author: Robertson, J.

text:
    George H. Franklin, plaintiff and appellant, vs. James H. Pinkney et al. administrators, &c. of Robert T. Haws, deceased, defendants and respondents.
    1. The object of the exception in section 399 of the Code of Procedure, declaring that a party to an action shall not be examined as a witness in his own behalf against parties who are representatives of a deceased person, in respect to any “ transactions or cmmnunications had persmially ” by him with the deceased, was to exclude a party from testifying to any occurrence wherein the other party, who has died since, was or must have been an actor. It was not designed to exclude the testimony of a party as to an occurrence at which the other deceased party needed not to have been present, or a fact which he needed not to have known.
    2. The ownership of money which had been .deposited by the plaintiff in the same bank in which the deceased kept his funds, and was entered to the credit of the latter, in his bank hook, with his consent, is not within the meaning of such provision a “transaction or communication” between the plaintiff apd, the decedent personally, which yrotLld exclude the testimony of the former, as to his ownership, in an action against the personal representatives of the latter for such sum.
    (Before Bobertson, Ch. J., and Monell, and Garvin, JJ.)
    Heard October 6, 1864;
    decided October 29, 1864.
    Robert T. Haws, now deceased, was during the years 1860 to 1862, comptroller of the city of Hew York. George H. Franklin, the plaintiff, being his intimate friend, and holding the office of collector of the city revenue, had an office in the same building with Haws. Franklin kept no bank account of his own, but was in the habit of depositing his surplus moneys with Haws, by placing them in the Tradesmen’s Bank, with Haws’ assent, to the credit of Haws. Haw's died suddenly, intestate, having in his hands a considerable sum of money belonging to Franklin. His administrators having declined payment of the claim, this suit was brought. Upon the trial, the plaintiff proved by other witnesses that Franklin often came to Haws’ room, got from Haws his bank book, took it to his own office, took money from his own safe or pocket book, and took or sent it the Tradesmen’s Bank, where it was deposited to the credit of Haws, and so entered in the bank book. That Franklin would then return the book to Haws, who would look at the entry and place the book again in his drawer. He also proved the subsequent entry by Haws of these amounts in his check book. The plaintiff then being called in his own behalf, is asked if, having the said bank book in his possession, as testified to by the other witnesses, he made any deposit of moneys in the Tradesmen’s Bank, credited to Haws in said book, and if so, whose money it was. The defendants’ counsel objected to the admission of this evidence under section 399 of the Code of Procedure. It was received, with leave to the defendants to move to strike out under the objection made. The plaintiff then testified that he did so deposit money, and that it was his own money, giving the particulars of such deposits. On motion of the defendants’ counsel, made in accordance with the permission above stated, this testimony was stricken out, as not being within the terms of section 399. To this decision of the referee the plaintiff excepted. The plaintiff being the only witness by whom the ownership of the money deposited could be proved, the complaint was dismissed and exception taken. • That part of section 399 of the Code, affecting the question presented for consideration at this time, is and was at the time of the trial, in 1864, as follows :
    “ A party to an action or special proceeding, including proceedings in surrogates’ courts and proceedings for the summary recovery of the possession of land, may be examined as a witness on his own behalf, or in behalf of any other party, in the same manner, and subject to the same rules of examination as any other witnesses ; provided, however, that the assignor of a thing in action shall not be examined in behalf of said party, nor shall a party to an action be examined in his own behalf in respect to any transaction or communication had personally by said assignor of said party respectively, with a deceased person against parties who are the executors, administrators, heirs-at-law, next of kin, or assignees of such deceased person, where they have acquired title to the cause of action immediately from such deceased person, or have been sued as such by the executors, administrators, heirs-at-law, next of kin, or assignees.
    From the judgment of dismissal the plaintiff appealed.

      Henry H. Anderson, for the appellant.
    I. A literal interpretation of section 399 of the Code imposes no limitation upon the testimony to be given by the plaintiff in this action, for it is not clear in what respects the defendants ever “ acquired title ” to “ the cause of action ” in this suit “ immediately from the deceased,” nor to what classes of action the limitation is to be applied.
    II. But if it be considered that this action is one in which the plaintiff’s testimony is subject to the limitations imposed by this section, the evidence of the plaintiff as to the matters upon which he was interrogated was properly offered and received, and should have been retained in the case. Section 399 excludes “ transactions and conversations had personally with the deceased,” and no other transactions or conversations. The plaintiff would not have been permitted to testify as to the conversations tiad with Haws—for conversations are excluded—nor would he have been permitted to testify as to the matters proved by Allen, viz : receiving a bank book from and returning the same to Haws, for those are transactions had personally with the deceased ; but the matters of which the witness was interrogated are those of which the deceased, at the time, had no personal knowledge, and to say that a man can have transactions personally with another, of which the other person has no personal knowledge, is an absurdity.

      W. C. Barrett, for the respondents.
    I. There are two questions in the case ; (1.) Was the testimony given by the plaintiff, evidence in respect to a “transaction” or' “ communication” had by him personally with the deceased? (2.) Does such testimony, if admissible, afford any evidence of the existence of a cause of action in favor of the plaintiff against Robert T. Haws ?
    II. As to the first question, we submit that the testimony of the plaintiff was properly rejected for the reasons specified in the opinion of the learned referee.
    III. If the testimony was not in respect to a transaction had personally with the deceased, then, even if it stands, the plaintiff cannot recover—there being no question of agency in the case.
    IY. The course of legislation on the subject has been marked by a determination to prevent a party recovering upon his own evidence in any case, where the deceased, if alive, might have controverted his statement, (a.) The act of 1860 contained this limitation upon the right of a party to be examined in his own behalf, “ except that a party shall not be examined against parties who are representatives of a deceased person, in respect to any transaction had personally between the deceased person and the witness.” (b.) This act is the only one • which has received judicial construction, and that merely upon the question as to who should be deemed “ representatives.” (McCray v. McCray, 12 Abb. 1. Schenck v. Warner, 37 Barb. 260. Lee v. Dill, 39 id. 519. Traphagen v. Traphagen, 40 id. 537.) (c.) In all of these cases it was assumed, as a matter beyond debate, that if the defendants were' held to be the representatives of a deceased person, the testimony of the plaintiff was inadmissible. In some of the cases it was held that executors and administrators only, were representatives of a deceased person within the meaning of the statute—excluding from the category heirs at lg,w, next of kin, devisees, &c. In others, the latter were included. To set this discussion at rest, the act of 1862 was passed, which reads as follows: “Provided, however, that .the assignor of a thing in action shall not be examined in behalf of said party, nor shall a party to an action be examined in his own behalf, in respect to any transaction or communication had personally by said assignor or said party respectively with a deceased person, against parties who are the executors, administrators, heirs at law, next of kin or assignees of such deceased person, where they have acquired title to the cause of action immediately from said deceased person, or have been sued as such executors, administrators,” &c. (Laws of 1862, p. 858, ch. 460, § 31.) It will thus be seen that the intention of the legislature was to set the question at rest and to render the limitation • complete and comprehensive. Note the change from the words “in respect to any transactions had personally,” in the act of 1860 to the words “ in respect to any transaction or communication had personally,” in the act of 1862, together with the addition of “heirs at law, next of kin or assignees.” The legislature thus assumed that there might be a personal “transaction” without a personal “communication.”
    V. The question is thus reduced to a construction of the words “transaction or communication had personally with the deceased.” (1.) To suppose a comma after the words “transaction” and “personally” is to end the discussion. (2.) But grant that the word “ personally” has reference to “ transaction” as well as “ commpnication;” and does that alter the case ? It proves, on the contrary, that’ the legislature assumed that there might be a personal transaction without a personal communication. Without this.assumption the statute, as it stood in 1860, was ample to cover personal communications. It seems to us that this is a supreme argument, and renders it perfectly conclusive that although there was no “personal communication” between Franklin and Haws, there was a “personal transaction” even if not in the ordinary civilian acceptation of the term, yet within the meaning of the legislature, and the intent and spirit of the statute.
    VI. On the second point we submit that the testimony, even if admissible, does not evidence any right of action in favor of the plaintiff against Haws. (1.) Franklin says he took Haws’ bank book and made deposits of money in the bank, which he caused to be credited in the bank book to Haws ; that the moneys so deposited were his, Franklin’s ; and it appears that Haws saw the credits arid made some corresponding entries in his check book, in one instance prefixing thereto the initials “ Gr. H. F.” but on the production of Haws’ bank book six of the alleged deposits by Franklin do not appear therein. (2.) We submit that, from these facts, the only deducible presumption of law is, that Franklin was paying a debt due by him to Haws. In the absence of an explanation, (the affirmative in respect to which is with the plaintiff,) the legal presumption always is that the money belonged to the one who received it, and not that he thereby became a debtor to the other. (Bogert v. Morse, 1 Comst. 377. Sweet v. Barney, 24 Barb. 533. Welch v. Seaborn, 1 Stark. 474.) (3.) One man cannot become the creditor of another without his consent; and it must appear that the money was paid at the instance either express or implied of the defendant. (Chitty, 660, ed. of 1860, and cases there cited.) (4.) Haws’ knowledge of the deposits, unaccompanied by any act, expression, or explanation, does not vary the presumption. He would, in case they were payments, examine his bank book, make entries in his check book, and note Franklin’s initials just as much as though they were- loans.
    VII. The plaintiff’s difficulty is, that before the law will presume an indebtedness, there must be something more than a mere passing of money, however effected, from one party to another ; and that “something more” involves what even the plaintiff’s learned counsel admits would be, without any question, both a personal tranaetion and a personal communication with the deceased.
   By the Court,

Robertson, J.

The 399th section of the Code, which confers on parties to actions generally the right of testifying on their own behalf, excepts therefrom in actions "of a certain kind against certain parties as the representatives or successors of others, occurrences of a certain description. Such representatives or successors are enumerated as the “ executors, administrators, heirs at law, next of kin or assignees of a deceased person.”' The actions are described as those where the persons sued “ have acquired title to the cause of action immediately from such deceased person or have been sued as such representatives or successorsand the occurrences are described as “ transactions or communications had personally ” by the party offered as a witness on his own behalf with such deceased person. The only question presented on this appeal turns on the meaning of the phrase “ transactions or communications personally.”

The object of this exception was, plainly, to exclude a party from, testifying to any thing which occurred to the other party, which or who was or must have been an actor in order to render the testimony relevant, had died since, and as clearly was not designed to exclude the testimony of a party as to an occurrence at which he needed not to have been present, or a fact which he needed not to have known, in order to make evidence of it admissible. It requires the transactions or communications which it excludes to have been personal between the living and deceased party. Nothing, of course, can well be personal unless the parties individually are present when it occurs. Of course, this section assumes that transactions may occur without a communication ; which latter means, undoubtedly, words either spoken or written, although afterwards the term conversation alone is used in the same section. Acts may be done, such as the delivery of an article, which may most materially affect the right of a party ; although not a word may be said by either party. This section, of course, could not have been intended simply to exclude the testimony of a party as to his own acts, and yet, allow him to testify where he was present at an occurrence between an agent of his and a deceased person.

The word “ transaction ” in this provision was never intended to embrace all the occurrences which go to make up a cause of action, in other words, every thing material in an action; otherwise a different form of expression would have been used ; for that purpose it would have expressly excluded either party from testifying at all as to any thing where the other party was dead. There may be numberless occurrences or facts necessary to be established in every action, in regard to which one of the parties may know nothing, and yet it would be unreasonable and unjust that his antagonist should by his death be deprived of the right of testifying in relation thereto.

The ownership of the money deposited by the plaintiff in the bank of the decedent, represented by the defendants, was in no sense a transaction or communication between them personally, since it did not appear that such decedent knew any thing about it. It is true it might have appeared, on cross-examination, that such ownership was claimed exclusively by virtue of something which passed between the plaintiff and such decedent personally, and then its exclusion would have been proper. The fact of deposit was sustained by other evidence, but to whom the money belonged, before it was so deposited, was a material subject of inquiry, whether the learned referee was right or wrong in his view that the presumption of law is that the delivery'by one man of money belonging to him to another, is intended to be the mere payment of a debt. It is yery clear, unless it was the plaintiff’s money when he deposited it, he could not well recover for it in this action. Upon the referee’s view, even if he did prove it, something more was necessary to he established ; some understanding between the parties, that all moneys so deposited should be considered as a loan repayable on demand. To that, of course, the plaintiff could not be allowed to testify, if entered into in person between them.

How far the referee would have been justified upon the evidence admitted by him, even with the addition" of that excluded, in finding in favor of the plaintiff, is not now in question. He excluded pertinent evidence not within the prohibition of" the statute, and for that error the judgment must be reversed, and a new trial had, with costs to abide the event.


source: Caselaw Access Project

author: Moncrief, J.

license: Public Domain

text:
    Jehial J. Post, plaintiff and respondent, vs. Heinrich Martens, impleaded, &c. defendant and appellant.
    1. A demise to a third person of premises in possession of tenants under a valid lease is void. It is neither effectual to disturb those in possession, nor to enable the lessee to evict them; and is no defense to an action for rent upon the original lease.
    2. A lease, signed as agent for the lessor, by a person not having authority in writing so to sign, cannot create the estate purported to be created in it, and is rendered void by the statute. (2 Jl. S. 135, § 6.)
    (Before Moncrief, Barbour and Garvin, 33.)

    Heard October 6, 1864;
    decided October 29, 1864.
    This is an appeal by the defendant Martens, from a judgment entered upon the verdict of a jury, under the direction of one of the justices of this court, in favor of the plaintiff.

      A. H. Reavey, for the appellant, defendant.

      W. Gleason, for the respondent, plaintiff.
   By the Court,

Moncrief, J.

The case is thus stated by. the appellant. This action was brought by the plaintiff to recover from the defendants (Robert Cross and the appellant,) certain sums of money alleged to be owing to him for the use and occupation of real estate in the city of New York, which had been leased to them by a written instrument for a term of three years, from the first day of May, 1860, at an annual rent of three hundred, dollars. The defendants put in separate answers. Heinrich Martens (sole appellant,) first, admitted the execution of the lease, but denied that any rent whatever was due to the plaintiff. Second. He stated, that in the month of August, 1860, (the precise day he did not recollect,) he vacated and delivered up the premises to the plaintiff, who accepted the same, and took and retained the possession thereof, and that immediately' thereafter the plaintiff rented them again to Robert Cross, upon the same terms and conditions as were stated in the original lease, and that Cook took immediate possession thereof. . He further averred that the plaintiff, with the mutual consent of both the defendants, then canceled the first lease, and that- Martens paid to the plaintiff all the rent that would be due up to the day of the surrender of his lease. A third and distinct defense set up in the answer, was, that the plaintiff, in the month of August, 1860, entered into the demised premises, jointly with the defendant Cross, and evicted and expelled him (Martens) from the same, and used and continued in the premises from August, 1860, 'by reason of which, Martens was prevented from occupying the same, and carrying on his business ; and that in consequence of this occupation, he sustained large damage, which damages he asks to be permitted to recoup against any recovery that the plaintiff might obtain in the action. The plaintiff filed a replication denying the new matter set out in his answer.”

The case came on for trial before one of the justices of this court and a jury. The plaintiff having read, without objection, the lease under which rent was claimed, (the execution and delivery of, and possession under which is admitted by the answer,) proved a computation of interest upon the balance claimed in his complaint, and rested his case.

If there was any attempt to sustain the allegations set up in the answer, further or otherwise than by offering in evidence a paper (marked C,) under date 7th February, 1860, signed “Jehiel J. Post, by James H. Thorne, agent” a careful scrutiny of the case presented upon appeal has not enabled me to discover it.

It does appear by testimony introduced by the defendant Martens, who was not sworn as a witness,' that he occupied the premises until he was afraid the building would fall down,” and that he paid rent therefor, on 6th November, 1861, and on the 9th February, 1863.

There was no question of fact to be submitted to the jury, under such circumstances. The plaintiff had established his case as alleged in his complaint, and the defendants had failed to make out the defense set up in the answer.

The exception to the exclusion of the paper C, is clearly untenable. First, No such defense was made by the answer. Second. The paper was immaterial, even if authority had been shown to execute it; as a so called demise of premises in possession of the defendants, it was as harmless as the paper upon which it was printed or written; it could neither be effectual to disturb those then in possession, or to enable Robert Cross to evict them ; and third, the person signing as agent for the plaintiff not having authority in writing so to do, could not create the estate mentioned in it, and by statute it was void. (2 R. S. p. 135, § 6.)

The cases cited upon the “ additional points,” for the appellant, have no application to the case under consideration.-

The learned justice was right in directing, a verdict for the plaintiff, and the judgment entered thereon must be affirmed.


author: Monell, J.

text:
    Thomas B. Oakley, plaintiff and respondent, vs. William S. Sears, defendant and appellant.
    Under an order authorizing the reading of a party’s testimony as taken on a former trial, the testimony cannot be read from a printed case, without proof that the paper read from contains a correct and true minute of the evidence.
    (Before Robertson, Ch. J., Monell and Garvin, JJ.)
    Heard October 12, 1864;
    decided October 29, 1864.
    This action was commenced May 10, 1862, on a check for $12,000, drawn by the defendant to the order of the plaintiff. The defense was, substantially, that it was understood that the check was not to be paid until certain funds were deposited in the defendant's hands by one Plin White to meet it, the check having been drawn'for his accommodation. The action was tried before a jury, and a verdict rendered for the plaintiff; but afterwards a new trial was granted on the ground of newly discovered evidence. The second trial took place April 22, 1864, and a verdict was again rendered for the plaintiff, on which judgment was entered July 9th, 1864, and the defendant appealed therefrom.

      L. S. Chatfield, for the appellant.

      George B. Thompson, for the respondent.
   Monell, J.

On the trial of this action, the plaintiff’s' counsel offered to read the testimony of the plaintiff, as purported to be given on the former trial, from a printed case settled for the purpose of arguing an appeal from the special to the general term of this court, after judgment. An order of this court made at' special term was read, which contains the following clause : And it is further ordered that the testimony of the plaintiff, taken on the former trial, be read on the.next trial thereof, as then taken, provided the plaintiff shall eléct so to read the same.”

The defendant objected to reading the testimony from such printed case ; the court overruled the objection and the defendant excepted. The testimony of the plaintiff was then read to the jury from such printed case.

It, appeared that a motion had been made at the special term upon a case for a new trial, which was granted, and the provision above quoted was inserted in the order. From the order granting a new trial an appeal was taken by the plaintiff to the general term, when the case was printed by the plaintiff. The general term affirmed the order. No evidence was given or offered that such printed case contained a correct statement of the plaintiff's testimony as given on the former trial. There was no proof that the defendant acquiesced in its correctness, nor any evidence whatever of its authenticity. The printed case was prepared by or under the direction of the plaintiff, and probably was not seen by the defendant until the argument of the appeal. The order merely authorized the reading of the plaintiff’s testimony as taken on the former trial. But before it could be read from any paper, evidence was necessary to prove that it was correct. Ordinarily the minutes of the testimony taken at the trial and proved to have been correctly taken, is the manner of proving testimony. There may be other modes of proving it; but in all cases there must be some proof that the paper read from contains a correct and true minute of the evidence. In this case no proof whatever was offered, and the jury were left to assume or presume the evidence as contained in a printed case to be correct.

We think it was error to allow the plaintiff’s evidence to be read from the printed case, and for this reason, without looking into the other exceptions, the judgment and order appealed from should be reversed and a new trial granted, with costs to abide the eventi

Garvin, J. concurred.

Robertson, Ch. J. The only difficulty in this case as to the admission of the statement of the plaintiff's testimony from a printed pamphlet, which I have, arises from the fact that the defendant’s counsel read another part of the same statement in his own favor. Such a case seems to be entirely different from the cross-examination of a witness improperly admitted, (Duff v. Lyon, 1 A. D. Smith, 536 ;) or, what is equivalent, reading answers to cross-interrogatories under a commission, when the reading of answers to the direct interrogatories annexed to the same has been objected to on account of some defect in executing the commission. Objections made at the trial may be waived by the act of the party objecting. If the defendant had first read the parts favorable to himself) clearly the plaintiff could read those favorable to him, as part of the same statement, and it would seem as though the order of introducing the testimony should not make that first offered inadmissible. An objection to the admission of the declarations of a third party has been held to be waived by calling such party and cross-examining him as to such declarations. (Tooker v. Gormer, 2 Hilt. 71. S. P. Grimm v. Hamel, Id. 434.) The strongest case I have been able to find upon this point is Simpson v. Watrus, (3 Hill, 619,) where an objection to parol evidence of the existence and contents of an execution and the acts of a witness under it was held not to be waived by subsequently calling for such execution and reexamining the witness to prove irregularities under it.

But I think the exception to the charge, that if the jury did not believe the defendant they should find for the plaintiff, was fatal. Another witness (Parsons) testified to facts sufficient to show that the check was given conditionally, and was passed to the plaintiff as collateral security with full knowledge of such condition, which was never performed. For this reason I concur in granting a new trial.

New trial granted.


author: Robertson, Ch. J.

text:
    Louis Kunzze, plaintiff and respondent, vs. The American Exchange Fire Insurance Company, defendants and appellants.
    1. A policy of insurance upon merchandise continues in force so long as the goods remain in the building specified therein, during the time it has to run, unless the contract is modified by the assent of both parties. Insurers who are bound' by the terms of the policy, for a loss occurring during the time covered by it, if they claim any variation of their original responsibility by a new agreement, must establish it by clear and indubitable evidence.
    2. A party insured being about to remove his stock of goods to another store, applied, by his agént, to the insurers to procure from them an ordinary transfer of the policy on the goods from the old to the new store. The secretary of the insurers told the agent, who described the property to him, to “let the policy remain as it was,” and when it expired “ it (meaning the premium) will he less than noW.” The agent, who left the policy with him, promised to call for it, later in the day, but failed to do so. Befpre the goods were removed from the original store, a loss by fire occurred.

      JBeld that there was no valid agreement varying or displacing that contained in the policy; and that the insurers were liable, under such policy, for the. loss.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard October 13, 1864;
    decided October 29, 1864.
    Appeal from a judgment entered upon the verdict of a jury. The action is on a policy of insurance covering a jeweler’s stock, fixtures and tools, at Tompkinsville, Staten Island. The risk was from May 1, 1862, to May 1, 1863, and the fire occurred Tuesday night, March 24, 1863.' Shortly before the fire, the plaintiff hired another store at Stapleton, with the intention of removing there, and had packed up his stock of goods for that purpose, on the 23d of March, hut was delayed by the mechanics. A day on two before the fire he informed Mr. Diederick, the agent who had effected his insurance, of his intention, and asked him if it would he necessary to notify the company, or to have his policy transferred. Mr. Diederick said he would take the policy to the company, which he did on the 23d of March, telling them the plaintiff “ wanted to remove his stock to Stapleton,” and “ gave them a description of the building,” leaving the policy with them. The plaintiff called for it the day after the fire, hut could not get it, and it was kept by them until the second day, when the secretary, Mr. Bates, brought it to the island, with an indorsement of transfer, made by the defendants’ secretary, as follows : “ Transferred to cover similar property contained in the brick building, part dwelling and store, (hazardous,) situate on the west side of Bay street, near Gore street, Stapleton, S. I.” and on the same day, March 23, a note of the transfer was made on the defendants’ books. .
    On the trial the court submitted the questions of fact 'to the jury, but withdrew from their consideration the defense that the policy had been transferred to another building, and the counsel for the defendants excepted. The jury rendered a verdict for the plaintiff, upon which judgment was entered, and the defendants appealed. No motion for a new trial was made at special term, nor did the court direct that the exceptions be heard in the first instance at general term.

      John S. Jenness, for the appellants.
    I. The insurance broker, Diedrick, was duly authorized by the plaintiff to procure the transfer of March 23d. The testimony of Diederick establishes that authority. Nor is the testimony of the plaintiff, when carefully considered, in conflict with Diederick’s on this point. The least favorable ruling to which the defendants were entitled was, therefore, that the question of authority in Diederick to effect the transfer should be submitted to the jury; the refusal of the court below to submit that question to the jury was erroneous.
    II. The assent of the company to the requested transfer is sufficiently evidenced by the indorsement made on the policy, nor was any question made at the trial upon the sufficiency of the evidence on that point. At all events, the indorsement made by the secretary in the usual course of business, and at the company’s usual place of business, and entered in the company’s books in the absence of the president, was prima facie sufficient evidence of the company’s assent to the transfer, even though the secretary’s act had not been shown to have been subsequently approved of by the president. (Angell on Fire and Life Ins. § 217. Conover v. Mutual Ins. Co., 1 Comst. 290. Bodle v. Chenango Mut. Ins. Co., 2 id. 53.)
    III. The refusal of the court to permit the defense of the transfer to go to the jury, on the ground that there had not been a delivery of the transfer sufficient to bind the plaintiff, was erroneous, (a.) No delivery whatever of the transfer is required by law to consummate the contract of transfer. The mere making, out either of a policy of insurance or a transfer of it, and the entry of it in the underwriter’s "books, after the terms are agreed on by all the parties, makes a complete contract between all parties, although the policy or transfer is not delivered. And the underwriter holds the policy as the bailee, of the assured. (Kohne v. The Ins. Co. of North America, 1 Wash. C. C. R. 93. Perkins v. Washington Ins. Co., 4 Cowen, 646. McCullock v. Eagle Ins. Co., 1 Pick. 278. Loring v. Proctor, 26 Maine Rep. 18. 1 Duer on Ins. p. 66. Lightbody v. North American Ins. Co., 23 Wend. 18. Angell on Ins. § 33. Hamilton v. Lycoming Ins. Co., 5 Barr, 339. Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6.) (b.) In the present case, there was some evidence of a delivery of the transfer, as it was put away for the plaintiff.

    IV. The contract of transfer of March 23d having thus been made by the plaintiff’s authority, and assented to in a binding form by the defendants, was one which absolutely removed the protection of the policy from the plaintiff’s goods, while in the store at Tompkinsville, forever after. And the circumstance that the goods had not been removed from that store at the time of the fire, ought not to invalidate the contract of transfer of the policy. The ruling of the court to the contrary of this proposition was erroneous.

      L. C. Clark, for the respondent.
    I. The judge properly withdrew from the jury the defense that the policy was transferred to another building.
    (1.) The insurance was on personal property at Tompkins-ville, and did not expire jintil May 1, 1863. No application was made to the company to have the risk discontinued before removal, but the application was solely for their consent to the removal of the goods to Stapleton, and the continuance of the insurance on them there after such removal. The company, therefore, had no right to make any other indorsement of transfer.
    (2.) There was no consideration for the agreement to transfer the risk to Stapleton, until the insured property was removed. The company had agreed to insure the goods at Tompkinsville until the 1st of May, and the only consideration for the alteration of that contract was the transfer of the property. Until then the original agreement was in full force.
    (3.) The indorsement on the policy had never been delivered to the plaintiff, or accepted or approved by him, and therefore it had no binding effect. It was clearly his intention not to have the policy transferred until his goods were removed, and if the company indorsed a'different transfer, it was not binding upon him until accepted or ratified by him.
    (4.) There is no evidence that the book-keeper who transferred the policy was authorized to do so.
    II. If the court was right in withdrawing that question from the jury, it properly refused to submit to them the question whether the plaintiff conferred sufficient authority upon Diederick to effect a transfer of the policy.
   By the Court,

Robertson, Ch. J.

The plaintiff’s, stock of goods, insured by the defendants, remained so under the original policy of insurance, in the original building, until the expiration of the risk, or the contract was modified by the assent of both parties. In regard to such modification, Diederick, the supposed agent of the plaintiff, testified, on his direct examination, that when he brought the original policy to the office of the defendants, to procure a transfer of it, he described the property to their secretary, who asked if he would wait for the policy ; to which he said he would stop for it when going to the five o’clock (p. m.) Staten Island ferry boat; but he never stopped for it. On cross-examination, he stated that he told the secretary the plaintiff wanted to remove his stock to Stapleton. Such secretary replied, “ Let the policy remain as it is, and when it expires, it will he less than now telling him “not to change the risk ; that the premium would be less on the ne'vfr building.” The book-keeper of the defendants (Bates) testified that Diederiek said the plaintiff “ was going to remove on that day, and he did not know but he was moving then, and wanted the policy transferred to cover the goods in the new building, and would be back in an hour to take it.” This, certainly, did not constitute either a fixed agreement, or an authority to the defendants’ agents to write what new agreement they pleased on the policy. It was important for the plaintiff to have inserted in the modification of the old agreement the “permission,” which the book-keeper (Bates) testified was inserted by the defendants, sometimes in what they called transfers, when the stock to be transferred was large, so as not to be capable of being removed in a day, or when the fact is specified. Such permission authorized the removal of the stock to the new building, and continued the insurance. It would have been a piece of gross carelessness on the part of Diederiek to have accepted such transfer without such qualification, when he did not know, as he acknowledged, where the goods were. A transfer, without such continuance, was equivalent to a new policy of insurance, and the request for such transfer, without such continuance, was equivalent to an application for it, to notice of the acceptance whereof, by the company, tire plaintiff or his agent was entitled. They never stated to such agent whether they would make such transfer with or without such permission. They did nothing to bind themselves, nor did they agree to make the change before the policy was, with the transfer, to be redelivered, and might have delivered it back without any indorsement ; and so not have been bound at all. The terms of the modification of the contract could not be settled until the form of transfer was assented .to by both parties ; and it is the duty of the defendants, being bound by the terms of the original written contract for the loss, to make out by the clearest evidenee an irrevocable change of responsibility. There was nothing said or done on the occasion to have prevented Diederick, if he had returned, as he promised, to have repudiated the transfer, on account of the absence of the qualified continuance of the old policy until the removal was complete.

Judgment affirmed.


author: Garvin, J.

text:
    William A. Bensel, plaintiff and respondent, vs. James Lynch, sheriff, &c. defendant and appellant.
    1. A sheriff is not allowed to allege error in the judgment or process, as an excuse for an escape, where the process is regular upon its face.
    2. Where a defendant is arrested by the sheriff, upon an order of arrest, and does not give bail, and no deposit is made instead thereof, the sheriff becomes liable, to the same extent as if he were himself bail, or had made a deposit of the amount required.
    3. And if the defendant does not appear when process is issued against his person, the sheriff, as bail, is liable to the plaintiff for the amount of the judgment, without regard to the insolvency of the defendant in the execution.
    4. Hence, in an action against the sheriff) to enforce that liability, after an execution against the body of the judgment debtor has been returned non est, evidence of the insolvency of the judgment debtor is immaterial-, and-should be rejected.
    (Before Moncrief, Barbour and Garvin, JJ.)
    Heard June 15, 1864;
    decided December 16, 1864.
    Appeal by the defendant, from a judgment entered on the verdict of a jury. The facts appear in the opinion of the court.

      William Curtis Noyes and A. J. Vanderpoel, for the appellant.
    I. The .complaint in this action presents a case which, prior to the Code, would have been termed an escape on mesne process. For such an escape the Revised Statutes prescribed a remedy, which is still in force. (2 R. S. 437, § 62.)

      1. Under this statute the sheriff is made answerable to the creditor in an action on the case to the extent of the damages sustained by him. (Patterson v. Westervelt, 17 Wend. 543.)
    2. The Code has not repealed this provision of the statute. (Code, § 471.)
    3. It was an error, therefore, to exclude the evidence offered as to White’s insolvency. It would have established that the plaintiff had only sustained nominal damages.
    II. The theory of the plaintiff is that this is an action upon an alleged liability of the sheriff as bail for White, by reason of White’s not having given bail according to sections 193 to 1-96 of the Code. (Code, § 201.) If for the purpose of the argument we assume that the sheriff under section 201 becomes liable as special bail, the complaint in this action is not sufficient; it is not adapted to such a case.
    1. It does not allege that 'the sheriff became liable as bail, nor any fact which would show that the plaintiff sought to recover under section 201 of the Code. It does allege that White escaped, thus stating a case under section 62 of the statutes, entitled, “ Of escapes, and the liabilities of sheriffs therefor.” (2 R. S. 437.)
    2. If the pleader has left it in doubt whether he intends to proceed under section 201 of the Code, or under the Revised Statutes, as for an escape, the pleading will be construed most strongly against him. (Slocum v. Clark, 2 Hill, 475. Ferriss v. N. A. Fire Insurance Co., 1 id. 71. Code, § 176.)
    3. Holding the sheriff liable for a fi^ed sum, instead of the actual damage, is upon the principle of charging him with a penalty. The courts lean against a construction, which would charge a person with a penalty, instead of with a liability for actual damage.
    III. If this is to be treated as an action against the sheriff as bail, under section 201, it was competent for the defendant to give evidence of White’s insolvency.
    1. It was not the intention of the legislature, when enacting the Code, to do more than to change the forms of procedure. It was not intended to give new causes of action ; nor to attach new liabilities, nor to give remedies of a nature substantially different from those previously existing. It is reasonable that there should be a distinction in the extent of the liability of one who voluntary becomes bail, and a person upon whom a burden is cast by reason of his official position. The former asks that the prisoner may be discharged, and his own liability substituted therefor. When bail are offered by a defendant, the sheriff is liable to an action by the defendant, if he does not accept them, provided he can show that they were reasonably sufficient. The sheriff, without the power of compelling even an ex parte justification, rejects them pt his peril. After the sheriff has accepted the sureties, under these circumstances, he cannot compel them to justify if excepted to. On his part, is there no neglect of duty. Why should the penalty pf paying the debt of an insolvent be thrown upon him ? (Lovell v, Plomer, 15 East, 320.) When the sheriff is sued for taking insufficient bail, he may show that the principal is insolvent and the plaintiff will be entitled to nominal damages only. (Eaton v. Ozier, 2 Greenl. 46. Weld v. Bartlett, 10 Mass. Rep. 470. Nye v. Smith, 11 id. 188. Shackford v. Goodwin, 13 id. 187.)
    2. According to the practice before the Code, if the defendant did not give bail to the sheriff, the sheriff was bound to keep him in custody, or he became Rabie to an action on the case. This law is still in force.
    3. If he gave hail to the sheriff, it was to the effect that he would appear and put in special hail within twenty days after the return day of the writ. The former was styled bail to the sheriff and the other bail to the action. (1 Burr. Prac. 105.) If this bail was not perfected in due time, the plaintiff could proceed upon the bail bond given to the sheriff, or against the sheriff in the same manner as if no bail had been put in. Section 201 of. the Code did not intend to introduce, as against the sheriff, any new rule of liability. The Code was intended •to change forms of procedure, and not. tp create new liabilities, and no other instance can b.e found in which the Code prescribes a new measure of liability for acts or omissions connected with matters which were attained in another mode before the Code. We have noticed the distinction which existed before the Code between hail to the sheriff and bail to the action. • When the ' sheriff, before the Code, desired to relieve himself from the liability for damages which he might incur by reason of the defendant’s escape, or his failure to perfect special bail, he could do so by putting in and perfecting special bail. The Code intended to perpetuate that practice. Section 201 provides : “ If, after being arrested, the defendant escape or be rescued, or bail be not given or justified, or a deposit be not made instead' thereof, the sheriff shall himself be liable as bail. But he may discharge himself from such liabiity by the giving and justification of bail, as'provided in sections 193, 194, 195 and 196, at any time before process against the person of the defendant, to enforce an order or judgment in the action. This could be done before the Code. The word “bail,” as used in the first paragraph, section 201, is not limited to the sense in which it is used in section 187; and when it is in the latter clause so limited, the court expressly declare it. It is designated as bail below, bail above, bail in error, and bail in the various’ interlocutory proceedings which may arise, involving arrests and custody. If the sheriff is liable as bail proper, howdoes he alter his liability by putting in and perfecting bail ? But if the analogy to the former practice is maintained, section 201 is easily understood. Again : can it be suggested why there should be any difference between the liability of the sheriff here and in the case of a defendant who having given bail, comes into the custody of the sheriff on a surrender, under section 188 ? In that case, he is undoubtedly liable for the safe keeping of the prisoner, but is only liable for damages on the escape. There is no doubt but the prisoner on mesne process is entitled to the jail liberties. For an escape from the jail liberties when a limit bond has been given, the bail are only liable for damages, and may show insolvency. When White was taken in custody he was entitled to release from confinement upon givng the sheriff a bond for the jail liberties.
    The Revised Statutes provide, (2 R. S. 433, §40 :) Every person who shall be in the custody of the sheriff of any county by virtue, 1. Of any capias ad respondendum, 4. In consequence of a surrender in exoneration of his bail, shall be entitled to be admitted to the liberties of the jail, * * upon his executing a bond to such sheriff and his assigns, as prescribed in the next section.
    Section 41. Form of bond. 1. It shall not be less than double the amount of the sum in which the sheriff was required to hold the defendant to bail, if he be in custody on mesne process, or be surrendered in exoneration of his bail before judgment docketed against him. 2. Execution. 3. Judgment, but no execution. Section 42. The condition. That he will remain a true and faithful prisoner, &c. Section 48. In every suit on the bond the defendants may plead a voluntary return-of the prisoner, &c. and such defendants shall be entitled to make such or any other defense to such suit which might be made by such sheriff to an action against him for such escape. (Code, § 471.) “ Existing statutory provisions relating to actions not inconsistent with this act and in substance applicable to the actions hereby provided,” are not affected by the Code. Under those statutes there never was any question but that the sheriff and bail could prove insolvency. (Patterson v. Westervelt, 17 Wend. 543.) But section 74, which allows an assignment of the bond to be taken by the plaintiff, so that he may sue upon it instead of the sheriff, provides : “2. If such prisoner was confined by virtue of a capias ad respondendum, or upon a surrender in exoneration of his bail, made before or after judgment rendered against him, the plaintiff shall recover only the actual damages sustained by him.” But suppose it is suggested on the part of the plaintiff that he need not bring his suit until after judgment for the escape on the mesne process, and that construing the provisions of the Revised Statutes and Code, the plaintiff establishing the sheriff’s liability as bail, that amount would be conclusive under section 49. The fallacy of this argument is apparent. The rjule as to the extent of the liability would then be dependent on the volition of the plaintiff as to the time when he would commence his suit. If he commences it before judgment, he recovers his actual damages sustained by the escape. For that amount, and that amount only, is the limit bond liable. The prisoner having absconded,' the sheriff cannot get him back into the confinement from which the law required him to release him, and what is there on the plaintiff’s theory, when the defendant is wanted on the final process, to prevent an action against the sheriff on his liability as special bail ? The case may be briefly stated : 1. Defendant in custody. 2. Sheriff is bound to grant liberties. 3. Defendant runs away. 4. Suit on bond, actual damages recovered. 5. No further remedy on the bond, no power or opportunity to control the prisoner. 6. Can the sheriff then be sued as special bail ? At common law the only remedy was by action for an escape. Case only could be brought, even in case of escape from final process. (Rawson v. Dole, 2 John. 454. Thomas v. Weed, 14 id. 255. Littlefield v. Brown, 1 Wend. 401.) In England, and in every state of the Union in which an arrest is allowed,.the rule in a case of this kind is the actual damage. Section 276 shows that tlie Code did not intend to change rules of damage. The court will not intend an escape voluntary. Escape is for neglect of duty.
    IY. The result is, that the evidence as to the insolvency of White should have been admitted, and hence a new trial should be granted.

      John E. Parsons, for the respondent.
    I. The affidavits on which the order of arrest was made, made out at sufficient case against White. Had it been otherwise, it would have been wholly immaterial. White acquiesced in the propriety of his arrest; against him the order was a judicial determination to that effect. He not having questioned his liability to arrest, the defendant cannot do so. In an action to enforce their liability, bail cannot raise the question of the liability off their principal to arrest. (Stever v. Sornberger, 24 Wend. 275. Gregory v. Levy, 12 Barb. 610.) A sheriff is never allowed to allege error, either in the judgment or process, as an excuse for an escape; if he arrest the party, he is bound to keep him till he is discharged by' due course of law. (Cable v. Cooper, 15 John. 152.)
    II. The sheriff is sued on his liability as bail. That liability in the case of bail is perfected by the return of the sheriff to the execution against the person, “ that the defendant'could not be found within his county.” (2 R. S. 382, §31, original edition.) It would be more remarkable than just, that the sheriff’s return should fix the liability of innocent bail having no control to compel him to perform his duty; and yet not be sufficient against himself, whose duty it was, in this case for instance, to render White amenable to the process of the court.
    III. The liability of bail is fixed at the amount of the judgment against the principal and interest, unless, as here, where the amount of bail is less than that of the judgment; in which case the liability is fixed at the amount of bail, with interest from the time the right to sue on the bond matures ; here the interest was not allowed-. And the liability of the sheriff, when charged as bail, is the same ; thus excluding the right to offer evidence in mitigation.
    ■ The whole point has been directly decided in this state in two reported and numerous unreported cases, and can scarcely be seriously questioned. (Metcalf v. Stryker, 10 Abb. 12. 31 Barb. 62. Gallarati v. Orser, 4 Bosw. 94.) The latter case went far beyond the position urged, this court holding that where the case was of bail in replevin, and a bond was given with sureties, who failed to justify, that the sheriff was further liable as on the form of undertaking required in replevin, for the return of the property; and so could not discharge his liability by a surrender of the debtor. This case, though reversed" on other grounds, in the Court of Appeals, expresses the rule on the point in question in terms which have never been doubted. It seems unnecessary to say a word in support of so self-evident a proposition. It will not be disputed that the liability of bail is as contended. Bail can only discharge themselves “ by paying the debt and costs in the original action to the extent of the bail bond, (Dougl. 330; Cowp. 71,) and also the costs in the action .on the bond.” (1 Arch. Pr. 101.) (1 Burrill’s Practice, 396. Treadwell v. McKeel, 2 John. Cas. 340. Hale v. Russ, 1 Greenl. 336. Champion v. Noyes, 2 Mass. Rep. 484. Harrington v. Dennie, 13 id. 94. 1 Chitty on Pl. 110. Levy v. Nicholas, General Term Superior Court, Jan. 1863.) And not only has the liability of the sheriff been uniformly held to be the same, and evidence offered in mitigation been rejected. (Gregory v. Levy, 12 Barb. 610. Simmons v. Bradford, 15 Mass. Rep. 82. Seeley v. Brown, 14 Pick. 177. Heppel v. King, 7 D. & E. 370. Sartos v. Merceques, 9 How Pr. 188, Seaver v. Genner, 10 A 66, 256.)
    But it is impossible to . give any other signification or construction to the statute : “ If, after being arrested, the defendant escape or be rescued, or bail be not given or justified, or a deposit be not made instead thereof, the sheriff shall himself be liable as bail.” (Code, § 201.)
   By the Court,

Garvin, J.

This case was tried before a justice of this court and a jury, on the 15th of March, 1864. A verdict was found for the plaintiffs for the sum of $7000, under the direction of the court, to which the defendant duly excepted. The plaintiff claimed to recover of the defendant, alleging in his complaint: That one Phin White was arrested hy him, and that bail was- not given, nor was a deposit made, whereby the sheriff had made himself liable as bail.

It appeared upon the trial that on the 16th of September, 1862, an order was made by a justice of this court to arrest Phin White and hold him to bail in the sum of $7000 at the suit of William P. Bensel, and directed to the sheriff, James Lynch, which order was made upon affidavits showing that the said White fraudulently contracted the debt for which the action was brought. That at the time the money was obtained from the plaintiff, White represented himself to be a man of property, but was in fact utterly insolvent, making a case under the 4th subdivision of section 179 of the Code. That the sheriff arrested" White under and by virtue of the order; the bail did not justify and no deposit was made instead thereof. It also appeared th,at judgment in that action was obtained for the plaintiff against White, for the sum of $8245.29 on the 24th of December, 1862; That two executions were issued against him, one against the property, and the other against the person of the, defendant. To the first the sheriff made return of no property, real or personal; and to the second, “Defendant not found.”

The defendant moved to dismiss the complaint on the grounds,

1st. That the affidavit did not authorize the granting of the order of arrest, and that the sheriff was not liable.

2d. That the plaintiff was bound, to show affirmatively that White had actually escajoed at the time of the commencement of this action. The motion was denied, and the defendant excepted.

, The defendant offered to show, in mitigation of damages, ■ that at the time of the commencement of this action, Phin White was and still is utterly insolvent, and without any property, real or personal, or any means whatever, out of which any thing could have been collected. This evidence was objected to and excluded; to which ruling the defendant excepted. >

A verdict was ordered for the plaintiffs, and the exceptions directed to be heard in the first instance at the general term. It appears from the sheriff’s certificate that on the 20th of September, 1862, he arrested and had in custody Phin White by virtue of an order of arrest. He was bound to keep him funtil he was legally discharged by due course of law, or permitted to go' at large on bail, or by making such deposit as the statute requires. The sheriff is not allowed to allege error in the judgment or process as an excuse for an escape, where the process is regular upon its face. This was held as early as the case of Cable v. Cooper, (15 John. 152,) and has been reaffirmed in numerous cases, since. This fully disposes of the first ground taken for the 'dismissal of the complaint. The second ground there taken is ,so allied with the main question in the case that it may as well he considered in that connection.

The important question arising in the case is that arising upon admissibility of the evidence offered to show the insolvency of White at the time of the commencement of this action against the sheriff, and ever since.

There can be no question whatever that the sheriff is himself liable as bail. The defendant White was- arrested; he did not give bail, nor was a deposit made instead thereof; whereupon the 201st section of the Code declares “the sheriff shall himself he liable as hail.” These are the precise words of the statute. It would- be a very violent presumption for us to assume that the legislature did not mean, by language so plain, precise, clear and definite, exactly what they have expressed.

It has been decided in the Court of Appeals, in the case of Gallarati v. Orser, (27 N. Y. Rep. 324,) that if the sheriff should discharge the defendant without his compliance with § 201, after arrest, he would himself he liable, precisely as the sureties would have been liable, if a proper undertaking had been given. The same principle was held in this court in the same case in 4 Bosw. Rep. 94, which principle was affirmed in the Court of Appeals. Before the Code, White could have been arrested upon a capias ad respondendum and held to bail, if he had escaped. It would have been called escape upon mesne process. It is therefore contended, on the part of the defendant, that inasmuch as by the 2 R. S. § 62, the sheriff would only have been liable for the damages sustained by the plaintiff, the same rule should still prevail. It is true, that the sheriff would then only have been liable “ to the extent of the damages sustained by him.” (2 R. S. §62.) But a careful examination of the Code, and the several sections contained in chapter 1, of title 7, clearly shows that the provisions embraced in § 201, were intended to apply to a case which prior to the Code would have been termed an escape on mesne process, and to make the sheriff liable to the same extent as if he were himself bail, thus changing the rule of damages. This seems to be the fair and reasonable construction of the section independent of any authoritative exposition ; but as we have seen, it is settled upon authority that the sheriff’s liability is the same as that of bail.; (4 Bosw. Rep. 94. 31 Barb. Rep. 62.) The adjudications upon the subject make it clear what the liability of bail would be if the bail justified as between the bail and the plaintiff in the action. The obligation is in the words of § 187, of the Code : “ That the defendant shall at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein.” If the defendant should not appear when process is issued against his person, it is a breach of the condition of the undertaking,, and the bail are liable to the plaintiff for the amount of the judgment without regard to the insolvency of the defendant in the execution. (31 Barb. 62.) I was very strongly impressed on the argument of this case with the views of the counsel for the appellant. It seemed a great hardship 'to compel the sheriff to respond in damages to the amount off the judgment; but, further reflection has satisfied me that no injury can happen to the sheriff if he pursues the plain and obvious requirements of the statute. The sheriff has the .power to. hold the defendant in custody until he gives bail, and they justify, or the defendant makes the deposit instead of going bail. The sheriff’s duty is very simple. If he fails to comply with the statutory requirements, he makes himself liable to the same extent' as if he was himself bail, or made a deposit of the amount required; that is, the sum in which the defendant was held to bail, being the amount of the verdict in this action. This question was substantially decided by this court, in the case of Gallarati v. Orser, (4 Bosw. 101,) and very elaborately and ably discussed and decided by Justice Emott in Metcalf v. Stryker, (31 Barb. 62.) In the last case cited, the precise question here presented was raised in the court below; and it was held “ that the sheriff’s liability is fixed by and at the time of the original judgment, and that evidence of the insolvency of the judgment debtor is immaterial, in. an action to enforce that liability, and should he rejected.” This construction of the statute having been settled in our own court, and by the Supreme Court, and it being' in accordance with the manifest interpretation of the statute, we must hold that the plaintiff is entitled to an order for judgment upon the verdict in this action, and that the exceptions on the part of the defendant are not well taken, and must be overruled, with costs.


text:
    Edward Kaupe et al. plaintiffs and respondents, vs. Charles Bridge et al. defendants and appellants.
    1. In an action by judgment creditors, to set aside as fraudulent a transfer of goods and debts, made by the judgment debtor, the question of the invalidity of the transfer, though precedent to any liability of the assignee for the amount of the plaintiffs’ claim, is immaterial, unless he has in his hands some proceeds of sales, or some debts or goods for which he is bound to account.
    2. In such an action, the quantity and kind of goods and character of debts, as well as the amount of the proceeds, should either be proved, on the trial, or left for determination by a referee; the court, in the meantime, rendering a contingent judgment dependent upon the amount found by the referee to be due.
    3. In order to warrant such a contingent judgment, however, it should either appear that there are goods remaining unsold, and debts uncollected, in the hands of the assignee, or he must be determined to be responsible'for such proceeds.
    4. If the goods have been sold by him, before the commencement of the action to recover such proceeds by the judgment creditor, and before the issuing of execution on his judgment, and the assignee has nothing in his hands applicable to the payment of the plaintiffs’ claim, except the proceeds of goods and debts received by him before the issuing of the plaintiffs’ execution, such proceeds are not liable for the judgment creditor’s claim.
    5. Where a fraudulent purchaser of goods has sold them, the courts have in no case made him liable for their proceeds, as proceeds of property belonging to his vendor, which ought to be applied to the payment of his debts.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard October 10, 1864;
    decided December 16, 1864.
    This is an appeal by the defendants, from a judgment of the court, at special term. The action was by the plaintiffs, as judgment creditors of the defendant, Bridge, to set aside, as fraudulent, the transfer of certain goods and choses in action to the defendant, Burdick, and vacate a judgment recovered in the Supreme Court, by Burdick against Bridge, and the appointment of Finn, as receiver of the property, &c. of Bridge, in supplemental proceedings based upon the return of an execution unsatisfied, issued upon that judgment.
    The action was brought to trial upon the pleadings and evidence at a special term of this court, held on the 18th day. of October, 1863, before a justice of this court, who found the following facts :
    1st. That on the 29 th day of October, 1862, the plaintiffs recovered a judgment in the Court of Common Pleas of the city and county of New York, against the defendant Charles Bridge, for $1980.28 ; that said judgment was obtained upon promissory notes made in December, 1860, and January and February, 1861, that fell due in the months of August, September and October, 1861; and that an execution against the property of the said Charles Bridge was duly issued to the sheriff of the city and county of New York; and that said execution was, on the 30 th December, 1862, returned wholly unsatisfied.
    2d. That on the 24th day of April, 1861, the said Charles Bridge was in possession of a store of goods,'No. 359 Broadway ; that on that day he made a sale for $24,072 of his entire stock of goods to the defendant Burdick; that at such sale Burdick paid $1000 in cash, and gave his notes, payable at times ranging from two to twenty months, for $23,072. That at this time said Bridge was insolvent, and known by Burdick to be so ; and that such sale was made for the purpose of hindering, delaying and defrauding creditors of said Bridge, within the knowledge of the purchaser.
    3d. That at divers times between the said 24th day of April and 17th of June, 1861, the said Bridge sold to Burdick a large amount of his bills receivable and book accounts, for the sum of $32,650. And that on said sale the said Burdick gave his promissory notes, payable at various periods, running from two to twenty months ; and that such sale was made with intent to hinder, delay and defraud the creditors of said Bridge, within the knowledge of the said Burdick.
    4th. That on thé 17th day of June, 1861, the said Bridge confessed a judgment to said Burdick for $10,624.68, and costs $6.94, in the Supreme Court, first district, upon a statement as set forth in the complaint; and that on the 24th day of said June, 1861, a certain other judgment, by offer,-was entered in said Supreme Court in favor of said Burdick, against said Bridge, for $6813.60 ; that the summons in the suit was served on the 24th day of June, and on that day the said Bridge attended at the office of the plaintiff’s attorney, and offered to permit a judgment to be entered for the entire amount mentioned in the complaint; that thereupon judgment was entered, and executions were issued to the sheriff of the city and county of New York, against said Bridge, on both of said judgments, and were returned on the 29th of June, wholly unsatisfied ; that at the time when executions were issued and returned, the said Bridge had real estate in the city of New York liable to execution, and on which the judgments were a lien within the knowledge of said Burdick ; that thereupon certain other proceedings supplementary to the executions on said judgments were instituted, the said Bridge was examined, and the defendant Archibald T. Finn, on the 27th of July, 1861, appointed receiver of all the property of said Bridge, and entered upon the discharge of his duties ; that said judgments, by confession, were entered with intent to hinder, delay and defraud creditors of the said Bridge, and to place his property beyond the reach of their executions; and that the appointment of Finn as receiver was collusive, and made with intent of placing the entire estate of said Bridge beyond the reach of his creditors.
    As conclusions of law the justice found :
    1st. That the several sales of said goods, and bills receivable and book accounts, by said - Bridge, to said Burdick, were void as against the plaintiff, and that the same be set aside.
    2d. That the judgment by confession, on the 17th June, 1861, in the Supreme Court, was fraudulent and void, and that the same he'vacated.
    3d. That all parties being of opinion that the defendant Einn was a suitable person to be "appointed receiver in this action, he should so be appointed receiver, and directed to possess himself of all property which went into the hands of said-Burdick, or the proceeds thereof, and out of the proceeds of any property that might come to, or then was in his hands, he first pay the judgment to the plaintiffs, together with interest thereon, and costs and allowances, fixed at $100 ; arid that the plaintiffs were entitled to a judgment against the defend- • ants Bridge and Burdick for their costs, in case the funds in the hands of the receiver were insufficient to pay the same.
    Judgment being entered accordingly, the defendants appealed.

      W. F. Allen, for the appellants.

      W. Fullerton, for the respondents.
   By the Court,

Robertson, J.

The. learned justice before whom this cause was tried states, in his decision, as a conclusion of law, that a receiver to be appointed in this action should “possess himself of all property which went into the hands of (the. defendant) Burdick or the proceeds thereof; and out of the proceeds of any property that may come to * * his hands pay” the judgment of the plaintiffs, with interest and costs ; also that “ the plaintiffs are entitled to a judgment against the defendants, Bridge and Burdick, for their costs, in case the fu.nds in the hands of the receiver are insufficient to pay them.” The Code requires that “judgment upon a decision shall be entered accordingly,” (§267.) The formal judgment, as entered in this case, requires the defendant Burdick to assign to the receiver thereby appointed not only all goods and debts transferred to him by the defendant Bridge, in 1861, still remaining in his hands, but also the proceeds of such goods or debts as have been sold. It also provides for the payment of the claim of the plaintiffs out of the moneys to come into the receiver’s hands as such; and adjudges that the plaintiffs recover their costs against the defendants, Burdick and Bridge, in case the moneys in such receiver’s hands are not sufficient to pay them. No provision is made therein for any mode of ascertaining what such goods or debts-remaining undisposed of, or the proceeds of such sales, were ; nor was any evidence taken on the trial of either; so that the only mode of determining what they are, is by a new litigation between such receiver and the defendant, Burdick, to take place in this action or some other to. be brought for the purpose. If, in this action, it would seem that judgment had not been rendered, except as to costs, because there was no final determination of the rights of the parties.” (Oode, § 245.) Indeed, on examination, all the real issues in the action will be found not to have been tried or disposed of by the judgment. One clearly was, whether the defendant, Burdick, had in his hands any property which he was bound to apply to the payment of the plaintiffs’ judgment. The questions of the validity of the transfers to such defendant by the defendant Bridge, though preliminary to rendering the defendant Burdick so liable, became wholly immaterial, unless he had in his hands some proceeds of sales or some debts or goods for which he was bound to account. In that event, the quantity and kind of goods and character of debts, as well as. amount of proceeds, should have been either proved on the trial or left for determination by a referee, the court rendering in the mean time a contingent judgment, dependent upon the amount found due by such referee. In order, however, to warrant- such contingent judgment, it should either have appeared that there were goods remaining unsold, and debts uncollected, in the1 hands of the defendant Burdick, or he must be determined to be responsible for such proceeds; By the testimony of the only witness examined as to the sale of the goods, (the defendant Burdick,) they- all appear to have been sold by the spring following- the purchase, (1862,) before the commencement of this action and before the issuing of execution on the plaintiffs’ judgment. By the same witness, on his cross-examination, it appears that most of the purchased debts and notes not collected are bad ; so that unless some of such bills and notes still are collectable, nothing remains in the hands of Burdick applicable to the payment of the plaintiffs’ judgment, except the proceeds of goods and debts received by him before the issuing of execution on the judgment of the plaintiffs. The defendant, Burdick, paid for such stock of merchandise upwards of twenty-four thousand dollars in notes, delivered over to creditors of the defendant Bridge, in satisfaction of their claims) and since taken up by him. It does not appear how much he received'from the sale of such goods. He also, as he testified, gave notes for nearly thirty-seven thousand dollars, as the consideration for the claims purchased by him, out of which he only realized twenty-six thousand dollars, which notes were also delivered by Bridge in satisfaction of creditors’ debts, and paid. He has therefore paid upwards of sixty thousand dollars, in fact, in discharge of claims against Bridge, equally meritorious with that of the plaintiff,'as a consideration for the transfer to him of the property of such debtor. The notes having arrived at maturity, and being paid, before any steps taken by the plaintiff, the payment thereof, as regards him, is placed in the same situation as if Burdick had at the time, and in consideration of the transfers to him, paid such debts ; and at least as to a quantity of goods and debts equal in value to such payments, he would have an equity to be reimbursed. But, in fact, the statute against fraudulent conveyances, (2 R. S. 68,) merely avoids the transfer, and leaves the property transferred as the insolvent debtor’s to be applied to the payment of his pursuing creditors. A sale by a vendee or assignee to a bona fide purchaser, transfers a valid title, yet the statute does not declare the money or other article for which such transferred property is exchanged, to be also liable for the pursuing creditors’ claims. If Burdick had been a fraudulent general assignee for the benefit of creditors, he would have been entitled to credit for moneys paid by him, pursuant to such assignment, before any equitable or legal lien was obtained by the plaintiff in this action. (Wakeman v. Grover, 4 Paige, 23. Ames v. Blunt, 5 id. 13. Barney v. Griffin, 4 Sandf. Ch. 552. Averill v. Louck, 6 Barb. 470. Bostwick v. Berner, 10 Abb. Pr. 197. Collumb v. Read, 24 N. Y. Rep. 505.) In Butler v. Stoddard, (7 Paige, 163,) a fraudulent vendee was held entitled to retain the proceeds of the sale of goods transferred to him, and moneys collected by him before the lien of the pursuing creditor, who was plaintiff, attached, only because he gave as consideration for such purchase the discharge of a debt due to him. Courts do not, in any case, seem to have made a fraudulent purchaser liable for the proceeds of goods sold by him previously fraudulently assigned to him, as proceeds of property belonging to the debtor, which ought to be applied to the payment o.f his creditors. The utmost they have done, even when the goods were not sold, seems to have been to ratify the transfer, correcting it by purifying it of the fraud in the shape in which it existed. Thus in Weed v. Pierce, (9 Cowen, 722,) where the fraud consisted in the sale of goods on a long credit, it was considered that the fraud consisted in the length of such credit, and Walworth, J. (afterwards chancellor,) held such purchasers to be liable as for a cash purchase, and for the benefit of the creditors of the sellers reached their responsibility therefor, as a debt due to the insolvent debtor, payable forthwith. Possibly, applying the same principle to goods sold by an insolvent debtor, where the fraud consists in a.sale at an under price, the pursuing creditor may reach the difference between that and a fair price, as a debt still due the debtor, for the benefit of such creditor. But in this case no evidence was given of such difference : nor was any reference ordered in the judgment to ascertain it. No materials were therefore furnished, on the trial, or means adopted by the judgment to furnish them, to complete that judgment.

Upon the foregoing views of the law applicable to the case, the direction to the defendant Burdick to" pay over to a receiver the proceeds of any goods sold or moneys collected by him as such proceeds or money collected, was clearly erroneous. The direction to deliver over any goods unsold was. equally so, when the only evidence in the case is that they were sold before any lien was obtained thereon by the plaintiffs. The transfer of the debts uncollected might be proper, if they are of any value ; but if the last prove to be valueless, and their assignment is the only relief obtained by the plaintiff, the defendant Burdick ought not to be charged with costs.

Although the decision filed declares the judgment obtained by Burdick on the 24th of June, 186T, upon the offer of the defendant Bridge, to have been entered with a fraudulent intent, and the appointment of a receiver upon supplementary proceedings taken thereon to have been collusive, the formal judgment is silent ág to such judgment and appointment. And although the latter does not declare such judgment void, it does not allow the defendant Burdick to retain, or the receiver to pay the amount of such judgment, although its lien, was prior to that of the plaintiff on the defendant Bridge's property. If the supplementary proceeding is not interfered with, it may be proper to appoint the same receiver in this action; but the equities of different claimants upon the funds in his hands must be settled in an application in such proceedr ing as well as in this action. Unless such judgment of the defendants is to be set aside, the peremptory direction in the formal judgment in this action, to pay the plaintiffs' claim without regard thereto, would be improper.

The direction to the defendant Burdick to pay into the receiver's hands more than sufficient to satisfy the present plaintiff’s claim and for the receiver to pay the surplus into court, w;as not necessary. The plaintiff brought his action to procure satisfaction of his own claim only. When the action is ended and he is satisfied, there is no basis left for jurisdiction by the court over a fund in the defendants* hands. For what pimpose, or length of time, and on what principle they are to be retained does not appear. It certainly might encourage or invite actions by other creditors, but that is no part of the right of the plaintiff, or the duty of the court. That direction should therefore not have been part, of the judicial determination of the rights of the parties in this action. So also the reservation of the power of what is called further directions, being either unnecessary or a usurpation of a power, of control over some rights after the final judgment, (Code, § 245,) is improper;

The remaining, questions which present themselves are whether the formal judgment so finally disposes of the rights of the parties as to be susceptible of modification. If not, whether the decision on which it is based does so. If neither does so, the judgment must of course be reversed and a new trial ordered. In regard to the second case the formal judgment might be vacated, with liberty to the plaintiffs to apply for leave to file a new judgment corresponding with the decision, and disposing of all the rights of the parties; or to the justice who tried the case, for any amendment which he can legally make of his decision. In regard to the first, any erroneous provisions not essential to the judgment might be stricken out or changed. But I apprehend the defects in the formal judgment as a disposition, of the rights of the parties cannot be cured by any thing short of a new judgment; and the decision so fails to provide for any means of ascertaining what amount the defendant Burdick is to pay, or what goods he is to deliver, while it adjudges him to deliver the proceeds of all the goods assigned to him, and by him sold, that it cannot be altered so as to conform to the views already expressed as to such defendant’s liability. The question of costs cannot well be disposed of before- the relief to be granted is determined. I do not see any escape from the dilemma, except by subjecting the parties to a new trial, by a reversal of the judgment.

As this view of the case disposes of it, it is unnecessary, as it might be improper, to express any impression as to the question of fact in regard to the fraud in the transfers and confession'of judgment to the defendant Burdick, particularly as the learned judge before whom the cause was tried gave no reasons therefor in his opinion. It may not be improper, however, to suggest that this being an equitable action, this court has no equitable jurisdiction to vacate such judgments, although it may enjoin the defendants from availing themselves of them as against the plaintiffs.

The judgment should therefore he reversed, and a new trial had, with costs to abide the event.