author: Macombeb, J.:

text:
    ROBERT N. MARVIN, Respondent, v. PHEBE BRANDY, Appellant, Impleaded with JOSEPH P. BRANDY and Others.

      Opening judgment of foreclosure — what is sufficient cause therefor, where an application is made by a defendant personally served out of the State under am, order of publication.

    Alter a judgment of mortgage foreclosure and sale had been entered, a defendant in the action, who was personally served out of the State with a copy of the summons and complaint under an order of publication, applied after the expiration of six years and eleven months, and within the seven years after the filing of the judgment-roll, specified in section 445 of the Code of Civil Procedure, to have the judgment opened and be allowed to defend the action.

      Held, that it was not incumbent upon the applicant to show any irregularity in the proceedings had against her, or any defect in the judgment from which she sought to be relieved.

      Tliat while an applicant is required to show sufficient cause for granting the application, yet where it appears that the applicant was sick when the foreclosure papers were served and did not realize what they were; that she had constantly claimed that she had never executed the mortgage, and, in her proposed answer, the applicant puts in issue the allegation of the complaint, as to the execution hy her of the mortgage which was foreclosed, and she is supported hy affidavits of regularity, a case is made which requires the granting of the application.
    Where the statute plainly prescribes a time within which a thing may be done, it is not laches on the part of the litigant to make a motion, even at the latest period prescribed, where no intervening facts appear rendering it unconscionable that the application should he granted.
    Appeal by the defendant Phebe Brandy from an order of the County Court of Chautauqua county, entered in the office of the clerk of that county on the 19th day of June, 1889, denying the motion of the said defendant Phebe Brandy for an order opening the judgment theretofore entered in the above-entitled action, and for leave to the said Phebe Brandy to come in and defend this action.
    The action was commenced to foreclose a mortgage purporting to have been made by Joseph P. Brandy and Phebe, his wife, to David Beatty, to secure the payment of the sum of $Y,500. The summons was served on Joseph P. Brandy, August 20,1883, within the State, and on Phebe Brandy, his wife, who did not appear in the action, in pursuance of an order of publication, without the State, on the 18th day of September, 1883. Judgment was subsequently entered, and on the 6th day of February, 1884, the mortgaged premises were sold to the plaintiff Robert N. Marvin. On the 3d day of June, 1889, the defendant Phebe Brandy, by her attorneys, made a motion before the county judge of Chautauqua county to have the judgment opened and for leave to answer. This motion was sent by the county judge to the special county judge, before whom the same was heard, on June 10, 1889, and the motion was denied l>y order of that date, with costs.

      E. JR. JBootey and V. E. PeeJcham, for the appellant.

      Oodk, Fisher & Wade, for the respondent.
   Macombeb, J.:

The motion of the appellant, Phebe Brandy, which was denied by the special county judge of Chautauqua county, was made under section 445 of the Code of Civil Procedure, relating to the appearances and defenses of parties defendant in an action, who are served, not personally, but by order of publication. This section of the Code permits a party thus served without the State, to defend the action on application and sufficient cause shown: (1.) At any time before final judgment. (2.) After final judgment, at any time within one year after personal service of written notice thereof; or (3.) If such notice has not been served, within seven years after the filing of the judgment-roll.

This action which was brought to foreclose a mortgage purporting to have been executed by the defendant, Joseph P. Brandy, and the appellant, his wife, to David Beatty, to secure a bond in the sum of $7,500, with interest, was begun in the month of August, 1883. The appellant was served personally in the city of Philadelphia with a copy of the summons and complaint under an order of publication. No defense being interposed by her, judgment was taken against all of the defendants on the 24th day of December, 1883, and the sale of the mortgaged premises was made on the 6th day of February, 1884. A report of such sale was subsequently made to the court, and the usual order of confirmation was granted.

No notice of the entry of the judgment was served upon the appellant. Her motion for leave to defend the action was made within the seven years mentioned in the statute. The learned special county judge, though writing no opinion in making his decision of the motion, has manifestly placed the denial of it upon the ground that the application was addressed solely to the discretion of the court, and that, in the exercise of such discretion, the motion, which was delayed for six years and eleven months, ought to be denied. The sole question is, whether this conclusion was correct or not.

It will be observed that the present Code has wrought a material change in the language of section 135 of the Code of Procedure. As the statute now reads, the application must be granted if sufficient cause be shown therefor. "We are left somewhat in the dark as to what might, or might not, be deemed sufficient cause under the language of the statute ; but it is plain that if a case is presented where sufficient cause is actually shown for the interposition of an answer by a defendant thus served out of the State, the court has no discretion in the premises but must grant the motion. On principle it would seem, where a limitation of time is giyen to defend, as by this section, namely, within one year after the service of the notice of the judgment, and, in the absence of such notice, within .seven years, that the right to defend was absolute. It clearly is not incumbent upon the applicant to show any irregularity in the proceedings had against him, or any defect in the judgment from which he ought to be relieved. The fact must not be lost sight of that this is a jurisdictional question, and not merely one of procedure and practice, where the imperative must ” may be treated not as mandatory, as was done in the case of Fleischmann v. Bennett (79 N. Y., 579), where the question arose only upon an application for leave to file a supplemental complaint under section 544 of the Code ■of Civil Procedure. We do not understand the Court of Appeals there to intimate any decision which would warrant this court, where the question of jurisdiction and the right to defend is involved, to ■depart from a plain reading of the statute relating to service of process. An inspection of the decision referred to will show that there is nothing in the opinion of the Court of Appeals which would justify the general and sweeping head-note, beyond the proposition that an application for such relief must be upon notice.

As it seems to us, the cases arising under the Code of Procedure, such as Roche v. Ward (7 How. Pr., 416); Jacquerson v. Ven Erben (2 Abb. Pr., 315), and prior thereto, as Hartwell v. White (9 Paige, 368), have no application to the present Code; and that it is no longer necessary, to enable a defendant served out of the State to defend within the time limited by this section of the present Code, to show any irregularity or any defect in the proceedings to enable him to be let in to defend as a favor. This proposition does not by any means, however, relieve a party thus applying from showing suffi■cient cause for the granting of the application. Notwithstanding the positive and. unmistakable language of the Code permitting a person thus to come in within the time already stated, if it should .appear, for instance, that the applicant had been by his own acts or deeds estopped to make the application, or had knowingly enjoyed some of the fruits of the judgment, or that the proposed answer was frivolous, and other like reasons, there would be no ground for granting the motion. In the case before us on this appeal it is established that the appellant, when served with the summons and complaint, was quite ill, and that she did not realize that the action had been brought for the foreclosure of this mortgage, though, of course, a close inspection of the papers would have shown her that such was the case. It is true she returned to the State of New York and lived in the city of Brooklyn for some time afterwards, but slie had received no information that any judgment had been entered against her for several years after the rendition of the same. Indeed, she brought an action for the admeasurement of her dower in these mortgaged premises, and had been subsequently advised that she was liable to-be defeated therein upon the ground of this judgment; whereupon .this motion was made. While the judgment was outstanding and apparently regular and valid, no action for her dower corrld be maintained.

The proposed answer is a positive denial that this defendant executed the mortgage which was foreclosed in this action. Her own affidavit in addition shows that, not only did she claim consistently during these years that she had not executed the mortgage, but. the further fact that she had been importuned to execute the same and had refused to do so, and that such importunity and such refusal had made such an impression upon her mind as there could be no doubt of the fact, according to her recollection. It is not necessary, however, to consider these facts, or those adduced in the¡ affidavits which were filed in behalf of the plaintiffs, designed to show that the signature is that of this appellant; for a question of’ this grave importance should not in any event be tried upon affidavits. The proposed answer, putting in issue, as it does, the fact, without the existence of which no judgment could be properly taken, against the appellant, is sustained by the facts heretofore stated, and it made a case, being supported by affidavits of regularity, which, in our judgment, required the County Court to grant the application ;. for there did not appear upon the hearing before that court any fact which could preclude the applicant, by any act of hers, from availing herself of the provisions of this statute. Under these facts no-question of laches arises. "Where the statute plainly, prescribes a. time within which a thing may be done, it is not laches on the part of the litigant to make a motion even at the latest period prescribed,. where no intervening facts appear rendering it unconscionable for the application to be granted.

But proper terms for granting the motion must be imposed. If our rendering of this statute is correct, it would be competent for the court to grant a motion of this character without imposing the costs when the same is made before final judgment; but after judgment, whether the motion be made within the one year after notice, or within seven years in the absence of notice, just terms must be imposed as a condition of opening the default. In this instance we think that the payment of the costs of the plaintiff, as contained in the judgment-roll, without interest, would be proper terms to be imposed as a condition of granting the motion.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted on the payment of the costs as above indicated.-

Dwight, P. J., concurred; Corlett, J., concurred in result.

Order of the County Court of Chautauqua county reversed and motion granted on payment of taxed costs as entered in judgment-roll, without interest.


source: Caselaw Access Project

author: Macomber, J.: Corlett, J.

license: Public Domain

text:
    CYRUS D. ANGELL, Appellant, v. WILLIAM VAN SCHAICK and Others, Respondents.

      Contract — what allegations as to its being in violation of a statute of the State where made, and as to the law of that State, are insufficient — what repugnancy between a statute and a contract will prevent a recovery on the latter.

    In an action to recover commissions, alleged to liave been earned by the plaintiff, asa broker, in procuring a purchaser for real estate owned by tlie defendant, a demurrer was interposed to the defense set up in the answer wbicli defense alleged that tlie plaintiff had never received any license, as a real estate broker, as was required by the statutes (reciting them) of the State, of Pennsylvania, where the property sold was situated and the brokerage contract set forth in the answer was made, which, as alleged therein, “ are the whole of the laws and statutes of the said State of Pennsylvania relating to real estate brokers, and their commissions and licenses as such, and the fees or sums of money to be paid therefor, as well as the terms and conditions of granting such commissions, and the penalties and prohibitions imposed for failure to procure such commissions, and the highest court of ultimate and appellate jurisdiction of said State of Pennsylvania, in a proper case brought before it for review, has decided, and still holds, that a real estate broker not having such commission, or not having paid, or caused to be paid, into the treasury of the proper county, the sum of money required by said laws and statutes to procure the same, cannot recover compensation or commissions for his services as such real estate agent or broker.”
    Held, that there was no averment in the answer that there was any law of the State of Pennsylvania which would prevent the plaintiff from recovering his commissions for services as a broker under the statutes above mentioned. (Corlett, J., dissenting.)
    That the statement that the highest court of that State had decided, “in a proper case” before it, that a person cannot recover commissions, as a real estate broker, who has not taken out a license, was not an assertion that, by the law of Pennsylvania, such a recovery could not be had. (Corlbtt, J., dissenting.)
    That the decision of the highest court of that State would be a means, and only one of many means, of ascertaining the law of that commonwealth; and in the absence of averments as to the particular circumstances attending the case would not, standing alone, be deemed to be the law governing all cases.
    That, in the absence of any averment that the omission of the plaintiff to take out a license was with intent to evade and violate the laws of Pennsylvania, the answer was insufficient as a defense.
    The mere repugnancy of a contract to a statute of another State, designed apparently only to. raise revenue therein, is not sufficient to prevent a recovery of compensation for services rendered under such contract made in a foreign jurisdiction where the action is brought in this State.
    A contract, valid in the State of New York, will not be declared invalid by the courts of this State, because of the fact of its being in violation of the laws of the State where the contract was made, unless it appears either that the act of entering into the contract was made a crime, or that the contract was prohibited altogether, or was declared to be null and void by the foreign statute.
    In interposing a demurrer the demurrant does not admit the construction put upon statutes by the pleading demurred to, or the correctness of inferences, but only the truth of such facts as are properly stated in the pleading demurred to.
    Appeal by the plaintiff from a judgment, entered in the office of the clerk of the county of Cattaraugus on the 2d day of October, 1889, overruling the plaintiff’s demurrer to the second defense set up in the answer, “ and adjudging that the facts set up or alleged in the second defense are sufficient in law to constitute a defense to the cause of action set up and alleged in the complaint.”
    The action was brought to recover commissions alleged to' be due to the plaintiff, as a real estate broker, upon a sale claimed to have been effected by him of certain property in McKean county, in the State of Pennsylvania. The answer was as follows.
    I. The defendants 'William Van Schaick, Holland T>. Van Schaick and Josiah P. Van Schaick, for an amended answer, answer the plaintiff’s complaint in tins action and deny the same and each and •every allegation therein contained.
    II. And for a second and further answer to said complaint, the .said defendants, William Yan Schaick, Holland D. Yan Schaick and .Tori'ah F. Yan Schaick, allege on information and belief that at the time that the plaintiff alleges in his said complaint herein that the defendants agreed with him that if he would negotiate a sale of the property mentioned in said complaint, and would procure a purchaser therefor willing to purchase of said defendants said property .at the price and upon the terms alleged in said complaint, they would pay him for such services a commission of $500 therefor, and at the time that the plaintiff alleges in said complaint that he accepted said employment, and did in pursuance thereof, and on or .about May 7th, 1886, procure a purchaser for said property willing to pay said price therefor, and did introduce said purchaser to the defendants at about said time, and that said purchaser and the ■defendants herein agreed in respect thereto, and at all the times mentioned in said complaint, the said plaintiff was engaged in the business of a real estate broker in the city of Bradford, county of McKean and State of Pennsylvania, without having paid or caused to be paid the license fee or sum of money, and without having received or procured the commission provided and required by the laws and statutes of the State of Pennsylvania hereinafter alleged .and set forth; and that at all of said times the plaintiff had never .received any commission or license required by said laws and statutes •of the said State of Pennsylvania, and had never paid or caused to be paid into the treasury of any county of or within the said State of Pennsylvania for such commission or license any sum of money whatever, nor the sum of money required by said laws and statutes of the said State of Pennsylvania for such commission; and that during the entire years 1885 and 1886 the plaintiff was a real estate broker and carried on the business and used and exercised the occupation of a real estate broker in said city of Bradford, aforesaid, and there had his only and principal office for the transaction of his said business of a real estate broker; that during the entire years 1885 and 1886, the plaintiff did not reside in any county or city in the said State of Pennsylvania, except in said city of Bradford, in said county of McKean; that during the entire years 1885 and 1886 the plaintiff resided in said city of Bradford in said county of McKean, and State of Pennsylvania, and did not at any time reside ■elsewhere in said State of Pennsylvania; that the plaintiff had never received any license or commission previous to the 1st day of January, 1887, from the county treasurer of the said county of McKean, nor from any other proper officer of said county of McKean,, nor from the county treasurer or other proper officer of any of the counties of or within the said, State of Pennsylvania, authorized to grant, issue or deliver commissions to real estate brokers doing business within said State of Pennsylvania as such real estate brokers, pursuant to said laws and statutes of the said State of Pennsylvania; that the plaintiff has never paid nor caused to be paid to said county treasurer or other proper officer of the said county of McKean, nor of any other county in said State of Pennsylvania the fee or sum of thirty dollars or any other fee or sum, for such commission or license to transact business as such real estate broker, or to use or exercise-the business or occupation thereof within said county of McKean or State of Pennsylvania, required by said laws and statutes of said last, named State; that the whole of the said alleged services of the plaintiff for the defendants herein, and all the other matters and transactions alleged in said complaint, so far as any thereof ever occurred, took place or were transacted, or performed, occurred, took place and were performed and transacted in said city of Bradford in said county of McKean and State of Pennsylvania, and none thereof were performed, transacted nor agreed to be done, performed or transacted without said county of McKean; and that the land and property alleged and mentioned in said, complaint was wholly situated in said county of McKean.
    That during the whole of the year 1886 the following acts of assembly of said State of Pennsylvania were in full force and effect, and were existing laws and statutes of said State of Pennsylvania, and the same are still in full force and effect, and such existing laws, and were duly passed by the legislature of the State of Pennsylvania, and approved by the governor thereof before said year 1886, to wit:

      “ Section 1. "When any individual or copartnership residing in the city or county of Philadelphia shall have paid one hundred dollars, or if residing iii the city of Pittsburgh or county of Allegany shall have paid fifty dollars, or if residing in any other county of this, commonwealth shall have paid thirty dollars into the treasury of the county in which he, she or they shall respectively reside for the use of the commonwealth, with a view to the use and exercise of the business or occupation of a stock-broker, the treasurer of the proper county shall thereupon grant to such individual or copartnership a commission in legal form, under the seal of said county, authorizing him or them to purchase and sell as agents or for the use and benefit of others in the city or county to be designated in said commission for such brokerage, commission or other compensation as may be agreed upon between the parties, any public loan or stock and the stock of corporations, institutions and companies or other securities in the nature thereof, that have been, or may be hereafter authorized by or under any law of the United States or any separate State or territory of the United States, and generally to do and perform'all other lawful acts or things incident to the business of a stock-broker, for the term of one year from the date of such commission.”
    And that sections 3 and 3 of said laws and statutes contain similar provisions in regard to exchange-brokers, and that section 4 of said laws and statutes contains similar provisions in regard to bill-brokers, and that section 5 of said laws and statutes, in so far as relates to-renewals of such commissions (or licenses) reads as follows to wit:
    “ For each and every succeeding year during which any individual or copartnerslip shall continue to use or exercise the business or occupation either of stock-broker, exchange-broker or bill-broker as aforesaid, he, she or they shall pay or cause to be paid in advance into the treasury of the proper county as aforesaid for the use of the commonwealth, the sum in the respective cases,above stipulated, and receive a new commission as aforesaid; ” and that section 6 of said laws and statutes reads as follows, to wit:
    “No individual or copartnership, other than those duly commissioned under the provisions of this act, shall use or exercise the business or occupation of a stock-broker or exchange broker or bill-broker, under a penalty of five hundred dollars for each and every offense, to be recovered as debts are by law recoverable, one-half for the use of the commonwealth, and the other half for the. use of the guardians of the poor, in the city or county where said ■offense shall have been committed; ” and that section 8 of said laws .and statutes reads as follows, to wit:
    “ All the provisions of the act entitled ' An act to authorize the licensing of stock-brokers, exchange-brokers and bill-brokers, ’ passed the 27th day of May, 1841, he and the same hereby are ■extended to real estate brokers and merchandise brokers.”
    That all of said sections above quoted and alleged (except the last one), were duly passed by the said legislature of said State of Pennsylvania May 27,1841, and are the sections, act of such legislature, and laws referred to in said “ section eight; ” and said section eight was passed by said legislature April 10,1849, and the foregoing alleged •and quoted sections of laws are the whole of the laws and statutes of said State of Pennsylvania relating to real estate brokers and their ■commissions and licenses as such, and the fees, or sums of money, to be paid therefor, as well as the terms and conditions of granting .such commissions, and the penalties and prohibitions imposed for failure to procure such commissions; and the highest court of ultimate and appellate jurisdiction of said State of Pennsylvania, in a proper case brought before it for review, has decided and still holds, that a real estate broker not having such commission or not having paid or caused to be paid into the treasury of the proper county, the sum of money required by said laws and statutes to procure the same, cannot recover compensation or commissions for his services as such real estate agent or broker.
    That by the laws and statutes of the State of Pennsylvania the plaintiff was absolutely prohibited from using or exercising the business or occupation of real estate broker within the State of Pennsylvania, under a penalty of $500 at and during all the times and periods of time mentioned in said complaint, and was also thereby prohibited from recovering in an action any compensation or commissions for his alleged services as a real estate broker, alleged in said complaint.
    That in the courts and law-making bodies of the State of Pennsylvania the words “ Act of Assembly,” mean the same as the words ££ Act of the Legislature,” and the word ££ Commonwealth” means the same as the word ££ State.”
    That the plaintiff before the 1st day of January, 1887, had never paid or caused to be paid the sum or fee provided and required by said “section 5, ” of said laws and statutes, and up to that time had never received a new commission as provided by said “section 5.”
    Wherefore the defendants, appearing herein, demand judgment, that the plaintiff’s said complaint may be dismissed, with costs.”

      William H. Henderson, for the appellant.

      E. D. Nortlvrup, for the respondents.
   Macomber, J.:

The plaintiff, who describes himself in the complaint as a real estate broker, having his office at Bradford, Pennsylvania, brings, this action to recover of the defendants, who are residents of this. State, the sum of $500, as the agreed price for his services in procuring for them a person who was willing and able to, and who, in. fact, actually did, enter into a contract for the purchase of lands of' the defendants in the year 1886, in McKean county, in the State-of Pennsylvania, for the sum of $30,000.

The second defense, which is demurred to on the ground that it. is insufficient in law to constitute a defense to the cause of action set. forth in the complaint, alleges the existence, at the time of making of' the contract, of certain statutes in the State of Pennsylvania, whereby it was made incumbent upon all real estate brokers to pay into the-treasury of the county the sum of thirty dollars as a license fee for-doing the business of real estate brokerage. In default of procuring-a license, a penalty of $500 was imposed upon any person who should, engage therein, to be recovered in an action at law, as debts are, one-half going to the people, and the other half to the guardians of the-poor.

The learned counsel for the respondent asserts that these statutes, made the failure to take out a license for this business an offense. If it is meant thereby to state that such violation was punishable as. a crime, the statement is erroneous. A penalty of $500, to be recovered in an action at law, as debts are, is prescribed for each offense, it is true, but the term “ each offense ” m that connection does not mean a crime, but only an omission or failure of duty year-by year.

It is also contended by the respondents’ counsel that, by the law of Pennsylvania, the plaintiff would be unable to recover in that .State liis commissions or any compensation for such services under •the statutes above mentioned. There is not, however, in the answer .any averment that there is a law of Pennsylvania which would lead to this result. It is stated in this defense that the highest court of that State has decided, “in a proper case” before it, that a person •cannot recover commissions as a real estate broker who has not taken out a license. This is not by any means an assertion that, by the law of Pennsylvania, such a recovery cannot be had. The decision of the highest court of that State would, indeed, be a means, but only • one of many means, of ascertaining the law of that commonwealth, and standing alone could not be deemed to be the law governing all cases which might arise, where a recovery of commissions is sought, in the absence, as in this case, of averments of the particular circum- . stances attending the case where such decision was given. The con- . struction put upon the statutes of another state by its courts are ordinarily controlling. (Jessup v. Carnegie, 80 N. Y., 441; Faulkner v. Hart, 82 id., 413; Leonard v. Columbia Steam Nav. Co., 84 id., 48.) But the defense here set up fails to allege that in all • cases where there was no license there could be no recovery. The leading case in the courts of Pennsylvania (which is not before us as ■ evidence, but only as an authority) is Holt v. Green (73 Penn. St., 198). This was followed by the case of Johnson v. Hulings (103 id., 498). The learned judge writing the opinion of the court in the last-named case, and who deems that court bound by the decision of Holt v. Green (supra), characterizes the omission of the broker to take out a license as immoral. This characterization would not be warranted if the case before the court had been one only of an unintentional or accidental omission to pay the license fee. The report of the decision does not satisfactorily show that the act of the party was willful; but the remark of the learned judge leads quite directly to the inference that the omission of the party was for the purpose of evading and defeating the law. In order to under- . stand the full meaning of this remark, and to allow it all the force which it is justly entitled to, it is necessary to see what the case was in which it was made; but the facts constituting that case are .not before us. This observation of the judge, in giving judgment, may have been perfectly correct in reference to the case then before .the court, and yet be clearly wrong when attempted to be applied to a case of a different character, where, obviously, there is no moral turpitude. If anything further than this be claimed for the decision of the Supreme Court of Pennsylvania upon this subject, we are precluded from adopting it on this appeal, and from administering the rule in accordance with the lex loei contractus, on account of the insufficiency of the pleading demurred to.

Tet the learned judge at Special Term, in his opinion, has fallen into the error of supposing that the allegation that there had been one decision, in a case brought by a real estate broker who had not taken out a license, made by the highest court of the State of Pennsylvania, would establish a common-law rule of that State, for he says: That it is the law of that State, and was at the time of the rendering of-said services, and was so declared by the highest judicial tribunal of that State, that a person could not recover for services rendered in that State as a real estate broker unless he had at the time such a license.”

I do not find in the answer any other averment of the existence of a common law, growing out of (so to speak") the interpretation of these statutes, other than the allegation that the highest court of ultimate and appellate jurisdiction of Pennsylvania, “'in a proper case ” brought before it for review, has decided, and still holds, that a real estate broker not having such commission, or not having paid the license fee, can recover no compensation for his services. Whether the facts before the Supreme Court of Pennsylvania were similar to those appearing in these pleadings is not set up by the answer. If it appeared that the real estate broker in the case cited failed to take out the license or pay the fee with the intent to évade the laws of Pennsylvania (which may be the meaning of the pleader’s expression, " a proper case ”), a sufficient case would be made out for the defeat of a claim in that forum as well as in our own. There is not in this case any averment in the answer that the omission of the plaintiff to take out a license was done with intent to evade and violate the laws of Pennsylvania. In the absence of such averment, this answer is insufficient as a defense. This brings me to the principal defect and omission contained in this answer, and that is the failure on the part of the pleader to show that the contract set forth in the complaint is a criminal offense, or that it is null and void, or is prohibited by the statute of that State. So far as is disclosed by this pleading, the purpose of the statutes mentioned is to secure certain revenues to the State, and the only penalty imposed for the failure to pay for licenses to conduct such business is liability to a civil suit and damages as for a debt fixed by the statute. In Thalimer v. Brinkerhoff (20 Johns., 397), the general rule is laid down that all contracts which have for their object anything repugnant to the general policy of the law or contrary to the provisions of the statute, are void. Ex turpi contractu actio non oritur, but mere repugnancy to a statute, designed apjj&rently alone to raise revenue in another State, is not suificient to prevent a recovery for such compensation in this State, under a contract made in a foreign jurisdiction.

We have not been cited to any decision, either by counsel or by the learned judge at Special Term, in his opinion, by which a contract, valid in this jurisdiction, should be declared by our own courts invalid by reason of the laws of another State where the contract was made, unless it appeared either that the entering into of the contract was a crime, or that the same was prohibited altogether, or was declared null and void by the foreign statute. Section 6 of the act passed by the legislature of Pennsylvania IVIay 21, 1811, set forth in the complaint, the jn’ovisions of which were subsequently extended to real estate brokers, is not a prohibition with a punishment to be inflicted by the criminal courts for its violation; on the contrary, it creates a debt to be recovered in an action at law against the person failing to pay the license fee. The failure so to take out a license is not shown to be either a felony or a misdemeanor, or in any- way punishable. So long as the broker pays thirty dollars per year for his license, or $500 per year without it, he can continue his vocation.

After setting forth the foreign statutes and averring that they were the whole of the laws and statutes of Pennsylvania relating to the subject, the pleader alleges that by such statutes the plaintiff was absolutely prohibited from exercising his trade without a license, and that he was prohibited by such statutes from recovering in this action. But these averments are mere inferences and deductions drawn from the statutes, and are not in any sense allegations of fact. In interposing the demurrer the plaintiff did not thereby admit the construction put upon the statutes by the pleading demurred to or the correctness of inferences, but only the truth of such facts as were properly stated in the answer. (Bogardus v. N. Y. Life Ins. Co., 101 N. Y., 337; Bonnell v. Griswold, 68 id., 294; Buffalo Catholic Institute v. Bitter, 87 id., 250.)

As a question of pleading, therefore, it appears that the answer is insufficient, in law, to prevent a recovery by the plaintiff. The defendant should be required to stand upon the first defense, namely, a general denial of the allegations of the complaint.

The judgment appealed from should be reversed and the demurrer sustained, with costs.

Dwight, P. Í., concurred.

Corlett, J.

(dissenting):

The complaint shows this action was brought in October, 1886, to recover $500 and interest as commissions for the sale of 135 acres of land in McXean county, Pennsylvania, upon which there were producing oil wells. The defendants’ first answer is a denial. The second admits the employment of the plaintiff by the defendants, the sale of land and the amount of commissions. It then alleges the existence of certain statutes in Pennsylvania which are set out in the answer, which enact, in substance, that a broker for the sale of property, including real estate, must pay a certain sum for a license-to carry on his business and take out a commission. •

Section 6 provides, in substance, that no individual or partnership,, other than those duly commissioned under the provisions of the act, shall carry on the business of broker- under a penalty of $500 for each and every offense, to be recovered, etc.

The answer alleges, in substance, that the plaintiff paid no license and had received no commission authorizing him to sell real estate as a broker. It also alleges that the statutes quoted are all the laws and statutes of the State of Pennsylvania on that subject. It then proceeds as follows: “And the highest court of ultimate and appellate jurisdiction of said State of Pennsylvania, in a proper case brought before it for review, has decided, and still holds, that a real estate broker not having such commission, or not having paid or caused to be paid into the treasury of the proper county, the sum of money required by said laws and statutes to procure the same, eannot recover compensation or commissions for Ms services as sucli real estate agent or broker.”

The learned counsel for the appellant criticises the words “ in a proper case,” and claims tbat the facts alleged do not show a proper ■case. The whole quotation conveys the impression and clearly implies tbat the facts were such as required the appellate court to construe the statutes quoted in the answer; for it cannot be assumed tbat tbat tribunal adjudged and determined tbat a real estate broker could not recover compensation for commissions, unless the facts before it were such as to require a determination of tbat question.

The answer demurred to tben proceeds: “ Tbat, by the laivs and statutes of the State of Pennsylvania, the plaintiff was absolutely prohibited from using or exercising the business or occupation of a real estate broker within the State of Pennsylvania under a penalty of $500 at and during all the times and periods of time mentioned in said complaint; and was also thereby prohibited from recovering in an action any compensation or commission for bis alleged services as a real estate broker, alleged in said complaint.”

The learned counsel for the appellant characterizes the last quotation as the opinion of the pleader, and claims tbat the facts are not properly stated. The answer bad already set out the statutes, the decision of the Supreme Court, and tben alleges tbat by the laws and statutes of Pennsylvania the plaintiff could not recover commissions on account of the matters alleged in the complaint.

In Marie v. Garrison (83 N. Y., 14), it was held tbat to sustain a demurrer to a pleading it' is not sufficient tbat facts are improperly or informally averred or tbat it lacks definiteness and precision, or tbat the material facts are argumentatively averred; it will be deemed to allege what can by reasonable and fair intendment be implied from the allegation. So in Lorillard v. Clyde et al. (86 N. Y., 384), it was held tbat on demurrer all reasonable intendments will be indulged in in support of the pleading demurred to. The remedy for indefiniteness or uncertainty in a pleading is by motion, not by demurrer.

Applying the rule in the above cases, which is nowhere questioned, to the averments in the answer demurred to, it is difficult to see bow the pleading can be other than sufficient. It is somewhat verbose, contains repetitions in some of its statements, is argumentafive, and lacks precision and exact definiteness in some of its statements ; but, in substance and effect, it distinctly alleges all the facts necessary to constitute a perfect defense.

In Blackwell v. Webster (29 Fed. Rep., 614) the contract was made in the State of Maine. One of the parties was living in New York where the trial was bad. The court held that the validity of the contract must be determined by the laws of Maine, and that the-effect of the Maine statute was to render the agreement void. The same doctrine was recognized in Coppell v. Hall (7 Wall., 549); Hyde v. Goodnow (3 N. Y., 269); Backman v. Jenks (55 Barb., 468).

In the case at bar the complaint and answer show that the contract was made in Pennsylvania, was executed there by a broker living and doing business in that State, and that under the laws of that State, the plaintiff could not recover the commissions. It is entirely clear that there was no defect in the answer that could be reached by demurrer.

The interlocutory judgment was right and should be affirmed.

Interlocutory judgment reversed and demurrer allowed, with costs.


author: Macomber, J.: Corlett, J".

text:
    LOUISA P. CHARD and GEORGE A. GANE, as Administrators, etc., with the Will Annexed of RUFUS C. PALMER, Deceased, Appellants, v. CORNELIA HAMILTON, as Administratrix, etc., with the Will Annexed of ELISHA W. ENSIGN, Deceased, Respondent, Impleaded, etc.

      An obligor who is, in fast, ¡a surety only — on his death his estate is discharged from liability.

    Where one of three obligors upon a bond, executed before the enactment of section 7S8 of the Code of Civil Procedure, has no beneficial interest therein or in the moneys secured thereby, or in any of the dealings of the parties thereto leading up to its execution, and is a surety merely, and is known to be such by the obligee, and has not been secured by his principals in any respect, his estate, upon his death before the death of the principals, becomes discharged from any liability under such bond in equity as well as at law. (Corlett, J., dissenting.)
    Appeal by plaintiffs, as administrators, etc., from so much and such parts only of the judgment entered, in the above-entitled action upon the report and direction of the referee therein, in the .office of the clerk of Chautauqua county on the 29th day of August, 1889, as awards judgment dismissing the complaint in the said action, in favor of the said defendant Cornelia Hamilton, as administratrix,, etc., of Elisha W. Ensign, deceased.

      Samuel J. Orooles and Frank G. Ferguson, for the appellants.

      Sherman S. Rogers, for the respondent.
   Macomber, J.:

The action was brought to foreclose a mortgage executed by George W. Holt and his wife Amelia, upon certain premises in the village of 'Westfield, and for the recovery of any deficiency which might arise upon the sale of such mortgaged premises. Judgment was sought, not only against the personal representatives of Holt and of Charles Ensign, but also against this respondent, Cornelia A. Hamilton, as the personal representative of Elisha W. Ensign.,

The bond, as collateral security to which such mortgage was. given, was executed by Charles Ensign, Elisha W. Ensign and Geoi-ge W. Holt to Kufus C. Palmer, the appellants’ intestate, on the 1st day of June, 1872, and was conditioned for the payment by the obligors of $15,000 in one year from its date, with interest. All of the parties to the bond are dead, Elisha W. Ensign having died before either of the others. The referee dismissed the complaint on the ground, as stated in his opinion, that the estate of Elisha W. Ensign was discharged at law by his decease, and, inasmuch as he had no interest in the consideration of the bond, that he was, in fact,, merely a surety, and that there was no moral obligation resting upon his representative to pay any deficiency which might arise upon the' sale of the mortgaged premises. The obligatory part of the bond was as follows: “ For which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, firmly by these presents.” * * * “The condition of this obligation is-such that, if the above-bounden Charles Ensign, Elisha W. Ensign and George W. Holt, their heirs, executors or administrators, shall well and truly pay, or cause to be paid unto the above-mentioned Kufus C. Palmer, his executors, administrators or assigns, the just and full sum of fifteen thousand dollars in one year from the date hereof, with the interest, payable semi-annually, without fraud or delay, then the above obligation to be void, otherwise to remain in full force and virtue.” Upon the face of this instrument the obligation of the promisors therein was joint, and not several. (Wood v. Fisk, 63 N. Y., 245.) The words binding the executors and administrators of the obligors are of no moment in the construction of the instrument, and no point is made by the appellants’ counsel that it was intended thereby to charge, at law, the estate of Elisha W. Ensign, in case he should die before the others.

If such a point were made, it would be untenable. (Waters v. Riley, 2 Harr. & G., 305; Bishop v. Church, 2 Ves., 100; Pickersgill v. Lahens, 15 Wall., 140; Richardson v. Horton, 6 Beav., 185.) See, also, as inferentially containing the same principle, Simpson v. Vaughan (2 Atk., 31); Thomas v. Frazer (3 Ves., 399); Burn v. Burn (Id., 573); Sumner v. Powell (2 Mer., 30). As the rule stood at the time of the execution of this instrument the liability, at law, on the part of the estate of Elisha "W. Ensign, ceased at his death, and the only obligation for the entire debt rested thereafter, at law, upon the surviving obligors. (Pomeroy’s Eq. Jur., §409;-2 Chitty’s Cont., 1411; 1 Parson’s Cont., 30, and the cases there cited and considered.)

As this case comes up upon the judgment-roll only, the appeal must be determined by the sufficiency of the findings, in any view which may be taken of them, to warrant the judgment pronounced. (Agricultural Ins. Co v. Barnard, 96 N. Y., 525.) There is an apparent discrepancy or contradiction between the seventeenth and eighteenth findings, on the one hand, and the twenty-first and twenty-second findings, on the other. By the seventeenth and eighteenth findings the referee holds that there is no evidence in the case that any agreement was entered into between Elisha ~W. Ensign and Rufus C. Palmer to the effect that the obligor should be bound as surety only for Charles Ensign and George W. Iiolt, or that Elisha W. Ensign intended to be bound in any other capacity than as principal on such bond. But, by the twenty-first finding, it is asserted that the bond in suit was executed by Elisha W. Ensign solely for the accommodation and benefit of Charles Ensign and George W. Holt, and, by the twenty-second finding, that the consideration of the bond was a balance of money due from Charles Ensign and George W. IToit to tire obligee, the plaintiffs’ intestate, upon the sale by him to Charles Ensign and George W. Holt, as copartners of his interest in the propeller “ Colorado,” and for moneys borrowed by them, as such copartners, from the obligee, all of which facts the referee'further finds were known to the said Palmer at the time of the execution of the bond.

Under these findings Rufus C. Palmer must be deemed to be conclusively charged with actual knowledge that the principals upon the bond were Charles Ensign and George W. Holt, and that Elisha W. Ensign was a surety only. This fact enables the personal representative of Elisha W. Ensign to interpose a complete defense to the claim made by the plaintiffs in this action, and she is not relegated to a mere right of action over against the estates of the two principals. (Richardson v. Draper, 87 N. Y., 337.) There appears, therefore, no equity existing in behalf of the appellants by which the estate of the surety, who had died before his principals, should be charged in this action, inasmuch as the instrument was executed before the passage of section 758 of the Code of Civil Procedure. Elisha W. Ensign not having any beneficial interest in the bond, or in any of the dealings of the parties leading up to its execution, and being but-a surety merely to the knowledge of the obligee, and not having been secured by his principals in any respect, was, by his death before the principals, discharged of any liability in equity as well as in law. (Getty v. Binsse, 49 N. Y., 385; Wood v. Fisk, 63 id., 245; Risley v. Brown, 67 id., 160.)

The plaintiffs having failed to show that the estate of Elisha W. Ensign should be charged for the default of his principals the judgment appealed from should be affirmed.

Dwight, P. J., concurred

Corlett, J".

(dissenting):

At the time therein stated a bond was executed, of which the-following is a copy: "

“ Know all mén by these presents, that we, Charles Ensign and Elisha W. Ensign, of the city of Buffalo, and George W. Holt, of the village of Westfield, in the State of New York, are held and firmly bound unto Rufus C. Palmer, of Le Roy, Genesee county, and State of New York, in the sum of thirty thousand dollars, lawful money of the United States of America, to be paid to the said Rufus C. Palmer, his executors, administrators or assigns, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators firmly by these presents. Sealed with our seals. Dated the first day of June, one thousand eight hundred and seventy-two.

The condition of this obligation is such that, if the above-bounden Charles Ensign, Elisha W. Ensign and George W. Holt, their heirs, executors or administrators, shall well and truly pay, or cause to be paid, unto the above-named Rufus C. Palmer, his executors, administrators or assigns, the just and full sum of fifteen thousand dollars in one year from the date hereof, with interest payable semi-annually, without fraud or delay, then the above obligation to be void, otherwise to remain in full force and virtue.

CHARLES ENSIGN, [l. s.]

E. W. ENSIGN. [l. s.]

GEORGE W. HOLT. [l. s.]

Signed, sealed and delivered ] in the presence of )

James W. Booth.”

Elisha "W". Ensign died on the 1st day of October, 1871; afterwards Charles Ensign and George ~W. Holt died. Charles Ensign and Holt had been partners, and they were owing Rufus C. Palmer, the plaintiff’s intestate, at the time of the execution of the bond the sum of $15,000, wdiich accrued in the course of the partnership business, to secure the payment of which the bond was executed. Elisha W. Ensign signed the bond, as the referee finds, solely for the accommodation and benefit of Charles Ensign and George "W". Holt; he also finds that Palmer knew who created the debt, to secure the payment of which the bond was executed. This action was commenced in the lifetime of Palmer by a committee of his person and estate, he having been adjudged a lunatic. It was continued after his death by the plaintiffs, his administrators.

Charles Ensign and George ~W. Holt were utterly insolvent, and this action was brought to enforce the balance which should be found due after applying the proceeds of a mortgage executed at the time of the bond by Holt and wife to secure the payment of the debt. Issue was joined and the case referred. The referee made his report on the 29tb day of July, 1889. He found, among other things, that the defendant was not liable as administratrix upon the bond signed by Elisha W. Ensign, deceased.

No case was prepared, and the hearing here is upon the referee’s findings and conclusions. The sole contention upon this appeal is, whether the estate of Elisha W. Ensign is liable upon the bond.

The seventeenth finding of the referee is: “ That there is no evidence in the case that any agreement was entered into between Elisha ~W. Ensign and Rufus C. Palmer to the effect that Elisha "W". Ensign was to be bound by said bond as a surety for Charles Ensign and George ~W. Holt, and that the last two named were alone to be considered by the said Palmer as the principal debtors to him upon said obligation.”

The next finding was: “ That there is no evidence in the case that Elisha ~W. Ensign contracted or intended to be bound on said bond to Rufus C..Palmer in any other capacity than as a principal thereon.”

The nineteenth finding is: “ That the obligation that Elisha W. Ensign entered into with Rufus O. Palmer by said bond was that of one of three principal joint-debtors thereon to said Palmer for the amount of $15,000 and interest secured thereby.”

The eighth conclusion of law is : “ That the said Elisha "W. Ensign bound himself by said bond to said Rufus C. Palmer as a principal obligor therein.”

It will be observed that the referee finds, in substance, that Elisha intended to bind himself to Palmer, and did so as principal, and that as between him and the other obligors he signed for their benefit and accommodation. There is no inconsistency between those findings. (Berg v. Radcliff, 6 Johns. Ch., 302; The East India Company v. Boddam, 9 Ves., 464.) To Palmer he bound himself as principal, but he did so for the accommodation of the other parties to the bond. The other finding is that Palmer knew that the debt which the bond was given to secure was due him from Charles Ensign and Holt.

The referee in his opinion states his position as follows : “ It was necessary, in order to charge defendant Hamilton in equity for any deficiency that might arise upon the foreclosure and sale under the mortgage, to show that a moral obligation was imposed upon the obligor, Elisha W. Ensign, by the contract to pay the debt, that ■s%och surety owed the debt outside cmd irrespective of the joint obligation.” He cites some authorities in support of his position, among which is Bradley v. Burwell (3 Denio, 61), where it was held that where one died his estate was discharged at law but liable in equity; and Richter v. Poppenhausen (42 N. Y., 373), where it was held that the executor of a deceased partner could not be joined in an action at law to collect a partnership debt; Getty v. Binsse (49 N. Y., 385), where the instrument was a joint promissory note, ■one signed as surety for the other, the court held that the contract was the measure of the surety’s liability, and that under the facts of that case his estate was discharged, in law and equity; and Richardson v. Draper (87 N. Y., 337), where it was held: The •death of a joint obligor only discharges his obligation in a case where it appears that he was a mere surety who received no benefit whatever from the joint obligation.” There the estate was held liable upon the facts.

In all the cases cited by the learned counsel and the referee, •decided in this State, the obligations were joint. None of them, like the bond in question, bound the “ heirs, exeototors and administrators.'” The doctrine of the cases in this State (before section •158 of the Code of Civil Procedure, which has no application), was that the liability of the surety was limited to his contract, and that upon his death his estate was not liable at law or in equity. That :in all the cases of joint contracts the death of one extinguished liability at law, but not in equity, and that as between sureties equity would compel contribution. The effect of words in a bond binding the heirs, executors and administrators of the surety does not appear -to have been considered or determined in this State. In 81 New York, above cited, the judge delivering the opinion says: “ The reasoning upon which the exemption of the deceased surety’s estate from liability is founded, though sanctioned by numerous •cases, is not very convincing, and has not always been viewed by judges and jurists with favor.” It is the rule, where findings of fact by a referee conflict, the defeated party is entitled to those most favorable to him, and may rely upon them in aid of exceptions ■to the referee’s conclusion of law.” (Schwinger v. Raymond, 83 N. Y., 192; Bonnell v Griswold, 89 id., 122.)

As above stated, the findings of the referee do not conflict; but if it should be held otherwise, the ajrpellants may rely upon those favorable to their contention. The substance of the referee’s findings is, that Elisha, as between him and Palmer, signed the bond and intended to do so as one of the principal debtors. The time of payment by the terms of the bond was extended one year. Upon whose request or suggestion this extension was granted by Palmer-does not appear. It may be that Elisha consented to bind himself as principal in favor of Palmer, in whole or in part,, on account of such extension, which is a valuable consideration (Cary v. White, 52 N. Y., 138), or there may have been dealings between him and the other obligors, or one of them, which caused him to assume the obligation of principal debtor. In the absence of a case, the circumstances attending the transaction cannot be ascertained outside of the findings. The form in which the bond was drawn is some evidence indicating that Elisha intended that his estate should be-bound. It is true that the instrument is joint between him and liis. co-obligors, and that upon the death of either an action at law could not be maintained against the survivors and the representatives of the deceased; nor in the event of the death of all the obligors, could joint proceedings be maintained in equity to enforce payment, but if they were all joint-debtors, j>roceedings could be resorted to in equity to enforce payment. If any force attaches to the words, of the bond, it is obvious that Elisha did not, in fact, limit or intend to limit his liability to a joint proceeding against the obligors, but he intended to bind his estate in case of his death before j>ayment of the debt.

The learned counsel for the respondent cites Pickersgill v. Lahens (15 Wall., 140) as an authority for the position that the insertion of those words could not extend liability. The case is silent as to-whether it was considered by the court or whether attention was called to that fact. The learned counsel is informed by those engaged in the case that, in fact, the bond was in that form. The question does not seem to have been considered in any of the other-cases cited by the learned counsel. Attention has not been called to any case showing the effect of such words in a bond or contract. The exact question presented in this case does not appear to- have been determined in this State.

The referee, as already shown, proceeded upon the assumption that, as Elisha was surety for liis co-obligors, he was not liable to pay the debt outside of the bond, and that his estate could not be charged in equity. It is agreed that the estate of a deceased joint, debtor is liable in equity, and the question under the findings here, is whether Elisha could bind himself as principal to Palmer, when, in fact, he was not liable for the debt outside of the bond.

Where a joint-bond is signed upon a good consideration to secure the payment of a debt, and it contains all the provisions needful to bind the obligor jointly with the others, and expressly charges his representatives, it is difficult to see upon what principle his estate should not be liable in equity.

In Berg v. Radcliff (6 Johns. Ch., 302), it was held that the estate of the surety was bound in equity, the fact that he was a surety for the other obligors could not be urged in equity as a reason why he should be relieved from the payment of the debt when the-understanding was, as the findings show, that, as between him and the person accepting the bond, the debt should be treated as due-from him. The legislature have interfered for the protection of creditors and the courts are not inclined to extend the rule exempting the surety’s estate from liability. (Richardson v. Draper, 87 N. Y., 338-344; Long v. Stafford, 103 id., 274; Deobold v. Oppermann et al., 111 id., 531.)

To uphold the judgment in this case, it is necessary to decide that it is impossible for a surety signing a joint bond to bind himself to creditors so that equity will enforce payment out of his estate. It is not believed that the adjudications go to that extent, or that, equity will sanction such results.

The judgment should be reversed and a new trial granted before another referee, with costs to abide the final award of costs.

Judgment affirmed, with costs.


author: Dwight, P. L :

text:
    HERBERT R. WARD, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Baib'oad passenger — right to “stop over” — removal from oars, of a passenger presenting a ticket from the station where offered, because of his refusal to pay fa/re for the distance ab'eady traveled.

    Wliere a passenger lias been directed to leave a railroad train because of a refusal, on the part of its conductor, to accept a ticket which had already been used, on a previous train, for a portion of the route covered by it, and thereupon purchases a ticket from the station at which he is so directed to leave the train to the place of his destination, the railroad company cannot insist, as a condition of his transportation, that he should pay the fare legally chargeable for that portion of the road over which he has been theretofore carried, and for the refusal to pay the fare for which (when his ticket was refused) he has been directed to leave the train.

      ,Semble, that the passenger who leaves a train at a station before reaching the place for which he has purchased a ticket, without having the ticket indorsed for a “stop over,” does not forfeit his right to the further use of his ticket for his transportation to the station mentioned thereon.
    Appeal by the defendant from an order entered, in the office of -the clerk of the county of Orleans on December 12,1889, denying the •defendant’s motion for a new trial on the minutes, after a trial at the Orleans Circuit before the court and a jury, by which latter a verdict was rendered in favor of the plaintiff for the sum of $125.

      A. II. Harris, for the appellant.

      W. E. Hobby, for the respondent.
   Dwight, P. L :

The action was for damages for being put off from defendant’s -train. The plaintiff bought his ticket at Buffalo entitling him to ■transportation from that place to Holley on the Niagara Palls branch ■of the defendant’s road. It was the ordinary ticket without limitation as to time or train. He rode to Albion, where he got off; and having transacted his business there, resumed his journey by the next train which stopped at that station. The conductor of the second train inspected his ticket and told him it was punched to Holley, and he must pay the fare from Albion to Holley or be put off the -.train. The plaintiff protested that he had paid his fare to Holley and bad not ridden beyond Albion on the ticket, and claimed the right to be carried the rest of the way. The conductor told him he. should put him off at Murray, which was the next station. Ne testified that he was not put off nor told to get off at Murray, but that, while the train was standing at that station he decided, in order to-avoid further dispute with the conductor, to buy another ticket, from Murray to ITolley, and so he did. The station agent at Murray sold him such a ticket on his application, although the conductor of' the train was present and declared that he would not accept the new ticket unless the plaintiff also paid the fare from Albion to Murray. The plaintiff resumed his seat in the train; the conductor came to-him as soon as the train started and the plaintiff tendered him the new ticket. The conductor refused to receive it unless he also paid the fare from Albion to Murray, and upon the plaintiff’s refusal to do so, stopped the train and put him off.

We are by no means prepared to concede that the plaintiff forfeited the right to the further use of his ticket by leaving the train at Albion without having the ticket indorsed for a “stop-over.”" Counsel for the defendant contends for the affirmative of this proposition upon the authority of two cases which he cites. They are Terry v. Flushing, etc., Railroad Company (13 Hun, 359) and Kelsey v. Michigan Central Railroad Company (28 id., 460). In the former of these cases the ticket held by the passenger was an “ excursion ticket,” so designated on its face, and was held by its terms to limit, the holder to a continuous passage. The latter of the two cases is-in point in support of the proposition, but is itself not supported by any one of the cases in this State referred to by the learned judge who wrote the opinion as establishing the rule stated by him. Thus Auerbach v. New York Central, etc., Railroad Company (89 N. Y., 281) was the case of a ticket with coupons from St. Louis to New York, which was, by its terms, “good for one continuous passage to-point named in coupon attached.” The only question in that case was, whether the express limitation to a continuous passage applied to the whole journey or to the passage over each of the connecting roads whose coupons were attached to the ticket. It was held “ that the contract evidenced by the ticket was not by any one company, or jointly by all the companies named, but was a separate contract by each company for a continuous passage over its road.” Kessler v. The Same Railroad Company (61 N. Y., 538) involved only a question of the responsibility, as between several companies, for the luggage of the passenger. Barker v. Coflin (31 Barb., 556) was the case of a ticket, by its terms, “ good, for a continuous trip only.” In Hamilton v. N. Y. C., etc., Railroad Company (51 N. Y., 100) judgment for the plaintiff was reversed by the Commission of Appeals for error of the trial judge in refusing to instruct the jury to disregard evidence of slanderous.and abusive epithets applied to the plaintiff by the conductor. Lott, Ch. C., was of opinion that the ticket, though not so limited by its terms, was good for one continuous passage only; but all the other members of the court expressly declined to concur on the last-named ground.

The case of Elmore v. Sands (54 N. Y., 512), referred to by Dyemah, J., in Terry v. Flushing, etc., Railroad (supra), as authority for the dictum that the right to stop off exists only by means of “stop-over tickets,” was the case of a ticket “'good this date only,” and the only question considered was whether it was good on any date other than that which it bore; and Beebe v. Ayres (28 Barb., 275), also cited by Judge DyemaN, was the case of a ticket bearing on its face the words “ good this trip only,” and was a case of a mistrial besides.

The ticket which the plaintiff bought and paid for at Buffalo was •evidence of the defendant’s contract to convey him to Holley by any passenger train which stopped at the latter station. The contract was not limited, by its terms, to the day on which the ticket was purchased, nor to the train by which the journey was commenced. “ Rule 24 ” of the company’s instructions to conductors, which was put in evidence by the defendant, plainly recognizes the right of the passenger to stop over at any station of the road, and directs the conductor to make an indorsement on the ticket only in case the stop over is to be made between “punching stations.” There is nothing in the case to charge the plaintiff with knowledge of this instruction at all, nor with knowledge that Albion, one of the chief towns on the route, was not a punching station. It seems that the punching stations designated in the instructions were Buffalo, Tonawanda, Loekport and Medina, and that the ticket was required to be punched once after leaving each of these stations. If the instruction was obeyed in this case, then it is plain that the ptmcli marks in the plaintiff’s ticket were evidence that it bad been used beyond Medina, and nothing more. They were no evidence that it had been used beyond Albion, because they were made before Albion was reached. It may be that, as between the conductor and his employer, it was the duty of the former to give to the marks an arbitrary significance, which in this case was contrary to the fact; but it would seem that to do so, would be at the employer’s risk, and that if it violates the rights of the passenger, the employer must bear the consequences.

But the plaintiff’s right to recover does not depend upon the application of the principles so far discussed. lie resumed his Journey by the next train at Albion, relying in good faith, as the jury has found, upon his ticket as evidence that his fare was paid to his destination. The conductor informed him that his ticket was not good, and that unless he paid his fare again from Albion to Holley he should be put off the train at Murray, the next station. The plaintiff contented himself with a remonstrance, and on arriving at Murray, left the train and bought a new ticket from that station to his home. We can entertain no doubt that he was entitled to ride on that ticket from Murray to Holley by any train that stopped at both those stations, including the one which then stood on the track at Murray. He had committed no breach of the peace, nor created any disturbance, nor been a trespasser on that train; and he owed the defendant nothing. He had once paid his fare to Holley, and he entered the train at Albion, believing that the ticket which he then had was evidence of that fact. The conductor refused to receive it as such, and threatened to remove the plaintiff from the train, but carried him to Murray because that was a stopping place. There the plaintiff voluntarily waived what he believed to be his rights under the old ticket and bought a new one, which was evidence of a new contract. He had done nothing to forfeit his right to make that contract, and the conductor had no authority to forbid him to make it, nor to refuse to recognize it.

The Massachusetts case of Swan v. Manchester and Lawrence Railroad Company (132 Mass., 116), upon which the defendant relies, is not in point. In that case the plaintiff was in the wrong from the first. He had entered the train without a ticket and refused to pay the fare rightfully demanded of him. He was a trespasser on the train and was properly expelled from it; and lie owed the defendant for his fare from the point where he first came on board. That cannot be said of the plaintiff in this case. No one will contend that an action could be maintained against the plaintiff for his fare from Albion to Murray. Such a claim, if made, would be determined upon common-law evidence, and not upon the effect, contrary to the fact, which the conductor’s instructions'required him to give to the punch marks in the plaintiff’s ticket.

The cases of Nelson v. Long Island Railroad Company (7 Hun, 141) and O’Brien v. N. Y. C., etc., Railroad Company (80 N. Y., 236) were cases where the plaintiff entered the cars without a ticket and refused to pay the fare; and both turned, one in favor of the plaintiff, and one in favor of the defendant, upon questions not involved in this case.

We think the defendant’s exceptions point to no, error which vitiates the verdict, and the defendant’s motion for a new trial was properly denied.

The order should be affirmed and judgment directed for the plaintiff on the verdict.

Macombeb and Coblett, JJ., concurred.

Order appealed from affirmed, with costs.


author: Dwight, P. J.:

text:
    WILSON AGAR and ALANSON BURR, Respondents, v. MARY J. TIBBETS, as Executrix of the Last Will and Testament of JASPER KEENEY, Deceased, Appellant.

      Award of costs on the discontinuance of an action —final judgment not essential to — when costs allowed — judgment of Justices Court, docket thereof in county clerk’s office creates no presumption of jurisdiction.

    Under sections 3228 and 3229 of the Code of Civil Procedure the words, “upon the rendering of final judgment,” do not limit the right of either party to costs, to the case, alone, in which the action is prosecuted to final judgment, and the defendant in a common-law action will have the costs, which have already accrued, awarded to him by the court as a condition of the discontinuance of the action by the plaintiff, except in a case where such an award of costs would work manifest injustice to the plaintiff.

      An unexpected decision of tlie Court of Appeals, which renders useless the further prosecution of an action, is not a ground for exempting the plaintiff, seeking a discontinuance thereof, from the payment of the costs which have already accrued in the action.

      Sunney v. Boach (4 Abb. Pr., 16; distinguished.
    Although, by tlie filing of a transcript of the judgment of a Justice’s Court it becomes a judgment of the County Court for the purpose of its execution, yet it does not thereby obtain the benefit of the presumption of jurisdiction which attaches to judgments rendered in the County Court.
    Appeal by the defendant from an oraer granted at a Special Term beld in Erie county, and entered in the Wyoming county clerk’s office on the 15th day of October, 1889.
    The order appealed from provided “ that the above-entitled proceeding be and hereby is discontinued upon the payment by said Burr and Agar to the defendant, of the costs and disbursements of the appeal to the General Term of this court in this proceeding heretofore taken from the orders and judgment of the Special Term, and the fees of the referee appointed herein September 2, 1889, and without other costs.”

      G. W. Ea/rdÁng, for the appellant.

      E. E. Charles, for the respondents.
   Dwight, P. J.:

The proceeding was by reference, under the statute, of a disputed claim against the estate of a deceased person. The claim was based upon an alleged judgment of a Justice’s Court against the defendant’s testator. On the trial before the referee the plaintiffs gave-no evidence of the judgment or of the jurisdiction of the Justice’s; Court, except by the transcript of the judgment filed in the clerk’s; office of the county. The referee reported in favor of the plaintiffs, and bis report was confirmed at Special Term, and judgment was entered thereon. On appeal to this court the judgment and order were reversed on the ground that there was no presumption of the jurisdiction of the Justice’s Court; that although by the filing of the transcript the judgment became a judgment of the County Court for the purposes of its execution, yet that it did not thereby obtain the benefit of the presumption of jurisdiction which attaches to judgments Tendered in the County Court; and that the fact of jurisdiction must be affirmatively proved to give effect to the judgment as the basis of an action. (46 Hun, 52.) A new trial was accordingly granted, with costs of the appeal to abide the final award of costs.

After some delay a new referee was appointed, and after the cause was noticed for trial before him, the plaintiffs moved at Special Term for an order discontinuing the proceeding without costs, and the order was made, from which this appeal is taken, discontinuing the proceeding on payment by the plaintiffs of the costs and disbursements of the appeal to the General Term and the fees of the new referee, “ and without other costs.”

The Revised Statutes provide for costs in this proceeding “ as in notions against executors.” (2 R. S., 89, § 37.) This provision is qualified in respect to the award of costs to the plaintiff, by sections 1835 and 1836 of the Code of Civil Procedure, but those sections have no reference to the question of costs in favor of the defendant. The proceeding is not within the provisions of section 3240 of the Code and the award of costs is not in the discretion of the court. The right to costs of the defendant in such proceedings is regulated hy section 3229. The correctness of all these propositions is recognized in the case of Hopkins v. Lott (111 N. Y., 577). We are justified, therefore, in treating the questionsdn this case as if they .arose in “ an action in which the complaint demands judgment for a sum of money only.” In such case, by the terms of section 3229 (referring to section 3228), the defendant is entitled to costs, of course, upon the rendering of final judgment, unless the plaintiff is entitled to costs as prescribed in the section referred to.

The words upon the rendering of final judgment,” in both of the sections 3228 and 3229, were added in the latest revision of the Code, and are an instance of the Chief Reviser’s careful attention to detail. They cannot .probably have been intended to limit the .right to costs of either party to those cases alone in which the action is prosecuted to final judgment. They do, no doubt, limit the right of the party to enter judgment for costs without direction of the court; and we assume that the provision in question does not change the rule of practice which has so long and uniformly prevailed, that the defendant in a common-law action will have the costs, which hare already accrued, awarded to him by the court, as a condition of the discontinuance of the action by the plaintiff except in a ease where such an award of costs would work manifest injustice to the plaintiff.

Such a case has always been regarded as an exception to the rule; as, for example, where the defendant has obtained a bankrupt’s discharge after the commencement of the action (Hart v. Storey, 1 Johns., 143); or had fraudulently concealed the fact of his infancy from the plaintiff (Van Buren v. Fort, 4 Wend., 209); or where in an action for a penalty the law imposing the penalty was repealed after action brought (Cole v. Rose, 65 How., 520); or where one named as a defendant by mistake, and not served with process, has intruded himself into a litigation the result of which could in no manner affect his interest. ( Waterbury Company v. Krause, 9 Abb. Pr., 175, note.)

The case of De Barante v. Deyermand (41 N. Y., 355; S. C. correctly reported in 40 How. Pr., 180), relied upon hy the respondents here, was clearly a case coming within the exception to the rule. In that case the defendant held a release which was a complete defense to the action, but which he and his counsel had purposely omitted to plead. When the cause was ready for trial they produced it to the counsel for the plaintiff and declared that they proposed to rely upon it. Upon these facts, which appear in the report of the case last cited (40 How. Pr., 184), the plaintiff was allowed to discontinue his action, without costs. Judge Mason, in his opinion reported as above, points out that the result would have been the same if the action had proceeded and the defendant had attempted to avail himself of the release as he proposed. This he could have done only by amendment of his answer, and that the court would not have permitted except upon condition that the plaintiff have leave 'to discontinue, without costs, if he elected to do so. The case of Winans v. Winans (6 N. Y. St. Rep., 813) is authority for the proposition that the court may, in a proper case, refuse leave to discontinue even on payment of costs, and that it may, also, in a proper case, impose terms in addition to the payment of costs. Other cases cited by counsel for the plaintiffs, which have not already been noticed, were suits in equity in which costs were unquestionably in the discretion of the court.

The case before us was in the nature of an action at law and against the estate of a deceased person. It was undoubtedly the duty of the defendant to interpose the defenses upon which she has virtually succeeded, and we are unable to see that the case is within, the exception to the rule entitling her to costs upon a discontinuance. The plaintiffs first prosecuted their claim without being able to make proof of a valid judgment upon which to base it, and, not being able to supply the proof required by the decision of the-General Term, we think the further prosecution of the claim was. not altogether reasonable. The prosecution was, however, continued— with the intention, it is stated, of finally going to the Court of Appeals on the question decided adversely to them by the General Term — until the decision in the Court of Appeals of the case of Diefenbach v. Roch (21 N. Y. St. Rep., 570). That decision fully sustained the holding of the General Term in this case, to the effect,, that filing the transcript of a justice’s judgment in the clerk’s office-does not make it a judgment rendered in the County Oourt, and, on that ground, held further, that under the Code of Civil Procedure- (§ 382) the six-years statute of limitations apjffied to actions on such judgments. Thus doubly defeated in their proceeding, the plaintiffs, decided not to prosecute it any further, and applied for an order of discontinuance. We do not think the decision of the Oourt of Appeals, unexpected though it may have been to the plaintiffs, was-ground for exempting them from the payment of the costs upon a discontinuance of their proceeding against the defendant. That, decision merely anticipated the judgment which must have been rendered in their own case had it reached the court of last resort in advance of Diefenbach v. Roch; and upon the rendition of that, judgment, which would have been final, the defendant would unquestionably have been entitled to costs of the entire proceeding. The effect of the earlier decision in Diefenbach v. Roch was to-save to the plaintiffs a very large addition to the costs which they had incurred at the date of their application for a discontinuance.

The case of Sunney v. Roach (4 Abb. Pr., 16), which is cited by counsel for the respondents, is authority for the proposition that a. decision by the Court of Appeals, decisive against a pending action, may be ground for allowing a discontinuance of such action without-costs, was a case of very exceptional circumstances, and the order was made expressly upon tlie ground that being an action of equitable cognizance., it was not within section 304 (Code of Procedure), and, therefore, costs were in the discretion of the court.

¥e think the order appealed from must be reversed and the motion denied, or, at the option of the plaintiffs, order modified by substituting for the terms imposed thereby, the condition of payment of the defendants’ costs of the proceeding as in an action.

Maoombeb, J., concurred; Corlett, J.,not sitting.

Order appealed from reversed, with ten dollars costs and disbursements and the motion denied, or, at the option of the plaintiffs, the order modified hy substituting for the terms imposed thereby the condition of the payment of the defendants’ costs of the proceeding as in an action.


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    ABEL R. HIGGINS, Respondent, v. ABIGAIL McCONNELL, Appellant, Impleaded, etc.

      Interest of a purchaser in a contract of sale of land — is not subject to levy under an attachment or an execution— Oode of Giril Procedure, secs. 644, 645, 1253.
    The interest of a purchaser in a contract for the purchase of real property is not subject to sale under an execution, issued on a judgment recovered against such purchaser, in an action in whieh an attachment has been issued and a levy has been made thereunder upon the debtor’s interest in said contract.
    Section 644 of the Code of Civil Procedure permits the levying- of an attachment only upon property “ not exempt from levy and sale by virtue of an execution; ” and section 1253 provides that “ the interest of a person holding a contract for the purchase of real property is not bound by the docketing of a judgment, and cannot be levied upon or sold by virtue of an execution issued upon a judgment.”
    Section 645 of the Code of Civil Procedure, authorizing the levying of a warrant of attachment upon any interest in real property capable of being aliened by the defendant, does not remove the restrictions imposed by sections 644 and 1253, nor did it change the rule previously existing to the effect that the equitable interest in question was not subject to a levy either by attachment or by execution.
    Appeal by the defendant Abigail McConnell from an interlocutory judgment, entered in the office of the clerk of Steuhen county on the 16th day of October, 1889, overruling a demurrer interposed to the complaint.

      Pe M. Page, for the appellant.

      J. F. ParTchwrst, for the respondent.
   Dwight, P. J.:

The action was brought to determine conflicting claims of title to the interest of the pmchaser in a contract for the purchase and sale of lands, and for specific performance of the contract. The sufficiency of the complaint depends upon the question whether such interest is subject to sale on execution after judgment against such purchaser in an action in which an attachment had been issued and proceedings taken thereon as in case of the levy of an attachment.

We regard the statute as conclusive against the theory of the complaint. Section 644 of the Code of Civil Procedure permits the levy of an attachment only upon property not exempt from levy and sale by virtue of an execution; ” and section 1253 provides-that the interest of a person holding a contract for the purchase of real property is not bound by the docketing of a judgment, and cannot be levied upon or sold by virtue of an execution issued upon a judgment.”

Counsel for the plaintiff, conceding that no lien is acquired upon the interest in question by the docketing of the judgment merely, argues that, a lien having been previously acquired by the way of an attachment, that lien may be enforced by sale on execution after judgment; and for the right to levy an attachment on such interest, he relies upon section 64:5 of the same statute. That section provides that “ the real property which may be levied upon by virtue-of a warrant of attachment, includes any interest in real property, either vested or not vested, which is capable of being aliened by the defendant.” This was a new provision introduced by the Code of Civil -Procedure, and was evidently intended, as indicated by the Reviser’s note to the section, to extend the provisions of section 644 to all cases of alienable legal title or interest in lands, though not vested. It did not remove the restrictions imposed by sections-644 and 1253, nor change the rule which existed under the Revised Statutes and the Code of Procedure, to the effect that the equitable-interest in question was not subject to levy either by attachment or by execution, and could be reached by a creditor only by proceedings in the nature of a creditor’s bill after judgment and the return of an execution unsatisfied. (Sage v. Cartwright, 9 N. Y., 49; 1 R. S., 744, § 4.)

For the reason stated we consider the plaintiff’s complaint radically defective and tlae demurrer well taken

The interlocutory judgment should be reversed, the demurrer allowed and judgment ordered for the defendant thereon, dismissing the complaint.

Macomber and Oorlett, JJ., concurred.

Interlocutory judgment reversed and judgment ordered for the defendant on the demurrer dismissing the complaint, with costs.


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    MARTHA S. MEAD, Respondent, v. JOHN LANGFORD, Impleaded with CORBIN WILLARD and Others, Appellants.

      County Court — power to reform a written instrument, as incidental to its enforcement.

    A Oounty Court has jurisdiction to reform the condition of a bond secured by a. mortgage upon real estate, as incidental to its right to decide an action brought to foreclose such mortgage under the power of sale contained therein.
    Appeal by the defendants, upon questions of law and upon the facts, from a final judgment entered, in the above-entitled action, on the 25th day of July, 1888, in the office of the clerk of the county of Chautauqua.
    The action was brought for the foreclosure of a mortgage and the reformation of the condition of the bond or obligation, to which it was collateral, so that the latter should state that the principal sum secured thereby should draw interest from the date of said bond until the whole principal sum was fully paid and satisfied.

      A. Moot, for the appellants.

      A. C. Wade, for the respondent.
   Dwight, P. J.:

The principal question presented by this appeal is whether a County Court, of the proper county, has jurisdiction to reform the condition of a bond, secured by a mortgage of real estate, as incidental to an action to foreclose such mortgage under the power of sale which it contains.

The defendant pleaded a tender, shortly before the commencement of the action, of the amount which he admits to have been then due on the bond, according to its terms, and his counsel argues, that by reason of such tender the plaintiff could have no cause of action for the foreclosure of the mortgage until after the reformation of the bond, and, therefore, that the reformation of the bond was not incidental to the foreclosure of the mortgage, but was itself the chief and primary object of the plaintiff’s action. It is not necessary to consider whether this argument is sound, because there is no •finding that any tender was made, nor any request for such a finding, and there is no evidence upon which the fact could have been found. The only evidence relating to a tender is that of the witness Maltby, who testified that he was the assignee for the benefit of creditors of the defendant Langford. He was asked : “ As such assignee, did you tender, either by yourself or other, and were you present at the time of the tender made to Mr. Wade of $190?” to which he answered, “Yes, sir.” Who was the Mr. Wade here mentioned, and for whom or on what account a tender was made to him, is not explained. There is nothing to connect Mr. Wade with the plaintiff, nor the tender with the plaintiff’s cause of action. We have the case, then, of a mortgage securing a bond upon which a balance is conceded to be due and unpaid. The plaintiff had, therefore, a cause of action for the foreclosure of her mortgage; the question is whether she may have, in the same action in the County Court, a reformation of the condition of the bond, which is necessary in order to ascertain what„ is the amount due according to the contract actually made between the parties.

We can have no doubt upon this question. By express provision of the statute (Code of Civil Pro., § 310) the jurisdiction of each County Court extends to an action for the foreclosure of a mortgage upon real property situated within the county; and section 318 provides, that in such action the County Court “ may render any judgment, or grant either party any relief, which the Supreme Court might render or grant in a like case.”

This language is very comprehensive, and it is, we believe, conceded that it embraces every kind of relief which may properly be said to be incidental to the foreclosure, even though such relief might be made the subject of an independent action. Such was the view of the court in the two cases of Avery v. Willis (24 Hun, 548) and Thomas v. Harmon (46 id., 75). Both of those cases were held to be not within the rule, because the reformation there asked for, was not incidental to the action of foreclosure. In the former ■case reformation of the mortgage itself was asked for, to locate the land conveyed, without which the mortgage created no lien on any piece of land and no foreclosure could be. had, and the proceeding to obtain the reformation was held to be primary in purpose and importance. In the latter case the reformation asked for, was also of the mortgage itself and would have the effect to extend its lien to land not at all embraced in the conveyance as executed. Both ■cases are clearly distinguished from this; the reformation here ■decreed does not affect the lien of the mortgage, but only the amount ■of interest which the plaintiff was entitled to recover. A cause of .action, for the foreclosure of the defendant’s equity of redemption in the whole of the land embraced in the judgment, existed without ■the reformation of the bond; the decree in the latter respect only ■determined the period for which interest was to be computed.

"We think this relief was strictly incidental, secondary and ancillary to the proceeding to foreclose the mortgage, and that it was clearly within the jurisdiction of the County Court, as defined by section ■348 of the Code of Civil Procedure (supra).

The evidence in support of the allegation of a clerical error in ■drafting the condition relating to interest, though, perhaps, open to discussion, was, we think, sufficient to uphold the finding of the ■court in that respect.

The judgment of the County Court must be affirmed.

Macomber and Corlett, JJ., concurred.

Judgment appealed from affirmed, with costs.