author: By the Court—Hoffman, J.

text:
    Mary Creed et al., Plaintiffs, v. Geo. Hartman, Defendant.
    1. Where a contractor for doing the mason work in the erection of a house on a public street in the city of Hew York, makes a sub-contract with a third person to^ make necessary excavations, &c., and the sub-contractor leaves his excavations in the sidewalk unprotected, so that a traveler, without fault on his part, falls therein and is injured, the original contractor is liable to the person injured, notwithstanding the sub-contractor covenanted to prevent all accident, by proper precautions, and to be responsible for all damages caused by interrupting the sidewalk.
    2. A question to the person injured, viz.: “State to the jury the effect of that injury upon you, and how your situation is ? ” is unexceptionable, where the answer merely details the nature and extent of the injury, and states only facts within his knowledge, and not matters of opinion requiring professional skill in their just formation.
    (Before Hoffman and Woodruff, J. J.)
    Heard, January 16;
    decided, March 9, 1861.
    Exceptions taken at the trial, and there ordered to he first heard at General Term.
    The plaintiffs, Mary Creed and George A. Creed, husband and wife, bring this action to recover damages for injuries to the wife, caused by her falling into an excavation, on the first of August, 1859, on the sidewalk in Third avenue, between Eorty-seventh and Forty-eighth streets, in the city of Hew York. The defence of the defendant George Hartman, is based in part on the facts : that he is a mason; that he and his partner, Eberspacher, contracted with the owner of the lots to do all the mason work, in erecting eleven houses on this avenue between the streets named; and having such contract, they entered into a written sub-contract on the 12th of March, 1859, with one Thomas Brady, to make all necessary excavations, &c.; to remove all superfluous earth, and to refix and repave the avenue and streets, in which it was covenanted that “ all accidents are to be prevented by the contractor (Brady) by proper precautions; and all responsibility, of damage that may be caused by blasting or interrupting the sidewalk, shall be made good by the contractor without any extra charge, or after claim whatever,” and that Brady had sole charge of such excavation and work at the time of the alleged injury.
    The action was tried before Mr. Justice Bobertsoh and a jury, on the 8th of Hovember, 1860. On the trial, Mary Greed was examined on her own behalf, and asked this question, viz.:
    “ Q. State to the jury the effect of that injury upon you, and how your situation is ?”
    To which question the defendant’s counsel objected, which objection was overruled by the court, to which decision and ruling the counsel for the defendant then and there duly excepted.

      A. It affected me in a good many ways ; my head has been hurt from it;' my knee pains me all the time; I cannot carry anything- up stairs, my side hurts so; my thigh feels bad once in a while; it pains me when it is going to storm all the time; that leg is shorter than the other ; I have to get a gaiter made to suit, with the heel made larger than the other, and a piece on the side; my thigh was broken in the middle, right across; I was confined seven weeks in bed; I cannot say how deep the sewer was; it was very deep.”

      When plaintiffs rested, the defendant moved a dismissal of the complaint, on the grounds :
    “First. That defendant, not being the owner of the premises, was not liable in this action.
    Second. That Christian Eberspacher, the defendant’s partner in the erection of the buildings, should have been joined as a party defendant.
    “ Third. That it appeared that the neglect of the plaintiff contributed to the injury.
    “ Fourth. That the excavations were not made by the defendant, but by one Thomas Brady under a contract made by defendant and his partner, Eberspacher, with said Brady, and that defendant was not liable for the acts or omissions of said Brady.
    “ Which motion was denied by the court, to which ruling and decision the defendant’s counsel then and there duly excepted.”
    When the testimony was closed, defendant moved to dismiss the complaint, on the grounds (first) that if there was any negligence, it was that of Brady; and (second), that if defendant was liable, Eberspacher should also have been made defendant. The motion was denied, and defendant excepted.
    The judge charged, “ that Hartman was responsible for injury done to the plaintiff, if the accident occurred through the negligence of persons employed by him, provided there was no negligence on the part of the plaintiff.” The charge, as made, was not excepted to.
    “ The defendant’s counsel then asked the court to charge the jury that where a party has a license to construct a sewer at his own expense, if he contracts it to a third party he is not liable for any accident occurring through the negligence of such third party.
    “ The court refused so to charge, but charged that if the excavation was caused by the party sued, he was responsible for not having that excavation properly protected, although he might not be liable had the accident occurred while blasting was actually going on by the contractor.”
    To the refusal to charge as requested, the defendant excepted.
    The jury found for the plaintiffs $600 damages. The Judge then ordered the questions of law arising at the trial to be first heard at General Term.

      Wm. R. Stafford, for defendant.
    I. The excavations in question having been made by Brady and his workmen, and they having the sole charge thereof at the time of the accident, under an independent contract, and not as our servants, neither the defendant nor his firm were liable for their negligence. (Blake v. Ferris, 1 Seld., 48 ; Kelly v. The Mayor, 1 Kern., 432 ; Pack v. The Mayor, 4 Seld., 222 ; Rapson v. Cubitt, 9 Mees. & Wels., 710.)
    II. The plaintiff was incompetent to state the effect of the injury upon her. The question, as to the effect of it, presupposes that she was an expert, and had a sufficient knowledge of medical science to demonstrate the effect produced from the cause alleged. Such a rule would nullify the necessity of skill, and allow the feelings, prejudices, and mental conclusions of an ignorant plaintiff to outweigh the facts, even with the most impartial jury.
    III. The court erred in refusing to charge as requested. The request was in exact conformity with the law, as laid down in Blake v. Ferris. Brady was as much bound to protect the excavation as he was to make"it.- The entire control was vested in him, and defendant had no right to interfere with him while in performance. The verdict should be set aside, and judgment for the defendant ordered.

      A. L. Pinney, for plaintiffs.
    I. The action is properly brought against the defendant. (Storrs v. The City of Utica, 17 N. Y. R., 104 ; Conrad v. Village of Ithaca, 16 id. ; and note 185 ; Mayor of New

      York v. Bailey, 2 Denio, 433 ; Bush v. Steinman, 1 Bos. & Pul., 404.)
    II. The exception that Brady was guilty of negligence amounts to nothing—the defendant may have been guilty of negligence too—the exception does not meet the case.
   By the Court—Hoffman, J.

The action was for a personal injury alleged to have been received by the plaintiff from the negligence and fault of the defendant, in not properly securing an excavation, opposite certain houses, for which he was contractor and part owner.

The injury was clearly proven. The plaintiff was exempted by the jury, under a proper charge of the judge to the point, from all negligence on her own part. There is no complaint as to the amount of damages.

A leading ground of defense is, that one Brady, and not the defendant, is responsible for the injury, if any one is so.

The clefendant is proven to have built a range of houses, under ah agreement by which he was to have a lease of two of them on his own account, and the accident happened in front of one of these two.

The defendant, and one Eberspacher, his partner, were parties to the original contract with the owners of the ground or houses, and they had made a contract with Thomas Brady, by which he was to make all the excavation necessary for the erection of the eleven houses, the mason work of which was to be performed by the defendant and his partner. By this agreement, Brady was to dig out all the ground and other matters now on the premises, and to blast the rocks required for cellars, &c., “ all accidents to be prevented by the contractor, (Brady,) by proper precautions, and all responsibility of damage or damages, whatsoever, that may be caused by blasting, or interrupting the sidewalks, shall be made good by the contractor, without any extra charge or after-cl aim whatever.”

The defendant moved to dismiss the complaint, on the ground of the sole liability of Brady, if there was any, which motion was denied, and an exception taken.

It should be observed that the place of the accident was the sidewalk, opposite to one of the houses. There was no barrier, and the boards put across broke from the weight of the plaintiff. It was an areaway dug out from the house to the curbstone.

Eo license from any corporate authority, to dig the area, appears in the case.

I do not think the case would be substantially varied, (actual neglect properly to guard the excavation being shown,) if there had been a license proven; nor if we are bound, as counsel insist, to assume that it was obtained— that the defendants did not act without authority.

It seems to me that the principles of the case of Storrs v. The City of Utica, (17 N. Y. R., 104,) and the very pertinent decision of the Court of Appeals in Congreve v. Smith, (18 N. Y. R., 79 ; S. C., 5 Duer, 495,) make the defendant liable, even assuming that Brady may have been so.

Another ground of the motion for a nonsuit was, that the defendant’s partner, Eberspacher, ought to have been joined as a party defendant in the action. The case of Low v. Mumford (14 John. R., 426,) cited by the counsel of the plaintiffs, appears decisive of this point. (See also 1 Chitty Pl., 86.) It is in the nature of an action for a nuisance, caused by the acts of the defendants, and against which they had not protected passers by, and both are liable separately.

The court was asked to charge, that where a party has a license to construct a sewer at his own expense, if he contracts it to a third party, he is not liable for any accident occurring through the negligence of such third party. To a refusal so to charge an exception was taken.

Understanding this to mean a license from the proper municipal authority, there is no ground in the case for the request.

The exception taken to the question addressed to the plaintiff, as to the effect of the injury upon her and her situation, is untenable. She states in reply nothing but facts, of which she in some respects could alone be fully-apprised, and in all was best apprised. There is no opinion of an expert elicited or requested.

Judgment must he ordered for plaintiffs on the verdict. Ordered accordingly.


source: Caselaw Access Project

author: By the Court — Woodruff, J.

license: Public Domain

text:
    Marston, Plaintiff and Respondent, v. Vultee et al., Defendants and Appellants.
    1. Where the property embraced in a chattel mortgage is left in the possession of the mortgagor, pursuant to au agreement between him and the mortgagee, made at the time, that he may go on with it as before, and sell it, so as to support his wife ,and children, the mortgage is, for this cause, fraudulent and void.
    2. Upon uncontradicted testimony of such an agreement, it is error to submit it to a jury to determine as a question of fact, whether the mortgage was made in good faith, and without intent to hinder, delay and defraud creditors.
    3. It is none the less fraudulent because the mortgagee was mother of the mortgagor, and made the agreement and left the property pursuant to it, to enable the mortgagor to support his family.
    (Before Hoffman and Woodruff, J. J.)
    Heard, December 14, I860;
    decided, March 9, 1861.
    Appeal by the defendants, Lewis H. Vultee, Jr., Stephen Bogart, Jacob Bogart and Charles Daly, from a judgment against them in favor of the plaintiff, Mary Marston, rendered on a trial had before Mr. Justice Hopfmas and a jury, on the 9 th of May, 1860.
    The plaintiff brings the action to recover the possession of chattels mortgaged to her by her son, Robert Marston, to secure a just debt. Vultee, a constable, took them on an execution against Robert Marston. Daly acted in aid of the officer in removing the goods, and the Bogarts were licensed auctioneers, and acted as such in selling the property for the constable.
    The mortgage was in proper form, was regularly filed, and the evidence tended to show that it was made to secure money loaned. Robert Marston was a gunsmith, and kept a store at Ho. 211 Fulton street. The property mortgaged consisted of his tools and stock in trade. The property was left in his possession. The plaintiff testified (among other things) thus, viz.: “After tké mortgage was executed and given to me, I allowed him to carry on his business, and sell just as he did before; I never took possession of any of the things mentioned in the mortgage; I never carried any of them away, but left them with him to sell and use, as he did before the mortgage was given; it was spoken of at the time of the giving of the mortgage, that he was sued, and that a judgment would be entered against him; he never paid me "any of the money back; after the mortgage was given, and before the levy, I did not take away any of the property; it was spoken of at the time of the mortgage being executed, and I told him that he could go on with the property, as before, so as to support his wife and children.”
    The defendants moved a dismissal of the complaint, on this testimony, which was denied, and they excepted. A dismissal in behalf of Vultee was also moved, on the ground that no demand of the property had been made of him, before suit brought; which motion was also denied, and an exception was taken. The Judge left the question to the jury, as a question of fact, whether the mortgage was given in good faith, to secure a just debt, and without any intent to hinder, delay or defraud the creditors of R. Marston.
    On the question of the effect of a want of change of possession, and in relation to the excuse therefor, he charged thus, viz. r“that the statute required an immediate delivery, and an actual and continued change of possession, but whether the omission of this was fraudulent or not, was for the determination: of the jury; that although it had been sometimes held that kindred love or affection would not be a sufficient cause for leaving mortgaged property in the possession of a mortgagor by a mortgagee, he should leave it to the jury to say whether there was a sufficient excuse upon the evidence, as sworn to by the plaintiff, of her having so left it to enable her son to support his family to negative the presumption of fraud.”
    To that part of the charge allowing the jury to say whether the reason above assigned by the plaintiff, was a sufficient excuse for leaving the property with the mortgagor, the defendant’s counsel then and there excepted.
    The jury found a verdict for the plaintiff, and from the judgment entered thereon, the present appeal is taken.

      A. L. Pinney, for the appellants.

      A. R. Dyett, for the respondents.
   By the Court — Woodruff, J.

It was held in Edgell v. Hart, (9 N. Y. R., [5 Seld.,] 216,) that where it is provided in a mortgage upon chattels, either in express terms or by necessary implication, that the mortgagor shall not merely continue in possession, but that he may continue to retail the mortgaged property and receive the proceeds to his own use, the mortgage is fraudulent and void as against creditors, and it is the duty of the Court so to declare, and there is no question to be submitted to the jury. The instrument is of such an import that it must be pronounced void by its own provisions and a verdict sustaining it as a valid instrument must be set aside as often as one should be rendered. (See Williston v. Jones, 6 Duer, 504.)

• The reason why it must be so pronounced is, that the writing furnishes conclusive evidence of the fraudulent intent. The instrument cannot operate according to its provisions without defrauding creditors. It cannot, therefore, be permitted to operate at all.

If in any case a mortgage upon chattels is in fact made and delivered under that identical arrangement and with that same purpose it must be held alike fraudulent and void as against creditors, although the instrument does not on its face express that intent. It is because the instrument is made and delivered with intent that it shall operate in a manner which hinders, delays and defrauds creditors, that it is void; and when that is proved either by the language of the instrument or by clear and uncontradicted evidence dehors the instrument, it must be so found by the jury, or their verdict should be set aside as against evidence. The provision which makes all questions of fraudulent intent under our statute concerning fraudulent conveyances, questions of fact to be determined by the jury, does not make their verdict unqualifiedly supreme and final on such question. If they render a verdict against the evidence it may be set aside with the same propriety as in any other case, and if the Court submit the question of fraud to them generally without proper instructions, the verdict may be set aside in like manner.

Hence Mr. Justice Demo says in Gardner v. McEwen, (19 N. Y. R., 126), in substance that if there be an agreement between the mortgagor and mortgagee that the former may continue his business of buying and selling as usual, the mortgage to attach to what might remain when it should have to be enforced, the jury should be instructed that such arrangement renders the mortgage void as against creditors and to find accordingly. When it is afterwards said that the indications of. fraud arising upon possession of the goods, and the conduct of the parties .respecting them must be submitted to the jury, it was not intended to say anything, inconsistent with the proposition that if the jury should find that such an arrangement was made, it is their duty to find the mortgage fraudulent and void, and it is plainly suggested that if the verdict in such case should (the fact of the arrangement not being denied) uphold the instrument, the verdict should be set aside. ■

We have no hesitation in saying that the views' thus suggested are in harmony with the adjudged cases as well as with our own opinions.

Under this exposition of the subject, how stands the ■case of the present plaintiff? We will assume that there '.was fairly and.honestly due to her from her son, the debt ■which the mortgage was given to secure. The mortgage 'was-given to her duly executed and acknowledged upon his stock of goods. It was on its face legal and valid, and was duly filed as required by the statute. But the plaintiff herself states the arrangement under which it was executed and delivered. If necessary, it might be added that other witnesses strengthen the proof of fraud, but the plaintiff can have no cause to complain if her own statement of the transactions be taken as true and her rights be tested by that.

She says-: “After-the mortgage was executed and given to me, I allowed him to carry on his business and sell just as he did before; I never took possession of any of the things mentioned in the mortgage ; I never carried any of them away, but left them with him to sell and use as he did before the mortgage was given; it was spoken of at the time of the giving of the mortgage that he was sued, and that a judgment would be entered against him; he never paid me any of the money back; after the mortgage was given, and before the levy, I did not take away any of the property; it was spoken of at the time of the mortgage being executed, and I told him that he could go on with the property as before so as to support his wife and children.” However true it may be that the case discloses a kind and maternal regard, on the part of the plaintiff, for her son and his wife and children, a willingness to aid him and to give him indulgence, that he and his wife and children might be supported at the hazard even of losing the money she had lent him, we cannot resist the conclusion that, according to her own statement, this mortgage was fraudulent and void upon the very ground above stated. In fact, if the arrangement was carried out, the mortgage was no security to her at all, and was not intended to be; if he sold the property, as it was agreed he might, then she got nothing. Her testimony is very clear, however, to the distinct fact, that it was spoken of when the mortgage was given, and she agreed that he might go on as before, and, notwithstanding the mortgage, apply the property to his own use and the support of his family. The form of a mortgage was interposed between the property and Ms creditors, not in order to secure to the plaintiff her money, but in order that the debtor might retain possession and appropriate the proceeds of his sales to his own benefit, notwithstanding, or in spite of, impending judgments. We think, therefore, the defendants were entitled to have the jury instructed that if the arrangement testified to was made at the time the mortgage was given, that was evidence of a fraudulent intent which entitled the defendants to their verdict, and that it was erroneous to submit to them the question whether the plaintiff had shown a sufficient excuse for leaving the property with her son under the arrangement she had testified to.

In this we do not mean to say that in every case in which, a mortgage being given on a stock of goods, the mortgagor continues to sell, the mortgage is to be necessarily deemed fraudulent; but where the arrangement is made between the mortgagee and the mortgagor that the latter may do so and apply the proceeds to his own use, (whether that arrangement is shown by the face of the instrument, or is proved otherwise to be a part of the terms and conditions on which the mortgage was given,) such arrangement makes the transaction necessarily fraudulent, because it operates of necessity to Mnder, delay and defraud creditors; it secures to the debtor the use and benefit of his property and its proceeds, while it protects it from levy and sale for the payment of his debts.

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

Hoffman, J. I fully concur. I was on the point of taMng the case from the jury; but thought it so clear they could not find as they did, that it was more prudent to submit it to them and secure a verdict for defendants.


text:
    Alexander Morton, Plaintiff and Respondent, v. Isaac L. Pinckney, Defendant and Appellant.
    1. An objection taken at the trial, that a complaint does not state facts sufficient to constitute a cause of action, is not available on an appeal from the judgment, where the defect is supplied by evidence at the trial—and especially is this so, when the defect is one which should be remedied by a motion to make the complaint more definite and certain.
    2. An assignee of a lease, though the assignment to him is made for the benefit of the creditors of the assignor, if he enter into possession of the demised premises and .use them as part of the assigned estate, is liable for rent accruing during such occupancy.
    (Before Hoffman and Woodruff, J. J.)
    Heard, January 21st;
    decided, March 9th, 1861.
    Appeal by the defendant Isaac L. Pinckney, from a judgment in favor of Alexander Morton, the plaintiff. The action was tried in January, 1860, before Mr. Justice Pierrepoht, and a jury. It is brought by the plaintiff as assignee of the lessor’s interest in a lease, against the defendant as assignee of the lessee’s interest in it, to recover a part of the quarter’s rent falling due November 1st, 1857.
    The lessor is William H. Smith, and the lessee is David Rowland: the lease is “of the basement and first story of the store No. 25 Maiden lane, in the city of New York is dated October 8, 1855, and is for the term of five years from May 1st, 1856, and the annual rent is $2,500, payable quarterly, on each first of August, November, February and May. The lessor assigned his interest to the plaintiff, on the first of May, 1857. The assignment from Rowland to the defendant is dated September 10th, 1857, and assigns, “all the goods, wares and merchandise, &c., in the building and premises, No. 25 Maiden lane, together with the lease of the said premises, and the good-will of the business,” &c., in trust, for the benefit of the assignor’s creditors.

      When, the plaintiff rested, and when the evidence was closed, the defendant moved for a nonsuit, on the grounds, that the defendant is only an assignee for the benefit of creditors, that the complaint does not allege facts sufficient to constitute a cause of action, and that no cause of action was proved. The motion was denied, and defendant excepted.
    The contents of the complaint, and the evidence as to the defendant’s possession and occupancy of the premises, are sufficiently stated in the opinion of the Court..
    There was some evidence, tending to show, that Bowland, about the 21st of August, 1857, assigned the lease to one Edward H. Gouge, and that he thence owned it until about the 6th of November, and then assigned it to the plaintiff. And there was also evidence tending to show, that if the lease was, in form, assigned to Gouge, in August, 1857, the assignment of it was not intended to be delivered as an executed instrument, and that the proposed transaction fell through.
    The Judge charged, (among other things,) that the defendant ■ did not by the mere acceptance of the assignment, become liable for the rent. That the assignee has, in law, a right to go into the premises for the purpose of selling and removing the assigned goods being therein, without incurring liability, if lie acts with all reasonable promptness and leaves the premises before rent becomes due.
    That he has a reasonable time to determine whether he will accept a lease; and if after that he concludes to accept it, and does so and uses it, and acts as though it was his own, he becomes liable to pay rent.
    That if in August, 1857, Gouge had a valid assignment under which he held the lease, until after November 1st, 1857, and then assigned it to the plaintiff, that would be a defense. But if the assignment to Gouge was not executed, nor intended to be delivered as an executed instrument, but the proposed arrangement fell through, then no interest in the lease, thereby, passed to Gouge: To this part of the charge, defendant excepted.

      The jury found a verdict for the plaintiff for $361.62, the sum. claimed to be due.
    From the judgment entered on the verdict, the present appeal is taken.
    H. L. Clinton, for the appellant.

      John E. Burrill, for the respondent.
   By the Court—Hoffman, J.

The first question arises upon the complaint, and the alleged insufficiency of its allegations to show a cause of action, and the irrelevancy of the proof to such allegations. The complaint, as now shown by the judgment roll, sets forth a lease of the 8th of October, 1855, by William Smith, to David Rowland, for the basement of the store, No. 25 Maiden lane for five years from the 1st of May, 1856, at the annual rent of $2,500, payable 1st August, November, February and May; and that on the 1st of May, 1857, William Smith, the lessor, assigned and transferred such indenture of lease, and that the said plaintiff became thereupon the owner thereof. That said Rowland, subsequent to such assignment attorned to the plaintiff, and paid rent to him under such lease.

That said Rowland remained in possession of such demised premises, until the — day of-, 1857, when, by an instrument in writing, under seal, and then and there delivered to the defendant, he assigned to him the lease aforesaid; that defendant accepted the said assignment, and by virtue thereof entered into the said premises and took possession thereof, and actually used, occupied, and remained in possession of the same, thenceforth until the 6th day of November, 1857, or thereabouts.

It then avers that neither said Rowland nor the defendant have paid the sum of $312.50, being the balance for a quarter’s rent, which became payable on the 1st of November, 1857, and demands judgment therefor.

It is sufficient to say that the complaint as thus found in the judgment roll is free from the marked defects in that printed in the case. Copies were allowed to be produced on the argument. It was the duty of the appellant to have printed the roll, which he neglected; and the court is now at liberty to resort to it.

On the trial, the plaintiff read in evidence the lease from Smith to Eowland mentioned in the complaint, and the assignment by Smith to the plaintiff.

An assignment from Eowland to the defendant was also proven, dated the 10th of September, 1857, and testimony was adduced as to the defendants entering into possession of the premises under such assignment, about the time of its date.

The defects then in the complaint are merely the omission of the date of the assignment to the defendant and the time of its delivery, and of the defendants entering into possession. It may be that the complaint itself would have been, upon a reasonable construction, held sufficient;" or at least subject only to a motion to make it more definite. But whether so or not, the evidence has supplied a defect, the existence of which, and its correction by the testimony could not have surprised or injured the defendant. Bowdoin v. Colman, (6 Duer, 183,) and Bennett v. Judson, (21 N. Y. R., 24,) are sufficient authorities to warrant our treating the complaint as if amended on the trial, if any amendment was necessary.

The principal point upon the merits is, that there is no evidence to show that the defendant took possession of or used the premises in question, except for the purpose of taking possession of the goods of the assignor, and removing- them.

The evidence of possession when the plaintiff rested, was but just sufficient to go to the jury. The Judge denied a motion for a nonsuit, and then further testimony produced by the defendant, established that possession was taken by him on the 10th of September, the day of the assignment ; none of the goods were taken away, until after the 21st of September; 'and a part of them was then taken by the Sheriff under an execution. He left some of the goods. Some were removed by the defendant, three or four days before the 1st of November. Not more than three or four dollars’ worth of goods were sold. The Sheriff levied upon all the goods in the store on the said 10th of September. He took away more goods two or three weeks after the first levy, among them, two safes. This was after the 1st of November. The defendant claimed the property from the Sheriff. The witness Gouge was in the store when the defendant came to take possession; he was directed to lock up the safes, and bring the keys; that was his only direction. He gave the keys to the defendant oii the 10th of September. The defendant sued the Sheriff for the goods levied upon, .and on the trial swore that he took possession of the store and goods on the 12th of September, between 12 and 1 o’clock. In his complaint he swore that the defendant, the Sheriff, (with others,) had entered upon his premises. The property left by the Sheriff, besides the safes, was very considerable. The defendant was seen at the store every day or two.

The lease was expressly assigned in the assignment to the defendant.

The learned Judge charged, that if the jury found that the defendant accepted the lease as a part of the assigned estate, and used and occupied the premises as though they were his own, he would be liable for rent to accrue while he held the lease. But if they found that the defendant did not accept the lease as a part of the assigned estate, or claim, or use the premises as his own, but occupied them for the purpose of enabling him to take possession of, and sell and remove the property assigned to him, and that the time during which he occupied them was, under the circumstances, reasonable, then he was not liable.

No exception was taken to this part of the charge. Certainly it was as favorable to the defendant as could properly be m ade. (Martin v. Black, 9 Paige, 643 ; Young v. Peyser, 3 Bosw., 308 ; Astor v. Lent, 6 Bosw., 612.) The opinion of the Court in Lewis v. Burr, [see next case,] fully sustains the charge in the present case; and the principle that an assignee is liable for rent, if he accept an assignment of the lease and enter into possession claiming the premises under such assignment, although he be an assignee for the benefit of creditors. What has now been said, disposes of all the points of the defendant, except the third, which relates to the transaction between Rowland and Gouge. We think that the views which the judge took of this at the trial, and the mode of submitting the question arising upon it to the jury, were perfectly correct. There was evidence to justify the jury in finding that there was not an executed instrument, and that the arrangement had fallen through.

The judgment must be affirmed, with costs.

Ordered accordingly.


author:
By the Court — Bosworth, Ch. J.
      Woodruff, J.

text:
    John R. Lewis v. Melancthon Burr, Assignee of James Sharp.
    1. Where a person holding a lease for an unexpired term, assigns all his property in trust for the benefit of his- creditors, and the assignment does not disclose the existence of such lease, and it does not appear that the assignee at the time of accepting the assignment was aware that the assignor owned such a lease, the assignee does not become liable for subsequently accruing rent, by the fact that he enters on the premises for the purpose of talcing possession of the goods assigned, without any act manifesting an intent to accept of the tor-m.
    2. Where such an assignee merely entered to take an inventory of assigned property being on the demised premises, and to remove it; and completed the inventory and removed the property on the third day after the assignment was made, staying no longer than was necessary for that purpose; and never further or otherwise occupied the demised premises. Held, that he did not thereby become liable for the rent.
    3. Whether a voluntary assignee of property, in trust for the benefit of creditors, stands in the same position as an assignee in bankruptcy, or an executor or an administrator, in respect to a lease owned by the assignor at the time of the assignment queers,

    (Before Bosworth, Oh. J., and Woodruff and White, J. J.)
    Submitted, November 12, 1860;
    decided, March 9, 1861.

      This was a case submitted to the Court at General Term for its judgment, upon an agreed statement of facts made pursuant to section 372 of the Code of Procedure.
    The plaintiff, as assignee of one Ossian L. Hatch, claimed to recover a quarter’s rent of premises demised by Hatch to one James Sharp. Sharp, on the 28th of January, 1860, being insolvent, assigned all his property to the defendant, in trust for the benefit of the creditors of Sharp. The rent in question fell due February 1st, 1860. The question was whether the defendant, on the facts of the case, which are fully stated in the opinion of Bosworth, Ch. J., was liable for such rent.

      Martin & Smiths, for the plaintiff.

      Henry M. Whitehead, for the defendant.
   By the Court — Bosworth, Ch. J.

James Sharp, on the 28th of January, 1860, was the lessee of one Ossian L. Hatch, and as such lessee, held a lease of a part of the store aud basement of Ho. 26 Church street, in the city of Hew York, at an annual rent of $1,500 payable quarterly, which lease, by its terms, was for four years and nine months from May 1st, 1859.

On the 28th of January, 1860, Sharp, by a written assignment, assigned all his property, real and personal, to the defendant, in trust for the benefit of the creditors of Sharp. The assignment did not specify the lease as part of the property assigned.

The assignment was executed by the defendant, and it recites that he “ shall, and does, hereby and hereunder, take possession of all and singular ” the property thereby assigned. When the assignment was executed, there was a stock of goods on the demised premises belonging to the assignor.

It is agreed by the parties, as facts in the case, that on said 28th of January, “ the defendant, as such assignee, entered the demised premises, took possession of the stock embraced in said assignment, took an inventory thereof; and the assignor, Sharp, with the approval of the defendant, exhibited the entire stock for sale, on the demised premises, to two persons. The inventory was completed on the 30th. The defendant, on that day, at the auction room of several auctioneers, negotiated for the removal and the sale by auction, of said stock of goods, and on the 31st of January, he removed all of said stock of goods from said premises, and the defendant has not since that time, nor otherwise than as above stated, actually occupied the same.”

“ That the time taken to make said inventory, was reasonable and necessary.

“ The rent reserved in said lease, is greater than the value of the use and occupation of the demised premises.

“ The defendant has not in any manner assigned or disposed of his right, title, and interest (if any he ever acquired) in the lease.”

Is the defendant, upon these facts, liable for the quarter’s rent,- $375, falling due February 1st, 1860 ?

That rent has not been paid, and the plaintiff, as assignee of the lessor’s claim for it, seeks to recover it from the defendant.

We regard it as settled, that an assignee in bankruptcy does not, by the mere force of the assignment and his acceptance of it, become the assignee of an unexpired term of a lease which the bankrupt may own when the assignment is made, in such sense that he cannot decline to accept the term, and avoid incurring liability as assignee for subsequently accruing rent. The assignee may decline to accept of the term, and in that case will not be liable as an assignee of the lease. But if he enter into the possession of the demised premises and occupy them as such assignee, he will be liable for rent accruing during such occupation. He will not become liable by merely entering into the demised premises, for the purpose of taking possession of other property of the bankrupt and removing it. (Martin v. Black, 9 Paige, 644 ; How v. Kennett, 3 Ad. & Ellis, 659 ; Hanson v. Stephenson, 1 Barn. & Ad., 304 ; Copeland v. Stevens, id., 594.)

If a voluntary assignee of property in trust for the benefit of the creditors of the assignor, stands in the same position, then the only question will be, whether the defendant has done any acts signifying his assent or election to accept of the term.

There is no doubt that if he accepts of the term as assignee, he will be liable for rent accruing whilst he holds the estate as assignee. (Patten v. Deshon, 1 Gray, 329.)

So a mere equitable assignee of a lease, who as such, has entered into possession and occupied the demised premises, is liable for the rent accruing during such occupancy. (Jenkins v. Portman, 1 Keen, 435 ; S. C., 15 Eng. Ch. R., 455, note 2 ; Close v. Wilberforce, 1 Beav., 113.)

But may a voluntary assignee accept of the general assignment made by the assignor and reject the term? In the present case it does not appear that the assignee when he accepted of the assignment, knew that his assignor owned the lease; and the question is to be considered in view of this, as one of the facts in the case.

In Carter v. Warne, (4 Carr. & P., 191), Lord Tenterden, Ch. J., held and charged the jury, that a voluntary assignee of property in trust for the benefit of creditors, stood in the same position as an assignee in bankruptcy. This ruling is adverted to by Littledale and Pattesov, J. J., in their opinions in How v. Kennett, (supra.) But it can hardly be said that either of them expressed the opinion that it was accurate.

In Pratt v. Levan & Snyder, (1 Miles, 358), it was held that the voluntary assignee might reject the term, and that the same rules applied to him as to an assignee in bankruptcy. In that case, however, the lease was not assignable except by the written consent of the lessor, and that consent he never gave. (See Morris v. Parker et al., 1 Ashmead, 187.) The case of Carter v. Hammett, 12 Barb. S. C. R., 253, favors the same view. The N. Y. Common Pleas in Journeay v. Brackley, (1 Hilton, 447), determine the precise point in favor of the voluntary assignee. Ho case has been cited which decides to the contrary.

The cases in this Court in which the voluntary assignee has been held liable, are not in conflict with the rule for which the defendant contends.

In Young v. Peyser, (3 Bosw., 308), the assignee entered into the demised premises and took possession thereof, by virtue of the assignment, and occupied the premises until he surrendered them and the lease to the plaintiff, who accepted them. The assignee was held liable for the rent which fell due during such occupation. The same rule was applied in Astor v. Lent, (6 Bosw., 612.)

The case of Muir v. Glinsman, (argued at the January and decided at the February General Term of this Court, 1856,) and commented on in Journeay v. Brackley, supra, (1 Hilton, 455-457), is not in conflict with the decisions in the latter case, or with that made in Pratt v. Levan, [supra.)

Muir v. Glinsman did not seek to charge the assignee personally, and the judgment pronounced at Special Term, directed that the quarter’s rent which fell due Hovember 1st, 1854, should be paid by the assignee out of the proceeds of the assigned property in his hands; the complaint alleging, and the answer not denying, that Glinsman had in his hands proceeds of the assigned property sufficient to pay such rent. Muir, on the 29th of April, 1854, leased to one James Grundy the second and third floors of the premises Ho. 442 Broadway, for two years, from the 1st of May then next, at $1,950 per annum, payable quarterly. In September, 1854, Grundy being in the occupation of the demised premises, and having become insolvent, assigned all his property (in trust for the benefit of creditors) to Glinsman. The latter immediately took actual possession of the premises and of the assigned property therein ; put a clerk in possession who continued therein, making sales therein until after the 1st of Hovember, 1854, when the quarter’s rent, which that action was brought to recover, became due. The assigned property (including the lease) was mortgaged by a chattel mortgage made prior to the assignment, and in force when it was made. In the language of that case “ there was considerable of the assigned property left after satisfying the mortgage,” and part of the goods were sent from the store in Broadway to a store in Nassau street, and were returned after the mortgage was satisfied.” The goods so returned were sold on the demised premises.

The evidence justified the conclusions that the assignee entered the demised premises with intent to occupy them, and to occupy them as assignee by virtue of the assignment, and did so occupy them; and the Court thought the assignee had no ground of complaint in the fact that he was ordered to pay that quarter’s rent out of the moneys in his hands realized from the assigned estate, instead of paying it out of his own funds. (See Astor v. L’Amoreux, 4 Sand. S. C. R., 524 ; S. C., 4 Seld., 107 ; Childs v. Clark, 3 Barb. Ch. R., 52 ; Calvert v. Bradley, 16 How. U. S. R., 580.) If we are at liberty to follow the decisions made in Pratt v. Levan and Journeay v. Brackley, (supra,) there is nothing in the plaintiff’s equities which should disincline us to do so. (See opinion of Denman, Ch. J., in How v. Kennett, supra.)

Voluntary assignees of property in trust for the benefit of creditors, administer large estates ; and their appointment is a matter of almost daily occurrence; they are, by existing laws, placed on the same footing in respect to the costs of suits brought by and against them, as executors and administrators. (Code, § 317.)

They may maintain actions for the benefit of creditor^, to reach property which their assignor had disposed of, with intent to defraud. (Laws of 1858, p. 506, ch. 314.)

The same considerations of public policy which permits an assignee in bankruptcy, a receiver or executor, to reject a term which would be a charge instead of a benefit to the estate he is appointed to administer, would seem to favor its application to a voluntary assignee for the benefit of creditors.

The recent legislation in this State, already referred to, seems to have its origin in the same views.

We think, therefore, that the defendant’s liability in this case depends upon the question, whether he entered under such circumstances as manifest his assent to accept the term.

The case concedes that the rent reserved is more than the value of the demised premises. It was, therefore, the duty of the assignee to waive the term, if he had the right to do so.

He was not in possession when the rent in question accrued; he has not paid any rent to the plaintiff. The assignment does not import that the assignor had any such property as the lease in question, nor does it appear that the assignor knew that he had. Had it appeared that the assignee knew when he accepted of the assignment, that the assignee owned this unexpired term, what effect should be given to that fact, it is unnecessary now to consider.

The case does not state that the assignee took possession <rf the demised premises.

It states that he entered them and “ took possession of the stock,” &c. And as it also states that he did not occupy the premises otherwise than to make an inventory of the goods and remove them, and stayed no longer than was necessary for that purpose, all having been concluded on the third day after the assignment was executed, we are of the opinion upon the facts as the parties have stated them, that his entry was solely for the purpose of possessing himself of his stock, and without any intent to accept of the term.

That he did nothiiig which could have led the plaintiff to suppose that he entered upon the premises with a view to take possession of them as assignee, even if the plaintiff knew, before the goods had' been removed, that any assignment had been made.

These views entitle the defendant to judgment.

Woodruff, J.

I concur in the conclusion at which the Chief Justice has arrived, hut upon the distinct ground that there is not evidence to warrant the conclusion of fact that the defendants ever knowingly accepted an assignment of the lease of the premises in question.

No man can be made assignee of a lease and subjected to liability upon its covenants, without his consent.

I am not prepared to say that one who voluntarily accepts an assignment of the property of a lessee is protected from liability because a trust is annexed to his title requiring him to apply that property to the benefit of the creditors of such lessee. In my opinion, the existence of such a trust, (though in some cases it may aid in determining whether he accepts the lease as part of the assigned property,) does not at all affect his liability, if upon the facts shown he would be liable were there no trust. The cases of executors and administrators and assignees in bankruptcy, who discharge duties imposed upon them by law as incident to their semi-official position, are, I admit, in some degree peculiar, the latter not being bound to enter upon the demised premises, and the former being at liberty to do so, and on applying rents collected to the rent reserved by the lessor, being entitled to protection against personal liability, (Toller on Executors, 280 ; 1 Salk., 297, 317 ; 1 Saund., 1, note 1 ; 2 Williams on Executors, 1078, 1079, and notes): or otherwise, if he occupy himself. (Wigley v. Ashton, 3 B. & A., 101.)

But the acceptance of an assignment made by a lessee for the benefit of creditors, is just as voluntary as if made for one’s own benefit, and there is no hardship in imposing upon each the same consequences ; nor, in my judgment, is there any rule of law which, as between the lessor and the voluntary assignee, makes the use or trust upon which he holds affect the legal rights of either. If, therefore, an assignee accepts an assignment purporting in terms to transfer a lease, so that he is fairly chargeable with notice of its provisions, and he accepts the assignment without excluding the lease, or if under a general assignment, he, with knowledge of the terms of the lease, enters into possession with intent to occupy under the lease, in my opinion he becomes liable.

• I admit, that in either case he may protect himself; in the former, by refusing to accept the assignment of the lease; in the latter, by refusing to occupy under it, doing nothing more than remove the assigned goods from the premises.

Had it appeared in the case before us that the defendant, when he accepted the assignment and went into possession, was aware of the lease, and he did no affirmative act qualifying the possession he took, so that the inference of fact was just that he was in possession under the lease, and claiming to be rightfully in possession by virtue of the assignment thereof, I should be of opinion that he was liable to the landlord until he relieved himself by a further assignment, although his actual occupation was but for three days, and notwithstanding his title was qualified by a trust for the benefit of creditors. In my opinion this is in conformity with the well settled general rule, and none of the cases warrant the making of such a case an exception.

White, J., was of opinion that the defendant was entitled to judgment.

Judgment ordered for the defendant.


author: By the Court—Woodruff, J.

text:
    The American Exchange Fire Insurance Company, Plaintiffs, v. Britton et al., Defendants.
    1. Money exacted by and paid to public officers, under a claim of right for their services as such, if they be not entitled thereto, is illegally exacted and may be recovered back.
    2. It may be recovered back, though paid after the services are rendered ; and under a threat, if not paid, of doing an injury to those of -whom it is exacted, which they had not necessarily the power to effect.

      3. Persons appointed by the comptroller of the state to perform the duties required by section 10 of the act of 1853, (chap. 466, p. 908,) are public officers, within this rule.
    4. If such persons are entitled to more compensation than can be paid by the sums which section 27 of that statute requires every association or company therein mentioned to pay towards defraying the expenses of executing said act, their claim is against the state, and not against the association or company.
    (Before Hoffman and Woodruff, J. J.)
    Heard, January 15;
    decided, March 23, 1861.
    Exceptions ordered at the trial to be heard in the first instance at the General Term.
    The American Exchange Fire Insurance Company is the plaintiff, and Dexter B. Britton, Eoyal Chamberlain and John Eaymond, are the defendants.
    The action was tried October 16,1860, before Chief Justice Boswobth and a jury.
    It appeared at the trial that in February, 1859, the defendants were appointed by the comptroller of the State of Eew York to make the preliminary examination of the assets of the plaintiffs required by chapter 466, section 10 of the act of 1853, relative to the incorporation of fire insurance companies.
    About the 25th of February, 1859, the defendants Brit-ton and Raymond accordingly called at the company’s office," made such examination, gave the certificate required by the said section, which was afterwards signed by the other defendant, Chamberlain; and on the next morning presented their bill to the plaintiffs for .$300, for such alleged service.
    The plaintiffs declined to pay the bill; whereupon the defendants notified the plaintiffs that unless the latter paid it, they would telegraph to the comptroller, at Albany, and “stop their license; that they would telegraph the comptroller and stop the passing of the papers.”
    The plaintiffs, after consultation, paid the $300, under protest, by a check for that sum, payable to the order of all the defendants. This suit is brought to recover back the sum so paid.
    At the commencement of the trial, the defendants moved a dismissal of the complaint, on the ground that it did not state a cause of action, and when the plaintiffs rested, on the ground that no cause of action had been proved. Both motions were denied, and the defendants excepted.
    When the testimony was closed, the Court directed a verdict for the plaintiffs, for $300, and the defendants excepted.
    A verdict having been rendered for the plaintiffs, the Justice ordered the questions of law arising at the trial, to be first heard at. the General Term, and the entry of judgment suspended.

      L. S. Chatfield, for defendants.
    I. The Act of 1853 has no provision for compensating the commissioners appointed by the comptroller, under section 10 thereof. Their compensation is matter of agreement, and in the absence of that they are entitled to a quantum meruit. (Laws of 1853, § 10, p. 908 ; id., p. 920, as to fees chargeable.)
    II. The payment of $300 was voluntary on a claim of right, and the money cannot be recovered back. (Mowatt v. Wright, 1 Wend., 355 ; Clarke v. Dutcher, 9 Cow., 674 ; Waite v. Leggatt, 8 id., 195 ; Sprague v. Birdsall, 2 id., 419 ; Hall v. Shultz, 4 J. R., 240.)
    III. The threat to stop the papers, (if really made,) was an idle one, without the power of execution, and defendants knew this.
    IV. The protest did not make the payment involuntary; it is of no effect on the relations or liabilities of the parties. (2 Cow., 419 ; 1 Day, 183 ; 1 Wend., 363, 364 ; 5 Taunt., 155.)
    V. The simple question is, can money be recovered back which has been paid voluntarily on a claim of right, without mistake, fraud, or compulsion ? That it cannot be, is settled by the cases cited, (supra,) and by 10 S. & R., 219 ; 6 id., 309 ; 1 Dal., 148 ; 2 id., 154 ; 1 Har. & Gil., 258 ; 7 Mass., 288 ; 10 Pet., 137 ; 9 Greenl., 110.

      John S. Jenness, for plaintiff.
    I. The defendants, in making- the preliminary examination into the assets of the plaintiff, required by section 10 of the act of 1853, acted as public officers, with no private relations whatever. (4 Jac. L. D., 433 ; King v. Burnell, Carth., 479.)
    H. Being and acting as such, they were disabled from exacting any fees, except those prescribed for the service, by express statute. (Bill of Rights, 1 R. S., 92 ; 2 R. S., 650, §§ 2-5 ; Laws of 1853, chap. 466, § 27 ; Stamper v. The State, 11 Geo. R., 643 ; Steele v. Williams, 20 Eng. L. and Eq. R., 319 ; Seastrunk v. Rice, 1 Cheves’ R., 71 ; Taggart v. Hutson, 1 Rice, 300.)
    III. The payment of illegal fees cannot be considered voluntary, so as to preclude their being recovered back. (Morgan Palmer, 2 B. & C., 729, and 4 D. & R., 292 ; Dew v. Parsons, 2 B. & Ald., 562, and 1 Chitty R., 305 ; Steele v. Williams, 20 Eng. L. and Eq. R., 319 ; Frye v. Lockwood, 4 Cow., 454.)
   By the Court—Woodruff, J.

The tenth section of the act under which the plaintiffs are organized as a corporation (Session Laws of 1853, ch. 466, § 10, p. 908,) makes it the unqualified duty of the Comptroller (on receiving the certificate of the Attorney-General) to cause an examination to be made, either by himself or by three disinterested persons specially appointed by him for that purpose, for the purpose of certifying to the fact that the capital is paid .in, &c. This duty is so unqualified and so plainly imposed on the Comptroller, that it is the right of the applicants to have it performed when they present a case within the statute, and require such performance. Section 27 of the act prescribes the payment of twenty dollars by any association proposing to organize a new company under the act; it is to be paid nominally for filing the declaration required by the third section, and for nothing else, (in the case oí a new company,) but it is “ to be appropriated towards paying the expenses of executing said act.” The fair construction of which language is that it shall cover all the services and labor required to be performed by the Comptroller, under the act and the expenses incurred therein.

It could hardly be claimed that if the Comptroller caused “ an examination to be made ~by himself ” he could lawfully require the payment of any further sum for fees, expenses or otherwise; as to him, the provisions of title 4 of chapter 4 of part 3, section 2 of the Rev. Stats., giving to public officers the fees for any service, which are provided in the statute requiring the service, or providing the compensation therefor; and the provisions of section 5 of the same title, which where any fee or compensation is allowed by law to any officer or person for any service, forbids his taking or receiving any other or greater fee or reward for such service, seem directly applicable. (2 R. S., p. 650, §§ 2,5.)

It is required of the Comptroller that he cause the examination to be made, and a fund is provided which is to be appropriated towards paying the expenses of executing the act.

A most natural inference is that if the Comptroller’s duties for the time being are so engrossing that it is necessary to employ disinterested persons to make the examination, the expenses of that examination shall be defrayed out of the twenty dollars, or at all events, that the association shall not be required to pay anything more. The associates are entitled to have the examination made when they have complied with the provisions of the. act, paying the twenty dollars and producing to the Comptroller the proper certificate of the Attorney General. If the State has imposed upon the Comptroller official duties which he cannot perform in person, but may perform by appointing others, and which, by law, he must perform, he has doubtless the incidental power to make to his appointees a just compensation, out of the fees appropriated to that purpose, and perhaps, if they are not sufficient, then to create a just charge against the State, but it is difficult, I think, to find any warrant for requiring the association to pay anything. more than the act prescribes.

If this be so, it follows that the defendants could not lawfully require the plaintiff to malee any payment for an examination which it was the duty of the Comptroller to cause to be made, either by himself or by his appointees, and for which he could legally require no other conditions than compliance with the statute.

In this view of the subject, it seems to me quite clear that if the Comptroller had required the plaintiff to make the payment which was made, his act would have been wholly illegal. I am not able to perceive that such a requirement by his appointees is any less so. They represent the Comptroller, in making the examination, he causes the examination to be made, by himself or by them, as he may see fit, they derive all their authority from his appointment, they act in his stead, and they make their return to him as the basis of his further action.

Being paid, can the money, though illegally exacted, be recovered back ?

There is nothing, in my opinion, in the claim that it was •obtained by duress, in the ordinary sense in which that expression is used. The examination was completed. The defendants had signed and delivered to the plaintiff the certificate, upon the delivery of which, to the Comptroller, it became his duty to deliver a certified copy of the charter, on filing which the association had a right to commence business.

On the other hand the payment was not, in my judgment, a voluntary payment, in the sense in which that term is used, when it is said that money voluntarily paid cannot be recovered back. It was a payment exacted by these defendants, who were acting for and in the place of the Comptroller, in a matter of great importance to the plaintiff, and exacted by a claim of right, as officers, and while they had, or assumed to have, some control over the subject. There is testimony to the effect that they threatened to'telegraph to the Comptroller to stop the issuing of what the witness calls the license, which can only mean the certified copy of the charter, on filing which they were authorized to commence business. If there was doubt on this question of fact, and this is material, it should have been submitted to the jury. How, this was an assumption of official control over the subject, and the avowal of a purpose to exercise it, unless the fees demanded were paid; it is not necessary to regard this as obtaining money per minas in the ordinary sense; it may have been a declaration which they had no actual power to carry into execution. The Comptroller had not the right, and we cannot admit that he would have had the disposition to detain the papers for a moment, upon that ground, after he fully understood thesubject. But it was nevertheless an exaction made without right, under color of official control in the matter, with which the plaintiffs were not bound to contend, at the hazard of the consequences of a telegraphic dispatch forwarded by the Comptroller’s own appointees, which might and probably would reach him before the plaintiff’s messenger could reach Albany and obtain the papers which the plaintiffs required. It may well be assumed that some delay for the purpose of further inquiry and investigation would have been caused by such a communication to the Comptroller. Although the defendants had no legal power to interfere further, and although the plaintiffs would have had legal redress, and might probably have compelled the Comptroller to give them the required certified copy of their charter ; still they were not bound to take the hazards of delay and the risk of having to litigate the question, and treat the requirements and threats of these appointees of the Comptroller as idle words. They might, as they did, pay the money exacted, and when the pressure under which they paid was removed, submit the right to determination, as they have done, by reclaiming the money as an illegal exaction; as money obtained by the defendants, without consideration, and which,.in justice and equity, they may'not retain. Persons dealing with public officers and their deputies and agents do not stand with them mpon equal ground. In such cases I concur with the views of Martin, B., in Steele v. Williams (20 Law and Eq. R., 319 ; 8 Exch. R., 625,) that the payment is not voluntary. In that case the payment was not made until all the services had been rendered, and if the payment had been refused the party could not have been deprived of the benefit of the services. And to the like effect is Dew v. Parsons, (2 Barn. & Ald., 562,) and see Morgan v. Palmer, (2 Barn. & Cres., 729.) The general doctrine that where an officer exacts higher fees than he is entitled to by law, they may be recovered back, is found in Frye v. Lockwood, (4 Cow., 454 ;) Walker v. Ham. (2 N. Hamp. R., 39,) and I am by no means willing to say that the right to recover back depends on the question whether the payment was before or after the service was rendered. It should be deemed sufficient that the officer takes advantage of his official position to make the exaction; due protection of those whose necessities require them to deal with persons exercising official powers, or discharging duties in their nature official, requires that moneys so paid should be subject to reclamation.

In Britton et al. v. Frink, the facts were these: The agent of the defendant in a suit, called upon the plaintiffs’ attorney and offered to pay the amount of debt and costs. They agreed upon the amount of the debt, and the attorney made out his bill of costs, which the agent paid; the bill of costs contained some charges to which the attorney was not legally entitled. It was held in the Supreme Court and in the Court of Appeals that the money so overpaid might be recovered back. It was argued that there was no mistake of fact, and that the payment was voluntary. But the argument did not avail. It was an illegal exaction by an officer of the Court, against which parties are entitled to protection. (See the case reported, 3 How. Pr. R., 103.)

These views dispose me to order judgment for the plaintiffs in this ease upon the verdict, without enlarging upon the danger of exposing persons appointed by the Comptroller to make an examination so important to the public safety, to the temptation which might be brought to bear upon them in the discharge of their duty, if, on the one hand they could require the proposed corporation to pay any sum they saw fit, under color of charge, for fees however large; or if, on the other hand, it be permitted them to receive any compensation (beyond their just claim upon the Comptroller or the State,) from those whose affairs they are appointed to scrutinize 'for the public protection.

It may be that persons so situated might yield to the desire of the corporation, to make them some additional compensation where their services had been protracted and arduous, and accept a gratuity therefor. (Vide, language of Martin, B., 20 Eng. Law and Eq., 324.) But even that under the peculiarly confidential position which they hold, as the guardians of the public, to protect the public against unsound and merely adventuring associations claiming chartered privileges, would expose them to suspicion and be liable to many of the severe criticisms found in the opinions in Hatch v. Mann. (15 Wend., 44.)

The suggestion that the action should have been brought against each of the defendants severally for $100, is answered, I think, by the fact that the money was paid to them jointly by a check drawn payable to their joint order and by them jointly indorsed. This, I think, imposed upon them a joint responsibility, and the plaintiff was not bound to regard the manner in which they divided the fees among themselves.

These considerations lead me to say the plaintiffs should have judgment upon the verdict.

Judgment for the plaintiffs accordingly.


author: By the Court—White, J.

text:
    Shaw et al., Plaintiffs and Appellants, v. Stine et al., Defendants and Respondents.
    1. In an action to recover damages for inducing the plaintiffs, by false and fraudulent representations, to sell and deliver goods to a third person, it is not essential to a right of action that the misrepresentations were the sole inducement to the sale.
    2. It is enough that the plaintiffs would not have parted with their goods, if the false representations had not been made.
    3. Where the defendants, in addition to making the alleged misrepresentations, offered and agreed to indorse the purchaser’s note to be given for the goods, it is error to refuse to charge that, if the misrepresentations in any degree contributed to induce the plaintiffs to sell the goods, they are entitled to recover, when the evidence warrants-a finding that the plaintiffs were so induced.
    4. Whether, in such a case, it is competent for a plaintiff to testify, as evidence in chief, that he sold and delivered the goods, relying on the truth of the alleged misrepresentations, quaere.

    (Before Bosworth, Oh. J., and Woodruff and White, J. J.)
    Heard, November 12, 1860;
    decided, April 20, 1861.
    Appeal by the plaintiffs, Prosper P. Shaw, William. H. Shaw, William W. Bicharás aná William H. King, from an oráer áenying a motion for a new trial. The defendants are Lewis Stine aná Sigismuná B. Menáel, aná on a trial before Mr. Justice Piebbepont aná a jury, June 6, 1859,- obtaineá a veráict.
    The action is by the plaintiffs to recover the amount of a bill of gooás solá by them, in July, 1857, to Oohen & Menáel, of Cincinnati, Ohio, by reason of allegeá false and fraudulent representations made my the defendants as to the credit and responsibility of Oohen & Mendel.
    The plaintiffs gave evidence of the alleged misrepresentations by the defendants. William H. Shaw, one of the plaintiffs, testified that, after the representations were* made, he told the defendant S. B. Mendel, that he was not satisfied, and the defendants then offered and agreed to indorse Oohen & Mendel’s note, on being paid 24 per cent therefor. The goods were delivered, but Oohen & Mendel’s note given therefor was not paid, nor indorsed by the defendants.
    The plaintiff, Shaw, was asked by his counsel this question, viz.:
    Did you or not sell and deliver the goods on the faith of the representations and statements of the defendant, Mendel, respecting the pecuniary condition and responsibility of Cohen and Mendel ?
    The defendants’ counsel objected to the question, but said it was not on the ground of form, but because the question called for the opinion of the witness; and also upon the ground that the witness had shown by his testimony that he had not sold the goods on the faith of the representations of the defendant Mendel.
    The Court overruled the question, and plaintiffs’ counsel excepted.
    When the plaintiffs rested, the defendants’ counsel moved to dismiss the complaint on the following grounds:
    1st. That the testimony of the plaintiffs showed that the plaintiffs were not induced to sell and deliver the goods to Cohen & Mendel solely by the representations of the defendant Mendel.
    2d. That the testimony showed that the goods were sold to Cohen & Mendel, on the faith of the indorsement of Stine and Mendel, and not on the representation of defendant Mendel.
    The Court denied the motion, stating that the questions submitted were proper questions for the decision of the
    jury- .*
    And the defendants’ counsel excepted.
    The Court charged the jury that if the plaintiffs, in selling the goods, relied upon the indorsement of the defendants, and not upon the representations, the verdict ought to be for the defendants. That if the goods were sold on the faith of the representations of the defendants, then they should find for the plaintiffs. To this charge the plaintiffs’ counsel excepted.

      . Plaintiffs’ counsel requested the Court to charge—
    That if the representations made by the defendants in any degree contributed to induce the plaintiffs to sell the goods, and such representations were false, the plaintiffs were entitled to recover.
    The Judge declined so to do, or to charge otherwise than as he had charged. And plaintiffs’ counsel excepted. The jury found for the defendants.
    The plaintiffs moved for new trial, and from the order denying that motion the present appeal is taken.

      John E. Burrill, for appellants.

      A. Boardman, for respondents.
   By the Court—White, J.

In an action like the present, in order to entitle the plaintiff to recover, it is not necessary that the fraudulent representations complained of should be the sole consideration or inducement moving the plaintiff to make the sale which deprived him of his property. If the representations contributed to the formation. of the conclusion in his mind to sell, that is enough, although there may have been other inducements operating at the same time, and aiding in leading him to that determination. (Addington v. Allen, 11 Wend., 381.)

A true test in such cases may be found in the inquiry, whether the plaintiff would have sold the goods if the false representations had not been made? If he would, then the false representations did not contribute to the sale, for he would have made the sale without them. But if he would not have sold them without the representations, then they contributed to the sale; and the party making them is responsible for the damage which the plaintiff suffered, notwithstanding that other equally powerful motives may have influenced his mind at the same time in the same direction, and without the existence of which he would not have come to the conclusion to sell.

It is plain that each one of several concurring considertions or motives may be so necessary to induce the performance of an act, that, in the absence of any one of them the act would not be done; and when they are all thus necessary, and all concur, each one of them must be deemed to have aided in producing the act and its consequences. In the case before us, the two things—the representations made by the defendant respecting the responsibility of Cohen & Mendel, and the supposed security furnished by the indorsement of Stine & Mendel—may have both been necesswy to the conclusion to which the plaintiffs finally came, to sell the goods to the Cincinnati firm. Neither, separately, might have been a sufficiently powerful inducement, while both, united, would be.

The charge of the Court, as presented in the case, may, therefore, be open to the criticism, that it might be construed as containing an intimation to the jury, that the plaintiffs could not recover unless they sold the goods to Cohen & Mendel, solely upon the faith of the representations made by the defendant; and that they (the jury) were to determine between the two inducements—the indorsement and the representations, and were to say by their verdict upon which one of them it was that the plaintiffs parted with their property. A charge liable to such a construction would impliedly take away from the jury, or, at least, would not present to them, as under the circumstances it should have presented to them, the consideration of the probable or possible fact, that the plaintiffs were led to make the sale by both inducements, although they could not have been brought to make it upon either one alone, and that in that case the plaintiffs could recover for the damages sustained by them as certainly as if the sale were made upon the fraudulent representations solely. .

It is proper, therefore, on this ground, that a new trial should be ordered. And, indeed, it might have been properly submitted to the jury as a question, under the testimony in the case respecting the defendants, insolvency, whether their suggestion or tender of their indorsement to the plaintiffs, was anything more than an act done in furtherance of the unjust design against the plaintiffs^ which they are charged with having fraudulently abetted.

Bespecting the question proposed to the plaintiff, Shaw, when testifying, and which was objected to, we think the court decided correctly in excluding it. The question required the witness to declare to the jury what the private operations of his mind were at the time of the sale. It is true that the discovery of these, to a certain extent, is necessarily involved in the investigation and decision of the issues jiresented in the case; but the knowledge of them must be gathered, not from allegations which the witness may now make as to what his mental emotions or purposes then Avere, but from the attending circumstances of the occasion; from the acts and declarations of the parties at the time. This rule is recognized in the decision of the Court of Appeals in the case of The People v. Saxton, (22 N. Y. R., 309.)

Upon the exceptions, however, which were taken to the charge of the Judge, and to the refusal to charge as requested, a new trial must be ordered, with costs to abide the event.

Bosworth, Ch. J., and Woodruff, J., concurred in granting a neAV trial on the ground of error in the charge and refusal to charge, and in the reasons assigned therefor, in the foregoing opinion.

Ordered accordingly.