text:
    CHARLES A. M. ESTES, Plaintiff and Respondent, v. WILLIAM W. BURNS, Defendant and Appellant.
    Under the act for the formation of manufacturing and mining corporations, of 1848, one of the trustees who is a creditor of the company cannot recover his debt from a co-trustee, because of the failure of the company to make and file the annual report required, by statute. The penalty for this neglect attaches to all the trustees, and one of them cannot claim the same as against the other.
    This question was fairly raised by the answer, and although the case does not show that the attention of the judge on the trial was specifically directed to it; yet nothing appears therein to estop the defendant from claiming the same, and it is a full defense to the action.
    Before Freedman, Curtis, and Speir, JJ.

      Decided January 31, 1874.
    Appeal from judgment and order denying defendant’s motion upon the minutes for a new trial.
    The action was brought, against defendant as trustee-of the Lippiat Silver Plating Company, to recover the-amount of an alleged indebtedness from said company for money loaned on March 24, 1871, and for work, labor and services as superintendent, from March 20 to June 8, 1871. The amount claimed as a loan'was three hundred dollars, and that for services three hundred and twenty-six dollars. The jury rendered a verdict in favor of the plaintiff for two hundred and twenty-five dollars and twenty-five cents, and defendant appealed.

      Charles Matthews, for appellant.

      Freeman J. Fithian, for respondent.
   By the Court.—Freedman, J.

The two claims advanced by the plaintiff were submitted to the jury against the objection and exception of the defendant, who claimed that the plaintiff had failed in establishing any cause of action whatsoever. The jury disallowed the claim for loaned money, but for services a verdict for two hundred and twenty-five dollars and twenty-five cents was given. This verdict cannot be sustained. The evidence showed that the plaintiff was elected trustee of the same company on April 29, 1871, and consequently he could not, in any aspect of the case, recover from the defendant, as a co-trustee, as a penalty for the failure of the company to make and file the annual report required by statute, for services rendered subsequent to said date. This question was fairly raised by the answer, and although the printed case does not show that the attention of the trial judge was specifically directed to it, nothing appears which estops the defendant from insisting upon it. But a still more serious question arises from the fact, that, although one witness called for the plaintiff testified to plaintiff’s appointment as superintendent at a compensation to be paid at the rate of fifty dollars per month from March 20, 1871, to April 1, 1871, and at the rate of one hundred dollars per month thereafter, there was no evidence before the jury of the rendition of any services under said agreement or any sum due therefor, while defendant proved by two witnesses, whose testimony upon this point remained uncontradicted, that plaintiff had admitted to them that he had no claim against the company. The jury were even charged by the court that no evidence had been given in respect to any services rendered.

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


source: Caselaw Access Project

author: By the Coubt.—Fbeedmah,

license: Public Domain

text:
    EDMUND A. SMITH, et al., Plaintiffs and Respondents, v. GUSTAVUS ISAACS, Defendant and Appellant.
    Judgment will not be reversed for the refusal of the court to grant a nonsuit or dismiss the complaint, when the plaintiff rested his case, although at that time plaintiff had failed to prove his case; provided that afterwards during the progress of the trial, the necessary evidence was supplied by either party (Schenectady & Sara-toga Plank Hoad Co. v. Thatcher, 11 H. Y. 102, per Johnson, J.; Kent v. Harcourt, 33 Bari. 491; Colvin v. Burnet, 2 Hill, 620; Hearsey v. Pruyn, 7 John. 179).
    Before Freedman, Curtis and Speir, JJ.

      Decided January 31, 1874.
    Appeal by defendant from a judgment entered in favor of the plaintiffs, upon the report of a referee.
    The action was brought to recover a balance due upon an account for goods sold and delivered under a special contract.

      A. R. Dyett and G. A. Seixas, for appellant.

      William C. Barrett, for respondents.
   By the Coubt.—Fbeedmah,

The issues in this case seem to have been fully, ably and fairly tried. They were determined upon a theory which in the main is correct. The facts found by the learned referee, although mostly found upon conflicting testimony, are supported ■ by the evidence, and his conclusions of law legitimately follow from the facts thus found. No error was committed in refusing to find as requested by the defendant.

If the reception in evidence of the book of plaintiffs’ foreman constituted error, it will not avail the defendant, for the reason that he did not rest upon his exception, but that in the course of the defense he himself supplied the evidence upon which, independently of the said book, the referee rendered judgment. A judgment will not be reversed for the refusal to grant a nonsuit, though the plaintiff had at the time failed to prove his case, if the necessary evidence was supplied afterwards by either party (Schenectady & Saratoga It. It. Co. v. Thatcher, 11 N. Y. [1 Kern.] 102, per Johhsoh, J. ; Kent v. Harcourt, 33 Barb. 491; Colvin v. Burnet, 2 Sill, 620; Hearsey v. Pruyn, 7 Johns. 179).

The judgment should be affirmed, with costs.

Cubtis and Speib, JJ., concurred.


author: By the Court.—Freedman, J.

text:
    ISRAEL G. ATWOOD, Plaintiff and Appellant, v. MARGARET J. LYNCH, Administrator, &c., of James Lynch, Deceased, Defendant and Respondent.
    I. Sheriff.—Trespass.—Execution.—Levy.
    1. Trespass, action for, when it will not lie against the sheriff.

    a.' Where the sheriff under an execution against A. levies on property of B., and thereafter an execution against both A. and B. comes to his hands, under which he makes no actual levy, and thereafter he sells under the execution against A., he cannot beheld liable in an action of trespass brought by B. where the complaint assigns the trespass as having occurred on the day of sale.
    2. Application of proceeds, wrongful.

    Semble.—In such case the execution creditors of A. and B. might have an action against the sheriff for a false return, if he paid over the proceeds of the sale to the execution creditor of A.; and, perhaps, B. on showing special damage might have an action on the case against the sheriff.
    H. Complaint.—Recovery under, for a Cause of Action not Intended to be Pleaded, when allowed, when not.
    1. Allowed only when, in addition to the facts which alone were necessary to constitute the intended cause of action, the complaint states other facts, which either by themselves or in connection with the facts necessary to the intended cause of action, constitute another cause of action.
    See Ladd v. Askell, post.

    HI. Direction to jury to find a verdict.—Trial.—Appeal.
    1. No appeal will lie from the mere direction.
    Before Freedman, Curtis, and Speir, JJ.

      Decided January 31, 1874.
    Exceptions ordered to be heard at general term, and appeal from a direction to the jury to find a verdict.
    The action was brought against the late Sheriff Lynch for> taking and converting goods claimed by the plaintiff as owner, and upon the death of said sheriff it was continued against his administratrix.
    Upon the trial the following facts appeared :
    On May 19, 1864, Sheriff Lynch levied upon' the property in question under an attachment issued against the property-of one Don M. M. Turner in favor of Albert Read, and put a keeper in charge.
    On June 7, 1864, the plaintiff confessed judgment against himself and said Don M. M. Turner jointly, in favor of Charles White et al., for one thousand two hundred and twenty-eight dollars and twenty-eight cents, and on the same day execution was issued thereon to the sheriff, plaintiff intending to have the sold under this execution.
    On June 9, 1864, judgment was rendered in the action wherein the attachment against said Turner had issued, in favor of the plaintiff therein, and on the same day execution was issued thereon to the sheriff, Who thereupon endorsed upon said attachment “Attachment superseded by judgment and execution thereon as issued.”
    On June 34 the sheriff sold the property in question at public auction.
    It was claimed by the plaintiff that this sale was made under the execution against Turner alone, and that some days subsequently the sheriff sold the interest of both the plaintiff and Turner in the remaining property under the execution against them jointly.
    Upon this state of facts the judge at nisi prius ordered a verdict for the defendant, exceptions to be heard by the general term in the first instance.
    Plaintiff also served a notice of appeal from the ruling of the judge directing a verdict for defendant.

      Henry Stanton, attorney, and of counsel for appellant, urged among other things :—I.
    A constructive levy cannot be based on a prior void levy, but must be based on a prior actual and valid levy, and that on a writ against the same person (Crocker on Sheriffs, §§ 434, 440, 454; Camp v. Chamberlain, 5 Den. 198 ; Sherry v. Schuyler, 2 Hill, 304; Bank of Lansingburgh v. Crary, 1 Barb. 542). When the sheriff levied under the attachment he had no writs of any kind against Atwood. Hence the levy of the attachment was absolutely void, and it could not be the basis of a construcstruotive levy of the execution against Atwood. The sheriff’s indorsing on the attachment on June 9, “Attachment superseded by judgment and execution thereon as issued,” was no levy of the execution, unless the levy under the attachment was valid. The levy under the attachment was void. Hence this indorsement could form no basis for a constructive levy of the execution against Atwood.
    II. As the sheriff had, at the time of the sale, no actual or constructive levy on plaintiff’s property, his selling it was trespass (Ackworth v. Keuch, 1 Doug. 40; Van Antwerp v. Newman, 2 Cow. 543; Bliss v. Ball, 9 Johns. 132; Hotchkiss v. McVicker, 12 Id. 403; Neff v. Thompson, 8 Barb. 213; Crocker on Sheriffs, §§ 440, 846).
    III. Admitting the execution against Atwood was constructively levied, the sheriff waived any rights he may have had by virtue of such constructive levy, and is bound to account for the goods, (a.) The sheriff abandoned any constructive levy he may have had when, on June 24, he refused to sell under the execution against Atwood, and sold under the one against Turner, (b.) If he had a constructive levy under the execution against Atwood, and' it gave him such a lien on the property as authorized him to sell, he could only perfect his lien by selling under that execution, (c.) And for selling by virtue of the title vested in him under the levy of the Turner execution, independent

      of his lien under the constructive levy, he can be called upon to account for. the goods (Boardman v. Sill, 1 Campb. 40, note ; Holbrook v. Wight, 24 Wend. 169 ; Everitt v. Saltus, 15 Id. 474).
    IY. If the law allows the sheriff to sell without an actual or constructive levy, it does not follow that it allows him to refuse to sell under an execution against the owner of the property, and actually sell under one against a stranger.
    Brown, Hall <fc Yanderpoel, attorneys, and A. J. Yanderpoel, of counsel for respondent, urged:—I.
    At the time of the alleged trespass (which was stated in the complaint to be the day of the auction sale) the sheriff held the property in question and held an-execution against the plaintiff. This fact legally barred the plaintiff from maintaining his action of trespass, and the justice below was correct in ordering a verdict for the defendant. (1.) “At the common law no levy upon personal property was necessary ; the goods were bound from the award or teste of the execution, and the sheriff could take the goods out of the hands of even a bona fide purchaser; As a judgment entered during a term had relation back to the first day of the term, the execution could be tested as of the first day of the term, so it might well happen that the title of the sheriff wras superior to that of a bona fide purchaser, even though he had become such purchaser before the entry of judgment.” Opinion of Davies, J., in Bond v. Willett, 1 Keyes, 384. To remedy the evils which this relation of th,e writ occasioned, our Revised Statutes contain the following provisions (3 Rev. Stat. 5 ed. 644): § 13. “ Whenever any execution shall be issued against the property of any person, his goods and chattels, situated within the jurisdiction of the officer to whom such execution shall be delivered, shall be bound only from the time of the delivery of the same to be executed.” §17. “The title of any purchaser in good faith of any goods or chattels acquired prior to the actual levy of any execution, without notice of such execution being issued, shall not be divested by the fact that such an execution had been delivered to an officer to be executed before such purchase was made.” (2.) The necessity for these provisions in the statute, and the extent of the common law rule, are fully set forth in Roth v. Wells, 29 N. Y. 489 ; Bond v. Willett, 1 Keyes, 384 ; see also Ray v. Birdseye, 5 Den. 619, 625 ; Slade v. Van Vechten, 11 Paige Ch. 21 ; Becker v. Becker, 47 Barb. 497; Lambert v. Paulding, 18 Johns. 311 ; Beals v. Allen, Id. 363. In the case at bar the sheriff had levied upon the property under the execution against the plaintiff and Turner (Peck v. Tiffany, 2 N. Y. [2 Comst.] 451).
    II. There is no evidence in the case showing how the proceeds of this sale were applied, whether towards the satisfaction of the judgment against Atwood and Turner jointly, or towards that against Turner alone. The plaintiff is not shown to have suffered any damage. The priority of executions is determined by statute (3 Rev. Stat. 645, §§ 14, 15), and it makes no difference whether the sale is under the first or a subsequent execution (Camp v. Chamberlain, 5 Den. 198 ; Peck v. Tiffany, supra).

    III. The plaintiff cannot recover in his present form of action, even though it be admitted that Turner had no interest whatever in the property, and that the money realized upon the sale was all paid upon the execution against him. (1.) The plaintiff’s cause of action in that event, if any, would be that the sheriff had misapplied moneys which had come into his hands rightfully. If the sheriff did this, an action for false return might be brought against him by the plaintiffs in the other execution; or, possibly, the present plaintiff might have brought an action setting forth all the facts, and specially pleading the damage sustained by him. Such a cause of action, however, would be totally different from the one set forth in the complaint, which is the ordinary one of trespass. The trial proceeded throughout upon the theory that this was an action of trespass, and that the sheriff had no right to enter upon or to sell the property—which he unquestionably had (see cases cited under first point, and also Richards v. Allen, 3 E. D. Smith, 399). (2.) Bat the facts proved are wholly insufficient to sustain' an action of the character suggested, even if properly pleaded. The plaintiff did not show that he had sustained any damage. There is no proof that he ,was ever called upon to pay or had paid a dollar on account of the judgment against himself and Turner, and, as said before, there is no proof as to the disposition of the proceeds of the sale*.
    IY. The exceptions are not well taken, and judgment should be entered for the defendant in accordance with the verdict.
   By the Court.—Freedman, J.

The court below having ordered that plaintiff’s exceptions be heard at general term in the first instance, and that judgment be suspended in the mean time, no appeal lies from the mere’ verbal direction of the verdict. The whole case is removed to the general term for judgment under section 265 of the Code. If the exceptions are ..sus- • tained, a new trial must be ordered ; if overruled, the general term renders final judgment (Mason v. Breslin, 2 Sweeny, 386). ,

The verdict was properly directed for the defendant, because the complaint alleged nothing beyond a naked trespass on June 24, 1864, and the evidence showed, that at that time the sheriff not only held the goods in question, but that he also held an execution against the plaintiff, and because there was no evidence showing the final application of the proceeds of the sale. The levy under the attachment was a violation of plaintiff ’s rights at the time, in case Turner had no interest whatever in the property levied apon ; but the moment the execution issued upon the judgment of Charles White and others against Turner and the plaintiff was delivered to the. sheriff, "namely, June 7, 1864, the said property was bound for the amount of that execution without a levy (3 Rev. Stat. [5 ed.] p. 644, § 13). An actual levy is necessary only against a purchaser in good faith and without fiotice of the execution (Id. § 17). At common law the writ of fieri facias bound the goods of the debtor from the time when the writ was tested, which often preceded by a whole vacation the time of its delivery to the sheriff. This effect given to the writ by relation, often operated very unjustly, especially as against bona fide purchasers ; and to prevent that evil, the rule was changed by statute (Roth v. Wells, 29 N. Y. 489; Bond v. Willett, 1 Keyes, 384, per Davies, J.). The priority of executions and the application of the moneys realized from sales are also regulated by the Revised Statutes, and it makes no difference whether a sale takes place under the first or under a junior execution (Peck v. Tiffany, 2 N. Y. 451). But the executions must have been issued against the same defendant (3 Bev. Stat. [5 ed.] §§ 14, 15). Although, therefore, in case Turner had no interest whatever in the property in question, and a wrong application of the proceeds was finally made by the sheriff, Charles White and otjiers as execution creditors might have an action against the sheriff for a false return, and although upon the same facts, but coupled with proof of special damage, perhaps even the plaintiff might maintain an action on the case, yet under the complaint in this action which alleged nothing, beyond a naked trespass, plaintiff could not proceed as if his action had been on the case or for a false return. It is only where the complaint sets forth facts sufficient to constitute a different action from the one intended to be pleaded, in addition to those which had to be pleaded to make out the latter, that the plaintiff, upon failure to prove the latter, may sometimes be permitted to recover upon • the former (Conaughty v. Nichols, 42 N. Y. 83). But even if the complaint in the case at bar was broad enough, which it is not, to authorize a recovery upon any such theory, in case of failure to prove prespass, the plaintiff could recover only upon proof of special damage. No such proof was given or offered.

The appeal from the direction of the verdict should be dismissed, with ten dollars costs ; plaintiff’s exceptions should be overruled and judgment absolute rendered for the defendant upon the verdict, with costs.

Curtis and Speir, JJ., concurred.


text:
    JAMES BISHOP, et al., Plaintiffs and Appellants, v. THE EMPIRE TRANSPORTATION COMPANY, Defendant and Respondent.
    I. Finding-s oe eact and law, when not necessary.
    1. When the complaint is dismissed on plaintiff’s own proof, a. In such case, where the trial is by a court, the decision dismissing the complaint may be entered in the minutes of the clerk, and a judgment of dismissal entered upon a copy of such minutes without any findings. And where the trial is before the referee, he may simply report that on the trial before him he' dismissed the complaint on plaintiff’s own showing, and direct the entry of a judgment of dismissal, and such judgment may he entered on such report.

      II. Review op such a decision.—Case.—Exceptions.—Pbactice.
    1. Bequest to insert findings in the case, a. If in such case a plaintiff desires a review on the evidence, he may prepare a case or exceptions and request the insertion therein of such findings as he might deem necessary, then in case of the judge’s or referee’s refusal to comply with the request, an exception to his ruling will, on appeal, present the questions involved.
    Before Freedman, Curtis and Speir, JJ.

      Decided January 31, 1874.
    Appeal from order denying plaintiffs’ motion to set aside judgment dismissing their complaint for irregularity.

      Edward L. Andrews, for appellants.

      John L. Qadwalader, for respondent.
   By the Court.—Freedman, J.

Plaintiffs’ notice of motion did not specify, as required by rule 46, the irregularity complained of, and for such defect alone the order appealed from might be affirmed (Lewis v. Graham, 16 Abb. Pr. 126).

It appearing, however, that the motion was decided upon the merits, we have examined the question discussed below.

The action, being an ordinary action at law, was tried, with the consent of the parties, by a judge of this court without a jury, and the sole ground of the motion was that the said judge, in rendering his decision by which the complaint was dismissed on plaintiffs’ own showing, did not specify the facts found and his conclusions of law thereon.

Prior to the Code, a plaintiff could be compelled, at the trial, to submit to a nonsuit, when the evidence adduced was not sufficient to support the declaration. He could not be nonsuited, if he proved all that was laid in the declaration, because that was available on demurrer (3 Wend. 158). But. in case of the insufficiency of the proof to support the declaration, it was the duty of the court to take the case from the jury and to nonsuit (1 Wend. 376 ; 6 Id. 436). The power to do so was held to be inherent in the courts and to result necessarily from the fact that they are the judges of the law of the case when no facts are in dispute (Pratt v. Hull, 13 Johns. 334).

By the judiciary act of 1847 (ch. 380, § 80), power was conferred upon the courts to try, with the consent of the parties, issues of fact in actions at law without a jury, and it was prescribed that the finding of a judge on such issues should in all respects have the same effect as the verdict of a juiy thereon. Section 367 of the Code, as originally enacted (§ 333 of 1848), further prescribed, that such decision should be in writing, and that it should contain, first, a statement of facts, and then the conclusion of law based thereon. The latter requirement was repealed by the amendment of 1849, and remained repealed until 1860. During this period it was sufficient if the decision of the judge stated in general terms the judgment to be entered thereon, and it was necessary only for the purpose of an appeal that the proper findings of fact and of law should appear in the case or bill of exceptions, which had to be prepared or settled for that purpose (Otis v. Spencer, 16 N. Y. 610 ; Johnson v. Whitlock, 13 Id. 344).

In 1860, section 367 was amended by the reinsertion of the requirement that upon the trial of a question of fact by the court, the decision shall contain a statement of the facts found, and the conclusions of law separately. Since that time, this section has undergone further amendments in other respects, but the said requirement was retained on these occasions, and it is still in force. It applies to every case in which ultimate facts which constitute the foundation fora judgment upon the merits of the controversy, are either to be determined upon conflicting testimony or to be deduced from a number of isolated circumstances that appear in evidence (Bridger v. Weeks, 30 N. Y. 328). It therefore applies to an inquest on which the plaintiff seeks to establish the facts which have been put in issue by the answer, and which he is bound to establish by competent testimony, before he can recover. Burger v. Baker (4 Abb. Pr. 14), although decided prior to 1860, is undoubtedly good law upon this point at the present time.

Whenever, therefore, findings of fact are necessary, they should not only be made, but all the facts which enter into and form the basis of the judgment to be entered upon the decision, must be found. Ho factis or can be implied from the conclusions of law; the latter follow as the result of the facts separately stated (Tomlinson v. Mayor, &c. of Hew York, 23 How. Pr. 452).

But facts not found are necessarily negatived by implication (Sermont v. Baetjer, 49 Barb. 362; McAndrew v. Whitlock, 2 Sweeny, 623); and hence it follows that in "a decision dismissing the complaint on plaintiff’s own proof, which is simply a ruling that, as matter of law, the plaintiff failed to substantiate the allegations of the complaint, just as the order for a compulsory nonsuit under the old practice was a ruling that, as matter of law, the plaintiff had failed to support the declaration, and which in no wise affects the merits and does not bar another action, no special findings are necessary. Upon this point the old practice is not inconsistent with the Code, and therefore it is still in force (Code, § 469). Thus it was held in Nelson v. Ingersoll, 27 How. Pr. 1, that the defendant having failed to establish his counter-claim, the referee was not bound to find upon the facts of such counterclaim specially, but that, in finding for the plaintiff, he had negatived the counter-claim by implication.

In this connection it may not be- ont of place to point out that, notwithstanding numerous changes have been made in section 272 of the Code, which relates to trials by referees exclusively, referees were at no time since .the year 1851 relieved from the duty of embodying in their report a statement of the facts found. To rectify-the error into which Judge Comstock had fallen, in Johnson v. Whitlock, 18 N. Y. [3 Kern.] 344, in extending the then existing and above-mentioned exemption of the judges from such duty to referees, the supreme court, soon after the decision of that case, enacted a rule, in which the duty of preparing findings was expressly insisted upon (Rule 32 of 1858, reenacted in 1870 as Rule 39). But the very language employed indicates that the requirement was not intended to embrace the case of a nonsuit. The rule commences by stating that on a hearing before referees the plaintiff may be nonsuited, or his complaint may be dismissed, in like manner as upon a trial, at any time before the cause has been finally submitted to the referees for their decision. In such case the referees shall report according to the fact, and judgment may thereupon be perfected by the defendant. But upon a trial, the referees are required, in their decision and final report, to state the facts found by them and their conclusions separately. That the word “ trial,” as here used, means a trial upon the merits, may be seen from the further provision, which requires that a copy of such findings shall be served with the notice of the judgment, and that the time within which exceptions may be taken to the report shall be computed from the time of such service. As at the time of the nonsuit both parties are before the referee, and the plaintiff has the opportunity to except at once, the requirement last referred to cannot have been intended to apply to the case of a dismissal of the complaint upon plaintiff’s undisputed testimony (see Dainese v. Allen, 14 Abb. Pr. N. S. 363 ; S. C., 45 How. Pr. 430, where the two classes of exceptions contemplated by section 268 of the Code, and the mode and time of taking them, are discussed).

There was no irregularity in the entry of the judgment in this case. If plaintiffs desired a review upon the evidence, they were at liberty to prepare, within the time prescribed by law, a case, or exceptions, and, under section 268 and rule 41, to request the insertion of such findings' therein as they deemed necessary for the protection of their supposed rights. In such case' the judge’s refusal to find, followed up by an exception to such ruling, would, on a review of the whole' case, have presented a proper question for consideration on appeal (Van Slyke v. Hyatt, 46 N. Y. 259 ; Beck v. Sheldon, 48 Id. 365; McKeon v. See, 4 Rob. 449). Their neglect so to do cannot be cured in tho manner attempted.

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

Curtis and Speir, JJ., concurred.


text:
    JAMES BISHOP, et al., Plaintiffs and Appellants, v. THE EMPIRE TRANSPORTATION COMPANY, Defendant and Respondent.
    Appeal, extension op time poe, what does not ofebate as.
    1. A motion to set aside a judgment does not operate to extend' the time for appealing therefrom.
    Before Freedman, Curtis and Speir, JJ.

      Decided January 31, 1874.
    Motion to dismiss plaintiffs’ appeal from judgment.

      John L. Qadwalader, for the motion.

      Edward L. Andrews, opposed.
   By the Court.—Freedman, J.

Judgement having been entered in this action upon the dismissal of plaintiffs’ complaint on the trial in favor of the defendant, the plaintiffs, after receipt of written notice of the judgment, purposely permitted the time within which to appeal, to expire. They preferred to rely for success upon a motion which they made, to vacate the judgment for irregularity in the entry thereof (see ante, p. 12), but failed in the attempt. Having made their election, they should be held to the consequences. The motion to set aside the judgment, did not affect the time for appealing (Renouil v. Harris, 2 Sandf. 641). The time within which an appeal mhy be taken, is fixed by statute, and it cannot be extended by the courts. This proposition is so firmly established that it requires no citation of authorities in support thereof.

The notice of appeal having been served too late, the appeal must be dismissed, with costs.

Curtis and Speir, JJ. concurred.


author: By the Court.—Curtis, J.

text:
    HENRY B. HEWITT, Plaintiff and Appellant, v. SAMUEL C. MORRIS, Defendant and Respondent.
    The general rule with respect to the proof of all private writings is, that when an instrument is attested by a subscribing witness, the witness ought to be produced at the trial to prove it, and when the original instrument has been lost or destroyed,. and the witness is known, and his testimony can be obtained, he must be called. This latter contingency calls for the most rigorous application of the ancient rule of the English law of evidence, that the- witness must be called.
    Admission of a copy of the lost instrument in evidence, without calling the subscribing witness, when it appears the witness could have been easily produced, is clearly erroneous.
    The objection on the trial that the witness must be produced to prove 11 his attestation ” instead of “ to prove the execution of the instrument,” is sufficient, and the exception to the overruling of this objection by the court at the trial, is well taken.

      “ Attestation and execution ” of an instrument are spoken of in the authorities as the same thing (2 Bl. Com. 307).
    The exception taken on the trial to the admission in evidence of the copy of the chattel mortgage, was well taken (3 Phil, on Ev. Cow. <6 3. Notes, 857; Bissel v. Pearce, 28 N. Y. 256; Hodnett v. Smith, 2 Sweeny, 406, and other authorities cited in the opinion of the court). Where an action has been brought to recover personal property, after the usual forms of pleading, and the complaint does not disclose the source or the character of the title of the plaintiff to the property, the defendant is not in a position to set up matter in his answer in avoidance of a chattel mortgage or other written instrument, upon which the plaintiff may seek to found his title or ownership of the property sought to be recovered, and on the trial the defendant must be allowed to attack the validity of the written instrument proven. These facts present a case where the law allows the matter in avoidance to be proven without its being set up in the answer. This becomes necessary in furtherance of justice (Ruckman v. Cowell, 1 Com. B. 508).
    A jury cannot take with them on their retirement for deliberation any writings, other than such as have been received in evidence before them (Howland v. Willetts, 9 N. Y. 175). In this case the exception of defendant’s counsel embraced not only the memorandums of the plaintiff’s counsel as to the value of property, but also his own memorandums relating to the same subject, delivered by him to the jury and taken by them at his request.
    The exception was not well taken. It should have been" limited at least to his opponents memorandum.

    Before Freedmah, Curtis, and Speir, JJ.

      Decided January 31, 1874.
    Appeal by the plaintiff, from an order at special term, granting a new trial. The facts and exceptions appear fully in the opinion of the court.

      F. G. Cantine, for appellant.

      Henry Morrison, for respondent.
   By the Court.—Curtis, J.

The action is to recover the value of certain personal property, alleged' to have been converted by the defendant. The answer sets up a general denial, and also that a portion of the property in question was levied upon for the non-payment of rent of a house, owned by defendant, under a warrant of distress, pursuant to the laws of New Jersey.

At the trial, the plaintiff testified that having a chattel mortgage on the property in question, of which he had previously demanded payment, he went to Long Branch, packed the property in boxes, and placed it in a wagon, which the defendant stopped, and had the property replaced in the house. The plaintiff called a witness who testified, he had received the mortgage to foreclose and mislaid it, and could not find it. No objection was interposed as to the sufficiency of the proof of loss. The plaintiff produced a paper, which he testified was a copy of the original mortgage, and the words “James Smith” were a copy of the signature of “James Smith,” the subscribing witness to the mortgage, who was his clerk, and whom he had left in his store that morning. The defendant’s counsel objected to the admission of the copy, in the absence of the subscribing witness to prove his attestation. The objection .was overruled, and the defendant excepted. The paper purported to be a mortgage from one Francis Winchester to plaintiff, to secure two thousand five hundred dollars, on demand, covering (inter alia) property of the description. referred to by the plaintiff in his testimony.

The defendant excepted to the exclusion of testimony offered by him to prove the mortgage was given to the plaintiff without consideration, and also excepted to a direction of the court, allowing the memoranda of the counsel of the parties, as to the testimony respecting the value of the property, to be taken by the'jury, at the close of the charge.

The general rule with respect to the proof of all private writings is, that when an instrument is attested, the attesting witness ought to be produced at the trial to prove it, and that where the attested instrument is lost or destroyed, and the witness is known, he must be called. The latter contingency would seem to call for the most rigorous application of this ancient rule of the English law of evidence that the witness must be called. The admission of the copy of the mortgage in evidence, without calling the subscribing witness, whom the plaintiff could easily have produced, was erroneous, unless there is force in the plaintiff’s claim, that the exception was not well taken, because the ground of the objection was, that the subscribing witness should be produced to prove “ his attestation,” instead of the execution of the instrument. This distinction does not seem to be well founded. They are spoken of as the same thing. For instance, Blaokstohe says, “The last requisite to the validity of a deed is the attestation, or execution of it, in the presence of witnesses” (2 Bl. Com. 307). The defendant’s exception to the admission of the copy was well taken (2 Phil, on Ev. Cow. & H. 557; Moore v. Livingston, 28 Bart. 543 ; Bissel v. Pearce, 28 N. Y. 256, 257; Fellows v. Van Hyring, 23 How. Pr. 230 ; Hodnett v. Smith, 2 Sweeny, 406).

If the chattel mortgage had been duly proved and put in evidence, the defendant should not have been refused the opportunity to show that it was invalid. The complaint gave him no notice that the plaintiff claimed the property in question, under that mortgage. The form of the pleading was such, that the defendant was not in a position to set up matter in avoidance of the mortgage in his answer, and one of those cases was presented, where the law allows the matter in avoidance to be given in evidence, without its being pleaded in the answer. It becomes necessary in furtherance of justice (Ruckman v. Cowell, 1 Com. 508).

' In ■ reference to the defendant’s exception to the direction of the court, allowing the jury to take with them, the memoranda of the respective counsel, as to the evidence of value, it appears to be the rule, that the jury cannot take with them writings, other than such as have been put in evidence (Howland v. Willett, 9 N. Y. 175). It has been very properly held that the possession by the jury, during their deliberations, of the minutes of the testimony, taken by the counsel of the successful party, was a sufficient cause for reversing the judgment (Durfee v. Everland, 8 Barb. 46). The defendant’s exception to this direction of the court would have been well taken, if he had not covered too much by his objection, and exception, embracing in the same objection and exception, his own memorandum of the testimony, concerning value which had, pursuant to. his request, already been taken by the jury, as well as the memorandum of the plaintiff’s counsel. He should have limited his objection and exception to his opponent’s memorandum, to have made it available.

It is urged on the argument that irrespective of any rights under the mortgage, the plaintiff’s bare possession of the property, with a claim of title, was sufficient to enable him to maintain the action. It was justly said by the court, in granting the order for a new trial appealed from, that “ this was not his position on the trial, which proceeded on the basis, that his possession was solely under a chattel mortgage, and so the learned judge in substance charged the jury.”- If the plaintiff had wished to avail himself of this position, he should have taken it at the trial, where the defendant would have had an opportunity of meeting it. He elected to-rely upon the chattel mortgage, and his rights, if any under that, and upon that went to the jury. It might work injustice, if the court, upon appeal, should look through the evidence, imperfectly as a whole, presented by the bill of exceptions, and say that upon a different and distinct claim, than that presented at the trial, the plaintiff’s verdict is to be sustained. Lord Kenyon held, in Sheriff v. Codell (3 Esp. 616), that if a plaintiff in trover, to establish property, offers written evidence which he fails in maintaining, he shall not be allowed to recur to, and rely on, a mere possessory title.

The order appealed from, sustaining the defendants’ exceptions, and granting a new trial, should be affirmed, with costs.

Feeedman and Speir, JJ., concurred.


author: Br the Court.—Curtis, J.

text:
    ALFRED BLEWETT, Plaintiff and Respondent, v. HENRY BAKER, Defendant and Appellant.
    The plaintiff was to procure a lease of certain premises, and assign the same to the defendant, the latter agreeing to pay the rent on the premises. The plaintiff procured the lease according to the agreement, and notified defendant that the lease was perfected and ready for his. acceptance, and requested him to appoint a place where the same could be accepted by, or transferred to him. The defendant refused to comply with the notice and to accept the assignment of the lease, saying that it was too late, and raising no other objection. Held, that this refusal on the part of defendant superseded the necessity of any tender on the part of plaintiff to defendant, of the assignment of the lease, and was in effect a waiver of it (Crary®. Smith, S3 N. Y. 65).

      Before Freedman, Curtis and Speir, JJ.

      Decided January 31, 1874.
    Appeal by defendant from a judgment entered upon a verdict, and an order refusing a new trial. The facts in the case appear in the opinion of the court.

      Horace Andrews, for appellant.

      Qeorge W. Lord, for .respondent.
   Br the Court.—Curtis, J.

Nearly all the questions in this case rest upon the facts that were fully and impartially considered and determined correctly on the trial. The action was brought to recover damages for the breach of a contract. The proofs on the part of the plaintiff, and the pleadings showed that he contracted verbally with the defendant to manufacture 'fifteen thousand of “Baker’s Patent Bolster Spring Bed,” at twenty cents each, the defendant to furnish the materials and the use of the machinery. The contract between the parties, as first made, provided that the plaintiff should procure a lease of the premises where the work was to be performed, and find security for the rent, and assign the lease to the defendant. The plaintiff procured the lease, found security, and handed it to the defendant, about the middle of April, 1872, who after retaining it two or three days, objected to the clause for renewal, and thereupon a modification was made of the contract, by which the price of the work was reduced to twenty cents a bed, and the defendant was to pay the rent of the premises. The reduction in the price to be paid on fifteen thousand beds, amounts to one hundred dollars less than the rent to be paid for the first year. The plaintiff procured a new lease, in accordance with the agreement between the parties at the time of the modification of the contract.

On April 24 following, the plaintiff notified the defendant that this new lease was perfected and ready for his acceptance, and requested him to appoint a„ place where it could be accepted or transferred to him; but he refused, saying it was too late, and that he hired another place, raising no other objection. There was testimony on the part of the defendant that this lease was to have been in his name, and that he objected to receiving it also on that ground. There was a verdict for the plaintiff for seven hundred and fifty dollars!

The defendant claims that the evidence did not authorize any verdict for the plaintiff, and that.the complaint should have been dismissed. The questions of fact arising upon the conflicting statements of the parties were fairly submitted to the jury, and they found the plaintiff’s version to be the correct one. But the defendant urges that even upon plaintiff’s own showing he had no cause of action, because he failed to find security for the payment of the rent, and also failed to assign the lease. But it clearly appears that the defendant entered into a modification of the original contract, and undertook to pay the rent himself; a modification which necessarily relieved the plaintiff from finding security that he himself would pay it. As to the alleged failure by plaintiff to assign the lease to the defendant, the evidence shows that the defendant refused to accept it, claiming it was too late, and that it should have been made direct to him. The plaintiff seems to have .been diligent in attending to procuring the lease, and to have done all that was reasonable on his part in attempting to fulfill the contract.

The notice by the defendant to the plaintiff that he would not accept the lease, and his refusal to appoint a time and place for the transfer, superseded the necessity of any tender to the defendant of the assignment of the lease, and was in effect a waiver of it (Crary v. Smith, 2 N. Y. [2 Comst.] 65).

The question as to whether the plaintiff procured the lease within a reasonable time after the contract was made, considering May 1 was approaching, when the defendant would have to get a place to do his business, was left to the jury, under the charge of the court, and without any objection, and it is now too late to raise any in respect to it, upon the argument of this appeal. The same may be said concerning the objection presented by the defendant on the argument, upon the question of damages. The instructions by the court to the jury on that subject were not excepted to by the defendant, nor was there any request made on his part for a different charge, and the jury manifestly followed the direction of the court. The exceptions to the admission of evidence in respect to the capacity of certain machinery, were not referred to in appellant’s points, nor were they urged on the argument, and they may therefore be deemed to have been abandoned.

■ The judgment and order appealed from should be affirmed.

Freedman and Speir, JJ., concurred.


text:
    MORRIS FRANK, et al., Plaintiffs and Respondents, v. THE CHEMICAL NATIONAL BANK OF NEW YORK, Defendant and Appellant.
    I. Handwriting.—Proof of.—Expert’s opinion of, inadmissible.
    1. The 'opinion of an expert who has never seen the person whose signature is in question write, nor corresponded with him, is inadmissible in evidence.

      2. Error in reception of such evidence, when material.

      a. When on the one side the person who it is claimed signed certain checks testifies that the signatures are not his, and it is proved that there are no corresponding stumps in the check-book, and that the book-keeper 01 the firm whose checks those in dispute purport to be had absconded; and on the other side the book-keeper and paying teller of the bank on which the checks were drawn testify that they are acquainted with the signature of the person who it is claimed signed the check, and that the signatures to the checks in dispute are in his handwriting; the reception of such expert evidence constitutes material error. '
    H. Photographic copies and photographic magnified copies of documents and signatures alleged to be forged or altered, and of documents and signatures admitted or proved to be genuine, and properly in evidence for other purposes, may be presented and used on the trial for the purpose of enabling witnesses the better to detect and point out differences between the two, and of enabling the jury better to ascertain by inspection whether there are any differences; and if so, what.

    . in. Bank pass-book.—Settlement of accounts.—Estoppel.
    1. Effect of banVs balancing the book, and then returning it balanced, with the checks, to the depositor, and of the depositor not questioning the accuracy of the balance until a long time after-wards, when, having discovered an error in addition, or charging him with forged checks, he within a reasonable time afterwards notifies the bank thereof.

      a. Its only effect (unless the bank has by his silence been induced to take any action or lost any rights) is to cast on the depositor the burden of proving fraud, error or mistake in the accounts. • If he establishes either fraud, error or mistake, he will be entitled to recover the balance which the correction thereof shows to be due him.*

      Before Freedman, Cubits and Speir, JJ.

      Delivered January 31, 1874.
    Appeal from judgment.
    The plaintiffs sued to recover money they had deposited with the defendant. The defendant answered, that the money so deposited had been paid out from time to time on the checks of plaintiffs, and that they had at various times rendered their accounts and vouchers for such payments to the plaintiffs, who made no objection to such accounts, and pointed out no errors. On the trial, the plaintiffs introduced evidence to show that certain of the checks which had been paid by the defendant, and were relied upon by it as vouchers, were not in fact signed by the plaintiffs, but were forgeries of the signature of their firm name of Frank & Hirsch.

    The referee found for the plaintiffs, and there was a judgment against the defendant for the amount claimed. There is no claim of unfairness or bad faith by either party as against the other. The business relations of the plaintiffs with the defendant continued after the commencement of this suit, brought to ascertain the legal rights of the parties, and which has been conducted so as to present very clearly and properly their respective views.
    The plaintiff, Frank, testified that he wrote all of. the signatures of his firm to checks during the period in question, and that he never wrote either of the signatures to the three checks produced on the trial, and alleged by the plaintiffs to be forged, and that there were no entries corresponding to them in the stumps of plaintiffs’ check-books, and. thqt he had never seen them until after his book-keeper, Groodheim, had absconded, leaving them in the bank, and that they were forged. There was testimony in corroboration of this ; and also Joseph E. Payne was examined as a witness by the plaintiff.
    It is conceded by the defendant that Mr. Payne testified to very great experience in these matters, and fully proved himself an expert under the decisions. He stated in detail the various steps of the process pursued by him in detecting simulated writings or signatures from those which are genuine. He testified: “I have been accustomed, in my examinations of writings for the purpose of detecting forgeries, quite largely to employ the use of a photograph. In a great many instances they are exceedingly useful in the matter of tracings. They are exceedingly useful in greatly enlarging the signature, to show the character of slow motion, and to show these beads, hitches, knots and hair-strokes, of which I have been speaking, and all the little indicia of simulation, which I am accustomed to find in forgeries. In those experiments of photographing, I am accustomed myself to arrange the signatures, and to superintend the operations. I must do that, to take care of the original papers in my hands, and not leave them out of sight, and for the purpose of seeing it done correctly and as I want it done, and for the purpose which I have in view, and the manner suitable to that purpose.”
    The witness also testifies to a very careful and critical examination of the numerous checks in evidence, including the three in controversy, in pursuance with his process of examination, having the latter and some of the former photographed. There were three hundred and ninety-one checks introduced in evidence, of which the signatures were conceded to be genuine.
    The witness-was asked this question : ‘1 From the examination you have made, are you acquainted with the characteristics of the handwriting of the genuine signature of the plaintiffs’ firm, as exhibited in the checks referred to ?” The defendant objected to this question, as incompetent and irrelevant. The objection was overruled, and the defendant excepted. The witness answered the question in the affirmative. There were like exceptions by the defendant to the rulings of the referee, allowing questions to elicit facts that were apparent upon a critical examination and inspection of ‘the checks, or else that called for the opinions of the witness, among other things, as to the genuineness of the signatures in controversy.
    The referee reported in favor of plaintiff, upon which report judgment was entered in faVbr of plaintiff against defendant for nine thousand nine hundred and forty-four dollars and fifty-eight cents.
    From this judgment defendant appeals.
    Roosevelt, Henry & Olin, attorneys, and Stephen H. Olin, of counsel for appellant.

      J. H. <6 B. F. Watson, attorneys, and B. F. Watson, of counsel for respondent.

       The three judges, after hearing an elaborate argument from counsel on both sides, were unanimous in holding these propositions.
      The profession, however, will observe that it was not necessary to pass any opinion on thcge questions in order to arrive at the conclusion ultimately reached, viz: a reversal of the judgment.
      We have thought it better, however, to place the propositions in the head note.
      It may be observed that the third proposition follows, and is fully warranted by Weisser ». Denison, 10 If. T. [6 8eld.~\ 68.

   By the Court.—Curtis, J.

The rule that the opinion of a witness is inadmissible when that opinion is based on the comparison of handwriting, was long adhered .to in this State (Jackson v. Van Dusen, 5 Johns. 155 ; Jackson v. Phillips, 9 Cow. 112; Wilson v. Kirkland, 5 Hill. 182).

This rule has been so far modified as to permit a comparison of the disputed document with instruments admitted to be genuine, and properly in evidence, for other purposes (Morey v. Safe Deposit Co., 34 N. Y. Superior Court Reports, p. 154; Van Wyck v. McIntosh, 14 N. Y. 439 ; Hoyt v. Stuart, 3 Bosw. 447).

In the case of Ellis v. People (21 How. Pr., Allen, J.), commenting upon this rule in England and in this State, observes, “that the handwriting of such instruments may be compared by the jury, and the genuineness or simulation of the handwriting in question be inferred by such comparison,” adding Cl a witness, cannot, however, take the place and usurp the functions of the jury.”

In People v. Spooner (1 Den. 343), Bronson, Oh. J., after reviewing the cases, arrives at the conclusion, that the weight of authority is against permitting an expert to answer the question, whether he believed the handwriting in question to be a genuine signature or an imitation, and that such evidence should be rejected.

In Dubois v. Baker (30 N. Y. 355), it was held proper to ask questions to elicit all facts material to the investigation, as to whether there were erasures upon the note in question, as to whether they were made before or after the note was written, as to differences in the color of the ink, as to the words being unusually cramped and confined, these being .facts apparent upon inspection of the note, and competent to be established upon oath. It was also held that an expert could speak as to whether the writing upon the erasure was made before or after the body of the note was written, if that rested in opinion.

It seems to accord with the views of the courts, that witnesses may describe all the facts in respect to the condition and appearance of the paper and handwriting, and that, as to those matters which require special skill and scientific research to discover, and explain, an expert may be called upon to testify. There appears to be no disposition to restrict the placing before the jury of all of the material facts, and the opinions of experts upon those matters, which science and aft tend to elucidate; but no witness is permitted to give his opinion as to the genuineness of the writing in question, based solely upon a comparison of the documents in evidence. This is especially reserved for the jury, who must come to their conclusion upon other testimony than the opinions of witnesses as* to the genuineness of the writing who have never seen the party in regard to whom, the question arises write or corresponded with, him.

In the present case, there was the direct testimony of the resident plaintiff, and who alone had charge of the plaintiff’s business in New York during the period in question, that the signatures were forgeries. This was to some extent corroborated by other evidence, and in addition there was the testimony of the expert, Mr. Payne, which it is impossible to carefully examine, without being impressed by the extent, the minuteness, and the relevancy of his illustrations, and the force of his opinions and conclusions. They seem to indicate,, that skill, and the resources of science, are destined to discover forgery, with a certainty but little short of a mathematical demonstration.

All the evidence was placed before the referee, for him to form his opinion as to the genuineness of the signatures. But the expert, in addition to this testimoney, was asked for his opinion, as to the genuineness of the checks, he having no knowledge of the handwriting of the plaintiffs except what he had obtained by comparison of handwritings for the purposes of this trial. Among other questions he was asked:

Q. “Is their any possibility, in your belief or judgment, of those three being genuine checks ?”

A. “ Not a shadow of any.”

The defendant duly objected to the question, and excepted to its allowance. The decisions heretofore referred to, are in variance with this ruling. Referring to the language used in Ellis v. People (21 How. Pr. 356), the question arises whether this does not present a clear instance, where the witness “takes the place and usurps the functions of the jury ?” Should not the referee, on this trial, have so restricted the admission of the evidence, that with all the light of the preceding testimony thrown upon the question, he should have proceeded to form his own opinion, as to the genuineness of the signatures, without permitting the witness to testify as to what was his opinion as to the genuineness ? Perhaps, in addition to the many things affecting the genuine handwriting of a party, referred to by Chief Justice Bronson, in People v. Spooner (1 Ben. 343), such as age, health, habits, mental condition, position, haste, penmanship, and writing materials, and tending to render a conjectural opinion too unsatisfactory for the foundation of a judicial decision, it is the policy of the law, that the jury shall arrive at their decision, by the exercise of their own careful consideration and judgment upon the evidence unbiased, and unaffected by listening to opinions of witness, based solely upon a comparison of documents in evidence before them.

If the conclusion is correct, that the referee erred in admitting this testimony, then the question arises, whether it is of sufficient consequence to call for the granting of a new trial. The defendant’s paying teller, and also the defendant’s book-keeper, testified that they were acquainted with the hand writing of the plaintiff Frank, and that they believed the signatures to the checks in dispute to be in his hand writing. There is a conflict of evidence of such a character, that we cannot say that it would be idle to send the case back, because a new trial would present the same result. It is obvious that when questions arise in respect to the alleged simulation of signatures, so nice and so important in themselves, and so constantly affecting the interests of property and society, there should be no inconsiderate refusal to grant a new trial, where any improper evidence which is essential material and has been admitted. The defendant was entitled to the referee’s judgment upon the testimony that was competent, and it is impossible to reason or determine as to-what might have been the effect of the inproper testimony .upon the referee’s mind in arriving at his conclusion, especially as this testimony extended directly and forcibly to the very matters in issue. We cannot say that the referee would have made the same report, if this evidence had been excluded, and consequently there is manifest justice, under the circumstances, in granting a new trial (Williams v. Fitch, 18 N. Y. 551 ; McGuire v. O’Halloran, Hill & D. Supp. 86 ; Clark v. Crandall, 3 Barb. 615).

A question was raised by the defendant as to the presentation and use on the trial of photographic copies and photographic magnified copies of the documents in dispute. The administration of justice profits by the progress of science, and its history shows it to have been almost the earliest in antagonism to popular delusions and superstitions. • The revelations of the microscope are constantly resorted to,'in protection of individual and public interests. It is difficult to conceive of any reason, why in a court of justice, a different rule of evidence should exist, in respect to the magnified image, presented to the eye by the lens in the microscopist’s instrument, from that which applies to the same image, presented by the lens in the photographer’s ©amera, and permanently delineated upon sensitive paper. Either may be distorted or erroneous through imperfect instruments or manipulation, but that would be apparent or easily proved. If they are relied upon as agencies, for accurate mathematical results in mensuration and astronomy, there is no reason why they should be deemed unreliable in matters of evidence. Wherever what they disclose can aid or elucidate the just determination of legal controversies, there can be no well-founded objection to resorting to them.

It is claimed by the defendant, that a critical examination by the plaintiffs of ‘their bank-books and check-books, wotild have disclosed the fraud at any time, and that they were barred by the various settlements and balancings of their bank-book, previous to this discovery; but these objections are fully answered by the views expressed in the opinions of the court, in Weisser v. Denison, 10 N. Y. 68. That decision is so fully recognized, as establishing in the public mind the basis upon which transactions between the dealer and the banker, in respect to deposits, are conducted, that it would be unwise to seek to give effect to the delicate and subtle distinctions sought to be drawn by the defendant’ s counsel on the argument.

These considerations dispose of the questions discussed upon the hearing, and if they are well founded, the judgment appealed from should be reversed, with the usual direction in regard to the order of reference, and a new trial granted, with costs to abide the event.


author: By the Court. —Curtis, J. Freedman, J.

text:
    THOMAS W. LADD, Plaintiff and Appellant, v. JAMES ARKELL, et al., Defendants and Respondents.
    I. Factob.
    1. Facts sufficient to clothe one with the cha/racter of factor, a. If one whose general business is that of a provision broker, receives provisions from a consignor for sale on his account, obtains an advance thereon in his own name, afterwards procures in his own name another advance with which he pays off the first, and delivers the provisions to the last advancer to be by him sold, he is as to those provisions clothed with the character of factor. •
    1. Right to sue.

      a. A factor may sue in his own name, for a conversion, or to recover proceeds arising from a sale of the goods of his consignor.

      II. Complaint containing allegations sufficient to sustain a cause op actice in either tort or contract.
    1. Under it a recovery either in tort or on contract, according as to which may be supported by the proof, may be had.
    See Atwood «. Lynch, ante.

    2. Summons por rbliep. This makes no difference.
    8. Remedy op dependant. By motion to strike out, make more certain, compel an election, or set aside the complaint, whichever one may be appropriate to the particular case.
    Before Freedman, Curtis, and Speir, JJ.

      Decided January 31, 1874.
    Appeal from judgment.
    The summons in this action was for relief, and the complaint was as follows :
    “Thomas W. Ladd, the above named plaintiff, by Elias J. Beach, his attorney, complaining against James Arkell and William F. Tufts, the above named defendants, shows to the court as follows:
    ‘1 First. That during the ‘whole year 1866, the above named defendants were copartners iti business, at the city of New York, under the firm name and style of “Arkell, Tafts & Co.,” and as a branch of their business then and there transacted under their said firm name, received consignments of goods to be sold under directions, and made advances thereon, to be reimbursed to them upon the sale of the goods upon which such advances were made.
    “ Second. That during said date, to wit, during the year 1866, the above named plaintiff was a provision broker and commission merchant at said city of New York, and, as such, delivered or caused to be delivered to the above named defendants, as such copartners, on or about March 17, 1866, to be sold by them under the-direction of said plaintiff, for the account of whom it might concern, two hundred and thirty-six tierces of beef, of the value of about five thousand dollars, the property of J. Addison Wood, then in the hands of this plaintiff for sale, and upon such delivery, this plaintiff received from said defendant, for the account of said Wood, the sum of about thirty-eight hundred dollars ; and thereupon gave said defendants directions to make sale thereof, and account to said plaintiff for the proceeds of such sale;, and that said defendants, on or about said date, received said goods from said plaintiff, to be sold as aforesaid, and to account to him for the proceeds thereof; but, that said defendants, though they admit they have sold said goods, and, though frequently requested, have refused to account to said plaintiff, or pay over to him the proceeds of such sale, or any part thereof, and that said defendants have wrongfully converted said property, or the proceeds of the sales thereof, to their own use, to the damage of this plaintiff,„in the sum of one thousand dollars.
    “ Wherefore, said plaintiff prays that said defendants may be adjudged to make to him compensation in damages to the amount of one thousand dollars, besides the costs and disbursements of this action.”
    The answer sets up a general denial of every allegation except as stated in the answer, and alleges that defendants received the beef from the plaintiff as his property, and to be sold on his account and benefit, and not otherwise, and that they have sold it, and rendered him an account of sales, and endeavored to settle with him, but he has refused to do so, and that they advanced plaintiff five hundred and seventy-one pounds three shillings and two pence, and further that they have a set-off against the plaintiff.
    The evidence at the trial showed that the plaintiff was a provision broker, that the beef belonged to one Wood, residing in Ohio, that it was in plaintiff’s care for sale, that plaintiff had placed the beef in the charge of one Amelung, who issued to him a' warehouse receipt which plaintiff had pledged to the New York Warehouse arid Indemnity Company, for advances made by them to him in his own name upon the beef.
    In this condition of affairs plaintiff applied to one of the defendants (they being copartners), and informed him that he had the beef in his care for sale, and he wished to dispose of it, that, the beef belonged to a Mr. Wood, of Ohio, and proposed that the beef should go to some place on the other side of the water to be sold, and further proposed that defendants should make an advance on the beef wherewith to pay off the warehouse company, and then should take it, ship it abroad, and sell it. Defendants agreed to this proposition, engaged freight on the Virginia, and made the advance;
    The beef being in charge of Mr. Amelung, an inspector of beef and pork,, who also acted for the warehouse company, he under 0the plaintiff’s ^ direction shipped it on the Virginia, took the shipping .receipt to defendants, received the advance they had agreed to make, receipting for it in plaintiff’s name, delivered the shipping receipt to defendants, and with the money received from defendants paid off the advance made by the warehouse company, and took up the receipt held by it. ,
    There was evidence that the beef was worth at that time in the market seven thousand and eighty dollars. The plaintiff testified that he had no interest in the suit except as the representative of Wood.
    The plaintiff having rested his case, the defendants’ counsel moved to dismiss the complaint on the grounds: First. That an action of trover cannot be brought in the name of the agent, but must be brought in the name of the owner.

      Second. That the proof shows that the plaintiff has no case whatever as against the defendants, on the proofs and pleadings in the cause.

      The motion was granted and plaintiff excepted. Thereafter judgment was entered on such dismissal in favor of defendant against the plaintiff for the costs of suit. From this judgment plaintiff appeals.

      Elias J. Beach, attorney and of counsel for appellant.

      Richard II. Huntley, attorney and of counsel for respondent.
   By the Court. —Curtis, J.

The defendants claim that the position of the plaintiff was simply that of a broker in the transaction, and that he had none of the rights of a factor to maintain a suit. The distinction between a broker and a factor is,- that it is peculiarly the office of the former to simply act as a negotiator between the parties, while the factor is entrusted with possession, management and control of the goods, and authorized to buy and sell in his own name as well as that of his principals (Story on Agency, §§ 33, 34.; Baring v. Corrie, 2 B. & Aid. 148; Higgins v. Moore, 34 N. Y. 418, 419). The evidence establishes that the possession and acts of the plaintiff, in respect to the property, were those of a factor, and that he was recognized as such by the defendants, who as such paid him their advances on the property, and followed his directions in shipping it.

The plaintiff had all the rights of a factor to proceed against the defendants, if they failed to account for the proceeds of the sales. Before the adoption of the Code it was held, that where goods were consigned by the owner to a factor to sell, that the parties to whom he consigned them to sell, must account to him as their principal for the proceeds, and he could sue for them in his own name. This right of a factor was recognized by Lord Manseield, in Drinkwater v. Goodwin, Cowp. 856, and early established in this State (Soland v. Murray, 17 Johns. 24). Since the adoption of the Code, it has been held that a factor who contracts in in his own name, on behalf of his principal, is a trustee of an express trust within the meaning of section 113 of the Code, and is the proper party to bring an action upon the contract (Grinnel v. Schmidt, 2 Sandf. 710; Rowland v. Phalen, 1 Bosw. 43; Considerant v. Brisbane, 22 N. Y. 889). The defendant’s objection, that the plaintiff cannot maintain the present action in his own name, cannot be sustained, and the plaintiff’s exception to the ruling of the court dismissing the complaint upon that ground is well taken.

The remaining question in the case is whether the. proofs and pleadings showed that the plaintiff had any case whatever against the defendants. The court ruled that they did not, and to this the plaintiff excepted. Conceding the view of the defendants to be correct, that the plaintiff failed to sustain the action of trover, it by no means follows that the complaint is to be dismissed, when there are facts alleged in the complaint and established by the evidence sufficient to justify a recovery upon a different theory or form of action (Conaughty v. Nichols, 42 N. Y. 88). In this case it "was held, that a complaint, very nearly the counterpart of the one in the present action, containing a statement of facts constituting a cause of action on contract, sustained by proof of such facts on the trial, authorizes a recovery, although it is in form for a conversion, and the summons in the action is for relief.

In the case at bar, striking out the words in the complaint alleging a conversion, and there remains a state-' ment of facts supported by the evidence, constituting a cause of action ; and the same principle should be applied here as in Conaught v. Nichols, 42 N. Y. 87, “that the plaintiff should not be deprived of a judgment, because the complaint contained an allegation which was unnecessary to such cause of action, and which might well have been disregarded.”

In the opinion of the court it is clearly intimated, that where the defendant chooses to accept such a complaint, without moving to strike out, or to make it more certain, or to compel the plaintiff to elect in regard to the form of action, he should not on the trial be allowed to prevent a recovery where sufficient facts are alleged and proved to constitute a cause of action; also, that if the summons is for- relief, and therefore not adapted to a recovery in another form, that the defendant should, have resorted to his remedy by motion.

In Gordon v. Horstetter, 37 N. Y. 104, Porter, J., observes, “that under our present system of pleading, a party who has alleged and proved facts entitling him to judgment for moneys had and received, will not be barred from that relief by his failure to prove other and further allegations, which would have entitled him to a more stringent remedy.”

Applying these principles to the facts alleged and proved in the present action, it is apparent there was a cause of action on contract, made out against the defendants, and which should not have been dismissed at the trial.

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

Freedman, J.

I concur. I am also of the opinion that having accepted the charge, and undertaken the sale of the goods under the special contract testified to by the plaintiff, and with knowledge that the plaintiff was not the real owner, but merely a factor, the defendants, upon the proof as it now stands, are estopped from claiming that the goods were received by them as the property of the plaintiff individually.