author:
Spier, J.
      By the Court. — Curtis, J. Freedman, J. (concurring).

text:
    GEORGE N. WESTON and others, Plaintiffs and Respondents, v. FREDERICK O. KETCHAM AND OTHERS, DEFENDANTS AND APPELLANTS.
    “PEPPER’S SIGNAL OIL."
    I. TRUSTEE. IMPLIED TRUST.
    1. Partners. When one partner, during the partnership, negotiates respecting, and obtains the exclusive use of a right in which the firm was interested, he will be declared to hold such use in trust for the firm.

      a. Trade-mark. Principle applied to it.
    1. When a firm under a contract with the owner has the right to the exclusive use of a trade-mark, and during the partnership one of the firm enters into an agreement with the owner, whereby the previous contract is cancelled and a new one made, giving to such member the exclusive use of the trade-mark for a certain number of years, on certain conditions, and at the end of that term the conditions having been performed, the 'sole and exclusive right an'd title to the trade-mark,

      mu,

    that such partner took and held the contract, and all the rights and interests given thereby, as trustee for the firm.

    II. RATIFICATION BY ACQUIESCENCE.
    1. Forced acquiescence will not operate as.
    1. In the trade-mark case above put the other partners after knowledge of the contract made by their copartner, expressed their disapprobation, but did not immediately resort to their legal remedy, and notwithstanding the act of their copartner still continued the firm, and in its business used the trade-mark, and manufactured under it as before, and paid to the owners out of the firm’s funds the sums stipulated to be paid, yet it appearing that the copartner who procured the contract for his own benefit alone knew the secret of the manufacture,
    Held,

      A forced acquiescence, which would not sustain a finding of ratification.

      1. If they had moved in the matter adversely, they would in asserting their remedy, not have possessed the knowledge by the use of which the capital employed in the manufacture (all of which was contributed by them), might be made remunerative.

    HI. TRADE-MARK.
    1. Restraining use of, what not cause fob.
    1. Although defendant does not know the secret of the manufacture, and is selling under the trade-mark an article different from that represented by it, yet (whatever may be the effect of these elements in other cases) no cause of action arises therefrom against him in favor of one who has no mot'e right to the trade-ma/rk than he has.

    IV. TRIAL BY COURT.
    1. Mode of reviewing decision.
    1. Only by appeal from the judgment entered on such decision, or under section 368 by motion at general term for a new trial.
    1. Therefore a motion on a case, or exceptions, for a new trial, will not be entertained at special term.

    Per Freedman, J., concurred in by Curtis, J.
    Before Freedman and Curtis, JJ.

      Decided February 1, 1875.
    Appeal by defendants from a judgment, and from an order at special term, denying a motion for a new trial.
    The action was commenced in March, 1874, for a perpetual injunction to restrain the defendants from using a trade-mark, to wit, “Captain S. Pepper’s Extra Signal Oil,” and for damages for their alleged previous wrongful use of the same.
    The findings of the judge were as follows :
    1. That Simeon Pepper in his life time with the aid of his wife Abbie A. Pepper, and of George N. Weston, one of the plaintiffs, experimented for the purpose, and succeeded, in compounding and manufacturing an illuminating oil, valuable as an article of merchandise, -and in the course of his business as a manufacturer of and dealer in that and other oils at the city of New York, sold the same under the name and designation of “Pepper’s Signal Oil,” “Captain Pepper’s Extra Signal Oil,” and “Captain S. Pepper’s Extra Signal Oil,” from the time he produced the same, to the beginning of the year 1870.
    II. That about the last mentioned time, said Pepper formed a business connection with the defendant Ketcham, whereby he, Pepper, was to manufacture the said oil, and the said Ketcham was to sell the same, and the profits were to be divided equally between them, and that agreement was in force and operation, the oil being so manufactured by Pepper and sold by Ketcham as “Pepper’s Extra Signal Oil,” until the death of Pepper, in September, 1870, up to which time the plaintiff Weston remained in Pepper’s employ, and was engaged with him in manufacturing said oil.
    III. That on or about September 1, 1870, the plaintiff' Weston and the defendant Ketcham, entered into a written agreement for a co-partnership between them, under the firm name of P. O. Ketcham and Company, to deal in oils, at the city of New York, in which agreement it was provided that Ketcham should furnish the capital, and Weston should devote his time, knowledge and skill, to the manufacture of “Pepper’s Signal Oil,” and other oils, the terms of which co-partnership, were equal as to division of profits and liability for losses, and at the same time they, as such co-partners, entered into an agreement with Abbie A.. Pepper, afore-mentioned, the widow of Captain S. Pepper, by which they agreed to pay to her one-tenth part of the net profits of their whole business, in consideration that she should and would give to them as Jong as said agreement lasted, the exclusive use of all her right, title, and interest, in and to the use of then-rrm o-' her husband as a trade-mark upon the said. signal oil, so to be manufactured by Weston in their said business, and not to impart to any one the secret of said manufacture.
    And the said co-partnership thus formed, and tne continuation thereof hereinafter mentioned, then used the following device as a trade-mark, under which they vended the said oil so manufactured, except that the word “Sole” was invariably printed before the word “manufacturers,” to wit:

    IV. That on or about July 1, 1871, the plaintiff Piske became a member of the said co-partnership firm of F. O. Ketcham & Co., being admitted thereto upon equal terms, as to profits and losses, with the other two co-partners, but the said agreement with the said Abbie A. Pepper, was not then changed, nor were the duties of said Weston in respect to his manufacture of said signal oil.
    V. That on or about January 1, 1872, the said agieement between the co-partnership firm of F. O. Ketcham & Company, and said Abbie A. Pepper, afore-mentioned was cancelled, and a new agreement in writing was entered into by and between her and the plaintiff Weston, as parties thereto, in and by which, for the consideration of one hundred and fifty dollars, to be paid in equal monthly instalments during a period of five years thence next ensuing, she, the said Abbie A. Pepper, agreed to allow to said Weston, or to any firm of which he then was or might become a member, the exclusive use of the name of Captain Simeon Pepper, in the manufacture of signal oil, as a trademark, and that at the end of said five years, provided said Weston should faithfully keep said agreement, she, said Abbie A. Pepper, would render and yield up to him the said trade-mark for his own use, benefit, and behoof forever.
    VI. That, said agreement directly upon its execution came to the knowledge of the said Fiske, and said Ketcham, and they each severally ratified the same, and thenceforth all the time of the subsequent continuance of the said co-partnership .of F. O. Ketcham & Company, composed of said Frederick O. Ketcham, George N". Weston, and Thomas P. Fiske, as co-partners, they paid the said monthly instalments, and had and used in their business said trade-mark, as hereinbefore set forth. ,
    VII. That said co-partnership, last aforesaid, continued to February 20, 1874, when by written articles of agreement the same was dissolved, the said Weston & Fiske, parties on the one part, and the said Ketcham party on the other, specially retaining and reserving any right or rights either party had in or to said trademark and its use.
    VIII. That on or about the said February 20, 1874, the plaintiffs entered into a co-partnership under the firm name of Weston & Fiske, as manufacturers and dealers in oils, at the city of New York, and specially as manufacturers and vendors of said signal oil, and have manufactured and sold the same and thence, hitherto, used the said device or trade-mark as follows, to wit:

    IX. That, on or about the same day, the defendants entered into a co-partnership under the firm name and style of F. O. Ketcham & Company, as dealers in oil, and thereupon gave oat to the public and represented themselves as dealers in Capt. S. Pepper’s “Extra Signal Oil,” and held themselves forth as manufacturers and vendors of said oil.
    X. That at and after the time of the death of said Captain Simeon Pepper, no person had any knowledge of the ingredients composing said signal oil, or the mode of compounding them, or the means by which the complete article was produced, except the said Oeorge Ñ. Weston and the said Abbie A. Pepper, and they had not, nor had either of them, imparted said knowledge at any time previous to the commencement of this action.
    XI. That said defendants have not, nor did they or either of them ever have knowledge of the several ingredients, proportions, and processes necessary to be known to manufacture the genuine article, heretofore and now known as “Capt. S. Pepper’s Extra Signal Oil.”
    XII. That since the said February 20, 1874, to the time of the trial, the defendants have been manafacturing and vending an oil which they have falsely called, by the name “ Capt. S. Pepper’s Extra Signal Oil,” and have falsely represented such oil, to dealers therein and buyers thereof and the public, as the genuine manufacture heretofore known by and sold under the said name and device or trade-mark, and that they have sold the same under and with the label in manner following to wit:

    XIII. That such wrongful actings and doings on the part of the defendants caused loss and damage to the plaintiffs.
    And I do find as my conclusions of law.:
    I. That the defendant Ketcham, has not and never has had any exclusive right to the use of said trademark, and that the defendants have no right or title in or to the said trade-mark, or device, or to the use thereof or to the name of said Simeon Pepper, or to any part thereof.
    II. That the plaintiffs are entitled to the exclusive use of the device and trade-mark as now and heretofore used by them in and about their business of manufacturing and selling the oil, commonly heretofore and now known and called “Capt. S. Pepper’s Extra Signal Oil,” or “ Pepper’s Signal Oil,” and the exclusive use of the name “Captain S. Pepper,” on any manufacture of oil, and to all parts of said name.
    III. That the plaintiffs are entitled to judgment enjoining and restraining the defendants and each of them as prayed for in the complaint, and in accordance with these findings and conclusions.
    IY. That the defendants shall upon oath, deliver up, under the direction of a referee, to be appointed by the court, all labels, devices and marks and materials, for making or printing such labels and devices, now in the possession or under the control of the' •defendants, bearing the name of Capt. S. Pepper, or any part of said name, as designating any manufacture or pretended manufacture of oil or other illuminating substance.
    y. That the plaintiffs by reason of the wrongful acts of the defendants have sustained damages which should be ascertained by a referee to be appointed by the court, to the end that upon the coming in of his report, final judgment shall be entered in this action for the relief hereby adjudged to the plaintiffs, as well .as for such damages, if any, reported by said referee, together with the costs of this action, and costs of any reference pursuant to these findings and conclusions.
    yi. That the plaintiffs are entitled to, and I do order judgment accordingly, dated June 16, 1874.
   The following opinion was delivered at special term:

Spier, J.

The action is brought against the defendants for violating the plaintiffs’ trade-mark, consisting of a circular label or stamp, marked and letters “Captain S. Pepper’s Extra Signal Oil.” An arrangement had been made by which the parties, plaintiffs and defendants, had jointly as copartners, manufactured this oil and the factory was known, and published, “F. O. Ketcham & Co., Manufacturers.” The' defendants claimed not only to have knowledge of the secret process of making the oil, but also that they, in their arrangement with the plaintiffs and the original inventors for carrying on the business, had made a contract by which they had the right to use the trademark, and were in fact owners of it and the secret.

After the dissolution the defendants continued to make what they called “Captain Pepper’s Extra Signal Oil,” and to use the trade-mark.

The plaintiffs brought their suit to restrain defendants, by injunction, claiming that they were the proprietors of the trade-mark, and were alone possessed of the secret process of manufacturing the oil, and alleging that the defendants were making a spurious article and selling it in the market for the genuine oil.

The co-partnership arrangement made by the parties, was for the purpose of carrying on the business of making and selling this oil.

•The compounding the ingredients was by arrangement exclusively intrusted to the plaintiffs as their special business in the copartnership, while the selling of the oil, and other labor necessary to create a market, and the taking all necessary steps in preparing it as merchandise merely, was the defendants’ department.

I have no difficulty in finding that the issues in the pleadings have been clearly made out by the evidence in favor of the plaintiffs, and that they are entitled to the judgment asked for in the complaint.

Frank Warner Angel, attorney, and of counsel for appellants, among other things urged;—I. Weston took the trade-mark as trustee of the firm (Mitchell v. Read, 61 Barb. 310; Colly, on Part. § 179; Smith Merc. L. 54; Featherstonhaugh v. Fenwich, 17 Vt. 298; Pawcett v. Whitehouse, 1 Russ. & Myl. 132; Russel v. Austwich, 1 Linn. 52; Colly, on Part. § 182; 1 Sto. Eq. Jur. §§ 468, 623; Kelly v. Greenleaf, 3 Story, 93; Keech v. Sanford, 1 Lead. Cas. Eq. 92).

II. The doctrine of Vigilantibus et non dormientibus equitas subnenit, does not apply. It only applies where a party being apprised of the act about to be done, slumbers on his rights; for the betrayal of confidence reposed, the skillful lulling to rest of the intended victim, the adroit closing of every avenue through which apprehension might enter, whether this be done by words or by “expressive silence” are the eararks of successful fraud the world over; and a court of equity, should it make such a perverse application of one of its fundamental maxims, would become the efficient ally of the vigilant wrongdoer, prove recreant to its past history and the principles on which its very jurisdiction rests.

III. Having shown that this agreement with Mrs. Pepper was taken by Weston, as trustee of the firm, the next question is, what becomes of the trademark on the dissolution of the firm? On dissolution of a partnership, each of the partners has the right, in the absence of a stipulation to the contrary, to use the trademark (Banks v. Gibson, 34 Beav. 566; Smith v. Everett, 29 Id. 446; Johnson v. Hillsley, 2 D. J. & S. 446; Comstock v. Moore, 18 How. Pr. 421).

A. J. Perry, attorney and of counsel for respondent, urged ;—I. The exclusive right to the use of the trade-mark described in the complaint is shown by the evidence of the plaintiffs. Vide opinion of the court; finding of fact; conclusions of law.

II. Ketcham recognized and acquiesced in the knowledge of the secret and proprietary interest of Weston and Mrs. Pepper to the trade- mark.

By the Court. — Curtis, J.

To sustain this action, the plaintiff must establish an exclusive right to use the alleged trademark in question. The plaintiffs claim that through one of them, George N. Weston, they possess such exclusive right.

The plaintiff Weston, testified at the trial, that about September 1, 1870, he made ail arrangement with Mrs. Pepper that she was to have ten per cent, of the gross profits of the manufacture of this oil, by the firm, consisting of the defendant, Ketcham., and himself, for the use of her husband’s name; that he was to make it, and the firm have the benefit of it. Subsequently about January 1, 1872, and after the plaintiff Piske became a mem ber of the firm, and the firm having paid the ten per cent, to Mrs. Pepper, a new agreement was made between the plaintiff Weston and Mrs. Pepper, by which Mrs. Pepper allowed the plaintiff Weston, or any firm of which he may be, or become a member, as he may desire, the exclusive use of the trade-mark, on paying to her for five years one hundred and fifty dollars per annum, and on punctual payment at the end of five years, she covenanted to render and yield up the trade-mark for his own use forever.

The evidence of the plaintiff Piske in respect to this new agreement, was as follows:

Q. What conversation was had between yourself, Ketcham and Weston, in regard to the agreement which should be made for the firm’s benefit, with Mrs. Pepper %
“A. We were anxious to have an agreement made, and wanted the best one possible.
“ Q. What instructions, if any, did you give to Mr. Weston before he went to Mrs. Pepper for this purpose ?
“A. To make the best arrangement possible.
‘ ‘ Q. For the firm’s benefit ?
“A. Yes, sir.
“ Q. Did he comply with your instructions ?
“ A. He did.”

The plaintiff Weston testified, “It was talked over between us beforehand, that I was to make the best arrangement with Mrs Pepper that I could.”

“ Q. He instructed you to do it ?
“A. Yes, sir.
“ Q. Who instructed you ?
“A. F. O. Ketcham.
“Q. After it' was done, did he know what was •done ?
“A. He did.”

On his cross-examination he further testified, as follows:

“ Q. You went to her while a.member of the firm of F. O. Ketcham & Co., under the instruction from your partner to do the best you could %
“A. Yes, sir.”
The defendant Ketcham testified :
“ Q. Why was the change made from ten per cent, to the sum of one hundred and fifty dollars a year ? What conversation, if any, did you have with your co-partners before this agreement of one hundred and fifty dollars was entered into ?
“ A. Mr. Fiske suggested that we should have a different arrangement with Mrs. Pepper, and we talked the matter over between us, and came to a definite sum. Then Mrs. Pepper called on us several times at our office : had conversation with Mr. Fiske, Mr. Weston and myself, relative to the matter,—and came to a conclusion what she would do. She then left us and went home. We then talked the matter over between us, and agreed between us to give her so much money for her right, title and interest in the mark. Mrs. Pepper and me talked the matter over, and we had several conversations about it. I don’t remember all the conversations.
“Q. You had several conversations with her 2
“A. Yes, sir.
“ Q. Where 2
“A. At the store.
“Q. About what time 2 before the agreement was made 2
“A. This conversation was held, I think, in the month of December, 1871.
' “ Q. Several conversations with her 2 What were those about 2
“A. About this name—this trade-mark — this name.
“Q. What did you want to know about it 2
“A. We wanted to change it from the ten per cent, and give her a certain sum of money, for so many years.
“Q. Was that the whole of it 2
“A. Yes, sir.
Q. You wanted to give a certain sum of money, for so many years, at the expiration of which the trade-mark should belong to you 2 “A. No, sir-; to the firm.
“Q. You wanted to buy it for the firm 2
A. Yes, sir.
“ Q. That was your object in having these conversations with Mrs. Pepper 2
“A. Yes, sir.”

The question arises whether upon this evidence which is undisputed, the agreement of January 1, 1872, made between the plaintiff Weston and Mrs. Pepper, operated as a matter of law to vest the right to use this trade-mark in the firm, or in Weston indi- ■ vidually. It will be observed that the consideration for it was paid by the firm out of the moneys of the firm.

If we look at the analogies of the law, as, for example, at the renewal of a lease by a partner in his own name which had been originally granted to the co-partnership, some light may be thrown upon the effect of the transaction, for this agreement with Mrs. Pepper for the use of the trade-mark for five years, and then conditionally to vest, is in the nature of a lease and the same controlling principles apply to it.

In Mitchell v. Read (61 Barb. 310), it was held, that where, before the expiration of a co-partnership, one partner, without the consent of his co-partner, obtained a new lease of the place of business of the firm in his own name, to commence before the partnership ends, such lease vested in the lessee as trustee for the firm. In Burrill v. Bull (3 San. Ch. 15), Sanford, V. C., thus speaks of an analogous occurrence :

“It was a transaction by which one of three joint owners of a lease, deputed by his associates to obtain its renewal for the common benefit, and availing him- . self of his part ownership and his connection with the property to obtain such renewal, procured it in his own name, Tmd attempted to shut out his associates from sharing in its advantages. It is, in short, an unmitigated fraud, against which courts of equity have ample jurisdiction to grant relief.”

Courts of equity have inexorably frowned upon the attempts of one partner to secure any individual advantage in transactions entrusted to him, affecting the rights or property of the co-partnership. He is held to the highest acconntability as an agent, and the agency is one that in every commercial community invokes the highest confidence and responsibility, and should be protected by every safeguard.

In the case under consideration, the plaintiff Weston went, at the request of his co- partners, to make a new arrangement as to what should be paid for the future use of the trade-mark, the right to use which the firm already possessed on payment of ten per cent, of the gross profits. It is undisputed that the firm up to its dissolution, January 30, 1874, paid from its funds the annual sum to be paid, under the agreement which he took in his own name. If the law is to be applied to this transaction upon the facts as they appear, that is applied to similar transactions by a partner in respect to taking the extension of the firm’s lease in his own name, it is quite certain that the plaintiff took nothing by the agreement, except as trustee for the firm.

But there are considerations urged by the plaintiff, which, it is claimed, should make this case an exception to the general rule. It is said, and so found by the referee, that this agreement, upon its execution, came to the knowledge of the other two partners, Fiske and Ketcham, and that they severally ratified the same.

Fiske, one of the partners, and now one of the plaintiffs, says he saw and read the paper soon after it was executed, and expressed his disapprobation, and then proceeds to testify:

“ When the paper was drawn up I thought, being a member of'the firm of F. O. Ketcham & Co., I should have an interest in that trade-mark as well as Weston, but Mrs. Pepper decliued to give it to any one but Weston, and we acquiesced in that, to pay her one hundred and fifty dollars a year.
“Q. What else did you say in stating your disapprobation?
“ A. That is the substance of it.
“ Q. Did you say anything to Mr. Ketcham in. regard to your disapprobation of this contract?
“A. I did.
“ Q. Please state what that was?
“A. General disapprobation.
“ Q. Why did you disapprove of it?
A. I thought it was not fair.”

The plaintiff Weston testifies :

“Q. What remark if any did Mr. Ketcham make when you showed him that agreement ?
“A. I don’t remember whether he made any at thé time I showed it.
“Q. Did he make any afterwards ?
“A. I have heard him make a great many since.
“Q. In regard to this agreement?
“A. Tes, sir.
“ Q. What was the substance of the remark?
“A. He thought I ought to let him in and let him have an equal interest.”
On his cross-examination he testified :
“Q. Did you say anything to Messrs. Fiske and Ketcham as to your influence with Mrs. Pepper ?
“A. I probably have ; I don’t remember, though.
“ Q. Did you state to them that you thought, owing to your influence, you could make the best bargain in this matter ?
“ A. Probably I did ; I would not swear that I did.”

Albert Johnson, who occupied the same office with .the firm, testifies in respect to this agreement:

“ Q. Do you remember hearing it talked about by Mr. Ketcham and his co-partners Fiske and Weston ?
“A. I do.
“Q. State to the court what you recollect hearing him say on the subject of this agreement on Mr. Ketcham?
“A. The only thing I remember, and I can not give the words for that, Mr. Ketcham did not like it, and was angry because the paper was made out in the name of Greorge H. Weston and not in the name of the firm.
“ Q. What did he say in reference to that?
“A. I can not say what he said in regard to that. He did not like it.”

The evidence is uncontradicted that the two other partners refused to approve or recognize this agreement made by Weston in his own name, as a proper discharge on his part of the duty confided to him by the firm.

It is to be presumed that the court in finding that they did ratify it, based that finding upon the fact that the firm continued to use the trade-mark and conduct the business of the manufacture of the oil the same as before, and did not resort to their legal remedy. This is more in the nature of acquiescence than ratification ; and again, such acquiescence was doubtless forced and not voluntary, for Weston alone knew the secret of making the oil, and if they had moved in the matter adversely to him, they would, in asserting their remedy, not have possessed the knowledge by the use of which the capital employed in the manufacture of the article, no part of which was contributed by Weston, might be made remunerative. It seems to be inequitable, under such circumstances, to decide that, because they refrained from attacking the transaction at once, they acquiesced in or ratified it, and, least of all, that there was a ratification of it in the sense of waiving any equitable rights that it gave the firm. This forced quiescence on the part of the other members of the firm can hardly be held sufficient to sustain tile finding of the court, that there was a ratification of this agreement.

It is urged by the respondent, and the court so finds, that Ketcham never knew the mode of manufacturing this oil. This is advanced as a reason why he should be restrained from using the trade-mark. The answer to this is obvious. He may become possessed of such knowledge, and even if he sells a different article from what he by the trade-mark represents it to be, • his responsibility is to those whom he deceives. His ignorance, or his selling another article, does not confer on the plaintiffs any rights to restrain him from interfering with what does not belong to them any more than to him exclusively.

The plaintiff Weston bargained for this right at the request of the firm, and for the use of the firm, and the funds of the firm paid for the use of it and for the acquisition. It is left by the articles of dissolution an equitable asset of the firm. The plaintiffs by their own showing are not in a position to ask equitable relief, and they fail to establish any exclusive right that entitles them to an injunction.

In this aspect of the case, it becomes unnecessaiy to consider the questions raised by the exceptions taken on the accounting for damages, or the other exceptions raised in the case.

The judgment appealed from should be reversed with costs to appellants to abide the event of the suit, and a new trial granted, and the order appealed from should be affirmed, with costs, as I concur also, in that respect, with the views expressed by Judge Freedman.

Freedman, J. (concurring).

I concur in the reversal of the judgment for the reasons stated by my brother Curtis.

The defendants also appealed from an order denying their motion for a new trial. The motion was based on the case and exceptions, and it was addressed to a special term of this court, not held by the judge who had tried the case. The grounds of the motion were that the judgment is excessive and contrary to the law and the evidence of the case. Consequently, the object of the motion was to obtain a review on the merits, of the decision of the first judge on a trial of -an issue of fact without a jury. Such a motion is not authorized by law. The mode of reviewing either errors in law or in fact, where the trial is by the court, is entirely distinct from that adopted where the trial is by jury ; and a review of a judge’s decision, on a trial of an issue of fact, can only be had at general term on appeal from the judgment entered upon such decision (Code, § 348; Malloy v. Wood, 3 Abb. Pr. 369; Watson v. Scriven, 7 How. Pr. 9; Burnett v. Phalon, 4 Bosw. 622).

The only apparent exceptions, for there really are none, are:

I. If, under section 267 of the Code, .upon motion by either party, to a general or special term, it shall be made to appear that the decision of a single judge is unreasonably delayed, the court may make an order-absolute for a new trial, or may order a new trial, unless the decision shall be filed by a time to be specified in the order.
II. Where the decision filed under section 267 does not authorize a final judgment, but directs further proceedings before a referee or otherwise, either party may move under section 268 for a new trial at general term.

The case before us does not fall within either of these exceptions, and the order appealed from should therefore, be affirmed with costs.

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

Order affirmed, with costs.


source: Caselaw Access Project

author: By the Court.—Curtis, J.

license: Public Domain

text:
    ABRAHAM VAN NOSTRAND, Plaintiff and Appellant, v. THE N. Y. GUARANTY AND INDEMNITY COMPANY, Defendant and Respondent.
    I. CONTRACT BY REFERENCE.
    1. Where a written or printed contract signed by a party contains in its body a clause such as, “ subject to the conditions printed on the other side and which forms a part of this agreement,” the conditions thus referred to become a, part of the contract.

    1. Presumption.
    One must be presumed to know the nature of a contract he signs.
    3. Proof that the conditions referred to formed part
    OF THE CONTRACT, WHAT SUFFICIENT.
    1. Proof of the signature of the party (in the absence of other evidence) is sufficient to establish that he entered into a contract of which the conditions referred to formed a part.

      a. Evidence what insufficient to overcome such proof.

    1. Evidence which shows neither compulsion, nor fraud, nor absence of opportunity for acquiring the fullest knowledge, nor even absence of notice or knowledge.
    II. NEGLIGENCE—GROSS.
    1. Pledgee’s limiting liability to gross negligence. -
    1. What will not constitute gross negligence. Where the pledgee leaves the goods in a warehouse selected by the pledgor (which was a suitable place), under the charge of warehousemen who had previously been co-partners with the pledgor, and who had sustained good reputations up to the time of their subsequent absconding, and employs an agent who periodically visits the warehouse, and examines the goods to see that they are properly stored and protected, and kept in proper condition, Ms last visit being about a week before the absconding,
    HELD,
    that the pledgee was not guilty of gross negligence, and therefore not liable for the value of the goods stolen or misappropriated by the absconding warehousemen.

      Before Freedman, Curtis, and Speir, JJ.

      Decided February 1, 1875.
    Appeal by the plaintiff from a judgment in favor of the defendants for seven thousand nine hundred and ninety-six dollars and forty cents.
    On March 24, 1869, the plaintiff was the owner of eleven thousand six hundred and seventy-nine bushels of oats, then on storage in certain public stores belonging to Messrs. Scott & Company, located at the Atlantic Bocks in the city of Brooklyn.
    On that day the defendants loaned six thousand dollars to the plaintiff, payable in thirty days. On April 23, 1869, the loan was continued for thirty days further; and on May 22, 1869, the loan was further continued for thirty days. To secure the payment of this loan, the plaintiff pledged to, and “ confided to the management, custody, and charge of,” the defendants the eleven thousand six hundred and seventy-nine bushels of oats, endorsing and delivering to them the warehouse receipt he held tor the oats, and at the same time agreeing to pay the defendants interest upon the amount of the loan at the rate of seven per cent, per annum, and the defendants commissions and charges for their “management and charge” of the property, and “all disbursements made by the defendants on account of the said property” while in their custody.
    The defendants, on their part, agreed to take the “management, custody, and charge” of the oats, for which they were to be paid three-quarters per cent, upon the amount of such advance, over and above all disbursements, and to return the property to the plaintiff on the payment of the loan, and the charges agreed by him to be paid.
    On receiving an extension of the loan on April 23, 1869, the plaintiff paid the defendants “ forty-five dollars for taking care of the property” for the thirty days previous, and again on May 22, 1869, on obtaining the second extension, made a similar payment to the defendants for their care of the property up to that time.
    When the loan expired, June 21, 1869, a tender of the amount and interest was made to the defendants, and a demand made of the oats. No objection was made to the tender. The oats were not delivered in consequence of the occurrences hereafter stated.
    When the contract was first made, and on the occasion of each extension, and at various intermediate times, the clerk of the defendants, who had charge of such matters, went to the warehouse of Scott & Co., at the Atlantic Docks, and examined the grain and saw that it was not heated, but that it was in good condition, and was properly stored and protected from the weather. His last inspection of the grain was May 24, two days after the company had given to Van Nostrand the last extension. About a week after this Scott & Co. shut up their storehouse and absconded, and when; on the day after their disappearance, their store was examined, it was found to be empty. Both the plaintiff’s and the defendants' witnesses testified that, up to the time they ran away, Scott <& Co. were conducting business as usual, and were in fair repute and well spoken of in a business way. It was proved that, with the facilities they had at their warehouse, Scott & Co. could easily have removed the whole quantity of oats in a single night. The defendants’ clerk who had charge of the matter, saw them at their office in Wall Street on the afternoon before they absconded, and the next day, on hearing that they had gone, went at once to their warehouse. It was about May 28, or 29, when, as the plaintiff says, he heard that Scott & Co. had gone away. When the plaintiff procured the loan he made a contract in writing with the defendants. by which he agreed to repay the amount loaned with interest, and pledged the oats (eleven thousand six hundred and seventy-nine bushels) to secure the same. This contract was made subject to the following condition indorsed upon it:
    “ The New York Guaranty & Indemnity Company shall not be liable for any loss or injury resulting from depreciation, or from any other cause than the gross negligence of the company or its agents, which may happen to the property mentioned in the instrument on the other side, whilst in its custody.”
    The plaintiff claimed three thousand dollars damages. The defendants set up as a counter claim the amount of its unpaid loan to the plaintiff. For-this amount the court directed a verdict in the defendants’ favor.
    From the j'udgment entered thereon plaintiff appeals.

      Hutchins & Clinch, attorneys, and Edward S. Clinch, of counsel, for appellant, urged;
    I. As ordinary bailees for hire, defendants were bound to use the care required of pledgee's, but having received extra compensation for “their management, custody, and charge ” of the property, they were bound to use extraordinary care and diligence (Arent v. Squire, 1 Daly, 347).
    II. The theft of goods, while in the possession of a pledgee or bailee, is presumptive evidence of negligence (Jones on Bailment, 44; Pothier on Oblig. 620: Chicopee Bank v. Philadelphia Bank, 8 Wall, N. S. 641: Schwerin v. McKie, 5 Robt. 404; Arent v. Squire, 1 Daly, 347).
    ■ III. The facts in the case constitute no answer to the charge of the negligence; the bailee is bound to-take better care of the goods than the bailor had taken, if the bailor were not a prudent man (Jones on Bail/m.
      82, 83; 2 Kent’s Com. 580; Doorman v. Jenkins, 2 Adolph & Ellis, 256).
    IV. The defendants can not escape liability except for gross negligence, under the first condition printed on the back of the contract between' them and the plaintiff, unless they first bring home to the plaintiff knowledge of the terms of the condition, and then show his assent thereto. This they did not attempt to do. (Blossom v. Dodd, 43 N. Y. 464; Dorr v. N. J. Steam Navigation Co., 43 N. Y. 264; Dana v. Munroe, 38 Barb. 528.)

    V. The burden of proof is on the defendants, especially in those cases where there has been a total default in the delivery, and where the action is on contract. The defendants, to succeed, should have then shown they had not been guilty of negligence (Cairnes v. Robbins, 8 Mees & Wels, 258; McKenzie v. Cox, 9 Carr & Payne, 632; Platt v. Hibbard, 7 Cow. 497; Arent v. Squire, 1 Daly, 347; Schwerin v. McKie, 5 Rob. 404; Day v. Riddle, 16 Ver. 48; Phillips on Ev. Cairnes’ & Hill’s Notes, p. 633).
    VI. Irrespective of any questions heretofore suggested, as the case stood when the defendants closed, it was for the jury to say whether the defendants had been guilty of. any negligence in the care of the property. Whether a party has been guilty of negligence is alway a question to be determined by the jury (Story on Bailm. 15; Doorman v. Jenkins, 2 Adolph & Ellis, 256; Vaughan v. Menlove, 3 Bing., N. C. 468, 475; Brown v. N. Y. C. R. R. Co., 31 Barb. 385; Moore v. Westervelt, 21 N. Y. 103; Welling v. Judge, 40 Barb. 193; Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y. 310, 312; Hegan v. Eighth Ave. R. R. Co., 15 N. Y. 380; Van Horn v. Kermit, 4 E. D. Smith, 457; Bush v. Miller, 13 Barb. 489; Wells v. Steam Nav. Co., 8 N. Y. 375).
    VII. A judge may direct a verdict only in such cases where a verdict by the jury against the opposite party would be set aside as against the weight of evidence. If the jury, in this cause, had found that the omission of the defendants to look after nearly twelve thousand bushels of oats in the month of May, for over a week, when stored in a public warehouse, with no evidence of the employment of a watchman, and with the liability of oats in that season of the year to become heated and rotten, was negligence, such as a prudent man would not be guilty of, the appellate court would not disturb the verdict (Schanck v. Morris, 2 Sweeney, 464; Fish v. Davis, 62 Barb. 122; St. John v. Mayor, 6 Duer. 315; Ross v. The Mayor, 4 Rob. 49).

      Barney, Butler & Parsons, attorneys, and Thomas H. Hubbard, of counsel, for respondent, urged
    I. The defendant was pledgee of the grain. As such, it was, by the rules of the common law, liable-only for the exercise of ordinary care in respect to the property pledged (Story on Bailm. § 332; Hyland v. Paul, 33 Barb. 241). This being the case, the defendant, as pledgee, can not be held liable for loss by the theft or fraud of Scott & Co., against which the exercise of all its care was no protection (Story on Bailm. §§ 39, 334, 335, 338; 2 Kents Com. *580, *581; Redf. on Car. § 661).
    II. But beyond the protection afforded it by the-rules of the common law, the defendant had by special contract limited its liability to losses which should arise from the gross negligence of itself or its agents. This limitation it had the right to make (Wells v. Steam Nav. Co., 2 N. Y. 204; Dorr v. N. G. Steam, Nav. Co., 11 N. Y. 485, p. 491; Smith v. N. Y. Cent. R. R. Co., 24 N. Y. 222, p. 223).
    III. There was no disputed question of fact in the-case. There being no disputed question of fact, it was-proper for the court to direct a verdict (Wharton on Neg., § 420, and cases there cited).
   By the Court.—Curtis, J.

The plaintiff and defendants entered into a contract by which the liability of the latter for the oats pledged, is limited to such losses only as shall arise from their own negligence or that of their agents. The parties had a right to enter into such a contract, and having done so are bound by it, unless some lawful reason exists by which the plaintiff is released from this provision of it.

It was claimed on the argument, that the plaintiff had no knowledge of the terms of this condition printed on the back of the contract, and never saw it, or assented to it, and that the defendants failed by any evidence to bring this knowledge home to the plaintiff.

The evidence that the plaintiff signed a contract containing such a condition, and referred to in the body of it as “being printed on the other side,” is, in the absence of other proof, enough to establish his liability under it. The plaintiff must be presumed to know the nature of the contract he signed, when he received the check for six thousand dollars from the defendants. His testimony “that the company produced the paper and caused me to sign it, and I then delivered it to them,” is perhaps not intended as a lucid statement of a common business transaction, but it fails to show any compulsion or any absence of notice or knowledge of its contents, or absence of opportunity for acquiring the fullest knowledge. To sustain the views urged in this respect on the part of the plaintiff, would be to endorse a doctrine that would prejudice the enforcement of all ordinary contracts.

The question only remains for consideration, whether there has been any gross negligence in respect to the property pledged by the defendants. The place-where it was deposited was suitable. It had been selected by the plaintiff himself, and it was in charge of persons who had been previously co-partners in business with the plaintiff, and who had sustained, up to the time of their absconding, good reputations. The defendants also had other grain in the same stores, and also had an agent who visited, with reasonable diligence, the property in question, and saw that it was protected from the weather, and from heating, and deterioration from other causes.

What more could be reasonably expected from persons who give the most careful attention to property, even of their own.

The defendants exercised that full measure of care which the civil law designates as that ‘quae diligens pater-familias in suis rebus praestare solet.”

Gross negligence has been defined as “ that omission of care, which even the most inattentive and thoughtless men never fail to take of their own concerns.” No such omission as this, has been shown in the slightest degree, on the part of the defendants or their agents. It must be held, that the plaintiff failed to prove any gross negligence in regard to the property pledged, and this, by the condition of the contract, disposes of the appeal.

It is unnecessary for the purpose of deciding this case, to inquire as to whether there was any negligence at all on the part of the defendants. But the impression is very strong that there was none, and that the ancient and just principle should apply, “Si creditor sine vitió suo argentum pignori datum perdiderit, restituere id non cogitur.”

The judgment appealed from should be affirmed, with costs to the respondent.

Freedman and Speir, JJ., concurred.


author: Sedgwick, J. By the Court.—Curtis, J Monell, Ch. J. (concurring).

text:
    CHARLES W. WATSON, Plaintiff and Respondent, v. MATTHEW T. BRENNAN, Sheriff, &c., Defendant and Appellant.
    L—SHERIFF’S LAW.
    1. False return.
    1. Duty of sheriff in respect of executions.

    He is bound to use all reasonable endeavors to execute the process of the law in the most effectual manner.

    3. Custody of the law.

    The fact that property is in the custody of the law does not absolve the sheriff from above duty, a. He is nevertheless bound to use such reasonable care and diligence as will, if the goods or any part thereof are under the fact and the law subject to the execution held by him at the time of its issue, or if they or their proceeds or any part thereof subsequently during the life of the execution become subject thereto, enable him or the plaintiff in the execution so to subject the same.
    1. Omitting to use suoh ca/re and ditigenee. a. If the plaintiff thereby loses the benefit of his execution, the sheriff will be liable in an action for g false return.

    3. Defense to action for false return.
    1. Bankruptcy proceedings. Attacking judgment. . a. It does not lie with the sheriff to urge that the plaintiff’s judgment is invalid under the bankrupt act,'and that therefore no act done under or by color of it could inure to plaintiff's benefit.

    H.—APPLICATION OF ABOVE PRINCIPLES.
    Thus where the defendant, being an incumbent sheriff, held three executions against the same judgment debtor (the plaintiff’s being the junior of the three), and the preceding sheriff under a previous attachment against the same judgment debtor, had attached and held in custody goods of sufficient value to satisfy the attachment and all the executions, and refused to allow his successor to seize and levy on them under bis executions, but allowed a portion to be removed from his custody in a concealed and surreptitious manner, by persons other than his successor, of which the deputy holding the executions had notice. And afterwards bankruptcy proceedings were commenced against the judgment-debtor in which the attachment was declared void under the-bankrupt act, and an order made on notice to the incumbent sheriff, authorizing him to sell the property which had not been removed, and directing him to hold the proceeds, under which order he did sell and afterwards applied the proceeds on the two-executions prior to the plaintiff’s, leaving a balance unpaid on one of them, the -money so applied, however, as well as the proceeds of the goods removed (which were sold under an order in-the bankruptcy proceedings) were subsequently, under an order in those proceedings, paid over to the assignee in bankruptcy, and the plaintiff’s execution was thereafter returned nulla, bond;

    HELD,
    1. That the deputy holding the plaintiff’s execution owed to him the duty

    of seeking from the watchman who gave the information of the-removal, what information and knowledge he had about it, of making inquiries for persons or carts likely to remove the goods, of asking to look at the warrant of attachment, of applying to-the former sheriff himself in relation to the removal, of calling on him to release from the levy of the attachment all goods-beyond what was necessary to satisfy the attachment and sheriff’s-fees, of notifying the plaintiff of the excessive levy under the attachment, and of the removal, and of either making a claim under the plaintiff’s execution in the bankruptcy proceedings, or notifying the plaintiff so that he could either indemnify the sheriff or make a claim himself.
    2. That the deputy not having performed these duties

    the plaintiff had lost the benefit of his execution by reason of such negligent omission.
    3. That the negligence was of such, character as to entitle the-plaintiff

    to recover, in an action for a false return, the amount of his execution and interest thereon.
    4. That the proceedings in bankruptcy did not relieve

    the sheriff from the liability raised by such negligence.
    5. Attacking the judgment.

    It does not lie with the sheriff to raise the objection that plaintiff’s judgment was invalid under the bankrupt, law, and urge that therefore neither the property nor its proceeds could be realized under it.
    Before Monell, Ch. J., and Curtis, J.

      Decided February 1, 1875.
    The appeal is by the defendant from a judgment at special term. The trial was without a jury, the parties having waived a jury.
    The action was brought to recover damages against the defendant for a false return of “no property” upon an execution.
    The defenses were a general denial, prior executions in favor of another party against the same defendants, and executed upon all the property of the defendants, and further that plaintiff’s execution, and the judgment upon which it was founded, were obtained and issued to procure a preference in violation of the bankrupt law of the United States, and therefore void.
    The findings of the court were as follows:
    First.—That at the time of issuing the execution hereinafter mentioned, the defendant was the sheriff of the county of New York in the State of New York.
    Second.—That on January 31, 1871, in an action in the marine court of the city of New York, wherein this plaintiff was plaintiff, and Edward P. Sanger and Walter Scott were defendants, the plaintiff recovered a judgment duly given by said court against the said Edward P. Sanger and Walter Scott for the sum of four hundred and nine dollars and thirty-three cents damages and costs, which judgment was thereafter, to wit, on February 1, 1871, duly docketed in the office of the clerk of the city and county of New York.
    That thereafter and on said February 1, 1871, an execution against the property of the said Edward P. Sanger and Walter Scott was duly issued by the plaintiff upon said judgment, and directed and then delivered to the defendant, as sheriff of the city and county of New York, for service.
    Third.—That said execution was directed to and delivered, to this defendant, as sheriff of the said city and county of New York, for service, whereby, after containing the statement and recital of the matters required to be stated and set forth in such case, pursuant to section 289 of the Code of Procedure, and after setting forth that the whole of the judgment upon which said execution was issued, was then actually due, this defendant was, in substance, commanded to satisfy the said judgment out of the personal property of the said judgment debtors within this defendant’s county, or if sufficient personal property could not be found, then out of the real property in his county belonging to such judgment debtors on the day when the judgment was so docketed in his county, or at any time thereafter in whose hands soever the same might be, and to return the said execution within sixty days ■ after the receipt by him, as required by law.
    Fourth.—At the time of the delivery of such execution to the defendant, there was within said county personal property belonging to the said Edward P. Sanger and Walter Scott, out of which the said sheriff might have satisfied the said execution, of which property he then and there had notice.
    Fifth.—That notwithstanding the premises, and in violation of his duty as sheriff, he did not satisfy said judgment or any part thereof, but on November 28, 1871, falsely returned upon said execution to the clerk of the court of common pleas for the city and county of New York, that said Edward P. Sanger and Walter Scott had not any goods or chattels within said county whereby he could cause to be levied the amount of said judgment and execution or any part thereof.
    Sixth.—That by the said negligent and wrongful conduct of the defendant, the plaintiff sustained damages in the amount of said execution, to wit, four hundred and nine dollars and sixty-three cents and interest. That the amount of such interest to March 11, 1874, is the sum of eighty-nine dollars and fourteen -ents.
    Seventh.—That the said judgment upon which said execution was issued, was obtained by the plaintiff in a hostile suit in which the said judgment debtors denied their liability, and contested the plaintiff’s claim upon the merits.
    Eighth.—That the said judgment debtors did not procure, or suffer, nor intend to procure or suffer their property to be taken under said execution with intent to give a preference to the plaintiff, nor with intent to defeat or delay the operation of the bankrupt-act.
    And as conclusions of law fi;om the foregoing facts, the court found that the plaintiff was entitled to judgment against the defendant for the sum of four hundred and ninety-nine dollars and seven cents.
    At the defendant’s request the court found the following additional findings :
    That the defendant’s term of office as sheriff commenced on January 1, 1871, and that his immediate predecessor in office was James O’Brien.
    That on January 12, 1871, the defendant received executions, issued in due form of law, upon two judgments of the supreme court, in favor of the Tenth National Bank, against the said Edward P. Sanger and Walter Scott, for the sum of four thousand and eighty-three dollars and forty-seven cents, and five thousand and fifty-one dollars and one cent, respectively, and in due form of law, commanding the defendant to satisfy said judgments out of any property of the said Sanger & Scott in the city and county of New York.
    That the defendant gave the said O’Brien notice that he held executions against said debtors, and levied upon all of the said property, subject to the rights of said O’Brien ; and at the request of the plaintiffs in said action, the defendant on January 15, 1871, placed a man outside of said place of business, for the purpose of taking possession of said property in case the said O’Brien should for any reason release it.
    That on February 24,1871, a petition in bankruptcy was duly filed in the United States district court for the southern district of New York, against said Edward P. Sanger and Walter Scott, by certain of their creditors, under and pursuant to which petition and the proceedings thereunder the said Sanger & Scott were adjudicated bankrupt, and Bichard Warren and Edward Rowe were chosen assignees of the estate of said bankrupts, and an assignment of said estate duly executed to said assignees on April 11,1871, and on the day said petition was filed as aforesaid, the said United States district court issued its injunction restraining the defendant and said O’Brien and all other persons from disposing of or interfering with the property of said debtors, Sanger and Scott, which said injunction was served upon this defendant on the said February 24, 1871.
    That on or about March 8, 1871, the petitioning creditors filed their further petition addressed to the said United States district court, praying that said goods at No. 470 Broome street be sold at public auction as perishable, and the proceeds held subject to the order of that court; that said petition, with notice thereof, was served upon the defendant and upon James O’Brien, late sheriff as aforesaid; that said O’Brien and this defendant appeared and opposed said motion, but the said court, nevertheless, made its order modifying its injunction so as to allow this defendant to sell said property through Wilmerding, Hog net & Co., auctioneers, and hold the proceeds, after paying the expenses of sale, subject to the said injunction; and the said Wilmerding, Hoguet & Co. did sell said property, and paid to this defendant the sum of eight thousand two hundred and forty-nine dollars and twenty-five cents ; that he applied five thousand and fifty-one dollars and'one cent thereof in satisfaction of ■one of said Tenth National Bank executions, and three thousand one hundred and eighty-eight dollars and twenty-four cents, applied upon the other, and made a return of “ no goods,” as to the balance of said execution.
    At the plaintiff’s request the court found the following additional findings :
    That on January 12, 1871, two executions against the said Sanger and Scott were issued to the defendant, upon judgments in favor of the Tenth National Bank, for four thousand eight hundred and three dollars and fifty-seven cents, and five thousand and fifty-one dollars and one cent, which executions were in the hands of the defendant at the time of the issuing of the plaintiff’s execution.
    That on January 14, the deputy of the old sheriff, upon said attachment, removed from the said stock of goods more than sufficient to satisfy such attachment, with his costs and expenses, of which fact the defend ant had notice; and, nevertheless, continued in possession of the stock at the judgment debtors’ store, and forbade the defendant’s deputy to take any of the goods under his execution, and the defendant did not take possession of the same, although he had notice that the goods had been removed under the attachment.
    The justice found as above requested, omitting, “ of which fact the defendant had notice.”
    That under an order of the United States district court the said goods were sold by the sheriff, and realized upon such sale $8,249.25, of which sufficient to satisfy the execution for five thousand and fifty-one dollars and one cent in favor of the Tenth National Bank was applied thereon, and the same was returned satisfied, and the remaining three thousand one hundred and eighty-five dollars and twenty-four cents was applied upon the other execution for four thousand eight hundred and three dollars and forty-seven cents in favor of said bank, and the same was returned satisfied as to the three thousand one hundred and eighty-five dollars and twenty-four cents, and no real or personal property as to the remainder, and the defendant received his fees upon such execution.
    That the attachment for three thousand dollars in favor of Algeo having been levied i less than four months prior to the filing of the petition in bankruptcy, the same was dissolved by the adjudication thereon, and the goods removed from the store on January 14, by the deputy of the former sheriff, were surrendered to the marshal under the bankruptcy proceedings, and afterwards sold by William Topping & Co. in the bankruptcy proceedings, under an order of the United States court, and realized five thousand and forty-nine dollars and sixty-four cents over and above all expenses of sale.
    That the defendant took no action and made no. levy under the plaintiff’s execution upon said goods, though he had notice that said goods were in his county, and gave no notice to him of any of the proceedings taken by or against said defendant in the bankruptcy court in respect to the goods of the judgment debtors, Edward P. Sanger and Walter Scott, and set up no claim or lien in the proceedings in the bankruptcy court under the plaintiff ’ s execution.
    That the judgment debtors did not procure or suffer, or intend to procure or suffer their property to be taken on the execution of the plaintiff with the intent to give the plaintiff a preference in violation of the bankrupt act.

      There were exceptions by the defendant to each and all of the findings of the court.
    At special term the following opinion was delivered :

   Sedgwick, J.

The defendant became sheriff in 1871. Some time before January 1, 1871, James O’Brien, the late sheriff, through McKnight, one of his deputies, seized a stock of goods belonging to Sanger & Co., in their store in Broome-street, under an attachment against them, and remained in possession down to February 34, 1871. The attachment was in the sum of three thousand dollars.

On January 13, 1871, two executions were issued to the defendant. These were in the aggregate for nine thousand eight hundred and fifty-four dollars and forty-eight cents. On that day the defendant’s deputy, one Schmitz, went to the store in Broome-street for the purpose of levying under these executions. He was informed by or in behalf of McKnight that the latter had possession of all the goods by virtue of the attachment. The defendant’s deputy, Schmitz, did not take or attempt to take any possession or control of any goods, but made what he called an informal levy upon the surplus, if any, that might be left after satisfaction of the attachment. He asked McKnight to allow him to take possession, but McKnight refused.

On January IS, 1871, defendant’s deputy, Schmitz, put a new man, named Pearsall, on guard over the .;tore, but not in it, for the purpose of taking actual possession if the late sheriff’s deputy, McKnight,. should abandon his levy under the attachment.

On January 14, 1871, McKnight removed goods from the store of the value of five thousand and forty-nine dollars and sixty-four cents. The defendant’s deputy, Schmitz, was informed by his man Pearsall that McKnight had taken goods. He was not informed of the value of these goods, or of the place to which they had been taken. He received this information before February 24, 1871. They had been taken to a place for storage in this county. On February 1, 1871, the. plaintiff duly took out an execution against the property of E. P. Sanger & Co., for the sum of four hundred and nine dollars and thirty-three cents. This was placed, to be levied, in the hands of defendant’s deputy, Schmitz, on the same day.

Nothing occurred before February 23, 1871, to prevent the deputy, Schmitz, from doing his whole duty to the plaintiff under his execution. He was bound to use reasonable and ordinary efforts to find property on which he might levy, that would as far as possible pay the three executions referred to. Until February 1, 1871, when plaintiff’s execution was placed in his hands, the plaintiff in the prior executions could alone call him to account, but on February 1, and from that to at least February 23, the plaintiff here had a right to his diligence in endeavoring to levy sufficient under the executions in his hands, to secure the three. He knew of the goods in Broome-street. They were at least of the value of eight thousand three hundred and thirty-nine dollars and twenty-five cents. He had heard that McKnight had taken under the attachment in his hands goods from the store. This case, I think, turns upon the conduct in respect of these goods. If he used ordinary diligence and reasonable effort to discover where they had gone, the defendant is not responsible for any consequence that came from his- not having known concerning them. If the performance of his duty would have made known to him where the goods were or what they were, and if then a use of ordinary means would have enabled him to make a levy that would have secured the plaintiff’s execution, the defendant is liable to respond to the plaintiff for the levy not having been made.

If the goods, both in Broome-street and on storage, were held regularly and in compliance with. law under the attachment, the defendant’s deputy had no power to seize or take possession of them, or any part of them. The deputy holding the attachment had a right to execute the process, so as to take or keep possession of enough goods to secure the payment of three thousand dollars. Ho question was made as to the amount of fees under this attachment. Ho demand seems to have been made for them out of the property when it went into the bankruptcy court.

What did defendant’s deputy, Schmitz, do to discover the property that had been taken away from the store? He first asked deputy McKnight’s assistant where the goods had been taken to. This assistant told him to ask McKnight. McKnight was asked, but refused to tell him. He also asked one of the firm of Sanger & Co., who professed to know not, and also the present plaintiff’s attorney, who, of course, did not know.

What might he have done without extraordinary vigilance, but in the ordinary mode of getting knowledge used by sheriff’s officers? He might have asked his man Pearsall what his sources of information were, and, in this way, gone back as far as possible to the facts. He might have made ordinary inquiries for persons or carts likely to take away that large amount of goods. He might have made inquiries at places where they would likely be left during the pendency of the attachment. On receiving the answer he did from McKnight, it would have been, I think, an ordinary step for him to go to the sheriff, O’Brien himself, and to call for the exercise of authority over McKnight. He knew, or might have known, that the goods in the store, were more than sufficient levy under the attachment, and he could not, therefore, content himself with the presumption that the other goods had been taken away duly, in obedience to the commands of the attachment. That fact, in connection with an unnecessary and evident concealment by McKnight, was sufficient to apprise him that they were goods which should be applied to the execution. I think that if he had used the diligence required of him (Hinmain v. Borden, 10 Wend. 367; Tomlinson v. Rowe, Hill & D. Sup. 410), he would have learned the place where the property taken away was and what its value was.

There would then have been, to his knowledge, property of E. P. Sanger & Co. in this county of the value-of thirteen thousand three hundred and eighty-eight dollars and eighty-nine cents ($13,388 89). It is clear that deputy McKnight had no legal right to hol'd all this property under the attachment. He could lawfully hold only so much as would be sufficient to satisfy the attachment-plaintiff’s demand.

There is some reason for believing—that is, if we rely on Schmitz’s testimony—that the attachment was levied and used in the interest of E. P. Sanger & Co. to the knowledge of Algeo. The testimony is that McKnight gave up possession under the attachment as soon as the injunction in bankruptcy was served, viz. February 25, 1873. But it had not been then determined that E. P. Sanger & Co. were bankrupts. If McKnight was bona fide attempting to protect Algeo’s interest, it is most likely that possession would have been maintained until the adjudication in March. But the proof is not sufficiently strong perhaps to show that Algeo was a party to such a use of the process as to require us to decide that Deputy Schmitz should have disregarded it.

But as it was manifest to deputy Schmitz that McKnight was making an excessive levy under the attachment, his duty to the executions he held required that he should take ordinary measures to have such parts of the property as were not properly attached relieved, so that he might levy. The least he could have done was to make a specific demand of McKnight that he should release whatever was in the store that was not necessary to secure the attachment, and, in case of a non-compliance by McKnight, to have made the same demand of sheriff O’Brien. We must deem that there would have been an obedience of law by public officers when the specific request was made. And if there had not been negligence in reference to the goods taken from the store, the executions might have been levied upon them also.

There would have been enough value to have fully paid the claim, in the attachment suits and the three executions, including the present plaintiff’s.

We have left out of view that part of one of the prior executions as to which the defendant returned nulla bona. There is authority for saying that the return binds him in this action, and that he can not contradict it, for the purpose of maintaining that the prior executions would have exhausted the leviable property of E. P. Sanger & Co. before plaintiff’s execution could have been reached (Patton v. Westervelt, 2 Duer, 362). On February 24, 1871, an injunction was issued out of the bankruptcy court restraining all persons having property and goods of E. P. Sanger & Co. from parting with them. This was some time before they were declared bankrupts. As we have seen, on that day McKnight gave possession of the goods in the store to defendant’s deputy, and the latter went into possession about March 11, 1871. The marshal serving the warrant in the bankruptcy proceeding claimed a right to take these goods. The defendant’ s deputy claimed to hold them only for the benefit of the two first executions. By consent and order of the bankruptcy court these goods were sold, and the various claims transferred to the proceeds. The case does not show particularly what the sheriff claimed in respect of the goods taken away by deputy McKnight. The attachment itself was dissolved by the bankruptcy proceedings. I think there can be no doubt that the defendant made no claim whatever as against these-latter goods, in the bankruptcy court in behalf of the present plaintiff. If he had not been negligent, there would have been what is tantamount to a levy in behalf of the plaintiff’s execution—that is, there would have been a levy under that execution, or under some other, which would have inured to its benefit. Irrespective of the effect of the bankruptcy, the proof is, the plaintiff would have recovered the full amount of his execution, and therefore that he has been damaged in that amount.

I do not think that any consideration arising out of the bankruptcy proceedings mitigates the damages. What would have been the effect of the sheriff’s litigating in behalf of plaintiffs executions in the bankruptcy court, after notice to plaintiff of the proceeding, in case of an adjudication against the claim, does not call for-answer here, inasmuch as there was no such adjudication, and no such claim or notice. The defense then rests upon the suggestion that if the defendants had so-acted in behalf of the plaintiff that the latter had an interest in a levy, it would have resulted in no benefit to the plaintiff, because the bankruptcy court, in that very proceeding, adjudged that the assignee had a, right to the property free of the two prior executions founded on judgments declared to be in violation of the bankrupt act, and that the plaintiff’s judgment would have met a similar fate, or because this latter judgment was in violation of the bankrupt act. I think this is speculative. The two prior judgments might have been against the bankrupt act, and the plaintiff’s judgments might not have been. The late decisions of' the supreme court would uphold it. It certainly would not have been disregarded, if the assignees in bankruptcy had not seen fit to question it. It was valid, except as they might take advantage of any defect, if there were one. It is not the sheriff who can make this claim for the assignees. He owes fidelity to the process issued in behalf of the plaintiff. The assignee might never have made an attempt to'mrpeach that process.

In substance, under sections 35 and 39 of the bankrupt act, the assignee has a chose in action by which “he may recover the property or the value of it from the person so receiving.it or so to be benefited,” or “ may recover back the money or other property so paid, conveyed, sold, assigned, or transferred contrary to this act; provided the person receiving such payment or conveyance had reasonable cause to believe that a fraud on this act was intended and that the debtor was insolvent.” The defendant has no right to diminish the plaintiff’s claim against him, by showing (if he could) that facts exist which would have put it in the assignee’s power to take the goods levied upon, or recover their value if the proceeds had been paid to the plaintiff. Section 35 says that the mode of getting the preference is void. That is the equivalent of language used in our own statutes against fraudulent conveyances, and means void in favor of those against whom it is considered or declared a fraud. If the assignee might have succeeded, but if he never took the necessary steps to assert his claim, the sheriff has no right to dispose of the plaintiff’s interest in property on the supposition that the assignee might have-asserted and maintained his claim.

The plaintiff should have judgment for four hundred and nine dollars and thirty-three cents and interest.

Brown, Hall & Vanderpoel, attorneys, and J. Sterling Smith and A. J. Vanderpoel, of counsel, for appellant, urged;—The plaintiff failed to show any property out of which the defendant could havecofiected the said execution, or any portion of it. I. On January 12 the property was all at the Broome-street store, with the exception of twenty-five cases of hats, which were at Algeo’s shop; but on January 14, Sheriff O’Brien removed some of the goods from the Broome-street store to Bogert’s, and afterwards took them to Topping’s; and on January 25, said O’Brien removed the hats that-were at Algeo’s to Topping’s also, so that on February 1, there was no property belonging to E. P. Sanger & Co., except what was in the Broome-street store, and the property at Topping’s, all of which was in ex-Sheriff O’Brien’s custody.

II. The defendant could not have collected the plaintiff’s execution out of the property which was in the Broome-street store on February 1. There was not ■enough of it to satisfy the Tenth National Bank executions. The property was sold by Wilmerding, Hoguet & Co., and the proceeds, amounting to eight thousand two hundred and thirty-nine dollars and twenty-five cents, were paid to and held by the defendant, pursuant to an order of the bankruptcy court. The amount of the Tenth national Bank executions which the defendant held was nine thousand eight hundred and fifty-four dollars and forty-eight cents, exclusive of interest, and were prior to the plaintiff’s execution.

III. The defendamt could not have collected the plaintiff’s execution out of the property at Topping’s. The property was already in custody of the law in O’Brien’s possession, and the defendant could not levy on it. “Property once levied on, remains in custody of the law, and it is not liable to be taken by another execution in the hands of a different officer” (Hagan v. Lewis, 10 Peter U. S. 402-3; Dubois v. Harcourt, 20 Wend. 41; Van Loan v. Kline, 10 Johns. 135; Hartwell v. Bissell, 17 Id. 128; Knox v. Smith, 4 How. U. S. 298; Taylor v. Carryl, 20 Id. 583).

IV. The plaintiff may urge that, although the defendant had not the right to the possession of the property which was at Topping’s, and could not have taken and sold it; nevertheless, if he had made an informal levy on it in O'Brien’s hands, or levied upon the property subject to the right of O’Brien, he would have obtained a lien upon it, which would have followed the property into bankruptcy, and could have been asserted against the assignee in the bankruptcy court. The learned judge who tried the case seemed to have had some such idea, and to have been largely influenced by it in deciding the case. But there can be no informal levy upon property not subject to levy ; and, as we have already shown, this property being already in the custody of the law, could not be levied upon by the defendant. Nor could the defendant have levied upon the property subject to the right of O’Brien’s levy. The interest of E. P. Sanger & Co. in that property, on February 1, 1871, was a residuary interest, or the right to the surplus after O’Brien had satisfied his claim, and such an interest can not be levied upon under an execution. Under an execution only goods and chattels can be taken, and there can be no levy where the sheriff at the time of making the same has no right to proceed and sell the property. In the case of pledged property, the pledgor’s interest can now be levied on, but that is by express statutory provision, and in that case the sheriff can take the property and sell it (3 R. S. 5 ed. 645, § 20; Steif v. Hart, 1 Coms. 20).

V. The learned judge who tried the case seems to have regarded the levy of O’Brien as excessive, and to hold the defendant responsible for it. It undoubtedly was excessive after the other attachments in his hands had been withdrawn ; but O’Brien is liable for that, and not the defendant. O’Brien had a valid attachment, and the defendant had no power or authority to compel O’Brien to release to him any of the property. Evidently O’Brien believed he had more property at Broome-street than was necessary to satisfy the attachment claim, for as soon as he knew defendant had received the Tenth National Bank executions he removed from Broome-street property enough to make him safe, and kept the fact concealed from the defendant. He did not, however, give up his levy on the property remaining in the Broome-street store until the petition in bankruptcy was filed, and the learned judge who-tried this case finds fault with him for giving it up as; soon as he did, and attempts to draw conclusions, unfavorable to the defendant, because O’Brien did not hold on to the said property in Broome-street tintil the bankruptcy proceedings had proceeded far enough to vacate the attachment, although O’Brien retained until that time this property at Topping’s, which was ample to protect the attachment claim. Also, if O’Brien had. at any time released all of the property which he held in excess of what was properly held under the Algeo attachment, it would have been inured, as it did, to the Tenth National Bank executions, and not to the plaintiff.

VI. The petition in bankruptcy against E. P. Sanger & Co., was filed February 24, 1871 ; they were-adjudicated bankrupts March 11; the warrant of seizure was issued to the marshal March 14 ; and the assignment was executed to the assignee April 15,. 1871. The defendant could not, therefore, have levied on any of this property after February 24, 1871, even though he had known where it was, and no injunction had been issued by the bankruptcy court restraining-him from doing so (Miller v. Bolles [N. Y. Ct. of Ap.], reported in 10 Nat. Bk. Reg. 515; Miller v. O’Brien,. 9 Id. 26). A principal inquiry in this case, therefore, becomes narrowed to the question whether or not the plaintiff has shown there was property within the city and county of New York, between February 1 (the day plaintiff’s judgment was docketed and execution issued), and February 24, 1871 (the day the petition in bankruptcy was filed), from which the defendant ought, by the exercise of due and reasonable diligence, to have collected the execution.

In addition to the reasons before given the judgment below is erroneous for the additional one that the defendant did not have notice of any property out of which he could collect said execution, nor is the plaintiff now able to point out the existence of any such property. The learned judge evidently based this finding upon the idea that the property at Topping’s could have been levied on by the defendant if he had known where it was, and that knowing that property had been removed from Broome-street, he was negligent in not following it up and ascertaining where O’Brien had stored it, and what it consisted of. He does not find that defendant knew of the property at Topping’s, but that he “ had notice” of it. The question of defendant’s diligence in ascertaining what property ex-sheriff O’Brien had removed from the Broome street store was immaterial.

Brownell & Lathrop, attorneys, and S. B. Brownell, of counsel, for respondents, urged;—The defendant, Brennan, is liable to the plaintiff for the false return and neglecting to make the money upon his execution. Defendant’s neglect was Ms allowing five thousand and forty-nine dollars and sixty-four cents of the goods levied on by him on January 12, 1871, to be removed from Ms control, and suffering them to go to the marshal in bankruptcy without making any claim to them under plaintiff’s execution or notifying the plaintiff so that he could indemnify the defendant or make a claim in the bankruptcy court, and returning the plaintiff’s execution and thus preventing the plaintiff making any claim in the bankruptcy court. This neglect lost the plaintiff his execution. It is idle to

say that the defendant had no notice of these goods, for he actually levied on them on January 12, 1871, and that levy enured to the benefit of the plaintiffs execution when it came to defendant’s hands without a new levy. A levy under one execution, even though it has become dormant, enures to the benefit of a subsequent execution (Peck v. Tiffany, 2 Coms. 451; Camp v. Chamberlain, 5 Den. 198: Rev. Stat. p. 3, ch. 6, tit. 5 § 1, 314, &c.). A levy under one execution enures to the benefit of a second execution subsequently coming to the same officer (Van Winkle v. Udall, 1 Hill, 559; Birdseye v. Ray, 4 Id. 159; Russell v. Gibbs, 5 Cow. 395; Cresson v. Stout, 17 Johns. 116). It is equally idle to say that he could not have made the amount of plaintiff’s execution from them, on account of the Algeo attachment, for there are two thousand and forty-seven dollars and sixty-nine cents, or five times the amount of plaintiff’s execution beyond the Algeo attachment. Lovick v. Crowder, 8 Barn. & Cress. 132, is in point. The sheriff was held liable for negligence in not asking to see the warrant under which the former sheriff claimed to hold the goods (Cited and approved, Paton v. Westervelt, 2 Duer, 386). “When he was informed that the officer of the former sheriff claimed it under a levy, it was the defendant’s duty to ask to see the warrant or execution. If he had done that, he would have seen from its date that there had been such gross delay as rendered it fraudulent and void.”

By the Court.—Curtis, J

The defense set up in the answer, that the plaintiff’s judgment and execution, were obtained and issued to procure a preference in violation of the bankrupt law of the United States, and therefore void, was in view of the recent decisions, and especially that of the United States supreme court in Wilson v. City Bank (17 Wall. 489), not pressed at the argument, and it becomes unnecessary to consider it here.

The evidence shows that O’Brien, the late sheriff, by McKnight, a deputy, previous to January 1,1871, had levied upon the goods of Sanger & Go., at their store in Broome-street, under an attachment for three thousand dollars issued in a suit wherein one Algeo was plaintiff. On January 12, 1871; the defendant’s deputy, Schmitz, went to this store with the, two executions in favor of the Tenth National Bank,, amounting to nine thousand eight hundred and fifty-four dollars and forty-eight cents, to levy, and made, what he calls, an informal levy. McKnight was in possession, and refused to let him have access to the goods, or possession, or to let him make an inventory of them. Schmitz learning that the attachment case might be settled and McKnight go out, put one Pearsall on guard to notify him, so that he might then take possession.

On January 14, 1871, McKnight removed from the store goods of the value of five thousand and forty-nine dollars and sixty-four cents. Pearsall informed Schmitz of the removal. This was previous to February 24, 1871. Plaintiff’s execution was placed in Schmitz’s hands to be levied February 1, 1871. It does not appear that Schmitz was informed of the value of the goods removed, or to what place they were taken. It was his duty to use due diligence to find property to pay the three executions.

The liability of the defendant depends upon the conduct of his deputy in respect to these goods.

It was considered by the learned judge at the trial, that if the goods were held regularly and in compliance with law under the attachment, the defendant’s deputy had no power to seize or take possession of them, or any part of them. This question was fully discussed at the argument, but in the view here taken of the case it will not be necessary to consider it.

It is difficult to say, that when an attachment has been levied on the property oí a defendant, a sheriff into whose charge executions come to be levied on the same defendant’s property, owes no duties to the plaintiffs in respect to their enforcement. The property may be, as is claimed, in the custody of the law, and not liable to be taken by another execution in the hands of a different officer, yet, can there .not be circumstances that call on the sheriff to exercise a reasonable care and diligence in the matter ?

For instance, in the present case, where an attachment was issued for three thousand dollars to be levied and used in the interest of E. P. Sanger & Co., with the knowledge of Algeo, as the court considered there was some reason for believing if Schmitz’s testimony was to be relied on, and where the assets of E. P. Sanger and Co. amounted to between eighty thousand dollars and ninety thousand dollars, and the sheriff’s deputy, Schmitz, holding the executions, was notified that a part of the goods claimed to be seized under the attachment, were removed in a concealed and surreptitious manner by their custodian, it is very difficult to hold that the sheriff did not owe the duty to the plaintiff of asking the watchman, Pearsall, who informed him of it, what information or knowledge he had about their removal, or of making common inquiries for persons or c.arts likely to remove that large amount of goods, or of asking to look at the warrant of attachment, or of applying to Sheriff' O’Brien himself about the removal, or of calling upon him to release from the levy of the attachment all goods beyond what was necessary to secure the payment of the three thousand dollars and sheriff’s fees.

A proper regard for the administration of justice, has always led courts to inflexibly require the exercise of diligence and fidelity in the execution of process, from all officers to whom the law confides it for execution. Upon the officers charged with the execution of process, from the highest to the lowest, the law confers great powers, and extends to them the amplest protection consistent with the proper discharge of their important duties.

The evidence shows that the deputy Schmitz, omitted to make those inquiries in reference to the goods removed, most likely to afford him information about them. They were not taken from the city, and there does not appear to have been any substantial reason why he did not learn where they were. It is true, Schmitz testifies he asked the plaintiff’s attorney what had become of the goods, and also McKnight and his man and one of the firm of E. P. Sanger & Co. The plaintiff’s attorney, of course, did not know, and the member of the firm of Sanger & Co., and McKnight’s man, refused to answer, and referred him to McKnight, who amply satisfied the deputy’s anxiety and diligence in the matter, by declining to give him any information on the subject.

After this weak and brief investigation, the defendant’s deputy remained tranquil, communicating in no way to the plaintiff’s attorney the very suspicious features o f the transaction apparent upon its face, and and not acting himself or pushing any further inquiries, or taking any of those steps that would in the exercise of common and ordinary care and diligence have brought to his knowledge property of E. P. Sanger & Co., in this county, of the value of thirteen thousand three hundred and eighty-eight dollars and eighty-nine cents, being more than enough to pay off the attachment and the three executions, all of which amounted to thirteen thousand three hundred and sixty-three dollars and eighty-one cents, including the present plaintiff’s. There was an entire omission on the part of the defendant to give information to the plaintiff of this manifestly excessive levy, so that he might be enabled to seek relief, nor did the defendant’s deputy make any demand on sheriff O’Brien, or apply even to have some part of the property relieved from the attachment.

On February 24, 1871, proceedings in bankruptcy were taken against E. P. Sanger & Co., and under these the sheriff was allowed to sell the goods levied upon in the store in Broome-street. These realized eight thousand two hundred and thirty-nine dollars and twenty-five cents. The goods that were surreptitiously removed from the store were sold for five thousand and forty-nine dollars and sixty-four cents. The attachment for the three thousand dollars was dissolved by the bankruptcy proceedings, and the two executions in favor of The Tenth National Bank were set aside by the United States circuit court as void, on the ground that the bank had reasonable cause to believe E. P. Sanger & Co. were insolvent at the time of' the levy. The' defendant returned the plaintiff’s execution unsatisfied. All the property of E. P. Sanger & Co. passed into the custody of the marshal in. bankruptcy while the defendant held the execution, yet he made no claim under it, and gave no notice to the plaintiff, so that he could indemnify the defendant, or make a claim himself in the bankruptcy court.

It is idle to speculate, as to what would have been the fate of the plaintiff’s execution and judgment under the bankruptcy proceeding. There is every reason, from the proofs and the recent decisions, to be lieve they would have been sustained, and it was for the assignee in bankruptcy, and not the defendant, to raise the objection.

Upon considering the questions raised by the defendant, it seems to be clearly settled by the adjudications-of the courts, and as absolutely necessary for the proper administration of justice, that a sheriff to whom... an execution is issued, is bound to use all reasonable-endeavors to execute the process of the law, in the most effectual manner. As a mere agent he would be' required to exercise at least the ordinary diligence that persons of common prudence are accustomed to use about their own business and affairs. Voluntary ignorance, or that which arises from a neglect to make proper search or inquiries, will not excuse him. His duty is to inquire of those who would probably be' acquainted with what the due execution of his process requires him to ascertain, and when he searches, to search in localities where it was probable he might find what he was called upon to find. When he holds various executions against the same defendants, it is a breach of duty for him to lend himself to one party to the wrongful prejudice of another, or to withhold information from one party of proceedings that may wrongfully deprive him of his remedy, and he has been held liable for negligence in not asking to see the warrant under which the former sheriff claimed to hold the goods (Tomlinson v Rowe, Hill & Den. Sup. 410; Henman v. Borden, 10 Wend. 369; Phil. Ev. C. & H. notes, p. 692, ed. 1859; Warmoll v. Young, 5 Barn. & Cress. 660; Lovick v. Crowder, 8 Id. 132; Dean v. Macknamara, 5 Dowl. & Ryl. 95).

Applying these rules to the conduct of the-defendant’s deputy with the plaintiff’s execution, it is apparent that he was guilty of neglect, and that there was a failure to exercise ordinary diligence, and that by his omission to take proper steps and to make proper inquiries, and of the persons likely to know, and also by his failure to notify the plaintiff of the proceedings in bankruptcy, so that he could make his claim in the bankruptcy court, the plaintiff lost the benefit of his execution. There was that failure of diligence on the part of the defendant that entitles the plaintiff to recover against him, and the judgment appealed from should be affirmed, with costs.

We think, however, there are questions of law involved, • which ought to be reviewed in the court of .appeals. We will, therefore, enter an order under Laws of 1874, ch. 322, to that effect, if desired by the appellant.

Monell, Ch. J. (concurring).

I concur in affirming the judgment, and in the entering of the order above mentioned.


author: By the Court. — Curtis, J.

text:
    ELISHA D. WHITNEY, Plaintiff, v. THE MAYOR, ALDERMEN, and COMMONALTY OF THE CITY OF NEW YORK, Dependants.
    I.—EMPLOYEE OP MUNICIPAL CORPORATION.
    1. Action fob his salary, what not a defense to.
    1. Absence.

      a. When his duties do not absolutely require his presence evei’y day at the office of another officer of the corporation, Ms omission to he present on numerous days (his attendance on them not being necessary to the faithful discharge of his duties), forms no defense to an actionforhis salary.'
    H.—TRIAL.
    1. Proposition of law, erroneous.

      a. When not cause for reversal.

    1. When the judge at the trial lays down a proposition of law, the converse of which, if charged, would not have called for or justified any different determination of the case than that arrived at, and ought not in law: to any way affect the determination, it is unnecessary, on appeal, to consider whether the proposition is correct or not; the proposition being immaterial, its error (if it be erroneous) presents no cause for reversal.

      Before Freedman, Curtis, and Speir, JJ.

      Decided February 1, 1875.
    Exceptions ordered to be heard in the first instance at the general term.

      E. Delafield Smith, for defendants.

      R. H. Strahan, for plaintiff.
   The facts sufficiently appear in the opinion.

By the Court. — Curtis, J.

The plaintiff sues to recover for five months’ services by one Riordan, his assignor, as assistant inspector in the, department of finance of the city of New York. Riordan’s salary was two thousand dollars per annum, and he was duly appointed to the office. The plaintiff’s assignor testifies that he went every day to the comptroller’s office during this period, but that his official duties were to inspect sewers, street paving, piers, and other work being performed for the city, and that he duly attended to all such duties. The only evidence claimed to be in conflict with this, is the testimony of an employee in the comptroller’s office, that plaintiff’s assignor was «absent therefrom a number of days during the five months, as appears by the witness’s memoranda. The witness at first declined to swear that he himself was present every day, and actually observed the absence, but on referring to his book he did so.

There was no evidence that the duties of assistant inspector required Riordan’s presence every day in the comptroller’s office, or that he failed to perform his duty, or was absent from the comptroller’s office negligently, or unnecessarily.

After the parties rested, the defendants’ counsel asked leave to go to the jury on the question of the performance of duty, which was denied, and the defendants excepted.

Thereupon the defendants’ counsel requested the court to charge the jury that under the evidence the defendants are entitled to a deduction from the amount of the claim, by reason of the absence of the plaintiff, which was denied, and the defendants excepted.

The defendants also asked the court to submit to. the jury the question whether or not the defendants are not entitled to have deductions made from the plaintiff’s claim, on account of Riordan’s absence from duty, which was denied, and the defendants excepted.

The court directed a verdict for the plaintiff for one thousand and nine dollars and twenty-one cents, and the defendants’ counsel excepted.

There was no question of the performance of duty, raised by the evidence, and there were no absence shown that were inconsistent with its performance; there was nothing to go to the jury, and the court properly directed a verdict for the plaintiff, and declined to charge the jury and submit questions as requested by the defendants’ counsel.

It is stated in the case, that the court ruled that this being a salaried office, where the salary is fixed by law, the officer is entitled to his salary, not withstanding he fails to perform any duty, as long as he is continued in the office, and the defendants excepted to the ruling.

This was merely a legal proposition advanced by the court, and not based on any evidence of a failure to perform official duty, and though designated in the-case as a.ruling of the court, simply presents a question that does not arise in the controversy, and the-determination of which, in whatever way, did not and could not, affect or prejudice the defendants, and which, in view of the uncontradicted evidence of due performance of duty, it is unnecessary to consider.

Defendants’ exceptions should be overruled, aud judgment ordered for plaintiff on the verdict, with costs.

Freedman and Speir, JJ., concurred.