text:
    HENRY HEINER, Plaintiff and Respondent, v. JOHN HEUVELMAN, et al., Defendants and Appellants.
    Before Van Vorst and Speir, JJ.

      Decided March 3, 1879.
    Negligence.—Liability op master por injury op servant.
    'Where the master abdicates the control and management of certain work in favor of an employee, and gives him full discretion in regard thereto, he is liable for the neglect of said employee, in the performance thereof, to the same extent that he would be liable for his own neglect. This though the party injured thereby and seeking redress was also employed by him as a workman, engaged in the same matter and under the control of said employee.
    The above rule is not affected by the fact that the master has exercised due care in the selection of the person assigned to said duty.

      The action was brought by the plaintiff for damages sustained by him while in the defendants’ employment, and caused by their negligence.
    The plaintiff, an iron-worker by trade, was in the employ of defendants, and was engaged in the county court-house, in the city of .New York, removing the iron columns from the interior sides of the rotunda. The defendants were the contractors with the city, for the alterations of the court-house, then in progress.
    At the time of the accident, the plaintiff and two others, servants of the defendants, were at work on the balcony running round the rotunda, on the floor, removing a scaffolding. One Jacob Webber had been assigned by defendants to employ the servants to do this duty, and at the same time engaged them in removing a derrick over the heads of the plaintiff and his fellows on the balcony. While being moved, the derrick fell forward into the rotunda, and the plaintiff was entangled in its rigging, and had his arms broken and his head injured.

      Chambers, Boughton & Prentiss, defendants’ attorneys; Wm. P. Chambers, of counsel.

      C. S. & D. B. Ogden, plaintiff’s attorneys; Albert Stickney, of counsel.
   By the Court.—Speir, J.

The evidence shows clearly that there was no negligence on the part of the men moving the derrick. The negligence complained of was that of Webber, in sending an insufficient number of men to do the work of removing the derrick, which was done in his absence, and at the same time sending the plaintiff to a position in which injury was inevitable should any accident occur. The cause of the derrick’s fall was that its weight was greater than the men assigned to the task of moving it could sustain.

The defendants had employed Webber to select and hire the workmen, and they gave to him full discretion as to the number to be employed in the work on hand at any particular time, and full control of the manner and conduct of the operation.

There can be no question but the motion of the defendants for a nonsuit at the close of the plaintiff’s case was properly refused. It was not pretended that the men in charge of removing the derrick were not sufficiently careful in doing the work to which they had been assigned by Webber. He represented the defendants, and if there was any neglect of duty on his part the defendants are responsible, although the plaintiff and himself were in their employ; for the evidence in the case clearly shows that Webber did not stand in the same relation to the defendants and to the plaintiff respectively which the other workmen did.

It is claimed that the judgment should be reversed for the reason that the court erred in charging the jury, in substance, that while the defendants were not liable if the injuries were occasioned solely through the negligence of defendants’ servants other than the foreman, Webber, they were responsible for Webber’s negligence, if any, in the same manner and to the same extent as if his negligence had been their own. The defendants delegated to their foreman the performance of the duties they owed to-their other employees, and he failed to furnish a sufficient number of workmen to perform the work in hand. This constituted negligence, for which the defendants are responsible (Flike v. Boston & Albany R. R. Co., 53 N. Y. 554). It does not matter how careful the defendants were in the' selection of Webber for the post assigned him, they are responsible for his failure to provide a sufficient force safely to perform the work in hand. Nor does the rule apply that the master is not liable to a servant for injuries resulting solely through the negligence of a fellow-servant.

The court refused to charge the jury according to defendants’ fifth request: “ That if the jury believe that Webber was defendants’ foreman or superintendent, charged with the special duty of superintending the work in question, but performed it under general instructions from defendants, the plaintiff cannot recover.” We think the refusal was proper. Such a charge would, in effect, confound Webber’s agency with that of a mere foreman, charged, it is true, with special duties, but performing them under general or special instructions from the principal, who retains and has the general supervision of the business, and to whom and whose direction all are subject. The distinction is entirely lost sight of, as plainly appears in the case of Flike v. Boston & Albany R. R. Co. (53 N. Y. 549). In the case at bar the master abdicates the management and control of the work in favor of the employee ; in the case last cited the principal retains and holds the general supervision of the business.

The second, third and fourth requests to charge were properly refused. These were based upon the 'mistaken notion that, as a matter of law, and upon the facts in evidence, that the defendants were not liable for Webber’s carelessness.

The judgment and order appealed from must be affirmed, with costs.

Van Vorst, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    LAURENCE ENNIS, Plaintiff and Appellant, v. JOHN F. BRODERICK and THOMAS NOLAN, Defendants and Respondents.
    Before Curtis, Ch. J.; and Freedman, J.

      Decided March 3, 1879.
    Undertaking under sections 354, 356, of the Code.—Liability of sureties thereon.—Execution, informality in return of.
    When, on an appeal from a judgment of the district court, the appellant gives the undertakings required by sections 354 and 856 of the Code, in one instrument, which is duly approved by a justice of said court, and flies it with the clerk of the court of common pleas, it is a sufficient compliance with the statute to operate as a stay upon the judgment appealed from (Jackson v. Smith, 16 Abb. Pr. 201).
    By the undertaking upon which this action is brought (which was the same as the one above described) the defendants undertook that if the judgment should be affirmed on appeal, and execution issued thereon be returned unsatisfied, they would pay the amount unsatisfied. Held, that to make a prima facie case under the pleading, plaintiff was only bound to show that the judgment had been affirmed, and that execution issued thereon had been returned unsatisfied (Sperling v. Levy, 1 Daly, 95).
    By the filing of a transcript of the judgment referred to -in said undertaking in the office of the clerk of the city and county of New York, it thereupon became a judgment of the court of common pleas, for all purposes of enforcing satisfaction.
    If the formal requirement in the execution issued thereafter upon the same, directing the sheriff to return said execution to the clerk of the city and county of New York, was erroneous, which, however, is not clear under the new Code, it was a mere informality which may be disregarded, and which cannot be taken advantage of by defendants herein.
    Chapter 484 of the Laics of 1862 does not apply to the case at bar. It provides a cumulative remedy against marshals and their sureties, by suit on their official bonds.

    The plaintiff recovered judgment on July 13, 1877, against Lawrence A. Curry, one of the marshals of the city of New York, in the district court of the city of New York, for the First Judicial District.
    Curry appealed from that judgment to the general term of the court of common pleas, and gave the usual undertaking required by section 356 of the Code, to stay proceedings, in which the defendants herein were the sureties.
    It was duly approved by the justice of the district court, and filed in the office of the clerk of the court of common pleas on the day of its approval.
    A transcript of that judgment was filed in the office of the clerk of the city and county of New York, on the day of its recovery.
    The judgment appealed from was affirmed by the court of common pleas on November 23, 1877, and, upon entry of judgment of affirmance and filing of transcript thereof in the county clerk’s office, execution was issued on both out of the court of common pleas to the sheriff of the city and county of New York, and, by said sheriff, returned on December 14, 1877, wholly unsatisfied, and the one issued upon the district court judgment was returned to the clerk of the city and county of New York, pursuant to section 1,367 of the Code of Civil Procedure.
    This action is brought to recover of the defendants the amount of said judgment upon the undertaking given on appeal.
    At the trial, upon the close of plaintiff’s evidence, the defendants moved for a dismissal of the complaint upon the following grounds.
    I. That no notice of entry of judgment of affirmance had been given, either to the attorney for Curry in the suit of Ennis v. Curry, or to the sureties (who are defendants here), previous to the commencement of this action.
    II. That an undertaking to stay proceedings must be delivered to and filed with the justice in the district court. That the undertaking in this action was never delivered to him, but simply approved by him, then ■ immediately taken from him by the person offering it for approval, and filed with the clerk of the court of common pleas, for the mere purpose of perfecting an appeal; and therefore the sureties, at most, are obligated only to the extent of the costs, and the costs having been paid under the order of the court, the plaintiff could recover nothing more in this action.
    III. That no transcript of the judgment against the marshal having been filed in the office of the clerk o"f the court of common pleas, pursuant to section 8 of chapter 484 of the Laws of 1862, the plaintiff could not maintain this action against the defendants.
    , IV. That no execution having, been issued and returned to the court of common pleas upon such judgment, the plaintiff could not recover.
    The court dismissed the complaint, to which order dismissing.the complaint the plaintiff excepted.
    The court thereupon adjourned for the term. After-wards, plaintiff’s attorney obtained from another judge sitting at Chambers, an order to show cause why a new trial should not be granted upon the minutes of the judge who had presided at the trial. The motion was heard by the judge last referred to, and denied.
    Plaintiff appealed from the judgment and the order denying motion for new trial.

      L. B. Bunnell, for appellant.

      Thomas & Wilder, for respondents.
   By the Court.—Freedman, J.

The evidence shows that on July 19, 1877, the undertaking- sued upon was duly approved by the justice of the district court, and that thereupon it was filed in the' office of the clerk of the court of common pleas. This was a sufficient compliance with the statute to operate as a stay upon the judgment appealed from (Jackson v. Smith, 16 Abb. Pr. 201).

By that undertaking the defendants undertook that if the judgment should be affirmed on appeal, and execution issued thereon be returned unsatisfied, they would pay the amount unsatisfied. The judgment was affirmed and the execution issued thereon returned unsatisfied, and that was all the plaintiff was under the pleadings bound to show, in order to make out a prima facie case (Sperling v. Levy, 1 Daly, 95).

By the filing of the transcript in the office of the clerk of the city and county of New York, the judgment against Curry became a judgment of the court of common pleas for all purposes of enforcing satisfaction (Code, § 68). The filing of the transcript in the office of the clerk of the city and county of New York was necessary, in order to make the judgment against Curry a lien upon his real estate, if he had any, and to enable the plaintiff to issue an execution against both the personal and real property of the judgment debtor.

If the formal requirement, directing the sheriff to return the execution to the office of the clerk of the city and county of New York, was erroneous, which, however, is not clear since the new Code, it was, as held by Robinson, J., in Ennis v. Curry, a mere informality, which may be disregarded.

Chapter 484 of the Laws of 1862 does not include the case at bar. It provides a cumulative remedy against marshals and their sureties, by suit on their official bonds. Upon proof that a judgment has been recovered against a marshal for official misconduct, that a transcript of such judgment has been filed in the office of the clerk of the city and county of New York, and that an execution issued thereon has been unsatisfied, &c., &c., a judge of the court of common pleas may grant leave to sue upon the official bond. Such suit is to be brought in the marine court, or any of the district courts, and if judgment be recovered, a transcript of such judgment must be filed with the clerk of the court of common pleas, to the end that it may be enforced in that court, as provided for by the said act, and that the clerk of said court, who by law is the custodian of the bond, may cancel the bond to the extent of the judgment. When the bond of any marshal gets entirely canceled by the entry of such judgments against it, the clerk must notify the mayor to that effect, and then the mayor must suspend the marshal. These provisions, it will be seen, do not at all apply to an action against a marshal’s sureties upon an appeal bond.

The objection that no notice was shown to have been given to the attorney of Curry, or the sureties, the defendants herein, of the entry of the judgment of affirmance, was abandoned bn the argument, and consequently does not require to be considered.

The judgment should be reversed, with costs to appellant, to abide the event. But the order denying plaintiff’s motion upon the judge’s minutes for a new trial must be affirmed, with costs, because the motion was not made during the term at which the trial took place.

Curtis, Ch. J., concurred.


text:
    THE ST. NICHOLAS NATIONAL BANK OF NEW YORK, Plaintiff and Appellant, v. WILLIAM SAVERY, WILLIAM E. SAVERY, GEORGE W. MASON and GEORGE W. VAN SCHAACK, Impleaded with ALEXANDER LAW, Defendants and Respondents.
    Law merchant.—Negotiable paper.—Partnership.
    In this case the following propositions were laid down, and their legal conclusions held. The 1st and 3d were held to be in full accord with the general rule, applicable to individual indorsers, and the 3d and last was founded on the law merchant.
    1. When a party takes negotiable paper, made, accepted or indorsed by one of several partners, in or with the partnership name, and the fact that such name was not signed or indorsed in the regular course of the business of the firm is apparent on the face of the instrument, or necessarily implied in the nature of the transaction, such party cannot, though he may have parted with value on the faith of the paper, charge the other members of the firm, except upon proof that they assented to the transaction. ' In every such case he is chargeable, as matter of law, with notice of want of authority in the individual partner to bind the firm without their express assent.
    3. When the fact, though existing, that such name was not signed or indorsed in the regular course of the business of the firm is not apparent from the face of the instrument, and the nature of the transaction appears to be susceptible of different conclusions, the question of notice is one of fact, to be determined by the jury upon all the circumstances. In every such case, the burden is again upon the plaintiff, though he may have parted with value, to satisfy the jury, either that the circumstances of the case did not constitute notice to him, or that, if they did, the other members of the firm assented to the transaction.
    3. When the fact, though existing, that such name was not signed or indorsed in the regular course of the business' of the firm, is not apparent from the face of the instrument, and the nature of the transaction appears to have been of such a character as to give the plaintiff a right to suppose that it was a partnership transaction, the members contesting their liability must not only show that in fact it did not constitute such a transaction, but also that the plaintiff had in some way actual notice thereof. In every such case, the burden is shifted upon the defendant to establish notice.
    Before Curtis, Ch. J., and Freedman, J.

      Decided March 3, 1879.
    Appeal from judgment entered in favor of defendants upon the verdict of a jury, and from the order denying plaintiff’s motion for a new trial, made on the judge’s minutes.
    The action was brought upon a note for $4,000, made by the firm of Charles F. Parker & Co., payable to their own order, and indorsed by them, also indorsed by Alexander Law, and beneath his indorsement with the name of “ John Savery’s Sons ” (defendants’ firm), which note had been discounted by the plaintiff.
    The defendant Law did not answer.
    All the other defendants answered, and averred, among other things:
    “That the said note was indorsed by the firm of Charles F. Parker & Co., payees, therein named, to the defendant, Alexander Law, individually, and that said Alexander Law, without the knowledge or consent of these defendants, or any or either of them, fraudulently indorsed the same in the name of defendants, solely as a further security for his individual indorsement thereon, and delivered the same so indorsed to the plaintiff for his own individual use and benefit.
    “ They allege that the same was not in any manner indorsed or delivered for the benefit of said firm, or in the course of búsiness of said firm, and that neither said defendants’ firm, nor any or either of these defendants. ever derived any benefit whatever from said notes, or had any interest whatever in the same, or its proceeds, and they allege, on information and belief, that the plaintiff, before and at the time of said transfer to itself, had full knowledge of all the matters above alleged.”
    Upon the trial evidence was given by both parties, and the court submitted the question to the jury, whether or nqt the disceunt was, in fact, made by the plaintiff for Law individually, or for the firm of John Savery’s Sons, with directions that in the former case plaintiff could not recover against the answering defendants, but that in the latter their verdict should be for the plaintiff.
    The jury found for the defendants.

      Martin & Smith, attorneys, and Aaron Pennington Whitehead, of counsel, for appellants.

      John A. Mapes, attorney and counsel, for respondents.
   By the Court.—Freedman, J.

It is conceded that at the trial the answering defendants fully established that Alexander Law, who was a member of both firms whose names appeared upon the note, indorsed the said note with defendants’ firm name wholly without authority, and not in the course of the business of the firm, but for his own individual benefit, and therefore in fraud of defendants’ rights.

The point is raised, however, that the defendants failed to show that the bank had notice of these facts at the time it discounted the note, and that without affirmative proof to this effect on their part, the verdict cannot be sustained.

All the exceptions taken by the plaintiff during the progress of the trial, except one to be hereafter noticed, and especially those relating to the charge of the court and the refusals to charge, relate with .more or less force to this point.

The question, therefore, to be determined is, upon which party the burden of proof was with respect to this branch of the case ?

In an action against an individual indorser the law is well settled that, when he has shown that his indorsement was procured by fraud, the burden is then cast upon the plaintiff to establish that he is a bona fide holder for value, which means, that he had no notice of the fraud, and that he parted with value upon the faith of the note so indorsed. Proof merely that he parted with value is not sufficient. He must go further and show that he had no notice, and of this duty he cannot be relieved by suggesting that he should not be called upon to prove a negative.

It is claimed, however, that a different rule should have been adopted in this case, because the indorsement purported to be that of,a firm, and as such must be presumed to have been made in the course of the partnership business.

The rule that the act of one, when it has the appearance of being on behalf of the firm, is considered the act of the rest, rests upon the law merchant. It is, as was said by Nelson, J., in Gansevoort v. Williams (14 Wend. 133), no doubt against general principles. Nevertheless, it is a rule firmly established. All the members of a firm are liable for money lent to the firm upon application of one of the partners, and it is not necessary to show the actual application of the money to the use of the firm ; and, consequently, it was held that a note given by one of several partners in the name of the firm, for money ostensibly borrowed by such partner for such firm, is of itself presumptive evidence of the existence of a partnership debt; and if the other partners seek to avoid its payment, the burden of proof lies upon them to show that the note was given in a matter not relating to the partnership business, and that with the knowledge of the payee (Whitaker v. Brown, 16 Wend. 505). This principle has been uniformly adhered to whenever the act of the individual partner, in making or indorsing a note in or with the firm name, gave the holder of the note a right to suppose that he was acting in the course of the business of the firm.

But where a note made or indorsed by one partner in or with the firm name is shown to have been received by the plaintiff, under circumstances which indicate in themselves that he is not acting in the course of the business of the firm, the rule is otherwise.

Thus, where a note is given in the name of a firm by one of the partners, for his private debt, and these facts are known to the person taking the note, the other partners are not bound except upon proof that they were previously consulted, and consented to the transaction ; and such consent, in this State at least, though the rule is otherwise in England, must be shown by the creditor who seeks to enforce the note against the firm (Dob v. Halsey, 16 Johns. 34, and cases there cited).

Upon the authority of this case it was held in Foot v. Sabin (19 Johns. 155) that the same principle applies with still greater force when one of several partners becomes surety on a note for another person, and, in doing so, attempts to bind his copartners ; because in such a case the creditor must be aware that the individual partner is pledging the partnership responsibility in a matter in nowise connected with the partnership business. To the same effect are Laverty v. Burr (1 Wend. 529); Bank of Rochester v. Bowen (7 Id. 159); Boyd v. Plum (Id. 309).

In Stall v. Catskill Bank (18 Wend. 467) the circumstances were not clear in themselves, and there was a conflict of testimony as to whether the cashier of the bank in fact knew that the name of the firm had been signed to the note as a mere surety, and the case was submitted to the jury with the instruction, “ that if the plaintiffs had any knowledge that the note in question was indorsed by Teats, without the knowledge of Stall, for the benefit of another person, they could not recover; but that the plaintiffs, being the holders of the note as negotiable paper, were entitled to recover against the defendant Stall, if they received the note in, good faith, without knowledge that Stall had not assented to the indorsement, although it was indorsed by one of the partners in the name of the firm, without his knowledge or assent, and for the accommodation and benefit of the drawer.” This charge was, under the circumstances of the case, held to be unobjectionable, and the judgment was affirmed. In the course of his reasoning in the case last referred to, the chancellor said:

“If the drawer of a note carries it to a bank to get it discounted on his own account, or transfers it to a third person, with the name of a firm indorsed thereon, the transaction on its face shows that it is a mere accommodation indorsement, or the note would not be in the hands of the drawer ; and the bank, or person who receives it from the drawer, being thus chargeable with notice that the firm are mere sureties of the drawer, and that it has not passed through their hands in the ordinary course1 of partnership business, the members of the firm, who have been made sureties without their consent, are not liable to the holder of such note.”

This statement of the rule by the chancellor was approved by the court of appeals in Fielden v. Lahens (2 Abb. Ct. App. Dec. 111). In that case the indorsements of the name of J. Lahens & Co. upon the notes were made by one of the members of said firm for the accommodation of the maker and without consideration to said firm, and the notes so indorsed were delivered to the maker, who delivered them to the plaintiffs. In affirming the .judgment in favor of the defendants, it was held:

“ The note being held by the maker, and put into circulation by him, in his own business, and for his own advantage, is evidence to the party taking it that whatever indorsements may be upon it were made for the maker’s benefit, and not in the ordinary course of business ; for, in the ordinary course of business it would have passed from the maker to the payee and indorser. The party receiving it, therefore, from the maker, in payment of the maker’s debts, assumes the risk of being able to show that the indorsement was in the usual course of business, and that the partners all consented to the act of the one who made the indorsement. As between the firm and the holder of the paper, this is but a reasonable rule. The partners are liable to a bona fide holder without notice in such case, only because he has the right to presume that the indorsement was made in the usual course of the partnership business, and therefore within the scope of the authority of the individual member of the firm who made it. But when the circumstances are such as to inform the holder of the fact that the indorsement was not made in the course of the partnership business, such presumption is excluded ; and it would be inequitable as well as illegal, as between the firm and the holder, for the court to presume the assent of the firm in favor of the holder thus notified.”

From the authorities referred to the following propositions may be deduced:

I. When a party takes negotiable paper, made, accepted, or indorsed by one of several partners, in or with the partnership name, and the fact that such name was not signed or indorsed in the regular course of the business of the firm is apparent on the face of the instrument, or necessarily implied in the nature of the transaction, such party cannot, though he may have parted with value on the faith of the paper, charge the other members of the firm, except upon proof that they assented to the transaction. In every such case he is chargeable, as matter of law, with notice of the want of authority in the individual partner to bind the firm without their express assent.

II. When the fact, though existing, that such name was not signed or indorsed in the regular course of the business of the firm, is not apparent from the face of the instrument, and the nature of the transaction appears to be susceptible of different conclusions, the question of notice is one of fact, to be determined by the jury upon all the circumstances. In every such case the burden is again upon the plaintiff, though he may have parted with value, to satisfy the jury, either that the circumstances of the case did not constitute notice to him, or that, if they did, the other members of the firm assented to the transaction.

III. When the fact, though existing, that such name was not signed or indorsed in the regular course of the business of the firm, is not apparent from the face of the instrument, and the nature of the transaction appears to have been of such a character as to give the plaintiff a right to suppose that it was a partnership transaction, the members contesting their liability must not only show that in fact it did not constitute such a transaction, but also that the plaintiff had in some way actual notice thereof. In every such case the burden is shifted upon the defendants to establish notice.

The first two propositions are in full accord with the general rule applicable to individual indorsers, that, upon proof of the procurement of the indorsement by-fraud, the burden is cast upon the plaintiff to establish that he is a tona fide holder for value. The third con-statutes an exception, founded upon the law merchant.

It now remains to be seen to which of these three classes the case at bar belongs.

The note in question was made by a firm of which Law was a member, indorsed by that firm, then indorsed by Law with his own name, then indorsed with the name of defendants’ firm in the handwriting of Law, and presented by Law in person to the president of the bank for discount. There is no pretense that he represented it to belong to defendants’ firm, or that he expressed a desire that it should be discounted for the benefit of. said firm. On the contrary, it is one of the conceded facts of the case that the proceeds of the discount were paid to him by a check to his individual order. Moreover, the president of the bank, in a certain conversation had with Mason, one of the defendants, on the day of the maturity of the note, was shown to have spoken of it as a discount for Law. True, he denied having made any such remark, but that was a question for the jury. Neither side called Law as a witness.

Upon these facts it is clear that the case does not belong to the class named in the third proposition above stated, and that, if it does not fall within that specified in the first, it certainly falls within the class specified in the second proposition. The most, therefore, that plaintiff could ask, was that the case should be submitted to the jury, and that, in the absence of any proof showing defendants’ assent, the jury should be instructed that the plaintiff was entitled to recover upon proof that it was a bona fide holder for value. The case was submitted to the jury, and they were charged, in substance, that the plaintiff could not recover unless it became the holder of the note in good faith for value, and without knowledge of the character of the indorsement; that it would in law be chargeable with such knowledge, if its president, who acted on behalf of the bank in discounting the note, dealt with Law individually; that if he dealt with him as a partner, plaintiff would not be thus chargeable ; that there was nothing in the law which would draw the suspicion of a person to the note as being out of the usual course of business, because it had been made by a firm, indorsed by an individual member of that firm, and then indorsed by another firm of which he was a member; and that, therefore, if the president dealt with Law as an individual, the plaintiff could not recover; but if he dealt with him as a partner, and as the agent of defendants’ firm, the plaintiff was entitled to recover. There is nothing in this charge, nor in the refusals to charge otherwise, to which an exception will lie. Nor can it be said that the verdict is against the evidence.

But a single exception has been argued relative to the admission of evidence, and that relates to the reception of certain admissions made by the president of the bank on the day the note matured. He was the executive officer of the bank. As such he had discounted the note. On the day of its maturity he called at defendants’ store and asked for Law. Upon being told that the latter was not in, he had a conversation > with Mason, one of the defendants, in the course of which, according to Mason’s version of it, he said that he had called to see Law in order to find out whether the latter would pay the nóte which the bank had discounted for him. His call, being for the very purpose of collecting the note, was in the direct line of his duties as the executive officer of the bank, and the admission he then and there made, by way of explanation, was made concerning a transaction in which he had been throughout, and then still was, the authorized agent of the corporation. Mason’s testimony upon this point was, therefore, neither against section 80 of 2 R. S. 407, nor incompetent for any other reason. Nor was it immaterial. The president had been examined as a witness for the plaintiff, and upon his cross-examination had been interrogated about the matters involved in this conversation^ and had given a different version of the same. Mason’s testimony was therefore admissible, because it contradicted that of the president upon a material point.

The judgment and order should be affirmed, with costs.

Curtis, Ch. J., concurred.


author: Per Curiam.

text:
    LUTHER H. WYGANT, Plaintiff and Respondent, v. THE NATIONAL BURGLAR AND THEFT INSURANCE COMPANY OF THE CITY OF NEW YORK, Defendant and Appellant.
    Before Curtis, Ch. J., and Sedgwick, J.

      Decided March 3, 1879.
    I. Evidence.

    1. Inferences from probabilities.
    The jury are entitled to draw inferences from the probability of a defense as testified to by the defendant’s witnesses.
    Appeal from a judgment for plaintiff entered on a verdict.
    The action was brought to recover the value of services alleged to have been rendered to the defendant at its request by the plaintiff, as night watchman and patrolman. The answer was in substance a general denial.

      S. R. Ten Eyck, for appellant.

      Jno. A. Mapes, for respondent.
   Per Curiam.

The verdict in this case is for less than $500, and the judgment at general term cannot be reviewed in the court of appeals. This has called for great care in examining the exceptions and the sufficiency of the evidence. There is no benefit in detailing the exceptions, for they involve only general principles that have been often stated. An examination has shown that they were not valid.

There were many facts that were circumstantial, to support the verdict. As part of the facts, the jury were entitled to draw inferences from the probability of the defense, as it was testified to by defendant’s witnesses. It is not necessary to give all the facts that tended to support the plaintiff’s claim ; but the verdict must have been upheld if the only fact had been that the company gave a promissory note for part of plaintiff’s wages, and handed it, for delivery to plaintiff, to Young, who had employed him on behalf of the company, and who gave him the note.

Judgment affirmed, with costs.


text:
    HENRY HENNEQUIN and others, Plaintiffs and Respondents, v. HENRY CLEWS and THEODORE S. FOWLER, Impleaded with FRED. BUTTERFORD and others, Defendants and Appellants.
    I. Arrest.
    1. Equitable action against all defendants combined.—Allegations constituting an action at law as to some.—Order of arrest, grantable when.

      Before Curtis, Ch. J., and Sedgwick, J.

      Decided March 3, 1879.
    (a) Defendants, as to whom the allegations make a cause of action at law, for which under the Oode an arrest may be had, can, after the same has been tried, as an equitable action, and disposed of as such, and the issues as to allegations constituting the legal cause of action have been sent to a ¡¡wry for disposition, BE ABBESTED.
    II. Bankrupt discharge.

    1. Demand not affected by.

      (a) Action for an unlawful conversion by the (trustee of property held in trust.

      Appeal from order denying a motion to set aside an order of arrest.

    This action was tried as an equity cause, and disposed of as such. Certain, allegations of the complaint as to which issues were raised by defendants Clews and Fowler, were held to constitute as to them an action at law, and were directed to be disposed of by a trial by jury. From the judgment entered on the decision an appeal was taken to the general term, where it was affirmed. The decision of the general term is reported (43 N. Y. Sup. Ct. 411), where the facts of the case are sufficiently detailed.
    The order of arrest in question was obtained after the disposition of the cause at the special term, but before the affirmance of the special term judgment, which, however, had been affirmed at the time of the argument of the appeal from the order denying the motion to set aside the order of arrest.

      J. M. Guiteau, attorney, and of counsel for appellants, among other things, urged:
    I. It is not competent to arrest in the first instance in an equity' case, because the judgment must be an equitable judgment.

      II. The reasoning that forbade an order of arrest in the case of Lambert v. Snow (17 How. Pr. 518), and Madge v. Percy, court of appeals, Dec. 11, 1875 (5 Weekly Dig. 593), in which the order was denied because two causes of action were united, ought to apply with equal force when numerous reliefs are asked for, as in this case.
    III. The defendants, Clews and Fowler, are discharged from the debt against them, described in the affidavit on which the order of arrest was granted, and the other proofs used to sustain it in the court below.
    IV. The debt is not one that comes within section 5117 of the Revised Statutes of the United States, providing that “no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation .as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy ; but the debt may be proved, and the dividend thereon shall be a payment on account of such debt ’ ’ (Cronan v. Cotting, 104 Mass. 245, and cases cited in the opinion of the court; Owsley v. Cobin, U. S. circuit court, South Carolina, 15 N. B. R. 489—Opinion by Waite, Ch. J.; Woolsey v. Cade, 15 N. B. R. 238, supreme court, Alabama; Grover v. Clinton, U. S. circuit court, Wisconsin, 8 N. B. R. 312—Opinion by Hopkins, J., concurred in by Davis, J.; Chapman v. Forsyth, 2 How., U. S. supreme court, 208; Neill v. Scruggs, 17 N. B. R. 102, U. S. supreme court; In re Smith, 18 Id. 24, U. S. D. C., S. D. N. Y.—Opinion by Choate, J.). (a) The nature of the claim against the defendants Clews and Fowler is identical with the plaintiffs’ claim in Cronan v. Cotting (104 Mass. 245). In that case the action was brought to recover for money received by the defendant to the plaintiffs’ use. It was referred to an auditor, whose report showed that the defendant was administratrix of the estate of her husband, between whom, at the time of his decease, and the plaintiff, there were unsettled accounts ; and the plaintiff sent to the defendant certain acceptances, with directions to apply the proceeds thereof, or such part as should be needful for the purpose, to pay whatever balance was actually due from him to the estate of the intestate. The defendant collected on account of the acceptances, and applied so much of the proceeds as was necessary to pay a balance, which she claimed was due to the estate. But the auditor found that the amount thus applied exceeded, by $3,922.25, the balance actually due. After the judgment in the court below the defendant obtained a discharge in bankruptcy, which was pleaded in bar to said judgment. The plaintiff claimed, at the hearing before the court, that the relation between the plaintiff and defendant was that of a pledgor and pledgee, and that such being the relation, the debt sought to bé recovered was created by the defendant while acting in a fiduciary character, and thus within the terms of said bankruptcy statute. The court held that the trust in that case did not constitute a fiduciary relation, and that the debt in that case was simply a debt by contract, and that the defendant sustained no fiduciary character to the plaintiff while acting, in which said debt was created. These defendants claim that the debt in the case at bar, likewise, is simply a debt by contract. In both this and the Massachusetts case, the defendants stood in the relation of pledgees, and in each case, by implication of law they were liable to the plaintiffs, to return to them or account for the pledged property, if any, there should be remaining after the debt or liability was extinguished for or on account of which said property was pledged. In each case the debt arose out of an implied contract. And it is claimed that the defendants, Clews and Fowler, sustained no fiduciary character towards the plaintiffs while acting, in which this debt was created. And it is claimed that the remarks of the supreme court of Massachusetts on this point are equally pertinent to the case at bar. Another ground of the decision in the Massachusetts case, was that the debt in that case was excluded from the class of fiduciary debts referred to in the statute, in consequence of the construction given by the United States supreme court in Chapman v. Forsythe (2 How. 202), to the phrase “ while acting in any fiduciary capacity,” which phrase the court considers the same as, “ while acting in any fiduciary character.” By the construction referred to, given by the United States supreme court, the phrase in question embraced cases of special, express or technical trusts of the same class as those enumerated in the bankruptcy statutes of 1841, viz.: ' “The defalcation of a ‘ public officer,’ ” “ executor,” “administrator,” “guardian” or “trustee,” and did not embrace implied contracts or those which the law implies from contract. The Massachusetts case decides the question, it would seem, upon what the court in Woolsey v. Cade, above cited, calls a “broader ground,” and stated in Chapman v. Fersythe in these words, “if the act embraces such a debt it will be difficult to limit its application. It must include all debts arising from agencies, and indeed all cases where the law implies an obligation from the trust reposed in the debtor. Such a construction would have left but a few debts on which the law could operate . . but this is not the relation spoken of in the first section of the act.” The other cases cited are to the same general tenor as the Massachusetts case, and the true construction of said section of the bankruptcy statutes should be deemed settled.
    V. The construction Of the bankrupt law (§ 5117, supra), must be the same in every State, without regard to the local law of the several States (Grover v. Clinton, 8 N. B. R. 489, by Judge Hopkins, coincided in by Justice Davis of the supreme court of the United States; Woolsey v. Cade, 15 Id. 239; Owsley v. Cobin, 15 Id. 489, decision by Chief Justice Waite, where, in the learned judge’s opinion, he adopts, in so many words, the reasoning and conclusions of these decisions).

      C. Bainbridge Smith, attorney, and of counsel for respondents, urged:
    I. The cause of action against the defendants is to recover of them damages for the unlawful conversion of the plaintiffs’ bonds (Code of Civ. Pro. § 549, subd. 2; Id. § 550, subd. 3).
    II. It is now well settled that where the right to an arrest is identical with the cause of action itself, the court will not try the merits upon affidavits, unless the defendant makes out clearly such a case as would entitle him to a nonsuit or a direction of a verdict in his behalf (Royal Ins. Co. v. Noble, 5 Abb. Pr. 54, 56, and cases cited; Merritt v. Hecksher, 50 Barb. 451; Faris v. Peck, 40 How. Pr. 484).
    III. So it is equally well settled that an arrest is not barred when a cause of action exists, on the ground that the plaintiff has accepted notes therefor (Shipman v. Shafer, 14 Abb. Pr. 447; Pettengill v. Mather, 12 Id. 436; Murphy v. Fernandez, 10 Bosw. 665; Harding v. Shannon, 20 How. Pr. 25).
   Per Curiam.

The finding upon the facts cannot be disturbed. Nor was the obligation on which the order of arrest was made, discharged by operation of the bankrupt act. There appeared on the argument to be a serious objection to granting an order of arrest in an action for an equitable cause. It was, however, answered, that the action, by the interlocutory judgment, had been turned "into a pure action at law. This seems to be sufficient, especially since no reversal of that interlocutory judgment can take place, the judgment having been affirmed.

Order affirmed, with $10 costs, and disbursements to be taken.


author: By the Court.—Sedgwick, J.

text:
    DAVID M. HUGHES, Plaintiff and Respondent, v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Defendant and Appellant.
    Before Sedgwick and Freedman, JJ.

      Decided March 14, 1879.
    Pleadings.—Practice.—Order requiring defendant to make ANSWER MORE DEFINITE AND CERTAIN.
    As a general rule, such an order is not appealable. Held, that in this case, the order made deprives the defendant of a substantial right. , '
    The parts of the answer objected to are confined to denials, and the substance and form thereof. There is no attempt to claim any affirmative right from the plaintiff. In no instance in which the order directs the amendment of the answer, is there any doubt or uncertainty that the answer either puts in issue or admits the corresponding allegations of the complaint. Held, that no amendment is possible which would make the denial or admission any clearer, and the defendant should not and cannot be compelled to submit to the constructions which the plaintiff makes in the complaint of the trust deed, which was the foundation of the action.
    The order should not have given the plaintiff leave, in case the defendants did not amend, to apply for judgment. The relief should not have extended beyond striking out the allegations complained of; for if these allegations were stricken . out, there was still an issue left to be tried before the plaintiff was entitled to judgment. This part of the order affects a substantial right of the defendant, and is appealable.

      Appeal by defendant from order requiring answer to be amended so as to make certain allegations more definite and certain.
    The court ordered in terms that the defendant make its answer definite and certain in four specified particulars, and stated the means by which the answer should be made so. The defendant was commanded to deny or admit “ directly and unequivocally ” three specified allegations in the complaint. As to a fourth allegation of the complaint the defendant was, in one supposed condition of the facts, ordered to deny a specific thing, and in another supposed condition of the facts it was ordered to admit or aver another thing. It was likewise ordered to make “ upon knowledge” one of the denials or admissions which it was ordered to make, and it was also ordered to make, “upon knowledge,” another denial which it had, in the alternative, the privilege of making.
    To these provisions of the order was superadded the penalty of allowing the plaintiff to apply to the court for judgment in case the defendant should make default in amending.
    From this order the defendant appeals.
    The pleadings are printed below, those portions of the answer to which the order applies being printed in italics:
    The complaint alleges : First—That the defendant, the Chicago, Milwaukee & St. Paul Eailway Company, is a corporation incorporated by and under the laws of the State of Wisconsin ; that it was incorporated under the name of “ The Milwaukee & St. Paul Eailway Company,” which name the legislature of the State of Wisconsin changed to that of “ The Chicago, Milwaukee & St. Paul Eailway Company;” 'that it has an office and place of business, and property, in the city of New York; that the causes of action herein set forth arose in the city of New York.,
    Second—That on or about November 30, A.D. 1864, the defendant, under the name of the Milwaukee & St. Paul Railway Company, became indebted to various persons and corporations in the sum of $1,500,000, which indebtedness was evidenced by the issue and delivery of its bonds in the sums of $1,000 each, to the amount above named, which bonds were dated November 30,1864, and each of them contained a promise to pay the bearer the sum of $1,000, lawful money of the United States, on October 1, A.D. 1884, with interest at the rate of seven per cent, per annum, payable semi-annually on the first days of April and October in each year, in the city of New York.
    That to secure the payment of said bonds the defendant executed, acknowledged and delivered a mortgage or trust deed, dated November 30, 1864, to John P. Yelverton, and to the plaintiff, a copy of which said deed, except the signatures thereto and the acknowledgment thereof, is hereto annexed, marked Exhibit A, to which the plaintiff refers, and makes the same a part of this complaint.
    That said Yelverton and the plaintiff accepted the trust established in and by said trust deed, and signed a certificate upon each of the above- described bonds.
    That since the execution and delivery of said deed, viz., on or about the day of , 1865, the said Yelverton died, leaving the plaintiff the sole surviving trustee ; that by the terms of said trust deed, all the powers and duties imposed in and by said deed, and all the compensations to be given for the performance thereof, devolved upon the plaintiff herein, as the survivor of said trustees.
    That it was mutually agreed in said trust deed, that the defendant, for the purpose of ultimately paying or reducing the bonds secured by said trust deed or mortgage, covenanted and agreed that it would, commencing on July 10, 1865, on or before the 10th day of October, January, April and July in each year, pay to said Yelverton and Hughes, trustees, or to the survivor of them, or to their or his successors or successor, as and for a sinking fund, the entire net income or earnings of the grain elevator erected by the defendant at Milwaukee, for the three months preceding the first day of each of said months above named.
    The plaintiff avers, that as he has been informed by the reports of said defendant, and otherwise, and he verily believes, the net income and earnings of said elevator, from July 10,1865, to February 1, 1878, without regard to interest thereon, was over the sum of $1,500,000, and more than sufficient to pay the entire mortgage debt due to the plaintiff as trustee.
    The net income or earnings of said elevator are shown by Exhibit B, hereto annexed, and made a part of this complaint.
    That in and by said trust deed, it was further agreed by the defendant, with the plaintiff, that he, the plaintiff, should receive from the defendant, for his services in applying the money derived from said payments promised to be made by defendant, the sum of one-half of one per cent, on the par amount of bonds purchased or canceled, exclusive of costs and disbursements, all of which, on reference to said trust deed, will fully a,ppear ; which one-half of one per cent, upon the $1,500,000 of bonds issued, amounts to the sum of $7,500.
    That plaintiff has always been ready and willing to perform the duties and trusts devolving upon him under said trust deed, and has often demanded of the defendant payment to him, as trustee, of the income of said elevator, in order that plaintiff might perform the duty of purchasing and canceling said bonds with said income, and otherwise comply with the provisions of said trust deed ; but said defendant has always refused to perform its covenants contained in said trust deed, and, disregarding its promises, covenants and agreements, as made therein, has never fulfilled its obligations therein made, and has never paid to the plaintiff the net income and earnings of said elevator, or any other sum; but that, contrary to its covenants and agreements, it has itself, or by others than the plaintiff, purchased or redeemed said bonds, or the larger part thereof ; the exact number is to the plaintiff unknown.
    All of which is to the damage of the plaintiff the sum of $7,500, with seven years’ interest thereon, on the average time from October, 1865, to this date ; amounting in all to the sum of $10,725.
    The answer is as'follows : Defendant admits that it is a corporation, incorporated by and under the laws of the State of Wisconsin; that it was incorporated under the name of the Milwaukee & St. Paul Railway Company, which name the legislature of the State of Wisconsin changed to that of the Chicago, Milwaukee & St. Paul Railway Company; that it has an office and place of business, and property, in the city of New York.
    It denies that the alleged causes of action in the complaint set forth arose in the city of New York, or arose at all.
    It admits that on or about November 30, A. D. 1864, it, under the name of the Milwaukee & St. Paul Railway Company, became indebted to various persons and corporations in the sum of $1,500,000, and that such indebtedness was evidenced by the issue and delivery of its bonds in sums of $1,000 each, and that said bonds were dated November 30, 1864, and that each of them contained a promise to pay the bearer the sum of $1,000, lawful money of the United States, on October 1, 1884, with interest at the rate of seven per cent, per annum, payable semi-annually on the first days of April and October in each year, in the city of New York.
    It admits that, to secure the payment of said bonds, it executed, acknowledged and delivered a mortgage or trust deed, dated" November 30, 1864, to John P. Yelverton and to the plaintiff, and it believes, according to its present information, that a copy of the said deed, except the signature thereto and the acknowledgment thereof, is annexed to the complaint, and marked Exhibit A, but, for greater certainty, it begs leave to refer to the original, when produced.

    It admits that said Yelverton and the plaintiff accepted the trust established in and by the said trust deed, and signed a certificate upon each of the above described bonds.
    It admits, that since the execution and delivery of said deed, the said Yelverton died, but avers, upon information and belief, that said Yelverton died on or about January 10, 1867, and denies that he died on or about the day of , 1865..
    And it admits that when the said Yelverton died, he died leaving the plaintiff the sole surviving trustee; but upon information and belief, it denies that by the terms of the said trust deed, all the powers and duties imposed in and by said trust deed, and all the compensation to be given for the performance thereof, devolved upon the plaintiff as survivor of said trustee, and although it says it is true that all the powers and duties imposed in and by sa,id deed would have devolved upon the plaintiff as srirvivor of the said trustee, if the plaintiff had continued to be competent to perform the duties of the said trust, or to perform the functions devolved upon the trustees in and by said trust deed.

      It denies that otherwise than as expressed in said trust deed, it was mutually agreed in said trust deed as is in that behalf in the complaint alleged, and for

      the accurate terms of the agreement in that behalf , this defendant refers to the said trust deed or mortgage.

      And upon information and belief, this defendant denies that the net income and earnings of said elevator, from July 10, A. D. 1865, to February 1, 1868, with or without regard to interest thereon, was over the sum of $1,500,000, or that it was more than sufficient. to pay the entire mortgage debt specified in the said mortgage; and, upon information and belief, it denies that the plaintiff has been so informed by the reports of this defendant, and it denies that the said entire mortgage debt is or was due to the plaintiff as trustee.
    And, upon information and belief, it denies that the net income or earnings of said elevator are shown by Exhibit B, annexed to the said complaint.

      And it denies that any agreement was made by this defendant with the plaintiff as to what the plaintiff should receive from the defendant, for his services, for applying the money derived from said payments promised to be made by the said defendant, as in said complaint in that behalf alleged, otherwise than as appears by the. terms of the said trust deed or mortgage.

    It denies that the plaintiff has always been ready and willing to perform the duties of the trust devolved ■upon him under said trust deed, and, on the contrary, it alleges that the said plaintiff, in and about the year 1864, became and was disqualified to act as trustee under said trust deed, or to perform the duties or trust devolving upon him under said trust deed.
    And, upon information and. belief, it denies that the plaintiff has often demanded of the defendant payment to him as trustee of the income of the said elevator, in prder that the plaintiff might perform the' duty of purchasing and canceling the said bonds with said income, and otherwise comply with the provisions oí said deed.
    And it denies that it has always, or at any time, refused to perform the covenants in said trust deed, or that it never has fulfilled its obligations therein made.
    It admits that it has never paid to the plaintiff the net income or earnings of said elevator, or any other sum.
    It admits that it has itself, or by others than the plaintiff, purchased or redeemed said bonds, or a larger part thereof; but it denies that such purchase or redemption has been or is contrary to its covenants and agreements : and whether or not the exact number of the bonds purchased or redeemed by itself or by others than the plaintiff, is unknown to the plaintiff, it denies any knowledge or information sufficient to form a belief.
    And it denies that any of the matters or things in the said complaint alleged are to the damage of the plaintiff in the sum of $7,500, with interest thereon, or otherwise.

      T. N. Bangs, for appellant.

      C. D. Ingersoll, for respondent.
   By the Court.—Sedgwick, J.

I regret that I am not able to agree to affirm the order appealed from. The order requires that the answer be made more definite and certain. As a general rule, such an order is not appealable. In this instance, however, I think it is impossible to make the pleading more definite than it is, in such respects as the defendant has a right to confine the pleading to, and that the order made deprives the defendant of a substantial right. The parts of the answer objected to are confined to denials, which put the plaintiff upon proof of his case, with perhaps one exception. There is no attempt to claim any affirmative right from the plaintiff. Now, to my mind, in no instance in which the order directs the amendment of the answer, is there any doubt or uncertainty that the answer puts in issue or admits the corresponding allegations of the complaint, and no amendment is possible which would make the denial or admission clearer. And in the instances referred to, I think the defendant had a right not to be forced to submit to the constructions which the complaint made of the trust deed which was the foundation of the action.

The complaint alleges “ that to secure the payment of” certain bonds the defendant executed and delivered a mortgage or trust deed, dated November 30, 1864, to J. P. Y. and to the plaintiff; a copy of which deed is “ hereto annexed,” to which the plaintiff refers, and makes the same a part of his complaint.

The answer admits the execution and delivery of a deed dated November 30, 1864, to J. P. Y. and the plaintiff, and “ it believes, according to its present information, that a copy of the said deed ” “is annexed to the complaint,” “ but for greater certainty, it begs leave to refer to the original, when produced.”

If there is any certainty as to the rules of pleading, it is certain that these allegations do not put in issue the fact of the deed. No denial, upon information and belief, or of any other kind, is attempted. As to the deed, it is certain that the answer requires no proof from the plaintiff. The answer reserves or claims a right to refer to the original, when produced. There is no uncertainty as to the terms of this claim. It does not affect any preparation that the plaintiff should make for trial. Whether the allegation is redundant or irrelevant was not discussed, nor did the motion below make a claim that it was. It appears to be an effort to claim a remnant of a right that a defendant had, to require before pleading the production of the deed itself, in order that among other things he might see the seal, the mode of execution and the witnesses. For before that sight he was not conclusively bound, as it is said he is now bound, to know whether or not he made the deed. In this present instance, it is to be remarked that the complaint avowedly omits the signatures and acknowledgment. If it were irrelevant or redundant, it would be simply stricken out on motion of a party aggrieved by it, but the order directed “ that the same be made definite and certain by the defendant directly and unequivocally denying or admitting on knowledge the alleged copy to be a true copy.” This order trenches upon the system of pleading in the Code, for that does not call for a direct and unequivocal denial or admission. There is a right of making no reference to the allegation of the complaint, and that, while it results with certainty in an admission, is not a direct admission. Moreover, in effect, the order relieves the plaintiff of something which at least is as much his duty as it is the defendant’s. Both sides admit the making of the deed. Why should the plaintiff call upon the defendant to verify the accuracy of the copy, or to admit or deny its accuracy, when he has himself already undertaken to vouch for the accuracy, by setting it out as a copy.

It seems to me, that substantial justice is with the defendant. The plaintiff places his rights solely upon the original deed. The defendant does not deny that a copy is annexed to the complaint, but only asks that, when produced, the original deed may be referred to.

I do not, however, think, if the order had not given leave (in case the defendant did not make this allegation certain) to the plaintiff to apply for judgment, that this part of the order would be appealable. No substantial right of the defendant would have been affected.

As to the next amendmént ordered, lam of opinion that the uncertainty and indefiniteness were on the part of the plaintiff, not of the defendant.

The complaint, had set out what was the agreement, by setting out the terms of the deed. It was unnecessary and redundant to re-state what was contained in it. It would have been proper for the plaintiff to allege that it was covenanted or agreed by a certain deed, &c., without setting out the terms of the deed. At the least, if he proceed to re-state the contents of the deed, he should do it in conformity with the terms of the deed, and accurately. But the complaint alleged that 11 it was mutually agreed in said trust deed that the defendant covenanted and agreed that it would pay to the trustees the net income of the grain elevator,” &c. It is hardly necessary to say that there was no mutual agreement that the defendánt covenanted, &c. It was a covenant by defendant. Probably this was a mere slip of the pen, but there was no obligation on the part of the defendant to correct the complaint, and in the exercise of an undoubted right, not evasively, but in direct accordance with" the truch and with no uncertainty of allegation, the answer denies that otherwise than as expressed in said trust deed, it was mutually agreed in said trust deed, &c., and justified by the incorrect allegation of the complaint says:' “for the accurate terms of the agreement in this behalf, this defendant refers to the said trust deed or mortgage. ’ ’ This also shows, that so far as the accuracy of the copy was concerned the defendant had a sort of justification for referring to the original, as was done in the former part of the complaint. This denial did not in any manner embarrass the plaintiff. The trust deed was enough for his action.

The next amendment refers to this part of the complaint, viz.: “that, as he has been informed by the reports of said defendant, and otherwise, and he verily believes, the net income and earnings of said elevator from, &c., without regard to interest thereon, was over the sum of $1,500,000, and more than sufficient to pay the entire mortgage debt due to the plaintiff as trustee.” It is evident that the allegations of the answer are definite and certain. They are “ and upon information and belief, this defendant denies that the net income and earnings of said elevator, &c., with or without regard to interest, was over the sum of $1,500,000,” “ or that it was more than sufficient to pay the entire mortgage debt specified in the said mortgage.” They may have the defects of a negative pregnant, but that does not imply indefiniteness. That was formerly attacked only by special demurrer, and in substance, it is an omission to deny some fact that may exist consistently with the negative allegation, and which is enough to give an action (1 Chitty's Pl. 536, 613). There is no doubt of the omission and no uncertainty.

But it is said that the defendant is bound to know ■ what was the income of the elevator, and should therefore allege what it was. If this be so, it does not tend to uncertainty in what is alleged. Nor is the presumption of knowledge any different in case of a corporation, than it is of a natural man. For the purpose of legal responsibility the owner of an elevator would be held to know what the income of it was, but he might not have actual knowledge. His agents might operate it. If he himself signed a note or deed, the nature of the act is entirely different.

It does not appear that any report of defendant was such as to bind them absolutely if there were a mistake as to the fact. The plaintiff’s rights do not rest upon the report, but upon the fact. One year, one set of officers may make a .report of the net income, which may be mistaken in amounts received, and in the amounts to be charged to ascertain the net income. Cannot another set of officers and even the same, allege that the net income was not as the report stated ? But, there is no presumption, but that the reports sustain exactly what the answer says by denial, that at least the income was not over a certain sum, alleged by the complaint. The answer, in making the alternative allegation, pursues, in my opinion, the usual and proper mode of pleading.

Another amendment relates to this part of the complaint, viz. :

That in and by said trust deed it was further agreed by the defendant, with the plaintiff, that he, the plaintiff, should receive from the defendant for his services in applying, &c., the sum of one half of one per cent, on &c:,. all of which, on reference to said trust deed, will fully appear, &c.

On referring to the trust deed, it appears that the agreement was that the trustees, their successors or survivors,' should have the compensation, the commissions to be in full payment of both trustees, and to be equally divided between them. This is not an agreement that the plaintiff, one of the trustees, shall have the compensation. The defendant might have simply denied the allegation, but instead thereof, says in certain definite and unequivocal language that he denies that there was any other agreement for compensation for the plaintiff’s services than such as the trust deed shows. The plaintiff, instead of being content with the unequivocal words of the deed, gives an erroneous construction of it, and cannot complain that the defendant takes proper means to prevent its being bound by that erroneous construction.

It should be noticed that here the plaintiff does what he has complained of the defendants doing. He says, “ all of which on reference to said trust deed will fully appear.”

In fine, I am not able to see how" the defendants could mkke his allegations more definite, whatever other objections you may suppose.

I am further of the opinion that the order should not have given the plaintiff leave, in case the defendants did not amend, to apply for judgment, and that the relief could not have gone beyond striking out the allegation. If these allegations were out, there was an issue left to be tried before the plaintiff was entitled to judgment.

I think the order should be reversed, with $10 costs and disbursements to be taxed.

Freedman, J., concurred.


text:
    ABRAHAM L. BATTERSON, Plaintiff and Respondent, v. SAMUEL T. W. SANFORD, Defendant and Appellant.
    Before Sedgwick and Van Vorst, JJ.

      Decided April 7, 1879.
    Examination of parties to an action before trial.
    An objection to giving testimony, on the part of a defendant before trial, on the ground that it would tend to criminate the witness, should be heard and passed upon at the examination itself.
    It should clearly appear, from the affidavits and papers upon which the order is founded, that it was the purpose of the moving party to use the testimony upon the trial.

    Affidavits that state that the plaintiff cannot safely proceed to trial without defendant’s deposition, that the testimony is material and necessary to enable plaintiff to prepare for the trial of, and to safely try the action; yet nowhere states that it is the intention of the plaintiff to use the deposition or the testimony on the trial are defective. They imply an intention not to use the testimony on the trial.
    Appeal from an order denying the defendant’s motion to set aside an order for the examination of defendant before trial.

      P. H. Vernon, for appellant, among other things urged:
    In every application for an order for the examination of an adversary before trial, the statutory conditions must be strictly complied with, and in case an order should be inadvertently made, without such compliance on the part of the applicant, it should be vacated even without regard to the merits of the application. Section 872 of the Code of Civil Procedure requires ‘1 the person desiring to take a deposition,” to present an affidavit setting forth among other things as follows: “4. . . . that the testimony of such person is material and necessary for the party making such application, or the prosecution or defense of such action,” but the affidavit of W. I. Butler, Esq., the attorney for the plaintiff herein, upon which the order in question was granted, fails to comply with this requirement. It only alleges that the testimony and examination of the defendants “are material and necessary to the plaintiff to enable him to prepare for the trial of, and to safely try this action, and to obtain justice between the said parties,” and such an allegation is not sufficient (Beach v. Mayor, &c., 4 Abb. New Cas. 236-240, supreme ct., gen. term reversing, 3 Id. 113). In this case, Davis, P. J., says: “An affidavit to obtain an order for an examination before trial, must comply with the statute and state the particulars required. The order should not be granted when sought for, mainly not as a deposition to be used on the trial, but as a means of ascertaining information to enable the applicant to loolc up other witnesses.

      W. I. Butler, for the respondent.
   By the Court.—Sedgwick, J.

I am of opinion that the learned judge held correctly, in the circumstances of this case, that although an objection to giving evidence that might tend to criminate the witness should be heard and passed upon in the examination itself, it was not sufficient ground for setting aside the order.

But it seems to me that the affidavit for plaintiff did not show that the defendant was to be examined as a witness before trial. They disclosed no purpose of using his testimony upon the trial, and this, I think, should clearly appear in every like case.

The affidavits say that the plaintiff cannot safely proceed to trial, cannot properly prepare for trial without defendant’s deposition, that the testimony is material and necessary to the plaintiff to enable him to prepare for the trial of, and to safely try this action ; but they nowhere show an intention to use the deposition on the trial. The intention not to use it, then, is implied.

For this reason, the order appealed from should be reversed, with $10 costs, and disbursements to be taxed.

Van Vorst, J., concurred.