text:
    JOSEPH KAHLE, Plaintiff, v. HERMAN L. MULLER and CARL KNILLE, Defendants.

      Attachment — vacated when the affiant has no personal knowledge of the existence of the indebtedness — laches.

    Where, upon an application for an attachment, the allegations of the affidavit upon which it is based show that the affiant has no personal knowledge of the transaction creating the indebtedness, or give rise to a reasonable doubt upon that subject, the attachment should not be granted, or, if granted, should be vacated. Section 682 of the Code of Civil Procedure gives an absolute right to apply to the court to vacate an attachment at any time before the actual application of the attached property, or the proceeds thereof, to the payment of the judgment recovered in the action in which the attachment is obtained.
    Appeal by Welcome S. Jarvis, assignee for the benefit of creditors of the above-named defendants, from so much of an order-made at Special Term in the above-entitled action, under date of April 22, 1890, as denied the motion of said assignee to vacate and set aside the attachment theretofore granted in the above-entitled action.

      A. P. Whitehead, for Welcome S. Jarvis, assignee, appellant.

      Kopper & Jenks, for the plaintiff, respondent.
   Brady, J.:

The motion herein to be considered was made upon the insufficiency of the affidavit on which the attachment was granted, and the grounds were fully stated in the notice of motion served. The action was-brought by a plaintiff, who is the second assignee of the claim presented, and there is neither an allegation that he knew personally of the indebtedness nor statements as to the sources of his information in regard to it, if he have any, other than the assignments which he sets up. The second paragraph of his affidavit begins, “Upon information and belief,” and the other paragraphs begin, “That,” etc., the phraseology not being changed in any respect mentioned; so that the antecedent “ information and belief ” applies to all the averments, except, perhaps, such statements mingled with others as may be presumed to be within his knowledge. And these are only those that relate to the assignment to himself from the first, assignee of the claim, to his being the holder and owner of the claim, to the non-existence of counter-claims known to him; to the action having been brought for the cause stated and the fact that no previous application for an attachment had been made. The existence of the claim itself, the crucial point, is not, therefore, sustained by proof which is accepted by the courts as sufficient to warrant the issuing of the process of attachment. Assuming that, in form, the assertion of the indebtedness detached from the antecedent upon information and belief ” be sufficient, if it be apparent from the whole deposition that the affiant has no personal knowledge of the transaction creating the indebtedness, or if there be a reasonable doubt on that subject, springing from the allegations in reference to it, the attachment should not be granted or maintained.

It is an important and grasping process which, in a summary way, intervenes between the general creditors and the debtor’s property, and should not issue unless sustained as to the debt at least by satisfactory prima facie evidence. Here it is not. The right to it is questionably stated — it may be said, ingeniously set forth — as it seems to be, while it is not asserted by proper allegations when they are carefully considered.

It is also well established that other affidavits cannot be employed to supply deficiencies in the original application where the motion to vacate rests upon the latter, which was the move adopted here. The laches charged upon-the-assignee of the debtors, who makes the motion, is fully answered, if, indeed, the plaintiff could avail himself of that factor, supposing it to exist. His reasons are as follows:

Deponent further says that the reason why deponent did not sooner make the motion to vacate the attachment herein was that had the estate herein, realized the amount for which deponent supposed it was sold by the assignors prior to the assignment, there would have been sufficient assets over and above the attachment herein to have paid the amount which defendants had agreed to pay to creditors in Europe from their American assets, in full compromise of their indebtedness, and to pay all the American creditors in full; and it would have been a useless expense to the estate to make the motion under such circumstances. That afterwards, on account of enormous claims made by the vendees, deponent, with the knowledge and consent of the plaintiff, rescinded the said sale as to goods undisposed of by the vendees, and said goods were afterwards sold at auction for very much less than they were supposed to be worth, so that the amount realized at said auction sale will, with all other assets of the estate in this country, be barely sufficient to pay the plaintiff the amount of his attachment, with costs and expenses, leaving little or nothing’in deponent’s hands for distribution among the general creditors; under these circumstances dejionent deemed it his duty to make this motion. That said auction sale did not take place until March 21, 1890, and deponent on the same day caused the motion papers herein to be served.”

In addition to this, section 682 of the Code gives the absolute right to apply to vacate the attachment at any time before the actual application of the attached property or the proceeds thereof to the payment of a judgment recovered in the action.

The order appealed from should be reversed and the attachment vacated, with ten dollars costs and disbursements of this appeal.

Daniels, J., concurred; Yan Brunt, P. J"., concurred in the result.

Order reversed and the attachment vacated, with ten dollars costs and disbursements of this appeal.


source: Caselaw Access Project

author: Brady, J.: Daniels, J.: Van Brunt, P. J.:

license: Public Domain

text:
    HENRY WITTENBROCK, Plaintiff, v. L. MABINS and P. C. DRESCHER, Defendants.

      Witness, examination of, under a foreign commission — when he “sojourns” within this State within the meaning of section 916 of the Code of Civil Procedure.

    A person wlio resides in the State of New Jersey, but carries on Ms business in the county and State of New York, “sojourns,” within the meaning of section 916 of the Code of Civil Procedure, within the county of New York, and is properly required to make Ms deposition in that county when subpoenaed to give his deposition under a commission, issued out of the court of another State. (VanBrunt, P. J., dissenting.)
    Appeal by Egbert TJchtmann, a witness subpoenaed to be examined under a commission issued in the above-entitled action, from an order entered in the office of the clerk of the county of New York on the 17th day of April, 1890, denying his motion to vacate and set aside a subpoena or summons issued therein and directing him to appear before the commissioner, in said commission named, at his office in the city of New York, to there give his testimony as a witness in the above-entitled action.

      Henry O. Willcose, for the appellant.

      A. B. Porter, for the respondent, "Wittenbrock.
   Brady, J.:

The appellant was subpoenaed to attend before a commissioner to give testimony in an action pending in the Superior Court of Sacramento county, California, but moved to vacate the process upon two grounds.

First. That there was no proof presented to the learned justice showing his materiality as a witness, and,

Second. That he was neither a resident nor sojourner in this State.

The motion was denied and hence this appeal. •

The application in one respect was a complete misapprehension •of the provisions of the Code relating to the subject, and was so treated throughout. Section 915 provides for the examination of a witness, when a commission has been issued for that purpose, in an action pending elsewhere, in which case the presentation of the commission requires the issuance of a subpoena. The justice of this court applied to has, then, nothing else whatever to do with the matter. If satisfied there is a commission, that is enough, and for the reason not only that it is so by the demands of the section mentioned, but for the reason that the issuance of the commission determines the materiality of the witness to be subpoenaed. It is only when a commission has not been issued (§ 917) that a question ■is presented as to such materiality. The motion for that reason should have been denied, unless it appeared, as required by section 916, that the witness did not reside or sojourn in this county. It is conceded that he lives in the State of New Jersey, but does business in this city. Does such a person sojourn here ? He has a temporary residence or abode here undoubtedly during business hours, and this makes him a sojourner. (See Worcester and Webster.) Indeed, a sojourner has an abode less temporary than a man who goes daily from Iris actual residence to a place where he does business for that place for certain purposes, and very important purposes, as one of temporary residence. The statute referred to contemplates the examination of a traveler ■ temporarily residing or abiding in the county in which he is required to appear. The definition of sojourn by the authorities already cited is “ a temporary residence, as that of a traveler in a foreign land; a sojournerto have a temporary abode to live as not at home.” All that the statute designed to accomplish was to protect the witness from unnecessary inconvenience, by requiring his examination where he is, and a sojourner, even as a traveler, would be exposed to as little disturbance by a subpoena as possible. His examination there would be the least objectionable. If engaged in business, there can be no possible objection lo his attendance at the place where he conducts it, and he becomes from that fact more than a sojourner: He is one with a fixed abode during the business hours of the day, sojourning not as a traveler, but a quasi resident for an object and an important one.

The order appealed from for these reasons should be affirmed, with ten dollars cost and the disbursements of the appeal.

Daniels, J.:

I agree to the result on the ground that the witness to be examined has not been aggrieved or in any manner injuriously affected by the order. It was his duty to appear and testify as he was directed by the subpoena, especially after the order was made denying his application to set aside the subpoena. Section 1347 of the Code vested him with no authority to question the order by an appeal. I agree, therefore, to an affirmance of the order.

Van Brunt, P. J.:

I dissent. I cannot find that the court ever acquired any jurisdiction whatever over the appellant.

Order affirmed, with ten dollars costs and the disbursements of this appeal.


author: Van Brunt, P. J.:

text:
    WILLIAM NELSON CROMWELL and Others, Respondents, v. THE AMERICAN LOAN AND TRUST COMPANY, ROWLAND N. HAZARD and Others, Appellants, Impleaded, etc.

      Bill of interpleader — a receiptor to the sheriff for the goods in dispute cannot bring a suit in the nature of interpleader against other parties to determine the title to the goods.

    A party who is in the position of a receiptor to the sheriff, who has made a valid levy upon a certain stock of goods, and is, therefore, a bailee thereof, cannot by filing a bill of interpleader compel other parties to come into court and litigate their claims with the sheriff. Such a party does not stand in the position of a person who has come into the possession of property innocently, and has been unexpectedly assailed, without any instrumentality on his part, by different claimants of the property.
    Appeal by the defendants Rowland N. Hazard and the American Loan and Trust Company from an interlocutory judgment overruling the demurrer of said defendants, entered in the office of the clerk of the county of New York on the 24th day of February, 1890, after a hearing at a Special Term of the Supreme Court held in the city of New York.

      Grane de Lockwood, for the appellants.
    IF. J. Gu-rtis, for the respondents.
   Van Brunt, P. J.:

This action was brought by the plaintiffs for interpleader concerning 100 shares of the capital stock of the Mann Boudoir Car Company.

The complaint alleged the copartnership of the plaintiffs; the incorporation of the American Exchange in Europe; the appointment of a receiver of the Exchange; the incorporation of the defendant, the American Loan and Trust Company, and the fact that the defendant Grant was sheriff of the city and county of New York prior to the 1st of January, 1889. The complaint then alleges the making of certain promissory notes by one Eugene D. Mann and W. D. Mann and the indorsement and delivery thereof to the American Exchange, and that the Agawam National Bank became the owners thereof; that the notes were not paid at maturity and actions were brought upon them and judgments recovered and executions issued to the sheriff of the city and county of New York, which executions are still outstanding and unsatisfied.

That prior to the delivery of the two notes to the American Exchange in Europe, said defendants Mann, as security for the payment thereof, and of any other indebtedness, delivered 100 shares Mann Boudoir Car Company stock to said American Exchange in Europe, which was issued to defendant Pippey, and whose indorsement in blank was and is on the back thereof; that when the notes were delivered to the Agawam Bank the stock was also delivered as security therefor, and the interest of the American Exchange in Europe therein was assigned to said bank.

That subsequently the plaintiffs received said 100 shares of stock from said American Exchange, which corporation then held said stock as agents of the Agawam National Bank; that thereafter said judgments were duly assigned by the bank to one of the plaintiffs,. Curtis, in trust for the benefit of said American Exchange; that thereafter, at the request of the said American Exchange, the plaintiffs-delivered said stock to the defendant Hazard as security for a loan; that thereafter Hazard delivered said stock to the plaintiffs for the purpose of having the same levied upon by the sheriff of the city and county of New York, acting under and by virtue of the executions upon said judgment obtained in favor of the Agawam Bank against the defendants Mann; that thereupon the sheriff levied upon said stock then in the possession of the plaintiffs, who gave to the sheriff a receipt therefor, which receipt the sheriff now holds; that although the levy still exists as a valid levy, and although said executions are still outstanding in the hands of the sheriff, said stock has never been sold; that the receiver of the American Exchange has demanded said stock from the plaintiffs, and that the defendant, the American Loan and Trust Company, has demanded said stock from the plaintiffs, claiming that it was deposited by said American Exchange as collateral to a loan ; that the defendant Pippey claims to be the legal owner of said stock and has demanded the delivery thereof to him; that defendants Mann claim the right to redeem said stock on payment of the amount of said judgments and interest, and that the said stock should be delivered to them; that plaintiffs have attempted to ascertain the true and lawful owner of said stock, but have not been able to determine the same.

The complaint further alleges that, by reason of the premises, and of the conflicting claims to and liens upon said stock, the plaintiffs are ignorant of the respective rights of the said several defendants to said stock, and do not know to whom the same should be delivered, and cannot safely determine for themselves the said claims or deliver the said stock, and that they cannot safely deliver said stock to either of the defendants without the decree of the court directing to whom such delivery shall be made; and that the plaintiffs have no claim, interest or lien upon said stock, and are ready and willing to deliver the same to such persons as the court shall decree, and it asks relief that the defendants may be restrained by injunction from bringing any suit in respect to this stock against the plaintiffs.

The defendants, the American Loan and Trust Company and Hazard, demurred to the complaint; the demurrer was overruled, and from the judgment thereupon entered this appeal is taken.

It seems to be assumed, upon the part of the counsel, that this is either a bill of interpleader or a bill in the nature of interpleader. Unless this concession had been made, it might be doubtful as to whether this complaint could be construed as a bill in the nature of an interpleader. Considering the pleading as it has been construed by the counsel in their presentation of this appeal, we do not see how the action can be maintained. The plaintiffs did not stand indifferent as between the defendants. They have assumed a contractual relation to the sheriff; have agreed to hold the stock for him; have alleged that the sheriff has made a valid levy upon the stock and that they are holding the same as receiptors. They are, therefore, bailees thereof, and we do not understand that where such a relation exists, that such bailees can compel other parties to come into court and litigate their claims with their bailor. The plaintiffs have voluntarily placed themselves in this position. One of the plaintiffs was the assignee of the judgments upon which the executions were issued to the sheriff; and for the purpose of subjecting this stock to a levy under execution they accepted the custody of the stock and notified the sheriff to make his levy. This was evidently done for the purpose of anticipating other claims against the stock, and it is clear, therefore, as already stated, that the plaintiffs did not stand indifferent between these parties, but have been assisting the one to the detriment of the other. They do not stand in the relation of persons who have come into the possession of property innocently, and have been unexpectedly assailed without instrumentality of theirs by different claimants.

It appears from the allegations in the complaint, as far as some of these claims are concerned, that they were the active agents who created them, brought them into being, and it is difficult to see how they can now escape the responsibilities arising from their creation.

The judgment should be reversed, with costs to the appellants; the plaintiffs to be at liberty to amend on payment of the costs of the court below and of this appeal.

Brady and Daniels, JJ., concurred.

Judgment reversed, with costs to the appellants; the plaintiffs to be at liberty to amend on payment of costs of the court below and 'of this appeal.


text:
    JOHN R. DUFF, Appellant, v. WILLIAM J. HUTCHINSON and GEORGE H. KENNEDY, Respondents.

      Action to rescind a contract — not maintainable where it appears that the plaintiff cannot make restitution — rule at law and in equity — reformation of a general release.

    In proceedings to procure a rescission of a contract, a distinction exists between tbe rule in equity and tbe rule at law, in that, in the former it is not necessary to tender restitution before the action is brought, but it is necessary, in a suit in equity, to offer restitution in the complaint, and if it appears that the plaintiff is incapable of making restitution, then an action for the rescission of the contract will not be sustained.
    An instrument of general release cannot be restricted in its operation to those frauds which were actually in the mind of the party giving it, when it was given, in a case in which such party subsequently finds that he was ignorant of the existence of certain other frauds which it was not intended by him that the instrument should cover, and that he ought to have been more careful in giving it. It maybe set aside, but it cannot be restricted because of fraud, where the party knew the nature of the instrument which he executed and there was no mutual mistake.

      Appeal by tlie plaintiff from a judgment, entered in the office of the clerk of the county of New York on the 18th day of September, 1888, dismissing the plaintiff’s complaint upon the merits, with ■costs, after a trial at a Special Term held in the county of New York.

      .E. W. Poioers, for the appellant.

      J. PC. Choate da W. B. Put7iey, for the respondents.
   Van Brunt, P. J.:

This action was brought to have a certain general release executed by the plaintiff in favor of the defendants limited and confined in its operation and effects to three specific matters and transactions between the parties, and for an accounting between the parties as to ■all other matters or transactions between them.

It appeared upon the trial that the defendants were copartners doing business as stockbrokers and bankers, and had been such for five years and more preceding the 31st of December, 1881 ; and that the defendants during such period transacted business for the plaintiff in buying and selling stocks and bonds, in the course of which the ■defendants received from the plaintiff large sums of money and large •amounts of stocks and bonds, and paid out for the plaintiff large sums ■of money and charged him with divers sums as interest' and commissions on purchases and sales.

On the 31st of December, 1881, the said firm dissolved and a settlement was made between the copartners, and one of the defendants withdrew entirely from the business; a summary statement of all transactions between the plaintiff and defendants up to the time of such dissolution was made and delivered to the plaintiff, but the plaintiff then, or shortly thereafter, claimed that it was not correct. Between the 1st of January and the 2d of March, 1882, the plaintiff obtained and received information which he claimed satisfied him that the defendants had defrauded him and that the account, as kept by the defendants, ivas irregular and fraudulent towards him. On the second of March the plaintiff claimed, by reason of the irregular and fraudulent transactions and accounts of the defendants, to be entitled to receive the sum of $1,000,000. The defendants denied the charges and denied that the plaintiff was entitled to. receive anything. Thereupon an agreement was made, by way of compromise between the plaintiff and the defendants, by which the plaintiff agreed to accept from the defendants a lump sum of $750,000, in full and complete settlement of all claims against the firm, and thereupon the defendants paid to the plaintiff the sum of $750,000 and the plaintiff executed and delivered a general release to the defendants. The plaintiff subsequently, claiming to have discovered other errors in said accounts than those which he had discovered at the time above-mentioned, brought this action for an accounting against the defendants, and that the said release be limited and confined to the specific matters known to the plaintiff at the time at which the release was given. The complaint contains no offer whatever to return the $750,000 received at the time of the execution of the release, and the evidence upon the trial shows that the plaintiff was incapable of making such return, and did not even offer to do so upon the trial.

Upon this state of facts the court dismissed the complaint, and from the judgment thereupon entered this appeal is taken. It is conceded, upon the part of the plaintiff, that if an action at law had been brought against the defendants, it would have been necessary for the plaintiff prior to the beginning of the action to have offered to return the $750,000. (Gould v. Cayuga Nat. Bank, 99 N. Y., 337.) It is claimed that an action at law proceeds upon the theory that there has been a rescission but that a suit in equity does not, but upon a diametrically opposite theory that there has been no reseisson and asks the court, by its judgment, to rescind. It is a suit seeking a rescission, and, so far as restoring the party to his original position is concerned and placing him in statu quo, the rule in equity is satisfied if the judgment will accomplish that result.

¥e think that the appellant is mistaken in reference to the rule in equity. The distinction between the rule in equity and the rule at law seems to be that in equity it is not necessary to tender restitution before action brought, but in the complaint restitution must be offered, and if it appears that the plaintiff is incapable of making restitution, then the action for a rescission will not lie.

In the case of Gould v. Cayuga National Bank, above cited, it is distinctly held that a party cannot be permitted, under any circumstances, to keep the fruits gained by a settlement and litigate the question whether he is to be bound by it or not In other words, the plaintiff will not be allowed, even in equity, to assume the position that if beaten he will keep what he has got, and if successful he will get what he can.

The case of Allerton v. Allerton (50 N. Y., 670) gives no countenance to the rule sought to be established. In that case it was simply held that restitution should not be required because it appeared that, under any circumstances, the money which had been received belonged to the plaintiff, rescission or no rescission. The cases on the subject of rescission and the circumstances under which restitution is necessary before the granting of equitable relief are stated in Metropolitan Elevated Railway Company v. Manhattam Elevated Railway Company (11 Daly, 373). In that case restitution was not held to be a condition precedent to rescission, because it. appeared upon the face of the papers that, under any circumstances, the plaintiff was enticled to the money which it had received, whether the contract sought to be rescinded was in existence or not.

In the case at bar the frauds alleged by the plaintiff against the defendants, were denied. These $750,000 were received in settlement of a disputed claim, and if the plaintiff desired to open that, settlement the defendants had the right to contest the items included therein, and to be placed in a position to have an effective judgment in case they should succeed. They were not bound to go into the discussion of this question with the certainty that if they succeeded the plaintiff would be no worse off because he already had that-which had been paid in the settlement and which he was in no condition to return.

The principle, which is the cardinal principle governing all applications to a court of equity, that a party seeking equity must do equity, applies to a case like the one at bar. It would be the height of injustice to allow this plaintiff to litigate this question with no chance in case he should fail of losing anything that he had gained by the settlement.

It is only in those cases where restitution is offered, and it appears that restitution can be made that a court of equity will wait until final judgment to determine whether restitution should be made or not. Where it appears at the commencement that restitution cannot be made that ends the right of the plaintiff to have his action for rescission considered by a court of equity.

It is clear that the plaintiff was not in a condition, upon the proof •offered by him, to claim that the release should be restricted to the items to which he says it was intended to refer. The evidence shows beyond question that he intended - to give a general release, that was what was demanded, and that was what he agreed to give, .and it was for that he received the $750,000.

That he did not know at that time of other frauds does not affect this proposition. An instrument cannot be restricted because a party subsequently finds he ought to have been more careful in giving it. It may be set aside because of fraud. It cannot be restricted because of fraud where a party knows the nature of the instrument which he has executed.

In the case at bar the plaintiff, having executed a release with full knowledge that it was a general release in settlement of differences between himself and the defendants, claims subsequently to have discovered other frauds of which he was not aware when he executed the general release. He comes into a court of equity and claims to have this release shorn of its definite character, because he had not in mind the releasing of anything else but that of which he then knew. In other words, he is endeavoring to give for his $750,000 an entirely different instrument from that which he knew he agreed to give the defendants for that sum.

There was no case of mutual mistake. There was no misunderstanding in regard to the ¿terms; that is, the plaintiff knew perfectly well the character of the instrument he was signing, and, under such circumstances, the instrument cannot be reformed, for that is substantially the relief which the plaintiff asks for upon this branch of the case.

Upon the whole case, therefore, we do not see how it is piossible, upon the conceded facts, for the plaintiff to maintain his action, .and the judgment appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.


author: Vn Brunt, P. J.:

text:
    CHARLES G. MARTIN and WILLIAM C. MARTIN, Appellants, v. HATTIE W. BLISS, Respondent.

      Real estate broker — acting in bad faith, is not entitled to any commission.

    Where a broker, employed to sell real estate, instead of using bis best efforts to further the interest of his principal, attempts to induce his principal to take less than the price fixed by her, although such price has already been accepted by a proposed purchaser', the broker is not entitled to recover any commissions for his services.
    Appeal by the plaintiffs from a judgment in favor of tlie defendant, entered in the office of the clerk of the county of New York on the 26th day of November, 1889, dismissing the plaintiffs” complaint, with costs, after, a trial before the court and a jury at the New York Circuit.

      O. U. Bovee, Jr., for the appellants.

      L. B. .Beoleley, for the respondent.
   Vn Brunt, P. J.:

The material facts proved upon the trial were as follows: The plaintiffs in this action were real estate brokers, and the defendant was the owner of premises No. 31 West Thirty-second street, in this city.

Early in May, 1886, the plaintiff Charles G. Martin called at the house of defendant and asked her if she wanted to sell her house, and told her that he had a party that wanted to buy and would give a good price for the house. She said that she would not sell it. The plaintiff told her that if she changed her mind he would be glad to hear from her.

On the twelfth of May, in consequence of a message received, Mr. Martin called upon the defendant again, who told him that she had concluded to sell her house if 'she could get her price, which was $50,000.’ Mr. Martin then told her that he had just left a gentleman at his office, a Dr. Bozeman, whom he thought would buy her house, but he did not know whether he would give $50,000 for it, but that he would go and see. The defendant replied that she did not- want anybody brought there unless he was willing to give $50,000, because that was the lowest that she would take.

When Mr. Martin returned to his office Dr. Bozeman had left, and he left word with, his son, the plaintiff, William C. Martin, when the doctor came in, to take him to see tlie house. On the same day Mr. William C. Martin went with Dr. Bozeman to see the house. They were shown the house by the defendant. Mr. William C. Martin asked lier if any less offer than $50,000 would be accepted for the house; her reply was, “Not one penny; I will sell it for $50,000, and no less.” After some further conversation, Dr. Bozeman left, Mr. William O. Martin stating to him that he would be around to see him in a few minutes.

Mr. Martin then, after vainly striving to get the defendant to take less for her house, said to her, “ If I can get you $50,000 from the doctor will you pay me a $1,000 ? ” Slie said, “ Why, no; why should I pay you a thousand dollars ? ” Mr. Martin asked her if .she would pay him $750, and she refused; finally, she said, I will give you a check for $600 if you can sell the house for me for $50,000. Mr. Martin then left lier, stating that he would go and .see the doctor, and if he could get an offer out of him he would be back in half an hour. Mr. Martin then saw the doctor, who told him ■to go back and close tlie bargain, that is, buy tlie house at $50,000.

Mr. Martin then went back to see tlie defendant and said to her that he could offer $45,000 or $46,000 or $47,000, a little less than $50,000 spot cash for her house if slie would throw in the coal in the house and some other ’things. She replied that it was a waste ■of time to talk less than $50,000, and that slie would not throw in the coal, that she would include the other things. Mr. Martin then •asked her if she would take $48,000. She said no. Forty-nine thousand dollars cash % She refused, and finding that he could not beat her down in her price, Mr. Martin finally said, Yery well, we will take the house at $50,000. She replied: “'Yery well; I am glad I had no more trouble about it.”

It was arranged that the defendant should sign the contract at ten o’clock the next morning. The next morning Mr. Martin called with a contract drawn .up for the defendant to sign, which she refused to do, and the defendant having refused to complete the contract, the plaintiffs brought this action to recover the $600 which it is claimed was due because of their production of a customer willing to pay $50,000 for the house of the defendant.

Tlie only relations existing between Dr. Bozeman and the plaintiffs were that they had called his attention to the house in question and invited him to go to the house and see it. They were not working for Dr. Bozeman, expecting a commission, and were not his employees. Upon this state of facts the complaint was dismissed, and from the judgment thereupon entered this appeal is taken.

In order to entitle a broker to his compensation it is not necessary that a conveyance of the property intrusted to him for sale should actually be consummated between his employer and customer. All that is necessary for a broker to show is that he has been employed by the owner, and that he has produced to his principal a customer who is willing to purchase upon the terms fixed by the principal, and who is able to comply with those terms. This being done a broker is entitled to his compensation under ordinary circumstances. In the case at bar the broker shows employment and the production of a customer, able and willing to comply with the terms fixed by the principal. It is claimed upon the part of the defendant that, notwithstanding the existence of these facts, the broker is not entitled to recover, because in the course of his employment he has been guilty of bad faith towards his principal; that, instead of using his best efforts to further the interests of his principal, the broker in the case at bar worked against them, used his utmost efforts to induce the defendant to take less for her house than the price fixed by her, when the defendant’s terms had already been accepted by the proposed customer.

The plaintiffs claim that this defense is not available because not pleaded, and in support of the proposition cite the case of Duryee v. Lester (75 N. Y., 442), in which it was held that in that case the question of double employment could not be considered because no such objection was taken in the court below; and it is further stated that the matter properly should have been pleaded.

In the case at bar no question was raised in the court below. The proof as to the bad faith of the broker was received without objection. No question as to the sufficiency of the answer was suggested, and it is now too late to raise that objection, as in order to support the judgment the court would now, if necessary, direct the pleadings to conform to the proof.

The plaintiffs further urge that there was no bad faith upon their part because the defendant knew that they were employed by Dr. Bozeman.

Even if the plaintiffs had been employed by Dr. Bozeman, which the proof shows they were not, yet they owed some duty to the defendant. They knew when they were trying to beat down the defendant in her price that Dr. Bozeman had accepted the defendant’s terms, that he was not only willing to pay the price asked, but anxious to get the house upon those terms. They had his directions to close the bargain, the direction to do the best they could for him given by Dr. Bozeman evidently relating only to the throwing into the bargain of the coal and other things.

The plaintiffs, however, instead of stating to the defendant that Dr. Bozeman had accepted her proposition, endeavored to beat her down in her price and to get her to take less, fraudulently concealing from her the fact that Dr. Bozeman had acceded to her terms. Certainly some good faith is required as between employer and employee. An agent owes some duties to his principal, and because a man is a real estate broker he is not relieved from the ordinary principles governing the relation of principal and agent.

It is undoubtedly true that a broker may in some instances act for two parties where they have conflicting interests, as in the case of exchange of property, which was the fact in the cases cited by appellants’ counsel (Rowe v. Stevens, 53 N. Y., 621; Jarvis v. Schaefer, 105 id., 289), but even then he is bound to fair dealing; and it has never yet been decided, even in such a case, that a broker could conceal from one principal the acceptance of an offer by the other, and endeavor, with knowledge of that acceptance, to get lower terms from that principal and yet recover his commission as compensation for services rendered. But the plaintiffs in this action were not employed by Dr. Bozeman. They themselves say they were not. The relation of employer and employee, principal and agent, did not exist between them. Dr. Bozeman says he wanted a house, and at the plaintiffs’ request went to see the house in question. The plaintiffs say that they expected no pay from Dr. Bozeman, yet they seem to liave' been more zealous for his interests than for those of their principal.

The plaintiffs, therefore, were the agents of the defendant, and of the defendant only, and owed to her their best endeavors. This she was entitled to receive, and unless they gave them to her they have not fulfilled their obligations to her 1

That she did not receive -their best efforts is conceded, as after they knew that Dr. Bozeman had accepted her offer, they endeavored to beat her down in her price, This clearly was a fraudulent act upon their part, and simply because they did not succeed in cheating their employer, having used their best efforts to do so, can it be said that they have fulfilled their obligations to her ? .

The servant who tries to cheat and defraud his employer, but fails, stands in the same category as the servant who succeeds. The act is the same whether successful or not.

It seems to me that a court cannot countenance such a breach of fidelity as the facts of this case exhibit; if it does, it would seem to hold that, as between employer and employee, good faith and honest service are not required to entitle the employee to compensation which was supposed to depend upon his fidelity to the interests of his employer.

The judgment appealed from should be affirmed, with costs.

Barrett and Bartlett, JJ., concurred.

Judgment affirmed, with costs.


author: Van Brunt, P. J.: Daniels, J.:

text:
    PLYMOUTH SOCIETY OF MILFORD, Plaintiff, v. MARY C. HEPBURN, as Executrix, etc., Defendant.

      Bequest — when its vesting is postponed to the time of the termination of a prior estate„
    A testator, by bis will, gave tbe rents, etc., of bis estate, real and personal, to his widow and son during their joint lives, and to tbe survivor, and further provided as follows: “ Upon tbe decease of my said wife and son, be not leaving lawful issue them surviving, I authorize and empower tbe then executor or executors hereof ” to sell and convey tbe real estate belonging to said estate. Tbe will further provided: “Upon tbe decease of my said wife and son, be not leaving lawful issue them both surviving, as aforesaid, I give and bequeath my estate, and tbe proceeds and sales of my real estate, as aforesaid, as follows: * * * Tbe sum of one thousand dollars to the Second Congregational Society of tbe town of Milford, in tbe State of Connecticut, to be by said society placed and forever kept out at interest- for the purposes following ” — the interest to be applied to keeping in order a burying lot owned by t-lie testator, and the excess, if any, to be applied to the salary of the minister.
    The said society was disqualified from taking this legacy at the time of the testator’s death, but subsequently, and before the death of the survivor of the life tenants, became authorized by statute to take the bequest.

      Held, that, under the provisions of the will, the bequest to the corporation did not vest until the death of the survivor of the wife and son; that there was no intention to make an immediate bequest to the corporation, to take effect inpnmnti.

    A case submitted without controversy, upon an agreed statement of facts, under section 1279 of the Code of Civil Procedure.
    The submission-was'madeforthe purpose of obtaining a construction upon the provisions of the last will and testament of David Hepburn, formerly of the city of New York.

      Horace Barnard, for the plaintiff.

      J. O. O' Oonnor, Jr., for the defendant.
   Van Brunt, P. J.:

It appears that David Hepburn departed this life in the city of New York in the year 1815, leaving a last will and testament which was duly admitted to probate by the surrogate of the county of New York in 1816, and letters testamentary were duly issued thereon to Susan Hepburn, the wife-of the testator. The testator died leaving him surviving his widow, who died in March, 1889, and his son George Mix Hepburn, who died without issue in March, 1885. Subsequently the defendant Mary C. Hepburn was appointed administratrix with the 'will annexed.

By his will the said David Hepburn gave the rents, income and profits of all his estate, real and personal, to his widow and son equally to be divided between them during their joint lives, the survivor to take the whole of such income ; and upon the decease of his wife and son, he leaving lawful issue surviving the survivor, the testator gave, devised and bequeathed all his estate to such issue ; and upon the decease of his wife and son, he not leaving lawful issue them surviving, he authorized and empowered his executor or executors, the survivor or survivors of them, to sell and dispose of all his real estate, etc.

The testator further provided as follows: “ Upon- the decease of my said wife and son, he not leaving lawful issue them both surviving as aforesaid, I give and bequeath my estate and the proceeds and sales of my real estate as aforesaid as follows, that is fo say: ”

He then gave a legacy of $500 to his mother-in-law, and then follows the clause which forms the subject of dispute in this action :

Eighth. I give and bequeath the sum of one thousand dollars to the Second Congregational Society of the town of Milford, in the State of Connecticut, to be by said society, placed and forever kept out at interest for the purposes following, that is to say, from out of such interest-money to keep the burying lot owned by me, situate in said Milford, in repair by painting the iron fence surrounding the same black once in each year, and forthwith, from time to time, as often as may be necessary, to repair said fence, the monument thereby inclosed, and keep said lot and all things appertaining thereto at all times in good repair, order and condition, and cause to be made or cut on said monument suitable inscriptions relative to my own decease, the decease of my said wife and son — that is, of such of us as shall be there interred, and pay and apply the balance of such interest-money towards discharging the salary of their minister for the time being.”

The plaintiff, a Connecticut corporation, having accepted this legacy and demanded the same, the administratrix has declined to pay the same upon the ground, first, that the legacy was void; second, that the plaintiff was not qualified to take, and third, that the claim was barred by the statute of limitations.

It seems to be conceded that, at the time of the death of the testator, the plaintiff had not the capacity to take. But it appears that subsequently, and before the death of the survivor of the life tenants in the year 1885, the statutes of Connecticut were so amended as to enable the plaintiff to take.

One of the questions, therefore, presented is, whether the vesting of the legacy was, by the will, postponed until after the death of the survivor of the life tenants. "We think that it was so postponed, and that no interest vested until the death of the survivor of the life tenants, and that such was the intention of the testator.

It is to be observed that in every instance where he speaks of the happening of an event upon which depends a bequest, there is no devise until the happening of the event. He does not give a vemaindei over under any circumstances, but he says upon the decease of my wife and son I then give, etc. This is the language used when he is speaking about his son leaving lawful issue, and such issue must survive both the son and the wife before any interest is devised. As has been observed, the testator says: “ Upon the decease of my said wife and of my said son, he leaving lawful issue both him and her surviving, I then give, devise and bequeath all my estate * * * unto such issue.”

This same idea is carried out where the testator deals with the possibility of his son and wife dying, his son not leaving issue both surviving. “ Upon the decease of my said wife and son, he not leaving lawful issue them surviving, I authorize and empower the then executor or executors hereof * * * to sell,” etc. And subsequently he says: Upon the decease of my said wife and son, he not leaving lawful issue them both surviving, as aforesaid, I give and bequeath my estate, and the proceeds and sales of my real estate as aforesaid as follows: ” Showing that it was his intention that the bequest should come into effect upon the happening of' the contingency of the death of his wife and son, his son not leaving issue both surviving, and there was no devise before that, bringing the character of the bequest within the definition of an executory devise as they were understood to be before the passage' of our Revised Statutes where contingent remainders and executory devises were blended into one.

This is illustrated by the case of Burrill v. Boardman (43 N. Y., 258), where the devise was supported as an executory devise. And the rule is laid down that when it appears from the will that, the donee is to come into being in the future, or to become qualified to take upon the happening of some future event, a present bequest will not be presumed, nor unless there is not the least circumstance from which to collect the testator’s intention of anything else than an immediate devise to take effect inprmenti.

In the case at bar, as already stated, the plain intention of the testator was that the power to take should depend upon the happening of a future event, and that there was no intention to make an immediate devise to take effect inprmsmbi.

Under these circumstances, then, if at the tim,e of-the happening of the event the plaintiff had capacity to take, the gift then went, into effect according to the intention of the testator.

In this view it is clear that the statute of limitations cannot apply. And it is difficult to see how it could apply in any case, because the right of possession certainly did not arise until the death of the survivor of the life tenants, and until there was a right of possession on the part of a legatee he has no claim upon the executor which he -can enforce.

Therefore, the statute of limitations does not run. The plaintiff seems, therefore, to be entitled to judgment.

Beady, J., concurred.

Daniels, J.:

Before the time arrived for the directions concerning the legacy .to take effect, and in the year 1885, a statute of the State of Connecticut was enacted, sustaining legacies for the preservation, care and maintenance of cemetery lots and monuments thereon. This statute has since been in force, and it comprehends this case, inasmuch as the testator’s widow did not depart this life until the year 1889. And by a still preceding law, a legacy for the maintenance of the ministry of the Gospel had also been sanctioned. In both of its objects, the directions of this testator had been anticipated by the laws of the State of Connecticut where the society existed for which the legacy was provided. And the plaintiff, for these reasons and those mentioned by the presiding justice, is entitled to recover it.

Judgment for plaintiff.


author: Van Brunt, P. J. :

text:
    In the Matter of the Probate of the Last Will and Testament of JANE E. KELEMEN, Deceased.

      Bequest in a will to a charitable society — codicil transferring such bequest to an individual with a request to carry the will into effect — death of testatrix within two months —fa/rol evidence as to the intention.

    A testatrix made lier will in February, 1889, and a codicil a few days thereafter in the same month, and died in March, 1889. By the fifth paragraph of the will the testatrix bequeathed certain legacies to several charitable societies, and by the ninth clause bequeathed and devised her residuary estate to one of said charitable societies. By the codicil she provided as follows: “Doubts having arisen as to the validity of the bequests made for charitable purposes in my said will, I hereby modify said will, dated February 18, 1889, by making my friend, Townsend Wandell, my residuary legatee and devisee, and hereby request him to carry into effect my wishes with respect thereto; but this is not to-be construed into an absolute direction on my part, but merely my desire. In all other respects I ratify my said will and testament, dated February 18, 1889.”
    The legacies to the charitable societies mentioned in the will were rendered void by the death of the testatrix within two months' after the making of the will.
    Upon the probate of the will evidence was given as to the circumstances attending the execution of this codicil, not for the purpose of contesting the probate, but ' with the view of establishing an agreement between the testatrix and Wandell, whereby the latter was to carry out the provisions of the will in favor of the charitable societies.

      Held, that the intention of the testatrix must be gathered from the will itself, and that parol evidence as to the intention could not be resorted to for the purpose of destroying the codicil, which, upon its face, was not in violation of any statute.
    That the codicil was not in contravention of the statute, making legacies to certain charitable societies void in case of the death of the testatrix within two months after the making of the will.
    That by the codicil Townsend Wandell took an absolute estate for his own use.
    Appeal by James R. Hall and others, the next of kin of Jane E. Kelemen, deceased, from a decree of the surrogate of the county of New York, entered in the office of the clerk of the surrogate of the county of New York on the 27th day of November, 1889, adjudging that the true construction and legal effect of certain clauses of said will, and of the codicil thereto, when taken together, were that the bequest of the residuary estate to Townsend Wandell, the legatee therein named, was valid, and that the said Townsend Wandell was free to appropriate and use the same as his own.

      David McClure, for the appellants.

      Jacob F. Miller, for the respondent.
   Van Brunt, P. J. :

The will in question was made and executed in February, 1889, and the codicil a few days after in the same month. The testatrix died in March, 1889. By the fifth paragraph of the will the testatrix bequeathed certain legacies to certain charitable societies, and by the ninth clause bequeathed and devised her residuary estate to one of said charitable societies. The codicil in question was as-follows:

“ Doubts having arisen as to the validity of the bequests made for charitable purposes in my said will, I hereby modify said will, dated February 18, 1889, by making my friend, Townsend "VVandell, my residuary legatee and devisee, and hereby request him to carry into effect my wishes with respect thereto. But this is not to be construed into an absolute direction on my part, but merely my desire. In all other respects I ratify said last will and testament dated February 18, 1889.”

It is conceded that the legacies to the charitable societies were made void by the death of the testatrix within two months after the making of the will, and that the only question for consideration was whether the gift to Wandell by the codicil, which revoked the ninth clause of the will, was valid; and it is also conceded that a finding that it was valid necessarily excluded a finding that there was any trust for the benefit of the next of kin or of anybody else, or any agreement between the deceased and "Wandell whereby the latter was to carry out any trust.

Parol evidence was given of the circumstances attending the execution of this codicil, not for the purpose of contesting the probate of the same, but for the purpose of establishing an agreement between the deceased and Mr. Wandell, whereby the latter was to carry out the trust, thereby making the codicil void as contravening the statute.

Ilpon what theory evidence of this kind is admissible I cannot comprehend. It is a cardinal principle in the construction of the terms of a will that the intention of the testator must be gathered from the will itself; parol proof only being permissible to show the condition of the estate and the surroundings of the testator, and that conversations as to the intention, or even written memoranda, cannot be resorted to for the purpose of sustaining a will which is apparently against the provisions of the statute, much less to destroy a will which, upon its face, is not in contravention of any statute.

It is true that evidence of this kind was received in the Matter of O’Hara (95 N. Y., 403), and that such evidence was commented on and formed the basis of the judgment of the Court of Appeals in the construction of that will.

But no point whatever was raised in the courts below as to the propriety of such evidence, and that court may not have felt it incumbent upon it to take the objection. As this court in the case of appeals from the Surrogate’s Court is a court of original jurisdiction, we should only consider legal evidence in determining the question as to whether a decree should be reversed or affirmed.

It seems to be conceded by the counsel for the appellant that, considering the codicil itself, there is no contravention of any statute, and that it is only by force of the proof of transactions outside of the will itself that the existence of a trust can be established.

I do not think, until it is finally decided, that the provisions of a will may be declared invalid because of parol proof of what the intention of the testator was, which intention is not expressed in the will, that we should interfere with the intention of a testator as expressed .in his will.

All that can be gathered from the language of the testatrix in the will in the case at bar is the expression of a wish on her part. She was careful to guard against the implication of having imposed an obligation. The language of the codicil carefully recognizes the distinction between a request and a direction; and it would appear that the testatrix knew that if she gave a direction the codicil would be void, but that if it was merely a request, a trust did not arise and the residuary bequest would be valid.

In the ease of O’Hara, above cited, the bequest was declared void because it was found to have been made upon a promise by the executors to carry out the wishes of the testator. And it was because of this promise that the court held that a trust arose. In the ease at bar there is no promise; there is no direction, but merely a request, which it was optional with the residuary legatee to carry out or not as he pleased.

We think, therefore, that the codicil was not in contravention of the statute and the decree should be affirmed, with costs.

Brady and Daniels, JJ., concurred.

Decree affirmed, with costs.


text:
    GARFIELD NATIONAL BANK, Respondent, v. FRANK W. COLWELL, Appellant.

      Agreement between the maker and payee of a note that the former shall not be liable thereon — enfoi'ced against an indorsee having knowledge tKereof.

    Where, at the time that a note is discounted there is a distinct understanding between the maker of the note and the payee, which is stated to the bank at which it is discounted, that the maker should incur no liability hy the signing of the note, he will not be held liable thereon to the bank which has discounted it.
    Such paper is not mere accommodation paper, and is, under such circumstances, unenforceable against the maker thereof.
    Appeal by tbe defendant Frank W. Colwell from a judgment, entered in tbe office of tbe clerk of tbe county of New York on tbe 7 th day of February, 1890, in favor of the plaintiff; and from an order of said court denying tbe. defendant’s motion for a new trial, entered in said office on the 26th day of February, 1890, after a trial at the New York Circuit before the court and a jury, at which a verdict in favor of tbe plaintiff was directed by the court.

      W. B. Ellison, for tbe appellant.

      L. G. Wctehner, for tbe respondent.
   Van Brunt, P. J.:

This action was brought to recover tbe balance remaining due upon a promissory note made by tbe defendant to tbe order of S. S. Hepworth & Co., .which note was discounted by the plaintiff.

It appeared from tbe evidence that tbe defendant was an employee of Hepworth & Co., and knew tbe vice-president of the plaintiff, Mr. Robinson. At the time tbe note in question was made tbe defendant had a conversation about tbe need of Hepworth & Co. for money, and that Robinson thereupon suggested this note. The witness says: I told him that I understood from Mr. Hepworth that I would incur no liability in signing this note ; be told me to have such a note made up and that be would see that it was discounted. He told me after it was signed and made up to take it up to tbe Garfield Bank and he would see in tbe meantime — be would leave instructions at tbe bank to have it discounted.” Tbe defendant further testified that he saw the cashier and told him that he had a note signed by himself and indorsed by Hepworth & Co., and that Mr. Robinson had asked me to take the note up there and present it to him and he would leave instructions in the meantime to have it discounted; ” that he had told Robinson that he had been informed by Hepworth & Co. that he would incur no liability at all. The cashier replied that he so understood it, whereupon the defendant handed him the note. The defendant received none of its proceeds nor any consideration whatever for its signature. The cashier testified that the conversation was that the defendant signed the note simply to make it in bankable form, and that he assumed! no responsibility and had no responsibility attached to him’. “ I accepted the note, under these circumstances, as cashier of the Garfield Bank.”

Proof having been given of the discount of the note by the plaintiff, and that it was then held by it, the court directed a verdict for the plaintiff. In this we think there was error. Undoubtedly it would be no defense to show that the plaintiff knew at the time of the discount of the note that it was accommodation paper. The: mere fact that it was accommodation paper would in no way affect the right to recover, because the giving of the note as an accommodation, if no recovery could be had upon it by the holder of the note, would not be any accommodation to anybody, because nobody could use it. In the case at bar, however, the proofs show a different state of affairs; not only that it was accommodation paper,, but also that there was a distinct understanding between the maker of the note and the payee that the maker should incur no liability by the signing of the note.

The cases of Benton v. Martin, (52 N. Y., 573) and Seymour v. Cowing (1 Keyes, 532) establish the proposition that a person has, the right, in the case of an unsealed instrument, to impose conditions, the observance of which is essential to its validity. This rule is the-foundation upon which those cases rest, which hold that where there has been a diversion of the note, unless the holder is a bona fide holder without notice, he cannot recover. In the case at bar' it appears that the plaintiff knew that it was the understanding of the defendant that he should not, under any circumstances, be liable-upon the note. Knowing that this was the agreement between the. parties, it is difficult to see how, with such knowledge, it could acquire the right to enforce that which it knew had been agreed should not be enforced. The plaintiff did not, therefore, occupy the position of a bona fide holder without notice.

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

Brady and Daniels, JJ., concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.


author: Daniels, J.:

text:
    ELLEN PAUL, Individually and as Executrix of the Last Will and Testament of THEODORE R. PAUL, Deceased, Respondent, v. AUGUSTUS P. STEVENS, Appellant, Impleaded with JULIA A. VAN DA LINDA.

      Extension of time of payment of anothefs debt, a good consideration for an engagement to pay it.

    In an action upon a promissory note it appeared that it was given by a firm composed of Augustus P. Stevens and Julia A. Van Da Linda, whose husband, James A. Van Da Linda, had been previously in partnership with Stevens. James A. Van Da Linda, while in the partnership, had contracted an indebtedness to the plaintiff, who had advanced him $2,000, which he had put into the firm as his contribution towards its capital, and for which he had given plaintiff his individual note.
    Subsequently James A. Van Da Linda had retired from the firm and had assigned his interest therein to Julia A. Van Da Linda, his wife, who continued the business with Stevens. After the retirement of James the plaintiff had an interview with Stevens concerning the interest payable to her (the plaintiff) upon the indebtedness, in which he stated that the interest would be paid the same • as it previously had been. Then she inquired what would happen to her if he should die, and thereupon Stevens sat down and drew the note in the firm name of A. P. Stevens & Co., to recover upon which this action was brought, including the $2,000 of principal and $500 of interest due upon the note, which had been given by James A. Van Da Linda, which latter note was then destroyed by the plaintiff. Thereafter the interest was paid upon this note given by Stevens and the principal sum remained in the business.

      Held, that as it was apparent that the understanding was that the money should be permitted to remain in the business of the firm, and that no immediate-measures should be taken to enforce its collection, that such extension of time of payment afforded a sufficient consideration for the note so given by Stevens as against him.

      Appeal by tbe defendant, Augustus P. Stevens, from a judgment, ■entered in the office of the clerk of the county of New York on the 22d day of March, 1889, in favor of the plaintiff; and also from .an order, entered in the said office on the 9th day of April, 1889, denying a motion for a new trial made on the minutes of the court at which the action was tried.
    The action was tried before the court and a jury at the New York Circuit, at which a verdict was directed by the court in favor of the plaintiff and against the defendant, Augustus P. Stevens for $2,770.84.

      A. Sims, Jr., for the appellant.

      Coleridge A. Hart, for the respondent.
   Daniels, J.:

The verdict was directed for the amount unpaid upon a promissory note made on the 12th of October, 1885, payable to the plaintiff or order in the sum of $2,500. It was subscribed by the firm name of A. P. Stevens & Co., and it was alleged in the complaint that these defendants were associated together as partners in business under that firm name, and made and delivered the note in question to the plaintiff. These allegations were not denied by the defendant Augustus P. Stevens’ answer, but he set up an affirmative defense to exonerate himself from liability upon the note, and he was received as the witness upon the trial by whose evidence alone these ■defenses were endeavored to be maintained.

It appeared by his evidence that he, together with James A. Yan Da Linda, were previously in partnership under the firm name of A. P. Stevens & Co., and that the plaintiff loaned to Yan Da Linda the sum of $2,000, which he put into this firm as his capital, and gave the plaintiff his individual note for the payment of the indebtedness. Before the note in suit was given James A. Yan Da Linda retired from the firm and assigned his interest in it to the ■defendant Julia Yan Da Linda, his wife, and under this assignment, with the assent of the witness, she became associated with him in the business, and had so continued since the year 1884. After the retirement of James A. Yan Da Linda, who had given the preceding note to the plaintiff, she had an interview with the defendant Augustus P. Stevens concerning the interest payable to her upon the indebtedness, in which he stated that the interest would be paid the same as it previously had been. Then she inquired what would happen to her if he should die, and he testified he stated there was something in that, and he sat down and drew the note in controversy for this sum of $2,500, which included $500 of interest then unpaid on the note held by her, and delivered the note to the plaintiff, and that she then destroyed the other note. After that interest was paid upon this note by checks drawn by this defendant from time to time and the principal remained in the business.

It was substantially on this state of the proof that the verdict was directed in favor of the plaintiff against the defendant, Augustus P. Stevens, and it disclosed sufficient to indicate the truth to be that he regarded the preceding loan as a debt of the firm, and had paid interest upon it according to that understanding, and that the note in suit had been given in place of the preceding note for the reason that James Van Da Linda had withdrawn from the firm, and that this defendant intended to’ carry the indebtedness along as that of this firm. The note was payable on demand after date, but, from the interview which this defendant states took place between himself and the plaintiff, it was clearly the understanding that the-money should be permitted to remain in the business of the firm, and that no immediate measures should be taken to enforce its collection. That is evident from the fact of the assurance given that the interest should be paid upon the debt the same as it had been while Mr. Van Da Linda was a member of the firm, and the inference was plainly supported that an extension of time was given for the payment of this money, and that formed a consideration between this defendant and the plaintiff, under the circumstances, which appeared to have taken place, supporting the making and delivery of this note. For it has been repeatedly held that forbearance or an extension of the time for the payment of a debt is a good consideration for the making and delivery of an obligation of this description. (Mutual Life Ins. Co. v. Smith, 23 Hun, 535; Grocers' Bank v. Penfield, 7 id., 279; affirmed, 69 N. Y., 502.) A point similar upon its facts to that controlling the disposition of this case arose in Spalding v. Cargill (53 N. Y. Supr. Ct. Rep., 453), where-it was held that a substitution of a note for a previous obligation was sufficient to maintain it as a legal obligation. The benefit to the firm by leaving the money in its business for an indefinite period of forbearance created such a consideration.

From the evidence which was given it was also to be inferred, although the money had been loaned to Yan Da Linda himself, that it had been considered by this defendant as a firm indebtedness, and the interest had been paid upon it by him with that understanding, and the change in the form of the obligation from the preceding note in this manner given was no more than continuing the same liability and imposing the observance of the same obligations which had been previously accepted and fulfilled by this defendant. There was sufficient, therefore, in the case, as against this defendant, to maintain his liability for the indebtedness. No question of fact was presented by the evidence, and a verdict for the plaintiff was legally directed.

In these essential respects the case differs from that of the other defendant, Mrs. Yan Da Linda, and the judgment and order should be affirmed.

Brady, J., concurred.

Judgment and order affirmed.


text:
    AUGUSTA G. GENET, Appellant, v. THE PRESIDENT, etc., OF THE DELAWARE AND HUDSON CANAL COMPANY, Respondent.

      Additional allowance — not proper where the court has not jurisdiction of the action.

    Where, upon tlie hearing of the issue presented by a demurrer to the plaintiff’s complaint, the court decides that it has no jurisdiction over the cause of action set forth in the complaint, an .additional allowance cannot be granted upon the ground that the case is difficult and extraordinary.
    Before an additional allowance can be made under the authority of section 3253 of the Code of Civil Procedure it must be ascertained that the ca§e itself is difficult and extraordinary.
    Appeal by the plaintiff from a judgment entered in the office of the clerk of the county of New York on the 20th of March, 1890, giving to defendant an extra allowance of $500, in addition to costs.

      George O. Genet, for the appellant.

      Matthews c& Smith, for the respondent.
   Daniels, J.:

This action was determined by the decision of a demurrer to the plaintiff’s complaint, in which it was held that this court had no jurisdiction over the cause of action set forth. And the allowance was directed for the reason that the case was difficult and extraordinary. But the court has not considered or decided the case. It has not been either heard or investigated by the court, and it cannot, therefore, be held to be either difficult or extraordinary. Before an additional allowance can be made under the authority of section 3253 of the Code of Civil Procedure, it must be ascertained that the case itself is of that description. It must be determined in some form to be difficult and extraordinary. But in a case over which the court has no jurisdiction that subject cannot regularly be inquired into at all, and no decision can be made upon it. The sole province of the court is to determine the single point of jurisdiction, and when that has been done adversely to the action, the merits are beyond its reach and outside of its consideration.

The right to recover the costs of the defense made by the demurrer depends upon section 3229 of the Code, which in general language provides for the recovery of costs of course, by the defendant, when the plaintiff shall not be entitled to costs. They result in an action at law, as this action was, directly from the final judgment recovered by the defendant. In this respect they are plainly distinguishable from the additional allowance, which can only be made by further action taken by the court, resulting in the conclusion that the case itself is difficult and extraordinary. And as that could not be reached for want of jurisdiction over the controversy itself, the order should be reversed and the motion denied.

Van Brunt, P. J., and Brady, J., concurred.

Order reversed and motion denied.


text:
    THE COMMERCIAL TELEGRAM COMPANY, Plaintiff, v. JAMES D. SMITH, as President of the NEW YORK STOCK EXCHANGE, THE GOLD AND STOCK TELEGRAPH COMPANY and the WESTERN UNION TELEGRAPH COMPANY, Defendants. In the Matter of the Application of JAMES E. CHANDLER Appellant, to Vacate the Satisfaction Piece in the Above-entitled Action and for Leave to Issue an Execution Therein, v. THE GOLD AND STOCK TELEGRAPH COMPANY AND THE WESTERN UNION TELEGRAPH COMPANY.

      Attorney and client — lien of the former upon the judgment recovered.— right to enforce it after payment of the judgment to the client.

    Where an attorney claims alien for his services upon a judgment recovered in an action by the plaintiff, his client, and gives notice to the attorneys for the defendants in the action that he has and claims such lien, and at their instance delays the issuing of an execution to collect the judgment, and thereafter the judgment is settled by the payment to the plaintiff of the amount thereof, the attorney for the plaintiff is entitled, where it appears that the plaintiff in the action is insolvent, and, therefore, unable to pay his attorney for the services performed by him in the action, to an order vacating a discharge of the judgment and authorizing the attorney to issue an execution upon it for the recovery of the amount due him.
    Appeal by James E. Chandler from an order entered, in the office of the clerk of the county of New York on the 10th day of March, 1890, denying a motion to vacate the satisfaction and discharge of a judgment entered in the above-entitled action on the 14th day of May, 1889, and for permission to issue an execution against the property of the defendants, the Gold and Stock Telegraph Company and the Western Union Telegraph Company, and to collect said judgment.

      Wiliam M. Safforcl and Robert P. Harlow, for Chandler, appellant.

      William W. Qooh and Dillon <& Swayne, for the telegraph companies, respondents.
   Daniels, J.:

■The appellant was the attorney for the plaintiff in the action in which the judgment was recovered. The recovery was for the sum of $2,295.42, and included no more than the costs, together with an allowance amounting to the sum of $1,000. The appellant claimed to be entitled to a lien upon this judgment for his services in the litigation, and in December, 1889, he gave notice in writing to the attorneys for the defendants in the action, that he had a lien upon the amount of the judgment, for the services rendered by him as attorney and counselor at law for the plaintiff in the litigation, which had resulted in the recovery of the judgment; and in January, 1890, he served a further notice upon the attorneys for one of the defendants that he should issue an execution to collect the judgment unless the same was paid to him. At their instance he delayed doing so for the time being, and on or about the 4th of February, 1890, the judgment was settled by the payment of the amount of it to the plaintiff itself. The attorney thereupon applied to the court for an order vacating the discharge of the judgment and allowing him to issue an execution upon it for the recovery of the amount. But this application was denied, and apparently under .the authority of the decision in Howitt v. Merrill (113 N. Y., 630).

But that decision in no way denies the right of the attorney to enforce the lien existing in his favor in this manner; and where the judgment may have been satisfied after the notice of the lien claimed by him, the power of the court to vacate the satisfaction and permit the execution to be issued upon it for the benefit of the attorney is conceded by this decision. But in that case it was considered that redress might be obtained by the attorney by proceeding against the plaintiff in the action, while here that would be impracticable, for the reason that it had been made to appear that the plaintiff in this action is insolvent to a large amount, and on that account incapable of responding to the appellant for the services performed by him in the action. And where services of this description have been performed and the recovery of a judgment has been secured by the attorney it has been, repeatedly held by the courts that the lien asserted in this instance exists in his favor and may be enforced by him» for the satisfaction of his demands. (Marshall v. Meech, 51 N. Y., 140; Goodrich v. McDonald, 112 id., 157; Randall v. Van Wagenen, 115 id., 527; Wright v. Wright, 70 id., 98.) And the attorney is entitled to proceed in this summary manner to enforce the lien and obtain satisfaction. (Matter of Wolf, 51 Hun, 407.) And the circumstance that a dispute may exist concerning the amount of his compensation or his right to remuneration will not defeat the proceeding. For the court is empowered through the intervention of a reference to determine the validity of his claim as well as of the objections which may be made against it by either of the parties to the judgment or others.

It has been asserted, on behalf of the parties to the judgment, that the appellant has been paid the sum of $13,832.40 for his services in this and other litigations in behalf of the plaintiff in the judgment. And a payment nearly to this extent has been conceded by him, but, at the same time, it has been stated, with apparent probability as to its correctness, that he had disbursed nearly the sum of $6,000 in the litigation by way of expenses, and that the plaintiff in the action still remains indebted to him in a large sum of money, •excluding the costs and allowances recovered by this judgment. Who may be correct concerning this disputed state of the accounts it is not necessary to attempt to determine; neither could that be ••satisfactorily done upon the affidavits as they were presented on the hearing of the motion. If the appellant is right in his statements, then he is entitled to enforce his lien upon the amount included in •the judgment by' issuing an execution for its collection, while if he is not right in that statement, then, by an inquiry which may be regularly made in the proceedings, it will be established as a matter of fact that he had been paid for his services and has no legal right to enforce the collection of this judgment. That is a matter which can only be litigated satisfactorily by taking the testimony of the witnesses whose evidence may be important on this subject, and then ascertaining the facts established by their evidence.

It has been made to appear by the affidavits that the attorney, in December, 1889, commenced a suit in the Superior Court of the city of New York to recover the sum of $18,915.39, stated to be owing to him for his services in the plaintiff’s litigation as its attorney, and that an attachment had been issued in that suit and a bond given discharging the attachment, which secured the payment to the attorney of any sum which he might be able to recover in that litigation. And if that suit had included the claim now made by the plaintiff, that would have furnished a very satisfactory reason for dismissing this application; for the attorney could then very well be held to have elected to proséeute his remedy by action instead of by means of this summary proceeding. But the statement made by him is that the claims presented for determination in that suit are exclusive of that forming the basis of this proceeding; that this was reserved by him and not made a part of the demands for the recovery of which that suit was commenced and is now being prosecuted. This statement, as the affidavits have been presented, appears worthy of credence, and the action in the Superior Court, therefore, cannot be permitted to defeat the application made in this action.

It has also been stated that it was supposed that all the claims made by the attorney for services rendered to the plaintiff had been paid and satisfied in the manner already stated, but no arrangement or agreement whatever is authenticated or disclosed by the affidavits which would warrant the conclusion that the money received by the attorney was so received in satisfaction of his demands against the plaintiff. Neither does it appear satisfactorily that there was any understanding to which the plaintiff had become a party, that all litigation should be indefinitely suspended, or that the attorney should abandon his right to satisfaction for services in this action by enforcing his lien upon the judgment which had been recovered.

It is stated in the points, on behalf of the respondents, that the defendant James Smith, as president of the 'New York Stock Exchange, had appealed from the judgment and given security on •that appeal staying the issuing of an execution. But if that is the fact, it will not prevent the attorney, in case his right to enforce his lien in this manner shall be established, from issuing an execution against the defendants who have taken no appeal, and recovering the amount to which he may be entitled for his services in this action against those defendants.

The stay of proceedings affected by the appeal and undertaking of the other defendant will operate in its favor alone, and not in favor of the defendants who have been proceeded against.

The order should be reversed, with ten dollars costs and disbursements, to abide the event of the proceedings, and an order should be entered directing a reference, -for the hearing of the matters alleged, to a referee, to 2’eport to the court the evidence taken by him,, with a' statement of his opinion as to the facts proven by it.

Yan Brunt, P. J., and Brady, J., concurred.

Order reversed, with ten dollars costs and disbursements, to abide the event of the proceedings, and a reference ordered.