author: Parker, J.: Bookes, J.:

text:
    PETER E. N. DECKER, Respondent, v. FRANK F. SALTSMAN and another, Administrators, Etc., Appellants.

      Bounties — contracts in relation to — void as against public policy — Complaint— aumnd/ment of, at trial.

    In August, 1864, the son of John Saltsman, the defendant’s intestate, being liable to be drafted, Saltsman entered into an agreement with the plaintiff, whereby he agreed to pay him $500, and that he, the plaintiff, should have all the county and town bounties that his son or any substitute he should procure, would be entitled to, if he, the plaintiff, would furnish a substitute for his son. The plaintiff furnished the substitute and received from the defendant $500, and the bounty which the county was then paying. Subsequently the town passed a resolution to pay $425 to certain volunteers and substitutes, among whom was the substitute furnished by plaintiff. Saltsman obtained from the town authorities $100 of this bounty, to recover which, this action was brought against him for money had and received for use of the plaintiff. Held, (1.) that no one but the substitute or his assignee was entitled to the bounty. (2.) That the claim, at the time of the agreement, was no more than a mere contingent possibility, not coupled with an interest, and hence incapable of being sold and assigned. (3.) That the agreement between the plaintiff and Saltsman, in so far as it related to bounties thereafter to be voted and offered, was void as against public policy. (4.) That the plaintiff was not entitled to recover.
    The complaint was for money had and received by the defendant, to the plaintiff’s use. At the trial, plaintiff was allowed to prove an assignment from the substitute, of his claim to the bounty. Held, that the evidence was inadmissible, as it tended to show a new and independent- cause of action not set out in the complaint.

      Barber v. Marble (2 N. Y. S. C. R., 114, and Carver v. Cheque, 46 Barb., 507) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, at the trial of the cause in the County Court of Cortland county.
    This action was originally brought in a Justice’s Court, and came to the County Court by appeal, where it was retried, and a verdict given for the plaintiff for $107. The defendant appealed to the General Term from an order denying a motion for a new trial, upon a case and exceptions, where the order was reversed and a new trial ordered. The following opinion was delivered by Parker, J., in which the facts of the case are stated:
   Parker, J.:

This action was originally brought in a Justice’s Court, and came to the County Court of Cortland county by appeal, where it was retried and a verdict given for $107 for the plaintiff. A motion was made for a new trial, upon a case and exceptions, which was denied, and, from the order denying the motion, an appeal to this court is taken.

The complaint is for money had and received by defendant, to plaintiff’s use, and the facts relied upon by plaintiff are as follows:

In August, 1864, the defendant’s son being liable to be drafted, under the call of the President for 500,000 men, the defendant entered into an agreement with the plaintiff, whereby he agreed to pay him $500, and that he (the plaintiff) should have all the county and town bounties that his son, or any substitute he should procure, would be entitled to, if he (the plaintiff) would furnish and put into the service a substitute for his son, which would clear him from both the United States and the State militia draft. The plaintiff did furnish the substitute for three years’ service, or during the war, who was regularly enrolled, and was credited to the town of Virgil, in the county of Cortland, where the defendant and his son resided. The defendant paid the plaintiff the $500, and the plaintiff obtained the county bounty of $500, which was then being paid for volunteers and substitutes. Subsequently, and on the 10th of September, 1864, the town of Virgil, at a special town meeting, passed the following resolution :

Resoloed, That we pay the sum of $425 to each volunteer and substitute who have or shall enlist, and be credited to the town of Virgil, upon the quota of said town, under the last call of the President for 500,000 men, and who have or shall be mustered into the United States service.

On the 10th of November following, the defendant presented to the town board, a claim “ for $100 balance on town bounty for three years’ man, furnished as a substitute,” which claim was paid out of the moneys voted on the tenth day of September, as above stated. The plaintiff, claiming that he was entitled to the town bounty, afterward demanded the $100 of the defendant, and on his refusal to pay it over to him, brought this suit.

Neither of the parties to this action had any claim whatever upon this town bounty; their arrangement was not, in any respect, based upon the faith of it. It had not, at the time of such arrangement been voted, nor, so far as appears, even contemplated. By the terms and spirit of the resolution, it was provided for the volunteer or substitute who had enlisted or should enlist, and be credited to the town. No one but West, the substitute, or his assignee, therefore, was entitled to it.

One hundred dollars of this bounty thus belonging to West, the defendant obtained from the town authorities. Granting that the terms and intent even of the agreement between the parties, included this among the bounties which the defendant agreed the plaintiff should have, the question arises, what is the effect of such agreement in regard to the bounty in question %

Manifestly, it did not confer upon the plaintiff any present or prospective right to that bounty—both because the bounty did not, when created, become the property of the defendant, and because if it had, it being at the time of the arrangement no existing right or property, but a mere contingent possibility, not coupled with an interest, it was incapable of being sold. And not only was there no property in the bounty transferred to the plaintiff, but the agreement did not, and could not operate to bind the defendant to pay over the moneys received by him from the town authorities, on account of the bounties. Even if the agreement can be construed to intend such effect, still I think what Judge Co wen said, in Munsell v. Lewis correct, when applied to parties situated as these were. After adverting to the proposition, that, although a man cannot assign moneys to be recovered for a personal tort “eonomine” yet he may bind himself to pay them when received by him. He says: “ But I deny that a man may traffic even to that extent in the charity of his neighbors or the prospective bounty of his government.”

Without questioning the modified doctrine held in Carver v. Creque, that where a recruit enlisted in anticipation of the bounty then about to be voted, and in the expectation that it would be realized by him, he had an equitable right to it, as subsequently voted; which right he could sell and transfer before the vote was taken, so that when the proceedings ripened into a legal claim in his favor against the town for the amount of the bounty, it rested as such in the assignee. Still I think that, as. between these parties, both outsiders, having no connection with or relation to, the bounty, either as being the persons for whom it was intended, or assignees or transferrees of such persons, the more stringent doctrine of Judge Oowen applicable.

A contract between such persons, that as between the two, one shall be entitled to the bounty, if granted, to the exclusion of the other, must be entirely nugatory; for besides the objection that neither will have any interest as is known to each, in the bounty— the subject-matter of the contract—if granted, it is against public policy to permit such gambling contracts to be made between outsiders, in reference to soldiers’ bounties thereafter to be voted and offered, not only as tending to corrupt influences in procuring them to be offered, but also as tending to deprive the persons for whom they were intended, of the due benefit of them. The contract, as claimed by the plaintiff, appropriates the then existing and all prospective bounties, offered and to be offered to the soldier who should enlist, and which then belonged or would belong to West, the substitute, by an agreement of the parties, to the plaintiff. It does not contemplate a purchase by defendant from West, of the bounty, for the purpose of handing it over to plaintiff, but proceeds upon the idea of an independent appropriation of it by these parties, without further right to it than should accrue to them, or one of them, upon its being voted. It involves, if carried out, a palpable invasion of the soldiers’ rights, and perversion of the objects of those who should vote the bounty. Both because the contract is against public policy, and because the subject-matter of it is not capable of being asssigned, nor made the subject of an agreement to assign, no cause of action was shown against the defendant.

In the language of Judge Cowes, in Munsell v. Lewis (supra), “A simple expectancy in which the assignor has no interest and which is unpurchasable, can neither be assigned nor could a contract for future assignment, be valid. A mere jus preGa/rvum, a right resting in courtesy, is no more a matter of bargain than the virtue from which it emanates.”

The order appealed from should be reversed, and a new trial in the County Court granted, with costs to abide the event.

In March, 1869, at the trial of the cause in the County Court, an order was made, allowing the plaintiff to amend the complaint, by inserting “ such averments as are necessary to support the proof that the plaintiff, before the commencement of this action, purchased and took an assignment of the bounty money.”

The General Term, in July, 1869, reversed this order.

In September, 1870, the case was again tried in the County Court, and a verdict rendered for the plaintiff, for $138.50.

In November, 1871, the General Term reversed the judgment and ordered a new trial, on the ground that there was no privity of contract shown between the plaintiff or his assignee and the defendant, as to the money received by the defendant from the town.

In March, 1872, the case was again tried, and a verdict rendered for the plaintiff, for $148.42.

At this trial, the plaintiff put in evidence a written assignment from West, of his claim to the bounty, and also introduced evidence to show that defendant “ agreed that if he drew any of the money that the substitute would be entitled to, he would pay it over.”

The original defendant, John Saltsman, died March 8, 1872, and, in July, 1872, an order was made continuing the action in the name and on behalf of the present defendants, administrators of John Saltsman, deceased.

M. M. Waters, for the appellant.

Ballard & Warren, for the respondent.

Bookes, J.:

This action originated in Justice’s Court, and came into the County Court of Cortland county, by appeal, in which latter court it has been three times tried. It appears from the opinion of Mr. Justice Parker, that a new trial was granted after the first trial in the County Court, on the ground that the plaintiff showed no right or title to the money claimed by him in the action. He held, first, that there was no privity of contract shown between the parties ; second, that the claim, at the time of the alleged agreement with the defendant, was no more than a mere contingent possibility, not coupled with an interest, and hence was incapable of being sold and transferred; and third, that the alleged agreement between the parties, was against public policy, and void. This opinion was adopted by the court and became the law of the case, as applicable to the facts proved on the first trial; and, doubtless, it controlled the decision after the second trial. To the decision of the court thus pronounced, at two General Terms, we owe respectful obedience.

Unless, therefore, the case now before us, is different from that considered by Mr. Justice Parker, in his opinion, we must abide by the conclusions there declared. The only difference claimed to exist between the case now before us, and that formerly before the court, is this: that an assignment of the claim is now proved, from West to the plaintiff. On the former trial (the first one) this transfer was not shown ; and it is supposed by the plaintiff’s counsel, that this evidence relieves the case from the difficulties in the way of a recovery, stated by Mr. Justice Parker. But here arises a question, raised by the objection to this evidence. The complaint is, simply, for money had and received by the defendant to plaintiff’s use. There is no allegation, in the complaint, that the claim originally belonged to West, and that he sold and transferred it to the plaintiff. The plaintiff does not claim, in the complaint, as the assignee of West. If he claimed as the assignee of West, he should have alleged a cause of action by West against the defendant, and a transfer thereof by West to himself. The complaint contains no such averments, but is a simple complaint for money had and received. Under the complaint, it was not competent for the plaintiff to make a case as assignee, through a sale and transfer from West to himself, of the cause of action.

Were this a mere variance between the pleading and the proof, an amendment might have been allowed in the court below, and might, doubtless, yet be allowed by this court on the appeal, to meet and answer the objection. But it is more than a mere variance between the pleading and the proof. The evidence tended to show an independent and different cause of action from that stated in the complaint; a cause of action in favor of West assigned to the plaintiff; not a cause of action in favor of the plaintiff for money had and received to his use. The objection was distinctly taken, that the evidence was inadmissible under the complaint. There was no averment that the plaintiff claimed the money as assignee, and the evidence of the assignment by West to him, was improperly received.

Nor can its introduction be deemed immaterial and harmless. The judge laid great stress on this evidence in his charge to the jury; indeed, he gave the jury to understand, that without evidence of a transfer of the claim by West, to the plaintiff, there could be no recovery. It seems very plain, that on the complaint which presents a claim merely “for money which defendant had of plaintiff for defendants own use ” (this is the language of the pleading), the plaintiff cannot be allowed to recover on an assigned demand. The recovery on a claim, assigned by West to the plaintiff, was unauthorized in this case. This difficulty stands directly in the way of a recovery in this action, if it be necessary to show a transfer of the claim from West to the plaintiff. This' position presupposes that West, the substitute, was entitled to the bounty money, $100 of which, the defendant had obtained. So this court held. Judge Parker says: “No one but West, the substitute, or his assignee, was entitled to it. One hundred dollars of this bounty, thus belonging to West, the defendant obtained from the town authorities.” It follows, therefore, that the plaintiff must base his action on a transfer of the claim from West to himself. This, he omitted to do. No such right of action is stated or . suggested in the complaint.

We are cited to the case of Barber v. Marble, as an authority in favor of allowing an amendment to meet the difficulty above considered. That case differs from this in many, of its facts; one of which is (and this • is a very important one), that the case as made on the evidence, was substantially embraced within the. issues presented by the pleadings. In this view, of course, an amendment was properly allowed to conform the pleading to the. facts proved. It was not introducing a new and different cause of action. And, here again we are met by the former decision of this court, in this case, reviewing an order of the county court, which allowed the precise amendment now desired. That decision, made, at a recent term of this court, in this case, must now be observed. On what ground that decision was made, we are uninformed, as no opinion was written; but we must, I think, infer that the order was reversed on the ground that an amendment of the complaint, setting up a new cause of action, was improper at that stage of the case.

Second. But according to the opinion of Mr. Justice Parker, which, having been adopted by this court, as above stated, must now be accepted as the law of this case, there are other reasons why the plaintiff cannot recover in this action. It was decided in this case on the former appeal, that the plaintiff could not recover on the agreement made between the plaintiff and defendant, to the effect that the former should have all the bounty moneys to which West, the substitute, should be entitled. Mr. Justice Parker says: “ Granting that the .terms and intent of the agreement between the parties, included this among the bounties which the defendant agreed the plaintiff should have, the question arises, what is the effect of such agreement, in regard to the bounty in question ? ” He then proceeds to consider this question at length, and comes to the conclusion stated in the former part of this opinion, to wit: that the p.1 aim at the time of the alleged agreement, was a mere contingent possibility, not coupled with an interest, and hence was incapable of being sold; also, that the alleged agreement was against public policy, and void. Those conclusions we do not now propose to re-examine, inasmuch as they have already received the sanction of this court at two General Terms, Even were we disposed to question the soundness of these conclusions, the concurrence in opinion by those learned judges who then composed the court, should stand as against our own on this subsequent presentation of the same case. It should be added here, that some of the views of the court, as expressed in the opinion of Mr. Justice Parker, are supported by the more recent decision in Butterworth v. Gould, and in Osby v. Conant.

It seems, therefore, that the plaintiff failed to establish a cause of action, and the County Court should have directed judgment for the defendant.

Judgment reversed, new trial ordered, costs to abide the event.

Miller, P. J., and Boardman, J., concurred.

Judgment reversed, new trial ordered, costs to abide the event.

       1st Parsons on Contracts, 523; 1st Pet., 193-213.

       4 Hill, 641, 642.

       46 Barb., 507; affirmed, 48 N. Y., 385.

       30 Barb., 389; 18 How., 506, on p. 508.

       2 N. Y. S. C. Rep., 114.

       41 N. Y., 450.

       5 Lans., 310.


source: Caselaw Access Project

license: Public Domain

text:
    STEPHEN B. BARTEAU, Executor, Etc., of JOSEPH E. ALTHOUSE, Deceased, Respondent, v. THE PHŒNIX MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Policy of insw'ance— Wa/n'ants— False statements—Answers of assured — how construed.

    This action was brought upon a policy of insurance, issued by the defendant upon the life of plaintiff’s testator. The policy was issued July 29th, 1867, and Althouse died June 14th, 1868, of paralysis. In the application for insurance, signed by Althouse, it was declared that his answers to the questions thereby propounded to him, were fair and true ; and that any untrue or fraudulent answers or suppressions of fact, should render the policy null and void. Among the questions put to him was this: 11 Whether he ever had paralysis ?” to which he answered, “No.” Held, reversing a judgment in favor of plaintiff, entered upon the verdict of a jury, that, as the evidence in the case proved that, previous to the issuing of the policy, he had had two attacks of paralysis, both of which were, in point of fact, of a seriously alarming character, and were so considered by his physician, his neighbors and himself," this statement in the application was manifestly untrue ; that the policy issued upon this application, containing this false statement, was void, and the plaintiff was not entitled to recover.
    The statement in the application should be interpreted with fairness to the assured. If, in fact, he never had more than a temporary illness or ailment, merely indicating the disease in some of its symptoms, but of no pronounced type, his answer should be received and construed with reference to that state of facts. So it is a fair rule of interpretation, that the inquiries put to the applicant for.life insurance, are deemed to relate “ to matters which affect the general health and the continuance of life,” and not to “ temporary and occasional physical disturbances, the result of accidental causes, to which all men are more or less subject.”

    These are not supposed to be in the minds of the parties.
    On the other hand, when the party is interrogated in regard to a disease of well-marked symptoms, alarming in character, which all well-informed persons regard as affepting the general health, and as threatening the continuance of life from tire danger of its recurrence, he is hound to speak and to state the exact truth.
    Appeal from a judgment entered in favor of the plaintiff, upon the verdict of a jury, and from an order denying a motion for a new trial made on the judge’s minutes, and from an order denying a motion for a new trial, made on the ground of newly-discovered evidence.
    The order denying a motion for a new trial, on the ground of newly-discovered evidence, was affirmed, on the ground that the evidence was wholly cumulative, and also because, if due diligence had been used, the evidence could have been discovered and produced upon the trial.

      H. W. McClellan, tor the appellant.

      JR. E. Andrews and John Cadman, for the respondent.

       MS. opinion of Allen, J., in Higbie, Ex’r., v. Ger. Mu. L. Ins. Co., reported in Memoranda, 53 N. Y., 603.

   Opinion by Bocees, J.

Miller, P. J., and Boardman, J., concurred.

Judgment reversed and new trial ordered, costs to abide the event. The order denying motion for new trial, on the ground of newly-discovered evidence, affirmed, with costs.


text:
    WILLIAM H. DARROW, Respondent, v. HARVEY NORTHROP, Appellant.

      Agency—Letter of witness—inconsistent with his testimony—admissible in evidence— Silence—evidence of truth of facts stated.

    Plaintiff sued defendant, claiming to have sold him a quantity of hops. The defendant alleged that he bought the hops as agent of H. & 0., of N. T. ; that plaintiff knew he was such" agent; that the hops were shipped to H. & 0. with plaintiff’s knowledge and assent, and were sold by them, and that, subsequently, they failed without having paid for them. The referee found that the sale was made to the defendant as principal and not as agent of H. & 0. Held, that the evidence in the case was sufficient to authorize the referee so to find.
    ■ A letter was written by the defendant to a third person, containing declarations touching the relations existing between himself, and the plaintiff as to the hops in suit, which.were inconsistent with his testimony given upon the trial. Meld, that the letter was properly received in evidence on the trial.
    After the sale of the hops by H. & 0., the defendant inclosed an account of the sale to plaintiff, and disclaimed any personal responsibilities for the proceeds, telling plaintiff he must look to H. & C. for his pay, as he, defendant, acted only as then agent; to this letter plaintiff paid no attention. On the trial, it was claimed that the plaintiff thereby ratified and acquiesced in the claim of the defendant, who was thereby released from any liability to plaintiff. Meld, that the mere statement of the proposition would seem to be its sufficient refutation. It is not possible that one can release himself from the obligation of a valid contract, by telling the other party that he must look to some third person for its fulfillment, or that the contract was one of agency and not made by him as principal. The silence of plaintiff might be construed as some evidence of the truth of the facts stated, but by no possibility could it convert a principal into an agent, upon the theory of ratification, acquiescence or estoppel.
    Appeal from a judgment in favor of the plaintiff, entered upon the report'of a referee.

      Jl. Barclay, for the appellant.

      N. Foote, for the respondent.
   Opinion by Boardman, J.

Present — Miller, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs.


text:
    JOHN A. VAN ETTEN, Respondent, v. ONA TROUDDEN and another, Appellants.

      Mote—collateral security to—when extends time of payment of—Error—when not ground for new trial.

    This action was brought against the defendants, as maker and indorser of a promissory note. The answer set up payment, that the plaintiff had accepted a third party (the firm of J. A. Charlton & Co.) as principal debtor for the note, and extended the time of payment with such third party, without defendants’ consent or knowledge. The plaintiff received from the firm of Charlton & Co., a post-dated check, and, subsequently, a note for the amount of the note in suit, but the jury found that they were received as collateral security only, and that plaintiff did not accept the firm as principal debtor.
    At the trial, the court charged that “the mere giving or taking of a check or note by a third party, as collateral, does not of itself extend the time of the principal debtor.” Held, that the charge, as applicable to the case, was correct.

    The defendant’s counsel requested the court to charge the jury, that if they should find that the plaintiff agreed to accept the firm of Charlton & Co. for the payment of the note in suit, that firm having the defendant Troudden’s money to that amount, such agreement was a payment of the note, and the court refused so to charge. Held, that it erred in so doing; that though the agreement, if made, would not have been technically a payment, yet it would have discharged the debt by way of accord and satisfaction ;  but that, as it appeared that the question whether or not such an agreement had been made, had been fairly presented to the jury in the charge of the judge, and they had answered it in the negative, that the judgment would not be reversed.
    Motion for a new trial upon a case and exceptions, ordered to be heard in the first instance at the General Term, and an appeal from an order denying a motion for a new trial, made upon the judge’s minutes.

      J. E. Van Etten, for the respondent.

      A. SehoonmaTcer, for the appellants.

       Cary v. White, 52 N. Y., 138.

       Davis v. Spencer, 24 N. Y., 386, 391 ; Pratt v. Foote, 9 Id., 463.

   Opinion by Bookes, J.

Present — Miller, P. J., Bookes and Boardman, JJ.

Order affirmed and judgment ordered for plaintiff, with costs.


text:
    JULIA ANN FREEMAN, Appellant, v. ALBERT BARBER, Respondent.

      Zand owned by Imsband and wife—action for damages to—both must join— Bemiititur.

    Plaintiff brought this action to recover for the occupation of certain land, and for waste committed thereon. Upon the trial, it appeared that the title to the land was in the husband and wife, jointly. Held, that she could not recover; that both must join in the action.

    In an action heretofore brought, in this court, in which the plaintiff and her husband were defendants, it was decided at the General Term, reversing the judgment of a referee, that they were entitled to a life estate in the land, for damages to which, this action was brought, and to a deed conveying the same to her and her husband, to have and to hold the same so long as they, or either of them, should live. This judgment was affirmed in the Court of Appeals,  and judgement absolute ordered for the defendants; on filing the remittitur, an order was made at the Special Term directing the land to be conveyed to Julia Ann Freeman, the plaintiff, for her natural life. Held, that in so far as this order directed her to receive a greater or different interest than that authorized by the judgment of the General Term, it was of no effect, and not binding on the parties.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      H. Ballard and H. Q. Miner, for the appellant.

      M. M. Waters, for the respondent.

         Farmers’ and Mechanics’ Bank v. Gregory, et al., 49 Barb., 155; Goelet v Gori, 31 Barb., 314; Torrey v. Torrey, 14 N. Y., 430.

       Freeman v. Freeman, 51 Barb., 312.

       Freeman v. Freeman, 43 N. Y., 35.

   Opinion by Miller, P. J.

Present—Miller, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs.


text:
    JAMES VAN BUREN, Respondent, v. RICHARD STOKES and another, Appellants.

      Promissory note—nm/ry.

    This action was brought upon a promissory note. The answers set up usury as a defense. The note was made by the defendant, Stokes, to raise money upon. The bank having refused to discount it, he applied to one Hill, who offered to discount it for a shave of six dollars, to which the defendant agreed. Hill then took the note and soon returned with plaintiff’s check for the amount of the note, less legal discount, payable to the order of Stokes, who took the check to the bank, received the money, and paid Hill the six dollars according to agreement. Plaintiff had no knowledge that Hill received or was to receive anything from Stokes, nor did plaintiff receive or agree to receive the six dollars, or any part thereof. Held, that the plaintiff was entitled to recover.
    The cases of Elmer v. Oakley,

       Condit v. Baldwin,

       and Bell v. Day,

       followed.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      J. V. V. Kenyon, for the appellants.

      JD. K. Keyser, cmd A. Schoonmaker, Jr., for the respondent.

       3 Lans., 34.

       21 N. Y., 219.

       32 N. Y., 165.

   Opinion by Boardman, J.

Present—Miller, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs.


text:
    BYRON MARKS, Respondent, v. HIRAM I. KING, Appellant.

      Witness—what evidence allowed to impair his statement.

    This action was brought against the defendant, as indorser of a promissory note. The defense was, that the indorsement was a forgery. At the trial, the defendant offered to prove that a witness, called by the plaintiff, had been instrumental in getting one Bell indicted for the forgery of the note in suit, claiming that such evidence was admissible on the ground, that, if he was so instrumental, it militated against and impaired his opinion, previously given in evidence, that the indorsement was genuine. Held, that the evidence was properly excluded. He might have doubted whether the defendant would swear before the grand jury that the indorsement was not his, and might have desired to put him to the test of his oath; and, with a view to try the defendant’s sincerity, in his assertion that his name on the note was a forgery, he might have aided in procuring his attendance before the grand jury, and thus have been, in fact, instrumental in obtaining the indictment, notwithstanding his settled conviction and full belief that the indorsement was genuine.
    Motion for a new trial on a case and exceptions ordered to be heard in the first instance at the General Term. In addition to what is stated above, the General Term examined and approved the action of the court below, in receiving in evidence certain drafts and checks; but its decision was based entirely upon the facts of the case, and it is not considered of sufficient general interest to justify its publication.

      C. W. Hotchkiss, for the respondent.

      Chapman <fs Martin, for the appellant.
   Opinion by Bocees, J.

Miller, P. J., and Boardman, J., concurred.

Judgment ordered for plaintiff.


text:
    JAMES KERSLAKE, Respondent, v. CYRUS SCHOONMAKER, Appellant.

      Agent — liability of principal for acts of, after termination of agency — Referee— power of, to receive evidence and reserve Ms decisions as to objections to.

    In this action, brought for goods sold and delivered, it appeared that one Boyce had, for a long time, acted as the agent of defendant in carrying on the lumber business, and that, after the termination of his agency, the plaintiff, who had received no notice that he had ceased to be defendant’s agent, sold the lumber to him for the purchase-price of which this suit was brought. Held,, that defendant was liable.
    At the trial, evidence objected to by the defendant, was received by the referee, subject to his retaining or rejecting it at the conclusion of the case. Held, that, as the evidence so received was competent, this decision could not operate injuriously, or in any way affect the defendant’s rights; it must be considered the same as if the evidence had been admitted absolutely, which would have been entirely proper.
    The decision of this question was not necessary for a proper disposition of the case of Peck v. Yorks, and the cases therein cited and relied upon (Clussman v. Merkel,

       Brooks v. Christopher,

      McKnigkt v. Dunlop,
      ) do not sustain the rule laid down.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Richard EH. Finch, for the appellant.

      Martini I. Townsend and George Day, fbr the respondent.

       47 Barb., 131.

       3 Bosw., 402.

       5 Duer, 216.

       1 Seld., 537.

   Opinion by Miller, P. J.

Present—Miller, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs.


text:
    HENRY McGRATH, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Stare decisis.

    Appeal from an order, denying defendant’s motion for a new trial on the judge’s minutes after verdict for plaintiff.
    An appeal ivas taken in this case to the General Term, from a judgment rendered for plaintiff on a former trial, on the hearing of which appeal, the judgment was reversed, and a new trial was ordered, on the ground that the judge erred in his charge to the jury; the court holding, however, that the case was a proper one for the jury on the evidence.
    On this appeal, the court held that the evidence was substantially the same as on the former trial; that the error on which the new trial had been granted before, did not exist in the case made on this appeal, and it having been decided on the former appeal, that, on the evidence, the case should be submitted to the jury, the court would not review that question; and that the.damages were not so large as to justify the court holding them to be excessive.

      Matthew Hale, for the appellant.

      Amasa J. Parker, for the respondent.
   Opinion by Bocees, J.

Present — Miller, P. J., and Bocees and Boardman, JJ.

Order affirmed and judgment ordered for plaintiff on the verdict.


text:
    JOHN B. SLAWSON, Respondent, v. THE ALBANY RAILWAY, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought to recover the price of certain fare-boxes furnished by the plaintiff to the defendant. The defense was, that the boxes were furnished under a. special agreement, which the plaintiff had failed to carry out. The referee found in favor of the plaintiff, and from the judgment entered upon his report, this appeal was taken. The General Term held that the evidence showed that the plaintiff, had always been ready and willing to perform the contract on his part, and had been prevented from so doing by the acts and neglect of the defendant, and that the plaintiff was entitled to recover; and that the measure of damages adopted by the referee, viz., the contract-price of the boxes, was proper, and affirmed the judgment.

      Matthew Hale, for the appellant.

      Grewoille Tremain, for the respondent.
   Opinion by Boardman J.

Present—Miller, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs.


text:
    FRANK S. ATWELL, Administrator, Etc., or ISAIAH SCOTT, Deceased, Respondent, v. CHARLES K. BROWN, Survivor, Etc., Appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The defendant, upon this appeal, insisted that there was not sufficient evidence to sustain the findings of the referee. The General Term, after a review of the evidence, decided that the findings were authorized by the evidence, and that the judgment was right, and should be affirmed.

      John B. Gale, for the • appellant.

      Mr. Christie, for the respondent.
   Opinion by Boardman, J.

Present—Miller, P. J., Bookes and Boardman, JJ.

Judgment affirmed, with costs.


text:
    DANIEL DONOVAN and JAMES SWEENEY, Appellants, v. CYRUS L. WOODRUFF, Respondent.
    Appeal from a judgment of nonsuit, directed by the court. The General Term, after an examination of the evidence, was of opinion that the case should have been submitted to the jury.

      John É. Yam Etten, for the appellants.

      M. Sehoonmaker, for the respondent.'
   Opinion by Bookes, J.

Present'—Miller, P. J., and Bookes and Boardman, JJ.

Judgment reversed, new trial ordered, costs to abide the event.


author: Barnard, J.:

text:
    OSCAR F. COMPTON, Appellant, v. LEANDER B. SHAW, Respondent.

      Warehouseman — liability of, for chan'ges on freight stored with him by common-can'iiei' in case of unauthorized delw&iy of it by him to consignee.

    A warehouseman, with whom freight, on which the charge for transportation is unpaid, is stored by a common-carrier, and who, without the knowledge or consent of the common-carrier, delivers the property to the consignee, is liable to the common-carrier for the amount of his charges.
    Appeal from a judgment, dismissing the complaint.
    The plaintiff was a boat owner, and received, as a common-carrier, a quantity of grain, shipped from Fort Plain, and consigned to the Security Insurance Company of New .York.
    Part of the grain was delivered-to the consignee, and the balance was stored by the plaintiff, in the warehouse of the defendant, the plaintiff, at the same time, taking a receipt therefor. Part of the plaintiff’s freight and charges had not been paid.
    The defendant subsequently delivered the grain to the brokers of the consignee, and this action was brought to recover $482.50, for which plaintiff claimed to have a lien on the grain, this sum being the amount of his freight and charges thereon.

      G. D. Landon, for the appellant.

      H. G. Place, for the respondent.
   Barnard, J.:

I think the court erred in nonsuiting the plaintiff. He had, as a common-carrier, transported a cargo of wheat from Fort Plain to the city of New York. The wheat was consigned to the Security Insurance Company. Part of the cargo was delivered to the consigned, and the plaintiff, being unable to obtain his freight and advances on the wheat, deposited the same in the defendant’s warehouses, and took a receipt therefor from defendant, in his own name. This act was done with the distinct understanding between the plaintiff and one Buckout, who acted for the insurance company, that it was done to save plaintiff’s lien upon the property. The defendant, without plaintiff’s knowledge or consent, delivered the property to Hoyt & Co., who were brokers for the insurance company. The plaintiff only seeks to recover the value of his special interest in the property, being the amount of such freight and advance charges. I see no defense to his claim. He was in possession of the property, with a lien upon it, and having a right to retain the property therefor, as against the owner. By the delivery to the defendant, as warehouseman, and by the receipt he took, the plaintiff was still, in law, in the possession of the property ; and the defendant, by delivery thereof to Hoyt, was guilty of a conversion, and must answer to plaintiff for his interest in the property.

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

Present—Barnard, P. 3"., Tappen and Talcott, 3J. -

Judgment reversed and new trial granted, costs to abide the event.


text:
    CHARLOTTE E. BROWN, Appellant, v. HENRY BROWN, Respondent.

      Absolute Divorce—when court has no power to open decree of— Code, § 135, suh. 5.
    The court has no power to open a decree, granting an absolute divorce, upon proof that defendant did not receive any copy summons or notice of publication, and upon affidavits showing a defense.
    Section 135, subdivision 5, of the Code, deprives the court of this power.
    Appeal from an order, vacating a judgment in favor of the plaintiff, and allowing the defendant to answer and defend.
    The facts appear in the opinion.

      QTia/rles W. Papión, for the appellant.

      H. G. Place, for the respondent.
   Barnard, J.:

This is an action for a divorce. The summons was served hy publication. Shortly after the decree was entered, granting an absolute divorce in favor of plaintiff, the defendant, upon proof that he did not receive any copy summons by mail, or any notice of the publication thereof, and upon affidavits showing a defense, applied to the court for leave to answer, and the court made an order opening the judgment, and permitting defendant to defend ; from this order the plaintiff appeals.

By section 135, subdivision 5, of the Code, it is provided that the defendant against whom publication is ordered, or his representatives, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action; and, except m an- action for di/oorce, may, in like manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as may be just.” This section deprives the court of the power to grant the order appealed from. In all actions, except for divorce, after judgment, the defendant may be allowed to defend, within one year after notice of the judgment, and within seven years after its rendition.

The legislature, doubtless, intended to provide.for new relations under the judgment — another marriage and birth of children. The character of the person who should marry such divorced plaintiff, and the legitimacy of his or her children, born of such a marriage, are protected by this statute. This exception as to divorce, was not in the Code' of 1848. It was first inserted in 1849, and has never been altered since

The order should be reversed, and the motion denied, without costs.

Present—Barnard, P. J., Tafpen and Talcott, JJ.

Order reversed, and motion denied, without costs.

       Section 114 Code, 1848.

       Code of 1849, section 135, subdivision 6.


author: Taloott, J.:

text:
    SOPHIA C. DAVIS, Apelllant, v. WILLIAM DAVIS, Respondent.

      Husband and Wife — The fact that they cannot lime together in hcmrumy, not ground of separation -r- Mdinten/mce of wife — h/m secured—order for, when proper.

    The faet that there is no possibility of a husband and wife living together in harmony, is not ground for a legal separation.
    In such case the parties must be left to bear, as they may, the inconveniences and griefs resulting from their want of harmony and mutual quarreling.
    By the provisions of the Revised Statutes, the court is not authorized to take possession of the property of the husband through the medium of a receiver, in the first instance, but to require security for the payment of the allowance, and to sequestrate his property only in the event of his neglecting to give security, or upon his default after security has been given.
    An,order for the maintenance and support of the wife, under section 55, cannot be made, unless one of the three grounds upon which the statute authorizes a limited divorce, be established in the case.

      Atwater v. Atwater (36 How. Pr., 431), followed.
    Appeal by the plaintiff, from a judgment denying a limited divorce, and cross appeal by defendant, from such portions of the judgment, as. direct the appointment of a receiver and the allowance of temporary alimony.

      This action was brought by the plaintiff to obtain a limited divorce, on the ground of cruel and inhuman treatment. The answer denies such treatment, and alleges various acts on the part of the wife, showing her quarrelsome disposition and violent conduct.
    Various acts of violence were testified to on both sides.
    The referee, to whom it was referred to take proofs and report thereon, with his opinion, reported, that, on all occasions when violence was used by the defendant towards the person of the plaintiff, the same was provoked by the ill conduct of the plaintiff; that in the various conflicts between them, the plaintiff was the aggressor, and, when collision came, the plaintiff sought, rather than avoided it; that the defendant’s conduct was harsh and unloving, but was so far justified and provoked, as to fall short of cruelty or inhumanity; and that, as matter of law, the complaint should be dismissed, without costs to either party.
    The justice, at Special Term, held that, without interfering with the decision of the referee, there was no possibility of the parties’ living together in harmony, and for this state of facts the defendant was largely to blame, and ordered that a receiver be appointed, to whom the defendant should pay. $3,000, to be invested by the receiver, and the interest paid to the plaintiff.

      Smith c& Stanbrough, for the appellant.

      William Wickham, for the respondent.

       2 R. S., 147, § 55.

       2 R. S., p. 147.

   Taloott, J.:

This suit was instituted to procure a separation, a, mensa, et thoro, on the ground of cruel arid inhuman treatment by the defendant of the plaintiff, his wife, and upon the ground-that the defendant’s conduct had been such as to render it unsafe and improper for the plaintiff to cohabit with him.

By the consent of the parties, it was referred to a referee to hear the proofs and allegations of the parties, and to report thereon to the com’t, with his opinion. The referee heard the voluminous evidence, and reported the same tó the Special Term, together with an elaborate examination thereof, and his conclusions or opinion thereon. The opinion of the referee was to the effect, that, whenever the defendant had exhibited any violence toward the plaintiff, it liad been provoked by her, she, herself, being the aggressor; and the referee negatived the existence of the cruel and inhuman treatment alleged, or such conduct on his part as would render it unsafe and improper for the plaintiff to cohabit. with him, but expressed the opinion that the complaint should be dismissed. The justice, at the Special Term, does not reverse the decision of the referee on any question of fact, but seems to agree that the opinion of the referee is not to be disturbed upon the facts; but, instead of dismissing the complaint, the Special Term appointed a receiver, and directed the defendant to pay said receiver the sum of $3,000, to be invested, and the income or interest to be applied to the support and maintenance of the plaintiff.

Under the provisions of the Eevised Statutes, relative to limited divorces, the court is authorized, although a decree for separation be not made, to make an order for the support and maintenance of the wife and her children, or any of them, by the husband, out of his property, as the nature of the case renders suitable and proper.

It seems, however, that this is'to be done, not by taking possession, through the medium of a receiver, of the property of the husband, or any part of it, in the first instance, but to require security for the payment of the allowance; and to sequestrate the property of the husband, only, in the event of his neglecting or refusing to give the security, or upon the default of the husband and his surety, after the security is given. The judgment in this case would seem, therefore, to be erroneous, even if a judgment for an allowance, to the wife might be granted, under, section 55. The legislature did not intend to authorize the court to seize, out of the bulk of a husband’s property, in the first instance, a sum sufficient to produce the income, deemed a proper allowance for the wife, but only required him to secure the payment, permitting a sequestration of property, only, • after a default. But there is a more fundamental difficulty, under the rule settled in this department, as to the construction of the said section 55. It was held by the General Term of this department, in Atwater v. Atwater, that an order for the maintenance and support of the wife, under section 55, cannot be made, unless one of the three grounds, upon which the statute authorizes a limited divorce, be established in the case.

Those grounds are, 1. The cruel and inhuman treatment, by the husband, of his wife. 2. Such conduct on the part of the husband, towards his wife, as may render it unsafe and improper for her to cohabit with him. 3. The abandonment of the wife by the husband, and his refusal or neglect to provide for her.

The difficulty in this case, under the rule laid down in Atwater v. Atwater, (supra) is that there is no finding or adjudication by either the referee or the justice at Special Term, that either of the three grounds, upon which a separation can be authorized, exists in the case. The only thing in the nature of a finding or adjudication, upon which the judgment for separate maintenance seems to be based, is a statement in what seems to be intended as an opinion of the justice at Special Term, where he says, after declining, apparently, to come to a conclusion adverse to that of the referee, as to the failure of proof of the facts necessary to warrant a divorce, a mensa et thoro: “ But the whole case shows that whatever be the decision of this action, there is no possibility of the parties living together in harmony. Their disagreements have reached such a point that any expectation of peace between them would be unwarranted.”

This is not one of the grounds for which a legal separation by the court is warranted, and, according to the decision referred to, where such a case alone exists, the parties must be left to bear, as they may, the inconveniences and griefs resulting from their want of harmony and mutual quarreling.

The plaintiff has also appealed from the decree, and claims that a divorce should be granted. It is sufficient to say, that the testimony before the referee, as to the circumstances which transpired at the various quarrels between the parties, (and which are alleged by the plaintiff, as the grounds and evidence upon which she aslcs a decree of divorce) is in the highest degree conflicting, and the case was determined by the referee, mainly on the different credibility of the witness.

As we must follow the case of Atwater v. Atwater, before cited, the judgment of the Special Term, appealed from, is reversed, and judgment is ordered,- dismissing the complaint without costs, and without prejudice to any new suit, to he instituted hy the plaintiff against the defendant for a limited divorce.

Present—Barnard, P. J., Talcott and Tappen, JJ.

Judgment of Special Term reversed, and judgment ordered, dismissing the complaint, without costs, and without prejudice to a new suit for a limited divorce.

       2 R. S. 147, § 55.

       2 R. S. 148, § 60.

         36 How. Pr. 431; S. C. 53, Barb. 621.


author: Talcott, J.:

text:
    HENRY J. BAKER, Respondent, v. WILLIAM S. SQUIER and others, Appellants.

      Custom, of Trade — when allowed to eaplain contract— Genuineness of papm'—what evidence of, admissible—Lost paper — what efforts to find, required to allow introduction of copy in evidenee.

    A usage of the trade in which a contract is made, may be shown to explain the meaning of a particular contract, but not to contradict its plain terms.
    On the question of the genuineness of a certificate, evidence that a great number of such certificates had been received in the trade as genuine, is sufficient evidence upon which to allow .the question to go to the jury.
    On introduction of a copy of a paper in evidence, where the paper is of little value, less diligence is demanded in attempting to produce or find the original, because the circumstances aid the presumption of loss.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed hy the court.
    The facts appear in the opinion.

      Winchester Britton, for the respondent.

      George P. Andrews, for the appellants.
   Talcott, J.:

This action was brought for a refusal to receive goods, sold to the defendants by a bought- and sold note. The goods' were described in the contract, as 225 tons Kurtz forty-eight to fifty per cent carbonated soda-ash.” The ash was to be shipped from Liverpool to New York, at the rate of twenty-five tons monthly, and each shipment was to be treated as a-separate contract. The vendors notified the plaintiff of the first shipment, stating, the test is forty-eight per cent.” The vendee refused to receive the property, upon the ground that the test was only forty-eight per cent, when the contract called for forty-eight to fifty per cent.

Thereupon the vendors tendered the soda-ash, with a certificate of the test, purporting to have been issued by one Hussan & Arrot, showing the test to be forty-eight. Evidence was given on the part of the plaintiff, tending to show an established and universal custom in the trade, by which the terms, used in the contract, were understood to mean, that the soda-ash was to be of the manufacture of one Kurtz, and was to possess at least forty-eight per cent of alkali, which was to be, according to the test of certain English chemists, recognized and known in the trade, whose certificates were attached to the invoices and received as evidence of the test; and that the test of forty-eight per cent was understood to satisfy the contract. Messrs. Husson & Arrot were chemists, known to the dealers in the article, and their certificate was recognized in the trade, as a compliance with such a contract.

The defendants received the residue of the soda-ash, which arrived at Hew York by seven different shipments, upon the certificates purporting to be those of Husson & Arrot. The soda-ash, embraced in the shipment in question, after having been duly tendered to the defendants, was sold by the vendors, after due notice to the defendants; and this action is brought to recover the difference between the contract-price and the price brought at the sale. The exceptions of the defendant, to which our attention is called, relate to the proof of the custom of the trade, and to the genuineness of Husson & Arrot’s certificates.

We' think the custom was properly admitted in evidence. A person, engaged in a particular trade, is presumed to be acquainted with the usages of that trade, and to contract with reference to them. And the usage of the trade in which the contract is made, may be shown, to explain the meaning of a particular contract, but not to contradict its plain terms. The figures, forty-eight to fifty per cent, convey no meaning to a person ignorant of the subject-matter of the contract, and of the. usages of the trade in which it was made. And the evidence of the custom was to explain the meaning of those terms or figures, when used in such a contract, and did not tend to vary the import of the contract, so far as its terms were expressed.

The defendants also object, that the genuineness of the certificate of Husson & Arrot, was not proved. There is no evidence of any person, who had seen Husson & Arrot write, or had corresponded with them, but there was the evidence of several dealers in the trade, to which the contract related, to the effect that numerous of such certificates (as one witness says, thousands) had passed through their hands, and had been acted upon by them, and received in the trade, as genuine. This, we think, was sufficient evidence to go to the jury, on the subject of the genuineness of the certificate. The only remaining question, made by the defendants, grows out of the fact that a copy of the certificate of Husson & Arrot, was used on the trial, instead of the original. It appears, however, that it was customary to attach these certificates to the invoice, or bill of sale, and thus they passed into the hands of the purchaser, and were not preserved by the seller; and the witnesses in this case, were unable to trace the certificate, and some evidence was given tending to show that it was probably lost or destroyed.

Where a paper is of but little value, less diligence is demanded in attempting to produce or find the original paper, because the circumstance aids the presumption of loss. In this case, it appeared that the article to which the certificate related, had been sold, and, presumptively, that the certificate went with the invoice; and from the time which had elapsed, the article to which it related, had probably gone into general consumption. We think, therefore, that the circumstances,- together with the evidence given, afforded a sufficient presumption of the loss or destruction of the original certificate, and that" it was beyond the reach of the plaintiff.

The judgment must be affirmed.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Judgment affirmed.

       1 Greenleaf’s Ev., § 292.

       1 Greenleaf’s Ev., § 577; U. S. v. Kean, 1 McLean, 429; Burnham v. Ayer, 36 N. H., 182.


author: Tappbn, J.:

text:
    JOHN R. VERNAM, Appellant, v. SAMUEL HARRIS and CHARLES CROCKER, Respondents.

      Pa/rtmrshyp—dissolution of—Acceptance by m'editor of note of one member of— effect of.

    The defendants, while engaged, as copartners, in the business of saloon-keeping, became indebted to the plaintiff for beer purchased from him. Subsequently, the partnership was dissolved, Harris selling out his interest to Crocker, who agreed to pay the firm debts. The plaintiff, with knowledge of the dissolution, accepted Crocker’s note for the debt, upon the agreement that, if paid, it would cancel the debt, but, if not, that he should hold the firm for it. Crocker having failed to pay the debt, this suit was brought. Meld, that the plaintiff, by accepting Crocker’s note, did not discharge Harris from his liability for the firm debts ; that Harris was liable to .the plaintiff, as principal debtor, and not merely as surety of Crocker.

      Colgrove v. Tollman (2 Lans., 97) distinguished; Smith v. Rogers (17 John., 340) followed.
    Appeal from a judgment in favor of the defendant Harris, entered upon the report of a referee.
    In 1871, while the defendants were partners, engaged in the saloon business, under the name of Harris & Crocker, they purchased of the firm of H. B. Ogden & Co. (which firm was composed of H. B. Ogden and the plaintiff), beer, to the amount of ninety-three dollars.
    Before the commencement of this action, Ogden assigned his interest in this account to the plaintiff. On or about June 10, 1871, the defendants dissolved partnership, Harris assigning all his interest in the partnership property to Crocker, who agreed to pay all the firm debts.
    On or about July 6, 1871, Crocker informed the plaintiff of this arrangement, and asked him if he would take his own (Crocker’s) note for the firm debt, payable thirty days after date. The plaintiff agreed to take the note, and stated that, if it was paid, it would cancel the debt, but, if not .paid, that he should hold the firm of Harris & Crocker for the said debt.

      The note not being paid at maturity, the plaintiff brought this action.

      Cassidy ds Brown, for the appellant.

      H. H. IIusfÁs, for the respondents.

       See Miller v. Thorn, decided in Court of Appeals, 1874, reported 15 Abb. (N. S.), 371.

   Tappbn, J.:

The plaintiff brought this action to recover $137, for a bill of ale sold to defendants. The answer avers the dissolution of the defendants’ firm of Harris & Crocker, on the 10th of June, 1871; that Crocker paid the debt sued for, by cash and a note, which plaintiff accepted in settlement. .At the trial, it appeared that the note in question was the note of Crocker only, made after the dissolution of defendants’ firm, and accepted by plaintiff from Crocker. The plaintiff testified: I told him I would take it, and, if paid, it would be in full; if not paid, I would hold the firm.”

.The note was not paid. Plaintiff produced it at the trial, and offered to return it. This testimony is corroborated by other witnesses, and no other testimony was offered, which established any other version of the affair. It appeared, by the testimony, that the plaintiff was apprised of the dissolution of defendants’ firm, and that Crocker had assumed the debts. It further appeared, that both defendants, some time afterward, joined in a general assignment for the benefit of creditors.

The referee held that the agreement between the two defendants, made Harris, who defends this action, a surety as between them; that plaintiff, with knowledge of the fact of this agreement, by accepting Crocker’s note and giving time, discharged Harris; and he ordered judgment in favor of plaintiff, as to Crocker, and against the plaintiff, as to Harrig. The contrary rule was held in a similar case, and it is said, in Waydell v. Luer, that the taking of a note from one of two joint debtors, does not satisfy the debt, unless it be so agreed.

The rule, that a surety is discharged by the giving of time to the principal, may be conceded, without, however, its entering into the determination of the case. The defendants, Harris & Crocker, were both principals. Harris sold out to Crocker, with an agreement that Crocker should pay the firm debts. Crocker attempted to pay the firm debts, by giving the plaintiff his note at thirty days, which note was not paid. The express condition, on which plaintiff took the note, is not disputed, and is, that the firm should be held, if the note was not paid. The original liability of Crocker & Harris for their debts, as partners, and their responsibility to creditors, continued after a dissolution of their partnership. How, then, is Harris exonerated?

Crocker said to the plaintiff: “ I have agreed to pay the firm debts; will you take my note?” The plaintiff conditionally accepted the note at thirty days; hence, the referee has found that Harris was a surety; that plaintiff acted with knowledge thereof; and that the extension of time to pay the debt, operated to discharge Harris. The defendant relies on Colgrove v. Tollman, but the only point decided by that case, is, that the note there sued on was actually paid. The distinction is taken, in Bates v. Rosekrans (above cited), between a security, taken as a present payment, and that taken as a provision for future payment. In that ease, the defendant and one Bingham had jointly given their note to the plaintiff, and, upon its non-payment at maturity, the plaintiff took a new note from one of the defendants alone, retaining, however the note which had become dishonored.

While this case is not directly in point, as to the exact question involved, yet that question was the feature in Smith v. Rogers.

A creditor of a dissolved firm, with knowledge of the dissolution, and that one partner had assumed the debts, accepted that partner’s note; he became insolvent, and the creditor sued the firm for the original debt. Held, that neither the acceptance by the plaintiff of the note of one partner, nor the indulgence shown him, amounted to a payment, or discharged the other partner, but that plaintiff was entitled to recover of both partners the balance due for the original debt, on delivering up the note to be canceled.” “ It was the duty of one partner to see that the other partner complied with the engagement made with him as to the payment of the debt; and the plaintiff, knowing of this arrangement, is not, on that account, to be considered in default, for omitting to call on one partner until the insolvency of the other partner, whose note plaintiff' had taken.”

A debt is not paid by a new promise, unless it be so stipulated. The note in suit was simply a further security, liquidating a book account. Harris himself had no knowledge that it was given by his former partner.

In Cole v. Sackett, a firm dissolved; one partner assumed the debts, and the creditor took the note of the one partner and gave up the note of the firm. The note so taken being unpaid, the creditor sued the firm for the original debt, and the court, Cowen, J., held, that these facts constituted no defense; and various authorities are there cited to sustain these views.

The weight of authority, and the “ reason for the law,” appear to be in favor of plaintiff, and that defendant Harris, as an original debtor, is not exonerated from his liability, there being no agreement to that effect.

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

Present — Barnard, P. J., Taloott and Tappen, JJ.

Judgment reversed, and new trial ordered as to defendant Harris, costs to abide the event.

       Smith v. Rogers, 17 John. R., 340.

       3 Denio, 410.

       Van Eps v. Dillaye, 6 Barb., 252; Bates v. Rosekrans, 37 N. Y., 409.

       2 Lansing, 97.

       Above cited from 17 Johns.

       1 Hill, 516.


text:
    THE BOARD OF SUPERVISORS OF RICHMOND COUNTY, Plaintiff, v. JOHN H. VAN CLIEF, Defendant.

      Custom,—In conflict with statute, cannot be proved— Voluntary payment—when fraudulently obtained, may be recovered back.

    Evidence as to a custom of the board of supervisors to allow its members five dollars per diem for services on committees, or to prove what such services were worth, is not admissible in an action relating to such services. Section 8, of chapter 855, of the Laws of 1869, is conclusive as to their value.
    Money fraudulently obtained by a supervisor, though voluntarily paid, may he recovered back.

      Supervisors of Onondaga v. Briggs (2 Denio, 26) distinguished ; Richmond Co. v. Ellis, followed.

      The action was brought to recover certain moneys which had been paid to the defendant, a supervisor of Richmond county, by the county treasurer, upon bills audited and allowed by the board of supervisors. On the trial, the court directed a verdict in favor of the plaintiff, for the amount received by the defendant for his services on various committees of the board of supervisors.
    The complaint, as to the remaining counts, was dismissed.
    Exceptions were taken, on behalf of both parties, to the rulings of the court, and it was ordered that the exceptions be heard, in the first instance, at General Term, and that judgment, meantime, be suspended.

      Torwpltfms Westervelt, for the plaintiff.

      S. F. Ramson, for the defendant.
   Talcott, J.:

This is an action to recover from the defendant, certain moneys which he had received from the treasurer of Richmond county, upon bills against that county, which had been made out by him against the county for his services as supervisor of said county, and which had been audited and allowed by the board of supervisors, and paid by the county treasurer. The charges in these accounts, which were held to be invalid at the circuit, were charges for attendance at committee meetings, in addition to the charges for attendance at the general meetings of the board, and, for which attendance at committee meetings, the defendant had charged five dollars each; and charges for two trips to Albany, three days each, charged at eighteen dollars; and twenty-five days, negotiating bonds, for which the defendant had charged five dollars per day. These charges purported, according to the bills presented by the defendant, to be for services rendered by him, as supervisor; and no explanation, as to the character in which the services charged as trips to Albany and negotiating bonds, was given or offered,, except that stated on the defendant’s bills presented. By the act of 1869, it is enacted, that each supervisor, whose compensation is hot specially provided for by law, shall be entitled to charge and receive three dollars, per day for each full day’s services during the sessions of the board, besides mileage, now allowed by law; but .such supervisor shall not be entitled to receive any other compensation whatever, except as thé same is specially provided for by law.” As this case appeared at the circuit, these charges for attendance at committee meetings, and for attendance at Albany, and for negotiating bonds, were charges for the services of the defendant, as supervisor, over and above three dollars per Mem for each day’s full services .during the session of the board; and it is not claimed by the counsel for the appellant, that compensation for such services is specially provided by law. The .offer to prove that it had been the custom of the board to allow its members five dollars per diem, for services of its members on committees, was, of course, properly rejected. The act of 1869 was designed.to abrogate and forbid all such customs in the future, where they had existed in the past. Neither was the offer to prove that the services were reasonably worth the prices charged, admissible. The act of the legislature is conclusive upon the subject, and does not allow supervisors to pay themselves out of the county funds, as upon a guamdum meruit.

The charges in question, then, were not legal charges, in behalf of the defendant against the county. But they have been adjusted, allowed and voluntarily paid, and -the general rule of law, in relation to moneys which have been voluntarily paid on a claim of right, and with full knowledge of the facts, is, that such moneys cannot be recovered back; and it was expressly held by the old Supreme Court, in the Supervisors of Onondaga v. Briggs, that this principle ' applied with full force to the case of moneys which had been allowed and paid by a board of supervisors, notwithstanding the charges thus paid were not legal charges against the county. In this case, however, I am relieved from the consideration of this question, since it appears thát the General Term of this department, in the case of Richmond County v. Ellis, has held, that money paid, under such circumstances, to a member of the board of supervisors, may be recovered back. In the opinion delivered in that case, the principle intended to be laid down is thus stated:

“ The supervisors of a county have a trust confided to them, involving a faithful care and control of the public funds in the county treasury; and the voting and payment of unlawful claims to themselves, or to any one of their number, is a breach of a high trust and duty, and the making up of such claim, and the taking the money therefor out of the county treasury, when such acts are established by the testimony, justify the allegations of fraud in the complaint.”

The complaint, in the present case, in like manner, charges that the money of the county was, in like manner, fraudulently obtained; and this case seems to be fully covered by the case of Richmond County v. Ellis. The motion for a new trial is, therefore, denied, and judgment is ordered for the plaintiff on the verdict.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Motion for new trial denied, and judgment ordered for plaintiff.

       Chapter 855, § 8.

       2 Denio, 26.

       MS.


text:
    WILLIAM H. ADAMS, Appellant, v. JOHN IVES and others, Respondents.

      Contract for pvMia work—Sweties—Substitution, of other than those mentioned in bid, after its acceptance—when not allowed.

    Commissioners appointed to lay out, etc., a public highway, published notice that proposals for doing the work would be received, and that each estimate must be accompanied by the consent of two sureties, who should be satisfactory to the commissioners, that they would become bound for the faithful performance of the work. Plaintiff put in a bid, and named, as sureties, A. and B. This bid was accepted by the commissioners. The plaintiff then applied to the commissioners to substitute, in place of the surety “B.,” one “D.,” which, after making some inquiry as to “ D.,” the commissioners refused to consent to. After notice to plaintiff to execute the contract and bond with the sureties named in the bid, and that otherwise his bid would be considered as withdrawn, and after plaintiff’s tendering “D.” as surety in place of B., he not being able to obtain B’s consent, the commissioners entered into a contract with other parties; whereupon the plaintiff commenced an action in equity to restrain the execution of such contract and any payment thereunder. Held, that the suit could not be maintained; that the doctrine that under a contract to take good security, or a good indorsed note, the obligee is bound to accept that which is in fact correct within the meaning of the contract, and cannot reject a tender of performance from mere willfulness or whim, had no application to the case, the only contract here being to accept two specified parties, and not to take any responsible sureties.
    Appeal from a judgment dismissing the complaint.
    The facts are fully stated in the opinion.

      James B. Adams, for the appellant.

      D. P. Barnard, for the respondents.
   Talcott, J.:

The defendants, Ives, Wykoff, Yan Sickeen and Palmer, were appointed by the Supreme Court, commissioners to lay out, open and grade Atlantic averiue, in the town of New Lots, Kings county, under an act of the legislature, passed in 1869, which act- was amended in 1870. Under these acts, the commissioners, as such, were to enter upon the lands taken for the avenue, and cause the same to be properly regulated, graded, graveled, curbed, etc., in such manner and on such plans, as, in their judgment, should be necessary. The act contains no directions as to any manner in which they shall contract for the doing of the work, or for any advertisement for proposals. The commissioners, however, did, in November, 1870, publish a notice, to the effect that, for the space of two weeks, proposals would be received for the regulating, grading, curbing, guttering and preparing the avenue, according to certain plans and specifications to he seen at their office. The specifications referred to, contained the following provisions, to wit: “ Each estimate must be accompanied by the consent, in writing, of two persons, with their respective place of business or residence, who shall be satisfactory to the commissioners, so that, should the contract be awarded to the persons making the bid, they will, on its being so awarded, become bound as sureties, each and severally, in the sum of $10,000, to insure the faithful performance - of the contract.”

The plaintiff put in a bid, which, on the face of it, purported to be a bid for furnishing the materials for the work in question, and named, as his securities, “ William Miles and Samuel Gr. Adams, both real estate owners in the town of New Lots.”

• The bid of the plaintiff was accepted by the commissioners, but he failed to procure the assent of Mr. Miles to become one of his sureties. He applied to the commissioners for leave to substitute, in place of Mr. Miles, as one of his sureties, one Charles Devlin, of the city of Hew York. The commissioners, after having made some investigation regarding the character and responsibility of Devlin, refused to consent to the change. The plaintiff then gave notice that he was ready to execute the contract, and asked them to specify a time when it would be convenient for him to be present with his sureties. The commissioners thereupon notified. the plaintiff that the contract was prepared and ready for execution at their office, and notified him to call at the office of the commissioners with the sureties proposed by you, viz.: William Miles and Samuel G-. Adams,, and sign the contract and bond, on or before the 15th of March, 1871; otherwise, the commissioners will consider you as having withdrawn and abandoned your bid, and the commissioners will award the contract to some other party.”

The plaintiff, being unable to procure Mr. Miles to become one of his sureties, tendered Mr. Devlin, as such surety, in place of Miles; and thereupon, after the time specified in their notification to the plaintiff had expired, the commissioners awarded the contract to the defendants, Moore and Sturges. The plaintiff thereupon commenced this suit in equity, to restrain the commissioners from awarding the contract to any other person, and from collecting any money from the town of Hew Lots; to pay for doing the work, and to restrain the supervisor of the town of Hew Lots from issuing the bonds of the town of Hew Lots to pay for the work, and to restrain Moore and Sturges from doing the work under the contract awarded to them. On the trial, the complaint was dismissed, upon the ground that the commissioners were not legally bound to accept of Mr. Devlin as a surety for the performance of the contract by the plaintiff, even though Devlin was sufficiently responsible. Without conceding that a suit in equity can be maintained in such a case, we think that the decision at the Special Term was clearly right, upon the ground on which it was. then placed. The authorities relied upon by the plaintiff’s counsel, to show that, where there is a contract to take “ good security,” or a good indorsed note,” or when words creating a similar obligation are used in a contract, the obligee is bound' to accept that which, in fact, comes within the meaning of the contract, and cannot reject a tender of performance from mere willfulness or whim, have no application to this case. This is not a question of the meaning of the terms of a contract, or what is a fair and reasonable compliance with it. The only contract made by the commissioners with the plaintiff, was to accept, as sureties, two certain, specified parties, and they made no contract to accept any responsible sureties who might be offered. The plaintiff took upon himself the risk of being able to procure the sureties specified by him, and there was no obligation, whatever, resting upon the commissioners to give the contract to the plaintiff, except that created by the express terms of the bid and acceptance. As the commissioners were under no legal obligation to the plaintiff, of course he cannot maintain an action against them, upon the ground that they were actuated by improper motives, in refusing to do that which they were not bound to do by their contract.

The judgment must be affirmed, with costs of the appeal.

Present — Baenaed, P. J., Tappen and Taloott, JJ.

Judgment affirmed, with costs.

       Sess. Laws of 1869, p. 404.

         Sess. Laws of 1870, vol. 2, p. 1434.


author: Tappen, J.:

text:
    ELLEN O’REILLY, Respondent, v. THE GUARDIAN MUTUAL LIFE INS. CO., Appellant.

      Policy of Ufe mmramce— PFotice amd proof of death—when warned—Premiums— where payable—Agent—cmthomty of.

    A policy of insurance was issued by the defendant upon the lives of the plaintiff and her husband, payable to the survivor. The plaintiff’s husband died, May 15th, 1873. On June 3d, 1873, a letter was written by the plaintiff to the defendant, informing it of the death of her husband, which letter the defendant retained and never demanded any further notice or proof of death. Held, that by so doing the defendant waived any insufficiency or informality in the notice.
    The clause in policies, providing for preliminary proofs, is intended to furnish reasonable notice to the company, and is to be expounded liberally in favor of the assured.
    The policy, which was delivered in Rhode Island, by one Rockwell, an agent of the defendant, provided, that, in case the premiums should not be paid when due, it should be forfeited and cease and determine. No place for the payment of the premiums was prescribed in it, and the agent, at the time of delivering it, said that he would come around regularly and collect them. He did call and collect the first two half-yearly premiums, but failed to call for the one payable January 7th, 1878, which the plaintiff was ready to pay, but did not send to the company in New York, because she was waiting for the agent to call for it. Rockwell ceased to he the agent of the company, in August, 1871, of which the plaintiff had no notice. The policy provided that “ agents of the company are authorized to receive premiums when due * * . * but not to make, alter or discharge contracts or waive forfeitures.” -5eld, that the agent, acting as he w'as for a foreign insurance company, had an implied authority to direct the assured how, when and where, the premiums were to be paid, and that the company, having received the benefit of the collections thus made by him, and having never required the plaintiff to pay the premium in New York, was bound by his acts.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Wm. Peet, for the appellant.
    The proof of death was insufficient. (Bliss on Life Ins., 412; Woodfin v. Asheville, 1 Bigelow Life and Ac. R., 626; Hincken v. The Mut. Ben. L. Ins. Co., 50 N. Y., 657; Owen v. Farmers' Ins. Co., 57 Barb., 520; Davis v. Niagara Ins. Co., 49 Me., 282; Taylor v. Ætna Life Ins. Co., 13 Gray, 434; Mason v. Harvey, 8 Exch., 819.) Rockwell had no authority to make the arrangement as to the payment of premiums. (Mechanics’ Bk. v. N. Y. & N. H. R. R., 3 Kern., 632; Robertson v. Ketchum, 11 Barb., 655; Clark v. Metropolitan Bank, 3 Duer, 249; Story on Agency, §§ 442, 443; Wall v. Home Ins. Co., 36 N. Y., 157; Mayor v. Brooklyn Fire Ins. Co., 3 Abb. App. Dec., 251; Bouton v. Am. Mut. Life Ins. Co., 25 Conn., 542.)

      James Troy, for the respondent.
    The proof of death was sufficient ; if not, any informality was waived. (Miller v. Eagle Life and Health Ins. Co., 2 E. D. Smith, 269; Walsh v. Washington Ins. Co., 32 N. Y., 442; Talcot v. Marine Ins. Co., 2 John., 136.)
   Tappen, J.:

The defendants issued a policy for $5,000, upon the lives of plaintiff and her husband Michael, payable to the survivor, etc.

And the defendants’ liability being questioned on the death of Michael, this action was brought, which resulted in a judgment for the plaintiff. The questions presented on the appeal are, first, whether the plaintiff gave defendants sufficient notice and proof of death within the terms of the policy; and second, whether an omission to pay the last half-yearly premium, which accrued before the death of Michael, operated.to forfeit the policy.

The policy contained a clause, providing for payment of the money, in sixty days after due notice and proof of death, after deducting from the amount of the policy any indebtedness to the company, on account of premiums.

The plaintiff gave the defendants the following notice:

Providence, June 3 d, 1812.

The Guardian Mutual Life Insurance Company, New 7orJ&:

I hereby inform you that my husband Michael O’Reilly, whose life was insured in your office by policy 22,016, died in this city, on the 15th of May last, after a short illness.

Yours, respectfully,

ELLEN O’REILLY.

The defendants were silent after receiving this notice. They retained it as notice, and did not claim from plaintiff any further notice or proof of death. The policy does not prescribe any form of proof, and the plaintiff would seem to have relied upon the paper as being sufficient proof ” of death, and as satisfactory to the company. ' The clause in policies, providing for preliminary proofs, is to be expounded liberally in favor of the assured.

The object of preliminary proofs is to furnish reasonable information, and the clause has been liberally expounded. The defendants might have required some other kind of proof of the death of Michael O’Reilly. They failed to do so, and must be held to have waived it. The policy contained the following clause: “ In case the premium shall not be paid to the company, on or before the time prescribed for the payment of the same, the policy shall thereupon be forfeited, and cease and determine.”

The contract was made in Rhode Island, the defendants acting there by their agent, one Rockwell. No place for the payment of premiums is prescribed in the policy. At the time of effecting insurance, or of delivering the policy, the agent said that he would come around regularly and take up the premiums, and otherwise to the effect that he might sometimes be out west, “but you hold it till I come.” He did call and collect the two half-yearly premiums, but did not call for the premium due January, 1872. The plaintiff was ready to pay, but did not send it to the company’s office in New York, because she was waiting for Rockwell to call for it, as he had instructed her. At the foot of the policy is this clause: “Agents of the company are authorized to receive premiums when due, upon the receipt of an authorized officer of the company, but not to make, alter or discharge contracts or waive forfeitures.” The defendants claim that the promise of their agent to call for the premiums, was a violation of this clause, and not binding on them, and not available to the plaintiff as a legal excuse for delay in payment of premiums.

As the policy did not prescribe any place of payment, and was made in Rhode Island, and the company had no office there, and the plaintiff had been in the habit of waiting for, and paying the-agent when he called, the company should have given the plaintiff notice of any change in their mode of doing business in this respect.

It was shown on the tidal that they revoked Rockwell’s agency in August, 1871, but, although it was claimed that notice of such revocation had been sent to the plaintiff, the proof fails in that respect, and there is no proof that such notice was sent, as claimed, while the plaintiff testifies that she never received it.

The question is, whether the plaintiff shall be prejudiced by the act of the agent. He did say he would call for the premiums, and he did call regularly, up to a certain time. A custom of the company would seem to be thus established, and I doubt whether either the act or the language of the agent, is to be considered a modification of the contract according to its terms; and this conclusion is placed on two grounds: First, it is in harmony with the general features of the business of a foreign insurance corporation, that the premiums should be collected by its agent at the place of the making of the contract, and that the agent was, therefore, exercising an implied authority, in saying to the assured how and where he would collect them, or where they should be paid; and, secondly, the company is presumed to have had the benefit of collections thus made, for the period of a year or more. They never exacted of the plaintiff, that she should pay them the premiums in Hew York.

The half-yearly premium of $157, became due the 7th of January, 1872.

O’Reilly died 15th May, 1872. Rockwell’s agency was discontinued in August, 1871. It was not proved that the plaintiff had notice of this discontinuance, or that any other agent was appointed to represent the company. The court left it to the jury to say whether the plaintiff was chargeable with laches, in "not seeking out a person to pay the premium to; and if they found her negligent in this respect, after Rockwell’s failure to call, then that the policy had lapsed, and she could not recover. Ho exception was taken to the charge.

The jury found for the plaintiff. The exceptions to the testimony do not appear to be tenable. The judgment should be affirmed, with costs.

Present—Talcott and Tappen, JJ.

Judgment affirmed, with costs.

       Walsh v. Washington Ins. Co., 32 N. Y., 442; Talcot v. Marine Ins. Co., 2 Johns., 136.

       5 Johns., 317 and 11 Johns., 259.

       Vos v. Robinson, 9 Johns. R., 195.

       Bohner v. Williamsburgh Ins. Co. 35 N. Y., 733.

       Sheldon v. Fire Ins. Co., 26 N. Y., 460.


text:
    THE PEOPLE ex rel. HAWLEY D. CLAPP, Appellant, v. LYMAN FISK and others, Respondents.

      Contempt—Mandamus — necessity of seal to writ of.

    A mandamus having been ordered, requiring the National Trust Company to pay to the relator a certain sum out of a fund in its hands, the same was attempted to be issued without the seal of the court, and, in this form, was delivered to the secretary of the company. Another claimant upon the same fund, having obtained and subsequently served in due form a like mandamus, the same being duly sealed, the Trust Company paid, under the advice of counsel, the sum required by the second mandamus, leaving insufficient moneys in its hands to meet the full amount of the relator’s claim. Held, that the service of a writ of mandamus without a seal, is a nullity. Held, further, that the officers of the company, not having intended any contempt, but acting under legal advice, in pursuing what they thought their duty, may avail themselves of the merest technical objection in proceedings against them for contempt.
    This is an appeal from an order of the Special Term of Kings county, denying a motion to punish Darius R. Mangam, the president, and James Merrill, the secretary, of the National Trust Company, of the city of New York (one of the defendants), and Thomas L. Rushmore, as for a contempt, in disobeying the mandamus issued in this case.

      Jamies Emott, for the appellant.

      J. H. V. Arnold, for National Trust Company.

      Winchester Britton, for Rushmore.
   Talcott, J.:

The mandamus, ordered in behalf of the relator, ordered the National Trust Company to pay to the relator, the sum of $8,750, “out of the funds deposited by the commissioners,” to lay out Mammoneck avenue, in the county of Westchester. The relator was one of the claimants upon the fund so deposited, to the amount specified in the order. But, it seems that the court, simultaneously with the ordering of the mandamus in behalf of the relator, had ordered two other writs of peremptory mandamus, one in favor of Spencer and Hitchcock, and another in favor of Mary A. Dingee, who were also claimants upon the fund so deposited, ordering the payment of specific amounts in each case, out of the moneys so deposited. The total amount, so ordered to be paid by the three writs of mandamus, was more than sufficient to exhaust the entire amount of the fund, so on deposit with the Trust Company. The company first paid the amount of the claim of Mary A. Dingee, by the consent of the relator in this case. It then paid the amount ordered to be paid by the mandamus in favor of Spencer and Hitchcock, and the balance of the fund, amounting to $4,560.85, it has paid over to the relator. It appears that the Trust Company had and claimed no interest in the fund, but as mere depositaries; and it is shown by the affidavit of Mr. Meholls, who appeared as the counsel for the Trust Company, on the return of the orders to show cause why a peremptory mandamus should not issue in each of the three cases, which were all returnable at the same time, that he then stated to the court in behalf of the Trust Company, that there were not sufficient funds in the hands of the Trust Company, to pay all the three claims. Why the whole amount claimed by each of the claimants, was ordered to be paid by the Trust Company, instead of a pro rata proportion, does not appear. Possibly, the orders were so entered, through inadvertence on the part of the clerk or the attorneys. At all events, the orders were made, that a mandamus issue in each case, requiring the Trust Company to pay to each of the three claimants, the full amount of the claim in each case. Yet it clearly appears that no more was intended to be required of the Trust Company, than the payment of the amount so on deposit with it. As the orders were, that the mandamus should require the payments to be made out of the moneys so on deposit with the Trust Company, the company not having paid the relator in full, he made this motion that the president and secretary be punished as for a contempt. It appears that the mandamus, in favor of the relator, was attempted to be issued without a seal of the court, and, in this form, was delivered to James Merrill, the secretary of the Trust Company, on the evening of the 2d day of September, 1872, on which day, all the orders for the three writs of mandamus were granted, but no demand for payment was then made. The writ in favor of Mary A. Dingee, was served the same evening, and the order and writ in favor of Spencer and Hitchcock, were served about nine o’clock the next morning. A peremptory demand having been made in behalf of Spencer and Hitchcock, with the service of the writ in their behalf, and their attorney claiming that the service of a writ without a seal, in behalf of the relator, was ineffectual, and objecting to the payment of the relator before Spencer. and Hitchcock had been paid, the officers of the Trust Company advised with their counsel, and, being advised by him that under the circumstances they were bound to pay-the amount specified in the writ in favor of Spencer and Hitchcock, no sealed writ of mandamus then having been served under the order directing the mandamus to issue in behalf of the relator, they did so. The insufficiency of the fund for the payment of all the claims in full, and the objection that the writ attempted to be served in behalf of the relator was without a seal, were communicated to the relator, who was present at the office of the Trust Company, and .it was then agreed that the counsel for the Trust Company should take further time to consider the matter till one or two o’clock of the same day; with which arrangement, as stated by the officers of the Trust Company, all the parties, including the relator, appeared to be satisfied. It further appears that after further considering the matter, and taking additional advicé, the counsel of the Trust Company did, between one and two o’clock of that .day, advise the company that it was bound to pay the amount called for by the Spencer and Hitchcock writ, which it accordingly did, the amount thus paid being $6,500. The affidavits of Merrill and Mangam show that the company stood indifferent between the claimants in the several writs, and acted, throughout, under the advice of counsel, and with the desire and intention to obey the mandates of the court, in such manner as they were required by law. Ho sealed writ of mandamus, in behalf of the relator, was ever served upon, or exhibited to, any of the parties now proceeded against, or to any officer of the company, until after the payment in pursuance of the mandate of the writ in behalf of Spencer and Hitchcock, and, so far as appears, no such writ was ever sealed, till after such payment.

The motion appealed from, was denied, upon the ground that the service of the writ, in behalf of the relator, without a seal, was a nullity.

We are of the opinion that the decision at the Special Term was correct.

A seal is necessary to a writ of mandamus. By the judiciary act of 1847, section 57, it is provided that no process, signed by the attorney, solicitor or party by whom issued, except such as shall be issued by special order of the court, shall be deemed void or voidable, by reason of having no seal, or a wrong seal thereon. The same distinction between writs issued at the option of the party, and those which required special allowance, had previously existed as to the use of seals, which the clerks of the court were authorized to issue in blank. These 'could not be affixed to writs requiring allowance, but the latter must be specially sealed. Thus, the legislature has seen fit to provide that a writ, specially authorized by the court, must be specially sealed, and it seems to follow, that such a writ, without any seal, is not sufficiently authenticated according to law, to be the basis of proceedings for contempt; and it is held that an officer, acting under a process, without a seal, which the law requires to be sealed, is a trespasser, The proper mode of service of a writ of mandamus, where there are several defendants, is by showing the original writ under the seal of the court, and delivering a copy. No such service was made in this case. The Court of Chancery has, it is true, held, in many instances, that the mere knowledge that an injunction has been issued by it, forbidding the doing of certain acts, is sufficient on which to found a proceeding for contempt against a party having such knowledge, and without a personal service of the writ under seal. But, so far as we understand, this stretch of power has not been adopted in the courts of law, and in reference to writs issued under the common law.

But, aside from these considerations, it seems quite manifest that no contempt of the court, or disobedience of its process, was intended. On the contrary, the officers of the company intended to obey the commands of the court. Those commands could not be literally complied with, and they acted upon careful legal advice in pursuing what they thought their dutyand, under such circumstances, the merest technical objection is available against a proceeding for contempt.

The return of the defendant Bushmore shows a compliance, on his part, with the mandate of the writ,.and it does not appear that the relator has suffered anything by any delay in the signing of the check by Bushmore.

The order appealed from must be affirmed, with ten dollars costs.

Present — Babnaed, P. J., Tappen and Taloott, JJ.

Order affirmed, with ten dollars costs.

       Bouvier’s Law Dic., Writ; Burrill’s Law Dic., Writ; 2 Crary’s Prac. Sp. Pro., 68; 2 R. S., 277, § 8.

       Graham’s Pr., 120.

       Millett v. Baker, 42 Barb., 215, and cases cited.

         Tapping on Mandamus, 330; 2 Crary’s Prac. Sp. Pro., 68.