bound to provide for the safety of the passengers wearing that kind of a garment, for they are bound to carry safely such passengers as they take and are in the habit of taking, and with as much care and caution as prudent and cautious persons would be bound to exercise.
    An ordinary passenger, and still less a woman with a child in her arms, cannot be expected (by the exercise of their ordinary faculties) to anticipate and avoid such an obscure danger as the evidence shows this to have been, and there appears to be no sufficient reason for disturbing the conclusion of the jury upon the evidence, that the injury to the plaintiff was caused solely by the negligence of the defendants.
    Before Monell, Freedman, and Curtis, JJ.

      Decided March 30, 1872.
    Appeal from a judgment.
    The facts and points of the case appear fully in the opinion of the court;

      John M. Scribner, for appellants.

      C. C. Egan, for respondent.
   By the Court.—Curtis, J.

The plaintiff, with her child, about two years old, were passengers from Church-street, corner of Worth-street, in one of defendants’ cars, July 20, 1869. Her destination was Thirtietk-street. The conductor stopped the car for her a little beyond the upper crossing. She alighted from the left hand or westerly side. While in the act of alighting, holding the child in her arms, as the plaintiff and some of the witnesses testify, with one foot yet on the step, and the other on the ground, though the police sergeant testifies she had got both feet on the ground, the car started, the conductor ringing the bell.

The plaintiff, was thrown on the ground, and dragged by a part of her clothing, a hoop skirt, one of the steel bands of which caught on a nail projecting from the platform of the car. There were discrepancies of testimony as to the number of feet she was dragged over the stones of the pavement before the car was stopped, •and her dress detached from the projecting nail of the car. There was contradictory evidence among the medical witnesses, as to the nature and extent of the injuries she sustained.

On the trial two exceptions were taken by defend- ■ ants’ counsel to the rulings of the court, in respect to the allowance of questions to witnesses. The questions related to matters of very little importance or materiality, and the rulings of the court were correct.

The defendants’ counsel moved, at the close of the testimony, to dismiss the complaint on the grounds—

1. That the plaintiff had failed to maintain or prove a cause of action.
2. That no negligence on the part of the defendants had been proved.
* 3. That contributive negligence on the part of the plaintiff had been shown.

This motion was properly denied by the court.

The defendants’ counsel requested the court to charge the jury some eighteen propositions, and excepted to the refusals of the court to charge various of them. The exceptions to such refusals to the following requests were pressed on the argument:

" Fourth. That the plaintiff, wearing hoops, was bound to use extra caution to avoid accidents when she attempted to alight from the car.”
Tenth. If the jury find that the hoop skirt worn by the plaintiff was the proximate cause of the accident, or that the use of the same contributed to cause her injury, she cannot recover/’ .
Eleventh. That a hoop skirt, such as that worn by the plaintiff on this occasion, is ,an unnecessary article of female apparel, and that a lady thus attired is bound to exercise more care in entering or alighting from a street car than a man.” '

The court charged the jury as follows in respect to hoop skirts: “I will not undertake to tell the jury that hoop skirts are unsafe. If hoop skirts are worn by such passengers as the railroad company were in the habit of carrying, they were bound to provide for the safety of passengers with that kind of garment on. They are bound to carry such passengers as they take and are in the habit of taking, safely, with as much care and caution as prudent, cautious persons would be bound to exercise.”

It can hardly be insisted on, that it was the duty of the court to have charged the jury, that a hoop skirt is an unnecessary article of female apparel, or that an extra degree of caution is required on the part of the wearer, to avoid accidents. The court charged the jury correctly upon the subject.

There were many other- exceptions urged, on the argument to other refusals of the court to charge the propositions submitted by the defendant, but, upon reference to the charge, it will be seen, that all the propositions which had any materiality to the issue, and which the defendant was entitled to have charged, were charged, either in words or in substance. Nor does it appear, or is there any reason to beliéve, that the jury were misled by any refusal of the court, to charge any proposition submitted by the defendants (Denis v. Crook, 1 Edm. 95; Patterson v. People, 46 Barb. 625; Downs v. Sprague, 2 Keyes, 57; Mandeville v. Guernsey, 51 Barb. 99).

The charge of the court carefully excluded from the consideration of the jury anything like exemplary or vindictive damages, and limited the damages, if any, to such as she sustained, occasioned directly and immediately by the accident.

The jury found a verdict for plaintiff for two thousand five hundred dollars. I

There appears to be no sufficient reason for disturbing the conclusion of the jury upon the evidence, that the injury to the plaintiff was caused by the negligence of the defendant. An ordinary passenger, and still less a woman with a child in her arms, cannot be expected by the exercise of their usual faculties to anticipate and avoid to them such an obscure danger.

The defendants urge that the verdict is excessive, and much greater than is justified by the circumstances of the accident, or the natural consequences of the actual injury sustained.

The evidence shows conclusively that the plaintiff sustained a severe shock and injuries, and such as testified to, by some of the witnesses, as the verdict would be little compensation for. Upon reviewing the evidence with some care, it does not appear that the damages are excessive, or probably more than any jury would award for the injuries proved. There is no reason for granting a new trial on this account.

For these reasons the judgment and order appealed from should be affirmed, with costs to plaintiff.


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    JOHN M. PENDLETON, Plaintiff and Respondent, v. DAVID PORTER LORD, Defendant and Appellant.
    It is the settled practice ef this court not to grant a motion for a re-argument of a case on appeal at the general term, upon grounds that question the correctness of the former decision made upon the law and the facts as they were placed before the former general term (McG-arry v. Board of Supervisors, 1 Sweeney, 217). Ih this case the respondent holds, that the court in its disposition of the appeal overlooked an important question arising upon the evidence, and that such oversight worked a reversal of the judgment.

      Held, that the question claimed to have been overlooked appears by the opinion of the court to have been fully considered and passed upon, and under these circumstances and the rule of practice referred to (supra), the appeal cannot be re-argued and re-examined.
    Before Monell, Freedman and Curtis, JJ.

      Decided March 30, 1872.
    Motion for a re-argument.
    The action is against the maker of a promissory-note, payable to the order of Charles E. Forman.
    The defendant set up that he made the note in suit solely for the accommodation of the payee, and never received any consideration therefor. That the payee deposited with the plaintiff the note in suit, together with another one of the same amount, as collateral security for a loan of one thousand dollars, theretofore made by the plaintiff to -the payee, on or about May 21, 1866, which loan of one thousand dollars has been paid in full with interest.
    The trial took place before a referee, who found, as a fact, that the note in suit was made by defendant for the purpose of being transferred to the plaintiff as collateral security for moneys which plaintiff had loaned said Forman, or might thereafter loan him, and that plaintiff subsequently advanced and loaned Forman moneys thereon, which had not been repaid, and, as conclusion of law, that plaintiff was entitled to judgment for the amount of the note with interest, for which sum and costs he directed judgment to be entered.
    Upon appeal, the general term reversed the judgment and ordered a new trial upon questions of fact.
    The respondent now moves for a re-argument of the appeal, upon the alleged ground that the opinion of the court shows that the question whether the plaintiff was not entitled to judgment on account of advances made prior to the execution and delivery of the note, has been overlooked.

      Sidney S. Harris, for the motion.

      William H. Forman, in opposition.
   By the Court.—Freedman, J.

This is a motion

for a re-argument of the appeal from the judgment entered upon the report of a referee. It is the settled practice of this court not to grant a motion of this character upon grounds which question the correctness of the former decision made upon the law and the facte as they were before the former general term (McGarry v. Board of Supervisors, 1 Sweeny, 217).

It is conceded that- the appeal has been regularly heard and decided upon the merits, but it is claimed that the general term, in disposing of it, overlooked an important question arising upon the evidence, and that such oversight worked a reversal of the judgment.

The fundamental question of fact arising upon the issues and involved in the appeal was, for what purpose the note in suit had been given to the plaintiff.

The defendant had insisted, by answer and upon the trial, and Forman, the payee, had testified upon the trial, that the note was given as collateral security for prior advances, which were afterwards fully repaid.

The plaintiff had testified that no such arrangement was made, that there was no understanding according to which future advances were covered, but that he discounted or purchased the note absolutely.

The referee, disregarding the testimony of both Forman and the plaintiff, found, as a fact, that the note was given as security for future advances.

This finding the general term declared to be wholly unsupported by the evidence, and the judgment was reversed and a new trial granted for the reason that the ultimate decision of the referee was founded upon a theory which was materially erroneous, and the general term could not properly determine the facts upon the conflicting testimony presented by the case. That such conflict existed and still exists, becomes apparent on a mere inspection of the printed case ; and that all the questions relating to prior as well as subsequent advances, and of the payments made on either, and their respective application by operation of law or the agreement of the parties, were fully presented to the consideration of the court, appears from the printed points submitted by counsel on the former argument. We must assume therefore,-that all these questions were duly considered. Moreover, it sufficiently appears from the opinion of the court that the question claimed to have been overlooked, although distinctly raised by the pleadings, has been noticed and passed upon.

Under these circumstances we cannot open the appeal for a re-examination. The case of McGarry v. Board of Supervisors (supra), is decisive upon this point.

The motion for a re-argument must be denied.


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    HARRY C. HILL, Plaintiff, v. HARVEY SPENCER, Defendant.
    In an action brought by a laborer or servant of a mining corporation against a stockholder of the same, to recover a debt due for services performed for such corporation, under section 18 of the act to authorize the formation of corporations for manufacturing, mining, and chemical purposes (Laws of 1848, chap. 40), it is necessary to prove a judgment against the company, and when proved it furnishes all that is necessary to be proved, so far as establishing the debt against the company for the recovery of which from the stockholder the plaintiff sues.
    It is not necessary that the plaintiff should show that this debt for which he is suing was payable within one year from the time the debt was contracted, before he is entitled to introduce the judgment record.
    One who was employed by and acted for a mining company, as an attorney with full and general powers, and also as a superintendent and commercial agent, is a laborer or servant under the statute. Hovey ®. Ten Broeck, 3 Robt. 316; Williamson v. Wadsworth, 49 Barb. 294; Vincent ®. Bamford, N. T. 3upr. Ot., vol. 33, p. 506 (1 Jones & 8. 506), reviewed and approved, and the ruling therein considered authority for the decision in this case.
    Before Monell, Freedman, and Curtis, JJ.

      Decided March 30, 1872.
    The action is to recover of the defendant," as a stockholder in the American and Mexican Silver Mining Company, for services performed for the company, in the capacity, as alleged, of its servant.

    The complaint alleged the recovery of a judgment against the company and the return of an execution unsatisfied.
    At the trial before Mr. Justice Jones and a jury, the plaintiff offered the record of judgment against the company in evidence, which was objected to on the ground that, to hold a stockholder liable, it is not enough to show that a judgment has been recovered against the company, but before he can introduce the record of such judgment he must show that this debt he was suing for was payable within one year from the time the debt was contracted. Objection overruled and record admitted as evidence that judgment has been recovered for so much money, for services rendered by the plaintiff to the company.
    The defendant excepted.
    The plaintiff proved a written agreement between himself and the company, made May 30, 1863, which is as follows•
    “ This is to certify that Mr. Harry 0. Hill has been appointed by the American and Mexican Silver Mining Company, commercial agent for the management of their commercial and financial affairs in California and Mexico. . . .”
    The plaintiff then testified that under this agreement he went to California, thence to Mexico. That while in California or Mexico, he received from the company the following paper :—
    “ Know all men by these presents, that the American and Mexican Silver Mining Company, a corporation formed and existing under the general mining laws of the State of Hew York, U. S., and whose mines are located in Setentrion, State of Chihuahua, Mexico, do hereby ordain, constitute and appoint Harry C. Hill, now of Mexico, their true and lawful attorney for them and in their name, to take possession of their mines and mining property belonging to them in Mexico, and to manage and conduct their lousiness and affairs in that country the same, in all respecté, as the said company could do if located at the place, and they do hereby ratify and confirm what their said attorney shall lawfully do in the premises.
    “ In witness whereof the company have caused this instrument to be signed and executed in duplicate by their president and secretary, and the seal of the company to be affixed, this eleventh day. of January, Anno Domini eighteen hundred and sixty-four.
    Í Seal of the Am. ) Lyman W. Gilbert, Pres’t. ,, ■j and Mex. Sil. > W. Hart Smith, Sec’y.” ( Mining Co.” )
    That in addition to the written agreements be made a verbal agreement with the treasurer of the company, which was confirmed by the company by the following resolution:—
    “At a meeting of the Board of Directors of the American and Mexican Silver Mining Company held this day, Mr. Hickok reported that he had arranged with Harry G. Hill to continue in the company's employ at the mines in Mexico for one year from June 1, 1864, at a salary of five thousand dollars, and on motion it was voted to ratify and approve said arrangement, and Mr. Hickok was authorized to notify Mr. Hill of tñe same.”
    The plaintiff then testified as follows :—
    Q. State whether or not you performed any duties in the employ of the company under the appointments and agreement you have testified to ? If so, state what those duties were.
    “A. I did perform duties under said appointments and agreement, all that were required of me. I exercised a general supervision of the property there and of all their affairs, employment and management of the men, purchase of supplies, and of all the duties of a general superintendent.
    “Q. State whether or not you had anything to do with the accounts of the company kept at the mines, if there were any such ? and if so, what ?
    “ A. Yes, sir. For a time I kept the accounts; until Mr. Hickok came there.

      ‘‘ Q. Who attended to the payment of the hands employed at the mines %

    “A. Myself and Mr. Willard.
    ‘‘Q. State whether or not you were ever obliged to travel for the company. If so, for what purpose %

    ‘‘ A. I was obliged to travel for the company, to re- < ceive, forward, and purchase machinery, supplies, &c., and also to perfect the title of the company to the mines.
    ‘‘ Q. Where were these mines of the company situated ? How many were there of them ?

      “ A. They were situated in the Canton of Matamoras, in the State of Chihuahua, in Mexico. The mining settlement owned by the company was called Setentrion. There were three mines. I resided in Sententrion at the hacienda, which was a mile from one mine, three miles from another, and about four miles from another.

      “ Q. How many men were employed under you in the service of the company at the mines while you were there, and about what were they employed ?
    " A. There were from a dozen to seventy-five men employed at different times in mining, making roads, getting out timber, building houses, &c.”
    There were several objections to the introduction of evidence, which appear in the opinion.
    A motion was made to dismiss the complaint, which was denied, and the defendant excepted.
    The court directed a verdict for the plaintiff, and sent the exceptions to the general term, suspending the judgment.

      Prichard, Choate & Smith, for plaintiff.

      Duncan Smith, of counsel.

      Mr. John H. Platt, for defendant.

      Mr. John Slosson, of counsel.
   By the Court.—Monell, J.

Section 18 of the act to authorize the foundation of corporations for manufacturing, mining, mechanical, and chemical purposes (Laws, 1848, chap. 40), provides that:

i “ The stockholders of any company organized under the provisions of this act, shall be, jointly and severally, individually, liable for all debts that may be due, and owing to all their laborers, servants and apprentices, for services performed for such corporation,’.’ and the chief question presented, is whether the plaintiff was a servant of the company, within the fair intent and purpose of the statute.

The facts in this case are very similar to those in Hovey v. Ten Broeck, 3 Robt. 316, where we held that a person occupying the position, and performing the duty, of a general superintendent at the mines, was a servant within the meaning of the statute.

In the case at bar, the plaintiff was employed by the company to manage their commercial and financial affairs in California and Mexico, with authority to conduct their business in all respects as the company would. Under that appointment the plaintiff performed all the duties required of him. He exercised a general supervision of the property, and of all the affairs of the company; employed and managed the men; purchased supplies and performed all the duties of a general superintendent. He kept the accounts at the mines, and attended to the payment of the men. He also traveled for the company to receive, forward and purchase machinery and supplies. There were under him from twelve to seventy-five men, engaged in mining, making roads, getting out timber and building houses.

The only difference in the character of the service performed by the plaintiff, and such as was performed by Hovey (Hovey v. Ten Broeck, sup.), was that Hovey sometimes worTced with the .men. But how often or how long he worked with the men, does not appear, and it is proper to presume, from the extent of the other service performed, that the manual service was only a very small part of the service for which he recovered.

The difference alluded to, I do not think sufficient to deprive the case of Hovey of its authority. The general character of the services in the cases were alike, and were alike of a nature to bring them within the intent and purpose of the statute.

The same difference, in a smaller degree, in the character of the service, is found in the very recent case, in this court, of Vincent v. Bamford, 33 N. Y. Sup. Ct. 566 (1 Jones & Spencer). But no such difference exists in Williamson v. Wadsworth, 49 Barb. 294, where the plaintiff was the civil engineer and traveling agent” of the company, and was allowed tore-cover as for services performed by a servant.

As this court has already held (Vincent v. Bamford, sup.) that Hovey v. Broeck is not overruled by Coffin v. Reynolds (37 N. Y. 642), we are authorized to foEow that case and sustain the direction of the learned justice at the trial.

No point was made by the defendant on his objection to the judgment roll. It was necessary to prove the judgment against the company, and when proved, it furnished all that the defendant claimed should have been previously proved.

The objection to the letters from the president of the company to the plaintiff’s brother, was properly disposed of. They do> not appear to contain anything prejudicial to the defendant, or serviceable to the plaintiff; but as the. letters were directed by the writer to be sent to the plaintiff, they were competent for what they were worth. Nor was the plaintiff bound to produce and read the letter referred to in the letter of -Tuly 31. The defendant could have given it in evidence, if he could have got it, or, having laid the proper foundation, he could have proved its contents. Its non-production by the plaintiff was not a sufficient reason for excluding the other letter.

It was objected for the first time on the argument of these exceptions, that as there was no evidence of any agreement by the company to pay for the services of the plaintiff after the expiration of the year commencing June 1, 1864, and as the claim in the suit was for services from June 1,1865, to May 23,1866, there could be no recovery against the defendant.

The objection comes too late. It should have been made at the trial, when the deficient evidence might z have been' furnished (Shaffer v. Guest, 6 Robt. 264; Stewart v. Smith, 14 Abb. 75 ; Colwell v. Lawrence, 24 How. Pr. 324).

Being unable to discover any error committed at the trial, I am of opinion that the exceptions should be overruled and judgment ordered for the plaintiff on the verdict.


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    DUNCAN McCOLL and SAMUEL S. I. FIRTH, Plaintiffs and Respondents, v. THE SUN MUTUAL INSURANCE COMPANY, Defendants and Appellants.
    An order for a commission in a cause to examine foreign witnesses cannot be issued after the trial and judgment in the action.
    It cannot be issued for the purpose of preserving or perpetuating testimony which, the party might lose by the death or absence of the witnesses, in the event of a reversal of the judgment and a new trial being directed, because the statute providing for the perpetuating of testimony applies only to witnesses in this State, and cannot be extended so as to authorize the examination of" foreign witnesses.

      On the motion for a commission in such a case, if the case and exceptions on th e appeal pending were before the special term, and it clearly appeared therefrom to the court, that error had been committed on the former trial, and that there was no reasonable doubt of a reversal of the judgment and another trial being ordered, would the court in such a case have the power to order the issue of a commission in the cause to examine foreign witness in anticipation of a new trial ?
    Such a submission of the case, on the motion to, and such a determination by, the special term, was absolutely necessary to furnish even a plausible pretext for the order.
    Before Monell, Freedman and Curtis, JJ.

      Decided March 30, 1872.
    Appeal from an order.
    This action was tried by the "court and a jury, and resulted in a verdict for the plaintiff, upon which a judgment was entered on February 1, 1870.
    The defendants appealed to the general term, and the appeal is now pending.
    Another action by the same plaintiff against the Harmony Insurance Company, to recover on another policy for the same loss, was pending and untried, when in May, 1870, the plaintiff applied to the special term for a commission to issue to examine witnesses in both actions, and an order was made allowing the commission in each of the actions.
    The defendants in this action (the Sun Mutual) appealed from the order, allowing a commission to issue therein, having resisted the order below, on the ground that it could not issue after trial and judgment.

      Mr. J. H. Choate, for appellants.

      Mr. A. Matthews, for resdondent.
   By the Court.—Monell, J.

This appeal presents the novel question whether an order allowing a commission for the examination of foreign witnesses can be issued after trial and judgment in the action.

There was no common law right to take the deposition of a witness out of the State to be read at the trial. Parties in civil actions had the right to have the ¡witnesses give their testimony in the view and presence of the court and jury.

But it is provided by statute that the court may award a commission to examine a foreign witness upon interrogatories (2 Rev. Stat. 393), with a further provision, that the examination and depositions taken, may be used in evidence on the trial of the cause.

It would seem to be the only construction of the statute, that the commission should issue "before the trial, inasmuch as the evidence taken can be used only at the trial; and that undoubtedly is the correct construction.

The respondent’s counsel suggested two reasons in support of the order. One was, that the word “pend-, ing ’ ’ in section 12 of the act, having been interpreted to extend to the final determination of the action, this action, although tried and now in judgment, is to be regarded asa “pending” action. But section 12 provides merely that if the action is pending in the supreme court, application for a commission must be made as therein prescribed, and in no way extends the time for its issuing.

The other reason was, that the order was proper for the purpose of preserving evidence, which the party' might lose by the death or absence of witnesses, in the event of a reversal of the judgment and the ordering of a new trial.

Even if this was a sound reason, it would necessarily involve the pre-determination of questions which were not, and properly could not have been before the special term. The case or exceptions upon which the defendants are moving for a new trial, were no part of the motion papers, and the learned justice could not, therefore, have determined that there was error so clear, that there could not be a reasonable doubt of a reversal of the judgment.

And such a determination was absolutely necessary to form a plausible pretext for the order.

If there was not to be a new trial, then the evidence could never be used, and it was a work of supererogation to take it. If a new trial was doubtful, the doubt should have weighed against the order.

But there was nothing before the special term, and there is nothing before us now, from which it can be seen that there must inevitably be a new trial. And unless that can be seen, then in no aspect was the order proper/ Every presumption is in favor of the correctness of the judgment. We must, therefore, assume that there was no error committed at the trial, and that the judgment will stand.

’ The statute for causing testimony to be perpetuated, does not cover the evidence in that case. That statute applies to witnesses within the- State, and cannot be extended so as to authorize the examination of foreign witnesses.

The order appealed from is reversed, with costs.


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    DUNCAN McCOLL and SAMUEL S. I. FRITH, Plaintiffs and Respondents, v. THE SUN MUTUAL INSURANCE COMPANY, Defendants and Appellants.
    In an action on a marine policy against the underwriters, the plaintiff must prove either an actual total loss or else a constructive total loss.
    The only evidence in this case of an actual total loss, was in the testimony of the captain, in relation to the stranding and filling of the vessel, the loss of its spars and boats, and the parting of its hawser and chain, but these numerous disasters and losses do not of themselves show a total loss. The captain also testifies that “ in fine minutes from the time she struck she was a complete wreck, ” but he stated no facts as the basis of this conclusion, and his bare statement that “ she was a complete wreck" is but an expression of an opinion on his part, and must be weighed in connection with the testimony of the plaintiff, that notwithstanding the situation of the vessel as described by the captain, she was afterwards rescued, repaired, and for years thereafter was a sound and seaworthy vessel.
    Viewed in this light, this assertion of the captain that-“sA<? was a complete wreck" does not establish such proofs of actual total loss of the vessel, that the underwriters are entitled to, for their protection and as their right.
    It not being an actual total loss, the verdict cannot be sustained as 'for a constructive total loss, for the reason that the necessary proof or evidence establishing the right of the plaintiffs to abandon the vessel and insist upon a constructive total loss was not introduced upon the trial of the case.
    Before Monell, Freedman, and Curtis, JJ.

      Decided March 30, 1872.
    • • Appeal from a judgment; also from an order refusing a new trial.
    The facts in the case and the question appear fully in the opinions of the court.

      Joseph H. Choate, for appellants.

      Albert Matthews, for respondents.
   By the Court.—Curtis, J.

The defendants, by their policy, dated November 26, 1864, insured the plaintiffs, on account of whom it might concern, loss payable to them or order, on the bark Lindo, for the" voyage, “at and from Miramachi to a port in Cape Breton, and at, and thence to New York.”

By the policy, it was agreed, that in case of any claim for loss or damage, a deduction of one-third from the cost of repairing or replacing the same should be made, after certain other deductions enumerated in the policy; also, that if a technical total loss be claimed, similar deductions should be made from the cost of the estimated repairs, and unless the net cost thereof would exceed a moiety of the value of the vessel after making such deductions, the loss should be deemed partial only. The plaintiff claimed for a total loss, but no actual abandonment was ever made. By the policy, it was also warranted that the vessel was commanded by a captain holding a certificate from the American Shipmasters’ Association.

. The defenses relied upon were, first, that at the time and place of the loss, the vessel was not covered by the policy ; second, that there was a breach of the warranty in respect to the captain, he not being shown to hold the certificate required by the policy; third, that a total loss was not proved, and that as a partial loss, no proof was given which would enable an adjustment to be made according to the terms of the policy.

The vessel sailed from Mirimachi, ¡November 24, 1864, and on the evening of the 25th passed the north cape of Cape Breton. It was a stormy coast, and at an inclement season of the year, the weather squally, with snow; and the captain, on the 26th, put into the port of Sydney, on Cape Breton, as a port of safety. Under the policy, he had a right to put into any ports and places, if obliged by stress of weather. The captain went by land to Big dace Bay, and also, on the same day, to Cow Bay, which is about twenty miles from Sydney. At the former place there was no wharf, and he could only load sixty or seventy tons a day, lying half a mile or more from the shore. At the latter, there was a wharf between three and four hundred feet long, and where he could load four hundred tons a day. Here he obtained a charter to take a cargo of coal to Mew York. He remained until December 13 in Sydney harbor, awaiting his turn to load at Cow Bay, as appears to be the custom of vessels during the inclement season of the year, in consequence of the exposed and dangerous condition of both Big Grlace Bay and Cow Bay for vessels at that time taking in cargo.

Gfoing from Sydney to Cow Bay, she encountered very, rough weather, such as usually prevails there at that season, got blown off, and lost an anchor and a man. Arriving at Cow Bay, the Lindo anchored about one-eighth of a mile from the head of the wharf, where several small vessels were then still loading.

The next morning she commenced discharging ballast, but did not get into the wharf at Cow Bay until the evening of December 18. After she got into the wharf, she finished’discharging ballast, and commenced loading on the 19th, and took in about four hundred tons of coal, and kept on working all night until the morning of December 20.

The sea heaved, and knocked the vessel about, so that the captain could not keep her under the coal shoot for loading. ' He secured her to the wharf and held on there until nine o’clock in the morning, when she broke adrifhand went ashore, bilged and filled with water, and in about five minutes after, the mainmast and fore and mizzentopmast were all taken away. Indeed, in five minutes from the time she struck, he testifies, she was “a complete wreck.” Both boats were lost, and the captain and crew, being unable to get off, remained on the wreck for about thirty hours. At the time of the shipwreck, the loading of the vessel had nearly been completed, her full cargo being about six hundred ton's of coal. When she broke from the wharf, her new chain and hawser had parted, and some of the bits of the vessel had pulled out, two on the top-gallant forecastle, and two on the half-deck, and one on the quarter-deck. She had struck , her stern first upon the reef, and the whole of the hulk of the vessel lay upon the rocks. At low tide there was about a foot of water under her stern, and about nine or ten feet under her bow.

On January 25, 1865, the plaintiff, acting on behalf of the owner, presented to the defendants a protest of the captain, first mate and carpenter, dated December 21, 1864 ; also a survey of the harbor master, merchant and captain, of like date, a copy of the ship’s register, accounts of sales, dated December 30, 1864, and January 2, 1865, and vouchers, and also a statement of the adjustment of salvage, dated January 25, 1865, and made claim for a total loss, crediting the defendants with a small amount of salvage. On the trial, these papers, together with affidavits of the captain, dated May 5, 1865, and May 20, 1865, and protest, dated April 5, 1865, were admitted by the court only as evidence of service of proofs of loss upon the defendant, but not as evidence in chief. There was evidence she was sold as a wreck, and realized the sum of nine hundred and fifty-three dollars and sixty-five cents, net proceeds.

It appears in evidence that after lying some. time on the rocks at Cow Bay she was got off, towed round to Sydney and repaired, but at what cost does not appear. She was restored, however, to a sound and seaworthy condition, and at the time of the trial (1870), and for a long time prior, she was in the hands of the plaintiffs (as consignees), and prosecuting voyages. It appears that in October, 1865, she was at Sydney; that in 1867 she sailed from Prince Edward Island for a port in England. In 1869, she was in New York, in good condition, arriving in July, consigned to the plaintiffs, and they then chartered her to Hughes & Co., and despatched her to Montevideo, which voyage she was prosecuting at the time of the trial.

Plaintiffs having rested their case, the defendants’ counsel then moved to dismiss the complaint on the following grounds, among others.

1. Because the loss is not proved.

That total loss only is claimed. But there was no actual total loss, because the vessel was not destroyed. She remained as a ship notwithstanding the disaster, and she is proved to have been in 1869 in the port of New York, and to have been a strong, staunch and seaworthy vessel, belonging to a connection of the plaintiff, McColl, and managed by him.

Also that the plaintiffs cannot recover as for a technical total loss, because there was no abandonment to the underwriters, which is absolutely necessary to en able the assured to turn a loss, otherwise partial, into . a constructive or technical total loss, and because she is not proved to have been injured by the perils insured against to an amonnt exceeding half her value within the rule, and also because' the insured made no effort whatever to float and save the ship.

Nor can they recover the actual damage as a partial loss, because there is no proof of the amount of the same, and no verdict for any specific amount could stand.

They claim no partial loss, have presented no preliminary proofs of any partial loss, and should not be allowed to recover therefor.

Tne court denied the motion to dismiss, and defendants’ counsel excepted.

No evidence was offered on the part of the defendants.

The defendants’ counsel moved the court to direct a verdict for the defendants.

The motion was denied, and the defendants excepted.

The learned judge directed a verdict for the plaintiffs for thirteen thousand one hundred and fifty-four dollars and fifty cents.

To which direction defendants’ counsel excepted.

The question arises whether, upon this state of facts, there was such proof of a total loss of the vessel as to justify a verdict against the underwriters. It is not only important for the protection both of owners and underwriters, but in the light of a matter of public policy, that these contracts for marine insurance should be liberally interpreted and divested of all that seems obscure and technical. This appears to be the policy of the courts in England and this country when called upon to interpret them. Though as a branch of law comparatively modern in its existence, certain principles have been long settled in its administration, which are deemed vital for the protection of all parties.

The plaintiffs must prove either an actual total loss, or else a constructive total loss. In examining to find the evidence of an actual total loss, the testimony of the captain seems to be all there is relating to that subject, in the case. He testifies to the stranding and filling of the vessel, the loss of spars and boats, and parting of the bitts, and the parting of chain and hawser. These disasters and losses do not of themselves show that she became a total loss. The captain testifies “in five minutes from the time she struck she was a complete wreck,” but he does not state facts that show it, or how he arrived at that conclusion. This portion of his statement is after all but an expression of opinion on his part, and it must be further weighed in connection with the plaintiff’s testimony, by which it undisputedly appears that she was got off, repaired, and for years after was a sound, seaworthy vessel, and for which they acted as consignees. Viewed in the light of these surroundings, the bare opinion of the captain that “she was a complete wreck,” unsupported by other proofs, does not establish that actual total loss of the vessel, that the law permits the underwriters to require to be proved clearly and fully for their protection and as their right (King v. Hartford Ins. Co., 1 Conn. 421; Sewall v. U. S. Ins. Co., 11 Pick. 90; Peele v. Merchant Ins. Co., 3 Mas. 42; Wood v. Kembic Ins. Co:, 6 Mass. 479 ; Patrick v. Com. Ins. Co., 11 Johns. 13; King v. Middletown Ins. Co., 1 Conn. 201; Peele v. Suffolk Ins. Co., 7 Pick. 257).

If it was not an actual total loss then it is to be considered whether the verdict can be sustained as a constructive total loss. Here the plaintiffs encounter a difficulty upon the threshold. When the loss is total, and there is nothing to abandon, an abandonment is of little moment.

But a loss in itself partial, may, by the exercise of the assured’s right of abandonment, be converted into a constructive total loss, upon the idea that the underwriter thereby receives all the benefits of ultimate recovery and salvage, and that, as these thus inure to his' advantage, a constructive total loss is created by the abandonment (2 Parsons M. Ins. 152 ; 2 Phillips Ins. §§ 1490, 1535, 1536).

In the present case the necessary proof.to establish the right to abandon, and insist upon a constructive total loss, has not been introduced. The rule is settled that to authorize this, the cost, or the estimated cost of the repairs, must amount to more than half the value of the vessel when repaired (Sawiez v. Sun Mut. Ins. Co., 2 Sand. 482).

There is no evidence showing, 3r tending to show, what would have been, or was, the cost of repairing the vessel in question (Feedler v. N. Y. Ins. Co., 6 Duer, 282).

It is quite possible that there may be evidence, at a future trial, that will obviate these difficulties that now embarrass the plaintiffs’ case; but as it now appears, without considering the further questions raised by the defendants, the judgment and order appealed from should be reversed, with costs to the appellants to abide the event, and a new trial ordered.