text:
    HENRY WEHLE, Plaintiff and Appellant, v. THE BOWERY SAVINGS BANK, Defendant and Respondent.
    ORDER OF INTERPLEADER.
    Where the affidavit on which the order was made was sufficient to authorize the same under § 123 of the Code, and the opposing affidavits do not show any real grounds for refusing such order, the order should be affirmed.
    The validity of an order of another court, annexed to the moving papers, in support ,of the motion, could not be determined on the motion, but was a question to be determined on the trial of the action.
    Collusion between the party to whose rights plaintiff succeeded and the party claiming under such an order of another court, was not sufficient ground for refusing such the order of Interpleader, so long as the party applying for the same did not appear to be a party to such collusion.
    Before Freedman and Speir, JJ.

      Decided December 6, 1875.
    Appeal from an order of Interpleader made by the special term under § 122 of the Code.

      Simon Sultan, of counsel for appellant.

      Carlisle Norwood, Jr., of counsel for respondents.
   By the Court.—Freedman, J.

The affidavit on which the order appealed from was made, was sufficient to authorize the court to order an interpleader,, under § 122 of the Code. The order of Mr. Justice Gross, which is annexed to the affidavit, shows the good faith of the application, but its validity could not be determined upon the motion. That question is to be determined on the trial of the action against the party claiming under it. Nor did the opposing affidavit of the plaintiff show any grounds for refusing the order. Collusion between the party to whose rights plaintiff succeeded and the party claiming the fund from the bank under the order of Mr Justice Gross, is not enough, as long as the bank is free from it.

The order should be affirmed, with costs.

Speir, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    THE TRIBUNE ASSOCIATION, Plaintiff and Respondent, v. A. BURDETTE SMITH, Defendant and Appellant.
    amendment op answer, terms op.
    Power of the court to require the payment of all costs and disbursements from and after notice of trial, and when such terms are eminently just and proper.
    Before Freedman and Speir, JJ.

      Decided December 6, 1875.
    Appeal by defendant from order of special term granting him leave to amend his answer.

      Walter M. Rosenblatt, of counsel for appellant.

      Charles D. Adams, of counsel for respondent.
   By the Court.—Freedman, J.

The only question presented by the appeal is whether the terms imposed as a condition of amendment were proper.

The amendment allowed, involved an entire change of the defense previously interposed and the interposition of a new defense.

It was shown by affidavit in opposition to the motion that the cause had been reached and called for trial many times on the day calendar ; that on each of said occasions the plaintiff was ready and anxious to proceed, but that the trial was invariably put off on defendant’s motion, and that in consequence of such postponements the plaintiff had lost several terms. Other suspicious circumstances were made to appear, and upon all the papers the good faith of the application stood seriously questioned.

Under these circumstances the court at special term not only had the power to require the defendant to pay, as a condition, all costs and disbursements of the plaintiff since the notice of trial, but the imposition ■ of such terms was eminently proper.

The order appealed from should be affirmed, with costs.

Speir, J., concurred.


text:
    JOHN LEHMAIR et al., Plaintiffs and Respondents, v. ALMON W. GRISWOLD, Defendant and Appellant.
    ACTION, CHARACTER OF.
    Where the summons is for relief, and the complaint alleges a conversion of property, the character of the action is determined by the complaint, and is an action for a tort.
    A counter-claim in such an action to be available, must arise out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff’s claim, or it must be connected with “the subject of the action.”
    The words “ the subject of the action ” mean “the facts constituting plaintiff’s cause of action ” (Chamberet v. Cagney, 2 Sweeney, 385).
    Before Freedman and Speir, JJ.

      Decided December 6, 1875.
    Appeal from order of special term sustaining demurrer to counter-claims contained in answer.

      A. Heydenreich, attorney for appellants; Chas. Lee Clark, of counsel.

      S. Kauffman, attorney for respondents ; Lewis Sanders, of counsel.
   By the Court.—Freedman, J.

The summons is for relief, and the complaint is in tort, alleging a conversion of two sums of money. For the purposes of this appeal, the character of the action is determined by the complaint.

The counter-claims demurred to, are, therefore, not available in this action under § 150 of the Code.

They do not arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, nor are they connected with the subject of the action. The words “the subject of the action” mean “the facts constituting plaintiff’s cause of action” (Chamberet v. Cagney, 2 Sweeny, 385).

The order appealed from should be affirmed, with costs.

Speir, J., concurred.


text:
    REON BARNES, Plaintiff and Appellant, v. STEPHEN BARKER, Defendant and Respondent.
    BROKER, COMPENSATION OF.
    Where it appeared from the contract between the parties that plaintiff’s compensation as a broker depended upon an actual sale of a certain bond and mortgage, it may be well questioned whether the procurement of a purchaser who was able and willing to purchase the same, is a fulfillment of the contract by the broker.
    But in the case at bar, where it appeared that although the plaintiff procured a purchaser who was able and willing to purchase the same, provided, the time of payment was shortened several years, and there was no evidence that the mortgagor consented to this change, and the fact was conceded that no sale took place, in such a case the plaintiff did not procure a purchaser under the contract, and was not entitled to recover any compensation.
    Before Freedman and Speir, JJ.

      Decided December 6, 1875.
    Appeal from a judgment entered upon the decision of a single judge, (without a jury) dismissing the complaint.

      Truax & Doscher, attorneys for appellant.

      M. J. Thompson, attorney for respondent.
   By the Court.—Freedman, J.

From the complaint .and the testimony of the plaintiff, it appears that under the contract, as made between the parties, plaintiff’s -compensation as a broker depended upon an actual sale of the bond and mortgage in question. Under such a contract it may well be questioned whether the mere procurement of a purchaser who is able and willing, is •enough. But the testimony further shows that though the plaintiff procured a purchaser who was ready and willing to take the said bond and mortgage in case the time of payment was shortened several years, he failed" •to procure one to take them as they were drawn and as they existed. Moreover, no legal proof was adduced that the mortgagor ever consented to the shortening of the time; and the fact remained conceded that no sale whatever took place in point of fact.

Under these circumstances the learned judge below was fully justified in finding that the plaintiff * did not procure a purchaser for said bond and mortgage.

The exception at fob 51, on the ground of immateriality, which is the only one noticed in appellant’s points, is not well taken. The evidence admitted under it had an important bearing on the probabilities of the case.

The judgment should be affirmed, with costs.

•Speir, J., concurred.


author: Speir, J. Freedman, J.

text:
    WILLIAM K. CLARE, Plaintiff and Respondent, v. THE NATIONAL CITY BANK, Defendant and Appellant.
    NEGLIGENCE.

      Responsibility of principal for the negligence of employees of a person with whom he has contracted for the performance of work.

    The employment of a superintendent by the party who contracts for the work, to see that the work was properly done and in accordance with the contract, does not give the party the control of the work, to that extent that he becomes liable for the negligence of the employees of the contractor who are directly under, the control and direction of the latter.
    The right to select and employ and control the action of the workman or servant, whose negligence is complained of, lies at the foundation of the responsibility of a master or principal for the negligent act of such workman or servant by which another person has been injured. The person who possesses and exercises that right, is the one recognized by the law as the master.
    In the case at bar the defendant and another, the owners of certain real estate in New York, contracted with different parties for extensive building improvements, alterations, and general repairs, upon the property owned by them.
    The persons who contracted to do the work, employed the workmen, and controlled and directed them in their employment, and the plaintiff was injured by the carelessness and negligence of said workmen, or some one of them. The owners of the property employed a superintendent to see that the work was properly done according to the contracts and plans. This superintendent was aided and assisted by an architect, but neither the owners, the superintendent, nor the architect selected or employed the workmen or controlled and directed their labors.

      Reid, that the defendant was not liable to the plaintiff for an injury caused by the negligence of the workmen of the contractors, or some one of them.

      Before Freedman and Speir, JJ.

      Decided December 6, 1875.
    Appeal from order denying a new trial.
    The complaint alleged that the defendants were the owners, and in the possession, making alterations and repairs of the premises known as the westerly portion of No. 52 Wall street, in the city of New York. That the defendants so carelessly and negligently omitted and neglected to provide any safeguard or warning while engaged in making the repairs and alterations, that the plaintiff, in the course of his business, while passing over the sidewalk in front of defendant’s building, and unaware of the unsafe condition of the building, and without any fault or negligence on his part, was violently struck on the head by a board which was thrown or fell from the building, throwing him upon the ground, and rendering him insensible, by reason of the negligence and carelessness of the defendants, or of their employees.
    The answer was a general denial, and admitted that the defendants were, and still are the owners, and in part the occupants of the premises, and that they caused alterations to be made of the same at the time mentioned in the complaint.
    The whole of the work was done under contract. Three of the contracts were in writing; the rest were verbal. The work was paid for according to contract. The accounts of the work were presented to the architect, who certified to their correctness, and drew a draft for the money. Each mechanic kept his own account, and each contractor kept his own men’s accounts. The defendant did not select or employ any of the workmen.
    The plaintiff had a verdict for two thousand dollars. Defendant moved for a new trial on the minutes, which was denied, and he brings this appeal.

      Arnoux, Ritch & Woodford, attorneys for appellants ; Wm. H. Arnoux, of counsel.

      James S. Stearns, attorney for respondent; Luther B. Marsh, of counsel.
   Speir, J.

At the time of the accident, it appears that the premises, 52 Wall street, extending through from Wall to Pine streets, were owned, the one-half westerly part by the defendants, and the easterly one-half by the New York Life Insurance and Trust Company. Mr. Henry Parish, who was a director in the defendants’ bank, and a trustee in the New York Life Insurance and Trust Company, was the chairman of the building committee for both institutions. The defendants alone were the owners of the premises from which the plank fell, causing the plaintiff’s injury. The improvement was jointly carried on by both companies, consisting of one building having a common entrance, and under the general management of Mr. Parish as superintendent. A new building was put up on the Pine street front, and the Wall street front was practically rebuilt. When the accident occurred, the Pine street building was pretty well finished, the front was up on Wall street, and the second story had one or two coats of plaster on. The defendants at this time occupied the rear room on the first floor on Pine street, and did not occupy any part of the second floor.

This court has decided, adopting the principle established in this and the supreme court, that the employment of a superintendent by the party who contracts for the work being done, to see that it is properly done, and in accordance with the contract, does not give him control of the work or affect his liability. The chairman of the building committee in this case can hardly be said to have exercised the office of superintendent. He did not make any of the payments. The routine of business adopted by him, was daily frequenting the architect’s office, examining the drawings with a view of consulting with the architect, and to see if they were carried out. If he saw any defects, to speak to the architect about them, and not to the men engaged in the work, nor to the contractor. It clearly appears that the architect was the chosen agent between the defendants and the contractors, who should be the final arbiter relating to all questions in dispute between them. The payments were'made to him upon his certificate ; each mechanic kept his own account, and each contractor kept the account of his own men. ¡Neither the superintendent nor the defendants, nor even the architect, selected the workmen ; and this right of selection lies at the foundation of the responsibility of a master or principal for the acts of his servant or agent.

The superintendent does not appear to have had any control over the contractors or their workmen as to the manner of performing it, and what he did do had no tendency to create the relation of master and servant, or of principal and agent, between the defendants and the contractors, or the workmen employed by them.

I am not able to find any evidence in the cage authorizing the jury to find a verdict against the defendants. The only testimony in the case which throws any light upon the cause of the injury, and by whom inflicted, is that of Judge Curtis, and that in no way points to the defendants, but rather to the servants and agents doing the work. According to his testimony, the plank appeared to come out of the top of the second story window. It was what is ordinarily called scaffolding boards. He saw a scaffolding inside of the window undergoing some change, and some person apparently at work at the scaffolding very near the upper ceiling of the room. This, so far as it goes, is affirmative evidence, and points to the workman in charge.

Besides, the evidence is uncontradicted that the defendants at the time occupied the rear room on the first floor on Pine street, and did not occupy any part of the second floor.

The case can not be distinguished in principle from those already decided by this court, and it does not seem necessary or useful to repeat the reasoning in those cases.

Judgment should be reversed, and a new trial ordered, with costs to appellants to abide the event.

Freedman, J.

On the second appeal (35 N. Y. Superior Ct. R. 261), the general term of this court held, that under their answer the defendants had a right to show that the work was done for them by contract, under independent contractors, over whose workmen the defendants had no control, the workmen being responsible to the contractors only. Under the permission thus given, the defendants have now supplied such proof, and the same, as given, constitutes a defense on their part to plaintiff’s cause of action.

I, therefore, concur in reversing the judgment, and ordering a new trial.


author: By the Court.—Speir, J.

text:
    A. CLINTON BIRD, Plaintiff and Respondent, v. BESSON J. AUSTIN, Impleaded, etc., Defendant and Appellant.
    COPARTNERSHIP.
    Effect of the appointment of a receiver of its effects, and the transfer of the same to him, &c., upon contracts of service between the firm and its employees. Such a result does not operate as a rescission on the part of the copartnership of a contract between the copartnership and one of its employees. °
    Before Freedman and Speir, JJ.

      Decided December 6, 1875.
    The action is brought to recover of the defendants the balance of eighty-four dollars and seventy-two -cents for services for the months of January and February, 1872, at the rate of one thousand five hundred dollars a year ; also for a breach of contract alleging that on January 5,1872, the defendant agreed to pay the plaintiff as head clerk at the rate of two thousand dollars a year, and that he continued to serve the defendant from January 1, 1872, until March, 1872, when he was wrongfully, unlawfully, and without cause by them, discharged.
    It was shown on trial that Heath &. Austin were the general partners of the firm of “E. A. Heath & Co,” which firm was formed August 1, 1871. That John D. Harrington was appointed receiver of the co-partnership property February 28, 1872, and filed his bond February 29, 1872, and entered upon his duties March 1, then next. By the Order appointing the.receiver, he was authorized in his discretion to make sales, and for the purpose of making, them more advantageously, to continue the business of the firm, or part thereof, as he might deem advisable.
    The question litigated before the jury had regard to-the alleged contract made by the parties on January 1, 1872, for an increase of salary from one thousand five hundred to two thousand dollars a year, and if such contract existed, whether he was discharged by the receiver on March 1, 1872, when he entered upon his duties, or whether the plaintiff voluntarily relinquished his right to such additional salary by discharging himself.
    The jury rendered a verdict for the plaintiff for the larger sum of one thousand three hundred and fifty-four dollars and fifty-six cents. The defendant moved for a new trial on the minutes, which was denied, and he brings this appeal.

      Thomas F. Wentworth, for appellant.

      I. T. Williams, for respondent.
   By the Court.—Speir, J.

It is quite clear that the jury has found the contract as alleged in the complaint, that the defendants were to pay to the plaintiff a salary for services rendered, at the rate of two thousand dollars a year, to commence on January 1, 1872, and to terminate on January 1, 1873, and that the plaintiff was entitled at that rate from January 1, 1872, to March, 1872, for services actually rendered when the receiver assumed his office as such. In tíasparticular, the jury followed the instructions of the court. He told them the rate of compensation was the only question in dispute. The fact whether the plaintiff was ready to perform the services under the contract, or refused so to do, and whether the defendant discharged him from farther duty in that respect, was withheld from the consideration of the jury. For if the law as laid down by the learned judge is sound, it must follow that, even though such a contract existed between the parties, and was partly performed up to the time the receiver entered upon his duties, the plaintiff” would be entitled to recover, although he without sufficient cause refused to execute it on his part.

The court told the jury that in regard to the discharge as affecting the right of the plaintiff to recover in this action, it was not a question for them to dispose of; that the court would dispose of that, as a matter of law ; that the appointment of the receiver of the property and assets of the firm of E. A. Heath & Co., operated as a dissolution of copartnership, and a transfer of all such property and assets to the receiver, and such dissolution and transfer was a rescission of the contract then existing between the plaintiff and the defendant, and although the receiver had authority to-continue the business, and could have continued the services of the plaintiff, he was not bound to do so. ÍTor was the plaintiff bound to continue in the service of the receiver.

The defendant’s counsel excepted to that portion of this charge which relates1 to the appointment of the' receiver as rescinding the contract of employment by E. A. Heath & Co. The charge embraced two distinct propositions, although they are grammaticaliy connected in the same sentence. The first relates to the dissolution of the copartnership, and the transfer of the property and assets of the firm by operation of law to the receiver. The second, the effect of the transfer as rescinding the contract between the plaintiff and defendants. The exception very clearly and specifically points out that portion of the charge as being objectionable, with sufficient accuracy, and is not, I think, justly liable to the plaintiff’s criticism in that, particular. Mor do I think that the whole of the charge must be erroneous in order to sustain this exception as claimed by counsel.

The question litigated by the parties, whether the receiver discharged the plaintiff for the reason that he would not recognize his contract as claimed by him, or for any other cause, or whether the plaintiff refused to perform that contract, was taken from the jury, and the only question they were instructed to find, was what the contract was.

If the contract was rescinded by operation of law, it follows there was nothing whatever for the jury to pass upon. Again, if such a contract existed, and the plaintiff, for any cause, refused 1o carry it out, it was a breach on his part, and he can not recover.

Judgment and order must be reversed, and a new trial ordered, costs to appellant to abide the event.

Freedman, J., concurred.


text:
    FIRMIN COUSINERY et al., Plaintiffs and Respondents, v. JOHN PEARSALL et al., Defendants and Appellants.
    SALE OP GOODS BY SAMPLE.
    The genera] rule is that it must clearly appear that the contracting parties mutually understood and agreed that they were dealing by sample, and that the agreement was, that the bulk of the goods not exhibited was equal in value and corresponded in quality to the sample of the same exhibited to the purchaser.
    The exhibition of a portion of the goods, purporting to be a sample, is not a fact of itself sufficient to make the seller liable on an implied warranty in regard to the nature, value, and quality of the goods being equal to the sample.
    The seller must represent and warrant that the goods sold correspond, and are in all respects equal in value and quality to the sample displayed.

      Sale by auction. Memorandum of sale by auctioneer, proved on trial without objection. The effect of its non-appea/rance in the case on appeal.

    If an appellant seeks to raise the question of the sufficiency and regularity of the memorandum of the sale made by the auctioneer, and which was proved on the trial without objection, he must procure the same to be incorporated in the case, and thus furnish the court the means of deciding upon its sufciency. In such a case, the court on appeal must necessarily assume that it was sufficient, and that there was no error of the judge before whom the case was tried in deciding that the same was sufficient.
    DELIVERY.
    Proof of a tender of a portion of the goods, and a refusal or rejection of the same, or a refusal to receive the bulk of the goods, is equivalent to a complete delivery of the whole.

      Tie-sale of property once sold to a party who refuses to accept and pay for the same.

    The general rule requires that the identical property sold shoald be separately sold in mass or by lot, and the original buyer credited with the proceeds of such sale. The goods should not be mingled with other like property. But if, from the-nature of the case such separation and separate sale was-impracticable, and the general amount of like property was sold without being specifically separated from other like property, then and in such case the highest value obtained for any one lot of said property thus re-sold, should be taken as the price or value for which the original buyer should be-credited.
    Before Freedman and Speir, JJ.

      Decided December 6, 1875.
    The action is to recover the price of lemons sold by the plaintiffs to the defendants at public auction. The defendants refused to take delivery, and the lemons were then resold at public auction and the proceeds of sale credited upon the claim. The goods arrived at New York by the steamship Alexandria from the Mediterranean, shortly before the day of sale, and were put into the hands of auctioneers, who had at the same time the selling of the rest of the cargo of the vessel. The cargo consisted of four thousand five hundred and sixty boxes of lemons, all sold at the same time by the same auctioneers, and of these the plaintiff had one thousand five hundred and forty boxes marked “ M. D.,” and three hundred and sixty boxes marked “ A. M.”
    The defense set up in the answer is, that it was a sale by sample, and that the bulk of the lemons offered for delivery did not correspond with the sample, and that by the heat of the season and the vessel they had been damaged so as to be entirely worthless.
    The defendants bid for and purchased three lots at varying prices, being an average of a little over five dollars and fifty cents a box, when sound lemons- of the same kind were known then to be worth six dollars and fifty cents a box. The plaintiffs made delivery in the usual way, taking the defendants in turn as they purchased, when they came out of the vessel; the great bulk of them were very badly damaged on the steamship, some comparatively less damaged. Three loads were sent to defendants’ store, who declined to take any but the best, and to reject the rest. The rejected lemons were taken to the storehouse and condemned by the board of health, but on a resale they were disposed of, and the amount credited to the defendants. Upon the trial the defendants asked to go the jury on various questions, but the court refused, and directed a verdict for the amount claimed, directing the exceptions to be heard in the first instance at general term. To which the defendants excepted.
    Evarts, Southmayd & Choate, plaintiff’s attorneys; Joseph H. Choate, of counsel.

      Nathaniel Niles, defendants’ attorney ; W. W. Niles, of counsel.
   By the Court.—Speir, J.

The defendants first rely upon the principal defense set up in the answer of sale by sample. They claim, that though the goods were sold as damaged, yet if sold by sample, the sample should be a fair specimen of the whole.

As a general rule on a sale by sample, it must appear that the parties mutually understood they were dealing with the sample, on an agreement or understanding that the bulk corresponded with it, even though the seller exhibit .a sample at the time of the sale, that of itself will not make it a sale by sample, so as to render the seller liable on an implied warranty as to the nature and quality of the goods. But if the seller warrants that the whole bulk corresponds with the sample, he is liable in case it turns out to be different, although it was sold as a damaged article.

In this case it appears that the sale took place in pursuance of an advertisement made by the auctioneers, stating the quantity of Menton lemons to be sold, which could be seen on pier 20 ¡North River.

The defendants saw some of the goods that were discharged, and some of the damaged lemons, before the sale commenced. When the sale began, the auctioneer gave express notice that the goods were sold as they were, and that no allowance would be made for anything whatsoever. It seems to have been understood by persons present, that the goods offered were a damaged lot, and it is plain that the defendants bought them at damaged prices ; under these circumstances, the fact that a part of the "lemons before the sale were discharged and on the dock, could not make them samples of the rest.

The defendants next contend that as no payment nor memorandum was made, nor any part of the goods accepted and received, as required by the statute, they could not be held. The auctioneer’s book containing his memorandum was produced and read on the trial, and the auctioneer was examined in relation to it by defendants’ counsel. ¡No objection was then raised, nor is the memorandum to be found in the case to enable us to determine whether it complied with the statute of frauds, or the statute relating to auction sales. If the appellant seeks to raise the question, I think it was clearly his duty, in making up his case, to furnish this court with the means of deciding it. This memorandum was before the court, as appears from the record, and must have been passed upon by the learned judge who tried the cause. There is nothing to show that there was error, and it should not in such a case be presumed. There was in law a sufficient delivery of the lemons; it was not necessary tc prove a complete delivery, after proving a tender of the lemons and rejection. The defendants purchased eight hundred and forty boxes out of one thousand five hundred and forty marked “M. D.,” the rest, seven hundred were sold to other parties. These eight hundred, and forty boxes were taken in the order as they came out of the vessel, and in their turn as purchasers, and three or four truckloads were, as a part of the eight hundred and forty, tendered to the defendants, who refused to take any but the best. They were not entitled to take their choice of the whole cargo, or out of the whole invoice by the marks of which they bought. The defendants had notice of the resale of the lemons tendered and refused, and this was evidence of the value of those damaged.

The express announcement at the sale that the goods were damaged, their actual and intrinsic value, or that they were subsequently condemned by the Board of Health, is of no consequence. It seems to me that the only practical method of re-selling the goods, under the circumstances, was to re-sell them in the mass, or. by lot indiscriminately, and to credit the defendants with the highest price. The general rule recognized by the law, requiring that goods re-sold on account of a party refusing to receive them, when lawfully tendered, is that they should be separately sold, and not mingled with others. In the present case the rule could not be observed, and the plaintiffs assuming to make the sale in the defendants’ interest should in fairness account, I think, for the highest price obtained. The notice to the defendants of reselling being, in the absence of other evidence, evidence to show value for the purpose of this case, the highest price must be the true measure of defendant’s credit on such a sale.

I can not see that the defendants’ exceptions to the refusal of the court to submit to the jury are well taken.

Defendants’ exceptions must, therefore, be sustained, unless plaintiffs consent to a reduction of one hundred and sixty-eight dollars in the amount of the verdict, in which case the exceptions are overruled, and judgment ordered for the plaintiffs upon the verdict as reduced.

Freedman, J., concurred.


text:
    GEORGE B. ROCKWELL, et. al., Plaintiffs, v. BRIDGET McGOVERN, et. al., Defendants.
    DEED OF INSOLVENT. PRIMA FACIE EVIDENCE OF TITLE.
    A conveyance made by an insolvent of premises to an assignee, under and by virtue of the statute relating to voluntary assignments, &c., &c., and for the consideration of one dollar, is prima facie evidence of title to the premises, and should be received in evidence, and properly preceded in the order of proof, the evidence of the other proceedings under the statute. (This point was decided in this case in the Court of Appeals, 54 N. Y. 310.)
    Proof following such conveyance to the effect that all the proceedings in insolvency, under the statute of which this conveyance formed a part, were null and void, destroys the effect of the deed, and the same is null and void.
    In such case the conveyance must be considered as a mense assignment under the proceedings, and if the latter were null and void, the former was also null and void.
    If the proceedings were void for want of jurisdiction, the deed or assignment must fall with them (Vose v. Cockcroft, 44 N. Y. 415 ; Homan v. Brinckerhoff, 1 Denio, 184 ; Gaines v. Stiles, 14 Peters, 333.)
    'The assignment was not voluntary ; it was involuntary in its character, and given by the assignor to obtain his discharge in these proceedings, and in case of the latter being void, the assignment or conveyance fails for want of consideration, for the “ one dollar” consideration will be deemed to be merely formal, and does not change the character of the deed (Morris v. Ward, 36 N. Y. 587).
    Before Freedman and Speir, JJ.

      Decided December 6, 1875.
    This case comes before the court upon exceptions taken by the plaintiffs upon the trial, and ordered to be heard at general term in the first instance.
    It was an action of ejectment brought to recover certain premises in the city of Hew York.
    Prior to December 2, 1845, the title to the premises was in one Isaac Y. Paddock, who on that day executed an instrument in writing, stating that “under and in virtue of the statute concerning voluntary assignments made pursuant to application of an insolvent and his creditors, and in pursuance of an order made by Hon. Albert Lockwood, a judge of the Westchester -court, &o.” “ And for the consideration of one dollar,” he granted, bargained, sold, &c., unto George R. Rockwell, the person who had been nominated assignee by the petitioning creditors who signed the petition for his discharge, for the benefit of his creditors all his estate, &c.
    It was admitted that all the proceedings were null and void.
    The facts sufficiently appear in the opinion. The court directed a verdict in favor of defendants, exceptions to be heard in first instance at general term.

      John Townsend and W. McDermot, for plaintiffs.

      Thomas B. Browning and Alexander Thain, for defendants.
   By the Court.—Speir, J.

On the former trial of this case, the plaintiff, after having shown the fee to the premises to have been vested in Paddock, offered to-read in evidence the deed, or more strictly the assignment executed by Paddock, acknowledged and certified to entitle it to be read, conveying all his estate, subject to certain exceptions, to the plaintiff. The deed was' expressed to be “ for the consideration of one dollar tome in hand paid,” and also recited that it was executed under and by virtue of the statute concerning voluntary assignments, made pursuant to the application of an insolvent and his creditors, and in pursuance of an order made by a county judge.

The reading of the deed was objected to unless the plaintiff first proved the proceedings in the matter of the insolvency of Paddock. The court excluded it, and the plaintiff excepted.

The exceptions were heard at the general term, and the ruling was there affirmed. On appeal, a new trial was ordered. The case is reported in 54 N. Y. R. 210.

The only question before the court, as appears from, the reported case, was one relating to the exclusion of the deed before proof was given in the proceedings in the matter of the insolvency of Paddock. The plaintiff being non-suited upon the rejection of the deed, there was nothing else before the court. The court decided a s the proof of the deed properly preceded in the order of proof that of the oath of an assignee, by the insolvent-law, and as the oath without the deed was immaterial, the absence of that proof was no reason for non-suiting the plaintiff. Mr. Commissioner Reynolds adds, “that by the production of this deed the plaintiff established a prima facie title to the premises, and it should have been received in evidence.”

The case comes before us now with the admission of the deed in evidence as establishing a prima facie title in the plaintiff, and with the plaintiff’s admission, that these proceedings in insolvency had before Lockwood were null and void. The plaintiff ’ s counsel relies upon the decision in 54 N. Y., as deciding that the deed by Paddock to Rockwell was sufficient of itself, and without the aid of any insolvency proceedings, to vest the title in Rockwell. That question was not in the case before the court was called upon to decide whether proper and competent evidence had been excluded on the trial. It is quite plain to my mind, the deed in question would not have been executed and delivered to Rockwell except under and by virtue of the said proceedings. The grantee, Rockwell, is named in the deed as the person who has been nominated as assignee by the petitioning creditors, who signed the petition for Paddock’s discharge for the benefit of all his creditors. This instrument must be considered as a mesne assignment under the proceedings, and was in terms so understood by the parties. If the proceedings are admitted to be null and void, then it is plain that the assignment, being a part of the proceedings, must also be null and void ; this seems to be too plain for argument. The deed or assignment by itself, when offered in evidence, was prima facie valid, and was therefore properly admitted, out if all the proceedings are void for want of jurisdiction, the assignment must fall with the rest (Vose v. Cockroft, 44 N. Y. 415 ; Homan v. Brinckerhoff, 1 Den. 184 ; Garnes v. Stiles, 14 Peters, 823 .

It is claimed that although the proceeding is void, the assignment is voluntary, and if Paddock chooses to make the assignment, he should be bound by it. But the assignment is not voluntary. It is in inmtvm, compulsory, given to enable the assignor to obtain his discharge in these very proceedings, and without which, under the statute, he could not get his release. If the proceeding are void, there is no consideration to uphold the assignment, for it appears from a review of the whole instrument that the intention was to execute the assignment as a part of the insolvent proceedings, and “ the one dollar” preliminary consideration will be deemed to be merely formal, and does not change the character of the deed (Morris v. Ward, 36 N. Y. 587).

Plaintiff’s exceptions should be overruled, and judgment ordered for defendants on the verdict, with costs.

Freedman, J., concurred.'


text:
    ROBERT NAPIER, Plaintiff and Appellant, v. CHARLES H. FRENCH, et al., Defendants and Respondents.
    STATUTE OF FRAUDS.

      What constitutes an agreement in writing.

    A letter of the party to be bound, delivered to the other party, which states the consideration and the indebtedness, and accepted and acted upon by the latter party, is sufficient.

      Construction of the statute in regard to the time when the writing should he made, signed by him, die.

    Where the indebtedness existed at the time the letter was so delivered and acted upon, by virtue of a previous parol agreement ; the letter is the written agreement, and was the consummation of the previous verbal arrangement, and is in fact and in law the actual agreement between the parties, and the time of its execution and delivery being at a later date than the verbal arrangement, does not affect its validity.

      Before Freedman and Speir, JJ.

      Decided December 6, 1875.
    The action was brought to recover the balance of an account alleged to be due from the defendants to the plaintiff for his services rendered to them as their traveling agent in selling merchandise.
    The answer contains a general denial, and sets up a counter-claim for the balance of moneys due the defendants on the sale of stock of the East Side Association.
    Pending the negotiation for the employment of the plaintiff, he verbally agreed to take part of his compensation, to the extent of two hundred and fifty dollars, in stock of the East Side Association. After the plaintiff had rendered his services, he wrote the following note, and sent it to the defendants:
    “New York, November 30th, 1869.
    “ Mr. Ward : * •
    “ Dear Sir—Will you let me have a settlement of account. You can hold one-half the price of the twenty-five shares in the Yorkville building, and I shall pay balance in the spring, or when the scrip is issued. I do this in order to keep my word, although under existing circumstances I am not able, but will look to you for the interest which you assured me would be paid yearly on the stock.
    “ Yours, &c., R. NAPIER.”-
    The account asked for was rendered by the defendants to the plaintiff, who returned it to them with a written statement • of this own account, wherein he charges himself with one half of the stock. ■
    The case was referred, and the referee awarded a judgment for the counter-claim.

      W. McDermott, for appellant.

      Alex. Thain, for respondents.
   By the Court.—Speir, J.

The only question presented by the appellant relates to the allowance of the counter-claim, and his objection is put upon the ground that the agreement to buy the stock of the East Side Association is void by the statute of frauds.

The referee has found that “ the twenty-five shares in the Torkville building,” stated in the note or memorandum in writing, meant the East Side Association, and the said twenty-five shares of the capital stock thereof. He has also found that there was due at the time the note was written by the defendants to the plaintiff more than one hundred and twenty-five dollars, and that half the price of the .said twenty-five shares was one hundred and twenty-five dollars.

When the plaintiff1 asked that one hundred and twenty-five dollars, being one-half the price of the stock, be charged to his account as a payment on account of the stock, he promising to pay the other half price when the certificate was issued, and he actually so charged himself in his account, then that was a part payment on account of the purchase, and he became liable for the balance.

The memorandum was subscribed by the party to be charged, and appears to. me to meet all the requirements of the statute. It was insisted, however, that it could not be called an agreement in wriiing, but only a mere proposition made by the plaintiff and not accepted by the defendants. The case shows that' it was delivered to the defendants by the plaintiff, and the parties acted on it by submitting a statement of their account in pursuance of its terms.

A further objection was made that if this letter ■could be construed as a payment, it would not take the case out of the statute, as it was not made “ at the time of the agreement.” The fact of indebtedness at the time the letter was written, was found by the referee to be against the defendants, and more than one •hundred and twenty-five dollars, the half price of the stock. Moreover, the written agreement was the consummation of the verbal arrangement made by the parties, and is in fact and in law the actual agreement ■between them. The defendants held the stock as collateral to plaintiff’s indebtedness to them for the balance of the purchase money, as they had a right to ■¡do under plaintiff’s request. A tender of this stock was not necessary before asserting their counter-claim.

The judgment must be affirmed, with costs.

Freedman, J., concurred.


text:
    HENRY JUTTE, Plaintiff and Appellant, v. WILLIAM J. HUGHES, Defendant and Respondent.
    DAMAGES. WHEN SPECIAL DAMAGES CAN BE RECOVERED..
    They must be averred in the complaint, else they can not be proved on the trial.
    In the case at bar, the action was to recover damages for the overflow of water into the cellars of the plaintiff from the premises-of defendant, caused by the defective sewerage of defendant’s privies and drains.
    The plaintiff offered to prove special damage, caused by the loss of rent on his premises, the tenants leaving because of the condition of the cellars, &c. The court refused to receive this evidence because there was no claim set up in the complaint for loss of tenants, &c. The only exception of the defendant that was. heard and considered, on the appeal, was. to this ruling, and the charge of the judge in reference thereto.
    The earliest decision of this court on this subject (Shipman v. Burrows, 1 Sail’s Superior Ct. R. 411) referred to, and approved.
    Before Freedman and Speir, JJ.

      Decided December 6, 1875.
    The plaintiff is the owner of 97 & 99 Lewis street,, tenement houses, the rears of which abut upon the yard; also of No. 97 Lewis street, belonging to the-defendant; and this suit is brought to recover damages for water which flows from defendant’s yards into the cellars of the plaintiff’s houses in such quantities as-to soak and cover the floor of the cellars, and render them permanently unfit for use, and also to injure the walls and other portions of the building, and created such an offensive stench as to interfere with the plaintiff’s use of the premises, and the letting thereof. The-cause of the damages complained of, alleged in the complaint, was that the defendant had failed to keep-the privies, drains, and drain-pipes in his building in proper repair. The jury rendered a verdict in defendant’s favor.
    By stipulation, it is agreed that the only exceptions the plaintiff desires to raise on the appeal are the exceptions to the charge, and the exceptions to the ruling-of the court in excluding the rental value of the premises as an element of damage.

      George W. Wengate, for appellant.

      Warren G. Brown, for respondent.
   By the Court.—Speir, J.

The plaintiff under the-allegation in thé complaint, that by reason of the defective sewerage of defendant’s privies, drains, and drainpipes, an overflow of water into the cellars of the-plaintiff’s houses had been caused, rendering them permanently unfit for use, offered to show special damages from the loss of tenants on account of the cellars being in this condition. The court refused to receive the evidence, as proving any special damages, upon the ground that there was no claim for damages in the declaration for loss of tenants.

The result of this ruling led necessarily to that portion of his charge where he instructed the jury that, in case they found for the plaintiff, he could only recover for the damage to the wall and building, and not for the loss of the rental value of the building. If this ruling was correct, there was nothing left in the complaint, as the evidence shows, which would entitle the plaintiff to damages in case the jury found in his favor. The jury found for the defendant. The refusal to receive proof of special damages, under the circumstances, was clearly right. The principle was established among the first cases decided by the learned judges who first presided on the organization of this court. Each of those distinguished justices gave his individual opinion, and the law remains to this day as it was then pronounced (Shipman v. Burroughs, 1 Hall’s Superior Ct. R. 411-430).

Judgment must be affirmed, with costs.

Freedman, J., concurred.


author: By the Court.—Monell, Ch. J.

text:
    THOMAS E. FAIRFAX, Plaintiff and Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD CO., Defendant and Respondent.
    I. DISMISSAL OF COMPLAINT.
    1. Evidence, how to be considered on motion for.

      а. Every intendment and fair and legitimate inference and presumption must be made in plaintiff’s favor.
    б. If there is any conflict of evidence as to any material question of fact ; or if, in respect to any such question, the fair and, legitimate inference from the evidence is favorable to plaintiff’s cause of action; it is error to take the case from the jury.
    H. EVIDENCE.
    1. Baggage check.
    1. Contract, not implied from, when.

    When the passage ticket calls for a passage by a particular route, and there are letters on the check attached to the baggage of the passenger, indicating that it is to go by the route called for by the passage ticket, and the baggage is transported, not by that route, but by a road not forming a part of such route, no contract by the road not forming a part of such route, can be deduced from the fact that baggage with similar checks has frequently been carried over it.

      a. Such facts do not establish the check to be the regular check of company whose road does not form part of the • route, or that it was put by such company or its agent on baggage intended for transportation over its road.
    HI. CARRIER.
    1. Liability, as ca/rrier, for baggage, when it ceases.

    1. If the owner of baggage omits to call for it within a reasonable time after its arrival at its place of destination, the liability of the carrier as carrier will cease, and that of warehouseman attach.

      a. What is not a reasonable time.

    1. A space of three days is not.
    IV. WAREHOUSEMEN, LIABILITY OF.
    1. What sufficient to believe them.
    Where a piece of baggage was placed in the usual baggage-room, which was an inclosed room, in charge of a baggage-master, to which no one was allowed access except in the presence of such master, and remained there for some days, and was seen shortly before the owner demanded, but could not be found when the demand was made,
    HELD,
    1. That the warehouseman was not liable.
    3. He was not bound to show in what manner or by whom it was taken from the baggage-room, nor to account for it.
    3. Even if it wer a feloniously taken by a stranger, or one of defendant’s servants, yet the warehouseman not being negligent, such taking would not create a liability.
    Before Monell, Ch. J., and Sedgwick, J.

      Decided December 6, 1875.
    This was the second trial of an action to recover the value of a trunk and its contents.
    Upon the first trial the plaintiff had a verdict, which was set aside upon appeal (see 37 Sup'r Ct. Rep. 516). The facts, so far as they relate to the point then decided, are so fully stated in the report of the first appeal, that it is unnecessary to re-state them. Any new' or additional facts proved on the second trial affecting the points already decided, will be found in the opinion below.
    Upon the other point now decided and not included in the first decision, the facts are as follows:
    The trunk arrived at the defendants’ depot in Hew York between three and four o’clock on the afternoon of October 9, 1870. It was taken in charge, in the defendant’s baggage room, by an employee of Westcott’s: Express Company, uhder an agreement with the defendants to the following effect:
    That the express company was to occupy the said baggage-room for the receipt and delivery of the baggage of passengers arriving upon the trains of the defendants, and for no other purpose; that they would receive the baggage upon the arrival of each train, and thereupon give to the defendants a receipt therefor, designating each piece of baggage so received by the number of its check; that they would thereafter, when called upon, deliver said baggage to the owners thereof, respectively.
    The baggage-room is an inclosed room. The employee remained until six o’clock, when he left the trunk and baggage-room in charge of another employee of the express company. ÍTo one besides the-employees were allowed in or to come into the baggage-room. The trunk remained in the baggage-room in the custody of the persons in charge, during-the 10th and 11th of October, and until the morning of the 12th. When during the morning of the 12th, the check was presented, the trunk was not to be found. The employee in charge, and who had seen-the trunk just previously, could not state where it was, nor what had become of it. He said there was no one allowed there but himself. He could not tell that :any one came in. He believed no one came in; be kept everybody out except, those he had to allow tjiere to identify baggage; he was not and could not be sure •that no one came into the baggage-room that morning; he did not think there was.
    The trunk was not found. It had been taken from the baggage room, by some means or persons unknown to the person in charge.
    At the close of the evidence on both sides, the defendants moved to dismiss the complaint on the following grounds:
    1. That the defendants did not occupy the relation of common carrier to plaintiff and his baggage. 3. That it appeared that the piece of baggage in question, coming into the possession of the defendants at Troy, -checked to Hew York, the defendants safely carried it to the city of Hew York, and there had and retained it for delivery to the plaintiff, who failed to call for it within a reasonable time after its arrival, and that it subsequently disappeared without fault on the part of the defendants. 3. That after the arrival of the baggage, and having it ready for delivery to the plaintiff for a reasonable time, the defendants, after the lapse of such reasonable time, stored the baggage with West>cott’s Express Company, who were responsible, if anyone, for its loss.
    The plaintiff asked to be allowed to go to the jury upon the point, whether the defendants used ordinary care or not in the custody of the property.
    Also upon the question of fact, as to whether the defendants wrongfully delivered the property to any other party.
    Also upon the question whether the defendants, through their own negligence, delivered the plaintiff’s trunk to any other party.
    Also upon the question whether or not the relation of common carrier did not subsist between the plaintiff and the defendants upon all the testimony in the cause as to the course of business between the defendants and connecting lines.
    Also on the point whether, on all the evidence, the party or corporation checking the portmanteau in Montreal, was the agent of the defendant for the purpose of attaching to the portmanteau a check which entitled the plaintiff to have his portmanteau transported by the defendant as a common carrier over its railroad; and that the jury in deciding this question are to take into consideration the evidence given,
    (1.) As to the purchase of the plaintiff’s ticket. (2.) As to the fact that the defendant did receive the portmanteau so checked and transport it over their road. (3.) The evidence that the defendant frequently transported over its road baggage so checked. (4.) The evidence that the check on the portmanteau was the check of the defendant.
    Also the point whether the defendant, under some arrangement of connecting lines, received and transported as common carriers the portmanteau.
    Also the point whether the plaintiff called for his portmanteau within a reasonable time.
    Also the point whether the Grand Trunk Railway Company, or any of the connecting lines, delivered the portmanteau to the defendant without the knowledge or authority of the plaintiff.
    Also the point whether the baggage agent of the defendant at Troy had authority from the defendant to receive the portmanteau, and whether the defendant did then, and by the receipt of its servant, itself receive the portmanteau as a common carrier.
    Also the point of whether the defendant delivered its checks to the servants and agents of the Grand Trunk Railway Company in. Montreal, to be there used in- checking baggage.
    Also the point of whether, by any' arrangement with the Grand Trunk Railway and connecting lines, or by the usual course of business, the checking of the portmanteau over the defendants’ road was incidental to the contract of carriage of the plaintiff'.
    Also the point whether the checking of the portmanteau over the defendant’s road was in accordance with the usual and ordinary course of business.
    Also whether this was defendants’ check, and whether the defendants’ checks were placed in the hands of the corporation at Montreal, to use in checking baggage to Hew York.
    The court refused each of said requests, and to each refusal the plaintiff excepted. -
    The court thereupon, on the grounds stated by the defendants in the motion to dismiss the complaint, directed a verdict in favor of the defendant.
    The plaintiff excepted to such direction. The jury thereupon, under the direction of the court, found a verdict in favor of the defendant.
    From the judgment dismissing the complaint, the plaintiff appealed.

      Hammond & Stickney, attorneys, and Albert Stickney, of counsel for appellant, among other things, urged:
    I. The universal rule requires, that, if one of two parties must suffer from the unauthorized acts of an agent, the party must suffer who has clothed the agent with the authority, and enabled him to commit the error (Weed v. Panama R. R. Co., 17 N. Y. 362; Johnson v. Jones, 4 Barb. 369; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 61, et seq.). The defendant, if the Grand Trunk Railway has acted beyond its authority, has its remedy against the. Grand Trunk Company.
    II. When the defendant took the baggage at Troy, it was certain that some contract had been made with some passenger as to the carriage of that baggage. "The defendant must, then, be held to take the portmanteau under that contract (The Elvira Harbeck, 2 Blatch. 336; 2 Redfield Railway Cases, 218).
    III. But if this was not defendants’ check, they were guilty of a wrong in taking the portmanteau at all. And on refusing or failing to deliver, they are ■.absolutely liable as for a conversion, negligence or no negligence. The cases are clear and uniform on this point (Robinson v. Baker, 5 Cush. 137 ; Fitch v. Newberry, 1 Doug. [Mich.] 1).
    IV. If the check affixed was the proper check to ■send the article by boat, where the plaintiff’s ticket •carried him, then the portmanteau has been delivered to the defendant without the plaintiff’s knowledge or authority. And the plaintiff, in that case, by bringing this action, ratifies that delivery, and can hold the •defendant as a common carrier (2 Greenl. Evid. § 210; Sanderson v. Lamberton, 6 Binney, 129).
    V. If the defendant delivered the portmanteau to any person but the plaintiff', the holder of the check, the defendant is liable absolutely, as for a conversion, (Hawkins v. Hoffman, 6 Hill, 586; Powell v. Myers, 26 Wend. 591; Youle v. Harbottle, Peake, N. P. C. 49 ; Devereux v. Barclay, 2 B. & Alderson, 702 ; Wild v. Pickford, 8 Meeson & W. 443). Certainly, if such delivery to another person was made by the negligence of the defendant (Stephenson v. Hart, 4 Bing. 479). The check was not produced to the defendant. It is a certain thing, if the defendants’ testimony is true, that the portmanteau was delivered to a person who did mot produce the check. And it is nearly as certain as anything possibly can be, that it was delivered through the negligence of the defendant or its servants. The plaintiff had the right to go to the jury as to whether «this was so.
    VI. But admitting that the defendant never was a -common carrier they must do more than they have. They must prove, not only that it was a proper room, but that it was guarded in a proper manner. ¡Now the only witness they produce to prove the care on this point on the day of the loss, is Green. Green testifies that he had no one there to help him ; that he made all the deliveries with his own hands; that he delivered the portmanteau to no one, and he states positively that no one on that morning came into that room. And yet -the baggage was gone. His story is clearly impossible. And no explanation whatever is given of the way in which it disappeared.
    VII. Now the simple fact of the loss of the baggage being unexplained, was sufficient to entitle the plaintiff ■to go to the jury on the question of gross negligence (Steers v. N. Y. & Phil. St. Co., 57 N. Y. 1).
    VIII. Moreover, the defendants prove their care on the day of the actual loss, by one witness, Green. He is shown, on cross-examination, to tell a story which can not by possibility be true. It is not necessary that the plaintiff should call a witness to contradict Green. The defendants must prove their case by a credible witness. His credibility may be impeached on his own cross-examination as well as by witnesses called by the plaintiff. And the plaintiff lias the right to have the credibility of Green submitted to the jury. And this was specially asked (Stafford v. Leamy, 34 Superior Cl. 272; Conrad v. Williams, 6 Hill, 447; Koehucke v. Ross, 16 Abb. N. S. 344).

      Frank Loomis, attorney, and of counsel for respondent.
   By the Court.—Monell, Ch. J.

Upon the first appeal in this case, a majority of the court held that upon the facts then presented, the relation of passenger and carrier, between the plaintiff and defendants, had not been established; and that as the carriage of baggage was only an incident to the carriage of the passenger, the defendants were not liable as common carriers.

These propositions can not now be disturbed, unless upon the second trial the facts have been so far varied that they establish the relation which they failed to establish on the first trial.

Upon dismissing a complaint at the close of all the evidence, the court must be satisfied there is no dispute whatever in the evidence, which would require its submission to the jury. If there is no such dispute, then the law will pronounce the appropriate judgment.

Upon the motion to non-suit, the plaintiff is entitled to have the evidence taken as true, and also to have every intendment and fair and legitimate inference and presumption taken in his favor.

If, therefore, the evidence presents any conflict in respect to any material question of fact; or, if in respect to any such question, the fair and legitimate inference from the evidence is favorable to the plaintiff’s cause of action, it would be error to take the case from the jury.

Under the exposition of the law applicable to this case, as decided upon the former appeal, the only duty of this court now is, to see whether the facts proven on the first trial were essentially the same as those proven on the second trial. If they were, the former decision is stare decisis.

It is now claimed that certain facts, which the court upon the first appeal assumed to be established, have been changed upon the second trial. ' These facts are, that the trunk was to be taken with the owner, and he and his baggage to go over the same route; that the baggage was taken by the defendants’ baggage agent, through mistake or accident, without authority ; that the plaintiff made in effect a fraudulent representation when he checked his baggage, namely, that he intended a continuous trip through to New York. It was also assumed, that there was no evidence of any arrangement between the defendants and the Grand Trunk Railway, which would authorize any contract for the carriage of baggage by the defendants, without the passenger.

It is now insisted that the proof is different in these particulars, namely, that.it shows the check was the defendants’ regular check ; that there was no mistake or accident, and that there was no misrepresentation by the plaintiff.

In respect to the first fact, namely, that the check was the defendants’ regular check, I do not find it supported by the evidence. There was some proof that baggage, upon which there were similar checks, had frequently been carried over the defendants’ road. But the evidence did not establish that it was the regular check of the defendants, put by it or by its agents upon baggage intended for transportation over its road

The check in question, and similar checks, were put upon the baggage at Montreal, and such baggage sometimes, or frequently, passed over the defendants’ road.

In respect to the carriage by mistake or accident, the evidence was the same on each trial. The baggage-master at Troy received the baggage from another road, went with it to East Albany, and delivered it to the through train for New York.

Upon the second as upon the first trial, there was no evidence of any express misrepresentation by the plaintiff, but a misrepresentation to be implied from the purchase of a continuous trip ticket.

But the new evidence, giving it all the scope and significance claimed for it by the appellant’s counsel, does not establish the relation of carrier and passenger between the parties.

Except under some special contract, the carriage of baggage is an incident to the carriage of the passenger, and the carrier is not responsible unless the two concur.

In this case there is no proof of any special contract, either express or implied, which would create a liability on the part of the defendants. None was expressed, nor can any be inferred from any evidence given upon either of the trials.

It is, however, further claimed, that a liability may be implied from the check attached to the trunk, which some of the witnesses admitted, was a kind of check attached to baggage which sometimes, or frequently, was carried by the defendants ; and that the jury had a right from the evidence, and an inspection of the check, to infer that it was the check of the defendants ; and that from it a special contract might be implied. Not only did the passenger tickets express that the passage of the plaintiff was by the Peoples' line of steamboats, but the testimony of the witnesses, and the check itself, indicate that the baggage was to go by the same conveyance. It was a through check from New York to Montreal, and the letters H. R. & R. R. indicate, very clearly,6 ‘ Hudson River and Railroad,” meaning by steamboat to Albany, and thence by “ Saratoga and Rutland line ” of railroad to Montreal. A nd being used for the reverse passage, it signifies the same routes.

There was nothing in this evidence which required its submission to the jury. They could not have legitimately deduced from it a special contract by the defendants to carry the plaintiff’s baggage; and a verdict upon it in the plaintiff’s favor would have been unsupported.

Upon the whole, I am unable to distinguish the present from, the former appeal; and the decision then made must stand.

■ There is, however, another ground, upon which this judgment can be upheld, which is so far independent of the first ground, that it becomes a matter of no importance whether the relation of carrier and passenger existed or hot. For even assuming the defendants were carriers of the baggage, and had incurred the liability of common carriers, such liability was changed into that of warehousemen, and they can be charged only as warehousemen.

This question was briefly discussed in the opinion of the court upon the first appeal. But as it did not then receive the concurrence of a majority of the court, it remains an open question.

The facts are not now different, although the appellant’s counsel claims, that the defendants’ evidence of care in the custody of the property should, upon the question of negligence, have gone to the jury.

It is not, however, insisted that there was any contradiction in the evidence, but merely that it was improbable in itself, and insufficient to show proper care.

It is now well settled that the liability of a railway as a carrier, ceases upon the expiration of such reasonable time after the arrival of the baggage at its place of destination, as will enable the traveler to receive and take charge of it (Curtis v. Avon, Geneseo, and Mt. Morris R. R. Co., 49 Barb. 148; Burnell v. N. Y. Central R. R. Co., 45 N. Y. 184). .

In the last case, the baggage was not demanded until two days after its arrival, and the court held that the carriers’"liability had ceased, and that of warehouseman had attached.

A .warehouseman is held to the exercise of only ordinary care. The non-delivery of the property is sufficient to raise a presumption of negligence, and the burden is then thrown upon the warehouseman, to show that sufficient ordinary care had been bestowed on the property. If that is shown, the warehouseman is relieved from liability.

. In the recent case of Coleman v. Livingston (36 Sup’r Ct. R. 32), which has been affirmed by the court of appeals (56 N. Y. R. 658), the liability of a warehouseman, and the rules respecting the burden of proof, are so fully stated that I need not do more than to refer to it.

In the case before us, by the omission of the plaintiff for at least three days to demand his baggage, the liability of the defendants as carriers ceased. But they were still under obligation to see that it was • properly stored, and reasonable care exercised to prevent injury or loss, until it was called for (Burnell v. N. Y. Cent. R. R. Co., supra).

The question, therefore, is, Was there any negligence ■ by the defendants ?

Their failure to produce the trunk when demanded, primafacie established negligence and want of due care.

Did they remove the presumption % I think they did.

The evidence shows that all due, ordinary, and - proper care was bestowed upon the property. That it was not sufficient, was not the defendants’ fault. It was placed in their usual baggage-room, which was an enclosed room, in charge of a baggage-master, to which no one was allowed access, except in the presence of such master. It remained in such room for three days, and was seen on the morning, shortly before the plaintiff demanded it. When the demand was made it could not be found.

The defendants were not bound to account for it. Tt was enough that they had taken the usual and ordinary care, and that the loss was not attributable to their want of care. In what particular manner, or by whom it was taken from the baggage-room, it was not Incumbent upon-the defendants to show. It may have been feloniously taken by a stranger, or even by one ■of the defendants’ servants, yet if the defendants were not negligent, such felonious taking would not create a liability.

The care which the evidence shows the defendants bestowed upon the plaintiff ’ s property, was all which, under the circumstances, the law required, and fully repelled the presumption of negligence.

As the evidence was without contradiction, there was nothing for the jury, and the complaint was properly dismissed.

In examining this question, I have treated the liability of the defendants as not affected by their private agreement with the express company, and have regarded the latter as, at most, the mere agents of the defendants.

The judgment should be affirmed.

Sedgwick, J., concurred.


text:
    KATE A. PECK, Executrix, etc., Plaintiff and Respondent, v. JACOB COHEN, Defendant and Appellant.
    I. NEW TRIAL.
    1. Appeal from an order denying a motion for a new trial. MADE AT SPECIAL TERM ON A CASE, ON THE GROUND THAT THE VERDICT IS NOT SUSTAINED BY THE EVIDENCE.

      a. In such case, although the point was not raised at the trial,. either on a motion to dismiss the complaint, or by a request for the direction of a verdict, yet it may be considered both on the-motion and on the appeal, and if the evidence be insufcient, the judgment will be reversed.

    H. EVIDENCE, PRESUMPTIVE.
    1. Date. An instrument is presumed, in the absence of proof-TO THE CONTRARY, TO HAVE BEEN DELIVERED ON THE DAY OF4 ITS date; 6. g., A check will be presumed to have been. DELIVERED ON THE DAY OF ITS DATE.

      a. What not sufficient to overcome this presumption.

    A check dated October 10, was given to pay interest falling-due September 1, on a bond and mortgage; the check was probably handed to the book-keeper of the agent of the holder of the bond and mortgage; the book-keeper was not examined as a witness ; the agent testified that the interest was paid on September 1; that there was no indulgence or extension; that he received, no check for the payment of interest in October, that he had never seen the check before-the trial. But it appeared that the check dated October 10, was received “for the September interest, and that the-interest was not in fact paid until that check was paid..
    Held,
    insufficient to establish that the check was received prior to October 10.

      III. GUARANTY OF PAYMENT OF BOND AND MORTGAGE,. PROVIDED THAT MORTGAGEE SHALL WITHIN SIXTY DAYS AFTER ANY DEFAULT IN PAYMENT OF INTEREST' PROCEED WITHOUT DELAY TO FORECLOSE.
    1. Fokeclosube, when unnecessaby.

      a. When it is not commenced until after the premises have been sold under a decree foreclosing a prior mortgage, the referee’s-deed delivered, and the proceeds disposed pursuant to such decree.
    1. Liability of guarantor for costs.

      a. He is not liable for the cost of such unnecessary foreclosure of thé guaranteed mortgage.
    Before Monell, Ch. J., and Sedgwick, J.

      Decided December 6, 1875.
    Appeal from a judgment and order.
    The action was upon a written guaranty of payment-of a bond and mortgage, made by one Henry Smith to Cohen, the defendant, and by him assigned to the plaintiff’s testator. The assignment contained the following guaranty : “ And for the consideration aforesaid, I do hereby guarantee the payment of the principal sum and interest secured by said bond and mortgage to the said parties of the second part herein, their executors, administrators, and assigns, according to the terms and conditions of said bond and mortgage, provided the said parties of the second part, or their assigns, shall, within sixty days after any default in payment of interest on said bond and mortgage, proceed without delay to foreclose the same.”
    Subsequently, a prior mortgage upon the same premises -was foreclosed, and the premises sold, upon which sale, there was a surplus which the plaintiff received, but was not sufficient to pay the second mortgage.
    The bond and mortgage assigned was with interest from March 1, 1870, payable semi-annually, with‘the usual thirty days’ interest clause.
    Upon an alleged default in the payment of interest which became due and payable on September 1, 1871, the plaintiff within sixty days thereafter commenced an action for the foreclosure of said mortgage, obtained a judgment therein, and sold the premises. There was a deficiency of one thousand six hundred dollars and eighty cents, for which judgment against Smith, the mortgagor, was entered, execution issued, and returned unsatisfied.
    The principal defense was that there had been a prior default in the payment of interest, and an omission of the plaintiff to commence a foreclosure of the mortgage, within sixty days thereafter, which satisfied the guaranty, and the question arose upon the interest which fell due on September 1, 1870, which the defendant alleged was not paid until October 10, 1870. A brother of Smith, the mortgagor, testified that he gave his check dated October 10, 1870, on that day, for the interest due on September 1, but it was claimed by the plaintiff, that it was received' in September, and post dated.
    The question was submitted to the jury under an instruction from the court that if there was a default in the payment of the September interest until October 10, the defendant was exonerated.
    The jury found for the plaintiff.
    A motion for a new trial upon a case was made at special term and denied. Judgment having been entered, the defendant appealed from the judgment, and from the order denying a motion for a new trial.

      Mr. Lipman, for appellant.

      Mr. Bright, for respondent.

       This is not in conflict with Rowe v. Stevens (34 Sup'r Ct. R. 436) and Carnes v. Platt (Id. 361). In those cases the motion was-made on the Judge's minutes.

      This case answers the query in the head-note to Carnes v. Platt in the affirmative.

   By the Court.—Monell, Ch. J.

Upon the motion for a new trial, the question was presented of the sufficiency of the evidence, to sustain the finding of the jury, and upon the appeal from the order denying the motion, we are asked to examine the evidence, and see on which side the clear weight of it lies.

The motion in this case was made at special term, and not upon the minutes of the court, and is, therefore, not within the rule stated in Rowe v. Stevens (34 Sup'r Ct. R. 436), and Carnes v. Platt (36 Id. 361). We are at liberty, therefore, to look at the evidence, notwithstanding no request to the court to direct a verdict was made at the trial.

The question submitted to the jury was whether the interest due September 1, 1870, was paid within the thirty days allowed by the bond, and the question turns on the plaintiffs theory, upon whether the check of A. P. Smith, dated October 10, 1870, was a post-dated check, received before its date, and during September. The court instructed the jury if it was so received, and was received as payment of the September interest, it was sufficient to satisfy the condition of the guaranty.

There was nothing in the evidence, I think, to warrant any conclusion other than that the A. P. Smith check served to pay the September interest. Mr. Wandell, who held the bond and mortgage for the plaintiff, testified that the interest, which fell due on September 1, had been promptly paid, paid on September 1, in money—in cash. He afterwards qualified this, by saying it might have been paid by check, which he considered cash. This evidence, therefore, is insufficient to overthrow the very positive proof, that the A. P. Smith check was given and received for the September interest, and leaves the question of payment to be determined upon whether it was post dated, and received, in fact, prior to its date, and within the thirty days after the interest became due.

The only evidence that the payment was within the thirty days, was that of Wandell, before alluded to, and which was, that it had been promptly paid on September 1, by money or check. The plaintiff offered no other proof, and there were no corroborating or other circumstances to satisfy or strengthen the proof that the payment was on that day.

Smith, the drawer of the check, was a witness for the defendant, and testified that he was a brother of the mortgagor; that the check was delivered by him on the day it bears date—October 10, 1870,—to either Peck or Wandell, the payees.

The check was endorsed “ Peck & Wandell, per Jno. P. Kane.” The witness says he paid the check at the office of Peck & Wandell to one or the other, in the presence of their book-keeper. The witness had no-recollection of the day the checji was delivered, apart from the day of its date written upon the check, looking at which enabled him to say it was delivered on the day of its date.

The following is some of his testimony :

Q. What day of the month was it that you paid the check ?
A. The 10th ; I saw by the check.
Q. Is that your only recollection %
A. That is the means I have—the only means I have.
Q. That is all the means you have 1
A. Yes, sir. ■
Q. You have no recollection outside of that date ?
A. The check is all that guides me to the date of ' the payment.
Q. Have you any recollection whatsoever other than that afforded by this date on the check %
A. That covers the date, do you mean sir ?
Q. Yes.
A. I have not.
Q. You are not able to say, then, that it was paid on the 10th ?
A. Nothing only from that.
Q. You have no impression whether it was paid on the 10th in fact, from recollection ?
A. My impression is—I don’t know that I have any impression about it really ; I judged—that is my evidence—it satisfies my mind that I paid it then.
Q. That is not a precise answer to my question; I have a right, aside from this date, to know if you have any recollection of the fact of paying this check on the 10th ?
A. I have hot.

The stump of the check-book shows the date of the check October 10. There is a prior and three subsequent checks of the same date, to other persons. And one of October 11, between two of October 10.

Smith, the mortgagor, also testified that he accompanied his brother, the day the check was delivered, to the office of Peck & Wandell, and that it was the 10th day of October. This is some of his testimony :

Q. Now state to the jury how you know it was the 10th of October ?
A. I know it by the check and by the stub of the check-book; that is the only means I have of remembering that day particularly.
Q. You have no other recollection of it whatsoever?
A. No other recollection ; no, sir.

Wandell on being recalled said he had never seen the check until that day: that he had seen A. P. ■Smith at some time at his office. He was then asked:

Q. Did you on that occasion give any consent to extend the time for the payment of the interest due on September 1, or did you give any indulgence in that respect ?
A. No, sir. I never received any check for the payment of interest in the month of October.

He stated that Kane had. authority to endorse checks for them that were intended for deposit, and that the check in question was endorsed by him and deposited to the credit of Peck & Wandell. He also testified that their book-keeper always received the interest and gave a receipt, and endorsed it upon the bond.

It seems to me upon all this evidence that the jury was not authorized to find that the check of October 10 was received on any day other than that of its date. It is evident that that check paid the September interest; and yet Wandell says he never saw it, and never received it; and if it is true that, as he says, the interest was promptly paid on September 1, then it was twice paid, unless the October check was received on September 1. But of that there is no proof. Wandell does not say so. On the contrary his whole testimony repudiates any such pretense, for he expressly says he “ never granted any indulgence or any extension for the payment of the September interest.” The bookkeeper, who usually received the interest, and who may have received the check, and who might have told when it was received, was not called as a witness.

The evidence, therefore, of the check itself, with its date of October 10 unexplained, would bejpresumptive evidence that it was delivered on the day of its date, which presumption would need to be repelled by plaintiff, by proof that it was post dated. There is no such proof in the case.

The corroborative proof is also strong. The stump of the check and the testimony of the two Smiths, the fair weight of whose evidence, notwithstanding their want of personal recollection, is that the check was delivered on October 10.

Looking, therefore, at all the evidence and giving due weight to the fact that the Smiths had to refresh their recollections by looking at and being wholly guided by the date on the check, I am of the opinion that the clear weight of the evidence was with the defendant. A little evidence on the part of the plaintiff might have caused such a conflict as would have made it improper to disturb the verdict. But she gave none. The check, which was probably given to the bookkeeper, was presumptively, and according to the testimony of the two Smiths, delivered on the day of its date. This is not contradicted, except inferentially by Wandell, who says the interest was paid on September 1, but he also says there was no indulgence or extension. This evidence of Wandell, however, is so inconsistent with the uncontroverted fact that the interest was not paid until the check was paid,—although its prior receipt might operate as a payment for some purposes,—that he must have been mistaken in saying the interest was promptly paid on September 1.

The Smiths were disinterested. It was of no consequence to them, so long as the interest was paid, whether it was paid on September 1 or October 10, and there is nothing to discredit their testimony.

The foreclosure action of the second or guaranteed mortgage was quite unnecessary. The deficiency was found upon the foreclosure of the first mortgage, and the action upon the guaranty could have been maintained at once, without resort to the second foreclosure. But this only affects the amount of the recovery, which should be limited to the deficiency remaining after the receipt of the surplus moneys. In other words, the defendant should not be made to pay the costs of the second foreclosure suit.

I am of the opinion that the judgment and order should be reversed ; but as it is reversed solely on the facts, it must be on payment of the costs of the trial, in which event a new trial is ordered, but without costs of the appeal to either party.

Sedgwick, J., concurred.