text:
    THE PHENIX INSURANCE COMPANY, Appellant v. WILLIAM H. PARSONS, Survivor, &c., Respondent.

      Warranty by assignment of claim, implication of—Implied trust, raising of by letters—Warranty of title to, and validity of claim, matters constituting breach—Payment which might otherwise be referred to a contract, when consideration to support an assignment—Complaint, surplusage of averments will not impair a right of action sufficiently set forth—Complaint, dismissal of, effect of, exception to, not impaired by omission to except to refusal to direct verdict.

    Upon an assignment of a claim for a consideration paid, a warranty ia implied that the assigned claim is an existing valid one, (at least to the extent of the consideration paid,) which may be transferred, and that it had never been satisfied or discharged by the act of the assignor.
    Where parties having a demand against the owner of a vessel for money disbursed on the vessel and commissions, take out to cover such demand an open policy, loss payable to them or whom it may concern, and the following day receive a letter from the owner requesting them to have the advances secured, if they had not already done so, so that in case of loss they would not call on the owner for advances, and reply the next day by letter stating that they had covered the amount, the letters amount to a declaration of trust, or to an agreement that they would hold the policy for the owner, and apply the insurance money to the payment of the demand against the owner.
    Where, by agreement between an assignor and the person against whom the claim undertaken to be assigned existed, certain moneys payable by the assignee to the assignor were to be by him applied to the ex-tinguishment of the claim undertaken to be assigned, a payment of such moneys by the assignee to the assignor made before the execution of the assignment conditionally on its execution, operates (it being sufficient for that purpose) to extinguish the claim undertaken to be assigned, and there being nothing to pass by the assignment, there is a breach of the implied warranty.
    Where a contract contains a clause that one of the parties thereto shall not be bound to make a payment provided for if the other party makes or does any agreement or act past or future, whereby a right of subrogation which the former party would otherwise" have had to a right of recovery by the latter party against any person, is released or lost, the malting such an agreement, or doing such act, relieves the former party from any liability under the contract, and the payment by the former party to the latter of the sum thereby agreed to be paid, is not to be referred to the contract, but forms a good and sufficient considera- ■ tion for an assignment by the latter to the former of a right of recovery to which the former would otherwise have been entitled to be subrogated.
    Where a complaint sets forth enough to support an action for a breach of warranty, the action will be supported in that aspect, although it contains allegations which are superfluous to such a cause of action.
    The rights secured by an exception to a ruling dismissing the complaint are not impaired by an omission to except to the court’s denying plaint- . iff’s motion for a direction of a verdict in his favor.

      Application of above principles.—Defendants having a demand against the owner of. a vessel for advances and commissions, took out to cover such demand a policy of insurance on the vessel underwritten by plaintiff on March 31st of the tenor and character above indicated. On the ■ first and second days of April letters passed between the owner and the defendants of the nature and character above indicated. The vessel made a total loss Plaintiff refused to make payment under policy unless defendants would assign to it their demand against the owner. Defendants agreed to do so; thereupon plaintiff made payment and received an assignment as promised. The complaint contained many allegations of fraudulent representation or concealment, but striking out these there was sufficient left to support an action for a breach of warranty. Defendants moved for dismissal of the complaint, which was granted, and plaintiff excepted; then the plaintiff moved for a direction of a verdict in his favor, which was denied, and no exception taken. Held, that the judgment should be reversed.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided February 4, 1889.

      George A. Black, for appellant.

      Goodrich, Beady & Goodrich, attorneys, and William W. Goodrich, of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

The complaint was dismissed; and, as to that, the question now is whether there was sufficient proof to take the case to the jury upon issues presented by the pleadings.

The defendants had advanced, for the owners of a bark, certain moneys disbursed upon the bark, had procured a charter of the bark and were entitled to commissions for attending to the business. They took a policy of marine insurance upon the bark with the plaintiff in the sum of $1,500, payable to “ Parsons & Loud on account of whom it may concern.” The bark made a total loss. The defendants applied for payment of the policy. The plaintiff refused to pay unless the defendants would make certain instruments. The defendants made these instruments, and thereupon the plaintiff paid the amount named in the policy, save a few dollars.

One instrument was an indorsement upon the back of the master’s draft for disbursements, drawn upon the defendants and held by them in the sum of $1,125. The indorsement was, “In consideration of amount insured as advances on this vessel being paid, all claim on account of this draft is assigned to Phenix Ins. Co.”

The other instrument was “ For and in consideration of the sum of $1,500, the receipt whereof is hereby acknowledged, we hereby assign and transfer to the Phenix Insurance Company, etc., fifteen hundred dollars (amount insured by us in said Phenix Insurance Company, March 31, 1884, as advances) of our claim of $1,570.47, which we have against bark ‘ Elliott Ritchie ’ and owners for advances, commissions, etc., for her late voyage, etc., on which voyage she became a total wreck.”

I see no reason to doubt that from these assignments there arose an implied warranty that the claims described were existing, valid claims, to which the defendants had a title, which they might transfer, and that, at least, they had never been satisfied ór discharged by the act of the defendants. Ledwich v. McKim, 53 N. Y. 307 ; Ross v. Terry, 63 N. Y. 613.

The next question is whether there were facts upon which the jury might have found that there had been a breach of this warranty—that is, were the claims assigned valid, existing claims, which had not been satisfied or discharged.

At the time the policy was underwritten, that is on March 31, if the defendants insured for themselves and not for the benefit of the owners, or, in other words, had not agreed with the owners that payment upon the policy should discharge to the extent of the payment of the claim which the defendants had against the owners for the advances, then upon payment there would have been a claim to which the plaintiffs would have been subrogated.

The learned counsel for the respondent insists that at the time of the taking out of the policy they insured themselves only, and that there remained unimpaired their claim against the owners without an agreement that it should be discharged by payment to the defendants. I will assume that this is correct, at least, so far as the matter is to be determined by the facts that existed on March 31st, although the defendants charged the owners with the amount of the premium as paid on March 31st.

Afterwards, on April 1st, the owners wrote to the defendants, among 6ther things : “ Therefore, please get the advances insured, if you have not already done so, so that in case of loss you will not call on the owners for advances.” On April 2d the defendants answered : “We have covered the amount only to Buenos Ayres, presuming that the amount due would be remitted from there.”

I am of opinion that, from this time, at least, the defendants held the policy for the benefit of the owners, in the sense that payment upon it would extinguish the claim against them to the extent of the payment.

The letters amounted to a declaration of trust, or to an agreement, that the defendants would hold for the owners, the defendants being estopped from asserting want of consideration, the owners being induced by the answer of April 2d to forego obtaining insurance for themselves. And they contained evidence as to the nature of defendants’ acts in the taking out of the policy on March 31st.

Although in such a case there may be a right of subrogation, the ' insurer takes only the rights of the insured, as they are, upon payment of the policy. The insurer will have no substantive original claim in its own right against the third person. It is an equitable assignee. The third person, under circumstances like the present, may deal with the insured so as to extinguish the obligation between them, rightfully, as respects the insurer. The insurer must ascertain for himself what are the relations between the insured and the third person. The insured is not bound to inform the insurer on this subject. Kernochan v. The N. Y. Bowery Fire Ins. Co., 17 N. Y. 428. It would seem that the cited case is not an appeal from the case in 5 Duer 1. It is an appeal from a judgment in the case, after a new trial, as granted according to 5 Dmr 1.

The testimony disclosed that upon the payment of the $1,500 to the defendants, they consummated the arrangement, evidenced by the letters of April 1st and April 2d, and credited the owners with the amount upon the claim for advances, commissions, etc.

It therefore appeared on the trial that' there was a breach of the implied warranty, because the transaction based upon the previous agreement discharged and extinguished the claims that the assignments purported to transfer.

It is here argued by the learned counsel for the respondents that there was no consideration for the assignment or for the implied warranty, inasmuch as the $1,500 .paid to the defendants was already due to them by the plaintiff under the policy. Several considerations are revelant to this position. I advert to one of them. The policy was an open policy, loss payable to u Parsons & Loud on account of whom it may concern.” The entry in the book accompanying the policy was, with other matters “ (Description of goods-; seller of bills). Advances, $1,500; . rate of premium, 2^ per cent.”

The insurable interest which wrould sustain the policy, and the right of action upon it, in behalf of the defendants, would be the right to a lien upon the vessel and the indebtedness of the owners to them for the advances.

The policy contained the following provision: “ In case of a.ny agreement or act, past or future, by the insured, whereby any right of recovery of the insured against any persons or corporation is released or lost, w'hich wrould on acceptance of abandonment or payment of loss by this company belong to this company, but for' such agreement or act.....the company shall not be bound to pay any loss.”

In this case the letters of April 1st and April 2d, the policy being made March 31st, disclosed a future act of the insured by which the right- of the insurer to resort to the owners or the vessel or its proceeds through the claim for advances of the insured was lost. The operation of the arrangement was to provide for an ex-tinguishment of the claim to which the insurer would otherwise have been subrogated. For this reason the $1,500 paid was a consideration for the assignment, as there was no liability of the insurer upon the policy. Platt v. The R. Y. R. & C. R. Co., 108 N. Y. 358, and the cases there cited.

In this case the legal extinguishment of the claim of the insured against the owners occurred after the payment of the $1,500 as a consideration for the assignment, and so it may be argued the claims were in existence and were valid at the time of the assignment, and there was no breach of the implied warranty. This is not correct, for by the arrangement between the defendants and the owners the payment would extinguish the claim, and that payment was made before the execution of the assignment.

It .may be asked, How can the plaintiff take the position that the $1,500 payment was not upon the policy, when it takes advantage of an arrangement by which payment upon the policy was to be the thing which would extinguish the claim ? The answer to this is, that the testimony does not show an absolute payment of the loss under the obligations of the policy, but a payment conditional upon the execution of the assignment in its promissory as well as executed aspects, which include the obligation upon the implied warranty. There would be absolute payment subject to the defendants’ fulfilment of that warranty. And, on the other hand, the insurer could not interfere with the legal rights of the other parties to extinguish the claim, under the agreement between them, by their applying to the claim the $1,500, treating it between themselves as a payment of the loss.

I am of opinion, that, rejecting a good many allegations of the complaint as surplusage, there were left sufficient to support a cause of action of the kind that has been described in this opinion. The learned judge referred to it in supposing that the defendants did not covenant that their claim was valid.

The complaint did not proceed upon a fraudulent representation or concealment by the defendants as the gravamen of the action.

Up to this point it has not been necessary to say more than that the testimony was sufficient to take the case to the jury. The plaintiff’s exception to the dismissal of the complaint was, therefore, valid at the time. After the dismissal the plaintiff moved the court to direct a verdict for the plaintiff, but took no exception to the denial of the motion. There can, therefore, be no review of the denial. This does not impair the plaintiff’s right to a review of its previous exception, as I think, even if the case were such that on the motion to dismiss the complaint, it appeared that the motion should have been denied, for the reason that, on the undisputed facts, there should have been a verdict for the plaintiff. In my opinion, it did so appear.

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

Ingraham, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    FERNANDO R. WALKER, et al., Appellants v. THE GLOBE MANUFACTURING AND IMPORTING CO., Respondent.

      Contributory negligence—Tenants of floors under a common landlord,— Failure of one to exercise a power he possessed, and which he was under contract with the landlord to exercise, without which failure the injury to him could not have happened, e. q., shutting off Croton water, constitutes contributory negligence.

    Plaintiffs and defendant were lessees of a common landlord. Defendant occupied the second floor, attached to which was a water closet supplied with water from a tank over it, the pipe feeding the tank being fitted with a ball-cock working automatically, so that the cock remained open, permitting water to flow into the tank "until it reached a certain height, when the floating ball closed the cock and prevented any further flow of water. Plaintiffs occupied the first or ground floor, basement and sub-basement. On a certain morning plaintiffs’ premises were found wet and flooded, the ceiling over the ground floor dripping with water and a part of it fallen down. The water had run into the basement and sub-basement and injured plaintiffs’ goods. On investigation it was found that there had been fitted to the end of the pipe, which supplied the water closet with water, a rubber hose extending over the top of the tank beyond its outer edge, having a tin pipe attached to its end; the tank was empty, but the floor of the water closet was • wet. No water was flowing from the pipe when the discovery was made. Plaintiffs had control of the stop-cock in the basement whereby the entire water supply for the building could be cut off, and had by their written lease, under seal, covenanted with the common landlord to cause the Croton water to be shut off from the lofts of the building each night before leaving the premises. The water did not usually flow above the first floor except during the night.

      Held, that the ruling of the trial judge, that evert if the defendant was negligent, yet plaintiffs, by failing to exercise the power which they possessed of shutting off the water, and which they were under contract with the owner to exercise, were guilty of contributory negligence.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided February 4, 1889.

      Appeal by plaintiffs from judgment entered upon the dismissal of the complaint at the trial. The facts sufficiently appear in the opinion.

      John A. Mopes, attorney and of counsel for appellants, argued:—
    I. The defendant was guilty of gross and inexcusable negligence in so disarranging the water fixtures as to render wholly nugatory all the safeguards provided to prevent an overflow. tThe extension tube found upon the pipe on defendant’s premises necessarily diverted the flow of the water from its proper channels, and caused it to run upon the floor. Under such circumstances the damage was inevitable. Defendant being in the exclusive occupation of ■ that floor is prima facie chargeable with such negligence. Moore v. Goedel, cited below.
    II. The ordinary rules applicable to cases of contributory negligence do not apply to the facts of this case. Plaintiffs’ omission to turn off the water in no respect contributed to the injury sustained by them. It is true that the overflow would not have occurred if that had been done, but permitting the water to flow through the pipes provided for that purpose, did not cause or contribute to the accident. These pipes were all in good order and thoroughly equipped to prevent such a result. If the pipes and faucet had not been tampered with, the flow of water through them would have been harmless. It might as well be claimed that the owner of the building contributed to the result by putting the pipes in the building, without which no such accidént could have happened. The omission of the plaintiffs to turn off the water, and the overt act of the defendant in disarranging the fixtures, were entirely separate and distinct events, and had no connection with each other. The former in no way tended to cause the overflow, the latter directly produced it. As bearing on this, see Haley v. Earle, 30 N. Y. 208; Savage v. Corn Exch. Ins. Co., 36 Ib. 658; Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. (N. S.) 196.
    III. It was not even negligence on the part of the plaintiffs to permit the water to run through the pipes during the night. These pipes had been placed in the building for the purpose of supplying the upper floors with water. They were in good order, and provided with every safeguard to prevent such an occurrence as happened. As the water only rose to the defendant’s floor at night, the fixtures would have been useless, if the tanks were not permitted to fill during the. night. As between the plaintiffs and defendants it would have been an unnecessary .and ungracious interference with the rights and comfort of the latter to shut off the water when alone it could be available. Not to do so was certainly not negligence, as plaintiffs could not anticipate that the situation, perfectly safe in itself, would be wholly changed by a direct act of inexcusable negligence on the part of defendant. If the tenant of a lower floor in a large city is to be held guilty of negligence for such an omission, then such a tenant is left wholly without remedy for the consequences of the grossest negligence of those above him. The plaintiffs had a right to act upon the presumption that defendant would act in accordance with the rights and duties of both. Newson v. N. Y. Cent. R. R. Co., 29 N. Y. 383 ; Dobiecki v. Sharp, 88 Ib. 206; Gillespie v. City of Newburgh, 54 Ib. 470.
    IV. The provision contained in the lease is not available to the defendant as a defense to this action. Defendant was not a party to the lease. With this agreement on the part of Mr. Walker, defendant had nothing to do. He was' not a party to it, and it did not even appear that he knew of it. As to this, see Miller v. Woodhead, 104 N. Y. 471, 477; Larmore v. Crown Pt. I. Co., 101 Ib. 391, 394; Burke v. De Castro, 11 Hun 354, 356 ; Lake Ontario Shore R. R. Co. v. Curtiss, 80 N. Y. v. 47 Ib. 233 : Turk
      v. Ridge, 41 Ib. 201; Merrell v. Green, 55 Ib. 270; Vrooman v. Turner, 69 Ib. 280.
    V. Had the landlord himself been guilty of the overt act of negligence proved in this case, it is more than doubtful if the clause in the lease would have availed him as a defense to an action brought by plaintiffs.
    VI. The case of Moore v. Goedel, relied upon by defendant is not an authority in support of defendant’s position in this action. That case was decided on another principle entirely. Plaintiffs had wholly failed to prove the negligence of defendants. The court held that defendant, being in the common occupation with another firm, of the floor when the difficulty occurred, it could not be presumed that he was at fault in leaving the faucet turned on, while he positively proved that he had nothing to do with it. (The case had gone to the jury.) This disposed of the case. What was further said by the learned judge who wrote the opinion was pure dictum, and may not have been concurred in by his associates. But even as to that, the circumstances were entirely different from those of the case at bar. The promise to shut off the water was made by the tenant below to the co-occupants of that floor, who were also tenants. The damages occurred from simple failure to turn off a faucet, not from an overt act such as complained of here. This case has been repeatedly cited as an authority upon the question on which it was actually decided, but neither the reporter, nor any compiler of decisions nor any court, has ever cited it as an authority for the principle claimed by defendant in this action. On that question the opinion has been universally treated as obiter.

    VII. The true question involved in this case is this: Which of the two acts or missions was the proximate cause of the injury ? Shearman & Red. on Neg., § 33 ; Addison on Torts, § 34, page 27 of ed. of 1887; Trow v. Vt. Cent. R. R. Co., 24 Vt. 487; Button v. Hudson R. R. Co., 18 N. Y., at p. 258; Nelson v. N. Y. Cent. R. R. Co., 29 Ib. 383; Austin v. N. J. Steamboat Co., 43 Ib. 82; Kernwacker v. C., C. & C. R. R., 3 Ohio St. 172; Morrissey v. Wiggins Ferry Co., 43 Mo. 380; Richmond v. Sacramento R. R. Co., 18 Cal. 357; Stucke v. Milwaukie R. R. Co., 9 Wis. 202 ; Ind. R. R. Co. v. Cauldwell, 9 Ind. 397; State v. Manchester R. R. Co., 52 N. H. 528, pp. 553 to 556 ; Green v. Erie R. Co., 11 Hun 333; Kenyon v. N. Y. Cent. R. R. Co., 5 Ib. 479; affirmed 76 N. Y. 607.
    VIII. In any view of the question above discussed the case should have been submitted to the jury. If there was any doubt as to whether or not the plaintiffs’ omission to turn oil the water was negligence; whether or not it contributed to the injury; whether it or the defendant’s negligence was the proximate cause of the injury, or whether or not the defendant’s negligence was so gross as to.be equivalent to willful injury. Such doubts should have been solved by the jury. It was their province and not that of the court to decide such questions. It is only where the proofs conclusively show that the plaintiff has been guilty of negligence contributing directly to the injury suffered by him that the cour£ is warranted in dismissing a complaint of this character. The exceptions taken were well founded and should be sustained, and a new trial ordered.

      William H. Townley, attorney and of counsel for respondent, argued :—
    I. It is well settled that the burden of proof was on the plaintiffs to show that they were free from any negligence which contributed to the injury. Sherman & Redfield on Negligence, § 34. The injury must be solely caused by the negligence of the defendants. It is not enough that it should be essentially so caused. Grippen v. N. Y. Cent. R. R. Co., 40 N. Y. 34 ; see p. 51. A party claiming to have been injured by the negligence of another must fail in his action unless it appear that he was free from any negligence without which the injury would not have happened. The greatest negligence on the part of the defendant will not cure the defect of the least negligence contributing to the injury on the plaintiffs’ part. Cases of negligence form no exception to the rule that it is the judge’s duty to nonsuit where a verdict for the plaintiff would be clearly against the weight of evidence. Wilds v. Hudson River R. R. Co., 24 N. Y. 430.
    II. Moore v. Goedel, 34 N. Y. 527, affirming 7 Bos. 591, is a case in point on the question involved here, and, it is respectfully submitted, is conclusive against the plaintiffs.
    IH. This is not a case of the defendants seeking to gain the benefit of a contract to which they are strangers. 101 N. Y. 371, and other cases cited by plaintiffs’ counsel at the trial, have no application. We are not suing on a contract made between others. We are defending against a claim for damages based upon the affirmation, which must be proved, that the plaintiffs themselves were not at fault in the matter. The facts disclose that a neglect of duty on the plaintiffs’ part contributed to the accident. Therefore, there cannot be a recovery.
   By the Court.—Freedman, J.

The plaintiffs sued to recover damages for injury to a stock of paper on their premises, Nos. 16 and 18 Reade street, in the city of New York, which damages they claim were caused by the negligence of the defendant in permitting an overflow of water in a certain closet on the second floor of said buildings. The defendant at the time in question occupied the whole of said second floor as a tenant, and the plaintiffs, as tenants, occupied the first or ground floor and the basement and sub-basement.

At the trial the evidence, on the part of the plaintiffs, established the following facts, viz.: On the morning of April 7, 1887, plaintiffs’ premises were found wet and flooded. The ceiling over the ground floor was dripping with water, and part of the ceiling had fallen down. The water had run over the floor and down into the basement and sub-basement, and materially damaged plaintiffs’ stock. The defendant’s water closet on the second floor was supplied with water from a tank over the closet. The pipe which fed this tank was fitted with a ball-cock which worked automatically. The cock remained open, permitting the water to flow into the tank, until it reached a certain height in the tank, when the floating ball closed the cock and prevented any further flow of water On the morning in question it was found that a rubber hose had been fitted to the end of this pipe and extended over across the top of the tank beyond its outer edge, with a tin pipe attached to the end of the rubber hose. No water could flow into the tank while this extension tube was attached in the way it was found. The tank was empty, but the floor of the closet was wet. There was no water flowing from the tube when this discovery was made.

But it was also shown that the plaintiffs had the control of the stop-cock in the basement whereby the entire water supply for the buildings could be cut off. They had expressly covenanted with the owner of the premises “ to cause the Croton water to be shut off from the lofts of said buildings each night before leaving the premises.” This provision was contained in a written lease under seal made in 1875, which was renewed from time to time, and was in force at the time of the occurrence referred to. Plaintiffs usually did shut off the water during the cold weather, but they could not tell how many times they had not done so during the months of February, March and April, 1887. If the water had been shut off at the stop-cock in the basement no water could have ascended to any of the floors above the basement. The water did not usually run above the' first floor of the premises except during the night.

Upon this state of facts the trial judge, on defendant’s motion, dismissed the complaint on the ground that, even if the defendant was negligent, the plaintiffs, by failing to exercise the power which they possessed to shut off the water, and which they were under contract with the owner to exercise, although' that contract might not enure to the benefit of the defendant, if the defendant had been injured by reason of the water not having been shut off, were guilty of contributory negligence.

The ruling was correct under the decision of Moore v. Goedel, 34 N. Y. 527; affirming 7 Bosw. 591. True, that case involved, as an additional point, the insufficiency of the evidence to establish negligence in the particular defendants sued. But the point now under consideration was also involved, and it was held, both by this court and the Court of Appeals, that an undertaking by one of the plaintiffs to take charge of a water faucet in the cellar of the building occupied by them, and to see that the water was shut off at night, precluded the plaintiffs from recovering damages from tenants of an upper floor for injury caused by overflow during the night; and that plaintiffs’ failure to shut off the water was negligence which contributed to, and was a proximate, not a remote, cause of the injury. The undertaking referred to was a verbal promise made by one of the plaintiffs to Cromwell & Co., who were the landlords of the defendants. No promise was made by the plaintiffs to the defendants, and it nowhere appeared that the defendants in any way knew of plaintiffs’ promise to Cromwell & Co. Nevertheless it was held that plaintiffs’ failure to keep their promise was available to the defendants when sued.

The facts in the case at bar are just as strongly, if not more so, in favor of the defense as they were in Moore v. Goedel. In the latter case the promise, as stated,. was verbal and made between co-tenants, but not between the plaintiffs and the defendants sued. In the x present case the plaintiffs covenanted in writing under seal with the common landlord of the premises “ to cause the Croton water to be shut off from the lofts of said building each night before leaving the premises.” Under this covenant the plaintiffs assumed the duty to cause the water to be shut off every night not only from defendants’ loft, but from all the lofts. Under the doctrine of Moore v. Goedel it must therefore be held, that the owner and all his tenants were entitled to the protection of this covenant, at least so far as any claim for damages by the plaintiffs arising from their violation of it is concerned. This is not a case in which the defendant seeks to gain a benefit from the enforcement of a contract to which it is a stranger, but a certain defense is resorted to against a claim for damages based by the plaintiffs upon the affirmation which must be proved by them, that they themselves were not at fault in the matter.

The judgment should be affirmed with costs.

Sedgwick, Ch. J., and Truax, J., concurred.


text:
    JAMES J. MARTIN, as Committee, &c., Respondent v. ALICE WOODHALL, Impleaded, &c., Appellant.

      Extradition or requisition on, criminal charge—Party brought within jurisdiction of court thereby—When liable to service of process in civil pro-

    The rule is well settled as a matter of law, that if a defendant be brought within the jurisdiction of the court by any fraud or deceit, the service of civil process upon such defendant will beset aside (see cases cited in the opinion of the court).
    Under this general rule it was held in the case of Lagrave, 14 Abb. N. S. 333, that a party brought within the jurisdiction of the court, by requisition or extradition on a criminal charge which is a mere pretext, is not liable to the service of civil process at the suit of those who caused him to be so brought; but in Adrianee v. Lagrave, 59 N. Y. 110, it was held by the Court of Appeals that, while parties participating in bad faith in procuring the extradition of defendant for the purpose of arresting him on civil process when brought within the jurisdiction of the court, may not be allowed to receive an advantage from their wrongful acts, this rule does not apply to creditors and others not concerned in the trick or device by which the defendant was brought within the jurisdiction. As against them the defendant cannot raise the question that the offence with which he was charged in extradition proceedings was not within the treaty between our government and the government from whose territory he was extradited, or that the latter government was deceived or defrauded.

      Held, in the case at bar, that a defendant, in order to sustain the objection that she was brought by criminal proceedings and against her will within the civil jurisdiction of the courts of this state, must establish two things, viz.: 1. That the criminal proceedings were instigated by the creditor or person who attempts to subject her to the civil jurisdiction, and 2. That such creditor or person was guilty of a wrongful act in the instigation of the criminal proceedings.
    The defendant wholly failed to establish the second point, even if it be conceded that she sufficiently established the first. For all that appears the warrant of extradition was in strict compliance with the law and the treaties, and the defendant may have been guilty of the very offence charged against her and for which she was brought back. She nowhere claimed that she was innocent of the offence for which she was extradited, or that the offence charged against her was not covered by the law or the treaties. In view of all this, and in the absence of evidence showing bad faith, it cannot be held that the parties who set on foot the criminal proceedings were guilty of a wrong act in doing so.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided February 4, 1889.
    Appeals by defendant (1) from order denying her motion to set aside the order for the examination of a third party alleged to have personal property of the defendant, a judgment debtor, in his possession; (2) from order denying her motion to set aside the order by which a receiver of her property was appointed in proceedings supplementary to execution without notice to her; and (3) from order and supplemental order directing the said third party to deliver the personal property of the defendant in his possession to the receiver.

      Martin & Smith, attorneys, and Aaron P. Whitehead of counsel for appellant, argued:—
    I. Section 2441 of the Code of Civil Procedure, under which the order for the examination of John Tunbridge was obtained, is not intended to apply to any person or corporation in a foreign country, and as both the defendant and the third party, whose examination was ordered, were on the high seas at the time the order was made, it was void.
    II. The order appointing the receiver was made without notice to either of the defendants, and before the third party had been examined, and, of course, before any property had been discovered, and the order appointing the receiver .did not direct that notice to the defendant should be dispensed with, or that any notice should be given. It is for these reasons void.
    III. All the orders should be set aside, because the defendant was brought within the jurisdiction of this court ostensibly upon a criminal charge, but in reality to enable the plaintiff to obtain property in the hands of a third person, who necessarily attended the defendant, and had charge of her and her property. The rule is well settled, that if the defendant be brought within the jurisdiction of the court by any device whatsoever, any proceedings taken against the defendant are void, and will be vacated and set aside. Metcalf v. Clark, 41 Barb. 46 ; Carpenter v. Spooner, 2 Sandf. Sup. Ct. 717; Baker v. Wales, 14 Abb. N. S. 331; Goupil v. Simonson, 3 Abb. 474; Snelling v. Watrous, 2 Paige 314; Wells v. Gurney, 8 Barn. & Cressw. 769 ; Stein v. Valkenhuysen, E., B. & Ellis 65. In a suspicious case the court will consider the burden on plaintiff to clear himself of a charge of device to bring the defendant within the jurisdiction. Steiger v. Bonn, 4 Fed. Rep. 19, Circuit Ct. Dist. of N. J.

    IV. A party brought within the jurisdiction by requisition or extradition on a criminal charge is not liable to the service of process in civil proceedings at the suit of those who caused him to be brought within the jurisdiction, and therefore no proceedings can be taken against a third party who accompanied the prisoner necessarily, and carried with him property of the defendant necessarily. Lagrave’s Case, (Supreme Court, lsi District,) 14 Abb. N. S. 333, and see cases there cited; Underwood v. Fetter, 6 N. Y. Legal Obs. 66; Bacharach v. Lagrave and Adriance v. Lagrave, 4 N. Y. Supreme Court 215; Adriance v. Lagrave, 59 N. Y. 1.10; Spear on Extradition, pp. 341-345, 346; U. S. v. Watts, 14 Fed. Rep. 130.

      Cecil C. Higgins, attorney for respondent, argued :—
    I. It cannot be disputed, in view of section 2464; Code of Civil Procedure, that the judge may make an order appointing a receiver at any time after making an order for the examination of the third party. The order for the examination of the third party was made May 31,1888. Subsequently and on June 1, 1888, the order appointing a receiver was made. Therefore, in this respect, the requirements of the statute were exactly fulfilled.
    II. The statute also provides that at least two days’ notice of the application for the order appointing a receiver must be given the judgment debtor personally, unless the judge is satisfied that he cannot, with reasonable diligence, be found within the state. The affidavit of Mr. Parris stated, in the exact words of the statute, that Alice Woodhall was not within the state of New York, and could not, with reasonable diligence, be found within the same. Furthermore, the affidavit of her attorney, Mr. Whitehead, shows that as a matter of fact, she was at the date mentioned at sea on board the steamer Ohio. The facts, therefore, before the court were, in strict fulfillment of the requirements of the statute. The objection of want of notice to the judgment debtor is met by the express language of the section making notice discretionary with the judge. Gibson v. Haggerty, 37 N. Y. 555.
   By the Court.—Freedman, J.

The technical objections raised to the orders appealed from, present only questions of practice and do not affect the jurisdiction. They have been carefully examined and found to be untenable under the circumstances of the case.

It, therefore, remains to be seen whether the orders should be set aside because, as is claimed, the defendant was brought within the jurisdiction of the court ostensibly upon a criminal charge, but in reality to enable the plaintiff and his successor in interest to obtain property in the hands of a third person who necessarily attended the defendant and had charge of her and her property.

The facts, as they appear in the printed record, are substantially as follows:

In January, 1885, a judgment was obtained and docketed by the plaintiff in this court against the defendants for $82,518.75, and a transcript thereof filed in the office of the clerk of the city and county of New York. Execution was thereupon issued to the sheriff of the city and county of New York, where the defendants last resided. The execution was returned wholly unsatisfied, and the judgment remains wholly unpaid. John Gill died on July 28,1885, intestate. The plaintiff made his report as committee of the estate of the intestate to this court and was discharged from his trust. Thereafter Robert Gill was appointed by the surrogate administrator of the estate of the intestate, and as such he is the only person entitled to collect said judgment and to institute proceedings for its enforcement.

The defendant, Alice Woodhall, was arrested in England on March 12, 1888, upon a provisional warrant of extradition, on a charge of forgery committed within the United States. She was taken before a magistrate and finally committed to stand trial in the United States. A warrant of extradition was issued by the English authorities whereby a police officer, John Tunbridge, was directed to convey Alice Woodhall to the United States, and a supplemental warrant was issued by the United States legation in London whereby the officer was directed “to take said Alice Woodhall into his custody, and conduct her to the United States of America, and there deliver her to such person or persons as the president of the United States might authorize to receive her. And if no such person shall appear duly authorized by the president of the United States to receive said Alice Woodhall, then to deliver her, the said Alice Woodhall, into the custody of the United States marshal for the Southern District of New York, in the city of New York, to be held by said marshal, subject to the order of the president of the United States.”

At the time of her arrest, John Tunbridge, the police officer who arrested her, found upon her person and in her room certain coupons and Bank of England notes, which he seized as police officer, and retained as evidence of her guilt. He brought this property with the defendant to New York. He and the defendant left England on the 23d of May, 1888, on the steamship Ohio, and they arrived in the harbor of New York on the 2d of June, 1888. On the 31st of May, 1888, while the defendant and the police officer were on the high seas, the attorney for Robert Gill, as administrator of the estate of John Gill, deceased, obtained an order in this action for the examination of John Tunbridge as an alleged third person having property in his possession belonging to the defendant, which order enjoined him from disposing of the property in any way. On June 1, 1888, a receiver was appointed of defendant’s property. On the arrival of the officer with the defendant on June 2, 1888, the officer handed the defendant over to the custody of the United States marshal, but was stopped by order of the court from handing over the property in his possession. He was thereupon examined pursuant to the order, and at the close of his examination the orders were made directing him to deliver all the property of the defendant in his possession to the receiver. Prior to that the defendant moved to set aside the order for the examination of Tunbridge and the order appointing a receiver, which motions were denied. The appeals are from the orders denying these motions and from the orders directing Tunbridge to deliver the property to the receiver.

As matter of law, the rule is well settled that if a defendant be brought within the jurisdiction of the court by any fraud or deceit, the service of process upon him will be set aside. Snelling v. Watrous, 2 Paige 314; Carpenter v. Spooner, 2 Sand. Super. Ct. 717; Goupil v. Simonson, 3 Abb. 474; Baker v. Wales, 35 N. Y. Super. Ct. (3 J. & S.) 403.

In Metcalf v. Clark, 41 Barb. 46, the service of the summons, and all proceedings dependent thereon, were set aside and a warrant of attachment vacated.

In the case of Lagrave, 14 Abb. N. S. 333, it was . held by Fajstcher, J., that a party brought within the jurisdiction by requisition or extradition on a • criminal charge which is a mere pretext, is not liable to the service of process in civil proceedings at the suit of those who caused him to be brought within the jurisdiction, and that such party, if arrested in a civil action, is not bound to move in that action to set aside the service of the order of arrest, but may resort to habeas corpus and certiorari.

In Adriance v. Lagrave, 59 N. Y. 110, it was held, however, that while parties participating in procuring the defendant to be brought by extradition proceedings within the jurisdiction of the court, in bad faith, for the purpose of arresting him on civil process, may not be allowed to receive an advantage from their wrongful acts, the rule does not apply to creditors not concerned in the trick or device by which the defendant was brought within the jurisdiction. By them, it was held by the Court of Appeals, the defendant may be caused to be arrested under civil process, and as against them the defendant cannot raise the question that the offence with which he was charged in the extradition proceedings was not within the treaty between our government and the government from whose territory he was taken, or that the latter government was deceived or defrauded.

From the foregoing authorities it sufficiently appears that a defendant, in order to sustain the objection that he was brought by criminal proceedings and against his will within the civil jurisdiction of the courts of this state, must establish two things, viz.: (1) That the criminal proceedings were instigated by the creditor or person who attempts to subject him to the civil jurisdiction, and (2) that such creditor or person was guilty of a wrongful act in the instigation of the criminal proceedings.

In the case at bar, the defendant wholly failed to establish the second, even if it be conceded that she sufficiently established the first. For all that appears the warrant of extradition was in strict compliance with the law and the treaties, and the defendant may have been guilty of the very offence charged against her and for which she was brought back. She nowhere claimed that she was innocent of the offence for which she was extradited, or that the offence charged against her was not covered by the law or the treaties. In view of all this, it cannot, in the absence of evidence showing bad faith, be held that the parties who set on foot the criminal proceedings were guilty of a wrongful act in doing so. The appeals must be determined upon the facts as they were made to appear in the course of the proceedings below, and consequently subsequent occurrences cannot be taken into account. For all that appears the parties who instigated the criminal proceedings and the parties who managed the civil proceedings did no more than under the circumstances they had a right to do.

The views already expressed render it unnecessary to consider the further question whether, in the enforcement of the rule as to abuse of process, as above stated, a distinction should or should not be made between process served upon the defendant personally and process served upon a third party accompanying the defendant and having property of the defendant in his possession.

The orders appealed from should be severally affirmed with .costs and disbursements.

Sedgwick, Ch. J., and Truax, J., concurred.


text:
    ALOIS JONASCH, an Infant, etc., Respondent v. THE STANDARD GAS COMPANY, Appellant.

      Negligence and contributory negligence.

    The plaintiff, an infant about six years old, seeks to recover damages for an injury to his hand caused by defendant’s alleged negligence in leaving a derrick on the street unfastened and unguarded.
    At the time of the injury, that occurred on a Sunday, the plaintiff and other boys had been playing in the street in the vicinity of the derrick, and plaintiff sat down on the drum or cylinder of the derrick to peel some peanuts. While in that position and thus occupied, some boy turned the wheel of the derrick, and the plaintiff, to save himself from falling, grasped instinctively for support, and, in doing so, his hand was caught in the cogs of the cog-wheel of the derrick and one of his fingers was crushed. The plaintiff at the time was in charge of his brother, who was eleven years old, and accustomed to have the care of the plaintiff on the street by the direction of the parents of plaintiff
    The trial judge left it to the jury to say whether the plaintiff was or was not sui juris, whether he was or was not guilty of contributory negligence ; aiid in case he was sui juris, whether the plaintiff’s brother or his parents were or were not guilty of contributory negligence; and in regard to the negligence of the defendant, the Mai judge left it to the jury to say: (1) whether the derrick, in the condition and place where it was left by defendant, was or was not a dangerous machine and likely to cause injury to children if left unguarded or unfastened; (2) whether, as a matter of fact, it was left unguarded or unfastened or both ; and (3) if it was both dangerous to children, and unguarded and unfastened, whether that condition, as a matter of fact, constituted negligence in the defendant.

      Held, that the disposition of these questions by the Mai judge was, under all the circumstances appearing in evidence, as favorable to the defendant as he could expect; that there was no error in this submission, and there was sufficient evidence to sustain the same; and although the defendant produced sufficient evidence that, if believed by the jury, would sustain a verdict in his favor, but the result was only to create a conflict of evidence which the jury had to determine. That the instructions given to the jury, in their entirety, covered all that the defendant was entitled to, and the exceptions to the refusals of the judge to charge differently, are untenable.
    That no error appears in any of the rulings of the trial judge, nor any sufficient reason for disturbing the verdict of the jury; nor can it be maintained that the verdict was excessive.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 4, 1889.
    Appeal from judgment entered in favor of plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

      J. W. Hawes, for appellant.

      F. Kurzman, for respondent.
   By the Court.—Freedman, J.

This action was brought by the plaintiff, an infant, to recover damages for injury to his hand alleged to have been caused by defendant’s negligence in leaving a derrick on the street unfastened and unguarded. At the time of the injury, which occurred on a Sunday, the plaintiff was about six years old. He and other boys had been playing on the street and in the vicinity of this derrick, and then the plaintiff sat down on the drum or cylinder of the derrick to peel some peanuts. While in that position and thus occupied, some boy turned the wheel of the derrick. The plaintiff, to save himself from falling, grasped instinctively for support, and, in doing that, his hand Avas caught in the cogs of the cog-wheel, and one of his fingers Avas crushed. The plaintiff at the time Avas in charge of his brother, who was eleven years old, and accustomed to have the care of the plaintiff on the street by direction of his parents.

The trial judge left it to the jury to say AAdiether the plaintiff was or was not suijuris ; whether he was or was not guilty of contributory negligence in case he was sui juris; Avhether plaintiff’s brother Avas or was not guilty of contributory negligence, and whether plaintiff’s parents were or were not guilty of contributory negligence. The disposition thus made of these questions Avas, under all the circumstances appearing in evidence and in view of the instructions given to the jury, as favorable to the defendant as the latter could expect. Perhaps it was even more so.

Upon the question of defendant’s negligence the trial judge left it for the jury to say: (1) whether the derrick, in the condition and place where it was, was under all the circumstances a dangerous machine and likely to cause injury to children if unguarded or unfastened; (2) whether as matter of fact, it was left unguarded or unfastened or both; and (3) if it was both dangerous to children and unguarded or unfastened, whether that, as matter of fact, constituted negligence in the defendant.

There was no error in this submission. There was evidence on behalf of the plaintiff that the derrick was left in a portion of the city that is quite thickly inhabited ; that, as it was left, and bearing in mind the known curiosity and mischievousness of children, it was likely to cause injury to children unless guarded or fastened, and that at the time of the injury it was both unguarded and unfastened.

The defendant, it is true, produced evidence to the contrary, and sufficient, if believed by the jury, to sustain a verdict in favor of the defendant, but the result of it was only to create a conflict which the jury had to determine. The case was therefore properly submitted to the jury as above stated.

Moreover, the jury were expressly instructed to the effect that the defendant was not bound to keep a watchman there all the while; that if the derrick, as left, was a dangerous machine the defendant was bound only to use some precaution to prevent children from injuring themselves; and that if the wheel of the derrick was left fastened, the defendant was not bound to anticipate that any one would cut the fastenings, but in such case had a right to rely upon the strength of the rope and had done all that the law required to be done, and therefore was entitled to a verdict. The jury were also carefully instructed as to the burden of proof which was cast upon the plaintiff as to every proposition submitted.

The instructions given to the jury, in their entirety, covered all that the defendant was entitled to, and the exceptions taken by the defendant to the refusals of the trial judge to charge differently are untenable.

Upon the whole case no error appears in any of the rulings of the trial judge, nor any reason for disturbing the verdict of the jury. Nor can it be maintained that the verdict was excessive.

The judgment and order should be affirmed with costs*

Sedgwick, Ch. J., and Ingraham, J., concurred.


author: By the Court.—Truax, J.

text:
    ALFRED H. SMITH, et al., Respondents v. WILLIAM H. PAYNE, et al., Appellants.

      Judgments by confession assailed as fraudulently obtained; as also general assignment in connection therewith. Injunction sought by attachment creditors against sheriff and the judgment creditors. Rights and duties of a general assignee in regard to fraudulent judgments against his assignor.

    A. andB. confessed judgments in favor of C. and D., relatives and personal friends, upon which executions issued to the sheriff, who levied the same upon the property of A. and B. Two days after said judgments were confessed A. and B. made a general assignment of all their property to E., which was duly recorded. Afterwards F. and G., other creditors of A. and B., commenced actions against A. and B. to recover their demands, and obtained attachments against their property, which were issued to the same sheriff, and F. and G., tire attachment creditors, commenced an action against the aforesaid judgment creditors and the sheriff, claiming that the judgments were fraudulently obtained and that the assignment was made by A. and B. with intent to defraud their creditors, and seeking as relief to enjoin the judgment creditors from receiving, and the sheriff from paying to them, the money made on the executions issued to Mm upon the judgments so confessed; but the attachment creditors did not make the assignee a party to that action, nor seek to vacate and set aside the general assignment.

      Held, that the general assignment having been admitted by all parties, and the general assignee not having been made a party to the action, said general assignment remains in full force and effect, and F. and G., said attachment creditors, are not in a position to assail the prior judgments and executions, and are not entitled to the injunction sought and obtained in their action, and it must be vacated. The right to controvert and assail those judgments on the ground that they were fraudulently obtained, etc., rests in the general assignee and not in the creditors (Loos v. Wilkinson, 110 N. T. 195-209) ; and the assignee is liable for a negligent omission to assail fraudulent transfers made by the assignors prior to the assignment. (In re Cornell, 110 N. T. 351.)
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided February 4, 1889.

      Appeal from an order made at special term continuing an injunction pendente lite.

      Franklin Bien, attorney for respondents, argued :—
    The first point raised by the appellants in the court below was that, although plaintiffs were attaching creditors, they were not entitled to an injunction in that they were not judgment creditors. That although the greatest frauds could be perpetrated that there was no remedy except for a judgment creditor. That a fraud could be carried out before a creditor could obtain a judgment and stop the fraud, and that the court would not step in and prevent the fraud because forsooth the creditor was without a judgment, thus giving legal color to the fraud by allowing the courts to be used to carry it out by means of confessed judgments, etc., and then saying we can use the courts to do it, but you cannot use the courts to stop it, because you are without judgments. Courts have in all times stretched out their protecting power to the innocent against the fraud. The first case of this kind (similar to the one at bar) was the case of Bates v. Plonsky, 28 Hun 112. There the same questions were raised as here, no judgments only attachments, yet the court held the remedy the proper one, and affirmed the order continuing the injunction.
    Keller v. Payne, 48 Hun 620, was precisely as the case now under discussion. It was against these same defendants and argued by the same counsel at special term. The facts in this case are much stronger than in Kellogg v. Payne. Under these authorities we claim the court had legal power to act.

      L. Laflin Kellogg, attorney for appellants, argued :—
    I. The attaching creditors have no standing in court to bring this suit. The right of action in the present case is entirely with the assignee. This rule is well established. The confessed judgments are the first lien, by virtue of the execution of date December 28, 1887. The assignment was filed December 29, 1887. The attachments followed at different dates thereafter, to wit, December 29th and 30th, and after both judgments and assignment. “ The right of action to set aside a fraudulent conveyance of the debtor’s property made before the execution of an assignment is vested in the assignee alone.” Swift v. Hart, 35 Sun 128. In the event of the refusal of the assignee to bring the action the judgment creditor might do so, after demand. In this case there is no proof of demand or refusal. “ In a creditor’s suit brought for the purpose of removing a fraudulent obstruction plaintiff must show that the removal will enable his judgment to attach upon the property.” Spring v. Short, 90 N. Y. 538. In the case at bar this judgment cannot attach to the property for the reason that if the confessed judgments are set aside the assignment will intervene. The plaintiffs in this action ask for no relief against the assignment. The assignee is not even a party.
    II. The plaintiffs, as attachment creditors, have no standing in court to warrant them in commencing this action. This right only belongs to judgment creditors, “ To entitle a plaintiff to maintain an action to set aside the conveyance of- his debtor, it is essential that he should establish his character as a judgment creditor.” Adsit v. Butler, 87 N. Y. 585. “ Án ordinary creditor has no standing in court to attack conveyances.” Tradesmen’s Bank v. Wetmore, 22 Sun 360. “An attachment creditor could not maintain an independent action in the nature of a creditor’s bill to set aside an alleged fraudulent assignment by the debtor.” Thurber v. Blanck, 50 N.Y. 80.
   By the Court.—Truax, J.

The plaintiffs allege that the defendants, William H. Payne and Frederick D. Steck, were indebted to them and others in various amounts; that they, the plaintiffs, commenced various actions to recover such amounts and that they obtained attachments against said defendants, William H. Payne and Frederick D. Steck, which attachments were duly issued to the sheriff of the city and county of New York; that prior to the commencement of said actions and to the issuing of said attachments, the said defendants, William ti. Payne and Frederick D. Steck, confessed judgments to the defendants, Mary L. Payne, Augusta L. Bamber and Louise Nellis; that executions were issued on said judgments to the sheriff of the city and county of New York, who thereupon levied upon all the property of the said defendants, William H. Payne and Frederick D. Steck; that thereafter said Payne and Steck made and executed a general assignment to one Arthur H. Smith; that said judgments were fraudulently confessed, and that said assignment was made with the intent to hinder, delay and defraud the creditors of said William H. Payne and Frederick D. Steck, and that the executions issued on said fraudulent judgments are liens, and said assignment is an incumbrance on the property of said Payne and Steck prior to the liens of the attachments issued as aforesaid in behalf of the plaintiffs; that the sheriff is about to pay to the said judgment creditors the money made by him on the executions issued on said fraudulent judgments, and the relief demanded is that the said defendants, Mary L. Payne, Augusta L. Bamber and Louise Nellis be enjoined from receiving, and the said sheriff be enjoined from paying to them, the moneys made on said executions “until the plaintiffs herein are enabled to obtain their judgments on the claims brought by them, on which attachments were issued as aforesaid, in order to determine the validity of the judgments upon which the executions were issued to the sheriff in favor of the defendants as aforesaid.”

It is to be noticed that the general assignee is not made a party to this action, and that as far as this action is concerned, said general assignment remains in full force and effect.

The defendants, the judgment creditors above named, deny the allegations of fraud, but admit the general assignment. We do not, however, consider it necessary to determine on this appeal the questions of fraud as to the confessions of judgment. We cannot determine the question of fraud as to the assignment because the assignee is not a party to this action.

On the argument of this appeal the plaintiffs relied on the case of Bates v. Plonsky, 28 Him 112. That case differs from the case now before us in a very material aspect; in that case, as in this, there were judgments, executions and an assignment, which were all alleged to be fraudulent and void, but in that case the assignee was made a party, and part of the relief asked was that it be adjudged that the plaintiffs had a lien prior to the claim of the assignee. But even that case was limited by the same court in the subsequent case of Bowe v. Arnold, 31 Hun 256.

We are of the opinion that the plaintiffs are not in a position to assail the prior judgments and executions as long as the general assignment remains in force. They have alleged the making and recording of the assignment, and have made the assignment itself a part of their moving papers. As long as that assignment remains in force, the right to assail the judgments and executions on the ground that they are fraudulent against creditors, rests not in the creditors themselves, but in the assignee. Loos v. Wilkinson, 110 N. Y. 195-209, and cases there cited. And the assignee is liable for a negligent omission.to assail fraudulent transfers made by the assignors prior to the assignment. In re Cornell, 110 N. Y. 351.

The order appealed from is reversed with costs, and the injunction is vacated with $10 costs.

Sedgwick, Ch. J., and Ingraham, J., concurred.


author: By the Court. — Ingraham, J.

text:
    LEWIS M. TEEL, Respondent v. ABRAHAM YOST, Appellant.

      Judgment of a court of record of another state, proof of— Essentials of such a record.

    The plaintiff to prove his cause of action, offered in evidence an exemplified copy of a portion of the record of the Court of Common Pleas of Northampton county, commonwealth of Pennsylvania. It was there stated that among the records of that court (it is thus contained) “ Continuance Docket, entry of December term 1877, Lewis M. Teel vs. Abraham Yost, D. S. B. $2,268.00. And now, Jan’y 14, 1878, a single bill under the hand and seal of the defendant, dated Jan’y 12, 1878, wherein he promises to pay to the plaintiff, or order, one year after date twenty-two hundred and sixty-eight dollars containing a clause authorizing the entry of judgment, waiving stay of execution, with ten per cent for collection fees, is produced hereto to have judgment entered thereon; wherefore judgment.” With the exception of some assignments, this is the whole transcript of the record.
    In this case, it appears that the note upon which the judgment was based became payable January 12, 1879, while the proceeding or record claimed as a judgment, is of the date of January 14, 1878. There was no evidence of any law in Pennsylvania, that would authorize a judgment to be entered upon a note that had a year to run, or that would in any way explain the meaning of this record.

      Held, that this record was not evidence of any judgment in favor of the plaintiff and against the defendant for any sum of money, and would not justify a presumption that'any question was adjudicated between the parties. The first requisite of a judgment was wanting. A judgment is defined to be “• a conclusion of law upon facts found or admitted by the parties, or upon a default in the course of a suit; a decision or sentence of the law given by a court of justice or other competent tribunal, as the result of proceedings instituted therein for the redress of an injury.” In this case the absence of process to bring the defendant before the court, and of any order or decree which can be deemed an adjudication, and the absence of any proof of the law or of the practice of the state of Pennsylvania that provided that such a record was in effect an adjudication, the evidence was insufficient to establish that the plaintiff had recovered a judgment against the defendant, and plaintiff having failed to prove the cause of action set forth in his complaint, the complaint should have been dismissed.

      Before Freedman and Ingraham, JJ.

      Decided February 4, 1889.
    Appeal from a judgment, entered upon the verdict of a jury by direction of the court.
    This action was brought upon a judgment alleged to have been recovered by the plaintiff against the defendant in the Court of Common Pleas of Northampton county, Pennsylvania. The judgment roll offered in evidence by the plaintiff on the trial is printed in full in the case. It was objected to by defendant as without jurisdiction, but the court admitted it in evidence, and directed a verdict for the plaintiff to which direction defendant excepted.

      Lemuel Skidmore, attorney and of counsel for appellant, argued:—
    The alleged judgment roll offered in evidence lacks many essential characteristics of a judgment. It shows that no process was issued, no pleadings had, no appearance ever made by the defendant or by any one. It simply recites that a bill of which a copy is given was produced, and concludes with the words “wherefore judgment,” not stating for what sum, and no proofs having been taken of the authenticity of the bill produced or the. amount due thereon. Such a proceeding would not constitute a judgment at common law nor according to tfie law of this state, and there was no evidence given to show that it is a valid judgment under the laws of the state of Pennsylvania. Crofts v. Clark, 31 Iowa, 77. The very idea of a judgment is a judicial decision upon the rights of parties after hearing the evidence on both sides, or giving both sides an opportunity to be heard.
    The alleged record here shows that the defendant was not in any way summoned or notified, and there is no waiver by him of such notification.

      It is not within the clause of the constitution of the United States, requiring full faith and credit to be given in each state to the judicial proceedings of another state because it is not in any sense a judicial proceeding. There is no reported case in this state of an action brought upon a record similar to the one offered in this action. In the following cases—Shumway v. Stillman, 6 Wend. 447 ; Huntley v. Baker, 33 Hun, 578; Ferguson v. Crawford, 86 N. Y. 609, and 70 Ib. 253 ; Pringle v. Woolworth, 90 Ib. 502—the records showed that process was issued and served upon the defendant, either personally or in some mode which our court adjudged to be binding upon him.

      Samuel B. Rogers, attorney and of counsel for respondent, argued:—
    I. The defendant is precluded on this appeal from claiming that the existence of the Pennsylvania judgment was not sufficiently proved. A reference to the case will show that none of the objections or exceptions, upon the trial, were placed upon this ground. The main contention throughout seems to have been either that the judgment was defective for not showing that jurisdiction over defendant’s person was acquired; or, possibly, that it was part of plaintiff’s case to show this by proof aliunde. The cases are numerous that on appeal an exception must be confined to the grounds specified below. Non constat, but plaintiff might have given proof of the laws of Pennsylvania, shovnng the sufficiency of the record, had this point been raised below. Thayer v. Marsh, 75 N. Y. 340, 342, 343; Jencks v. Smith, 1 Ib. 90, 93; Chace v. Higgins, 1 Sup. (T. & C.) 229, 230; Etheridge v. Ladd, 44 Barb. 69, 74 ; Binsse v. Wood, 37 N. Y. 526, 532 ; Webb v. Odell, 49 Ib. 583, 584; Duryee v. Lester, 75 Ib. 442, 444; Union Mfg. Co. v. Byington, 1 Hun, 44.
    II. The record of the Pennsylvania court was sufficient proof of a judgment within the meaning of the Federal Constitution and Laws. First.—The rendering of a judgment is a judicial act. The entry is a ministerial one. The judgment exists as such without the latter. That is only necessary for purposes of evidence —to prove its existence. Hence, anything that shows sufficiently its existence is enough. Freeman on Judgments, § 38 : “The rendition of a judgment is a judicial act; its entry upon the record is merely ministerial. A judgment is not what is entered, but what is ordered and considered. The entry may express more or less than was directed by the court, or it may be neglected altogether; yet in neither of these cases is the judgment of the court any less its judgment than though it was accurately entered. In the very nature of things the act must be perfect before its history can be so; and the imperfections or neglect of its history fails to modify or obliterate the act.....In the case of judgments, they must first be entered upon the record before they are admissible as evidence in other courts. For this purpose they are not otherwise perfect. Fish v. Emerson, 44 N. Y. 376, was a motion to set aside the docket of a judgment which was entered by the justice upon the back of his minutes.as follows: “Fish v. Emerson. Testimony submitted June 30, 1863. Judgment for plaintiff; damages, $124.20, $3.92—$128.12.” Held, a judgment.” Leonard, C.: “ The act of rendering judgment by the justice is judicial; that of entering it in his docket is ministerial.” Gray, C.: “ This omission of duty on his part did not invalidate the judgment.” Churchy. Crossman, 41 Iowa, 373: “It is settled by the decisions of this court that no particular form of words is necessary to show the rendition of a judgment.” Second.—What are the essentials of the written record or proof of a judgment ? We have seen, supra, that the record of a judgment is none the less good though it be silent as to all the facts constituting jurisdiction. The only requisites left are, that it should state the names of the court, the parties, and the relief granted. All this and more exist in the judgment sued on here. The concluding sentence, “ Wherefore, judgment,” obviously is equivalent to some such phrase as “ and it is adjudged accordingly.”
    The amount of the note being recited, and the note itself being part of the judgment roll, it is in every way as definite as “judgment for plaintiff $-,” which was held good in Fish v. Emerson, 44 N. Y. supra. “ A judgment is the final determination of the rights of the parties in the action ” is the definition of the former Code (Code Proc., § 245). The present Code has not altered this. It is as follows: “ A judgment is either interlocutory or the final determination of the rights of the parties in the action ” (Code Civil Proc., § 1200). 3 Black. Com. 395 : “Judgments are the sentence of the law, pronounced by the court upon the matter contained in the record.” Freeman on Judgments, § 47 : “ Whatever may have been requisite formerly, it is evident that the sufficiency of the writing claimed to be a judgment must, at least under the Code, be tested by its substance rather than by its form. If it corresponds with the definitions of a judgment as established by the Code; if it appears to have been intended by some competent tribunal as the determination of the rights of the parties to an action, and shows in intelligible language the relief granted, its claim to confidence will not be lessened, by a want of technical form, nor by the absence of language commonly deemed especially appropriate- to for j udicial records.” Freeman on Judgments, § 50: “ Whatever appears on its face to be intended as the entry of a judgment will be regarded as sufficiently formal if it show: 1st. The relief granted; and, 2d, that the grant was made by the court in whose records the entry is written.” In Church v. Crossman, 41 Iowa 3 ”73, the action was upon a New York justice’s judgment. The evidence of it was a certified copy of the docket, which, after reciting the title and the date, continued: “ Judgment rendered in favor of plaintiff against defendant in the above cause, on contract, on process personally served.
    “Debt.......$200 00
    Costs........2 40
    Judgment......$202'40”
    This was held to be a good judgment, the court remarking : “ It is settled by the decisions of this court that no particular form of words is necessary to show the rendition of a judgment.” Regina v. Yeoveley, 8 Ad. & E. 806, 818, per Lord Dermar, C. J.: “ The book contains a caption and the decision of the sessions, and their decision is the only fact to be proved.” These words were quoted and approved by Curtis, J., in Phila. & U. R. R. Co. v. Howard, 13 How. U. 8. 307, 331. Leathers v. Cooley, 49 Me. 337, 342: “ The entries upon the docket sufficiently show that judgment had been entered up before this suit was brought.” See also Fish v. Emerson, supra, where an entry in a justice’s court, after the title and date of “judgment for plaintiff, damages, $124.20,” etc., was held to be a judgment. Cromwell v. Bank of Pittsburgh, 2 Wall., Jr., 569, 581 ff, per Grier, J.: “ It would lead to absurd and mischievous conclusions if we should attempt to test the validity of the records of the courts of Pennsylvania by a comparison-with those of the Kings Bench and Common Pleas in England, or those perhaps of several of our own states. . . . These minutes, whether made by the judges, the clerk, or an attorney, are always brief and informal; usually the word c judgment ’ connected with the date and amount, or judgment for sum due ..... and I have known one prothonotary (a very worthy man, but somewhat eccentric in his orthography) who Avould have made the following minute only : £ Oept. 13 gugt- [this stands for £ Sept. 13 Judgt.’]. Yet, with this paper on file to show the amount and terms of the judgment, and with the help of which a formal judgment might have been drawn up, no lawyer, acquainted with the practice and records of Pennsylvania, would venture the assertion that there was no judgment.” Washington, &c. Steam Packet Co. v. Sickles, 24 How. 333, 340, per Campbell, J., aThe defendants objected to these docket entries as evidence of a verdict and judgment; but insisted they wrere simply memoranda or minutes, from which a record of a verdict and judgment were to be made. It appears that in the courts of this district, as in Maryland, the docket stands in the place of, or, perhaps, is the record, and receives here all the consideration that is yielded to the formal record in other states. These memorials of their proceedings must be intelligible to the court that preserves them, as their only evidence, and we cannot, therefore, refuse to them faith and credit.”
   By the Court. — Ingraham, J.

The complaint alleges that on or about the 12th of January, 1878, the defendant made his certain promissory note in writing at South Bethlehem, in the commonwealth of Pennsylvania, as follow's:

“ $2,268íú°o South Bethlehem, January 12, 1878.

“ One year after date, I promise to pay Lewis M. Teel twenty-two hundred and sixty-eight dollars, without defalcation for value received. And I do hereby authorize any attorney of any court of record in Pennsylvania, or elsewhere, to confess judgment therefor and release of errors; and I hereby also waive all stay of execution from and after the maturity of the above note. Witness my hand and seal, the day and date above written. With ten per cent allowed for collection fees with interest from date. Abraham Tost (Seal).

“ Witness present: Geo. Ziegenfuss.”

The complaint then alleges that thereafter on January 14, 1878, in accordance with the law of Pennsylvania, plaintiff duly entered judgment against the defendant in the Court of Common Pleas of Northampton county, in said commonwealth of Pennsylvania, the same being a court of record and of competent jurisdiction, upon said note according to the tenor thereof, said note being then filed among the records of said court according to the laws of said state. That the plaintiff is the owner of said judgment and of all sums due and owing thereunder and that neither the said judgment nor said note has been paid.

I think it clear that one cause of action is set up in the complaint and that is, a cause of action upon the judgment, and to entitle plaintiff to recover he must prove a valid judgment against the defendant.

In Krower v. Reynolds, 99 N. Y. 248, the complaint alleged the making of a bond and mortgage which the defendant had covenanted to pay; that subsequently an action was commenced to foreclose the mortgage, to which action the defendant was made a party. A judgment was duly recovered against him upon his covenant for a sum of money named and no part of which was paid, and it was field, that that complaint stated but a single cause of action, and that was a cause of action on the judgment. That upon the facts alleged in the complaint, the covenant was merged in the judgment and that no subsequent action upon the covenant could be maintained.

On the allegation of the complaint in the case at bar, the note was merged in the judgment, and on the complaint as it stood no cause of action could be maintained upon the note.

On the facts alleged, therefore, the only cause of action that existed in favor of the plaintiff against the defendant, was the cause of action on the judgment, and this was apparently the opinion of the trial judge, because when the record from the Court of Common Pleas of Pennsylvania was offered in evidence, an objection was interposed on the ground, that the action was on the note and not on the judgment, and that objection was overruled.

The plaintiff to prove his cause of action offered in evidence an exemplified copy of a portion of the record of the Court of Common Pleas of Northampton Co., commonwealth of Pennsylvania. It is there stated that among the records of that court (it is thus contained), “Continuance Docket, Entry of December term, 1877, Lewis M. Teel vs. Abraham Yost. D. S. B. $2,268^ And now, January 14, 1878, a single bill under the hand and seal of the defendant, dated January 12, 1878, wherein he promises to pay to the plaintiff, or order, one year after date twenty-two hundred and sixty-eight dollars, containing a clause authorizing the entry of judgment, waiving stay of execution, with ten per cent for collection fees, is produced hereto to have judgment entered thereon ; wherefore judgment.” With the exception of some assignments this is the whole transcript of the record.

It will be noticed that the note is payable one year from January 12, 1878, and this proceeding is of the date of January 14, 1878.

There is no record of any process or plea, no record of any service or appearance by the defendant, and at the time of this entry nothing was due on the note. There is no adjudication of the court that defendant should pay anything, or that the plaintiff should recover anything, or that plaintiff should have execution or process of any kind to collect anything. There is no evidence of any law of Pennsylvania that would authorize a judgment to be entered on a note that had yet a year to run, or that would in any way explain the meaning .of this record.

It seems to me that this record was not evidence of any judgment in favor of the plaintiff -and against the defendant for any sum of money, and would not justify a presumption that any question was adjudicated between the parties. The first requisite of a judgment was wanting. A judgment is defined to bé “a conclusion of law upon facts found or admitted by the parties or upon a default in the course of a suit; a decision or sentence of the law given by a court of justice or other competent tribunal as the result of proceedings instituted therein for the redress of an injury.” Bouvier’s Law Dictionary.

In the absence of the process to bring the defendant before the court, and of an order or decree which is an adjudication, and with no proof of the law or practice of Pennsylvania which provided that such a record was in effect an adjudication, the evidence was insufficient to prove that the plaintiff had recovered a judgment against the defendant.

I think, therefore, that plaintiff failed to prove the cause of action set forth in the complaint, and that the complaint should have been dismissed. The judgment should, therefore, be reversed, and a new trial ordered with costs to the appellant to abide the event.

Freedman, J., concurred.


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

text:
    THOMAS C. AVERY, Respondent v. WILLIAM H. STARBUCK, Appellant.

      Supplemental answer, not allowed to set up an unsubstantial defence, nor to set up a record which, without being set up by answer, can be read in evidence with like effect as if set up.

    Where it appears by the moving papers that the matters sought to be set up in the supplemental answer as a plea in bar to an action on a quantum •meruit, for work done and materials furnished on a vessel, is a judgment of the United States District Court against the plaintiff, rendered after a trial of the issues joined by a libel filed by him against the vessel to enforce a claimed lien thereon for such work and materials, and the answer thereto filed by the owner of the vessel (being also the defendant) who asks leave to serve a supplemental answer dismissing the libel on the ground that no maritime lien existed, the motion for leave to serve a supplemental answer should be denied.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 5, 1889.
    Appeal from order denying defendant’s motion for leave to file a supplemental answer.
    The facts sufficiently appear in the opinion.

      Holmes & Adams, attorneys, and George H. Adams of counsel for appellant, argued:—
    I. The facts averred in the proposed supplemental answer must be pleaded, and cannot be proven under the general issue. Hendricks v. Decker, 35 Barb. 299.
    II. The code expressly provides that by supplemental answer may be set up :— “ the judgment or decree of" a competent court rendered after the commencement of the action determining the matters in controversy, or a part thereof.” Code of Civil Procedure, § 544.
    III. The court will not deny a motion to file a supplemental answer, upon the ground that the facts sought to be set forth therein do not constitute a defence to the action unless they are clearly frivolous. Mitchell v. Allen, 25 Hun 543.
    IV. The rule of decision, and the discretion to be applied upon such a motion are definitely settled in Holyoke v. Adams, 59 N. Y. 234. And the court distinguish Medbury v. Swan, 46 N. Y. 200.

      James C. Anderson, attorney, and Joseph F. Mosher of counsel for respondent, argued :—
    I. Leave to serve a supplemental answer is only to be granted in a “proper case.” Code, § 544; Fleischman v. Bennett, 79 N. Y. 579. It will not be granted if it is clear that the new matter sought to be alleged does not constitute a defence, Jagger v. Littlefield, 3 Week. Big. 316 ; Ratzer v. Ratzer, 2 Abb. JJ. C. 461.

      II. In the present case the defendant asked leave to allege by supplemental answer the decree of a court of admiralty which did not determine the matter in controversy in this action, or any part thereof, but merely determined that the plaintiff here had no lien upon the yacht for the work done and materials furnished. The admiralty decree expressly declares that the libel is dismissed on the ground of no lien. The opinion also shows that such was the only ground of decision; and it may be examined for that purpose. Birckhead v. Brown, 5 Sand. 134. No personal decree against the owner could be entered in the admiralty suit in rem, if no lien existed. The Monte A., 12 Fed,. Rep. 331.
    III. The suit in admiralty was analogous to a proceeding to enforce a mechanics’ lien, in which, prior to the act of 1885, no personal judgment could be obtained unless a lien was established. Meyer v. Beach, 79 N. Y. 409. But it would never be pretended that a mechanic who failed to establish a lien, would, by an adverse judgment on that ground in a foreclosure proceeding, be estopped to recover his .debt in another action in personam upon his contract. Randolph v. Leary, 4 Abb. 205, 206 ; Grant v. Vandercook, 57 Barb. 165.
   By the Court.—Sedgwick, Ch., J.

The action was for work and materials furnished to defendant for a certain yacht. The defendant answered. Afterwards he made the motion below which was to allow him to serve a supplemental answer alleging that, since the former answer, judgment had been entered in favor of defendant, in a suit in the U. S. District Court, in which the plaintiff was the present plaintiff, and alleging that the suit in the District Court was brought upon the same grounds and for the same relief as claimed in this action.

On the motion it indubitably appeared that the suit in the District Court, was terminated in favor of this defendant without any adjudication of whether or not the plaintiff had a claim for work and materials, and that the proceeding being in rein, the actual adjudication was, that if the plaintiff had a personal claim he had no lien upon the vessel, and this led to a dismissal of the libel.

I am of opinion, that it so certainly appeared, that the answer proposed could not sustain the defence by way of bar upon the fact, that the judge was right in not allowing an unsubstantial defence, but I also take into consideration that the defendant will have a right upon the trial to present the same record, as evidence of the facts in issue, and with conclusive effect, if the appellant should be right in his present assertion as to the effect of the record in the District Court. Marston v. Swett, 66 N. Y. 206; Krekeler v. Ritter, 62 Ib. 372.

The order should be affirmed with $10 costs.

Truax and Dugro, JJ., concurred.


author: By the Court.—Sedgwick Ch. J.

text:
    FRIEDRICH FRICKE, Respondent v. THE GERMAN SAVINGS BANK, Appellant.

      Savings bank—negligence in paying forged cheek, evidence as to. Signature clerk, negligence may be shown by his direct and cross-examination, ■ and, a comparison of signatures.

    The solution of the question as to whether due care has been taken by the officers and employees of a-savings bank to detect a forgery of the name of its depositor to a check, depends on the degree of significance that would be attributed to the difference between the signature in the signature book and that to the forged check, not by the common person but by the skilled person. ....
    Signature clerk, negligence may be shown by his direct and cross-examination, with a comparison of signatures.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 5, 1889.

      Appeal by defendant from judgment entered upon, verdict of jury.
    The facts sufficiently appear in the opinion.

      S. Kaufmann, attorney, and Lewis Sanders of counsel for appellant, on the questions considered in the opinion, argued:—
    I. A consideration of the other cases against savings banks will lead to the conclusion exonerating the defendant under its contract. People v. 3d Avenue Savings Bank, 98 N. Y. 661-3 ; Appleby v. Erie Co. Savings Bank, 62 Ib. 18; Allen v. Williamsburgh S. Bank, 69 Ib. 314.
    II. For the first time, in cases of this character against savings banks, the appeal book presents to the appellate court a means of making the same opportunity for the comparison of signatures as that presented to the trial judge for his determination as to whether any negligence was thereby disclosed. The photographs are facsimiles of the original exhibits. Here counsel made a comparison of signatures. The question before this court on the exception to direct a verdict for the defendant is, are the signatures of plaintiff in Exhibit I and in the signature book so dissimilar as, when compared, the discrepancy would be easily and readily discovered by a person competent for the position. “It would not be evidence of negligence if the difference was not marked and apparent, or if it would require a critical examination to detect it, and especially if the discrepancy was one as to which competent persons might honestly differ in opinion.” Appleby v. Erie Co. S. B., supra.

    III. To hold the defendant liable under the circumstances of this case, the competency of the signature clerk being conceded, would be to expunge from the contract with the plaintiff defendant’s non-liability for fraud perpetrated upon it by use of the pass book, leaving it liable as a bank of deposit on a forged check.
    IV. Defendant having appealed from the order denying the motion for a new trial, the.facts are before this court for review. A comparison of the signatures before suggested makes it apparent that the verdict is against the clear weight of evidence. The jury must have treated the case as one against a bank of deposit on a forged check.

      Isaac Rothschild, attorney, and of counsel for respondent, on the questions considered in the opinion, argued :—
    I. The jury were the sole judges of the facts in the case, and their verdict thereon is conclusive. The question whether the bank, under the circumstances as proven upon the trial, exercised reasonable care and diligence in the payment of plaintiff’s money to a stranger, whether man, woman or boy, although a question upon which the trial justice might be justified in finding against the defendant as a matter of law, was nevertheless submitted to the jury to defendant’s greater advantage, this being a question in the category of questions of fact to be submitted to a jury, and being such a question and properly within the peculiar province of the jury to determine, it should be conclusive and is not the subject for review here. Sheehy v. Burger, 62 N. Y. 558 ; Cook v. N. Y. C. R. R. Co., 3 Keyes 576 ; Stackus v. N. Y. C. R. R. Co., 79 N. Y. 466.
    II. The motion for a new trial on the minutes and exceptions, and for the reason that the verdict was contrary to the weight of evidence, was properly denied. Barrett v. The Third Avenue R. R. Co., 45 New York Rep. 628-632 ; Kelly v. Frazier, 2 Civil Rro. Rep. 325; Gescheid v. Quirk, 5 Ib. 38; Samuels v. Weaver, 14 Weekly Dig. 272; Dunning v. Bowe, 16 Ib. 119.
   By the Court.—Sedgwick Ch. J.

The plaintiff had been a depositor with defendant. A thief stole the plaintiff’s pass book and presented it and a check with the forged signature of plaintiff upon it for the sum of $175, to the bank. The bank paid the money upon the check, and the action was to recover this amount. The defendant did not dispute the existence of these facts.

When the plaintiff opened his account with the bank, he wrote his name upon the signature book of the bank. A clerk of the bank testified that he 'paid the money, after comparing the signature upon the book with the signature upon the check.

The court instructed the jury, that the plaintiff, to recover, should show to their satisfaction that the servant of the bank had been negligent in making the comparison between the signatures; that if there were dissimilarities, the jury should say whether they were such as would lead a person of reasonable prudence, to refuse to act upon the check as genuine, and whether the bank’s servant could by ordinary observation have appreciated the differences. There was no objection to ‘the charge of the court. But the learned counsel on the trial, and by a motion for a new trial, took the position that the preponderance of testimony was, that there was no negligence on the part of the bank.

The exhibits marked in the case consisted of the genuine signature on the book, and the forged check. Photographs of these are in the appeal book. Other exhibits are photographic copies of genuine signatures of plaintiff.

The learned counsel for defendant' maintains, that the preponderance of evidence in favor of defendant appears in the signatures in the book and on the check; that in this case defendant’s negligence of omission to use reasonable care in perceiving dissimilarities between the signatures (Appleby v. Erie Co. Savings Bank, 62 N. Y. 18) was not shown, because the signatures themselves incontrovertibly show that there were no dissimilarities of a kind' that would lead a person, competent for the position of bank-clerk, and using his judgment with a care proportioned to the circumstances, to believe that the signature of the check was not genuine. It is affirmed that, at least, the dissimilarities were not marked and apparent; that it would call for a critical examination to detect them, and as to what was indicated by them there might be an honest difference of opinion between persons competent to judge in such matters.

My own opinion is, that there were dissimilarities which can be pointed out by a common and unskilled person, and that it does not incontrovertibly appear that a skilled clerk would not perceive in them sufficient ground for the belief that the signatures were not made by the same person. It does not, with certainty, appear that the differences were such as would occur in signatures written by one person. The question would be as to the degree of significance that would be attributed to the differences, not by the common person but by the skilled person. The solution of this depends upon the fact of what an expert would be able tp perceive, and upon the testimony as to that in the course of the trial. Such testimony was not given by an expert called for that particular purpose. The clerk, however, was an expert, and from his examination and cross-examination a jury could judge, not only of what wras the effect on his mind caused by his comparing the signatures, but of what would have been the effect if he had given due attention to what the dissimilarities indicated. In my opinion, this was a question for the jury.

If my associate agrees with me, the judgment and order should be affirmed with costs.

Truax, J., concurred.