text:
    RODNEY I. MASON, Plaintiff, v. PATRICK BRESLIN, Impleaded, etc., Defendant.
    [Decided April 30, 1870.]
    Plaintiff’s exception to a nonsuit ordered at the trial before the court and a jury may be ordered to be heard at General Term in the first instance.
    The cases in which the proceedings upon a trial before a court and jury can be reviewed at a General Term in the first instance, and before judgment, stated, and the practice relating thereto explained.
    In an action for rent due upon a written lease executed by two of four defendants named'in the complaint, parol proof offered by plaintiff of the existence of an understanding between Mm and all the defendants, to the effect that the lease should be executed by the first-named two defendants for the benefit of a copartnersMp to be formed between all the defendants, wMch partnersMp was subsequently formed, is not ■admissible for the purpose of fastening an original liability under the lease upon all the defendants.
    A defendant will not beheld liable for rent as equitable assignee of a lease, upon the ground of the privity of estate existing between him and the lessor, unless charged as •such in the action.
    Before Barbour, C.J., McCunn and Freedman, JJ.
    This case was tried before Mr. Justice Monell and a jury.
    The action was brought to recover a balance for rent due upon a lease under seal. The defendant Breslin, by separate answer, denied each and every allegation contained in the complaint.
    Upon the trial it appeared, before plaintiff rested his case, that the lease bore date the 17th day of October, 1868, and was executed by the plaintiff to the defendants, Thomas J. Stevens and Moses Isles; that the term was to commence on the 20th day of October, 1868, and to end on the 1st day of May, 1872.
    It further appeared that subsequently articles of copartnership were entered into between the defendants, Thomas J. Stevens, Moses Isles, Joseph Martin, and Patrick Breslin, bearing date October 20, 1868, and executed October 30, 1868, whereby & copartnership was formed between the four parties named therein, which was to commence on the 20th day of October, 1868, and to continue until May 1,1872. By these articles it was agreed that Breslin was to supply all the funds necessary for the purposes of the copartnership; that he should have the entire and exclusive management of the financial department; that Isles, Stevens, and Martin were to supply the lease above described; that all rents and expenses, however, should be equally discharged and all profits and losses equally divided between the partners. The firm, so composed, occupied. the premises described in the lease during the period for which rent was claimed. Plaintiff proved the amount of rent due under the lease; that the lease was made out before the formation of the copartnership, but not delivered until afterwards, and that the defendant Breslin had promised to pay the rent.
    The following questions were propounded to the plaintiff, on his direct examination:
    “Was it agreed between you and these defendants that Mr. Breslin should be in the concern?”
    “Did he ever say anything to you about his being a tenant in the premises ? ”
    These questions were severally objected to by the defendant, and excluded by the court. Plaintiff excepted.
    The plaintiff thereupon offered to prove that it was the understanding between the plaintiff and the defendant Breslin that the lease should be taken in the name of Stevens and Isles, for the benefit of the copartnership composed of the defendants.
    The court excluded the evidence, and plaintiff excepted.
    Plaintiff having rested, defendant moved for a dismissal of the complaint, which motion was granted. Plaintiff excepted, and a formal order was thereupon drawn up and entered, which, after setting forth the title, etc., reads as follows :
    “ This case coming on for trial before the court and a jury, and a motion being made by Freling H. Smith, of counsel for the defendant Breslin, that the complaint' herein be dismissed, it is ordered that said motion be granted, subject to the opinion of the General Term on a case and exceptions to be made by the plaintiff, the same to be heard in the first instance at General Term.” Plaintiff excepted.
    The order also directed a stay of proceedings until the decision at General Term.

      Mr. Taylor for plaintiff.
    The court erred in dismissing the complaint and ordering the exceptions to be heard in the first instance at the General Term. It is a mis-trial, and for that reason a new trial should be ordered (Hoagland v. Miller, 16 Abb. Pr. Rep., 104).
    “ That is only admissible when the case presents questions of law alone. This must be upon the whole case, and where there are no exceptions for the reception or rejection of evidence.” (By the Court, in banc, in Sackett v. Spencer, 29 Barbour, 188: see also Cobb v. Cornish, 16 N. Y., 605; 28 Barb., 283; 33 id. 614.)
    The parties have in such cases a right to a motion for a new trial, and the rule and the reason for it is the same, where the complaint is dismissed, or where a verdict is taken subject to the opinion of the General Term (Beebe v. Ayres, 28 Barbour, 283).
    The court erred in directing a dismissal of the complaint as to all the defendants.
    There was no question as to the liability of the defendants Isles, Stevens, and Martin, but only as to that of the defendant Breslin, who was the only one who defended in the action, or who appeared on the trial (7 N. Y., 3 Seld., 465; 17 Barb., 450).
    The complaint was improperly dismissed, for the farther reason that the evidence given, or offered and improperly rejected (which is the same as given for the present purpose), clearly proved a joint hiring of the premises by the defendant Breslin with his copartners the other defendants.
    This hiring is proven by .the positive and uncontradicted state, ment of the plaintiff, by the promise of defendant Breslin to pay the rent, his acknowledgment of his tenancy, the agreement that the written lease should be made to two partners for the benefit of the whole firm, and the agreement of the defendants between themselves.

      The joint hiring of the building by the defendant Breslin was part of the consideration upon which the written lease was executed to two of the firm composed of all the defendants, and renders Breslin liable (DeWolf v. Rabaud, 1 Peters, 500).
    On the occupation of the premises by the defendants the agreement between them and the plaintiffs became an executed agreement, and those on whose promise the plaintiff conveyed are liable for the rent (Gilsey v. Wild, and the other cases supra; DeWolf v. Rabaud, supra).

    The premises were acquired for the benefit of the partnership and occupied for partnership purposes, and by the rules of equity and the agreement actually made the lease was the lease of the firm (Parsons on Partnership, 364, ed. of 1867; 3 Kent’s Comm., 37).

      Mr. Freling H. Smith for defendant.
    This action was improperly brought against all the defendants; it should have been confined to Stevens and Isles, who owned the ' lease of the premises in question. The plaintiff in this action endeavors to recover on an instrument against a party who never executed or made any agreement with him in reference to the instrument. There is no privity between the plaintiff and defendant Breslin.
    The plaintiff at the trial introduced in evidence the articles of copartnership between the defendants, executed ten days after the lease took effect. It is difficult to discover what effect these articles can have in this action, as the plaintiff is no party to them, and at the time they were executed had no control over the premises in question, having previously leased the same to Stevens and Isles. But it appears from these articles that Breslin was to furnish the means to carry on the business, and Stevens, Isles, and Martin to supply the lease of the premises in question. Thus proving that even as between the defendants themselves, Breslin should be exempt from contributing anything in support of the lease, though it is .confidently asserted that if the agreement between the partners had been directly the reverse in reference to this lease, it would have had no bearing on this case, and ought not to have been admitted in evidence. These articles cannot be tortured into the construction of an assignment of the lease. They might have been dissolved by any one of the copartners at any moment (see Otis v. Sill, 8 Barb., 102, 122).
   By the Court:

Freedman, J.

It has been settled by a long series of decisions that there are but two cases in which the proceedings upon a trial before a court and jury can be reviewed at a General Term in the first instance, before judgment.

One is where the unsuccessful party desires to move for a new trial upon exceptions taken by him upon the trial, and the judge directs that such motion upon said exceptions be heard in the first instance at a General Term, and that the entry of judgment be suspended until the decision of the General Term. In such case the exceptions must be there heard in the first instance, and judgment there given under section 265 of the Code. Upon such hearing no question of fact can be discussed, nor the point that the verdict of the jury is against the weight of evidence (Hotchkiss v. Hodge, 38 Barb., 118). If the exceptions are sustained, the General Term will grant a new trial; if overruled, render final judgment.

The other case is, where, upon the trial, an uncontroverted state of facts is presented, involving only questions of law, without exceptions on either side to the reception or rejection of evidence, and the judge directs a verdict subject to the opinion of the court at a General Term (section 265). In form, the verdict may be directed in favor of one party or the other, and it is quite immaterial which. The only effect of rendering the verdict in favor of a party is, that it devolves on him to prepare the case upon which the General Term is to render judgment (16 N. Y., 605). Such a verdict suspends the entry of judgment until the decision at General Term (Gilbert v. Beach, 16 N. Y., 608; Roosa v. Snyder, 12 How., 286). Application for judgment must be made at General Term, and upon such application the question to be decided is never whether a new trial shall be granted, but which party, upon the conceded state of facts, shall have final judgment. The facts must be undisputed or specially found by the jury, for the General Term in such case has no right, of itself, to deduce facts from disputed or uncertain evidence (Cobb v. Cornish, 16 N. Y., 205; 6 Abb., 129; 15 How., 407; Gilbert v. Beach, 16 N. Y., 608; Purchase v. Matteson, 25 N. Y., 211; 15 Abb., 402; Havemeyer v. Cunningham, 8 Abb., 1; Beebe v. Ayres, 28 Barb., 283; Whittaker v. Merrill, 28 Barb., 526; Sackett v. Spencer, 29 Barb., 188; Bell v. Shipley, 33 Barb., 614; Porter v. Shepeler, 2 Bosw., 188; Brown v. Orser, 2 Bosw., 365; Chambers v. Grantzen, 7 Bosw., 414; Purchase v. New York Exchange Bank, 10 Bosw., 564).

In the case under consideration the order made at the trial term was drawn up in a very objectionable form, but is in effect an order directing that the exceptions be heard at General Term in the first instance, and must be considered and treated as such. The position assumed by the plaintiff on the argument, that the order is unauthorized for the reason that exceptions were taken by him to the exclusion of evidence, is, therefore, untenable. An objection upon this ground, as above shown, holds good only in a case where a verdict has been directed, subject to the opinion of the court at General Term. Eor is there any merit in the point discussed by the plaintiff, that a judge cannot nonsuit a plaintiff and order plaintiff’s exception to such ruling to be heard in the first instance at a General Term, and that such disposition of the case amounts to a mis-trial, for which reason a new trial should be ordered. The decision to this effect of the Supreme Court in Hoagland v. Miller (16 Abb. Pr., 104) was subsequently reversed by the same court in Lake v. The Artisan’s Bank (17 Abb. Pr., 237), and by the Court of Appeals in Huntingdon v. Claflin (38 N. Y.,182).

Section 265 of the Code contains no limitation restricting the exceptions which may be directed to be heard at General Term in the first instance, to a particular class taken at the trial. An exception to the granting of a motion for a nonsuit or dismissal of the complaint stands upon the same footing as an exception taken by the plaintiff to the judge’s rulings in the admission or rejection of evidence ; and where the judge at the same time directs a suspension of the entry of j udgment, the exception to the order of dismissal is not an exception to the final judgment or decision of the action, for such final disposition of the case is made by the General Term, if the exceptions are overruled. In such case all the exceptions will be heard together at General Term.

, The order dismissing the complaint operates as a dismissal against the defendant Patrick Breslin only, and can in nowise prejudice plaintiff’s rights against the other defendants, who have not appeared in the action.

Having disposed of the questions of practice involved in this case, I will now consider the questions presented by the exceptions taken at the trial.

The provisions of the second title of chapter seven of part two of the Revised Statutes, entitled Of fraudulent conveyances and contracts, relative to goods, chattels, and things in action ” (3 Rev. St., 5th ed., p. 221), have no application to contracts concerning lands or any interest therein (Young v. Dake, 1 Seld., 463; Taggard v. Roosevelt, 2 E. D. Smith, 100; 8 How., 141).

Such contracts are regulated by the first title of the same chapter, which is entitled “ Of fraudulent conveyances and contracts, relative to lands ” (3 Rev. St., 5th ed., p. 219), and section 8 «of this title provides, that every contract for the leasing of a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made.” Under this section it is not necessary that the promise of the purchaser or lessee should be in writing (Thomas v. Dickinson, 12 N. Y., 364, reversing 14 Barb., 90).

As a general rule, one who is neither described as a party to a written contract, nor executes it, cannot be sued thereon. There must be a privity of contract. Under this rule, which binds a man to do as he has agreed, a covenantor is liable upon his covenant precisely as upon any other contract. But in regard to contracts concerning real property a further rule exists, which, when applicable, makes third persons personally liable. It applies usually in the case of a covenant running with the land, whenever there is a privity of estate between the parties, and especially to contracts of lease or demise. Such privity of estate, although not existing between a lessor and undertenant, exists between a lessor and the assignee of the lessee, who has acquired by assignment the whole estate which the lessee had in the premises. In a case of this description the contract comes to the assignee by force of the assignment, and makes him liable to fulfil all the stipulations and covenants contained on the part of the lessee in the original lease, which run with the land as a burden. An agreement to pay rent is a covenant of this kind (see Constantine v. Wake, argued at a General Term of this court held in March, 1869, and cases there cited).

It has also been repeatedly held by this court that the equitable assignee of a lease, who as such has entered into possession and occupied the demised premises, is liable for the rent accruing during such occupancy (Astor v. Lent, 6 Bosw., 112; Morton v. Pinckney, 8 Bosw., 135).

Such assignment may be established by presumptive evidence which remains unexplained and uncontradicted. In the absence of any evidence of the agreement under which parties entered into the possession of demised premises, subsequent to the lessees, if it is shown that they occupied during the whole of the unexpired term of the lease, the fair presumption is that they entered for the whole of such unexpired term; and as such an interest is given, not by an underlease, but by an assignment; the presumption must be that the occupants are in as assignees and not as undertenants (Bedford v. Terhune, 30 N. Y., 453).

But, on the other hand, an action at law for the recovery of rent due upon a lease cannot be maintained against a defendant in the occupation of the demised premises and charged as assignee, when, upon the trial, such defendant rebuts the presumption of an assignment arising from the fact of his occupation by positive proof that, in point of fact, no assignment of the lease was ever made to him, and that consequently no legal estate became vested in him. In such case plaintiff must seek his remedy in equity (Quackenboss v. Clarke, 12 Wend., 555; Astor v. Lent, 6 Bosw., 617).

According to these decisions the proof introduced by plaintiff upon the trial of this action might- probably be held sufficient to charge the defendants, Breslin included, as equitable assignees of the lease in the first instance; and in this aspect of the case the evidence offered, but excluded, might probably be admissible for the purpose of showing that it was the intention of all the defendants from the very beginning that their firm, when formed, should become such equitable assignees. But the evidence excluded was not offered for any such purpose, nor did the complaint contain an averment of an assignment of any kind. Plaintiff did not proceed against the defendant Breslin upon any such theory, but attempted to fasten upon Breslin an original liability by parol proof that an understanding existed between him and Breslin, to the effect that the lease should be taken in the- name of Stevens and Isles, for the benefit of the copartnership to be formed by all the defendants. This he could not do. There are some cases, it is true, in which it has been held that where a written contract has been fully executed, so that, irrespective of the writing, an action may be maintained against a party who has had the benefit of the contract, such party may under certain circumstances be held liable. Where the action, however, is based upon the writing itself as in the present case, a plaintiff cannot travel outside of it, or contradict or alter it by parol proof, • and consequently cannot recover against a party not named in the writing (Fenly v. Stewart, 5 Sandf., 101; Williams v. Christie, 10 How., 12).

It is equally clear that plaintiff cannot recover in this action for use and occupation under the statute (3 Rev. St., 5th ed., p. 37, sec. 20), for that applies only to cases where the relation of landlord and tenant had subsisted by some agreement not under seal.

The plaintiff having failed to move for and to obtain leave to amend his complaint by the insertion of proper averments charging defendants as assignees of the lease, cannot now be permitted to insist that the rulings of the learned judge presiding at the trial were erroneous.

Plaintiff’s exceptions must be overruled and judgment ordered for defendant, dismissing the complaint.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    ASA HALL, Plaintiff and Appellant, v. JOHN EMMONS et al., Defendants and Respondents.

      [Decided April 30, 1870.]
    An order allowing bail to surrender the principal in their exoneration is appealable.  A motion cannot be renewed upon the same or substantially the same facts without leave of the court for that purpose obtained. The practice upon this point stated.
    Before Monell, McCunn, and Freedman, JJ.
    Appeal from an order made at Special Term by Ohief-Jnstice Barbour.
    The action was brought upon an undertaking executed by the defendants John Emmons, Jr., and Hanford Smith, upon the arrest of the defendant James L. Paine, under an order of arrest granted in an action wherein the plaintiff herein was plaintiff and the defendant James L. Paine was defendant. Upon affidavits showing that said James L. Paine, had surrendered himself to the sheriff, without disclosing, however, the precise time of such surrender, and that he was insolvent, the defendants in this action, on the 27th day of January, 1870, procured an order requiring the plaintiff to show cause the next day why the action should not be discontinued, or why the defendants should not have time to plead to the complaint therein, or why they should not have such further or other order or relief as to the court should seem meet. On the return day plaintiff appeared by counsel, and showed that a similar motion had been made in the same action during the preceding August Special Term of the same court held by another judge; that on that occasion defendants, upon substantially the same grounds, had moved “ for a discontinuance of the action as to all the defendants, and that the defendants Smith and Emmons be absolutely released and discharged from all liability and responsibility upon or incurred by virtue of the undertaking, etc., or for such other order or relief in the premises as to the court shall seem meet and proper; ” but that the court, after a hearing of all parties, had denied the motion upon the merits and in all its parts.
    Plaintiff, therefore, contended that defendants could not renew the motion without leave first obtained for that purpose.
    The objection was overruled and an order made, under the prayer for other and further relief contained in the order to show cause, that the defendants have leave to surrender the defendant James L. Paine, within ten days, into the custody of the sheriff.
    From this order plaintiff appealed.

      Mr. Stephen A. Walker for appellant.
    The order is appealable.
    The leave given to surrender their principal in effect determines the action against them by affording them a complete defense, and it affects a substantial right of plaintiff (Code, § 349, subds. 3 and 4; Bank of Geneva v. Reynolds, 33 N. Y., 160, reversing upon this point, same case, in 12 Abb., 81).
    Prior to the time when the motion was made which terminated in the order now appealed from, the same application on the same state of facts had been made to the court (McCunn, J., presiding), and said application having been refused, the order entered thereupon was a complete and perfect defense as a preliminary objection to this second application.
    Compare present affidavits and order to show cause and former affidavits and order to show cause; also order.
    Upon this point Court Rule 23 is conclusive.
    “ If any application for an order be made to any judge or justice, and such order be refused in whole or in part, or be granted conditionally, or on terms, no subsequent application upon the same state of facts shall be made to any other judge or justice; and if upon such subsequent application any order be made it shall be revoked * * * ” (Mills v. Thursby, 11 How., 115; Cazneau v. Bryant, 4 Abb., 402).

      The peculiar hardship in the order below, granting leave to surrender under the prayer for other relief in the teeth of the order of McCunn, J., lies in the fact that, as appears by clerk’s certificate, the affidavits submitted to that justice on the first motion have been mislaid. The purport of those affidavits, which cannot be replaced, was that defendants were not entitled to surrender their principal under the familiar rule that having received security for their liability, they were not entitled to the special favor which the court extends to sureties.

      Mr. Alexander H. Reavey for respondents.
    The order appealed from is clearly a discretionary order, and is non-appealable (Sec. 191, Code of Procedure).
    The decision of a preliminary objection can never be judicially deemed a bar to a second application upon the same statement of facts, upon the merits.

    The notice of appeal should have particularly and specifically set out the grounds of appeal (Sec. 330, Code of Procedure; Kelsey v. Western, 2 Comstock’s Rep., 500).
    The two motions are not alike. The first motion was denied 1 upon the ground that the defendant Paine had volunta/rily surrendered himself more than twenty days after the commencement of this action, without amy order of the court.

    The second motion was granted, simply allowing Paine to be surrendered within ten days, and upon it appearing that he was insol/oent, which fact did not appear upon thq first motion.
    The courts have always favored the granting of relief to bail, and there is no reason why this case should be an exception.

       Reversed by Court of Appeals, 1870.

   By the Court:

Freedman, J.

In the case of the Bank of Geneva v. Reynolds, 33 N. Y., 160, the Court of Appeals held that an order allowing bail to surrender the principal in their exoneration is appealable, for the reason that it affects a substantial right, and in effect determines the action and prevents a judgment from which an appeal might be taken. Such being the law of this case, and it appearing from the record that the first motion was made upon substantially the same, if not stronger grounds, as the second motion, I am of the opinion that the order appealed from, which granted under the general prayer for relief a relief not specifically asked for and not forming a strictly legitimate object of the principal motion, should not be permitted to stand. The first motion was decided after a hearing of all parties upon the merits, and denied in all its parts. Leave to renew was neither reserved nor subsequently applied for. Before and since the Code it has been the practice that a special motion cannot be renewed upon the same or substantially the same facts without leave of the court for that purpose obtained (Mitchell v. Allen, 12 Wend., 290; Dollfus v. Frosch, 5 Hill, 493; Allen v. Gibbs, 12 Wend., 202; Willett v. Fayerweather, 1 Barb., 73; Bellinger v. Martindale, 8 How., 113; Cazneau v. Bryant, 4 Abb., 402; Snyder v. White, 6 How., 321; Mills v. Thursby, 11 How., 114; Smith v. Spalding, 30 How., 339).

Thus, it has been held that a party cannot, by omitting to enter the order, obtain a right to renew a motion (Peet v. Cowenhaven, 14 Abb., 56).

It is undoubtedly true that the decision of a motion is not to be condsidered as res judicata, and that there are special occasions on which a motion may be reheard, for instance when the order is unappealable; but as a matter of orderly practice it should never be done except upon leave. When that is applied for it is discretionary with the court to allow a renewal of the motion, on the same or additional papers, and its decision in this respect will not be reviewed upon appeal (White v. Munroe, 12 Abb., 357; Smith v. Spalding, 30 How., 339; Adams v. Bush (No. 2), 2 Abb. N. S., 112).

But leave will not be given to renew a motion to enable a party to insist on facts known to him, but not insisted upon at the hearing of the original motion (Pattison v. Bacon, 12 Abb., 142; 21 How., 478), and the discovery of new evidence even in support of the matter previously urged has been held to give no absolute right to a renewal of the motion (Hoffman v. Livingston, 1 Johns. Ch. R., 211).

As a general rule, however, leave will not be withheld if in the circumstances of the opposition there is anything to excite suspicion of unfairness, or a belief that the moving party was taken by surprise.

By rule 23 of the general rules, it is further provided that if any application for an order be made to any judge or justice, and such order be refused in whole or in part, or be granted conditionally or on terms, no subsequent application upon the same state of facts shall be made to any other judge or justice; and if upon such subsequent application any order be made, it shall be revoked, etc. By sec. 401 of the Code, an application for an order is styled a motion, and the same section refers to motions which can only be made upon notice as well as to such which may be made without notice. Sec. 400 provides that the term order ” shall include every direction of a court or judge made or entered in writing, and not included in a judgment. The construction, therefore, of the 23d rule above referred to, in connection with secs. 400 and 401 of the Code, would seem to lead to the conclusion that the rule applies to motions on notice as well as to ex-parte applications; and, inasmuch as such application of the rule to motions will greatly tend to maintain and perpetuate the harmony and kind feeling which should always exist between members of the same court, attorneys should not be permitted to disregard it. If the defendants in this case felt aggrieved by the first order they might have appealed or applied for a reargument. They declined to do either.

The order appealed from should therefore be reversed, with costs.


text:
    ANN HODNETT, Plaintiff and Respondent, v. MacPHERSON SMITH et al., Defendants and Appellants.

      [Decided April 30, 1870.]
    The change in the law, which allows parties to be witnesses, has not changed the rule that the execution of an instrument under seal must be proven by the subscribing witness.
    Consequently, where the attendance of the subscribing witness cannot be had, proof of due diligence, such as would govern a prudent man in a sincere search for the witness, is still necessary.
    If such proof be satisfactory, the signature of the witness may be proven; and when it appears that this cannot be done, and not before, proof may be given of the handwriting of the party who executed the instrument.
    Before Monell, McCunn, and Freedman, JJ.
    This case was tried before Hr. Justice Jones and a jury.
    Appeal from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from an order made at Special Term denying defendant’s motion for a new trial upon a case.
    The complaint alleged a conversion by defendants of plaintiff’s property, consisting of the contents of a liquor store.
    The defendants, by their answer, justified, under executions issued against John Hodnett, plaintiff’s husband, and claimed that the property levied upon and taken was, at the time of such levy,, the property of said John Hodnett, or that said John Hodnett had an interest therein liable to levy and sale under execution.
    Hpon the trial it appeared that John Hodnett had hired the whole house, including the liquor store, and conducted the liquor business at said store up to within about five weeks prior to the-levy; that he had executed a chattel mortgage upon the contents of the liquor store to William Harney, which was foreclosed that upon the sale under said mortgage the property was knocked down to William Hoofing, who agreed with Mr. Ryan, plaintiff’s brother, to convey it to the plaintiff; that Rvanadvanced the necessary funds for that purpose, and that William Dooling, within a few days after his purchase and shortly before the levy, did convey the said property to plaintiff for an alleged consideration, which yielded him a profit of ten dollars for his trouble. The main point involved in the case, as the court charged, was, whether the various transactions were a mere device by which the wife should be put forward as being the ostensible, whereas, in fact, the husband still remained the real owner, or whether it was a bona fide transaction, whereby the title to this property became vested in the wife absolutely, as her own property.
    To substantiate her claim plaintiff offered in evidence a bill of sale of said property, executed by William Dooling to her under seal, and which purported to have been sealed and delivered in the .presence of one J. C. Wadsworth as subscribing witness. The evidence showed said Wadsworth to be an attorney-at-law, who, at said time, had his office in Duane street, in the city of Hew York. William Dooling proved his own signature, and testified that he did not know where J. C. Wadsworth was. Counsel for plaintiff then called as a witness Florence Leary, who, upon this point, testified as follows:

      “ I know Hr. Wadsworth. I believe he is out in Omaha. He is subscribing witness to the bill of sale.”
    Q. By the Court: How do you know he is in Omaha?
    A. I heard he had left and went there.
    Q. Who did you hear it from ?
    A. A bookseller he used to deal with told me, and I heard it from a friend of his, Hr. Benedict, in his office, who told me he had gone out there.
    Counsel for defendants objected on the grounds that the paper was not proved—that the subscribing witness should prove it — that his absence was not excused.
    The court overruled the objection and admitted the bill of sale, to which ruling defendants’ counsel duly excepted.

      Mr. Aaron J. Vanderpoel for appellants. .
    The court erred in admitting in evidence the bill of sale from William Pooling to the plaintiff.
    It was not properly proven (Griffin v. Story, 1 E. D. Smith, 153; Jones v. Underwood, 28 Barb., 481; Hallenbeck v. Fleming, 6 Hill, 303; King v. Smith, 21 Barb., 158).
    The change in the law which allows parties to be witnesses, does not alter or dispense with the rule (Jones v. Underwood, 28 Barb., 481; Griffin v. Story, 1 E. D. Smith, 153).
    The absence of the subscribing witness was not accounted for (Van Dyne v. Thayre, 19 Wend., 162; Fry v. Bennett, 1 Abb., 289; 4 Duer, 247; People v. Hadden, 3 Denio, 220).
    The belief of Leary that Wadsworth was at Omaha, was not competent, nor any evidence of his absence.
    And why were not the parties from whom he heard that Wads-worth had gone, called %

    When did he go \

    Had he not returned %

    The statements of the bookseller and Benedict were not evidence (see cases above cited).
    The court erred in admitting in evidence the testimony of William Pooling, as to the value of the property.
    The verdict of the jury is against the weight of the evidence.

      Mr. C. A. Henriques for respondent.
    It was in the exercise of a sound discretion that the learned judge, before whom this cause was tried, allowed the plaintiff to recall her witnesses and go into the proof of her case in rebuttal.
    The order of proof is wholly in the discretion of the judge, and his decision thereon cannot be reviewed on appeal (Bedell v. Powell, 13 Barb., 183; Makim v. Anderson, 11 id., 215; Sheldon v. Wood, 2 Bosw., 267).
    Where the plaintiff has rested and the defendant has disproved his case, whether the court will permit the plaintiff to make out a new case réfets in its discretion, and its decision cannot be reviewed (Shephard v. Porter, 4 Hill, 205, note a ; Leland v. Burnett, 5 id., 286).
    If the defendants were entitled to a nonsuit when the plaintiff rested, the defect of proof was cured if she subsequently established her case.
    The court will not disturb a verdict on the ground that the proof was insufficient when the nonsuit was moved for in cases where the deficiency was afterwards supplied (Schenectady and Sar. R. R. Co. v. Thatcher, 11 N. Y., 102-112; Hunt v. Maybee, 7 N. Y., 266-273; Hunt v. Harcourt, 33 Barb., 491-3; Hearsey v. Pruyn, 7 Johns., 179; Colgrove v. N. Y. & H. R. R. Co., 6 Duer, 382; Schwerin v. McKie, 5 Robt., 404).
    If any evidence, on the part of the plaintiff, of the lona Jules of the transaction were offered, the motion for a nonsuit was properly denied.
    Upon a sale to a wife of personal property in the possession of her husband, while they are living together, no manual change or handling is necessary to vest the title in her or to complete the delivery (Allen v. Cowan, 23 N. Y., 507).
    On a motion for a new trial, when there is evidence on both sides, and the jury were not misdirected, on a question of fraud, the court will not set aside their verdict, fraud being a question of fact for the decision of the jury.
    There was no misdirection on the part of the learned judge before whom this cause was tried; but even if there were, the defendants cannot raise an objection to it here, none having been taken at the trial (Cook v. Hill, 3 Sandf., 341).
    The bill of sale was properly admitted; the objection to its reception, that the absence of the subscribing witness was not excused, is not good.
    The witness swears he was told by a Mr. Benedict, in Ms office (the absent witness’ office), that he had gone to Omaha. Answers given to inquiries made at a place where the witness may be expected to be found, may be given in evidence; they are not hearsay (1 Greenleaf on Ev., § 574).

      The application of the rule is in the discretion of the judge (id., note; Cook v. Husted, 12 Johns., 188-9, where this identical point is decided).
    Had the objection been taken that no proof of the subscribing witness’ handwriting had been offered, it would have been easily obviated; it cannot now be raised on appeal.
    A party shall not be permitted, on a motion for a new trial, to' avail himself of an objection made on the trial, unless the ground of objection is so particularly stated as to enable the opposite party to supply, if possible, the alleged defect (Merritt v. Seaman, 6 Barb., 330-5, and cases there cited; Fountain v. Pettee, 38 N. Y., 185-6, and cases there cited; Stoddart v. L. I. R. R. Co., 5 Sandf., 180, 191).
    But even if the bill of sale were improperly admitted, there was sufficient evidence alvwnde, of the sale, delivery, and payment introduced without objection, to sustain the verdict (Robertson v. French, 4 East., 137).

   By the Court:

Freedman, J.

The bill of sale was an important piece of evidence, and well calculated to exercise a strong influence over the jury. H no sufficient foundation was laid for its introduction, an error was committed by receiving it in evidence. Being an instrument under seal, there can be no question that plaintiff was bound to prove its execution by the subscribing witness, or to show by competent evidence that he could not be produced, or was incapable of being examined (Hollenback v. Fleming, 6 Hill, 303, and authorities therein cited), unless the change in the law, which allows parties to be witnesses, has altered the rule or afforded a reason for dispensing with it. That such is not the case has been distinctly held by the Supreme Court and the Court of Common Pleas (Jones v. Underwood, 28 Barb., 481; Story v. Lovett, 1 E. D. Smith, 153; see also King v. Smith, 21 Barb., 158). I can see no reason why this court should hold otherwise. Proof of due diligence, such as would govern a prudent man in a sincere search for the subscribing witness, is, therefore, still necessary to let in secondary proof (Van Dyne v. Thayre, 19 Wend., 162). Where the failure to produce the subscribing witness has been satisfactorily accounted for, the genuineness of the signature of such witness may be proven; and when it appears that this cannot be done, and not before, proof may be given of the handwriting of the party who executed the instrument (Willson v. Betts, 4 Dea., 201; McPherson v. Rathbone, 11 Wend., 96). In the present case no objection was made upon the ground of the absence of proof as to the genuineness of the signature of the subscribing witness, and consequently it cannot be raised on appeal for the first time. But the objection that the absence of the witness had not been accounted for was distinctly taken. Upon examination of the case I am unable to find any evidence tending to show that plaintiff used due diligence, or any diligence whatever, to procure the attendance of the subscribing witness. In fact, there is no evidence that plaintiff made or caused to be made any effort in this direction. It does not appear that Leary was authorized or requested to look for such witness. He simply swears that he believes the witness went to Omaha, because a bookseller and a friend of the witness had told him so, but does not show that these persons knew or were in position or likely to know the fact. Hor does he specify the time of the receipt of this information. No circumstance is stated from which either the fact or the time of the departure of the witness could be reasonably deduced. For all that appears the witness might have gone and returned at least one year before the trial. This is clearly insufficient.

• The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellants to abide the event.


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    JOHN McCLAVE, Plaintiff and Appellant, v. WILLIAM H. PAINE, Defendant and Respondent.

      [Decided April 30, 1870.]
    To entitle a real estate broker to recover the usual commission, it must appear that his agency was, in point of fact', the procuring cause of the sale. Whether his agency did or did not have such effect, is a question of fact to be determined upon the particular circumstances of each case.
    After a defendant has introduced evidence to the effect that the purchaser’s information was not derived from the broker, the latter is not entitled to have the jury instructed, substantially, that they might find a verdict in Ms favor solely upon proof of a bare introduction of the purchaser to the defendant. In such case the jury must further find upon the evidence that the broker, either by the introduction itself, or in some other manner, called, or caused to be called, the attention of the purchaser to the property in question.'
    Before Monell, McCunn, and Freedman, JJ.
    This case was tried before Judge Jones and a jury.
    Appeal from a judgment entered upon the verdict of a jury.
    The action was brought for the recovery of the usual broker’s commission for an alleged sale of certain real estate.
    The answer in effect amounted to a general denial of all the allegations contained in the complaint.
    Upon the trial, it appeared in evidence that in October, 1867, the defendant placed in the hands of the plaintiff, a real estate broker, five distinct pieces of property for sale on commission, among which were half a block on the north side of Ninety-first street, between Eleventh and Twelfth avenues, and two blocks between Sixty-sixth and Sixty-seventh streets, Tenth avenue, and the Hudson river. That plaintiff sold the Ninety-first street property to William T. Blodgett, and received from the defendant his commission therefor.
    That subsequently the property on Sixty-sixth and Sixty-seventh streets was sold by the defendant to William T. Blodgett for $200,000; that plaintiff, upon hearing of said sale, demanded a commission of one per cent, on that amount, which defendant declined to pay.
    Plaintiff introduced evidence to the effect that he had a particular interview with Blodgett in regard to the Ninety-first street property, at which he told Blodgett that defendant had other pieces of property, without specifically naming them, however; that he requested Blodgett to call upon the defendant, and to purchase whatever piece might suit him; that he gave defendant’s address to Blodgett, and that he sent a diagram of the property situate on Sixty-sixth and Sixty-seventh streets to Blodgett’s house, together with a diagram relating to the Ninety-first street property.
    William T. Blodgett, called as a witness on behalf of the defendant, testified that he never received plaintiff’s diagram relating to the property on Sixty-sixth and Sixty-sevonth streets; that his attention was not called to it by the plaintiff, nor to the fact of its being defendant’s property, and for sale ; that he first became aware of these facts from defendant himself after the purchase of the Ninety-first street property; that the negotiations for the purchase of the property on Sixty-sixth and Sixty-seventh streets were conducted entirely between himself and defendant; that at the time plaintiff showed him a map of the Ninety-first street property, plaintiff spoke also of some lots on Seventh avenue, but did not mention any other, and that plaintiff never used the expression to him that defendant had other property for sale, etc.
    The jury, under the charge of the court, found a verdict for the defendant.
    Judgment was entered thereon for the defendant, and plaintiff appealed.

      Mr. Albert Stickney for appellant.
    To entitle a broker to recover commissions on a sale, two things are necessary:

      “ First, He must establish his authority to act as the agent or broker of the defendant, either by previous employment, or by the acceptance of his agency, and the adoption of his acts as such.

      “Second, He must show that his agency was the procuring cause of the sale ” (Murray v. Currie, 7 Carr. & Payne, 584; Wilkinson v. Martin, 8 id., 1; Chilton v. Butler, 1 E. D. Smith, 150).
    And the Court of Appeals, in another case, say, after reciting the facts:

      “ Upon these facts, who was the procuring ca/use of the sale ? And to whose agency was it due?

      “ This question the plaintiffs are entitled to have answered,”' etc. (Briggs v. Rowe, 4 Keyes, 442).
    And in the case of Stillman v. Mitchell, decided in this court, and affirmed in the Court of Appeals, the court say:

      “ It is sufficient for a broker, in order to entitle himself to commissions on a sale, to produce to his principal & purchaser with whom he is satisfied, and with whom he completes the ba/rgañn, for making which the broker was employed as an agent.

      “ The only conditions precedent to a right to recover are, the original discovery of the purchaser, and the starting of the negotiations by the broker, and a final closing of the bargain, by or on behalf of the principal ” (Stillman v. Mitchell, 2 Robertson, 538).
    “ The plaintiff would be fully entitled to recover such amount, if he brought the parties together, and the negotiation was closed by an agreement;” or, in the language of the third request to charge, “ if Blodgett was first introduced by the plaintiff to the defendant, and this introduction led ultimately to the sale to Blodgett;” it being clear from the conversation of the plaintiff with the defendant, which is wncontradicted, that the parties were introduced for the purpose of this sale or negotiation.

      “ When a broker produces a proper party ready to make the purchase, at a price satisfactory to the principal, he performs his undertaking, and is entitled to his commissions, unless the principal has already parted with the property ” (Moses v. Bierling, 31 N. Y., 464).

      The point is utterly immaterial whether the broker gives the purchaser the knowledge, with his own lips, or the lips of the defendant. If the broker is the “ procuring cause ” of the purchaser getting that knowledge from the seller; if the broker brings the parties together for the express purpose of having the seller gire the purchaser this knowledge, and bri/n,g the property to his attention, as is the uncontradicted fact im this case, then surely he earns his commission as completely as he can in any event.
    ISTow, although the plaintiff may not himself have apprised Blodgett of the fact that this specific piece of property was for sale, yet it is clear and uncontradicted that (in the language of the decision) “ it was through the plaintiff’s mstrwnentality that Blodgett was apprised of the fact.” For he sent Blodgett to the defendant for that express purpose, and before the parties met, as is undisputed, told Paine he had sent him for that purpose, and directed Paine to sell him any of the pieces in his hands. “ Who procured this purchaser if the plaintiff did not ? ”
    And this application of the case shows the correctness of the second and third requests to charge :
    “ That if the parties were brought together by the plaintiff, and afterwards a sale was completed by the defendant and Blodgett, with the intervention of no other party than the plaintiff, the plaintiff is entitled to recover.”

      Mr. Henry H. Anderson for respondent.
    There was no error in the charge of the judge at the trial. It correctly states the law as to each proposition made by the plaintiff’s counsel, and neither of the exceptions to the charge disclose any error on the part of the judge (Cole v. Chilton, 1 E. D. Smith, 150; Barnard v. Mannot, 3 Keyes, 203).
    The jury found as matter of fact, that the plaintiff did not bring this property to the knowledge of the purchaser, and this court will not disturb the finding of the jury as to the question of fact.
   By the Court:

Freedman, J.

The appeal being from the judgment, no question of fact can be considered, nor the point that the verdict of the jury is against the weight of evidence. The only questions open for review are questions of law. They all arise upon or in connection with the charge of the learned judge presiding at the trial, and his refusal to charge certain requests made by plaintiff. Unless he erred in the application of the law, the judgment appealed from must be affirmed. There was a conflict of evidence as to whether the plaintiff did or did not, prior to the sale by the defendant, call the attention of the purchaser to the property for the sale of which plaintiff seeks to recover a commission. The purchaser most emphatically denied it. From the whole charge of the court, it clearly appears that the question was fairly submitted to the jury. They found the fact in favor of the defendant, and this finding cannot be disturbed. The real and only question involved in the appeal, concisely and tersely stated, is whether the plaintiff was entitled, as the evidence stood, to have the jury charged, that if they found that, although the purchaser was first introduced by plaintiff to defendant for a different purpose, which was accomplished, the acquaintance thus brought about between the parties led ultimately, without further intervention of the plaintiff, to the sale of the property in question, the plaintiff was entitled to recover.

Inasmuch as the fact of such original introduction was admitted, this proposition, if charged, would have been equivalent to a direction to find a verdict for the plaintiff. In my judgment, it would have been error so to charge. It is now the settled law of this State, that in case of a general employment of ,a broker, where his title to commissions is not made expressly to depend upon his securing a purchaser on terms which are specified, the only conditions precedent to the broker’s right to recover are the original discovery of the purchaser, the starting of the negotiations by the broker, and his bringing the minds of the vendor and the vendee to an agreement. When he has done that, when he has produced a purchaser, willing and ready to accept the terms of the owner, and able to perform the obligation on his part, he has earned his commissions. He can do no more. He has no power to execute a contract, to pay the money for the one side, to convey the land on the part of the other, or to compel the performance by either of their duties. To be enabled to maintain his action for his compensation it is, therefore, not necessary that the agreement for the sale of the property should have been reduced to writing and signed by the parties. And it is further settled that, after the broker has thus discovered the purchaser, and started negotiations between him and the owner, the latter cannot avail himself of the services of the broker so far rendered, and then, by taking the negotiations into his own hands, effect a sale, either at the price suggested to the broker, or at a reduced price, and refuse payment of commissions. Eor can the owner, in a case of this description, deprive the broker of his commissions by revoking the broker’s authority to complete the transaction (Stillman v. Mitchell, 2 Robertson, 523, affirmed 36 N. Y., 237; Barnard v. Monnot, 3 Keyes, 203, S. C., 33 How., 440). Thus, where a broker employed to make a sale, under an agreement for the exclusion of all other agencies, produced a party ready to make the purchase at a satisfactory price, it was decided that the principal can neither relieve himself from liability by a capricious refusal to consummate the sale, nor by a voluntary act of' his own, which disables him from performance (Moses v. Bierling, 31 N. Y., 462). And in another case, recently decided by the Court of Appeals, it was held that a real estate broker is entitled to the usual commission for a successful negotiation of the exchange of property put in his hands for sale, when the exchange has been effected through his aid and the terms of the exchange have been accepted by his employer (Redfield v. Tegg, 38 N. Y., 212).

But although courts have thus at all times protected a broker against any unfairness or fraud on the part of the owner, no case can be found in which the lare fact of an introduction by a broker authorized to sell has, in case of a subsequent sale, been held sufficient, per se, to entitle the broker to his commissions. I concede that if a broker, employed to sell certain property, sends a party contemplating to buy to the owner, with reference to that property, and the introduction ultimately results in a sale, he is entitled to his commissions, although he did not describe the property to the purchaser. But the case is entirely different if a broker, intrusted by the same owner with the sale of three or more distinct pieces of property, calls the attention of a party contemplating to buy to only two of them, and prevails upon him to see the owner with reference to the purchase of the one or the other, which is done. Suppose the broker intentionally omitted to mention the other pieces ? He might have, or fancy that he could procure, another' and more desirable party for them, and designedly withhold the information in regard to them. Upon what principle, then, could he claim commissions for a sale which took place contrary to his wishes, intentions, and calculations ? An owner does not preclude himself, by employing a broker, from making personal efforts to sell. He has a right to make them, and if they result in a sale the broker cannot find fault, unless some right previously acquired by him is violated thereby. If they amount to such violation, the courts will interfere. Thus, an owner may sometimes make himself liable to the payment of double commissions if he makes an express but different contract with two brokers separately, and each of them fully performs what he has undertaken to do; but, on the other hand, where an owner agrees with two brokers, separately, to. pay a commission, but only one commission, to the broker effecting the sale, and a sale results therefrom, only one of the brokers can be entitled to it. So, where a party contemplating to buy has a prior knowledge of the facts communicated to him by the broker, and acts solely upon such prior knowledge, and entirely uninfluenced by anything the broker has said or done, the broker does not earn a commission.

The true rule, which has been applied in every case to be found in the books, is, that to entitle a broker to recover it must appear that his agency was, in point of fact, the procuring cause of the sale (Briggs v. Rowe, 4 Keyes, 424). Whether his agency had or had not snch effect, is a question of fact to be determined upon the particular circumstances of each case. Proof on the part of the plaintiff that he sent the person who subsequently became the purchaser to the owner, may sometimes be deemed sufficient to establish this fact prima facie, but, after the defendant has introduced evidence to the effect that the purchaser’s information was not derived from the broker, the latter cannot rest his entire case exclusively upon a bare introduction. He must go further, and show at least that he called, or caused to be called, the attention of the purchaser to the property in question. Plaintiff’s exceptions, therefore, are not well taken.

The judgment appealed from should be affirmed with costs.


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    CHARLES H. DABNEY et al., Plaintiffs and Respondents, v. SIMON STEVENS et al., Defendants and Appellants.

      [Decided April 30, 1870.]
    An exception taken at the trial by the respondent is improperly incorporated into the printed case, unless its insertion canbe justified by the existence of a special reason therefor.
    A person dealing with an officer of a corporation, whose duties are regulated by the by-laws, is chargeable with notice of his authority, and of the limitations and restrictions upon it, contained in the act of incorporation and by-laws.
    Where neither the president nor the secretary of a manufacturing company, nor both combined, possessed the power to issue drafts, or to negotiate drafts drawn by them in the name of the company, the latter cannot be held liable except upon proof—(1) that a general or particular authority for that purpose was conferred by the board of trustees upon the president and secretary, or either of them; or (2) that the conduct of the company was such as to create a well-founded belief that such general or particular authority had been delegated; or (3) that the acts of such agents, although unauthorized, were subsequently ratified by the board of trustees.
    Such delegation of authority, or subsequent ratification, may be either express or implied.
    But a subsequent ratification will not be inferred in the absence of proof showing that the board of trustees had notice or knowledge of the unauthorized acts of the company’s agents.
    The liability imposed by statute upon trustees of manufacturing companies for neglecting to make and file an annual report, is in the nature of a penalty for misconduct in office. The penalty imposed is the debt of the corporation.
    In an action of this description, the burden of proof is upon the plaintiff to establish that the debt was contracted by the corporation.
    Before Monell, McCunn, and Freedman, JJ.
    The action was brought against the defendants as trustees of the Simpson Water-proof Manufacturing Company, upon an alleged liability incurred by them, in consequence of their failure to make, file, and publish the annual report required by law.
    The answers of the defendants, as amended on the trial, put in issue all the material allegations of the complaint.

      The issues were referred to a referee to hear, try, and determine the same, who found as follows:

      “ I find as a matter of fact that on the first day of February, 1864, the above-named defendants filed in the office of the clerk of the city and county of Hew York a certificate or acknowledgment, under chapter 40 of the Laws of the State of Hew York, passed February 17, 1848, and the laws amendatory thereof, and also filed a duplicate of said certificate in the office of the Secretary of State of Hew York, as required by said laws, whereby the said defendants became a corporation in fact and in name, by the name of “ The Simpson Water-proof Manufacturing Company,” the name stated in said certificate as the title thereof, with the usual powers, rights, and duties conferred in and by the acts aforesaid.

      “ That in and by said certificate it was certified, among other things, that the principal part of the business of said company was to be carried on in said city and county of Hew York (where the chief office of the said company was to be established), and also the corporated name of said company, the objects of its formation, the terms of its existence, and the number of shares of which the stock should consist, and also" that the number of the trustees to manage the concerns of said company should be five, and that the names of those who should manage the concerns for the first year were, Edward L. Simpson, Simon Stevens, Edward Learned, Courtlandt P. Dixon, and William Palmer, the defendants above named, and the persons who signed and acknowledged said certificate. That no election of trustees ever was held, and the above-named defendants, never having resigned or retired from their said trusteeship, continued to be and were the trustees of said company from its formation until after the time that the indebtedness hereinafter mentioned was incurred.
    “ That between the 13th day of March, 1865, and the 5th day of June in the same year, the plaintiffs in the action, at the request of the president and secretary of the said company, accepted certain drafts drawn by said company upon the plaintiffs, for the amounts and upon the terms and conditions specified and set forth in the complaint in this action, and especially upon the condition that the said company should place said plaintiffs in cash funds to meet said acceptances at maturity.’
    “ That the said drafts so accepted by the said plaintiffs were duly paid by them as they became due.
    “ That the said company put the said plaintiffs in funds to meet the said four drafts as they became due, except the draft dated June 5, 1865, drawn by said company for $4,000, which became due on the 7th day of August, 1865, which last-mentioned draft the said company failed to pay, or to put the plaintiffs in funds to pay according to said agreement, except the sum of $985, and the said draft being paid by the said plaintiffs as aforesaid, a balance of $3,115 became and was due to them from defendants on the 1st day of September, 1865, no part of which has ever been, paid to the plaintiffs.

      “ That the said company failed to make a report within twenty days of the 1st day of January, 1865, or within twenty days of the 1st day of January, 1866, and publish the same in a newspaper published in the said city of Hew York, stating the amount of its capital, and the proportion actually paid in, and the amount of its existing debts, and signed-by the president and a majority of its trustees, and verified by the oath of the president and secretary, and file the same in the office of the clerk of the city and county of Hew York, as required by the acts aforesaid.

      “ And I find as matters of law that on the 1st day of September, 1865, the said company were justly indebted to the plaintiffs for the said sum of $3,115.
    “ That in consequence of the failure of said company to make and publish and file the reports aforesaid required by section 12 of said act, within twenty days from' the 1st day of January, 1865, and from the 1st day of January, 1866, the said defendants as such ti’ustees became and are jointly and severally liable for all debts of said company existing at the time said reports should have been made, published, and filed respectively, or which have been contracted since that time, including the said indebtedness-so due to the plaintiffs as aforesaid, and that the plaintiffs are entitled to judgment against said defendants for said sum of $3,115, with interest thereon from the 1st day of September, 1865, amounting to the sum of $933.97, making in all the sum of $4,048.97, and the costs of this action.”
    The defendants duly excepted to the referee’s findings of fact and conclusions of law.
    Judgment was entered in conformity with the findings of law of the referee, and the defendants, Learned, Dixon, Palmer, and Stevens, appealed.

      Mr. Albert Stickney for appellants Learned, Dixon, and Palmer.
    The liability of the trustees sought to be enforced in this action is a penal liability, and consequently the plaintiffs should be held to the strictest proof of their case (Merchants’ Bank v. Bliss, 35 N. Y., 412).
    The statute creating these manufacturing corporations places the management of their property and concerns in the board of trustees.

    The corporation acts then by its trustees, and in no other way.
    The words of the statute aré: “ There shall be not less than three nor more than thirteen trustees in each company, who shall manage the stock, property, and concerns thereof.”
    How, we of course make no question that the trustees, acting as a board of trustees, could draw these drafts and bind the company, even if the company never had a penny of the money, or ¡any advantage from it.
    And the trustees could bind the company by their drafts, ■either—
    (1) . By previously authorizing them; or,
    (2) . By subsequently ratifying them.
    And, moreover, such previous authority, or subsequent ratification, might be either express or implied.
    But in one way or other there must, in order, to bind the company, be action of the trustees, either prior or subsequent, express or implied.

      “ When a charter invests a hoard with the power to manage the concerns of a corporation, the power is exclusive in its character. * * * It is one of the fundamental conditions into which the corporators have entered by becoming members of the corporation, that its concerns shall be managed in the manner prescribed by the act of incorporation, and from this no essential departure can be made ” (McCullough v. Moss, 5 Denio, 575).

    And this principle is one of the fundamental points of the law of corporations, and needs no authorities to sustain it.
    Undoubtedly, subsequent ratification by the trustees would be just as conclusive on the company as prior authorization, and either would be just as binding when implied as when express.
    But, in some shape or other, the trustees must act. And the plaintiffs have made out neither of these points,'neither prior authority nor subsequent ratification, either express or implied.
    Stevens was merely president. McEwen, at this time, was merely secretary.

    The acts of an officer out of his duty are no more binding than those of a stranger (National Bank v. Norton, 1 Hill, 572).
    In the present case no one of the trustees besides Stevens ever had any knowledge of the drafts, either before or after they - were made.
    And the court say in McCullough v. Moss, that “ the presence, or, indeed, the actual interference of individual directors would be ineffectual to make a ratification.” “ The concurrence of a majority of the board when duly assembled is requisite to constitute a valid act.” “ The ratification of an unauthorized transaction can never be inferred from the acts of the very officers or agents by whom it was made.”
    If there were in the present case any pretence of a ratification, it is at most a ratification by Stevens alone.
    It is decided again and again that neither the president nor the secretary has authority, as such, to make notes to bind the company (7 Wendell, 31; 3 Bosworth, 600).
    The calling McEwen “ manager ” has no bearing on the points of the case. This was so in McCullough v. Moss, and the court held it of no effect.
    McEwen says it was done by direction of Stevens himself.
    Stevens was directed by resolution of the trustees “ to employ McEwen in such capacity as he shall deem desirable for the interest of the company, and at a salary at the rate of $1,500 per annum.”
    It would be a novelty to maintain that this resolution could authorize Stevens to make McEwen take on himself duties larger than those of Stevens himself—the duties of the whole board of trustees, and of the treasurer.
    Moreover, McEwen was at the time of these drafts secretary, which revoked any previous employment by Stevens, even if it had been binding on the company. Mow, the by-laws of the company provide the regular duties of the secretary. They also provide the regular duties of the treasurer; and there was a regular treasurer.
    It was the business of the treasurer, if it was the business of any single officer, to sign those drafts. The by-laws expressly gave him the financial duties, and' took them away from the president and secretary.
    A by-law of a corporation, enacted under the express authority of an act of the legislature, and in conformity with the power conferred, has the same force as if it were enacted by the legislature” (Brick Church v. Mayor, N. Y., 5 Cowen, 538; McDermott v. Board of Police, 5 Abb. Pr., 422).
    In the present case there had been three transactions in all, the present suit being brought on account of the last one.
    Mow, even if there had been a long series of these drafts and payments by Stevens and McEwen, the effect would be nothing at all, as far as concerned the company, or the other trustees.
    If the trustees could have been shown so to have sanctioned the making of drafts by the secretary for a long period, there would be implied authority. But nothing of the kind appears.
    The appellants here cannot be met by the point that the referee has found, as a matter of fact, that the company made this draft.

      Even if it were a finding of fact, it would be reversible by the General Term, in case of clear error.
    But in this case there is not the slightest conflict of evidence. Both sides admit every particle of evidence in the case. Ho single circumstance contradicts any other single circumstance.
    There is not a particle of evidence that the corporation made this draft, or paid any of the prior ones, or that it made the agreement.
    The whole finding of the referee is utterly unsupported, and is a general finding, which is a mistake in law.
    If this case had been tried before a jury, the court would have been bound to dvrect a verdict, one way or the other. There is no dispute of a single fact.

      Mr. Dudley Field for appellant Stevens.
    The corporation was never liable upon any of these drafts. They never authorized the agreement nor the borrowing of the money, nor did they ratify the same, nor is there any proof that the money ever came to their possession (Hoyt v. Thompson, 5 N. Y., 334; 19 N. Y., 213; Lawrence v. Gebhard, 41 Barb., 575; Jackson v. Campbell, 5 Wend., 574; Partridge v. Badger, 25 Barb., 147; Olcott v. Tioga R. R. Co., 27 N. Y., 546; Beers v. Phenix Glass Co., 14 Barb., 358).
    The draft in suit, the balance of which is sought to be recovered, was not an original draft, but was a renewal. It differs in its terms from the other drafts in evidence. The first and second were made payable to the order of “ ourselves,” the third to the order of “ R. M. McEwen, Secretary and Manager,” while this is made payable to the order of myself. It is indorsed by McEwen, and the words “Simpson Water-proof Manufacturing Co.” on the back must be rejected.
    The plaintiff having accepted the renewal, waived any liability of the corporation (if any existed), except such as is imposed by the terms of the renewal.
    If the corporation was liable at all upon the renewal draft, it could- be liable only as indorser, and there is no pretence that the draft was protested.
    The plaintiffs have mistaken their remedy. They dealt with Stevens and relied upon his guarantee.
    He may be liable upon that, bat the corporation was never liable upon this claim, and the defendants, who are sued jointly, as trustees of the company, are not liable.

      Mr. W. D. White for respondents.
    All the questions raised by the separate answer of the defendant Stevens have been overruled by the decisions of this court in prior actions of a similar character (McHarg v. Eastman, 35 How., 205; Bank New Haven v. Bliss, 1 Rob., 391).
    All the questions of limitation of actions or objections to right of action raised by the separate answer of the defendants, Learned, Dixon, and Palmer, have no application or have been overruled by the above cited cases.
    All the questions raised by the defendants on the trial were obviated by their own evidence, and shown by themselves to be unfounded and irrelevant.
    The alleged want of authority of the secretary and manager to sign the name of the company to the drafts was not raised by their answer, nor taken when the drafts were given in evidence (Garrison v. Howe, 17 N. Y. R., 461).
    The objection of want of authority either in Stevens as president to negotiate with the plaintiffs, or in McEwen as secretary and manager to draw the drafts under the direction of the president, both going together to obtain the acceptances, and McEwen also indorsing the name for the use of the company, is not set up in the original answer of either of the defendants, and is manifestly an after thought, taken after the plaintiffs rested, and probably suggested by finding in the book of minutes one resolution authorizing the treasurer to borrow $5,000 on the notes of the company; but whether he did so or not was not proved, nor do the by-laws regui/re any resolution to borrow money; on the contrary, the defendant Stevens advanced to the company $30,000 without previous resolution, and part of which was paid out of part of the proceeds of these drafts upon the plaintiffs, nor does the amendment allowed by the referee, without being verified, add anything to its force; besides, the reported cases show that the secretary is the usual officer of such corporations, to sign its name to checks, notes, etc.; but as the defendants have themselves proved that the money was raised and used for the business and in payment of the debts of the corporation, they have, therefore, adopted and ratified the transaction; the objection not only has no foundation, but is fraudulent (Beers v. Phœnix Glass Company, 14 Barb., 358; Bissell v. Michigan S. R.R., 22 N. Y. R., 264, 279; Bank of Genesee v. Patchin Bank, 13 N. Y. R., 316; Hoyt v. Thompson, Exr., 19 N. Y. R., 208, 216; Aiken v. Blanchard, 32 Barb., 527).
    The evidence of the parties defendant was contradictory, and mostly disproved by each other, and the report of the referee on questions of fact will not be reviewed.
   By the Court:

Freedman, J.

The appeal papers submitted in this case have been prepared in a very objectionable form. They contain not only all the exceptions taken by the four appellants, which are very numerous, fiut also the exceptions of the respondents, which are equally numerous. Such practice, being calculated to mislead, imposes upon the court at General Term much additional and superfluous labor. This should not be done. An exception taken during the progress of a trial by a party who finally succeeded, is improperly incorporated into the printed case, unless its insertion can be justified by the existence of a special reason therefor. I have, however, carefully examined the whole case as submitted, and the examination thus made has led me to the conclusion that the evidence was insufficient to authorize the referee to find as matters of fact that the drafts in question were drawn by the company, upon the condition, among others, that the company should place the plaintiffs in cash funds to meet their acceptances at maturity, and that the company put the plaintiffs in funds to meet the four drafts as they became due, except the draft dated June 5, 1865, for $4,000, which became due on the 7th day of August, 1865, which last-mentioned draft the said company failed to pay, or to put the plaintiffs in funds to pay, .except the sum of $985, etc. If these findings of fact can-mot be sustained, it follows as a necessary consequence that the referee’s conclusions of law based upon these facts must also fail.

It has been repeatedly held that the liability imposed by the statute upon trustees of manufacturing companies for neglecting to make and file an annual report, is in the nature of a penalty for misconduct in office. The penalty imposed is the debt of the corporation (Bird v. Hayden, 2 Abb. Pr. R., N. S., 61; McHarg v. Eastman, 35 How., 205; Merchants’ Bank v. Bliss, 35 N. Y., 412, affirming 1 Robertson, 391).

Plaintiffs should be held, therefore, to strict proof of their case, and the burden of proof was upon them to establish that the debt was contracted by the corporation.

A corporation aggregate, being an artificial body—an imaginary person of the law, so to speak—is, from its nature, incapable of doing any act, except through agents, to whom is given by its fundamental law, or in pursuance of it, every power of action it is capable of possessing or exercising. The acts of such agents, in order to be binding upon the corporation, must, as a general rule, be done in the line of such agency, and within the limits of the authority conferred on them (Hartford Bank v. Hart, 3 Day, 493; Wyman v. Hallowell and Augusta Bank, 14 Mass., 62; Bellows v. Same, 2 Mass., 31; Salem v. Gloucester Bank, 17 Mass., 1).

Thus an agreement of the president of a private corporation was held not to be evidence against the corporation without something from which it could be inferred to have been within the scope of his authority (Pa. Supreme Court, Farmers’ Bank of Bucks Co. v. McKee, 2 Pa. St. R., 318).

The statute under which manufacturing corporations may be organized places the management of their property and concerns in a board of trustees to be chosen for that purpose. This power is exclusive in its character. It is one of the fundamental conditions into which the corporators enter by becoming members of the corporation, that its concerns shall be managed in the manner prescribed by the act of incorporation. From this no essential departure can be made (McCullough v. Moss, 5 Denio, 575). The corporation, therefore, can only act by and through its trustees. The duties and powers of the president, who must be one of the trustees, and of such subordinate officers as the corporation may, by its by-laws, recognize, are generally regulated by the by-laws, and persons dealing with such president or any such officer are chargeable with notice of his authority, and of the limitations and restrictions upon it contained in the act of incorporation and by-laws. There is no grant of general powers in the name by which an officer may be designated, whether he be called superintendent or president or general manager (Adriance v. Roome, 52 Barb., 399).

In the case at bar, the by-laws of the Simpson Water-proof Manufacturing Company were adopted at the first meeting of the board of trustees. They provided that the officers of the company shall consist of a president, a secretary, and a treasurer. The respective duties of these officers were also clearly defined. It was made the duty of the president to preside at all meetings of the stockholders and trustees, and to oversee, under the direetion of the trustees, the manufacturing, selling, and all other operations of the company and its subordinate officers. It was made the duty of the treasurer to keep the moneys of the company, to deposit them in a bank designated by the trustees, and to disburse them under the direction of the trustees / but it was expressly provided that no money should be paid unless in pursuance of a vote of the trustees, and upon checks signed by the treasurer and countersigned by the president. The duty of the secretary was defined to be, to keep all the books and papers of the company, and to record the doings of the trustees. Eeither the president, therefore, nor the secretary, nor both combined, possessed the power to bind the company by making the drafts in question or negotiating with the plaintiffs for their acceptance, except upon proof that the board of trustees had conferred either a general authority to borrow on the company’s credit upon them or either of them, or a particular authority in respect to the drafts in question, or that the conduct of the company was such as to create a well-founded belief in the plaintiffs ■that such genera] or special power had been delegated, or that the acts of said agents, although unauthorized, were subsequently ratified by the board of trustees. Such delegation of prior, general or special, authority, or such subsequent ratification, might be either express or implied, but, in order to bind the company, action of some kind, in some shape or other, on the part of the trustees was indispensably necessary.

Thus it has been held that, whenever a corporation have a board of directors, under whose general supervision and control the business of the corporation is transacted, an agent, who attends to the daily routine of business and its management under all ordinary circumstances, has no authority, by virtue merely of his agency, to make a contract creating a general hen upon the personal property of the company, to secure money borrowed, but such contract must receive the approval of the board of directors. A general agent might be deemed vested with power to make such contracts, when necessary, in the intervals of corporate meetings, if the corporation had no other board of control but the agent; but if they have such a board, under whose control the agent was acting, such a contract by the agent without their sanction is not binding (Vermont Supreme Court, 1848; Whitwell v. Warner, 20 Vt., 425).

The evidence given on both sides in the case at bar presents no conflict of any consequence. It shows that the drafts were drawn by the secretary, simply because the president ordered him so to do, and that thereupon they were negotiated by the president for his private benefit; that neither of the defendants, Learned, Dixon, or Palmer, had any knowledge of any of the transactions which took place between plaintiffs and the president and secretary, or either of them, prior to the commencement of this action, and that the entries regarding the said drafts and the account with the plaintiffs were not made on the books of the company until after the expiration of a year or more after the last transaction. It also appeared that plaintiffs, who had had previous private dealings with Simon Stevens, the president, but none with the company, accepted the drafts on the faith of the personal guarantee of said Stevens, executed at the time and without inquiry as to his authority to bind the company, and that the funds received by plaintiffs to be applied in payment of the said drafts were furnished by Stevens for that purpose without any knowledge on the part of his co-trustees. Stevens himself testified that he had no authority from the company to borrow money, or to give the drafts, or to make the contract with the plaintiffs which he did make; that he never informed his co-trustees of his transactions with the plaintiffs until some months after the maturity of the last draft; that he originally advanced about $30,000 to the company, a great portion of which he repaid to himself out of the proceeds of these drafts. Upon this uncontroverted state of facts it seems clear that, within the principles decided in the case of Claflin v. The Farmers’ and Citizens’ Bank (25 N. Y., 293), the acts of President Stevens were wholly unauthorized, and therefore void as against the company. In the case last cited it was held that the power conferred upon the president of a bank by the by-laws to certify checks did not authorize him to certify his own checks; that such act on his part was characterized as a palpable excess of authority, and it was said that any person taking the paper was bound to inquire as to the power of the agent so to contract. The same rule was asserted in the case of Gould v. The Town of Sterling, and Harin v. The Town of Genoa (23 N. Y., 452, 464). In Beers v. Phœnix Glass Co. (14 Barb., 358), the facts proved warranted the inference that the transactions of the secretary, who also acted as treasurer, were directly authorized. The same remark applies to the case of the Bank of Genesee v. Patchin Bank (13 N. Y., 316); and Aiken v. Blanchard (32 Barb., 527) was decided purely upon a question of evidence. The three last-named cases, therefore, do not aid the plaintiffs.

The evidence, in my judgment, is also insufficient to show a subsequent ratification, either express or implied. The president and secretary certainly were not competent to ratify their own unauthorized acts (Mich. Supreme Ct., Hotchin v. Kent, 8 Mich., 526). The company, it is true, might have done so. No express vote seems to be necessary to a ratification by a corporation of the unauthorized acts of an agent. A ratification may be inferred from corporate acts, inconsistent with any other supposition than that the corporation intended to adopt and own the acts done in their name (Conn. Supreme Ct., Howe v. Keeler, 27 Conn., 538).

Thus, a ratification may be inferred from the acquiescence of the directors or other governing body of the corporation; from the fact that after the facts have been brought to their knowledge they have taken no measures to show dissent; from the fact that they did not question the accounts submitted; from the fact that they kept the proceeds or retained the benefits of the unauthorized acts of the agent (Houghton v. Dodge, 5 Bosw., 326; Woodbridge v. Proprietors of Addison, 6 Vt., 528; Hoyt v. Thompson’s Exrs., 19 N. Y., 208; Olcott v. Tioga R.R. Co., 27 N. Y., 546; Walworth Co. Bank v. Farmers’ Loan and Trust Co., 16 Wis., 629; Farmers’ and Citizens’ Bank v. Sherman, 6 Bosw., 181).

But in all these cases the board of directors or trustees had full ■knowledge of the facts, and I have been unable to find a single case in which a subsequent ratification has been inferred without proof that the board of directors or trustees had such knowledge. On the contrary, it has been held in several cases that it must be shoujn by the party asserting such ratification that the resolution or acts of the corporation, or of their directors or trustees, relied on as constituting the ratification, were performed with a full knowledge of all the material facts necessary to an understanding of their rights (Cal. Supreme Ct., Blen v. Bear River, etc., Co., 20 Cal., 602; Md. Ct. of Appeals, Cumberland Coal, etc., Co. v. Sherman, 20 Md., 117).

And where the ratification by a corporation of-the unauthorized contract of their agent consisted in their having received the consideration of the contract, it was held that it must be shown that the corporation, through its proper officer or officers, knew the terms of the contract, and on what account the consideration was by them received (Md. Ct. of Appeals, Pennsylv., etc., Steam Nav. Co. v. Dandridge, 8 Gill. & J., 248; Corn Exch. Bank v. Cumberland Coal Co., 1 Bosw., 437).

As the evidence in this case unmistakably shows that, with the exception of the president, none of the trustees ever had any knowledge or notice of the unauthorized transactions which took place between said president and the plaintiffs until about the commencement of this action, and that the said unauthorized acts have not in any manner been ratified by an affirmative corporate act, the mere fact that the president, probably in extenuation of his otherwise inexcusable conduct, testified that he originally advanced about $30,000 to the company, a great portion of which he repaid to himself out of the proceeds of the drafts issued by him, cannot, in the absence of proof that the company had recognized this indebtedness, that the loan had become due, that the said president had actually given credit to the company for the proceeds received, and that the company had notice thereof, be construed into a ratification on the part of the company on the ground of acquiescence.

Finally, it seems to me equally clear that the defendants cannot be held liable upon the ground that the conduct of the corporation was such as. to create a well-founded belief in the plaintiffs that the president had either a general or special power to issue and negotiate the drafts. There was no proof that the president had been in the habit of borrowing of the plaintiffs in the name of the company, and that such loans had been ratified by the company, or that it was his custom of borrowing of other persons; that his act, in this respect, had been ratified by the company, and that these facts were known to the plaintiffs at the time they made the loan (Martin v. Great Falls Manufacturing Co., 9 N. H., 51). The evidence did not disclose any corporate acts from which plaintiffs could have inferred such authority; but it showed that plaintiffs, because they had neither prior dealings nor any acquaintance with the company, accepted the drafts, almost exclusively, upon the faith of the individual guarantee of the president. Hor can the plaintiffs invoke the application of the rule laid down in the North River Bank v. Aymar (3 Hill, 262), Griswold v. Haven (25 N. Y., 601), and N. Y. & N. H. R. R. Co. v. Schuyler et al. (34 N. Y., 73), namely, that where the principal has clothed his agent with power to do an act, upon the existence of some extrinsic fact, necessarily and peculiarly within the knowledge of the agent, and of the existence of which the act of executing the power is itself a representation, a third person dealing with such agent in entire good faith, pursuant to the apparent power, may rely upon the representation, and the principal is estopped from denying its truth to his prejudice. There is no evidence showing, or tending to show, that the plaintiffs have been misled by the exercise of any such apparent power. The referee erred, therefore, in finding, as matters of fact, that the drafts were drawn by the company, and that the company failed to provide plaintiffs with the necessary funds to the extent claimed by them. For this reason the judgment cannot be sustained against the defendants. I have looked at the question whether the judgment cannot be sustained against the defendant Simon Stevens, but have become satisfied that, as to him, it must also be reversed. He is sued as trustee, sought to be charged as a trustee, 'and the whole case was tried on the assumption of his liability as a trustee for misconduct in office. Ho attempt was made to charge him upon his guarantee. It was no part of plaintiff’s cause of action, and he cannot be charged' upon his guarantee, except by a change of the entire complaint. Plaintiffs should have moved for leave to amend their complaint in this respect, and given an opportunity to the defendant Stevens to litigate that question.

The judgment appealed from should be reversed as to all the defendants, and the order of reference vacated, and a new trial ordered, with costs to appellants, to abide the event.


author: Barbour, C.J.

text:
    WALTER R. T. JONES And Another, Respondents, v. JAMES P. BRIDGE and Others, Appellants.

      [Decided June 4, 1870.]
    A general exception to the correctness of an average adjustment and apportionment passed upon by a referee does not entitle the appellant to argue, on appeal, that the referee erred in regard to some of the items.
    Whenever a case of general average has arisen, the deck cargo must contribute its •due proportion of the whole expense. No distinctions are made in favor of different portions of the cargo.
    Bonds given to secure a valid lien entitling the salvors to the possession of the goods, and upon the faith of which the salvors parted with the possession, cannot be considered as having been executed under duress.
    Before Barbour, C.J., Monell and Freedman JJ.
    Appeal from a judgment.
    The evidence showed that on the 25th of October, 1862, the schooner Isabella sailed from New York on a voyage to Boston, with a cargo of pig-iron and whiting in her hold, and petroleum on deck, which petroleum, being 270 barrels, belonged to the defendant Bridge. As the wind was ahead, the schooner came to anchor in the East river, and on the 28th she parted her cable in a squall and was driven upon a reef of rocks, where she sunk so far that 113 barrels of the petroleum, with some spare spars and rigging, were floated off and carried away by the tide. On the same day an agent of the Coast Wrecking Company came on board, and was employed by the master to raise and save the vessel and cargo. The oil remaining on board was first taken off upon lighters, and then a portion of the iron, after which the schooner was raised from the rocks on which she lay, and the cargo still on board removed, but upon being docked the vessel was found to be so much injured that she was condemned and sold, and the voyage abandoned. After the vessel was sold the defendant Bridge, together with the other defendants, as sureties, executed to the Wrecking Company a bond for the payment of such sums as should be found due to them by way of salvage upon the petroleum, and also executed to the plaintiffs, average adjusters, another bond, conditioned for the payment of such average contribution as should be found due from Bridge, and thereupon the petroleum was delivered to the latter. The action was brought upon those bonds by the plaintiffs, as assignees and principals, to recover the value of the services rendered and expenditures made in raising and saving the vessel and cargo. The expenses were adjusted by the referee upon the principle of general average, and he found the contributory share of Bridge, as owner of the petroleum, to be $1,552.84 ; for which, with interest and costs, the plaintiffs had judgment. From this judgment the defendants appealed.

      Mr. James W. Gerard, Jr., for appellants.

      Mr. C. A. Hand for respondents.
   By the Court:

Barbour, C.J.

The general exception to the referee’s report “ that the average adjustment, statement, and apportionment in said report mentioned are incorrect, as modified by said report,” is not sufficient to entitle the appellants to claim here, as they do, that the referee erred in regard to some of the items embraced in his statement, though not all. It is, in fact, an exception to each and every item of charges, allowances, and values covered by the statement, as well as each and all the calculations of charges and apportionments, instead of being, as it should have been, such an objection to the statement or findings of the referee as would have enabled him to discover and correct his error, if any had been made. ■The amount of the judgment, therefore, cannot be questioned here if the referee has not based his calculations upon an erroneous principle, covered by some other exception.

The main question in the case is, whether the plaintiffs are entitled to contribution from the owner of the petroleum as in general average, or only for the value of the services rendered by them in removing and. preserving it.

At the time the vessel and her cargo were sunk the whole of the property was in the custody and under the control of the master, as an entirety, for all the purposes of the voyage, including of course its preservation from loss, and upon such sinking it became and was his duty to take the proper steps for raising and saving the property, if it could be recovered at a reasonable expense, without regard to the relative rights or interests of the respective owners inter se, or, in other words, just as he would have done had there been but one owner of both vessel and cargo. He had reason to believe, and the ultimate result proved the correctness of his opinion, that most of the cargo remaining on board, as well as the schooner itself, could be raised and saved by an expenditure of less money than the property as a whole would be worth when recovered, and his employment of the company to save the property was, therefore, right and proper. The course taken by the company in that employment also seems to have been just what was required under the circumstances. The deck load, which it appears was still in danger of being lost by a future storm or a high tide, was first taken away, and then they removed a sufficient quantity of the cargo in the hold to lighten the schooner so far that she could be raised and towed to a place where the remaining cargo could be taken out and the vessel herself put in dock for examination and repair or sale. Indeed, everything that was done in regard to the recovery of the goods and vessel appears to have been done for the benefit of all the property as a whole. The company were employed to save it all, and it requires no argument to show that the removal of the deck load was not only necessary for its own preservation, but was required for the purpose of so lightening the vessel that she could herself be raised and the remaining cargo taken out and saved, and that such removal of the petroleum from the deck contributed to the saving of all the property recovered. The case was, therefore, one of general average, and the defendant Bridge was liable to contribution therein as the owner of the petroleum (see 3 Kent’s Com., 232, et seq., and cases there cited).

Having arrived at this conclusion it follows, in my opinion, that the bonds, given as they were for the purpose of securing a valid lien which entitled the salvors to. the possession of the, goods, cannot be considered as having been executed under duress.

The judgment should be affirmed, with costs.