text:
    Patrick Mahoney, Respondent, v. Cornelius Dwyer, Appellant.

      Liability for a, dangerous animal in apublic place— questions which the trial judge may allow oi' refuse to alloxo.

    A party lias no right to put a dangerous animal in a place where he knows the public are in the habit of traveling, whether such place be a public street or not. It is within the discretion of the trial judge to allow or refuse to allow answers to be made t.o questions put to a witness upon the trial of an action, when it appears that, whether answered or not, they would have no legitimate influence upon the verdict, and where the subject to which the evidence relates has been fully inquired into and is understood by the jury.
    Appeal by tlie defendant, Cornelius Dwyer, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in tlie office of the clerk of the county of Kings on the 11th day of April, 1894, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 5th day of May, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      ' This action was brought to recover damages arising from personal injuries resulting from the defendant’s alleged negligence. The complaint contained, among others, the following allegation ; “ That on the night of the said 15th day of October, 1892, the said heifer was negligently and carelessly permitted by said defendant to be in said highway, and that as the plaintiff passed along the said highway the said heifer sprang at him and inflicted upon him severe and permanent injuries, to his damage ten thousand dollars.”

      M. L. Towns, for the appellant.

      Sanders Shanks, for the respondent.
   Pratt, J.:

This is an appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial.

After a careful reading of the case, we are satisfied the verdict is sustained by sufficient evidence.

It was not essential to show that the laxie where the plaintiff was injured was a public street. A party has no right to put a dangerous animal in a place that he knows the public are in the habit of traveling. The plaintiff testified that the lane Avas used by the people as a thoroughfare. This, without any evidence to the contrary, AA^as sufficient to Avarrant its submission to the jury.

As to the exceptions taken to the rulings of the judge in excluding evidence upon the trial, it may be said that those matters fairly fell within the discretion of the judge whether to alloAV or refuse the ansAvers to the questions, it being apparent that whether answered or not they Avould have had no legitimate influence upon the verdict; besides, the subject to which the evidence related Avas fully inquired into and could not have failed to haAe been understood by the jury.

The injury, the subject of inquiry, was exhibited to the jury and experts Avere examined as to its cause, and the effort to make the plaintiff admit he had suffered from a loathsome disease, after he had refused to answer on the ground that the answer Avould degrade him, Avas not material enough to the issue to furnish cause to call for a reversal of the judgment.

Even if plaintiff had had such disease it furnished no defense to the aclion, but was urged to account for the scar upon his groin, which, was hold to have been made with a blunt or semi-blunt instrument.

There is another answer to the exceptions. (1) The questions called for evidence of matters that occurred several yearn previous to the occurrence under investigation, and (2) the' questions were not put so as to refer specifically to the injury complained of.

While we think the verdict was quite ample to compensate the plaintiff, we cannot say it is so excessive as to call for a reversal of the judgment.

The judgment and order should be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Pratt, J. :

license: Public Domain

text:
    Delia Classey, Respondent, v. The Metropolitan Life Insurance Company, Appellant.

      Forfeiture clause in a life insurance policy — waiver thereof — issuance of a policy to a third person — assignment of a policy.

      A provision in a policy of life insurance, that the rights of the assured shall he forfeited in case of the non-payment of premiums, is for the benefit of the insurer and can be waived.
    A person may insure his own life, and the policy, when issued, will be valid in the hands of an assignee.
    If a person makes an application for a life insurance policy and causes the policy to be issued in favor of another, the legal effect is the same as if the policy had been issued to the person whose life was insured, and had been by her assigned.
    Appeal by the defendant, The Metropolitan' Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of March, 1894, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 2d day of March, 1894, denying the defendant’s motion for a new trial.

      G. W. Bovee, Jr., and William .//. Arnoux, for the appellant.

      Baldwin F. Straúss and Almet F. JenTcs, for the respondent.
   Pratt, J. :

The provision in the policies for forfeiture in case of non-payment of premiums was for the benefit of the company and could be waived. Tlie evidence of waiver was properly submitted to the jury, and the verdict was justified by the evidence. The acts of the agents from which waiver was implied were within the scope of the duties of the agents, and their legal effect does not depend upon the contract between the parties.

The objection of no insurable interest lias no validity. One may insure his own life, and the policy, when issued, will he valid in the hands ®£ tlie assignee. In the case at bar the person insured made the application and caused the policy to be issued in favor of the plaintiff. In legal effect that was the same as if issued to the person whose life was insured, and by her assigned. The assignment was eliminated, nothing more. The objection of no insurable interest is somewhat ungracious, after tlie company, with full knowledge of the facts, has accepted tlie premiums, and in tlie present case cannot prevail.

Brown, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


author: Pratt, J.:

text:
    Matthew S. Frazier, Respondent, v. James Stewart and Another, Appellants.

      Application of payments — evidence sufficient to remove the bar of the Statute of limitations.

    Upon the trial of an action it was shown that the Statute of Limitations had run against the plaintiff’s claim, unless the claim was brought within the statute by certain payments made by the defendants to the plaintiff. Tlie paymaster of the defendants testified that such payments were made by him .upon and for two specific items. The evidence offered by the defendants in regard to the circumstances attending such payments was not rebutted by any witness for the plaintiff, and in the plaintiff’s books two items were charged for such two amounts on the date just prior to the payment made by the defendants, and directly opposite each was a credit of cash, in amount the same as such items.
    The bookkeeper of the plaintiff, who received the payments, admitted that the paymaster of the defendants said something when he made the payments. but he could not remember what, while the paymaster testified that he said the payments were made upon such two items of credit.

      Held, that the verdict of the jury in favor of the plaintiff was against the weight of the evidence, and that the bar of the Statute of Limitations was not removed by such payments.
    Appeal by the defendants, James Stewart and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 15th day of March, 1894, upon the verdict of a jury rendered after a trial at the Westchester Circuit, and also from an order entered in said clerk’s office on the 14th day of April, 1894, denying the defendants’ motion for a new trial made upon the minutes,

      Joseph F. Daly, for the appellants.

      John F. Brennan, for the respondent.
   Pratt, J.:

• This is an appeal from a judgment entered upon a verdict of a -'jury for the sum of $1,043.43.

The weight of evidence was decidedly with the defendants that the Statute of Limitations had run against the whole claim except the sum of eighty-four dollars. The only material question upon this point related to two payments made by the defendants within six years previous to the bringing of the suit, and the plaintiff concedes that if those payments were not made on the general account-then the statute has barred all except the sum of eighty-four dollars. The claim of defendants was that these two payments, one of twenty-two dollars and the other of seventeen dollars, were made upon and for ' two specific items. This was sworn to positively by the paymaster of the defendants, and the evidence in regard to the circumstances attending the payment is not rebutted by any witness for the plaintiff ; in fact, I think the evidence of the defendants’ paymaster is corroborated by the books of the plaintiff, as in the books of plaintiff two items are charged for these same amounts on the date just prior to the payments, and right opposite is a credit of cash; the payments were for the exact amount of the items.

The bookkeeper of plaintiff, who received the payments, admitted that the paymaster said something, but he could not remember what, while the paymaster testified that lie said that the payments were made upon the two items of credit wliich were for the precise amount and had recently accrued.

Under all the circumstances we think the judgment should be reduced to the sum of eiglity-four dollars, and judgment rendered for eiglity-four dollars. If the plaintiff shall stipulate to reduce the judgment to that amount then he may have judgment for that amount, without costs, otherwise a new trial is granted.

Brown, P. J., concurred; Dykman, J., not sitting.

Judgment reversed and new trial granted, costs to abide the event, unless plaintiff stipulates within twenty days to reduce the judgment to the sum of eighty-four dollars and interest, in which case the judgment, as reduced, is affirmed, without costs.


author: Dykman, J.:

text:
    Laura Steven, Respondent, v. John B. Lord, as Executor, etc., of Thomas B. Robb, Deceased, Appellant.

      Promissory note made by a firm — assumed, by one pan'tner — a pi'ima/ry liability created, thereby ■— effect of payments made thereon.

    The sole surviving partner of a firm, which was the maker of a promissory note, becomes the principal debtor thereon by consenting that the holder of the note should release the personal representatives of one of the former members of such firm from liability thereunder, and by assuming the payment of the firm debts upon the withdrawal from the firm of his other co-partners.
    The partners .who withdraw' from the firm under such circumstances still remain liable to the holder of the note, but their liability is that of sureties to the principal debtor, and the relation between the sole surviving partner and the withdrawing partners imposes upon the former the obligation of indemnity ; under such circumstances, it is clearly the right of the holder of the note to look to the sole surviving partner or his estate for the payment of the note, and it is within the power of the withdrawing partners to compel the holder of the note to treat such surviving partner as the principal debtor.
    The rule that the estate of a deceased partner cannot be subjected to the payment of the partnership debts until after the remedies against the surviving partners shall have been exhausted is inapplicable to such a case.
    The legal effect of a payment of principal or interest is unchanged by the Code of Civil Procedure, and it operates as an acknowledgment of the continued existence of tlie demand; it is not of itself either a promise or a contract, but it is a deliberate act which constitutes a clear recognition of the existence and validity of the demand from which a promise to pay the same may be implied. It is an admission that there is a subsisting debt which the debtor is willing to pay.
    Appeal by tlie defendant, John B. Lord, as executor, etc., of Thomas B. Robb, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of July, 1894, upon the decision of the -court rendered after a trial at the Kings County Special Term.

      Thenford Woodhull, for the appellant.

      Willia/m T. Gilbert and Jasper W. Gilbert, for the respondent.
   Dykman, J.:

This is an action upon a promissory note, of which the following is a copy:

“$15,000 00-100. New York, January 16, 18J8.
“ Two years after date we promise to pay to the order of Mrs. Laura Steven fifteen thousand dollars, with interest, at rate of seven per cent per annum. Value received.
“ No. 304. Due. ~W. B. HUNTER & CO.”

The persons composing the co-partnership firm of W. B. Hunter & Co. at the time of the execution of the note were Hunter, Robb, "Wykes and Steven. "Wykes retired from the firm in 18J9, and Steven retired in 1880. Each relinquished his interest in the partnership bnsiness and assets upon an agreement of the remaining partners that they would assume and pay all the debts and discharge all the liabilities of the firm.

Hunter died in 1888, and the plaintiff, with the assent of Robb, Wykes and Steven, released Hunter’s personal representatives from all liability upon this note in suit. Robb died in July, and this action is brought against the defendant as the personal representative of Robb.

The claim of the plaintiff upon the note was presented to the defendant as such executor, and rejected.

One of the defenses set up against the note is the Statute of Limitations, and to meet that defense the plaintiff proved, upon testimony that remained undisputed, that Robb made payments on account of the interest upon this note every year between July, 1880, and July, 1892. The note matured January 19, 1880, and none of the payments after that date were as large as the sum due for interest when they were made.

The cause was tried before a judge without a jury, and he found the foregoing facts and decided the case in favor of the plaintiff. The defendant lias appealed from the judgment entered upon such decision.

It is to be observed, in justification of the action against the defendant, that his testator Robb at the time of his death was the sole surviving partner of the firm of W. B. Hunter & Co. By his transactions with his co-partners and his consent to the release of the personal representatives of Hunter, he became the principal" debtor upon the note.

It is true that Wylies and Steven remained yet liable to the plaintiff upon the note, but their liability was that of sureties for Robb. (Savage v. Putnam, 32 N. Y. 501.)

The relation between Robb and the other two imposed upon him an obligation of indemnity, and under such circumstances it was the clear right of the plaintiff to look to his estate for the payment of her note. In fact, it was within the power of Wylies and Steven to compel the plaintiff to treat Robb as the principal debtor. (Menke v. Gerbracht, 75 Hun, 181; Colgrove v. Tallman, 67 N. Y. 95 ; Matter of Dawson, 59 Hun, 242.)

If* the severe rule of the common law would discharge the estate of Robb by reason of his death from the joint liability imposed upon him by this note, equity will perpetuate his liability. (Barnes v. Seligman, 55 Hun, 339; Barnes v. Brown, 130 N. Y. 372.)

It must be remembered that this action is upon a joint obligation, and the makers of the note were joint contractors and became joint debtors; the rule of law laid down in the above cases and others is, therefore, applicable.

Moreover, the defendant’s testator had not only become the principal debtor of the plaintiff, but he had by his voluntary action relinquished all claim against Wylies and Steven and the estate of Hunter also. When Wykes and Steven retired from the firm Hunter and Robb remained and assumed the payment of all the liabilities. Then the two latter became liable to pay the note of the plaintiff, and when Hunter’s estate was released by the plaintiff with the assent of the other three, Robb became solely liable for the payment of the note of the plaintiff, without any right of contribution against the other makers.

Under this peculiar state of facts, therefore, the result is that the rule which provides that the estate of a deceased partner cannot be subjected to the payment of partnership debts until after the remedies against surviving partners shall have been exhausted, is. inapplicable to this case.

It remains now to determine the legal effect of the payments of interest upon the note by the testator of the defendant; for without such payments the remedy upon the note would have been barred by the Statute of Limitations.

As we have already observed, payments on account of interest were made by Robb at different times down to 1892, and the testimony brings the case fairly within the recent rule laid down by the Court of Appeals in the case of Crow v. Gleason (141 N. Y. 489).

The payments were made for interest upon the note in suit with the full knowledge that they were to be so applied, and under circumstances which manifest a full recognition of the note as an outstanding unpaid obligation.

The legal effect of a payment of principal or interest is unchanged by the Code of Civil Procedure, and it operates as an acknowledgment of the continued existence of the demand. It is not of itself either a promise or a contract, but it is a deliberate act which constitutes a clear recognition of the existence apd validity of the demand from which a promise to pay the same may be implied. It is an admission that there is a subsisting debt which the debtor is willing to pay. (Shoemaker v. Benedict, 11 N. Y. 185.) The case of Van Kuren v. Parmelee (2 N. Y. 523) has no application to this case, because here the payments were made by the person whose personal representative is sought to be charged.

The judgment should be affirmed, with costs.

Brown, P. J., and Pratt, <L, concurred.

Judgment affirmed, with costs.


author: Dykmax, «I.:

text:
    William Finlayson and Another, Plaintiffs, v. Erastus Wiman, Defendant.

      Interpretation of contracts — questions of fact, when properly decided by the trial judge — remedies of a vendor upon the defaidt of the vendee — after answer the relief dmnanded in the complaint is im/material.

    Where tlic terms of a contract arc ascertained, its meaning presents questions of law only, and it is the duty of the court, and not of the jury, to determine and declare what such meaning is.
    It is only where there is conflicting evidence as to the terms of the agreement, or where extraneous evidence raises some doubt in regard to the subject-matter thereof, that the interpretation of a contract can be submitted to a jury.
    Where the attorney for a party, against whom a verdict was directed upon the trial of an action, made no request for the submission of any question of fact to the jury, he will be deemed to have agreed to the submission of the questions of fact involved in the case to the trial judge.
    Where a vendee has failed to complete his contract to purchase certain property, there are three legal remedies available to the vendor. He may retain the property for the vendee and sue him for the entire purchase price thereof; or he may resell the property and recover the difference between the contract price and the price for which it is sold; or he may keep the property as his own and recover the difference between the contract price and the market value thereof.
    In a litigated case, where an answer has been served, the plaintiff, if ho recovers, is not confined to the relief which he demands in his complaint, but the court is at liberty to award such judgment and grant such relief as ho is entitled to under the evidence.
    Motion by tbe defendant, Erastus Wiman, for a new trial on a .case containing exceptions ordered to be heard at the.General Term in the first instance upon the verdict of a jury in favor of thd plaintiffs, rendered by direction of the court after a trial at the Richmond Circuit on the 26th day of September, 1894.

      Amasa A. Redfield, for the plaintiffs.

      Clinton T. Roe and Edward G. Blade, for the defendant.
   Dykmax, «I.:

This is. an application for judgment upon a verdict of a jury in favor of the plaintiffs, under the direction of the judge that the exceptions should be heard in the first instance at the General Term. The action was brought for the recovery of the purchase money of 325 shares of stock sold by the plaintiffs to the defendant. The complaint in the action alleges that in February, 1888, the plaintiffs and defendant made an agreement, by which the latter undertook to buy from the former the shares of stock mentioned at the price of their par value, which was $32,500; that after the defendant made default in payment under this contract, and after it was rescinded by mutual consent, the parties made another contract in J annary, 1890, by which the defendant agreed to take the same stock at fifty per cent of its. par value, that is, $16,250, with an additional sum equal to five per cent thereof, which was to be paid on the delivery of the certificates. The defendant having made default in that payment, the last agreement was also modified in this respect, to wit, that the purchase price, instead of being payable in one sum, on delivery of the stock certificates, was to be paid by installments, the plaintiffs in the meantime to hold the certificates as security for the due payment of the price agreed upon. The complaint then alleges the defendant’s payment of the first installment of £1,000 under the last modification of the agreement, the readiness and willingness of the plaintiffs to deliver the 325 shares of stock and their tender of the certificates, and the defendant’s refusal to accept the same.

The defendant answered the complaint, and denied specifically the allegations thereof. He also alleged affirmatively, by way of defense and counterclaim, that the offer which was made and accepted was at the price of fifty per cent of the par value thereof, with interest thereon at the rate of five per cent per annum from November 15,1883, payable in installments of one thousand pounds, as he thereafter became able to do so; the stock to be delivered by plaintiffs in lots, as paid for by the defendant; and, further, that the defendant on July 31,1890, paid to the plaintiffs on account of the purchase price one thousand pounds sterling, equivalent to $4,840, and that the plaintiffs failed, neglected and refused to deliver to the defendant the shares which he then became entitled to receive, and that since that time he has been unable to make any other purchases or payments, and then demanded judgment for the $4,840 paid by him, with interest.

The jury, under the direction of the court, found a verdict in favor of the plaintiffs -for the sum of $19,660.95, which was the amount of the purchase money of the stock, with interest, the stock to remain where it was, subject to be delivered on the satisfaction of tbe judgment, and, as we have already said, directed the exceptions to be heard in the first instance at the General Term.

The only exceptions taken by the defendant were to the refusal of the court to dismiss the complaint at the close of the plaiutiffs’ ease, and to the direction of a verdict in favor of the plaintiffs.

The ground of both exceptions is the same, to wit, that no contract was shown. No request was made that any question of fact should be submitted to the jury. There was no conflict of evidence on any issue in the case, as the contract was solely evidenced by the letters and cablegrams of the parties. The questions involved were whether the correspondence disclosed a valid contract, and, if so, whether the terms thereof were those alleged in the complaint, or were, on the other hand, those alleged by the defendant in his affirmative defense and counterclaim. Upon the only point raised by the question whether any contract was shown, the only preliminary proof was the written correspondence of the parties, which was by mail or cable-telegram, as the plaintiffs reside in Glasgow and the defendant in New York city. Only so much of this correspondence is printed in the case as is material to the question of the validity of the exceptions taken by the defendant at the trial.

The letters contained in the record, taken in connection with the admissions of counsel, made for the purpose of the present hearing, disclose the fact that the plaintiffs originally acquired the stock in qirestion by purchase from the defendant, paying him therefor, on November 5, 1893, the price of £3,250, or $16,250 in our currency, which was fifty per cent of the par value. That fact was material in explanation of the context of the correspondence. The mutual' assent of the parties to the agreement of purchase and sale was proven by their written correspondence. The ■ express terms and language of the parties were before the court, over their respective signatures. Their legal effect, and whether they disclosed the assent which is essential to the validity of every contract, were questions of law for the court, which it was the province of the trial court and not the jury to determine. The rule of law on the subject is this: When the terms and language of a contract are ascertained, its meaning and intent present questions of law only, and it is the duty of the court and not of the jury to determine .and declare what it is. (Dwight v. Germania Life Insurance Co., 103 N. Y. 352.)

It is only when there is conflicting evidence as to the terms of the agreement, or where extraneons evidence raises some doubt over the subject-matter of the claims thereunder, that the interpretation of contracts can be submitted to a jury. Independently of this view, however, it is to be stated that the counsel for the defendant made no request for the submission of any question to the jury, and he must, therefore, be considered as agreeing to submit the question of fact to the judge. (Dillon v. Cockcroft, 90 N. Y. 649.)

At the time of the commencement of this action there were three legal remedies which the plaintiffs were at liberty to seek. In the first place, they might have retained the stock for the defendant and sued him for the entire purchase price thereof, or they could have sold the stock and recovered the difference between the contract price and the price for which it was sold, and, third, they could have kept the stock as their own and recovered the difference between the contract'price and its market value. The complaint in this action was framed with the view of obtaining the relief last above mentioned, but in our view it contains sufficient allegations to entitle the plaintiffs to the relief which they actually obtained. In a litigated case where an answer has been served, the plaintiff, if he recovers, is not confined to the relief which he demands in his complaint, but the court is at liberty to award such judgment and such relief as he is entitled to under the evidence, and, therefore, in this case, as the complaint contains sufficient allegations to entitle the plaintiffs to a recovery, it was within the province of the trial judge to afford the relief to which the plaintiff’s were entitled under the evidence, and as the court directed the verdict in favor of the plaintiffs for the amount which was evidently due tinder the modification of the contract, the -stock to remain where it was, subject to be delivered on satisfaction of the judgment, it is evident that justice has been wrought, and there seems to be no necessity for any amendment of the pleadings.

Our view, therefore, is that the exceptions should be overruled, and the judgment should be ordered to be directed in favor of the plaintiffs upon the verdict, with costs.

Pratt, J., concurred; Cullen, J., not sitting.

Exceptions overruled and judgment ordered in favor of the plaintiffs upon the verdict, with costs.


author: Cullen, J.:

text:
    Louis Liebmann and Another v. Liebmann Bros. Company. Lazarus, Rosenfeld & Lehmann, Appellants; John S. McMaster and Another, as Receivers, etc., of Liebmann Bros. Company, Respondents.

      Following the proceeds of consigned property — the burden of tracing the property.

    Consignors of property seeking to recover the proceeds thereof from the receivers of the consignee must follow and trace the proceeds of their property into the receivers’ hands.
    Appeal by the petitioners, Lazarus, Rosenfeld & Lehmann, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of June, 1894, denying the petitioners’ motion for an order directing the respondents to pay to the petitioners the sum of $8,654.09.

      Otto Ilorwitz, for the appellants.

      Jesse Johnson, for the respondents.
   Cullen, J.:

This is an appeal from an order of the Special Term denying the application of the appellants that the receivers of the defendant corporation be directed to pay the petitioners the amount due them from defendant on account of the proceeds of goods consigned to it by the petitioners.

On the record presented to us it would not be profitable to follow the elaborate argument of the counsel for the petitioners as to their rights as consignors, or to discuss the legal principles affecting such rights. The appellants moved on a petition which states in the most general terms that they are informed and believe that the receivers are in possession of moneys, the proceeds of the sale of petitioners’ goods, and that the defendant mixed such moneys with its own, and that to the extent of petitioners’ claim the assets in the hands of the receivers have been increased by such moneys. The affidavits in reply put in issue these allegations, and show that the money turned over to the receivers was but a small sum, which was largely depleted by payment to another consignor. The goods of the petitioners seem in some instances to have been sold on credit, and the credits or claims therefor pledged by the defendant for loans obtaixxed by it. What was the amount of such claixxxs does xxot appear. The petitioxxers submitted in rebuttal axx affidavit of the treasurer of the defendant, that the stock of merchandise txxrned over to the receivers was iix part purchased by the moxxeys received by the defendant from sales under its agx-eexnexit with the petitioxxers, but what part is not stated. This affidavit would be justified, if there had been such a purchase of goods to the axnount of a dollar. On the papers and proofs before the Special Terxn, which are most meager and uncex-tain, xxxore noticeable for what they fail to show thaxx for what they do show, it is impossible for the court to determine or ascertain the facts of -the case, except the amount of the debt of the petitioners axxd the agreement under which the goods .were consigxxed. The applicatioxx was submitted to the court for determination on these papei’S. No request for a reference or further proof seexxxs to have been made. In this state of the proofs we think that the application was properly denied. Conceding, for the arguxnent, the coxxtentioxx of the petitioners of the right to follow the proceeds of their property to its fullest extexxt, it was on them, affirmatively, to trace such proceeds into the hands of the receivers. The proofs do-not show this, but leave the subject in confusion and uncertainty.

The order appealed from should be affirmed, with ten dollars-costs and disbursements.

Pratt and Dykman, JIT., concmred.

Order affirmed, with ten dollars costs and disbursements.


author: Brown, P. J.: Dykman, J.

text:
    Mary M. H. Clark, Respondent, v. Augusta Clark, Appellant, Impleaded with Others.

      Conclusions of 1cm — right to modify the decision — estate in remainder inherited by a husband, — his wife has no dower therein.

    The conclusions of law of the justice before whom a case is tried, in the absence of any exceptions taken thereto by the plaintiff, are the measure of the plaintiff's recovery, and she is not entitled to a judgment awarding her a greater measure of relief.

      A Special Term lias the right to modify its conclusions of law upon the presentation of a referee’s report upon an interlocutory reference, and may award such a judgment as is proper, but if there is no finding of law more favorable to the plaintiff than those contained in the decision, the judgment should conform to the decision and will on an appeal therefrom be modified accordingly.
    A wife acquires no inchoate right of dower in lauds inherited by her husband if they are estates in remainder and not in possession, and she has no rights therein which interfere with her husband in dealing with such estates, and he can subject them to such liens as he may choose.
    A widow’s claim of dower to real estate can only be asserted through her husband’s title thereto, and if the title to the real estate came to him subject to a lien her dower therein is also subject to such lien.
    Where three deeds were given at the same time, and form part of the same transaction, they must be read together and construed with reference to the intention of the parties.
    Dykman, J., dissenting.
    Appeal by the defendant, Augusta Clark, 'from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 25th day of September, 1894, upon the decision of the court, rendered after a trial at the Kings County Special Term and -upon the report of a referee, with notice of an intention to bring up for review upon such appeal said decision, the refusal of the trial justice to make additional findings as requested by the appellant, an order of the Supreme Court made at the Kings County Special Term and entered in the office of the clerk of the county of Orange as of the 26th day of April, 1893, appointing a referee and said referee’s report.

      Walter 0. Anthony, for the appellant.

      Joseph W. Pray, for the respondent.
   Brown, P. J.:

The plaintiff is the widow of George IT. Clark, deceased, and by the judgment appealed from has been awarded dower in the real estate described in the complaint.

George IT. Clark died May 21, 1888, seized of the property in question, and by the answer the right of the plaintiff to dower in the land was not-denied. The defendant set forth in her answer the history of the title to the land from the death of her husband, George Clark, in, 1871, and claimed a lien thereon as security for the payment of one-half the amount of an annuity bequeathed to her by her husband’s will, which lien she asserted took precedence of the plaintiff’s dower, and in her answer she expressly admitted a willingness to consent to the admeasurement of the dower whenever her claim on the land was adjusted and secured.

In the face of the facts set up in the answer and proven upon the trial, and which are not in dispute, I am unable to see the application to the case of the argument of the appellant’s counsel. It may be true, as he claims, that under the will of George Clark, the defendant’s husband, the trust thereby created did not absolutely determine upon the coming of age of the youngest child, but continued during the lifetime of the defendant. Whether such would be the proper construction of the -will with reference to the real estate would depend upon the sufficiency or insufficiency of the personal estate to provide for the defendant’s annuity. But all questions relating to a trust in the estate were eliminated when the parties partitioned the land on February Y, 18S3. Prior to that date the two youngest children of George Clark had become of age, and had died. The only parties interested in the estate were the plaintiff’s husband and his sister, Mrs. Townsend, and the defendant. All estates and interests in the land were vested in these three persons, and they voluntarily entered into and executed an agreement to settle the whole estate. The land in question in this action was conveyed to George II. Clark, and if there was any trust existing therein prior to February Y, 1883, it was destroyed by the conveyance of that date. By the deed then delivered to the plaintiff’s husband, he acquired an absolute estate in fee simple, and the plaintiff, an inchoate right of dower. This settlement also eliminated any question that might arise from the conversion of some of the personal property into land by the foreclosure of mortgages. That question was, in a legal aspect, important to no one except the defendant, but as her annuity was one of the subjects of the settlement by the agreement then executed, she surrendered all claim she had upon the estate, and accepted the personal obligation of her son and daughter for its payment, with such security as the agreement with them gave to her.

In determining this appeal, therefore, we may start from the date of the settlement, and the question presented is not whether the plaintiff has dower in the land; that is a fact beyond dispute, expressly admitted on tlie record. Tlie sole question is, whether her dower is, in whole or in part, subject to any prior lien in favor of the defendant, and we are of the opinion that as to one-half of the land the plaintiff’s dower is the superior estate, but as to the other half it is subject to the defendant’s claim.

The learned judge who heard the case at Special Term found the following conclusions of law:

“ (1) That the plaintiff is entitled to dower, as aforesaid, in the land and premises in the complaint mentioned, and this dower, so far as it applies to land devised absolutely to George II. Clark by his father, is not chargeable with any part of the said seven hundred and fifty dollars annuity to the defendant, Augusta Clark, unless the said defendant first show that there was an insufficiency of personal property, left by the deceased husband of said Augusta Clark, to comply with the provisions of the will of her said husband respecting the payment to her of fifteen hundred dollars per annum.”
“ (3) That by virtue of said will George II. Clark, the plaintiff’s husband, became seized of an undivided fourth part or interest in the real estate whereof said George Clark died seized, and that such interest vested in possession at the instant the youngest child of said George Clark attained the age of twenty-one years.
“ (4) That such interest or share in said real estate continued so vested in said George II. Clark during his marriage with the plaintiff in this action, and her right of dower attached to such interest, and became a vested right at the death of said George II. Clark.
“ (5) That the plaintiff is entitled to dower in the remaining portion of the lands and premises mentioned in the complaint, a life estate in which was sold to the husband of the plaintiff by the defendant, Augusta Clark, but this dower is chargeable with its just and ratable proportion of said seven hundred and fifty dollars annuity.
“(6) That the right of the defendant, Augusta Clark, to her annuity continues from year to year, and whatever has not been paid her in one year should be made up afterwards, and the referee to take and state the account should ascertain and report the amount of such arrearages.”

And, ’amplifying these findings, in his opinion he stated : “ The plaintiff is, therefore, entitled to recover dower in the undivided fourth that her husband inherited from his father, and this dower is. not chargeable with any part of the annuity to the widow under the will, unless the defendant first shows the insufficiency of the personalty to satisfy that annuity.

“ The remaining interest in the realty of which plaintiff’s husband died seized was acquired by inheritance, or by deed from his brother and sister and mother. In that share, till the mother’s deed, there was always an outstanding life estate in the mother; and hence till then there never was seizin in the husband or dower in his wife. But the deed from the mother expressly charges the annuity on the real estate conveyed or released. Therefore, whatever was the effect of the will, this share acquired by this deed must bear its proportion of the annuity. The husband’s only right in such share being in remainder, he could subject it to whatever liens he saw fit, regardless of the claims of the plaintiff.”

The plaintiff took no exception to these conclusions, and it is very obvious, therefore, that they measure the right of her recovery, and she was not entitled to a judgment that awarded to her a greater measure of relief.

A reference was ordered to ascertain the value of the land, and to compute the value of the plaintiff’s dower, and the damages for withholding the same, and other matters of fact, of which it was necessary that the court should be informed before a judgment could be granted, and, upon the coming in of the referee’s report, judgment was entered, which adjudged that the plaintiff, as widow of George II. Clark, is entitled to dower in all the real estate described in the complaint, * * * and that said dower is entitled to precedence over all claims of defendant, Augusta Clark, in or to said real estate, or any part thereof.”

By reference to the opinion of the learned judge, filed upon entering this judgment, the judgment appears to be based upon the conclusion that the referee had found that the plaintiff’s claim took prec edence over the defendant’s claim, and was a first lien not only upon the estate which plaintiff’s husband had acquired from his father, but upon all the remaining interests which he had acquired otherwise ; and that as there was personal property left by George Clark sufficient to provide for the defendant’s annuity, she had no claim therefor upon any part of the lands which was superior to the plaintiff’s dower.

I am unable to find in tlie referee’s report any finding tbat tbe dower was prior to tlie annuity. No question of that kind was referred, and such a determination was directly opposed to the findings of the court, which I have already quoted.

The defendant excepted to the conclusions I have quoted, with the exception of the sixth, and the question of the rights of the parties is, therefore, properly before us.

The Special Term undoubtedly had the right to modify its conclusions upon the presentation of the referee’s report and award such a judgment as was proper, but, as the case stands, there is no finding of law more favorable to the plaintiff than those quoted, and, in the absence of any, the judgment should conform to the decision -and be modified accordingly. "We think, however, that the court was right in its first decision, and that the findings quoted correctly expressed the law applicable to the facts proven.

The plaintiff was married to George II. Clark in 1879. At that time he was possessed of an estate in the lands' in question of a one undivided one-quarter, which he had acquired under his father’s will. That estate was unincumbered, except by the provisions of his father’s will, which created the defendant’s annuity, and whether that created an incumbrance thereon depended upon the insufficiency of tlie personal property to provide for tlie payment of the annuity. The referee has found that there was sufficient personal estate to provide for the defendant’s claim, and that conclusion has ample support in evidence. As to that share, therefore, plaintiff established the priority of her claim. At the time of the plaintiff’s marriage, her husband had other estates in tlie land amounting to an undivided one-quarter, which he had inherited from his deceased brother and sister, but they were estates in remainder, and not in possession, and plaintiff acquired no inchoate right of dower therein. She liad no rights therein which interfered with her husband in dealing with those estates, and he could subject them to such lien as he chose. On February 7, 1883, the parties made a settlement of the estate. The rights of the several parties in and to the lands owned by them were, at that date, as follows :

George H. Clark had an estate in fee simple in an undivided one-quarter, subject to the inchoate dower of the plaintiff, his wife, and an estate in remainder in an undivided quarter subject to the life estate of the defendant, his mother. Mary A. Townsend had similar estates in the land, one-quarter being subject to the marital rights of her husband, and the other to the life estate of the defendant. The defendant had a life estate in an undivided one-half of the lands, which she had acquired from her deceased children, and she had a claim upon the entire estate for the annuity under her husband’s will of $1,500.

The executors of the estate of George Clark and Mr. and Mrs. Townsend conveyed the premises described in the complaint to George H. Clark, and other land was conveyed by the said executors and plaintiff and her husband to Mrs. Townsend. These conveyances expressed as a consideration the settlement and division of the estate and property ” of George Clark, and each contained the following provision:

“ This conveyance does not release or extinguish the lien of Augusta Clark on said lands from the payment of the annuity provided for and directed to be paid to her by the will of said George Clark, deceased.”

At the same time George H. Clark, Mrs. Townsend and the defendant executed a deed, which, after reciting (1) that the defendant was entitled to an annuity of $1,500 pursuant to the will of George Clark, and to have so much of the property of said George Clark set apart as would produce such annuity, (2) the settlement and division of the estate in consideration thereof, provided that defendant would receive one-half of said annuity from George H. Clark and one-half from Mrs. Townsend, and that she should have a lien as security for the payment of said sum “ upon the respective portions of real estate and property of said George Ii. Clark and Mary A. Townsend, inherited from their father and divided by this settlement.” It further provided for the enforcement of payment of the annuity in case of default, and the transfer of defendant’s right, title and interest in the property to said George H. and Mary for the sum of $5,000.

These three instruments must be read together and construed with reference to the intent of the parties, and so read it is plain that the purpose was to substitute for the rights which defendant had under the will of George Clark, her husband, the personal obligation of her son and daughter to each pay one-half of the annuity and to secure sucli obligation by a lien upon the lands conveyed to each. That was a valid agreement, and the lien was enforcible against the plaintiff’s husband. It was in the nature of a purchase-money mortgage, and the plaintiff’s rights are subject to it. Iler claim to dower can only be asserted through her husband’s title, and as that title came to him subject to the lien, her dower is subject to it also.

Such, undoubtedly, was the effect of the agreement upon the undivided one-half of the property in which the defendant had a life estate, and such, in our opinion, was its effect on the undivided one-quarter owned in fee by Mrs. Townsend.

It was a part of the consideration of the conveyance of the defendant’s interest in the land that she should have a lien on all the lancU which was divided by the settlement, and the only thing which postponed the lien of the annuity to the plaintiff’s dower in the'share which George H. Clark acquired under his father’s will, is • that the plaintiff executed no paper on the settlement which deprived her of her dower in that share. The only paper executed-by her was the deed to Mrs. Townsend. She is not a party to any i instrument affecting any of the land described in the complaint, and consequently cannot be deemed to have released a dower right acquired previous to the settlement. But as to the land acquired by the deed of February seventh, her dower is subject to the lien then created as security for defendant’s annuity.

The land described in the complaint now stands for all the undivided shares which George H. Clark had or acquired in his father’s estate, either by the will or the deed of February seventh, and it follows that as to one-lialf of that land plaintiff’s dower is the superior estate, and, as to the other half, it is subject to the lien of one-half of the defendant’s annuity.

The judgment should, therefore, be modified and drawn in accordance with sections 1622, 1623 and 1624 of the Code of Civil Procedure. The amount of damages for withholding plaintiff’s dower should be reduced to $1,097.89. The property should be sold by the referee, discharged from the defendant’s lien, and he should make a report of the sale as required by section 1623 of the Code of Civil Procedure. Upon the confirmation of such report, if the defendant elects to accept a gross sum in lieu of her annuity, the court should ascertain the sum that would equal the value of the annuity, and one-half thereof should be paid to her. The gross sum that would be eqt^al to the value of the plaintiff’s dower should then be ascertained and paid to her, and the balance remaining should be paid to the defendant. In case the defendant does not elect to receive such a gross sum, then a sum sufficient to produce, at five per cent interest, an annuity of $375, should be set apart from the proceeds of the sale and invested under the direction of the court, and the income paid to defendant during her life. The gross sum that would equal the value of plaintiff’s dower in said sum so set apart, and also in the balance of the proceeds, should then be ascertained. The latter sum should be paid to the plaintiff forthwith, and the former on the death of the defendant. The balance of the proceeds should be paid to the defendant.

So modified, the judgment should be affirmed, without costs of appeal.

Pratt, J., concurred.

Dykman, J.

(dissenting):

The case shows that George Clark, a resident of Orange county, died in 1871, leaving real and personal estate, and leaving a last will and testament. The testator left four children and a widow, the appellant herein. Py the terms of the will his widow was given a life estate in the homestead, and the residue of the estate, real and personal, was given to his executors, as follows:

T Mrd. I give, devise and bequeath unto my executrix and execu tors all the rest, residue and remainder of my estate, real and per sonal, so long as my youngest child shall live, but not after the majority of such child shall be reached ; upon trust to take charge and possession of the same, and to collect and receive the rents, issues and profits of the realty, and the principal, profits and increase of the personalty, and to invest, manage, expend and control the same as they may deem best; and out of the rents, issues, increase and profits thereof to pay to my wife the sum of one thousand and five hundred dollars per year, in half-yearly payments, commencing immediately after my decease, in addition to the property now occupied as my residence, and then out of the residue of such rents, issues and profits to make such advances to my children, or to expend for them, respectively, such moneys as may be necessary and proper for their support and education, and for their settlement in life or advancement in business.
If such rents, issues and profits shall prove insufficient therefor, such deficiency shall be supplied out of the principal of the said personalty.
“ Upon the death or majority of my youngest child, during the life of my wife, so much of my property shall be set apart as will produce an annual income of one thousand and five hundred dollars, which be paid to my wife during her life in half-yearly payments; and tlie rest, residue and remainder of my estate shall be divided among my children, viz.: Mary Augusta, George Horatio, Martha Louisa and Robert Sterling, so that such advances and support as they may respectively have had, as hereinbefore directed, shall make equality of partition among them.
“ The provision hereinbefore made for my wife is intended to be in lieu of her dower and distributive share of my estate.”

The youngest child of testator was Robert S. Clark, who became twenty-one years of age in 1876. The executors did not then set apart so much of the testator’s property as would produce an annual income of $1,500 for the testator’s wife, and very soon great changes were made in the title to the estate. The' youngest child died within a few months after arriving at his majority. He left a will by which he gave his mother, the defendant, the use of his share in his father’s estate for life, with remainder to his brother and sisters. Within a year subsequent to the death of the youngest child, another of the children, a girl, died intestate and without children, and thus her share descended to her mother, brother and sister, as provided by law. The entire estate became thus vested in George H. Clark and his sister, Mrs. Townsend, subject tó the rights of their mother. In 1879 George H. Clark married the plaintiff, and on the 7th of February, 1883, the parties, by their several conveyances and agreements, changed the whole situation. The executors of George Clark and Mrs. Townsend and her husband conveyed what was accepted as one-half of the real estate to George H. Clark, and the executors, at the same time, by a deed in which George H. Clark and his wife joined, granted the other part of the real estate to Mrs. Townsend. Each of the deeds reserved the defendant’s rights as follows: “ Tliis conveyance does not release or extinguish the lien of Augusta Clark on said lands from the payment of the annuity provided for and directed to be paid to her by the will of said George Clark, deceased.”

On the same day the defendant, reciting that the children had divided the estate and property of their father between them, agreed that she wouid receive one-half the annuity from each of them, and that she should have a lien as security for the payment of the same upon the respective portions of real estate and property of said George ,H. Clark and Mary A. Townsend inherited from their father and divided by this settlement, for the punctual and faithful performance on their part of this agreement, and the payment by each of them of said sum of seven hundred and fifty dollars per year, in the manner, at the time or periods of time required by said will.”

The case shows that within a few weeks after the execution of these deeds the estate was finally settled by' the surrogate of Orange county, and the executors were discharged from their duties under the will.

Under this arrangement each of these parts of the land conveyed to George H. Clark and to his sister became severally chargeable with the payment of $750 to the defendant yearly. The direction to set apart a fund sufficient to produce the sum became inoperative, and by the agreement of all parties interested, including plaintiff and defendant, the annuity was payable out of the land. In 1888 George H. Clark died and left all his property to his mother, the defendant, by will. She has not been able from the use of the land to realize the amount of her annuity from it. The plaintiff’s claim is not superior to the payment of the balance unpaid nor is it superior to the payment of the annuity in the future. The plaintiff was given by devise from her son a title charged with the payment of an annuity of $750. ITis personal estate had nothing to do with it. The land was mortgaged and the defendant is entitled to her security upon it.

, The judgment should be reversed and a new trial granted, costs to abide event.

Judgment modified and as modified affirmed, without costs.


text:
    The Farmers’ Loan and Trust Company, as Trustee, Plaintiff, v. The Equity Gas Light Company of the Eastern District of the City of Brooklyn and Others, Defendants.

      Purchase-money mortgage given by a corporation — valid, though given without the consent of the stockholders.

    A purchase-money mortgage may be issued by a corporation without the consent of its stockholders.
    Courts of equity will not permit a corporation to retain property, with all the benefits derived from its purchase, and at the same time to repudiate its liability for the purchase price thereof or its liability under a mortgage given to secure the purchase price.
    Motion by the defendant, The Equity Gas Light Company of the Eastern District of the City of Brooklyn, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance after a trial at the .Kings County Special Term on the 8th day of October, 1894.

      David McOlttre, for the plaintiff.
    Tracy, Boardmcm da Platt, for the defendant, The Equity Gas Light Company of the Eastern District of the City of Brooklyn.
   Dykman, J.:

This is a motion for a new trial made in the first instance at the General Term under the provisions of section 1001 of the Code of Civil Procedure. The action was brought by the plaintiff as trustee under a mortgage made to it by the defendant, dated July 1, 1891, and a supplemental mortgage dated December 8, 1891, given to secure the issue of bonds of the defendant aggregating $1,000,000.

The defendant was incorporated in the month of January, 1874, under the act of February 16, 1848, being chapter 37 of the Laws of 1848, as amended by subsequent acts. On the 18th day of November, 1890, the defendant gas company entered into-a construction contract with the Equity Gas ~Works Construction Company. The contract provided, among other things, that the construction company should convey to the gas light company a plot of land in the city of Brooklyn upon which it should erect gas tanks, engines, engine houses, coal sheds, and should lay mains and furnish tools, etc., and. in return therefor the defendant gas company should execute a mortgage to the Farmers’ Loan and Trust Company to secure the sum of $1,000,000 and deliver bonds secured thereby to the construction company to that amount, and should also deliver to the construction company $1,000,000 of its capital stock. Such stock at the time of the contract amounted to $2,000,000, and the defendant gas company had under its control the sum of $1,900,000 of such capital stock. It agreed by such contract, among other things, that it would not issue the remaining $100,000 until the completion of the contract. It appeared from the evidence upon the trial that work was immediately commenced under the contract, agreements were entered into with sub-contractors for the performance of the work, and a large amount of money was expended day by day; that the work was pushed on with great energy and finally completed so far as the gas light company permitted such completion. The .deed of the real property was made and delivered to the defendant gas company by the construction company and was offered in evidence upon the trial. It appeared that all the property covered by this mortgage was transferred by the construction company to the gas light company. In pursuance of the contract the defendant made a mortgage to the Farmers’ Loan and Trust Company, dated July 1, 1891, for $1,000,000, and the bonds secured by that mortgage, being the entire issue, have been certified and delivered to the plaintiff as follows: $750,000 of them directly to the construction company and $250,000 of them to Trask, who is, and was at the time, the president of the gas light company. The other bondholders have raised some question as to the right of Trask, and insist that those bonds are not entitled to the security of the mortgage in question, and in framing the judgment entered herein provision has been made to decide whether these bonds are entitled to the lieu of the mortgage.

There are many reasons why this motion should not prevail, and why the judgment should be affirmed. The mortgage in question is a purchase-money mortgage, and such mortgages may be issued by colorations, without the consent of stockholders. The property covered by the mortgage was conveyed to the gas light company by the construction company, under an agreement that the mortgage should be executed and the bonds- issued and delivered to the latter company. That agreement was made before the statute of 1890 (Chap. 564) went into effect, which requires the assent of stockholders to the issuance of a mortgage, and that statute is, therefore, inapplicable to this case.

Moreover, a court of equity will not permit the successful interposition of the defense here attempted, even assuming all that is claimed by way of defense to this action. No court will permit the defendant to retain the vast property it occupies, with* all the benefits of its purchase, and at the same time repudiate its liability for the purchase price, or, what is the same thing, its liability under the mortgage in question.

The motion should be denied, with costs.

Brown, P. J\, concurred.

Motion denied, with costs.


text:
    Mary A. Corbett, as Administratrix, etc., of Thomas Corbett, Deceased, Appellant, v. The Brooklyn, Bath and West End Railroad Company, Respondent.

      ■Negligence —proof as to, where no one witnessed the accident.

    In an action brought to recover damages resulting from the death of the plaintiff’s intestate by reason of the alleged negligence of the defendant, no one testified who had witnessed the accident which resulted in the death of the plain-' tiff’s intestate, and there was no proof from which any inference could be drawn respecting the manner in which the deceased met his death, further than that he was killed outside of a train and between a platform and one of the cars on the defendant’s railroad. •

      Held, that there was no proof of negligence on the part of such railroad company, and that there could be no recovery against it.
    Appeal by the plaintiff, Mary A. Corbett, as administratrix, etc., of Thomas Corbett, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 23d day of August, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Kings County Circuit.

      Thomas F. Magner, for the appellant.

      Morris & Whitehouse, for the respondent.
   Dykman, J.:

This is an appeal from a judgment dismissing the plaintiff’s complaint.

The action was brought to recover damages resulting from the death of Thomas Corbett, the plaintiff’s intestate.

The deceased was killed at the Coney Island station on the defendant’s road.

No one witnessed the occurrence, and there is no proof from which any inference can be drawn respecting the manner in which the deceased met his death further than that lie was killed outside of the train and between the platform and one of the cars.

There is no proof of negligence on the part of the company, and under such circumstances there .can be no recovery.

The judgment should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


author: Brown, P. J.:

text:
    The First National Bank of the City of Brooklyn, Respondent, v. William T. Wallis and Another, Appellants, Impleaded with Others.

      Promissory note — signed with individual names followed respectively by “ Prest." and “Treas.” — the liability is individual and not corporate — election of remedies — several liability on a contract — a recovery against one debtor not a discharge to his co-debtors.

    When a promissory note is signed by two individuals as makers, and after their respective names the words “Prest.” and “Treas.” are respectively written, the note is an individual obligation of the persons signing tlie same, and not that of the corporation of which they are president and treasurer respectively, although the name of such corporation be printed on the margin of the paper upon which the note was written, if there is nothing in the body of the note to indicate that it is a note of the corporation.
    The fact that the holder of such a note brings an action thereon, and recovers judgment thereon against the corporation, does not estop him from maintaining an action thereon against the individuals who signed the note.
    When a party has sufficient grounds to enable him to bring different actions, arising out of the same state of facts, against either of two different persons, and the maintenance of one action necessitates the allegation of a fact inconsistent with the maintenance of the other, he is bound, having brought an action .against one party, by his election and cannot proceed against the other party, although the judgment obtained in the first action fails to afford relief.
    As to all that class of actions which come under the head of torts, the rule is established that one tort feasor is not discharged by an action or judgment against his co-tort feasors; nothing short of satisfaction for the injury will relieve all the wrongdoers from liability. The same rule is applicable to contracts; if two or more persons are severally liable for the same debt, the payment of the debt alone discharges the debtor, and the maintenance of an action ■and a z'ecovery against one does not debar the creditor from suing in a separate action the other parties liable for the same debt.
    Appeal by the defendants, William T. Wallis and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of July, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 24th day of July, 1894, denying the defendants’ motion for a new trial made upon the minutes.

      Henry Orofut White, for the appellants.

      Joseph A. Burr, for the respondent.
   Brown, P. J.:

This action was brought to recover against the appellants individually upon a promissory note, indorsed to the respondent by H. Stuetzer & Co., of which the following- is a copy:

“ $1,500. Jersey City, N. J., Deo. 2, 1892.
% ^ ^ 'I f
“ Three months after date we promise to pay to the order of II. Stuetzer & Co., Fifteen hundred & Dollars, payable at First National Bank of Jersey City. Yalue Received.
“ WM. T. WALLIS, Prest.
“No. 1027. GEO. T. SMITH, TreasP
(Indorsed): “Pay First Nat’l Bank, Brooklyn, or. order, H. Stuetzer & Co.”

The note was given to Stuetzer & Go. for- work done for the Wallis Iron Works, of which corporation the appellant Wallis was the president and the appellant Smith the treasurer.

Shortly after the maturity of the note, the bank sued the Wallis Iron Works thereon, and judgment was entered against said corporation by default.

Nothing was collected on said judgment, and, before the commencement of this action, it was, by an order of the court, vacated and the action was discontinued.

The note was discounted for the benefit of and upon the credit of Stuetzer & Co., and, at the time of discounting it, the bank had no knowledge of the circumstances surrounding its execution and delivery, or what it was given for, but the president of the bank testified that he supposed it was the note of the Wallis Iron Works.

In another action this court decided upon the same facts that a note between the same parties was, on its face, the obligation of the ajipellants, and not of the Wallis Iron Works. (First National Bank v. Stuetzer, 80 Hun, 435.)

That decision rested upon the authority of the case of The Casco National Bank v. Clark (139 N. Y. 307), from which it appears impossible to distinguish it. .

The appellants now claim, however, that by suing the Wallis Iron Works the respondent exercised a right of election between inconsistent remedies, and is, therefore, barred from maintaining this action against the appellants.

The general rule is well settled that when a party has grounds to bring different actions arising out of the same state of facts against different persons, and the maintenance of one necessitates the alleT gation of a fact inconsistent with the maintenance of another, he is bound by his election, and cannot proceed against the other, although the judgment obtained in the first action fails to afford relief.

But after a careful examination of the numerous cases cited in the appellants’ brief, I have failed to find one that holds that when two or more persons are severally liable to another, by suing one the creditor thereby discharges all the others.

The rule is established as to all that class of actions which come under the head of torts, that one tort feasor is not discharged by an action against his co-tort feasor. Nothing short of satisfaction for the injury will relieve all the wrongdoers from liability. (Livingston v. Bishop, 1 Johns. 290.)

The same rule is applicable to contracts. If two or more persons are severally liable for the same debt, payment of the debt alone discharges the debtor, and the maintenance of an action and recovery of a judgment against one does not debar the créditor from suing in a separate action others liable for the same debt.

In Beymer v. Bonsall (79 Penn. St. 298) it was held'that neither the -agent nor principal, when both were liable, would be discharged short of satisfaction of the debt. This case was cited with approval in Cobb v. Knapp (71 N. Y. 348), the chief judge saying that the commencement of an action against the principal would not be conclusive of an election by the creditor to hold him responsible only.

These authorities sustain the judgment appealed from, and it must be affirmed-, with costs.

Pratt and Dykman, JJ., concurred.

Judgment and order affirmed, with costs.