text:
    Jacob Carpenter, plaintiff and respondent, vs. William J. Bell et al. defendants and appellants.
    1. In an action to recover moneys alleged to be due to the plaintiff from the defendant, a defense alleging a mere notice from a third person to the defendant, that he was owner of such moneys, and any cause of action therefor, demanding payment to himself by virtue of an assignment from the plaintiff, is irrelevant.
    2. X defense setting forth supplementary proceedings taken against the plaintiff by a judgment creditor, in which the plaintiff and the defendant had been" forbidden to -transfer, dispose of or interfere with the property of the plaintiff, is not irrelevant.
    3. If the allegations of a defense are pertinent to the controversy, their sufficiency is only to be tested by demurrer or on the trial. A defense set up in an original answer is not to be struck out as irrelevant, merely because the matter of it arose after suit brought.
    (before Bosworth, Ch. J. and White and Monell, JJ.)
    Heard November 7.1863;
    decided November 28, 1863.
    This was an appeal from an order striking out the third and fourth defenses from the defendants’ answer.
    The action was brought against William J. Bell, Robert Courtney and Samuel A. Mills, to recover from them $8200, alleged .to be due to the plaintiff from them, for stocks sold by them as his brokers.
    The answer of the defendants admitted that there was a balance of $5528.70 due from them, upon the transactions stated in the complaint. As a third and fourth defense, it alleged in substance that about the 12th day of June, 1862, a Mr. Cowdrey duly recovered in this court a judgment against the plaintiff in this action, for the sum of $1401.99 ; which was duly docketed, and a transcript thereof filed in the office of the clerk of the city and county of New York. Thereupon Cowdrey duly issued an execution to collect such amount, to the sheriff of such city and county, within which the said Jacob Carpenter then either resided, or had a place of business. Such execution was, sixty days after its issuing, returned by such sheriff wholly unsatisfied. Thereupon after-wards, on the 9th of September, 1863, it was made to appear on behalf of the said Cowdrey, to one of the justices of this court, (Chief Justice Boswobth,) that such judgment had been so recovered, and such execution issued and returned as before mentioned. That such judgment was still wholly unsatisfied, and Carpenter still resided within the city and county of New York; and further, that the defendants (Bell and Courtney) were indebted to Carpenter, or had property of his in their possession, to an amount exceeding $10; whereupon such justice, on the said 9th day of Sept. 1863, duly made an order, requiring the defendants and Carpenter to appear and answer on oath concerning the property of Carpenter, at the chambers of this court before such justice, at a time specified in such order ; and forbidding the defendants and Carpenter to make any transfer or other disposition of or any interference with the property of Carpenter ; of which order these defendants and Carpenter had due notice ; and such order still remained in force. Whereby Cowdrey claimed to acquire a specific lien upon the demand set forth in the complaint in this cause, and solely entitled to collect the same, and. reduce the same into possession ; and that the right of action of the said plaintiff for the same, or any part thereof, was and is wholly suspended.
    As a fourth defense, such answer alleged in substance, That on the 10th day of September, 1863, a Mr. Markham, of the city of New York, caused to be served on these defendants a notice, that he (Markham,) was the owner of the moneys for the recovery of which this action is brought, and also of any and all causes- of action the plaintiff might have against the defeüdants ; and notifying the defendants to pay over such moneys to him, or his authorized attorney, and to no other person 3 as he was the owner of the same, by virtue of a sale and assignment to him by the plaintiff Carpenter.
    The plaintiff moved to strike out such third and fourth defenses, as irrelevant and frivolous, and also that Markham be substituted as plaintiff.
    The motion was heard before Mr. Justice Barbour, at a special term, October 1, 1863, who granted it as to the pleading, without prejudice to the defendants moving for leave to file a supplemental complaint, by way of a cross-action, setting up the same matters.
    From this order the defendants appealed-.

      Samuel G. Courtney, for the defendants, appellants.
    I. The order should be reversed, as both the “third” and “ fourth ” defenses are well pleaded.
    1. The alleged matters could not be taken advantage of except by answer. {Gode, §§ 144, 147, 148, 150, subd. 2.)
    2. The “ third defense ” is an equitable as well as legal one.
    3. The fourth defense existed at the time the answer was put in, and was properly pleaded.
    4. Although the plaintiff, in his motion, asked for the substitution of Markham as plaintiff, he waived that in the argument, and therefore as the case stood at the time the answer was put in, and as it stands now, the fourth defense was and is properly pleaded.
    II. It is not the rule that any matter arising after the commencement of the action, and before answer, can only be pleaded by special leave of the court. The Code intended that any defense existing at the time the defendant answers, can be set up by way of answer. (Code, §§ 150,177. Willis v. Chipp, 9 How. 568. Williams v. Hernon, 16 Abb. 173.)
    III. The plaintiff could not, under the third defense, make this motion.
    1. The plaintiff was forbidden by the order referred to in the third defense, from making any transfer or other disposition, or any interference with his property.
    2. Such a motion is a direct violation of the said order, and an avowed contempt in the presence of the court, making such order.

      A. R. Dyett, for the plaintiff, respondent.
    I. The matter pleaded arose after the commencement of suit, and could only be pleaded by way of supplemental answer by leave of the court. {Gode, § 177.)
    II. The matter was only a partial defense, and a defense must be to the whole cause of action.
    III. The defenses, at best, were “transfers of interest” after suit commenced. {Gode, § 121.) They were not defenses to the action, any more than they would have been before the Code.
    IY. The supplementary order set up, created at best but an inchoate lien in the creditor. No final order had been made. Could the court at nisi prius direct a verdict for the defendants on those issues ? Clearly not, and therefore it is no defense.
    Y. The defendants are not without remedy. The proper course was for the defendants to go on and try the action, and if a recovery was had, to apply to the court by.motion to stay the "collection of the judgment until the supplementary proceedings were at an end, or they might be relieved under section 122 of the Code, .
    YI. But the supplementary order has since been vacated and set aside, and the court ought not to entertain this appeal.
   By the Court, Bosworth, Ch. J.

Appeal- by the defendants from an order dated Oct. 1, 1863, striking out the defenses marked third and fourth, as irrelevant and frivolous.

There is no provision in the Code, authorizing a defense to be stricken out as frivolous. Sham and irrelevant answers may be stricken out. (Gode, § 152.) A plaintiff may demur to an answer containing new matter, where upon its face it does not constitute a counter-claim or defense, and a plaintiff may demur to one or more of such defenses. (Gode, § 153.) If an answer be frivolous, the plaintiff may move for judgment on that ground. (Gode, § 247.) If the motion be granted, the answer is not stricken out, but remains on the record. (Briggs v. Bergen, 23 N. Y. Rep. 162.)

The order can be upheld if these defenses are irrelevant, but not otherwise. A defense is irrelevant which -has no substantial relation to the controversy between the parties to the action. Kurtz v. McGuire, (5 Duer, 660,) is an illustration. The allegations constituting the defense marked fourth, even if true, have no substantial relation to the controversy between the parties. They do not tend to show any averment of the complaint to be untrue, nor present any ground for denying to the plaintiff a recovery of the whole amount claimed. Any mere notice that third persons may have given to the defendants, is wholly extraneous to the controversy, and is clearly irrelevant.

The allegations forming the third defense, are pertinent to . the controversy". "Unless their effect be avoided by facts not appearing on the record, they show prima facie, that R. A. Cowdrey has acquired a lien on the amount due from the defendants to the plaintiff to the extent of the amount of his judgment. But until an order is made that the defendants pay such amount to Mr. Cowdrey, his right to receive it from the defendants is not absolute. The defendants and Carpenter are enjoined from making “ any transfer, or other disposition of or interference with the property of said Carpenter,” assuming the order to be correctly described in the answer.

Whether this does or does not interfere with the plaintiff’s and defendants’ right to litígate the suit and determine, by a verdict, the extent of the defendants’ liability, need not now be decided. If an order to pay Cowdrey shall then have been made and be in force when a verdict shall be rendered, it will protect and prohibit the defendants from paying pro tanto to Carpenter. That there are not enough allegations to make a perfect or partial defense, may render it demurrable, but this does not make it irrelevant. The allegations are relevant or pertinent, but insufficient, perhaps, to constitute a defense. Whether they constitute a defense, must be determined upon a demurrer to this defense, or at the trial.

As to the suggestion .that the facts constituting this defense, arose since suit brought, and can only be set up on a supplemental answer on leave of the court first had, it may be replied that no answer had been put in prior to the one in question. There is no answer to which a supplemental one can be made. The defense is none the less relevant, even if it be true that the answer is irregular because put in without leave of the court. All that can be said in that view of the law is, that the answer was interposed irregularly, but not that the matter in it is, for that reason, irrelevant.

There is another answer to the suggestion. In actions- at law, prior to the Code, a defendant could plead as a matter of course and of right, any defense arising after suit brought and before the time to plead had expired. But instead of being pleaded in bar, it was plead to the further maintenance of the suit. (Covell v. Weston, 20 John. 414. Boyd v. Weeks, 2 Denio, 321, 322. 3 Chit. Pl. 906, 913.) This, however, was a matter of form, rather than of substance. If true and sufficient, it prevented a recovery by the plaintiff.

The same rule obtained in the Court of Chancery. A defendant could state in his own answer matter arising before it was put in and after suit brought. (Lyon v. Brook, 2 Edw. Ch. 110.)

The question in cases arising under the Code, was decided the same way, by an able judge, in Willis v. Chipp, (9 How. Pr. 568.) Ho adverse decision has been .cited. The defense could not be struck out as irrelevant, merely because it arose after suit "brought. It was discretionary with the judge to refuse to permit Markham to he substituted as plaintiff.

So much of the order as strikes out the third defense as irrelevant, should be reversed ; in other respects it should be affirmed, without costs to either party.


source: Caselaw Access Project

author: By the Court, Monell, J.

license: Public Domain

text:
    Mahlon and John B. Mattison, plaintiffs and appellants, vs. William P. Demarest, et al. defendants and respondents.
    1. No other creditors of a debtor acquire any vested rights in an action brought by some of his creditors against him and others on behalf of themselves and all others similarly situated, who shall come in and contribute to the expenses of such action, except those by whom such action shall be instituted, until after judgment in that action. Until that time, the plaintiffs and defendants in such action may prosecute or defend it as they think proper, without regard to the claims of other creditors. The court, therefore, will not, at the instance of such creditors, declare by an order in such action, that it is to be considered as prosecuted for their benefit from its commencement, so as to preclude the defendants from procuring a discontinuance by satisfying the judgment which formed the foundation of such action.
    2. Whether other creditors can come ,in after judgment, unless executions upon their respective judgments were returned unsatisfied before the commencement of the creditors’ suit 1 Quere.

    Before Bosworth, Ch. J. and Monell, J.
    Heard November 12, 1863;
    decided December 6, 1863.
    This was an appeal from an order made at special term, by Justice Barbour, on the 31st of October, 1863.
    The plaintiffs were judgment creditors of the defendants Demarest and Middleton.
    The action is brought by the plaintiffs “ in behalf of themselves and all other judgment creditors of Demarest and Middleton, who are willing to come in and participate in the reliefer judgment in the action, and contribute to the expenses thereof,” for the purpose of setting aside an assignment made by Demarest and Middleton to the defendant Powers, as having been made with intent to hinder and delay their creditors, and for payment of the plaintiffs’ judgment ojit of the assigned property. A previous decision in this cause, upon another appeal, affecting none of the defendants hut Smith, is reported ante 707, subnom. Mattison v. Smith.

    Upon affidavits of the recovery of judgments by other creditors of Demarest and Middleton, a motion was made, on notice, that the creditors in those several judgments be made plaintiffs in this action, they desiring to become such, and that the complaint be amended by inserting allegations of the recovery of such judgments, &c. appropriate to the case, or “ that this action be deemed to have been commenced and be prosecuted for the benefit of the plaintiffs in the said several judgments, as of and from the time of its commencement, without the right of the defendants to claim a discontinuance of it upon payment of the judgment specifically described in the complaint, and with the same right to the said judgment creditors to come in and claim under the final judgment in this action, as if they had been plaintiffs named in the summons and complaint.”
    The motion was denied, and the plaintiffs appealed.

      John Graham, for the plaintiffs, appellants.
    I. It is difficult to see why the motion denied should not have been granted, unless those obtaining judgments against the assignors, pendente lite, can not participate in the final judgment in this action, and it is therefore held to be brought exclusively for the benefit of judgment creditors existing when it was brought. As to the practice under the old system, see Morris v. Mowatt, (4 Paige, 142 ;) 1 Barb. Ch. Pr. 521, 522.
    II. Under section 173 of the Code,, the court can add parties, before or after judgment, in furtherance of justice.
    III. If our view is not correct, instead of the action being brought in behalf of judgment creditors generally, willing to contribute, &c. it should have had the additional qualification, “ existing at the commencement of the action.”
    IY. Under the old system, there was a difference between courts of law and courts of equity as to the grouping together or combination of parties. The latter proceeded .upon its favorite maxim, of preventing a multiplicity of suits, and hence was liberal in the allowance of parties. Courts of law could not so act, Their framework forbade it.
    How,, the Code,.(§ 119,) gives one rule as to all actions, although such as were formerly equitable, are probably the only ones to demand the benefit of the rule.
    Y. The error of the- decision appealed from was, in interpreting section 119 to embrace an existing class, when the action was brought. Held that the judgment creditors must exist at the time the suit was brought, to come within this section, and be a class within its meaning.
    YI. The class contemplated are judgment creditors, it is true, but judgment creditors, in right of debts, as against which the assignors perpetrated the fraud in question. The judgment is the mere legal ascertainment of the existence of the debt. It relates to the debt as of the time when it was contracted. It is the debt which vitiates the fraud. The judgment, and the exhaustion of remedies under it, are the preliminaries to maintaining an action of this character.
    YII. Section 119 of the Code applies, 1. Where there is a common interest in many persons. 2. Where the parties are very numerous, and it is impracticable to bring them before the court. It proceeds upon the old chancery rule, of preventing a multiplicity of suits. The cases on this subject are well collected in The New York and New Haven Railroad Co. v. Schuyler, (17 N Y. Rep. 592.)
    YIII. The rule of James v. Lansing is not to be retained as the law under section 119 of the Code.

      W. H. & S. P. Bell, for the defendant Smith, respondent.
    I. The parties applying to be let in as plaintiffs are too late.
    1. It appears on the face of the affidavits upon which they make their application that the cause of action of each arose subsequent to the commencement of the original action.
    2. To entitle them as judgment creditors to proceed against the assignor, they must have judgments unsatisfied—an execution returned unsatisfied —before an action can be commenced. (2 R. S. 173, § 41.) They had neither.
    II. Every action must be prosecuted by the real party in interest. (Gode, § 111.) All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs. (Gode, § 117.) The action is commenced when the summons is served on the defendant. (Gode, § 99.)
    The cause or right .of action of the parties applying did not exist in any of them at the commencement of this action, and they are not the persons having an interest in the subject of the action or in obtaining the relief demanded when the action was commenced.

    III. The parties applying to be made plaintiffs were not united in interest with those who brought the action, at its commencement, so as to make it compulsory for them to he joined as plaintiffs. (Gode, § 119.)
    It is doubtful whether judgment creditors are embraced in this section.
    IY. There is no existing statute or rule .by which these parties can demand to be let in as plaintiffs nunc pro tunc, so . as to have relation back to transactions done in good faith by the assignee, before they had a cause of action. Whatever is done in good faith by the assignee before the assignment is declared void, is well done. (Wakeman v. Grover, 4 Paige, 42. Burrill on Assignments, 505, 545.)
    Y. If there be several parties having a common interest, one of them may bring his action in his own right and on behalf of others having a common interest, but the nature of their common interest must be such as would entitle them, were they all before the court, to maintain the action in their own right or in their own names. (Habitch v. Pemberton, 4 Sandf. 657. Smith v. Lockwood, Code Rep. N. S. 349. 13 Barb. 218.)
    How the plaintiffs in their complaint profess to commence the action for themselves and all other judgment creditors of Williams, Demarest and G-. A. Middleton, who are willing to come in and participate in the relief or judgment in this action and contribute to the-expenses thereof, and the plaintiffs therein complains, &e. They profess to bring this action for imaginary parties, men of straw, at the commencement having no existence in reality, but made such afterwards.
    These subsequent judgment creditors can not by this movement take precedence of other simple contract creditors provided for in the assignment. Their remedy is, if the present plaintiffs succeed, to ask to come'in at the foot of . the' decree, as was the practice in the Court of Chancery in similar cases, which practice in equity has not been abolished by the Code. (4 Paige, 142.) The 173d section of the Code is not a substitute for this practice. (See Rules of Chan. 1837, rule 43, 190 and notes.)

    VII. They have not such an interest as would entitle them, by section 122 of the Code, to be made parties plaintiffs, as this section relates to recovery of real or personal property specifically. (Judd v. Young, 7 How. 79. Tallman v. Hollister, 9 id. 508.)
   By the Court, Monell, J.

The first branch of the motion was in effect abandoned on the argument.

The second branch proceeds upon the apprehension that the defendants may pay the judgment of the plaintiffs, and compel a discontinuance of the suit; in which event the other creditors, who now seek to come in, would be deprived of the benefit of the present action.

The defendants have answered the complaint, and, it would seem, intend to contest the plaintiffs’ right to the relief they seek, and there is no proof before us of any intention to pay the judgment, or to procure a discontinuance of the suit.

The action purports to have been instituted by the plaintiffs in behalf of themselves, and of all other judgment creditors who might desire to come in and participate in the benefits of the suit; and it is claimed that the creditors now applying to come in, should be deemed to be plaintiffs from the commencement of the action, and that the suit should not be discontinued without payment of their judgments.

This certainly is a novel motion, and is without precedent in the books.

It was long since decided by the chancellor, (Edmeston v. Lyde, 1 Paige, 637,) that a creditor might file a bill in behalf of himself and all other judgment creditors Who might choose to come in under the decree and contribute to the expenses of the suit. It was necessary, however, that such creditors should stand in the same right with the complainant, and that they should have had executions upon their judgments returned unsatisfied.

In the case before us no such right is shown. On the contrary, it appears that at the time of the commencement of this action, executions upon the judgments in favor of the creditors who now apply, had not been returned. They were not, therefore, at that time, in a condition to have instituted a suit for the equitable relief demanded in this action.

The rights of creditors for whose benefit a suit of this nature was instituted, were to come in wider the decree, prove their judgments and executions returned unsatisfied, and participate in the fund discovered by the suit. They never became parties to the suit, and were only entitled to come in' after the decree. The suit proceeded to decree in the name, and upon the judgment of the original plaintiff, and he might, prosecute it with dispatch or dismiss it altogether, at his election, notwithstanding the bill was filed in behalf of himself and of all other creditors. (Innes v. Lansing, 7 Paige, 583.) The reason was, that each creditor whose execution had been returned unsatisfied, might file his bill. But the moment-the decree was entered in the suit, the rights of the other creditors attached to it, and the proceedings in all the other suits, were or might be stayed.

The rule then, in chancery, was, that notwithstanding the bill was filed for the benefit of all the creditors, the defendant might pay the judgment and costs, and procure a dismissal of the bill.

Has this rule been changed by the Code ? The right to file a bill by a creditor, after the return of an execution unsatisfied, as provided in- the Revised Statutes, (2 B. S, 173, orig. p. § 38,) has not been abrogated by the Code, (Neustadt v. Joel, 2 Duer, 530,) and the jurisdiction exercised by the chancellor, under the statute, is now exercised by this court.

The essential ingredient in these suits, is the return of an execution nulla tona. Until this is done, the creditor has no right to claim equitable relief.

It is said that the 119th section of the Code has changed the rule. That section provides that when the question is one of a common or general interest of many persons, &c. one or more may sue for the benefit of the whole. The provision is new, and has not, I believe, received a judicial construction as to its intended effect. Probably it is a mere enactment of the rule of the court of chancery, and was intended to apply to those cases where parties might make a common suit. Whether this be so or not, there is nothing in the provision which gives to it the effect of depriving a plaintiff, suing for a common benefit, of all right of control over the suit. Hor does it, in my judgment, confer any power upon the court to restrain a plaintiff thus suing, from dismissing his suit.

Creditors, not parties to the suit, acquire no vested rights until the judgment, when they may come in and prove their claims; and the plaintiff and defendant must be left, until judgment, to prosecute and defend upon the principles applicable to the case, without regard to any supposed injury which the other creditors may suffer.

In the view I have taken, it is not necessary to determine whether these creditors are in a condition to come in. Their executions were all returned after the commencement of this suit. It would seem to be quite well settled that even after judgment they could not be allowed to prove their claims. (Parmelee v. Egan, 7 Paige, 610. Cook, v. Smith, 3 Sandf. Ch. 333.)

But I can find no authority for granting the plaintiff’s motion. The rule on the subject was well settled before the Code, and the Code has not changed it.

■ The creditors are not without an adequate remedy. They may wait until judgment is obtained in this action, and then come in; or bring suit at once on their judgments. If they wait, they must take the risk of having the suit discontinued on payment of the plaintiff’s judgment and costs. We can not restrain them.

I think the order should be affirmed, with $10 costs.


author: Robertson, Ch. J. McCunn, J.

text:
    Samuel B. Deming, plaintiff and respondent, vs. Benjamin Bailey, defendant and appellant.
    1. A loan of shares of stock, accompanied by a power of attorney to transfer the stock, for the special purpose of being used by ttie borrower in his business, will not authorize him to sell such substituted stock and assign his claim to the proceeds of such sale to a third person. The fact that the borrower is the husband of the lender, will make no difference, if the stock be her sole property.
    2. Any sale by the borrower, in such a case, of such substituted stock, which becomes the property of the lender, by being bought with her means and with her sanction, when made without the authority of the lender, becomes a wrongful conversion of it by him. But if she ratifies it, she will be entitled to the proceeds of the sale.
    (Before Mom chief, Robertson and Monerl, JJ.)
    Heard January 4, 1864;
    decided January 5, 1864.
    This was an appeal by the defendant from a judgment in favor of the plaintiff, entered on the verdict of the jury, and also from an order denying; a new trial.

      The complaint alleged that on the 15th day of March, 1860, one Egbert Deming sold and delivered to the defendant herein, twenty shares of St. Nicholas Insurance Company stock, at the rate of twenty dollars per share, amounting to the sum of $400; that $102 had been paid on account, and that there remains due $298, with interest, That on the 30th day of June, 1860, Egbert Deming sold and transferred to the plaintiff the aforesaid claim. The answer put in issue all the allegations of the complaint.
    On the trial Egbert Deming was examined as a witness, in behalf of the plaintiff, and testified that on the day mentioned in the complaint, he sold to the. defendant twenty shares of St. Nicholas Eire Insurance stock, at 80, amounting to $400, That the defendant paid him $75 on account of the purchase money, at the time of the sale, and promised to pay the balance in about ten days ; and about two or three weeks after the sale, he paid $27 more, on account. That at the time of the sale the stock stood-on the books of the company, in the name of Benjamin Bailey, the brother of the defendant. That the witness made a loan on that stock, in connection with sixty shares of Knickerbocker Life Insurance stock. That the balance of the price not being paid, he, the witness, on the 30th of June, 1860, assigned the claim therefor to the plaintiff, who was now the owner of the same. Being asked where he got this stock, the witness answered that he bought it of Greorge. R. Howell, and gave him, in exchange, some stock of the Hydeville Marble Company, which belonged to his (the wit» ness’) wife ; that she gave him a blank power of attorney to transfer it, and with that he purchased the stock in question, and took it in his own name ; that it never stood in her name, and he never purchased it of her. That he used the stock in his business, without objection on her part. That he told his wife that he had made the transfer, and had got possession of the stock ; that he informed her he had hypothecated it, and borrowed money on it.
    Elizabeth T. Deming, the wife of Egbert Deming, was also examined as a witness, and testified that she at one time owned some Hydeville stock, which she authorized her husband to sell; that when she gave him the power, of attorney to sell the stock, she did not know what he was going to do with the stock; that she gave it to him to use for his business purposes. That he did not then tell her what he did with it, hut did afterwards tell her that he had got a loan on it; that he used the money obtained upon it, in his business.
    The jury rendered a verdict in favor of the plaintiff, for $359.05.

      E. Pierrepont, for the defendant, appellant,

      J. Wilson Green, for the plaintiff, respondent.
   Robertson, Ch. J.

A motion to dismiss the complaint was made on the trial of this action, on behalf of the defendant. The only ground suggested for it was, that no cause of action had been proved. This, of course, would not include a variance between the cause alleged in the complaint and that proved, but embraced a failure to prove the plaintiff’s right to the proceeds of the stock alleged to have been sold to the defendant. That right would depend on the question of ownership of such stock, and if that were established to have belonged to Mrs. Deming, would involve the right of her husband to sell and transfer her claim to such proceeds to the plaintiff. The first question, therefore, to be disposed of is, whether there was any evidence of the ownership of such stock by the plaintiff's son. If not, and the stock was his wife’s property, was there any evidence of her authority to him to sell it or transfer the proceeds ?

The stock in question was procured from a Mr. Howell by the plaintiff’s son, in exchange for stock in a marble company (the Hydeville) belonging to Mrs. Deming, transferred under a power given by her to her husband to do so. Mrs. Deming testified that she authorized her husband to sell the Marble Company stock ; she did not know what he was going to do. with it, when she gave him such power of attorney to transfer it, but gave it to him to use for his business purposes. He did not tell her then what he did with it, but did afterwards ; he told her he had got a loan upon it, and did not give her any of it, but used it in his business, for which she gave it to him. That she had no claim for this, and never pretended to have any. She did not testify to any other authority given by her to her husband to sell the Insurance Company stock, or assign any claim for the proceeds.

Egbert Deming (the husband) testified that after such acquisition of the Insurance Company stock, he told his wife he had made the transfer, and “got possession of the stock,” and that his wife purchased it of Mr. Howell. He admitted that he had stated on a former trial, that the Insurance Company stock belonged to his wife, and he believed so, and stated further that her interest had not changed since such trial. That stock stood in his name, until sold.

Undoubtedly, the authority from Mrs. Deming to njake the exchange of shares of stock was complete, but that did not make the Insurance Company stock the property of her husband. According to her testimony, her only authority to hiip was to use the power of attorney for his business purposes, and he did so by procuring the new stock in place of the old. He also seems to have borrowed money on it, with her sanction; but there is no evidence that he ever informed her of any sale to the defendant before the" commencement of this action, or that she ever authorized him to do any thing with such new stock. The stock was clearly hers, bought with her means, by her sanction, and if sold by her husband without her authority, was wrongfully converted by him ; and she alone had a right to the proceeds of the sale. His marital rights gave him no greater authority to dispose of' her property without her consent than the ordinary agent of one who was a stranger to such agent would have. If the rights of a married woman, when authorized by law to own and dispose of her property, •free from the control of her husband, are to be protected at all, she cannot be deprived of them by her husband, by any means short of those which would be required in the case of a stranger. And on the other hand, third persons, dealing with either husband or wife, in regard to her property, are entitled to be protected against a double claim, The fact of the stock standing in the name of Deming (the son) would, perhaps, have excused the defendant^ if he had paid the proceeds to him ; but there is no evidence in the case of any authority from Mrs. Deming to sell her claim against the defendant, if any, to the plaintiff. It would seem, from the testimony of Deming, (the son) that she had, at some time, assigned her interest in such stock to the plaintiff, but that would not carry her right to the proceeds, (1 Comst. 522,) even if made before the commencement of this action, of which there is no evidence.

Whatever may, therefore, have been the right of Mrs. Deming to sue for the proceeds of the stock in question, there was no evidence that it ever passed to the plaintiff. Her disclaimer on the trial is of no avail”, as it was since suit brought. The complaint should have been dismissed for the failure of the plaintiff to prove the derivation of his title to the claim in controversy, through some duly authorized agent of Mrs. Deming.

The judgment should be reversed, and a new trial had, with costs to abide the event:

McCunn, J.

This action was brought against the defendant, on a certain contract, to recover the sum of #298, with interest. The plaintiff alleges that Egbert Deming sold to the defendant twenty shares of the St. Nicholas Eire Insurance Company stock, at $25 per share, amounting to the sum of $400. That only a part of the consideration money was paid at the time, leading a balance due of $298. That said Egbert Deming, on the 30th day of June, 1860, duly assigned that balance to the plaintiff, Samuel B. Deming, for the recovery of which he brings this suit. To establish his cause of action, the plaintiff called said Egbert Deming to prove the sale of the stock by him, to the defendant, and also to prove the assignment of the claim to the plaintiff. He swears that the consideration with which he purchased the stock in question belonged to his (Egbert Deming’s) wife y that she gave him a blank power of attorney to transfer other stock, and that with the proceeds of the transfer he purchased the stock, which he swears he sold to the defendant.

This case was tried twice. On the first trial he swore the stock belonged to his wife, and that he merely borrowed the money on the same for her ; and, on the second trial, he swore that that which he swore to on the former trial Was true and correct. He swore he never bought it of his wife; that the stock was bought for his wife, and was bought with her property ; that her interest was the same as it was at the former trial, and that it has not changed since then.

On this state of facts, When the plaintiff rested, it clearly appears the stock and the proceeds thereof belonged to Mrs. Deming, and the court below should, of its own motion, have nonsuited the plaintiff. There being no evidence, until that time, vesting the plaintiff with a cause of action, although Deming, the assignee, swore that the stock was not his, but his wife’s, and that he had a power of attorney to dispose of the stock for her, I can find no testimony in the case, showing that that power gave him the legal right to appropriate the proceeds of said stock to his own use. Taking his testimony on the former trial, (which he swore on this trial was true,) and the testimony on this trial together, his evidence does not establish at law a good cause of action. There being, however, no motion for a nonsuit on the part of the defendant’s counsel, when the plaintiff rested, perhaps the learned judge who tried the case was justified in going on, and hearing all the evidence.

I believe, however, that after both parties had rested, and after all the proof was in, the plaintiff had no stronger cause of action than he had at the time he rested, and "the learned judge, when he submitted the case, erred in charging the jury “ That if they believed the assignor, Egbert Deming, in what he had sworn to, they must find for the plaintiff.”

I am of opinion,- that taking all the testimony together, and believing the same to be trite, such testimony' did not, in law, vest a title to the stock in question, or the proceeds thereof, íü Egbert Doming, the assignor, and he having no title, could pass none. At the close of the evidence, the learned judge should have granted the defendant’s motion for a nonsuit.

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

Moncrief, J. concurred.

New trial granted.


author: Monell, J.

text:
    John McDonald, plaintiff and appellant, vs. Samuel Lord et al. defendants and respondents.
    1. An agent, while in the employ of his principal, has no right to abuse the confidence reposed in him, to his oivn advantage, or to the injury of his principal. If employed to sell goods, he cannot himself become the purchaser.
    2. A merchant who has employed a person as clerk and salesman, for a stated period, has a right to rescind the contract and discharge him, when such employer discovers that such clerk, being interested as partner in another firm engaged in the same business, persists in selling the goods of such employer to such firm, on credit, contrary to orders.
    (Before Robertson, Oh. J., Moncrief and Monem, JJ.)
    Heard January 14;
    decided January 30, 1864.)
    Appeal from a judgment. The plaintiff’s assignor, John 0. Boak, was employed by the defendants as manager of their carpet department, in their store in this city, at a salary of $1400 per year, from the 9th of January, 1860. On the 7th of July, 1860, Boak was discharged by the defendants from their service. Boak obtained other employment at a less salary, and the action was brought to recover the difference, for the unespired part of the year, between the salary agreed to be paid by the defendants, and that which Boak obtained elsewhere after his discharge. Boak testified that one of the defendants told him that he (Boak) had an interest in another carpet house in this city, and if such was the case, he could no longer continue with them. He further testified, “ X did not tell Mr. Lord that I was interested- in the firm of Beattys & Co.; I declined to tell Mr. Lord that I was ; he asked me the question, and I declined to anstoer ; I told him I considered it would make no difference to Lord & Taylor; that it was my business what investments I made with my funds; I became interested in the firm of Beattys & Co. on January 1, 1859; the firm of Beattys & Boak commenced on the 13th January, 1862, in the carpet business at No. 8 Fourth avenue; they kept a store therein 1860; the way I was interested there was, I had money there; I had money invested in the house; any definite amount I could not state that I was to receive for my interest; it was dependent upon the profits; I told Mr. Lord I considered it exclusively my business; I think Mr. Lord told me they could not have any one in' their establishment, who was interested in any other house; he told me, if I was so interested elsewhere, I could no longer remain with Lord & Taylor; I sold Beattys carpets; I never received any instructions from the cashier to sell nothing further to the Beattys in the month of May, 1860; I was told some time in the month- of May or June, 1860, to sell no more goods to Benjamin Beattys on credit; that .was the only instruction I ever received in the matter; I think Mr. Wilson showed me a letter written by John T. Lord in the Broadway house, instructing him to see that no more goods were sold to Benjamin Beattys on credit; Wilson had not> previous to that, directed me not to sell to Beattys; I had.not refused to obey his directions; this note was not, to my knowledge, sent from John T. Lord, in consequence of my refusal.
    “ Q. And didn’t you, after getting this direction in May or June, continue to sell to Beattys ? Didn’t you direct the entry clerk to make entries to Beattys ?
    “ A. I have stated I sold goods to Beattys after seeing that letter of Lord’s; it was after that that Lord came over and had this conversation, and asked me if I was so interested; Lord, when he discharged me, said he understood I was interested in the concern of Beattys; I told him that I did not hold myself.responsible for current reports; he wanted an explicit answer whether I was interested in it or not; I told him I considered it exclusively my own business what use I made of money or any moneys I might have; either before or after my using that expression, he said that I could not he interested elsewhere and remain with the concern of Lord & Taylor; I had no reply to make to that; I went with the house of Barnum, Sutton & Co. on the 16th July, 1860/’
    He further testified that he did not spend any of his time at the store of Beattys & Boak; and that it did not in any way interfere with the discharge of his duties with the defendants; that he never purchased goods for Beattys & Boak; and that he sold the goods of the defendants to them as he sold to any one else. '
    The defendants proved that the entry clerk was instructed by them not to enter sales to Beattys on credit; and that Boak was so informed; and that Boak told the entry clerk to enter any goods on time to a certain amount, and he would he responsible.
    The justice dismissed the complaint, and from the judgment of dismissal the plaintiff appealed.

      John Hewitt, for the appellant-.

      W. R. Stafford, for the respondents.
   By the Court,

Monell, J.

If the defendants dismissed Boak from their service, because of any disobedience of their lawful orders, I think there was sufficient conflict in the evidence on that subject, to have required the case to go to the jury. Boak was directed not to sell any more goods to Beattys & Boak on credit; and it was in evidence, although contradicted by Boak, that after such direction he continued to make sales to that firm; such disputed evidence would have Been proper to have gone to the jury, and it would have been error to have taken the question from them.

But there is another ground upon which it is proper to assume that the learned justice put his decision. The contract Was an entire one; and the defendants could not without justifiable cause, lawfully terminate it within the year. The evidence shows that Boak, at the time of, and during all of his employment by the defendants, to the time of his discharge, as the manager of their carpet department, was interested as a partner in the carpet house of Beattys & Boak, Ho. 8 Fourth avenue; and that he sold the goods of the defendants to the firm in which he was interested. The fact of such connection of their employee with the firm of Beattys & Boak, did not come to the defendants’ knowledge, until shortly before his discharge; and the only ground assigned for the discharge, was such connection and interest, and the sales by him of the de-° fendants’ property, substantially to himself.

It is a well settled principle of morals as well as of law, that the agent must faithfully serve his principal. However unquestionable may be the honesty of the agent, or • his impartiality between his own interests and those of his principal, he is bound to the exercise of all his skill, ability, and industry, in favor of his principal. As an agent to sell, it is his duty to get the highest fair price; and such duty is wholly incompatible with his wish to buy. In every trust this principle prevails. Ho.agent or trustee can deal with the subject matter of his trust, except for the benefit of his principal. Executors and administrators are expressly forbidden by statute, (2 R. S. 104, § 27,) from purchasing the property of their testator or intestate; and the rule in equity is, that any act by an agent in respect to the subject matter of the agency, injurious to the principal, may be avoided by the principal. And where an agent to sell becomes the purchaser, the court will presume that the transaction was injurious; and will not permit the agent to contradict the presumption. (Coles v. Trecothick, 9 Ves. 234, 247.) The policy of this rule is obvious. The confidence reposed in the agent must not be abused. His position of trust must not be employed to his own advantage, or to the injury of his principal. In short, while in the employment of his principal, his principal’s interests must be his interests; and he may have no interest, which, conflicting with those of his principal, can work injury to the latter,

Boak was the agent of the defendants to sell this property; and could not become the purchaser, without violating the duty which the trust imposed upon him. He did virtually become the purchaser of the goods he sold; and his interest in the purchase was incompatible with the defendants’ interests, It is not necessary to draw fine distinctions. There is no evidence in the case, of positive unfairness or fraud on the part of Boak, in making sales to Beattys & Co. There is no imputation upon his character, nor suspicion that he made more favorable sales to the firm in which he was interested than to others. It is enough that the law presumes such sales to be injurious to the principal; and the plaintiff is not permitted to rebut the presumption. (Dobson v. Racey, 3 Sandf. Ch. Rep. 60; S. C. 8 N. Y. Rep. 216.)

Upon principles so obvious and just, the facts of this case, in my judgment, afforded the defendants a full and complete justification for recinding their contract with Boak, and discharging him from their service.

The learned justice was, therefore, correct in dismissing the complaint.

I am of opinion the judgment should he affirmed.


author: Moncrief, J. Robertson, Ch. J.

text:
    Theodore Reimers et al. plaintiffs, vs. John P. Ridner, et al. defendants.
    1. A sale of goods “ to arrive,” is a mere executory contract, conditional on tlieir arrival, and not a transfer of title; and the purchaser may reject a partial and insist upon a full performance of the contract. If less than the amount contracted for arrives, he is not hound to accept that as a performance.
    2, The plaintiffs sold to the defendants a certain number (733) of bags of crude saltpetre, at a spbified price (15 cents) per pound, cash in boud, to arrive on board a certain ship, (Arabella,) without guaranty as to quality, or time of arrival of the ship, The ship arrived with part (340 bags) of the saltpetre in an unsound and ■unmerchantable condition. The plaintiffs tendered the portion in a sound condition (393 bags) to the defendants, who refused to accept or pay for the same. Held that a tender of less than the whole quantity of saltpetre sold, did not satisfy the requirements of the contract, and the defendants were'not bound to accept it.
    Before Robertson, Ch. J., Moncrief and Monell, J.J.)
    Heard January 4, 1864;
    decided January 30, 1864.
    The complaint in this case alleges that the defendants, on or about the 25th day of September, 1855, at the city of Hew York, entered into a contract in writing with the plaintiffs, whereby the defendants bargained for and bought of the plaintiffs, and the plaintiffs, at the instance and request of the defendants, then and there “ sold to the defendants seven hundred and thirty-three bags of crude saltpetre, at fifteen cents per pound, cash in bond ; that the same was to arrive on board the ship Arabella-, from Calcutta bound to Boston ; no guaranty as to quality, or time of arrival of said ship5 and the same to be taken when landed from alongside the ship in Boston.” That the said ship with the saltpetre on board arrived at Boston on or about the 3d day of December, 1855; ® * ® ® that immediately after the arrival of the said ship as aforesaid, to wit, on or about the 11th day of December, 1855, the plaintiffs offered and tendered said saltpetre to said defendants,” &c. ® * ® That the defendants, at the time aforesaid, when so requested, and at all times thereafter, have neglected and refused to receive said saltpetre, or any portion thereof, or to pay for the same, and then and there and at all times thereafter, have wholly neglected and refused to comply with their undertaking or contract.
    The complaint further shows, " that on or about the 24th day of December, 1855, upon inspection of the said saltpetre, three hundred and forty bags thereof were found to be unsound and unmerchantable, and that thereupon the plaintiffs waived their right to accept the whole amount or number of bags of saltpetre, but tendered and offered to deliver to the defendants the remainder thereof, to wit, three hundred and ninety-three bags thereof, (being sound and merchantable,) * ® ® and the plaintiffs were then ready and able and willing so to deliver the said saltpetre ; that the defendants at the time aforesaid, and at all other times, have neglected and refused to receive said saltpetre, or any portion thereof, or to pay for. the same, and have wholly neglected and refused to comply with their said undertaking or contract.”
    The answer of the defendants denies that they bargained for and bought of the plaintiffs, and that the plaintiffs sold to them, seven hundred and thirty-three bags of crude saltpetre, or any part thereof; but'the defendants aver that on or about the 25th day of September, 1855, they, the defendants, entered into a contract with the plaintiffs, of which the following is a copy:
    “Few York, September 25th, 1855.
    “ Sold to Messrs. Ridner, Thiel & Oo. for account of Messrs. Reimers & Schmidt, seven hundred and thirty-three bags crude saltpetre, at 15 cents per lb. cash, in bond, to arrive on board the ship Arabella, from Calcutta bound for Boston. Fo guaranty made as to quality, or time of arrival of said ship ; to be taken when landed alongside of the ship in Boston.
    (Signed,) Babcock & Cox, Brokers.”
    * * -» The defendants deny that they ever became the owners of any part of said saltpetre. * * * They aver that the plaintiffs never were the owners or possessed of other than three hundred and ninety-three bags of saltpetre on board of said ship Arabella, * * and they deny neglect or refusal to comply with their undertaking or contract. * * *
    It seems that an invoice of 1467 bags of saltpetre was shipped on board the ship Arabella ; that this shipment belonged to W. S. Bullard, and was the only saltpetre on board of that vessel; that on the 11th August, 1855, for account of the said W. S. Bullard, Esq. a broker in Boston “ sold to the Hazard Powder Co. one half of an invoice of saltpetre to arrive per ship Arabella from Calcutta, say about 783 bags, more or less, (inv. 1468 bags,). at 8 cents per lb. 6 months credit from delivery on the wharf. Fo guarantee as to quality or time of arrival.” It further appears that on the 12th September, 1855, a contract, of which the following is a copy, was duly made by a broker and confirmed by said Bullard ;
    “ Boston, Sept. 12, ’55.

    “ Sold on account W. S. Bullard, Esq. one half of 1464 bags saltpetre, on board the ship Arabella, to arrive, at ten and one half cents per pound, cash in bond, (it being understood that the purchaser is to have one half of each number in the invoice,) to Messrs. Reimers & Schmidt, of New York.
    ' (Signed,) F. H. Jackson, Broker,
    Confirmed, W. S. Bullard,”
    It was admitted that 340 bags of saltpetre, to arrive in the Arabella, -referred to in the complaint, were nearly or quite lost or destroyed, and were sold upon their arrival on account of the underwriters, (part of the same being entirely dissolved by sea water), that the same was abandoned by the original importer, (W. S. Bullard, Esq.)
    The Arabella arrived on the 7th December, commenced discharging the saltpetre about the 15th, and finished on the 24th ; the one half of the invoice sold to the plaintiffs was sold to arrive in bond; it was entered in Mr. Bullard’s name ; i t must be entered by the importer ; Mr. Bullard held the bills of lading for this saltpetre ; he had not assigned the bill of lading or any part thereof to Reimers & Schmidt, (plaintiffs.) A certificate of transfer issued by the custom house authorities constitutes a delivery of goods in bond, from the importer to the purchaser ; Mr. Bullard did obtain such a certificate of transfer of these 393 bags sold to the plaintiffs ; he obtained this certificate the 7th of January, 1856 ; it was mailed the same day to the plaintiffs ; the plaintiffs or their assigns could not have obtained the 393 bags of saltpetre without this certificate of transfer. The plaintiffs paid for the saltpetre between the 22d December, 1855, and the 2d January, 1856. The plaintiffs could not deliver the saltpetre they purchased from Mr. Bullard until the 7th January, 1856.
    • The plaintiffs, on the 12th January, 1856, made a formal tender, through their attorney at law, to the defendants, and they replied: We cannot accept it, (393 hags of saltpetre,) as the contract calls for different things,” or words to that effect.
    The action coming on to be tried before a justice of this court and a jury, the defendants, upon the case being opened, moved to dismiss the complaint; the court overruled the motion, and to its decision in that behalf the counsel for the defendants duly excepted. The counsel for the defendants, upon the case being rested on behalf of the plaintiffs, renewed his motion to dismiss the complaint; the court overruled the motion, and to its decision in that behalf the counsel for the defendants duly excepted. After introducing some testimony, the defendants again moved to dismiss the complaint, which motion was denied by the court, and the defendants’ counsel duly excepted. The defendants’ counsel thereupon requested the court to instruct the jury to find a verdict for the defendants ; the court declined so to do, and the defendants’ counsel excepted. Thereupon the court directed the jury to find a verdict for the plaintiffs for $4296.95, and “ directed the exceptions taken at "the trial to be heard in the first instance at the general term, and judgment (in the meantime to be) suspended." To this direction the counsel for the defendants duly excepted.

      R. W. Van Pelt, for the plaintiffs.
    I. The first exception of the defendants, on. the refusal of the court to .dismiss the complaint, is not well taken. The complaint does state facts sufficient to constitute a cause of action, and it does allege a willingness, readiness, and ability on the part of the plaintiffs to perform their part of the said contract.
    II. The testimony in reference to the plaintiffs’ willingness to deliver the saltpetre from alongside the ship was proper, and the defendants’ objection thereto was not well taken.
    III. On the 26th December, two days after the saltpetre was fully discharged, it was worth trom 16 to 17 cts. per lb. which was the maximum price it had attained pending this whole transaction, and being two cents per lb. more than the defend- . ants had contracted to give the plaintiffs for it.
    IV. The proposition that the plaintiffs were bound to deliver alongside the ship, and because they did not, that the defendants are discharged from the contract, is not sound. The contract was, that the cash was to be paid when the saltpetre was-entered in bond. Both parties contemplated the entering of saltpetre in bond, and therefore the contract was subordinate to the rules and regulations of the Custom House. But ■ there was no law or regulation compelling saltpetre entered in bond to be sent to the public store. . And this lot might have been discharged alongside, only the quantity was so great it could not be weighed in one day, and it would have to lay on the wharf over night, which the Custom House officers would not permit. The plaintiffs also notified the defendants that there would be no additional charge to them for this. ■ Delivery of the saltpetre according to the exact terms and in the exact mode stated in the agreement was not necessary.- A substantial performance was sufficient, provided no injury or inconvenience was occasioned thereby, and provided also that the exact mode of performance be not an essential consideration. (Story on Sales, § 251.) . The answer alleges that the plaintiffs were the'owners of 393 bags. The fact that the number of bags contracted to be sold was stated in the contract at 733, and the quantity actually delivered or tendered was 393 bags, does not excuse the defendants from taking the latter quantity, because the contract was by. its very terms severable. The consideration was capable of apportionment, and the exact quantity was not of the essence of the contract. The defendants were, therefore, bound to carry out the contract and take as many pounds at 15 cents per lb. as the plaintiffs could deliver. (Story on Sales, §§ 240-242 ; on Contracts, § 16. Havemeyer v. Cunningham, 35 Barb. 515.) . The defendants having unreasonably refused to accept the saltpetre, the title to which had been properly passed to them, the plaintiffs had the right, and it was their duty, after allowing a reasonable time to elapse, to sell it at auction, and hold the defendants responsible for the difference between the original price and the net sum. which it brought. (Story on Sales, § 402.)

      James Eschwege, for the defendants.
    I. The complaint does not state facts sufficient to constitute a cause of action, and should be dismissed on that ground.
    1. The plaintiffs do not allege that they were ready and willing to perform the contract on their part, or that they tendered or demanded performance thereof.
    2. The complaint shows affirmatively that the plaintiffs were not ready to perform, and that they did not and could not tender performance of the contract on their part. The contract upon which this action is brought is executory; its conditions are mutual and dependent; the defendants are to pay for, the plaintiffs are to deliver 733 bags of crude saltpetre in bond, to arrive on board the ship Arabella, token landed, and from alongside the ship, in Boston. Neither party can recover, unless readiness and willingness to perform on his part, and tender, are alleged. (Dunham v. Mann, 4 Selden, 508. Lester v. Jewett, 1 Kern. 453. 12 Barb. 502. Williams v. Healey, 3 Denio, 368. West v. Newton, 1 Duer, 277.) (a.) The contract requires the plaintiffs to deliver 733 bags ; the complaint alleges a tender of 393 bags only, and is fatally defective on that ground ; the contract is entire, and the defendants are not bound to receive a part of the whole quantity only. (Russell v. Nicoll, 3 Wend. 112. Davenport v. Wheeler, 7 Cowen, 231. Champlin v. Rowley, 18 Wend. 187. Waddington v. Oliver, 5 Bos. & Pul. 61. Paige v. Ott, 5 Denio, 406. 2 Pars, on Cont. 163, 170. Oakley v. Morton, 1 Kern. 25.) (b.) No allegation of a waiver on the part of the defendants as to quantity is contained in the complaint. (Baldwin v. Munn, 2 Wend. 399. Oakley v. Morton, 1 Kern, 25, 33.) (c.) The contract required the plaintiffs to deliver the saltpetre from alongside the vessel; the complaint does not allege readiness and willingness so to deliver, but the reverse ; the plaintiffs aver that by the laws and statutes, rules and regulations, &c. they were prevented from delivering from alongside the vessel. The defendants were entitled to such delivery, which not having been tendered by the plaintiffs, they cannot recover ; the complaint is bad for not alleging such tender. (2 Parsons on Cont. 184, 187, et seq. 6 Term Rep. 710. Moakley v. Riggs, 19 John. 71. Carpenter v. Stevens, 12 Wend. 589. West v. Newton, 1 Duer, 277. Beebe v. Johnson, 19 Wend. 500. Story on Sales, § 251. 2 Story on Contracts, § 968.)
    II. The complaint should have been dismissed when the plaintiffs rested.
    1. Because it appeared that the plaintiffs were not ready to deliver, and did not tender the quantity stipulated. (Fischell v. Scott, 28 Eng. Law & Eq. Rep. 404, cases cited supra under a.) And evidence tending to establish a waiver on the part of the defendants does not cure this defect. (Baldwin v. Munn, 2 Wend. 399. Holmes v. Holmes, 5 Seld. 525.)
    2. Because it appeared that the plaintiffs were not ready to deliver, and did not tender at the time stipulated, namely, when landed. (Friess v. Rider, 24 N. Y. Rep. 367. 2 Story on Contracts, § 970, a; § 971.) Delivery could only be tendered and consummated by the proper custom house certificate this was not in the possession of the plaintiffs before the 8th of January ; the saltpetre was landed on the 24th of December ; one half of the whole quantity had been delivered on the 20th of December to other purchasers, and between these dates saltpetre had depreciated in value 21/2 cents per pound the defendants had repeatedly demanded the custom house certificate. Time becomes material in an agreement where delay diminishes the value of the thing contracted for. (Decamp v. Fear, 5 S. & R. 323.) The plaintiffs could not tender what they did not possess.
    3. Because it appeared that the plaintiffs were not ready to deliver, and did not tender in the manner stipulated, namely, from alongside the vessel. Ho law, statute, rule or regulation prevented the plaintiffs from delivering according to contract. Sudh delivery is a condition precedent, the defendants were entitled to, and did insist upon its performance, and without such condition would not have made the purchase. (Cases cited supra under c. Worsley v. Wood, 6 Term Rep. 720. 2 Story on Contracts, 543.)
    IV. The plaintiff's are not entitled to recover, even if the defendants were in default. On the 24th of December, when all the saltpetre was landed, and the plaintiffs were bound to deliver, and the defendants to receive, the market price was higher than the price stipulated in the contract.
    V. The learned judge, erred in directing the jury to find a verdict for the plaintiff's, thus taking from the jury the question of fact whether the defendants did or did not demand from the plaintiffs the custom house certificate. The testimony on this question is conflicting. (Purchase v. Mattison, 25 How. Pr. Rep. 161. Cobb v. Cornish, 16 N. Y. Rep. 602. Gilbert v. Beach, Id. 606.)
    VI. The complaint should be dismissed for not stating a cause of action, or the verdict should be set aside, and a new trial granted, with costs.
   Moncrief, J.

This action is brought upon a written contract of sale of saltpetre; in plain terms, entitling the defendants to receive from the plaintiffs when landed in Boston, alongside of the ship Arabella, 733 bags crude saltpeter, to arrive on board the said ship; and there is an ample illustration in the bill of exceptions in this case, of the peculiarities of mercantile contracts; and the necessity of giving construction to each, according to the intent of the contracting parties, manifest from their respective contracts. By the sale note from Bullard to the Hazard Powder Co. following the decision in Havemeyer v. Cunningham, (35 Barb. 515, 521,) the latter was entitled as a purchaser of an invoice of goods then on board the ship Arabella, to whatever portion of the quantity sold arrived in a sound condition, and they received their one half part of the invoice so purchased. The plaintiffs’ contract calls for “ the one half of 1464 bags saltpetre,” and hence, in my view, differs most essentially from the agreement to deliver one hale of an invoice of saltpetre, to arrive per ship Arabella, say about 783 bags more or less.” * * The one can legally claim 732 bags of saltpetre from on board the vessel Arabella. The other having bought the moiety of whatever is on board and may arrive at the port of destination, of course is entitled to demand what may arrive. The distinction between the sale to the Hazard Powder Oo. and the case cited from 35 Barb. {supra,) is that in the one there was no guarantee as to quality, and in the other “ the sugar was to be of current quality clayed; ” this, however, is immaterial in the present discussion, inasmuch as in both these instances the contract of sale must be held to be absolute in the sense that the party was entitled to the thing he had agreed to buy, being then on board of vessel. (35 Barb. 519.) With reference to the contract made with the plaintiff, it may be questionable whether they were bound to receive under it any greater number of bags than 732, being the one half of 1464 bags of saltpetre on board of the ship Arabella on the 12th September, 1855.” If on that day on board of that ship, there was in existence only 786 bags of saltpetre, it can need no argument to state as a legal verity, that Mr. Bullard could not by virtue of the contract require the plaintiff to accept 393 bags, being the one half of the saltpetre actually arriving at Boston, and delivered from on board the ship Arabella, unless their contract is construed to import a sale of half of the invoiced saltpetre then on board of the ship Arabella. (2 Ell. & Bl. 836. 23 Law. J. 2 B. 27.)

It is an elementary principle of law, that if the right of property has not passed by the bargain, the purchaser cannot be made responsible for the price, unless the vendor can show that the article or chattel tendered for acceptance, fairly corresponded in quantity * * with the things bargained for and agreed to be bought; for no man can be compelled to take more than he agreed to buy. (2 Pars. on Cont. 163. Pars. Mer. Law, 53. 1 Campb. 53, 361. 15 M. & W. 85. Hart v. Mills, 15 Law J. Exch. 200. Addison on Contracts, 238, p. 237, top paging, 2 Amer. ed.) It will not be pretended that in either Havemeyer v. Cunningham, (supra,) or by virtue of the contract of Bullard with the Hazard Powder Co., the importer or vendor was divested of his property, or that the title to the goods passed to the vendee.

The weight of the articles remained to be ascertained. (Add. on Cont. 224, 225, and cases cited. Pars. Mer. Law, 48, 49.) The evidence fully establishes the fact, in the present case, that the title to the goods remained in Mr. Bullard until the 7th January, 1856. At any time subsequent to the 11th August or 12th September, 1855, he could have assigned and transferred the title to the saltpetre on board of the ship Arabella by the indorsement and delivery of the bills of lading which he then had, and which he continued to hold until after the arrival of the ship at Boston. In confirmation of this view, Mr. Bullard abandons property to the underwriters, and-receives payment therefor from them, which property, otherwise was owned by the plaintiffs or by the defendants.

Again : the transaction betwéen these parties on the 25th September, 1855, cannot be treated as an absolute sale of 733 bags of saltpetre at that time; it does not appear that such a quantity which could be claimed by the plaintiffs under their contract with Bullard, was in existence on board the ship Arabella on that day; only 393 bags arrived at Boston, over which the plaintiffs exercised acts of ownership or control, or became entitled to the possession.

The contract of the plaintiffs with the defendants, called for the delivery of 733 bags of saltpetre from on board the ship Arabella, to be taken when landed alongside the ship at Boston; the plaintiffs could not be required to transfer any greater, and the defendants as plainly cannot be compelled to accept any less number of'bags of saltpetre, than they had agreed to purchase, and the plaintiffs contracted to deliver. (Kelley v. Upton, 5 Duer, 336.) The tender of a number less than 733 bags of saltpeter, did not satisfy the requirements of the contract on the part of the plaintiffs, and the defendants were not bound to accept. Shields et al. v. Pettie et al. (4 Comst. 122); S. C. 2 Sand. S. C. Rep. 262,) is in striking analogy with the agreement between these parties, and is decisive of the question involved.

Upon the evidence in the case, I am of the opinion that the learned judge erred in not directing a verdict for the defendants) and in my opinion the refusal to dismiss the complaint upon the plaintiffs resting their case, was also erroneous; a verdict of a jury for the plaintiffs, upon the evidence then introduced cannot be sustained.

In this view, the other exceptions need not be,'and are not noticed;

The exceptions should be sustained, and a new trial directed, with costs to abide the event.

Robertson, Ch. J.

The sale, in this case, was of goods to arrive; it was, therefore, a mere executory contract, conditional on their arrival, (Shields v. Pettie, 4 N. Y. Rep. 122; S. C. 2 Sandf. 262 ; Benedict v. Field, 16 N. Y. Rep. 595 ; S. C. 4 Duer, 154,) and not a transfer of title. The only question is,, whether the contract was for the delivery of so much of the amount sold as should arrive, and therefore apportionable, or only of the specified amount. In Havemeyer v. Cunningham, (35 Barb. 515,) the contract was of an invoice of goods, of a certain number of tons, “ more or less,” and for that reason only, it was held that the seller was only bound to deliver what arrived, and was not responsible for any loss on the voyage. In the present case, the contract was for a definite number of bags of saltpetre, although not for a specified quantity. There does not seem to be any good reason, why a purchaser of goods at sea, of whose quantity he cannot be presumed to be aware, should be compelled to accept part of the quantity bought by him, any more than if they were in a distant warehouse. The fact that such goods have not arrived, merely postpones the execution of the contract, and without some qualification in its terms, ought not to affect the right of either party. In the case last cited, the principal question was whether the terms “ to arrive on or before” a certain day, used in it, made the sale absolute, or conditional on the arrival, on or before that day, and it was held to be absolute on arrival, whenever it happened, merely postponing the time of delivery, distinguishing it from Russell v. Nicoll, (3 Wend. 112,) only by the insertion of the name of the vessel. The obligation of the seller only to deliver what arrived, in such a case, sustains a correlative obligation on the part of the buyer to accept it. But unless the former obligation had been limited by the use of the words “ more- or less,” and “invoice,” the purchaser, by whom the action was brought, could not have been enabled to recover for non-delivery of the cargo actually arrived, if less than the amount specified, as embracing the whole of the contract. All the reasons, which in the case of any other contract entitle the party seeking to enforce it, to reject a partial, and require a full performance, equally applies to such an one. Less than the full amount contracted for, may baffle all the purposes of a buyer. His right to insist on a complete performance, is established by numerous authorities.

Besides, there was on hoard the vessel, on its arrival, the full number of bags of saltpetre required to be delivered by the contract, although nearly one half had been lessened ibulk, by the dissolving of part of the contents by water. These were transferred to underwriters by the plaintiffs, or those under whom they claim, by abandonment. There was no guaranty of quality in the contract, and the price was to be regulated by weight. I see no reason why the defendants were not entitled to whatever remained of the saltpetre -in the bags, which were abandoned. It was held, in Havemeyer v. Cunningham, (ubi supra,) that the purchasers were entitled to recover for the part of the cargo alleged to have been injured.. They were, at least, entitled to an election. Possibly, if such goods were unmerchantable, as charged in the complaint, as the defendants would not be bound to accept them, the plaintiff was not bound to tender them ; but the evidence did-not sustain this view.

Without regard to the mode of delivery, I, therefore, concur in the opinion that the defendants are entitled to a new trial, with costs to abide the event.

Monell, J. concurred in the result.


author: Robertson, J.

text:
    Abram S. Onderdonk, plaintiff and respondent, vs. Jacob Voorhis, Jr. et al. defendants and appellants.
    1. Under the statute of April, 1862, relative to demands against ships or vessels, a lien for repairs continues for at least -the time prescribed for filing the specification of such lien, mentioned in the statute, (12 days.) A secret departure of the vessel within that period will not displace the lien.
    2. A seizure by the claimant, within such time, of the vessel on attachment, for his lien under the statute, renders the filing of a specification unnecessary.
    (Before Robertson, Ch. J. and Moncrief and Monell, JJ.)
    Heard January 14, 1864;
    decided January 30, 1864.
    Appeal from a judgment entered upon the report of a referee. •
    The plaintiff, by his complaint, seeks to recover of the defendants the sum of $>813.76, for the amount of work, labor, and materials furnished to and in repairing the schooner Signal, at the instance and request of the defendant, Jacob Voorhis, jun. who was the owner of said vessel, and alleges that' proceedings were taken to enforce payment of said sum as a lien on said vessel, in which proceedings a bond was given by the defendants, and the vessel discharged, the defendants, John Pettigrew and William Voorhis, being co-obligees in the bond with Jacob Voorhis, jun.
    The plaintiff alleges that on the 3d day of December, 1862, the work on the vessel was completed, and on that day accepted and received by the owner, the defendant Jacob Voorhis, jun. That on the 6th day of December, 1862, the specification of the debt and lien, etc. was filed in the office of the clerk of Rockland county. That on the 13th of December, 1862, an application was made to Justice Barnard for a warrant of attachment against the vessel, and on that day the said justice granted the warrant of attachment. That at the time of issuing the warrant, the plaintiff" delivered to" the justice a bond required by law. That within three days after the issuing of the attachment, the plaintiff left at the office of the Daily Transcript, a notice, required by law, which was published on the 15th December. That on the 17th' day of December, 1862, the defendant Jacob Voorhis, jun. applied to the said justice for a warrant to discharge the vessel, which was granted, upon his giving a bond. •
    The defendants, by their answer, deny all the material allegations of the complaint touching it, affecting the right of the .plaintiff to enforce the payment of the debt, as a lien, or on the bond.
    The action was referred to Henry J. Scudder, Esq. as sole referee, to hear and determine the action.
    On the trial of the action, the plaintiff offered evidence that the work and labor had been done and performed to the schooner, to the amount and value by him claimed. He.also offered in evidence, without any further proof, the bond set forth in his complaint, and the same was received, notwithstanding the objection of the defendants. He then rested his case.
    The defendants then asked to have the complaint dismissed, which was done, and the defendants excepted. Thereupon the plaintiff offered further evidence, viz : the specification filed in the county clerk’s office, of Rockland county, and the defendants objected. The same was received over the defendants’ objection, and the plaintiff then again rested.
    The referee found, and reported as conclusions of fact:

      First. That the defendants duly executed and delivered the bond alleged and set forth in the complaint herein, as therein alleged

      Second. That the plaintiff herein had a subsisting lien upon the vessel referred to in said .bond, being the schooner Signal, at the time of the execution and delivery of said bond, and the amount thereof was justly $>600. And that this sum was due him from the defendant, Jacob Voorhis, jun. for work, labor, and materials, done and furnished, in and about the repair of said schooner.
    . He stated, also, in his findings, as conclusions of law upon the above facts, that the defendants, above named, are jointly and severally indebted to said plaintiff, in the sum of $>600, with interest thereon, from 'the 17th day of December, 1862, .for which sum, with costs,- he ordered judgment for the plaintiff.

      R. M. Harrington, for the appellants.

      J. Townshend, for the respondent.
   By the Court,

Robertson, J.

The main, if not the only question in this action, is whether the plaintiff’s claim was a subsisting lien on the vessel attached, on the 13th of December, 1862, the day the warrant of attachment was issued. The condition of the bond sued upon is to pay all claims, established to be due, to the plaintiff, and “ to have been subsisting liens” upon such vessel, pursuant to the provisions of the statute of April, 1862, relative to demands against ships and vessels at the time of exhibiting the same. This follows the requisitions of that statute, as to form. (N. Y. Sess. L. 1862, 960, § 11.) Its fifth section prescribes that the applicant shall "exhibit” and specify his claims and certain particulars relating thereto. This fully explains what is meant by the time of exhibiting the same,” in the statute and bond.

The evidence shows the work was completed and the vessel delivered to the defendant Jacob Voorhis, jun. on the third of December, 1862. Consequently, only ten days had elapsed when the warrant was issued. The statute in question, of 1862, (ubi supra,) provides by its second section, that the lien created by the first shall cease whenever the vessel on which it exists shall leave the port at which such debt was contracted, unless a certain specification of such lien be filed in the office of the clerk of the county where such debt was contracted, within twelve days after such departure. Assuming Nyack to be the port where the debt was contracted, and the sailing of the vessel for New York to be a leaving within the meaning of the statute, the lien of the plaintiff remained, for at least the time prescribed for filing the specification. That requisition did not mean to deprive the material man of his lien immediately on the departure of the vessel, only to be restored on filing his specification of claim within the time, because it says the lien shall cease. It was not intended that a secret departure, should get rid of the lien ; the workman had twelve days given him in which to discover the departure and put his lien on file. A seizure of the vessel on an-attachment within the twelve days would be a more certain notice to purchasers or other material men, than putting a claim on file. I therefore regard the plaintiff’s claim as a subsisting lien at the time of issuing the warrant of attachment. The mere giving of the bond, subsequently, could not alter the plaintiff’s rights, who substituted the seizure on the attachment for his lien, and thus rendered the filing of any specification unnecessary. The attachment cannot be made conditional on the performance of any subsequent act by the plaintiff. It must be either absolute or irregular and void.

The seal of the bond imports a good consideration. Upon its execution the defendants obtained a discharge of the attachment. If that was irregularly issued, they could have obtained the vessel by an action of claim and delivery; they chose, however,, to apply to the officer who issued the warrant, give the bond and procure the discharge from him. They are, therefore, now estopped, after -having obtained the- favor, from setting up any irregularity. (Ring v. Gibbs, 26 Wend. 502. Franklin v. Pendleton, 3 Sandf. 572 ; S. C. 7 N. Y. Rep. 508. Coleman v. Bean, 14 Abb. Pr. 38.) But the recital in the bond goes no further than the seizure by the sheriff, and the defendants had a perfect right to give the bond voluntarily to get rid of that. In any event, the onus lay upon them of proving the illegality of such seizure, which they have not done.

The questions put to witnesses respecting the value of the vessel, were properly rejected as immaterial. One question objected to, as to what was said at an interview between a witness, (Peter Voorhis,) and two other persons, (Dickey and Smith,) does not appear to have been answered. The question put to a defendant, (James Voorhis, jun.) as to a conversation with the plaintiff in regard to a submission to arbitration, in continuation and explanation of a prior negotiation for the purpose, was proper on cross-examination ; the answer showed a refusal to submit, by the plaintiff. An exception appears to have been taken to some statement of a witness, (Dickey,) upon which it is impossible to pass without knowing what the question was which drew it out, whether it was excepted to, or the answer responsive. The question to the same witness, as to a custom in ship yards in doing repairs, is too vague, even if such a custom was admissible as evidence. The admissions of the defendant, Peter Voorhis, in regard to acts within the scope of his authority, from his co-defendant, Jacob Voorhis> were properly admitted.

Hone of the objections taken to the certified copy of the specifications were well founded. (1 R. S. 377, § 65. Salte v. Thomas, 3 B. & P. 188. R. v. Aides, 1 Lev, 391.)

The judgment should be affirmed, with costs.


text:
    Isaac W. Edsall, plaintiff and appellant, vs. James Brooks and another, defendants and respondents.
    1. The removal of an individual from the place of policeman in the city of New York, by the Board of Commissioners of Police, solely upon the ground of his not having reported to such hoard the receipt by him of a gratuity for official service, will not justify the editors of a newspaper, in therein stigmatizing his conduct as “ blackmailing.” The heading of a report of proceedings on his trial for such offense with the title “ Blackmailing by a policeman,” and its introduction by prefatory remarks stating that the plaintiff was dismissed from office “ on charges of blackmail preferred against him by citizens in three distinct cases,” was therefore held libelous, although the report itself, as a just and fair account of what occurred, was protected.
    2. It is not sufficient to protect a publication of a transaction from the charge of being a libel that it contains a correct narrative of what occurred, provided it contains unwarranted deductions from the facts that occurred, tending to defame the party complaining.
    (Before Moncrief and Monell, JJ.)
    Heard January 7, 1864;
    decided February 13, 1864.
    This action, was to recover damages for a libel upon the plaintiff, published in the New York Evening Express, of which the defendants are the editors and proprietors.
    The alleged libel was in the following words :
    “ Blackmailing by a policeman.—Isaac W. Edsall, of the 26th precinct) Oity Hall police, has been dismissed from the police department, by the commissioners, on charges of blackmail, preferred against him by citizens, in three distinct cases.”

    The answer of the defendants, after admitting the publication of the alleged libel, sets out the entire article, of which the alleged libel forms a part only. The article alleges that The first charge is by Cornelius W. Gibson, of Brighton, C. W. who alleges that on the 10th day of April, he was in this city, intending to go to British Columbia by the California steamer, and he was induced to go into a Peter Funk auction store, in Cortland street, and there purchased a watch, that was warranted gold, for $120. The watch turned out to be worthless, and after some very sharp practice by the Funks, the watch being resold, the victim bought an equally worthless one for $75; but he succeeded in getting $25 hack, for which he had to pay a commission of $6, thus losing $56. On the follow-* ing Monday, the 4th, he applied to the police, and Edsall was sent to work up the case. He brought up the parties before the mayor, and they were discharged on refunding the money. Gibson then gave Edsall $5 for his trouble.
    Amos C. Yeoman, also a Canadian, made an affidavit that he was caught in the trap by the P. F.’s, and cheated out of $59, by the same process as his friend Gibson, and at the same place. That on applying to the police, Edsall was detailed to attend to the .case, and succeeded in recovering the money for him, and he, Yeoman, made him, a present of $é.

    In answer to these charges, the officer stated on his trial that after he had recovered the money for the parties, they pressed him to take the money as a present, when he said that policemen were not allowed to take any gratuity, without' permission from the board of commissioners ; they still pressed him, and he took the money conditionally, intending to deposit it with the commissioners, preparatory to receiving their per-* mission. He was very busy all that day, and could not call .on the commissioners. He also stated that on the same afternoon Sergeant Cleary and officer Doyle, of the same precinct, called on Gibson and Yeoman, and induced, them to make the above statement before the chief clerk.
    Commissioner Acton stated that on the 18th, two days after the complaint was made, and after Edsall had had notice of trial, the $9 was deposited by him with the commissioners.
    There was another affidavit sworn to by John W. Allen, who had been cheated, on the 27th of March last, by the Peter Funks, out of $,5'0. Edsall recovered the money for him, and he paid him $5 for his trouble. On being shown this affidavit, Edsall became quite indignant, and said : ‘ I deny that in toto. I never had any thing to do with Mr. Allen’s case, to my recollection, and I deny taking any money from Mr. Allen. ' These were the only cases where I have had money tendered me, (referring to the eases of Yeoman and Gibson.) I admit I -received the money in these cases,, to appropriate it in accordance with the rules of the department.’
    On the book of Captain Silvey, of the 26th precinct, appears the following entry, under date of March 27th : ‘ Officer Edsall recovered $48 from Ho. 1 Park Row, for John W. Allen, of Portland, Me. settled by the mayor.’ This seemed conclusive to the commissioners, and Edsall was immediately discharged from the department. Officer John Cronk, of the Broadway squad, has been selected by Mayor Opdyke in the place of Edsall, and has been transferred to the mayor’s office.”
    The answer further alleged that charges were preferred against the plaintiff, before the said commissioners; a trial had' and that the plaintiff was, by the judgment or decision of the said police commissioners, dismissed from the said department ; and that the publication was, and is, in all respects, a just, fair, and impartial account, or statement of the charges, trial, and dismissal of the plaintiff from the police department, by a legally constituted public judicial tribunal; and that the printing and publishing thereof, was, in all respects, privileged, and that it was published with good motives, and for justifiable ends.
    Upon the trial, the defendants gave in evidence a copy of the record of the proceedings before the police commissioners, upon the trial of the plaintiff, upon the charges preferred against him. The charges were the same as those stated in the Express article, and the plaintiff was removed from office. The plaintiff was charged with violation of the rules and regulations of the police department.
    At the close of the evidence, the justice dismissed the complaint.
    From the judgment the plaintiff appealed.

      A. Sandford, for the appellant.

      C. Lawton, for the respondents.
   By the Court,

Monell, J.

Independently of the statute of 1854, (Laws of 1854, p. 314,) the publication of a judicial trial, fairly reported, and without express malice, is not actionable. The statute is not, therefore, in aid of the common law, but a mere legislative enactment of it. While the statute protects the editor' of a newspaper from an action, for a fair and true report of any judicial, legislative, or other public official proceeding, except upon proof of actual malice, it expressly withholds its protection for any libelous comments or remarks superadded to, or interspersed or connected with, such report. . Both at the common law, and under the statute, a privileged communication, or report of a public official proceeding, is libelous, if there be proof of actual malice ; otherwise, no action will lie. The only distinction, therefore, between a privileged report and one that is not privileged, is in the honest purpose, or evil design with which it is made and published. And the law will presume malice in all cases where the publication is not privileged.

The libel complained of in this action is contained. in the prefatory remark, or syllabus, which is prefixed to the report of the proceedings before the commissioners of police. It is, “ Blackmailing by a policeman; ” and states that the plaintiff has been dismissed from the police department by the commissioners, on charges of “ blackmail preferred against him by citizens, in three distinct cases.” If, then, these superadded remarks are in themselves libelous, and are not a just, fair, and true deduction from the proceedings had before the commissioners, (which the defendants undertook to> report and publish,) the defendants are deprived of the benefit of the statute, and are liable in this action.

The charges preferred against the plaintiff, and for which he was subjected- to a trial, resulting in' his removal from office, were, that he had improperly received money for his services, rendered in the performance of his duty. The proof to establish these charges was, that after being detailed to investigate complaints of frauds committed by mock auctioneers, and having succeeeded in recovering the amounts of which the parties had been defrauded, he accepted, as a voluntary gift, from the persons whose money he had recovered, in one case $4, and.in two other cases $5 each. The plaintiff stated on his trial, that he received the money conditionally, intending to deposit it with the commissioners, preparatory to receiving their' permission.

Although the members of the metropolitan police are inhibited from sharing, for their own benefit, in any present, fee, or gift, for police service ; yet .the board of police are authorized by statute, (Laws 1860, p. 456, § 65,) for meritorious and extraordinary services, rendered by a member of the police force, in the due discharge of his duty, to permit such member to retain, for his own benefit, any reward or present tendered him therefor. And it is made cause of removal for a member to receive a reward without giving notice thereof to the board.

The offense, therefore, is not in receiving the reward, but in omitting to give notice to the board; and the cause of the plaintiff’s removal from office, was in neglecting to notify the board that the gratuity had been received by him.

The guilt or innocence of the plaintiff, of the charges preferred, is not involved in the question now before us. It is" sufficient that he was, by a competent authority, adjudged to be guilty ; and the publication of the “ proceedings ” before the commissioners is protected.

I have no difficulty in determining that the comments of the defendants upon the charges. against the plaintiff, disconnected from the report of the trial, were libelous. Any publication, which is calculated to injure the character of a person, or to degrade him in the public estimation, is libelous. (Weed v. Foster, 11 Barb. 203.) To charge a public officer with blackmailing,” and to assert that he has been dismissed for that cause, was calculated to degrade and bring him into disrepute, resulting in injury to his character, with the public. Blackmail,” (from maille, French, signifying a small coin,) is defined to be a certain rent of money, coin, or other thing, paid to persons upon, or near the borders, being men of infiuence, and allied with certain robbers and brigands, to be protected from, their devastation. (Wharton’s Law Lexicon, 101.) Substantially, we now attach the same meaning to the term. In common parlance, and in general acceptation, it is equivalent to, and synonymous with extortion—the exaction of money, either for the performance of a duty, the prevention of an injury, or the exercise of an influence. It supposes the service to be unlawful, and the payment involuntary. Not unfrequently it is extorted by threats) or by operating upon the fears or the credulity, or by promises to conceal, or offers to expose, the weaknesses, the follies, or the crimes of the victim, There is moral compulsion, which neither necessity nor fear, nor credulity can resist.

It cannot be doubted, I think, that the term “blackmail,” is universally regarded as an unlawful act; and though, from its indefiniteness and comprehensiveness, the offense is not clas-r sified as a distinct crime, nevertheless, it is believed to be criminal ; and to charge a man with “ blackmailing,” is equivalent to charging him with a crime.

The complaint against the plaintiff was not of a crime. He had not violated any law. He had not extorted money, by threat or promise. He had received a voluntary gift, and the penalty of his neglect to notify the board, was visited upon him, by his removal from office.

Under the facts of this case, I cannot persuade myself that the defendants made either a fair or a truthful deduction from the charges agaifist the plaintiff; nor of the cause which led to his removal from office. I do not impute to the defendants any evil design, or malignant intent, to defame the plaintiff. They may, and most probably did intend to do no more than to fairly characterize the offense charged ; but they were unfortunate in the use of words, carrying a different meaning ; and, however proper it may be to urge these considerations in mitigation of damages, the defendants must be held responsible for the injury which the law presumes the plaintiff has sustained.

In Thomas v. Croswell, (7 John. 264,) the alleged libel was contained in a newspaper account of a legislative appointment. The court, (Spencer, J.) say: “ There is no dictum to be met with in the books, that a man, under the pretense of publishing the proceedings of a court of justice, may discolor and garble the proceedings by his own comments and constructions, so as to effect the purpose of aspersing the character of those concerned.”

In Stanley v. Webb, in this court, (4 Sandf. 21,) the article complained of was headed : “ Extorting money to hush up the complaint,” and then followed a history of the proceedings before the magistrate. The court held the heading not to be privileged. So in Clement v. Lewis, (3 Brod. & Ring. 297,) the heading to an article, “ Shameful conduct of an Attorney,” was held not to be privileged. It was superadded to an account of proceedings in the insolvent debtors’ court.

Our conclusions are, that the comments of the defendants, superadded to their history of the trial before the police com^ missioners, are not privileged, are unfair, and untrue deductions from the facts disclosed on the trial, .and for the publication of which the defendants are liable in this action.

We are, therefore, of opinion that the judgment should be reversed, and a new trial granted.

Ordered accordingly.