text:
    HUGH ROBERTS, et al., Respondents, v. SOCIETA ANONIMA, &c., Appellant.

      Pleading—issue as to correctness of alleged copy contract attached to complaint, what insufficient to raise.—Charter-party—'■'■true delivery ” what constitutes for purpose of earning freight.

    Where the complaint alleges the making of a certain contract by the parties, e. g., a charter-party—a copy of which is annexed to and made a part thereof; an allegation in tho answer admitting that the parties entered into a contract commonly called a charter-party ; that whether or not the copy attached to the complaint is a true copy defendant is ignorant, and therefore denies that it is so; and demanding the production of the original on the trial—raises no material issue as to whether or not the copy sets out the substance or legal effect of the contract made; and therefore plaintiff’s failure to produce the original on the trial, affords no ground for a dismissal of his complaint.
    Where the charter-party provides for the payment of a lump sum as freight, by the charterers to the owners, on “ true delivery of the cargo,” such provision has no reference to the poor condition of the cargo at the time of delivery; the word “true” in that connection qualifies only the act of delivery. If such condition be due to actionable default on the owner’s part, it furnishes ground of off-set.
    In this case, which was an action to recover a lump sum as freight, the cargo was mainly composed of a large quantity of oranges and lemons, and defendant offered to show that fifty boxes were missing at the time of delivery, and that the contents of fifty-eight more were robbed, more or less. There was no claim that there was an intentional taking by the owners. This offer was refused. Held, not error; that the quantity not delivered was an insignificant portion of the whole amount, and that the parties must have foreseen that a small portion of the cargo would, in the nature of things, be missing at the end of the voyage, and it cannot, therefore, be held that they intended the freight should not be earned in such event.

      It seems, that if there had been an intentional taking of the missing fruit, there could be no recovery.
    Before Sedgwick, Oh. J., Tritax and O’Gorman, JJ. ;

      Decided July 2, 1886.
    Appeal by defendants from judgment entered on verdict for plaintiffs as directed by the court, and from order denying defendant’s motion for a new trial made upon the minutes.
    The facts appear in the opinion.

      Ul lo, Ruebsamen & Hubbe, and Edward 8. Hubbe, for appellant
    :—I. The motion to dismiss after the close of plaintiffs’ case should have been granted and the denial of the motion was error. The charter party was not proved nor was it even offered in evidence. The answer does not admit the correctness of the copy annexed to the complaint; on the contrary it puts it very distinctly in issue and gives plaintiffs notice that the production of the original upon the trial will be insisted on.
    II. The complaint should haT e been dismissed for the reason that plaintiffs’failed to prove “the true delivery of the cargo.” The learned court held that a delivery of the cargo completes the right of the common carrier to his freight and that damage to cargo is no defense to a claim for freight, but a proper subject for a counter-claim and should have been pleaded as a counter-claim ; and that, therefore, no counter-claim being pleaded, no evidence of bad delivery was admissible under the pleadings. The error into which the learned court fell, consists in application to a suit predicated upon a charter-party, of the rule of law governing bills of lading. As between the charterer and the owner of the vessel the charter-party is the controlling contract as to all the terms or provisions which it expresses (Parsons on Shipping & Admiralty, 1869, vol. 1, 286). Delivery of the cargo according to the terms of the charter-party is a condition precedent in an action upon a charter-party (Post v. Robertson, 1 Johns. 24 ; 3 N. Y. Com. Law Rep. 24.)
    III. Defendant’s counsel offered to prove that 963 boxes of oranges were delivered in bad condition, that 50 boxes were robbed more or less, and that 58 boxes were not delivered at all. This offer was excluded on the ground that these facts should have been pleaded as affirmative defense or as a counter-claim. Now, if the action had been for freight moneys due under a mere bill of lading, it cannot be questioned that the defendant would have had the right, under a general denial, to prove the non-delivery of 58 boxes because even in that case, delivery, although in bad condition, is a condition precedent ; and as to this point there must be a reversal in any event. And as to the delivery of other portions of the-cargo in bad condition or robbed, it is sufficient to say that in this case under the charter-party not only delivery but “true delivery,” i. <?., delivery in good condition, is a condition precedent which should have been proved in the first instance by plaintiffs, because it was put in issue by the denials of the answer.

      Charles Stewart Davidson, for respondents:
    I. It must be noted, that the answer admits the making of the contract, and merely denies knowledge as to the literal exactness of the copy set forth in the complaint. This is not a general denial nor is it a specific denial of any material allegation of the complaint. If anything, it is new matter, under which the defendant might attempt to make some affirmative proof. But none was attemped. Further the defendant is a corporation; as such, it cannot by one agent execute a contract, and by another deny knowledge of what that contract is (Lloyd v. Burns, 38 Super. Ct. 423; Shearman v. N. Y. Central Mills, 1 Abb. 187). That this mode of pleading is bad; see the case of Wesson v. Judd (1 Abb. 254).
    II. The proposed defenses are in their nature affirmative, or proper subjects of recoupment or counter-claim, as such they should have been pleaded (McKyring v. Bull, 17 N. Y. 297). The charter was a hiring of the entire vessel for the specified voyage for a lump sum, and unless it be true that the non-delivery of a single pound of cargo works a forfeiture of the entire freight, these defenses could not be proven under the pleadings as they stand.. A charter for a lump sum is in fact rent for the use of the ship (Robinson v. Knights, L. R. 8 C. P. 465 ; The Norway, 3 Moore C. P. [N. S.] 245). In regard to the proposal to show that the plaintiffs did not deliver 963 boxes of oranges in good condition, and that they delivered 50 boxes partly emptied, it is sufficient to say that no offer was made to show that they were not delivered in the same condition as shipped, or damaged by aught but inherent deterioration, peculiar to the article shipped, nor was any bill of lading offered to show in what condition they were when shipped. Moreover, as was said by Kent, Ch. J., in Griswold v. N. Y. Ins. Co. (3 Johns. 321); “The consideration for the freight is the carriage of the article shipped on board ; and the state and condition of the article at the end of the voyage, has nothing to do with the obligation of the contract.” See also Dakin v. Oxley (L. J. 33 C. P. 115). There will not be a forfeiture of the entire freight moneys, where a lump sum is reserved as freight, owing to a trifling short delivery (Merch. Shipping Co. v. Armitage, L. R. 9 Q. B. 99 ; Ritchie v. Atkinson, 10 East, 295). The defendant’s claim for damages, if any, is the subject of cross-action or counter-claim, and not matter of defense (Garrett v. Milhurst, 4 Jur. N. S. 943 ; Shields v. Davis, 6 Taunt. 65 ; app’d 5 Den. 175 ; Alliston v. Herring, 11 Ex. 822 ; Meyer v. Dresses, 33 L. J. [N. S.] C. P. 289 ; Dunham v. Bower, 77 N. Y. 16 ; Schwinger v. Raymond, 83 Ib. 192). The cause of action became complete upon showing the termination of the voyage and the hauling of the vessel to the designated wharf or pier (Leslie v. Sears, 109 Mass. 424; The “ Norway,” 3 Moore P. C. [N. S.] 243. See also Shields v. Davis, 6 Taunt. 65 ; Davidson v. Gwynne, 12 East. 381). A defendant cannot prove damages by way of recoupment where no claim to recoup is set up in the answer (Crane v. Hardman, 4 E. D. 8. 448).
   By the Court.

Sedgwick, Ch. J.

The action was for the balance due of a lump sum agreed to be paid by the defendant as charterer of a steam vessel to the plaintiffs as owners. The complaint alleged that the plaintiffs and defendant entered ‘ ‘ into a certain contract, whereof a copy is hereunto annexed and marked ‘ A, ’ and made a part hereof.” This copy set out a complete charter-party between the parties. The answer of the defendant admitted that on the day named in the complaint the parties entered into a certain contract, commonly called a charter-party, but whether the copy marked A, is a true and correct copy of the said original this defendant has no knowledge or information sufficient to form a belief, and therefore denies that it is so, and insists that the original be produced upon the trial for greater certainty.” On the trial the original was not produced. At the end of plaintiffs’ case, defendant’s counsel moved to dismiss the complaint on the ground that the answer not admitting the charter-party to have been such as the copy annexed to the complaint described, there was a failure to prove the charter-party.

The ground was not sufficient. The answer made an issue upon whether the copy was true and correct. It would not be so if it did not reproduce parts of the original which were not essential to a description of the legal effect of the original. It would have been sufficient for the complaint to have stated that legal effect. The answer raised a false or immaterial issue, as it did not make an issue upon whether the copy set out the substance or legal effect of the contract that was made.

Another exception regards an offer made, which the counsel for plaintiffs consented should be passed upon by the court, as if its subject were contained in questions correct inform asked by defendant’s counsel of witnesses. The court overruled the offer, which was to prove that plaintiffs did not deliver 963 boxes of oranges, part of the cargo, in good condition ; that they did not deliver at all 58 boxes of the cargo ; and that they delivered 50 boxes of oranges with the contents robbed more or less.

The counsel for appellant argue that if these facts had appeared they would have proved that the plaintiffs had not made a true delivery of the cargo, the charter providing that the lump sum, excepting certain advances out of it, should be paid by the charterer on “ the true delivery of the cargo,” and, therefore, the time of payment had not come, or the fact did not exist which was by the contract to exist before there was a duty of payment.

The question then is, had the plain tiffs shown that there had been a true delivery of the cargo ? It was satisfactorily shown that all the cargo there was in the steamer at the time of arrival was delivered. The steamer, by the charter, was of the burden per net register, 1,118 tons. The defendant filled the whole cargo space of the vessel, excepting cross bunkers that would contain about 300 tons. The cargo belonging to defendant was in part 200 tons of sulphur, and the remainder was of boxes of oranges and lemons. So that the quantity of cargo not delivered according to the terms of the offer was an insignificant poiticn of the boxes of oranges and lemons stowed as cargo.

The bad condition of 963 boxes, as assumed by the offer, was no obstacle to the recovery of the lump sum. That was to be paid upon delivery, in fact, of the cargo, without reference to its poor condition at time of delivery. If the condition had become poor from an' actionable default on the part of the owners, then the defendant might have offset a proper amount if it had been claimed in the answer affirmatively. The answer did not make such a claim. The word “true” used with the word ‘ delivery ” qualifies the act of delivery, not the condition of the goods delivered.

When the parties stipulated as to true delivery, they intended to apply the words to a cargo liable to diminution from slight causes, that could not in the ordinary course of a voyage be prevented, unless by a stiict and expensive custody, that the nature of the cargo did not justify, and which the defendant could not have expected from the plaintiffs. They referred to the cargo as a whole, and not to each hundred of the many thousands of oranges and lemons. According to their sense of what was likely to happen, it must have been foreseen that a small portion of the whole would be missing at the end of the voyage. It is not to be imagined that either party meant that the freight should not be earned, unless every box of fruit was delivered, for on the theory of the defendant an omission to deliver one box would have been a defense, as to any part of the claim for the lump sum. If the offer had further suggested that there was proof of an intentional taking by the plaintiffs of what was not delivered, there should be of course no recovery.

There was, in my opinion, a true delivery of the cargo within the meaning of the charter-party, and the obligation of the defendant to pay the balance of the lump sum was complete.

In Post v. Robertson (1 Johns. 24), the fact was that none of the cargo, for the carrying of which the ■ freight alleged to be due had been promised to be paid, was delivered.

The remedy of the defendant after its obligation to pay the sum liquidated by the contract had become complete, was, if the non-delivery of the part of the cargo was a breach of any express or implied obligation of the plaintiffs, to make an affirmative claim in the answer, or to bring another action.

The judgment and order appealed from should be affirmed, with costs.

Truax and O’Gorman, JJ., concurred.


source: Caselaw Access Project

author: Sedgwick, Ch. J. O’Gorman, J.

license: Public Domain

text:
    AUGUST MATTHES, Appellant, v. CHARLES KERRIGAN, Respondent.

      Negligence—injuries through falling of scaffold.

    Plaintiff made a contract with defendant, for a lump sum, to trim certain stone work in front of a building owned by the latter, agreeing thereby to furnish the scalfold to be used in the work. Said scaffold was not furnished by plaintiff, and defendant offered to and did allow him to use one hung by the painters theretofore employed by defendant. Plaintiff while using the scaffold so hung was injured through its fall, caused by the giving way of the cornice of the building over which the ropes that supported the scaffold ran, the wood of said cornice being rotten; but there was no testimony that this defect was apparent.
    JJeld, that the plaintiff was not defendant’s servant, and it in no way appearing that plaintiff was induced by defendant to omit to examine the security of the cornice, and it appearing that defendant’s act in furnishing the scaffold was not intended as understood to relieve plaintiff of any other duty or care than the furnishing of the scaffold as it was, that the complaint was properly dismissed.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Decided July 2, 1886.
    Appeal by plaintiff from judgment dismissing complaint, as directed by the judge at trial term.

      The facts appear in the opinions.

      L. Edgar Aron and Lewis Sanders, for appellant.

      Vanderpoel, Green & Cuming, and Henry Thompson, •for respondent.
   By the Court.

Sedgwick, Ch. J.

The action was for damages to plaintiff, caused as alleged by defendant’s negligence in furnishing to plaintiff a scaffold, on 'which to work in trimming stone in the front of a building. The scaffold fell from the giving way of the cornice of the building over which the ropes that supported the scaffold ran. The witnesses for plaintiff testified that the cornice gave away because the wood of which it was made was rotten.

In my opinion the complaint was properly dismissed. The plaintiff was not the servant of defendant. He and another had contracted to trim the stone front for a lump sum. By the contract, they were to furnish a scaffold on which they were to do their work. This shows that they were competent judges of the sufficiency of the scaffold and of the safety or unsafety of the way in which it might be hung. They were as competent as the defendant. For a reason, as to which there was some conflict of evidence, the plaintiff and his partner did not furnish the scaffold. The defendant offered to and did furnish and hang it, or rather allowed the plaintiff to use a scaffold that was hung by the painter employed by the defendant. The plaintiff was not, in any way disclosed by the testimony, induced by the defendant to omit to examine the security of the cornice. He and his partner had the same means of ascertaining its condition that the defendant had. There was no testimony that it appeared to be rotten. If that had appeared, it would have been apparent to the plaintiff, or his partner. They incurred no other risk than was contemplated by their original contract. The testimony shows that the action of the defendant, in helping the plaintiff and his partner to a scaffold was not meant by him, or understood by them to relieve them of any other duty or care than the furnishing of the scaffold as it was. From all the facts, I infer that if there were an omission of careful observation of the cornice, the omission was as really by the plaintiff as by the defendant.

It was also proved by the painter who hung the scaffold, who was in all respects as credible a witness as any who testified for plaintiff, that he Was used in his business to hang scaffolds of the kind ; that in hanging the one in question he used care, and that there was no appearance of the cornice being unsafe.

Judgment affirmed with costs.

Trtjax, J., concurred.

O’Gorman, J.

(Concurring).—This is an appeal from a judgment in favor of the defendant, entered on a verdict by direction of the court below.

The action was brought to recover damages for injuries to the person of the plaintiff, received while he was in the employment of the defendant, by reason of a fall from a platform furnished by the defendant, which plaintiff claims to have been unsafe and insecurely erected, through the negligence of the defendant.

' The defendant in August, 1883, employed one Schneider to repair the brown stone front of his house in Washington Square, at a certain contract price. Schneider was partner of the plaintiff in that business, and they, and one Schilling, their employee, went to work, beginning at the lower part of the plaintiff’s house. A scaffold was necessary'to do the work on the upper part of the house, and neither Schneider nor the plaintiff owned a scaffold. The defendant had engaged one Kelly, a painter, to paint the front of his house, and it was in some way, arranged between defendant and Schneider, that the defendant should have the use of the painter’s scaffold, when put up. Kelly had just finished work on some other house near by, and the owner wished the scaffold removed at once. Kelly thereupon, for his own convenience, and preparatory for the painting to be done by him for defendant, put up his scaffold on the front of defendant’s house, not knowing, however, that it was to be used by the stone-cutters, Schneider and the plaintiff, and Schilling. Kelly had been used to put up scaffolds, and used due care in putting this scaffold up for the use of his own men. He went on the roof of the house, and in person attended to fixing the supports of the scaffold and hanging it properly. He thought it perfectly safe for himself and his own men.

There is no evidence that the scaffolding was not competent and strong enough, or that it was not carefully put up by him, and carefully fastened. The scaffold had been in position for some days, when Schneider and the plaintiff, and Schilling went to work on it, at about 10 a. in. on August 13, 1883. In the course of the day, it was moved, and so remained for about two hours, until about 5 p.m., when it sagged on one side about one foot, causing the plaintiff and Schilling to fall to the ground.

The sagging of the scaffold was caused wholly by the breaking of a large part of the cornice, on the top of the house, over which the falls suspending the scaffold passed. This cornice was made of wood, covered with tin, and there was no indication or apparent reason to believe that the wood was unsound or likely to break. Kelly looked at the cornice and thought it was all right. The defendant testified that, before the plaintiff went to work, Schneider went with defendant to the roof of the house, and carefully examined the manner of fixing the support's of the scaffold, and satisfied himself, that by close examination, that all was right; that .there was nothing wrong about it. This is denied by Schneider, who says that he did not go to the roof before the accident, and that he took the defendant’s word for it. ■ He testifies, however, that he had used a painter’s scaffold when he needed it, or thought it the quickest way.

The question is whether, on the facts as taken most favorable to the plaintiff, the defendant is responsible for the breaking of the cornice and the sagging of the platform, and the consequent injury to the plaintiff. He was responsible if he failed to use reasonable and ordinary care in the putting up of the scaffold, and not otherwise.

The rule on that subject is well expressed in Devlin v. Smith (89 N. Y. 470), “an employer does not undertake absolutely with his employees for the sufficiency or safety of the implements and facilities furnished for their work, but only for the exercise of reasonable care in that respect, and where injury to an employee results from a defect in the implements furnished, knowledge of the defect must be brought home to the employer, or proof given that he omitted the exercise of proper care to discover it.”

Tested by this standard, it is hard to see wherein defendant failed to exercise all the care that the law required of him.

It does not appear that he had personally any knowledge as to scaffolds, or how they should be constructed or put up ; or that he had any knowledge of the liability of the cornice to break, or could by any ordinary care or caution have acquired such knowledge ; and he was justified in relying on the thorough examination made by Kelly, the painter, when he put up the scaffold for his own men. If, as defendant testified, Schneider went on the roof and made a careful personal examination of the mode in which the scaffold was there suspended, and concluded that it was all right, plaintiff was justified in depending on his opinion. If Schneider, without due examination of the mode of slinging the scaffold, and providing for its safety and its sufficiency for the purpose to which he intended to apply it, allowed more men to stand on it than was reasonably safe, then the disaster is attributable to his negligence.

The plaintiff, in order to sustain his action, was bound to prove affirmatively that it occurred by reason of the culpable negligence of the defendant. I think he has failed to do so (Morse v. N. Y. C. R. R., 23 Week. Dig. 469).

The judgment and order appealed from should be affirmed, with costs.


author: Sedgwick, Ch. J.

text:
    EDWIN B. WILCOX, Appellant, v. THE MAYOR, &c., OF NEW YORK CITY, &c., Respondents.

      Invalid assessment—recovery of amount paid on.

    A payment made to relieve land of an apparently invalid assessment, before there has been any attempt to enforce it against the'person or the land, is a voluntary payment and cannot be recovered back.
    That the common council did not pass the necessary ordinance for the doing of the work, makes the assessment apparently invalid.

    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Decided July 2, 1886.
    Appeal by plaintiff from judgment dismissing complaint entered on findings by judge at special term.
    The facts appear in the opinion.

      James A. Deering, for appellant:
    I. The assessment is void on the ground that there was no jurisdiction in the assessors to impose the assessment, or in the department of parks to do the work. As it was proven upon the trial that 155th street was laid out by the commissioners of streets and roads under the Act of 1807, and opened by the city August 1, 1837, no assessment could be laid for the work of grading it without an ordinance of the common council. No ordinance having been adopted, the assessors had not jurisdiction (In re Deering, 85 N. Y. 1 ; chap. 86, Laws 1813, § 175).
    IL The assessment is valid upon its face, and the facts showing the want of jurisdiction appeared by the testimony taken upon the trial. As the work was done on a street within the district committed to the jurisdiction of the department of public parks by chapter 565, Laws of 1865, which act dispensed with the necessity of an ordinance of the common council for work to be performed by that department and for the assessment of the expense thereof, and as the list contains the certificate of the assessors that they were “ duly authorized, directed and empowered to make a just and equitable assessment of the expense ” of the work in question, the assessment was valid on its face. Mo law requires any assessment list to contain a certificate by any officer of the regularity of all proceedings or of the facts showing jurisdiction. Nothing more is required than a certificate of the performance of the work and its cost. The circumstance that no ordinance of the common council was annexed to the list was not evidence presumptive or otherwise that the common council had not authorized both the work and the assessment (In re Bassford, 50 N. Y. 512).
    III. The plaintiff is entitled to recover the assessment paid by him because the assessment is in fact utterly void, on the ground that there was no jurisdiction in the assessors to impose the assessment or in the Department of Parks to do the work, and such want of jurisdiction does not appear upon the face of the list. It was not necessary that the assessment should be first vacated (Bruecher v. Portchester, 3 East. Rep. 736; Strusburgh v. Mayor, 87 N. Y. 453 ; Horn v. Town of New Lots, 83 Ib. 100 ; Peyser v. Mayor, 70 Ib. 497; National Bank of Chemung v. Elmira, 53 Ib. 49 ; Newman v. Supervisors, 45 Ib. 676 ; Marsh v. Brooklyn, 59 Ib. 280 ; Bank of Commonwealth v. Mayor, 43 Ib. 187). The rules established by the cases cited are : 1st. Where an assessment is in fact utterly void on the ground that there was no jurisdiction to' do the work or impose the assessment, and such want of jurisdiction does not appear upon the face of the list, an action may be maintained to recover back the money paid in satisfaction thereof without first having the assessment set aside or vacated. 2d. Where an assessment is merely irregular, informal or unjust, the assessors having jurisdiction to impose the same, then before an action to recover back the money paid in satisfaction thereof can be maintained, it is necessary to have the same vacated or annuled by the judgment of a court having jurisdiction of an action or proceeding for that purpose. 3d. Money paid to discharge an assessment valid upon its face to the officer authorized to collect the same and who has demanded payment thereof is not a voluntary payment.
    IV. The defense of voluntary payment as opposed to the claim of the plaintiff does not properly arise in this case. (1.) The money was paid to discharge a lien in the nature of judgment apparently valid upon its face. Payment of an assessment of this character, especially as here, after demand for payment by the collector of assessments, is not voluntary (Bruecher v. Portchester, supra ; Cases cited under Point III). (2.) Money paid on a void contract or obligation can always be recovered whether the payment was voluntary or not (Smith’s Executors v. Mayor, Daily Reg. Feby. 25, 1882 ; Pitchen v. Furen P. R. Co., 10 Barb. 406 ; Eno v. Woodworth, 4 N. Y. 249 ; Rice v. Post, 15 Johns. 503 ; Coffins v. Wendell, 1 Barb. 355). (3.) Coercion in fact need not be shown. The imposition of an apparently valid judgment or assessment lien is in law duress (Lott v. Swezey, 29 Barb. 87). (4.) But the notice and demand of payment in this case and the certainty of the penalty under the name of interest being added and the further fact of the certainty of an eventual sale of the premises under the statute, chapter 381, Laws of 1871, which declares the lease given by the comptroller presumptive evidence of the regularity of all the proceedings relative to the assessment and sale, rendered the payment in this case involuntary (Union Bank v. Mayer, 51 N. Y. 638 ; S. C., 43 Ib. 189; Scott v. Onderdonk, 14 Ib. 9 ; Marsh v. Brooklyn, 59 Ib. 280).
    V. That the plaintiff demanded relief that the assessment be vacated as well as judgment for the amount paid, will not bar his right to recover. A plaintiff is entitled to whatever judgment the facts admitted by the pleadings and proven upon the trial entitle him to, whatever the form of the demand for relief (Hemmingway v. Poucher, 98 N. Y. 281; Williams v. Slote, 70 Ib. 601). That the complaint also demanded that the assessment be vacated, is immaterial, because it was unnecessary to have the assessment first vacated.

      E. Henry Lacombe, corporation counsel, and George L. Sterling, for the respondents
    :—I. An action in equity to vacate an assessment is forbidden by section 897 of the Consolidation Act. The court below (Freedman, J.), has held the above statute conclusive against the defendants. The same view has been taken by the supreme court, both at special and general term (Jex v. Mayor, Opinion, Andrews, J., March, 1885; affirmed, 38 Hun, 638 ; Van Ness v. Mayor, Opinion, Van Vorst, J., July 23, 1885 ; affirmed 40 Hun, 631 ; see also, Heckman v. Mayor, &c., 22 Hun, 590 ; Mayer v. Mayor, &c., court of appeals, January 19, 1886). Strusburgh v. Mayor, &c. (87 N. Y. 452) is to be distinguished, and is limited in Knapp v. City of Brooklyn (97 N. Y. 520). It may be claimed that because the complaint demands that the assessment should be declared void, and makes a further demand for the recovery of the money, that a different case is made out than a mere action to vacate an assessment. There is no force in this, for no action to recover the money can be brought until the assessment has been set aside at the instigation of the plaintiff in a suit brought for that special purpose. The Act of 1858 provided an adequate remedy by petition, of which the plaintiff could have availed himself. The whole course of legislation shows clearly an intention to provide an exclusive remedy (§ 898 Consolidation Act, et seq.). Bvuecher v. Portchester, court of appeals, January 19, 1886, has no application.
    H. It is well settled that no action at law can be maintained to recover back money paid for a tax or assessment which has never been reversed, vacated or set aside (Strusburg v. Mayor, 87 N. Y. 452 ; Swift v. Poughkeepsie, 37 Ib. 511 ; Bank of Commonwealth v. Mayor, 43 Ib. 184; Marsh v. Brooklyn, 59 Ib. 280 ; Peyser v. Mayor, 70 Ib. 497 ; Wilkes v. Mayor, 79 Ib. 621).
    III. But even if this suit could be entertained, equity will not interfere where an assessment is void on its face, or where its illegality must appear in an attempt to prove the jurisdictional steps (Van Doren v. Mayor, 9 Paige, 387; Brooklyn v. Meserole, 26 Wend. 132 ; Heywood v. City of Buffalo, 14 N. Y. 534 ; Fleetwood v. City of New York, 2 Sandf. 475; Scott v. Onderdonk, 14 N. Y. 9 ; Crook v. Andrews, 40 Ib. 547 ; Marsh v. Brooklyn, 59 Ib. 280 ; Washburn v. Burnham, 63 Ib. 132). The illegality that exists in the assessment sought to be invalidated in this suit is the want of an ordinance authorizing the work. It is a case, therefore, precisely similar to Fleetwood v. City of New York (supra).

    IV. The payment of the assessment was voluntary, and cannot therefore be recovered back.. The assessment in this case being absolutely void, there was no obligation on the part of the plaintiff to make the payment which he desires to recover in this suit (Clark v. Dutcher, 9 Cow. 674; Peyser v. Mayor, 70 N. Y. 479; Fleetwood v. City of New York, 2 Sandf. 475 ; Forrest v. Mayor, 13 Abb. Pr. 350; Supervisors v. Briggs, 2 Pen. 26; Swift v. Poughkeepsie, 37 N. Y. 511; Flower v. Luce, 59 Ib. 603).
   By the Court.

Sedgwick, Ch. J.

The learned counsel for appellant, claims that he was entitled to recover for money had and received to his use. Although there is doubt that the action was brought for such relief, it will be assumed that the plaintiff could have recovered on such ground, if the testimony had justified it.

An assessment had been imposed upon plaintiff’s land, for regulating 155th street. The collector of .assessments published in the “City Record,” a “notice to property holders,” that the assessment referred to, confirmed and entered, had been received by his bureau for collection, and that payment made before a specified day would be exempt from interest, and after that day would bear interest at 7 per cent. After that without any warrant issued or further proceeding to enforce payment or any other demand, the plaintiff paid the assessment, which he now seeks to recover back, on the ground that he paid under duress of the assessment being apparently valid while in reality it was void.

It may be assumed that if the assessment were apparently valid a recovery could be had (Peyser v. Mayor, 70 N. Y. 497). But by the same case, if the assessment were apparently invalid, the payment was voluntary and there can be no recovery. On the argument it was admitted that if the defect in the proceedings which it was claimed made them void did appear on the face of the proceedings then there should be no recovery. The defect was, that the common council had not passed an ordinance for the doing of the work. In Fleetwood v. City of New York (2 Sanf. 475), to which reference is made in the case of Peyser, already cited, and seemingly approved, it was held that the fact that there was no ordinance of the kind passed, made the assessment apparently void. And it was further held that a payment of an assessment of such kind before there had been an attempt to enforce it, against the person or the land, was voluntary, and there could be no recovery of its amount from the city.

Judgment affirmed with costs.

Truax and O’Gorman, J J., concurred.


author: Sedg-wick, Ch. J.

text:
    MORRIS TUSKA v. SAMUEL EISNER, et al., as Executors, &c.

      Guaranty of mortgage—Extension of time to principal debtor—What not waiver by guarantor.

    Defendant’s testator duly guaranteed in writing the payment of a certain bond and mortgage. To an action on the guaranty, the defense was interposed that an extension of time had been granted to the mortgagor. There was testimony in plaintiffs behalf, to the effect that a brother of plaintiff had a conversation with the testator in which, in answer to a question, the latter said he would guarantee “ for two years longer for these bonds,” and that thereupon the extension of time in question, was granted for two years.
    Held., insufficient to show either anew and valid contract of guaranty, or an assent to the extension of time granted to the mortgagor.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Decided July 2, 1886.
    This case comes before the court pursuant to an order made by the judge at trial term, directing a verdict of $24,382.91, in,favor of the plaintiff, subject to the opinion of the court at general term, both parties waiving all exceptions.
    The facts are as follows : On September 2, 1870, one Koehler holding the legal title to certain premises, gave his bond and a mortgage upon said premises (which were then subject to prior mortgages for $30,000) to one Schwartz for $15,000 loaned thereon, payable on or before September 2, 1872. "On April 15, 1873, said bond and mortgage became the property of the plaintiff by assignment to plaintiff which was then accepted by him, and the time of payment duly extended for the term of two years from that date, upon the faith, and in consideration of an agreement, in writing, whereby one Henry Eisner simultaneously guaranteed the payment of said bond and mortgage. Between April 8 and 15, 1875, one Jonas Tuska, a brother of plaintiff, at his (plaintiff’s) request, called upon said Eisner at his place of business, at which interview, said Tuska testified the following conversation was had: “I asked Mr. Eisner if he will guarantee for two years longer for these bonds. Q. You asked Mr. Eisner if he would guarantee for two years more the money on this mortgage ? A. Yes ; and he said, ‘Yes.’ Q. Did you say anything to Mr. Eisner about your having talked with Mr. Koehler? A. No.” Thereupon, on the 15th of April, 1875, the plaintiff entered into a written agreement with said Koehler to extend the payment of said bond and mortgage of said Koehler for the said further term of two years from that date. The mortgaged premises were subsequently sold under the prior mortgages, and a deficiency remained. Neither Koehler nor Eisner paid the mortgage in suit or the interest thereon since April 15, 1875. Henry Eisner died January 29, 1882, and on February 7, 1883, plaintiff presented to the defendants, as his executors, plaintiff’s claim for the principal money of said bond and mortgage and the interest thereon from April 15, 1876, which claim was rejected by said executors, and this suit was begun for the recovery of the debt.

      Johnson & Tilton, and Albert Matthews, for plaintiff :
    —It was shown by undisputed evidence that for the benefit of Koehler (his associate in ownership of the mortgaged premises), the said Henry Eisner, upon the request of the plaintiff, did, at the proper time (and beforehand) assent to the extension of the payment of the bond and mortgage for the further term of two years from April 15, 1875 ; and in substance and effect also did agree that his guarantee should continue to run, and should not be forfeited or waived by reason of such extension being given by the plaintiff to accommodate said Koehler. Whatever words plaintiff’s agent may have employed, Henry Eisner must have known what he (Eisner) was asked to assent to, and to what he was assenting. He must be held to be bound by his word in the sense he believed his applicant understood him. That is the standard rule both of morality and law (Barlow v. Scott, 24 N. Y. 40). Such assent of a surety may be proved by parol; or it may be inferred from facts and circumstances ; and is equally effectual in either case to charge the defendants (Lafarge v. Herter, 11 Barb. 159 ; Wright v. Storrs, 6 Bosw. 611; Wright v. Storrs, 32 N. Y. 691 ; Remsen v. Graves, 41 Ib. 471; Ducker v. Rapp, 67 Ib. 464 ; Ross v. Hurd, 71 Ib. 14 ; Wyde v. Rogers, 12 Eng. Law & Eg. R. 162; Woodcock v. Railway Co., 21 Ib. 285 ; Solomon v. Gregory, 4 Harrison [N. J.] R. 112 ; Crosby v. Myatt, 10 N. Hamp. 318 ; Treat v. Smith, 54 Maine, 112 ; Adams v. May, 32 Conn. 160).

      George P. Avery, and Bichard S. Newcombe, for defendants
    :—I. An extension of time to the principal without the consent of the surety, discharges the surety, and this although the surety has sustained no damages by such extension (Calvo v. Davies, 73 N. Y. 211; Miller v. McCan, 7 Paige, 451; Huffman v. Hulbert, 13 Wend. 377; Tucker v. Rapp, 67 N. Y. 464 ; 11 Paige, 11). In cases of suretyship, the contract is the measure of liability, and the surety’s obligation should be construed strictly and favorably to him, so far as warranted by the terms employed (Ward v. Stahl, 81 N. Y. 406 ; Wood v. Fisk, 63 Ib. 245 ; D. L. & W. R. R. Co. v. Burkhard, 36 Hun, 57).
    II. It is not a sufficient consent in law, when a person goes to a guarantor and asks him if he “ would ” continue a guaranty for two years, to make it a binding contract between the parties extending the payment of the debt for two years, when the grantor simply says “yes.” This conversation at most only amounted to a consent on Eisner’s part that he would be willing to make a new agreement giving further time for the payment of the mortgage, and being an agreement to do something in the future was void for uncertainty (Buckmaster v. Consumers’ Ice Co., 5 Daly, 313 ; Holtz v. Schmidt, 59 N. Y. 256). That this is not a sufficient conversation upon which an action can arise, see Brown v. N. Y. Central R. R. (44 N. Y. 83); Holtz v. Schmidt (supra), see also, Ridgway v.
      Wharton (6 H. L. Cas. 268); Dietz v. Farish (79 N. Y. 523).
    III. If it should be held that there was a sufficient agreement made by Eisner to extend the guaranty for two years, it was void as being an agreement which by its terms was not to be performed within one year from the making thereof (2 R. S. 135, § 2). The alleged agreement to extend the guaranty for two years from April 15, 1875, by its very terms was to endure for a longer period than one year, and hence that this case does not come within Trustees v. B. H. Ins. Co. (19 N. Y. 305), and kindred authorities. The contract was void (1 Chitty on Cont. [Am. ed.] 101, note y; 1 Comyn Cont. 87; Wood on Frauds, 466 ; Broadwell v. Getman, 2 Den. 89).
   By the Court.

Sedg-wick, Ch. J.

In this case, defendant’s testator had guaranteed, in writing, the payment of a mortgage, which would fall due at the end of two years. This action was upon that guaranty. The defense was that the plaintiff had extended time for payment. This was sustained by the testimony. The plaintiff met this defense by showing that a few days before the extension, the brother of the plaintiff had a conversation with the testator, in which in answer to a question, the latter said he would guarantee for “ two years longer for these bonds.” This it is argued, was tantamount to a consent that the plaintiff might extend time of payment, and that this would leave the testator liable upon the guaranty on which the action was brought.

I am unable to agree with this view, There were definite words used which in themselves constituted a contract in form, but invalid, because it was verbal. The testator is not to be bound by an engagement, except it be positively proved that it was intended on his part. There was a presumption of law that he knew that the verbal arrangement he made, if he did make it, was not valid. There can be ho legal inference that he intended that a void promise by him, should be turned into an assent to an extension of the time to the principal debtor, and which substantially would make the void promise a valid contract. In substance the oral promise was a renewal of the guaranty.

For this reason, I am of opinion that the defendant should have judgment dismissing the complaint, with costs.

Truax and O’Gorman, JJ., concurred.


text:
    ROSE TOUSEY, Respondent, v. LEWIS ROBERTS, Appellant.

      Negligence—Apartment houses—Elevators.

    The owner of an apartment house owes a specific duty to the inmates thereof, to provide safe arrangements for the use of the passenger elevators therein.
    Accordingly, where plaintiff, an inmate of an apartment house, suffered injuries through tiie negligence of a boy apparently in charge of the elevator, it appearing that said boy had theretofore been seen about the house, and also in apparent charge of the elevator, though he had not been employed by defendant (the owner) in any capacity,—Meld, proper to leave it to the jury to say whether there was a want of a reasonable degree of supervision of the premises by the defendant, which might have prevented the presence of the boy on the occasion, and of his conduct which caused the accident.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Decided July 2, 1886.
    Appeal by defendant from judgment for plaintiff entered upon verdict of jury.
    The facts appear in the opinion.

      John L. Logan, for appellant.

      William H. Townley, for respondent.
   By the Court.

Sedgwick, Ch. J.

The defendant was the owner of an apartment house, in which was placed for the use of his tenants, an elevator. The plaintiff was the wife of one of those tenants who had leased an apartment on the fourth floor. On the occasion in question, in May, between 6 and 7 o’clock in the afternoon, she entered the street door and approached the elevator. She then saw a boy, who, as she approached, opened the door of the elevator. The platform- had in fact passed up. She supposing that it was proper for her to proceed stepped through the door and fell six feet, The action is for damages for the hurt she then received.

The objection made to the recovery that she was guilty of negligence, is without substance. . The jury had a right to find, as they did, that under the circumstances in evidence, she acted as a person of ordinary prudence.

The only other objection was that no negligence of defendant was shown. This is placed on the ground that under the testimony the boy who opened the door had not been employed by the defendant for that or any other service. The plaintiff testified that the boy had opened the door several times for her on former occasions, and there was testimony that he had been about the house.

In Althorf v. Wolfe (22 N. Y. 355), Judge Denio said, “ The defendant had the control of his own house and premises, and was generally responsible for their conduct and management, and was bound to see that his necessary affairs, to be carried on in and about them, were so conducted that other persons should not receive injury.” The present defendant owed a duty of this kind, specifically to the plaintiff, as an inmate of his house for whom he was bound to provide a safe arrangement for the use of the elevator. The judge, therefore, left it properly to the jury to say whether the facts showed a want of a reasonable degree of supervision of the premises, which might have prevented the presence of the boy on the occasion, and of his conduct which caused the accident.

Judgment affirmed, with costs.

Truax and O’Gorman, JJ., concurred.


author: Sedgwioic, Ch. J.

text:
    JAMES McCREERY, et al., Respondents, v. WILLIAM F. DUNCAN, Appellant.
    Evidence, res gestae, entries in boolcs, independent recollectionof.—Delivery, sufficiency of evidence of.—Application of payment, presumption of— meeting of minds, principle of satisfied.— Verdict not excessive.—Complaint, averment of performance of condition sufficient.

    In an action on a guarantee of the payment of a certain amount, viz., $350, of a third party’s bill for costumes, on condition of delivery of the full bill on receipt of the guarantee, the court held as follows:—•
    Conversation's between the third party and the vendor in the absence of the guarantor, are competent to prove a verbal direction as to the place where delivery should be made. '
    The question to a witness who received moneys, kept the books, made the entries, and knew the correctness of the amount credited, “ tell us what the amounts were and the dates,” calls only for the witness’ memory of the actual facts.
    Circumstantial evidence, and as part of it, the conduct of, and payment by the vendee, is sufficient evidence of the delivery.
    Various articles were sold on different dates, the costumes being the last, and the vendee did not apply the money paid, leaving the vendor at liberty to make the application; it is presumptive, therefore, that such application was not made so as to destroy the benefit the vendor held in the guarantor’s promise.
    Where there is no mistake as to the actual words of a written instrument, and the party to whom it is given parts with value on the faith of its true legal construction, in conformity with its provision, the legal requirement that the minds of the parties to a contract must meet, is satisfied.
    The whole bill after delivery of the costumes, was $1,143. - Of this, $550 was for the costumes, $535 paid by the vendee was properly applied on the articles other than the costumes, leaving $608 due, $350 of which defendant guaranteed, at which sum the damages were assessed. Held, not excessive, though at the time of the guarantee the bill was but $743, as the excess of the total bill was for the costumes only.
    An averment that plaintiff on receipt of the guarantee, sold and delivered to the third party certain goods of the value of (specifying the value), is sufficient as an averment of performance of the condition.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Decided July 2, 1886.

      Appeal by defendant from judgment entered upon verdict for plaintiff, as directed by the court, and from order denying motion for new trial made upon the minutes.

      Edward F. O’Dwyer, attorney and of counsel for appellant,
    argued :—I. There is no allegation in the plaintiffs’ complaint that they delivered the full bill of goods, and it is submitted that in this particular the complaint is fatally defective and defendant’s motion to dismiss was proper and should have been granted (Nelson v. Bostwick, 5 Hill, 37 ; Douglass v. Rathbone, 5 Ib. 143 ; Tooker v. Arnoux, 76 N. Y. 397 ; Abbott’s Trial Ev. 474, §8).
    II. It was error to allow the witness Julia A. Wells to testify to conversations had with Miss Livingston in the absence of the defendant, and defendant properly excepted to the ruling permitting such testimony. The witness Paul testified to the contents of the books of the plaintiffs from a memorandum he had made ; the books could have been produced by the plaintiffs but were not; Paul testified that all his knowledge was derived from an examination of plaintiffs’ books, and against defendant’s objection that such testimony was incompetent, the court below allowed the witness to continue. The plaintiffs had possession of their books and were bound to produce them when suing a defendant who could not by any possibility have knowledge of the account they sought to bind him by.
    TIT Defendant’s letter of guaranty expressly stipulates that he will be responsible for $350 of Miss Living-. ston’s bill for costumes, provided the whole bill of goods is delivered. There is a distinction between costumes and dresses. Miss Livingston was an actress and required costumes in her business, and it clearly was the intention of the defendant to be answerable only for such costumes, the delivery of the balance of the goods being the condition of the guaranty. Dresses were not included in his liability. If this is the fact, then Miss Livingston hav: ing paid $535, and the costumes costing $550, the greatest amount under the plaintiff’s version of the guaranty that could be recovered would be $15 (Hayden v. Crane, 1 Lans. 181).
    IY. The defendant testified that at the' time of making the letter of guaranty he said he would see that Miss Livingston paid $350, and in pursuance of that statement wrote the letter of guaranty. “I gave it and meant to see that Miss Livingston would pay the bill to the extent of $350.” It is clear from this testimony that the minds of the parties never met and it was the province of the jury to say whether a contract had been made (Greenleaf Ev. § 49, pp. 69, 355).
    Y. It was an error to refuse to Set aside the verdict and grant a new trial. The amount of the verdict was excessive; from plaintiff’s testimony it appears that at the time the guaranty was given, the amount of the bill was $143 ; that $535 has been paid on account, thus leaving a balance due of $208. It cannot be contended, under the numerous decisions to the contrary, that the deféndant is liable for additions to the bill after the giving of the guaranty.

      Theodore F. Lozier., attorney and of counsel for respondents.
   By the Court.

Sedgwioic, Ch. J.

The action was upon the following instrument made by the defendant:

“Hew York, Oct. 18, 1883.
“Messrs. McCreery &Co., Gentlemen :—I will become responsible for $350 of Miss Flora Livingston’s bill of costumes, provided that you deliver to her on receipt of this letter, the full bill of goods. Bespectfully, yours, Wm. F. Duncan.”

On the trial it was assumed that the full bill of goods mentioned in the instrument, referred to costumes and other goods, which were to be sold at one time by the plaintiff to Miss Livingston.

. The merits of the case appear to be with the plaintiff, but certain legal questions made by defendant are to be considered.

There was no legal objection to the plaintiff’s giving in evidence the conversation of Miss Livingston in the absence of the defendant. That conversation was part of the contract of sale and delivery, which was referred to in the instrument on which the action was brought. And it was competent to prove at what place Miss Livingston verbally directed that the goods should be delivered. A delivery in pursuance of that direction would be a delivery to her.

There was no legal objection to the witness, Paul, giving a part of the contents of books that he kept for the plaintiffs, without producing the books. The defendant made no objection on that ground. That witness also knew the correctness of the amount of money credited to Miss Livingston, as entered in the book. He did not remember the dates, but he kept the book and himself made the entries. Indeed, the only question on this subject objected to by defendant’s counsel, called only for the witness’ 'memory of the actual facts.

The defendant’s counsel objected that there was no proof of the delivery to Miss Livingston of the goods sold to her. The circumstantial evidence, and as a part of it, Miss Livingston’s conduct and payments, were so significant that it would have been incorrect not to take this question from the jury, and the defendant did not ask to go to the jury on this part of the issue.

It was further objected that the testimony incontrovertibly showed that Miss Livingston had paid §535 of the bill charging for costumes §550, and that thereupon, the defendant could not be made liable for more than §15. The evidence seems to have been contrary to this. The various articles sold were ordered on different dates, the costumes being ordered the last of all. Miss Livingston did not apply the money she paid to any particular portion of the indebtedness, which left the plaintiffs at liberty to make the application, which presumably was not made to destroy the benefit they held in defendant’s promise.

The defendant’s counsel objected that defendant’s mind had not met the minds of plaintiffs on the point of whether his obligation was to be responsible that Miss Livingston should pay upon her bill $350 ; or to pay abalance of that amount, she having paid the rest. It is not objected that the law puts the latter construction upon the defendant’s agreement. He made no mistake as to the actual words of the agreement. He delivered it to the plaintiffs who, on the faith of its true construction, parted with their property. He is, therefore, liable according to its true construction.

A motion was made to set aside the verdict as excessive. This was placed upon the claim that thé amount of the bill at the time the writing was signed, was but $743, and that $535 having been paid on account, only $208 was due. This ground is not made good by the testimony, for by it the amount beyond $743, was for the only costumes ordered and the defendant was responsible only for what might be due for costumes.

The remaining exception to be noticed is to the refusal to direct judgment for the defendant on the complaint, the motion being made before any testimony was given. The claim was that the complaint did not show any cause of action. It was said to be defective, in not setting out the performance of the condition on which, according to the instrument, the defendant was to be responsible. The condition in the writing was 1 ‘ provided that you deliver to her on receipt of this letter, the full bill of goods.” The complaint averred “that the plaintiff thereupon on receipt of said promise of the defendant, &c., sold and delivered to said Flora Livingston, certain goods, &c., of the value, &c.” This would be sufficient, if there is a reasonable intendment in the complaint that the delivery was of all the goods sold. There is such an intendment. An assertion that on an occasion certain goods were sold, implies that that fully describes all the goods that were sold, when nothing preceding the assertion indicates a purpose of limiting the assertion to part of the goods.

The judgment and order appealed from should be affirmed, with costs.

Truax and O’Gorman, JJ., concurred.


text:
    ALMA E. SPALDING v. HENRY H. CARGILL.

      Promissory note—consideration for—delivery of.

    Defendant and plaintiff’s husband were partners. Plaintiff’s husband on defendant’s request that he should put in more money, brought to defendant two drafts, and handing them to him told him the moneys they represented were moneys of his wife, and that he wanted some acknowledgment that the money had come into the hands of the defendant. Defendant thereupon made his promissory note for the amount of the drafts, payable to the order of the plaintiff, and gave them to plaintiff’s husband. The two drafts were collected by defendant.

      Held, there was sufficient consideration for the notes, and that there was a delivery of them.
    This result is not altered by the circumstances that plaintiff’s husband had not contributed his share to the capital of the business to the amount of the drafts, that the collections from the drafts were credited to plaintiff’s husband, and applied to the purposes of the business, that defendant when he accepted and collected the drafts, did so in the faith of his understanding that the moneys were advanced by plaintiff to her husband, and on his credit for use in the business, and not in any sense as loaned upon defendant’s credit or his benefit, and that the husband assured him that he himself would pay his wife.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Decided July 2, 1886.
    Exceptions of defendant directed by the court to be heard in the first instance at general term.
    The facts appear in the opinion.

      John Toiunshend, attorney and of counsel for plaintiff.

      T. M. Tyng, attorney and of counsel for defendant.
   By the Court.

Sedgwick, Ch. J.

The action was against the defendant as maker of the promissory notes payable to plaintiff on which the action was brought. The judge ordered that the exceptions of the defendant to the direction to the jury to find for the plaintiff, etc., be heard in first instance at the general term.

The counsel for defendant places his right to go to the jury, on an argument that the jury might have found that the following were facts : The husband of the plaintiff and the defendant were partners in business. They were bound to contribute equally to the capital of the business. The defendant having contributed much more than the plaintiff’s husband, required of the latter that he should put in further money. The plaintiff’s husband brought to the defendant $600. The defendant took the money, credited his partner with it, and applied it to the purposes of the business. Within two days thereafter, the defendant gave to the husband of plaintiff $100 for her use, and within two days again, the husband brought the notes in suit, asking the defendant to sign them. The defendant at first refused, but did sign them, upon the husband saying that he only wanted them to show his wife, as evidence that he had put money in, and that the defendant should never hear from them.

Some averments of the answer should be given in connection with this statement of ■ facts. ■ The answer shows that what the defendant called the money, was in fact two drafts of $300 each, which the husband handed to the defendant and which the defendant collected ; also the husband, at the time he handed the drafts to the defendant, told him that the moneys represented by the drafts were the moneys of his wife, and that he wanted to furnish his wife with some acknowledgment that the money had come into the hands of the defendant, and thereupon the notes were made.

The true rendering of these circumstances is, that- the wife furnished money to her husband to be by him inyested in the business, provided that the defendant would promise and give his note to pay her the money she advanced to her husband, which he did, the husband assuring him at the time that he would never be called to pay the notes, as he, the husband, would himself pay the wife. The defendant says that when he accepted from the husband the drafts and collected them, he did so upon the faith of his understanding that they were the moneys of the plaintiff, advanced by her to her husband, and on his credit, for use in the business, and not in any sense as money loaned upon defendant’s credit, or for his benefit. Whatever may have been his understanding and faith, the fact was that he made the promise to the wife as the kind of acknowledgment that she required. If he had not promised, the husband, it must be presumed, would have returned the drafts to his wife. It was for the personal interest of the defendant that the money should go into the business. The money was' as truly advanced to him as it was to the husband, when it was advanced tó the latter on condition that the defendant should acknowledge its receipt, he voluntarily putting that acknowledgment in the form of a, promissory note to the plaintiff. The placing of the money in the firm’s business was so beneficial to the defendant, that it would be a consideration for his individual promise to repay ; or the parting of the plaintiff with her money on condition that the defendant should give his promissory note, was consideration.

The first request made was to go to the jury, on the question whether the notes in suit were ever delivered to the plaintiff by the defendant, so as to take effect against him. This was correctly refused, because if there were consideration, the notes were delivered to the plaintiff’s husband for the plaintiff.

The next request concerned the question as-to whether the notes were founded upon any valuable consideration moving from her. The facts in the case show that there was such a consideration.

The last request was to go to the jury on the question whether the notes had not been paid. The answer did not set up a payment to the plaintiff.

The defendant did not request to go to the jury, on any other issue.

The exceptions of defendant are overruled, the motion for a new trial denied, and judgment for plaintiff on the verdict ordered, with costs.

Truax and O’Gorman, JJ., concurred.


author: Truax, J. Sedgwick, Oh. J.

text:
    FRANCIS A. BASSLER, Appellant, v. WILLIAM B. PUTNEY, as Assignee, &c. Impleaded, &c., Respondent.

      Municipal Lien Law, chapter 315, Laws 1878, Consolidation Act of 1882, § 1824 et seq., chapter 429, Laws of 1881, Consolidation Act, § 1838, requisites to lien under.—Judgment against one defendant in favor of his co-defendant, when plaintiff not aggrieved by.

    Under section 1838 of the Consolidation Act, it is essential that the work or materials for which a lien is claimed, shall be work done, or materials furnished for work, on lands, the title of which was in the city at the time of the making of the contract, under which the work was done or the materials furnished.
    It is essential that the city should have made an appropriation in respect of the very contract, for work or materials furnished under which the lien is claimed, for the performance thereof (Per Sedgwick, Oh. J.).
    When a plaintiff brings an action to foreclose a statutory lien on funds in the hands of one, against whom he has no claim outside of such a lien, against that party and one who also claimed a lien on the same fund, and the complaint in his action is dismissed on the ground that he has no lien, he is not aggrieved by a judgment against the one holding the fund in favor of his co-defendant for the amount of the fund; for if in fact he had a lien such judgment would not prevent its being finally enforced.
    Before Sedgwick, ' Oh. J., and Truax, J.

      Decided July 2, 1886.

      Appeal from a judgment of the special term dismissing the complaint and granting judgment in favor of the above named defendant against his co-defendants, the Mayor, &c., for the amount admitted to be due under a contract entered into by one French and the city.
    The action was commenced by the plaintiff to foreclose a hen filed under the municipal hen act, against the moneys due under said contract.
    On May 16, 1884, one Samuel G. French entered into a contract with the board of education in this city to furnish a quantity of coal. Eight days after the date of the contract, French assigned to the firm of Joseph K. Wells & Co., whose assignee the defendant Putney is, all moneys due or to grow due under the contract, in consideration of their furnishing French with the coal necessary to carry out the contract. This assignment was not filed in the comptroller’s office until nearly a year later. The firm of Joseph K. Wells & -,Co. continued to furnish coal under this agreement with French up to September, 1884, when the said firm failed and made a general assignment to the defendant, William B. Putney. Thereafter, during the month of March, 1885, the plaintiff sold to the said French coal which was used in the performance of this contract with the board of education, amounting to $2,577.73, and thereafter on April 13, 1885, French assigned to the plaintiff all the moneys due or to grow due on said contract. This assignment was filed in the comptroller’s office, April 14, 1885. The assignment to the firm of Joseph K. Wells & Co. was not filed in the comptroller’s office until sometime afterwards. The plaintiff was ignorant of the assignment to Wells & Go. at the time that he took the assignment of the contract to him. The contract of French with the board of education was fully performed by the delivery of the coal received from the plaintiff, and, at the time of the commencement of the action, there was due under the contract the sum of $2,395.46, which money the defendants, the Mayor, &c., had in their possession. The plaintiff, claiming a lien on said moneys under the municipal lien act, filed within the proper time, proper notices of lien with the comptroller and the board of education, and thereafter brought this action to foreclose this lien.

      John C. Shaw, attorney and of counsel for appellant,
    on the questions considered_in the opinion, argued:— I. The defendant claimed that the amendment to chapter 315 of laws of 1818 (and his claim was sustained by the court) does not' include a contract of the character set forth in this case. The defendant’s contention rests upon the idea that the amendment of 1881 (§ 1838, Consolidation Act) relates solely to contracts for work or materials done and furnished “uponany land, the title of which was at the time of the making of the contract and now is in any city.” This is a mistake. It fails to give proper effect to the remaining clause of the sentence which reads as follows : “And for the performance of which appropriations have been, or shall hereafter be made and raised by any city.” It ignores the history of the act, the difficulties which had arisen under the original act, the mischiefs which existed, and the remedy which was needed. It is perfectly elear that the substitution of the disjunctive “ or,” for the copulative “ and,” between the two clauses of the sentence, would put the meaning of the act beyond all question. The same criticism which the defendant’s counsel indulges in would equally preclude one who had only done work, or one who had only furnished materials, from the benefits of the amendment. The amendment reads, that it shall .apply to contracts under which “work and materials,” not “work or materials ” have or shall be done and furnished, not “done or furnished.” The authorities are abundant that the courts will read “or” for “and,” or “and” for “or” in the interpretation of statute—:that they are convertible terms (Sedgwick Construction Statutory Laws [2 ed.] 371, note). A fair reading of the statute as it stands, leads to the same result. It is quite correct to say that the draftsman of the act intended to provide for two classes of contracts : First.—The contracts for work done and materials furnished upon any land, the title to which is in any city : Second.—Contracts for the performance of which appropriations have been or shall be made by any city. If this was the double idea which the draftsman intended to conr vey, then it was most natural to use the conjunction “ and ” in the connection in which it was used. Numerous decisions having been made under the original act to the effect that contracts made with a department of the city government, or with an independent body though a part of the system of the municipal government, were not within its language, the mischief thus discovered was attempted to be remedied by the amendment in question ; it was unjust to protect those who furnished work or materials to contractors with some- departments and not the others ; and the legislature, in obedience to this principle of natural right and justice, passed the Act of 1881.. Yet it is claimed that the legislature having before it the defects of the original act, sought to remedy it only where the work and materials were done and furnished upon the land of the city, and left all the other contracts, by far the larger number, still unprovided for. This strange and unnatural argument is made in spite of the fact that the original act related to all classes of contracts with any incorporated city, and was not limited to contracts to erect buildings on city land. The municipal hen act differs in this respect from the old mechanics’ lien law, which relates solely to property and liens on property. The municipal lien law relates solely to contracts, and gives a lien on the money due or to grow due on such contracts. The argument thus made, changes the entire scheme of the act by limiting the force of the amendment to a special class of contracts, instead of all classes of contracts, as was provided in the original act. The natural reading of the amendment should be as broad and liberal in its provisions as the original act. The only object and purpose of the amendment was to include contracts covered by the spirit of the original act, though not by its letter, whenever, in fact, the same weie made for the benefit of the city, or the city was to pay the expenses incurred under the contract made, by any agency whatever. This is the universal rule of construction of remedial statutes which have been passed to meet specific mischief, and this principle has even been extended by the courts to penal statutes (People v. Commissioners, etc., 95 N. Y. 554; Tonnele v. Hall, 4 Ib. 140 ; Dibble v. Hathaway, 11 Hun, 571 ; Matter O’Neil, 91 N. Y. 516 ;. Engel v. Fischer, 15 Abb. N. C. 72 ; Matter of Parade Ground, MSS. Opin. Daniels, J.; Lake Shore R. R. v. Roach, 80 N. Y. 339). Another reason which should be conclusive on the construction contended for by the plaintiff, is that the construction put upon it by the court below would not include contracts for work and materials' done on land of the city where appropriations were not made for the performance of the contract. Those, for instance with the dock department and the aqueduct commission. On the other hand, they come within its provisions if the plaintiff’s theory of the act as amended, be adopted. The work being done, or the materials being furnished, upon the city’s land, entitles the workman or the material-man to his lien, and in all other cases where the city makes appropriations for the performance of the contract, he is likewise entitled to his lien. The one construction produces chaos, and the other harmony. Further cases in favor of plaintiff’s contention, are, Williams v. Pritchard (5 T. R. 3); Bell v. Vanderbilt (67 How. 332); Engel v. Fischer (15 Abb. N. C. 73); Dibble v. Hathaway (11 Hun, 574) ; People ex rel. Com’r of Taxes (95 N. Y. 558); Matter of O’Neil, (91 N. Y. 520).
    II. The refusal of the judge to find that the city had made sufficient appropriation of money for the purpose of paying for the coal delivered under the contract in question, was error. The fourth proposed finding of the plaintiff to this effect was based upon the defendant’s own admission in the answer. The complaint in the second paragraph contained an allegation in these words, and the defendant' in his answer, in the second paragraph, expressly admitted all the allegations contained in the second paragraph of the complaint. This refusal to find a conceded fact is a ruling on a question of law (Code Civ. Pro. § 993 ; Fleischman v. Stern, 90 N. Y. 110). The learned judge, in his opinion, placed one ground of his decision upon the ground that there was no evidence that the city made or raised any appropriation for the performance of this contract. In view of the express admission in the answer, this statement is clearly inaccurate.
    III. The defendant Putney was not entitled to an affirmative judgment against the Mayor, &c. The judgment deprived the plaintiff of the opportunity of bringing an action to recover the fund on the ground of his supe-rior equities.

      James L. Bishop, attorney and of counsel for respondent,
    on the questions contained in the opinion, argued :— Plaintiff has acquired no lien under section 1838. Two: things must concur to give a lien : 1st. There must be a contract under which work and material have been done, and furnished upon land the title to which is in the city ; and, 2d. For the performance of such contract there must have been an appropriation made and raised by the city.\ There is no reason for saying that this statute was intended to give a lien in each of these cases separately.' The statute usés the word “and.” There is no reason for saying that this “and” means “or.” On the contrary, the reason of the statute requires that both these things should concur. When the improvement is made on city land the city ultimately pays for it, there is sense and reason for giving a lien on the contract moneys, no matter who makes the contract, and that would be a natural provision to insert in a statute which, as the statute o£ 1878, was intended “to secure laborers.” The plain purpose of the statute was to extend the operation of the Act of 1878, which was intended to secure laborers and others for public work in the cities of the state, so that when the work was really done for the benefit of the city, upon city land and with city funds, although the contract was made with a public officer or body which was not the representative or agent of the city, a lien should exist. The whole point of the statute is that the improvement should be on city land to be paid for practically by the city. It is the two things combined which create the equity of the statute. Neither of the two things required by the statute have been shown to exist in this case. The plaintiff claims that, with reference to the appropriation, the pleadings admit all that the statute requires. We say that is not the fact. The complaint alleges that “ the said defendants, the Mayor, &c., have duly made sufficient appropriation of money for the purpose of paying for the coal so delivered under and in pursuance and performance of said contract.” The answer admits simply that averment and nothing more. But the appropriation pleaded is not the appropriation referred to in the statute. The statute clearly refers to the case of an appropriation for a specific contract. The complaiiit avers a.general appropriation. Now, the statutory method of making appropriations of city money for the board of education is to make a general appropriation for school purposes indiscriminately. The board of education makes the specific appropriations (§§ 189, 1027, et seq., Cons. Act). Again, the averment of the complaint and admission of the answer are not sufficient to base a claim of lien, because there is no averment that the appropriations have been raised by the city. The city has the money but there is no averment or presumption that it was raised by the city. On the contrary, the board of education is a part and parcel of the state government. The state has. a common school fund, the revenues of which by art. 9 of the Constitution must be applied to the support of the common schools, and these revenues are by 1 R. S. p. 196, directed to be distributed among others, to the city of New York, to be paid to the city chamberlain. So that by public law the school moneys in the hands of the city are not wholly raised by the city, and the fact that the city appropriates such moneys cannot create any presumption that the moneys were raised by the city, because that would be a presumption against the general law of the State. The Consolidation Act provides (§ 1028, subd. 5), among the duties of the board of education, that they shall report the moneys drawn from the city chamberlain for the purpose of public education—“ distinguishing the amount received from the general fund of the state,- and from all other and what sources.”
    II. The plaintiff has no standing to complain of this portion of the judgment directing a recovery against the city, or of the order upon which the judgment was given. The plaintiff is not a party aggrieved by this provision of the judgment, or by the order, and, therefore, cannot appeal (Code, § 1294; Cuyler v. Moreland, 6 Paige, 213 ; Genet v. Davenport, 60 N. Y. 194). It having been determined that plaintiff has no interest in the fund, it can make no difference to him to whom it is paid: Neither the defendant, the Mayor, nor the defendant, French, have appealed from this judgment.
   Truax, J.

It was not the intention of the legislature to give every person who had a contract with, or who furnished materials to every person who had a contract with the city, a lien. Sections 1824 and 1825 of chapter 410, Laws of 1882, provide that persons therein mentioned may have a lien, on filing a notice with the head of the department or bureau having charge of the work to be performed by the contractor with the city, at any time before the whole of said work is completed or accepted by the city, and within thirty days after the same is so completed or accepted. . These sections give a lien only when there is work to be performed; they give a lien for materials only when the materials are furnished towards the performance or completion of a contract for work. And section 1838 of the said act contemplates that this work shall be done upon, and the materials shall be furnished for work that has been done upon lands the title of which was at the time of the making of the contract, in the city. The act contemplates that the materials shall be furnished in the improvement of the city’s property.

The judgment should be affirmed, because the act does not give a hen to the plaintiff. If this view is correct the plaintiff was not aggrieved by the disposition that was made by the trial judge of the money in the city’s possession.

Judgment affirmed with costs.

Sedgwick, Oh. J.

(Concurring).—If the plaintiff or the assignee for creditors, be assignee of the money due under the contract of French with the board of education, the city of New York is not generally liable, and the board of education has not been made a defendant.

The only claim made for the plaintiff in this action is under section 1838, chapter 410 of the Laws of 1882. The claim is that the city is in possession of the fund which represents the money due upon the contract, and that the plaintiff has a lien upon this fund, under the statute.

The section reads, “ This act shall apply to and include all cases and contracts under which work and materials have heretofore been, or shall hereafter be done and furnished, upon any land, the title of which was, at the time of the making of the contract, and now is, in any city, and for the performance of which appropriations have been made or shall hereafter be made and raised by any city.”

The decision of this appeal will be limited to the construction of this section, although, no doubt, there are other important questions in the case.

The section presents difficulties. I am of the opinion that the learned judge below had the true view, which is that the act was to apply when two conditions concurred, the one, that work and material were done and furnished upon land, the title of which was in the city; and the other, that the city had appropriated money for the performance of the contract. In the general legislation in respect of contracts with the city, there was no more common or important limitation than that contracts should be paid out of appropriations made in respect of such contracts. It would be a reversal of the previous policy on the subject not to provide for satisfaction out of appropriation, and almost useless to provide for a lien on account of money due upon a contract to improve land, unless there should be some fund for the payment of the contract, which would most generally arise from an appropriation. The second condition referred to would be naturally attached to the first, upon the first being expressed, and in accordance with the policy that has been noticed. If it were not intended that there should be a double condition, the second would be sufficiently comprehensive without mention of the first, unless the legislative intent was to provide for a lien in all cases where contracts for improvement of the land of the city had been made. Few such contracts are made unless contemporaneously with the appropriation of money for their payment. It is a maxim of construction to deem ihat general clauses are made for things that the more frequently occur. It cannot be successfully contended that in this case work or material were furnished upon land. In that part of the appeal that concerns the judgment given in favor of the respondent against the city, it must be held that the appellant is not aggrieved by it. For, if in fact, the appellant had a lien, the present judgment would not prevent its being finally enforced.

Judgment is affirmed, with costs.


author: Truax, J.

text:
    CHARLES B. GUMB, Respondent, v. THE TWENTY-THIRD STREET RAILWAY CO., Appellant,

      Street railways.—Negligence.—Exception to refusals to charge.

    A street railroad company having a right to drive its cars over the track, and being confined thereto, other people are bound to keep the track clear, as far as they can, and the railroad company is not liable for an accident causing damage to another, provided it exercised the care and caution that ordinarily prudent persons would exercise under like circumstances.
    Smedis v. B. & R. B. R. R. Co. (88 N. Y. 13), &c., followed as to necessity of specific exceptions to refusal of requests to charge.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Decided July 2, 1886.
    Appeal by defendant from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying defeiidant’s motion for a new trial.
    The action was brought to recover for damages alleged to have been sustained by the plaintiff through the negligence of the defendant. The plaintiff was injured by a collision with one óf the defendant’s cars while he was on a wagon which was in the track of the Sixth Avenue Railway Co., at its intersection with defendant’s railroad at Twenty-third street in this city. The jury rendered a verdict in the plaintiff’s favor for $500.

      Robinson, Scribner & Bright, for the appellant.

      I~I. B-. Olosson, for the respondent.
   By the Court.

Truax, J.

The alleged errors consist in the court’s refusal to set aside the verdict on the ground that the damages were excessive, and to charge the following i*equests :

(1.) “The defendant owed the plaintiff no duty except that of ordinary care in the driving óf its car, and in this respect no greater care is required of the driver of a car than of the driver of an ordinary vehicle in the streets of the city.”

(2.) “'It was the plaintiff’s duty to take care not to impede or to interfere with the car, and in as much as the defendant’s cars are for the public use, their right to run upon the street at the particular time and place they are about to pass, is paramount to that of ordinary vehicles.”

(3.) “The driver of the defendant’s car had the right to proceed upon the assumption and belief that the plaintiff would not interfere with the car, and that he would take care to be out of its way in season to give the car a free and uninterrupted passage.”

(4.) “If any neglect or carelessness on the part of the plaintiff contributed in any degree to create the accident,' the verdict must be in favor of the defendant, even if the defendant’s driver may have been negligent.”

(5.) “ The burden of proof is upon the plaintiff to show, affirmatively that the accident complained of was occasioned solely by the defendant’s negligence, and that his own negligence, or his failure to exercise the care required by law, did not contribute in any manner in any degree to produce the collision.”

There were, also, it is alleged, errors in the admission of testimony.

The verdict was not excessive. The evidence is that the plaintiff suffered a great deal of pain, and that he was confined to his room five or six weeks ; besides, he was compelled to hire two men to whom he paid $135 to take his place, and his bill to the doctor w'as $35. He also paid $70 for repairing the wagon that was injured in the collision. These repairs form part of the injury or damage that the plaintiff sustained in the collision, and it was not error to admit evidence in reference to them.

The important questions in the case arise on the refusal to charge as requested. Three requests, the first, fourth and fifth, were charged in substance. This is all that the law requires. The court charged that the defendant was not liable provided its driver exercised the care and caution that ordinarily prudent persons exercise under like circumstances. That is in substance saying, that no more care and caution was required of the defendant’s driver than is required from the driver of . an ordinary vehicle in the streets of the city. All that the court required of the defendant’s driver was ordinary care. The court also charged that the negligence of the car driver must be the sole cause of the accident, and if any negligence of the plaintiff, no matter how slight, contributed to the result, he could not recover. The jury were also told that the plaintiff must establish these facts by a fair preponderance of the evidence in order to entitle him to recover ; and that if he failed to satisfy them by a fair preponderance of the evidence on these points, he could not recover. This charge was as favorable to the defendant as he was entitled to.

The appellant contends that the trial judge erred in failing to recognize the principle that the right of a car for the carriage of passengers is superior to that of ordinary vehicles. This point was raised by the failure o°f the court to charge the second and third requests. The trial judge did charge, however, that the railroad company had a right to drive its cars over the track, and, because it was confined to the track, other people were bound to keep the track clear as far as they could, and the railroad company was not liable for the accident, provided it exercised the care and caution that ordinarily prudent persons would exercise under like circumstances. This was all that the defendant was entitled to.

The rule contended for by the defendant would absolve one of its drivers from exercising any care or caution in a case like the one now before us. It means, no matter what the position of the person on the track is, the driver has a right to assume that he will get out of the way of the car, and to run over him if he does not get out of the way. That is not the law of this state. Everybody knows that a car is confined to the track, and for that reason the degree of care and caution to be used by a person while on or crossing a track is increased over that to be used while crossing a street in which there is no track; that is, the degree of care and caution to be used is always to be measured by the danger likely to be encountered. But, while the law requires greater care and caution in a person crossing a track, it also requires the driver to use such care as, considering the circumstances, can reasonably be used (Hegan v. 8th Ave. R. R. Co., 15 N. Y. 380). He must proceed at a reasonable and lawful rate of speed. He must not move at a rate of speed faster than that ordinarily reached by horses drawing loads of passengers (Adolph v. Central Park, &c. R. R, Co., 76 N. Y. 530). He must not proceed when it is obvious that his doing so will result in an accident (Cohen v. Dry Dock, &c. R. R., 40 Super. CtZ. 368 ; affirmed, 69 N. Y. 170).

It is true that it was said in Adolph v. Central Park, &c. R. R. Co. (supra), that the railroad company has the exclusive right to any part of the track over which at the time its horses and car are passing or are just about to pass, and all others then upon it there are bound to leave it then and there to the unrestricted use of the company ; but this remark was made in reference to a driver of a wagon on the track ahead of the car and who did not get off the track when told to do so. It means that the driver of the wagon had no- right to stay on the track and thus prevent the car that was behind him from passing.

We have considered the questions that arise upon these exceptions taken to the refusal to charge as though there had been a valid exception to the refusal, although, in fact, there is no such exception. The exception is in these words, and is at the close of the case : I except specifically to the omission and .refusal to charge each of the other requests presented.” It has frequently been held that that is not a valid exception (Hoyt v. Long Island R. R. Co., 57 N. Y. 678 ; Ayrault v. Pacific Bank, 47 Ib. 570 ; Smedis v. B. & R. B. R. R. Co., 88 Ib 13).

Judgment and order appealed from are affirmed, with costs.

Sedgwioic, Ch. J., and O’Gorman, J., concurred.


text:
    CAYETANO SORIA, Respondent, v. ALEXANDER V. DAVIDSON, Sheriff, &c., Appellant.

      Trial—requests, to charge, refusal not error.— Contract, nature of, as a consignment for sale on commission, or an absolute sale.

    When requests to charge matters of law are found on facts not conclusively proven, or when the requests are to charge facts not conclusively proven, it is not error to refuse the requests.
    Under an agreement whereby one is to consign goods to another, to be by the latter sold at any price he saw fit, he to remit to the former one the prices fixed for the goods at the time of shipment, but to remit only after sales made, and for the goods sold, the goods remain the property of the shipper until sold. Goods shipped under such an agreement are consigned for sale on a commission, equal to the difference between the price fixed and the price at which they are sold.
    Before Truax and O’Gorman, JJ.

      Decided July 2, 1886.
    Appeal from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial on the judge’s minutes on all the grounds stated in section 999 of the Code.
    The facts appear in the opinion.

      W. Bourhe Cochran, attorney and of counsel for appellants,
    on the questions considered in the opinion, argued: argued: I. The motion “to dismiss the complaint on the ground that the proof established, not an agency on the part of Hermanee, but an absolute sale to him, and that consequently the goods were liable to be seized by the sheriff under the warrant of attachment,” should have been granted and it was error to deny the motion (Luden v. Hazen, 31 Barb. 652; Bonesteel v. Flack, 41 Ib. 435 ; Develin v. O’Neill, 6 Daly, 305; Morse v. Wickham, 14 Johns. 67; Baker v. Woodruff, 2 N. Y. 153; Johnston v. Brown, 37 Iowa, 200; Herring v. Willard, 2 Sandf. 420).

      II. The delivery of the goods to Hermanee, under the agreement as testified to by plaintiff’s witness, was not a consignment. If the consignee is at liberty to sell the goods at any price he likes, and to receive payment for the goods at any time he Ekes, and is only bound, if he sells the goods, to pay the consignor for them at a fixed price and a fixed time, then, whatever the parties may think, their relation is not that of principal and agent, consignor and consignee, but the aUeged agent is making on his own account a purchase from his alleged principal, and is again reselEng (Blood v. Palmer, 2 Fairf. 414; Eldridge v. Benson, 7 Cush. 483 ; Meldrun v. Snow, 9 Peck, 441; Sutton v. Crosby, 54 Barb. 80; Walker v. Butterick, 105 Mass. 237 ; Benjamin on Sale, §§ 382-597). It was also claimed by the plaintiff that the contract between the plaintiff and defendant was a “ del credere ” commission, but this position cannot be maintained on the conceded facts. Hermanee did not guarantee the solvency of his customers (Morris v. Cleasly, 4 M. & S. 56).

      Henry L. Vilas, and Jacob Fromme, for respondent.
   By the Court.

Truax, J.

This action was brought to recover the possession of 64,400 cigars. The property was taken by the defendant, as sheriff, as the property of one Hermanee on an attachment against said Hermanee. The plaintiff claimed that the property taken was not the property of said Hermanee; that it was his, the plaintiff’s property, and had been consigned by him to the said Hermanee for sale.

The- trial judge in a charge, to which there were no exceptions, left it to the jury to determine in whom the title to the cigars was; and the jury by their verdict determined that it was in the plaintiff. There was evidence to support this finding, and it wifi not be disturbed unless there is error in the refusal of the court to charge as requested by the defendant, or unless there is error in the court’s refusal to dismiss the complaint. The refusal to dismiss, and the refusals to charge as requested present the same points of law.

. The learned counsel for the defendant, at the close of plaintiff’s case, moved to dismiss the complaint on the ground that the proof established not an agency on the part of Hermanee, but an absolute sale to him, and that consequently the goods were liable to be seized by the sheriff under a warrant of attachment against Hermanee. This motion was denied and the defendant duly excepted. He also, at the close of the case, requested the court to charge that if Hermanee to whom the goods were consigned was at liberty to sell them at any price he liked, and received payment at anytime he liked, and was only bound, if he sold the goods, to pay the consignor for them at a fixed price at a fixed time, then, whatever the parties may have intended, their relation is not that of principal and agent, consignor and commission merchant, but the alleged agent is making on his own account, a purchase from his alleged principal, and is again re-selling.

He also requested the court to charge that when a person is at liberty to sell goods sent to him at any price he likes, and receive payment at any time, he to pay the consignor for them at a price fixed beforehand, it is a sale ; but if there be a right to return, then it is known as a sale or return.

He also requested the court to charge that in all cases of sale or return, the property vests in the purchaser from delivery, with the right to divest himself by a return, but until such return, or an attempt to return the property, the title is in the person to whom sent.

He also requested the court to charge that having sent the invoices and bills of lading to Hermanee without reservation, the property passed, and Soria lost all rights save stoppage in transitu, and when goods came into Hermance’s possession, and they all came into his possession, then the right of stoppage in transitu was at an end.

The court refused to charge each one of these requests and to each refusal the defendant duly excepted.

It was not error to refuse to charge the last request, because the evidence does not conclusively show that the plaintiff had sent the invoices and bills of lading to Hermanee without reservation.

It was not error to refuse to charge the next to the last request, because it was not conclusively established by the evidence that this was a case of sale with a right to return the property.

Under the agreement between the plaintiff and Hermanee the latter was to sell the goods which plaintiff had consigned to him at any price he saw fit, but was to pay for them at a price fixed at the time of the consignment. By this agreement the property never became the property of the defendant. He simply was entitled to the possession of the property as the plaintiff’s agent until its sale. His commission for selling the property was the price he received for the property over the price fixed upon at the time of the consignment.

It was never intended in the transactions between the plaintiff and Hermanee that the cigars should ever become the property of Hermanee. The goods were sent to him “ to. be sold through ” him, and he was to remit the money for the cigars on the 1st and 15th of each month. But this arrangement did not contemplate a sale to Hermanee. He was to remit only after he had sold the cigars to some one. Until he had sold them plaintiff remained the real owner, and as the defendant was not a bona fide purchaser for value, he acquired no title to, or right of possession in the property by virtue of his levjunder the attachment against Hermanee (Cole v. Mann, 62 N. Y. 1). The only way that Hermanee could give good title to the property was by selling it. For this reason it was not error to deny the motion to dismiss, or to refuse to charge the first two requests (Moore v. Dykes, 37 Hun, 491 and cases there cited).

The damages allowed by the jury were not excessive. The plaintiff claimed in his complaint that the cigars were worth §3,237.40. The witness Hermanee placed the same value upon them. The court charged the jury that they were to find the value of the goods at the time of the taking. To this charge there was no exception. The jury found this value to be $3,090, and there is some evidence to sustain the finding. The questions as to the form of the verdict and the judgment were determined against defendant on the former appeal (page 52, ante).

The judgment and order appealed from are affirmed, with costs.

O’Gorman, J., concurred.