text:
    EDWARD S. HAND, Plaintiff and Respondent, v. GEORGE H. KENNEDY and WILLIAM I. HUTCHINSON, Impleaded with JAMES A. WILLIAMSON, Defendants and Appellants.
    Before Speir and Freedman, JJ.

      Decided November 3, 1879.
    In case of promise made to one for the benefit of another, lie for whose benefit the same was made may bring an action for its breach; and where a party, for valuable consideration, promises another party to pay a certain mortgage to a third party, who is the mortgagee, the latter may recover, from the party making the promise, upon a breach thereof, without foreclosure of the mortgage, and joining the mortgagor in the action.
    Sucli a promise may be made and enforced without any consideration moving from the mortgagee or third person. Where several parties are liable to the mortgagee in different amounts, under their agreements with each other, an action can be maintained against them all in equity, and a judgment rendered therein, according to the facts established therein against them all, according to their joint or several liabilities.
    Appeal by defendants from a judgment of the special term.
    The plaintiff, by contract in writing, on November 15, 1871, agreed to sell to the defendants and James A. Williamson, for $44,000, a tract of land in the State of Hew Jersey, to be paid $10,000 in cash, and the balance to be secured by bond and mortgage upon the property purchased. On January 8, following, an agreement was entered into between Kennedy, Hutchinson and Williamson, by the terms of which the title to said premises was to be'taken in the name of Williamson, he to render an account of the same in the proportions therein specified, Kennedy and Hutchinson to pay their proportion of all moneys which should be necessary to carry out said contract, and for disbursements in preparing said lands for market, and to assume their proportion of the mortgage to be given for the purchase of the same—being Kennedy, one-half ; Hutchinson, one-quarter; and Williamson, one-quarter. On June 1, 1872, plaintiff executed and delivered to Williamson a deed of the premises, and took from him, in part payment therefor, his bond to secure $35,383, and interest secured by a mortgage upon the premises so conveyed. Thereafter all the premises, excepting a “house lot,” was laid out into blocks and lots—a number of lots were sold by Williamson—plaintiff releasing them from his mortgage upon being paid a sufficient part of the consideration.
    On September 23, 1874, Williamson conveyed, for a nominal consideration, to Kennedy and Hutchinson, their interest in the remainder of this tract, being to Kennedy one-half, and to Hutchinson one-fourth. This deed contained this provision: ‘ ‘ The proportional parts of all which,” referring, among other things, to the mortgage in question made to plaintiff, “ according to the undivided shares and portions of the said parties of1 the second part to these presents are hereby assumed and agreed to be paid by the said parties of the second part to these presents, as part of the consideration or purchase money for the said undivided shares and portions of the said lands and premises hereby conveyed, and the same forming a-part thereof.”
    This mortgage was foreclosed in the court of chancery of New Jersey, on May 5, 1877, and the premises sold to the plaintiff for $12,000, which' the court found was a fair value of the premises sold, leaving a balance due of $12,596.06, for the recovery of which this suit is brought.

      Wilson & Wallis, attorneys for appellant; Hamilton Wallis, of counsel.

      Martin & Smith, attorneys for respondent; Pennington, Whitehead & M. W. Devine, of counsel.
   By the Court.—Speir, J.

By the original agreement between the plaintiff and the defendants the latter became liable and bound to purchase from the plaintiff the whole tract of land, and to pay to him therefor $10,000 in cash, and secure the balance of the purchase-money by their bond and mortgage. Shortly after this engagement with the plaintiff, the defendants, Kennedy and Hutchinson, entered into an agreement with Williamson, whereby they agreed that he should take the title to the land in his own name—they agreeing to pay their proportion of all moneys necessary to carry out the original agreement to buy of the plaintiff, and Williamson to render an account to them—they agreeing to assume their proportion of the mortgage to be given for the purchase—being, Kennedy one half, and Hutchinson one quarter. The deed from Williamson to Kennedy and Hutchinson was executed and delivered, and by its terms they accept the conveyance from Williamson of three undivided fourth parts of the premises in question, subject to the plaintiff’s mortgage thereon, which they assume and agree to pay as part of the consideration or purchase-money for their proportion.

The promise made by Kennedy and Hutchinson to Williamson, was in effect a promise made by them upon a valid consideration for the benefit of the plaintiff, and comes within the principle illustrated by the example so frequently cited and concisely stated, “That when a promise is made to one for the benefit of another, he for whose benefit it is made may bring an action for its breach.” It has been, therefore, well settled that in such a case the action will lie in the name of the creditor for whose benefit the promise was made. The plaintiff here is such a creditor ; and it is equally well settled that he may pursue this remedy without foreclosing the mortgage and without joining the mortgagee as defendant.

It is insisted by the defendant that with a full knowledge of all the circumstances- in the case, and of the respective rights of the parties on the part of the plaintiff and Williamson, the individual obligation of Williamson was accepted by the plaintiff instead of the joint obligation of the three, and is in effect an accord and satisfaction of all claims against Kennedy and Hutchinson. The answer to-this is, there was no controversy then between the parties to settle, nor was the debt secured to be paid to the plaintiff satisfied or attempted to be by any one. It is also urged that under the original agreement the plaintiff was entitled and could have demanded the bond of the three parties for the balance of the purchase-money, and that he chose to abandon his right to accept the individual bond of Williamson, and that, therefore, he has no claim against the other two. It is enough that the plaintiff did not release the defendants from their promise; and whether he could or not is a question not now involved. He could not well discharge the promise beforé suit made, as it was for the plaintiff’s benefit, and, in accordance with legal presumption, accepted by him until his dissent was shown. Under the decisions such promise is to be deemed made to the plaintiff, if adopted by him, though he was not a party, nor cognizant of it when made (Lawrence v. Fox, 20 N. Y. 268); and in Barker v. Bucklin (2 Den. 45) it is held that a promise so made may be without any consideration moving from the plaintiff.

It is objected that a court of equity has no jurisdiction to hear and determine a case of this character. The subject-matter of the action is the liability of the defendants, under the two agreements and the deed referred to. The plaintiff, in his complaint, relies upon a contract between himself and the defendants, and one between the defendants and the covenants of assumption in the deed, as between them and the plaintiff, in adjusting the equities among the defendants themselves. The cause of action is found in the breaches under the agreements and covenants assumed in the deed. The claim is for a separate judgment against each defendant, and for separate amounts due from each. It seems to me, the mere statement of the case sufficiently shows that the objection is not well taken.

The judgment below must be affirmed, with costs.

Freedman, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    EDWARD F. WETTIG, Plaintiff and Respondent, v. FREDERICK C. MOLTZ, JOHN M. SCHMIDT, Impleaded, &c., Defendants and Appellants.
    SURETIES ON UNDERTAKING UPON ARREST.—JUDGMENT AGAINST, WHEN SURETIES ENTITLED TO RELIEF FROM, IN EQUITY.
    In the case at bar, the defendant Holtz commenced an action in the court of common pleas, against the plaintiff Wettig, and obtained an order of arrest. Defendants Schmidt and Specht executed with Moltz the usual undertaking. Afterwards, and during the absence of Moltz from the State, Wettig obtained a judgment for costs in the common pleas action against Moltz for non-prosecution, and then commenced this action on the undertaking against the defendants, and obtained judgment therein. After this, Moltz moved in the common pleas, to vacate and set aside the judgment taken by default by Wettig against him, and the motion was granted. Subsequently, the defendants herein moved to vacate the judgment against them in this action, and for a new trial..
    Before Speir and Freedman, JJ.

      Decided November 3, 1879.

      Held, by the court, this motion for relief in this action was addressed to the discretion of the court, and should have been granted.
    Sureties are always entitled to equitable protection from the courts, and should never be compelled to pay, in a case in which their principal is under no liability.
    When Moltz was relieved from the judgment in the common pleas action, the defendants in this action became entitled in equity to relief in this action to an equal extent.
    In the month of April, 1871, the defendant, F. C. Moltz, commenced an action of crim. con. against the plaintiff herein, in the court of common pleas, for the city and county of Hew York. The plaintiff herein was arrested, after an undertaking on order of arrest had been executed, which was signed by F. C. Moltz as principal, and F. W. Specht and John M. Schipidt as sureties.
    In the month of April, 1871, the defendant, F. C. Moltz, commenced an action for divorce from his then said wife, Augusta B. Moltz, on the ground of her adulterous intercourse with the plaintiff herein, and obtained such divorce May 16, 1871. About this time Moltz, on account of his business; was obliged to leave this city. In April, 1878, a motion was made by the attorney for B. F. Wettig, defendant in court of common pleas, to have the complaint dismissed for want of prosecution ; which said motion, no one appearing to oppose, was granted, and the action dismissed. Judgment was thereupon entered against the defendant herein, F. C. Moltz, for costs in common pleas crim. con. action, for $146.07. In May, 1878, an action was commenced in this court by the plaintiff herein, and against the defendants, to enforce their liability on the undertaking; which, in December, 1878, resulted in a judgment for plaintiff against defendants Schmidt and Specht for 627.01, Moltz not having been served.
    On December 31, 1878, a motion was made in the court of common pleas to vacate and set aside the judgment entered by default in favor of the defendant" Wettig, and against the plaintiff Moltz, on April 17, 1878, and to allow the plaintiff to come in and prosecute, &c., which motion was, on January 8, 1879, granted.
    Thereupon the defendants Schmidt and Moltz moved at a special term of the .superior court, that the judgment entered in said court be vacated and set aside and a new trial granted, which was denied, and the defendants, Schmidt and Moltz, appealed.

      Fred. W. Diehl, for appellants.

      E. A. Acker, for respondents.
   By the Court.—Freedman, J.

The judgment entered in this court against John M. Schmidt and F. W. Specht, as sureties upon the undertaking, was regularly recovered. The appeal book discloses no error or irregularity in the proceedings, or other reason for which the appellants could ask to have it vacated as matter of right.

The motion for relief and for a new trial was therefore addressed solely to the discretion of the court.

By the undertaking in question the obligors bound themselves that if Edward F. Wettig, the defendant in the action brought in the court of common pleas, should recover judgment therein, Frederick C. Moltz, the plaintiff, would pay all costs which might be awarded to said defendant, and all damages which he might sustain by reason of the arrest; and when, in consequence of the dismissal of the plaintiff’s complaint for want of prosecution, the defendant Wettig did recover a judgment for costs, and Moltz failed to pay the same, the obligors who had executed the undertaking became prima facie liable. But this liability is not an absolute one, if the judgment thus recovered by Wettig does not represent a final determination of the rights of the parties to that action.

As long as the parties acquiesced in it, no obstacle existed to the prosecution of a suit upon the undertaking. The court of common pleas, however, had the power, in its discretion, to vacate the judgment and to allow the plaintiff to come in and prosecute, and for cause shown this power was exercised and the judgment vacated. If this had happened before the commencement of the action in this court, the appellants, upon being sued, could have set it up by answer as a defense. If it had happened after issue joined, ihe court might have allowed them to set it up by way of supplemental answer. It happened, however, after the recovery of the judgment in this court. This circumstance constituted no bar to the motion made below, butronly went to the question of terms.

In my judgment, relief in some form should have been granted. Sureties are always entitled to equitable protection, and they should not be compelled to pay in a case in which their principal is under no liability. Even in the case of a suit brought on an undertaking on appeal to the general term, where, under the provisions of the former Code, as they existed prior to 1862, the fact of the perfection of a further appeal to the court of appeals, and the procurement of a stay thereby, in the original action, could not be pleaded in bar or in abatement of the action on the undertaking, the sureties were usually relieved by an order staying proceedings in the latter action.

In the case at bar not only was the judgment against Moltz, the plaintiff, vacated by the court of common pleas, and the plaintiff allowed to come in and prosecute, but the action was thereupon prosecuted to a final determination, and such prosecution resulted, as was conceded on the argument, in a judgment for said plaintiff. The judgment in the court of common pleas could be vacated on the motion of Moltz only, and as soon as it was vacated Schmidt made an application to this court, in which Moltz joined. Ho laches are attributable to Schmidt, because, as long as the judgment against Moltz remained upon the record, he could nob move. But when Moltz was relieved, Schmidt, in equity, became entitled to relief to the same extent.

The order appealed from should be reversed Avith costs, and the motion for the vacation of the judgment and for a new trial should be granted upon payment, of the costs of the action, less the costs of this appeal, with leave to the appellants to make and file a supplemental ansAver, setting forth the vacation of the judgment by the court of common pleas, and with leave to the plaintiff to discontinue the action, without costs, if he should be so advised.

Speir, J., concurred.


text:
    PHILIP HERRMAN, Plaintiff, v. THE ADRIATIC FIRE INSURANCE COMPANY, Defendant.
    Before Sedgwick and Freedman, JJ.

      Decided November 3, 1879.
    InSUBAHOE POLICY.
    In the case at bar the policy covered several buildings and their contents, and contained this clause: “If the above-mentioned premises' shall become vacant or unoccupied, and so remain for more than thirty days, without notice to and consent of this company in writing .... this policy shall be void.”'
    It appeared that the dwelling-house that was destroyed by fire had been unoccupied, so as to fall within this clause, while another building, used as a dwelling-house, and forming a part of the premises insured, had been occupied continuously.

      Held, by the court, that the word “ premises,” in this condition or clause of the policy, covers the whole property insured—dwellings, out-houses• and appurtenances together forming one establishment—and unless the whole premises became unoccupied, the condition of the policy remained unbroken.
    The meaning and effect of the words “ occupied ” or “unoccupied,” considered and discussed, and the cases and decisions bearing upon the same fully reviewed and discussed in the opinion of the court.
    Exceptions ordered to be heard at general term, in the first instance, upon the direction of a verdict for the defendant.

      N. B. Hoxie, attorney, for plaintiff.

      Foster & Thomson, attorneys, for defendant.
   By the Court.—Freedman, J.

At the trial a verdict was directed upon the evidence of the plaintiff, in favor of the defendant, and plaintiff’s exception to such ruling was ordered to be heard in the first instance at the general term. This disposition of the case presents for review the single question, whether, upon plaintiff’s own showing, it affirmatively appeared that, on the day of the occurrence of the fire, the insured premises were vacant or unoccupied, and had been so for more than thirty days prior thereto, within the meaning of the prohibitory clause of the policy.

The language of the clause is : “ If the above-mentioned premises shall become vacant or unoccupied, and so remain for more than thirty days, without notice "to and consent of this company in writing, . . . this policy shall be void.”

The facts of the case, with the exception of the language of the policy, do not materially differ from the state of facts presented by the same plaintiff in his action against the Merchants’ Insurance Company, recently decided by this court. The words of the policy there were, that the policy should become void in case the insured premises should be “ vacant and unoccupied, &c.,” and in view of the use of the copulative conjunction it was ’ held that, inasmuch as vacancy and non-occupation had to concur to avoid the policy, and the premises were not shown to have been vacant, however the fact may have been with regard to their occupation, the direction of the verdict in favor of the plaintiff constituted a proper determination of the issues (44 N. Y. Super. Ct. 444.)

The decision referred to calls upon ns to hold that the state of facts existing in the case at bar is not sufficient to constitute a vacancy within the meaning of the policy, and the only question remaining is, whether the premises were shown to have been left unoccupied.

The meaning of the word “unoccupied” necessarily varies with its use in different policies, and to determine it correctly in a particular instance, regard must be had to the intention of the parties as expressed by the particular policy, and the subject-matter in respect to which the term is used.

Thus, in Keith v. Quincy Mutual Fire Insurance Company (10 Allen, 228), which was an action brought upon a policy of insurance upon a wooden building used as a trip-hammer shop, and in which the defense interposed was non-occupancy for over thirty days, by which the policy by its terms became void, the court charged as follows :

“It is not sufficient to constitute occupancy, tha,t the tools remained in the shop, and that the plaintiff’s son went through the shop almost every day to look around and see if things were right; but some practical use must have been made of the building, and if it thus remained without any practical use for the space of thirty days, it was, within the meaning of the policy, an unoccupied building for that time, and the policy became void.”

On appeal this view was sustained, and the exceptions overruled.

In Paine v. Agricultural Ins. Co. (5 T. & C. 619), the policy provided, that in case the premises should be sold and possession given, or the house left unoccupied, without giving immediate notice to the company, the policy shall cease, and be of no force and effect %

The plaintiff having been separated from his wife, and being in ill health, left the dwelling-house insured, in the middle of January, and removed to the house of his son, in Albion, about twenty miles distant, and continued to board with his son until March 30, when the fire occurred. No one inhabited the dwelling-house during plaintiff’s absence, except one night, when the plaintiff slept there. Plaintiff, on his removal to Albion, left all his household goods and effects in the house in the same condition as when he lived in it, and during his absence visited the house oh different occasions, and maintained a general supervision over it.

The referee, on this state of facts, held that the house was not unoccupied, within the clause of the policy. ' • ■

On appeal this was held error, and a new trial was ordered. In delivering the opinion of the court on that occasion, Mullin, J. says :

“ Occupation of a house is living in it, not mere supervision over it. It is not necessary that some person should live in it every moment during the life of a policy containing such provision as is contained in the policy before us, but there must not be a cessation of occupancy for any considerable portion of time. For what length of time it may remain unoccupied will depend upon the circumstances of each case, and the jury or the referee must determine the question, in view of the consideration that led to the incorporation of the provision into the policy, and the necessity that not unfrequently arises for persons insured to leave temporarily their dwelling-houses. As the policy requires immediate notice of the cessation of occupancy, the abandonment of the premises must be very short indeed, that will not work a forfeiture of it, &c., &c.”

In Cummins v. Agricultural Ins. Co. (67 N. Y. 260), the policy contained the following provision : “If the dwelling-house or houses hereby insured become vacated by the removal of the owner or occupant, this policy shall be null and void.” The court of appeals held that there was a material distinction between this provision and the provision in Paine v. Agricultural Ins. Co.; that in the case.of Paine the mere fact that the house was left unoccupied was sufficient to avoid the policy, according to its express terms, unless immediate notice were given ; but that in the case of Cummins, the condition was superadded that it must have been vacated by the removal of the owner or occupant, and that these words referred to a permanent removal and entire abandonment of the house as a place of residence. .

Ashworth v. Builders’ Ins. Co. (112 Mass. 422), was an action of contract upon a policy of insurance against loss by fire on a “ dwelling-house” and a “ barn near by.” The application described the premises as used by the assured for farming purposes. The policy provided that “buildings unoccupied are not covered by this policy, unless insured as such.” The dwelling-house was only used by the assured and his servants, for the purpose of taking their meals there when engaged in carrying on a contiguous farm, and the barn was only used for the purpose of storing hay and farming tools. Colt, J.: “The policy expressly declares upon its face, that buildings unoccupied are not covered, unless insured as such. This is descriptive of the subject-matter of the insurance. It is a stipulation on the truth and fulfillment of which the contract depends, and the insurer has a right to insist on a strict compliance. It is decisive of this case .... for the facts stated do not show an occupancy of either the house or barn, within the meaning of the policy. Occupancy, as applied to such buildings, implies an actual use of the house as a dwelling-place, and such use of the barn as is ordinarily incident to a barn belonging to an occu-pied house, or at least something more than a use of it for mere storage.

“ The insurer has a right, by the terms of the policy, to the care and supervision which is involved in such an occupancy.”

Judgment was given for the defendant.

In the case of Gibbs v. Continental Fire Ins. Co. (13 Hun, 611-620), the policy contained a provision, that should the premises become unoccupied, without the consent of the company, this policy shall be void. The plaintiff had slept at night, for some time, but for how long did not clearly appear, at the house of her daughter, which next adjoined that occupied by the plaintiff, ■but she had never abandoned the premises, and, although lodging at her daughter’s house, her furnitnre and wearing apparel were left at her qwn. She returned daily to the premises insui’ed, and spent the day there. It was held the house was not unoccupied within the meaning of the policy.

In the case at bar, and by the policy in question, the Adriatic Fire Insurance Company insured the plaintiff against loss or damage by fire or lightning, to the amount of $7,575, as follows :

“ $2,000 on his two-story and attic frame dwelling-house, and three-story tower thereon; slate roof, 28 x 37 feet, and two-story and attic slate-roof addition, 16 x 17 feet.
“ $750 on household furniture, useful and ornamental, linen, beds, bedding, plate, plated ware, printed books, wearing apparel, and family stores contained therein.
“ $350 on frame wash and woodhouse, kitchen and privy, about 40 feet in rear of the above-described dwelling.
' “ $1,500 on barn and sheds attached.
“$750 on carriage-house.
“$400 on frame dwelling.
“ $150 on outbuildings, detached, about 100 feet; situate in the town of Lloyd, Ulster county, 1ST. Y., being about one mile south from Highland Village.
“$250 on produce in barn and on premises.
“'$75 on live stock ; in case of loss, not more than $50 to be paid for any one cow.
“$500 on four horses, being $125 on each horse.
“ $400 on one carriage ; $150 on one carriage.
“$150 on two open carriages, being $75 on each.
“ 150 on three sets of harness, being $50 on each, all contained in above carriage-house and premises.”

The premises thus insured constituted plaintiff’s farm and summer residence. The farm was managed by a farmer in plaintiff’s employ, who received as part of his compensation the use of the smaller dwelling mentioned in the policy, and who, with his wife and children and a gardener, lived upon it throughout the entire year. • The plaintiff, who does business in the city of New York, with his wife and children, actually lived upon it during the summer and part of the fall only. About November 20,1876, the plaintiff, with his family, left the premises and returned to his city residence to remain there for the winter, leaving in the main dwelling "mentioned in the policy his piano and. all his furniture, cooking utensils, beds, mattresses, and the summer clothing of himself and family. All the premises insured and the property remaining therein were left in charge of the farmer. As already stated, this farmer and his family resided in the frame dwelling mentioned in the policy, and during the absence of the plaintiff and his family they had permission to live in the main dwelling, of which they had the key. It was the particular duty of the farmer to see that the main dwelling, which could be seen from the farmhouse, was well ventilated 'and properly ' watched, and he, or some member of his family, regularly once a week did go into and through it, and open all the windows for the purpose of ventilation. The house was then carefully closed again, the windows bolted on the inside-and firmly secured, and the outer door locked, and, thus secured, the house was left for the ensuing week. The plaintiff, generally in company with Ms wife, visited the premises once a fortnight, to see that the farmer took good care of them. The plaintiff was in the habit, on these visits, of opening the main dwelling, going through the rooms, and everything therein ; but neither he nor his wife, nor any other member of his family, passed a night in the house during the winter preceding the fire. About three days before the fire the plaintiff and his wife were there, on one of their usual visits, and with painters, going through the house with them and giving directions as to the painting to be done. On April 8, 1877, while the premises were used, watched and guarded as aforesaid, a fire occurred, by which the main dwelling with its furniture, and the washhouse, kitchen and privy in the rear were destroyed, the loss exceeding the amount of the insurance.

Upon this state of facts it seems clear that, if the buildings destroyed were, at the time of the fire, in fact unoccupied, within the true meaning of the clause of the policy, and had so remained for the space of thirty days, the intention of the plaintiff to return to them as a summer residence is wholly immaterial. True, the clause of the policy is to be construed in view of the situation, and the character of the property described in the policy, and the ordinary incidents and contingencies affecting the use to which the property, and other property of like character and similarly situated, is subject, and hence, though it has been held that occupation of a dwelling-house is living in it, it has also been held that the same construction cannot be applied to a saw-mill, church building or school-house, described as such in the policy (Whitney v. Black River Ins. Co., 72 N. Y. 117).

But the buildings in question were not described in the policy as a summer residence, nor is there any proof in the case upon which the company can be charged'with knowledge of their precise character and use. The construction of the clause cannot, therefore, be limited by any such consideration.

If, therefore, the policy in question only covered the main dwelling, or if, covering, as it does, severally, buildings ostensibly used for dwelling purposes, it provided that, if any one of these buildings should become unoccupied, and so remain for more than thirty days, without notice to and the consent of the company in writing, the policy should be void as to the building so becoming and remaining unoccupied, there would, upon the evidence, and such of the authorities as seem to hold that in such a case the occupation called for is an occupation in the popular, and not the legal, sense of the term, be room for argument that, at least as to the main dwelling, the policy had ceased to exist. It may also be conceded, as a general rule, that if, under a policy, the contract of insurance comes to an end with regard to the main dwelling, by reason of non-occupation, it also comes to an end with regard to such of the outbuildings as are so connected with the main building that they cannot be deemed occupied for any practical purpose as long as the main building is and remains unoccupied.

But the difficulty in the present, case is that the word “premises” covers the whole property insured, dwellings, outhouses, and appurtenances, together composing one establishment, the farm of the plaintiff; and unless the whole premises became unoccupied, the condition was not broken. The condition is invoked to create a forfeiture, and in such a case the rule is that it is to be strictly construed against the underwriter. The precise question arose in Bryan v. Peabody Ins. Co. (8 West Va. 605). The policy was upon “a two-story frame building, standing on leased ground, 25x50 feet; also one-story frame, 12x16 feet, occupied as a hardware store and dwelling, situated in the town of Antwerp, Clarion county, Pa., and stock of merchandise, consisting principally of hardware, oil-well supplies, and pipe-coupling machines, all contained on first floor of the above building.” The clause as to vacancy or non-occupation was precisely like the one now before the court, and the proof showed that the dwelling part of the building, last described, had become and remained vacant for more than thirty days preceding the fire. In delivering the opinion of the supreme court of appeals, Moore, J., says : “The clause must be construed to mean and apply to the whole or entire premises as to its becoming vacant or unoccupied, and not merely to a part thereof. Had the company intended otherwise, it is reasonable to suppose it would have so declared. It would not have contented itself with the general and comprehensive expression, 1 above-mentioned premises,’ but would have manifested its meaning and intention in common and plain, language, such as above-mentioned premises or any part thereof. Thus impressed, I hold that Bryan did not violate his contract in not giving notice of the vacating of a part of the premises.”

I can perceive no reason why a different rule should prevail in the case at bar. Such, then, being the construction to be placed upon the contract, and it appearing that the farmer and his wife and children, and the gardener, were upon the farm and in charge of the same as above stated, at the time of the fire, and had actually and continuously lived upon part of the insured premises for more than thirty days preceding the fire, while engaged in'guarding the whole, the conclusion is unavoidable that the premises were not unoccupied within the meaning of the policy, and that it was error to direct a verdict for the defendant. For the same reasons, a simple dismissal of the complaint would have been equally erroneous.

Plaintiff’s exceptions must be sustained, the verdict set aside, and a new trial ordered, with costs to the plaintiff to abide the event.

Sedgwick, J., concurred.


author: Per Curiam. Freedman, J.

text:
    THE BANK FOR SAVINGS IN THE CITY OF NEW YORK, Plaintiff and Respondent, v. MARTIN FRANK, Defendant and Appellant.
    Mortgages on real estate—priority of lien, as between two UPON THE SAME PREMISES, BY AGREEMENT OF PARTIES IN INTEREST —BONA FIDE PURCHASERS OF—RECORDING ACT.
    An assignee of a mortgage must take it subject to the equities attending the original transaction, and such equities may exist in favor of the mortgagor, or in favor of third persons (Trustees Union College v. Wheeler, 61 N. Y. 88; Greene v. Warwick, 64 Id. 220; Crane v. Turner, 67 Id. 437). The assignee cannot defeat such equities by showing that he is a bona fide purchaser for a valuable consideration. It is immaterial that he had nO' notice of their existence at the time of the assignment.
    But where a mortgage had a valid inception as a subsisting and enforceable lien in the hands of the mortgagee, to the full extent of its face, equities arising thereafter stand upon a different footing, and must be disposed of upon such other principles of public policy, or according to such statutory requirements, as the facts of the particular case may call for (See cases cited and discussed in the opinion).
    An assignment of a mortgage is a conveyance within the meaning of the statute, and since the Revised Statutes of 1830', the first assignee of a mortgage, in order to protect himself against a subsequent bona fide purchaser of the mortgage (whose assignment may be first recorded), must record his assignment (Vanderkemp v. Shelton, 11 Paige, 28, and Campbell v. Vedder, 3 Keyes, 174).
    The protection of the statute extends only to purchasers in good faith and for a valuable consideration, parted with on the strength of the conveyance (De Lancy v. Stearns, 66 N. Y. 157); nor is the parting with such valuable consideration sufficient in the absence of good faith, which cannot be said to exist in case of notice of a prior conveyance, &c.
    In the case at bar, an agreement for a valuable consideration was made between the plaintiff and defendant’s assignor, by which defendant’s said assignor agreed to waive the priority of his mortgage upon the premises in question (being the mortgage thereafter sold by him to defendant), in favor of a mortgage to be given upon the same premises to the plaintiff.

      Before Sedgwick and Speir, JJ.

      Decided November 3, 1879.

      Held, that such an agreement is not entitled to be recorded under the statutes, and if recorded, is not constructive notice to any one; but if so entitled, it should be recorded in the book of mortgages. Whether such a contract as the above, which stands unrecorded in law, does, in view of the facts in this case, run with the mortgage, so that the mortgagee cannot subsequently assign,’ even to a bona fide purchaser for full value, more than his own rights, quaere.

      But the court held, in the case at bar, that the knowledge the defendant had of the above agreement, through his sjttorney, was equivalent in law to notice.
    Appeal by defendant from judgment of the special term. The facts of the case sufficiently appear in the opinion of the court.

      A. H. Wagner, for appellant.

      Strong & Cadwalader, attorneys for respondent; John L. Cadwalader, of counsel.
   Per Curiam.

Judgment affirmed, with costs, upon the opinion of Judge Freedman at special term.

The following is the opinion of the court below:

The Bank for Savings in the City of New York, v. Martin Frank, and others.

Martin Frank v. The Bank for Savings, and others.

At Special Term.

Freedman, J.

These two actions, which were tried together, were commenced to foreclose mortgages on the same property, and the question between the Bank for Savings and Martin Frank, as the holders of the mortgages, is, which of the said mortgages shall have priority. There can be no doubt that the real agreement between the bank and Wolff, the assignor of Frank, was that Wolff should waive the priority of his mortgage upon the premises in question in favor of a mortgage to be given by Eppensteiner to the bank upon the same premises, to secure the payment of the sum of $7,000.

To carry such agreement into effect, Wolff, on November 15, 1869, for a valuable consideration, executed under his hand and seal, and delivered to the bank, an instrument in writing, purporting to contain such waiver, which was recorded November 22, 1869, in Liber 1113 of Conveyances, page 625,

Upon the faith of said agreement and instrument, the bank advanced to Eppensteiner the said sum of $7,000, and out of that amount the sum of $5,827.62 was used in paying off and discharging a mortgage upon the same premises, held by Phillip C. Harmon, and others, which was prior in point of date and record to Wolff’s mortgage. As the real agreement for the purposes of these actions must be deemed to have become merged in the written one, it is important to consider what rights the bank acquired under and by virtue of this written instrument and the recording thereof, as against a subsequent assignee of Wolff’s mortgage, whose assignment was duly recorded.

In terms and effect it was a mere personal contract between two holders of mortgages for the postponement of one mortgage to the other.

No interest in the mortgaged premises, nor any right, title or interest in or to the prior bond, and mortgage, was transferred thereby.

It did not operate as a release, for the whole premises continued subject to Wolff’s mortgage.

It was, in substance, a stipulation as to the law of the case, not as regards anything entering into or affecting the debt or the security—for both the debt and the lien of the mortgage were to remain, but in relation to priority simply.

Such an agreement was held to be one that is not entitled to be recorded under the statute, and hence the record thereof is not constructive notice to anybody (Gillig v. Maass, 28 N. Y. 191).

But if it had been thus entitled, it should have been recorded in the book of mortgages, and not in the book' of conveyances, in order to make the record effectual as against subsequent bona Jlde assignees or purchasers from the mortgage, for the statute (1 R. S. 756, § 2) directs that different sets of books shall be provided for the recording of deeds and mortgages, in one of which sets all conveyances absolute in their terms and not intended as mortgages, or as securities in the nature of mortgages, shall be recorded, and in the other set such mortgages and securities shall be recorded (75.).

Moreover, the mortgage whose priority Wolff has agreed to waive, was a mortgage recorded on April 1, 1868, in Liber 258 of Mortgages, page 258 ; but this mortgage he described in the written instrument as a mortgage recorded on April 16, 1868, in Liber 1049 of Mortgages, page 261.

In no aspect of the case, therefore, can the bank derive any benefit from the mere recording of the said written instrument as against Martin Frank as subsequent assignee of Wolff, whose assignment was duly recorded, provided Frank was a purchaser in good faith and for a valuable consideration. It is insisted, however, that Martin Frank could only buy what Wolff had to sell, and that he stands in the latter’s shoes.

The general rule undoubtedly is, that a seller or assignor of chattels or choses in action, can give no other or better title than he himself has; and that the purchaser or assignee must be content to stand in his place, and to accept his title; and that consequently one who takes an assignment of a bond and mortgage as Mrs. Burch a rd did, in Shafer v. Reiley (50 N. Y. 61), takes it subject not only to any latent equities that exist in favor of the mortgagor, but also subject to the like equities in favor of third persons and strangers.

In the case last referred to, whatever vitality the mortgage had, was by reason of the purchase of it by, and the assignment to, Mrs. Burchard. It took effect only as a mortgage by its delivery to her, and hence it was held that she took it subject to Griffin’s mechanic’s lien, which had been perfected pursuant to the statute, prior to that time.

In Trustees of Union College v. Wheeler (61 N. Y. 88), which was a case of inherent equity as between a purchaser having, under a certain contract, an interest in the equity of redemption, and the mortgage, it was held, upon such inherent equity, that the mortgage was never any other than a lien, subordinate to the rights of the purchaser, and that for this reason, the plaintiff, as assignee of the mortgage, acquired' no other or greater rights. The true test, said Dwight, C., is to inquire what the mortgagee can do by way of enforcement of it against the property mortgaged ; what he can do, the assignee can do, and no more.

In Greene v. Warwick (64 N. Y. 220), it was held that where two mortgages are executed at the same time, and upon an agreement that they shall be and remain equal liens in all respects upon the premises, an assignee of either of them takes it subject to all the equities arising out of the agreement in favor of the holder of the other, and that in such a case prior record is of no avail, because neither mortgage is a subsequent conveyance within the meaning of the recording act. In reaching this conclusion, and commenting upon the authorities, the test case laid down by Dwight, 0., in the case of the Trustees of Union College v. Wheeler (supra), is specifically referred to in Crane v. Turner (67 N. Y. 437). Pierce had executed a mortgage upon premises of which “he had possession, under a contract of sale ; and after receipt of a deed, he conveyed the premises and received from the grantee, who had notice of the prior mortgage, a mortgage for a part of the purchase money. • Pierce then assigned his mortgage to the defendant Turner, assuring him that the mortgage was the first lien. In an action to foreclose the first mortgage, Turner claimed that his mortgage was entitled to priority. Both mortgages having been duly recorded, it was held, upon the authority of the preceding two cases above referred to, (1) that as Pierce would be estopped from claiming a priority if he had retained the mortgage, his assignee had no superior right, and was also estopped ; and (2) that the recording act did not aid the defendant.

The principle, therefore, as was said by Miller, J., in delivering the unanimous opinion of the court of appeals in the case last cited, is settled beyond peradventure, that an assignee of a mortgage must take it subject to the equities attending the original transaction, and the true test is as stated by Dwight, C., in the Trustees of Union College v. Wheeler (supra), such equities may exist in favor of the mortgagor, or in favor of third persons.

But this general rule does not extend to equities other than such as attend the original transaction. They must exist at the time of the inception of the mortgage—at the time it springs into life. In all such cases the assignee takes subject to them, and he cannot defeat them simply by showing that he is a bona fide purchaser for a valuable consideration: In all such cases it is immaterial that he has no notice of their existence at the time of the assignment.

But where a mortgage had a valid inception as a subsisting and enforceable lien in the hands of the mortgagee to the full extent of its face,-equities arising thereafter stand upon a different footing, and they are to be disposed of upon such other principles of public policy, or according to such statutory requirements as the facts of the particular case may call for.

The cases which are most familiar, as falling within this class, are cases presenting conflicting claims under different successive assignments of the same mortgage by the mortgagee. They were usually determined according to the legal maxim, that, where one or two innocent parties must sustain a loss from the fraud of a third, such loss shall fall upon the one whose act or culpable negligence enabled the commission of the fraud ; even the decisions of such as were determined upon the provisions of the statute relating to the proof and recording of conveyances of real estate and the canceling of mortgages, rest to a large, but sometimes not apparent, extent, upon this maxim, for the very first section of that statute is but a reiteration, in the form of a legislative enactment, of the great principle underlying the maxim.

The statute provides, that every conveyance of real estate shall be recorded, as prescribed by it; and that every conveyance, not so recorded, shall be void as against any subsequent purchaser in good faith and for a valuable consideration, whose conveyance shall be first duly recorded 1).

The term “conveyance,” as thus used, embraces every instrument in writing, by which any estate, or interest in real estate, is created, aliened, mortgaged or assigned, or by which the title to any real estate may be affected, in law or equity ; except last wills and testaments, leases for a term not exceeding three years, and executory contracts for the sale or purchase of lands (§38).

And the term “purchaser,” as thus used, embraces every person to whom any estate or interest on real estate shall be conveyed, for a valuable consideration, and also every assignee of a mortgage or lease, or other conditional estate (§ 37).

This statute applies only to successive purchasers from the same seller, and the record of the assignment of a mortgage is constructive notice only of such assignment as against subsequent assignees of the mortgage (Gillig v. Maass, 28 N. Y. 191; Purdy v. Huntington, 42 Id. 334, 338, 347).

That an "assignment of a mortgage is a conveyance within the meaning of the statute, and that, in order to protect himself against a subsequent bona fide purchaser of the mortgage, whose assignment may be first recorded, the first assignee, since the Revised Statutes of 1830, must record his assignment, has been held in Vander Kemp v. Shelton, 11 Paige, 28; Campbell v. Vedder, 3 Keyes, 174.

Although, therefore, as to the mere holder of a subsequent mortgage, the record of a prior mortgage is sufficient notice of its existence, and of the rights of the assignee thereof, though the assignment of the prior mortgage be not recorded, and although such non-recording does not affect the rights of the holder thereof against subsequent purchasers of the premises, who are bound by the previously recorded mortgage, no matter who holds it, yet, as against a subsequent purchaser in good faith and for a valuable consideration from the mortgagee, whose assignment is first recorded, such holder’s rights are postponed, because, by omitting to record his assignment, he fails to give what under the statute should have constituted constructive notice of his rights, to all subsequent assignees of the mortgagee.

So it was held that where a party takes a mortgage with notice of a prior unrecorded mortgage, and with the understanding that he is to take his mortgage subject to the previous one, he cannot claim priority ; but that his bona fide assignee is as much protected as if no notice had ever existed (Jackson dem. Hyer v. Van Valkenburgh, 8 Cow. 260). This doctrine was recognized in Fort v. Burch (5 Den. 187), with the qualification only that the assignment must be recorded before the prior mortgage is recorded, and with this qualification it has remained good law ever since.

In Gillig v. Maass (28 N. Y. 191), it appeared that at the time the agreement was made between Walber, the original mortgagee, and Jones, as a junior mortgagee, whereby Walber undertook to waive priority in favor of Jones, Walber was no longer the owner of the mortgage, or that he had any interest therein, he having assigned the same to a bona fide purchaser. As he had no title whatever left, nor any apparent right to act for such bona fide purchaser, and the latter having done nothing to mislead Jones, it was held, that although the assignment was not at that time recorded, Jones treated with Walber at his peril.

The ■ foregoing review of authorities sufficiently shows how discriminating and careful the courts have been in cases of conflicting equities arising after the inception and during the life of a mortgage, to cast the loss, if any, upon the party at fault.

On the other hand, the protection of the statute extends only to purchasers in good faith and for a valuable consideration. Good faith is not enough without a valuable consideration parted with on the faith of the conveyance (De Lancy v. Stearns, 66 N. Y. 157), nor is the parting with such valuable consideration sufficient in the absence of good faith, which cannot be said to exist in case of notice.

The law being as stated, and it having already been shown that the bank can derive no benefit from the mere recording of the written agreement as against Martin Frank, as subsequent assignee of Wolff, whose assignment was''duly recorded, the question remains to be considered whether Frank was a purchaser in. good faith, and for a valuable consideration, and if he was, upon whom, in view of all the facts of the case, the loss which may arise shall be cast.

At the time of the execution of ■ the agreement between Wolff and the bank, Wolff was the true and lawful and undisputed holder of the mortgage, which he subsequently assigned to Frank, and as such he had full power to dispose of it, or any specific portion of it.

But no such disposition was made in favor of the bank. He parted with no part of the title. In terms and legal effect, as already shown, the agreement was a mere personal contract, collateral to, but not entering into the mortgage or mortgage debt, or affecting the mortgaged premises, or any part thereof.

Consequently, if it were necessary to determine with precision, whether this contract, which stands unrecorded in law, ran with the mortgage in such a way that Wolff could not subsequently assign, even to a bona fide purchaser for full value, more than his own rights, or whether such a purchaser could, by assignment, acquire title to ■ the mortgage free and clear of the personal stipulation, such determination, in view of all the facts of this case, might be attended with difficulty, and a decision either way might perhaps be confronted with some apparent authority to the contrary, and meet with some logical difficulties, especially .as Wolff appears to have been justas innocent of intentional fraud or wrong-doing as Frank and the bank were.

But such determination is unnecessary, if Frank did not purchase in good faith, and for a valuable consideration, within the meaning of the law upon this branch of the case: it seems to me that I am compelled to hold that he was not a purchaser in good faith.

Wolff had demanded from Dilger and Raichle, the makers of the mortgage, payment of the mortgage, and had threatened foreclosure, when they agreed to buy it for the purpose of foreclosing it themselves. They were advised to take the assignment in the name of a third party, and they finally induced Frank, who is a step-brother of Raichle, to purchase it for a consideration of $1,000, to be paid by two notes payable within six and twelve months respectively. At that time the sum remaining due thereon amounted to $1,824.61.

They knew of Wolff’s agreement with the bank, though they had never consented to or ratified it, and they assured Frank,.' as the latter swears, that the mortgage he was about to buy was all right, and a first mortgage. Row, Frank swears that before he accepted the assignment, and gave his notes, he retained A. H. Wagner, who had been, and for all that appears, then was the attorney and counsel of Dilger and Raichle, to search the title for him, and by the testimony of Strong it is established that Wagner did search the title, and found the agreement on record as above stated, although, whether he searched for Dilger and Raichle, or Frank, is not quite clear. But at all events, it sufficiently appears, that at about 12 o’ clock at noon, on April 23,1878, at which time Frank concedes the relation of attorney and client existed between himself and Wagner, the latter had an interview with Strong, the attorney of the bank, during which the agreement between Wolff and the bank, and the errors in the recording thereof, were discussed between them, and that Frank took his assignment, and parted with the consideration therefor, subsequent to said interview, and put the said assignment on record at 3.45 P.M. on that day. Wolff and Frank had not met before that day, and no communication of any importance ever passed between them, either before or at the close of the transaction resulting in the assignment. So far there is no conflict in the testimony, nor any room for doubt, for Wagner was not called as a witness to contradict either Strong or Frank. On the contrary, it was admitted, for the purposes of the trial, that Strong’s testimony is true. Frank, therefore, though his attorney, must have had knowledge of the true state of affairs, unless he was a mere dummy for Dilger and Raich!e, and as such had agreed not to know anything. He swears, however, that he purchased the bond* and mortgage in question for his own account, and that at the time of such purchase, and the acceptance of the assignment, he was ignorant of the existence of any agreement whereby Wolff had consented to waive the priority of that mortgage. That may have been so; and there being-nothing in the case which compels me to disbelieve him upon this point, I shall assume that it was so; but in view of the other uncontroverted facts, it is not enough. Though he may have been personally ignorant, all the cases agree that the knowledge which his attorney had before the final close of the transaction, as above stated, was in law equivalent to notice to him (Bank of United States v. Davis, 2 Hill, 451; Ingalls v. Morgan, 10 N. Y. 178, 184, 185; Dillon v. Anderson, 43 Id. 231, 238; The Distilled Spirits, 11 Wall. 356).

Having, therefore, purchased, with notice of the rights of the bank, he cannot be held to have been a purchaser in good faith, though he may have parted with a valuable consideration.

The bank is, therefore, entitled to a finding- setting forth this fact; to an adjudication that it has a lien upon the mortgaged premises for the whole of the principal sum of $7,000, and the interest thereon from August 15, 1877, superior .to the lien of Martin Frank, by virtue of his said mortgage; and to the usual decree of foreclosure to carry this adjudication into effect.

The only remaining question relates to the liability of Raichle and Dilger, as original mortgagors for a possible deficiency under the mortgage held by Frank.

That mortgage was executed by them to Julius T. Wolff, March 31, 1868.

Subsequently, namely, by deed, dated April 14, 1868, they conveyed the mortgaged premises to Charles A. Bnddensick, who, by deed, dated March 1, 1869, conveyed them to Frederick Eppensteiner. Both Buddensick and Eppensteiner took title subject to Wolff’s mortgage, and assumed the • payment thereof. In equity, therefore, Raichle1 and Dilger became sureties for the payment of such mortgage from the time of their conveyance to Buddensick, and any subsequent agreement between the holder of the mortgage and the owner of the equity of redemption, or the holder of another mortgage, altering the manner of the payment of the first-named mortgage; or lessening the security afforded by the mortgaged prefnises for the payment of such mortgage, which was made without their consent, or remains unratified by them, releases them from the obligations of such suretyship (Caloo v. Davis, 8 Hun, 222; affirmed by the court of appeals).

That the agreement between Wolff and the bank was an agreement of this character, is not disputed. It was made upon a sufficient and valid consideration, and its effect was to materially lessen the security afforded by the mortgaged premises, and consequently to increase the responsibility of the mortgagors. And having been made, as the evidence shows, without the knowledge or consent of such mortgagors, and remaining unratified by them, it discharges them from all personal liability in the premises. No judgment for deficiency can, therefore, be given against them in favor of Frank.


author: By the Court.—Curtis, Ch. J.

text:
    JOHN W. HESSE, Plaintiff and Appellant, v. SAMUEL ELLIS BRIGGS, Defendant and Respondent.
    Before Curtis, Ch. J., and Freedman, J.

      Decided December 1, 1879.
    I. Party resident of the state, examination of before trial.
    1. Where it must be had.

      (a) In the county where the party either resides or has an office for the regular transaction of business in person.

      (b) Superior cohrt, effect of action being pending there.
    1. Notwithstanding this, a party resident of the State, but who neither resides nor'has an office, <fcc., in the county of New York, cannot be compelled to submit to an examination in that county.

    1. This although lie is party plaintiff.
    H. Costs of appe \l from order.
    1. When not awarded.

      (a) Where the point involved is one of practice, and is a new question presented for the first time.
    Appeal by plaintiff from an order denying a motion to vacate an order for the examination of the plaintiff before trial, and directing the plaintiff to appear and be examined, and that his deposition be taken pursuant to section 873 of the Code of Civil Procedure, before one of the justices of this court at chambers in the city of New York.

      M. R. Lawrence, attorney, and of counsel, for appellant, urged:
    I. The right of a party to examine an adverse party as a witness before trial, and the power of the court to order such examination, depend entirely upon the statute (Code Civ. Pro. § 870), aside from which no such right exists, and' the court has no power to make such an order

      II. Under the former Code of Procedure, an examination of an adverse party could be had either in the county in which the party whose examination was desired resided, or in any county in which he was served with a summons for his attendance (Code of Pro. § 391). The rule thus created by section 391 of the Code of Procedure was productive of many hardships, which came frequently to the notice of the courts, and in the case of Todd v. Hambden (41 How. Pr. 230), the court suggested an amendment which would obviate the difficulties thus created. The existing law upon the subject of the place where the examination may be had, is section 886 o,f the Code of Civil Procedure, which was designedly so framed as to repeal the provision permitting the examination in any county in which the party might be served with the process. That such was the object of the revisers is clear from the note of Mr. Throop to section 886 of the Code of Civil Procedure (See Throop’s Code of 1877). The object in question has been clearly accomplished by the enactment of the section last named, which is in clear and definite language, of unmistakable meaning. Section 886 of the existing Code of Civil Procedure is clearly designed to prevent residents of the State from being obliged to attend for examination in any county other than that in which they reside or have a regular office for the transaction of business, in person (See Code Civ. Pro. § 886). In a recent case, determined by the general term of the supreme court in this department, it was held that a party cannot be compelled to attend for examination as a witness before the trial, except in the county where he resides, or has a place of business (Marsh v. Woolsey, 6 Weekly Dig. 532). The power, both of the supreme court and of this court, with reference to this subject, is derived from and limited by the same sections of the same statute (Code Civ. Pro. §§ 870-886). There is no possible distinction between the powers of the two courts on this subject. If the legislature has made it impossible to examine before trial, in an action in this court, an adverse party, who neither resides nor carries on business in the city of Hew York, the court cannot supply the omission. There being no power conferred upon the court by any statute whereby it can compel the attendance of a non-resident party, in such a case as the present, and the fact of the plaintiff’s non-residence appearing from the papers on which the order for examination was applied for, the order should not have been granted, and, when granted, should have been set aside upon the plaintiff’s motion. The facts appearing from the papers originally presented, the order was without jurisdiction, and consequently void.

      George C. Lay, attorney, and of counsel, for respondent, urged:
    I. Section 886 of the new Code was not intended to apply and does not apply to the superior city courts. This section was enacted to correct an abuse and prevent annoyance. The appellant would so construe it as to deny the respondent an important right granted by the old Code and re-affirmed by the Code of Civil Procedure, viz. : The right to examine an adverse party before trial. The effect of a strict and technical construction of this section is to deprive the superior court of jurisdiction to examine a plaintiff before trial in the city of Hew York, because he lives in an adjoining county, and has no place of business in Hew York, although he has chosen this jurisdiction in which to bring his action, and comes to Hew York daily, (a) It is a rule in the construction of statutes that wherever the statute works a change in the existing law, it is necessary to take into account the old law, the evil which the statute makers intended to rectify, and the remedy they have provided. The effect of this rule is to confine the remedy to the evil or mischief to be rectified, even though the words on their face have a broader meaning. Under the old Code a party residing in a far distant county might be compelled to attend before a judge in New York because served with a summons for hjs attendance, while temporarily in this city. This power was often abused by litigators and was productive of many hardships. The section in question was passed to correct these abuses, ("d) Section 886 by its terms allows the examination of a non-resident of the State in any county of the State where he may be served with a subpoena. It appears from this provision that the legislature did not intend to deprive a party of his right to examine his adversary in any case, but only to avoid making the examination an oppressive and annoying proceeding.
    II. The section of the statute under which the appellant claims immunity from examination, is a remedial statute, and should be liberally construed. By a strict construction of the language used, the intention of the legislature is violated, while by confining the operation of the rule to cases which it was clearly enacted to meet, no violence is done to reason or justice. There is abundant authority for disregarding the plain words of a statute when they manifestly conflict with the intention of the law makers, otherwise clearly expressed. There are several maxims which seem to apply—“ boni judicis est ampliare jurisdietionem,” applied in Broom’s Maxims to construction of statutes (Broom Leg. Max. 82). “Reason is the soul of the law. Oessante ratione legis, cessat ipsa lex.” The intention of the legislature is to be gathered from other acts in pari materia, as well as from the act itself. Sometimes it is to be collected from the cause or necessity of the statute, and sometimes from other circumstances; and wherever it can be discovered, it ought to be followed with reason and discretion in the construction, although such construction seems contrary to the letter of the statute. A thing within the intention is within the statute, though not within the letter, and a thing within the letter is not within the statute unless within the intention; such construction ought to be put upon it as will not suffer it to be eluded (Bac. Abridg. tit. “Statutes,” 1, 5, 10; People v. Utica Ins. Co., 15 Johns. 358; Jackson v. Collins, 3 Cow. 89).
    III. According to. the practice of the superior court governing non-residents of the county, the plaintiff stands in the same position as a non-resident of the State. As a non-resident of the county he has been compelled to file security for costs in this case. So far as this court is concerned, the plaintiff stands on the same footing as a non-resident of the State. The language of section 886 is simply, “ Where he is not a resident he shall not be required to attend in any other county than that wherein he is served with a subpoena, &c.” The plaintiff, a non-resident, voluntarily submits himself to this jurisdiction, and comes to New York daily, and was served with the order in this city. He would construe the statute to defy the order of the court, and claims entire immunity from examination in a case where justice demands it.
   By the Court.—Curtis, Ch. J.

It appears that at the time of the commencement of the action, and at all times thereafter, the plaintiff did not reside in the city and county of New York, but in the county of Kings, nor did he have any place for the transaction of business in the city and county of New York.

The right to examine the plaintiff as a witness before trial, and the power of the court to order such examination, depends entirely upon the provisions of sections 870 to 876, inclusive, of the Code of Civil Procedure. The latter section is as follows: i( Where a person to be examined as prescribed in this article is a resident of the State, he shall not be required to attend in any county other than that in which he resides, or where he has an office for the regular transaction of business in person. Where he is not a resident, he shall not be required to attend in any other county than that wherein he is served with a subpoena, unless, for special reasons stated in the affidavit, the order otherwise directs.”

The words “where he is not a resident,” in this latter section, when read in connection with the preceding sentence, show that it is a non-resident of the State that is referred to, and not a non-resident of the county. This reading is alone consistent with the language of the preceding sentence, and with the two restrictions therein contained. It, is, besides, but reasonable to .consider 'that the legislature, if it had intended to place the superior city courts upon a different basis from the supreme court in relation to this remedy, would have distinctly expressed it.

The question arises for the first time before the court, and hardly calls for the awarding of costs to either party.

The order appealed from should be reversed, without costs, and the order for plaintiff’s examination vacated, without costs.

Freedman, J., concurred.


text:
    MARY A. JORDAN, as Administratrix, &c., Plaintiff and Appellant, v. THE NATIONAL SHOE AND LEATHER BANK, &c., Impleaded, &c., Defendant and Respondent.
    Before Curtis, Ch. J., and Freedman, J.

      Decided December 1, 1879.
    Plaintiff’s attorney also an appellant.
    I. Costs.

    1. Attorney, when diposed on personally.
    (a) NON-WITHDRAWAL OF MOTION IN SEASON.
    1. Where a motion has been properly noticed by plaintiff’s attorney, but prior to its hearing plaintiff’s costs are taxed, judgment is entered and paid, and a satisfaction piece given, by reason whereof the motion cannot be maintained, and it does not appear that plaintiff, after the payment of the judgment, directed the attorney to proceed with the motion, the non-withdrawal of the motion by the attorney upon the payment and satisfaction of the judgment, is cause for imposing on him personally, in the discretion of the court, the costs of opposing the motion.
    Appeal by plaintiff from an order denying a motion for an extra allowance, made on behalf of plaintiff, with §10 costs of motion, to be paid by the plaintiff’s attorney personally, and by plaintiff’s attorney, from so much of the order as charged him personally with costs.
    The facts appear in the opinion.

      Wellesley N. Gage, attorney, and S. D. Seward, of counsel, for appellants, urged:
    I. At common law, an attorney is held answerable to the summary jurisdiction of the court for every act of official misconduct (2 Greenl. Ev. § 147). An attorney can only be required to pay costs incurred by fraud or gross negligence. In the case at bar there was no fraud nor negligence, and none was charged.
    II. The plaintiff had a right to enter judgment without notice, and to demand payment thereof of the defendant instead of issuing execution, if she preferred to do so, and she was not obliged to give personal notice to defendant’s attorney. The plaintiff’s proceedings in entering judgment were in all respects regular (Code, § 1,228, Amendment of 1879). Whatever the plaintiff or her attorney did was a relief and benefit to the defendant, it obviated the hearing of the motion for an extra allowance on the merits, which allowance, had plaintiff not proceeded as she did, would, doubtlessly, have been granted. The defendant, by reason of the plaintiff’s acts, was saved the expense of the sheriff's fees on execution ; hence, all that the plaintiff did after making the motion inured to the benefit of the defendant. There are no grounds upon which the court is justified in imposing a fine upon the plaintiff’s attorney, and no act of the plaintiff or her attorney did, or was calculated to injure or prejudice the rights of the defendant, in the remotest degree.
    III. The plaintiff, on the adjourned day, was regular in stating to the court, through her attorney, what had been done, and to ask leave of the court to withdraw her motion. And under the circumstances it wrould seem she should be allowed to do so without terms. It has not been the practice, where a motion for an extra allowance has been made, to deny or grant the same with costs, and in Schwartz v. Poughkeepsie Mutual Fire Ins. Co. (10 How. Pr. 93), Brown, J., said, “costs of such motions have not, and should not, be allowed” (See, also, Dickson v. McElwain, 7 How. Pr. 139, 140). Ho previous notice of the plaintiff’s intention to withdraw the motion was necessary, and would have been of no avail. The application must be made to the court when the motion is called.
    IV. A party has a right to discontinue an action, and has the same right respecting a motion; the motion, therefore, should not be denied on the merits.
    V. An attorney cannot be subjected to fine or imprisonment, except for some misconduct as such (Code, §§ 14, 15). The case at bar does not present facts for which an attorney should be subjected to fine or imprisonment. The plaintiff, to prevent further delay in the entry and collection of the judgment, which, in any event, must be an injury to the estate she represents, chose to waive her right to an extra allowance rather than incur the risk and expense attendant upon such delay. This was her privilege, and, under the circumstances of this case, her obvious duty. The attorney should not be fined for following his client’s instructions, in protecting his legal rights in a lawful manner. The order appealed from states no ground for imposing the fine on plaintiff’s attorney (Matter of Kelly, 59 N. Y. 595; 62 Id. 198).

      Henry N. Beach, attorney, and of counsel, for respondent, submitted no points.
   By the Court.—Curtis, Ch. J.

This motion came on to be heard August 27, 1879 ; it was brought on by an order to show cause, granted August 22, 1879, returnable at one o’clock of that day, when, after stating the nature of the motion and that it was for an extra allowance, it was adjourned by the .court, on application of the defendant’s counsel, to August 27. Upon the last named day, it appearing that pending the adjournment the plaintiff had entered judgment, which had since been paid, the defendant’s counsel moved that the motion be denied, with costs against the plaintiff’s attorney personally, which was granted. In the statement of facts upon the appellant’s points it is mentioned that the plaintiff’s attorney, on August 27, asked leave of the court to withdraw the motion, but I fail to see that in the papers. The affidavit of the defendant’s attorney, which is not contradicted, alleges as follows:

‘1 That on the said 22d day of August inst., the plaintiff’s attorney taxed the costs of this action immediately after the said adjournment of said motion. That the said plaintiff’s attorney, the same day, without notice to deponent, entered judgment in favor of the plaintiff against the said bank, for debt and costs as taxed. That deponent is informed and believes, that said attorney for plaintiff, without notice to deponent, and without his knowledge of the entry of said judgment, took a transcript thereof to the president of said bank and demanded payment thereof; and by way of excusing his unprofessional conduct, represented that by its immediate payment to him the bank would save the sheriff’s fees, and thereby induced the said president, without any opportunity of consulting deponent, as counsel for said bank, to refer the matter to the cashier, with instructions to pay said judgment.
“That said cashier sent for deponent to consult him on the subject on the following day, the 23d inst., at the office of said bank, where he found the plaintiff’s attorney in waiting for payment of said judgment, and after examining the satisfaction piece, which was defectively acknowledged, the same having been re-acknowledged according to law, the said judgment was paid and satisfaction thereof delivered to said cashier of the bank, and the same has been discharged of record.”

It thus appears, that the defendants, after the final costs were adjusted, and after the payment of the judgment in full, and after the execution of the satisfaction piece, were compelled, without any counter. mand or withdrawal, to attend to oppose the motion for an allowance on August 27. This motion being in conflict with Rule 47 of the rules of the courts and the settled practice of the courts, could not be entertained, and was denied, with costs and disbursements to be paid by the plaintiff’s attorney personally.

The plaintiff herself, having been previously paid the judgment, and having executed a satisfaction piece, had no just right to direct the attorney who had represented her to bring on this motion for an allowance, and to argue it. Nor does it appear from the papers that she was then cognizant of such act, or authorized it. It was proper that provision should be made in the order for the payment of the defendant’s costs of attending and opposing the motion. The circumstances were such that even if there had been any liability on the part of the plaintiff to pay the costs, it was a proper exercise of the discretion of the court to direct their payment by the attorney. As the plaintiff’s relations to the litigation had ceased with the recovery and payment of the judgment and its satisfaction, there was nothing before the court on the present papers that disclosed any reason why she should pay, or be ordered to pay these costs, or that called for such an order. The person who, subsequently to the satisfaction of the judgment, claimed to act, or acted, as the plaintiff’s attorney, and brought on the motion, should, as between the two, more properly be called on to pay the costs of opposing, especially as he saw fit after this satisfaction and extinguishment of the judgment, to present such an application to the court.

The order appealed from should be affirmed, with costs.

Freedman, J., concurred.


text:
    FREDERICK BANFIELD, Plaintiff and Appellant, v. ANNIE C. HAEGER, Defendant and Respondent.
    I. Pleadings.

    1. Claim and delivery. —form of complaint held to present an ACTION FOR.

      (a) A complaint alleged that plaintiff is the owner of, and entitled to the immediate possession of certain property of a specified value ; that defendant became possessed thereof wrongfully, and plaintiff demanded the delivery thereof to him, which was refused, and defendant converted the same to her own use; and prayed the delivery of the property, with a specified amount for damages for its detention.

      Held,

    to present an action for claim and delivery.
    2. Construction of complaint, as determining what action is PRESENTED THEREBY.

      (a)- Tin,necessary allegations disregarded.

    1. Allegations unnecessary to entitle plaintiff to the relief he asks may be disregarded as superfluous.
    H. Warehouseman.—Bailee.

    1. Right of, to demand indemnity, when not entitled to so DEMAND.

      (a) He has no right to demand of a mortgagee (not his bailee), who finds the mortgaged goods in his possession, an indemnity against an adverse claim as a condition of delivery.
    2. Conflicting claims ; remedy of warehouseman.

      (a) To commence a suit in the nature of an interpleader.
    HI. Mortgagee of chattels.

    1. Right to delivery of mortgaged goods held by warehousemen (not his bailee), without indemnity.
    See Warehouseman, supra.

    IV. Interpleader.

    1. Warehouseman entitled to maintain.
    See supra.

    V. Claim and delivery.

    1. Dismissal of complaint ; what not cause for.

      (a) Neglect to prove value of goods and damages, is not, it appearing that plaintiff is entitled to a return of the goods.

      Before Curtis, Ch. J., and Freedman, J.

      Decided December 1, 1879.
    Appeal by plaintiff from an order dismissing the complaint and judgment thereon.
    The plaintiff, in his complaint, alleges that he is the owner, and entitled to the immediate possession of certain furniture therein described, of the value of $700 ; that the defendant became possessed of said property wrongfully, and the plaintiff duly demanded the delivery of said property to him, which was refused, and the defendant converted the same to her own use; wherefore the plaintiff demands the delivery of said property, with $200 damages for its detention, besides the costs of this action.
    The answer denies the allegations of the complaint, and alleges that the furniture was, before the commencement of the suit, duly levied upon by the sheriff, and taken from defendant’s possession by virtue of due legal process, of which the plaintiff was no tilled by the defendant, and was able to have protected his rights and title, if any he had, in the furniture. The complaint was dismissed at the trial. The plaintiff duly excepted, and appealed from the order and the judgment of dismissal.

      Stephen B. Brague, attorney, and of counsel, for appellant, urged, among other things:
    This is an action of claim and delivery. The learned judge below is too refined in his distinction, in holding that the word “wrongfully” converts this action into an action for trespass. There is no such distinction in the books. Now the fact is, that the defendant did come into possession of the goods wrongfully. No matter how innocently a person may come into the possession of property, the law decides that it is wrongful if derived from a thief, or from a person having no show of title, and no demand before suit is necessary (Farrington v. Payne, 15 Johns. 431; Pillsbury v. Webb, 33 Barb. 213; Pease v. Smith, 61 N. Y. 213). Here the property was in the possession of the plaintiff when it was run off, removed, carried away contrary to the statute (Laws of 1871, c. 77), in fact, stolen, for the statute only relates to the time before foreclosure; after default and taking possession of property, the surreptitious removal is a larceny, and any person converting it is liable in trover (Hoffman v. Carow, 22 Wend. 285, and cases above cited). Again, there was no defense to the action except the general denial. The case was proved on showing title, demand and refusal, and the answer setting up title in another was irrelevant ; for it is no defense to an action to recover property converted to allege title in another, unless the defendant connects himself with the title (Duncan v. Spear, 11 Wend. 54; Rogers v. Arnold, 12 Id. 30; Stowell v. Otis, 71 N. Y. 36).

      Platt, Gerard & Bowers, attorneys, and John M. Bowers, of counsel, for respondent, urged:
    I. The complaint is for an unlawful taking by the defendant; the proof was of a lawful reception by the defendant, and, at most, of a refusal to deliver only on conditions necessary to the defendant’s protection. The cause of action was, therefore, wholly unsustained by proof. The court was quite right in dismissing the complaint; it could not have done otherwise. The plaintiff insisted on his right to a ruling in his favor, and refused to amend or to ask the privilege of doing so.
    II. The complaint demands judgment that the property be returned, and for $200 damages for its detention. A return of the property could not be had in this action. Plaintiff should have brought replevin if he desired such remedy. No proof of damages, by reason of the alleged detention, was offered, and the court was obliged to dismiss the complaint.
    III. No refusal to deliver, on which an action for conversion could be maintained, was proved. Defendant at first acquiesced in the plaintiff’s claim, but on finding that the plaintiff's claim to the possession of the property was seriously disputed, asked indemnity. The course the defendant pursued was the only safe one for a warehouse-keeper, and is sustained by Ball v. Liney (48 N. Y. 6).
    IV. The mere possession and exhibition of a chattel mortgage, covering the property stored with the defendants, with no evidence that it had become enforceable, was not such proof of ownership and of the plaintiff’s right to take possession as to justify an action for conversion for refusal to deliver. The mere existence of the mortgage by no means changed the possession or right to the possession of the property, and it was certainly not enforceable against the defendant without some evidence of breach of its terms (Bliven v. Hudson River R. R. Co., 36 N. Y. 405).
    V. The equities of this case are all with the defendant. She innocently received the goods ; when the agent of the plaintiff called with his mortgage, although he showed no breach of its terms, she pe’mitted him to roam through the building in search of the goods, saying, if the mortgage was all right it should not be resisted ; and even when she found his title to the property was in litigation, still offered to give it up on being indemnified, but plaintiff refused all and any indemnity. The defendant did only what any prudent person would have done, and is entitled to the protection of the court; and as a very stringent provision of the law has been sought to be enforced against her, no variation of a pleading should be permitted to help the plaintiff to a new trial.
   By the Court.—Curtis, Ch. J.

The trial of this action appears to have been conducted on the theory that it was an action of trespass. The complaint alleges that the defendant became wrongfully possessed of the property in question, and also alleges that she wrongfully converted it to her own use. The prayer for relief demands the delivery of the property and damages for its detention. The language used in .the complaint may be construed as meaning that the defendant wrongfully took and unjustly detains the goods. This was the form, before the Code, of a declaration in the cepit et detinet. The provisions of the Revised Statutes, as to what the declaration shall allege in replevin (2 R. S. 523, § 36) have been to a considerable extent superseded by the provisions of the Code, respecting what is there designated as “ claim and delivery of personal property.” The Code does not change the requisites to maintain the action (Scofield v. Whitelegge, 49 N. Y. 260). The proceedings in the present action appear, tho'ugh not very clearly, to present the requisites to maintain it as an action to recover the possession of personal property. The allegation in the complaint, of the conversion of the property to the defendant’s own use, is consistent with a complaint in an action of trover, and the allegation of wrong on the part of the defendant in respect to acquiring possession of the property, was construed at the trial as an allegation of a tort in the nature of trespass. The requisites to maintain the proceedings m “ claim and delivery” are too distinctly defined to warrant a complaint presenting a triple aspect, and that may be available in replevin, trespass or trover, as the exigencies of future proceedings in the action may render desirable. But if parties elect to proceed to trial in a suit, where the complaint is so indefinite or uncertain that the precise nature of the charge is not apparent, the embarrassments occurring in the present instance are very likely to arise. The demand, for the delivery of the property and of damages for its detention, in the complaint, indicate that the pleader had in view an action under the Code for “ the claim and delivery of personal property.” That it is such is the only view I have been able to arrive at (Dows v. Green, 3 How. Pr. 377; Spalding v. Spalding, Id. 297; Scofield v. Whitelegge, 49 N. Y. 259).

Whatever facts are stated in the complaint, which were unnecessary to entitle plaintiff to the relief he asks, may be disregarded as superfluous.

The plaintiff appears to have been rightfully entitled to the possession of this property. The evidence discloses that it was removed from his possession while he was proceeding to foreclose a chattel mortgage in his favor that existed upon it, and that this was done surreptitiously and wrongfully ; that he demanded it of the defendant, in whose possession it was, as a warehouse-keeper, and that she refused to surrender it, unless a real estate bond of indemnity to the extent of $1,500 was given to her. I am not aware of the existence of any legal requirement that a mortgagee, finding the mortgaged property to which he has a right, of possession placed surreptitiously in a warehouse, is bound to give the warehouse-keeper a bond of indemnity, nor do I understand the cases cited by the defendant’s counsel (Ball v. Liney, 48 N. Y. 6; Bliven v. Hudson River R. R. Co., 36 Id. 405) to go so far as to sustain that view.

If there are conflicting claimants the course to be pursued is to immediately commence a suit in equity in the nature of a bill of interpleader against the claimants, and have the controversy, and the right to the possession of the property, -judicially determined (Ball v. Liney, 48 N. Y. 13).

The conclusions arrived at in regard to the pleadings, and the relief and nature of the action, considering it not as an action of trespass, but simply an action of replevin, are, as it seems to me, in accord with the views of the learned trial judge, while sitting as a referee in the'replevin suit of Levin v. Russell (42 N. Y. 253) and affirmed by the supreme court at general term, and by the court of appeals, and approved in Scofield v. Whitelegge (49 N. Y. 259).

The plaintiff had shown upon the trial of the action that he was at least entitled to the possession, or to be restored to the possession, of the mortgaged chattels (Levin v. Russell, 42 N. Y. 251).

Any failure of proof on the part of the plaintiff as to damages sustained by the detention, or as to the value of the goods, does not appear to have been among the reasons for the dismissal of the complaint, nor would the dismissal on such grounds have been tenable.

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

Freedman, J., concurred.