text:
    HIRAM ALLEN, et al., Respondents, v. THE ST. LOUIS INSURANCE CO., Appellant.

      Marine insurance—construction of policy—effect of agent's approval of manner of lading.

    The policy in question purported to be an open and uniform canal cargo policy, and insured the several persons whose names were entered in the book containing it, which remained in the possession of the insurer. The plaintiffs’ names, the name of the boat, the voyage, property insured, amount of insurance, rate, &c., were duly entered in said book, and a certificate issued to plaintiffs, stating that they were insured according to the terms of said policy, “ in- - board cargo boat, W. S. Alden, ” &c. The policy provided that the company should not be liable, unless by special agreement indorsed thereon, for damage to goods on deck; but also provided that it should be lawful for said boats to load in such manner as is customary in such navigation, without regard to marine law or custom applicable to sea voyages, and that the company would make good all loss or damage on goods so laden as aforesaid.
    While on the voyage a portion of the cargo, laden on deck, was washed ■ overboard and greatly injured.
    No special agreement permitting lading on deck was proven, but it appeared that the boat was laden according to custom in canal navigation, and that the authorized agent of the company examined her when about to start, and approved the mode of lading.

      Held, that the certificate and policy should be construed together and against defendant, the insurer; that “ inboard ” is used in contradistinction to “ outboard,” and means not projecting over the rail of the vessel; that upon the whole case the conclusion is that the policy attached to the goods which were injured; that in any event the defendant was bound by the approval of its agent.
    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.
    Appeal from judgment entered upon the verdict of a jury, and from order denying motion for new trial.

      The action was brought upon a policy of insurance whereby the defendant insured Allen Brothers against loss or damage to a cargo of paper upon the canal boat W. S. Alden, on a voyage from Troy, N. Y., to Philadelphia, Pa. The boat was towed to New York, and went alongside a certain pier in the North River. While there, the sea being heavy, the swell of a steamboat rolled her so that she spilled a part of the paper which was on her deck. The loss was thereby occasioned.
    No special agreement permitting lading on deck was proven.
    The defendant defended on the ground that the policy did not cover goods carried on deck.
    Upon the trial the defendant offered no testimony, but at the .close of the plaintiff’s case defendant’s counsel moved to dismiss the complaint upon the ground:

      First. That it was not shown that the plaintiffs were partners.

      Second. That it was not shown that the policy covered, the property lost.
    The motion was denied and defendant excepted.
    At défendant’s request the court submitted to the jury the question whether or not the loss was caused by carelessness on the part of those who had charge of the boat.
    The jury found for the plaintiffs.
    Defendant then moved for a new trial on the judge’s minutes, which motion was denied.
    Judgment having been entered, the defendant appealed from the judgment, and also from the order denying the motion for a new trial.
    The facts further appear in the opinion of the court.

      E. M. Neville, attorney, and George M. Curtis, of counsel, for appellant, urged :
    I. Groods laden on deck are not covered by a policy of insurance unless expressly mentioned (Lennox v. United States Ins. Co., 3 Johns. Cas. 178 ; 2 Philips Ins. 169 et seq.).

    II. The condition of the policy was not complied with. There was no waiver of the condition. The policy is void. One of the conditions of the policy was as follows: “ It is also agreed that the company shall not be liable for any loss or damage to box or bundle, railroad iron or hoop iron, unless total; nor for goods or property on deck, unless by special agreement in writing indorsed on their policy” (Rohrback v. Germania Fire Ins. Co., 62 N. Y. 47; Matson v. Farm Buildings Ins. Co., 73 Id. 310).
    III. The insurers assuming risks which the insured is unwilling to bear can only be held to those risks for which they have voluntarily anil knowingly undertaken, and the insured has no right to substitute any other (2 Parsons on Ins. 2; Hartley v. Buggins, 3 Dougl. 39 ; Maryland Ins. Co. v. Le Roy, 7 Cranch. 26). If the defendants were to be made answerable for the property on deck it would be holding it to a responsibility not considered and for which no compensation was given (Blockett v. Royal Exch. Ins. Co., 2 Crompt. &Jer. 250).
    IV. To entitle the plaintiff to a recovery it was necessary for them to show that it was usual for underwriters to pay for goods lost when carried on deck (Taunton Copper Co. v. Merchants’ Ins. Co., 22 Pick. 108). .
    V. The mere fact of unusual stowage by the insured of goods in a marine policy avoids the policy, if not known and assented to by the insurer (Leitch y. Atlantic Mut. Ins. Co., 66 N. Y. 100; Merchants’ Ins. Co. v. Alger, 32 Penn. 330; Blocket v. Assurance Co., 2 Crompt. & Jer. 250 ; Atkinson v. Gt. W. Co., 4 Daly, 207; Da Costa v. Edmonds, 4 Campb. 142; Taunton Copper Co. v. Mer. Ins. Co., 22 Pick. 108 ; Mar shall on Ins. 348, 349 ; The Delaware, 14 Wall. 579, 602).

      Man & Parsons, attorneys, and John E. Parsons, of counsel, for respondents, urged :
    I. “ Inboard ” is used in contrast to “ outboard it means cargo not projecting outside the rail of the vessel, and does not mean under deck. The policy is general; permits any mode of lading usual in canal navigation, and expressly provides that the rules applicable to ordinary marine policies shall not apply. If the defendants designed to vary the policy by the certificate, they should have done so in direct and clear terms. The certificate and the policy are to be construed together and against the defendants (McMaster v. Pres., &c. Ins. Co. of N. A., 55 N. Y. 222 ; Rann v. Home Ins. Co., 59 Id. 387; Love v. Pares, 13 East, 80 ; Doe v. Dodd, 5 B. & Ad. 689 ; Dow v. Whetten, 8 Wend. 160 ; Yeuton v. Fry, 5 Cranch, 335).
    II. The agents having approved the mode of lading, the defendants cannot now be heard to claim, that, by reason of the manner in which the paper was loaded, the policy did not apply (Shearman v. Niagara Fire Ins. Co., 46 N. Y. 526; Carroll v. Charter Oak Ins. Co., 38 Bart. 402; Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117 ; Trustees First Baptist Ch. v. Brooklyn Fire Ins. Co., 19 Id. 305 ; Sheldon v. Atlantic F. & M. Ins. Co., 26 Id. 460 ; Van Schoick v. Niagara Ins. Co., 68 Id. 434).
   By the Court.—Freedman, J.

There is substantially but one question involved in the appeal which deserves special notice, and that is whether the policy covered the injured property, laden, as it was, on the deck of the boat.

A general description does not, except under special circumstances, cover articles carried upon deck. The articles so stowed are thereby put out of the protection of the policy, unless their being carried in this way is provided for in the policy, or indicated by the description of the article itself in the policy, or justified by the usage of the specified trade (Phillips on Ins. 5 ed. § 460).

Where the article specified in the policy is uniformly so carried, or obviously must from its character be so, for its own safety1 or that of the ship, cargo and crew, the policy will attach to it, so carried, by the merely naming of it and describing the voyage (75.).

But whether the policy attaches to an article on deck that is merely named, without any express intimation in the policy that it is to be. so carried, where articles of the same kind are not necessarily or uniformly so stowed, but sometimes go on deck, and sometimes under, according to the quantity' and kind of cargo, is a question on which, as Mr. Phillips puts it, the jurisprudence is wavering and inconsistent.

The policy in question was a general policy, insuring the persons whose names were indorsed or entered in a book kept for the- purpose. It purported to be an open and uniform canal cargo policy, and remained in the possession of the defendant, until produced by it at the trial, upon the call of the plaintiffs. It was bound up in book form, with ruled leaves of paper following, upon which to make a note of statements of risks. It provided that the company should not be liable for damage to goods or property on deck, unless by special agreement in writing indorsed on the policy. But it also provided that it should be lawful for the boats insured or carrying insured goods or property, to load in such a manner as is usual and customary for vessels employed in such navigation to be laden ; without reference to any provisions on the same subject by marine law or custom applicable to vessels laden for sea-voyages ; and that the company would make good and satisfy unto the said insured, all such loss or damage on the said goods, wares, merchandise and country produce, so laden as aforesaid, &c., &c.

The risk in question was entered in the following words :

The certificate issued to the plaintiffs ran as follows :

“$9,000. No. 335.

CANAL CARGO CERTIFICATE. Incorporated 1837. THE ST. LOUIS INSURANCE COMPANY, OF ST. LOUIS, MO.

Cash assets over $350,000.

“This certifies that Allen Brothers insured under and subject to the conditions of open Policy No. 387, issued by. the St. Louis Insurance Company of St. Louis, in the sum of nine thousand dollars, inboard cargo of boat W. S. Alden.

“ On paper $9,000, at and from Troy, N. Y., to Philadelphia.
“$ at and from to
“Loss, if any, payable to themselves or order on return of this certificate.
“ J. B. S. LEMOINS, President.
“ JAMES D. HOUSEMAN, Secretary.
“This certificate of insurance is not valid unless countersigned by the authorized agent of the company at Troy, N. Y.
“NEHER & CALDER, Agent. '
“Troy, N. Y., October 12, 1876.
9,000-^46—36.00.”

. This certificate and the policy are to be construed together and against the defendant. “Inboard” is used in contrast to “outboard.” It does not necessarily mean under deck, but seems to mean a cargo not projecting over the rail of the vessel. No evidence explanatory of its meaning was given or offered at the trial. Under all the circumstances it is therefore but fáir to hold, and especially as the policy was general and permitted any mode of lading usual in canal navigation, and expressly provided that the rules applicable to ordinary marine policies Should not apply, that if the defendant intended by the certificate to limit the insurance to the cargo under deck, it should have said so in clear terms.

The paper was taken on board the Alden at Troy. About sixty tons were on deck, stowed inside of the rail about six inches. It was protected by tarpaulins tied down on both sides, and according to the proof it” was carefully laden in the manner usual and customary for vessels employed in the navigation in which the Alden was engaged.

Upon the whole case the conclusion seems irresistible that the policy attached to the goods which were injured. But if any doubt could still exist, such doubt has been wholly removed by the further proof which was given, that the authorized "agents of the defendant at Troy were informed how the paper was laden and secured, and that there was a portion on deck ; that they were requested to come and look at it, and that they said they thought it was all'right. This being an approval of the mode of lading, in consequence of which the boat proceeded on her voyage, the defendant’s present claim that, by reason of the manner in which the paper was stowed, the policy did not attach' to the injured goods, is both unreasonable and untenable.

As to the question of plaintiff’s partnership it is sufficient to say that the proof upon the point, uncontradicted as it stands, is sufficient.

The judgment and order should be affirmed, with costs.

Sedg-wiok, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    FREDERICK A. POTTS, Respondent, v. ISAAC MAYER, Impleaded, &c., Appellant.

      Evidence—Oode of Civil Procedure, § 829.
    When the testimony of a deceased party to a former action, given in said action, is read upon the trial of a subsequent action by a party thereto (Code Civ. Pro. § 830), the case does not fall within the saving clause to section 829 of Code of Civil Procedure. The said party to the subsequent action is precluded from testifying as to the matters contained, in said testimony, so far as specified in said section 829.
    Before Sedg-wiok and Freeman, JJ.

      Decided April 5, 1880.
    Appeal from judgment. The facts appear in the opinion.

      Benj. F. Carpenter, attorney, and Payson Merrill, of counsel, for appellant.

      Richard S. Newcombe, attorney, and Albert Cardozo, of counsel, for respondent.
   By the Court.—Freedman, J.

The action was brought against the defendant Isaac Mayer, on a note made and indorsed by the firm of Hyman & Mayer, of which said defendant was at the time a member. It was conceded on the trial that the plaintiff stands in no better position than Kohn, from whom the plaintiff derived title, would have stood, if Kohn had brought the action as indorser. But the production by the plaintiff on the trial of the note indorsed to him, prima facie" established his title to and interest in the note, and entitled him to a recovery under the decision of this court in Freeman v. Falconer (45 Super. Ct. 383).

The court therefore properly directed a verdict, unless sufficient evidence was given of an affirmative defense to carry the case to the jury.

Upon this point the defendant, Mayer, held the affirmative of the issue, and to prove the diversion of the note by Kohn, he read the testimony of his former co-defendant, Hyman, as that of a witness who had died since the former trial, and the said testimony showed not only a diversion, but also that Hyman had paid Mayer value for the note. The latter fact therefore neutralized the former. Mayer then, offered to testify that Hyman’s testimony as to payment of value was not true, and his testimony offered upon this point was excluded. There was no error in this ruling. • It being conceded that the note had, with Mayer’s assent, been executed, indorsed and delivered by Hyman, the proposed testimony was incompetent under section 829 of the Code of Civil Procedure, which prescribes that a party to an action, or a person interested in the event, shall not be examined, as a witness, in his own behalf or interest, against a person deriving his title or interest from, through, or under a deceased person by assignment or otherwise, concerning a personal transaction or- communication between the witness and the deceased person. Nor did the testimony come within, the saving clause of that section, because Hyman was Mayer’s own witness. The exception made by that clause would have applied only if the plaintiff, upon the said question of value, had been examined in his own behalf, or had read the testimony of Hyman as part of his case.

The defendant having failed in his defense, the judgment should be affirmed, with costs.

Sedgwick, J., concurred.


text:
    FRANCIS A. ROBBINS, Respondent, v. HENRY F. PULTZS, Appellant.

      Attorney and client—Evidence.

    In an action brought by a client against her attorney, to recover moneys alleged to be wrongfully detained by him, the main fa¿t at issue was whether a certain sum of money was paid by her to the attorney in satisfaction of his charges for services, &c., or whether the said sum was delivered t.o him upon the understanding that part thereof was to be received in full satisfaction of his said charges, and the remainder to be used in settling certain claims which were (as alleged by the client) falsely stated by said attorney to exist,—Reid, error to refuse to charge that the jury might consider the value of the attorney’s services, and the disbursements incurred by him for said client, as having a bearing upon the probabilities of the case.
    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.
    Appeal from judgment and order denying motion for new trial.

      N. E. Pultzs, appellant, in person, and Erastus New, of counsel, among other things, urged :
    The refusal to charge that the jury might consider the value of the services rendered by the defendant to the plaintiff and the amount of the disbursements in determining whether defendant consented to accept $500 in full for his services and disbursements, was clearly error, and under the rule laid down in Cohen v. Kelly (35 Super. Ct. 42), a new trial should be granted. In Cornell v. Markham (9 Week. Dig. 31), it was held that “ when the terms of a contract are in dispute, the value of the things about which the contract is made may be shown as bearing upon the question of probabilities.” See also, Kavanah v. Wilson (70 N. Y. 177; Jobes v. Parsons, 9 Week. Dig. 11).

      Royal S. Crane, for respondent.
   By the Court.—Freedman, J.

This action was brought to recover the sum of $500, wrongfully detained, and upon the trial the true issue was, whether plaintiff’s consent to a certain settlement between the parties was obtained by the defendant as her attorney by the false statement that, in addition to the sum of $500 paid to Valentine, which was conceded to have been paid, the further sum of $500 had to be paid to Jackson as the attorney of Swift, and that this left only §500 for defendant’s services and disbursements, or whether it was obtained upon the understanding that the defendant might retain $1,000 for his services and disbursements. Upon this issue there was a sharp conflict of testimony, and the jury had a right to look at surrounding circumstances inclusive of probabilities. The extent- of the services rendered and of the disbursements incurred by the defendant for the plaintiff was a fact which had a material bearing upon the question of probabilities, and the jury should have been instructed, as defendant requested, that they might consider the value of such services and the amount of such disbursements in determining whether the defendant consented to accept $500 in full for his services and disbursements as claimed by the plaintiff. They should also have been instructed, as defendant requested, that if they found that the amount agreed to be paid for such services and disbursements was $1,000 instead of $500, the defendant was entitled to a verdict. In refusing these requests and submitting the case to the jury upon ,the theory that the main point was whether or not there had been in point of fact a payment of $500 to Jackson as the attorney of Swift, the learned judge who presided at the trial erred.

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

Sedgwick, J., concurred.


text:
    ANDREW J. ECCLES, Respondent, v. ROBERT L. DARRAGH, Appellant.

      Liability and duties of contractor engaged in taking down building.

    The principle which makes a person interfering with the safety of the public highway, as such, and for private ends, an insurer of the safety of all persons traveling over the same, who may be injured in consequence of said interference, without fault on their part, cannot be extended to the case of a contractor engaged in taking down a building, there being no excavation or obstruction in the street by reason of said work; and a person injured by material falling from said building cannot recover damages upon the ground of such absolute liability on the part of said contractor.
    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.
    Appeal from judgment entered upon verdict of jury, and from order denying motion for new trial upon the minutes.

      Larned, Warren & Ethridge, for respondent.

      Dixon & Whitlock, for appellant.
   By the Court.—Freedman, J.

The plaintiff was bound to establish that the injury sustained was caused by the negligence of the defendant as a contractor, or of his servants, in taking down the building in question, exclusive of any other primary cause. The proof, showing the manner in which, and the circumstances under which, the plaintiff was struck by a piece of brick in front of the building, and that defendant’s servants were at the timé at work in some parts of the building, was sufficient to carry the case to the jury. But it also appeared that at the same time two other individuals were at work as sub-contractors, one in taking down the -brown stone of the front wall, and the other the woodwork of the building ; and there was-evidence upon which the jury might have found that at that particular time defendant’s men were not employed on the front, but were at work on the side and the rear of the building. Under these circumstances, and having pleaded and insisted throughout upon an absence of control over the sub-contractors, the defendant had a right to have the jury instructed, as he requested, that if the men who caused the accident were not the servants of the defendant, but were exercising an independent employment, and the defendant did not interfere with their work, he was not liable. The court refused so to charge, which was error, and as the defect was not cured by the charge as delivered, defendant’ s exception to such refusal must be sustained, provided, notwithstanding the existence of the subcontracts, the defendant did not incur an absolute liability as principal contractor for a failure to erect proper guards or barricades across the sidewalk. The plaintiff contends for such absolute liability, though the jury were instructed otherwise, and cites Creed v. Hartman (8 Bom. 128). In that case the defendant-, who had contracted with the owner of lots, to build a block of houses thereon, and who had made a subcontract with another to make the necessary excavations, was held liable for an injury sustained by the plaintiff, who had fallen into an excavation in the sidewalk in consequence of the negligence of the sub-contractor, or his servants, in not having the same property protected. The decision of that case was sustained, by the court of appeals (29 N. Y. 591), under the rule-laid down in Congreve v. Smith (18 N. Y. 79); that, “ persons who, without special authority, make or continue a covered excavation in a public street or highway, for a private purpose, should be responsible for all injuries to individuals resulting from the street or highway being thereby less safe fos its appropriate use, there being no negligence by the parties injured.” This principle, which makes a person interfering with the safety of the public highway, as such, and for private ends, an insurer of the safety of all persons traveling over the same, who may be injured in consequence-thereof without fault on their part, cannot be,extended to cover the case at bar. .

The judgment and order should be reversed, and a new trial ordered, with costs to appellant to abide the; event.

Sedg-wick, J., concurred.


text:
    CHARLES F. KUEHNEMUNDT, Respondent, v. JOHN H. HAAR, et al., Impleaded, &c., Appellants.

      Partnership—accounting by—assignment, what passes under.—Pleading..

      It seems, that an accounting may be had for the purpose of adjusting, the accounts of a copartnership, as between the pa/rtners, though the-complaint fails to show whether there are outstanding claims due to or from the firm, or whether there is property owned by the firm.

      In an action for such an accounting, where the complaint shows that an assignment for the benefit of creditors has been made by the firm, the complaint will be held insufficient on demurrer. The cause of action for such sums as may have been withdrawn in excess by any of the partners is in the firm, and passes as an asset by the assignment.
    Before Sedgwick and Freedman, JJ.

      Decided April 5, 1880.
    Appeal from judgment and order overruling demurrer to complaint.
    The facts appear in the opinion of the court.

      Jacob A. Gross, for appellant, urged:—I.
    I. Assuming that the complaint states facts sufficient to constitute a cause of action, it also states facts which constitute a defense, consequently the whole complaint must be considered together in determining upon demurrer whether the complaint states a cause of .action (Calvo v. Davies, 73 N. Y. 211).
    II. If it be assumed, in the language of the complaint, “that each of said partners drew out of said firm’s account large sums of money in excess of the .amount drawn by plaintiff,” it does not follow that the plaintiff is entitled to any relief ; because,—1. By the terms of the agreement, as stated by plaintiff, defendant Haar was entitled to ten per cent, more of the gross amount of the profits than the plaintiff, and no cause of action would arise unless that sum had been exceeded. 2. The cause of action for any sum withdrawn by a partner in excess of his share of the profits was in the firm, and passed by the general assignment to their assignee as an asset, and he alone can maintain an action for its recovery (Busby v. Chenault, 13 B. Monr. 554).
    III. Until the firm debts are discharged in. full the plaintiff is liable in solido to the creditors of the firm to the full amount of their claims, and this liability can be enforced by the assignee, who is for this purpose the trustee of the creditors.
    IV. The proceedings of the assignee, as well as his powers and duties, are regulated by statute (Laws 1877, c. 446). The jurisdiction to compel an account, or the performance of any other duty, is exclusively .vested in the court of common pleas (§§ 12-24), and until the proceedings under the assignment have been terminated, the claims of the partners arising out of the partnership are either suspended or vested absolutely in the assignee, subject'to the execution of his trust.
    V. The partnership was dissolved immediately upon the declaration of the insolvency (Story on Partnership, § 814; Collyer on Id. b. 4, c. 1, 583-590, 2 ed. ; Griswold v. Waddington, 15 Johns. 82 ; Marquard v. Manuf. Co., 17 Johns. Ch. 535 ; Exp. Smith, 5 Ves. 295 ; Barker v. Goodair, 11 Ves. 78-83).
    VI. Courts of equity will not interfere to settle accounts and set right any alleged balance between the partners, but will await the regular winding up of the partnership concern under the insolvency proceedings (Richardson v. Bank of England, 4 Maud & Craig, 156, 172, 178 ; Brown v. Litton, 1 P. Will. 224; Story on Part. § 229, subd. 1). The individual claim of a partner against the partnership is subordinate to, and inferior to the claims of the creditors of the firm (Kirby v. Schoonmaker, 3 Barb. Ch. 46 ; 1 Story Eg. §§ 675, 676; Exp. Buffin, 6 Ves. 119-126; Exp. Williams, 11 Id. 3, 5). The cases which hold that after the dissolution of a firm an action for an accounting may still be maintained by one partner against the other, are not in conflict with these views. Such an action can only be maintained by the party in whom the cause of action is vested. In the case before the court it affirmatively appears, by the allegation of the pláintiff,' that that cause of action has been transferred by him, and it follows that he has no more right to bring this action than a mere stranger would have.
    VII. The rule of equity, that partnership property is tó be first applied to the payment of partnership debts, and the individual property to the payment of individual debts, has no application in this case, because : 1. That rule exists for the benefit of the creditors, and can be invoked only by them. 2. It does not appear that there are any individual creditors as distinguished _from partnership creditors. 3. Until the firm creditors are satisfied, the claim against the partners for overdrafts is, as we have seen,, a firm asset.

      John L. Logan, attorney, and G. M. Bayne, of counsel, for respondent, urged:
    I. The facts stated constitute a cause of action (Luddington v. Taft, 10 Barb. 447).
    II. An accounting may be had after a general assignment under the insolvent laws, to determine the equities between the partners ; non constat that there will not be a surplus after the payment of all debts ; at any rate one partner would be entitled to a personal judgment against the others for any amount which might be found due him, even if there was no surplus. This was an assignment of the partnership assets, and if one partner paid more towards the partnership debts than the-other, he would be entitled to recover this amount from his copartners. In any case, the proper remedy here would be by answer setting forth that plaintiff is not the proper person to bring this action, as he has assigned his interest therein. An assignment is of itself a dissolution, and entitles either partner to an accounting. This principle is fairly deduced from the cases cited under this head (Collyer Partn., 6 ed. 442 ; Marquand v. N. Y. Man. Co., 17 Johns. Ch.

      525; Neudecker v. Kohlburg, 3 Daly, 407; Butler v. Ballard, 11 J. & S. 191 ; McKelvey’s Appeal, 72 Penn. St. 409 ; Eden v. Williams, 36 Ill. 252).

   By the Court.—Freedman, J.

This is an action between partners for an accounting within certain limits, and the ground of the demurrer is that the complaint does not state facts sufficient to constitute a cause of action. The complaint sets up a partnership, its dissolution by consent, that each of the defendants during the existence of the partnership drew out large sums of money in excess of the amount drawn by the plaintiff, and that no accounting has been had, and judgment is demanded that such partnership be declared dissolved, pursuant to said consent, and an account taken of all the said partnership dealings and transactions from the commencement of the partnership, and of the moneys received and paid by the partners respectively, and that the .said accounts be adjusted, as between said partners, and the balance due each as from the other be declared, and for such other and further relief as to the court may seem just and proper.

If this were all, the complaint might be sustained under the rule laid down in Luddington v. Taft (10 Barb. 447), though it fails to show whether or not there are outstanding accounts or demands due to or from the firm, or property owned by the firm.

But the complaint further alleges that the dissolution by consent took place in consequence of the insolvency of the firm, and that thereupon all the partners duly executed and delivered an assignment of all their partnership property and assets to one Frederick Meyer, under the insolvent laws of this State, for the benefit of their creditors, which said assignment was duly filed, and that said Meyer has duly qualified as such assignee, and entered upon the performance of his duty as such.

The complaint therefore not only states a cause of action, but also facts sufficient to constitute, a defense thereto, and the whole complaint must be considered together in determining its sufficiency upon demurrer (Calvo v. Davies, 73 N. Y. 211). Upon all the facts pleaded, the court will not interfere to settle accounts within the narrow limits prayed for, but will await the regular winding up of the affairs of the partnership under the insolvency proceedings.

In Richardson v. Bank of England (4 Myl. & C. 165, 172), Lord Cottenham said that nothing is more settled than that, even after the determination of the partnership and before the settlement of the account, and before the payment of the joint debts, or the realization of the partnership estate, “what may have been advanced by one partner, or received by another, can only constitute items in the account. There may be losses, the particular partner’s share of which may be more than sufficient to exhaust what he has advanced, or profits more than equal to what the other has received ; and until the amount of such profit and loss be ascertained by the winding up of the partnership affairs, neither party has any remedy against, or liability to, the other, for payment from one to the other of what may have been advanced or received.”

The cause of action for the sums alleged to have been withdrawn by the defendants in excess, was in the firm at the time of its dissolution and of the assignment, and it passed by the general assignment to the assignee as an asset. He alone can maintain an action thereon, and his proceedings as well as his powers and duties are regulated by statute.

The judgment and order appealed from should be reversed with costs, and an order entered sustaining the demurrer, with costs.

Sedgwick, J., concurred.


author: Per Curiam.

text:
    ISAAC L. EGBERT, Respondent, v. OWEN O’CONNOR, Appellant.

      Bight of appeal—waiver of.—Order of reference.

    The defendant appealed from an order referring the issues in the action for trial, and thereafter applied for leave to serve an amended answer, which was granted upon condition that the order of reference stand, and that the issues made by the amended answer be tried thereunder. Thereupon defendant duly entered an order in compliance with said conditions, served an amended answer, and proceeded with the reference. Held, that he thereby waived his right of appeal from the order of reference.
    Before Sedgwick and Speir, JJ.

      Decided April 5, 1880.
    Motion to dismiss appeal.
    The action was brought by plaintiff on contract to recover for services, disbursements, &c., as an attorney and counselor. The answer set up a general denial and counter-claiip. The reply denied the counterclaim. On plaintiff’s motion, in which it appears that the trial would involve the examination of a long account, the plaintiff’s bill of items, containing upwards of sixty items, and the defendant’s eight items, the court at special term granted an order referring the issues to Hon. James M. Smith, to hear, try and determine, which order was entered October 25, 1879. On the same day defendant appealed to the general term from said order. On November 13, 1879, the defendant moved, at special term, for leave to serve an amended answer, and on such motion entered an order allowing defendant to serve an amended answer upon the condition, among others, “ that the order of reference entered in said action at a special term of this court, on October 25,1879, referring the same to James M. Smith to hear and determine, be allowed to stand, and that the issues raised by said amended answer, or by any reply thereto, be tried and determined by the said referee.” On November 17, 1879, served an amended answer, to which amended answer plaintiff served a reply, November 19, 1879. Upon the issues made by the amended pleadings, the defendant has voluntarily proceeded to trial before the referee.

      Isaac L. Egbert, attorney and respondent, in person.

      Wilson & Hillier, for appellant.
   Per Curiam.

The motion to dismiss the appeal must be granted, with costs. The acceptance of the order appealed from, and a compliance with all of its conditions, by the defendant, is a waiver of all right of appeal.


author: By the Court.—Speir, J.

text:
    JOHN CURRY, Appellant, v. ANDERSON FOWLER, Impleaded with WILLIAM G. McCORMACK et al., Respondents.

      Partnership—what constitutes as to third parties.

    The defendants, Fowler and McCormack, entered into an agreement by which Fowler was to lend or advance to the McCormacks $50,000, upon certain real estate, said sum to be used by them in building certain houses thereon. For this loan they were to pay Fowler interest and one-half of the profits of the houses, when sold, which it was stipulated should not be less than $12,500 ; the whole loan, interest, and profits ■ to be secured by bond and mortgage on the premises, Fowler to take new second, mortgages for his loan and profits, whenever the McCorma'cks should be ready to obtain a prior loan on the premises, such new mortgages to be paid oil when the houses were sold.

      It appeared that the agreement was carried out, and all the mortgages called for by the agreement given, and that when Fowler was advised that the mortgages for $63,500 were tainted with usury, he threw ofí the $13,500, and took new mortgages for $50,000.

      Held, that the agreement established the relation of lender and borrower between Fowler and the McCormacks, and that the share of profits to be received by the former was merely a mode of compensating him for the use of his money, and did not make him a partner, even as to third parties.

    Before Sedgwick, Speib and Freedman, JJ.

      Decided May 3, 1880.
    Appeal from order dismissing complaint, and from judgment entered thereon.
    The action is brought for goods sold and delivered to, and for work, labor and services rendered for the firm of W. Gr. & J. E. McCormack, of which firm it is alleged the defendant Fowler was a partner, by virtue of an agreement annexed to the complaint.
    The answer denies the partnership, and sets up special defenses.
    The court dismissed the complaint on the ground that defendant Fowler was not a partner with the McCormicks.
    The facts appear in the opinion of the court.

      Thomas & Wilder, attorneys, and Henry S. Sanford and Abner C. Thomas, of counsel, for appellants, among other things, urged :
    Such agreements have repeatedly been held to constitute partnerships (Leggett v. Hyde, 58 N. Y. 272; Ontario Bank v. Hennessey, 48 Id. 545 ; Manhattan Brass & Mfg. Co. v. Sears, 45 Id. 797 ; Fitch v. Hall, 16 How. Pr. 175 ; Cushman v. Bailey, 1 Hill, 526 ; Haas v. Boat, 16 Hun, 526). If such a contract can be made as that alleged in the complaint, and if all responsibility for losses can be evaded while a half interest in profits can be secured, all of the careful provisions of our statute relating to limited partnerships can be evaded and ignored (1 Ed. St. 716, et seq.).

      Martin & Smith, attorneys, and A. P. Whitehead, of counsel, for respondent, among other things, urged :
    Such a transaction does not constitute the lender a partner (Fitch v. Hall, 25 Barb. 13 ; Burckle v. Eckart, 1 Den. 337; aff’d 3 Comst. 132 ; Vanderburgh v. Hall, 20 Wend. 70 ; Lamb v. Grover, 47 Barb. 317; Turner v. Bissell, 14 Pick. 192 ; Denny v. Cabot, 6 Metc. 82 ; Loomis v. Marshall, 12 Comst. 69 ; Rice v. Austin, 17 Mass. 197; Gallop v. Newman, 7 Pick. 282 ; Heimstreet v. Howland, 5 Den. 68 ; Smith v. Wright, 5 Sandf. 173 ; Munch v. Gadon, 20 N. Y. 93 ; Wheatcroft v. Hickman, 9 C. B. N. S. 47, 68, 92 ; Lintner v. Milliken, 47 Ill. 178 ; Smith v. Vandenburgh, 40 Id. 34. See also note to Waugh n. Carver, 7 Smith L. C. Am. ed. 1308, and cases there cited).

       See Richardson v. Hughitt (76 N. Y. 55); also Eager v. Crawford (Id. 97).

   By the Court.—Speir, J.

The question to be determined is whether the defendent Fowler had such an interest in the profits of the business of the firm of W. G. & J. E. McCormack as to render him liable jointly with them as a partner to third parties. The facts in the case are uncontradicted.

The agreement in substance is that the defendant Fowler should lend or advance to W. G. & J. E. McCormack $50,000, upon certain real estate, to be used by them in building certain houses on that real estate ; the McCormacks were to pay for this loan, interest, and one-half of the .profits of the houses when sold, which should not be less than $12,500. The whole loan, interest and profits, to be secured by bond and mortgage on the premises ; Fowler to take new second mortgages for his loan and profits, whenever the Mc-Cormacks should be able to obtain a prior loan on the premises, and the new mortgages to be paid off when the houses were sold.

It appears that the agreement was carried out as contemplated by the parties and the mortgages called for by the agreement were all given. But the stipulated sum below which the profits should not fall, $12,500, was included with the $50,000 loaned to the McCormacks on the bond, which raised the second mortgages to $62,500. Fowler was advised that the mortgages for this latter sum were tainted with usury, and he deducted the $12,500 and took new mortgages for $50,000.

We are of the opinion that the true construction of the instrument is, that it was a contract between the lender and the borrower, in which provision was mutually made that as to the profits it was merely a mode of providing a compensation to Fowler for the use of the money he had advanced, and that Fowler was entitled to receive a share of the„ profits, not as a partner, but on account of the advance of the money he had made to the firm of W. Gr. & J. B. McCormack. The lender was to receive seven per cent, and one-half of the profits, and the money was secured by a mortgage of lands, and the money and interest were to be repaid in any event.

It is urged by the learned counsel for the appellant that as the defendant had stipulated under the agreement for one-half of the profits, besides interest, he is liable as a partner for the losses. This would be so unquestionably, had the defendant stipulated for an interest in the profits of the business, as profits, and not as a means of compensation for the loan. The money in this case was advanced by Fowler as a loan' to the firm, and not as the profits of a partner. It did not constitute a portion of the capital of the firm so as to confer the privileges or impose the liabilities incident to a partnership unless it confers some right or ownership in the partnership or the business in which it is engaged (Norman v. Bean, 1 Foster, 93; Loomis v. Marshall, 12 Conn. 69). There are no words in the agreement which authorize the parties here to act for each other, nor can any such intention be inferred from its terms. A partnership is a mutual agency and involves the existence of a joint ownership or interest which is to be managed for the common benefit. There may be a participation in profits, yet no partnership even as to third persons. The real test of the liability of a person to third parties, as a partner, is whether or not the other person or persons conducting the business were his agents to carry it on (Waugh v. Carver, note, Smith N. C. 1299, 7 Am. ed.). It is not claimed that the defendant, Fowler, became the agent of the McCormacks under the agreement or otherwise. It is -true, authority may be implied where the agreement contemplates the creation of a joint ownership or interest, to be mutually managed ; and if the business be so conducted, the parties thereto become liable as partners to third parties. But if the relation into which they enter is merely one of contract, and does not result in a joint interest or ownership, the partnership is not established. A loan by a banker to a manufacturer, on the terms of receiving one-third of the profits instead of interest has been said to be within the principle (Smith v. Vandenburgh, 40 Ill. 34; Lintner v. Milliken, 47 Id. 178).

The several other special defenses urged and argued at length do not require our attention.

The judgment must be affirmed, with costs.

Sedgwick and Freedman, JJ., concurred.


text:
    SHEPHERD F. KNAPP, as Receiver, &c., Respondent, v. WALTER ROCHE, Appellant.

      Motion to compel successful party on appeal to perfect judgment.

    When judgment of affirmance is rendered by the general term, it is the duty of the respondent to prepare and file a proper judgment-roll, based upon the said decision, and the appellant has a right to insist upon the performance of that duty. This is so, though the appellant has failed to file the printed case and exceptions as settled, under rule 85, the point not having been raised at the argument of the appeal, and the proposed case, proposed amendments and settlement of tne judge having been filed.
    Before Speir and Freedman, JJ.

      Decided May 8, 1880.
    Appeal from order denying appellant’s motion to require respondent to perfect judgment pursuant to a decision made by the general term in his favor. The facts sufficiently appear in the opinion.

      John T. McGowan, attorney, and Luther R. Marsh, of counsel, for appellant, urged
    I. The judge who tried the cause was dead, and his certificate could not be procured. The proposed case and amendments, as settled by the judge who tried the, cause, were on file in the office of the clerk of this court. The case and exceptions, as settled by the judge “who tried the cause,” were printed and served upon the attorneys for the respondent, and the appeal from the judgment, and the order denying the motion for a new trial, was argued at general term, upon the printed case and ex-, ceptions, so served. The court and the counsel for the respondent waived the certificate, as well as the filing of the printed case.
    II. The printed case and excéptions served upon the attorneys for the respondent and submitted to the court upon the argument, are “ the papers upon which the appeal was heard,” referred to in section 1,354.
    III. The clerk before entering judgment is entitled to insist on the payment of the fee for such service, which is chargeable to the party in whose favor judgment is entered (Burnett v. Westfall, 15 How. Pr. 430). It is the duty of the respondent to prepare and file the judgment roll on the decision of the general term. The appellant is entitled to have the successful party enter judgment upon the decision (Purdy v. Peters, 15 Abb. Pr. 160; Lentilhon v. Mayor, 3 Sandf. 733). Three printed copies of the appeal papers were served on respondent eight days before the commencement of term, under rule .41. This rule enables the adverse party to see that the case and papers on appeal are properly printed, and in case of affirmance of the judgment or order appealed from, enables him to perfect his judgment by annexing the judgment “ to the papers on which the appeal was heard.” The affidavit on the part of the appellant, and the certificate of the clerk, shows that no judgment roll has been filed, consequently section 1,336 has not been complied with, which requires the entry of every final judgment in the judgment book. In Schenectady Plank Road Co. v. Thatcher (6 How. 337), it was held that the decision of the court in writing, when filed, is not the entry of judgment; but that in.such a case, as in all others, the judgment must be entered in the judgment book, and that until judgment is thus entered the clerk is not authorized to make up the judgment roll. The judgment roll on the affirmance of the judgment as modified, should consist of the judgment roll filed in June, 1874 (prior to the settlement of the case and amendments), the notice of appeal from the judgment and order denying the motion for a new trial, the case and exceptions as settled, the order of the general term affirming the judgment as modified, and a postea. All these papers, with the exception of die order of the general term and the postea, are embodied in .the printed case and exceptions upon which the appeal wras heard, and on which the general term acted in making and rendering its decision.
    Develin, Miller & Trull, attorneys, and John E. Develin, of counsel, for respondent, urged:
    I. The judgment was perfected and the judgment roll filed on May 14, 1878, so far as the respondent was called upon to perfect and file them by the rules and practice of the court, (a) The order of the general term signed by the presiding judge is the judgment of the court, bio costs were given, and hence no postea was necessary. (5) Where judgment of affirmance is rendered upon appeal, the judgment roll consists of a copy of the judgment, annexed to the paper on which the appeal was heard (Code Civ. Pro. § 1,354). “ The papers” on which the appeal was heard in this action were the case on appeal as settled, which it was the duty of the defendant appellant to have filed (Code, § 1,353; Gen. Rule, 35), and the notice of appeal which he did file. The judgment of the general term was filed December 24, 1878, by the respondent. The only other act necessary to complete the technical judgment roll under §.1,354, was to be performed by the clerk pursuant to § 1,238. This section declares that' the “ judgment roll” must be prepared and furnished to the clerk b.y the attorney for the party, at whose instance the final judgment is entered, except that the clerk must attach thereto the necessary original papers on file ; but the clerk may at his option makeup the entire judgment roll. (c) “The judgment roll,” intended by this section “to be prepared and furnished to the clerk,” consists, so far as this suit and appeal are concerned, simply of the judgment of affirmance. The case as settled must be filed by the appellant (Rule 35): a copy will not do. The original papers to be annexed under this section to the judgment roll (“ to be prepared and furnished to the clerk”) are then the case as settled and the notice of appeal. The case was in the custody and control of the appellant and the respondent could not be called upon to file it; not having, he could not file it. (d) The requisite papers being thus presumably in the hands of the clerk he “ must,” in accordance with section 1,237, immediately file the judgment-roll. The mere fact that they are not bound up in a bundle by him does not deprive them of their character of a judgment roll.
   Per Curiam.

Section 1,354 of the Code provides that when judgment of affirmance is rendered upon the appeal, the judgment roll consists of a copy of the judgment annexed to the papers upon which the appeal was heard. The papers upon which the appeal was heard and determined were the printed case and exceptions. Section 1,238 states that the judgment roll must be prepared and furnished to the clerk by the attorney for the party at whose instance the final judgment is entered; except that the clerk must attach thereto the necessary original papers on file. But the clerk may, at his option, make up the entire judgment roll.

It was therefore the duty of the respondent to prepare and file a proper judgment roll, based on the decision of the general term, by which the judgment appealed from was affirmed on certain conditions, and the appellant has a right to insist upon the performance of that duty (Lentilhon v. Mayor, &c., 3 Sandf. 721 ; Rust v. Hauselt, 69 N. Y. 485). The affidavit of the appellant and the certificate of the clerk show that this has not been done, so that section 1,238 has not been complied with.

It is claimed, however, that although the case, as originally proposed by the appellant, the amendments proposed thereto by the respondent, and the settlement made by the judge who tried the cause, together with the notice of appeal, were properly tiled, the motion was properly denied because the appellant failed, before the hearing of the appeal, to file a copy of the printed case and exceptions as settled. True, this should have been done, and on the argument the certificate of the clerk should have been produced, showing-that it was done, and if the respondent had called the attention of the general term to the appellant’s omission in that respect, the court would have enforced the-rule. But the omission constituted only an irregularity, and both parties having invoked the action of the-court as though all preliminaries had been fully complied with, and the court having thereupon determined the appeal on that assumption and upon the number of printed copies handed up as required by the rules, the respondent cannot now be permitted to defeat the appellant’s right of review in the court of appeals by declining to perfect a judgment pursuant to the decision procured.

The order appealed from should be reversed, with costs, and an order granted requiring the respondent to-enter judgment upon the decision made by the general term, and to file a judgment roll; and providing that in doing so, he may file one of the printed copies submitted on the argument and now in the hands of the clerk of the general term of this court, as the printed case and exceptions ; and further providing that in case-of the respondent’s failure to comply with said order -within twenty days, the appellant, after the expiration of said twenty days, may enter judgment and prepare the judgment roll.


text:
    MARGARET M. BRODAR, Appellant, v. GEORGE W. T. LORD et al., Respondents.

      Former recovery—action, to recover installment on cont/ra6t-*-when barr to action for breach.

    Plaintiff having been wrongfully discharged from defendant’s employment, brought action to recover certain installments of her wages, being all that she would have been entitled to under the contract at the time the action was brought. The complaint was in form for wages, but it appeared upon the face thereof that no services were rendered after plaintiff’s discharge. Judgment was taken by default, and was paid in full by defendant.
    Field, that the above recovery exhausted plaintiff’s remedy for damages for breach of contract, and is a bar to a subsequent action therefor.

    Before Speer and Freedman, JJ.

      Decided May 3, 1880.
    Appeal by plaintiff from judgment rendered at •special term.
    The plaintiff was hired by the defendants on March 4, 1878, for one year, at a salary of §1,300, payable in bi-weekly installments of §50 each. ' On September 30, 1878, the plaintiff was discharged without cause.
    About October 15, 1878, plaintiff brought action No. 1 for $50 in this court, and thereafter, by leave of •court, served a supplemental complaint claiming §100 more, or §150 in all. The complaints are in form for wages, but it appears upon the face of each, that no services were performed after plaintiff’s discharge. No answer was interposed, and on December 10, 1878, plaintiff assessed her damages before the clerk, and entered judgment, which was paid in full, and a satisfaction piece was given and filed the following day.
    1 This action was commenced on January 11, 1879, and the complaint was identical with the complaint in action No. 1, except that it sought, in form, to recover wages for four subsequent bi-weekly periods.
    Defendants pleaded the former recovery, judgment and satisfaction in their answer.
    Plaintiff served an amended complaint, which is in form for damages for breach of the contract, and defendants in answer again pleaded the former recovery.
    The judge, at special term, found asa conclusion of ' law, “ that the recovery in the first action exhausted the plaintiff’s remedy for damages for the breach of the contract, and is a good defense to this action.”

      John McCrone, for appellant.

      Chittenden & Hubbard, attorneys, and James M. Townsend, Jr., of counsel, for respondents, urged :
    I. There is but one contract involved, and but one breach, viz., that of September 30, 1878. The recovery in the first action was a recovery of damages for the breach of this contract. It appears upon the face of the complaint and supplemental complaint in the first action, that no services were performed during the periods for which recovery was sought, and, as the doctrine of “ constructive service ” is done away with in this State, it could not have been a recovery of salary ; but in the words of his honor Chief Judge Daly, in Moody v. Levevich (4 Daly, 411), “ A judgment in favor of the plaintiff could by the law have' given upon no other ground. It was a recovery of damages for the breach of the contract and was a bar to any further action upon the contract.”

      II. The first recovery was of damages for the breach of the contract on September 30. This second action is brought to recover damages for the same breach of the same contract. The former recovery is a bar (Colburn v. Woodworth, 31 Barb. 381; Moody v. Leverich, 4 Daly, 401; approved in Howard v. Daly, 61 N. Y 362).

       See Jex v. Jacob, 7 Abb. New Cas. 452 ; Perry v. Dickerson, Id. 466.

   Per Curiam.

This case is' governed by the case of Colburn v. Woodworth (31 Barb. 381). We are not aware that the principle decided in that case has, since the decision, been questioned, and therefore see no occasion for further examination.

The judgment should be affirmed, with costs.


author: By the Court.—Curtis, Ch. J.

text:
    ISAAC L. MILLER, Receiver, Respondent, v. ELI LEVY et al., Appellants.

      Receiver in supplementary proceedings—action by, for partition of real estate—appointment of receiver therein.

    The plaintiff, a receiver in proceedings supplementary to execution, to whom the judgment debtor had conveyed his interest in certain real estate devised by the will of his father to executors, in trust for specified purposes, commenced this action for partition of the premises in question, and was appointed receiver of the rents, &c., therein. It appearing that the said executors, the defendants herein, were wholly responsible ; that they had duly accounted before the surrogate ; that two years had elapsed since the commencement of this action and a hearing thereof had not been had ; and that increased expense would be caused by such additional administration of the trust estate—the order appointing plaintiff receiver was reversed.

      It seems that a receiver in proceedings supplementary to execution, to whom the judgment debtor has conveyed his interest in real property, cannot, as such, maintain an action for partition thereof.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.

      Decided June 18, 1880.
    Appeal by the defendants, executors, &c., of Abraham Levy, deceased, from an order appointing the plaintiff receiver of rents and protits of certain real estate devised by the deceased, pending an iaction for a partition of the same.

      Charles M. Hall and A. B. Qreenhout, for appellants, among other things, urged :
    I. Plaintiff is not entitled to the control or possession of the fund in question. The executors of Abraham Levy, as trustees, are alone entitled to the rents and profits as such (1 R. S. 738, § 55, 739, § 60; Bradley v. Amidown, 10 Paige, 335).
    II. The plaintiff, as receiver, has nevertheless not such an estate as to enable him to maintain partition (Dubois, Rec. v. Cassidy, 5 W. Dig. 310 [G. T. Sup.]; Scott v. Elmore, 10 Hun, 68 ; Bostwick v. Menck, 40 N. Y. 383 ; Chatauqua Bank v. Risley, 19 Id. 369 ; Becker v. Torrance, 31 Id. 641; High on Recs. 141, note 1 ; Crabbe on Real Prop. § 1,035 ; Anderson v. Tread-well, Edm. Sel. Cas. 301; Willard Eg. Jur. 333; Story Eg. Hr. § 839).

      Isaac L. Miller, plaintiff and respondent, in person.
   By the Court.—Curtis, Ch. J.

The plaintiff was

appointed receiver of the property of the defendant, Leopold Levy, in proceedings supplementary to an execution, June, 30, 1877. The judgment debtor, Leopold Levy, by- the direction of the supreme court, executed August 14, 1877, a conveyance to the plaintiff, of all his right, title and interest in certain real estate, which was by the will of his father, Abraham Levy, deceased, devised to his executors in trust for certain purposes, therein mentioned. Subsequently, in August" 1877, the plaintiff, as receiver, commenced the present action for a partition of the premises in question, and was thereupon, by the order of this court, appointed receiver pendente lite, of the rents and profits of the premises.

It is from this latter order, made January 25, 1878, appointing the plaintiff, in the partition suit" instituted by him as receiver, again a receiver of the rents of the entire premises sought to be partitioned, that the defendants, executors of the will of Abraham Levy, appeal.

The papers show that the executors are responsible persons, that they are indebted to no one in any sum whatever, that they are able to answer any judgment that may be awarded in this action, and that they duly accounted before the surrogate, June 8, 1876. The affidavit of the plaintiff’s attorney, made October 1, 1877, that he believes the executors will appropriate to their own uses the rents of the premises, unless a receiver is appointed, and the grounds upon which he founds his belief fail to show such necessity or pressing danger as calls for additional custodianship. The premises consist of one small lot, with a building thereon, in Avenue B ; the papers disclose the payment, under the order of the surrogate, of a considerable sum by the trustees for legal expenses ; the present suit may add to that amount, and in view of the absence of any actual necessity for the appointment of a receiver, and the incurring of the expenses of such additional administratipn of the trust-estate, there appears to be but very little ground for sustaining the order appealed from. As it is, the plaintiff has had over two years, since this order was made, to bring his suit to a hearing, and it is apparent that the order was only made to protect the interests he claimed, while dili-. gently prosecuting his suit, and not with the view of permanently divesting the executors and trustees of all rights and duties in the administration of The estate.

It is unnecessary, in disposing of the appeal from this order, to pass upon the question, whether the plaintiff, being a receiver in supplementary proceedings, to whom a conveyance has been made by the judgment debtor, can, as such, maintain an action for a . petition. He holds the property as an officer of the court, to discharge some designated dary in respect to it, subject to its order and approval. That it should be his right, or duty, as such, to institute an action in. partition, does not seem to have been contemplated by the legislature, or approved by the courts, any more than in the case of a sheriff, or a referee, appointed to. sell. In Dubois v. Cassidy (75 N. Y. 302), the court say : ‘‘ We are inclined to the opinion, that- a receiver, thus appointed does not obtain such a title to real. estate as will enable him to maintain an action for partition,” but they did not consider themselves, then, called upon to decide that question. In that case no conveyance was executed by the judgment debtor, as in this, to the receiver. The criticism of the court, however, upon the nature of the receiver’s title to real estate of a judgment debtor, as a basis for a partition suit by the receiver in proceedings supplemental^ to execution, is adverse to the sustaining of the present suit.

Nor is it necessary in disposing of this appeal to. determine the nature and extent of the right, title and interest of the judgment debtor, if any he had, in the estate of his deceased father, Abraham Levy.

The order appealed from, appointing the plaintiff a receiver of the rents and profits of the premises in question, should be reversed with costs.

Sedgwick and Freedman, JJ., concurred.


text:
    WILLIAM SCHULTZ, Respondent, v. THIRD AVENUE R. R. Co., Appellant.

      Liability of master for negligence of servant.—Pleading—construction of— claim for damages.

    It was shown upon the trial that plaintiff was thrown from the defendant’s car b.y the conductor in charge thereof while it was in motion. The court charged that if the conductor “acted neither maliciously nor with the view to effect some purpose of his own, but within the general scope of his employment, while engaged in defendant’s business, and with a view to the furtherance of that business and the defendant’s interest, believing, upon the appearance before him, and upon which he had to exercise his judgment, that his duty to defendant required him to act, then the defendant is responsible for the manner in which he acted, and for the consequences of his act, though he may have acted in excess of his authority.” Held, correct.
    The complaint stated three separate causes of action, after each of which were the words “to his damage ten thousand dollars,” and closed with a prayer for judgment in the sum of $20,000. Held, that a verdict of $15,000 is not irreconcilable with said pleading. A verdict for the above amount held not excessive, in view of plaintiff’s injuries.
    Before Curtis, Ch. J., and Sedgwick, J.

      Decided June 18, 1880.
    Appeal by the defendant, from a judgment for $15,695.16, entered upon the verdict of a jury, and also from the order, denying a motion for a new trial upon the minutes. The facts sufficiently appear in the opinion of the court.

      Lauterbach & Spingam, attorneys, and W. A. Beach and H. Morrison, of counsel, for appellant.

      Stillwell & Swain, attorneys, and B. F. Tracy, of counsel, for respondent.
   By the Court.—Curtis, Ch. J.

The complaint states three causes of action, which are separately stated, and at the end, the plaintiff asks judgment for his damages, in the premises, to the amount of $20,000. The defendant is charged with tortious acts and negligence, causing personal injury to the plaintiff. At the trial, the plaintiff introduced testimony showing that, on the afternoon of October 3, 1877, being then twelve years old, fearing he would be late in getting home, he jumped on one of the defendant’s cars going down town, about the corner of Fifteenth street, having in his hands the money to pay his fare and intending to pay it ; that after the car had proceeded two blocks, the conductor came from the inside of the car, and a boy, who had got upon the car, put his hand to his nose and jumped off; that thereupon the conductor, without asking plaintiff for his fare, or giving him an opportunity to pay it, and without stopping the car, threw plaintiff off from it; that plaintiff fell upon the defendant’s up-track, about four feet distant, and another of the defendant’s cars, coming on the up-track, the brakes being out of order, so it could not be stopped, passed partially over the plaintiff, breaking his collarbone so that it protruded from the skin, alsoliis second and third ribs, the right arm near the shoulder in four or five pieces, the small bone of the left arih at the wrist, the thigh joint between the middle and upper third, and causing, in addition, great contusions and abrasions, and permanently injuring him and deforming him.

On the part of the defendant, the conductor of the car testified that he could not recognize the plaintiff, but that a boy put his hand to his nose and jumped off that afternoon, but that he did not push or kick any boy. There was testimony that the brakes of the uptown car were in good order.

The testimony of the plaintiff as to his being thrown from the car was corroborated by two witnesses.

The court, in substance, charged the jury, that they must be satisfied by the plaintiff that his injuries were the result of the defendant’s negligence, exclusive of any other primary cause; that the case turned upon the question, whether the defendant had incurred any liability, by reason of the acts of the conductor of the down car ; that if the plaintiff went upon the defendant’s car to steal a ride, he was a trespasser, and if being such and on the approach of the conductor he jumped off, it was their duty to render a verdict for the defendant ; and if they came to the conclusion the plaintiff was thrown off as described by him, before they render a verdict for the plaintiff they must be satisfied that such throwing off occurred in the course of the conductor’s employment as such ; that if the conductor went outside of his employment and without regard to his service, acting maliciously, or in order to effect some purpose of his own, wantonly threw the plaintiff off, the defendant is not liable.

The court also charged that if the conductor “acted neither maliciously nor with the view to effect some purpose of his own, but within the general scope of his employment, while engaged in defendant’s business, and with a view to the furtherance of that business and the defendant’s interest, believing, upon the appearance before him and upon which he had .to exercise his judgment, that his duty to the defendant required him to act, then the defendant is responsible for the manner in which he acted and the consequences of Ms act, though he may have acted in excess of his real authority.”

The exceptions to the charge, as contained in the case, are somewhat general, but the exceptions to the charge as presented, on the defendants’ points and discussed upon the argument of the appeal, are chiefly to the last preceding paragraph of the charge.

This portion of the charge excepted to is in conformity to the principles sustained in the court of appeals (Bounds v. Del. R. R. Co., 64 N. Y. 136; Jackson v. Second Av. R. R. Co., 47 Id. 274; Mott v. Consumers’ Ice Co., 73 Id. 543).

The defendant carried passengers only for hire ; and it was the right and duty of the conductor to refuse to receive a passenger who would not pay his fare, and to remove him when upon the car, if he refused to pay it; and the defendant is liable for the manner in which the conductor performs such duty if he acts under a mistake of judgment (Hoffman v. N. Y. Central & H. R. R. R. Co., 12 J. & S. 1).

The defendant claims that the verdict is irreconcilable with the pleadings; that each cause of action ends with a statement “ to his damage $10,000.” The controlling claim in respect to damages is at the close of the complaint, where the plaintiff prays judgment for his damages in the premises, to the amount of $20,000. This is sufficient to sustain, if otherwise tenable, the verdict of $15,000, even though the plaintiff in the three various classifications of his injuries in the complaint, uses the words “to his damage $10,000,” which, in view of the prayer for judgment for his damages, are in effect surplusage.

A witness, Francis Bielly, was recalled by the defendant, and asked if he had ever conversed with one Plass, about getting him to say that his brakes were out of order, in order to fix the company with a liability. The witness testified he did not know Plass and never conversed with any one on such a subject. The defendant, to show malice and ill-feeling on the part of Reilly, called Plass, and offered to prove that upon another and previous occasion Reilly endeavored to procure the witness, Plass, to make a full statement in regard to the condition of a car on this road, for the proposed purpose of fixing the liability upon the company, he having been discharged from its employment. This was excluded and the defendant excepted. This offer was made to contradict the testimony of the witness Reilly, who had been recalled by the defendant. It proposed to show Reilly had asked him to tell a lie about his brakes, to injure the company. The issue presented was foreign to the issues before the jury. Viewing the case as a whole, there is no reason for believing that this exclusion was injurious to the defendant, or that the court erred in the exercise of a proper discretion, or in law, by excluding the offer of the defendant, to contradict the witness it recalled and examined.

The number and severity of the plaintiff’s injuries, the pain, deformity and inability consequent upon them, as shown by the medical testimony, were of such a character that the verdict, though large in amount, should not be set aside on the ground that it is excessive.

The judgment and order appealed from should be affirmed, with costs.

Sedgwick, J., concurred.


text:
    ISAAC STEINBERG, an infant, &c., v. THE MANHATTAN RAILWAY Co.

      Guardian ad litem.— Security for costs.

    A guardian ad litem is responsible for costs under the Code of Civil Procedure, but he is not required to file security therefor.
    Before Curtis, Ch. J., and Freedman, J.

      Decided June 18, 1880.
    Appeal from an order denying a motion to compel the guardian ad litem to the infant plaintiff, duly appointed under the Code of Civil Procedure, to file security for costs.
    It was not claimed that the guardian is irresponsible or a non-résident.

      R. E. Deyo, for appellant, urged:
    In the case of Blake v. Doolan, decided in the supreme court by Judge Daniels, in December last, the following opinion was delivered: “The circumstances that the guardian for an infant plaintiff is required to be a competent and responsible person, who shall be responsible for costs (Code, § 469), is not sufficient to deprive the defendant of the right to security. The same qualifications were required for the person selected as the next friend of an infant plaintiff before the enactment of the Code, and the person appointed was in like manner rendered liable for costs (2 R. S. Edm. ed. 465, § 2). The only change made by the Code in the section is in the name given to the' person appointed, and that was not sufficient to supersede the provision entitling the defendant to require security to be refiled. As both requirements existed together under the Revised Statutes, they must be both equally consistent with each other under the Code. The statute entitles the defend-, ant to the security (5 R. S. 5 ed. 910, § 1). And neither the section of the Code referred to, nor either of those following, i. e., providing for a bond to the infant, is, in the least degree, in conflict with the continued existence and authority of that provision. The order must require a bond as security for the defendants’ costs. There are decisions to the contrary, viz.: Leinner v. Crouse, 61 Barb. 289; Grantman v. Thrall, 29 How. Pr. 344. But it is respectfully submitted that the opinion of Judge Daniels, and the dissenting opinion in Grrantman r. Thrall, are the only ones which reconcile the Code with the Revised Statutes, and that such reconciliation must be made, if possible.

      Frank Etheridge, for respondent, urged :
    I. No security can be required. The provisions of the Revised Statutes as to security being filed by the “ next friend” of an infant plaintiff, do not apply to a guardian ad litem appointed under the Code (Linner v. Crouse, 61 Barb. 289; Grantman v. Theall, 19 Abb. Pr. 308).
    II. The Code of Civil Procedure makes the guardian ad litem liable for costs (§ 469).
    III. The order was discretionary, and is not appealable (Bolles v. Duff, 17 Abb. Pr. 448; Fearn v. Grelpcke, 13 Abb. Pr. 473).
   By the Court.—Curtis, Ch. J.

The defendant appeals from an order, denying Ms application that the guardian ad litem of the plaintiff file security for costs. The Code of Civil Procedure makes the guardian ad litem responsible for costs (§ 469), but it does not require him to file security therefor. If the legislature had intended that an infant plaintiff should be restrained from prosecuting an action until his guardian ad litem filed security for costs, which, in the present application it is claimed should be for $750, it is but reasonable to suppose they would have made some enactment to that effect.

The order appealed from should be affirmed, with hosts.

• Freedman, J., concurred.


author: By the Court.—Sedgwick, J.

text:
    RUTH A. GANE, Respondent, v. GEORGE A. GANE, Appellant.

      Alimony—payment, how enforced,.

    "Where the final decree in an action for divorce directs the payment of a certain sum as alimony, but makes no provision in regard to security therefor, an order directing the defendant to pay the alimony, and further providing “that he give security for the future payment of said §600, and in default thereof that an attachment issue punishing defendant as for contempt," is not proper and should be reversed. Park v. Park (9 Weeh. Dig. 391), distinguished.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.

      Decided June 18, 1880.
    Motion for re-árgument by respondent. The facts appear in the opinion.

      T. J. McKee, for appellant.

      R. W. Todd, for respondent.

       See Gane v. Gane, 45 Super. Ct. 355.

   By the Court.—Sedgwick, J.

A judgment having been made that defendant pay certain sums as alimony, and the defendant not having paid them, proceedings were taken to enforce the judgment by declaring him in contempt for this non-payment. An order was made directing him to pay the alimony, “ and that he give security for the future payment of said $600, and in default thereof, that an attachment issue, punishing said defendant as for a contempt of court.” On appeal, this order was reversed and the respondent makes this motion for a re-argument, on the ground that since the decision the court of appeals has held in Park v. Park (9 Week. Dig. 391), that a judgment for the payment of alimony can be enforced by proceedings for contempt. The manuscript of the opinion of Judge Miller, in Park v. Park, has been handed up.

The case of Park v. Park is not at variance with the decision in this case. This court held that the judgment for the payment of alimony could be enforced by execution, and therefore the court had not power to enforce it by proceedings for contempt. In Park v. Park, the judgment directed that the defendant “pay and give security for the payment of the allowance granted to the plaintiff.” The court of appeals held that the court had power to enforce this by attachment and imprisonment, under the last clause of the 3d subdivision of the 14th section of the Code of Civil Procedure. That section gave the court power to punish by fine and imprisonment in the case of “a party to the action . . . . for the non-payment of a sum of money ordered or adjudged by the court to be paid, in case where, by law, execution cannot, be .awarded for the collection of such sum or for any other disobedience to a lawful mandate of the court.” Judge Miller said, “ The proceeding is for disobedience of an order of the court, to compel the defendant to furnish the security required by the decree, and the final order of the special term provides for this as to future alimony. The provision that execution may issue does not interfere with the order that security be furnished.” The sum of the opinion is that, incase of judgment for payment of alimony, and that security be given, although execution may be issued for the collection of the alimony, and therefore a party cannot be attached or committed for non-payment; yet, as the giving security cannot be enforced by execution, it, may be enforced by proceedings for contempt.

In this case, the order, made after final judgment, and which ordered “that he give security for the future payment of said $600,” was not a part of the judgment or a modification of it. It did not purport to be either, nor did any part of the proceeding disclose an intention on plaintiff’s part to move for a modification of the judgment. If the result had been an order which, on its face, modified the final judgment, this court would have been called upon to decide whether a final judgment could be modified by the proceeding that was taken. The proceeding, unless viewed as a means of enforcing the judgment, was an independent one, to compel payment of alimony, and the court had no power to entertain it.

The opinion of the supreme court in Park v. Park (25 Sup'm. Ct. 469) sustained the proceedings on the ground that the defendant had not complied with the direction of .the judgment, that security be given ; and, while it questioned, did not reverse, but assumed the correctness of the decision of Lansing v. Lansing (4 Lans. 377).

Motion for re-argument denied, with $10 costs and the disbursements.

Curtis, Ch. J., and Freedman, J., concurred.


text:
    PHEBE HENDERSON, Respondent, v. JOHN Y. SAVAGE, Appellant.

      Inquest—motion to open,—when denied.

    An application to open an inquest and serve a supplemental answer setting up a discharge in bankruptcy, will not be granted when it appears that the discharge was obtained pending the action, and that defendant made no motion to amend his answer (though the inquest was not taken till a year after the discharge), and that no motion to open the inquest was made till several years after judgment, no excuse for defendant’s laches appearing.
    Before Curtis, Ch. J., and' Sedgwick, J.

      Decided June 18, 1880.
    Appeal from order denying motion to open inquest and for leave to serve a supplemental answer setting up discharge in bankruptcy.
    The facts sufficiently appear in the opinion.

      Nelson J. Waterbury, for appellant.

      James Henderson, for respondent.
   By the Court.—Sedgwick, J.

If the learned court below was correct, in denying the motion, on the ground that there had been laches in making the application to set up the discharge in bankruptcy, the appellant showed no right to have the inquest opened, for it was practically admitted, or, at least, the papers disclosed that on the merits the appellants could rely only on the discharge. Under the circumstances, whether the appellant should have leave to make the defense was within the discretion of the court.

This discretion was not regulated alone by the character of the immediate issue. Its exercise depended also upon considerations of general rules, involving public policy. One of these is that unreasonable and unexplained delay in making an application, requires a denial of the application. In the present, case it cannot be held that the facts show that the court exercised its discretion improperly.

The action was begun in September, 1869. In March, 1871, the defendant obtained his discharge in bankruptcy. In 1872, the inquest was taken, and in June of that year judgment was entered. It appeared in evidence that the defendant knew that execution had been issued. The papers show that he was aware of the necessity of setting up the discharge by answer, in order to benefit by it, in this action. No application to set up the discharge was made until 1879, and after an order of examination in supplementary proceedings had been served. There are no facts alleged which appear to have required the court to hold that this, delay was excused.

The order should be affirmed, with $10 costs.

Curtis, Ch. J., concurred.


text:
    GEORGE MALCOLM, Respondent, v. HUGH O’REILLY et al., Appellants.
    Conversion.—Pleading.— Chattel mortgage.

    Where, by the complaint in an action against the sheriff, for wrongfully taking and converting certain chattels, it appears that plaintiff claimed title to the property as mortgagee under a chattel mortgage, in the form of a bill of sale, with condition that on payment of a certain sum on demand it should be void, mortgagor to remain in possession until default, &c.; an allegation that the plaintiff was the owner of the chattels in question is sufficient to sustain the action, without any averment of default on the part of the mortgagor.
    Before Curtis, Ch. J., and Sedgwick, J.

      Decided June 18, 1880.
    Appeal from a final judgment entered on an order overruling a demurrer to plaintiff’s complaint.
    The action was brought by plaintiff to recover, of the sheriff of Mew York county, damages for the conversion of property which plaintiff owned at the time of the conversion. Before the time to answer the complaint had expired, the sheriff’s indemnitors, under and in pursuance of sections 1,421 to 1,426 of the Code, were substituted as defendants in the place of the sheriff. The substituted defendants demurred to the complaint as served upon the sheriff, on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled.

      William P. Mullery, for appellants.

      J. F. Bullwinkle, for respondent.
   By the Court.—Sedgwick, J.

The complaint stated that one Whelan executed and delivered, for consideration, to the plaintiff, a mortgage upon certain chattels of Whelan. By the mortgage annexed to the complaint, it appeared to be in the usual form of a bill of sale, upon condition that on payment of a certain sum on demand it should be void. The mortgagor covenanted that in case of default in payment of the money, the plaintiff might take possession of the chattels and sell the same, with the further covenant, that until default be made in the payment of the money the mortgagor was to remain and continue in the quiet and peaceable possession of the chattels.

The complaint further averred that payment of the money was demanded by the plaintiff of the mortgagor, “and thereupon, pursuant to said mortgage, the plaintiff was entitled to the immediate possession and control of the property so mortgaged, and became the owner thereof, and thereupon took the same into his possession, and, while the plaintiff was lawfully possessed,” &c., the defendant wrongfully “ took and converted the same to his own use.”

The defendants sustained their demurrer by the proposition that the terms of the mortgage provided that the mortgagor should remain in possession, until default of payment, after demand, and although the complaint stated a demand, it did not state that there had been any omission or refusal to pay.

Since the pleader seemed to have brought his action on the case, it would have been better to have alleged the default specifically, but I am of opinion that the complaint, without it, should have been, as it was, sustained. The complaint stated that the plaintiff was the owner of the property. It was unnecessary to state in what manner he became owner, because, as to the ultimate fact of ownership, the manner was matter of evidence. It did not contradict that averment to allege that it was pursuant to- the mortgage—for in effect that was a bill of sale to the plaintiff—nor to allege that a demand was made. If it were an essential part of the title, that there had been a default, the omission to plead it did not create a presumption that it had not occurred when the fact of ownership was alleged.

Judgment should be affirmed, with costs.

Curtis, Ch. J., concurred.