text:
    GEORGE C. WINCHESTER, Respondent, v. T. QUINCY BROWN, Appellant.

      When a motion may be renewed, after a decision has been made by the same court denying a former one for the same relief.

    On April 30, 1887, upon affidavits tending to establish the fact that the plaintiff was a resident of the State of Massachusetts, an order was made directing him, within twenty days after the service of a copy thereof, tó pay into court the sum of $350, or file with the clerk an undertaking, to be executed pursuant to the provision of the Code, in the sum of not exceeding $1,000, as security for defendant’s costs. On June 33, 1887, a motion made by the plaintiff, who had neither deposited the money nor given the undertaking, to vacate this order was denied. Another order was made, on July 3, 1887, denying a motion made by the plaintiff for an extension of the time within which the security might be filed.
    Thereafter a motion was made by the defendant to dismiss the plaintiff’s compaint because of his failure to furnish security, upon the hearing of which affidavits were read by the plaintiff tending to substantiate the justice of the claim, and by the defendant tending to show that the action was without merit. It was also shown that, on July 38, 1887, an undertaking had been filed in the form prescribed by the court.
    Wherepon an order was made directing that the complaint be dismissed, unless within five days after the service of a copy thereof the plaintiff should pay to the defendant’s attorneys thirty dollars for the costs of the several motions which had previously been decided against him and unless the sureties to the proposed undertaking should justify, if excepted to, or new sureties should be provided.
    Upon an appeal by the defendant from this order:

      Beld, that while, in ordinary cases, the decision of a motion will prevent its repetition or rehearing by the court making the order, or any other tribunal in like manner constituted, yet as in this case none of the preceding orders had, in any form, directed or provided for the dismissal of the complaint, and to obtain that end an additional motion on behalf of the defendant became a necessity, the court still had the right to look into all the facts, as they were disclosed by the complaint and the affidavits, in order to arrive at a jtist disposition of the motion.

      Riggs v. Pursell (74 N. Y., 370); Easton v. Pickersgill (75 id., 599) and Veeder v. Baker (83 id., 156) followed.
    That, as the plaintiff was not the moving party, but the motion was made by the defendant, it could be answered by showing a state of facts rendering it inequitable to dismiss the plaintiff's complaint.
    Appeal from an order entered in the office of the cleric of the city and county of New Torlc, on December 22, 188 Y, directing the dismissal of the plaintiff’s complaint, unless certain conditions mentioned in the order were complied with by him.

      Henry Schmitt, for the appellant.

      A. Walker Otis, for the respondent.
   Daniels, J.:

On the 30th of April, 188Y, an order was made, on notice, directing the plaintiff in this action, within twenty days after service of a copy thereof, to pay into court the sum of $250, or file with the clerk an undertaking to be executed pursuant to the provisions of the Code, in a sum not exceeding $1,000, as security for the defendant’s costs in the action. This order was made upon affidavits tending to establish the fact'that the plaintiff was a resident of the State of Massachusetts. Neither the money was deposited nor the undertaking given. And, on the part of the plaintiff, a motion was afterwards made to vacate the order requiring this security. This motion was denied on the 22d of June, 188Y. And on the twenty-seventh of the same month motion papers were served for a motion extending the time within which the security might be provided. This was heard on the 2d of July, 188Y, and the motion was denied. A motion was also noticed, on behalf of the defendant, to dismiss the complaint, because of the failure of the plaintiff to furnish this security. And by way of resisting the motion, the complaint in the action, together with affidavits directly tending to substantiate the justice of the plaintiff’s claim, were read upon the hearing. And so were affidavits produced on behalf of the defendant, tending to maintain tlie conclusion that the action was without merit. It was also shown that, on the 28th of July, 1887, an undertaking hdd been obtained in the form prescribed by the Code, for the security of the defendant’s costs, not exceeding in amount the sum of $1,000. And the court, considering that to be a just disposition of the motion, directed the complaint to be dismissed, unless within five days after the service of a copy of the order the plaintiff should pay to the defendant’s attorneys thirty dollars for the costs of the several motions which had previously been decided against him, and the surety in the proposed undertaking should justify, if excepted to, or new sureties should be provided, as that has been permitted by the Code. And it is from the liberty in this manner given to the plaintiff still to file security, and to protect himself by doing so, from the dismissal of his complaint, that the defendant has appealed. And the appeal, it is urged, should be supported because of the effect which these - preceding orders had in the way of determining the controverted questions included in the motions.

It is no doubt the law that in ordinary cases the decision of a motion will prevent its repetition or rehearing by the court making the order, or any other tribunal in like manner constituted. That was decided in Jay v. De Groot (2 Hun, 205), and afterwards so far followed in Tunstall v. Winton (31 Hun, 219). And if the court before which the final motion was made and decided had applied this principle to the disposition of the ease, the plaintiff would probably have been concluded by the' decision made in that manner.

But it was not bound to do so, for neither one of the preceding orders had in any form directed or provided for the dismissal of the complaint. To obtain that end an additional motion on behalf of the defendant became a necessity. And when that was heard the court still had the right to look into all the facts as they were disclosed by the complaint and the affidavits, for the just disposition-of the motion. They had ujdou no preceding occasion been so generally or broadly brought to the attention of the court. And as the complaint could only be dismissed by a further order to be made, it could still be considered whether in justice • the defendant was entitled to that order. That subject had in no way been decided by either of the other orders. And it has been held that preceding orders may be reconsidered under circumstances of the nature of those brought to the attention of the court. (Riggs v. Pursell, 74 N. Y., 370.) There it was said, in the opinion of the court, that Where additional facts are presented, or defects in proofs supplied, it is quite usual to grant leave to renew a motion which has been denied or to rehear one which has been granted.” And “ the rule requiring leave to be obtained before renewing a motion is one of practice merely to avoid confusion and abuses, but does not affect the power of the court to reconsider its decision on a motion upon additional facts. In this respect such decisions and- orders differ essentially from judgments in actions or special proceedings.” (Id. 379.) And that an order is not controlling as a judgment would be was also held in Easton v. Pickersgill (75 N. Y., 599), and Feeder v. Baker (83 id. 156).

If the plaintiff had been the moving party, the application then, regularly, would be for leave to file the undertaking -which had been prepared, or for a reconsideration of the preceding motion. But as he was not the moving party, but the motion was made by the defendant, it could be answered by showing a state of facts rendering it inequitable to dismiss the complaint of the plaintiffs. And it'was stated, as a fact, that in case of a dismissal of the complaint, a further action in his behalf would be avoided by the statute of limitations. That has been denied, however, on behalf of the defendant, who may be technically right. As to this disputed effect of the statute, it will not become necessary to decide, for it may be inferred, as the defendant is a resident of the State of Massachu setts, if the complaint should be dismissed, he may not again be dismiss his complaint. It may be without legal merit, but that can served with a summons in this State; and if the plaintiff is bound to resort to a new action in the State of Massachusetts, there the statute may be a defense. In'either view it would be perilous to the plaintiff to only be tried and determined upon the evidence if a trial of the action shall take place.

As a matter of fact, it was settled that the plaintiff had been enfeebled in his health by the transactions set forth as the ground of the actions, and had not been able to obtain the security required. But to save his action he had at last obtained the security, and on this, as well as other facts detailed in the affidavits, the court considered it to be just not to dismiss the plaintiff’s complaint without affording him one more opportunity of complying with the preceding orders, by filing security for costs ; and that the court still had the power to do, as a condition on which the plaintiff’s motion should be allowed to prove successful.

The order should, therefore, be affirmed, with ten dollars costs and the disbursements', and the plaintiff allowed, within five days after notice of this decision, to comply with the order.

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

Order affirmed, with ten dollars costs and disbursements, and plaintiff allowed, within five days after notice of this decision, to comply with the order.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    ALFRED A. LISCOMB, Respondent, v. SARAH KATHARINE AGATE and Others, as Executors and Trustees, etc., of FREDERICK K. AGATE, Deceased, Appellants.

      Bill of particulars showing items of a counter-claim for alleged illegal commissions taken by plaintiff on ao'tiales purchased for his principal.

    In an action, brought to recover for -wages alleged to have been earned by tlie plaintiff, and for expenses incurred by him in the management of an apartment-house, the defendants alleged in their answer that the plaintiff had been accustomed, while so employed, “to exact and receive various percentages and commissions upon the purchase of supplies for the said apartment-house, without the knowledge and in violation of the duty which he owed to his employers, and demanded that he render an account thereof.’

      Held, that a motion that the defendants furnish a bill of particulars, giving the amounts of such commissions, the dates of their payment, and the names of the various persons from whom they were received, was properly granted.

      Dwight v. Germania Life Insurance Company (84 N. Y., 493) followed.
    Appeal by the defendants from an order entered in the New York county clerk’s office on September 27,1888, granting a motion for a bill of particulars of certain matters set forth by way of counter-claim in the answer herein, and requiring the defendants to furnish and serve upon the plaintiff’s attorneys a bill of particulars of the counter-claim set up in article 8 of the answer, showing the names of the persons from whom certain commissions were exacted by the plaintiff, the amount of such commissions, and the date of the payments thereof, within ten days after the entry and service of the order, with the privilege to the defendants to serve an additional bill of particulars at any time, but at least eight days before the trial of this action.

      George P. Gordell, for the appellants.

      Donohue, Newcombe & Oardozo, for the respondent.
   Brady, J.:

This action was brought to recover wages for March and April, 1888, alleged to have been earned by the plaintiff, and for expenses alleged to have been incurred by him in the management of an apartment-house as superintendent thereof.

The defendants set up in their answer, among other things, the plaintiff’s neglect to account for the rent of the two months immediately preceding the testator’s death, and also, that while in the employment of said Frederick 1£. Agate, as superintendent of the apartment-house, and so long as he continued to act as superintendent after the death of Frederick ÜST. Agate,” the plaintiff “ was accustomed to exact and to receive -various percentages and commissions upon the purchase of supplies for said apartment-house, without the knowledge of said Frederick K. Agate, or of these defendants, and in violation of the duty which he owed to his employer.”

The answer prays “ that the plaintiff be required to render an account showing his receipts and disbursements on account of said Windsor apartment-house ” for the said two months, and “ also showing all sums received by him as percentages and commissions upon the purchase of supplies for the said Windsor apartment-house, -x- -x- -x- an(i that these defendants have judgment against the plaintiff upon any balance due to them upon said account.” "x" * "x" The learned justice, by whom the motion was granted, said that the main objection urged against the furnishing a bill of particulars was, that the defendants could not give the amounts and names of the various persons from whom the commissions were received, but only some of them, and hence, no doubt, the provision of the order requiring a bill of particulars to be served, but without prejudice to the right of the defendants to serve an additional bill at any time, but not less than eight days before the trial. The object was to enable them to enlarge the defense as the knowledge of its details occurred to them or resulted from information or investigation. Whatever may have been the practice prior to the decision of Tilton v. Beecher (59 N. Y., 176), and whatever might have been the views of the profession with regard to the question prior to that time it is now settled that the bill of particulars is not confined to actions for demands for money but extends to all descriptions of actions, when justice demands that a party shall be apprised of the matter for which he is to be put on trial with more particularity than is required by the rules of pleading, bior is this'power confined to an exercise of it in behalf of a defendant in an action. In favor of the plaintiff, as well, the court may order the defendant to give the particulars of the facts which he expects to prove. Thus, on a plea of fraud and consequent repudiation by the defendant, he has been compelled to give particulars of the acts of fraud and repudiation, and the power has been exercised even in a criminal case in favor of the commonwealth and against the prisoner. The power to compel this is incident to the general authority of the court in the administration of justice. It is the same power, in kind, that courts have to grant a new trial on the ground of surprise. The latter is remedial and curative. The former is preventative. But both have the same purpose — to reach exact justice between the jiarties, by learning just what is the truth, and to learn what is the truth by giving to each party all reasonable opportunity to produce his own proofs, and to meet and sift those of his adversary Section 531 of the Code provides that the court may, in any case, direct a bill of particulars to be delivered to the adverse party. (Dwight et al. v. Germania Life Ins. Co., 84 N. Y., 493.) And this rule seems to be particularly applicable where, as in this case, the defendant seeks affirmative relief.

The real purpose of ordering a bill of particulars is to reach justice between the parties by evolving the truth from their discordant statements, and to give the parties every reasonable facility for coming to the trial fully prepared for all that may be produced by the other side. This is just as important whether the matter is set up as a bare defense or as a basis for a demand for affirmative relief. (Dwight v. Germania Life Ins. Co., supra.) It is unnecessary to say, in addition to this, that when affirmative relief is sought by the defendant he becomes, as to such relief, an actor or plaintiff; and, as such, changes his relation to the plaintiff. The principles enunciated by the case last cited cover the question involved herein, and show the propriety and the justice of requiring the defendants to state the instances of fraud practiced by the plaintiff, to which they refer. and which should not have been made, except upon reliable information as to their occurrence. For these reasons the order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Macomber, J., concurred in the result.

Order affirmed, with ten dollars costs and disbursements.


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    HERMANN MEYER, Plaintiff, v. WILLIAM C. BOYD, Defendant.

      Contract of sale — variance between, the description in the contract and, the actual occupation, owing to a surplus in the block of land as originally mapped—curedby acquiescence, and a distribution of the surplus a/mong the several lot owners.

      ■ In an action, "brought to recover damages arising out of the alleged failure of the defendant to perform a contract for the sale of land on the south side of Eighty-first street, in the city of New York, described in the contract as beginning 125 feet easterly from the southerly corner of Third avenue and Eighty-first street, and having twenty-five feet frontage on said street, it appeared upon the trial that by actual survey the lot commenced 127 feet and one inch from said corner; that this disparity arose from the fact that upon the original map of the block of land in which this lot was situated the block was marked as being 600 feet in length, when, in fact, it was 610 feet; that at different times the owners of the property upon this block, in order to adjust this surplus of ten feet, had directed maps to be made distributing such surplus pro rata over the entire front of the block, which gave a surplus of five inches to every twenty-five feet; that ninety or 100 lots in the block had been laid out on the basis of such distribution, and, at least, seven or eight buildings had been built in accordance therewith; that according to such distribution the lot in question began at a point 127 feet and one inch from the corner.

      Held, that the possession of the lot in question by the defendant from 1868 to 1887; the acquiescence of the adjacent owners on both sides in the location of the lot line, as fixed by the distribution of the surplus feet in the block; and the fact that the defendant in his contract undertook to convey the lot, as it appeared on the original map and as it was conveyed to him, were a sufficient answer to the objection that the lot did not begin at the number of feet from the corner designated in the contract; that the case was not one in which the plaintiff should be relieved from his obligation to perform the contract made by him for its purchase.
    Exceptions ordered to be heard in the first instance at General Term, after a trial at the Hew York Circuit on March 26, 1888.

      Abraham L. Jacobs, for the plaintiff.

      Benjamin F. Kissam, for the defendant.
   Brady, J.:

This action was brought to recover the sum of $1,770, and interest, for the alleged failure of the defendant to perform his part of a contract for the sale and jiurchase of a lot of land on the south side of Eighty-first street in this city. The contract between the parties was dated the 12th of March, 1887. • The controversy arises from the asserted incompetency of the defendant to convey the premises as described in the contract. The lot in that instrument is said to be one on the southerly side of Eighty-first street, begining 125 feet easterly from the southerly corner of Third avenue and Eighty-first street, and having twenty-five feet front and rear by 100 feet three inches in depth on each side, be the said se.veral distances and dimensions more or less. And, further, being the same premises conveyed to the party of the first part (that is the defendant), by Peter Wooley and wife by deed dated April 1, 1868, and duly recorded. The deed to the defendant thus mentioned in the agreement between the parties to this action conveys a lot in the nineteenth ward of this city, which was part of the Harlem commons, and known on a map of them made by Charles Clinton, surveyor of the city of Hew York, as number thirty-four, and bounded and described as commencing at a point on the southerly side of Eighty-first street, distant 125 feet easterly from the southerly comer of Third avenue and Eighty-first street, etc., “ be the said distances more or less.” It appeared upon the trial, from an actual survey, that the lot commences 127 feet one inch from the southerly corner of Third avenue and Eighty-first street, and not 125 feet; but this disparity seems to have arisen from the fact that upon the Clinton map the block was marked as 600 feet in length, when, in fact, it was 610 feet on the linos of the streets. It further appears that the first map of the Harlem commons was made by Charles Clinton in December, 1824, and that from December, 1829, down to December, 1861, the descriptions in the several conveyances relating to this particular locality were by the block numbers on the Clinton map, and one conveyance in 1848, of lot number thirty-four in addition to this map number,'is described as twenty-five feet in front and rear, and 100 feet deep. In October, 1866, a conveyance was made of the lot in dispute, describing it as number thirty-four on the map already mentioned, and as beginning 125 feet from the Third avenue, with other distances (“be the said distances more or less”). In 1868 the conveyance of lot number thirty-four was made to the defendant by the same description, and in making the 'contract with the plaintiff it was expressly stated, and, therefore, expressly understood, that the premises purchased by the plaintiff were those thus conveyed to the defendant. There is no dispute as to the performance by the defendant of the contract in all other respects, than the one particularly named.

It further appears that the defendant occupied the lot known as Ho. 34 on the Clinton map as it exists, namely, 121 feet and one inch distant from the Third avenue, from April 1, 1868, to the day of the trial; and that prior to Hovember 11, 1811, a brick wall had been erected on the lot adjacent on the west, running about eighty-two feet nine inches in depth from the southerly line of Eighty-first street, and distant 127 feet one inch from the Third avenue. It also appears that Mr. Ewen, who is a surveyor of many years’ experience, for a long time familiar with the Harlem commons, had frequently made surveys of them, and had examined the map called the Clinton map, and knew of the.error suggested about the length of the block on Eighty-first street; and, further, that at different times the owners, to adjust the surplus of ten feet in the length of the block, had directed him to locate them by making a distribution of them fro rata over the entire front of the block, which gave a surplus of five inches to every twenty-five feet. He had surveyed, it appears, ninety or a hundred lots on that block on the basis of that distribution, and lie testified that quite a number, at least seven or eight, buildings on that block had begn built on that basis, making, as he said, the distribution come correct, between two and three feet of the ten being distributed; ” that his knowledge in regard to the buildings on the property began twenty years ago as a surveyor in that immediate neighborhood ; and that from that time down to the present, buildings had been located as he stated, and five inches divided to every twenty-five foot lot within the bounds of the Harlem commons and Second and Third avenues; and he further said that lot Ho. 34 had its exact location according to the distribution which was adopted. The evidence, it is true, relating to the appropriation of the ten feet over the entire front stated, was objected to, but it clearly related to the question of locality and, therefore, of title, and was admissible, if for no other reason than to show possession and acquiescence, not only of the defendant, but others on the corrected length of the block. 'It further appears that the adjacent lot to the one in question on the west, in a deed dated December 30, 1882, is described as beginning 101 feet eight inches from the Third avenue, running thence easterly twenty-five feet and five inches along Eighty-first street, thus making 127 feet one inch to the lot in question; and, further, that the lot adjacent to the one in question on the east, in a deed dated April 28, 1887, is described as beginning 152 feet six inches from the Third avenue, which is the easterly line of the lot in question.

This array of facts seems to remove all doubt about the locality of the lot which the defendant intended to convey to the plaintiff, and all doubt of the defendant’s title to it. Adjacent owners, as we have seen, have conveyed their property upon the distance of the defendant’s lot from the Third avenue, being 127 feet one inch, and this acquiescence is strengthened by the erection, on the westerly side, of a brick wall upon the same theory. Independently of this monument, however, created by the building of the wall, the possession of the lot by the defendant from 1868, the acquiescence stated of the adjacent owners on both sides of it, the fact that the defendant undertook to convey it as it appeared on-the Clinton map, and as it was conveyed to him, as we have seen, by the terms of his contract with the plaintiff, and the absence of any dispute about it, the objection interposed is not meritorious but technical. There is no pretense that the plaintiff could not acquire the title to the lot with the dimensions Dy which it was described, or that in any way he had been deprived of the area which those dimensions would import. There can be no pretense that he would be subjected to any interference on the part of the adjacent owners, one of them having built a wall and the other having conveyed his property, as already suggested, upon the understanding that the plaintiff’s lot was, in fact, 127 feet one inch distance from the Third avenue. In addition to this, the evidence shows that there existed a necessity for this change in consequence of and to correct the error that was made as to the length of the block. It was clearly the intention, it must be said, of all the grantors ,including the defendant, to convey the lot No. 34, as it appeared on the Clinton map, by the actual measurements approaching it, and this intention’ should govern. This is the rule. (French v. Carhart, 1 Comst., 96; White v. Williams, 48 N. Y., 344.) And where there is a doubt about the location, it is to be ascertained and determined by all the facts in the case. (Townsend v. Hayt, 51 N. Y., 656.) And in Wendell v. The People (8 Wend., 183), it is said that in the construction of grants, both courses and distance must give way to the natural or artificial monuments or objects; and courses must be varied and distances lengthened or shortened so as to conform to the natural or ascertained objects or bounds called for by the grant. See, also, White v. Williams (supra), where that case is cited and approved and its doctrine applied. There is no reason why the error made in the Clinton map as to distance should prevail and be allowed to affect the title of the defendant and others under the facts and circumstances disclosed. Each owner is protected by the readjustment which controls and overcomes the original error, and subjects it to natural distances and establishes monuments. This is, therefore, not a case in which the doctrine of a doubtful title should be applied to relieve a purchaser from his obligation to complete. There is really no doubt whatever about the title of the defendant to the lot of land known as No. 34 on the Clhiton map, and in his possession; nor is there any doubt that he could convey it as provided in the contract of sale between himself and the plaintiff. For these reasons, in addition to those already assigned, it seems to be imperative noon the court to direct judgment for the defendant, sustaining the exceptions and rendering a new trial, with costs to abide the final event.

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

Judgment for the defendant sustaining the exceptions and ordering a new trial, with costs to abide the final event.


text:
    ADDISON THOMPSON, as Assignee of the LA BELLE GLASS COMPANY Insolvent, Plaintiff, v. GEORGE W. FRY, Defendant.

      Assignment for creditors — a creditor taking advantage of its provisions cannot repudiate it—foreign bankruptcy proceedings—attachment by a domestic creditor.

    A creditor, who has availed himself, in any mode, of an assignment made by his debtor, or of the benefits to be derived therefrom, for example, by delivering proof of his claim to the assignee, bars himself from taking any action to defeat-the purpose of the assignment as a transfer of the property of the assignor.
    The doctrine, that the title acquired under a foreign bankrupt or insolvent proceeding shall not prevail over the lien of a creditor, issuing an attachment under the laws of this State and securing a levy thereunder upon property herein, docs not apply to the case where there has been a voluntary transfer of the debtor’s property to an assignee for the benefit of creditors.
    Case agreed upon and submitted under the provisions of sections 1279, etc., of the Code of Civil Procedure.

      Douglass & Minton, for the plaintiff.

      William H. Sloan for the defendant.
   Brady, J.:

The La Belle Glass Company was a corporation created under the laws of Ohio, having its office and immediate place of business at Bridgeport, Belmont county, in that State. The company sold goods upon credit to various persons and firms doing business in the city of New York, and while these persons were indebted to it the company made a voluntary general assignment of all its property to the plaintiff, in trust, to proceed according to the statutes of Ohio applicable thereto, in the collection and distribution of the corpus of the trust. The defendant was and still is a resident of Pennsylvania, having in this city, however, a place for the transaction of business in person. He received notice of the assignment, and, on or about April eleventh, made an affidavit, with a proof of his claim as a creditor of the company, and delivered it to the assignee. He subsequently, and on or about the 21st of April, 1888, brought an action against the company upon a claim in the City Court of this city, and obtained a warrant of attachment against the property of the company, which was duly issued to the sheriff of this county and by him was duly served upon each of the debtors of the company and a levy made upon the several claims assigned.

It also appears that the defendant obtained judgment against the company, issued an execution against the attached property, and that the judgment remains unsatisfied. The controversy between the parties is as to whether, at the time of the levy of the attacli-ment upon the claims mentioned, they had been effectually transferred to the plaintiff, and were, therefore, not subject to levy undey the attachment. Whatever may be the legal status of the other creditors who have not availed themselves in any mode of the assignment or the benefits to be derived therefrom, the defendant by delivering proof of his claim to the assignee has, in law, accepted the instrument and barred himself from disputing the validity of it, or from talcing any action for defeating its purpose as a transfer of all the property of the assignor. (Cavanagh v. Morrow, 67 How. Pr., 241; Rapalee v. Stewart, 27 N. Y., 311.) And this, perhaps, is a sufficient answer to Ms asserted claim, but it is not necessary to rest his defeat wholly upon that doctrine. The case of Kelly v. Crapo (45 N. Y., 86) declares, it is true, the doctrine that a title acquired under a foreign banknxpt or insolvent proceeding shall not prevail over the 'lien of a creditor attaching under our own laws property found here, but it nevertheless recognizes the rule that a voluntary conveyance, valid under the laws of the State where the owner resides, shall operate to transfer personal property wherever situate. The same principle is enunciated in Story in his Conflict of Laws, section 398' and following sections, a position sustained by many cited cases. (Kelstadt and others v. Bernard Reilly, 55 How. Pr., 373.) The assignment having transferred tlie claims to which reference has been made, the other question presents itself, namely, is the plaintiff’s title one acquired under foreign bankrupt or insolvent proceedings, and the answer in the negative is found in the decision in the case of Mayer v. Hellman (1 Otto, 496), in which the Supreme Court of the United States said of the statutes of the State of Ohio, in reference to instruments similar to that under consideration herein : “ There is nothing in the act resembling an insolvent law. It does not discharge the insolvent from arrest or imprisonment; it leaves his after-acquired property liable to his creditors precisely as though no assignment had been made.”

In this case, therefore, as in the case of Kelstadt v. Reilly (supra), as said by Justice Van Brunt, in deciding that case: “It follows, therefore, that the assignment, under which the plaintiffs claim, not having been made under an insolvent law of the State of Ohio, transferred all the property belonging to the assignor in this State, and gave to the plaintiffs a title superior to that of any subsequent attaching creditor.”

For these reasons the plaintiff is entitled to judgment as agreed upon..

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

Judgment for plaintiff.


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

text:
    FRANCIS A. WINSLOW, Appellant, v. THE STATEN ISLAND RAPID TRANSIT RAILROAD COMPANY, Respondent.

      Section 431 of the Code of Oivil Procedure does not authorize the service of a summons upon an assistant treasurer of a domestic corporation — nor is a clerk, acting as-assistant treasurer, a managing agent of the company.

    Upon an appeal from an order setting aside tlie service of a summons, it appeared that the summons was attempted to be served by the delivery of a copy thereof to one Edward Curry, who was the assistant treasurer of the defendant, a domestic corporation, which attempted service was made at the office of tlie defendant, in the city of New York.

      Held, that the fact that the treasurer was a non-resident and occupied another office, and there performed the duties of treasurer, did not authorize the service upon the assistant treasurer so as to bind the corporation, as an assistant treasurer was not designated, in section 481 of the Code of Civil Procedure, as one of the persons upon whom such service could be made. (Macomber, J., dissenting.)
    It was also sought to sustain the service upon Curry by showing that he was a managing agent of the corporation.

      Held, that such claim could not be sustained, as while the proof showed that Curry was engaged in and about the business of the corporation, and that, in addition to his ordinary duties as clerk of the corporation, he was in the habit, as assistant, treasurer, of drawing checks, payable to the order of another clerk of the corporation, yet there was no evidence whatever that he had any part in the management of the business of the corporation, or that he exercised any authority as a managing agent. (Macomber, J., dissenting upon the ground that the service-was well made upon him as a clerk.)

      Palmer v. Pennsylvania Co. (35 Hun, 369; affirmed, 99 N. Y., 679) distinguished.
    Where a statute prescribes that jurisdiction is to be obtained in a particular way, the requirements of the statute must be complied with or jurisdiction will not be acquired.
    Appeal from an order made at Special Term and entered in the office of the clerk of the city and county of New York, on October 15, 1888, setting aside the service of the summons herein.

      John A. Amundson, for the appellant.

      Macfarland, Boardman & Platt, for the respondent.
   Van Brunt, P. J.:

The summons in this case was attempted to be served by delivery of a copy thereof to one Edward Ourry, at the office of the defendant in the city of New York. The proof seems to indicate that the person served was the assistant treasurer of the defendant, although, at the time of the service, when asked by the deputy sheriff, he said he was the treasurer of the corporation. According to section 431 of the Code, personal service of a summons upon a defendant being a domestic corporation must be made by delivering a copy thereof within the State, to the president or other head of the corporation, to the secretary or clerk of the corporation, or to the cashier, treasurer, director or managing agent. The service of the summons was set aside upon the-ground that Ourry occupied neither of those positions. It is urged, in the first place, upon this appeal, that, as the treasurer was a nonresident, therefore, the assistant treasurer was the person named, or intended to be named, in the statute; and, if Ourry was not an assistant treasurer, then he came under the definition of a managing agent, and service upon him, therefore, conferred jurisdiction. The fact that the person served was not the treasurer, seems to be clearly established; and the fact that he occupied another office and performed the duties of treasurer, perhaps, did not authorize the service upon him so as to bind the corporation, as the assistant treasurer is not designated in the Code as one of the persons upon whom such service shall be made. It is sought, also, to sustain the service, by showing that Curry was a managing-agent of the corporation. In this, we think, the proof wholly fails. It is true that Curry, was engaged in and about the business of the corporation, and that, in addition to his ordinary duties as clerk to the corporation, he was in the habit, as' assistant treasurer, of drawing checks payable to the order of another clerk of the corporation. But there is no evidence, whatever, that he had any part in .the management of the business of the corporation, or that he exercised any authority as a managing agent.

Numerous cases have been cited upon the part of the appellant to sustain the proposition .that he was at least' a managing, agent ; and our attention is particularly called to the case of Palmer v. Pennsylvania Company (35 Hun, 369 ; affirmed in 99 N. Y., 679.) But the facts of that case differ very materially from those in the case at bar. The person served in that case was an agent of the company. He managed a certain part of the business of the corporation, and, as such, had authority to act for the corporation. In the case at bar there is no evidence that Curry had any such authority, or that the duties which he performed were anything more than of a clerical character. It is true that language has been used in some of these cases to the effect that the object of all service of process for the commencement of a suit or other legal proceeding is to give notice to the party- proceeded against, and any service which reasonably accomplishes that end answers the requirements of natural justice and fundamental law. But where the statute jn-escribes that jurisdiction is to be obtained in a particular way, then the requirements of the statute must be complied with or jurisdiction cannot be acquired. If there are any hardships under the law, it is not for the courts to amend the statute, because that is a duty which is imposed upon the legislature.

Th.e order appealed from must be affirmed, with ten dollars costs and disbursements.

Beady, J., concurred.

Macomber, J.

(dissenting):

Edward Curry, who was the person upon whom the summons and complaint in this action were served, is shown to be what is called the “ assistant treasurer ” of the defendant. The person who was elected treasurer is not and never was a resident of this State, but of Maryland; and he was not, by virtue of his office, charged with any special duty or function other than that of the treasurer of the system of railroads known as the Baltimore and Ohio, of which the defendant forms a small portion. Under the by-laws of the defendant, it is true, there is no provision made for the appointment of any person as u assistant treasurer,” yet Mr. Curry was, in fact, and to all intents and purposes the treasurer of the defendant. Under section 431 of the Code of Civil Procedure it matters not what the title of the officer of a domestic corporation may be so long as he discharges the function of the office contemplated by that section. A service upon the president, or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treasurer or a director or managing agent is a service upon the corporation itself. It is no answer to the regularity of the service in this instance, to say that Mr. Curry was not elected or chosen by the corporation as its treasurer; performing all of the duties pertaining to the treasury department of this corporation, he must be deemed to be the treasurer within the intent and meaning of this section. But even if this were not so, the word “ clerk ” is, in my judgment, the proper name, as used in this statute, to describe the person upon whom this service was made. He was nof performing merely clerical duties in subordination to any other officer of the corporation, but was a “ clerk to the corporation,” that is to say, he was performing for the defendant, duties distinctively in its behalf and not in behalf of any officer of the corporation. ■ For these reasons, I think, the order should be reversed.

Order affirmed, with ten dollars costs and disbursements.


author: Van Brunt, P. J.

text:
    THE WATTS-CAMPBELL COMPANY, Respondent, v. DAVID G. YUENGLING, Jr., and Others, Appellants.

      When a contractor, erecting an engine and gas compressor in a brewery, may file a lien under chapter 324 of 1885 —■ the work is not completed until the constructing engineer of the contractor ceases his test of the working of the engine.

    Dpon an appeal from a judgment sustaining a mechanic's lien, filed to secure payment for certain machinery, under chapter 842 of 1885, it appeared that the machinery in question, consisting of an engine and gas compressor, was constructed for a brewery owned by the defendant Yuengling, and that it was placed in the said building- as part and parcel of the machinery by which the brewery was to he operated. The machinery was intended by the defendant at the time the contract was made to become part and parcel of the brewery, although it was proved that portions of the machinery could he removed by the unscrewing of bolts and the taking off of nuts.

      .Held, that as machinery was necessary for the profitable carrying on of the business for which the buildings were erected, that it came within the provisions of the mechanic's lien law, and constituted the altering and repairing of a portion of the appurtenances to the brewery building-.
    The actual erection of the machinery was completed on ór about the thirteenth of June when the engine was started, hut the plaintiff’s constructing engineer, who had charge of the work, continued thereafter to make alterations therein, by keying it up, and did his last work June twenty-first when the machinery worked to his satisfaction, and on June twenty-third, after running the machine for two days longer and being satisfied that it worked entirely well, he asked the defendant Yuengling to accept the engine, whereupon the defendant Yuengling gave him a note to that effect.

      Held, that as the lien was filed on September seventeenth, eighty-eight days subsequent to the time when the constructing engineer ceased to work upon the engine, an objection that the lien was not filed within ninety days after the completion of the work or the final furnishing of the material was not well taken.
    Appeal from a judgment of the New York Special Term, entered in the office of the clerk of the city and county of New York on July 18, 1888, sustaining a mechanic’s lien, filed under the Laws of 1885, under a contract entered into between the plaintiff and the defendant D. 0. Yuengling, Jr., to build and erect at the latter’s brewery an engine and gas compressor.

      J. Untermyer, for the appellants.

      W. P. Williams, for the respondent.
   Van Brunt, P. J.

The grounds upon "which this appeal seems to be based are these: First. That the machinery in question which was furnished to the building against which a lien is sought to be obtained, is not the subject of a lien, in that the putting in of machinery in a building is not, within the words of the Laws of 1885, erecting, altering or repairing a building, but it is the erecting of machinery in a building which is not, under the terms or within the spirit of the act itself, the subject of a lien. Second. That it appears from the laws of New Jersey and from the certificate of incorporation of the plaintiff that it had no power to contract outside of the State of .New Jersey, and, therefore, the contract in question being made outside of the State, was beyond its power. Third. That it does not appear that the notice of lien in this case was filed within ninety days after the completion of the work or the final furnishing of material as required by the mechanic’s lien law. The second objection, namely, that the'plaintiff acted ultra vires in the making of the contract for the furnishing of this machinery seems to be disposed of by the Court of Appeals in the case of the Whitney Arms Company v. Barlow (63 N. Y., 62), in which it is held that the plea of ultra vires is no defense to an action based on a contract obligation when the contract on behalf of the corporation has been executed in good faith and the defendant has reaped the benefit of the performance.

The first objection, that the character of the Work done was not such as is contemplated by the mechanics’ lien law, is entitled to more consideration. But an examination of the evidence shows that the jrroperty upon which this machinery was placed was a brewery; that it was constructed for a brewery, and that this machinery was placed in said building as part and parcel of the machinery by which the brewery was to be operated. It is true that portions of the machinery could be removed by the unscrewing of bolts and the taking off <5f nuts; but it is apparent that this machinery was placed ujmn these premises with the intention that it should become part and 2>arcel of the brewery, and should be annexed thereto. It would hardly be claimed that had a purchaser taken a deed of this bewery, or contracted for the purchase thereof, that the grantors could have removed this machinery from the building and claimed a specific performance of the purchase. It is precisely similar to a case where machinery has been erected in a grist-mill, which becomes part and parcel of the building itself, because the building is.to be devoted to the purposes for which the machinery is to be used, and neither one is complete in the absence of the other. So, in reference to this brewery, the machinery in question was part of the machinery which was used in the manufacture of beer. It is true that other means might have been resorted to for obtaining the results which were to be obtained by this machinery; but without some means, such as this machinery supplied, it was impossible to carry on the business for which the building was constructed. Indeed, it seems to be largely a question of intention as to whether machinery placed in a building is to be considered as attached to the freehold or not. There are numerous cases where the controversy has arisen between landlord and tenant, in which the principle has been laid down that fixtures erected by a tenant in a building, for the convenience of his trade, may be removed by him at any time during his term; and this conclusion is arrived at upon the principle that they were necessary for the carrying on of his trade, and that, as he was not the owner of the fee, there was no presumption that he intended to make them part thereof; so it was held, as early as the case of Holmes v. Tremper (20 Johns., 29), that a cider-mill and press, erected by a tenant at his own expense and for his own use, though affixed to the soil, are his own property and removable by him at the end of the term.

But an entirely different rule prevails in a case where fixtures are attached by a person to his own property for the purpose of enabling him to carry on the business for which the buildings thereon were erected Thus, in the House Case (10 Paige, 158), it was held that the wheels and mill-stones forming parts of a grist-mill, being not only convenient but essential to the proper enjoyment'of the inheritance passed to the heir as part and parcel thereof. So, also, in the case of Buckley v. Buckley (11 Barb., 43) it was held the fixtures connected with a cotton factory, dams, water-wheels and gearing machinery, were fixtures as between the heir and executor. And in Gardner v. Finley (19 Barb., 317), where a mortgagor, after executing a mortgage on his mill, puts machinery and other fixtures therein, the purchaser of the premises at a foreclosure sale was held to have acquired title to the fixtures as being part of the real estate.

It will thus be seen that the question as to whether machinery supplied to a building becomes part and parcel of the building and affixed to the freehold, depends largely upon the question of intention, and this intention is largely to be gathered from the circumstances surrounding the person putting in the machinery, as where such machinery is provided by a tenant for the purpose of carrying on his business, the presumption is that he did not intend to attach it to the freehold, but to remove it during his term. On the other hand, where the owner of the fee puts into buildings, machinery necessary for the prosecution of the business for which the buildings were erected, he is held to have intended that such machinery should become attached to the freehold and be part .and parcel thereof. Applying this rule to the case at bar, it is plain that the erection of the machinery forming the subject-matter of this action was intended by the owner of the fee, at the time of making the contract, to become part and parcel of the freehold, as it was necessary for the profitable carrying on of the business for which the buildings were erected. It would seem, therefore, that it came within the provisions of the mechanics’ lien law, as it was the altering and repairing of a portion of the appurtenances to the brewery building.

The last ob j ection, that the lien was not filed within ninety days after the completion of the work or the final furnishing of the material, is based upon the fact that the actual erection of the machinery was completed on or about the thirteenth of June, and the engine was started. The plaintiff’s constructing engineer, however, had charge of the work and was making alterations therein by keying it up, and he did his last work on the twenty-first of June, when the machinery worked to his satisfaction, and on the twenty-third of June, after running the machine two days longer, and being satisfied that it worked entirely well, he asked Mr. Yuengling to accept the engine, and Mr. Yuengling gave him a note to that effect. On the seventeenth of September the lien was filed, eighty-eight days subsequent to the time when the constructing engineer of the plaintiff ceased work upon the engine. It is true that all the machinery had been erected by the plaintiff and the engine started on the thirteenth of June. But it was not considered in a satisfactory condition to be tendered as a completion of the contract until the twenty-first of June, when the last keying up was done by the constructing engineer.

It is evident that, prior to this time, no claim could have been made by the plaintiff for the purchase-price of the engine in question, as the work had not been completed. The intention of the mechanic’s lien law was that the time within which to file a lien should run after the completion of the work. While there was anything to do which it was the duty of the plaintiff to do in reference to this machinery, clearly the work was not completed. This does not seem to have taken place until the twenty-first of June as stated, and hence the lien seems to have been filed in time.

The judgment should be affirmed, with costs.

Brady and Macomber, JJ., concurred.

Judgment affirmed, with costs.


author: Bartlett, J.:

text:
    DENNIS NUGENT, Respondent, v. THE ATLAS STEAMSHIP COMPANY (Limited) Appellant.

      Negligence — defective wi’ticles used by an employee—evidence as to their being furnished by the pan'ty engaging so to do.

    In an action brought to recover damages for the alleged negligence of the defendant, in the execution of a contract for the painting of the defendant’s vessel, which provided that the “ ship ” “was to furnish ropes for the second-tier of staging,” it appeared that the staging was erected by one Wilson, who was furnished with certain ropes for this purpose by the defendant’s agent. These ropes were found not to be sound or fit to be used for such purpose, whereupon the defendant’s agent told Wilson and his companion that they could use all the ropes they could find.
    Wilson then took a rope upon the vessel, known ás a try-sail vang, and used it in the erection of the staging, under the weight of which the rope broke and allowed the staging to fall upon the plaintiff, who was severely injured thereby. The undisputed testimony showed that this try-sail vang was not only unfit to be used for the support of the staging, but that its insufficiency was external and obvious to any one accustomed to the use of ropes.

      Held, that, in the absence of any evidence that an agent of the defendant pointed out this particular piece of rope as a suitable support for the staging, the plaintiff was not entitled to succeed.
    That the statement of the defendant’s agent, that they could use what rope they could find, although it might have been practically a refusal to furnish the ropes, and, therefore, a breach of the defendant’s contract, did not render the defendant liable to the plaintiff for the injury resulting from the use of the improper rope used by the plaintiff.
    Appeal from a judgment, entered June 13, 1887, upon the verdict of a jury at the New York Circuit, for $10,618.42, and from an order denying a motion for a new trial made May 23 1887, on the minutes of the court before which the trial was had.

      Everett P. Wheeler, for the appellant.

      George M. Curtis, for the respondent.
   Bartlett, J.:

The plaintiff was injured by the fall of a scaffold while engaged in painting the .defendant’s steamship, Athos. He was not in the employ of the defendant corporation, but was working for a firm of painters who had entered into a contract to scrape and paint the vessel. That contract provided that the ropes to sustain the second tier of staging should be furnished by the defendant. Its language on this subject was in these words: “ Ship to furnish 'ropes for the second tier of staging.” The staging was erected by one Joseph Wilson with the assistance of from four to six other men, who like himself were employed by the firm of painters. In putting it up he used a rope, known to' sailors as a try-sail vang, which was ordinarily a part of the running rigging belonging to the ship. According to Wilson’s own testimony, a few ropes were brought on deck which were not good or fit to use, and thereupon the defendant’s shore boatswain or rigger, James Squires, told him and his companions that they could use what ropes they could find. They then took the try-sail vang, which proved insufficient to support the second tier of staging with the painters at work upon it, and broke under their weight, thus allowing the staging to fall upon the plaintiff and injure him severely. The undisputed testimony indicated that this try-sail vang was not only unfit to be used for the support of the scaffold, but that its insufficiency was apparent externally and ought to have been obvious to anyone accustomed to the use of ropes, as a rigger or sailor. Wilson seems to have used it, however, without observing its defective condition, although he testified that he was somewhat familiar with ropes, having been to sea for about twenty or twenty-two years.

No attempt was made to show that any agent of the defendant pointed out this particular piece of rope as a suitable support for the staging, but the theory of the plaintiff’s case seems to have been that the painters were led to believe that it was sufficient by the general direction from the shore boatswain to use what • ropes they could find, after they had rejected those which had first been brought on deck.

While no contract relation existed between the defendant corporation and the plaintiff who was injured, the defendant owed him certain obligations arising out of its contract with his employers who had undertaken to paint the ship. In furnishing the ropes for the support of the second tier of staging under the contract, the defendant was bound to exercise reasonable care .to provide ropes which should be free from dangerous defects; and for a failure to exercise this care, the defendant would be liable to a person in the employment of‘the other party to the contract. (Devlin v. Smith, 89 N. Y., 470, 477.) “As a general rule,” says the Court of Appeals, in the case cited, “ the builder of a structure for another party, under a contract with him, or one who sells an article of his own manufacture, is not liable to an action by a third party who uses the same with the consent of the owner or jrurchaser, for injuries resulting from a defect therein, caused by negligence: The liability of the builder or manufacturer for such defects is in general only to the person with whom he contracted. But, notwithstanding this rule, liability to third jDarties has been held to exist when the defect is such as to render the article itself imminently dangerous, and serious injury to any person using it is a natural and probable consequence of its use.” In the jDresent case it was manifest that the use of rotten rojDe as a supjDort for one of the tiers of staging on which the jDainters were to stand would be fraught with danger to those who might be upon it or beneath it. If, therefore, a representative of the defendant had either furnished this jDarticular try-sail vang as a fit and jxroper rope to be used for the jDurpose, to which it was ajDplied, or if he had indicated a lot of rojees of which this was one, as similarly suitable, and, in consequence of such indication, it had subsequently been enrployed by the jDainters, in the manner in which it was employed, we think the defendant would have been liable to the plaintiff in the action, assuming that the defect'in the rojDe was not so apparent as to make it negligence on the part of the painters not to detect its true condition.

But the case made out by the plaintiff is quite different. The painters appear to have refused to use any of the ropes in the lot brought on deck at the instance of the defendant’s shore boatswain, and by him indicated as being suitable and sufficient. Then, according to their account, they were told by the shore boatswain to take what they could find about the deck. In this direction there was no expression of suggestion or indication that any particular rope or set of ropes about the deck was sufficient or proper to be used for the support of the scaffolding in question. It was tantamount to saying to the painters that, inasmuch as they were not satisfied with those ropes which had been shown them in the first place, they might choose for themselves from such others as they could find. It may be said that this was practically a refusal to furnish the ropes at all, and, therefore, a breach of the defendant’s contract; but even if it was, that would not render the defendant liable to this plaintiff. The defendant having utterly failed or refused to furnish any other ropes than those which the painters deemed unsuitable, if they went on to choose and take one for themselves without any assurance as to its suitability from the defendant, the latter cannot be held 'liable because their choice proved unfortunate.

Under the circumstances disclosed by the record in this case, we think the negligence which caused the plaintiff’s injuries was solely that of his fellow servants, and, therefore, that the recovery in his favor against the defendant cannot be sustained. Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Brady and Daniels, JJ., concurred.

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


text:
    WARREN ACKERMAN, Appellant, v. THE COBB LIME COMPANY, Respondent.

      Money had and received—recoverable only when, in view of the amount similarly received by the plaintiff, it is equitably due.

    In an action for money had and received, it appeared that one Brown acted as the common agent of the plaintiff and of the defendant, selling cement on commission for the plaintiff, and lime on commission for the defendant; and that a number of promissory notes, which had been received by Brown in payment for cement which he had sold on behalf of the plaintiff, had been turned over to the defendant to represent the proceeds of sales of lime which he had effected on behalf of that company.
    It also appeared that the plaintiff had received from Brown a considerable sum ' represented by notes given to Brown in payment for lime which he had sold on behalf of the defendant.
    It did not appear whether the plaintiff or the defendant had thus received the larger amount in the form of such notes.

      Held, that the referee properly dismissed the complaint on the ground that the evidence was insufficient to warrant a recovery by the plaintiff.
    Appeal from a judgment entered in the office of the clerk of the county of New York December 7, 1887, upon the report of the referee dismissing the plaintiff’s complaint.

      R. M. & D. P. Hall, for the appellant.

      Wheeler H. Peckham, for the respondent.
   Bartlett, J.:

This is an action for money had ana received. One John R. Brown acted as the common agent of the plaintiff and the defendant, at the city of New York, selling cement on commission for the plaintiff, and lime on commission for the defendant. In November, 1884, he made a general assignment for the benefit of his creditors, and he subsequently absconded; whereupon it was discovered by the plaintiff that a number of promissory notes, representing upwards of $4,000, which had been received by Brown in payment for the plaintiff’s cement, had been by him turned over to the Cobb Lime Company on account of sales of lime which he had effected in behalf of that company. The plaintiff brought the present suit to recover the aggregate amount which the defendant had realized upon such notes. A general denial was interposed to the complaint, and the case was sent to a referee. Upon the trial, the parties entered into a stipulation which permitted either party to read entries from the account of the other as contained in the books of Brown, the common agent. When all the evidence was in, it appeared not only that the Cobb Lime Company had received from Brown a considerable amount in the form of notes given to him in payment for the plaintiff’s cement, but, on the other hand, that the plaintiff had received from Brown a considerable amount in the form of notes given to him in payment for the Cobb Lime Company’s lime. At the close of the case, it was admitted by the counsel for the plaintiff that the proof did not disclose whether, during the course of Brown’s common agency, the plaintiff or the defendant had received the larger amount of notes given for the lime or cement of the otlier party. Thereupon, the referee dismissed the complaint, on the ground that the evidence was insufficient to warrant a recovery by the plaintiff, and from the judgment entered upon his report the plaintiff, has appealed. The action is clearly maintainable (Hathaway v. Town of Cincinnatus, 62 N. Y., 434); and the only doubt which arises as to the correctness of the disposition made of it by the learned referee is due to the form of the answer.

If there had been a plea of set-off or counter-claim based on the fact that the plaintiff had received from the common agent an amount derived from sales of the defendant’s lime, which equaled or exceeded the amount received by the defendant that had been derived from sales of the plaintiff’s cement, it would be clear that the plaintiff could not recover if the evidence failed to show that the defendant had obtained more of his money than , he had obtained of the defendant’s money. But the proofs to sustain the claim of an equitable set-off were admitted under the stipulation which has been mentioned, and the effect of this stipulation was to entitle the defendant to have the case treated as though such set-off had been pleaded.

There is another view in which the judgment may be sustained. The proceeds -of the sales of cement and lime in the hands of the common agent may be regarded as constituting one fund out of which he undertook to pay each party the share to which that party was entitled. Under the eqtiitable principles which apply to actions for money had and received, the plaintiff must show that he ought to have the money for which he sues ex aequo et iono. (Buel v. Boughton, 2 Denio, 91.) It would ill accord with equity or good conscience to allow a plaintiff to recover money as having been wrongfully or erroneously paid by a common'agent to another principal, without crediting to that principal such money of his as had been similarly paid to the plaintiff by the common agent. The plaintiff’s recovery, in a case of this kind, must be limited to the excess which the defendant may have received out of the moneys or securities, .partly belonging to each, in the hands of their common agent.

We have not overlooked that portion of the brief for the appellant in which it is argued that the evidence is not defective in failing to show which party received the larger amount of the other’s notes, but we deem the admission on that subject at the close of the testimony conclusive as to this point. -

The judgment should be affirmed, with costs.

Daniels, J., concurred; Beady, J., concurred in the result.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE ZULIA STEAM NAVIGATION COMPANY, Appellant, v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY OF NEW YORK and Others, Respondents.

      Assessment of a corporation fm' the purposes of taxation— the fact that its personal property is out of the State does not preclude its assessment therefor.

    A corporation having- its principal office in the city oí New York, and having a capital stock oí $70,000, of which $85,000 had been paid in, was the owner of a certain steamboat which had been sent to the Zulia river, in Venezuela, which had cost about $17,000; the balance of the paid-up capital stock had, most of it, been expended on account of the transportation of the vessel to South America. The commissioners of taxes and assessments assessed the company upon the full . amount of $35,000.

      EM, that an objection on the part of the corporation that, inasmuch as the permanent location of this personal property was shown to be outside of the territorial limits of the State of Sew York, the company was entitled to exemption from taxation in this State, was not well taken.
    That the intention of the law was that the assessment on the capital stock of the corporation should be made without regard to the actual location of its personal property.
    That it did not appear that the capital stock of the appellant was assessed at an excessive valuation, as the expenditure of the money spent in getting the steamer to South America could not be assumed to have been .without advantage to the company, and in the absence of evidence to the contrary it would be assumed to have yielded an adequate return.
    Appeal from an order entered in the office of the clerk of the county of Hew York, on the 20tlx day of July, 1887, which confirmed the proceedings of the commissioners of taxes and assessment of the city of Hew York and dismissed certain writs of certiorari issued herein, with costs to the respondents.

      De Lancey Nicoll, for the appellant.

      George S. Coleman, for the respondents.
   Bartlett, J.:

Tliis is a proceeding by writ of certiorari, under chapter 269 of the Laws of 1880, to review an assessment made by the Commissioners of Taxes and Assessments of the City of Hew York against the Zulia Steam navigation Company for taxation on its capital stock for the year 188Í.

It appears that the company was incorporated in 1880, under the Laws of this State, to build and own, charter and navigate vessels on lakes and rivers within this State, but also and ehieiiy in Venezuela and the United States of Colombia. Its principal office was in the first ward of the city of Hew York. This made it a resident of the city for the purposes of taxation. The capital stock, of the company was $70,000, of which $35,000 had been paid in prior to the second Monday of January, 1881, hut no shares of stock had actually been issued. Of this $35,000, about $17,000 had been expended in building a steamboat which had been sent to the Zulia Elver in Venezuela, but had not yet been tried. The balance of $18,000 had, most of it, been expended on account of the transportation of the vessel to South America, and other incidental charges outside the actual cost of construction. The commissioners assessed the company the full amount of $35,000 as the actual value of its capital, and the court at Special Term, has refused to reduce or set aside such assessment.

In behalf of the relator, it is contended that, inasmuch as the permanent location of the personal property of the Zulia Steam Navigation Company was shown to be outside the territorial limits of the State of New York, the company was entitled to exemption from taxation in this State; and it is further urged that even if liable to be taxed on its capital, without deduction on account of property permanently located in a foreign country, the assessment was, nevertheless, erroneous, because the capital stock was overvalued instead of being assessed at its actual value as required by law.

The provisions of the Revised Statutes in reference to the taxation of the capital stock of corporations, as amended by chapiter 456 of the Laws of 1857, have very frequently come before the courts for consideration; and, although no express adjudication is to be found by the court of last resort to the effect that the capiital stock of an incorporated conrpahy, which is legally a resident of this State, may be taxed here, notwithstanding that the piropierty which that stock represents is situated in a foreign State, I think such is the implication fairly to be derived from the pxrincipial cases which have been decided by the Court of Appeals bearing on this question. With respiect to individual owners who are assessed for tangible personal property, the situs of such property is most material; and if it be without the State, that fact will defeat the assessment. (People ex rel. Hoyt v. Commissioners, 23 N. Y., 224.) But with respiect to corporations the mode of taxation is different. The assessment under the act of 1857 is the estimate of the actual value, not of the piersonal piroperty of the corporation as such, but of its capiital stock after making the statutory deductions; and, although the piersonal pnxperty which the corporation owns may, and usually does, form a very important element in making up> the aggregate value of the capiital stock, other elements often come in, as for example, the value of the corporate franchise. And the intent of the legislature seems to have' been that this assessment on the capital, stock should be made without regard to the actual location of the personal property. In the case of The People ex rel. Pacific Mail Steamship Company v. Commissioners of Taxes (64 N. Y., 541), the relator claimed that the assessment upon its capital stock should be reduced by deducting therefrom certain sums paid on account of steamships which were in process of construction outside the State. This claim for exemption was denied on the ground that it did not appear that the absence of these vessels from the State was anything more than temporary; but the Court of Appeals was careful to say that it did not intend to intimate that under the statutes in this State there was any other mode of taxing' a corporation than by assessing the capital stock at its actual value without regard to the situs of its property. And in the much later case of the People ex rel. Panama Railroad Company v. Commissioners (104 N. Y., 240, 249), the language of Andrews, J., clearly implies that the capital stock of a New York corporation is taxable here, although most of the property which really gives that stock its value may be situated in a foreign country. Thus he speaks of the possibility of corporations being subject to double taxation: “ Where some portion of their personal estate may he in another State or country and is taxable under the laws of the foreign jurisdiction; ” and he points out that all which the State in justice should exact from a corporation having nearly its whole property in a foreign jurisdiction would be to impose on it “ a franchise tax, and a tax on its real estate and its tangible personal property having its actual situs within our jurisdiction, and its credits.” But he says the remedy against the general rule prescribed by the act of 1857 is with the legislature, and not with the courts.

These observations and others in the same opinion necessarily involve the assumption that the Panama Bailroad Company was liable to taxation in this State upon capital representing personal property situate in South America ; and if that be so, the relator in this case is similarly taxable.

We do not think that the capital stock of the appellant was assessed at an excessive valuation. The fact that the actual cost of constructing the vessel sent to Venezuela was only about $17,000, did not necessarily require a reduction of the assessment to that amount. The expenditure of an equal sum in getting the steamer into South American waters could not properly be regarded as a loss. It might fairly be assumed, by the assessing officers, that such expenditure was advantageous to the company, and in the absence of evidence to the contrary would yield an adequate return. If it were thus, in fact, a profitable investment, we can see no reason why the actual value of the capital stock was not equal to the amount which had been paid in.

We find no error in the proceedings of the respondents, and the order confirming those proceedings should, therefore, be affirmed.

Beady and Daniels, JJ., concurred.

Order confirming proceedings affirmed.


text:
    FRANK KELLER and CHARLES FREY, Respondents, v. WILLIAM H. PAYNE, Appellant, and Another.

      Compulsory reference — the account must he one between the pa/rties to the action.

    In an action to recover the purchase-price of goods sold and delivered it appeared that the plaintiffs had accepted, in payment for such goods, two promissory notes which had not yet fallen due when the suit was commenced, and which they offered to restore to the defendants, alleging that they had been induced to take them by false representations as to the defendants’ solvency.
    Upon the trial at circuit, before a jury, the plaintiffs endeavored to prove that the defendants were insolvent by entries from the books of the defendants’ firm, whereupon the judge presiding at the trial ordered a reference, of his own motion, on the ground that the case involved the examination of a long account.

      Held, that, in order to authorize a compulsory reference the account must be one existing between the parties to the action, and must be directly involved in the suit.
    That a compulsory reference was not properly ordered in this case.
    Appeal by the defendant William H. Payne from an order, entered in the office of the clerk of the county of New York, on the 2d day of May, 1888, directing that this action he referred to Leonard J. Langbein, Esq., a counselor at law, to hear and determine the same.

      L. Laflin Kellogg, for the appellant.

      Chas. Miehling, for the respondents.
   Bartlett, J.:

This is an action to recover the purchase-price of goods sold and delivered. The plaintiffs accepted from the defendants in payment therefor two promissory notes, which had not yet fallen due when the suit was begun, but which they offered to restore to the defendants, alleging that they had been induced to take them by means of false representations as to the defendants’ solvency. Upon the trial at Circuit, before a jury, the plaintiffs endeavored to prove that the defendants were insolvent, by entries from the books of the defendants’ firm; and the learned judge who was presiding finally ordered a reference, of his own motion, on the ground that the case involved the examination of a long account. The defendants admitted the purchase of the goods which the plaintiffs claimed to have sold them, but denied the alleged fraudulent representations, and pleaded the giving and acceptance of the notes as an affirmative defense. The case, therefore, did not call for the examination of a long account, or any account whatever, between the parties. The entries in the books of the defendants were material, only as bearing upon the question of their solvency at the time of the alleged misrepresentation. It is well settled that, in order to authorize a compulsory reference, the account must be between the parties to the action, and must be directly involved in the suit. (Camp v. Ingersoll, 86 N. Y., 433.) Here it is apparent that the accounts by which the plaintiffs seek to show that the defendants were insolvent, are, for the most part, if not wholly, between the defendants and third parties, and that such accounts have only a collateral bearing upon the issues in the case. Under these circumstances, the action of the court below cannot be sustained, unless we are prepared to hold that a compulsory reference is authorized in any action based upon the allegation of false representations by a defendant as to his solvency, wherein the plaintiff proposes to read accounts from the defendant’s books, between the defendant and other creditors, for the purpose of proving the alleged fraud.

The order should be reversed, with costs, and the case should be restored to the Circuit calendar for trial.

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

Order reversed, with costs, and case restored to the Circuit calendar for trial.


text:
    FANNIE BEAN, Respondent, v. GEORGE W. CARLETON and Others, Appellants.

      Evidence—that a provision in a contract is wnsual — as to the cost which would attend the execution of the contract — basis of dmiages.

    In an action brought to recover damages for the alleged breach of a contract made by a publisher, in not publishing a book of which the plaintiff was the author, evidence on behalf of the publisher, to the effect that the written portion of the agreement is an unusual contract to be made between a publisher and an author, is incompetent.
    In such an action testimony introduced on behalf of the plaintiff, as to the cost of printing such a hook as the one in question, is properly received as bearing upon the disputed question whether a memorandum offered in evidence, as containing the contract of the parties, embodied the entire agreement.
    Such evidence might tend to prove that the bargain as testified to by the other party was unreasonable.

      Cornell v. Markham (19 Hun, 275) followed.
    The difficulties, involved in estimating the injury done to an unknown author by the breach of a contract to publish his first hook, do not preclude a recovery by him or require the jury in such a case to render a verdict for merely nominal damages.
    Appeal by the defendants from a judgment, entered in tlie office of the clerk of the county of New York on the 19th day of December, 1887, and from an order denying a motion for a new trial made upon the minutes of the judge before whom the action was tried.
    This action was brought to recover damages for the alleged breach of a contract made by the defendants for the publication of a book of which the plaintiff was author, and a verdict was rendered in favor of the plaintiff for $900 damages.

      Edmund Coffin, Jr., for the appellants.

      Alfred B. Cruikshank, for the respondent.
   Bartlett, J.:

This is an action to recover damage's for an alleged breach of contract in regard to the publication of a book of which the plaintiff was the author. On a previous appeal we held that, inasmuch as the written agreement did not purport to cover the entire contract between the parties, the omission might be supplied by oral test! mony. (Bean v. Carleton, 6 N. Y. State Rep., 641.) On the trial which resulted, in the judgment now appealed from, such parol evidence was admitted. The court clearly erred, however, in receiving the evidence of Mr. George H. Putnam, a publisher, to the effect that the written portion of the agreement was an unusual contract between a publisher and an author. No case is cited as authority for the admission of such evidence, nor do we know of any rule of law which justifies its reception. In Carlson v. Oceanic Steam Navigation Company (109 N. Y., 359), a Swedish peasant woman sued to recover the value of her trunk and its contents, lost on the defendant’s line of steamers, and evidence was offered for the defense tending to show that the usual value of the baggage of such passengers was less than that claimed to have 'been lost by the plaintiff. The trial court refused to admit the evidence and the ruling was sustained. This decision is adverse to the respondent upon the point under consideration. It is suggested, in the present case, that proof of the unusual character of the written agreement tends to support the testimony of the plaintiff that the writing did not express her whole contract with the defendants; but, inasmuch as parties may, and in fact often do, enter into agreements out of the common run, we think it is going too far into the realm of mere speculation to assume that simply because the terms of a stated contract are novel or exceptional, it is probable that the real agreement between the parties is different from that alleged.

It was also error to admit evidence, against the objection and exception of the defendant’s counsel, as to the failure of the defendants to illustrate the plaintiff’s book in the manner agreed upon. The complaint alleged certain specific breaches of the contract, of which this was not one. It said nothing whatever about the illustrations or the omission to provide such as were promised by the defendant Carleton. The plaintiff’s testimony, therefore, to the effect that he had failed to fulfill his agreement with her in this respect, was irrelevant to any issue in the case. In overruling the objection, the court conceded that no recovery could be had on this ground, but intimated that the testimony might go to show whether the whole agreement was carried out or not. This view, however, did not render it any more admissible, for proof that a contract has been violated' in one particular has no tendency whatever to show that it has heen violated in other and widely different particulars.

The testimony introduced in behalf of the plaintiff as to the cost of printing such a book as hers, at the time it was printed by the defendants, was properly received. (Cornell v. Markham, 19 Hun, 275.) It was relevant to the disputed question whether the memorandum embodied the entire agreement between the parties; and, as in the case cited, it tended to prove that the bargain, as testified to on the other side, was unreasonable.

The appellant insists that the complaint should have been dismissed for the plaintiff’s failure to prove any damages at all, or that, in any event, the jury should have rendered a verdict for nominal damages only. It is not necessary to express any opinion on these points, as we must reverse the judgment on account of the erroneous rulings already considered; and it may very well be that the plaintiff, on another trial, will be able to offer more certain and satisfactory proof of the damages she sustained. The difficulties of fairly estimating the injury done to an unknown author by the breach of a contract to publish that author’s first book are manifestly very great, but they are not necessarily insuperable, and “ a person violating his contract should not be permitted entirely to escape liability because the amount of damages which he has caused is uncertain.” (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y., 205, 209.)

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

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

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


author: Van Brunt, P. J.:

text:
    CHARLES HAUSELT, Appellant, v. ELIZABETH PATTERSON and Another, Respondents.

      An heir or devisee, accepting an inheritance or devise, is personally hound to pay a mortgage on the premises.

    The provision of the Revised Statutes, that whenever any real estate, subiect to a mortgage executed hy an ancestor or testator, shall descend to an heir or pass to a devisee, such devisee or heir shall satisfy or discharge such mortgage out of his own property, without resorting to the executor or administrator of his ancestor or testator, imposes a personal and individual liability upon the heir or devisee accepting the inheritance or devise to pay the mortgage.
    Appeal by the plaintiff from judgment of the New York Special Term, entered in the office of the clerk of the county of New York June 6, 1888, dismissing complaint.

      Lewis Sanders, for the appellant.

      P. Stevenson and Christopher Fine, for the respondents.
   Van Brunt, P. J.:

In December, 1854, one John H. McCunn made and executed his bond in the penal sum of $10,000 to the City Eire Insurance Company, conditioned for the payment of $5,000, which bond was secured by a mortgage upon premises 406 West Twenty-third street in the city of New York. In July, 1872, McCunn, being a resident of the city of New York, died seized in fee of said premises, and also of other real estate, in value over its incumbrances of nearly $300,000. The said McCunn left him surviving certain lieirs-at-law upon whom this real estate descended. Such heirs accepted such real estate, having subsequently executed conveyances of interest therein.

In August, 1873, the City Fire Insurance Company commenced an action for the foreclosure of this mortgage, making the executors heirs at-Iaw, etc., of said McCunn, defendants, and such proceedings were had that a judgment of foreclosure of the premises mortgaged was rendered.

The premises were sold, and after payment of taxes and liens and the costs and expenses of foreclosure nothing remained out of the proceeds applicable to the payment of the bond and mortgage; and, in November, 1881, a judgment for deficiency of $7,606.54 was duly entered in favor of the plaintiff against the executors of said McCunn. Tins action was commenced in July, 1885, against the heirs of said McCunn and their successors to recover the amount of said deficiency. Subsequent to the ■ commencement of said action leave was granted to the plaintiff to maintain the action, and said order was entered wtmc pro tuncas of the date of the original bringing of the suit. Upon the trial the complaint was dismissed, and from the judgment thereupon entered this appeal is taken.

The ground upon which the plaintiff seeks to maintain his action against the heirs of McCunn is, that such right of action is given by section 4 (vol. 1, p. 749) of the Revised Statutes, which is as follows : “Whenever any real estate subject to a mortgage executed by any ancestor or testator shall descend to an heir or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own property without resorting to the executor or administrator of his ancestor or testator, unless there be an express direction in the will of such testator that such mortgage be otherwise paid.” It is to be observed that the liability created by this section is entirely separate and distinct from that which is created by section 32 (vol. 2, p. 452) of the Revised Statutes, which makes the heirs and devisees of every person who have died, respectively, liable for the debts of such persons to the extent of the estate which shall have descended or been devised to them by such person.

In the case at bar it is urged that the heirs of John II. McCunn, by accepting the real estate which descended to them upon his death, became personally and individually -liable, by force of • the section first above referred to, for the amount secured by the mortgage upon the premises in question.

It seems to us that a very brief consideration of the relation of the parties to this real estate and the obligations raised by the statute will show that the contention of the plaintiff is well founded. It seems to be clear that the mortgagee had a right to collect the amount due upon this bond from the estate of John II. McCunn, and that the fact that he had a mortgage to secure said bond would be no defense to any such claim. Under the decisions where this section came in question, it is distinctly intimated that it was not the design of this statute to deprive a party of his right to enforce this personal liability. It is distinctly asserted that the creditor has the right to pursue his remedy as though that statute had never existed, against the estate of the deceased obligor in the bond. (Wright v. Holbrook, 32 N. Y., 589.)

It is asserted that the sole object of the statute was to change the rule of the common law under which the 'heir and devisee had a right to call upon the representative of the decedent to pay off the mortgage. This being the case, the holder of the bond and mortgage having the right to collect from the estate of the deceased obligor if he so desired, let us see for a moment what obligation then arose between the estate of the deceased and the persons upon whom the real estate had descended. It is clear that the estate of the deceased person would have a right, after having paid the amount of this bond and mortgage, to recover the same, by force of the statute in question, from the heirs-at-law of the deceased, because the heirs, under these circumstances, had received the real estate and had not complied with the obligations which the statute had imposed upon them, namely, to discharge the indebtedness out of their own property. The personal estate of the deceased mortgagor had become only secondarily liable, and the primary liability for the discharge of this mortgage was upon the persons who had received the real estate upon which it was a charge ; and the estate, having paid this amount at the demand of the creditor, had undoubtedly its action over against the heirs to recover back the amount.

This condition is plainly suggested in the section already cited. Such being the legal rights of the parties, in case the holder of the bond and mortgage seeks to recover from the estate of the deceased, obligor, it is clear that there is an obligation upon the part of the heirs to pay and discharge this debt, and such obligation naturally runs to the holder of the obligation for the debt, although the holder might resort to the original debtor and recover from him, yet thereby the obligation of the heir to pay is not discharged. We have, then, a case of an obligation upon the part of the heir to pay which has been created by the statute upon the heir’s acceptance of the real estate which has descended to him, and this necessarily implies an obligation to pay to the person who owns the debt. We have, then, a case entirely within the provisions of the case of Lawrence v. Fox (20 N. Y., 268); and it is no answer to the claim upon the part of the creditor, who seeks to enforce this statutory liability directly from the heir, to assert that there is no privity of contract between them. This is an obligation arising under the statute in favor of the creditor, and the creditor has the same right to pursue the same directly as though the heir had received this real estate from the representatives of the deceased upon a distinct contract to pay the debt. This obligation is personal to the heir, and if he accepts the real estate descended upon him and exercises rights of ownership, he takes it with the obligation created by this statute and which he can only discharge by the payment of the debt. This obligation creates no lien of itself upon the real éstate mortgaged, or upon any real estate of the testator which has descended, but is simply a contract obligation to pay a debt existing. So far as liability under this statute was concerned, the grantees or devisees or heirs-at-law of such heir are not responsible. The estate of an heir-at-law is undoubtedly liable as it would be for any other contract debt of such heir, but such liability, as has been already observed, does not follow the real estate of the mortgagor, except so' far as it may be specially pledged by the mortgage itself.

We are aware of the" authorities cited upon both sides in support of the various contentions which have been presented upon this appeal. But it does not seem that the question has been suggested before, or that it has ever been adjudicated upon. The obligations arising under this section seem to be so clear that the only conclusion which can be arrived at is the one which has been above suggested.

The judgment, therefore, so far as it dismissed the complaint against anyone of the heirs of John H. McCunn, who were living at tiie time of his death, or the personal representatives of any such heirs as have died, was erroneous and must be reversed, with costs to the appellant to abide the event. And the judgment, so far as it. dismissed the complaint as to any of the grantees of any one of those heirs and their devisees or heirs, must be affirmed, with costs.

Daniels and Bartlett, JJ., concurred.

Judgment ordered as directed in opinion.