author: By the Court.—Barbour, C. J.

text:
    HENRY R. MORGAN, Plaintiff, v. FRANCIS SKIDDY, LEONARD W. JEROME, WILLIAM R. TRAVERS, WILLIAM McVICKER, SIDNEY ASHMORE, and WILLIS E. GAYLORD, Defendants.
    I. Fbahdulent and False Repeesentations contained in a Pamphlet.
    1. Action to recover damages for. Bwt'then of proof.

    1. It lies on plaintiff to prove—
    1. That defendants caused the pamphlet to be issued and published.
    2. That it contained false or deceptive statements which were calculated to mislead or deceive the plaintiff.
    3. That plaintiff was in fact deceived and misled by such statements, and relied thereon.
    2. Proof as to falsity of statement. What is and what is not sufficient ' to carry a case to a jury.

    1. What is not.

      a. A statement in a pamphlet that a company then held a working capital of $50,000, composed of $35,000 cash and $25,000 of stock, is nof sJwwn to be untrue by evidence that at the time of the inception of the company it had no property except certain lands which it had purchased and for which it had issued every dollar of its stock.
    1. Because it may have realized the amount of such money and stock by selling, leasing, or mortgaging portions of its land, or by granting mining rights.

      a. It does not devolve on the defendants to prove that the company did so realise, but on the plaintiff to prove that it did not.

    2. What is.

      a. A statement that a portion of the land owned by the company consists of 1,400 feet of the celebrated “ Bates Lode,” is sufficiently shown to be untrue and calculated to deceive, to carry the case to the jury by proof that the 1,400 feet in question were not on the Bates Lode proper, but upon what is known as the extension of the Bates Lode.
    8. Proof as to plaintiff’s being deceived and mislead.

    1. What facts and evidence so show that plaintiff was not deceived and misled as to justify a 'dismissal of the complaint on that ground. (See opinion.)

      Before Barbour, Ch. J., Monell and Van Vorst, JJ.

      Decided, May 31, 1873.
    Exceptions ordered to be heard at General Term.
    The facts sufficiently appear in the opinion.
    Beebe, Donohue & Cooke, attorneys, and Erastus Cooke, of counsel for plaintiff.

      Platt, Girard & Buckley, attorneys, and Thomas C. T. Buckley, of counsel for defendant Travers.

      Smith & Woodward, attorneys, and Thomas C. T. Buckley, of counsel for defendant Skiddy.

      Bowdoin, Laroque & Barlow, attorneys, and W. W. McFarland, of counsel for defendants Jerome, McVicker, and Ashmore.

      Henry Woodruff, attorney, and of counsel for defendant Gaylord.
   By the Court.—Barbour, C. J.

The claim of the plaintiff in this action is founded upon the theory set forth in his complaint; first, that the defendants, with the intent and for the purpose of defrauding the plaintiff and others, caused the certificate of incorporation of the Central Mining Company of Colorado to be filed in the office of the Secretary of State, and in the office of the Clerk of Hew York ; and, secondly, that the defendants, for the purpose of inducing the plaintiff to subscribe for the stock of that company and pay them therefor, falsely and fraudulently issued and published a pamphlet containing certain false and deceptive statements and letters relating to the property and condition of the company, and that the plaintiff was induced thereby to, and did, subscribe for and purchase five hundred shares of the stock of the company, and to pay therefor the sum of $5,000, although such stock proved to be, and was in fact, utterly worthless.

It is sufficient to say, in regard to the first mentioned allegation, that no evidence was given or offered upon the trial which tended to prove that the statements embraced in the certificate, or any of them, were untrue, or that the same or any portion thereof was calculated to or did deceive the plaintiff.

The second charge required the plaintiff to prove : first, that the defendants, or some or one of them, caused the pamphlet to be issued and published ; secondly, that the same contained false or deceptive statements which were calculated to mislead or deceive the plaintiff; and thirdly, that the plaintiff was, in fact, deceived and misled by the said statements, and was thereby induced to, and did, subscribe for and purchase the stock for a price greater than its real value.

The plaintiff wholly failed to prove any act on the part of the defendants Travers, Skiddy, or Jerome tending to show that they had anything to do with the preparation or publication of the pamphlet, and for that reason alone the complaint might well have been dismissed as to them. The evidence, however, is sufficient to show that the pamphlet was got up by the defendants McVicker, Ashmore, and Gaylord.

It is difficult to see how the statement contained in the pamphlet, to the effect that the company then had a working capital of $25,000 in cash and an equal amount in stock, could have been true, unless the trustees had sold or leased or mortgaged a portion of its lands, or granted mining rights, and thereby realized the amount of such money and stock; for when the certificate was made, it may be assumed from the evidence, the company had no property whatever except the lands which it had purchased from Gaylord, and for which it had issued to him every dollar of its stock. But it was incumbent upon the plaintiff to prove that such statement was false and fraudulent, and that he failed to do. It was not the duty "of the defendants to establish the truth of the statement until there was some evidence in the case tending to prove the contrary. The presumption is in favor of innocence, and the burden of proving a fraud is therefore cast upon him who alleges it. It follows that the falsity of that statement in the pamphlet was not established upon the trial.

The statement in the pamphlet .that a portion of the mining lands of the company consisted of 1,400 feet on the celebrated “Bates Lode” might, however, if submitted to the jury upon the evidence, have properly been considered by them technically untrue in fact, and calculated to deceive parties desiring to purchase the stock of the company. For the testimony shows that the 1,400 feet in question were not upon the Bates Lode proper, but upon what is known as the extension of the Bates Lode, being, as was stated by one of the witnesses, a probable continuation of that lode or vein. It is important to inquire here, therefore, whether the plaintiff was in fact 'deceived by that statement in the pamphlet, and was induced thereby to make the purchase of the stocks.

The circumstances under which the purchase was made were testified to by the plaintiff himself, and by him alone. He stated that he had an account and a deposite with Fearing & Balton; that on the 23d of January, 1868, Dalton wrote him a personal note calling his attention to the stock and recommending it, and for that reason he went to their office to purchase ; that one of the prospectuses or phamphlets was there handed to him and he looked at it. “I told Mr. Dalton,” the witness stated, “ I know nothing at all about it,—says he, " It is all right,' and upon that I gave him a check for $5,000.” When. I went there it was Dalton who said It is all right; ’ Mr. Fearing assured me the same thing.” All that transpired was that Dalton and Fearing said,'when I went in there, that it was all right, and I gane my checlc I cannot tell how long I was at the office of Fearing & Dalton on the morning in question. I suppose I proceeded to purchase the stock almost immediately ; aboutfine or twenty minutes was the operation. Mr. Dalton said to me' It is all right,’ and I gane my checlc. I was handed that prospectus to read, and my attention was drawn to this map that hung on the wall. I read the prospectus. I ran my eye oner it, and afterwards took it home with me and read it oner afterwards. I loolced through it casually before I paid. "Mr. Dalton and Mr. Fearing both drew my attention to the map previous to the certificate being made out. I looked at it two or three times before and after. I cannot tell whether I loolced at the map before I completed the purchase of the stoclc, it is so long ago. I read the prospectus before I bought the stock. I did not read every word through. I looked more particularly to the property and the names that were in the company. I thoaght that was sufficient guaranty for its being worth something. I did not think the men whose names I saw could be connected with fraud.” '

This testimony of the plaintiff is not sufficient to show that he was influenced to any extent by the map in determining that he would buy the stock, for he does not remember that he looked at it before completing his purchase. Nor was his evidence touching the transaction, taken as a whole and considered with the surrounding circumstances, sufficient to authorize a finding by the jury that he was induced to make the purchase by the contents of the pamphlet, or, more particularly, by the statement therein contained that a portion of the company’s property consisted of 1,400 feet upon the Bates Lode.

' Considering these statements of the plaintiff in this connection it seems almost impossible to arrive at any other conclusion than that the purchase was made by him upon the representation of Fearing & Dalton that it was “ all right; ” or, if it may be assumed from the testimony that he even cursorily examined the pamphlet so far as to see the names of the trustees before he determined to buy the stock, he may have been induced to some extent by that fact to arrive at such determination. But he does not pretend that in the five or twenty minutes during which he was there he read all of the book, and it is difficult to see how he could have done so, as it contains fifty folios. Not does he say that in his cursory examination of the pamphlet while in the office of Fearing & Dalton he saw the statement touching the Bates Lode, nor even that he had ever heard of, or then knew, anything whatever in regard to that lode or its value. It cannot properly be inferred from the testimony of the plaintiff, therefore, that he was induced by any statement of the pamphlet to buy the stock.

It is sufficient to say, however, that the plaintiff was bound to prove upon the trial tjiat he was induced by the pamphlet, or by some statement contained therein, to make the purchase; for that was the gravamen of his action against these defendants. He was upon the stand himself as a witness, and could easily have testified to that fact if it existed, and stated the manner in which it was done, and he wholly failed to do so. The legal presumption therefore was that the.fact did not exist; and it follows that the complaint was properly dismissed, and the defendants should have judgment accordingly.

Monelr and Tan Tobst, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Barbour, Ch. J. Monell, J. (concurring in part, dissenting in part).

license: Public Domain

text:
    JAMES C. AYER and FREDERIC AYER, Plaintiffs and Respondents, v. WILLIAM A. KOBBE et al., Defendants and Appellants.
    I. LANDLORD AND TENANT.
    I. Contract, Construction of.
    1. Principle that the circumstances under which the contract was made are to be considered in its construction, applied.

    1. When a léase provides that the lessor shall, if the lessees so desire, put in an efficient steam hoisting apparatus in and for said premises, the fact that there was then a hoistway in the premises is to he considered in determining in what portion of the premises the steam hoisting apparatus is to be placed; and so considering that fact, the proper construction of the contract is that it was the intent of the parties that the hoisting apparatus should be placed in the then existing hoistway, and the lessor had a perfect right to place it there, although by so doing the lessees’ only entrance to the building would be seriously obstructed.

      a. Sub-lessees. The lessor’s right so to place the apparatus is not at all affected by a subletting of any part of the premises. -

      2. When an agreement provides for the doing by a lessor of certain work in a certain place on the demised premises within a reasonable time, the fact that a great deal of time was consumed in negotiating for and obtaining the consent of a person who, claims exclusive control over the place and a right to prevent the work, is not to be taken into consideration in determining whether ■ the work was done in a reasonable time, when such party had in fact no such contract or right, and both contracting parties at the time of making the contract supposed, and acted on the assumption, that the lessor had the absolute right to do the work in the manner and place specified.
    II. Rights of Lessors and Lessees under a Peculiar Agreement.
    1. When the lease contained a clause that if the lessees should so desire, the lessors would put in an efficient steam hoisting apparatus, in and for the demised premises, and in case the same should be put in the lessees would pay for the use thereof 12 per cent, per annum on the cost thereof at the usual quarter days for the payment of rent. Afterwards, the lessees having sublet to the defendants the whole of the premises above the first floor, and given to them the benefit and advantage of the stipulation in the lease in regard to the hoisting apparatus, they agreeing to pay the rent therefor to plaintiff, defendants notified plaintiffs they desired the hoisting apparatus, and plaintiffs proceeded to erect it in the hoistway on the premises at the time of the demise; thereupon plaintiffs and defendants on the 19th o£ March, 1868, entered into an agreement whereby reciting that it would be injurious to the business of defendants to have the work of erecting the apparatus continued until a new stairway and entrance should be provided, and the steam hoistway could be at once substituted for the then hand hoistway, the defendants, Kobbe, Oorlies & Co., agreed “that if said steam hoistway shall be completed and a new entrance in a reasonable time, they will consider the work of completing the steam hoistway as completed from and after Monday, the 33d day of March instant, so far as relates to the covenant in their agreement for a lease to pay for the use of the same at the rate of twelve per cent, per annum.
    Before Barbour, Ch. J., Monell and Van Vorst, JJ.

      Decided May 31, 1873.
    The said Kobbe, Corlies & Co., however, hereby require and insist that such new entrance and stairway as aforesaid shall be completed and made ready for the use of themselves and their customers before the work upon such steam hoistway in and above said gangway and present entrance shall be commenced.”
    Amidown, Lane & Co., who had become sub-lessees of the first floor, basement, and sub-cellar, refused to permit a new passage-way to be built on their part of the premises, and the work was delayed in consequence until October 17,1868, when they gave their consent. The work was finally completed about November 1, 1868.
    Held—
    1. The work was not completed within a reasonable time within the meaning of the agreement.
    3. That plaintiffs were not entitled to recover rent for the hoisting apparatus between 35th March, 1868, and the final completion.
    3. That defendants were not entitled to recover damages for the non-completion of the hoistway within a reasonable time.
    Appeal from judgment.
    This action was "brought to recover a "balance claimed to "be due from the defendants to the plaintiff for rent of a portion of a "building, and also for the rent of certain hoisting machinery therein.- "Upon the trial it appeared that in November, 1867, the plaintiffs let to Asa D. Dickinson the whole of the store and premises known as bios. 87 and 89 Leonard Street, at the yearly rent of $26,000. The lease, or agreement to let which in effect operated as a lease, was executed by both parties, and contained, inter alia, the following provision: “The said Ayer & Co. agree that in case the lessees shall so desire they will put in an efficient steam hoisting apparatus in and for the said premises, and in case the same shall be put in the said lessees shall pay for the use thereof twelve per cent, per annum on the cost of the same at the usual quarterly days for the payment of rent, and keep the same in repair, the usual wear and tear excepted.” After that, and in December, 1867, Dickinson underlet to the defendants all of the said premises which were above the first floor, at the yearly rent of $13,000. By that agreement or lease Dickinson gave to the defendants the benefit and advantage of the stipulation above mentioned, in relation to the hoisting apparatus, and the defendants assumed and undertook to pay the rent therefor to Ayer & Co., the plaintiffs. About the first of February, 1868, the defendants notified the plaintiffs that they desired the hoisting apparatus to be put in, and the latter thereupon procured an engine and machinery for such apparatus, and on the 13th of March 1868, had so far put it up that it could have been completed within two or three days thereafter; but on the day last mentioned they were restrained from proceeding therewith by an order of injunction, which had been obtained in an action brought against them by the persons who are the defendants in this action, to restrain them from completing the putting up of the apparatus in the only hall or passage-way through which the occupants of the lofts above the first floor could enter their premises. After that order was served, and probably because of it, an agreement in writing was made on the 19th of March between the parties to this action, which was also signed by the firm who had contracted to.erect the apparatus, as follows:

      “ It is hereby agreed between Messrs. Kobbe, Corlies & Co., of ¡New York, and Thomas F. Burgess & Co. and James B. Ayer & Co., of Lowell, Massachusetts, as follows:
    ‘ ‘It being inconvenient and injurious to the business of the said Kobbe, Corlies & Co., that the work of erecting the hoistway in the building numbers 87 and 89 Leonard Street, so far as relates to that part of the same in the present entrance, gangway, and above the first floor of said building, should be continued till a new stairway and entrance is provided, and the steam hoistway can be at once' substituted for the present hand hoist-way. The said Kobbe, Corlies & Co. agree that if said steam hoistway shall be completed, and a new entrance, within a reasonable time, they will consider the worh of completing the steam hoistway as completed from and after Monday, the 23 d day of- March instant, so far as relates to the covenant in their agreement for a lease to pay for the use of the same at the rate of twelve per cent, per annum.

    “And if the said Burgess & Co. on suspending the work of erecting said hoistway in said gangway, and above the same at this time, shall be compelled to return from Lowell to New York and incur further expense in completing said work than would now be incurred, they, the said Kobbe, Corlies & Co., will pay such increased expense.
    “ The said Kobbe, Corlies & Co., however, hereby require and insist that such new entrance and stairway as aforesaid, shall be completed and made ready for the use of themselves and their customers, before the work upon such steam hoistway in and above said gangway and present éntrance shall be commenced.
    “Dated, New York, March 19th, 1868.
    “ Kobbe, Corbies & Co.
    “ J. C. Ayer & Co.,
    “By Lttotek Birdseye.
    “ Thomas F. Burgess & Co.”

      At the time that agreement was made, the firm of A midown, Lane & Co. had "become the lessees, under Dickinson, of the first floor, "basement, and sub-cellar of the "building, and they afterwards refused to permit the plaintiffs to "build a new passage-way over their portion of the premises unless they were paid $2,500 dollars therefor. About the 17th of October, however, they agreed with the plaintiffs to give their consent to the construction of the new passage-way in consideration of $1,000, and thereupon the plaintiffs built the same, and completed the erection of the hoisting apparatus about the 1st of November, 1868, being over seven months after the making of the agreement of March 19th, above set forth. The plaintiff claimed to recover the balance of rents upon the building as assignees of Dickinson, and the rent for the hoisting apparatus by virtue of the agreements. The defendants denied the alleged indebtedness, and counter-claimed for the damages alleged to have been sustained by them, by reason of the plaintiffs’ failure, to complete the hoisting apparatus within a' reasonable time. The referee directed a judgment for the entire amount of the plaintiff’s claim, and the case comes here on appeal from that judgment.

      D. & T. McMahon, attorneys, and D. McMahon of counsel for appellants.
    Birdseye, Cloyd & Bayliss, attorneys, and Lucien Birdseye, of counsel for respondents
   By the Court.—Barbour, Ch. J.

As there was but one hoistway in the building at the time the lease to Dickinson was executed, and that one extended through every floor from the top to the sub-cellar, it may well be assumed, in the total absence of evidence tending to show the contrary, that both parties to that instrument designed and intended that the steam hoisting apparatus provided for therein should be placed in the hoistway which was already constructed. It is reasonable to suppose that if the parties had contemplated the construction of a new hoistway in another place, they would have said so in the lease, and would also have provided for its cost, location, etc. So long as Dickinson remained the sole lessee, therefore, the lessors not only had the right, but it was their duty to place the hoisting apparatus in the old hoistway, when required to build it. Nor were the rights and duties of the lessor, in this regard, at all changed by the sub-letting of a portion of the premises to these defendants, or of the remaining portion to other sub-tenants. The lessors stood in the same position in relation to all the tenants collectively, which they occupied in regard to the original lessee, although their duty to erect the apparatus was to be performed upon the requisition of the defendants alone. It follows, therefore, that when the injunction was obtained, the plaintiffs had a perfect right to complete the erection of the hoisting apparatus in the old hoistway, although such erection there would seriously obstruct the only entrance to the defendants’ portion of the building. The latter ought, perhaps, to have foreseen all that, and provided for a new entrance-way in their lease from Dickinson. It is sufficient to say, however, that the plaintiffs were not bound to do it by their lease.

But the agreement of the 19th of March materially modified the provisions of the original lease touching the hoisting apparatus, and essentially changed the relative positions of the parties. By that agreement it was, in effect, mutually stipulated that the work upon the hoisting apparatus should be suspended until a new stairway and entrance should be provided for the defendants and made ready for use, and the latter undertook and promised to pay the rent for such apparatus from and after the 23d of March, if the same together with such new entrance and stairway should be con- ; pleted within a reasonable time. It is important to consider, therefore, what the parties understood by those words of limitation reasonable time” in the new agreement.

The referee was quite right in holding, as he did, that the intention of the parties in this matter was to be gathered from all the circumstances bearing upon the subject under which they contracted. But he appears to have erred in assuming that at the time the agreement was made, the parties contemplated the necessity of a purchase by the plaintiffs, from the tenants of the ground floor, of the right to construct a new passage-way to the premises of the defendants, and that negotiations for such purchase were carried on until October. For, not only is that assumption unsupported by the evidence in the case, but the testimony of the witnesses clearly shows that both, the plaintiffs and the defendants believed, when the contract was made and until long afterwards, that Ayer & Co. had a legal right to construct such new passage-way, irrespective of any objection or consent on the part of Amidown & Co. The defendant Kobbe testified that he did not know, when the agreement of the 19th of March was entered into, that the contemplated new entrance could not be got except by consent of Amidown, nor did the witnesses so understand it, and he knew nothing whatever of subsequent negotiations between Ayer & Co. and Amidown. Mr. Amidown testified that frequent discussions were had between Ayer & Co. and himself prior to March, 1868, which was continued up to October, in which Ayer & Co. claimed that they had a legal right to construct a new passage-way for the defendants over the premises of Amidown & Co., and would assert that right by force if necessary, and the latter denied such right, and that no offer of a money compensation for permission to construct such entrance-way was made to Amidown & Co., previous to October, 1868, when they granted' the right. Mr. Birdseye, one of the counsel for the plaintiffs, testified that he frequently, and almost weekly, saw and conversed with Amidown & Co. and their counsel between March and October, touching the claims of those parties; that during those interviews he told Amidown that he would advise his clients to go on and put in the new entrance-way, and Amidown said he would resist such attempt with a strong hand; and that during all that time, he “never heard of any such thing as that Mr. Amidown would consent to take money for allowing the door-way there ; ” that he did not hear of any such thing being talked about or negotiated for, till just about the time when the agreement of October 17th, 1868, was entered into, and that the subject of his frequent discussions with Amidown & Co. and their counsel was, not a money compensation, but the legal rights of Amidown & Co. and the plaintiffs respectively. Mr. Crosby, the law partner of the last-mentioned witness, testified substantially to the same effect, and so did Mr. Ely, one of the plaintiffs.

It appears from the evidence, therefore, that the parties to the agreement of the 17th of October did not, nor did either of them, contemplate, that a purchase of the right to construct the new entrance-way by the plaintiffs would be necessary to enable them to perform" that act and erect the hoisting apparatus, and that no considerable portion, if any part, of the seven months which elapsed between the making of the agreement of ; March and the final completion of the work was employed by Ayer & Co. in negotiating for the right to construct the contemplated new entrance-way; and it follows that the referee’s conclusion, based upon the contrary hypothesis, that the entrance-way and apparatus were constructed within a reasonable time after the making of the contract, and that the plaintiffs were therefore, entitled to recover rent for the apparatus between the 23d of March, 1868, and the final completion of the hoisting apparatus, was erroneous.

The claim of recoupment on the part of the defendants for damages "because of the failure of the plaintiffs to construct the apparatus within a reasonable time after the making of the agreement of the 19th of March, does not appear to be established by the evidence. The agreement in effect, prohibited them from erecting the apparatus unless they also furnished the defendants with a new entrance-way, and it did not require the plaintiffs absolutely to furnish such entrance-way, but it was left by the contract wholly optional with them. The error of the referee, therefore, only affects the rights of the parties in so far as concerns the extent of the plaintiffs’ claim, and that ought to be reduced by deducting from the judgment the amount allowed by the referee for the rent of the hoisting apparatus from the 23d of March to the time when it was completed and ready for use. If the plaintiffs consent to make that reduction, the judgment, so modified, should be affirmed, with costs of this appeal to the defendants; if not, the judgment should be reversed, the report of the referee and the order of reference vacated, and a new trial ordered, with costs to abide the event.

It may be added that the decision of the referee touching the sufficiency of the apparatus cannot properly be disturbed, and he appears to have committed no substantial error in the conduct of the trial.

"Van" Vorst, J., concurred.

Monell, J. (concurring in part, dissenting in part).

I concur with the chief justice that the entrance-way was not constructed within a reasonable time ; that the failure to do so was a breach of the plaintiff’s agreement with the defendant, and that the plaintiffs should not recover rent therefor for any period anterior to its full completion.

But I think the chief justice is in error in holding that the damages which the defendant claims to have sustained "by reason of the breach of the contract by the plaintiffs, is not the subject of counter-claim or recoupment. They were damages for the breach of the same contract, and therefore within the definition of counter-claim (Code, § 150).

As the referee determined that the work was done within a reasonable time, he necessarily overruled the entire defence, as well the counter-claim, as that the plaintiffs should have no rent for the entrance-way.

It is not necessary, therefore, to look at the evidence of damage. The conclusion of the referee, as a matter of law overruling the counter-claim on the ground that the work was done in a reasonable time, having been erroneous, it is to be assumed that he did not overrule it as being unsupported by evidence.

I think the judgment should be set aside, order of reference vacated, and new trial granted, with costs to the appellants to abide the event.


text:
    WILLIAM KOENIG, Plaintiff and Appellant, v. ADAM STECKEL et al., Defendants and Respondents.
    Before Barbour, Ch. J., Fbeedman and Sedgwick, JJ.

      Decided May 31, 1873.

    I. Sureties on undertaxing to remove Cause prom Marine Court to Common Pleas.
    1. When their liability is suspended.

      a. It is suspended when the body of the defendant is taken under execution issued on the judgment rendered in the Common Pleas, and remains suspended as long as the defendant remains in custody thereunder.
    Appeal from judgment.

      STATEMENT OF FACTS.
    This action is brought upon a joint and several undertaking executed by the defendants and one Sebastian Banzer (against these two defendants only), upon the removal to the Common Pleas of an action from the Fourth District Court, in which this plaintiff was plaintiff, and said Banzer was defendant, conditioned in consideration of said removal and the sum of one dollar for the payment of any judgment which the plaintiff might recover in said Court of Common Pleas.
    The said plaintiff recovered judgment in said Common Pleas, for the sum of $419.12, against said Banzer, and an execution having been returned unsatisfied against his property, an execution against his body was issued, upon which he was taken in April, 1869.
    The defendants claim that the arrest of Banzer was a satisfaction of the judgment..
    , The case comes here on appeal by plaintiff from a judgment in favor of the defendants.

      George Carpenter, attorney, and of counsel for appellant, urged:
    I. The plea of imprisonment is a defence strictly personal to the principal debtor (Chapman v. Hatt, 11 Wend. 41; Sunderland v. Loder, 5 Wend. 58 ; Cooper v. Bigelow, 1 Cowen, 56; Wakeman v. Lyon and Evans, 9 Wend. 241).
    The cases in which the plea has been held to be good have been cases where,
    (1.) The property of the defendant in custody was sought to be tabeen, or some “ulterior” proceedings taken against a defendant upon the judgment upon which he was then held in custody.

    (2.) Or when a joint action was sought to be maintained against the defendant on the judgment, and his sureties upon some "bond, notes, or other security, given as collateral security to the judgment, and after it was recovered, and where the plaintiff, instead of looking to the collaterals, enforced the judgment, and took the defendant, and then still sought in a joint action against him and his sureties (and while he was in custody) to recover from them.
    II. The undertaking in suit "being a joint and several obligation, "the plaintiff had the right to sue all, or any, or as many of the obligors as hé chose (see Code, § 120; Brainard v. Jones, 11 How. 569 ; affirmed, 38 Barbour, 616).

      Samuel Hirsch, attorney, and of counsel for respondent.
   By the Court.—Barbour, C. J.

This case runs upon all fours in principle with Sunderland v. Loder (5 Wend. 58), where the obligors in a bond given for the payment of a judgment were sued thereupon, after the body of the judgment debtor had been taken in execution, and while he was still imprisoned. The court held that the taking of the body of the debtor in execution was a satisfaction of the debt for the payment of which the bond was given, so long as the imprisonment continued, and therefore that the action against the sureties of the debtor upon a collateral obligation could not be maintained (see also Wakeman v. Lyon, 9 Wend. 241).

The judgment should be affirmed, with costs.

Freedman and Sedgwick, JJ., concurred.


author: By the Court.—Freedman, J.

text:
    CHARLES R. TOWNSEND and THEODORE E. TOWNSEND, Plaintiffs and Respondents, v. THE NARRAGANSETT FIRE AND MARINE INSURANCE COMPANY, Defendants and Appellants.
    Before Barbour, Ch. J., Freedman and Sedgwick, J J.

      Decided May 31, 1873.
    I. Evidence, Exclusion oe.—Ebbob in, when not ground fob beVebsal of Judgment, although an Exception was pbopebly taken.
    1. When the question was put on cross-examination for the purpose of showing that the witness had on a previous trial given testimony in conflict with that which he on the then trial had given in answer to questions propounded on the direct examination, which evidence, though relevant, yet was of a relatively unimportant character when compared with the real merits of the case, and the General Term are of opinion that without a word of testimony from the witness, the verdict of the jury would have been precisely the same.
    Appeal from judgment.

      Howard Ellis and Samuel Jones, for appellant,.

      Osborn E. Bright, for respondent.
    The facts sufficiently appear in the opinion.
   By the Court.—Freedman, J.

This action is "brought upon a policy of insurance. The jury found for the plaintiffs, and the appeal is from the judgment. Neither a motion for the direction of a verdict, nor a motion for a new trial, was made below. We can therefore only look at the exceptions in determining defendant’s right to a new trial. Of these there seem but two that are of sufficient moment to be specially adverted to.

The first, which relates to defendant’s offer to show the quantity of tea kept on hand by other dealers than the plaintiffs, has already been disposed of by us adversely to the defendant in the case of the same plaintiffs against the Merchants’ Insurance Company of Providence, E. I.

The other relates to the exclusion of a certain question addressed by defendant’s counsel, to one of plaintiffs’ witnesses on his cross-examination, with the view of ascertaining from the lips of the witness whether on the trial of the case against the Merchants’ Insurance Company he had not given a somewhat different account of the doings of the members of a hook and ladder company in plaintiffs’ store at the time of the fire than he had given in this case. The question was a proper one, but it seems to have been excluded by the trial judge on his own motion, and upon the supposition that the witness had already been interrogated upon that point and had substantially answered the question. The case shows that in point of fact the witness had been examined in that direction, but not sufficiently so as to make the said question, which was more specific than any he had already answered, and more particularly directed his attention to his testimony given on the trial of the action against the Merchants’ Insurance Company, an improper one. The question should therefore have been allowed. But the error, if error it was, is not of sufficient importance to call for a reversal of the judgment. The whole inquiry into the action of the hook and ladder men on the night and upon the premises in question, though relevant, was of a relatively unimportant character, when compared with the real merits of the case, and as to these the case seems to have been thoroughly, ably, and fairly tried. Indeed, it is easy to see from the report of the whole case that even without a Avord of testimony from the witness referred to the verdict of the jury would have been precisely the same. The error must therefore he disregarded (City Bank of Brooklyn v. Dearborn, 20 N. Y. 244; Park Bank v. Tilton, 15 Abb. 384).

The judgment should he affirmed, with costs.

Barbour, O. J., and Sedgwick, J., concurred.


text:
    CHARLES R. TOWNSEND and THEODORE E. TOWNSEND, Plaintiffs and Respondents, v. THE MERCHANTS’ INSURANCE COMPANY OF PROVIDENCE, R. I., Defendant and Appellant.
    Before Barbour, Ch. J., Freedman and Sedgwick, JJ.

      Decided May 31, 1873.
    I. Evidence.—Presumption.
    1. Fraud.

      a. When a tradesman is accused of fraudulently overstating the amount of goods destroyed by a fire—such over-statement being mainly in one particular article—evidence as to the quantity of that article kept on hand by other tradesmen in the same line of business in his own neighborhood, and in the best portion of a much larger business centre, doing a business four or five times larger than that of the accused tradesman, is inadmissible.
    1. It cannot be presumed, nor can it be legitimately argued from
    the fact that such other tradesmen keep on hand a vastly smaller quantity of the article, that the accused did not have he quantity he claimed, and that he fraudulently overstated the amount he did have. ' '
    2. Such evidence is inadmissible to discredit the testimony of the tradesman so accused.
    2. Offer of settlement.—Insurance ease.

    1. Evidence of such offers is competent to prove the sufficiency of the proofs of loss.
    2. Offers of settlement are admissible in evidence, unless they appear to be confidential overtures of pacification, or are expressly stated to be made without prejudice.
    Appeal from judgment.

      This action is brought on a policy of insurance issued by defendant, insuring plaintiff against loss or damage by fire upon the stock of groceries, teas, and other merchandise, store furniture and fixtures of plaintiff in building No. 19 Newark Avenue, Jersey City, running through to Montgomery Street.
    At the time of the issuing of the policy, which was on December 7th, 1867, the plaintiffs were carrying on in said building the business of a tea, sugar, and general grocery store. The building was about 84 feet in length, 16 feet in width, on Newark Avenue; 13 feet in width on Montgomery Street, and 19 feet wide in the middle.
    A fire occurred in the store on the 23d of December, 1869, and caused substantially a total destruction of the property. The plaintiffs claimed a total loss of $7,404.22, and that there was also $1,207.12 worth of stock damaged to the extent of $842.75, making total amount of stock claimed to have been on hand at the time of the fire of $8,611.34, on which the claimed loss was $8,246.97.
    The defendant resisted payment on the ground, among others, that the claim was fraudulent, in that the amount of stock claimed to have been on hand and totally destroyed was grossly exaggerated, and exceeded the amount actually on hand by at least $3,500.
    To establish the fraudulent character of the claim it was shown, among other things, that the receipts of plaintiff had for the last year and half been constantly decreasing, so that during the last six months they were only one-fourth of what they had been a year and a half previously ; that nearly one-half of the stock claimed to have been destroyed consisted, as was claimed, of eighty-five half chests of tea, containing fifty pounds each, of the value of $1 a pound, amounting to $4,250 ; that plaintiffs claimed to have had forty-five of. these eighty-five half chests on hand for about two and a half years, and also claimed that these forty-five half chests contained different varieties of black tea; it was further shown that plaintiffs had, notwithstanding this, been during those two and a half years in the habit of making constant purchases to a considerable extent of the same varieties of tea as was contained in the forty-five half chests. There was also evidence that tea deteriorates by being kept, and if kept two and a half years would deteriorate from five to ten cents a pound. It also appeared that the plaintiffs had given three different statements, under oath, as to number of half-chests they had on hand.
    The proofs of loss showed that during the seven months preceding the fire plaintiffs’ purchases had been $14,711.71, and their sales $18,147,49.
    In this state of the evidence defendant’s counsel called as a witness William A. Parshall, who, being duly sworn, testified as follows:
    I am salesman for H. K. Thurber & Co. Their business was wholesale grocers and tea dealers. Have in behalf of that firm made sales of tea to various retail grocers in the city, and visited the retail stores. Know the line of teas which the retail grocers in this city carry.
    Q. What is the line of teas which retail grocers carry ?
    Objected to as incompetent and immaterial.
    Objection sustained. Exception.
    I have also sold to retail grocers in Jersey City, and been in their stores also, and know the line of teas which those retail grocers carry according to their stock.
    Defendant’s counsel—I now offer to prove by this witness the line of teas which retail grocers carry in Jersey City according to their stock.
    Objected to as'incompetent. ’
    Objection sustained.
    Q. What is the line of tea that groceries between Fourteenth Street, in this city, on the south of Forty-fourth Street, Third Avenue on the east, and Eighth Avenue on the west, occupying stores 25 feet "by 100, and doing a business of $100,000 a year, carry %

    Objected to as immaterial and incompetent.
    Objection sustained. Exception.
    • Q. What line of teas do groceries in the city of Hew York, occupying stores of 25 feet by 75, and doing a business of $100,000 a year, carry ?
    Objected to as incompetent and immaterial.
    Objection sustained. Exception.
    Q. What line of teas do grocery stores in Jersey City doing a business of $120,000 a year carry ?
    Objected to. Objection sustained.
    Exception.
    Q. What line of teas do grocery stores in Jersey City doing a business of $75,000 carry.
    Objected to as immaterial and incompetent.
    Objection sustained. Exception.
    Q. What line of teas do grocery stores in Jersey City doing a business of $25,000 a year carry %

    Objected to. Objection sustained.
    Exception.
    Q. By line of teas I mean how many chests of tea do they carry at one time and keep on hand at one time %

    In the course of the direct examination of one of the plaintiffs, the following questions were put, objections raised, responses made, exceptions taken, and evidence given:
    Q. Did you have a conversation with Mr. Heins during these negotiations about settlement, and if so, what ?
    Objected to.
    Q. State the first conversation, if you had one, when he spoke to you on the subject of settlement %

    Objected to as incompetent to prove offers of settlement.
    Objection sustained. Exception taken.
    Q. Did you have conversation with Mr. Heins ?

      A. Yes, sir.
    Q. About your stock % A. Yes, sir.
    Q. And about a settlement ? A. Yes, sir.
    Q. And did you answer any questions that he chose to put to you on that subject % A. Yes, sir.
    Plaintiffs’ counsel—I desire to prove, first, that with all the knowledge that the defendants could obtain, and all the knowledge they did obtain, they tried to get us to settle for a nominal reduction ; second, that with the same knowledge they tried to coerce us with an offer of $500 or moonshine.
    Defendant’s counsel—We object to that distinctly.
    Objection overruled. Exception taken.
    Q. State what conversation you had with Mr. Heins %

    The Court—I accept the testimony as bearing upon the question whether the plaintiffs did furnish the company sufficient memorandums, and data, and accounts " of loss to lay the foundation for their action looking towards an adjustment of the claim.
    Q. State the first interview you had with Mr. Heins in relation to any settlement.
    A. After the proofs of loss were rendered.
    Q. How long after, do you remember ?
    A. Some three or four days, I suppose.
    Q. Did he have your books of account at that time ?
    ' A. Hot at that time.
    By the Court:
    Q. Was this before the books of account had been given to him \ A. Yes, sir.
    Q. That this conversation was % A. Yes, sir.
    Q. (By defendant’s counsel.) And before your examination before the notary %

    A. Yes, sir, the first conversation.
    By the Court :
    Q. State whether at that time he made any objection to your claim, and if so, what %

    A. I do not know that he made any objection.

      Q. What did he say %

    Objected to. Objection overruled.
    Exception taken.
    Q. State the conversation %

    A. I saw Mr. Heins when he came over to my store with the proofs of loss, and examined the goods that were left. He asked me if I wanted to settle; I told him “yes.” He told me to come over to his office, and next day I went over and saw him. He asked me if I told, him “yes.” Well, he says, “I will give you $500 to settle.” Says I, “ What! ” Says he, “ I will give you $500 to settle, won’t you take it? Says I, “Of course I won’t take it.” Says he, “If you don’t take it I will make you see moonshine before I am done with you.” I just turned round and left him.
    Defendant’s counsel objected to last answer of the witness, and moved to strike out.
    Motion denied.' Exception taken.
    Q. Had you had any conversation with him prior to that %

      A. After that I saw Mr. Alliger and Mr. Heins together. That is about the time the money was due. They claimed some sixty days, I think it is, after the proofs of loss were rendered to pay the money.
    Defendant’s counsel objected to the witness stating the conversation with Mr. Heins and Mr. Alliger.
    Objection overruled. Exception taken.
    Q. Proceed.
    A. I saw Mr. Alliger and Mr. Heins. I had employed a man to make out my proofs of loss for me, and when I went to go to collect the money, I says to this friend I took with me—
    Objected to.
    Witness—Mr. Heins and Mr. Alliger agreed to leave it to Mr. Heins, and myself, and Mr. Tompson to settle. Then Mr. Heins, I went there several days before I could have an interview with him, and I sat down there and explained everything to him about my books and my papers I had rendered, and everything else, and it appeared all satisfactory. Then he asked me—
    Objected to.
    Q. State what was said.

      A. He asked me then if I would take any less. I told him no, I would not take any less. I asked him why he wanted me to take any less. “ Well,” says he, “you had better take a little less and go into business again.” I told him “no.” Says he, “I will see the company and let you know; come over to-morrow.” I went over there the next day, and he asked me if I was willing to submit to a private examination under oath. I told him, “Mr. Heins, I have told yon everything in regard to my papers and proofs of loss ; I am willing to submit to any examination.” So then he told me, gave me notice to go to Mr.—-
    Q. You were in good health at that time \

    Objected to as immaterial. Objection sustained.
    Defendant’s counsel moved to strike out that portion of this conversation in which he testified he was asked if he would not take a little less.
    Motion denied. Exception taken.
    The case went to the jury, who found a verdict for plaintiff for the full amount, from the judgment entered, on which verdict the defendant appealed.

      Howard Ellis and Samuel-Jones, for appellant.

      Osborn E. Bright, for respondents.
   By the Court.—Freedman, J.

This is an action upon a policy of insurance, and the appeal is from the judgment only. The case appears to have been ably, fully, and fairly tried, and to have been submitted to the jury under an elaborate charge to which no valid exception will lie. There seem to be but two exceptions which deserve to be specially noticed.

The first relates to the exclusion of certain testimony offered by defendant with a view of showing the line of teas which other retail grocers than the plaintiffs carry in Jersey City and in certain parts of the city of Yew York, according to their stock and the size of their stores. The object was to thereby discredit the testimony of one of the plaintiffs as to the amount of tea claimed to have been on hand at the time of the fire. The proposed inquiry, therefore, was not as to the existence of a general, uniform, and unvarying custom, with which to charge the plaintiffs, assuming that such could be done, but as to the business habits of a limited number of third parties engaged in a somewhat similar business. Such evidence is incompetent. Phoenix Fire Ins. Co. v. Philip (13 Wend. 81), is an express authority upon this point.

The other exception relates to the reception in evidence of an offer of compromise by defendant. Yo question was raised as to any want of authority in the agent who made it, but defendant objected solely upon the ground that it is incompetent to prove offers of settlement. The testimony was admitted as bearing upon the question of the sufficiency of the proofs of loss, and such sufficiency was a controverted question in the case. The policy provided that until such proofs be furnished, the loss should not become due and payable.- Upon this point the evidence was admissible. Yor did it appear that the offer was made without prejudice, or upon the faith of the success of a pending negotiation. It is only confidential overtures of pacification, and offers or propositions expressly stated to be made without prejudice, that are excluded on grounds of public policy (1, Greenl. on Ev. § 192). Yo error was therefore committed in admitting said evidence for the purpose referred to, and no harm can have accrued from its reception to the defendant for the reason that upon the other branch of the case the jury were expressly instructed to render a verdict for the defendant absolutely, in case they found that plaintiffs had been guilty of any fraud. Upon this latter point the charge was emphatic, and if it was not explicit enough to suit the views of defendants’ counsel, the court might and should have been requested to specifically cover the point alleged to have been left in doubt. But no such request was made as regarded the said offer.

The judgment should be affirmed with costs.

Barbour, Ch. J., and Sedgwick, J., concurred.


author: By the Court. —Curtis, J.

text:
    LUCIUS S. McCULLOCH, Plaintiff, v. CARLISLE NORWOOD, Receiver of the LORILLARD FIRE INSURANCE COMPANY,. Defendant.
    The courts of Common Pleas for the several counties of other States have been regarded by the courts of the State of New York as courts of record.
    In the case at bar, the company of which the defendant is the receiver, voluntarily submitted to the jurisdiction of the Court of Common Pleas of the County of Cuyahoga, State of Ohio; and it appears from the case that this court had jurisdiction over the cause at the commencement' of the action. Held, That the action did not abate by the dissolution of the company and the appointment of the defendant as receiver thereof during the pendency of the action, although these facts became known to plaintiff and no substitution of the defendant was made therein; and a judgment entered in said action in favor of plaintiff and against the company, is valid and binding upon and against the defendant, the receiver of said company.

      In the absence of proof to the contrary, it will be presumed by the courts of this State that the law of another State in regard to a subject-matter before the court, is the same as the law in this State (Leavenworth v. Brockway, 2 Hill. 202; Cheney v. Arnold, 15 N. Y. 353; Robinson v. Dauchy, 3 Barb. 21 and 29 ; Hoffman v. Carow, 22 Wend. 324).

      Before Freedman, Curtis, and Van Vorst, JJ.

      Decided June 28, 1873.
    Controversy pursuant to section 372 of the Code, as appears from the following case submitted.
    Lucius S. McCulloch claims to recover of the Lorillard Fire Insurance Company the sum of four thousand one hundred and forty-one dollars and twenty-seven cents, and demands payment thereof, with interest, from the receiver above named, who refuses payment and resists the said claim.
    The following are the facts upon which the said controversy depends:
    On the 13th day of April, A. D. 1866, in the city of Hew York, the said company, being a corporation duly organized under the laws of the State of Hew York, and authorized by its charter to make the contract hereinafter mentioned, executed and delivered its policy of insurance in writing to Lucius S. McCulloch upon certain property located at Berea, in the county of Cuyahoga and State of Ohio, whereby, in consideration of the payment by him of the premium of forty-five dollars to said company, it insured said McCulloch for a peried of one year from that date against loss or damage of said property by fire to the amount of three thousand •dollars, specified in said policy as “$2,000 on his stone “building, $800 on his steam engine and apparatus there“in, and $200 on his household furniture, clothing, and “books stored therein.”
    Prior to issuing said policy, said company required said McCulloch to answer in writing certain questions concerning the said property and risk, which questions and answers were made' a warranty and condition of granting said policy, and which were in part as follows :

      “Question 1—Is it (meaning the property aforesaid) “ owned and operated by the applicant?
    “ Answer—Yes.
    “Question—Is any other person interested in the “property? If so, state the interest.

      “Answer—No.

    “Question 31—Incumbrance—is there any on the “property?
    “Answer—Held by contract.”
    At this time, and at the date of the fire, McCulloch was in full possession and absolute enjoyment of the ' property in question. He held the real estate, including the buildings, which he used for a manufactory under a contract of sale from the owners in fee, which provided for the delivery to him of a deed thereto on payment of $2,000, the consideration therefor, of which sum $500, the amount due at that time, had been paid. Of the personal property he was absolute owner.
    On the 27th day or August, 1866, the said property so insured was totally destroyed by fire, and on or about the 5th day of September, 1866, the insured served on said company due notice and proof of the fire and loss aforesaid, which loss was duly adjusted by the authorized agent of the company.
    The amount of the loss under the said policy by .said fire, estimated according to the actual cash value at the time, was three thousand dollars, which was the amount of damage alleged in said proof of fire and loss. Ho part of said sum has been paid.
    In the Court of Common Pleas of the county of Cuyahoga and State of Ohio, on the 2d day of January, 1867, said McCulloch brought suit against said company to recover the amount of said loss under said policy of insurance.
    The company duly appeared by its attorney, and the, issues joined in said action having come on for trial before a jury, on or about the 12th day of December, 1867., a verdict was found for the defendant, and a judgment thereon for costs was duly entered.
    The plaintiff thereupon moved for a new trial, which was denied.
    To certain charges of the court and findings by the jury on said trial the plaintiff excepted, and moved for a new trial, which was denied, and thereupon he duly filed and prosecuted his petition in error in the District Court for the Fourth Judicial District of said State, which tribunal, after argument by both parties, and on or about the 22d day of September, 1868, reversed the judgment with costs, and ordered a new trial.
    To this judgment of reversal and order granting a new trial the company excepted, and duly filed and prosecuted its petition in error in the Supreme Court of the State of Ohio, which tribunal, after argument had on the 1st day of February, 1872, by both parties, affirmed said judgment of reversal and order for a new trial.
    Previous to the said argument, and after the appointment of the receiver hereinafter mentioned, the attorney of the said company in said suit by letter informed the president therof, who is the defendant herein, that he should appear and argue in behalf of the said petition in error, to which the defendant herein made no reply until the 4th day of March, 1872, when he instructed said attorney that his authority to appear in the case was at an end.
    The new trial as ordered came on regularly for hearing on the 14th day of May, 1872, when judgment was rendered and entered in favor of the plaintiff and against said company for the sum four thousand one hundred and forty-one dollars and twenty-seven cents damages and costs, no part of which has been paid.
    In the meantime, and in October, 1871, the Lorillard Fire Insurance Company became insolvent by the great fire at Chicago, and on the 17th of October, 1871, the defendant was duly appointed receiver of the company.
    On October 24th, 1871, judgment was duly rendered dissolving said corporation and continuing the receivership of the defendant. The action for the dissolution of the corporation was brought under and in conformity to the provisions of the revised statutes entitled “Of proceedings against corporations in equity.” Under the powers conferred upon said receiver, he has taken possession of the property and effects of said company, and has declared certain dividends thereon.
    The company continued to be represented by the same attorney and counsel who appeared for it when the action was originally begun, and who argued the above petitions in error in its behalf up to and'until the 14th day of May, 1872, when said, attorney and counsel for said company announced in open court that said company had been adjudged insolvent, and had been dissolved, and a receiver appointed by the Supreme Court of the State of New York, and that, under instructions from said receiver, he no longer had any authority to appear in the case.
    This was the first information received by the plaintiff or his attorneys of the insolvency and appointment of the receiver aforesaid; thereupon, and after such statement, said judgment was rendered.
    On the 24th day of May, 1872, the' Supreme Court of the State of New York, pursuant to the revised statutes of said state, by its order duly entered, required all creditors of said Lorillard Fire Insurance Company to present their claims within sis months from the publication of said order to Tallmadge W. Foster, Esq., as referee, to hear and determine said claims.
    In pursuance of said order, Lucius S. McCulloch, by Convers & Lyman, his attorneys, in October, 1872, duly presented to said referee a statement of his claim in writing, substantially as herein alleged, and offered proof thereof; and at the same time the receiver duly appeared before said referee, by Norwood & Coggeshall, his attorneys, and opposed the allowance of said claim.
    Thereafter it was and it hereby is stipulated, by both parties, that this claim should be withdrawn from said referee and submitted to the General Term of this court without further proceedings before said referee, as a casé agreed upon in a controversy submitted without action.
    None of the admissions herein contained are in any wise to affect either party, or to be regarded as made, except for the purpose of this submission of this controversy.
    The questions submitted to the court upon this case are as follows:
    First.—Is the judgment rendered against the Lorillard Fire Insurance Company on the 14th day of May, 1872, valid against the receiver ?
    If this question is answered in the affirmative, then judgment is to be rendered against the said receiver for the sum of four thousand one hundred and forty-one dollars and twenty-seven cents, with interest from the 14th day of May, 1872.
    If this question is answered in the negative, then—
    Second.-—Was there such a breach of warranty as to Ms interest in the property insured, on the part of Xiucius S. McCulloch, as to render said policy void %

    If this question is answered in the negative, then judgment is to be rendered herein against the said receiver for the sum of three thousand dollars, with interest from the 5th day of November, 1866.
    If answered in the affirmative, then judgment is to be rendered in favor of said receiver.
    Dated May 14th, 1873.

      Converse & Lyman, attorneys for plaintiff.

      Mr. Lyman, of counsel.

      Mr. Carlisle Norwood, Jr., for defendant.
   By the Court. —Curtis, J.

This is a controversy submitted pursuant to § 372 of the Code.

The facts appear in the case submitted.

The first objection raised by the defendant is, that in the statement of facts agreed upon, the jurisdiction of the foreign tribunal over the cause, over the thing and over the parties, should have been specifically shown and cannot be presumed. It appears by the statement, that the plaintiff brought suit against the company in the Court of Common Pleas of the county of Cuyahoga and State of Ohio, and that the company duly appeared by its attorney. The courts of Common Pleas for counties in other States, have been regarded in this state as courts of record, possessing in civil cases a general jurisdiction to any amount, with the exception of suit for real property. This court early held this in regard to the Court of Common Pleas for the County of Suffolk, Massachusetts. Harrod v. Barretto (1 Hall, 155), adopting the rule of presumption in that respect, that prevailed in the Supreme Court of the United States (Kempe’s Lessee, v. Kennedy, 5 Cranch, 173). The Supreme Court of this State have held the same. Foot v. Stevens (17 Wend. 483), and the cases cited on behalf of the defendant do not vary the rule.

The company .voluntarily submitted to the jurisdiction of the tribunal of another State, and admit that they there duly appeared by their attorney. It is clear that the statement of facts submitted, shows that the Ohio court had jurisdiction over the cause at its commencement, and the next question raised by the defendant, and to be considered, is, whether the Ohio tribunal at any time lost that jurisdiction.

The defendant claims that the action abated by the dissolution of the company. The act of 1832, “To prevent the abatement of suits by or against corporations,” provides that the court in which any suit or proceeding against a corporation which shall have been dissolved by the Supreme Court, or by the expiration of its charter or otherwise, shall be pending at the time of such, dissolution, shall have power on the application of either party thereto to make an order for the continuance of such suit or proceeding, and the same may be thereafter continued until a final judgment or decree shall have been had therein, which shall have the same effect upon the rights of the parties as if such corporation had not been dissolved” (Laws of 1832, ch. 295 ; 1 R. S. 4 ed. p. 1174, § 14). The Code, § 121, directs that no action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue, and provides for its continuance either in the name of the representative or successor in interest, or in the name of the original party, or that of the transferee, as the case may be. Previously to these enactments, it was held that when pending a suit by a foreign corporation, its charter was repealed, the action did not abate (Lombard Bank v. Thorp, 6 Cowen, 46), and the trustees who succeeded to its property were substituted.

For the purposes of this case, we must assume in the absence of'any proof to the contrary, that the law of Ohio in respect to the abatement and continuance of actions is the same as our own. In Leavenworth v. Brockway (2 Hill, 202,) the court use this language: “The onus próbandi was upon the defendant, to show “the law of Ohio to be different from that of this State, “if he wished any advantage from it. In the absence “of such proof, the court in cases like the ^present “should act according to its own laws.” “In Chendy “v. Arnold, 15 N. Y. R. 353, Denio, Ch. J., says : “Na “evidence was produced respecting the matrimonial “law of Rhode Island. In the absence of such evi- “ dence, we are to intend that is the same as our law.” To the same effect Robinson v. Dauchy, 3 Barb. 21, 29, where the court assumes, in the absence of proof on the subject, that the law of Massachusetts in respect to the purchase of goods under false pretences is like our own; also Hoffman v. Carow (22 Wen. 324). Consequently, assuming the law of Ohio, in'the absence of all proof in respect to it, to be the same as our own, it then becomes necessary to consider whether we can inquire into the course of proceedings in the suit in the' Ohio courts, to determine whether the action upon the dissolution of the corporation was duly proceeded with in that State, against the corporation and in conformity to law. As in accordance with our law, the suit did not abate: it only remains to see if it was properly continued. In other words, in an action to recover upon a judgment record of a court in another state, where no application has been made for relief in the court where it was recovered, and no objection is interposed by answer or demurrer, or otherwise, before the hearing, can it be a subject of inquiry whether the action was properly continued or not %

This question may be considered as answered by the well-settled presumptions of law in respect to legal proceedings. In the case of Harrod v. Barretto (1 Hall, 155), the opinion of the court by Oakley, J., seems to make it conclusive, that in an action upon a judgment obtained in the courts of another State, it is competent for the defendant to show by a special plea that the court in which the judgment was rendered had no jurisdiction either of his person or the subject-matter, and'that every presumption is in favor of the jurisdiction of the court which rendered the judgment, and the plea must negate, by positive averments, every fact from which that jurisdiction might arise.

There is nothing in the present case showing on the part of the defendant or otherwise any failure "by the Ohio court to retain the jurisdiction it originally acquired over the suit by the voluntary appearance of the corporation. It could not be divested of that jurisdiction by any non-appearance of the attorney at a subsequent stage of the litigation, and gs we must assume the Ohio law, in the absence of all proof, to be the same as our law, we are consequently also bound to presume that the court, by all due measures, continued to be clothed with jurisdiction, until the rendition of its final judgment. For us to presume the contrary would be without precedent, and would also introduce a new element of difficulty in the prosecution of suits to recover upon a judgment rendered in another State. It is better to adhere to the well-considered ruling presented in the case of Harrod v. Barretto (supra), in reference to the legal presumption of regularity and jurisdiction, than to attempt in a summary manner to negate the well-considered judgment of a court in another State.

This view also is in accordance with that policy of legislation and adjudication which seeks to protect the rights and remedies of parties from being destroyed or diminished by proceedings to appoint receivers, and by the dissolution or sequestration of corporations. The construction given to the national banking act, in the Bank of Bethel v. Paguisque Bank (14 Wallace, 383), though not analogous to the blew York statute, shows this tendency. It was held that a bank could be sued though a receiver was appointed and was administering its concerns, and that his decision upon the validity of a claim was not final, but that the creditor, could proceed afterwards to have the validity of the claim judicially adjudicated in a suit in a proper State court, against the bank.

The law cannot endorse the action of a receiver, when he seeks to place himself in a position to reap the benefit of a decision, if it should prove favorable to the company, and to escape the consequences if it should prove adverse. It is a part of his duty to protect its assets for the "benefit of each anil every creditor alike, and depriving no one by any act of his of his legal rights.

Having arrived at the conclusion that the first question submitted to the- court upon this case is to be answered in the affirmative, and that the judgment in Ohio is valid against the receiver, there is no occasion to look" at the second question submitted.

There should be a judgment rendered in favor of the plaintiff, against the defendant, for the sum of §4,141.27, with interest from May 14, 1872.

Freedman and Van Vorst, JJ., concurred.


author: By the Court.—Van Vorst, J.

text:
    FRANCIS J. GEIS, Plaintiff and Appellant, v. FREDERICK W. LOEW, Defendant and Respondent.
    Before Freedman, Curtis, and Van Vorst, JJ.

      Decided June 28, 1873.
    An older that the corrjplaint shall be amended, and made more definite and certain, so that the same shall state fully in detail, and with particularity, the several proceedings by or in behalf of the mayor, aldermen, and commonalty of the city of New York, etc., taken and relating to the imposition of assessments mentioned in the complaint, is not appealable.
    Appeal from an order.

      Howard Ellis, attorney for appellant.

      Samuel J. Glassey, of counsel.

      Frederick Swarts, attorney for respondent.

      John M. Scribner, Jr., of counsel.
   By the Court.—Van Vorst, J.

This is an appeal from an order made hy a judge at Special Term, directing that the complaint be made more definite and certain, by stating in detail the several proceedings by or on behalf of the mayor, aldermen, and commonalty of the city of Hew York, or the common council or officers of the corporation, and all acts or proceedings taken by them relating to the intention of certain assessments by the municipal authority, mentioned in the complaint.

The action being brought to recover the amount of the assessments, under the defendant’s covenant to the plaintiff against encumbrances.

It is objected by the defendant’s counsel, that the order is not appealable.

The order in question involves neither the merits of the action, nor does it affect a substantial right.

By the merits are to be understood the strict legal rights of the parties as distinguished from mere questions of practice in the reformation of pleadings, and by a substantial right is to be understood a question of right insolved in the assizes (Salters v. Genin, 10 Abb. 478; S. C. 19 How. 233).

This is simply a question of the form of a pleading, and whether or not it should set up with more detail certain special proceedings of the municipal government. It can in no manner prejudice either the plaintiff’s claim or his ultimate right to recover.

It has been repeatedly held, and as we think correctly, that orders of an analogous character with regard to pleadings, are not appealable. Orders refusing to strike out matter as irrelevant and redundant, do not involve the merits and are not appealable (Murphy v. Dickinson, 40 How. Pr. 66; Hughes v. Mercantile Mut. Ins. Co., 10 Abb. Pr. N. S. 37).

An order denying a motion to strike out a pleading as frivolous,' is not appealable (Dixon Crucible Co. v. The New York City Steel Works, 57 Barb. 447).

An order denying a motion to require plaintiff to make his complaint more definite and certain, is not appealable (Feild v. Stewart, 8 Abb. Pr. N. S.193; S. C. 41 How. Pr. 95; Murphy v. Dickinson, supra).

If the defendant could not have appealed, had his motion been denied, no logical reason can be assigned, why the plaintiff should appeal when granted.

In this view of the subject, it is not necessary for us to inquire or decide as to whether or not the plaintiff’s complaint has required to be made more certain by the amendments mentioned in the order appealed from. . It is not decided by the judge at Special Term. •

The appeal should be dismissed with costs.

Freedman and Curtis JJ. concurred.


author: By the Court.—Vah Vorst, J.

text:
    HENRY WHITTAKER, Jr., Plaintiff and Respondent, v. JOSEPH S. STEBBINS et al., Defendants and Appellants.
    Before Freedman, and Van "V oust, JJ.

      Decided June, 28, 1873.

    In an action relating to a trust fund a motion was made that defendant, the trustee, should pay the money that came into his hands under the trust deed, into court, and that a receiver should be appointed, etc. The defendant in his counter-affidavit, and on the hearing of the motion, stated that he was ready, able, and willing to discharge and perform all his liabilities and duties as trustee, and to give such security as the court might deem necessary.
    The court deemed security necessary, and made an order to that effect.

      Held on appeal, That it having been left to the discretion of the court by the defendant, to direct the giving of security, the order cannot be reviewed on appeal.
    Appeal from order of Special Term.

      W. Gleason, attorney for appellants.

      Levi S. Chatfield, of counsel.

      H. Whittaker, for respondent.
   By the Court.—Vah Vorst, J.

The plaintiff has an interest under the deed of trust, executed by Coolbaugh to the defendant in 1866.

The existence of a claim in his favor is recognized by the trustee, and provision is made for its payment out of the trust estate conveyed to defendant, although the amount of the claim is not fixed by the instrument.

The plaintiff has a direct interest to insist that the trust be properly administered, and the property faithfully applied according to the terms of the deed.

The motion of the plaintiff was for an order that defendant be ordered to pay the money admitted to have come in his hands under the trust deed, and unadministered into court, and that a receiver be appointed, etc. The allegations in the missing affidavit were to the effect that defendant had recently failed in business and became insolvent, and that his personal property had been seized and sold by the sheriff on execution, and that the trust fund, unless secured, was in danger.

The motion was made, in an action pending in the plaintiff’s favor, to compel an accounting by the defendant for his removal from the trusteeship, and for the appointment of a receiver.

The defendant, by his affidavit in answer to the motion, denied the allegations of his insolvency, but did not deny that his personal property had been seized and sold by the sheriff on execution on judgments against him. The defendant, in his affidavit, read on the motion, stated “that he is ready, able, and willing to discharge and perform all his duties and liabilities as such trustee, and to give such security for the same as this court may deem necessary.”

On. the hearing of the motion the court deeming that security was necessary, made an order fixing the amount of the security to be given by defendants, and its form and conditions, and in the event that the security was not given by the time fixed in the order, the plaintiff’s motion should be granted.

It having been left to the discretion of the court by the defendant to direct the giving of security, if it should be deemed necessary, we think that the order made by the judge directs the giving of such security, and if not given, that the motion he granted cannot be received on appeal.

A decision made on motion, which is left to the discretion of the court by law, is not appealable, unless the discretion be abused (Briggs v. Vandenburgh, 22 N. Y. 468; Foshay v Drost, 4 Bosw. 664; Fort r. Bard, 1 Corns. 43). If it was so left by the counsel of the parties, on a motion, and to be exercised in fixing the conditions of granting or denying a motion, the result would be same.

Besides, the granting of the order did not affect the merits of the controversy, or involve a substantial right under the issues in the action. It determined nothing on the merits against the defendants. Its object was to secure the money and profits for distribution under the deed of trust. This was in the interest of all the beneficiaries, and is not appealable, and was deemed necessary by the court (Sheldon v. Weeks, 2 Barton R. 533 ; Siney v. N. Y. Consol. Stage Co., 28 How. 481; Moore v. Moore, 14 Barb. 27; Rowley v. Van Benthuysen, 16 Wend. 376).

The defendant may yet give the security ordered by Judge Curtis, and avail himself of its terms.

The order appealed from is affirmed, with costs.

Freeemah, J., concurred.