author: By the Court—Moncrief, J. Woodruff, J. (Dissenting.)

text:
    John Garrison, Plaintiff, v. The Mayor, &c., of the City of New York, Defendants.
    1. Proof that a coach driven upon one of the piers owned by the corporation of the city of New York at the foot of one of the streets, breaks through a plank that is decayed, by means of which the plaintiff’s trunk is thrown into the river, and its contents damaged, is not sufficient to sustain an action against the city for the injury, nor to put the defendants to proof of reasonable and proper care and diligence in keeping such pier in repair. (Woodruff, J., dissented.)
    2. In order to establish, even 'prima facie, a right of action the plaintiff must show affirmatively on his part not only that the plank was decayed, but that the proper officers of the corporation had notice that it was decayed, or show that it was obvious to the eye without any particular examination. (Woodruff, J., dissented.)
    (Before Woodruff, Pierrepont and Monorief, J. J.)
    Heard, February 8;
    decided, December 10, 1859.
    Action to recover damages alleged to have been sustained by the plaintiff by reason of the carelessness and negligence of the defendants in not keeping in-repair a certain public wharf and pier owned by the defendants, and in their care and control, and which they were bound to keep in a good and safe condition, at the foot of a street on the North or Hudson river.
    The answer denied all the allegations of the plaintiff.
    The action was tried on the 23d day of November, 1858, before Mr. Justice Pierrepont and a jury.
    On the trial it was expressly admitted that the defendants are and were in the month of August, 1856, owners of the pier, in question, at the foot of Spring street, on the North river, and thereupon the plaintiff proved by the driver of a coach, that he drove his coach, in which was the plaintiff, having also the plaintiff’s trunk thereon, from the hotel to the pier in question to carry them to a steamboat lying at the pier; that two steamboats were lying there and he had passengers for each; that after delivering passengers and their baggage to one he turned to drive to the other; that in turning he got his coach crosswise of the pier when one of the planks gave way, the wheel of .the coach went through and the coach swung over, and the plaintiff’s trunk was thereby thrown into the water with several others; that he had driven over that part of the dock in going to the boat and saw no crack or hole in it, but that, in turning, the wheel had become lengthwise of the plank; that his coach was much heavier than an ordinary carriage, but that the weight upon the coach when it broke through was not one-twentieth part of what it was when he drove on to the dock.
    Another witness gave evidence tending to show that the plank was unsound, and in part black when it broke and in some part light-colored or “ fresh.” That he could see the plank before it was broken; it was not covered with dirt but was dirty; he saw no hole or crack till it broke.
    Other evidence was given to show that the trunk was properly stowed on the coach, the driver stated that the trunk had support enough by the rail around the top of the coach, and he had never known a trunk fall off.
    Another witness said the trunks were put on as is usual. That in carrying trunks in the manner stated one trunk binds another, and1 that the mode is perfectly safe, and instanced his own experience of many years in confirmation of his opinion.
    No witness stated any contrary opinion. Proof was also given of the contents of the trunk, and that they were damaged by being wet, to the extent or amount of $350.
    Upon these proofs the plaintiff rested his case, and on the defendants’ motion the Judge ordered a nonsuit. To which the plaintiff excepted, and the exception was ordered to be heard in the first instance at the General Term, and the judgment to be in the meantime suspended.

      George C. Goddard, for the plaintiff.
    I. The defendants being owners of the pier, receiving a compensation for its use by the public, are under the same obligations to keep it in a safe condition, and subject to the same liabilities as an individual owner.
    “ Municipal corporations in their private character, as owners and occupiers of lands and houses, are regarded in the same light as individual owners and oceupiers, and dealt with accordingly.” (Bailey v. The Mayor, &c., 3 Hill, p. 541, affirmed 2 Denio, 434; and see Rochester W. Lead Co. v. City of Rochester, 3 Comst., 468.)
    II. It was then the duty of the defendants to keep, the pier in a safe condition, and they are liable for losses arising from negr lect of that duty. (Hutson v. The Mayor, &c., 5 Sand., 289; 5 Seld., 163.)
    An implied contract to this effect exists between- those who use the bridge or pier, and the owner.
    III. The plank broke because it was rotten, and with a light weight upon it, and this caused the loss.
    This raises a presumption of negligence, either in. the building of the bridge, or in keeping it in repair; casting the burden of proof on the defendants, if it admitted of explanation, consistent with due care. And the question should have been submitted to the jury. (Ware v. Gay, 11 Pick., 106; Chester v. Griggs, 2 Camp., 79; Stokes v. Salstonstall, 13 Peters, 181; Holbrook v. The Utica and Schenectady R. R., 2 Kern., 236; Foot v. Wiswall, 14 Johns, 304.)
    IV. In this case, however, the negligence is not left to presumption—it was proved.
    An examination of the pier, such as was- defendants’ duty, where life and property are at risk, would have disclosed the rotten timber. (Bailey v. Mayor, &c., 2 Denio, 440.)
    V. It was claimed on the trial,, and made one of the grounds of the application to dismiss the complaint, that the owner of the coach was guilty of negligence,, and that, therefore, the plaintiff could not recover.
    1. If such was the rule of law, it would be a question for the jury whether there was negligence or not.
    2. The negligence of the owner of the coach, if any, could not be visited on those carried in it, either by an action against them, or by depriving them of a right of action they would otherwise have.
    A new trial should be granted, costs to abide the event.

      R. Busteed, for defendants.
    I. The corporation is not liable, except for such negligence on the part of its agents as occasions injury to those who have a right to be where the injury occurs.

      II. The city is not liable at all for accidents which, cannot be prevented by the use or exercise of ordinary skill in the construction of its piers and streets, and ordinary care and prudence in their management.
    III. Assuming that the plank which was broken by the wheel of the coach was rotten, the corporation would not be liable unless it was proven that the timber was unsound and not fit for use when the'pier was built, or that having become so the city had neglected to replace it after notice of its defective condition, or upon the lapse of reasonable time after the condition of the plank had become patent.
    IV. This accident was clearly a case of the vis major; was produced by the accumulation of weight upon a single point, occasioned by the turning of the coach, and was inevitable. Heither an individual nor a corporate body is liable for such an accident, in the absence of fraud or deceit, unless there has been an express stipulation to be so. The liability of the corporation in a case like this arises only from default to repair after the accident. (Keighley's Case, 10 Coke’s R., 189.)
    V. Hegligence cannot be inferred. The law disfavors such a presumption. In this case the facts contradict the theory of negligence or default on the part of the corporation. The breaking of the plank and the loss to the plaintiff were simultaneous. It is not attempted to be shown that the plank was unsound when the pier was built, and it cannot be held that it is the duty of the corporation to inspect every stone in all of its sewers, and every post or plank in its piers, to ascertain their condition.
    VI. There is no evidence to support the proposition that the plank was in fact unsound before the accident. Cantril merely says it “ was rotten where it broke.” He did not examine it. He had just driven over that part of it, and saw no “crac/c” or hole in it. The witness Baldwin says it looked to him-unsound; but he also testifies that “it looked fresh in some places” where it was broken.
    VII. There was no evidence in the case at all as to the amount of damages, upon which the jury could estimate the extent of the injury. The only testimony on the subject was hearsay, and wholly uncertain at that

      VIII. All the cases cited by the appellant as to the presumption of negligence, refer to a different class of responsibilities than those by which a municipal corporation are bound. They are applicable to common carriers, as such, and are only valuable as adjudications in reference to them.
   By the Court—Moncrief, J.

This action was based solely upon a claim for damages caused by the alleged carelessness and negligence of the defendants, in not keeping in repair the wharf and pier upon which the accident happened.

There is no allegation or proof that the wharf was not properly constructed; on the contrary, there is evidence tending to show that the original structure was good, and proper for the uses intended.

The plaintiff in such a case, before he can recover, must introduce evidence from which it may distinctly appear:

1. That the plaintiff did not essentially contribute towards the accident by his own carelessness, negligence and want of reasonable skill.

2. That the defendants were guilty of negligence in not repairing the wharf before the accident happened.

The law recognizes “accidental injuries,” for which there is no redress, and it is a mistake to suppose that every one who suffers damage by accident, can, as a matter of course, make somebody pay for it. (2 Greenl. on Ev., 9 ed., §§ 222, 243.)

If the defendants are liable in this case, it is only ón the ground of negligence in not repairing the wharf prior to the accident, and not unless upon affirmative proof of such negligence as ordinary and reasonable care would have avoided.

The corporation of this city are not to be held to such miraculous foresight, nor superhuman prudence, as will enable it to discover the earliest moment that the sun and rain began to weaken one plank, by decay in its numerous docks, nor to know which plank of its many thousand that one may be. That need of repairs, (if such it can be called,) which reasonable diligence and care cannot discover, it will not be called negligence to overlook.

The defendants offered no evidence; but the plaintiff showed that the coach was the very large one used by the St. Nicholas Hotel, far heavier than the ordinary hack; that it had some passengers and trunks, and that the trunks in question, with others, were upon the top of the coach without any fastening whatever; that they were two or three feet high, protected only by a slight railing some six inches high; that the coach drove over the plank to the boat, let out some six or eight passengers with their trunks, and then, in attempting to turn its wheels, which could not pass under it, became cramped and got straight across the dock, and in backing in this cramped condition the hind wheel was pressed lengthwise upon a plank, and went through it; as the coach swung the trunks “ went off” into the water; that the coachman had just driven over the very same part of the wharf with a much heavier load, and saw no crack or hole in it; that a policeman was stationed there that morning and three or four days previously, and was there often before the accident, and knew of no defect; that the plank was not concealed by dirt, and that there was neither crack nor hole to warn the most cautious until it broke; that no accident had happened there, and no warning whatever had been given; that; the plank was some eight inches wide, two and half or three inches thick, and when taken up after the accident presented some indications of rottenness or decay; and it clearly appears that, until the moment of the accident, there never had been anything to advise the most vigilant of necessity to repair.

The accident, notice of decay and the occasion to repair, were simultaneous facts.

No practicable degree of skill or care could have foreseen or discovered that the plank had decayed until the happening of the accident. At what time should an examination take place, and how frequently shall it be renewed ? Must the watch and examination of each plank and every stone laid upon the piers and in the streets of the city of New York be constant and unremitting? (18 N. Y. R., 536, 537.)

Many of the cases cited by the counsel for the appellant were against common carriers, and' are not applicable to this action, except in some instances to furnish reasoning against the proposition .urged by him. In Christie v. Griggs, (2 Camp., 80,) Mansfield, Ch. J., sajrs: “ If the axle-tree was sound as far as human eye could discover, the defendant was not liable.”

In 9 Bingham, 457, a coach proprietor, a common carrier, is held liable for all defects in his vehicle which can be seen (and should be avoided) at the time of the construction, as well as for such as may be found afterwards on investigation. The axle-tree contained a defect which could be seen at the time it was used in making the coach, and could have been detected by taking off the wood work.

1 Carrington & Payne, 636, lays down the rule “ that a count upon an undertaking to carry a passenger safely cannot be supported without proof of actual negligence of the defendant. (Ingalls v. Bills et al, 9 Met., 1—15.)

In Bailey v. The Mayor, (3 Hill, 541; affirmed, 2 Denio, 433,) the action was for want of proper care and skill in the construction of the dam. Abundant evidence was given tending to show that it was not properly constructed for the uses intended.

In 5 Sandford, 289, the action was for negligence of the defendants in not repairing a public street. It appeared in evidence that there had been'an excavation made in the street; that it was not protected or indicated by a light to warn passers-by. The plaintiff at night met with the accident. Proof of negligence was given, though the case turned upon the question of liability of agents of the defendants, and was defended mainly upon that ground.

In 3 Comstock, 464, the action was for negligence in constructing a culvert. Evidence was given, and the Referee found that the construction was insufficient.

In 3 Hill, 612, notice of the insufficiency of the sewer and of the necessity to repair, was given before the injury.

In 23 Wendell, 446, the defendant had constructed a bridge over which, as a part of the public highway, the public had the right to pass, and were constantly passing, and the bridge was held to be a nuisance, and the defendant to be liable for any damage resulting from accidents happening by reason of the defendant’s neglect at all times to keep that part of the road as free from liability to accident as if such bridge had not been constructed. The defendant was a wrong-doer, and became an insurer to the public that the bridge should at all times be safe and free from liability to occasion damage. In such a case, therefore, proof of the accident throws the onus upon the defendant to excuse his prima facie negligence. The same principle was properly held in this Court, (affirmed, 18 N Y. R., 84,) in the case of Congreve v. Morgan. (5 Duer, 495.)

The defendants in the case under consideration were engaged, in the legal use of their own property, and no nuisance existed. The wharf was not shown to be out of repair or unfit for use, and no inference of omission or neglect of duty could arise.

If a tenant covenant to keep the house in repair, and it becomes ruinous by accident, the covenant will not become broken till after a convenient time for its repair has elapsed. (2 Shep. Touch., 173, ch. 7.) In the case of Mayor of Lyme Regis v. Henly, cited by the -counsel for the appellant, (plaintiff,) it was distinctly held, that in order to make the corporation liable, four things must appear, and among them, 3d. That the place in question was out of repair. (5 Sandf., 315, 21, 3.)

There was no conflict of evidence. The facts were indisputable. An accident happpened by which it was discovered that a plank had previously in part become decayed and rotten. The plaintiff claimed that the fact of decay was prima facie evidence of negligence of the defendants. In my opinion the evidence would not have warranted the jury in finding the defendants guilty of negligence or carelessness; the action, therefore, could not be sustained, and the Court properly dismissed the complaint. Judgment should be entered for the defendants, with costs, &c.

Pierrepont, J., concurred.

Woodruff, J. (Dissenting.)

It is conceded that the defendants are the owners of the pier and wharf at the foot of Spring street. That wharf forms the lower extremity or terminus of Spring street on the North river; it forms the landing place where the street or highway meets the river. The proof showed that the coach, with the plaintiff and his trunk, was driven to that wharf, in due course of business, to deliver some passengers to a steamboat there lying; that on turning the coach one of the planks forming the covering of the wharf broke by reason of its being rotten, the wheel of the coach went down and the coach was partially overturned, the plaintiff’s trunk was thrown into the water, and his goods were damaged. It further appeared that there was dirt on the surface of the wharf, so that the defect in the plank was not apparent from mere observation while walking or traveling over it.

I think that upon these facts alone the plaintiff should not have been nonsuited.

The defendants are charged with the duty of seeing that the streets and highways of the city are kept in proper repair and safe condition for use by the public. (Hutson v. The Mayor, &c., 5 Seld., 163; 5 Sandf., 289; Storrs v. The City of Utica, 17 N. Y. R., 104.) This is not denied; nor is it claimed that their duty in regard to the public wharves at the foot of the streets, open and used as public landing places, is any less stringent. Nor can such a claim be made, especially when they are not only so used, but they are for the purpose of collecting wharf-age and deriving profits therefrom, regarded as being the very property of the corporation.

If, then, the duty exists, it carries with it the incidental duty to use some diligence to see that the wharves do not, by the operation of ordinary and natural causes, get out of repair or go to decay, and so endanger the lives or property of those who in the lawful pursuit of their business have occasion to use them. (See the above cases and Henly v. The Mayor of Lyme Regis, 5 Bing., 91.) The doctrine contended for by the defendants seems to me to be, that, having built a wharf, the defendants may rest without subjecting it to any examination for an unlimited time, and until some one gives them notice that repairs are necessary, or until the want of repairs becomes so apparent to a merely superficial observation that they must be deemed chargeable with notice. This view of their duty will often result as in this case; the surface of the wharves are of course in some degree covered with dirt, and knowledge of the defect will only be gained when an accident happens.

In the present case, the question is, whether enough was not proved by the plaintiff to cast upon the defendants the burden of showing due diligence in the performance of their duty. They are not insurers against accidents. They are not bound to anticipate every cause of defect in the streets, or liable for not remedying every defect, when it is not shown that they had notice, or by reasonable diligence might have known of its existence. (McGinity v. The Mayor, 5 Duer, 674.) They cannot anticipate every case of neglect or misconduct of individuals which may, for the time being, create defects in the street, which however it will become their duty to remedy so soon as notified, and so soon as by reasonable diligence they might know it, whether notified or not.

The wharf in this instance was unsafe. The plank broke because it was a rotten or decayed plank. No evidence was given by either party as to the time when the wharf was constructed, or under what precautions to secure its being done properly.

At the time of the accident it was not safe. This was owing to a defect in its construction, or to its being suffered to remain until by the operation of natural causes one of its planks had decayed.

The corporation must be held to know that planks are liable to decay; and, knowing this, it is their duty to use at least ordinary diligence, in view of the uses to which wharves are devoted, to inspect them and see that they are in a proper condition ; and here enough was done to devolve upon them the burden of either showing that such diligence was used, or that by such diligence the defect could not have been discovered and remedied.

I think the nonsuit should be set aside and a new trial ordered, costs to abide the event.

Judgment ordered for the defendant.


source: Caselaw Access Project

author: By the Court—Hoffman, J.

license: Public Domain

text:
    Seth W. Peckham v. Ketchum, Rogers & Bement.
    1. Where a broker is instructed to purchase, as such broker, for the plaintiff, a specified number of shares of the stock of a corporation named, and he accordingly contracts to buy the specified number and receives a certificate of stock regular in form and issued by the proper officer of the corporation for the specified number of shares, receives payment therefor from his principal and makes payment to his vendor, and such certificate proves to be valueless and not to represent actual stock, such broker, where he has acted in good faith and according to the customary course of business among brokers in such cases, is not liable to his employer for any damage resulting to him from such transaction and purchase.

      2. It will not affect the question of such broker’s liability that the shares he so bought were transferred to him by the vendor on the books of the Company, and by him transferred to his principal, and that he did not disclose to the vendor his agency in the transaction—that being according to the established and customary course of business in such transactions.
    (Before Hoffman and Moncrief, J. J.)
    Heard, October 21;
    decided, December 17, 1859.)
    This action comes before the Court upon an agreed state of facts, submitted pursuant to section 372 of the Code.
    On the 14th of June, 1854, the plaintiff called at the office of Ketchum, Rogers & Bement, bankers and stock brokers, and asked them if they had any shares in the New York and New Haven Railroad Company for sale. They said they had not, but would, if desired, buy some for him, that day, at the Brokers’ Board. He ordered them to buy for him ten shares, at a price not exceeding $87 per share.
    The same day they sent to the plaintiff the following memorandum :
    “June 14, 1854.
    ■“ 10 shs. N. Y. & N. H. R. R., a 86i,.............. $865 00
    “ Corn’s,...................................... 2 50
    “ Seth W. Peckham. $867 50”
    He sent them his check that day for the $867.50, and they stated that they would transfer the stock referred to in the memorandum into his name on the books of the Company that day, but the certificate would not be ready until the next day. The next day they delivered to him a certificate in due form for ten shares of said stock, signed by Robert Schuyler, the Transfer Agent of said Railroad Company, who was the proper officer to issue the same.
    The firm of Ketchum, Rogers & Bement, after receiving the plaintiff’s order, and on the same day, bought ten shares of one Charles Graham, who in fact had no stock, but had, in good faith, made a contract with Moses Allen for the delivery of ten shares that day.
    Graham, on making the contract with defendants’ firm, went to the office of the Railroad Company, and, with the consent of its officers, transferred ten shares on its books to defendants’ firm, who were thereupon credited on said books with ten shares, and ten shares were charged to Graham’s account. This being done, the defendants, with the like consent of the officers, transferred ten shares to the plaintiff, to whose account they were credited on the books of the Company, and the certificate which the plaintiff received was made out and delivered to him. ■
    Graham stood debited with the ten shares on said books until June 22, when it was balanced by a transfer to. him, by Allen, of ten shares.
    The certificate issued and delivered to the plaintiff did not represent actual stock, and was valueless. The defendants’ firm, on receiving the certificate for the ten shares which they delivered to the plaintiff, paid Graham for the ten shares.
    In purchasing from Graham and taking a transfer of the ten shares to themselves, and on receiving the plaintiff’s check, the defendants’ firm acted in good faith “in the mode usual and customary among stock brokers in the city of New York, among whom it is not usual to disclose the names of their principals to persons with whom they dealt.”
    In due time, after discovering that the certificate received by him did not represent actual stock, the plaintiff tendered a return thereof to the defendants, and demanded from them a repayment of the money he had paid to them therefor; with which demand they refused to comply.
    The question submitted was: Is the plaintiff entitled to recover anything, and,-if so, how much, from the defendants ? If entitled to recover nothing, judgment was to be rendered for the defendants,- with costs; which costs, the parties by. agreement inserted in the submission,-were adjusted at $100.12.

      John S. Jenness, for plaintiff.
    I. The vendor of chattels impliedly warrants' that the article sold is substantially what it purports to be, where the vendee had no opportunity for inspection. (Long on Sales, 204; Jones v. Bright, 5 Bing., 533; Shepherd v. Kain, 5 B. & A., 240; Henshaw v. Robbins, 9 Metc., 83; 1 Parsons on Contracts, 465, and note; Gallagher v. Waring, 9 Wend., 20; S. C., in Error, 18 id., 426; Lightbody v. Ontario Bank, 11. id., 9; S. C., in Error, 13 id., 101.)

      The certificate given to the plaintiff in this case turned out to have been issued without authority, by the Transfer Agent, in excess of the capital stock of the Company. It was, therefore, void stock. (Mech. Bank v. N. Y.& N. H. R. R. Co., 3 Kern., 599.)
    II. The defendants were, in this transaction, the plaintiff’s vendors.
    1. Graham cannot be held to be plaintiff’s vendor. Mo privity whatever existed between them; he sold directly to the defendants, and cannot be deprived of any defenses or counterclaims he may have against them.

      2. Defendants were not brokers in this transaction.
    A broker is a mere negotiator between other parties. (Pott v. Turner, 6 Bing., 702, 706.)
    He never acts in his own name, but in the names of those who employ him. (Baring v. Corrie, 2 Barn. & Ald., 143, 148, 149; Kemble v. Atkins, 7 Taunt. R., 260.)
    He is not intrusted with the possession of goods, and is not authorized to buy or sell them in his own name. (Baring v. Corrie, supra)

    A broker becomes a factor when he buys or sells in his own name, or is empowered to obtain possession of what he buys. (Story on Agency, §34, and note; 1 Bell Com., 386, 478; Kilby v. Wilson, Ryan & Moody, 178; Kemble v. Atkins, supra; Short v. Spackman, 2 Barn. & Adol., 962; Waring v. Mason, 18 Wend., 425; Jones v. Littledale, 6 Adol. & Ellis, 486.)
    TIT. An agent, who really is employed as such, and is known to be employed and acting as such, is, nevertheless, liable as principal, unless he disclose his principal at the time of his contract. (Story on Agency, § 267; Waring v. Mason, supra ; Mills v. Hunt, 20 Wend., 431; 2 Kent Com., 630, 631; Franklyn v. Lamond, 4 Com. Bench, 637.)
    IY. The liability of defendants has been affirmed by express adjudication in similar cases. (Jones v. Ryde, 5 Taunt., 488; Lamert v. Heath, 15 Mees. & Welsf., 486; Mitchell v. Newark, 10 Jur., 318; Westropp v. Solomon, 8 Com. Bench, 345; Brown v. Boarman, 11 Clark & Finnelly, 1; Jones v. Littledale, supra)

    Y. The circumstance that such worthless stock passed current in the market without suspicion is only material upon the question of defendants’ care and diligence as agents.

      "VI. The general custom of stock brokers not to disclose the names of their principals, even if established, (which it is not,) by no means implies a custom that in such cases stock brokers are not subject to the legal liabilities which flow from their assuming to act in their own name. The latter custom is not found, and could not be legally sustained. (Magee v. Atkinson, 2 Mees. & Welsf., 440; Mills v. Hunt, supra.)

      Francis N. Bangs, for defendants.
    I. The foundation of this suit is a contract by which plaintiff emplojmd defendants as brokers. The obligations of defendants under this contract were to use good faith and due diligence and the usual methods of accomplishing the object directed. Unless the case states, what it does not state as matter of fact, bad faith, fraud, want of diligence or neglect of the ordinary mode of dealing, no reason for a recovery is shown.
    II. The use by' the defendants of their own name in making the purchase, was not an act of either bad faith or negligence, nor did it convert them from brokers into principals as against plaintiff.
    1. This was the usage of that business. Of this usage plaintiff was bound to take notice. (Bayliffe v. Butterworth, 1 Exch. R., 425; Mitchell v. Newhall, 15 Mees. & Welsb., 808.) It was therefore one of the terms of their employment that they should use their own names. (Sutton v. Tatham, 10 Adol. & Ellis, 27.) And it was a part of plaintiff’s contract that he should indemnify them against any liability incurred by them for him in that employment. (Westropp v. Solomon, 8 Common Bench, 345; Kemble v. Atkins, 7 Taunt., 260; Child v. Morley, 8 Term R., 610.)
    2. If it was one of the terms of the employment that the defendants should make such a contract as would give plaintiff a remedy against the vendor for any defect in the stock, the case does not show that such remedy against Graham is impaired or impeded by the purchase in the name of the defendants.
    III. The case shows nothing else which the Court can say, as matter of law, was a neglect of any duty incumbent on defendants as brokers.

      What duty can the Court say they ought to have performed before paying the money to Graham ? They could do no more than ascertain Graham’s title. They could ascertain this only by evidence. This evidence would consist of acts, declarations and entries of the Company’s officers.
    If the Company gave effect to Graham’s act of transfer by entering the defendants as stockholders to the extent of the stock transferred, then the defendants had the evidence of an act, declaration and entry of the Company’s officers and agents. This was the highest and best evidence they could obtain.
    It is submitted that the Court may safely say, as matter of law, that these brokers were justified in paying over the money to the vendor upon finding that the Company acknowledged his title and his conveyance as valid.
    IV. The recovery does not depend upon the question w'hether the stock was or was not genuine. In Mitchell v. Newhall, (15 Mees. & Welsb., 308,) the broker bought a letter of allotment, under instructions to buy shares; yet in that case and in Lamert v. Heath, (15 Mees. & Welsb., 486,) it was held that the fair construction of the order was for the jury; that they ought to say whether the principal had not ordered the thing which the broker bought.
    V. The authorities cited by the plaintiff’s counsel are either inapplicable or sustain the defense. But few of them present questions between a broker or other agent and the person employing him.
   By the Court—Hoffman, J.

The plaintiff applied to the defendants to purchase from them ten shares of the stock in question. Being informed tiiat they had none to sell, the plaintiff then distinctly employed them as brokers to purchase for him that amount of shares.

The contract between the plaintiff and defendants, therefore, was, that they were to buy the stock from some third party for his account. He gave them the money to fulfill this contract, and they, in effect, paid that money to the seller of the stock.

The plaintiff dealt with the defendants as stock brokers, and was bound by those customs which prevailed in relation to that species of business. (Horton v. Morgan, 6 Duer, 56; affirmed on appeal, 19 N. Y. R., 170.) The Court above say, “thepractice at the Stock Board, by which the brokers only, and not their customers, are known in their dealings with each other, was not unreasonable, and the plaintiff, by directing this purchase to be made, must be understood as consenting that it should be done in the usual manner.” The case before us states, that in making such purchase from Graham, and in causing or permitting the ten shares to be transferred to them before calling upon the plaintiff to pay, and in receiving said check from plaintiff, Ketchum, Rogers & Bement acted in the mode usual and customary among stock brokers in the city of Eew York, among whom it was not usual or customary to disclose the names of their principals to persons with whom they dealt.

This is sufficient to establish a special custom, although it is in proof, also, that some brokers make use of what is called “purchase notes,” in which the purchasers and seller’s names are inserted.

This custom, then, of which the plaintiff is to be assumed to have had notice, puts him, I think, in the same position, as in the case of a contract made distinctly with one as the agent of a known or disclosed principal. (Rathbon v. Budlong, 15 John. R., 1; Mauri v. Heffernan, 13 id., 58; Ex parte Hartop, 12 Ves., 352; Lewis v. Nicholson, 18 Queen’s Bench R., 503.)

Eo rule of law,” says Lord Eldon, “ is better ascertained, or stands upon a stronger foundation than this, that where an agent names a principal, the principal is responsible, not the agent, but, for the application of that rule the agent must name his principal as the person.to be responsible.”

A party who deals with another, or employs another avowedly as an agent, to make a contract with some one who he consents shall remain unknown at the time, cannot have a better right against the agent than if the principal had then been disclosed. The employment, with the presumed knowledge of the custom, is equivalent to á consent.

The leading case of Westropp v. Solomon, (8 Common Bench R., 345,) cited by the plaintiff’s counsel, appears to me hostile to his claim. The plaintiffs were brokers, and were employed by the defendant to sell certain scrip, which turned out to be invalid. The certificates were such as to deceive everybody who dealt with them. There was no fraud or negligence on either side. Still they were invalid. The brokers paid the purchase money back to the vendees, as also a certain sum which, under rules of the Stock Exchange, had been prescribed to be paid in such cases. They then sued their principal, who paid into Court the purchase money but contested as to the additional sum. The defense was sustained.

The Court say: “ It seems to be agreed that when a principal

employs an agent, the former is bound to indemnify the latter, in respect of all payments which may be made by him in the due course of his employment. The agent may recover moneys so paid under a special count stating a promise to indemnify, or under a count for money paid. The vendees were entitled to recover back the money paid for the stock.”

I do not think that the employment of the defendants, in this case, can justly be treated as an employment to purchase genuine stock, to the extent and import of making them guarantors of the validity of that which they should purchase. It was rather to purchase what in the market was passing as stock of this description. (Lamert v. Heath, 15 Mees. & Welsb., 486.) Then the rule of indemnity to the agent when the principal is a seller, involves the exemption of the agent from responsibility, when, under similar circumstances, the principal is the purchaser.

Again, an agent employed to purchase a commodity of a particular character or quality, is only bound to use all the circumspection and diligence which a prudent purchaser himself would exercise. The nature of the article, the opportunity of detecting the defect or inferiority, with proper diligence, are elements in every case of this description. (Mainwaring v. Brandon, 8 Taunt., 202; Van Alen v. Vanderpoel, 6 John. R., 69; Liotard v. Graves, 3 Caines’ R., 226.) The defendants could not be held responsible under this rule.

Judgment should be rendered for the defendants with the costs as adjusted in the submission, viz., $100.12.

Judgment ordered accordingly


text:
    William Fish, Plaintiff and Respondent, v. Isaac Jacobsohn, Appellant.
    1. In an action by the payee of a check against the drawer, it is no defensé that it was given by the defendant for a debt owing by a- third person to one who was the payee’s principal; and that the payee accepted it as agent for the debt due to his principal, the payee being expressly authorized to settle such debt and receive payment of it.
    2. Such agent, on receipt of such check, having credited' his principal with the amount of it, and having-subsequently, in consequence of receiving it
    ■ and before it was protested, paid other moneys to his principal’s said debtor which otherwise he might have retained and applied upon the .debt for which the check was given, and such check being in terms payable to such agent’s order, he can maintain an action on it, in his own name.
    (Before' Hoffma:n¡ Piekrepont and Monckief, J. J.)
    Heard, November 3;
    decided, December 17, 1859.
    An appeal by the defendant from a judgment in favor of the plaintiff, entered on the report of B. W. Bonney, Esq., as Referee.
    The action is on a check, or bill of exchange, in these words, viz.:
    “New-Yobk, March'16, 1859.
    -“ L. S. Lawrence & Co., Bankers, pay to'Mr. William Fish, or order, three thousand dollars. $3,000 T\s„.
    • “Isaac Jacobsohn.”
    ■- L. S. Lawrence & Co. refused to pay- this check, and it was ■protested, and due notice was given to the defendant.
    The plaintiff resides in London, and is the agent of Benjamin Lumley, who also resides there, and is the proprietor of a theatre. The plaintiff came to New York in February, 1859, to receive, as such agent, all moneys coming to Lumley as his share of the proceeds of representations and concerts given and then being given in the United States, by Picolomini, pursuant to a contract in that behalf between Picolomini, Lumley & B. Ullman..

      In February and March, 1859, several such representations and concerts were given in New York and in other parts of the United States, and various sums of money were paid to the plaintiff as agent of Lumley, on account of Lumley’s portion- of' the proceeds thereof. The defendant was, at the time, acting as Ullman’s agent in this business at New York; Ullman being absent at the south. The plaintiff demanded of the defendant,, as Ullman’s agent, a full settlement, which the defendant promised should take place.
    On the 11th of March, 1859, there was a representation at New Orleans. The plaintiff being then in that city, demanded of Ullman, who was also there, a full settlement. On the 12th of said March, Ullman promised the plaintiff to give to him, before noon of the 14th, the defendant’s check for- the whole sum due to Lumley, or to assign the whole net proceeds of future concerts, until Lumley was paid the whole- balance due to him. On the 14th of March he made such an assignment to the plaintiff, and on the 16th of March the defendant, at New Orleans, gave to the plaintiff the check in question ;• which check was given by the defendant, and received by the plaintiff, for $3,000.25, that being the aggregate of two sums) viz.: $2,555.75 for the balance of proceeds of concerts prior to March 11, 1859, due to Lumley, and $444.50, Lumley’s share of the proceeds of the concert of March 11, 1859. The plaintiff gave a receipt for the check, specifying for what it had been given, and in his account with Lumley, credited him with the amount of the check.
    The plaintiff, under the assignment aforesaid', received the whole net proceeds of three concerts given on the 16th, 18th and 19th of said March; and having- received defendant’s said check for the sums and cause above stated,, paid to Ullman’s agent, Ullman’s portion of the proceeds of the said three concerts.
    The defendant defended this action, brought on his said check, on the grounds that he gave the check without consideration, and that no action would lie on it in the plaintiff’s name; and if any one could recover upon it,. Lumley al'one, as the actual party in interest, must sue as plaintiff..
    The Referee decided that the plaintiff received and held the check for a good and sufficient consideration, and could maintain an action upon it in his own name, and was entitled to a judgment for $3,068.49 (principal and interest) and his costs. The defendant excepted to, these conclusions severally, and appealed to the general term from the judgment entered in accordance with the Referee’s decision.

      John Townshend, for defendant, (appellant,)
    Insisted (1st.) that the consideration of the check was open to inquiry between the parties to this action; (2d.) the presumption is that the check was received as a conditional, and not as an absolute payment; (3d.) an agent, prima facie, has no right to receive payment otherwise than in money, and payment by a bill will be treated as unauthorized;' (4th.) the promise of a third person to pay the preexisting debt of another, for which he is not liable, is without consideration and void.
    Also, that it appears the plaintiff is suing as agent, and it is not alleged he had authority to receive the check; he was not ’the proper party to sue. The check was given to Lumley, and the plaintiff shows no authority to sue in his behalf.
    • T. H. Rodman, for plaintiff, (respondent.)
    I. The complaint avers that the check was given in settlement of a balance due by Ullman to Lumley. The answer, that it was given to pay a debt claimed to be due by Ullman to Lumley, but that in fact no such debt was then and there due.
    On this answer, on which the cause was brought to trial, the plaintiff was entitled to judgment.
    • II. The amendment, called a further answer, did not alter the case except by requiring the plaintiff to prove the presentment of the check, which he did.
    • III. In addition to this, he proved by his own oath the whole transaction.
    Defendant was Ullman’s manager; promised plaintiff a settlement of accounts, on his arrival in New York from England. Defendant procrastinated, and evaded a settlement in New York; paid $1,500 on account in Cincinnati, and promised to close the whole matter when the party reached New Orleans.
    There Ullman promised to settle by giving defendant’s check, ■.and if he failed to do so, to assign to him the net receipts of the, theatre at Hew Orleans, until the balance was liquidated, and did so.
    Then defendant promised his check and gave it, and took a receipt for it in settlement of balance of concert account, and profits of performance in Hew Orleans.
    On the faith of this check, plaintiff paid over the portion of expenses of the next performance in Hew Orleans, and Ullman’s share of profits which plaintiff had previously received; and did the same as to three subsequent performances.
    Upon these facts, the conclusions of law necessarily follow.
    The judgment should be affirmed, with costs.
   By the Court—Hoffman, J.

Two of the propositions of the learned counsel of the defendants, in the elaborate points submitted, may be conceded to be law. One, that the consideration on which the draft was given could be inquired into between these parties, and that a plea of no consideration made out could be a defense. The other is, that the giving of the draft in question did not extinguish Lumley’s demand upon Tillman.

The case of Crofts v. Beale, (5 Eng. L. & Eq. R., 408,) is strong upon the first point, and applicable in its facts to the present case. Pratt v. Foote, (5 Seld., 463,) and Noel v. Murray, (3 Kern., 167,) may be referred to for the second proposition. “ The substitution of one executory agreement to pay for another, is no satisfaction of the debt, unless there is an express agreement to accept the new obligation as a satisfaction of the old.”

But a distinction exists on the facts of the present case, growing out of the law of mercantile paper, which is sufficient to sustain the action. It is well established law in this Court, that a note made for the accommodation of a payee, and by him passed to another as security for a preexisting debt, may be recovered upon. (De Zeng v. Fyfe, 1 Bosw. R., 335, and cases cited.) In that of The Bank of Rutland v. Buck, (5 Wend., 66,) the surety to a note given for the accommodation of the principal, was held liable when passed away as collateral security for payment of a judgment.

Thus, in the present case, the defendant has given this draft for the accommodation and benefit of Tillman, and it has gone to the plaintiff as security for Ullman’s debt, and he is liable upon it. But this leads to another question.

The debt was not owing to the plaintiff, but to Lumley, and it is objected that Fish is not the proper party to bring the action.

The promise is made to him by his own name, without further designation or qualification. It purports to be a contract with him personally. It is in every just sense made with him, and he may sue thereon. (Considerant v. Brisbane, 2 Bosw., 471.)

We think the judgment-must be affirmed, with costs.1


author: Moncrief, J. Hoffman, J.

text:
    John S. Patterson, Administrator, Plaintiff, v. Samuel Perry et al, Defendants. White, Warner & White, Appellants, and George Milne, Respondent.
    1. Where the owner of goods, residing in Ohio, consigned them to a factor residing in New York city, for sale, and such factor, on advice of shipments of goods from time to time, and on receipt of bills of lading for such goods advanced to the consignor, and on the 6th of April, 1854, the consignee’s advances and charges exceeded in amount the value of the consigned property which had then come to hand, but were less in amount than the value of the whole consigned property, (including the value of that for which bills of lading had been received, but which had not then arrived,) and all of such consigned property arrived by the 15th of June, 1854, and on subsequent sales produced a surplus, after paying all advances and charges, an attachment against the property of such consignor, issued under the Code, and served by delivering a certified copy of it to such factor on the 6th of April, 1854, will attach and bind such surplus, and such attaching creditor will hold it in preference to, and to the exclusion of, another creditor of such consignor, who obtains an attachment against the latter and serves it in like manner on the 15th of June, 1854.
    2. This result will follow, although enough of the consigned property, to pay the factor’s advances and charges, had not only not been received by the factor, but had not arrived within the State of New York when the first attachment was issued and thus served.

      i See Robinson’s Practice, vol. 3, p. 34, and the cases there collected, which support the proposition, that as a general rule, on a contract not under seal, made with an agent in his own name, either the agent or principal may sue. (See. also, Pool' v. Guilford, 6 Sold., 213.)

      3. Nor will it make any difference that the creditor issuing the second attachment became such creditor by discounting for said consignor, at the date and time of the last of said shipments, two bills drawn by the consignor against said shipment, and that the factor was advised, by the consignor’s letter inclosing the bill of lading for that shipment, of the drawing of said two bills against said shipment, and was requested to honor the same; and such letter and bill of lading was received by the factor on the 5th of April, 1854, before the first attachment was served or issued.
    (Before Hoffman, Pierrepont and Moncrief, J. J.)
    Heard, October 26th;
    decided, December 24th, 1859.
    This is an appeal by the defendants, White, Warner & White, from, a judgment declaring that they have no lien upon or right to the moneys forming the subject of the action, and directing that such moneys be paid to the defendant, George Milne, surviving member of a firm composed of himself and George W. Reed. The action was tried before Mr. Justice Hoffman, without a jury, on the 25th of February, 1859.
    The action was commenced by John S. Patterson, administrator of Samuel Lewis, deceased, as plaintiff, to recover balance of proceeds of property consigned to the defendant, Samuel Perry, a factor and commission merchant, for sale, by one Albert Lewis, of Cincinnati, Ohio, and was brought against Perry alone. The plaintiff claimed that the property and the proceeds thereof remaining in Perry’s hands, had been assigned by Albert Lewis to one Henry Lewis, and by said Henry to the plaintiff’s intestate.
    On the application of Perry, the said Albert Lewis and Henry Lewis, the firm of White, Warner & White, the firm of Milne & Reed, and John Orser, Sheriff, of New York, were also made parties, defendants.
    On the further application of Perry, and on notice to all of said defendants, an order was made that Perry pay into Court the sum of $6,696.62, the balance of proceeds in his hands, with interest from the 22d of March, 1856, to the credit of the cause, (in all $7,618.73,) and that on doing so he be discharged from all claims from either party in respect to such property or its proceeds. Perry complied with said order.

      At the trial, it was determined that the plaintiff had no right to such moneys, and the contest (as he did not appeal from the judgment) narrowed to one between the firm of White, Warner & White, and the firm of Milne & Reed, both of which firms claim such moneys by virtue of attachments issued by them against said Albert Lewis, and executed by said John Orser, as Sheriff of the city and county of Kew York.
    ' The attachment against Albert Lewis, at the suit of White, Warner & White, was issued and served on the 6th of April, 1854. The property which Albert Lewis had then consigned to Perry, and which had come to the hands of the latter, was not of sufficient value to pay the advances and charges which Perry had made to said Albert Lewis thereon and upon other property not then received by him, but of the shipment of which he had been previously advised, and the bills of lading for which he had previously received.
    But the property then in Perry’s hands, which Albert Lewis had previously consigned to him, and that covered by bills of lading then in Perry’s hands, which had not then arrived or been received by Perry, was worth more in' the aggregate than the amount due to Perry for advances and charges. The property not yet actually received in Kew York, had been shipped and was in course of transportation to the city, and between the said 6th day of April (when the attachment of White, Warner & White was issued and served on Perry) and the 15th day of June, (when the attachment of Milne & Reed was served on Perry,) it all came into Perry’s hands.
    The proceeds of the last shipments made by Albert Lewis, were claimed by Milne & Reed to constitute the surplus in the hands of Perry, after paying his advances and charges. Ko property was shipped by Lewis after the 1st day of April, 1854, but on that day an invoice amounting to $8,548.92 was shipped from Cincinnati to Perry ; and on the same 1st of April, 1854, said A. Lewis drew two drafts or bills of exchange on Perry, each for the sum of $4,202.99, one dated that day, and the other April Sd, to his own order, which two drafts were discounted for him by said Milne & Reed of Cincinnati, about the 1st of April, 1854, who paid the proceeds to said A. Lewis. On the same day, A. Lewis wrote to Perry inclosing the bills of lading for the property shipped on said 1st day of April, advising him of having drawn said two drafts against the same, and requesting him to honor them. Perry received this letter on the 5th of April, 1854.
    On the 6th of April, 1854, after the attachment of White, Warner & White had been served, these drafts were presented to Perry for acceptance. He refused to accept them on account of such attachment having been served, and they were protested for non-acceptance.
    On the 15th of June, 1854, Milne & Reed, in an action commenced by them against Albert Lewis on said drafts, procured an attachment against the property of said Lewis, which was served upon Perry on the same day.
    On or before the 15th of June, Perry had received the property shipped on the 1st of April, and also all prior shipments; and the sales of the consigned property extended into the following August and September. There was a balance produced from the whole property received by Perry, of the amount so as aforesaid brought into Court, over and above his advances and charges.
    He made no advances at any time on the specific property shipped on the 1st of April, 1854, except the charges for freight, insurance, &c. On the 1st of April, 1854, he was a creditor of Albert Lewis to about the sum of $25,000, having made advances from time to time, on being advised of the shipment of property, much of which had not then reached his hands; nor does the evidence show that it had arrived within the State of New York on the 6th of April, 1854.
    White, Warner & White and Milne & Reed had prosecuted their attachment suits to judgment prior to the trial of this action, and the records of recovery therein were put in evidence.
    Each attachment was served by a delivery by the Sheriff to Perry of a copy thereof, having indorsed thereon a certificate signed by the Sheriff’ and dated on the day of such service, in these words, viz.:
    “ I hereby certify the within to be a true copy of the original warrant of attachment, as served by me in this suit, and that the attachment, of which the within is a copy, is now in my hands, and that in it I am commanded to attach and safely keep all the estate, real and persona], of the said Albert Lewis within my county, (except such articles as are by law exempt from execution,) with all books of account, vouchers and papers relating thereto; and that all such property and effects, and the debts and credits of the said Albert Lewis, now in your possession, br under your control, are or which may come into your possession, or under your control, will be liable to said warrant of attachment, and you are hereby required to deliver all such property, &c., into my custody without delay, with a certificate thereof.”
    Perry sold the several shipments, indiscriminately, for the purpose of paying advances; not selling property first shipped to pay the advances first made.
    The Judge held that the resulting general balance of $6,696.62 was to be considered as derived from property received by Perry after the 6th of April, 1854, and most of it from that shipped on the 1st of April; that White, Warner & White acquired no lien on it under their attachment; but that the attachment of Milne & Reed was a lien thereon, and that the net surplus thereof be paid to Milne as survivor of Reed, he having died pendente lite.

    White, Warner & White excepted to these conclusions severally, and from the judgment entered upon said decision they appealed to the General Term.

      S. Weir Roosevelt, for appellants.
    I. It is the opinion of the Court below, that the fund in dispute was chiefly produced by the sale of the last lot of goods, and that Perry had paid charges, but had not made advances on this last lot specifically. It appears, however, from Perry’s accounts, which are in evidence, to have been the course of dealing between Lewis and Perry, not to discriminate among the various lots, but to sell a portion, of one with another as suited the market, not keeping separate accounts with each lot; and if one lot did not fully repay advances, the next lot was sold to meet the deficiency, and such indeed is of necessity the general custom among commission merchants. It is therefore difficult to ascertain as a matter of fact which of the lots per se may fairly be said to have produced the fund in dispute. It appears to be conceded by all parties, however, that Perry was consignee of all the goods, and in possession of the bills of lading, with the right to sell the whole in order to pay himself advances, commissions and expenses, and he did sell the whole accordingly. No attempt was made under either of the rival attachments, to take possession of the goods or interfere with Perry’s sales, and nothing was done by the Sheriff beyond the service of copy and notice, and the Court finds that the last lot was subject to Perry’s advances, which were a balance of advances not repaid by the proceeds of the previous lots.
    II. Under these circumstances, we do not understand how the presence of the goods in the county can affect the priority of the attachments, as between these defendants. It has been determined (Brownell v. Carnley, 3 Duer, 9,) that the Sheriff cannot take possession of goods so consigned, and, in fact, he did not take possession. How, then, is the lien of an attachment made more strong by the bodily arrival within the county, or more weak by the non-arrival, of certain goods which the Sheriff is not permitted to touch when they come here, and which, as goods, are absolutely controlled by the consignee. It is even doubtful (see above case) whether the creditors could have obtained possession on any terms, but certainly they could not without paying Perry his advances and commissions on the earlier lots, and his expenses and commissions on the last lot. When no levy can be made on goods under an attachment, their precise location, at a given moment, is both theoretically and practically of little importance, and can certainly not settle priorities.
    III. Neither of the attachments, therefore, could in law, or did in fact, reach the goods, nor can either be said to have reached the interest of the consignor in the goods. The interest of a party in goods, as such, cannot be considered as attached, when the creditor is not enabled, by force of the writ, directly or indirectly, to take possession of or qontrol the property. Perry, the consignee, might rightfully have sold all the goods before they came into the county, and had, in all respects, complete control. (Brownell v. Carnley, 3 Duer, 9; Bryce v. Brooks, 26 Wend., 367; Knapp v. Alvord, 10 Paige, 205.) Supposing this and the former propositions to be assumed as correct, the question is, what was effected by the service of the certified copies of the writs and notices upon Perry, the consignee. It is conceded that, on the same day, but before the service of the first attachment, the bills of lading of the last lot of goods were received, by Perry, and we contend, on behalf of White, Warner & Co., that at that moment the consignee, Perry, obtained the immediate right to sell the goods, and held the legal title, while Albert Lewis, the consignor, at the same moment, became so far a creditor of Perry, that the goods would be charged against Perry in anticipation of the final accounting. When the bills of lading came to hand, Perry might have forthwith sold the goods “ to arrive,” and forthwith transferred the title accordingly. What interest, then, did Lewis, the consignor, retain after the arrival of the bills of lading which could be the subject of attachment? He had, perhaps, the right of reclaiming the bills of lading, or of stopping the goods during their transit, a right which he did not exercise, and which no creditor did or could exercise for him by attachment. He had, also, perhaps, the right of demanding a return of the goods on paying the consignee his advances, if any, and expenses and commissions; another right not exercised, if capable of being exercised, by the attaching creditors. He had, lastly, a light, clear and unquestionable, which he did exercise, and that was, to consider Perry as a debtor charged with the goods, and personally responsible to account for the proceeds, and leave him to act upon the bills of lading, and exercise his own rights as consignee, undisturbed, receiving and selling the goods to pay the advances, if any, or if none, the expenses and commission. This last right as creditor, or interest of Lewis in a final accounting between himself and Perry, was the subject of attachment, (Code, §§ 284, 235,) and as it began to exist at the moment the bills of lading were received, it was reached first by the first attachment. The amount of indebtedness was, it is true, not yet fixed, but there was an existing interest, and the position of Perry may be compared to that of a person holding collaterals in pledge, in which case an attachment against the pledgor, served on such holder, would, we think, obtain priority for any surplus, although the balance of account could not be ascertained before a sale of the collaterals. Indeed, the amount between Perry and Lewis was not fixed until after the service of the second attachment, which, in this respect, as in many others, is in the same dilemma as the first. We contend, of course, as is in substance found by the Court below, that Perry rightfully held and sold this last lot to repay a portion, of the previous advances not refunded by the former lots, as well as expenses and commissions; but the case would not be varied, if the sale of the last lot had been merely to obtain a return of expenses and commissions; and we have endeavored to show that even under such circumstances the attachment of White, Warner & Co. has priority, because:
    1st. Under neither attachment .was any levy or inventory made, or possession taken of the goods.
    2d. Under both, the inchoate indebtedness of Perry to Lewis was attached in the order of service.
    IV. A levy under any attachment should enure to the benefit of a former attachment by statute, by analogy with executions at common law, and as a matter of sound policy. (Peck v. Tiffany, 2 Comst., 450, 457; Ray v. Birdseye, 5 Denio, 624, 625; Solomon v. Freeman, 4 Sandf. Ch., 515; 3 R. S., 5th ed., 645, § 15, [366] ; Code, § 232; 12 J. R, 403.)
    V. It must be noted that Lewis was not himself owner of the goods, but was consignee or pledgee, having made advances, and, therefore, possessing a lien which he transferred to Perry by the bills of lading; and this fact removes the goods, as goods, still further out of the scope of the attachment, and renders the interest of Lewis more plainly such a claim, as when assigned to Perry, was subject forthwith to attachment without reference to the location of the goods.

      G. 0. Goddard, for respondent
    I. It was found by the Court at Special Term, and was clear from the evidence, that, at the time of the attachment of White, Warner & White, April 6th, the advances and charges of Perry on the property of Albert Lewis, then in Perry’s hands, much exceeded the value of the property; so that, as the accounts then stood, there was nothing to attach in Perry’s hands; on the contrary, Lewis was largely a debtor to Perry. Also, that, at the time of the attachment of Milne & Co., June 15, all the property had been received by Perry, creating a balance in Perry’s hands, which constitutes the fund in Court, and which was derived from the property received after April-6, and chiefly from that shipped April 1.
    To which finding o'f facts there is no exception.

      II. The decision at the Special Term was correct, that White, Warner & White, by their attachment, acquired no right to the proceeds of the property which arrived in New York, and was received by Perry after April 6, and that they were not entitled to the funds in Court.
    Their attachment had no prospective operation, so as to reach property coming into the county, and into Perry’s hands, after the service of it. It was served on the 6th of April, and at no subsequent time.
    By the terms of the Code, and by the nature of the writ of attachment, no property is reached by it, except that in the county and on hand when it is served. (Code, §§ 231, 232, 235, 236,240 and 241; 2 R. S., 2d ed., p. 44, §§ 7, 8, 28-34; Learned v. Vandenburgh, 7 How. Pr. R., 379; S. C., 8 id., 77.)
    Attachments in other States are analogous.
    “ The moment of service is the precise period when a debt is attached, and if it be then existing, it is secured by the process; but if it does not then exist, no lien is created, as the operation of an attachment from its nature is immediate and not prospective.” (Fitch v. Waite, 5 Conn. R., 122.)
    “ To constitute an attachment of goods, the officer must have the actual possession and custody. This results from the legal import of the word; and in this sense it is now to be understood.” (Lane v. Jackson, 5 Mass. R., 162.)
    In this respect, attachments are unlike executions, which take effect by delivery to the Sheriff, except against bona fide purchasers for value.
    III. The bills of lading being in Perry’s hands did not subject to the attachment property on the Ohio river, or elsewhere, on its way to New York. They are merely evidence of Perry’s having some interest in the property, but have no effect to bring the property within the reach of the Sheriff.
    As to that shipped on the 1st of April, Perry had then no interest in it, not having advanced or paid anything on it. (Grant v. Shaw, 16 Mass. R., 341.)
    IY. Perry had a specific lien for his advances and charges on all the property, except that shipped on the 1st of April; on which last he refused to advance.

      As against Milne & Co., had the question arisen, Perry would have been bound to look first to the property on which he had such specific lien. But the funds in Court are found, in fact, to arise from the property received after April 6, and chiefly from that shipped on the 1st of April.
    None of the exceptions to the decision at Special Term are well taken, and the judgment should be affirmed, with costs.
   Moncrief, J.

The material question arising upon the evidence in the Court below was, whether “the attachment of Milne

6 Reed, though subsequent in time, took priority in effect?” And it was held it did; and judgment was ordered for the payment of the funds to them. This, in my opinion, was erroneous.

The Court below found that the debtor, Albert Lewis, had such an interest, or property, as was the subject of attachment. This view cannot be questioned: it is expressly so decided in 3 Duer, 9.

The property was in Samuel Perry, by virtue of his previous advances, and the possession of the bills of lading gave to him, as against the world, the right to receive the goo.ds and to dispose of them. (3 Duer, 12; 5 Seld., 559.)

A notice of the issuing of the attachment was served upon Mr. Perry in each action. The same Deputy Sheriff had possession of both writs.

In the case of White et al., the notice and copy attachment was received by Mr. Perry on the 6th day of April, 1854, and while the goods were on their way to New York. In the matter of Milne & Reed, the notice was served on the 15th day of June, 1854, and- after the arrival of the goods at New York. Strictly speaking, neither attachment was levied upon the property in the hands of Mr. Perry, nor was there, on behalf of either party, such a service of the attachment as the law requires to create a lien. No inventory was made, and no notice given specifying the particular property or interest seized. (5 Duer, 250 ; 9 Conn., 530; 7 id., 271; 4 E. D. Smith, 443.)

In neither instance did the Deputy Sheriff receive a certificate from Mr. Perry.

The attachment of White et al. was a valid and continuing process in the hands of the Sheriff, at the time of the receipt and service of notice under the attachment of Milne & Reed.

An-attachment is an “ anticipated execution” to take and hold the property, subject to a judgment in the action. (16 Johns., 107; Thayer v. Willet, in this Court, November 12,1859.)

Executions in the hands of the Sheriff bind the goods, and any levy made by him enures to' the benefit of the executions in the order in which they were received. (1 Cow., 592; 7 Taunt., 57; 1 Arch. Pr., 259; 2 Comst., 451.)

The statute makes it the duty of the Sheriff, upon the receipt of any execution, to indorse thereon the year, month, day and hour of the day when he received the same. (3 R. S., 5th ed., 643, §10.)

Section 14 provides that “if there be several executions issued out of a Court of record against the same defendant, that which shall have been first delivered to an officer to be executed shall have preference, notwithstanding a levy may be first made under another execution;” * * and by section 15 it is further provided that “if there be one or more executions, and one or more attachments, against the property of the same defendant, or if there be several attachments, the same rule prescribed in the last section shall prevail in determining the preference of such executions or attachments.” (2 Comst., 451.)

Any other rule or practice would necessarilylead to confusion, and possibly might produce collusion and bad faith. (16 Mass., 819, 322.)

Previous to the Code there were, as now, the attachment for the benefit of creditors generally, (under the absent, concealed and non-resident debtor act,) and for the specific benefit of the pursuing creditor, by virtue of the non-imprisonment act, &c.

The case of Grant v. Shaw, (16 Mass., 341,) cited in the Court below, was a case in which the defendant, at the time he was first summoned as trustee, had no property or interest in any property belonging to the debtor. ' He had expressly declined to accept the shipment, although the bills of lading had been sent to him: having refused acceptance and payment of the draft drawn thereon, the bills had been returned to the debtor. The plaintiff, after the return of the bills of lading, and the receipt of the goods by the defendant, again summoned him, but not until other creditors had served him with their processes.

It, is quite evident, from the statement of the case, that the facts are dissimilar to the case under consideration.

The Court, Parker, J, said “ that the defendant was not trustee until he had accepted the consignment and received the goods: until then it rested in contingency whether he would be a debtor of the consignors or not.” Had the debtor accepted the bill when presented, there could have been no question.

The statutes of Massachusetts provide that the garnishee cannot be attached, inter alia, 4th, by reason of any money or other thing due from him to the defendant, unless, at the time of the service of the writ on him, due absolutely and without depending on any contingency. (R. S., Mass., 1836, pp. 643, 651.)

An examination of the statutes did not enable me to find a provision similar to that in our State relative to the priority of executions and attachments, and I believe none exists.

I am clearly of the opinion that, as between the two attaching creditors—and the contest is confined to them—the attachment first delivered to the Sheriff had priority, and that the Court below erred in giving preference and awarding judgment in favor of the latter.

The judgment should be reversed, and a new trial ordered.

Hoffman, J.

(The opinion, after discussing the evidence in relation to the state of the accounts between Perry and Albert Lewis, on the 6th of April, 1854, and the value of the property then in Perry’s hands belonging to Lewis, proceeds as follows:)

The first important question is, whether an attachment will bind goods received by a consignee, subsequent to its service, when that consignee had, at the time of service of the attachment, the bill of lading in his hands, with advise of the consignment, the goods being out of the county, but on their passage from a foreign place. And this question arises as between such attaching creditor, and a subsequent one, attaching after the goods had arrived within the county, and when they or their avails were in the consignee’s hands.

The answer to this question in the affirmative would dispense with the necessity of examining any other point and decide the case in favor of the appellant. I think, however, that this simple and unmixed question cannot be so .answered.

The 227th section of the Code provides, that a plaintiff may have the property of the defendant attached in the manner prescribed as a security for the satisfaction of such judgment as may be recovered by the plaintiff.

By section 231, the warrant is to be directed to the Sheriff of any county in which property of such defendant may be, and shall require him to attach and safely keep all the property of such defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiff’s demand. Several warrants may be issued, at the same time, to the Sheriffs of different counties.

So by section 234, all property in this State of a defendant is liable to be attached and levied upon, and sold to satisfy the judgment.

Thus, under the Code, the property which may be attached is, first, property as defined therein; and next, that property when found in the State. If in the State, then the warrant must go to the Sheriff of the county in which it is found.

Thus the question is reduced to this, was the bill of lading in Perry’s hands, property within the meaning of the Code ? If it was, then it was within the county of the Sheriff of New York.

The definition of property, in section 464 of the Code is, that it includes property, real and personal, and the definition of personal property, is, “ money, goods, chattels; things in action and evidences of debt.”

It seems impossible to understand how a bill of lading, after it is in the hands of the consignee, is a thing in action belonging to the consignor named in it, or an evidence of a debt owing to him. Its delivery is a symbolical transfer to the consignee of the property and of a right of action against the carrier. It contains no evidence that the consignee is indebted to the consignor.

The two cases, in Massachusetts, of Grant v. Shaw, (16 Mass., 341,) and Andrews v. Ludlow, (5 Pick., 28,) are exactly in point, unless there exists a distinction upon any peculiar different provisions in the statutes of that State.

The 24th section of the revised act of 1836, (ch. 90, p. 549, Laws of Mass.,) provides, that all goods and chattels that are liable to be taken in execution may be attached and held as security, except such as from their nature or situation have been considered as exempt from attachment, according- to the principles of the common law, as adopted and practised in this State.

By the 19th section of chaper 97,. title III, part III, page 589. “ All chattels, real or personal, and all other goods that are

by the common law liable to be taken in- execution,” may be taken and sold thereon, with certain-exceptions.

It appears to me, that there is nothing .in the statutes of Massachusetts, differing from our own definition of property, which, may give rise to any doubt of the pertinency of the cases referred to, unless it be that a bill of lading is a chose in action, or evidence of a debt belonging to the consignor. This, I have before stated, does not seem to be a tenable proposition.

The case of Grant v. Shaw, decides expressly, that one who has received a bill of lading and invoice of goods consigned to him cannot be charged as Trustee of the consignor until the goods have arrived, and the consignment has been accepted. An attachment laid when the bill of lading only was on hand, was superseded by a subsequent attachment laid after the goods had arrived.

2. But the question as presented upon the peculiar facts of this case is different, and of no little interest and concern in this mercantile community. When the attachment of the appellants was served on the 6th of April, Perry had on hand an aggregate of goods, notes given for goods, and bills of lading representing goods on the way to him, and subsequently received, more than enough to discharge all his demand, including immature acceptances-; and to leave a balance equal to the amount claimed by these attaching creditors. Again, the remaining goods, and the unpaid’ notes, then on hand, exceeded the amount of the demand of the appellants.

It is stated as-a rule of law, that the attachment may be defeated' by the lien of the garnishee upon the goods of the defendant, provided it be to the full amount of the value of the goods attached. If it be not to- the full extent of the value, then the judgment is taken for the goods subject to the garnishee’s lien, which must be ascertained from the garnishee or at the trial (Locke on Attachment, 57.) He cites Giles v. Nathan, (infra,) and Bohun’s Privileges of London, 270.

In Giles v. Nathan, (5 Taunt., 558,) cited by Mr. Locke, it was held that the property in a cargo for which the master had signed bills of lading might be transferred by delivery, without the indorsement of the bills of lading. The title would be subject to the claim of a bona fide indorsee of the bill of lading. But whether such property passed or not, Hothan, the consignee, had a lien upon the cargo for advances, and no creditor of the owner could attach it, or the produce of it, without discharging such lien. Without doing this, Levin himself (the owner) could not have received it, and they who attached the property as belonging to Levin, could not have a larger right than he possessed before the attachment. Supposing, therefore, that in the interval between the delivery of the cargo and the indorsement of the bill of lading, Nothan had a mere lien upon it, still it could not be attached as the property of Levin without discharging it from the lien.

In Curtis v. Norris, (8 Pick., 280,) an engagement to pay was held enough to prevent the attachment from affecting more than the surplus of goods in the garnishee’s hands.

In The Bank of South Carolina v. Levy, (1 McMullan, 430,) it was decided that a garnishee, to warrant the retention of goods on hand, need not prove that he was entitled to bring an action. It would be sufficient if his outstanding liabilities exceeded the amount of funds. They gave him a special property superior in its nature.

And in Nolan v. Crook, (5 Humph., 312,) an attachment was served' when the garnishee was in advance, for an actual cash balance, and was then under liabilities which he paid before the hearing of the cause. He was allowed for both, before the ■attaching creditor could come in.

I apprehend that the law is that a factor or consignee, such as .Perry was in this case, could sustain his lien tor his own unpaid acceptances against an attaching creditor. (Black v. Zacharie & Co., 3 How. U. S. R., p. 483.) Yet there is some authority to the contrary. (See Nelson v. Martin, cited Locke on Attachment, 57, note; Taylor v. Gardiner, cited by Mr. Sargeant, as decided by Judge Washington, C. C. U. S., January, 1811, on Attachments, 103; 2 Wash. C. C. R., 686.)

But the lien, in this point of view, may be regarded as eventual and conditional, leaving the consignee a right to hold and resort to existing funds tor reimbursement when he pays his own liabilities. The argument that the actual property in the notes was in Lewis, thus receives some confirmation.

The property in all the goods comprised in the bills of lading passed for many purposes to Perry, by his possession of such bills, coupled with his being in advance, and passed to him before the goods themselves had arrived. (Allen v. Williams, 12 Pick., 297; see further Anderson v. Clark, 2 Bing., 20; Haillie v. Smith, 1 Bos. & Pull., 513; Byans v. Mix, 4 Mees. & Welsb., 792; Brownell v. Carnley, 3 Duer, 9.)

This property, or right in property, extended to all the goods indiscriminately. Although in point of fact there was a property in more goods represented by the bills of lading than the amount of his demand, yet neither Lewis nor any one under him could claim a right to separate any particular parcel and withdraw it from Perry’s hands without payment of the balance due him.

The correlative right and interest seems necessarily to have existed in Lewis. His remaining interest extended on the 6th of April as much to the goods unsold, and to the notes unpaid for goods sold, as to the goods represented by the bills of lading, and in the course of transportation. If so, there was actual property in New York in Perry’s hands, which the attachment could fasten upon.

To repeat, Perry had, on the 6th of April, a heavy debt owing him; he had some goods on hand, and notes taken on previous sales to an amount exceeding $8,000; he had bills of lading made in his name by the owner, comprising property which, with the goods and notes above mentioned, exceeded in value his demand by over $6,000.

Why was not Lewis’ interest in the excess of this properly, applicable to the aggregate property; why not as much applicable to the unpaid notes then on hand, as to the goods in transition, and subsequently received ?

In considering the cases above cited, and the principle they appear to involve, it seems to me more accurate to say, that the right of a consignee in advance for his consignor, to property on hand, or to a bill of lading made in his name, is a qualified pro-, perty commensurate with and to support his lien, and no more; that strictly and in legal precision of language, the consignor is the owner. The qualified property enables the consignee to sue others for interfering with the goods, enables him to compel a delivery, or to support a claim for damages, and to defeat a claim of the shipper to stop in transitu. Still it is a special property, an ownership as lien holder, and nothing more. It is not absolute, .it leaves the direct title, and something of interest in the consignor. A lien, in its general sense, is the right to retain the property of another to answer a demand. (Bouvier Law Dict., tit. Lien; Peck v. Jenness, 7 How. U. S. R., 612.) The reasoning of the Court in Brownell v. Carnley, (3 Duer, 9,) appears to me to sustain this view.

The 32d section of the statute of Massachusetts (ch. 90, part III, p. 550, ed. of 1836) provides that if the estate that is attached (real property) is subject to a mortgage or other incumbrance, and the mortgage is redeemed, or the incumbrance removed before the levy of the execution, the attachment shall hold the premises discharged of the mortgage or incumbrance, and the execution may be levied with the same effect as if the mortgage or other incumbrance had never existed.

Í may also advert to the cases of Scott v. Whittemore, (7 Fost. R., 309,) and Hill v. Wiggin. (11 Fost., 300.) In these it has been held that where property in the hands of a mortgagee was attached, no one but the mortgagee himself could make an objection as to the right of property being in the mortgagor. The former case was a mortgage of personal property. “ The mortgagee may or may not insist on his rights as mortgagee, and thus avoid the attachment. Until he does so elect, the attachment remains valid, though defeasible.”

Again, it appears to be a well settled general rule, that property which is subject to execution, is liable to attachment. (Handy v. Dobbin, 12 John. R., 220.)

“ Property ” may be taken under the attachment. Its definition by the Code has been before stated. An execution may be against the property of the judgment debtor (§ 286) and the fi. fa. :is to direct satisfaction first out of his personal property, and if enough cannot be found, then out of the real property. It seems a very just inference that by the Code, what may be seized upon execution may be attached.

Now, by .the 20th section of the act “ of executions against property ” (2 R. S., 366,) when goods or chattels shall be pledged for the payment of money, or for the performance of any contract or agreement, the right and interest in such goods, of the person making such pledge, may be sold on execution against him, and the purchaser shall acquire all the right and interest of the defendant, and shall be entitled to the possession of such goods and chattels, on complying with the terms and conditions of the pledge.

It is insisted on behalf of the defendants, White, Warner & White, that the provisions of the statute respecting executions (2 R. S., 365, §§ 13-15,) apply to the present case.

By these enactments, executions bind from the time of' the delivery. If there are several executions issued out of a court of record against the same defendant, that which shall have been first delivered to an officer to be executed, shall have preference notwithstanding a levy first made under another execution; but if a levy and sale has been made under the subsequent execution before an actual levy under the execution first delivered, the goods shall not be levied upon or sold under such first execution. Then the 15th section provides that if there be one or more executions and one or more attachments against the property of the same defendant,, or if there be several attachments, the same rule prescribed in the last section shall prevail in determining the preference of such execution or attachment.

By the 16th section, any execution or attachment issued out of a Court, not of record, if actually levied, shall have preference over any other execution issued out of any Court, whether of record or not, which shall not have been previously levied.

The sale under the subsequent execution is rendered valid.

• The purchaser’s title shall not be defeated by a future levy and sale under the senior execution. But it is said that in making a disposition of the proceeds on such sale, the Sheriff must be governed by the priority in the delivery of the executions to him, unless such prior executions have for some reason become dormant as to the subsequent ones. (Peck v. Tiffany, 2 Comst., 451.)

The revisers, in their note to these provisions, (vol. 3, p. 727,) state that they are conformable to 4 Cowen, 411. There a fi. fa. first delivered to the Sheriff took preference of an attachment levied before the fi. fa. was levied. Lambert v. Paulding, (18 John. R., 311,) was relied upon as decisive. The attachment was from a Justice.

Ray v. Harcourt, (19 Wend., 495,) was decided under the 16th section of the act. A levy was made by plaintiff, a constable, on the 5th of August, 1834, by virtue of three attachments issued by a Justice of the Peace against the property of Clow. The Sheriff of the county of Ulster had received an execution, and had taken some steps towards a levy on the 4th of August, which was held insufficient as to the property in question. The attachments prevailed.

The provisions referred to can scarcely apply to attachments under the absent and absconding debtor act, found in the Revised Statutes of 1830. Those proceedings enured to the equal benefit of all the creditors who might come in. Attachments issued under that act, could not be discontinued without time being given to other creditors to come in. (In the Matter of Bunch, 9 Wend., 473.)

• But there was a series of statutes under which attachments, similar to those of the Code, issued, particularly on proceedings in Justices’ Courts. (1 R. L., 1813, p. 396; Laws of 1824, ch. 238, §§23, 24.) Under-these provisions it has been held that the constable, under an attachment, could take any goods and chattels which could be levied upon by execution. (Handy v. Dobbin, 12 John. R., 220.) That the lien created by an attachment under the act, (session 31, ch. 204, §21; 1 R. L., 1813, p. 398, § 23,) when duly served, was paramount to a subsequent execution or attachment. The lien would expire if the creditor did not prosecute his suit to judgment and execution with due diligence. (Van Loan v. Kline, 10 John. R., 129; Sterling v. Welcome, 20 Wend., 238.)

To attachments of this character, the provisions in the enactment as to executions may well apply.

But a difficulty exists in understanding how these enactments of 1830 can apply to the attachments under the Code of 1848, without special provision making them applicable.

The 232d section, referred to, does not meet the case. The Sheriff is to proceed in the manner required by law in cases of attachments against absent debtors. It prescribes his course of action merely.

The 471st section of the Code provides that the second part of that act shall not affect “ any existing statutory provisions relating to actions not inconsistent with this act, and in substance applicable to the actions hereby provided.1’

The enactment, then, of the Revised Statutes before mentioned, remains in force, but the question still is, has that enactment been made applicable to attachments under the Code.

But if these provisions can in any way be treated as prevailing under the Code, yet it seems clear that if there is no property in the hands of the party, which is the subject of an attachment at the time of notice served, property so subject, coming after-wards to hand, is not affected. If, then, another attachment is levied it must prevail. An attachment takes its effect, not from delivery to the Sheriff, but from its service.

The ground, therefore, upon which I place my judgment in the case, is that before stated, of an actual sufficient attachment of leviable property subject to the lien of Perry, which he alone had a right to say, displaced the effect of the attachment, and as he has been paid the amount of his lien, that property has been left substantially bound.

Pierbepont, J., concurred in the conclusion that the judgment should be reversed, and a new trial granted, with costs to abide the event.

Ordered accordingly.

        Ante, p. 344.