text:
    CASSA MARITTIMA, Respondent, v. PHENIX INSURANCE COMPANY, Appellant.

      Marine insurance — loan upon vessel and freight — insurable interest — election of remedies.

    .A foreign corporation made a loan to the master of a foreign vessel upon it and its freight, and thereupon received a written stipulation in connection with such loan, which provided that neither the master nor the owner of the vessel should procure any further advances upon the same freight at the port of loading, and that, in that event, they should become personally liable for the loan, even though the vessel were lost. Without the knowledge or consent of said corporation the master procured a further loan, soon after which the vessel was disabled and became unable to complete its voyage.
    In an action upon a policy of insurance issued to secure the corporation which made the loan, it was claimed by the insurance company that the insured, by the act of the master in making the further loan, had lost its interest in the freight and had, consequently, no insurable interest to be protected by the policy.

      Meld, that such act of the master did not vitiate the insurable interest of the corporation, and that the latter, at its election, might proceed upon the policy, or against the master and owner by virtue of the terms of the written stipulation.

      Appeal by the Phenix Insurance Company from a judgment, entered in the office of the clerk of the city and county of New York on the Yth day of August, 1890, upon a decision of the court directing a judgment for the plaintiff, with costs, after a trial at the New York Circuit, before the court, without a jury.
    ■ Edwa/rd P. Lyon, for the appellant.

      Edward K. Jones, for the respondent.
   Daniels, J.:

The recovery herein is for the amount of a loan made by the plaintiff, a corporation existing and doing business in the city of Naples, in the kingdom of Italy, to the master of the vessel, Buoni Amici, for the payment of which her freight was hypothecated, as well as the vessel herself. The loan was made at Pensacola, in Florida, where the vessel was then lying, that being a foreign port and she being an Italian craft. "When the loan was made the agent of the plaintiff took from her master the following instrument:

£400. Pensacola, Fla., August 31, 1886.
Fifteen days after arrival at the port of destination, River Plata, or other intermediate port at which shall end the voyage of my vessel, denominated Buoni Amici, I promise to pay to the order of the Cassa Marittima, of Naples, the sum of four hundred pounds, sterling, value received, in cash as a loan on freight for the last expenses necessary to the undertaking of the voyage from Pensacola to River Plata, and I hereby assign therefor, to the said Cassa Marittima, enough of the present freight to cover the sum of the above loan, with power to collect when due, and I hereby hypothecate ship and freight for repayment of said loan, with nriority over every other credit, and in case of total loss the amount received as loan shall not be paid back, and I accept all the conditions set down in the regulations of the Cassa Marittima relating to loans on freight, of which I received a copy.
B. QITARTINO.

Among the stipulations or regulations accompanying and made a part of it, that numbered fifteen is the only one important to be specially considered in the determination of this appeal. By that regulation it was declared that: “ The owner or captain shall not take any other advances upon the same freight at the port of loading, or, in such ease, hold themselves bound to return the present loan, even though the vessel be lost.” The master did, in fact, violate this regulation by obtaining a further loan before the commencement of the voyage upon a similar hypothecation, amounting to the sum of $1,100. But that loan was made without the knowledge, privity or consent of the plaintiff.

After these loans had been made the defendant made and delivered to F. Dassori, for account of whom it might concern, its policy of insurance “ on advances against Captain’s draft upon the freight of all kinds of lawful goods and merchandise laden, or to be laden on board the good bark Buoni Amici.” The vessel subsequently proceeded upon her voyage, but, before reaching its termination, she was so much damaged by perils of the sea as to render it necessary to make the nearest port, and she was taken to Port Eads, in the State of Louisiana, where, by a survey, it was found that she had been so badly damaged as to be unfit to continue her voyage. It was thereupon ended, the cargo discharged and the vessel sold-Notice thereof and proof of loss was served upon the defendant,, which refused to pay on account of the violation of this fifteenth regulation by the making of the second loan while the vessel laid at Pensacola, and before the commencement of her voyage.

It is, without doubt, essential to the right of the plaintiff to-recover on the policy, that it should be authorized to resort to the freight for the reimbursement of the loan, and that this authority should continue unimpaired. For without that there would be no-insurable interest in the plaintiff. And that right depended upon the fact that payment could alone be secured by the earning of the-freight through the delivery of the cargo at its port of destination. But as the making of the second loan was without the plaintiff's-knowledge or consent, this right or interest was not defeated by it. The lien or right was created by the loan, and the instrument subscribed by the master. It thereby became vested in the plaintiff, and the master was incapable of divesting it by any act or wrong-on his part short of satisfaction of the debt. The fifteenth regulation did not of itself defeat the interest or lien of the plaintiffs in the event of a subsequent loan. It did no more than to entitle the lender to proceed against tlie owner and master for the recovery of the loan in ease it elected so to do. It was in no sense made -obligatory that it should abandon its-lien upon or interest in the freight if a violation of this regulation should take place by the act alone of the master. The most that was done was to provide another remedy, which the plaintiff was at liberty to follow or not as it -elected. It did not elect to accept that remedy, and in its effort to secure it for the defendants’ benefit by a suit in Italy against the owners it was, in fact, defeated. But to indemnify itself the plaintiff has asserted and relied upon the continuance of an insurable interest in itself arising out of the terms upon which the loan was made. And that it was entitled to do, for this right could only be avoided by its own consent, or surrender, or a release, or satisfaction having the same effect. (McKnight v. Dunlop, 1 Seld., 537, 544.) The wrong of the master, unsanctioned and unapproved by the plaintiff, it is clear on principle, as well as' authority, could not be attended with that result. (Conard v. Atlantic Ins. Co., 1 Pet., 386, 437; The Ship Virgin, 8 id., 538, 553.)

In the cases of Stainbank v. Fenning (11 C. B., 51) and Stainbank v. Shepard (13 id., 418), no maritime lien or interest whatever was at any time created, and no hypothecation of the ship or freight took place. And for that reason they maintain no principle which would turn the plaintiff over to the master and owner personally for indemnity, while in this instance that lien or interest was regularly and legally secured. (The Brig Draco, 2 Sumner, 157.) And it was not, and could not be, displaced or contravened by the wrong of the master, who in no manner represented or acted for the plaintiff. If it be admitted that it gave the plaintiff another ground of action, it was not bound to resort to it, but it could insist still upon the security, which in good faith had been created and provided for it. (The Brig Hunter, 1 Ware’s R., 251.)

There was no concealment or misrepresentation on the part of the plaintiff or its agent, affecting its right to resort to the policy for indemnity after the loss of the vessel, neither was there any breach -of warranty established. That is not claimed to have arisen, unless it was created by the final and second loan. But no assurance was given that it should not be made, neither did the policy contain anything prohibiting .it, as long as it was without the knowledge or assent of the plaintiff. The most that was done by the fifteenth regulation was, that, if such a loan were made, the plaintiff might then resort to the master and owner personally to recover its money. It was a privilege secured to it, not a remedy which it was obliged to adopt. No warranty whatever to this effect appears by the policy. And that fact seems fatal to its existence. For it has been held that a warranty whose breach produces a loss of the insurance should appear on the face of the policy. It must be evident in terms or from necessary construction. (Jefferson Ins. Co. v. Cotheal, 7 Wend., 73, 80.) And neither has here been established. (Owens v. Holland Purchase Ins. Co., 56 N. Y., 565, 572, 573 Vilas v. N. Y. Central Ins. Co., 72 id., 590.)

Upon no other ground was any defense presented to the plaintiff’s action. But its right to recover was legally maintained and the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    THEODORE E. MACY and Others, Respondents, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY and Another, Appellants.

      Injunction to prevent an injury to real pi'operty — reversioner entitled to it — conveyance of easements by a lessee to the lessor.

    Under section 1665 of the Code of Civil Procedure, providing that one seized of an estate in reversion or remainder may maintain an action for an injury to the inheritance, notwithstanding any intervening estate for life or years, a reversioner is entitled to an injunction to prevent such an injury, notwithstanding the existence in full force of a lease of the premises granted by him.
    Semble, that a release, by a tenant to the owner of the fee,of all interest in the street in front of the demised premises, and in any easements appurtenant thereto which were granted by the lease, is a valid conveyance, so far as to transfer any right to compensation for an attempt to interfere with such interest and easements by a third party. Such an instrument is not a severance of the easements from the land, but reinvests them in the owner to the extent of enabling him fully to protect any encroachment upon the reversion.

      ■ Appeal by tbe defendants, the Metropolitan Elevated Railway Company and the Manhattan Railway Company, from a judgment, entered in the office of the clerk of the county of New York on the 20th day of January, 1890, in favor of the plaintiffs.

      Davies dé Batallo, for the appellants.

      Burrill, Zábrisláe dé Bu/rrill, for the respondents.
   Brady, J.:

This action was commenced June 18, 1889, and resulted in a judgment awarding to the plaintiffs $1,200 for loss of rents and granting an injunction, unless the defendants paid for a conveyance of the easements appurtenant to plaintiffs’ premises the sum of $5,000. It is found by the learned judge who presided at the trial that the plaintiffs’ testator united, while living and a member -of Macy & Company, in a lease to one William Simpson for five years of the whole of the locus in quo from September 1, 1888, .and that the lessee since that time had been in possession of the premises. Upon this fact and the time of the commencement of the action the defendants requested the court to find as follows :

Twenty-first. On the 28th day of August, 1888, said Theodore E. Macy and Charles II. Macy, comprising the firm of Macy & Company, leased to William Simpson the whole of said pro]ierty for the term of five years from September 1, 1888, at the yearly rental of $1,200, and said Simpson has since that time been in possession thereof as tenant under said lease.” Which was refused. This presents the appellant’s first point on the brief, in which it is contended that the judgment should be so modified as to be operative only upon the expiration of the demise to Simpson. It is not disputed that the plaintiffs are entitled to an injunction for -the protection of their reversionary interest, but insisted that such interest is amply protected by an injunction which becomes operative when the estate vests in possession. This view is fallacious. The right of the owners of the reversion to protect the inheritance seems to be settled law. The Code of Civil Procedure, section 1665, provides that a person seized of an estate in reversion or remainder ■may maintain an action founded upon an injury done to the inheritance, notwithstanding any intervening estate for- life or for years (see, also, Mortimer v. El. Ry. Co , 57 Supr. Ct., 509); but if any doubt exist, it is dispelled by a release from the lessee of all interest in the street and avenue in which the premises are situate, and in any easements appurtenant thereto, which were assigned or transferred by the lease or which the lessee had or owned, or which was taken or appropriated by the Manhattan Elevated Railway Company or Metropolitan Railway Company. This paper was executed at the request of Mr. Maey, and without consideration. It was regarded by Mr. Simpson as of no value to him and he signed out of courtesy to Mr. Macv. The facts of its execution and delivery still exist, however, and as Mr. Simpson does not claim any relief in reference to it and abides by it and its effect, whatever that may be, it is not in the power of the defendants to assail or question it, except as to its legal effects upon the defendant in this proceeding. If it 'convey nothing to the grantees, it is of no value to them; if it does, it must be placed to their credit.

It is not an attempt, however, to accomplish such a separation, but a reunion with the fee in the owner of the fee, being a release of the interest described by the tenant to his landlord, and not a release of the demise itself. In other words, there was no intention to yield the right to light and air as appurtenant to the demise, but to any right to compensation for any attempt to interfere with it, and thus to meet what might be regarded as a technical objection to the right of action by the plaintiff in presentí. There is nothing in the adjudication of Newman v. The Metropolitan Elevated Company (118 N. Y., 625) or Kenkele v. Same (55 Hun, 400) affecting the question discussed. All they decide is that easements cannot be considered as property separate and distinct from the land to which they are appurtenant in the estimation of damages, not that no interest in them can be transferred.

And in Reise v. Enos (8 L. R. A. [ Wis.], 617), also cited, it appears that the plaintiff was the owner of a lot known as No. 3, .adjacent to which was a lot known as No. 4, across the rear of which there was a right of way appurtenant to lot No. 3. The plaintiff sold lot No. 3, and in the deed inserted this clause: “ It is intended to specially reserve hereby from the operation of this conveyance the right of way to the parties of the first part, their heirs and assigns forever, the free and uninterrupted right of way across the rear of said lots 3 and 4.”

It was held, that the reservation was ineffectual, so far as it concerned the right of way across lot No. é, for the reason that the grantor had sold lot No. 3, from which the right sprung, and could reserve nothing appurtenant to it; he could not separate the easement from the land, in other words. This is wholly different from the question considered. The proposition, therefore, advanced in behalf of the appellants, that there was an attempted severance of the easements from the land, is not sustained. It is true that an easement separated, or attempted to be, from the land can be of no value. Here, however, the effect was to reinvest it in the owner of the fee, and to transfer an interest in it, not to detach it, and which would enable the owners of the reversion to protect any encroachment upon it.' The act seems to be above criticism when the object designed to be secured by it is understood. And, again, whether the release granted anything or not, its introduction, if improper, could not have been prejudicial to the defendants. The law gave the right of action to the plaintiffs as owner of the fee, notwithstanding the release.

The second point argued is that the judge at Special Term erred in finding that hot coals, grease and water fell from the defendants’ structure and penetrated into and upon the plaintiffs’ premises, and in finding that disagreeable odors and gases emanated from such structure. This would be technically correct if it be intended to exclude the locomotives as part of the structure, but such is not the finding. That the result of the use of the structure for traffic is to drop and scatter, and create these different factors, is clearly established by the evidence of several witnesses taken together, namely, Theodore E. Macy, Bates, Elliott, Stemle, Simpson, Bunk, O’Halloran; and the second point is not maintained. There is nothing collaterally discussed on this point which calls for any further examination of it, and it must be overruled.

The third' point taken, but not discussed, is that the judgment should be reversed; but as this is predicate of the first and second points, and they have not been sustained, it follows that the judgment must be affirmed, with costs. Ordered accordingly.

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

Judgment affirmed, with costs.


author: Yan Brunt, P. J.:

text:
    In the Matter of the Application of JOHN A. HOLMES for Leave to Issue Execution upon a Judgment against JAMES BOYLE, Deceased.

      Practice — learn to issue an execution where the debtor has conveyed his property — that the judgment is unsatisfied must bepimed by affidavit.

    The amendment to section 1380 of the Code of Civil Procedure, made by chapter 515 of the Laws of 1890, dispensing with the necessity of obtaining leave to issue execution against the real estate of a deceased person, where he has conveyed the same in fraud of creditors, does not apply to a case where a conveyance of his real estate made by the debtor has not been declared fraudulent, as against his creditors, by a competent court.
    It is not enough to allege in the motion papers that the conveyance was fraudulent.
    The proof required by section 1381, subdivision 1, of the fact that the judgment . remains wholly or partly unsatisfied, must be by affidavit, and it seems that such proof cannot be properly made'by petition.
    Appeal by John A. Holmes, petitioner, from an order, entered in tbe office of the clerk of the county of New York on the 19th day of November, 1890, denying a motion made by said petitioner for an order granting him leave to issue an execution to enforce a judgment recovered against one .James Boyle, since deceased, in his lifetime.

      Thomas J. Keigharn, for the appellant.

      I). Thornton, for the respondent.
   Yan Brunt, P. J.:

On the 26th of October, 1880, the petitioner and his brothers, William J. and Albert W. Holmes, obtained a judgment against one James Boyle, and the petitioner is the sole owner of the judgment which remains wholly unpaid and unsatisfied. The judgment-debtor died in or about January, 1881, and this application is made for leave to issue execution upon said judgment. This motion was denied upon the ground that, by the amendment of section 1380 of the Code made in 1890, it is provided that the section shall not apply to real estate which had been conveyed or might thereafter be conveyed by the deceased judgment-debtor during his lifetime, when such conveyance is made in fraud of his creditors, or any of them, and from the order denying the motion this appeal is taken. We think the learned judge erred in his application of the amendment referred to.

It is true, that iu the case at bar it is alleged that the judgment-debtor had, in 1873, conveyed certain premises in fraud of his creditors, but the amendment did hot apply to such a case, unless the alleged conveyance had been declared fraudulent, and then judgment-creditors might issue their executions, as matter of course, without application to the court. But until the fraudulent conveyance had been declared fraudulent, leave of the court was necessary in order that the judgment-creditor might issue execution. And it is sought to issue the execution in the present case, in order to lay the foundation, the necessary foundation, for the maintenance of a creditor’s action to set aside this alleged fraudulent conveyance, if' such conveyance exists. After such suit has been brought and such conveyance has been declared fraudulent, then the amendment of section 1380 applies and leave of the court is not necessary to issue an execution to reach the real estate, as to which the fraudulent conveyance has been set aside.

It is urged that the judgment recovered against the deceased could not be a lien against this.real estate, because more than three years and six months have expired since the decedent’s death. We think this is an erroneous interpretation of the provisions of section 1380, and that it was in no way intended to limit the length of the lien provided by section 1251, but, on the contrary, to extend the same under certain circumstances beyond the period of ten years provided by the latter section.

There is another point taken, and that is that by section 1381 it is provided that the proof before the court shall be made by affidavit, whereas this proceeding is initiated by petition, and there is no •affidavit before the court. If this objection had been taken in the court below, we think it would have been fatal to the proceeding, but. as it does not appear to have been then taken, we think that the •question of the irregularity of the initiation of the proceedings was waived.

Upon the whole case, therefore, we think that the order appealed from should be reversed, with ten'dollars costs and disbursements .and the motion granted.

Brady and Daniels, JJ., concurred.

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


author: Daniels, J.: Yan Brunt, P. J.:

text:
    ALFRED C. BARNES and Others, Respondents, v. FREDERICK D. BLAKE, Appellant, Impleaded, etc.

      JPartition — a tenant by the curtesy initiate is nota necessa/ry yrn'ty — his joinder not a ground of demurrer.

    In an action for partition the husband of a tenant in common of lands is not, although he is tenant by the curtesy initiate, a necessary party, but his joinder as a defendant is not a ground of demurrer.
    A misjoinder of parties defendant is not a ground of demurrer under section 488 of the Code of Civil Procedure. Such an objection should be taken by answer.
    ■ Appeal by the defendant Frederick D. Blake from an order and interlocutory judgment, entered in the office of the clerk of the county of New York on the 3d day of May, 1890, overruling the demurrer of- said defendant to the complaint, with costs, and granting leave to the defendant to answer over on payment of costs.

      G. Baimbridge Smith, for the appellant.

      Flamen B. Gcmdler, for the respondents.
   Daniels, J.:

The defendant, Frederick D. Blake, has been made a defendant in this action, which is for the partition of real estate, upon the allegation that he was a tenant by the curtesy initiate, as the husband of the defendant, Sarah Frances Blake, who is one of the tenants in common. The demurrer was served, on the ground that the complaint stated no cause of action against him. And that objection seems to be well founded, for the law has not authorized nor required the husband to be made a party to an action of partition, when his wife may be interested in the property to be divided. Who are to be made parties has been declared by section 1538 of the Code of Civil Procedure. That, section does provide for making the wife a party, for the reason that she has an inchoate Tight of dower. That is an existing right which may develop into .a title, and surely will do so on the decease of the husband leaving his wife surviving him, unless she previously released her interest in the land. But with the husband the case is entirely different, for he can have no interest or right until the decease of his wife, and -only then in case there has been issue born alive, capable of inheriting the land. Her conveyance, or divestment of title, during her life will prevent the estate, by way of curtesy, from ever coming into existence. (3 R. S. [6th ed.], 159, § 75.) And it is doubtless for that reason that the husband by this section has not been permitted tó be made a party until he shall first have become a tenant by the curtesy. If 'it had been intended that he should previously be brought in as a party, the section would have so declared, as it has in the case of the wife having an inchoate right of dower. The requirement that she shall be' a party, and the omission of it in the case of the husband, is significant evidence of the intention to exclude him until he shall be, in fact, as the section has declared, an actual tenant by the curtesy. This construction is not only supported by the language of the section, but it is further maintained by section 450 of the same Code declaring that “it is not necessary or proper, to join her husband with her as a party in any action or special proceeding affecting her separate property.” These sections are entirely harmonious and require the husband to be excluded as a party. The husband in this case is not a person who, by any contingency contained in any devise or grant, or otherwise, is or may become entitled to a beneficial interest in an undivided interest in the property. For by no devise, grant or other instrument was such a contingency ever created. .And in the connection in which the words “ or otherwise ” have been used that is the construction required to be placed upon them. (Lewis v. Smith, 5 Seld., 502, 520.) They were added to include any like or similar source of a contingent interest, and not to include a mere possibility that the husband of a tenant in common may outlive his wife, and, after issue born alive of the marriage, may finally become a tenant by the' curtesy. This construction is also supported by the omission specifically to provide for his being made-a party, when the fact was within the legislative contemplation in framing the section, and his presence was only provided for as a party after he should, in fact, become a tenant by the curtesy. And this construction was adopted in Mapes v. Brown (14 Abb. N. C., 94). And to the like effect is Trustees of Jones Fund v. Both (18 Weekly Dig., 459).

But the fact that this defendant was not either a proper or necessary party, did not authorize him to demur to the complaint on the ground taken in his behalf. For it did very clearly state a cause of action for the partition of this real estate. And the complaint, therefore, was not liable to the objection mentioned in the demurrer. It is only when the complaint “ does not state facts sufficient to constitute a cause of action ” that a demurrer in this form can be sustained. But that is not the condition of this complaint. It does state a cause of action, which is sufficient to exclude it from this subdivision of section 488 of the Code of Civil Procedure. (Foulks v. Foulks, 25 N. Y. St. Rep., 339.)

The only class of cases in which a demurrer has been authorized by section 488 of the Code of Civil Procedure for an excess of parties is where there is a misjoinder of plaintiffs. The misjoinder ■of defendants was not deemed so serious a defect as to require a demurrer for its redress. It has, therefore, been left as it stood under the former system of practice, to be corrected by answer, byway of disclaimer, where the party has no interest in the subject of the action. The Special Term should not only have overruled, but also dismissed the demurrer as improperly served.

And the order should be so modified, and, as modified, affirmed, with coáts.

Brady, J., concurred.

Yan Brunt, P. J.:

I concur in the result of Mr. Justice Daniels’ opinion only. It seems to me that as the learned judge has thought it necessary to discuss so elaborately the question as to whether the husband is a necessary party, it is apparent that he was a proper party, as in a partition suit every person is a proper party, who may have even only a colorable claim.

Order modified as directed by opinion, and as modified affirmed, with costs.


author: Yan Brunt, R. J.:

text:
    CATHARINE L. SMITH, Respondent, v. HUGH McQUADE, Appellant.

      Bupplementa/ry proceedings — order that the debtor transport his property to a receiver, invalid — indefiniteness of the order.

    A court lias no power, in proceedings supplementary to execution, to order the-debtor to deliver property, which, is situated in another portion of the State, to the receiver appointed in such proceedings, at his office in the city of New York.
    Such an order, which requires the delivery of certain hay without specifying the' number of tons, and of certain corn and oats without specifying the number of bushels, is too indefinite and cannot be enforced.
    .Appeal by the defendant Hugh McQuade from an order, made by a justice of the Supreme Court and entered in the office of the clerk of the county of New York on August 28, 1890, directing the defendant to deliver to Ellett Iiodgskin,-the receiver appointed therein, at No. 20 Nassau street, in the city of New York, at twelve o’clock noon of the second day after due service upon him of a copy of the order, the following goods and chattels: There then followed in the order an enumeration of various chattels, among which were two cows,----tons of hay, .... bushels of oats,____bushels of corn, .... oat straw, two plows, etc.

      F. O. Trautmann, for the appellant.

      8. Jones, for the respondent.
   Yan Brunt, R. J.:

A judgment having been obtained against the defendant, proceedings supplementary to execution were had and the judgment-debtor examined and a receiver of his property appointed. By such examination it is claimed that it appeared that at Cornwall, in the State of New York, the judgment-debtor had certain property, consisting of household furniture, wagons, harness, farming implements, hay, oats and corn; and by the order appealed from, the-judgment-debtor was directed to deliver this property to the receiver, who had been appointed in the supplementary proceedings, at No. 20 Nassau street, in the city of New York. There was a particular enumeration of the wagons, harness and farming implements, but tbe number of tons of hay, bushels of oats and bushels of corn was left blank.

From this order the judgment-debtor has appealed. It is plain that the court had no power to compel the judgment-debtor to transport this property from Cornwall to this city to be delivered to the receiver. If the receiver wanted it, he was compelled to go after it, and we rather think that he would have been somewhat embarrassed by receiving at his office at No. 20 Nassau street, wagons, harness, farming implements, tons of hay, bushels of oats, corn, etc. In fact, the order was one impossible to be complied with.

There is another difficulty with the order, and that is, it was too indefinite. There was no specification of the numbor of tons of hay or bushels of corn or of oats. Who was to determine when the debtor had delivered the .... bushels of corn, the .... bushels of oats and the .... tons of hay provided for in the order ?

As already stated, the court had no power to compel the judgment-debtor, under pain of imprisonment, to transport this property from Cornwall to the city of New York. At the best the receiver was bound to go to Cornwall and there receive the property. But it is doubtful, under the circumstances of this case, whether a delivery of the property could be compelled and whether the receiver must not be remitted to his action to recover possession of the same.

The order should be reversed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concurred

Order reversed, with ten dollars costs and disbursements.


author: Per Curiam:

text:
    DANIEL E. SICKLES, Sheriff, etc., v. JOHN C. WILMERDING and Others. DAVID A. SULLIYAN, Receiver, v. SAME.

      Interpleader — which action should he continued by the order. ■

    Where an action upon contract is brought by a sheriff, and thereafter an action is brought by a receiver to recover the same money from the same defendants, and the latter apply for an order of interpleader, such order should provide for bringing the receiver into the sheriff's suit, and not the sheriff into the receiver's suit.

      Appeal by Daniel E. Sickles, as sheriff, the plaintiff in the first above-entitled action, from an order of the Supreme Court, entered in the office of the clerk of the county of New York on the 9th day of October, 1890, by which it was, among other things, directed that Daniel E. Sickles, as sheriff of the city and county of New York, be, and he hereby is, substituted as defendant in the above-entitled action (David A. Sullivan, Receiver, etc., v. John G. Wilmerding and others), in the place and stead of the defendants, John C. Wilmerding, J. Currie Wilmerding, John J. Morris, Cornelius B. Mitchell and John J Morris, Jr., composing the firm of Wilmerding, Morris & Mitchell.
    On the 9th day of June, 1890, an action was commenced by Daniel E. Sickles, as sheriff of the city and county of New York, and on the thirteenth day of June an action was commenced by David A. Sullivan, as receiver of Rosenberg & Baker, against the same firm. The actions in each case were on contract, and were to recover in each case the same moneys. The defendants applied for and obtained the order of interpleader, which has been appealed from.

      D. P. Hays, for the appellant Sickles.

      W. Mitchell and F. R. Kellogg, for the respondents Sullivan, receiver, and Wilmerding and others.
   Per Curiam:

It seems to us beyond question that both the actions which are brought against the defendants Wilmerding, Morris & Mitchell come within the definition of actions upon contract, and the right to recover depends upon priority of liens ; and the only controversy arises between Sickles, as sheriff, and Sullivan, as receiver, in respect to such priority. This being the case, the defendants have no interest in the controversy, and should be relieved upon paying the subject-matter of the controversy into court. We think, however, that the court below erred in making the sheriff defendant in the receiver’s suit. The sheriff’s action was first commenced, and the receiver having subsequently commenced an action, if any inter-pleader was made he should be brought in as defendant in the sheriff’s suit.

We tbink, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, to abide the final event of the action, and an order of interpleader entered in the action of the sheriff bringing in the receiver as defendant and discharging Wilmerding, Morris & Mitchell upon payment of the money into court.

' Present — Yan Brunt, P. J., Brady and Daniels, JJ.

So ordered.


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

text:
    HUGH N. CAMP, Respondent, v. MICHAEL REDMOND, Appellant.

      ■Uontraet foi' the sale of land — necessity of an allegation as to a default in the contract, and as to readiness to perform, in an action for its enforcement.

    In an action brought to recover damages for the. non-performance of a contract for the sale of lands, which was to be completed on November 11, 1889, it was alleged that the plaintiff was, on such date, ready to deliver a sufficient deed of the premises at the place specified in the contract; that the defendant was not there, and failed to complete his purchase, and that the plaintiff, after notice to that effect to the defendant, sold the property at public- auction.
    The defendant alleged in his answer that he had no knowledge or information sufficient to form a belief as to the allegations of the complaint, and, further, that the land described in the complaint was, on October 12, 1889, knocked down to the defendant at public auction by the plaintiff’s authorized agent, and that he had paid to the plaintiff $800 on account of the purchase-money; that the plaintiff, on December 10, 1889, sold the property at public auction to a third person and thus put it out of his power to perform the contract; that he still retained the defendant’s money, which the defendant asked to offset against any recovery that the plaintiff might obtain in the action, if any; and, if none, that the defendant should recover said $800.
    A demurrer having been interposed by the plaintiff to this answer, it was

      Held, that the demurrer should be sustained, as the defendant did not allege in his affirmative cause of action that he was ready and willing to perform the contract of sale at the time appointed, which it was necessary for him to allege in order to succeed in this affirmative cause of action.
    Where a purchaser of land makes default in executing the contract on his part, the vendor is not bound to wait indefinitely before he is at liberty to dispose of the property to another, and in such case his disposition of it after a reasonable lapse of time does not give the purchaser a cause of action.

      Appeal by the defendant Michael Redmond from an interlocutory judgment, entered in the office of the clerk of the county of New York on May 21, 1890, whereby the demurrer of the plaintiff' to that portion of the amended answer, numbered “second,” was. sustained, with costs to the plaintiff.

      Harry A. Forster, for the appellant.

      James 'O. De La Mare, for the respondent.
   Van Brunt, P. J.:

I cannot concur with the conclusion arrived at by Mr. Justice-Daniels, that under the facts alleged in the answer the defendant would be, if they were true, entitled to recover the amount of his. deposits. The facts seem to be that the plaintiff contracted to. convey to the defendant certain real estate, and the defendant contracted to pay for the same on the 11th day of November, 1889,. and paid $300 down. There are no allegations in the answer, setting-up the counter-claim or set-off, that the defendant ever was ready to-take the property, or that the plaintiff failed in any respect in reference to his part of the contract.

It is urged by Mr. Justice Daniels that the defendant has not. admitted that he was in default. This is true ; but in his affirmative-cause of action he has not alleged that he was ready and willing to-perform at the time appointed. It is necessary for him to allege.- and prove this to succeed in his affirmative cause of action.

All that is alleged is, that the plaintiff sold the property to somebody else on the tenth of December. Where a purchaser makes, default the seller is not bound to wait forever to dispose of the-property to another without giving the purchaser a cause of action.

The judgment should be affirmed, with costs.

Brady, J., concurred.

Daniels, J.

(dissenting):

The action is for damages for the non-performance of a contract made for the sale and purchase of land. The sale was made by auction, and it was to be completed on the 11th of November, 1889. It is alleged in the complaint that the defendant, in that respect, failed to fulfill the terms of his agreement to accept the deed and otherwise perform on his part. But the ability and readiness of the plaintiff to convey the property has been put in issue by the answer of the defendant.

The defendant then, by way of a set-off, partial defense and. counter-claim, further answered that the ten lots described in the complaint were knocked down to him at public auction by the plaintiff’s agent. And the answer then proceeded to state:

That plaintiff, in selling such lots, agreed to convey them to the purchaser at such auction sale on receiving the purchase-money, less, sixty per cent thereof, which could remain on bond and mortgage-at the option of the purchaser.

That the defendant paid to the plaintiff $300 on account of the purchase-money.

On information and belief, that, on December 10, 1889, plaintiff sold the property at public auction to a third person, and thus put. it out of his power to perform his contract and convey the property in fee to the defendant, and that plaintiff retained, and still, retains, $300 paid to him by the defendant on account of the purchase-money.

That the defendant is entitled to have the $300 offset against any recovery that the plaintiff may obtain in this action, if any; and iff plaintiff should fail to recover, defendant is entitled to recover said $300 from the plaintiff.

Wherefore, the defendant demands judgment against the plaintiff for the dismissal of the complaint, and the sum of $300, besides the-costs of the action.

The plaintiff demurred to this answer on the ground that it failed to state a cause of action, and the demurrer was sustained by the Special Term.

No failure to perform the contract has been, in any form, admitted by the defendant, nor does it appear otherwise than by the-allegations of the complaint, upon which issue has been taken by the answer, how the contract was carried along to the month of December, 1889. It cannot be inferred from what has been set forth in this part of the answer that the defendant was at any time in default on his part. For no such default has been admitted, either expressly or by implication. But it is apparent from this-part of the answer that the lots continued to be owned by the plaintiff up to the 10th of December, 1889, and that he then sold them to another person. This put it out of his power to perform the contract he had made for their sale to the defendant. And dispensed with an offer, in the averment of readiness, to perform on his part. ( Weeks v. Little, 89 N. Y., 566; Woolner v. Hill, 93 id., 576.) It placed the plaintiff himself in default, as the case has in this manner been stated, and entitled the defendant to rescind, and recover back the $300 paid by him on the purchase-price of the lots. And he had the right to interpose that as a counter-claim in this action. The demurrer, therefore, should not have been sustained. And the judgment should be reversed and the demurrer overruled, with costs, but with leave to the plaintiff to withdraw it and reply in twenty days on payment of the costs of the demurrer and the appeal.

Judgment affirmed, with costs.


author: Daniels, J.:

text:
    BRIGGS PRIESTLEY, CHARLES H. PRIESTLEY and WILLIAM E. B. PRIESTLEY, Respondents, v. SAMUEL ADAMS AND JOHN FLANIGAN, Appellants.

      Ti'ade-marh — use of it, with the omission of certain words — when enjoined. •
    In an action brought by Briggs Priestley and others to restrain the defendants from advertising, selling, or offering for sale, any goods as “ Priestley’s,” which were not manufactured by the plaintiffs, it appeared that the plaintiffs were manufacturers of a class of goods marked and sold ,as “Priestley’s Silk Warp Henrietta.” That the defendants had advertised goods for sale as “Priestley’s Henriettas,” representing them on the sale to be those of Priestley’s manufacture, which was untrue.

      Held, that the plaintiffs were entitled to the relief asked for, and that the defendants could not, by the omission of the words “silk warp,” avoid the issuing of an injunction to restrain this use of the plaintiffs name.
    Appeal by the defendants from an order of the Supreme Court, -entered in' the office of the clerk of the county of New York on the 19th day of November, 1890, in favor of the plaintiffs, restraining and enjoining the defendants, their agents and employees, during the pendency of the action, from advertising, selling,.or offering for sale, any goods as Priestley’s which were not manufactured by the plaintiffs.
    Kneeland, Stewa/rt <& Epstein, for the appellants.

      W. J. Curtis (& Alfred JaretzT&i, for the respondents.
   Daniels, J.:

The plaintiffs are manufacturers at Bradford, in England, of a class of goods marked and sold, in the city of New York and elsewhere, as Priestley’s Silk Warp Henrietta. These goods had become favorably known and extensively dealt in by dealers in the city of New York, and appear to have been of a desirable quality and style of manufacture.

Proof by affidavits was made showing that the defendants had advertised goods for sale as Priestley’s Henriettas, at a much lower price than their selling prices, and had sold, at their store in the city of New York, goods represented to be those of Priestley’s manufacture, which, in truth, were not of that make or description. They were detected in these sales by two persons commissioned to buy the Priestley goods in May and September, 1890. They were remonstrated with after each sale, but denied that such sales had been made under their authority. But, from the affidavits, it may be assumed to have been proved, that sales were made in this manner of goods represented to be the Priestley manufacture, but, which in fact were not so, by a person in their employment. And it is quite improbable that he would have made the sales with this positive assurance, if that had not been permitted and sanctioned by the defendants themselves. The business was theirs and the profits in this manner obtained were theirs: and it is not to be supposed that persons employed by them would have made use of this device without their approval.

But while the plaintiffs identified and accompanied their goods with the name of Priestley’s Silk Warp Henrietta, as the defendants did not add that name and phrase to those sold by them, but went no farther than to advertise and represent them as Priestley’s Henrietta, it has been contended, in their behalf, that this was not sufficient to entitle the plaintiffs to an injunction restraining that use of this name. And a dicta to that effect has been found in the ■opinion upon which the case of Enoch Morgans Sons’ Company v. Troxell (89 N. Y., 292) was'decided. But it certainly is a fraud not ■only on the purchasers, but also on the manufacturer, to advertise .and sell goods as his which are of a different manufacture, and of an inferior and different quality. And as the deception is one which .it must be impracticable either to prevent or compensate by an action for damages, a proper case for the interposition of a court of equity will be presented. And so it has already been considered, and, in ■other instances, held by the courts. In Wotherspoon v. Currie (L. R., 5 Eng. and Irish App., 508) it was held that a name may become the trade-mark of the party, and that others infringing his right to its exclusive use as a distinguishing mark of his manufacture may be restrained from continuing to do that by an injunction. And in Jay v. Ladder (L. R., 40 Ch. Div., 649) it was held that this restraint could be applied to prevent the advertisement of the goods of one person as those of the manufacture of another. The same principle will sustain the injunction, as the courts have invariably applied it to prevent the simulated violation of a trade-mark. It rests .substantially upon the same facts. Eor there is presented the same injury to the exclusive right of the manufacturer, and the same deception and fraud upon the public in the one case as there is in the other. And that was unqualifiedly acknowledged in the decision of the case of McLean v. Fleming (96 U. S., 245, 254). And to the same general import is the case of Devlin v. Devlin (69 N. Y., 212). The right of the plaintiffs to the injunction includes the entire foundation of their action. As the case is now presented, a presumptive ground for it has been disclosed. It may turn out differently at the trial when the evidence shall be obtained unqualifiedly from the witnesses. But that possibility will not justify a disturbance of this ■order. And injustice in any view will be best prevented by continuing the injunction until the proofs of the parties can be presented in that manner.

The order should, accordingly, be affirmed, with ten dollars costs and the disbursements on the appeal.

Yan Brunt, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and the disbursements on the appeal.


text:
    THE ST. NICHOLAS BANK OF NEW YORK, Respondent, v. STATE NATIONAL BANK, Appellant.

      Negotiable paper — liability of a bank, receiving it for collection, for the non-payment of a draft for its proceeds transmitted to the depositor.

    A bank, receiving negotiable paper for collection, collected it through an apparently responsible agency from which it received, for the proceeds thereof, a draft drawn upon an apparently responsible bank, which draft it forwarded to the owner of the paper sent for collection; both the drawer and drawee of this draft failed before its payment.

      Held, that the bank receiving the paper for collection was not liable to the owner thereof for the repayment of its amount because of the failure of the drawer and drawee of said draft representing its proceeds.
    Appeal by the defendant, the State National Bank, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of April, 1890.
    The action was brought to recover the amount of a draft, with interest thereon, which had been sent by the plaintiff to the defendant for collection.

      A. Walker Otis, for the appellant.

      Ohcurles E. Hughes, for the respondent.
   Daniels, J.:

The verdict was directed for the amount of a draft sent by the plaintiff, a banking corporation located and carrying on the business of banking at the city of New York, for collection, to the defendant, a banking corporation located and carrying on a like business at Memphis, in the State of Tennessee. Previous business transactions of a similar nature had taken place between these banks, without any special agreement or arrangement beyond that of defining the defendant’s commission of one-fourth of one per cent and the necessary expenses attending the collections. The draft in this instance transmitted is as follows :

“Dallas, Texas, Nov. 6, 1884,
“ The National City Bank of Dallas,
“ Pay to the order of Henry Levy & Son, Four Hundred Seventy-three xB<nr dollars.
“ “ A. D. ALDRIDGE & CO.
“ Endorsed:
“Deposit St. Nicholas National Bank.
“HENRY LEYY & SON/’
“ Pay M. S. Buckingham, Cashier, or order, for collection for St. Nicholas Bank of New York.
“THOS. G. POLLOCK,
“ Cashier.”

On the day of the receipt of the draft the defendant sent it forward to Adams & Leonard, at Dallas, in Texas, for collection there. They were a banking firm at that place in good credit, and the correspondents of the defendant through whom their collections had previously been made. For that purpose its cashier indorsed the draft payable to Adams & Leonard for collection on its account. And they, on the 17th of November, 1884, presented it to the National City Bank for payment, which was then made to them. Adams & Leonard then drew their sight draft on Jemison & Co., of the city of New York, for the amount to be transmitted, and sent it to the defendant, and the latter forwarded the same draft to the plaintiff. But before it could be presented for payment both Adams & Leonard, the drawers, and Jemison & Co., the drawees, failed, and the debt was lost. The court at the trial held this to have been the loss of the defendant, and directed a verdict against it for the amount, to which an exception was duly taken.

It has not been maintained or charged that the defendant had become involved in any wrong, inattention or carelessness, but that where the proceeds of a collection of this nature have not been realized by the holder of the paper the collecting agent will necessarily be liable for the loss. And whether that is the legal rule to be applied is the point upon the determination of which this appeal must depend.

Authorities have been brought to the attention of the court, as they were also at the trial, which are supposed to dispose of this point in the plaintiff’s favor. They commence with and have chiefly followed the case of Bank of Utica v. M'Kinster (11 Wend., 473), where it was held that the bank with which a note was left for collection was liable for the failure to give the notice of non-payment, which was necessary to charge the indorsers. In the case of Allen v. Merchants' Bank (22 Wend., 215) this liability was again affirmed, and so far extended as to fender the collecting agent liable for the default of agents employed by it for the effectual collection of the debt. There the bank receiving the bill from the plaintiff' sent it to the Philadelphia Bank, in the city of Philadelphia, for collection. And that bank delivered it to its notary, who presented it for acceptance, which was refused. He then noted the bill for non-acceptance, but omitted to give notice thereof to the indorsers. When the bill became due it was in like manner presented for payment, and payment refused, when the notary protested it for non-payment. The question there was, whether the Merchants’ Bank of New York, which received the bill from the plaintiff, was liable to him for this omission of the notary to protest the bill for non-acceptance, and the court held that it was, although the defaulting notary was not selected to act by it, and was not its own agent or servant. The conclusion arrived at by the decision was declared by a formal resolution, holding that when a bank, broker or other money dealer receives, upon a good consideration a note or bill for collection in the place where such bank, broker or dealer carries on business, or at a distant place, the party receiving it for collection is liable for the neglect,, omission or other misconduct of the bank or agent to whom it is. sent, either in the negotiation, collection or paying over the money,, by which it is lost, or other injury sustained by the owner, unless there be some agreement to the contrary, express or implied. (Id., 243.) And this has been followed, although differing from the rule in several other States, in Montgomery County Bank v. Albany City Bank (3 Seld., 459); Commercial Bank v. Union Bank (L Kernan, 203); Ayrault v. Pacific Bank (47 N. Y., 570); Exchange National Bank v. Third National Bank (112 U. S., 282), and in cases also decided in other States. In this latter case the bill was sent to the defendant and under its authority presented to the drawee for acceptance, and he accepted it personally when it had been drawn on him as secretary of-the Newark Tea Tray Company. Here, as well as in the other cases mentioned or referred to, there was a distinct act of misconduct or neglect producing the loss on which the liability was directly placed. While in the present case there was neither wrong, inattention nor carelessness on which the liability of the defendant could be placed. But the prevailing mode of transmitting the funds collected was adopted and followed.

This case also differs in a very material respect from Mackersy v. Ramsays (9 Clark & F., 818), where the defendants were held liable because their correspondents had received the money and afterwards omitted, by reason of their failure, to remit or pay it over. The same result was reached, after a very full examination of the authorities, in Bradstreet v. Everson (12 Penn., 124). But the principle followed by these cases cannot logically determine the one presented by this appeal. For here- the defendant did not receive or retain the money; neither was there any default in that respect on the part of its correspondents in Dallas. For they at once remitted the proceeds of the collection by the means usually taken for that object. And they were lost, not by any misconduct at either place, •but by failures in business which will at times occur, but which ordinarily cannot be expected or anticipated. They are the misfortunes of business, entailing losses, without fault or misconduct, which must be sustained by the parties upon whom they fall.

In the case of Indig v. National City Banks (80 N. Y., 100) the important facts were like those now presented. The plaintiff delivered a note for collection to the defendant. It was payable at the Bank of Lowville, to which the defendant sent it for payment. 'The maker was a depositor in that bank, but resided about thirty miles therefrom. His balance was sufficient within thirty dollars to pay the note and the bank thereupon sent back its draft on New York for the amount of the note; but before it could be presented 'the bank at Lowville failed and payment of the draft was refused, :and the action there was to recover the loss. But the court held -.that the defendant was not liable, as the ordinary course had been followed, and there was no fault or negligence in selecting and using the means adopted for remitting the money. And the principle followed in deciding that case has also been sanctioned in Massachusetts (Buell v. Chapin, 99 Mass., 594) and that seems to be likewise the law in the State of Tennessee (Bank of Louisville v. Bank of Knoxville, 8 Baxter, 101).

The case of Faulkner v. Hart (82 N. Y., 413) justifies the application of no different rule to the decision of this case. That relates to a different subject, in no way including the present controversy. It is true that it is to be disposed of under the general rules of the commercial law. But there is no authority for holding the rule necessarily invoked for this case to be in any respect at variance with that which was declared and followed in the cases last mentioned.

. There is no well-sustained principle declaring the liability of the defendant under the facts now appearing, and the judgment should be reversed and a new trial ordered, with costs to the defendant to abide the result.

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

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.


text:
    HENRY WINTHROP GRAY, as Receiver of the NORTH RIVER SUGAR REFINING COMPANY, Appellant, v. THE OXNARD BROTHERS’ COMPANY, Respondent, Impleaded, etc.

      Illegal combination — dissolution of a corporation on account thereof in cm action brought by the State — right of the receiver to the fruits of the illegal combination.

    The receiver of a sugar refining company, appointed under a judgment, in an action brought by the State to dissolve the corporation on account of its having become a party to an illegal combination formed for the manufacture and sale of sugars, cannot maintain an action to recover the profits of the illegal transaction from another party engaged with the sugar refining company in such illegal combination, where it is necessary, in order to sustain the action, to appeal to and depend upon the terms of the illegal agreement.

      Qumre, whether, if the combination which resulted in the formation of the sugar refining company had been lawful, the receiver of one of the parties combining would have a right to an account of profits earned by the company, or whether all of such profits would belong to the holders of the certificates issued by the trustees of the combination.

      Appeal by the plaintiff from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 21st day of June, 1890, in favor of the defendant,, sustaining the defendant’s demurrer to the plaintiff’s complaint.
    Also an appeal from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 21st day of June, 1890, sustaining the defendant’s demurrer to the plaintiff’s complaint, with leave to the plaintiff to amend his, complaint within twenty days of the service of such judgment with notice of entry thereof, and directing final judgment to be entered upon the minutes, in favor of said defendant, should the plaintiff fail to amend his complaint.

      De Laneey Nicoll and John M. Bowers, for the appellant.

      John E. Pa/rsons and Elihu Boot, for the respondent.
   Daniels, J.:

The plaintiff was. appointed the receiver of the property and effects of the North River Sugar Refining Company under a judgment dissolving the corporation, on account of its having become a party to an illegal combination formed for the manufacture and sale of sugars, syrups and molasses. The judgment dissolving the corporation was brought by appeal before this General Term, where it was affirmed. (People v. North River Sugar Refining Co., 51 Hun, 351.)

■ An appeal was then taken to the Court of Appeals upon the disposition of which the judgment was again affirmed. (People v. N. R. S. R. Co., 121 N. Y., 582.) By the complaint it appears that the plaintiff, as receiver, has obtained possession of the money and property of the North River Sugar Refining Company, and' now has the same under his undisputed control.

But it is further alleged that the company entering into and forming the combination, which was- formed between it and other incorporated companies, created a partnership under which the business has since been carried on. And that gains and profits have, been derived from the business, which, by the deed creating-the association, are to be divided and distributed, and that he, as receiver’ of this company, is entitled to participate in that distribution. And judgment has been demanded that the partnership or association shall be dissolved on account of the dissolution, by operation of law, -of the North River Sugar Refining Company, and that a settlement of its affairs shall take place. The theory of the plaintiff’s action is that he, as receiver of the North River Sugar Refining Company, is entitled to maintain this action for the settlement of the affairs of the ■combination and the distribution of its assets, and his authority to maintain the action must necessarily depend upon the fact that the •company represented by him, as receiver, is entitled to the relief, in whole or in part, which he has demanded. If he, as receiver, has no interest in or right to recover any part of the assets or profits of the combination, then it follows that the action which he has instituted ■cannot be maintained. Whether he has that right must be determined by the construction of the deed under which the combination was formed, and the transactions following the execution of that ■deed. The deed itself will be found in the report of the case of the People v. The North River Sugar Refining Company in the Court ■of Appeals (sxopra). By this deed the combination which was formed was denominated the Sugar Refineries Company. Its affairs were to be managed by a board of eleven trustees, which might be increased to thirteen by a vote of a majority of its own members. And it was provided in this deed that the capital stock of each corporation becoming a party to it should be transferred to this board, and that in lieu of such stock there should be issued 500,000 shares, of $100 each, by the board and distributed, as was afterwards pro-* vided. The form of the certificates to be issued .in this manner was made a part of the deed or agreement. These certificates were made transferable by indorsement in like manner as the shares óf stock issued by a corporation. It was further provided that the shares of the capital stock of the several corporations should be transferred to the names of the board of the Refineries Company as trustees, to' be held by them and their successors as joint tenants, and that this board should hold the stock so transferred, with all the rights and powers incident to stockholders in the several corporations. And certificates, to be issued in place of these shares; were to be apportioned among the different corporations which became parties to the deed. And it was then provided that the shares assigned to the several refineries should be distributed by them to and among the parties interested therein, and that holders of stock in the Refineries Companies should be entitled to so many of the shares allotted to each refinery as should be in the proportion of his stock to the capital of such company. And that shares for stockholders of any refining company who should not surrender their stock might, under the direction of the boai’d, be deposited for their account, with the right to receive the same upon the surrender of their stock. It was further provided that, in the allotment of shares, fifteen per cent of the certificates should be left with the board. The deed then declared that the profits arising from the business of each corporation should be paid over to the board, and the aggregate, or such amount as might be designated for dividends, proportionately distributed by the board to the holders of the certificates issued by it for capital stock. It is quite plain .from this, as well as other provisions contained in the deed, that it was intended as a part of the plan that the entire shares of stock in each of the corporations becoming a party to it should be surrendered to this board and be afterwards held by the board, and that, in place of the shares transferred in that manner, the combination or Sugar Refineries Company, through the board, should issue equivalent certificates of its own which would pass over to the owners of the shares in the several corporations, and that the profits of the business carried on by the combination should be paid and distributed among the persons holding these certificates. The complaint then proceeds to allege that, shortly after the execution of the deed, the entire capital stock belonging to each of the corporations was assigned and transferred to the board of the Sugar Refineries Company, and that certificates were issued in the manner provided by the agreement, and delivered in return therefor to each of the corporations, and that certain of such certificates were distributed among the original stockholders in the corporations in accordance with the terras of the deed or agreement. It is further alleged as to this particular corporation that, at or about the time of the execution of the agreement, the entire capital stock of the North River Sugar Refining Company was purchased by or on account of Henry O. Havemeyer and other individuals, as the trustees of the Sugar Refineries Company, and that the same had been delivered to them, and that new certificates had been issued by the Sugar Refineries Company and'delivered by them. But what was the object of that delivery the plaintiff alleges he had not been informed.

•These allegations disclose the fact to be that, after the deed or agreement was entered into, its requirements were so far complied with as they provided for the delivery of the stock or shares of the North River Sugar Refining Company to the board of trustees of the Sugar Refineries Company, and that this board had issued, for the-benefit of the persons entitled to receive them under the agreement, the certificates which were to be exchanged for such shares. It does not appear by the complaint that either one of these certificates at any time became the property of the North River Sugar Refining Company; neither does it appear that any share of its own stock-was surrendered by it to the board of trustees to be replaced by the certificate or certificates to be issued by the Refineries Company.But the plain inference sustained by the complaint is that the shares' of the North River Sugar Refining Company were outstanding in the hands of persons who had previously acquired the title to them, and that these shares had all been purchased by Mr Iiavemeyer and the trustees of the Sugar Refineries Company, and that it was in place of these shares that the board of the Refineries Company issued their certificates. And they, from the tenor of the deed or agreement, may reasonably be presumed to have been passed over to the holders of the shares in the corporation in place of which the certificates were issued. These holders of the certificates consequently became the persons entitled to the earnings and profits of the Refineries Company. The North River Sugar Refining Company is not shown to be entitled, as against the holders of the. certificates, to participate in these profits, or either directly or indirectly to own any part of the assets of the Refineries Company. And the result appears to follow that the title to these assets or profits never in any form vested in this receiver, and he, consequently,has no right to recover the one or the other in this action. And that the persons who are entitled to the earnings and the assets of the Sugar Refineries Company are the holders of the certificates issued by its own board, and that they, and not the corporations becoming parties to the agreement or deed, are the persons entitled to insist upon a dissolution of the combination and the distribution of its assets, if that may legally be accomplished.

This receiver has, by his own statements, received all the property of the North River Sugar Refining Company. There is nothing further for him to obtain. But what has accrued from the combination and the transaction of the business is, by the terms of the deed, as well as of the certificates, distributable only among then-holders, and he is not one of those persons.

While the North River Sugar Refining Company continued to be a party to this combination, it does not appear that anything was earned by it, or paid over for the use of its property to the hoard of the Sugar Refineries Company; neither does it appear that any other advantage has been secured from it by that board beyond the circumstance of its having become a party to the combination. - In addition to that, what has taken place has been for the benefit of the holders of the certificates, and not of. this company, or of the plaintiff as its receiver. His complaint presents no proprietary right whatever which can be asserted or maintained in this action,* for the reason already stated, that upon its face he has presented no title to the earnings, dividends or assets of the Sugar Refineries Company.

It has also been alleged in the complaint that the combination was entered into for the unlawful purpose of controlling the manufacture and sale of sugar, syrup and molasses throughout the United States and increasing or advancing the prices thereon, and that this was an unlawful and illegal object. And so it was held by this General Term when the case of the People was decided by it. If the plaintiff could maintain the action, it could only be by enforcing the agreement or deed which was made against the board of the Sugar Refineries Company and the other parties to the .action. It is not for a rescission of the instrument and the recovery ef any money or property of the North River Sugar Refining-Company that the action has been brought, and the case, therefore, is not within the principle of Spring Company v. Knowlton (103 U. S., 49). But it is for the recovery of the profits and earnings of the combination in the execution of this unlawful agreement, and to recover those profits or earnings the terms of the agreement must be maintained and enforced. And when that is the case the law has become settled that a party to such a combination cannot maintain an action dependent upon the agreement. (Keene v. Kent, 4 N. Y. St. Rep., 431; Woodworth v. Bennett, 43 N. Y., 213.) This latter authority seems to be specially applicable to this appeal, for the action there was by one of the parties to an illegal partnership for the recovery of its effects, so far as they were designed to be secured to him by the unlawful agreement. And it was held by the court that the action could not be maintained. A very large number of authorities have been collected and cited in the brief of the counsel for the appellant illustrating the cases in which the parties to an unlawful agreement were not deprived of redress by reason of its illegality, but they all differ so essentially from this case as not to require any special examination. Some of them are peculiar in their consideration of the legal principle applicable to illegal contracts, but no one of them has gone so far as to maintain the right of a party to recover the fruits of the illegal transaction when an appeal to and dependence upon the terms of the agreement is required for that purpose. On the contrary, the courts have uniformly held that an action for redress under those circumstances cannot be maintained. And this lias been finally sanctioned by Leonard v. Poole (114 N. Y., 371).

Upon each of the grounds which have been considered, this action ■does not appear to be capable of being sustained. The plaintiff has ■presented no title or interest to or in the assets or earnings of the Sugar Refineries Company which will entitle him to recover any part •or portion thereof. And if he had disclosed an interest, which, under the terms of the agreement, might entitle him to maintain ■this demand against the defendants, his dependence upon the enforcement of the illegal contract would deprive him of success. The demurrer, therefore, which was interposed by the Oxnard Brothers Company to the complaint has been properly sustained, for it does not, as the’demurrer has presented the objection to it, state facts (Sufficient to constitute a cause of action.

The judgment should be affirmed, with costs, but. with leave to the plaintiff to amend his complaint within twenty days, upon payment of the costs of the appeal and of the demurrer.

Yan Brunt, P. J.:

I cannot concur in the conclusion arrived at by Mr. Justice Daniels, that even if the combination which resulted in the formation of the Sugar Refineries Company had been lawful, that the receiver of one of the combinors would have no right to an accounting for profits, earned by the company, because all such profits, belonged to the holders of the certificates issued by the trustees of the combination. Because, as'the receiver represents both the stockholders and creditors of the corporation of which he has been appointed receiver, and as the certificates issued by the combination simply represent the stock held in trust by the combination, and as-it is because of the deposits of this stock that certificates were issued to the depositors of the stock by the combination, the receiver of the corporation representing this stock seems to have the right to-enforce any obligations enuring to the advantage of the stock. The corporation having died, its shares of stock, as such, have been extinguished and the receiver has succeeded to all the rights of the stockholders to gather in property which they, as stockholders, have the right to claim. The certificates issued by the combination represent nothing but this stock; stand in lieu of it, and when all the rights arising from the holding of the stock are transferred by operation of law, it would seem that no rights could be enforced by the holder of a certificate issued to represent the stock, but which no longer did so.

I concur in the view that the action cannot be maintained because of the illegal character of the contract by which the combination was formed. This action is brought for the enforcement of the provisions of that agreement, and, as a court will never lend itself to the enforcement of an illegal contract, this action must fail.

Brady, J., concurred.

Judgment affirmed, with costs, but with leave to the plaintiff to-amend his complaint within twenty days upon payment of the costs-of the appeal and of the demurrer.


text:
    ELIJAH MYERS and I. HARBY MOSES v. BENJAMIN F. TRESCOTT.

      Contract — sale of personal property —acceptance of offer, as made.

    One Trescott, by letter, offered to sell to tbe firm of E. Myers & Co. a certain kind' of dried apples in quantities and at prices named in said letter. E. Myers' & Co. ,. by letter, accepted the proposition contained in Trescott’s letter, but added, in their letter of reply, “ We do this, of course, on the presumption that the goods' are of ‘ Prime ’ quality and run 200 pounds net or more per bbl. Please send us sample at once & we will then give you shipping directions.”
    In an action by E. Myers & Co. upon this alleged contract:

      Held., that there was no sale, E. Myers & Co. not having accepted Trescott’s offer as made, but making the matter depend on- the new elements of weight per barrel, condition and sample.
    Exceptions ordered to be heard in the first instance at the General Term, after a verdict for $182.54, rendered in favor of the plaintiffs by direction of the court upon a trial at the New York Circuit on. February 20, 1890. ■

      T. Henry Dewey, for the plaintiffs.

      James G. Foley, for the defendant.
   Daniels, J.:

A verdict in the action wxas directed by the court in favor of the-plaintiffs for the sum of $182.54 as damages for the breach of a contract for the sale of what were called “ chops.” The article alleged to be sold was dried apples, packed and ■ understood in the trade as “chops.” On the 22d of January, 1888, the defendant wrote to the plaintiffs:

“Pavilion, N. Y., Jam,. 22, 1888.
“ E. Meyer & Go., New York:
Gents.— If you can use my entire lot of chops at 2f c. I will let you have them. I have between 65,000 and 66,000 pounds, 2§,. F. O. B., New York, lighterage free, or one car load at 2§, N. Y.
“ If you want them let me know promptly. They are packed heavy in bbls., having used a Sampson jack ’ to pack them. Of uniform quality in every respect.
“Yours, etc.,
“ B. F. TRESCOTT.”

And they replied to this letter on the twenty-fourth of the same month ás follows :

“New York, January 24, 1888.
“ Mr. 13. F. Trescott, Pavilion, N. Y.: .
“Dear Sir.— Your favor of 22d just to hand, and we have concluded to accept your offer of all your chops, between 65,000 and 66,000 pounds, @ 2fc. delivered, lighterage free, New York.
“We do this, of course, on the presumption that the goods are of i Prime ’ quality, and run 200 pounds net or more per bbl.
“ Please send us sample at once & we will then give you shipping directions. “Yours, truly,
“E. MYERS & CO.”

And the controlling question in the case is, whether this was such an acceptance of the plaintiffs’ offer as resulted in the making of a contract. The offer was direct and explicit, and so was the first paragraph of the defendant’s reply, and if the correspondence had ended there, a legal contract between the parties would have been made. But it did not, for the plaintiffs then proceeded to add a statement by way of qualifications of their acceptance. And they were, that the goods were of prime quality and ran 200 pounds net or more to the barrel, and requested a sample to be sent at once, when the plaintiffs would give the defendant shipping directions. This was in the nature of conditions added, rendering the preceding explicit acceptance dependent upon the facts that the apples were of prime quality and ran 200 pounds or more to the barrel, and that the quality should be further assured by a sample at once sent to the plaintiffs. These qualifications left the transaction open in' such a manner that, if the plaintiffs did not find the apples either to be of prime quality ■or to run 200 pounds net or more to the barrel, they would be at liberty to refuse to receive them. And it made the acceptance to depend upon facts not contained in the defendant’s proposals of sale.

To create a binding contract by way of correspondence the law requires the offer to be accepted by the party to whom it may be made, as it shall be contained in the offer itself. If that is not clone, then the minds of the parties do not'meet upon the terms contained in the offer, and no contract of a binding nature is brought into existence. Upon this subject it was said in Eliason v. Henshaw (4 Wheaton, 225) : “ That an offer of a bargain by one person to another, imposes-no obligation upon the former until it is accepted by the latter according to the terms in which the offer was made. Any qualification of, or departure from, those terms, invalidates the offer, unless the same be agreed 'to by the person who made it. Until the terms of the agreement have received the assent of both parties, the negotiation is open and imposes no obligation upon either.” (Id., 228.) And this principle ,was followed in Carr v Duval (14 Peters., 77, 83) and in Mactiers’ Administrators v. Frith (6 Wend., 103); Mayer v. McCreery (9 N. Y. St. Rep., 114; affirmed 119 N. Y., 434); Potts v. Whitehead (23 N. J. Eq., 512); Lyman v. Robinson (14 Allen, 242, 254); Corcoran v. White (117 Ill., 118); Sievewright v. Archibald (17 Q. B., 103), and Carter v. Bingham (32 Upper Canada, Q. B., 615).

' The plaintiffs wrote again to the defendant on the 30th of January, 1888, giving directions for the shipment of the apples. But these directions he declined to comply with, stating to them in a letter of the first of February that their reply of the twenty-fourth of January had not been received until the twenty-eighth, when he found a telegram from other parties awaiting him, offering a higher price for the apples, which he immediately accepted. A further letter was written by the plaintiffs to the defendant on the ninth of February, but .neither this letter nor the oral evidence given in the case made any change in the lea.st degree beneficial to the plaintiffs; for the contract, to be binding upon the defendant, was required by the statute of frauds to be in writing. And as long as the proposal made by him was not unqualifiedly accepted by the plaintiffs no such contract was created; and the defects in the correspondence could not be removed or corrected by any conversation to which the defendant was a party, or letters afterwards written to him with whose terms he declined to comply.

The plaintiffs accordingly were not entitled to recover under the evidence as it was produced in the action, and the verdict should be set aside and a new trial ordered, with costs to the defendant to-abide the event.

Yah Brunt, P. J., and Brady, J., concurred.

Yerdict set aside and a new trial ordered, with costs to the defendant to abide event.


author: Daniels, J. :

text:
    THE PEOPLE, Respondent, v. CHARLES WEBSTER, Appellant.

      Crimes — an expert not entitled to give an opinion as to the value of non-expert testi. mony— the court should not express an opinion on the value of medical testimony — the jury must pass on the criminality of the act— Code of Criminal Procedure, sec. 527.
    Upon the trial of an indictment for murder, in which the defense was insanity, witnesses, not experts, characterized the acts of the prisoner, within their observation, as irrational. Medical witnesses were then examined, one of whom was asked, and allowed to give his opinion, as to the value of the opinion in such a matter of a witness, not an expert, who had been inquired of in respect thereto.

      Held, error.
    That the question of the value of such testimony was for the jury.
    Upon the trial the court, among other things, stated to the jury, “it is my experience and observation that you can get doctors to swear on both sides of any question.”

      Held, error.
    The court further charged the jury that there was no pretense that the defendant, if sane, had any legal excuse or justification for the act of killing; that, if insane, their verdict should be not guilty, but, if sane, then the defendant was guilty of a criminal homicide, and it was for the jury to determine the degree of guilt.

      Held, error; that whether the defendant was sane or insane, the question as to the criminality of his act was for the jury alone to determine.
    Under section 527 of the Code of Criminal Procedure it is the duty of the court,, upon appeal to the General Term, to order a new trial in a criminal case when justice requires it, although no exception has been taken below to the evidence ■or the charge which is deemed improper.

      Appeal by the defendant from a judgment and verdict of conviction of manslaughter in the first degree, had in the Court of ■General Sessions of the Peace, in and for the city and county of New York, on the 31st day of October, 1890 ; and also from an order of the court denying the defendant’s motion for a new trial.

      William F. Howe, for the appellant.

      Henry B. B. Sta/pler, assistant district attorney, for the respondent.
   Daniels, J. :

The defendant was charged by the indictment with the crime of murder in the first degree for killing Robert McNeill. The evidence tended to establish the fact that the deceased had been ■criminally intimate with the defendant’s wife, and after information of that fact had reached the defendant, and when he was in a saloon near his own residence, he was informed that the deceased, with a friend, had been inquiring for him. The defendant then left the saloon and crossed to his own residence, passing these two persons as he went in. He there obtained a revolver and returned to the street, when he made an exclamation referring to that intimacy and at once discharged the revolver in the direction of the deceased. The first discharge was without effect, but the second inflicted a mortal wound, thereby producing the death of McNeill. The ■occurrences were such as to indicate the commission of the offense charged in the indictment.

The defense made was that of insanity, and evidence was given of the preceding life, habits, health and peculiarities of the defendant, from which, with the circumstances attending the killing and their own observations, medical witnesses testified that, in their judgment, he was insane, and was so when the homicide took place. Other witnesses, not permitted by the law to give a general opinion, characterized his acts and conversations, within their knowledge, to have been irrational. The attention of one of the medical witnesses, who was sworn and examined on behalf of the defendant, was directed to that character of evidence, and questions were put to him by the counsel for the people which elicited these answers: Q. "What is your opinion, as an expert,*of the value of an opinion in medical matters of non-experts ? A. I think that sometimes it is exceedingly valuable and at other times utterly valueless. Q. Explain in what cases you think it exceedingly valuable ?' A. When the person who gives the testimony has a mind so constituted that can appreciate, that they are careful observers; if a person who is a careful observer states what he sees, his testimony is of value, a good many persons might observe and their opinion would be of no value. Q. Do they not almost always exaggerate % (Objected to. Objection overruled. Exception.) A. Not necessarily; no,sir.. Q. Is it not the result of your observation that they almost always-exaggerate ? (Objected to. Objection overruled. Exception.) A. I think people are very much given to exaggerating either their own. symptoms or the symptoms of their friends, as a general rule.

The inquiries were clearly improper, and should not have been allowed to be answered. It was for the jury to judge of the witnesses making the answers referred to, and of the effect which should be given to the limited opinions expressed by them. Their evidence, as the law permitted it to be taken by those witnesses, was before the jury for them to consider, with all the qualifications arising from their appearance, their intelligence, bias, habits of thought and the correspondence of their conclusions with what they had observed or heard the defendant say. And its force was not to be diminished by the opinions which other witnesses might be inclined or disposed to express concerning them. (People v. Lake, 2 Kern., 358 ; Reynolds v. Robinson, 64 N. Y., 589.)

The objection taken to the reception of the evidence was general, and in ordinary cases would be rejected as insufficient. But this rule is now inapplicable to criminal trials, when the evidence itself is so manifestly improper as to need no particularity by way of objection to point it out. That was the nature of the final answer obtained from this witness on this subject, for it must have tended to subject the evidence of the other witnesses to discredit in the minds of the jury.

The observations of the learned judge presiding at the trial concerning testimony obtained from medical or expert witnesses could have been no less prejudicial with the jury. It was a statement of the convictions or conclusions, created by listening to the testimony of this class of persons in other cases, forming no part of this trial. And as objectionable as evidence would have been to prove what had transpired in the cases referred to for the purpose of sustaining-the correctness of the expressions which were made to the jury. These were that each side has called experts, and they have given their opinions upon an assumed state of facts, so that it leaves you untrammeled to determine what the facts are. “ Now, in this case, a hypothetical question was put to two doctors, and if I remember the evidence, it fairly and in the main stated the history of this case, and both of them have sworn that, in their judgment, at the time the defendant committed the act he was insane. Non-experts, as I have said, have also stated the same -opinions. The People have also called an expert, which shows how doctors disagree. I have tried á great many homicide cases and other cases in which doctors have been called as witnesses, and it is the most remarkable circumstance that you can always obtain an equal number, as a rule, to swear on both sides of any question. A great many people consider, for this reason, that their testimony is unreliable. It is not for me to say that, but for you to determine how reliable or unreliable it is It is my experience and observation that you can get doctors to swear on both sides of any question.” These observations practically added the testimony derived from the experience of the judge to that of the witnesses, which could not be without effect in the minds of the jurors.

It was also observed, in the course of the charge, that the defendant admits that at the time and place alleged in the indictment, and by the means therein stated, he killed the deceased therein named. “ There is no claim or pretense on the part of the defendant that if he was sane at the time of the killing there is any legal excuse or justification for his act. Therefore, if from the evidence in this case you find, as a matter of fact, that the defendant was, at the time he killed the deceased, insane to the degree which the law defines as rendering a. pei’son irresponsible and unaccountable for his acts, your verdict will be not guilty by reason of his insanity at the time. If, on the contrary, you find from the evidence, as a matter of fact, that he was sane at the time he killed the deceased, then he is guilty of a criminal homicide, and it will be for you to determine the degree of his guilt.”

The final conclusion was that if the defendant was not insane, then he was guilty of a criminal homicide, and the only question was tbe degree of his guilt. This direction was a usurpation of the province 'of the jury. It was for them alone to decide whether his act was criminal, even if he were not at the time insane. The law provides for placing the facts before them, upon, which their judgment is to be formed, and then leaves it to them to conclude whether the act charged was criminal or not. This they were not in this case left at liberty to dofor the judge decided it to be criminal, if the defendant was not proven to have been insane, and thereby withdrew so much of the case from the deliberations of the jury. This was not-proper, and may have been injurious to the defendant. (McKenna v. People, 81 N. Y., 360.)

These observations of the judge were not made the subject of exception by the counsel for the defendant. But that does not deprive him of the right to have them considered and acted upon by an appellate court, for, by section 527 of the Code of Criminal Procedure, it has been provided that a new trial may be ordered on the decision of an appeal, when justice requires it, “ whether any exception shall have been taken or not in the court below.” The defendant was entitled to a trial according to the well-defined rules of law, and that it is reasonably plain he has not had. To .secure him that trial another investigation of his case is necessary; and upon that he is now to be tried in all respects as though he had not been once tried already. (Code Crim. Pro., § 544.) The verdict, in other words, will be completely set aside, not only so far as it may be a shield to him, but also so far as it has made him the subject of punishment.

The judgment should be reversed and a new trial ordered.

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

.Judgment reversed and new trial ordered.