author:
Haight, J.:
      Bradley, J".

text:
    Hiram F. Henry, Appellant, v. Norman M. Allen and Another, Respondents.

      Principal and agent — when the principal is chargeable with the knowledge of his agent and his manner of doing business — notice.

    A principal is chargeable with the knowledge possessed by his agent and the manner in which he transacts the business placed in his charge.
    Notice of a fact to an agent is constructive notice thereof to the principal where it arises from or is at the time connected with the subject-matter of his agency ; it is presumed that an agent has communicated such fact to his principal, and if he has not, the principal, having intrusted the agent with the particular business, a third person has a right to deem his acts and knowledge obligatory upon his principal. (Bradley, J., dissenting.)
    Appeal by the plaintiff, Hiram E. Henry, from a judgment of tbe Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cattaraugus on the 29th day of February, 1892, upon the report of a referee dismissing the plaintiff’s complaint upon the merits.

      Sherman S. Rogers, for the appellant.

      William H. Hendersom, for the respondents.
   Haight, J.:

This action was originally commenced against Norman M. A11 err and Hoyt M. Allen as co-partners engaged in the business of banking, at Dayton, N. Y., under the firm name of Norman M. Allen & Son, but since this appeal ivas taken Hoyt M. Allen died.

The action was brought to recover the sum of $27,999, being the amount of thirty-three instruments in writing, each of which was in the following form, omitting dates and amounts :

“ $...... Dayton, N. Y.,..........188. *
Norman M. Allen & Son, Bankers.
“ Pay to the order of F. Monson,............dollars.
“N. NX. ALLEN & SON.”1

The plaintiff resided in the village of Gowanda, distant about four miles from the residence of the defendants, but had no personal acquaintance with either. One Eorbes Monson, the person named as payee in the instruments sued upon, also resided in the village of Gowanda, and the plaintiff' was intimately acquainted with him.

On the 12th day of Mai’ch, 1886, the plaintiff was the owner of three certificates of deposit issued by the Bank of Gowanda, one of which was for $1,163.54, and the other two for $1,000 each. Chiefly through the representations of Monson he had become suspicious of the solvency of the bank, and decided to withdraw his money therefrom. lie accordingly entered into an arrangement with Monson by which he was to deliver to him his three certificates of deposit for the purpose of having him withdraw the money from time to time in such manner as not to create a suspicion on the part of the officers of the bank of his purpose, or of where the same was to be placed, and to deposit the same with Norman M. Allen & Son. It was further arranged that from time to time thereafter he should send or deliver to Monson the money which he might be able to save from his business as showman whilst upon the road, and that Monson, acting for and on his behalf, should take it to the defendants’ bank and there deposit it, and, as the referee has found, to send or deliver to him for each deposit so made either his individual check or the check of the defendants indorsed by Monson for the amount of each deposit; that Monson should have charge of that branch of his business and of making deposits with the defendants, and of negotiating with them in reference thereto, and of looking after the same, and when the amount so deposited should aggregate the sum of $5,000 a loan to the defendant Norman M. Allen should be made therefor upon a bond secured by a mortgage upon real estate, ¿sa part of such arrangement it was agreed that Monson should pay him six per cent interest on all sums delivered to him for deposit. Pursuant to this arrangement he delivered to Monson the three certificates of deposit, and from time to time thereafter up to the 4th day of March, 1889, sent by’letter and delivered to Mon-son various sums of money for deposit with the defendants, amounting in the aggregate to $27,999, which sums he charged to Monson as the same were remitted to him from time to time.

On the 12th day of March, 1886, Monson opened an account with the defendants in their bank by making a deposit to his own credit therein of a part of the proceeds of one of the certificates of deposit delivered to him by the plaintiff, and from time to time thereafter made other deposits to his own credit of the various sums which he received from the plaintiff. In making such deposits he procured from the defendants the thirty-three instruments upon which this action is founded, each instrument being filled out with the date and the amount of the deposit. In order to procure the same he stated and represented to the defendants that the money was his own, that he was a co-partner of the plaintiff Henry in his business, and that the money had been received by him as his share of the profits in the business, and that he desired the instruments solely for his own accommodation, and as a memorandum only, to be used by him in his settlement with the plaintiff, after which he would return the same to the defendants, and that they should not be transferred or -delivered to any person or persons, and that neither of them should have any legality as commercial paper, and that neither should be a ■valid or binding obligation on the part of the defendants or either of them. The referee has found that these representations were made with a fraudulent intent and purpose, to induce the defendants to execute and deliver to him the instruments in question, and that the defendants, relying upon such statements and representations, believing them to be true, were induced to make, and di$ make and deliver to Monson from time to time the instruments in question, neither of which was charged up to him or his account; that he paid nothing therefor, and that each and every of them was and is entirely without consideration. It further appears that shortly after the' receiving of each of such instruments, Monson wrote upon the back thereof to pay to the order of the plaintiff, and signed his name thereto, and either mailed or delivered the same to the plaintiff, who received each instrument believing that Monson had deposited his money according to the terms of their agreement, and had procured each of the papers in consideration of such deposit. The plaintiff retained the instruments, and ■did not present them to the defendants for payment until the 12th day of February, 1891, when they were all presented together for ■payment by the plaintiff’s attorney. In June, 1886, Monson paid to the plaintiff the interest on all moneys delivered to him up to July 1, 1886, at the rate of six per cent, and continued to pay .such interest quarterly upon all moneys received by him up to January, 1890. The defendants had no knowledge or information of the agreement existing between the plaintiff and Monson, or that the plaintiff had, or claimed to have, any interest in the money so deposited, or that their said instruments had ever been delivered to the plaintiff, until February, 1891. In the meantime Monson had checked out all of the money deposited by him to his credit with the defendants, and on the 9th day of February, 1891, absconded.

Some criticism has been made upon the findings. It is said that the plaintiff never agreed to accept the individual check of Monson. For the first money derived by Monson upon one of the certificates of deposit delivered to him by the defendants, he mailed to the plaintiff his individual check inclosed in a letter, in which he appears to have apologised for not procuring it to be certified, pleading as an excuse that he had forgotten to do so. To this the plaintiff replied, saying: “ There is no earthly need of your having your check certified. Why, what an idea. I don’t want your checks at all.” Thereafter Monson appears to have procured the defendants’' checks payable to his order, which he indorsed over to the plaintiff. The plaintiff testified that in his conversation with Monson, Monson ' wanted to know of him if N. M. Allen’s check would be security ; that he told him he would make inquiries, and subsequently told him that he would take N. M. Allen & Son’s checks provided he would indorse them, and that they began the business with that, understanding. It is, therefore, apparent that the plaintiff did not. agree to take the individual check of Monson, but that the understanding was that he should take the check of the defendants indorsed by Monson.

It appears that Monson paid jfiaintiff the interest, the referee finds,, down to January 1, 1890. That is the last date of payment shown by the receipts; but it is claimed by the appellant that it appears from the letters written by the plaintiff to Monson that the interest was paid down nearly to the time that Monson absconded. Under the view taken by us this variance is unimportant. The plaintiff knew that Monson was paying the interest upon his deposits. He testified that he supposed that Monson in some way obtained the* interest from Allen. But his letters leave this question in some doubt, for he had the defendants’ check for each deposit in his possession, and these checks contained no promise to pay interest. In several of his letters to Monson lie speaks of the interest, and expresses some donbt as to whether he ought to take interest from him. In his letter from Bangor, under date of “ 10-8-87,” he says : Just received yours 6th mentioning payment to Leonard $1†2.50 to my credit, same being interest on my deposits as understood. I feel rather sheepish in this interest matter, but I presume as long as you are bound to do it I shall have to accept it. Inclosed find my receipt for the same. With every appreciation, believe me, truly, Henry.” *

And again, from Perth Amboy, October fifth (the year not given) he writes: I don’t feel right to take interest from you on money that is actually a bother to you. I don’t want your friendship to extend to such matters.” We shall, however, assume, for the purposes of this review, that the plaintiff supposed that Monson had procured the interest which he paid him from Allen & Son.

It is also claimed that the referee erred in finding that the defendants had no knowledge that the money deposited with them by Monson belonged to the plaintiff. It is claimed that Henry wrote a letter to Allen & Son about the time that Monson commenced depositing the money with them, in which he stated in substance that Monson had influenced him to withdraw his funds from the Bank of Gowanda and to place them in the defendants’ bank; that Monson was a great friend of his and very enthusiastic over his success, but wanted the matter to be strictly a business matter. He, however, kept no copy of the letter ; could not tell at what place he wrote it; his correspondence was very voluminous, and that he could not be certain as to the exact contents of the letter. N. M. Allen testified that he remembered receiving a letter from the plaintiff; that he was unable to find it among his files; that lie thought he had passed it over to Monson; that he could not recall the contents of the letter further than that it conveyed to him no idea that the plaintiff had withdrawn any money from the Bank of Gowanda to be deposited with them through Monson. The referee appears to have believed the defendants’ testimony, and where there is a conflict between two interested parties it is our usual practice to follow the, findings.

We must, therefore, treat the instruments in suit as memorandum checks issued by the defendants to Monson, without consideration, and in liis hands creating no liability against the defendants. They could only become liable thereon by a transfer of the checks by .Mon-son to a purchaser in good faith for value in the regular course of business, without notice of the arrangement under which they were issued. Is the plaintiff such a holder ? It is not shown that he had ' actual knowledge of the facts under which they were issued, but it is found as a fact that he had constituted Monson his agent to take his money and deprosit it with the defendants, and this we do not understand to be controverted. J3y delivering his money to Monson he invested him with the indicia of title, and thus enabled him to induce the defendants to believe that the nibney belonged to him. As we have seen, he took the money to the defendants,- reprresented it to be his, deprosited it with them, had credit given to himself in his individual account, and subsequently withdrew it upon his own checks. Were it not for the checks it would not be claimed that the defendants, after the repayment of the money so deposited by Mon-son to him, were liable to the prlaintiff. Their liability is sought to be established through the memorandum checks, but, as we have seen, they were induced to believe that the money belonged to Monson, and wfere induced by him, at the time of making the several deprosits, to issue to him the memorandum checks in question under the -reprresentation that they would be kept by him and not delivered to any other prerson. Monson exceeded his authority as agent of the prlaintiif, and,.as found, intended to defraud the defendants. He did not deprosit the money in the name of his principral, as he was exprected to do. He procured the checks upron the representation stated, and did not disclose that fact to the prlaintiff; but he was authorized to take the money to the defendants, to deposit it, to procure their cheeks therefor, to indorse the same, and to return them to the prlaintiff. The prlaintiff ought to have known that Monson was depositing the money with the defendants in his own name from the fact that the checks issued therefor were issued to him and prayable to his order. This fact should have caused him to make inquiry, but he appears not to have done so, but to have rested under the belief that his agent had prroperly prerformed his duty. The rule, as we understand it, is that the principal is chargeable with the knowledge possessed by his agent and the manner in which he transacts the business placed in his charge, and, as applied to the facts of this case, the plaintiff must be charged, with notice of the facts under which Monson procured the memorandum checks to be delivered to him by the defendants.

Story on Agency, at section 140, says: “ Upon a similar ground notice of facts to an agent is constructive notice thereof to the principal himself, where it arises from, or is at the time connected with, the subject-matter of his agency, for, upon general principles of public policy, it is presumed that the agent has communicated such facts to the principal, and, if he has not, still, the principal having intrusted tlie agent with the particular business, the other party has a right to deem his acts and knowledge obligatory upon the principal; otherwise, the neglect of the agent, whether designed or undesigned, might operate most injuriously to the rights and interests of such party.”

And again, at section 419, he says: “ This doctrine applies a fortiori to every case where the agent does not contract in his own name, but solely in the name of his principal, for, in such a case, the principal is not only the contracting party, but he is the sole contracting party, exclusive of the agent, and is alone competent to sue or enforce any other remedy thereon. In all cases of this sort, however, the principal, while he is entitled to all the advantages and benefits of the contract of his agent, must take them with all the attendant burdens and subject to all the attendant just counterclaims and defenses of the other contracting party. Thus, if the contract of the agent is impeachable on account of the fraud, imposition, misrepresentation or other misconduct of the agent, the principal is affected with all the consequences thereof, and cannot avail himself of his own innocence to support what would otherwise be an unfounded or defective title. So, if the agent has sold goods in 1ns own name, no other person being known as principal, and the agent agrees at the time of the sale that the vendee may set off against the price a debt due to him by the agent, that set-off will be as good against a suit brought by the principal as it would be if the suit was brought by the agent for the price.”

And again, at section 420, he says: “Neither will it make any difference in such cases * * * that the principal, at the time of entering into the contract, is known or unsuspected, nor that the third person has dealt with the agent, supposing him to be the sole principal. Tbe only effect of the last consideration is, that tbe principal will not be permitted to intercept the rights of such third person in regard to the agent, for he must take the contract, subject to all equities, in the same way as if the agent were the sole principal. Thus, for example, if the agent is the only known or supposed principal, the person dealing with him will be entitled to the same right of set-off as if the agent were the true and only principal. But, .subject to these rights and those of the agent himself, the principal may generally sue upon such a contract in the same manner as if he had personally made it.”

Mechem, in his work upon Agency, at section 773, says: “ But if the principal would avail himself of the benefits of a contract made by an agent in his own name, without disclosing his principal, he must also assume the responsibilities of the contract. He must take the contract as it exists at the time he interposes, and subject to all the rights which the other party then possesses against the agent. In the homely but expressive language of a learned judge, the principal must step into the shoes of the agent.’ Hence, where a third person, who has entered into a contract with the agent in ignorance of the fact that he was not the real principal, as he assumed to be, is sued upon the contract by the principal, he may avail himself, as against the principal, of every defense, whether it be by common law or statute, which existed in his favor against the agent at the time the principal first interposed and demanded performance tohimself. This right is not affected by the fact that the agent in thus entering into the contract in his own name, without disclosing his principal, acted in contravention of the express directions of his principal.”

In the case of The Bank of the United States v. Davis (2 Hill, 451) the action was brought to recover the amount of two bills drawn by the defendant. It appears that these bills were transmitted by the drawer to "Williams, one of the directors of the bank, for the purpose of having them discounted for the benefit of the former; that "Williams put his own name upon the paper, and procured it to be discounted for himself and appropriated the avails. At the time he was one of the five directors of the bank constituting the board of discount. His associates had no knowledge of his fraudulent use of the bills. It was held that the bank could not recover. Nelson, Cli. J., in delivering the opinion of the court, says: “ The general rule is undisputed that notice to the agent is notice to the principal, if the agent comes to the knowledge of the fact while he is acting for the principal in the course of the very transaction which becomes the subject of the suit; for, upon general principles of policy, it must be taken for granted that the principal knows whatever the agent knows. There is no difference between personal and constructive notice except in respect to the guilt; for, if there were, it would produce great inconvenience, as notice might be avoided in every case by employing an agent. * * * It is said, however, that "Williams was but one of the five empowered by the bank to represent it in this transaction; that the bank is not, therefore, to be held responsible for his individual fraud at the time, nor can it be chargeable with his knowledge of the facts under which the paper in question was discounted ; and that such knowledge is chargeable only when the agent has full power to act for the principal in the particular case. It is not to be denied that if the principal employs several agents to transact jointly a particular piece of business, he is equally responsible for the conduct of each and all of them while acting within the limit and scope of their power, as completely so as he would be for the conduct of a single agent upon whom the whole authority had been conferred. He cannot shift or avoid this responsibility by the multiplication of his agents. It is also clear that the corresponding responsibility of each of the several joint agents to the principal for the faithful discharge of their duties is as complete and perfect as in the case of a single agency; and any prejudice to the principal arising from fraud, misconduct or negligence of either of them would afford ground for redress from the party guilty of the wrong. These are general conceded principles for which no authority need be cited. One of the grounds for charging the principal with the knowledge possessed by the agent is because the latter is bound to communicate the fact to the former, and is liable for any prejudice that may arise from a neglect in this respect; and, hence, the law presumes that the principal has actual notice.”

In Hyatt v. Clark (118 N. Y. 563, 569) it is said by Yann, J., after quoting from Story on Agency: “In other words she was chargeable with all the knowledge that her agent had in the transaction of the business he had in charge.”

In Adams v. Mills (60 N. Y. 533, 539) it is said that “his notice and knowledge must be regarded as notice to and kno wledge of the wife according to the well-settled principle that a principal is chargeable with all the knowledge the agent possesses in the transaction of the business he has in charge.” (See, also, Myers v. The Mutual Life Ins. Co., 99 N. Y. 1-11; Hogan v. Shorb, 24 Wend. 458; Laing v. Butler, 37 Hun, 144; affd., 108 N. Y. 637; School District in Greenfield v. First Nat. Bank in Greenfield, 102 Mass. 174; Farmers & Mechanics' Nat. Banh v. King, 57 Penn. St. 202.)

The learned referee is of the opinion that the plaintiff could not recover for the reason that he parted with nothing of value at the time he received the instruments upon which he brings his suit; that he first sent his money to Monson and charged him therefor in his book; that some days later Monson returned the checks and was then given credit therefor; that at that time the plaintiff received and credited the checks on a pre-existing debt against Monson, and that in consequence thereof the defendants were not precluded from interposing the defense that they had thereto, citing Clark v. Gallagher (20 How. Pr. 308); Phoenix Ins. Co. v. Church (81 N. Y. 218); Potts v. Mayer (74 id. 594).

The referee also appears to have been of the opinion that the long time intervening after the plaintiff received the checks before he presented them to the defendants for payment, furnished evidence that the plaintiff did not receive them in the regular course of business, citing Claflin v. Bank (25 N. Y. 293).

We have not deemed it'necessary to consider these questions, for under the view taken by us the plaintiff is chargeable with knowledge of the agreement of Monson with the defendants, and consequently they may avail themselves of their defense the same as if the action was prosecuted in the name of Monson.

The judgment should be affirmed, with costs.

Dwight, P. J., and Lewis, J., concurred.

Bradley, J".

(dissenting):

The plaintiff handed his certificates and money to Monson to> deposit in the bank of N. M. Allen & Son. This was to be done for the plaintiff, and such was the authority and direction given by him to Monson. The .purpose of the plaintiff was to have the responsibility and liability of those bankers for his money. And by their checks or bills drawn by them on themselves which came to the plaintiff he was advised that the deposits were made, that the amounts thus represented would be paid on presentation of such checks, and that until then a balance would remain in their bank to pay them. This was the import of the instruments, and the situation represented by them to the plaintiff. "While the plaintiff may in the outset have intended that the money should be deposited to his own credit, he was at liberty when the bankers’ negotiable checks came to him indorsed by Monson, to treat the object as practically accomplished. The purpose of Monson’s authority was apparently fulfilled when he had furnished to the plaintiff such evidence of the liability of the bankers to pay the respective amounts so deposited. And the plaintiff had no reason to apprehend that those instruments were intended by the drawers to have another or different legal effect than that which they by their terms purported to give to them. But it seems that the bankers had an understanding with Monson that the checks were not to be treated as effectual for any purpose, and that he should be permitted to draw the money from the bank without the production or presentation of them. When the plaintiff after-wards presented those checks for payment to the bank, payment was refused.

The question, therefore, is whether or not the plaintiff was affected by such understanding between the bankers and Monson.

It is urged on the part of the defense that the plaintiff was chargeable with knowledge of the purpose for which the instruments were issued to Monson because the latter was his agent in the transaction of depositing the money.

The fact is that Monson had authority to deposit the money in the defendants’ bank for the plaintiff and not elsewhere, and when he did that and thus secured the liability of the bankers to the plaintiff he had accomplished all that his authority from the plaintiff permitted. He, however, assumed to deposit the money as his own, and in tliat manner induced the bankers to treat him as owner, and by reason of the confidence reposed by them in him and upon the pretense of a purpose suggested by Monson they delivered to him their checks in form negotiable. The purpose for which they were issued to him, if effectual, would be a fraud upon the plaintiff.

It would seem that when Monson departed from the purpose for which he was commissioned by the plaintiff to act for him, and acted for himself, he got beyond the scope of his authority derived from the plaintiff; that in making the arrangement in respect to the character the bankers’ checks should have he was engaged in the commission of an independent fraudulent act on his own account; and that notice of it was not imputable to the plaintiff, as to whom and his interest he was thus, and for his fraudulent purpose, acting adversely. (Innerarity v. Merchants’ N. Bank, 139 Mass. 332; Atlantic Mills v. Indian Orchard Mills, 147 id. 268-278; Allen v. South Boston R. R. Co., 150 id. 200-206.)

The defendant, however, having no knowledge of the relation of the plaintiff to the transaction of the deposit of the money, would not have been liable to the latter if the checks or drafts of his banking firm had not been made and issued to Monson. They, as their import represented, were the negotiable undertakings to pay the amount of the deposits, and they were, as they seemed to the plaintiff, the products of the deposit of his money in the bank. They were so received and treated by him in good faith. The trouble which has occasioned this controversy arises from the unusual and probably unprecedented action of the bankers in issuing their negotiable checks or bills to Monson in reliance upon his promise to retain and return them., If they had not been furnished to the plaintiff for the respective deposits of his money his remittances to Monson for that purpose would have ceased. For the bankers to say that they supposed their checks would be held by Monson is not a very satisfactory answer in a legal sense, as there was no restriction other than in his worthless promise that he would not let them pass from him.

The proposition that the plaintiff was chargeable with notice that the bankers made and delivered the drafts to Monson pursuant to ■an agreement which destroyed their validity or rendered them in effect other than that which was plainly their purport, has, as viewed by me, neither reason nor principle for its support.

The case of Bank of United States v. Davis (2 Hill, 451), mucli relied upon, does not-seenrto aid the defense. There "Williams was. one of a board of directors of a branch bank, of the plaintiff at Erie, Penn., and to him the bills in question were sent by the drawer for discount at that branch. He indorsed his name upon them and procured them to be discounted for himself and appropriated the proceeds. His associates in the board had no notice of the fraudulent; use of the bills, and supposed the discount was made in good faith for himself. The court held that the bank was chargeable with notice of the fraudulent conduct of the director "Williams, for the reason that the bills were transmitted to the director Williams for-the purpose of having them discounted by the bank for the drawer,, and that he was acting in behalf of the bank at the time of the transaction in question. And Chief Justice Nelson, in delivering the opinion of the court, said: “ But one answer has been made to the conclusion at which we have arrived, and that is that Williams-should not be regarded as a director in the discount of the bills in question. If this could be maintained then I admit the argument; fails; but we have already endeavored to show this position to be. utterly untenable; that it is not true, either in point of fact or in contemplation of law.”

It was in the scope of the power of the directors to discount, paper. And the court said: “It is not to be denied that if a-principal employs several agents to transact jointly a particular piece of business he is equally responsible for the conduct of each and all of them while acting within the limit and scope of their power.” In that case, while representing the bank as its director, the bills were transmitted to and received by Williams, as such director, to be discounted for the drawer, and by causing it to be done he secured an advantage to himself. And it was held that his relation to the bank was such, in the matter of discounting the bills, that notice of the purpose for which they were received by him was imputed to the bank as the bills were discounted by it through the action of the directors.

The principle of the case, in view of the facts presented by it, is referred to and somewhat exemplified by Judge Gray in Casco Nat. Bank v. Clark (139 N. Y. 301).

It may be observed that in the U. S. Bank case, Williams was not tbe adverse contracting party. He was acting as its director in procuring tbe discount of the paper, although he may have had the purpose of realizing an advantage to himself from it. In the present case the plaintiff was chargeable with knowledge that the money was deposited to the credit of Monson. Further than that the drafts of the bankers transmitted to the plaintiff advised him that the .amount remained with them subject to call on presentation of those instruments according to the usual custom and course of banking business in such cases.

The promise of Monson to retain and return the checks-was made to procure them for the purpose of defrauding somebody, and the issuing them, with permission to draw the money from the bank without their production and surrender, enabled him to do so. He evidently did not care which, the bankers or the plaintiff, suffered the consequences. He knew it was only through the means afforded by the irregular and inexcusable method which the bankers consented to adopt that he could consummate his fraudulent purpose. It certainly would be a most remarkable presumption that would impute to the plaintiff notice that the bankers did not intend that their checks should have the character of their import.

In Allen v. South Boston R. R. Co. (150 Mass. 206), after stating the general rule of constructive notice to the principal of facts within the knowledge of the agent affecting the character of the transaction while acting for him, the court added : “ There is an exception to this rule when the agent is engaged in committing an independent fraudulent act on his own account, and the facts to be imputed relate to this fraudulent act. * * * It has been suggested that the true reason for the exception is that an independent fraud committed by an agent on his own account is beyond the scope of his employment, and, therefore, knowledge of it, as matter of law, cannot be imputed to the principal, and the principal cannot be held responsible for it. * * * Whatever the reason may be the exception is well established.” And in Innerarity v. Merchants’ N. Bank (139 Mass. 332), upon the subject of the reason for,the exception to the general rule, the court observed: “ While the knowledge of an agent is ordinarily to be imputed to the principal, it would appear now to be well established that there is an exception to the construction or imputation of notice from the agent to the principal in case ■of such, conduct by the agent as raises a clear presumption that he would not communicate the fact in controversy, as where the communication of such a fact would necessarily prevent the consummation of a fraudulent scheme which the agent was engaged in perpetrating.”

It may be stated as a theory or ground upon which notice is imputed to the principal of facts which come within the knowledge of the agent, while acting in the scope of his authority, that the duty of the agent is to communicate such facts to his principal, and the presumption is that he had done so. (C. N. Bank v. Clark, 139 N. Y. 307-313.)

When the agent is attempting to do that which if .effectual would be a fraud upon his principal, the presumption that he has communicated to or will advise him of the facts of the transaction certainly cannot be presumed, nor can it be assumed by the person with whom the agent is dealing that such purpose or conduct of the agent is within the scope of his authority. It is quite evident that if N. M. Allen & Son had been advised that Monson was acting for the plaintiff in depositing the money, it would have been apparent to them that an arrangement to the effect that the checks should be nugatory as such, and for that reason Monson might draw out the money without the presentation of them, would be in fraud of the plaintiff, and, therefore, not within the scope of his authority to Monson.

The proposition upon which the defendants seek to charge the plaintiff with constructive notice, being that of agency and his relation of principal, is for the purpose of the question not other than it would be if the bankers had then known that Monson was acting for the plaintiff in depositing the money.

And it seems quite clear that no support for the defense can be founded upon imputation of notice to the plaintiff arising out of the relation of agency, because the very nature of the understanding, to the effect that the cheeks or drafts were to be deemed nullities, was such as to advise the bankers that it was not within the scope of the agency of Monson to fraudulently defeat the purpose of the authority given him by the plaintiff.

So far, therefore, as the defendants seek to defend upon the ground of constructive .notice to the plaintiff arising out of the agency of Monson, they must assume the consequences which would have resulted from their knowledge of that relation as of the time of the transactions in question.

It seems to follow that the defense has no support in the position that notice was imputed to the plaintiff that the bankers’ checks were made pursuant to an understanding, fraudulent on the part of Monson, which would defeat their apparent purpose and effect as such.

The plaintiff received those instruments for value, and is a holder of them in good faith.

They in fact were the product when made of his money deposited, and were transmitted to him as such. By them was expressed the liability and undertaking of the makers to pay the respective and equivalent amounts so deposited with the bankers who made them. The plaintiff was at liberty to assume that the liability to pay them would continue until they were presented for payment. This, as between them and the plaintiff, the bankers were in view of the usual methods and course of business required to understand. No reason appears for apprehension on the part of the plaintiff to the contrary. Nor is it seen that the indiscreet and remarkable confidence of the bankers in Monson’s promise to return the drafts can legitimately be available to prejudice the plaintiff’s claim founded upon them.

For these reasons, being unable to concur in the opinion adopted by a majority of the court, I think the judgment should be reversed and a new trial granted, costs to abide the event. •

Judgment appealed from affirmed.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    William H. Meaker, as Executor, etc., of Samuel Stokes, Deceased, Appellant, v. Nancy A. Fiero, Impleaded, etc., Respondent.

      Usurious agreement — the substance and not the form of a transaction, considered— immaterial that no money changes hands — what witness is not disqualified.

    The law looks not to the form of a transaction, but to its substance.
    By one transaction, one Mrs. Fiero paid her debt to one Hoskins, and he secured an indorsement upon account of his indebtedness to one Stokes, and Stokes obtained a bond and mortgage given by Mrs. Fiero, all for the same amount.

      Held, that the transaction was the same whether or not such amount was actually paid from one to the other of the parties, and amounted to a loan of said sum by Stokes to Mrs. Fiero.
    "Where a person has a remote or contingent interest only in a usurious agreement, he is not disqualified under section 829 of the Code of Civil Procedure from testifying in regard to a personal transaction with a deceased person in respect to the same.
    Appeal by the plaintiff, William H. Meaker, as executor, etc., of Samuel Stokes, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cayuga on the 6th day of October, 1893, upon the report of a referee, dismissing the plaintiff’s complaint upon the merits and for costs.
    The action was brought for the foreclosure of a mortgage for $800 given by the defendant, Nancy A. - Fiero, to Samuel Stokes, the plaintiff’s testator. The defense was usury.

      I/t/on & Pierce and John D. Teller, for the appellant.

      F. D. Wright, for the respondent.
   Lewis, J.

The defendant, Mrs. Fiero, was the owner of real estate in the city of Auburn, on which there was a mortgage.

Upon the sale of the premises, upon the foreclosure of said mortgage, James IT. Hoskins became the purchaser under an arrangement with Mrs. Fiero that he would bid in the property and would convey it to her upon payment to him of the sum of $800, the amount of his claim upon the property. The testator, Stokes, was at the time the owner and holder of a bond and mortgage made by Hoskins for the sum of $2,500, not at that time due. Stokes was desirous that Hoskins should make a payment upon his bond and mortgage of $1,500.

Hoskins informed Stokes of his relations with the Fiero property, and agreed that if Mrs. Fiero would consent so to do, that he would convey to her the Auburn premises and take her bond and a mortgage running to Stokes for the sum of $800.

It was agreed between Hoskins and Stokes, that if. Mrs. Fiero consented so to do, Stokes should receive the bond and mortgage from Mrs. Fiero with $700 in money to be paid by Hoskins as a payment of $1,500 upon his said $2,500 bond and mortgage.

Hoskins thereupon conveyed the premises to Mrs. Fiero; she executed the bond and mortgage to Stokes, and Mrs. Fiero, Stokes and Hoskins met at Mr. Hoskins’ office.

Hoskins was called as a witness by Mrs. Fiero on the trial and testified as follows as to what occurred at that interview: “ I went over to the bank and got seven hundred dollars; laid it with the mortgage and bond, Exhibits 1 and 2, on my desk; also the deed. I passed the bond and mortgage and the money towards Stokes. He shook his head and said ‘No.’ I handed the deed to Mrs. Fiero and she said: ‘No; I want to know something about that present.’ I said: ‘ Mrs. Fiero, Stokes wants a bonus on this mortgage.’ I so called it; he called it a present.

“ Mrs. Fiero got up and came over towards him and said: ‘ What is it, Mr. Stokes ? ’ He replied: ‘ I am always in the habit of taking a present when I take a mortgage. I want one now.’ She said: ‘ How much do you want, Mr. Stokes ? ’ and he answered ‘ Twenty-five dollars.’ She said: ‘ I have not got twenty-five dollars — all I have in the world is fifteen.’ There was a pause. I says, ‘ Sammy, don’t be a hog. If fifteen dollars is all the woman has got, take it and not be a hog! ’ I was out of patience with him. He then said: ‘ Well, give me the money.’ She then took the money out of her pocket and gave it to him. He then picked up the bond and mortgage and seven hundred dollars. I then wrote the indorsement on the mortgage, ‘Exhibit 3,’ and he signed it then and there and went out of the office.”

Frederick IT. Kennedy testified that he was present at the interview referred to by the witness Hoskins; that they were talking about the $800 mortgage Mrs. Fiero was giving to Samuel Stokes.

His account of tlie affair was substantially that related by Mr. Hoskins.

It is the contention of the appellant that the transaction did not amount to a loan or forbearance of money for the reason that no money in fact passed between the parties:

We think the transaction, in effect, amounted to an advancement by Stokes to Mrs. Eiero of the sum of $800, for which she gave her bond and mortgage for the payment of that sum with interest.

Had Stokes handed to Mrs. Eiero $800 in currency, and Mrs. Eiero had handed the money to Hoskins, and Hoskins delivered it to Stokes, and the indorsement had been made as stated, it would be conceded that the defense of usury was established.

As the law looks not to the form of the transaction but to its substance, was not what occurred in substance and effect the same thing ?

Mrs. Eiero by the transaction paid her debt to Hoskins, and Hos-kins secured an indorsement upon his indebtedness to Stokes, and Stokes obtained the bond and mortgage of Mrs. Eiero for the $800, with interest, and in addition to the lawful interest demanded and received the fifteen dollars bonus.

The referee held, and we think correctly, that it amounted to a usurious agreement for the loan and forbearance of money, and that the bond and mortgage were usurious and void. The plaintiff objected to Mr. Hoskins testifying to the transaction between Mr. Stokes and Mrs. Eiero upon the ground that he was interested in the event of the action and was tlie person from, through or under whom the defendant derived her interest or title. The subject-matter of the litigation was the bond and mortgage.

Hoskins, after they had been accepted by Stokes, had no further interest or concern in them. He had conveyed his interest in the premises to Mrs. Eiero before the bond and mortgage were accepted by Stokes, and had received his pay in full from Mrs. Fiero.

He certainly had no direct interest in the result of the action.

It is the contention of the appellant that he, at least, had a contingent or remote interest; that the bond and mortgage of Mrs. Fiero, having by the arrangement with Stokes been indorsed upon the $2,500 mortgage as a payment, that the avoidance of the security because of usury had the effect to revive his indebtedness to Stokes to that amount.

Mrs. Fiero, in good faith, took title to the premises and paid her debt to Hoskins by her bond and mortgage. Hoskins was not a party to the usurious agreement between Mrs. Fiero and Stokes. He had conveyed to Mrs. Fiero all the interest he had in her land, and because Stokes saw fit to demand usury of Mrs. Fiero, and in consequence is not able to recover his money, Mrs. Fiero’s indebtedness to Hoskins is not thereby revived. If so, he is the only party who is to suffer by an usurious agreement to which he was not a party.

Had Hoskins been the maker of the $800 bond and mortgage, and they had been avoided because of usury, the rule contended for by the appellant might apply; he would in that case have been a party to the usurious agreement which he was instrumental in having declared void.

The most that can be claimed is, that Hoskins had a remote or contingent interest; such an interest did not disqualify him. (McGlynn v. Seymour, 14 N. Y. St. Repr. 705-707; Hobart v. Hobart, 62 N. Y. 80; Wallace v. Straus, 113 id. 238; Connelly v. O'Connor, 117 id. 91; Beakes v. Da Cunha, 126 id. 293.)

Hoskins was not the person through or under whom either of the parties derived their title or interest in the subject-matter of the litigation.

The bond and mortgage in controversy were given by Mrs. Fiero to Stokes. Hoskins had no direct interest in them.

The case of Smith v. Cross (90 N. Y. 549), to which we are-referred by appellant’s counsel, does not sustain his contention. The witness, Wilson, in that case had a direct interest.

He was the maker of the bond and mortgage, and was, at the time they were given, the owner of the premises upon which the mortgage was a lien. After negotiating the bond and mortgage, he conveyed the premises upon which the mortgage was a lien, with a covenant of warranty, to the defendant. He was, therefore, directly interested in defeating the mortgage.

We find nothing in the plaintiff’s exceptions requiring a reversal of the judgment.

It should be affirmed, with costs.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Judgment appealed from affirmed, with costs.


author: Dwight, P. J.:

text:
    Sophia E. McGucken, as Administratrix, etc., of William H. McGucken, Deceased, Respondent, v. The Western New York and Pennsylvania Railroad Company, Appellant.

      Negligence — disobedience of 07'ders — duty of the engineer, toioa/i'ds one riding on a locomotive without authority.

    An action to recover damages resulting from personal injuries sustained by the plaintiffs intestate cannot be maintained against bis employer where the undisputed evidence upon the trial thereof shows a disobedience of the orders of the employer, and a violation of duty on the part of the deceased, without which the injury complained of would not have happened.
    Where the engineer of a locomotive finds a person on the engine, who is there without authority, he is not bound to stop his engine and put him off.
    Appeal by the defendant, The Western’New York and Pennsylvania Raih-oad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 9th day of June, 1893, upon the verdict of a jury for $4,000, after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 23d day of June, 1893, denying the defendant’s motion for a new trial-made upon the minutes.

      8. 8. Rogers, for the appellant.

      R. Vcm VoorMes, for the respondent.
   Dwight, P. J.:

The action was to récover damages for the death of the plaintiffs intestate, William H. McGucken, due, as alleged, to the negligence of the defendant.

The deceased was, and had been for about a year and a half, in the employ of the defendant as a “wiper” in the engine house at Rochester. The men so employed are sometimes called “ hostlers,” and their duty, as the name imports, is to take care of the locomotive engines when housed between trips; to wipe the machinery, bank the fires, and keep up the necessary supply of water in the boilers so that the engines may be ready for immediate service when required. On the day of his death McGucken was directed by his foreman to go to Portage to take care, that night, of engine No. 91, in place of a wiper at the engine house at that station who had been taken sick. For that purpose he wasfurnished with an employee’s pass, which entitled him to ride free on the passenger train which was to be drawn to Portage by the same engine, No. 91. In pursuance of his orders he took his seat in one of the passenger cars of the train and rode to Nunda, the last station on the road before reaching Portage. There he left the passenger car, and, without orders or invitation from the engineer, took a seat in the cab of the engine on the fireman’s side of the boiler. The engineer, discovering his presence after the train' was on its way to Portage, asked him what he was there for, and told him it was no place for him, but, learning that he was going to take care of the engine that night, told the fireman that, since he was there, he had better show him how the injector worked, which he did.

Shortly before the train reached Portage it collided with a freight train going in the other direction, the engine of the passenger train was overturned, and the plaintiff’s intestate was crushed beneath it and killed. No other car of the train was overturned or thrown from the track, and no one in either of the passenger cars was injured.

A rule of the company, which had been in force for several years and was duly promulgated, forbade any person to ride on the engine without an order from the superintendent, except the engine man, fireman, assistant engineer and supervisors on their respective divisions, and conductors in the discharge of their duty.”

The collision was due to a mistake in the transmission of orders for the movement of the trains, and it may be conceded, for the purposes of this review, that the fault was attributable to the defendant, and that the fact of negligence on its part was established, but it is still impossible that the plaintiff’s recovery should be sustained, for the reason that the undisputed evidence shows a disobedience of orders and violation of duty on the part of the deceased, without which the injury complained of could not have been sustained.

He had no right to be on the engine. To be so was in direct violation of a rule of the company with which he must be supposed to have been familiar. He was a passenger — though a free passenger — and his place was in the passenger car. Had he remained there, he could not have been crushed under the engine, and, as the evidence tends to show, lie would have been safe from injury of any character. He betook himself to the engine at his own risk, and there is nothing in what occurred after the engineer discovered him there which at all affects the situation. The engineer was not bound to stop his engine to put him off, and there was no stopping place until Portage was reached. Such being the case, it was proper enough to utilize the opportunity to point out to the deceased the peculiarity in the injector pipe, which otherwise would have been explained to him after reaching. Portage. But this in no manner excused his violation of the rule which forbade his riding on the engine, nor rendered the risk which he assumed in doing so any the less his own.

The question here considered was raised by the defendant’s motion for the direction of a verdict on the ground that the deceased was guilty of contributory negligence in riding on the engine, and by several exceptions to the charge and to refusals to charge as requested on the same point.

For the error thus indicated, the judgment and order appealed from must be reversed and- a new trial granted.

Lewis, Haight and Bradley, JJ., concurred.

Judgment and order appealed from reversed and new trial granted, costs to abide event.


text:
    Martin D. Chace, Appellant, v. The Kerr Salt Company, Respondent.

      Action to restrain the diversion of water — when not maintainable — when the use of the water of a streami is damnum absque injwia.

    In an action 'brought to obtain a perpetual injunction restraining the maintenance of a dam on a creek, and the diversion of the waters thereof from their natural channel, it was proved that the defendant used certain of the water upon the premises through which the stream flowed, but that substantially all of the water used was returned to the stream.

      Held, that the complaint was properly dismissed.

      Qucere, whether, in view of the character and importance of the enterprise in which the 'defendant was engaged, and the fact that none of the water was diverted into other channels, or in any manner carried away for use elsewhere than upon the premises, through which it naturally flowed, the use made thereof by the defendant was not a reasonable use, and whether the loss to the plaintiff was not damnum absque injuria,.

    Appeal by tbe plaintiff, Martin L). Chaoe, from a judgment of tbe Supreme Court in favor of the defendant, entered in the office ■of the clerk of the county of "Wyoming on the 5th day of December, 1892, upon the report of a referee, dismissing the plaintiff’s complaint upon the merits and for costs.

      G. JD. Newton, for the appellant.

      Frcmk W. Brown and N. Morey, for the respondent.
   Dwight, P. J.:

The action was for a perpetual injunction to restrain the defendant from maintaining a certain dam or obstruction to the waters of Allen’s creek in the town of Gainesville in Wyoming county, and from diverting the waters of said stream from their natural channel, and from doing any act by which those waters shall be prevented from flowing in their natural channel to the plaintiff’s mill.

The plaintiff is the owner of a small grist mill situated on Allen’s creek in the town of Warsaw; the defendant’s salt works are situated in the town of Gainesville higher up on the same stream. There are, under the surface of the earth at that point, immense deposits of rock salt, in strata of from fifteen to fifty feet thick, and at the depth of more than 2,000 feet. These are the sources of the defendant’s supply of raw material, and the means employed in raising it to the surface is the forcing of fresh water down to the deposit through wells bored for the purpose, and pumping it out again when saturated with salt. The brine thus obtained is evaporated in pans heated by steam, and the motive power of the entire works is derived from steam, all of which is produced from the water of the creek.

These are the several uses which are made of the waters of Allen’s creek as it passes through the premises of the defendant, of which the plaintiff complains, and it is contended on the part of the plaintiff that by such uses the water of the creek has been sensibly and materially diminished in its flow to and upon the premises of the plaintiff, to the prejudice of his rights as a riparian proprietor and to his loss and damage.

If these facts were established a question might possibly arise whether, under all the circumstances of the case — in view of the character and importance of the enterprise in which the defendant is engaged, and of the fact that none of the water of the stream is diverted into other channels, or in any manner carried away for use elsewhere than upon the premises through which it naturally flows — the use made of the water by the defendant is not a reasonable use, and whether the loss of water to the plaintiff is not dcmvrwm absque vryjuria.

But the referee has refused to find that - any such effect as that complained of results to the stream from the use made of the water by the defendant, and he has found as follows: “ It is not proven that in and by such use the defendant has perceptibly or materially diminished the natural flow of the waters of said creek as the same were wont to flow through or past the plaintiff’s premises, or the motive power in use by him for the operation of his said mill, or that the defendant in such use has in any manner unlawfully diverted the waters of said stream to the injury or prejudice of the plaintiff.” Of course, this finding is conclusive against the plaintiff’s case and leaves no further question open for discussion if it is to be sustained; and a careful review of the evidence satisfies us that it cannot be set aside. We think that the further finding of the referee to the effect that, substantially, all the water which is withdrawn from the stream on the premises of the defendant is returned to the stream on the same premises, is well supported by* the evidence. As the referee remarks in the brief memorandum of his views of the case, the direct evidence on the part of the plaintiff of a diminished flow of water to his mill, caused by the use of the water above, by the defendant, is of a very indefinite and unsatisfactory character, and the plaintiff is forced to rely mainly in support of his allegation upon the argument that there must be a considerable waste of water in the processes to which it is subjected on the defendant’s premises. But we think this inference is not necessarily to be drawn from the facts established. It is undisputed that all the water withdrawn from the stream by the defendant is either converted into steam in the boilers or evaporated in the process of making salt; and we think that the conclusion of the referee is well founded, that substantially all the steam and vapor of water thus produced is recondensed • on the premises, and either directly conducted, or, in obedience to natural laws, finds its way back into the stream before the premises of the plaintiff are reached.

Ye think the judgment appealed from must be affirmed, with costs.

Lewis, Haight and Bradley, JJ., concurred.

Judgment appealed from affirmed, with costs.


text:
    Joseph Crebarry, Respondent, v. The National Transit Company, Appellant.

      Negligence — evidence as to the sufficiency of a, scaffold.

    In an action brought to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant, it was shown that the plaintiff, an employee of the defendant, went up a ladder onto a scaffold and left his tools to be thrown up after him. Then, standing on the platform of the scaffold and leaning over to catch such tools, he put one hand on a stay lath, which had been left on by order of the foreman. The stay lath broke and the plaintiff was precipitated to the ground, receiving the injuries complained of.
    The work had been completed around the upper part of the scaffold, and it was the habit of the workmen as fast as they had finished the work to knock off the stay laths, which had nothing to do with the strength of the scaffold, and were not put up there for the men to hang or lean against.

      Seld, that the action was not maintainable ;
    That there was no evidence upon which the jury was warranted in finding that there was any neglect of duty on the part of the defendant in failing to provide a reasonably safe place for its employees to work.
    Appeal by the defendant, The National Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 7th day of March, 1892, upon the verdict of a jury for $1,000, rendered on a trial at the Cattaraugus Circuit, and also from an order made at the Cattaraugus Circuit on the 21th day of February, 1892, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

      - Charles S. Ca/ry, for the appellant.

      J. R. Jewell, for the respondent.
   Dwight, P. J.:

The action was for a bodily injury sustained by the plaintiff in falling from a scaffold on which he was at work for the defendant. He charges negligence to the defendant in the construction of the scaffold.

The work in which the plaintiff was employed was in “ cutting down ” oil tanks. These structures — some of them ninety feet in diameter — are composed of sheets of boiler iron, from four to five feet wide, riveted together in rings or rows, one on top of another, to the height of from twenty-five to thirty feet. To cut them down, the rivet heads on the inside of the tank are cut off or so reduced in size as to admit of the rivets being driven through, outward. This-is done from the top of the tank downward, and necessitates the construction of a scaffold around the entire inner circumference of the tank, which may be lowered by stages as one ring after another is removed.

The scaffold is composed of bents, of two posts or standards each, one against the inner face of the tank, the other four or five feet towards the center, with crosspieces nailed on at the proper height to support the planks on which the workmen stand at the successive stages of the work. As each one of these bents is set up it is connected to the last one by stay laths of inch boards, nailed on obliquely to the inside posts, which serve to hold the bents upright. "When one row or ring of the iron sheets has been unriveted and removed the workmen lower their platform of planks to the next tier of crosspieces below, and knock off the crosspieces from which the planks have just been lowered, which otherwise would be in the way of their passing from one part of the scaffold to another \ and it is their habit at the same time as they lower their platform to knock off the stay laths or braces as they are called by some of the witnesses.

At the time of the accident to the plaintiff one ring or row of sheets had been removed, the platform had been lowered one stage and the crosspieces knocked off, but the plaintiff testifies that the corresponding brace or stay lath, just at the point where he was at work, was left on by order of tbe foreman, because tbe platform was weak.” In wbat respect it was weak is not mentioned, nor is tbe fact at all material — except collaterally to account for tbe presence of tbe stay lath a little later — because tbe fall of tbe plaintiff, as will appear, was not due to any weakness of tbe scaffold.

Having lowered tbe platform tbe men went down to grind their tools before resuming the work. This done, the plaintiff went up again, by the ladder, leaving his tools to be thrown up to him. Then, standing on the platform and leaning over to catch the tools, he put one hand on the stay 'lath above him, it gave way and he fell to the ground, receiving the injury the responsibility for which he seeks to charge upon the defendant.

It seems to us that the action was not properly maintainable on the case as made by the record before us. The plaintiff seeks to maintain it on the ground that the defendant failed of its duty, as master, to provide a reasonably safe place for the plaintiff to do his work in. "We do not think there was evidence upon which the jury was warranted in finding that there was any neglect of duty on the part of the defendant in this respect. There is no complaint — certainly no evidence • — ■ that the scaffold was not strong enough in ■every way for the work which the plaintiff and his fellow-workmen had to do. The stay laths added nothing to the strength of the scaffold. They were not put there for men to hang upon or to lean ■against. Their sole purpose was to keep the posts upright, and there is nothing to show that they failed to accomplish that purpose completely. Besides, there is not sufficient evidence, we think, to show that the loose condition of the brace was the fault of the -defendant. There was direct evidence on its part that the braces were all securely nailed on in the first place, and the only evidence to the contrary was the fact that this one gave way under the pressure of the plaintiff’s hand, and that among the boards which lay at the foot of the scaffold was one — not very well identified with the brace which gave way — which showed only one nail h.ole in one end, a part of which was split off. But this still left the question open whether the loosening of the brace was due to a defect of original construction, or to something which had happened to it since ; and unless it was shown to be the former the fault was not chargeable to the defendant. Upon the evidence it seems to be much more probable tbat the brace had been loosened in knocking off the crosspieces, which the evidence shows were nailed close to the braces, or — unintentionally perhaps — in pursuance of the constant habit theretofore of knocking off the braces themselves as fast as the platform was lowered, than that it was originally nailed on so slightly that it. would give way under the pressure of a hand lightly laid upon it.

On the whole we think the evidence fails to make out a case of negligence against the defendant in the construction of the scaffold, and that for that reason, even if the defendant’s motion for a non-suit was denied, its motion for a new trial should have been granted. (Adsit v. Wilson, 7 How. Pr. 64, 66; Smith v. Ætna Life Ins Co., 49 N. Y. 211.)

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

Lewis, Haight and Bradley, JJ., concurred.

Judgment and- order appealed from reversed and new trial granted, costs to abide event.


text:
    Haskell H. Marks, by Guardian, etc., Appellant, v. Rochester Railway Company, Respondent.

      negligence — when a master is liable to am employee of his servamts — duty to pro* vide a safe place — degree of prudence required of a boy who is sui juris.

    Where a horse car cannot be drawn backward with safety to the passengers or property of the owner thereof with only one man to manage both the horse at one end and the brake at the other end of the car, the driver thereof has authority, from the necessity of the case, to procure assistance, and, in exercising such authority, stands in the place of his master, who is chargeable with the consequences to others of any abuse of discretion or neglect of duty in its exercise. The person who assists the driver at his request does not stand in the relation of a volunteer to the driver’s employer, but in that of a temporary servant.
    It is the duty of a driver acting for his employer to give such person employed by him a reasonably safe place in which to render the service required of him, and where the person so employed by the driver is a boy eleven years of age, it is a question for the jury to determine, in an action brought to recover damages for injuries sustained by him, whether the place in which he was put was or was not a reasonably safe place for a boy of his youth and inexperience.

      "Where the servant acts in the place of his master in employing another for a temporary service, he continues to hold that relation (and not that of a fellow-servant) to the party employed by him during the continuance of such employment, and his employer is chargeable with his negligence while that relation continues to exist.
    Although a boy may be sui juris, and, therefore, chargeable with any negligence on his own part which contributes to occasion an accident, still, in judging the acts of the boy, the law does not hold him to the same standard of prudence and good judgment as if he were a man of mature years and experience.
    Appeal by the plaintiff, Haskell H. Marks, by guardian, from an order of the Supreme Court, made at the Monroe Circuit and. entered in the office of the clerk of the county of Monroe on the 25th day of July, 1893, granting the defendant’s motion for a new trial.

      E. Van VoorMs, for the appellant.

      O. J. Bissell, for the respondent.
   Dwight, P. J.:

The action was to recover damages for a bodily injury sustained by the plaintiff when engaged in assisting one of the defendant’s drivers, at his request, in the management of his car. It was one of the small cars drawn by one horse, and operated by one man. Such a car has the driver’s platform and a brake on one end only, and a small platform at the other end, with steps for the entrance and exit of passengers. It is intended to be drawn only in one direction, and when the direction is reversed the car must be turned, end for end, by means of a turntable.

On the day of the accident in question two of these cars, running in opposite directions on a single track, met, by the mistake of one or both of the drivers, at a point where there was no turnout, and it became necessary that one of the cars should be drawn backward to some point where the other might pass it. But when one of these cars is drawn backward, the driver of the horse is separated from the brake by the length of the car, and is powerless to control its motion. The situation requires an assistant either to manage the brake or to drive the horse. In this case the driver called upon the plaintiff, a boy of eleven years of age, who was near by, cleaning snow from his father’s sidewalk, to drive for him, and, having hitched his horse to the hind end of the car, gave the reins to the plaintiff and himself took the brake at the other end.

The standing place of the plaintiff, as he drove, was the small platform before mentioned, not intended for. anybody to stand upon, but merely a landing for the steps on either side. It was three feet four inches long, crosswise the car, and one foot ten inches wide from the end of the car outward. It was protected on its outer side only by a sheet iron dash,” in front of the door of the car, about twenty inches wide and thirty inches high, curved on the top and surrounded by an iron rod separated two or three inches from its edge. This rod added a few inches to the width of the guard and served as a hand rod by which passengers might aid themselves in mounting the steps. There was nothing interposed between the boy and the steps on either side and, his hands being employed with the reins, he could hold on to the car only by the weight of his body inclined against the dash. The body of the car projected nearly two feet on each side beyond the ends of the little platform •on which he stood, and the steps were within the lines of the rails of the track.

While the car was proceeding in this manner a party of boys of the neighborhood, attracted, no doubt, by the novel apparition of a car drawn wrong end foremost, and driven by a boy of their acquaintance, jumped onto the platform where the plaintiff stood and began to make the car rock by jumping up and down, while some of them went inside. The driver, from his platform at the other end, halloed to them to get off and made a feint of rushing at them through the car to drive them off. At this, those of them who were within the car scurried out through the door in front of which the plaintiff stood, and all jumped off. In their haste they jostled the plaintiff off the narrow platform onto the ground. His leg was caught under the wheel and so crushed at the knee as to render an amputation necessary.

On the trial now under review the defendant, at the close of the plaintiff’s case, moved for a dismissal of the complaint on the following grounds:

1. That there was no evidence that the defendant was guilty of any negligence which occasioned the injury to the plaintiff.
“2. That, upon the plaintiff’s own evidence, he was neither a passenger nor an employee, but a mere volunteer, and the defendant owed no duty to the plaintiff either as a passenger or as employee.
“ 3. That there was no evidence that the defendant’s driver had any authority, express or implied, to employ the plaintiff to do anything in or about the management of the car or of the horse attached thereto.
“ A That, assuming that the platform of the car upon which the plaintiff stood was an imperfect and unsafe place for him to stand, the defect, if any, was open and visible, and the plaintiff assumed any risk there might be in standing there to drive voluntarily.
5. Assuming that there was evidence fróm which the jury might find that such an emergency existed as gave the driver authority to employ the boy, and that the driver was guilty of negligence in calling to the boys to get off from the ear while it was in motion, then the negligence from which the plaintiff suffered was the negligence of a co-servant, and the plaintiff could not recover.”

The court denied the motion, and the defendant’s counsel duly excepted.

The defendant introduced no evidence, and the court submitted the case to the jury as presenting the two questions: First, was the emergency in which the driver found himself such as to render it proper for him to call for outside aid, and, if so, second, was he negligent in placing so young a boy on the platform above described to perform the service which was required of him % The court also instructed the jury that if the emergency did call for the employment of temporary' help, then the driver, in employing such help, took the place of the master and his negligence was that of the defendant. Under this instruction the plaintiff was entitled to a verdict if the two questions submitted were answered in the affirmative, and such was the verdict of the jury. Thereupon the defendant moved for a new trial upon the minutes, and the court granted the motion on the ground that it was error to deny the motion for a nonsuit.

While we do not find the question altogether free from difficulty, we are of the opinion that the learned court was right at first; that the motion for a nonsuit was properly denied; that the case was properly submitted to the jury, and that the motion for a new trial ought not to have been granted.

It is very clear that the plaintiff was not a volunteer, but a temporary servant of the defendant, employed as such by one who had undoubted authority to employ assistance when the emergency required. "Whether such was the emergency in this case was a question properly submitted to the jury, but if the answer to it had been in the negative, the verdict might properly have been set aside as contrary to the evidence. It is matter of demonstration that this car could not have been drawn backward, with safety to the passengers and property of the defendant, with only one man to manage both the horse at one end and the brake at the other end of the car. Having such authority from the necessity of the case, the driver in exercising it stood in the place of the master, and charged the latter with the consequences to others of any abuse of discretion' or neglect of duty in its exercise. (Beach on Contributory Negligence, § 342; Thompson on Negligence, 1040; Bradley v. N. Y. C., etc., R. R. Co., 62 N. Y. 99.)

Such being the effect of the emergency mentioned, and its existence in this case being established by the verdict, the second question submitted to the jury became pertinent and the answer to it decisive of the action. We think the question was properly submitted to the jury and that the verdict in that respect was well supported by the evidence. The little platform on which the boy was placed was to some extent a dangerous place for anybody to stand upon while the car was in motion backwards, for the reason that the whole structure, including the steps, was within the line of the-rails, so that if he slipped or stumbled, or by any jar or shock was-thrown from the platform, some portion of his body or limbs was-likely to come in front, of the wheels. The other boys, who seem to have escaped without injury, must have leaped clear from the end of the car. It was the duty of the driver- — who, actingpn the place of the master, employed the plaintiff — to give him a reasonably safe place in which to render the service required of him; and we think it was a question for the jury whether the place in which he was put was a reasonably safe place for a boy of his youth and inexperience.

But there is another aspect of the case in which, as we think, the negligence of, the driver was still more apparent. He drove the other boys off the car while it was in motion, past the place where the plaintiff stood, at the imminent hazard of jostling him from his footing on the narrow platform; and this is precisely what did happen. It might have been avoided by stopping the car when the boys were ordered off. If what he did in this respect was negligence on the part of the driver, its effect to charge the defendant can be •avoided only on the ground which is contended for by the defendant, viz., that the driver no longer stood in the place of the master, and that his negligence was that of a fellow-servant with the plaintiff. But this ground we do not regard as tenable. Ye think that, acting in the place of the master when he employed the plaintiff for the temporary service, the driver continued to hold that relation to the master during the continuance of that temporary employment, and that the defendant is chargeable with the driver’s negligence while that relation continued to exist.

It is undoubtedly true that the plaintiff was sui juris, and, therefore, chargeable with any negligence on his part which contributed to occasion the accident in question, but it is equally true that, in judging the acts of such a boy, the law does not hold him to the isame standard of prudence and good judgment as if he was a man <of mature years and experience. But the doctrine of contributory negligence has no application in this case, except to charge the plaintiff — to an extent limited by his youth and inexperience — with an assumption of whatever risks of the employment were aj>parent to him when he entered upon it, and clearly those risks'did not include the danger of being jostled from the platform by a crowd of boys, driven from the car while it was in motion.

On the whole case we are of the opinion that the motion for a nonsuit was properly denied ; that it was proper to submit the case to the jury; that the verdict should not have been set aside, and that the order granting a new trial should be reversed.

Lewis and Haight, JJ., concurred.

Order granting a new trial appealed from reversed, with costs, and judgment ordered for the plaintiff on the verdict.


text:
    Eugene C. Denton, Appellant, v. Ontario County National Bank, Impleaded, etc., Respondent.

      _Property must he sold in the inverse order of alienation where there are successive mortgages.

    Parcels of land, lield by successive alienees subject to a lien on the whole, when resorted to for the satisfaction of such general lien, must be sold in the inverse order of alienation, and the principle is equally applicable to the case of successive mortgages, as to that of successive conveyances of the fee, of parcels of the mortgaged premises.
    Appeal by the plaintiff, Eugene C. Denton, from a judgment of the Supreme Court in favor of the defendant, entered in the office •of the clerk of the county of Ontario on the 26th day of July, 1893, upon the decision of the court after a trial at the Ontario Special 'Term.

      3. M. Field, for the appellant.

      L. O. Hall, for the respondent.
   Dwight, P. J.:

The action was to foreclose a mortgage of $1,000 on a parcel of "thirty-three acres of a farm of 208 acres, title to which was in the defendant bank as purchaser at the sales in foreclosure on two previous mortgages. No other defendant appeared in this action. The •plaintiff’s alleged standing to assert the lien of his mortgage, notwithstanding such previous foreclosures, is based upon the facts that the first of the mortgages foreclosed covered only the other parcel, of 1Y5 acres, of the farm, and that in the action to foreclose the other mortgage, which covered both parcels, the plaintiff was not made a party.

The narrative of the case is, briefly, as follows:

Previous to 18Y8 the farm was conveyed to one. Luman M. Durand in the two parcels mentioned, and in that year he and his wife, Letitia, executed to one Gilbert Gillett a mortgage of $5,000 on the 1Y5 acres, which was afterwards assigned to the defendant bank, the respondent here.

In 1886 Durand and wife executed to one Lansing two mortgages, •one for $6,000 and one for $2,000, each of them covering both parcels, of the same date and simultaneous lien, and at the same time the holder of the above-mentioned $5,000 mortgage executed an instrument which postponed the lien of that mortgage to those then executed.

In 1887-8 the respondent foreclosed the $5,000 mortgage, and on the sale became the purchaser of the 175 acres covered thereby, subject to the lien of the two Lansing mortgages, and entered judgment against Durand, the maker of the bond, for a deficiency of some $1,500. While that foreclosure was in progress Durand conveyed the thirty-three acres to his wife and she executed to the plaintiff, appellant, the mortgage thereon which is the subject of this action. This mortgage was dated and acknowledged April 12, 1888, but was not recorded until the sixth day of June of that year.

On the fourteenth day of that month Lansing commenced an action to foreclose his mortgage of $2,000, and in that action he failed to make the appellant a party, for what reason is not shown; but the appellant’s mortgagor, Mrs. Durand, was made a party and appeared by the same attorney who represents the plaintiff in this action, and who — as appears by his verification of the complaint herein— drew the mortgage to the plaintiff, and had it in his possession or under his control during all the progress of that action. By stipulation of the parties to that action the whole farm was sold as one parcel, and subject to the lien of the $6,000 mortgage. During the progress of that action no notice was given to the plaintiff therein of the existence of the mortgage in suit, nor was any claim made in behalf of the plaintiff herein for the surplus arising upon the sale in that action.; but Mrs. Durand, by the attorney before mentioned, claimed, and contested with the respondent, the right, to that surplus.

The value of the 175 acres is $50 per acre, and of the 33 acres $30 per acre, and the fair rental value of the whole farm is $2.25 per acre. The respondent has been in the occupation of the 175-acres since the foreclosure of the $5,000 mortgage, March 5, 1888, and of the whole farm since the sale on the foreclosure of the $2,000 mortgage March 2, 1889. The respondent has paid the interest on the $6,000 mortgage since he went into possession of the farm, and interest has accrued on the $2,000 mortgage since November 1,1887.

This case has been twice fried and is now for the second time in this court. On the former appeal it was held — affirming, so far, the decision of the court at Special Term — that upon the facts then appearing, which are included in those above stated, the plaintiff’s action could not be maintained for a foreclosure of his mortgage, but that — all the parties interested being before the court— it might be treated as an action to redeem upon such terms, to be fixed, as should conserve the equities of all parties. (See Denton v. Ont. Co. Nat. Bank, 44 N. Y. St. Repr. 33, opinion by Macomber, J.) It was also held — still as at Special Term — that the plaintiff while he should not be a loser neither could he be a gainer by the omission to make him a party to the previous action of foreclosure, but that he must be permitted to redeem on such terms as would have been available to him had he been made a party to the previous action; and the case was sent back to the Special Term for further proofs and findings bearing upon the terms of redemption to be allowed to the plaintiff. There was also, in the opinion cited, a strong intimation that the final disposition of the case must probably be controlled by the principle of equity that parcels of land held by successive alienees subject to a lien on the whole, when resorted to for satisfaction of such lien, shall be sold in the inverse order of their alienation.

That principle has been fully and, we believe, correctly applied to this case on the trial now under review. The court has found that, by virtue of the $5,000 mortgage on the 175 acres, executed to Gillett, postponed to the lien of the two Lansing mortgages, and assigned to the resjiondent, and by his foreclosure thereof and purchase of the mortgaged premises on the sale, the respondent became entitled to be regarded as the alienee of the 175 acres as of the date of the postponement of the lien of that mortgage, and pro tanto its amount. There seems to be no question of the applicability of the principle, above stated, to the case of successive mortgages of parcels, equally as to that of successive conveyances of the fee. (Hart v. Wandle, 50 N. Y. 386; Stuyvesant v. Hall, 2 Barb. Ch. 155.)

Applying the principle to this case, the court held that the thirty-three acres being last aliened were the first to be applied to the satisfaction of the lien of the two Lansing mortgages, after first applying the equity of redemption of Durand in the 175 acres, which was of the value of $3,750,— or $8,750, the total value of the 175 acres, less $5,000, the amount of the respondent’s mortgage. Thereupon the court computes the total amount of liens chargeable-upon the thirty-three acres as between the plaintiff and defendant as follows:

Principal of the two Lansing mortgages................ $8,000
Interest paid by defendant on $6,000 mortgage........ 1,620’
Interest paid accrued on $2,000 mortgage............. 660'
$10,280
Deduct rental value of premises....................... 1,872
Net aggregate of liens.......................... $8,108
From which should be deducted value of equity of redemption....................................... 8,750
Which leaves the sum of........................ $1,658

to be paid by the plaintiff in order to redeem the thirty-three-acre parcel.

The method here adopted and its result is, we believe, correct, and it is plainly in accordance with the doctrine of the previous adjudication of this court.

It is true, no doubt, that, unless there has been or shall be "a sudden and surprising advance in the value of the thirty-three acres, the terms imposed render the redemption of the property out of the question; but that only demonstrates that the plaintiff has no-interest in the premises after satisfying the liens prior to his mortgage — in other words, that this action was unwisely brought. His complaint was, therefore, properly dismissed, with costs, unless, indeed, he is prepared to accept the alternative of redeeming on the terms prescribed.

We have examined the numerous exceptions taken by the plaintiff on the trial and to the findings of the court, and find none which seem to vitiate the disposition made of the case.

The judgment appealed from should be affirmed, with costs.

Lewis, Haight and Bradley, JJ., concurred.

Judgment appealed from affirmed, with costs.


author: Dwight, P. *J.:

text:
    David Shaw, Plaintiff, v. Oliver P. Outwater and Another, Defendants.

      An indorser of a promissory note guarantees its validity.

    An indorser of a promissory note cannot, in an action thereon, have a defense thereto on the ground of its invalidity for any cause, since, by his contract of indorsement, he himself guarantees its validity as well as its payment.
    Motion by the plaintiff, David Shaw, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance after a trial at the Niagara Circuit, where a verdict of no cause of action was rendered by direction of the court on the 5th day of September, 1892.

      P. P. Prong, for the motion.

      Q. G. T. Parleer, opposed.
   Dwight, P. *J.:

The action was against maker and indorser of a promissory note for 0100, given for “ seed grain.” The case is.one of a class familiar to the courts, but presents some novel features, which complicate the narrative if they do not materially affect the disposition of the case.

All the parties to this action successively yielded to the seductive inducements of a scheme in all respects similar to that known as the “ Bohemian Oat Swindle.” The pretended corporation at the bottom of the scheme in this case was introduced by its agents as the “ Pennsylvania Seed Company, Limited.” The agents of the scheme sold oats for seed at fifteen dollars a bushel, and gave what purported to be a bond ” of the company by which it agreed to sell for the purchaser, the next year, double the quantity of oats sold to him, at the same price per bushel which he paid, less thirty-three and a third per cent commissions, he to receive his pay in the notes, presumably of the purchasers of his product. The operation in this, case began with the plaintiff. In the fall of 1887, he, in company with another man, bought twenty bushels of the seed oats,” and gave their note for $300, which they paid when it .became due. Their product, or a portion of it, was sold the next fall (1888), by the agents of the scheme, to the defendant Crossman, on the same terms, and the plaintiff received, as his share of the proceeds of the transaction, Crossman’s note for $200. In the fall of 1889, ten bushels of Crossman’s product were sold to the defendant Outwater, and Crossman received therefor Outwater’s note for $100, which is the note in suit. When Crossman’s note, held by the plaintiff, was •■about to become due, he proposed to take it up if the plaintiff would '.accept another man’s note in part payment; and he offered the plaintiff his choice of two notes of $100 each, one of which was ■Outwater’s. The plaintiff consented to accept the latter if Cross-man would indorse it, which he did and delivered it to the plaintiff and paid the balance of his own note in money, and took it up.

Both .the defendants seek to defend on the ground of want of consideration for their respective contracts; that those contracts were procured by fraud, and that they were contrary to public policy.

In addition to the facts above briefly recited, the testimony on the part of the defendants tended to show that the agents of the scheme, when the oats were sold to them, respectively, represented the “ Pennsylvania Seed Company, Limited,” to be a duly incorporated company, and a reliable and responsible institution, and that those representations were false and fraudulent, but the evidence that such representations were made to the defendant Outwater was contradicted by the agent who was charged with making them.

Upon these proofs, the learned judge at the Circuit directed a verdict for both of the defendants. We think the defendants were not entitled to such a direction, but, on the contrary, that the plaintiff was entitled to a verdict in his favor against both of them.

The proposition that the contracts in question were void as against public policy is negatived by the decision of this court in case of Matson v. Blossom (18 N. Y. St. Repr. 726). The defense of want of consideration evidently fails as to both of the defendants. Out-water gave the note for .seed oats which he bought with a speculative intent, and Grossman indorsed the note in consideration of the surrender of his own obligation for the same amount. It is clear, we suppose, that Crossman could have no defense to the note on the ground of its invalidity for any cause, since by his contract of indorsement he himself guaranteed its validity as well as its payment. (Erwin v. Downs, 15 N. Y. 576; Remsen v. Graves, 41 id. 475.) And the only ground of defense which remained to Outwater, the maker, was that the note was procured from him by fraudulent representations, viz., as to the corporate character and responsibility of the company which gave him the “ bond ” upon which he relied. But the .case is devoid of evidence to show that the plaintiff had any knowledge either that such representations were made to Out-water, or that they were false. He had bought his seed oats two years before of the same company upon similar assurances which had been entirely fulfilled. There seems to be no ground whatever in the evidence before us for the charge, rather freely made in the argument of counsel, that the plaintiff was engaged in promoting the swindle of the “ seed grain business.” On the contrai'y, he was, as Orossman and Outwater were, a purchaser of seed grain, for which he gave his note as they did, and, so far as appears, in the same reliance upon the representations and “ covenants ” of the seed grain company. We find no difference whatever in the legal or moral status of the three in their relations to the scheme. All of them understood the mode of its operation. The defendant Out-water himself testifies that he knew that in order that he should profit by the transaction it must be repeated with some other person. He knew that Orossman had gone into the scheme the previous year, and that this year Crossman’s oats were sold to him, and that his note was to go to Orossman. He understood that whereas he was a purchaser of “'seed oats ” this year, he ivas to be seller next year, and his only query was “ where the thing would stop.” Unfortunately for his hopes, it stopped too soon for their realization; the “ company ” went out of business the winter after he bought his seed, and nobody came the next year to sell his product at fifteen dollars a bushel. This was the risk that all three ran, and the only disadvantage to Outwater was in the time when he purchased. His defense to this action on the record before us fails because he has failed to show that the plaintiff had any knowledge of the particular fraud perpetrated upon him, and, so far as appears, he had the same knowledge of the general nature of the business when he gave the note as the plaintiff had when he bought it.

The plaintiff’s motion for a new trial must be granted.

Lewis, Haight and Bradley, <LT., concurred.

Plaintiff’s motion for new trial granted, with costs to abide the event.


author: Dwight, P. J. :

text:
    Augustine Wright, Appellant, v. George W. Chase, Respondent.

      Motion to continue an action— discretionary — not remeimble by another court.

    A motion made by the plaintiff in an action, to continue tlie same in the name of the administratrix of the defendant, is addressed to the discretion of the court. Decisions of one court resting in discretion are not reviewable in another, unless-such review is specially authorized by law.
    Appeal by the plaintiff, Augustine Wright, from a judgment of the Chautauqua County Court in favor of the defendant, entered in the office of the clerk of the county of Chautauqua on the 10th day of June, 1893, with notice of an intention to bring up for review the interlocutory judgment; dated the 5th day of June, 1893, and an order entered in said clerk’s office on the 10th day of June, 1893, denying the plaintiff’s motion to continue the action in the name of the defendant’s administratrix.

      W. JB. Hooleer, for the appellant.

      A. R. Moore, for the respondent.
   Dwight, P. J. :

The motion was denied on the ground of laches.

The action, which was a common-law action on contract, was commenced in September, 1888. The answer pleaded a denial and a counterclaim, and issue was finally joined by the service of a reply in November, 1888. It was noticed for trial by both parties for the term pf the court held in the following February, and was on the calendar of that term, but went over by consent. From that time no step in the action was taken by either party until more than a year after the death of the defendant, which occurred in October, 1890; and in November of the same year his widow was appointed administratrix of his estate. On 'the 5th day of November of the next year, 1891, the plaintiff gave notice of a motion to continue the action in the name of the administratrix, but that motion was allowed to go down, and no further step of any kind was taken in the action until May, 1893, when the motion was renewed, and the order made from which this appeal was taken.

The opposing affidavit of the administratrix shows that, as was to have been, expected, the defendant was the most important witness in his own behalf, both to meet the evidence which might be given to establish the claim on the part of the plaintiff, which was for unliquidated damages for the alleged breach of an alleged oral contract between the parties, as well as to establish the counterclaim alleged on his own part. And in addition to the fact of the death of the defendant, more than two years after the action wras commenced, the same affidavit showed that another important witness for the defense had died before the motion for a continuance of the action was renewed, and that, if other witnesses were living, by whom any of the facts material to the defense could be established, they had become scattered, and the administratrix was ignorant of their whereabouts.

On the other hand, facts were stated in the moving affidavits which tended, in some degree, to excuse the apparent laches on the part of the plaintiff in not bringing the action to trial during the lifetime of the defendant, and in not moving promptly for its continuance after his death.

Upon all the facts thus appearing, the motion to continue the action was one addressed to the discretion of the County Court. That such a discretion existed, notwithstanding the apparently mandatory language of the statute, which provides for the continuance of an action in which the cause of action survives the death of a party (Code Civ. Proc. § 757), is not to be questioned, under the authority of such cases as Coit v. Campbell (82 N. Y. 509); Dyon v. Park (111 id. 350), and Duffy v. Duffy (117 id. 647). So that, if the order had been made by a Special Term of this court, we should have been called upon by this appeal to review the exercise of that discretion and determine whether it has been properly exercised in the particular case. But such, we believe, is not the duty or privilege of this court in the case of a discretion exercised by the County Court. So it was held in this court in the ease of Tucker v. Pfau (70 Hun, 59), and such is the doctrine of the Court of Appeals in Wavel v. Wiles (24 N. Y. 635), and Reilley v. D. & H. Canal Co. (102 id. 383, 386). In the latter case the court, in an opinion by Rapallo, J., says: “ The general rule is well settled that the decisions, of one court, resting in discretion, are not reviewable in another unless such review is specially authorized by law.” There is neither general nor special authority for such review in this case, and for that reason, if for no other, the order appealed from must be affirmed.

Lewis, Haight and Bradley, JJ., concurred.

Order appealed from affirmed, without costs to either party.