text:
    EMIL PONVERT, Plaintiff and Respondent, also Appellant, v. AUGUST BELMONT, Defendant and Appellant, also Respondent.
    I. Joint Defense at Joint Expense under an agreement therefor for the purpose of establishing, title to the subject of the litigation for the benefit of parties mentioned in the agreement.
    1. Expenses, what items included in.

      (a) Rents and profits of the subject of litigation, procuring THEM.
    1. Although the expense in procuring them is not an expense incurred in establishing the title, yet it is so connected with its establishment by increasing the benefit to be derived therefrom, in which increase the parties are interested under the agreement, that it falls within the items of expenses to be jointly borne.
    1. Belmont held two judgments against one Tylee, which were claimed to be liens on certain premises claimed to belong to Tylee in fee; Ponvert (of the firm of Chastelain & Ponvert), and one Shelton, held by assignment a mortgage on said premises, made by Tylee to Lovett, upon which a decree of foreclosure had been made; and also a certificate of a sale of the premises by the sheriff, under an execution issued on another judgment against Tylee. One Dempsey claimed the premises, and, before the recovery of the above judgments and assignment of the mortgage, liad commenced a suit against Tylee and Lovett for the recovery thereof. Pending this suit, and after the recovery of the above judgments and making of the mortgage, but before the sale under execution and the assignment of the mortgage, Tylee made an assignment to Chastelain (one of the firm of- Chastelain & Ponvert), and one Turner, for the benefit of his creditors. The asv signees had no funds with which to contest the Dempsey suit, and the creditors at large refused to contribute. Thereupon, shortly after the assignment, Ponvert and Shelton assumed the defense of the Dempsey suit, and defended it in Tylee’s name until he became inimical, and suffered the -bill to be taken as confessed against him, when under an order of the court, made July 24, 1848, Chastelain and Turner, the assignees of Tylee, made themselves parties to the suit, and thereafter the defense was conducted in their names. On December 12, 1849, Belmont and Ponvert and Shelton entered into an agreement, whereby it was agreed, among other things, that said judgments and decree should be paid, in a certain order named, out of the future proceeds of the property involved in the Dempsey litigation, and the balance of said proceeds, if any, should be paid to Chastelain & Ponvert and Shelton. The agreement then contained a mutual covenant between the parties that the Dempsey suit “should be litigated at the joint and equal expense of Shelton and Ponvert and Belmont, and that each should bear and pay one-half of all costs and counsel fees that had been incurred and paid by Shelton and Ponvert and Chastelain & Ponvert since the defense thereof was assumed by said Chastelain & Ponvert, and also all counsel fees and expenses thereafter to accrue until the final termination of the litigation.”
    Pending the Dempsey litigation, and also after its final termination, various suits were brought, on judgments recovered against Tylee subsequent to those mentioned in above agreements, and subsequent to the assignment by Tylee, to set aside that assignment as fraudulent and void, and to subject to the payment of those judgments the rents collected by the receiver appointed in the Dempsey suit. These suits were brought against Tylee’s assignees, the said receiver and Tylee. Tylee’s assignees defended them. There was also a proceeding in the Dempsey suit after its termination based on the petition of Ponvert to obtain from said receiver the proportion of the rents, collected by him, which said Ponvert claimed through the Tylee title.
    Held,
    that Belmont was bound under the agreement to contribute to the expenses of the litigation and proceedings had in and about the procuring of the rents.
    3. Expense of litigation.

      (a) Upon whom changeable in above put case.
    1. Ponvert having paid the whole of the expenses, he is entitled to reimbursement for one-half thereof from Belmont.
    1. Although ordinarily the expense incurred by an assignee for creditors in protecting and collecting the assigned assets, are first payable out of the proceeds before distribution, yet, where the protection and collection is carried on and undertaken for the benefit of certain creditors, under an agreement whereby they were to share in the fruits in a certain specified manner and bear the expenses, such parties are bound by their agreement, and cannot, although the litigation and proceedings were carried on in the assignee’s name, claim that the expenses should be paid out of the proceeds before maldng the disti'ibution called for by the agreement.

    Before Curtis, Ch. J., and Speir, J.

      Decided March 5, 1877.
    This action is a part of the litigation growing out of the agreement, in substance set forth in Belmont v. Ponvert (35 N. Y. Super. Ct. 208). It is based on the mutual covenant contained in that agreement, that the Dempsey suit “ should be litigated at the joint and equal expense of Shelton & Ponvert and Belmont, and that each should pay and bear one-half of all costs and counsel fees that had been incurred, and paid by Shelton and Ponvert and Chastelain and Ponvert since the defense thereof was assumed by said Chastelain and Ponvert, and also all counsel fees and expenses thereafter to accrue until the final termination of the litigation.”
    The action was commenced in 1860, and it is alleged in the complaint, that under the above covenant the defendant became liable to pay to the plaintiff a certain sum of money in respect of certain legal expenses incurred in the litigation therein mentioned.
    The answer admits the execution of the agreement alleged in the complaint, and the payment of $1,000 by the defendant, and denies each and every other allegation of the complaint. A further and distinct defense is set up, that the amount alleged in the complaint to have been laid out and expended by the several parties therein stated, and at the times stated, for costs, counsel fees, and expenses, was without the knowledge of, or notice to the defendant, and without his consent, and grossly in excess of and beyond a reasonable and proper compensation for the services rendered.
    On the trial it appeared that Daniel E. Tylee in 1843 claimed to be the owner of the undivided half of certain premises on Vesey, Greenwich, and Washington streets in this city. In the month of July of that year Jane Dempsey commenced an action against him, claiming title as against him to said undivided half of the premises, as heir at law of her sister Mrs Tylee.
    On June 30, 1843, Tylee executed a mortgage on the premises to George Lovett, to secure the payment of $13,000, upon which mortgage a decree of foreclosure and sale was entered in June, 1846, but was not executed, which mortgage and decree constituted the first lien on Tylee’s interest in.the premises. Shelton and Chastelain & Ponvert were creditors at large of Tylee. Ponvert and Shelton had purchased the Lovett mortgage, the first lien on the premises, and the decree thereon amounting to the sum of $13,000 and interest. Belmont’s judgment of $5,550.08, was the second lien. Brown and Neils on’s judgment for about $18,500, was the third lien, which was also purchased by Ponvert and Shelton, and another judgment of Belmont for $7,871.84, constituted the fourth lien on the premises.
    Other facts are stated in the head note.
    The case comes up on the report of the referee, who found in favor of the plaintiff on August 11, 1875, for $12,022.37, on which judgment was entered.
    Both parties appeal.

      Messrs. Bowdoin, Larocque & Barlow, attorneys for defendant; W. W. McFarland, of counsel.

      Messrs. J. S. Lawrence and C. W. Sandford, of counsel for plaintiff.
   By the Court.—Speir, J.

There was no property out of which this large indebtedness could be obtained, except the premises which were claimed by Mrs. Dempsey in the suit brought against Tylee. It was important, therefore, to sustain the title as the only source from which payment could be had. Ponvert and Shelton, and Chastelain & Ponvert were, at the time the agreement was executed, actually engaged in defending the Dempsey suit for the purpose of establishing Tylee’s title. The several parties holding these claims made common cause for the sake of preserving their several liens in their respective orders and seeming their payment. What inducements led the parties to enter into the agreement, other than as collected from its expressed terms, must, I think, be speculative. Whatever advantage, therefore, the parties may be supposed to have gained by entering into this arrangement other than is set down, need not be considered.

On the part of the defendant, the covenant is to the effect that his forbearance to redeem under his judgments, should in no way prejudice the lien of either of his judgments, or his right to their payment out of the future proceeds of the property, and that the future proceeds thereof, if sufficient for the purpose, should be applied in the order of priority of all the liens, and the balance, if any, to Ohastelain & Ponvert and Shelton.

The first mutual covenant is in effect that the said suit of said Jane Dempsey should be litigated for the purpose of establishing the title of the said Daniel E. Tylee in the said premises, at the joint and equal expense of the said Shelton and Ponvert and the defendant ; and that each should bear and pay one-half of aU costs and counsel fees that had been incurred and paid by the said Shelton and Ponvert, and Ohastelain & Ponvert in defense of the suit of Jane Dempsey, after the defense was assumed by Ohastelain & Ponvert, and all costs and counsel fees and expenses thereafter to accrue, until the final determination of the litigation.

The second mutual covenant is that neither of said judgments, nor the said mortgage decree, nor the sheriff’ s certificate should be used by either of the parties to the prejudice of the other, but for the purpose of perfecting the title to the premises, carrying out the agreement, and cutting off liens and incumbrances thereon.

Without the litigation of the Dempsey suit, and a decision sustaining Tylee’s title, there would be no property upon which these liens would attach. This covenant was therefore of equal importance to all the parties. All the covenants in the agreement are harmonious, expressing the whole intention of the parties, and, I think, are singularly clear and unambiguous, disclosing a common intent and purpose. It is to be observed that the legal status of all the parties interested at the time they entered into the arrangement is carefully preserved in their covenants, the terms and conditions of which are entirely prospective, binding the parties thereto, and all of them, to refrain from performing all acts which should lead to the prejudice of each other in attaining the common end of perfecting the title to the premises, in carrying out the agreement.

The defense of the Dempsey suit was necessarily made in the names of Tylee’s assignees holding the legal title. But the assignees had no funds with which to carry on the snit. Chastelain & Ponvert could not be made parties to the action, holding no title to the premises involved in the litigation, and had they not intervened, the defense would have fallen through for want of means to present it. They were, at the time the agreement was made, conducting the defense. With these facts before the parties, they make provision for the expenses of the litigation in establishing the title by the joint and equal expense of Shelton and Ponvert and the defendant. The referee, npon the evidence before him, finds that the defense of the Dempsey suit was, in fact, assumed by Chastelain & Ponvert, and continued until the end of the litigation, and that they were the only parties who were defending the suit, for the purpose of establishing the title of Tylee to the premises. Although the assignees were not parties to the record, it is enough that Chastelain & Ponvert assumed the defense of the suit, and that fact being well known when the mutual covenant was made for paying the expenses, it cannot be said that the defense was to be conducted at the expense of the assignees.

Before the decision of the court of appeals, in the case of Belmont v. Ponvert, it had been decided in this court (3 Jones & Spencer, 208), that Mr. Belmont under the agreement, acquired no right or interest in the rents, and that he must look exclusively for the payment of his judgments to a sale of the premises.

The decision in the court of appeals is in conflict with this decision in respect to such rents, and is to the effect that such rents were applicable to the payment of the judgments held by the defendant in addition to the proceeds of sale—that the rent of the premises received stands on the same footing under the agreement as proceeds of sale. The court say: “ These rents were the fruits of the litigation with Jane Dempsey, as clearly as would be the proceeds of a sale of land. It is not disputed that the title which Ponvert obtained to the land, was held by him for the benefit of the parties to the agreement, at whose expense the,, litigation had been carried on ; and it is difficult to see any ground on which those rents, obtained as an incident to that title, should take any different course from the proceeds of sale.” Opinion of the court of appeals by Rapallo, J., reported 63 N. Y. 547.

By the express terms of the agreement, the proceeds .of the property are to be applied to the payment of the mortgage decree, the judgments and the balance to Chastelain & Ponvert and Shelton, and no portion of the proceeds of the property are to be devoted to the payment of expenses. The logical result of the decision of the court of last resort is, that the plaintiff is to recover the value of the services of attorney and counsel in procuring those rents, as well as for the services in the Dempsey euit. It is difficult to see how the defendant, after receiving full payment of his judgments, can avoid contribution to the expenses of the litigation which by his covenant he agreed to make. The referee is fully sustained by the facts in evidence, and by the law of the case in allowing the claims of the plaintiff.

The decision of this court (3 Jones & Spencer),'that Mr. Belmont, under the agreement, acquired no right or interest in the rents, and that he was to look exclusively for the payment of his judgment to a sale of the premises, possibly misled the learned referee. He therefore, I think, improperly deducted one-half the amount paid by plaintiff for the services of General Sandford in procuring those rents. I also think he erred in disallowing the sums paid to certain other parties, whose services stand upon the same footing as General Sandford’s.

If these views be sound, it follows that the referee was not authorised in making the foregoing deductions, and it must be held, that the services in obtaining those rents, were to be compensated at the joint costs of all the parties to the agreement.

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

Curtis, Ch. J., concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    ALBERT ZIMMERMAN, et al. Plaintiff and Respondent, v. THE NATIONAL STEAMSHIP COMPANY, Defendant and Appellant.
    I. Witness.
    1. IMPOSSIBILITY OF FACTS SWORN TO, DISCREDITING BY.
    (<t) Impossibility in part only, not.

    Where the evidence shows that the fact sworn to is in part true and in part erroneous, arising from mistake or miscalculation or excusable exaggeration, the witnesses, as to the fact, are not wholly discredited.
    H. Reversal op judgment.—What not cause eor.
    1. Verdict for less, than plaintifi is indisputably entitled to, is not cause for reversal on appeal by defendant, if that be the only error.
    Before Sedgwick and Speir, JJ.

      Decided May 8, 1877.

      Appeal from a judgment entered on a verdict in favor of plaintiff, for $482.
    The action was to recover the value of certain china, glassware, and a few other articles, shipped by plaintiff on one of defendant’s vessels, for carriage to New York, which defendant failed to deliver.
    The plaintiff’s witnesses testified that the china, glassware, and other articles in question were of the value of $650, and had been packed in what they called a barrel. A portion of the china was referred to as being “ one fine English china dinner - set, complete, painted blue and gilt with flowers, value $150.”
    The glassware was referred to as “ one full set of cut glass- decanters and glasses, one dozen sherry glasses, one dozen champagne glasses, one dozen liquor glasses, two decanters, value $75.”
    There was testimony on the part of the defendant, that this glassware alone would fill a barrel; also that a complete dinner set consisted of 150 pieces, and that it would fill a cask of 20 cubic feet. There was evidence on the part of the plaintiff showing that china was usually packed in casks, and tending to show that the largest sized casks would contain all the articles, even taking the dinner set at 150 pieces ; that a complete dinner set might consist of 100 pieces or less, and that that which plaintiff’s witnesses called a barrel, was a large sized cask. One of the witnesses testified that he had seen casks in china manufactories, and always imagined a cask to be a very large barrel, and would speak of it as a barrel of china ; and the rare of freight paid tended to show that that which was shipped, by whatever name it might be called, contained 20 cubic feet. There was no evidence as to the value of the articles, except that given by the plaintiff’s witnesses.
    There was also a question as to whether a special agreement had been entered into, limiting defendant’s liability to $5.
    The defendant’s counsel requested the court to charge “that if the jury believed the testimony as to the utter incapacity of the package to contain the sworn contents, it will discredit all the testimony of the plaintiff, and authorize a verdict for nominal damages.”
    The court refused so to charge, and defendant’s counsel excepted.
    The court, in one part of the charge, instructed the jury, that if the special agreement were not made, the defendant “was liable for the amount of the goods shipped.” And in another part, “for the actual value of these goods.”
    The jury rendered a verdict for plaintiff for $482.

      B. C. Chetwood, attorney, and of counsel for appellant, urged:
    I. The verdict is clearly not only against the evidence, but also in the teeth of the judge’s charge. 1. By the evidence uncontradicted the plaintiffs should have recovered $741, or thereabouts. 2. If they failed to recover that amount, the only other sum mentioned was, “ five pounds sterling.” 3. If the jury believed the testimony of defendants, they could find only nominal damages.

    II. The judge charged them in terms to find, if they found at all for plaintiffs, either, 1. Amount claimed in complaint with interest; or, 2. The equivalent of five pounds sterling, in United States currency. The jury set at naught the evidence, and turned a deaf ear to the instructions of the court, and found an utterly unsupported verdict for $482.16. ‘ ‘ Where the amount of a verdict is determined by mere conjecture, and is not based upon any calculation warranted by the testimony, it will be set aside as unsupported by sufficient evidence” (Bauder v. Lasher, 5 Lans. 335). “To justify a verdict, the law requires such proof as will leave no reasonable doubt of the existence of the fact upon which it must rest ” (Sheldon v. Hudson River R. R. Co., 29 Barb. 226; see also Lough v. Romaine, 4 J. & S. 332 ; McDonald v. Walter, 40 N. Y. 551).
    III. Apart from all mistake on the jury’s part, we conceive the appellants have a good exception to the judge’s refusal to charge as requested. It is entirely within the principle of the charge, and undoubtedly defendants were entitled to have it charged, as requested. If explicit instructions are refused when asked to be given * * * * it is a cause for a new trial (Green v. Hudson River R. R. Co., 33 Barb. 25).

      John M. Bowers, attorney, and of counsel for respondent, urged:
    I. As to the claim that the defendants over valued their goods, and that such articles could not have been contained in the lost cask. The plaintiffs were Germans, and innocently speak of the package lost as a “barrel;” and the defendants seek to prove that the plaintiff Albert Zimmerman spoke of it to the witness Losee as an “ ordinary flour barrel,” seven cubic feet in size, and then called several witnesses, Bogers, Noonan and Alcock, to prove that such a barrel could not have contained all the articles testified by the plaintiffs to have been in the package lost. Bach of these witnesses, however, states that casks are very much larger than barrels, and one of them, Noonan, says that a cask would have contained all the articles named. Bach of them also states that if they had seen the package lost, they could have at once said whether it was a barrel or a cask. There can be no question but that it was a cask. It was so spoken of by Boumphrey, one of defendant’s witnesses, who says it was a cask ; and by Titherington, another of defendhnt’s witnesses, who says it was a cask. Both these witnesses resided at Liverpool, and both saw the lost package. The cargo book of the defendant also speaks of it as a cask ; and in the parcel receipt counterpart it is also spoken of as a cask. Both these exhibits were written by parties who saw the parcel. No other person who ever saw the cask gave testimony at the trial. The whole matter was properly submitted to the jury as a question of fact, and this court will not interfere with their verdict.
    II. The verdict could not, in any event, be set aside as against the weight of evidence, as the defendants made no motion for judgment (Peake v. Bell, 14 N. Y. S. C. R. [7 Hun] 454, and cases cited).
   By the Court.—Sedgwick, J.

The request to charge implied that in the case specified, the jury would have no right to say that there was any credible testimony as to what the package contained. This- is not a necessary result, for the jury had the right to perceive that the plaintiffs’ testimony was in part true, and the defendant’s testimony did not go the length of showing that the package could not have contained china of some value, to more than a nominal amount.

The judge instructed the jury (after leaving the question of liability of only £5, to them properly) that if that special agreement were not made, the defendants “ were liable for the amount of the goods shipped,” and in another place “the actual value of these goods.” The learned counsel for appellant supposes that this charge strictly held the jury to find a verdict in the amount sworn to by the plaintiffs’ witnesses, which was materially greater than the verdict. If it be the case, that the only error is that the jury did not find an amount as great as the evidence indisputably shows, then the verdict might be increased to the proper amount. The finding of the jury jvas not hurtful to the appellant, and cannot be complained of by it. The fact that the jury did not find the larger amount, shows that in their discrimination, they believed that the quantity was less than the witnesses testified to, from a mistake, a miscalculation of the fullness of the sets of china, or from excusable exaggeration, but not necessarily from intentional falsehood.

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

Speir, J., concurred.


author: By the Court.—Freedman, J.

text:
    JAMES LALLY, Plaintiff and Respondent, v. JAMES B. COLGATE and ROBERT COLBY, Defendants and Appellants.
    I. Check, payable in gold, made "without consideration.
    1. BONA-FIDE HOLDER FOR VALUE.
    (a) PATEE, WHEN HE 18, SO A8 TO ENTITLE HIM TO SEO OVER FROM THE MAKES.

    1. Where the maker drew his check for the purpose of making a gold loan, and without receiving at the time any consideration therefor, but relying on the promise of a third person to return its equivalent in currency, at the market rate of gold, on that day, by means of a currency check of the payee, and afterwards to adjust any fluctuation in the market value of gold occurring pending the loan in the mode usual in the case of loans of gold, delivered it to such third person for the purpose of being used by Mm to settle a rate of gold between Mm and the payee on a sale of coffee—(Such settlement is termed a conversion of the price of goods sold on credit from a gold to a currency price. One of the modes of effecting a conversion, and the one adopted in this case, is : A gold account is opened, then a note is taken for the approximate amount of the sale in currency. When the conversion is made the purchaser sends gold for the amount of the invoice, and receives from the seller an equivalent amount in currency at a fixed premium mutually agreed on, being ordinarily the ruling rate of gold at the time the conversion is effected; the gold account is then balanced by cash; a currency account is then opened wherein the purchaser is debited with the currency received by him. for the gold, and credited with the approximate notes; upon payment of the notes and whatever balance there may be on the currency account in favor of the seller, that account is balanced and the merchandize paid for). Such third person used the defendant’s check for settling the raté of gold between him and the payee, and received the payee’s two currency checks, drawn to his order, for an equivalent amount in currency, at the premium which was the ruling rate of gold at that time. One of these currency checks he indorsed and delivered to the drawer of the gold check, the other one he did not. The drawer of the gold check received and deposited the currency check delivered to him, and stopped payment of his gold check. The payee of the gold check had no notice or knowledge of the arrangement made between its drawer and the third person as to the manner in which it was to be paid for.
    Held,
    the payee of the gold check was a dona fide holder for value without notice and entitled to recover from the drawer.
    H. Notice.
    CHECK PAYABLE TO A PAYEE WHO HAD NO DEALINGS WITH DRAWEE, EFFECT OF AS NOTICE.
    In the above put case the fact that the check was drawn to the payee’s order when he had no dealings with the drawer, was not such notice to him that the gold check had not been paid for as to put him upon inquiry and make the check valueless to him until he had sent his curreñey check to the drawer of the gold check.
    IH. MAXIM.
    1. The maxim that “ When one of two innocent persons must suffer by the wrong of another, the one who enables such other to commit the wrong must suffer the consequences,” applied.

    IV. GOLD LOANS.
    1. Mode of effecting and repaying stated.
    V. GOLD SALES ON CREDIT.
    1. Oomersion of gold price into currency price, one of the modes of stated.

      Before Curtis, Ch. J., Sanford & Freedman, JJ.

      Decided May 8, 1877.
    The appeal was taken from a judgment entered in favor of plaintiff against defendants, upon the report of a referee.
    The case was tried before Henry E. Howland, as referee.
    The facts of the case, as well as the law bearing on them, appear in the referee’s opinion, which is as follows :
    “ This is an action on a gold check drawn by defendants to plaintiff’s order on the Bank of New York, dated April 8, 1873, for $5,123.50, payable in gold, and amounting in currency to $6,045.73.
    “ The check was made and received under the following circumstances:
    “ The defendants, who are bankers and extensive dealers in gold in New York city, on April 8, 1873, made what is called a ‘ loan of gold of the amount of $5,123.50 to the mercantile firm, of B. M. Bishop & Co., of Cincinnati, Ohio, through their agent, James A. Bobinson, a merchandize broker residing in New York city. Bobinson received the gold from the defendants for account of B. M. Bishop & Co., in the form of the check in suit to the order of the plaintiff, promising them to return its equivalent in currency at the market rate of gold on that day by means of a currency check of the plaintiff, stating that he wanted the gold to settle a rate of gold between the plaintiff and said B. M. Bishop & Co., any fluctuation in the market value, occurring pending the loan, to be afterwards adjusted in the mode usual in the case of loans of gold, which are effected as follows : The borrower receives the gold and gives an equivalent in currency, either in bank notes or a currency check, according to the value of gold at the time. When the loan is returned the borrower returns the same amount of gold that he borrowed, and the lender gives back the same amount of currency which was paid by the borrower. If gold is actually returned, there is no adjustment except to receive back the currency ; but if the borrower subsequently buys the gold of the lender, there is an adjustment, in case the price at the time of the purchase is different from the price at which the loan was made ; if gold is lower at that time, the borrower receives a difference in currency ; if higher, he pays a difference in currency.
    “The check was delivered to Robinson in the defendants’ office in Wall street.
    “ Subsequently, and on the same day, Robinson, as a broker acting for said R. M. Bishop & Co., delivered the said gold check to the plaintiff, who was a merchant in coffees and other merchandize in New York, for the purpose of effecting a ‘ conversion of the price of coffees previously sold by the plaintiff to said R. M. Bishop & Co.,’ on credit, from a gold price to a currency price.
    “ One of the usual modes for effecting a conversion in the trade, and the mode adopted in this case, is as follows: The goods having been sold for gold on credit, and notes taken for the approximate amount in currency, the purchaser sends the gold for the amount of the invoice, and receives from the seller an equivalent amount in currency at a fixed premium mutually agreed upon, that being ordinarily the ruling rate of gold at the time the conversion is effected. There is then a transfer of the account from a gold to a currency account on the books of the seller, and from that time the chargé stands in the currency account alone, and is balanced off in the gold account, and the credit continues until the notes become due.
    “ The delivery of the gold check was made at the plaintiff’s office, and the plaintiff, for the purpose of such conversion, gave to said Robinson his two currency checks on the Fourth Rational Bank of the city of Rew York of that date, for the equivalent of said gold in currency, one for $3,045.73, and one for $3,000, both drawn to the order of Benjamin P. Davis, the plaintiff’s bookkeeper, and by him indorsed to the order of said J. A. Robinson at his request. On the same day the plaintiff deposited the said gold check in the Fourth Rational Bank for collection. The plaintiff .had no dealing or negotiation with the defendants, and no knowledge of said Robinson’s promise to them to deliver his currency check to them on account of their loan to Bishop & Co., but he credited the amount of the gold check to Bishop & Co., upon the price of his said sale to them.
    “ The following morning, April 9, the defendants received from Robinson one of the plaintiff’s said currency checks for $3,045.73, indorsed by him to their order, inclosed in a letter written by him to their gold clerk, admitting his default in not returning the residue. They indorsed and deposited the said check in their bank for collection, and stopped payment of their gold check then held by the plaintiff. Robinson had drawn the money on the currency check for $3,000, received by Mm from the plaintiff on the afternoon of April 8. The plaintiff first learned that payment of the gold check had been stopped on the afternoon of April 9.
    “ On April 29, 1873, after the commencement of this action, the defendants returned to the plaintiff $3,045.73 in currency, under a stipulation that the same should not affect the rights of either party in this action, which is now prosecuted for the balance of the currency value of said gold with interest.
    “There is no doubt that the two transactions of April 8, viz. : the loan of the gold by Colgate & Co. to Bishop & Co., and the conversion of the price of the coffees bought by Bishop & Co. from a gold price into a currency price, though effected by the same broker were separate and distinct transactions, and that as between the plaintiff and the defendants, there was no privity.
    “It is in proof that the broker, Robinson, stated when he effected the loan from defendants, that he wanted it to settle the price of coffee for Bishop & Co. with the plaintiff, and promised to bring back the plaintiff’s currency checks at a future time. The plaintiff, however, was no party to this agreement between Robinson and the defendants, and could not be supposed to know anything about it.
    “Was the fact that the check was drawn to the plaintiff’s order such a notice to him that the gold had not been paid for, as to put him upon inquiry, and make the check valueless to him, until he had sent his currency check to the defendants %

    “The plan tiff was entitled to this amount of gold from R. M. Bishop &'Co., and it was brought to him by Bishop’s broker, in order to effect the conversion from gold into currency in the manner usual and customary in the trade. It was proved by all the experts called upon the trial, that deliveries of gold in blew York city were effected either by delivery of gold coin, gold certificates, gold coupons or gold checks.
    “The plaintiff, therefore, received this gold in one of the usual forms of delivery, and although it was in the form of a check drawn by a third person with whom he had no dealings, still it was the check of a well known dealer in gold, a firm as prominent in Wall-street, as dealers in gold, as any bank ; perhaps more so. And there was no evidence of notice brought home to the plaintiff, that the check had not been paid for at the time it was brought to him. And it was delivered to him as so much gold. The plaintiff had a right to presume that it had been paid for, or that the check had been drawn to. his order to simplify the transaction, as it was intended for him. Such a course is not unusual, according to the testimony in this case.
    “The testimony of experts to prove a custom has failed to establish an universal and well recognized custom.
    “It depends, according to the witnesses, xipon the circumstances of each case, and they nearly all agree that it is customary to draw checks to the orders of parties other than .those who pay for them. A similar transaction to this case was proved to have been effected with Bowie, Dash & Co. ; and the taking of Daily’s check in this transaction, and depositing it on Robinson’s indorsements, tends to affirm the transaction.
    “To establish usage, it must be well known and recognized, and so clear as to leave no doubt as to the existence, extent and meaning of the usage (Dawson ?>. Kittle, 4 Hill, 107).
    “Most of the expert testimony related to cases where there were direct dealings between the parties, as in the case of deliveries of stocks, sterling exchange, &c. Here there were no direct dealings betwéen the plaintiff and the defendants ; they owed no duties to each other; they were each dealing with another party through the same broker, and their duties were between themselves respectively and that third party. The fluctuations in gold, on the gold loan, were to be settled by Colgate & Co. and Bishop & Co., and the questions' of Robinson’s agency and right to receive the currency checks of Dally were to be settled between Dally and Bishop & Co.
    “If Colgate’s check had been paid at the bank to Dally, no action could have been maintained for the recovery of its amount; for Dally would have been a bona fide holder for value ; even if there were negligence on Ms part, he was entitled to hold it (Welch v. Sage, 47 XT. Y. 143).
    ‘‘ Both the parties to this action having acted in good faith, it may be difficult to say which should suffer the loss ; but the defendants having so far clothed the defaulting broker with the indicium of ownership of the check, by giving him possession of it without any sufficient notice to the plaintiff that it had not been paid .for, or that Robinson or his principals, Bishop & Co., had no funds in their hands against which the check had been drawn, must be held liable to the plaintiff for the amount with interest (Barnard v. Campbell, 55 JY. Y. 456; Cartwright v. Wilmerding, 24 Id. 521; Weaver v. Barden, 49 Id. 286 ; Moore ». Met. Nat. Bk., 45 Id. 41; McNeil v. Tenth Nat. Bk., 46 Id. 325).
    “Henby E. Howland, Referee.”

      F. F. Marbury, Jr., attorney, and F. F. Marbury, of counsel for appellants, urged:
    I. The check of the defendants was given to Robinson at his request, to be used in the conversion of gold into currency, in a transaction between the plaintiff and R. M. Bishop & Co., of Cincinnati. It was to be paid for in its equivalent in currency, by the check of the plaintiff to the order of the defendants. Defendants’ check was drawn to the order of the plaintiff, and the plaintiff, in paying for it, should have drawn his check or checks to the order of the defendants. The checks were negligently drawn to the order of Robinson.
    II. If the defendants had intended to trust Robinson, or his firm, the gold check would have been drawn to his or their order, but this was intentionally avoided. The delivery to Robinson of certificates or of gold, was expressly refused, and to prevent any loss, the precaution was adopted of drawing the check to plaintiff’s order.
    III. The defendants did not owe plaintiff anything, and when the check was delivered to him, payable to his order, it was notice to him, that the check back should be drawn to defendants’ order. ,The slightest caution or consideration on the part of Davis would have prevented any loss.
    IV. If, instead of drawing two checks to the order of Robinson, one of the members of the firm of Robinson & Rockwell, to accommodate him, as Mr. Davis states, he had drawn the check to defendants’ order, or even taken the trouble to send or go up to their office, and inquire whether he was doing right, all this trouble would have been avoided. But he made the mistake of yielding to Robinson, who was just getting ready to abscond. It was an additional impropriety to draw a check to the individual order of Robinson, one of the members of a firm.
    V. Mr. Davis had no right to draw these checks to the order of Robinson. When Robinson went to plaintiff’s office, he did not bring a check payable to the order of himself or his firm, but to the order of the plaintiff. Plaintiff knew defendants owed him no gold, and the first idea which would occur to any prudent person would be, “I must pay defendants Sor this gold, or get their consent to the paying for it to any one else.”
    VI. Where one of two innocent persons mast suffer from the fraud and misconduct of a third, he who enabled the wrong-doer to perpetrate the wrong must bear the loss. Plaintiff, through Davis, was the approximate cause of loss.
    VII. Robinson did not have some, or the usual evidence of title. The check was not payable to his order, but to plaintiff’s, and that for a reason and to exclude the idea that it was Robinson’s property,
    VIII. The title to the check was not in Robinson’ s, but another payee’s name—the plaintiff’s was expressly inserted. Robinson had no control over, nor could he use the gold check. It was drawn to the order of the plaintiff, and by him only could be used.
    IX. Mere possession of a check, drawn to the order of a third person, does not clothe the person having possession, with the indicium of ownership.
    X. The rule in regard to the discount or sale of negotiable paper cannot control this case. It rests upon its OAvn peculiar facts and circumstances. If Robinson had taken a check payable to his own order, and negotiated it to a bona fide holder for value, the rule Avould apply.
    XI. As to the relations between defendants and R. M. Bishop & Co., there was no credit given or expected, except to the extent of the fluctuations in the premium of gold. On all these conversions of gold accounts into currency ones, the giving of the gold and the taking back of the currency were to be simultaneous. The inode of conversion is referred to in Davis' testimony. Robinson & Rockwell or Robinson were only to arrange for the conversions.
    XII. The preponderance of evidence as to usage is decidedly in favor of defendants, and this must be so from the nature of the case. The usage as testified to by defendants’ witnesses is, that where gold is delivered to a party in the form of a check, payable to his order, the currency check in payment for it is returned payable to the order of the party who drew the gold check. It would add frightfully to the risks of business if checks could be drawn to the order of any one who delivers gold or stock, instead of to the order of the parties from whom the stocks or gold in point of fact came. In this case there was express and distinct notice that gold came from defendants, Avho alone Avere the parties entitled to receive payment therefor.

      Joseph A. Welch, attorney, and of counsel for respondent, urged:
    I. The defendants wholly failed to prove a commercial usage in New York, requiring the plaintiff to communicate with them before receiving the gold check. All the witnesses on this subject agree that it is usual to issue gold checks drawn to the order of third persons, and collect for them from the immediate purchaser or borrower ; and to receive gold checks drawn payable to the party receiving them, for the account of the party immediately delivering them, and pay that party for them, and not the drawer.
    II. Had the procurement of the gold check from the defendants been effected by a fraud on the part of Robinson, even that fact would not constitute an equity in their favor against the plaintiff, who is a bona fide holder for value (Clothier v. Adriance, 51 N. Y. 322 ; Paddon v. Taylor, 44 Id. 371; Barnard v. Campbell, 58 Id. 73). (a) The title of the plaintiff to this check could only be impeached by proof of bad faith in him in taking it (Welch v. Sage, 47 Id. 143; Belmont Bk. v. Hoge, 35 Id. 65 ; Hoge v. Lansing, Id. 136 ; Magee v. Badger, 34 Id. 247).
    III. But, the defendants are estopped by their own act from asserting against the title of the plaintiff any supposed equity that they njay have had against their immediate purchaser. The check intrusted to Robinson was used by him, exactly in accordance with the defendants’ instructions. The present is not merely the ordinary case of apparent ownership, or apparent jus disponendi ; it is one of actual jus disponendi, if not of actual ownership. To employ the ordinary formula of the decisions, the defendants have so acted, that the natural consequence of their act has been to influence the plaintiff to change his conduct to his damage ; and they are chargeable with an intent, and even a willful design, to induce him to believe them and to act on that belief (Preston v. Mann, 25 Conn. 118 ; McNeil v. The Tenth Nat. Bank, 46 N. Y. 325; McWilliams v. Mason, 31 Id. 302 ; Van Dugen v. Howe, 21 Id. 531 ; Clothier v. Adriance, 51 Id. 322; Crocker v. Crocker, 31 Id. 507; Driscoll v. W. B. &c. M. Co., 59 Id. 97; Porter v. Parks, 49 Id. 565; Weaver v. Barden, Id. 286 ; Moore v. Met. Nat. Bk., 55 Id. 41; McNeil v. Tenth Nat. Bk., 46 Id. 325; Seybel v. Nat. Cy. Bk., 54 Id. 288; Ledwich v. McKim, 53 Id. 307; Turnbull v. Bowyer, 40. Id. 456 ; N. Y. & N. H. R. R. Co. v. Schuyler, 34 Id. 59, 60 ; Preston v. Mann, 25 Conn. 118).
   By the Court.—Freedman, J.

After a full and critical examination of the whole evidence, I am unable to see how the judgment can be disturbed. The cause has been fully and fairly tried. The findings of fact made by the learned referee, are supported by an overwhelming preponderance of the evidence ; his conclusions of law are a correct determination of the rights of the parties arising from the facts as found, and the opinion delivered with his report is such a complete and correct exposition of the law of the case, that in my judgment, it is unnecessary to add anything to it.

The exceptions to the referee’s findings and his refusals to find are clearly untenable, and the exceptions to his rulings, on questions of evidence,, appear to be equally so.

The judgment should be affirmed, with costs.

Curtis, Ch. J., and Sandford, J., concurred.


author: Speir, J.

text:
    SPECIAL TERM,
    NOVEMBER, 1877.
    RITTERBAND, Receiver, etc., v. BAGGETT and others.
    I. Corporations.
    1. COTTON EXCHANGE.
    1. Membership in, constitutes property, which is subject to be applied to the payment of the debts of the member.
    3. Restrictions on assignment of membership, by the by-laws, effect of. (a) Notwithstanding a by-law whereby an assignment can be made only to a member, or a member elect, the membership constitutes property; such by-law merely affects the use of the property.
    3. Compulsory application, how made.

      (d) The court may appoint a receiver of a member’s property, and then compel an assignment to such person (being a member or member elect) who shall become a purchaser from the receiver, or to a member or member elect, in trust, to.assign to such person (being a member or member elect) who shall become a purchaser from the receiver.
    3. BY-LAWS.
    1. Restrictions by, on sale or assignment of shares or right of membership, effect of.

      (a) Roes not destroy the character or incident as property, which such shares or right of membership otherwise had. .
    Before Speir, J., at special term.
    This was an action in equity by a receiver of a judgment debtor, appointed under supplementary proceedings, against the judgment debtor and his assignee in bankruptcy to compel an assignment of a seat held by the judgment debtor in the Cotton Exchange
    Macaulay & Co., on April 16, 1874, recovered a Judgment against the defendant Baggett, for the sum of $2,408.60, and issued execution thereon, which was returned unsatisfied, and supplementary proceedings were instituted resulting in the discovery of the property sought to be reached by these proceedings. The plaintiff, on July 17, 1874, was duly appointed receiver, and all the personal property capable of manual delivery which the defendant Baggett then had, was transferred in title to the receiver excepting such property as is exempt by law from execution.
    The New York Cotton Exchange was organized by an act of the legislature of the State of New York, passed April 8, 1871, for business purposes in the "city of New York. The membership is elective with certain provisions for a right to sell and assign the seat in the board subject to an election of the purchasing member by the board. The initiation fee for membership of the exchange is fixed at $5,000, and for which a certificate of membership is issued. On the surrender of this certificate to the treasurer a transfer may be made by him to a member or member elect only, notice of the intention to transfer having been duly posted in the exchange room for ten days, and no unsettled claims to members of the exchange having been presented against the party transferring. The treasurer is to be paid $100 for each transfer. The legal representatives of any deceased member may transfer such membership. By the charter the exchange is authorized to take and hold by grant, purchase or devise real and personal estate to an amount not exceeding $300,000, for the purpose of the association. The result is that as the number of members is limited and the dues are large, the right to a seat at the board has a money value. When a member fails to perform his contracts or becomes insolvent he can no longer be a member of the board until he resumes payment, including all penalties and charges, but his seat may be sold for his benefit or that of his creditors among the other members of the board. When a sale of the rights of membership is made, the sale is to be made by the superintendent of the exchange to the highest bidder at the exchange room, after ten days’ notice posted on the bulletin in the room. Any member may purchase the rights of membership of any other member which"shall give him the right to sell the same to any other member or members elect.
    About eight or ten months subsequent to the appointment of the plaintiff as receiver, the defendant Baggett, who before had become a member of the exchange, was declared a bankrupt, and the defendant, George H. Fletcher, was appointed his assignee. Thereupon a motion was made to compel the defendant Baggett to make an assignment of his seat to the assignee of the receiver, as the receiver, according to the rules of the cotton exchange, could not take such assignment personally, he being neither a member nor member elect. The demand for an assignment was based upon an offer which he had received from a Mr. Covas. On this motion the defendant Baggett claimed that the seat was not property, and that the assignee should be made a party. An order was duly made and entered by the court, making the assignee in bankruptcy a party, as necessary on the question of compelling such an assignment to be made. Hence, upon leave being granted, this action was commenced to compel Baggett to assign to a person to be designated by the receiver, from whom he may have received or should receive, an offer, according to the rules of the cotton exchange for his seat therein.

      Simon Sterne, of counsel, for receiver.

      E. R. Olcott, of counsel, for Baggett.

      Francis M. Scott, of counsel, for Cotton Exchange.
   Speir, J.

The appointment of plaintiff as receiver of Baggett, made in the supplemental proceedings under the Code, vested in him the legal title to all the personal property of Baggett. By force of the statute, Code, § 298, the receiver of the judgment debtor is subject to the direction and control of the court in which the judgment was obtained, upon which the proceedings are founded. This action was commenced by leave granted by this court, and the receiver’s appointment confers upon him the right to compel a discovery on defendant’s oath of all his property. I am of the opinion that the seat in the cotton exchange was an incorporeal right which Baggett had at the time he became bankrupt, and was, in the fullest sense property, and that the franchise and privileges secured to the exchange by its. charter and the high price of the initiation fee, show that it was valuable property. Nor can I doubt that, had there been no supplemental proceedings under which a receiver was appointed, it would have passed subject to the rules of the cotton exchange to his assignee in bankruptcy, and if there had been left in the hands of the members of the board any balance after paying the debts due to the members, and all penalties and charges, that balance might have been recovered by the assignee. The question whether the seat in the board was property has been fully settled in a late case, almost if not entirely identical with the case at bar (Hyde Woods, 4 Ott. 524). It is there held that a seat in such a board is not a matter of absolute purchase. That there is no reason why the stock board should not make membership subject to the conditions and rules of the board unless it is a violation of some" statute or some principle of public policy. The reason givends sound : ‘ ‘ -that the rule entered into and became an incident of the property when it was created, and remains a part of it into whose hands soever it may come” (see also Nicholls, &c. v. Eaton, 91 U. S. R. 716). The question being settled that the seat in question is property of value, I think it is the duty of the court to enforce its transfer for the plaintiff’s benefit in this action either to a receiver or to a third person qualified to work out the designs of the law. We have seen that' the personal estate of the debtor becomes vested in the receiver from the time and by virtue of his appointment. The entry of the order appointing the receiver, places the title of all the personal property in him. The provisions of the Code relating to supplemental proceedings were enacted for the purpose of making the property of the debtor available assets in his hands to pay his debts. By a by-law of the exchange this property cannot be assigned to any one but members and to members elect. It cannot therefore be assigned to the receiver as he is neither a member nor a member elect. If this property cannot be reached by the receiver by reason of the restriction placed on its transfer by the by-laws of the cotton exchange, then, to this extent, the object and intention of the Code becomes not only a dead letter but lifeless in spirit. These restrictions, however, do not form an insurmountable obstacle. Bights of property from time immemorial could be reached by a creditor’s bill, and it is now well settled that the same result may be accomplished by proceedings under the Code which furnish a substitute for that proceeding in chancery. Personal property passes to the receiver without assignment; but if an assignment be necessary to effect the purpose of the law, I do not question the power of the court to direct it to be done. It is not an indispensable requisite that such assignment should be made direct to the receiver. It may be made to such purchaser from him who is either a member or member elect of the exchange, or to a member or member elect to hold in trust to assign under the previous direction to said purchaser from him, or shall be either a member or member elect. I therefore direct an assignment to be made to Mr. Covas or some other competent and fit member of the cotton exchange-with apt and proper directions.


author: Freedman, J.

text:
    PAUL BATZEL, Plaintiff, v. OLGA BATZEL, Defendant.
    Divorce A vinculo.
    TRIAL BY JURY OF ISSUES OF FACT IN ACTION FOR ; RIGHT TO.
    1. Each party has both a constitutional and statutory right to such trial.

      (a) Reference or trial by the court can not be compelled.
    (5) Waiver. The right to a trial by jury may be waived in the manner prescribed by section 1009 of the Code of Civil Procedure.

    Sections 253, 206, 270, 271 of the Code of Procedure, Rule 40 (formerly 33) of the rules in force prior to January 1, 1878; sections 968, 969, 970, 1013, of the Code of Civil Procedure; chap. 15, of the report of the commissioners to revise the statutes to the legislature of 1877, 2 Edm. N. T. Statutes, 150, 1 Bev. Stat. 145, § 40; 1 B. L. 197; art. 1, § 2, Constitution of 1846, and IT 1, of § 6, of the so-called temporary act of June 2, 1877, referred to, commented on, and compared, with the above result.
    Before Freedman, J., at special term.

      Decided November, 1877.
    Motion by plaintiff to vacate order settling the issues to be tried by jury, and for an order of reference of the issues.
    The action is brought by the husband against the wife for a divorce on the ground of adultery.
    The defendant, by her answer, denied the acts of adultery charged in the complaint.
    Issue was joined August 15, 1877, and immediately thereafter defendant moved for an order, and on August 29, 1877, an order was granted and entered, directing the issues specified therein to be tried by a jury.

      Alfred Erbe, of counsel, for the plaintiff.

      Frank Malvesay, of counsel, for the defendant.

       The point whether a failure to make a special motion for an order directing issues, to be tried by a jury, under the provisions of section 970 of the Code of Civil Procedure, and rule 31 of the present rules of court, would operate as a waiver of the right to a jury trial, was not involved, nor was it discussed or determined.

   Freedman, J.

The order directing the issue of adultery to be tried by jury was regularly made.

Section 253 of the Code, then in force, provided that an issue of fact in an action for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived, as provided in section 266, or a reference be ordered as provided in sections 270 and 271. Section 266 provided that trial by jury might be waived, 1. By failing to appear at the trial; 2. By written consent, in person or by attorney, filed with the clerk ; 3. By oral consent in open court, entered in the minutes. The reference referred to could not be compelled, but ordered upon the written consent of the parties.

In addition, rule 40 (formerly 33) provided as follows : “In all actions for a divorce, when issue is joined by the pleadings, upon the question of adultery, such issue shall not be tried by á jury until the issue to be tried shall be settled in like manner as in other actions, where issues arising out of the pleadings are required to be settled.”

In the other actions thus referred to, if either party desired a trial by jury, he had to give, within ten days after issue joined, notice of a special motion for the settlement of the issues to be submitted to the jury.

The defendant in this case neither waived a trial by jury, nor did she consent to a reference, and as in all other respects she fully complied with the rule, her right to a trial by jury seems incontestable.

It is claimed, however, by the learned counsel for the plaintiff that the law upon the subject has been changed by the new Code of Civil Procedure which went into effect on September 1, last; that under that act a reference may be compelled by the court, and that this power extends to all trials had after the day named. Furthermore it is insisted that the evidence to be given on behalf of the plaintiff in this action is unfit for publication, and that for this reason, and in the interest of good morals, the court, in the exercise of the newly conferred power, should revoke the order of August 29, and substitute therefor an order of reference.

Section 968 of the new Code, it is true, in enumerating the actions in which the issues of fact must be tried by a jury, omits to name the action for a divorce, and such omission, as appears from the note of Commissioner Throop, was purposely made.

Equally true it is, that section 969 provides that an issue of fact, in an action not specified in the last preceding section, or wherein provision for a trial by jury is not expressly made by law, must be tried by the court, unless a reference or a jury trial is directed, and that under section 1013, all actions triable by the court without a jury, may be referred at the discretion of the court, and of its own motion, as well as upon the application of either party.

But the difficulty is, independently of the saving clause contained in paragraph 1 of section 6, of the so-called temporary act of June 2, 1877, first, that an action for divorce on the ground of adultery is one in which provision for a trial by jury is expressly made by law, and that consequently it falls within the exception contained in section 969 ; and secondly, that section 970 expressly provides that where a party is entitled, by the constitution or by express provision of law, to a trial by a jury of one or more issues of fact, in an action not specified in section 968, he may apply, upon notice, to the court, for an order directing all the questions arising upon those issues, to be distinctly and plainly stated for trial accordingly.

An action for divorce on the ground of adultery is one in which provision for a trial by jury is expressly made by law, because, though section 253 of the former Code was repealed by the repealing act accompanying the new Code of Civil Procedure, the repeal did not extend to the provision of the statute relating to divorces (2 Edm. N. Y. Statutes, 150, § 40), which makes it the duty of the court, if the adultery charged be denied, to direct a feigned issue to be made up for the trial of the facts contested by the pleadings, by a jury of the country at some circuit court.

The commissioners to revise the statutes, in omitting the action for a divorce from the provisions of section 968, did so because they intended to specially regulate the trial of such an action by a separate chapter. Their views upon this subject may be found in chapter XV of their report to the legislature of 1877; and in that the pre-existing right of trial by jury was preserved. The chapters subsequent to chapter XIII, however, failed to become law, and hence the statute above alluded to (2 Edm. N. Y. Statutes, 150), remains in force in its original form, and is to be taken together with sections 968, 969, and 970 of the new Code.

In addition to the statutory right thus existing, there is also a constitutional right to a trial by jury, of which the defendant cannot be deprived without her consent. To make this clear, recourse must be had to the origin of the jurisdiction of the courts of this country over matrimonial controversies.

In England, the matrimonial law was, prior to the American Revolution, administered by the ecclesiastical courts. The English colonists carried with them to this country their own English laws, except such as were inapplicable to their altered relations and circumstances. But they did not carry with them the courts of the mother country. Consequently, during the time intervening between the establishment of the colony and of the courts, the laws remained practically inoperative. Though, therefore, the courts of England have specifically held that the matrimonial law of the ecclesiastical tribunals is a branch of the law which colonists take with them, yet, as we have no ecclesiastical courts, and never had them, even in colonial times, it is plain that no tribunal in this country can take jurisdiction of marriage and divorce causes, without the authority of a statute. When a statute has given the authority, the tribunal is to exercise it, under the regulations of the statute, according to the law as expounded by the ecclesiastical courts. But in so far as the cause of divorce or the course of procedure is regulated by statute, the contrary practice formerly prevailing in the ecclesiastical courts of England is abrogated.

In the State of New York jurisdiction over actions for the dissolution or suspension of the marriage contract was, by statute, conferred upon the court of chancery, and the act conferring the jurisdiction provided, that if the adultery charged be denied, the court should direct a feigned issue to be made up, for the trial of the facts contested by the pleadings, by a jury of the country at some circuit court (1 R. L. 197).

This provision relating to a trial by jury was incorporated into the revised statutes (1 Rev. St. 145, § 40 ; 2 Edm. N. Y. Stat. 150), and existed at the time of the constitution of 1846, which provides (art. 1, § 2), as the constitution of 1822 had previously provided, viz: “ The trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever.” The word “heretofore,” as used in this clause, means before 1846, and it cannot, to limit its meaning, be carried back to 1777, and confined to the cases which, at that early period, were triable by jury (Wynehamer v. The People, 13 N. Y. 378, 427, 458).

Although, therefore, the issue or issues evolved by the pleadings were, according to the course of the ecclesiastical law, tried, not by a jury, but by the judge, who decided all questions both of law and of fact, and although the practice of the court of chancery, as it existed while this State was a colony, dispensed with trial by jury in all cases, except when specially directed by the court, the issue of adultery was, in this State, always required to be specially submitted to a jury, and at this time it must be so submitted, unless a trial by jury be waived in some mode prescribed by law.

There being no waiver in the case at bar, the motion for a revocation of the order awarding issues and the substitution of an order of reference, must be denied ; and as the question presented is somewhat novel, the denial should be without costs.


text:
    ALONZO BELL, Plaintiff, v. THE SUN PRINTING AND PUBLISHING COMPANY, Defendant.
    LIBEL.—PLEADING.—PARTIES, JOINDER OP.
    Where the words charged as libelous, arenot actionable per Be, the plaintiff cannot give evidence of any loss or injury sustained by the publication, unless it be specially stated in the complaint; and in such case the plaintiff must allege and prove that he has suffered some pecuniary damage by reason of the libelous matter.
    The sole office of the innuendo is to explain. It cannot introduce new matter, nor in any degree enlarge the sense of the words to which it relates.
    Where libelous matter is published concerning the wife, it is only when the action is maintained by reason of special damages to the husband that he can sue alone.
    The words charged in the complaint as libelous, which are given at length in the opinion, held, not actionable per se.

    Before Speir, J.

      Decided Dec. 26, 1877.
    The action was brought for the recovery of $100,000 damages for an alleged libel, published in the Sun, April 18, 1877. Defendant demurred, on the grounds stated in the opinion.

      E. G. Bell, for plaintiff.

      Willard Bartlett, for defendant.
   Speir, J.

The words in the complaint charged as libelous are the following: “Civil service reform has its lapses in the Interior Department. The examining committee which sat on Saturday included Dr. Warren, Clerk of the Board of Education, and hurriedly indorsed for dismissal a list furnished by a bureau officer. It included Miss Maggie Warren, a sister of Dr. Warren, a fact which was not ascertained until yesterday. To-day she was reinstated. Another fact recently came to light in regard to Bell, now Assistant Secretary of the Interior. Last winter Mr. Duell, Commissioner of Patents, Was dismissed for letting tracing be done by various persons under assumed names. Much scandal was occasioned at the time by this illegal procedure. It now appears that Bell’s wife [meaning the plaintiff’s wife] was one of those paid for this work in her maiden name.” The following is the innuendo: “That the said defendant, by said publications, did charge and intended to charge this plaintiff with being guilty of having procured money for his wife from the United States Government for services illegally under an assumed name.” The defendant presents two causes of demurrer to the first alleged cause of action: 1st. That it does not state facts sufficient to constitute a cause of action. 2. That there is defect of parties plaintiff in the non-joinder of the wife of the said Alonzo Bell. Although the complaint contains an allegation of general damages in its conclusions, to wit, “ That by reason of said false, scandalous, and malicious publication, the plaintiff has suffered loss in his good name, fame, credit, and reputation, and has been brought into suspicion, public scandal, contempt and disgrace among his neighbors, &c., and has suffered damages thereby in the sum of one hundred thousand dollars,” it does not contain any averment that the plaintiff has sustained any special damages. In an action for libel where the words are not actionable per se, the plaintiff cannot give evidence of any loss or injury which he has sustained by the publication, unless it be specially stated in the complaint. The language complained of is not actionable per se. When the words charged are not actionable of themselves, the plaintiff must allege and prove that by reason of the libelous matter he has sustained some pecuniary damages. As the sole office of the innuendo is to explain, it cannot introduce new matter, nor in any degree enlarge the sense of the words to which it relates. The publication complained of does not “ charge the plaintiff of being guilty of having procured money for his wife from the United States Gfovernment, for services illegally rendered under an assumed name,” as stated in the innuendo. There is no averment in the publication itself which can possibly be called libelous by any meaning of the words published having reference to the plaintiff, Bell. He is not charged with anything affecting him injuriously. Where there is no ambiguity in the language alleged . to be libelous, no innuendo is required to give point to the meaning. The charge that the Commissioner of Patents was dismissed for permitting an illegal procedure does not affect Mr. Bell injuriously in any way. The most that can be said, so far as it concerns his wife, is that the Commissioner of Patents was dismissed for the illegal procedure of letting tracing be done by persons under assumed names, and that the plaintiff’s wife was one of the persons paid for doing this work in her maiden name. If the Commissioner of Patents was guilty of this scandal, it is difficult to see how that affects Mr. Bell or his wife. Even if the demurrer admits that it concerns Mr. Bell, it does not constitute a libel upon him. If the words relate to his wife, the most they can mean is that in this alleged procedure she was allowed to do tracing work, for which she was paid in her maiden name. In business matters, a contract or obligation may be entered into by a person by any name he choose to assume. The law looks only to the identity of the individual (Doe v. Yates, 5 Barn. & Ald. 534; Waterbury v. Mather, 16 Wend. 611). It often occurs that a person is as well known by one name as another. In literature and the drama, writers and actors, being married women, are as well known to the public by their maiden names, as by the names they assume upon marriage. I am not aware that this practice or custom has ever been considered a defect or want of moral virtue, or the neglect of moral duty or obligation. Under the second ground of demurrer, the non-joinder of the wife, it is to be observed that even if the language complained of is actionable per se, the suit should be brought in the name of the husband and wife. It is only where the action is maintained by reason of special damages to the husband that he may sue alone. It is already apparent from the foregoing that there is nothing in the publication that affects the husband except by relation of his wife; Unless she be libeled there is not anything in the publication which entitles him to recover. The plaintiff is here claiming damages for a publication concerning a married woman, and which publication concerns him, because he is that married woman’s husband. If he, therefore, brings the action without joining his wife as a party, he must admit that the publication is not actionable per se. If the publication is actionable per se he must admit there is a defect of parties, owing to the non-joinder of his wdfe. In either case the defendant is entitled to judgment on the demurrer.


text:
    JAMES H. CARRINGTON, and another, Plaintiffs and Respondents v. CHARLES E. WARD, and another, Defendants and Appellants.
    Before Curtis, Ch. J., and Speir, J.

      Decided January 2, 1877.

      Thomas H. Hubbard, for defendants and appellants.

      William H. Arnoux, for plaintiffs and respondents.
   The plaintiffs, in July, 1870, held in possession one thousand one hundred and sixty-nine barrels, containing fifty-two thousand three hundred and thirty-nine gallons of oil, owned by one Compton, and subject to a lien of the plaintiffs to the extent of $15 per barrel for advances made by them to Compton.

The plaintiffs, at the request of Compton, sold to the defendants one thousand one hundred and sixty-nine barrels, and were instructed by him to collect as delivered $15 on each barrel, taking a receipt for the same from the defendants, and to credit them to the extent of $5,000, if they should deem it advisable. The plaintiffs sold to the defendants six hundred and seventy-one barrels of the oil which were received by them and they paid the $15 per barrel. They afterwards sold seventy-five barrels of the oil, and the defendants refused to pay the plaintiffs, claiming that Compton owed them, and they would credit him for the amount.

The court directed a verdict for the plaintiffs for the amount claimed with interest.

The defendants excepted, and brought this appeal,

Speir, J., wrote for affirmance, citing Nottebohm v. Mast, 2 Roberts, 249.

Curtis, Ch. J., concurred.


text:
    THOMAS C. CLARK, Plaintiff and Respondent, v. JOHN FLANAGAN and JACOB A. GROSS, Defendants and Appellants.
    Before Curtis, Ch. J., and Speir, J.

      Decided Jan. 2, 1877.

      Abel Crook, for appellants.

      Geo. M. Curtis and Jas. R. Angel, for respondent.
    Appeal from judgment entered on verdict for plaintiff, and from an order denying defendants’ motion for a new trial.
   The points involved were : (1). Was there sufficient evidence to take the case to the jury? (2). Was the evidence such as not to sustain the verdict ?

Speir J., wrote for affirmance with costs.

Curtis, Ch. J., concurred.


text:
    RUST, Plaintiff v. HAUSELT, et al., Defendants.
    Before Sedgwick and Sandford, JJ.

      Decided February 5, 1877.
    Motion for leave to amend order of reversal, by inserting a direction for a new trial, agreeably to the decision of the court at general term, the same having been inadvertently omitted.
    Motion granted upon terms.
   Decision per Curiam.


author: Curtis, Ch. J.,

text:
    SUSAN L. HARRIS, Plaintiff, v. SIDNEY DILLON, et al., Defendants.
    Before Curtis, Ch. J., and Speir, J.

      Decided May 8, 1877.

      A. H. Wagner, for plaintiff.

      Alex. Thain, for defendants.

      On the trial of this action, a verdict was directed for the defendants, and the plaintiff’s exceptions ordered to be heard ad the general term in the first instance.
    The appeal involved only the consideration of testimony.
   Curtis, Ch. J.,

wrote for denial of motion for new

trial, and that plaintiff’s exceptions be overruled, and defendants permitted to enter judgment upon the verdict with costs.

Speir, J., concurred.


text:
    JAMES W. PHYFE, Plaintiff, v. MICHAEL CAREY and PETER MASTERTON, Defendants.
    Before Curtis, Ch. J., Sedgwick and Speir, JJ.

      Decided May 8, 1877.
    At the trial, the court directed a verdict for the plaintiff, and directed the exceptions to be heard in the first instance at the general term, and the judgment in the mean time suspended.

      John Townshend, for plaintiff.

      A. H. Reavey, for defendant.
   Curtis, Ch. J.,

wrote that the defendant’s exceptions should be overruled, and judgment ordered upon the verdict, in the plaintiff’s favor, with costs.

Sedgwick and Speir, JJ., concurred.


author: Sedgwick, J.,

text:
    JAMES D. FOWLER, and another, Plaintiffs and Respondents v. JOHN KELLY, Defendant and Appellant.
    Before Curtis, Ch. J., Sedgwick and Speir, JJ.

      Decided May 8, 1877.
    Appeal from judgment entered on verdict for plaintiff.
    The only point involved was as to whether the evidence was such as not to uphold the verdict.

      Robert S. Green, for appellant.

      H. Daily, Jr., for respondent.
   Sedgwick, J.,

wrote for affirmance with costs.

Curtis, Ch. J., and Speir, J., concurred.


author: Per Curiam.

text:
    JOHN LEHMAIER, et al., Plaintiffs v. ALMON W. GRISWOLD, Defendant.
    Before Curtis, Ch. J., and Speir, J.

      Decided May 8, 1877.

      Lewis Sanders, for plaintiffs.

      C. A. Runkle, for defendant.

      Verdict directed for plaintiffs, and defendant’s exceptions ordered to be heard at the general term.
   Per Curiam.

Judgment for plaintiff on the verdict with costs.


text:
    HORACE B. CLAFLIN, et al., Plaintiffs and Respondents, v. HENRY J. MEYER, Defendant and Appellant.
    WAREHOUSEMEN, THEIR DUTIES AND RESPONSIBILITIES.
    Presumption op negligence arising prom non-delivery
    OP GOODS.
    The rule is well settled that upon proof of the non-delivery of goods stored with a warehouseman, a presumption of negligence arises, and the burden of proof lies with the warehouseman to account for the loss, and to show that it was not caused by want of proper care and diligence on his part. (See many cases cited by court.) .
    A larceny of goods occurring in consequence of neglect of warehouseman constitutes a conversion by virtue of a wrongful taking, and no demand by the owner is necessary after notification to warehouseman of loss of the goods.
    The fact that the goods were stolen from a U. S. bonded warehouse, and were bonded goods, does not change or affect defendant’s liability (Schwerin «. McKee, 51 JV. T. 180).

      Decided, June 25, 1877.
    Before Sedgwick, Speir and Freedman, JJ.
    Appeal by defendant from a judgment for $16,523.55 in favor of plaintiffs, entered upon the report of three referees.
    The action was brought to recover damages for a conversion of goods by a warehouseman.
    The answer was that the goods had been stolen without fault on the part of defendant.
    It was admitted that the warehouse in question was a United States bonded warehouse. On that proof, and the admission that the defendants were unable to deliver the goods in question to the plaintiffs, the plaintiffs rested their case.
    The three referees, at the request, by the consent, and in the presence of both the attorneys and counsel of the respective parties, and of the defendant in person, went upon and viewed the warehouse of the defendant in which the goods in question had been stored, and upon the proof and such examination they found, as matter of fact, that the goods in question had been stored by plaintiffs with defendant; that between November 11 and 13, 1871, the goods were stolen and carried away ; that the defendant was thereby unable to deliver the same to the plaintiffs ; and that the defendant, during the time the said goods were in his warehouse, did not use that care in keeping and protecting the same that an ordinarily prudent man would under the circumstances have exercised, and that defendants were guilty of negligence in not using such care. The referees also found that the goods were stolen without the knowledge, consent, and connivance of the defendant or any of his servants.

      R. W. Townsend, attorney, and A. R. Dyett, of counsel for appellant, among other things, urged :
    I.— The defendant, being a warehouseman, was liable only for ordinary care, which is that care that an ordinary prudent man would under the same circumstances have exercised in relation to the protection and safe keeping of his own property, and the referees so defined it; and he is not liable for goods stolen from his warehouse unless the theft be occasioned by his own gross negligence (Schmidt v. Blood, 9 Wend. 268). 2. ¡Negligence of whatever degree is an omission to do what ought to be done (Shearm. and Redf. Neg. §§ 2-6 ; 5 Denio, 255, 266 ; 4 N. Y. 349 ; 1 Duer, 571, 573). And some proof of such negligence must always be given by the plaintiff in every case, except in cases against common carriers of goods, who are liable apart from actual negligence, and carriers of passengers, against whom, from motives of public policy, a presumption of negligence is indulged (Wilde n. H. R. Co., 24 N. Y. 430 ; Leroy v. N. Y. Central Railroad Co., 22 Id. 514; Robbins v. Mount, 4 Robertson, 553; Moore v. Goedel, 7 Bosw. 591; 534 N. Y. 527 ; S. C., Eaken v. Brown, 1 E. D. Smith, 36, 44; Waldron v. R. & S. R. R. Co., 8 Barb. 395; Ross v. Fedden, 41 Law Journal [N. S.] Q. B. 270; McGinty v. The Mayor, &c., 5 Duer, 674). It is true that in this case, a failure by the defendant on demand to deliver the goods, prima facie, entitled the plaintiff to recover, but when the defendant proved, as he did, that the goods were stolen without the consent, knowledge or connivance of himself or any of his servants, as the referees found, the onus probandi was cast upon the plaintiff to prove negligence on his part (Arent v. Squire, 1 Daly, 347, at page 350, et seq.; Schmidt v. Blood, 9 Wend. 268; Foote v. Storrs, 2 Barb. 326 ; Bush v. Miller, 13 Barb. 489 ; Story on Bailments, § 454, and cases there cited; 2 Parsons on Contracts, 143; 6 Roberts. 419 ; 3 Barb. 383 ; 13 Barb. 489; 9 How.
      327 ; 20 Barb. 252; 22 How. 141). 3. There was no proof of >any negligence on the part of the defendant, and although the referees found that he did not exercise the care that an ordinary prudent man would under the same circumstances, have exercised in relation to the protection and safe keeping of his property, there was not a scintilla of proof before the referees as to what that care was—in other words, as to what ordinary prudent men would have done under the same circumstances in reference to the protection and safe keeping of their own property. There was no proof that any specific act or thing which ordinary prudent men—or any other men—for that matter—did, was omitted by the defendant. The referees, therefore, had no standard of comparison. 4. Besides, to charge a party with negligence, the acts or precautions omitted, forming the basis of liability, must be such as if done or taken, would probably have prevented the occurrence which occasioned the injury. And there must be some proof of this, unless the common experience of mankind will suffice to reach that conclusion (Daniel v. Metropolitan Rl., Law Rep. Com. Pleas, 1867-1868, vol. 3 ; Cochran v. Dinsmore, 49 N. Y. 249 ; The Russ. M. Co. The N. H. R. R. Co., 50 Id. 121). These elements are all wanting in this case. 5. The defendant, it must be remembered, is not a carrier of passengers, who is bound to adopt all and every known means to secure the safety of his passengers, but a warehouseman, liable only for neglect to use such means as ordinarily prudent men would, to protect their own goods in similar circumstances. Even a carrier of passengers, however, must be shown to know of the omitted means, precautions, or they must be so generally used, as to charge him with negligence in not discovering and using them (Steinwig v. Erie R. R. Co., 43 N. Y. 122 ; Bowen v. N. Y. C: R. R. Co., 18 Id. 408; Field v. Same, 32 Id. 399 ; Shearman and Redfield on
      Negligence, § 266 (a); Hegeman v. West R. R. Co., 13 N. Y. 9).
    II. The referees erred in allowing the duties, amounting to $4,707.83, as part of the value of the goods. 1. The defendants have never paid or been asked to pay those duties. 2. The condition of the bond that they gave for the duties is, that the duties should be paid upon the withdrawal of the goods from the warehouse by the plaintiffs for consumption. The felonious taking of the goods from the warehouse by thieves, without any complicity on the part of the plaintiffs, can hardly be said to be a withdrawal of the goods within the meaning of the act of Congress. The defendant, therefore, was not liable for these duties. 3. But if the defendant is liable to the plaintiffs for their property in these goods, he is equally liable to the United States for its special property in the goods, which is their lien for the amount of these duties, and the plaintiffs not having paid them, if the defendant pays them the money, he is unprotected from the claim of the United States against him for them, in case the plaintiffs do not pay them to the government.' See form of defendant’s bond as warehouseman to U. S., general regulation of custom and navigation laws of U. S. 1874, p. 240 ; also form of plaintiff’s bond to pay duties, Id. 262, Art. 598. And as to lien of U. S. for duties, Id. 213, Art. 466 ; necessity of permit, &c., Id. 368; Art. 774, and p. 268, Art. 612, to p. 271, U. S. revised statutes, sections 249, 2,652, 4,792, and section 2,960. Although the duties be a personal debt to the U. S. they cannot be collected by action until the goods be delivered to the importer, nor. at all events until after the three years specified in the bond, supra, and which had not expired when this action was brought. 4. As already stated goods in bonded warehouses are by the act of Congress in the joint custody of the warehouseman and the government, but these goods in fact, if stolen during the night or on Sunday, were in the sole charge and custody of the government. In either event the government is liable to the plaintiffs; in the one case jointly with the defendant, and in the other solely, and cannot recover from them the duties on the goods while unable for such a reason to deliver them. The plaintiffs it must be remembered are totally without fault in the premises. The expression in the act of Congress that goods in bonded warehouses are “at the risk” of the importer, does not cover negligence as one of those risks (Schwerin v. McKie, 51 N. Y. 180 ; Davenport v. Ruckman, 37 Id. at p. 574; Colegrove v. N. Y. & H. R. R. Co., 20 Id. 492). Nor does it mean that they risk anything more in any event than the loss of the goods. To illustrate : if goods be carried at the risk of the owner, actual negligence of the carrier is not included, but he is liable for want of ordinary care—the precise liability of the warehouseman (29 Barb. 132 ; 7 Hill, 533; 14 Barb. 524). In such a case the owner is not liable to pay freight. Indeed, the owner is not liable for freight if the goods be lost by any cause.
    III. This action is for a breach of the defendant’s agreement to deliver the goods, and not for negligence. It is the defendant who sets up, in substance, that the goods were stolen without his fault. It was admitted on the trial as well as shown by the regulations, supra, that the plaintiffs had no right to receive the goods from the defendant without a custom-house permit, and after the duties were paid, and they had never paid those duties, nor produced a permit. This is fatal to the right to recover. If the want of a permit could be gotten over, the objection that they had not paid the duties, would be fatal, for this reason: the plaintiffs had. no right to receive the goods from the defendant, nor had he any right, nor was it his duty, to deliver the goods to them. Until the plaintiff paid the duties, the United States had a Hen upon them for the amount of them, notwithstanding the bond, which was an additional security, and as the plaintiffs have sued for non-delivery, and not for negligence, whereby they suffered damages to the amount of their property in the goods, they must stand or fall by their complaint (Barnes v. Quigley, 59 N. Y. 265 ; Graham v. Reed, 57 Id. 681; Dudley v. Scranton, Id. 424).
    Arnoux, Ritch & Woodford, attorneys, and William Henry Arnoux, of counsel, for respondents.
   By the Court.—Freedman, J.

—It may now be deemed settled that upon proof of the non-deHvery of the goods stored a presumption of negligence arises, and the burden of proof is thereupon cast upon the warehouseman to account fully for the loss and to show that the loss, however it may have occurred, was not caused by any want of proper care and diligence on his part (Coleman v. Livingston, 36 N. Y. Superior C. [4 J. & S.] 37; reargued, Id. 231; and affirmed, 56 N. Y. 658 ; Burnell v. N. Y. Central R. R. Co., 45 Id. 184; Fairfax v. N. Y. Central & Hudson R. R. R. Co., in the court of appeals, not yet reported).

Under these decisions, and upon the evidence and a view of the premises, the referees were justified in finding that the defendant had not exercised the care that a prudent man would under the same circumstances have exercised in relation to the protection and safe keeping of his own property, and that in consequence of such neglect plaintiffs’ goods were stolen and carried away.

After the defendant himself had notified the plaintiffs of the theft of the goods, a formal demand upon him for the goods would have been an idle ceremony. The larceny occurring in consequence of defendant’s neglect constituted a conversion by virtue of a wrongful taking, and no subsequent demand was necessary after defendant himself had notified the plaintiffs of the loss of the goods.

The fact that defendant’s warehouse was bonded to the United States and that the goods stolen were bonded goods, does not change defendant’s liability. In Schwerin v. McKie, 51 N. Y. 180,. the court of appeals held that the provision of the act of Congress of 1852 (10 U. S. Stat. at L. 270), which provides that goods , deposited in a private bounded warehouse authorized by that act, shall be at the exclusive risk of the owner or importer, was intended solely for the benefit of the goverment, and does not relieve the warehouse-keeper from the duty of exercising ordinary care and prudence, nor from the liabilities of other warehousemen to their patrons.

The defendant admitted that the market value in the city of Mew York of the goods at the time of their loss and at the commencement of the action was $12,084.83. The referees therefore very properly gave judgment for that amount and interest. The fact that the duties on the goods had not yet been paid, cannot diminish this liability. Under the laws of the United States the plaintiffs are liable for the duties. They gave a bond for their payment, and the withdrawal of the goods from the warehouse makes them liable to pay the duty, no matter how, where, or by whom the goods were withdrawn (9 U. S. Stat. at L. 53).

The exceptions to the exclusion of evidence are clearly untenable.

The judgment should be affirmed with costs.

Sedgwick and Speib, JJ., concurred.


text:
    LOUISA B. COOPER and others, Plaintiffs, v. REUBEN SMITH, JAMES PLATT, and others, Defendants.

      Decided June 25, 1877.
    Verdict directed for the .defendants, plaintiffs’ exceptions to be heard at general term in the first instance (See report of same case on same ruling, 39 H. T. Super. Ot. [7 J. <& &] 453).
    The facts presented on the second trial of the case not differing materially from those presented on the former appeal, the decision on that appeal should have been followed on the second trial as the law. If there was error in the decision of the general term, the remedy was either by appeal to court of appeals or by motion for a re-argument.

      Held, that upon neither of the defenses in the case was the evidence so convincing or conclusive as to deprive the plaintiff of his right to have the facts considered by a jury.
    Before Sedgwick and Freedman, JJ.
    The action was to recover possession of a lot of land. It was originally commenced by Sarah L. Hudson, as plaintiff, and on her death Louisa B. Cooper was substituted as plaintiff.
    The issues were tried once before and a verdict directed for the defendants, plaintiffs’ exceptions to be heard at general term in the first instance.
    The general term sustained plaintiffs’ exceptions and ordered a new trial (See report in 39 N. Y. Superior Ot. [7 J. <6 &] 452, where the facts appear with sufficient clearness).
    On the second trial the evidence was substantially the same as had been given on the first trial. The only addition was the deed by Mrs. Berrand to Platt.
    The court directed a verdict for the defendants, and ordered plaintiffs’' exceptions to be heard at general term in the first instance. This ruling was made in consequence of defendant’s claim, that in the opinion delivered at general term after the first trial, there was a misapprehension as to a material fact.

      John Townshend, for plaintiffs.

      H. E. Tallmadge, for defendants.
   By the Court.—Freedman, J.

—The case has been twice tried. Upon the first trial, the plaintiff read in evidence the deed to Mrs. Watson, the judgment roll in the suit against Berrand and others, the execution and sheriff’s deed, and that defendant Smith was in possession under defendant Platt, and rested. Defendants than gave in evidence that Mrs. Lotta was in possession of the premises, from 1855, until her death in 1864, and the deed by Mrs. Watson to Yates, Porterfield & Wells, and rested. Plaintiffs then proved by Porterfield and Wells, that the said deed was given only to secure a loan made to Mrs. Watson, and that the loan had been repaid.

Defendants in rebuttal showed that the repayment of the said loan was made by Mrs. Berrand, with her own money.

Both parties rested, and the court directed a verdict for the defendants subject to the plaintiffs’ exceptions to be heard in the first instance at general term.

In sustaining plaintiffs’ exceptions and ordering a new trial (39 N. Y. Superior Ct. 452), the general term, as the case then stood, expressly decided that the judgment of the supreme- court in favor of Sarah Louisa Hudson, and against Isabella Berrand and others,' involving, as it did, the whole question of Mrs. Watson’s title, as well as the whole question of the title of the defendants in that action, was an effectual estoppel by record against Mrs. Berrand, shutting opt the defense set up in her answer to the present action, and that consequently the direction of a verdict in favor of the defendants was error. Part of such defense consisted of a claim of right of possession under and -by virtue of the payment made by her to Yates, Porterfield & Wells. In view of the point thus decided upon the facts before the court, the error occurring in the reasoning of the learned chief justice, who delivered the opinion, referring to the payment as having been made by Mrs. Berrand on behalf of Mrs. Lotta, instead of with her own money, is quite unimportant so far as it concerns only Mrs. Berrand and her co-defendants in the supreme court action. However the fact in that regard may have been, Mrs. Berrand was bound to litigate it in the first action, if she desired to litigate it at all. But even if it were otherwise, the remedy for the correction of the alleged error was either by motion for reargument or by appeal to the court of appeals. At all events, as the facts presented on the second trial did not, so far as they affect Mrs. Berrand or her legal representatives, differ materially from those presented on the former appeal, the decision that had already been made should have been followed as the law of the court. This being so, the plaintiff was entitled to the direction of a verdict against the administrator of the estate of Isabella Berrand, deceased.

The decision by the general term simply established, however, that by reason of t^ie estoppel, there was error in directing a verdict in favor of the parties estopped, and that such error necessitated a new trial, as against all the defendants. True, the general term did not say so in express language, but that was the decision. How, then, does the case stand now ? Neither Yates, Porterfield & Wells, nor Platt and Smith, were parties to the supreme court action, and if Platt has any valid claim to possession, it attached prior to the commencement of that action. His claim is founded upon a deed from Mrs. Berrand to himself, bearing date September 7, 1868, and he claims to have been in actual possession since that time, while the action by Sarah Louisa Hudson was not commenced until June, 1869. He therefore insists that even if said deed be insufficient to give him a good title in fee simple to the whole of the premises in question, it is at least sufficient to confer upon him all the rights of a mortgagee in possession; Smith is his tenant and as such his right to possession is, for the purposes of this case, identical with that of Platt. Under these circumstances, the parties whose joinder was omitted in the supreme court action cannot be held estopped by the judgment in that suit from now showing the true state of affairs; and in particular Platt is not estopped from showing, if he can, that under the deed from Mrs. Berrand he acquired at least the interest which Mrs. Berrand possessed in her own right, if, by virtue of her payment to Yates, Porterfield & Wells, she became a mortgagee in possession.

But upon neither of these defenses was the evidence so convincing that the plaintiff could be deprived of his right of going to the jury thereon.

As to the first it appeared without explanation that though the deed to Platt was dated September 7, 1868, it was not acknowledged or recorded until June, 1873. It also appeared that the said instrument was one more in the nature of a contract to convey than an actual conveyance, for it provided in terms that upon receipt of the consideration therein mentioned Mrs. Berrand should execute, acknowledge and deliver a proper and sufficient deed containing a general warranty and the usual full covenants for the conveying and assigning the fee simple of the said premises free from all incumbrances. Ho such warranty deed appears to have ever been executed.

Upon these and other circumstances that either appeared in evidence, or which the evidence failed to disclose, but which do not require special allusion at present, the plaintiff might have fairly argued,, that Platt was not in point of fact a bona fide purchaser prior to, or without notice of the supreme court action.

As to the second, it was upon the whole evidence, and especially in view of the absence of any written memorandum by Yates, Porterfield & Wells, a question of fact for the jury whether Mrs. Berrand’s payment to that firm was made so as to defeat the title held by them conditionally, or upon condition that such title should be kept alive and assigned.

Both defenses of Platt and Smith should have been submitted to the jury under proper instructions, and it was error to direct a verdict in their favor.

Plaintiffs’ exceptions should be sustained as against all the defendants and the verdict should be set aside and a new trial ordered with costs to • plaintiff to abide the event.

Sedgwick, J., concurred.