author: By the Court.—Sedgwick, Ch. J. Freedman, J. (concurring).

text:
    SAMUEL. R. DICKSON, Appellant, v. WILLIAM C. VALENTINE and another, Impleaded, &c., Respondents.

      Equitable relief by assignee of collaterals given to secure payment of a usurious note.

    The assignee of collateral securities, which, the maker of a usurious note pledged as security for its payment, by his complaint seeks equitable relief in an action, namely, the cancellation of the note (also assigned) and the delivery of the collaterals, &c. A demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, was sustained by the court below.

      Held, that the right of action, claimed by the complaint, is expressly given by section 1911 of the Code of Civil Procedure, and that before that action was maintainable on equitable principles generally; and plaintiff is entitled to the equitable relief sought, and is not bound to proceed at law. An action at law will not lie to cancel a transaction, nor will an action at law lie to recover things pledged without the alternative of damages, if not delivered. A tender of the amount advanced on the collateral is not necessary. The offer in the complaint to pay is sufficient.
    Before Sedgwick, Ch. J., Freedman and Trtjax, JJ.

      Decided June 28, 1889.
    Appeal by plaintiff from order, interlocutory judgment and final judgment sustaining defendant’s demurrer to the complaint.

      James W. Purdy, Jr., for appellant, argued :
    I. This action is maintainable (1) under § 1911 of Code ; (2) in equity. Under said section 1911 this action is one “ to cancel or otherwise affect an act done as security for a usurious loan,” where the “act created a specific charge upon property which is also transferred in disaffirmance thereof.” The “ act done ” here is the transfer of the security to the defendant Valentine by Wilkins ; the same having been given as security for a usurious loan. The security consisting of a certificate or memorandum entitling the holder to certain certificates of stock, which security is tainted with usury as alleged in the complaint, and this infirmity of course follows the said security into the hands of the defendant John Doe, the present holder. The specific charge referred to in the said section is the title to, or lien, on the said security, which defendant Valentine got, and which defendant Doe now has through him, both of which titles are of course tainted with the usury charged. The security being thus tainted, defendant Doe stands in the shoes of defendant Valentine—no better—no rights of bona fide third persons can possibly intervene. Plaintiff is not bound to proceed at law. He has a right to ask that this particular stock be returned to him. He does not want damages. Asking for the cancellation of the note is a mere incident to the relief he wants ; he cares naught for that, but he wants this particular stock ; its value to-day is very little, but its prospective value to him is very great. Defendant treats the return of the note as the main issue ; hence the fallacy of regarding the prayer at all on demurrer. The case of Allerton v. Belden, 49 N. Y. 373, cited by respondent, is not in point; plaintiff there sought to have a note declared void. He had a good defence at law ; hence no cause for affirmative relief. The law says the transfer was void, and that the property belongs to plaintiff; he asks for its return. Equity says he is entitled to it, but he must do equity, as defendant Doe has advanced money on it. He does equity by his offer in his complaint before relief can be granted to him. This is all defendant can ask. Schermerhorn v. Talman, 14 N. Y. 129 ; Post v. Pres, of Bank, 7 Hill, 399 ; Wheelock v. Lee, 64 N. Y. 247-8 ; Merch. Bk. v. Com. Co., 49 Ib. 635, and especially §§ 1, 2 and 8 of foot-note thereto ; Rexford v. Widger, 2 Ib. 131.
    II. Tender is not necessary. The offer in the complaint is all-sufficient. ' Eurthermore, a technical tender could not be made, because the identity of John Doe is not disclosed ; the complaint shows by clear inference that his identity has been concealed by defendant Dillingham. The cases cited by respondent below simply show what is necessary to an effective tender, when proper to be made. Mr. Wilkins could have brought this suit without tender of money, he being a “borrower” within the statute, but the plaintiff being his transferee, could not bring this action without an offer in thp complaint of the amount so advanced, which he makes. These facts are all set out. It is alleged that the security was transferred upon a usurious loan—and that the transferee had a specific charge upon the property follows as a matter of law from the facts alleged setting forth his possession and the lien which the law gives him under this section to be reimbursed the amount he has advanced before he can be compelled to restore. See foot-note of Judge Jones to the case of Mer. Ex. N'l Bank v. Com. W. Co., 49 N. Y. 635. This property, the shares of stock and the certificate, thereof and all the rights thereto are with the note, all transferred to the plaintiff, and he offers to pay the sum loaned with interest. Wheelock v. Lee, 64 N. Y. 248.

      Edward F. Brown, for respondents, argued:
    I. The plaintiff seeks equitable relief. He is not entitled to it, for the reason that he has a perfect defence at law and can obtain full relief by an action at law. The court, in the caso ofi Allerton v. Belden, 49 N. Y. 377, says : “ The allegations in his complaint disclose a perfect defence at law to any action which might be brought against him on his endorsement, and no fact is stated showing any necessity for the interposition of a court of equity, or entitling the plaintiff to become an actor in the matter. The mere fact that a party has made an agreement or given a security which is void for usury is not, and never was, sufficient to entitle him to apply to a court of equity to have the contract annulled. The right to this relief exists only where, from the form of the security, the defence cannot be made available at law, or where the instrument sought to be avoided is a cloud upon the title to land, or some other necessity for the interposition of a court of equity is shown.” The plaintiff has no reason for applying to equity, for, if sued, he can set up usury, and he can recover the value of his collateral by making a sufficient tender and bringing an action for conversion.

      II. Even if the action were sustainable in equity, the tender is insufficient. The plaintiff or his assignor should have sought the creditor and made a personal tender to him of the debt and interest or paid the money into court. Grussy v. Schneider, 55 How. 188; Halsey v. Flint, 15 Abb. 367; Bronson v. Rock island R. R. Co., 40 How. 48; Becker v. Boon, 61 N. Y. 317; Brown v. Ferguson, 2 Den. 196; Park v. Wiley, 67 Ala. 410; Sheridan v. Smith, 2 Hill, 538; Livingston v. Harrison, 2 E. D. Smith, 197; Simpson v. French, 25 How. 464.
    III. Plaintiff is not a borrower within the meaning of the statute relating to usury. 1 R. S. 772, § 8; Laws of 1837, chap. 430; Vilas v. Jones, 1 N. Y. 274-278; Post v. Bank of Utica, 7 Hill, 391; Rexford v. Widger, 2 N. Y. 131.
   By the Court.—Sedgwick, Ch. J.

The action is by the transferee of a borrower in a loan, averred by the complaint to have been usurious, and as averred, certificates of shares of certain stock had been pledged by the borrower.

The plaintiff as transferree of the shares from the borrower, and of the right to cancel the act by which the security was given, brings the action to cancel, and for a delivery to him of the certificates, offering in the complaint to pay, on such delivery, the amount of the note given by the borrower.

The objection to this complaint is, that the plaintiff could recover at law what he seeks, and, therefore, that an action in equity, which the respondents claim this to be, does not lie.

The objection is not sound. An action at law does not lie to cancel a transaction. In equity, in cases like the present, it does lie, and the recovery of the thing given in security is subordinate and occasional to the principal relief. Nor does an action at law lie for the recovery of the thing pledged without the alternative of damages if it be not delivered. In equity that specific relief may be given in a proper case, and then the delivery is enforced by proceedings for contempt.

In my judgment the demurrer to the complaint should have been overruled, with leave, upon payment of costs, to withdraw the demurrer and answer over.

Judgment and order reversed with costs, and judgment for plaintiff on the demurrer, with leave to defendants to withdraw demurrer and serve answer upon payment of the costs of the demurrer.

Freedman, J. (concurring).

This action is brought by the plaintiff as assignee of the collateral which the maker of a usurious note (also assigned) gave with the note, to procure a. delivery of the note and of the collateral to himself upon payment of the amount that was advanced on the note and the collateral by the present holder. The collateral consists of 5700 shares of the capital stock of the Walnut Grove Water Storage Company.

The complaint seeks equitable relief, and the joint demurrer of the present defendants is upon the ground that the complaint upon its face does not state facts sufficient to constitute a cause of action.

The demurrer was sustained upon the ground that the plaintiff has an adequate remedy at law, namely, that he has a defence at law to any action that may be brought on the note, and that he can recover the value of the collateral in an action of trover or for a conversion.

In coming to this conclusion the learned judge below overlooked the fact that the right of action claimed by the complaint is expressly given by section 1911 of the Code of Civil Procedure, and that even before that the action was maintainable on equitable principles generally.

In his note to that section Mr. Throop shows that the section establishes the rule in the special case of an equitable action to obtain relief against a usurious security, in substantial accordance with the rulings and principles laid down in Post v. Bank of Utica, 7 Hill, 391 ; Boughton v. Smith, 26 Barb. 635 ; Carow v. Kelly, 59 Ib. 239 ; Bissel v. Kellogg, 60 Ib. 617; Schermerhorn v. Talman, 14 N. Y. 93; Bullard v. Raynor, 30 Ib. 197; Freeman v. Auld, 44 Ib. 50; Tiedemann v. Ackerman, 16 Hun, 307; Wheelock v. Lee, 64 N. Y. 242, and various other cases..

Plaintiff is not bound to proceed at law. He has a right to ask that this particular stock be returned to him. He does not want damages. Asking for the cancellation of the note is a mere incident to the real relief he wants. He may care naught for the possession of the note, but he wants this particular stock. The value of said stock may be quite small to-day, but its prospective value to him may be very great.

As the demurrer is a joint one, no discrimination requires to be made between the demurring defendants.

A tender of the amount is not necessary to sustain the action. The offer in the complaint to pay is quite sufficient.

The judgment and order should be reversed with costs, and the plaintiff should have judgment ordered in his favor upon the demurrer with costs, with leave to the defendants to withdraw the demurrer and to answer on payment of both bills of costs.

Truax, J., concurs in reversing the judgment and order with costs. He is also of the opinion that plaintiff should have judgment ordered in his favor upon the demurrer with costs, with leave to the defendants to withdraw demurrer and answer upon payment of both bills of costs.


source: Caselaw Access Project

author:
By the Court.—Sedgwick, Ch., J. Tkuax, J. (concurring).
      Feeedman, J. (concurring.)

license: Public Domain

text:
    ROBERT W. MILBANK, Appellant, v. MORGAN JONES, Respondent.

      Contract, illegality of, &c.—Pleadings, under an answer containing a general denial only to the complaint that sets up a contract, can defendant prove the illegality of the contract.

    The complaint averred that the defendant received, as trustee for the plaintiff, certain moneys and shares of stock upon the express condition that the trust might be terminated by plaintiff, at his election, on or after July, 10 1866. That plaintiff had given due notice to defendant of his election to terminate the trust, &c., and demanded the money and stock, but defendant had refused, <fcc., &e. The answer denied each and every allegation of the complaint. On the trial, after plaintiff had submitted his proofs, the defendant offered to show, and did show against the objection of the plaintiff, that the contract or the transaction, as proven by plaintiff, was illegal, and made to secure from defendant lobbying services. The objection to this proof (which was overruled by the court) was that such a defence had not been pleaded. On this question the judges of the court were divided in opinion, but all agree that the judgment should be affirmed, on the ground that the proofs of the plaintiff do not sustain the cause of action alleged in the complaint, and that, irrespective of the evidence objected to, the illegality of the contract appears.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 28, 1889.
    Appeal by plaintiff from judgment entered in favor of the defendant upon the verdict of a jury, and from order denying plaintiff’s motion for a new trial.

      Booraem & Hamilton, attorneys, and Ira Shafer, of counsel, for appellant.

      John M. Jones, attorney, and Joseph Fettretch, of counsel, for respondent.
   By the Court.—Sedgwick, Ch., J.

The complaint averred that on, &c., “ the defendant above named received as trustee for the plaintiff, $5,000 in cash, which said sum he has ever since continued to hold in trust for this plaintiff; that by the terms and conditions of the said trust, under which said sum of money was received by said defendant, as aforesaid, it was understood and provided, and said trust was upon the express condition, that the same might be terminated by this plaintiff, on or after July 10, 1866, at his election ; that heretofore and on or about the day of February, 1886, this plaintiff caused due notice to be given to the defendant of his election to terminate said trust, and demanded payment to him of the aforesaid sum of $5,000.

The answer denied each and every allegation of the complaint.

The plaintiff, on the trial, gave in evidence a certain paper which began with a form of a resolution. Then followed, ‘‘New York, June 14, 1866. Received of R. W. Milbank $5,000 and also certificate for shares, &c., the said monejr and stock to be returned to said Milbank, in case the resolution above shall not be passed and take effect before the 10th of July next. It being understood and agreed that said Milbank shall have the right at his election in case said resolution shall pass and take effect before the said 10th of July, to purchase back the said stock, &c., “ signed Morgan Jones ; ” and at the end was “I assent to and join in the above understanding and agreement. R. W. Milbank.”

The plaintiff examined a witness who gave testimony intended to show that the witness in behalf of the plaintiff, demanded of the defendant in February, 1886, the five thousand dollars. It was also proved that the resolution did not take effect before the 10th of July, 1866.

It will be perceived that the plaintiff failed to make the case, averred in the complaint, in point of fact. He put in evidence an agreement which was not a declaration of any trust and did not contain an express condition that the plaintiff might terminate the trust, The supposed obligation of the defendant to return the money did not rest upon the will of the plaintiff, but upon the fact -of the resolution taking effect before 10th July, 1866.

The defendant did not point out this variance, but proceeded to meet the case as, or as plaintiff might claim it was made, outside of the pleadings. It might be claimed that after the demand the defendant held the money for the plaintiff. The defendant then offered to show that the object of the transsaction, as shown in plaintiff’s case, was illegal, and that it was made to secure from defendant lobbying services. The objection to this proof, and which was overruled by the court, was that such a defence had not been pleaded.

I "do not think such an objection is good when the plaintiff will recover if he succeed upon a case not stated in the complaint, but upon one that first appears in the evidence. ■

Nor do I think it should be sustained when, whether competently or not, but in fact, the plaintiff places himself upon a trust, specifically so called, and resulting from antecedent occurrences, although not said so to result. The plaintiff chooses to affirm that a trust existed, meaning to give the facts that would prove the existence of the trust. The defendant should have the same kind of right to deny the existence of the trust, meaning to give in evidence the existence of facts which would show that no trust can in fact exist.

I therefore think the judgment should be affirmed.

Tkuax, J. (concurring).

I am of the opinion that it appeared on the plaintiff’s own showing that the five thousand dollars was given to the defendant for the purpose of procuring the passage of a resolution by the Common Council of the city of New York.

In the words of Mills v. Mills, 40 N. Y. 543, it was not suggested that the defendant was a professional man, whose calling it was to address legislative committees. He was simply to ask of the Common Council the passage of the resolution that was offered in evidence by' plaintiff. Such a contract is void as against public policy.

At the close of plaintiff’s case the defendant moved to dismiss the complaint on the ground that no valid trust had been established, and that' the alleged trust agreement was void, because it was made for the purpose of influencing'legislation, that is, the action of the Common Council. This motion should have been granted. It was denied and subsequently both parties offered evidence.

It appeared from the cross-examination of the defendant, who was called as a witness in his ;own behalf, that he was a plumber. Now if we strike out all the testimony to which the plaintiff objected we have this state of facts: the plaintiff deposited with the defendant, a plumber, five thousand dollars in cash and certain stock, which money and stock was to be returned to plaintiff if the resolution above referred to was not passed so as to take effect before a certain day, and that it was not passed so as to take effect before the time fixed.

This evidence did not show the cause of action set forth in the complaint, and the defendant’s motion to dismiss the complaint, made at the close of the case, should have been granted. Mills v. Mills, 40 N. Y. 543.

This view of the case renders it unnecessary to discuss the interesting question of pleading suggested by the exceptions taken by the plaintiff on the trial.

I concur with the chief judge in affirming the judgment and order, with costs.

Feeedman, J. (concurring.)

This action was brought to recover from, the defendant a certain sum of money with interest.

The complaint states that the sum of $5,000 was in June, 1866, received by the defendant, and that i't has ever since been held by him in trust for the plaintiff; that the conditions of the trust were such as to allow the plaintiff to terminate it at his election at any time thereafter; that in February, 1886, the trust was so terminated by a demand for the payment of the principal and accrued interest, and that the defendant refused payment.

The answer contains a general denial.

At the trial evidence was adduced by both parties, and the jury found for the defendant.

The principal question presented by plaintiff’s exceptions is whether, under the answer containing a general denial only, it was competent for the defendant to establish, as an affirmative defence, the illegality of the contract sued upon. This the defendant was permitted to do against the repeated objections and exceptions of the plaintiff.

In approaching the determination of this question it may be conceded, at the outset, that under the system of practice prevailing at common law, the evidence would have been admissible under the general issue, for, under the general issue in assumpsit, anything was admissible which showed or tended to show that the plaintiff never had a cause of action.

So, it may be conceded, that under a general denial in an answer in an" action on contract, the defendant may, under the Code as well as at common law, urge that plaintiff’s evidence shows that no valid contract was made, and that for that reason he is entitled to a dismissal of the complaint. Cary v. Western Union Tel. Co., 20 Abb. N. C. 333; Russell v. Burton, 66 Barb. 539; Oscanyan v. Arms Co., 103 U. S. 261.

But it is quite another thing for a defendant to introduce, under a general denial, affirmative proof of illegality in order to overcome a contract which, on plaintiff’s showing, either appears to be valid or presents a question for the jury as to whether or not it is valid. In such a case the defence of illegality as an affirmative defence is now*matter which, under the Code, must be pleaded in order to be proved. Honegger v. Wettstein, 94 N. Y. 252; Goodwin v. Massachusetts Mut. Life Ins. Co., 73 Ib. 480; Cummins v. Barkalow, 1 Abb. Ct. of App. Dec. 479; Codd v. Rathbone, 19 N. Y. 37; Mech. Bank v. Foster, 44 Barb. 87; O’Toole v. Garvin, 1 Hun, 92; Haywood v. Jones, 10 Ib. 500; Meyers v. Dorman, 34 Ib. 115; May v. Burras, 13 Abb. N. C. 384; Boswell v. Welshoefer, 9 Daly, 196.

For the same reason it has been repeatedly held by this court that, when the answer admits the making and the existence of the .contract sued upon, and contains no allegations apprising the plaintiff that the nullity of the contract is meant to be relied on, the invalidity of the contract cannot be raised under the answer. Schreyer v. The Mayor, &c., 39 N. Y. Super. Ct. 1; Stafford Pavement Co. v. Monhemier, 41 Ib. 184.

For the foregoing reasons I am clearly of the opinion that the defendant should not have been permitted to show affirmatively, as a part of his case, that the contract was illegal on the ground that it was against public policy.

The opinions expressed by my associates have satisfied me, however, that the said error does not help the plaintiff, because his own proof does not sustain the cause of action alleged in the complaint, and because, irrespective of the evidence erroneously admitted, the illegality of the contract sufficiently appears. From these considerations it follows, either that the complaint should have been dismissed, or that, irrespective of the evidence erroneously admitted, a verdict should have been directed in defendants’ favor.

. The judgment and order should be affirmed with costs.


author: By the Court.—Sedgwick, Ch. J. Truax, J. (concurring).

text:
    THOMAS E. WALKER, Respondent, v. THE SECOND AVENUE RAILROAD COMPANY, Appellant.

      Jury.—Bequests to charge and exceptions to refusals, and exceptions to charge, when to he made.

    Requests to the court to charge, ancl exceptions to refusals to charge, must be made before the jury retires. Exceptions to refusals not taken at the time of the ruling of the court, have no validity and cannot be heard on appeal. An exception to the charge, as made, can be taken at any time before the jury has rendered a verdict.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 28, 1889.
    Appeal from judgment entered on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes.

      Hutchins & Platt, attorneys, and Augustus 8. Hutch-ins, of counsel for appellant.

      L. 8. Goebel, attorney, and Charles A. Flammer, of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was for damages from alleged negligence of defendant’s servants.

The case was tried upon a theory adopted by both sides, and, in view of that, the denial of the motion to dismiss the complaint, or for a direction to the jury in favor of defendant, was not erroneous.

There were certain exceptions taken to the refusal of the court to charge certain requests made by defendant. I wish to notice that it does' not appear directly by the case that the court made the refusals. It only appears by construction or argumentatively. Assuming that there were refusals, the case shows that the exceptions to them were made after the jury had retired to deliberate. The appeal assumes that the requests were made before the jury had retired. If they had not been, a refusal would have .been justified on that ground. But exceptions to. refusals, not taken at the time of the ruling of the court, have no validity as exceptions, and cannot be heard upon the appeal. It is an exception to the charge as made, which can be taken at any time before the jury have rendered their verdict. Section 995, Code Civil Procedure.

There was one exception to the charge. The court had charged that the jury might consider the effect of certain things, in assessing damages for the loss of services, and then proceeded “ all these elements are to be considered and the pain that she has undergone, so far as it prevented her from being of this use to the parent, all these things are to be considered in making up your opinion as to the amount of damages.”

The defendant’s counsel excepted to the charge “that the pain that she has suffered may be considered with other elements of the case.” The court had riot charged that, but charged that the jury might consider the pain, so far as it prevented the child being of use to the plaintiff. It is then argued that there was no evidence that pain had diminished the quantity or affected the quality of the services. If this be deemed the objectionable part of the charge, then the charge being right in principle, the attention of the court should have been directed to the particular thing which was the ground of the objection. It does not appear to me that the testimony would not have permitted the jury to find that, in consequence of pain, the plaintiff could not do services that she had been in the habit of performing, so as to entitle the plaintiff to nominal damages at least on this account. But the exception did not refer to this matter of the amount that might be found by the jury.

The judgment and order should be affirmed with costs.

Freedman, J., concurred.

Truax, J. (concurring).

I am of the opinion that the case does not show that the trial judge refused to charge as requested by the defendant, or that the defendant excepted in a proper manner to any such refusal. It was the duty of the defendant to see that all exceptions, upon which it.intended to rely, were properly noted. It was also the duty of the defendant to present to the appellate court a case showing directly and not inferentially that it had requested the trial judge to charge certain propositions ; that the trial judge had refused to charge such propositions, and that it, the defendant, had excepted to such refusal. Briggs v. Waldron, 83 N. Y. 586.

I concur in the opinion of the chief judge.


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

text:
    WALTER E. KILPATRICK, et al., Respondents v. COLUMBIA BANK, Appellant.

      Verdict, direction of—New trial, verdict against the evidence.

    The plaintiffs made out a slight cas.e. On the close of the testimony on both sides the case was submitted to the jury who found for the plaintiffs ; but in view of all the evidence in the case, Held, that a motion made by defendant, at the close of the evidence on both sides, for a direction of a verdict in its favor, should have been granted; and the judgment and the order denying a motion for a new trial were reversed and a new trial ordered.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 28,1889.
    This is an appeal from a judgment entered upon a verdict in favor of the plaintiffs against the defendant, and from an order denying the defendant’s motion for a new trial.
    The action was brought to recover from the defendant a certain sum of money which the plaintiffs claimed the defendant had received to the use of plaintiffs.
    The answer, besides containing a general denial, alleged that the money mentioned in the complaint was paid by the plaintiffs to the defendant as the purchase price of certain notes made by one Myers, which notes were then held by the defendant.
    The facts sufficiently appear in the opinion.

      Adolph L. Sanger, attorney and of counsel, for appellant.

      Kelly & MacRae, attorneys, and Wm. F. MacRae, of counsel, for respondents.
   By the Court.—Sedgwick, Oh. J.

In this case, I think the motion for a new' trial, on the ground that the verdict was against the evidence, the defendant having at the trial claimed that the court should direyt a verdict, because the preponderance of evidence was with the defendant, should have been granted. The plaintiffs made out a slight case. Many probabilities, intrinsic in the circumstances, were in favor of defendant. The defendant’s witnesses gave substantial testimony in contradiction of plaintiffs. In rebuttal the plaintiffs called as a witness, a person for whose credibility they vouched by putting him under oath. That witness’s testimony told for the defendant and against the plaintiffs, so clearly and in such substantial respects, that to me it appears certain that the preponderance of evidence was with the defendant. The motion should have been granted.

I think, also, that the verdict should have been directed for defendant, as requested on the trial.

Judgment and order appealed from reversed, and a new trial ordered, with costs to appellant to abide the event.

Freedman and Truax, JJ., concurred.


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

text:
    WILLIAM BROOKS, Appellant, v. SUSAN A. LUDIN, Respondent.

      New trial in negligence case, when not granted on ground of insufficiency of verdict.—Physician’s bill, when jury not bound to find for its face.

    The jury rendered a verdict for plaintiff of $ 30, damages for injuries received by him through the defendant’s negligence. There was evidence of incidents and appearances tending to show that the injuries were slight and trivial, and that their nature and extent had been exaggerated by plaintiff in his testimony. Held, that it was the province of the jury to determine on the evidence as to the nature, character and extent of the injury, and to measure their verdict according to their finding thereon; and that the court could not say that the finding of the jury thereon called for a larger verdict than that which they rendered.
    On the trial it appeared that the physician who attended the plaintiff rendered him a bill for $160 for about twenty attendances, and that the bill had not been paid. There was no testimony that the charge was reasonable or customary. Held, under this state of the evidence, that the jury were not bound to find a verdict for the face of the bill.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 28, 1889.
    Appeal by plaintiff from judgment entered on verdict in his favor, and from order denying a motion for a new trial, on the ground that the damages given by the verdict were sufficient. Section 99,-Code Civil Procedure.
    The facts sufficiently appear in the opinion and head notes.
    A. Oldrin Salter, attorney, and Alexander Thain, of counsel, for appellant.

      Deyo, Duer, & Bauerdorf. attorneys, and Robert E. Deyo, of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

There was no exception taken at the trial which entitled the appellant to a reversal of the judgment.

The opinion of the learned judge, denying the new trial for the insufficiency of the verdict, was plainly correct. Besides the right of the jury to determine that the extent of the plaintiff’s injuries and their effects had been exaggerated by him in his testimony, and to duly weigh the testimony of the plaintiff’s physician on the same points, there was testimony on the side of the defendant as to incidents and appearances, that, if believed, would require the jury to consider that the plaintiff’s testimony was not accurate.

The learned counsel thinks that, at least, the verdict should have been as large as the medical expenses of the plaintiff as sworn to by himself and by his physician. The jury, however, was not bound to find for the face of the bill rendered. The case was not serious and the treatment was simple. Eight dollars a visit was charged. But the physician, and no other witness, testified that the charge was reasonable or customary. The bill had not been paid by plaintiff.

The jury were bound to give only such damages as were proved.

Judgment and the order appealed from affirmed, with costs.

Freedman and Truax, JJ., concurred.


author: Pee Cubiam.

text:
    WILLIAM STANLEY, et al., Respondents, v. WILLIAM PICKHARDT, et al., Appellants.

      Trial, conduct of .—Questions properly ruled out.—Transactions between defendants and third parties, when admissible on behalf of plaintiff.

    Questions of the following character: “What was the agreement ?” “What was the understanding?” “For what purpose was a check
    given ? ” are properly ruled out.
    In an action brought to recover compensation for legal services rendered in an action, defendants claimed that they were not to pay therefor, but that one Webster was to, and in support of this claim one of the defendants on direct examination testified, among other things, that he told Mr. Clark, one of the plaintiffs, that the defendants had an arrangement with Webster; that Webster had to see to the action as far as he was concerned, and had to pay all the expenses, except those of Mr. Smith, who was to be their personal counsel in the matter, which the defendants were to pay.
      Held, that, on cross-examination, interrogatories to the witness as to payments by defendants of divers expenses connected with the action, other than those of Smith, were properly allowed.
    Before Sedgwick, Ch. J., Fbeedman and Tbuax, JJ.
    Decided June 28, 1889.
    Appeal by defendants from judgment entered on report of referee.
    The facts sufficiently appear in the opinion and the head notes.

      C. Bainbridge Smith, attorney and of counsel, for appellants.

      Stanley, Clarke & Smith, attorneys, and Edwin B. Smith, of counsel, for respondents.
   Pee Cubiam.

The main objection to the judgment, as urged, is that it is not supported by the evidence. There was explicit testimony, which, if the referee believed it, required him to find for the plaintiffs. In support of this were facts and inferences which corroborated that testimony. Against it was other testimony, directly and inferentially contradictory. A review of the case does not produce a result different from that reached by the referee.

There was a class of exceptions which were not valid, because the rulings to which they were made were that witnesses cannot testify to matters of opinion or inference or law, such as, what was the agreement or understanding, instead of what was said and done between the parties, or the purpose for which the check was given, instead of the particulars of the transaction.

Another class of exceptions comprise cases where the referee allowed questions to be put to one of the defendants as a witness, calling for the fact of his-paying other claims like the one in action. These questions were put on the cross-examination. On the direct examination the witness had given testimony, that he had said to one of the plaintiffs that the defendants had a contract with one Webster; that the latter should pay all expenses in a certain suit, and this might have been used not only to contradict witnesses for plaintiffs, but also to show that defendants had no motive or interest to make the contract in action which related to the expenses. On cross-examination the plaintiffs had a right to neutralize or modify this by showing, if possible, that all other expenses had been paid by the defendants. And this right of plaintiffs was connected with their competent attempt, to show, by the same questions, that the contract with Webster concerned other subject-matter than that of the contract in this action.

No exception in the case should be sustained.

Judgment affirmed with costs.


text:
    THE COLUMBIA BANK, Appellant, v. THE GOSPEL TABERNACLE CHURCH, Respondent.

      Banking.—Overdraft, when cause of action as for, does not arise.—Opening an account by a treasurer of a corporation in his own name, with the addition “ as Treasurer,” effect of.—Ratification, powers of trustees andofficers acting as individuals in respect thereof.

    Where a bank discounts for one of its depositors a note of a third party endorsed by such depositor, and credits him with the amount of the note, less the discount, in his account with the bank, and the depositor checks out the entire sum so placed to his credit, and thereafter the note, which was discounted, was not paid at its maturity, and was protested for non-payment, an action will not lie against the depositor in favor of the bank for the amount so credited, based on the theory that by reason of such facts there was an over-draft by the depositor to the extent of the amount so deposited. An account opened with a bank by a treasurer of a corporation in his individual name, with the addition ‘‘ as Treasurer,” there being no proof that such designation was with the knowledge of the corporation, or by its - direction, or that it had been ratified, is the individual account of the person who opened it, and not the account of the corporation; and the fact that creditors of the corporation were paid by the checks of the person who opened the account signing them “ as Treasurer ” will not make the account that of the corporation.
    Neither one nor several of the trustees or officers of a corporation can, as individuals, ratify an act done without corporate authority.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 28, 1889.
    Appeal by plaintiff from judgment entered on report of referee.
    The facts sufficiently appear in the opinion.

      Holmes & Adams, attorneys, and George H. Adams, of counsel for appellant.

      Edward S. Clinch, attorney, and of counsel for respondent.
   By the Court.—Sedgwick, Ch. J.

The complaint averred that the plaintiff was a corporation of this state engaged in the business of banking ; that the defendant was a religious corporation of this state ; that between May 1, 1885, and about the month of March, 1887, the defendant was a depositor with the plaintiff, and as such kept an account with plaintiff, in which deposits of defendant were entered and credits given for the proceeds of the discounting of drafts procured from plaintiff by defendant and against which checks were drawn ; that the business was so done, that on or about March 31, 1887, the defendant had drawn or been paid by plaintiff, the sum of $3,428.25, over and above all deposits made by, or money received from, defendant; and on said day last mentioned, there was, by reason of the premises, due and owing the plaintiff by the defendant, the said sum of $3,428.25.

That on or about November 1, 1886, the plaintiff received from defendant a certain promissory note, dated November 1, 1886, made by the Tribune & Farmer Co., Limited, to the order of E. Duncan Sniffen, for the sum of $3,500 at four months from its date ; that said note, when so received by plaintiff, was duly endorsed by the said payee thereof, and by defendant, and was received by plaintiff as collateral security for credits, loans and advances, or some of them, made as aforesaid to defendant ; that plaintiff held such note until its maturity, when it was duly presented for payment and payment demanded, but no part of the same was paid, of all of which defendant was duly notified.

The answer put in issue the material allegations of the complaint.

The testimony showed that E. Duncan Sniffen, was, at the times in question, the treasurer of the trustees of the defendant. The defendant was a religious corporation. ' Sniffen, as treasurer, was entrusted and entitled to the custody of the moneys and funds of the defendant. In May, 1885, he requested plaintiff to be allowed to open a deposit account as such treasurer, and he then represented that he was such treasurer “ and that the account was and would be that of defendant.” At the time another trustee of defendant was present. Thenceforward deposits were made and checks drawn in the usual manner. The most of the checks were to persons to whom the defendant was indebted for rent, for music, printing, repairs, heating and lighting the church building, pastor’s salary and the purchase price of the church land and building. Six of these persons were acting trustees of the defendant. While the account was running, two notes of third parties, one of them payable to and endorsed by the pastor of the church, and who was a trustee, was discounted by the bank at the request of E. Duncan Sniffen, as treasurer, and the proceeds credited to the defendant. The referee found that these notes were made for the benefit of the defendant, and that their proceeds went to its use and benefit. They were paid at maturity.

About November 1, 1886, Sniffen presented for discount the note mentioned in the complaint. The plaintiff discounted it and Sniffen endorsed it as treasurer, and thereupon the proceeds were credited to the account of E. Duncan Sniffen, treasurer.

Before this note fell due, the account had been drawn upon, so that there was a remaining credit of $128.34. •

I here observe upon these facts, that the so-called discount was a purchase of the note by the bank, from E. Duncan Sniffen, Treasurer, and that the purchase price became absolutely and unconditionally the money of the seller, and that no cause of action can be founded upon the drawing out of the money or its appropriation by the seller. So that if it be assumed that the defendant was the real and principal party, yet its obligation would be solely upon its being an endorser of the note. The action was not, and on the trial was not assumed to be, against the defendant as endorser.

Afterwards, a.small check on the account was paid, leaving a balance of $51.51. Before this Sniffen had ceased to be treasurer, and David Greer, as trustee, became treasurer. He drew a check, as treasurer, for the balance, which was paid by the plaintiff.

Afterwards the note of $3,500, at its maturity, was presented for payment but remains unpaid. The plaintiff produced the note before the referee, and offered to deliver it to the defendant, upon payment by the defendant of the present claim.

I have said that, in my opinion, the only action the plaintiff could have would be upon the endorsement. If the note was sold, without the endorsement of the seller, the buyer would have no recourse to the seller, in a case like the present.

The learned counsel for the plaintiff argues that there is liability because the account in the name of E. Duncan Sniffen was, as he argues, the account of the defendant. I do not think the position to be correct. Sniffen was treasurer and entitled to custody of the defendant’s funds and entitled for his and its protection to deposit those funds in a bank." He had the right, with which it could not interfere, to identify those funds by any title he might assume, which was appropriate. If the title “ Treasurer ” had a specific indication, it was that he acted not as the corporation who appointed him, but as an individual who was an officer.

But of this designation of the account, there was no proof that it was made by the corporate knowledge or direction of the defendant. There was no prior authority, and ratification to exist must be made by the same being who had capacity to give prior authority. If one or several trustees or officers of a corporation, cannot without corporate authority do an act or bestow authority to act for the corporation so that the corporation will be bound, People’s Bank v. St. Anthony’s R. C. C., 109 N. Y. 502, they cannot as individuals ratify an unauthorized act.

Nor does the fact that the creditors of the defendant were paid by checks of Sniffen, as treasurer, upon this account, make it the account of the defendant. The inference from such transaction would be that the defendant assented to Sniffen paying out of his account, money for defendant, because it was his duty to pay out money on the request of the defendant to the extent that moneys of the defendant had been deposited in the bank to that account, and though equitably to the extent of such moneys, the deposit might be made a fund, belonging to the defendant, that did not destroy the legal relations between the bank and the depositor, so long as the equitable right was not asserted. This equitable right would not allow the defendant to. draw checks upon the account which the plaintiff would be bound to pay.

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

'Freedman, and Truax, JJ., concurred.


author: Tbtjax, J. By the Coukt.—Sedgwick, Ch. J.

text:
    GEORGE T. NEWHALL, Appellant, v. WILLIAM H. APPLETON, et al., Respondents.

      Costs, security for additional when, cannot be required.—Deposit, withdrawal of, effect.—Orderswhen deemed made under § 8276.—Filing an undertaking under an order for an additional security, effect of on power of court.

    Where, under an order for security for costs made under § 3272 of the Code of Civil Procedure, the plaintiff makes a deposit in lieu of filing an undertaking, the court has no power to order additional security under § 3276. The facts that the defendant had, under an order of the court, withdrawn from the clerk the deposit, and afterwards under a permissive order replaced it, and that thereafter the plaintiff in an action brought by him against the defendant to recover the amount so withdrawn by him recovered judgment therefor, which judgment the defendants had satisfied, do not vest in the court any power to make an order under § 3276.
    Where an order for security for costs has been made under § 3272, and has been complied with, all subsequent orders for security for costs made while it remains complied with are to be regarded as made under § 3276, unless it is therein otherwise expressly stated. The fact that a plaintiff who has complied with the first order for security for costs made under" § 3272, by making a deposit complies with subsequent orders (the first remaining complied with), requiring security for costs by filing an undertaking, does not empower the court to make another subsequent order requiring security for costs.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 28, 1889.
    Appeal by plaintiff from an order requiring him to give an additional undertaking as security for costs.
    Note.—It will be seen from the statement of the case, that the amounts, deposited by plaintiff under the first and second orders, were paid to the defendants by the clerk, pursuant to the order of the court. It is not perceived how this alone can affect the status obtained by plaintiff, by making the deposit under the first order ; the effect of the payment to defendants was simply that they held the deposit instead of the clerk; the undertaking given under the order of June 18,1886, while this was the situation of things, could only be regarded as given under an order for additional security, and, consequently the giving of it would not, under the decision, empower the court to make the order appealed from'. The question as to what would have been the effect if the order of June 18, 1886, had been made, and the undertaking given thereunder had been given, allowed and filed after and not before the recovery of the city court judgment and its payment, did not arise on the appeal. It may be that in such event the order for security would have been regarded as an original order under § 3272, as the effect of such judgment and payment was to wipe out the first order and the deposit thereunder and leave defendants without any security, and this was the result of plaintiff’s action. There was nothing, therefore, to add any security to, and consequently an order simply requiring security to be given, without expressly declaring it to be “further” or “additional,” might well be regarded as requiring original security under § 3272.—The order appealed from cannot be so regarded, for it expressly states that the undertaking required by it is to be given as additional security; it was, therefore, evidently made under § 3276, and on the assumption that some security already existed. It may further be suggested as to whether, after the city court judgment and its payment, defendants might not have either expressly moved under § 3272 for security for costs, on the ground that by the act of plaintiff there was no security then existing, and had their motion granted, or moved the court for an order to compel the plaintiff to comply with the first order by either giving an undertaking or making a deposit.
    The obtaining by defendants of the moneys deposited by plaintiff, does not appear to affect any of the questions determined in the opinion, as above suggested.—Reporters.

      The plaintiff in this action being a non-resident, an order was made on July 24, 1878, requiring him to file security for costs. In compliance with this order he deposits with the clerk of this court $250 in lieu of an undertaking. Issues were joined in the action which were first tried before a jury. The trial resulted in a verdict for plaintiff. A new trial was ordered by the general term, with costs to abide the event. The cause was then referred to a referee to hear and determine the issues. At this stage of the case defendants made a motion that plaintiff file additional security for costs, on which motion an order was made, dated January 26, 1881, requiring plaintiff either to pay into court $250 in addition to the sum already paid, or file an undertaking in that amount. Pursuant to this order plaintiff paid into court an additional sum of $250. Afterwards the referee reported in favor of defendants, and judgment was rendered therein against the plaintiff for $1,105.90, costs and disbursements. Thereafter, on defendants’ motion, plaintiff opposing, an order dated December, 1881, was made, directing the clerk of the court to pay over to defendants the said two sums of $250 each, to be applied on said judgment for costs, and also ordering the plaintiff to pay into court the further sum of $250 to be applied to the payment of costs, if any. awarded against him, or to file an undertaking in that amount. Under this order the clerk of the court paid over to the defendants the said two sums of $250, and plaintiff filed an undertaking, executed by one Kearney, for the payment to the defendants of all costs which might be awarded against plaintiff, not exceeding $250, which undertaking was approved on justification.
    Thereafter plaintiff appealed from said judgment to the general term of this court, which affirmed the judgment below with costs, and judgment of affirmance with. $113 costs was entered against plaintiff June 5, 1883.
    After the entry of this judgment Kearney paid the $113 to defendants, and plaintiff afterwards reimbursed him.
    Thereafter plaintiff appealed to the court of appeals, and that court reversed the two judgments entered against the plaintiff, and ordered a new trial with costs to abide the event. The cause was then again referred to a referee to hear and determine, who reported in favor of the plaintiff, and judgment was entered June 24, 1886, on his report against defendants for $4,185.62 damages and costs. Defendants appealed to the general term of this court. At this stage, and on Aug. 2, 1886, defendants served a notice of motion, bearing date that day, for an order granting them leave to retain in their possession the said two sums of $250, and the said sum of $113, until the final termination of the action, or, in default thereof, that defendants be required to pay said sums to the clerk of the court, to be retained by him until the final termination of the action, as security for costs on the part of the plaintiff as a non-resident. On July 10, 1886, plaintiff filed an undertaking, executed by «one McCormick and one Johnson, for the payment of all costs which might be awarded to the defendants, not exceeding $500. The undertaking did not show that it was given pursuant to an order, nor did it have any allowance endorsed thereon. It is stated in an affidavit that it was given under an order entered June 18, 1886, directing security for $500. The precise terms of the order, however, do not appear.
    On the 24th day of August, 1886, the plaintiff assigned to W. W. Badger the said $613, and all his .right, title and interest therein and thereto, and to any and to all claims and causes. of action arising therefrom against the defendants. On the 25th day of August, 1886, Badger commenced an action in the city court of New York against these defendants to recover said $613, and interest. Subsequent to said 25th of August, the motion, initiated by the notice of August 2, 1886, came on to be heard August 26, 1886, upon affidavits setting forth the above matters, and resulted—plaintiff being heard in opposition, in an order bearing date September 4, 1886, whereby it was ordered “ that the defendants are hereby granted leave to pay the said sum of $500 (being the aggregate of said two sums of $250,) and $113, to the clerk of this court, to be retained by him until the determination of this action as security for the costs on part of the plaintiff as a non-resident, and that, when so paid, the clerk of this court shall retain said sums accordingly.”
    On the 25th of September, 1886, defendants, pursuant to the leave granted by the order of September 4, 1886, deposited with the clerk of this court said two sums of $500 and $113. On the 30th of September defendants answered the complaint in the city court action, and the issues joined thereby were tried before the court without a jury on the 8th day of October, 1886, when the above matters were all proved. The trial resulted in a decision in favor of Badger, the plaintiff, upon which decision judgment was, entered against the defendants for $779.19 with $121.05 costs, amounting together to $900.24.
    The judge before whom the city court action was tried, delivered the following opinion (after reciting the facts):
    “ The defendants’ counsel truly says that the main question in this case is one of title, and contends that the plaintiff’s assignor had no title to the moneys in question, and therefore could not assign anything to plaintiff. If this be true it is an end to plaintiff’s case. ,

      “ It will be conceded that the plaintiff’s assignor originally owned the five hundred dollars, and having reimbursed the surety to the undertaking, he also owned the one hundred and thirteen dollars when the money was deposited in the Superior Court. Plaintiff’s assignor still owned the money, subject to his title being divested upon a recovery of judgment by defendant against him for costs, upon which the court could make an order divesting said plaintiff of his title, and ordering the money to be paid over to defendants. The defendants did recover a judgment, and the money so deposited was duly paid over to defendants ; and the title thereto became vested in them by virtue of an order of the court. This title was absolute so long as the judgment stood; but when the same was reversed and annulled by the court of appeals, the title to the moneys again became vested in plaintiff’s assignor, subject only to the payment of costs, in case defendants again recovered judgment; but the plaintiff’s assignor having succeeded on the new trial, no costs could be awarded against him, and his title to said money became absolute, and the same could not be held as security for costs, as there could be no costs, the plaintiff in that action having succeeded.
    “ The Code provides that a non-resident plaintiff must give security for costs, if he seeks the benefit of beginning and carrying on a litigation in our courts. This is a very proper, and perhaps necessary, protection to parties compelled to defend actions brought by non- residents ; but when such non-resident plaintiff has succeeded, and a judgment including costs, has been awarded to him, and it has been determined that he is not liable for costs," there is certainly no reason for his giving security.
    ' “The judgment of the Superior Court being in favor of plaintiff’s assignor, it must be assumed that it is correct. It cannot for a moment be considered that it is going to be reversed on appeal; and, this being the case, the plaintiff’s assignor cannot be liable for any costs.
    “ The Code requires a non-resident to give security for costs for litigating disputed claims, in orneo urts, but when the claim is ripened into a judgment in his favor, it does not require him to give security for the privilege of resisting an appeal from the judgment and endeavoring to sustain and confirm the action of the court. To take any other view would be tantamount to assuming that the judgment of the court was wrong.
    “ It appears to me that a fair test in this case would be to suppose that no security had previously been given by plaintiff’s assignor, and defendants had only now discovered that he was a non-resident. Would the court order him to give security for costs after he had recovered a judgment ? Clearly not, and, therefore, there is no reason for keeping his money.
    “ The defendants, when they succeeded in the Superior Court, had the right to assume, and did assume, that its judgment was right, and they obtained the money deposited as security, but if they had awaited the appeal to the court of appeals, and not taken the deposit, the title of plaintiff upon the reversal of the judgment would have been complete, and the fact of their having withdrawn the money cannot alter the title.
    “ The defendants having seen fit to withdraw the money deposited, and to compel payment on the undertaking, without awaiting the decision of the court of appeals, and having had the use of it, I see no reason why they should not be charged with interest from the time they received it.
    “ If the defendants succeed upon their appeal in the Superior Court action, they will then be in a position to require security for costs before the plaintiff can be allowed to try his case again or prosecute a further appeal.
    “ The order of the Superior Court, granting defendants leave to deposit the money in that court, was made upon their application, which was resisted by the plaintiff, and was not mandatory upon them, and does not and could not relieve them from any liability already incurred ; and such order was not made until after the assignment of the claim to plaintiff and until after this action had been begun.
    “ It follows that plaintiff is entitled to judgment for the sum of $613, with interest.”
    An appeal was taken from the City Court judgment to the general term of the Common Pleas where it was affirmed (Badger v. Appleton et al., 6 N. Y. State Reporter, 288).
    An appeal was taken to the court of appeals which was dismissed by that court. 110 N. Y. 652.
    Subsequent to August 2, 1886, (the precise date does not appear), the above-mentioned appeal taken to the general term of this court by the defendants from the judgment entered against them was argued, and the general term affirmed the judgment. Thereupon defendants appealed to the court of appeals where the judgment was reversed and a new trial ordered about April 26, 1889.
    On April 26, 1889, defendants procured an order requiring plaintiff to show cause why he should not be compelled to give security for costs herein. On the hearing of the motion initiated by this order to show cause, the above matters were made to appear. The judge before whom the motion was heard granted it, writing as follows :—
   Tbtjax, J.

“ Thisis a motion to compel the plaintiff, who is a non-resident, to give additional security for costs. Five hundred dollars were deposited by plaintiff as security for costs, but was afterwards ‘obtained by him. He then gave an undertaking in the sum of $500 as security for costs. I am of the opinion that the fact that plaintiff has obtained the money that he deposited as security for costs, distinguishes this case from the case of Honduras v. Soto, 112 N. Y. 310. There is no longer any money on deposit as security for costs. The plaintiff has given an undertaking, but the papers show that this undertaking is insufficient. Section 3276 of the Code of Civil Procedure provides, that any time after the allowance of an undertaking, the court, upon satisfactory proof that the sum specified in the undertaking is insufficient, must make an order requiring the plaintiff to give an additional undertaking. Section 3273, provides, that the undertaking shall be in at least the sum of $250. This, by implication, authorizes the court to order security in a sum greater than $250, if the affidavits show that the costs will be more than that sum. Section 3276 provides for an additional undertaking, and does not provide for the deposit of a sum in lieu thereof. It was, in effect, stated by the court of appeals, in Honduras v. Soto, that the power of the court to order security for costs depends upon statute, ‘ and authority, therefore, must be found in the statute or it does not exist.’ It therefore follows that where a person has given an undertaking he must, if the court sees fit, give an additional undertaking in the form prescribed by section 3273, which undertaking must be at least $250. The affidavits show that the costs will be at least $1,000, and for that reason I am of the opinion that the plaintiff should give another undertaking in the sum of • $500.”

Upon this decision an order dated May 14, 1889, was made, whereby it was ordered. “ That the plaintiff be and is hereby required within twenty days from the service of a copy of this order on his attorney, to furnish an undertaking in the sum of $500; with two sureties in the usual form, as additional securities for costs herein,” etc.

From this order the present appeal is taken.

William, W. Badger, attorney and of counsel for appellant, argued.

I. It is wholly immaterial what became of the plaintiff’s two deposits of $250 each, after defendants withdrew them from this court. If plaintiff had withdrawn them by order of this court, before the final end of the case, it might possibly be argued that such an act would be a revocation of his election to deposit them, but defendants having withdrawn them by order, the account is closed, and the object of the deposits was-fully accomplished, and the power of the court thereby exhausted by the first order, as ruled in Honduras v. Soto, 112 N. Y. 310. In re village of Middletown, 82 Ib. 196 ; People, ex rel. Brown, v. Woodruff, 32 Ib. 355.

II. It is no reason for making an illegal order that two other illegal orders have already been made and been complied with by plaintiff. So much the more should his objection now prevail. It goes to the jurisdiction and power of the court, and so can be taken at any time, and it certainly has not been waived as to this order appealed from. As the court plainly had no power to order that undertaking to be given, the order is without jurisdiction and void and the undertaking falls with it, or at most is only the plaintiff’s voluntary act. Moreover, the voluntary giving of a prior undertaking does not bring the case within the letter or the spirit of § 3276. Being for $500, it does not even purport to be given under § 3272, nor as “ additional security ” under §-3276, which section only applies “ after the allowance of an undertaking given pursuant to such an order.” In fact, this undertaking was never “ allowed ” by the judge at all ; and if “ deemed allowed ” for want of exception, under § 3275, it “must be indorsed and filed in like manner,” as if excepted to ; that is (as required by § 3275), that the judge “must indorse his allowance thereon and cause them to be filed with the clerk.” The undertaking shows no “ allowance ” nor “ order,” and no power was, therefore, acquired under § 3276 to make this order appealed from.

Campbell & Paige, attorneys, and Edward Winslow Paige, of counsel, for respondents, argued :

The matter is exactly within the language of the Code. The plaintiff has filed two undertakings, one 12th January, 1882, and the other 10th July, 1886, which were allowed. Both of them have now become insufficient, and according to the Code, the court must make an order “requiring the plaintiff to give an additional undertaking.” (Section 3276 quoted above.) In the Honduras case no undertaking had been filed, and that case has therefore no sort of application.

By the Coukt.—Sedgwick, Ch. J.

The only authority that the court has for ordering a plaintiff non-resident to give an additional undertaking, because a former undertaking is insufficient in amount, is found in section 3276, Code Civil Procedure.

That section, in effect, empowers the court to order an additional undertaking when it is proved “ that the sum specified in the undertaking is insufficient.” This condition must be strictly and literally observed. Honduras v. Soto, 112 N. Y. 310. Was there any such proof below. The undertaking referred to in the words that have been cited, is indicatedby the first part of the section, in these words: “ At any time after the allowance of an undertaking given pursuant to such an order, etc.” And such order is the order that may be made under section 3272, Code Civil Procedure. In fact, such an order was made in this action, but under it no undertaking was given and allowed. In lieu thereof, as the order provided, the plaintiff paid into court $250. to be applied to the costs if awarded. As no undertaking was allowed under section 3272, the court had no power to order an additional undertaking.

It is true that after the first order and before the application below, other undertakings had been ordered. These, however, were orders made under section 3276 and not under section 3272. Under the latter, as we have said, no undertaking was allowed, and such an allowance is the condition of issuing an order under section 3276. These intermediate orders do not create an estoppel as an adjudication.

Order appealed from reversed with costs, and motion denied with $10 costs.

Freedman, J., concurred.


text:
    ANN LOORAM, as Administratrix, etc., Respondent, v. THE THIRD AVENUE RAILROAD COMPANY, Appellant.

      Negligence, death caused by.—Action to recover damages, etc.—Practice as to stating exceptions.

    The first objection of the appellant is, that there was no proof that the death was caused by the injury received through the negligence alleged. The immediate cause of the death was peritonitis. Plaintiff's medical witnesses testified that peritonitis may be caused in seven different ways, and there was no proof but that several of these causes existed in the case that could not be attributed to defendant’s case, but there was proof, however, that a certain cause actually existed which the jury might competently find ensued from the negligence.

      Held, that the rule to be applied in such a case is that, there being a sufficient, cause shown, causes that were not made to appear did not exist.

      Held, also, that it is irregular to make an exception by inserting in the case that ‘‘defendant excepts to foregoing italicized portion of the charge.” An exception must be taken at the trial, and at that time the charge is not in print, and no part of it can be italicized. This exception can be entertained only by supposing that on the trial there was an exception to a part of the charge represented by the italics in the printed case, and then proceeding to consider the supposed exception.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 28, 1889.
    Appeal by defendant from judgment entered on verdict for plaintiff, and from order denying defendant’s motion for new trial made upon the minutes.

      Hoadly Lauterbach & Johnson, attorneys, and William N. Cohen, of counsel, for appellant.

      Daniel P. Mahoney, attorney, and W. Bourke Cock-van, of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

The action was for damages, suffered by the next of kin of plaintiff’s intestate, from the death of intestate, caused by the alleged negligence of servants of defendant.

The first objection of the appellant is, that there was no proof that the death was caused by the injury received through defendant’s negligence as alleged.

The immediate cause of death was peritonitis. The argument for appellant is, that plaintiff’s medical witnesses testified that peritonitis may be caused in seven different ways, and there was no proof but that several of these causes, which could not have been attributed to defendant’s negligence, existed in the case. There was proof, however, that a certain cause, which the jury might competently find ensued from defendant’s negligence, actually existed. The rule to be applied, there being a sufficient cause shown, is that causes which were not made to appear did not exist. There was no deficiency of proof in this respect.

There was no legal objection to the questions asked of the witness Dr. McCreery.

The court refused to allow a question asked of a medical witness, which was, what can you say, with reasonable certainty, were the probabilities of Looram’s life or living with that condition that you found? While this question was properly excluded, as it only referred to the probability of Looram’s living at all with his kidneys in the diseased state proven, the court subsequently allowed an examination on the subject intended, by proper questions asked by the defendant’s counsel to as great an extent as he wished.

In his charge, the court remarked, that a certain witness had testified to a certain thing, adding “if I remember correctly.” The counsel did not correct the court by turning its attention to the fact that another witness had testified to the matter and not the witness named by the court, but excepted to that part of the charge. The court had previously told the jury that they and not the court were to determine what testimony had been given. The exception is without substance.

The charge of the court, as made, was without error, and sufficiently comprised all the matters, to which the defendant’s requests referred, which should have been charged. In my opinion it is irregular to make an exception by inserting in the case that “ defendant excepts to foregoing italicized portion of the charge.” An exception must be taken at the trial, and at that time the charge is not in print and no part of it can be italicized. The exception can be entertained only by supposing that on the trial there was an exception to a part of the charge represented by the italics in the printed case, and then proceeding to consider the supposed exception. .

The verdict cannot be disturbed as excessive in its assessment of damages.

Judgment and order affirmed with costs.

Freedman, J., concurred.


text:
    FIFTH NATIONAL BANK OF PROVIDENCE, RHODE ISLAND, Appellant, v. NAVASSA PHOSPHATE COMPANY, Respondent.

      Corporation.—Authority topresident to endorse negotiable paper.

      ■ The question on the trial was, whether the endorsement on the note Navassa Phosphate Company, W. E. Lawton, Pres’t,” was the endorsement of the defendant. Prima facie this endorsement did not bind the company, although W. E. Lawton was its president, for the latter fact did not tend to prove that he was authorized to sign the company’s name as endorser.

      Held, that the plaintiff was bound to furnish competent evidence that the president ■was, in fact, authorized to make the endorsement, or that the company had held him out as authorized to that extent, or that the defendant was estopped from denying his authority.
    No testimony was given that authority had been given specifically to the president, and on a review of the evidence tending to show that the defendant had recognized its liability upon endorsements of this kind,—Held, that it did not establish that defendant had recognized that Lawton was authorized to sign the corporate name in endorsement.
    Before Sedgwick, Oh. J., and Freedman, J.

      Decided June 28, 1889.

      Appeal by plaintiff from judgment dismissing the complaint, entered upon direction at trial term.

      Abram Kling, attorney and of counsel, for appellant, argued :
    I. It is a settled rule of law that if the endorsement of the notes of a corporation by one of its officers is within the scope of his authority, actual or apparent, the corporation is charged with liability, without reference to the question of authority in fact. Bank of Attica v. Pottier & Stymus Co., 1 N. Y. Supplement, 483. Second National Bank of Allentown v. The Same, 2 Ib. 644.
    II. The plaintiff as a bona fide holder of the notes is not affected by any fraud of Lawton’s in exercising his power to indorse. In Olcott v. Tioga R. R. Co., 27 N. Y. 560,the court said : “ The limit of an agent’s authority may be determined by the power which he is allowed to exercise ; and the silent acquiescence of the principal may be equivalent to express authority ; in other words authority may be shown by circumstances.” In New York & New Haven R. R. v. Schuyler, 34 N. Y. 30, the court held that the doctrine of implied agency, when it arises out of negligence, has its basis in this principle of estoppel in pais. That principle is based on the injustice of allowing a party to be the author of its own misfortunes and then charging the consequences on others. If the directors of the company, no matter whether through inattention or otherwise, suffer its officers to pursue a particular line of conduct for a considerable period without objection, they are as much bound to those who are not aware of any want of authority as if the requisite power had been directly conferred. The company placed in Schuyler’s hands the very instrumentalities by which the injury was wrought. They imposed restrictions upon its use, but. omitted the safeguards which ordinary prudence would dictate to discover or prevent their abuse. Bank v. Clements, 6 Bosw., 166 ; Affirmed, 31 N. Y., 33 ; Farmers & Merchants’ Bank v. Bank, 16 N. Y; 125.

      Alexander & Green, attorneys, and Eugene L. Richards, of counsel, for respondent, argued :
    I. Plaintiff failed to show itself a bona fide holder, because it failed to prove that it had knowledge of the apparent authority of Lawton to make the endorsements in suit. Plaintiff failed to show that it had discounted similarly endorsed notes for defendant, and that such discounts and endorsements were known to and ratified by defendant ; or to show previous similar transactions with other persons, also ratified by defendant, and that these facts were known to plaintiff at the time it discounted the notes in suit. This defect was fatal to a recovery by plaintiff. Second National Bank v. Pottier, etc., Mfg. Co., 18 State Rep. 954 ; Dabney v. Stevens, 40 How. 341.
    II. The alleged previous endorsements by Law-ton were not proven to be similar to the ones in suit and were not, therefore, proof of any implied authority upon which plaintiff can recover.. The introduction by defendant of by-law 4 in evidence, showing that Lawton had authority from defendant to make these endorsements only with the approval of two trustees, threw upon plaintiff the burden of proving one of two things, either, that the endorsements in suit were made with such approval, or, that the previous alleged endorsements were made without such approval.
    III. The alleged previous endorsements by Lawton were not proven to have been ratified by or even known to defendant, and are therefore no basis of any implied authority.
    IV. The mere proof of Lawton’s handwriting and official connection with defendant was not of itself proof either of express or implied authority, and the complaint was properly dismissed. The mere fact that Lawton was president of defendant, or treasurer, or both, gave him no authority to endorse notes for defendant. All authority of defendant to dispose of or pledge its assets, was vested in the board of defendant’s trustees, and Lawton, in any capacity, only had such express authority as they, acting as a board, delegated to him. The plaintiff failed to prove such authority, and the complaint should have been dismissed. People’s Bank v. St. Anthony’s Church, 109 N. Y. 512 ; Adriance v. Roomet 52 Barb. 399 ; Dabney v. Stevens, 40 How. 341; Affirmed 46 N. Y. 681 ; Marine Bank v. Clements, 3 Bosw. 600 ; Risley v. Railroad Co., 1 Hun, 204 ; Queen v. Second Ave R. R. Co., 35 Super. Ct. (J. & S.), 154 ; Jackson v. Campbell, 5 Wend. 572 ; Titus v. Cairo, etc., R. R. Co., 37 N. J. L. 98, 102 ; Fulton Bank v. Canal Company, 4 Paige, 127, 134 ; Blen v. Bear River Co., 20 Cal. 602.
   By the Court.—Sedgwick, Ch. J.

The action was against the defendant as endorser of two promissory notes. On their face the notes were payable to the order of Navassa Phosphate Company. The endorsement was “ Navassa Phosphate Company, W. E. Lawton, Pres’t,”'and then the further endorsement “ Lawton Brothers.” W. E. Lawton represented Lawton Brothers, and there was no partner. The note was delivered to the plaintiff by W. E. Lawton, was discounted for him, and the proceeds remitted to him.

The question on the trial was, whether the endorsement, “NavassaPhosphate Company,” was the endorsement of the defendant. Prima facie the endorsement did not bind the company, although W. E. Lawton was president of it. For that fact did not tend to prove that he was authorized to sign the company’s name as endorser.

The plaintiff was, therefore, bound to give some competent evidence that the president was in fact authorized to endorse, or that the company held him out as authorized. No testimony was given that authority had been given specifically. The only other evidence on this point consisted of proof of many former endorsements of the company’s name by Lawton, in which cases the paper had been transferred and the seeming obligation of the company, as endorser, had been satisfied.

The plaintiff, when it discounted the notes in action, did not know of these former endorsements excepting in a few instances in which they had discounted notes. These were but a few, and so' few that the jury could not find that they of themselves established the liability, and as to them there was no proof of ratification. Therefore, the plaintiff could not prevail on the ground of estoppel as if the defendant had given apparent authority to, or recognized authority in, Lawton to endorse for them, on which the plaintiff had acted.

The plaintiff must then resort to the inferences to be drawn from cases of former endorsements not known to it at the time. Necessarily the inferences must be drawn from the actual facts and not a part of the facts. The former endorsements must be examined in the light of the circumstances that would give them the real significance that should be duly attached to them.

The plaintiff gave many instances where notes payable to the defendant had been endorsed by Lawton, as president, and then discounted at his request, by the bank where the defendant kept its account, and the proceeds of the discount were deposited to the. credit of the account. In these instances it would appear that an endorsement was a formal matter, so far as authority was concerned, for the receipt of the proceeds specifically ratified, and would, under all circumstances, ratify the endorsement whatever form it had.

The plaintiff would not be entitled from such cases to infer that the defendant had authorized its president to make it liable for endorsements to others, as transferring its 'cause of action on the paper to others.

There were proved, also, many other cases of notes which had been made by third parties to the order of the company and endorsed by Lawton in the name of the company, as its president or treasurer; and then Lawton procured the discounting of them, and they had been afterwards paid. This testimony was not effective for the plaintiff, because the transactions were all conducted by Lawton personally. There was no proof that, in his fraudulent conduct, he did anything which gave notice to the company, excepting himself, of what he personally had done, and which they must be held to know before they can be bound as if by a ratification. If, in fact, the payments were made from the funds of the company, there was no proof that there were on the books of the company, any entries that disclosed that such payments had been made upon a pretended liability of the company upon an endorsement made by Lawton for the company as president. These transactions, if they had been known by the plaintiff, as they were in actuality, would not have evinced any action of the company in view of an endorsement by Lawton as president.

The evidence as to the former endorsements were, at a first and insufficient glance, plausible from their number and their amount. A scrutiny shows that it was vague, and that it did not import consideration valuable to the plaintiff. Several witnesses relied on by the plaintiff spoke of masses of notes and gave general statements as to them. A part of those statements would be decisive for the defendant, and there was no certainty that they were not to be applied to all of the notes referred to, in mass.

I am of opinion that the earlier transactions did not show that the defendant had recognized that Lawton was authorized to sign the corporate name in endorsement.

The learned counsel for plaintiff argued that testimony was stricken out which would have shown that the defendant had recognized its liability upon , endorsements of this kind. The testimony on this point was extremely vague and insufficient. It referred to a mortgage which it was assumed had been received by the defendant as security against losses by the defendant from such endorsements. I cannot find that such was the purpose of the security. There was nothing testified which would be inconsistent with the defendant’s denying liability on such endorsements, and properly refraining from enforcing the mortgage as to every case in which it appeared that, though endorsement was unauthorized, yet there was no loss excepting as to the costs and expenses of a defence.

I think the judgment should be affirmed with costs.

Fkeedman, J., concurred


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    MARY V. AMERMAN, Respondent, v. BERTHA DEANE, Appellant.

      Equitable action.—Injunction.—Measure of damages in.

    Each of the parties to this action was the owner of lots and buildings upon them in a block in the city of New York. The original owner of the block sold and conveyed it to different persons in various portions. In each of the original conveyances was a covenant by the grantee for himself and his assigns, that neither he nor they would erect, suffer or permit upon the premises conveyed, any tenement house, and it was agreed in the said conveyances that this covenant should run with the land. The parties to this action held title to their respective premises under some of those conveyances. The defendant built upon his lot a tenement house, and had maintained it as such, to the time of the commencement of this action. Held, that under the facts found by the trial judge, the plaintiff was entitled to an injunction restraining the defendant from maintaining the tenement house he had erected; and the plaintiff was also entitled to a judgment for such damages as he had suffered from the defendant’s violation of the covenant in past time.
    By the judgment in this action the plaintiff recovered as damages the difference in value of his house as it was affected by the tenement house, and the value it would have possessed if the lot on which the tenement house was built was a vacant lot. Held, that this rule of damages was erroneous. He could not have been damaged to such an amount. Also, that the measure of damages in an equitable action of this kind, is not different from the measure in a legal action for damages, and such damages as might be recovered in a legal action brought for the damages, may be recovered in an equitable action for an injunction and damages, because equity will give full relief but will not increase the amount that might be recovered by law.
    On the question, whether damages to the plaintiff’s premises in the future and for all time could be assessed in this action, Held, that they could not be so assessed.
    Before Sedgwick, Ch. J., and Freedman. J.
    . Decided June 28, 1889.
    Appeal by defendant from a judgment entered upon findings, &c., made by a judge at special term. The following opinion was delivered at special term:—
    Truax, J.—The covenant was made for the express purpose of preventing the erection of tenement houses in the block mentioned in the covenant; and although tenement houses have since been erected in the immediate neighborhood that fact does not authorize the defendant in erecting a tenement house in violation of the provisions of the covenant; for it is evident from the fact that the parties interested entered into the covenant that such erection was anticipated, and that they intended to secure the property mentioned in the covenant from the disturbing influence of tenement houses. In Columbia College v. Thacher, 87 N. Y. 311, it was something not mentioned in the agreement and thus something not anticipated by the parties to the agreement that caused the change in the neighborhood, and that authorized the defendant in maintaining a building prohibited by the agreement. Judgment is ordered for plaintiff, with costs.

      John H. Deane, attorney, and Cephas Brainerd, of counsel, for appellant.
    . William J. Townsend, attorney and of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

The parties to the action were severally the owners of lots and buildings on them in a block in this city. The former owner of the block had conveyed the whole of it to different persons in various portions. In each of the conveyances by him was a covenant by the grantee for himself and his assigns, that neither he nor his assigns would erect, suffer or permit upon the premises conveyed, any tenement house, and it was agreed that this covenant should run with the land. The parties to this action held under some of these conveyances. The defendant built upon his lot a tenement house and had maintained it up to the time of the bringing of this action.

Under the facts as found by the judge, he was justified in holding that the plaintiff was entitled to an injunction restraining the defendant from maintaining the tenement house he had built on his lot, and also in holding that it did not appear that such a restraint would be inequitable because the covenant, if specifically enforced, would substantially deprive the defendant of the only use of his lot to which it could be profitably devoted, and that, whatever change there had been in the neighborhood, it did not deprive the plaintiff of a right to an injunction inasmuch as the covenant had been made between the parties originally as a preventive of the injurious effects of such a change if it should occur. Lattimer v. Livermore, 72 N. Y. 174 ; Trustees of Columbia College v. Thacher, 87 Ib. 311.

The plaintiff was also entitled to a judgment for such damage as he had suffered from the defendant’s violation of the covenant in past time. He recovered the difference in value of his house as it was affected by the tenement house, and the value it would have possessed if the lot on which the tenement was built was a vacant lot. I cannot see how, according to the evidence, he could have been damaged in that amount. He would not be damaged by his inability to procure the greater value, or upon a sale, when there was no proof that he wished or had wished to sell or to procure the value. Until he was selling no damage would accrue to him excepting such as would arise from the diminution, caused by the tenement house, of the value of his occupation. Of this latter there was no proof. I do not agree that the damage assessed was in part that flowing from canses other than defendant’s tenement house. They were confined to the effect of that house upon plaintiff’s premises, but as they did not relate to the diminished value of the occupation, the judgment given for their amount should be reversed.

If the larger question was to be considered, that is, whether damages to the plaintiff’s premises in the future and for all time could be assessed in such an action, I would be of the opinion, that the Pond case, 112 N. Y. 186, and the Uline case, 101 N. Y. 98, determine that they could not. The measure of damages in an equitable action of this kind, is not different from the measure in a legal action for the damages. The principle is, that such damages as might be recovered in a legal action brought for the damages, may be recovered in an equitable action for an injunction and the damages, because equity will give full relief. But equity does not increase the amount that might be recovered at law.

For the reason given the whole judgment should be reversed and a new trial ordered. On that trial, there may be a fresh examination of the question of whether it is equitable under the circumstances to give an injunction.

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

Freedman, J., concurred.