author: YaN BbuNt, P. J.:

text:
    WILLIAM J. POLLOCK, Appellant, v. RICHARD M. HOOLEY, Impleaded with Another, Respondent.

      Deed by the grantee of a power — 1 B. 8., 737, see. 134— testmnentary power of sale — not frustrated by a deed purpm'ting to be under an unauthorized sale — will proved in another State — power of sale to an executor in his personal capacity.

      Semble, that the statute (1 R. S., 737, § 134), providing that “every instrument executed by the grantee of a power conveying an estate or creating a charge, which such grantee would have no right to convey or create, unless by virtue of his power shall be deemed a valid execution of the power, although such power be not recited or referred to therein,” relates only to cases where the grantee executes the instrument, but nowhere refers to the source from which he claims to derive the authority so to do.
    "Wnei.e a person expressly states in an instrument that he proposes to execute a certain power which he believes to have been given him, and has no intention of executing another power which he does not believe he possesses, the statute will not hold the instrument executed to be an exercise of a power which the maker of the instrument did not believe he possessed, and had no intention of exercising, as is shown by the instrument itself.
    The mere fact that an executor lias applied to a court for authority to sell realty under a trust created by will, and that an order was granted under which the executor made a deed reciting that it was given in pursuance of the authority conferred by the court, as he then erroneously believed, will not affect the power of the executor (it being subsequently learned that the proceeding in court was ineffective and the order a nullity), to contract for the sale of the property, or to convey the same, if a power of sale has been conferred upon him by the will.
    A will devised certain realty to the executors in trust, to rent the same during the joint lives of two beneficiaries of the rents and the life of the survivor, and at his death to convey the property to the issue of the first beneficiaries per stirpes, and at the end of the will, following the residuary clause, there was a general power of sale to the executors.
    There was in the will no direction to divide and no share to be taken out, and nothing which could indicate that the power of sale was to apply to the residuary estate and not to the other real estate of which the testator died seized, except the fact that the clause conferring the power of sale was nearer the residuary clause than to the said trust clause.

      Meld, that it was the intention of the testator that the power of sale should apply to all his real estate, to be exercised in-case any unforeseen contingency might arise, and that under such power the surviving executor of the will could convey and give a good title to the trust property.
    By force of section 2703 of the Code of Civil Procedure, and in view of the absence of any provision for the issuing of letters testamentary under a will proved in another State affecting real property in this State, semble, that it is the intention of the legislature that the existence of a power of sale, given by such a will, over real property in this State, is to be evidenced by the record of the will here; and that whether the donee of the power has qualified himself to exercise it is to be determined by what had been done at the place of the probate of the will.
    Even if this is not so, where a power of sale, in a will proved in another State, is conferred upon an executor not viriute officii, but as a personal trust and in a capacity distinctly different from his duty as executor, his right to convey under the power of sale depends upon the will itself and not upon the issuing of letters testamentary in this State; and in such case the power may be executed, in respect to real property in this State by the donee of the power, who has not taken out letters here.
    Appeal by the plaintiff, 'William J. Pollock, from a judgment of the Supreme Court, entered, on the report of a referee, in the office of tbe clerk of tbe county of New York on tbe 21st day of July, 1892.
    • Matthew Hale and Ma/reus T. Him, for tbe appellant.

      H B. Beékman, for tbe respondent.
   YaN BbuNt, P. J.:

This action was brought for tbe enforcement of a contract between tbe plaintiff and Richard M. Eooley, one of tbe defendants, by which the parties agreed to exchange certain property in tbe city of New York; tbe defendant, having refused to accept tbe deed tendered by tbe plaintiff upon tbe ground that tbe title of tbe execu-tant of tbe deed of tbe premises was not a marketable title because of the want of power of one Jacob R. Shotwell, as surviving executor of one Lucy H. Eddy, deceased, to convey tbe title to said premises,, which was vested in said Eddy at tbe time of her decease. The’ action was referred, and tbe facts appearing upon the trial seem to’ be as follows: Tbe said Lucy H. Eddy, a resident of Rahway, in tbe State of New Jersey, died seized and possessed of the premises-, in question in March, 1879, leaving a last will and testament, and codicil thereto, which were duly admitted to probate in tbe Probate-Court at Trenton, New Jersey, and letters testamentary were issued to said Shotwell, who, at tbe time of tbe conveyance hereinafter mentioned, was the sole surviving executor named in said will.. Subsequently, a copy thereof, duly authenticated as required by law,., was recorded in tbe office of tbe surrogate of tbe county of New York, but no letters testamentary were ever issued to said Shotwell by said Surrogate’s Court.

By said will, the said Lucy H. Eddy directed all her debts, etc.,, to be paid by her executors as soon as possible after her decease. She then' gave and devised to her executors, tbe survivors and survivor of them, her store and lot of ground known as No. 70 South street (tbe premises in question), in trust during tbe lives of L. A. Pollock, wife of W. J. Pollock, and Eddie Shipley, that they should rent tbe same, and after paying taxes and other charges thereon, to-apply the net rents to the use of said L. A. Pollock and Eddie Shipley during their joint lives, and on the death of either of them, leaving-the other surviving, and without leaving issue, the whole of said net rents to be applied to sucli survivor for life, but if leaving issue surviving, then lialf of the net rents to be applied to such issue; and upon the death of the survivor, then upon the further trust that said executors, or the survivor of them, should convey the said store and lot of land to the lawful issue of said L. A. Pollock and Eddie Shipley per stirpes, in equal shares or to the lawful issue of such one of them as shall have died leaving lawful issue surviving ; but if they should leave no lawful issue them surviving then in trust to convey the same to the trustees of the Rahway Library Association. The testatrix then bequeathed various sums of money to various persons and corporations, and also provided that if for any reason any of the devises or bequests should lapse or fail to vest, then every such devise and bequest should revert to and form part of her residuary estate. The testatrix then devised certain interests in certain other property to Louisa Pollock, and disposed of all the rest and residue of her property, both real and personal, whatsoever and wheresoever, to certain persons named in the residuary clause. And by the last clause she appointed four persons, and the survivors and survivor of them, executors of her last will and testament with full power to sell and convey all her real estate in such manner and upon such terms as they might think proper. The testatrix subsequently executed a codicil to this will which does not bear upon the questions involved in this action.

Said Shotwell having executed a written contract with reference to the purchase of the premises in question with one Haynes, in June, 1887, presented to the Supreme Court of the State of New York, at a Special Term thereof, his verified petition asking for an order authorizing him to make sale of the property No. 70 South street, and to hold the proceeds thereof under the trusts mentioned in said will, and such proceedings were thereupon liad that an order was made by the court granting the prayer of the petition. In January, 1888, the said Shotwell, as sole surviving executor and trustee under the last will and testament of Lucy II. Eddy, deceased, attempted to convey the premises in question by virtue of the authority conferred upon him by the order of the Supreme Court to said Haynes, and received the consideration named in said deed, namely, $32,500. It having been ascertained that the proceedings taken by the surviving executor were ineffective to confer the power upon him to make the sale attempted to be made to Haynes, said executor, claiming to act under the power of sale conferred by said will, executed a further deed in confirmation and support of the title which he had thus attempted to convey. The learned referee holding that no authority to convey was conferred by the proceedings of the Supreme Court, and that, as far as the premises in question are concerned, no power of sale was contained in the will, and, if there was such a power therein contained, there was no valid exercise of such power, dismissed the plaintiffs complaint and from the judgment thereupon entered this appeal is taken.

It is conceded, upon the argument of this appeal, that the proceedings in the Supreme Court, under the authority of which the executor claimed to have executed the first deed, were a mere nullity. But it is claimed that the deed, given in January, 1888, which recited that it was given in pursuance of the authority conferred by the Supreme Court, was a valid execution of the power of sale, the claim being based upon the statute (1 R. S., 737, § -124), which reads as follows:

“ Every instrument executed by the grantee of a power conveying an estate, or creating a charge, which such grantee would have no right to convey or create, unless by virtue of his power, shall be deemed a valid execution of the power, although such power be not recited or referred to therein.”

This claim we do not think to be well founded, but that the statute refers only to those cases where the grantee executes the instrument, but nowhere refers to the source from which he claims to derive the authority so to do. In a case where a person, in an instrument, expressly states that he proposes to execute a certain power which he believes to have been given him, and has no intention of executing another power which he does not believe he possesses, it does not seem to us that the statute will hold the instrument executed to be an exercise of a power which the maker of the instrument did not believe he possessed, and had no intention of exercising, as is shown by the instrument itself.

But the question as to the subsequent deed executed by the executor, wherein he purported to exercise the power of sale conferred upon him by the will, stands upon a different basis, and seems to us to be a valid exercise of such power, if such power was conferred The executor bad received the consideration money for the premises. He was under obligation to convey by his written contract, and hence could have been compelled by the person to whom he had attempted to convey to fulfill his contract and execute the power of sale and convey the premises, even though he had not attempted to do so by reason of the proceedings taken in the Supreme Court.

The mere fact that such proceedings had been taken, and it had been erroneously believed that the power to convey had been thereby conferred, in no manner affected the power of the surviving executor to contract for the sale of the property, or to convey the same if a power of sale had been conferred upon him by the will. The learned referee came to the conclusion that there was no title conveyed by this attempted exercise of the power of sale, because no such power was conferred upon the executor by the will; the power of sale therein referred to being only given to him for the purposes of conversion, and with a view to the distribution of the proceeds of the sale of the realty amongst the several residuary legatees; and that the premises in question being specifically devised in trust, and there being no necessity for exercising the power of sale upon this property for the purposes of distribution, no right to the exercise of the power existed, citing, as authorities, Morse v. Morse (85 N. Y., 59) and Fisher v. Banta (66 id., 468). An examination of those cases will show that they differ very materially from the case at bar. In the case of Fisher v. Banta, by a codicil to the will, the testator directed his executors to sell all his real estate; and it was held in an action for the construction of the will that there being no purpose for the sale expressed in the codicil, the fair inference was that it was for the purposes of division, the executors being directed to divide his real estate equally between the sons of the testator.

In the Morse case it was held that the power of sale in the will in question was conferred for the purposes of conversion, although not so expressly declared, and this arises from the fact that the executors were required to pay over one-sixth of his residuary estate to a trustee which they could only do by making a division.

But in the will in the case at bar there is no direction to divide, no share to be taken out and nothing which can possibly indicate that the power of sale was to apply to the residuary estate and not to the other real estate of which the testatrix died seized, except tbe single fact that in the drawing of the instrument the clause conferring the power of sale is more nearly situated to the residuary-clause than to the clause creating the trust which has been spoken of. By the second clause of the will the real estate composing the trust is devised to the executors upon the trusts therein named. By the seventh clause all the rest and residue of the testatrix’s estate is devised and bequeathed to certain individuals named, with a provision at the end of the clause that if either-of the legatees should not be living at the time of the decease of the testatrix the share they would have had, if living, should descend to and vest in their children per stirpes. And then, in a separate clause, the executors are appointed and the power of sale conferred. There is no intimation, as already stated, of any idea of division by the executors. The devise of the residuary estate is as direct to the residuary legatees as it possibly could be. And at the very end of the will is given a general power of sale.

Now, it was undoubtedly the intention of the testatrix that that power of sale should apply to all her real estate, to be exercised in case any unforeseen contingency might arise. She evidently intended that the residuary devisees should take her real estate under the will, because she talks about the share of a deceased residuary devisee descending to his children. And to hold that the power of sale only applies to the residuary estate seems to be restricting it in a manner which the testatrix has not only not provided for, but, probably, did not contemplate.

It may be urged that in the clause creating the trust there is a provision that upon the termination of the trust the trustees shall convey the property devised in trust to the ultimate beneficiaries. But in respect to the property devised to the residuary legatees there is no provision whatever for the title vesting in the executors for any purpose whatever, but a mere naked power is conferred upon them. In the one case they take the title to the property. In the other they are mere donees of a power. And one would think, if a power of sale was intended to apply to one class of property rather than the other, it would be to that property the title of which was vested in them rather than to property the title to which it was the apparent intention of the testatrix to confer directly upon the bene: ficiaries by will.

But it is further urged, upon the part of the respondent, that Shotwell had no right to act as executor in the exercise of the power ■of sale conferred by the will over real estate situated in this State. It might be sufficient, in answer to this suggestion, to call attention to the fact that, altliongh there is a provision for the issuing of ancillary letters testamentary in this State in the cases of wills of personal property which have been admitted to probate in other -countries, no such provision is made in respect to wills of real property situated within this State. Section 2703 of the Code, provides that “ where real property situated within this State, or an interest therein, is devised or made subject to a power of disposition by a will duly executed in conformity with the laws of this State of a person who was, at the time of his death, a resident elsewhere within the United States, and such will has been admitted to probate within the State or Territory where the decedent so resided, .and is filed or recorded in the proper, office, as prescribed by the laws of that State or Territory, a copy of such will, or of the record thereof, and of the proofs, or of the record thereof, * * * authenticated as prescribed in this article * * * may be recorded in the office of the surrogate of any county of this State where such real property is situated, and such record in the office of such surrogate, or an exemplified copy thereof, shall be presumptive evidence of such will, and of the execution thereof in any action or special proceeding relating to such real property.” There is no provision for the issuing of letters testamentary upon such a will; it evidently being the intention of the legislature that the existence •of the power should be evidenced by the record here, and whether the donee of the power had qualified himself to exercise it, was to be determined by what had been done at the place of the probate •of the will. But, even if this were not so, we think, that the surviving executor had the power to execute this power of sale. It would seem that this power was not conferred upon the executors named in the will virtuie officii, but that it was a personal trust, and such power was given them in a capacity distinctly different from their duty as executors, and, therefore, their right to .convey under the power of sale depended upon the will itself, and not upon the issuing of letters testamentary in the State of New York. This principle is recognized in tire case of Mott v. Ackerman (92 N. Y., 539). It was there held that where the power granted, or the duty involved implied a personal confidence reposed in the individual over and beyond what is ordinarily implied by the selection of an executor, the power and duty are not those of an executor virtute officii, and do not pass to an administrator with the will annexed.

In the case at bar, the power of sale was conferred upon these individuals as individuals, and not as executors, and a discretion was reposed in them which could be exercised by nobody else. It, therefore, would seem that, by the conveyances executed by the surviving exeputor, a complete title was vested in the grantee of those deeds.

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

Lawrenoe and O’Brien, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.


source: Caselaw Access Project

author: O’BeibN, J.:

license: Public Domain

text:
    JOHN E. PHILLIPS, as Receiver of THE NATIONAL BANK OF SUMTER, South Carolina, Appellant, v. THE MERCANTILE NATIONAL BANK OF THE CITY OF NEW YORK, Respondent.

      Liability of a bank on its draft or check — fictitious payee — effect of using a name similar to that of a known person.

    The principle that a hill or check made to a fictitious payee by the drawer knowingly and put in circulation, indorsed accordingly, is the same as though made payable to the bearer, applies when the name inserted and indorsed as payee is similar to that of a known person, but is used by the drawer with no intention that such person should become a party to the paper in any way.
    Hence, if a bank official, authorized to draw bills and checks for his bank, draws a check upon another bank with which his bank has an account, and, to avert suspicion, and with no intention of delivering the check to the payee, inserts as. payee a name similar to that of a customer of the bank, and indorses the check in that name to a third party, to whom he delivers it, and it is then indorsed by such indorsee and thereupon paid by the bank on which it is drawn out of funds of the drawer bank in its hands, and there is nothing in the transaction to put the drawee upon inquiry, the drawer bank is properly chargeable with the amount thus paid and cannot compel repayment from the drawee bank.

      Appeal by the plaintiff, John E. Phillips, as receiver, etc., from a judgment, entered in the office of the clerk of the city and county of New York on the 27th day of May, 1892, upon a dismissal of the complaint at the New York Circuit. ■
    The action is brought by the receiver of the National Bank of Sumter, South Carolina, to recover with interest $20,326.77, an alleged balance due on its deposit account with the defendant, and also to recover $212.78 alleged to have been paid by the receiver to the defendant as dividends by mistake of fact. The answer alleges the payment of the amount claimed upon thirteen checks duly drawn by the National Bank of Sumpter, théir dates ranging between January 25, 1886, and January 31, 1887, and as a second defense a stated and settled account between the Sumter Bank and the defendant, after the payment of all such checks and their return to the Sumter Bank, and that on such account there was due to the defendant $265.98, which the defendant filed in proof with the receiver; the plaintiff as receiver allowed the same, and paid to the defendant on account thereof the amounts alleged as dividends in the complaint.
    The subject-matter of the controversy is twelve of the thirteen checks mentioned in the answer; one of the checks, namely, that of December 10, 1886, for $5,125.25 having been withdrawn from the plaintiff’s claim.
    It appears from the evidence that on Monday, August 22, 1887> the National Bank of Sumter was compelled to suspend payment on account of insolvency, its cashier, C. E. Bartlett, having absconded the Saturday night previous, and on August twenty-fourth the plaintiff was appointed receiver, and assumed charge of the bank as such about the 5th or 6th of September, 1887; that shortly thereafter the defendant made a claim against the Superior Bank for an overdraft of $265.98, and that $212.78 was paid on said claim. Four or five months after the cashier’s flight the checks referred to were discovered in the bank, drawn by Bartlett as cashier upon the defendant, seven to the order of A. S. Brown and six to the order of C. E. Stubbs, who, it appears, were residents of Sumter and customers of the defunct bank. Bartlett would enter on the stubs of these checks the date, name of the payee and the amount, sometimes the same as the check and sometimes only a tenth of the same. After these were posted into the ledger by the bookkeeper, Bartlett altered the entries in the stubs and in the ledger, in the case of the false amounts, by adding a figure, to make them correspond with the checks actually drawn. These checks were all indorsed, “ Pay to the order of Cumming & Rassell ” (or “ E. A. Bigelow & (Jo.,” or “ Latham, Alexander & Co.”), and the name of the payee “ C. E. Stubbs ’■’ or “ A. S. Brown,” which indorsements it was stipulated between the parties were made by Bartlett; both Stubbs and Brown testifying that the indorsements were not made by them, but were fair imitations of their handwriting, and were made without their knowledge or authority, and that the first either of them saw of the checks was some months after the cashier’s flight. Bartlett would then forward the checks to the indorsees, who indorsed them “ for deposit,” and deposited them in their bank, which indorsed and collected them from the defendant, and the latter in turn charged them to the Sumter Bank and returned the vouchers.
    At the close of the plaintiff’s case, upon motion of defendant’s counsel, the trial judge dismissed the complaint rendering an oral deci" sion, and from the judgment entered thereupon this appeal is taken.

      George W. Wingate, for the appellant.

      John, M. Bowers, for the respondent.
   O’BeibN, J.:

The question thus presented is, as stated by the learned trial judge, was the Sumter Bank bound by the act of its cashier in drawing the checks and indorsing them and putting them in circulation so indorsed ?

It may serve us in reaching a conclusion upon this question if we first determine what would have been the position of the Sumter Bank, assuming that the checks had been drawn directly to the order of Cumming & Bussell, or E. A. Bigelow & Co., or Latham, Alexander & Co., through whom they were presented to the defendant.

It was the duty and within the scope of the authority of the’ cashier to draw bills or checks, and though he had drawn them for his own purposes, intending to defraud his bank, no question could arise but that the payment of such checks, properly indorsed, out of the funds of the Sumter Bank in the hands of the defendant would be a good payment, unless there was something in the transaction tending to put the receiver of the checks upon inquiry.

Again, if we assume that the names of the payees subsequently indorsed on the checks were fictitious names, knowingly made by the cashier and indorsed by him, this would, in effect, be the same as though the bill or check was payable to bearer, and if, as in this case, subsequently indorsed and presented to defendant and paid out of funds of the plaintiff,’ the latter could not compel a repayment.

Whether another and different rule is to be applied has been narrowed down to, and necessarily depends upon, the circumstance that the names of the payees which were indorsed on the checks were similar to names borne by customers of the bank. The facts are susceptible, of course, of but one inference, that at the time these names were inserted by the cashier he had no idea of delivering the checks to them, nor were their names used for any purpose other than to ward off the suspicion which might otherwise arise, or the discovery which might follow an examination by other officers of the bank if checks were drawn in names that were strange to such officers. The purpose in drawing the checks was to place them in the hands of the three firms to whom, after indorsing them, the cashier sent them. In other words, the object of the drawer was to put the drafts in circulation with the names of the payees indorsed upon them; and whether such payees were purely fictitious or were similar to the names of persons whom the cashier may have known and used, instead of creating new ones, does not seem to us to change the principle that should be applicable upon the facts presented.

As said in Daniel on Negotiable Instruments ([4th ed.], § 140): “ If the bill or note be payable to some person who had no interest in it and was not intended to become a party to it, whether such person is or is not known to exist, the payee may be deemed fictitious.” And the same author continues: “ But, if it be payable to some person known at the time to exist and present to the mind of the drawer when he mado it, as the party to whose order it was to be paid, the genftine indorsement of such payee is necessary in order to a recovery thereon by an indorsee, even though he had no interest in it and the drawer knew that fact.” As stated by the learned trial judge: Bartlett, “ as cashier, was authorized to draw the bills. That was within his power. * * * When he drew the draft he acted as cashier.” And, again: The intent of the cashier was the intent of his bank; that is, so far as the New York Bank was concerned.”

That these views are correct must be apparent from a consideration of the relation of the person drawing the checks to the bank and the principle applicable thereto which must obtain that his act was the act of the bank. Having authority, therefore, to put in circulation the checks, the bank cannot escape liability, because, in putting such cheeks or bills in circulation with the names of the payees indorsed upon them, he adopted, with a view to allay the suspicion of the bank’s officer, the device of selecting names which were similar to those of persons with whom such officers were acquainted.

Much stress is placed by appellant upon the case of Shipman v. Bank of the State of New York (126 N. Y., 318). That was a case of forgeries by a trusted clerk of principals who delivered to him checks which they had intended to draw to actual payees, but, through the fraud and connivance of the clerk, were drawn to payees, some of whom were real and some fictitious. It was therein held that negotiable paper, the payee of which does not represent a real person, cannot be treated as payable to bearer, unless the paj)er was put into circulation by the maker, with knowledge that the name of the payee does not represent a real person. And, in the course of the opinion, the court says: “ The maker’s intention is the controlling consideration which determines the character of such paper. It cannot be treated as payable to bearer, unless the maker knows the payee to be fictitious and actually intends to make the paper payable to a fictitious person.”

The distinction thus presented between the two cases, we think, is clear. In the case cited the principals did not put paper in circulation, with knowledge that the name of the payee did not represent a real person; whereas, in the case at bar, the bank, through its authorized officer, put in circulation paper, with knowledge on the part of the drawer and with intent to indorse thereon the names of payees who, for all intents and purposes, were fictitious payees adopted and resorted to as a device to avei’t suspicion.

A case which has been frequently referred to, and which we think more like this in principle, is that of Horstman v. Henshaw (11 How. [U. S.], 183), which was a case where a bill of exchange had upon it the forged indorsement of the payees, but it had been put into circulation by the drawers, with such forged indorsement already upon it, and it was purchased in the market by a bona fide holder, who presented it to the drawee, who accepted and paid it at maturity, and then the drawers failed. In that case it was held that the drawee could not recover back the money which he had paid toth ebonafide holder; and the reason, among others, stated by the court in the opinion was, that “ the bill was put in circulation by the drawers with the names of the payees indorsed upon it. And by doing so they must be understood as affirming that the indorsement is in the handwriting of the payees, or written by their authority. And if the drawee had dishonored the bill, the indorser would undoubtedly have been entitled to recover from the drawer. The drawers must be equally liable to the acceptor who paid the hill. For having admitted the handwriting of the payees, and precluded themselves from disputing it, the hill was paid by the acceptor to the persons authorized to receive the money according to the drawer’s own order.” And it was further said that the “ English cases most analogous to this are those in which the names of the drawers or payees were fictitious and the indorsement written by the maker of the bill.”

So we say that the cases most analogous to the one at bar, and the principles most nearly applicable, are those involving fictitious drawees and payees. In other words, we think that the circumstance that there was a resemblance between the names of the payees used to those of persons who were known to Bartlett, where it was not intended that such persons should become parties in any way to the paper, does not vary the rule or principle which would be applicable, if, instead of using such names, he had used those which were purely fictitious.

"We are of opinion’ therefore, that the judgment appealed from should be affirmed, with costs and disbursements.

Yah BkuNT, P. J., and Follett, J., concurred.

Judgment affirmed, with costs and disbursements.


author: Follett, J.:

text:
    FREDERIC N. BLANC, Appellant, v. ELIZABETH L. BLANC, Respondent.

      Divorce — counter-claim — supplemental answer.

    The court has power, under the Code of Civil Procedure (§§ 544, 1770),. to permit the defendant, in an action of divorce for adultery, to plead as a counter-claim, as well as a defense, hy supplemental answer, acts of adultery committed by the plaintiff since the action was begun.

      Semble, that the fact that both parties to an action of divorce, in which there are counter-charges of adultery, have noticed the action for trial at a Special Term, does not deprive the court of power to permit a supplemental answer to be served.
    Appeal by tbe plaintiff, Frederic N. Blanc, from an order, made at tbe New York Special Term and entered in tbe office of tbe clerk of tbe city and county of New York on tbe 1st day of December, 1892, granting a motion of tbe defendant for leave to serve a supplemental answer.
    This action, for a divorce on tbe ground of adultery, was begun May 3, 1892, by tbe service of a summons and complaint. June twenty-seventh an amended complaint was served which was answered July 23, 1892, three defenses being interposed. (1.) A general denial. (2.) Condonation. (3.) Adulteries on tbe part of plaintiff, which were set up as a defense and as a counter-claim, affirmative relief being demanded. July twenty-ninth, issue was. joined by tbe service of a reply in which tbe allegations of adultery in tbe answer were denied. In October both parties noticed tbe cause for trial at a Special Term, and it was placed on tbe calendar. November sixteenth, tbe defendant moved for an order permitting her to plead, by a supplemental answer, as a defense and as a counterclaim, adulteries alleged to have been committed by tbe plaintiff since this action was begun, with women other than those mentioned, in tbe original answer.

      A. J. Dittenhoefer, for tbe appellant.

      William P. Burr, for tbe respondent.
   Follett, J.:

Before tbe Codes, material facts occurring after issue joined could be interposed by way of defense —- mere matter of resistance to tbe plaintiff’s cause of action — in an action at law, by a jilea, puis darien continuance (Grah. Pr., 296), or in a suit in equity by a supplemental answer, or by a cross bill. (2 Barb. Ch. Pr., 256; Story’s Eq. Pldg., § 903.)

Section 544 of tbe Code of Civil Procedure provides tbat tbe court may permit a party “ to make a supplemental complaint, answer or reply, alleging material facts wliicb occurred after bis former pleading, or of wliicb be was ignorant when it was made.” Tbe power of tbe court to permit tbo defendant to plead as a defense acts of adultery committed by tbe plaintiff since tbe action was begun cannot be doubted. Can such acts be pleaded as a counterclaim? It will be observed tbat tbe section of tbe Code above referred to, does not limit tbe use of facts interposed by a supplemental answer to tbe establishment of a defense to tbe plaintiff’s alleged cause of action.

In an action for a divorce tbe defendant may plead tbe adultery of tbe plaintiff as a defense and as a counter-claim, and if proved, the defendant being innocent, a divorce may be denied tbe former and granted tbe latter. (Code Civ. Pro., § Vj'lO.) Tbe right being given to tbe defendant to plead and prove tbe adultery of tbe plaintiff, though committed subsequent to tbe commencement of tbe action, it is difficult to see any good reason for denying tbe defendant affirmative relief. ■ Tbe defendant having been found innocent and tbe plaintiff guilty of tbe matrimonial offense, why should tbe judicially-established facts be available only as a defense, when, by granting complete relief, justice is done in one action and tbe delay, expense and scandal of a second suit avoided. Public policy, tbe interests of society and of tbe litigants alike demand tbat tbe rights of tbe parties should be determined in a single action, unless by so doing some statute or rule of procedure settled by reported cases is violated. No statute has been cited nor have we been able to find one which prohibits tbe granting of such relief. Tbe precise question involved in tbe case at bar could not have arisen in this State before tbe Code of 1848, because our Court of Chancery never assumed tbe power to grant the innocent defendant a divorce for tbe adultery of tbe plaintiff, no matter whether it was committed before or after suit brought. Such relief was only attainable by an original or by a cross-bill. In Milner v. Milner (2 Edw. Ch., 114) the application of the plaintiff for leave to file a supplemental bill alleging acts of adultery by the defendant, after the filing of the original bill, was denied. This case was followed in Morange v. Morange (2 N. Y. Mo. Bull., 30).

In Smith v. Smith (4 Paige, 432) it was held that in case a plaintiff committed adultery after suit brought for a divorce leave should be granted the defendant to set up the fact, as a defense, by a supplemental answer or by a cross-bill. This case was followed in Strong v. Strong (3 Robt. 669; S. C., 28 How. Pr., 432). When the last case was decided it was a disputed question whethei', under the old Code, affirmative relief could be granted in such an action to a defendant. (J. W. B. v. F. D. B., 11 N. T. Leg. Obs., 350; Anon., 17 Abb., 48; Leslie v. Leslie, 11 Abb. [N. S.], 311; Fullmer v. Fullmer, 6 N. Y. W. Dig., 22-42; R. F. H. v. S. H., 40 Barb., 9), and the report of the case does not show whether the fact was allowed as a counterclaim as well as a defense. In Cornwall v. Cornwall (30 Hun, 573), which was an action for a limited divorce, the plaintiff was granted leave to file a supplemental complaint alleging acts of cruelty committed after the commencement of the action, but it was intimated that the subsequent acts were proper in characterization of the earlier acts. This case is in harmony with the decisions in some of the States, which hold that acts of adultery committed after suit brought by the defendant with the person charged in the original pleading as a pa^tioejps oriminis may be pleaded and proved for the purpose of characterizing their previous relations. (Browne Div., 58; see, also, Borham v. Borham, L. R., 2 P. & D., 193.) The question now before the court was not decided in any of the cases cited nor were the questions discussed in them nearly related to the point involved in the casé at bar, but they are the only decisions found in the reports of this State which throw light on this controversy, and there being no statute ordéeision in the way, we are of the opinion that under the Code of Civil Procedure adulteries committed by a plaintiff after suit brought may be pleaded by leave of the court, both as a counter-claim and as a defense.

The Ecclesiastical Courts of England gave affirmative relief to defendants (2 Bish. M. D. & S. S., 559), and when acts of adultery were committed by either party, subsequent to the commencement of tbe action, they could be alleged by a supplemental libel or answer, and, if proved, were given the same force as though alleged in the original pleading. (Barrett v. Barrett, 1 Hag. Ec., 22; Webb v. Webb, Id., 349 ; Middleton v. Middleton, 2 Hag. Ec. Supp., 134, Brisco v. Brisco, 2 Add. Ec., 259.)

In New Hampshire, a supplemental complaint may be filed alleging acts of adultery committed after suit brought, which, if established, are a ground for a divorce. (Adam v. Adam, 20 N. H., 299.) In Kentucky grounds for a dvoorce a mensa et thora and for alimony, not existing when the original bill was filed, may be alleged in a supplemental bill, and, if proved, will support a decree. (Butler v. Butler, 4 Littell, 202; Logan v. Logan, 2 B. Mon., 142-148; McCrocklin v. McCrocklin, Id., 370.)

Without attempting to reconcile Wheelock v. Lee (74 N. Y., 495), and Mackellar v. Rogers (109 id., 468), or to distinguish them from the case at bar, we think that the fact that both parties noticed the action for trial at a Special Term did not' deprive the court of power to permit a supplemental answer to be served. All of the issues involved in the action, including those joined by the original and supplemental pleadings, must be tried before a jury unless both parties waive such a trial. Part of the issues should not be tried before the court without a jury and the remainder before the court with a jury. There is nothing in the record which would justify this court in holding contrary to the decision of the Special Term that the motion was not made in bad faith and for the purpose of delay. When the order was granted the case had been pending but six months, and it does not appear that the defendant was negligent in not moving at an earlier date.

The order should be affirmed, with ten dollars costs and printing disbursements.

YaN Bbuht, P. J., and O’BeieN, J., concurred.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    ALFRED A. LISCOMB, Appellant, v. SARAH K. AGATE, as Executrix, and Others, as Executors, etc., of FREDERICK K. AGATE, Deceased, Respondents.

      Account stated — how questioned — loaiver of an omission in a pleading to surcharge or falsify an account — evidence — booh of account.

    The rule of pleading, that a party who seeks to open an account, stated or settled, must surcharge the account or falsify it, or both, may be waived by the parties; and if the party against whom evidence is offered for the purpose of questioning the account does not object to the testimony, upon the ground that it is unauthorized by the pleading, the point is waived.
    In an action for services and money expended the defendant set up as a counterclaim a claim for moneys withheld by the plaintiff, and the reply did not plead > a settlement or account stated, and at the trial no objection was taken by the plaintiff to evidence as to the state of the accounts between the parties, upon the ground that an account had been stated or settled which could not be opened unless surcharged or falsified by proper averments in the answer:

      Held, that the question could not be raised for the first time on appeal.
    When the evidence shows that an account stated is fraudulent, the account may be inquired into though not surcharged or falsified in the pleading of the party questioning it.
    A partner in a firm testified that he had superintended work done by the firm for one Liscomb, and that McCowen, the witness’ copartner, kept the firm books:

      Held, that the question: “Did you give to McCowen a correct statement of your transactions with Mr. Liscomb, as they took place, for entry into the ledger?" was not objectionable as calling for an opinion of the witness.
    The witness having answered the above question in the affirmative, and McGowen, who kept the books, having previously testified that he made all the entries in Liscomb’s account; that he knew that the work represented by the entries had been done; that the charges were correct of his own knowledge, and that he could not state the items from memory, but could by refreshing his recollection by the book:

      Held, that the book in which Liscomb’s account was entered was properly admitted in evidence.
    Appeal by tbe plaintiff, Alfred A. Liscomb, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe city and county of New York on tbe 2ith day of October, 1891, on tbe report of a referee in favor of tbe defendants; also from tbe order confirming tbe referee’s report.
    Tkis action was begun May 11, 1888, for tbe recovery: (1.) For services as an agent in care of an apartment-house during Marcb and April, 1888, at the agreed price of $432.32. ( 2.) For $448.60, money expended in caring for an apartment-house in March and April, 1888. (3.) For $10,000 damages for the alleged wrongful discharge of plaintiff by defendants from their service on May 1, 1888, two years before the end of the term for which he had engaged.
    The defendants by their answer admitted that plaintiff’s salary for March and April, 1888, had not been paid, but denied any knowledge in respect to the expenditures claimed. They admitted that they discharged the plaintiff on the 1st of May, 1888, and alleged that it was for a sufficient cause. They also alleged, by way of counter-claim, that the plaintiff was indebted to them in the sum of $200 for rent of rooms for March and April, 1888; that he had retained, unaccounted for, large sums collected from the tenants of the apartment-house, and 4had wrongly received commissions upon the purchase of supplies for the house in a considerable sum. The referee found that the defendants were indebted to the plaintiff for the sums claimed for wages and moneys expended, which, with interest added, amounted to $1,064.95, and that the plaintiff was discharged for a sufficient cause. He also found that the plaintiff had wrongfully received fifty-one dollars and eighty cents commissions received by him from persons from whom he had purchased supplies for the house; that he was indebted in the sum of $241.76 for the rent of rooms for March and April, 1888, and that he was indebted for rents collected, and not paid over, in the sum of $1,544.78, which items aggregate $1,848.34, from which $1,064.95 was deducted, and a judgment given for the defendants for $773.39.

      Benjamin If. Cardoso, for the appellant.

      George G. Holt, for the respondents.
   Follett, J.:

But three errors are urged as grounds for a reversal of the judgment. (1.) That the referee erroneously disallowed the plaintiff $800, paid by him on account of rents collected. (2.) The referee erred in permitting the witness Law to answer a question which was objected to by thé plaintiff. (3.) The referee erred in receiving in evidence the account book of John Law & Co.

The payment of the disputed item of $800 by plaintiff’s check dated April 28, 1887, is conceded by tlie litigants, and the only question in respect to it is whether it was paid on account of rents collected in March or April, 1887, or on account of rents previously collected.

Upon this question the referee found with the defendants, and, we think, upon sufficient evidence. The learned counsel for the plaintiffs now insists that this item, having been charged by the plaintiff against rents received after April, 1887, in an account rendered by him to the defendants, that it became part of an account stated and could not be questioned, because the defendants did not, in their answer, specifically allege that it was erroneously charged against the March and April rents; An account stated is the equivalent of an account settled. (Stenton v. Jerome, 54 N. Y., 480; Trueman v. Hurst, 1 T. R., 40.) It is a rule of pleading that he who seeks to open an account, stated or settled, must surcharge or falsify, or both. That is, if some item is charged that is erroneous* it must be specifically pointed out, which is a falsification. If some item is omitted it must be averred, which is to surcharge the account. (Story’s Eq. Juris., § 525; 1 Dan. Ch. P. & P. [3d Am. ed.], 692.) But this rule of pleading may be waived by the parties, and if the litigant against whom the evidence is offered does not object to the testimony upon the ground that it is unauthorized by the pleading, the point is waived. In this case, the défendants did not claim on an account stated, but for moneys vbrongfully withheld by the plaintiff, which was set up as a counter-claim. The plaintiff, in his reply, contented himself with a general denial, and did not plead a settlement or account stated, nor was any objection taken on the trial in his behalf to the evidence, as to the state of the accounts, upon the ground that an account had been stated or settled, which could not be opened unless surcharged or falsified by proper averments in the anwer. This question cannot be raised for the first time on appeal. The point has been waived, even though it had conclusively appeared by the evidence, which it does not, that the account embracing the $800 item had become a stated one. There is a rule of pleading which is equally fatal to the plaintiff’s position. When fraud is charged in an account and is proved, it is a sufficient ground to open the whole account. (Bruen v. Hone, 2 Barb., 586; Story’s Eq. Juris., § 523; Story’s Eq. Pldg., § 801.)

The defendants averred in tlieir answer that tbe plaintiff bad fraudulently charged them witli tbe full face of bills rendered by third persons for materials and labor furnished, and had received and retained for his own use from those persons percentages of their amount. This fact was found by the referee. "When the evidence shows that an account stated is fraudulent, it may, as before stated, be inquired into though not surcharged or falsified in the pleading of the party questioning it.

The only other point to which our attention is called by the counsel for the appellant, is raised, by two exceptions taken at folios 703 and 704. John Law and John G. McCowen were partners under the firm name of John Law & Co., who were employed by the plaintiff to work on the apartment-house. The referee found that forty-two dollars and seventy-six cents were allowed by them to Lis-comb as a percentage on the accounts presented and paid for work .performed. Mr. Law testified that he generally superintended the work on that house and Mr. McCowen kept the books of the firm. The following question was asked Law by the defendant’s counsel: “ Q. Did you give to Mr. McCowen a correct statement of your transactions with Mr. Liscomb as they took place for entry into the ledger ? [Objected to as calling for an opinion of the witness. Question allowed and exception taken.] A. Yes, sir, invariably, Q. And that is so in regard to all your transactions with Mr. Liscomb ? A. Yes, sir. [Ledger account appearing on pages 75 and 213 of the ledger offered in evidence by defendant’s counsel. Objected to as incompetent. Admitted. Exception taken.] The first objection is clearly untenable. The question did not call for an opinion but for a fact. The objection to the admission of the account was properly overruled. McCowen, the other partner, had previously testified that he made all of the entries in the Liscomb account, and that he knew that the work represented by the entries had been done, and that the charges were correct of his own. knowledge. He had also testified that he could not state the items from memory, but could by refreshing his recollection by the book.

The judgment should be affirmed, with costs.

YaN BRUNT, P. J., and O’BeibN, J., concurred.

Judgment affirmed, with costs.


text:
    WILLIAM M. TEBO, Appellant, v. HENRY G. JORDAN, and Others, Respondents.

      Tug chartered to tow coal larges— liability of the owner of the tug for the negligence of his captain — evidence as to negligence on a voyage — stranding on shoals.

    The owner of a steam tug chartered it, with his officers and crew, to the owner of coal barges, at a fixed rate per month, to tow barges between Newport News and Boston, under a charter-party which provided that, in its execution, the dangers of the sea should be excepted, and the tug not be held responsible for damages from that cause.
    The tug and its tow having stranded on certain shoals while on a voyage to Boston, and remained aground for about an hour, the charterer claimed the right to terminate the contract; and the tug owner, having brought an action for the month’s hire, was resisted on the ground of damages to the barges alleged to have been caused by their stranding through the negligence of the captain of the tug.

      Seld, that, under the charter-party, the law implied a warranty by the owner that the tug was seaworthy.
    That a vessel which is not commanded by competent officers is unseaworthy.
    That the owner of the tug, while not a common carrier and liable as an insurer of the safety-of the barges, was liable for damages occasioned by the failure of the master of the vessel to exercise reasonable care and skill in its management.
    The evidence on the questions as to whether the captain of the tug was negligent in not anchoring, instead of proceeding by night, at a point where the course lay between certain shoals, on one of which the tug and barges stranded, and in not sounding between the shoals, examined and held not to sustain a ruling that the captain was negligent, as matter of law, but to present questions of fact which should have been submitted to the jury.
    Appeal by the plaintiff, William M. Tebo, from a judgment of tlie Supreme Court, in favor of tbe defendants, entered in the office of the clerk of the city and county of New York on the 10th day of May, 1892, on a verdict for the defendants directed by the court at the New York Circuit.
    The plaintiff was the owner of the steam tug B. T. Haviland, and the defendants were partners under the name of II. G. Jordan & Co., and engaged in the transportation of coal in barges from Newport News, New York and Philadelphia to Boston and other ports in the New England States. October 23, 1888, the parties to this action entered into a contract of which the following is a copy:

      “ Articles of agreement entered into this 23d day of October, 1888, between H. G. Jordan & Co., of Boston, Mass., and W. M. Tebo, of Brooklyn, L. I. Tbe said W. M. Tebo agreed to charter the .steamer B. T. Haviland to said H. G. Jordan & Co., from the morning of October 26, 1888, to May 1, 1889 (either party having the privilege of cancellation upon one month’s notice), to tow their coal barges from New York, Philadephia or Newport News to Boston or •some other safe port not east of Portland, Me.
    “ The steamer to be provided with a hawser on board, and, in cases of parting the barge’s hawser, to use the same for the balance ■of the trip free of cost to Messrs. Jordan & Co. "When the steamer is in New York and obliged to wait for barges to tow, the Messrs. Jordan have the privilege of sending the tug to Sandy Hook seek•ing. The steamer is expected to go at all times when, in the judgment of the captain, it is prudent and safe for his boat and tow.

      “ Two days in each month to be allowed for washing and cleaning ■out boiler. In the event of the boat becoming disabled in machinery the lost time to be at the expense of charterers. Payments to be made on the first day of every month to W. M. Tebo for the amount ■of each month’s charter. The price to be twenty-two hundred dollars ($2,200) per month. In the execution of this charter the dangers of the sea excepted and the tug not held responsible for damages from that cause.
    “A representative of Messrs. Jordan & Co. to be on the tug at any time when they see fit and free of cost to the tug, excepting food which the tug is to supply.
    “W. M. TEBO,
    “ Haviland,
    “ Witness to both signatures: “H. G. JORDAN & CO.
    “E. R. DuNham.”
    December 2, 1888, ttíe tug, while towing defendants’ barges Charter Oak and George Moon, laden with coal, from Newport News via New York to Boston, was, with the barges, stranded at about six o’clock in the evening on Handkerchief shoals, remaining aground about an hour. At about six p. m. on the next day the barges were stranded in Boston harbor and remained aground for about an hour. By these strandings the barges were injured in the amount of $1,167.64, but the greater part of the injury was caused by the first stranding. Handkerchief and Shovelful lights are about three and a half miles apart, the latter being north-easterly from the former. Monomoy light is about a mile, and a little west of north, from Shovelful light. The channel from Handkerchief to Shovelful light is narrow, with dangerous shoals on each side.
    The defendants used the tug from October 26,1888, to December eighth of the same year, when they ceased to use it and wrote the plaintiff as follows:
    “ ¥ii. Tebo, Esq.: “ Deo. 8th, 1888.
    “ Dear Sib. — On behalf of H. G. Jordan & Co., of Boston, we are instructed to notify you that the tug ‘ B. T. Haviland’ will not be employed by them after this date on account of the stranding on December 2, 1888, and other injuries received by the tows while under charge of said boat.
    “ Yery respectfully,
    “WING, SHODDY- & PUTNAM.”
    The plaintiff replied as follows :
    “BbooklyN, Deo. 12, 1888.
    “Messrs. ¥ma, Shoudy & PutNAM :
    “ GENTLEMEN. — In answer to your notification on behalf of Messrs. H. G. Jordan & Go., of Boston, of the discharge of my tug B. T. Haviland from Dec. 8th, 1888, I will say I refuse to accept such discharge, as it is not in accordance with the terms of our contract, which provides for thirty days’ notice before such discharge can take effect, and I consider the boat is still under charter to Messrs. H. G. Jordan & Co. until said thirty days expire, which will be Jan. 8, 1889.
    “Yery respectfully yours,
    “W. M. TEBO, “H”

    The plaintiff claimed to recover the contract-price for services from October 26, 1888, to January 8, 1889 :
    Amounting to. $5, 426 64
    Less cash paid by defendants. $2 >059 00
    Earned by tug between December 8
    and January 8 . 725 00
    - 2,784 00
    Plaintiff’s claim $2,642 64

      The defendants assert that they were liable only for tlie service of the tug from October twenty-sixth to December eighth, at the contract-price:
    Amounting to. $3 > 226 64
    Cash paid... $2? 059 00
    Damages to barges. 1 >1.67 64
    - 3>226 64
    The defendants allege, in their answer, that the strandings were caused by the unseaworthiness of the tug and the negligence of its officers and pilot, who were, it is averred, incompetent. At the close of the evidence a verdict was directed for the defendants.

      William. W. Goodrich, for the plaintiff, appellant.

      Joseph A. Shoud/y, for the defendants, respondents.
   Follett, J.:

Under this charter-party, the law implies a warranty by the owner (the plaintiff) that the tug was seaworthy. (Putnam v. Wood, 3 Mass., 481-485); Kopitoff v. Wilson, 1 Q. B. Div., 377-380; Cohn v. Davidson, 2 id., 455; The Omoa Coal and Iron Co. v. Huntley, 2 C. P. Div., 464 ; 1 Par. Mar. L., 238.) A vessel which is not commanded by competent officers is unseaworthy. (Walden v. Firemens’ Ins. Co., 12 John., 128-134; Draper v. Commercial Ins. Co., 4 Duer., 234; 2 Par. Mar. L., 135.)

The plaintiff was not a common carrier and liable as an insurer of the safety of the barges, but he was liable for the damages occasioned by the failure of the master of the vessel to exercise reasonable care and skill in its management. (The “Margaret,” 94 U. S., 494-496; The Steamer “ Webb,” 14 Wall., 406; Wells v. The Steam Navigation Co., 8 N. Y., 375.) On this trial, the defendants did not attempt to show that the vessel was unseaworthy by reason of defects in its hull, machinery or material equipment, but rested their defense solely on the ground that the captain and pilot were incompetent and negligent. In reviewing the evidence given on the former trial, it was held (62 Hun, 514) that the trial court should have decided, as a matter of law, that the captain was negligent: (1.) In not anchoring his fleet at Handkerchief light instead of proceeding on his voyage in the night with a thick haze. (2.) In not taking soundings between Handkerchief and Shovelful lights, which are three to three and one-half miles apart.

On the present trial the evidence seems to have been greatly changed. After the plaintiff proved his contract and introduced the letters of December eighth and twelfth, and the necessary formal evidence he rested. . The defendant called the captains of the two barges and their superintendent of the tow who was on board of the tug at the time of the accident. Jones, the captain of the barge, G'eorge Moon, testified: “ The captain was justified, in my opinion, in going on instead of anchoring. lie was justified in going on if he knew the course and had a pilot aboard who was familiar with the course. I saw no necessity of anchoring nor of their sheering over to port. I didn’t know what they sheered over for, no idea at all.”

Hendrickson the captain of the Charter Oak testified: There was no fog; that he saw the lights known as Shovelful, Monomoy and Pollock Rip. “ I saw nothing in the condition of the wind or weather to require him (captain of the tug) to anchor. I thought it was good navigation for him to go ahead.”

Yan Cleaf testified that it was a clear dark night. “I say that originally starting for Shovelful light was good navigation.” “ There was nothing in the «weather that in my opinion t required them to stop and anchor. They could have gone on perfectly easily. Any navigator could see where they were.” He also testified that he, the captain of the tug, and its pilot all saw Handkerchief and Monomoy lights.

George M. Iiallett, a sea captain, called by defendants, testified: That he was familar with the course from Handkerchief light to Boston. He said: “ I should say that on a dark night with all the lights plainly • visible — distinctly visible;— a man who is familiar with the course should not have any difficulty in going over the course without running aground if he is familiar with it. I don’t see why he should. I don’t know of any reason if he knows all the lights.”

Huling, another navigator called by the defendants, testified: “ If there was a haze on the water so I would not see the Shovelful light vessel at all, for any reason, and I could see the Monomoy light distinctly, I would have some difficulty in going through safely with the Monomoy light in view. I could not steer the proper course with the aid of that light to carry me on. In that case I would anchor and wait until I could see the other lights. I would turn to the anchorage if the weather was so you could not see. I would not go blindfolded.-” * * * “I never anchored a long tow in that place; I have passed over there in a haze, I don’t know any one instance that I can call to mind now of passing over there when I could not see the Shovelful and could see the Monomoy.”

This is substantially all the evidence given in behalf of the defendants which beai’s upon the question as to whether the .plaintiff’s captain was negligent in not anchoring at Handkerchief light.

The plaintiff’s captain testified: “ I did not anchor, because I didn’t think it was prudent to anchor,” etc. It would not be good navigation to anchor her there.” “ It wouldn’t have been safe to anchor there at all; it would be in the track of vessels, which is against the law.”

Barnard, who was piloting the tug, testified: “ That he had been a sea-faring man since boyhood; had sailed over this route not less than a hundred times, and, in my judgment, the course of navigation which we took was good navigation, I think.” It would not have been a prudent thing to have anchored the vessel after passing Handkerchief light.”

Curran, a sea captain, testified: “Q. You don’t think it would have been good navigation to have anchored ? A. No, sir.” * * * “ It all depends upon the weather; if I saw Monomoy light clearly there would be no difficulty in going forward, if I did not see Shovelful light, and it would be prudent to go ahead then.”

Under this state of the evidence it is impossible to sustain the ruling that, as a matter of law, the plaintiff’s captain was negligent in not anchoring his tow at Handkerchief light. The question was one of fact and should have been submitted to the jury.

In admiralty cases the court may determine the law and the facts and the decisions of those courts afford but little light upon the question whether, under the practice in this State, an issue should be decided by the court as a matter of law or left to the jury as a question of fact, and, unless those cases are considered with reference to the difference in practice of the two courts, they are likely to mislead the investigator.

Whether it was negligent not to sound between Handkerchief and Shovelful lights was a disputed question of fact which should have been submitted to the jury. Again, the proximate cause of the stranding on Handkerchief shoals seems to have been, under the evidence in this case, the shifting of the course of the vessel after passing Handkerchief light, from one and a half to four points to the westward, which brought the vessels on the shoals. The captain and the pilot of the tug testified that the course was changed one and a half to two points to the westward, while the defendants’ witnesses testified that it was changed four points to the westward. The difference in this narrow channel is not unimportant. All of the witnesses agree that when the course was changed the wind was blowing and tide flowing from the westward. The plaintiff’s witnesses testified that the change was made to counteract the assumed force of the wind and tide and for the purpose of avoiding Stonehouse shoal, a dangerous one, which lay on the east side of the channel. By how much the course was changed was a question of fact, and also whether the change actually made, whatever found to be, was negligent. The judgment should be reversed and a new trial granted, with costs to appellants to abide the event.

VAN BeuNT, P. J., and O’BeieN, J., concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.


author: Yak Bbunt, P. J.:

text:
    HARMON H. NATHAN, Suing in Behalf of Himself, etc., Respondent, v. ROBERT WHITEHILL Appellant, and Others.

      Examination of a defendant to encéle plaintiff to draw his complaint — trustee of a stock corporation dealing with it.

    An examination of a defendant, to enable the plaintiff to frame a complaint based upon business dealings between such defendant and a corporation, in which the plaintiff is a stockholder, should not be granted before the plaintiff has exhausted the ordinary avenues of information by inspecting, or attempting to inspect, the books of account of the corporation.

      Nor should it be granted when it is apparent that the object of tbe application is merely to ascertain whether the plaintiff has any cause of action upon which he may reasonably hope to succeed.

      Semble, that it is not now the rule in this State that a trustee of a stock corporation cannot hare business dealings with the corporation.
    Appeal by the defendant, Bobert Whitehill, from an order, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 5th day of December, 1892, denying defendants’ motion to vacate an order obtained by the plaintiff requiring the defendants to appear for examination for the purpose of enabling the plaintiff to frame his complaint.
    The action was commenced by the service of a summons, in which the plaintiff was described as “suing in behalf of himself and of all other stockholders of the Pictet Artificial Ice Company (Limited), similarly situated with him, and who may desire to join in this action and bear their share of the expense thereof.”
    In the affidavit, on which the order was granted requiring the defendant Whitehill to appear for examination to enable the plaintiff to frame his complaint, the plaintiff alleges that he is a stockholder in the Pictet Artificial Ice Company (Limited), a corporation organized under chapter 611 of the Laws of 18Y5; that the individual defendants were directors and the defendant Whitehill the president of the company; that the defendants in certain instances had dealings with the corporation of which they were trustees, to their own advantage and profit, and that such profit, therefore, belongs, as a right, to the corporation, and that the plaintiff seeks an accounting with respect to such profits.
    The affidavit also alleges that the defendant Whitehill and others had formed a new company to transact the same business as the original Pictet Company, which has taken substantially the entire business of the old company, and that Whitehill and other defendants still retain control of the old company, which is now in a state of insolvency.

      O. JS. Hushmore, for the appellants.

      J. A. laylor, for the respondent.
   Yak Bbunt, P. J.:

We see no sufficient reason disclosed upon the papers for the granting of the order for the examination in this case. It seems to be assumed, as the basis upon which this action proceeds, that-because the defendant "Whitehall was a trustee of the corporation in which the plaintiff was a stockholder, therefore, he could not deal with such corporation. This theory, which has so long obtained in this-State, seems to have been exploded by tlie decision of the Court of Appeals in the case of Gamble v. Queens County Water Company (123 N. Y., 91).

It further appears that the company in which the plaintiff was a. stockholder kept books of account, which are within the reach of the plaintiff, and it does not appear that the plaintiff has made any attempt whatever to procure an inspection of these books, or that access to them has been denied. Therefore, when the plaintiff states that he is unable to procure the information in regard to the transactions of the company in any other way than by this examination, it does not appear that he has exhausted the ordinary avenues of information; and it seems to us that, until this has been done, the plaintiff is not entitled to the extraordinary relief demanded in proceedings of this nature.

Furthermore, this application is made for the purpose of enabling the plaintiff to frame his complaint. It would seem that he has information sufficient to prepare such a pleading to bring the parties into court. After the issues have been framed, if it should appear, to the court, necessary for the plaintiff, in preparing for trial, to avail himself of such examination, such relief can then be granted; but, we think, that there is no reason for the granting of this or^er at the Special Term, as it is undoubtedly intended as a fishing excursion to ascertain whether the plaintiff has any cause of action upon which he might reasonably hope to succeed.

The order should be reversed, with ten dollars costs and disbursements, and motion granted.

O’BeieN, and Follett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted.


author: O’BRIEN, J.:

text:
    GOTTHELF PACH and Others, Respondents, v. NICHOLAS GEOFFROY, Appellant, Impleaded with Another.

      Private nuisance — business injured by the operation of machinery — injunction — review of a case tried by a referee or by the court — interference with a lawful business.

    A tenant of a part of a building, used by him as a photograph gallery, is entitled to relief in equity restraining the unnecessary use of machinery, by a tenant of another portion of the same building, in such a location and manner as to render such use a private nuisance by causing continuous vibrations, jarrings and noises to the inconvenience of the plaintiff and his customers, and to the interference with and damage of his business, and which could be avoided by a change of the machinery to other portions of the premises held by the defendant.
    When an act has been established as a nuisance it is not necessary to allege or prove negligence, or to give proof of damages, to entitle one to equitable relief by injunction.
    A nuisance cannot be justified, or its maintenance secured, by showing that the injury which another receives thereby occurs in the conduct of a lawful business carried on with skill and care, though such business be conducted in a building used for buisness purposes, and for various kinds of mercantile and mechanical business, in a neighborhood where buildings are devoted to similar uses, and that the person complaining is using a portion of the building for business purposes.
    In a case tried before a referee or by the court without a jury, where the General Term will examine the entire record to see whether any substantial rights have been jeopardized, it is not disposed to seize upon exceptions which may be technically good, but which do not amount to prejudicial error, for the purpose of reversing a judgment which, upon the entire record, seems to be right.
    While the courts are loath to interfere with the manner of conducting a lawful business, yet when it is shown that the manner of conducting it results in injury to another, and that such injury can be prevented by changing the mode or manner of conducting the business, the court will be disposed to require that the cause of such injury be removed.
    Appeal by the defendant, Nicholas Geoffroy, from a judgment of tbe Supreme Court, entered in the office of the clerk of the citj and county of New York on the 13th day of May, 1892, on the report of a referee in favor of the plaintiffs in an action for an injunction restraining the defendants “ from carrying on the business of manufacturing on said premises by means of machinery propelled by electric or steam power, or from any other kind of business requiring the use of steam or electricity, or from using any machinery which creates vibrations and noisome sounds, and which requires the use of shafting, belting and pulleys attached to the ceiling of said premises.”
    The plaintiffs and defendant are tenants in the same building; the former are photographers and the latter engaged in manufacturing jewelry. The action is brought against the defendant, who appeals, and his brother, Arthur R. Geoffroy. The complaint alleges that the operation of the machinery used by defendants in their business produces such a vibration and noise in the building as to amount to a private nuisance and to injure the business of plaintiffs, and asks that the defendants be restrained from using any machinery which creates vibrations and noisome sounds, and that the defendants pay the costs of the action. The answer, besides a general denial of the allegations of the complaint, alleges the leasing of the premises occupied by defendant for a term of years, “ to be used for the sale and manufacture of fine jewelry,” and that defendant fitted up the premises as such with the latest and most approved kinds-of machinery, consisting of a dynamo engine with the necessary shafting, belting, etc., and that in the use of such machinery he has reduced the noise of running the same to the greatest possible minimum, and has made suggested changes to still further reduce the noise and vibration; and further alleges the misjoinder of Arthur R. Geoffroy as a party defendant.
    The issues were referred to a referee to be tried, who, after receiving a great deal of testimony upon the disputed matters, reported in favor of the plaintiffs against the defendant, Nicholas Geoffroy, finding, among other things, that the use by the defendant of his dynamo and machinery, as now operated and controlled by him, is unnecessary and unreasonable, and a private nuisance, and a continuous damage to plaintiffs; and from the judgment entered on such report this appeal is taken on the ground of error of fact in the findings of the referee, and error of law upon the facts as found.
    The following facts were established upon the trial: That in December, 1889, the plaintiffs leased from Deutsch & Go. certain space on the fourth and fifth lofts of the building 935 Broadway for a term of twelve years and three months from the 1st of February, 1890, and, having fitted up the premises, entered into occupancy of the same March 1, 1890, and commenced the conduct of their business. That in January, 1890’ the defendants took a twelve-year lease from Deutsch & Co. of certain space on the fourth and fifth lofts of the same building, and entered into possession and fitted up the premises for the purposes of their business; that thereafter Arthur R. Geoffroy retired from the firm and appellant continued the business under the name of Geoffroy & Co., and subsequently he sub-let to Deutsch & Co. a portion of the fourth floor originally leased from them by the defendants. That in fitting uj> his premises the defendant used line-shafting and pulleys and belts and a drop-hammer, the motive power of which was an electric dynamo. These were situated on the fourth floor under the premises occupied by plaintiffs as a photographic gallery. That, as first put up and operated, defendant’s machinery caused vibrations and jarrings of the floor of plaintiff’s premises, and, on complaint being made, defendant, with. a view of remedying the cause of complaint, changed the attachment of his shafting and stringers from the ceiling to a gallows-frame fastened to the columns that support the floor above. Testimony was also introduced tending to show, and the the referee found as a fact, that the jarrings and vibrations still continued to the annoyance of plaintiffs and their customers and to the detriment of plaintiffs’ business; and, further, that the removal of defendant’s dynamo and machinery to other portions of his premises, where the same would not come in contact with the flooring of plaintiffs’ operating-rooms or the uprights supporting the same, would remedy or alleviate the vibrations and noises to which the plaintiffs are subjected.

      Joseph Fett/retch, for the appellant.

      Charles E. <?’ Connor, for the respondents.
   O’BRIEN, J.:

The decree enjoins the defendant from using and operating the dynamo and machinery now used and employed by him in the conduct of his business in the place and manner and as now attached and erected by him on the premises No. 935 Broadway. It will thus be noticed that no restraint is placed on the defendant’s business nor upon the use of the machinery in connection therewith» bat that the prohibition extends only to its use in such a manner as to create, as against the plaintiffs, a private nuisance.

•If we assume the defendant’s position that his business was a lawful one, carried on in a building used for business, mercantile andi manufacturing purposes, by himself and other persons and firms* and which building is situated in a neighborhood given over to bnildings used for such purposes, and if we assume that in the construction of the dynalno and machinery complained of no negligence; was alleged or proved, the question still remains whether a court of equity will restrain the manner in which such dynamo and machinery is being used.

We do not regard this as a new question, it having been many times passed upon. In Bohan v. P. J. G. L. Company (122 N. Y., 23) it is said: “ If one carry on- a lawful trade or business in such a manner as to prove a nuisance to his neighbor, he must answer in damages, and it is not necessary to a right of action that the owner-should be driven from his dwelling; it is enough that the enjoyment of life and property, he rendered uncomfortable. * * *' The wants of mankind demand that property be put to many and various uses and employments, and one may have, upon his property,, any kind of lawful business, and, so long as it is not a nuisance and is not managed so as to become such, he is not responsible for any damage that his heighbor accidentally and unavoidably sustains.”

• The theory of plaintiffs’ action, and the ground upon which the relief was accorded to them, were, not that the building was unsuited to a business such as the defendant was conducting; not that the vicinage was unsuited to such a trade, not that the defendant had been guilty of any negligence in the selection or construction of the dynamo and machinery, but that the situation in which it was placed and the manner in which it was used were such as to make it a private nuisance. If the evidence was sufficient to warrant the findings of fact upon which the conclusions of the referee were reached, holding that the present location of the dynamo and machinery and the manner in which the same are used constituted such use of the premises a nuisance, then a court of equity would be justified m affording relief by injunction.

That proof of negligence is not essential to entitle the plaintiffs to such relief is disposed of in the opinion to which reference has-already been made, supra, in which it is said: And it may be confidently asserted that no authority can be produced holding that negligence is essential to establish a cause of action for injuries of such a character.” Without proof of negligence, therefore, if the evidence justified the findings that the operation of the dynamo and machinery in the place and manner as now attached caused vibrations and jarrings and noises which were continuous, to the inconvenience of the plaintiffs and their patrons, and to the interference and damage of the plaintiffs in the operation of their business; and if, in addition, it were shown that these acts were unreasonable and unnecessary, they were sufficient to justify his conclusion that they constituted a nuisance. Under such circumstances the failure or inability to prove pecuniary damages does not take away the power from a court of equity to redress the wrong and prevent a repetition of the injury. As said in McKeon v. See (4 Robt. Rep., 449, which case was affirmed in 51 N. Y., 300): “ The suppression of ‘ oppressive and interminable litigation,’ and the prevention of ‘ multiplicity of suits,’ equally with protection against ‘ irreparable mischief,’ form grounds of equitable interference.”

The law, therefore, as we read the authorities, is that when an act has been established as a nuisance, it is neither necessary to allege nor prove negligence, nor is proof of damage requisite to entitle one to relief. In other words a nuisance cannot be justified, or its maintenance secured, by showing that the injury which another receives occurs in the conduct of a lawful business carried on with skill and care, though such business be conducted in a building used for business purposes, and for various kinds of mercantile and mechanical business in a neighborhood of buildings devoted to similar uses, and a portion of which building the person complaining is using for business purposes.

It will thus be seen, that, after all, the ptaintiffs’ right to relief is dependent mainly upon questions of fact; the principal one being whether the defendant’s business was carried on in such a way as to constitute a private nuisance with respect to plaintiffs.

It is not our purpose to discuss, in detail, the voluminous record, and the almost equally voluminous brief of the appellant, and all the evidence and each finding made by the referee, with a view of determining the issue thus presented. That a serious conflict was presented, and that some of the findings were upon slight evidence, is unquestioned. But, taking the plaintiffs’ evidence, to which the referee gave greater credence, and upon which he placed his reliance in refusing to dismiss the complaint, and in formulating his findings and reaching his conclusions, we think, such evidence'makes out a prima facie case in favor of the plaintiffs, in showing that the manner in which the defendant conducted his business resulted in the vibrations, jarrings and noises ; and if these were as continuous and as serious as claimed by some of the witnesses for the plaintiffs, resulting in interference and damage to plaintiffs’ business and annoyance to their customers, then, upon further evidence that this could be avoided by a change of the dynamo and machinery from their present location to other portions of the premises held and enjoyed by the defendant, a case was presented entitling the plaintiffs to the relief accorded.

Feeling, therefore, that there was evidence sufficient to justify the conclusion reached by the referee, it remains to determine what the effect upon this judgment should be of certain rulings made, not only with respect to the findings, but also in regard to the admission and exclusion of evidence. It is to be remembered_ that in a case before a referee, like in a case tried before the Special Term, where the court will examine the entire record to see whether any substantial rights have been jeopardized, it is not disposed to seize upon exceptions which may be technically good, but which do not amount to prejudicial error, for the purpose of reversing a judgment which, upon the entire record, seems to be right. No case better suited for the application of this principle could be found than the one at bar. Hardly a question was asked of any witness, but an objection was interposed and an exception taken. Not a piece of evidence got into the case, but the referee was asked to make a finding with reference thereto. And after discussing the’ law, and the facts in a brief extending over 131 printed pages, we are seriously referred to over 200 exceptions grouped together by folios, the consideration of which was too much for even the appellant’s counsel, who concluded that the court’s time might be wisely employed in endeavoring to select, from among these 200 odd exceptions, or from all the other exceptions presented in the case upon refusals of proposed findings from the evidence, some ground for a reversal of tbe judgment. As in duty bound, we have gone over this record, and have, upon the whole case, concluded that the questions of fact, presented as they were upon conflicting evidence, were those upon which it was proper for the referee to pass, and the errors into which he may have fallen in no way prejudiced the defendant.

This view is strengthened when we remember the relief which has been here accorded and the ground upon which such relief was based. The plaintiffs made out a prima, facie case of a private nuisance resulting in discomfort and inconveniences to themselves, their customers and to their business upon a showing that such came from the unnecessary and unreasonable manner in which the dynamo and machinery of the defendant was placed and operated. It was to prevent such injury that the decree was made. The main portion of the argument of the defendant and one of the grounds principally relied upon by him is that no such injury resulted; that the maehinery was operated in a way to make it in no wise injurious, disagreeable or obnoxious to the plaintiffs. If the defendant can so manage his dynamo and machinery that the jarrings and vibrations complained of will be obviated or will not be present, then the decree, which has been directed simply to restrain him from conducting his business to plaintiffs’ injury cannot harm him. In other words, the injunction is not directed to preventing the defendant from carrying on a lawful business or using the dynamo and machinery, but it is to prevent him from placing and using them in such a way as to produce serious inconvenience and damage to plaintiffs and their business.

The referee has found that the injury could be obviated by changing the situation of the dynamo and by removing certain belting and pulleys from defendant’s ceiling, which, it was insisted, was the cause of the acts complained of. That the machinery and pulleys originally placed upon the ceiling produced serious jarring and vibration there is little question; but the defendant placed great stress upon his having removed a certain portion from the ceiling and placed the same upon scaffolds which did not, in height, approach the ceiling to within three or four feet. That other portions of the machinery, however, were still attached to the ceiling was not disputed, and upon the evidence it appeared to the referee that a removal of the dynamo and -machinery to another portion of defendant’s premises would obviate all the serious results.

While, therefore, the courts are always loath to interefere with the manner of conducting a lawful business, yet, when it can be shown that the manner of conducting it results in injury to another, and that such injury could be prevented by changing the mode or manner of conducting such business, the court will be disposed to require that the cause of such injury be removed. If the defendant conducts his business in such manner as to do no injury to plaintiffs the judgment does not hinder him from carrying on his trade of manufacturing jewelry upon the premises hired by him. If, on the other hand, he will persist, by the situation of the dynamo and machinery, in inflicting injury and annoyance upon the plaintiffs, their customers and their business, the decree to prevent such unlawful interference with the enjoyment of plaintiffs premises should be enforced.

We are of opinion, upon the entire record, that this judgment should be afiirmed, with costs.

YaN Brunt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.