author: Yan Brunt, P. J.: Brady, J.:

text:
    ANNIE E. SMITH, Appellant, v. FLETCHER W. CAMP, as Administrator, with the Will Annexed of MARY ETTA CAMP, Deceased, Respondent.

      Acknowledgment of an indebtedness — to avoid the statute of limitations it must be one intended to be communicated to the creditor.

    An acknowledgment of an indebtedness, in order to prevent the running of the statute of limitations, must be one intended to be communicated to the creditor, or to influence his conduct, and a written memorandum made by the debtor, and kept in her possession up to the time of her death, and thereafter found among her papers by her executor, is not such an acknowledgment as will take the claim out of the statute.
    Appeal by the plaintiff Annie E. Smith from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 30th day of April, 1890, in favor of the plaintiff; and also from an order denying plaintiff’s motion for a new trial made upon the minutes of the court.
    The action was brought to recover the sum of $4,000, and was tried at the New York Circuit before the court and a.jury, and a Yerdict was rendered in favor of the plaintiff for $259.

      K II. Pomeroy, for the appellant.

      W. Mitchell, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover the sum of $4,000, 'with interest, being an amount alleged to have been loaned by the plaintiff to one Mary Etta Camp at various times prior to December 28, 1882. The complaint also alleged that on said December 28,1882, the said Mary Etta Camp acknowleged, in writing, that she owed the plaintiff the said $4,000 so loaned, and promised to pay the same, and signed said acknowledgment and promise.

Upon the trial it appeared that said Mary Etta Camp died in November, 1884, leaving a last will and testament, dated July 19, 1883, after the memorandum hereinafter mentioned. By said will James "W. Camp was appointed executor, to whom letters testamentary were duly issued upon the probate’of the will. The executor having died the defendant was duly appointed administrator with the will annexed. This action was originally commenced against the executor and after his death revived as against the administrator.

The answer denied the loan, acknowledgment and promise to pay and set up as a separate defense the statute of limitations, and the satisfaction of any claim by reason of said alleged loan by a legacy of $5,000, bequeathed to said plaintiff by said Mary Etta Camp in her last will and testament.

The plaintiff offered in evidence a certain memorandum book of the said Mary Etta Camp, in the possession of the defendant, in which appeared the following in lead pencil in the handwriting of said Mary Etta Camp :

57 St. Mark’s Place, }

N. Y-, December 28th, 1882. [

I, Mary Etta Camp, of the city of New York, now so reside, being of sound mind but of uncertain health, do make this my last will and testament in case I am not able to make out more fully a statement more minute in its details, to my sister Annie E. Smith must be paid, out of my estate, $4,000 which I owe her and my debts which I may leave unpaid, to

Mary Etta Camp.

Mary Etta Camp.

Mary Etta Camp.

This memorandum remained in the possession of Mary Etta Camp in her lifetime, and on her death was found amongst her papers by her executor and produced upon the trial by the defendant upon notice by the plaintiff. It does not seem to have been seen by anybody during the lifetime of the decedent.

There were certain other entries in the book put in evidence by the plaintiff, made since the 1st of April, 1881, amounting to $175, which appeared to be the acknowledgment of receipts of moneys from the plaintiff by the decedent. The plaintiff offered to prove items in these books prior to April 1,1881, aggregating a large sum of money, and similar to those mentioned running back to 1872.

This action having been commenced on the 9th of October, 18S8, these items were considered to be barred by the statute of limitations unless they were revived by the acknowledgment of December 28, 1882, and they were, therefore, excluded.

The court thereupon directed a verdict for the sum of $175 and the interest; and a motion having been made for a new trial, which was denied, from the judgment and order thereupon entered this appeal is taken.

The single question is, whether the memorandum dated December 28, 1882, was such an acknowledgment as took the claim out of the statute.

It is well settled that an acknowledgment to prevent the statute of limitations from running must be intended to be communicated to the creditor or to influence his conduct; the theory being that because of the promise and acknowledgment he has probably refrained from taking those steps which he otherwise would have taken to prevent the statute from running.

In the case at bar it does not appear that the memorandum in question was ever intended to be communicated to the creditor during the lifetime of the debtor, or in anywise to influence her conduct. In fact, the memorandum' appears to be an informal attempt of Mary Etta Camp to make a will, and, as it was futile for such purpose, its objects cannot be perverted from that which was intended by the subscriber into an acknowledgment of an indebtedness which would be binding upon her. Even -if it had been a will formally executed, it was revoked by the will of July 19, 1888, and an acknowledgment signed by a party, recalled before the creditor has knowledge of it, cannot possibly form the basis of, a claim-that the statute of limitations has ceased to run.

The whole tendency of the decisions upon this subject is, that the acknowledgment must be communicated to the creditor for the purpose of influencing his action, or that it might influence his action.

It is not necessary to cite authorities on this subject. In the Matter of Kendrick (107 N. Y., 104) an acknowledgment under oath of an indebtedness was held to be insufficient to take the debt out of the statute, because it was not made to the creditor nor to his agent nor to any one acting in his behalf; nor was it intended to be communicated to him or to influence his conduct. And it was held that an admission, under such circumstances, to a stranger was not effectual to rebut the presumption of payment, or .to revive a debt barred by the statute. Numerous other cases might be cited sustaining the principles already enunciated.

We think, therefore, that the judgment and order appealed from should be affirmed, with costs.

Daniels, J., concurred.

Brady, J.:

I concur with some reluctance.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Beady, J.:

license: Public Domain

text:
    NEWMAN COWEN and Others, Appellants, v. CHRISTINA ARNOLD and Others, Respondents.

      Sent collected by a receiver, in advance, /or a period extending beyond the date of the sale of the property — apportionment of the rent.

    A purchaser at a sale under mortgage foreclosure, where a receiver, appointed to collect the rents during the pendency of the action, has collected the rent in advance for a period extending beyond the day at which the sale takes place, is entitled to an apportionment of the rent so received by the receiver, and to be paid such amount thereof as covers the period of time subsequent to the sale.
    Appeal by the plaintiffs from an order made at Special Term, and entered in the office of the clerk of the county of New York on the 5th day of March, 1890, which directed that the receiver in the above-entitled action pay to the plaintiffs’ attorney certain expenses incurred by, and commissions owing to, the agent of the receiver, and denied a motion to apportion the October rents of the mortgaged premises.
    The action was brought for the foreclosure of a mortgage, and pending the action, and on March 29,1889, a receiver was appointed of the rents, issues and profits of the mortgaged premises. Judgment was entered on July 8, 1889, and at a sale had thereunder the property was bid in by the plaintiffs, who received the referee’s deed on the 4th day of October, 1889, prior to which time the receiver had received the October rents in advance, amounting to $271.50.
    The order appealed from was made upon an application, made on behalf of the plaintiffs, for an order directing the receiver to pay the plaintiffs the proportion of the October rents from the fourth day of October, and also to pay the amount due one Zittel, the assignor of the piaintifi, for his commissions in collecting the October rents, and for certain disbursements incurred in the care of the premises.

      Lewis Sanders, for the appellants.

      Charles H. Lovett, for the respondents.
   Beady, J.:

It appears that in this action a receiver of the rents and profits was appointed on the twenty-ninth of March last and collected the rents, which were payable in advance. The plaintiffs, as purchasers; received their deed on the 4th of October, 1889, and made application that the receiver pay the plaintiffs’ attorney, expenses of the agent, his commissions for collecting the October rents, and for disbursements in the care of the premises prior to October fourth, and the expenses incurred after the fourth of October, during that month, amounting to twenty-nine dollars, and also to apportion the rent for October to the plaintiffs. The plaintiffs were the assignees of the agent, Zittel, for value of his claims just mentioned.

The application for the payment of the agent’s expenses and commissions, amounting to seventy-seven dollars and one cent, with interest, was granted and the amount directed to be paid, but the application to apportion the October rents was denied. A supposed difficulty which presents itself in the consideration of this appeal arises from the fact that it is alleged by the receiver that the owner of the equity of redemption had not been served with notice of the motion, and this point is taken. It is quite clear that, so far as this appeal is concerned, the defendant Fink has no interest whatever in the fund that is left, for reasons which will appear. The rent was payable, as already suggested, in advance; but the only rent the receiver could take was for the first, second and third days of October, the delivery of the deed making him functus officio thereafter and entitling the plaintiffs to the rent accruing subsequently. Where the purchaser is-ready and willing to perform, and the delay is on the part of the vendors, the purchaser is entitled to the rents and profits from the time when, according to the terms of the contract, possession should have been delivered, or if the vendor has remained in possession he is chargeable with the value of the use and occupation from the same period. (Bostwick v. Beach, 103 N. Y., 423.) The receiver’s appointment was subject to the sale of the premises, the purchase of them under it, and the delivery of the deed and possession of the premises. Beyond the time when the purchase was completed his official relations to the parties did not exist, and he could not collect, on the first of October, the rent for the use of the premises from the fourth of October, although payable in advance, when the purchaser became entitled to the possession of the premises.

The learned counsel for the respondent suggests that in the absence of a statute or an express agreement to that effect rent can never be apportioned in respect to time, citing the following authorities: Zule v. Zule (24 Wend., 76); The Mayor v. Ketchum (67 How. Pr., 161); Cheney v. Woodruff (45 N. Y., 98).

These eases, with the exception of Cheney v. Woodruff, relate to actions brought against tenants, and that case is decisive of the inability of a purchaser at a foreclosure sale to recover the rent accruing between the time of the purchase and the delivery of his deed. None of these cases, therefore, has any application to the question in hand. All that the owner of the equity of redemption is entitled to in lands mortgaged, after the sale under the mortgage, .are the rents which become due down to the period when the purchaser under the decree of sale becomes entitled to the possession of the land. (Clason v. Corley, 5 Sandf., 447.) If the rule contended for, perhaps not seriously, by the respondents’ counsel were to prevail, namely, that any rental of premises sold under foreclosure, which accrued by being payable in advance the day before the delivery of the deed, would belong to the owner of the equity of redemption, then the purchaser would be deprived of the beneficial enjoyment of the premises for such period as the rent covered, whether it was three months, six months or a year. This proposition, of course, is wholly untenable.

The order appealed from must be reversed and the motion ordered reheard at the Special Term, when, if necessary, the owner of the equity of redemption can be brought in.

Yan Brunt, P. J., and Daniels, J., concurred.

Order reversed and motion sent back to Special Term to be reheard.


author: Yan Brunt, P. J.:

text:
    In the Matter of the Application of ROBERT SCHELL, etc., for an Order, etc.

      Two inconsistent orders made on the same motion — assignment by a client of his claim against his attorney — enforcement thereof by the assignee.

    Where two separate, distinct and inconsistent orders are entered upon a single application to the court, with nothing upon the face of the papers to show that one order is to replace, or to be a resettlement of the other, a reversal will be ordered on appeal.
    Where a client, having a claim against his attorney, arising out of transactions connected with that relation, assigns his claim, the assignee cannot take proceedings to compel the attorney to pay the money or in case he fails to do so to have him punished as for a contempt of court.
    Appeal by Peter A. Hargous from an order made at Special Term, and entered in the office of the clerk of the county of New York on the 26th day of March, 1889, directing that Peter A. Hargous pay over to Robert Schell the sum of $3,251.31, received by him in an action in which Edward Schell was plaintiff and the Mayor, Aldermen and Commonalty of the City of New York were defendants, and, in case of his failure so to do, directing that a precept of commitment issue against him.

      The application was made by Robert Schell, as assignee of Edward Schell, in order to enforce a claim made by Edward Schell, because of moneys collected by Peter A. Hargous in a certain action in which Edward Schell was plaintiff and the Mayor, Aldermen and Commonalty of the City of New York were defendants.
    The papers on appeal contained two orders, one under date of March 23, 1889, by which the matter was referred to Peter B. Olney, Esq., to take proof of the contracts and agreements made between Edward Schell and Peter A. Hargous for compensation for legal services in vacating or reducing a certain assessment for the Sixty-sixth street outlet sewer imposed on certain lots of said Edward Schell, etc., and the other under date of March 26, 1889, which directed that the said Peter A. Hargous pay to Robert Schell $3,251.31, or that, in default of such payment, a precept of commitment issue.

      M. JB. Smith, for Peter A. Hargous, appellant.

      John Delelvwnty, for Robert Schell, respondent.
   Yan Brunt, P. J.:

The papers in this ease present the rather curious anomaly of two separate, distinct and inconsistent orders being entered upon a single application, with nothing upon the face of the papers to show that one order is intended to replace or be a resettlement of the other.

This practice is one that is not to be encouraged, and if no other reason existed, we think it would form a sufficient ground for a reversal of the order appealed from. But there are other points which seem to be fatal to the application, and these may as well be disposed of upon this appeal as at any other time.

It appears from the papers in the case that the appellant had been retained by one Edward Schell to vacate an assessment and subsequently to recover certain moneys paid to the mayor, etc., because of said assessment. It was claimed, upon the part of- the appellant, that he had two distinct retainers, and that he was entitled under such retainers to retain the sum of fifty per cent of the recovery. The respondent, however, claims that he was onR entitied to retain twenty-five per cent, and that the respondent was entitled to the payment of the balance. Edward Schell assigned his claim against the appellant to one Robert Schell, who brought this proceeding against the appellant for the payment of the money or his punishment for a contempt.

We do not think that an assignee of a claim against an attorney can avail himself of this summary remedy. It is a procedure strictly between attorney and client, as is recognized in the Matter of Knapp (85 N. Y., 284), and by the assignment of his claim against the attorney the client cannot assign his relationship. It is a grievance personal to himself. It is because of the relations existing between attorneys and clients, that the client is allowed to pursue this extraordinary remedy; and it is because it is the duty of the court to see that the attorney acts with fidelity, as well to the court as to the client, that it assumes this jurisdiction. There does not seem to be any principle upon which a stranger, simply because he has become the owner of a demand which had once been owned by a client, can seek this protection of the court. The court does not owe any duty to him. He has not confided in the attorney because of this summary jurisdiction which he might invoke for his protection, and he stands, therefore, in an entirely different relation to the attorney than that which the client occupies.

As already intimated, it is the duty of the court to see that an attorney acts with fidelity towards his client. No such obligation is placed upon the court as to strangers, and we have not been able to find any occasion on which such authority has ever been assumed or even hinted' at. There certainly is no fiduciary relation existing between the assignee of a client and the attorney. Whatever obligations may exist between them are simply contractual, and the assignee in taking an assignment from a client of a claim against an attorney has no reason to suppose that he can claim against such attorney the penalties which a client may invoke. As already stated, the right depends upon the relationship; upon the credit given by the client to and the confidence reposed in the attorney because of his being an officer of the court. To hold that an assignee, who is a stranger so far as being the client of the attorney is concerned, should be able to invoke these extraordinary remedies would be to establish a principle which would entitle any creditor of an attorney to resort to the same procedure. And, further, in this ease there was a dispute as to what the contract was between the attorney and client, and it seems to us that unless it appears that this dispute was clearly frivolous, resort to these proceedings should not be encouraged.

The order should be reversed, with ten dollars costs and disbursements and the application denied.

Bartlett and Barrett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements and application denied.


author: Daniels, J.:

text:
    GEORGE R. GIBSON and Others, Respondents, v. THE AMERICAN LOAN AND TRUST COMPANY, Appellant, Impleaded, etc.

      Trustee of a mortgage acting in bad faith to the bondholders—injunction.

    Where it appears that a trust company, which has acted as trustee under a mortgage covering lands in another State, given by a corporation as collateral to-bonds issued by it, has acted in bad faith in the prosecution of an action for the foreclosure of the mortgage, and in a manner prejudicial to the interests and rights of the holders of the bonds, such trust company, its officers, agents and attorneys, will be enjoined by the courts of the State of New York from taking any further proceedings in the matter, pending the final hearing and determination of an action for its removal as trustee, although the proceedings in foreclosure are pending in another State, and relate to real estate therein.
    Appeal by the defendant, the American Loan and Trust Company, from an order of the Supreme Court, made and entered in the office of the clerk of the county of New York on the 14th day of March, 1890, enjoining the defendant from taking any proceedings, under a decree entered in the District Court of Otoe county,. Nebraska, on January 24,1890, in an action in which title American Loan and Trust Company, trustee, was plaintiff, and the City Water Company of Nebraska City, and the Nebraska City Water and Light Company, and the American Loan and Trust Company, trustee, were defendants, or for the enforcement thereof, and from taking any proceedings or acting as trustee under a deed of trust made to the said, the American Loan and Trust Company, by the City Water Company of Nebraska City, except to defend an action, brought by the same plaintiffs named in the action in which such order was made, in the District Court of Otoe county, Nebraska.

      Robert L. Harrison, for the appellant.

      H. Ellery Anderson, for the respondents.
   Daniels, J.:

The action has been brought in favor of the holdei’s of bonds issued by the City Water Company of Nebraska City in the State of Nebraska. The total issue of the bonds amounted to the sum of $150,000. Each bond was for the sum of $1,000, and secured by a mortgage upon the property of the Water Company. This mortgage was executed and delivered to the American Loan and Trust Company of the City of New York in trust for the security and benefit of the holders of the bonds. The Water Company made default in the payment of interest upon the bonds, and at the request of the holders of sixty-one of the bonds the Trust Company commenced an action in the District Court of Otoe county, Nebraska, to foreclose the mortgage and sell the mortgaged property. Before this action was commenced, and after the execution and delivery of the mortgage, another corporation was organized in the city of Nebraska called the Nebraska City Water and Light Company. ■And after the organization of that company the City Water Company, the mortgagor, transferred its property, covered by the mortgage, to a person who conveyed it to the Nebraska City Water and Light Company, which then incumbered it by a mortgage for $250,000. After this transfer and conveyance the grantee made additions to and improvements upon the property, and these facts were alleged in the petition for the commencement of the action for the foreclosure of the mortgage. That company answered the petition, alleging that it had purchased real property and built water-basins, and provided apparatus for the use of the company, and had obtained the performance of architect and engineering services, and that the amount expended therefor was necessary to keep the plant in running order and retain the customers of the City Water Company, and that it amounted to the sum of $25,000, for which a priority was'claimed in the action over the mortgage to the Trust Company. Other answers were served in the action, but containing no allegations affecting this part of the action. And after the issues had been framed the cause appears to have been brought on for a hearing by consent of the parties and a decree was entered in conformity to the prayer of the petition, and, also, finding due to the Nebraska City Water and Light Company, as a first lien upon the property, this sum of $25,000. No contest appears from the docket entry in the action to have taken place concerning the allowance of this sum of money, nor any adjudication by the court determining it to be a prior incumbrance upon the property to the mortgage previously given by the City Water Company. But what took place at the trial appears from the docket entry to have been the result of consent on the part of the attorneys and counsel representing the two water companies and the trustee to which the mortgage had been given. It further appeared that one of the attorneys who had been employed to and did represent the Trust Company in the commencement and prosecution of the foreclosure action was one of the incorporators of the Nebraska City Water and Light Company. The attorney who represented the mortgagor in the mortgage was also an incorporator in that company, and so was the attorney who represented and appeared for the Nebraska City Water and Light Company. And it was, accordingly, their interest to promote an,d maintain all such advantages as might be secured for the Nebraska City Water and Light Company, in preference to those of the Trust Company under the mortgage and the plaintiff in the foreclosure action. There was reason, therefore, for believing, in the disposition which was made of the foreclosure action by the judgment or decree agreed to be entered, that the rights and interests of the holders of the bonds secured by the mortgage had been so far disregarded and sacrificed, and that this had been done under the authority and with the connivance of the Trust Company itself.

When these facts came to the knowledge of the plaintiffs, measures were taken by way of correspondence to induce the Trust Company to permit the plaintiffs to be represented in the foreclosure action to secure a proper observance and vindication of their own rights under the mortgage. But this was declined on the part of the Thrust Company, which refused to authorize or consent to such interference,- And this refusal tended to confirm the belief that the Trust Company was not in good faith, prosecuting the foreclosure suit for the promotion of the interests and the protection of the rights of the holders of the bonds. And this action was thereupon commenced to obtain a judgment for the removal of the Trust Company as trustee under this mortgage, and for the appointment of another trustee to maintain and enforce the trusts created by its provisions. The complaint in the action prayed for the issuing of an injunction in the meantime restraining. the Trust Company, its officers, agents, attorneys and servants, from proceeding in any way in the foreclosure action, and from executing the judgment or decree which had been entered, or taking any other steps or proceedings as trustee under the trust deed. And the court, considering these facts to have been established by the proofs produced in the case, continued the injunction which had previously been issued having this effect, but leaving the Trust Company at liberty to take such defensive measures, or receive such sums of money as should be necessary for the protection of the rights of the holders of the bonds.

In support of the appeal which has been taken from this order, the objection has been urged that the court is without jurisdiction to restrain the trustee from carrying on or consummating these proceedings in the District Court of Otoe county, in the State of Nebraska. And the case of Cole v. Cunningham (133 U. S., 107), and those cited in the course of the opinion, have been relied upon chiefly as authorities maintaining this objection. But neither that case, nor anything which was decided in Phelps v. McDonald (99 U. S., 298), has any tendency to sustain this objection. On the contrary, it is conceded, as it has frequently been held, where a necessity for the injunction appears to exist,.that the courts of one State may enjoin the party within its jurisdiction from proceeding in an action pending in another State. And so it has been held, not only in this State but in others, as the authorities collated and discussed in Cole v. Cunningham clearly prove and establish. So far as objection has been taken to the jurisdiction of this court over this action, it is plainly without support. Neither can the action be defeated for the reason that all the owners of bonds secured by the mortgage are not made parties to it. For it has been brought by the plaintiffs as the owners of eighty-five of the bonds, forming more than a majority of those secured by the mortgage. And they are prosecuting it under the authority of section 448 of the Code of Civil Procedure, not only for the benefit of themselves, but of the other bondholders who may elect to make themselves parties to the litigation. This section has provided where the question is one of common or general interest of many persons, or where the persons who might be made parties are very numerous, and it may be impracticable to bring them all before the court, that one or more may sue or defend for the benefit of all. And as the holders of these bonds are numerous, that is a sufficient authority for the support of the action by these plaintiffs for their own benefit, as well as that of the holders of the other bonds.

The action is against the Trust Company, which is a corporation formed under the laws of this State, and it is, therefore, directly subject to the jurisdiction and authority of this court. Indeed, there would seem to be no other authority provided for the removal of the trustee beyond that which the courts of this State are authorized to exercise, for it is directly within the reach only of the process of this court, and subject to any judgment .which may be recovered against it in the action. And that is sufficient to answer all the requirements of jurisdiction on the part of the court. For no disability appears to exist on the part of the plaintiffs preventing the prosecution of the action by them, even though a portion of them, as the affidavits show the fact to be, are not residents of the State of New York. The defendant is here, and if an equitable right exists for its removal, the plaintiffs are entitled to enforce that right through the instrumentality of this jurisdiction.

That the Water Company of Nebraska City may not be brought into the action by any proceeding which has been provided for the service- of the summons upon a resident of another State will not necessarily defeat the action, for that company has no direct interest in the controversy existing between these bondholders and this trustee. It is not proposed, and could not be, to remove the trustee on account of any misconduct on the part of the Nebraska City Water Company, but the action has been brought for its removal, because of its own misconduct in consenting to the charge of this sum of $25,000 as a superior lien upon the property covered by the mortgage, when, under the authority of the law, the City Water and Light Company was entitled to no such advantage. The ground of the action is the alleged misconduct of the Trust Company itself, and no injury whatever can result to the Nebraska City "Water Company from the removal of the Trust Company, as trustee under this mortgage; and, for that reason, if jurisdiction shall be incapable of being acquired over that company, this failure does not appear to constitute a defense to the action. But as to that no-definite decision is required to be made, for the company may still appear and make itself a party to this litigation. But if it does-not, then the question will for the first time arise whether the-action can be maintained without that company becoming a party.

That the consent should not have been given, by which the-expenses of improvements upon the mortgaged property were made-a superior lien to the first incumbrance, appears to be reasonably well supported by the authorities, for they sustain the rule to be, where-a mortgage has been given upon real estate, that improvements, or fixtures or machinery, afterwards added to or affixed upon the property, become subordinated to the preceding mortgage, and are liable for the payment of the mortgaged debt the same as the property to which the articles are afterwards annexed. This principiéis settled by the following as well as other authorities: Smith v. Goodwin (2 Greenl., 173); Frankland v. Moulton (5 Wis., 1) Winslow v. Merchants’ Insurance Co. (4 Metc., 306); Pettengill v. Evans (5 N. H., 54); Butler v. Page (7 Metc., 40); and in Snedeker v. Warring (2 Kernan, 170, 174), where it was said in the-opinion that “permanent erections and other improvements made by the mortgagor, on the land mortgaged, become a part of the realty and are covered by the mortgage.” And the same rule is-equally as applicable where the improvements and erections shall be made by a party acquiring title under the mortgagor subsequent to the mortgage. And ‘to the same effect is McFadden v. Van Buren (50 Hun, 361). And this principle has also been applied to-growing crops upon land mortgaged, as will be seen by 1 Hilliard on Mortgages ([3d ed.] 180, note 0.)

If the Trust Company authorized its attorney and counsel to consent to the subordination of the lien of the mortgage to the expenditures alleged to have been made upon the mortgaged property, then, certainly, it is chargeable with that degree of misconduct which may properly result in its removal. (People v. Norton, 5 Seld., 176; Quackenboss v. Southwick, 41 N. Y., 117.) And that this consent resulted from its preceding authority, or subsequent acquiescence, may be inferred from the papers in the case exhibiting what has taken place and the refusal of the Trust .Company to permit any person representing these plaintiffs from intervening for their own protection in the foreclosure action.

The inability of this court to appoint another trustee under the mortgage, in case the Trust Company shall be removed, will not defeat the action, for, by the eighth paragraph of the mortgage it has been provided that a majority in number and value of the bondholders may, by an instrument in writing, under their hands, duly acknowledged or proved, and recorded in Otoe county, appoint or select one or more person or persons, or any other corporation,'to be a trustee under the mortgage in case of the removal of this Trust Company. This provision secures ample authority to the bondholders to select a trustee to execute and enforce the trusts and obligations created by the mortgage if this Trust Company shall be removed by the judgment of this court from its position. And that, certainly, tends to restrict this- litigation to the determination whether the trustee shall or shall not be removed from its office under the mortgage. And to that extent there seems tobe no well-founded objection to the jurisdiction or authority of this court.

The order from which the appeal has been taken should, therefore, be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    FANNIE W. READING, Respondent, v. JAMES B. HAGGIN, Appellant.

      Action for an account of the management and sales of land in another State—when it is not necessa/ry to allege that the defendant has money belonging to the plaintiff— jurisdiction of the courts of the State of New York.

    An action was brought to compel the rendering of an account by the defendant concerning the management and disposition of certain lands situate in the State of California, as to which a contract had existed between the plaintiff and defendant, by which certain of the lands were to be conveyed by the plaintiff to the defendant, and other lands were to be acquired by the defendant under the purchase and foreclosure of a mortgage thereon, all of which property the defendant was to sell, at such time as he deemed advisable, and after repaying to himself the amount expended by him was to pay to the plaintiff one-third of any excess over and above the same, and to himself retain the other two-thirds.
    The plaintiff alleged that the land was conveyed by her pursuant to the contract with the defendant, and that other property was purchased under a mortgage foreclosure as contemplated by the contract, and that defendant thereafter had sold said lands, or part thereof, and out of the proceeds of said sale had retained all money expended by him in the purchase, and all disbursements made in connection with such lands, but had failed to account for and pay over to the plaintiff one-third of the excess of the moneys received, and demanded judgment for an account of the dealings and transactions of the defendant under his contract, and of the moneys received and expenditures made by him, and that he pay to her such sum as might be found to be due to her.
    To this complaint the defendant interposed a demurrer on the ground that it did not state facts sufficient to constitute a cause of action.

      Held, that while the complaint did not allege, unless by way of inference, that the defendant had money arising from the execution of the trust created by the agreement, which should be paid over by him to the plaintiff, that, nevertheless, the plaintiff was entitled to a full and clear exposition and statement of what had been done by the defendant in the management and disposition of the estate.
    That it was not indispensable that the plaintiff should allege that the defendant had funds in his hands, obtained from the property, which he should pay to her.
    It was further objected that the complaint stated no cause of action, within the jurisdiction of a court of the State of New York, for the reason that the lands were situate in the State of California, and their management was confined to that State.

      Meld, that as to the question relating to the conduct of the defendant in the management and disposition of the lands, and the uses made by him of their proceeds, that the courts of the State of New York had jurisdiction over the .subject-matter of the action.

      Appeal, by tbe defendant James B. Haggin from a judgment of the Supreme Court, entered in tbe office of the clerk of the county of New York on the 25th day of February, 1890, in favor of the plaintiff, overruling the defendant’s demurrer to the plaintiff’s complaint.

      Charles B. Alexander, for the appellant.

      Charles M. Da Costa, for the respondent.
   Daniels, J.:

The plaintiff commenced this action for an accounting by the defendant concerning the management and disposition of lands situated in the State of California. It is stated in the complaint that in July, 1871, she entered into a contract with him for a valuable consideration, to make and deliver to him a good and sufficient deed of all her right, title and interest in. and to attract of land known as the Reading Ranch, or so much thereof as would constitute 20,000 acres, and for which he,

“Agreed among other things to purchase a certain mortgage on said estate known as the Hensley mortgage, and so much of the indebtedness against said estate of Pearson B. Reading, as he may deem proper, and to cause ¿aid property of said estate to be sold to satisfy said indebtedness, and defendant further agrees that if at such sale of said estate he shall purchase said estate, he shall hold the said property so purchased together with the property so agreed, as aforesaid, to be conveyed to him until such time as he deems advisable, when he may sell and dispose of the entire tract of land so purchased by him and ¿¿'conveyed to him by the plaintiff, until such time as he deems advisable, and out of the proceeds of said sale shall retain all moneys by him expended in the purchase of the said land and of said claims in and.about the said land for taxes or expenses thereon or in connection' therewith, together with the interest thereon from the date of payment at the rate of one per cent per month, and shall pay to plaintiff the one-third óf any excess over and above any such advancements, outlays and expenditures with the interest as aforesaid, defendant retaining the other two-thirds.”

The complaint further states that she, thereupon, and about the same time conveyed the land to him. And about two months there after executed and deliveredan other deed of the same property to him, to more fully carry out the terms of the agreement first entered into. It is then alleged that the

Plaintiff is informed and believes that defendant, in accordance .with the terms of said agreement hereinbefore in paragraph first of this complaint mentioned, did purchase the mortgage on said Reading Ranch, known as the Hensley mortgage and other indebtednesses, against the estate of Péarson B. Reading, deceased, and did cause the said property, known as the Reading Branch, to be sold to satisfy said mortgage and other indebtednesses, and did cause the said property so sold to be conveyed to himself, and thereafter did sell and dispose of said lands or part thereof, and out of the proceeds of said sale did retain all moneys by him expended in the purchase of said land and of said claims and in about the land for taxes or expenses thereon or in connection therewith, together with interest from the date of payment at the rate of one per cent per month.

But defendant has failed to account for and pay over to plaintiff one-third of the excess of the moneys or any of the moneys received by him on said sale of said property over his advancements, outlays and expenditures, and has neglected and refused to pay and account for the same, although he has been continuously requested and urged to do so; and defendant is and remains accountable to plaintiff for said one-third of the excess of the moneys received by him on said sale of said property over his advancements,. outlays and expenditures.”

And in addition thereto, that on or about the 15th of June, 1888, he delivered to her a statement of receipts and disbursements, but so general, vague and indefinite that it failed to give her accurate and definite information concerning the execution of the trust which he had undertaken, as that was set forth in the agreement made between them. And judgment is then demanded for an account of the dealings and transactions of the defendant under this contract, and of the moneys received, and expenditures made by him, and that he be adjudged to pay her such sum as might be found to be due and owing to her.

The ground of objection stated in the demurrer is, that the complaint failed to state facts sufficient to present a cause of action. But while, it is true that, it is not alleged, unless by way of inference, that the defendant has money, proceeding from the execution of the trust created by tbe agreement, which should be paid over by him to her, still, what was done under the agreement to carry it into effect and by himself since that time in the management and disposition of the estate, entitled her to a full and clear exposition of its affairs. The business had been in progress for upwards of eighteen years, and it was due to the plaintiff that she should be accurately informed of what had transpired, and of the present condition of the part of the estate remaining unsold. And that she could only obtain voluntarily or involuntarily from the defendant. It was not indispensable that she should allege that the defendant had funds in his hands obtained from the property which should be paid to her. That she could not do in the absence of information from him exhibiting the condition of the estate. And she became entitled to that information for the purpose of ascertaining whether he withheld from her moneys obtained from the property which he ought to pay over. That was the scope and design of the action, and it seems to be within the limits of the authorities. Upon this subject it has been said that wherever the account stands upon equitable claims, or has equitable trusts attached to it, the jurisdiction is absolutely universal. And that cases of accounts between trustees and cestuis que trust may properly be deemed confidential agencies, and are peculiarly within the appropriate jurisdiction of courts of equity.' (1 Story’s Eq. Jur. [5th ed.], §§ 4-54,465.) The beneficiary is entitled to an account of the acts and management of the trustee, or quasi trustee, and if it cannot be voluntarily obtained, then to the aid of a court of equity to secure it. And that is the ground upon which the case of Marvin v. Brooks (94 N. Y., 71, 80, 81) appeal’s to have been decided. And that the trust or fiduciary obligations there related to money to be invested in property, and here in property to be managed and disposed of for the joint benefit of the parties, will not interfere with this application of that decision. If the jurisdiction extended to the former, it necessarily must include the latter. The case of Uhlman v. New York Life Insurance Company (109 N. Y., 421) in.no way infringes on this statement of the jurisdiction, for the plaintiff failed there because the element of a trust was held not to enter into it.

The cases so numerously cited by the defendant’s counsel were brought on entire contracts before the period for their complete performanee had expired, and hare no application to this action. They •were actions at law depending upon the fact of full performance for their success and do not now need to be specially examined. While here the action is supported by the plaintiff’s right to an account, of which she lias been deprived by the defendant.

In support of the demurrer it has been further objected that the complaint states no cause of action within the jurisdiction of this court, for the lands are situated in the State of California, and their management was confined to that State. But the action does not so much relate to the lands as to the conduct of the defendant in their management and disposition and the uses made by him of their proceeds. And over that, as the defendant has been found within this State, this court has jurisdiction. This general subject was at an early day considered in the case of Massie v. Watts (6 Cranch, 148), where, after an examination of the authorities, it was concluded that, “ upon the authority of these cases, and of others which are to be found in the books, as well as upon general principles, this court is of opinion that, in a case of fraud, of trust or of contract, the jurisdiction of a Court of Chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.” (Id., 160.) And that very aptly includes this case, and it has since been followed without dissent. ( Watkins v. Holman, 16 Peters, 25, 57; Sutphen v. Fowler, 9 Paige, 280, 282; Newton v. Bronson, 3 Kern., 587; Gardner v. Ogden, 22 N. Y., 327.)

It is not necessary to consider whether this objection is within the comprehension of the demurrer. For it is sufficient that it has no legal foundation to support it. Upon neither of these objections, nor any incidents of them entering into the subdivisions of the argument, was the defendant entitled to succeed. But the judgment should be affirmed, with costs, with leave to the defendant to answer in twenty days, on payment of the costs of the demurrer, and the costs and disbursements of the appeal.

Yan Brunt, P. J., and Bradt, J., concurred.

Judgment affirmed, with costs, with leave to the defendant to answer in twenty days on payment of the costs of the demurrer and the costs and disbursements of the appeal.


author: Barrett, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWIN M. WORTH, Appellant, v. HUGH J. GRANT, Mayor of the City of New York, Respondent.

      The granting of a license to have an exhibition in the city of Nm Yoi'k. is discretionary with the mayor.

    Under section 1998 oí chapter 410 of the Laws of 1882, providing that an exhibition shall not take place in the city of New York until “a license for the place of such exhibition, for such purpose, shall have been first had and obtained,” and section 1999 providing that “ the mayor of the city of New York is hereby authorized and empowered to grant such license, to continue in force until the first day of May next ensuing the grant thereof, on receiving for each license so granted, and before the issuing thereof, the sum of five hundred dollars,” it is discretionary with the mayor whether he will grant a license or not.
    The court cannot be called upon to substitute its judgment for that of the mayor on an application for a mandamus to compel the latter to grant the license.
    Appeal by the relator, Edwin M. Worth, from an order made at Special Term, under date of November 5, 1890, and entered in the office of the clerk of the county of New York on November 1,1890, which denied a motion that a peremptory writ of mandamus issue to be directed to the respondent Hon. Hugh J. Grant, mayor of the city of New York, requiring him to act, upon the application for a license filed with him, by the relator, Edwin M. Worth, and directing him to grant to the said relator, on receiving the sum of $500, a license to give vocal and instrumental concerts, and to give museum exhibitions, without stage scenery or apparatus, on premises located and known as Worth’s Museum, 492 Sixth avenue, in the city of New York.

      A. J. Dittenhoefer and David Qerber, for the appellant.

      Charles Blandy and William H. Ciarle, for the respondent.
   Barrett, J.:

The above statement sufficiently indicates the character of this appeal. The relator contends that the mayor is not vested with discretionary power in the premises, and that upon tender of the fee specified in the statute (Consolidation act, § 1999) he is absolutely entitled to the license asked. The respondent, on the other hand, contends that the question whether the license shall issue rests in his sound discretion. Whether a duty imposed upon a public officer is imperative or discretionary is always a question of legislative intention. “ Each case,” as Judge Dillon observes in Ms work on Municipal Corporations (§ 98), “ must be largely decided on its own circumstances and the legislative intent gathered from the whole act. No positive or stereotyped rule can be laid down.” Keeping this doctrine in mind, cases which might otherwise seem to conflict are easily reconcilable. To illustrate: In Perry v. The Mayor (7 How. Pr., 81), Judge Mitchell held that the mayor’s discretion to license a stage-driver ivas absolute, that he was not bound to assign any reason for his decision, and that impeachment was the only remedy for an abuse of power. In the People ex rel. Osterhout v. Perry (13 Barb., 206), Judge Harris held that the mayor of Albany was absolutely bound to grant a license (to carry on the business of booking emigrant passengers) to any person whó brought himself within the terms of the act. The conflict here is but seeming. The ordinance under consideration in Perry v. The Mayor authorized and required the mayor to issue licenses to as many persons as he might think proper, and to -revoke the same at his pleasure (p. 84), while the act of 1848 (chap. 219, § 7), which was construed in the People v. Perry, conferred no such broad authority, but simply provided that no person should exercise the vocation of booking emigrant passengers without keeping a public office for the transaction of that business, “ nor without the license of the mayor, * * * for which shall be paid the sum of $25 per annum,” and giving a satisfactory bond to the mayor as security for the proper manner in which the business should be conducted. The italicized phrase was the only expression of authority contained in that act, and Judge Harris, while intimating that it Avould have been better if the legislature had authorized the mayor to grant or withhold licenses in his discretion, held that such discretion could not be inferred from the language quoted; that the only discretion vested in the, mayor Avas that of determining whether or not the bond offered by the applicant was satisfactory, and that if any further discretion had been contemplated, “the rules of interpretation require us to suppose such intention would have been distinctly expressed.”

The language employed in the consolidation act is not as broad as that used in the ordinance under review in Perry v. The Mayor, nor as narrow as tbe expression contained in the act construed in The People v. Perry. Section 1998 provides that the exhibition shall not take place until a license for the place of such exhibition for such purpose shall have been first had and obtained.” Then follows section 1999, the material part of which reads as follows :

“The mayor of the city of New York is hereby authorized and empowered to grant such license, to continue in force until the first day of May next ensuing the grant thereof, on receiving for each license so granted, and before the issuing thereof, the sum of five hundred dollars.”

The relator’s contention is, that these words, “ authorized and empowered,” should be construed as imperative, and he cites authorities for the proposition that permissive words may sometimes be treated as mandatory. This proposition will not be denied, but the question is, whether the circumstances here call for such a construction. The rule undoubtedly is, that where public bodies or officers are empowered to do that which the public interests require to be done, and adequate means are placed at their disposal, the proper execution of the power may be insisted upon though the statute conferring it be only permissive in its terms. (Mayor v. Furze, 3 Hill, 612.) The word “ may ” is thus construed at times to mean “ must.” But why, it may be asked, should this construction be given to the act under consideration % What public interest demands that the mayor should be required under all circumstances to accept the fee and grant the license ? It seems to me that it is quite the other way. The public good cleai’ly requires that the permissive words in question should be read in their natural and ordinary sense. The title which heads these sections is “Amusements,” and a system follows, regulating places of public entertainment in important particulars. Exhibitions upon Sunday are forbidden (§ 2001); so are public masquerades (§ 2008); so is the sale of wine, beer or strong or spirituous liquors (§ 2010); so is the presence of minors under the age of fourteen unaccompanied by an adult person. The whole act is plainly within the police power, and the payment of license fees to the Society for the Reformation of Juvenile Delinquents is a mere incident. _ „■

In Wallack v. The Mayor (3 Hun, 84), the same view was taken of the act of 1872, from which the sections of the consolidation act already referred to were drawn. That act was entitled “An act to regulate places of amusement in the city of New York.” (Laws of 1872, chap. 836.) It was of this enactment that Davis, P. J., in the case cited, observed:

“ The chief object of this act is to provide for the regulation of places of amusement in the city of New York, by placing them under the control of the public authorities through a system of licenses to be granted by the mayor on the payment of a fixed fee.”

The learned judge further observed that: “ It might be no difficult task to show that the system of licenses, and its consequent preclusion of unworthy exhibitions, from which license is or ought to be withheld, is greatly advantageous to such establishments as the plaintiff’s by preventing the degradation of all such performances in the public estimation, which would be quite certain to grow out of the promiscuous and unrestrained exhibitions which would spring up in the absence of legal restrictions.”

The relator lays great stress upon the fact that the license is not for the entertainment itself, but for the place where it is to be given. But the language is, “ for the place of such exhibition for such purpose; ” that is, for the purpose of the proposed entertainments. The applicant must, therefore, specify the purpose as well as the place, and the inquiry which the mayor may then properly institute is not limited to the applicant’s characterization of his intended performances. If the applicant openly avows an immoral purpose, surely the mayor is not bound to facilitate the execution of such purpose. If, however, the purpose is apparently proper, the mayor may look beneath the surface and ascertain the real purpose; and if, upon investigation, that purpose, in his judgment, is inimical to good order and public decency, he may properly withhold the license. It would, indeed, be a remarkable construction, subversive of the entire object sought to be attained by the act, which would compel the mayor to license an avowedly indecent exhibition or a disorderly place of entertainment. The relator insists that even under such circumstances the license must be granted, and that the only remedy is to treat the exhibition as a nuisance, and check it by the operation of the criminal law. This, however, would be entirely inadequate. The purpose disclosed or ascertained might be grossly immoral and yet outside the Penal Code. It is no answer to say that after the license is obtained the manager may change his plans and foist an improper exhibition upon the public, or that he may lease to another who will do likewise. That may be, and yet it furnishes no good reason for depriving the mayor of the exercise of original judgment. On the contrary, it is an argument in favor of careful discrimination in the first instance. But even if the mayor’s authority were limited to the place, without regard to the purpose, his discretion remains. The locality of play-houses, circus pavilions, concert halls and the like is clearly a matter of public concern. It may well be, for example, as Mayor Grant has decided in the present instance, that a building for the exhibition of curiosities with the enlivenment of music and song, erected upon the site of “ The Argyle and the Haymarket,” formerly notorious resorts, would be likely to attract the evil characters who are said to abound in the neighborhood, and who were formerly patrons of the resorts named. The question of the neighborhood was thus highly important, and it was clearly a question upon which the mayor might exercise his judgment..

The view which we have taken of the act under consideration is fully supported by the authorities. In Morse v. Edson (Supr. Ct., MS. opinion) Mr. Justice Ingraham carefully examined the subject, and, in an able opinion reviewing the eases, arrived at the conclusion that the power to license was discretionary. Since that case was decided the same conclusion was arrived at with regard to a similiar act in The People ex rel. Dorr v. Thacher (42 Hun, 349). In the latter case the language used was also permissive. It was held that it would be contrary to the policy of the law to treat it as mandatory, and that it was intended to be permissive “ in view of the object and end to be answered by an observance of the right conferred.” The Commonwealth ex rel. Miller v. Stokley (12 Phil., 316), is cited by the relator as an authority against the claim of discretion. An examination of the case, however, will show that the language of the act was mandatory, “ which license shall be granted upon the payment,” etc., and that the decision was regretfully placed upon that express ground.

Other questions are discussed upon the appellant’s brief, but they are not entitled to serious consideration upon this appeal. For instance, the argument agaiust the constitutionality of the act. That argument certainly does not advance the relator in the direction of a mandamus. It is only by ignoring the law, and proceeding without a license, that he can raise that question.

It is not necessary to consider the question whether the discretion is, under any circumstances, reviewable. The relator contends that, if it exists at all, the discretion is qualified by the requirement of good faith. He insists, in other words, that it is not an arbitrary discretion, but one which must be reasonably exercised. There are cases where an abuse of discretion may be controlled by mandamus. (Topping on Mandamus [Am. ed.], 66; Village of Glencoe v. The People, 78 Ill., 382.) But the difficulty here is, that the court cannot substitute its judgment for that of the officer. To do so would be, in effect, to usurp the power to grant the license. (People ex rel. Wilson v. Supervisors of Albany, 12 Johns., 414.) But this subject need not be pursued, for the reason that the relator has not made out a case of this extreme description. Many of his statements, it is true, are expressly admitted or not denied, but his averments of good moral character, and his intention to give proper and moral performances, are explicitly denied. The mayor expressly puts his refusal to license the relator upon two grounds: First, that he is not, in the mayor’s judgment, a man of such character as to render, him a proper person to be entrusted with the license; and, second, that it would be dangerous to the good morals and welfare of the community to license the premises in question. Several facts are stated, somewhat generally, it is true, in support of these positions, and it is, therefore, impossible, to treat the mayor’s decision in the matter as an abuse of discretion. Certainly, the relator has made out no case for a peremptory mandamus, for the facts upon which he claims that the mayor’s conduct was arbitrary and oppressive are sufficiently in dispute to raise an issue upon that head; and an alternative ma/ndamus was not asked.

It follows that the order denying the application for a peremptory mandamus should be affirmed, with ten dollars costs and the usual disbursements.

Yan Bbunt, P. J., and Bartlett, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author:
Daniels, J.:
      Van Brunt, P. J.

text:
    FREDERICK A. DUNN, Appellant, v. THE NEW HAVEN STEAMBOAT COMPANY, Respondent.

      Loss of money and chattels from his berth by a passenger, through the negligence of a steamboat company—charge of the court in reference to the plaintiff’s negligence.

    A passenger on a steamboat retired for the night to his birth, where he had with him seventy-three dollars in bills, a gold watch worth sixty or seventy dollars; a gold pen and pencil worth three dollars; railroad tickets for which he paid six or seven dollars, and a silver watch whose value was unknown. These articles he placed in his vest, which was put under his pillow, and when he awoke in the morning the vest and these articles had been stolen.
    In an action brought to recover their value from the steamboat company, it was charged that the loss had arisen through the negligence of the persons in charge of the steamer.
    The court charged the jury that if they found, that it was a negligent act for the passenger to have this amount of money in his berth under the circumstances, instead of giving it to the employees of the company to take care of, that the defendant was entitled to a verdict.

      B.eld, that this charge was erroneous; that even if it was negligence for the plaintiff to have this money in his berth, it in no degree contributed to the loss of the other articles which he had in his vest, nor did, it affect his right to recover their value.
    The court also charged that the plaintiff had a right to carry these things with him on his trip, but not to retain them in his berth.

      Held that under this charge the jury might have inferred that the plaintiff had no cause of action because of his having taken these articles into his berth, and that the charge was erroneous. (Van Brunt, P. J., dissenting.)
    Appeal by tbe plaintiff Frederick. A.'Dunn from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 28th day of March, 1890, dismissing the plaintiff’s complaint, with costs; and also from an order denying a motion for a new trial, made on the minutes of the court and entered in the office of the clerk of said county on the 26th day of March, 1890, after a trial at the New York Circuit before the court and a jury, at which a verdict was rendered in favor of the defendant.
    The action was brought to recover certain money, and. the value of certain chattels, which were lost by the plaintiff while he was a passenger on the defendant’s steamboat, “ Elm City,” on a voyage from New York to New.Haven, in the. night-time, which loss was alleged to hav<j been occasioned through the negligence of the defendant.

      Hyland <& Zabrislde, for the appellant.

      William J. Kelley, fer the respondent.
   Daniels, J.:

The plaintiff was a passenger on the defendant’s steamer from the city of New York to New Haven. He paid his passage-money and received a ticket for the trip, with the number of his berth on its back. He testified that he had with him when he retired seventy-three dollars, in bills; a gold watch, worth sixty or seventy dollars; a gold pen and pencil for which he paid three dollars; railroad tickets, for which he paid six or seven dollars, and a silver watch he had repaired for his brother, for which no value was given, and that these articles were in his vest and placed under his pillow. And that when he awoke in the morning the vest and those articles had been stolen. This evidence was not contradicted.

It was charged in the complaint that the loss was owing to the negligence of the persons in charge of the steamer, which was denied by the defendant. And whether the charge had been sustained was a question for and submitted to the jury. In its submission by the court the legal rules on which the action depended were plainly and clearly brought to the attention of the jury. But, as is usually the fact, that satisfied neither of the counsel. And each requested further intructions, some of which they were not entitled to have submitted to the jury. Among these requests was one by the defendant’s counsel in which the court was asked to charge: That if the jury believe the plaintiff was guilty of negligence in disposing of his property in the way he did it is a bar to his recovery. And that was answered by the court:

I so charge. If you find that it was a negligent act for him to have this amount of money in his berth, under the circumstances, instead of giving it to the employees of the company to take care of, if you find affirmatively that that was negligence, then the defendant is entitled to a verdict.

And to that the plaintiff excepted. It did not follow, even if it was negligent for the plaintiff to have this money, which amounted to seventy-three dollars, in his berth, that he should be thereby defeated altogether in his action.. Yet the court so instructed the jury. The direction gave them to understand that the plaintiff must be defeated, if it was negligent for him to have that money in his berth, even though the theft had resulted from the carelessness and inattention of the persons in charge of the business of the steamer. This was an erroneous direction, for such negligence on his part in no way contributed to the residue of the loss, or affected his right to recover the value of the gold watch, the gold pen and pencil, and the railroad tickets, which it was not negligent to carry in this manner.

The court was also requested by the plaintiff's counsel to charge that a passenger on such a steamboat has a right, when he retires, to retain such articles as those the plaintiff had in his possession at the time of retiring. That, the court at first left “ it to the jury to say whether, under all the circumstances, that would be justified.” The counsel then asked the court again to charge that proposition, and the response was: “ He has a right to carry them with him on his trip, but not to retain them in his berth.” . And to that the plaintiff’s counsel excepted. The jurors may be assumed to have been men of plain sense and experience, who would not consider the charge qualified with these particular directions with the legal acumen of persons having a long course of professional training. But they would be very hable to be impressed with the conviction that the plaintifE had no ground of action because of his improper conduct in taking these articles into his berth. The statement was without qualification that he had no right to retain these articles in his berth. And it followed from that direction, as jurors would commonly understand it, that he had no right to complain of their loss by theft. These directions were so plainly given that the jury was not liable to misunderstand them or to fail to act upon them. And their attention would not be diverted from them by what had been very properly said to them previously in ■ the charge. They were the last directions, and as they were so plainly given, must have improperly determined the jury against the plaintiff.

The judgment and order should, therefore, be reversed and a new trial directed, with costs to the plaintiff to abide the result.

Beady, J., concurred.

Van Brunt, P. J.

(dissenting) :

This action was brought to recover the value of certain personal property claimed to have been lost by the plaintiff while a passenger on the defendant’s boat, the “Elm City,” on a voyage from New York to New Haven in the night-time.

It appeared from the evidence that the plaintiff had been a traveling salesman for some time prior to the occurrence in question, and that in December, 1883, he took passage on the “ Elm City ” for New Haven, leaving New York at 11 p. m. He paid seventy-five cents for his passage ticket. He knew that there were state-rooms on the boat and had used them before himself, but on this occasion he did not take one. A berth was assigned him, the number of which was put upon the back of the ticket. He placed some of his baggage in charge of the officers of the boat, but kept his money and jewelry. The berth occupied by the plaintiff was in the main cabin, which was brightly lighted when he retired, and was lighted when he woke up in the morning. There was a porter in the cabin on watch when he went to bed; and he testified that when he woke up and discovered his loss the porter was not in sight. It appeared that, upon retiring, the plaintiff took off his vest, putting into it his money, his scarf pin, gold pen-holder and some railroad tickets, folded it up and put it under his pillow.

The evidence further showed that, upon the night in question, there was a watchman in the cabin and two on the deck, and the two deck watchmen went through the cabin every fifteen minutes, and the captain two or three times. There was a safe in the office for securing the valuables of passengers if they saw fit to deposit them; and there was some dispute as to whether any notice of the existence of such safe was posted in the cabin or not.

Upon the trial the learned court charged the jury that the defendant was a common carrier, and was bound to carry the plaintiff, who was a passenger, to his destination; that it was bound to take care of the property or baggage that a passenger intrusted it to carry, and that for the property intrusted to its care it would be responsible if the employees of the company failed to deliver it safely at the end of the journey. And that as to such portion of his baggage or wearing apparel as a passenger retained control of and did not give to the agents of the company a different rule applied. The obligation that the company assumed when it furnished the plaintiff with a berth was to take the care an ordinarily prudent person would take to protect him during the time he was asleep; it was to do what a prudent person would do under the circumstances; not any particular thing, but to use such vigilance as an ordinary prudent person under the circumstances would have used to protect the passenger from molestation and his baggage from robbery. And the question submitted to the jury was whether the defendant had exercised that degree of care toward the plaintiff and his property. The jury found a verdict for the defendant, and, from the judgment thereupon entered this appeal is taken. It seems to be sought to impress upon the defendant the liability of an innkeeper. We fail to find any parallel between the obligation of an innkeeper and of a common carrier. The rule has been well settled that as to the personal property which the passenger takes charge of himself the common carrier is to use only ordinary care. He is not an insurer. If this plaintiff had seated himself in the cabin of the defendant and placed his property upon a chair beside him and it had been stolen, there would be no question as to the liability of the common carrier except upon proof showing that the carrier had been negligent in the management of its vehicle of transportation. The rule is entirely different as to those articles which the passenger places under the control of the employees of the common carrier, or in the case where he hires a room upon whieh there is a lock furnished by the carrier where he has placed his goods entrusting them to the lock so furnished, from the case where the manual custody of the goods themselves is continuously in the passenger.

In the case at bar the condition of the plaintiff was precisely the same as though he had laid down upon a sofa in the cabin to sleep; and the principle of liability of a common carrier has not been carried so far as to insure the goods of a.passenger if he was robbed under those circumstances. Unless there was negligence upon the part of the common carrier in taking .that ordinary care to prevent the happening of such an occurrence the right of recovery would not exist. And this is all the duty whieh the defendants owed to the plaintiff — ordinary care; and this the jury found that he had received at its hands, and, consequently, held that he had no right to recover. There is one exception, however, which it is necessary to especially notice. The plaintiffs counsel made the following request:

“ I ask your Honor to charge also, as matter of law, that a passenger on a steamboat, such as this was, has a right, when he retires, to retain such articles as those the plaintiff had in his possession at the time of retiring.”
The Court—That I refuse to charge as a matter of law. I leave it to the jury to say whether, under all the circumstances, that would be justified.”

Tins request was to the effect that the plaintiff had a right to recover, which, as already seen, was not necessarily the case, and it was for the jury to determine whether such was the fact or not, and, therefore, the court was justified in the refusal. The plaintiff’s counsel excepted to the refusal of the court, and then asked the court again to charge that proposition. The court replied : “ He has a right to carry them with him on his trip, but not to retain them in his berth.”

It is urged that this was directing a verdict for the defendant. But it will be seen from the context that the plaintiff’s counsel was urging the court, as matter of law, to charge that he had a right to retain them in his berth, and the answer of the court was to the effect that he had a right, as matter of law, to carry them with him on the trip, but not, as matter of law, to retain them in his berth at the risk of the defendant; and this was all that this charge meant, and because the learned counsel, after insisting upon the court charging that which it had refused to charge, got the opposite proposition from that which he was contending for, he has no reason to complain.

There seems to have been no error and the judgment and order appealed from should be affirmed, with costs.

Judgment and order reversed and new trial ordered, with costs to the plaintiff to abide the result.


author: Per Curiam :

text:
    JOSEPH J. O’DONOHUE and JAMES T. McGOVERN, Administrators of JAMES McGOVERN, Deceased, Respondents, v. ZACHARIAH E. SIMMONS, Appellant.

      Jury—need not be thoroughly satisfied in a civil action — when the sheriff’s negligence or fraud discharges the obligation of a bond of indemnity.

    In an action brought to recover upon a bond of indemnity, given to protect a sheriff in seizing certain property under an execution, the judge charged the jury, in reference to the conduct of the auctioneer who had been employed by the sheriff to sell the property: “I think it fair do say to you that you ought to be thoroughly satisfied that the conduct of. the auctioneer was not merely negligent or careless — not a mere oversight. Before concluding the sheriff should lose his indemnity, because of the auctioneer’s acts, you should be quite satisfied that the latter was acting in bad.faith.”

      Held, that the court, instating to the jury that they should be thoroughly satisfied, gave them an incorrect standard as to the conclusiveness of the proof required; that in a civil action the jury need not be satisfied of any fact claimed to be proven; that if there is a preponderance of evidence in favor of the fact, they are bound to find accordingly whether they are thoroughly satisfied or not; that the charge was also incorrect in stating that fraud must be shown in order that the indemnity should be lost.
    Appeal by the defendant Zachariah E. Simmons from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 10th day of May, 1889, in favor of the plaintiffs; and also from an order denying the motion for a new trial made upon the minutes of the court before which the trial was had.
    The action was brought to trial at the New York Circuit, before the court and a jury, and a verdict was rendered in favor of the plaintiff for the sum of $9,963.

      A. Kling, for the appellant.

      J. M. Smith, for the respondents.
   Per Curiam :

This action was brought to recover upon an indemnity bond given to the sheriff indemnifying him against seizing, under execution, property which he judged to belong to the defendant in the action in which such execution was issued.

The two important questions which were presented upon the trial were: First, whether the defendant had ever executed and delivered the bond set forth in the complaint; and, secondly, whether the negligent and illegal acts of the sheriff had not discharged the defendant from the terms and conditions of the bond.

This action has been tried three times. The record presents only one question which requires notice.

The bond of indemnity to the sheriff upon which the suit is brought was designed to protect that officer against the consequences of his official acts, particularly his act in taking the goods which he judged to belong to the defendant in the execution. It was not intended to afford protection in case of any misconduct or violation of duty by the sheriff or his agents, and the court so held on the previous appeal.

The appellant now insists that the learned judge who presided at the trial committed an error which calls for a reversal of the judgment because of the following charge :

“ If a sheriff takes a bond of indemnity and employs a competent and proper auctioneer to sell the property, it may seem to you to be a hardship that the sheriff should lose his indemnity because that auctioneer misbehaves himself. Now, while I do lay that down as a rule of law, yet I think it fair to say to you that you ought to be thoroughly satisfied that the conduct of the auctioneer was not merely negligent or careless, not a mere oversight. Before concluding that the sheriff should lose his indemnity because of the auctioneer’s acts, you should be quite satisfied that the latter was acting in bad faith and was guilty of misconduct tending to affect the sale seriously. In other words, the element of fraud here comes in, and the misconduct on the part of the auctioneer which would destroy the indemnity should be carefully distinguished from mere carelessness or oversight.”

The learned counsel for the appellant excepted to the portion of the charge just quoted, in which it was stated that something more than mere negligence on the part of the auctioner must be shown to make the sheriff liable in discharging the bond of indemnity. We think that this portion of the charge was in conflict with the opinion of the court upon the previous appeal.

The court also, in stating to the jury that they should be thoroughly satisfied that the conduct .-of .the auctioneer ..was mot merely negligent or careless, was giving them an incorrect standard as to the conclusiveness of proof. In a civil case the jury need not be thoroughly satisfied of any fact claimed to be proven. If there is a preponderance of evidence in favor of the fact, they are bound so to find whether they are thoroughly satisfied or the proof is conclusive to their minds or not. And, furthermore, the charge was incorrect in stating that fraud must be shown in order that the indemnity should be lost.

There might be negligence and carelessness of the grossest kind without its amounting to fraud, a,nd, in fact, such negligence or carelessness may amount to misconduct without the element of fraud entering therein. And the rule laid down upon the previous appeal was that if any property was lost by the misconduct of the officer the sureties would not be liable. It was not laid down that fraud must be shown, but simply that, unless the officer executed his process with fidelity, and with reasonable diligence, he could not claim his indemnity. In attempting to import the element of fraud into the consideration of this question, the fact seems to have been lost sight of that the indemnity is given to the sheriff for his protection in the execution of the process; and in protecting the rights of his indemnitors he "is bound to use reasonable diligence and care. If he is careless or negligent in the execution of the process, he cannot claim indemnity against those persons who have agreed to stand between him and loss, provided ho executes the process with due care and diligence.

By the instruction referred to the jury were necessarily misled, and for this error the judgment must be reversed and a new trial ordered, with costs to appellant to abide event.

Present — Yan Brunt, P. J., and Bartlett, J.

Judgment reversed and new trial ordered, with costs to appellant to abide event.


author: Daniels, J.: Brady, J.

text:
    THE METROPOLITAN CONCERT COMPANY (Limited), Respondent, v. HOWARD A. SPERRY and Another, Appellants.

      Costs — against an assignee of the cause of action — sureties upon an undertaking, who prosecute the action brought by their principal, a/re not liable for the costs — remedy of the defendant.

    'Section 3247 of the Code of Civil Procedure, in relation to the payment of costs, only applies to a case where the cause of action has heen transferred to the party sought to be charged with costs, or he has become beneficially interested therein.
    That section does not cover a case in which a surety upon an undertaking, given upon obtaining an order of arrest, applies to the court to set aside a default made by the plaintiff in that action, and to he permitted to prosecute, and does prosecute, the same. (Brady, J., dissenting.)

      Semble, that the remedy of the defendant, in the action in which the order of arrest was obtained, must rest upon the undertaking given by the sureties.
    Appeal by the defendants from an order made at Special Term, and entered in the office of the clerk of the county of New York on the 2d day of July, 1890, which denied the defendants’ motion for leave to issue an execution against the property of Theodore Heilman and Emil Carlebach, sureties for the plaintiff in the above: entitled action.
    The order was made upon a motion to compel Theodore Heilman and Emil Carlebach to pay $3M.59 costs, for which a judgment had been entered in favor of the defendants, in an action brought against them by the Metropolitan Concert Company (Limited), in which an order of arrest had been made, the undertaking given upon issuing which had been signed by said Theodore Heilman and Emil Carlebach as sureties.

      Howard A. Sperry, for the appellants.

      Eugene Seligman, for the respondent.
   Daniels, J.:

The action was commenced by the plaintiff to recover the value of certain property, and an order of arrest was made under which the defendants, or one of them certainly, was held to bail. This order was afterwards vacated and the complaint in the action was finally dismissed for the want of prosecution. These two sureties after that applied to the court to set aside the default and to permit them to prosecute the action. That order was made and they proceeded from that time with the prosecution of the suit. It finally reached the Court of Appeals, where it was held that the plaintiff was not entitled to recover, and a judgment for the costs was recovered in the action.

The plaintiff was then insolvent, and this motion was made to require these two sureties to pay the costs which had been recovered under the authority of section 3247 of the Code of Civil Procedure. But the motion was denied for the reason that the cause of action had not been transferred to them and they did not become beneficially interested therein. And that appears, by what had taken place, to have been their situation. No transfer of the cause of action or any interest in it was made to them. They did not become beneficially interested in it in any form, nor did it, by transfer or otherwise, become their property. And it is only when the action may be carried on by a party sustaining one of these relations to it that this section of the Code has subjected him or them to liability for the costs. By no fair construction of the language of any part of the section can it be held to include the case of these sureties. What they did in the way of prosecuting the action was to protect themselves against liability on their undertaking, and not to secure any advantage or interest whatever in the recovery.

The remedy of the defendants, if they are entitled to recover these costs from the sureties in the undertaking, must, therefore, be by an action upon that instrument. It was given in compliance with section 559 of the Code of Civil Procedure, and it bound these sureties, if the defendants should recover judgment, to the effect that the plaintiff would pay all costs which might be awarded to the defendants. And if the plaintiff shall fail to pay, as it is probable it may, because of its insolvency, then, according to this section, the defendants may have an ample remedy against the sureties upon the undertaking. That is the provision that has been made in their favor, and it is under that, if they can secure indemnity at all, that they must proceed for the recovery of these costs.

The order, therefore, was right and it should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., concurred.

Brady, J.

(dissenting):

An order of arrest appears to have been granted in this case, and Theodore Heilman and Emel Carlebach were the sureties on the undertaking given on obtaining the order.

On March 24, 1885, the complaint was dismissed on the default of the plaintiff to appear, and judgment was taken against it in April following. In November, 1885, proceedings were commenced by the sureties to set aside the default, the attorney representing them, and who made the application, affirming that he was acquainted with the facts in the case, and verily believed it could be successfully prosecuted. The result was an order that the motion be so far granted as to permit the sureties to try the issue raised by the pleadings upon certain conditions. Messrs. Seligman were, by the order, substituted for the plaintiff’s attorney, and they noticed the cause for trial as attorneys for the plaintiff and sureties. The trial resulted in a judgment for the plaintiff, which, on appeal, was reversed by the General Term and a new trial ordered; and the respondents having appealed to the Court of Appeals by their attorneys, judgment absolute was directed in favor of the defendants, which was duly made the judgment of this court, and the costs taxed at $354.59, being those which accrued from the time of the order granting the sureties leave to try the issue. Upon these facts the defendants made an application for an order directing the sureties to pay the costs of this action, and that an execution should issue against them on the judgment for costs just mentioned.

The learned justice before whom the motion was argued thought that, under section 3247 of the Code, the motion could not be granted. His view was that the sureties were neither plaintiffs nor transí errees, and that the action was not brought or continued by any other person beneficially interested therein. It is trne that the sureties were not original parties. It is also true that the cause of action, if any existed, was not transferred to them; but it seems to be an erroneous view that they were not beneficially interested in the cause of action. The learned justice said, in the course of his opinion, that the plaintiff commenced the action for its own benefit and that the sureties would receive no advantage if the plaintiff had succeeded. This is an error. If the plaintiff had succeeded, the plaintiff being insolvent, they would have been protected by the judgment in its favor; and it was with that design the application was made when they applied for leave to prosecute it. As before suggested, it was stated by one of the attorneys for the sureties that he was aquainted with the facts of the case and verily believed it could be legally prosecuted.

There is little room for doubt that, if the action had been successful, the sureties, on a proper application, would have been protected in reference to any responsibility assumed by them by an appropriation of so much of the judgment as was necessary for that purpose. They were beneficially interested, therefore, in the prosecution of the action, and being beneficially interested were clearly liable for the costs which accrued from the time they took charge of and continued the controversy.

In Ward v. Roy (69 N. Y., 96) it was decided that in an action brought in the name of another by an assignee of any right of action, or by any person beneficially interested in the recovery in such action, such assignee or person would be liable for the costs. And it was then said, resting upon authority, that when an action has been virtually carried on by a creditor in the name of the receiver, he has been held liable, and justly so. In this case the plaintiff appears to have suffered a default, and the sureties, apparently in hostility to its act and alleging that it was insolvent, made application for leave to prosecute, and on an assertion that success could be attained. Section 3247 of the Code expressly provides that where the action is brought in the name of another by a transferree of the cause of action or by any other person who is beneficially interested, he should be liable for the costs that may be awarded against the plaintiff in name. And this was clearly intended to include the person who, after the cause of action was commenced-and was substantially abandoned by the plaintiff, interposes as a substitute insisting upon the validity of the cause of action set forth in the complaint. And it is equally clear that in any action marked by such circumstances as have been disclosed affecting this case, the sureties are, for the purposes of the action or its continuance, to be justly and properly regarded as beneficially interested. If this be not so, then there is no person from whom the costs can be collected, because it is manifest that the plaintiff had nothing whatever to do with the proceedings which originated with and were conducted by the sureties. No such construction as this should be put upon section 3247 of the Code unless it was absolutely compulsory, inasmuch as it Avould cause injustice' by depriving the successful party of the costs awarded and which were intended should be paid by the unsuccessful litigant.

For these reasons the order appealed from should be reversed^ with ten dollars costs, and the motion granted.

Order affirmed, with ten dollars costs and disbursements.