author: By the Court.—O’Gorman, J.

text:
    WALTER H. MEAD, as TRUSTEE, &c., v. JOHN RILEY.

      Decided January 18, 1884.

      Seal property—Grant of premises abutting on road—Description of what passes.

    Where the grantor of certain premises, adjacent to a road, the fee of which is in him, conveys such premises by a description beginning “at the corner formed by the intersection of the easterly line” of said road or street “ with the northerly line ” of a certain other street, and terminating as follows: “thence along the easterly line,” of said road to the place of beginning, etc., it will be held that the land intended to be conveyed is bounded by the side and not by the center of the road.
    The fact that the deed containing the above description also designates the property by numbers upon a certain map therein referred to, and the map represents the property as abutting upon the road, does not show a different intention.
    Before Sedgwick, Ch. J., Freedmax and O’Gorman, JJ.

      The question in contention in this case was submitted to the court in compliance with section 1279 of the Code of Civil Procedure. The determination sought was as to the amount of real property intended to be conveyed by a deed, which designated the lots therein referred to by their numbers upon a certain map, by which map it appeared that said lots abutted upon a certain road or street; said lots were also described in the deed by metes and bounds as more particularly set forth in the opinion, where the facts are fully stated.

      Anderson & Howland, for plaintiff.
    It is now well settled that a deed bounding a lot by the line or side of a street or avenue does not pass the title to the street or avenue (Jackson v. Hathaway, 15 Johns. 453; Van Arminge v. Barnett, 8 Bosw. 367; Anderson v. James, 4 Rob. 35 ; Coster v. Peters, 5 Id. 192 ; Sherman v. McKeon, 38 N. Y. 266 ; Wallace v. Fee, 50 Id. 694; Fearing v. Irwin, 4 Daly, 385 [aff’d 55 N. Y. 486]; English v. Brennan, 60 N. Y. 609; White’s Bank v. Nichols, 64 Id. 65 ; Mott v. Mott, 68 Id. 246 ; In re Dep’t Parks, 73 Id. 560).
    When lots are conveyed by numbers only on a map and are shown upon such map to abut or front on streets, the rule is that such grant will carry to the center, but when the land conveyed is designated generally by numbers upon a map, and such general designation is followed by a full written description, the numbers are to be entirely disregarded and the deed construed according to the written description (Sherman v. McKeon, 38 N. Y. 272; Whiting v. Dewey, 15 Pick. 428).

      A. B. Johnson, for defendant.
    To restrict a description of lands sold bounding upon a highway to the side of a street, the reservation must be in express terms (Bissell v. N. Y. Cent., 23 N. Y. 61; Mott v. Mott, 68 Id. 246; Miner v. Mayor, 5 J. & S. 200 ; Child v. Starr, 4 Hill, 378).
    Whether a grant takes to the center of the road is always a question of construction, and the intention of the grantor governs (Putzel v. Van Brunt, 40 Super. Ct. 502).
    The conveyance to Gilbert was of certain lots fronting on the Bloomingdale road, known on a certain map by certain definite numbers. True, this is followed by a description of the metes and bounds of the property, but this additional description did not limit the grant, but served definitely to locate the lots (Putzel v. Van Brunt, 40 Super. Ct. 502; 3 Kent Comm. 433 ; Paul v. Carver, 26 Penn. 224; Bissell v. N. Y. Cent., 23 N. Y. 61 ; White v. Godfrey, 97 Mass. 272 ; Cox v. James, 45 N. Y. 547 ; Perrin v. N. Y. Cent. R. R., 36 Id. 120; Smyles v. Hastings, 22 Id. 217; Lozier v. N. Y. Cent., 42 Barb. 465 ; Varick v. Smith, 9 Paige, 550, 553; Hammond v. McLachlan, 1 San. 323 ; Sizer v. Devereux, 16 Barb. 160; Hathaway v. Power, 6 Bill, 454; Jackson v. Widger, 7 Cow. 723; Smith v. McAllister, 14 Barb. 434 ; Van Wyck v. Wright, 18 Wend. 157; Jackson v. Freer, 17 John. 29).
    A boundary line along the side of a street always carries to the center (2 Smith L. C. 228; Paul v. Carver, supra; Woodman v. Spencer, 14 Am. Law Reg. N. S. 411).
   By the Court.—O’Gorman, J.

In 1860, Broadway, between Ninety-first and Ninety-second streets, otherwise known as the Bloomingdale road, was a public highway. In that year, the trustees of Herman Thorn, deceased, sold to Gilbert Colgate land described in the deed of conveyance, as follows: “ Beginning at the corner formed by the intersection of the easterly line of Broadway with the northerly line of Ninety-first street one hundred and sixty two (162) feet and four (4) inches to the Tenth avenue ; thence northwardly along the westerly, line of the Tenth avenue two hundred and one (201) feet and five (5) inches to Ninety-second street; thence westwardly along the southerly line of Ninety-second street one hundred and forty-two (142) feet and three (3) inches to Broadway ; thence southwardly along the easterly line of Broadway two hundred and two (303) feet five (5) inches to the point or place of beginning, be the said dimensions more or less.” The trustees, grantors, were then seized of the land adjacent, forming the said highway. Through various mesne conveyances, containing the same description, the fee in the land so described has become vested in John Riley, the defendant.

The questioned now to be determined, is whether by such description, the fee in one half of the highway passed to the grantee of said trustees'subject to the public easement, or whether it remained in the grantor.

Since the execution of the first named deed, that part of the Bloomingdale road included in this controversy, has been closed by law, and the right in the public to use the same as a highway, has ceased. This fact, however, can have no bearing on the question expressly submitted to this court. If the title in the adjacent highway was not conveyed by the deed from the trustees of Thorn to Gilbert, in 1860, this part of the Bloomingdale road is conceded to be the property of the plaintiff as trustee. If it was conveyed by said deed to Gilbert, it is now the property of the defendant Riley.

By the deed of 1860, from the trustees to Gilbert, a plot containing sixteen lots of land was conveyed by metes and bounds as set forth on a certain map of land filed in the register’s office. On this map, the width and depth of each of said lots by feet and inches, is set forth, and the lines therein described include the whole space covered by said lots, and do not include any part of the highway as it then existed.

There has been much vagueness and uncertainty as to the law on this subject, and much divergence in the views taken of it by the courts of the different states. The latest decision on the subject in this state, is Kings County Fire Ins. Co. v. Stevens (87 N. Y. 287). The description in the deed under examination in that case, was as follows: “Beginning at a point oh the southerly side of, the W. road, adjoining land of S.; thence, after running certain courses and distances, the line ran along the land of one J. a certain number of feet to the W. road ; and thence along said road to the place of beginning.” It was held that the land intended to be conveyed, was bounded by the side, not by the center of the road. The learned judge delivering the opinion of the court, cites with approval, the dictum of Shaw, Ch. J., in Sibley v. Holden (10 Pick. 249), “when it (the description) starts at the side of the road and comes back to the road and thence at the line of the road to the point of beginning, the conclusion is inevitable that the road is excluded.” In cases when the grantor owns the highway as well as the lots specially described in the deed, it will be presumed that he intended to convey to the center of the highway, unless it appears from the language of the conveyance, or otherwise, that he intended to reserve it (Halsey v. McCormick, 13 N. Y. 296; Seneca Nation v. Knight, 23 Id. 498).

The point of commencement of the description is important, as for instance, when it began at the intersection of the exterior of two streets, the court held that the point thus established, was as controlling as any monument could be, and that all lines of the granted premises, must conform to the starting point (White’s Bk.v. Nichols, 64 N. Y. 65). See also Fearing v. Irwin (4 Daly, 385), where the description began on the north-easterly corner of two streets, and running thence along the northerly side of one of the streets, it extended only to the margin of the street. See also Anderson v. James (4 Robt. 35). When the point of commencement was given as the “ east side of Bloomingdale road,” that point was regarded as a fixed monument to mark the starting point of the survey, and it could not be transferred into the center of the road. In English v. Brennan, (60 N. Y. 609), the description began as at the southwesterly corner of Flushing, avenue ; running thence westerly along the avenue, etc., and it was held that the avenue was excluded.

In the case at bar, the starting point is at the corner formed by the intersection of the easterly line of Broadway, with the northerly line of Ninety-first street to Tenth avenue ; thence north along the westerly line of Tenth avenue to Ninety-second street to Broadway ; thence south alonge the westerly line of Tenth avenue to Ninety-second street; thence westwardly along the southerly line of Ninety-second street to Broadway ; thence south along the easterly line of Ninety-second street to .Broadway to the point of beginning. In this description, it is clear, from the commencement of these lines, that the word line is equivalent to the word side, in the cases above referred to, and the lines cannot possibly enclose land lying to the westward of the easterly side of the Bloomingdale road. In Smith v. Slocomb (6 Gray, 36, 38), the court held the conclusion to be inevitable that the road is excluded when the boundary starts at the side of the road and comes back to the road, and thence on the line of the road to the place of beginning. In Sibley v. Holden (supra), the court arrived at a similar conclusion.

The map, referred to in the description of the deed in the case at bar, may be consulted in aid of the court in arriving at a conclusion, and the boundaries as set forth in the map may be examined, and they certainly do not include any part of the Bloomingdale road.

The opinion of the superior court, in Tag v. Keteltas (48 Super. Ct. 241), agrees in principle with the decisions in the cases above cited.

The question in this case; is a question of the intention of the parties, to be gathered from the language of the deed, and if that be ambiguous, from all surrounding circumstances that can help to ascertain that intent.

In the case at bar, we are of the opinion that the deed of 1860, from the trustees under the will of Herman Thorn, did not convey from the grantor to the grantee therein an estate in fee in any part of the Bloomingdale road, being the premises in controversy, and the plaintiff is entitled to judgment declaring him the owner in fee of said premises, and that he do recover possession thereof, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


source: Caselaw Access Project

author: By the Court.—O’ Gorman, J.

license: Public Domain

text:
    WASHINGTON MANLEY, Appellant, v. WILLIAM TAYLOR, Respondent.

      Decided January 18, 1884.

      Partnership—proportion in which losses are to be'shared.

    Where one member contributes only mo.ney to the partnership and the other member contributes time, labor and skill, but no money, each contribution is to be set against the other, and in case of failure each loss is to be borne exclusively by the loser without auy right to contribution from the other; though the member contributing money has only one-fourth “interest in the business,” and the member contributing time, etc., has three-fourths.
    The rule however, is not inflexible, and each case i's to be decided from its own circumstances and the intent of the parties to be deduced therefrom.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    Appeal from a judgment entered on the report of a referee, adjusting the respective rights and obligations of the plaintiff and the defendant, as partners, on the dissolution of the partnership.
    The facts are stated in the opinion.

      Stickney & Shepard, for appellant.
    The referee’s finding was that defendant “ was to have a three-quarter interest in said business,” and that plaintiff was to have an interest of “ one-fourth in said business.” “A three-quarter interest” means the right to Chree-fourths of all profits and a liability to three-fourths of all losses.
    Though one partner contribute the capital and another the labor, it is not law that losses must be paid out of the capital, so contributed, until that capital is exhausted, before the partner not contributing any capital can be made to bear any losses (Whitcomb v. Converse, 119 Mass. 38; Nowell v. Nowell, L. R. 7 Eq. 538).
    As to Hasbrouck v. Childs (2 Bosw. 105), that case was decided in this court by a majority of one, and only held that losses on capital should be equally borne. The referee has held that the plaintiff should bear all the loss on capital.
    In Jones v. Butler (23 Hun, 367), the rule laid down in Nowell v. Nowell (L. R. 7 Eq. 538), is apparently approved ; and although capital was contributed in a proportion different from the division of profits, the losses on capital were still made to be borne in the proportion in which profits were divided. And the decision in Jones v. Butler, was affirmed by the court of appeals in 87 N. Y. 613. So, also, Neudecker v. Kohlberg (3 Daly, 407), quotes Nowell v. Nowell, with approval.

      John A. Balestier and Thomas Darlington, for respondent.
    The plain meaning of the agreement was, that plaintiff risked $1,500, and defendant risked his labor in a business. If there were “ profits,” plaintiff and defendant were to have their benefit in them. If there were “ losses,” plaintiff lost, to that extent, his money, and defendant his time and labor ; this was equitable.
    It is not necessary to travel abroad to find the law which, in this case, will guide this court; the superior court of the city of New York, in the year 1858, settled it, and that decision has never been questioned (Hasbrouck v. Childs, 3 Bos. 105).
    Jones v. Butler was decided under the particular agreement entered .into between the parties. The court in 23 Hun, say, “We think under such an agreement . ■ . . . the loss of capital is to be distributed equally.” And the court of appeals places its decision on the same ground. Neudecker v. Kohlberg is rather an authority in favor of respondent than against him. In that case there was no special contribution of skill and services against capital.
   By the Court.—O’ Gorman, J.

The plaintiff and the defendant agreed to go into business together, the plaintiff furnishing money “as a special deposit but to be used in the business.” He was to be a silent partner, and to take no active part in the business, and to have an interest of one-fourth in the business. The defendant was to be the active partner, giving his time and personal attention to the business and doing all that was necessary to make it successful, and was to have a three-quarter interest in said business. At the time of the dissolution of the partnership, the plaintiff’s special deposit amounted to $1,326. The business was not successful; no profits were realized, and the losses exhausted the available assets, including a considerable, share" of plaintiff’s “special deposit.”

The only question in the case, is whether the defendant can be called on to make good the deficiency in proportion to his three-fourths interest in the business.

The learned referee held that the plaintiff was entitled to take the assets, and after paying the claims of the creditors of the firm to apply the remainder to payment of the balance due and unpaid on his special capital account, and if any surplus remained, that it was to be divided between him and the defendant in the proportion of one-fourth to the plaintiff and three-fourths to the defendant; and the referee did not allow the claim of the plaintiff against the defendant, for contribution, in order to make up the deficiency, which appeared on account of plaintiff’s special deposit..

There has been some difference of opinion among jurists, as to the rule of equity to be applied in these cases, and the question was discussed with great care and erudition by Judge Hoffman in Hasbrouck v. Childs (3 Bosw. 105). The opinion sustained by the weight of authority, is that when one member of a partnership puts money into the business, but gives to it no time or attention, and expends upon it no skill or labor, while the other partner contributes no money, but does contribute his time, attention, labor and skill to make the business productive, that his_ contribution of labor, etc., is to be set against- the money contribution of the other ; that in case of failure, his loss of labor, etc., is to be set against the money loss of the other, and that each loss is to be borne exclusively by the loser without any right to contribution from the other. This rule is not inflexible, and each case must be decided according to its own circumstances, and the intention of the parties to be deduced therefrom ; and these were questions which it was within the province of the referee, in the case at bar, to determine on the evidence before him.

His decision was, in my opinion, correct, and the judgment should be affirmed, with costs of this appeal.

Sedgwick, Ch. J., and Freedman, J., concur.


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

text:
    LEVI H. PARSONS, Appellant, v. JOSEPH HAYES, Respondent.

      Corporations—payment of capital stock—fraudulent agreement for.—When stockholder has no action for.—Demurrer—appeal from order overruling, what may he considered on.—Appeal from interlocutory judgment entered thereon.—Bes adjudícala.

    An appeal will not lie from an order overruling a demurrer, but is properly taken from the interlocutory or final judgment based thereon.
    Upon an appeal from the judgment entered upon a decision overruling a demurrer to the answer the question whether the complaint contains a statement of a cause of action may be considered; this is so, where the complaint has been amended and a demurrer to the original complaint was overruled and the amended complaint contains the statements then held to set forth a cause of action.
    The plaintiff, who sues on behalf of himself and all other stockholders of a mining corporation, alleges that the individual defendants, being then trustees of the corporation, made an agreement with one C., that was carried out, that certificates should be issued to him by the trustees, which should represent that he was the owner of the 100,000 shares of the capital stock of the par value of $3,000,000, and he should convey to the company mining claims and property which in fact had no greater value than $50,000, as the parties to the transaction knew; that then O. turned over 30,000 shares to the defendaht corporation and 90,000 shares to be distributed among the trustees and himself, without payment therefor, in pursuance of the real agreement between the. parties; and that the shares received by the trustees were afterwards sold by them for large sums of money for their own benefit; that the individual defendants have sold the stock turned over to the defendant corporation, at $1 per share; that they have not accounted for the difference between the value of the stock and the "amount of property received (except as to said one dollar a share), nor for the gains and profits received by them from the sale of the stock turned over to them; that the corporation defendant is still under the control of the individual defendants.

      Decided February 4, 1884.
    The complaint asks for an accounting and general relief.

      Held, that as C. was a party to the agreement under which the stock was issued, and received the benefit of such agreement, he would not be entitled to bring such an action as this, and that plaintiff’s title to the stock he owns and on which he brings this action, having come through C., he can have no greater right than his assignor had.
    The plaintiff’s want of right to maintain this action does not affect any claim he may have for individual damage from misrepresentation by the corporation or third parties, nor does it affect the claim of creditors or the liability of the corporation or its trustees to an action by the attorney general.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
    Appeal by plaintiff from an interlocutory judgment in favor of defendant.
    There was an original complaint which was demurred to. The demurrer was overruled, but the plaintiff amended the complaint. The defendant answered. The plaintiff demurred to certain matters set up as defenses. Certain of the demurrers were overruled and others were sustained. Thereupon the following was entered: “ It is adjudged, that the demurrers of the plaintiff,” describing them, “be sustained and that the demurrer of the plaintiff as to the remainder of the separate defenses, contained in the several answers of said defendant, be overruled ; that no costs be allowed, etc.; that the plaintiff have leave to withdraw said demurrers as to the part or portions thereof overruled, within twenty days from the entry of this judgment, by giving notice, etc., and that said defendant have like leave to amend his several answers, etc.”
    The plaintiff now appeals from that portion of the above, that overruled the demurrers interposed by him.

      G. M. Harwood and John R. O’ Donnell, for appellant.

      Ludlow Fowler and V. Morawetz, for respondent.
   By the Court.—Sedgwick, Ch. J.

An appeal cannot be taken from an order overruling a demurrer. If there be error in not sustaining the demurrer, the remedy is an appeal from an interlocutory or final judgment, which is based upon the erroneous decision (Cambridge Valley National Bank v. Lynch, 76 N. Y. 514). The appeal in this case assumes that the matter appealed from is an interlocutory judgment. In reality it is not, but is only an order overruling certain demurrers of the plaintiff to certain defenses, as set out in the answers. “An interlocutory judgment is an intermediate or incomplete judgment where the rights of the parties are settled but something remains to be done ” (Ib.). An interlocutory judgment, so far as it goes, determines certain parts of the issues, in the same terms and methods, as the final judgment determines, the rest of the issues. These rules have been acted upon in several cases, which it is unnecessary to cite. The result of these considerations would be, strictly, that the present appeal should be dismissed. This was not asked by the respondent. Both parties argued the merits of the case.It is, however, necessary to keep these considerations in view when determining the appeal, as if an interlocutory judgment was the'subject of examination. For, the respondent claims that upon the appeal, it is proper to examine the complaint to see if it contained a statement of any cause of action. The appellant on the other hand, maintains, that such an examination cannot here be made, because an original complaint was demurred to by the defendant and the demurrer was overruled, that the present amended complaint contains the statements that in the original complaint were held to set forth a cause of action and that therefore it stands as the law of the case, that the present complaint gives a cause of action apparently. The original complaint having been by force of its amendment withdrawn, the demurrer to it and the decision thereon are taken from the case. The present respondents have been deprived by the amendment of an opportunity to be heard by appeal as to the correctness of the decision of the demurrer. Clearly upon the question as to whether an interlocutory judgment against the plaintiff is correct, the defendants have a right to show that in the face of the record, the plaintiff can never be entitled to final judgment.

The learned counsel for the appellant states the claim of the complaint as follows. The plaintiff sues on behalf of himself and all other stockholders of the corporation defendant, alleging that the individual defendants, then being trustees of the said corporation, immediately after the organization thereof, by agreement with one Catlow, issued to him the whole capital stock of said corporation, viz. $^¿300,000, in exchange for property worth not to exceed $150,000. That 90,000 shares of the stock were turned over to the defendant Hayes and his associates, and 20,000 shares to the defendant corporation by said Catlow, without payment therefor, in pursuance of the real agreement between the parties for the purchase of property and the issue of stock. That the individual defendants knew, or could have known, the value of the property, and that a portion of the stock was to be turned over as stated. That the defendants, trustees, represented the stock as full paid, and that the stock has been sold as full paid to innocent purchasers, including the plaintiff. - That the plaintiff purchased his stock regularly in the open market, relying upon such representations, and received regular certificates, that the stock was regularly transferred to him on the books of the corporation. That the individual defendants have* received large gains and profits from the sale of that por( tion of the stock turned over to them. That the individual defendants have sold the stock turned over to. the defendant corporation, or a large portion of it, at $1 per share. That the individual defendants have not accounted for the difference between the value of the stock and the amount of property received (except as to the $1 á share received froin the treasury stock), nor for the gains and profits received by them from the sale of the stock turned over to them. That the corporation defendant is still under the control of the individual defendants.

The defendants among other defenses pleaded that plaintiff purchased his stock, knowing the facts attending the transaction set out in the complaint.

By the terms of the complaint the plain tiff sues for himself and “ all other stockholders of the defendant company who may choose to come in and avail themselves of the benefit of the actions.” The plaintiff is excused from naming all of these stockholders, on account of the inconvenience of making a great number of persons parties ; but in legal contemplation, all of them are parties plaintiff, and all of them are in like case with the plaintiff named. These persons are stockholders, as it is called, having become so by transfer of shares from Catlow remotely or directly, and Catlow himself, if he have not transferred all his stock; unless as to Catlow, he is not to be deemed a party because he is not in like case with the plaintiff.

It will be convenient first to inquire, if Catlow as plaintiff could have maintained such an action. The facts would have been, that previous to the impeached issue of certificates of shares, the corporation, would have been in existence by virtue of the statute which declares (Laws 1848 c. 40, § 2, 3 Edm. 733) that when the certificate shall have been filed, the persons who shall have signed and acknowledged the same and their successors shall be a body politic and corporate in fact and in name, by the name stated in such certificate and by that name have succession and shall be capable of suing and being sued and they and their successors may have a common seal and they shall by their corporate name, be capable in law of purchasing, etc., property.

There was no stock or capital and there could be none excepting by third persons paying money or property for certificates of shares of the capital issued to them. There were then, of course, no shareholders. Gatlow and the trustees of the corporation, who, by the statute were the corporation, made an agreement that was carried out, that certificates should be issued to him by the trustees which should represent that he was the owner of the whole number of shares of the capital stock, or two hundred thousand shares of the stock which by the certificate of incorporation was to be $3,000,000, and he should convey to the company mining claims and property, which in fact had no greater value-than $150,000, as the parties to the transaction knew. In substance Catlow subscribed for the whole of the shares, agreeing to pay therefor, only property of the value named.

The statute declared that only money should be taken by the trustees to the nominal amount of the shares issued, or property, the actual value of which was equal, to that nominal amount. The agreement was unlawful and its execution could not have been enforced by either party to it. It was in fact made and executed to evade the statute.

It was a part of the agreement that upon the certificates being issued to Catlow he should transfer to each of the trustees certain shares. The trustees received these shares from Catlow and afterwards sold them for large sums of money for their own benefit. Upon the certificates being issued to Catlow he would become a shareholder. At least it is necessary to suppose, that although the transaction was forbidden by law, yet it was in fact done, and by if, Catlow became a shareholder. Upon the supposition that Catlow,, being the owner of all the shares excepting such as he hád transferred to the trustees, brought his action, he would claim that he had a right to demand that the company should bring an action against the trustees to compel them to pay the company money sufficient with the value of the mining property to amount to $3,000,000 which was by the certificate to be the capital, and also"pay to the company the amounts of money for which they had sold the shares he had transferred to them.

As the action would be by him declared to be for his benefit, it would ordinarily be necessary to say no more, than that he was not entitled to be benefited, through claiming an interest in what may be called damages for an act in which he had taken part, indeed which ho had promoted. But certain positions have been taken for the present plaintiff, which would apply to Catlow and those may be now examined.

It is said for the present plaintiff that the transaction was unlawful and invalid, and cannot be made lawful or be validated. If that be so, it would be true in the case of Catlow. It is nevertheless also true, that there is nothing unlawful or invalid, in the parties to an unlawful arrangement, being without a right to share in damages (to use a convenient word) which have flowed from the unlawful act.

There is at this point a distinction taken for the plaintiff, between the right of the corporation to damages and the right of a party consenting to the wrong, being entitled to damages. It is said that a corporation is an artificial person, a legal entity entirely different and distinct from the persons of which it is composed and the corporation as a distinct person may be injured by one or all of its members, and in either case has a right of action. Without stopping to ascertain the real meaning of this definition of a corporation, and assuming the other proposition to be correct, it is further to be ascertained if the corporation has been injured in the transaction or has suffered damage.

The injury or damage in one direction would be the consequence of issuing certificates by an invalid act that on the assumption of the plaintiff’s argument is incapable of ratification. If this be a void act, then it would be necessary to say, that the certificates issued were void and the corporation could proceed to issue certificates of shares in a legal manner. But such a view would disclose that Cat-low or the plaintiff would not be a shareholder and therefore not entitled to bring such.an action as the present.

Such an injury, of course, is not claimed, but it is claimed that the injury was the trustees issuing for property of small value certificates to the nominal amount of $2,000,000, whereas it was the duty of the trustees not to issue them except for $3,000,000. The complaint does not allege nor can it be presumed that if the certificates had been properly dealt with, any more could have been procured for them, than was in fact, and therefore it does not appear that any pecuniary damage was suffered. Or, in other words, it does not appear that if the trustees had performed their duty, of not issuing except for equivalent value, that the corporation would have had more capital than now.

Excepting these considerations it may be supposed that there was damage to the company from the trustees’ acts. Was there any injury under the facts ? It is true, that the corporation is something more than its trustees and shareholders ; but its property, chattels, money or choses in action, it owns not in its own interest but for the pecuniary benefit of the natural persons connected with it. It would be impossible to look upon the property rights of a corporation merely having regard to its being an ideal creature. It acts through natural persons. It acts for the benefit of natural persons. In truth natural persons compose it. The statute under which it was formed says this. The trustees who are trustees under the statute for the corporation are the trustees for the shareholders. In Karnes v. Rochester & Genesee Valley R. R. (4 Abb. Pr. N. S. 107), the court said, The directors stand in the relation of trustees to stockholders and between them exists the relation of trustee and cestui que trust.” As for this Butts v. Wood (38 B. 181, afterwards affirmed, 37 N. Y. 317), was quoted, it must have been said upon an identification of the stockholders and the corporation. The same case said (p. 110), “ The corporation does not stand in any fiduciary relation to its stockholders. Such a relation between the corporation and its corporators, is shown in a well considered opinion byVice-Chancellor McCoun, in Verplanck v. Mercantile Ins. Co. (1 Edw. Ch. 87), to be impossible.' The stockholders are in no sense creditors of the corporation, nor are they in the situation of partners. They are constituent parts of the corporation.” The language of Vice-Chancellor McCoun, in Verplanck v. Mercantile Ins. Co. (1 Edw. Ch. 87) was, “ The corporation is merely the creature of the law, a political body, not a natural body, made up of the compact entered into by the stockholders each of whom becomes a corporator identified with and forming a constituent part of the corporate body, and therefore when we speak of stockholders and the incorporated company of which they are the components, we refer to one and the same collection of persons. How then, can the relation of trustees arid cestui que trust exist, for such a relation requires separate and distinct persons or separate and distinct bodies to constitute it.” This case afterwards affirms that the directors are the agents and trustees of the corporation or stockholders.

In Railway Company v. Allenton (18 Wall. 234), the charter declared that all the corporate powers of the corporations shall be vested in and exercised by a board of directors, etc., and it also declared that the capital stock of the corporation may be increased from time to time at the pleasure of said corporation. The court held that the capital could not be increased by the directors without the consent of the shareholders. The opinion said that a corporation like a partnership is an association of natural persons, and that fundamental changes of corporate purposes cannot be made without the express or implied consent of the members.

Again, considering that the fundamental position, is that Catlow became in fact, shareholder to the amount of all the capital stock, the following was the relation between the parties. The corporation was the holder of the legal title of the property of the corporation, subject to corporate uses. Excepting this legal title for corporate uses, the shareholders were the parties interested in the property in fact, owning all of it, excepting the legal title, which as against them could be used for corporate purposes. The trustees were the statutory corporation. The shareholders were members or a part of the corporation. The corporation held the legal title, for the pecuniary benefit of the shareholders having no beneficial or pecuniary, benefit in it.

On the claim for the plaintiff, the thing possessed is the right of the corporation to have an action against its trustees, for damages for their acts which it is claimed were wrongful to the corporation. This right was, if it existed, held by the same tenure and for the same purposes that other property would be held. The corporation would have a bare title to it for the beneficial use of shareholders. It seems to be evident, that the corporation could not claim as damage to it's interest what would be damage to the beneficial interest where the owners of the latter had consented to the so called injury.

'In fact, however, the case is a little different in point of circumstance, although not essentially. The beneficial owner or shareholder having in advance of the occurrence, which but for their participation would j have created a cause of action in the corporation, promoted it and then participated in it, the conduct of the trustees never made a cause of action, because that conduct was not. wrongful as respects the shareholder.

The principles that have now been used are established by Scott v. De Peyster (1 Edw. Ch. 513); Hotel Co. v. Wade (97 U. S. 13); Kent v. Quicksilver Mining Co. (78 N. Y. 159). It is not necessary to give the reasoning of these cases. They are applicable here. It is supposed that in the last case there is a difference, in that acquiescence of shareholders was held to estop them in favor of innocent third parties. But it must be considered that after the. power to ratify or acquiesce is held to exist, the same principle would act in favor of third parties although not innocent, against whom damages for the act ratified were claimed. It seems to be clear that Catlow Could not maintain an action like this, first because he could not claim that the corporation should bring an action for his benefit on account of a transaction which he took part in, and second because the corporation would have no cause of action or right to damages.

f If the second proposition be true, then it necessarily follows there never having been any cause of action, or the right to damages having never accrued the claim cannot be revived in the future in favor of any person whether or not a transferee of shares from Catlow.

The plaintiff, however, because he claims through a transfer from Catlow cannot bring an action which Catlow could not have brought upon this case.

In Mann v. Currie (2 B. 298), the court said of the defendant that “if he became a stockholder by transfer to him of the stock of an original subscriber, he at once adopted his contract with the company and became substituted in his place, both as regards his rights and liabilities.” This was said in relation to the obligations of the defendant to fulfill the terms of the original subscription of his assignor. The reasoning that tends to the application of this conclusion in this case is just and seems to be clear. The shares which the plaintiff holds came to him through a certificate which was issued upon a particular arrangement under which the plaintiff claims, necessarily admitting it to have been effective. One feature of that arrangement was that the certificate should be issued to Catlow as his property for a consideration which the plaintiff claims was injurious to the corporation. As the plaintiff claims that the consideration although unlawful was sufficient to give a title which he maintains, he must abide by it as a fact and therefore in all its consequences. , It is not competent for him to take part and reject part as it was one transaction. Counsel for the defendant in a later case before the general term cited on this point: Hooker v. London Railway Co (7 Ins. 368) ; the opinions in Williams v. Telegraph Co. (48 Super. Ct. 349); Mech. Bank v. N. Y. & N. H. R. R. Co. (13 N. Y. 599); Hughes v. Copper Co. (72 N. Y. 207).

The claim that the corporation had aright to recover the-amounts of profits made by the trustees for themselves individually in a transaction which they were conducting for the corporation has not yet been noticed. What has been already said is to be applied to this claim. There is no doubt of this general rule that trustees are liable to respond to those for whom they act for any profits made by them individually, but this is limited by the proposition in the language of the court of appeals (Moody v. Smith, 70 N. Y. 598), “ a principal may give an agent express power to act in the business of the principal, so that the agent may reap a benefit, and in such case the principal is bound by the acts of their agent.” It has been already considered that the shareholders were the real parties interested and that their consent would bind the corporation, and it follows that the corporation would not recover from the trustees, what shareholders had arranged they should individually receive.

This opinion has had in regard solely the right of a member of a corporation to require that corporation to assert for his benefit, a claim for damages in which he may share, when in reality he stands in the shoes of one who took part in the transaction complained of. His want of right to maintain such an action does not affect any claim he may have for individual damage from misrepresentation by the corporation or third parties, nor does it affect the claim of creditors or the liability of the corporation or its trustees to an action by the attorney general.

Judgment affirmed, with costs.

Truax, J., dissents.

Ingraham, J.

[Concurring.] I concur with the Chief Judge on the ground stated by him that as Catlow was a party to the agreement under which the stock was issued, and received the benefit of such agreement, he would not be entitled to bring such an action as the present one, and that plaintiff’s title to the stock he owns and on which he brings his action, having come through Catlow, he can have no greater right as stockholder than his assignor had.


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

text:
    EDWARD MATERNE, et al., Appellants, v. BENNO HORWITZ, et al., Respondents.

      Decided February, 4, 1884.

      Contract for unlawful purpose, e. g. manufacture of spurious merchandise— when void as against public policy.

    The plaintiffs contracted with defendants, the former to sell and the latter to buy, presumably for sale to retailers, 400 cases of domestic sardines with “fancy labels ” in a French style on the boxes, to contain a statement in substance, that the contents of the box had been packed in France, in olive oil, by persons named in the label. It appeared upon the trial that imported sardines come mostly from France, and are worth in the market about fifty per cent, more than domestic sardines, which are fish taken and packed in Maine.. Held, that it was part of the contract that an unlawful object was intended, and part of the common purpose that the contract and the things done under it should be used to promote an unlawful purpose, and such contract cannot therefore be enforced.
    The illegality which violates a contract is not necessarily such as tends to a violation of law inflicting a penalty.
    Tracy v. Tallmadge, 14 N. Y. 162, distinguished.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appéal by plaintiffs from judgment dismissing complaint entered on direction of a judge before a jury.
    The action, was for the price of goods, tendered to plaintiff under a contract of sale.
    The facts appear in the opinion.

      Otto Horwitz, for respondents.
    The sardines in question being admittedly falsely labeled and designated, with the clear intent and purpose of imposing upon the public, by making them appear to be “ imported sardines,” and as containing, “ pure olive oil,” instead of their real contents and character, the defendants were justified in refusing to accept the same. The traffic in merchandise thus falsely labeled is distinctly prohibited by the laws of this state, and was so prohibited both at the time of the making of this contract as well as at the time of the tender of the goods in question (Laws 1862, ch. 306; am’d Laws 1863, ch. 209). A similar provision is found in section 438 of the present Penal Code, making it a misdemeanor to sell or offer for sale any package falsely marked, labeled, etc., as to the place or country where the goods were manufactured or produced, or the quality of grade, etc.
    The enforcement of this contract, whereby the plaintiffs would be enabled to sell the merchandise in question, thus fraudulently packed and labeled, would be against public policy, as well as a violation of the statutes, and will not be enforced by the courts. Where a contract sought to be enforced, springs out of a violation of the statutes of the state, the courts will leave the parties to such contract where it finds them, withholding from both its aid in enforcing it (3 Barb. 228). Corrupt intention is not material. It is enough that there is a contravention of the law (Seneca County Bank v. Lamb, 26 Barb. 595), If a statute prohibits a contract, it-is enough, though it does not, in express terms, declare such contracts void (Story Contr. § 613 ; Barton v. Port Plank Road Co., 17 Barb. 397 ; Griffeths v. Wells, 3 Den. 226).

      Rodman & Adams, for appellants.
    The Penal Code took effect May 1, 1882 (§ 727), and this contract is of June 30, 1881. The statutes of 1850,1862, 1863, and 1878, each contain the provision that it shall be a misdemeanor to sell goods falsely labeled, with intent to defraud or to enable another to defraud; and these statutes have been construed in Low v. Hall (47 N. Y. 104), where it was held .that the intent to defraud on the seller’s part must be proved affirmatively. And so in Rudderow v. Huntington (3 Sandf. 256), the bare knowledge by a vendor that the purchaser intends to máfce an unlawful use of the property sold, will not prevent a recovery for the purchase money (Tracy v. Talmage, 14 N. Y. 162 ; Ganson v. Tifft, 71 Id. 48). The goods plaintiffs tendered were precisely what the contract called for, and the transaction was not prohibited by any law. See also, Kreiss v. Seligman, 8 Barb. 439-449-450.
   By the Court.—Sedgwick, Ch. J.

In the case for the plaintiffs, the following facts appeared : The plaintiffs and defendants were wholesale dealers in sardines among other goods. They entered into a written agreement, by which the former were to sell and the latter to buy, 400 cases of “domestic sardines,” the boxes in the cases to have “fancy labels ” upon them. Domestic sardines were fish taken and packed in Maine, and “ fancy labels ” were decorated labels in a French style. The plaintiffs knew that these labels would contain a statement in substance that the contents of the box had been packed in France in olive oil by persons named on the label. One of the plaintiffs testified that imported sardines come mostly from France, and are worth in the market about 50 per cent, more than domestic sardines, an account of the quality and the duty. The goods tendered by the plaintiffs under the agreement, had upon them labels like those that have been described, and names that were apparently names of French packers, doing business in France, such as Pillour Freres, Concameau, Finistere. It did not appear that that there were any persons of that name.

These were not in the market and never had been, and the contract could not have been carried out with domestic sardines that had upon the boxes, labels that were substantially different from those that were upon the boxes tendered. From this and other facts the plaintiff claimed that the defendant knew, when the agreement was made, that it intended goods of the kind that were tendered. It is then to be inferred that the plaintiff understood that defendant had the knowledge referred to.

On the facts it is an irresistible inference that the defendant entered into the agreement, to the knowledge of plaintiff, with the purpose of selling the goods to others in the condition provided by the agreement.

The defendant denied that the agreement was illegal and could not be enforced, because the object of making the contract was that goods should be delivered, in a condition, which in the usual course of trade would be used as a means of dishonest practice upon consumers.

It must be kept in mind that on the facts of the particular case, the effect of the evidence is, that although wholesale dealers might not or probably would not be deceived by the labels as to the contents of the boxes, it must be inferred that the labels were used for some purpose, either as to dealers or consumers, and that purpose must have regarded consumers, as the dealers would not be deceived. The dealers would knowingly sell to the consumers who would be without knowledge. In fact the trade appears to be a large one in which these deceptive labels alone are used. If nobody is to be deceived, why not put on the boxes the truth ?

Consumers may not be wronged by eating American sardines, while they think they are eating French sardines. One may be as wholesome and savory as the other, but undoubtedly the labels are not used to instil this information into the minds of the eaters. They are used to get a higher price than would be given if the label told the fact as to the origin of the fish. The plaintiffs’ testimony disclosed that a firm, packing .American sardines, tendered a large quantity to a merchant in the trade, with the names of American packers on the label, but they were refused, the merchant declining to take any goods with labels with English names. This would not have happened if consumers would buy the goods at-the same price under either kind of label.

The illegality which invalidates a contract is not necessarily such as tends to a violation of law, which inflicts a penalty. For instance, contracts which tend directly to immorality, like sales of goods to a prostitute for the purpose of enabling her to carry on her business of prostitution, contracts in restraint of trade or marriage, marriage brokage contracts, a contract of two persons not to bid against each at auction under certain circumstances, are void. A more pertinent case in point of. circumstance is that an agreement made to defraud a creditor of one party to it, cannot be enforced. It might, however, be a serious question, whether the statute against obtaining goods by false pretenses would not embrace a case of knowingly selling goods under a fictitious label, that contained statements as to the goods.

In Tracy v. Talmage (14 N. Y. 162), the court of appeals determined that the bare knowledge by a vendor that the purchaser intends to make an unlawful use of the article sold, will not prevent a recovery for the purchase money. This is held, however, with the provisos, “ that the vendor has done nothing in aid or furtherance of the unlawful design, and also that it is not made a part of the contract that the goods be used for an unlawful purpose. It is quite evident from the opinions in that case, that the court did not mean that the terms of the contract of sale expressly refer to an unlawful object. The reasoning on the subject would support the proposition that the contract would be invalid if it were made with the intent that it should be used in or for some unlawful object.

. In the present case, the plaintiffs did not originally make the deceptive labels, but they knowingly procured them and in fact, furnished them, after binding themselves by contract so to do, and that was something that was in furtherance of an unlawful purpose of furnishing goods for customers in the market, in a state which was calculated to deceive those customers. In Tracy v. Talmage, the case was of a bare contract of sale, honest and lawful so far as its terms were considered, and which had nothing in itself, which provided for a train of circumstances, likely to end in an unlawful transaction. Here part of the contract, when the symbols expressed in it are turned into language, was that the goods should be furnished to the defendants ready for market, with a false representation as to their kind, that would be likely to deceive. For this reason it seems to me that it was part of the contract, that an unlawful object was intended and part of the common purpose, that the contract and the thing done under it should be used to promote an unlawful purpose.

If Rudderow v. Huntington (3 Sanf. 252), would call for other views, I would be bound to follow the higher authority of Tracy v. Talmage, thinking as I do, that the rules that have been applied are established by the latter case. An examination of the case of Rudderow v. Huntington, shows that it did not profess to touch a case where the contract was made with a wrongful purpose on the part of the vendor, as a part of a scheme likely to injure or deceive third persons.

I do not think there was evidence to show that it was the understanding that the defendants were to sell to consumers, but the usual result and foreseen consequence would be that the goods would be presented to consumers, by means of such sales as they should make.

My opinion is that the judgment should be affirmed with costs.

O’Gorman, J., concurred.


text:
    JOHN PETERSEN, Respondent, v. JOHN SWAN, Appellant.

      Decided February 4, 1884.

      Demurrer to answer—sufficiency of complaint may be considered.—Master and seaman—non-joinder of defendants when not ground of demurrer.

    The question of the sufficiency of the complaint may be raised where a demurrer to the answer is interposed.
    Under the law merchant, it is the duty of every ship-owner or master to provide for a seaman who becomes sick or wounded or maimed in the 'discharge of his duty, whether at home or abroad, at sea or on land,—if it be not by his own fault,—suitable care, medicines and medical treatment, including nursing, diet and lodging.
    Where a seaman sues an owner of a vessel for breach of an obligation which does not rest upon express contract but is implied by the law merchant from the relation of owner, or master, and seaman, a demurrer on the ground that all the owners are not made defendants will not lie.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Appeal by defendant from interlocutory judgment in favor of plaintiff, entered upon an order sustaining plaintiff’s demurrer to a part of an answer that pleaded a nonjoinder of certain parties who it was claimed should have been made defendants.
    The facts appear in the opinion.

      James K. Hill, Wing & Shoudy, for appellant.
    I. It is well settled that on a demurrer judgment must be given against the party committing the first error of substance. If the complaint is defective the defendant is entitled to judgment on the demurrer, even though his answer be insufficient (People v. Banker, 8 How. Pr. 258; Girvin v. Hickman, 58 Id. 244; People v. Booth, 32 N. Y. 397; Gleason v. Youmans, 9 Abb. N. C. 107).
    II. In Reed v. Canfield (1 Sumner, 195-201), it was held that if the seaman was injured in the service of the ship, he was entitled to be cured at the expense of the ship as far as ordinary medical means extended, but that the owners were not liable for consequential damages (See also 2 Pars, on Ship. & Adm. 80). Questions arising as to the rights and liabilities of seamen, masters and owners, in respect to casualties or sicknesses happening to seamen in the discharge of their duties, are peculiarly of maritime jurisdiction, and are ably considered, and the authorities collated in The City of Alexandria, by Brown, J., U. S. Dist. Ct., Southern Dist. N. Y. (17 Federal Reporter, 390, 393-397). “The seaman is entitled to be cured of all sickness or injuries occurring while in the ship’s service.” “ The rule is limited to the cure of the sickness or injuries, and does not include any compensation or allowance for the effect of the injury ” (Curt. Rights & Duties Seamen, 109, 110). “In none of the sea laws, or in the recognized authorities on maritime law, is there any indication of liability of the ship or her owners, beyond the expenses of the care, attendance, and cure of the seaman” (City of Alexandria, supra, 393 ; Reed v. Canfield, 1 Sumner, 195-202; Nevitt v. Clarke, Olcott, 316).

      It is true that in Brown v. Overton (1 Sprague, 462), U. S. District Court, Mass., it was held that where there was positive neglect on the part of the master, that the injured seaman, tivho was a mate, was entitled to indemnity for the injury, and he was allowed $600 as against the ship ; but that was a libel in rem, against the ship. And in Croucher v. Oakman (3 Allen [Mass.] 185), a similar claim was allowed in an action on contract. But neither of those cases would sustain this action. In The Ben Flint (1 Biss. 563, U. S. District of Wisconsin), it is held that the enforcement of payment of expenses of curing sick seamen, is a matter of admiralty jurisdiction. The court say: “ They are in the nature of additional wages.”
    III. In The City of Alexandria it is held that on common-law principles no recovery could be had for such an injury, for the reason that the master and seamen are all fellow servants engaged in the same general employment. “ It constitutes no exception .to the rule that the several persons employed are not in equal stations or authority, or that one servant is injured through the negligence of another, who is his superior in station,.to whom he owes obedience” (Cripson v. Babbitt, 81 N. Y. 521; McCosker v. L. I. R. R. Co., 84 Id. 77; Slater v. Jewett, 85 Id. 61).
    IV. If the complaint sets forth any cause of action at all, it is upon contract; and therefore the answer of non-joinder of co-owners is a good plea. See Croucher v. Oakman (3 Allen, 185); Sheffield v. Page (Sprague Dec. 285, 289).

      Hart & Price, for respondent.
    I. Depriving the plaintiff of the care of a physician was a violation of duty ; compelling him to perform the duties of a seaman in his plight was a tort of a grave character. In such cases as require surgical skill,' the sailor must be cured at the expense of the ship, and the medicine chest, is intended to be used merely in cases where the ship is remote from a port or a place having, a physician, or where proper medicines cannot be procured. Where the case of sickness or injury is of such a character as to require greater skill and care than a master of a ship and the means of a ship will permit, it is the duty of the master to send the seaman on shore at a port to be treated by a physician (Lamson v. Westcott, 1 Sumn. 595; Hamden v. Gordon, 2 Mason, 553; The Forrest, 1 Ware, 436). Owners are liable for the care of sick or disabled seamen (Hamden v. Gordon, 2 Mason, 354; Holmes v. Hutchinson, Gilpin, 450).
    Misconduct or neglect by the officers in the treatment of the seaman after he has been wounded in the service of the ship, becomes an additional cause of action against the ship, because a legal obligation to him then arises to afford suitable care and nursing, and if this be neglected the ship may be held to consequential damages (City of Alexandria, 17 Federal Reporter, 395; Brown v. Overton, 1 Sprague, 462). By the general rule of maritime law the owners of a vessel, as well as the master, are liable for injuries caused by the misconduct, negligence or unskillfulness of the master, provided the act be done within the scope of his authority as such (Thompson v. Hermann,. 47 Wis. 602 ; and cites Beawes Lex Mercatoria [4th London Ed.] 54; Stinson v. Wyman, Davies, 172; The Waldo, Davies, 161 ; Dusar v. Murgatroyd, 1 Wash. C. C. 13; The State Rights, Crabbe, 22-24; Desty's Shipping & Adm. 124; Niagara v. Cordes, 21 How. 7; Stone v. Ketland, 1 Wash. C. C. 142; The Ben Flint, 1 Abb. U. S. 126; Reid v. Canfield, 1 Sumner, 195; Brown v. Overton, Sprague, 462; Brown v. The D. S. Cage, 1 Woods, 401). The act or omission is that of the master also, irrespective of the question whether it was or was not practicable for the master to act personally or whether he did or did not do all that he personally could do to secure the safety of the servant (Fuller v. Jewett, 80 N. Y. 46). The common seaman in a vessel at sea is bound to submit to the judgment and discretion of the master and obey his orders (Thompson v. Hermann, 47 Wis. 602).
    II. The action is one of negligence and violation of duty; the plaintiff has the right to elect whether he will sue one or all the tort-feasors (1 Chitty's Pleading, marginal page 87; Creed v. Hartmann, 29 N. Y. 591; Roberts v. Johnson, 58 N. Y. 616; 2 Parsons Mar. Law [ed. 1859] 672 ; Kain v. Smith, 80 N. Y. 458).
   By the Court.—Sedgwick, Ch. J.

The complaint charges that the plaintiff was employed as a seaman on a bark, for a voyage to Java and back; that while on the voyage, he was thrown upon the deck, by reason of a sea striking the vessel, thereupon receiving injuries to his body and especially his arm ; that the master proceeded to treat him for his injuries but “ negligently and carelessly treated and used the arm and hand of plaintiff, and carelessly and negligently and wrongfully applied medicines bandages and other appliances to the wounds and injuries of the plaintiffthat “by reason of the said negligence and the insufficient and defective supply of medicines, the plaintiff’s hand and arm became worse so that when the vessel arrived at Batavia, in the island of Java, the same had become seriously diseased and in a highly dangerous and inflamed condition that the master detained the plaintiff on board and wrongfully neglected and carelessly refused to allow him, and prevented him, from being treated by competent physicians and surgeons, at Batavia ; that subsequently, upon the further prosecution of the voyage back “ plaintiff was disabled and unable to do duty and without any fault or negligence on his part, but nevertheless while so • disabled and while his injuries were increasing by reason of said negligent, careless and wrongful conduct of said master, the said master ordered and .compelled plaintiff to perform duty as a seaman, which for the said reason he was totally unable to perform without great injury to his health and body, and which aggravated the said injuries and prevented him from getting cured and causing him by the reason of the said conduct to be maimed for life.”

The complaint charged that the defendant was owner and employed the master, but the answer, in the defense demurred to, and therefore admitted to be true, in point of fact, averred that that there were other owners and named them.

The appellant’s counsel claims that the complaint does not state a cause of action. In Parsons on Maritime Law (vol. 1, 456), the law, upon the cases-cited in a note, is said to be that, there is by the general law merchant, an obligation upon every ship-owner or master to provide for a seaman who becomes sick or wounded or maimed, in the discharge of his duty whether at home or abroad, at sea or on land—if it be not by his own fault—suitable care, medicines and medical treatment, including nursing, diet and lodging. At first it was held, that the statute requiring a medicine-chest substituted this requirement for the new general requirement of law ; but it may be doubted, whether this is so in any degree, and it seems to be well settled that the general obligation of the law merchant remains in force, unless the medicine-chest is provided with medicines, and means of medical treatment which the particular case requires and there is sufficient skill on board to make a proper use of those medicines.”

The master was agent of the owners to perform the obligation that has been described. It was their duty to use through him suitable care. If, for sufficient reason, he should decline or omit to treat the seaman in any active way, he might be justified in that, but he could not lawfully treat him in a negligent manner. If he did as the complaint charges, it was negligence in an act within the scope of his employment-, for which the employers, the owners, were liable. This, may be applied to compelling the defendant to do the ordinary work of a seaman, when his injuries had unfitted him to do them, without making his state of body worse. This would not necessarily be a willful act, it might be inconsiderate or-negligent. If it were willful, it might still characterize an act which was within, the scope of the employment.

The duty violated was not one enjoined by the contract of shipping as a seaman, It had its existence outside of that contract and would have been the same if the defendant were a seaman with duties to the masters and owners by virtue of a contract made with a third party. It had regard to the fact of the relations of owner or master and seaman. For this reason, if for no other, the demurrer to the answer that pleaded in abatement, that there were owners beside the defendant and naming them, was properly sustained. Chitty on Pleading, 87, gives the rule, which is also given 1 Saunders, 291, “ where an action in the case is brought merely for the non-feasance of a contract and in order to support the action, a contract must be proved and is the basis of the suit (as in case for a breach of warranty on a sale, etc.), the joinder of too many defendants will be ground of non-suit, and it would seem that if a joint contractor be not included, the defendant may plead his non-joinder in abatement; for it is not competent for the plaintiff, in such an instance, to alter or obviate the rules of laws, with regard to the parties to be sued on a contract, merely by varying the form of his action, when in substance it is founded on the agreement. But it must appear from this declaration that the gist of the action is a breach of contract. And with regard to carriers and innkeepers, as their liability is founded on the breach of an implied common-law duty, in respect of their particular capacities, if they be sued in case for negligence, no valid objection can be made in respect to the non-joinder of a party.” Roberts v. Johnson (58 N. Y. 613) followed this rule. In the present case, the duty is implied by the law-merchant, irrespective of the provisions of the shipping articles. The terms of the latter, however, do not appear upon the record.

The parties to the appeal, have not raised the question as to whether that which is appealed from is an interlocutory judgment. From the hearing of the appeal, it is not to be deemed, that any opinion is implied, that it is.

Interlocutory judgment affirmed with costs.

Truax and O’Gorman, J., concurred.


text:
    HIRAM POOL, Respondent, v. G. WARREN WATSON, Appellant.

      Decided February 4, 1884.

      Direction of court to the jury to find a verdict for plaintiff—Dona fide holding for value, when must be proven.

    In a case where the defense is that the notes in question had never been delivered by the maker; that they had been placed in the custody of the payee, for certain purposes, and he had in fraud of the maker parted with them, and therefore the plaintiff could not recover unless he proved that he was a bona fide holder for value, and on the trial plaintiff neglected to furnish any evidence that he was a bona fide holder, but moved the court for a direction to the jury in his favor, that was granted.

      Held, that if on the testimony given, the jury, if it had not been directed, could have found, as a conclusion of fact, that the notes had not been delivered, or if the evidence fairly presented this question of fact, then» the case should have been submitted for the consideration of the jury, and the direction to find a verdict for the plaintiff was error.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Appeal by defendants from judgment entered in favor of plaintiff upon a direction by the court to the jury to find for plaintiff..
    The action was upon a promissory note. The defense in part was that the note had never been delivered by the maker ; that the maker had placed it in the custody of the payee for a certain purpose, and that the payee had in fraud of the maker parted with it; that the plaintiff could not recover without proving that he was a bona fide holder for value. "
    • After the plaintiff’s case was in, the plaintiff moved for a direction in his favor without giving any evidence as to his being a bona fide holder. The motion was granted and the defendant excepted.

      Moody B. Smith, for appellants.

      Childs & Hull, for respondent,
   By the Court.—Sedgwick, Ch. J.

On the testimony given, the jury were at liberty, in my opinion, to find these facts : The defendant Gr. W. Watson and the defendant Sheridan were shareholders of an electric light company. The financial condition of the company was bad. Its shares were or would soon be of no value, unless money were raised and lent to the company. An arrangement was made, not at first reduced to writing in any part. The defendant Watson was to lend to 'the company his two notes, in $2,500 each, payable to the order of defendant Sheridan. Sheridan, who was a large shareholder, was to sell to defendant Watson one thousand shares, and the latter was to pay for them, we will say, two other notes of $2,500, to the order of Sheridan. In fact, a writing to be hereafter referred to, provided that notes or cash were to be paid by Watson. With the money to be received by Sheridan from the discounting of the latter two notes, he was to lend part, say $2,000, to ffrb company. Sheridan and Watson were to agree to use their power as shareholders, together and in harmony. Thereupon, on October 28, 1882, the defendants Sheridan and Watson signed an agreement in writing that recited that Sheridan owned 3,085 shares and Watson “ has lately become and is now the owner of 1,932 shares,” and also that Sheridan “ has sold or caused to be sold to said Watson, 1,000 of the 1,932 shares of said stock now held-by him.” It then provided that they should act in a common manner as to the affairs of the company.

Contemporaneously the parties signed another agreement made in consideration of $1, and of the stipulations of the agreement already referred to, that Sheridan agreed to sell and transfer one thousand shares for the sum of $5 a share, “ and upon payment therefor, in the manner hereinafter stated, to deliver to said Watson certificates for said one thousand shares ; that Watson agrees to purchase and does hereby purchase the shares and to pay therefor ” either in cash or a promissory note made by said Watson payable in sixty days and indorsed by the third defendant, and that said “ stock is to be delivered and paid for on October 31,1882.”

Subsequently the defendant Watson made to the order of Sheridan, four promissory notes, one of which is the note in action, for $2,500, each, payable in ninety, not sixty days. Sheridan indorsed them, as the other defendant then did. Defendant Watson entrusted the notes to Sheridan for the purpose only of it being ascertained, whether they could all be discounted, and for what rate, and with the direction that none should be discounted unless all were. After some ineffectual effort to discount them, Sheridan, without further communication with defendant Watson, appropriated the note-in action and one other, to himself, and returned to Watson the other two, tendering and offering to transfer, at the time of this return, a certificate for the 1,000 shares. The tender and offer were rejected.

On this state of facts, my opinion is, it was a question for the jury as to whether the note had ever been delivered, and as to whether it had been delivered in payment for the shares, under agreement for the sale and delivery.

There was certainly enough testimony to go to the jury upon the question whether the actual first disposition of the note by Sheridan was not in fraud of Watson, so as, to entitle the latter to call upon the plaintiff to show that he was a bona fide holder for value. If the notes were delivered to Sheridan for the purpose of seeing as to its discount with the other, it was not a delivery to him as payee or to invest him with title or power and right of disposition.

To be sure, if it were the fact, that, as plaintiff’s counsel argues it was, upon the evidence, defendant paid the note upon his obligation to pay it under his agreement to buy the shares, of course the defendant was liable. But of this there was no irresistible evidence. The defendant denied it. The fact that the shares were not tendered, until after Sheridan had received the notes, was to be considered by the jury. There was no conclusive evidence that the defendant was bound to take the shares and pay for them. If there were, that is not conclusive to show that the payment was actually made. A payment is a voluntary matter and depends upon what was done actually. The account of the defendant had some argument for it, based upon the purposes of the parties and the probability of absolute purchase of the shares, as valuable property, before a preliminary investigation had been made to find if those purposes could be accomplished.

Against the conclusion that would follow these considerations, the principal argument is, that the defendant was so self-contradicting, that the jury would not have a right to find any fact on his testimony. Especially until the agreement for the purchase by him of the 1,000 shares were shown to him, on cross-examination, he insisted that the only written agreement was that one which referred to their acting together, and that the arrangement as to the four notes was made after and upon that. He was also confused in his testimony, and probably he stretched the case for himself, as most parties to an action do, when they testify. His self-contradiction consisted mainly in his substituting an oral agreement to buy, for the written agreement. On the whole, if the jury had found for the defendants a consistent and not improbable chain of facts might be found in the testimony. Although if the jury should say otherwise or discredit the defendant, the verdict would be sustained.

Judgment reversed, with costs to abide the event.

Truax and O’Gorman, JJ., concur.


text:
    SAMUEL K. SCHWENK, et al., Appellants, v. ROBERT NAYLOR, Respondent

      False representations — Contract sale real property — Implied covenant warranty—Exp-ess covenant—Title by estoppel—Trusts—Possession as notice of claim of title.

    Plaintiffs and defendant entered into an agreement by which the former were to purchase from the latter certain mill property in Florida, one condition of which agreement was that all the property mentioned in a list attached to the agreement should be found on the site as specified. The list contained the following: “These saw-mills have an extensive waterfront . . with wharf," etc. Held, that said water-front and wharf were intended to be conveyed.
    It was known that defendant had conveyed the property to a corporation of which he was virtually the owner as holder of the stock thereof, and plaintiffs were to receive in fact two-thirds of such stock and not the property in question. Held, that there was an implied warranty by defendant that he or such company had title to such water-front, etc.
    At the time of the conveyance by defendant to said company, he was in actual possession of said water-front, etc., and his conveyance to such company contained a covenant of warranty. In an action for false representations instating that the company owned said water-front, etc., the only testimony of substance was that about nine months after the consummation of the agreement between plaintiffs and defendant, the latter took a conveyance of such property from a third person, and paid for the same with money of plaintiffs’ or the company, he being at the time its agent. There was no proof that prior to the time of taking such conveyance, defendant knew that the company did not own said wharf property. Held, that the complaint was properly dismissed. Further held, that under the implied warranty in the agreement with plaintiffs and the express warranty in the conveyance to the company, upon the conveyance to defendant the company became the owner of the title, legal or equitable, by estoppel; and under the common law, presumably controlling in Florida, defendant became trustee for the company whose money was used in the purchase. Further held, that a subsequent conveyance by defendant to a third person could not divest the company of its rights, because the actual possession of the company was notice of its claim.

      Decided February 4, 1884.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Appeal by plaintiff from judgment for defendant, that the complaint be dismissed, entered upon direction of judge, at trial before a jury.
    The action was for damages from alleged false and fraudulent representations.
    The facts appear in the opinion.

      Joseph Fettrich and A. R. Dyett, for appellants.
    Where a party makes a false representation knowing it to be false, or positively makes it having no reason to believe it is true, it does not lie in his mouth to complain that the party defrauded relied upon the truth of what he said, unless it be perfectly clear that upon mere inspection he could have discovered the fraud.
    A vendee in a contract for the sale of land is not bound to know what land is contained in the description in his contract or deed, and fraud may be predicated upon representations that the description covers lands not actually included therein (Beardsley v. Duntley, 69 N. Y. 577).
    There was enough to authorize the jury to find that defendant made no mistake about the boundary, and that he intended to deceive and defraud the plaintiffs, and also that he knew the representations to be false. Intent and knowledge, from their very nature, are not susceptible of direct proof. They must always be proved by circumstantial evidence.
    “ Where a party to a contract in making a false representation is honestly mistaken, there is no ingredient of fraud in the case (Wakeman v. Dalley, 51 N. Y. 27; Marsh v. Falker, 40 ld. 566, citing Chester v. Comstock, in note ; Meyer v. Amidon, 45 ld. 169 ; Oberlander v. Spiess, ld. 175). This rule, however, does not permit him to make false statements recklessly or without some foundation for belief in them. Before one positively affirms the existence of a fact, he must proceed upon reasonable inquiry, and have some apparently good ground for his affirmation” (Hammond v. Pennock, 61 N. Y. 150, 151). To the same effect, and that a positive assertion by the defendant as of his own knowledge of an alleged fact, which is false, is a fraud at least, unless the defendant had some good ground for believing it true, that in such a case he is mistaken, is not enough to excuse him ; see Indianapolis, &c. R. R. Co. v. Tyng (2 Hun, 311, 318; affirmed 63 N. Y. 653); Oberlander v. Spiess (45 N. Y. 169, 175); Meyer v. Amidown (45 lb. 169).

      W. L. Snyder and R. B. Putney, for respondent.
    I. The evidence is,insufficient to establish a fraudulent intent in making the representations at the time they were made.
    II. The evidence shows that the plaintiffs did not rely upon the representations made by defendant,
    III. Even if the representations were false and the defendant relied upon them, still no cause of action was made out, because the evidence failed to show that the plaintiffs were damaged. ' Fraud without damage will not support an action (Bacon v. Bronson, 7 John. Ch. 201; Masterton v. Beers, 1 Sweeney, 406; People v. Cook, 8 N. Y. 67; 3 Wait's Actions & Defenses, 442; Taylor v. Guest, 58 N. Y. 262).

       See 49 Super. Ct. 98, appeal by defendant from order denying motion to vacate an order of arrest, upon which it was decided that the order of arrest should be vacated.

   By the Court.—Sedgwick, Ch. J.

I do not preceive that the plaintiffs have shown that they have suffered damage from the alleged false representations by the defendant.

The plaintiff and the defendant made an agreement for the purchase, by the former from the latter, of two thirds of a mill and its fixtures, and the real estate on which it stood, at Appalachicola in Florida. ■ One condition of the agreement was that Naylor having furnished a list of the property and machinery, which list was attached to the agreement, all the property stated on said list shall “be found there when said Kilpatrick and Scwenk, or one of them, shall visit the mill, and if not so found they shall be free to withdraw from this agreement should they so determine.”

The list contained the following particulars: “These saw mills have an extensive water front of some 2,000 feet immediately on Turtle Harbor with wharf, etc.” It is clear that the property intended by the agreement to be conveyed included this water-front and wharf.

When the agreement was made, Naylor, the defendant, had already, as all parties understood, conveyed to a manufacturing corporation, funned under the laws of this state, the title to the property that was intended by the agreement, and practically the plaintiffs were to get, not the land itself, but two thirds of the shares of the stock of the company. Naylor was at the time the owner of the shares he would transfer. Really the company and Naylor were one. There was therefore, an implied warranty by Naylor that he had title, legal or equitable to the water-front, or that the company had such title.

It is claimed that Naylor induced the plaintiffs to confirm the agreement and pay certain moneys under it, by representing that, in fact, he or the company had the title, to the water-front and the wharf upon it.

The conveyance by Naylor to the company contained his covenant of warranty.

At the time of the agreement the company, or Naylor, for himself, or for them, was in actual possession of the water-front referred to, and of the wharf thereon, and down to the time of the action, the only change made in the possession was that the plaintiff entered into actual possession and for the company. It is to be presumed that Naylor before his conveyance to the company was in actual possession claiming title. The presumption from possession is that the legal title is in the possessor.

The conveyance by Naylor to the company contained a description of premises by distance of chains and links, in direction by the points of the compass, and degrees from and to monuments, which were not explained on the trial. There was no proof, and the description unexplained does not show, that the land in dispute was not embraced in the lines of the deed. The fair inference is that the com: pany or the parties went into actual possession of whac the conveyance under which they claimed, described.

The claim of plaintiff was that damage accrued from the company not, in fact, covering the two thousand feet of water-front and the wharf. The only tes timony on this poin t that had any substance, was to the fact that about nine .months after the consummation of the agreement, the defendant took a conveyance from third parties of certain land which embraced the site of the wharf in possession of the company, and extended an undefined distance beyond. On the evidence, if this did not make two thousand feet of water-front, it at least was enough, if owned by the company, to make the property as valuable as it would have been according to plaintiffs’ position, if defendant’s representations were true. There was no effort to show what damage there would have been, if from the first the company had owned the land in the'conveyance to Naylor that has been last referred to.

The plaintiff claimed upon the trial, and upon the argument of the appeal, that Naylor paid for the land with money belonging to the company, or of the plaintiff, he being at the time an agent of the company.

In my opinion, the facts show that under the implied warranty of title in the agreement, and the express warranty in the conveyance to the company, upon the land being conveyed to Naylor, the company became by estoppel, if not the owner of the legal title, at least the equitable owner. And that under the common law, which it is presumed controls in Florida, the consideration of the last conveyance by Naylor having been paid by him with the moneys of the company or plaintiffs, made him trustee for the one whose money was paid, or owner of the legal title for their use.

It is true that Naylor is proved to have said that he had conveyed the property to a third person. In that case, however, that third person could not have been a bona fide purchaser having any power to affect the equitable rights of the company, because the possession of the company was notice that it claimed the property, and the purchaser took subject to their notice.

If the company had an equitable title, but not a legal title, there was no proof of the amount of damages the plaintiff sustained, from the "company not having the legal title.

1 am also of opinion, that the plaintiff did not give any testimony that tended to show that the defendant knew that the representation charged against him was false at the time he made it. ' The complaint does not charge, nor does the testimony admit of such a charge, that the representation was that the defendant knew or had personal knowledge of the existence of the thing represented. The representation went no farther than as concerned the existence of the fact.

The agreement was drawn and executed in New York. One of the plaintiffs testified that he at that time said to plaintiff, that he would not take his statement, that the defendant was an entire stranger to him, and he would not make a contract in reliance upon his statement and therefore the proposition was made in the written contract, that one of the plaintiffs was to go to Florida to examine the property. The plaintiff referred to afterwards went to Florida and examined the property. It was in fact, including the water front, in possession and use of the company. The plaintiff testified that the defendant took him down on the dock and pointed out what he said was the water-front and the line between the town of Appalachicola and the mill property, which ran to the line of the town, a little creek, which was about 800 feet south of the mill. If this, as it is claimed for plaintiffs, should be deemed testimony that the defendant represented, that the wharf and adjoining land as far as the creek, belonged to the company, and that the creek was the boundary of the city of Appalachicola, there was no testimony that the' defendant knew or believed it to be otherwise. He took the deed in September, 1881, after the transaction in November, 1880, but the testimony showed that this was prompted by information he gained not earlier than June, 1881, when third parties made a survey of adjoining premises. There was no proof that he had knowledge of the actual facts as to the legal title, or that the creek was not.the boundary of the city. There was not proof even, that the land in actual possession, was not the land described in the conveyance to him. For all the testimony shows, he may have been in the same predicament before the conveyance to the company, that the plaintiffs were in after the agreement was made.

I am of the opinion that the judgment should be affirmed with costs.

Truax and O’Gorman, JJ., concurred.


author: By the Court—Sedgwick, Ch. J.

text:
    J. STAURT McALEER, Respondent, v. WARREN H. CORNING, et al., Appellants.

      Decided February 4, 1884.

      Contract of employment in prcesenti, services to begin in future.—Statute of frauds.

    If a contract of hiring is made for one year to begin in prcesenti, no services to be done by the employee until a future day, the contract is operative from the day of its making, and the year ends with the ending of one year from that day.
    The evidence in this case, consisting of acts and admissions of the em-' ployce, considered by the court, and held insufficient to show that the term of employment began at the time of the rendition of actual services, and it was held therefore that the contract was valid and not within the statute of frauds.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Appeal by defendants from order denying their motion made at special term upon a case, to set aside the verdict and for a new trial.
    The motion was made on the ground that the verdict was against evidence and contrary to the law of the case.
    The facts appear in the opinion.

      W. M. Safford, for appellants.

      John A. Mapes, for respondent.
   By the Court—Sedgwick, Ch. J.

The facts in the testimony that furnish support for the verdict are as follows : On April 8, 1881, the defendants hired the plaintiff for the term of one year, and the term was to begin immediately. The plaintiff was not immediately to do anything in the shape of services, but on April 20, he was to meet one of the defendants at their place of business in Peoria, Illinois. Jn the meantime, the plaintiff was to go about informing persons that he had left the employment of a certain firm and had gone into the service of the defendants. On April 20, he went to Peoria, saw a defendant, and was instructed in the part of defendants’ business it was best he should know. On April 30, at direction of defendants, he started on his travels to .get orders for defendants’ goods. It was on April 30 that he began to furnish services that specifically might benefit defendants. Although this might be the fact beyond controversy, nevertheless it was not inconsistent with the fact that from April 8, he had been under á contract to render service, he, since that time, at the direction of defendants, doing no service, or none excepting preparing the ground for subsequent services being advantageous pecuniarily to the defendants.

The jury had before them enough evidence to find that what has been stated happened.

The counsel for defendants contend that the testimony incontrovertibly showed that on April 8, there was a contract made between the parties by which the plaintiff was to render service for the term of one year, and that the term was to begin on the next 30th April, or 1st May, and that such a contract was void by the statute of frauds.

The first piece of testimony adduced to sustain these positions is, that in the original complaint, which was verified by the plaintiff, he averred that “ on or about the 30th day of April, 1881,” the defendants hired the plaintiff, ‘ ‘ for and during the period of one year from the making of said agreement.” The complaint was on the trial amended, by making 30th day of April read 8th day of April. Perhaps such an amendment was not necessary, for ordinarily time is not material in a pleading, especially when it refers to the making of a contract not reduced to writing. And it must be said that the plaintiff did not in his oral testimony make one case before the amendment and another after it, but the amendment conformed the pleading to the facts, as the jury afterwards found them.

In addition to the plaintiff’s statement in the original complaint on September 10, ÍS81, the plaintiff wrote to the defendants a letter, in which was, “I would, therefore, beg to say, that until my year expires May 1, 1882, my services will be held entirely at your command.” Take the two together, by themselves, and the fact, that the contract was made on April 8, the conclusion would be that the term was to begin on April 30 or May 1, but it was not impossible to show by the testimony what the real fact was, and that the plaintiff had made a mistake in his assertions. On the trial he was cross-examined as to these things, and he declared that they were the result of mistake. The jury passed upon the effect of the declarations and the assertions of a mistake. 1

Without going into unnecessary particulars, the mistake involved substantially a matter of law, which may be stated as follows : If a contract of hiring is made for one year, to begin in prcesenti, no services to be done by the employee, until a future day, the contract is operative from the day of its making, and the year ends with the ending of one year from that day. It might be a natural mistake for a layman to think that as a year of actual affirmative service could not begin until some service was done; that the contract for services was not operative until the day when something was to be done by him.

Another fact that defendants’ counsel relied on was, that on April 16, the plaintiff made a receipt which signified that he then received from his former employer, wages in full to the 18th, and such was the fact. The argument from this is, that from April 8, to April 16, he was in the employment of the former employer, and therefore it was certain he could not have been in the employment of the defendants or under contract to them, for that time. When the nature of the present contract, as described in plaintiff’s testimony, is • considered, there does not seem to be any inconsistency between the two contracts. They might have both been fully performed. If it were the fact, that the performance of defendants’ contract prevented the performance of the contract with the former employer, that would concern the latter alone.

On the whole case the order should be affirmed, with costs.

Truax and O’Gorman, JJ., concur.


text:
    OSCAR G. RAFFERTY, Respondent, v. JAMES H. WILLIAMS, et al., Appellants.

      Decided February 4, 1884.

      Inspection of writings—when not granted.

    Where an application for an inspection of writing, etc., is made before issue joined to enable plaintiff to frame his complaint, it can only be granted where the petition shows that the inspection is necessary to enable the petitioner to draw his pleading; and where the petition contains enough matter to enable plaintiff properly to frame his complaint, the application will not be granted, though it may appear that certain of the allegations cannot be made upon knowledge, but only on information and belief.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Appeal by defendant from an order granting to plaintiff an inspection of documents to enable him to draw his complaint.
    The facts appear in the opinion.

      Eugene Smith, for appellant.
    I. The agreements to be inspected are the evidences and muniments of defendant’s title to the property which the plaintiff seeks to recover. But the law is well settled, that an inspection will not be allowed to compel a defendant to disclose the sources and the proofs of his own title ; the inspection must relate to the title of the party seeking the" discovery, and not to the title of the opposite party (Shoe and Leather Asso. v. Bailey, 49 Super. Ct. 385; Andrews v. Townshend, 2 N. Y. Civ. Pro. 76 ; Breevoort v. Warner, 8 How. Pr. 324).
    II. The petition contains all the allegations upon the matters regarding which discovery is asked that are needed to form a good complaint. The action is stated to be in the nature of a creditor’s claim to set aside an alleged fraudulent sale by the judgment debtor to the defendant. The sole evidence of fraud relied on is inadequacy of consideration paid. The petition alleges that the property in question was worth $55,000, and that the consideration paid was $23,000 cash and $15,000 first mortgage on the property, and that any additional alleged consideration was fictitious and fraudulent. A general allegation of inadequacy is sufficient, without going into details to set forth in the complaint precise figures showing the exact amount of inadequacy. On the other hand, if the plaintiff does not know whether the consideration was inadequate or not, or whether any of it was fictitious or not, then he does not know whether he has a cause of action or not, and this becomes what" is properly called a mere fishing excursion, and discoveries "for such a purpose the courts have invariably condemned (Phelps v. Platt, 54 Barb. 557; Woods v. De Figaniere, 25 How. 522 ; Mott v. Consumers’ Ice Co., 2 Abb. N. C. 143).
    III. The discovery is asked for simply to enable the plaintiff to prepare his complaint. To succeed, he must satisfy the court, that the discovery is necessary for that purpose. It is not sufficient that it may appear that the discovery would show facts material as evidence on the trial. If the plaintiff desires a discovery for the latter purpose, he must apply for it after issue joined (Gelston v. Marshall, 6 How.
      398 ; Mora v. McCredy, 2 Bos. 669 ; Thompson v. Erie Ry. Co., 9 Abb. N. S. 230).

      Beltz & Large, for respondent.
   By the Court.—Sedgwick, Ch. J.

The order appealed from that granted an inspection of certain agreements can be sustained only if the petition showed that the inspection was necessary to enable the plaintiff to draw his complaint.

The petition showed that the action was by a creditor, to set aside an assignment made by his judgment debtor to the defendant Williams, and to compel Williams to account for the property that had been assigned to him. It further alleged that such assignment was made with intent to defraud the plaintiff, and gives the particulars of the facts that would sufficiently show, if proven, that the assignment was fraudulent on the part of Williams. It, therefore, contains enough matter, without the aid of an inspection, to enable the plaintiff to frame properly a sufficient complaint.

It is not necessary that the allegations should be made upon knowledge; they may be made upon information and belief. As, therefore, the inspection was not necessary to, the plaintiff at this stage of the case, the order granting it should be reversed.

Order reversed with $10 costs and disbursements to be taxed. Motion for inspection denied without costs.

Truax and O’ Gorman, JJ., concurred.