text:
    James W. Paige et al., Plaintiffs and Respondents, v. L. O. Wilson et al., Defendants and Appellants.
    1. An action by a creditor, to enjoin his debtor from making an assignment or disposing of his assets to the preference of other creditors, in violation of an agreement by which he had obtained credit from the plaintiff, and to have his assets appropriated pro rata between the plaintiff and other creditors, does not preclude the same creditor from bringing a subsequent action to recover judgment against the debtor upon the same indebtedness. The cause of action in the first case is upon an equitable demand triable by the court, and the costs are in the discretion of the court, and before the Code a court of law would have had no jurisdiction of the case. In the second case the cause of action arises upon express contract, is a legal demand, is triable by a jury and not by the court, and plaintiff’s right to costs is absolute, and a court of equity strictly would have had no jurisdiction of the case. These causes of action are not the same, within the rule that a former action pending for the same cause abates the present action.
    2. The Code does not establish any new rule of determining the identity of causes of action in this respect.
    (Before Bosworth, Ch. J., and Moncrief and White, J. J.)
    Heard, May 17;
    decided, June 1, 1861.
    Appeal from, a judgment recovered by the plaintiffs after a trial before Mr. Justice Hoeemas", and a Jury on the 8th day of May, 1860.
    The defendants, having become very largely indebted to the plaintiffs for goods sold, the debt falling due in the fall of 1857, procured from the plaintiffs, as the plaintiffs alleged, an extension of the time of payment, upon representations that their embarrassments were only temporary, and that by receiving an extension of credit, they would be able to make payment in full, or if not, that the plaintiffs should receive as large a proportion of their demands as any other of^the defendants’ creditors.'
    In 1858 the plaintiffs commenced an action in the Supreme Court of this State, in which their complaint, after alleging these facts, proceeded to state that the defendants had not paid any part of the plaintiffs’ demand, although they had paid some other creditors in full, and that they now threatened to make an assignment with preferences, postponing the plaintiffs’ demand to others.
    The relief demanded in the action in the Supreme Court, was that the defendants’ property be appropriated to the payment of their debts, in such a manner that no creditors who were such at the time of the extension, should receive a greater share than the plaintiffs, and for an injunction and a receiver.
    By a supplemental complaint, subsequently filed in the same action, the plaintiffs alleged that the defendants had meanwhile made an assignment of their property with preferences, and stated further facts as impeaching it, and demandedfor further relief that the assignment be set aside.
    While that action in the Supreme Court was pending, and before its trial, the plaintiffs brought the present action in this Court to recover judgment for the indebtedness which was the foundation of that action.
    The summons in this action was for a money demand, and the complaint in this action alleged that the defendants, L. O. Wilson & Co., by false representations, induced the plaintiffs, Paige & Co., to extend the credit, or time of payment, on their demand for goods sold, which fell due in the fall of 1857 ; and it demanded judgment for the amount due.
    The answer alleged, for a third defense, “that the plaintiffs, before the commencement of this action, commenced an action against the defendants in the Supreme Court, for the same cause of action and debt, which are the subjects of this suit and of said complaint, and said former action is now pending and undetermined.”
    The defendants’ Counsel gave in evidence the pleadings in the action pending in the Supreme Court, and thereupon moved to dismiss the complaint in this action, on the ground that the whole debt, part of which was claimed in the action aforesaid in the Supreme Court, was due when that action was commenced, and should have been included in that suit, and that this action, subsequently commenced for another part of the debt, could not by reason of the premises be maintained.
    The Court overruled such motion and refused to dismiss the complaint, to which decision and ruling the defendants’ Counsel duly excepted.
    The Jury rendered a verdict in favor of the plaintiffs for the amount claimed.
    From the judgment entered upon this verdict the defendants appealed.

      Wm. C. Traphagen and James T. Brady for the appellants.

      The whole debt from Wilson & Co. to Paige & Co., was due when the first action was brought, and not having been claimed in that action cannot be recovered in this, the defense of such former suit being specifically set up in an ■ answer. (Bendernagle v. Cocks, 19 Wend., 207 ; and see 16 N. Y. R., 549 ; 16 Johns., 136.)

      David Dudley Field, for the respondents.
    The only question raised on the trial related to the pendency of another action between the same parties. The defense stated in the answer was, that another action was pending between the same parties for the same cause. The defense stated on the trial was not that the former action was for the same cause, but ought to have been. It is a sufficient reply, that the defense in the answer was abandoned at the trial, and that the defense taken at the trial was inadmissible, because not in the answer. But there was a better reply still. The former action was "for a different cause. Its purpose was to enforce an alleged agreement of the defendants not to make preferences between their creditors, and to procure a distribution of their property equally among their creditors. (Ward v. Dewey, 12 How. Pr., 193.)
   By the Court—Bosworth, Ch. J.

The defendants in the third head of their answer aver, “that the plaintiffs, before the commencement of this action, commenced an action against the defendants in the Supreme Court, for the same cause of action and debt which are the subjects of this suit and of said complaint, and said former action is now pending and undetermined.” The practical question is, “Did the defendants establish, at the trial, the truth of this averment?”

The cause of action in the suit before us, arises upon ■express contract, is a legal demand, is triable by a Jury and not by the Court, (Code, § 253,) and the plaintiffs’ right to costs is absolute, on judgment being entered on the verdict. (Id., 304, sub. 4.) The old Court of Chancery would have no jurisdiction of it.

The action in the Supreme Court is upon an equitable demand, is triable by the Court, (Code, § 254,) and the ■ costs of it can be awarded according to the discretion of the Court. A Court of Law, prior to the Code, would have no jurisdiction of it.

The action in this Court is brought to recover a judgment for money, eo nomine, et in numero. The action in the Supreme Court, is brought to compel an application of the property which the defendants had in October, 1857, to the payment, pro rateo, of the debts then owing by them and previously contracted, whether then due or to become payable afterwards. That action was brought on behalf of the plaintiffs, and all other creditors who might come in and contribute to the expenses of it.

It is indeed true, that the Code abolishes all forms of pleading theretofore existing, (§ 140,) and that when an answer is put in, the Court may grant to the plaintiff, “ any relief consistent with the case made by the complaint, and embraced within the issue.” (Id., § 275.)

Marquat v. Marquat, (2 Kern., 336,) favors the idea, that the plaintiffs may have judgment in the action in the Supreme Court, for the amount of their debt, although they fail to prove the facts alleged and relied upon to establish a right to the relief specially prayed for in the complaint in that suit. If this be so, then, if on a trial of that action, the Court should refuse to give such a judgment, and if the plaintiffs instead of appealing should commence a suit like the present, the question would arise whether such judgment would be a bar, as presenting a case of res adjudicatco.

But it may be that the plaintiffs’ present position is not so unfavorable as it would be in the case supposed. The former suit has not been tried. At all events there is no evidence of it in the case before us. And if the system existing when the Code was enacted was now in force, and the suit in the Supreme Court had been in the Court of Chancery, I think it quite clear, that a dismissal of such a bill by the Court of Chancery would not be a bar to the present action.

The causes of action in the two suits are not the same, within any rule of testing and determining their identity, established prior to the Code. No new rule on that subject has been enacted by the Code.

Although the Supreme Court may, perhaps, be competent to grant relief in the action in that Court, which the old Court of Chancery could not give on a bill containing the same allegations of fact as are found in the complaint in the Supreme Court, yet it does not necessarily follow that the causes of action stated in the complaints in these two suits must be held to be the same, when they clearly would not have been prior to the Code.

■ Where the cause and object of both actions is the same, a judgment in the prior bars the subsequent suit. But, where the cause or object of the actions is different, the prior judgment is no bar to the subsequent suit; although any point common to both and actually determined in the first, would conclude the parties in respect to it in the second suit. (2 Cow., Hill., and Edwards’ Notes, vol. 2, p. 18, note 1.)

As a dismissal of a bill in Chancery containing the same allegations as the complaint in the Supreme Court, would not be a bar to the second, the pendency of such an action as the former would not abate a suit, like the present, subsequently brought.

We, therefore, conclude, that the two suits are not for the same cause of action, within the meaning of the rule that makes the suit first brought a sufficient matter for abating the second, and that the judgment should be affirmed.


source: Caselaw Access Project

author: By the Court—Woodruff, J.

license: Public Domain

text:
    The Mayor, Aldermen and Commonalty of the City of New York, Plaintiffs, v. The Parker Vein Steamship Company et al., Defendants.
    1. In an action on a bond given to secure rent reserved by a covenant in a loase, a demand against the plaintiff for a wrongful conversion in removing from the demised premises, fixtures placed there by the tenant, one of the defendants, but of which the lease did not contemplate the erection nor provide for the privilege of removal, is not available as a counterclaim.
    2. Such a demand cannot be made a demand arising on contract, within the meaning of subdivision 2 of section 150 of the Code of Procedure, by the fiction of waiving the tort and proceeding upon an implied promise to pay for the goods taken; but even if this could be done, there can be no recovery upon it as upon contract where it is alleged in the answer as a tort.
    3. Nor is such a demand a cause of action arising out of the contract or transaction set forth as the foundation of plaintiffs' claim, or connected with the subject of the action within the meaning of subdivision 1 of the same section.
    (Before Hoffman and Woodruff, J. J.)
    Heard, January 22;
    decided, June 15, 1861.
    Exceptions taken on the trial of this case were ordered to be heard in the first instance at General Term.
    The action was brought against the Parker Vein Steamship Company, and Hippolite Mali and Otis P. Jewett, on a bond for rent. The Steamship Company had leased from the plaintiffs certain piers in the city of Hew York, and the defendants, Mali and Jewett, had united with the Company as sureties in the bond to the plaintiffs to secure the payment of the rent.
    The Steamship Company did not defend the action; Mali and Jewett answered setting up a counterclaim for a conversion by the plaintiff, of fixtures belonging to the Company upon the demised premises.
    The cause was tried before Chief Justice Bosworth, and a Jury,. October 16, 1860; when the defendants admitted that- the rent claimed by the plaintiffs, amounted, with interest, to $3,349.98, and the plaintiffs then rested then case upon the pleadings. The defendants’ counsel then offered to prove the counterclaim set up in the answer, to which the Counsel for plaintiffs objected. The court sustained the objection, and the defendants’ Counsel excepted. The Court directed the Jury to find a verdict for the plaintiffs, for the sum above mentioned, and that entry of judgment be suspended, and the defendants’ exceptions be heard in the first instance at General Term.

      H. H. Anderson, for plaintiffs.

      J. M. Van Cott, for defendants.
   By the Court—Woodruff, J.

We are of opinion that the facts alleged in the defendants’ answer are not available to the defendants as a counterclaim within the meaning of that term,'as employed and defined in the Code; and therefore, whether they constitute a cause of action in favor of the Parker Vein Steamship Company or not, they cannot be used to defeat the plaintiffs’ recovery herein.

The plaintiffs’ action is brought upon a penal bond signed and sealed by all of the defendants, conditioned for the payment of the rent which, in a certain lease, was covenanted by the Parker Vein Steamship Company to be paid for the privilege of collecting the wharfage accruing from the use of certain piers by vessels occupying the same.

The action was, therefore, an action on contract.

The alleged counterclaim is simply and purely (if the facts alleged are a cause of action) a claim to recover damages for a tort. The allegation is, that the Parker Vein Steamship Company erected certain fixtures, &c., on one of the piers, of which fixtures the Company was owner, and was entitled to remove the same, and would have done so, but the plaintiffs forbade such removal, and prevented the same, and took possession of such fixtures, &e., &e., converted them to then own use, and the plaintiffs thereby became liable to account for the same and pay to the defendants the value thereof. How, if upon these facts the plaintiffs are liable for the value of the fixtures, that liability did not arise on contract. There was no provision in the so-called lease, nor in the bond, by which it was stipulated that the Company might erect anything on the pier, or that if they did so they might remove the same. The taking possession and conversion thereof to the plaintiffs’ use, therefore, no more created a cause of action arising on contract, than the seizure and conversion by the plaintiffs of any personal property of the Company found in any other place would have done. It was simply and only a tort. . Although it has been sometimes intimated that the injured party might waive the tort, and bring an action on an implied promise to pay for the goods taken, we think that a counterclaim, “ arising on contract,” cannot be made upon any such fiction.

Formerly it was held, that when goods so taken were sold, and the wrong-doer received the money, the owner had a right to treat that money as his own, and sue for it as so much money had and received; and this was the whole extent and the true limit of the rule that the owner might waive the tort and bring assumpsit.

If in modern times countenance has been given to the idea that the owner of goods, tortiously detained from him by "a wrong-doer, may sue for their value in an action which would have been termed assumpsit, we are of opinion that the Legislature, when a counterclaim was defined, in the second subdivision of section 150, as a cause of action arising on contract, did not mean a cause of action which was founded upon a tort, and where, in truth, no contract existed.

If we are correct in this, then the facts alleged did not constitute a counterclaim, available to the defendants in this action ; and, on the other hand, if this idea of waiving the tort and claiming the value of the property “in assumpsit,” or upon an implied contract to pay therefor, be entertained, then the case of Walter v. Bennett, (16 N. Y. R., 250,) is a direct authority established by the Court of Appeals, that when the cause of action is alleged as a tort, there can be no recovery as upon contract, although the facts alleged would have sustained such an action.- The rule thus settled is equally applicable to a counterclaim, which is in substance a complaint upon an affirmative cause of action on the part of the defendant.

This view is, therefore, equally fatal to the defendants’ claim in the present case.

The other clause of the section, defining a counterclaim, describes it as “ a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiffs’ claim, or connected with-the subject of the action.”

Now, the contract set forth in the plaintiffs’ complaint is the defendants’ express covenant to pay the rent accrued upon the plaintiffs’ lease to the Company. The subject of the action is either the rent itself or the claim of the plaintiffs thereto.

Neither the defendants’ title to the fixtures nor the plaintiffs’ conversion thereof, arose out of the lease or the covenant for the payment of the rent. Neither the lease nor the covenant contemplated nor provided for the erection of the fixtures, nor for any privilege of removing the same if erected. The Company did not bring them there in pursuance of the lease or covenant, nor did the plaintiffs convert them in violation of either.

It is true that but for the lease the defendants would have had no interest to promote by bringing them there, and no motive, therefore, to erect them. So, also, the seizure or the conversion thereof by the plaintiffs was not the result of the lease or covenant; and yet if they had not been upon that pier, it may be said that the plaintiffs would not have taken them. But the cause of ac ion (if any) was in all respects precisely the same as it would be had the plaintiffs taken possession of the like fixtures belonging to that Company at any other place whatever.

The fixtures were in no manner connected with the rent due to the plaintiffs, nor with the plaintiffs’ claim to such rent. Neither the erection of the fixtures nor the use nor enjoyment thereof could affect either. They may or may not have been useful to enable the Company to collect wharfage, though it is difficult for us to perceive how they would contribute to its increase. But if never brought there, the rent would have been the same and the plaintiffs’ title thereto the same.

The views expressed in Drake v. Cockroft, (4 E. D. Smith, 34 ;) Gleason v. Moen, (2 Duer, 639 ;) Bogardus v. Parker, (7 How. Pr. R., 305 ;) McKenzie v. Farrell, (4 Bosw., 202 ;) and Moffatt v. Van Doren, (Id., 609,) sustain these suggestions, and so in our judgment does the decision in The Xenia Bank v. Lee, (2 Bosw., 694.) In that case it is said that “ the right of the plaintiff to claim and the right of the defendant to counterclaim upon any given or supposed facts in controversy must, we think, be reciprocal.”

We think it clear that if the Parker Vein Steamship Company had brought their action, declaring in the terms of their answer for the wrongful taking and conversion of the fixtures in question, the plaintiffs could not, by way of counterclaim, have set up that that Company was indebted to them for rent under the grant of wharfage mentioned in the complaint.

We are not to be regarded as holding that, under the facts alleged in the answer, the plaintiffs are liable for the value of the fixtures in question, but we rest our decision upon the ground that the facts alleged do not constitute a cause of action that is the subject of a counterclaim which can be allowed in this action.

The plaintiffs should have judgment upon the verdict.


author: By the Court—Bosworth, Ch. J.

text:
    Stephen Meyer, by Sigmund Lang, his Guardian, Plaintiff and Appellant, v. The Second Avenue Railroad Company, Defendant and Respondent.
    1. A railroad company are liable for injuries caused by the act of the driver of their car, in wrongfully, ejecting a passenger from the platform, even though the act of the driver be forcible, malicious and willful, and not merely negligent. It is to be deemed a part of the employment of a driver of a city railroad car, to put a person off the platform of the car who may be there without right or contrary to the regulations of the company, and also that it is by the company confided to sneh driver to determine whether a person on the platform is there without right or contrary to such regulations ; and a forcible and malicious ejectment of a passenger from the car by the driver, is an act in the course of his employment as a servant of the company.
    2. Held further, that where the evidence is conflicting, the question whether the plaintiff was on the car as a, passenger, and was pushed off, or was there without right and dropped off, is one for the Jury and not for the Court to determine.
    (Before Bosworth, Gh. J., and Moncrief and White, J. J.)
    Submitted, May I6th;
    decided, June 15th, 1861.
    Appeal from a judgment recovered after a trial before Chief Justice Bosworth, and a Jury, in June, 1860.
    TMs was an action brought by the plaintiff, a lad under fourteen .years of age suing by Ms guardian, to recover from the defendant damages for injuries to his person. It appeared from the testimony, that he was riding upon the front platform of a city railroad car, belonging to- the defendant, and that he fell or was pushed by the driver from the platform, and the car ran over Ms feet.
    The testimony of the plaintiff, which was corroborated by witnesses called in his behalf, went to show that he got into the car as a passenger, having money ready to pay Ms fare, and intending to pay it, and went through the car to the front platform, and while standing there, the car being in motion, the driver denounced him and pushed him off.
    The evidence on the part of the defendant, which was in direct conflict to the plaintiff’s evidence, went to show that the boys were running after the • car; that this boy jumped on, and when the conductor came to collect fares .attempted to jump off and fell in so doing.
    After the proof was all given, defendant’s Counsel moved
    1. To dismiss the plaintiff’s complaint, upon the ground that upon the plaintiff’s proof, the injury was caused by a forcible and malicious act of the driver, outside of the course of his employment, and that consequently defendant was not liable; or
    2. To direct a verdict for the defendant, on the ground that a verdict for the plaintiff would be against the evidence.
    Plaintiff’s Counsel opposed the motion and insisted, among other grounds, that the plaintiff, upon the evidence given, should be regarded as a passenger, and the acts of the conductor and the driver, as done in the course of their employment as such, and when in charge of the car; and that defendant was liable whether the injury was caused by the forcible or negligent acts of them, or either of them; and that, if there was a concurrence of forcible and negligent acts, the plaintiff was entitled to recover. And that at all events, the evidence being conflicting, it should be left to the Jury to find, upon the facts of the case, after proper instructions as to the law, if upon any theory of the case as disclosed by the evidence, the plaintiff could recover.
    The Judge declined to submit any question of fact to the Jury, and granted the motion of the defendant’s Counsel and dismissed the plaintiff’s complaint, upon the grounds that, according to the plaintiff’s own evidence, the driver forcibly and wantonly, and without any provocation, pushed the plaintiff off the car; and that such misconduct was not an act done in the course of his employment, and that defendant was, therefore, not liable; that according to the defendant’s evidence, the plaintiff had no cause of action. To this ruling and decision the plaintiff’s Counsel excepted.

      William H. Browne and Henry Bennett, for appellant.

      I. Plaintiff was entitled to have the case submitted to the Jury, upon all the evidence given, with proper instructions as to the law. Negligence is always a question of fact, to be determined by the Jury as a matter of fact, and not by the Court as a matter of law. In this case the evidence was conflicting, and the Court erred in refusing to submit the question of fact to the Jury for their decision upon the whole evidence presented, all of which had been given before the motion to dismiss the complaint was made.
    Defendant’s motion should have been denied, and the case fairly submitted to the Jury upon all the evidence. (2 Hilton R., 389 ; 19 How. Pr. R., 199 ; 14 N. Y. R., 310, 314 ; 19 Id., 127 ; 20 Id., 65 ; 2 Bosw., 374, 379 ; 5 Duer, 21, 27 ; 3 E. D. Smith, 327, 338 ; 4 Comst., 547 ; 17 N. Y. R., 362, 370 ; 5 Duer, 193, 199.)
    II. The evidence of negligence was ample, and sufficient as given both by plaintiff and defendant.
    Upon either version of the evidence the case was a proper one for the Jury; ¡and the Court was not authorized to withdraw the facts from their consideration. (18 N. Y. R., 408, 410 ; 14 N. Y. R., 314 ; 2 Bosw., 374, 379 ; 5 Duer, 21, 27 ; 19 How., 199, 204 ; 4 Comst., 547.)
    HI. Defendant is a corporation, and cannot act in person; what it does by its servants or agents it does itself; the acts of the driver and conductor in the management of the car, in taking on and putting off passengers, receiving fare, and in all other matters when acting for defendant and in the course of their employment, are defendant’s own acts. (Edw. on Bailments, 315-320 ; Broome’s Legal Max., 387, 411 ; 17 N. Y. R., 362, 370 ; 29 Barb., 132, 137.)
    IV. Defendant is as much liable for the acts of its servants, while acting in the course of their employment, in forcibly ejecting a passenger from a car, by which he is injured, (if done in an improper manner or without a justifiable cause,) as if the injury had arisen solely from negligence; and heavy damages in such cases have often been recovered.

      Defendant’s servants assumed (without inquiring as to the fact) that plaintiff did not intend to jjay his fare, and therefore they refused to treat him as a passenger, and by their improper and negligent conduct occasioned the injury; in this they were acting in the course of their employment; their suspicion that he did not intend to pay his fare was unfounded, and affords no justification or excuse; it serves to explain their conduct, and shows them acting in the course of their employment. (15 N. Y. R., 444, 450.)
    V. But the defendant’s own witnesses, the driver and the conductor, both testify, positively and unqualifiedly, that no force or violence was used towards plaintiff; after proving positively that no violence was used, and after having denied it under oath in the answer, defendant had no right to a nonsuit on the ground that the injury was occasioned by the forcible and malicious act of the driver. On such a motion defendant must assume that his answer was false, and his witnesses guilty of perjury; defendant is estopped from disputing the truth of his own pleadings and proof. (1 Stark. Ev., 387, § 9.)
    "VT. The proof given by defendant was as much the property of plaintiff as defendant, and could not be withdrawn ; nor could it be disregarded either by the Court or Jury.
    The evidence of the conductor showed the most culpable negligence. (3 Hill, 144 ; 1 Cow., 109.)
    VII. The complaint was sufficient to allow a recovery upon the proof given upon either ground; and beside, if it was necessary, an amendment should have been allowed; but as no objection was made at the trial upon the ground ■of variance, none can now be made. And for the same .reason no objection can now be made that the plaintiff was in fault. (14 N. Y. R., 143,148 ; 2 Seld., 147, 179.)
    VIII. It is the duty of Court and Jury to reconcile conflicting’ proof as far as possible. All plaintiff’s evidence .as to his being actually a passenger, able to pay, and Intending,to pay his-fare, and that he did not get off voluntarily is to be taken as true: and all defendant’s proof as to plaintiff hanging on to the car for a block and a half after he was pushed or jostled or fell off must be taken as true, no opposing proof being given on the other side; whether the driver did or did not push off plaintiff, and the question of negligence were questions of fact for the Jiuy. The conductor’s evidence shows gross and inexcusable negligence. There is no dispute as to the injury plaintiff received, and this is evidence of negligence, especially with the proof showing how it occurred. (19 How. Pr. R., 199, 204 ; 4 Comst., 547, 548.)
    IX. Defendant, by its servants, was guilty of negligence in not stopping the car so as to prevent the injury; and this was a question of fact for the Jury. (2 Bosw., 374, 376, 379, 380 ; 5 Duer, 21, 27 ; 17 N. Y. R., 362, 370.)
    X. By refusing to submit the question to the Jury, whether-the injury was occasioned by the forcible and malicious act of the driver, and not in the course of his employment, or resulted from the improper and negligent conduct of defendant’s servants while acting for defendant, and in the course of their employment, the Court, instead of the Jury, decided upon the facts of the case, and, we insist, against the weight of evidence. (17 N. Y. R., 362, 370 ; 19 How. Pr. R., 199, 204 ; 15 N. Y. R., 444, 450 ; 6 Carr. & Payne, 501 ; 9 Id., 607 ; Dunlap’s Paley’s Agency, 294-304 ; 5 Duer, 193, 199 ; 1 R. S., p. 696, §§ 6, 7 ; same stat., 2 R. S., 5th ed., 966 ; 3 Id., p. 589, § 3.)

      John H. Platt, John Slosson & Waldo Hutchins, for the Respondents.
    I. Upon the plaintiff’s own proof the injury was caused by a forcible and purely malicious and wanton act of the driver—a mere willful trespass—not committed in the course of his employment, nor in the exercise of any duty. It was an act not authorized or approved by the defendants, and was an outrage personal to the driver. It was not, as in the case of Weed v. Panama Railroad Company, an act done within the scope of his employment, and a ■wrongful mode of exercising it, but was wholly outside of it. (See that case, 5 Duer, 193 ; affirmed, 17 N. Y. R., 362.)
    “The principal is not liable for the torts or negligences of his agents in any matters beyond the scope of his agency, unless he has expressly authorized them to be done, or has subsequently adopted them for his use or benefit.” (Story on Ag., §§ 456-462, also § 452 ; see also Phila. and Reading R. R. Co. v. Derby, 14 How. U. S. R., 468 ; see also the following cases: Vanderbilt v. Richmond Co. Turnpike, 2 Comst., 479 ; Brown v. Copley, 7 Man. & Gr., 558 ; Heath v. Wilson, 9 Carr. & Payne, 607 ; Croft v. Alison, 4 Barn. & Ald., 590 ; Wright v. Wilcox, 19 Wend., 343.)
    The servants are not the Company, they are its agents and servants, and whatever tortious acts they commit by its direction it is responsible for, and no other. For injuries resulting from the carelessness of the servant in the performance of his master’s business the latter is liable, but for the willful acts of the servant, the master is not responsible, because such willful acts are a departure from the master’s business. Even in discharging a lawful duty, as in ejecting a passenger who refuses to show his ticket when required, if the servants of the Company use more force than necessary, they, and not the Company, are responsible for the consequences. (Hibbard v. N. Y. and Erie R. R. Co., 15 N. Y. R., 467.)
    If, therefore, when the plaintiff rested he had been non-suited, the case would have been perfectly clear.
    II. The defendant’s evidence makes it abundantly clear that the accident was wholly owing to the plaintiff’s fault.
    If the case had gone to the Jury, a verdict for the plaintiff could not have been sustained.
   By the Court—Bosworth, Ch. J.

I am satisfied that the nonsuit cannot be sustained on the first ground on which it was granted. That ground was, that assuming the case to be as the plaintiff’s evidence, prima facie, established it, “ the driver forcibly and wantonly, and without any provocation, pushed the plaintiff off the car; and that such misconduct was not an act done in the course of his employment, and that defendant was not therefore liable.”

There is no pretense that it was not a part of the driver’s appointed and regular duty, to put a person off the platform of the car, who might be there without right, or contrary to the regulations of the Companynor that it was not confided to the driver to determine whether a person on the platform was there without right or contrary to such regulations.

The theory of the defendant’s Counsel was, that the act of the driver was not done in the course of his employment, because it was done forcibly and maliciously. It was not disputed, that if the driver had put the plaintiff off without cause and had injured the plaintiff in ejecting him, through mere negligence, the defendant would be liable.

For the purpose of testing the ground first assigned for the nonsuit, it must be assumed that the driver was authorized, for cause and in a proper manner, to put persons off the platform of the car. In such a case it is not denied, that if he does it so negligently that the person ejected is injured, the Company is liable. The precise question which the first ground of nonsuit presents, is this: is the Company liable if the driver acts maliciously in ejecting the passenger ?

The case of Weed v. The Panama Railroad Company, (17 N. Y. R., 362,) decides this proposition against the defendant. In that case the conductor detained the train at an exposed place all night, and did so maliciously. The plaintiff was made sick by the exposure and endured great suffering. It was held that whether the act of the conductor was willful or negligent merely, made no difference as to the liability of the defendant.

In the case before us, the malicious ejection of the plaintiff from the car by the driver, was as truly a breach of the ' defendant’s duty to carry the plaintiff to Fifth street in safety and with all reasonable dispatch, as the malicious detention of the train by the conductor, in the case cited, was a breach of his principal’s similar duty.

The cases of McManus v. Crickett, (1 East., 106,) and the Richmond Turnpike Company v. Vanderbilt, (1 Hill, 480,) are unlike this in a very essential particular. In the former the defendant’s servant had no authority to drive against the plaintiff’s chaise for any cause or under any circumstances. In the latter, the captain of the boat, belonging to the Turnpike Company, had no authority to run it against Vanderbilt’s boat under any pretense.

In those eases the acts of the servants had no connection with matters or persons, as to which or whom the principal had confided any authority to the servants. The servants, in what they did, were not acting, in any sense, within the scope of their employment. In the case before us, according to the plaintiff’s testimony, he entered the cars as a passenger, intending to pay his fare and having money with which to pay it. And the driver, under circumstances that might occur, was authorized to eject him in a proper manner, and was also authorized to determine whether occasion to eject him existed. Had he ejected him so negligently as to injure him, the defendant would be liable; and the fact that the driver ejected him maliciously, instead of negligently merely, makes no difference as to the' defendant’s liability. The rule in the English courts is to the same effect. (Green v. The London General Omnibus Co., 7 Com. Bench, [J. Scott,] N. S., 290 ; and see Althorf v. Wolfe, 22 N. Y. R., 361.)

I am of the opinion, therefore, that as the evidence stood when the nonsuit was ordered, the cause should have been submitted to the Jury with instructions, that if they believed the plaintiff’s witnesses, the plaintiff was entitled to recover; while, on the other hand,- if they believed the defendant’s witnesses, their verdict should be in favor of the defendant.

The driver testified that he did not push the plaintiff off the car, and not only that, but that he did not see him on thecar. The testimony of the conductor, of Vogel and of Wm. Smith, is equally pointed. On the other hand, the testimony of the plaintiff and Louis Klager is direct, that the driver pushed him off.

Whether he was on the car as a passenger and was pushed off and injured, or whether he was hanging on the car, without right, and dropped off on seeing the conductor approaching, were questions for the Jury and not for the Court to determine. The judgment should be reversed and a new trial granted, with costs to abide the event.

Ordered accordingly.


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    James Collins, Plaintiff and Respondent, v. Cornelius Vanderbilt, Defendant and Appellant.
    1. Where there is an agreement between two parties to submit any matter of difference between them to the decision of a third nerson, it is essential to a final and conclusive decision that both parties should have notice of the time and place when such third person is to investigate the matter with a view to such decision, unless there be something in the terms of the agreement declaring or clearly importing that such notice need not be given.
    2. The same rule applies whether the third person is in the employment of one of the parties to the work, or is a stranger.
    3. Where, under such a contract, the third person designated in it, and another, at the request of the defendant, the employer, went to look at the work, the employer saying that if they said it was all right he would pay, and on looking at the work they found it was not done, and stated to the contractor what he must do to complete it, and subsequently the arbiter named in the contract visited the work alone, and being satisfied it was done, gave a certificate to that effect: Held that this was insufficient, as the subsequent examination was without notice to the defendant.
    (Before Bosworth, Oh. J., and Moncrief and White, J. J.)
    Heard, May 10;
    decided, June 29, 1861.
    Appeal from a judgment entered on- the report of Livingston K. Miller, Esq., Referee, in favor of the plaintiff.

      This was an action brought to recover a balance alleged to be due, as part of the last installment, on a contract for filling in land under water, on the shore of Staten Island to a level of four feet above ordinary high water-mark.
    The contract, under which the work was done, contained a provision, “that it should be submitted to one, Minthorne Tompkins, to decide when said several portions of said work were respectively done, so as to entitle said contractor to receive, and to oblige said defendant to pay the respective installments; and that the decision of said Tompkins, when made on the said matter, should be binding on both parties.”
    It was proved, on the trial, and the Referee found accordingly, that on or about the 15th of June, 1859, Tompkins, at the request of defendant, met one Amos on the premises, to inspect the work and determine whether the same was completed; that Amos, on behalf of defendant, pointed out what he considered to be the deficiencies in said filling, which plaintiff was then and there directed by Tompkins to supply. That thereafter plaintiff did additional work and filling in, and on the 25th day of June, 1859, Tompkins again examined said premises, alone, and thereupon gave a certificate, addressed to the defendant, and in the following terms:
    “I have examined the filling in done by Mr. Collins and am satisfied that he has fully performed the contract, that is, he has filled up within the bulkhead to the height of four feet above ordinary high water; I went down last Saturday with Amos, and having then measured it with him, we informed Mr. Collins as to what was necessary to be done; I have this morning inspected it, and find that he has performed satisfactorily the work which we required him to do. I believe there is still remaining due to him the sum of eight hundred and thirty-three 33-100 dollars, to be paid by you.”
    The Referee’s report also stated that evidence was offered and received under objection, to show that the dock was not sufficiently filled in, and the nature and extent of the deficiencies; also, to show that the defendant had not notice from Tompkins of his final examination of said work. The defendant insisted on the trial that the evidence was admissible, and that the want of notice rendered the award void. He found, as a conclusion of fact, that the defendant had notice of Tompkins’ first inspection in company with Amos, but no notice of any subsequent inspection; and also, that on the 6th day of July, 1859, there was a deficiency, in the filling, of 3,040 feet from the point required; and that the last installment of said contract price had never been paid, viz., $833.33.
    From the foregoing facts, he found, as a conclusion of law, that the matters submitted to said Tompkins, were passed upon by him, after examination and inspection, and that his finding and decision thereon was conclusive and binding upon the defendant, and that the plaintiff was, therefore, entitled to judgment against the defendant, for the amount therein specified, with interest and costs.

      Lot C. Clark, for the appellants.
    I. The provision in the contract for the submission to Mr. Tompkins, and his decision upon the question of fulfillment, so as to entitle the plaintiff to his pay, is a submission to arbitration. (McMahon v. N. Y. & Erie R. R. Co., 20 N. Y. R., 464 ; The Mayor, &c., v. Butler, 1 Barb., 325 ; Van Cortlandt v. Underhill, 17 Johns., 405 ; Peters v. Newkirk, 6 Cowen, 103 ; Caldwell on Arbitrations, 119.)
    II. It follows, from embodying this clause in the agreement, that without a submission and decision thereon, the plaintiff cannot recover. He must recover on the award or not at all.
    IH. These points conceded, the only questions are, first, have the parties legally submitted it to Mr. Tompkins to decide; and second, has Mr. Tompkins made a legal decision or award.

      First. It is manifest from the whole evidence, that the parties have never had a legal or formal hearing before Mr. Tompkins. There has been no time or place fixed by the arbitrator for a heáring. Ho notice of the time, place or hearing was given the parties. Ho judicial investigation—no formal hearing—no taking of testimony has been had in the case. This requirement is not satisfied by an informal letter or certificate, obtained by one party without notice to the other, upon a casual looking at the work, without taking any testimony or making any formal survey or examination. The contract does not say that the “ certificate ” of Tompkins shall be binding, but his “ decision ” upon a “ submission.” The arbitrator was not sworn.
    These requirements belonged to common law as well as statutory submissions. But this submission, being in writing, sections 3-7 of 3 Rev. Stat., 5th ed., p. 356, apply. (Cope v. Gilbert, 4 Den., 348 ; Peters v. Newkirk, 6 Cow., 106 ; Bloomer v. Sherman, 5 Paige, 575.)

      Second. Has there been a legal award ? The paper purporting to be a decision has none of the ordinary formalities of an award. The arbitrator, clearly was ignorant of the necessity of notice, &c. He supposed it was only necessary that he should be satisfied, and express that satisfaction. But if his letter was intended to be a formal award, yet if he omitted to give notice of the time and place of hearing, and to afford an opportunity to be heard, it is a nullity. (Elmendorf v. Harris, 23 Wend., 628 ; Peters v. Newkirk, 6 Cow., 106 ; Jordan v. Hyatt, 3 Barb., 283.)
    IV. The plaintiff endeavors to get rid of the force of these points, by urging that Mr. Amos met Mr. Tompkins to look at the dock on the Saturday previous to the date of the certificate, and that he represented the defendant.
    How, the only evidence as to the authority of Mr. Amos • there is Mr. Tompkins’ testimony that he “ understood Mr. Vanderbilt wished Mr. Amos to look at the work with him.” This was when Tompkins and Collins both said the work was done. It turned out on inspection that it was not done. Therefore Amos had performed all that was required of Mm at that time, by pronouncing the work incomplete. Collins then worked five days longer. At the end of that time TompMns went alone, and gave neither Vanderbilt nor Amos any notice. They clearly had a right to be heard on the question, whether Collins had then completed the dock.
    But there is no evidence in this case that Mr. Vanderbilt ever authorized Amos to decide with TompMns for him. The fair construction of Ms request that Amos might look at it, is that he wished to have him report afterwards. (McKinney v. Page, 32 Maine, 513, [2 Red. ;] Hook v. Philbrick, 3 Foster, [N. H.,] 288 ; Lincoln v. Taunton Manuf. Co., 8 Cush., 415.)
    V. It being manifest that there has been no legal sub- . mission or award, the plaintiff must be nonsmted. He should have offered to submit the question as to the completion of the contract to the arbitrator, if he wished to conclude the defendant. If the defendant complied, the award would have concluded him. If he refused, the plaintiff might have proceeded ex parte, after notice, or might sue on the agreement to submit. TMs is now Ms only remedy. (McMahon v. N. Y. and Erie R. R. Co., 20 N. Y. R., 464.) An arbitrator cannot proceed a single step without notice to the parties.

      Tompkins Westervelt, for the respondent, (after reviewing the evidence in support of the Referee’s conclusions,) urged.
    I. If there were not a sufficient passing upon the matters submitted to TompMns, such insufficiency must arise from the omission of some necessary requisites; and it was urged on the trial that this was a case of common law arbitration, and that some of the requirements had not been complied with so as to make Tompkins’ certificate a valid award. The answer to this is twofold.
    1. This is not a case of arbitration, and the rules applicable thereto do not apply.
    2. If it be subject to the rules of proceedings on common law arbitrations, the evidence shows that such rules were sufficiently complied with.
    II. This is not a case of common law arbitration.
    Submission to arbitration is defined as “That act by which parties refer any matter in dispute between them to the decision of a third person.” (See Kyd on Awards, p. 6.)
    There was no “matter in dispute” in this case. The only matter on which any question could arise was the place of “ordinary high water-mark,” which was necessarily a matter of opinion; and the parties to the contract, to prevent dispute from a clashing of opinions, agreed to substitute the opinion of Tompkins for their own, and be bound by it. Tompkins has expressed that opinion, and they are so bound, Ho notice to, or hearing of, the parties was needed, although both were in fact given.
    The existence and legality of such provisions in contracts is recognized by the Courts as something different and distinct from arbitrations. (See United States v. Robertson, 9 Peters U. S. R., 319. McMahon v. N. Y. and E. R. R. Co., 20 N. Y. R., 463.)
    III. Ho notice to the defendant of the examination by Tompkins was necessary in this case. (M. McMahon v. N. Y. and E. R. R. Co., 466.)
    The Court says that the question whether in cases like that then before the Court, “ the contractor or party doing the work has a right to be present when the measurements are made,” is a new one, and “open to the application of such principles as are best calculated to secure the rights of the parties.”
    The reasoning of that case does not make notice to the defendant here necessary.
    IV. If this case, however, be considered as so similar to a common law arbitration; nevertheless sufficient notice was given to the defendant, of the examination made June 15th, 1859, and Amos then attended as the defendant’s representative before Tompkins on the premises, and made certain suggestions on behalf of the defendant which were complied with.
    1. All the matters on which a hearing could have been necessary, were then passed upon in presence of Amos, defendant’s agent, and Avith his sanction the ordinary high water-mark, and the level to which the filling should be raised was fixed — and nothing remained to be done; and it was agreed to by Amos, the defendant’s agent, that Tompkins should come alone and pass upon the work.
    2. If any notice of the subsequent examination of the work by Tompkins would otherAvise have been necessary, it Avas expressly waived by Amos, the defendant’s agent, by the agreement that Tompkins should make his subsequent examination alone.
    3. At any rate, it was for Tompkins to decide what was reasonable notice. (See Elmendorf v. Harris, 23 Wendell, 628.)
    V. Even if this be regarded as a common law arbitration, failure by the arbitrator to be sworn does not affect his jurisdiction, and is waived if not. insisted on at the time. (Howard v. Sexton, 4 Comst., 158 ; Bergh v. Pfeiffer, Lalor’s Supp., 110.)
    No witnesses having been called by either party, of course none could be sworn.
    VI. The finding and decision of Tompkins is conclusive and binding upon defendant.
    VII. All the evidence introduced to contradict that finding was inadmissible, and is not to be considered in this case.
    Further, it does not contradict Tompkins’ finding, for it is evidence of the condition of the filling at another time, July 6th and not July 25th, and it does not appear that the testimony of Boot, (the surveyor,) is based on the same high water-line agreed upon between Tompkins and Amos.
   By the Court—Bosworth, Ch. J.

The Beferee has found “ that on the 6th of July, 1859, there was a deficiency in the filling of 3,040 feet from the point required.” This is equivalent to - finding that the plaintiff has not performed the contract on his part. If the judgment is upheld, the defendant will be required to pay for labor that has not been performed; and will be so required on the ground that the certificate of Mr. Tompkins, of June 25th, 1859, is an estoppel against the defendant, precluding any inquiry whether the plaintiff has performed the contract on his part. It is found, as a fact, that the defendant had no notice prior to the last inspection of the work by Tompkins, that it was to be made. He had, therefore, no opportunity to be present and see that the measurement was accurate, and free from mistakes as to the actual point of high water-mark, and as to the height to which the dock had been filled.

The first and important question is, would an ex parte inspection of the work by Tompkins, and a decision by him, in good faith, that the work had all been done, conclude the defendant ?

In McMahon v. The N. Y. and E. R. R. Co., (20 N. Y. R., 465,) the contract was, inter alia, that the measurements and calculations of the quantities and amounts of the several kinds of work performed under it, should be determined by the Company’s engineer, and that he should “ decide every question which can or may arise between the parties, relative to the execution ” of the contract, “ and his decision shall be final and binding upon both parties.” It was held, that an ex parte estimate and measurement by the Engineer, without notice to the contractor, would not bind him. That case is treated as one in which no testimony was to be given before the arbitrator or Referee, but it was nevertheless held essential to a final and conclusive estimate, that notice of making it should be given to the contractor, so that he could be present and enabled to guard against mistakes.

The parties to the contract before us, covenant “ that it shall he submitted to Minthorne Tompkins, to decide when the several portions of the work of filling aforesaid are respectively done, so as to enable said party of the second part to receive, and to oblige said party of the first part to pay the respective installments of the price aforesaid, and that the decision of said Minthorne Tompkins, when made on the matters aforesaid, should be binding on both parties.”

The literal import of this provision is, that if the parties do not agree upon the question whether either of the three installments in which payment was to be made, was due when payment was claimed, the parties shall submit the question to Mr. Tompkins. There is nothing in the instrument implying an understanding, that he was to decide the question without notice to either party. In the case above cited the contract work was to be done under the direction and constant supervision of the engineer, and he was authorized to reject and condemn all work or materials, which in his opinion did not fully conform to the •spirit of the contracts. Notice of his estimates and measurements, so as to be present when they were made, was of no consequence to the contractor, except to guard against mistakes and bad'faith.

Notice is as important, in the present case as in that, to guard against mistakes. It is equally important to guard against inattention or bad faith of the arbitrator, unless it is a legal presumption that a person in the position of the engineer would practice bad faith towards the contractor, when a person not employed by either party would not be guilty of it.

I see no just grounds for withholding from this case the application of the rule enforced in the case cited. The fact that the arbitrator or umpire in the present case, presumptively might know nothing of the work as it progressed, and the further fact that the agreement is in terms, “ that it shall be submitted to ” the person named, to decide, &c., present forcible considerations for holding* that the agreement indicates an understanding of the parties, that he was not to decide ex parte, but that they were at least to have notice and an opportunity to be present, and call his attention to whatever was necessary to secure an accurate measurement.

¡No such notice was given or opportunity had.

The only evidence that Amos was present at the time Mr. Tompkins first examined the work, by request of the defendant, is the testimony of the defendant. “ I recollect when Tompkins said the work was done, that I said, you and Amos can go and look at it, and if you and he say it is done, it is all right and we will pay it; T don’t know whether that was before or after he gave the certificate;”— and the testimony of Mr. Tompkins,—“I understood from defendant, before I went to look at the work with Amos, that he would like Amos to look at it; I met Amos there by appointment.”

Mr. Tompkins, although he testifies that Amos agreed to look at the work again on Tuesday night, yet he also says “ there was no understanding that I was to meet him there again.” Mr. Amos testifies that there was no agreement between him and Tompkins, that the latter should examine the work at any subsequent day.

It is quite clear that the two agreed when they together looked at the work that it was not completed, and that the defendant had no notice of any intended examination of it subsequently; and that the defendant, when shown the certificate of the 25th of June, 1859, immediately looked at the work and declared himself dissatisfied; had a survey made on the 6th of July, which the Referee has found to be accurate, and immediately notified Mr. Tompkins of the result of such survey, and refused to pay on the ground that the contract was not performed.

The certificate signed on the 25th of June, 1859, should not conclude the defendant, as it was given upon an ex parte examination by Mr. Tompkins, of which the defendant had no previous notice. The defendant (according to the evidence before us,) has not refused to attend upon a subsequent examination and measurement, nor manifested any disposition to deal inequitably with the plaintiff.

I think it should be held, as a rule applicable to all agreements'between two parties, to submit any matter of difference between them to the decision of a third person; that it is essential to a final and conclusive decision that both parties should have notice of the time and place when such third person is to investigate the matter with a view to such decision, unless there be something in the terms of the agreement declaring or clearly importing that such notice need not be given.

I also think there is nothing in the contract, in question, of that import, but on the contrary, that the words, “it shall be submitted,” imply that the parties to the agreement were to go before the arbitrator named, and submit the question to him for his decision.

The complaint alleges full performance of the work, “ in accordance with the terms and requirements of said contract or agreement.” This the answer denies. The answer also alleges a deficiency, in the filling in, of over 3,000 cubic yards, and that the contractor has abandoned and left the work in such unfinished state. By the terms of the contract, the filling was to be completed by the 1st of May, 1859. No agreement extending the time allowed the contractor for completing his work, is alleged or shown. The strongest evidence of waiver of the time fixed by the contract is that given by the defendant to the effect that he said to Tompkins: “ You and Amos go and look at it, and if you and he say it is done, it is all right and we will pay it.”

That contingency has not occurred, whether this was said before or after the certificate was received by the defendant. If said before that, then the fact is that they said it was not all right,—that the work was not finished. If said subsequently, then the fact is that the two have not looked at it together since.

For these reasons I think the Referee erred, and that the judgment should be reversed, the report set aside and a new trial granted, with costs to abide the event.

Mobcbbef, J., concurred in this opinion.


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    Martin W. Brown et al., Plaintiffs, v. George W. Platt et al., Defendants.
    1. Creditors, on whose behalf the attorney of their debtor has, without authority from them, received a mortgage made by the debtor in their favor may ratify the act by a subsequent assent, and enforce the mortgage.
    2. Where a debtor makes, at one time, several mortgages upon the same chattels to secure several creditors, the refusal of one of them, on being informed of the mortgage to him, to accept it, does not impair mortgages accepted by other creditor's.
    3. The objection, that a chattel mortgage executed in another state was void • for illegally reserving the right to retain possession and to sell the goods as part of the mortgagor’s stock in trade, cannot be raised on appeal from a judgment, if not taken at the trial.
    4. Nor can such a ground of objection be available where the mortgagor, before any creditor questioned the validity of the mortgage, delivered the chattels to the mortgagee, waiving his claim to the possession and to the period of credit, and authorizing an immediate sale.
    (Before Hoffman and Woodruff, J. J.)
    Heard, January 15, 1861;
    decided, June 22, 1861.
    The questions of law arising on the trial of this case were ordered to be heard in the first instance at General Term.
    This action was by Martin Brown and Caleb K. Colby against George W. Platt and Hathan 0. Platt. It was tried on the 12th of March, 1860, before Chief Justice Boswoeth and a Jury.
    The plaintiffs sued the defendants for converting certain chattels of the plaintiffs, valued at $1,934.31. The defendants’ answer denied the conversion, the ownership by the plaintiffs, and the alleged value; and set up the seizure of the goods on July 16, 1858, by the sheriff of Hew York, under an attachment at the suit of the defendants, against one Fernando 0. Gleason, whose property it alleged the goods then were.
    Upon the trial it appeared that Gleason, who had been in business as a dealer in jewelry in Iowa in 1857, being indebted to merchants in Hew York, caused seven chattel mortgages upon his stock in trade to be drawn up, in favor of those creditors respectively, and executed them and caused them to be recorded. After record they were returned to Cooley, his attorney, who had drawn them. These mortgages were of even date, and were numbered from one to seven. Each was upon the whole of his stock in trade. Humber one was in favor of the plaintiffs, and each of the others referred to that one, and was expressed to be made subject thereto.
    After making these mortgages, Gleason wrote to the defendants, to whom the mortgage number three was made, stating that he was pressed by unfriendly creditors, and was advised to give new notes to those he wished to secure, and a chattel mortgage; and that he had done so, and liad “ given mortgage on the whole stock to secure the same in this way. M. W. Brown & Co., No. 1, J. W. Vincent, No. 2, Platt & Brothers, No. 3,” &c. “ That covers my whole stock.”
    The defendants replied to this letter that the arrangement met with their approval, that they did not comprehend the numbering from one to seven, but they understood that all would fare alike; and asked-for information as to this point.
    Gleason, in his answer to this inquiry, wrote that the numbering was done by the attorney, who said it was necessary, but that all who were seemed were to stand equally in the payments.
    All the mortgages contained a clause authorizing the mortgagees to take possession of and sell the property in case of default of any one payment, or any attempt to “ sell, assign or remove ‘ the property ’ out of Gleason’s possession.”
    Gleason, the mortgagor, continued in possession of the stock and carrying on his business and selling the goods until June, 1858. About the first of July he sent the goods on to the plaintiffs. He, at the same time, sent to plaintiffs a letter stating that he had sent them and expressing his wish that all the creditors secured should be paid pro rata, without preference on their releasing him, ■but if that could not be done, he directed that the plaintiffs should sell the goods, and out of the proceeds pay themselves, and apply the residue towards payment of the other mortgages in the order in which the mortgages were numbered.
    The goods being in the plaintiffs’ possession, the defendants brought an action against Gleason to recover their debt and attached these goods as being his property.
    The Judge directed the Jury to find for the plaintiffs the cash value of the goods on the 16th of July, 1858, and ordered the questions of law arising on the trial to be heard in the first instance at the General Term.'

      Edgar S. Van Winkle, for defendants.
    I. At the time of the attachment the defendants had a right so to proceed, and their proceedings were regular.
    II. When attached the goods were Gleason’s.
    1. The mortgages were all void as against creditors.
    They were on a stock in trade, and reserved to the owner the liberty to sell on his own account.
    A mortgage on a stock in trade can only be good by way of assignment in trust, and then the clause permitting the owner to remain in possession and control of the same, in addition to the clause providing for a return of the surplus to the owner, renders it void.
    2. Whether the instrument is treated as a mortgage or an assignment, it was fraudulent as against creditors.
    As a mortgage it was void. (Edgell v. Hart, 13 Barb., 380 ; S. C. on appeal, 5 Seld., 213 ; Wood v. Lowry, 17 Wend., 492 ; Griswold v. Sheldon, 4 Comst., 581 ; Ford v. Williams, 3 Kern., 577 ; Gardner v. McEwen, 19 N. Y. R., 123.)
    As an assignment it was void. (Code of Iowa, § 977 ; 2 R. S., N. Y., 137 ; Bur. on Assignments, 400, 401 ; Goodrich v. Downs, 6 Hill, 438 ; Barney v. Griffin, 2 Comst., 365 ; Leitch v. Hollister, 4 Comst., 211 ; Doremus v. Lewis, 8 Barb. S. C. R., 124.)

      And it is immaterial whether the reserved trust or benefit was created by the assignor with fraudulent intent or was the result of mistake.
    III. Personal mortgages, contrary to the general principles of law, if authorized by the State wherein made, can have no extra territorial force, especially if sought to be enforced or sustained in a place by the laws or decisions of which such mortgage would be invalid. (Story’s Confl. of Laws, §§ 388, 271, 416 ; Davis v. Bronson, 6 Iowa, [Clarke] 412, 424.)
    It does not appear that the law of Iowa would sustain any personal mortgage which violates the general principles or policy of law.
    See Code of Iowa, 1851, §§ 1193-1195, 1217, regulating personal mortgages.
    The presumption is that the law-of Iowa is the same as ours. (Holmes v. Broughton, 10 Wend., 75 ; Bean v. Briggs & Felthauser, [Clarke,] 4 Iowa R., 464.)
    IY. When defendants attached, plaintiffs did not hold as mortgagees, but under a special trust created by Gleason’s letter of July 1, 1858, and their title was invalid, for it was a transfer or assignment in trust, of part of the debtor’s property, which was void.
    1. Because it made it a condition of any payment to any creditor that he should release the debtor. (Bur. on Assignments, p. 152.)
    2. Because it gave to the assignee, in case creditors would not release him, and would not petition for his discharge, a power to dispose of the goods as indicated by the debtor. (Barnum v. Hempstead, Paige, 568 ; Boardman v. Halliday, 10 Id., 223 ; Sheldon v. Dodge, 4 Den., 217 ; Hyslop v. Clarke, 14 Johns., 458.)
    Y. If the plaintiffs are considered as holding under their mortgage, they can only claim the amount of their debt, the surplus belonged to Gleason. The verdict should be reduced to the amount of their debt. (Code of Procedure, §§ 227, 231, 234 ; Leitch v. Hollister, 4 Comst., 211 ;
      Hendricks v. Robinson, 2 Johns. Ch. R., 284, and 17 Johns., 438 ; Hull v. Carnley, 1 Kern., 501, and 17 N. Y., 202.)

      Anthony R. Dyett, for the plaintiffs.
    I. The plaintiffs were not entitled to a nonsuit.
    1. There being no “ stipulations to' the contrary ” in the mortgages, the title and right of possession passed to the mortgagees immediately. (Code of Iowa, § 1210.)
    2. The acknowledgment and recording by Gleason was a delivery. (Rathbun v. Rathbun, 6 Barb., 98 ; Code of Iowa, §§ 1194,1195, 1217-1223.) The delivery to Cooley, on behalf of the creditors, was a good delivery, though unauthorized by them, if such delivery was not afterwards dissented from. The Code of Iowa (§§ 1193-1195) makes the acceptance and record equivalent to taking possession.
    3. The plaintiffs accepted their mortgage, and the delivery of it, and before the attachment was issued they had the actual possession, and, in addition to the title, constructive possession under the laws of Iowa. The mortgages were past due, and by their terms they had the right of possession and the absolute property. (Rich v. Milk, 20 Barb., 616 ; 4 Kern., 22.)
    The defendants had accepted a delivery of the mortgages, both by not objecting and by their correspondence with Gleason.
    4. But if they had not, it did not invalidate the plaintiffs’ mortgage or title.
    5. Ho question was raised on the trial as to the delivery and acceptance of the mortgages either by plaintiffs or defendants.
    6. Ho question of fraud arises to affect the plaintiffs’ title. The mortgages were, prima facie, valid by the Code of Iowa, and the defendants offered no evidence of fraud.
    Gleason testified that the mortgages were all made to secure bona fide debts, and that there was no intent to defraud. And this testimony is admissible, (Seymour v. Wilson, 14 N. Y. R., [4 Kern.,] 567,) and was not contradicted.

      7. These mortgages were all contemporaneous, upon the same property, and alike in their form; the intent being to make all share pro rata.

    The defendants, therefore, were so far privy to the plaintiffs’ mortgage as to be concluded from setting up fraud, unless they showed dehors the mortgages, some fraud of which they were not cognizant at the time of the execution of the mortgages. Ño such evidence was given.
    8. But there was nothing on the face of the mortgages, or in the evidence, to show fraud.
    9. The letter of Gleason, of July 1st, could not vary or change the legal rights of his creditors. It was, however, a good assignment in trust to pay the mortgages. The fact that it directed preferences did not per se render it void, but was merely a reason for equity to interfere.
    The plaintiffs had a right to hold the property under their mortgage and disclaim all title under the assignment.
    10. The mortgages were valid by the laws of Iowa, where they were made and recorded, and are valid everywhere.
   By the Court—Woodruff, J.

The goods, for the taking and conversion whereof this action is brought, were mortgaged to the plaintiffs by a mortgage duly executed, acknowledged and recorded in Iowa, where the property was situated at the time the mortgage was made. The mortgage to the plaintiffs was, by the terms of the other mortgages, severally, made a first mortgage, the others being in terms declared to be subject thereto. Although the correspondence between the mortgagor, (Gleason,) and the defendants would indicate that the mortgagor represented and, probably, believed the mortgages to stand upon an equal footing, the terms of the mortgages forbid * such a construction. This, however, does not seem very material to the decision of the present case, for, if the plaintiffs’ title as mortgagees was valid, the defendants had no right to take the goods from them.

The objection that the mortgages were not delivered, we think fails. They were delivered, not to the defendants personally, but to an attorney who undertook to receive such delivery for them. Although such attorney had no previous authority to act for the plaintiffs, still the act was for their benefit and they had a right to assent thereto, And the subsequent delivery of the mortgaged property, or so much, at least, thereof as is in question in this suit, removes any doubt or difficulty in respect to the question of delivery so far as the plaintiffs are concerned. If, as now insisted, the defendants did not accept the mortgage made to them, that would not impair the mortgage to the plaintiffs.

It is, however, insisted that the mortgage to the plaintiffs, (as well as the others,) was void because it contained an illegal reservation of the right, not only to remain in possession of the goods until default in the payments secured by the mortgage, but the right to sell the goods as part of the mortgagor’s stock in trade. If this be the true construction of the mortgage, then, according to the decisions in this State, the mortgage, if given here upon property in this State, was void as against creditors. (Edgell v. Hart, 9 N. Y. R., 216 ; Gardner v. McEwen, 19 N. Y. R., 126 ; Williston v. Jones, 6 Duer, 504 ; Marston v. Vultee, 12 Abb. Pr. R., 143.) The language of the mortgage is not altogether consistent with itself. After describing the goods on hand which are mortgaged, it adds, “ and also all the goods that may hereafter be added, from time to time, to said stock by the party of the first part to take the place of such goods as may be sold from said stock.” But a subsequent clause in the mortgage expressly provides that, “if the party of the first part * * attempt to sell, assign or remove said property out of his posses- - sion,” the mortgagee is “ authorized to take immediate possession of the above described goods and chattels, or any part thereof, and sell the same” to satisfy the mortgage debt.

The debtor, however, appears by his letter to the defendants to have contemplated the continuance of business, and expected to deal with the mortgaged property.

Without discussing the question whether this mortgage was void by our law, or whether it must be presumed, in the absence of proof on this point, that by the laws of Iowa it was also void, we think the defendants cannot rely upon any such objection on this appeal. No such claim was made on the trial—no such objection to the validity of the plaintiffs’ mortgage was suggested. The plaintiffs may have had it in their power to show the objection to be groundless.

But what we regard as rendering it clearly unavailable, is that before any creditor questioned the validity of the mortgage, the goods in question were delivered into the actual possession of the plaintiffs upon terms securing to them the custody and the right of disposition, freed from any feature of the kind alluded to, and authorizing them to appropriate, the proceeds first to the payment of their own debt.

Now whether the plaintiffs could or could not originally have enforced their mortgage, this delivery of the goods entitled the plaintiffs to receive and dispose thereof and appropriate the proceeds in satisfaction of their own debt, and if there was a surplus, to hold it for the benefit of the other mortgagees.

The mortgagor, by his letter advising the plaintiffs of the forwarding of the goods, and by his actual sending of them to the plaintiffs, not only waived the possession thereof, but in very terms waived the period of credit mentioned in the mortgage, and authorized the immediate sale of the property.

It is true that the letter states that Mr. Vincent (one of the creditors secured by mortgage) advised the distribution of the goods among all the creditors, and that he (Vincent) thought that all would accept such dividend and release the debtor; but the delivery was not charged with any such condition. He could not impose such a condition and did not attempt it. He of course was content and even desirous that this should he done, hut such an arrangement would require the assent of the plaintiffs themselves, as well as of the defendants and others; aud he therefore adds that if the suggestions of Mr. Vincent could not be made to work satisfactorily, then the plaintiffs would dispose of the goods; and this we think they had a right to do.

We do not perceive that this is in conflict with any of the principles which are involved in the authorities to which our attention is called.

The plaintiffs should have judgment upon the verdict.