text:
    ISAAC SIMON, Plaintiff and Appellant, v. ALEXANDER S. KALISKE, Defendant and Respondent.
    To render constructive notice to bona fide purchasers of real property, the general registration acts require that all conveyances of interests in land, in the city and county of New York, shall "be recorded in the office of the Register of Deeds. A purchaser, finding, upon examination in such office, no record of a prior grant, is protected, unless actual notice is conveyed to him in some other way. In the absence of such notice, he is not'bound to search the records in the County Clerk’s office .for such conveyance; although, if he had been informed that a conveyance of the land was embraced in an assignment made for the benefit of creditors, it probably would have been his duty to examine the records in the County Clerk’s office, to see if that assignment contained a conveyance of the lands.
    Before Barbour, C.J., Jones and Fithian, JJ.

      [Decided June 11, 1869.]
    The case was tried at Special Term before Mr. Justice Garvin.
    This was an action, brought by the vendor, in a contract which was made in 1867, for the sale and purchase of a lot of land in this city, against the vendor therein, to obtain a specific performance, or the return of a portion of the - purchase-money paid therefor.
    By the contract in question the defendant undertook to execute to the plaintiff “ a proper deed for the conveying and assuring to him the fee simple of the premises, free from all incumbrances,” except certain mortgages therein mentioned; and the plaintiff agreed to pay therefor $6,500 in money, and to assume the payment of those mortgages, and the sum of $3,500 was, then and subsequently, paid by him upon the contract. But, before the delivery of the deed, the plaintiff discovered, upon an examination of the title, that, in 1860, David Vreeland, the then owner of the premises, mortgaged the same to J. C. Lord tor $5,500; that, in 1861, Vreeland conveyed and assigned the land, with other property, to Henry J. Irving, for the benefit of the assignor’s creditors, which deed of assignment and conveyance was filed in the County Clerk’s office as an assignment; that, in 1862, a foreclosure suit was brought upon the Lord mortgages^ resulting in a judgment, under which the premises were sold by the Sheriff to John Douglass, who subsequently conveyed them to one Fitzpatrick, by whom they were granted to the defendant • but that Irving, the assignee of Vreeland, was not made a party to such foreclosure suit.
    On ascertaining these facts, as well as the further fact that some of the creditors mentioned in the assignment were still unpaid, the plaintiff objected to the title, upon the ground that the estate and interest of Irving in the premises were unaffected by the decree of foreclosure, and requested the defendant to procure a release of that interest, and, subsequently, also requested him to return the $3,500. The defendant refused to comply with either of those requests, but made and tendered to the plaintiff a deed of the premises; which deed the plaintiff rejected.
    Ho evidence was given upon the trial tending to prove that Vreeland’s deed of assignment to Irving had ever been recorded in the office of the Register of Deeds, nor that the defendant, or either of the persons under whom he derived title, subsequently to the Sheriff’s sale had any actual notice or knowledge of the existence of such assignment; and, for that reason, the learned J ustice, before whom the trial was had, directed a judgment dismissing the complaint, with costs.
    The plaintiff appealed.

      Mr. John A. Weeks for appellant.
    The laws of this State have provided several record offices for the different descriptions of conveyances and incumbrances affecting the titles to real estate; in this city, the Register office for deeds and mortgages, Loan Commissioners’ office for their mortgages, County Clerk’s office for judgments, mechanics’ and unsafe building liens, lis pendens, sheriff’s and marshal’s • certificates, insolvent assignments, foreclosures by advertisement, and appointment of receivers. The Court at Special Term con-eluded that Henry J. Irving, though not a party, was fully barred by the decree in the foreclosure. The notice of lis pendens was filed 25th of June, 1862. By section 132 of the Code, “ every person whose" conveyance or incumbrance is sub' sequently executed, or subsequently recorded, shall be bound by all proceedings taken after the filing of such notice.” But this general assignment was executed and recorded nearly eighteen months prior. Section 132 of the Code does not limit the place of record to the Begister’s office. This assignment was not recorded there. The Begister’s office is the place for the record of deeds and mortgages; other conveyances and incumbrances affecting real estate are to be recorded elsewhere.
    By section 33 (sec. 28) of article 3, section 9 of article 5, title i., chapter 5, of the second part of the Revised Statutes, the effect of the insolvent assignments there provided for by law is declared to be to vest in the assignees all the interest of the insolvent at the time of executing the same, in any estate or property, real or personal, whether such interest be legal or equitable (2 R. S., 21 and 30). Every assignment executed under the third;, fourth, fifth, and sixth articles of that title shall be recorded by the Clerk of the county in which it was executed, upon being acknowledged or proved, in the same manner as deeds of real estate (sec. 20 of art. 7 of same title; 2 R. S., 38, p. 112 of 3d vol. of 5th edition).
    So that, before the law of 1860, the statutory insolvent assignments were recorded in New York in the County Clerk’s office.
    In like manner, and in conformity with this practice, the place of record for general assignments under act of "1860 was fixed by the sixth section of that act as the County Clerk’s office (sec. 6, ch. 348, Act of April 13, 1860, p. 596, Laws of 1860).
    That is the only place by law designated for the record of such assignments. By such record of this assignment in that office, on January Y, 1861, Henry J. Irving, within the meaning of section 132, was a person whose conveyance or incumbrance was executed and recorded prior to the filing of the-Us pendens in Lord v. Vreeland, and was therefore wholly unaffected by the judgment in the foreclosure. The assignee, Henry J. Irving, inasmuch as he was entitled, under the general assignment which was recorded January 7,1861, eighteen months prior to the filing of the notice of lis pendens, is within the protection of the principles of Price v. Phillips, in this court, and unaffected by the foreclosure proceedings (3 Robertson, 448; Walsh v. Rutgers Fire Ins. Co., 13 Abb. P. R., 33; Slee v. Manhattan Co., 1 Paige, 48; Vanderkemp v. Shelton, 11 Paige, 28; The Eagle Fire Co. v. Lent, 6 Paige, 635).
    The Court erred in its decision at Special Term, in that it merely dismissed the complaint, and did not finally decide all the rights of the parties on the questions presented by complaint and proof. The whole case was before the Court, and the plaintiff was entitled to have a decision of all the matters in controversy (Bidwell & Banta v. Astor Mut. Ins. Co., 16 N. Y., 263).
    By the tender of the deed, which is alleged in the pleadings and found by the decision, under the established rule in this State the plaintiff became the debtor of the defendant for the balance of the purchase-money, and was entitled to the convey anee of the property on payment thereof, and of such damages, by way of interest or otherwise, as the defendant may be entitled to for the plaintiff’s delay (Richards v. Edick, 17 Barb., 260, and cases cited, 265).

      Mr. Joshua M. Van Cott for respondent.
    The general registration acts require all conveyances of interests in land, in the city and county of New York, to be recorded in the office of the Register of Deeds, to charge bona fide purchasers with constructive notice thereof (1 Rev. St., 755, sec. 1).
    Voluntary assignments for the benefit of creditors are not excepted from the operation of the general act by the assignment act of 1860 (Laws 1860, ch. 348, p. 594, sec. 6).
    “Every conveyance or assignment made by any debtor or debtors under the provisions of this act, shall be recorded in tJu

      Cleric's office of the county in which such debtor or. debtors resided at the datet thereof; and every, inventory of the property of such debtor or debtors, made under the provisions of this act, shall b & filed in the same office where such judgment is recorded.” The act of 1860 has no feature common to general registration acts. Those acts require the conveyance which describes the property to be recorded / that act merely requires a general inventory of the property, real and personal, to be filed. Those acts require the conveyance to be recorded before it becomes effective, as notice to bona fide purchasers; this act permits the designation of the property to be filed, for all the effective purposes of the act, twenty days after the making of the assignment;.. Those acts require the conveyance to be recorded in the registration district where the property is situated; this act requires the filing of the inventory, not where the property is located, but in any county, however remote, where the assignor may happen to reside. There was no actual notice of the assignment. To make a notice effective, it must reach all the parties through whom the the title is derived. A grantor without notice can convey a good title to a grantee with notice; and a grantor having notice can convey a good title to a grantee without notice (3 Kernan, 509, Wood v. Chapin; 1 Story’s Eq., sec. 409; 8 J. R., 401, Jackson v. Given; 3 J. Ch. R., .147, Demarest v. Wyntroop; 5 Barb. R., 194, Fort v. Burch; 2 Hill, 654, Hooker v. Pierce; 15 Wend. 595, Jackson v. Post; 6 Paige, 329, Varick v. Briggs; 7 Cowen, 360, Jackson v. McChesney).
    Any record made or notice given after Us pendens filed would have been ineffective (Code [as amended in'1858], sec. 132; 35 N. Y. R., 104, Stern v. O’Connell; 1 Story’s Eq., secs. 405, 406 ; 24 N. Y. R., 613, Cleveland v. Boerum).
   By the Court:

Barbour, C.J.

The ultimate question to be determined by the Court on this appeal, is, whether the deed which was made. and tendered by the defendant to the plaintiff, would, if accepted by the latter, have vested in him an estate of inheritance in tire premises in fee simple, free of incumbrance. For, if it would, such tender and refusal exonerated the defendant from all obligation either to convey the land or to return that portion of the purchase-money which he had received upon the contract, and the judgment dismissing ‘the complaint upon the merits was consequently just and proper.

The assignment to Irving was not a mere incumbrance upon the title, but was a full and complete deed of conveyance of the premises to Irving, in fee, for the purposes of the trust. A purchaser deriving his title from Vreeland, subsequently to his grant to Irving, must be presumed to have purchased in good faith and in ignorance of that deed, unless it appears that he had notice thereof, at the time of the conveyance to himself. The notice required may be either actual or constructive; the latter being the mere creature of the statute, as provided for in a single section (1 R. S., 756, sec. 1), and the other, embracing, at least, such knowledge or information, in the actual possession of the purchaser at the time of the conveyance to himself in regard to the prior grant, as would put a careful, prudent man upon further inquiry.

The fact that the deed of assignment was recorded in the County Clerk’s office was wholly unimportant. The statute provides for but one kind of constructive notice, viz., the recording of the deed in the Begister’s office; and, therefore, the purchaser, finding there, upon examination, no record of a prior grant, would have a right to suppose none existed, unless he had been informed, in some way, that such grant had been made. In the absence of such information, he was no more bound, for his own safety, to search the records in the County Clerk’s office for a deed of conveyance than he was to examine the records of this court for that purpose; although, if he had been informed that a conveyance of the land was embraced in an assignment made by Yreeland to Irving for the benefit of creditors, it probably would have been his duty to examine the records in the Clerk’s office to see if that assignment contained a conveyance of the lands.

It was incumbent upon the plaintiff to prove, upon the trial, that the assignment to Irving was recorded, as a deed, in the Register’s office, prior to the recording there of the Sheriff’s deed, or to show by competent evidence that the grantee in that deed, and, also, his grantee and the defendant, were informed prior to the recording of their deeds, respectively, that the land had previously .been conveyed by Vreeland. For if either of those persons took and recorded the conveyance to himself in good faith, and in ignorance of the prior grant, his title was not only good, but he could confer a like perfect title upon one who had a full knowledge of suéh prior conveyance. “If this were otherwise,” as Chancellor Walworth says in Varick v. Briggs (6 Paige, 323), “ a bona fide purchaser might be deprived of the power of selling his property for its full value.” As neither of those facts was proven, the complaint was properly dismissed.

The judgment must be affirmed, with costs.


source: Caselaw Access Project

author: Fithian, J.

license: Public Domain

text:
    WILLIAM G. PECK and Another, Plaintiffs, v. CHARLES KNOX, Defendant
    The taking possession by a landlord of demised premises, in which there remains fixtures belonging to a tenant, after such tenant has been removed from the premises by “summary proceedings,” is not, of itself, a conversion by the landlord of the tenant’s property so left on the premises.
    Nor is a landlord liable, in an action of trover, for refusing to deliver such property, on demand of the owner, made after the landlord had leased the premises and delivered the possession to another tenant. The demand should be made of the lessee in possession*
    Before Barbour, C.J., Jones and Fithian, JJ.

      [Decided June 11, 1869.]
    This was an action to recover the possession or judgment for the value of certain property alleged to belong to plaintiffs, and consisting of store and gas fixtures, mirrors, shelves, awning, glass cases, &c., situated in store No. 126 Fulton street, in New York, valued at $100, and which property, it was alleged, defendant took and wrongfully detained from the plaintiffs.
    The case was tried before Mr. Justice Barbour and a jury, and the following facts were proved,' among others: That the defendant Knox was the owner or landlord of the store No. 126 Fulton street; that in 1866 he leased the premises to one Falkner for a term which would end on the 1st day of May, 1869 ; that Falkner thereupon put a stock of goods in the store, and commenced some kind of mercantile business therein, of what precise character did not appear. Afterward, Falkner sold the property and business and interest in the lease to one Van Buren. Subsequently to that (but when did not appear), the plaintiff Peck bought Van Buren’s goods and business, including the property in question, which was then in the store, and thereupon took the other plaintiff in as a partner, and continued the business or some business. Whether these plaintiffs became assignees of the lease to Falkner did not appear; but they were in possession under it, either as assignees or sub-lessees.
    It further appeared that on and before the 17th of February, 1869, there was rent in arrear and unpaid, due to Knox on the lease to Falkner, of about the sum of $687; and that defendant Knox had commenced “ summary proceedings ” under the statute to eject the tenants (plaintiffs), for non-payment of the rent. On the 17th of February, the rent not having been paid, and judgment and process of dispossession having been rendered and issued in the proceedings above stated, an officer of the court, by virtue of such process, removed the plaintiffs from the premises, and all their goods and property, except the property in question in this action, which being fixed or fastened to the freehold, the officer could not or did not remove it. The plaintiffs gave evidence tending to show that they desired and attempted to remove these fixtures themselves, but were prevented from so doing by the officer. It did not, however, appear that the defendant Knox had any thing to do with this prevention by the officer. The officer, having thus removed the plaintiffs and their goods, late in the afternoon of the 17th of February delivered the keys and possession of the store to defendant’s clerk. It further appeared, that thereupon, on the same day, the keys of the store were_delivered to one William S. Burke, and that on the morning of the 18th of February Knox executed and delivered to Burke a lease of the premises for a year and more for a certain rent. And that in consideration of obtaining the lease, Burke then and there paid to Knox $687.50, being the amount of back rent owing by the outgoing tenants. And Knox thereupon transferred to Burke his claim against such outgoing tenants for such - back rent, together with whatever interest Knox might have (if any) in^the fixtures remaining in the store—Burke immediately entering into possession of the store. Subsequently, on the same day, plaintiffs demanded of Knox the keys, and permission to' enter the premises and remove the property in controversy, which he refused. Plaintiffs then demanded the delivery of the property of Knox, with like refusal on his part, he alleging, as plaintiffs say, that he would have nothing to do with them; and, as he swears, because he had not the possession and could not deliver the property. The plaintiffs also gave evidence tending to show that, pending the summary proceedings to remove plaintiffs, the defendant Knox entered into a verbal agreement with the plaintiff Peck to the effect that, after Knox had obtained possession by virtue of the proceedings, he would execute a new lease to Peck, which he afterward refused to do. This was denied, however, by the defendant Knox. The Court dismissed the complaint, on the ground that there was no proof of wrongful taking or detention of the property. Plaintiffs excepted to the decision, and the exceptions were ordered to be heard in the first instance at the General Term.

      Mr. E. Luther Hamilton for plaintiffs.
    The plaintiffs were in possession of the premises under an agreement with the defendant that he would give a lease, and it was fraud on the part of the defendant to enforce the warrant; but the title of the plaintiffs to the property was not changed by the dispossession (Laurence v. Kemp, 1 Duer, 366; Beardsley v. Sherman, 1 Daly, 326).
    Knox directed the marshal not to allow the plaintiffs to remove the fixtures, and this amounts to a conversion of them by Knox (Moore v. Wood, 12 Abb., 395).'
    Where the defendant has once been in possession of the plaintiffs’ property, but has parted with it, claiming ownership, a refusal to deliver it up on demand of the plaintiffs will render him liable for the same in replevin (Latimer v. Wheeler, 38 N. Y., 468 ; Nichols v. Michaels, 23 N. Y., 264).
    The rule is that any unlawful interference with the property of another or exercise of dominion over it, by which the owner is damnified, is sufficient to maintain the action (Latimer v. Wheeler, 38 N. Y., 475).

      The original taking being wrongful, no demand was' necessary (Pillsbury v. Webb, 33 Barb., 213), especially as a demand would have been fruitless (Powers v. Bassford, 19 How., 309).
    If a demand were necessary, then the question whether the demand was made or not should have been submitted to the jury? as it was clear that a demand was made.
    The complaint was dismissed evidently on the ground that the agreement of the defendant to give a lease for more than one year was void, not being in writing.
    A parol lease fór more than one year, however, is good for one year (Lounsberry v. Snyder, 31N. Y. R., 514; 5 N. Y., 463).
    The defendant either wrongfully took or wrongfully detained the property and sold it, and got the money for it from Burke, and should pay for it.

      Mr. Henry L. Clinton for defendants
    The defendant having, in due form of law, dispossessed the plaintiffs of the store, in which the fixtures in litigation were, and having leased the store to Burke, before the demand made upon him (the defendant) by the plaintiffs, there could be no conversion of the said fixtures by him.
    There can be no conversion where the defendant is not in possession when the demand is made.
    “A mere neglect,on the part of the defendant to deliver upon demand, unless the goods are then in his possession, does not work a conversion of property.” * * * “The ability of the defendant to comply with the demand when made, is an essential part of the proof, on the part of the plaintiffs, to sustain the action for a wrongful conversion” (the Court, per Johnson, J., in Whitney v. Slauson, 30 Barb., 276, page 278).
    In Bowman v. Eaton, 24 Barb., 528, Judge Strong, .at page 532, says: “A refusal to comply with the demand is only evidence of the conversion, where the ability at the time to comply with it is proved.” ' ,
    It is only when a party has the possession or control of property, that. a refusal to deliver on demand constitutes evidence of a conversion (Fillmore v. Horton, 31 How. Pr., 424; General Term of Supreme Court, Eighth District; Hall v. Robinson, 2 Com., 293).
    The plaintiffs, after Falkner and those who claimed under him had been dispossessed, having failed to remove their fixtures, they became a portion of the realty, and the title in them became vested in the owner of the inheritance.
    The fixtures in suit were fastened to the freehold.

      “ Fixtures go along with the premises to a lessee, if no reservation be made at the time of the contract; and the tenant must remove the fixtures put up by him before he quits the possession on the expiration of his lease. If not removed during the time, they become the property of the landlord” (2 Kent’s Commentaries, p. 346; 1 Washburn on Real Property).
   By the Court:

Fithian, J.

The question in this case is whether there is any evidence tending to establish a wrongful taking or detention of plaintiffs’ property. The only possession of the property defendant is shown to have had is the constructive possession of the premises in which the "property was on the night and morning of February 17 and 18. This possession was certainly not wrongful. It was delivered to him by the judgment and process of a court of competent jurisdiction. The premises belonged to the defendant. He came rightfully and legally into the possession of them on the night of the 17th of February. The plaintiffs’ property (if any they had) was fixed to defendant’s freehold. And if it was necessary, in receiving lawful and rightful possession of his own property, to receive, also, possession of plaintiffs’ property, such talcing cannot be said to be wrongful.

Heither was the leasing of defendant’s premises, and the delivering possession thereof, including plaintiffs’ fixtures, to Burke, on the 18th of February, such a disposition of the property as in law amounts to a wrongful conversion of the same, or an interference therewith, to the owner’s exclusion. It was not the defendant’s fault that plaintiffs had omitted to remove their fixtures until after the lease under which they were holding was terminated by judgment of dispossession for non-payment of rent. The defendant had a perfect right to lease his premises, or make any other disposition of them he chose. He is not to be barred of that right, or charged with a wrongful conversion, because, in the exercise of it, by delivering possession of his own property to another, it became necessary to deliver, also, possession of a third person’s property, stored on the premises. By so doing, he transfers possession of his own property merely/ in respect to which, plaintiffs have no rights whatever. And the person receiving possession takes it subject to every legal right or claim which plaintiffs had to any property belonging to them remaining upon the premises.

Nor can the defendant be charged with a conversion, or a wrongful detention of the property, by reason of his refusal to deliver, when demanded, on the 18th of February. And this because he had before that rightfully parted with all possession, control, and right of entry of and to the premises wherein the property demanded was situated. He would himself have been a trespasser if he had attempted, without the consent of his tenant, to comply with the demand. It is settled that a demand ■ and refusal is only prima facie evidence of a conversion or wrongful detention. And that, notwithstanding the refusal to deliver, the party refusing may, if he can, show that he had not in fact converted the property to his own use, or detained it wrongfully; as in the case of one having the possession of property as a mere servant or custodian for another, neither claiming nor asserting any interest, or right ®f possession, or control in himself. This principle is so familiar that it is unnecessary to cite authorities to sustain it.

The claim of plaintiffs’ counsel that the defendant Knox had sold the property in question to Burke, and received a consideration therefor, is not sustained by the evidence. Knox did not assume absolutely to sell the property, but only such interest in the same (if any) as he had. If he had or has an interest, plaintiffs cannot object to Ms selling Ms own. If he had none, then notMng was sold, and plaintiffs’ rights are unaffected thereby. If the plaintiffs were wrongfully prevented by the officer from removing the property on the 17th of February, and have been injured thereby, their remedy is against the officer, and not the defendant here.

Exceptions were taken by plaintiffs’ counsel to various rulings of the justice during the trial. But I see no error in those rulings. Indeed, I tMnk all the evidence in respect to the alleged parol agreement to lease the property to the plaintiff Peck could have been properly excluded, as it was not claimed that such alleged agreement was ever perfected so as to become an actual lease, or give plaintiffs any rights of entry to the premises as tenants. The declarations of the officer, not in the presence of defendant, were clearly inadmissible.

The above considerations, if correct, constitute a complete barrier to plaintiffs’ right of recovery in this action. It is therefore unnecessary to consider the other question in the case, as to whether plaintiffs had not lost title to this property, by reason of its being fixed to the freehold, and not removed before the termination of the tenancy, by the judgment and removal on the summary proceedings.

Exceptions overruled, and judgment ordered for defendant on the verdict, with costs.


author: Barbour, C.J.

text:
    JAMES ROSS, Plaintiff and Respondent, v. GEORGE WHITEFIELD, Defendant and Appellant.
    The knowledge of one partner is that of the firm, so far as concerns their dealings with others as a partnership. Per Barbour, C. J.
    The fact that one partner was informed at the time that a note was transferred to the firm by another partner, that the same was given without consideration, but merely lent to the latter, is wholly immaterial.
    The plea of want of consideration to the maker of a note thus lent, with the intention that the same shall be sold or discounted for the benefit of the payee, or without restriction as to its use, cannot avail the maker, in an action brought against him by the purchaser or subsequent holder from him, although such purchaser or transferee took the same with full knowledge of the circumstances under which it was made and issued.
    Before Barbour, C. J., Jones and Fithian, JJ.

      [Decided June 11, 1869.]
    This case was tried before Mr. Justice Jones and a jury.
    In the fall of 1859, the defendant loaned his promissory note of $500 to one William H. Merrill, Jr. When the note became due, Merrill furnished the defendant with funds to enable him to pay it off, and thereupon a similar note was loaned by the latter to the former; and in like' manner several such notes were thus given and loaned, from time to time, by the defendant to Merrill, who, as the same became due, respectively, furnished to the former the funds necessary to meet them. Sometime during those transactions a partnership was entered into between Merrill and one Bullwinkle, under the firm name of Bullwinkle & Merrill; after which, and when the last note so made to Merrill became due, the money to pay the same was given by him to the defendant, and thereupon, at the request of Merrill, a new note, payable to Bullwinkle & Merrill, was made and loaned to Merrill by the defendant. That note, under an agreement between the partners, Bullwinkle & Merrill, but without the knowledge or assent of the defendant, was transferred, before due, by Merrill to the firm, of B. & M., who paid him the money therefor out of the partnership funds. Other notes of like character were given by the defendant, as in renewal, from time to time, as each became due, the funds necessary to pay off the old notes being furnished by the firm to the defendant. Finally, the firm, on giving to the defendant the funds ($500) with which to take up the last note so made, requested him to give them a new note, which he refused to do. The firm of Bullwinkle & Merrill subsequently assigned their claim against the defendant, arising out of those transactions, to the plaintiff, who brought this action as for money loaned by the firm to the defendant. The judge directed a verdict for the plaintiff, for the amount claimed, to which the defendant excepted. ^

      Mr. A. C. Morris for appellant.
    In determining the question of the liability of the defendant, we are not to consider what passed between Merrill and his partner, with which the defendant had nothing to do, but'only what passed between Merrill and the defendant.
    When Merrill had furnished money to the defendant to meet the last of the notes which he had given individually, he was free from all obligation to the defendant. His debt was paid, and he was precisely in the position he would have been if no debt had been contracted.
    The testimony is that after Merrill had fully acquitted his debt to the defendant, he asked him for a further loan, directing the note to be made to the order of the firm.
    That direction was in itself equal to saying, The note whiehl now borrow is not for me but for the firm” and the defendant must necessarily have so understood it.
    But giving to the transaction the construction the most favorable to the plaintiff, and assuming that when the defendant gave the new note to the order of the firm he intended to bind himself to the firm, for the accommodation of Merrill, individually, and that as between him and the firm he was bound to pay the note, still, as between him and Merrill, the latter was bound to pay it; and that is exactly what he did.
    The case narrows itself down to this point;
    Admit that Merrill owed the defendant $500, and that without the consent of his partner, or with his dissent fully expressed, Merrill appropriated partnership funds to the payment of this debt (the defendant being ignorant of the misappropriation), can the firm recover the money back from the defendant (see Dob v. Halsey, 16 Johns., 40 ; Mason v. Waite, 17 Mass., 563)
    If Merrill, owing the defendant $500, had himself drawn the check upon the partnership funds, there might have been something—but very little—to excite the defendant’s suspicion that he was using partnership funds to pay his individual debt; but the check was signed not by Merrill but by Bullwinkle, and the defendant has testified that he knew nothing about the understanding between Merrill and his partner, in regard to the use of the check.

      Mr. J. McKee for respondent.
    The whole difiiculty in this case arises from the fact that Merrill, being the co-partner of Bullwinkle, there is an aptness to confound his individual acts and liabilities with the acts and liabilities of the firm of Bullwinkle & Merrill.
    It is undisputed that the last note mentioned in the evidence for $500 was made and delivered by the defendant to Merrill for Merrill’s individual accommodation, and that the firm of Bullwinkle & Merrill took it in good faith, at full value, and discounted it for Merrill, he using the money individually.
    How, if the firm had retained the note made by the defendant, and for which they had paid full value instead of loaning the - money to the defendant to take it up with when due, would there be any question as to the liability of the defendant to them in a suit on the note 2
    The fact of his loaning it to Merrill for his accommodation would be no defence.

      A bona fide holder of a bill or note taken with no other knowledge than, the paper furnishes has a right to treat the parties to the same as liable to him in the same manner and order, and to the same extent, as they appear on the instrument, although as between themselves their relations may be different (Hodge v. Lansing, 35 N. Y., 136).
    The equities in the case are all with the plaintiff, the firm having surrendered the note to the defendant after paying full value for it—having advanced money to the defendant to take up his note with, which they held, and upon which the defendant was liable to them; in the event of the plaintiff not succeeding in the recovery of the $500 as a loan, he would be remediless, while the defendant has his remedy against Merrill, who received the money.'
    The check, being drawn to the order of the defendant and indorsed by him, is complete evidence that the firm of Bull winkle & Merrill advanced him that amount to take up the old note, expecting a renewal; that they had confidence in Whitefield’s responsibility, but none in Merrill’s, and that the amount was advanced by them to the defendant, and not to Merrill.
    Ho other explanation of the check being drawn in that way could be given, as Bull winkle & Merrill had the possession or control of said note, and would have certainly retained the note if the check had been intended as a payment.
    It is altogether unreasonable and even absurd to suppose that a business firm would give a check in payment of a note to the maker thereof which they had discounted for a third party, and which they held at the time, and upon which the.maker was the only one to whom they could look for payment. The only reasonable explanation of the giving the check in this manner must be upon the theory that it was a loan by the firm to the defendant to take up the old note in assurance of their receiving a new note therefor. Any other theory would make it almost self-evident that there was collusion between the defendant and Merrill with a view to defraud the firm.
   By the Court:

Barbour, C.J.

There was one fact, which, if material; ought to have been submitted to the jury. Merrill testified, as a witness, that, at the time he transferred the note to the firm, he told his partner, Bullwinkle, that the note had been loaned to him; but Bullwinkle wholly denied that, statement. It is not important, however, for two reasons: first, the knowledge of one-of the partners, like his act, is that of the firm, so. far as concerns their dealings with others, as a partnership; second, the fact that Bullwinkle was informed, at the time the note was transferred to the firm by Merrill, that the same was given, without consideration, but merely lent to the latter, was wholly immaterial. Bor, the plea of want of consideration to the maker of a note thus lent, with the intention that the same shall be sold or discounted for the benefit of the payee, or without restriction as to its use, cannot avail the maker, in an action brought against him by the. purchaser, or a subsequent holder, from him, although such purchaser or transferee took the same with full knowledge of the circumstances under which it was made and issued (Bank of Chenango v. Hyde, 4 Com. R., 567; Grant v. Ellicott, 7 Wend., 227; Powell v. Waters, id., 176; Grandin v. Le Roy, 2 Paige, 509).

The plaintiff in. this action took nothing, by the assignment to him of the claim of Bullwinkle & Merrill against the defendant, beyond the interest of his assignors; and, of course, he can recover here, if at all, only such amount as B. & M. would have been entitled to recover had this suit been instituted by them at the time the assignment was made; The question, then, is, what would be the rights of the parties in an action brought in the joint names of Bullwinkle and Merrill, as plaintiffs, against this defendant?

Conceding, for a moment, that Bullwinkle was a purchaser, of the note, in good faith, to the extent of his interest as a partner, and that he may, for that reason, be considered here as a lender, to a like extent, of the $500 which was given to the defendant by the firm for the purpose of retiring such note, and, therefore, that he would be entitled to recover jw tanto in proportion to his interest, I am not aware of any principle of equity that would authorize a recovery by Merrill, in such a case. His' relations to the defendant, certainly, were unaffected by his transfer of the notes to himself and Bullwinkle; but his implied obligation to retire the borrowed note when due, and to save the defendant harmless therefrom, remained, after such transfer, pre cisely as it existed before. How, then, can it be said that the' portion of the $500 which was furnished, with his consent, out of funds belonging to himself, even though undivided, for the purpose of paying off and cancelling the note then outstanding, was a loan by him to the defendant ? It is unreasonable to suppose that the mere transfer by Merrill of the note to himself and another, as partners, or of an undivided interest therein to his partner, could effect such a result as that.

In England, and, probably, here, under the old rules of pleading and practice, such an action as this, but brought in the names of several partners, one of them being the borrower of the note, could not have been sustained. In the case of Sparrow et al. v. Chisman (4 M. & Ry., 206), the plaintiffs, who were co-partners, brought their suit as indorsers of two bills of exchange, drawn by Peekover, one of the partners, and indorsed by him to the firm, against the defendant as acceptor. The defendant accepted for the accommodation of Peekover, who undertook to provide for the payment of the bills. The Court held that as Peekover had undertaken to provide for the bills, he and his co-partners were precluded from joining in an attempt to enforce payment from the defendant. (See, also, Rapp v. Latham, 2 B. & Ald., 795; Sandilands v. Marsh, id., 673; Richmond v. Heapy, 4 Camp., 207; Puller v. Roe, Peak’s R., 117; Iacand v. French, 12 East., 323; and remarks of Lord Tenterden in Jones v. Yates, 9 B. & Cress., 539.) Under our present system, however, which allows a judgment in favor of one of several plaintiffs and against the others, in certain cases, it is quite possible that Bullwinkle might have been entitled, in an action brought by himself and Merril against this defendant, to recover a judgment for the amount of his interest in the $500; and so, the plaintiff here, as the assignee and representative of that interest, may, perhaps, eventually show himself entitled to such a judgment. But, in order to do this, it will be necessary for him to prove at. least the extent of the interest of Bullwinkle in the $500 received by the defendant.

But it is unnecessary to speculate upon possible rights which may or may not hereafter appear in the further progress of the action. It is sufficient to say, so far as my opinion is concerned, that no claim against the defendant, founded upon the interest or ownership of Merrill in the $500 alleged to have been loaned by the firm to the former, passed to the plaintiff under or by virtue of the assignment; and, for that reason, the judgment, which includes that interest, cannot be allowed to stand. A new trial must be granted, with costs to abide the event.


author: Barbour, C.J. Jones, J.

text:
    JANE MOONEY, Plaintiff and Respondent, v. THE HUDSON RIVER RAILROAD COMPANY, impleaded, Defendants and Appellants.
    A railroad company may be held liable for negligence in propelling its cars, while persons are upon its track, precisely to the same extent as the owner of an ordinary carriage would, under like circumstances; indeed, greater care might be required from the former, as their cars are stopped with difficulty and cannot be turned out of their course.
    The right of a railroad company to run its cars in a' particular place is not exclusive; all other cars, carriages, and persons who are authorized by law to use the same place, have the same rights as the company, but the same degree of care and caution must be exercised by each. Sixteen hundred dollars will not be regarded as excessive damages for injuries sustained by a laboring woman, so badly bruised as to be unable to work for a long time.
    Before Barbour, C.J., Jones and Fithian, JJ.

      [Decided June 11, 1869.]
    This action was tried before Chief-Justice Robertson and a jury.
    This action was brought to recover damages sustained by a collision between a car of the Central Park, North and East River Railroad Company, and a locomotive of the Hudson River Railroad Company. On the 30th of July, 1866, the plaintiff entered one of the cars of the Central Park, North and East River Railroad Company, intending to ride as far as Eorty-first street and Tenth avenue. The complaint alleged that on the Tenth avenue, at or near Thirtieth street, through the negligence and carelessness of both defendants, the cars of both defendants came into collision, and that she was violently thrown out of the car which she was in and received severe injuries, for which she brought this action. The answer of the Central Park, North and East River Railroad Company admitted the collision, but denied that the plaintiff sustained any injury, or that the injury was occasioned by their negligence. The answer of the Hudson River Railroad Company admitted the collision, but charged that it was caused by the negligence of the street car, and that the plaintiff contributed to her injuries by her own negligence.
    The evidence is fully stated in the opinions.
    The jury found a verdict against both defendants.
    A motion was made by the defendants The Hudson River Railroad Company to set, aside the verdict as to them, on the ground that the verdict was against the weight of evidence, and the damages excessive, which motion was denied. The defendants the Hudson River Railroad Company appealed to General Term from this order and also from the judgment.

      Mr. Frank Loomis for appellant.
    The damages are excessive. The amount given by the jury is so grossly disproportionate to the extent and effect of plaintiff’s injuries as to compel the conclusion that the jury were influenced by partiality, prejudice, or passion. The verdict should be reduced or a new trial granted (Clapp v. Hudson R. R.R. Co., 19 Barb., 461; Blum v. Higgins, 8 Abbott, 104; Murray v. Hudson R. R.R. Co., 47 Barb., 196).
    The motions of the appellants for nonsuit was erroneously denied (24 N. Y., 433; 30 N. Y., 235; 22 How., 431; 29 Barb., 226).
    The motion of the appellants for a separate trial as between plaintiff and each of the defendants, as provided hy sec. 258 of the Code, should have been granted. The defences of the defendants were entirely distinct; their respective answers imputed negligence to each other, and a joint trial was calculated to and did prejudice the rights of the appellants and placed them at a disadvantage. The complaint alleged negligence on the 'part of the defendants, The Central Park, Horth and East River Railroad Company, having charge of the car upon which plaintiff was a passenger. The evidence showed such negligence. The jury by their verdict found the defendants The Central Park, North and East River Railroad Company guilty of such negligence. The negligence of those having charge of the street car must be regarded as the negligence of the plaintiff, and the judgment, as against appellants, cannot be maintained (Brown v. N. Y. C. R.R. Co., 32 N. Y., p. 597; 5 Robertson, 548).
    The verdict is contrary to the weight of evidence and should be set aside (49 Barb., 583; 25 N. Y., 363).

      Mr. Alexander H. Reavey for respondent.
    The action was well brought against both corporations. The car and locomotive having collided and caused the injury, was of itself prima fade evidence of negligence on the part of both. There was evidence tending to show that the collision was the fault of the appellants. The respondent entered the car as a passenger and paid the usual fare, and, while being carried to her place of destination, received the injuries, without negligence on her part (Colgrave v. N. Y. & New Haven and New York & Harlem R.R. Co’s, 2 N. Y. Rep., 492).
    There was evidence establishing the fact that the collision was occasioned by the cojicurrent negligence of both defendants, and the learned judge could not do otherwise than submit the case to the jury. The respondent was free from all contributing negligence ; she neither had the management of the car she was in, nor any control of the appellants’ locomotive (Wilds v. Hudson R. R.R., 33 Barb. Rep., 503; Brown v. N. Y. Central R.R., 32 N. Y. Rep., 597; Beisiegel v. N. Y. Central R.R., 34 N. Y. Rep., 622 ; Ernst v. Hudson R. R.R., 35 N. Y. Rep., 9).
    Even if it be conceded that there is a conflict of evidence, and that the evidence strongly preponderates in the appellants’ favor, the Court will not, and should not, for that reason, disturb the verdict of the jury; nor because the Court would have come to a different conclusion on the force or weight of the testimony (27 Barb. Rep., 528; 29 Barb. Rep., 491-504; 33 Barb. Rep., 127; 44 Barb. Rep., 554).
    The damages are not excessive, and the Court would not be justified in reducing the amount, or in granting a new trial upon that ground, unless it clearly appears from the evidence that the jury were Massed or prejudiced, or committed gross error in their consideration of the evidence, or, in other words, that they acted from passion, partiality, or corruption.

   By the Court:

Barbour, C.J.

This was an action for a personal injury alleged to have been caused by the negligence of the defendants.

Upon the trial it appeared that the plaintiff, while a passenger in a street railroad car, and standing upon the platform thereof, was struck by a car of the defendants which was being propelled by steam upon a track'crossing that of the street railroad, and thereby was wounded and injured.

Without looking into the facts to see whether there was any actual negligence beyond what may be inferred from this statement, I am of the opinion that a verdict in favor of the plaintiff was justified by the evidence.

Indeed, I see no reason why a railroad company may not, subject, of course, to the particular circumstances appearing in each case, be held liable for negligence in propelling its cars at all, while people are standing upon its track, precisely to the same extent as the owner of an ordinary carnage would be under like circumstances. Indeed, greater care and caution might well be required from the former; as their cars are stopped with difficulty, and cannot be turned out of their course at all.

A railroad company, it is true, is expressly authorized by its charter to run its cars in a particular place. But that right is not exclusive. All other cars, carriages, and persons who are authorized by law to rise the same place, as was the case at the point in question, have precisely the same rights that such company has. As a matter of course, however, let what may be the degree of negligence on the part of the company in such a case, a corresponding degree of care and caution must be exercised by the persons endangered, as, otherwise, the latter will themselves be guilty of negligence, and thereby furnish a good defence to the others.

The defendant objects, also, to the amount of the recovery as excessive.

The evidence shows that the plaintiff, a poor laboring woman, was struck by the car and thrown into the street, and so badly bruised in various parts of her person as to be unable for a long time to go out; that she yet remained, at the time of the trial, wholly unable to perform any work whatever, and still continued to suffer great pain. Several physicians, also, testified that such injuries might become permanent.

"Who can say that all this bodily pain and mental anguish suffered by this woman, together with the loss of her power to obtain a subsistence by her labor, perhaps for life, is over-compensated by a verdict of $1,600 %

The judgment should be affirmed.

Jones, J.

(dissenting). The plaintiff was a passenger in one of the Belt road cars, drawn by horses. While this car was being driven on its course up-town upon the company’s track, laid down in Tenth avenue, a collision occurred between it and one ,of the locomotives of the defendants, which, coming out of the depot inclosure, situated on the block bounded by Twenty-ninth and Thirtieth streets and the Ninth and Tenth avenues, and running on a track of the defendants which crosses the Belt road track at an angle a few feet south of the southerly line of Thirtieth street, struck the Belt road car at that point. By the collision the plaintiff received the injuries in respect whereof this' action was brought.

The plaintiff adduced proof which, if believed, showed that at the time the locomotive made its appearance outside the gate on the easterly side of the Tenth avenue, the Belt car was so near it that its only safety was to endeavor by an increase of speed to pass in front, inasmuch as if it broke up, the locomotive would strike it in the centre; that the locomotive could not be seen coming until it appeared outside the gate ; that no intimation was given of its coming, either by flag, or bell, or blowing the whistle, and that the only hallooing or shouting was just about the time of the collision.

The defendant adduced evidence showing that no flag was displayed (folio 137) in such manner as to attract attention; that from the avenue the locomotive can be seen coming while it is in the depot yard and before it reaches the gate; that when the Belt car was forty or fifty feet south of the point of collision several of the employes of the defendants warned the driver of the Belt car, and endeavored to cause him to stop by waving their hands and shouting' at him; one witness swore that he was standing forty-eight feet south of the point of collision when the Belt car passed him, and he then called to its passengers and .said, “Jump out of that car” (folio 117, compare with folios 60 and 62). Another witness swears he hallooed, “Wide awake! look out! stand aside! keep clear!” (folio 135). One of the bralcemen on the locomotive train began to break up before the engineer whistled “ on brakes ” (folio 151). The defendants’ proof tended to show that the engineer rang the bell and sounded the whistle of his locomotive.

The jury rendered a verdict against both defendants. The appellant, the Hudson River Railroad Company, moved for a new trial, on the ground, among others, that the verdict was against the weight of evidence. The motion was denied and the judgment was entered on the verdict. The defendant the Hudson River Railroad Company appealed from the judgment, and also from the order refusing to grant a new trial.

From the case on appeal it would seem that the preponderance of proof was clearly in favor of the appellant. But this is not of itself a sufficient reason for setting aside a verdict. It is the province of the jury to decide on conflicting evidence, and consequently when the evidence is not of such a character a's to make it error in the judge to refuse a motion to take the case from the jury, the verdict when rendered must stand, unless it is manifest that the jury have not passed on the conflicting evidence, but have rendered a verdict without any regard to the testimony in the case. Such cases do not often arise; but they do occasionally, and I think this is one of the instances.

The jury have found both the defendants guilty of negligence; a verdict wholly unwarranted by the evidence, and which does not pass on the conflicting evidence. The case shows a marked conflict between the witnesses Flanagan, O’Brien, Mc-Keon, and McDonald, and the witnesses Cuddy, Roach, Hogan, Lockett, A flick, McBride, and Smith. These are the only two sets of witnesses who throw any light upon the manner in which the collision occurred.

According to the testimony of the first set, it occurred through negligence on the part of the Hudson River Railroad Company, without any concurring negligence on the part of the Belt car.

According to the second set, it occurred through the negligence of the Belt car, without any concurring negligence on the part of the Hudson River Railroad Company.

If the jury had found against either company and in favor of the other, the verdict would have passed on this conflict, and it would not have been disturbed now, because the court thought the evidence preponderated the other way.

But (they have found a verdict which there is not an atom of evidence to support, and which has not passed on the conflict of testimony.

The verdict is not based upon any credit given to the first set of witnesses superior to that given to the second. The case therefore comes before the General Term without a verdict establishing such superiority, and it necessarily presents to the' Court the question whether the Court will weigh between the two sets of witnesses, and determine for itself to which set the greater evidence is due.

This, I think, the Court, even if it had the power, should not undertake to do, but should submit that question of credibility to be passed on by another jury, under suitable instructions by the then presiding' justice.

The judgment should be reversed, with costs to appellant to ■abide the event.


text:
    CHARLES H. SMITH, Plaintiff and Appellant, v. TIMOTHY J. COE, Defendant and Respondent.
    A covenant by a sub-tenant to repair is not a mere covenant of indemnity, but renders him liable to his lessor, whether the latter has paid the original landlord or not.
    Before Barbour, C.J., Fithian and Freedman, JJ.

      [Decided June 11, 1869.]
    This case was tided before Mr. Justice McCunn and a jury. The action was brought to recover liquidated damages for breach of covenants by defendant, contained in a lease by plaintiff to him of premises Nos. 604, 606, and 608 Broadway. The lease contained a covenant to keep the premises in good repair, and to surrender them at the end of lease in the same condition as at commencement, and also a covenant that the defendant would “ not at any time before June 1,1867, negotiate for, or accept or be interested in, any lease of said premises or any part thereof,” except from the plaintiff or his assigns, or by his consent in writing, under the forfeiture of $10,000, as liquidated damages, and not as a penalty in addition to any other remedy.
    After the plaintiff had rested his case, the defendant moved for a nonsuit, when plaintiff requested the Court "to submit to the jury the following question, among others: “ Whether the defendant had not broken his covenant as to repairs ?” The Court refused to submit the question, and plaintiff excepted.
    The Court then granted the motion for nonsuit, and plaintiff excepted.
    A motion was made for a new trial, which was denied.
    The plaintiff appealed from the order denying a new trial, and also from the judgment entered on the nonsuit.

      Mr. Joshua M. Van Cott for appellant.
    The evidence as to insufficient repairs, uncontradicted, was sufficient, and the question whether defendant had not broken his covenant as to repairs should have been submitted to the jury.

      Mr. John M. Martin for respondent.
    The evidence shows that the building was in as good repair, taken altogether, in May, 1867, as when former lessee took it. This was all that defendant was required to do under his covenant (Taylor Land. & Ten., sec. 407).
   By the Court:

Barbour, C.J.

The complaint in this case sets up facts sufficient to have entitled the plaintiff to a recovery upon his claim of damages, because of the failure of the defendant to return the premises in as good order as when received, if he succeeded in proving such facts upon the trial; and, upon a careful examination of the testimony, I am satisfied that the jury would have been justified in finding a verdict for the plaintiff upon that claim, had the evidence been submitted to them. The covenant of the defendant requires him to leave the premises on the 1st of May, 1867, in as good condition and repair as they were in on the 18th of February, 1862, as well as to keep them' in good repair during the term; and I think there was enough evidence -before the jury, if credited by them, to authorize a finding that some sixty doors, and other portions of the premises, were not in as good repair and condition when left, at the end of the term, as they were in on the 18th of February, 1867.

Assuming, then, that the jury would so have found, had the matter been submitted to them, the plaintiff would have been entitled to recover the amount, measured in money, of the injury sustained by the premises, because of the failure of the defendant to repair. For his covenant to repair is not a mere covenant of indemnity, but it renders him liable to his lessor, in case of nonperformance, whether the latter has paid the original landlord or not (Jackson v. Post, 17 Johns., 479). I am, therefore, of opinion that the lealned justice erred in directing a verdict for the defendant; and having arrived at this conclusion, I see no necessity for considering the further questions raised upon the argument by the counsel for the appellant.

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


author: Freedman, J.

text:
    JAMES SPEYERS Plaintiff, v. EDWARD LAMBERT, Defendant.
    It must be assumed, that, in passing chapter 464 of Laws of 1863, the Legislature intended to abolish altogether the statutory requirement, that the consideration be expressed in every instrument coming within section 2 of title 2, chapter 7, part 1 of the Revised Statutes.
    In the face of this legislative intent, sufficiently expressed, the judicial interpretation of the statute, as applied in some cases to the law of 1813, in ,conformity with the English doctrine enunciated in Wain v. Warlters (5 East., 10), must cease as inconsistent therewith and repugnant thereto.
    The judicial decisions and legislative action of other States, upon this point, reviewed.
    Before Barbour, C.J., Fithian and Freedman, JJ.

      [Decided June 11, 1869.]
    This case was tried before Mr. Justice Monell and a jury.
    This was a motion for judgment upon verdict directed upon the trial' of the action in favor of the plaintiff, subject to the opinion of the Court at General Term.
    The action was brought against the defendant as surety for one Mrs. Marshall, a tenant of the plaintiff. The evidence showed, before renting the premises, the plaintiff required security for the rent; Mrs. Marshall proposed the name of the defendant; a lease was drawn up, which bears date April 6, 1867, and which, it was assumed, was signed and executed by her on that day; the plaintiff, however, before executing it on his part, called upon the defendant in relation to the security, and the defendant thereupon, in the presence of the plaintiff, wrote and executed an agreement in "writing and delivered the same to the plaintiff, as follows:
    “New York, April 11, 1867.

      “ Jas. Speyers, Esq.:

      “Dear Sir—The house you have rented to Mrs. A. B. Marshall, I agree herewith to hold myself responsible for the payment of the monthly rent, say $400 dollars per month.
    “ Tours, respectfully,
    “EDWARD LAMBERT.”
    After the receipt of this instrument the plaintiff signed the lease and directed the same to he delivered to Mrs. Marshall) and on the first of May following Mrs. Marshall went into occupation of the premises under the lease. The defendant paid the first month’s rent, and when the agreement was first made he stated to the plaintiff that he had the rent for six months in his hand. The rent sued for accrued during the first six months of the tenant’s term, to wit, from June 1,1867, to October 1, 1867, for which amount, together with interest, the justice at the trial directed a verdict for the plaintiff, subject to the opinion of the Court at General Term.

      Mr. Edward Patterson for defendant.
    The plaintiff should not have leave to enter judgment upon the verdict, because the instrument sued upon is void by the statute of frauds, for the reason that it does not express the consideration upon which the agreement was founded.
    It is true that the statute of frauds as amended by ch. 464, Laws of 1863, no longer requires in express terms the statement of the consideration in the written note or memorandum.
    Prior to 1863, and ever since the adoption of the R. S. in 1830, the statute under consideration (3 R. S., part 2, ch. 7, title 1; sec. 2, sub. 2) provided that an agreement, whereby a person became answerable by special promise for the debt, &c., of another should be void unless some note or memorandum thereof expressing the consideration was made. The amendment of 1863 consists in the exclusion of the words italicized from this subdivision of the section of the statute.
    The consideration to sustain an agreement, whether within the statute of frauds or not, must be a valid and sufficient consid

      eration (Rann v. Hughes, 7 T. C., 350; 1 Comyn on Cont. [1st ed.], 13; Smith v. Ware, 13 John., 257; Burnet v. Bisco, 4 John., 235 ; Brear v. Hardenburgh, 5 Johns., .272 ; People v. Shall, 9 Cowen, 778 ; Ingram v. Gilbert, 20 Barb., 152).
    The question of consideration in the case at bar is therefore settled by the contract, and, applying the rules above contended for, it appears that the plaintiff seeks to support a present promise of a guarantor upon a consideration, wholly past and executed, in a transaction as to which he was an entire stranger (and hence where the consideration could not have been executed at his request), and where no change was made (so to be presumed) in the relations of the promisee and the guarantor’s principal.
    Such a promise is void for want of consideration (Chaffee v. Thomas, 7 Cow., 358 ; Comstock v. Smith, 7 Johns., 87 ; Parker v. Crane, 6 Wend., 649; Leland v. Douglass, 1 Wend., 492 ; Buckley v. Landon, 2 Conn., 404 ; Newcomb v. Clark, 2 Denio, 226; Weed v. Clark, 4 Sandf., 31; Farnsworth v. Clark, 44 Barb., 602, and cases there cited, viz.: 24 Maine, 177,7 Har, & J. (Md.) 39, id., 457, 9 Vt., 233,1 Com. B., 154, 1 Paine, C. C., 591; 2 N. Y., 557, id., 233; Williams v. Marshall, 42 Barb., 524).

      Mr. David McAdam for plaintiff.
    The letter of guarantee sued on is good in law. It need not express a consideration (Laws 1863, chapter 464, page 802); and the renting of the premises was sufficient as a consideration to support it (Parsons on Contracts, vol. 1,4th ed., pages 496, 497; Gottsberger v. Radway, 2 Hilt., 342; Clark v. Burdett, 2 Hall, 197; McKenzie v. Farrell, 4 Bos., 192; Church v. Brown, 21 N. Y., 315).
    The plaintiff’s undisputed evidence shows that the plaintiff did not sign the lease or deliver it until he got the defendant’s guarantee, and refused to rent without it; and the fact that the guarantee bears date subsequent to the lease is of no consequence (Gottsberger v. Radway, 2 Hilt., 342).
   By the Court:

Freedman, J.

The defendant insists that judgment should be ordered for him as in ease of nonsuit, because the instrument sued upon is void by the statute of frauds, for the reason that it does not express upon its face a consideration. lie claims that tiiis is necessary, notwithstanding this requirement does no longer exist in express terms since the passage of chapter 464 . of the Laws of 1863; that the statute, as it was framed by the revisors and adopted by the legislature (3 Rev. St., part 1, chap. 7, title 1, section 2, subd. 2), was itself an amendment of the so-called statute of frauds of 1813 (2 Rev. Laws 1813, chap. 4, p. 78, but properly the act of 1787), which was identical with the statute as it stands since the amendment of 1863 ; that therefore the amendment of 1863 merely re-established the rule of ' law as it existed before the Revised Statutes; that section 11 of the act of 1813 was literally tire same as section 4 of the original statute of 29 Oar., 2, chap. 3, from which our law was taken; that therefore the. statutes of 1863 and 1813 and the English statute, being, with reference to this point, in all respects similar, must be construed together; that the principles of interpretation, which were at any time applied to one of these acts, attach to the others; and that inasmuch as it was settled law under the English statute and under section'll of the act of 1813, now substantially revived, that in order to sustain an action upon an agreement of /guarantee of the debt, &c., of another, the consideration must appear in the writing, for the •reason that the consideration is a necessary and integral part df^the agreement, without which a valid contract cannot be made, the same rule applies to the instrument forming the basis of this action.

The defendant therefore wholly rests his case upon the assumtion that such was .the settled law prior to 1830 in the absence of all statutory requirements to this effect. The first case in which this proposition was laid down was Wain v. Warlters (5 East., 10), decided in the Queen’s Bench in 1804, in which the defendant had promised in writing to pay the debt of another person, which was past due. Although the decision of this case was several times disapproved by Lord Eldon, and particularly in Gardom (15 Ves., 286), it was never overruled, and afterwards, the same point being directly presented to the judges of the Queen’s Bench, it was unanimously affirmed in Saunders v. Wakefield (4 Barn, and Ald., 595), and from that time the doctrine of Wain v. Warlters appears to have been admitted as, beyond question, the English law upon this point. In the United States the same question has occasioned a more marked conflict of judicial opinion than any other arising under the statute of frauds. Of those States where the word agreement ” is retained in the clause requiring the memorandum, the doctrine of Wain v. Warlters is repudiated in Maine (Levy v. Merrill, 4 Greenl., 189; Gillighan v. Boardman, 29 Maine [16 Shop.], 81), Vermont (Smith v. Ide, 3 Verm. R, 299; Patchin v. Swift, 21 ib., 297), Connecticut (Sage v. Wilcox, 6 Conn. R, 81), Massachusetts (Packard v. Richardson, 17 Mass. R., 122, and, to remove all uncertainty the Revised Statutes of Massachusetts have since expressly provided that the consideration need not appear), New Jersey (Buckley v. Beardslee, 2 South., 572), North Carolina (Miller v. Irvine, 1 Dev. and Bat., 103; Ashford v. Robinson, 8 Ired., 114), Ohio (Reed v. Evans, 17 Ohio R., 128), and Missouri (Bean v. Valle, (20 Mo. R., 103; Halsa v. Halsa, 8 ib., 305); but it has received the sanction of the courts of Mew Hampshire, Georgia, Michigan, and Wisconsin. In Maryland the question does not seem to have been finally disposed of (see Brooks v. Dent, 1 Md. Ch. Dec., 530); in South Carolina, in which the English doctrine had been approved (in Stephens v. Winn, 2 Nott and McC., 372, note a), it was afterwards treated as an open question (in Lecat v. Tavel, 3 McCord, 158), and in Indiana the tendency of the courts to adopt the English doctrine was checked by the legislature by the incorporation of a provision into the present Revised Statutes, to the effect that the consideration may be proved by parol. In Louisiana the civil law prevails, and by that law no consideration is necessary to be stated (Ringgold v. Newkirk, 3 Ark, 97).

In the State of New York the question also gave rise to a variety of opinions,, and with all due respect to the expressions of learned and distinguished judges, to the effect that the English doctrine became the law of this State, I cannot subscribe to this broad statement.

The construction given in Wain v. Warlters to the term agreement,” in'the English statute, was adopted by the Supreme Court of the State of New York in 1808, in Sears v. Brink (3 Johns. Rep., 210), and followed in Kerr v. Shaw (13 Johns., 236), decided in 1816. In Livingston v. Tremper (4 Johns., 416), the decision in Sears v. Brink was qualified so as not to include contracts under seal, upon the ground that the statute of frauds was not meant to alter the common-law rule in regal’d to such contracts, that at common law any promise under seal was valid, and that a seal imports a consideration. In Leonard v. Vredenburgh (8 Johns., 23), the Supreme Court awarded, a new trial, upon the ground that the testimony offered on the tríal as to the consideration was rejected, for the reason that the consideration for the promise was not stated in the writing produced. Kent, Oh. J., in delivering the opinion of the Court, says: “ The case appeared to me then to be governed by the decision in Wain v. Warlters, which was recognized by this Court in Sears v. Brinks; but, upon bet-' ter reflection, I now think that the plaintiff ought to have recovered upon that contract.”

In Bailey v. Freeman (11 Johns., 223), Platt, J., in delivering the opinion of the Court, approved of the decision in Leonard v. Vredenburgh, supra,, and held that where thé credit is originally given to the defendant as surety, it is unnecessary to show a separate consideration for the promise of the defendant; that where the principal contract and the guarantee were, simultaneous; the consideration of the former supports the latter, that the con- ' sideration may be shown by parol proof in such case, and intimated that the doctrine laid down in Wain v. Warlters should be confined to promises to pay an independent, previously existing-debt of another person, and should not be extended to original collateral agreements.

The case of Nelson v. Dubois (13 Johns., 175) is to the same effect. The opinion of the Court was delivered by Justice Spencer, while Justice Van Ness, Avho had delivered the opinion of the Court in Sears v. Brink, supt'a, dissented.

In Rogers v. Kneeland (10 Wend., 251, 252), Justice Nelson, in delivering the opinion of the Court, not finding it necessary to disapprove of Sears v. Brink, and assuming’ it to have been followed in other cases, which I have shown has not been the fact, held that the consideration may be implied or inferred upon the general principle applicable to all instruments or agreements, that whatever may be fairly implied from the terms or language of an instrument is in judgment of law contained in it. This decision was subsequently affirmed by the Court of Errors in 1834 (13 Wend., 114), where it was held, however, that the object of the statute was to reach every ease of mere suretyship, whether the agreement of the surety was collateral to & previous promise or liability on the part of the principal debtor, or only collateral to a promise or agreement made at the same time with the promise of the surety to indemnify against a future default or liability of such principal debtor, and that where the whole credit is not given to the person who comes in to answer for another, the promise is collateral. The Chancellor, in this opinion, regretted that the courts had felt themselves bound to give a construction-to the statute, by which it was made, in many cases, to operate as a fraud on those who have acted upon the faith of a written promise of a third person, but which, unfortunately, had no sufficient consideration actually appearing upon the face of the writing; and in noticing the amendment of the statute, by the revision of 1830, the Chancellor intimated that it was a question whether the legislature has not gone still further in the Revised Statutes, and inadvertently adopted provisions which will include agreements under seal, as well as those which are not, contrary to the decision of the Supreme Court in Livingston v. Tremper, supra.

But even in England it was, subsequently to the decision in Wain v. Warlters, held not to be necessary that the consideration should be formally and precisely expressed in the memorandum, but that the same might be implied or inferred from the language of the instrument. This led to the remark of Tindall, Oh. J., That if by fair inference we can'find that, that is sufficient—if we can, as it were, spell it out from the agreement.” This practice seems to have been adopted in this State to some extent in disposing of cases presenting no features by which they could be distinguished from Wain v. Warlters ; but it was disapproved by the revisers and the legislature, who thought that it was improper for courts to find out the consideration of an agreement by inferring or implying or spelling out the consideration, or by making it out by argument or conjecture ; and it was enacted by the legislature in the adoption of the Revised Statutes, that the agreement should express the consideration. This remained the law of the State for over- thirty-years, but the question what cases did or did not come within this requirement, and the question - as to the sufficiency of the expression of the consideration in each individual case, gave rise to much additional litigation, and produced a still greater conflict of opinion than had previously existed, and the legislature in 1863 saw fit to again strike out the provision of the statute which required that the consideration should be expressed in the instrument, fi^he defendant therefore insists that this amounts to a restoration of the act of 1813, and that the restoration carries with it all the results of the judicial interpretation put upon that act. If this be correct," we are at liberty to spell out the consideration from the defendant’s agreement, and I think it could be done (see Dunning v. Roberts, 35 Barb., 463). But-1 do not think it necessarily follows, because the legislature,' in 1863, made the law read, as it once read in 1813, that a judicial interpretation, then applied without any statutory authority, should be again put in force in spite of a legislative declaration to the contrary. The case of Ely v. Holton (15 N. Y., 598) does not go to this extent. The effect of the amendment of 1863' must be construed agreeably to the intention of the legislature which enacted it; to hold that the legislature, in striking from the statute the requirement that the consideration must be expressed in the agreements mentioned in the statute, nevertheless intended to enact that the courts might still continue to exact and enforce this requirement, involves a palpable absurdity, and no construction or interpretation should ever be put upon any expression of the legislative will which leads to such a result.

On the contrary, it is fair to assume that, in view of the fact that many of the States had repudiated the doctrine of Wain v. Warlters from the start; that in others, where it had been followed to some extent, it was either considerably modified by the courts, and in the course of time restricted to a small class of cases, or entirely abrogated by statute; that even the courts of England found themselves compelled to modify and refine it by degrees; that, after an attempt and trial for more than thirty years to enforce it in this State by express statutory enactment, it was found to do more harm than good, inasmuch as it operated as a fraud on the merchant, the farmer, the mechanic, and the laborer who acted upon the faith of the written promise of a third person, but who in most cases found it very difficult to state the real consideration of the collateral promise in legal and technical form, so as to make a valid agreement; that, therefore, in this age of great and rapid commercial progress, the further requirement of a compliance with a technical rule of law not prescribed by nor observed in other States, the enforcement of which had proved an endless source of trouble, annoyance, and injustice, without yielding in a corresponding degree the benefits expected to flow from it, namely, the prevention of the crime of perjury, was inconsistent with the true commercial interests of the great State of New York, with its rapidly increasing population, composed in part of valuable foreign elements. It is fair to assume, I repeat, that, in view of all these considerations, the legislature changed the statute in 1863 with the express intention that the requirement that the consideration be expressed in every agreement should thereafter no longer be insisted on in any manner. I can arrive at no other conclusion, and whoever will undertake the task of reading and studying among other cases the decision in Brewster v. Silence (4 Selden, 207), followed in Glen Cove Insurance Co. v. Harrold (20 Barb., 298),' and in Draper v. Snow (20 N. Y. 331), and on the other hand "the case of the Union Bank v. Coster’s Executors (3 Comst., 203), the controlling principle of which decision was necessarily involved and reaffirmed and approved in Gates v. McKee (3 Kern., 232), and again in Church v. Brown (21 N. Y., 315), and then notice the frank admission of Chief-Justice Comstock, in the last-named case, that the decision of the case of Brewster v. Silence, which he had followed, with his associates, in Draper v. Snow (20 N. Y., 331), was erroneous, and thereafter he should be prepared to uphold the contracts and dealings of men belonging to the class which are condemned in the decision referred to; whoever, I say, will undertake that task, will, in all probability, arrive at the same' conclusion to which' I have arrived as regards the reasons which induced the legislature, among other things, to change the statute in 1863. It is true, the legislature might have been-more explicit, and enacted, in the words of the Massachusetts statute, that “the consideration of any such promise, contract, or. agreement, need not be set forth or expressed in the writing, signed by the party to be charged therewith, but may be -proved by any other legal evidence,” or the words of the Indiana statute, which is nearly similar to that' of Massachusetts; but, although this has not been done, I think the legislature of this State has been sufficiently explicit, under all the circumstances, in making known its determination to enact the same rule. In' the face of this legislative -intent, sufficiently expressed, the judicial interpretation of the law, as applied in some cases to the law of 1813, in conformity with-the English doctrine, must cease, as inconsistent therewith and totally repugnant thereto. I have no doubt that "since 1863 securities to an immense amount have been taken in business throughout this State on reliance upon the idea that a compliance with the old rule is no longer necessary; the interpretation contended for by the dcfendant would place all the contracts entered into in respect to these securities in jeopardy, and would thus greatly increase the uncertainty of the law, which is now proverbial.

In conclusion, I refer to the case of Thompson v. Blanchard (3 Comst., 337), in which it was held, by the Court of Appeals, that an undertaking required by statute to be entered into by sureties, in order to give a right of appeal, is valid if it contain the necessary stipulations, although it does not express a consideration, and is not under seal; and that if it could be said that such an instrument. would not be obligatory by the 'statute of frauds, the very obvious answer is, that the legislature of 1848 had the same power to' restore the common law, as to this class of securities, that their predecessors had to abolish it.

It may be a question whether, under the peculiar circumstances Of this case, the defendant is not liable upon his agreement as an original undertaking, but under the views already expressed it is unnecessary to discuss this point.

Judgment absolute should be ordered for the plaintiff on the verdict, with costs.