text:
    HENRY R. KIBBE and Others, Respondents, v. ROSALIE HERMAN and MAX HERMAN, Appellants.

      Attachment because of the fraudulent disposition of a debtor’s property—it cannot be sustained by proving that the debtor represented to the creditors that he had the property — actual ownership must be proved.

    Upon an appeal from an order, denying a motion to vacate an attachment, it appeared that the attachment was issued upon the ground that the defendants had fraudulently disposed of their property with the intent to defraud their creditors. In the affidavits, upon which the attachment was issued, charges or fraudulent representation and of fraudulent misappropriation of property were mingled.

      Held, that the attachment would not he upheld unless, in addition to the proof of fraudulent representation, the charge upon which the attachment was granted, namely, the fraudulent misappropriation of property to defeat the claims of creditors, was sustained hy satisfactory evidence of the debtors having been possessed of such property.

      Fleitmann v. Sickle (13 N. Y. St. R., 399) followed.
    That evidence of a sudden and unexplained disappearance of property, even when accompanied with a specific allegation of removal and disposition of it, does not establish a prima facie case for an attachment unless the possession and ownership of the property by the debtor is proved.
    That the distinction between the evidence relating to the representations as to property and those relating to the actual ownership thereof must, in cases of this character, he kept constantly in mind, in considering the charge of the fraudulent disposition of the property.

      That, as fraud is not to be presumed and must be proved, and the presumption is in favor of the honest use of the property, unless over-borne by the facts and circumstances disclosed, the affidavits in this case were not sufficient to show that the defendant actually had the property which he had represented to his creditor that he then had.
    That the order should be reversed.
    Appeal by the defendants from an order made at the New York Special Term, denying a motion to vacate an attachment, which was filed in the office of the clerk of the city and county of New York, on October 17,1888.

      H. A. Root, for the appellants.

      Blumenstiel & Hirsch, for the respondent.
   Brady, J.:

The attachment in this case was issued on the ground that the defendants had fraudulently disposed of their property with intent to defraud their creditors. The motion to vacate it was made upon the papers upon which it was granted. Three affidavits were presented for the consideration of the court, one of them made by Edward J. Chaffee, another by Lionel R. Gfeisenberger and the other by John J. Morris.

Mr. Chaffee, one of the plaintiffs, states that prior to the 2d of May, 1887, the defendants were engaged in the business of manufacturing cloaks, etc., in this city; that the defendant Rosalie Herman was represented by her husband, Isadore Herman, who conducted the transactions on her behalf with the firm; that on the 20th of April, 1887, Isadore called on him, and, stating that he was a little short of funds, requested .that' a check dated ahead, be accepted for the amoffnt of the bill then due; that Isadore then stated that the defendants were amply responsible, doing a good business, and that it was a simple matter of accommodation to have the payment of the bill in question postponed for a day or two, as they had more pressing obligations to meet; and this representation, so made, seems to have been the key-note of the application for the attachment. He further stated that they consented and accepted the check dated ahead; that subsequently, and on or about the twenty-fifth of April, another bill of goods matured, and Isadore again called, and, stating that the defendant had more than enough assets to pay all their debts and a large surplus besides, and that by the first of May they would be in ample funds to meet their obligations, requested that one check should be given for the amount of both bills, and the request was granted. Isadore further requested that the check dated April thirtieth should be deposited in the plaintiff’s bank on the afternoon of that day, then stating it would be positively paid on the following Monday. It also appears that the check was duly presented and not ¡laid, and that, on the second of May, the sheriff of the county took possession of the defendant’s store, rinder executions issu.ed upon four several judgments.

It is further stated that the business of the defendants was that of manufacturing cloaks, and the mode of doing it was to buy the cloth, etc., and manufacture the same, and that it was no part of their business to sell cloth purchased by them except as manufactured goods. The affiant then charges that the defendants, as he verily believes, to fraudulently dispose of their property, within the then past month sold large quantities of merchandise to the firm of Charles Rosenberg & Company, at less than cost prices;' and that they had an arrangement with the firm of Vietor ¡fe Achelis, a commission house doing business in this city, by which they consigned merchandise manufactured by them to that firm for sale and received advances on account thereof; that as late as Saturday, April thirtieth, on which day the defendants offered to allow judgment to be taken against them in favor of Mora Daniels, the defendants received a large payment of money on account of merchandise so consigned to the firm of Vietor & Achelis, the amount of which he is unable to give. He then avers that the money thus received has not been applied by the defendants to the payment of their just debts, as far as he can ascertain, and that he verily believes that the same has been appropriated by them to their own use, with intent thereby to prevent the same from being-applied to the payment of their bona ficle debts. He then charges that, in view of the statements made, the defendants had ample assets with which to meet all their debts and a surplus besides; and from the fact that within a week after making such statements they procured judgments to be taken against them, and having no funds on hand to meet the check given to the plaintiffs, and not having-suffered any extraordinary loss in the meantime by fire, robbery, etc., they had removed and disposed of their property with intent to defraud their creditors.

The substantial part of this affidavit would be very profitable, doubtless, in an application for an order of arrest; but it does not contain evidence establishing the fraudulent disposition of property which is essential to the maintenance of an attachment. There are charges and conclusions, but they are • argumentative or inferential, resting upon surmise and not upon facts justifying them, and are, therefore, wholly insufficient. The affidavit of Geisenberger has no greater strength in the respect named. For example, he says a sum of money was received from .Yietor & Achelis, the exact amount of which he is unable to give, and that, as far as he could ascertain, was not applied by the defendants to the payment of their just debts ; and he believes the same was appropriated to their own use with the intention of preventing the payment of their bona fide debts. It may be here remarked, in passing, that the absence of assets to meet maturing demands, the presence of which was expected on account of the statements made in reference to their existence, may result from the falsity of the statement that such assets were in the possession of the defendants. These representations, as before said, seem to have been the controlling feature of the application affecting the mind unfavorably and more readily leading to the conclusion that property was really possessed by them and fraudulently appropriated.

The affidavit of Morris contains an account of conduct on the part of Isadore Herman in reference to the debt due to his firm, kindred to that given by Mr. Chaffee, in which he distinctly states that he relied upon the representations of Isadore and accepted from the defendants a check, dated May 2,1887, which was presented and dishonored. He repeats the charge as to the business of the defendants, and that it was no part of it to sell cloth and materials purchased by them in the market and then avers, as his belief, that the defendants fraudulently disposed of their property and sold large "quantities of merchandise to Rosenberg & Co. at less than cost price. He also alleges, in view of the statements made by Isadore, that the defendants had ample assets with which to meet their debts and a surplus besides, so that his affidavit can only be regarded as cumulative evidence of the statements made in the affidavit of Cliaffee, and add nothing to its force. It will be observed that these charges are predicate of the truthfulness of the statement made by Isadore Herman, a criticism to be indulged upon the kindred charges made in the affidavit of Chaffee.

We have held, in the cases of Fleitmann v. Sickle and Cœsar v. Sickle (13 N. Y. St. Rep., 399), that in applications of this character, where charges of fraudulent representation and fraudulent appro priation of property are mingled, the attachment will not be upheld unless over and above the charge of fraudulent representations it appears that the ground upon which the attachment was granted, namely, the fraudulent appropriation of property to defeat creditors, is sustained by satisfactory evidence. • In these cases the starting, if not the controlling point, was the misrepresentation of the defendant as to his indebtedness,-which he underestimated; and that incident had a guiding influence upon the court granting the attach ment, as the fraudulent representations herein asserted seem to have had upon the court below. The present case and the cases cited, however, are kindred only in this — they both show satisfactorily that misrepresentations were made, and that there was a failure of proof of the fraudulent appropriation of property, indeed, a failure of proof that the defendants had it as represented. The learned counsel for the respondents have referred to a class of cases in which it has been held, perhaps, that evidence of a sudden and unexplained disappearance of property, particularly when accompanied with specific allegations of removal and disposition of it, puts the defendant to his answer and establishes a prima facie case for an attachment.

Assuming that these cases establish the proposition contended for, they have no application here, for the reason that they are predicate of the possession of the' property asserted to have been owned by the debtor, and of which there was evidence. The proof submitted in this case does not establish a similar state of facts. It does not appear, except by their representations, that thé debtors had property to the amount asserted by them. The difference between representations as to property and the actual ownership thereof must, in cases of this character, be kept constantly in mind in considering the charge of the fraudulent disposition of property. If it satisfactorily appeared that the defendants’ representations as to property possessed by them were true, a sudden and unexplained appropriation of it, apparently wrongful and also satisfactorily shown, would have its relative merit on the charge of improper disposition of it; but both factors must be established by evidence if they are to be employed jointly to procure an attachment. Fraud is not to be presumed; it must be proved. The presumption would he in favor of the honest use of the property, unless overborne by the facts and circumstances disclosed. The vicissitudes of business often invoke insolvency in a day, and honest merchants become bankrupt in the same time by the occurrence of one of the various and destructive disclosures which mark the period as one of danger in the credit realm.'

The order appealed from must be reversed, and the motion granted, with ten dollars costs and disbursements.

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

Order reversed and motion granted, with, ten dollars costs and disbursements.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    THE PRINCE MANUFACTURING COMPANY, Respondent, v. PRINCE’S METALLIC PAINT COMPANY, Appellant.

      The Supreme Oou/rt ma/y punish as a contempt the violations of an injunction wder issued in an action between two non-resident coipm'ations—it may do so even when the act, adjudged to be a contempt, was committed in another State.

    Upon an appeal from an order adjudging the defendant to be guilty of contempt for having violated an injunction order, issued in an action between two nonresident corporations to prevent the use of a trade-mark claimed by each of tlio parties, it appeared that the acts, which were held to constitute a violation of the injunction, consisted of a sale of'paint to a firm at Troy, 1ST. Y., another sale to a firm in Boston, and in having affixed the trade-mark to two car loads of paint at a place in Pennsylvania.

      Held, that as the court had acquired jurisdiction of the parties and the subject-matter of the action, and had restrained the defendant from doing certain acts mentioned in the injunction order, the fact that the parties were non-resident corporations did not prevent it from punishing the defendant for its violation of such injunction.
    The injunction prohibited the use of the name “ Prince” to designate or describe any article of paint now or hereafter manufactured, or sold or advertised, or exposed for sale by them, or either of them, and from inserting in the papers advertisements denying the right of the plaintiff to the use of the designation “ Prince's Metallic Paint.”

      Held, that the claim made by the defendant that the affixing of the trade-mark to the cars of paint in Pennsylvania was not a violation of the injunction, could not be sustained.

      Porous Plaster Company v. Seabury (1 N. Y. Supp., 134) distinguished.
    Appeal from an order made at a Special Term of the Supreme Court, adjudging the defendant guilty of a contempt in violating a preliminary injunction, which was entered in the office of the clerk of the city and county of New York on October 19, 1888.

      John Frankenheimer, for the appellant.

      J. Davenport, for the respondent.
   Brady, J.:

The parties to this action are -non-resident corporations. The action was brought to prevent the use of a trade-mark, the title to which is claimed by both parties. The preliminary injunction having been granted, it is to be assumed that the court had acquired jurisdiction of the parties and the subject-matter. Indeed, there -is no question about that circumstance. The asserted violation of the injunction which was held by the court below to have been committed, was a sale of paint to L. Burton & Co., at Troy, New York; another to J. S. Briggs & Co., in Boston, and affixing the trademark to two car-loads of paint at Lehigh Gap, in Pennsylvania. It seems to be established by the evidence that the sale to Burton & Co. was made in this State; and, assuming that the other sale and the affixing of the trade-mark mentioned were done in the States of Massachusetts and Pennsylvania, there is sufficient to justify the order declaring the injunction violated. Indeed, the real question in controversy between the parties, and the only one which it is .necessary to consider, is whether, the parties being non-residents, the court has jurisdiction to punish for a violation of the injunction granted. There can be no doubt that the courts of this State have general equitable jurisdiction, and can enjoin parties to a suit pending before it from bringing an action against the adverse party for the same subject-matter in a foreign court. It is the duty of the court to exercise this power, upon the presentation of a proper case, when it can be done consistently with the acknowledged practice in courts of equity. This power has been exercised for more than two hundred years. (Great Falls Mfg. Co. v. Worster, 23 N. H. [Foster], 462.) See, also, Wait’s Practice (vol. 2, p. 44), where the cases bearing upon .this proposition are collated. The court having acquired jurisdiction of the parties and of the subject-matter, and having, in the exercise of its jurisdiction, restrained the defendant from doing certain acts mentioned in the injunction order, there can be no doubt that, in reference to that order, as long as it exists, the court has jurisdiction to punish the defendant for a violation of its provisions.

The power to be thus employed is kindred to that by which the court may restrain the commencement of an action in a foreign court, and must necessarily exist in order to carry out the authority which the court acquires by the proper commencement of an action bringing the parties within its jurisdiction. If any other rule prevailed, the parties, by a mere change of' residence, in an action so commenced, could avoid the responsibilities entailed upon them by the exercise of existing and undoubted jurisdiction.

The proposition that the affixing of the trade-mark to the cars of paint at Lehigh Gap was not a violation of the injunction order, as illustrated by the case of the Porous Plaster Company v. Seabury (1 N. Y. Supplement, 134), is erroneous. The language of the injunction here is broader than in that case, and expressly prohibits “ the use of the name ‘ Prince ’ to designate or describe any article of paint now or hereafter manufactured, or sold, or advertised, or exposed for sale by them or either of them, and from inserting in the papers, advertisements denying the right of the plaintiff to the use of the designation ‘ Prince’s Metallic Paint.’ ” Therefore, the case cited is not controlling. Indeed, it may be said to have no application whatever to the facts developed in this case. It is objected, also, that the injunction order is not sufficient for the reason that it does not declare the conduct of the defendant to be such as to defeat, impair, impede or prejudice a right or remedy of the plaintiff. But this is not necessary, as determined in the case of Fischer v. Langbein, (103 N. Y., 84), where it was decided that if the papers upon which the Order rested contained facts showing that such would be the result, it would be sufficient; and that it was not necessary to recite the words of the statute i/psissimis verbis.

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

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

Order affirmed, with ten dollars costs and disbursements.


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    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ELLIOTT W. TODD, Appellant.

      The question as to the meaning of “gaming,” as defined in chapter 9 of title 10 of the Penal Oode, considered, — keeping a room where wagers are made as to the fluctuations in the price of stocks bought and sold in the New York Stock Exchange, as indicated by a stock quotation tieleer, does not violate section 843 of the Penal Oode.

    Upon an appeal from a judgment convicting the defendant of a violation of section 343 of the Penal Oode for keeping a room used for gambling, it appeared that the transactions, which were alleged to constitute gambling, related to the fluctuation in the price of stocks bought and sold in the New York Stock Exchange, as indicated by a stock quotation ticker in the defendant’s place of business, which was an open market, and so arranged that his customers could see the quotations which were recorded on a black-board and were correct statements of the dealings recorded in the stock exchange, and by which, if any dispute arose, it was to he settled.
    A person wishing to purchase a stock, named by him, deposited a margin with the defendant and received an acknowledgment in printed form, by which he was entitled to buy stock, if called for before the “ stock sells,........per cent below or five per cent above contract-price.” A similar form was received by persons wishing to sell before the “stock sold,........per cent above or five per cent below contract-price.” The blank, before the words “per cent” was filled in to correspond exactly with the sum deposited by the customer, which was generally one per cent. If the advance or decline were in favor of or against him the transaction was closed, either by the exhaustion of his margin, unless he enlarged his deposit, or the payment to him of his advance.
    The intention was not to deliver the stock, but to settle the advance which was caused by the fluctuation of the value or price as indicated by the quotations mentioned.

      Held, that although the contract was one of wager and not binding upon the parties, it did not violate the provisions of section 343 of the Penal (’ode, providing that “a person who keeps a room, shed, tenement, tent, booth, building, float or vessel, or any part thereof, to be used for gambling, or for any purpose, or in any manner forbidden by this chapter, is guilty of a misdemeanor.

      That the various provisions contained in the said chapter 9 of title 10 were intended to prevent gambling, in the ordinary acceptance of that term, by cards, dice or other symbols of chance or hazard, in places more or less private or secluded, and which, in itself, without reference to any other element, was malum prohibitum and malum in se.

    The object in view was to prevent the use of any place for playing or practicing any of the prohibited games or devices, or hazards or chances, fairly embraced within the purview of the statutes, and there was no intention manifest to include all matters of hazard, which might, by forced constructions, involve many legal transactions.
    Appeal by the defendant from a judgment of conviction rendered against him in the Court of General Sessions of the county of Yew York, on Yovember 15,1887, for keeping a room used for gambling.

      Freeling H. Smith and L. W. Emerson, for the appellant.

      McKenzie Semple, for the People, respondent.
   Brady, J.:

The transactions which were alleged to constitute gambling, under section 343 of the Penal Code, related to the fluctuation in the price of stocks bought and sold in the Yew York Stock Exchange, as indicated by a stock quotation ticker. The purchaser of a stock named by him would deposit a margin and receive an acknowledgment in printed form, with blanks properly filled, as follows:

“Mr.............:.......
“In consideration of $...... received, can buy of the undersigned, if called for before the stock sells......per cent below or five per cent above contract-price,......shares......at.......
“E. W. TODÍ).”

And, in case of a sale, a kindred document, with the necessary changes, as follows:

“Mr.....................
“In consideration of $...... received, can. sell to the undersigned, if delivered before the stock sells......per cent above or five per cent below contract-price,......shares......at......
“E. W. TODD.”

The blank before the words “ per cent ” was filled in to correspond exactly with the stun deposited by the customer, which was generally one per cent. If the advance or decline were in favor of or against him, the transaction was closed either by the exhaustion of his margin, unless he enlarged his deposit, or the payment to him of the advance. It was not a part of the scheme to deliver the stock, but to settle the difference which was caused by the fluctuation in value or price, as indicated by the quotations mentioned. These contracts, as stated by the learned trial judge, were not illegal per se, but might be if used and so intended as a mere disguise for gambling, for the reason that where an optional contract for the sale of property is made, and there is no intention on the one side to sell or deliver it, or, on'the other, to buy or take it, but merely that the difference should be paid according to the fluctuation on market values, the contract would be a wager within the statute. (Bigelow v. Benedict, 70 N. Y., 202; Story v. Salomon, 71 id., 420; Harris v. Tumbridge, 83 id., 92.) But it does not follow that a wager, though void and non-enforceable as a contract, constitutes a crime under chapter 9 of the Penal Code, or becomes a criminal offense under its provisions, and punishable as such.

The question here presented is distinctly whether the transactions mentioned are within these provisions. The appellant’s place of business is an open market, and so arranged that his customers can see the quotations which are recorded on a black-board, and are correct statements of dealings recorded in the Stock Exchange, and by which, 'if any dispute arise, it is to be settled. There is nothing dependent upon chance or device which the appellant can influence or control, so far as the record develops the modus operwndñ; and the difference, therefore, between his transactions and those of the Stock Exchange, consist in settling by fluctuations without a purchase or sale of- the stock. Assuming that it was not the intention of the customer or the appellant to buy or sell the stock embraced in the transaction consummated, and that the contract was one of wager and not binding, nevertheless it was not included in the category furnished by chapter 9 of title 10 of the Penal Code, entitled “ gaming.” The first section (336), relating to the subject under consideration, declares it unlawful to keep or use any table, cards, dice or other apparatus commonly used in playing any game, etc. Section 337 makes the violation of section 336 a misdemeanor, and section 338 makes the keeping of any article or apparatus, in violation of .section 336, a public nuisance. Section 339 declares it a misdemeanor to win by fraud while playing at any game; and section 340 provides that any person exacting anything won by cards, or any other game of chance, or any bet upon the hands or sides of the players, shall forfeit five times the value thereof. Section 341 provides that “ a person who wins or loses at play,.or by betting at any time,” the sum of twenty-five dollars or upwards within twenty-four hours, is punishable by a fine of five times the value or sum so lost or won, to -be recovered in a civil action; and section 342 provides for the attendance and privilege of witnesses. These sections separately and collectively relate to games, eo nomine, games of chance played and by cards, dice or faro, or any other game of chance, wholly fortuitous and not connected fin any way other than with the factors of the game itself, and illegal, pe se, without reference to the intention; an absolute hazard, not dependent upon legitimate fluctuations in legal business modes, and necessarily embracing only the playing of games of chance, as such, with table, cards, dice or other articles or apparatus, and the keeping of the same for such games of chance. It is quite manifest that these various provisions were intended to prevent gambling in the ordinary acceptation of that term by cards, dice or other symbols of chance or hazard, and in places more or less private or secluded, and which, in itself, without reference to any other element, was mal/um prohibitum and mahom in se. And section 343 — which is as follows : “ A person who keeps a, room, shed, tenement, tent, booth, building, float or vessel, or any part thereof, to be used for gambling or for any purpose, or in any manner forbidden by this chapter, or being the owner or agent, knowingly lets or permits the same 'to be so used, is guilty of a misdemeanor ” — was designed to punish for keeping a place where any of those games might be played—a place where any prohibited contrivance could be used or practiced. The word gambling, occurs in this section for the first time, and is undoubtedly intended to relate to the games prohibited in the preceding sections and to embrace them only. This is the more apparent from the language of the section —“ to be used for gambling, or for any purpose or in any manner forbidden by this chapter,” that is, to be used for gambling forbidden by this chapter, or to be used for any purpose forbidden by this chapter, or to be used in any manner forbidden by this chapter. The proper construction of this section leads to this result. The object in view was to prevent the use of any place for playing or practicing any one of the prohibited games or devices, or hazards or chances designated or fairly embraced within the purview of the statutes. There is no intention manifest of including all matters of hazard which, might involve many legal transactions by forced construction. There is an element of chance, of speculation, in all purchases which in the main are made for gain, and in which there may be either loss or profit to the parties, and perhaps both, for the seller may lose by selling too low and the purchaser profit by a good bargain. It must be observed, also, that the language employed consists of words of general import and designed to cover, beyond peradventure, all the prohibited games •—• a species of recapitulation in general terms. And when particular words are followed by general ones the latter are held to apply to persons and things of the same kind as those which precede. (Potter’s Dwarris on Stat., 236; Sedgwick on Stat. and Com. Law, 425.) The accuracy of this interpretation is enforced by. the provisions ot some of the remaining sections344, for example, declares what a common gambler is, and the three following sections provide for the seizure of articles suitable for gambling, specifying cards, dice, etc. And section 348 provides that a person who persuadeg another to visit any building used for the purpose .of gambling, in consequence of which such person gambles therein, is guilty of a misdemeanor, and in addition thereto is made liable to such person for the money lost at play. It will have been observed that the sections relating to the destruction of gambling devices specify cards, dice, etc., thus indicating what is meant by the word gambling; :and that by the last section mentioned the word is again inferentially •defined by providing for the recovery of money lost at play. Sections 349 and 350 have no application to the question discussed, and contain no provisions the consideration of which will aid in the solution of the question in hand.

The Penal Code, in reference to gaming, is substantially a re-enactment of the provisions of the Revised Statutes (see notes' to section in Donnan’s Annotated Code), and which were chiefly enacted before the introduction of many of the stratagems, devices and symbols which are now in use, and are the offspring of inventions similar to the stock quotation indicator, thus illustrating what is maintained by some philosophers, with cogent reason, that immorality and crime keep pace with intellectual development and travel hand in hand with science and progress — with civilization which enlightens for good and for evil as well. However this may be, the result of the examination of the statute under which the appellant was convicted is that it was aimed at all games of chance, and lotteries, and betting on horse-racing and elections, but not against the transactions which distinguish the appellant’s as one in the field of strategy if not in games. If the question were only whether the contracts made by the appellant were gambling transactions, there could be no doubt of the propriety of the judgment rendered herein, inasmuch as the evidence warrants the finding that they were mere disguises for gambling. (Cases supra.) Anri the appellant’s place of business would be one kept for that purpose, but the appellant was indicted under one of a series of sections relating to the subject of gaming, and designed to cover the methods, devices and hazards then in the legislative mind, and of which the transactions of the appellant form, it would seem, no part. He was held under one of the sections which relate to the subject expressed in and covered by them, and that section must' be interpreted by its relation to the whole context. The gambling inveighed against was such as the ordinary acceptation of that term included, unless otherwise expressed or particularized. The words of a statute are to be taken in their ordinary and familiar signification and import, and regard is to be had to their general use, and the intent is not to be collected from any particular expression, but from the whole act. (Potter’s Dwarris on Stat., 193.) Statutes are to be read acfeording to the natural and obvious import of their language. (Sedg. on Stat. and Const. Law, 260; Waller v. Harris, 20 Wend., 555-557; Martin v. Hunter’s Lessee., 1 Wheat., 326; Clark v. City of Utica, 18 Barb., 451.) It is cor-correctly insisted on this subject that the word gamble is a derivative of the word ga/men from the Anglo-Saxon gamen, which means, to play. And, accordingly, the word game ” is defined by Webster “ to play for a stake or prize; to use cards, dice, billiards or other instruments, according to certain rules, with a view to win money or other thing waged upon the issue of the contest; to practice playing for money or some other stake; to gamble!” And Worcester defines it to be “ to play at any sport, especially to play for money or any other stake; ” and Bouvier declares gaming to be a contract between two or more persons by which they agree to play by certain rules at cards, dice or other contrivance, and that one shall be the loser and the other the winner.” Here there was no contest to be decided, no game eo nomine to be played. The result was to be determined by such fluctuations in the legal disposition of securities as marked their value or their price by sale or purchase at the Stock Exchange, and the hazard was dependent, therefore, upon such lawful transactions as might occur in regard to the stock. We are not called upon to do more than to say whether the appellant was lawfully convicted under section 343 of the Penal Code, and that must be answered by the interpretation of that section as it stands, without .reference to any other statute or rule of law embracing such a crime, if any exist. The examination of the subject leads to the conclusion, however unfortunate that may be for the community, and however much it must be regretted, that the conviction was wrong and that it cannot, therefore, be sustained.

There can be no doubt of the objectionable, demoralizing nature of the appellant’s business. It cannot be other than just such traps for the unwary that the legislature hoped to prevent, but which has failed in consequence of the ingenuity displayed in the method adopted to frustrate such design. But it is not beyond the reach of that body yet, and it is to be hoped that prompt action will be taken to overcome the evil and to punish the offender by proper and comprehensive enactments. It is true that devices beyond the sphere of any statute may be employed, but they can be met and crushed by further legislation. Many subjects have required a multitude of statutes in England and in this country to root out the wrong inveighed against, and the result has been a success. The transgressor may have short intervals under such a system, but the day of punishment will come at last.

The judgment should be reversed and new trial ordered.

Yan Beunt, P. J., and Daniels, J., concurred in the result.

Judgment reversed, and new trial ordered.


text:
    THE NEWELL UNIVERSAL MILL COMPANY, Respondent, v. JANE B. MUXLOW, Appellant, Impleaded with Others.

      Action of claim and delivery of chattels— Gode of Oivil Procedure, secs. 1728, 3384— a defendant succeeding as to part of the chattels is entitled to costs.

    In an action of replevin the defendant asserted a claim to several of the chattels named in the complaint, and demanded an affirmative judgment for their return, or an award to her of their value, and denied, in her answer, that all the property named in the complaint-was owned by the plaintiff, and alleged that a portion of it belonged to another person who had purchased it from the plaintiff.
    Upon the trial the plaintiff succeeded in establishing title to some portions of the property and the defendant to the rest.
    Up.on an appeal from an order denying a motion to direct the clerk to tax the costs in favor of the defendant:

      Held, that, as the action was brought to recover chattels, the question as to costs was to be determined by section 3234 of the Code of Oivil Procedure, which provides that when “the complaint sets forth separately two or more causes of action upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues, and the defendant upon the other or others, each party is entitled to costs against the adverse party unless it is certified that the substantial cause of action was the same upon each issue, in which case the plaintiff only is entitled to costs."
    That as no certificate, such as is contemplated by said section, had been given in this case, the absence of the certificate established the right of the defendant to costs.
    That, in an action of this kind, both parties are actors or plaintiffs and are to be so treated.
    That the provision contained in section 1728 of the Code of Oivil Procedure, that the final judgment must award to each party the same relief, with respect to the findings in his favor, as if separate judgments were rendered, applied to this case and entitled the defendant to recover costs.

      Ackerman v. DeLude (36 Hun, 44) followed; Kilburn v. Lowe (37 id., 237) criticised and distinguished.
    Appeal from an order denying a motion made by the defendant to direct the clerk to tax costs in favor of the defendant, entered in the office of the clerk of the city and county of New York on June 27, 1888, upon a judgment entered upon the verdict of a jury after a trial at a Circuit Court.

      Edward P. Wilder, for the appellant.

      George P. Gordel, for the respondent.
   Brady, J.:

This is an action of claim and delivery. The plaintiff charged the defendants, four in number, with possession of the property. Two of the defendants only appeared. One of them disavowed possession and control of the property, and prayed only for a dismissal as to himself. Defendant, appellant, asserted a claim to several of the chattels named in the complaint, and demanded an affirmative judgment for their return or award to her. She denied, in her answer, that all the property was placed on the premises named in the complaint by the plaintiff, and averred that a portion was put there by a corporation known as the Colloseum Company, and that other portions thereof were placed there by a corporation known as the New Colloseum Company, who purchased the same from the plaintiff. She set up, as a defense, that the plaintiff had not the title to the property, having made an absolute sale of it, receiving payment therefor from the New Colloseum Company, and, for a further defense, that the property had been so affixed to the freehold that it became fixtures; and, further, that she had a lien upon the property by reason of the indebtedness of a tenant. The answer thus created several issues, some of them relating to the whole property and some to parts of it, and the controversy was presented in such form that verdicts might be found in favor of the plaintiff and the defendant, appellant, which actually took place. The plaintiff succeeded as to some portions of the property, and the defendant, appellant, as to the rest. The question presented on these facts is, whether the appellant is entitled to costs against the plaintiff on the verdict in her favor. Section 3234 of the Code provides as follows: In an action specified in section 3228 of this act, wherein the complaint sets forth, separately, two or more causes of action, upon which issues of fast a/re joined, if the plaintiff recovers upon one or more of the issues and the defendant upon the other or others, each party is entitled to costs against the adverse party, unless it is certified that the substantial cause of action was the same upon each issue, in which case the plaintiff only is entitled to costs. Costs to which a party is so entitled must be included in the final judgment by adding them to or offsetting them against the sum awarded to the prevailing party, or otherwise, as the case requires. But this section does not entitle a plaintiff to costs in a case specified in subdivision 4 of section 3228 of this act, where he is not entitled to costs, as prescribed in that subdivision.”

This action is plainly one of those mentioned in section 3228, being an action to' recover a chattel, and, as we have seen according to the provisions of the section quoted, where there is a recovery by the plaintiff and defendant each party is entitled to costs against the adverse party, unless* it is certified that the substantial cause of action was the same upon each issue, in which case the plaintiff only is entitled to costs. No certificate such as is contemplated has been given, and it is quite evident that it could not be in consideration of the issues presented, and which have been specially named, resulting from the averments in the answer of the defendant, appellant. It may be that the absence of the certificate mentioned, according to the provisions of the section just referred to, establishes the right of the defendant to costs. Indeed, there would seem to be no doubt about the propriety of that conclusion. But, to pursue the subject further, it is a well-established doctrine for which it is not necessary to cite authorities, that in an action of this kind both parties are actors or plaintiffs, and are so treated in consideration of the numerous questions which have arisen in controversies of this kind, hence the context of section 1728 of the Code as follows: “ Where the action is brought to recover 'two or more chattels, the verdict, report or decision may award to one party one or more distinct chattels, which can be identified and set apart from the others, and the.residue to the other party; and, if necessary, the complaint must be amended so as to conform thereto. The final judgment, rendered thereupon, must award to each party the same relief, with respect to the finding in his favor, as if separate judgments were rendered; except that, where, each party is entitled to an absolute award of a sum of money against the other the smaller sum must be deducted from the greater, and the balance must be awarded.”- The right of the defendant, however, to costs is not without authority expressly in point. The provisions of the Code bearing upon the subject are kindred to those of the Revised Statutes, and Justice Daniels in the case of Ackerman v. DeLude (36 Hun, 44), has considered elaborately the very question now under consideration. The conclusion that he arrived at and the result of his investigation are adopted as a clear exposition of the law on the subject. He cites and among others the case of Seymour v. Billings (12 Wend. 285).

In that case, which was one of replevin, the plaintiff charged the defendant in one court with talcing 25,000 feet of white pine boards. The jury rendered a verdict for some of them in favor of the defendant, assessing their value, and the rest to the plaintiff, assessing their value also, with six cents damages. Defendant’s motion for costs was granted. The learned justice said that effect must be given to the verdict in the same manner as though the declaration had contained two distinct counts for the respective parcels of boards, and that the costs must be disposed of as though the pleadings had been in technical special form. And, further, that the general rule in the action'for replevin was that each party should have the costs of the issues in which he succeeded, both being, as the learned judge said, considered as plaintiffs or actors. (See Crittenden v. Crittenden, 1 Hill, 360.) We are not unadvised of the decision in the case of Kilburn v. Lowe (37 Hun, 237); but in that case it appears that there was but one cause of action set forth in. the complaint; one issue of fact joined by the pleadings ; that the property was all taken on one occasion by a single act, and that no certificate had been given as contemplated by the Codo ; that the substantial cause of action was the same upon each issue. The court, in considering the question, however, séems to have overlooked the legal fiction that in actions of this character both parties are plaintiffs, and disposed of it upon the proposition that, as the plaintiff had but a single cause of action under the language of section 3234, he was not entitled to costs. The learned justice, in delivering the opinion of the court in that case, referred to the case of Ackerman v. De Lude (supra), and discussed it upon what was said in the opinion delivered to be a meagre report of the case. However this may be, we think that the case of Ackerman v. De Lude is a more correct view of the statute, and, therefore, accord to it the higher place in our estimate.

For these reasons, we think the order appealed from should be reversed and the motion granted, with ten dollars costs and the disbursements of the appeal.

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

Order reversed and motion granted, with ten dollars costs' and the disbursements of the appeal.


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

text:
    FREDERICK A. HEMMER, Respondent, v. WILLIAM A. HUSTACE, Appellant.

      Foreclosure by advertisement — the prohibition contained in section 2393 of the Code of Ovvil Procedure, against selling more lots than are necessa/ry, is absolute — when a title is unmarketable.

    pi an action brought by the plaintiff to recover damages arising out of the failure of the defendant to perform a contract for the conveyance of certain real property in the State of New York, it appeared that the defendant had purchased the property at a sale in proceedings for the foreclosure of a mortgage by advertisement. The premises were described in three several mortgages given by one Sichling to the defendant as “ all those three certain lots known and distinguished by the Nos. 212, 213 and 214 on a map entitled ‘map of the village of Melrose, South,’ etc., and which said lots, when taken together, are bounded and described as follows: ”
    In the map of Melrose referred to, the three lots were distinctly parceled out, and at the time of the making of the mortgage there were upon lot No. 213 a four-story brick store and a two-story frame house,| having no connection with each other, and each occupied by different parties.

      Held, that the premises were separate and distinct parcels and came within the prohibition contained in section 2393 of the Code of Civil Procedure, declaring that when the property consists of two or more lots they must be sold separately, and that as many only of the distinct lots shall be sold as it is necessary to sell, in order to satisfy the amount due at the time of the sale and the costs and expenses allowed by law.
    That, taking the whole context of the section into consideration, it was manifest that it was intended to be absolute and mandatory.

      Wallace v. Feely (61 How., 225; affirmed 88 N. Y., 646) distinguished.
    That as the record did not show that the sale of the entire property was necessary to realize and discharge the amounts due at the time of the sale, it became necessary for the defendant to establish the fact that the prohibition of a redundant sale did not apply to the proceedings under which he acquired his title; and that the purchaser was not required to accept a doubtful title.

      It appeared that Sicliling died on August 16, 1875, leaving a will, by which he devised an interest in the lot to his son, who was then about five years old, and who was an infant, in 1881, when the defendant acquired his title.

      Held, that as there was nothing to show that the infant heir of the mortgagor, who had not yet arrived of age, was cut off by any proceeding from his right to assai the defendant’s title, and as the title was open to a reasonable doubt, it was not a marketable title.
    That the court could not make it such by passing upon an objection depending upon a disputed question of fact, or a doubtful question of law, in the absence of the party in whom the outstanding right was vested.
    That the plaintiff was entitled to recover.

      Fleming v. Burnham, (100 N. Y., 9) followed; The Mutual Life Insurance Company v. Bronson (22 N. Y. Weekly Dig., 452) distinguished.
    Appeal from a judgment of the New York Special Term, entered in the office of the clerk of the city and county of New York on July 16, 1888, the action having been submitted -upon a statement of facts agreed upon by the respective parties.

      Walter S. Allerton, for the appellant.

      J. C. De la Mare, for the respondent.
   Brady, J.:

This action was brought by the plaintiff to recover damages for the failure of the defendant to perform a contract of conveyance to the plaintiff, of certain real property in the twenty-third ward of this city. The plaintiff insists that the defendant cannot give a good title, for the reason that he derives his from a purchase under foreclosure proceedings by advertisement and the sale of the premises covered by the mortgage in one parcel, when they were, in fact, distinct parcels, and should, under the provisions of the law, have been sold separately. The premises in question were part of lot No. 213, as indicated upon a map of the village of Melrose South. One Sichling, the then owner, made three several mortgages to the defendant, covering the premises and other property, describing them as “ all those three certain lots known and distinguished by the numbers 212, 213 and 214,” on a map entitled, “ Map of the village of Melrose South,” etc., and which said lots, when tahen together, are bounded and described as follows, etc. It appears that at the time of making the mortgages there were on the premises described in the complaint two buildings, one a -four-story brick store and a two-story frame house, both buildings being on lot 213 already mentioned, but having no connection with each other and occupied by different parties. It also appears that Sieh-Img died seized of the premises, but subject to the mortgages mentioned, on the 16th day of August, 1875, leaving a will, the provisions of which it is not necessary to state, but from which it appeared that in disposing of his estate he included in the objects of his bounty his son Herman Sichling, who, from the record, appears then to have been about five years and five months of age, and who was, consequently, an infant at the "time the defendant acquired title,-namely, in 1881. In the map of Melrose South, to which reference has been made, the three lots are distinctly parceled out which were covered by the mortgages to which reference has also been made, lots 213 and 214 being fifty-nine feet two and one-half inches front each on Cortlandt avenue, and lot 212 being fifty feet front on Denman street, now One Hundred and Fiftieth street. And the mortgage, upon the foreclosure of which the defendant acquired title, describes the premises as all those three certain lots, pieces or parcels of land known and distinguished by the Nos. 212, 213 and 214 on the map of the village of Melrose South, ” and which lots, when talcen together, were bounded and described as follows, etc. On these facts the question presented i/n limine, as suggested by Ingraham, J., in his opinion, was: Is there a reasonable doubt as to the vendor’s title such as to affect the value of the property or interfere with its sale to a reasonable purchaser ? And this inquiry springs from the well-established rule that the purchaser of real estate is entitled to a good marketable title, free from all reasonable doubt. (Methodist Church Home v. Thompson, 10 Cent. Rep., 506; Hellreigel v. Manning, 97 N. Y., 56 ; Jordan v. Poillon, 77 id., 518 ; Brooklyn Park Comrs. v. Armstrong, 45 id., 234; Fleming v. Burnham, 100 id., 9.) The premises, as we have seen from the map of Melrose South, and in the description in the mortgages, especially when considered with reference to the distinct tenements and their occupation by different persons, appeared, beyond doubt, to be separate and distinct parcels, and thus to have been within the prohibition contained in the provisions of the Code (§§ 1678, 2393). These sections were designed to prevent the unnecessary sale or sacrifice, or both, of property mortgaged, a circumstance which would doubtless occur were it not for these beneficient provisions of law still continued, by which apparently well-laid schemes are frustrated. Section 1678, which is designed to provide for judicial sales, declares that if the property consists of two or more distinct buildings, farms or lots, they shall be sold separately unless otherwise ordered by the court. (Wallace v. Feely, 61 How., 225 ; affirmed 88 N. Y., 646.) It has been held that this section was directory, but subsequently and by chapter 682 of the Laws of 1881, that section was amended by substituting the word “ shall ” for “ must,” and this would seem to be an indication, on the part of the legislature, to obviate the construction which has been placed on the word “must,” by pronouncing it to be directory merely in its effect. Section 2393, and which is one of the sections relating to foreclosure by advertisement, declares that “ if the property consists of two or more distinct farms, tracts or lots, they must be sold separately,” but has the further provision “ and as many only of the distinct farms, tracts or lots shall be sold as it is necessary to sell in order to satisfy the amount due at the time of the sale and the costs and expenses allowed by law,” although the word “must” is used in this section, and if its effect were to be construed in view of the decision to which reference has been made, it would be necessary to declare it directory; such a conclusion would not be justified, talcing the whole context of the section into consideration, and from which it is manifest that it was intended to be absolute and mandatory, as evidenced by the prohibition of the sale of any more of the farms, tracts or lots than necessary to satisfy the amount due at the time of the sale. The section, it may be said, with great propriety, is not only mandatory but prohibitory, its whole context considered together. There is nothing .upon the record to show that the sale of the entire property, presented as it was on maps and by description in the mortgages to consist of distinct and separate parcels, was necessary to realize and discharge the amount due at the time of the sale, and this is an indispensable factor in the defendant’s title. It became necessary for him to establish the fact that the prohibition of a redundant sale did not apply to the proceedings under which he acquired title. It is not necessary, in this case, to determine whether the sale was void or not when we have reached the point establishing a doubtful title, under the authorities to which reference has been made, and, therefore, in the administration of justice, it becomes our duty to declare the purchaser relieved from his obligation to complete, and in such an action as this to declare the plaintiff entitled to recover. However conclusive a judgment' may be where all the parties are before the tribunal pronouncing it, the court stands in quite a different attitude where it is called upon to compel a purchaser to take title under a judicial sale who asserts that there are outstanding rights and interests not cut off or concluded by the judgment under which the sale was made. The objection may involve a mere question of fact or it may involve a pure question of law upon undisputed facts. The purchaser, however, is entitled to a marketable title. A title open to a reasonable doubt is not a marketable title, and the court cannot make it such by passing upon an objection depending upon a disputed question of fact or a doubtful question of law in the absence of the party in whom the outstanding right was vested. (Fleming v. Burnham, supra.) There is nothing to show that the infant heir of the mortgagor hereinbefore mentioned, and who has not yet arrived at maturity, is cut off by any proceeding from his right to assail the defendant’s title — to challenge it by reason of the alleged invalid sale herein considered. The case of the Mutual Life Insurance Company v. Bronson (reported in 22 N. Y. Weekly Dig., 452), and upon which the appellant relies with great confidence, is not controlling herein upon the question presented in regard to the sale of the premises as one parcel. In that case the mortgaged premises consisted of ten city lots lying contiguous to one another and separated only by imaginary lines. In this case, as we have seen, the lines dividing the lots were distinct, palpable, not imaginary, and were characterized by different tenements, and, as we have suggested, and as has also been suggested, intended by the mortgagor to be regarded as separate and distinct parcels when the mortgage was executed. For these reasons, in addition to those assigned by the justice in the court below, we think the judgment appealed from should be affirmed, with costs.

Macomber, J., concurred.

Van Brunt, P. J.:

The question presented seems to be the same as that in the case of a decree of foreclosure expressly requiring the premises to be sold separately; a purchaser was asked to take title, the premises having been sold together in plain violation of the terms of the decree.

The statute is the decree under which the sale is had, and its due claim must be followed.

Judgment affirmed, with costs.


author: Brady, J.; Bartlett, J.

text:
    LAURIS TENDRUP, Respondent, v. JOHN STEPHENSON COMPANY (Limited), Appellant.

      Liability of a eoiporationfor its neglect of duties which it is bound to perform, without regard to the position of the agent performing them.

    In an action, brought by a carpenter employed in the car factory of the defendant, to recover damages for personal injuries which were alleged to have been sustained by reason of the negligence of the defendant, it appeared that the plaintiff worked on the first floor of the building, and, in the course of his employment, was called upon from time to time to go into the basement. The first floor, which did not wholly cover the basement, was open at one end, and in order to allow the. workmen to go up and down a wooden stairway was made for use between the first floor and the basement, and was placed with the bottom resting on the basement floor and the top resting against the beam which supported the boards of the first floor, the stairs being fastened below by„wooden cleats nailed to the floor, and above by means of nails.
    On the day of the accident the plaintiff, who was at work on the first floor, went down this stairway to the basement in order to saw some,boards, and after performing this task started to return by the same stairs. When he had nearly reached the top the entire steps fell under his weight and he was thrown backwards and knocked senseless. On that day the defendant, the president of the corporation, had directed a workman to change the position of the stairs about five feet, and the workman had done so, putting cleats around the bottom and securing it “good and fast.” The stairway was in this position when the plaintiff went down into the basement. Before he went up again another workman, who had been ordered to remove a bulky piece of machinery, changed the position of this flight of steps so as to get them down out of the way, but without any specified direction so to do. He then left them, unscrewed, only long enough to go a short distance for his hammer and nails, during which time the accident occurred.

      Held, that as the act of removing the stairway was authorized by the defendant the servant occupied the place of the corporation, and the latter was liable for the manner in which it was performed, and that a judgment, entered upon the verdict of a jury in favor of the plaintiff, should he affirmed. (Bartlett, J., dissenting.)

      Pantzar v. Tilly Foster Iron Mining Company (99 N. Y., 368); Berea Stone Company v. Kraft (31 Ohio St. 287) followed; Crispin v. Babbitt (81 N. Y., 516) distinguished.
    Appeal from a judgment entered upon the verdict of a jury, for $3,500 damages, rendered at the New York Circuit, and entered in the office of the clerk of the city and county of New York on November 17, 1887, and from an order denying a motion for a new trial, made upon the minutes of the justice presiding at the circuit, and entered in the same office on the 16th day of November, 1887.
    The facts in this case are fully stated in the dissenting opinion of Bartlett, J.

      William Allen Butler, for the appellant.

      J. Edward Swanston, for the respondent.
   Brady, J.;

It will be perceived on reading the opinion of Bartlett, J., that the act of removing the stairway was one authorized by the defendants ; the negligence of the so-called fellow-workman being his leaving the stairway without a guard or notice, and without being fastened, while he was seeking the means of finishing his work of removal. This makes a vast difference between this case and that of Crispin v. Babbitt (81 N. Y., 516), to which Justice Bartlett refers; in the latter case the injury was occasioned by an act with which the master had no connection, directly or indirectly, and was one of carelessness. The fellow-workman carelessly let on steam, and the plaintiff, was injured. The true rule, I apprehend, said Church, Oh. J., is to hold the corporation liable for negligence in respect to such acts and duties as it is required to perform as master, without regard to the rank or title of the agent intrusted with their performance. As to such acts, the agent occupies the place of the corporation, and the latter is liable for the manner in which they are performed. Here it appears that Jeblick, the fellow-workman, had been ordered by the defendants’ foreman to put a machine in position, to do which it was necessary to remove the stairs. They were removed,' and hence the accident, for the reason that they were not secured, of which the plaintiff was ignorant. The distinctions made by the cases bearing upon the obligations and responsibilities of employers for the carelessness of one fellow-workman resulting in the injury of another in the same common employment, are somewhat shadowy, and, therefore, difficult of application; but where the act causing the injury is an independent one, and done by order of the employer or his alter ego, as in this case, the liability of the employer seems to be settled, particularly when it is within the principle that he owes his servant the duty of furnishing him a safe and proper place to prosecute his work. (Pantzar v. Tilly Foster Iron Minimg Co., 99 N. Y., 368.) In addition to this, it may be said that the case of Berea Stone Company v. Kraft, 31 Ohio St., 287), and quoted by Earl, J., in his dissenting opinion in Crispin v. Babbitt (supra), exactly hits this case. Indeed, that opinion will be found sustained by authorities, the doctrines of which make the defendants here liable for the plaintiff’s injuries. I am decidedly in favor of the affirmance of the judgment.

Daniels, J., concurred.

Bartlett, J.

(dissenting):

There was sufficient evidence to warrant the finding of the jury in favor of the plaintiff, unless it ought to have been held that his injuries were sustained in consequence of the negligence of a fellow servant, for which the employer was not responsible.

The plaintiff was a carpenter employed in the car factory of the defendant. He worked on the first floor of the building, and, in the course of his employment, was called upon from time to time to go into the basement. The first floor did not wholly cover the basement, but was open at one end. In order to allow the workmen to get up and down, a wooden stairway was made for use between the first floor and the basement, and was placed with the bottom resting-on the basement floor, and the top resting against the beam which supported the boards of the first floor. These stairs were fastened below by wooden cleats nailed to the flooring, and above by means of nails. The plaintiff, who was at work on the first floor, went down this stairway to the basement in order to saw some boards. After performing this task he started to return by the same stairs. When he had nearly reached the top the entire stairway fell under his weight and he was thrown backward and knocked senseless.' There is no doubt as to what was the cause of the accident. The stairway had been constructed so that it could be moved from one place to another without much difficulty, and it had previously been moved several times, generally, however, if not always, for the purpose of getting it out of the way for the time being. On the day of the accident Hr. John Stephenson, the president of the corporation, -had directed a workman named Torgensen to change the position of the stairs about five feet, and Torgensen had done so, putting cleats around the bottom and securing it good and fast.” The stairway appears to have been in this position when the plaintiff went down into the basement. Before he went up again, another workman, named Jeblick, pried off the cleats, unfastened the stairs,- and after moving them about four feet put them up unfastened, but in the right position against the beam. Leaving them in this insecure condition, he stepped away a short distance to get his hammer and nails. Meantime the plaintiff, ignorant of what had happened, had partly ascended the stairway, and, before Jeblick was able to get back, the accident had occurred.

JSTo specific order to remove the stairs or interfere with them in any respect, had been given to Jeblick, but the foreman had told him to put a large, bulky machine, called a planer, in position, and to do this it was necessary to take the stairs away from the place in which they had been put by the direction of Mr. Stephenson. It was in consequence of this order to remove the planer that Jeblick undertook to change the position of the stairs. Upon this evidence, it was plain enough that the injuries to the plaintiff were the direct result of negligence on the part of Jeblick, a co-servant in the same employment. The learned trial judge, however, instructed the jury that if Jeblick, who moved the stairs, was guilty of negligence in the matter, his negligence was the negligence of the defendant; and he based this portion of his charge expressly upon the rule that acts which -the master, as such, is bound to perform for the safety and 'protection of his employees cannot be delegated so as to exclude the master from liability to a servant who has been injured by an omission to perform the act of duty. It is necessary to inquire, therefore, what obligation the defendant owed to the plaintiff in respect to the stairway which fell. A master owes his servant the duty of furnishing him a safe and proper place in which to prosecute his work. (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y., 368.) This includes the obligation to provide a safe and proper means of access to such portions of the master’s premises as the servant is called upon to go to in the course of his employment. The stairway in the present case, when fastened in place as it was evidently designed to be .at ah times when in use, was not only appropriate for the purpose it was intended to serve, but safe for the workmen who had occasion to pass up or down. The accident was not attributable to any defect in material or construction, but solely to the fact that the stairs had been left temporarily unfastened. I do not think it can fairly be held that the master, under the circumstances disclosed by the evidence, .failed to supply suitable instrumentalities for the safe-performance of the work required. But, says the learned counsel for the respondent, it was absolutely necessary for the protection and safety of the workmen that the defendant should not only provide a safe stairway, but that it should be kept at all times in a safe and secure condition. In the first instance, however, the defendant was not bomid to do more than to furnish a stairway which should be safe. This obligation was fulfilled. If proper care were used in the selection of skillful and competent workmen to assist the plaintiff in the performance of his duties — and there is no suggestion to the contrary—the fact that the negligence of bne of these co-servants had rendered the place where the work was to be done unsafe, did not impose any further duty upon the employer in the absence of notice, actual or implied. Upon being notified that the premises had thus been rendered unsafe, or after such a lapse of time that notice would be inferred, the master would become liable for a failure to maintain the safety of the structure, but not until then, if the place provided was safe and suitable at the ■outset, when the employment of the servant began.

There is no reason to suppose that the president, or any other ■officer of the defendant corporation, ever contemplated that the ¡stairway in question would be used by any of the workmen, except when it was securely fastened in position. It is not pretended or suggested that anyone ever directed or sanctioned its employment under any other circumstances. A fellow-servant of the plaintiff who had been ordered to remove a bulky piece of machinery, changed the position of this flight of steps to get them out of the way, but without any specific direction so to do, or, as he testified, out of Ms own idea entirely. He then left them, unsecured, only long enough to go some eight or nine feet for Ms hammer and nails, when the accident occurred; and it cannot reasonably be contended that this brief period of insecurity was sufficient to give the defendant notice that the stairway had become unsafe. To loosen the fastenings, as Jebliek did, move the steps a few feet and leave them in position, and, therefore, apparently secure, without warning to any one, was to set a trap for those who might have occasion to come from the first floor of the factory to the basement, or go from the basement to the first floor; but this trap was the contrivance of a co-servant, and- in no wise the result of that personal negligence on the part of the employer which is essential to the'maintenance of such an action as the present. (Cahill v. Hilton, 106 N. Y., 512.)

I think that the doctrine of Crispin v. Babbitt (81 N. Y., 516) applies, and that the act of Jebliek in moving the stairway was the act of a mere operative, in the course of his employment, and not in the performance of a duty resting upon the master. For his failure to secure the steps as he should have 'done, the defendant is no more legally responsible under the law to the unfortunate plaintiff, than a railroad company would be to one of its employees who was injured in an accident solely due to the negligence of a fellow-servant in leaving a switch unlocked.

In my opinion the judgment should be reversed.

Judgment affirmed.


author: Van Brunt, P. J.;

text:
    ELIZABETH D. VAIL, Respondent, v. WILLIAM M. REYNOLDS, Appellant.

      Motion to cancel and rescind an undertaking on appeal to the Court of Appeals — it will 'not be granted because the sureties did not know what they were signing when they executed the undertaking, or because they were under an erroneous belief as to the extent of the liability created thereby, induced by the acts of thevr own agents or attorney. e
    Appeal from an order of the New York Special Term, entered in the office of the clerk of the county of New York on June 15, 1888, denying a motion to cancel and rescind an undertaking given on an appeal to the Court of Appeals.
    The court at General Term said: “ Although the facts disclosed upon this application appear to present a case of great hardship to the sureties who executed the undertaking on appeal herein, this affords no reason for taking from the respondents the security upon which they received the undertaking on appeal, which stayed their proceedings upon the judgments appealed from. If such security is to he set aside upon the ground that the sureties did not know what they were signing when they executed the undertaking, or that they were under an erroneous belief' as to the extent of the liability created thereby, induced by their own agents or attorneys, or by the agents or attorneys of the judgment-debtor, having taken no pains themselves to ascertain the extent of their liability by the slightest examination of the instrument which they are to execute, then no judgment-creditor can ever be certain that his judgment is secured, although his proceedings are stayed by an undertaking in due form and executed by responsible sureties, because his security may be taken away from him by proof of occurrences which took place when he was not present, in which he took no part and which it is iuqiossible for him to disprove even if false.
    “ The learned justice who heard this motion in the court below, in the careful opinion he has written, has met all the questions raised on this appeal, and we see no reason to differ from the conclusions arrived at by him. The order appealed from should be affirmed, with ten dollars costs and disbursements, but as there may be some doubt as to the right of the sureties to appeal to the Court of Appeals from the order made by this court, such affirmance should be without prejudice to the bringing of an action to set aside such undertaking.”

      W. B. Hornblower, for the appellant.

      J. A. Deady, for the respondent.
   Opinion by

Van Brunt, P. J.;

Daniels and Bartlett, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements; such affirmance should be without prejudice to the bringing of an action to set aside undertaking on appeal to Court of Appeals.


author: Learned, P. J.:

text:
    JOHN B. GALE, Respondent, v. THE TROY AND BOSTON RAILROAD COMPANY, Appellant.

      Railroad company — not relieved from liability on its mortgage bonds by reason of its consolidation with another company.

    A railroad corporation, which has issued its bonds secured by a mortgage upon its railroad given to trustees, is not relieved from liability to an action to recover an amount due upon such bonds, by reason of the fact that a consolidation has been effected between such company and another railroad company, under which all the property of both corporations has passed into the possession of a new company.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered after a trial at the Rensselaer Circuit before the court without a jury.
    Three actions were brought under the above title, one to recover the interest due upon certain coupons attached to bonds which had been issued by the Troy and Boston Railroad Company; and were secured by a mortgage upon its railroad, issued to trustees to secure such indebtedness; the other two actions were brought to recover the amount due upon certain of the bonds themselves which were past due.

      R. A., Parmenter, for the appellant.

      John B. Gale, for the respondent.
   Learned, P. J.:

Three cases. Two of these are actions on unpaid bonds, passed due, of the defendant. The third is an action on unpaid^ interest of such a bond. The bonds are secured by a mortgage to trustees.

The defense is that subsequently to the execution of the bonds and mortgage, and in June, 1887, a consolidation agreement was executed between .the defendant and the Fitchburg Railroad Company, under chapter 917, Laws of 1869, the general consolidation act, by which the two companies were consolidated under the name of the Fitchburg Railroad Company. ♦

The defendant claims that the effect of that consolidation is such that - thereafter no action at law can be maintained against it for debts existing at the time of the consolidation. The ground is that thereafter all the property of both corporations vested in the new; that it would be unjust that creditors of the old companies should maintain actions by which nothing could be collected.

Section 5 of the act provides that a pending action against either of the consolidating companies shall not abate by the consolidation, but may be conducted to final judgment in the name of the existing corporation. It provides also that by order of the court the new corporation may be substituted. Hence it is evident, that without such order, an action pending at consolidation of the nature of those in question, could proceed to final judgment against this defendant. Thus it is manifest that the statute did not take away the right of action against the consolidating companies. If it had done so, the pending action would have abated. If a pending action is not to abate, it is reasonable to say that a similar right of action is not destroyed.

Again, the fifth section says that “ the rights of all creditors of * * * either of said corporations * ? * shall be preserved unimpaired and the respective corporations shall be deemed to continue in existence to preserve the same.” This language seems to be unequivocal. The right of a creditor is not preserved unimpaired when it is taken away. Before the consolidation this plaintiff had the right to sue and recover at law against this defendant. The defendant now says that such right was taken away by the consolidation. That seems to us directly contrary to the statute. ,

The defendant urges that because it has no property it cannot be sued on its debts. It is a new doctrine that when a debtor has assigned all his property for the benefit of creditors and has nothing, he has escaped all legal liability on his debts. If a man were sued on a bond, it would be an ingenious attorney who would set up as a .defense in the answer that the defendant had no projierty and, therefore, should not be harassed by a useless action.

A majority of this General Term have just decided that no action on these bonds lies against the consolidated corporation. If th<£ defendant is correct, then no action at law lies against anyone in these cases. In which event the rights of creditors would be very decidedly impaired.

Whether the legislature can destroy, or authorize debtors to destroy, the right of action of creditors to recover debts we need not decide, for it seems to us that they have made no attempt to do this.

Judgment affirmed, with costs in each case.

Landon and Ingalls, JJ., concurred.

Judgment affirmed, with costs in each case.


text:
    AMASA R. MOORE, Appellant, v. THE MANUFACTURERS’ NATIONAL BANK OF TROY and SAMUEL O. GLEASON, Respondents.

      Matter in mitigation of a libet,.

    In an action for libel, based upon the publication by the defendant of a bill of particulars, which related to a defalcation by the cashier of a bank, it is improper for the court, although the answer does not set up any facts in mitigation of the publication, to charge the jury that no circumstances in mitigation of the publication can be considered by it, as such a-charge would require the jury to disregard all the circumstances of the transaction which had been proved by the plaintiff himself.
    A communication, made by a bank to one of the sureties upon a bond given by its cashier for his fidelity in that position, in regard to an alleged defalcation on the part of the cashier, is privileged, and the mere fact that such communication was to the effect that the cashier had committed acts of defalcation by collusion with a third person, does not, as to such third -person, deprive such communication of its character as a privileged communication.

      In an action, brought by such third party to recover damages for an alleged libel contained in a bill of particulars served by the bank, it is not error to admit in evidence the pleadings in the action brought by the bank in which the bill of particulars was furnished.
    When the circumstances surrounding a communication are such as to confer upon it the character of a privileged communication, the presumption of malice ceases to exist, no matter what the nature of such communication may be.

      Marsh v. Ellsworth (50 N. Y., 809) distinguished.
    Appeal by the plaintiff from a judgment in his favor, entered upon the verdict of a jury rendered at the Rensselaer Circuit in February, 1888, for $200 damages, in an action brought to recover for an alleged libel published by the defendant, a banking corporation, of and concerning the plaintiff, by which it was charged that the plaintiff, who had been the teller of the defendant, had.been guilty of conspiring and colluding with one Charles M. Wellington, a cashier of the defendant, in abstracting or willfully misapplying the moneys and funds of the said defendant, and also from an order denying a motion to set aside a verdict on the ground that the damages allowed were insufficient.

      Matthew Hale, for the appellant.

      E. L. Fursman, for the respondents.
   Learned, P. J.:

This is an appeal by the plaintiff from a judgment in his favor on a verdict, and from an order denying a motion to set the verdict aside as for insufficient damages. The action was for libel. The complaint contained two counts. The first charged that the defendant published, concerning the plaintiff, a certain writing entitled a partial statement in detail,” etc., containing the false and libelous words, etc. It then set forth certain matters alleged to be libelous,-which charged that the cashier of the bank, by collusion with plaintiff, had drawn certain moneys. ''

The second count charged defendants with issuing a certain writing called a “ bill of items,” containing false and libelous words, and settting forth these words, which were the same with those in the first count.

The answer is to the whole complaint and is not special to each count. It avers that the cashier of the- bank gave a bond with sureties; that after his defalcation the bank sued the bond; that in such suit the bank served a bill of particulars, set forth at length, which, in fact, contains the alleged libelous words.

The answer further alleges in mitigation, that the bank served such bill believing it to be true, and without intent to injure the plaintiff, etc.

On the trial it appeared that, after the action against the sureties had been commenced, Judge Daniels, whose wife was an administratrix of one of the sureties and was a defendant, called at the bank for the particulars of their claim, and was there given the paper set up in the first-count. The plaintiff insisted and asked the court to charge thafy in regard to this publication, no circumstances of mitigation were pleaded and none could be considered by the jury. The court declined to charge in that form and the plaintiff excepted.

Now, it is true that the answer does not set up any facts in mitigation of this publication to Judge Daniels ; the language of the answer being confined to the bill of particulars. It may be, therefore, that no facts which had not been pleaded could have been proved. But no question seems to have been raised as to any offer of proof. The circumstances of the publication were proved by plaintiff, and it was only on these circumstances that any question of mitigation arose. To say that no circumstances of mitigation could be considered would be to say that the jury, in assessing damages, must disregard all the circumstances of the transaction which had been proved by the plaintiff himself. This would not be proper.

The plaintiff had proved 'not merely that defendants had published the libel, but he had proved how, to whom and to what extent they had published it. Now, to charge that the jury might not consider any circumstances of mitigation, would have directed them, if they chose, to punish the defendants as heavily as if they had given publicity in a newspaper to these charges of their mere voluntary act. The judge, therefore, properly declined to charge in that form.

The defendants claim that these papers were privileged communications, which. claim the plaintiff denies. This point should be considered.

In Klinch v. Colby (46 N. Y., 427), the proper meaning of a privileged communication is said to be “ that the occasion on which it was made rebuts the inference arising prima faoie from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice, in fact, and that the defendant was actuated by motives of personal spite or ill-will, independent of the circumstances in which the communication was made.” And again: “ A written communication between private persons, concerning their own affairs, is prima faoie privileged.” And again: When both the party making and the party receiving the communication have an interest in it, it has never been doubted that it was privileged.” (See, also, Ormsby v. Douglass, 37 N. Y., 477; Altwill v. Mackintosh, 120 Mass., 177.) It is unnecessary to cite other cases, as the rule is so clearly stated above. Row, under the definition thus given, it is plain that both the statement given to Judge Daniels and the bill of particulars were privileged communications. Indeed, we do not understand that the plaintiff claims that they were not privileged communications, so far as they referred' to Wellington’s acts. But the plaintiff insists that, where these communications stated that Wellington did these acts by collusion with the plamUff, they were not privileged as to plaintiff. It seems to us doubtful whether such a distinction can be made; for it will appear by the definitions that not the contents of the publication, but the circumstances under which it is made, give the privileged character. If the communication is not defamatory, then there is no need of asserting the privilege. But when the circumstances make the communication privileged, then the presumption of malice ceases, no matter what the language.

The plaintiff, on this point, relies on four cases: Hastings v. Lush (22 Wend., 410); Ring v. Wheeler (7 Cowen, 725); Gilbert v. People (1 Denio, 41); Marsh v. Ellsworth (50 N. Y., 309). These cases are all of the same character, and all refer to arguments of counsel in actions and the like. The principle laid down is stated in the last case, and, therefore, we need not examine the others: “ A counsel or party conducting judicial proceedings is privileged in respect to words and writings used in the course of such proceedings, reflecting injuriously upon others, when such words are pertinent and material to the questions involved; and within such limit, the protection is complete, irrespective of the motive with which they are used.” “The privilege under consideration, it will he seen, is much more extensive than in many other cases where communications are termed privileged, as in giving, the character of servants,” etc. “ In the latter the extent of the privilege is to repel the presumption of malice * * * and bar a recovery in the absence of proof of express malice.”

It is in regard to the privilege of counsel, as it is called, that it is said that it can only be claimed when the words are pertinent. Because that privilege is complete, irrespective of motive. Counsel are not liable even for actual malice, provided their words are pertinent. But, as is pointed out in the cas.e cited above, in the other class of privileged communications the privilege only throws on the plaintiff the burden of proving express malice. Hence, when we look at the definitions above given of such privileged communications, we find that it is the occasion on which the communication is made, and the interest of the parties in the subject which make 'such communications privileged. Nothing is said in those cases as to the language being pertinent or material, because the privilege is not complete, irrespective of motive, and any proper circumstance may be shown to the jury as evidence that there was express malice. But when the occasion and the interest of the parties are such that the communication comes within the definition above given, and, therefore, is privileged, then the prima faeie presumption of malice is removed. Now, in this case, both of these communications were made under such circumstances and between such parties that they were privileged, that is to say, not that defendants were free from every liability, whatever their motive, but that the circumstances removed the prima fade presumption of malice and threw on the plaintiff the burden of proving malice expressly.

In this view of the case, we think the plaintiff has nothing of which to complain. He rested his case simply on proof of the publication of these two writings under the circumstances which have been briefly stated above. It seems to us that on that proof these were privileged communications, that is to say, they were made under such circumstances that the presumption of malice, which ordinarily arises, did not exist. True, the defendants might have been more cautious and might not have explained the manner in which "Wellington took the money. True, also, that if the plaintiff could show express malice, the defendants would he liable, for they were not clothed with that privilege of counsel stated in Marsh, v. Ellsworth. They were only free from that presumption of malice which ordinarily arises from the publication of a writing injurious to another. But the court allowed the jury to inquire whether or not the defendants had acted with malice, or whether they had given these statements in good faith, even without proof of express malice. If it should be urged that the introduction unnecessarily of plaintiff’s name was, of itself, some proof of express malice, the plaintiff has had the benefit of that view and the jury have given him a verdict.

In the case of Prescott v. Tousey (53 Supr. Ct. [21 J. & S.], 56) it was held that the libelous matter in a bill of particulars was. absolutely privileged as being a step necessary in a legal proceeding. This case followed those above cited, which have principally arisen on arguments of counsel. If the plaintiff claims that the present case does not come within the protection of such absolute privilege, because the language affecting him was not pertinent, still the general right of privilege remained which has been explained in citations from Klinch v. Colby, and the burden of proving malice rested with the plaintiff.

We do not think it was error to admit the pleadings in the action of the Bank v. Enos and others, that being the suit in which the bill of particulars was furnished. The papers showed the existence and the character of the action in which such bill was furnished. It does not seem to us that the proof of the names of the directors of the' defendant was material in any way, and the admission was not such an error that a new trial should be granted therefor. There is a remaining question as to the adequacy of damages. The publication of the first paper was simply the giving of it to Judge Daniels. No other publicity was made by defendants. The publication of the second was by serving it on attorneys in the action. Certainly the publication in neither case was extensive. We see no reason to think that the jury erred in the amount which they awarded.

Judgment affirmed, with costs.

Landon and Ingalls, JJ., concurred.

Judgment and order affirmed, with costs.


author: Ingalls, J.: Tappan, J.:

text:
    SARAH C. SHELDON, Appellant, v. ABRAHAM W. HOFFNAGLE and Others, Respondents.

      Bquitable subrogation — right of a widow, by virtue of her dower interest, to redeem from a mortgage, to the foreclosure of which she was not a party—judgment.

    In an action, brought to recover dower in certain lands, it appeared that the husband of the plaintiff had purchased, during coverture, land upon which he had executed to his grantors a mortgage to secure the purchase-price. A junior mortgagee, in whose mortgage the plaintiff did not join, having purchased the premises under a foreclosure of his mortgage, paid up the prior purchase-money mortgage in order to protect his own title, and caused such purchase-money mortgage to be satisfied and discharged of record.

      Held, that, having paid the prior mortgage under such circumstances, he became equitably subrogated to, and entitled to enforce, the rights of the mortgagees in such purchase-money mortgage.
    That such rights were not affected by the fact that the purchase-money mortgage had been satisfied and discharged of record.
    That, inasmuch as the, plaintiff had not been made a party to any foreclosure suit, by which her right of dower in the premises was foreclosed, she was entitled, in equity, to redeem as against the said purchase-money mortgage.
    That, as this action was brought to recover dower in the premises on the assump- ■ tion that such purchase-money mortgage had been discharged, and had no existence as against the plaintiff’s right of dower, and the plaintiff showed no right to recovery upon such grounds, that judgment should be rendered for the defendants on the merits; without prejudice to the plaintiff’s right to maintain an action to redeem the premises from such purchase-money mortgage, and upon such redemption to recover her dower interest therein.
    Appeal from a judgment dismissing the plaintiff’s complaint, entered in the Essex county clerk’s office on the 1st day of June, 1888, after a trial at the Essex County Circuit before the court without a jury.
    The action was brought to recover dower in certain lands in Willsborough, in said Essex county. The defendant claimed under a foreclosure of a junior mortgage on the premises (to which the plaintiff was not a party) given by the plaintiff’s husband; and also asserted a right, by way of equitable subrogation, under a prior purchase-money mortgage given by the husband on the purchase of the premises by the husband. The plaintiff in this action had not been made a party defendant to the action for the foreclosure, or to any other proceeding which barred her dower interest in the premises.

      B. Pond, for the appellant.

      Richard L. Hand, for the respondents.
   Ingalls, J.:

The decision by the court at Special Term was quite as favorable to the plaintiff as the facts and law would warrant, and the judgment entered in the action should be affirmed, with costs. The reasons assigned by the learned justice who tried the action, as they appear in his opinion, are so far satisfactory as to render it unnecessary to further discuss the- questions' involved. Neither the facts or the law establish, in favor of the plaintiff; any right or equity superior to that which the judgment herein secures to her.

Tappan, J.:

This is an action to recover dower; the trial was had before the court, without a jury; the facts upon which the rights of the parties depend are stated in the findings of fact upon which judgment is ordered, and are restated in this opinion.

The lands from which plaintiff claims dower were purchased by Oscar F. Sheldon, her husband, during coverture, and he executed a mortgage to his grantors for and to secure the full purchase-price. As against the mortgagees in such mortgage, or those claiming under them, although she did not unite in such mortgage, plaintiff is not entitled to dower. (3 R. S. [7th ed.], 2197, § 5 ; Brackett v. Baum, 50 N. Y., 8.) Edmund Hoffnagle did not purchase the property described in the complaint, of Oscar F. Sheldon, and promise to pay this purchase-money mortgage as part of the consideration of his purchase. He had debts against said Sheldon, secured hy a junior mortgage upon the premises covered hy such original purchase-money mortgage; he paid upon such last mortgage, in the first instance, by virtue of a privilege given by his mortgage to preserve his security; and, after he had bid in the premises upon the foreclosure of his own mortgage, he paid up the purchase-money mortgage, as-allowed by the decree in the action brought to foreclose his mortgage, to protect his own title, and caused such purchase-money mortgage to be satisfied and discharged. Having paid under such circumstances, he became equitably subrogated to the rights of the mortgagees in the purchase-money mortgage, notwithstanding that mortgage was satisfied and discharged; and he and the defendants who derive title from him claim under such mortgagees, and as against the plaintiff’s claim for dower in the premises, they have the same rights as such mortgagees in possession would have. As to right of subrogation, see Thomas on Mortgages ([2d ed.], §§ 451, 452, 453); Hyde v. Tanner (1 Barb. Supr. Ct., 76); Runyan v. Stewart (12 id., 537); Barnes v. Mott (64 N. Y., 397, 401); Popkin v. Bumstead (8 Mass., 490, 493); Barnes v. Camack (1 Barb. Supr. Ct., 392, and cases there cited); De Lisle v. Herbs (25 Hun, 485). Some of these cases show that it is not decisive of the equitable right of subrogation that the mortgage was discharged instead of assigned to Edmund Hoffnagle; that, because the proper equitable protection of his rights and interests require the mortgage to be kept alive, all rights under it will survive and be enforced in an equitable action like this. Plaintiff was never made a party to any action or proceeding to foreclose her right of dower in the premises. She is entitled, in equity, to redeem as against the said purchase-money mortgage. (Denton v. Nanny, 8 Barb. Supr. Ct., 618, 623 ; Mills v. Van Voorhies, 20 N. Y., 412 ; Bell v. Mayor, 10 Paige, 49; Brackett v. Baum, 50 N. Y., 8, 11, 12; Gibson v. Crehore, 5 Pick. [Mass.], 145 ; S. C., 3 id., 475.)

This action was brought to recover dower in the premises, on the assumption that such purchase-money mortgage had been discharged and had no existence as against the plaintiff’s right of dower. Plaintiff shows no right to recover in this action. Defendants should have judgment upon the merits, without prejudice to plaintiff’s right to maintain an action to redeem the premises from such mortgage, and, upon such redemption, to recover dower.

Judgment is ordered accordingly.

Learned, P. J., and Landon, J., concurred.

Judgment affirmed on opinion of court below.