author: The Court at General Term, said: Opinion Per Curiam.

text:
    ROBERT C. WATSON, as Trustee, &c., Appellant v. THE MANHATTAN RAILWAY Co., Respondent.

      Time to answer amended complaint properly extended pending appeal from order allowing amendment.

    Before Sedgwick, Ch. J., and Ingraham-, J.

      Decided January 3, 1888.
    Appeal from order extending defendant’s time to answer an amended complaint.
   The Court at General Term, said:

“We think the order granting plaintiff leave to amend the complaint by dropping one of the causes of action, so changed it that defendant was entitled to interpose an answer to the complaint as amended by the order. The answer as it stands contains allegations which were relevant when the complaint contained two causes of action, but which are not properly a part of the answer when one of the causes of action is striken out. The defendant having twenty days in which to answer, and having appealed from the order granting leave to amend the complaint and which made the answer necessary, it was proper to extend the time to answer until that appeal could be heard and disposed of. If the order had been reversed no new answer would have been required.”

Burnett & Whitney, attorneys, and Edward B. Whitney, of counsel, for appellant.

Davies & Rapallo, attorneys, and Edward 8. Rapallo, of counsel, for respondent.

Opinion Per Curiam.

Order affirmed without costs.


source: Caselaw Access Project

author: The Court at General Term, said:

license: Public Domain

text:
    CATHARINE W. COOKE, Respondent v. AARON DeGRAW, Imp’d, &c., Appellant.

      Cooke v. Platt, 98 N. Y. 38, and Platt v. Platt, 105 Ib. 497, followed— Judgment against receiver of estate of testator not to be satisfied out of rents of property belonging to devisees under the will, collected by said receiver, appointed on removal of the executors—Leave to file exceptions to report after time has expired.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 6, 1888.
    Appeal by deféndant, DeGraw, from an order allowing the plaintiff and defendants to file exceptions, and sustaining the exceptions to that part of the referee’s report, which found that the balance due on appellant DeGraw’s judgment against Nathan C. Platt, deceased, should be paid out of funds in the hands of the receiver herein, made up of rents of certain real property received by said receiver.
    This action had for its main object the removal of the three sons of Nathan C. Platt, deceased, from their position as executors. By the judgment rendered herein they were so removed and James M. Smith was appointed in their place, with the title of receiver, and with the powers and duties of an administrator with the will annexed. Theretofore, DeGraw, the appellant herein, having a claim against Nathan C. Platt, recovered judg.ment against said executors. After the appointment of said receiver, DeGraw brought an action against the receiver, thereon, and obtained judgment. Thereafter an order was made by which it was referred to a referee to take and state the accounts of receiver Smith and report to the court. The claim of DeGraw was presented and proved before the referee, and he reported the De-Graw judgment as a valid claim against the moneys in question in the receiver’s hands. The report of said referee coming up for confirmation, the order appealed from was. made.
   The Court at General Term, said:

“The principal questions involved in this appeal have been determined by two decisions of the court of appeals hereafter referred to. In Cooke v. Platt (51 Super. Ct. 55) 98 N. Y. 38, the court of appeals held, that the trust contained in the will of Nathan C. Platt was invalid, that the four children of the testator are vested with a title to the real estate as devisees in fee under the will, and that the receiver appointed in this action had no greater power than that of administrator with the will annexed, and as such had no power to execute the power of sale given by 'the will to the executors. It being thus determined that the children of the testator became vested on the death of the testator with a title to the premises in fee they thereupon became entitled to the rents and profits of the land. The rents when they respectively became due became personal property, but they became the property of the owners of the land, and not the property of the executors or. personal representatives of the testator. The judgment recovered by the appellant against Smith as receiver, was therefore a judgment against the estate of the testator, and placed the appellant in the position of a creditor of the estate. That position gave him a right to take proceedings to have the testator’s property applied to the payment of the debt as provided by law, and that right only. The question of the extent of the lien of the appellant upon the lands of the testator which became vested in his. four children, was presented to the court of appeals in the case of Platt v. Platt, 105 N. Y. 497, and it was there held that the judgment against Smith as receiver, was not a lien upon the lands of the testator; that the debts of a decedent can be ordered to be paid out of his real estate, or by his devisees, only in the way provided by statute, and that the devisees never came under any legal or equitable obligation to pay that judgment; and hence there was no legal basis for ordering that judgment to be paid out of their share of the real estate or its proceeds. As by the judgment appointing the receiver he was vested with no greater power than that of an administrator with the will annexed, that judgment gave him no title, as such, to the rents of the property, and the fact that he has collected them and has held them as an officer of the court could not have the effect of changing their character, or divesting the children of the testator of the right to such rents, and it became the duty of the court, upon it appearing that the sum collected by its officer was not the property of the estate, but belonged to the devisees under the will, to direct the receiver to pay it to such devisees. The fact that the parties to the action and the referee had apparently misapprehended the effect of the judgment and the right of the judgment creditor to payment out of the real estate, and that some of the parties to the action had at times expressed their willingness to have the judgment paid, would not estop them from claiming on its being ascertained that they were not bound to pay the judgment, that the moneys still in the hands of the receiver should be paid to them and not diverted to the payment of a claim for which they were not liable. The fact that the receiver collected a few small sums that were properly the property of the estate, would not justify the court in ordering those sums to be paid to the creditor, because under the order of the court he has already received the sum of $9,354.62 by assignment of the judgment recovered by the said receiver against the executors of George W. Platt, etc. As it appears from the evidence before us, that sum would largely exceed all of the assets of the estate of the testator that have come to the hands of such officer, which would be applicable to the payment of the appellant’s judgment.

E. S. Clinch, for appellant.

P. Merrill, for plaintiff, respondent.

W. J. Wilson, and W. R. Martin, for defendant, respondent.

“We are also of the opinion that the court was fully justified in granting leave to the parties to file exceptions to the referee’s report after the time had expired and that under the circumstances of this case to refuse such leave would have been a serious abuse of judicial discretion. On the whole case we think that no injustice has been done to the appellant and that the order appealed from should be affirmed with ten dollars costs and disbursements.”

Opinion by Ingraham, J.; Sedgwick, Ch. J., and Freedman, J., concur.

Order affirmed.


author:
The Court at General Term, said:
     Opinion Per Curiam.

text:
    ABBY S. MARTIN, Respondent v. HENRY CLEWS, Appellant.

      Examination of defendant to enable plaintiff to frame complaint—when not granted.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 6, 1888.
    Appeal from an order denying motion to vacate an order of examination of defendant before trial.
   The Court at General Term, said:

“The order of examination was made for the purpose of enabling the plaintiff to draw the complaint. The affidavit upon which it was made, shows that she claims an action for the conversion of personal property, or for the recovery of its possession. It is clear that she can frame a sufficient complaint. There is a suggestion in the affidavit that the defendant claims that he is entitled to possession of the property as security for money advanced by him. The affidavit however shows that the plaintiff’s property was delivered to the defendant without her consent or authorization. Take the affidavit as it stands, and it appears that there is no present purpose to yield to the defendant’s claim and to bring an action to redeem the pledge. If there were such a purpose, the examination of the defendant would not be necessary to enable her to draw a complaint.

The defendant to support her motion to vacate the order, presented his affidavit which gave in detail the amount of his advances to the husband of the plaintiff, who delivered the property as security. The plaintiff if she were entitled to an examination, could not be required to take in its stead an affidavit of the defendant. This suggests, however, that the defense, if there be one, is affirmative, and must be specifically pleaded; that when so pleaded the plaintiff will have opportunity to amend or to persist in her demand, as she shapes it in her affidavit.”

Abbott Bros., for appellant.

Martin & Smith, for respondent.

Opinion Per Curiam.

Order reversed, and order to vacate granted with $10 costs.


text:
    ELLEN A LYONS, as Adm’rx, &c., Respondent v. WILLIAM CAHILL, Appellant.

      Trial before court—necessity of requests to find—When appellate court will not look into testimony.

    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 6, 1888.
    Appeal from a judgment entered on the decision of the court.
   The Court at General Term, said:

“The important questions discussed by the appellant in his brief on this appeal are not before us because of the failure of the appellant to request the court to find certain facts. This court held in Kemple v. Darrow, 39 Super. Ct. 447, that a party who deems certain facts essential to his case must ask the court to find those facts. If the facts claimed to exist are not found, the appellate court cannot assume them to exist; and if there is no request to find them, the appellate court will not look into the testimony to see if it would have been error for the trial court to have refused to do what it was not asked to do. Sections 992, 993 and ,1023 of the Code of Civil Procedure, and Rule 32 of the Rules of Practice, contemplate that a party who desires the court to make findings and to review the error of the court, if there be any error, will present to the court before the decision is rendered, a statement of the facts that he deems established by the evidence, and refusal to make any finding in such a case is a decision upon a question of law, and if excepted to may be reviewed on appeal. The only point that we can consider on this appeal is, are the findings of fact to which the appellant has excepted, warranted by the evidence; and if they are warranted by the evidence, is the finding of law warranted by the facts which the court has found. An examination of the case shows that the findings of fact are warranted by the evidence, and that the trial court drew the right conclusion of law from the facts in the words. In the words of the court of appeals in Burnap v. The National Bank of Potsdam, 96 N. Y. 131, ‘much of the argument of the learned counsel for the appellant is founded upon the evidence in relation to facts not found by the court, and as to which no finding was requested. In such a case they cannot be considered for the purpose of reversing a judgment. With the facts before us found upon sufficient evidence, there is no error of law in the judgment appealed from.’ ”

Hassler & Sabine, attorneys, and Charles W. Hassler, of counsel, for appellant.

Leavitt & Keith, attorney, and John Brooks Leavitt, of counsel for respondent.

Opinion by Truax, J.; Sedgwick, Ch. J., and Dugro, J., concur.

Judgment affirmed with costs.


text:
    C. FAYETTE TAYLOR, Respondent v. THE METROPOLITAN ELEVATED RAILWAY CO., et al., Appellants.

      E'crated railroads—Rule of damages in actions against for injury to property.

    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 6, 1888.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial. For the facts of this case, see 50 Super, Ct. 311.
   The Court at General Term, said:

“The appellant contends that this judgment should be reversed because the court erroneously allowed the plaintiff to recover compensation for damages occasioned by noise made in constructing and operating the road, and contends that such noise does not constitute an interference with any of the easements appurtenant to the premises. This point has been decided adversely to the views of the appellant by this court in the case of Ireland v. The Metropolitan El. R. R. Co., 52 Super. Ct. 460, in which case it was held that damages may be awarded as compensation for injuries to easement caused by the noise resulting from the operation of the road; and as the court of appeals have not in any way modified this decision we are bound by it. The appellants also contend that the court erred in allowing evidence of the effect of the noise, and of the construction, maintenance and operation of the road upon the business carried on by the plaintiff in his premises. The true view of law in that respect was laid down by this court in this case on a former appeal, reported in 50 Super. Ct. 311. The charge of the judge was in harmony with the decision of this court in that case, and of the court of appeals in the case of Drucker v. The Manhattan Elevated Railway Co., 106 N. Y. 157.”

Davies & Sapallo, for appellants.

W. W. Badger, for respondent.

Opinion by Tbuax, J.; Sedgwick, Ch. J., concurred.

Judgment and order affirmed with costs.


author: The Court at General Term, held:

text:
    PHILIP KNOBLOCH, Appellant v. WILLIAM ZSCHWETZKE, et al., Respondents.

      Mortgage debt, assumption by grantee.—Knobloch v. Zschwetzke, 53 Super. Ci. 394,followed.—Morgan v. Smith, 70 N. T. 545; Palmer v. Purdy, 83 lb. 144, distinguished.

    Before Truax and Dugro, JJ.

      Decided March 6, 1888.
    Appeal from judgment and from order denying motion for new trial.
    The action was brought to recover damages alleged to have been sustained by plaintiff through defendants’ failure to perform their agreement to assume and pay a certain mortgage. The facts of the case will be found stated in the opinion of Sedgwick, Ch. J., in Knobloch v. Zschwetzke, 53 Super. Ct., 394.
   The Court at General Term, held:

“We concur in all that was then said by the learned chief judge. If anything, the plaintiffs case is presented more strongly now than it was then. The appellant does not seem to see the distinction between the case under consideration and those cited by him. In Morgan v. Smith, 70 N. Y. 545, and Palmer v. Purdy, 83 Ib. 144, 149, there was an express reservation by the. creditor of his rights and remedies against the sureties, and the circumstances were such as permitted such a reservation. But in the present case, the findings supported by satisfactory evidence show that the creditor’s claim was discharged.' The appellant claims that Bayliss on Sureties, p. 328, sustains his point that, “ if a surety pays in ignorance of the facts, and of a good defense, it is not voluntary, and he may recover of his principal.” If he will carefully read the authority he cites, he will find that the proposition he advances is there said to be true, only when the surety has so acted without negligence. In the case under consideration the duty of making inquiry rested with the plaintiff, and therefore care and caution in acting as he did cannot properly be claimed to have been exercised. We have examined all the other authorities presented by the appellant but consider them inapplicable to the case presented on this appeal.”

Charles Dexheimer, and Edward Whitney Hall, for appellant.

John P. Schmitt, for respondent.

Opinion by Dugro, J. , Truax, J., concurred.

Judgment affirmed with costs.


text:
    JAMES KENNY, Appellant v. THE CUNARD STEAMSHIP CO., Limited, Respondent.

      Negligence—Employer and employee—When foreman is fellow servant— Suitable appliances.

    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 6, 1888.
    Appeal from judgment, dismissing complaint, and from an order denying a motion for a new trial made upon the minutes.
   The Court at General Term, said:

“There was no testimony given which calls for another determination than that announced when this case was decided in a former appeal. Kenny v. The Cunard Co., 52 Super. Gt. 434. This action was for damages from the alleged negligence of the defendant. The plaintiff was hurt from boards slipping from a sling, upon him. The sling was placed around the boards by one Wright, who was a co-servant of plaintiff. The sling was an iron chain. It was agreed by the learned counsel for plaintiff that there was testimony to show that this claim was. not a proper appliance, or ordinarily fit for the use in this instance, for which the defendant had provided it. The plaintiff’s witnesses, however, testified that this chain would have been fit, if it had been hooked about the boards in a certain way. The servants in general and Wright in particular, knew how it should have been hooked, to secure safety. And for this no skill and only ordinary knowledge was requisite. There was therefore a failure to prove that the defendant had been negligent in furnishing for the work fit or proper instruments. The chain that was used being sufficient, it is not necessary to pass upon any point made as to another kind of chain, which some witnesses said was the proper chain to use.

Herman H Shook, for appellant.

Frank D. Sturgis, for respondent.

“ The accident, of the boards slipping from the chain, was caused by Wright tightening the chain, to a degree that was less than was required for safety. This was negligence on the part of a fellow servant, if negligence at all, for the consequences of which the defendant is not liable to the plaintiff. It is claimed however, the defendant co-operated with Wright in this negligence, and for that reason is liable. This is based upon' testimony that when Wright was proceeding to tighten the chain, and before it had been made safe, one Graham, a foreman of the gang, of which Wright was one, ordered him to let the chain go as it was. The respondent’s counsel answer that Graham was not performing any duty devolved upon the defendant by the law as to the plaintiff, but was himself a co-servant of plaintiff and of Wright. The learned counsel cites several cases, and among them Loughlin v. State of N. Y., 105 N. Y. 163. The cited case sustains the proposition. It says, 6 Wells, although captain of the boat with power to direct those under him, was, nevertheless, a co-servant within the rule. The manner of proceeding with the work was committed to Wells. It involved the exercise of such discretion and judgment only, as is committed to a foreman. It is not claimed that Wells was incompetent for his position, and no question as to the suitableness of appliances furnished by the state arises. It is the ordinary case of mismanagement by a co-employee of superior grade, as to the manner of prosecuting an ordinary work in which he and other employees, acting under him, were at the time engaged.’ ”

Opinion Per Curiam.

Judgment and order affirmed with costs.


author: O’Gorman, J. Per Curiam.

text:
    EDWARD CLARK, Respondent v. EDWIN W. ADAMS, et al., Appellants.

      Evidence—written contract, parol evidence adding to or affecting the meaming of, inadmissible.—Gontractfionstruction of; meaning of words ‘ ‘ available phosphoric acid ” in agreement to manufacture materials supplied.

      . Before Sedgwick, Ch. J., and Freedman, J.

      Decided May 7, 1888.
    Appeal by defendants from judgment entered upon the decision of a judge at special term.
    Action for an accounting on a joint enterprise.
    The facts appear from the following opinion of the court at special term:—
   O’Gorman, J.

The rights and obligations of the parties to this action must be governed by the terms of the written agreement between them.

The parol testimony offered on behalf of the defendants, as adding to or affecting the meaning of that agreement and admitted conditionally by the court must be rejected. Corse v. Peck, 102 N. Y, 515.

By the terms of that written agreement, the plaintiff Clark contracted to manufacture certain material supplied him by the defendants into “ available phosphoric acid.” There is nothing in that agreement providing that the phosphoric acid, when thus manufactured, should possess any quality other than that meant and described by the word, available.”

On delivery by plaintiff to defendants of the phosphoric acid, when thus manufactured by him, defendants sold it to a firm doing business in Bedford, Massachusetts, at a price agreed on between them. This firm, on examination of the phosphoric acid, refused to take it at the agreed price, on the ground that it was not equal in quality to a sample shown them, and was inferior in character. Subsequently, however, they agreed to take it on a reduction of the price, and did take it, and paid for it the price as reduced. This reduction of price was made with the assent of both the plaintiff and the defendants.

Jacob F. Miller, for appellants.

Hugh A. McTernan, for respondent.

This sale of the phosphoric acid is sufficient proof that it was “ available ” for one at least of the chief purposes for which the parties plaintiff and defendant made their agreement.

There is no evidence that the inferiority in the phosphoric acid as manufactured by the plaintiff was the result of any negligence on-his part. On the contrary, it appears that its inferiority was the result of inherent defects in the condition of the material itself, before the process of its manufacture into phosphoric acid was applied.

The loss caused by the reduction in the selling price should, in my opinion, have been borne jointly by the plaintiff and the defendants, in proportion to the amounts invested by each of them, and such was, I think, the manifest intention of the written agreement be-o tween them.

The plaintiff should, therefore, have judgment in his favor granting him the relief demanded in his complaint, with costs.

Per Curiam.

The reason assigned by the trial judge for refusing to dismiss the complaint was erroneous, but the ruling was correct. The action was for an accounting and the record shows that the counterclaim to which the plaintiff made no reply, was allowed to the defendants in the computation of the amount for which the plaintiff had judgment. ■ As to the merits, the opinion delivered by the learned judge at special term is correct. The record discloses no error and upon the whole case it appears that substantial justice has been done.

Judgment affirmed with costs.


text:
    GEORGE CAMPBELL, Appellant v. AMERICAN ZYLONITE COMPANY, Respondent.

      Corporations—Stockholders—In casé of assignment of stock and lurongful refusal of company to recognize assignee's rights or transfer stock on its books, assignor still has right to vote on stock transferred by him, and assignee has cause of action against company, but is bound by any lawful action of stockholders of record in the interim.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided May 7, 1888.
    Appeal by plaintiff from judgment in his favor.
    The facts appear in the following opinion of the court at special term :—
   O’Gorman, J.

On September 4, 1885, the plaintiff became the holder and owner of one hundred shares of the capital stock of the defendant company by purchase of the same for value. The title to this stock was derived from one Felt, who was then and continues to be the owner of record of the shares on the books of the defendant company.

The plaintiff, at the time of his purchase, received the certificate for the shares duly assigned by Felt in blank, together with a power of attorney duly executed in blank.

On October 19, 1885, the plaintiff made formal demand on the defendant company for the transfer of said one hundred shares to his name on the books of the company, and for the issue to him of a certificate of ownership of said shares, in place of that held by him and then offered by him to be surrendered. The defendant company refused absolutely and unconditionally to accede to this demand, or any part thereof, or to recognize the plaintiff as having any rights whatever by reason of his equitable ownership of said shares.

The defendant company was not justified in such absolute refusal, and a cause of action thereupon accrued to the plaintiff against the defendant.

The possession of this certificate, assignment and power of attorney in blank, did not, however, create any contract relation between the plaintiff and defendant, or any novation in favor of the plaintiff, of the original contract between the company and Felt, as holder of record on the books of the company, of these one hundred shares. On the contrary, Felt, while continuing to be holder of these shares on the books of the company, was, as to these shares, a member of the corporation with all the rights attaching to such membership, including the right to vote as a stockholder of said shares.

On May 22, 1885, before the purchase of these one hundred shares by the plaintiff, an agreement was entered into between the stockholders of the defendant company, to which agreement said Felt, representing these one hundred shares and voting as stockholder, assented, whereby certain new obligations were imposed on the stock of the company, including the shares, of which plaintiff was the equitable owner.

This agreement was not in itself bad or unlawful or beyond the power vested in the defendant by its charter and the law, and it was assented to and ratified by all the stockholders on record of the defendant corporation, including said Felt. Felt, as a stockholder, representing these one hundred shares, was bound by this agreement, as was also the plaintiff, whose title to the shares was derived from said Felt.

Wilmot & Page, for appellant.

Chas. Howard Williams, for respondent.

When, therefore, the defendant, after the commencement of this action, made tender to the plaintiff of a certificate of ownership of these one hundred shares, in the form and substance required by the said agreement, and subject to the obligations on said stock imposed by the agreement, it did then what it should have done before the commencement of the action, and plaintiff is entitled to demand no other certificate than that set forth in defendant’s answer as having been then tendered.

The defendant, however, having made the first fault by absolutely ignoring the rights and absolutely refusing to comply with the demand of the plaintiff, when made before the commencement of this action, was in the wrong and made this action necessary.

The plaintiff is, therefore, entitled to judgment for the relief demanded in his complaint, except in this, that the new certificate to be issued to him by the defendant shall be in accordance with the requirements of said agreement, and such as other stockholders have been and are entitled to by virtue thereof.

Per Curiam.

By the judgment appealed from the plaintiff obtained all the relief he was entitled to. The Record discloses no error.

The judgment should be affirmed with costs upon the opinion delivered by the learned judge at special term.


author: Per Curiam.

text:
    GEORGE ROUTLEDGE, et al., Respondents v. WORTHINGTON COMPANY, Appellant.

      Evidence—Parol evidence not allowed to add to or vary a written contract of sale required to be in writing by the statute of frauds.

    Before Freedman and O’Gorman, JJ.

      Decided May 7, 1888.
    Appeal from judgment entered upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      Anderson & Man, for appellant.

      Charles N. Judson, for respondents.
   Per Curiam.

The contract of sale was one which the statute of frauds requires to be in writing, and consequently no addition to, or variation of, the writing could be established by parol evidence. Under the operation of this rule the evidence offered by the defendant for the purpose of showing that it was part of the agreement that the plaintiffs should not lower their trade price of Dickens’ Works, was properly excluded. Brigg v. Hilton, 99 N. Y. 517, is not in point, because in that case there was no written contract.

In computing the amount for which the verdict was directed, the court gave to the defendant the benefit of all deductions which it could rightfully claim. Under these circumstances it was not error to refuse to permit the jury to assess the damages counterclaimed by the defendant.

Upon the whole case substantial justice seems to have been done, and the judgment and order appealed from should be affirmed with costs.


text:
    DeWitt C. Weeks, et al., Respondents v. William McCarty Little, Appellant.
    Decided June 23, 1887.
    Appeal from judgment entered in favor of plaintiffs against defendant.
    Jackson & Ingraham, for appellant.
    R. W. De Forest, for respondents.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
   Per Curiam.

The judgment should be affirmed on the opinion of the referee.


text:
    Thomas R. A. Hall, et al., Respondents v. Julius Lipman, Appellant.
    Decided June 23, 1887.
    Appeal from a judgment for the plaintiffs entered on a decision of the judge at trial term, on a trial without a jury.
    Thomas C. Enever, for respondents.
    Julius Lipman, for appellant.
    Before Freedman and Truax, JJ.
   Per Curiam.

The judgment appealed from is affirmed on the opinion of the court below, with costs and disbursements.


text:
    Robert C. Turner, Appellant v. Jacob Silberman, Respondent.
    Decided June 23, 1887.
    Appeal from judgment dis missing complaint.
    Hyland & Zabriskie, for appellant.
    Stern & Myers for respondent.
    Before Freedman and Truax, JJ.
   Per Curiam.

The reasons assigned by the learned Chief Judge for dismissing plaintiff’s complaint at the trial, are well founded. The judgment should be affirmed with costs.


text:
    Jacob B. Tallman, Appellant v. John H. Murphy, Respondent.
    Decided December 5, 1887.
    Appeal from judgment in favor of defendant upon verdict for him.
    James M. Smith, for appellant.
    Theodore F. Sanxay, for respondent.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
   Per Curiam.

Judgment affirmed with costs.


text:
    Mary McEvoy, as Administratrix, &c., Appellant v. The Manhattan Railway Co., Respondent.
    Decided December 12, 1887.
    Appeal from judgment.
    Gilbert R. Hawes, for appellant.
    Davies & Cole, for respondent.
    Before Freedman and Ingraham, JJ.
   Per Curiam.

At the trial the plaintiff wholly failed to prove the cause of action set forth in the complaint and consequently the complaint was properly dismissed. The judgment must be affirmed with costs.


author: By the Court.—Freedman, J.

text:
    William Watson, et al., as Trustees, &c., Respondents v. The Manhattan Railway Co., et al., Appellants.
    Decided January 3, 1888.
    Appeal by defendants from an order allowing plaintiffs to serve an amended complaint upon payment of $20 costs.
    Davies & Rapallo, for appellants.
    Burnett & Whitney, for respondents.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
   By the Court.—Freedman, J.

By the amendment allowed nothing was added to the complaint. The plaintiffs' obtained leave to withdraw a part. The effect was not to change, but to drop a cause of action. The complaint thereupon still contained a good and sufficient cause of action. The case of Ireland v. The Metropolitan Elevated Railway Co., recently decided by this court, is therefore not in point. In that case the object of the amendment sought was to substitute an equitable for a common law action and thus to avoid a dismissal of the complaint. The order should be affirmed with $10 costs and disbursements. Sedgwick, Ch. J., and Ingraham, J., concurred.


text:
    Mary L. Day, Respondent v. Joseph A. Jameson, et al., Appellants.
    Decided January 3, 1888.
    Appeal from judgment entered on verdict for plaintiff from order denying motion for new trial.
    Henry A. Root, for appellants.
    Daniel P. Hay, for respondent.
    Before Sedgwick, Ch. J., and Freedman, J.
   Per Curiam.

Judgment and order affirmed, with costs.


text:
    Richard G. Berford, Appellant v. The New York Iron Mine, et al., Respondents.
    Decided January 3, 1888.
    Appeal from order vacating an order directing service without the state.
    Roger M. Sherman, for appellant.
    Barlow & Wetmore, for respondents.
    Before Sedgwick, Ch. J., Freedman and In-graham, JJ.
   Per Curiam.

The appeal book does not contain the order of May 2, 1887, and we therefore cannot determine whether the learned judge who vacated it, did or did not commit an error in doing so. The order appealed from should be affirmed with $10 costs and disbursements.


text:
    The Merchants & Traders Bank v. James B. Colgate, Impleaded, &c.
    Decided January 3, 1888.
    Exceptions of the defendant Colgate taken at the trial, and ordered to be heard in the first instance at the general term.
    Wm. Allen Butler, for defendant.
    Nathaniel Meyers, for plaintiff.
    Before Sedgwick, Ch. J., and Ingraham, J.
   Per Curiam.

This case presents the same questions that are presented in the case of the Fifth Avenue National Bank v. Colgate (ante p. 541), and for the same reasons given in that case the exceptions are overruled and judgment ordered for the plaintiff on the verdict with costs.


text:
    James H. Goodsell, Respondent v. The Western Union Telegraph Co., Appellant.
    Decided January 3, 1888.
    Appeal from order of the special term denying defendant’s motion for a bill of particulars.
    Before Sedgwick, Ch. J., Freedman and In-graham, JJ.
   Per Curiam.

No points have been submitted on the appeal from this order ; nor is this appeal mentioned in the brief of counsel submitted on the appeal from the judgment. Our attention has not been called to any error committed in the order appealed from and we see no reason why the order should be reversed. The order appealed from should therefore be affirmed with ten dollars costs and disbursements.


author: Opinion by Dugro, J.

text:
    Ephraim B. Demarest, Appellant v. Justus J. Smith, Respondent.
    Decided March 6, 1888.
    Appeal from judgment. William C. Davies, for appellant.
    Theodore Dingeldein, for respondent.
    Before Truax and Dugro, JJ.
   Opinion by Dugro, J.

Judgment affirmed without costs if the defendants will consent to its reduction so as to be for $589.25; otherwise judgment reversed and a new trial ordered, with costs to abide the event.


text:
    In the Matter of The Application of Henry Jacoby.
    Decided March 6, 1888.
    Appeal by Henry Jacoby from an order denying his application for an order of alternative mandamus.
    Henry B. B. Staples, for appellant. Boeder & Bernard, for respondent.
    Before Sedgwick, Ch. J., and Truax, J.
   Per Curiam.

Order affirmed without costs.


text:
    Elizabeth Hall, Respondent v. Mary Sexton, Appellant.
    Decided March 6, 1888.
    Appeal by defendant from an order continuing a temporary order of injunction.
    Joseph P. Fallon, for appellant.
    Francis C. Reed, for respondent.
    Before Sedgwick, Ch. J., and Truax, J.
   Per Curiam.

Order affirmed with $10 costs to abide the event.


text:
    Hannah S. Brick, Appellant v. Robert Campbell, Respondent.
    Decided March 6, 1888.
    Appeal by the plaintiff from a judgment in favor of the defendant dismissing the complaint. The action was tried before the court without a jury.
    Jacob F. Miller, for plaintiff.
    George W. Van Slyck, ■ for defendant.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
   Per Curiam.

The questions in this case other than those that arise on the exceptions to the admission or rejection of evidence were before this court on the former appeal herein (54 Super. Ct. 305), and were then decided adversely to the present appellant. An examination of the exceptions that were taken shows that in view of the law of this case as laid ' down by this court, no injury was done to the appellant. Many of the questions excepted to were not answered so as to injure the appellant. Others were not answered at all. The judgment appealed from is affirmed with costs.


text:
    Patrick M. Hannigan, et al., Repondents v. Honorah Morrissey, Impleaded, &c., Appellant.
    Decided May 7, 1888.
    Appeal from a judgment entered on the report of a referee.
    M. A. Kellogg, for appellant.
    John W. Boothby, for respondents.
   Opinion by Truax, J.; Sedgwick, Ch. J., and Dugro, J., concurred. Judgment, so far as it relates to the third cause of action, is reversed, and new trial ordered with costs to appellant to abide event.


text:
    Charles A. Watkins v. The New York Central & H. R. R. Co.
    Decided May 7, 1888.
    Submission of case under section 1279, Code of Civil Procedure.
    Frederick Hemming, for plaintiff. H. E. Kenney, for defendant.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   Per Curiam.

There should be judgment for defendant with costs.


text:
    Robert Baxter, Respondent v. George C. Richardson, et al., Appellants.
    Decided May 7, 1888.
    Appeal by defendant from judgment entered upon verdict of jury.
    James M. Smith, for appellants. Edward C. James, for respondent.
    Before Sedgwick, Ch. J., and O’Gorman, J.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Joseph F. Cullman, et. al., Respondents v. Herman Colell, Appellant.
    Decided May 7, 1888.
    Appeal from judgment entered upon the report of the referee.
    M. L. Towers, for appellant. Samuel W. Weiss, for respondent.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   Per Curiam.

All the exceptions taken by the defendant during trial appear to be untenable. To the findings made by the referee, and his refusals to find, the defendant took but a single exception. It was to the conclusion of the referee from the facts found by him. The conclusion was correct. Judgment affirmed with costs.


text:
    Bertha Wuesthoff, et al., by Guardian, &c., and Emma Wuesthoff, Appellant v. The New York Life Insurance Co., Respondent.
    Decided May 7, 1888.
    . Appeal by plaintiff iron judgment dismissing complaint.
    Charles B. Meyer, for appellant. William B. Hornblower, for respondent.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   Per Curiam.

The decision by the court of appeals of the case of these plaintiffs against the Germania Insurance Company (MSS.) requires that the judgment below should be reversed and a new trial ordered with costs to abide the event.


text:
    Mart Howe, as Administratrix, &c., Appellant v. John G. Semon, et al., Respondents.
    Decided May 7, 1888.
    Appeal .from judgment dismissing complaint.
    James A. Hudson, for appellant. Edmund Coffin, Jr., for respondents.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   Per Curiam.

The judgment should he affirmed with costs.


author: By the Court.—O’Gorman, J.

text:
    AUSTIN P. BALDWIN, et al., Respondents v. THE STAMFORD MANUFACTURING CO., Appellant.

      Charter party—construction of—Demurmge.

    Where the charter party contains a provision: “ Twenty-five running clays are to be allowed the said merchants (if the ship be not sooner dispatched), for loading the vessel at port of loading, and for the discharge with the usual quick dispatch.”
    In an action brought by the owners for demurrage, Held that the charter party does not allow twenty-five days for discharging m addition to the same time for loading, but that.the vessel must be discharged with such quick dispatch as is usual under similar circumstances in port of discharge.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 7, 1888.
    Appeal from a judgment entered against the defendant, on the report of a referee, for $445.99, and costs.
    The action was brought by the assignee of the owner of a foreign ship, to recover from the merchant freighters in New York, demurrage for ten days, at the rate of eight pounds sterling a day.

      Wilcox, Adams & Macklin, attorneys, and Geo. Bethune Adams of counsel for appellant.

      Seward, Da Costa, & Guthrie, attorneys, and William D. Guthrie and James Hillhouse of counsel, for respondents.
   By the Court.—O’Gorman, J.

The material facts, as found, are these:—On November 4, 1884, the ship arrived in the port of New York. She was ready to discharge cargo on November 7. The cargo was not completely discharged until ‘November 24. The charter party contained this provision :—“ Twenty-five running days are to be allowed the said merchants (if the ship be not sooner dispatched), for loading the vessel at port of loading, and for the discharge with the usual quick dispatch.”

Defendant’s contention, that the proper interpretation of that clause is, that twenty-five days should be allowed for discharging in addition to twenty-five days also allowed for loading, cannot be sustained.

The only question is whether the vessel was discharged by the freighters in New York, with such quick dispatch, as is usual, under similar circumstances, in the port of New York.

The referee found that the freighters failed to exercise such usual quick dispatch; that the time which would have been required and sufficient to discharge the ship was not more than seven working days, and one fourth of a day; that is to say, from Friday, November 7, to Saturday, November 15; and that the ship was not in fact completely discharged until the afternoon of November 24, being nine and three-fourths days longer than was allowed under the charter party. The referee, in so finding, is sustained by sufficient evidence.

The object and intent of provisions in charter parties, such as that here in question, is to secure speedy release of the ship from her occupation in one voyage, so that she may be, as soon as possible, free to undertake another.

This is in the spirit of the maxim of Admiralty that a ship is made to plough the sea, and not to rot by the wall.”

The judgment below is sustained and affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


text:
    MARY F. AMES, BY GUARDIAN, &c., Respondent v. THE BROADWAY & SEVENTH AVENUE R. R. CO., Appellant.

      Infants non sui juris—Negligence.

    Parents and guardians are bound to use reasonable care to protect infants, non sui juris, and if they fail to exercise such care and the infant is thereby brought into danger and suffers injury from the negligent act of another, their negligence is deemed the negligence of the infant.
    In this case the mother allowed plaintiff, an infant five years of age, to play in a certain court having near and easy means of access into the street, telling her not to leave the door. The infant went into the street and was there injured through the negligence of defendant’s servant. Held, that the question whether or not this permission to the infant to play in the court, without continued supervision or protection against • her going outside the court into the street, was negligence on the part of the mother, was properly submitted to the jury.
    Before Freedman and O’Gorman, JJ.

      Decided May 7, 1888.
    Appeal from a judgment entered on the verdict of a jury in favor of plaintiff, at trial term, and from order denying motion for new trial made on the minutes, etc.
    The action was brought to recover $20,000 damages for personal injuries alleged to have been sustained through the negligence of the defendant.
    The plaintiff, an infant, under five years of age, while crossing University Place in March, 1884, between five and six o’clock in the evening, was run over and seriously injured by one of defendant’s horse cars. The jury found a verdict in her favor of $5,500. The learned trial judge left the question of the negligence of the defendant’s servants to the jury. As to the question of negligence on the part of the plaintiff, he held that if she had been sui juris, her negligence, as proved would have prevented her recovery, but that she, not being sui juris, by reason of her infancy, the question arose whether the negligence of her mother, under whose charge and control she was, constituted contributory negligence, and that question the trial judge left to the jury, as matter of fact. The defendant’s counsel moved for dismissal of the complaint; requested that the trial judge should direct a verdict for the defendant; moved for a new trial, and duly took exceptions to the rulings against him, and has appealed therefrom and from the judgment.

      Root & Strong, attorneys, and Theron G. Strong of counsel for appellant, on the questions considered in the opinion, cited:—
    Honesberger v. Second Avenue R. R. Co., 1 Keyes 572; Thurber v. H. B. M. & F. R. R. Co., 60 N. Y. 333; Wendell v. N. Y. C. & H. R. R. Co., 81 Ib. 420; Cosgrove v. Ogden, 49 Ib. 255; Mangam v. Brooklyn R. R. Co., 38 Ib. 455; Prendegast v. N. Y. C. & H. R. R. Co., 58 Ib. 652; Chrystal v. Troy & Boston R. R. Co., 105 Ib. 164.

      Lucius McAdam, attorney, and Christopher Line of counsel for respondent, as to the questions considered in the opinion, cited :—

      Kunz v. City of Troy, 104 N. Y. 344; Ihl v. Fortysecond St. R. R. Co., 47 Ib. 318; Mangam v. Brooklyn R. R. Co., 38 Ib. 455; Murphy v. Orr, 96 Ib. 14; McGuire v. Spencer, 91 Ib. 303; Fallen v. C. P. &c. R. R. Co., 64 Ib. 13; Cosgrove v. Ogden, 49 Ib. 255; Lynch v. Norden, 1 Ad. & Ell. (N. J.) 29.
   By the Court.—O’Gorman, J.

(after stating the facts as above)—The chief question now to be discussed is whether the issue, as to the .contributory negligence of -the plaintiff’s mother, should not have been decided by the court, as a question of law.

The learned trial judge was, in my opinion, right in refusing to do so.

The material facts are these: The infant plaintiff lived with her mother, on the first floor of a house in .Union Court, which was a court-yard opening on the west side of University Place, between East Eleventh and East Twelfth streets, and communicating with University Place, by a passageway, about nine feet wide. This Union Court was about thirteen feet wide, and contained a few houses, of which, that in which the plaintiff lived, was the second from the passageway leading to University Place. On the day of the injury to the plaintiff, she had asked her mother to let her go out, and her mother let her out a little while to play in the court-yard, then she came in again; then, she pressed her mother to let her out again for a little while. Her mother put on her hat and told her not to go from the door. The child said “ no, mamma.” Her mother told her to play about the front of the house there—not to go away from the door. The mother then left her, in order to attend to another of her children, and within five minutes afterwards, the information reached her that the plaintiff had been run over. The plaintiff had been accustomed to play in the court a good deal, but on this occasion, it appears that she went with another child, who lived in the court, to a candy store on the east side of University Place, and on recrossing that street in order to return to Union Court, the plaintiff was run over.

Did this evidence supply such proof of negligence on the part of the mother, contributing to the disaster, as required, or authorized the court to charge the jury, as matter of law, that such negligence had existed ? In my opinion, it was not negligence per se, in the mother to allow the plaintiff to play in the court. McGarry v. Loomis, 63 N. Y. 107. The important question is, whether the fact, that near and easy means of access into the street from the court existing, through which the plaintiff could stray into the open street, the permission given by her mother to her to play in the court, without continued supervision, or protection against her going outside the court into the street, was not negligence per se, on the part of the mother. Was it an. omission of such care as persons of ordinary prudence exercise and deem adequate to the circumstances of the case ? Mangam v. Brooklyn R. R. Co., 38 N. Y. 457.

Negligence is a question of fact, and should be left to the jury, as such, when men of ordinary prudence may differ as to the character of the act, under the circumstances of the case, the positions and conditions of the parties. Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y., 427.

In Kunz v. City of Troy, 104 N. Y. 350, the obligation of the parent of an infant non sui juris, is thus described :—“ The law exacts no impossibility. It does not require an infant, before reaching the age of discretion, to exercise discretion. But it imposes upon parents and guardians the duty of using reasonable care to protect those incapable of protecting themselves, and if they fail to exercise such care, and the infant is thereby brought into danger and suffers injury from the negligent act of another, their negligence is deemed the negligence of the infant.” In that case, the father left his infant son, for a few minutes, unattended on the sidewalk, which was there incumbered by fixtures taken from a store near by, and heaped on the sidewalk. One of these fixtures fell upon the child. The court of appeals' decided that the dismissal of the complaint was error, and that the case should have gone to the jury.

There is this similarity between the facts of that case and those of the case at bar. The permission of the father to the child to walk on the sidewalk, was not per se negligent. The question for the jury was, whether the fact that a part of the sidewalk was dangerous, and within easy reach of the child did not make the permission given, negligence.

The question of negligence in the driver of defendant’s car was also properly left to the jury.

The exceptions to the various rulings of the trial judge, are not well taken.

That part of the judge’s charge in which the use of the word “vigilant” occurs, and which is objected to, is similar to the charge of Judge Grover, in Mangam v. Brooklyn R. R. Co. (supra), page' 456, and was besides, so explained by the rest of the charge, as to be wholly unob j ectionable.

The judgment and order should be affirmed with costs.

Freedman, J-, concurred.


text:
    ANNIE M. B. HALSEY, Individually and as Executrix, Respondent v. THE TRADESMEN’S NATIONAL BANK OF THE CITY OF NEW YORK, IMPLEADED, &c., Appellant.

      Equitable action—as to changing after trial into an action at law and thereupon rendering judgment as if the action were one at law—Judgment so rendered, when not sustainable.—Exception to denial of general motion

      to dismiss made at the close of all the evidence, raises these questions on appeal.—Demand of jury not' necessary.—Action for money had and received is an action at law.—To such an action when brought to recover back money voluntarily paid by mistake, notification of the mistake and demand of payment are prerequisite.

    An equitable action based on allegations of fraud, deceit, deceitful influence, collusion, conspiracy and misleading, and praying for an account-, ing and payment to plaintiff of whatever might be found due, cannot after its trial at special term as an equity action, he changed into an action at law.
    A judgment in such an action as in an action at law, dependent on facts not alleged in the complaint, and as to which no issue was raised, no finding made, and no trial had, cannot be sustained.
    These points may be raised on appeal under an exception to the denial of a general motion to dismiss made at the close of all the testimony. It is not necessary that the motion should be stated to be made on these grounds. Nor is it necessary that defendant should demand a jury.
    An action for money had and received to and for the use of the plaintiff, is an action at law on contract triable before a jury.
    Where money is voluntarily paid by mistake, a notification of the mistake and a demand of payment back are prerequisite to an action for money had and received to recover it.
    Before Freedman and O’Gorman, JJ.

      Decided May 7, 1888.
    Appeal from a judgment rendered at special term in an equity action.
    The facts sufficiently appear in the opinion.

      Niles & Falls, attorneys, and W. W. Niles of counsel for appellant; on the questions considered in the opinion, and those decided, argued:—
    I. An action based on fraud must fail absolutely when the allegations of fraud are not sustained by the proof.
    People v. Dennison, 84 N. Y., 272 ; Barnes v. Gingley, 59 Ib. 265; Degraw v. Elmore, 50 Ib. 1; Dudley v. Scranton, 57 Ib. 428; Langdell on Equity Pleading, § 63; Stevens v. Mayor, 84 N. Y. 296; Bailes’ Trial Practice, p. 215, and cases there cited; Marshall v. Fowler, 7 Hun 237. The failure of proof herein was fatal.
    II. A judgment must he “ consistent with the case made by the complaint, and embraced within the issue.” Code, § 1207. “ When a complaint states only an equitable cause of action which the plaintiff fails to establish, the cause will not be held to enable the party to make out a legal claim.” De Buissierre v. Holladay, 4 Abb. N. C. 111; Hennequin v. Butterfield, 43 Super. Ct. 411; Oakville Co. v. Double Pointed Tack Co., 105 N. Y. 659; L. I. Bank v. Boynton, 105 Ib. 656. “ When a party alleges a cause of action of an equitable nature he must prove one, so far as the question of a trial by jury is concerned, and he cannot escape such tribunal by alleging an equitable cause of action and wholly failing to prove it, and obtain a trial by the court of a common law action arising out of the transaction.” Peckham, J., in Brinckerhoff v. Bostwick, 105 N. Y. 572. If an action in equity may be thus converted into one for a sum of money only, the constitution and §968 of the Code which guarantee a jury trial may be easily avoided by an astute pleader, by pleading facts and demanding relief in equity and at the trial proving facts, constituting an action at law, as described in § 968 of the Code; for whether a cause is to be tried by the court or a jury is determined upon the pleadings. In the case at bar defendant was deprived of any opportunity to insist on a jury trial, as on the pleadings it appeared that only issues of an equitable nature were to be litigated. The court in the first set of findings gave equitable relief, and a year or two later against defendant’s protest ordered a common law judgment simply.

      M. A. Kellogg, attorney, and Nelson Smith of counsel for respondent, on the questions considered in the opinion, and there decided, argued:—

      I. The appellant did not take the point on the trial that the gravamen of the action was fraud, and hence, cannot take it on this appeal. The rule is well settled that whenever an objection is made it should be accompanied with a statement of the ground on which it is based, and if no such statement is made, the objection will be unavailing. Fountain v. Pettee, 38 N. Y. 184; Valton v. Nat. F. Assurance Co., 20 Ib. 32. And where the objection is accompanied by a statement of the ground on which it is made, no other ground of objection will be listened to on the appeal. Newton v. Harris, 60 N. Y. 345; Blossom v. Barrett, 37 Ib. 434; Durgin v. Ireland, 14 Ib. 322.
    H. While the names of actions no longer exist, their substance does. We still have the action at law and suit in equity ; but it is not necessary for the pleader to declare that his complaint is in either form. It is only necessary that it should contain facts constituting a cause of action, and if such facts establish a title to the equitable interposition or aid of the court, it will be given by judgment in the same manner as it formerly would have been granted by decree, so the complaint may be framed with a double aspect. Stevens v. Mayor, 84 N. Y. 304. In that case the plaintiff, as alleged in his complaint, had been induced by fraud to execute a deed, and he brought a suit to recover the damages. It was purely a legal action, and having been beaten on the facts as respects the fraud, the judgment was against him.
    HI. In addition to this, all parties, including the court, treated this action as of an equitable nature on the trial. The defendant did not demand a jury, and did not suggest that he was entitled to a jury, or that the action was anything except of an equitable nature.. It is too late to make that objection noiv.
   By the Court.—O’Gorman, J.

This is an appeal by the defendant bank, from a judgment against it. for $17,946.42, entered on the decision of the court at special term, as money received by defendant for the benefit of the plaintiff.

The plaintiff brought her suit as executrix of Anthony Halsey, her deceased husband, and also as sole legatee under his will. The deceased had been for many years before his death cashier, one of the stockholders, and a director of the bank. At the time of his decease he was insolvent, being indebted to the bank in a large amount, and indebted also to some others who have recovered judgments against his estate. He had been in the habit of keeping all his valuable securities, and papers of value, in a safe in the bank building, and they were all in that safe at the time of his death. Among these securities were some, conceded to have been assigned by him to the bank, as collateral security for a part of his indebtedness. The proceeds of the sale of these securities by the bank amounted to $45,991.50, and about these securities, and the proceeds thereof, there is no question in this suit. The contention here is only as to the other securities of the deceased, which he kept in the same safe, and among his papers, which were not formally assigned by him to the bank in writing, but which the bank claimed to have been nevertheless held by him for the bank, and as security for payment in full of his debt to it.

This suit was brought in equity against the bank and against William M. Hoes, for some time the plaintiff’s attorney, and she alleged in her complaint, as the basis of her action, that by reason of the fraud and deceit of the defendants, colluding and conspiring together, she was induced to place, or allow to remain, or be placed, with her consent, in the possession of the bank, valuable securities and money belonging to her late husband, contrary to her duty, and her interests as executrix and sole legatee ; and she prayed for an accounting by the defendants of all moneys received by them, and that they pay the same over to her with interest.

The defendants answered separately, each denying all fraud, collusion, or conspiracy, and at the trial, the suit against the defendant Hoes, was dismissed with costs.

The bank in its answer, alleged that Halsey, at the time of his death owed the bank upwards of $80,000, being money which he had gotten from it while he was its cashier; that all moneys of the deceased in pas-session of the bank, which were the subject of this action, were paid by the plaintiff, voluntarily, to the bank on account of that indebtedness; and that after crediting the estate of Halsey with all such moneys, there still remained due and unpaid, by him to the bank, over $30,000.

The plaintiff’s charges of fraud, falsehood, and undue influence on the part of the bank, were unsupported by evidence, and her cause of action against it, as set forth in the complaint, was not sustained.

At the close of the evidence, the counsel for the bank moved for dismissal of the complaint. This motion was denied and exception taken, and therein, in my opinion, the learned trial judge erred.

The court permitted the plaintiff to amend the complaint on the settlement of the case. To this, also, exception was taken by counsel for the bank. It does not appear, however, that the amendment allowed, alleged any specific ground of a claim for equitable relief, other than such as had been set up in the original complaint. (Case, folios 549 and 550.)

The court found, as a conclusion of law, that the bank received the sum of $11,971.14, for the use of the plaintiff as executrix, and that she was entitled to recover that sum and interest, and judgment was entered against the bank for that amount with costs.

The attitude of the plaintiff, at the close of the case, was this: Her suit had been in substance and form, a suit in equity, triable before a judge sitting at special term. The only grounds on which she based her claim to equitable relief, were fraud, conspiracy, and deceitful influence, misleading her, by which she had been induced to pay into the hands of the bank, money, to the possession of which the bank was not entitled, and she, as executrix of her late husband, was entitled. The gravamen of the suit was fraud. No other cause of action was alleged in the complaint. Failing to sustain the charge of fraud, her whole case, on her complaint, failed.

The plaintiff’s claim for equitable relief on these grounds having failed, the question arises, on what finding of facts or evidence, the said conclusion of the court, in favor of the plaintiff, depends. It may be presumed to be on the claim of mistake on the part of the plaintiff, as to a material matter of fact, but that she was so mistaken, is not found by the court as a fact.

However, accepting that as the basis of her claim, as presented in its new aspect, and as her new cause of action, the question remains whether she should have been allowed thus to shift her position, and abandoning her suit in equity, have judgment, as in an action at law, in assumpsit, on contract, dependent on facts which she never alleged in her complaint, as to which no issue was raised, and no finding has been made, and, in fact, no trial was ever had.

If plaintiff, in a suit in equity, failed to sustain some of the charges on which she rested her claim to equitable relief, yet if the pleadings or the evidence disclosed other grounds for equitable relief, the court would no doubt be justified in granting it. But in the case at bar, the charges of fraud, etc., having failed, neither the plaintiff’s complaint nor the evidence disclose any ground for equitable relief, and the suit in equity wholly fails, and an amendment “ changing substantially the claim,” from one appealing to a court of equity, to one in assumpsit,” on contract, triable, of right, by a jury, should not have been allowed. Code Civil Procedure, § 723.

There is no doubt that an action for recovery of money received by defendant for the benefit of the plaintiff is an action at law, on contract, and triable before a jury. Chitty on Contracts, ed. 1874, 898; Code Civil Procedure, § 968; National Trust Co. v. Gleason, 77 iV". Y. 403.

The court in this case has not found that the' plaintiff was misled by any mistake of fact, and it is by no means clear that the evidence would have supported such a finding.

It appears from the evidence that in claiming and holding this money, the bank has been innocent of any improper act or intent, and was as much misled by mistake of fact or of law, as the plaintiff could have been. She voluntarily placed the money in the hands of the bank, for the purpose of paying her husband’s debt to the bank in full. The bank received it for that purpose and intent, and holds it now, subject to the decision of the court, when legitimately obtained, as to its rights and duties as pledgee or otherwise, on issues properly framed. In such cases, the plaintiff in an action for money received for her benefit, must first make demand of payment before bringing action. South wick v. First Natl. Bank, 84 JSí. Y. 430.

Looking at this case in all its aspects, the plaintiff was not, in my opinion, entitled to recover, and the judgment. should be set aside, and a new trial be ordered, with costs to abide the event of the action.

Freedman, X, concurred.


author: Hamilton Odell, Referee. Per Curiam.

text:
    JACOB LORILLARD, Appellant v. WILLIAM P. CLYDE, et al., Respondents.

      Actions by third parties on promises for their benefit, essentials of—General principles of agency, action against one on a contract made by another, when not sustainable under—Estoppel, when acceptance of performance does not operate as.

      To sustain an action by a third party (C.) upon a promise made for his benefit by a promisor (A.) to a promisee (B.) there must be: 1st. An existing claim against the promisee in favor of such third party; 2d. A liability of the promisor to the promisee; and, 3d. An engagement by the promisor to the promisee to discharge his liability to the promisee by the payment or satisfaction of the third party’s claim against the promisee.
    Where an agreement as executed is the personal contract of the party executing it, and not the contract of any other person, and the party executing it neither acted nor assumed to act as the agent of any other person, there is no general, or other principle of agency, under which an action on the agreement can be maintained against any person other than the party executing it.
    Where by the provisions of a contract one of the parties agrees that certain things shall be done on his part, which things can only be done by the act of a third party, and such party to the contract procures the third party to do those things, the other party to the contract by accepting the performance by such third party, of the things which the party contracting with him was obligated to perform, is not thereby estopped from denying the right of such third party to enforce a provision in the same contract to be performed by him for the benefit of such third party.
    Upon the above principles, Held, (1) that a cause of action did not arise in favor of the plaintiff’s assignee, The Lorillard Steamship Company, against the defendants, upon a provision in an agreement (not under seal) made by and between the plaintiff and defendants, that a corporation to be formed pursuant to the agreement should assume a lease made to The Lorillard Steamship Co., by the Philadelphia Steamship Dock Co., for rent paid by such lessee to the lessor under the lease. It did not arise under the principle of Lawrence v. Fox, because, assuming that by the agreement there was a promise or obligation of the defendants to the plaintiff to assume the lease, which was for the benefit of The Lorillard Steamship Co., yet an essential element to bring the case within the principle of that decision, to wit: an existing debt or obligation due from plaintiff (the promisee) to The Lorillard Steamship Co. (the third person), which the defendant (the promisors) by the agreement undertook to pay or perform, was wanting. It did not arise under the general principles of agency including therein the doctrine of an undisclosed principal, because in making the agreement Lorillard neither acted nor assumed to act as the agent of The Lorillard Steamship Company, and the agreement, as executed, was his personal one and not the agreement of that company. It did not arise on the principle of an estoppel flowing out of a full performance by The Lorillard Steamship Co., of certain acts and provisions required by the agreement to be clone and complied with and the acceptance thereof by defendants, because (among other reasons) that company was not bound to perform such acts, or to comply with such provisions, and the doing of those acts and complying with these provisions by the Steamship Co. was only a performance by Lorillard of his personal agreement to do the acts and comply with the provisions.
    (2) That plaintiff’s assignee, The Lorillard Steamship Co..' having no cause of action; none passed to plaintiff by its assignment to him; and the complaint was properly dismissed.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 7, 1888.
    Appeal from a judgment dismissing plaintiff’s complaint, entered on the report of a referee.
    The referee in rendering his decision delivered the following opinion, which sufficiently sets forth the facts of the case :—
   Hamilton Odell, Referee.

In May, 1874, Jacob Lorillard and W. P. Clyde & Co., in order to consolidate their respective interests in the Philadelphia and New York Transportation Line,” agreed together to form a corporation under the laws of the state of New York, with a capital of $300,000, of which the two contracting parties should hold equal shares. The whole of the capital stock was to be issued in payment for certain vessels, specifically named, of which Mr. Lorillard was to contribute two, and Clyde & Co. were to contribute nine. The agreement, which was to take effect on or before July 1, 1874, contained these two provisions:

1st. Ci W. P. Clyde & Co. to have the management of said corporation and business.”

2d. The corporation to assume lease of Lorillard’s Philadelphia wharf, and assume leases of piers 33 and 33 1-2 East river, New York, at present rental.”

The corporation contemplated by the said agreement was formed under the name of The Philadelphia and New York Steam Navigation Company; the said vessels were transferred to it; the capital stock was issued; Clyde & Co. assumed the management. The Philadelphia wharf above referred to, was, at the date of said agreement, held by The Lorillard Steamship Company, of which the said Jacob Lorillard (the plaintiff herein) was the president and substantial owner, under a lease to it from the Philadelphia Steamship Dock Company. It is charged in the complaint that Clyde & Co., though duly requested so to do, neglected and refused to have said lease assumed by the said Philadelphia and New York Steam Navigation Company, or to pay or cause to be paid the sum of $5,500, the annual rent of said wharf, which became due on the 8th day of April, 1875.” It is further alleged that in 1877 the lessor of the said wharf brought suit against The Lorillard Steamship Company to recover the said rent, which suit Clyde & Co. had notice of and opportunity to defend ; that judgment was rendered therein against said Lorillard Steamship Company, and was paid, and that the claim or cause of action of the said Lorillard Steamship Company against Clyde & Co., growing out of the transactions thus briefly alluded to, was assigned and set over to the plaintiff. He brings this action as such assignee.

The plaintiff’s first proposition is that Clyde & Co. covenanted with Jacob Lorillard that they, Clyde & Co., would cause the proposed corporation to assume the lease of the Philadelphia wharf and relieve the Lorillard Steamship Company from further liability for rent thereunder, and that such covenant is enforceable by said Lorillard Steamship Company under the rule declared in Lawrence v. Fox, 20 N. Y. 268. . That case has been the cause of many experiments in the courts, and productive of an abundant and odd lot of law suits. It has been explained and criticised and limited and questioned, but never, overruled. Thirty years have elapsed since it was decided, yet the principle upon which it rests is still a matter of uncertainty and dispute. It has been followed as a controlling authority in all cases present ing similar facts, but the doctrine of the case was established with difficulty and has been yielded to with reluctance (46 N. Y. 82), and the courts - have steadily refused to extend its application to new cases (82 N. Y. 385). “ We prefer,” Judge Finch says in Wheat v. Rice, 97 N. Y. 302, to restrict the doctrine of Lawrence v. Fox within the precise limits of its original application.” All that the case decides is “ that where one person loans money to another upon his promise to pay it to a third party to whom the party so lending the money is indebted, the contract thus made by the lender is made for the benefit of his creditor, and the latter can maintain an action upon it without proving an express promise to himself from the party receiving the money.” Allen, J., in Garnsey v. Rogers, 47 N. Y. 240.

A right of action does not accrue to a third party because a promise has been made by one to another for his benefit. There must be some obligation or duty owing from the promisee to the third party which would give the latter a legal or equitable claim to the benefit of the promise, or an equivalent from the promisee personally. This was distinctly held in Vrooman v. Turner, 69 N. Y. 280. The court said that “ in every case in which an action has been sustained there has been a debt or duty owing by the promisee to the party claiming to sue upon the promise. Whether the decisions rest upon the doctrine of agency, the promisee being regarded as the agent of the third party, who, by bringing his action adopts his acts, or upon the doctrine of a trust, the promisor being regarded as having received money or other things for the third party, is not material. In either case there must be a legal right, founded upon some obligation of the promisee, in the third party, to adopt and claim the promise as made for his benefit.”

It is argued by the learned counsel for the plaintiff that the only limitation put by the case last cited upon the broad rule of Lawrence v. Fox, is in requiring that the third party shall not be a stranger to the transac•tion, and that there shall be some privity between him and the promisee, whereby the latter will derive a benefit from the execution of the promise. Benefit to the promisee, however, is not the basis upon which any of these cases rest. It is the promise made for the benefit of the third party that the courts enforce, and the privity between him and the promisee which the law requires, is that which arises from some debt or duty due from the latter to the former, which the promisor engages to discharge. In other words, there must be, first, an existing claim against the promisee in favor of a third party, and second, an engagement by the promisor to discharge his own liability to the promisee by the payment or satisfaction of such claim. In the absence of either of these conditions, the doctrine of Lawrence v. Fox has no application.

I am unable to find in this case any debt or obligation due from Lorillard to his Steamship Company which the defendants, by the agreement of May, 1874, undertook to perform, nor is it claimed that any such existed.

The plaintiff’s second ground of contention is that the defendents became directly liable to The Lorillard Steamship Company upon this agreement upon “ general principles of agency.” It is not suggested that the agreement, as executed, is the agreement of the company, but the claim is, as I understand it, that certain provisions contained therein were inserted for the company’s benefit, and that, in respect of those provisions, Mr. Lorillard, in making the agreement, acted as the company’s agent and in its behalf. One of these provisions Avas that relating to the assumption by the proposed new corporation of the lease of the Philadelphia wharf. It is not alleged in the complaint that Mr. Lorillard, in anything that he did in connection with this transaction, acted or assumed to act as the agent of his Steamship Company. In respect of the lease, and to that extent, the complaint says “ that the said agreement was made in behalf of and for the benefit of the said Lorillard Steamship Company and the said Clyde & Co., in and by said agreement, undertook and agreed with and for the benefit.of the said Lorillard Steamship Company, that the said Philadelphia and New York Steam Navigation Company should, when organized, assume said lease,” etc. A similar allegation might have been, and probably was, made by Lawrence when he sued Fox upon the promise which Fox had made to Holly. The rule relied on by the learned counsel for the plaintiff, that a principal may adopt and enforce in his own name a contract made in his behalf in the name of his agent, is not denied, but it does not seem to be applicable here. The act of the agent—that is, the making of the contract in such a case—must be the act of the principal, and although the name of the principal may not appear on the face of the transaction, yet, as Judge Folder says in I. P. & C. Co. v. Tyng, 63 N. Y. 655, “ evidence will be -received to let in a party not apparent in the contract; ” and it makes no difference whether the principal seeks to enforce the contract, or the other party seeks to hold him liable upon it. Briggs v. Partridge, 64 N. Y. 357. But whenever the contract is the contract of the party who signs it, a third party, who claims to enforce one of its provisions on the ground that it was made and intended for his benefit, must seek his remedy, if he has any, in the way pointed out in Lawrence v. Fox.

It seems to me too plain to admit of serious dispute that the agreement of May, 1874, was the personal agreement of Mr. Lorillard. His counsel calls attention to the fact that “prior to the time of the going of the contract into effect, Mr. Lorillard received formal authority from the directors of the company to carry out the provisions of the contract.” There is a trifling inaccuracy in this statement, as will appear by reference to the proofs. The resolution of the directors was as follows: “ On motion of Jacob Lorillard it was resolved that the company shall sell the steamers Vindicator and Fanita to The Philadelphia and New York Steam Navigation Company for the sum of $170,000, and that /the president shall deliver proper documents or bills of sale for the same.” And also—“ That Jacob Lorillard shall sell ánd dispose of the steamers Mediator and North Point, or any other property this company may possess, at such times and such prices as he may see fit, and deliver proper documents and bills' of sale of same, and close up the affairs of this company and its indebtedness to himself.” This resolution was adopted on the 17th of June, a month after Lorillard had signed his agreement with Clyde. It does not appear that the nature, or even the existence, of that agreement was made known to the directors, and it would seem that it had then already been partially performed by the parties to it by the formation of the new corporation which it contemplated. Certainly there was nothing in the resolutions authorizing Mr. Lorillard to exchange the two steamers •first named for stock of such new company at par. The fact is, that there was very little of The Lorillard Steamship Company besides Mr. Lorillard. He owned nearly the whole of its stock and he controlled its action. He was its creditor in a large amount, and the hope of securing this indebtedness and the desire to close up an unprofitable business, were leading considerations in his trade with Clyde & Co.

The plaintiff’s third proposition is that the contract was fully executed by The Lorillard Steamship Company as to the part of the consideration to be furnished by it, and that the defendants, having accepted performance from the latter, are estopped from denying its rights to enforce so much of the contract as was intended for its benefit.”

This assumes, erroneously, as I think, that the steamship company was, in fact, a party to the contract, and bound to at least a partial performance of it. The language of the contract is, “ They (Lorillard and Clyde) shall form a corporation.” “ They (Lorillard and Clyde) shall contribute property.” “Jacob Lorillard puts in the steamers Vindicator and Fanita.” No part of the consideration was to be furnished by the Lorillard Company. That company incurred no liability under the agreement. Clyde could have had no complaint or remedy against it if Lorillard had refused to perform the agreement upon his part. It is true that the said steamers belonged to the company, and that the company conveyed them to the new corporation at Mr. Lorillard’s request, but clearly such conveyances were not made in fulfillment of any obligation assumed by, or resting upon, the company, nor can it be fairly said that they were accepted by Clyde or the new corporation otherwise than as a performance by Lorillard of his personal engagement. There is no pretense in the complaint that the steamship company did anything towards the performance of this agreement. On the contrary, it is substantially admitted that the transfer of the vessels was the act of Lorillard, the allegation being that “the plaintiff transferred, or caused to be transferred, to the said corporation the steamers mentioned in said agreement, as required by the terms thereof, and in all respects fully kept and performed said agreement and the conditions thereof on his part.” And in the action between these same parties in the city court of Brooklyn, in which plaintiff recovered judgment against these defendants for a large amount in 1883, one of the findings of the court on which that judgment was found was, that pursuant to this very agreement “ the plaintiff transferred to the said The Philadelphia and New York Steam Navigation Company the steamers Vindicator and Fanita mentioned in said agreement, and that 1700 shares of the stock of said company of the par value of $100 each, were issued to him therefor on or about June 20, 1874.”

It is my opinion that neither of the grounds of recovery contended for by the plaintiff is tenable, and the motion to dismiss the complaint is, therefore, granted.

Glover, Sweezy & Glover attorneys, Richard L. Sioeezy and Asa Bird Gardiner of counsel for appellant, on the questions considered in the opinion, argued:—

I. It is obvious that the clause in the contract respecting the assumption of the lease was an obligation on the part of William P. Clyde & Co. As the latter, under the terms of the contract, was to be placed in the exclusive control of the corporation, it is perfectly plain that it only could have the power, and upon it only could rest the obligation to perform this clause of the contract.

II. The contract was intended to enure, by both parties, to the benefit of The Lorillard Steamship Co., and the latter had, and the plaintiff as its assignee has, a legal status thereunder, upon the principle of Lawrence v. Fox, 20 N. Y. 268.

III. The right of The Lorillard Steamship Co. to sue upon the contract may also be maintained upon general principles of agency. The contract not being under seal, a suit upon it is not necessarily confined to the parties named therein. . The Code, § 449, expressly authorizes “ a person' with whom or in whose name a contract is made for the benefit of another ” to sue in his own name as trustee of an express trust, thus distinctly recognizing the principle contended for. And it has been frequently held that this section is permissive only, and that the party actually interested in or intended, to be benefited by the contract may maintain the action on his own behalf. Hubbell v. Medbury, 53 N. Y. 98 ; Considerant v. Brisbane, 22 Ib. 389 ; Morgan v. Reid, 7 Abb. 215; Erickson v. Compton, 6 How. 471; St. John v. Griffith, 2 Abb. 198. This is true, whether the fact that the person is acting as agent appears upon the face of the contract or not, and in no way conflicts with the principle that parol evidence cannot be admitted to vary the terms of a written contract. In such case the terms and conditions of the contract are not in dispute. William P. Clyde & Co. contracted with Mr. Lorillard, knowing to a certain extent he was acting in behalf of The Lorillard Steamship Company. The principle of law, however, would not have been different if the fact of agency had not been disclosed. An undisclosed principle may be held liable upon and may claim the benefit of written parol contracts made by his agent in his own name. Dykers v. Townsend, 24 N. Y. 57; Briggs v. Partridge, 64 Ib. 357. The rule is very clearly stated in the latter case where the court of appeals says it is settled law “ that the principal may be charged upon a written parol executory contract entered into by an agent in his own name within his authority, although the name of the principal does not appear in the instrument and was not disclosed, and the party dealing with the agent supposed he was acting for himself. And this doctrine obtains as well with respect to contracts which are required to be in writing as those where a writing is not essential to their validity.” A different rule applies where the contract is under seal. lb.

IV. Defendants also became liable to The Lorillard Steamship Company, upon the ground that the contract was fully executed by The Lorillard Steamship Company as to the part of the consideration to be furnished by it, and that the defendant, having accepted performance from the latter, is estopped from denying its right to enforce so much of the contract as was intended for its benefit. The steamers were conveyed by The Lorillard Steamship Company to The Philadelphia and New York Steam Navigation Company. In December, 1874, possession of this dock was delivered by The Lorillard Steamship Company to William P. Clyde & Company, and on April 3d, 1875, the lease, with formal assignment thereon by The Lorillard Steamship Company to The Philadelphia and New York Steam Navigation Company, stating that such assignment was made in pursuance of this very contract, was sent to William P. Clyde & Co. It would certainly be an anomaly in the law if William P. Clyde & Co. could be permitted to claim, under these circumstances, that The Lorillard Steamship Company was a stranger to this transaction, with no rights upon its part to enforce performance by William P. Clyde & Co. of the obligations which the latter assumed in return for the consideration thus received.

Boardman & Boardman, attorneys, and E. O. Board-man of counsel for respondents, on the questions considered in the opinion, argued:—

I. As the only cause of action that is set forth in the complaint is that the covenant to assume the lease was made for the benefit of The Lorillard Steamship Company and therefore came within the doctrine of Lawrence v. Fox; and as the plaintiff sets forth no cause of action except as the assignee of The Lorillard Steamship Company, the only question that will be considered in these points will be as to whether or not The Lorillard Steamship Company, under the facts proved, had a cause of action against the defendants.

II. The evidence submitted does not show a cause of action in favor of The Lorillard Steamship Company against the defendants under the principle of Lawrence v. Fox for the following reasons: 1. The Lorillard Steamship Company was not a party to the contract, and is not mentioned either in the clause in question or elsewhere in the contract. The wharf is referred to as Lorillard’s wharf,” and no mention is made of any interest of the company therein or in the lease. 2. There is no proof in the case showing that at the time the contract was entered into the defendants or either of them had any notice or knowledge that The Lorillard Steamship Company was interested in the property or in the lease, or that either of them'had any knowledge of the existence of such a corporation. 3. There is no proof that there was any debt or duty owing from Jacob Lorillard to The Lorillard Steamship Company which would enable The Lorillard Steamship Company to claim the right to enforce the promise.

An examination of the authorities will show that all these elements are essential in order to bring a case within the doctrine of Lawrence v. Fox.

Johnson v. Morgan, 58 N. Y. 496; Merril v. Green, 55 Ib. 270; Simson v. Brown, 68 Ib. 359; Garnsey v. Rogers, 47 Ib. 240; Vrooman v. Turner, 69 Ib. 283. The disinclination of the courts to extend the doctrine of Lawrence v. Fox appears in almost every case in which it is cited. Wheat v. Rice, 97 N. Y. 302; Pardee v. Treat, 82 Ib. 385 ; Ætna National Bank v. The Fourth National Bank, 46. 82; Turk v. Redge, 41 Ib. 201; Hutchins v. Miner, 46 Ib. 456; Merril v. Green, 55 Ib. 270; Simson v. Brown, 68 Ib. 356. There is no testimony in the case that any debt, duty or obligation was due or owing from the plaintiff to The Lorillard Steamship Company at the time the contract was made. The Lorillard Steamship Company is not named in the covenant in question, nor is it mentioned elsewhere in the contract, and there is no proof that either of the defendants had any notice or knowledge either of the existence of that corporation, or that the covenant in question might benefit it, or that it had any interest in the property or in the lease. Under this state of facts and under the authorities above cited it is clear that, as the plaintiff sets forth in the complaint no cause of action except one arising under the principle of Lawrence v. Fox, and as the defendants were called upon by the complaint to meet no claim except one arising under the doctrine of that case, and as the plaintiff in his proof has failed to show the elements necessary to bring him within the rule therein laid down, the referee was right in dismissing the complaint and the judgment should be affirmed.

Per Curiam.

The judgment should be affirmed with costs upon the opinion of the referee.