author: By the Court. Duer, J.

text:
    The General Mutual Insurance Company v. Alfred G. Benson.
    Since the Code, there is no distinction, between suits at law and in equity, arising from the form of the pleadings, or the jurisdiction of the court.
    When the sufficiency of a complaint is denied, as not stating facts constituting a cause of action, the only question is, whether the plaintiff, upon the facts stated, is entitled to the relief which he claims, and it is immaterial, whether that relief be legal or equitable.
    If the relief be equitable in its nature, but cannot properly be granted without the presence of other parties, the objection of a defect of parties must be taken by demurrer, or answer; and, if not so taken, it must be held to be waived.
    It cannot be taken upon the trial, in the form of an objection to the complaint, as not stating facts sufficient to constitute a cause of action.
    As a general rule, when a fund is in the hands of a trustee, which he is bound to distribute to different persons in unequal proportion, all interested in the distribution are necessary parties to an action against the trustee.
    But, when the sum that each is entitled to receive has been ascertained, by a proceeding binding on the trustee, each may maintain a separate action for his proportionate share, thus ascertained.
    Judgment for plaintiffs affirmed, with costs,
    (Before Doer, Campbell and HomiAZf, J.J.)
    December term, 1855.
    Appeal by defendant from a judgment entered, upon the report of a referee, in favor of the plaintiffs, for the sum of $2,062.74, including interest and costs.
    The cause was before the court upon a case containing the pleadings, report of the referee, and proceedings upon the trial.
    The following are the pleadings and report. The proceedings it is deemed unnecessary to state.
    City and county of Hew York, ss. :
    The above named plaintiffs, by Alexander Hamilton, jun., their attorney, complain of the above-named defendant, and show to this court:
    That the said plaintiffs made and executed a certain policy of insurance, whereby they became insurers of cargo on board of the ship Russell Glover, to the amount of ten thousand seven hundred and twenty-seven dollars and eighty-one cents.

      That the said ship, together with the cargo on board thereof, was afterwards wrecked, and became a total loss, and the said plaintiffs have paid to the parties entitled thereto the whole amount which they agreed to pay by the terms of their said policy as aforesaid, to wit, the sum of eleven thousand eight hundred and twenty-seven dollars.
    The said plaintiffs further show that the said defendant has, since the payment of the said loss, received a large sum of money from the sale of certain portions of the said cargo, which were saved, amounting in the whole, as these plaintiffs are informed and believe, to the sum of twelve thousand dollars, and upwards ; that the said sum, received by him as aforesaid, belongs to the insurers of the said cargo, to whom the same was duly abandoned in proportionate parts, according to the sums respectively insured by them; and that the said plaintiffs are entitled to receive from the said defendant, for their share or proportionate part thereof, the sum of one thousand six hundred and one dollars and fifty-one cents, with interest thereon, and that the said defendant has been requested to pay the same, but has neglected and refused to pay the same, or any part thereof to the said plaintiffs; that annexed hereto is a copy of an average statement or adjustment of the said salvage, and which, the plaintiffs pray, may be taken as a part of this their complaint.
    And these plaintiffs further show, that the said defendant received the said sum of twelve thousand dollars, before referred to, acting as agent or otherwise, in a fiduciary capacity, for the said insurers, and for these plaintiffs as one of them, entitled to their proportionate share of said sum of twelve -thousand dollars, and unjustly and improperly refuses to pay over said proportionate share or sum, amounting to one thousand six hundred and one dollars and fifty-one cents, as above stated,
    Wherefore, the plaintiffs demand judgment against the said defendant for the said sum of one thousand six hundred and one dollars and fifly-one cents, with interest from the first day of July, 1853, together with their costs, and a reasonable allowance for the expenses of this suit.
    Alex. Hamilton, Jun,, Plaintiffs’ Attorney.

      SHIP BUSSELL GLOVER.
    Total amount on board estimated to be $80,882.22. Savings estimated $12,000=14finnr per cent.
    Astor Mutual Insurance Co. Union “ “ “
    Mercantile “ “
    Atlantic “ “
    St. Louis Perpetual “ “
    Sun Mutual “ “
    Delaware Mutual Safety “
    Cincinnati Insurance “
    New England Mutual Ins. “
    General “ “ “
    Uninsured, say ....
    $13,964 00 Becd. $2,084 64
    1,400 00 tt 209 01
    6,918 00 a 1,032 77
    12,200 73 tt 1,821 41
    3,455 17 u 515 81
    4,915 21 u 733 78
    200 00 41 29 86
    249 58 a 37 26
    3,079 53 tt 459 73
    10,727 81 ¿t 1,601 51
    ■ 3,474 18 23,272 19 u
    $80,382 22 $12,000 90
    Walter B. Jones, Jr.,
    Henry W. Johnson,
    A. F. Higgins,
    Average
    Adjusters.
    The defendant, answering, says, that he has no knowledge or information whereby to form a belief whether—

      First. The plaintiffs became insurers of the cargo on board said Bussell Glover to any amount: or—.

      Second. Whether they have paid to the parties entitled thereto, the whole or any amount which they agreed to pay, as alleged.
    The defendant has received a sum of money, amounting to something about twelve thousand dollars, but the exact amount this defendant has not now the means of stating, which moneys he believes to have come from the sale of the wreck, or portions of the wreck and cargo of said ship; but this defendant has no knowledge or means of information as to who owns or is entitled to said moneys, nor any knowledge to whom he ought to pay it; or whether the plaintiffs are entitled to any portion thereof; nor can such knowledge be had by him, or by them, or by any person, until the customary average papers are fully made up, which has not been done; and this defendant, according to commercial usage, would be wrong and unsafe in paying any portion of said money to any person till such, papers are made up, which has not yet been done.
    Nevertheless, this defendant is willing and desirous to pay such moneys to any person entitled to have and receive them, and respectfully submits the entire matter to this court, and will abide by their decision herein.
    And, for the defence further herein, this defendant saith, that the plaintiffs in this cause are indebted to him in a sum of about five hundred dollars on contract, and for money had and received, which this defendant asks to have off-set, and pleads as a counterclaim to any sum which this court may find due to them out of the moneys in his hands.
    Nevertheless, this defendant denies that he received said moneys in a fiduciary capacity, or in any way except in the regular course of his business as a commission merchant, they having come into his hands on the sale of consignments to him, and drafts sent to him, for all of which he accounted to his correspondent, and was directed, after paying over certain sums to certain persons, to retain the balance, subject to the result of the average adjustment in the matter of the Russell Glover, which he has done.
    The defendant denies that the statement annexed to the complaint is an average adjustment or statement therein, and saith the same is only an estimate, and not a full or final statement; and this defendant asks to be discharged accordingly.
    Marvin & Prime, Defb’s Attys.
    The plaintiffs replying to the answer of the defendant, herein deny that they are indebted to the said defendant as stated and alleged in said answers; and they also deny that the said defendant is entitled to any off-set or counter claim whatever against them, and they therefore demand judgment against the said defendant, as asked for in their complaint in this cause.
    Alexander Hamilton, Jr., Plaintiffs’ Atty.

      To the Superior Cowl of the City of New York :

    I, Philo T. Buggies, of the city of New York, referee, to whom the above entitled action, and all the issues therein, were referred, to hear and determine the same, by an order of the court, made at a Special Term thereof, held at the City Hall,, in the city of New York, on the 22d day of March, 1855 :
    Do respectfully report, that I have been attended on said reference by Alexander Hamilton, jr., Esq., the attorney for the plaintiffs, and W. C. Prime, Esq., attorney for the defendant, and have heard and considered the proofs and allegations of the respective parties, and the arguments of counsel, and I find and report as matters of fact—■
    That the said plaintiffs, being then a corporation engaged in the business of marine insurance, and having an office in the city of New York, became insurers of cargo on board the ship Russell Glover, in the sum of eleven thousand eight hundred and twenty-seven dollars, and that said ship was afterwards wrecked and became a total loss, and that the plaintiffs paid to the parties insured by them, (upon receiving from them an abandonment of their interest,) as for a total loss upon the cargo so insured, the sum of eleven thousand eight hundred and twenty-seven dollars.
    That certain portions of said cargo were saved and afterwards sold, and that the proceeds of sales thereof, amounting to the sum of twelve thousand nine hundred and sixty-three dollars and twenty-five cents, came into the hands of and were received by said defendant; and that in a fiduciary capacity, and as trustee for the parties entitled thereto, the said sum was received by him at various periods between the 16th of April, 1852, and the 17th of June, 1852, when the last instalment thereof was received by him.
    I further find, that, after deducting and allowing from the said sum of twelve thousand nine hundred and sixty-three dollars and twenty-five cents, the sum of one thousand dollars for the compensation of the adjuster, and charges for collecting drafts, as well as a commission of two and one-half per cent, for receiving and paying, and all other charges thereon, there remains in his hands a net balance of eleven thousand six hundred and ten dollars nineteen cents, without charging interest to be divided and distributed among the underwriters, and others interested therein, including the plaintiffs in this action, according to their respective interests, and that a part of such sum so received by the defendant was identified by the marks and invoices so arising from sales of the particular goods and merchandises insured by said plaintiffs.

      I further find, and report, that the share or proportion of the net proceeds of said cargo, after deducting charges and commissions above referred to, belonging to the plaintiffs, in the hand of defendant, amounts to the sum of fifteen hundred and forty-nine dollars and forty-eight cents, and that the final adjustment and distributions of said proceeds of sales (after allowing a reasonable time for completing said adjustment) could have been made on the first day of March, 1853.
    I further find that the said defendant has settled with, and paid to various parties interested, the full amount to which they were entitled, under the pro forma adjustment annexed to the complaint herein.
    From the facts so found and reported, I further find, decide and report, as matters of law, that the plaintiffs are entitled to judgment against the defendant for the sum of fifteen hundred and forty-nine dollars and forty-eight cents, together with interest thereon, from the first day of July, 1853, and costs.
    All which is respectfully submitted.
    Dated New York, July 17, 1855.
    Philo T. Ruggles, Referee.
    The defendant excepted to the report of the referee, upon the ground, that he had erred in not granting a motion, made upon the trial, that the complaint should be dismissed, as not stating facts sufiicient to constitute a cause of action. And also upon the grounds, that the findings and decision of the referee were contrary to law and evidence.
    W. 0. Prime, for the defendant, appellant.
    The complaint does not state facts sufficient to constitute a cause of action, and this objection was properly taken on the trial, and, indeed, may be taken in any stage of the cause, (2 Duer, 650 ; 3 Selden, 464.) The plaintiffs had no right to bring an action at law for their share of the fund; their proper and sole remedy was a suit in equity, for the distribution of the fund, in which all the parties interested should be joined. (1 John. 165; 2 Barb. 135,145; 1 Stark. 572; 2 Chitty, 263.) The plaintiffs also failed to prove their complaint upon the trial. They did not show that their proportion of the fund had been ascertained by a proceeding binding upon all the parties interested, and without such proof they were clearly not entitled to recover. (3 Ado. & Ellis, 99; 12 John. 296.) The defendant cannot safely account and pay over to any one of the cestuis que trust, without knowing the extent of his liability to each and all, and, hence, all the parties in interest should be parties to the action, it being certain, that those who are not parties, will not be bound by any judgment that can be rendered.
    The judgment ought to be reversed, and the complaint be dismissed, or a new trial be granted.

      A. Hamilton, Jun., for the plaintiffs, respondents.
    The referee decided correctly in denying the motion to dismiss the complaint. This is not the case of parties interested in a trust fund, where the proportions are unequal, and the amount due to each not ascertained. Here, the amount has been ascertained by an adjustment made by proper and skilful persons, and the exact sum due to the plaintiffs is stated by the referee, and his finding of the facts is supported by the evidence. The defendant is, moreover, estopped, from setting up that the proportions due to the several parties are not ascertained, by his voluntary payment to two of the parties, more than two years since, of the exact amounts due to them under the adjustment, and by the allowance, to a third, even of a larger sum than that so ascertained to be due to him. Upon the whole case, it is manifest, that this defence has been interposed merely for delay, and to avoid the payment of a large sum certainly due to the plaintiffs, and which the defendant, without any reasonable excuse, has withheld from them for nearly four years.
    I claim that the judgment which they have at last obtained should be affirmed, with costs. - <-
   By the Court. Duer, J.

We can perceive no ground whatever for setting aside the report of the referee, as contrary to evidence. It appears to us, that all the facts found by him were, not only sufficiently, but very clearly, proved.

The only questions, then, to be considered, are questions of law, arising upon the pleadings, and upon the facts as found by the referee. The first of these questions is, whether the complaint states facts sufficient to constitute a cause of action. The second, whether the decision of the referee, that the plaintiffs were entitled to recover, is a just conclusion of law from the facts which he has found.

The counsel for the defendant was right, in saying that an objection to a complaint, as not containing facts sufficient to constitute a cause of action, although not raised by a demurrer, may be taken upon the trial; but it is not necessary to say, that if not so taken, it may be raised upon an appeal from a judgment. Here, it appears from the case, that the objection was taken on the trial, but the counsel is mistaken in supposing that it ought to have been allowed by the referee, since we are clearly of opinion that it was not at all applicable to the complaint before him.

It may be true, that where a fund is in the hands of a trustee, with directions to pay it over to different persons in different proportions, all who are thus interested, in the distribution of the fund, are proper parties to an action against the trustee, but it by no means follows, that when an action against the trustee is brought by one of those persons, to compel the payment of the distributive share to which he claims to be entitled, the complaint is defective, as not stating facts constituting a cause of action, since it is manifest, that, in respect to the plaintiff, and the relief which he personally seeks, the cause of action is exactly the same, as if, by the terms of the complaint, all interested in the fund had been made parties, as plaintiffs or defendants. The true and only objection in such a case is, that all so interested ought to be brought in as parties, in other words, that there is a defect of parties, but it is certain, that this is an objection that can only be taken by demurrer or answer, and when not so taken is deemed to be waived, (Code, § 148.) Here, it cannot be pretended that the objection is taken in the answer, and hence, if it was meant to be raised before the referee he had no right to listen to it.

The argument for the defendant overlooks, entirely, the fact, that, since the Code, there is no longer any distinction between suits at law and in equity, as arising from the form of the pleadings, or the jurisdiction of the court; and hence, the cases to which we were referred, and which were all determined before the Code was enacted, have no application. When the sufficiency of a complaint, as not stating facts constituting a cause of action, is now denied, the only question is, whether, if the facts stated are admitted to be true, the plaintiff is entitled to the relief which he claims; and, in determining this question, it is quite immaterial, whether the relief sought is, in its nature, legal or equitable. Hence, if the present action, as involving the distribution of a fund by a trustee, is to be deemed equitable in its nature, but the presence of other parties was thought to be necessary, before the relief sought, although proper in itself, could with propriety be granted, the absence of those parties, ought to have been made a ground of objection, at the time and in the form prescribed by the Code, in order that the plaintiff might bring them in, if their presence were held to be necessary. As the objection has not been taken, in the only mode that the Code has sanctioned, we cannot do otherwise than hold, that it cannot now be urged. But we go further. Had the objection, that has been so strongly relied upon, been raised by a demurrer to the complaint, (the only form in which it could properly be raised,) we are clearly of opinion that it could not have been allowed to prevail. We are satisfied, that, upon the facts set forth in the complaint, it must have been held, that the plaintiff was entitled to maintain the action, in his own name, and on his own behalf, without any reference to the possible claims of other parties.

Where an action is brought against a trustee for a distributive share of a fund, which he is bound to distribute to different persons in unequal proportions, and the proportionate share of each has not yet been ascertained, it cannot be doubted, that all who are interested in the distribution, are necessary parties to the action; but it is equally certain, that, when the proportionate share of each distributee has been definitely ascertained, by a proceeding, binding on the trustee, each is entitled to demand the payment of the share belonging to him, and, when the payment is withheld, may maintain a separate action for its recovery. The liability of the trustee to each is, then, exactly the same, as if the sum, ascertained to belong to him, had been the only sum which the trustee had received, and had been directed to pay. The case is, then, brought within the application of a rule, which, however doubtful it may be regarded upon the English authorities, has long been the established law in this state—the rule, that where A places a sum of money in the hands of B, to be paid over to C, the latter may maintain an action against B for its recovery, as so much money had and received to his use, even when no privity has been created between them by an express promise of payment. (Weston v. Barker, 12 John. R. 279.)

The sum of $12,000, which was placed, in this case, in the hands of the defendant, belonged to the different insurance com■panies, by whom a total loss upon the cargo of the ship named in the complaint had been paid, and belonged to them in proportion to the sums which they had respectively insured and paid. It was his duty, according to the usage of merchants, to cause the sum that each company was entitled to receive to be ascertained, by an estimate or adjustment, to be made by persons of competent skill, usually employed for such purposes. And if such an adjustment was, in fact, made, it was binding on the defendant, unless shown to be erroneous, and each company became, at once, entitled to demand and receive payment of its proportionate share, as thus ascertained, and, if necessary, to enforce its payment by a separate action.

Now, as we read the complaint, it avers, with sufficient certainty, that an average statement or adjustment, showing the sum that each company was entitled to receive, and a copy of which is annexed to the complaint, and forms a part of it, was properly made; and that the plaintiffs have demanded payment of their proportionate share, as thus ascertained, and that such payment had been refused by the defendant. The complaint, therefore, in our opinion, contains an averment of all the facts, that the plaintiffs could be bound to prove upon the trial, to entitle them to recover in a separate action; and, hence, had a demurrer been interposed, either upon the ground of the insufficiency of the complaint, or of a defect of parties, it must have been overruled.

The observations that have been made, render it unnecessary to consider more particularly the question, whether the decision of the referee is a just conclusion of law, from the facts which he has found. He has found in favor of the plaintiffs all the material facts alleged in the complaint and put at issue by the answer, and of this finding, his decision, that the plaintiff was entitled to judgment, was a necessary result. We have already said that this finding was amply justified by the evidence before him, and we now add, that in our opinion, the proof was conclusive that the defendant had procured an adjustment to be made, the validity of which he had admitted, and by the payments he had made under it, was estopped from denying.

We all think that the demand of the plaintiffs for their proportionate share of the fund received by the defendant ought not to have been resisted, and that if there are any errors in the report of the referee, the errors are in favor of the defendant. It is very doubtful, taking into view all the circumstances of the case, whether he ought to have been allowed the commissions which the referee has deducted, and whether he ought not to have been charged with interest for a longer period than that for which it appears to have been computed.

The judgment upon the report is affirmed, with costs.


source: Caselaw Access Project

author: By the Court. Slosson, J.

license: Public Domain

text:
    Robert C. Voorhies v. William H. Anthon.
    The defendant and two associates, owners of houses and lots on 21st street, entered into an agreement with the plaintiff, by which they severally bound themselves to pay to him the sum of $200, in consideration of his erecting on certain lots in the rear of those owned by themselves, three or more dwelling-houses, covering the entire front of his lots, of such character and description as to be ineligible for tenement-houses, or for any trade or occupation likely to be offensive or injurious to them. He erected four dwelling-houses, covering the entire front of Ids lots, but one of them was constructed with a carriage-way or passage, unconnected with the house, but opening on the street, and leading to the rear of the lot, so that stables or other buildings might have been erected, having a common entrance and exit by the carriage-way, on the rear of each lot.

      Held, that as the manifest object of the defendant and his associates was to prevent the erection on the plaintiff's lots of any building that might operate as a nuisance to themselves, and as the opening of the carriage-way would enable the plaintiff to erect such buildings, should he deem it expedient, it was a breach of the spirit and intention of his agreement, and, therefore, a bar to his recovery of the sum which the defendant had stipulated to pay.
    Verdict for plaintiff set aside, and order granting a new trial affirmed, with.costs.
    (Before Dues, Bosworth and Siosson, J.J.)
    Heard, October;
    decided, December, 1855.
    Appeal by the plaintiff from an order at Special Term, setting aside a verdict for the plaintiff, and granting a new trial.
    The action was brought to recover the sum of $200, with interest, which the plaintiff alleged to be due to him from the defendant, under the following agreement, which is set forth in the complaint, and was read in evidence on the trial.
    This agreement, made this seventh day of March, one thousand eight hundred and fifty-four, between William H. Elphinstone, James B. Colgate, and William Henry Anthon, parties of the first part, and Robert C. Voorhies, party of the second part, witnesseth:
    Whereas the parties of the first part are the owners of the premises numbers one hundred and twelve, one hundred and fourteen and one hundred and sixteen East Twenty-first street, in the city of New York, respectively.
    And whereas, it is important to the said parties of the first part that the lots immediately in the rear of said premises, and also the lot adjoining said rear lots on the west, should be improved as speedily as possible, by the erection thereon of genteel dwellingnouses, equal, in point of appearance, to the said premises so occupied by said parties of the first part, of brick or stone, as the party of the second part may elect, and that said dwelling-houses shall be of such class and character as to command genteel and respectable tenants.
    Now, then, know all men by these presents: That the party of the second part, for the consideration hereinafter mentioned, hereby agrees with the parties of the first part to purchase the said lots so lying in the rear of the premises of the parties of the first part, and to erect thereon and upon the lot immediately adjoining said lots on the west, three or more dwelling-houses, covering the entire front of said lots, equal in point of appearance to the premises of the parties of the first part, and of such character and description as to be ineligible for tenement houses or for any trade or occupation likely to be offensive or injurious to the parties of the first part; such dwelling-houses to be constructed of brick or stone, as the party of the second part shall elect, and not to exceed sixty feet in depth.
    In consideration whereof, the parties of the first part, each for himself, and not one for the other, severally agree to pay the party of the second part the sum of two hundred dollars, when said buildings shall be enclosed, the above agreement to bind the heirs of the respective parties.

      In witness whereof, the parties to these presents have hereunto interchangeably set their hands and seals the day and year first above written.
    Wm. H. Elphinstone. [l. s.]
    Wk. Henby Anthon. [l. s.]
    James B. Colgate. [l. s.]
    . Robebt C. Voobhies. • [l. s.J
    The defence was, that the plaintiff had not performed the agreement.
    The cause was tried before the Chief Justice and a jury, in November, 1854.
    It was proved on the part of the plaintiff, that he had erected four first-class dwelling-houses on the lots mentioned in the agreement, and apparently covering the entire front of the lots, but it appeared, that on the most westerly of the lots, there was a covered carriage-way extending from the front to the rear of the lot, and that, as the buildings stood, stables might be erected on each lot, in the rear, and have a common entrance and exit by this carriage-way. It was proved, on the part of the defendant, that he and the other signers of the agreement, had given notice to the plaintiff, in writing, that they wordd consider this passage or alley-way to the street, as a breach of his agreement, and would hold him liable to them in damages, and' that the plaintiff had declared, that if the defendant and the other signers should refuse to pay him the stipulated sum, according to their agreement, he would put up a factory or some other building in the rear of the lots, to annoy them.
    The Judge left it to the jury, to determine whether the plaintiff had performed the agreement, and, according to its true meaning, had covered the entire front of the lots.
    The jury found a verdict for the plaintiff, for $200, and interest.
    Upon a case, the defendant moved for a new trial, at Special Term, on the ground that the verdict was contrary to law and evidence, and Mr. Justice Bosworth granted the motion.

      H. G. Be Forest, for the plaintiff,
    contended, that the order granting a new trial, ought to be reversed, and a judgment upon the verdict be entered for the plaintiff. The verdict was fully justified by the evidence.

      J. Anthon, for defendant,
    insisted, that it was immaterial whether the plaintiff had, or had not complied with the letter of his agreement, since he had plainly violated its spirit and intention, and that his threat, to erect a factory or some other building in the rear of the lots, to annoy the defendant and his associates, was conclusive proof that he was conscious, himself, that he had violated his covenant in its actual intention, even while he claimed to have performed it accurately to its letter. He cited, T. Raymond, 469; 6 John. 49; 2 Cow. 981; 22 Wend. 140.
   By the Court. Slosson, J.

In reading the covenant in question, especially in the light thrown upon it by the conversation between the plaintiff and Colgate, one of the parties to it, before the instrument was in fact executed, it is -not difficult to determine what were the motives which induced the parties to enter into the contract, and what was their real intention in so doing. The possible appropriation of the vacant lots to purposes which might prove an annoyance or injury to the premises on Twenty-first street, was the inducement or motive to the arrangement, and the prevention of such an appropriation was the object which the owners of those buildings (the parties to the agreement of the first part) intended to secure. They accordingly provided in their agreement with the plaintiff, that the vacant lots in ques-' tion when purchased by the plaintiff, and also the westerly lot adjoining, then owned by him, should be improved by the erection of buildings thereon, of a class equal, in appearance, to their own, and covering the entire front of the lots, and so constructed as to be ineligible for any trade or occupation likely to be offensive or injurious to their own property.

The instrument does not, in terms, designate any particular occupation as offensive or injurious, except tenement houses, but as that particular is followed by the general clause in question, it is manifest that the parties understood each other, as excluding all modes of occupation which would have the effect to injure the value of the property of the owners on 21st street—the buildings to be erected were not only, within the spirit and true meaning of the agreement, not to be built for such offensive purposes, but they were to be so constructed as to be ineligible” therefor; the instrument thus guarding, as much as possible, against the possibility of the appropriation of the premises to any such use.

It may even be conceded (though I do not so concede) that the covenant is complied with, on the part of the plaintiff, in so far as the stipulation to cover the entire front of the vacant lots is concerned, but this would not answer the whole condition of the Stipulation.

By constructing a carriage-way through the whole depth of the westerly building, leading from the street to the yard, the plaintiff has shown an intention to reserve to himself, and has, in fact, reserved to himself the power and facility of connecting with that building, as a means of its greater enjoyment, some other building, to be constructed in the rear; and that he himself considered the carriage-way as a means by which the premises might be converted into a nuisance, is evident, from the fact, that, when remonstrated with for having constructed it, he threatened, that, if the parties to the agreement did not pay him what they had stipulated, “he would put up a factory in the rear, or something else, to annoy them.” To say, in the face of this, that a building so constructed is “ ineligible for any occupation likely to be offensive or injurious” to the owners on 21st street, would be doing violence to the common sense of the whole agreement.

It was not, alone, the construction of buildings in themselves nuisances, which was intended to be guarded against, but the construction of buildings which could be converted into nuisances, or which could be used for purposes “likely” (in the language of the instrument) “ to be offensive or injurious.”

A covenant is not fulfilled, when its intent and spirit are broken, though complied with in the letter. (Com. Dig. Tit. Cov. E. 2; 2 Cowen, p. 786.)

The- obvious and palpable intention of the plaintiff, in constructing this carriage-way, from which there is no entrance into the dwelling-house, and which can only be entered itself from the outside, at either end, was to connect it, at some future time, with a stable, to be erected in the rear, and as an appurtenance to the dwelling-house. This would be, of itself, “ offensive” to the occupants of the houses in 21st street, and, consequently, injurious” to the property; but the plaintiff would not be restricted to this particular kind of annoyance, since the passage in question would furnish an equally convenient access to a factory, or other offensive establishment. True, he has not yet erected the nuisance, and may never do it, but he has reserved the means to do so, and has himself created the temptation, and manifested the intention to do it, at least to the extent-of erecting a stable in the rear.

Unless for some such object, the carriage-way would be utterly useless. As already said, there is no entrance into the dwelling-house from it; but it forms a clear and open passage, from front to rear, and is only to be entered from the outside of the building, at either end. Its object is too manifest to allow of a doubt, and we think the construction of this carriage-way a clear violation of the contract.

The order granting a new trial is affirmed, with costs.


author: By the Court. Duer, J. Hoffman, J.

text:
    Frederick Berley v. Adolph R. Rampacher and Margaret his wife.
    The act of the legislature of 1848, giving to every female, who might thereafter marry, all the real and personal estate owned by her at the time of the marriage, as her sole and separate property, did not operate as a repeal of the common-law rule, making the husband liable for all the debts of the wife contracted by her before the marriage.
    A statute is never construed as abolishing or modifying a rule of the common law, unless by express words, or necessary implication. The rule, if not plainly inconsistent with the statute, remains in force.
    The act of 1853, exempting the husband from his common-law liability, ought not to be construed as affecting the vested rights of creditors. So construed, it would be unconstitutional and void.

      Held, therefore, that the remedy of the plaintiff was not limited to the separate estate of the wife, but that he was entitled to a common-law judgment against both defendants.
    Judgment for plaintiff, accordingly, with costs.
    (Before Dues, Campbell and Hoffman, J.J.)
    Heard, December, 1855;
    decided, January, 1856.
    Appeal by plaintiff from a judgment at Special Term.
    The action was brought to recover the price of certain goods and merchandise, sold and delivered to the defendant Margaret, while a single woman. The complaint alleged that the debt was contracted in the city of New York, and became due on the 3d of October, 1850; and claimed judgment for its amount, $116r«-o, with interest from that day.
    The defendant Margaret consented, by her answer, that judgment shouldbe entered against her, and execution be issued thereon, according to the provisions of the act of the legislature, passed June 18th, 1853, entitled “An act relating to debts contracted by women before marriage.”
    The defendant Adolph averred, in his amended answer, that he intermarried with the defendant Margaret, on or about the 25th of October, 1850, in the city of Philadelphia, where he then resided, and continued to reside, until about the 1st of May, 1854, when he removed to the city of Few York. He denied that he had ever . received any of the goods mentioned in the complaint, or was indebted to the plaintiff, in any sum of money whatever, but consented that judgment shouldbe entered, according to the provisions of the above-mentioned act of 1853.
    The case came on to be tried at a Special Term, before Mr. Justice Slosson, on the 14th day of March, 1855, without a jury, a trial by jury having been waived by consent of parties.
    It was tried upon the pleadings, without evidence, the plaintiff, admitting the fact, stated in the amended answer of the defendant Adolph R. Rampaeher, that his marriage with the defendant Margaret was solemnized on the 21st October, 1850, in the city of Philadelphia, where he then resided, and that the defendants continued there to reside till May, 1854, when they became residents of the city of Few York.
    The said Justice thereupon decided, that the plaintiff was entitled to judgment, for the sum claimed in the complaint, with costs before answer, and disbursements, to bind the separate estate and property of the defendant Margaret Rampaeher, and not the property of the defendant Adolph Rampaeher; and that the execution upon such judgments issue against such separate estate and property of said Margaret Rampaeher, only, and not against the property of the defendant Adolph Rampaeher; and that the defendant Adolph Rampaeher have judgment for his costs, subsequent to the answer and execution therefor.
    The counsel for the plaintiff excepted to the decision, upon the ground, that the plaintiff was entitled, in law, to an absolute judgment, against both defendants.

      The cause was now heard upon a case containing the pleadings, judgment, and exception.

      iS. P. Nash, for the plaintiff, appellant.
    The liability of the husband for the debts of the wife, contracted by her, dum sola, is a necessary incident to the marriage contract, by common law; and hence, the defendant Adolph, by his marriage, on the 21st of October, 1850, became thus hable for the existing debts of the defendant Margaret, and the plaintiff had then a clear right of action against them both. The act of 1853, if construed retrospectively, would not merely impair a remedy, but would destroy a vested right, by discharging an existing personal liability. It is not necessary so to construe it, and if so construed, it would be unconstitutional and void. (Dash v.Van Kleeck, 9 John. 479; Wood v. Oakley, 11 Paige, 400; Morse v. Gould, 1 Kernan, 281; Bronson v. Kinsie, 1 How. U. S. R. 411; McCrackan v. Hayward, 2 id. 608.) The plaintiff is entitled to judgment against both defendants, with full costs. The offer, in the answer of the defendant Adolph, is not such as to entitle him to costs. (Code, § 304.)

      D. P. Whedon, for defendants.
    The only ground upon which the husband was liable at common law, for the debts of the wife contracted by her dum sola, was, that, by force of the marriage, he took all her personalty. The act of 1848, (Sess. Law, c. 200,) by giving to the wife all that she possesses at the time of the marriage, as her sole and separate property, destroyed this reason, and from that time the liability of the husband ceased, upon the maxim, that “ cessaníe ralione, cessat etiam ipsa lex,." (7 Rep. 69; Broom’s Maxims, 133.) The question, therefore, whether the act of 1853 has a retrospective effect, does not, necessarily, arise; but, if the court think otherwise, we contend that the act, thus construed, is constitutional and valid. It does not defeat or impair any vested right of creditors, but merely acts upon and qualifies their remedy. (Sturges v. Crowningshield, 4 Wheat. 122; Mason v. Hale, 12 id. 370; Smith v. Thomson, 22 Pick. 430; Stocking v. Hunt, 3 Denio, 274; Foot v. Morris, 12 Leg. Observer, 61.)

      The judgment at Special Term ought to be affirmed, with costs. It is the only judgment to which, upon the pleadings, the plaintiff can be entitled.
   By the Court. Duer, J.

If the rule of the common law, ' by which the husband is made liable for all the debts of the wife, contracted by her before the marriage, rested solely upon the transfer to him, which the marriage effects, of all the personal property of the wife, there would be great force in the argument, that the act of 1848, by preventing his acquisition of the property of the wife, has discharged him from his liability for her debts. The case, might then, not unreasonably, be held to fall within the purview of the very sensible maxim, that “ cessante ratione, cessat etiam lex.” But it is manifest, upon a very slight consideration of the authorities, that' the acquisition, by the husband, of the property of the wife, is not the sole foundation of his common law liability for her debts, although it may justly be urged, as mitigating, in some degree, the severity of the rule. His liability, Íit is certain, is absolute and unlimited, without any reference whatever to the property whicb/he acquires, or to which he may become entitled. It exists, even when the wife, at the time of the marriage, has no property at allypresent or fixture, or when all that she then possesses, or to which she may become entitled, is settled to her sole and separate use. We cannot, therefore, say that the fact, or extent, of his liability, is at all affected by the provisions of the act of 1848. There is no more reason for saying, ■ that a settlement,- by a general law, of the property of the wife, to her separate use, can operate to discharge the husband from the payment of her debts, than a settlement of the same character, made by a husband or parent, before the marriage, by a devise or ante-nuptial contract. In both cases, the continued liability of the husband is entirely consistent with the legal effect of the settlement.

It is possible, and, perhaps, not improbable, that the legislature, in depriving the husband of that interest in the property of his wife, which the common law gave to him, meant to exonerate him from her debts, but we can deduce no such intention from the words, or the provisions, of the act of 1848; and it is needless to cite authorities, to show that it is only by express words, or by a necessary implication, that a legislative enactment can operate, as a repeal or alteration of an established rule of the common law. That there are express words of repeal, in the act of 1848, is not pretended, and it is just as certain, that it contains no provisions from which the intention to repeal must necessarily be implied.We must, therefore, hold, that the defendant, Adolph, became a debtor to the plaintiff, when he intermarried with the defendant Margaret, and that he was such debtor when the act of 1853 was passed. Has that act discharged him from this liability ? The act provides, that an action may be maintained against husband and wife, jointly, for a debt of the wife, contracted before marriage, but that execution on any judgment in such action, shall only issue against, and the judgment shall only bind, the separate estate of the wife; and it is contended, that these provisions are clearly applicable to the case before us, and made it the duty of the Judge, at Special Term, to render the exact judgment that he has given, and which it is, therefore, our duty to affirm.

It is manifest, however, that we cannot so decide, without giving to the provisions of the act in question, a retrospective operation ; nor, without holding, that the act thus construed, was a valid exercise of legislative power. We can do neither.

If the words of the act are not to be limited to marriages thereafter to be contracted, but must be construed as applicable also to those before contracted, and then existing, it is certain, and is not denied, that they would be retroactive, in .their operation, upon preexisting debts, and rights of action; but, we apprehend, that we cannot give such a construction to the act, without a denial of principles that have long been settled, and from which, we trust, that no court of justice would willingly depart. The plaintiff, in the case before us, when the act of 1853 was passed, had a vested right of action against both the defendants. The husband, as well as the wife, was then his debtor, and the property and estate of the husband would have been bound by the judgment he was then entitled to obtain. If the defence that is relied on, is allowed to prevail, and the plaintiff is to be deprived of the judgment that he claims, it is clear, that the act of 1853 has not merely interfered with, but has taken away and annulled his vested rights. We hold, that we have no right to give such a construction to the act, unless it is forced upon us by the words that are used. We have no right to adopt the construction, if there is any other more reasonable and just, of which the words are susceptible.

The leading, and much debated case of Dash v. Van Kleeck, qualified and explained by subsequent decisions, has established the rule, that no enactment, however positive in its terms, is to be construed as designed to interfere with existing contracts, rights of action, or suits, unless the intention, that it shall so operate, is expressly declared. Although the words of the statute are so general and broad, as in their literal extent; to comprehend existing cases, they must yet be construed as applicable only to such as may thereafter arise, unless the intention to embrace all, is plainly and unequivocally expressed. (Dash v. Van Kleeck, 7 John. 499; Butler v. Palmer, 1 Hill, 325; Johnson v. Burril, 2 Hill, 238; Wood v. Oakley, 11 Paige, 403; vide also as to the rule in England, Torrington v. Hargreave, 5 Bing. 489.) It cannot be denied, that the general words of the act of 1853, are susceptible of the construction for which the defendants contend, but there is no pretence for the assertion, that they contain a declaration, that this construction shall be given to them. The general rule, therefore, as to the construction of statutes, must control our decision, that the act in question was designed to operate prospectively and prospectively alone, and, consequently, that the legal rights of the plaintiff were not affected by its provisions.

But we shall not stop here. Had the act of 1853 declared in terms that its provisions should be construed to apply to existing debts, or were we bound to give that construction to its provisions, as they stand, we should then be constrained to hold, and would have no difficulty in holding, that the act, so far as sanctioning that construction, would be inoperative and void. Hot void, as repugnant to one of the' plainest rules of natural justice, but as repugnant to a vital provision, adopting and consecrating that rule, in the constitution of the state.

If the act of 1853 is to be construed, as releasing the defendant Adolph, from his personal liability as a debtor to the plaintiff, it is plain, that it would operate, in respect to the plaintiff, not as a limitation of his remedies as a creditor, but as the confiscation of a debt; of a debt which, as then due, he had an immediate right to recover; and, it seems to us equally clear, that the act, thus construed, would involve a direct violation of that provision in the constitution which declares, that “ no person shall be deprived of life, liberty, or property, without due process of law.” Upon this question, we regard the decision of the Court of Appeals in the recent case of Westervelt v. Gregg, (2 Kernan, 202,) as a controlling authority, for, as we read that decision, it has settled the law, that an immediate right of action, for the recovery of a debt, is property, within the meaning and protection of the constitution. In delivering his judgment in that case, Mr. Justice Denio expressed himself as follows: “An immediate right of action, for the recovery of money, which, when recovered, is to belong to the party in whom the right of action exists, subject to be defeated only by the contingency that a person in being may die before a judgment can be obtained, is a valuable pecuniary interest, which deserves protection equally with rights, which are absolute and unconditional.” It was upon the truth of this proposition that the judgment of the Court of Appeals was founded, and it cannot be denied, that its terms embrace, just as certainly and as fully, the case before us, as that which was the subject of the decision.

For these reasons, all the Judges of this court—for, considering the importance of the question, we have felt it our duty to consult them all—concur in the opinion, that the judgment at Special Term, following the provisions of the act of 1853, was erroneous, and that the plaintiff is entitled to a judgment against both the* defendants, for the amount of the debt that their answers, in effect, admit to be due, together with interest and costs, according to the prayer of his complaint.

The judgment appealed from is, therefore, reversed, and as the questions involved arise upon the pleadings alone, and cannot be varied by a new trial, a final judgment for the plaintiff, such as has been stated, must now be entered.

Hoffman, J.

It is insisted that the plaintiff has a right to a judgment against the husband as well as the wife.

It is not denied that, but for the statutes of this state, he would have such a right. The common law made him responsible for the wife’s debts incurred dum sola, whether he received property with her, or not. Yet if he was not sued before her death, he was discharged, whatever amount he may have received. (2 Kent’s Com. 144.)

In compensation for this liability, the common law gave the husband all the wife’s personal property, or the power to acquire it; and likewise gave him all her subsequent acquisitions, by her own labor, or from the gift of others, unless they were expressly guarded from him.

The act of 1848, (ch. 200, § 1,) provided, that the real and personal estate of any female who might thereafter marry, and which she should own at the time of the marriage, should not be subject to the disposal of the husband, nor liable for his debts, and should continue her sole and separate property, as if she were a single female.

The third section of the same act enabled the married woman to take by inheritance, or by gift, grant, devise, or bequest, real and personal property; and to hold the same to her sole and separate use, and to convey and devise the same as if she were Angle, and the same should not be subject to the disposal of the husband, nor liable for his debts.

The effect of this statute upon the relations of the husband and wife, in this case, was, that he had no right to the property she possessed, or was entitled to, in October, 1850; nor to any which might be given to his wife during the marriage.

It deserves notice, that in the second section of the act, is a provision as to the property of women married at its passage. It is declared that her property shall be her sole and separate estate, as if she were single, except so far as the same may be liable for the debts of her husband heretofore (before the date of the act) contracted.

This act and the amended act, passed in 1849, (ch. 876,) were silent as to the continuance of the husband’s common law responsibility for his wife’s debts.

But the statute of July 18, 1858, (ch. 576,) provided that an action may be maintained against the husband and wife jointly, for the debt of the wife, contracted before marriage; but the execution on any judgment in such action, shall issue against, and such judgment shall bind the separate estate and property of the wife only, and not that of the husband.

By the second section, any husband who might thereafter acquire the separate property of his wife, or any portion of it, by any ante-nuptial contract, or otherwise, should be liable for the debts of Ms wife, contracted before marriage, to the extent only of the property so acquired, as if that act had not been passed.

The first question is, whether a case like this, of a debt and marriage contracted before the act, is covered by its language and fair import ? And I tMnk it is.

~ The language of the first section is without any qualification whatever. It may comprehend, and, grammatically, does comprehend, a case of the debt contracted before the act, as well as the marriage; a case of debt prior and marriage subsequent; or of both being subsequent.

The second section forms an exception to the first, and shows how the term husband is used in the first. Any husband who may hereafter acquire the separate property of the wife, shall be responsible for the debts contracted before marriage, to the extent only of the property so acqmred.

I apprehend that the term husband comprises persons who were husbands at the date of the act, obtaining such property, for example, on the 19th of July, 1853.

I tMnk also, that it is reasonable to suppose the legislature, in the act of 1853, (apprised that in the act of 1848 they had prevented the husband from taMng existmg property, or future acqmsitions,) may have considered it an act of equity to exempt Mm from a general liability, and to adjust such responsibility by the measure of the property he might obtain.

On tMs assumption, then, the question is, whether the act is constitutional in its application to the present case?

On the 9th of October, 1850, when the goods were sold, the plaintiff had a right to look to the party with whom he contracted, for payment, to be obtained by the usual remedies. He had also knowledge of the fact, that as the law then stood, he should have the personal responsibility of any future husband, unless between the date of the sale and the marriage, a law might exempt such husband. On the 21st of October, 1850, he became entitled to that personal obligation. The act of 1853 divests him of it.

In considering the legal relation established between the parties by the marriage, it ought not to be overlooked, that the plaintiff was bound to know that the legislature had refused to allow the husband to take the wife’s property. On the other hand, he was entitled to the benefit of the rule, that the husband was responsible, irrespective of any acquisition of property.

I do not think that the cases referred to, under the constitution of the United States, forbidding laws impairing the obligations of contracts, are as pertinent to the present as the cases upon retrospective laws, affecting existing rights, and interpreting the clause of our own constitution, that no one shall be deprived of property without due process of law.

The late case of Westervelt v. Gregg, in the Court of Appeals, (2 Kernan, 202,) is of the highest importance upon this subject. In 1840, a legacy vested in the wife of the defendant, under the will of her father. In 1846, a petition was presented to the surrogate for an account and payment of the legacy. In September, 1849, the surrogate settled the accounts, reserving the question to whom the legacy should be paid; and in November, 1849, after argument, he decreed payment to the husband. This being affirmed by the Supreme Court, an appeal was taken to the Court of Appeals.

The following points are deducible from the judgment:

That the husband, at the passage of the act of 1848, was entitled to prosecute for the legacy, and to take the money when recovered, to his own use; he had a right to assign it for valuable consideration, which would cut off the wife’s right to it, in the event of survivorship. If he survived the wife, it would belong to him absolutely. It was only in case of his death first, and before possession taken, that she would take it.

That the second section of the act of 1848, upon its proper construction, did operate to take away this right from the husband.

That the right to recover the legacy was property. “An immediate right of action for the recovery of money, which, when recovered, is to belong to the party in whom the right of action exists, (subject only to the contingency of his death before judgment,) is a valuable pecuniary interest,” and is protected by the constitution as property.

That the act of the legislature was, in this respect, therefore, void.

After a careful consideration, I am unable to discern a valid ground of distinction between this case and the present. The plaintiff acquired a right to resort, for recovery of his demand, to the property of the husband. In depriving him of this, the statute robs him of a substantial right to look to that property for his satisfaction. This is not a restriction of the extent of a remedy, which might, under circumstances, be valid, as in the furniture exemption act. (See Morse v. Goold, 1 Kernan, 283.) There is the actual withdrawal of a fund, to which the law had given him authority to have recourse, and, besides this, is the deprivation of the advantage of a personal responsibility which would arise Rom a judgment, independent of existing property.

In the case of Foot v. Morris, (12 Legal Observer, 61,) I had, in a case at Special Term, arrived, doubtingly, at a different result; and I expressed a hope that, as the case was new, it might be put in a way of revision.

I am now satisfied that my conclusion was wrong. I think too much effect was given to the act of 1848.

In our opinion, the judgment below should be reversed, and judgment be entered against both defendants, with costs, in the usual form.


author: By the Court. Bosworth, J.

text:
    Weed and Wife v. The Panama Railroad Company.
    A passenger carrier is, by law, under an obligation to provide for the safe conveyance of the passengers, as far as human care and foresight can secure that result.
    For injuries caused to a passenger by the misconduct of the carrier’s agent, in his mode of running the cars and managing the train confided to his care and control, the carrier is liable.
    The fact that such misconduct did not result merely from the inattention or misjudgment of the agent, but from a deliberate and conscious disregard of duty, and of his orders, and was, therefore, wilful, does not exempt the carrier from liability to the passenger whom he had undertaken to carry, and who is injured by such misconduct.
    (Before Bosworth and Woodruff, J.J.)
    January, 1856.
    This action came before the court on a verdict taken for the plaintiffs, subject to the opinion of the court at General Term. It was tried before Ch. J. Oakley and a jury, in March, 1855.
    It was brought to recover damages, sustained by Mrs. Weed, one of the plaintiffs, while a passenger in the cars of the defendants, in consequence of the cars being left all night at a place between Obispo and Aspinwall. It was alleged in the complaint, that the place of detention was low, wet, and swampy, in the midst of a forest, remote many miles from any habitation, and without any building for the protection of persons thereat.
    That the atmosphere at that place was exceedingly unwholesome, so much so as to produce disease, when persons are there exposed several hours. That it rained continually during the detention. That the delay was without any reasonable or justifiable cause, and that the plaintiff was obliged to sit or stand in the cars the whole night, without light, food, or water. That the plaintiff became sick by reason of the unwholesomeness of the place, and suffered great pain, so that her life was despaired of, and she has suffered greatly in body and mind, from that time to the commencement of this action.
    The answer put the allegations of the complaint at issue.
    Several witnesses were examined at the trial.
    When both parties had rested, the counsel for the defendants moved to dismiss the complaint, on the ground, that there was no proof of any contract between the plaintiffs and defendants; but the court overruled the motion, on the ground, that the duty of the defendants, in carrying the plaintiffs arose out of permitting them to travel in the train as passengers: to which decision, the counsel for defendants excepted.
    The defendants’ counsel also moved to dismiss the complaint, on the ground, that there was no proof, either of wilful misconduct or negligence, on the part of defendants or their agents; but the court overruled the motion, to which decision the counsel for defendants excepted. The counsel then summed up to the jury. The plaintiffs’ counsel insisted that the evidence established that the conductor designedly left the train, at Barbacoas switch, having that intention wheh he left Obispo, and that, for this reason, exemplary damages might be given.
    When he had concluded his remarks, the presiding Judge inquired whether he meant to put his case On the ground he had advanced, viz.: that the conductor wilfully misconducted himself, in arresting the train and leaving it.
    To which plaintiffs’ counsel answered, that he claimed damages on both grounds, wilful misconduct and negligence.

      Thereupon, the counsel for the defendants aslced the court to charge the jury, that if the conductor acted wilfully in the detaining of the train, the defendants were not liable for that, as there was no evidence that they authorized or approved such misconduct.
    The presiding Judge directed the jury to answer the following questions, which were submitted to them, in writing:—

      First. Was the detention at the Barbacoas station, by the conductor of the defendants, a wilful act of the conductor?

      Second. In detaining the train, as he did there, did the conductor act negligently, or without reasonable care and judgment?
    The jury answered each of these questions in the affirmative, and assessed the damages of the plaintiff at two thousand dollars.
    Thereupon, the presiding Judge directed that proceedings should be stayed, on such verdict, and a case made to be heard at the General Term, in the first instance, as to what judgment, if any, should be rendered on such verdict, with liberty to either party, after a decision at such term, to turn the case into a bill of exceptions, as if the decision of the General Term had been the charge of the court at the trial, and exceptions had then been taken to it.

      A. J. Willard, for plaintiffs.

      Jas. T. Brady, for defendant.
   By the Court. Bosworth, J.

The jury have found, that the detention of the cars, between Obispo and Aspinwall, by the conductor of the defendants, was—first, “ a wilful act of the conductor second, that, in detaining the train as he did, the conductor acted “ negligently, or without reasonable care and judgment.”

The inquiry, whether the act was a wilful act, the jury must have understood to have been an inquiry whether it was done, knowing that it was a violation of his duty, and conscious that there was, not only no necessity for it, but that it was without any thing existing to excuse it. Understanding the jury to have found, that the act, of stopping and leaving the train over night, was such an act of wilful misconduct, the question arises, Is the defendant liable for the damages resulting to Mrs. Weed?

In Vanderbilt v. The Richmond Turnpike Co., (2d Coms. 479,) the Court of Appeals decided, that a corporation is not liable for a wilful trespass upon a stranger, committed by a person employed by it, although the act be authorized by its president and general agent. In that case, the defendant’s boat was designedly run against the plaintiff’s boat, by the agent of the defendant. That act was a wilful trespass. The action was brought to recover damages for the injury resulting from it. It was held, that, for such an act of the agent, the corporation was not liable.

What rule should have been applied, if a passenger on the defendant’s boat had been injured, by such misconduct, and an action to recover damages had been brought by him, was not stated, nor was any opinion intimated by the court. In the case cited, the defendant owed no duty to the plaintiff, except such as each citizen owes to every other.

In the case at bar, the defendant owed to each of the plaintiffs such duties as the law imposes upon common-carriers of passengers, in respect to persons whom they undertake to carry from point to point, upon the route on which their business is conducted.

The conductor, as the agent of the defendant, had charge of the train. Its movements, under the rules and regulations of the company, were confided to him. In leaving the train where he did, he was acting in the course of his employment. He was as clearly so acting, as in moving forward the train to the place at which it was left. The cars, and the passengers on board of them, were intrusted to his care and control.

Whether he left them where he did, in known disobedience of the general regulations, or of a special order of the company, cannot affect the question of the actual liability of the company. (Phil. and Reading Railroad Co. v. Derby, 14 How. (U. S.) S. C. R. 468.)

Ho case has been cited, nor has any come to our notice, which decides that a carrier of passengers is not liable to the latter for injuries resulting from the wilful misconduct of the carrier’s agent, in his mode of managing the vehicle containing the passengers.

Wright v. Wilcox (19 Wend. 343) was not an action by a passenger against a carrier of passengers, but is the ordinary case of a suit by a third person, to whom the defendant owed no special duty, to recover for a wilful injury done by defendant’s servant, while driving the defendant's carriage. It did not involve the question, of the nature or extent of the liability of a passenger-carrier, for injuries to his passengers, resulting from the wilful misconduct of the servant, in the manner of transacting the business of the carrier.

The law imposes, upon the carrier of passengers, the duty of providing for their safe conveyance, as far as human care and foresight can secure that result.

He is bound for a due application, on the part of his servants, of the necessary attention, art and skill.

In Stokes v. Saltenstall, (13 Peters (U. S.) R. 181-191,) the court stated, as a sound principle, that, although a carrier of passengers does not warrant the safety of the passengers, at all events, yet his undertaking and liability to them, go to this extent: that he, or his agent, if, as in this case, he acts by agent, shall possess competent skill; and that, as far as human care and foresight can go, he will transport them safely.”

If he is under an obligation, or duty, that his agent shall employ the highest degree of care and foresight, for the safe conveyance of the passengers, is not the failure to discharge the obligation, or perform the duty, as absolute, when it results from intentional mismanagement, as when it is caused by slight or gross inattention of the agent ?

The case of the Phila. and Reading Railroad Co. v. Derby, decides, that the carrier is not exonerated from liability, merely because the agent acted in disobedience of the positive orders of the principal. In that case, the defendant requested the Judge, at the trial, to charge the jury: “that the employer is not responsible for the wilful act of his servant.” (Id. 470.) The Judge charged, “ that, though the master is not liable for the wilful act of his servant, not done in the course of his employment as servant, yet, if the servant disobeys an order relating to his business, and injury results from that disobedience, the master is hable, for it is his duty to select servants who will obey. The disobedience, in this case, is the ipsa negligentia, for it is not pretended by the defendants that the Lycoming was intentionally driven against the Ariel.”

The latter remark may be thought to imply an opinion, that if the disobedient servant intentionally drove his locomotive against the one by which the defendant was drawn, the defendant would not be liable to any passenger on either train, for the iryuri.es which might result to him from such an act.

As to this, it is sufficient to say, that the Judge did not declare such to be the rule, nor does the opinion of the court sanction it.

Passengers are not unfrequently injured by the improper position in which a switch is left, or by a train being started forward on a single track, when a train is overdue from the opposite direction. Do the rights of injured passengers, in such cases, depend upon the question, whether the switch was left out of place, or the train started prematurely, in consequence of the mere inattention of the agent of the company ?

Is it settled law, that if the act resulted from negligence, the carrier is liable, but is not liable if the act was one of intentional dereliction from duty, and done with knowledge that the passengers were thereby exposed to new and great hazards ?

If wilful misconduct of the agent of a passenger carrier, in the mode of transacting the business of the principal, will exonerate the latter from all liability to the passengers for the injuries they may receive from such miscoduct, then what is the true limitation of the rule ?

If, in this case, the act of wilful misconduct, resulted from feelings of hostility to one of the two lines of steamers running between Aspinwall and New York, and if done to diminish its chances of obtaining the carrying to New York any of the passengers in that train, would the defendant be absolved from liability ?

If the motive, which produced the act, was devoid of ill-will towards the passengers, and contemplated no injury to them, beyond the mere inconvenience of being in the cars all night, while the conductor was comfortably lodged at Obispo, and in order that he might be so lodged, is the defendant exempt from liability?

If the motive was ill-will towards the passengers, and the act was done from a deliberate and perverse purpose, to expose them, to the danger of contracting disease, either from such exposure in a rainy night, or from the unhealthiness of the spot in which the cars were left, is the defendant without liability for the act? And must the motive be such as last supposed; that is, ill-will towards, or a purpose to hazard the safety of the passengers, in order to exonerate the defendant from all liability for the acts of its agents ?

It would be in the highest degree, detrimental to the public safety, to establish the rule, that passenger carriers are not liable for injuries caused to their passengers, by the deliberate and intentional misconduct of the carrier’s agent, in the mode of conducting the business of the principal.

Every known disobedience of a general regulation, or special order of a railroad company, may properly be denominated wilful misconduct. In most cases, the agent so disobeying, is conscious at the time, that he is exposing the passengers to greater, and often, to imminent hazards.

In such cases, the carrier has failed to perform the duty of doing all that human care and foresight could do for the safety of the passengers. By a statute of this state, a carrier of passengers, who conveys passengers upon any turnpike road or public highway, is liable to the party injured, in all cases, for all injuries and damages done by any person in his employment, while driving the carriage of the carrier, whether the act be wilful or negligent, or otherwise, in the same manner as such driver would be liable. (1 R. S. 696, sections 6 and 7.)

This act, by its terms, relates only to carriers of passengers, upon turnpike roads or the public highway. Its existence, however, illustrates the rule, which public policy, in the view of it entertained by this state, requires should be enforced. That act makes the passenger carrier, to whom it relates, liable, not only to his passengers, but to all others, for any injury of the agent, while driving the carriage of his principal, and as well when his misconduct is wilful, as when it is merely negligent. These defendants were incorporated by the legislature of this state.

There is nothing, in any adjudged case, nor in the nature and extent of the duty which the carrier owes to his passengers, nor in the principles of public policy, acted upon in this state, sanctioning the principle, that a railroad company is not liable to its passengers for the wilful misconduct of its agent, in his mode of running the cars confided to his care and control.

A carrier of merchandise is responsible for any injury to it, caused by the wilful trespass of his servants, during its transportation.

Can any reason be assigned, why the liability of a passenger carrier should not be the same, in respect to any injury to the person of the passenger, caused by the servant of the carrier, in the course of his employment as such, or while the passengers are subjected to his care and direction, for the purpose of being conveyed to their destination ?

Passengers being sentient beings, capable of, and at times, determined upon locomotion, while the cars are running, them own negligence or rash conduct, in some instances, may contribute as much to a casualty which injures them, as the negligence of the carrier or of his agents.

But when a passenger, in the course of Ms passage, is injured solely by the act of a servant, to whose care and control the passengers, and the cars containing them, are confided, and under circumstances making it impossible, by the exercise of any discretion on the part of the passengers, either to prevent the wrongful act, or to mitigate its injurious consequences, why should the carrier be exonerated, on the ground of the wilful or malevolent purpose of his agent, when Ms liability would be unquestionable, if the injury had been to property, instead of persons ?

But it is not necessary to apply so stringent a rule of liability, to entitle the plaintiffs to a judgment on the verdict.

I d.o not think, that the form of the verdict necessarily affirms, that the conductor stopped and left the train where, and as he did, from a design to injure the passengers, or believing that either of them would contract any disease in consequence of it. No such position appears to have been taken at the trial, and, therefore, no such fact is necessarily affirmed by the verdict. It was insisted at the trial, that the conductor designedly left the train at the Barbacoas switch, having that intention when he left Obispo.

The verdict undoubtedly finds, that the act did not result from mere misjudgment, or negligence in not informing himself as to the condition of the road, and that the train could be safely passed over it that night.

It does not necessarily affirm more, than that he deliberately disobeyed the orders of the company, or consciously and perversely disregarded Ms duty, for the mere purpose of consulting his own ease and comfort for the night, regardless of that of the passengers.

We do not think, that any consideration of public policy, or the proper application of any well settled rule of law, justifies us in holding, that the defendant is not liable to a passenger for the injuries caused by such misconduct.

The only question left, relates to the damages. What rule of damages was given by the court to the jury is not disclosed by the case. Whatever it was, no exception appears to have been taken to it. The plaintiffs’ counsel insisted that exemplary damages might be given, if the conductor wilfully misconducted himself in leaving the train at the Barbacoas switch. The defendants’ counsel insisted that there was no liability on the part of the corporation, if that fact should be found by the jury. There is nothing in the case from which it can be inferred that the court instructed the jury, that in their discretion they might find exemplary damages, in case they also found the fact of wilful misconduct, but could not, if they found his conduct to be merely negligent.

There is, therefore, not only no exception to any ruling of the Judge at the trial, in respect to this matter, but there is nothing to show what instruction was given. The only inference that can be drawn is, either that the Judge told the jury, that whether they found the act to be one of negligence, or of wilful misconduct, the rule of damages was the same, and that no heavier damages could be given in the latter case than in the former, or that he submitted the special questions with such remarks as were satisfactory to the defendants’ counsel, or that the jury were left, by common consent, to assess the damages at such amount as they might deem to be just.

A new trial cannot be granted, therefore, on account of any erroneous instruction to the jury, in relation to the damages. We are not asked to grant it on account of excessiveness of damages. No point was taken at the trial, or on the argument of the appeal, that damages were asked, or have been given, for any cause besides the injuries to, and sufferings of, Mrs. Weed.

Judgment should be entered for the plaintiffs on the verdict.


author: By the Court. Woodruff, J.

text:
    Hunt v. Bloomer and wife.
    In a suit brought to foreclose a mortgage given to secure the payment of a bond conditioned for the payment of a sum of money on a specified day, parol evidence is inadmissible to show that at the time of the delivery of the bond and mortgage there was a verbal agreement that the money should not be due until a later day.
    The bond was payable on the 17th day of May, 1865, with interest, payable half-yearly, and the money loaned by the plaintiff was advanced on the 22d of May, 1854, and it was conceded that on the l7tb of May, 1855, full six months’ interest was paid. In such case, it will be presumed that a proper adjustment was made, on the payment of the interest for the first six months, (in August, 1854,) by an allowance for the five days, and in the absence of any proof, in relation to such previous payment, the court will not presume that the interest paid on the 17th of May, 1855, was more than was then due.
    Payment by a debtor of a part of a sum of money, which is actually due and payable, is no consideration for an agreement by the creditor to forbear or give time for the payment of the residue.
    An agreement by the creditor to give further time for the payment of a sum already due, in consideration of the debtor’s agreement to pay more than legal interest, is binding upon neither party.
    (Before Bosworth and Woodruff, J.J.)
    January, 1856.
    Appeal from a judgment directing the sale of mortgaged premises.
    The cause was heard before Duer, J., at Special Term, upon the pleadings alone, of which the substance is as follows:—
    The complaint, filed on or about the 31st May, 1855, prays for the foreclosure of a mortgage, executed and delivered on the 22d day of May, 1854, to secure the payment of the defendants’ bond, which, by the terms of the condition thereof, is payable on the 17th day of May, 1855, with interest in the mean time, payable half-yearly. The defendants answer—
    That the bond and mortgage were given by the defendant Bloomer, to secure the repayment of a sum loaned to him by the plaintiff. That it was the understanding and agreement between them, that the said loan should be for one year, and that the principal sum named in the bond should not be due or payable before the expiration of one year from the time when the same, (that is the money,) was delivered to the said Bloomer, and that if the day of payment is as alleged in the complaint, (i. e., May 17th, 1855,) it is wrongfully so, and should be the 22d day of May, 1855.
    The answer then further alleges, that on the 17th day of May, 1855, the plaintiff “ agreed with the said Bloomer, that in consideration that he would then pay six months’ interest upon the principal, being the interest that would be due May 22d, 1855, and the sum of five hundred dollars of and upon the principal; the time for the payment of the balance of the principal should be extended to the 10th day of August, 1855.” And in pursuance of said agreement, Bloomer did pay the sum of $140, the interest on the principal sum that would be due on the 22d day of May, 1855, and five hundred dollars upon the principal, by reason whereof, the defendants insist that the balance of the principal is not due until August, 1855, and that this suit is, therefore, prematurely brought.
    On the trial, the plaintiff, as stated in the case, waived all evidence of the defence, and moved the cause upon the complaint and answer and the bond and mortgage referred to, on the ground that the answer, if proved, would constitute no defence. And, thereupon, judgment for the plaintiff was ordered at Special Term.
    Moody, for defendants, appellant.

      R. E. Mount, for plaintiff
   By the Court. Woodruff, J.

The question argued before us was, whether the agreement set up in the answer, under the circumstances therein alleged, operated to extend the time for the payment of the bond and mortgage to the 10th of August, 1855; and it seems to be conceded by the plaintiff’s counsel, that if we are of opinion that the agreement was valid and operative for that purpose, we ought to reverse the judgment.

It is important to observe further, that, although the case does not so state, it was conceded on the argument, that the understandings and agreements mentioned in the answer, (and of which proof on the trial was waived by the plaintiff,) were by parol merely, and not under seal, nor even in writing.

The cause was heard and decided upon "that assumption and concession, and so as to embrace the inquiry, whether it would be competent to prove such agreements by parol, as well as whether, if proved, they could operate to affect the plaintiff’s right to a judgment.

I observe then, first, that the bond and mortgage must be deemed payable on the 17th day of May, 1855. The alleged understanding and agreement that the loan should continue for one full year, cannot be permitted to control the terms of the instruments ; these must be taken as conclusive of the actual agreement made at the time of execution and delivery thereof. And it is not insisted that the case exhibits any mistake upon which, under the pleadings herein, any reformation of this instrument is called for.

In this particular, the defendants’ answer, and the points argued by their counsel are not quite harmonious. The answer insists, that by reason of the understanding, the day of payment is, or ought to be, the 22d day of May; and that the interest paid on the 17th of May was interest which “ would be due on the 22d day of May,” and makes the payment of the five hundred dollars of principal money, and the payment of this interest five days before either were, in fact, due, the consideration upon which the plaintiff agreed to extend the time for the payment of the residue.

The defendants’ counsel, however, in his points and argument concedes, and not only concedes but claims, that the day of payment named in the condition of the bond and mortgage, must control, and that for all the purposes of this appeal, the principal and interest must be deemed to have been due on the 17th day of May, and he thereupon insists, that on that day one fall year from the making of the loan, and the delivery of the bond and mortgage had not elapsed, and, therefore, that one hundred and forty dollars of interest money was not then payable, the period during which interest had been accruing lacking just five days of six months; and that the payment of $140, on the 17th of May, when less than six months’ interest had accrued, was the consideration for the plaintiff’s agreement to extend the time of payment of the bond and mortgage to the 10th of August.

Two questions are suggested as involved in the defendants’ claim.

First. "Would a parol agreement, in consideration of the receipt of the alleged excess over the interest, operate to extend the time of payment of the bond and mortgage ? for, confessedly, a payment on account of the principal then due would have been no consideration for such an agreement.

Second. Does it appear by the complaint and answer that the payment of the $140 on the 17th day of May, was a payment of more than was due, so as to constitute a consideration for a valid agreement to forbear ?

It does not appear by the case before us, in any manner, that any other sum had been paid by the defendant Bloomer, for interest, since the making of the bond which the answer avers bears date the 17th day of May, 1854, (though the money was not advanced until the 22d.) It is suggested, that we may infer that at the end of six months the defendants paid six months’ interest; and if so, that something less than six months’ further interest had accrued on the 17th of May following. We ought not, perhaps, on such an appeal, to indulge in any mere conjecture regarding the facts, but it seems quite as probable that six months from the date of the bond, (17th day of Hovember, 1854,) would be, and was in truth, taken by the parties for the adjustment of the semi-annual interest, as that they departed from the letter of the instrument by delaying the collection to the 22d, and that when at the end of six months from the date of the bond, the first payment of interest was made, any abatement which was just to the defendants, by reason of the original delay of five days in advancing the money, was adjusted as it ought to have been between the parties. In this view of the subject, it does not appear at all that the whole sum of one hundred and forty dollars, paid on the 17th of May, was not due. It was fully due for just six months’ interest, and, as conceded by the defendants’ counsel, was, by the terms of the bond, payable on that day. So also the sum of $500, paid on account of principal moneys, was confessedly due on that day.

This being conceded, there was no consideration for the agreement to forbear. The plaintiff not only did not receive more than was lawfully due, but he might have required the whole sum named in the condition of the bond. Payment by the debtor of a part of a sum already due and payable, is no legal consideration for an agreement to extend the time for the payment of the residue, or for any other agreement.

On the other hand, let it be assumed, that six months’ interest was paid the previous November, without any abatement for the five days’ delay in advancing the money, so that it be taken as claimed by the defendants’ counsel, that on the 17th day of May, 1855, the whole $140 had not accrued, and that there was then an agreement, tnat the defendants should not only pay interest upon the residue of $3,500 of principal, but as a further compensation for forbearance until the 10th of August, should also pay the $140, (including therein five days’ interest, which had not accrued.) If this be taken as the real state of the case made by the answer, (and unless it be, there was no consideration for the agreement,) then plainly the agreement to extend the time of payment to August, was void for illegality—it was usurious. However small the pecuniary consideration over and above the legal interest, if there was any, it made the agreement void, and the defendants were not bound by it—neither was the plaintiff. The defendants may recover back the consideration so paid. The defendants might immediately thereafter have filed their bill, and had a decree for redemption.

The result is this, (the consideration, if any, for the alleged agreement, being, confessedly, the payment of a small excess of interest,) such agreement was either without without consideration and void for that reason, or it was made upon a usurious consideration, and, on that ground, was ineffectual.

This renders it unnecessary to consider whether, or under what circumstances a parol agreement may operate to extend the time for the payment of a bond or the performance of an agreement under seal.

As to which, see Fleming v. Gilbert, 3 J. R. 527; Keating v. Price, 1 John. Ca. 22; Latimer v. Harson, 14 J. R. 330; Dewey v. Derby, 20 J. R. 461; Erwin v. Saunders, &c., 1 Cow. 249; Frost, &c., v. Everett, 5 Cow. 497; Dearborn v. Cross, 7 Cow. 48; Bailey v. Johnson, 9 Cow. 115; Langworthy, &c., v. Nutt, 2 Wend. 587; Pearl v. Wells, 6 Wend. 291; Blood v. Goodrich, 9 Wend. 68; Delacroix v. Bulkley, 13 Wend. 71; Allen v. Jaquish, 21 Wend. 628; Eddy v. Graves, 23 Wend. 83; Nelson v. Sharp, 4 Hill, 584.

I forbear to place reliance upon the obvious doubt, whether in any aspect of the case, the circumstance, that the interest was paid five days before it became due, ought, as matter of fact, to be deemed to have been regarded by the parties themselves as any consideration or motive to the alleged new agreement. The difference of only a few cents probably never was thought of by either, and even if it was paid, was no motive or inducement to the alleged agreement, and was not so regarded. Probably, if more interest was paid than was due, it was a mere inadvertence, but I have felt bound to take the facts as alleged in the answer, instead of resting upon my own inferences in this respect.

The judgment should be affirmed, with costs.