text:
    Adaline R. Edington, Executrix, etc., et al., Appellants, v. The Ӕtna Life Insurance Company, Respondent.
    (Argued October 26, 1885 ;
    decided November 24, 1885.)
    In two applications for policies of insurance upon the life of.D., in answer to questions as to whether any other application for insurance had been made by the applicant, and if so with what result, the answer was “ Yes, and always successful,” and “ Yes, accepted.” By the policies the answers were made part of the contract, and if false, invalidated the same. In an action upon the policies, defendant proved that prior to the applications in question D. applied for a policy to the agent of another company, authorized to receive it, his application was submitted to a medical examiner of the company, who had attended upon D. professionally ; he declined to pass him, on the ground that he was not insurable. Of this fact D. was advised by the agent. Held, that the delivery of the application to the agent constituted and completed the application for insurance; and, as there had been an unsuccessful application, the answers were false and vitiated the policies.
    Appeal from judgment of the G-eneral Term of the Supreme Court, in the fourth judicial department, entered upon an order made the second Tuesday of June, 1883, which affirmed a judgment in favor of defendant, entered upon a. verdict directed by the court, and affirmed an order denying a motion for a new trial.
    This action was upon two policies of insurance issued by defendant, October 18, 1870, upon the life of Wilbur F. Diefendorf, and by him assigned to plaintiffs.
    The case is reported on a former appeal in 77 N. Y. 564. By the terms of each policy the proposal, answers and statements in the application therefor aré made part of the contract, and it is declared that “ if they shall be found in any respect false or fraudulent, then the policy shall be null and void.” A similar provision is also contained in each application. In each application is the following question : “ Has any application been made to this or any other company for assurance on the life of the party? If so, with what result ? ” In one application the answer is, “ Yes, and always successful.” In the other, “ Yes, accepted.” It appeared on the trial, that in 1863, Diefendorf applied for a policy to one Windsor, who was agent of another insurance company, and who was authorized to receive applications for insurance. Said agent gave to Diefendorf a blank application for a policy, which he filled up, signed and delivered to the agent, who handed it to the medical examiner of the company. Said examiner had previously attended Diefendorf professionally, and he stated to the agent that he could not pass the applicant, that he was not insurable, and an examination would be a farce. The agent communicated this conversation to Diefendorf, and he destroyed the application.

      F. O. Mason for appellants.
    The information acquired by a physician while treating a patient, necessary to enable the witness to prescribe, he is forbidden by statute to disclose. (Code of Civ. Pro., § 834 ; Grattan v. Met. L. Ins. Co., 80 N. Y. 281; Edington v. Mut. I. Ins. Co. ,67 id. 185 ; Dilleber v. Rome L. Ins. Co., 69 id. 256 ; Cohn v. Cont. I. Ins. Co., id. 300; Sloan v. N. Y. C. & R. R. R. R. Co., 45 id. 125 ; Edington v. Ӕtna L. Ins. Co., 77 id. 569.) The bald declarations of Diefendorf made, so far as the case shows, after one or both policies were issued, testified to by Eaplee, were erroneously excluded. (Swift v. Mass. Mut. I. Ins. Co., 27 N. Y. 282; Edington v. Mut. L. Ins. Co., 67 id. 185.) The court at General Term erred in holding that Diefendorf made an application for a policy of life insurance to the Mutual Benefit Life Insurance Company of Mew Jersey which was refused prior to the date of the policies in suit. (13 Hun, 554; Edington v. Ӕtna I. Ins. Co., id. 543.) The omission to state matter not called for by any specific or general question would not be a concealment and would not affect the validity of the policy. (Rawles v. Am. Mut. Ins. Co., 27 N. Y. 282 ; Mallory v. Travellers’ Ins. Co., 47 id. 52.)

      John Gillette, Jr., for respondent.
    A physician may give in evidence facts in regard to a patient not acquired or discovered while attending him in a professional capacity, or that were not necessary to treat him. (Code, § 834; Grattan v. Met. L. Ins. Co., 80 N. Y. 295; Stainton v. Parker, 19 Hun, 55; Andrews v. Mills, MS. of Hardin, J.; Crosby v. Day, 81 N. Y. 242.) The" court properly received the opinions of the medical witnesses as to the physical condition of the assured, as to whether he was at the time of the procuring of the insurance a healthy man, founded on either the knowledge of the witnesses of the assured, or from the facts testified to by other witnesses, none of the witnesses being disqualified by reason of having been at any time his attending physician. (77 N. Y. 566, 567; 1 Phillips’ Ev. [4th ed.] 777-781; 1 Greenl. Ev., § 440.) The court properly allowed several of the witnesses of the defendant to give in evidence the statements made by Diefendorf to them as to his diseases, health and physical condition before the policies were issued. (Swift v. Mass. Mut. Ins. Co., 63 N. Y. 186; Edington v. Mut. I. Ins. Co., 67 id. 185.)
   Finch, J.

The judgment in favor of the defendant has been affirmed by the General Term upon the ground that one defense pleaded was established without contradiction, and formed, a complete bar to the plaintiffs’ recovery. Upon a previous appeal to this court, and on the same state of facts as it respects the defense referred to, that result was reached, although a majority of the court placed their concurrence upon a different ground. (77 N. T. 564.) Undoubtedly the appellants had the right to deem the question open in this court, and seek to convince us that the doctrine of the prevailing opinion was incorrect. But we are not convinced. Windsor was the agent of the Mutual Benefit Insurance Company, and as such agent was authorized to receive applications for insurance; he was furnished with blank forms, which, when filled out and signed by the applicant and delivered to the agent, constituted and completed the application for insurance. Every thing that followed the application was an element of its result. Such an application Diefendorf signed and delivered to the agent. When that was done he had made an application to the Mutual Benefit Company, for insurance. No other act of his was needed. What the company through its officers and agents might do or omit to do with it constituted the result of the application, as to which a truthful answer was required. A false answer was given. The application was made and was not successful. If the truth had been told the present policy would never have been issued. The test is, not whether Windsor or the medical examiner had authority to finally reject the application. If they were utterly without authority to dispose of it, and so the company never acted upon it, at least there was an application to the company which was not successful and did not end in an accepted insurance. Our present consideration of the question leads ns to an approval of the views expressed on the former appeal.

The judgment should be affirmed, with costs.

All concur, except Danforth, J., not sitting.

Judgment affirmed.


source: Caselaw Access Project

author: Bugeb, Oh. J.

license: Public Domain

text:
    Elizabeth Ann Shutts, Respondent, v. German Fingar, Appellant..
    (Argued October 27, 1885;
    decided November 24, 1885.)
    No cause of action arises against an indorser of a promissory note payable upon demand, with interest, until after actual demand, and until such demand the statute of limitations does not begin to run as against the indorser.
    In order to hold the indorser, however, it must appear that a demand was made of the maker, or if more than one, and the note is not a partnership one, of each of the makers, upon a subsisting obligation; so that the holder upon payment by the indorser may deliver to him the note unimpaired by any act or omission on his part subsequent to the contract of indorsement.
    Where, therefore, the holder omits to make a demand until the liability of the maker, or one of several makers, has been discharged by the running of the statute, the indorser is thereby discharged.

      Trimble v. Thorne (16 Johns. 152), Wells v. Mann (45 N. Y. 327), distinguished.

      Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made July 2, 1883, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury.
    This action was brought against defendant as indorser of a joint and several promissory note dated March 19, 1866, for $500, payable on demand, with interest, made by Jacob Niver, James Ham and Norman Niver.
    Defendant became the owner of the note soon after its execution ; he indorsed and transferred it in April, 1868. Plaintiff became the owner in 1869. Interest was regularly paid upon it by Jacob Niver, one of the makers, up to April, 1875. In 1876 said Jacob Niver died. In March, 1877, plaintiff presented the note to the administratrix of the estate of said deceased maker and demanded payment, and on the same day demanded payment of the other makers, which was refused, and defendant was notified of such presentment, demand and non-payment. No demand was made prior to that time. The makers of the note were not copartners.

      John B. Whiibeck for appellant.
    Negotiable paper, payable on demand, matures at once, and to hold an indorser, demand and notice must take place within a reasonable time. (Furman v. Huskin, 2 Caines, 369; Kendrick v. Judah, 1 Johns. 319; Losee v. Bukin, 7 id. 70; Loomis v. Pulver, 9 id. 244; Sice v. Cunningham, 1 Cow. 397.) Such a note as the one in suit is due forthwith, and the statute begins to run immediately from its date. (Herrick v. Woolverton, 41 N. Y. 581; Wheeler v. Warner, 47 id. 518 ; DeLavallette v. Wendt, 75 id. 579; Howland v. Edmunds, 24 id. 307; Crim v. Starkweather, 88 id. 339.) A bill or note does not lose its negotiable character by being dishonored, and the indorsement, although made after dishonor, follows the nature of the original contract. (Leavitt v. Putnam, 3 Comst. 494.) In such case the note cannot be presented at maturity by the indorsee, and the contract of the indorser then is to pay on demand of the maker, his neglect or refusal to pay, and notice to the indorser within a reasonable time after the transfer. It is a note payable on demand. (Berry v. Robinson, 9 Johns. 121; Van Hoesen v. Van Alstyne, 3 Wend. 75; Grant v. Strutzel, 36 Am. Cas. 250; Thielman v. Greble, id. 267.) Upon a promissory note, payable on demand, the statute of limitations begins to run from the date and not from the time of the demand of payment. (Hirst v. Brooks, 50 Barb. 334; Edwards on Bills and Notes [3d ed.], § 774; Bartholomew v. Seaman,25 Hun, 69.)

      Samuel Edwards for respondent.
    The note was a continuing security, from which the defendant, as indorser, was not discharged by reason of the omission of the plaintiff to make an earlier demand. (Merritt v. Todd, 23 N. Y. 28; Payne v. Gardiner, 29 id. 146 ; Herrick v. Woolverton, 41 id. 587; Pardee v. Fish, 60 id. 265; Parker v. Stroud, 98 id. 379.)
   Bugeb, Oh. J.

We think the court below erred in applying the doctrine of Merritt v. Todd (23 N. Y. 29) to the facts of this case, and that its true solution is to be found in the rules prescribing the duties and obligations of a creditor to his surety. This court, in the case of Parker v. Stroud (98 N. Y. 379), following Merritt v. Todd, expressly reserved from the effect of the "decision, the question as to the liability of the indorser, when the maker had been released from liability, by the loches of the holder. The doctrine of Merritt v. Todd has been so long acquiesced in, and has been followed and approved in so many cases, that it would be impolitic now to permit the rule there laid down to be questioned or disturbed, and it must, therefore, be considered as settled law in this State that a note payable on demand, with interest, is a continuing security, and no cause of action arises thereon against an indorser until after actual demand.

The defendant is here sued as indorser of a demand note, dated March 19, 1866, made by Jacob Niver, James Ham and Norman Niver, payable, with interest, to Francis O’Coner or bearer. The defendant afterward became the owner and holder of the note, and in April, 1868, transferred it to one Potts, and at the request of Potts then indorsed it. Potts held the note about one year, when he sold it to the plaintiff, who has ever since remained its owner. Jacob Niver paid interest on the note annually until March, 1875, since when no payments have been made thereon. Jacob Niver died in 1876, and administrators of his estate were then appointed. In March, 1877, the plaintiff, after demanding payment of the note of the makers, James Ham and Norman Niver, and also of the personal representatives of Jacob Niver, and failing to collect it, notified the defendant of the fact and of his intention to hold him for its payment, and thereupon commenced this action in June, 1878.

The authorities noiv uniformly hold that the statute commences to run, upon a note payable on demand, in favor of the maker, at its date (Herrick v. Woolverton, 41 N. Y. 481; Wheeler v. Warner, 47 id. 519; Parker v. Stroud, 98 id. 379), and that the expiration of six years from such date constitutes a bar to an action thereon unless a renewal of the cause of action has been effected by partial payments or otherwise. The makers in this case were not partners, and occupied no such relation to each other as constituted the party making payment, in any sense, the agent of the other for such purpose, and it necessarily follows that the payments made by Jacob Niver did not renew the note as to the other makers, and they were, therefore, discharged from, liability thereon, several years prior to any demand of payment from them. ( VanKeuren v. Parmelee, 2 N. Y. 524; Schoemaker v. Benedict, 11 id. 176.)

It must also be conceded upon settled principles of law, that defendant, after payment of the note, would have no recourse for indemnity against any of the parties thereto, except upon the note itself, and if any of such parties were relieved from liability thereon, either by the act, or loches of the holder, the indorser lost his right of action against such party. The rule which, upon payment of a note, implies a promise by the maker to repay to the indorser the amount paid by him, proceeds upon the theory that the payment has been made at the request of the maker, and the cause of action arising in favor of the indorser, is based upon the act of payment, and not upon the note. (Brandt on Suretyship and Guaranty, §§ 176, 179.) Where, however, commercial paper is indorsed after its execution, to subserve the interests of the indorser, no such promise of repayment can be implied, and the only remedy for indemnity, from the prior parties is by resorting to the paper itself. (Brandt on Suretyship and Guaranty, § 180.) Upon payment of such obligation, an indorser is entitled to demand its possession from the creditor, with the right of subrogation, to all securities and remedies possessed by him against the prior parties thereon, unimpaired by any act or loches of such creditor. (Goodyear v. Watson, 14 Barb. 481; Clason v. Morris, 10 Johns. 524 ; Beardsley v. Warner, 6 Wend. 613 ; Daniels on Neg. Inst., § 1306 ; Townsend v. Whitney, 75 N. Y. 432.)

The obligation which a party assumes upon indorsing a note is, among other things, to pay it, in case the parties primarily liable thereon, after demand, neglect or refuse to do so. The demand stipulated for is an essential part of the indorser’s contract, and the same considerations which induce its requirement, also require that it shall be made upon an existing cause of action, and of parties who are legally liable to respond in damages for its non-performance. (Daniels on Beg. Inst., § 1308.) The contract, except in the case of parties originally incompetent to contract, is predicated upon the assumption that there is a legal liability against parties, upon whom the demand is to be made. A demand upon a party after he has ceased to be liable would be an idle ceremony and a fraud upon the meaning and- spirit of the indorser’s contract.

Except in the case of a partnership note, the demand must also be made upon each of the several makers at the maturity .of the note. (Gates v. Beecher, 60 N. Y. 518. It would be quite absurd to claim that a note could mature after the parties thereto had been discharged by the expiration of the period of limitation, and a demand upon such parties, after the bar of the statute had fallen, would not, therefore, be a compliance with the conditions of the indorser’s liability. It was held in the case of an indorser of a note secured by mortgage upon real estate, the lien of which was lost by the neglect of the creditor to record it, that the surety was discharged, the court saying that it worked a change in the terms of the surety’s undertaking. ' “He only guarantees the note as secured by the mortgage, and when the mortgage was destroyed his contract was no longer existent.” (Atlanta Nat. Bk., v. Douglass, 51 Ga. 205.)

From the foregoing considerations it would seem to follow that, in order to sustain the contention of the respondent, we would be required to hold that an indorser remains liable upon a note, after his principals have been discharged from their obligation upon it, and that his right of subrogation entitles him only, to the possession of a security rendered worthless by the neglect of the creditor. Where such consequences are produced by the direct action of the creditor all of the authorities concur in holding that it constitutes a good defense to the indorser, and it is difficult to see why the same consequences produced by the deliberate loches and inaction of the creditor should not lead to the same result.

There are cases holding that an indorser is not discharged by the delay of the holder in prosecuting the maker, at a time when the debt could be collected from him, and such remedy has become fruitless by the maker’s subsequent insolvency. (Trimile v. Thorne, 16 Johns. 152; Wells v. Mann, 45 N. Y. 327.) These cases proceed upon the theory that it is the privilege and duty of the indorser, after receiving notice of dishonor, to pay the note and enforce it himself, if he fears the impairment of the maker’s solvency through lapse of time. We have, however, been unable to find any case holding that an indorser can be made liable who has had no notice of dishonor, or opportunity to take up the note, where the liability of the maker has been discharged by the loches of the holder in allowing the period of limitation to run thereon.

The responsibility of the indorser for the loss occasioned by the bankruptcy of a maker, after the maturity of a note, is put upon him because of the opportunity which is afforded him of protecting himself, and when he is deprived of this opportunity by the neglect of the holder, we know of no principle of law which will hold him liable for the consequences of such a loss.

It is a general rule that whatever discharges the maker or acceptor of a bill or note discharges the drawer and indorser, who are sureties, for the contract which they undertook to assume thus passes out of existence by the act of the beneficiary. (Daniels on Neg. Inst., § 1306.) It is also said that whatever discharges a prior indorser discharges all subsequent indorsers, for the reason that he stood between them and the holder, and on making payment each one could have had recourse against him but from which his discharge precludes them.” The contracts of the parties to a note are said to be like the links of a pendant chain, if the holder dissolves the first every link falls with it. (Daniels on Neg. Inst., § 1307.)

It was held in the case of Beardsley v. Warner (supra), that if the creditor does any act impairing the surety’s claim against the maker it may be shown in defense of the surety. Barhydt v. Ellis (45 N. Y. 111) holds that where, by the laehes of the creditor, the surety’s means of indeminity are impaired, his liability is discharged to the extent of the loss sustained by reason of such neglect. The necessary implication from the rule thus laid down would seem to require his absolute discharge when the responsibility of an individual liable for the whole debt has been lost by the act of the creditor.

It is among the fundamental rules applicable to the relations of principal and surety that a creditor cannot vary or change the contract to the prejudice of a surety ; that he cannot extend the time of its performance, or release any security held there°for, or discharge any party therefrom, without thereby releasing the surety wholly or partially from his obligation. (Daniels on Neg. Inst., § 1308.) In Stewart v. Eden (2 Caines, 121), it was held where the holder released one of the makers of a note, reserving, however, his liability to the indorsers, that such release did not discharge the indorsers. But it was then conceded that if the release had operated to wholly discharge such maker it would have been otherwise.

While there are some qualifications of the general rules above referred to, there are none that I have been able to find excusing a creditor, for allowing the statute to run in favor of the principals, upon a note by which they are discharged from liability. The general rule applicable to such loches seems to be well stated in the case of Reese v. Barrington (2 Lead. Cas. in Eq., part 2, p. 373, cited in the note to Fell’s Law of Guaranty and Suretyship, 217). “ But although the creditor is not bound to take active measures to enforce payment of the debt, and may, therefore, stop short in those which he has taken, even when their further prosecution would have been successful, yet' he is not entitled to relinquish any hold which he has actually acquired on.the property or estate of the principal and which might have been made effectual for the payment of the debt. This is the necessary result of the rule that a creditor shall not arbitrarily shift the burden of a debt from the party primarily liable for its payment and impose it on another whose liability is secondary.”

We are, therefore, of the opinion that an indorser cannot be held upon a note payable on demand with interest, unless the holder can show a demand made of the makers upon a subsisting obligation against all of the parties thereto, and be able to deliver to such indorser upon payment by him the note, unimpaired as an obligation by any act or omission of the holder occurring subsequent to the contract of indorsement.

The judgment of the court below should be reversed and a new trial ordered, with costs to abide event.

All concur.

Judgment reversed.


author: Miller, J.

text:
    Erastus Corning, Respondent, v. James T. Walker, Appellant.
    (Argued October 28, 1885 ;
    decided November 24, 1885.)
    Where a party, who is excluded by the Code of Civil Procedure (§ 839) from testifying in his own behalf as to a personal transaction with a deceased person, upon -cross-examination of the adverse party draws out testimony in regard to such transaction, this does not bring him within the exception to the prohibition and permit him to testify; as in such case the adverse party is not “ examined in his own behalf ” within the meaning of the exception.
    In an action brought by plaintiff as assignee of an account for moneys alleged to have been loaned to defendant by a firm in which C., who died before trial, and plaintiff were partners, in which action, defendant, as a defense, alleged that the moneys were in fact paid to him for services rendered the firm, plaintiff offered in evidence the books of the old firm whereon the account appeared. He was also examined as a witness in his own behalf and testified that neither he nor the company ever authorized any money to be advanced to defendant by way of payment for his services ; in answer to questions on his cross-examination, he testified that he knew there could have been no arrangement between defendant and C., as to payment for defendant’s services, from what C. told witness. Held, that this did not authorize defendant to be examined as a witness as to an arrangement between him and C. under which he received the money in question ; that the cross-examination was not necessary to explain any thing testified to on the direct examination.

      Lewis v. Merritt (98 N. Y. 306), distinguished.
    Also held, it was competent for plaintiff to prove that defendant had not been on the pay-roll of the corporation for a number of years.
    It appeared that defendant had taken out patents for certain machines for making horseshoes, which he had invented. Plaintiff claimed that the firm and corporation had paid all the expenses of manufacturing the machines and various changes in them, under an agreement by which they were to have the use of the machines if the invention proved useful. Defendant claimed that the funds required for his personal expenses were to be included. Plaintiff was permitted to prove, under objection and exception, that large sums were expended in the manufacture which were charged to “ the horseshoe account,” while the moneys in question were charged against defendant in his individual account, which facts were well known to him. Held no error.
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made December 16, 1882, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 28 Hun, 435.)
    This action was brought' to recover on two accounts for moneys lent.
    The first account was for moneys alleged to have been advanced at different times between June 8, 1809, and February 23, 1875, to the defendant by a partnership known as “ The Albany Iron Works,” the partners being the late Erastus Corning and the plaintiff. The partnership being terminated by the death of the former plaintiff, the survivor assigned the account to Townsend Fondey, who assigned it to the plaintiff. The second account was for moneys alleged to have been advanced at different times between March 29, 1875, and October 24,1878, by a corporation known as “ The Albany and Rensselaer Iron and Steel Company,” which assigned the account to Townsend Fondey, who assigned it to the plaintiff. The answer set up that the moneys were had by the defendant as payments and not as loans. The theory of the defense was that defendant had invented certain machines for manufacturing horse-shoes, the use of which the company and the corporation were desirous of obtaining, and so agreed to pay the expenses, and while he was engaged in the inventions and in perfecting the machines advanced the moneys in question as. part of the expenses. Plaintiff conceded that the expenses of manufacturing and changing were to be and were so borne, but that defendant was to pay his own personal expenses, and that the moneys were advanced for that purpose. The books of the firm and the corporation were introduced in evidence, and plaintiff was permitted to prove, under objection and exception, that large sums were expended in manufacturing machines under eight patents which had been obtained by defendant which were charged in an account called “ the horse-shoe account,” while the moneys in question were charged to the defendant in an individual account against him. It also appeared that defendant knew of this manner of keeping the accounts.
    Plaintiff, as a witness in his own behalf, testified as follows: “Neither myself nor the company ever authorized any money to be advanced to him by way of payment for his services.” In answer to questions put to him on his cross-examination he testified, “I know there could have been no arrangement between defendant and the late Erastus Corning as to payment for defendant’s services, from what Mr. Corning told me, and I had entire charge of his business.” Defendant thereupon was called as a witness in his own behalf, and offered to show that in 1868 he made an arrangement with the deceased Mr. Corning, which was in substance that he was to procure the necessary patents and superintend the construction of the machines, the expenditures and a suitable salary to defendant to be paid by the Albany Iron Works; that the defendant was to draw out the salary, he wanted for his personal expenses, Mr. Corning reserving the right to stop him if he drew too much. This evidence was objected to as incompetent under section 829 of the Code of Civil Procedure, and was rejected. Defendant duly excepted.
    Plaintiff was also allowed to prove, under objection and exception, that defendant had not for the last sixteen years been on the pay-roll of the firm or the'corporation.
    Further facts appear in the opinion.

      Nathaniel C. Moak for appellant.
    The books of the Albany Iron Works, read in evidence by plaintiff against defendant, were evidence “ inferentially ” in connection with that given by Erastus Corning, Jr., and rendered defendant’s evidence competent to discharge himself from the liability thus established against him (Lewis v. Merritt, 98 N. Y. 210; Penney v. Orth, 88 id. 447; Marsh v. Brown, 18 Hun, 319.) That defendant proposed a clause settling prior differences or claims, and that plaintiff’s assignor refused to assent, was nothing more than a written instead of an oral proposition or negotiation for a settlement, and was incompetent and inadmissible. (Payne v. Forty-second Street R. R. Co., 40 N. Y. Super. Ct. 8, 14; 2 Whart. Ev., § 1090.) A proposed agreement, neither signed nor assented to, is inadmissible against either party, and its admission is ground for a new trial. (Flood v. Mitchell,
      68 N. Y. 507.) The erroneous admission or rejection of evidence which bore in the slightest degree upon the question at issue is ground for a new trial. (Carroll v. Dimel, 95 N. Y. 252; Anderson v. Rome, etc., 54 id. 334 ; Worrall v. Parmerlee, 1 id. 519; People v. Haynes, 55 Barb. 456.)

      Amasa J. Parker for respondent.
    The offer to prove by the testimony of the defendant what had been said between such defendant and Erastus Corning, deceased, was properly excluded. (Code of Civ. Pro., § 829.) The evidence that the money was lent is conclusive. (Black v. White, 42 N. Y. Super. Ct. 446.) .
   Miller, J.

No error was committed by the referee in the exclusion of evidence of defendant’s arrangement with Erastus Corning Sr., as to the terms under which defendant received the moneys for which the recovery was had in this action.

The evidence offered involved a personal transaction between the defendant and a deceased person and clearly came within the prohibition contained in section 829 of the Code of Civil Procedure. The plaintiff had offered in evidence the books of account of the old firm and of the corporation. The plaintiff had testified that neither lie nor the company ever authorizd any money to be advanced to the defendant by way of payment for his services. Upon a cross-examination by the.defendant’s counsel the plaintiff had also testified, among other things, “ I know there could have been no arrangement between defendant and the late Erastus Corning as to payment for defendant’s services, from what Mr. Corning told me, and I had entire charge of his business.’ ’ It is claimed that what plaintiff testified to on the cross-examination was necessary to explain what he had previously testified to bn his direct examination, and hence the evidence offered was competent. We think the testimony offered was not competent on any such ground-The defendant was not required to examine the witness in order to explain his testimony upon the direct examination, by introducing evidence as to the declarations of Mr. Corning Sr., and by doing so did not open the door to the introduction of conversations had by him with a deceased person. Even if it may be assumed that this testimony related to the same subject in regard to which the plaintiff had given evidence, it was not given by the plaintiff in his own behalf so as to authorize a contradiction of the same. It was drawn out on a cross-examination by the defendant’s counsel and cannot therefore be considered to have been given on behalf of the plaintiff and for that reason could not properly be contradicted. There is no rule which authorizes a party to contradict evidence given by his adversary, as to a transaction with a deceased person, which he has himself introduced, and the Code does not provide for any such case. The testimony being introduced by the defendant himself he was not authorized to contradict it by showing an interview with a deceased party in relation to the same subject.

It may be added that it is not apparent that the introduction of the books of the firm in connection with the testimony given by Erastus Corning, <Tr., furnished any ground for the cross-examination of the witness in reference to a conversation had between him and a deceased person, or rendered the evidence offered competent for the purpose of exonerating him from the liability established by the proof given. The testimony offered was indefinite and did not of itself include any conversation with a deceased party or purport to relate to the evidence which had been given, and in this respect it was also liable to objection.

The case of Lewis v. Merritt (98 N. Y. 209) cited by the appellant has no application.

The evidence that the defendant had not been on the payroll of the partnership or corporation for a number of years, was competent as a part of the res gestee and tended to prove that he was not in their employment.

Evidence was introduced and received under objection and exception to prove that large sums had been expended by the company in manufacturing different machines, which were charged to the horse-shoe account. This proof bore upon the question of fact to be decided. The defendant had previously proved that he had taken out eight patents for the different machines he had invented, and it had been proved, without objection, that the company had paid for all the machines and changes in them. The character and extent of the work and the distinction which was made between the horse-shoe account and the private account of the defendant, which were well known to the defendant, were circumstances relating to the transaction between the parties, and hence the evidence was competent. No other question demands comment.

The judgment should be affirmed.

All concur.

Judgment affirmed.


author: Danforth, J.

text:
    John Foley et al., Appellants, v. Gilbert M. Speir et al., Respondents.
    (Argued October 28, 1885 ;
    decided November 24, 1885.)
    Certain persons styling themselves the " Executive Committee ” of “ The Reform Association,” the object of which was to promote the election of such candidates for office as should be recommended by .them, hired rooms and made an estimate of such expenses as would probably be required. This included the rent for rooms, the service of a man in caring for them, and other items not included in the exceptions specified in the provisions of the statute (§ 6, tit. 7, chap. 130, Laws of 1848), which prohibits a candidate for any elective office from contributing money to promote the election of himself or other person except for certain specified purposes. A schedule of items whereon a portion of the aggregate was “ set down ” to defendant as his share, was shown to defendant, who had been nominated for an elective office, and he agreed to pay it. Expenses were incurred and money paid by plaintiffs, for the purpose' stated. In an action to recover the portion of the expense so agreed to be paid- by defendant, held, that the complaint was properly dismissed; that the contract and expenditures were in violation of said act ; also, the fact that a sum greater than the portion set down to defendant had been paid for purposes permitted by the statute did not authorize a recovery, as the agreement was entire, and the lawful consideration could not be separated from those which were illegal.

      Hurley v. Van Wagner (28 Barb. 109); Sizer v. Daniels (66 id. 432), distinguished.

      Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, entered upon an order affirming a judgment of the General Term of the Marine Court of said city, which affirmed a judgment in favor of defendants, entered upon an order dismissing plaintiffs’ complaint on trial.
    The complaint in this action alleged, in substance, that the plaintiffs, together with the defendant Averill, were the executive committee of a political organization in the city of New York known as the Reform Association,” and that the defendant Speir was a candidate for the office of judge of the Superior Court of the city of New York at the election held in November, 1873. That in October, 1873, in consideration of certain expenditures to be made by said executive committee in defraying the expenses for printing and the circulation of votes, handbills and other papers, and for conveying sick, poor and infirm electors to the polls, the said Speir promised to pay to such committee the sum of $2,000 as his proportion and contribution of such expenses. That said committee, in consideration of the “ promises,” paid for the above purposes $8,601.63 and upward, and said Speir by the terms of his said promise became indebted to said committee in said sum of $2,000.
    The material facts are stated in the opinion.

      Samuel Hand for appellants.
    It was error to hold the contract proved to have been made by the defendant, even assuming that he made it “ with intent to promote his own election ” to the judgeship, void as prohibited by the statute. (Laws of 1842, 135, § 6; 1 R. S. [6th ed.] 452.) It was sufficient to authorize a recovery on that contract to show that the plaintiffs had made expenditures to the amount of the contract for the lawful purposes contemplated by it. (Hurley v. Van Wagner, 28 Barb. 112 ; Sizer v. Daniels, 66 id. 432.) The rent of the rooms was a necessary incident to the permitted purposes. (Harley v. Van Wagner, 28 Barb. 112; Murphy v. English,
      64 How. 362; Sizer v. Daniels, 66 Barb. 432.) In England, actions to recover against candidates for Parliament for legitimate expenses of this character, for the necessary conduct of the canvass, not looking toward bribery or corruption of the voter, have been frequently maintained in the courts. (Grant v. Guinness, 17 C. B. 190; Norton v. Dickson, 5 Hurlst. & N. 637; Thomas v. Edwards, 2 M. & W. 215.)

      A. J. Vanderpoel for respondents.
    The transaction between plaintiffs and defendant Speir, as set forth in the testimony of plaintiffs, was illegal and void, because prohibited by statute. (1 R. S. [6th ed.] 452, § 6; Jackson v. Walker, 5 Hill, 27 ; Bell v. Quinn, 2 Sandf. 148; Barton v. Port Jackson, etc., Co., 17 Barb. 397; Morgan v. Graff, 4 id. 525 ; People v. Thornton, 60 How. Pr. 457; Murphy v. English, 64 How. 362; Harris v. Simmonson, 28 Hun, 318 ; Hurley v. Van Wagner, 28 Barb. 112; Sizer v. Daniels, 66 id. 432.) The contract being tainted with illegality as to part of the consideration is void as to the whole. (Saratoga Co. Bk. v. King, 47 N. Y. 87; Marsh v. Russell, 2 Lans. 340; Arnott v. P. & E. C. Co., 68 id. 558; Rose v. Truax, 21 Barb. 361 ; Bell v. Quinn, 2 Sandf. 148; Pars, on Con t. 381; Smith on Cont. 122; Chitty on Cont. 56.) Whether the illegality which vitiates the contract springs from statutory enactment or from grounds of public policy, the rule is the same. The contract cannot be enforced whether it be malum prohibitum or malum in se. (Pennington v. Kean, 7 Wend. 278.) The alleged contract is void, because -against public policy, and contra bonos mores. (Harris v. Simmonson, 35 Hun, 318; Gray v. Hook, 4 N. Y. 449; Rose v. Truax, 21 Barb. 361; Mills v. Mills, 40 N. Y. 543; People v. Thornton, 60 How. Pr. 457; Marshall v. Baltimore, etc., Co., 16 How. [U. S.] 314.)
   Danforth, J.

So far as appears the plaintiffs in October, 1873, composed a body styled “ The Reform Association,” which was brought into being and made complete in all its parts, both of membership and officers, when they “ came together and called themselves ‘ its executive committee.’ ” Its object was to promote the election of such candidates for office, irrespective of political considerations, as should be recommended by the association. Preparatory thereto they hired rooms and made an estimate of such expenses as would probably be required for that purpose at the then coming elections. A schedule of items was prepared, and of the aggregate, $2,000 “ set down ” thereon to the defendant as his share. This was shown to him the day after his nomination for the office of judge, and the evidence is that after looking it over, and some conversation, he said “ it was all right; I will pay it.” Expenses were incurred and money paid out by the plaintiffs on account thereof. This action was commenced in October, 1879, to recover the above sum of $2,000.

The answer of the defendant put the material allegations of the complaint in issue, and upon trial, after evidence had been given by the plaintiffs as to the matters above referred to, the kind and character of the services rendered, and the objects for which expenses were in fact incurred, the complaint was dismissed upon the ground that the contract and expenditures were in violation of the statutes which make it unlawful for a candidate for any elective office to contribute money to promote the election of himself or other person, except as therein stated. (Laws of 1842, chap. 130; chap. 6, tit. 7, § 6.)

No other question is presented upon this appeal, and in regard to it we concur in the conclusion reached by the trial court and affirmed by the General Term. The paper or schedule submitted to the defendant was not left with him, but retained by the plaintiffs and not produced upon the trial. They, however, testified; Foley saying, “we went on and ordered the printing and the other necessary work, and which we accomplished, we employed the necessary clerks and men to attend to the boxes, we ordered the printing and folding of ballots, and we performed all the necessary work, for which we paid out that amount of money for him and in fact more.” “ In all, the expenses were between $8,000 and $10,000.” This included $600 rent for rooms at a hotel, and it also formed part of the expenses to the payment of which the defendant agreed to contribute. Besides these there were also expenses in maintaining the rooms and running the association, and money paid for the general purpose of assisting the' election of their candidates, but in what particular way, or for what, the plaintiff could not remember.

Another plaintiff, McLaren, referring to the same interview with the defendant, says: The matter was talked over and a schedule was shown the judge of the probable expenses, and the amount set down for the j udge as his share of them was $2,000; and my recollection of that conversation is that he said it was all right and that he would pay it. Q. Toward what purpose % A. Toward the expenses of the association. Q. State what the expenses were for % A. The expenses to be incurred were for printing ballots, supplying one man at each polling district with those ballots for election, and for boxes to be placed in each district; I think there were some five hundred in all — the expenses were to include advertising, clerk hire, room hire, postage stamps — every thing incidental to the business of an election.” He also testified that the plaintiffs “had a book for each assembly district; each man took a district and enrolled the names of the voters in that district; that occasioned a great deal of work, and a considerable portion of these expenses; we had a book of each assembly district, and we took the name of each voter, his occupation, and residence; we sent out circulars saying that this enrollment would take place, and the parties would he waited upon.”

The plaintiffs had been paid by other candidates on account of these expenses, but there remained unpaid a balance of $2,842.09.

Both the statute' and the principles settled in Jackson v. Walker (5 Hill, 27) are decisive against the appellants. In that case the law upon the subject, after full discussion by learned and able counsel, was stated in the opinion of the court in a manner to which we think no just exception can be taken. It may have been an extreme case, but to it rules of construction were applied from which there should be no depart-lire. The act of 1829 (Chap. 373), was entitled “ An act to preserve the purity of elections.” With two specified exceptions it was declared to be unlawful to contribute money to promote an election of any particular person or ticket. The exceptions were, (1) for defraying the' expenses of printing; (2) the circulation of votes, handbills, and other papers. A third was added for conveying poor, sick or infirm electors to the polls. These provisions were re-enacted and now form part of the act of 1842 {supra.) Every thing else is forbidden. The complaint recognizes and states these three things as the cause of action. It is very clear the evidence goes beyond it. The agreement as proven includes the rent of rooms — the head-quarters of this self-appointed association for promoting the interest of particular candidates — and so comes within the very letter of the case cited. So is it within the express condemnation of the statute ; for it is not one of the excepted purposes. So generally the claim includes “any thing incidental to the business of an election.” One thing incidental to that event is procuring the attendance of voters at the polls,” and that is expressly prohibited. (Statute, supra, § 6, subds. 3, 4.) So, also, and for the purpose of procuring the election of the same candidates, was the payment of $1,000 to one of the plaintiffs for his services in taking charge of the rooms and running the association. Upon the plaintiffs’ showing the agreement included illegal and forbidden items. It would be difficult indeed to find a transaction which should present more elements of political corruption than the one devised by the plaintiffs. They present themselves to the public under the specious and attractive guise of a reform association, while they are in fact actuated by a desire for pecuniary profit, and are indemnified against expenses which, professedly are incurred in the cause of good government, by the obligations of individuals who are personally interested in the result. We think it is not only prohibited and made criminal by statute, but void because contrary to public policy and the welfare of the community.

The learned counsel for the appellants argues, however, that as more than $2,000 was in fact expended for permitted and lawful purposes, a recovery may be had for that, although other expenditures might not he allowed. The plaintiffs have no such option. The agreement proved is an entire and single one — to pay as part of the whole expenses a single sum. It must stand, if at all, on the illegal as well as the legal considerations, for the good cannot be separated from the bad. If we could find distinct engagements for the separate items, those which are legal might be enforced ; but that is not possible. Here is but one promise upon a consideration which is in part unlawful, both by statute and as against good morals. In Thalimer v. Brinkerhoff (20 Johns. 397) it is laid down as a fundamental rule that all contracts which have for their object any thing repugnant to the general policy of the law, or contrary to the provisions of a statute, are void, and it is held as well in law as in equity, ex turpi contraetu actio non oritur.

I have not overlooked Hurley v. Van Wagner (28 Barb. 1 2), nor Sizer v. Daniels (66 id. 132), cited by the appellants, but upon the question raised by this appeal, find nothing to make us doubt the correctness of the construction abo've given to the statute. In both the circumstances calling for decision were so unlike those now before us, that the judgment formed upon them cannot be regarded as conflicting with the one under review.

It should, therefore, be affirmed.

All concur.

Judgment affirmed.


author: Finch, J.

text:
    Henry Blumenthal, Respondent, v. Lyman G. Bloomingdale et al., Appellants.
    Defendants executed to plaintiff a written lease, for the term of four, years and seven months, of a basement under their store, covenanting to provide an entrance thereto by a staircase in the front part of the store. This covenant having been broken by defendants, it was subsequently agreed by paroi that in lieu of such staircase plaintiff should have the use of a stairway in another part of the store, with a right to use a portion of the store floor adjoining for the purposes of a sign and the display of goods. Defendants subsequently, and within a year after the tenancy began, removed plaintiff's sign and goods, and refused to allow him the use of the floor as agreed. In an action to recover damages held, that such substituted agreement was not void under the statute of frauds; that it was in legal effect a verbal lease of the stairway and adjoining floor, which, although it could not subsist for the full agreed term because of said statute, was good as a new contract for a year as there had been an entry and payment of rent, and inured as a tenancy from year to year ; and that, therefore, there was a cause of action.
    (Argued October 28, 1885;
    decided November 24, 1885.)
    Upon the cross-examination of one of plaintiff’s witnesses he testified that he attempted to negotiate with defendants a sale of plaintiff’s business. On his re-direct examination he was allowed to testify that, when plaintiff requested him to undertake the negotiation, he stated as a reason for his desire to sell, that defendants had obstructed him and he could not compete with them. Held no error.
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made May 28, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict.
    This action was brought to recover damages for alleged breach of an agreement.
    The defendants, as copartners in business, occupy the premises Nos. 926 and 928 Third avenue, New York city. In December, 1878, they leased the basement of the building to the plaintiff for four years and seven months, at a rental expressed. It was provided by the lease that the defendants might make such alterations in the store and basement as they should deem necessary and according to plans to be adopted ; and that upon the completion of the alterations, there should be an entrance to the basement by a flight of stairs from the front part of No. 926.
    The plaintiff’s evidence was to the effect that defendants, finding themselves unable to furnish the flight of stairs contemplated in the front part of the store, an agreement was made subsequent to the execution of the lease, by which, in consideration of the plaintiff waiving his rights to insist upon said stairway from, the front of the store, the defendants agreed to allow him the uninterrupted use of a staircase in the more interior part of their store and the privilege of displaying his wares around the staircase and walls. The failure to observe this latter agreement forms the gravamen of the plaintiff’s action.
    The further material facts are stated in the opinion.'

      Samuel Hand for appellants.

      Fred. Kurzmam, for respondent.
    No good ground for the motion to dismiss complaint being expressed, the judge’s mind not being called to any alleged error, he could do nothing but overrule the motion. (Code, § 999.) If the motion had bee.ii made in due and sufficient form, there is yet no order denying it, from which the defendant did or could appeal. (Howard v. Hayes, 47 Super. Ct. 89.) On an appeal from the judgment, only questions of law arising upon exceptions taken in the progress of the trial can be reviewed. (Code, § 1346 ; Boos v. World Mut. L. Ins. Co., 64 N. Y. 236.)
   Finch, J.

The defendants’ motion for a dismissal of the complaint, and their request to charge that the agreement sued upon was invalid, so far as the contention was-founded upon the statute of frauds, appear to us to have been properly refused. The plaintiff had a written lease of the basement which included an entrance by a staircase to be placed in the front part of defendants’ store, and which lease ran for the term of four years and seven months. There is evidence that the landlords’ covenant in this respect was broken; that they acknowledged their inability to supply the entrance contemplated by the lease; that a substituted staircase in a different position was agreed upon by parol as a performance of the covenant coupled, however, with a right of the tenant to use a portion of defendants’ floor adjoining the stairway for the purpose of a sign and of the display of goods. No specific objection to this evidence founded upon the statute of frauds was taken when the proof was offered; and there was no exception to the charge that after breach the terms of the lease could be modified or altered by a paroi agreement; and the sole contention was that the substituted agreement which formed the basis of plaintiff’s right was itself void as a lease for more than one year, or revocable as a mere license founded upon no consideration. The latter proposition is disposed of by the verdict of the jury. They were told that if they found no consideration for the permission claimed, and that it was a bare license or privilege, they should find for the defendants. We must assume, therefore, that the substituted paroi agreement was founded upon a consideration and was in legal effect a verbal lease of the staircase and so much of defendants’ store adjacent as was needed and agreed upon for signs and the display of goods, and that this new letting was by its terms for more than one year. It could not subsist for its full agreed term because of the statute, but nevertheless, there having been an entry into possession and a payment of rent, it was good as a new contract for one year, and inured as a tenancy from year to year. (Reeder v. Sayre, 70 N. Y. 184; Laughran v. Smith, 75 id. 209.) The removal of plaintiff’s goods and the destruction of his sign, which formed the principal grounds of the action, all occurred during this first year, and so there was a cause of action which prevented a dismissal of the complaint, and the new agreement or contract was not void.

We have examined the exceptions taken to the admission of evidence during the progress of the trial. Only one of them seems to require comment. The defendants, upon cross-examination of Elkin Blumenthal, a witness for the plaintiff, drew out of him the fact that on one occasion he sought to negotiate with defendants a sale of plaintiff’s crockery business, which negotiation failed. The purpose of this evidence, or the inference which the defendants sought to draw from it, is not very apparent. It was new matter, not at all growing out of the direct examination. It was possible to infer from it that plaintiff’s business was unsatisfactory and so without profit as to make a sale desirable, and that independently of any interference by defendants, since nothing of the kind was alleged in the negotiation. Upon the re-direct examination of the witness, he was allowed to testify, under objection and exception, that plaintiff, when he requested him to attempt the negotiation, stated as a reason for his desire to sell, that defendants had obstructed him, and he could not compete with them. The alleged reason for the offer of sale actually given to the selected agent was a part of the res gestae of the particular transaction made by the defendants themselves the subject of inquiry. If they were entitled to part of it plaintiff might prove the whole to prevent or rebut any adverse or damaging inferences. The answer, too, as the General Term suggest, beyond bringing out the true character and purpose of the attempted negotiation, tended to prove nothing more than what the plaintiff had already stated as a witness.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


text:
    Ilka A. Nemetty, Appellant, v. Joseph Naylor et al., Respondents.
    Where summary proceedings, instituted to remove a tenant holding under a lease executed by a firm, are founded upon an affidavit in which one of the members of the firm is described'as the lessor, he must be regarded as representing the actual lessor, and a judgment ther.ein against the lessee is to be considered as a judgment in favor of the firm.
    The informality does not invalidate the proceedings and judgment, and so is no objection to the judgment when collaterally brought in question ; it may only be taken advantage of on objections taken in the proceedings.
    Where the summons in such proceeding was made returnable December 10, which was Sunday, but in the copy served the return day was, stated to be December 9, and on that day the parties appeared and consented to proceed,, without any objection being taken on account of the mistake, — Held, that it was thereby waived, and the assent to proceed conferred jurisdiction.
    Where a justice, before whom such proceedings were instituted, in the record stated that the tenant “ appeared not,” but in a return to a certi

      orari wherein the proceedings were set forth in detail, it was stated that defendant appeared personally and with counsel and consented to a judgment against her, whereupon judgment was rendered as by default. Held, that the record was not conclusive where it came in question collaterally, but must be considered in connection with the return.
    (Argued October 29, 1885 ;
    decided November 24, 1885.)
    In an action to recover damages for an alleged breach of contract it appeared that plaintiff went into possession of certain premises under a written lease from J. N. & Co., a firm in which defendants were the copartners, for a year from May 1, 1876; that she paid the rent for two months, when certain verbal agreements were made between her and defendants to the effect that they were to make certain repairs and alterations, and when completed, plaintiff was to take a lease for a term of years at an increased rental, she to pay no rent while the repairs were being made, and to receive credit for the rent paid. It appeared that summary proceedings were instituted on behalf of defendants in December, 1876, to dispossess plaintiff because of non-payment of rent due under the original lease; that plaintiff appeared therein and consen ted to a j udgment which was entered as by default. Held, that said judgment was a bar to the action as it necessarily determined that plaintiff held only under the lease set forth in the affidavit, and that defendants were entitled to the possession; that if plaintiff was entitled to possession under the new agreement, no judgment of removal was authorized and she should have set it up and proved it, and not having done so, the judgment was conclusive that no other tenancy existed ; and, as plaintiff had no right to possession, she had no claim for damages.
    Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, entered upon an order made June 15, 1882, which affirmed a judgment in favor of defendants, entered upon a verdict.
    This action was brought to recover damages for an alleged breach of a contract to alter over certain premises and fit them for a school, and to execute to plaintiff a lease thereof for a term of years.
    The plaintiff in May, 1876, went into possession of a dwelling-house in the city of New York, belonging to the defendants, under a written lease from the firm of J. Naylor & Co., of which firm defendant was the copartner, for one year from May 1, 1876, at a rental of $1,000, payable monthly in advance. The rent for May and June, was paid. The plaintiff gave evidence tending to show certain verbal agreements between herself and defendant in June and July, 1876, whereby the landlords were to make extensive repairs and alterations to fit the premises for a school, the work to be finished by October 1, the tenants to pay no rent until their completion and to have the premises for ten years at an increased rent, receiving credit for the rent paid for May and June, and the cost of repairs done by her.
    It appeared that in December, 1876, summary proceedings were commenced in behalf of EL Naylor, as landlord, against the -plaintiff, to dispossess her for non-payment of rent, reserved in the written lease. Judgment was rendered therein against plaintiff, which defendants set up as a bar to this action.
    The further material facts are stated in the opinion.

      Everett P. Wheeler for appellant.
    To render an adjudication in a former suit a bar to a subsequent suit, the two suits must be between the same parties (including privies). (Goddard v. Benson, 15 Abb. Pr. 191; Case v. Reeve, 14 John. 79; Knauth v. Bassett, 34 Barb. 31; Brower v. Bowers, 1 Abb. App. Dec. 214; O'Connor v. Bagley, 3 E. D. Smith, 149 ; Bennett v. Leach, 25 Hun, 178; Scott v. Stebbins, 91 N. Y. 605; Atl. Dock Co. v. Mayor, etc., 53 id. 64; Detroit v. Houghton, 42 Mich. 459; Fifield v. Edwards, 39 id. 264; Freem. on Judgm. [2d ed.], § 171 a, §§ 161, 159.) A judgment is no bar where the point in controversy is a mere matter of inference from the first adjudication. (Steele v. Lord, 28 Hun, 27.) The record was not a bar to this suit, because the demands alleged in the complaint in this suit, which are against Joseph Naylor and Henry Naylor jointly, were no defense to the summary proceedings before the justice and were not proved therein. (Yates v. Fassett, 5 Den. 29; Kelsey v. Ward, 38 N. Y. 83 ; Brown v. Gallaudet, 80 id. 413; Morgan v. Powers, 66 Barb. 335 ; Le Guen v. Gouverneur, 1 Johns. Cas. 436 ; Knox v. Hexter, 42 Super. Ct. 8 ; People v. Kelsey, 1 Barb. 269; La Farge v. Mansfield, 31 id. 345 ; Dingan v. Hogan, 16 How. Pr. 164; 1 Bosw. 646; Jarvis v. Driggs, 69 N. Y. 143.) The oral agreements were independent of the written lease. Their object was never carried out. The lease was under seal. An instrument under seal cannot be modified or annulled by an executory parol contract. (Delacroix v. Bulkley, 13 Wend. 71; Allen v. Jaguis, 21 Wend. 628 ; Hasbrouck v. Tappen, 15 Johns. 200 ; Coe v. Hobby, 72 N. Y. 141.) The judgment was not a bar because the record affirmatively shows that the justice had not acquired jurisdiction to proceed judicially. In a legal view he acted only as a volunteer accepted by the parties to register the tenant’s consent to a removal. (Sagendorph v. Shult, 41 Barb. 102; 2 R. S. [Bank’s 6th ed.] 928.) In order that a judgment by default should bar a subsequent action, the cause of action must be strictly the same. (Wells on Res Adjudicata, 369 ; Van Alstyne v. R. R. Co., 34 Barb. 28 ; Sherwood v. Haight, 26 Conn. 432.)

      Albert Matthews for respondents.
    If the alleged agreement was made and was valid, and the plaintiff neglected to perform her part of it, or if the defendants fully performed their part of it, then the plaintiff has no cause of action here, and she had no defense to the proceedings in dispossession before the justice. (Burnett v. Scribner, 16 Barb. 621; Rapp v. Williams, 4 Super. Ct. 174.) If the agreement was valid, it operated at least as a modification of the original lease to the same extent as if incorporated therein, and it was a substitution pro tanto for the same ; and under it there was no rent due from the plaintiff at the time of the dispossession. (Van Rensselaer v. Penniman, 6 Wend. 578; Schifflier v. Carpenter, 15 id. 407 ; Allen v. Jaguith, 21 id. 634; Blanchard v. Truss, 38 N. Y. 227; Fish v. Cattenett, 44 id. 542; Proctor v. Thompson, 13 Abb. [N. S.] 342; People v. Rickerts, 8 Cow. 231; Lounsbury v. Snyder, 31 N. Y. 514.) The subject-matter of this action being, therefore, necessarily involved in the adjudication in the summary proceedings before the justice, his judgment is final and conclusive against the plaintiff upon all matters now sought to be litigated in this action. (Birkhead v. Brown 5 Sandf. 134; Gates v. Preston, 41 N. Y. 113; Brown v.
      Mayor, etc., 66 id. 385; Smith v. Smith, 85 id. 436; Pray v. Hegeman, 98 id. 351.) The circumstance that the original summons in the “ dispossessory proceedings ” was unlike the “ copy ” served, by being returnable on a different day (inasmuch as the parties appeared upon the lawful return-day named in the “copy,” and assented to the procedings) was immaterial and does not invalidate the judgment of the justice. (Code of Pro., §§ 723-4; Near v. Van Alstyne, 14 Barb. 230 ; Perry v. Tynen, 22 id. 139 ; Bradbury v. Van Nostrand, 45 id. 194; Pixley v. Winchell, 7 Cow. 366; Malone v. Clarke, 2 Hill, 659; Clapp v. Graves, 26 N. Y. 419 ; Gibbon v. Freel, 93 id. 962; McCoun v. N. H. & N. Y. C. R. R. Co., 50 id. 177.) The circumstance that the “ affidavit ” in the summary proceedings described the “landlord” of the premises and lessor in the written lease as “ H. Naylor,” is immaterial, and does not render the judgment any less conclusive as an estoppel upon the parties to this action. (Lawrence v. Runt, 10 Wend. 82; Bates v. Stanton, 1 Duer, 87.) Irrespective of the defense of estoppel by res adjudicóla, the alleged agreement, of which the alleged breach is the foundation of the plaintff’s supposed legal cause of action, appears to be wholly void by the statute of frauds. (1 R. S. 135, §§ 6, 8 ; Mechelen v. Wallace, 7 Ad. & Ell. 49; Thayer v. Rock, 13 Wend. 53; Rose v. Truax, 21 Barb. 376; Dung v. Parker, 52 N. Y. 494; Organ v. Steward, 60 id. 419.)
   Miller, J.

The question to be determined in this case is whether the record introduced on the trial by the defendant was a bar to this action ahdt the complaint properly dismissed on that ground.

We think that the adjudication in the summary proceedings was final and conclusive and is a bar to the plaintiff’s right to recover in this action. The judgment beyond any question settled the facts as to the tenancy existing between the plaintiff and the defendants; the non-payment of rent due and unpaid and the holding over after default in payment by the plaintiff, and, unless there was some invalidity in the proceedings which affected the authority of the court and rendered its judgment inoperative and void, or a want of jurisdiction over the parties, it is not apparent how the proceedings can be disregarded. The objection urged that the record was not a bar because the proceedings before the justice were not between the same parties who are parties to this action is without merit. The fact that the affidavit upon which the summary proceedings were founded described the landlord and lessor of the premises as H. Saylor is enough to show that he must be regarded as representing the landlords, and the judgment must be regarded as in favor o.f the landlords. The firm was bound by the action of one of its members, and is entitled to all benefits arising from the judgment. The subject-matter was identical and the parties the same in person, or by representation and privity. The “ H. Saylor” named was the representative of the defendants in this action. Although the lease, under which the plaintiff held, was in the name of “ J. Saylor & Co.” as landlords, the proceedings in the name of “H. Saylor” were not invalid unless objection was taken to this informality. This was not done upon the hearing before the justice and the identity of the parties was averred in the plaintiff’s complaint and by defendants in their answer, and was conceded by all parties upon the trial of this action, and the “ lease” and record” of the proceedings were also received in evidence without any objection whatever.

As the case stands, it cannot be maintained that the proceedings had to dispossess plaintiff were not actually between the same parties, and did not relate to the same premises and subject-matter which are in controversy in this action. Although it may be conceded that the plaintiff would not be bound to recoup the claims which are the subject of this action, if an action had been brought by the defendants to recover rent for the demised premises against the plaintiff, and a judgment for such rent would be no bar to the plaintiff’s action for damages, yet it cannot be denied, we think, that the adjudication in the summary proceedings was a final determination as to the rights of the parties to the premises under the lease pr contract existing between them. Either the plaintiff or the defendants had a right to the possession of the premises. If, under any agreement, the plaintiff had such a right she could not be dispossessed or removed. Any agreement which authorized her to keep possession was a perfect defense to the summary proceedings for her removal, and if such an agreement existed no judgment of removal was authorized. Such agreement not having been set up or proved, the plaintiff is not in a position to claim she had a right to the possession of the premises. She has had her day in court with full opportunity to be heard and to assert and protect her rights, and, having failed to do so at the proper time, the record of the proceedings, upon which she might have done so, is a bar to her right to recover in this action. The judgment is conclusive that no other tenancy existed than that which was claimed in the proceedings had, and also as to the rent due and unpaid and the holding over after default in its payment.

The plaintiff’s claim in this action rests entirely upon a verbal agreement which was inconsistent with the written lease under which the proceedings were had to remove her, which verbal agreement included a suspension of the payment of rent until certain alterations and repairs were completed. She proved that these were not done when she was removed under the proceedings had against her.

The judgment established the lease set forth in the affidavit which upheld the landlord’s right to the possession of the premises, and which was in entire conflict with any other or different agreement. The written and verbal contracts were antagonistic to each other and could uot stand together, and as the claim of the plaintiff results from the alleged paroi contract, the existence of which is in direct conflict with the judgment between the same parties, it cannot be enforced in this action.

The objection urged, that the justice did not obtain jurisdiction in the summary proceedings for the reason that the original summons was unlike the copy, being returnable on the tenth of December, 1876, instead of the ninth, did not render the proceedings before-the justice nugatory and of no effect. The error was a clerical one and did not affect the substantial rights of the parties. It could be waived by consent or amendment. At most it was an irregularity, and the voluntary appearance of the party in accordance with the copy summons served, without making any objection to the error in the original process, was clearly a waiver of the defect. The mistake appears, from the return of the justice, to have been caused by an inadvertence of his clerk, and his attention was not called to it on the hearing. On the contrary, the parties both appeared upon the case being called, the tenant in person and by her attorney, the latter presenting the copy summons served, which was returnable on the ninth, and stated that the tenant did not propose to offer any opposition to the proceedings but asked for a stay of the warrant for a few days, whereupon the usual judgment was then entered by default. Under the circumstances, the alleged irregularity cannot be reviewed in a collateral proceeding, and cannot be regarded as affecting the validity thereof. ■

It cannot be said, we think, that the plaintiff was not bound by the statements of the justice upon the return to the certiorari. She was a party to that proceeding, and the return is controlling so far as the rights of the parties affected are concerned. Although it appears from the return that the tenth day of December, 1876, was Sunday, it also shows that in point of fact the copy summons served was returnable on the ninth, and that the parties then appeared and consented to proceed, thus waiving the objection to the error now alleged, and it by no means follows that no jurisdiction was acquired by the justice. The assent of the parties that the summons was returnable on the ninth of itself conferred jurisdiction. The statement in the record of the justice that the tenant appeared not is not conclusive, and must be considered in connection with the return to the certiorari, wherein it is stated, among other things, that the justice rendered judgment as by default, although the parties really appeared and consented to the same.

The appellant cites the case of Jarvis v. Driggs (69 N. Y. 143) to sustain the position that the judgment is not conclusive as to the amount of rent due, and claims, therefore, that it cannot be conclusive as to the amount of damages in an action for a breach of an independent and subsequent agreement to make alterations. The answer to this position is that the judgment established a tenancy which had expired, and the plaintiff had no right whatever to the possession of the premises, and no claim for damages under any agreement in regard thereto.

There was no error committed on the trial, and the judgment should be' affirmed.

All concur.

Judgment affirmed.


author: Earl, J.

text:
    Oscar Waring, Respondent, v. Francis A. Waring, Appellant.
    (Argued October 30, 1885;
    decided November 24, 1885.)
    Where, in an action by a husband against his wife for a separation, the husband has judgment, the court has no power to,order an allowance to the wife for her support.
    The fact that the husband has received large sums of money belonging to the wife does not authorize the allowance,
    A provision in such a judgment awarding the custody of minor children to the husband is in the discretion of the trial court, and is not reviewable here.
    Appeal from judgment of the General Term of the Supreme Oohrt in the second judicial department, entered upon an order made December 11, 1883, which affirmed a judgment in favor of plaintiff, entered on the report of a referee.
    The nature of the action and the material facts are stated in the opinion.

      Calvin Frost for appellant.
    The defendant was entitled to a suitable allowance for her expenses and counsel fees in this action, and also to a suitable provision for alimony and support for herself and her children, pendente lite and after judgment. (Code, § 1769 ; De Llamosas v. De Llamosas, 2 Hun, 380; Strong v. Strong, 1 Abb. [N. S.] 358 ; Wood v. Wood, 2 Paige, 108; Griffin v. Griffin, 23 How. 189; Forrest v. Forrest, 25 N. Y. 518.) If the court shall be of opinion that the judgment of separation was properly granted, still the judgment should be modified by making a suitable allowance for the support of defendant and for the support and education of the children if the judgment shall be modified by giving the custody of them to her. (Perry v. Perry, 2 Barb. Ch. 311.) The complaint should have been dismissed. Defendant should have had judgment of separation. She should have been awarded the custody of the younger children and alimony and counsel fees, the proper amount to be ascertained on a reference for the purpose. (Hoffman on Referees, 191, 194.)

      James P. Sanders for respondent.
   Earl, J.

This was an action by a husband against his wife for a separation on the ground of abandonment and cruel and inhuman treatment. Upon the trial the evidence was somewhat conflicting, and the findings in favor of the husband by the referee, confirmed by the court, both at the Special Term and the General Term, conclude us. The proof showed a clear case of abandonment by the wife without sufficient justification, and even at the trial she testified that she had refused to live with her husband, and intended to carry it out.” The case against the wife for a separation was so clear that upon the argument before us her counsel stated that he did not expect or ask to have the judgment for a separation reversed, but he asked to have it so modified as to give the wife alimony and the custody of the two younger children.

In a case like this, where the husband has judgment for a separation, there is no power in the court to order an allowance to the wife for her support. (Code, § 1766; Perry v. Perry, 2 Barb. Oh. 311; Davis v. Davis, 75 N. Y. 221.) It is true that it appears that the husband took or received considerable sums of money which belonged to the wife. But that does not authorize the court to make to her the allowance claimed. If he still remains indebted to her for such money, she can compel payment by action.

As to the children, the court below on all the facts of the case exercised its discretion in awarding their custody to the husband until the further order of the court. In disposing of the custody of minor children the court consults mainly the welfare of the children. It is open to her- to satisfy the court, if she can upon any future application, that the welfare of the two younger children will be best promoted by placing them in her custody. Until she cari do so the judgment must stand as rendered. There were no material errors prejudicial to the defendant upon the trial in any of the rulings of the referee, and the judgment should, therefore, be affirmed, but without costs.

All concur.

Judgment affirmed.


author: Andrews, J.

text:
    The People, ex rel. Amelia M. Robinson, Appellant, v. Michael O’Keefe, Registrar, etc., Respondent.
    Certain lands in the city of Brooklyn were sold for unpaid taxes ; the purchaser executed to W. an instrument purporting to be an assignment of the certificates of sale, but did not deliver to him the certificates; this he had previously assigned and delivered to relator. The lands were redeemed as provided for by the city charter (Chap. 863, Laws of 1873) by payment to the registrar of arrears of the amount bid, with interest. The then registrar of arrears, defendant’s predecessor in office, upon application of W., who represented that the certificates had been lost, and upon his giving a bond indemnifying the city from loss, gave to him a check on the treasurer for the amount received. Thereafter the relator presented to defendant the original certificates of sale with the assignment, and demanded payment of the amount received on redemption, which was refused. In proceedings by mandamus to compel such payment, held that, assuming that the payment to W. was irregular and without authority, yet, as thereby the fund applicable to the payment wds exhausted, and under the scheme of the charter, it was not within the power of the registrar of arrears, or the other administrative officers, to pay the amount claimed.
    (Argued October 30, 1885 ;
    decided November 24, 1885.)
    Under said charter (§ 8, tit. 8), moneys paid to the registrar of taxes on redemption of lands sold for taxes constitute a trust fund for the benefit of holders of tax certificates, of which each holder is entitled to a definite share, and the shares of other holders may not be taken to make good his share in case it has been paid over to one not entitled to it; and where, by the act of the predecessor of a registrar, the portion of such fund applicable to the payment of a share has been exhausted, whether rightfully or wrongfully, the registrar is justified in refusing payment.

      It seems that in such case if the share has been paid out wrongfully the remedy of the person entitled thereto is by action.
    Appeal from an order of the General Term of the Supreme Court, in the second judicial department, made September 11, 1883, which reversed a judgment of Special Term awarding a peremptory writ of mandamus commanding defendant, as registrar of arrears of the city of Brooklyn, to sign a check on the treasurer for a sum paid in to redeem certain lands of the relator from tax sales.
    The material facts are stated in" the opinion.

      George B. Ely for appellant.
    The relator was entitled to payment of the amount called for by the certificates. (Laws of 1854, 879, § 26 ; Laws of 1862, 196, § 28; Laws of 1873, 1319, § 5; 1324, § 23; 1311, § 20.) The failure to file the certificates in the office of the street commissioner did not deprive the relator of the right to recover the money paid. (Chapmans. City of Brooldyn, 40 N. Y. 378; Laws of 1854, 880, §§ 29, 30 ; Ayres v. City of Brooklyn, 87 N. Y. 639; N. Y. & N. H. R. R. Co. v. Schwyler, 34 id. 83; Brainard v. N. Y. & H. R. R. Co., 25 id. 500 ; Holbrook v. N. J. Zinc Co., 57 id. 623.) The tax certificates were assignable. (Brevoort v. City of Brooklyn, 89 N. Y. 128.) It was competent to prove as part of the res gestee the fact that the paper was filed in. the registrar of arrears’ office; that a receipt from Wheeler was attached to it and payment of the redemption money to Wheeler. (Foster v. Beals, 21 N. Y. 247.) A merger never takes place against the interest of the party, nor when it is not intended, nor against equity. (Smith v. Roberts, 91 N. Y. 475; Payne v. Wilson, 74 id. 348 ; Sheldon v. Edwards, 35 id. 279.) An illegal tax levy is a cloud upon title, to remove which suit may he brought. (Rumsey v. City of Buffalo, 97 N. Y. 114.) It is no answer to say that the city has wrongfully paid the money to a stranger on his mere claim. (Bk. of Commonwealth v. Mayor, etc., 43 N. Y. 184; Schwinger v. Hickock, 53 id. 280; Newman v. Supervisors, 45 id. 687.) The duties of registrar are ministerial. Mandamus is the proper remedy. Laws of 1873, 1378, chap. 863, tit. 19, § 27 ; Laws of 1873, 1324, chap. 863, tit. 8, § 27; People v. Supervisors, 10 Wend. 366; People v. Comptroller, 77 N. Y. 45.) The delivery of the certificates with the assignment in blank signed constituted a valid transfer. (Holbrook v. N. J. Zinc Co., 57 N. Y. 623 ; Brainard v. N. Y & H. R. R. Co., 25 id. 496; N. Y. & H. R. R. Co. v. Schuyler, 34 id. 82.)

      John A. Taylor for respondent.
    Where evidence of title is produced, the nou-production of the certificate of sale will not justify the registrar of arrears in refusing to pay moneys received by him in redemption from the sale. (Ayers v. City of Brooklyn, 24 Hun, 234; 87 N. Y. 639.) The failure of Wheeler to produce the certificates was insufficient as matter of law to put the registrar upon inquiry as to whether they had been assigned to any one else. (Foster v. Beals, 21 N. Y. 247; Van Keuren v. Corkins, 66 id. 77.) The registrar, in preparing and signing a check in payment of moneys received in redemption of tax sales, exercises powers of a g'wasi-judicial character. (Laws of 1873, chap. 863, p. 1324, tit. 8, § 23 ; High’s Extraordinary Legal Remedies, §§ 46, 47; People v. Leonard, 74 N. Y. 443; Rowland v. Eldridge, 47 id. 457.) The relator failed to show title to the certificates in question. (Robinson v. Williams, 22 N. Y. 382.) The writ should have been refused by reason of the relator’s great loches. (High’s Extraordinary Legal Remedies, § 269; People v. Seneca Common Pleas, 2 Wend. 264; People v. Delaware Common Pleas, id. 256; People v. Syracuse, 78 N. Y. 56.)
   Andrews, J.

The duty sought to be enforced in this case by mcmdamus is prescribed by section 23, chapter 863 of the Laws of 1873, known as the city charter of Brooklyn. That section makes it the duty of the registrar of arrears, upon the application of the holder of a certificate of sale of lands for taxes, which have been redeemed from the sale, to be repaid the amount bid with interest, to examine the case, and, if found to be correct, upon surrender of the certificate, to prepare and sign a check on the treasurer for the amount received “ in said case,” and after procuring the counter-signature of the comptroller, to deliver it to the applicant. The lands now owned by the relator were sold for taxes February 19, 1861, and certificates of sale were duly executed to one Feeks, the purchaser, who on the 27th day of February, 1862, executed and delivered to one Wheeler an instrument purporting to be an assignment of the certificates, but it was found by the trial judge that the certificates were never delivered to the assignee. The relator, on the 14th day of August, "1874, she then being the owner of the lands embraced in the certificates, redeemed from the sale by paying to the registrar of arrears the amount for which they had been sold, with interest, at the rate prescribed by the charter. On the 13th day of August, 1876, the then registrar of arrears, upon the application of Wheeler, as assignee and owner of the certificates, by virtue of assignment from Feeks above referred to, gave to Wheeler his check, countersigned by the compjtroller, for the amount received from the relator on the redemption, which was paid by the treasurer. The certificates were not surrendered by Wheeler to the registrar, trar, h|e claiming that they had been lost. The assignment to Wb.ee-er was" filed in the registrar’s office the day the payment to Min was made, and the registrar gave the check, relying upon the assignment and the representation of Wheeler that the certificates had been lost, but he took from Wheeler a bond indemnifying the city of Brooklyn against loss or damage by reason of such payment. Thereafter, on the 16th day of January, 1882, the relator presented to the registrar of arrears the original certificates of sale, with written assignments indorsed thereon from Feeks,-in blank, and without date, and demanded payment to her as assignee of the certificates of the amount paid by her as owner of the land, August 14, 1874, on the redemption from the sales described in the certificates, which was refused. The trial judge found that the relator became the owner of the certificates in 1862 or 1863, prior to the assignment to Wheeler, and held that the payment of the redemption money to him, although made without notice of the relator’s rights, was without authority, being unaccompanied with the surrender of the certificates, and constituted no defense in this proceeding. We are of opinion that the order of the General Term, reversing the judgment, should be affirmed upon the ground that the fund applicable to the payment of the relator’s claim was depleted and exhausted by the,, payment made to Wheeler; and that assuming that that payment was irregular and without authority, nevertheless under the scheme of the charter, it rendered it impossible for the registrar of arrears, or the other admininistrative city officers, to pay the relator the amount claimed. The funds of the city are by the charter divided into five classes, the fifth one', being the redemption fund, comprising all moneys received for the redemption of real property sold for taxes and jassessrnents, etc., and the charter prohibits the use of one futjd for the purposes of any other, except as specially provided thterein. (Tit. IV, §§ 6, 11.) The moneys paid to the registrar of arrears on the redemption of property sold for taxes constitute a trust fund for the benefit of the holders of tax certificates, and to reimburse them for the purchase-money/ paid, with interest. This is clear from the provisions of section 8, title VIII, in connection with the provisions already referred to. The money paid on redemption is, by the terms of section 8, title VIII, paid to the registrar for the use of the purchaser at the tax sale, or his assignees, and by section 23 of the same title it is the amount received “ in such case ” which is to be returned to the purchaser in case of redemption. The redemption fund in the hands of the treasurer represents the aggregate of redemption moneys, of which each purchaser whose purchase has been annulled by redemption is entitled to a definite share. The share of the relator has been paid to another claimant. The shares of other persons having an interest in the redemption fund cannot be taken to make good the relator’s share, assuming that it was paid over to the wrong person. It was paid under a claim of right, and the payment took from the redemption fund the part which belonged to the relator. The registrar of arrears' cannot correct the mistake. He was justified in refusing payment to the relator, because the fund applicable to it has, by the act of his predecessor, been taken from his control, and whether rightfully or wrongfully, is, we think, in this proceeding, of no consequence. The relator, if she was entitled to the fund, has doubtless a remedy by action. But the remedy by mandarrms would be fruitless.

The order should be affirmed.

All concur.

Order affirmed.