author: Parker, J.:

text:
    Thomas Kingsford, Respondent, v. George A. Butler, Appellant.

      Judgment by default before a justice of the peace —an attachment improperly issued treated as if no attachment had been issued — an unauthorized entry of judgment is not a technical eiror.

    It is the duty of a justice of the peace, upon the return of a summons that has not been personally served, to enter judgment by default, only when the record shows an attachment lawfully issued and regularly executed.
    Where an attachment has been improperly issued by a jxistice of the peace, the justice upon the return of the summons should treat the case as if no attachment had ever been issued, and in such a case where the summons has not been personally served, an entry of judgment by default against the defendant is unauthorized.
    The entry of such a judgment by default is not a merely technical error, and section 3063 of the Code of Civil Procedure does not apply to such a case.
    Appeal by tbe defendant, George A. Butler, from a judgment of tbe County Court of Oswego county in favor of the plaintiff, entered in tbe office of tbe clerk of tbe county of Oswego on tbe 29tb day of December, 1892, affirming the judgment of a justice of the peace of the city of Oswego.

      D. P. Lester, for the appellant.

      L. W. Baker, for the respondent.
   Parker, J.:

The facts disclosed by the appeal book in this action are substantially as follows:

A justice of the peace issued a summons in favor of this plaintiff against the defendant upon the 13th day of August, 1892. At the same time he issued a warrant of attachment against the defendant’s property. The attachment was levied by the constable on certain personal property of the defendant, and a certified copy of it, and of an inventory of the property so levied upon, and of the summons, were each left by the constable at the defendant’s last place of residence with a person of suitable age and discretion. No personal service of the summons was ever made upon the defendant, nor any service other than as above stated. The affidavit upon which the warrant of attachment was issued, was wholly insufficient. to give the justice jurisdiction. The case of Bump v. Daheny (36 N. Y. St. Repr. 114), is an authority precisely in point on that question, and its insufficiency is practically conceded on this appeal.

Upon the return day of the summons, no one appeared, on the part of defendant, and judgment was taken against him by default, in plaintiff’s favor for forty-seven dollars and twenty-five cents, debt and costs.

The defendant subsequently appealed to the County Court of Oswego county, where the judgment of the justice was affirmed, and from such judgment this appeal is brought.

There is no statute giving a justice of the peace authority to enter judgment against a defendant on default, unless the summons has been personally served upon him, except the provisions of section 2918 of the Code. By that section it is provided that when a defendant does not appear, and the summons has not been personally served upon him, nevertheless judgment may be rendered against him if his property “ has been duly attached by virtue of a warrant that has not been vacated.” The section further provides tliat tbe judgment so rendered is only presumptive evidence of indebtedness, and that it can be satisfied by execution only against tbe property so attached.

In tbe case at bar, therefore, tbe justice bad no jurisdiction to enter judgment against defendant, unless bis property bad been “ duly attached by virtue of a warrant that bad not been vacated."

It is true that tbe warrant which the justice assumed to issue bad never been vacated, but can it be said that defendant’s property bad ever been “ duly attached ” by virtue of it ? I think not. Tbe attachment was entirely unauthorized. It ought never to have been issued, and tbe property of tbe defendant ought never to have been taken upon it.

By section 2916, the justice is given authority, “ on bis own motion,” to vacate tbe attachment on tbe return of tbe summons if be deems tbe papers on which it was granted insufficient to authorize it.” Reading all these provisions together, I think it is the duty of a justice, on the return of a summons that has not been personally served, to enter judgment by default only when the record shows an attachment lawfully issued and regularly executed. For the want of a personal service of summons, he has never acquired jurisdiction over the person of defendant, and for the want of an attachment lawfully issued, the proceeding against the property of defendant is utterly unauthorized.

Not even as against the property attached has he acquired any jurisdiction, for clearly he cannot do so, by issuing a process he had no authority to issue, nor by omitting to vacate such a process after having assumed to issue it. On the return of the summons, therefore, the justice should have treated the case as if no attachment had ever been issued, and his entry of judgment by default against defendant was, therefore, unauthorized.

The respondent’s counsel claims that the defendant does not dispute the validity of the debt; that the errors alleged are purely technical, and that, therefore, under section 3063 of the Code, the County Court correctly affirmed the judgment. The difficulty with that argument is that the error complained of is not by any means a technical one. The question presented by this appeal is whether a justice of the peace may enter judgment against a party on default without first having, by some lawful process, acquired jurisdiction to do so. In tbe course of this action, tbe defendant lias not, as yet, been called upon to question tbe validity of tbe plaintiffs claim. When he shall have been lawfully summoned into court, or when bis property shall have been lawfully subjected to tbe judgment of tbe court, by tbe service of a lawful process against it, it may be that be will successfully defend against tbe plaintiffs claim; and until be lias been called upon to make bis defense, it can hardly be said that justice lias been done ” by rendering any judgment whatever against ,liim.

It does not appear, therefore, that tbe a/niount of tbe judgment even, is correct, and it does appear that tbe justice bad no jurisdiction to render any judgment whatever against defendant. To such a case, section 3003 does not apply, and tbe judgment of tbe justice should have been reversed.

MeewiN, J., concurred in result; HabdiN, P. J., not voting.

Tbe judgment of the County Court arid of tbe justice should be reversed, with costs.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Frank B. Brown, Appellant.

      Abduction — defense that the complainant was not of previous chaste character — conflict of evidence — when the verdict of the jury will not be disturbed — competency of evidence — charge to the jury.

    Appeal by tbe defendant, Frank B. Brown, from a judgment of tbe Court of Sessions of Onondaga county, entered in tbe clerk’s office of that county on tbe 14th day of December, 1891, adjudging him to be guilty of tbe crime of abduction, and also from an order denying tbe defendant’s motion for a new trial entered in said clerk’s office on tbe 16th day of December, 1891.
    Defendant was jointly indicted with Arthur Nunn and Nellie Nunn charged with tbe crime of abduction. The first count charges tbe inveigling of Lilly Long to tbe city of Syracuse, “ she being then and there an unmarried female of previous chaste character, into a certain hotel in the city of Syracuse known as the Clarendon Hotel, for the purpose of prostitution and sexual intercourse.” The second count charges that the same defendants did, on the 15th day of September, 1891, at the village of Bridgeport, in the town of Sullivan, county of Madison, “ inveigle and entice one Lilly Long, she being then and there an unmarried female of previous chaste character, from said village of Bridgeport and town of Sullivan, to the city of Syracuse, in this county, and into a certain hotel in said city of Syracuse known as the Clarendon Hotel, for the purpose of prostitution and sexual intercourse.” The third count charges that the defendants “feloniously did take, receive, employ, harbor and use, and cause and procure to be taken, received, harbored and used, one Lilly Long, she being then and there an unmarried female under the age of sixteen years, for the purpose of prostitution and sexual intercourse, against the form of the statute in such case made and provided.” A trial was had at the Onondaga Sessions and appellant was convicted. A motion for a new trial was made and denied and the defendant was sentenced to State’s prison at Auburn for the term of four years and seven months. Defendant appealed from the judgment and the order denying the motion for a new trial.

      Willimn Kenmsdy, for the appellant.

      J3. J. Shove, District Attorney, for the respondent.
   Hardin, P. J.:

In August, 1891, the defendant kept a hotel in the village of Bridgeport; he sent for Lilly Long to come to his hotel and employed her, and she commenced her services on the seventeenth of August; in the month of September Nunn and his wife visited the hotel, and while spending an evening there some wine was procured and a conversation held in respect to going to the city of Syracuse to attend the State fair which was to be held there in September. Mrs. Nunn suggested that they could stop at her cousin’s on Bear street. On Monday, the week of the fair, Mrs. Nunn sent word by the defendant Brown that she would be ready to start Tuesday morning. On that morning, September fifteenth, Lilly Long went to Mrs. Nunn’s and joined her, and they started for the city of Syracuse, driving a horse. Brown and Nunn started together and overtook them and passed them "When Mrs. Nunn and Lilly reached the city they drove to the Clarendon Hotel and found Nunn standing out in front; they alighted and went up into the sitting room and Brown and Nunn followed, taking some wine, and they all four of them partook thereof and had dinner shortly after. Free use was made of wine thereafter by the parties while they were together for some three days in the city of Syracuse, Apparently, Lilly first protested against the use of wine, but was assured by Mrs Nunn that it would do her no harm. During the afternoon, Nunn made some solicitation or proposition to Lilly, which she rejected, and they went to Gang’s saloon and obtained a meal, and were supplied with more wine -, apparently, they remained there until near eleven o’clock at night, when the four went back to the Clarendon Hotel, and from there to another saloon kept by a woman, at which they had more to drink, then they returned to the hotel and Nunn made some proposition that they all sleep together. After some conversation had between the two men one side, Mrs. Nunn took the complainant into a bedroom and told her to go to bed and left her there; the complainant undressed and went to bed, and shortly after she had gotten to sleep, the defendant Brown approached her room, opened the door, “ and that woke ’’ hei up The complainant testified, viz.: Brown spent the night with me there, and had sexual intercourse with me that night; I had never had intercourse with any other person before that night - in the morning Brown said, I wonder if Nunn has gone home yet; ’ he said if he got me in trouble that I could ask Mrs. Nunn, and she would see about getting me out; he 'said he wondered if Arthur had signed his right name, and I says, £ Why, didn’t you ? ’ and he said, ‘ F. P Baker; ’ I saw Mrs. Nunn that morning in her bedroom; she occupied room 26 on the second flight; that was on the floor above number 6.” It appears also by her testimony that the four parties stayed at the hotel, partaking of wine, and that the defendant would get it sometimes and sometimes Nunn, and that they remained at the hotel until dinner time ; they went out onto the streets Wednesday after dinner, and the defendant bought a dress for Lilly, and then the four went back to the hotel, and the defendant hitched up his horse and took Mrs. Nurin and Lilly to a saloon, where they remained until evening; when they returned to the Clarendon, they went into the sitting room, and apparently they were all somewhat intoxicated. After tlie complainant went to bed, the appellant visited her room and occupied the room with her that night. “ Nunn and Mrs. Nunn stayed in number 1, on the same floor with number 6, that night.” None of the parties visited the fair; they started to return to Bridgeport Thursday, and the complainant and Brown rode together until they approached the village and just beyond Messina Springs, when they all went to Mrs. Nunn’s house, some time after midnight, where they were supplied with whiskey ;■ the complainant remained there all night, and she returned to Brown’s hotel on Friday afternoon and worked that afternoon. In the course of defendant’s testimony, he admits occupying a room with the complainant on Tuesday night; he states, however, that when he reached her room, “ she got up and unlocked the door, and I went in and went to bed and stayed there all night; when I got in the room, the girl was getting into bed ; she was disrobed; ” and in referring to the second night, he says: “T got the key of my room at the office, and the girl went to bed first; in twenty minutes or half an hour afterwards, I went to bed. When I got up to the room, Miss .Long was in the room; she had her clothes off, and must have been in bed; the door was looked that night and I knocked; she wanted to know who was there, and I told her, and she got up and unlocked it; after I got in there was nothing of any account said between us that I remember. * * * After we went to bed that night she told me that Nunn had been to the room, and that she wouldn’t let him in. She said that Arthur had been to the room, but he couldn’t get in while I was around there. I remained all night with her, and got up perhaps eight o’clock the next morning; we all four had breakfast there at the hotel; we was around the city as usual that day. * * I bought her a dress there ; she asked me for some money at the Clarendon ; she said she wanted while here to get a dress and some things, and I told her to go to Dey’s and get what she wanted, and I would happen around there and pay for it, and she and Mrs. Nunn went up there, and before they came out I went up, and they had got their stuff, whatever it was, and I paid for it.” The defense made to the charge contained in the indictment seems to have been upon the theory that the complainant was not of previous “ chaste character,” and to substantiate it the defendant testified that previous to the -occasion of- being at Syracuse with her he had perpetrated several acts of sexual intercourse with her in his hotel, and he called witnesses who gave evidence tending to show she had allowed sexual intercourse prior to the excursion to Syracuse. Such evidence ivas contradicted. The complainant testified that defendant liad intercourse with her Tuesday night in the Clarendon Hotel, and that she had never had intercourse with any other person before that night.” After seeing the witnesses and hearing all the evidence the jury have found a verdict of guilty. There was such a conflict in the evidence that it was for the jury to ascertain where the truth was, and to determine the questions of fact presented at the trial. We cannot say the verdict is contrary to the weight of the evidence. It was natural that the jury should distrust and disbelieve the evidence given by the defendant and his witnesses as to thé acts of sexual intercourse alleged against her, and a want of chastity of the comyilainant prior .to the occasion of the defendant’s intimacy and intercourse with her at the Clarendon Hotel. We are not inclined to disturb the verdict upon the questions of fact presented to the jury by asserting our belief of the defendant’s testimony instead of the evidence furnished by the prosecution. Section 282 of the Penal Code provides that “A -person who * * * 2. Inveigles or entices an unmarried female of previous chaste character into a house of ill-fame, or of assignation, or elsewhere* for the purpose of prostitution or sexual intercourse, is guilty of abduction.” As already intimated, we think there was evidence before the jury which warranted them in finding all the material facts reqtured to bring the defendant’s case within the provisions of the statute. (People v. De Leon, 109 N. Y. 226.) We think there was sufficient evidence given tending to corroborate the complainant, and that the trial judge was warranted in saying, as he did in the course of his charge: It is for you to say whether this girl has been corroborated, or, in the language of the statute, supported.” (The People v. Brooks, 131 N. Y. 321 ; Penal Code, § 283 ; People v. Brandt, 14 N. Y. St. Repr. 419 ; People v. Everhardt, 104 N. Y. 594.) The appellant insists that a new trial should be had, because of alleged errors committed upon the trial by the court, and we must consider the exceptions :

(1) It was not error to allow the complainant to state the interview she had with Mrs. Nunn in the presence of the defendant, wdientalk was liad as to the excursion to be made to Syracuse or the fair, and that on that occasion all four of the parties drank together. Nor was it prejudicial to the defendant to allow the complainant to state that when she and Mrs. Nunn reached the city she inquired where they were to stop. It was the theory of the prosecution that Nunn and his wife were acting in concert with the defendant, and it was proper to show the acts and doings when carrying forward the plans to visit Syracuse, and what took place between them while acting together under a plan which the defendant had helped form and facilitated the execution thereof. The remark of Nunn, in the absence of the defendant, to the complainant, tended to show.the relations he held to her, and though it be said to have been improperly received it did not prejudice the defendant. (People v. Gonzalez, 35 N. Y. 49 ; People v. Brooks, supra ; § 542, Code Crim. Proc.)

(2) The complainant testified that Wednesday evening, after the four returned to the Clarendon Hotel, that someone of them spoke about going to bed; she was then asked, “ Who spoke about going to bed?” This was objected to by the defendant, and the objection overruled and the defendant excepted; she answered Nunn did; he wanted us all to sleep together again, and then that Brown said he wouldn’t. * * * I sat down in a chair because I was so dizzy and sick to my stomach, and then in a little while she told me to go to bed and shut the door, and went out; I was intoxicated then; Mr. Brown came in the room that night and occupied the room with me that night; Nunn and Mrs. Nunn stayed in number 1, on the same floor with number 6, that night.” The evidence was properly received, as it bore upon the conduct of the defendant, and tended to establish the important elements of the crime with which he was charged.

(3) Defendant testified that he registered at the Clarendon as “ F. B. Baker; ” his counsel asked him, Why did you register that way ? ” It was objected to, and the objection sustained. In his cross-examination he testified, viz.: “ At the time I registered I had concluded that I would have sexual intercourse with the girl, and wanted to stay over night; I registered under the name of Baker because I didn’t want to do anything to hurt myself or the reputation of the girl; I didn’t want everybody to know I was there, and on account of my wife; I thought of my wife a good many times; it first occurred to me that I wanted to put Baker down on account of my wife when I signed my name; I didn’t want to do anything to hurt anybody’s reputation.” It would seem that he was allowed to and did sufficiently elaborate upon the reason why he registered “ that way,” and the exception ought not to avail the appellant.

(4) The acts and declarations of defendant, testified to by Eva Fox in her cross-examination, tended to show defendant’s'intimacy with and relations to the complainant, and to some extent bore upon the witness herself unfavorably, and were not improper oil cross-examination.

Some other rulings are referred to in the argument of the learned counsel for the appellant. We have looked at them and are of the opinion that they do not present prejudicial error, and that under the rule laid down in section 542 of the Code of Criminal Procedure we ought not to disturb the verdict by reason thereof. (People v. Burns, 33 Hun, 296.)

In the course of the charge delivered by the trial judge he referred to section 282 of the Penal Code, repeating its language to . the jury, and also informing them that the indictment charged the defendant with having enticed Lilly Long to visit Syracuse and the Clarendon Hotel for the purpose of sexual intercourse, she then being an unmarried female of previous chaste character.” He then repeated the issues for the jury to consider, and he defined a portion of the statute by saying: “To inveigle, entice, persuade, induce — they all have a meaning of about a similar character, all those words have. And you readily apprehend what the language of the statute means, when it states that a person who inveigles or entices another, an unmarried female of previous chaste character. Now, chastity,. in law, has a plain, simple meaning. It relates to the question whether a woman has improper sexual relations with a man or not. In the case of an unmarried woman it relates to the question whether she has had sexual intercourse with any man or not.” He then further commented upon the evidence, informing the jury that it was for them to say whether the girl was corroborated, and in that connection he called their attention to section 283 of the Penal Code, and while commenting upon that he very properly observed, as we think, as follows : “ As to that particular branch of the case the defendant himself corroborates her, that he did have sexual intercourse with her, but that is not the offense charged; it is only a fact in the case from which you may draw such conclusions as may logically follow as to the purpose of her being taken to that hotel. Now, as to whether there is any supporting evidence or not upon the question of her being enticed or inveigled to come here; ” then he somewhat m extenso refers to other evidence tending to corroborate the testimony of the complainant, and left the question to the jury to determine whether she was corroborated or supported by other evidence. In that respect his charge was in accordance with the rule laid down in People v. Everhardt (supra). We think no error was committed in refusing to charge the jury that they must find that there was a conspiracy between the defendant and Nunn and his wife, “ by which the girl Long was to be inveigled into the hotel or some other place for the purpose of sexual intercourse or prostitution.” The court understood the request to be that he was requested to charge: If Brown is not shown to have enticed her, then, in order to convict, they must show a conspiracy.” It is to be borne in mind he had already charged the jury that if Brown liad inveigled or enticed the girl for the purposes of prostitution or sexual intercourse, that the offense was made out as to Mm We think the position taken by the trial judge was sufficiently favorable to the defendant and that the judge properly refused to charge : That the jury would not have the right to find from the evidence that the defendant personally and alone induced the girl or enticed and inveigled the girl Long into the hotel for the purpose of prostitution or sexual intercourse.” It was for the jury to determine the questions of fact involved in the request. We think the defendant failed to obtain an exception to any refusal to charge or to any part of the charge as delivered which requires us to interfere with the verdict. The great trouble with the plaintiff’s case is that the jury believed the complainant, and such evidence as was brought tending to support her version of the matters referred to and involved in the charges contained in the iudictment, and failed to believe the testimony of the defendant, and of such witnesses as he called tending to support his theory of the case.

The conviction, order and judgment of the Court of Sessions of Onondaga county must be affirmed, and the clerk directed to enter judgment and certify a copy of tbe entry to tbe clerk of Onondaga county, pursuant to section 549, etc., of tbe Code of Criminal Procedure.

Merwin and Parker, JJ., concurred.

So ordered.


text:
    John H. Ehrehart, Respondent, v. Palmer M. Wood, Appellant.

      Shidence as to a settlement and compromise of a claim for merchandise sold; as to a breach of the contract and the dcmages occasioned thereby, and as to the time of an indorsement on a bill rendered, considered and the verdict of the jury sustained.

    Appeal by tbe defendant, Palmer M. Wood, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Oneida on tbe 28th day of January, 1892, after a trial at tbe Oneida Circuit before tbe court and a jury, also from an order denying tbe defendant’s motion for a new trial, entered in said clerk’s office on tbe 1st day of February, 1'892.
    Exbibit 18, referred to in tbe opinion, was a “bill for January, 1888,” for coal, in favor of Palmer M. Wood, tbe defendant, and against tbe Herkimer Paper Company.

      Steele c& Prescott, for tbe appellant.

      S. M. Linclsley, for tbe respondent.
   Parker, J.:

Tbis action is brought to recover a balance due for coal sold and delivered by tbe plaintiff to tbe defendant. Tbe answer sets up two defenses: First. That the parties had settled and agreed upon tbe balance, and that tbe same bad been paid before tbe commencement of tbis action. Second. That tbe plaintiff bad broken tbe contract under which tbe coal was purchased, and tbe defendant bad suffered damages thereby to an amount exceeding the plaintiff’s claim.

These questions of fact were submitted to the jury, and it found a verdict for tbe plaintiff for tbe full amount claimed by him. From tbe judgment entered upon such verdict tbis appeal is brought.

After a careful examination of tbe evidence we are not disposed to disturb tills verdict. Tbe questions were very fully and fairly submitted to the jury, and there is not such a preponderance of evidence in favor of the defendant as warrants us in setting the verdict aside on that account. (Baird v. Mayor, etc., of City of N. Y., 96 N. Y. 567 ; Roosa v. Smith, 17 Hun, 138 ; Fleming v. Smith, 44 Barb. 554; King v. N. Y., L. E. & W. R. R. Co., 50 N. Y. St. Repr. 103 ; Beckwith v. N. Y. C. R. R. Co., 64 Barb. 300, 308.)

Nor do we find any error in the reception or rejection of evidence that warrants the granting of a new trial. The ruling most urgently complained of is the exclusion of the evidence offered by the witness Churchill as to whether the entry he ir ade on Exhibit 13 w^as made at or before he settled with the defendant. The argument is that if it appeared by his evidence that such entry was on the exhibit when the plaintiff and defendant had their interview, it would discredit the plaintiff’s version of that transaction. So it would, if it had appeared that the witness’ settlement with defendant was before the date of the interview between plaintiff and defendant. But it nowhere appears that the witness and Wood had settled before the time when the plaintiff and Wood had such interview, and, therefore, the evidence offered appeared to be utterly immaterial. It was not equivalent to an offer to show that the indorsement was on the bill at the time of the interview between the plaintiff and the defend-, ant. Hence, there was no error in rejecting it.

None of the other rulings complained of appear to be erroneous. We conclude, therefore, that the judgment and order appealed from should be affirmed, with costs.

MeewiN, J., concurred; HaediN, P. J"., not voting.

Judgment and order affirmed, with costs.


author: O’Brien, P. J.:

text:
    William B. Roe, Respondent, v. Alexander Hume and Another, Appellants.

      General assignment — an individual indebtedness, not a firm obligation — a judgment and execution against the assignor “as survivor” is not defective — necessity of notice to the assignor by another judgment crédito)' seelting the benefit of the decree adjudging the assignment to be void.

    Upon the trial of an action brought by a judgment creditor to set aside an assignment for the benefit of creditors, executed by his judgment debtor, individually, and as survivor of the firm of which he was a member, testimony was given, and it appeared by the verified schedules made by the assignor and assignee, that the assignor was indebted for money loaned to him individually, and which, for the most part, was secured by mortgages upon his individual property. The assignor testified that the amount of such indebtedness was applied to the benefit of, and used by the firm of which he was a member. It was also shown that the entire amount of such indebtedness was not loaned to the firm or upon its credit.

      Held, that a refusal by the court to find that such indebtedness was a firm obligation, was correct.
    It appeared that an execution was issued on a judgment recovered against the assignor “as survivor,” which execution directed the sheriff to satisfy the judgment out of the property of the judgment debtor.

      Held, that neither the judgment nor the execution was defective by reason of the former not having been entered, and the latter not having been issued, against the assignor individually and as survivor.
    The judgment in the action adjudging the assignment to be fraudulent and void, provided that any judgment creditor of the defendant might come in and have tlie benefit of the decree upon application to the court, previous notice of such application being first given to the plaintiffs attorneys.

      Held, that it should have also provided that notice be given to the judgment debtor as well as to the judgment creditor.
    Appeal by tlie defendants, Alexander W. Hume and Asa A. Spear, as assignee for tlie benefit of creditors of Alexander W. Hume individually and as surviving member of tbe .firm of A. W. & T. Hume, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of the clerk of tbe city and county of New York on the 3d day of March, 1893, upon a decision of the court rendered at the New York Special Term, adjudging the assignment made and executed by Alexander W. Hume individually and as surviving partner of the firm of A. ~W. & T. Hume to Asa A. Spear, to be fraudulent and void, and appointing a receiver of the assets of such late firm.

      Pa/yson Merrill, for appellant Spear.

      James L. Bishop, for appellant Hume.

      Alexander Thain, for the respondent.
   O’Brien, P. J.:

The general assignment for the benefit of creditors was made by Hume to Spear, and this action was brought to set it aside upon two grounds: (1) Fraud appearing on the face of the assignment itself; and (2) fraud appealing outside of the assignment as matter of fact.

The assignment recited that it was made by Hume individually and as surviving partner in the late firm of A. ~W. & T. Hume. It first provided for the payment of certain preferred partnership debts, and thereafter directed, by the fourth paragraph, payment pro rata of the individual debts of A. W. Hume out of the firm property, without first providing for the payment of firm debts in full. This has been held in the leading case of Wilson v. Rolertson (21 N. Y. 587), which has been approved and followed in many subsequent cases, to be fatal to the validity of an assignment. (COrook v. Rindskopf, 105 N. Y. 476 ; Booss v. Marion, 129 id. 541; Haynes v. Brooks, 116 id. 487.)

It is insisted, however, by the apj>ellants that, even if the language of the assignment permitted an illegal appropriation of the firm property to the payment of individual debts, the impossibility of an advantage from the supposed fraud, appearing from the facts in this case, repels the idea of any fraudulent intent. Thus it is urged that there are no individual debts which are not also firm obligation's, and that, therefore, no prejudice can arise to the partnership creditors.

In Booss v. Marion (supra) it is said: In case of such an assignment it has been held (Hurlbert v. Dean, 2 Keyes, 97), if it be shown and found as a fact that there are no individual debts thus provided for, the presumption of fraud may be repelled and the assignment upheld. * * * And in Crook v. Rindskopf (supra), the assignment having provided first for the full payment of firm creditors, such creditors, it was said, were not aggrieved, for the intention could not have been to defraud them by providing for the. payment of individual creditors thereafter, even though the individual partners owned unequal amounts of individual property, which might be affected by a provision to pay the debts with the surplus pro rata. It never has been held that, in a case where partnership assets have been by the assignment devoted in certain contingencies to the payment of individual debts, while a portion of the partnership debts remained unpaid, the stamp of fraud which the law places upon such a transaction can be rebutted by any evidence that the parties did not intend to commit a fraud.”

In this case there is a finding that there are individual debts amounting to about $25,000, and this finding is sustained not only by the testimony, but by the verified schedules made by the defendants. Rut the appellants insist that these were in addition obligations of the firm, and that, therefore, no injury resulted. We think, however, that the refusal to find that these were also firm obligations was justified. It is true that it was testified to by the defendant Hume that this indebtedness of $25,000 for money loaned to him individually, and which for the most part was secured by mortgages upon his individual property, was applied to the benefit of and used by the firm. This, however, did trot necessarily make it a firm obligation, because it might well have been that this was a contribution by the individual member of the firm to the firm’s capital, or a payment of an indebtedness of the individual to the firm. But whether it was or not, it is clear that all of this money was not loaned by the creditors to the firm, or upon the credit of the firm, but was loaned to Hume individually; and in view of the verified statement that these were individual debts secured by mortgages on individual property, we think the judge below was right in his refusal to find that they were firm obligations.

The appellants are not, therefore, in a position to avail themselves of the plea that there was no possibility of the firm creditors being injured by this provision in the assignment.

Our conclusion upon this branch of the case renders it unnecessary to pass upon the question whether or not the failure to properly state the Eeeter indebtedness and the security therefor, or the additional indebtedness of $5,000 omitted from the schedule and which would appear to be a debt of the son which was assumed by the defendant Hume, rendered the assignment fraudulent as matter of fact.

Appellants’ further contention that the plaintiff cannot maintain this action for the reason that no execution has been issued as required by law, and, therefore, that the creditor has not exhausted his remedy, is not, we think, tenable. It is true the execution recites a judgment recovered against A. W. Hume, “ as survivor,” and directs the sheriff to satisfy the same out of the property of the judgment debtor. The use of the phrase as survivor ” in no way limited the remedy of the judgment creditor against the partnership property and the individual property of Alexander W. Hume. A judgment entered against him as survivor, and an execution issued thereon became a lien immediately upon his individual property, and that which, by reason of the death of his partner, became his by virtue of his survivorship. That this is so becomes evident when we consider the obligation resting upon the surviving partner, and his right to the assets of the firm. Upon such death, not only did the survivor continue his personal liability for the debts of the firm, but he became the owner of the property belonging to the firm, and primarily liable for its debts.

"W e do not think, therefore, that the judgment or execution was defective, in the former not having been entered or in the latter not having been issued against Ilurne individually and as survivor; but we think that the form in which the judgment was entered and the execution issued théreon made it a lien upon his individual property, and that which by virtue of his survivorship he obtained.

There is one provision, however, in the judgment which should be modified. It provides : “ That any other judgment creditor of the defendant * * * may come in and have the benefit of this decree upon application to the court, previous notice of such application being first given to the plaintiff’s attorney.” It should have provided that a notice should be given to Alexander W. Hume as well as the plaintiff.

The judgment appealed from should be modified accordingly, and, as so modified, affirmed, with costs.

Follett and Parker, JJ., concurred.

Judgment modified as directed in opinion, and, as modified, affirmed, with costs.


text:
    Dora Wheeler, Appellant, v. The Oceanic Steam Navigation Company, Respondent.

      Action for lost merchandise baggage — condition on an ocea/n passenger ticket — failwre to read the contract — acquiescence in the terms of the contract — property covered by the contract.

    On the trial of an action brought to recover the value of a case of portraits, delivered at Liverpool to the defendant for transportation to Hew York, and not accounted for by it, it appeared that about a week prior to August 26, 1886, a stateroom was engaged by plaintiff’s mother for her party, which included the plaintiff, on the defendant’s steamship, which was to sail from Liverpool to Hew York on August 26, 1886. On August 24, 1886, the plaintiff arrived at Liverpool and inquired at the company’s office as to whether it had received her three trunks and the box of portraits, to which she received a negative answer. On August 25,1886, the plaintiffs mother, with the plaintiff, proceeded to the office of the company, and, on making a similar inquiry for the packages, were informed that they had been received and had been placed upon the steamer.
    The plaintiffs mother testified that she informed the agent on that occasion of the contents of the box, and thereupon she paid the passage money and received a ticket which embodied a contract, by the terms of which it was-sought to limit the liability of the company for goods, including baggage, to an amount not exceeding ten pounds sterling. The contract ticket, in large display type, stated that it was a “ cabin passenger contract ticket,” and. a person looking at it could not fail to observe that it contained conditions and stip. illations relating to the journey of the holder across the ocean. It was conceded that plaintiff’s mother, if not the plaintiff herself, had been accustomed to cross the ocean, and, in respect to the particular voyage, had arranged for and secured their passage at least a week ahead, and that the contract ticket was received by them a day before the vessel sailed.

      Held, under the circumstances, that the receipt of the ticket, with the terms and conditions printed thereon, constituted a contract between the parties ;
    That the failure of the plaintiff or her mother to read it was immaterial;
    That the fact that the property was on board the ship, and it would have been impracticable to return it to the plaintiff before sailing, was no excuse for the plaintiff’s silence or acquiescence if she had fault to find with the terms of the contract.
    It further appeared that the portraits were contained in a box, which, from its appearance, unmistakably indicated something other than, and different from, the ordinary baggage of a traveler. There was no attempt to deceive the defendant as to its true character, or to make it appear to be personal baggage, or to shield it from the proper freight charges. It was not, however, entered upon the bill of lading with notice of its character and value or in any manner whatever, but was put in the hold of the vessel for transportation to New York. It was provided by the contract ticket that the company would carry passengers’ luggage, for which a bill of lading was not signed, subject to the express stipulation that the company was not to be liable for the loss of any article or property, of the descriptions mentioned in the schedule, contained in any parcel or package, when the value of such article or property exceeded the sum of ten pounds sterling, unless at the time of the delivery thereof to the company the value thereof should have been declared by the person sending or delivering the same. The schedule enumerated, among other things, pictures.

      Held, that the portraits contained in the box were included within the contract printed upon the ticket.
    Appeal by tbe plaintiff, Dora Wheeler, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York,' after a trial at the New York Circuit, on the 18th day of October, 1892, upon a verdict rendered by direction of the court in favor of the plaintiff for the sum of sixty-six dollars.

      Boudinot Keith, for the appellant.

      Everett P. Wheeler, for the respondent.
   O’Brien, P. J.:

This action was brought to recover the full value of a case of portraits executed in pastel by plaintiff, and by her delivered at Liverpool to the defendant for transportation to New York, and not accounted for by it.

• About a week prior to August 26, 1886, the plaintiff’s mother engaged a stateroom for the party, which included, besides the persons mentioned, another young lady, on the defendant’s steamship Germcurmio, ivhich was to sail from Liverpool for New York on the date named. Having previously caused to be shipped by freight from London her three trunks and the box of portraits, the plaintiff herself arrived at Liverpool on August twenty-fourth, and inquired at the company’s offices as to whether it had received the articles, describing them, to which she received a negative answer. On the next day, being the one prior to the sailing of the vessel, the plaintiff’s mother having arrived, she and the plaintiff together proceeded to the offices of the company and, upon making a similar inquiry for the packages, were informed that they had been received and that the company had placed them upon the steamer. On this occasion the mother testifies that she informed the agent of the contents of the box; and thereupon she paid the passage money and received a ticket, which embodied a contract, by the terms of which, it was held in the court below, the plaintiff was bound. By the terms of such ticket it was sought to limit the liability of the company for goods, including baggage, to an amount not exceeding ten pounds sterling.

The two questions which we regard as crucial in determining the rights of the parties are: (1) Did the receipt of the ticket with the terms and conditions printed thereon constitute a contract between the parties ? and (2) Were the portraits contained in the box included within such contract?

In Zimmer v. N. Y. C. & H. R. R. R. Co. (137 N. Y. 460), it was said (page 463): “ Cases where parties, proposing to have articles of property transported by a common carrier, deliberately enter into some necessary contract relating to the transportation, differ materially from those cases of travelers who commit their trunks or articles of baggage to'an agent of some express or transíer*company and receive at the moment some paper which, as it has been said, amounts simply to a voucher enabling them to follow and identify their property. The difference is very obvious in the circumstances which, in the one case, usually admit of no negotiation or discussion, while in the other the shipment of the property is a matter of arrangement, with full opportunity for deliberate action.”

That and cases therein referred to are authority for the view that une wbo receives a ticket with a contract written thereon would, under the former circumstances, be held to have entered into and assented to the terms of the contract, though lie failed or neglected to read the same; while under the latter, where opportunity for negotiation or discussion was not present, one who received a ticket or receipt for baggage which contained a contract would not be bound by the terms thereof, unless the same was brought home to the person sought to be bound. The question now presented is : Under which of these two classes is the present case to be assigned ? While a person undertaking a voyage across the ocean may not in every instance proceed with the same deliberation as one who desires to ship goods, it is still true that he proceeds with respect to making arrangements for such a journey with much more deliberation than usually attends the committing of himself or property to a common carrier upon the beginning or ending of a journey by land.

As said in Steers v. Liverpool, etc., S. S. Co. (57 N. Y. 5): “ Looking to the course of business, the court may take notice that an engagement for a voyage across the ocean is a matter of more deliberation and attention than buying a railroad ticket or taking an express company’s receipt for baggage or for freight. There is, therefore,' no room in such a case for the suggestion that the party is surprised into a contract, when he supposes himself only to be taking a token indicative of his right.”

Although the circumstance as to whether 'the transaction is one merely of affreightment, or the purchase of a ticket upon a railroad, or the delivery of one’s baggage to an express company, or the procuring of passage across the ocean, has a bearing and will shed light upon the question of whether a contract was or was not entered into, it will in each case have to be determined upon the. surrounding facts and circumstances. -Instances could be cited where the usual presumption that might arise in favor of or against the making of a contract limiting the liability of a common carrier would be entirely rebutted or destroyed by the other attending circumstances. So here the question is, whether by reason of the acceptance and use of the passage ticket the plaintiff is to be held to have assented to its terms.

The statement contained in the case of Fonseca v. (Cunard S. S. Co. (153 Mass. 555), we think is equally good law in this State. As therein said: “ It has often been decided that one who accepts a contract and proceeds to avail himself of its provisions is bound by the stipulations and conditions expressed in it, whether he reads them or not. This rule is as applicable to contracts for the carriage of persons or property as to contracts of any other kind.”

Here, as in that case, the precise question is : “ Whether the contract ticket was of such a kind that the passenger taking it should have understood that it was a contract containing stipulations which would determine the rights of the parties in reference to his carriage. If so, he would be expected to read it, and if lie failed to do so, he is bound by its stipulations. It covered with print and writing the greater part of two large quarto pages, and bore the signature of the defendant company, affixed by its agent, with a blank space for the signature of the passenger. The fact that it was not signed by the plaintiff is immaterial. It contained elaborate provisions in regard to the rights of the passenger on the voyage, -x- * -x- ]^r0 one w]10 could read could glance at it without seeing that it undertook expressly to prescribe the particulars which should govern the conduct of the parties until the passenger reached the port of destination. In that particular it was entirely unlike the pasteboard tickets which are commonly sold to passengers on railroads. In reference to this question the same rules of law apply to a contract to carry a passenger as to a contract for the transportation of goods. There is no reason why a consignor who is bound by the provisions of a bill of lading, which he accepts without reading, should not be equally bound by the terms of a contract in similar form to receive and transport him as a passenger.”

It is conceded that the plaintiff’s mother, if not the plaintiff herself, had been accustomed to cross the ocean, and in respect to this special voyage tiiat they had arranged for and secured their passage at least a week ahead, and that the contract ticket was received by them a day before the vessel sailed. This contract ticket is quite a large and formidable looking paper, and in large display type states that it is “CABIN PASSENGER’S CONTRACT TICKET.” So that one receiving and looking at it could not fail to observe that it contained conditions and stipulations relating to her journey across the ocean. The failure of the plaintiff or her mother, who acted in conjunction with her, in not reading it, where, as here, the opportunity was present, would seemingly be immaterial. A reasonable time was afforded prior to the sailing of the vessel, and if any fault was to be found with the passenger contract the plaintiff or hex-mother should have made it known before leaving Liverpool.

It is suggested that it would then have been of no avail to protest, as the property was on board the ship and it would have been impracticable to return it to the plaintiff before sailing. This fact,, howevex-, we do not think is an excuse for the plaintiff’s silence or acquiescence, if she had fault to find with the tenns of the contract In other words, had she demux-red or objected, the obligatioxi would have beexx xxpoxi defendant to x-eturxx her property, or, failing to return it, not to have had the benefit of the tenns of the contx-act ticket. The failure then to object, under the circumstances as they are xnade to appear ixx this case, xnust, we think, be held to be an assent by plaintiff to the terms and coxxditions of the contract ticket.

This being so, the rexnainiixg questioxx is, whether it limited the liability of the defendant with respect to the portraits which were coxxtained in the box and which were lost.

Upoxx this trial, as upon the former, it was xnade to appear that, in addition to the ordinary baggage contained in trunks, plaintiff delivered for transportation, as stated, a package of valuable portraits. In the words of Judge Finch upon the fox-mer appeal in this case (125 N. Y. 155): These were coxxtaixxed in a box of white wood with iron hinges axxd corner clasps, and closed by a lock. The package itself, besides the address, was marked Studio,’ and its appearance uxxmistakably iixdicated something other than and diffex-ent from tlxe ordinary baggage of a traveler. There was no attempt to deceive the defendaxxt as to its true character, or by artifice or misx-epresentation to make it appear to be personal baggage, ox-shield it as such froxxx px-oper freight clxax-ges. Nevertheless it was not entered upon the bill of lading with notice of its character and value, or in any manner whatever, but was put ixx the hold of the vessel for tx-axxsportation to New York.”

By the coxitract ticket it was provided; “ That the Coxnpany carries Passengers’ Luggage and Goods for which a Bill of Ladiixg is not signed, subject to the express stipulatioxx: That it'is not to be liable for the loss of, or injury to, any Article or Articles, or Property, of tlie descriptions mentioned in the Schedule hereto, contained in any Parcel or Package, when the value of such Article or Articles, or Property, shall exceed the sum of £10, unless at the time of the delivery thereof to the Company the value thereof shall have been declared by the person or persons sending or delivering the same. * * * ”

It will thus be seen by the terms of the contract that the limited liability of the company is not confined simply to baggage, but is sought to be extended to any article or articles, or property, of the descriptions mentioned in the schedule” — which schedule enumerates, among other things, “ Pictures.”

The appellant’s contention is, that this language would only refer to articles mentioned in the schedule which were packed with baggage, and the knowledge of which was kept from the company, and would not include portraits or pictures packed in a case, as here, and which it is claimed must necessarily have been received as freight, and for which, as such, defendant would be liable.

We do not think this position is tenable. This property was. delivered at the same time as the trunks, and is by a particular deserijfiion referred to in the contract ticket; and where, as here, no bill of lading was taken out or asked for, and the value thereof was not stated, but the company was left to infer from the manner in which -it was received that it was to be carried in the same way as any other property which a passenger might seek to bring with Mm, we think it would be extending the liability of the defendant beyond the terms of the express contract entered into between the parties to assume that it was a separate and independent contract under which the defendant unconditionally received the package as freight, and for which, as such, it would be liable. In other words, whether the property was what might, strictly speaking, be called baggage, or freight, and whether received as one or the other by the defendant,, cannot be a controlling circumstance in a case where there is a contract which by its terms covered such property.

In Stoneman v. Erie Ry. Co. (52 N. Y. 433), Judge Peckham: writing the opinion, says : I think it is safe to say that if the carrier knew or had notice of the character of the goods taken as baggage, and still undertook to transport them, he is liable for their loss, although they are not traveler’s baggage.”

"We think it to be equally a sound proposition that it was entirely competent for the defendant to carry the package containing' the portraits, though from the way in which they were boxed it had knowledge that such package was not, strictly speaking, baggage, and to contract with the person owning such property as to the terms, conditions or limitations under which it would transport the ■same.

"We think the evidence shows that there was no intention of separating this property from the baggage, or, on the part of the plaintiff, of placing any other or different responsibility upon the defendant from that assumed by it in carrying the trunks. But, on the contrary, the evidence is susceptible of but one conclusion, viz., that the trunks and the package containing the portraits, as well as their own transportation or passage, were intended by the parties to be, and were, the subject of a single contract.

It will thus be seen that we have reached the conclusions, with respect to both questions, that there was a contract entered into between the parties, which, by its terms, extended to and included the portraits, and under which the liability of the defendant was limited. And upon such conclusion it follows that the case was correctly disposed of by the judge at Circuit, and that the judgment should be affirmed, with costs to the respondent.

Follett and Barker, JJ., concurred.

Judgment affirmed, with costs to the respondent.


text:
    Henry Neil, Respondent, v. Fords, Howard & Hulbert, Appellant.

      Libel — privileged publication — the question of fact is for the jury — express malice must be shown — findings of fact necessary for review upon appeal.

    In an action to recover damages for tlie publication of an alleged libel, where the facts upon which the defendant bases his claim of privilege are challenged by the plaintiff, the jury should determine the existence or non-existence of the facts which are asserted as the basis of the privilege.
    A publication to be privileged must be made in good faith with a belief in its truth.
    In such an action, where the publication is privileged, the plaintiff must show express malice in order to recover.

      Upon the trial of an action the court decided that the question at issue was one for the jury, and an exception was taken hy the defendant. The record showed that thereafter, by the consent of counsel, the question was considered as if it had been before the court at Special Term.

      Held, that, by reason of such consent, the original determination to submit the-matter to the jury became inoperative.
    Findings of fact are necessary in order to review, upon appeal, the determination of the court at Special Term.
    Appeal by the defendant, Fords, Howard & Hnlbert, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 15th day of March, 1892, and entered in the office of the cleric of the city and county of New York upon the verdict of a jury for $500 rendered at the New York Circuit, and also from an order entered in said clerk’s office the 2d day of May, 1892, denying the. defendant’s motion for a new trial made upon the minutes.

      Thorndyhe Scmnders, for the appellant.

      William B. Ellison, for the respondent.
   Parker, J.:

The judgment under review awards to the plaintiff .damages, against defendant corporation for libel.

The exception mainly relied on by the defendant to secure a reversal of the judgment was taken to the refusal of the court to direct a verdict in favor of defendant, the contention being that the alleged libelous matter published by the defendant was privileged.

In 1874 the defendant published a book entitled “Pictures in Palestine — Christ in Art or Gospel Life of Jesus, with the Bida Illustrations.”

On the title page appeared the following : “ Illustrated with one hundred full-page plates, on steel and wood, executed by ‘ Brend Amour,’ of Dusseldorf.”

In 1888 the defendant published another book containing illustrations from “ Bida ” designs bearing the following title: “ Pictures in Palestine — The Story of Jesus — A Book for the Home, by Louisa T. Craigin.”

In each book it was stated on the title page that it was illustrated with one hundred fullrpage plates from the designs of “ Alexander Bida.”

In 1890 the plaintiff published an illustrated edition of the “ Life of Christ by Canon Farrar ” under the following title : “ The Story of Jesus — The Sweet Story of the Life of Christ, by Canon Farrar, D. D., F. R. S.” It contained sixty-two illustrations, seven of which were of the “ Bida ” designs.

The plaintiff testified that “ he took seven ‘ Bida5 designs from the book entitled ‘ Christ in Art,’ ” and that this was done after reading on the title page that they had been re-engraved by “ Brend Amour,” and after being informed that as it was the work of a foreign artist they were not the subject of copyright in this country and, therefore, could be used by anyone.

Knowledge of the plaintiff’s publication coming to the defendant, it issued the circular of which complaint is made in this action. It is as follows: “ Caution : A legal opinion concerning The Story of Jesus, illustrated with a large number of magnificent full-page engravings by Alexander Bida, the converted Jew, and other world-renowned artists.”

“ We are the inventors and owners of the series of copyrighted wood engravings of the celebrated Bida designs, illustrating scenes in the life of Christ, published and copyrighted in the book entitled ‘ Christ in Art; ’ also of ‘ The Story of Jesus,’ by Mrs. Louisa T. Craigin.

“ We have recently learned that an individual named Henry Neil, giving himself the corporate style of ‘ The Commonwealth Publishing Company,’ as if he were an association of capitalists, is about to bring out, under the above title, Canon Farrar’s ‘ Life of Christ,’ which was published sixteen years ago in England and can be bought anywhere in cheap American reprints.

“ In order to make it attractive to agents and the public, this old book is to be ‘ freshened up ’ with a new and false title, taken baldly from our copyrighted volume, ‘ The Story of Jesus,’ by Mrs. Louisa T. Craigin. Mr. Neil’s large yellow poster circular says of it, ‘The whole world is wild with enthusiasm over the Long Looked for Story of Jesus, by Canon Farrar.’ This falsely-named book is to be illustrated with cheap casts of old cuts, together with poor reproductions from some of our copyrighted engravings of the Bida designs. Some portions of the title page of this ‘religious teacher’ are appropriated from other books that have had a large sale, the apparent design being to convey false impressions concerning the identity of the book. With these we have nothing to do, but, in reference to our rights, we desire to call the attention of all interested in printing, making, publishing or vending this cheap imitation of a well-known art book, to the following extracts from a decisive opinion.

“ Notice :

“ The original designs or etchings may be copied or redrawn or engraved by anybody, but our engravings of them, invented and directed by American citizens, although mechanically executed by foreigners (just as most of the engravings in The Century and other magazines are to-day), cannot be copied or used without our permission, except under risk of being tied up by injunction, and upon damage of our business, of legal penalty.

“ The title, text and illustrations of ‘ The Story of Jesus,’ are duly protected by copyright, and all rights reserved.

“ Beware of the sixteen-year-old book of Canon Farrar put forth under a new and false title, ‘The Story of Jesus,’ said title being appropriated from another book which it is sought to imitate.

“ Beware of coarse pen-drawings, cheap process cuts and all imitation of our copyrighted wood engravings of the Bida designs, published without our permission on the copyright page.

“ Beware of them, because they are fraudulent religion and poor art; and beware of them, because making or selling them will subject you to risk of legal interference and penalty.

“FORDS, HOWARD & TII7LBERT,

“ 30 Lafayette Place, New York.”

These circulars were sent chiefly to subscription book publishers, subscription book agents, and printers.

The defendant, conceding that the matter contained in the circular was prima facie- libelous, insisted, nevertheless, that its publication was privileged, and, therefore, not actionable, in the absence of proof of express malice.

Tt is asserted that because it was engaged in the sale of books, which it believed plaintiff’s publication would necessarily and wrongfully injure, it had such an interest as to entitle it in good faith to warn dealers against an attempted invasion of its rights.

Upon tlie trial, as now, the appellant invoked the general rule, that whether a publication is privileged, and, therefore, prfo/ia facie excusable, is a question of law for the court.

An exception to the general rule arises where the facts upon which the defendant bases its claim of privilege is challenged by the plaintiff; then a jury must determine the existence or non-existence of the facts which are asserted as the basis of the privilege.

To constitute a privileged communication, it is not sufficient that the publisher has an interest in the matter, or a duty in respect to it, which renders it proper to state the facts to one who may have a legitimate interest in hearing it, but he must make the statement in good faith, believing it to be true.

In this case the plaintiff insists that there is evidence to support a finding that some of the important statements in defendant’s circular were not only untrue, but that defendant knew them to be untrue at the time of the publication, and, therefore, the court was not permitted to hold, as matter of law, that the communication was privileged.

Among the statements thus challenged, are the following:

(1) That the defendant is the inventor of the wood engravings of the “ Bida ” designs, and that such engravings were copyrighted.

The allegation that defendant was the inventor of the wood engravings, it is contended, was contradicted by the statement on the title page of the hook, entitled Olirist in Art,” which states that they were executed by Brend Amour.”

That the statement that the engravings are copyrighted, is put in issue by the testimony of the president of the defendant, who testified that he knew that engravings made by any person not a citizen of the United States, or a resident therein, were not. a subject of copyright.

(2) That the defendant incorrectly stated the title of plaintiff’s book, and that the jury was authorized in finding that it was known to be untrue, from the fact that the defendant had in its possession the advance sheets, or sample pages, together with a large advertising poster issued by the plaintiff.

(3) That the evidence permitting a finding that the statement that plaintiff’s hook was falsely named was untrue, and so known to be at the time, is found on the title page of the hook then in defendant’s possession.

Plaintiff points out five otlier instances in which he claims the circular contains material and untruthful statements, and in respect to which the evidence adduced would support a finding that defendant then knew to be untrue.

It will serve no useful purpose to discuss each specification.

The consideration which we have given to them leads to the conclusion that the facts upon which the claim of privilege was founded are so far disputed as to deny to the court the right to hold, as matter of law, that the communication was privileged.

The denial of defendant’s motion to direct a verdict was, therefore, required.

The result would have been the same if the court had attempted to hold that the communication was privileged. In such a case, the plaintiff must show express malice in order to recover.

The evidence to which we have alluded, tending to show the untruthful statements in the circular, and knowledge of their untruthfulness on the part of the defendant, considered with certain testimony by the president of defendant, touching the motive which induced the publication of the circular, would have presented a question for the jury, whether plaintiff had not shown express malice.

The president testified: The circular was published and circulated for the purpose of preventing the plaintiff here from effecting sales of his book. * * * It was not with the idea of casting some little slur upon him that we worded it that way, but it was upon the publisher of the book which he announced. We knew at that time that he was the publisher of the book, but it was as a publisher, not as a person. * * * The circular did contain this statement: This falsely-named book is to be illustrated with cheap casts of old cuts, together with poor reproductions from some of our copyrighted engravings of- the Bida designs.’ That statement was made with the purpose of running down the book, so the people would not purchase it.” * * *

The other point represented by appellant is that the court erred in permitting the jury to consider defendant’s counterclaim for infringement of its trade mark.

The court decided that the question was one for the jury, and defendant excepted.

This position seems to hare been receded from by the court, with the consent of counsel.

It appears from the record that, “ by the consent of connsei, this question was considered as if it had been before the court at Special Term.” Thus the exception to the original determination to submit the matter to the jury became inoperative.

The court then proceeded to dispose of the question adversely to defendant’s contention, without making any findings of fact.

In order to review the determination of the court at Special Term, findings of fact were necessary.

Were it not so, and the question properly reviewable here, the determination of the trial court that the defendant had failed to establish the trade-mark right, in the use of the title “ The Story of Jesus,” would he approved.

The judgment should he affirmed, with costs.

Van Brunt, P. J., and Eollett, J., concurred.

Judgment affirmed, with costs.


author: Follett, J.:

text:
    Frederick J. Lancaster, Plaintiff, v. The Amsterdam Improvement Company, Defendant.

      liight of citizens of the State of New York to organize a foreign corporation — the holding and granting of lands in New York by such corpoi'ation — its right to convey an indefeasible title thereto — its shai’eholders have no legal estate in the lands.

    Citizens of the State of New York may select a State or country, having laws providing for the organization of corporations best suited to their purposes, and organize a corporation under its laws, without intending to transact any business in such State or country, and without, in fact, ever having been there.
    ¡The question as to who may acquire lands, for what purposes, in what quantities and the tenure by which they may be held, must be decided by the local law of the State in which the lands are situated, and not by the rules of comity existing between States, and the fact that a foreign corporation is authorized, by the laws of the State under which it was incorporated, to take lands by devise, does not give it the right to take lands by devise in the State of New York.
    A foreign corporation may not engage in the business of purchasing and selling lands in the State of New York for the purpose of speculation, and convey an indefeasible title to lands thus acquired, and a grantee of such corporation takes a title, defeasible at the will of this State, and the shareholders of the corporation have no legal estate iu the lands.

      Submission of a controversy on an agreed statement of facts under section 1279 of the Code of Civil Procedure.
    The following are the material facts stated in the submission: On the 19th day of May, 1891, five persons, four of whom were residents of New York, and one of whom was a resident of New Jersey, organized a corporation by filing a certificate dated that day, in the State of New Jersey, by which the defendant was incorporated under a statute of that State, entitled “An act concerning corporations,” approved July 7, 1875. The second article of the certificate of incorporation is as follows: “ Second. That the' places in this State where the business of such company is to be conducted are Jersey City and the city of'Hoboken, in the county of Hudson. The principal part of the business of said company within this State is to be transacted at Jersey City, in the county of Hudson, and the places out of this State' where the same is to be conducted, and where the company proposes to carry on operations, are the cities of New York and Brooklyn, in the State of New York, and that the objects for which said company is formed are the purchase and sale of real property, both improved and unimproved, the improvement of such property as may be purchased, and which, when purchased, is unimproved, the exchange of property for other property, the lending of moneys upon first and second mortgages secured by bonds, and the purchase and sale, by assignment or otherwise, of such mortgages'and bonds. The portion of the business of said company which is to be carried on out of this State, in the said cities of New York and Brooklyn, will be such as will come under the head of the objects for which this company is formed. The principal office or place of business of said company out of this .State, is the city of New York, in the county and State of New York.”
    December 21, 1892, the Secretary of State of the State of New York, issued a certificate, of which the following is a copy :
    “ STATE OF, NEW YORK, \

    “ Office of the Secretary of State, >•
    “ Albany. )
    “ It is hereby certified that the Amsterdam Improvement Company, which appears from the papers filed in this office on the twenty-first day of December, 1892, to be a foreign stock corporation, organized and existing under tlie laws of the State of New Jersey, lias complied with all the requirements of law to authorize it to do business in this State, and that the business of such corporation to be carried on in this State is such as may be lawfully carried on by a corporation incorporated under the laws of this State for such or similar business.
    “ Witness my hand and the seal of office of the Secretary of State, at the City of Albany, this 21st day of December, 1892.
    [L.8.J “FRANK RICE,
    “ Secretary of State.”

    It is provided by section 121 of the New Jersey statute above referred to, that “ it shall be lawful for three or more persons to associate themselves into a company to carry on any kind of manufacturing, mining, chemical, trading or agricultural business, agricultural fairs and exhibitions, for the encouragement of competition in agriculture, horticulture, breed of stock and development of speed in horses; the transportation of goods, merchandise or passengers upon land or water; inland navigation; the building of houses, vessels, wharves or docks, or other mechanical business; the reclamation and improvement of submerged lands; the improvement mid sale of lands,” etc.
    This statute also provides that corporations shall have the power “to hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter, and all other real estate which shall have been bona fide mortgaged to the said company by way of security, or conveyed to them in satisfaction of debts previously contracted in the course of dealings, or purchased at sales upon judgment or decree which shall be obtained for such debts.”
    By another section of this act it is provided: “ Any company organized as aforesaid may carry on a part of its business out of this State, and have one or more offices and places of business out of this State, and may hold, purchase and convey real and personal property out of this State the same as if such real and personal property were situated in the State of New Jersey.”
    May 23, 1891, Arthur P. Smith was the owner of a lot of vacant and unimproved land in the city of New York, which, by a deed dated that day and duly recorded May 25,1891, lie assumed to convey to the defendant. On the 15tli day of January, 1893, the plaintiff and the defendant entered into a written contract whereby they agreed to exchange said lot of land for another lot of land owned by the plaintiff. The land of the plaintiff was valued at $12,000, and the land of the defendant at $49,500, and the difference, $18,500, the defendant agreed to pay to the plaintiff at the times and in the manner specified in the contract. It was agreed that the deeds should be exchanged at a place named on or before February 15, 1893. Pursuant to said contract the defendant executed a deed in due form, by which it is assumed to convey the premises to the plaintiff, and in addition procured a deed to be executed by all of the stockholders and directors of the defendant, in which deed said Arthur P. Smith, the grantor of the defendant, joined, by which the grantors therein assumed to convey all of their interest in said premises to the plaintiff.
    It is conceded that the defendant has done no business in the State of New Jersey, and that the only business or transactions in which it has been engaged since its organization have been carried on in the city and county of New York.
    It appears by the certificate of incorporation that all of the shareholders are residents of the State of New York, except Frederick Frambach, who resides in Jersey City, New Jersey, and subscribed for one share.

      Thomas 8. JBassforcl, for the appellant.

      Zouis Marshall, for the defendant.
   Follett, J.:

The circumstances under which this corporation was organized are peculiar, and until quite recently the question whether it has a legal existence would have been an open one. It is admitted that all of the corporators were residents of this State save one, who resided in New Jersey, and held a single share of stock. Undoubtedly he was made a stockholder to avoid the question at one time discussed, whether corporations organized under the laws of New Jersey must not have at least one resident stockholder and director. (13 N. J. L. J. 347; 26 Am. L. Rev. 885.)

It is also agreed that the defendant has done no business in the State of New Jersey, and that the only business which it has undertaken has been carried on in the State of New York. It is apparent that this corporation was in fact organized by citizens of this State under the laws of New Jersey, not for the purpose of transacting business in that State, but to evade the laws of this State and organize a corporation under less stringent acts for the sole purpose of engaging in business in this State. Demarest v. Flack (128 N. Y. 205) must be regarded as conclusive authority for the position that citizens of this State may select a State or country having laws providing for the organization of corporations best suited to their purposes, and organize a corporation under those laws without intending to transact any business in that State, and without, in fact, ever having been there, and then engage in business in this State. This question has been much discussed. (Kruse v. Dusenbury, 1 City Ct. Rep. Supp. 87; S. C., 19 N. Y. Wkly. Dig. 201; 25 Am. L. Rev. 352; 26 id. 194, 342, 412; 27 id. 252; Cook S. & S. 238; Mor. Coiq). § 955), but it is no longer an open one in this State.

The primary question in this case which is open for discussion is, whether a foreign corporation may engage in the business of purchasing and selling lands in this State and convey an indefeasible title to lands acquired for the purposes of speculation. Every State has the right to prescribe what persons and corporations may or may not hold or convey lands within its borders, to what extent, and for what purpose they may be held and conveyed. Who may acquire lands, for what purposes, in what quantities and the tenure by which they may be held is not regulated by the rules of comity existing between States, but by the local law of the State in which the lands are situated. (United States v. Fox, 94 U. S. 315 ; Christian Union v. Yount, 101 id. 352.) In the case last cited it was held, “ for, besides the admitted incapacity of a corporation of one State to exercise its powers in another State except with the assent or permission, expressed or implied, of the latter, it is a principle as inviolable as it is fundamental and conservative, that the right to hold land, and the mode of acquiring title to land, must depend altogether on the local law of the territorial sovereign.” This is in harmony with the decisions of the Court of Appeals in this State. (People v. Fire Association of Philadelphia, 92 N. Y. 324.)

In tlie case last cited it w'as said: “ Tlie constitutional difference between tlie rights of non-resident individuals and foreign corporations is fundamental and apparent.- The citizen of another State has a constitutional right to come within our jurisdiction. The charter of the nation has secured him that right, and we cannot exclude him nor clog his right with conditions, unless in exceptional cases under the police power. But foreign corporations, artificial beings, the product of a law not our own, have no constitutional right to pass their own borders and come into ours. The Federal Constitution has neither granted nor secured any such right. Ve may exclude absolutely, and in that power is involved the right to admit upon such conditions as Ave please. Until .they are within our jurisdiction the final clause of article 14, by its own terms, does not apply.”

This brings us to the question whether a foreign corporation may, under our general laws, purchase and hold lands Avithin this State which are not necessary for its business, and which have not been acquired in securing the payment of any debt due to it. The first general statute passed in this State in respect to the right of foreign corporations to acquire and convey lands, to which our attention has been called, or Avhicli avo have been able to find, is chapter 158, LaAvs of 1877, Avhicli proAnded: “Section 1. It shall be lawful for any corporation, duly organized under the hrws of any State in which such corporation shall be located, to purchase under any foreclosure sale based upon any mortgage or mortgages owned by such corporation, or upon judgments or decrees obtained or rendered for debts due to it, or in any settlement effected to secure such debts, any of the lands lying within this State that may be covered by or subject to such mortgages, judgments, decrees or settlements, and also, to hold for a term not exceeding five years from the date of such purchase, and to convey such lands by deed or otherAvise, in the same manner as though such corporation had been organized under the laws of and located within this State.”

The provisions of this act are re-enacted in section 18 of chapter 687 of the Laws of 1892, known as “the General Corporation Law.” Section 1 of chapter 150 of the Laws of 1887, which is substantially re-enacted in section 17 of “the General Corporation Law,” provided: “Any foreign corporation created under the laAvs of the United States, or of any State or Territory thereof, and doing business in this State, may acquire such real property in this State as may be necessary for its corporate purposes in the transaction of its business in this State, and convey the same by deed or otherwise in the same manner as a domestic corporation.”

The foregoing are the only general statutes of this State authorizing foreign corporations to acquire, hold and convey land within this State, or which recognize their right so to do. It is urged that the statute last quoted is broad enough to authorize a foreign corporation to take, hold and convey real estate within this State as a business and for the purposes of speculation. This we do not think was the intent or purpose of the act, but are of the opinion that the law-making power simply intended to authorize a foreign corporation to take, hold and convey such land within this State as should be incidentally necessary or convenient for the transaction of such business as the corporation is authorized to carry on within this State. The statute first cited (now section 18 of the General Corporation Act) limits the time to five years in Avliich foreign corporations may retain lands which they have acquired in the payment of debts due it. This seems to negative the idea that a foreign corporation has the unlimited right to take, hold and, for an indefinite period, convey any lands within this State except such as are necessary for and incidental to its business.

The numerous special acts of the Legislature of this State found in our Session Laws, authorizing certain foreign corporations to acquire lands, by purchase or devise, show, Ave think, that it is contrary to the policy of this State to permit such corporations to take, hold and convey lands in this State without being specially authorized so to do.

The fact that a foreign corporation is authorized by the laws of the State under which it vras incorporated to take lands by devise, does not give it the right to take lands by devise in this State. (White v. Howard, 46 N. Y. 144; United States v. Fox, 94 U. S. 315, affg. Matter of Will of Fox, 52 N. Y. 530; 63 Barb. 157.)

The policy of this State, from the time of its organization to the present, has been firmly opposed to the right of corporations, created under its OAvn Lavs, to take, hold and convey an unlimited amount of land, the amount that may be acquired, held and conveyed being limited by general laws, or by tlie acts under which the corporations were created. Under chapter 40 of the Laws of 1848, as amended, corporations may be formed for purchasing, holding, improving and conveying real estate, but the amount which they may hold is limited to $1,000,000, unless the corporation is organized for the purpose of erecting in a city a building to be rented for offices and stores. (Chap. 508, Laws 1890.)

If the defendant may legally acquire, hold and' convey land in this State at pleasure there is no limitation upon the amount which foreign corporations may acquire and convey, except their ability to purchase and pay for lands. We think it is contrary to the policy of this State to give to foreign corporations the unlimited right to take and hold lands in this State, and that the title of the defendant is not indefeasible, but it is subject to be forfeited by the State. Until it is the defendant holds a defeasible title. If the defendant conveys its grantee takes the same title, a defeasible one, at the will of the State. (Runyan v. Coster, 14 Pet. 122; National Bank of St. Louis v. Matthews, 98 U. S. 621; Wright v. Sadler, 20 N. Y. 324.) The title, subject to the right of the State to defeat it, being in the corporation, it. is plain that its shareholders have no legal estate in the lands, and the judgments recovered against William EL Crawford are not a lien upon it.

Both questions submitted must be answered in the negative and judgment directed accordingly, with costs in favor of the plaintiff and against the defendant.

Van Brunt, P. J., and Parker, J., concurred.

Judgment ordered as directed in opinion, with costs in favor of the plaintiff and against the defendant.


author: Parker, J".:

text:
    Lucius J. Phelps and Another, Respondents, v. The Gamewell Fire Alarm Telegraph Company, Appellant.

      Specific instances of mismanagement of a machine — not obviated by proof of general skillfulness — prior negotiations merged in a'written contract.

    On the trial oí an action brought to recover the contract price of a machine furnished by the plaintiffs to the defendant, where payment is resisted on the ground of the failure of the machine to comply with the contract, evidence on the part of the plaintiffs of specific instances of mismanagement of the machine by the employee of the defendant in charge of its operation, cannot be met by .showing in a general way that the defendant’s employees were skillful men.

      A. written proposal for furnishing a gas machine of a specified capacity, for a specified price, stated that the vendors would set up the machine complete, in perfect working order, “ and guarantee the same for two years.” This proposal wits accepted by the vendee in writing, and the vendors brought an action to recover the price of the machine, upon the contract of sale embodied in the written proposal and acceptance.

      Held, that the word “guarantee,” in the proposal, necessarily related to that which the vendors promised in their writing, and that there was no ambiguity in its use which called for the admission, to explain it, of evidence of the prior oral negotiations which had become merged in the written contract.
    Appeal by the defendant, the Gamewell Eire Alarm Telegraph Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the city and county of New York on the 13th day of March, 1893, upon a verdict rendered at the New York Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover the balance of the purchase price of a certain gas machine called the “ Domestic,” sold by the plaintiffs to the defendant under a contract in writing embodied in a letter of proposal written by the plaintiffs and a letter of acceptance written by the defendant.

      Oha/rles A. Judson, for the appellant.

      O. B. Gould, for the respondents.
   Parker, J".:

The contract which lies at the foundation of this controversy is in writing and comprised in the two letters following:

“New York, Jarmary 20, 1890.

“ J. W. Stover, Esq.,

President Gamewell Fire Alarm Telegraph Co.,

“ Boston, Mass.:

“Dear Sir — We hereby agree to furnish you a Domestic Gas Machine capable of supporting 100 lights of sixteen candle power each, with reservoirs of 120 gallon capacity. Pressure tank 60 gallon capacity, supply tank of 10 gallon capacity, 150 quarts of glycerine, 100 burners.

“ Set up the same and connect it with the gas pipes of your factory near Boston, Mass., furnishing 50 feet of main, all complete and in perfect working order (excejit excavating and gasoline) and guarantee the same for two years for the sum of $633.00, and travelling expenses of expert.

“ Payments to be made as follows:

“ $200 Thirty days from starting of the machine.

“ 200 Sixty “ “

“ 233 Ninety “ “ .

“ Respectfully submitted,

PHELPS & DINGLE.

“ N. Y. City, February 10, 1890.

“ Domestic Gas Lighting Oo.,

“N. Y. City:

“ Gentlemen — Please furnish for our new factory at Upper Newton Falls, Mass., the 100 light plant covered by your proposal, guarantees &c., &c.,

“ Yours very truly,

“ J. W. STOYER,

“Presidents

The recovery had was for the unpaid balance of the contract, price with interest.

Defendant alleged in its pleading and attempted to prove failure of performance on the part of the plaintiff, and sought to recover, by way of counterclaim, so much of the purchase price as it had already paid.

Whether plaintiffs had fully performed their part of the contract was fully and fairly presented to the jury by the learned trial court, and their finding was necessarily to the effect that it had been.

It is true that for some reason the gas machine did not accomplisli for the defendant what it had hoped and expected from it, but the jury likely reached the conclusion that this was due, not to the fault of the machine, but rather to the unskillful manner in which defendant’s employee in charge managed it.

After an examination of the testimony of the witnesses, and the correspondence between the parties, we have determined that the finding of the jury is fully supported by the evidence.

Appellant insists that because certain evidence adduced on the part of the plaintiff tended to show that the failure of the gas machine to meet the expectations of the defendant was due to the neglectful and unskillful manner in which it was operated, it was error for the court to have sustained the objection to the following question: “ What is the character of the hands that you employ, so far as their capacity is concerned ? ”

It is urged that the answer to the question, had it been allowed, would have shown that defendant’s employees were skillful, and thus have tended to contradict plaintiff’s testimony, that the machine was unskillfnlly managed.

In the first place, plaintiff’s evidence was directed to specific instances of mismanagement, which resulted in a failure of the machine to do its work. These specific allegations the defendant could have met, if untrue, by calling the person in whose charge it had placed the machine, to deny them, and at the same time demonstrate his qualification to manage it, but it could not be done by showing, in a genei'al way, that its employees were skillful men.

Doubtless they were in their particular field of labor, which the witness had already testified was that of manufacturing fire and police telegraph apparatus, but it does not at all follow because they were skillful in that direction that they understood how to manage a gas machine, and there is nothing in the record to suggest that the question was asked with any such purpose in view.

Exception was also taken to the refusal of the court to permit the same witness to tell what the negotiations in regard to the machine were prior to the two letters, which constitute the contract between the parties. Defendant now contends that there is some ambiguity about the contract, particularly with reference to the use of the word “ guarantee,” which requires parol proof to make plain, and he cites in support of his position White's Bank, v. Myles (73 N. Y. 337).

In the first place, it may be said that, if there was an ambiguity, defendant’s exception would not entitle it to a reversal. There was. nothing in defendant’s question, or in the suggestion made hy its. counsel to the court, from which the court could understand that defendant claimed an ambiguity.

Defendant’s president testified that he was the member of the corporation with whom the negotiations in regard to the machine were had ; then followed the question : “ Q. Will you tell us what they were ? ” ■

Objection was thereupon made, that the contract liad been reduced to writing, resulting in a merger of the prior oral negotiations.” And in sustaining the objection, the court but followed a well-recognized rule of evidence. Had the defendant any other object in view than that naturally suggested to the court by its. question, it should have disclosed it.

But we do not discover an ambiguity which seems to call for parol testimony to make clear the meaning- of the parties.

Plaintiffs’ proposal was in terms definite. They proposed to furnish a Domestic Gas Machine.” As to its capacity, it was provided that it should be capable of supporting 400 lights, of sixteen candle power each, with reservoirs of 720 gallon capacity. Pressure tank 60 gallon capacity, supply tank 70 gallon capacity, 150 quarts of glycerine, 400 burners.”

Thus was described the kind of machine, its ]iower and capacity. The proposal further provided that the plaintiffs should set up the machine and make the connections, “ all complete and in perfect working order, and guarantee the same for two years.”

As used, the word “ guarantee ” necessarily related to that which the plaintiffs promised in their writing.

The connection in which it is employed does not even suggest the necessity of going outside of the writing in order to understand fully what the parties intended to guarantee.

The cases cited by appellant, therefore, have no application.

The judgment should be affirmed, with costs.-

O’Brien and Follett, JJ., concurred.

Judgment affirmed, with costs.