text:
    ADAM EMMERICH, Appellant v. PETER HEFFERAN, et al., Respondents.

      Conveyance of real estate made with intent to defraud creditors— Insolvency, presumptions of, at time of conveyance.

    On December 29, 1882, defendant Peter Hefferan, being indebted to plaintiff in the sum exceeding $9,000, made a voluntary conveyance of real property to his wife, through his son as an intermediary agent, receiving from his wife after the conveyance, a general power of attorney giving him the absolute right of control.and disposition of said property and its proceeds. On December 25, 1882, the plaintiff made a demand upon Hefferan for the payment of the plaintiff’s claim, when he declared his intention not to pay the same, and immediately thereafter (Dec. 29th,) conveyed the property to his wife.
    In January 1883, plaintiff commenced an action in the Supreme Court against Hefferan, and, on May 18, 1883, Hefferan permitted an inquest to be taken against him for $9,847,18, upon which judgment was entered and execution issued thereon against Hefferan’s property, which was returned wholly unsatisfied. Held, that upon these facts, without explanation, that the conveyance from Hefferan to his wife had been made with intent to delay or defraud creditors. The plaintiff certainly had made out aprima facie case, which called for a judgment in his favor.
    The court, after reviewing the decisions as applicable to the facts in this ease, and suggesting that the precise question had not been passed upon by the courts of this state, held that the decisions cited should bo accepted so far as they place upon defendants the burden of showing the grantor to have been in a position to make the conveyance at the time of its execution and delivery. Held, that where a person is heavily indebted to another, and shortly after a demand for payment of the indebtedness had been made and refused, makes a voluntary transfer of real property worth $30,000 to his wife, from whom he receives a general power of attorney to sell and dispose of the property conveyed and its proceeds, and at the time the debtor had no other real property, and execution had issued and been returned unsatisfied within seven months after the making of the conveyance, upon a judgment of over $10,000, obtained on this debt in an action brought to set aside the conveyance as" fraudulent, the debtor is bound in justice and fairness to make explanation before he can claim a finding from the court that the conveyance was not made with the intent to delay or defraud creditors.
    Before Truax and Dugro, JJ.

      Decided May 5, 1890.

      Won G. Mo,Orea, for appellant.

      Townsend, Dyett & Einstein, for respondent Peter Hefferan.

      Henry E. Mooney, for respondents H. A. Hefferan and wife.

      Thomas Boese,.Guardian adlitem, for Mary E. Nesmith.
   By the Court.—Dugro, J.

The plaintiff sought to have a conveyance declared void as having been' made with intent to hinder, delay and defraud creditors. He appeals from the judgment in favor of defendants.

The facts are as follows:—On December 29, 1882, defendant Peter Hefferan, being'indebted to plaintiff in a sum exceeding $9,000, made a voluntary conveyance of real property worth $30,000 to his wife, through his son as intermediary, receiving from the grantee on the same day a general power of attorney.

In January following, the plaintiff commenced an action to recover the sum due him and obtained judgment therein August 2, 1883. A few days after the judgment was obtained, execution issued thereon was returned unsatisfied. About one month prior to the delivery of the conveyance, the defendant, Peter Hefferan, on being requested to pay plaintiffs claim, which arose by reason of the breach of a warranty contained in a deed delivered by him to the plaintiff some years prior to 1882, said, that he had paid Mr. Dyett for defending the suit (an action of ejectment against the plaintiff, resulting in his eviction) and was not going to pay any more.

An examination of the records in the Register’s office failed to disclose that the grantor owned at the time of the transfer any real property other than that conveyed. No explanation of the circumstances was given by the defendants, the case having been submitted'-on the plaintiff’s proof.

The learned trial judge found upon these facts, that the conveyance had not been made with intent to hinder, delay'or defraud creditors, and refused to find to the contrary, as requested by the plaintiff. This we think was error, for the plaintiff had made out a prima facie case which, unless satisfactorily explained by the defendants, called fora judgment in his favor.

It seems that the'grantor was insolvent in August, 1888, as then an execution issued upon the judgment was returned unsatisfied. This was but little over seven months after the time of the conveyance.

It has frequently been held that insolvency at the time of the rendition of a judgment raises a presumption of insolvency at the time of the gift (Bump on Fraudulent Conveyances, 3d ed., p. 283). This holding, while .in conflict with the ordinary rule that a presumption is not retroactive or retrospective, has much to commend it as applicable to actions to set' aside conveyances as fraudulent. In Carlisle v. Rich, 8 N. H. 44, the judgment was obtained several years after the delivery of the deed of conveyance. The court said: “The case finds that when judgment was obtained there were not sufficient funds to pay the claims recovered under the bond, and until the contrary appears such will be presumed to have been the case at the time of the conveyance. The insolvency must, therefore, be considered as extending back to the time of the grant.” The case is cited with approval in Strong v. Lawrence, 58 Iowa, 55.

The inference of fraud is inevitable in a case where a voluntary conveyance is made by an insolvent debt-, or (Coleman v. Burr, 93 N. Y. 17), and if the insolvency is presumed the same inevitable inference must be drawn.

In Crosby v. Elworthy, L. R. 12 Eq. 158, the debt- or made a voluntary settlement, and nine months thereafter laid a statement before his creditors showing liabilities in excess of assets .some $20,000. The court said “ Considering that he had made a settlement only nine months previously I think that state of things is sufficient to relieve those who desire to impeach the settlement from proving insolvency and to throw upon Mr. El worthy the burden of proving that he was in a position to make the settlement.”

In Townsend v. Westcott, 2 Beav. 340, there was no positive proof of insolvency at the date of the settlement, but the settler became insolvent three years afterwards. The court held that it was not necessary to prove actual insolvency, but that if insolvency took place shortly after the execution of the settlement, it was enough. The question presented has never, so far as an examination discloses, been passed upon by the courts of this state.

I am willing to accept the decisions above referred to so far as they warrant throwing upon defendants in a case such as this the burden of showing the grantor to have been in a position to make the conveyance complained of at the time of its delivery. It seems to me that where a person heavily indebted, shortly after' a demand for payment of the indebtedness and his declaration not to pay, makes a voluntary transfer of real property worth $30,000 to his wife, from whom he receives at the time a general power of attorney, and it appears that the debtor had at the time of the conveyance no title of record to any other real property in the county in which he resided, and execution issued upon a judgment of more than $10, 000 obtained for the debt is returned unsatisfied -within seven months after the making of the conveyance, defendants, none of whom are purchasers for a valuable consideration, in an action to set aside the conveyance as fraudulent, should be called upon in fairness and justness to make some explanation to the plaintiff before being entitled to a finding that the conveyance was not made to hinder, delay or defraud creditors.

On the former appeal in this court the point which has been deemed by us of vital importance does not appear to have been explicitly presented or relied upon by the appellant, and, therefore, we have not considered that decision as binding upon us.

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

Truax, J., concurred.


source: Caselaw Access Project

author: By the Court.—Truax, J.

license: Public Domain

text:
    FREDERICK MARX, et al., Appellants v. EUGENE A. GROSS, et al., Respondents.

      Amendment of answer, allowance of where the answer sets up a new defence.

    The court at special term has the power to allow an amended answer setting up a new defence in the action.
    In the case at bar the amended answer contained two defences. 1st. A denial of making the contract set forth in the complaint, and 2nd, That defendants were induced to make the contract by the false and fraudulent representations of the plaintiffs. Held, that these two defences are inconsistent with each other.
    Order amended by striking out the general denial, and affirmed as amended.
    Before Sedgwick, Oh. J., Truax and Dügro, JJ.

      Decided May 6, 1890.
    Appeal by plaintiffs from an order allowing defendants to serve an amended answer.

      ■George A. Black, for appellants.

      Foster & Thomson, attorneys, and W. Bourke Cochran of counsel, for respondents.
   By the Court.—Truax, J.

The principal question argued at the general term related to the power of the court at special term to allow an amendment setting up a new defence. We are of the opinion that the special term had the power to allow such an amendment. Smith v. Bodine 74 N. Y. 35 ; Hatch v. Central National Bank 78 lb. 487.

The action was brought to recover damages for a failure to deliver certain glycerine that plaintiffs had purchased from the defendants. The answer was in effect a denial of the making of the contract set forth in the complaint. The defendants asked to amend their- answer by setting up the defence that they were induced to make this contract by certain false and fraudulent representations of the plaintiffs. The defendants also sought to recover as a counterclaim certain damages sustained by them by reason' of such false and fraudulent representations. We are of the opinion that a good defence to the cause of action stated in the complaint and a good counterclaim were set forth in the amended answer. Itwas alleged in the complaint that the breach of the contract took place after the 12tli day of October, 1886. The allegation is in these words: “ since the said 12th day of October, 1886, the defendants have refused and neglected to deliver to the said plaintiffs any more of the-said crude glycerine.”

The amended answer sets, up the false and fraudulent representations made lay plaintiffs, and shows that defendants relied upon such representations and believed them to be true up to and on said 12th day of October. It then proceeds to state that subsequently to said 12th day of October, and on or about the 15th day of October, 1886, the defendants learned that said representations were false and fraudulent and then refused to deliver any more glycerine at the price agreed upon. This is in effect an allegation that the defendants elected to rescind the contract, and constitutes a good defence to the cause of action set forth in the complaint. The amen ded answer contains two defences ; it contains a denial of the making of the contract set forth in the complaint, and an allegation that the defendants were induced to make the contract by the false and fraudulent representations of the plaintiffs. These two defences are inconsistent, and the order should be amended by striking out the general denial; as amended it is affirmed without costs to either party.

Dttgko, J., concurred.


author: By the Couet.—Fbeedman, J.

text:
    OWEN SWEENEY, Respondent v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Appellant.

      Negligence, what constitutes negligence per se—Submission to jury.

    Assuming that the trial judge was right in his refusal to dismiss the complaint and in holding that the plaintiff was not guilty of contributory negligence and that the proximate cause of plaintiff’s injury was the breaking of the coupling link between the tender and the car next to it of defendant’s train, it does not follow that the breaking of the coupling link constituted negligence per se in the defendant. From the evidence, although uncontradicted, reasonable minds may draw different conclusions, and the question of defendant’s negligence was, therefore, one of fact to be determined by the jury, and it was error in law for the trial judge to withdraw it from the consideration of the jury and to hold that the defendant had been guilty of negligence as matter of law in not having provided a safe coupling link, and to instruct the jury that the only question to be determined by them was that of damages.
    Before Fbeedman and Text ax, JJ.

      Decided June 27, 1890.
    Appeal from judgment in favor of the plaintiff entered upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      Page & Taft, attorneys, and Henry W. Taft of counsel, for appellant.

      Thomas P. Wiclees, for respondent.
   By the Couet.—Fbeedman, J.

Assuming that the trial judge was right in refusing to dismiss the complaint and in holding that the plaintiff was not guilty of contributory negligence and that the proximate, cause of plaintiff’s injury was the breaking of the coupling link between the tender and the car next to it of defendant’s train, it does not follow that the breaking of the said coupling link constituted negligence per se in the defendant. From the evidence on this point, although uncontradicted, reasonable minds may draw different conclusions. In a certain aspect of the case, the jury might have reached the conclusion that a fellow servant of the plaintiff negligently used the said coupling link notwithstanding its insufficiency and defect were apparent on a bare inspection and although the defendant had provided quite a number of others- which were perfectly safe and sufficient and from which a selection should have been made by such fellow servant. The question of defendant’s negligence was, therefore, one of fact to be determined by the jury, and it was. error in law to withdraw it from the consideration of the jury and to hold that the defendant had been guilty of negligonce as matter of law in not having provided a safe and sufficient coupling link, and to instruct the jury that the only question to be determined by them was the question of damages.

As the error specified necessitates a new trial, it is not necessary to discuss the other questions in the case.

The judgment and order should be reversed and a new trial ordered with costs to appellant to abide the event.

Truax, J., concurred.


author: By the Court.—Freedman, J.

text:
    JACOB E. BLOOM, Respondent v. FRANCIS JARVIS PATTEN, et al., Appellants.

      Discovery of boolcs and papers—Examination of party 10 enable plaintiff to amend his complaint.

    The papers on which a motion is made for an order for an examination and discovery of books and papers to enable a party to make or amend a pleading must show the necessity of such an examination. When it appears that the object sought is to obtain information concerning an anticipated defence and other matters beyond the making of the pleading, the order should be denied.
    Before Freedman and Truax, JJ.

      Decided June, 27, 1890.
    Appeal from order for defendant’s examination.

      Semple & Cahill, for appellants.

      Jacob E. Bloom, in pro. pers. respondent.
   By the Court.—Freedman, J.

The on which the defendants were ordered to appear and submit to an examination before trial and to make a discovery of their books and papers, claimed that such examination and discovery .were necessary to enable the plaintiff to amend his complaint. The test therefore is whether a necessity was shown for the purpose stated. The proof fails to establish such a necessity. From all that appears by the affidavits on both sides it is evident that the plaintiff has sufficient knowledge of the facts constituting his alleged cause of action and that his object is to obtain' information concerning an anticipated defence and to find out whether the cause of action cannot be extended to other parties.

The order should be reversed with ten dollars costs and disbursements.

Truax, J., concurred.


author: By the Court.— Freedman, J.

text:
    EDWARD AVERY, Respondent v. THE NEW YORK MUTUAL INSURANCE COMPANY, Appellant.

      Marine insurance—Total loss—Sale of wreck by master after reaching a harbor— Circumstances of justification.

    In this case, abundant evidence was given to the effect that plaintiffs loss under the freight policy was a total one. There was also sufficient evidence that under the vessel policy the loss was total to the insured and also to the insurers (subject to salvage) if the sale by the master was justifiable, and consequently the main question in the case was in regard to the sale of the vessel by the master in the port of distress and as to whether it was justifiable. The vessel had met with a disaster on the high seas which practically left her a wreck, could not be navigated but was at the mercy of the winds and waves, but was finally brought in to a barbor, where there were no docks, wharves, materials or men to repair her, nor any facilities to place her in condition to go to sea. The master called upon the constituted authorities for advice and counsel, and after three successive surveys was advised that the vessel was not worth repairing and should be sold. That such advice corresponded with the judgment of the master and he sold the vessel. Such sale took place under the direction of the consul. Held, that the question was one for the jury and could not be withdrawn from their consideration. That a sale by the master is justified or not, as to the underwriters, according to the apparent circumstances and facts existing at the time and place and the statements and advice of competent persons first sought and obtained. The jury having found that, under all the circumstances, the sale of the vessel was justifiable, no notice of abandonment was necessary.
    Before Freedman and Truax, JJ.

      Decided June, 27, 1890.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury and from order denying defendant’s motion for a new trial.

      John Berry, attorney and of counsel, for appellant, argued:—
    Philips, in his standard treatise on insurance says, section 1491: An abandonment is requisite in order to recover the whole amount insured by a policy in case of a technical or constructive total loss. § 1497. The decisions against the recovery of a total loss without abandonment when the subject remains in specie and has been sold, are upon the grounds that the underwriters have not had notice by an abandonment before the sale was made so as to give them an opportunity to examine the circumstances, and the Objection is confined to cases where some delay may be made without risk of destruction of the subject and the distance is not too great for communication. § 1526. In case of shipwreck or stranding without severe injury to the ship, or. to prevent it from being got afloat and repaired within a reasonable time, at a reasonable expense, the assured has no right to abandon. § 1528. The question is, whether the ship can, at a reasonable expense, and within a reasonable time, be impaired where she is, or taken to a suitable port and repaired, so as to be fully restored. § 1565. It is the duty of the master before hypothecating the ship or breaking up the voyage and selling the ship for want of the means to proceed to communicate with the owners, if the distance and other circumstances admit of so doing. § 1570. The master derives his authority to make any sale wholly from the necessity for such proceedings, and if there is no necessity there is no such authority. § 1571. The character of the loss as being total, does not result from the sale, but from the circumstances rendering the sale necessary, and if those circumstances do not constitute a total loss, a sale by the master will not make it such. § 1578. Where the master can communicate with the owners, if he neglects to do so, his sale may be repudiated by them, and accordingly in respect to the underwriters the loss will be adjusted in the same manner as if there had been no proceeding purporting to be a sale. § 1579. The exercise of the authority, etc., conferred by extraordinary emergencies on the master, to act as agent for all parties concerned, is regarded with jealousy and watchfulness by the courts, and the necessity of the sale must-be clearly made out, and it must appear that no other course could be reasonably taken. Abbott on Shipping, Amer. Ed. p. 11, treating of what justifies a master to sell a vessel, refers to the case of the ship Fannie and Elmira, reported in Edw. Ad. Rep. This vessel having been damaged upon rocks in Sligo Bay, the master caused her to be surveyed by competent persons, who reported that it would require £1,500 to repair her, a sum exceeding her value, and that it would be for the interest of all concerned to have her sold. She was sold for £350, was repaired at .an expense of £800. The court said: “ In the first place it must be shown that there was a necessity, and then it remains to be considered whether it was such as by law would give the master a right to sell.” Abbott also refers to the case of the ship Lucy Banks, where the master sold the vessel. The jury found that the master acted on good faith and according to his best judgment; that the sale was conducted, fairly and honestly, but there was no necessity for the sale of the ship, and the insured recovered for a partial loss only, and not for a total loss, as was claimed. Also the case of the Royal Ins. Co. v. Odle, in the Court of King’s Bench. The ‘vessel, having met with disaster in the St. Lawrence River, was run on shore to save her from sinking. The master caused two surveys to be made by competent persons, whose report was that it was prudent, and, for the benefit of all concerned, to sell her as soon as possible', which was done at public auction. The ship was impaired and carried a cargo to England. The jury found that the master had acted thoroughout fairly and bona fide for the benefit of all concerned, and that the sale was honestly and fairly-conducted, with a view to the interest.of all parties concerned. The court held that necessity for a sale, did not appear, and awarded a new trial; In New England Ins. Co. v. Sarah Ann, 13 Pet. 387, the court said that the master of a stranded vessel, which in his opinion cannot be got off, should, if practicable, notify the owners before making the sale. In order to justify the sale by the master of his vessel in a distant port in the course of her voyage, good faith in making the sale, and the necessity therefor must both concur, and the purchaser, in order to have a valid title must show their concurrence. The question is not whether it was better to break up a voyage and sell the ship, but whether there was a legal necessity to do it. The Amelie, 6 Wall. 18; The Henry, Blatch. and How., 465; The Lucinda Snow, Abb. Adm. 305; The William Carey, 3 Ware, 313. Chancellor Kent, in his Commentaries, Vol. 3, page 173, says: “ Bub if the voyage be broken up by ungovernable circumstances, the master in that case may even sell the ship and cargo, provided it be done in good faith, for the good of all concerned, and in a case of supreme necessity, which sweeps all ordinary rules "before it.” In-. East India Company,7 E. L. C. 339, Bayley, J., says: —“It must be of absolute necessity.” Park, J., in Skeen v. McGregor, 8 E. L. C. 309, says : “A sale can-only be made in case of inevitable necessity.” There is no doubt but that, in order to justify the sale of a cargo at an intermediate port, several things must concur: 1. There must be a necessity for it arising, either from the nature or condition of the property, or from the inability to complete the voyage by the same ship or to procure another. 2d. The captain must have acted in good faith. 3d. He must if practicable, consult with the owner before selling. Abbott on Shipping, 447 and notes; New England Insurance Company v. Brig Sarah, 13 Pet: 387; Bryant v. Commonwealth Ins. Company, 13 Pick. 543. The master is not required to sell the ship or cargo except in case of absolute necessity, where he is not in a situation to consult with his owner, and where the destruction of the property makes it necessary for him to act as the agent of whom it may concern American Ins. Co. v. Center, 4 Wend. 45. In Butler v. Murray, 30 N. Y. 88, Mullen, J., says: “The master of a vessel is for the most purposes the agent of the owners of the ship and cargo, but that agency does not extend to a sale of either, unless there is a necessity at the time for so doing. Abbott on Shipping, 365 and notes. In 2 Smith's Leading Cases, 574, the author of the notes says : “In order to make out a case for a sale without express authority it would appear necessary to show that the property at risk has been placed in a position of such" imminent danger that it may be destroyed or materially injured before recourse can be had to those to whom it belongs unless the intervention of other means is resorted to than those which can be commanded by the master.”
    The general rule as to what constitutes the total loss of a ship is stated by Sewall. J., in Murray v. Hatch, 6 Mass. 465. If the ship is ’afloat, or it is practicable to put her afloat, and if she is capable of being repaired, at any expense, it is not a total loss within the meaning and intent of the policy. In Brindley v. Maryland Ins. Co., 12 Pet. Rep. 378, the court held : The mere retardation of a voyage by any of the perils insured against, not amounting to or producing a total incapacity of the ship eventually to perform the voyage, cannot be admitted to constitute a technical total loss which will-authorize an abandonment. A retardation for the purpose of repairing damage from the perils insured against, that damage not exceeding one moiety of the value of the ship, falls directly within this doctrine. Under such circumstances, if the ship can be repaired and is repaired, and is thus capable of performing the voyage, there is no ground of abandonment founded upon the consideration that the voyage may not be worth pursuing for the interest of the shipowner ; or that the cargo has been injured, so that it is not worth transporting further on the voyage ; for the loss of the cargo for the voyage has nothing to do with the insurance upon the ship for the voyage. Supreme Ct. 1888, Brindley v. Maryland Ins. Co., 12 Pet, 378. In Maryland Ins. v. Ruden, 6 Cranch, 338, it was held that an abandonment to be effectual must be made within a reasonable time. In Dimsan v. Koch,
      Wall. C. Ct., 33, it was held that the 'insured must elect to abandon or not, and notify the owners of abandonment, within a reasonable time after he receives notice of the loss. McConochie v. Sun Mut. Ins. Co., 26 N. Y. 471 was an appeal from a judgment in favor of the plaintiff on demurrer to complaint and here reversed. The action was for a constructive total loss of cargo under abandonment, the vessel having put into port in distress. The court said: “A valid abandonment cannot be made unless there be sufficient cause for it, that is to say; the ship or goods must have been actually damaged to more than one-half the value, and the notice of abandonment to the insurance company or underwriters must state the true cause thereof. They must be informed of the grounds, of abandonment so they may determine whether to accept,” citing. 2 Phill. on Ins., § 1684, and the language of Livingstone, J.. in Suydam v. Marine Ins. Co., 1 Johns. 190. “ Though no form be prescribed by this act of (notice of abandonment), yet care should be taken that it be unconditional, explicit and on sufficient ground, and particularly that the accident occasioning it be described with certainty, so as to enable an underwriter to determine whether he is bound to accept.” Washington, J., in King v. Del. Ins. Co., 2 Wash. C. C. R. 309, held that it is incumbent on the insured to state to the underwriter a sufficient reason for the offer to abandon, so that the latter will have an opportunity of judging whether he is bound to accept the offer or not. In Bulland v. Roger Williams Ins. Co., 1 Cirt., 148, it was held that in order to recover as for a total loss there must be in fact what is equivalent to a total loss or a sufficient abandonment must be reasonably tendered to the underwriters. In Cort v. Del. Ins. Co., 2 Wash. 375, it was held that where a vessel is damaged and it is not proved that it was impossible to repair her at an expense exceeding her value, the master has no right to break, up the voyage and convert a partial into a total loss. To the same effect, Jordan v. Warren Ins. Co., 1 Story, 342, In Oliverd v. Union Ins. Co., 3 Wheat. 183, it -was held that a technical total loss must continue to the time of abandonment. In Ruckman v. Merchants’, &c., Ins. Co., 5 Duer, 361, the court says : “We consider the law to be jui?t,as clearly settled, that it is quite immaterial whether the impracticability of making repairs when the vessel is in a port of distress proceeds from the want of materials and workmen, or of the necessary funds or credit. It is the existence of the fact and the necessity of breaking up the voyage which it creates that justify an abandonment. The true and sole inquiry is, what is the measure of the diligence that for the purpose of repairing the vessel, when repairs are necessary, the master is bound to exercise ? It is only when all means have been resorted to with proper diligence and have proved ineffectual that he is justified in breaking up the voyage, or his owner; if insured, has any title to abandon. It by no means follows that the diligence and vigilance of the master in procuring the means of repair are in all cases to be limited to the port in which the disabled vessel has found a refuge. Although neither the proper materials nor workmen are there to be found, or the requisite funds there to be procured, it is by no means a necessary consequence that he may at once abandon the voyage and sacrifice, by an immediate sale, the property entrusted to his charge. His obligation to repair the vessel, if repairable, at an expense of less than one half her value may still subsist, and his failure to perform the duty operate to discharge the underwriters from all liability beyond the payment of a partial loss. If, without any prejudicial delay or increase of expense beyond a moiety of the value, the want of materials or workmen could have been supplied from a neighboring port, or the necessary funds have been obtained by a communication with his owner or consignee, the conduct of the master in breaking up the voyage and selling the vessel and cargo it seems to us could never be justified and would furnish no ground for the recovery of a total loss. The breaking up of the voyage ought never to be sanctioned without it is certain that the shipowner, if insured, would have continued to prosecute it, nor consequently the abandonment of a vessel as unnavigable ever be sustained without it is certain that the owner, if insured, would have elected to repair. When the policy is valued, it may frequently happen that the breaking up of the voyage, if a total loss may be recovered, would be far more advantageous to the shipowner than its successful termination. It is plain that in these cases there is a direct temptation to dishonesty and fraud, nor can it be doubted that this is a temptation which it is the duty of a court of justice as far as possible to remove. So long as the valuation in the policy is held to be conclusive it cannot be wholly removed, but its force can be lessened by confining the power of abandonment within those limits which the nature and objects of the contract, the intention of the parties and the dictates of reason and policy evidently prescribe. The true principle upon which the whole doctrine of abandonment may be said to rest and by which qlone its application in converting a partial into a total loss can be sustained, is that in which the leading case of Anderson v. Wallace (2 M. & Sel., 240) is stated by Lord Ellenboroegh to be that, an abandonment is never to be authorized except when at the time the loss was actually total or in the highest degree probable.” In the case of The Henry, 1 Blatch. and How. 465, U. S. District Court, Judge Betts says: The master of a vessel, has complete authority in everything relating to the management and conduct of his vessel, but it is apparent that no general authority from his owners to sell her can be implied. The master’s agency to sell arising by operation of law and being exercised by him vertvti officii both necessity and good faith must concur to render the sale by him valid (citing various authorities). Neither necessity nor good faith is alone sufficient to make valid a sale by the master which is offered as a bar to the title of the previous owned, both must concur and be affirmatively shown by the party setting up the sale, and the courts will not infer the existence of either of these requisites from the most ample proof of the other. There must be clear proof that the necessity of a sale is actual and not merely apprehended, or one which, upon the balancing of chances may turn out to be absolute and real or only threatening or imaginary. I am persuaded that principle and authority are opposed to any further relaxation of the rule and that the same necessity and good faith which are required when the question arises between the owner and the master or purchaser must exist to give validity to the sale as between the underwriter and the insured. So far as the case of Center v. Am. Ins. Co. 7 Cow. 582, and 4 Wend. 45, indicates a different principle, it may be considered as controlled by the decision in Patapsco Ins. Co. v. Southgate, 5 Pet. 621. The judgment and determination of the master himself, no matter how careful his consideration of the circumstances of the case may have been, is manifestly not conclusive upon the subject his decision is subject to review in the home tribunal, and he or the party who claims under his acts must sustain that decision. Nor is the opinion of by-standers, however intelligent or disinterested and unanimous they may be adequate proof of the accuracy of the decision. The law adheres to the ordinary rules of evidence in this matter, and requires proof of the facts and circumstances themselves, in view of which the master decided, in order to a determination whether the decision was correct. It will then devolve upon the party who upholds the proceedings of the master to prove the circumstances necessary to confer the power and of the faithful execution of the power so created. All that was determined in McCall v. Sun Mutual Insurance Company, 66 N. Y. 505, was that where a vessel is injured by sea peril, and for that reason is justifiably sold by the master, the loss is a total one and no abandonment is necessary. Under the circumstances of that case it was held that the sale was justifiable. Also held that “ the sale when justifiably made is not the cause of the loss, but the sea peril which made the sale necessary.”

      John A. Mapes, attorney and of counsel, for respondent, argued :—■
    I. Under the vessel policy the loss was total to the insured, and" was also total as to the insurers (sub-.ject to salvage) if the sale by the master was justifiable. Manning v. Newnham Trinity Term, 22 Geo. 3, Cited in Park on Ins., 168 ; McCall v. Sun Mutual Ins. Co., 66 N. Y. 505 ; 2 Arnauld on Mar. Ins. §§ 365, 366 ; Robertson v. Clarke, 1 Bing., 445 ; Cambridge v. Anderson, 2 Barn. & Cres., 691 ; Farnsworth v. Hyde, 18 C. B, N.S., 858. If it is impracticable to. repair the ship it is an actual total loss, although: considerable salvage may remain. 2 Phil on Ins., §¡ 1519. If it appeared at the time that the ship could, not be recovered or repaired, it is an actus 1 total loss. The question is not to be judged by events, for vessels have been recovered though there was no reasonable hope at the time. 2 Phil on Ins., § 1577 : 2 Parsons on Mar. Ins., p. 85, etc. “ The loss is in-its nature total to him who has no means of recovering his property, whether his inability arises from its annihilation or from any other insuperable obstacle.” Roux v. Salvador, 3 Bing. N. C. 279 ; Crosby v. N. Y. Mutual Ins Co., 5 Bosw. 377 ; Wallenstein v. Columbian, Ins. Co., 44 N. Y. 217. The fact that the vessel is finally saved by the efforts of speculating strangers does not change the total loss to a partial one. She is not saved to the owner. Robertson v. Caruthers, 2 Stark. 571 ; Roux v. Salvador, supra; Poole v. Protection Ins. Co., 14 Conn. 54 ; Peele v. Mchts. Ins. Co., 3 Mason, 40. Where the master has, in good faith, believing the vessel to be past saving, abandoned and sold her, the fact that it afterwards turns out that she might have been saved, is not conclusive against the right of the insured to recover as for a total loss. Robertson v. Caruthers, supra ; Moss v. Smith, 9 C. B., 102. “ If after encountering a sea peril from which it sustained injuries, it is for that reason justifiably sold by the master, the loss then, as between the insured and the insurer, becomes a total one. The title is by such a sale irrevocably gone from the' owner, and cannot by abandonment be transferred to the insurer. The insurer may, under such circumstances, claim a total loss, accounting to the insurer for the proceeds of the sale, as salvage received for his benefit.” The sale when justifiably made is not the cause of the loss, but the sea peril which made the sale necessary.” McCall v. Sun Mutual Ins. Co. 66 N. Y., 505. In the above case the purchaser got the ship off and repaired her. The title having passed by a sale made necessary by the perils, the perils are deemed the proximate cause of the loss which is total. 2 Arnauld on Mar Ins., § 366, p. 1006 marg. Ruckman v. Merchants Ins. Co., 5 Duer, 367.
    II. The sale of the vessel was justifiable under the circumstances of the case. She had met with a disaster which left her a wreck. She could not be * •navigated, but was at the mercy of the winds and waves, and could only go where she was driven by them. She had brought up at an harbor where there were no docks, wharves, materials, or men to repair her, nor facilities of any kind to put her in condition to go to sea, She was in a hot climate in the worst season of the year, the copper stripped from her sides, leaving her subject to the ravages of the worms which invest those waters, with no materials to cover and protect her from the weather or the worms. Every day made her condition worse, and delay in action would imperil the interests of all concerned. Under these circumstances, the master pursued the course which was the most natural: he called upon theconstituted authorities to advise him what to do, Three successive surveys made under the appointment of the consul decided respectively: 1. What was necessary to be done to put the bark in condition to go to sea. 2. That she could not be so repaired in that place ; and, 3, That she was not in condition to go to any other place to be repaired, and had better be sold. This advice corresponding with his own judgment, the master accepted it, and-the sale took place under the direction of the consul. The master used his best judgment under all the circumstances, and the result of the effort after-wards made by the buyer to make something out of the hulk by sending her to Boston to be repaired clearly showed that the master was right; that the bark was not worth repairing, and that while necessarily lying at Gronaives, she had been so far damaged by the weather and the worms as to be of no value. A sale by the master is justified or not, as to the underwriters, according to the apparent circumstances at the time, the statements and advice of competent persons first obtained and not according to the result of an experiment by the purchaser, but such experiment may show conclusively that the sale was'a necessity. 2 Phillips on Ins., §1577 ; 2
      Parsons on Mar. Ins., p, 85, etc ; Brig Sarah Ann, 2 Sumn., 215 ; Fuller v. Kennebeck Ins. Co., 31 Me. 327 ; Prince v. Ocean Ins Co, 40 lb. 488 ; Fitz. v. The Amelia, 2 Cliff. 442 ; The Amelia, 6 Wall. 26. In this connection a survey is entitled to great weight. 2 Phil. on Ins. § 2096. Also testimony of experts to show the impracticability of repairs. Walker v. Protection Ins. Co., 29 Me. 320 ; Butler v. Murray, 30 N. Y. 101 ; Gordon v. Mass. Ins. Co., 2 Pick. 263. The necessity required is merely a high degree of expediency, taking into view the rights of all the parties interested, Butler v. Murray, 30 N. Y. 88 ; The Amelia, supra. In determining this necessity the rule is that the master should act as a prudent owner would have done at the time. Ruckman v. Mchts. Ins. Co., 5 Duer. 363. If his best discretion is prudently exercised, the act is justified, though events proved that he judged erroneously. Fontaine v. Phœnix Ins. Co., 11 John. 293 ; Idle v. Royal As. Soc., 8 Taunt. 770; Read v. Boatham, 3 Brod. & Bing. 147 ; Gordon v. Ins. Co., 2 Pick. 261 ; Patapsco v. Southgate, 5 Peters, 620 ; N. E. Ins. Co. v. Sarah Ann, 13 lb. 400; Post v. Jones, 19 How. U. S. 157. Where a master has, in good faith, believing his vessel to be past saving, abandoned and sold her, the fact that it afterwards turns out that she might have been saved is not conclusive against the right of the insured to recover as for a total loss. “ The question is not whether by possibility if a different conduct had been pursued by the master, the ship might not eventually have been saved, but whether exercising the best discretion he could in the matter he was not justified in abandoning the ship without entering into a nice and minute calculation. ” Abbott, Lord Ch. J., Robertson v. Caruthers, 2 Stark, 571. In the above case the master had sold the ship and she was afterwards got off. See also Roux v. Salvador, 3 Bing. N. C. 279 ; Brig Sarah Ann, 2 Sumn.
      215 ; Peele v. Mchts. Ins. Co., 3 Mason, 46. In Moss v. Smith, 9 C. B. 102, the court says : “It may be that the injury sustained by the ship is irreparable with reference to the place where she is. For instance, the ship may have met with a disaster at a place where no workmen of requisite powers are to be met with, or where the necessary materials are not to be found, so that to repair her is altogether impracticable, and in such a case the loss would be a total loss. In matters of business a thing .is said to be impossible when it is not practicable. If a ship sustains such extensive damage that it would not be reasonably practicable to repair her, the ship is said to be totally lost. Where the repairs are impossible from place or other circumstances and the ship is not at a port of destination, the master may sell the ship from necessity.” 2 Parsons on Contracts, p. 385, marg. ; Also 2 Phil: on Ins. § 1537. In Butler v, Murray, 30 N. Y. 88, a sale was made by the master without abandonment; the vessel was afterwards repaired and saved by the purchaser. The court says, p, 91 : “ The master may sell the property entrusted to him in case of extreme necessity, and in the exercise of a sound discretion. Nor need this necessity be actual in order to justify the master and make the sale valid. If the ship was in peril which as estimated from all the facts within his means of knowledge was imminent, and made it the most prudent course to sell the ship as she was, without further endeavors to get her out of her dangerous position, this is enough, and the sale is justified and valid, although the purchasers succeed in saving her, and events prove that this might been done by the master.” So also in Gordon v. Mass. Fire & Mar. Ins, Co., 2 Pick. 264. “When a vessel has been so far injured by a peril of the sea as to make a survey necessary, and the master with perfect good faith calls such a survey, and the persons appointed to take it are competent in point of skill, and disinterested, and they, after a full and sufficient examination, find her essentially injured and come to a fair conclusion that from the high price of materials and of labor, or the difficulty of procuring them the expense of repairing will be more than the worth of the vessel after she is repaired, and therefore they advise for the interest of all concerned that the vessel be sold, it seems to me that a moral necessity is imposed on the captain to act according to their advice.”
    III. The fact that the master was acting under the advice of competent surveyors regularly appointed is a very important element in determining the necessity for a sale. In Hathaway v. Sun Mutual Ins. Co., 8 Bos., at pages 68, and 69, the court says : “ A survey by competent surveyors, containing a clear statement of the injuries and a strong recommendation to sell, will be an important element in the proofs in determining the character of the emergency, and especially the good faith of the master.” In Potter v. Ocean Ins. Co., 3 Sumn. p. 43, the court says: “Indeed, the course is so universally adopted in practice that a master who should venture to deviate from it would be treated as guilty of some improvidence, if not of gross rashness and neglect of duty.” In Fontaine v. Phenix Ins. Co., 11 John. 295, Ch. J. Kent charged that as the surveyors had certified the vessel ought to be sold, the certificate, if made bona ficle, was strong evidence. This was sustained on appeal. In Gordon v. Mass. Fire & Mar. Ins. Co., 2 Pick. 264, it was held that when a survey is made and advice to sell given, there seems to be a moral necessity laid upon the master to act according to their advice. This was cited and approved in Butler v. Murray, 30 N. Y. 100, 101. It is very evident from the evidence given in this case as to the expense of getting the vessel to Boston, and her condition when she arrived there, and of the enormous expense which the speculator who bought her was put to, that the surveyors were right in their conclusion, and the master’s judgment, based in part upon the surveys and in part upon his own experience, was good. As he expected, the effects of the climate, of her exposure to the ravages of worms, and of her crippled condition, had converted a once good ship into a useless wreck.
    IY. The sale of the vessel being justifiable, and the loss thereby being deemed in law a total one, on notice of abandonment was necessary. 2. Arnauld on Ins., §§ 365, 366 ; Idle v. Royal Exchg. 8 Taunt. 755 ; Robertson v. Clarke, 1 Bing. 445 ; Robertson y. Caruthers, 2 Stark, 571 ; Cambridge v. Anderson, Ry. & Mood. 60 ; Roux v. Salvador, 3 Bing. N. C. 288 ; Winn v. Columbian Ins. Co., 12 Pick. 280 ; Amer. Ins. Co. v. Center, 4 Wend. 52 ; Williams v. Suffolk Ins. Co. 3 Sumn. 514; Patapsco Ins. Co. v. Southgate, 5 Peters, 604; Poole v. Protection Ins. Co., 14 Conn. 54 ; McCall v. Sun Mut. Ins Co., 66 N. Y. 505 ; Butler v. Murray, 30 lb. 88.
   By the Court.— Freedman, J.

This action was brought upon two policies of marine insurance, one on the vessel Anna L. Taylor, and the other on her freight. Both policies were valued. They were issued while the vessel was at sea and they covered a voyage from Barbadoes to Turk’s Island and thence to Baltimore. The action proceeded upon an alleged total loss subject, however, to salvage on the vessel policy. The question of total loss was fully and fairly submitted to the jury under a charge which carefully guarded all the rights of the defendant. There was no error in the charge or in the refusals to charge otherwise, if the case was one for the jury, nor can I discover any error constituting ground for reversal in the admission 'of testimony. The real question therefore is whether the defendant was or was not entitled to a dismissal of the complaint as matter of law. Upon an examination of the whole case it appears that abundant evidence was given to the effect that plaintiff s loss under the freight policy was a total one. There was also sufficient evidence that under the vessel policy the loss was total to the insured, and was also total as to the insurers (subject to salvage), if the sale by the master in the port of distress, viz : Gonaives on the island of St. Domingo, was justifiable. Upon that point the facts were quite complicated, but inasmuch as the plaintiff clearly showed that the vessel had met with a disaster on the high seas which practically left her a wreck ; that thereafter she could not be navigated, but was a t the mercy of the winds and waves ; that she had brought up at an harbor where there were no docks, wharves, materials or men to repair her, nor facilities of any kind to put her in condition to go to sea ; that the master had called upon the constituted authorities to advise him what to do ; that, after three successive surveys, he had been advised that the vessel was not worth repairing and should be sold ; that such advice corresponded with the master’s own judgment ; and that the master had sold the vessel in pursuance of such advice and that the sale had taken place under the direction of the consul, the question was one for the jury and could not be withdrawn from their consideration. A sale by the master is justified or not, as to the underwriters, according to the apparent circumstances at the time and the statements and advice of competent persons first obtained, and not according to the result of an experiment by the purchaser at the sale. The jury having found, upon a consideration of all the circumstances shown by both parties, that the sale of the vessel was justifiable, no notice of abandonment was necessary.

The judgment and order should be affirmed with costs.

Truax, J., concurred.


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    JACOB T. BAMBERGER, et al., Respondents v. FIRE ASSOCIATION OF NEW YORK, Appellant. SAME, Respondents v. MUTUAL FIRE INSURANCE COMPANY, Appellant. SAME, Respondents v. ARMSTRONG FIRE INSURANCE COMPANY, Appellant.

      Fire insurance—Fraud set tip in answer—Reference, discretion of court in ordering the same.

    In each of these actions the defendants-appeilants, have set up in their answer a charge of fraud on the part of the insured, and for this reason the motion made by each defendant for a compulsory reference was properly denied. Although the character of the action is to be determined, yet in the exercise of its discretion the court will look at the papers submitted on both sides, and if it appears that a charge of serious fraud is involved in the issues the motion for a compulsory reference may well be denied even if the action is referable, and with the exercise of that discretion the court on appeal will not interfere.
    Before Freedman and Ingraham, JJ.

      Decided June 27, 1890.
    Appeal from order denying defendants’ motions for a reference.

      Stine & Caiman, attorneys, and Joseph H. Choate of counsel, for appellants.

      Hoadley, Lauterbach & Johnson, attorneys, and Edgar M. Johnson of counsel, for respondents, on the questions considered, argued :—
    Even were we to concede that the trial would not involve a long account or difficult questions of law within the meaning of the Code, still no reference should be granted, because of the questions of fraud put in issue by defendants’ answers. (1.) In the leading case of Levy v. Brooklyn Fire Ins. Co., 25 Wend. 688, it appears that : “An officer of the insurance company made an affidavit that the trial of the cause would require an examination of the plaintiffs inventory, as well in respect to the goods, the amount thereof, the value of the portions totally destroyed and of the portions partially destroyed, as in respect to the correctness of the account of the loss exhibited by the plaintiff, and thus that the trial would require the examination of a long account. In answer to which the plaintiff made an affidavit that he was informed by the officers of the insurance company that their defence was two-fold : 1. That he had fraudulently caused- the conflagration by which the property insured was injured; and 2. That in making up his statement of loss, he had fraudulently overestimated the amount of his loss, and thus had forfeited all claims upon the defendant, lie further stated, that although the property destroyed or injured consisted of a variety of articles, differing in quality and value, yet his whole claim was founded upon a single occurrence, to wit, the injury done by the fire ; that his counsel had offered, and he still was willing, to refer the cause to ascertain the true amount of his loss, provided the defendants would waive the defences of fraud in firing the premises and overestimating the loss, both of which charges he pronounced utterly false, and therefore claimed a trial by jury. The Circuit Judge referred the cause, notwithstanding the opposition of the plaintiff, who now moved to vacate the order of reference.” The opinion of Chief Justice Nelson is thus reported (p. 688) : “ The Chief Justice said, that without attempting to lay down any general rule as to the reference of actions on policies of insurance, he was of opinion that in a case involving such serious charges as were here brought against the plaintiff, a party was entitled to the benefit of a trial before a court and jury, and that therefore he would direct the order for reference to be vacated.” In McLean v. East River Ins. Co., 8 Bosworth, 700, it was held (syllabus) : “In an action on an insurance policy where the defence involves a charge of fraud on the part of the'insured, a compulsory reference of the issues cannot be ordered.” In Freeman v. Atlantic Mutual Ins. Co., 13 Abb. 124 (General Term, First Department), a similar decision was reached. In Batchelor v. Albany City Ins. Co., 1 Sweeny, 346, the two cases last cited are expressly approved by this court (p. 357), as deciding that the presence of an issue of fraud is an effectual bar to the granting of a motion for reference.
   By the Court.—Freedman, J.

These three actions have been brought to recover moneys due on account of three policies of insurance covering plaintiffs’ stock of merchandise at their store in Louisville, Ky. These policies form part of a total number of 144 policies upon the whole stock of said merchandise. In each of these actions the defendants have set up a charge of fraud on the part of the insured. For this reason the motion made by each defendant for a compulsory reference was properly denied. True, the character of the action is to be determined from the complaint. But, in exercising its discretion upon the question whether a reference shall or shall not be compelled, the court will look at the papers submitted by both sides, and if it should appear that a charge of serious fraud is involved in the issues, the motion may well be denied, even if the action be referable. With the exercise of that discretion the general term will not interfere. The views already expressed render it unnecessary to determine the question of power.

In each case the order appealed from should be affirmed, but there should be only one bill of costs.

Ingraham , J., concurred.


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    THEODORE C. WEEKS, Respondent v. THE SILVER ISLET CONSOLIDATED MINING AND LANDS COMPANY, et al., Appellants.

      Extra Allowance, should be denied where it does not appear that the right which plaintiff sought to enforce was of any value and therefore there was no fact which could be used as a basis for computation upon which to predicate an extra allowance.
    Before Freedman and Trtjax, JJ.

      Decided June 27, 1890.
    Appeal from an order denying a motion for an extra allowance of costs to defendants.

      Stickney & Shepard, attorneys, and Nelson S. Spencer of counsel, for appellants, argued :—
    I. The defendants are entitled to an allowance (in the discretion of the court) of “a sum not exceeding five per centum upon the sum recovered or claimed or the value of the subject matter involved.”
      (Code of Civil Procedure, § 3253). The subject matter involved in this action was the 6,523 shares of forfeited stock, once the property of the plaintiff The actual market value of this stock was .indeterminate, but it is certain that its value, for the purposes of this motion, was at least $15,267, the amount of the unpaid assessments. It must be assumed that the stock had a value in excess of that sum, or the plaintiff would not have commenced this action, and in his complaint offered to pay it, to recover the stock. Nor would the defendants have defended the action if they did not consider the stock worth more than the $15,267 which the plaintiff offered them. The judgment of the court fixed at least that value upon the stock by providing that the plaintiff must pay that sum in order to reacquire the stock. The stock then was worth at least $15,267, and upon that sum the defendants are entitled to an allowance.
    II. The plaintiff in bringing the action took a position as to the value of the stock from which he cannot now retreat. He asked to be relieved from the forfeiture on payment of the unpaid assessments on his stock. The amount of those unpaid assessments was fixed. In the language of Judge Danforth (Adams v. Arkenbrugh, 106 N. Y. 615) : “It is his statement of the amount involved in the action,” and “itis not for him to say that this notice is a nullity.”
    III. In fact, it must be assumed that the value of the subject matter of the action was $163,075. The plaintiff’s forfeited stock was the subject matter. There were involved in the action 6,523 shares of this stock of the par value of $25 each, or a total of $163,075; This value the court will presume, in the absence of other testimony, to be their real value. It is on this sum that the defendants are really entitled to have the allowance computed. But the defondants are willing to waive this presumption and accept an allowance on the actual sum of money which the plaintiff, if successful, was by the judgment obliged to pay to recover his stock. Smith v. Baker, 42 Hun, 504, 507 : Daniels, J.: “ It may probably, in the absence of any proof, be presumed that the shares were of their face value, for they would ordinarily represent that amount of the capital stock of the bank issuing them, which, if it complied with the law, as it is to be presumed it had, would give them this extent of value. But the court could not presume them to be worth more than that sum.” In Mingay v. Holly Manufacturing Company, 99 N. Y. 270, the subject matter involved was the validity of a contract. The court say : “ A pecuniary right was directly involved in the action and the value of that right was, we think, the basis for an allowance under the last clause. It is immaterial that the form of the action and the relief sought would not authorize a money judgment in favor of either party. * * The real question litigated was whether the Holly company was entitled to enforce the contract * * and, its right having been established, the contract price for the purpose of computing the allowance, was, we think, the subject matter involved.” Similarly in this case the real question was whether the company was entitled to insist upon its forfeiture of the plaintiff’s stock for non-payment of assessments. Its right so to insist was established and the amount of the assessments unpaid, for which that forfeiture was made, was at least the value of the subject matter involved.

      S. A. & D. J. Noyes, attorneys, and Peter B. Olney of counsel, for respondent.
   By the Court.—Truax, J.

The motion for an extra allowance was denied upon the ground that it did not appear that the right which plaintiff sought to enforce was of any value and, that, therefore, there was no fact which could be used as a basis for computation upon which to predicate an extra allowance. The only allegation in the printed papers bearing upon the question of the value of the subject matter involved in the action, is the allegation that the action was brought to procure a judgment allowing the plaintiff to redeem from forfeiture certain stock of the defendants upon payment of the sums due thereon for unpaid assessments, and that the amount so due was at the time of the trial $15,267.

We are of the opinion that this is not evidence that the stock was worth the sum of $15,267. It may well be that the stock had been assessed for more than its value. We have not the pleadings before us, and we cannot say what the allegations in the pleadings were, nor can we say whether the plaintiff was estopped from denying that the stock was of the value above specified.

Order affirmed with costs.

Freedman, J., I concur in result.


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    MARGARET J. O’HARA, as Administratrix, etc., Respondent v. SAMUEL W. EHRICH, et al., Appelants.

      Bill of particulars in regard to negligence in management of an elevator.

    The allegation in the complaint that plaintiff’s intestate was killed by reason of the negligent and imperfect construction, management and operation of the elevator, is not particular enough. In what respect was the elevator negligently and improperly constructed? In what respect was it negligently and improperly managed and operated? or, in what respects does plaintiff expect to prove that the elevator was negligently and improperly constructed, managed and operated ? These are questions plaintiff should answer in a bill of particulars. If plaintiff cannot show this and prove the same she cannot recover. The mere happening of the accident does not place upon defendants the burden of proving that it was not caused by their negligence.
    Before Freedman and Trtjax, JJ.

      Decided June 27, 1890.
    Appeal from an order denying the defendants’ motion for a bill of particulars of plaintiffs claim.

      Samuel W. Weiss, attorney, and Charles B. Cole of counsel, for appellants, argued :—
    I. This case comes exactly within the lines laid down by the Court of Appeals where a bill of particulars should be granted. The intricate nature of elevator machinery and of its operation and of its attachments is such that it is simple justice to a party who is called upon to defend its correct construction and operation that he be advised in advance what detail he must defend. A party might prepare himself to demonstrate the perfect nature of the elevator in a dozen different particulars, and yet, through oversight or inexpertness, fail to prepare himself upon some slight matter, which may be material and the very point upon which the attacking party relies. Again, the party attacked should be saved the needless expense of time and money in preparing to defend the entire construction and operation of an elevator when probably not more than one or two elements of it are involved in a controversy. Again, the defendants allege that the doors of the elevator were closed in the usual manner, at the usual time, and investigation develops no fact whereon negligence could be predicated. Defendants therefore are left to speculate and work in the dark upon possibilities which are numberless, while the plaintiff makes, upon a basis known to her, the general charge of negligence without any specification of detail. The rule was laid down in Tilton Beecher, 59
      N.Y. p. 76, viz. : “ A bill of particulars is appropriate in all descriptions of action where the circumstances are such that justice demands that a party should be apprised of the matters- for which he is to be put for trial with greater particularity than is required by the rules of pleading.” In Dwight v. The Germania Life Insurance Company, 84 N. Y. p. 505, the court again says : “ The purpose of a bill of particulars is to give the party every reasonable facility for coming to trial fully prepared for all that may be produced' by the other side/’ These are the two cases which have virtually settled the interpretation of the section of the Code which governs the granting of a bill of particulars. The defendants have shown to the court that, without the bill of particulars asked for by them, they cannot come to the trial “ fully prepared for all that may be produced by the other side,” and the plaintiff, by failing to deny this allegation in the moving papers, confesses this to be true. If. then, the complaint is true, the facts wherefrom negligence is deducible are wholly within the knowledge of the plaintiff, and to keep these facts (not the evidence of them, for this is not asked in the bill of particulars) is to prevent due preparation for trial.
    II. A bill of particulars of what plaintiff relies upon as constituting the negligence in a case of damages for accident caused by negligence is proper. The exact question has recently been adjudicated in the Supreme Court, and it was there held: “ The defendants, to prepare for trial, should know wherein consist the negligence which is to be the ground of the recovery against them. If the plaintiff has in view the existence of defects which h^.could prove under general allegations of negligence, other than those he has named in the complaint, he should furnish a specification of them to the defendant. If he has no such proof, the order does not touch him.” Kearnes v. The Coney Island & Brooklyn Railroad Co., 17 N. Y. State Rep. 692. Negligence is á conclusion which the law draws from certain facts. These facts which constitute the premises from which negligence is deducted, should be-equally within the knowledge of both parties, in order that they may be on an equal footing. This is precisely what was sought by. the motion for a bill of particulars, namely, that the defendants might know the salient facts from which the plaintiff expects the court and jury to draw the' conclusion of negligence, in order that they may be prepared to submit evidence upon those precise points to the end that the court and jury may find adversely to the contention of negligence. If evidence had been asked of the facts by defendants, the disposition of the motion below would have been eminently proper, under the rule laid down in Ball v. Evening Post Publishing Co., 31 Hun, 11; but that is precisely what the defendants did not ask for— their application was simply to be made acquainted with the facts which plaintiff’s evidence is expected to establish. And they are entitled to be protected against surprise. This is the raison d'etre of a bill of particulars. Drake v. Thayer, 5 Rob. 694-701 ; Gee v. Chase Manufacturing Co., 12 Hun, 630-632. The plaintiff relies, to sustain the order appealed from, upon the case, of Reardon v. The N. Y. Consolidated Card Company, 18 Jones & Spencer, 514. But there is a controlling distinction between that case and the case at bar. The motion there was tb make the. complaint more definite and certain or to furnish aj-bill of- particulars. As a motion to make more definite lies only before issue joined, it is self-evident that the bill of particulars was asked to frame an answer and the court very properly refused it upon the ground that, by a general denial", the burden of proof would be thrown upon the plaintiff to establish the facts of negligence, and no bill of particulars was necessary to enable them .to put in this general denial. The court says: “ There will be no difficulty in their making such answer to her complaint as would put on her the burden of proving the existence of the defect.” In other words, the general term held, substantially, that they would not order a bill of particulars in a negligence case to enable the defendant to put in a general denial. The present case is in an entirely different position ; the application was made after issue was joined ; the plaintiff admits, by not denying, that without the bill of particulars defendants cannot make due preparation for trial and are at the mercy of the plaintiff. The present application, therefore, does not come under the ruling of the Reardon case, but comes under the Dwight case above cited, which determines that a defendant has a right to go to trial, “fully prepared for all that may be produced by the other side.” And the disposition of the motion below deprived them of this right.

      Harvey Weed, attorney, and H. F. Lawrence of counsel, for respondent, argued :—
    I. Bill of particulars will not be ordered where the defendant is as well acquainted with the facts as plaintiff, or has equal means of ascertaining the same. Power v. Hughes, 39 N. Y. 482; 7 J. & S., 482 ; See Note on Bill of Particulars in 2 Civil Proc. 240 ; Wiegand v. DeJonge, 18 Hun, 405.
    II. It is not the office of the bill to enable defendant to impeach or defend the claims asserted by the complaint. Drake v. Thayer, 5 Robt. 694 ; Fullerton v. Graylock, 7 lb. 551. Nor to disclosegr ounds on which plaintiff claims to recover. Seaman v. Low, 4 Bosw. 338. The complaint definitely apprises defendants of the exact charges made against them—
      (a.) It gives the date of occurrence, (b.) It gives the time of day. (c.) It alleges its occurrence on defendants’ premises, (d.) It gives the nature of the act causing intestate’s death : i. e., “ Shutting down the doors over a certain shaft or elevator way.” The defendants in their answer deny that they were in possession or control of the elevator. Defendants then swear, in their moving affidavit, that the elevator was new, built by Otis Brothers, carefully constructed, and in perfect operation, and never had any repairs thereto. It is here submitted—First.— That if it be true, as indicated by paragraph 3 of their answer, that they were not in possession or control of the elevator, they can scarcely be held responsible for its management and operation. Second.—That if the allegation of their affidavit is true the elevator was perfectly constructed and in perfect operation. Third.—That it is apparent from their affidavit that they have complete access to the elevator way and ample information as to its construction, . management and operation, and means of obtaining same superior to plaintiff. Hence it is urged that the application for particulars in regard to the elevator should be denied.
    III. Granting a bill of particulars is discretionary with the court. Dwight v. Germania Life Ins. Co., 84 N. Y. 502. And is a power always sparingly exercised. Has almost invariably been denied in every similar case. Murphy v. Kipp, 1 Duer, 659; Berohurst v. Dyer, 3 Law Bull., 92; Schmidtkunst v. Sutro, 16 Civ. Pro. 143. Diligent search has failed to find any case where in a similar action the bill has been ordered after issue joined. It is never granted to help a party to evidence for his defence or to form a defence. Orvis v. Dana, 1 Abb. N. C. 268.
    IV. This court has passed upon this precise question in Reardon v. Consolidated Card Co., 50 N. Y.

      Supr. Ct. Rep. 514, a case where the allegations' of the complaint were very much more meagre than in the one at bar. There the complaint alleged a machine to be defective but did not say in what respect; and this court at general term upheld the decision of the special term justice, denying a motion to make complaint more definite and certain and also a motion for bill of particulars,
   By the Court.—Truax, J.

Counsel for plaintiff in his brief on this appeal stated that the plaintiff alleged the negligent act of the defendants, that caused the death of the plaintiff’s intestate, was the “ shutting down the doors over a certain shaft or elevator way.” This statement by counsel is not correct. The complaint does contain such an allegation, but it adds to it the allegation “ and the negligent and imperfect construction, management and operation of said elevator thereat by defendants.” The allegation that plaintiff’s intestate was killed by reason of the negligent and imperfect construction, management and operation of the elevator, is not particular enough. In what respect was the elevator negligently and improperly constructed ? In what respect was it negligently and improperly managed and operated ? Or, rather, in what respects does plaintiff expect to prove that the elevator was negligently and improperly constructed, managed and operated, is a question that plaintiff should answer before defendants are brought to trial. Lahey v. Kortright, 55 Super. Ct. 156.

If plaintiff cannot show in what respects she expects to prove that defendants were negligent, she cannot recover in this action. The mere happening of the accident does not place upon the defendants the burden of showing that it did not happen through their negligence.

Order reversed with costs, and plaintiff ordered to furnish within ten days from the service of a copy of this order, a bill of particulars showing in what respect the elevator mentioned in the complaint was negligently or imperfectly constructed, managed .or operated, with ten dollars costs to the defendants to abide the event of this action.

Freedman, J., concurred.


text:
    CORNELIUS GEORGE CROWLEY, Respondent v. MARY MURPHY, Impleaded, etc., Appellant.

      Ejectment by grantee in name of grantor under Section 1501 Code Civil Procedure, amendment by bringing in as party plaintiff one of two grantors in the deed to the grantee omitted to be made a party, when not allowed—Section 452 has no application—Laches.

    Cornelius George Crowley and Ellen Daly conveyed the premises involved in this action to Joshua C. Sanders. At the time of the conveyance one Mary Murphy was in actual possession claiming under a title adverse to the grantors of Sanders. This action was brought by Sanders in the name of Cornelius George Crowley only, and is maintained in his name by said Sanders against Mary Murphy and one Martin Donohue. Issue was joined by the answer of Mary Murphy, and a reply thereto. The issue was brought to trial in May, 1889, and the jury disagreed. On this trial the facts showing that Ellen Daly, at the time of the deed to Sanders, had a life interest in an undivided moiety of the premises, and a dower right in the whole, appeared. The issue was again brought to trial in October, 1889, the defendant Mary Murphy endeavored to procure a postponement of the trial, but her motion therefor was denied; thereupon plaintiff introduced his evidence, and said defendant being unprepared with any evidence, a verdict was rendered in favor of plaintiff and judgment entered thereon. Thereafter defendant Murphy moved for a new trial under Section 1525 Code Civil Procedure upon payment of costs; the motion was granted and a large sum paid for costs. Thereafter, in March, 1890, the issue came on for trial a third time and at the close of plaintiff’s case defendant Murphy moved to dismiss the complaint on the ground that the evidence failed to establish a cause of action; the motion was denied, and thereupon the court stopped the trial and dismissed the j ury with leave to plaintiff to move at special term to amend his complaint. A few days thereafter plaintiff’s attorney moved for an order bringing in Ellen Daly as a party plaintiff, and that the summons and complaint be amended in conformity therewith.
    The motion was made on the petition of Ellen Daly, setting forth that she was a grantor with Cornelius George Crowley and that she had a life interest in an undivided half of the premises at the time when the deed was made to Sanders, and praying that an order be made makin ' her. a party plaintiff; and on an affidavit made by one of plaintiff’s attorneys. The point that the action was not maintainable in the name of Cornelius George Crowley alone does not seem to have been taken before the last trial. The motion was granted at special term with out costs.

      Held, (1.). That in view of the trials, the payment of costs by defendant and the laches of plaintiff in moving, the motion should have been denied and plaintiff left to begin anew.
    (2.) For a more important reason the motion should have been denied and plaintiff remitted to a new’action, viz: that defendant having availed herself of the statutory right to a new trial given by section 1525 of the Code of Civil Procedure, and paid the costs required by that section, she was entitled to a new trial on the same issue as those on which the previous trial was had; • and that the order appealed from would present new issues.
    (3.) That if Ellen Daly was not a necessary party the motion should not have been made, and it was, therefore, unecessary to determine whether she was or was not a necessary party.
    (4.) The order should be reversed.
    Before Freedman and Truax, JJ.

      Decided June 27, 1890.
    Appeal from an order made at special term allowing the plaintiff to amend the summons and complaint in this action by adding the name of one Ellen Daly, as party plaintiff, and by adding to the complaint such allegations as might be appropriate to set forth her interests in the premises mentioned in the complaint.
    The action was commenced in the year 1888, in the name of Cornelius Gfeorge Crowley, grantor, and Joshua C. Sanders, grantee, against Mary Murphy and others, under section 1501 of the Code of Civil Procedure, to recover the possession of certain premises situate within the city and county of New York. The complaint was subsequently amended by striking the name of Joshua C. Sanders therefrom.
    The facts sufficiently appear in the opinion and head note.

      John Hayes, attorney, and David B. Ogden of counsel, for appellant, argued:—-
    I. The plaintiff was guilty of laches in not sooner applying for the order. The defect was known when the complaint was drawn, and was sustained by evidence on the trial before Mr. Justice O’Gorman. An order permitting an amendment of the complaint will not be granted where the party applying has been guilty of laches. Goudy v. Poullain, 2 Hun, 218; Yeet v. Wicker, 10 How. 193 ; or as was said in Butter v. Fairly, 17 State Rep. 109, an amendment will' not be allowed where counsel before entering on the trial, knew the conditions of the pleadings and chose to experiment with the other side as to their diligence in discovering defects.
    II. Section 452 is not applicable to the present case, for the reason that it is not shown that Ellen Daly has, and as a matter of fact she cannot have, any interest whatever in the subject matter of the action or in the real estate, the title to which is sought to be affected thereby ; nor is she sought to be made a party because she has any such interest, but only because she was a grantor in the deed to Sanders. No matter what interest she may have had in the property, it would not entitle the plaintiff to join her as a party plaintiff in this action unless she had been one of the grantors in the deed to him. Furthermore, in such cases it is the uniform practice to make the party applying to be admitted to the action a party defendant in the suit, and there is no precedent for joining a party plaintiff in that way. Nor can the motion be sustained under the first part of this section, which provides that where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. An amendment under this section is. only allowed where the plaintiff shows a cause of action in himself, but owing to the absence of other parties there can be no complete determination of the controversy.' In the present case no determination whatever can be had in the action as it stands at present, for the reason that the plaintiff has not complied with the provisions of the Code of Civil Procedure by bringing his action in the name of his grantor. The plaintiff is suing under section 1501 of the Code. That section provides that an action of ejectment may be maintained by a grantee in the name of his grantor where the conveyance under which he claims is void because the property conveyed by it was held adversely to the grantor at the time of the conveyance. In the case of Hasbrouck v. Bunce, 62 N. Y. 483, this provision was construed, and it was held that in order to maintain the action all the grantors in the deed must be joined as plaintiffs. See also Sayre v. Frazer, 47 Barb. 26 ; Newman v. Marvin, 12 Hun, 236 ; McMahon v. Allen, 12 How. 89. Nor does the enactment of section 1500 of the Code of Civil Procedure change the rule as was contended by the plaintiff s counsel upon the argument of this motion. This action is not brought by one or more of the joint tenants or tenants in common to recover their share. It is not brought under that section ; it is brought under section 1501 to recover the whole property; and it cannot be supposed that section 1500 intended to authorize a grantee to commence as many actions under section 1501 as there were grantors in his deed. It is true that section 1500 was enacted after the decision of Hasbrouck v. Bunce, and that in the Revisers’ notes to the Code it is expressly stated that the object in passing that section was to change the rule laid down in Hasbrouck v. Bunce. An examination of Hasbrouck v. Bunce, however, will show that it decided two questions: First, that under the law as it then stood more than one, but less than all of the tenants in common could not bring ejectment. This rule was changed by section 1500. Hasbrouck v. Bunce, also held further that an action under section 1501 must be brought in the name of all the grantors, and this rule has never been changed, and it is so reasonable that it can hardly be supposed that it will.
    III. There is, however, another and conclusive reason for reversing the order appealed from. This is an action of ejectment. The defendant has availed herself of the statutory right given by section 1525 for a new trial. This new trial must be of the same issues as those which were tried in the first action. To amend the complaint so as to include different issues and to compel her to try them would be to deprive her of the statutory right secured to her by section 1525. One of the defences set up by the answer in the action is a title obtained by adverse possession. If Ellen Daly is intruded into this case as a plaintiff it will become necessary for the defendant in order to sustain her defence to prove an adverse possession against her as well as against Cornelius George Crowley, and it is evident that to sustain such an issue may be more onerous than it would be to sustain it against Cornelius George Crowley if he were the sole plaintiff. The plaintiff had a plain remedy, which was to discontinue his action and recommence.

      Townsend & Mahan, attorneys, and Frank J. Mather of counsel, for respondent, argued:—-

      I. The order is not appealable within any of the cases enumerated as appealable within section 1347 of the Code of Civil Procedure. (1.) The order in no respect changes the issue already raised by the pleadings. The issue is the same. The defence the same. It does not involve the merits. The defendant, in answering the complaint, waived any objection as to defect of parties, which could only be taken by demurrer. Hand v. Burrows, 15 Hun, 481; Hasbrouck v. Bunce, 62 N. Y. 483. (2.) It does not affect the rights of the defendant, if she has any, as claimed in her answer. If the order had imposed costs or other burden, on either party, or affected the alleged right of either party, (and it does not,) in would have been appealable by such party. Hand v. Burrows, (supra).

    II. The order was made in strict compliance with the mandate of section 452 of the Code of Civil Procedure. It is obvious, therefore, that it is non-reversible. Consequently it is not appealable.
    III. While under section 452 of the Code, it is mandatory upon the court to grant the order appealed from, and the court has no discretion to refuse it; • yet, even if the discretion of the court alone had been invoked, the order should have been granted under section 723 of the Code. The amendment granted by the order, does not change in any respect the claim of the plaintiff, or the defence interposed by defendant; nor does it affect the substantial rights of the defendant, if she has any. The order, therefore, is not appealable if it had been made under the discretionary power of the court. Sayre v. Frazer, 47 Barb. 26 ; Thomson v. Kessel, 30 N. Y. 383, 391; McGown v. Leavenworth, 2 E. D. Smith, 24; N. Y. Ice Co. v. N. West. Ins. Co., 23 N. Y. 357; Salters v. Genin, 10 Abb. 478; Schermerhorn v. Wood, 30 How. 316 ; Price v. Brown, 98 N. Y. 388.

      IV. Under section 1500 of the Code of Civil Procedure, the plaintiff Crowley had the right to maintain the action without the joinder of Ellen Daly, brought in as party plaintiff by the order. The plaintiff Crowley is vested with the title in fee of the entire estate in suit, subject to a life interest of his mother, Ellen Daly, in an undivided half. Section 1500 of the Code was enacted since the decision in the case of Hasbrouck v. Bunce (supra), expressly according to the opinion of the compilers of the Code, “ to annul the law as settled ” in that and other like cases. See note under § 1500 of Code, Pocket Edition. See note under § 1500 of Code, Bliss’ Code. Nevertheless, it was highly proper that Ellen Daly, having such life interest, should be brought in as a party plaintiff, on the ground of public policy, in avoiding a multiplicity of suits, if no other ; but especially on the ground that “ a complete determination of the controversy ” might be had in this one action (§ 452, Code of Civ. Proc). In such behalf the court might, of its own motion, have properly made the order appealed from.
    V. The order appealed from is conceded as proper and demanded by the appellant herself. At the trial brought on before Chief Justice Sedgwick and a jury, counsel for the defendant insisted that Ellen Dalv should be made a party in the action, and that the trial could not go on unless she was made a party. The counsel for the defendant, by his course at the trial, manifestly conceded that the order he now appeals from was proper and necessary. He is now estopped from objecting to what he then insisted was essential.
   By the Court.—Truax, J.

It is not necessary for Hs to determine the interesting questions suggested by counsel for respondent. If Ellen Daly was not a necessary party,' plaintiff should not have made the motion that he did make. We think that in view of the fact that there have been two trials of this action and that defendant had paid one large bill of costs to plaintiff and because of the laches of plaintiff in making the motion, the motion should have been denied and plaintiff left to commence his action anew.

There is another and more important reason why the motion should have been denied. This is an action of ejectment. As before stated, the-case has been tried twice.. And the defendant has availed herself of the statutory right given by section 1525, and has paid the costs required by that section in order to obtain a new trial. This new trial should be of the same issues as those that were tried in the first action. One of the issues tried in the first action was whether as against the plaintiff in that action there had been adverse possession. Now, if the amendment sought for is allowed, a new issue will be presented in this action, viz : Whether the defendant can show adverse possession not only against the plaintiff, Cornelius J. Crowley, but against another person, Ellen Daly. The plaintiff, if he saw fit to do so, could have discontinued this action and could have begun another, in which new action he could have brought in all of the necessary parties.

The order appealed from is reversed, with costs, and the motion is denied with ten dollars costs.

Freedman, J., concurred.


author: Pee Cueiam.

text:
    EDWARD LANGE, Appellant v. DAVID LEWI, Respondent.

      Claim and delivery, in what right defendant may re-bond, sufficiency of affidavit on re-bonding.

    The defendant in an notion of claim and delivery may re-bond on the ground that a third party is entitled to the property without connecting himself with the title of such third party.
    An affidavit by the defendant alleging that such third party “is as deponent is informed and believes the owner of said property subject only , to deponent’s right,” is sufficient.
    Before Freedman and O’Gorman, JJ.

      Decided June 27, 1890.
    Appeal by plaintiff from an order denying his , motion to compel a delivery to him by the sneriff of certain articles.
    The question involved on this appeal is as to the sufficiency of an affidavit delivered to the sheriff-to prevent the delivery by him to the plaintiff of certain articles taken by him under a requisition issued to him by plaintiff in an action of claim and delivery. The affidavit was as follows :
    “ City and county of New York, ss :
    David Lewi, of said city, being duly sworn, says that he is the defendant herein ; that the summons in this action was personally served upon deponent on the 24th day of April, instant ; that no copy of the complaint has been served on him ; that annexed to said summons was a copy of affidavit, showing that said action has been commenced to recover certain chattels particularly described in a schedule to such copy affidavit annexed ; that the defendant is lawfully entitled to the possession of said chattels by virtue of a special property therein to wit: this deponent holds the same as a warehouseman and as the depositary of Alexander Agar, who is, as deponent is informed and believes, the owner of said chatties, subject only to deponent’s rights and property therein.”
    The judge at special term on denying the motion wrote :
    Tbuax, J.—“ The Code of Civil Procedure, § 1723, authorizes a defendant in an action for a chattel to defend on the ground that a third person was entitled to the chattel without connecting himself with the latter’s title. Section 1704 says that the affidavit required by that section must contain ‘ an allegation,’ &c. There is such an allegation in the affidavit delivered to the sheriff. Thatitis made on information and belief is immaterial, for he is authorized to defend on information and belief. Motion denied, with costs to abide event.”
    The other facts sufficiently appear in the opinion.

      Carter, Hughes & Cravath, attorneys, and Frederick R. Kellogg of counsel, for appellant, among other things, argued:
    II. The defendant’s affidavit, delivered to the sheriff with the notice requiring the return of the chattels to the defendant, is entirely insufficient to authorize such return. The Code requires an affidavit containing an allegation, either that the defendant is the owner of the chattels, or that he is lawfully entitled to the possession thereof by virtue of a special property therein, the facts with respect to which must be set forth. It is not pretended by the affidavit in question that defendant is the owner of the chattels, he must therefore rebond by virtue of having a special property therein and must set forth the facts with respect to such special property. The provision of the Code above referred to which is couched in the same language as § 1695 relating to the plaintiff’s affidavit upon issuance of the replevin writ, does not mean, as indicated in the opinion of the court at special term, that a general allegation of the legal conclusion that the defendant has a special property in the chattels is all that is necessary. Depew v. Neal, 2 Abb. 135 ; Fairbanks v. Bloomfield, 2 Duer, 349; Gibson v. Levy, lb. 176. Under the interpretation of the statute given by these cases this affidavit is wholly insufficient, (a) The mere statement of the legal conclusion that defendant has a special property in the chattels is not in itself of any force. It must depend solely upon the facts stated as its basis, (b) The only positive allegations of the affidavit do not show any special property in defendant. The only facts alleged positively in the affidavit for the purpose of showing special property are, that defendant holds the chattels as a warehouseman and as the depositary of Alexander Agar. No lien or charge upon the property in behalf of defendant himself is attempted to be shown. This simply constitutes defendant a mere depositary having no independent lien, and as such he has no special property in the chattels. Story on Bailments, 8th ed., §§ 93 to 95, inclusive; Commonwealth v. Morse, 14 Mass. 217 ; Waterman v. Robinson, 5 lb. 303 ; Dillenbach v. Jerome, 7 Cow, 294 ; Norton v. People, 8 lb. 137 ; Giles v. Grover, 6 Bligh. 277 ; Baker v. Hoag, 7 N. Y. 557.
    II. The allegations of the ownership of Agar are insufficient to show any special property in defendant. Harrison v. McIntosh, 1 Johns. 380 ; 10 Johns. 372 ; 8 Wend. 45.1; 12 lb. 74 ; 2 Abb. 137. But further they being on information and belief, must be disregarded. The general assertion of a fact upon information and belief in an affidavit, where the source of deponent’s information and the grounds of his belief are not set forth, has no probative force as to the existence of that fact, and must be disregarded. Chambers v. Durand, 33 Supr. Ct. 404 ; Mowry v. Sandborn, 65
      N. Y. 584 ; Lyon v. Baxter, 64 How. 426 ; St. Amant v. De Beixcedon, 3 Sandf. 703 ; Steuben Co. Bk. v. Alberger, 78 N. Y. 258 ; Neal v. Sachs, 15 W. D. 477 ; St. Amant v. De Beixcedon (supra) ; Perry v. Volkening, 44 Supr. Ct. 332 ; Fowler v. Burns, 7 Bosw. 637 ; People v. Mayor, 9 Abb. 253 ; Richters v. Littel, 21 W. D. 133 ; Dreyfus v. Otis, 54 How. 408 ; Hale v. Rogers, 22 Hun, 19 ; Morris v. Matthews, 19 W. D. 376. In the opinion at special term, the court attempted to uphold the allegations upon information and belief by saying that inasmuch as the Code authorizes a defendant in replevin to set up in his answer the title of a third party in response to plaintiff’s claim, and inasmuch as such title might in his answer be alleged on information and belief, that therefore, in his affidavit for the redelivery of the chattels to him the defendant would not be compelled to be more positive in his averments than would be required in his answer. But by such reasoning the whole distinction between an interlocutory application where the only proof is furnished by affidavit and the trial of the action where the proof is furnished not by the pleadings but by the sworn testimony of witnesses, subject to oral cross-examination, is overthrown. The position of the court at special term ignores the fact that the defendant’s answer is not in itself any proof of the facts therein contained nor is it needed to be; but is simply serviceable in framing issues which are afterwards to be proven by oral and sworn testimony in open court. As well might one say that since the plaintiff in an action for goods sold and delivered may make the allegations of his complaint upon information and belief, therefore he is entitled to obtain a warrant of attachment against defendant’s property upon affidavits on information and belief, or that a plaintiff in an injunction suit whose complaint does not contain positive allegations is entitled to a temporary injunction upon affidavits framed in the same manner as those of his pleading. Yet nothing can be clearer than such is not the law. Affidavits presented upon interlocutory application are not governed by the rules relating to the verification of pleadings. Hecker v. Mayor, 18 Abb. 371 ; Steuben Co. Bk. v. Alberger (supra) ; and other cases cited supra.

      Hays & Greenbaum, attorneys for the sheriff; J. G. Flammer, attorney for respondent, and John L. Hill of counsel, on the questions' considered in the opinion, argued:—
    A proper affidavit was served with notice as required by §1704. Defendant was clearly justified in defending on his special property (lb. Sub. 1) or by reason of Agar’s claim of title (§ 1723). His affidavit sufficiently set forth the facts. The affidavit required by §1704 must be by defendant, and not that of any other person. He is not obliged to prove the validity of his claim, for there is no provision for any supporting affidavit. He, therefore, must state the facts as he would state them in an answer, and that he did.
   Pee Cueiam.

This is an appeal from an order denying plaintiff’s motion to compel delivery by sheriff to plaintiff of property which the sheriff on plaintiff’s requisition had taken in replevin. It appears that the defendant is a warehouseman; that he received the goods in question from one Alexander Agar on storage and issued his receipt therefor, and that he prevented a delivery to the plaintiff by delivering to the sheriff the notice, affidavit and undertaking required by § 1704 of the Code of Civil Procedure. The affidavit was sufficient for the reasons stated by the learned judge below, and we can see no merit in any of the points raised by the appellant.

The order should be affirmed with ten dollars costs and disbursements.