author: Opinion Per Curiam.

text:
    DIEGO S. CARO et al., Respondents, v. THE ELEVATED R’Y. Co., Appellant.

      Judgment entered on order of general term—no notice entry necessary— special term cannot determine whether •judgment expresses intent of court.

    Before Sedgwick, Ch. J., Freedman and Arnoux, JJ.

      Decided November 6, 1882.
    Appeal from an order denying motion to vacate or re-settle judgment.
    On or about June.27, 1879, judgment in this action was entered in defendant’s favor upon a demurrer, from which judgment an appeal was taken, and on or about April 5, 1880, the judgment was reversed and judgment directed for plaintiff. The order was settled on notice, and was absolute. The original plaintiff having died, the action was revived, and thereafter, and on or about May 10, 1882, judgment herein was entered without notice of any kind. Thereupon defendant’s counsel moved the special term to vacate or re-settle the order upon an affidavit of one of the attorneys for defendant, in which he states that the judgment was entered without notice, and that he believes that it does not express the intent of the court. This motion was denied.
   The court at G-eneral Term held:

Dorsheimer, Bacon & Deyo, for appellants.

Julian T. Davies and Roger Foster, for respondents.

“After settlement of a general term order and the taxation of costs, the entry of judgment follows as matter of course. It is the clerk’s duty to see that the judgment conforms to the order. Neither the law nor the practice of the court requires notice of entry of judgment to be given. The question was made, not that the judgment did not follow the order, but that the judgment did not express the intent of the court. This was not a question for the special term to pass upon.

Opinion Per Curiam.

Order affirmed, with $10 costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DIEGO S. CARO et al., v. THE METROPOLITAN ELEVATED RY. CO.

      Power of general term, to vacate or resettle judgment entered an order of former generad term where it does not conform to order—when such power will not he exercised.

    Before Sedgwick, Ch. J., Freedman and Arnoux, JJ.

      Decided November 6, 1882.
    Motion by defendants to vacate or re-settle judgment by clerk, upon order made by a former general term, composed of judges other than those now sitting.
   Per Curiam.

It is impossible to determine from the record, whether it was the intent of the general term which heard the demurrer, to direct judgment according to the forms which have been presented by the defendants on this motion, and not according to the form actually entered, unless this general term should proceed to hear anew the issue of law which was made by the demurrer. The former general term ascertained what facts alleged in the complaint constituted a cause or causes of action, and what was the proper relief. Of course this general term cannot review the decision. The peculiarities of the situation are practically shown by the fact that defendants now present two forms of judgment, which seem to be based upon distinctly different views of plaintiff’s rights. There is no sufficient ground, therefore, for directing judgment as asked by the defendants. It is not intended to deny that this court would have the power to vacate the judgment entered by the clerk, if it appeared that it was not in conformity with the order which the former general term made. In this case, however, in view of its history disclosed by the record, it does not appear that the defendants have an absolute right to have this question determined. The correspondence between the attorneys shows that the case was shaped for the purpose of getting the judgment of the court of appeals upon the rights of the parties. If the present judgment were set aside, it might result in another hearing at a general term of the appeal from the special term. An appeal from the present judgment, will result in an adjustment of the defendant’s claim.

David Dudley Field and Dorsheimer, Bacon & Deyo, for defendants.

Julian T. Davies and Roger Foster, for plaintiffs.

Motion denied, without costs.


text:
    ROSY MULLER, as Admr’x., &c., Appellant, v. THE SECOND AVENUE R. R. CO., Respondent.

      Action for causing death—not enough that plaintiff proves facts equally consistent with negligence or care on part of defendant.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided December 4, 1882.
    Appeal by plaintiff, from judgment dismissing complaint.

      This action was brought to recover damages for causing the death of plaintiff’s intestate, Theodore Muller, who at the time of his death was a passenger in one of defendant’s cars. The deceased was sitting on the left side of an open car, and as the car was turning a curve to the left, he fell out to the left and almost immediately expired. The curve was not a sharp one, and the witnesses all agreed that the rate of speed at which the car approached and passed the curve did not exceed four miles per hour, and that they noticed or felt nothing" beyond the" ordinary jar which is usually experienced on such an occasion. According to the testimony, the deceased fell out contrary to the known laws of force, and the occurrence was not accounted for. There was no evidence showing improper management of the horses or the car, or a defect in the car or the track. The cause of the fall was left to conjecture.
    A. G. Vanderpoel, for appellant.

      Hutchins & Platt and Austin G. Fox, for respondents.
   The court at General Term, held: “ that the burden was on the plaintiff to prove more than a mere state of facts, which is as consistent with care as with negligence on the part of the defendant. She was bound to adduce competent proof of facts showing negligence in the defendant or its servants (Baulec v. N. Y. & H. R. R. Co., 59 N. Y. 356).

Opinion by Freedman, J.; Sedgwick, Ch. J., concurred.

Judgment affirmed, with costs.


text:
    LOUIS K. EATON, Respondent, v. HELEN BURNETT et al., Appellants.
    Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided December 4, 1882.

      Pleading—motion to ttrike out—when not granted—practice.

    Appeal from an order striking out certain parts of an amended answer, as irrelevant and redundant.
    The action was upon a bond.
    On motion, the court below struck out paragraphs 4, 5, 6, 7, 8, 9 and 10 of the answer as irrelevant and redundant. Paragraph 11 contained a denial that the contingency upon which the obligation of the bond depended had occurred, but such fact was not pleaded in form nor numbered as a separate defense.
   The court at General Term, held :

“ It is quite clear that the 4th subdivision of the answer was redundant, being a mere reiteration of a similar allegation in the complaint. The allegations in the subsequent subdivisions (5-10) are unnecessarily prolix; but taken as a whole I am not prepared to say that they do not constitute a plea of such former adjudication against the plaintiff’s claim as would, if true, defeat his right of action. When there is a semblance of a cause of action or defense set up in the pleading, its sufficiency cannot be determined on motion to strike out as redundant or irrelevant. It seems that the proper way to test the validity of the pleading is by demurrer or by motion on trial (Walter v. Fowler, 85 N. Y. 621; Fettretch v. McKay, 47 Id. 426 ; Collins v. Suau, 7 Robt. 94; Trinity Church v. Higgins, 48 N. Y. 532). It seems to me the plaintiff’s proper remedy was, first to move that the defendant state the defenses separately, and then to test the sufficiency of these allegations by a demurrer.

Winsor & Marsh, for appellants.

Abel E. Blackmar, for respondent.

Opinion by Russell, J.; Sedgwick, Ch. J., and Freedman, J. concurred.

Order affirmed as to fourth subdivision of the answer and reversed as to the others, without costs.


text:
    CHRISTIAN BACHMAN, Appellant, v. LEO GOLDMARK, Respondent.

      Order of arrest obtained on same grounds as cause of action—when will not be vacated.

    Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided December 4, 1882.
    Appeal by plaintiff from order vacating an order of arrest.

      S. St. J. McCutcheon, for appellant.

      A. J. Dittenhoefer, for respondent.
   Per Curiam.

The action was for damages from alleged fraudulent representations as to a bond and mortgage, defendant being plaintiff’s attorney-at-law at the time, which the complainant alleged induced the plaintiff to purchase the bond and mortgage and to pay for it $650. Assuming the allegations of the complaint to be true, it was the right of the plaintiff, to rescind the bargain and sale of the bond and mortgage, and to recover the amount paid by him. That would be at least the measure of damages. The facts disclosed by the affidavits of both sides, did not make a clear preponderance of evidence, to show that the plaintiff could not succeed in his action.

Order below reversed, with $10 costs, and motion made below denied, with $10 costs, to abide event of action.


text:
    Jacob F. Wyckoff, Assignee, &c., respondent, v. Owen O’Connor, appellant.
    Decided December 5, 1881.
    Appeal from judgment on report of a referee.
    Owen O’Connor, appellant in person ;
    Frank Thayer and Cephas Brainerd, for respondent.
   Opinion by Speir, J.; Sedgwick, Ch., J., and Freedman, J., concurred. Judgment affirmed, with costs.


text:
    William B. Canfield, appellant, v. The Baltimore & Ohio R. R. Co., respondent.
    Decided December 5, 1881.
    Appeal from judgment on verdict, and from order denying a motion for a new trial on the minutes.
    Estes & Barnard, for appellant;
    Hutchins & Platt, and A. G. Fox, for respondent.
   Opinion by Speir, J.; Freedman, J., concurred.. Judgment and order affirmed, with costs.


text:
    Marcia E. Lees, respondent, v. Theodore F. Lees, appellant.
    Decided December 5, 1881.
    Appeal from order denying motion to open default.
    Dailey & Perry, for appellant ;
    E. D. Edgerton, for. respondent.
   Opinion by Freedman, J.; Sedgwick, Ch. J., concurred. The order appealed from affirmed, with costs, unless the defendant within twenty days after the service of a copy of the order to be entered hereon, pay to the plaintiff alimony since the day of the trial of' the special issues, at the rate of eight dollars per week, and a counsel fee of two hundred and fifty dollars, and give a written stipulation to proceed to trial at the next term of the court without fail; in which cáse the order is reversed and a new trial granted, and the case set down for trial for the first Monday of January, 1882, without further notice.


text:
    Theodore St. John, respondent, v. Josef J. Quetting et al., appellants.
    Decided December 5, 1881.
    Preston Stevenson, for appellants ;
    John B. Pannes, for respondent.
   Opinion by Freedman, J. ; Sedgwick, Ch. J., concurred. Judgment and order reversed and new trial,granted, costs to appellants to abide ■ event.


text:
    Henry D. Goetschius, et al., respondents, v. Catharine Ann Hedges, appellant.
    Decided December 5, 1881.
    Appeal from judgment upon the report of a referee.
    Seaman & Conger, for appellant;
    George W. Weiant,
    for respondents.
   Opinion by Freedman, J.; Sedgwick, Ch. J., and Speir, J., concurred. Judgment affirmed, with costs.


text:
    William O’Brien, appellant, v. Bernard Reilly, as sheriff, &c., respondent.
    Decided December 5, 1881.
    Appeal from judgment on verdict of jury, and from order denying motion upon the minutes for a new trial.
    M. J. Earley, for appellant;
    Vanderpoel, Green & Cuming, for respondent.
   Opinion by Freedman, J.; Sedgwick, Ch. J., concurred. Judgment and order affirmed, with costs.


text:
    Conrad Cramer, as adm’r &c., appellant, v. John C. Delavergne et al., respondents.
    Decided December 5, 1881.
    Appeal from judgment entered. upon report of referee.
    Wm. A. Beach, for appellant;
    Sidney S. Harris, for respondent.
   Opinion per Curiam, Sedgwick, Ch. J., Speir. and Freedman, JJ., sitting. Judgment affirmed, with costs.


text:
    Henry Volkening et al., appellants, v. John Barry, impld. &c., respondent.
    Decided December 5, 1881.
    Appeal from judgment on referee’s report.
    A. H. Stoiber, for appellants;
    John J. Brady, for respondents.
   Opinion per Curiam, Sedgwick, Ch. J., Speir and Freedman, JJ., sitting. Judgment affirmed, with costs.


text:
    Christopher Nugent et al., respondents, v. John D. Underhill, appellant.
    Decided December 5, 1881.
    Appeal from an order denying a motion to vacate and set aside an order of arrest.
   Opinion per Curiam, Sedgwick, Ch. J., and Speir J., sitting ; Sedgwick, Ch. J., concurred in result. Order reversed, and the order of arrest vacated and set aside, with $10 costs.


text:
    Hannah B. Draper, v. Thomas Wales Morgan Draper.
    Decided December 5, 1881.
    Kent & Auerbach, for appellant;
    W. P. Prentice, for respondent.
   Per Curiam, Speir and Freedman, JJ., sitting. Order affirming the referee’s report affirmed, with costs.


text:
    Charles Storrs et al., respondents, v. James L. Flint, as executor, &c., and The Russell & Erwin Manufacturing Co., appellants.
    Decided February 6, 1882.
    Appeal from order allowing amendment of complaint.
    Marsh & Wallis, for appellants ;
    Owen & Gray and John E. Parsons, for respondents.
   Opinion by Freedman, J. ; Russell, J., concurred. Order reversed, with costs, and motion denied, with $10 costs.


text:
    Francis Stoddard, respondent, v. The Lake Shore & Michigan Southern R. Co., appellant.
    Decided February 6, 1882.
    Appeal from judgment upon decision of special term.
    James Matthews and Edward S. Rapallo, for appellant ;
    Birdseye, Cloyd & Bayliss, for respondents.
   Opinion by Freedman, J.; Russell and Arnoux, JJ., concurred. Judgment affirmed, with costs.


text:
    Daniel M. Porter, appellant, v. Isidor Wormser, et al., respondents.
    Decided April 3, 1882.
    Appeal from judgment upon the report of a referee, dismissing complaint and adjudging $2,758.12 to be due to defendants.
    Daniel M. Porter, appellant in person;
    Man & Parsons, for respondents.
   Opinion by Freedman, J.; Sedgwick, Ch. J., and Russell, J., concurred.. Judgment affirmed, with costs.


text:
    John H. Platt, as assignee, &c., respondent, v. Joseph J. Dale et al., appellants.
    Decided April 3, 1882.
    Appeal from judgment after trial by the court without a jury.
    Waldo Hutchins and Austin G. Fox, for respondent ;
    John E. Risley, for appellants.
   Opinion by Freedman, J. ; Russell, J., concurred. Judgment affirmed, with costs.


text:
    John P. Harley, as adm’r, &c., appellant, v. The U. S. Life Insurance Co., respondent.
    Decided April 3, 1882.
    Appeal from judgment on verdict directed by the court.
    Joshua M. Van Cott, for appellant;
    O. P. Buell, for respondent.
   Opinion by Russell, J. ; Freedman, J., concurred. Judgment affirmed, with costs.


text:
    Abram B. Wetmore, as ex’r, &c., appellant, v. Thomas E. Porter, respondent.
    Decided April 3, 1882.
    Appeal from judgment on demurrer.
    E. Terry, for appellant;
    Edward Fitch, for respondent.
   Per Curiam, Freedman and Russell, JJ., sitting. The judgment should be affirmed with costs, for the reasons assigned by .the learned chief judge at special term.


text:
    The Rider Life Raft Co., respondent, v. George P. Stetson, et al., appellants.
    Decided April 3, 1882.
    Appeal by defendants separately, from a judgment entered after an accounting.
    Edward Gebhard, for the appellants;
    Thomas G. Ritch, for the respondent,
   Opinion Per Curiam ; Sedgwick, Ch. J., and Russell, J., sitting. As to defendant Roach, judgment reversed, and a new trial ordered, with costs to abide the event. As to defendant Stetson, the judgment affirmed with costs.


text:
    Stephen D. Pringle, respondent, v. Charles D. Leverich, impleaded, &c., appellant.
    Decided April 3, 1882.
   Freedman and Russell, JJ., sitting. Per Curiam; agree to affirm, without opinion. Judgment affirmed, with costs.


text:
    Charles W. Durant, Jr., appellant, v. William Abendroth, respondent.
    Decided April 3, 1882.
    Carlisle Norwood, Jr., .for appellant;
    Thomas G. Ritch, for respondent.
   Opinion, Per Curiam.;- Freedman and. Russell, JJ., sitting. Judgment overruling the exceptions, with costs.


text:
    Erastus W. Morgan, respondent, v. Alexander Fischer, impleaded, &c., appellant.
    Decided June 5, 1882.
    Appeal from order for injunction and receiver.
    Thornton, Earle and Keindl, for appellant;
    Thomas P. Malany and John E. Burke, for respondent.
   Opinion by Freedman, J.; Sedgwick, Ch. J., and Arnoux, J., concurred. Order appealed from reversed, with ten dollars costs, and motion for continuance of injunction, and appointment of receiver denied, and preliminary injunction dissolved, with ten dollars costs.


text:
    Charles F. Davenport, respondent, v. Frederick M. Lockwood, et al., appellants.
    Decided June 5, 1882.
    Appeal from order denying defendant’s motion to vacate an ex parte order, entered by plaintiff February 6, 1882, which vacated an order, also ex parte, entered by plaintiff January 30, 1882, discon-, tinning the action after appearance by defendants, upon payment of costs.
    Greorge E. Sibley, for appellants ;
    Adolphus D. Pape and J. F. Fischer, for respondent.
   Opinion by Freedman, J.; Sedgwick Ch. J., concurred. Order affirmed, with ten dollars costs and disbursements.


text:
    Johanna Voos, respondent, v. The Second Avenue R. R. Co., appellant.
    Decided June 5, 1882.
    Appeal from judgment entered on a verdict, and from order denying motion on the minutes for a new trial.
    Hutchins & Platt, and Austen G. Fox, for appellant;
    Lauterbach & Spingarn, for respondent.
   Opinion Per Curiam ; Sedgwick, Ch. J.-, and Freedman, J.; 'sitting. Judgment and order affirmed, with costs. -


text:
    Philip A. Fitzpatrick, respondent, v. Lauren C. Woodruff, appellant.
    Decided June 5, 1882.
    Appeal from judgment on verdict and from order denying motion for new trial upon the minutes.
    Freeman J. Fithian, for appellant;
    Alexander B. Johnson, for respondent.
   Sedgwick, Ch. J., and Freedman, J., sitting. Per Curiam ; judgment affirmed with costs, and order appealed from affirmed, with $10 costs.


text:
    Abraham Rich, Jr., respondent, v. James H. Lyles et al., appellants.
    Decided June 5, 1882.
    Appeal from judgment on verdict and from order denying motion for new trial upon the minutes.
    Luther R. Marsh, for appellants ;
    Wm. Taft, for respondent.
   Sedgwick, Ch. J., and Freedman, J., sitting. Per Curiam; judgment affirmed, with costs, and order affirmed, with $10 costs.


text:
    J. Tredwell Richards, respondent, v. Julia E. Tredwell, appellant.
    Decided June 5, 1882.
    Appeal from order denying defendant’s motion to vacate an order for examination of the defendant before trial.
    George C. Coffin, for appellant;
    J. Tredwell Richards, respondent in person.
   Sedgwick, Ch. J., and Freedman, J., sitting. Per Curiam ; order affirmed, with $10 costs.


text:
    Jonas Phillips, respondent, v. John L. Taylor, appellant.
    Decided June 19, 1882.
    Appeal from judgment on verdict, under the direction of the court. Exceptions ordered to be heard in the first instance at general term.
    Man & Parsons, for respondent;
    John A. Mapes, for appellant.
   Opinion, by Arnoux, J.; Sedgwick, Ch. J., concurred in result. Exceptions sustained ; judgment vacated; new trial ordered, costs to abide event.


text:
    The People, ex rel. Clara B. Warner, appellant, v. George W. Parker, Justice, &c., respondent.
    Decided June 19, 1882.
    Appeal from order quashing writ of certiorari, at special term.
    A. B. Conger, for appellant;
    Mr. Earle, for respondent.
   Sedgwick, Ch. J., Freedman and Arnoux JJ., sitting. Per Curiam; order affirmed, with costs.


text:
    Silas H. Jessup, et al., respondents, v. Jacob Steurer, appellant.
    Decided August 1, 1882.
    Appeal from order granting new trial, and setting aside verdict in favor of defendant upon motion at special term.
    Henry Daily, Jr., for appellant;
    George Carpenter and S. Jones, for respondents.
   Opinion by Sedgwick, Ch. J.; Freedman and Arnoux, JJ., concurred. Order reversed with costs.


text:
    Cornelia D. Earle, respondent, v. William P. Earle, impleaded, &c., appellant.
    Decided August 1, 1882.
    Appeal by defendant from final judgment.
    Martin & Saunders, for appellant;
    Glover, Norwood Sweezy and Henry S. Glover, for respondents.
   Sedgwick, Ch. J., and Arnoux, J., sitting. Per Curiam, judgment appealed from affirmed, with costs.


author: Arnoux, J.

text:
    Allan Pinkerton, appellant, v. Mary A. D. Bruen, respondent.
    Decided November 6, 1882.
    Appeal from an order denying plaintiff’s motion for reference.
    Mr. Blatchford, for appellant;
    Mr. Gray, for respondent.
   Arnoux, J.

Section 1013 of the Code gives a discretion to the court below to grant or to refuse the order sought, and on this appeal we think that the order was within the proper exercise of that discretion (Martin v. Windsor Hotel Co., 70 N. Y. 101).

Truax, J., concurred. Order affirmed with costs.


text:
    William Eggert, respondent, v. Daniel B. Bonnett et al., impleaded, &c., appellants.
    Decided December 4, 1882.
    Appeal from judgment on verdict.
    Charles W. Seymour, for appellants;
    Joseph A. Shoudy, for respondents.
   Opinion by Sedgwick, Ch. J. ; Freedman and Russell, JJ., concurred. Judgment affirmed, with costs.


author: Freedman, J.

text:
    Claudius E. Habicht, respondent, v. The Pyrolusite Manganese Co., appellant.
    Decided December 4, 1882.
    Appeal from order setting aside an inquest and judgment on terms.
    L. B. Bunnell, for appellant;
    Broadhead & King, for respondent.
   Freedman, J.

The terms imposed consisted in the requirement that the defendant should give to the plaintiff a good and sufficient bond, with two sureties, to pay plaintiff’s demand, if plaintiff should succeed upon the trial. No costs were imposed. Upon the case presented, the requirement was a reasonable one. Sedgwick, Ch. J., and Russell, J., concurred. Order affirmed, with costs.


text:
    Nathaniel J. Potter, respondent, v. Edward F. Lucas, et al., appellants.
    Decided December 4, 1882.
    Appeal from judgment on verdict, and from order denying motion on the minutes for a new trial.
    James L. Bishop, for appellants;
    T. C. Campbell, for respondent.
   Opinion by Freedman, J.; Sedgwick, Ch. J., and Russell, J., concurred. Judgment and order affirmed, with costs.


text:
    Adam Turkes, respondent, v. Joseph Reis, appellant.
    Decided December 4, 1882.
    Appeal from judgment.
    George Behrens, for appellant;
    Brown & Rabe, for respondent.
   Opinion by Freedman, J.; Sedgwick, Ch. J., and Russell, J., concurred. Judgment affirmed, with costs.


text:
    Frederick A. Potts, appellant, v. Isaac Mayer, impleaded, &c., respondent.
    Decided December 4, 1882.
    Appeal from judgment and verdict, and from order denying motion upon the minutes for a new trial.
    Richard S. Newcombe and Albert Cardozo, for appellant ;
    Benj. F. Carpenter and Payson Merrill, for respondent.
   Opinion by Freedman, J.; Russell, J., concurred* Judgment and order affirmed, with costs.


text:
    Squires L. Newberry, appellant, v. David Abrams, respondent.
    Decided December 4, 1882.
    Appeal from judgment of special term.
    Norris & Beach, for appellant;
    Abraham Hershfield* for respondent.
   Opinion by Freedman, J.; Russell, J., concurred. Judgment affirmed, with costs.


text:
    Francis R. Lewis, appellant, v. Amos E. Stevens, sued as J. L. Stevens, respondent.
    Decided December 4, 1882.
    Appeal from order denying motion to set aside approval of bail on default, and refusing to open the default.
   Opinion by Horace Russell, J. ; Freedman, J., concurred. Order below reversed, default set aside and approval of the bond vacated, upon payment by the plaintiff of ten dollars costs of motion below, and costs-of appeal.


text:
    William H. Popham, respondent, v. The Twenty-third Street R'y. Co., impleaded, &c., appellant.
    Decided December 4, 1882.
    Appeal from judgment on verdict, and from order denying motion for new trial upon the minutes.
    Osborn Bright, for appellant;
    Charles E. Crowell, for respondent.
   Sedgwick, Ch. J., and Russell, J., sitting. Per Curiam.—Judgment affirmed, with costs, and order appealed from affirmed, with $10 costs.


text:
    William H. Popham, appellant, v. The Sixth Avenue R. R. Co., impleaded, &c., respondent.
    Decided December 4, 1882.
    Appeal from judgment that complaint be dismissed at trial term.
    Charles E. Crowell and Chauncey Shaffer, for appellants ;
    D. M. Porter, for respondent.
   Sedgwick, Ch. J., and Russell, J., sitting. Per Curiam.—Judgment affirmed, with costs.


text:
    Elizabeth Bailey, respondent, v. Ronald Thomas, appellant.
    Decided December 4, 1882.
    Appeal from order denying motion for reference.
    T. G. Barry, for appellant;
    George De Lacy, for respondent.
   Opinion Per Curiam ; Sedgwick, Ch. J., and Freedman, J., sitting. Order affirmed, with $10 costs.


text:
    Patrick Nolan, respondent, v. Samuel Boardman, appellant.
    Decided December 4, 1882.
    Appeal from order permitting examination of defendant’s books of account.
   Per Curiam.

Sedgwick, Ch. J., and Freedman, and Russell, JJ., sitting. Order appealed from affirmed, with costs.


text:
    The Metropolitan Concert Co., Limited, respondent, v. Henry E. Abbey et al., appellants.
    Decided December 4, 1882.
   Freedman and Russell, JJ., sitting. Per Curiam. The orders appealed from should be affirmed, with costs.


text:
    John A. McTaggart, respondent, v. Henry H. Morange, appellant.
    Decided December 4, 1882.
    Appeal from order' denying motion to vacate order for defendant' s examination as a judgment debtor.
    H. H. Morange, appellant in person;
    D. M. Porter, for respondent.
   Freedman and Russell, JJ., sitting. Per Curiam. The order appealed from should be affirmed, with costs.


text:
    James Hennessy, respondent, v. The Greenwich Insurance Co., appellant.
    Decided December 4, 1882.
    Appeal from judgment and from order denying motion for new trial.
    Flanagan & Bright, for appellant;
    George Van Slyck, for respondent.
   Freedman and Russell, JJ., sitting. Opinion Per Curiam. Judgment and order affirmed, with costs.


text:
    In the matter of Richard H. Disosway.
    Decided December 4, 1882.
    Appeal from order on habeas corpus, discharging Disosway from imprisonment.
    Josiah Fletcher, for executor, appellant;
    A. B. Philbrook, for Disosway, appellant, a creditor.
   Sedgwick, Ch. J., and Russell, J., sitting. Per Curiam.—We are of opinion, that the order was appealable under sections 236 and 1356 of the Code of Procedure, and that it should be affirmed on the opinion below.


author: By the Court.—Sedgwick, Ch. J.

text:
    WILLIAM B. PARKER, Appellant, v. RICHARD C. SPEER, Respondent.

      Execution against person—right of defendant's attorney to enforce payment of costs, in action in tort.

    Under the authorities, where there is an agreement between the defendant and his attorney that the costs if recovered shall belong to the latter, the action being in tort and one in which defendant might have been arrested, said attorney may issue an execution against the body of plaintiff upon a judgment for costs on a dismissal of the complaint, though such judgment has been theretofore assigned by said defendant to plaintiff's attorney.
    But the reason of the authorities upholding defendant’s right to issue an execution against the body of plaintiff in such a case, questioned.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided December 30, 1882.
    Appeal by plaintiff, from order denying motion to set aside execution issued against the person of plaintiff.
    The action was in tort. The complaint was dismissed on the trial, and judgment for costs entered against plaintiff. The defendant’s attorney had agreed with defendant, that the former was to receive the taxed costs, if the defendant recovered. The defendant, after execution against the property was returned unsatisfied, assigned to plaintiff’s attorney the judgment for costs: Three days after, the defendant’s attorney issued execution against the person of plaintiff. The plaintiff made a motion to set aside this execution. An order .was made denying the motion. The appeal is from this order.

      Charles Strauss, for appellant.

      Jacob Fromme, for respondent.
   By the Court.—Sedgwick, Ch. J.

—The current of precedent and of opinion among lawyers, is in favor of the position that, in actions in tort, under the conditions prescribed by the Code, when there is judgment for costs in favor of the defendant, the plaintiff may be taken by execution against his person. I of course accede to this and its consequences. If it were a new question, I should have come to a different conclusion.

The answer to the question rests solely upon the construction of the Code. In that is' found the only authority to issue executions, and it gives all the contingencies upon which they may be issued.

In section 288 of the Code of Civil Procedure, it is declared, that “if the action be one in which the defendant might have been arrested,” under preceding sections, “an execution against the person of the judgment debtor may be issued.” In construing this it was said that in such an action, a plaintiff failing to recover might be the judgment debtor, and therefore he could be arrested.

In the next sentence, however, it is said, “ but no execution shall issue against the person of a judgment debtor unless an order of arrest has been served as in this section provided, or unless the complaint contains a statement of facts showing one or more” causes of arrest. To my mind, the words “judgment debtor” here intend the defendant, on whom only an order of arrest can be served. Were the words in the first sentence intended to mean more than the words in the second sentence ?

The employment of the words in the first sentence seems to have arisen in this wise. The framer of the section began with a description of the action in which it was intended to provide for an execution against the person. It was an action in which, according to the previous section, an arrest might be made. At the beginning of the action there was no judgment debtor. Only a defendant as such could be arrested. When, however, an execution might be issued, the defendant had become a judgment debtor. He was so designated, instead of being called defendant, that it might be intimated that the execution was to issue against the defendant, only when judgment had peen obtained against him.

Clearly the policy of the statute regarded more largely the cases of defendants against whom judgment had been obtained for fraud or other wrongs. The considerations that pertained to plaintiffs in unsuccessful actions in tort, were of a minor or subordinate kind, and too, of a kind that differed widely from those that regarded defendants. The idea would seem to be this: although a judgment for costs against a plaintiff j is in the nature of a contract debt, and imprisonment on account of contract debts has been abolished, yet if a plaintiff endeavors to obtain a judgment which will justify his issuing execution against the person and is unsuccessful, let him suffer what he attempted to inflict, whether he was free from malice or acted upon probable cause or not, unless he can pay the costs. This idea is embodied in the words “judgment debtor,” which means partly defendant, and partly plaintiff. It seems to me, that the words should be confined to such judgment debtors as are defendants, on the principle of the maxim, “ad ea qucs frequentius aecidunt jura adaptanturP This maxim is applicable to statutes as well as to the unwritten law (Broome's Maxims, 42).

I think this view is made somewhat stronger by a construction of the present Code of Civil Procedure, which controlled rights to issue execution against the person, at the time of the present case. Section 1487 of that Code says, “an execution against the person, of the judgment debtor may be issued in two cases. First, where the plaintiff’s right to arrest the defendant depends upon the'nature of the action. It may be assumed that these words justify the same position that was taken under the old Code, that the judgment debtor intended, might be the plaintiff. Still, I think that more doubtful under the language of the present Code. The second class is in any other case where an order of arrest has been granted and executed in the action, and if it was executed against the judgment debtor, where it has not been vacated. It would' seem to me to be quite clear, that as the judgment debtor of this clause can only be a defendant, the same thing was meant by the judgment debtor of the introductory clause. It will be observed that the codifier did not think it worth while to make the discrimination that ah order of arrest must be executed while the party is but a defendant, and before judgment is entered against him.

It has been unnecessary to state these personal opinions, for I believe the new Code did not intend to change the substance of the Code of Procedure on this point, and the authorities have construed the latter to authorize, in certain cases, the arrest of. a plaintiff under execution. If such be the law, the conclusion seems to be inevitable that the plaintiff was lawfully arrested under the execution issued by the attorney who had a lien upon the judgment for the amount of costs recovered.

Order affirmed, with $10 costs.

Freedman, J., concurred.


author: By the Court.—Sedgwick, Ch. J. Horace Russell, J.—Dissenting.

text:
    ADDISON MACULLAR, et al., Appellants, v. JOHN W. McKINLEY, Respondent.

      False representations.—Statements to commercial agencies, effect of.—Evidence.

    The courts will take judicial notice of the business and office of commercial agencies established for the purpose of furnishing information as to the credit and standing of business men.
    To hold a defendant liable for an alleged false representation as to his financial standing made to such an agency, the evidence must show that he was the responsible cause of the plaintiff’s relying on the statement, and ordinarily this will be shown by the fact of the making of the representation.
    But such representation will hold against defendant only as to sales made within such time as, according to the custom of the agency, would elapse before another application is made to him, and another statement procured.
    Accordingly, where defendant, in February, made statements to a commercial agency tending to show his financial responsibility at the time, but also showing that his credit was not strong, which facts upon application were communicated to plaintiffs, and on the faith of which they sold to defendant goods at divers times, all of which were paid for up to the ensuing June, when defendant, being again applied to by said agency, declined to make any statement, which fact was put upon the records of the agency, with other information tending to show that defendant’s standing and credit were not good, the evidence showing that it was the custom of the agency to supply its information only upon application therefor.

      Held, that as to sales made to defendant by plaintiffs after such second interview in behalf of the agency, plaintiffs were not induced by him to rely upon the statement of February by itself, but upon it and such further statement as would be made in the usual course of business; that from the two statements, it appeared that the defendant did not claim credit upon any implied assertion that his first statement held good. Further held, that the complaint was properly dismissed. Bussell, J., dissented.
    Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided December 30, 1882.
    Appeal from a judgment in favor of the defendant for costs, iipon dismissal of the complaint at trial term.
    The action was for damages for false representations alleged to have been made by the defendant in purchasing goods upon credit from the plaintiffs.
    The defendant was a merchant tailor in the city of New York. The plaintiffs were merchants in Boston. The plaintiffs began to sell goods to the defendant in May, 1881, ■through their traveling agent. Before extending credit to the defendant they made inquiries as to the defendant’s financial standing, of the Bradstreet Company, a mercantile agency to which the plaintiffs were subscribers, a part of whose business it is to furnish information to such of their subscribers as inquire. The report was as follows: “McKinley, J. W., Tailor, New York City.
    “John W., 127 Nassau street, states, ‘Have a stock on hand of $2,500 and no liabilities, as I pay cash for all my purchases.’
    “ He has been in the above business for the past forty years, during which time said failed twice, the last- time some three or four years ago, and effected a compromise at fifty cents; was formerly at 506 Broadway, afterwards at 264 Broadway, and moved to present location last May, which he is obliged to vacate next May, as the building is to be taken down.
    “ His wife is said to own property, the income of which supports the family. Parties who have known him many years speak of him as an honest, industrious man ; though doing a small, close business, and not doing much, if anything, more than making á living for himself. Is not known to be asking any credit, as he became so very slow in his payments, that those who have sold him for years decline selling him except for cash.
    “21 .... F.....Feb. 25, 1881.
    “Nov. 22, 1881. To Macullar, Parker & Co.: The correctness of this report is not guaranteed, but having been obtained by us in good faith—from authorities deemed reliable—it is transmitted to you in strict confidence for your exclusive use and benefit, and in accordance with the terms of the contract existing between us.
    Respectfully, The Beadsteeet Company.”

      A witness in the employ of the Bradstreet Company testified that the statement “Have a stock on hand of $2,500 and no liabilities, as I pay cash for all my purchases,” was made to him by the defendant on or about February 25,1881, and that, at the time, he informed the defendant that he came there as an employee of the Bradstreet Company for the purpose of getting a statement of his financial condition.
    One of the plaintiffs testified that he sold the goods in question relying on the truthfulness of this statement which, upon his inquiry, was furnished him by the Bradstreet Company.
    The defendant purchased several bills of goods in May and June from the plaintiffs, for which he paid. The sales and credits,, on account of which this action was brought, were made in August, September and October. In November, the defendant made a general assignment, preferring certain members of his own family, among others his wife, to whom he recited an indebtedness of nearly $1,800, all borrowed before September, 1880, and $850 borrowed from other persons before February, 1881. His inventory showed an indebtedness of $4,097.63, with assets of the nominal value of $2,526.80, and actual value of '$1,553.80.
    The defendant did not deny that he made the statement in February attributed to him, but said he did not recollect it. It was proved on behalf of the defendant, that on or about June 20, another reporter of the Bradstreets called upon the defendant to get a report of his financial condition for the use of the Bradstreet Company. The reporter’s testimony was as follows: “I asked him if he felt inclined to give me some figures regarding his condition, as we had some inquiry at the time, and I desired to represent him properly; we had quite a long-conversation ; I can’t remember the exact words in the matter, but he did not feel inclined to give any statement; he seemed to be under the impression the agencies had done him harm ; did not think well of them; that they did not represent him properly, and a statement would not do him any good ; a statement would not do him any good if made ; he seemed to think he was all right.”
    Q. ‘1 Can you refresh your recollection from any data in your possession, or by the report you made to the company about that?”
    A. “Yes, sir; I have a memorandum in my pocket; it was: ‘ J. W. McKinley, tailor, New York City, 418 Sixth avenue, formerly 127 Nassau street, near John ; for several years he was located at Broadway and Prince streets, then 264 Broadway, and one year, 127 Nassau ; moved to present location last May; he declines giving any information; he is believed to be working with his wife’s "money; is stated to have failed two or three times; regarded as of little responsibility, and jobbing houses in the city say they would sell him only for cash.’ That report was spread upon the books of the Bradstreet Company June 20, 1881; it was put on file and distributed to those who inquired.”
    Q. “Did you, after that.date, call upon Mr. McKinley and have other conversation about a report ?”
    A. “Yes sir; after his failure.”
    The court below dismissed the complaint, on the ground that “Bradstreet & Company were, for the purposes of the trial, the plaintiffs’ agents. The information which they communicated to the plaintiffs required the plaintiffs subsequently to ascertain whether they had received further information which qualified the former representations.” The latter information, spread upon the books of Bradstreet & Company on June 20, before any of these bills were contracted, was that the defendant was doing business with his wife’s money, and was of little or no responsibility. The plaintiffs were bound to ascertain whether there had been any change in the report to the agency or otherwise. In law, the plaintiffs are chargeable with the knowledge of that further report made to their agents. The complaint must be dismissed.”

      C. C. & S. F. Prentiss, for appellants.

      R. W. Todd, for respondent.
   By the Court.—Sedgwick, Ch. J.

—The alleged false representations Were not made by the defendant directly to the plaintiff, but were made through the Bradstreet Mercantile Agency, as a channel of communication. Eaton C. & B. Co. v. Avery (83 N. Y. 31), says of the responsibility of a defendant in such a case: “A person furnishing information to such an agency in relation to his own circumstances, means and pecuniary responsibility, can have no other motive in so doing than to enable the agency to communicate such information to persons who may be interested in obtaining it, for their guidance in giving credit to the party.” “ But the defendant knew that they were a mercantile agency, whose business it was to give information as to the standing and means of dealers, and that it was resorted to by merchants to obtain such information^ By making a statement of the financial condition of his firm to such an agency, he virtually instructed it what to say if inquired of.” To make a defendant liable (p. 33), the testimony should show that the statements “were made with the intent that they should be communicated to and believed by persons interested in ascertaining the pecuniary responsibility of the firm, and with intent to procure credit and defraud such persons thereby, and such statements were communicated to the plaintiff and relied upon by it, and the alleged sale was procured thereby.” I wish here specifically to notice that in this declaration of what the law is, it is implied that the evidence must show that the defendant was the responsible cause of the plaintiff’s relying on the statement. Of course this would be shown, in most cases, by the mere fact of the making of the representations when the defendant was proceeding to buy the goods. There might, however, be cases in which the representations were made to induce one' sale only, and yet the seller would be induced by the statements to make another sale, at a future time, when the buyer would not be responsible for the operation of the seller’s mind.

As the responsibility of the defendant in such cases depends upon the character'of the agency as a usual means of communication, it is shaped and limited by the peculiarities of the methods of business of the agency. And on the other hand, the plaintiff in relying upon the communications from the agency, must himself take into account both those peculiarities and the fact that the defendant made the statement in view of them.

, In the present case, there was some testimony as to the methods of business of the agency, and agencies of this kind are so well known that the courts can take judicial notice of their business and office (Eaton v. Avery, supra, 31). By the testimony, the agency carried on the usual business of a mercantile agency—to report to business firms the credit and standing of business men. The plaintiffs were subscribers to the agency. It was not shown how often, as a habit, the agency applied to business men for information as to their means. As a fact in this case, the agency applied to the defendant for a statement of his financial condition in February, 1881, and .again in June, 1881. Both statements were spread upon the books of the agency. What was done in this case, it may be assumed was done in general as t0‘ all business men. Indeed, the methods of business require that applications be made from season to season repeatedly. The profit or loss of each business season must cause a change of the financial condition at the beginning of the season, or the fact, that nothing has been made or nothing lost, is an important piece of information.

A just conclusion in my judgment is, that when the plaintiffs received the statement of February, they could not be justified in assuming that it was made by the defendant, as something which he meant they should sell goods upon for all future time, but only for that space of time that, according to the custom of the agency, would elapse, before another application be made, and another statement procured. The defendant could assume that after the application in June, the plaintiffs would act upon the custom of the agency, and giving no further operation to the first statement than it should properly have, would not act upon it, except in connection with the June statement. The defendant would.be bound to know that the statement he made in February would be communicated to the plaintiffs, and would also have the right to believe that they would learn of the statement in June.

It was observed in the course of-the argument at the bar, that the agency did not furnish the information it. received to its subscribers always and uniformly, but gave it only to such of them as inquired for information, nevertheless, it is true, that the defendant would be liable for the February statement, on the ground that when he proposed to buy goods he would have convincing reason to believe that the plaintiffs, if subscribers to the agency, would apply to it. He must have the benefit of the consideration that his mind would work in a like manner upon proposing to buy goods after the second statement.

A more particular view of the facts will corroborate, I believe, these propositions. In February, 1881, the defendant said to the agency, “I have a stock on hand of $2,500, and no liabilities, as I pay cash for all my purchases.” In its report to the plaintiffs, the agency added that the defendant had been in business for forty years, had twice failed—the last time three or four years before, and effected a compromise at fifty per cent.; that his wife is said to own property, the income of which supports the family; that parties who have known him, speak of him as honest and industrious, doing a small, close business, and not doing much more than making a living for himself ; that he is not known to be asking any, credit, as he became so slow in his payments, that those who have sold him for years decline selling him except for cash.

In May, 1881, the plaintiffs’ salesman sold the defendant certain goods. The testimony for plaintiffs is, that before selling, they obtained from the agency a report that contained the matter that has been given. On the trial, the witness who swore to this produced a report of the -agency as the one he acted oh in May. This, however, was dated in November. Probably, the witness meant to say that the report dated November, was a duplicate of the report he received in May. If it be otherwise, the plaintiffs’ case failed, for the goods in action were all sold before November. At any rate, the goods sold from May 11, to June 21, on five occasions, in amounts from $112 to $26, were all paid for. The aggregate was $286.

In August, 1881, the plaintiff sold the defendant, and in September and October four parcels, in amounts from $557 to $62, amounting in ail to $950.

Before August and in June, the agency had applied to the defendant and he had made a declaration which was, as has already been said, placed upon the books of the agency. It was as follows: “He declines giving any information; he is believed to be working with his wife’s money; is stated to have failed two or three times ; regarded as of little responsibility, and jobbing houses in the city say they would sell him only for cash.”

It is extremely doubtful whether the testimony shows that the plaintiffs did not learn of this statement, as I call it, of June, and indeed, this would have demanded attention, if in the disposition of the case on - the trial, counsel had not assumed that the plaintiffs had not learned of it.

In connection with the reflections that come from the general nature of the business of the agency, as calling for repeated application to persons likely to ask credit, an illustration of the reason and probability of it is found in the February statement. It is manifest from this, that the defendant had a very, debilitated credit. A breath of disaster would destroy it. A few men not paying their bills, would make him insolvent, for he was a tailor doing a small, close business. The plaintiffs must have known that the agency would make an additional investigation after February and before August 16. The defendant must have thought that the facts obtained in June would be learned by the plaintiffs before they would sell to him in August.

I therefore, am of the opinion that it appeared by the undisputed testimony, that the plaintiffs were not induced by the defendant to rely upon the statement of February by itself, but' upon it in connection with such further statement, as in the usual course of the business would be made before August. The plaintiffs would learn from the two coupled together, that the defendant refused to reassert the facts stated by him in February, and therefore did not claim any credit upon an implied assertion by him,

‘ that his first statement still held good. The defendant had reason to believe that the plaintiffs had learned of the second statement, and were not about to rely upon the first statement. On either proposition, the defendant was not liable, and the court made a correct disposition of the case.

In my opinioft, the judgment should be affirmed, with costs.

Freedman, J., concurred.

Horace Russell, J.—Dissenting.

—[After stating the facts as above.]—The question presented to us is raised by the plaintiffs’ objection to the admission of the testimony in regard to the second statement in the books of Bradstreet & Company, entered on June 20, and by their exception to the dismissal of the complaint on the strength of that entry.

It was settled in Eaton, Cole & Burnham Co. v. Avery (83 N. Y. 31), if indeed there remained any doubt on the subject before that case was determined, that false statements as to financial condition made to a commercial agency, with the intent that they should be communicated to persons seeking to ascertain financial responsibility, and with intent to procure credit, and defraud, constitute a sufficient foundation for an action of deceit by persons defrauded by such means. The proof in the case before us, sufficiently established the making of representations, their falsity, the defendant’s knowledge of their falsity, and that the plaintiffs relied upon them, to demand the submission of the case to the jury, unless the judge below was right in taking the case from them, because of the effect to be given to the statement of June 20. The rightfulness of the decision below depends upon the answer to two questions: (1) Were the plaintiffs chargeable in law with the information received by the Bradstreet'Company % and (2) Was the statement entered in the books of the Bradstreet Company on June 20, such a one as, so far as the defendant was concerned, retracted the statement of February 25, so that the plaintiffs were no longer entitled to rely and act upon th¿ faith of that statement \

It is not open to question, that a principal is chargeable in law with information communicated to his general agent or to his special agent in the course of negotiations relating to a particular business. This rule of law has been adopted, because in such transactions, the agent takes the place of the principal, and in all things substantially acts and decides as the principal might if he were personally present, is, in short, his alter ego.

Had the defendant communicated to the plaintiffs directly, a recall of the statement of February 25, he certainly could not be held in this action. Had he communicated it to that person, whether one of the plaintiffs or their business manager, who is known as the “credit man” of commercial houses, he could not be held. So, had he communicated a retraction of the statement to the traveling salesman, who apparently conducted the. transaction, the plaintiffs would be chargeable with knowledge of such retraction, and could not recover in this action. But I cannot understand on what theory Bradstreet & Company can be regarded either as the general agents of the plaintiffs, or as their special agents with reference to • the business transactions between the plaintiffs and their customers, so that information communicated to them can be held, in law, to have been communicated to the plaintiffs themselves. True, Bradstreet & Co. were, in a certain sense, the agents of the plaintiffs ; but, so far as this error book discloses and our general knowledge on the subject goes, the extent of their agency was that they agreed to furnish, upon inquiry, such information as they had in regard to the financial condition of persons in relation to whom their subscribers might desire to inquire.

In the cases of this character in the books, the commercial agencies are held to have been the agents of the purchaser so far as the communication of the information derived by him was concerned. Except that the plaintiffs paid, it is presumed, for their information, there seems to be no better reason for holding the Bradstreets the agent of one party than of the other; in ’which case, before the plaintiffs’ action could be defeated, actual knowledge must be brought home to them.

The cases cited by the counsel, on the argument, in support of the theory on which this case was disposed of below (Holden v. N. Y. & Erie Bank, 72 N. Y 286; Bennett v. Buchan, 76 Id. 386; Whitney v. Groot, 24 Wend. 82; Rogers v. Warner, 8 Johns. 92), fall far short of sustaining that theory.

In Holden v. N. Y. & Erie Bank, it was held that the bank was chargeable with the knowledge possessed by its president and chief financial officer in regard to a transaction conducted by him as such president.

In Bennett v. Buchan, it was held that the principal was chargeable with the knowledge of the agent who “negotiated the whole business.”

It -would certainly be an extension of the doctrine of those cases to impute to a principal, information which persons whom they sometimes consulted, had acquired.

Whitney v. Groot, and Rogers v. Warner, were actions against sureties, in which the agreement of the surety was construed to relate only to the first sale to be made to the persons whose purchases they guaranteed.

Mercantile agencies are actual, not constructive agents ; that is, they act within actual, not constructive limitations ; and as persons can be held liable for statements made to them, only by showing that such statements were communicated to other persons as a basis for credit, so, in my judgment, can they only be relieved by showing that subsequent statements modifying the first, were actually communicated to the same persons. That they made subsequent and different statements, is, of course, admissible in evidence on the question of intent, but that is a different question from the one I am considering.

But even if it should be held that information of a ■ retraction of a former statement made to the commercial agency, should, as a matter of law, be imputed to a subscriber to the agency, the mere declination in June to make a new statement after having .made one in February, cannot properly be regarded as a retraction of the statement made in February. It might perhaps, excite some uneasiness on the part of a creditor, that a debtor should be unwilling to reiterate a statement made five months previously, but the creditor might very well attribute that unwillingness to the natural disposition of mankind, to resent frequent and impertinent inquiry. At any rate, such mere refusal was not of such a character as forbade his continuing to rely upon a positive and definite statement made a few months previous. The rumors referred to in the second statement, were merely given as rumors by the Mercantile Agency. They related to matters peculiarly within the knowledge of the defendant, and were covered by the statement made by him in February. If those rumors had been actually communicated to the plaintiffs they would have had a right to say “ these are rumors which may or may not have foundation; we have the positive statement of our customer given in February that he was entirely solvent, and owed no debts; these rumors relate, not to any changed condition of affairs, but to his condition at the time we extended him credit as well as now; we have still a right to rely upon his statement to us, and we will do so.” Nor would it indicate a lack of business prudence on their part to do so.

The question for us is not how a jury will regard these transactions, but whether the court ought to have taken them from the jury altogether.

I am of the opinion that it ought not to have done so,‘ and that, for that reason, judgment should be reversed and a new trial ordered, costs to abide the event.


author: By the Court.—Sedgwick, Ch. J.—The

text:
    SAMUEL P. KNAPP, Appellant, v. ULRICH SIMON, Impleaded with Simon Donau and Christian A. Steen, Respondent.
    I. Agreement.

      1. Extrinsic evidence, to apply terms of.

    When parties use .a term which in itself, conveys no meaning, its meaning as used by them is to be determined by a reference to that which both had in mind when they used the term ; and to this end the transactions leading up to the agreement, the positions thereafter taken by them, and their situation at the time, are to be considered.
    1. “ Cobb Claims. ”—Thus where by an agreement between plaintiff and defendants, the defendants agreed to protect the plaintiff against the 11 Cobb claim,’’the fact that one Cobb had brought an action against defendants for merchandise by him sold to them through the plaintiff, and during the pendency of this action another action was pending, brought by plaintiff against defendants for merchandise sold and delivered by him to defendants, including therein the Cobb merchandise, upon the settlement of which latter action the agreement in question was made, and also the fact that neither Cobb nor plaintiff had asserted that the latter had bought the Cobb merchandise as broker without disclosing his principal, may be considered in determining what was referred to by the phrase “ Cobb claim.”
    Effect of these facts.—Their effect, nothing to the contrary appearing, is to show conclusively that the claim referred to was such claim as Cobb might have against the plaintiff for goods sold and delivered to him absolutely, and not a claim for goods sold to him as broker without disclosure of the principal.

      II. Judgment—Privies to—Res adjudicata—Evidence.

    1. Where one purchases merchandise of another, and his vendor sues him for goods sold and delivered, to which action he sets up as a defense that he purchased as broker of a third party, disclosing his principal at the time, and judgment goes against him, the third party having no notice of this action, is not privy to it, and the judgment does not establish as res adjudicata, or tend to establish as evidence, either that the purchase was made for him, or that the vendee disclosed or did not disclose him as the principal, m. Reversal of judgment against plaintiff; when not.

    1. Cause op action not contained in the complaint.
    1. When such judgment will not be reversed, on the ground that said cause of action has been conclusively made, or that the evidence was sufficient to carry the cause to the jury for its determination on that cause of action.

      (a) It will not be, where the evidence tending to support such cause of action, was received without objection, but was competent on the issues joined, and plaintiff’s counsel did not request the trial justice to charge the jury as to the obligations of the defendant under such cause of action.

      IV. Submission to jury.

      1. Issue whether certain goods were bought by plaintiff as broker for defendants, or on his own account and by him sold to defendants.

      (a) Under evidence that S. & Co. employed K., the plaintiff, to purchase certain wheat for them as their broker; that.plaintiff did purchase the wheat and directed Cobb, the vendor, to deliver it to S. & Co., and it was so delivered; that Cobb sued the defendants for the value of the wheat, as goods sold and delivered by him to them through K.; that pending this action K. also sued S. .& Co., for the value of wheat, sold and delivered by him to them (including therein the Cobb wheat) and for brokerage ; that the latter suit was settled, one of the terms of settlement being that S. & Co. were to protect plaintiff against the Cobb claim ; that afterwards S., one of the firm of S. & Co., settled the claim held against S. & Co. by Cobb by paying his portion thereof, and took a release under the act entitled an act for the relief of partners and joint debtors, passed April 18,1838, which release recited: “Whereas the late copartnership of S. & Co., has been dissolved and is indebted to Carlos
    Cobb in the sum of--, and interest ;” that subsequently Cobb sued K. for the value of the same wheat as and for goods sold and delivered, giving credit for the amount paid by said S., to which action K. put in it a defense that he bought as broker for S. & Co. and disclosed them as his principals; in which action judgment went for Cobb, against K, of which action, however, S. & Co. had no notice; and that K. paid its judgment recovered against him by Cobb ;
    HELD
    the determination of the above issue was properly submitted to the jury in an action subsequently brought by K. against S. & Co., to recover the amount paid by him, K., to Cobb for this wheat, under the charge, “If in this transaction the plaintiff acted as principal and made a sale of this wheat to defendants, he cannot recover in this action ; if on the other hand he simply acted as broker then you have a further question to consider and that is in respect to this release.”
    Y. Knapp v. Simon, 86 N. T. 315, distinguished.

    It seems the case there showed, either conclusively or as matter for the jury, that the Cobb claim, intended by the agreement made on the settlement of the former action of Knapp v. Simon, was a claim against Knapp, based on the fact that he had bought of Cobb as purchaser, while in fact he was broker for S. & Co. The present case shows that no such thing was proved at the last trial or assumed to be the fact at the time of the agreement.
    Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided December 30, 1882.
    The litigation arises out of a transaction which took place about October 23, 1868, between the plaintiff and one Cobb, resulting in the sale by Cobb of certain wheat.
    The complaint alleges that the plaintiff bought the said wheat from said Cobb for the defendants, at their request, as their broker, that the wheat was. delivered to defendant, that the total of the purchase money ■ with charges for measuring and towage, and interest thereon on October 28, 1869, amounted to $5,425.40, upon which day defendants paid said Cobb the sum of $1,688.32, leaving due and unpaid' the sum of $3,737.04, which the defendants have never paid.
    The complaint further set forth that said Cobb sued the plaintiff for the price or value of said wheat, and towage remaining so unpaid, and recovered a judgment for the sum of $5,554.30 ; that said Cobb also recovered a further judgment for costs, on appeal from said judgment, amounting to $106.51, and a further judgment for costs for $145.34, in the same action.
    It then set forth the payment by him (Knapp), on January 15, 1878, of said second judgment and the interest thereon, amounting to $6,498.36, and that no part thereof had been repaid to him. It then averred that said judgments were recovered against him “although the defendants were the principals in said transaction, and he was a mere broker and surety, under allegations and proof that he failed to disclose the defendants as his principals, all of which were at the defendants’ request, and for their use.” The complaint prayed judgment for $6,498.36, with interest from January 15, 1878.
    Only the defendant, Ulrich Simon, answered.
    By his answer he denied all the above allegations ; and alleged affirmatively that all the grain and merchandise which were purchased by defendants from plaintiff were so purchased from him as principal, and not as agent for Carlos Cobb or any other person; and also set up (among others), as affirmative defenses the statute of limitations and a release to him from Cobb of, and from all claims and demands arising out of the transactions in the complaint set forth.
    On the trial the plaintiff testified: “I have been a grain broker since 1863. I know the firm of C. A. Steen & Co. Its members were C. A. Steen, Simon Donau, and Ulrich Simon. Mr. Donau came to my office, and stated to me that they wished me to buy them a small quantity of wheat—say two thousand five hundred or three thousand bushels—and have it delivered to that distillery as soon as I could ; I did so that day; I bought three thousand and twenty-six bushels and eleven pounds of Mr. Carlos Cobb, and it was delivered by Mr. Cobb ; I ordered it of Mr. Cobb for this firm, I think, on October 23, 1868 ; I was to pay, I think, $1.62 a bushel; I had bought other grain for them about that time, aggregating, including this, somewhere in the neighborhood of $40,000 worth.”
    Two witnesses gave evidence in corroboration of this.
    Defendant Simon was asked, “You knew Mr. Knapp bought this grain as a broker for your firm ? ” and answered, “ I can hardly tell how he bought it—he charged brokerage. Yes sir.” It appeared on the trial that the wheat was delivered to defendant; that about November 5, 1868, Cobb brought an action .against these defendants for $5,064.95, the value of said wheat, with certain charges, alleging a sale and delivery thereof to them through the plaintiff; that this action was settled as to defendant Simon, October 30, 1869, by his paying' his part of the whole claim, and a release was given him under the act, entitled an act for the relief of partners and joint debtors, passed April 18, 1838, which release contained the recital, “Whereas the late copartnership of C. A. Steen & Co. has been dissolved, and is indebted to Carlos Cobb in" the sum of $5,064.95 and interest.”
    The evidence as to whether plaintiff consented to the giving of the release is contradictory.
    It further appeared that during the pendency of this Cobb action, another action was pending, brought by this plaintiff against the defendants to recover the value of certain lots of wheat, including therein the said lot sold by Cobb, alleging a sale and delivery thereof by. him to these defendants.
    The pleadings in this action were not in evidence. Its value was derived from the oral testimony. Plaintiff testified as to it, “ I could not get the money ; they refused to pay. I called on them for the money, then I could not get the money, and I sued them.”
    Defendant Simon testified, “he sued me for $39,000. There was $37,000 and odd for grain, and $1,000 and odd for commission.”
    This action was settled about April 8, 1869. The terms of the settlement as testified to by plaintiff, are best given in his language. He testified :
    “Mr. Ulrich Simon called me out of the court-room ; he said he wished to make a settlement, that he did not wish to have the matter go -further, and wanted to know what arrangement he could make with me; I said they could settle if they wished to pay and make a very easy arrangement ; he said they could not do that, but that he and Mr. Donan would pay me fifty cents on the dollar of my claim ; I said, “ Will you then take charge of the Cobb claim—bar that from me? ' Mr. Ulrich Simon said, “You never shall hear of that again ; that we will settle ourselves; you need never give yourself any uneasiness in regard to the Cobb matter, that we will settle then we agreed upon a basis of settlement, paying me fifty c^nts on the dollar, excluding the Cobb claim, which was deducted from the original amount, which was not settled then.
    One witness gave evidence in corroboration of this.
    Defendant Simon testified : “At the time I settled with Knapp, he gave me distinctly to understand I had to settle the one with Cobb also.” On his cross, the following questions were put and answers given. Q. “ You agreed to settle it ? A. I agreed to settle my portion. Q. And you say Mr. Knapp said you have got to settle that for yourself ? A. Yes, my portion. Q. Did he use the words ‘ your portion ? ’ A. Yes.”
    Defendant Simon did settle with Cobb for his portion, as above stated.
    It further appeared, that in October, 1873, Cobb commenced an action against the plaintiff, alleging a sale and delivery of the wheat in question, by him to,the plaintiff ; that this plaintiff, for defense to that action, set up that he bought the wheat, as. broker, for C. S. Steen & Co., and at the time disclosed his principals. In that action, Cobb recovered a judgment against this plaintiff for $5,554.30, being for costs of the action, and the price of the wheat and towage with interest, after crediting the amount as to which Steen had been released.
    Plaintiff paid this judgment, January 16,1878. Defendants had no notice of this action.
    The judge charged the jury : “If in the transaction the plaihtiff acted as principal, and made a sale of the wheat to defendant, he - cannot recover in this action, because his claim is outlawed.” (To this plaintiff’s counsel excepted.)

      If, on the other hand, he simply acted as broker in the transaction, then you have a further question to consider, and that is in respect to this release. Notwithstanding the release, if it was given by Cobb to the defendant, without the knowledge of the plaintiff, then plaintiff, having paid the money, can recover. On the other hand, if the plaintiff were present, or acquiesced in the agreement by which Simon was released, then the defendant is not liable.”
    The jury rendered a verdict for defendant. A motion for a new trial was denied. From the judgment entered on the verdict, and the order denying the motion for a new trial, plaintiff appealed to the general term.

      D. M. Porter,
    attorney, and of counsel for appellant, on the questions considered in the opinion urged:—(1.) Under the agreement whereby defendant undertook to protect plaintiff against the Cobb claim, the relation of the parties, whatever they may have been originally, became, as between them, that of principal and surety; the defendants becoming principal debtors to Cobb and the plaintiff surety for the defendant; the surety cannot recover of the principal until he has paid the debt. Therefore plaintiff’s cause of action under the agreement did not accrue until he paid the debt, which was not until January, 1878, and consequently this action having been commenced April, 1878, it was not bar-, red by the statutes of limitations. Citing numerous authorities. (2.) Notice by plaintiff to Simon of the pendency of the Cobb suit was unnecessary (citing many authorities). (3.) This charge of the court, to wit: “If, in the transaction, the plaintiff acted as principal and made a sale of the wheat to the defendants, the plaintiff cannot recover in the present action,” is erroneous, (<x.) Because there is no evidence that he acted as principal, but the evidence is uncontradicted that he acted as broker. The complaint in the suit of Cobb v. Steen shows that Knapp was simply broker, and that suit was pending at the time of the settlement. Simon does not testify that Knapp sold as principal; the evidence is uncontradicted that Knapp bought as broker. Reed so testifies and also Knapp. Simon testifies : “As I stated he (Knapp) sued us for $39,000 ; there was $37,000 and odd for grain and $1,100 and odd for commission.” (5.) Because under the agreement plaintiff was surety for the defendants, and as such having paid defendants’ debt is entitled to recover against them.

      Vanderpoel, Green & Cuming, attorneys, A. J. Vanderpool and H. N. Bookstaver, of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.—The

complaint alleged that, in October, 1868, the defendants requested the plaintiff to purchase, as broker, for them certain wheat of Carlos Cobb, and that the plaintiff, as such broker, did buy for the defendants the wheat for $5,064; that in October, 1868, the defendants paid said Carlos Cobb $1,688, leaving the sum of $3,737 due, which the defendants never paid; that thereafter said Carlos Cpbb sued the plaintiff for the price and value of the wheat remaining unpaid and recovered judgment against him for the amount claimed ; “ that the said Cobb recovered the said judgments against this plaintiff, although the defendants herein were the principals in said transaction and the plaintiff was a mere broker and surety, under allegations and proof that the plaintiff failed to disclose the defendants as his principals, all of which was at the defendants’ request and for their use.” The testimony established the facts about to be stated. In agreement with the allegations of the complaint, the plaintiff as a witness swore that the defendants’ firm requested him to buy the grain for them, and that on October 23, 1868, he ordered it of Mr. Cobb for the firm. The complaint, it has been seen, specifically states that he bought as a broker. The plaintiff gave no evidence to show that at any time down to January, 1878, he took the position, that he bought of Cobb apparently for himself but actually for defendants’ firm as their broker, not disclosing the agency. For in addition to what has already been noticed, his answer in the action of Cobb against him alleged that the wheat was purchased of Cobb by him only as a broker for the present defendants’ firm, and that Cobb knew that the wheat was purchased only by him as a broker and for the benefit of that firm. The plaintiff verified this answer ^f ter October, 1873, five years after the wheat was bought.

Soon after the wheat was bought in October, 1868, the plaintiff took a position at variance with that shown by the complaint and the proof. He brought an action against the defendants’ firm for the value or price of the wheat, as goods sold and delivered by him to them. If this were well founded, the fact asserted by the plaintiff must have been that he bought for himself of Cobb, and sold to the defendants’ firm.

* In this action last referred to, the plaintiff claimed to recover for other wheat sold by him to the defendant’s firm, which, with the Cobb wheat, amounted in value to about $40,000. The learned counsel for appellant has argued that this form of complaint as to the Cobb wheat was, “in other words alleging, in effect, that he had not disclosed the names of the buyers and sellers, and therefore brought suit as principal.” This seemed to me conclusively negatived, by the train of considerations that has been adduced, ending in his sworn answer of October, 1873, that Cobb knew that he acted as broker for the defendants’ firm.

I wish now to notice, the effect of the action of Cobb against this plaintiff, upon the relation of the defendant to the transaction. It has been noticed that down to the time of the beginning of that action, plaintiff did not claim that he bought of Cobb as broker in fact, but not so informing Cobb. There is no testimony tending to show that the defendant or his firm, were informed or had any reason to believe, that the plaintiff had bought in that manner, or that Cobb claimed that he had. There is no proof that the defendant knew of the action by Cobb, its nature, its progress, or its result. He swears he did not, until after the judgment was paid by the plaintiff 1878. In the case it is admitted that he had no notice of the action, or the complaint of Cobb against the plaintiff simply charged him as purchaser. The answer alleged that the present plaintiff bought as broker of the present defendants’ firm, and that Cobb so knew at the time.

The present complaint avers that Cobb recovered judgment inethis action “under allegations and proof that the plaintiff failed to disclose the defendants or his principals.” This averment was not proved. Cobb recovered from the plaintiff, on the purchase by him, he failing to prove that he bought as alleged in his answer.

While the action of this plaintiff against defendants’ firm was pending, another action, that of Cobb against defendants? firm was pending, and this the plaintiff' knew. Cobb alleged in his complaint, that he sold and delivered to the defendants’ firm, through the present plaintiff as broket, the wheat in question. The complaint did not, and it was not necessary to allege, whether at the time of the sale, the present plaintiff announced his agency for defendants’ firm.

The case does not show what was the answer of the defendants’ firm to this complaint, nor does it show what was the answer of defendants’ firm in the action of the present plaintiff against them. Although it may now be taken that there was an issue of fact in each action, its nature is not disclosed.

While these two actions were pending, contemporaneously and before April, 1869, negotiations began between the plaintiff and the defendants, for the settlement of claims in the action by the plaintiff against the defendants’ firm. There was an agreement finally made, as plaintiff testified, on which he relies in whole or in part to support this action. The agreement, according-to plaintiff’s testimony, was that defendant’s firm should, pay in a specified way, 50 per cent, of the claim for goods sold and delivered excepting for the wheat bought of Cobb. This 50 per cent, was afterward paid. The plaintiff further testified, that, in addition, he said to the defendant “will you then take charge of the Cobb claim, bar that from me?” and that to this the defendant said: “You shall never hear .of that again ; that we will settle ourselves; you need never give yourself any uneasiness in regard to the Qobb matter; that we will settle.” Now it is of vital importance, in the construction of this alleged agreement to determine to what both the parties referred in the phrase Cobb claim. The question, of course, is not, to what, if each had taken other positions than in fact were taken, they might have referred to % nor to what either in his own mind referred to ? but to what did they both refer, in the use of that term %

They must have referred to a claim against the present plaintiff. He, of course, would only stipulate for that. If Cobb was right in his action against the defendants’ firm, as stated in his complaint, and as this plaintiff swore in his answer to Cobb some years after, then the plaintiff appeared in the transaction as an avowed agent, and would not be liable to Cobb, and would have no claim against defendants’ firm except for brokerage.

But if his action against the defendants’ firm were well founded, as he asserted by bringing the action and then settling it, and as he therein sued for wheat sold by him to the defendants’" firm, his position, at the time of the agreement, was, that he remained liable to Cobb for the value of the same wheat as a purchaser of the wheat. He had bought the wheat of Cobb, and sold it to the defendants’ firm., If they paid him, he could pay Cobb. Or, if they paid Cobb, the same benefit resulted to him. It would be, in effect, the same thing if they settled with Cobb, for then he could not recover from plaintiff on an allegation that the plaintiff bought the wheat. This latter was the case on the assumption" of facts between the parties. Neither Cobb nor the present plaintiff had asserted that the latter had bought as broker without disclosing the principal. Cobb made no such claim until in his action in 1873. Noras against the defendant has it been shown tobe the fact. The conclusion seems to me to be inevitable that the claim which the parties stipulated should be settled, was such claim as Cobb might have against the plaintiff for goods sold and delivered to him absolutely, and not as broker, without disclosure of the principal.

If these be just views, then £he plaintiff could, in this action, only rely upon a cause of action arising out of the making of the agreement, for the reason before stated, that the only claim by Cobb from which the plaintiff at that time considered he was to be relieved, was such that it negatived the notion that the plaintiff had any claims against the defendants’ firm excepting as sellers of wheat to them. This latter cause of action has been barred by the statute of limitations.

But this action is not apon the agreement. The complaint contains no intimation that the plaintiff claims upon it. The learned counsel for the appellant takes the position that the making of the agreement operated as a request that the-plaintiff should do all the things alleged to have been done. We have seen that if this were right in principle it is not supported by the testimony. The only alternatives for the defendant are either that the plaintiff bought the wheat for himself of Cobb, or as broker, Cobb knowing the principal. If the latter be the fact, the defendant, who had no notice of the action of Cobb against the plaintiff, is not responsible for the consequences of the plaintiff not proving his defense in that action. It cannot be true, I say with deference, that when the testimony does not show that the agreement referred to any claim by Cobb against the plaintiff, based upon the relation of the defendant to the plaintiff as broker and principal, and the testimony does not show that, as a fact, the plaintiff was liable to Cobb on such a claim, the plaintiff can gain any rights by the result of the action, for which and for the testimony and want of testimony in it the defendants were not responsible. The defendant has never before this action been called and given a day to answer as to this. The claim, as stated in the complaint, evidently depends upon its being the fact, that plaintiff bought of Cobb actually as agent for defendants, but did not disclose that defendants’ firm were his principals.

The agreement referred to was given in evidence by the plaintiff, and contradictory evidence as to it was given by defendant. No objection was made to the evidence. It cannot, for that reason, be assumed that the parties acted as if the agreement were the substantive cause of action intended to be litigated. Evidence as to it was competent under the complaint, as it was to show that in the settlement of the action of plaintiff against defendant the claim of plaintiff, in regard to the Cobb wheat, had been accepted, and also in connection with the position assumed by the complaint as to the liability of plaintiff to Cobb, as ostensible purchaser, while, in fact, broker, to show that the defendant, in the agreement, recognized his' obligation to indemnify the plaintiff.

If the agreement created an independent cause of action, as was argued by appellant’s counsel, it, as described by the plaintiff, was made upon a valuable consideration, that is upon relinquishing plaintiff’s claim to one half of the other amounts due, and was a promise to protect plaintiff from Cobb’s claim, which we have already examined. This stood on its own feet, and was to be enforced the same as if there were no question that the plaintiff had not bought as broker, in any sense, the wheat from Cobb.

The counsel for plaintiff did not request the court to charge the jury, as to the obligations of the defendant under the agreement, as itself with a breach, making a cause of action. The only allusion in the charge to the agreement, as to the executory rights of the plaintiff under it, was, that for the reasons the judge stated, the plaintiff refused to include the_ claim by him against the defendant for the Cobb wheat, in the settlement.

The court charged that if the evidence showed that the plaintiff acted as broker in the transaction, the defendant was liable, unless he had shown that the release by Cobb to the defendant was made with the assent or concurrence of the plaintiff.

The court also charged, that <£ If in this transaction the plaintiff acted as principal, and made a sale of this wheat to the defendants, the plaintiff cannot recover in the present action.” The plaintiff’s counsel made to this the only exception to the charge. The charge seems clearly right under the circumstances. As the plaintiff did not claim under the agreement, if he did not act as broker for the defendant, the only claim he could have would be as a seller of wheat to the defendant. That claim was barred by limitation of time, as we have already said.

The court of appeals, in its opinion in • this case, on appeal (86 N. Y. 315), said that the defendants’ firm “ were originally liable to pay the plaintiff for the wheat which he had purchased for them, upon the obligation incurred by , the nature of the contract itself, and the plaintiff had a remedy against them for the price of the wheat sold, which liability does not depend upon the recovery of the judgment by Cobb against the plaintiff.” The application of this to the fact of plaintiff selling the wheat to the defendants, if such ■ were the case, is clear. It may be applied, perhaps, to the,, fact of the plaintiff buying from Cobb, as a broker, disclosing or not disclosing his principal; but in the latter contingency it was left to the jury, on the last trial, to say whether the plaintiff bought as broker.

It seems from the opinion of the court of appeals that the case then showed conclusively or as a matter for the jury to pass upon, that the Cobb claim, intended by the agreement was a claim against the plaintiff based upon the fact that the plaintiff had bought of Cobb as a purchaser, while in fact he was defendants’ firm broker. This cáse shows that no such thing was proved oh the last trial or assumed to be the fact at the time of the agreement.

It may be well to see if there were anything done or said by the defendant which would tend to show that at the time of" the agreement the parties to it meant to refer to a claim that Cobb might have against the plaintiff, although he in fact was broker for defendants’ firm. I can perceive nothing of the kind. What the defense was- to the action, in which plaintiff alleged that defendants’ firm had bought the Cobb wheat of him, is not shown. The defendant soon after the agreement paid to Cobb about $1,700 to procure a release for him individually from the claim made in Cobb’s action, that the defendants’ firm bought the wheat through the plaintiff as a broker. This is no admission that Cobb had in such a- case any claim against the plaintiff. And on the other hand, any dealing by Cobb with the claim as he made it in the action last referred to, especially any payment upon a satisfaction of it, would tend to relieve the plaintiff from Cobb’s claim, as the plaintiff asserted it to be, viz.: that of a vendor to the plaintiff.

The exception that has been particularly examined seems to present the only important question.

I am of opinion that the judgment should be affirmed, with costs, and that the order denying motion for a new trial made upon the minutes should be affirmed with $10 costs.

Freedman and Russell, JJ., concurred.


author: By the Court.—Freedman, J.

text:
    HIERONYMUS BREUNICH, Appellant, v. SARAH WESELMANN, Respondent.

      Usury—When mortgagor not estopped from setting up defense.— Plea of tender—when not conclusive admission.

    Where one who holds a mortgage as assignee of the mortgagee, brings an . action for the foreclosure of the same, and the proof shows that the loan secured by it was in fact made by said assignee; that the mortgagee was only a cover, and that the assignee did not rely upon the mortgagor’s affidavit, etc., against defenses, the latter is not thereby estopped from pleading the defense of usury.
    Where the proof in an action of foreclosure clearly shows that the mortgage was usurious, a plea of tender of a certain amount in the answer cannot be held to constitute a conclusive admission that such an amount is due, the answer also setting up the usuty as a defense.
    Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided December 30, 1882.
    Appeal from judgment in favor of the defendant directed by a judge sitting at special term for the trial of issues without a jury,- and from order allowing an amended answer.
    The facts are stated in the opinion.

      Kaufmann & Wagner, attorneys, and Lewis Sanders, of counsel, for appellant.

      Turner, Lee & McClure, attorneys, and David McClure, of counsel, for respondent.
   By the Court.—Freedman, J.

—This action was brought by the plaintiff to foreclose a mortgage of $1,800, which was made by the defendant to one William Ran, and assigned to the plaintiff.

The weight of the evidence clearly is that the loan for which the mortgage was given was made by the plaintiff to the defendant; that it was usurious ; that Rau’s name was used only as a cover, and that the plaintiff did not rely upon the defendant’s certificate and affidavit nor upon her verbal statement. The plaintiff therefore cannot be held estopped from showing the truth of the transaction.

The exceptions taken by the plaintiff to the exclusion of testimony are, under the circumstances of the case, not tenable.

The only question deserving special notice, is as to the effect to be given to the amended answer. At the close of the evidence on both sides the defendant moved that the answer be amended so as to conform to the proof. The decision of the motion was reserved and the case summed up. Thereafter the following memorandum was filed by the judge who tried the cause, viz.: “The second trial of this case has not removed the objections to the plaintiff’s recovery; I therefore find that the defendant have judgment, and that the answer be made to conform to the proofs. Findings to be settled on notice.” Upon this an order granting the motion was entered, with the following clause contained therein: “And it is further ordered that the amended answer which is hereto annexed, be filed with this order in the office of the clerk of this court, and that said answer be regarded as the answer of the defendant herein, and be substituted for and take the place of the answer of the defendant heretofore served herein.”

The effect of the amendments thus allowed, passing over those which are not complained of, was to strike from the answer a plea of tender of the amount aótually received on the bond and mortgage with interest, which plea had been established by evidence at the trial. As to such plea, therefore, the amendment allowed was not within the scope of the motion made. Moreover, it was an amendment in opposition to the proof. Under these circumstances, and the plaintiff having appealed from said order as well as from the judgment, the order should be reversed so far as it works a withdrawal of the plea of tender, if it should be found that the plaintiff was prejudiced thereby.

The plaintiff claims that he was prejudiced, because on the submission of the case he had requested the court to find that, as matter of law, the plea of tender of the sum of $1,435 by the defendant was a conclusive admission' that that sum at least was due, which request the court refused, and to which ruling the plaintiff excepted. The claim made depends upon the applicability of the legal proposition contended for as an universal rule.

In general, it is undoubtedly true, that a plea of tender is an unequivocal admission of the justice of the plaintiff’s claim to the extent of the sum tendered, and that to this extent there is no issue between the parties, and the plaintiff is entitled to receive at least the amount tendered, yet the rule applies only to cases in which there is a valid contract between the parties under which the sum due is the question in dispute. The statute prohibiting usury, expressly provides, however, that all contracts made and securities taken in violation thereof, shall be void (2 R. S. 6th ed. 1165, § 5), and that whenever any borrower of any money, goods, or things, in action, shall file a bill for a discovery of the money, goods, or things in action, taken or received in violation of the statute, it shall not be necessary for him to pay, or offer to pay, any interest whatever on the sum or thing loaned ; nor shall any court of equity, require or compel the payment or deposit of the principal sum, or any part thereof, as a condition of granting relief to the borrower, in any case of a usurious loan forbidden by the statute (Id. § 8).

Consequently the plaintiff has not been prejudiced by the amendments of the answer.

The case had been tried once before, and an opinion filed and a decision rendered in favor of the ’ defendant, when the plaintiff obtained leave to re-open the case to introduce further proof. The issues were retried by the same judge. It was at the end of this second hearing that the defendant’s motion was made to conform the answer to the proof. If, in consequence of the granting of the motion to the extent above stated, it had become necessary that the plaintiff should have a further opportunity to make proof, and application for it had been made, there is little doubt but that the application would have been granted. The plaintiff made no such request. Indeed, the case shows that he had every opportunity afforded to him, that he could reasonably claim, to prove the validity in his hands of the mortgage in suit, and that he was unable to' establish the fact.

Under these circumstances, and especially as the withdrawal of the plea of tender did not affect the final result, the order need not be disturbed.

The judgment and order appealed from should be severally affirmed with costs.

Sedgwick, Ch. J., and Russell, J., concurred.