author: Huger, Ch. J.

text:
    Emeline Bogardus, Appellant, v. New York Life Insurance Co., Respondent.
    It is essential to the legal statement in a complaint of a cause of action ex contractu, that it should, allege an existing contract and the performance by plaintiff of s.uch conditions precedent as are thereby provided, or a tender of performance or some adequate excuse for non-performance.
    Such an excuse exists only when the defendant has prevented performance by plaintiff, or has himself wholly refused to perform, or has wholly disabled himself from completing a substantial performance.
    The failure of the defendant to perform some of the obligations of the contract which go to a part only of the consideration, when the breach may be paid for in.damages, is not sufficient.
    The defendant, by demurring to the complaint in such an action, does not thereby admit the construction put upon the contract by the complaint,, or the correctness of the inferences drawn from the facts admitted ; he only admits the facts properly stated; and where the contract is set forth, the rights of the parties must be determined by its terms as construed by the court.
    A mere representation made during the pendency of negotiations for a contract is not actionable, even if untrue ; it must appear to have been mate, rial and made under such circumstances as to show that it was intended as a warranty of the fact represented, and so constituting a contract. A mere allegation in a complaint, therefore, of a representation is not equivalent to an averment of warranty or contract.
    This action was upon a policy of life insurance, issued by defendant November, 1871, on the Tontine or “ ten-year dividend system.” A copy of the policy was annexed to and formed part of the complaint. By it the specifled annual premium was to be paid each year for ten years, and in case of default in any payment the policy was declared null and void and all payments forfeited. It was also declared therein that no dividend should be allowed unless the insured should survive the ten-year dividend period and unless the policy should then be in force. Aside from the provision for payment of the amount of the i nsurance upon the death of the insured, the policy provided, in case he survived the ten-year period and the policy was then in force, for a payment in cash or annuity bonds of a proportionate share of dividends, accretions, etc., from a fund to he created by certain contributions furnished by a class of policy-holders, consisting of those effecting insurance on the same plan during the year 1871; also, that the surplus and profits derivable from certain described funds belonging to that class should be equitably apportioned among the surviving policy-holders belonging to the class. In the application for the insurance, the insured consented that defendant might place all dividends accruing on her policy in the reserve fund. The complaint alleged payment of premiums up to November, 1879. This action was commenced in January, 1881. The complaint averred that by the policy defendant bound itself to “ receive and keep separate all the premiums paid upon policies of the same class,” and all the incomes, profits, etc., accruing therefrom ; and alleged as a breach of the contract that defendant had neglected to keep and invest said funds separately. No tender of premiums after November, 1879, or other excuse,for non-payment, save the alleged breach on the part of the defendant, was set up, nor was it averred that defendant was insolvent or unable to respond in damages for any breach of contract on its part. On demurrer to the complaint, held, that the complaint substantially admitted a non-payment of premiums, and so a breach on the part of the plaintiff of a condition precedent; that the policy did not require a separate investment of the funds belonging to the class which included the policy in suit; and that the consent of the assured to the placing of dividends in a reserve fund did not extend its obligations in this respect; that the averments in the complaint as to defendant’s obligations, being simply inferences drawn from the contract itself, were not admitted by the demurrer ; but that, assuming the failure to keep the funds separate was a breach of the contract on the part of defendant, it was a breach of an independent agreement for which it could respond in damages, and was not an excuse for non-payment of the premiums; and that, therefore, the complaint failed to show a cause of action.
    The complaint contained two counts, the first based upon alleged false and fraudulent representations. The averments were in substance that for the purpose of inducing plaintiff to take out a policy on the Tontine plan, defendant represented that it had received and kept separate, and would continue to do so, the funds belonging to the same class as plaintiff's policy, which representations were relied upon by plaintiff, and were false and fraudulent. In the second count, which was for an alleged breach of the contract, it is stated that plaintiff “ repeats and reiterates all the allegations hereinbefore contained and makes them a part of her second cause of action.” Held, that, assuming the averments as to the representations in the first count were incorporated in the second (as to which quasre), as they were made concurrently with the issuing of the policy, and were necessarily incident to and dependent upon it, the nonperformance by plaintiff of the condition precedent, i. e., regular payment of annual premiums, furnished the same defense to an action based thereon; also, that the averments in the first count did not show any cause of action resting in contract, as there was no averment" that the representations were a warranty, or were made under such circumstances and in such form as to constitute a contract.
    (Argued December 23, 1885;
    decided January 19, 1886.)
    Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of Hew York, entered upon an order made June 25, 1883, which affirmed a judgment in favor of defendant, entered upon an order sustaining a demurrer to the second count of plaintiffs complaint herein. »
    The substance of the complaint is set forth in the opinion.

      B. F. Tracy, Wm. Wirt Hewitt and Lucius McAclam for appellant.
    The complaint should be liberally construed. (Code of Civ. Pro., § 519; Prouty v. Whipple, 10 Week. Dig. 387.) If the facts set forth therein present any cause of action, entitling the plaintiff to any relief, legal or equitable, a demurrer theretd for insufficiency must be overruled. (Marie v. Garrison, 83 N. Y. 23; Price v. Brown, 10 Abb. N. C. 67; Butterworth v. O'Brien, 39 Barb. 192; Conaughty v. Nichols, 42 N. Y. 86; Wright v. Hooker, 10 id. 59; Mackey v. Auer, 8 Hun, 183.) Defendant’s agreement imports “ an obligation ” upon “ the defendant arising out of a confidence reposed ” in it “ to apply ” the reserve fund “ faithfully and according to confidence.’ ’ Such an agreement constitutes a trust. (Martin v. Funk, 75 N. Y. 141; Day v. Roth, 18 id. 453; Barry v. Lambert, 98 id. 306; Fisher v. Fields, 10 Johns. 505; Watt v. Shipman, 21 Hun, 598, 606; People v. City Bk. of Rochester, 96 N. Y. 32; Matter of Le Blanc, 14 Hun, 8; Lowerre v. Am. Fire

      Ins. Co., 6 Paige’s Ch. 482; Libby v. Hopkins, 103 U. S. 309; 2 Story’s Eq., § 964.) It was entirely competent for the parties to make the contract contained in the policy and at the same time to leave the meaning of certain words and expressions thereof uncertain, and to leave the explanation of such meaning, and the plan of the system under which the policy was issued to be settled by extrinsic evidence. (Hope v. Bolen, 58 N. Y. 380; Hineman v. Rosenback, 39 id. 98; Whitford v. Laidler, 94 id. 148; Chapin v. Dobson, 78 id. 74; Potter v. Hopkins, 25 Wend. 417; Beach v. Raritan & D. R. R. Co., 37 N. Y. 465; Briggs v. Hilton, 99 id. 526; Eighmie v. Taylor, 98 id. 288.) The general rule which forbids paroi evidence varying the terms of a written contract has no application to collateral undertakings. (Eighmie v. Taylor, 98 N. Y. 288; Chapin v. Dobson, 78 id. 74; Johnson v. Oppenheimer, 55 id. 293; Van Brunt v. Day, 81 id. 251; Julliard v. Chaffee, 92 id. 529; Hope v. Balen, 58 id. 380.) A failure on the part of plaintiff to pay or tender payment of the premiums did not preclude her from recovering damages for the defendant’s admitted breaches. (People v. Empire Mutual L. Ins. Co., 92 N. Y. 109; Shaw v. Republic L. Ins. Co., 69 id. 293; Atty.-Gen. v. Guardian L. Ins. and Ann. Co., 78 id. 125.) The utter failure and inability of the defendant to perform its contract from its inception having been admitted, the defendant holds plaintiff’s money without any consideration therefor, and an action will lie to recover back the money thus paid without consideration. (Weller v. Tuthill, 66 N. Y. 347; Freer v. Denton, 61 id. 492; Wright v. Hooker, 10 id. 59; Conaughty v. Nichols, 42 id. 86.) It cannot be claimed that the company had no right to make such a special contract. It made it, and has received plaintiff’s money under it. The plea of ultra vires cannot avail the defendant. (Bissell v. M. S. & N. I. R. R. Co., 22 N. Y. 262; Mad. Ave. Bap. Ch. v. Oliver St. B. C., 73 id. 90; Whitney Arms Co. v. Barlow, 63 id. 62; Kent v. Quicksilver Mininq Co., 78 id. 159.) Having admitted the contract, and not having pleaded the statute of frauds, or insisted upon it in its answer, the defendant is deemed to have renounced the benefit of it. (Harris v. Knickerbocker, 5 Wend. 638; Cozine v. Graham, 2 Paige, 177; Duffy v. O'Donovan, 46 N. Y. 226; Bommer v. Am. Spiral, etc., Hinge Mfg. Co., 81 id. 468; Marston v. Swet, 66 id, 209.) Even if it were true that the plaintiff has alleged an improper measure of damages, that fact cannbt be taken advantage of by demurrer. (Wetmore v. Porter, 92 N. Y. 80.)

      Wm. B. Hornblower for respondent.
    So far as the complaint sets forth a contract different from that contained in the policy it is demurrable. (1 Greenl. on Ev., § 275; 2 Whart. on Ev., §§ 920, 1014; Tayloe v. Riggs, 1 Pet. 600; Ins. Co. v. Mowry, 96 U. S. 544; White v. Ashton, 51 N. Y. 280; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 283; Imham v. Child, 1 Bro. 92; Pohalski v. Mutual L. Ins. Co., 36 N. Y. Supr. Ct. 234; affirmed, 56 id. 640; Harper v. Albany Mutual Ins. Co., 17 N. Y. 194; lamott v. Hudson River Fire Ins. Co., id. 199, note; Howell v. Knickerbocker L. Ins. Co., 23 id. 516; Mayor, etc., v. Brooklyn Fire Ins. Co., 41 Barb. 231; Renner v. Bank of Columbia, 9 Wheat. 587; Hunt v. Rousmanier, 8 id. 211; Bk. of U. S. v. Dunn, 6 Peters, 51; Renard v. Sampson, 12 N. Y. 561; Hoare v. Graham, 3 Camp. 56; Brown v. Wiley, 20 How. 442; Specht v. Howard, 16 Wall. 564; Brown v. Spofford, 95 U. S. 482; Martin v. Cole, 104 id. 30.) The policy being set forth in full in the complaint, our demurrer admits only the agreement as set forth in the policy. So far as the allegations of the complaint purport to construe or interpret the provisions of the policy, our demurrer does not admit of such allegations. (Buffalo Catholic Institute v. Bitter, 87 N. Y. 250; Bonnell v. Griswold, 68 id. 294; Dillon v. Barnard, 21 Wall. 430; U. S. v. Ames, 99 U. S. 35.) This is not a case in which paroi evidence is required to explain technical words, or to annex incidents. (Greenl. on Ev., §§ 294, 295.) The general allegation in the complaint that defendant did not keep or perform any of the conditions of said policy amounts to nothing. This general allegation is explained and qualified by what precedes and follows as to the particular conditions claimed by plaintiff to be contained in the policy, and claimed to have been violated. (Clark v. Dillon, 97 N. Y. 370, 373; Speer v. Downing, 36 Barb. 522; Conger v. Hudson R. R. R. Co., 12 N. Y. 190; Bunge v. Koop, 48 id. 225; Bates v. Rosekrans, 23 How. Pr. 98; Knapp v. City of Brooklyn, 97 N. Y. 520; Southwick v. First Nat. Bank, 84 id. 429; Suprs. v. Decker, 30 Wis. 624, 633; Riley v. Riley, 34 id. 376; Drum v. Horton, 1 Pinney [Wis.], 456.) The relations of a policyholder to a mutual insurance company are not those of a cestui que trust to a trustee, but those of a contracting party to another contracting party, and their relative rights and liabilities are to be determined by the contract. (Taylor v. C. O. L. Ins. Co., 9 Daly, 489; Hincker v. U. S. L. Ins. Co., 16 N. Y. [1 Weekly Dig.] 44; Verplanck v. Mercantile Ins. Co., 1 Edw. Ch. 84; People v. Security L. Ins. Co., 73 N. Y. 114; Binley v. Eq. L. As. Soc., 61 How. Pr. 346.) The statute of frauds applies to this case so far "as the ten-year dividend scheme is concerned, and hence no paroi evidence would be admissible to' add to or vary the terms of the contract in that particular. (Trustees, etc., v. Bklyn. F. Ins. Co., 19 N. Y. 307; Shute v. Dorr, 5 Wend. 204, 206, 207; Browne on Stat. of Frauds, § 282; Packet Co. v. Sickles, 5 Wall. 580, 595; Birch v. Earl of Liverpool, 9 B. & C. 392; Dobson v. Espie, 2 H. & N. 81; Doyle v. Dixon, 97 Mass. 211; Peters v. Westborough, 19 Pick. 364; Hill v. Hooper, 1 Gray, 131; Boydell v. Drummond, 11 East, 156, 159; Harris v. Porter, 2 Harr. [Del.] 27; Foote v. Emerson, 10 Vt. 338; Lockwood v. Barnes, 3 Hill, 128; Weir v. Hill, 2 Lans. 278; Broadwell v. Getman, 2 Den. 87; Tolley v. Greene, 2 Sandf. Ch. 91; Durand v. Curtis, 57 N. Y. 7; Kellogg v. Clark, 23 Hun, 393; Bernier v. Cabot Mfg. Co., 71 Me. 506.) The agreement which the plaintiff seeks to engraft on the policy was of the very essence of the contract, and provided for the method of administering and distributing the ten-year dividend funds. It cannot m any sense be considered as collateral. (Eighmie
      v. Taylor, 90 N. Y. 288.) Prior written negotiations and representations are merged in the subsequent written contract as much as oral negotiations and representations are, unless expressly referred to and made apart of the written contract. (2 Pars, on Cont. 548; Vandervoort v. Smith, 2 Caines, 155, 161; Munford v. McPherson, 1 Johns. 414; Riley v. City of Brooklyn, 46 N. Y. 444, 446.)
   Huger, Ch. J.

The appellant asserts in the brief used on the argument, that the count of the complaint demurred to, states a cause of action ex contractu alone, and we are also of the same opinion.

It is essential to the legal statement of such a cause of action that it should show an existing contract, and the performance by the plaintiff of such conditions precedent as are thereby provided, or a tender of their performance, or some adequate excuse for non-performance. This may be done by a general allegation of performance, but in some form the fact must be alleged, and if controverted, proved on the trial. (Code of Civ. Pro. 533.)

The cause of action stated in this count is for an alleged breach of the conditions of a policy of insurance dated Nov. 3, 1871, and which purports to have been issued by the defendant to the plaintiff upon the life of her husband, and is stated to be in consideration of the sum of $377.45 to them in hand paid, and of the annual premium of $377.45 to be paid “ in every year during the continuance of this policy until ten full years premiums shall have been paid.” It further provides that “ If the premiums as above stipulated” shall not be paid, then and in every such case this company shall not be liable for the payment of the sum aforesaid, or any part thereof, and this policy shall cease and determine.” “In every case when this policy shall cease and determine or become null and void, all payments thereon shall be forfeited to this company, and no action or right of action shall remain to or be maintained against the company by the assured, or by any other person by virtue of this policy or any thing connected therewith“ that this policy is issued on the ten-year dividend system,” and “ that the ten-year dividend period for this policy shall he completed ” on the 3d day of November, 1881; that no dividend shall be allowed or paid upon this policy unless the person whose life is assured shall survive until the completion of its ten-year dividend period and unless the policy shall then be in force.” The complaint alleges payment of the annual premium stipulated for only to the 3d day of November, 1879, and this action was commenced on the 28th day of January, 1881, nearly a year before default could be made in the payment of dividends on the insurance, and more than a year after the policy had ceased to be an existing contract, unless some adequate reason is alleged for the non-payment of premiums by the plaintiff.

The contract, as pleaded, provides for the regular payment by the assured of the annual premiums, and such payments are made the condition of any claim thereunder, and the non-payment of such premiums causes the policy to become null and void and forfeits to the company all payments made thereon. These conditions were lawful; the parties were competent to enter into them, and unless performance or its equivalent is alleged, the plaintiff has failed to state a good cause of action, and must abide by the case as shown by her complaint.

The statement in the complaint with reference to the payment of the annual premiums, is equivalent to an admission that they were not paid after November, 1879, and contains no allegation that she was in any way prevented by defendant from performing, but it is now argued that the alleged nonperformance by the defendant of certain obligations alleged to have been assumed by it, maybe considered as equivalent to an allegation of performance by her. We are very clearly of the opinion that this claim is not substantiated by the terms of the contract, or the allegations of the complaint. The failure of one party to a contract to perform some of its obligations, when it consists of a number of independent provisions, furnishes no excuse for non-performance, to the other party. It is only when the non-performance, is of a condition precedent, or where such party has wholly refused to perform, or has wholly disabled himself from completing a substantial performance, that the other party is relieved from performance, or a tender thereof. (People v. Empire Mutual L. Ins. Co., 92 N. Y. 105, 109; Shaw v. Republic L. Ins. Co., 69 id. 286, 293.)

The complaint alleges the obligations of the defendant charged as not performed by it in the following language: That by the contract or policy of insurance issued to her as aforesaid, a copy of which is hereto annexed, the defendant then and there bound itself to recewe and keep separate all the premiums paid upon policies of the same class to which her policy belonged as aforesaid, and to keep as a separate fund all the incomes, profits and accumulations that should accrue therefrom, or upon policies of the insured in such class, and to add thereto as forming part of and in addition to the fund so created for said class to which the plaintiff belonged, the shares of those members who should die during the ten-year dividend or Tontine period, the shares of those members which should become forfeited for any cause during said term, and all accumulations and profits belonging thereto, and to declare annual dividends of the income and profits so derived, and to invest and reinvest from year to year the dividends so derived until the end of the ten-year dividend or Tontine period, and to hold the same in trust, and then to divide the same to the survivors of the class to which the plaintiff belonged.” The appellant’s contention is that the defendant’s neglect to keep and invest separately the funds referred to, justified the plaintiff in her neglect to perform, and established a cause of action against defendant. The policy is annexed to, and by the clause quoted is made a part of, the complaint.

Assuming for the present that the facts alleged, have been so pleaded, as to entitle the plaintiff to urge them as an excuse for her admitted non-performance, we are brought to an inquiry as to their sufficiency for such purpose. This depends upon the considerations: 1. Whether the complaint correctly describes the obligations assumed by the defendant; 2. Whether the obligations, in fact, assumed by it constituted material conditions of the contract; 3. Whether there is a sufficient aliegation of the non-performance of them by defendant; and 4. Whether their non-performance was the occasion of injury to the plaintiff. These questions must be determined by an examination of the policy, and a consideration of its provisions.

In interposing the demurrer, the defendant did not thereby admit the construction put upon the contract by the pleading demurred to, or the correctness of inferences, drawn from the facts admitted, but only the truth of such facts as were properly stated therein. (Bonnell v. Griswold, 68 N. Y. 294; Buffalo Catholic Institute v. Bitter, 87 id. 250.)

• The contract itself having been set forth, the rights of the parties must be determined by the terms of that instrument, as construed by the court. Reference thereto shows that the material obligations assumed by the defendant, related to the payment to the assured, or in the event of her death, to certain other persons described, the sum of $5,000, upon the death of Abraham Borgardus; and (2) in case the said Bogardus survived for a period of ten years and the said policy should continue in force until that time, the payment in cash or in annuity bonds to the said assured, or upon her direction, of a proportional share of the aggregate sum produced by the accumulations of dividends, accretions' and interest, during the period of ten years, from a fund to be created by certain contributions furnished by a class of policy-holders, consisting of those who effected insurance on the .Tontine plan during the year 1871; (3) That the surplus and profits derivable from certain described funds, shall be equitably apportioned among the surviving policy-holders belonging to the class from which such funds were derived.

The obligations assumed in the policy are not changed or enlarged by the consent of the assured, given in the application for insurance to the defendant, to place all dividends accruing on her policy in a reserve fund. That provision merely waives the right of the assured to demand immediate payment, of -any annual dividend to which she might be entitled. No express obligations are assumed by the defendant either in the policy or by the application with reference to the management or investment of the funds in question, and the Tontine plan is referred to as a known and understood system of insurance, pursued by all life insurance companies of similar character to determine in a certain contingency, the extent of the company’s liability to a special class of its policy-holders. It contemplates the union of the interests of a large number of persons, and the administration of a fund for their mutual benefit, and from its very nature is incapable of being moulded and managed, to meet the special requirements of particular individuals. Upon the ■ accession of any person to this class, he becomes interested in the contributions of every other member, and neither of them can afterward withdraw his contribution, without injury to the rights of all others interested in the fund. It is the very nature of a corporate company carrying on the business of insurance, that it should be subjected, at indefinite periods to the payment of large expenses, and the incurrence of large liabilities and risks, and its only resource, for the satisfaction of such obligations consists in the fund created by the premiums paid to it by its policy-holders. This fund is necessarily subjected to drafts upon it for uncertain amounts at uncertain intervals, and to require changes of its investments, and is incapable either in its entirety, dr any specific part thereof, of being kept invested and managed separately from all other funds.

We, therefore, think that the use of these moneys in connection with its other funds, and their investment and management according to the mode, which, in the judgment of the defendant, was best adapted to promote the interests of all of •its policy-holders, was entirely legitimate and in accordance with the true meaning of the contract.- The Tontine plan undoubtedly contemplated such action, on the part of the insurers, as would enable them, at the expiration of the ten-year dividend period, to determine the aggregate of such dividends, accretions and interest, and to divide the same among the survivors of the class to which they belonged, according to their respective rights therein; but it seems to us, that it does not involve the necessity of keeping, separate from its other funds, either the premiums paid by such class or their profits or accumulations, or the duty of separately handling, investing or accumulating such funds.

The complaint does not allege that the defendant has failed to keep such an account of "these funds as will enable it to determine their amount, and the respective shares of the participators therein; but the argument assumes that this is impossible, unless they are separately kept and invested. We do not think this is necessarily true. The method to be adopted by the defendant in managing the funds paid to it by its several policy-holders was necessarily, under the insurance laws of the State, confided to its judgment, discretion and skill, and the plaintiff has no cause for complaint in reference thereto, except in the event of the survivorship of Abraham Bogardus for ten years, and the continued existence of her policy. Upon the happening of such event, and not until then, she would become entitled to an accounting as to such fund.

No reason is alleged in the complaint why the rights of the respective parties entitled thereto are not determinable from the data kept by the company, and we are unable to perceive any insuperable obstacle, to a proper accounting as to such moneys, in the fact of an omission by the company to keep and invest them separately from its other fund.

It does not enlarge the liability of the defendant to the plaintiff to denominate the relations between them as those of trustee and cestui que trust, because if the defendant had any trust duty to perform in relation to such fund it was expressed in the policy, and was simply to receive, keep and invest it carefully and prudently and so as to be able to divide it, and its accumulations, among those who should prove to be entitled thereto, at the expiration of the prescribed period. We are, therefore, of the opinion that the policy did not require the defendant to keep and invest the funds referred to separately, and that no breach of its contract is stated in the allegation that it neglected to do so.

We are also of the opinion that even if am obligation to do so could be implied from the provisions of the policy, that it furnishes no excuse for the non-performance by the plaintiff of her contract.

The provision of the policy relating to an investment of the dividends upon the Tontine plan, was simply an incident of the main object of the contract of insurance. It was entirely problematical whether there would be any increase of the fund, or dividends, upon the investment, or whether any claimant would live to realize his interest therein, and a failure in the performance of this part of the contract was of minor importance, and could not operate as an excuse for non-performance by the assured of her obligations. It is elementary that where agreements go to a part only of the consideration on both sides, and a breach may be paid for in damages, that the promises are independent. (2 Pars, on Cont. 677.)

There is no allegation in the complaint of the insolvency of the defendant, or its inability to respond in damages for any breach of its contract. Its liability was purely a pecuniary obligation and capable of being fully performed by the payment of money, or its equivalent. The method by which the Tontine fund was created and managed, was designed simply as a means of determining the amount to which the policy-holder would be entitled in a certain event, and there is no difficulty in ascertaining such amount, in the case of a breach by the defendant of the contract relating to the mode of managing the fund. Por this reason also we are of the opinion that the complaint does not allege a sufficient excuse for the non-performance by the plaintiff, of the precedent conditions of her contract.

In considering the questions presented, we have not omitted to observe the claim made by the plaintiff, that the action can be sustained upon the theory of an agreement existing outside of the policy, and contracted simultaneously with it. This claim is attempted to be supported by importing into the count demurred to, the allegations of the first count purporting to state a cause of action in tort. We can hardly conceive a more incongruous or objectionable method of framing a cause of action than that attempted in this case; but inasmuch as we are of the opinion that even in that way, no cause of action ex contractu is legally stated we refrain from criticising the method pursued.

The second count of the complaint states that the plaintiff there “ repeats and reiterates all the allegations hereinbefore contained, and makes them a part of this her second cause of action.” The allegations material to the question under discussion contained in the first count are substantially as follows: That the defendant is a domestic corporation, organized under the laws of the State of New York for the purpose of insuring lives, and that prior to the time of issuing the policy in question, it had done a large business in the various branches of life insurance, and through its officers and agents for the purpose of inducing the plaintiff to take a policy from such company on the Tontine or ten-year dividend plan, represented that they were then doing business on that plan, and that it gave many and great advantages over the ordinary mode of life insurance. The count further states that certain explanations as to the practical operation of the Tontine plan were made to the plaintiff, but the details of such explanations are not material in this connection. It then proceeds to state that the defendant on the 3d day of November, 1871, issued its policy to the plaintiff, upon the life of Abraham Bogardus, for an insurance of $5,000, on the ten-year dividend system of insurance, and in that connection avers that the defendant then and there represented that it had received and kept separate, and would receive and keep separate all premiums paid upon policies of the same class to which the policy” “of the plaintiff belonged,” etc., and the further allegation that such representations were false and fraudulent and were relied upon by the plaintiff in accepting the policy.

Assuming that these allegations are properly incorporated in the second count, they must be construed in connection with the allegations of that count; and if any inconsistency between the two is found to exist, the allegations contained in the second count must, for obvious reasons, be adopted as containing the statements intended to be relied on by the pleader. It will be observed that the second count also contains allegations referring to the representations made by the defendant, but they are there expressly referred to as having been made by the policy itself, while in the first count it is inferentially only that they are so stated.

It could very justly be held that the pleader did not intend by the reference in question, to repeat the allegations as to representations, or to incorporate in the second count allegations peculiar to an action of tort, and not pertinent and material to the cause of action, there intended to be stated. While it was proper and necessary to the validity of the second count to incorporate therein the allegations referring to the organization of the company and the execution and delivery of the policy in question, it was obviously unnecessary and highly objectionable to repeat therein, the allegations intended to charge the defendant with the commission of a tort.

It is not now claimed by the appellant that she is entitled to recover under the second count for any other cause of action than one arising ex contractu, and in view of these circumstances it might well be said that the pleader did not intend to include in the second count any of the allegations of the first, importing the commission of a fraud.

Being of the opinion that there are other reasons why the incorporation in the second count of the allegations of the first does not entitle the plaintiff to maintain a cause of action ex contractu, we refrain from disposing of the ease on the grounds above referred to.

The first objection to the plaintiff’s contention is, that assuming there were actionable representations, made by the defendant to the plaintiff, they were made at the time of and concurrently with the issuing of the policy, and were necessarily incident to, and dependent upon, the principal agreement of insurance thereby effected, and must stand or fall with the cause of action based thereon.

The condition precedent of the regular payment of annual premiums by the plaintiff applies as well to the incidents of the contract as toffs express provisions, and furnishes the same defense to an action based thereon as we have seen it does to the action on the policy.

It must, of course, be borne in mind that we are now inquiring only whether the plaintiff has alleged in her complaint any sufficient excuse for omitting- to pay the annual premiums.

Secondly, we are also of the opinion that the statement contained in the first count does no.t show any actionable cause resting in contract against the defendant. It simply alleges that the defendant made certain representations as to its past and future conduct, but those representations were not alleged to have been a warranty, or to have been made under such circumstances and in such form and manner, as to constitute a valid contract. A mere representation made during the pend-ency of negotiations for a contract is not actionable ex contract <ü even if untrue. It must be alleged to have been material, and made under such circumstances as to constitute a contract, and show it to have been intended as a warranty of the fact represented to sustain such a cause of action. (Swett v. Colgate, 20 Johns. 196; Moss v. Mather, 51 N. Y. 108, 110; Moore v. Noble, 53 Barb. 425.) A warranty may be inferred from proof of a representation, but the naked allegation of a representation, is not equivalent to an allegation of a warranty or a contract. A Representation is simply evidence from which a contract may or may not be inferred, and it is a fundamental rulé of pleading, under all systems, that the facts constituting a cause of action must be alleged, and not the evidence of such facts.

We are further of .the opinion that the representation in question is substantially the same as that alleged in the second count and is not a material representation, authorizing the plaintiff to omit the performance of the conditions assumed by her. This question has already been sufficiently discussed; and we conclude that, for the reason stated, the judgment must be affirmed and judgment absolute ordered for defendant.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    White’s Bank of Buffalo et al., Respondents, v. Matilda Farthing et al., Appellants.
    While judgment creditors, holding distinct and several judgments, may-unite in an action to set aside a conveyance of land by the common debtor, made in fraud of their rights as creditors, they are not all necessary parties to such an action, and where one of them has commenced such an action, the Code of Civil Procedure (§ 452) does not require the court to compel the plaintiffs to bring in the other judgment creditors.
    An order, therefore, denying a motion of other judgment creditors to be allowed to intervene in such an action is discretionary and is not reviewable here.

      People v. A. & V. S. S. Go. (77 N. T. 232), Osterhoudt v. Supervisors (98 id. 239),. distinguished.

      It seems that the judgments are liens upon the land in the order of their docketing, and if the plaintiff in the action to set aside the conveyance succeeds in establishing the fraud, he is entitled to a judgment setting aside the conveyance ¿imply, or the court may compel the fraudulent grantee to convey the lands to a receiver, to be sold to satisfy plaintiff’s judgment. If it simply sets aside the conveyance, the land will remain charged with the-liens of the several judgments in their order; if it appoints a receiver and directs a conveyance to him, and the plaintiff in the action is a junior judgment creditor, a purchaser under the receiver’s sale will take as of the time of the debtor’s conveyance to 'the receiver, subject, however, to the liens of the prior judgments.
    The result, therefore, in either case will not affect the liens of said judgments.
    In such an action plaintiff also sought to charge certain other lands with the lien of its j udgment, on the ground that the defendant was entitled to it as devisee of Gb, who had caused it tobe conveyed to K. as security for a debt which had since been paid. Held, that this did not entitle the senior judgment creditors to intervene, as a judgment in accordance with the relief demanded would not prejudice any right which they might have to enforce their judgments against the lands.
    (Argued January 19, 1886;
    decided January 26, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made April 23, 1885, affirming an order of the Special Term denying motions on the part of the German-American Bank of Buffalo, the Merchants’ Bank of Buffalo, the Third Rational Bank of Buffalo, and others, that they might be brought in as parties defendant herein.
    The action was brought by plaintiff as judgment creditor of the defendant Matilda Farthing, to set aside certain conveyances of real estate made by her, which were alleged to be fraudulent as against creditors, and for the sale of such real estate, etc.; also to have plaintiff’s judgment declared to be a lien on certain other lands.
    The facts so far as material are stated in the opinion.

      AdeTbert Moot for appellants.
    The appellants each have an interest in the subject of the action, and in real property the title to which is to be in some manner affected by the judgment ; and as they have made application therefor, the court must direct them to be brought in by a proper amendment of the summons and complaint. (Code of Civ. Pro., §§ 448, 452 ; People v. A. & V. R. Co., 77 N. Y. 232 ; Osterhout v. Board, of Supervisors, etc., 98 id. 239; Jeffries v. Cochrane, 57 Barb. 551 ; Edmeston v. Lyde, 1 Paige, 637 ; Beck v. Burdette, id. 305 ; Corning v. White, 2 id. 567; Ballou v. Boland, 14 Hun, 355; Boynton v. Rayson, Clarke, 584 ; Pitch v. Smith, 10 Paige, 9 ; Baffovd v. Douglass, 4 Edw. 537; Brown v. Nichols, 42 N. Y. 26; Haddon v. Spader, 20 Johns. 554; Lynch v. Johnson, 48 N. Y. 27; Erickson v. Quinn, 15 Abb. [N. S.] 166.) It is clear that Kelly, upon plaintiff’s own showing, holds the property seventhly described, in trust for creditors ; he is, therefore, a trustee thereof, the appellants are really cestuis que trust, and standing in that position they have a right to intervene, for they are real, beneficial, equitable owners of the property. (1 R. S. 728, § 52 ; 3 R. S. [7th ed.] 2181, § 52; Travis v. Meyers, 67 N. Y. 542; Kerr v. Blodgett, 48 id. 62.)

      Truman C. White for respondents.
    Elizabeth Farthing is not a necessary party, because "the title to the premises upon which she holds the mortgage being still in Matilda Farthing, those premises can be, and at all times since the appellants recovered their judgments could have been, sold upon execution, and the purchaser at such, sale would get a perfect title as against her mortgage, if it be in fact invalid or held in trust for the owner of the fee. (Chautauqua Co. Bk. v. Risley, 19 N. Y. 369.) By prosecuting this suit the plaintiffs are rewarded as vigilant creditors, and the commencement of the action is regarded in equity as an actual levy upon the equitable assets of the debtor. All the title the defendants have in the property alleged to have been fraudulently transferred becomes subject to and bound by that lien. (Jeffries v. Cochrane, 57 Barb. 557; Edmeston v. Lyde, 1 Paige, 637; Beck v. Burdette, id. 305; Corning v. White, 2 id. 567; Ballou v. Boland, 14 Hun, 355; Boynton v. Rawson, Clarke, 584; Fitch v. Smith, 10 Paige, 9; Safford v. Douglass, 4 Edw. 537; Brown v. Nichols, 42 N. Y. 26; Hadden v. Spader, 20 Johns. 554.) When several judgments are rendered against a debtor, after he has fraudulently conveyed his property, the judgment creditor who first sets aside the title of the fraudulent grantee and subjects the property to payment of his judgment obtains priority over other judgment creditors though claiming under judgments prior to his own. (Edmeston v. Lyde, 1 Paige, 637; Lynch v. Johnson, 48 N. Y. 27; Spring v. Short, 90 id. 538.) The appellants have no “interest” in the premises covered by the Kelly mortgage, within the meaning of section 452 of the Code. They only have a general lien upon those and all other premises in the same county, belonging to the judgment debtors. (Pom. Eq. Jar., §§ 1057, 1233, 1234, and notes.)
   Andrews, J.

The judgments in favor of the German-Amer-icon Bank, were recovered November 13, 1883, and the deficiency judgment in favor of the banks other than the plaintiff, April 8, 1884. The judgment in favor of the plaintiff’s bank was recovered February 4, 1884, and this action was commenced November 14, 1884. The several judgments became liens on lands fraudulently conveyed by Matilda Farthing, the judgment debtor, in the order of their docketing, and they could have been sold on executions issued on the judgments. The plaintiff however elected to bring its action to remove the alleged fraudulent obstruction created by the conveyances. If it succeeds in establishing the fraud it will be entitled to a judgment setting aside the conveyances simply, in which case it can proceed to enforce its judgment by a sale of the land on execution unembarrassed by the cloud created, or the court may proceed further and compel the fraudulent grantees to convey the lands to a receiver to be sold to satisfy the plaintiff’s judgment. The judgments in favor of the other banks will in no way be affected whichever form the judgment in this action may take. If it simply sets aside the fraudulent conveyances, the land will remain charged with the liens of the several judgments in the order of their docketing, and the proceedings to enforce them will be regulated by the statute. If it goes further and appoints a receiver and directs a conveyance to him, a purchaser under the receiver’s sale will take title as of the time of the debtor’s conveyance to the receiver, subject however to the judgments in favor of the banks other than the plaintiff. (Chautauque County Bank v. Risley, 19 N. Y. 369.) The result of the plaintiffs’ action will not therefore affect the lien of the judgments in favor of the other banks who seek to intervene in this action. The plaintiffs seek also to charge the Swan street lot, with the lien of its judgment, on the ground that George Farthing caused it to be conveyed to Kelly as security for a debt owing by him to Kelly which has been since paid, and that the judgment debtor, Matilda Farthing, as the devisee of George Farthing, is entitled to the land. The other banks may commence similar actions to reach the Swan street lot, and the plaintiffs’ action, followed by judgment in accordance with the relief demanded will not prejudice any rights which the other banks may have to enforce their judgments against it. According to the rule established in this State, judgment creditors holding distinct and several judgments may unite in an action to set aside a conveyance by the common debtor, made in fraud of their rights as creditors. (Brinkerhoff v. Brown, 6 Johns. Ch. 139.) This is a convenient rule, but it is not a rule of obligation, but one conferring authority merely. It has never been held that all judgment creditors so situated were necessary parties to such an action. We think section 452 of the Code does not require the court on application to compel a plaintiff to bi’ing in a judgment creditor not originally made a party, as a party to an action instituted by him to set aside a fraudulent conveyance, although its power to direct it to be done cannot be doubted. The rights of the creditor not made a party, will not be prejudiced by thé judgment in the action. A judgment creditor has no title to the land of the judgment debtor, but a lien only, which may, by subsequent proceedings become the foundation of title, nor has he any interest in the subject-matter of the action brought by another judgment creditor within the meaning of the section. He may have an interest which will be subserved by having the conveyance set aside. But he will not be concluded by a denial of that relief in the action of the other creditor, and whatever the result of that action may be, his rights and remedies remain as before. The cases of People v. Albany & V. R. R. Co. (77 N. Y. 232), and Osterhoudt v. Supervisors, etc. (98 id. 239), cited by the appellants are not analogous. No effectual judgments could be rendered in those actions, without directly cutting off or impairing rights of persons not parties, and it was held in accordance with the settled rule in equity that they should be brought in so that there might be a complete determination of the controversy.

We think the order appealed from was discretionary and that the appeal should, therefore, be dismissed.

All concur.

Appeal dismissed.


author: Earl, J.

text:
    Augustus R. Griffin, Receiver, etc., Respondent, v. The Long Island Railroad Co., Appellant.
    Where an action to recover a chattel is baaed solely upon a wrongful detention, a general denial puts in issue, as well, plaintiffs’ property in the chattel as the wrongful detention, and defendant under such a plea may show title in a stranger although he does not connect himself with such title.
    Where an answer, after sufficiently admitting or denying certain allegations of the complaint, denies each and every allegation not thus admitted or denied, this is a good general denial.

      Clark v. Dillon (97 N. T. 370), distinguished.
    (Argued January 19, 1886;
    decided February 2, 1886.)
    Appeal from the judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 11, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial.
    The nature of the action and the material facts are stated in the opinion.

      Edward C. Syrague for appellant.
    Plaintiff having merely proved the bare fact of defendant’s possession, defendant should have been allowed to prove its ownership of the cars although not set up in its answer. (Knapp v. Roche, 94 N. J. 333; Weaver v. Barden, 49 id. 297; Stowell v. Otis, 71 id. 38; Beatty v. Swartout, 32 Barb. 293 ; Anistici v. Holmes, 3 Den. 244; Seidenbaeh v. Biely, 36 Hun, 211.) Plaintiff is restricted to the theory which he lias chosen, and cannot now claim that his recovery was for a cause of action which he made no effort to establish upon the trial. (Genet v. D. ob H. O. Co., Ct. of App., 13 N. Y. Weekly Dig. 200; McKeon v. See, 51 N. Y. 300; Sherman v. Parish, 53 id. 388; Tyng v. Warehouse Co., 58 id. 313; King v. MoKellar, 94 id. 317; Stowell v. Otis, 71 id. 38; Greenfield v. Mass. Mut. Life Ins. Co., 47 id. 437; Davis v. Hoppoclo, 6 Duer, 254; Miller v. Decker, 40 Barb. 234; Robinson v. Frost, 14 id. 536 ; Shoenrock v. Fa/rley, 49 Super. Ct. 302.) Defendant’s allegation that the property referred to in the complaint had been in possession of the Southern Railroad Company of Long Island, and its assigns claiming title thereto for more than six years prior to the commencement of this action, was a sufficient allegation, within section 1723 of the Code of Civil Procedure, that a third person as against the defendant was entitled to the chattels. (Thomas v. Desmond, 12 How. Pr. 321; Whiton v. Snider, 88 N. Y. 304; Rawley v. Brown, 71 id. 85; Turner v. Brown, 6. Hun, 331; Hemmingway v. Poucher, 98 N. Y. 288; Wall v. Buff. Water-Works Co., 18 id. 119; Olcott v. Carroll, 39 id. 436; Acer v. Hotchkiss, 97 id. 395.) The time for the running of the statute must be computed from the time when the right to make the demand was complete. (Dickinson v. Mayor, etc., 92 N. Y. 581; Drake v. Wilkin, 30 Hun, 537.)

      Augustus N. Weller for respondent.
    Defendant not having set up the title in its answer nor in any manner informed plaintiff of the claim, no error was committed by the court in refusing to allow it to show title to the cars in another corporation. (Howell v. Otis, 71 N. Y. 36; 69 id. 48; 38 id. 161; 3 Denio, 244; 12 Wend. 30; 33 Barb. 229; 31 N. Y. 614; 14 Abb. 147; 46 Barb. 642; McKyring v. Bull, 16 N. Y. 297; 18 How. 144; 12 Abb. [N. S.] 139; 13 How. 273, 565; 12 N. Y. 9; 38 id. 31; 73 id. 496; 17 Weekly Dig. 7; 84 N. Y. 420.) Alleging that the property had been in the possession of the Southern Railroad Company claiming title thereto for more than six years prior to the commencement of the action, does not set up title in that company, nor is it any notice that defendant relied on such title as a defense. (Dewey v. Moyer, 72 N. Y. 70, 77.) Plaintiff’s title was not in dispute because defendant’s answer did not controvert it. (17 Weekly Dig. 528; 5 Law Bull. 64; 3 Civ. Pro. R. 227; Clark v. Dillon, 2 McCarty’s Civ. Pro. R. 73; 9 Abb. N. C. 303; 1 Civ. Pro. R. 252; 58 How. Pr. 251; Melville Manufacturing Co. v. Salter, Daily Reg., April 27, 1885; Potter v. Frail, 67 How. 145; Clark v. Dillon, 97 N. Y. 370.) The period of limitations must be computed from the time of the accruing of the right of action. (Code, § 116.) The mortgagees whom plaintiff represents could bring no action to recover the property, nor for its conversion, until the default in the payment of the mortgage gave them the right of possession. (Goelet v. Asseler, 22 N. Y. 225; Hull v. Carnley, 1 Kern. 501; S. C., 17 N. Y. 202; Carpenter v. Town, Lalor’s Supp. to Hill & Denio; Gordon v. Harper, 7 Johns. 8; Bradley v. Copley, Mann., Gr. & Scott, 685; Fen v. Bittleson, 8 Eng. Law & Eq. 485; 5 Duer, 434; 28 N. Y. 586.)
   Earl, J.

This action was brought to recover the possession of two railroad cars. The plaintiff in his complaint alleged that he was the receiver of the Southern Hempstead Branch Railroad Company, and that he as such became entitled to the two cars; that some time between the 1st of July, 1875, and the 1st of July, 1878, the defendant took from the possession of his railroad company the two cars, then the property of that company; that the cars were in the possession of the defendant and had been for several years, but that the defendant refused to deliver the same to the plaintiff, although before this action was commenced he made a demand in writing upon it so to do, and that it unjustly detained them from him. There is no allegation in the complaint that the defendant wrongfully took possession of the cars or wrongf ully became possessed of them. The only wrong alleged is the refusal of the defendant to deliver the cars to the plaintiff upon his demand and the detention of them from him after that. The defendant in its answer alleged that it had no knowledge or information sufficient to form a belief as to the truth of the allegations contained in the complaint of the appointment of the plaintiff as receiver; admitted that the plaintiff had made a demand in writing of it to deliver the ears, and that it had not deliverd them; denied on information and belief each and every allegation of the complaint not before admitted or controverted; alleged on information and belief that the cause of action set forth in the complaint did not accrue within six years before the commencement of the action, and that the property referred to in the complaint had been in the possession of the Southern Railroad Company of Long Island, and its assigns, claiming title thereto for more than six years prior to the commencement of this action.

Upon the trial the plaintiff gave evidence tending to show that the Southern Hempstead Branch Railroad Company owned the cars and that the title to them came to him as receiver of that company; and he proved the value of the cars and then rested. The defendant offered to show a sale of the two cars to the Southern Railroad Company of Long Island by the persons who owned them before they were claimed to have been sold to the plaintiff’s railroad company. The plaintiff objected to the evidence and the objection was sustained, the court ruling that the question of title in a third party was not raised by the pleadings, and the defendant excepted to the ruling. Later in the progress of the trial, the defendant offered to prove title in the Southern Railroad Company, of Long Island, and its successor, the Brooklyn and Montauk Railroad Company, and that it was the lessee of the latter company and as such in possession of all its property. The evidence was objected to by the plaintiff, and the objection sustained on the ground that the title had not been set up in the answer, and the defendant excepted to the ruling. In these rulings excluding evidence of title to the cars out of the plaintiff, we think the court erred.

The action to recover a chattel, as regulated by the Code of Civil Procedure, is substantially a substitute for the action of replevin as it had previously existed. At common law and under the Revised Statutes there were two actions of replevin, one in the cepit and one in the detvnet. In replevin in the oepit the general issue was tendered by the plea of non oepit, and that put in issue only the taking at the place stated in the declaration. That rule of the common law was copied into the Revised Statutes. (2 R. S. 528, § 39.) Under that plea the defendant could not show title in himself or in a stranger. . As it was necessary in such an action for the plaintiff only to show that he was in possession of the property and that the defendant wrongfully took it from his possession, the plea put in issue all plaintiff was, in the first instance, bound to prove. Without more, property in a third person could be no defense to such an action. Therefore, in order to defend such an action, the defendant was bound to prove either property in himself, or property in a third person with which he was in some way connected and under which he could justify, and the facts he was bound specially to allege.

But in an action of replevin in the detinet, the general issue was tendered by the plea of non detinet, and that plea at common law put in issue, as well the plaintiff’s property in the goods as the detention thereof by the defendant. And it was provided in the Revised Statutes -(2 R. S. 529, § 40), that when the action is founded on the wrongful detention of the goods, and the original taking is not complained of, the plea of the general issue shall be, that the defendant does not detain the goods and chattels specified in the declaration, or any part thereof, in manner and form as therein alleged; and such plea shall put in issue, not only the detention of such goods and chattels, but also the property of the plaintiff therein.” It was also provided by the Revised Statutes (2 R. S. 528, § 36), that the action of replevin might be founded upon both the wrongful taking and the detention of the property, in which case it was necessary that the declaration should allege the wrongful taking and also allege that the defendant continued to detain such property.

It cannot be doubted that this complaint contained all the allegations requisite to show a wrongful detention of the cars. By a liberal construction it might be held to be framed in a double aspect, both for the wrongful taking and the wrongful detention. Upon the trial there was no proof offered or given to show the wrongful taking of the cars, but the plaintiff simply gave proof to show the wrongful detention. Therefore, we think the action should have been treated as if it had been brought for a wrongful detention of the cars. It was necessary, therefore, for the plaintiff to show his title to the cars ; and what it was necessary for him to show to maintain his action the defendant had the right to controvert by proof: under its general denial. Its general denial put in issue, not only the wrongful detention, but plaintiff’s title, and upon that issue it had the right to show, not only title in itself, but title out of the plaintiff and in a stranger. The plaintiff, seeking to take property out of the possession of the defendant, was bound' to show title in himself, and the defendant could defend itself by showing that he did not have title, and thus did not have the right to take from it the possession which it had acquired. (Caldwell v. Bruggerman, 4 Minn. 270; Jones v. Rahilly, 16 id. 320; Kennedy v. Shaw, 38 Ind. 474; Sparks v. Heritage, 45 id. 66.) In Kennedy v. Shaw, decided under a system of pleading similar to our own, it is said: “ Where the general denial is pleaded to a complaint in an action to recover the possession of personal property, the plaintiff must show his right to the possession of the property as against anybody else. He must recover upon the strength and validity of his own title and right to the possession of the property, and if the defendant can show the property, and right to the possession of the property to be in himself or in a third person, he may do so under the general denial and thus defeat the action. This broad and general statement of the rule, however, would not enable one who had taken property from the actual possession of another to justify the taking by the allegation and proof of title in a third person with which he did not connect himself.

There is nothing in the case of Stowell v. Otis (71 N. Y. 36) in conflict with these views; but regarding this as an action for-the wrongful detention of the cars, that case is an authority for the views we have expressed.

Under our system of practice, and under every rational, logical system of pleading, the defendant must, under a general denial, be permitted to controvert by evidence .everything which the plaintiff is bound in the first instance to prove to make out his cause of action. (Robinson v. Frost, 14 Barb. 536; McKyring v. Bull, 16 N. Y. 297; Wheeler v. Billings, 38 id. 263; Weaver v. Barden, 49 id. 286.)

The denial in this answer of each and every allegation of the complaint not hereinabove admitted or controverted,” is a good general denial. What had been before admitted and controverted was clearly specified, and hence there was no doubt or confusion as to the application of this general denial; and this answer is not, therefore, condemned by the- decision in Clark v. Dillon (97 N. Y. 370).

The appellant also makes a point as to the statute of limitations. Upon the new trial it should be permitted to prove all the facts bearing upon that defense, and then the application of the law to the facts will probably not be difficult. We do not deem it our duty to say more about it now.

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

All concur, except Dahforth, J., not voting.

Judgment reversed.


author: Danforth, J.

text:
    George S. Cahill, Respondent, v. George J. Smith, Appellant.
    Plaintiff purchased of defendant certain personal property covered by a chattel mortgage ; the latter gave a bill of sale by which he covenanted “ to warrant and defend the sale,” and a writing by which he certified that the chattel mortgage would thereafter be paid by him; not having been paid it was foreclosed and the property was purchased by N. for §700, the amount due on the mortgage. N. claimed the property, and plaintiff paid him §1,000 therefor. In an action to recover damages for the breach of defendant’s agreements plaintiff recovered the amount due on the mortgage. Held no error; that no actual eviction was necessary to sustain the action; that as he could not withhold the property from the purchaser without becoming a wrong-doer, his submission, although peaceable, was not voluntary.
    (Argued January 21, 1886;
    decided February 2, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 11, 1883, which affirmed a judgment in favor of the plaintiff, entered on a verdict.
    The nature of the action and the material facts are stated in the opinion.

      N. C. Moak for appellant.
    Upon a warrant in a bill of sale of personal property there must be an actual eviction before the vendor can be held. (Bordwell v. Collie, 1 Lans. 141, 144, 146; 45 N. Y. 494, 495; Greenvault v. Davis, 4 Hill, 643; St. John v. Palmer, 5 id. 599, 602, 603; Atkins v. Hosley, 3 T. & C. 322, 324.) Eviction is an actual expulsion. (Jackson v. Cole, 4 Cow. 485; Fellows v. Lyon, 6 N. Y. Weekly Dig. 424; Case v. Hall, 24 Wend. 102.)
    M. F. McGoldrick for respondent.
    Maguire’s hostile assertion of his paramount title was an eviction and a breach of defendant’s covenant. (Bordwell v. Collie, 45 N. Y. 495.) A purchase of paramount title hostilely asserted is a breach of the covenant of warranty. (Rawle on Covenants for Title, 278; Hunt v. Amidon, 4 Hill, 345; Bragelman v. Dane, 69 N. Y. 69.)
   Danforth, J.

On the 6th of January, 1882, a mortgage was executed to one McElroy, upon certain store fixtures. Afterward the defendant sold them to the plaintiff at the price of $1,800, giving a written bill of sale, dated June 23, 1882, with a covenant “ to warrant and defend the sale ” thereof “against all and any person or persons,” and a writing dated June 24, 1882, acknowledging payment of “ the sum of $1,800, the consideration named in the bill of sale,” and also certifying that the chattel mortgage above referred to “ will hereafter be satisfied by me.” These papers were signed by the defendant.

In December, 1883, the debt being unpaid, the mortgage was foreclosed by its then owner, and the mortgaged property sold to one Horton for $700, the amount due on the mortgage. He claimed the property, and to retain it the plaintiff paid him $1,000. It appeared that Horton did not in fact remove the fixtures, and that the plaintiff’s business, in which they were used, was not interrupted.

This action was for damages by reason of the breach of defendant’s agreement. The facts were not disputed, and the trial judge held the plaintiff entitled to recover, but,.only $700, the amount due on the mortgage, and for that sum directed a verdict in his favor. Upon the trial the defendant claimed among other things that no actual eviction had been proven, and its necessity presents the only point made in support .of this appeal.

We think it is without merit. The title to which the plaintiff yielded was paramount to that acquired by him from the defendant, and he was not required by violence to resist the lawful demand of the owner. He could not withhold the property without becoming a wrong-doer, and his submission, therefore, although peaceable, was not voluntary. Under such circumstances, the right of a purchaser to redress for breach of a warranty of title is well settled. (Bordwell v. Collie, 45 N. Y. 494; McGiffin v. Baird, 62 id. 329.) In the present case, however, the plaintiff was not only deprived of his title by the enforcement of a valid prior mortgage, and sale under it, but regained a right to its possession only by paying money upon an obligation which the defendant had expressly agreed to satisfy, but did not. There was a breach of both agreements, and the plaintiff was justly entitled to recover.

The judgment should be affirmed.

All concur.

Judgment affirmed.


author: Per Curiam.

text:
    Charles Stewart et al., Appellants, v. William D. Marvel, Respondent.
    Defendant contracted to sell plaintiff ten car-loads of iron—“ (C) Blooms ”— to be delivered “as fast as they may be produced, small enough to meet the usual requirements of measure.” Five car-loads were delivered. In an action to recover damages for non-delivery of the residue, held, the contract required not simply that the blooms should be delivered as fast as they were actually produced, but that they should be produced in the ordinary operations of defendant’s forge, with reasonable diligence and by reasonable and proper efforts, and defendant was not authorized to stop the production from motives of economy or convenience.

      Evidence was offered on the part of plaintiffs and received under objection, that defendant stated, at the time the contract was made, that he could produce a car-load of blooms for delivery every ten days. Held no error.
    (Argued December 10, 1885;
    decided February 9, 1886.)
    Appeal, from order of the General Term of the Supreme Court, in the second judicial department, made at the September term, 1883, which reversed a judgment in favor of plaintiffs, entered upon the report of a referee.
    This action was brought to recover damages for an alleged breach of a contract. The contract and the material facts are set forth in the opinion.

      Walter D. Edmonds for appellants.
    Where an indefinite time is set for performance of the contract performance must be had within a reasonable time, to be determined by reference to defendant’s capacity and ability to produce, without interfering with the usual and regular course of business or production. (New Haven Co. v. Quintard, 6 Abb. Pr. [N. S.] 128; Cocker v. Franklin Co., 3 Sumn. 530; Tufts v. McClure, 40 Iowa, 317; Atwood v. Cobb, 16 Pick. 237.) In the construction of a written instrument, so worded that it is ambiguous, oral evidence to explain the meaning attributed to the words by the parties is not only competent but indispensable. (Almgren v. Dulith, 5 N. Y. 28; Ely v. Adams, 19 Johns. 317; French v. Carhart, 1 Comst. 102; Tochman v. Brown, 33 N. Y. Super. Ct. [J. & S.] 409; Grey v. Harper, 1 Story, 588; MacDonald v. longbottom, 1 El. & El. 981, 985, 987; Thorington v. Smith, 8 Wall. 1; Stoops v. Smith, 100 Mass. 63; Bradley Steam Packet Co., 13 Pet. 94; Duncan v. Topham, 8 id. 225; Anderson v. R., W. & O. R. R. Co., 56 N. Y. 341; Proctor v. Hartigan, 2 N. E. Rep’r, 99; Herring v. Boston Iron Co., 1 Gray, 134.) Every breach of contract implies damages, and the measure of damages in such cases as this at bar is the difference between the contract and the market-prices of the undelivered article, or, in the absence of the latter in the market, the market-prices of the nearest substitute that cart be found. (Booth v. Rolling Mill Co., 60 N. Y 492; Sedg. on Meas, of Dam. 557, note; Dana v. Fiedler, 12 N. Y. 70; Hinde v. Liddle, L. R., 10 Q. B. 265.) Plaintiffs’ letters of March ninth and twelfth, to the company did, in effect, extend time of delivery until March 28, 1880. But they did so conditionally only; there is nothing in the evidence to show that either defendant or his agent, the company, ever acted in any way on this proffered extension. The letters, therefore, were of non-effect. (Bacon v. Cobb, 45 Ill. 77; Collins v. Baumgardner, 52 Penn. St. 461; Frus v. Rider, 24 N. Y. 367; Bish. on Cont., § 647; Proctor v. Hartigan, 2 N. R. 99; Almgren v. Dulith, 1 Seld. 28; 1 Ell. & Ell. 981-987; Stoop v. Smith, 100 Mass. 63; Herring v. Boston Iron Co., 1 Gray, 134.) In construing the clause ‘ ‘ say as fast as they may be produced ” the rule contra prof erentum applies. (Ripley v. Larmouth, 56 Barb. 25; Marvin v. Stone, 2 Cow. 806; Hoffman v. Ætna Ins. Co., 32 N. Y. 405; White v. Hoyt, 73 id. 511.) There has been a complete breach of the contract. (New Haven Co. v. Quintard, 6 Abb. Pr. [N. S.] 128; Cocker v. Franklin Co., 3 Sumn. 530; Tufts v. McClure, 40 Iowa, 317; Atwood v. Cobb, 16 Pick. 237; Waddell v. Peddick, 13 Ired. [N. C.] 424.) The express words of the contract import an unqualified promise to deliver, and no scarcity of charcoal will excuse performance, when the reason defendant could not procure it was because they were unwilling to pay for it. (Bingham v. Harmony, 12 N. Y. 99; Hydraulic Engineering Co. v. McHaffie, 4 Q. B. Div. 670; 29 Moak’s Eng. Rep. 102; Nelson v. Odiorne, 45 N. Y. 493; Tompkins v. Dudley, 25 id. 272; Booth v. Spuyten Duyvil Rolling Mill Co., 60 id. 491.) The measure of plaintiff’s damage in this case is the difference between the contract price of iron, $55 per ton, and the market-price of the same delivered at Easton, at the time when the contract iron should have been delivered, or the same market-price of the nearest substitute for the contract iron which could be found by plaintiffs, it being shown -that there was no other iron like that called for by the contract to be had. (Booth v. Rolling Mill Co., 60 N. Y. 492; Sedg. on Meas. of Dam. 557; Dana v.
      Fiedler, 12 N. Y. 240; Champagne Case, 3 Wall. 149; 1 Grreenl. Ev., § 120; Abbott’s Trial Ev. 309, 310, 312; Hinde v. Liddle, L. R., 10 Q. B. 265.)

      David McClure for respondent.
    It was one of the incidents of business that interruptions in manufacture might occur, and if the interruption was not caused by the acts of the defendant or his successor to evade the contract, there is no breach. (Del., Lack. & West. R. R. Co. v. Browne, 58 N. Y. 573.) The testimony as to the conversation before or at the time of signing the contract, as to the delivery of a car-load every ten days or week, and upon which the referee based his finding and judgment, should not have been admitted. (Johnson v. Oppenheim, 55 N. Y. 293; Eighmie v. Taylor, 98 id. 288.) The party who suffers from a breach pf contract must so act as to make his damages as small as he reasonably can. (Hamilton v. McPherson, 28 N. Y. 72.)
   Per Curiam.

On the 14th day of Aovember, 1879, the defendant made a contract with the plaintiffs for the sale to them of iron, of which the following is a copy:

“Aew York, 14th November, 1879.
“ Stewart & Co., Easton, Penn. :
“ Sold you to-day ten car-loads of (C) blooms, at $55 per ton, 2,240 pounds, delivered on cars at Easton, Penn., say as fast as they may be produced small enough to meet the usual requirements of measure, payable in thirty days from date of bills.
“ WILLIAM D. MARTEL.”

Across the face was written: “Accepted. Stewart & Co.”

At the date of the contract the defendant was engaged in the production of the iron which he contracted to sell, but shortly thereafter his forge was sold to the Split Rock Forge and Mining Company, which assumed the performance of the contract on his part. Five car-loads of the iron were subsequently delivered to the plaintiffs, and this action was brought by them to recover damages for the non-delivery of the balance; and the real controversy between the parties is as to the proper construction of the contract.

The defendant contends that he was not obliged to deliver the blooms faster than they were actually produced in the operation of his forge, and that as he delivered all he actually produced, he was not in default. The contract should receive a reasonable construction so that, if its language will permit, both parties would be bound to perform m the manner which must have been contemplated by them when the contract was made. It could not have been intended that the plaintiffs should be bound to take the blooms whenever tendered by the defendant and yet he be at liberty to delay the delivery to suit his own convenience or interest indefinitely. It was plainly meant by the language, “ as fast as they may be produced small enough,” that the blooms should be produced in the ordinary operations of the forge with reasonable diligence, and by reasonable and proper efforts. The defendant had no right to omit to produce them from mere motives of economy or convenience, as he was under obligations to produce them.

The referee found that defendant’s forge had the capacity to produce a car-load of blooms every ten days without interfering in any way with the regular running of the forge or its other contracts or business; that he delivered the last of the five car-loads on the 28th of January, 1880, and thereafter delivered no more down to the commencement of this action, in May, 1880, and he found that the usual operations and production of the forgo were suspended and delayed during the months of February, March and April on the grounds of convenience or economy because of the high price of coal; and that after the twenty-eighth of February the defendant failed, neglected and refused to deliver to the plaintiff any more of the blooms. The evidence justified these findings, and they justify the conclusion of law that the defendant was responsible to the plaintiffs for the damages awarded.

Evidence was given by the plaintiffs, against the objection of the defendant, that the defendant stated, at the time the contract was made, that he could produce a car-load of blooms for delivcry to the plaintiffs every ten days. We think this evidence and other like evidence was competent for the purpose of showing the capacity of the defendant’s forge, and how fast, by reasonable diligence and efforts, he could make delivery under his contract. We have carefully scrutinized other exceptions to rulings upon evidence to which our attention has been called, and do not think any of them require a reversal of the judgment entered upon the report of the referee. The opinion of the referee found in the case is quite satisfactory, and we also refer to that for a fuller statement of the reasons upon which we base our decision.

We are, therefore, of opinion that the order of the General Term should bo reversed, and the judgment entered upon the report of the referee affirmed, with costs.

All concur, except Earl, Danforts and Finch, JJ., dissenting.

Order reversed, and judgment affirmed.


author: Eabl, J.

text:
    Matthew C. Uhrig, Respondent, v. The Williamsburgh City Fire Insurance Company, Appellant.
    Under an arbitration clause in a policy of fire insurance, it is the duty of the parties to the contract to act in good faith to accomplish the appraisement in the way provided ; and if either acts in bad faith so as to defeat the real object of the clause, the other is absolved from compliance therewith; and so, when one arbitration fails from default of one of the parties, the other is not bound to enter into a new arbitration agreement.
    Defendant issued a policy upon household furniture which contained a clause providing that in case of failure of the parties to agree as to the amount of a loss each should appoint one arbitrator, who should select an umpire to act with them in case of disagreement. A loss having oc-' curved and the parties disagreeing, each selected an arbitrator in pursuance of the policy, who failed to agree. Plaintiffs testimony tended to show that he asked the arbitrator selected by defendant to agree with his in appointing an umpire, and asked defendant to select a new arbitrator ; but they did not accede to his requests. Defendant’s evidence tended to show that subsequently it made an offer to appoint a new arbitrator, and that the one selected by it offered to unite in selecting an umpire, which, offer plaintiff refused. Before these offers were made the fragments of the broken and damaged articles insured had been removed under order of the city authorities, so that an appraisal had, to a large extent, become impracticable. There was also some evidence tending to show that defendant was not acting in good faith to procure a speedy appraisal, but was using the clause in the policy to force a compromise. Held, that it was a question for the j ury to determine whether there was any breach of the policy on the part of plaintiff; and that a refusal to submit the question to the jury was error.
    (Argued January 20, 1886;
    decided February 9, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the second judicial department, made December 11, 1883, which reversed a judgment in favor of defendant, entered upon an order dismissing plaintiffs complaint on trial. (Reported below, 31 Hun, 98.)
    This action was upon a policy of fire insurance, the particulars of which as well as the material facts are set forth in the opinion.

      Albert G. McDonald for appellant.
    The condition to arbitrate the question of the amount of the loss and damage contained in this policy was a valid one, and the parties, might by express stipulation, make it a condition precedent like any other condition of the policy. (Wood on Fire Ins. 751; Davenport v. long Island Ins. Co., 10 Daly, 535; Scott v. Avery, 5 H. of L. Cas. 811; 8 Exch. 487; Braunstein v. Accidental Death Ins. Co., 1 B. & S. 782; Thedwen v. Holman, 1 Hurlst. & Colt. 72; President, etc., Delaware & Hudson Canal Co. v. Penn. Coal Co., 50 N. Y. 250, 266.)

      Patrick, Heady for respondent.
    Tinder all the circumstances it was clearly a question of fact for the jury to decide whether or not plaintiff had complied with the conditions of the policy, not a question of law for the court. (Rehberg v. Mayor, etc., 91 N. Y. 137; O'Brien v. Phoenix, 76 id. 459; Short v. Home Ins. Co., 90 id. 16; Smith v. Mechanics & Traders' Ins. Co., 32 id. 399; Wyncoop v. Niagara Ins. Co., 91 id. 478.) The agreement to arbitrate was collateral to the contract, and not a condition precedent which could be pleaded in bar of the action, and did not prevent plaintiff from bringing suit under the policy. (Gibbs v. Continental Ins. Co., 13 Hun, 611; Roper v. Linden, 5 Jur. [N. S.] 491; 1 El. & El. 825; Cook v. N. Y. C. R. R. Co., 3 Keyes, 476; Dunham v. Troy Union R. R. Co., id. 543; Colt v. Sixth Ave. R. R. Co., 49 N. Y. 671.) Plaintiff complied with the arbitration clause of the policy. (Wyncoop v. Niagara Ins. Co., 91 N. Y. 478; Wallace v. Ger. Am. Ins. Co., 4 McCrary’s C. Ct. 123.) The award was not a condition precedent. (Mark v. Nat. Fire Ins. Co., 24 Hun, 565; 91 N. Y. 663; Leach v. Neptune Fire Ins. Co., 58 N. H. 21; Alb. Law Jour. 97; affirmed, Leach v. Rep. Fire Ins. Co., 58 N. H. 245; Pres’t D. & H. Canal Co. v. Penn. Coal Co., 50 N. Y. 250.) Defendant did not comply with the arbitration condition of the policy. (Wyncoop v. Niagara Ins. Co., 91 N. Y. 478.)
   Eabl, J.

The plaintiff held a policy of insurance issued by the defendant upon certain personal property, and the property was destroyed by fire in July, 1882. The policy contained this clause: The amount of sound value and of damage to the property may be determined by mutual agreement between the company and the assured; or failing to agree, the same shall then, at the written request of either party, be ascertained by an appraisal of each article of personal property, or by an estimate in detail of a building, by competent and impartial appraisers, one to be selected by each party, and the two so chosen shall first select an umpire to act with them in case of their disagreement; and if the said appraisers fail to agree they shall refer the differences to such umpire; and the award of any two in writing, under oath, shall be binding and conclusive as to the amount of such loss or damage, but shall not decide as to the validity of the contract or any other question except the amount of such loss or damage.” Among other things in its answer, the defendant alleged that the plaintiff and defendant failed to agree upon the damage occasioned by the fire, and that on or about the 11th day of August, 1882, it served upon plaintiff a written request that the amount of damages sustained by him from the fire should be ascertained and determined by appraisers to be selected as required by the policy, and offered to select and appoint an appraiser for that purpose, on its behalf, and that he wholly refused to submit to such appraisal or appoint an appraiser for that purpose, and refused to comply with the terms and conditions of the policy in that respect. Upon the trial it appeared that the fire occurred on Sunday, the thirtieth of July; that on the next day the plaintiff notified the defendant of the fire and of the loss; that on the second day of August it requested an arbitration under the policy, and he assented; that thereupon he selected one De Audreau, and the defendant one Magnus as arbitrators, and an agreement in writing was executed by the parties submitting the appraisal of the damages to the arbitrators thus selected, and that the arbitrators failed to agree. The defendant gave evidence tending to show that it subsequently made plaintiff an offer to appoint a new arbitrator in the place of Magnus, and also that Magnus offered to unite with De Andreau in selecting an umpire, but that the plaintiff and De Andreau refused. The plaintiff, as a witness in his own behalf, gave evidence tending to show that, after the arbitrators failed to agree, he requested the defendant to appoint another arbitrator, and that he asked Magnus to agree with De Andreau in appointing an umpire, and they did not accede to his requests.

Under the arbitration clause, it was the duty of each party to act in good faith to accomplish the appraisement in the way provided in the policy, and if either party acted in bad faith so as to defeat the real object of the clause, it absolved the other party from compliance therewith; and if either party refused to go on with the arbitration, or to complete it, or to procure the appointment of an umpire so that there could be an agreement upon an appraisal, the other party was absolved. A claimant under such a policy cannot be tied up forever without Ms fault and against Ms will by an ineffectual arbitration. The evidence tended to show that the defendant failed and refused to go on with that arbitration. In the meantime, partly under the orders of the city authorities, the offensive debris and broken and injured articles about the plaintiff’s premises had to a great extent been removed, so that an appraisal had become to a large extent impractical. There was some evidence tending to show, and from which a jury might have inferred, that the defendant was not acting in good faith to procure a speedy appraisal, and was interposing this clause in the policy for the purpose of forcing a compromise from the plaintiff. Upon all the evidence, it was a question of fact for the jury to determine whether there was any breach of this clause in the policy on the part of the plaintiff, and the case should thus have been submitted to them.

After its refusal or neglect to go on with the first arbitration which had been agreed upon, on the tenth of August thereafter, the defendant served upon the plaintiff another written request to arbitrate, and offered to select a person to appraise the damages on its part. To this offer plaintiff refused to accede, and there was evidence, in the conduct of the defendant in reference to the arbitration first agreed upon and in the removal of the property damaged, tending to show that the refusal was justifiable. The defendant in its answer did not set up as a bar to the action the pending arbitration or any conduct of the plaintiff in reference thereto, but simply alleged that the plaintiff upon request refused to enter into an arbitration as provided in the policy. This allegation was untrue. The plaintiff had entered into an arbitration and was not bound to enter into a new one while that was pending, and if that one failed from the fault of the defendant, he had discharged his whole duty under the arbitration clause and was not bound to enter into a new arbitration agreement. The plaintiff having once consented to arbitrate, if the arbitration failed and came to an end, from the fault of the defendant, the arbitration clause could not stand in the way of this action.

The order should be affirmed, and judgment absolute entered against the defendant,. with costs.

All concur.

Order affirmed and judgment accordingly.


text:
    William Pease, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    Where a passenger on a railroad, by an illegal refusal to pay fare, renders it the duty of the conductor in enforcing the reasonable rules and regulations of the company to eject him from the cars, and the refusal and resistance of the passenger continues until after force has been required and applied to remove him, he cannot, by offering to pay fare, make the continuance of the process of expulsion unlawful; and, although he is ejected, after an offer to pay fare, at a place where the train ordinarily stops and receives passengers, this does not render the railroad company liable.
    A carrier of passengers is not required unconditionally to accept all persons who offer themselves for transportation and tender fare ; he may lawfully decline to receive or carry those who refuse to conform to his reasonable rules, after knowledge of the same, or may after such refusal lawfully eject those who have been received.
    Plaintiff boarded a train on defendant’s road ; when the conductor in collecting fares reached him he presented an invalid ticket, which the conductor refused to accept, and demanded fare. This plaintiff refused to pay. The conductor informed him that he would be obliged to put him off unless he paid. He replied that he would sue the company if he was put off. This occurred as the train reached a place where the track was crossed by another railroad "at grade, and where, in compliance with the statute, trains on defendant’s road stopped for a moment, and where passengers were in the habit of getting on and off. The conductor called for assistance, a brakeman and baggageman came and began the removal. Plaintiff resisted and continued the straggle without cessation until he was landed on the track. When he reached the car door and again while on the platform he stated he would pay the fare. The court charged that if the train had stopped at a station and before it started again plaintiff offered to pay his fare, any subsequent effort to remove him was unlawful and rendered defendant liable for damages. Held, error.

      O’Brien v. W. T.O.&H. B. B. B. Go. (80 N. T. 236), distinguished.

      Pease v. S„ L. & W. B. B. Go. (11 Daly, 350).
    (Argued January 21, 1886;
    decided February 9, 1886.)
    Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, entered upon an order made January 21, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 11 Daly, 350.)
    This action was brought to recover damages for an alleged ■unlawful and forcible eviction by defendant’s employes of plaintiff from a train on defendant’s road.
    The material facts are stated in the opinion.

      Hamilton Odell for appellant.
    Plaintiff being a non-resident, and defendant a foreign corporation, and the cause of action an alleged assault and battery-on plaintiff, committed in New Jersey, the Court of Common Pleas had no jurisdiction. (Harriott v. N. J. R. R. & T. Co., 2 Hilt. 232; 49 N. Y. 308; Code of Civ. Pro., § 1780; 10 Daly, 459; Dudley v. Mayhew, 3 N. Y. 12; Beach v. Nixon, 9 id. 35; Risley v. Phenix Bk., 83 id. 337; McCormick v. Penn. R. R. Co., 49 id. 308.) The relation of passenger and caVrier is founded on contract, and a refusal by the former to pay lawful fare releases the latter from all obligation and renders the passenger a trespasser and liable to ejection by necessary force. (Jeffersonville Co. v. Rogers, 28 Ind. 1; Hoffauer v. D. & N. W. Co., 52 Iowa, 342; O'Brien v. B. & W. Co., 15 Gray, 24; People v. Jillson, 3 Park. Cr. 234; Stone v. C. & N. W. Co., 47 Iowa, 82; Hibbard v. N. Y. & E. Co., 15 N. Y. 457; Louisville, etc., Co. v. Harris, 9 La. 180; State v. Campbell, 32 N. J. L. 309; Nelson v. L. I. Co., 7 Hun, 140; Hall v. M. & C. Co., 9 A. & E. R. R. Cas. 348; T. & P. Co. v. Casey, 52 Texas, 112; Swan v. M. & L. Co., 132 Mass. 116.)

      Thomas M. North for respondent.
    Plaintiff having tendered his fare before his ejection was accomplished, it should have been accepted, and defendant is liable for not accepting it. (O'Brien v. N. Y. C. & H. R. R. R. Co., 80 N. Y. 236; Guy v. N. Y. & O. W. R. Co., 30 Hun, 399; Nelson v. L. I. R. R. Co., 7 id. 140; Lynch v. Met. El. Ry. Co., 90 N. Y. 77.) A common carrier is liable to a passenger for an assault and battery by its servant, however malicious and unauthorized. (Stewart v. B'klyn, etc., R. R. Co., 90 N.Y. 588; Jackson v. Second Ave. R. R. Co., 47 id. 274.)
   Huger, Ch. J.

The court charged the jury as matter of law, that if the train bearing the plaintiff had stopped at a station, and before it started again he offered to pay his fare, that any subsequent act of the defendant committed in the effort to expel him was unlawful, and rendered it liable for damages occurring therefrom. To this charge there was an exception.

We think this direction was erroneous. The facts taken in their most favorable aspect for him, showed that the plaintiff boarded the defendant’s train at Hoboken, intending to ride to Montclair. When the conductor reached him in the process of collecting fare, the plaintiff exhibited a ticket purporting to be good for a passage on defendant’s cars from Montclair to Hoboken. This the conductor refused to accept, and requested the plaintiff to pay his fare. He refused and demanded a passage on the ticket. The conductor told him he should be obliged to put him off unless he paid his fare. The plaintiff then replied, I will sue the company if you put me off.” An issue was thus deliberately and intelligently made between the parties. The conductor called for assistance, and a brakeman and baggageman appeared and began the removal. The plaintiff resisted with force the effort to remove him, and continued the struggle without cessation from his seat until he was finally landed on the track outside the car.

At the time the plaintiff reached the car door, and while he was near it on the platform, he stated to those engaged in ejecting Mm that he did not want to be put off, and would pay his fare; but notwithstanding this offer the expulsion continued and plaintiff was ejected.

It is not disputed but that the ticket tendered, was insufficient to entitle the plaintiff to a ride from Hoboken to Montclair, nor but that the conductor was justified in. ejecting him from the cars for non-payment of fare; but it is claimed that the moment the plaintiff declared Ms willingness to pay fare, the right of the defendant to continue the expulsion eo instanier ceased, and the right of the plaintiff as a proposed contractor with the corporation commenced.

This claim is founded upon the assumption that an individual who is in the process of being lawfully and necessarily ejected by force, from the cars in pursuance of statutory authority, stands in the same relation to the carrier as an unobjectionable person tendering fare, and asking passage on its trains from a regular station.

It was held in O'Brien v. N. Y. C. & H. R. R. R. Co. (80 N. Y. 236), that if the stoppage of a train is rendered necessary to expel a passenger therefrom, for a fractious refusal to pay fare, that he does not by offering to pay it before expulsion, become entitled to continue the trip. ' This authority is quite conclusive upon the question, that a mere offer to pay fare under all circumstances does not establish new relations between the passenger and carrier, and entitle the passenger to continue his passage. Hibbard v. N. Y. & E. R. R. Co. (15 N. Y. 455, 460) is to the same effect. There the passenger had bought a ticket which entitled him to transportation from Hornellsville to Scio. After having once shown his ticket to the conductor, he refused to show it again, upon a second request, at a point between the commencement and terminus of his journey. After the train had been stopped for the purpose of expelling him therefrom for such refusal he exhibited his ticket, but the defendant put him off the train notwithstanding. It was held that this expulsion was justifiable because of the refusal of the passenger to comply with the reasonable requirements of the carrier.

Although it must be assumed upon the evidence in this case that the transaction in question occurred at a stopping place, where passengers had the right to get on and off the cars, yet it should be borne in mind that it was not a regular station, and the ordinary time of stoppage at that place was momentary and was required by law as a measure of precaution in cases wherever railroads crossed each other at grade. Such a transaction as that in question, would necessarily cause a detention of a train for a longer or shorter period, according to the circumstances, and the proof in this case shows the detention to have been three minutes.

When a passenger by an illegal refusal to pay fare has rendered it the duty of a conductor, in enforcing the reasonable rules and regulations of the company, to.eject him from the car’s, and the refusal and resistance of the passenger continues until after force has been required and applied, to enforce such rule, we think he cannot make the continuance of the process of expulsion unlawful, by an offer to pay fare during its progress.

Having invited an appeal to force, the passenger cannot at his option, reserve the privilege of shielding himself from its application, by invoking the protection of a contract, the implied conditions of- which he has violated. The trial of his right, in a manner which he has deliberately selected, cannot be arrested by him when its course is not proceeding to his satisfaction, so as to make its continuance by the other party unlawful.

The contention of the respondent proceeds upon the assumption that any person by tendering fare, has established a right to passage upon the trains of a carrier of passengers. This, we think, is not correct. Such a carrier is not required unconditionally to accept all persons who offer themselves for transportation, and tender fare. It has been held that they may lawfully decline to receive or carry those who refuse, after knowledge of the same, to conform to the reasonable rules of the company, or to pay their fare, or purchase tickets before entering the cars, and that it may lawfully eject from the train persons committing these offenses. (2 Borer on Bailroads, 958 et seq.)

In such a case as this, we think a passenger who resists the lawful requirement of the company, to the extent of provoking a breach of the peace, and the exhibition of violence in the presence of other passengers cannot, as matter of law, demand a passage upon the train where such an exhibition has been made.

A railroad company has the right, and it is its duty to enforce order in its cars, and to eject therefrom those who by indecent or obscene language, or by violent and boisterous behavior, cause danger, discomfort or annoyance to other passengers ; and in the exercise of this right, the officers of the company must determine as to the propriety of then* action, being responsible for the reasonable exercise of their discretion. (1 Redf. on Railways, 91, 92, 105; People v. Jillson, 3 Park. Cr. 234; People v. Caryl, id. 326; Roreron Railroads, 958, 959.)

It would be quite absurd to say, that one whose unlawful conduct had provoked a breach of the peace, should be able to throw upon his adversaries the blame of the affray, by simply withdrawing his challenge, and declaring his change of mind. He has provoked an unlawful affray and his rights are to be determined by the rules which apply to persons thus engaged. The act of expulsion is made legal by his unlawful refusal to pay fare, and any necessary force required to completely execute it, would be justifiable.

It is, under the circumstances of this case, immaterial that this affray occurred at a station, as that fact is important only in considering the rights of parties with reference to new relations, or as bearing on the right of the carrier to determine the time and mode of expulsion. The case of O’Brien holds that when an oral controversy as to the payment of fares arises at or before arrival at a regular station, and while at such station, and before force has been applied to effect the expulsion, the passenger offers unqualifiedly to pay his fare, and tenders the money therefor, that his subsequent expulsion under such circumstances would be unlawful, and we think decides nothing farther than this,

In this case it may also well be said that the measures rendered . necessary by the conduct of the plaintiff would probably involve the detention of the train and the consequences deprecated in the PHPbwrd Case and bring it within the letter of the rule there stated.

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

All concur, except Andrews and Danforth, JJ., dissenting.

Judgment reversed.