author: By the Court, Monell, J.

text:
    John H. McWilliams, plaintiff and respondent, vs. John M. Mason, defendant and appellant.
    1. Although a surety or guarantor who agrees to become hound for a certain sum to he loaned in cash to his principal for particular purposes, is relieved from liability if the lender, knowing of such agreement, advances the amount merely by transferring securities for a part and adjusting the residue by discharging an old debt; yet where the agreement of the lender to make such an advance upon the guaranty is first made, and the guaranty having been afterwards obtained, the lender faithfully performs his agreement, the surety or guarantor is not absolved from liability because the principal debtor induced him to become bound by a concealment or misrepresentation as to the nature of- the agreement, unknown to the lender.
    2. The previous decision in this case in 6 Duer, 276, distinguished and approved.
    (Before Bosworth, Ch. J. and White and Monell, JJ.)
    Heard November 9, 1863;
    decided November 28, 1863.
    This was an appeal from an order denying the defendant’s motion for a new trial after verdict, arid from a judgment entered against Mm on the verdict.
    The action was upon the defendant’s guaranty of payment of the bond of Thomas Carlile for $1500. The bond and guaranty were given to Townsend, the plaintiff’s assignor. The defense waé that the defendant had been induced to sign the guaranty, upon the representations of Carlile, that he wanted the money to go into business with in OMo,. and that Townsend would advance the money.
    The defendant, in his answer, averred that Townsend knew of this representation, and that instead of advancing the $1500, in money, he canceled a prior indebtedness' of Carlile to Mm, for part of the amount, and transferred for the balance a mortgage made by one Little, on property in Brooklyn, upon which was due, at the time of the transfer, the sum of $1293.55.
    On the trial, which was had before Chief Justice Boswobth and a jury, on the 10th day of June, 1862, the defendant proved by Carlile, that the first acquaintance of the latter with Townsend, was when Townsend made Mm a loan of $150; that previous to such loan Townsend had called on him for payment of an old note of the witness then long, past due, which he, Townsend, held; that shortly after the $15.0. loan, the witness applied to Townsend for .a further loan of $1500, and proposed to give him his bond guarantied by the defendant ; that Townsend took the matter into consideration ; that the witness obtained the defendant’s consent to guaranty his bond for such a loan; that he informed Townsend of such consent ; Townsend then said he had not the money, but he had a mortgage for $1200, with some accumulated interest upon it; the witness agreed to take the mortgage and the note which Townsend held, amounting to $197 or $198, which had been protested for some time.
    The $1500 was made up of the mortgage by Little' and interest, and the old note of Carlile, all of which was transferred by Townsend to Carlile on the execution and delivery of the bond and guaranty. Carlile negotiated the mortgage, and received upon it $1075, in cash.
    The .defendant testified that Carlile applied tó him to give him his guaranty, saying he had an opportunity of entering into business in Ohio, provided he could obtain $1500; that he could procure it of Townsend, if I would guaranty his bond. He further testified that he signed the guaranty in Townsend’s presence, and that Townsend did not disclose to him what he was going to let Carlile have for the bond and guaranty.
    Townsend, who was examined as a witness by the plaintiff, gave a somewhat different relation of the transaction from that testified to by Carlile. He said Carlile knew he had the Little mortgage and wanted to let him have it; and made a proposition to give him his bond and the guaranty for the mortgage and note; that he offered the guaranty of the defendant; that after inquiring into the responsibility of the defendant, he consented to exchange the Little mortgage and note for the bond and guaranty. This witness testified that he declined peremptorily loaning Carlile any money, and that he never entertained any such proposition whatever* The witness further contradicted- Carlile in several important particulars. And he testified-to a conversation with the defendant before the guaranty was signed, in which he informed the defendant of the entire transaction • told him what he was going to give Carlile, namely, the mortgage and Carlile’s note, and that the defendant signified his assent and approved of it. The defendant denied that any such statement was made to him.
    • The defendant’s counsel requested the court to charge, that if the defendant entered into the guaranty for the purpose of raising $1500 in money, to assist Carlile to go into business, and' Townsend, instead of advancing that amount, or any thing in money, gave Carlile only the Little mortgage and the $197 note, and did not communicate to the defendant the fact that he was advancing the mortgage and the note, the plaintiff can not recover any thing. Also,
    That if there was an intention between Townsend and the defendant prior to the consummation of the transaction between Carlile and Townsend, and Townsend then omitted to inform the defendant what he had agreed to give Carlile on the bond and guaranty, the plaintiff could not recover.
    The judge refused so to charge, and the defendant excepted.
    The court, among other matters, substantially charged the jury, that if Townsend believed that the nature of the transaction was known to the defendant • and he had no reato suppose that any misrepresentation had been made by Carlile to the defendant, then the plaintiff was entitled to recover, at all events the $1075 actuallyreceived in money. And further, if the jury believed the mortgage was intrinsically worth the sum secured by it, or that Townsend so regarded it, then the plaintiff was entitled to recover the sum secured by the mortgage, with interest from the time of its maturing to this date. But that he would not he entitled to recover the amount of the note, which was surrendered, because, upon the evidence, it was worthless.
    To this part of the charge the defendant excepted.
    The jury found a verdict for the amount of principal and interest of the mortgage.

      Judgment was entered upon the verdict.
    A motion was made at special term, for a new trial, which was denied.
    The defendant appealed from the judgment and order.

      John W. Edmonds, for the defendant, appellant.
    It was distinctly held by the general term of this court, on a former appeal in this case, (6 Duer, 276,) that the manner in which Townsend paid the consideration of the $1500 bond, exempted the defendant, as guarantor of the bond, from any liability. The true question, therefore, to be presented to the jury was, whether Townsend had advanced only the Little mortgage and the notes. If he had, the case was brought within the rules laid down by the general term, and the judge, at trial term, had no right to depart from that rule. The defendant went to trial upon the principle so laid down at the general term, and brought his case within that principle. If the court, at trial term, had submitted the case to the jury on that principle, there would have been no room for the jury to have found a verdict otherwise than for the defendant. But the jury were permitted to find that though Townsend had paid for the guaranty by the mortgage and the old notes, yet the guarantor was liable for the amount actually received by the borrower, and was not exempted from liability, as the general term had held.
    I. The question presented was, whether the guarantor was entirely discharged from liability. The general term held that under a certain state of facts he was; the trial term held that under that state of facts, he was not so, but was still liable for the amount actually received by the borrower. Upon this decision of the general term, on which the defendant went to trial, he has a right now to a new trial.
    ■ 1. The ruling of the general term was right, and the defendant was in law entirely discharged by the facts which the jury found, and the judge assumed to have been proved.
    II. The lender, without the knowledge or consent of the guarantor, but by collusion With the borrower, diverted the guaranty from the purpose for which it was given, and thus varying- the contract, the guarantor was discharged. (Phillips v. Astlins, 2 Taunt. 206. Evans v. White, 5 Bing. 485. Bacon v. Chesney, 1 Stark. 192. Glyn v. Hertel, 8 Taunt. 208. Bonser v. Cox, 4 Beav. 380. Bonar v. McDonald, 1 Eng. L. and Eq. 1. Owen v. Hornan, 3 McN. & G. 378. United States v. Liffler, 11 Pet. 86. 1 Parsons on Cont. 497, note rr. Bigelow v. Benton, 14 Barb. 128. Ludlow v. Simond, 2 Cai. Ca. 1. Leeds v. Dunn, 10 N. Y. Rep. 469.)
    III. The discharge of the surety in such case is . not merely pro tanto, but is. in toto.

    1. The bond and guaranty were for $1500. The jury have found by their verdict that the sum of $1500 was never advanced to Carlile by Townsend, but only the amount of the Little mortgage and the accrued interest, viz. $1293.55. This arrangement between the principal and the creditor being different from that to which the surety had agreed, he is not bound by it at all for any sum.
    The principle strictiisimi juris governs the case, and the surety has a right to say: “ I did not enter into that agreement, and I am not bound by it,”
    2. Such is the whole current of authority in England and in this country, and the idea that the surety can be held for any part performance is utterly repudiated in all the cases. (Walrath v. Thompson, 2 N. Y. Rep. 185. S. C. 6 Hill, 540. Hunt v. Smith, 17 Wend. 179. Miller v. Stewart, 9 Wheat. 703. Wright v. Johnson, 8 Wend. 512. Rathbone v. Warren, 10 John. 595. Whitchen v. Hall, 5 B. and Cr. 269. Pidcock v. Bishop, 3 id. 605. Stone v. Compton, 5 Bing. N. C. Rep. 142. Theobald. on Surety, 147. Glen v. Hertell, 8 Taunt. 208. Pitman, on P. and Surety, 217. Burge on Surety, 255. Nixon v. Palmer, 13 N. Y. Rep. 398.)

      A. R. Dyett, for the plaintiff, respondent. '
    He argued that the right of the plaintiff to recover was governed by the same principle as that which governs the rights of bona fide holders of promissory notes and biffs of exchange, purchasers of goods and mortgages, who are always protected against the secret frauds of others, (23 N. Y. Rep. 252; 6 Hill, 56; 21 N. Y. Rep. 531; 16 id. 125; 4 Kern. 623; 5 Bing. N. C. Rep. 142;) which is a totally different principle from that which charges a chose in action in the hands' of an assignee with the defense and equities of the original parties. He declared that Carlile was the agent of the defendant in delivering the guaranty. Whether he had power to deliver it for the consideration actually received was not the question. The question was whether Townsend had a right to believe such a power existed. He certainly had, and the defendant is bound by Carlile’s act. (21 N. Y. Rep. 531. 4 Kern. 623.)
   By the Court, Monell, J.

The learned Chief Justice, before whom this cause was tried, presented it for the consideration of the jury, in three respects :

First. If the jury should find that the defendant was applied to, to guaranty the bond, on a representation that Carlile wished the money for the purpose stated, and on a representation that Townsend would advance the money on bond and guaranty; and if the jury also believed that Carlile informed Townsend that he had made this application to the defendant, who had agreed to.guaranty the bond, and that afterwards, without any communication whatever with the defendant, Townsend arranged with Carlile, instead of loaning $1500, to give him the mortgage and note, then the defendant was not liable. This was the theory of the defendant’s defense, and the learned justice followed the decision of this court, when the Case was before them on appeal from a former judgment. (6 Duer, 276.) The view of the law thus presented, was most favorable to the defendant, and he took no exception. The jury were left to determine, upon the evidence, whether in this view of the ease the defendant was entitled to their verdict.

The second aspect in which the case was presented, involved the determination by the jury,-between the conflicting evidence of Townsend and the defendant, as to an alleged interview between them prior to the defendant’s giving the guaranty. And the jury were instructed, that if they believed that in that interview, Townsend communicated to the defendant that ■ he was to give Carlile the mortgage and note for the bond and guaranty, and that the defendant assented to it, the defendant was liable.

The third aspect was, that if the jury should find that Townsend believed that the transaction, as agreed to between him and Carlile, was known to the defendant; and had no reason to suppose any misrepresentation had been made by Carlile to the defendant, then the plaintiff was entitled to recover the $1075 actually received in money. And if they should further find, that the mortgage was intrinsically worth the sum secured by it, the plaintiff should have a verdict for the whole principal secured by the mortgage) with interest from the time of its maturity.

To this part of the charge the defendant excepted.

Each of these three propositions, it will be seen, involved the consideration by the jury, of the evidence pertinent to .each, and they haying found a general verdict for the plaintiff, we must assume that the facts have been found against the defendant. Hothing was withheld which could be legitimately considered by the jury, and their finding must be conclusive, upon the facts.

As the case is presented to us, I do not see any necessity for examining the part of the charge excepted to. Each of the three propositions contained in the charge was distinct, and applied the law to a different state of facts. They were wholly independent of each other, and even capable of separate examination. It is impossible to say, upon which the jury found their verdict, or whether they found it upon all. If they found it upon the second, then the defendant was not prejudiced by the legal proposition contained in the third; for no one can doubt that if Townsend communicated the arrangement to thé defendant, and he assented to it, he would be liable upon his guaranty.

Assuming, however, that the jury founded their verdict upon the propositions contained in the part of the charge excepted to, either wholly, or in connection with the other parts of the charge, let us see whether» the exception was well taken.

When this case was before this court upon the former ap-. peal, the facts in the case were materially different. Neither Townsend nor the defendant had been examined as witnesses; and the referee found as a, fact, that Townsend had notice of the representation of Oarlile to the defendant, that he, Townsend, would loan him $1500, upon his bond, guarantied by the defendant. Upon this state of facts, the very able opinion of the general term was pronounced; and they properly decided, that the defendant having agreed to become bound for $1500, to be advanced in cash to his principal tor business purposes, was relieved from liability, if the lender, knowing of such agreement, advanced but the equivalent of $1000, and adjusted the residue by discharging an old debt against the principal.

The court did not decide, nor did they intend to decide, that any misrepresentation made by the principal to procure the guaranty, wholly unknown to the lender, would vitiate the obligation. None of the cases cited by the learned judge sustain any such doctrine. They are cases where the creditor has agreed to advance a certain sum, and then without apprising the guarantor; has advanced a less sum; or, as in Evans v. Wagle, (5 Bing. 485,) where the defendant guarantied the plaintiff to the extent of £50, for any gold he might supply Evans, for the purpose of working in his business, and the plaintiff discounted the bills of Evans, and paid him partly in money and partly in gold. • In all these cases, the consideration for the guaranty was the agreement to do a certain thing, which after-wards was departed from, without the knowledge or consent of the guarantor. But I have been unable to find any case where the agreement between the creditor and principal debtor has been kept, that the surety or guarantor has been absolved from liability, for the reason that the principal debtor has concealed or misrepresented to the guarantor the true nature of the-agreement. And upon principle, as well as upon sound morals,-he should not he ; for by becoming security he has induced" the creditor to part with his money, upon an agreement, formed before the guaranty was made, which was the ■basis of the guaranty, and which he has faithfully kept. But there is authority for this.

In Van Duzer v. Howe, (21 N. Y. Rep. 531,) the defendants wrote their acceptance" on the bill and entrusted it to Webb, while it was in blank" as to the amount, relying upon Ms promise, that he would not fill the blank for more than $1000. He violated his promise by inserting $1200, and causing it .to be negotiated for that amount.

" The"'plaintiff discounted it without any knowledge of the fraud and paid the whole proceeds to Webb, and the" question was, which party was to suffer on account of the misplaced confidence reposed" in Webb. And the court say, it was the defendants, who, by entrusting their blank acceptance to the disposition of Webb, enabled Mm to commit the fraud.

- At most, in the "case at bar, the fraud consisted in a misrepresentation made by Oarlile to the defendant. Townsend was not a: party to the fraud. Th'e defendant entrusted his guaranty to Oarlile, reposing confidence in his representation, and Townsend parted with his money upon the Security of the guaranty, without departing from his agreement. Upon the authority of the case last cited, the defendant and not. Townsend must suffer for the misplaced confidence.

The appellant’s counsel substantially admits this to be the correct view; for Ms second point is, that the lender, without the knowledge or consent of the guarantor, but by collusion- with the borrower, diverted the guaranty from the purpose' "for"which it was given.”' Unfortunately for him, however, the jury did not so find; On the contrary, they found there was ho collusion with the borrower.

There was a conflict of evidence, as to whether Townsend was ■acting-in good faith, and whether Oarlile had made misrepresentations to; or had practiced a fraud upon the defendant." All these questions were fairly presented to the jury; and the jury having found that Townsend's connection with the transaction was not mala fides; and that if any fraud was practiced by Carlile upon the defendant, Townsend was not, even by indirection, a party to it, I can discover no reason why the defendant should not be liable.

In my judgment, there was no error, in the portion of the charge excepted to by the defendant.

If the views which I have here expressed are correct, then it follows that there was no error in refusing to charge as requested by the defendant. Had Townsend deviated from his agreement with Carlile, made before the guaranty was signed, he would have been bound to have communicated it to the defendant. Whether there was any such deviation was a question upon the evidence, for the jury, and was properly left to them.

The restriction of the recovery to the amount secured by the mortgage was most favorable to the defendant. But as Carlile’s liability on the bond was only to the extent of the value received by him, so the defendant could not be charged for any greater sum.

I think the judgment and order appealed from should be affirmed.


source: Caselaw Access Project

author: Robertson, J. White, J. (dissenting.)

license: Public Domain

text:
    Garrit S. Mott, plaintiff, vs. The Hudson River Railroad Company, defendants.
    1. The mere appearance of a fire consuming buildings in the vicinity of, but at some distance from, a railroad track in a city, the display of a red light upon the track, and requests by firemen and others to those in charge of an approaching train, to stop it, without giving notice of any reason for stopping, do not make it the duty of the latter to stop, so as to render the company, to which such railroad belonged, liable in damages to the owner of the burning buildings, for the cutting of hose lying across the track, by the train in passing slowly on, whereby the supply of water to extinguish the fire is cut off.
    2. The servants of a railroad company are not bound to stop a train when ordered to do so by strangers without giving a reason.

      3. Damages caused by the spreading of a fire, in consequence of the defendant’s negligently injuring a hose actually in use in extinguishing it, whereby the only supply of water available for the purpose was stopped, are too remote to sustain an action. White, J. dissented as to each point.
    (Before Robertson, White and Barbour, JJ.)
    Heard June 9,1863;
    decided December 30, 1863.
    Exceptions taken on the trial of the cause, and directed by the court to be heard in the first instance at general term, judgment meanwhile to be suspended.
    This action was tried, for the second time, on the 6th and 9th of February, 1863, before Justice Monell and a jury. A decision upon a former appeal, after the first trial, is reported 8 Bosw. 345.
    Some buildings belonging to the plaintiff, situated on the southerly side of Fifty-fifth street, and about 250 feet west of the 11th avenue, in the city of Hew York, caught fire early on the morning of the 15th of July, and the firemen of the city were engaged m putting out the fire ; water for extinguishing it being conveyed to the fire engines by a hose attached to a hydrant, several hundred feet distant from the fire, the hose being laid across the track of the Hudson Eiver Eailroad Company, near or just below the southerly line of 55th street. Water could be procured from no other source. The track of the railroad, at this point, was upon the 11th avenue. Between two and three o’clock, A. m., as the firemen were rapidly getting the fire under, an engine and freight train of the defendants’ came down the road from Albany, at its regular time,.and, passing over the fire hose on the track, cut it, and stopped the supply of water for the fire engines. From fifteen to thirty minutes elapsed before the hose could be replaced ; and in the meanwhile the fire had gained fresh head, and destroyed the plaintiff’s buildings. The hose was the property of the fire department of the city of Hew York.
    The fire was visible for many miles to the north of it, and its location could be distinctly seen from about. 65th street.
    A red signal lantern had been hung in front of a hose cart, standing close by the railroad track near 55th street, the red light, or eye of the lantern, being turned up the track towards the train, the track being straight, and the view unobstructed all the way down from between 60th and 59th streets. As the train approached the site of the fire, a fireman, standing on a ledge of rock, close by the track, waved his hat, and halloed to the engineer to “hold on.” The engineer instantly reversed the engine, and whistled to put on the brakes. The speed of the train, after that, was not more than four or five miles an hour. It stopped altogether between 55th and 54th streets. From about 59th or 58th street there were firemen on each side of the track, all the way down, halloing to the engineer to stop. The testimony as to the precise distance at which such warning was given, was conflicting. Much of it went to show that the warning, given by the fireman standing on the ledge of rocks, was given at 59th street. There was proof given that a train could be stopped within a distance of six or eight hundred feet. One witness testified that a freight train could be stopped on an ascending grade inside of three hundred feet. The grade of the railroad at 55th street, and approaching it from the north, ascended towards the south, at the rate of forty-four feet to the mile.
    Deeds were introduced by the defendants, proving that the roadway in the 11th avenue, at the vicinity in question, had been conveyed to them by the plaintiff and others for the uses and purposes of a railroad, “subject to all the rights and privileges of the public way,” the 11th avenue not being, at that time, regulated and graded for use as a public street.
    After the testimony was closed on both sides, the defendants moved to dismiss the complaint, upon the grounds: 1st. That the damages claimed were too remote. 2d. That the negligence of the fire department, and of the plaintiff, also, contributed to the injury ; and lastly, that there was no evidence of the defendants’ negligence.
    The court directed the jury to render a verdict for the defendants; to which direction the plaintiff excepted. The court ordered this and the other exceptions in the case to be heard in the first instance at the general term; judgment to he in the meanwhile suspended.

      David Dudley Field, for the plaintiff.
    I. The court erred in excluding the corporation ordinance offered in evidence by the plaintiff, forbidding any vehicle to be driven through any of the streets of Hew York, at a greater speed than six miles an hour."
    1. The defendants had shown that they were running at a speed greater than twenty miles an hour, upon the 11th avenue, within the- city of Hew York. Their very ground of. defense was that their speed was so great they could not stop the locomotive in time. If they were committing an unlawful act, they were certainly liable for its consequences, and it was to show that they were committing an unlawful act, that the ordinance was offered. That they were running through the streets of the city appears from the maps and from the corporation ordinance.
    2. The evidence was also competent as bearing upon the question of negligence. The negligence of the defendants was directly alleged by the complaint, and denied by the answer, and was thus rendered a material issue in the case.
    The ordinance offered by the plaintiff, in prescribing the lawful speed for. vehicles in the streets of the city, defines, in this respect, by a precise measure, the degree of care which the defendants were bound to exercise in running their trains. A violation of a rule thus prescribed by law would plainly be culpable negligence. (Johnson v. Hudson River Railroad Co. 6 Duer, 635. S. C. 20 N. Y. Rep. 75.)
    II. The court erred in excluding the questions “ What were the best brakes in 1857,” and “ How quickly, with ordinary brakes, could a train be stopped.” 1. The defendants were bound to employ all the best modern appliances, and it was, therefore, pertinent to inquire what were the best brakes in use at the time, of the occurrence. It afterwards appeared that the brakes used were only common brakes, and that Creamer’s attachment which was then in use, but which was not used on this train, would stop trains one third quicker, and that the company were then using them on passenger and other trains. (Smith v. New York and Harlem Railroad, 19 N. Y. Rep. 133. Hegeman v. Western Railroad Corp. 3 Kern. 9.)
    III. The plaintiff’s objections to the admission of evidence should have been sustained, and the deed from the Mott heirs, and the deed from Harsen and others, should not have been admitted in evidence.
    IV. The direction of the judge to the jury to give a verdict for the defendants, on the ground that there was no evidence of the defendants’ negligence, was wrong.
    1. By a perusal of the previous exceptions, it will appear, that the court repeatedly excluded evidence tending to show negligence. After that, this ruling, based on the very idea that no such evidence was produced, was-making a rule work both ways against the plaintiff. But there was quite evidence enough to go to the jury upon the question of negligence, on the case as it stood. When there is a scintilla of evidence on a mooted point, it is the plaintiff’s right to have it passed upon by the jury, even though the court may be convinced that the jury would have decided against him.
    2. Upon the whole testimony we have this state of facts : The precise locality of the fire could have been readily ascertained by the engines at Sixty-fifth street; the distance from there to Fifty-fifth street, as shown by the map, and as the court must judicially know, being ten blocks, exceeds 2,700 feet. No effort was made to stop the train, but near Sixtieth street, it was running so slow that a man could overtake it— not more than six miles an hour. A scientific witness says they ought to have stopped within 300 feet, and their own conductor says, that going at eight miles an hour they could have stopped in 600 to 800 feet. Yet they ran six blocks, or over 1600 feet, before they stopped, and they had but four brakemen for all this long train. If there is not sufficient evidence of negligence here to be considered by the jury, then it is hard to conceive of a case where negligence could be established, unless it were expressly admitted by the defendant or his servant.

      Thomas M. North, for the defendants.
    I. The defendants did not commit any negligent act, or omit any duty which they owed the plaintiff.
    1. They were running their train, as authorized by their charter, upon land purchased by them from the plaintiff for the purpose of a railroad. The land on which the hose was laid was at the time the defendants’ private property. Their title had not been divested, nor had the public acquired any title, nor was this part of the 11th avenue open or graded.
    2. The train was passing at the usual time, and had been running at the usual speed till it approached this locality, when it was so reduced as that at 59th street it was only five or six miles an hour.
    3. It had an ordinary engine, the ordinary number and kind of cars, and the usual number of brakemen and other employees, and the ordinary appliances for stopping the train; and it is quite uncontradicted that, as soon as the engineman knew of the locality of the fire, or of any necessity for stopping his train, he at once used every means in his power to stop, and brought his train to a stand still, as soon as it was possible for him to do so.
    4. Ho principle of law required the defendants to foresee and provide against this casualty. As to their passengers and freight, the rule is of course different; but as to the plaintiff, they were not bound to know that the hose was upon the track, nor to give timely notice to their engineman, nor to provide a more powerful head-light, nor extra brakeman, nor patent brakes, nor other means beyond those usual for the management of that train.
    II. This action can not be maintained unless the court are prepared to hold that the owner of any premises, through which hose are laid to extinguish fire in an adjoining house, is liable to pay for all losses in the conflagration traceable to his negligently interrupting the flow of water through the hose, while doing lawful acts on his own premises.
    III. The damages sought to be recovered are too remote. They are neither certain in their nature, nor in the cause from which they proceed. They are not the legal or natural consequences of the acts imputed to the defendant.
    1. In cases of deliberate or malicious wrong, the law affords liberal relief; and in case of mischievous acts injurious to others, the party in the wrong is often made answerable for consequences very remote from the original act.
    2. But in cases of tort without aggravation, where the conduct of the defendant can not be considered so morally wrong or grossly negligent as to give a right to exemplary or vindictive damages, the extent of remuneration is restricted to the immediate consequence of the act. (Sedgwick on Damages, 82.)
    3. The party complaining in such a case must show that the particular damages in respect of which he proceeds are the legal and natural consequences of the wrongful act. (Clark v. Brown, 18 Wend. 213, 229. Hutchins v. Hutchins, 7 Hill, 104. Academy of Music v. Hackett, 2 Hilt. 217. Terwilliger v. Wands, 17 N. Y. Rep. 63. And see Crain v. Petrie, 6 Hill, 522; Lamb v. Stone, 11 Pick. 534; Kennedy v. Ray, 22 Barb. 514; 1 Chitty Plead. 388; 8 East, 3; 2 Taunt. 314; 19 John. 228 ; 21 Wend. 342; 16 N. Y. Rep. 489; Donnell v. Jones, 13 Ala. R. 490, quoted in Sedg. on Dam. p. 83; Anthony v. Slaid, 11 Metc. 290.) See remarks in Sedg. on Dam. pp. 87, 88, on the case of Dewint v. Wiltse, (9 Wend. 325.)
    IY. After the hose was cut, a part of the property subsequently destroyed (the shingles) might have been removed and saved. It would be unjust to hold the defendants responsible for their being left there to burn up.
    Y. The ordinance offered in evidence was properly rejected. (Brown v. Buffalo and State Line Railroad Co., 22 N. Y. Rep. 191. Altreuter v. Hudson River Railroad Co., 2 E. D. Smith, 151.) This locality was in no sense a street.
    YI. Other exceptions to evidence áre also untenable.
   Robertson, J.

The track where the hose of the fire department received, the injury,, which temporarily prevented the use of water to extinguish the flames in the plaintiff’s build-dings, was the ordinary railroad track of the defendants. The train which injured the.hose arrived at the usual time at which it habitually arrived at such locality; it came down with its ordinary speed; no means were provided beforehand to notify the defendants that their track was occupied in ■ an unusual manner. There is no evidence that such hose .could be seen by the defendants’ employees on such train, more than sixty feet in front of the engine, and the engineer testified he. did not see it. Ho data were furnished, on the trial, rendering it imperative on such employees to know, that such hose, was on the track, even if they knew the exact location of the fire, which was several hundred feet from such track, and they were not bound to infer the existence of the hose from the existence of the fire. The shouting of a fireman within several blocks of the fire, of the danger to the hose, could not have been heard amid the noise. The engineer reversed the engine as soon as he was notified of something wrong, which was within a few blocks of the hose, and all the brakes were immediately applied. The speed of the train had been diminished to that of four or five miles an hour, and it was in process of being stopped altogether when it cut the hose.

Ho effort was made to prevent the consequences of negligence on the part of the defendants, by removing the hose out of the way of the engine, or preventing its being cut by drawing it off into the ditch adjoining the track, by uncoupling the lengths or otherwise, or raising it so as to avoid going under the wheels. (Chase v. N. Y. Central R. R. Co., 24 Barb. 273.) The only effort made was to stop the engine by shouting. The defendants’, train was furnished with the ordinary means of stopping it; which were promptly used. Patent brakes (Creamer’s) not then fully tested, were not used. Without notice to the defendants’ employees of the presence of the hose on that occasion, in sufficient time to have stopped the engine going at its ordinary speed before reaching it, they were not respongible for the result. The mere existence of a fire within five or six hundred feet of their track, if its locality could be determined with certainty ten blocks off, was not notice to stop the train; The gradual slackening of speed on . this occasion seems to have been more intended to comply with' the shouting and prevent injury to the crowd, or avoid some unknown danger, than to protect the hose. How a hose carriage with a red lantern suspended behind becomes a signal of danger is not explained. The mere desultory orders of firemen or others to stop a train, did not call upon the engineer to do so, without notice of some danger ; and none was notified; If a rail-j road company were bound to stop its trains every time any| one ordered them to do so, without giving any reason, or every/ time there was a fire near its track, its business;, would be\ seriously interrupted.

Knowing -the time of the arrival of the train, there was time enough after the arrival of the fire engines,, to have placed sentinels far enough up the line of the road to notify the train of the difficulty in time to stop it. ■

Besides , this, the act of the ’defendants was not the immediate cause of the injury to the plaintiffs; it was only immediately the cause by destroying the instruments used to prevent injury. It is true, they were then actually in use, but the same principle must govern if they were just being prepared to be used or on their way, or even kept in readiness for use. If the hose cart was on its way to the fire and interrupted by illegal obstructions in the street, or injured. by a locomotive, the plaintiffs might have lost’the benefit of it; or if any one negligently lost the key of its house, so/ that it could not be got out in time, or if any one having contracted to repair the hose within a certain time, failed to do it; in all these cases the negligence of the delinquent party might more or less contribute to the result of destroying the plaintiffs’ property, yet as a result of the negligence, the consequences would be too remote to make him liable' for damages. Where there is neither willful mischief, contract or fraud, (Clark v. Brown, 18 Wend. 223, 229 ; Anthony v. Slaid, 11 Metc. 290; Acad emy of Music v. Hackett, 2 Hilt. 217;) and even in case of a contract, if there was no fraud, (Blanchard v. Ely, 21 Wend. 342,) only the immediate consequences are to he compensated for. Besides, the determination of the amount lost hy the defendants’ negligence, would he very vague and speculative. (Butler v. Kent, 19 John. 223.) A witness on this trial testified that many of the articles might have been saved if they had been carried away.

None of the exceptions to evidence were well taken. The exceptions must be overruled, the motion for a new trial denied with costs, and the defendants allowed to enter judgment.

Barbour, J. concurred in this opinion.

White, J. (dissenting.)

Abstractly considered, the act of cutting a fire hose is not tortious or negligent. It may become so when considered in connection with some other fact; such as that it was cut by a stranger and without or against the will of the owner; or, as is charged in this case, that the cutting of it deprived some person of a benefit or advantage, of a value appreciable in money, which he was then lawfully enjoying from its use.

Cutting or destroying fire hose, provided for use by a com- • munity, when no fire existed, and the hose was not in actual use at the time of the cutting, would not give a member of that community, whose house should afterwards be burned down, a right of action for damages caused by the destruction of his house, although it might be ever so probable or clear that if the hose had not been cut, its use would have enabled the owner of the house to extinguish the fire and save his property. The damages would in that case be too remote; that is, they would be so remote that other acts or negligences intervening might be chargeable, to some extent, with the disaster ; and courts will not speculate in such cases, in order to determine whether any, or how much, of the damage is due to a particular act complained of.

But in the present instance, the hose was actually conveying water upon the plaintiffs’ burning building, and rapidly extinguishing the fire, when it was cut. The plaintiff was instantly deprived by this act of the flow of water upon his house, and the flames that had been going out under the action of the hose, immediately rose and destroyed that and other property owned by him. It would be difficult to state a case of more direct or immediate damage resulting from a specific act: Injuries, for example, sustained by being thrown from a wagon in consequence of the wheel being knocked off by coming in contact with an obstruction negligently left in the carriage way, would seem to be a more remote damage than the one under consideration ; and yet such an injury has never been regarded as too remote to permit the maintenance of an action for damages caused by it.

That the hose was the property of the fire department can1' not affect the question. The plaintiff was in the enjoyment of the use of the hose by the will and authority of the depart-. ment; and the defendants had no more right to deprive him i of that use than if he were the absolute owner of the hose. But besides this, the fire department is a municipal organization to the'services of which every citizen is-entitled, notwithstanding that the members of the department give their services voluntarily. They are vested with many privileges in consideration of the labors and risks they undergo, and their services, so long as they continue members of the department, are matters of duty and obligation, and not naked gratuities. No fireman could destroy, or take up and carry away a hose while it was actually playing upon a burning building, without subjecting himself to civil and perhaps criminal proceedings, if it should appear that the building was destroyed in consequence of his act.

The learned judge, on the trial, disregarded the objection, that the damages alleged to' have been caused by the defendants were too remote, and I refer to the point thus particularly only because the case has been already twice before the court upon appeal, and upon each occasion the objection was, to some extent, discussed, but not decided. . .

On the question of negligence, I think the learned justice who tried the cause, erred" in- directing the jury to find a verdict for .the defendants. There was testimony that the engineer of the train could plainly see the location of the fire at or about Fifteenth street, a distance of half a mile ; that ah Fifty-ninth street, more than one thousand feet from the loca-* tion of the hóse, he was called to, and saw and heard a fireman shouting to him to stop ; that the train was then almost instantly, by - a reversal of the engine, brought down from a speed of-eighteen or twenty miles to a rate of about four or five miles an hour; that there was a crowd, or number of firemen all along the track in front of the' locomotive ; but that, instead of stopping the train altogether, as some, if not all, of the testimony shows that he might have done before it had reached the hose, he ran' it along the residue of the way smoothly at that rate of four or five "miles an hour until he cut the hose. \

There is no -testimony in the case that does not show that the train could have been stopped on that up grade inside of eight hundred feet; there is. testimony that it could have been stopped within two hundred or three hundred feet; • and there is testimony, as I have already observed, that the engineer was'warned to stop, considerably more than eight hundred feet north' of the hose that was destroyed. The evidence in the case would justify the jury in believing, if so disposed,that the engineer did not, at the time, think it necessary to stop the train absolutely; but that .after reversing the engine, to use a railroad word, he only slowed the train, putting it at a low rate of speed, and expecting to stop if any obstruction appeared, before any damage could be done. In this he was mistaken; and if. the jury should conclude that he acted as is here supposed, the defendants should bear the consequences of his error. With respect to the proof that was given-of what the servants of the- defendants saw, or did not.see of the impending' danger, I will remark, that it is not the fact, that a "defendant or his servants -mistook, or misapprehended or failed altogether to see certain' appearances or objects, that can excuse him. The true inquiry is, was there any thing that he might have seen, or heard, that would have been sufficient to notify and put him upon his guard against a. near danger ? In cases of this character an engineer or conductor entrusted with so much dangerous power, should be held to the strictest rules in its use and management; and when warned of danger ahead, he should be required to stop his train altogether, and ascertain the nature of the' difficulty in his way.

The questions are fairly presented in- this case.

1st. Were the defendants’ servants notified that there was danger in proceeding further ? and

2d. Could they, after such notice, have stopped the train-before reaching the fire hose P

If the jury should find affirmatively upon these questions, and render a verdict for the plaintiff, I do hot believe it could be set aside as against evidence.

I think the corporation ordinance limiting the speed of travel on the streets of the city was properly excluded. The track of the railroad at that point was not at that time one of the streets of the city regulated and thrown open, for public use as a street.

So also there was no error in admitting the deed offered by the defendants. It might have been important for them to show that they were not trespassers in running their cars upon that track. But proof of the defendants’ ownership of the track or way where the hose crossed it, would not affect the plaintiff’s right to recover, if otherwise entitled. The right tot temporarily interrupt travel by running fire hose, when necessary for subduing a fire, across a street or public way - in the city of Kew York, is one that can not he questioned. To deny its existence would be often equivalent to giving over the city to a general conflagration ; and for a private road or street interposed between a hydrant, or other supply of water, and a fire, no greater exemption can be claimed.

In my opinion, upon the ground that there was sufficient testimony in the case to require that it should be submitted to, and passed upon by the jury, a new trial should he ordered, with costs to abide the event.

Hew trial denied.


author: By the Court, White, J.

text:
    Robert Larter, Jr. plaintiff, vs. The American Female Guardian Society, defendants.
    In an action against a corporation, for a breach of a contract by their agent to employ the plaintiff as the printer of a periodical published by them, where the only evidence of the authority of the agent to make such contract was the fact that he was daily employed about their business in their building, and paid the plaintiff for his work, or certified his bills upon which the treasurer paid him, and that the paper for printing Was received from and returned to the defendants’- establishment by the plaintiff; Seld that this was not sufficient proof of a contract binding upon the defendants.
    (Before Robertson, White and Barbour, JJ.)
    Heard June 10, 1863;
    decided December 30, 1863.
    Exceptions taken on the trial, and directed by the court to he heard in the first instance at the general term, and judgment meanwhile to he suspended.
    The defendants in this action were a corporation. The cause was tried ón the 26th of January, 1863, before Justice Bobertson and a jury. The material facts appear in the opinion of the court.

      Moses Ely, for the plaintiff.
    I. The contract and the withdrawal of employment from the plaintiff were clearly proved at the trial. The ruling of the court upon the question of damages, was evidently upon the theory that admitting the contract to be the defendants’ they were entitled to put an end to it at pleasure. The objections to the evidence as to damages were general, and were not put, nor were the rulings made upon the ground of irregular order of proofs. The court having by those rulings ex-eluded all evidence as to damages, it became immaterial and useless for the plaintiff to proceed with proofs that the contract was actually made with the defendants.
    II. There was sufficient evidence to go the jury that Angelí was the agent of the defendants, and the making of this contract was within the scope of his authority as such agent.
    1. The conduct of Angelí in his general identification with, and management of the defendants' business, at their place of business;
    2. The representations made by Angelí as to his express authority to bind the defendants by this particular contract;
    3. The subsequent dealings of the defendants with the plaintiff under this contract, were admissions that the contract was theirs from the beginning. (Long I. R. R. Co. v. Marquand, 6 N. Y. Leg. Ob. 160. Steam Naviga. Co. v. Weed, 17 Barb. 378. Hoyt v. Thompson’s Exr. 19 N. Y. Rep. 208.)
    4. The pleadings establish it.
    5. Whether the making this contract for the defendants was within the scope of Angell’s authority or not, his conduct and that of the defendants themselves were such as to raise the reasonable inference in the mind of the plaintiff that it was, and thus to estop the denial of it by the defendants. (Perkins v. Washington Ins. Co., 4 Cowen, 645.)
    III. Whether Angelí was originally authorized to make the contract on behalf of the defendants or not, their subsequent' dealings with the plaintiff, under the contract, whereby they accepted its benefits, was a ratification of the- contract. (Fister v. La Rue, &c. 15 Barb. 323.)
    IV. The court erred in the rulings upon the question of damages.
    1. The withdrawal of the work from the plaintiff was a direct violation of contract, and entitled him to damages. By the terms of the contract the plaintiff was to have the work so long as he should do it in a “workmanlike manner,” and he had made all his business engagements and arrangements, and had made great expenditures and incurred great liabilities in expectation of continued employment.

      2. The fact that the contract" was for an uncertain period, in no way affected • the validity of any part: of it. ■ A contract may be determinable upon the happening of an uncertain contingency, as well as upon the maturing of a certain date. The authorities are numerous in which this doctrine is practically recognized. : Masterton v. The Mayor, &c. (7 Hill, 61;) Jones v. Shears, (7 Car. and Payne, 346;) are instances of them. Neither McLees v. Hale, (10 Wend. 426,) nor Palmer v. Vandenbergh, (3 id. 199,) establish a contrary principle as applicable to the facts of this case. .....

      John E. Parsons, for the defendants.
    : I. The contract was not made with the defendants directly, . and" there -was no evidence of Angell’s authority to bind them to it..- Agency can not be established by the acts or declarations' of the agent only. (1 Cowen and Hill’s Notes to Phil. on Ev. p. 412, 3d ed.) There was no attempt made to prove that Angelí had,;on any other occasion, made aify similar contract- which the defendants, bad-approved, or: of which they knew. = Nor did the plaintiff seek to prove, in any other way, implied authority .to=Angelí. *' • c¡
    II. It :did. not appear that the defendants ■ ever knew - of the existence of the contract, so that of course, there could be no evidence of any: ratification of it by'them. (Seymour v.. Wyckoff, 6 Seld. 213. Nixon v. Palmer, 4 id. 398. Gorham v. Gale, 7 Cowen, 739;) ' ,
    ■III. The agreement, that-the contract should.be binding on the defendants, as long as'the'plaintiff did the" work in a workmanlike manner, was hot sustained by any mutual obligation binding' the plaintiff for any length of time, and so would have been void even had the agency df Angelí been established.' ¡The defendants could .not,“in the .language of the"plaintiff’s witness, Henry, be c? perpetually” bound, without some- correspondingagreement perpetually binding the plaintiff;'-o Such a ¡contract" is .determinable by either party at any time. .

      IY. Had the plaintiff established the defendants’ liability, the damages, as to which evidence was excluded, were too remote.
   By the Court, White, J.

The plaintiff in this action alleges that he made a contract with the defendants, by the terms of which he was to do the press-work of a newspaper, or periodical, published by them semi-monthly, for certain stipulated wages or compensation, and that this employment was to be continued to him so long as he did the work in a workmanlike manner; and his complaint further states, that at the expiration of one year the defendants took the work from him, against his will, and refused to employ him any longer, although he tendered his services, and requested them to give him the work.

The defendants deny the making of the alleged contract with the plaintiff, but state that he did press-work for them, and deny that, he did it in a workmanlike manner; and they also allege, that at or near the close of the year he refused to do the work except for higher wages, which he demanded.

The proof on the trial was, that the"plaintiff made a written' contract of the character stated in the complaint, with one Angelí, who professed to be authorized by the defendants to make such contract, on their behalf; and it also appeared, that the plaintiff did press-work under that contract for one year, but that some of it was not done in a workmanlike man, ner; that towards the close of the year he complained to Angelí of the inadequacy of the compensation or wages he received, and claimed a higher rate of pay. But no proof was given, that Angelí had authority to make the special contract above mentioned, so as to bind the defendants by it; the only proof of his agency being, that he was daily engaged in and about the defendants’ business and building, and paid the plaintiff for his work, or certified the bills for it, so that the treasurer of the society paid him; and it also appeared that the paper for the press-work was received from and returned to the defendants’ establishment by the plaintiff; there was no testimony to show that the defendants had any knowledge that the special contract was made, or knew that the plaintiff was doing work for them otherwise than from day to day, • and at their will and option as to its duration and extent.

Upon this testimony the court at the trial dismissed the complaint on the ground that the contract or agreement set up by the plaintiff had not been proved; in which decision I can discover no error. And the making of the contract not being proved, the learned judge was necessarily right in excluding, as he did at the trial, testimony offered to show damages sustained from a refusal of the defendants to comply with its alleged stipulations.

The motion for a new trial should be denied, and judgment rendered in favor of the defendants upon the decision of the judge at special term, - with costs, including the costs óf this appeal.


author: By the Court, McCunn, J.

text:
    The Sun Mutual Insurance Company, plaintiffs and appellants, vs. Joseph D. Davis and others, defendants and respondents.
    A. and B. being jointly interested in the shipment and sale of merchandise, agreed that as part of such joint enterprise, A. should procure-insurance on such merchandise for the benefit of both, and at their joint expense. A. sub- ' sequently procured such insurance on such merchandise from the plaintiff, by a policy insuring him, loss payable to “whom it might concern,” and agreed that the parties for whom such insurance was effected should pay the premiums of insurance agreed upon therefor.

      Held that in such case the policy was obtained in pursuance of the original, agreement with, and authority from, B. That A. had authority to bind B. for the payment of the premiums and did so. That the terms of the policy did not vary the liability of B., against whom jointly with A. the plaintiffs were entitled to recover the premiums due.
    (Before Robertson, Ch. J., Garvin and McCunn, JJ.)
    Heard-, 1864;
    Decided June 7, 1864.

      This was an appeal from an order sustaining a demurrer to the plaintiff's complaint, made by Justice Baebour, on the 21st day of December, 1866.
    The complaint alleged that two firms, William Grove & Oo., of New York, and Davis & Toscano, of Cuba, entered into a partnership to buy and ship sugars from Cuba to New York; that it" was agreed between all the partners, that “ Grove & Co./' the members of the firm in New York, were to insure the goods so shipped at the joint and equal expense of both firms, out of the proceeds of the shipments. That on being advised of the shipments, “ Wm. Grove & Co.” applied to the plaintiffs to insure the goods for the joint and equal account and interest of all the defendants. And that, in consideration of the premiums agreed to be paid by the new copartnership, the plaintiffs did, in an open policy, for whom it may concern, and upon which, by its terms, shipments of the said description were applicable, and which policy had been effected by and in the name of Wm. Grove & Co. some time previous, allow the risks to be entered-; that the defendants paid, on account of said premiums, $444.24, and that there remained a balance due and-owing for which they asked judgment.

      J. F. Choate, for the plaintiffs, appellants.

      W. H. Anthon, for the defendants Davis & Toscano, respondents.
    I. The defendants, Davis & Toscano, are not liable as beneficially interested, there being no privity of contract between the insurance company and any party, except William Grove & Co. The policy being in the usual form, insuring them in consideration of premiums paid, loss payable “to whom it might concern.”
    1. The terms of the policy as set forth in the complaint, are plain and unambiguous. William Grove & Co., and they alone, are the parties to whom the plaintiff is to look for the premums,'and no parol evidence can now be adduced to change the nature and effect of that contract.
    2. The contract was with William Grove &'Có., and any credit for the premiums was given to them. The remedy of the insurer is confined to the party to whom the credit is given. (See 2 Duer on Insurance, 301, and English cases cited.) ' .
    3. These views are particularly pertinent to an open running policy, like that mentioned in the complaint, intended, doubtless, to cover the general business of the insured, in regard to which the company must .look for their, premium expressly to the; firm with whom the contract is made.'
    II. They are not liable as partners of William Grove & Co. in this particular adventure.
    1. The policy does not treat the two firms as partners. It is made with “ William Grove & Co." alone. “ Where any contract is made by: one partner upon his own exclusive credit, he alone is liable, therefor, and the partnership, although the money, property, or other contract is for their own proper use and benefit, and is applied thereto, will in nó manner be liable therefor.”. (Story on Partnership, 212.)
    2. Notwithstanding their copartnership, either of the copartners may contract, on his own account and make himself alone liable for merchandise, although bought for copartnership account, if the vendor chooses to accept him. ■ " (Opinion of Parker, J., Sylvester v. Smith, 9 Mass. R. 121.) .
    3. The only exception to this rule is the case of dormant partners ; because, in general, it may be claimed that a man can not be- said to agree 'to look exclusively to one person, when he is not aware that there is another interested. This reason, however, will not apply to the present case, because the form of .the policy in favor “ of whom it may concern ” is ¡ in fact a recognition and allowance of assignees, dormant partners, or any one else who can prove an interest.
    •• 4. The:plain meaning, therefore, of this policy is, that the plaintiffs' look to “William Grove.& Co.” alone for the payment of the premiums, with full knowledge that others are interested, being willing that all the world should claim the -benefits of the insurance, provided they proved interest.
    III. Davis and Toscano not being liable either as persons interested or as partners, the demurrer should be sustained.
   By the Court, McCunn, J.

In discussing the merits of this demurrer, we are not warranted in looking at the facts in any other light than as the complaint presents them, because the interposition of a demurrer admits the truth of all the allegations contained in the complaint, and the only question to be determined is, whether a judgment entered upon these facts would be good and valid in law. I am clearly of opinion they would warrant the entry of a judgment thereon, in favor of the plaintiffs.

The policy declared on' is an open policy, and is in the ordinary form, and contains the usual clause, for whom it may concern, and it had been effected by William Grove & Go., before the partnership between them and Davis & Toscano was formed, yet the company had a right to select their risks thereunder, and as they thought proper to assume these risks in consideration of the premiums agreed to be paid by the defendants, they are clearly entitled to recover.. It is true the policy was effected in the name of William Grove & Go., but no presumption of law arising on the face of the policy can presume away an express promise made afterwards, by other parties, for a full consideration. Moreover, one half of the sugars entered under the risks were the goods of Davis & Toscano, and under this form of policy they had a right to enter these shipments as risks, and consequently they had an interest in, and were entitled to, the benefits of the policy, and by virtue of mutuality of contract they became liable to the insurers. (3 Kent’s Com. 344, 9th ed. 2 Caines' Rep. 203.) * •

And for all that appears in the complaint, the policy may have been effected by Wm. Grove & Go., in their own name, to cover these very risks ; at any rate, the complaint alleges • that all the parties agreed to pay, or be responsible for the premiums at the time the risks were entered, and it was for this consideration the risks were assumed by the company.

It may be remarked here, that the facts set out in the points offered to sustain this demurrer can be conveniently set up in the form of an answer. ■

The order must be reversed; the defendants to be permitted to. withdraw their demurrer- and answer within twenty days, upon payment of costs.


author: By the Court, Bosworth, Ch. J.

text:
    Wm. S. Woods, plaintiff and respondent, vs. Louis F. De Figaniere, defendant and appellant.
    1. A party to an action within the meaning of the Code is one who is named plaintiff or defendant, and appears on the record as such.
    2. Thus, where the nominal defendant was the president of an unincorporated joint stock company, and the demand in suit was against the company only; Held, that he was the party defendant, and might he required to submit to examination as such.
    3. An order for the examination of the adverse party before trial, is not invalid because the fact that the cause is at issue does not appear by affidavit.
    4. A party who was summoned to appear for examination under section 391 of the Code of Procedure, sent his attorney on the return-day to claim that his examination was unauthorized. Held, that this, if not a waiver of his rights to mileage, was, at least, an admission of the sufficiency of the sum which had been paid to him; and threw upon him the burden of showing that proper mileage was not tendered.
    5. To authorize the punishment of a party for contempt, in refusing to be examined under sections 390-393 of the Code of Procedure, it need not appear that the misconduct was calculated to, or did, defeat, impair, impede, or prejudice the rights or remedies of any party, as required by 2 Revised Statutes, 538, section 20, in ordinary cases of contempt.
    (Before Bosworth, Ch. J., and Moncrief and Robertson, JJ.)
    Heard January, 2, 1868.

      Appeal from an order declaring the defendant in contempt, and directing that his answer he stricken. out unless he submitted to examination.
    This action was brought by William S.. Woods and others against Louis E. De Eiganiere, president, &c. The demand in suit was against a joint stock company, of which the defendant was president. A summons was issued, requiring the defendant to appear and be examined, pursuant to section 391 of the Code. The defendant declined to appear, and it was subsequently directed that an attachment issue against the defendant, and that his answer be stricken out unless he appeared and submitted to examination. Erom this order the defendant appealed.

      Daniel M. Porter, for the appellant.
    I. The "summons for the appellant’s appearance was obtained without any proof that the cause was at issue, which is- necessary. (3 Sandf. 718.) By the Bevised Statutes, no testimony" could'be "taken before trial, without an affidavit specifying certain facts essential, and must show the cause is at issue, (1 Code, 128 ; 6 Cowen, 400 ; 2 John. 478 ; 3 id. 259,) or an excuse for applying before issue. In all cases, ah affidavit was necessary. The copy of the affidavit must be served. (3 Sandf. 719. 1 id. 713,) By section 392 of the' Code, it is substantially enacted that the judge may require the attendance of the-party, upon the proof being made to him which would authorize a conditional examination. An affidavit . » showing the cause is at issue is essential to the application. "(6 Cowen, 400. 3 Sandf. 718.) Again, by the law, a party seeking a remedy must first show he is entitled to it. He can not get an order or process, and make, his affidavits afterwards.
    Before a party can institute proceedings which he intends to make the foundation, of a tortious conviction upon any action of a court or judge by order or other process issued by the court or judge, the facts- necessary to warrant such order or process must be shown to the judge, and the party be served with the process. The party must "show that he has taken all necessary steps, and that all the events have happened .which would authorize the judge or court to grant the process at the time he applies for the process, and that affidavit must be, served. (Allen v. Hendree, 6 Cowen, 400, and the authorities above cited.)' It was conceded that the subpoena, hád once been denied by the chief justice, and it was also irregular and .void. (Draper v. Henningsen, 1 Bosw. 611. LaFarge v. LaFarge Insurance Co., 14 How. Pr. 26.)
    II. The appellant is not a party within section 391, but the joint stock association is. The judgment will be not against the appellant, but against the association, and can only affect their joint property. ' (3 R. S; 5th ed. 777.) The defendant is not sued in a representative capacity, but the association is sued as a body, by serving him, and in his name, as president. The action in effect is as if against a corporation, as only the property of the whole body can be affected by the judgment. It- does not appear that the appellant is á member of the association ; he could be and act as the officer, and be a mere clerk. FTor does the fact that as between themselves the associates are copartners, for by the statute they are for the purposes of this action a body aggregate. It can not be claimed where a corporation is sued through its president that he is the party defendant, but the corporation is. ■
    III. This examination can not be based upon the principle of an old bill of.discovery, nor is there an affidavit of its necessity. (3 Sandf. 719.) Again, bills of discovery were allowed because the party could not examine his adversary at the trial. The Code, which abolished the discovery, made the examination at the trial legal. The reason for the discovery ceasing, it was abolished. By giving effect to that part of the order which strikes out the answer, being in substance the answer of many persons, would but punish parties who had .committed no offense. (Anderson v. Johnson, 1 id. 713.)
    IY. The order is erroneous. 1. It is not alleged therein that the misconduct alleged was calculated to and did impair, defeat, impede,,and prejudice-the rights or the remedies of the plaintiff, which the court must find and embrace in the order. (9 Paige, 372. 2 id. 183. 3 R. S. 5th ed. 852, §§ 1, 2. People v. Compton, 1 Duer, 512.) 2. It does not appear that the original summons was shown to the appellant. 3. It does not appear that the fees of the witness were' paid him, as required by 2 B. 8. 401, § 44. . '
    V. The order appealed from directs an attachment to issue, and is made at special term, where, by 2 B. 8. 401, § 46, only the judge or officer issuing the summons can issue his warrant, and bring the witness before the officer. Section 47 directs that upon the party being brought before the officer, and refusing to he examined, the officer, by warrant, may commit- him to the common jail; by these sections, no other than the judge or officer issuing the summons can act. The order to show cause upon which this motion is based, is for non-attendance, and not for-refusing to he examined. If the order was for the -latter, it would be defective under section 48. In the case of Draper v. Henningsen, (1 Bosw. 611,) this court held that, by section 392 of the Code, a party may be compelled to attend in the same manner as a witness to he examined conditionally. Section 394 declares the consequences of a refusal to attend and testify. But sections 390, 391, are all the sections that prescribe the manner in which the examination of a party may be had.

      Anthony R. Dyett, for the respondents.
   By the Court, Bosworth, Ch. J.

A further consideration of the subject matter of this appeal confirms the convictions formed on the argument before me at special term-. In addition to the reasons there assigned for granting the order appealed from, the following seem to me to be pertinent and conclusive.

1. The Code • declares that Cl a party to an action may he examined as a witness, at the instance of the adverse party,” (§ 390,) and" that this may be had at any time before the trial. (§ 391.)

What does the Code here mean by the words, “ a party to an action ?” Clearly, it means any and every person, who, throughout its provisions, is described as a party to an action. A party to an action is one who is named as plaintiff or defendant, and appears on the record as such, and no other is meant.

The title parties to civil actions” prescribes who may sue as plaintiffs and who may be sued as defendants.

By section 134, the summons is to be served on the defendant personally, except when served on a corporation, or a minor under the age of fourteen years, or the persons named in subdivision three of that section.

Pleadings, when verified, must be verified by the party, except in the case of a corporation, or where they are verified by an agent (Gode, § 157,) on a sufficient excuse being shown therefor. •

The summons in this case was served on De Figaniere as a party to the action, and the answer is verified by him as the defendant in the action.

All the provisions of the Code, as a general rule, when treating of parties to the action, mean only the parties to the record, whether nominal parties, or the actual parties in interest. And where a plaintiff or defendant is but a mere nominal party, and has no interest in the event, and his property can not be touched by the judgment, he alone is included in the description of a party to the action ; and the person for whose immediate benefit the suit is prosecuted or defended is not included in the description.

Hence, the chapter entitled “ Examination of Parties,” (§§ 389, 395,) after providing for the examination of “ a party to an action,” the means of compelling it, and the penalties of refusing, declares that a person for. whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner and subject to the same rules of examination as if he were named a party.”

This provision demonstrates that, in the intent and meaning of the legislature, only those named on the record as plaintiffs or defendants, whether suing or sued in their own right or in a representative capacity, whether having an actual interest in the result or not, are parties to the action, and' sections 389 and 395 are as applicable to one party as another. Whatever rights one party has under these sections, every other party has; and whatever any one may be required to do, in the matter of submitting to an examination, every other one may be required to do.

There are no provisions authorizing a discrimination in this regard between parties; none are exempted from a liability to be examined as such.

De Figaniere is .the only party defendant in this action. He is a nominal party, and is so named in the statute by force .of which he is sued. (2 R. S. 5th ed. 777, § 124.)

He is as much a party as an executor, or any other party named in section' 375 of the Code.- They have no actual inter-; est in the result, and their property can not be touched on a judgment.against them, not even for the costs of the.action, unless charged with them personally for mismanagement or bad faith. (§ 317.) This defendant is described in that section by the words, “ a person expressly authorized by statute” to prosecute or defend an action.

The joint stock company is not a party to the action : it is not a legal entity, and as such can neither sue nor be sued. The individual associates, as such, are not parties. The action is defended for the immediate benefit of the joint stock company, but that is not a party, and can not' be made one. It has no capacity to sue or be sued, as such, and therefore can not appear on the record as a party.

De Figaniere is the nominal party defendant, and the only person named as a party defendant; and to claim immunity from the statute compelling a party to submit to bé examined, he must show that some parties, when nominal parties only, are exempt, and that he comes within the class of exempt parties.

This has not been shown. On the contrary, the . Code includes all parties to the action, whether nominal or the actual parties in interest; and he is, therefore, liable to be examined the same as any other party.

2. The cause being, in fact, at issue, the notice to the defendant to appear and be examined was regular, and the giving of it entitled the plaintiff to the summons. Ho affidavit was requisite to authorize a judge to issue the summons. (Code, § 392. 3 B. 8. 5th ed. 684, §§ 58, 59.)

3. It does appear that the original summons was shown to the defendant.

4. It also appears that the defendant was paid, and accepted fifty cents as his fees, and that he was served in Hew York city. And it further appears by- the affidavit of Mr. Porter, that he, in behalf of the defendant, attended before the judge, and stated as the reason why the defendant did not appear and submit to an examination, that De Figaniere was not a defendant nor a party, but that the association was the party defendant, and not said De Figaniere. Consequently, the defendant did not appear, and that deponent made this statement to the court, that the court might see no disrespect was intended to the court.”

Under such circumstances, the fact that possibly Be Figaniere was entitled to mileage, can not be made available unless it affirmatively appears that he was ; and even then, it is doubtful whether he did not waive it.

The fact that the. order does not declare that it was adjudged that the alleged misconduct was calculated to, and did impair, defeat, impede, and prejudice the rights or remedies of the plaintiff, is immaterial in this case.

By the Code, (§ 394,) “ if a party refuse to attend and -testify, . . . he may be punished as. for a contempt, . . . and his answer be stricken out.” The order states that it was found as a fact, that he did not appear to testify, &c.

The statute under which the decisions in 9 Paige, 372, and 1 Duer, 512, were made, renders it indispensable to a valid conviction, that it be found that the misconduct “ was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of” the party complaining of such misconduct. (3 R. S. 5th ed. 849, § 1 ; 852, § 20.)

In a proceeding under section 394 of the Code, it can not be necessary that the order of conviction should require the finding of more facts than under that section need be established to justify the imposition of the fine," or the striking out of the defendants’s answer.

The order appealed from should be affirmed.


author: By the Court, Bosworth, Ch. J. Robertson, J.

text:
    Lewis S. Levy, plaintiff and respondent, vs. Anastasius Nicholas, who was impleaded with Thomas Stacy et al. defendant and appellant.
    Special bail fixed as such can not, in an action against them, as such, show either in bar of the action, or in mitigation of damages, that they were, before the recovery of judgment against their principal, and at all times since, have been utterly insolvent, and had no property whatever that could, or was liable to be applied towards the payment of such judgment.
    (Before Bosworth, Ch. J., and Robertson and Barbour, JJ.)
    Heard December 27, 1862;
    decided April 6, 1863.
    This was an appeal from an order sustaining a demurrer to part of an answer, and directing judgment for the plaintiff • thereupon.
    The action was brought upon an undertaking of bail, given by the defendants, Thomas Stacy and Anastasius Nichols, upon the arrest of one Edwin B. L’Amoureux, upon an order of arrest granted in a civil action against him under the Code of Procedure. , ,
    The undertaking was in the usual form,
    The complaint alleged, besides the arrest and execution of the undertaking, in the sum of $2000, that the plaintiff recovered judgment in the former action against L’Amoureux, and after execution against property issued and returned unsatisfied, had issued execution against the person, which was returned “Not found 5” and that the condition of the undertaking had been broken. Judgment was therefore demanded for the sum of $1300.08, the amount of the judgment against L’Amoureux.

      . The defendant, ¡Nicholas, answered, denying various allegations of the complaint, and set up either as a second and distinct defense as to the claim of the plaintiff in this action, or as to the principal or some part thereof, or in mitigation of the damages (if any) to be recovered in this action, that before and at the time of the recovery of the judgment specified in the complaint, and also before and at the respective times of the issuing and return of the two executions specified in the complaint, and of each of them respectively, R. L’Amoureux was, and ever since has been, and still is, utterly insolvent, and had no property whatever that could, or ought to be, or was liable to be applied to, or towards the payment or satisfaction of such judgment or any part thereof.
    To this second defense in the answer the plaintiff demurred. The demurrer was argued at special term, in October, 1862, before Mr. Justice- Babboub, by whom it was sustained. And judgment was thereupon given for the plaintiff.
    The defendant now appealed.

      S. Whitehorne, for the defendant, appellant.

      S. B. H. Judah, for the plaintiff, respondent,
    cited Petersdorff on Bail, 351; Code, §§187,291; 2 Chit. Pl. 177; 1 id. 104, 105; Gilbert on Debt, 395 ; McCreery v. Willett, (23 How. Pr. 129 ;) Renick v. Orser, (4 Bosw. 384;) 2 R. S. 3d ed. 479, §§ 34-36.
   By the Court, Bosworth, Ch. J.

The only question presented by this appeal is whether special bail who have become fixed can, in an action against them as such bail, show either in bar of the action, or in mitigation of' damages, that before the recoveiy of judgment against their principal, he was, and at all times since, has been utterly insolvent, and had no property whatever that could,. or was liable to be applied towards the payment of such judgment.

That fact is not one of those which the Revised Statutes (2 R. S. 383, §§ 33, 34,) provides may be placed or presented as a ground for relieving bail.

■ Oil .a breach of the bail bond given on the arrest of a" defendaht, conditioned for his appearance, and putting in bail, such bail, are liable for the aniount of the debt or demand against the principal; the costs of the original suit and of the • suit, on the bond (to the extent of the penalty of such bond.) (2 R. S. 349, §§ 11, 12. Id. 358, § 12.) And special bail who" have .¡become fixed, and are liable as such,, can only be relieved by- paying the judgment against their principal, (that not being larger than the sum in which they undertook as bail,) and the costs of the action against themselves. (Graham’s Pr. pp. 426, 427. Blaney v. Holt, and Same v. Hardell, 3 Nev. .& Mann. 529. See Stever v. Sornberger, 24 Wend. 275; Gregory v. Levy, 12 Barb. 610; Code, §§ 199, [174,] and 200, [175.]

. Such .was . clearly the "measure of the liability of special bail; .and" the character and extent of the relief to which a plaintiff, on such a State of facts, was entitled before the Code.

Section 468 of the Code, declares- that all rights of action given or secured by existing laws may .be prosecuted in the manner provided by this act.” "

Rights given or liabilities created and defined by existing laws,, are not modified, impaired or diminished by - the general provisions" of the. Code prescribing the procedure to .be conformed to in civil actions.

The order should be affirmed.

Robertson, J.

The- undertaking of the defendants was that the -debtor in, the former suit" (L’Amoureux,) should at all times render himself amenable to the process- of the court, during the. pendency of the action, and to such as might- be issued to -enforce the judgment therein. They have at all times authority, to produce the person of the debtor in then-exoneration, and, the plaintiff in such action was entitled to insist on the production of the body or payment of the debt. They were,not public officers, upon whom the execution of process may, devolve even against his will, but volunteers, such as are most usually friends of the party arrested. The order of arrest would be of little avail to procure the payment of a debt, if the sureties for his appearance could refrain from producing his body, and speculate on their ability to prove his insolvency, when the most important witness, himself, might be absent. Eor an accidental inability to produce the body of the debtor at the time, the court may furnish relief. (Barker v. Russell, 11 Barb. 303.) But if negligent or indifferent in attempting to produce it, the law implies either indemnity or fraud, and makes the sureties liable. Bail may also be substituted for the actual deposit of the amount for which the defendant is ordered to give bail, which amount would, if given, be applied immediately to satisfying the judgment. (Code, §§ 199,200.) The change of security ought not to alter the plaintiff’s rights. Besides this, the plaintiff is bound to test the solvency of the debtor, by executions against his property, and the facility of procuring his person as a pledge by an execution against it, (2 B. S. 382, §§ 29, 30,) and any fraud or collusion in mere pretended efforts by such executions, to collect the amount due, deprives him of the right to proceed against the bail. (Id. 383, § 31.)

The Oode of Procedure reenacts the cases for exonerating bail, originally provided for in the Revised Statutes, as amended by a statute passed in 1845. (2 R. S. 382, § 22. Sess. L. of 1845, ch. 231, § 3. Code, § 191.) One of them is the legal discharge of the debtor, not from the debt, but from the obligation of rendering himself amenable to process, showing that the plaintiff was to have the money or the defendant’s body, if amenable to process as security for the debt. The same principle is laid down in elementary works.

I therefore concur in affirming the order appealed from.

Order affirmed, with costs.