text:
    Henry H. Snelling, plaintiff and appellant, vs. John T. Howard, survivor, &c. defendant and respondent.
    1. If the maker of a" promissory note does not sign as agent, or if by the terms of the note it do not clearly appear that he is an agent, he will be deemed to have contracted in his personal capacity, even though he discloses bis agency to the payee.
    2. This principle is applicable to ordinary agencies, but in its application to ships’ husbands, is still stronger. Thus where coal was purchased by ships’ husbands, for a line of steamships, and their own notes given for the price, in the usual form, signed with their firm name of “ J. H. & Son,” and there was nothing upon their face to indicate that the makers were not to be held responsible as principals; Held that they were personally liable.
    3. Held, also, that the fact that the makers of such notes were co-owners of the steamships, and as such jointly liable with the other owners, did not change the liability which they voluntarily assumed, when they gave their individual notes for a joint debt; nor did such part ownership affect the position which the makers occupied as ships’ husbands.

      4. That the makers of the notes being the ships’ husbands, and having, as such, personally assumed the debt, that discharged their co-owners from liability upon the notes.
    (Before Robertson, Ch. J., and Monell and McCunn, JJ.)
    Heard December —, 1867;
    decided May —, 1868.
    This action, was upon two promissory notes for $3000 each, dated April 10, 1850, payble eight months after date to the order of H. B. Tebbets, and made by “ J. Howard & Son,”of whom the defendant was survivor. The complaint alleged that the notes were duly indorsed and delivered to the plaintiff.
    The answer, first, alleged that the plaintiff was not at the commencement of the action the owner and holder of the notes, but they were owned by one Isaac T. Smith, who was the real party in interest. For a further defense, the answer alleged that the notes were given for coal purchased for the use and on account of the steamships called the Sarah Sands, Hew Orleans and northerner, and for the owners and charterers thereof, by the firm of J. Howard & Son, which steamships formed a part of a line which ran in connection with other steamships to and from the city of Hew York to Chagres on the Atlantic coast, and to and from Panama to San Francisco on the Pacific coast, and that at the time said notes were given, certain persons, namely, Charles Morgan, Solomon B. Stone, Edward Mills, John H. Harbeck, William H. Harbeck, Jacob H. Vanderbilt, Joseph Howard and the defendant, were the owners of the “ northerner ” and that Edward Mills, J. D. Wood, James E. Zuntz, Thomas C. Doremus, John M. Hixon, Joseph Howard and the defendant were the owners of the “Hew Orleans;” and that Charles Morgan, Solomon B. Stone, Edward Mills, James J. Jarvis, Joseph Howard and the defendant, were the charterers of the “ Sarah Sands;” which several vessels were run for the joint use, benefit and account, and at the risk and expense of said owners and charterers respectively. That J. Howard & Son were authorized by said owners and charterers to and did act as agents or ships’ husbands in the purchase of coal and other supplies for said vessels, all of which was done by them under their firm name of J. Howard & Son. That, as such agents, and not individually, nor for their own account, but for account of said several ships, they did purchase for the use of such ships a quantity of coal, and gave therefor the said two promissory notes; all of which facts, it was alleged, were known to said Isaac T. Smith at the time of the making of said notes, and also to the plaintiff The answer then averred that the defendant was only liable on said notes jointly with said owners and charterers, whom the defendant insisted should be made parties.
    The action was tried before Justice McCura and a jury; who, at the close of the evidence, dismissed the complaint, on the ground that the evidence showed that the notes were given for the benefit of the owners and charterers of the steamships, and not for the individual debt of the defendant, and refusing to submit any question of fact to the jury, although requested so to. do by the plaintiff’s counsel.
    The evidence which it was claimed established the defense, was the testimony of the defendant Howard, and the original complaint. The original complaint, which was duly verified by the plaintiff, alleged, substantially, all the facts set forth in the defendant’s answer, namely, that the said several persons were the owners and charterers respectively of the the several stemships of which the said J. Howard & Son were the agents That the said promissory notes were made by said J. Howard & Son, as such agents, on behalf of such owners and charterers, and were given for coal purchased by said J. H. & Son and shipped to San Francisco, for said steamers, anrl for the freight thereon; which coal was purchased and freight contracted by said J. H. & Son for the use of said steamers.
    In such original complaint the said several owners were made parties defendants. Subsequently the complaint was amended by striking out all the defendants .except John J. Howard, as survivor of J. Howard & Son, and also all the allegations therein, except the making, &c. of the said two notes.
    The defendant, who was examined as a witness, testified that J. Howard & Son were part owners and ships’ husbands of the said line of steamers; that the several persons named in the answer were the other owners of said ships respectively. That said notes were given for coal and freight on coal shipped to the Pacific for the use of such line of steamers. That said J. Howard & Son, as such' ships’ husbands, had the entire control of the ships ; they decided where and when they should go; what the price of passage should be ; they purchased the supplies and the coal, and it was delivered to the ships as required, for which they received two and a half per cent commissions. They kept a coal account, in which they charged all the coal sent to the Pacific. Bach ship, when she took any coal, was charged with it at its cost; the amount of coal being ascertained from a memorandum sent by their agent. He further testified that for the coal purchased for the Pacific, they usually gave the notes of J. Howard & Son. That each of said ships was run for the benefit of the owners thereof, and separate accounts kept.
    There was other evidence showing that the accounts of several ships forming said line wrere kept separate; that the arrangement was that J. H. & Son were to furnish all the coal and supplies, and to receive all the earnings of' the ships, and a commission of two and a half per cent-.. From the judgment of dismissal the plaintiffs appealed.

      H. H. Anderson, for the plaintiffs, appellants.

      S. P. Nash, for the defendants, respondents.
   By the Court, Monell, J.

As I understand the ground upon which the learned justice who tried this action, placed his decision in dismissing the complaint, it was, that the' purchase of coal, which formed the consideration of the notes, was made by J. Howard & Son, for the use of the several steamships of which they were the agents, and was, therefore, the joint debt of themselves and the other owners; and assuming that the clear weight of the evidence established such defense, there was nothing for the jury to determine. Putting his decision upon that ground alone, we must presume that he did not regard the evidence bearing upon the plaintiff’s ownership of the notes, as sufficient to invalidate his title.

The only questions, therefore, to be examined are, first, whether the defendant could avail himself of such defense ? and second, whether the evidence in support of it is so preponderating as to-justify its withdrawal from the jury.

If I comprehend the answer and the proof given in its support, they establish a joint liability of the defendant and the other owners of the steamships, but do not make out a partnership. . (Pars, on Part. 548, 549.) The allegations are that the coal was purchased for the use of the several ships, by the defendants, as ' the agents of the owners. Such a purchase and for such a purpose, would render all the owners jointly liable, and all would be required to be parties to an action to recover the debt. But this action is not to recover the original debt, but upon two promissory notes given by the defendants individually for the purchase price of the coal and the freight thereon.

To let - in any defense which would defeat a recovery upon such notes, it was necessary to impeach the plaintiff’s title by showing that he was not a bona fide holder; for if he received the notes for value, without notice, the facts now insisted upon would not constitute a defense.

The only evidence relied upon, as establishing notice to the plaintiff, is contained in the original complaint, the sufficiency of which I will presently consider. Smith, from whom the plaintiff received the notes, testified, substantially, that he purchased them from Tibbitts the payee, before maturity, without any notice or knowledge that they were given for a joint debt of the several owners. And the defendant did not pretend that Smith had any such notice, and wholly failed to furnish any proof that would impair the plaintiff’s title as a bona fide holder, unless the original complaint funishes such proof. It was claimed, however, that such original complaint, in which ■ all the owners were parties, and which was verified by the plaintiff in the usual manner, contained an admission of all the facts now'set forth as a defense to the action, and conclusively proved notice to the plaintiff of the origin and consideration of the notes.

The notes were given by and in the name of J. Howard & Son, and the most that was or can be claimed by the defendants is, that they were given for the joint debt of the several owners of the steamship line. It was not alleged in the answer, nor was any proof given, that the several owners of the ships were in partnership. On the contrary, it appeared, very distinctly, that the firm of J. Howard & Son, was composed of the defendant and Joseph Howard, and that they gave'the notes in their firm name, as the agents and ships’ husbands of the line, and for the benefit of the owners thereof.

The question then arises whether the defendant can insist that his co-debtors should be made parties to this suit?

Independently of the objection which I will presently state, it seems to me the defendant would encounter this difficulty—-that the owners of the several ships forming the line were not the same. The coal was purchased for all the ships and furnished to each, as required. It was not sold to either company; nor was it sold to all the companies, so as to create a joint liability of all the owners. Each company might be accountable for the portion it received, if the vendor had the means of ascertaining such portion, but such means could be obtained only through the vendees, if they chose to furnish it. The vendor could not recover it. But I apprehend if the attempt should be made to collect from the several companies, the plaintiff would be met with the proof furnished on this trial, that J. Howard & Son were to furnish the coal, and that each ship was to have charged to it the quantity of coal it received.

It seems to me, therefore, a joint action could not have been sustained against all the owners. According to the whole theory of the evidence, the liability was several and not joint, for which, even under the liberal provisions of the Code, a joint action would not lie.

But without enlarging upon the difficulty suggested, there is another which in my opinion is insurmountable.

The notes were in the usual form, and signed. “J. Howard & Son,” and there was nothing upon their face to indicate that the makers were not to be held responsible as principals. If a maker does not sign as agent, or if by the terms of the note it do not clearly appear that he is an agent, he will be deemed to have contracted in his personal capacity, even though he discloses his agency to the payee. (1 Pars, on Notes, 92. Story on Ag. § 155. Story on Bills, § 76. Pentz v. Stanton, 10 Wend. 270. Mills v. Hunt, 20 id. 431. Evans v. Wells, 22 id. 324. Taber v. Cannon, 8 Metc. 456. Hyde v. Paige, 9 Barb. 150. Ranken v. Deforest, 18 id. 143.)

In Tabor v. Cannon, the agents of a whale ship, purchased supplies for her voyage, and the seller drew a bill for the amount addressed to the “ agent and owners.” The drawee (the agent) accepted the bill without any addition indicating his agency, and it was held that he alone was liable as acceptor. Hyde v. Paige, was even a stronger case. There the agent gave his note after having fully disclosed that he was purchasing the hay for his principal, and an action against the latter was- defeated.

These are well established principles applicable to ordinary agencies. In their application to ships’ husbands they are still stronger, and the master or agent is liable for supplies, as well as the owner. (Dunlap’s Paley or Agency, 387, note.)

I have already said there was no proof that the several ship owners were partners under the style of J. Howard & Son. It was not so claimed in the answer, nor pretended by the defendant in his evidence. On the contrary all the proof on that subject showed conclusively that the firm of J. Howard & Son was composed of the defendant and his deceased father, and the utmost extent of the defendants’ claim was, that there was a joint liability of all the owners.

That the defendants were co-owners, and as such liable jointly with the other owners, does not change the liability which they voluntarily assumed, when they gave their individual note for a joint debt; nor does such part ownership affect the position which the defendant occupied as ships’ husband. (Pars, on Part. 569.) A note given by a partner in his individual name for a partnership debt, will not bind the partnership. (Id. 215, and cases cited.)

Had there been proof that the several owners of the steamship line were partners under the name or firm of J. Howard & Son, then of course, the joinder of all such owners would be necessary in an action upon the notes. But all the evidence is the other way, and I think the learned justice fell into the error of applying the rules relating to partnerships and not the rules relating to mere j oint liabilities. I think he also overlooked the undisputed evidence that the defendants were the ships’ husbands, and as such, personally assumed the debt, which, within the principles I have stated, discharged their co-owners from liability upon the notes.

I have not overlooked the fact that the original complaint contains the allegation that the business of the steamship line was all transacted on behalf of the owners, under the firm name of J. Howard & Son. But such allegation is not an averment of a partnership between such owners under such firm name; nor is it capable of any such construction. If taken by itself, it' can be made to mean no more than is stated, namely, that this Pacific line of steamers, owned by different persons, had a business office in the city of Hew York, and known as the office of J. Howard & Son, where the business of the line was mainly transacted, under the name of J. Howard & Son, under which name the owners contracted for coal and supplies, issued notes and generally did all the business of the line at the city of Hew York. If, however, the allegation is taken, as I think it must he, in connection with other parts of the complaint, it clearly appears that J. Howard & Son, were the ships’ husbands, and as such, transacted the business of the line in their own names. Thus overcoming all force which might otherwise be given to the previous averments.

It will be observed that all the facts stated in the original complaint, are stated to be upon the “informa-tion and belief” of the plaintiff, and facts thus stated are relied on as an admission of sufficient notice to the plaintiff to let in the defense. In my judgment it utterly fails of the object. To invalidate the plaintiffs’ claim to be a bona fide holder, it was necessary to show that he, or Smith from whom he received the notes, had notice at the time they were received. It can not he pretended that the complaint, treating it as an admission of the plaintiff, contains any such proof. And there is no other.

There was nothing, therefore, to invalidate the plaintiff’s title to the notes, and the plaintiff, irrespective of all other questions, was entitled to recover.

If the view I have taken of the law is correct, it renders a reversal of the judgment necessary, and the question, whether in any view of the law, there was such a clear and preponderating weight of evidence, as to justify the withdrawal of all questions of fact from the jury, need not be examined.

The judgment must be reversed, and a new trial ordered, with costs to abide the event.

Robertson, Ch. J.

I am unable to perceive any valid defense set up by the answers in this case, except the denial of the plaintiff’s ownership of the notes set out in the complaint; which was not sustained on the trial. It is utterly immaterial, that the consideration of such notes consisted of goods furnished for vessels of which “ J. Howard & Son,” the makers of the notes, were ships’ husbands, and that other persons were joint owners of such vessels. That state of things might make the latter also liable if the notes in question had not been received as absolute payment, but it would not relieve the defendant. All questions as ,tq the regularity of prior proceedings in the action were set at rest by the amendment of the complaint, omitting some of the parties originally added as defendants.

The only possible ground upon which the evidence as to the ownership of the vessels in question could have been admissible on the trial was, to prove a different partnership for buying supplies for such vessels and chartering and managing them, under the same name, from that used by the defendant and his deceased partner, for their private business, and that such note was made by such other firm. There is, perhaps, something which might be distorted into an allegation to this effect in the complaint, which alleges that the defendant and his deceased partner did all the business therein mentioned under their firm name of “J. Howard & Son.” But the only evidence, in that direction, which consists of the testimony of the defendant himselfj does not come up to such a statement; it only shows that he acted as agent and gave the firm’s notes for stores furnished. It ought to,- and might, have been excluded as immaterial.

Even, however, if such a second partnership had been created under the same name, the other parties interested were secret or dormant partners, and the plaintiff was not bound to join them in the action as defendants. (De Mautort v. Saunders, 1 Barn. & Ad. 398. Mullet v. Hook, Mood. & Mal. 88. Baldney v. Ritchie, 1 Starkie, 338. Doo v. Chippensen, Abb. on Ship. 84. Colson v. Selby, 1 Esp. 452.)

I concur, therefore, in thinking the judgment of dismissal of the complaint was erroneous, and should be reversed, and a new trial had.


source: Caselaw Access Project

author: By the Court, Monell, J.

license: Public Domain

text:
    Robert P. Dodge et al. assignees, plaintiffs vs. Thomas Clyde, defendant.
    1. An action by too joint owners of property, against a third, to recover their shares of the purchase money, on a sale of the whole property by the latter will be sustained by proof of the sale by the defendant, and of the extent of the plaintiffs’ interests. The latter may be proved by the admission of the defendant, either in writing or verbally; and if so proved, there is no question arising under the statute of frauds

      2. Services rendered by the plaintiffs in and about the defendant’s business constitute a sufficient consideration for the plaintiffs’ interests in the property.
    (Before Monell, Garvin and Jones, JJ.)
    Heard and decided May —, 1868.
    Appeal from a judgment and order.
    The action was to recover the one sixth of the ferryboat Manhattan, alleged to have been sold by the defendant to Morgan and Ehinehart, the plaintiffs’ assignors.
    On the trial, before Justice McCuxx and a jury, the plaintiffs proved that in February, 1862, the defendant wrote the following letter to Morgan and Ehinehart:
    “ Gents. I purchased the ferry steamer Manhattan, about one third larger than the Tallaca, 130 feet long. She is a first rate ferry—one that will command the trade. Her price was $15,000. I get a -per centage of it, which I will explain. Capt. Whilldin says she is a cheap boat. You and Mr. Ehinehart will he in her the same that you are in the Tallaeea—that is $1000, each, * * The "con-
    sideration for such interest was services rendered by Morgan and Ehinehart for the defendant.
    A motion was made to dismiss the complaint, chiefly on two grounds ; first, that the contract was void by the statute of frauds; and second, that no sufficient consideration had been shown. The motion was denied, and the defendant excepted.

      Mr. Davis, for the appellant.

      Mr. Goodrich, for the respondent.
   By the Court, Monell, J.

The objection that the contract is void by the statute of frauds, has no foundation. The action, as I understand it, was to recover one sixth of the value of the ferryboat Manhattan, upon the allegation that Morgan and Ehinehart were the owners of that proportion, the whole having been sold by the defendant, and the only evidence required to sustain the action, which was for money had and received, was to show' the extent of Morgan and Rhinehart’s interest in the steamboat. That was shown sufficiently, I think, by the letter of Clyde to them, admitting that their interest in the Manhattan was the same as in the Tallaoca.

The interest of Morgan and Rhinehart was denied by the defendant, and if it could he proved by the admission of Clyde either in writing or verbally, it was'sufficient. It was not necessary to prove a contract of sale and purchase, by which one party transfers title to property to another, but merely that Morgan and Rhinehart and the defendant were co-owners of the ferryboat. That could as well be proved by the. admission of the defendant, as in any ether way. If, being joint owners, the defendant sold the whole, he is liable for the value of the other interests, and the only question was the extent of such interests.

There was, therefore, no question arising under the statute of frauds.

The consideration for the interest of Morgan and Rhine-hart, was sufficient. It was services rendered in and about the defendant’s business, and it was left to the jury to determine whether the agreement was that Morgan and Rhinehart were to receive the one sixth interest on account of the services which they allege they rendered to the defendant.

I have looked into the other exceptions taken by the defendant but do not think any of them tenable..

This is a simple action for money had and received to the plaintiffs’ use, and was sustained by proof of the interest of Morgan and Rhinehart and the sale by the" defendant.

• I think the judgment and order should be affirmed,' with costs.


author: By the Court, Garvin, J.

text:
    Coit vs. Planer.
    1. What allegations in the complaint are sufficient to show a cause of action for use and occupation.
    2. An action on the case for use and occupation is founded upon contract, and lies only when the relation of landlord and tenant exists. Such contract need not, however, he express ; it may he implied from circumstances.
    3. Thus, where the defendants, being notified what the rent of premises belonging to the plaintiff would be, if they used them, went into possession and occupied and enjoyed the use of the premises for fifteen months; Held that the court was bound to infer an agreement, and promise to pay a reasonable compensation. And that the promise or contract having been made out, the relation of landlord and tenant followed.
    . 4. In an action for use and occupation, possession by the defendants of premises originally leased to another, is sufficient evidence of an assignment of them by the lessee to the defendants, to warrant a recovery against the latter directly.
    (Before Monell, Garvin and Jones, JJ.)
    Heard and decided May —, 1868.
    Appeal from a judgment ordered at a special term.
    The complaint set forth that on September 10, 1864, Louis Planer and Joseph Kayser were the tenants, and in possession of certain premises in the city of Kew York, belonging to the plaintiffs, known as Kos. 85, 87 and 89 Elizabeth street, and on that day agreed with the plaintiff, that if he would erect and build an additional story on a certain building on said premises, for their use and occupation, they (Planer and Kayser) would pay the plaintiff an annual rent of $150 therefor, payable quarterly in advance; that the plaintiff' did erect said additional story, and Planer and Kayser entered into possession thereof, on or about the first day of January, 1864, and have paid the plaintiff for the rent, use and occupation thereof, up to February 1, 1866, but refused and declined to enter into any written agreement with the plaintiff for the letting or hiring of said additional story. That some time during the quarter ending on February 1, 1866, Planer and Kayser assigned and transferred to the defendants, Planer, Bramsdorf and Vail, all their right, title and interest in the said premises, 85, 87 and 89 Elizabeth street, including the-additional story above mentioned, and the defendants entered into, and ever since have been, and now are in the full use and occupation and enjoyment thereof; and that $75 is a fair and reasonable rent and sum for the use and occupation of said additional story for three months,, ending May 1, -1866. The plaintiff further stated that he notified the defendants that if they used and occupied the additional story, the _ rent of the same for the year commencing on May 1,1866, would be $400, payable quarterly in advance; which rent the plaintiff" averred is a fair and reasonable rent and sum for the occupation of the additional story; that said defendants have not paid the sum of $75 nor $400, or any part thereof. The complaint, therefore, demanded judgment for $475, and costs.
    The defendants, in their answer, denied that some time during the quarter ending February 1, 1866, referred to in the complaint, or at any other time, Planer and Kayser assigned or transferred to. the defendants all their right, title and interest in said premises.
    The cause was tried before Justice Babboub, without a jury. Upon the trial, without evidence upon either side, the defendants moved the court to dismiss the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action; • which motion was denied, and the defendants excepted. The plaintiffs then moved the court for judgment on the pleadings. The court granted the -motion, and granted judgment for the plaintiff; and the defendants excepted. Judgment was-entered accordingly; from which the defendants appealed.

      A. C. Morris, for the appellants.

      Alfred Roe, for the respondents. ■
   By the Court, Garvin, J.

This action is brought to recover a reasonable compensation for the use and occupation of an additional story used by the defendants, from February lj 1866, up to and including May. 1, 1867.

The complaint alleges the plaintiffs’ ownership; notice to the defendants that if they used the premises he would charge them $400 per year therefor; that the defendants entered into possession;. use and occupation by. the defendants for fifteen months ; that the amount claimed is a reasonable sum; and that, during the quarter preceding May 1, 1866, the said Planer and Kayser. assigned and transferred to the defendants all their right, title and interest in the premises in Elizabeth street; that Planer and Kayser refused to enter into any written agreement for the letting or hiring of the additional story; and that the rent is still unpaid. All these allegations, except the assignment, are admitted, for want of any denial in the answer.

That such a complaint contains facts sufficient to constitute a cause of action for use and occupation for the one year, will hardly be denied. In the absence of any written or verbal agreement for the duration of their term, Planer and Kayser were only tenants of the additional story from year to year; and their term expired May 1, 1866, (1 R. S. 744, § 1;) thus showing a clear cause of action against the defendants for use and occupation of the premises for the year beginning in May, 1866.' After that date, the defendants could not have been under-tenants of Planer and Kayser; .their term expired before the defendants’ commenced. If not under-tenants, the defendants are liable to the plaintiffs as owners. ( Wood v. Wilcox, 1 Denio, 38. 7 Hill, 88. 1 R. S. 748, § 26.) The use and occupation of the premises would imply a promise to pay what they were reasonably worth, or, in other words, a reasonable compensation.

But it ie objected that an action on the case for use'and occupation is founded upon contract, and lies only when the relation of landlord and tenant exists. This is a sound principle, and rests not only upon authority but upon the statute. Such contract need not, however, be express; it may be implied from circumstances. (Despard v. Walbridge, 15 N. Y. Rep. 374. 13 John. 297, 240. 1 Wend. 134. 17 Barb. 149.)

It is admitted that the defendants went into possession, • occupied and enjoyed the use of the premises for fifteen months. They were notified what the rent would be if they used the premises. They deprived the plaintiffs of the use and occupation of them, and took the benefit and had the advantage. Upon these facts we are bound to infer an agreement,.and promise to pay a reasonable compensation. The promise or contract having been made out, the relation of landlord and tenant follows.

This disposes of the defense to the plaintiffs’ claim for the year succeeding May 1, 1866, but leaves the question of compensation for the last quarter preceding that period undisposed of. It is averred that there was an assignment and transfer to the' defendants of all the interest of Planer and Kayser to the additional stoiy.; that it was. occupied by the defendants, who went into possession. The fact of the possession is admitted, and this is evidence of an assignment in the first instance. This principle has been held so often that it hardly needs the citation of authority to sustain it. It is broadly laid down in Armstrong v. Wheeler, (9 Cowen, 88 ;) Williams v. Woodard, (2 Wend. 487 ;) Quackenboss v. Clarke, (12 id. 555;) and approved in Bedford v. Terhune, (30 N. Y. Rep. 453.) All the facts are admitted which are required to make out the plaintiffs’ case. Ko one thing is denied, except the assignment; and the occupation proves that.

I am at a loss to see how the answer can avail the defendants, even if it is conceded Planer had an interest to assign. The rule implies an assignment from the occupation and possession, when proved; why does not the same implication result from the admission ? It was the duty of the defendants to have met the ease stated in the complaint, by their answer and proofs. Savage, J. says, (in Quackenboss v. Clark,) the fact of assignment is a transaction between the defendants and lessees, of which the plaintiff is not cognizant; the defendants are; there is no hardship in concluding them by their possession, “unless they disclose the true state of their title. They might have set up ánd shown they were under-tenants; they might have set up and proved the term had expired before they Went into possession. These facts would have disproved an assignment, which, without such proof, would be inferred from the fact of possession.”

The conceded facts fix the liability of the defendants for the use of the premises, and the plaintiffs’ right of action for.the quarter’s rent of the year. (30 N. Y. Rep. 458.) In every aspect in which we have been able to view this case, though one of some difficulty, we think the judgment should be affirmed.

Judgment affirmed, with costs.


author: Monell, J.

text:
    The Hudson River Railroad Company, plaintiffs, vs. Augustus Loeb et al. defendants.
    1. The waters of the Hudson river, and the land under the waters thereof, up to high water mark, belong to the people of the state, and not to the owner of the upland.
    2. The lessees of land under the waters of the Hudson river, in the city of New York, and of bulkheads, piers, wharves and slips erected thereon, have no ■ claim to relief, by way of injunction, against an alleged obstruction in the waters, interfering with the use of such property, founded upon any of the rights of riparian owners; such owners having no peculiar or exclusive right to use the navigable waters for their exclusive or private purposes.
    3. The rights of such lessees, if any, are in common with the other people of the state, whose use of a public highway has been obstructed or destroyed by an individual.
    4. Any obstruction upon a public highway is a public nuisance, and it is immaterial whether the obstruction is in the middle, or immediately adjacent to the borders, of a stream. If it impedes the free use of the stream by the public, it is unlawful, and a public nuisance; and being a public nuisance, and accompanied by injury common to a large part or the whole of the people, it is the subject of indictment, and also of private action at the suit of any individual who sustains an injury, personal and peculiar to himself.
    5. An averment that the plaintiffs are interrupted in the full and free use of the waters of the Hudson river in the slips between their piers or wharves, and thereby deprived of emolument which otherwise they would derive from their franchise of wharfage, is sufficient to entitle them to maintain a private action against the defendants, if the unlawful act of the latter caused- the injury; and gives the court jurisdiction to ¡restrain the continuance of the nuisance. j
    6. To maintain an action against the owners ¿f a distillery, to restrain them from emptying into the Hudson river the refuse of distillation, called “mash,” and for damages, the plaintiffs must establish two things; first, that such act of the defendants causes an interference with, or obstruction of, the navigation of such river, amounting to a common nuisance; and second, that the maintenance of such obstruction was, and is, injurious to some right, or property or interest of the plaintiffs.
    7. A mere obstruction to a public navigable stream, unaccompanied by any personal injury, does not authorize an action by a private person. But the owner of a wharf or pier, or of the franchise thereof, may be seriously injured, or have his franchise wholly destroyed, by filling in the surrounding water space so as to prevent access to such wharf or pier by water; and if the act of filling in -is unlawful, an action will lie for the injury.

      8. If, in such case, the wharves or piers used by the plaintiffs are lawful structures, and entitle the plaintiffs to the franchise of wharfage, they will have shown enough to sustain their action, if they shall show that they have • been deprived of the use of such franchise, or of any part of it, by the deféndants.
    9; Where the plaintiffs allege, in their complaint, that they are the lessees in possession, and are in the use of the piers and wharves, this is a sufficient allegation, as a pleading, to show title; and such possession and use constitute a sufficient interest in the franchise to entitle the plaintiffs to redress for an injury to it.
    10. The construction, as_ well as thé ordinary and proper, use, of public sewers, in the city of Hew York, is not a nuisance; and even if, in such ordinary and proper use, navigation of the river opposite their entrance should be obstructed or wholly destroyed, no action would lie.
    11. But any unusual or improper use of such sewers, by an individual, is not protected by the sanction which the legislature has given for their construction. So that, if, in any unusual or peculiar use of them by an individual, the full and free navigation of a public stream is obstructed, such obstruction becomes a common nuisance.
    12. A permission by the city corporation of Hew York to the owners of a distillery to connect with a sewer, for the purpose of carrying off water or fluid that will not deposit sediment or obstruction, will not authorize such owners to make use of the sewer to carry off refuse matter, such as “ mash,” from their distillery, which forms an obstruction in the river, and impedes navigation; where there is a condition annexed to such permission, affixing a penalty for allowing any substance to flow into the stream which will form a deposit, tending to fill up the sewer or basin.
    13. Besides, even an express permission, from the corporation, to individuals, to use a sewer in such a manner, would be no shield to the licensees. ■ In that particular, the corporation has no power to make lawful what would otherwise be a public nuisance. 1
    14. Parties causing an obstruction in the stream, by means of deposits passing through a'sewer, cannot claim exemption for their acts, on the ground that the sewer empties itself at the foot of a public street, which may, at any time, at the pleasure of the corporation, be extended into the river to the exterior bulkhead line, and, therefore, the filling up of such street is lawful; unless they can show direct authority from the corporation to extend the street, after the corporation has complied with all the provisions of law relative to opening streets.
    (Before Monell, J. at special term,
    May —, 1868.)
    Motioh to dissolve a temporary injunction. . The plaintiffs, as alleged, are the lessees and in possession of two. parcels of land and land under water, bulkheads, piers, wharves and slips thereon, extending from Thirty-first to Thirty-second streets, and from Thirty-second to Thirty-third streets, and from the Eleventh to ■ the Twelfth avenues, in the city of Hew York) (the present line of bulkhead being 314 feet' easterly of the easterly line of the Twelfth avenue,) upon which premises the plaintiffs have and use in their business of carriers of merchandise, four piers extending into the waters of the Hudson river; one of said piers extending along the southerly line of Thirty-second street, into the waters of the Hudson river, between which several piers are slips wherein the tide ebbs and flows, and in which the boats, barges and floats of the plaintiffs and of others doing ' business with the plaintiffs lie attached to such piers. There is a public sewer constructed by the corporation of the city of Hew York, passing down Thirty-third street to Eleventh avenue, thence through Eleventh avenue to the' center of Thirty-second street, and thence through the center of Thirty-second street until it empties into the Hudson river and into the slip between the piers of the plaintiffs. The defendants occupy a distillery situated on the northerly side of Thirty-third street, near the latter avenue, and have and use a private drain from their distillery to and connecting with such sewer in Thirty-third street. It is alleged that since October, 1867, to the commencement of this action, the defendants have emptied from their distillery into such drain, large quantities of a substance known as “mash” being the refuse of grains of distillation, which being washed through such drain into the sewer and through the sewer into the Hudson river and into the slip between the plaintiffs’ piers, has filled up such slips, so that boats, barges and floats of the plaintiffs and of others doing business with' them, were unable and could not use said slips, and the plaintiffs lost the use thereof. The plaintiffs claimed damages.
    Upon these facts an injunction was granted restraining ■ the defendants from emptying into such sewer any “ mash” or other substance which, passing through such sewer, into such slips, may fill or obstruct the same.
    Upon the motion the defendants claimed the right to use such sewer under a permission from the corporation of the city of Hew York; which permission contains among others, the following conditions: “ Manufactories, breweries, distilleries and the like, for permission to connect with sewers or drains for the purposes of carrying off water or fluid that will not deposit sediment or obstruction, shall pay such sums as shall be fixed * * o * and any distiller permitting any substance to flow into any sewer or drain or receiving basin which shall form a deposit that tends to fill said sewer, drain or basin shall be subject to a penalty of fifty dollars for each offense.”
    The defendants claimed that the plaintiffs had no exclusive right to the slip. That the sewer emptied into the waters of the Hudson river at the foot of a public street and below high water mark of said river, and that such waters and the land under the same, belonged to the public, and not to the plaintiffs.
    It was not diputed that the defendants used the sewer as alleged, but it. was denied that the filling up and obstruction was caused solely by the refuse matter from the defendants’ distillery, and the proof on that subject was. somewhat conflicting.

      P. J. Joachimssen and A. J. Vanderpoel, for the defendants.

      H. H. Anderson, for the plaintiffs.
   Monell, J.

There is no doubt, I think, that the refuse substance, called mash,” which flows from the defendants premises into the sewer in Thirty-second street, and thence is deposited in the Hudson river at and about the mouth of such sewer, causes an. obstruction to the free use of such waters. There was some proof tending to show that the deposit at the mouth of the sewer, was partly of other substances, and not wholly the refuse which came from the defendants’ distillery. But the weight of the proof is, that the obstruction was and is caused by the flow from the defendants’ premises. There is no dispute but that the sewer entered into- and upon the waters of the Hudson river, which is a navigable stream where the. tide ebbs and flows; and it was in effect conceded that the plaintiffs have no title to such waters, or to the land under water in front of the opening of such sewer into the river. It is undoubtedly true that the waters of the Hudson river, and the land under the waters thereof up to high water mark, belong to the.people .of the state, and not to the owner of the upland. (Gould v. Hudson River R. R. Co., 6 N. Y. Rep. 522.) The plaintiffs, therefore, have no claim to relief in this case, founded upon any of the rights- of riparian owners; such owners having no peculiar ór exclusive right to use the navigable waters for their exclusive or private purposes. (Lansing v. Smith, 8 Cowen, 146.) But the rights of the plaintiffs, if any, are in common with the other people of the state whose use of a public highway has been obstructed or destroyed by an individual.

Any -obstruction upon a public highway is a public nuisance, and it is immaterial whether the obstruction is in the middle, or immediately adjacent to the borders of a stream. If it impedes the free use of the stream by the public, it is unlawful and a .public nuisance. (Harlow v. Humiston, 6 Cowen, 189. Lansing v. Smith, 8 id. 146. Hecker v. Bal. Dock Co., 13 How. Pr. 549. People v. Vanderbilt, 26 N. Y. Rep. 287.) Being a public nuisance and accompanied by injury common to a large part, or the whole, of the people, it is the subject of indictment, and also of private action at the suit of any individual, who sustains an injury personal and peculiar to himself.

The plaintiffs complain that they are interrupted in the full and free use of the waters in the slips between their piers or wharves, and thereby deprived of emolument which otherwise they would derive from their franchise of wharfage. This is a sufficient averment of an injury, to entitle the plaintiffs to a private action, against the defendants, if the unlawful act of the defendants caused the injury, and gives the court jurisdiction to restrain the continuance of the nuisance. (Peck v. Elder, 3 Sandf. 129. Howard v. Lee, Id. 281.)

To maintain this action, two things must be established : 1st. That emptying refuse substance from the defendants’ distillery into the sewer,'Causes, by .its deposit in the river, an interference with, or obstruction of the navigation of such river, amounting to a common nuisance; and 2d. That the maintenance of such obstruction was and is injurious to some right, or property or interest of the plaintiffs.

The title of the plaintiffs to the wharves or piers, or to the franchise of wharfage, is, of course, directly involved. Their right to maintain this action depends upon an alleged injury to their property in such wharves or piers. A mere obstruction to a public navigable stream, does not authorize a private action, but the obstruction must be accompanied by a personal injury. (Ft. Plain Bridge Co. v. Smith, 30 N. Y. Rep. 44.) The owner of a wharf or pier, or of the franchise thereof, may be seriously injured, or have his franchise wholly destroyed, by filling in the surrounding water space so as to prevent access to such wharf or pier by water; and if the act of filling is unlawful, an action will lie for the injury.

If, therefore, the wharves or piers used by the plaintiffs are lawful structures, and entitle the plaintiffs to the franchise of wharfage, they will have shown enough to sustain their action, if they shall also show that they have been deprived of the use of such franchise, or of any part of it, by the defendants.

For the purposes of this motion, the allegations in the complaint are sufficient to show a right to the franchise in the plaintiffs. They allege that they are the lessees in possession, and are in the use of the piers and wharves, and it follows, until otherwise shown, that such possession and use is a sufficient interest in the franchise, to entitle the plaintiffs to redress for an injury to it. It does not expressly appear whether the piers are or are not legal structures. If they were erected in the waters of the river without the license or permission of the competent authority, they would themselves be a common nuisance, and their proprietors would be remediless for any private injury to them. But the proofs before me do not present the question; the allegation, as a pleading to show title, being sufficient. The plaintiffs, therefore, are in a position to complain, if an unlawful act has been done to their injury, by the defendants. (Pierce v. Dart, 7 Cowen, 609. Myers v. Malcom, 6 Hill, 292. Dougherty v. Bunting, 1 Sandf. 1.)

I have already shown that it is established by the facts that the alleged obstruction is caused by the deposit from the defendants distillery, and it remains to be seen whether such deposit is unlawful.

It is claimed by the defendants, that the sewer in Thirty-third street is a public sewer, constructed by the corporate authorities of the city of Hew York, for the use of the residents of said city along its line; and that the connection of the defendants with, and their use of such sewer, is by express and written permission from such authorities.

The sewer is undoubtedly a lawful structure. The corporation has authority to enter upon any land or water and to take and use the same for the purpose of constructing sewers. (Sess. Laws of 1849, p. 540, § 14.) Their construction, therefore, as well as their ordinary and proper use, is not a nuisance; and even if, in such ordinary and proper use, navigation of the river opposite their entrance, should be obstructed or wholly destroyed, no action would lie. But any unusual or improper use of such sewers by an individual, is not protected, by the sanction which the legislature has given to their construction. ■ So that if, in any unusual or peculiar use of them by an individual, the full and free navigation of a public stream is obstructed, such obstruction becomes a common nuisance. I do not perceive any difference between passing a substance through a drain into a sewer, which substance will form a deposit at the mouth of the sewer, and carrying such .substance in carts- and depositing it in the river, from such carts. The acts are equally unlawful.

The right to build a sewer, therefore, affords no protection in its use, if such use is foreign to the ordinary purposes of a sewer, and is the proximate cause of a private injury. ' .

It is insisted, however, that the permission to the defendants from the corporation, allows the use of the sewer in the manner complained of. It is enough, perhaps, to say that no such permission is shown. On the contrary, a condition annexed to such permission, affixes a penalty for allowing any substance to flow into the sewer, which will form a deposit tending to fill up such sewer, or the basin into which it enters. There is, therefore, nothing in the written permission relied on, to warrant the use to which the defendants have put the sewer. But if there was, I am still not prepared to allow that even express permission from the corporation, to use the sewer in the manner complained of, would be any shield to the defendants. In that particular, the corporation has no power,' in my judgment, to make lawful, what otherwise would be a public nuisance. This was held in Renwich v. Morris, (3 Hill, 621.) Macomb was authorized by an act of the legislature, to erect a dam in the Harlem river, a navigable stream, and it was held, that any excess or irregularity in the exercise of that power, by which the navigation became obstructed, was, pro tanto, a public nuisance.

A remaining objection I will briefly notice'. The sewer, which it is alleged carries the refuse substance from the defendants’ distillery into the river, empties itself -at the foot of Thirty-second street, and it is claimed that inasmuch as such street is a public street, opened and laid out by the corporation, and which may at any time, at the pleasure of the corporation, be extended into the river to the exterior bulkhead line, therefore, the filling up of such street is lawful. It is not, however, pretended that the mode adopted by the defendants was or is prescribed or sanctioned by the corporate 'authorities as a means of extending the street into the river. It is not usual for the city authorities to make street extensions in that way, and unless the defendants can show direct authority from the corporation to extend Thirty-second street, after the corporation has complied with all the provisions of law relative to opening streets, they cannot claim exemption for their acts under that head. Besides, it appears that the deposit extends beyond the lines of the street, and obstructs navigation, both above and below.

The general principles of law applicable to this case, are too well' settled to need further illustration, and they have been recently very clearly annunciated in the parallel case of The Mayor, &c. of New York v. Baumberger, in this court, in an opinion delivered by Mr. Justice Jones. (Ante, p. 219.) This case is even stronger, as in that case there was no pretense of any special or peculiar injury to the plaintiffs.

My conclusions are that upon the facts as presented upon this motion, the plaintiffs are entitled to hold the injunction restraining the defendants, pending the action, from using the sewer in Thirty-second street, in the manner complained of. (Clark v. Mayor, &c. of Syracuse, 13 Barb. 32.)

The motion to dissolve the injunction must, therefore, be denied, with the usual motion costs.


author: Jones, J.

text:
    Roswog, plaintiff, vs. Seymour, defendant.
    1. The mere fact that one is liable to arrest on final process, will not render invalid a voluntary disposition of his property, for the benefit.of his creditors, which would be otherwise valid. Hence, if prior to being charged in execution, he makes such valid disposition, the fact of his having so done will not bar his discharge; nor can he be required to assign more than his contingent interest in the property appropriated to the benefit of his creditors, in the event of its being more than sufficient for that purpose.
    2. A debtor, by filing his petition for a discharge under the bankrupt act, before being charged in execution, stands substantially in the attitude of one making a valid assignment, with this contingency only, viz. that perhaps the bankruptcy proceedings may be dismissed or discontinued, in such manner as to annul ah initio any effect the bankruptcy proceedings theretofore had, may have had on the title of his property.
    3. Section 10 of the article of the Revised Statutes, relating to “ voluntary assignments by a debtor imprisoned in execution in civil causes,” (2 M. S. 32,) does not, in terms, require a bond for the absolute delivery of the debtor’s property, nor the security to be in an amount equal to the value of the property directed to be assigned; nor does it require security in all cases. Neither is such its spirit and intent. The design is to leave it to the sound discretion of the court whether to require any security, and, if any, then to fix the form of the security, and the amount, according to the circumstances of such particular case.-
    4. Where a debtor, prior to being charged in execution, is declared a bankrupt, it being then out of his power to jnake personal delivery, of his property, he should not be required to give a bond to do so:
    6. But a bond may be required from him, covering the contingencies of there being any property remaining after the termination of the bankruptcy; whether a bankrupt can, without or with the consent of his creditors, discontinue bankruptcy proceedings, and have his property restored to him ; and whether the court of bankruptcy can dismiss an application and direct the property to he restored.
    (Before Jones, J. at special term,
    May —, 1868.)
    This action was brought by the plaintiff to recover of the defendant damages for the wrongful conversion by him of goods of the plaintiff received by the defendant in a fiduciary capacity. At the commencement of the action an order of arrest was obtained, the defendant was arrested and was discharged on giving bail. The action was subsequently tried, and judgment was recovered, some time in May, 1867, for .$5592.74. Execution against the person of the defendant was regularly issued and the defendant arrested thereunder, on the 22d of July, 1867. Under this execution he still remains imprisoned. The defendant, while imprisoned under this execution, to wit, on the second of Uovember, 1867, applied for his discharge from imprisonment under the provisions of article 6, chapter- 5, title 1, part 2, of the Revised Statutes. In his petition he set forth a large amount of property, alleging, however, that it is subject to certain proceedings instituted in the United States District Court- for the district of Louisiana, on the 24th day of June, 1867, under the general bankrupt act of March 2, 1867, in which proceedings such steps have been had, that he was, on the 20th day of July, 1867, duly declared a bankrupt under such act, by said district court. Such proceedings were had on this petition as that it was adjudged that the petition and account of the applicant were correct, and that his proceedings were just and fair, and an assignment of his property ordered. The question that now arises is whether any security should be required, and if so, what amount, under section 10 of said article 6. That section is as follows: “ Such applicant shall furnish satisfactory evidence to the court, of the actual delivery to the assignees so appointed, of all the property so directed to be assigned, or he shall give such security for the future delivery thereof as the court shall approve.” (2 R. S. § 32.)
   Jones, J.

This section does not in terms require a bond for the absolute delivery, nor the security to be in an amount equal to the value of the property directed to be assigned; nor does it require security in all cases. Neither is such its spirit and intent. The design is to leave it to the sound discretion of the court whether to require any security, and if any, then to fix the form of the security, and the amount, according to the circumstances of each particular case. Thus, if the property consisted solely of demands against third persons not evidenced by any writing, there would be nothing capable of delivery, and it would be absurd to require a bond conditioned for the performance of an act incapable of being performed. Again, if the property consisted solely of goods in the possession of a third person claiming title thereto adversely to the applicant, then to require a bond in the value of the goods, conditioned for the absolute delivery thereof, would be to require the performance of an act not presently in the power of the applicant to perform, and which by reason of an adverse legal decision or a recovery of damages by the assignee it might never be in his power to perform.

In the present case the applicant, prior to being charged in execution, was declared a bankrupt. The effect of this, under the provisions of the bankrupt act, is to place his property in custodia legis and impound it for the benefit of the creditors proving their claims under that act. It is then out of his power to make personal delivery of this property, and he should not be required to give a bond to do so. . Whether it will ever be in his power to make delivery would depend on whether there is any property - remaining after the termination of the bankruptcy, and might also depend upon a solution of the question whether a bankrupt can without, or with, the consent of the creditors, discontinue bankruptcy proceedings, and have his property restored to him, and whether the court of bankruptcy can dismiss an application and direct the property to be restored. I do not think it necessary for me to decide these questions on this application. There is. sufficient question about them to justify me in requiring, as section 10 authorizes, a bond with a condition covering these contingencies. If the applicant had filed his petition in bankruptcy subsequent to his arrest and final process in this action, his so doing might perhaps have been regarded as a voluntary disposition of his property made in fraud of the act under which he applies for his discharge, and with intent to destroy the efficiency of its provisions, which are intended to compel the application of the property owned by the imprisoned debtor at the time he was charged in execution, to the payment of the debt for which he was" imprisoned, so far as he is not prevented by in invitum proceedings. But there is no principle by which the mere fact, that one is liable to arrest on final process, renders invalid a voluntary disposition of his property for the benefit of his creditors, which would b'e otherwise valid. If, then, prior to being charged in execution, he makes such valid disposition, the fact óf his having so done will not bar his discharge, nor can he be required to assign more -than his contingent interest in the property appropriated to the benefit of his creditors in the event of its being more than sufficient for that purpose. In this case the applicant, hy filing his petition before being charged in execution, stands substantially in the attitude of one making a valid assignment, with, perchance, this contingency only, viz. that perhaps the bankruptcy proceedings may be dismissed or discontinued in such manner as to annul ah initio any effect the bankruptcy proceedings theretofore had, may have had on the title of the property in question. •

The condition , of the bond may be made to meet this contingency.

Ordered accordingly. •


author: By the Court, Jones, J.

text:
    Adelia McCarty, plaintiff and respondent, vs. James O’Donnell, defendant and appellant.
    1. The court has'power to strike out a defense as sham, upon the sole ground that it is false.
    2. The exercise of this power, however, must be confined within very narrow limits, so as to avoid entrenching upon the defendant’s right to a trial of a disputed fact by a jury.
    3. The question as to whether an answer is true or false cannot be tried on conflicting afBdavits, and in case the court is of opinion that the preponderance of proof is against its truth, the answer be stricken out as sham on the ground of its falsity.
    4. The proper rule for courts to adopt, in disposing of motions to strike out answers as sham, on the ground of falsity, stated.
    (Before Robertson, Ch. J., and Jones and McCunn, JJ.)
    Heard June —, 1868;
    decided July 3, 1868.
    Appeal from an order striking out an answer, as sham. The complaint, verified in the proper manner, was as follows:
    “The complaint of the plaintiff shows to the court: First. That at the times hereinafter mentioned, she was the owner of a cottage, butcher shop, and room over the same in house, wagon shed and slaughter house situate at Far Rockaway, Queens county, in the state of Yew York.

      Second. That the defendant occupied the same by the permission of this plaintiff from June 3, 1867, to the 8th day of October, 1867, when he abandoned the same to this plaintiff.

      Third. That the use of the said premises for that period was reasonably worth the sum of three hundred dollars, but that the said defendant has not paid the same, or any part thereof.
    That the plaintiff demanded the payment thereof on or about February 3,1868. ' Wherefore this plaintiff demands judgment against said defendant, for the sum of three hundred dollars,.with interest thereof from February 3, 1868, besides the costs of'this action.”
    The answer, verified in proper manner, was as follows:
    “ The defendant, by Samuel Hirsch, his attorney, answering the complaint of the plaintiff, denies each and every allegation therein contained, except as hereinafter mentioned.
    Further answering said complaint, said defendant alleges that on or about the 3d day of Yovember, 1866, he entered .into an agreement with James McCarty, touching the premises in said complaint described, and on or about said date, he paid to said James McCarty, for himself and said John McCarty, the sum of one hundred and fifty dollars, in full for six months’ rent of said premises in advance, from the first day of May, 1867, up to the first day of Yovember, 1867.
    Wherefore, said defendant demands that said complaint be dismissed, with costs.”
    The plaintiff, on her own affidavit and that of John Kelly, moved to strike out the answer as sham and false, and for judgment. This was opposed by the defendant on his own affidavit and that of James McCarty.

      It may be regarded as admitted that John and James McCarty were seised of certain premises whereof those in question are a part, as tenants in common. In support of the truth of the answer, both the defendant and James McCarty swear that while so seised, James, on behalf of himself and his co-tenant John, made, in November, 1866, an agreement with the defendant, who was then in occupation of the premises, whereby he agreed to give a lease of the same to the defendant for three years from May 1, 1867. The lease to be executed by himself and his brother John, and at the- same time received from the defendant $150 in full for the rent of the premises from May 1,1867, to November 1, 1867, and gave a receipt acknowledging the receipt of the rent, and containing in part the terms of the agreement. A copy of the receipt is set out in the defendant’s affidavit. James McCarty further swears that he and John, during the -lifetime of John, did, and with the consent of the other, always procure tenants for said premises or some part thereof; that the lease to be given the defendant, as above mentioned, was to be at the yearly rent of $300; that subsequent to the making of this agreement with the defendant, and the receipt of the $150, an arrangement was made between him and the plaintiff (the widow of John,) whereby the real estate formerly held in common by him and John, was apportioned between him and the plaintiff, the part set off to the plaintiff comprising the premises in question; that at the time- of such apportionment and setting off, he informed the plaintiff of the letting to the defendant, and made the apportionment subject thereto, and the plaintiff then knew that he had received $150, from the defendant in full of the rent of the premises occupied by him from May 1st to November 1st, 1867; that at the time of such apportionment it was expressly agreed on the part of the defendant and those holding for, with, or under him, that the agreement made between him and the defendant, should be in all respects recognized; and both the said plaintiff and John Kelly well knew, at that time, of the said' agreement made by him xvith the defendant, and he had received $150 for the rent of said premises up to November 1, 1867. To show the falsity of the answer, the .plaintiff read an affidavit of John Kelly, in which he swears that the defendant told him that he had paid $150 for rent up to June, 1867, but nothing more; that when he, on txvo occasions during the summer, urged the defendant to pay the rent, he refused to do so, but never claimed that he had paid the rent up to-November, 1867; that the defendant agreed to take a lease of the premises from the plaintiff, from the 10th of June, 1867, to the 1st of December, 1867, at the rent of $300, payable in four monthly payments; and that he caused such a lease to be prepared. The plaintiff, in her affidavit, swears that she, on April 27, 1867, purchased the said premises on a foreclosure of a mortgage thereon, and received a deed therefor on June 3, 1867; that the defendant has frequently admitted that the $150 paid by him to. James McCarty xvas only the rent for the winter of 1866 and 1867, (during xvhieh time the defendant occupied the premises,) and that the rent for the summer season of 1867, had never been paid; that Mr. Kelly called on the defendant at her request; that she'presented to the defendant for his signature a lease made out by Mr. Kelly, but the defendant refused to sign it or give any reason for such refusal, although he admitted that he had seen Mr. Kelly, • and had agreed with him to -sign it. The defendant, in his affidavit, denies having made to Mr. Kelly the statement which Mr. Kelly swears he made, and swears thai he told Mr. Kelly that he had paid the rent up to November 1, 1867. He also denies that he ever' stated that the $150 paid by him xvas only on rent for the winter of 1866 and 1867, or that the rent for the summer of 1867, had not been paid. He admits that a lease was offered to him, but he alleges that it was prepared reserving a rent of $300 per season, whereas he had. rented the premises at $300 per annum, and not by the season, and that it contained other oppressive restrictions and clauses,' and he accordingly refused to receive the same.

      Samuel Hirsch, for the appellant, defendant.

      Geo. W. Wingate, for the respondent, plaintiff.
   By the Court, Jones, J.

I think it may now be considered as settled, (whatever may be actually or apparently held to the contrary in Hadden v. The N. Y. Silk Manufacturing Co., (1 Daly, 389,) that the court has power to strike out a defense as sham upon the sole ground that it is false. (People v. McCumber, 18 N. Y. Rep. cited from page 321, and eases there cited.) It is evident, however, that the exercise of such power must be confined within very narrow limits, so as to avoid entrenching upon the defendant’s right to a trial of a disputed fact. It cannot be that the question as to whether an answer is true or false, may be tried on conflicting affidavits, and if the court is of opinion that the preponderance of proof is against its truth it may strike it out as. sham on the ground of its falsity. If that were so, every action in which a disputed .question of fact was involved could be decided by the court, thus depriving the defendant of his right to. a trial by jury.

The only safe rule for courts to adopt as a guide, in disposing of motions of this character, is not to strike out answers as sham on .the ground of falsity, unless the defendant either, 1st, admits its falsity j or, 2d, while denying its falsity in general terms, yet by his own showing demonstrates that the denial is not in good- faith, and that the. answer is in fact false; or, 3d, by not denying admits the truth of sufficient of the facts alleged against the truth of the answer to establish its falsity; or, 4th, 'unless where the answer, consisting of denials or affirmative allegations made on information and belief, and the motion being made on affidavits of those who must necessarily be possessed of the requisite knowledge as to the truth of the denials or allegations, he does not show the sources of his information, or any thing tending to show a possibility of his allegations being true; or, 5th, unless, where the answer, consisting of a denial of any knowledge or information sufficient to form a belief as to the truth of an allegation in the complaint, the truth or falsity of which is presumptively within the knowledge of .the defendant, and the motion being made on affidavits tending to show that the defendant has sufficient knowledge or information to form a belief, he does not, by opposing affidavits, show that he has not, in fact, any knowledge on the subject sufficient to form a belief, and the reasons why he has not. In all these instances the answer, in the language of the case of The People v. McCumber, presents no matters of substantial litigation, and its falsity is undoubted. Although the striking out of defenses as sham, upon the ground of their falsity, has been practiced for a long period'of time, yet in no case, in this state, has a defense been stricken out for such cause, unless its falsity was made apparent in some one of the modes above mentioned. Thus in Steward v. Hotchkiss, (2 Cowen, 634,) the motion was made on affidavits showing the'falsity of the plea. No affidavit of the defendant was produced as to the truth of the plea in point of fact, nor did his attorney swear he believed it to be true. The court said: “ The plea is false in fact, beyond all doubt, and there is some doubt in saying whether it should be answered or is demurrable. Notwithstanding the legal question which arises on its face, we should suffer it to stand upon a very slight suggestion of its truth. Hone such is made. Its falsehood is conceded.” So in Brewster v. Hall, (6 Cowen, 34,) the affidavit showing the falsity of the special plea in point of fact was not in any way denied by the defendants or their attorney. The court said: “The defendants have pleaded a series of sham pleas without a pretense of merits in their cause, or that the pleas are true in a single particular.” So in Broome County Bank v. Lewis, (18 Wend. 565,) the court says: “ The defendant produces no - general or special affidavit of. merits, makes no pretense that his pleas are true, but on the contrary, by his silence, admits they are false.” In The Elizabethport Manufacturing Co. v. Campbell, (13 Abb. cited from p. 92,) the court says : “The plaintiffs’ affidavits, not being contradicted, satisfactorily prove that every denial included in the second answer is false.” So, to the same effect, is Walker, President, &c. v. Hewitt, (11 How. Pr. cited from p. 396.) In The People v. McCumber, (18 N. Y. Rep. cited from p. 320,) the court says: “The falsity of every denial respecting a material allegation is made entirely clear by other parts of the answer, and the affidavit of the auditor used for the motion, and no affidavits of the defendant were produced on the motion, to explain or sustain the truth of the defense.” In The Manufacturers' Bank of Rochester v. Hitchcock, (14 How. 406,) the complaint was upon notes, and the answer was that they were discounted under an usurious agreement, stating it particularly. The affidavits for the motion and the letters annexed thereto, showed that the notes were discounted in pursuance of requests by letters, which letters did not in the remotest degree tend to prove any such agreement as alleged in the answer. The affidavits in opposition to the motion presented no special facts to sustain the answer, except that the president of the bank, which is located at Rochestef, some five or six months prior to the discount of any of the notes, called at the office of some of the defendants in Buffalo, and it was there arranged, the president acting for the plaintiffs, that the plaintiffs would discount for the defendants such paper as that in question. The court held that the affidavits of the defendants, so fat from in fact contradicting the affidavits for the motion, supported them; holding that the arrangement sworn to by the defendants did not in the faintest manner tend to show an usurious agreement. In Oorbett v. Uno, (13 Abb. 65,) the complaint was on a promissory note; the answer denied on information that the note was at any time, for value, transferred to the plaintiff, .and denied that the plaintiff was the owner and holder of the note, and averred, to the contrary thereof, that the note then and at the commencement of the action was lawfully owned by Orlando M. Bogert and Robert II. Corbett, and that they were, or one of them was, the real party in interest. The plaintiff moved, on the affidavits of said Bogert and Corbett, to strike out the answer as false. The motion was met by affidavits of the three answering defendants, wherein they swore,, simply, that the denials and averments in the answer were made on information and belief, and they verily believed such denial and averment to be true. The court held the answering affidavits to be insufficient; holding that the opposing to the positive affidavits made by those who were alleged by the defendants, in their answer, to own the note, in which they swear that they did not but that the plaintiff did own it, a mere general swear by the defendants that they were informed differently, without giving the sources of such information, showed clearly that the defendants possessed no information which would be of any service to them in sustaining their answer, and consequently there was, in fact, nothing to contradict the moving affidavits; the answer was therefore stricken out as false.

Unless, then, the present cause falls within some one of the above five exceptions to the general rule not to strike out as sham, on the sole ground of falsity, this motion must be denied. It is clear the case does not fall within either the first, fourth, or fifth exceptions; nor does it fall under the second; for the defendant’s own showing, does not demonstrate the answer to be false. Does it come within the third ? The affidavits of the plaintiff and James McCarty, to the effect that the plaintiff occupied the premises under an agreement for a lease given to him by James on behalf of himself and his brother John, (they being co-tenants) under an arrangement between themselves, whereby each co-tenant permitted the other to let the premises held in common, and that he had paid to James for.himself and his brother the rent in full up to November 1, 1867, substantiate the truth of the answer. The effect of these affidavits is sought to be overcome by the affidavits of the plaintiff and John Kelly, swearing to admissions made by the defendant; by the affidavit of the .plaintiff, swearing “ that said John McCarty to the time of his death, February 27, 1867, refused to release the said .premises to the said O’Donnell and never did so, and by the affidavit of John Kelly, swearing that the defendant promised to take from the plaintiff a lease, the terms of which were inconsistent with his present claim.

"With respect to the-admissions, the defendant unqualifiedly denies them.

As to the allegation in the plaintiff’s affidavit, the defendant does not claim that John McCarty in person leased the premises to him, but that James did, for himself and his brother John, and there is no denial of this. There is however no denial on the part of the defendant, of the allegation that John refused to lease the premises to him, and no denial of the allegation that he promised to take from the plaintiff a "lease inconsistent with his present claims. These allegations must, therefore, for the purposes of this motion, he regarded as admitted.

The sole question then is, whether these admitted allegations; taken in connection with the other facts sworn to on behalf, of the defendant, are sufficient to stamp the answer as false. I do not think they are. As to the allegation of the refusal of John, assuming it to be true, its effect is to raise nice and somewhat perplexing questions as to the relative rights of tenants in common, which should not be determined on motions of this character. But further than this, James McCarty swears that on a division between him and the plaintiff’ she, the plaintiff", took the premises subject to his agreement with the defendant, she then well knowing that the rent had been paid up to ¡November 1. If so, she cannot avail herself of John’s refusal. Even assuming that this statement of James is denied, still it raises a question of fact upon an averment which avoids the effect of the admitted allegation, which is .as effectual to prevent the answer from being regarded as sham, as if the admitted allegation had been' itself denied.

As to the promise to take a lease from the plaintiff, this fact, standing admitted, is certainly evidence antagonistic to the truth of the answer. But it is not an express admission; it is an admission arising from the want of a denial of a matter averred. I cannot, upon such an admission, wholly disregard the affirmative allegations positively sworn to by both the defendant and James McCarty, in direct conflict with it. The admission of facts necessary to bring a case within the third exception, is required to be clear and definite^ without any thing appearing which materially detracts from their force.

Erom these views it follows that the present case does not fall within the third exception.

The case not falling within any of.the. exceptions, the motion should have been denied.

The order below must be reversed, and the motion denied with $10 costs of opposing the motion, and $10 costs on appeal, and disbursements of printing appeal papers and points.

McCunn, J. dissented.

Order reversed.


author: By the Court, Robertson, Ch. J.

text:
    William Moses, plaintiff and respondent vs. George W. Banker et al. defendants and appellants.
    1. A “broker’s note," purporting to be a purchase of property from one person, for account of another, for a specified price, cash on delivery, and signed with the name of a broker, without any proof of the handwriting of the signature, or of any authority from the purchaser, to any one, to make such purchase for him, is not admissible as evidence of the facts which it purports to state.
    2. - Such an instrument, by itself, in the absence of any evidence of the existence of the person whose name is written at the foot thereof, is no proof of a purchase or sale; much less of any authority to the broker, by the purchasers, to buy for them,
    3. The admission of an instrument without any authentication, or proof of a signature, in evidence, notwithstanding a general objection that it is incompetent, cannot be sustained.
    (Before Robertson, Ch. J., and Jones, J.)
    Heard June 8, 1868;
    decided July 8, 1868,
    Appeal by the defendants from a judgment entered on the verdict of a jury.

      Mr. Odell, for the defendants, appellants.

      N. Niles, for the plaintiff, respondent.
   By the Court, Robertson, Ch. J.

On the trial in this action, the plaintiff testified, that he had advanced to Mr. Van Bokkelin a certain sum upon the oil in question ($1500) and had it put in storage, and got a receipt therefor; that he requested another Mr. Van Bokkelin to have it sold for cash bn arrival, and two ■ or three days after-wards found at his office, a writing which he termed “,a broker’s note.” This, in form, purported to be a purchase of the plaintiff, for account of the defendants, of the oil in question for a certain price ($1.85 per gallon) cash on delivery, and was signed with the name of “ George Leonard, Broker.” Ho evidence was given of the handwriting of the signature, or any authority from the defendants to any one to make such purchase for them. • It was offered in evidence and objected to as “ hearsay and not competent,” and an exception taken to its admission. ■ There was no other evidence of a sale offered, and the defendants’ counsel moved to dismiss the complaint upon the ground that there was no proof of a sale of the oil in question.

A written paper like that in question without proof of its origin, or by whom it was signed, or of the handwriting, of the signature, is clearly not admissible as evidence of the facts which it purports to state. Possibly after the plaintiff’s counsel was permitted to ask his client respecting it, and how he came by it, reading it may not have been objectionable, but what it proved after it was read, is another question. Where the proof of a deed is certified by the proper officer and there is a formal defect in the certificate, it must be pointed out specifically in the objection to its admission. (Norman v. Wells, 17 Wend. 136. Mabbett v. White, 12 N. Y. Rep. 442.) The insufficiency of a certificate in not stating all the facts necessary to make it available, cannot be taken advantage of, under a general objection that it was not duly authenticated. (Waterville Manufacturing Co. v. Brown, 9 How. Pr. 27.) But I am not aware that the admission of an instrument without any authentication, or proof of a signature, in evidence, against a general objection that it was incompetent, have ever been sustained.

But even if the objection to such evidence were not properly framed, it evidently, -by itself, was no proof of a purchase or sale. There wás no evidence of the existence of the person whose name was written at the foot of such paper; much less of any authority to him by the defendants to buy for them; and without that there was no proof of a sale to the defendants and the motion to dismiss should have been granted.

The judgment should be reversed, and a new trial had, with costs to abide the event.


text:
    James A. Polhamus et al. plaintiffs and respondents, vs. William Moser, impleaded, &c. defendant and appellant.
    Where, on a motion for a stay, without security, of proceedings upon a judgment for over $131,700, pending an appeal therefrom to the general term, it appeared that the defendant was worth much more tflan double the amount of the judgment; that his property was of a fixed character, and not liable to much fluctuation or depreciation in price or value; that he was engaged in a permanent business of long standing, and was free from debt; and his real estate, worth about $100,000, was already subjected to the lien of the judgment, and could not be discharged from it; Held, that it was a proper case for staying the proceedings without exacting security from the defendant.
    (Before Monell, J. at special term,
    December —, 1867.)
    This is a motion for a stay of proceedings upon a judgment, pending an appeal to the general term, of this court, without security.
    The action was tried by a referee, who gave judgment against the defendant for $131,749.62.
    From the judgment, the defendant Moser appealed to the general term.

      John A. (Godfrey and E. W. Stoughton, for the motion.

      Charles F. Sanford, opposed.
   Monell, J.

The defendant, in his moving papers, after stating that he has appealed in good faith, under the advice of counsel, that he is entitled to a reversal of the judgment, says, that he is a fur merchant in the city of New York, and has been engaged in such business for upwards of twenty years past. That the capital invested in such business is about $350,000, which capital consists of a stock óf furs and raw materials of about that value. He says there is no other judgment against him, and no suit or suits pending, except one for the recovery of eleven hundred dollars, to which he has a good defense'. That he purchases his merchandize almost exclusively for cash; and is not indebted to any one. He- further says he is the owner, in fee, of real estate, of the value of about $100,000.

In opposition, the plaintiffs stated in their affidavit, as tending to impair the responsibility of the defendant, that in February, 1867, he assigned a mortgage for $10,815, to pay a loss on Pacific mail stock contracts; That in March of the same year, he mortgaged property on Fifth avenue and Forty-ninth street. That in April, he assigned to the Mutual Life Insurance Company, mortgages upon real estate, amounting to upwards- of $100,000, for an expressed consideration of $80,000. That subsequently to, and about the time of the assignment, he purchased valuable real estate, °and had the title vested in his wife. In May he sold the same real estate, and in November, other real estate. On the 7th of December, he assigned a lease to his attorney, and executed mortgages for $55,000. It also appeared that the defendant was assessed for personal estate, for the year 1867, the sum of $20,000 only; and in 1866, he was assessed the sum of $50,000, but made oath that his personal estate did not exceed $20,000, and that he returned no income during the year 1866, liable to taxation under the-internal revenue laws of the United States. It was also stated that the defendant had lost about $70,000 in February, 1867, in sj;ock speculations.

In refutation and explanation of these statements, on the part of the plaintiffs, the defendant Moser in his counter affidavit stated, that the business in which he was engaged, was not of a fluctuating nature, or much liable to depreciation in value. In this he was corroborated by the affidavits of several fur dealers. He says that the mortgage assigned in February, was afterwards re-assigned to himself. That long prior to the commencement of this action, he was under contracts to purchase large quantities of real estate, and to enable him to complete which, he mortgaged the property on Fifth avenue and Forty-ninth street for $20,000, and that said property is worth $70,000. He likewise assigned the several mortgages to the Mutual Life Insurance Company, to enable him to complete other purchases of real estate, which purchases he made to be sold at an advance. He denied that the title to any real estate purchased by him was vested in his wife. He stated that the lease assigned to his attorney was held as security for a loan which was nearly paid, and was assigned to his attorney for him to assign over when the balance of the loan was paid, unaffected by the plaintiff’s judgment. That the two mortgages executed on the 7th of December, for $55,000, were for the purpose of obtaining security upon the appeal in this case, and have no other consideration. In explanation of the $20,000 assessment of personal estate, he says, he did not know that his stock of merchandize was subject to taxation.

This motion is addressed to the favor of th e court, and can only be granted in the exercise of a sound discretion, upon satisfactory proof that the rights of the plaintiffs will not be prejudiced, or they subjected to probable loss.

The judgment in this case is for a very large sum, and it is easy to see that more or less difficulty must attend the effort to get the requisite security to stay the proceedings upon the appeal. Nevertheless, the defendant should not be excused from furnishing such securty, unless it can be seen, looking at all the facts, that there is strong reason to believe that the defendant is the owner and possessor of property amply sufficient to render payment of the judgment certain, if it shall be affirmed.

I have examined the affidavits with close attention, and I am satisfied that the defendant is worth much more than double the amount of the judgment. That his property is of a fixed character, and not liable to much fluctuation or depreciation in price or value; that he is engaged in a permanent business of long standing, and is free from debt. His real estate worth, as he states, about $100,000, is already subjected to the lien of the judgment, and cannot be discharged from it.

Hnder these facts, I cannot believe there is any danger of loss to the plaintiffs. I cannot believe that the defendant either can or will dispose of his property, or place it beyond the reach of the plaintiffs’ judgment, and there is nothing in any of the statements of a supposed intention of the defendant to delay the proceedings, which has shaken my belief in the integrity of his appeal.

I think, therefore, his motion should be granted. In the constitution of the. appellate branch of this court, and the frequency of its terms, but little time need elapse before the appeal can be heard and decided.

Motion granted.