text:
    SETH DRIGGS, Plaintiff and Respondent, v. SILAS C. SMITH, Defendant and Appellant.
    In the case at bar, the testimony as to the amount of money loaned was conflicting. After the plaintiff had testified as to the amount, his counsel produced a paper and handed it to the plaintiff then on the witness stand, and requested him to examine it and state what it was, and thereupon plaintiff made the following statement:
    “ About a week after loan was made I called on Mr. Smith, the defendant, and asked the exact amount of money received from him, as I had no memorandum of it; he told me §1,887.68 as the amount paid by him to Mitchell, and §195.65 paid in money to me; I wrote it down on this piece of paper on his desk, and that was all the money received by me.”
    The contents of the paper were as follows :
    “January 7, 1871.
    “ Cash from Silas C. Smith by Mrs. De Reeve, §195.65 ; two notes of §250 “ each, payable in three and six months, for the interest on $1,887.68 for ‘ six months.”
    Paper offered in evidence on behalf of plaintiff. Objected to by defendant’s counsel as irrelevant and incompetent, it not appearing that witness’s recollection is not clear and distinct; but, on the other hand, it appearing that witness’s recollection is clear and distinct, he having testified in detail. Objection overruled, and paper admitted, and exception duly taken to the admission of the exhibit. And on appeal defendant rested his entire case.
    Before Freedman, Curtis, and Vah Vorst, JJ.

      Decided, June 28, 1873.

      Held, That the admission of the memorandum or paper was error, and that it was inadmissible under the rule, as established by the several decisions cited and reviewed by the court. (See opinion of Freedman, J.) •
    The rule as laid down by Selden, J., in Russell v. H. R. R. Co. (17 N. Y. 134) approved by this court, and restated as follows :
    “ A witness who says that after refreshing his memory by a written memorandum made by himself at or about the time of the occurrence—he cannot recollect, the facts, but that he is confident that he knew the memorandum to be correct when it was made—is not required to swear to the facts in positive terms, but the memorandum itself is received in connection with and as auxiliary to the oral testimony.” At the same time, however, it was held, with the concurrence of all the judges, that “ it is an indispensable preliminary to the introduction of such a memorandum in evidence, that it should appear that the witness is unable, with the aid of the memorandum, to speak from memory as to the facts. It is only as auxiliary to, and not as a substitute for, the oral testimony of the witness, that the writing is admissible. It is the duty of the court, in all such cases,, to see, before receiving the memorandum in evidence, that it was made at or about the time of the transaction to which it relates, that its accuracy is duly certified by the oath of the witness, and that there is a necessity for its introduction, on account of the inability of the witness to recollect the facts.” And as it appeared that the witness had a distinct recollection of all the facts, independently of the memorandum, the latter was held tovhave been improperly admitted, and the judgment was for that reason reversed and a new trial ordered.”
    Appeal from judgment entered upon the report of a referee.
    The action was brought to recover the sum of $835.30, with interest, under the following circumstances :
    On the 7th of July, 1870, the plaintiff borrowed of the defendant, at the city of New York, $2,082.73 for the term of six months, and agreed to pay the defendant as interest for the said period the sum of $500. To secure the repayment of said money so loaned, and said interest, the plaintiff executed as for said interest two promissory notes, each for the sum of two hundred and fifty dollars, and each payable to the order of Fannie T. De ¡Reeve, one of them payable in three months, and the other in six months, each bearing lawful interest from the date thereof, July 7th, 1870, which notes, after endorsement thereof by the said payee thereof, were delivered by plaintiff to said defendant, and that plaintiff also executed and delivered to said defendant a chattel mortgage wherein the said Fannie T. De Reeve joined, on the furniture in the house known as Wo. 74 University place, owned by plaintiff, and leased to said Fannie T. De Reeve, to secure the repayment of said principal sum so borrowed, and said usurious interest, and also at the same time as additional security for the same caused to be assigned to defendant a chattel mortgage held by John W. Mitchell, of said city, executed by said plaintiff and said De Reeve, on the same property in part described in the first-mentioned chattel mortgage, and also delivered to said defendant, as additional security for said sum so borrowed, and said interest, ten bonds with coupons attached of The Portage Lake and Lake Superior Ship Canal Company, issued July 1st, 1865.
    Shortly after the maturity of the loan, plaintiff made a tender which was more than sufficient to cover the principal sum borrowed with lawful interest thereon. Defendant refused to accept it, and plaintiff finally, to wit on the 21st of January, 1871, paid under protest the sum of $2,996.58, which sum included the principal sum borrowed, $2,082.73, the sum of $500 for interest, and the further sum of $400.73, which last-named amount the defendant extorted under a threat to foreclose the mortgages.
    Defendant denied that there was any agreement to pay usury, and alleged that he procured for and loaned to plaintiff, on and before July 7,1870, sums amounting to $2,496.58, and that the mortgages aforesaid were taken to secure said sum and the payment of certain services which he undertook to perform for plaintiff.
    He also claimed that said sum of $2,496.58, with interest, and the value of services performed, amounted, on January 21, 1871, to more than $2,996.58, but that on the tender of said amount, being the amount of the mortgages, he cancelled the same.
    The referee found for the plaintiff", and gave judgment for the amount claimed and interest, and the defendant appealed.

      Peabody & Baker, attorneys, and Fisher A. Baker, of counsel for appellant.

      T. C. Campbell, for respondent.
   By the Court.—Freedman, J.

The testimony given by the parties on the trial as to the amount actually loaned was conflicting. Plaintiff testified that on a certain day in the month of July, 1870, he borrowed from the defendant $1,887.68, which he received through Mitchell, and $195.67, which he received from the hands of the defendant. His counsel then produced a paper, and requested plaintiff to look at it and to state what it was. Plaintiff in pursuance of such request made the following statement:

“About a week after the loan was made I called on Mr. Smith, the defendant, and asked the exact amount of money received from him, as I had no memorandum of it; he told me $1,887.68 as the amount paid by him to Mitchell, and $195.65 paid in money to me. I wrote it down on this piece of paper on his desk, and that was all the money received by me.”

The contents of the paper were as follows :

“Cash from Silas C. Smith, by Mrs. De Peeve, $195.65 ; Two notes, of $250 each, payable in three and six months, for the interest on $1,887.68 for six months.”

The paper was thereupon offered in evidence. Defendant’s counsel objected to it as irrelevant and incompetent, for the reason that it did not appear that witness’ recollection was not clear and distinct, but that, he having testified in detail, the contrary appeared.

The objection was overruled and the paper admitted. Defendant excepted, and on appeal rested his entire case upon such exception.

As shown in Guy v. Mead (22 N. Y. 462), the doctrine of the courts of this State originally was, that such a paper could not be given in evidence as an independent piece of testimony. The rule was that it might be referred to by a witness to refresh his memory, but that he must then swear to the truth of the facts, or his statement would not be evidence.

Subsequently it was held that original entries might be read in evidence, though the witness had forgotten the fact attested by them. But the rule was restricted to entries made by the witness in the course of his business.

In Halsey v. Sinsebaugh (15 N. Y. 485), the rule was still further relaxed, and the principles first stated in Cowen and Hill’s notes to Phillip’s Evidence (note 528, to p. 290), “ that an original memorandum, made by ‘ ‘the witness presently after the facts noted in it trans-1 ‘ pired, and proved by the same witness at the trial, may - “ be read by him, and his evidence to the jury of the “ facts contained in the memorandum, although the “ witness may have totally forgotten such facts at the “time of the trial,” was adopted without reservation and laid down as the law of this State.

In Russell v. The Hudson River Railroad Company (17 N. Y. 134), Seeder, J., who had delivered the opinion of the court in Halsey v. Sinsebaugh, restated the rule to be that:

“ A witness who says, that after refreshing his mem- “ ory by a written memorandum made by himself at or ‘1 about the time of the occurrence, he cannot recollect “the facts, but that he is confident that he knew the “memorandum to be correct when it was made, is not “required to swear to the facts in positive terms, but “the memorandum itself is received in connection with, “and as auxiliary to, the oral testimony.” At the same time, however, it was held, with the concurrence of all 'the judges, that “it is an indispensable preliminary to the introduction of such a memorandum in evidence, that it should appear that the witness is unable with the aid of the memorandum to speak from memory as to the facts. It is only as auxiliary to, and not as a Substitute for, the oral testimony of the witness, that the writing is admissible. It is the duty of the court in all such cases to see, before receiving the memorandum in evidence, that it was made at or about the time of the transaction to which it relates, that its accuracy is duly certified by the oath of the witness, and that there is a necessity for its introduction on account of the inability of the witness to recollect the facts.” And as it appeared that the witness had a distinct recollection of all the facts, independently of the memorandum, the latter was held to have been improperly admitted, and the judgment was for that reason reversed, and a new trial ordered.

As thus settled, the rule is still in force (Brown v. Jones, 46 Barb. 400 ; Meacham v. Pell, 51 Barb. 65). Hone of the authorities cited by the respondent has worked a change in it. In Guy v. Mead (supra), in which the judgment was reversed on account of the exclusion of the memorandum, the witness had testified that he had no recollection independently of the writing. In Philbin v. Patrick (6 Abb. N. S. 284), and in Lewis v. Ingersoll (1 Keyes 347), the admission of the memorandum was upheld, because the proper foundation had been laid. In Marcly v. Shults (29 N. Y. 346), and in Downs v. N. Y. Central R. R. Co. (47 N. Y. 83), the memorandum was rejected on account of its not being the original. The case of the Townsend Manufacturing Co. v. Foster (51 Barb. 346), appears to have been decided upon the authority of Halsey v. Sinsebaugh (supra), and the point, that a foundation for the introduction of the memorandum must be laid, was not raised at all.

It is clear, therefore, that in the case at bar the memorandum was improperly admitted. It was incompetent evidence, and as it fully appears that it did not relate to a comparatively or relatively unimportant branch of the case, but to a highly material point, in fact to the point upon which the case turned, and in respect to which it tended to corroborate plaintiff’s version, the error cannot be disregarded (Worrall v. Parmelee, 1 N. Y. 519 ; Williams v. Fitch, 18 N. Y. 546).

The decision in Murray v. Smith (1 Duer, 412, as shown in Wilmot v. Richardson, 6 Duer. 328, 339), was reversed by the Court of Appeals solely on the ground that the admission of incompetent evidence bearing upon the issues, and duly excepted to, constitutes error, which entitles the party excepting to a new trial. That the question has been presented by a bill of exceptions, instead of a full case, is no ground for a departure from, but rather a reason for adherence to, the last-named rule, because without the whole evidence before us it is impossible to say that the admission of the memorandum did not prejudice the defendant in the estimation of the referee.

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

Curtis and Yah Yorst, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Monell, J.

license: Public Domain

text:
    SARAH O. ALLEN, Administratrix, Plaintiff and Respondent, v. WILLIAM G. WARD, Defendant and Appellant.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.
    Bankruptcy Proceedings against Cobpobation.—Effect of, on Liability of its Stockholders.
    1. An adjudication in an mvoluutaiy bankruptcy proceeding against a. corporation, adjudging the corporation a bankrupt, and appointing an assignee of its effects, does not affect the enforcement of the claim of a creditor of the corporation against its stockholders,

      a. Notwithstanding such adjudication and appointment, the creditors of the corporation may recover against the stockholders. ■
    1. This, although the creditor may have proved his debt against the bankrupt estate, and filed his claim with the assignee.
    Appeal from judgment and order.
    This action was against the defendant as a stockholder of an express company, to recover the value of property sold and delivered to the company.
    An action for the recovery of the demand was commenced against the company, and a judgment obtained upon which an execution had been issued and returned unsatisfied.
    The defence to this action was, that the company had been adjudged a bankrupt, and an assignee of its effects appointed, and that the plaintiff had proved her debt against the bankrupt estate, and filed her claim with the assignee.
    At the trial an offer to prove the facts constituting the defence was excluded, and the defendant excepted.
    The court directed a verdict for the plaintiff.
    The defendant appealed. ■

      Elihu Root, attorney, and of counsel for appellant, urged:

      First. The proof in bankruptcy, evidence of which the court excluded, was a voluntary waiver and extinction of the right of action against the corporation upon which the plaintiff’s claim against this defendant is founded (The United States Bankruptcy Act of 1867, § xxi ; Marbury v. Madison, 1 Cranch. 137-180 ; In re Rosenberg, 2 B. R. 82).

      Second. Independently of the express provision of section 21, the plaintiff’s proof of her claim in the bankruptcy proceeding is a bar to this action so long as the state of things shown on the trial continues to exist.
    The bankruptcy proceeding is in its nature and effect identical with the proceedings in equity against an insolvent corporation provided for by our Revised Statutes.
    When such a proceeding was commenced, not only could all suits at law against the corporation and stockholders be stayed, but creditors becoming parties to such proceedings were ipso facto prevented from proceeding at law (2 R. S. 466 ; Hutchinson v. N. Y. C. Mills, 2 Abb. 401).
    The statutory provision requiring judgment and return of execution unsatisfied against the corporation, before suit against the stockholder, was intended by the legislature as a safeguard to the stockholder' (Corning v. McCullough, 1 Comst. 47-67).
    It was to secure the exhaustion of the remedy against the corporation before the stockholder should be called upon to respond.
    If this plaintiff had united in the proceeding under the Revised Statutes, to reach the unpaid balances of stock subscriptions which constitute a trust fund for the payment of creditors (Mann v. Pentz, 3 N. Y. 416), it would be that remedy which she must show to be exhausted.

      Eaton, Tailer & Cadwalader, attorneys, and J. L. Cadwalader, of counsel for respondent, urged :
    (1.) A creditor of an individual does not, by proving Ms claim, extinguish his right of action, but waives his remedies so far as they are inconsistent with the act (Bump’s Bankruptcy, 6th ed. p. 437; Hoyt v. Freel, 8 Abb. Pr. N. S. 220).
    A collateral remedy not directed at the debtor could always be enforced.
    (2.) The Bankrupt Law, section 37, provides that no corporation, and no member, etc., of any such, shall be discharged. To allow this defendant to defend on this ground is a violation of the statute (Bump’s Bankruptcy, 6th ed. pp. 437, 438; Allen v. Soldiers, etc., Co., 4 B. R. 176; Meyer v. Aurora Ins. Co., 7 B. R. 191).
    The whole question was passed on when this corporation moved for a stay on this very judgment obtained against it in the Supreme Court (see Allen v. Soldiers, etc., Co., supra).

    (3.) Section 21 of the act, providing all suits, etc., shall be stayed, has no reference to corporations, and the only remedy of the defendant was a stay on the original cause of action, which was attempted and failed. When no discharge could be granted, no stay 'would be granted.
    So much of section 31 as prescribes a penalty for proving a debt applies only to a debt which may be discharged.
    A debt against a corporation or one contracted by fraud cannot be affected (In re Robinson, 6 Blatch. 253 ; In re Rosenberg, 2 B. R. 81; In re Wright, 36 How. Pr. R. 167 ; In re Migel, 2 B. R. 153).
    (4.) Besides the condition precedent, on the happening of which, by the terms of the act, the defendant became liable, had arisen. The defendant became liable, bankruptcy or no bankruptcy, whenever a judgment had

      been obtained, and an execution upon it returned unsatisfied.

    As shown above, a stay was attempted and failed, and the judgment and execution now stand unquestioned. Whether this corporation is bankrupt or not—solvent or insolyent, will make no difference—when the judgment is recovered and the execution returned, the act, by its terms, makes the defendant liable.
   By the Court.—Monell, J.

The provision of the Bankrupt Law (§21), which declares that no creditor proving his claim shall be allowed to maintain any suit therefor) at law or in equity, against the bankrupt, cannot have any broader effect than is warranted by the letter of the statute. It does not inhibit other or collateral remedies. The right of action, therefore, against the defendant, arising upon his liability as a stockholder, is not affected by the Bankrupt Law.

Another reason for excluding the defence is that the suspension of the right to prosecute the bankrupt is only until the question of his discharge shall have been determined. ^

Now, as it is expressly provided that no discharge shall be granted to a corporation, or to any person, officer, or member thereof (§ 37), the inhibition contained in the previous section would probably be inoperative.

There was no error in excluding the evidence offered.

The judgment and order should be affirmed.

Curtis and Sedgwick, JJ., concurred.


author: By the Court.—Curtis, J.

text:
    EDWARD HAIGHT, Plaintiff and Respondent, v. GEORGE MOORE et al., Defendants and Appellants.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.
    Roticb of Entby of Judgment, Sebyioe of.—What not Sufficient.
    1. A service by throwing it through a fan-light, or pushing it under the door, the door being looked and no one in the office, or by procuring a key, unlocking the door, entering, and placing the notice in a cohspicu!'ous place inside (there being no one in the office), is insufficient.
    2. Affidavit of service of, what insufficient.

    When the service is by leaving, during office hours, the notice in a conspicuous place in the office, no one being therein on whom service could be made, an affidavit setting forth these facts, without also showing that the office door was at the time open or unlocked, is insufficient.
    1. A motion to dismiss an appeal, on the ground that the notice of appeal was not served within thirty days after the service of notice of entry of judgment, will not be granted on an affidavit of the service of notice of entry of judgment which is defective in the above particular.
    Motion to dismiss an appeal to the General Term from a judgment entered upon the report of a referee.
    The facts sufficiently appear in the opinion.

      Edward M. Shepard, Esq., for motion.

      George J. Turner, for himself and defendant. Quackenbush, opposed.
   By the Court.—Curtis, J.

The motion is made on the ground that the notice of appeal was not served until the day after the expiration of the thirty days within -which the defendants could appeal after the written notice of the judgment had been given them, pursuant to section 332 of the Code.

It is claimed that the notice of judgment was served on the appellants the 29th of July, 1873. The defendant’ s time to serve a case and exceptions was extended by various consents until September 8th, when defendants served their proposed case. August 29th the defendants served their notice of appeal, which was returned to them August 30th, as having been served “too late.”

The affidavit of the defendants’ attorney denies that notice of the entry of the judgment was served personally upon him on the 29th of July, 1873, and alleges that as he is informed and believes, a notice of that character was found in his office after that day, among miscellaneous papers, which, if left on that day, must have been thrown through the fan-light above the entrance to his office, after it was closed for the day and found by the janitor of the building, and then denies that such notice was received by deponent through the mail or served at his residence or otherwise than as above stated.

On referring to the affidavit of the person who it is claimed served the notice of entry of judgment on the -defendants, it appears to be rather loosely expressed. It describes the paper served as “the foregoing notice of appeal,” and as being served July 29th, 1873, five minutes before four o’ clock p.m., on defendants’ attorney, by leaving a true copy in a conspicuous place in his office, he being absent at the time, and there being no person there. A notice of the entry of judgment precedes this affidavit. The affidavit does not state whether the office of the defendant was open at the time of such service. It was stated on the argument that this affidavit could not be amended, by reason of the absence of the person making it.

The law does not intend that a party shall be deprived of Ms right to appeal without being apprised of it. He has thirty days in which to take his appeal after-written notice of the judgment “ shall have been given ” him. The courts have held that this requirement of section 333 of the Code, calls for an adherence to strict rules and practice. Ho vague, or implied, or oral notice or imperfect service of notice should take effect to divest a party of a right that may be of the utmost importance (Yorks v. Peck, 17 How. P. R. 192; Fry v. Bennett, 7 Abbott P. R. 352).

The provision of the Code (§ 409) respecting service of notices upon an attorney, requires service at the attorneys’ residence when his office is not open so as to admit of such service. This is in accordance with the practice which prevailed before the adoption of the Code, where it was held that putting a paper under the door when the office was shut and locked, or unlocking the door and leaving the paper in the office, was not a good service (Norton v. Pray, 2 Wen. 626; Anon, 18 Wen. 578; Campbell v. Spencer, 1 How. P. R. 199). The language of this provision of the Code appears to have been taken in this respect from the rules of the Supreme Court formerly in force. In the 18th Wen. (578), Judge Brohson defines that the service of papers by leaving in a conspicious place in an office “clearly contemplates a case where the office is open.”

It is clear that if the notice was served by being thrown through the fan-light over the office door, as claimed by the defendants’ attorney, it was not such a service as accords with the practice and the provisions of sections 333 and 409 of the Code. But whatever may have been the manner in which this notice of entry of judgment may have been served, there fails to appear that satisfactory proof of service that justifies the holding that the defendants had lost their right to appeal .at the time when they served their notice of appeal.

The motion to dismiss the appeal should "be denied, with costs of motion to the defendants to abide the event.


text:
    SUSAN ALLEN, Plaintiff and Respondent, v. TERENCE R. REYNOLDS et al., Defendants and Appellants.
    Before Monell, Van Vorst, and Sedgwick, JJ.

      Decided November 29, 1873.
    Married Women.—Acknowledgment of Deeds by.
    1. Act of 1849, chap. 375, as affected by act of 1860, chap. 90, and act of 1863, 'chap. 173.
    1. Since the act of 1849, the acknowledgment of a married woman need not state that she on a private examination, separate and apart from her husband, executed the instrument freely and without any fear or compulsion of her husband.

      а. The effect of the act of 1849 was to repeal the provision of the Revised Statutes which required married women to acknowledge an instrument in the above manner, and that such manner of execution should appear by the commissioner’s certificate of acknowledgment.
    б. Acts of 1860 and 1863. These acts neither singly nor taken together repeal the act of 1849, or impair its efiect in this regard.
    Appeal from an order made at Special Term directing that a purchaser of certain lots of land at a foreclosure sale complete his purchase.
    The facts sufficiently appear in the opinion of the Court.

      A. Cardozo, for appellant.

      A. H. Wagner, for respondent.
   By the Court.—Curtis, J.

The purchaser objects to the title, on the ground that. Mrs. Marie Alger, a married woman, was not divested of her' estate in the land by an intermediate conveyance executed November 27th, 1872, but which she did not “ on a private examination, separate and apart from her husband, acknowledge to have been executed by her without the fear or compulsion of her said husband.”

The objection is urged upon the ground that the act of 1849, authorizing a married woman to convey real estate “in the like manner” and “with the like effect as if she were unmarried,” was repealed by the provision in the 3d section of the act of 1860, that no such conveyance, with certain immaterial exceptions, “shall be valid without the assent in writing of her husband.”

It is further urged, as an indication that it was the intention of the legislature to repeal by the act of 1860 the provision of the act of 1849, that in 1862 it amended the act of 1860 by restoring the words “with the like effect as if she were unmarried,” and which were in the act of 1849, omitting the words, “in the like manner,” which were also in the act of 1849.

Under the common law, a wife could only convey her own inheritance by joining with her husband in a fine, and it must appear upon her examination to be voluntary and free from constraint, and then, if she were of age, the fine bound her as if she had been sole (1 Bac. Air. 304). As a matter of convenience a system grew up in the colonies of a wife conveying her real estate by joining in a deed with her husband. This seems to have been supported upon the ground of usage and custom, and the maxim communis error facet jus.

The Colonial Act of 1771 (611), confirms these conveyances, and incorporates in the statute the requirement of the common law when the wife joins in a fine, by directing that thereafter the officer taking the acknowledgment shall set forth in his certificate that the wife had been privately examined, and confessed that she executed the deed freely, without any fear or compulsion of her husband.

This has remained substantially the law in this State, until, in 1849, the legislature authorized married women to convey “in the like manner” and “with the like effect” as if they were unmarried. In Wiles v. Peck (26 N. Y. 46), Judge Selden thought that if the question had been then first presented, he would be inclined to hold that the act of 1849 had not repealed the pre-existing statutes respecting acknowledgments by married women, on the ground that there was no express repeal, and a repeal by implication is never held to take place where both acts may stand together. But he adds that the contrary has been held, and it is too late now to question that conclusion involving many titles (Blood v. Humphrey, 17 Barb. 660 ; Andrews v. Shaffer, 12 How. 441; McIlvain v. Kadel, 3 Robt. 434 ; Yale v. Dederer, 18 N. Y. 271). The learned judge seems to recognize and acquiesce in that benignant interpretation and construction of the statutes respecting the acknowledgments of conveyances, which the courts, both of the Province and State of New York, have been inclined to make, so as to avoid the disturbance of titles (Preamble Act, 1771; Jackson v. Schoonmaker, 2 John. R. 234; Jackson v. Gilchrist,15 John. R. 114).

There appears to be no decision directly affecting the question raised in the present case by the appellants, and there are certainly no precedents requiring any forced or constrained interpretation of the act of 1860, especially one that would tend to disturb probably many titles.

The act of 1860 makes no reference whatever to the act of 1849. It is entitled differently, and makes no change in the law of 1849 in respect either to the form of the conveyance by a married woman, or as to the manner of its acknowledgment. It requires the assent in writing of the husband to the conveyance as essential to its validity. It might have required also, as in some of the States, that it should have two subscribing witnesses, and be left for record. But though it is in the power of the legislature to make all these conditions essential to its validity, it is not to be inferred by a court that the legislature intended, by imposing any such conditions, to thereby revive a statute requiring a special form of acknowledgment of such a conveyance, that had been for many years repealed and so held by an unbroken chain of decisions.

There is nothing in the act of 1860 that shows even any latent intention to change the manner of the acknowledgment of this class of conveyances. Our local laws for more than a century, in respect to the execution of deeds, have been simple, clear, and specific, and intended for the ready comprehension of every class of persons. It would be very undesirable to exercise any ingenuity ,to discover and give effect to an implied intention that would be oppressive and disastrous. But there is nothing on the face of the act of 1860, or otherwise, that discloses any disposition or intent by its passage to affect the acknowledgment of conveyances as authorized by the act of 1849.

The invariable rule of construction is, that the earliest act remains sin force unless in the latest act some express notice is taken of the former plainly indicating an intention to repeal it. The courts are bound to uphold the prior law if the two acts can be construed together (Bowen v. Leak, 5 Hill, 223). No difficulty exists in construing the provisions of the acts of 1849 and 1860 together, as far as the form of acknowledgment is concerned, on account of any repugnancy between them, and nothing thus far calls for a construction on the part of the court favorable to the views urged by the appellants. i

It now remains for us to consider the effect of the act of 1862, which declares that a married woman may convey her real estate “with the like effect in all respects as if she were unmarried.”

If we look at the title of the act, it will "be seen that it is simply amendatory of the act of 1860. Neither the title of the bill nor any of its provisions indicate any intention to change or affect the form of acknowledgment established and recognized as authorized under the act of 1849. The manner of the acknowledgment of a married woman having been established under the act of 1849, and remaining unaffected by the act of 1860, it was unnecessary for the legislature to re-enact or legislate upon the subject further, and they consequently very properly omitted the words “inlike manner ” from the act of 1862 ; it was manifestly their intention not to interfere with the established mode of acknowledgments either by the acts of 1860 or 1862. It is just and reasonable to conclude that if they had intended to make any change they would have given some notice of it, and not left it to be sought for by any deduction of ingenious inference or obscure implication.

The order appealed from should be affirmed, with costs.


text:
    MARSHALL S. P. POLLARD, Plaintiff and Respondent, v. HERMAN ROCKE, Defendant and Appellant.
    Promissory Note.—Negotiable Paper.
    1. Principle, that where a note has been stolen, or obtained by fraud or duress, or fraudulently misapplied or diverted, the holdei', in order to recover, must show that he is a boná-Jide holder for value,

    HAS HO APPLICATION
    where the defendant (being the maker) defends on the ground that the note was given to A. for the purchase-money of certain property sold byA. to him, which A. represented belonged to himself, but which did not in fact belong to A., but belonged to B., for whom A. was acting as agent, and that A. had fraudulently and wrongfully passed the note to the plaintiff.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.
    The action was upon a promissory note made "by the defendant and payable to the order of one J. T. Miller, who, it was alleged had before maturity, and for a valuable consideration, endorsed it to the plaintiff.
    The defendant denied that the plaintiff received the note before maturity or for a valuable consideration, and alleged that it belonged to said Miller. That the note was given to Miller in part payment for certain malt sold by Miller to the defendant, and which malt Miller represented belonged to him. That the malt did not belong to Miller, but belonged to one Ernst, for whom Miller was acting as agent, and that the plaintiff had full knowledge of all these facts when he received the note.
    The defendant testified that he purchased the malt of Miller, giving the no,te in suit for a part of the price. He supposed the malt was Miller’s. Afterwards Ernst claimed the malt belonged to him. The latter testified that the malt belonged to him; • that Miller was his agent for its sale. He was asked, “What was he (Miller) to do with the proceeds of the sale of the malt?” He answered, “ He was to return it to me after he had collected it.” Q. “After he had sold it?” A. “After he had sold, and coEected the money.’ ’
    There was no evidence impairing plaintiff’s claim to. be a ~bona-ftde holder. The court directed a verdict for the plaintiff, and the defendant excepted and appealed from the j udgment.

      George Carpenter, of counsel for appellant, urged:
    To recover on a note which has been lost, stolen, or fraudulently misapplied or diverted, or to which the transferrer has "by reason of fraud no title, the holder is "bound to show affirmatively, upon such facts being established; first, that he received the note in the usual course of his business, or gave full value; and second,. in good faith, and without knowledge of the facts.
    It must also appear that there were no circumstances which ought reasonably to have put him upon his inquiry (Bailey v. Bidwell, 13 Mees, and Wes. 73; approved in Smith v. Braine, 3 Eng. L. and Eq. 379, and in Hassey v. Tomes, 4 Id. 531; see also Case v. Merchants B. A., 4 Comst. 166, and end of p. 168 ; Farmers & C. N. B. v. Noxon and al., 45 N. Y. 762, 765; Edwards on Bills, 319; Wardell v. Howell, 9 Wend. 170).
    For aught that appears, plaintiff may have been perfectly cognizant of all the facts, and taken the note with full knowledge, and simply to cover up the fraud of Miller.
    If plaintiff had knowledge of the facts and the fraud of Miller, then he is only an accomplice of and in • privity with Miller, and could not recover upon the note, any more than Miller could if he had not transferred it.
    If plaintiff had no knowledge of the fraud of Miller, and received the note in good faith, and gave value for it, it would have been a simple matter for him to have proved it.

      Stephen D. Stephens, attorney, and of counsel for respondent.
   By the Court.—Monell, J.

This was at most, I think, a case of mistaken confidence. Miller was entrusted to sell the malt and collect the price of the sale. He was bound to account for such price to his principal. Having failed to do so, it seems to me the latter alone must suffer. There was nothing in the facts disclosed by the evidence bringing the case within the principle, that when a note is procured by duress or fraud, the burthen rests upon the holder tó show title. In that class of cases, the maker having shown that the note was obtained from Mm by frand or duress, he is in a position to call on the holder to establish the bona-fide of his possession.

In this case there was no pretence that the note had been procured- from the defendant in any improper manner. It was merely attempted to show that Miller, the agent, had cheated, or was endeavoring to cheat, hi s' principal. The defendant had purchased the malt, and his note was for part of the price; and he cannot claim that because Ernst was the principal and the owner of the malt, it is a defence to his note. Miller’s authority to sell and collect covered, certainly as to other persons, authority to sell on credit and to take notes in payment.

The plaintiff was presumptively the bona-fide holder of the note, and nothing was shown removing such presumption, so as to put any burthen on him of strengthening his title.

The judgment is correct and should be affirmed.

Curtis and Sedgwick, JJ., concurred.


text:
    JOHN KELLY, Plaintiff and Appellant, v. THOMAS H. WEST et al., Defendants and Respondents.
    Tekdeb befobe Suit.
    1 Effect of.

    1. A good and sufficient tender before suit brought does not bar a recovery for the principal of the demand, and interest thereon, to the time of tender.

      Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.
    1. This is so, although the money tendered has been kept ready for the plaintiff ever since the tender, and was offered on the trial to be produced in court and paid over to the plaintiff.
    But,
    2. It does bar the recovery of all interest subsequent to the tender, and all costs, and entitles the defendant to recover costs.
    2. What is btfore suit.

    1. A tender on the day of the signing of the summons, but before its service, is before suit brought.
    Appeal from a judgment entered upon a verdict for the defendants by direction of the court.
    The facts .sufficiently appear in the opinion of the court.

      Weeks, Forster & De Forest, attorneys, and of counsel for appellant.

      J. H. and W. L. Vanduzer, attorneys, and of counsel for respondents, urged:
    The plaintiff receiving an answer of. tender before suit brought, waives the objection that the defendant has not brought the money into court by going to trial upon the issue ; and if the money was so tendered before suit brought and afterward kept in readiness for plaintiff, and actually brought into court on the trial, the judgment must be for the defendant.
    (a) . The answer alleges tender.
    (b) . The plaintiff went to trial on the issue.
    (c) . The money has been kept in readiness ever since, and actually brought into court on the trial (Knight v. Beach, 7 Abb. N. S. 241; and cases cited; Gould v. Banks, 8 Wendell, 567 ; Carman v. Pultz, 21 N. Y. 549).
   By the Court.—Curtis, J.

The plaintiff sues to recover the proceeds of a consignment of peaches to the defendants for sale. The defendants answer that they have tendered the plaintiff the amount of such proceeds after deducting the usual and ordinary commissions and expenses. The evidence showed that the defendants were entitled to the sum they claimed for commissions and expenses, and that on the day the summons bears date, and four days before its service, 'they offered to one of the plaintiff’s attorneys, at their office, in legal tender, the balance due the plaintiff, which the plaintiff’s attorney declined to accept, and he was thereupon notified that the money was ready for the plaintiff at any time he wished to have it, and that it had been ready ever since. On the trial the defendants’ counsel offered to produce the money now in court.

The question arises whether the tender made was sufficient to prevent a recovery by plaintiff. This was not a statutory tender, for that can only be made after the action shall be commenced (2 R. S. 554, § 20). The present action was not commenced when the tender was made. The signing of the summons on that day was not a commencement of the action (Code, § 99 ; Kerr v. Mount, 28 N. Y. JR. 659).

Consequently the tender can only take effect as a common-law tender, the effect of which is simply, “ that “ if the plaintiff does not accept the money, and on the “trial the defendant establishes his defence of tender, “then such defence bars the recovery of all interest “subsequent to the tender, and all costs, and entitles ‘ ‘ the defendant to costs, and does not in any event bar “ a recovery of the principal amount due, with interest ‘£ to the day of tender.’ ’ if"otwithstanding any confusion there may have been in decisions elsewhere, the courts in this State have uniformly held, that where a debt exists, a tender of the money, though it be refused, does not extinguish the debt, but only goes to the question of interest and costs (Weston y. Barker, 12 John R. 276 ; Wolcott v. Van Santvoord, 17 John. R. 253 ; Caldwell y. Cassidy 8 Cow. 271; Brown v. Furguson 2 Denis. 179; Hill v. Place, 36 How. P. R. 26, affd. at Gen. T. ; Knight v. Beach, 7 Abb. N. S. 249).

It was error in the court to hold that the establishment of the defence of tender barred the plaintiff’s right to recover the principal amount of his debt, and to direct the jury to find a verdict for the defendants.

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


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

text:
    THE RECTOR, etc., of the CHURCH OF THE REDEEMER, Plaintiff and Respondent, v. JAMES T. CRAWFORD, Defendant and Appellant.
    I. Execution against the Pebson.
    1. When not authorized.

      a. When there has been no order of arrest granted, and the complaint is in, or substantially in, the form of the one set forth in the statement of the case.

      b. Conversion, averment of.

    1. Such averment must be construed in connection with the other averments in the complaint. As so construed in this case,
    Held,
    Not to be an additional fact, which changed the character of defendant’s liability as otherwise stated in this complaint.

      2. What may be considered on motion to set aside.

    1. The character of the complaint only,
    except in a case
    where the plaintiff has not attempted on the trial to prove those matters which give the complaint that character which justifies the issuing an execution against the person, although no order of arrest be made.

      Before Curtis and Sedgwick, JJ.

      Decided November 29, 1873.
    Appeal from an order.
    This is an appeal from an order denying a motion to set aside an execution against the person.
    The summons in the action was for a money demand on contract.
    The complaint was as follows :
    “That the plaintiffs are a religious corporation, “ created by and under the laws of this State. That on “or about the 29th day of April, 1859, the defendant “was duly elected treasurer of the Church of the Re- “ deemer, the plaintiffs in this action; that thereupon “the defendant accepted said office of treasurer, and “continued to act as such treasurer, until on or about “ the 17th day of April, 1860. That during the time the “defendant continued to act as such treasurer, he re- “ ceived, among other moneys, the sum of five hundred “ and twenty-four dollars, moneys donated and collected “for the Sunday-school of the Church of the Redeemer, ■ “andbelonging to the plaintiffs herein. That said sum “of five hundred and twenty-four dollars was duly “ demanded of the said defendant by the plaintiffs, on “ or about the 16th day of May, 1863. That said money “ still remains in the hands of the said defendant, upaid, and he refuses to pay over the same, or any ‘ ‘ part thereof, to the plaintiffs, and, as plaintiffs are informed and believe, has converted the same to his own “use.
    “ Wherefore, the plaintiffs demand judgment against said defendant for the sum of five hundred and twenty-four dollars, together with the interest thereon, from “the first day of January, 1860, together with the costs “ of this action.”
    The defendant, by his answer, denied that, during the time he acted as treasurer of the Church of the Redeemer, he received the sum of five hundred and twenty-four dollars mentioned and referred to -in the complaint, and denied that said sum was moneys donated or collected for the Sunday-school of the said church or belonged to the plaintiffs, and denied that said sum of five hundred and twenty-four dollars was ever duly demanded of him, or that he had converted the same to his own use.
    He then set up as a further answer, that at the expiration of his term of office as treasurer of the said church, and on or about the first day of June, 1860, his accounts as such treasurer were duly examined and audited by the financial committee of said church, and the balance found due to the plaintiffs on such accounting and final settlement, to wit, the sum of nineteen dollars, paid over to the plaintiffs ; and he averred that he had paid out and duly accounted for all moneys ever received by him as treasurer of said church.
    By his supplemental answer, defendant alleged :
    That the sum of five hundred and twenty-four dollars, mentioned and referred to in the complaint, was collected and donated for the specific purpose of erecting a parish school-house, including a small free chapel for missionary services, and was held by the defendant for that purpose, and no other.
    That said purpose had been abandoned, and the defendant had returned a large portion of said moneys to the original donors of the same, and had expended another portion thereof in protecting the said fund; and that he now has in his hands of the said moneys, a sum not exceeding two hundred dollars.
    Final judgment was entered against the defendant for :$1602.69. An execution against property was issued, and returned unsatisfied, and then an execution against the body of defendant was issued, upon which the person of defendant was taken.

      No order of arrest had been granted,
    The following opinion was delivered at a Special Term by the learned judge (Mohell).
   Monell, J.

It is claimed in support of the execution in this case, that the complaint contains a statement of facts showing one of the causes of arrest required by section 179 of the Code, and is, therefore, within, the provisions contained in section 288.

The construction of the latter section is, that where the substantive cause of action is such that the defendant may be arrested, the complaint will necessarily state the facts essential to an arrest (Atocha v. Garcia, 15 Abb. 303). In other words, where the cause of the arrest is identical with the cause of action, the complaint will necessarily state facts showing the defendant is liable to arrest (Wood v. Henry, 40 N. Y. R. 124). It is only where the cause of arrest forms no proper part of the cause of action, and cannot properly be stated in the complaint, that a preliminary order of arrest is required to secure an execution against the person after judgment (Elwood v. Gardner, 45 N. Y. R. 349).

If, therefore, the facts stated in the complaint in this case as constituting the cause of action were such that, by themselves, the defendant was liable to arrest, then the execution was regular.

The 179th section of the Code provides that a defendant may be arrested in the following cases :

1. In an action on a cause of action, not arising out of contract, where, etc.

2. In an action for the recovery of money received * * * by an officer or agent of a corporation * * * in the course of his employment as such. * * *

The cause of action stated in the complaint is precisely within this latter provision. It is for money received by the defendant as the treasurer of the plaintiffs’ corporation, in the course of his employment as such treasurer; and the only questions litigated on the trial were, whether the money which the defendant admitted he had received "belonged to the corporation, or was the property of the donors to the fund. See this case on appeal, 5 Robt. 100, and in Court of Appeals, 43 N. Y. R. 476. The latter court, in reversing a former judgment of this court, put its decision wholly upon the ground that the proofs established that the money was the property of the church, and had been received by the defendant as its treasurer. The gravamen of the action, therefore, was the alleged relation of officer to the corporation. If the defendant was such officer, and he received the plaintiffs’ money, he was liable. The receipt of the money was conceded; but all liability was denied on the allegation that the defendant had not received it as treasurer of the plaintiff, or in the course of his employment as such, but as the custodian of the donors. That issue, therefore, became the essential part of the case, and no recovery could have been had without establishing that the money was the property of the church,1 and had been received by the defendant in his official character of treasurer ; a simple action for money had and received could not have been maintained, because it was necessary to prove, and therefore to aver, that it was received by the defendant as the plaintiffs’ treasurer, and in the course of his employment as such.

This case is clearly distinguishable from Wood v. Henry (supra), so confidently relied upon by the defendant’s counsel.

In that case the allegations in the complaint were, that the defendants were commission merchants; that the plaintiffs employed the defendants to sell certain merchandise upon commission; that the defendants sold the same and received payment therefor, and that the balance of the sum received (after deducting commissions) became due and "payable, but that no part had "been paid. No order of arrest had been obtained, and judgment was taken by default.

The motion was to set aside an execution against the person.

The court admitted that where the cause of action is such that an order of arrest might be granted without proof of any extrinsic fact, that an execution might go against the person of course; and that it was only necessary where the cause of arrest was not identical with the cause of action that a previous order should be obtained. It was further admitted that in some of the cases mentioned in section 179 of the Code, the cause of arrest and of action are identical, and no pre- / vious order would be necessary. This is to be tested by the statement of facts.

If such statement shows one or more of the causes of arrest, ‘ ‘ then the cause of action and of arrest are identical,” and the judgment establishes conclusively a liability to arrest, and execution against the person follows. But the court holds, in effect, that the allegations in the complaint of a liability of the defendant, created while acting in a fiduciary capacity, formed no necessary or even proper part of the cause of action.

The debt was the gravamen of the action, and not the breach of trust. The court say “the defendants may not be able to deny that they owed the money, or that the indebtedness was the receipt of moneys arising from the sale of the plaintiffs’ goods, and yet they may be quite able to show that they were not commission merchants, or that the circumstances under which they acted did not establish any fiduciary relation between them and the plaintiffs but the relation of debtor and creditor merely. ’ ’ In this view, no possible defence could have changed the result. Admitting the debt, the defendants could not demand a trial to determine whether they were commission merchants, or whether the relations were of a fiduciary nature, when there must necessarily have been a judgment for the debt.

Where, therefore, the debt is the gravamen of the action, and not the circumstances under which it was created, it became a necessary part of the complaint to state the relation of the parties only for the purpose of obtaining an order of arrest.

This, of course, has no effect upon the cases where the cause of arrest is a necessary part of the cause of action. In those cases the issue to be tried involves and includes the very facts upon which the arrest depends, and must bé determined in the trial of the issue, and, if determined against the defendant, it brings the case within the construction of the latter part of the 288th section of the Code, authorizing “an execution against the person where the complaint contains a statement of facts showing one or more of the causes of arrest, required by section 179,” namely, that such facts must constitute the gravamen of the action.

The decision in Wood v. Henry would seem to be difficult of reconciliation with the letter of the statute.

The defendant may be arrested—

1. In an action for the recovery of damages on a cause of action not arising out of contract, etc., and,

2. In an action for money received * * * by any factor * * * or other person in a fiduciary capacity. * * *

It is true, as the court say, the action is for the recovery of money, but it is to recover it of a person who received it in a fiduciary capacity; and are not, therefore, the relations of the parties a part of the cause of the action as much so as are the allegations of fraud a part of the complaint, when the action is for fraud, although it was committed in contracting the debt, and the recovery can be only of the debt ?

But, as a decision, it goes no farther than to hold that when the debt is the substantial cause of action, all other allegations, although necessary for the purpose of • a primary arrest, may, after judgment, be regarded as not forming any necessary or material part of the cause of action. That case, therefore, is an authority upon such a state of facts only, and .has no application to a case like the one now under consideration.

In the case of Elwood v. Gardner (supra), a more recent case than Wood v. Henry, a substantially similar construction is given to the 288th section.

In that case the action was for fraud, in falsely representing the solvency of the maker of a promissory note, of which the defendant was the endorser. An order of arrest had been obtained. On the trial the plaintiff abandoned the cause of action for the fraud and took judgment upon the liability as endorser. An execution against the person was set aside. The court say, in substance, that if the plaintiff had not withdrawn his claim for fraud, and had succeeded, he would have been entitled to a personal execution, as of course. But by withdrawing that cause of action, he left it a mere action on contract.

The meaning of the section, the court say, is, that the statement of facts must be such as are proper and necessary to b<d proved. They must be pertinent to the cause of action. If they are not, then they are to be regarded as immaterial and improper.

The principle determined by this case is the same as was decided in Wood v. Henry, and they fully establish the distinction which brings the present case within the 288th section.

The conclusion, therefore, is, that in this case the statement of the facts, as well as the issues which were tried, brought it within the authority to issue an execution against the person of the defendant, notwithstanding no previous order of arrest had been obtained.

The motion to set aside the execution must be denied, with costs.

James K. Hill, attorney, and of counsel for appellant.

E. J. Patterson and C. M. Marsh, of counsel for respondent, urged:

1.—(a.) The case is clearly distinguishable from the case of Wood v. Henry, relied on below. A complaint could not be drawn which would be “a plain and concise statement of facts,” which would not set forth the cause of arrest.

(5.) An illustration of the difference could not be offered, which would be clearer than that presented by the facts in this case. The very ground-work of that decision was that the facts which constituted the cause of arrest could not be tried in the action (40 N. Y. at p. 128). How in this case, it was admitted that the defendant had received this money at a time when he was the treasurer of the corporation, and the only question at issue was, Did he receive it as the treasurer of the plaintiff % If this were decided in favor of the plaintiff, the right of action and the right of arrest were made out. If it were not so proved, the entire cause of action must fall. The question thus raised was the turning-point of a long and closely fought litigation, and it would now be the height of absurdity for the court to hold that because in the case of Wood v. Henry, the Court of Appeals held that when the facts which gave the right to arrest could not be litigated on trial, an execution against the person would not issue, that therefore here, where the very facts hate been litigated on the trial, the execution against the person must be set aside.

(c.) If this court deem that the facts proved on the trial are material upon this motion, as seems to have been held in the case of Elwood v. Gardner (45 N. Y. 349), then this order must be affirmed, for defendant’s own affidavit says that “it is for moneys had and received,” which it has been decided were for the use of the plaintiff—in other words, which it had been decided were received by the defendant in a fiduciary capacity.

2.—But in reality, this action proceeds one step farther than was necessary to give a right of arrest under the second subdivision. It alleges a conversion of this money by defendant, making a case under the first subdivision.

(a.) This charge thus made is no immaterial allegation. It is put in issue by the answer, and must have been de- . cided in favor of the plaintiff.

It is undisputed that the defendant received this money, and it is undisputed that he was treasurer of the plaintiff when he so received it. The question 1 ‘ Did the money belong to it? ” the first question in the case, being decided in its favor, then the defendant, having-neglected to pass it over to its credit, is liable for this conversion (Coit v. Stewart, 50 N. Y. 17 ; Gordon v. Hostetter, 37 N. Y. 99).

That case was an action for conversion of money. Defendant had been a clerk in plaintiff’s employ, had sold goods and received the money, which, instead of putting- into plaintiff’s drawer, he had kept. There was no proof of property, except defendant’s admission of amount he had kept. Held, an action of conversion would lie. \

This case is much stronger. The defendant, when he received .the money, received it for the corporation. He was the only party who could represent them in tills receipt. When he got the money it belonged to the corporation—in fact, it, was paid into it—but the defendant diverted it from its legitímate uses, and converted it to his own use, and the allegations in that respect contained in the complaint are at once both material and true.

(5.) That this complaint is sufficient to make an action for conversion, see Eider v. Whitlock (12 How. Pr. R. 209), and that an execution issues in such case after judgment and no order of arrest issued, see Richtmeyer v. Remsen (38 N. Y. 206).

By the Court.—Sedgwick, J.

I reluctantly differ in opinion from the learned judge, who denied the motion to set aside the execution against defendant’s person, no order of arrest having been granted. On such a motion, no extrinsic facts may be viewed, and the right to issue an execution against the person depends solely upon the character of the complaint, except in a case where the plaintiff has upon the trial not attempted to prove those matters which give the complaint that character which justifies the issuing of an execution against the person, although no order of arrest be made (Elwood v. Gardner, 45 N. Y. R. 349). In this case for the plaintiff, it is urged that the execution is supported because, 1st, the complaint states a cause of action for money received by the defendant as treasurer of the plaintiff in the course of his employment as such ; 2d, because it stated a conversion by defendant (Code §§ 179-288). I cannot see that the complaint in any mode, precise and technical, or otherwise, alleges that the money sued for was had and received by the defendant as treasurer in the course of his employment as such. The complaint states that the defendant was treasurer during a specified period, and then “that during the time the ‘c defendant continued to act as such treasurer, he re- “ ceived among other moneys the sum of five hundred ‘ ‘ and twenty-four dollars, donated and collected for the “ Sunday-school of the Church of the Redeemer, and “ belonging to the plaintiffs herein,” that said money was.demanded of defendant, “and he refuses to pay “over the same, or any part thereof, to the plaintiffs, ‘' and as plaintiffs are informed and believe, has converted “ the same to his own use.” Clearly there is no averment here that the moneys donated for the Sunday-school were received by the defendant in the course of his employment, or in the performance of his duty, as treasurer. He might have received such moneys, and be liable therefor in an action, and yet-it be none of his duty, or not within the scope of his employment to receive them.

I cannot distinguish Wood v. Henry (40 N. Y. R. 128) from the present case. In that case the court said in substance that there were averments in the complaint, independent of, and separate from, all the averments relating to the fiduciary position of the defendant, that the former, the defendant, might not be able to deny, and yet that a denial of latter would not make any issue upon which a trial could be demanded. So in this case, every averment that the defendant was treasurer, when he received the money, might be denied by the defendant, yet if he did not deny that he received moneys of the plaintiff, which he had refused to pay over, judgment would be given against him on the pleadings. Indeed, it seems tome that in Wood v. Henry, the averments that the defendant in doing the things which made him liable, acted in a fiduciary capacity, were much more precise land significant than these in the present case, which say that during the time he was treasurer, the things occurred which made him liable. In Wood v. Henry, the Court of Appeals made it the test, whether there was enough in the complaint to justify a judgment, irrespective of those averments which sought to allege that the defendant acted in a fiduciary capacity. The result would have been the same if the latter averments charged enough to justify a finding by a jury, that the indebtedness was contracted by defendant in his fiduciary relation. The commission of appeals in Prouty v. Swift (51 N. Y. R. 601) say that in Wood v. Henry it was settled that the character or nature of defendant’s employment was not an issuable fact. This was said in a case in which the complaint demanded judgment that the defendant be adjudged liable for moneys received in a fiduciary capacity, and the referee had found such to be the fact. I think that the two cases cited require that the execution herein he set aside, unless the other view is sound, that the complaint states a case of conversion against the defendant. To satisfy section 179, the action must "be for wrongfully taking, detaining, or converting property. The action must "be for the tort. The summons in this action shows that the plaintiff elected to "bring an action for "breach of contract, "but that is not decisive of the point. I think if the rule of Wood y. Henry were again applied, it would have to "be said the allegation of the conversion in the present case was not traversable, or rather that an issue upon it would be immaterial, if the rest of the complaint were proven or admitted. Beyond this, however, Austin v. Rawdon (44 N. Y. 63) must be applied. There the complaint set out that a special agreement was made that the defendant would deliver certain securities which had been placed in his possession, that demand therefor was made, and that defendants wrongfully refused to deliver them but wrongfully disposed and converted them to their own use. It was held that the action was for the breach of the contract, and the allegation of the conversion was a mode of stating that breach. So in this case, the complaint in substance first charges that the defendant had and received money for the use of the plaintiff (which creates an obligation in the nature of a contract), and although the same was demanded of the defendant, he refused" to pay, but converted it to his own use. Such an allegation of conversion is but a statement of the construction the law would put upon a refusal to pay on demand, and is not an additional fact, which changes the character of the defendant’s liability as otherwise stated by the complaint. Connaughty v. Nichols (42 N. Y. R. 83) is in principle in accord with Austin y. Rawdon.

The order appealed from is reversed, with costs.

Curtis, J., concurred.


author: By the Court.—Sedgwick, J.

text:
    CHARLES S. GOODRICH, Plaintiff and Respondent v. DANIEL SWEENY, Defendant and Appellant.
    I. Contract por Sale and Delivery op Goods, Payment to be made on Delivery.
    1. Breach of.

      a. Vendor not liable for non-delivery unless vendee has properly tendered or offered performance on his part.
    2. Tender or offer of performance by vendee, what is not necessary, and what is.

    1. It is not necessary that he should produce and tender the money.
    But,
    2. If he does not produce the money, but merely offers to pay on delivery, stating his readiness and ability so to do, he must go farther and show facts confirming the truth of his statement.

      a. His mere statement that^he would pay or was able to pay is not of itself sufficient.
    3. Excuse for not tendering or offering performance by vendee, what does not furnish.

      a. A statement by the vendor before the expiration of the time for delivery to the vendee, in response to a request to hurry up the delivery, that he was unable to get the goods, does not furnish such excuse.

      b. A statement made by the vendor after the expiration of the time for delivery to the vendee, in answer to the demand of the vendee’s agent for a delivery, that he was unable to obtain the goods, at the same time expressing doubts as to the vendeds credit, does not furnish such excuse.
    H. Motion to dismiss Complaint.
    1. Where two grounds of dismissal are contained in the same sentence,
    . but disjunctively, one bad and the other good, a refusal to dismiss the complaint is error, for which a new trial will be granted. And this, although the good ground was stated in very general terms.
    1. A dismissal was moved for on the ground that the defendant waste pay cash, and there had been no evidence that had offered to pay cash or had offered to complete the contract in any way.
    Held, ,
    That although the want of proof of an offer to pay cash was not in itself sufficient to1 call for dismissal, yet under the latter clause, the appellant might urge that what the defendant did, did not amount in law to an ofier of performance, and therefore, there being no evidence of the production and tender of the money, that the complaint should have been dismissed.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.
    Appeal from judgment.
    The plaintiff, through one Hazard, his agent, and the defendant, made a contract for the sale of three tons of carpet-rags at a certain price cash, deliverable between October 9th and the middle of December ; and by the contract, if the defendant had five tons of the rags, he was to “send them to be shipped” to the plaintiff. The plaintiff lived- in Rhode Island. The contract was made in this city, where the defendant lived and did business. The complaint demands damages for a breach by the defendant of the contract, in not delivering any of the property.
    On the trial, the plaintiff, to show that the defendant was in default on the contract, proved by Hazard that he, acting in behalf of Fisk, called at the defendant’s place of business previous to the middle of December, and was told by the defendant that he had not been able to get the carpets. Mr. Hazard said that Mr. Fisk had agreed for them, and needed and expected them, and suggested the shipment of what were on hand. Ho reason was at first given for not shipping the carpets but the defendant’s inability to get them. Subsequently, the defendant expressed doubts as to Mr. Fisk’s credit, and Mr. Hazard at once told him he would pay him on delivery, and would arrange with a good house in Hew York to pay him immediately on shipment, if Mr. Fisk or himself were not there. The witness said he was not able to state that what he had said occurred subsequently took place before the 2d of January, but that he was sure the offer of prompt payment as he had testified to it was made or reiterated on that 2d of January. He testified that on such last day he went to the defendant’s house and found him there, and told him that Mr. Fisk wanted the carpets; that the defendant again said he could not get them in sufficient quantity. The witness said that if the defendant would ship the lot which the witness had just seen at the defendant’s place of business, at the price agreed upon, Mr. Fisk would accept it in full of the contract, and the witness then offered to pay or arrange for the payment as before stated, but he could not prevail on the defendant to deliver or to ship. The offer was to pay whatever the bill of carpets should amount to under the contract. Ho money was presented at the time, but only the proffer of payment as before stated.
    When the plaintiff’s case closed, this was all the evidence that had been given to show that Mr. Fisk had done all that was required to give him an action for damages for defendant’s failure to deliver. The defendant made a motion for non-suit on two grounds, the second of which was: “That by the contract under which the plaintiff claimed, they were to pay the defendant cash for their carpets, and there had been no evidence to show they had offered to pay cash, or had offered to complete the contract in any way.”
    The motion was denied. Defendant then introduced evidence in support of his defence. Upon the close of the evidence, the case was submitted to the jury under a charge from the judge, and the jury rendered a verdict for the plaintiff.
    The defendant thereupon moved on the judge’s minutes for a new trial, which motion was denied.
    Thereafter judgment was entered upon the verdict in favor of plaintiff.
    Froin the judgment defendant appeals to the Ueneral Term.

      Thomas H. Hurley, attorney, and Albert Cardozo, of counsel for appellant, urged:
    I. What transpired between Hazard and Sweeney, taking the former’s version of it, was wholly immaterial.
    1. As to the interview previous to the middle of December.

      a. It does not appear how long previous to the middle of the month that interview occurred.

      b. It might have been shortly after the contract was made and when it could not be expected that the defendant would have the goods.

      c. He did not say he would not complete the contract, but only that he had not the goods then. That was no refusal and no breach.

      d. If he had then declared he would not be able to perform when the contract required, it would not be a breach (McDonald v. Williams, 1 Hilt. 365).

      2. The interview of January 2d was long after the contract had expired.
    II. To enable the plaintiff to recover, it was incumbent upon him to show that Fisk, at the time provided in the contract for its maturity, viz., the middle of December, was ready and willing to actiept and able to pay for the goods (Coonley v. Anderson, 1 Hill, 519 ; Vail v. Rice, 5 N. Y. 155; Bronson v. Wiman, 8 N. Y. 182).

      a. The evidence of Hazard, the only testimony even remotely bearing upon the subject, fails to establish this ; and at all events it relates to a period other than that fixed by the contract.

      b. There is no evidence of Fisk’s pecuniary condition.

      c. Ho proof that he did anything to put himself in funds to pay for these goods, or that he had the means to do so.

      d. The only proof on .that point is Hazard’s evidence, that he approved of Hazard’s “ offer of prompt payment and was ready to provide funds for the same.”

      How could Hazard swear to the conclusion that Fisk was ready to provide funds ? But at any rate, Hazard’s-offer, to which his testimony relates, was not made until January 2d, long after the contract had expired.

      e. Fisk in his complaint does not pretend that he was ready, willing, or ahle to receive and pay for the goods at the time designated in the contract.

      E. Terry, attorney, and of counsel for respondent, urged:
    (1.) When the contract is to deliver at a particular place, and "by a given day, specifying the price, "but no time of payment, the vendor must aver and prove that he was ready and willing to accept and pay (Ib. Vail v. Rice, 5 N. Y. 1 Seld. 155). Hazard said “ he would arrange with a good house in Hew York immediately on-shipment,” if Fisk or he was not there.
    This means whenever Sweeny was ready Fisk would pay, and Sweeny made no objection.
    (2.) The plaintiff could have done nothing fairer or fuller under the circumstances than he did in carrying-out the contract.
    (3.) “When the buyer sues for the seller’s breach of contract to deliver goods at a particular time and place, he must prove that he was ready and willing to pay for the goods, "but need not prove a tender or demand” (Vail v. Rice, 5 N. Y. 1 Seld. 155 ; Leaird v. Smith, 44 N. Y. 618).
    (4.) In White v. Demilt, (2 Hall Reps. 413), Oakley, J., says: “The actual making and tendering of the notes would have "been an idle ceremony when the defendant refused to deliver the goods. The payment, in the natural order of things, was to follow the delivery, and although it was to be simultaneous, it was not to "be completed until the goods were actually received ” (see also Dana v. Feidler, 1 E. D. Smith, 463).
    Affirmed on other points (12 N. Y. 2 Ker. 40).
   By the Court.—Sedgwick, J.

The contract contemplated that the delivery of the goods and the payment of the purchase-money were to be simultaneous. The purchaser was, in making demand of performance, to be in the situation required by law under such circumstances. It was not necessary that he should produce the money in case of the seller’s refusal to deliver. It was necessary, at the least, that sufficient evidence should have been given, that at the time of demand of performance he then had such means of procuring money as to make it a question for the jury as to his then being able to make the proper payment. The statement of the buyer that he would pay, or was able to pay, is not of itself sufficient for such purpose. Other facts must be shown, to confirm the truth of the statement ; e. g. in Bronson v. Winans, it was shown that the buyer had promptly met all demands on him, and had facilities for raising the required amount of money (Coonley v. Anderson, 1 Hill, 519 ; Bronson v. Winans, 8 N. Y. R. 188 ; Wheeler v. Garcia, 40 N. Y. R. 586 ; Currie v. White, 45 N. Y. R. 822 ; Delavan v. Duncan, 49 N. Y R. 487).

As the defendant had until the middle of December to perform the contract, what took place before that time is immaterial to the point. On the 2d of January, Mr. Fisk, through his agent, told the defendant that he would pay on delivery, and would arrange with a good house to pay him immediately on shipment, if Mr. Fiske , or his agent were not there; or, according to another version, the agent offered to pay, or arrange for the payment as before stated. Assuming that this was in due time under the contract, and that a demand of performance was made, still there was no testimony given as to the ability of Mr. Fisk or his agent to make the payment, or to raise sufficient funds, or even to arrange with a good house for the payment.

I think this was sufficiently pointed at in the ground which the motion for non-suit stated, that there was no evidence to show that the buyer had offered to complete the contract in any way. The substance of that was that he had not in any way done or offered to do what under the contract it was necessary for him to do or offer, to enable plaintiff to maintain the action. I am of opinion that the learned judge overlooked the correctness of the second ground, because of the prominence of the first and incorrect ground that it was necessary to offer to pay cash, which was not necessary, there having been some evidence of a refusal to perform.

For this reason the judgment is reversed, and new trial ordered, with costs to appellant to abide event.

Monell and Curtis, JJ., concurred.


text:
    JOHN H. HARNETT et al., Plaintiffs and Appellants, v. ISABELLA GARVEY, Defendant and Respondent.
    I. Attorney, Power of, to sell, assign, transfer, pledge, mortgage, lease, and convey, and to make contracts for the sale of all or any estate, etc., with the usual general power,
    DOES NOT AUTHORIZE
    the attorney to employ and advise with counsel relative to the principal’s, interests;
    IT ONLY AUTHORIZES
    the employment of counsel so far as may be necessary to prepare such instruments as the power authorizes the attorney in fact to execute.
    II. Ratification.
    1. What evidence of, sufficient to establish primó, facie.

    1. Evidence that the counsel or attorney at law employed by the attorney in fact presented his bill to the principal, and the principal having the bill before her, and having had it in her possession for some time, was told by the attorney at law that he had advised her attorney in fact in relation to her real estate and affairs, and she expressed approval and satisfaction in respect to the advice, and promised to pay the bill, and that three or four weeks afterwards she again promised to pay the bill, is sufficient.

      Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.
    1. When the principal has in his power ample means of ascertaining the facts, not only from his agent, but from the adverse party, the presumption of law is that he paid ordinary attention to his own afiairs, and had full knowledge of all the facts. A promise to pay, with such presumed knowledge, constitutes a ratification.

    2. Submission to jury.

    1. Evidence contradicting such evidence of ratification presents a case for the submission to the jury of the question of ratification.
    Appeal by the plaintiffs from a judgment.
    The facts sufficiently appear in the opinion.

      Dailey & Perry, for appellants.

      Gilbert & Smedley, for respondents.
   By the Court.—Curtis, J.

The plaintiffs sue to recover $2,854 upon an account for the services of the plaintiffs, as the attorneys of the defendant, in the preparation of various instruments, in counselling and advising in respect to her property, and for disbursements, the same being alleged to be in and about the defendant’s business. The answer admits that the plaintiffs paid out sums of money for defendant, and drew certain papers, and performed certain services for defendant, set forth in the plaintiffs’ account, a reasonable compensation for which would be the amount charged for the same in the plaintiffs’ account, $64.50, in all amounting to $104, but denies that the plaintiffs, or either of them, were employed as counsel for her, or in advising her.

The item in controversy in the plaintiffs’ account is as follows:

“December 30, 1871. To counsel fee in matter of consultation with your attorney, Mr. John Garvey, $2,750.”
The plaintiffs read in evidence a power of attorney of Andrew J. and Isabella Garvey to John Garvey, dated September 21, 1871, which in terms constituted the latter an attorney “to sell, assign, transfer, pledge, mortgage, lease and convey, and to make contracts for the sale of all or any estate, etc., and to execute and deliver all deeds, etc., and to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, etc.”

The plaintiff,. John H. Harnett, testified to counselling and advising John Garvey in various matters relating to defendant’s property, to having thirty-five to forty consultations with him, to advising in reference to the effect of proceedings by the creditors of defendant’s husband, Andrew J. Garvey, if they were to push their claims, and also as to whether the city or State of New York could affect the title of Mrs. Garvey. That these consultations involved property estimated to be worth half a million of dollars, and consumed a great deal of time, in the absence of Mr. Garvey, in examining matters.

The power of attorney from the defendant to John Garvey is specific, and does not by its terms authorize him to retain, consult, and employ counsel, except so far as may be necessary to prepare such instruments of conveyance, mortgage, lease, and contract as it authorizes him to execute. Consequently, if he employed counsel, and advised with them in respect to other matters affecting the defendant’s interests, he did so without authority, and the defendant is not bound by such acts, unless she subsequently ratified them.

Testimony was introduced on the part of the plaintiffs to show a ratification. It was contradicted by the defendant. The court charged the jury that the plaintiff’s testimony did not establish a ratification by the defendant of the acts of her attorney, and that upon the evidence the plaintiffs could not recover anything more than the $104 and interest thereon, conceded to be due by the answer.

The jury found accordingly.

The plaintiff excepted to that portion of the charge which stated that the plaintiffs did not show any evidence of ratification by the defendant of the acts of her attorney.

This is the principal exception taken by the plaintiffs, and if well taken disposes of the case.

The plaintiff John H. Harnett testifies: “The defendant had been in Europe; I saw her at her resi- “ dence in East Forty-seventh Street, this city. I went “to her residence twice; the first time was in the month “of February, 1872; I saw her only at her residence. “The first time I called at her house to see Mrs. Garvey, “I saw Mrs. Garvey, and I said that I called in reference “to my bill that had been rendered. She knew me. “ She said, ‘ Well, Mr. Harnett, I would feel very much “ obliged to you if you would allow this bill of yours to “ stand over for a little while, until my husband comes “home from Europe.’ I said, ‘Certainly.’ She said, ‘ I “ hope, when I am settling this bill with you, you will “be a little liberal, and make a reduction in it, because “I think it is rather high.’ I said to her I should sat“isfy her in relation to that matter; that if she considered my bill high I was disposed to be liberal and “make it satisfactory. That was about the substance “ of the conversation. I am pretty sure that I called to “see her at the suggestion of John Garvey, to whom I “ had rendered a bill. She said yes, she had the bill before her; that she wished to have the matter remain “ open until her husband came back from Europe ; she “ stated that she had no doubt my professional advice “to her brother-in-law, John Garvey, was very discreet “ and very good, and she was very well satisfied with “ how everything had gone on in her absence, but she “ was very short of money at the time, and hoped to be ‘in. a very short time able to settle up my account, “and would do so when her husband came back. The “ next conversation I had was about three or four weeks “ after the first; she stated to me that Mr. Garvey had “not got home yet—I am pretty sure that was in the “month of March—and that she was still short of funds, “ and asked my indulgence in relation to the bill. I am “not positive whether it was at that interview, or at the ‘ ‘ first one, that we spoke about the services rendered. I “told her I had advised her attorney, John Garvey, in “relation to her real estate and in relation to her af- “ fairs. I think that was the substance of it. She did “not demand any detailed statement, and it was only “in a general way.”

‘ ‘ Q. She told you at the second interview that her husband had not yet returned, and asked your indulgence. Was anything more said about the payment of the bill %

“ A. Oh, yes; she said the bill would be paid as soon as her husband got bach and she was in funds?''

This testimony, uncontradicted, appears to amount to a ratification by the defendant. She had the bill before her; she was told that the plaintiffs had advised her attorney, John Garvey, in relation to her real estate and her affairs ; she expressed approval and satisfaction in respect to the advice and the way things had gone in her absence, and promised to pay the bill as soon as her husband got back and she was in funds. No objection was made either as to the authority of her attorney to employ and advise with the plaintiffs, or as to any want of knowledge of the nature of the services rendered. The bill and the statement of the plaintiff apprised her of the facts, and her ratification was made without anything being misrepresented or Avithheld from her, but with full knowledge of the matter, so far as appears by the plaintiff’s evidence.

When an attorney goes beyond his power, the principal, upon being informed of the facts, must dissent within, a reasonable time. When the principal promises to pay the obligations so incurred, or takes the benefit of a part ofithe transaction, he in effect ratifies the action of the attorney (Benedict v. Smith, 10 Paige, 130). Where the principal has within his power ample means of ascertaining the facts, not only from his agent, but from the adverse party, the presumption of law is that he paid ordinary attention to his own affairs, and that he ratified his agent’s acts with a full knowledge of all the facts (Rogers v. Kneeland, 10 Wend. 249).

The defendant contradicts the plaintiff’s statement as follows:

“ Q. Did you promise to pay him the bill ?
“A. No, sir; I did not, and he knows I did not.
“ Q. Did you ask him if he would take $2,000 ?
“A. No, sir; I did not. I said to him, ‘This bill ‘ ‘ takes my breath away. If you had sent a bill for $200, “ I might look into it; but you sent a bill for $5,000, and “I don’t think you have done any work for it; and “there it remains, and there it will remain.’ ”

I am inclined to think this raises a question of fact that should have been submitted to the jury. The testimony on the plaintiffs’ part discloses such evidence of ratification by the defendant of the act of her attorney, that the plaintiffs were entitled to have it, together with the conflicting evidence considered by the jury. There was some evidence as to the value of the services rendered, and there were also other exceptions by the plaintiffs to the rulings of the court; but if the view taken above is correct, it disposes of the case.

The judgment appealed from is reversed, and a new trial ordered, with costs to abide the event.

Monell and Sedgwick, JJ., concurred. (


text:
    EDWARD LOUGH, Plaintiff and Respondent, v. BENJAMIN F. ROMAINE et al., Defendants and Appellants.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.
    I. NEW TRIAL.—MOTION FOR.
    1. Fob what granted.

      a. For insufficiency of verdict for plaintiff in an action ex-ddictu. Instance.-—When the plaintiff, from the effect of injuries, was confined to his bed and lying on a sofa,, for eight weeks, and confined to the house three months (his ankle j oint being badly dislocated, and . the smaller bones of the leg badly fractured), suffering great pain, and attended by a physician who testified that the amount of his bill was $500, which had not been paid, and before the injury the plaintiff was earning $4.50 a day and was pretty constantly at work, and since the injury he had not been able to work as well as usual, a verdict for plaintiff of $135 is insufficient.
    3. Costs.—Payment op, when not imposed as a Condition. a. Where the verdict of the jury is against the judge's chan'ge.

    1. What is against the change.

    1. When, in the above instance, the judge, after charging the jury that if they found that the plaintiff received the injury through the negligence of the defendant, and was not himself guilty of any negligence contributing to the injury, then they would have to ascertain the amount of damages he had sustained, charged:— “ The doctor has stated that his bill of services was $500. The “ character of the injury has been stated to you, and it is for “you to say how much he is entitled to receive.”
    A verdict for $135
    WAS HELD
    to be against the charge.
    Appeal from order granting new trial on motion of plaintiff.
    This action was brought to recover damages for injuries sustained by plaintiff by reason of the falling on him of a pile of staves. Evidence was given on both sides as to the cause of the falling, the manner of piling the staves, the custom as to piling and taking down the piles, and as to the acts of the plaintiff on the occasion of his receiving his injury.
    Plaintiff testified among other things in substance that before the inj ury he had been earning $4.50 a day and was pretty constantly at work ; that by reason of the injury he was confined to his bed and sofa for eight weeks and to the house about three months, and was attended by a physician; and that since the injury he had been unable to work as well as usual.
    The doctor who attended the plaintiff testified that plaintiff’s ankle joint was badly dislocated and the small bones of the leg badly fractured, and that the amount of his bill for attending on plaintiff was $500, which had not been paid.
    The case was submitted to the jury under the following charge.
    “ Gentlemen, this a very simple case. The first “question for you to pass upon is whether the defendants in this action have committed negligence. If “they have not, then you can stop there, and find a “verdict for the defendants. If, however, you find that “the defendants have committed negligence in throwing “ down this pile, it will be then necessary for you to consider whether the plaintiff contributed to the injury “by running across the pile at the time it was falling. “If you find that he is guilty of negligence contributing to the injury, you will still render a verdict for ‘' the defendants. If, however, you find for the plain“tiff on both these questions, then you will have to “ ascertain the amount of damages he has sustained.
    “You have heard the testimony, and it is for you to “ say whether the plaintiff is to be believed, or whether “the witnesses produced on the part of the defendants “are to be believed, who testified that the pile was “thrown down in the ordinary way, and that notice “was given to the plaintiff. Numerous witnesses have “been produced on the part of the defendants : first, “the foreman, who is clear and distinct in his state- “ ment that he told the plaintiff he was about to toss the “ pile of staves, and desired him to go away; the other “witnesses corroborate the foreman in respect to the “ warning. It is for you to say on all the testimony, “first, whether there was any negligence on the part of “the defendants; if so, whether there was any negli-'‘ gence on the part of the plaintiff contributing to the “injury ; and if you find that the defendants were “guilty of negligence, and that there was no negli- “ gence on the part of the plaintiff, then you will ascertain what damages should be awarded to him.
    “The doctor has stated that his bill for services was “$500. The character of the injury has been stated to ‘ ‘ you, and it is for you to say how much he is entitled “ to receive. ”
    The jury rendered a verdict for plaintiff, and assessed the damages at $125.
    The plaintiff moved at Special Term on a case, and exceptions for a new trial on thé ground among others of the insufficiency of damages.
    The motion was granted, and this appeal is by the defendant from the order granting the motion.
    Ho judgment has been entered.

      Glassey, Thomas, and Davenport, attorneys, and Samuel J. Glassey, of counsel for appellants, urged:
    I. In actions for damages, courts will not disturb a verdict merely because the amount is greater or less than they might deem the proper amount (Winchell v. Latham, 6 Cow. 682 ; Fleming v. Hallenbeck, 7 Barb. 271, etc.).

      a. There was no proof of any specific damage sustained by the plaintiff. The doctor states what he charged for his services, but there is no evidence of how many visits he made or what was their value. There was a total failure of proof on this subject. •

      b. Plaintiff had to take a corporation job by reason of the accident, but whether at an increase or diminution of wages he does not say.
    II. In actions founded on tort, courts do hot grant new trials merely because the verdict is against the weight of evidence, unless some rule of law has been violated (Jarvis v. Hathaway, 3 John. 180; Murphy v. People, 2 Cow. 815; Wheeler v. Calkins, 17 How. 451, and cases therein quoted).

      a. The justice at Special Term has assumed in this case that the amount of the verdict was grossly inadequate and contrary to the evidence, and grants a new trial; and cites 40 New York, 551, and 7 Bosw. 1; which cases do not sustain the decision below. Nor does the case of Richards r. Sandford (2 E. D. Smith, 349), which was a case of injury to plaintiff, and the jury assessed the damages at $10, for loss of a tooth, injury to the face, etc.
    The court granted a new trial upon condition that all costs are paid, but denied the motion itself if defendant would stipulate to increase the amount to $100.
    III. If this had been a proper case to order a new trial, it must be on condition that the moving party pay all the costs incurred.

      No part of the judge's charge was disregarded by the jury. He could not and did not tell them the amount they should find. If he had, it would .have been error on his part:
    Where plaintiff or defendant ask for a new trial, because the jury’s verdict is against evidence, it must be on payment of costs (Bank of Utica v. Ives, 17 Wendell, 501; Conrad v. Williams, 6 Hill. 444 ; Kennedy v. Harlem R. R., 3 Duer, 659 ; Simmons v. Fay, 1 E. D. Smith, 114; Brock v. Barnes, 40 Barb. 521; Overing r. Russell, 28 Howard, 151; Jackson v. Thurston, 3 Cow. 342; Goodyear v. Ogden, 4 Hill, 106; Brown v. Bradshaw, 1 Duer, 199 ; Ward v. Woodburn, 27 Barb. 346.

      a. The case of Robbins v. Hudson R. R. R. (7 Bosw. 1), quoted by Justice Freedman, is not in point. There the jury rode over the justice’s charge, and, in defiance of his instructions, refused to assess the damages, and the case is clearly distinguishable from the present one. So, too, the question as to whether the costs should abide the "event of the final decision, or be paid as a condition of granting a new trial, was not raised by either side.

      Thomas Bgan, attorney, and Christopher Fine, of counsel for respondent, urged
    First.—The new trial was properly ordered (McDonald v. Walter, 40 N. Y. 551, 552, 554; Richard v. Santford, 2 E. D. Smith, 349).
    Second.—The costs should and were properly made to abide the event (Rollins v. Harlem R. R. Co., 7 Bosw. 15).
    In a case where the verdict is contrary to the law and to the charge of the judge, the costs will be directed to abide the event (Van Rensellear v. Dale, 1 John. Cases, 279; Knapp v. Curtis, 9 Wend. 60; Gra. Prac. 635 [2d. ed.]; Jacobson v. Belmont, 7 Bosw. 14, 18 ; La Farge v. Kneeland, 7 Cowen, 456, 461, and cases above cited).
   By the Court.—Sedgwick, J.

In this case, there was a verdict for plaintiff for $125. The evidence in the case makes it manifest that if he was entitled to a verdict at all, he was actually damaged in a much greater sum. On his motion a new trial was granted on the ground that the verdict was against the evidence and contrary to the charge of the judge.

The first objection taken on this appeal is that the case shows that the plaintiff was not entitled to any verdiet at all. This is not well founded, if we could consider such an objection. There was evidence that the defendant was negligent, and also that the plaintiff was not guilty of negligence.

The other objection is that the new trial should have been granted upon the defendants paying costs. This is not so, if the verdict was against the judge’s charge. For then the plaintiff was not in fault in not seeing that the jury was properly instructed (Robbins v. Hudson R. R. R. Co., 7 Bosw. 1). In this case, the jury, instead of looking to the evidence, as they were instructed to do by the court, to ascertain the damages, disregarded that instruction, and gave a .verdict at variance with the evidence.

The order appealed from is affirmed, with costs.

Monell and Curtis, JJ., concurred.