text:
    JAMES BELLINGER and MARCUS BELLINGER, Plaintiffs, v. EDWARD BENTLEY and NELSON C. DUNHAM, Defendants.

      Officers of corporation,—when personally bound by contract entered into in its behalf.

    The defendants, who were trustees of the Little Utica Cheese Manufacturing Company, and authorized to transact business in its behalf, entered into an agreement with the plaintiffs, whereby the latter agreed to manufacture cheese at the factory of the company, at a specified price, upon certain terms and conditions, in said agreement contained. The defendants were described in the body of the agreement as the trustees of the company, but it was signed by them individually. This action was brought by the plaintiffs to recover for a breach of the contract. Held, that they were not entitled to recover; that the contract was, in fact and in legal effect, the contract of the company, and that the defendants were not personally liable thereon.
    The cases of Bush v. Cole (28 N. Y., 269) and Pumpelly v. Phelps (40 id., 67) distinguished.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term.
    This action was brought to recover a balance, alleged to be due from defendants, for cheese manufactured and accepted by them, under an agreement, of which the following is a copy:
    “An article of agreement made and entered into this 20th of April, 1870, between Edward Bentley, Horace Butler and N. 0. Dunham, trustees of the Little Utica Cheese Manufacturing Company, the parties of the first part, and James Bellinger and Marcus Bellinger, of Lysander, Onondaga county, N. Y., the parties of the second part, witnesseth: The parties of the first part agree with the parties of the second part to manufacture and make cheese at the aforesaid factory during the season of making cheese in 1870, and the parties of the second part agree to do all the work and furnish all the material for making cheese and boxes for $1.50 per hundred for the make in said factory, and to make good number one merchantable cheese; the parties of the first part agree that the patrons of said factory shall furnish the milk two or one time per day in good order, except those that wish to keep their milk home on Sunday. The parties of the first part agree to put said factory in good running order, and furnish sufficient amount of water and sufficient amount of ice in the ice-house for the season that is required for the season of running factory. The parties of the second part is to have the privilege of sending all milk that does not come to said factory in good order for making cheese home. The parties of the first part are to pay the parties of the second part, after each sale of said cheese, and get the returns; and the parties of the second part are to take care of said cheese until it is thirty days old, and take care of said cheese twenty days after said factory closes. Said factory to commence on the second day of May, and run the six months, or longer, if the parties of the first part wish to have it run. The parties of the second part are to' feed the hogs and help box the cheese in the agreement. Cheese to be made on an average of nine inches high. In witness whereof the parties have hereunto set their hands the day and year first above written.
    EDWARD BENTLEY.
    N. C. DUNHAM.
    JAMES BELLINGER.
    reMSfl M. R. BELLINGER.”
    The defendants and one Horace Butler, were, diming the year 1810, trustees of the Little Utica Cheese Manufacturing Company, an association, formed under the general laws of this State for the purpose of manufacturing cheese; and they had, as such trustees, authority to manage all the business pertaining to the company.
    It appeared upon the trial, that the plaintiff, James Bellinger, was a stockholder in the company in 1870, and that the premises upon which the factory of the company was situated, were leased to it by him.
    At the conclusion of the plaintiff’s evidence, the defendants moved for a nonsuit, on the ground that they had made the said agreement as trustees or agents of the company, having full authority to make the same, and that they were not personally liable thereon; and, on the same ground, at the close of the evidence, they requested the court to instruct the jury to find a verdict for them. The court denied the motion and refused to charge as requested, and the defendants duly excepted. The jury found a verdict for the plaintiffs, for the amount claimed. The exceptions were ordered to be heard in the first instance at the General Term.

      D. Pratt, for the plaintiffs.

      Sedgwicks, Kennedy da Tracy, for the defendants.
   E. Darwin Smith, J.:

The motion made at the Circuit for a nonsuit, should, I think, have prevailed.

The contract upon which the action was brought, was, in fact and in legal effect, the contract of the Little Utica Cheese Manufacturing Company. It purports to be made by the trustees of such "corporation, who, the proofs show, were clearly fully authorized to make it in behalf of the corporation. The defendants describe themselves as such trustees. The contract is for the benefit of the corporation upon its face. It stipulates for the use of the corporate property, the cheese factory, by the plaintiffs, in the manufacture of cheese—the particular business of said corporation—in the factory of said company. The plaintiff agreed to manufacture and make cheese at the said factory, during the season of making cheese in 1870. The proofs show that the affairs of said corporation were to be managed by three trustees, and that the trustees, named in the said agreement, were such trustees for the year 1870, and two of them were authorized by the by-laws to constitute a quorum for the transaction of business, and two of them, in fact, signed the agreement. This made it a valid contract of the corporation. The plaintiffs knew that the defendants were contracting for the corporation; one of them was a stockholder and the other his son. The factory was on the land of the elder Bellinger, one of the plaintiffs, and was leased to the corporation by him for the use of such factory, and he was a stockholder in said company. There is nothing in the contract or circumstances, indicating that the defendants had any private interest in said factory, or in the business of making cheese therein, or in said contract, any more than the other stockholders of said company, or that they intended to bind themselves individually,' They made a clear, plain, palpable contract in behalf of said company, and for its sole benefit, and they had full authority to make such contract; and the said corporation could clearly have been sued on such contract, as binding upon it. If the defendants had made and signed this contract without authority to do so, they would doubtless have been personally liable on the contract, within the-cases of Bush v. Cole, Pumpelly v. Phelps, and numerous other cases. But, when officers or other agents contract for a corporation, and have full authority to do so, and the work to be done, or the property purchased, is for the exclusive benefit of the corporation, and that is known at the time of the making of the contract, the ■ agent is not bound personally, unless he binds himself by some particular, personal contract, or fails to make a contract binding upon his principal.

In Randall v. Van Vechten, the principal was held liable in assumpsit, on the contract, made by persons acting as a committee of the city, who signed it with their private seals, as was the case in Haight v. Sohlar, where the persons, making the contract, sighed it with their seals, as a building committee. The same principle is asserted in Worrall v. Munn, and numerous cases there cited, in asserting the same rule, and the case of Randall v. Van Vechten approved, as it is, also, in Dubois v. Delaware Company.

In this case, it appears that • the corporation ratified their contract, and made payments to the plaintiff under it, to the amount of $1,071.80, leaving due the plaintiff, a balance of only $250, for the cheese manufactured by them at such factory during the season.

In Bush v. Cole, and Pumpelly v. Phelps, the principal was unknown to the parties contracted with. In Bush v. Cole, the opinion stated that the defendants signed the contract as the agents of an undisclosed principal, and, as they did so without authority, were personally liable as the contracting parties. In Pumpelly v. Phelps, the contract was signed by the defendant, simply as trustee, and the case states that there was nothing in the contract, to intimate, of whom he was trustee. But in this case, on the contrary, the defendants describe themselves as trustees, etc., in the body of the contract, and state expressly the name of the corporation of which they are trustees, and for which they are acting.

I think the defendants fully showed at the Circuit, that the contract they made, was binding on such corporation, and that they had full authority to make it, and that it was a valid contract of such corporation, and that they were therefore not individually liable thereon.

The verdict should, therefore, be set aside, and a new trial granted, with costs to abide the event.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Mullin', J., not voting.

So ordered.

       28 N. Y., 269.

       40 id., 67.

         19 Johnson, 60.

       1 Selden, 241.

       4 Wend., 288.

        Supra.


source: Caselaw Access Project

author: E. Darwin Smith, J. :

license: Public Domain

text:
    SEWARD F. GOULD, Respondent, v. JOHN R. MARSH, Appellant.

      Chattel mortgage—right of assignee of—promissory note secured by — rights of holder of.

    A bona fide purchaser, before maturity, of a promissory note, secured by a chattel mortgage, takes the mortgage as he takes the note, free from any equities which existed in favor of third parties while it was held by the mortgagee.

      Carpenter v. Longan (16 Wall., 271) followed.
    Appeal fl-om a judgment in favor of the plaintiff, entered upon the report of a referee.
    On the 20th day of May, 1870, James Morton, then being the owner of the property described in the complaint, consisting of the printing-presses, etc., of the Avon Journal printing-office, sold and delivered the same to Jane Cotter, in consideration of $3,000, on which purchase she paid, on or about that day, $500, and for a further payment she gave to Morton her note of $500, dated that day, indorsed by James R. Cotter, her son and agent, payable sixty days after date. Morton indorsed the note and attempted to get it discounted, but failed to do so. James R. Cotter, claiming to be the agent and attorney, in fact, of his mother, on the 25th of May, 1870, procured the indorsement of John R. Marsh, the defendant, upon said note, and, to secure him for the liability thus assumed, he executed, as agent for his mother, a chattel mortgage upon said property. This mortgage was delivered by the defendant to Morton, with a request to file it in the town clerk’s office, which he agreed to do. Morton did not file it, but retained it in his possession until about September 10, 1870, when Marsh, learning it was not filed, procured it of Morton and had it filed in the proper town clerk’s office.
    On the 10th of June, 1870, Mrs. Cotter gave to Morton three promissory notes for the aggregate sum of $2,000, the residue of the purchase-price of said property, payable, respectively, January 20, 1871, July 20, 1871, and June 20, 1872, and a chattel mortgage on the same property to secure their payment, which was filed on the next day in the town clerk’s office. A few days after the execution of these notes and the mortgage, the first of the notes was presented tb the plaintiff, a banker at Avon, for discount, by Morton, who informed him it was secured by a mortgage which was a first lien upon the property. After examining the records, the plaintiff discounted the note.
    On the 25th of October, 1870, Morton assigned the other two notes and the mortgages to one R. P. Flower, who subsequently assigned them to the plaintiff. The note indorsed by the defendant went to judgment, and nothing was ever paid upon it.
    On the 17th of February, 1871, plaintiff took possession of the property, by virtue of the mortgage to Morton, and advertised it for sale. The sale was postponed to the fourth of March, when it took place, and the property was bid off by the plaintiff.
    The defendant advertised the property under his mortgage, and sold it on the first of March, purchasing the property himself.
    Subsequent to the sale by the plaintiff, and his purchase of the property, he demanded it of the defendant, who refused to deliver it, and this action was brought to recover its possession, and it was delivered to him by the sheriff.

      M A. Rash, for the appellant.
    The lien of the plaintiff’s mortgage was subsequent -to that of the defendant. (Van Heusen v. Radcliff, 17 N. Y., 580; Tiffany v. Warren, 37 Barb., 571; Wiles v. Clapp, 41 Barb., 645; Thompson v. Van Vechten, 27 N. Y., 570; Woodburn v. Chamberlin, 17 Barb., 452; Dickerson v. Tillinghast, 4 Paige, 220.) Plaintiff’s rights were no greater than those of Morton. (Schafer v. Reilly, 50 N. Y., 61; Bush v. Lathrop, 22 id., 535; Mason v. Lord, 40 id., 476.)
    «TóAí A. Vcmderlip, for the respondent,
    cited Green v. Hart (1 John., 580); Langdon v. Buell (9 Wend., 80); Jackson v. Blodget (5 Cow., 202); Rose v. Baker (13 Barb., 232); Parmelee v. Dann (23 id., 461); Freeman v. Auld (44 N. Y., 57); Carpenter v. Longan (16 Wall., 271).
   E. Darwin Smith, J. :

By the express terms of the statute, the defendant’s mortgage, before it was filed, was absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith.

The notice to Morton, of the defendant’s mortgage, and his fraud, in keeping possession of it and not putting it upon file, according to his agreement and the trust confided to him, till after the mortgage to himself was taken and filed, preclude him from the rights of a subsequent mortgagee or purchaser in good faith.

The single question remains, whether the plaintiff, as the assignee of the second mortgage, acquired any higher rights from Morton, than he possessed by the transfer of the promissory notes, which such second mortgage was given to secure.

If the said mortgage was regarded by itself, or as a security for a bond, or any other non-negotiable chose in action, no question would remain open to discussion on this point, since the decision of Bush v. Lathrop, affirmed, as it has been, in Schafer v. Reilly, Sheldon v. Edwards and Thompson v. Van Vechten, and other cases.

But in the case of Schafer v. Reilly, supra, Judge Allen, as does Judge Denio in Bush v. Lathrop, recognizes the fact, that a purchaser of a chose in action must abide by the ease of the person from whom he bought. The rule admits of exceptions, “ adopted from motives of public policy,” as -Judge Allen stated it, “ either to promote the negotiability of commercial instruments, or to prevent fraud.”

Within this exception, I think the plaintiff is entitled to the rights of a bona fide purchaser, in respect to said mortgage, as the holder of the. promissory note for $666.68, dated May 10th, and due June 1st, 1871, discounted and received by him at his bank, in the ordinary course of business, in the month of June, 1870, and before the defendant’s mortgage was placed on file.

The transfer of said note was, in law and equity, an assignment or transfer of the mortgage given to secure it, to the extent of the amount of said note. The notes which said mortgage was given to secure, constituted the debt, and the mortgage was the incident, and, by presumption of law, passed with the transfer of the debt.

A mortgagee hs, pro tanto a purchaser, and the assignee of a mortgage, without notice, is on the same footing with a bona fide mortgagee. In such cases, the purchaser looks to, and has a right to rely upon, the record, and if that shows no lien or incumbrances prior to the mortgage, he has a right to trust to the protection of the statute.

The referee asserted these views, in accordance with the decision of the Supreme Court of the United States, in Carpenter v. Longan, where the rights in respect to mortgages, given to secure negotiable instruments, are fully discussed and very carefully considered, and the doctrine asserted, that the purchaser of a negotiable security before its .maturity, secured by a mortgage, takes the mortgage, as he takes the note, free from the objections to which it was liable in the hands of the mortgagees. That the note and mortgage are inseparable; the former as essential, the latter as the incident. This view, it seems to me, is eminently sound, and I think unanswerable. The referee held in accordance with this case, and his judgment should be affirmed.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

       22 N. Y., 535.

       50 N. Y., 61.

         35 N. Y., 279.

       27 N. Y., 568.

       Pierce v. Faunce, 47 Maine, 507.

       16 Wallace, 271.


author: E. Daewht Smith, J.:

text:
    SIDNEY A. DAY, Plaintiff, v. SAMUEL CROSSMAN and others, Commissioners of Highways, Defendants.

      Commissioners of highways — negligence of.', in repairing bridges — Onus of proving possession of funds by them.

    The defendants, as commissioners of highways, had, several weeks prior to July 17,1873, caused the plank covering to be removed from a bridge which had become unsafe, and had drawn a quantity of stone to the place, for the purpose of repairing the bridge, the openings of which they had closed. On the east side of the bridge, good approaches had been graded by the defendants, from the bed of the creek each way. On the seventeenth of July, the plaintiff, who was well acquainted with the situation of the bridge and creek, attempted, on a dark night, to cross the stream, which was very much swollen by a sudden and severe storm, and in so doing his horse was drowned. In an action brought by him to recover the value of the horse, held, that he was properly nonsuited; that he was guilty of negligence in attempting to cross the stream under the circumstances, and that his injury did not result from the omission of the defendant to repair the bridge, in such a sense, and with such intimacy of connection, as to render the defendants liable therefor.
    At the trial, the court held that the defendants could only be liable upon proof that there were funds in their hands with which to repair the bridge, and non-suited the plaintiff, because no such proof had been given.

      Semble. That it was too late for the defendants to raise that point; that the presumption of the possession of funds was against them, upon the ground that they had recognized their duty to repair the bridge by commencing so to do; and upon the ground that the onus was upon them to show that they had no funds.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term.
    The plaintiff sued to recover for the loss of a horse, drowned in a stream crossing the highway in the town of Pavilion.
    Several weeks prior to the occurrence, which took place July 17th, 1873, the defendants, who were commissioners of highways in that town, caused the plank covering to be removed from one of the bridges, which had become so worn and decayed as to be unsafe. The defendants had drawn a quantity of stone to the ground, for the purpose of repairing the abutments of the bridge, and with these had secured the approaches to it, so that people could not drive into the opening. On the east of the bridge, and within the highway, good approaches had been graded by the defendants, from the bed of the creek each way, so that teams could easily and safely cross the run. ' On the 17th of July, 1873, the plaintiff crossed the creek in a one horse wagon about four o’clock, p. m. At this time the brook was dry. At six o’clock that afternoon, a severe rain storm came on, with thunder and lightning, which lasted two or three hours. The run was flooded, its banks overflowed, and the current was very swift. At about ten o’clock, at which time it was very dark, plaintiff attempted to cross the stream. The current swept the wagon down against the bridge abutment, took the horse off his feet, and he was drowned.
    The other facts are stated in the opinion.

      M. R. Peck, for the plaintiff.

      R. Ballard, for the defendants.
   E. Daewht Smith, J.:

The motion for a nonsuit, at the close of the plaintiff’s case, was made upon three grounds, then stated. First, on the ground that the plaintiff had shown no negligence on the part of the defendants, in the discharge of their duty. Second, on the ground that the plaintiff was guilty of negligence in driving into the stream at the time of night he did, it being a dark night, and the stream flooded, as it was, which negligence contributed to the injury. And third, that if the defendants could in any way be liable for negligence in the discharge of their duty, it could only be upon proof that there were funds in their hands, appropriated for the purpose of making repairs of roads and bridges; and no such proof had been given. The circuit judge granted the nonsuit, on the last mentioned ground. The particular ground upon which the learned judge granted the nonsuit, I think, is in accordance with the cases of Garlinghouse v. Jacobs, Robinson v. Chamberlain, and Hines v. The City of Lockport.

But, if this action could otherwise be maintained, I should be inclined to hold, on this point, that it was too late for the defendants to raise that point, or that the presumption of the possession of funds was against them, upon the ground that they had recognized their duty to repair the said bridge, practically, by taking off the plank upon it, and entering upon the work of repairing it, by getting out the necessary stones and drawing them upon the ground for the abutments of a new bridge, or upon the ground that the onus was upon the- defendants to show that they had no funds.

If the defendants were guilty of unreasonable delay in completing the work, so begun upon said bridge, they were doubtless liable to indictment for such breach of duty, but for a mere omission, for a brief period, to fulfill a public duty, they are clearly not liable to individuals, except where some special injury has resulted to them, from such neglect or omission. The injury must be proximate upon such neglect. In Hover v. Barkhoof, the injury resulted from the falling in, or breaking down, of a bridge over the stream, negligently left out of repair and unsafe. In Garlinghouse v. Jacobs, the damages were caused, also, by the breaking down of the highway bridge, when the plaintiff was crossing it. In Adsit v. Brady, the defendant negligently left a boat sunk in the canal, so that plaintiff’s boat ran against it and was injured. In Weet v. The Trustees of Brockport, the defendants left a pit-hole open in the sidewalk, with no guard about it, or light to enable persons, passing upon the street, to see it, and the plaintiff ran into it in the night time ; and, in all the cases I have seen, where public officers have been held liable for neglect, which consisted in the mere passive omission of duty, the action has been based upon some direct injury, suffered and resulting from such neglect. In this case, the plaintiff’s injury was not proximate, or consequent upon the neglect of defendants to repair the bridge. It was the immediate result of his own negligence in attempting, in a dark night, to ford the stream, rapidly swollen by a sudden and severe storm, where it was otherwise ordinarily safe to drive, and where he had passed, safely a few hours before, and knew intimately the ground and the situation of the highway, the bridge and the creek at that place. His injury did not result from the omission of the defendants to repair the bridge in question, in such a sense, and with such intimacy of connection with the cause of neglect alleged, as to furnish the basis for a cause of action. The nonsuit, we think, might properly have been granted upon either the first or second grounds upon which it was moved, and, the judgment being right, it should not be reversed upon an erroneous ground or reason. Judges who decide correctly, are not required to give good, or the best reasons for their decisions, and particularly where other proper grounds are, at the same time, presented for their consideration.

A new trial should be denied.

Present—Mullin, P. J., Smith and Gilbert, JJ.

New trial denied.

       29 N. Y., 297.

       34 N. Y., 389.

         5 Lansing, 16.

       Ellis v. The Village of Lowville, 7 Lansing, 434.

       44 N. Y., 113.

       4 Hill, 630.

       16 N. Y., 161.

         Stevens v. Hyde, 32 Barb., 171; Beals v. Home In. Co., 36 Barb., 614; affirmed, 36 N. Y., 522.


author: Gilbert, J.:

text:
    NORMAN H. GALUSHA, Appellant, v. THE FLOUR CITY NATIONAL BANK and EDWIN M. LEWIS, Respondents.

      Promissory note—injunction to restrain transfer of— Service by publication.

    This action was brought to restrain the defendant, the bank, from returning a promissory note, made by the plaintiff, to the defendant Lewis, and by him sent to the bank for collection. The suit was commenced after the maturity and dishonor of the note. Lewis resided in Pennsylvania, and had never been served with process, or in any way appeared in the action. The complaint alleged that the note was obtained by fraud, that the consideration for which it was given had failed, and that, “if said note is permitted to be returned to said defendant Lewis, it will be a means of annoyance to the plaintiff; it may get into the hands of innocent parties, who will be defrauded thereby, and it may, and doubtless will, be used to injure the plaintiff in his credit and in his business.” Held (1.) That the plaintiff had a perfect defense at law. (2.) That the facts stated did not justify an apprehension that Lewis would make an improper use of the note, and that plaintiff was not called upon to protect third parties who might be defrauded by Lewis. (8.) That the action could not be maintained, for the reason that Lewis had not been served with process. (4.) That an order of the Special Term, dissolving a temporary injunction granted in the action, was proper and should be affirmed.

      Appeal from an order of the Special Term, dissolving a temporary injunction granted in the action by the county judge of Monroe county. The" facts are stated in the opinion.

      John Van Voorhis, for the appellant.

      Thomas 0. Montgomery, for the bank, respondent.
   Gilbert, J.:

The object of this suit is to restrain the defendant, bank, from returning a promissory note, made by the plaintiff, to the other defendant, from whom it received it, for the purpose of demanding and receiving payment thereof. The suit was commenced after the note fell due, and had been dishonored. Mr. Lewis, who' sent the note to the bank, resides in Pennsylvania, and has not been served with process, or in any wise appeared in the suit. The note forms part of the estate of a bankrupt, and is held by Mr. Lewis as a special receiver, he having been appointed such by the District Court of the United States, for the Eastern District of Pennsylvania. It is not shown that the title to the note has been vested in Mr. Lewis, or that he claims any ownership in it. The averments on the part of the plaintiff, are, that the note was obtained by fraud, and that the consideration for which it was given, has failed.

We think the action ought not to be maintained. The note being over due, the plaintiff has a perfect defense at law. There appears to be no reason, therefore, for his coming into a Court of Equity to protect his rights. No doubt, the jurisdiction invoked, may be exercised : but the granting of relief, in cases of this kind, is not by way of absolute right, but is a matter of sound discretion, to be exercised by the court as it thinks proper, according to the circumstances of each case. When it entertains jurisdiction of such cases, it is upon the principle, guia timet, or for fear that future injury or injustice might arise. The only allegation made by the plaintiff, on this subject, is, “ that if said note is permitted to be returned to said defendant, Lewis, it will be a means of annoyance to the plaintiff; it may get into the hands of innocent parties who will be defrauded thereby; and it may, and doubtless will, be used to injure the plaintiff in his credit and in his business.” This is quite insufficient, if not altogether frivolous.

No facts are stated, justifying an apprehension that Mr. Lewis will make any improper use of the note. He who 'gives a note, and does not pay it, must expect annoyance and injury to his credit, arising from those circumstances, even though payment was rightly refused; but they scarcely afford adequate cause for the interposition of the extraordinary powers of a Court of Equity. Nor is the plaintiff called upon to protect the innocent parties, who, he says, may purchase the note, and may thereby be defrauded. Hpon this ground, alone, we think the injunction was improperly granted, as a discovery is no longer needed or allowed, to enable a party to establish his defense at law.

It is also an insuperable objection to the continuance of the injunction, that jurisdiction of the person of Mr. Lewis, has not been acquired; and that, under the facts, as they now exist, cannot be obtained.

For obvious reasons, the fourth subdivision of section 135 of the Code, does not apply to the case. The third subdivision of that section, contains the only authority to make service upon Mr. Lewis, by publication, and the case has not been brought within it.

1. It does not appear that he has any property in this State, except the note in controversy.

2. That note does not belong to him; but has been only temporarily intrusted to his care by the District Court, as one of its officers or agents.

3. A note sent forward for collection, to be returned immediately, if not paid, is not within the purview of the statute.

The case then must proceed, if it proceed at all, against a mere agent, for the sole purpose of preventing his performance of a plain duty to his principal. We cannot sanction such a claim.

The motion to dissolve the injunction was regular. Although the county judge heard the parties before allowing it, it was still a preliminary order only, and was a proper subject of a motion to dissolve it, on bill and answer.

Without discussing the question of the power of the court to interfere with a receiver appointed in a foreign jurisdiction, therefore, we think the order appealed from must be affirmed.

Order affirmed.

       Mitchell v. Oakley, 7 Paige, 70 ; Crane v. Bunnell, 10 id., 341

       Haight v. Husted, 4 Abb., 348 ; S. C., 5 id., 170.


text:
    WILLIAM C. HODGE, Respondent, v. ALBERT R. SEXTON, Appellant.

      Wager—Property staked on a let—when title to, passes—Bona fidepwrehaser of— rights of.

    One Smith fraudulently induced the plaintiff to stake his watch and chain upon a bet made with him, which bet the plaintiff lost through the fraud and deceit of Smith and his confederates. The watch and chain were delivered to Smith by the stakeholder, and subsequently purchased by the defendant. In an action brought by the plaintiff to recover the watch and chain, held, that he was entitled to recover; that by the delivery of the watch and chain to the stakeholder, the plaintiff did not intend to part with his property in them; that no authority was conferred upon the stakeholder to deliver the property to Smith, unless the bet was fairly won by the latter; and that defendant acquired no better title than that possessed by his vendor.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought by plaintiff to recover possession of a watch and chain, of which he claimed to be the owner. The plaintiff bet the watch and chain against $100, with one Smith, upon a throw of dice, at the same time placing them in the hands of a stakeholder, to be delivered to the winner. The plantiff lost the bet, and the watch and chain were delivered to Smith.
    On the trial, the plaintiff testified that he “did not direct the stakeholder to deliver the watch and chain to Smith; ” that he “ did not say anything about it,” and that he “ never authorized these parties to let defendant have them.” The evidence showed a conspiracy upon the part of Smith and others to lure the plaintiff into making the bet, and that he was cheated in the transaction. The defendant, not knowing the manner in which Smith had obtained possession of the property, purchased it from him, paying therefor $135.

      The referee made a report in favor of the plaintiff, and judgment was entered thereon, awarding to him the possession of the watch and chain, or $300, with interest, and six cents damages.
    From this judgment the defendant appealed.

      William Spargur, for the appellant.

      William H. Gurney, for the respondent.
   Gilbert, J.:

The only ground, on which it is claimed that this judgment should be reversed, is, that the plaintiff voluntarily parted with his property, and the defendant is a bona fide purchaser. We think the defendant cannot be deemed a bona fide purchaser, but that, even if he should be so regarded, no title to the goods in controversy passed to his vendor, and that, consequently, he got none by his purchase. It is very evident that the defendant did not intend to part with his property, but merely to permit the stakeholder to take possession of it, temporarily. If he had won the bet, the possession would have been resumed by him, and no authority to deliver the property over to his adversary, can be implied, unless the bet was fairly won by the latter. That the transaction was a gross cheat on the part of the winner, and was the result of a conspiracy between him and his confederates, admits of no question. A man cannot be divested of the title to his property by such means, and even an innocent purchaser from one who so obtains it, is not entitled to protection against the claim of the true owner. The cases where such protection has been afforded, rest upon the principle that when one has been induced to part with his property by fraud, the transaction is void, or voidable at his election. It is optional with him, either to affirm or rescind the contract. But such election must be exercised before the rights of third persons have intervened. In other words, the contract is valid until rescinded, and if, before it has been avoided, the goods have been sold to a bona fide purchaser, the latter'is entitled to protection. But this rule does not apply, unless it appears that the owner intended to transfer both the property in, and the possession of, the goods to the persons guilty of the fraud. If his intention was to deliver nothing more than the bare possession, there is no eontraet of sale, and the property does not pass.

The counsel for the respondent contends that the facts establish that the plaintiff’s property was stolen. There are cases which hold that when a man has been deprived of his property by means of a conspiracy to cheat him under color of a bet, and where the taking occurred under circumstances similar to those which exist in this case, it is larceny. Certainly the acts of the person, from whom the plaintiff purchased, and his confederates, involved the moral guilt of stealing, if they did not constitute the technical crime of larceny, But we prefer to put our decision of this case upon the ground that no title passed.

For the reasons stated, and, without considering the effect of the statute against betting and gaming upon the transactions in controversy, we think the judgment should be affirmed.

Judgment affirmed.

       Mowrey v. Walsh, 8 Cow., 238; Bassett v. Spofford, 45 N. Y., 388; Benj. on Sales, Bk. 3, Chap. 2, § 2.

       Roscoe Cr. Ev., 6th ed., 571, 575 ; Rex v. Robinson, R. & R. C. C., 413; People v. Jackson, 3 Park. Cr. R., 590.


text:
    WILLIAM E. MOORE, Appellant, v. NEWTON EASTMAN Respondent.

      Infants—contracts of—acts of—when sufficient to constitute a trespass.

    To render an infant, who has hired a horse, liable in an action of trespass, he must do some willful and positive act which amounts to an election on his part to disaffirm the contract; a bare neglect to protect the animal from injury, and to return it at the time agreed upon is not sufficient. If he willfully and intentionally injure the animal, an action of trespass will lie against him for the tort, but not if the injury complained of occurred in the act of driving the animal through his unskillfulness and want of knowledge, discretion and judgment.
    Appeal from a judgment in favor of the plaintiffi-entered upon the verdict of ,a jury.
    This action was brought to recover against the defendant in trespass, for an injury to a horse of the plaintiff. The answer denies the complaint, and sets up a contract of bailment and. infancy. Evidence was given on the part of the plaintiff, to show that he let the horse to the defendant for two days; that the horse was taken sick on the journey, and that such sickness was occasioned by over-driving. That the defendant, against the advice of the doctor and hotel keeper, drove the horse, while so sick, at a fast gait; and that shortly after the horse reached the plaintiff’s stable, he died from the effects of such over-driving.

      Holt <&, Hill, for the appellant.

      T. P. Grosvmor, for the respondent.
   Gilbert, J.:

The complaint avers a wrongful taking of the horse, by the defendant, and that, in consequence of his malicious, wicked and cruel treatment, the horse died. The defense is infancy, and that,k at the time the alleged wrongful acts were committed, the horse was in the possession of the defendant, by virtue of a contract of j bailment for hire, and that said wrongful acts occurred, solely, \ through the unskillfulness and want of judgment of the defendant, i and not from any intentional, or malicious, or willful act or wrong on his part. The question is, what proof is requisite to a recovery j upon such an issue. Acts, however aggravated, which merely establish a breach of the contract on the part of an infant, manifestly are insufficient. The plaintiff cannot convert anything that arises out of a contract with an infant, into a tort, and then seek to' enforce the contract, through the medium of an action ex delicto. There must be a tort, independent of the contract. The authorities all agree on this- principle. In Jennings v. Rundall, it was held, that when a boy hired a-horse, and injured it by immoderate driving, this was only a breach of contract, for which he was not liable. So, in Green v. Greenbank, the Court of Common Pleas, in England, held, that an infant was not liable to an action for falsely and fraudulently deceiving the plaintiff, in an exchange of horses, because the deceit was practiced in the course of the contract. The principle of these cases was unanimously approved by the late court for the correction of errors, in Campbell v. Stakes, which was an action of trespass for misusing a mare, hired by the defendant, who was an infant. It was held in that case, that a bare neglect to protect the animal from injury, and to return it at the time agreed upon, would not subject an infant to an action of trespass, but that the infant must do some willful and positive act, which amounts to an election on his part to disaffirm the contract; that if the infant willfully and intentionally injured the animal, an action of trespass would lie against him for the tort; but that if the injury complained of, occurred in the act of driving the animal, through the unskillfulness and want of knowledge, discretion and judgment of the infant, he would not be liable. The rule thus established, has not been changed in this State, to my knowledge, but, on the contrary, has been repeatedly recognized and approved. What then is the willful and positive act, which amounts to an election to disaffirm the contract ? Certainly, such an act cannot be predicated of a use of the animal in the course of the bailment, however excessive, unless the excess was such as to indicate that it was resorted to for a purpose beyond that for which the horse was hired. Nothing of that kind appears in this case. Instances of the kind of wrong that will make an infant liable, are not wanting in the adjudged cases: Burnard v. Haggis, where an infant hired a mare, on the terms that it was to be ridden on the road, and not over fences in the fields, and the infant lent it to a friend, who took it off the high road, and, in endeavoring to jump the animal over a fence, transfixed it on a stake and killed it; Towne v. Wiley, Homer v. Thwing, Lucas v. Trumbull, and Fish v. Ferris ; where the infant drove the horse further than the stipulated journey, or on a different one; and cases where an infant obtains goods by fraud, and then refuses to deliver them up on the demand of the party who has been defrauded, or where he has been intrusted with them for a special purpose, and has perverted them to another purpose, may be taken as examples. They are all consistent with, and at least furnish a negative confirmation of, the principle before alluded to, that a mere violation of a contract, though attended with tortious results, will not make the infant liable, but that, to have that effect, the act must be wholly tortious.

In the case before ns, taking the evidence on the part of the-plaintiff alone, the defendant is fairly chargeable with only two or three acts of immoderate driving of the horse, while performing the service for which he was hired, and with driving him when not in a fit condition to continue that service. There was no other, basis for the inference that the injury to the horse was positive or willful.

The question whether the injury was of that character, or was the result of indiscretion, or want of skill and judgment on the part of the defendant, was fairly submitted to the jury, and we think their verdict was correct.

Several requests were made to the judge to modify his charge. One of them was, that if the jury should find the horse was over-driven, and in a cruel and unusual manner, they might infer the intent from such cruel driving. This was properly refused, because there was no evidence of such cruelty. The other requests, though variant in form, presented merely the converse of the propositions embraced in the judge’s charge, and, of course, were properly refused.

The judgment must be affirmed.

Judgment affirmed.

       8 T. R., 335.

       2 March, 485.

       2 Wend., 137.

       The People v. Kendall, 25 Wend., 399 ; Munger v. Hess, 28 Barb., 75; Robbins v. Mount, 4 Robt., 553.

       14 C. B, N. S.,45.

       23 Vt., 355.

       3 Pick., 492.

       15 Gray, 307.

       5 Duer, 49.


text:
    DANIEL W. POWERS, Respondent, v. JOHN M. FRENCH, Jr., Impleaded with MARY FRENCH, Appellant.

      Promissory note—Accommodation indorsor—bona fide purchaser of note indorsed, by— Consideration of, presumed.—Pleadings—effect of admissions in.

    A party having notice of the fact that a note has upon it an accommodation indorser, and who does not part with anything upon the faith of its transfer to him, stands in no better position than the maker, and cannot recover thereon against the indorser.
    The distinction between a promissory note and other contracts, is, that in the former a consideration will be presumed, and in the latter it must be proved.
    An admission in the answer, of the making, indorsement and transfer of a promissory note, does not preclude the defendant from showing that there was no consideration; that the indorsement was lent; and that the consideration paid by the plaintiff was in fact the money of the party to whom the indorsement was lent.
    An appeal by the defendant from a judgment entered on a verdict at the Monroe Circuit.
    This action was brought to recover the amount of a promissory note, alleged in the complaint to have been made by the defendant, Mary French, and delivered by her to the defendant John M. French, Jr., “ who thereupon indorsed the same and sold and delivered the same, for a valuable consideration, to the plaintiff.”
    The defendant John M. French, alone answered. He set up in his answer, and offered to prove on the trial, that on the 27th day of May, 1865, the plaintiff had in his hands $2,600 belonging to John M. French, Sr., which was held by him in trust for the benefit of said French, Sr.; that upon that day said French, Sr., applied for the payment of said sum of $2,600 ; that the plaintiff stated that for certain reasons he desired the payment to be in the form of a loan to said French, Sr., and suggested that he procure the promissory note for that amount of his, said French senior’s, wife, and the indorsement of his son,- John M. French, Jr.; that accordingly, the said Mary French, wife of French, senior, made the note mentioned and described in the complaint, at his request, and the defendant, John M. French, Jr., indorsed it at his request, and that he then presented it to the plaintiff, who delivered to him the said sum of $2,600, which he had in his hands in trust, and that the note had no other or different consideration. The answer contained no further matter, nor any denial of the allegations of the complaint. The court excluded the evidence offered, and decided that the answer did not set up a sufficient defense, and directed a verdict for the plaintiff.

      W. F. Qogswell, for the appellant.

      George F. Banforth, for the respondent.
   Gilbert, J.:

Construing the defendant’s answer liberally, as we are required to do, it sets up the defense that the note in suit was made and indorsed without any consideration, but at the request, and solely for the accommodation, of the defendant’s father; that all this was done upon the suggestion of-the plaintiff, and that all the consideration which the plaintiff paid for the note, was the father’s own money. For the purposes of this appeal, the answer must be taken as true. Unless, then, he, who borrows a promissory note, can enforce payment of it against the lender, it is difficult to perceive why the facts stated would not defeat the action. The plaintiff is in no sense a bona fide holder. He had notice of the purpose for which the note was made and indorsed, and he parted with nothing upon the faith of the transfer thereof to him.

Under such circumstances, the plaintiff stands in no better position than the father would have occupied if he had retained the note, and given the plaintiff a voucher for the money which he received from the latter, in some other form. Want of consideration in a promissory note, will defeat a recovery, where the action is between the parties to it, or where it is brought by a transferree, affected with notice. The only distinction between promissory notes and other simple contracts, in this respect, is, that in the case of the former, unless the transaction be affected with fraud or the like, a consideration will be presumed until the contrary be shown; while in the case of the latter, it must in general affirmatively appear that there was a consideration therefor.

The defendant could not deny, and therefore had to admit, the making, indorsement and transfer of the note, as alleged in the complaint. His omission to deny those allegations, had that effect —• no more. Stretching the admission to the utmost, its only effect was, that the note, by its terms, imported a consideration, and that the defendant, by his indorsement in blank, sold and delivered it to the plaintiff for a valuable consideration. The allegations of the complaint related to nothing aliunde the written instrument. The admission of them proved nothing more than that which the law would have presumed from the production of the note, or from pleading it according to the legal effect of the contracts of the maker and indorser respectively. The allegation, respecting the sale and delivery of the note to the plaintiff, does not necessarily imply that such transfer was made directly by the defendant, and consequently does not involve an averment (contrary to the fact) that the consideration was .received by the defendant. So understood, the defense does not contravene the admission, but is merely one, sub modo, and is qualified by the facts stated in the answer.

Those facts were offered to be proved on the trial, and we think they would have established a complete defense, by showing that there was no consideration whatever for the note; that it was in fact lent to the elder French; and that, although a valuable consideration was nominally paid for it by the plaintiff, such consideration in fact proceeded from the elder French, and that the transaction was contrived by the plaintiff.

Taking the case as thus represented, there can be no pretense of a right of recovery against the plaintiff by the elder French, for the money received by the former, belonging to the latter. Those moneys were in fact paid by the plaintiff to the elder French, and the effort to make the transaction assume the form of a purchase of a void note, was simply nugatory.

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

Judgment reversed and a new trial granted, costs to abide the event. ■

       Code, § 159.

       2nd Gr. Ev., § 172 ; Story, Prom. Notes, § 181; Story, Bills, § 178; Byles, Bills, § 76, 3d ed.


text:
    MARY A. CODDING, Appellant, v. THOMAS WAMSLEY, Respondent.

      Contract—tíme, when of the essence of—Specific performance—reciprocity of obligation not necessary—Distinction between mutual obligations and those obligatory on one pcerty only.

    When the obligation to sell real estate rests on one party, and it is optional with the other party to purchase or not, a specific performance of the contract will not be decreed, if the party does not exercise his option within the time given him.
    Time will be deemed of the essence of a contract which gives a mere right of election to purchase real estate upon certain conditions.
    Appeal by plaintiff from a judgment entered on the report of a referee, dismissing the complaint in an action brought for the specific performance of a contract for the purchase of a house and lot in the city of Rochester. On the 1st day of April, 1871, the respondent, by written lease, demised and rented to the appellant a house and lot of land in Rochester, for one year, at the yearly rent of $1,200, to be paid monthly in advance. In. the instrument, it was further agreed and covenanted by said Wamsley, that at any time within three months from the date thereof, the appellant might become the purchaser and owner in fee of said lot of ground, for the price of $9,500, with interest, and all taxes, assessments, etc., levied or charged thereon. Of this sum, $3,000 were to be paid immediately at the expiration of the three months, $3,000 to be paid by assuming a bond and mortgage on the premises, and $3,000 to be paid within one year from the date of the instrument.
    The plaintiff paid the rent monthly in advance, up to and including November 1, 1871, and also paid taxes and insurance to the amount of $56.61. Nothing mor# was paid, nor did plaintiff assume the mortgage or offer to do so, or to pay any money, except in and by the complaint in this action, which was commenced in August, 1872, nor did she pay any taxes or assessments except those above mentioned.
    The defendant, after the expiration of the three months, expressed to plaintiff’s agent a willingness to receive the $3,000, but made no agreement to do so, and declined to extend the time for her to become the purchaser. In February, 1872, the plaintiff, by hér agent, told the defendant to have the papers made out, that the money was ready. The defendant refused to convey the property at the price specified in the contract.

      JEL. R. Selden, for the appellant.

      Damson & Ohumasero, for the respondent.
   Gilbert, J.:

At one time, a purchaser was not allowed to maintain a bill against the seller, for the specific performance of a contract to. sell lands, unless he himself was bound by the same contract to purchase. Reciprocity of obligation was necessary. But this rule, it seems, is not now in force. All that is requisite, is that the ■contract on the part of the seller, be founded upon a sufficient consideration, and be made conformably to the requirements of the statute of frauds. If these facts concur, and the circumstances be such as establish a right to equitable relief, the fact that the contract was not mutually binding, is no longer an insuperable bar, although it is a material ingredient in restraining the exercise of the equitable jurisdiction of the court. The plaintiff, by filing the bill, makes the remedy mutual, and, therefore, the objection to a decree to compel the performance of a unilateral contract is taken away.

The contract in this case, is not an absolute one to sell, but gives to the plaintiff merely an option, or right of election, of becoming the purchaser of the lands, at any time within three months from the date thereof. The plaintiff did not avail herself of the privilege thus given, within the time limited. The court is now asked to say that the time specified, is not of the essence of the contract, and that the option may die exercised after such time. We cannot accede to that proposition. It would, in effect, make a new contract for the parties.

In ordinary cases of contracts between vendor and purchaser, the time fixed for the payment of the purchase-money, is not of the essence of the contract, unless the parties themselves have, either expressly or by reasonable implication, agreed that it shall be so considered. The reason is, that the contract gives a present interest in equity, and forfeitures are odious. In this case, however, the defendant has agreed to convey, only upon condition that the plaintiff shall perform the requisite acts on her part, within three months. The plaintiff not being bound to purchase, it would be inequitable to hold the defendant bound to sell, after the time fixed by the contract; for, by so doing, the defendant would be held to a performance if disadvantageous to him, and yet, if advantageous to him, he could not compel a performance by the plaintiff. It is not an answer, to say that the plaintiff agreed to pay an excessive rent, as a consideration for the option granted to her. That was the quid pro quo, for the privilege conferred. It was competent for the parties to agree upon any consideration therefor. It appears that the defendant, acting under advice of counsel, took special pains to avoid incurring the obligations of a vendor in an ordinary contract of sale. The language of his covenant effectually secures that object. Straining it to the uttermost, it is a covenant, contained in a mutual contract, to give an option or right of purchase, and gives no present interest. There being nothing in the nature of the contract, contrary to law or equity, we ought to give it effect, .accordingly. And such is the rule, governing the exercise of the jurisdiction of the court, in this class of cases. It is stated in Story's Eq. Jur. (§ 777 a, 11th ed.) as follows : “ But notwithstanding the rule is well established in courts of equity, that time will not be regarded as indispensable, in regard to decreeing specific performance of contracts for the actual sale of lands on one side, and the actual purchase on the other, it is different where the contract gives a mere election to purchase upon certain conditions. Accordingly, where upon a lease, with the right of purchase within seven years, upon giving three months’ notice, and paying a fixed sum at the expiration of such notice, and the lessee gave the requisite notice, but did not pay the money in time, a bill for specific performance was dismissed. And a similar decision was made by the Lord Chancellor, where his Lordship said : The things required must be done in the order of sequence stipulated. These were notice, and the payment of the money, on a day certain.’ ”

In Mason v. Payne, the suit was founded upon a stipulation in a lease, giving the lessee the option of purchasing the demised premises in fee, at any time within five years, but required him, if he elected to purchase, to give thirty days’ notice of his intention to purchase, and to make payment of one-fourth. The court held that the thirty days’ notice was of the essence of the contract, and that notice, given two days before the expiration of the five years, was too late. We think, therefore, that time was of the essence of the contract in this case, and that the failure of the plaintiff to comply with the terms on which the option was granted, deprived her of the benefits thereof, unless the defendant waived the noncompliance with the condition. A party for whose benefit a condition is imposed, may waive the strict performance thereof; but mere indulgence is never to be construed into such waiver.

Upon this subject, the referee finds that the defendant, several times, expressed a willingness to the plaintiff’s agent, and to her attorney, to allow her to become the purchaser of the premises, on the original terms, notwithstanding the expiration of the time limited, but that he declined to make any agreement to extend such time. Although the evidence on this point was conflicting, yet we see no reason to disturb the finding of the referee. The result is, that the defendant indulged the neglect or inability of the plaintiff, without waiving his rights. Such indulgence can have no legal effect in determining the case. If the referee had found that the defendant either caused, or sanctioned, or authorized the plaintiff’s default, the case might have been different. But there is no such finding, and the evidence on the ' part of the defendant, is, that he merely expressed a present willingness to take the money, while, at the same time, he refused to make any promise for the future. Nor did he do any act, indicative of his intention to waive the forfeiture unless the money were paid presently. Under such circumstances, it is impossible to hold that there was a waiver.

We have no power, on this appeal, to reform the contract, even if the case showed proper grounds for such a decree.

The judgment must be affirmed.

Judgment affirmed.

       Newland on Cont., 153 ; Fry on Spe. Per., § 286 et seq.; Fonb. Eq., Bk. 1, C. 6, § 13.

       Adams Eq., 82; Batten Cont., Chap. 5 ; Willard Eq., 267 ; Justice v. Lang, 42 N. Y., 492, and cases cited on this point; sed vide S. C., 53 id., 323.

       Weston v. Collins, 34 Law Jour. (Chan.), 353; S. C., 11 Jur. (N. S.), 190; Lord Ranelagh v. Milton, 10 Jur. (N. S.), 1141.

       47 Miss., 517.

       See also German v. Machin, 6 Pai., 288 ; Brucher v. Van Buskirk, 2 A. K. Marsh, 345; Geiger v. Green, 4 Gill, 472.

       Gray v. Blanchard, 8 Pick., 284.


text:
    BELLE E. CHISM, Appellant, v. ELLEN H. KEITH and others, Respondents.

      Partition — action for, may he maintained hy rested remainderman—effect of, on contingent interests of persons not in esse—Vested remainder—what creates.

    The provisions of a will, by which real property is given to “the heirs of the body of A., whom she shall leave her surviving,” give to the devisees, during the lifetime of A., a vested remainder in fee, liable to open and let in after-born children, and liable, also, to be defeated by the death of any devisee before the decease of A.
    One who is entitled to such a vested remainder in lands is in possession of his undivided share, within such meaning of the statute relating to actions for partition of lands, although there is a life estate covering the whole lands, and the life tenant is in possession.
    Future contingent interests of persons, not in esse, may be barred by a sale under a judgment in partition.

      Moore v. Littel (41 FT. Y., 76) followed.
    Appeal from an order made in an action brought for the partition of certain real property between the plaintiff, a child of Ellen H. Keith, and the defendants (who are the said Ellen H. Keith, one Shades, a tenant, and seven others, the other children of Ellen H. Keith), claiming title thereto under the provisions of the will of Arabella Baldwin, by which the property was given to Ellen H. Keith, a daughter of the said Arabella Baldwin, to have and to hold the same during her natural life, and, after her death, to “ the heirs of the body of said Ellen H. Keith whom she shall leave her surviving.”
    The action was brought during the lifetime of Mrs. Keith.
    A motion was made in the progress of the action, to confirm the report of a referee, and for an order directing a sale of the property.

      The court, at Special Term, denied the motion, on the ground that, as the plaintiff was neither in possession nor entitled thereto, she could not maintain the action.

      L. A. Haywa/rd, for the appellant.
    1st. The plaintiff in this action has a vested remainder in fee in these premises. (Moore v. Littel, 41 N. Y., 76; Howell v. Mills, 7 Lans., 193; Mead v. Mitchell, 17 N. Y., 213.)
    2d. She has such possession as entitles her to institute proceedings for partition. (Blakeley v. Calder, 15 N. Y., 617; Burhans v. Burhans, 2 B. Ch., 408; Jenkins v. Van Schaack, 3 Paige, 242; Howell v. Mills, 7 Lans., 193.)
    3d. It is no objection to this action that the estate of the plaintiff is liable to be divested by her death. (Howell v. Mills, 7 Lans., 193 ; Mead v. Mitchell, 17 N. Y., 217 ; Moore v. Littel, 41 N. Y., 82, 83.)
    In Clemens v. Clemens (37 N. Y., 70), and also in Adams v. Fox (40 N. Y., 580), the case of Mead v. Mitchell is cited with approval.

      L. W. Thayer, for infant respondents.
   Gilbert, J.:

If the decision of the Court of Appeals, in Moore v. Littel, is to be taken as a correct exposition of the law, the devise in this case, to “the heirs of the body of Mrs. Keith whom she shall leave her surviving,” created a vested remainder in fee, in the present plaintiff, and her brothers and sisters. No sensible distinction on this point, can be drawn. between the two cases. Such remainder is liable to open and let in after-born children of Mrs. Keith, and is liable also, in respect to the share of any child now living, to be defeated by his or her death before the death of Mrs. Keith. Such is the rule of law laid down in Moore v. Littel. It is a rule of property. We have no alternative but to follow it, whatever may be our own views of its correctness.

The future contingent interests of persons, not in esse, may be effectually barred by a sale under a judgment in partition.

If, therefore, a suit in partition may be maintained in behalf of a vested remainderman, the order appealed from is erroneous. Partition between tenants in common of real estate, is matter of right by common law as well as by statute.

And it must now be deemed settled, that one, who is entitled to a vested remainder in lands, is in possession of his undivided share, within the meaning of the statute, notwithstanding there is a life estate, covering the whole premises, and the tenant for life is in actual occupancy thereof.

It follows that the order appealed from must be reversed.

Order reversed.

       41 N. Y., 76.

       Mead v. Mitchell, 17 N. Y., 210; Clemens v. Clemens, 37 id., 59; Noble v. Cromwell, 27 How. Pr., 289; Brevoort v. Grace, 53 N. Y., 245.

       Allen on Part., 4, 78, 87; Smith v. Smith, 10 Pai., 470; Van Arsdale v. Drake, 2 Barb., 599; Haywood v. Judson, 4 id., 228.

       Howell v. Mills, 7 Lans., 193, and cases cited; S. C., Court of Appeals, MS.


text:
    EDWARD F. DOWNER and LE ROY F. SHEPARD, Respondents, v. ALEXIS C. CARPENTER and JOHN BAIRD, Appellants.
    Agent— acts of, in excess of a/utharity—principal not bound by, to party who hots not sustained ingvry thereby.

    By the act of an agent within the general scope of his employment, hut in excess thereof, the principal is not bound to a third person who has rightfully believed the agent was acting within his authority, unless such third person has sustained some loss by reason of such act of the agent.
    Appeal from a judgment entered upon the report of a referee in favor of the plaintiffs, in an action for goods and merchandise sold to defendants by plaintiffs.
    The referee in this case found that the plaintiffs had sold goods to the defendants, in the amount, and on the credit mentioned in the complaint, and that on the 23d day of January, 1872, there was due to plaintiffs on account of such goods and merchandise so sold, the sum of $133.50.
    That prior to February 1, 1872, and on that day, one David Gormly was the traveling agent of the plaintiffs, and was authorized to collect outstanding bills in cash, but was never to receipt an account for which a note should be taken by him, but was, in every instance, to send the note to the plaintiffs for their approval, and they were to determine whether to accept the note and settle the account.
    Gormly, on February 1, 1872, called on defendants and presented the plaintiffs’ account against them; defendants proposed to give their note for the amount, payable in sixty days, to which Gormly assented, and received the note, as he stated, in settlement of the account, but gave no receipt for the- account or for the note, as being given in settlement. Subsequently, and on the afternoon of the same day, the plaintiffs, having no knowledge of the transaction by Gormly, caused to be served on the defendants, a summons and complaint in the action brought for the recovery of the amount due on the account.
    The note was sent by Gormly to the plaintiffs, and by them returned to the defendants.

      Vary <& Stone, for the appellants. -

      Lewis H. Babcock, for the respondents.
   Gilbert, J.:

The referee finds that the authority of Gormly, the agent, did not empower him to take the note, so as to extend the time of payment, without the approval of the plaintiffs, and that the plaintiffs refused to approve. There is evidence sufficient to sustain these findings, and, as the case does not show that all the evidence is set forth, we cannot review the findings.

The taking of the note, therefore, had no legal effect on the original demand If the defendants had sustained any loss, in consequence of the agent’s act in excess of his authority, they might have been protected, upon the principle that where the agent’s act was within the general scope of his employment, but in excess thereof, the principal is responsible to a third person, who, having rightfully believed the agent was acting within his authority, would sustain a loss if the act were not considered the act of the principal. But this rule is applicable only where the question is, which of two innocent parties ought to bear a loss resulting from the agent’s misconduct.

The judgment must be affirmed.

Judgment affirmed.


text:
    THE PEOPLE ex rel. LESTER B. FAULKNER v. THE TRUSTEES OF THE VILLAGE OF DANSVILLE.

      C&rtiorarñ—what errors may hereviewed by — Cha/p. 285, 1873 — constitutionality of —Seo. 16, Art, 3, of the Constitution.

    In 1873, an actwt s passed, entitled, “An act to authorize the village of Dansville to create a debt for the purpose of bringing water into said village for protection against fires, and to amend the charter of said village.” The first four sections of the act authorized the trustees to introduce water into the village, and to create a debt and issue bonds to the amount of $25,000 ; the remaining sections amended various portions of the charter of the village. Held, that the act did not violate section 16 of article 3 of the Constitution.
    That the act was, in substance, one to amend the charter of the village, and that the conferring of power to create a debt for the purpose of supplying the village with water, is only one of the elements of this general subject which is stated in the title.
    Oeetiobabi to review the proceedings of the trustees of the village of Dansville, in issuing certain bonds to defray the expense of introducing water into the village.
    In 1813, the legislature passed an act, chapter 285, entitled, “ An act to authorize the village of Dansville to create a debt for the purpose of bringing water into said village for protection against fires, and to amend the charter of said village.” The first four sections of this act authorized the trustees of the village to create a debt, and issue bonds for the purpose of introducing water into, the village. The remaining sections of the act amended in various particulars the charter of the village. The trustees were required to cause a survey, plan and estimate of the expense of the waterworks, to be made and published in all the newspapers; and section 4 provided that “ no debt shall be created under the provisions of this act other than for the expenses provided for in the last foregoing section, until the statement aforesaid has been published as aforesaid, nor until the question of the creation of said debt has been submitted to the tax-payers of said village, at an election to be called for that purpose, and at which a majority of such tax-payers present and voting at such election shall have voted in favor of the creation of such debt. The trustees shall fix the time and place of such election and the form of the ballot to be used thereat.” * * * The trustees passed a resolution submitting to the tax-payers the question whether or not the debt should be created, and prescribed a time and place for voting. The ballots were indorsed on the outside, “ Dansville Waterworks,” and on the inside, “For Water-works,” or, “Against Water-works.” The relator insisted that from the form of the ballots used, the question, whether or not a debt should be created, was never passed upon by the people.

      Solomon Hubbard da H. B. Selden, for the relator.

      John A. Vcmderlvp, for the respondent.
   Gilbert, J.:

We think the writ of oertiora/ri should have been directed to the board of trustees, instead of the corporation, and that the return should have been made by them, or by the clerk. By the eighth section of the village charter, the trustees are required to form a board, and the next section requires the clerk to attend all meetings of such board; to record their proceedings; and to deliver such record over to his successors.

But, as an amendment of this defect might be allowed, we will consider the material objections of the relator to the proceedings returned.

It is said, the statute which authorizes the proceeding violates section 16 of article 3 of the Constitution. We shall not spend much time on this, for the learning pertaining to it has been pretty nearly exhausted in previous cases. We think this act fairly meets the test declared in the last reported decision of the Court of Appeals on this subject, namely, that “ if the title of an act fairly and reasonably announces the subject, and that is a single one, and if the various parts thereof relate to that, it is sufficient ”

The act is, in substance, one to amend the charter of the village. The conferring of power to create a debt for the purpose of supplying the village with water, is only one of the elements of the general subject. All the provisions of the act are appropriate to an amendment of the charter, and no matter how many particulars are embraced in the statute, they together constitute but one subject. Nor is it material that the title mentions one of those particulars and omits the others, since it does state that it is an act to amend the charter.

It sufficiently appears that a survey and estimate were made and published, as provided by sections 3 and 4 of the act. But, if there were irregularities in these parts of the proceedings, they were not of a kind that can be corrected by a certiorari, being merely executive or ministerial acts. It is urged that the tax-payers have not voted in favor of creating the debt. We think otherwise. A resolution was passed and published, setting forth the question to be voted on, and the form of the ballot to be used. The form of the ballot was wholly within the control of the .trustees, and there is no evidence before us that they intended any deception, or that anybody was deceived by it. If such evidence had been given, it would not have furnished ground for reversing the proceedings, because it would have shown a legislative error, and not a judicial one, in its character.

For the reason last stated, the other errors alleged, namely, the change of plan and of pipes, cannot be reviewed upon a certiorari.

Upon the whole case, the writ must be quashed, with costs to be paid by the relator.

Writ quashed.

       Laws 1853, 638; Re Mt. Morris Square, 2 Hill, 23; 6 Abb., 151.

       Re Mayer, 50 N. Y., 504.


text:
    STEPHEN COLEMAN, Plaintiff in Error, v. THE PEOPLE, etc., Defendants in Error.

      Deceiver of stolen goods — Bcienter — what evidence of, allowed. — Declarations by prisoner as to collateral facts — when their falsity may be shown.

    Evidence of transactions of the prisoner, other than those connected with the offense charged, may he given for the purpose of proving guilty knowledge.
    On the trial, the prosecution was permitted to give evidence of declarations of the prisoner, respecting collateral facts hearing more or less directly upon the question in controversy, and then to prove that such declarations were untrue— held not to he error.
    Writ of error to the Court of Sessions in and for the county of Monroe.
    The plaintiff in error was indicted in the Monroe Oyer and Terminer, in April, 1873, and, by an order of that court, the indictment was sent to the Monroe County Sessions, and in December, 1873, he was tried in the latter court.
    The indictment charged, that on March 3, 1873, the prisoner received five bars of pig-iron, knowing them to have been stolen. The evidence tended to show that on March 10, 1873, Dennis and Daniel Connors stole five bars of pig-iron from P. Burke & Co., and sold the same to Coleman for four dollars; that while the Conners were waiting for their pay, other parties, who had stolen them, brought to Coleman, and sold him, twenty more bars of P. Burke & Co.’s pig-iron. It also tended to show other larcenies by these persons and sales of the results to the prisoner, under suspicious circumstances, for some time previous to March tenth.

      J. 0. Ooehrane, for the plaintiff in error.

      George Haines, District Attorney, for the people.
   Gilbert, J.:

The prisoner was convicted of having received from two boys, named Dennis and Daniel Connors, five bars of pig-iron, stolen by them from Burke & Co., knowing that they had been stolen. His guilt was clearly established, and no honest jury could have failed to convict him. It is now sought to reverse the conviction on several grounds. First, it is objected that evidence of other. transactions with other persons than the two boys mentioned, amounting to distinct offenses, was received. This evidence was admitted for the purpose of proving guilty knowledge on the part of the prisoner, and was confined to purchases of pig-iron by the prisoner, from confederates of the Connors boys. These purchases were so connected with the act charged in the indictment, as, with it, to form a chain of facts constituting together a single course of business. Evidence of this kind, illustrative of the soienter, has often been admitted, and, in many cases, is indispensable to the attainment of justice. The general rule, no doubt, is, that evidence must be confined to the issue. But the evidence objected to, within proper limits, is no infringement of the rule, for it bears directly upon the main point to be determined, namely, the knowledge of the prisoner that the property, charged in the indictment, had been stolen. We think the admissibility of such evidence in a case like the present, is fully sustained by authority.

The prosecution was also permitted to give evidence of declarations of the prisoner, respecting collateral facts bearing more or less directly upon the question in controversy, and then to prove that such declarations were untrue. We do not perceive any fatal error in this. It bore somewhat on the question of the guilty knowledge of the prisoner, and therefore was not irrelevant or immaterial. Nor did the admission of it violate the rule against allowing a contradiction of evidence upon collateral matters, by the party giving it. That rule is confined to.the testimony of witnesses, and does not embrace the declarations of parties. Several other exceptions to the admission of evidence were taken, but they are too unimportant to require comment. We are satisfied that the result would have been the same, if the evidence, last referred to, had been excluded, and, therefore, the admission of it, even if erroneous, would not justify a reversal of the conviction.

The request made to the court, to charge the jury that the prosecution was confined to the larceny of the five bars of iron, March eleventh, and that, as there was no proof that the Connors, were engaged in it, the jury were bound to acquit, was too broad. The court could not properly be required to charge that there was no proof that Dennis and Daniel Connors were engaged in that larceny, or that the jury were hound to acquit. The request therefore was properly refused.

We are satisfied that the defendant was legally and justly convicted, and that the judgment should be affirmed.

Judgment affirmed.

       2 Russ. on Crime, 777; Gr. Ev., § 53 ; Wheat. Cr. Law, 7th ed., §§ 1889, 639, 647.; Osborne v. The People, 2 Park C. R., 583 ; People v. Wood, 3 id., 681; People v. Hopson, 1 Den., 574 ; Rex v. Ellis, 6 B. & C., 145.

       People v. Gonzalez, 35 N. Y., 49, 59 ; Vandevoort v. Gould, 36 id., 639, 644.


text:
    ISAAC BUTTS, Respondent, v. THE CITY OF ROCHESTER, Appellant.
    Assessments— Ya/riance between provisions of city chm'ter and ordinance of common council thereundm' — when mat&rial.

    The charter of the city of Rochester required the expense of local improvements to be assessed on the land, but also made it a charge against the owner, and gave authority to collect it from him. It also provided that all assessments thereafter made should be valid, notwithstanding any irregularity, omission, etc. The common council passed an ordinance directing that the expense of a local improvement be defrayed by an assessment on the owners of the lots benefited. Held, that it was not material that the ordinance was not couched in the precise language of the charter, and that at most it was an irregularity which was cured by the provisions of the charter.
    Appeal from a judgment, entered on the report of a referee in favor of the plaintiff.
    The property of the plaintiff was levied upon by virtue of a warrant issued by the authorities of the city of Rochester, to collect an assessment alleged to have been made to defray the expense of constructing a bridge over a race on the west side of the Gene-see river. To obtain a release of the property, plaintiff paid the assessment, and brings this action to recover hack the money so paid.
    The assessment, it was claimed by the plaintiff, was illegal and void, the ordinance of the common council being, as was claimed, in violation of section 7 of chapter 718 of the Laws of 1870, which requires the common council to make an order that the assessors
      “ make an assessment upon all the lots and parcels of land within the portion or part so designated, of the amount of expense,” etc. The ordinance directed that “ the whole expense shall he defrayed by an assessment upon the owners and occupants of houses and lands to be benefited thereby,” and the assessors were “ directed to make an assessment upon all the owners and occupants of lands and houses within the portion or part of said city so designated,” etc. Section 13 of chapter 718 of Laws of 1870, provides that “ all assessments and re-assessments heretofore made, or that hereafter may be made, for improvements in said city, shall be, and are hereby declared to be, valid and effectual, notwithstanding any irregularity, omission or error in the proceedings relating to the same.”
    The other statutes on this subject are stated in the opinion.

      James Breek Perlcms, for the appellant.

      James L. Angle, for the respondent.
   Gilbert, J.:

The learned referee put his decision upon the ground that the only assessment which the common council could lawfully cause to be made, was one that should create a charge upon lands only, and not one which would create a personal liability against the persons named in the roll, to pay the sums assessed. In this we think the referee erred. It is true that the charter of the city, as amended in 1870 (§ 192), requires that the ordinance authorizing the improvement, shall direct the assessment to be made u¡ion all the lands and parcels of land, within the district of assessment, in proportion, as nearly as may be, to the advantage which each shall be deemed to receive by the making of the improvement. Before the amendment of 1870, the charter required that such ordinance should direct the assessment to be made on all the owners and occupants of lands and houses within the district of assessment, and the mode in which the assessment should be prepared and authenticated, was, and still is, specifically declared. The assessors were to make an assessment roll, in which should be entered the names of the persons assessed, the value of the property for which they were assessed, and the amount assessed to them respectively. The act also provided that city assessments should he collected in the same manner as the annual city taxes—that is, by distress and sale of goods and chattels, —and that whether assessed upon lands, or upon owners and occupants, they should be and remain a lien on the real estate, in respect to which they were made. It also provided, that in the absence of an agreement to the contrary, the owner or landlord, and not the occupant or tenant, should be primarily liable for the payment of every such assessment. These provisions of the act of 1861, have continued in force through all succeeding alterations of the charter. The only important change on this subject, is that alluded to in respect to the ordinance. The amendatoi’y act of 1870, declared that an assessment for a public improvement should create a personal obligation or liability against the owner of the lot or parcel of land assessed, to pay the city of Rochester the amount thereof, and authorized an action for the collection thereof, in addition to any other remedies for enforcing such collection.

The language of these enactments seems to us to manifest an intent on the part of the legislature to make an assessment for a local improvement, whether in form made against owners and occupants, or upon lands, binding personally on the individuals, as well as a charge upon the lands assessed. We can give the statute no other construction. There can be no longer any question of the validity of this kind of legislation. An assessment like the one under consideration, is an exercise of the taxing power, and must be submitted to accordingly. Whether the proceeding be called an assessment upon lands or a tax against individuals therefore, the legal effect of it is the same, for it creates a debt, payment of which may be enforced in the same manner as any other debt. Nor is it material that the ordinance directing the assessment was not couched in the precise language used in the charter. The substance of it was the providing for an assessment to defray the expense of the improvement recited in it. The duty of making the assessment devolved upon the assessors; and the manner in which that duty should be performed, and the legal effect of their act upon land and individuals were fixed by the statute, and were not at all affected by the ordinance.

No lack of conformity to the charter, in any other respect than that on which the referee placed his decision, has been suggested. Jurisdiction having been duly acquired, we think the alleged defect in the ordinance was, at most, a mere irregularity. No mere formal defect or irregularity can affect the proceeding.

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

Judgment reversed, and a new trial granted, costs to abide the event.

       Laws 1861, p. 330, § 192.

       Laws 1861, 332, § 195 ; id., 1865, 1092, § 16 ; id., 1870, 1726, § 8.

       §§ 203, 130.

       209.

         §§ 204, 205.

       1727, § 10.

       People v. Mayor, etc., of Brooklyn, 4 Com., 419.

       See Mayor v. Colgate, 2 Ker., 140; Litchfield v. McComber, 42 Barb., 288.

       Charter, § 208.


author: Mullih, P. J.:

text:
    CAROLINE A. CUSHMAN, and others, Appellants, v. DAVID M. HORTON, Executor, and others, Respondents.

      Word “ heirs ” in will — the distinction between the meaning of, in devises and bequests.

    When land is devised to a person and his heirs, or to the heirs of a person named, the word “heirs” must be construed to embrace those only who are heirs in the strict, legal sense of the term ; unless there is something in the will to show that it was used in a contrary sense.
    In a bequest of personal property, the word “ heirs ” may be construed to mean children, or next of kin.
    On the 2d of February, 1865, Hiram Frisbie, of the town of Sennet, in Cayuga county, made his last will, and, by it, made the following bequests, viz.: Fourth. I give and bequeath to my sister, Polly Carter, the use and profits of $2,000, to be paid her by my executor, hereinafter named.
    Fifth. After the death of my said sister, Polly Carter, I give and bequeath said $2,000, hereinbefore devised to my sister, Polly Carter, to the lawful heirs of my brother, Medad Frisbie, in equal proportions.
    Seventh. I give and bequeath to my said wife, Charlotte H. Frisbie, all the rest, residue and remainder of my estate, of every description, for her own use and disposal.

      The testator died in May, 1865, and his will was duly admitted to probate, and letters testamentary were duly issued to the executor named in his said will. At some time prior to the 27th' May, 1873, Polly Carter died, and, on that day, a final accounting was had by her executor, of his accounts.
    Medad H. Frisbie, the brother of the testator, appeared before the said surrogate, on such accounting, as did the guardian of Hiram F. Horton, together with Caroline A. Cushman and Emilissa Kellogg, grandchildren of Medad H. Frisbie, and demanded the payment to them, of the $2,000 bequeathed to the heirs of said Medad. The widow of the testator also appeared, and demanded the payment to her of said $2,000, on the ground that the said legacy had lapsed, there being no one entitled to take it at the death of Polly Carter, as a living man could not have heirs.
    The surrogate held and decided that the legacy had lapsed, .for the reason alleged, and directed the executor to pay said sum of $2,000 to the widow, and from this decree, the grandchildren of said Medad appeal to this court.
    Pratt, Mitchell <& Brown, for the appellants.

      H. V. Howland, for the respondents.
   Mullih, P. J.:

When land is devised to a person and his heirs, or to the heirs of a person named, the word heirs ” must be construed to embrace those only who are heirs in the strict, legal sense of the term, unless there is something on the face of the will, to show that the word was used by the testator in a more general and enlarged sense.

But when the bequest is of personal property, then the word heirs ” may be construed to mean children, or next of kin.

The word “ heir ” was used by the testator, in this case, in the sense of next of kin,” and the decision of the surrogate must be revoked, and the proceedings remitted, with instructions to enter an order that the executor pay to the appellants the amount of the legacy given by the will to Polly Garter, with costs to the appellant, to be paid out of the estate of testator.

Ordered accordingly.

       Heard v. Horton, 1 Den., 165.

         2d Redfield on Wills, 385 to 391; Wright v. The Trustees of the Methodist Episcopal Church, 1 Hoffman Ch. R., 202, and cases collated at 212, etc.


author: E. Darwin Smith, J.:

text:
    DENNIS KENNEDY and others, Appellants, v. WILLIAM M. SIMMONS, Respondent.

      County judge —power of, to grant order of arrest.

    An order of arrest may be granted by a county judge, though the action in which it is granted is not triable in his county, and though the attorney for the moving party does not reside therein.
    Appeal from an order made at a Special Term held in Onondaga county, setting aside an order of arrest made by the eonnty judge of Cortland county. The facts are stated in the opinion.

      Fuller dk Vann, for the appellants.

      Benton ds Chanvplin, for the respondent.
   E. Darwin Smith, J.:

It appears from a stipulation made by the attorneys for the purpose of this appeal, and from the opinion of the learned judge at Special Term, that the order of arrest was set aside upon the sole ground that the place of trial of said action being in the county of Onondaga, and the plaintiffs’ attorney also residing in that county, the county judge of the county of Cortland had no jurisdiction or authority to grant such order of arrest, conceding that such order was made upon affidavits duly presented to such judge, containing sufficient grounds therefor, upon the merits.

The order at Special • Term was doubtless based upon the construction of subdivision number 3, of section 401, of the Code, which provides that orders made out of court, without notice, may be made by any judge of the court, in any part of the State, and they may also be made by a judge of the county where the action is triable, or by the county judge of the county in which the attorney for the moving party resides.”

This provision, we think, is an enlargement of the powers of the county judge, and applies to the general and ordinary class of orders made in the progress of a cause, and was not intended to qualify or restrict the express powers conferred upon county judges in respect to provisional remedies.

The power to grant injunctions, orders of arrest and attachments, is conferred upon the county judges in as clear and explicit language as upon the judges of this court, and is equally unqualified, in sections 218, 220, 223 and 225, in respect to injunctions, and 228, in respect to attachments, and 180, in respect to orders of arrest.

This construction of the powers conferred upon the county judges, in respect'to provisional remedies, was in principle asserted and adopted by the Commissioners of Appeals, in the case of Webb v. Bailey, reported in the abstract of the decisions of that court, published in the Albany Law Journal, vol. 9, No. 17, at page 276, of the date of April 25, 1874. That was a case where, under like circumstances as in this case, an attachment was granted by the county judge of Chautauqua, in an action where the venue was in Cattaraugus, and the plaintiffs’ attorney also resided in the last mentioned county. It was expressly held in that case, that the powers given to a county judge, to issue writs of attachment in actions in this court, by section 228, of the Code, are not restricted to cases to be tried in his county.

That case we consider decisive of the question presented upon this appeal, and the order of the Special Term must therefore be reversed.

Order reversed.


text:
    ERASTUS A. CARROLL and another, Respondents, v. MARTIN WEILER, Appellant.

      Liability of owner of dog, for injuries to sheep—evidence.

    Action to recover for damages sustained by the killing and wounding of plaintiff ’s sheep by a dog of defendant. At the trial, it appeared that two dogs were engaged in killing and wounding the sheep, one of which was owned by a Mr* McCarthy, the other, as it was alleged, belonging to the defendant. Upon the defendant’s cross examination, he was asked whether he had killed the dog since the former trial of the cause; held, that the question was proper; that in the absence of evidence as to the cause of killing, it might be inferred that the dog was killed to destroy proof of his identity, or that defendant believed that he had killed the sheep, and killed him to prevent further loss.
    At the trial, McCarthy was allowed to testify that he, at one time, saw a dog resembling the defendant’s, in his (McCarthy’s) orchard, in company with his own dog. Held, that the evidence was properly admitted, as it tended to show that the dogs were known to each other, and, on one occasion, at least, were in company, thereby laying the basis for a presumption, that when a feast was to be had upon plaintiff’s sheep, they would enjoy it together.
    Appeal from a judgment of the County Court of Ontario county, affirming a judgment of a justice of the peace in favor of the plaintiff.

      J. Korr, for the appellant.

      JEdwm Kicks, for the respondent.
   Opinion hy Mttllin, P. J.

Judgment affirmed.


text:
    THOMAS E. PATTISON, Plaintiff, v. THE SYRACUSE NATIONAL BANK, Defendant.

      Bank—Packages received for safe-keeping—when responsible for — when entitled to compensation for.

    This action was brought to recover for the loss of certain securities deposited with the defendant. The defense was, that the bank had refused to receive packages for safe-keeping, for some time before the package in question was left, and that no compensation had been paid or agreed to be paid for keeping the package, and hence the bank was only liable for gross negligence. At the trial, it appeared that the bank had formerly been in the habit of receiving packages for safe-keeping, and that such business was not wholly discontinued at the time of receiving the plaintiff’s package. Held (1), that, as no instructions were given to the subordinate officers of the bank to reject packages, and as no notice had been given that they would not be received, the receipt of such officers would bind the bank; (2), that, as the bank had been in the habit of taking money packages for safe-keeping, and as it did not appear that they were kept without charge, and unless they were so kept, the bank had the right to demand pay for the service, in which case the bailment would not be a gratuitous one, the case should have been submitted to the jury, and that the court erred in directing a nonsuit.
    Motion to set aside a nonsuit, and for a new trial, upon exceptions ordered to be beard in the first instance at the General Term.

      George F. OomstocJo, for the plaintiff.

      D. Pratt, for the defendant.
   Opinion by Mullin P. J.

New trial ordered, with cost to abide the event.


text:
    ISAAC WAID, Respondent, v. LEWIS GAYLORD, Sheriff, Impleaded, etc., Appellant.

      Levy—when sufficient to sustain an action of replevin.

    A levy upon the right, title and interest of the judgment debtor in goods, is, in law, equivalent to a levy upon the things themselves. It amounts to a seizure of the goods for the purpose of selling the whole or a qualified interest therein, and is sufficient to sustain an action of replevin.

    A judgment having been recovered against Thomas Waid, a son of the plaintiff, execution was issued thereon, and placed in the hands of defendant. M., one of his deputies, went to the house of the plaintiff, in his absence, and levied upon all the right, title and interest of the said Thomas, in certain property, and subsequently advertised the same for sale. Thomas had no right or interest, whatever, in the property. In an action of replevin, brought by the plaintiff, held, that he was entitled to recover.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Sowbhwortk & Parks, for the appellant.

      K. Oarroll, for the respondent.

       Knapp v. Smith, 27 N. Y., 277; Latimer v. Wheeler, 1 Keyes, 468.

   Opinion by Gilbert, J.

Judgment affirmed.


text:
    GEORGE F. DE ROE, Respondent, v. ROSWELL B. SMITH, as President of Rochester Towing Company, JOHN BIRD and ROSWELL B. SMITH, Appellants.

      TTswry —joint stock associations — when precluded from setting up, as a defense.

    This action was brought on a promissory note, made by the Rochester Towing Company, a joint stock association, organized under the laws of this State, and indorsed by the other defendants. On the trial, the defendants offered to prove facts, showing that the note was usurious. The evidence was excluded under chapter 172 of the Laws of 1850, which provides that joint stock associations, having any of the powers or privileges of corporations, not possessed by individuals or partnerships, are prohibited from interposing the' defense of usury in any action. The court were of opinion that this company had such powers and privileges;  that the individual defendants, being mere accommodation indorsers, could not avail themselves of the defense of usury.

      Lewis JEL. BabcooTc, for the appellants.

      Q. D. Adams, for the respondent.

       3 R. St., Edmonds’ ed., 684, 685 ; 4 id., 650, et seq.; 7 id., 55, 82, 306, 426; Robbins v. Wells, 18 Abb., 191; Waterbury v. Merch. U. Ex. Co., 3 id., N. S., 163.

       Rosa v. Butterfield, 33 N. Y., 665 ; Belmont Branch of State Bank v. Hodge 35 id., 65.

   Opinion by Gilbert, J.

Judgment affirmed.


text:
    CHARLES H. MOORE, Administrator, etc., Respondent, v. ALBERT H. PICKARD, Appellant.

      Conditional sale—Machine to be tried.

    The plaintiff’s intestate sold and delivered to the defendant a Buckeye reaper and mower, and it was agreed, that if the machine did not work well, the defendant need not keep or pay for it. The machine did not work as a reaper, but was a good mower. The defendant used the machine during the season of 1868, and had it repaired by plaintiff’s intestate in the spring of 1869, upon the agreement that, if the machine did not work well, the defendant need not keep it. Defendant used the machine during the season of 1869, and nearly wore out the mowing part, which worked well after it was repaired in 1869. In an action brought by the plaintiff, the referee directed judgment in his favor, for the value of the machine as a mower. Held, that the defendant .was only entitled to try the machine for a reasonable time, but that such reasonable time was exceeded by the defendant, and that he was clearly liable for the mower; and that the referee might have presumed, from his retention of the machine for so long a time, that he had accepted the whole machine.

      Appeal from a judgment in favor of plaintiff!, entered on the report of a referee.

      Thomas M. Webster, for the appellant.

      E. Porter, for the respondent.
   Opinion by Smith, J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.