text:
    Laura B. McGuire, Respondent, v. Richard D. Richards, Appellant.

      Agreement to pay over the amount realized by the sale of real estate, over a certain sum — - effect of selling for other real estate instead of money.

    The defendant conveyed to the plaintiff a house and lot for the consideration of $9,000, which the plaintiff paid by giving the defendant §5,000 and conveying to him a house and lot designated as the Greenwood avenue property; simultaneously with these conveyances, the defendant executed and delivered to the plaintiff an agreement which provided that if upon the sale of the Greenwood avenue property the defendant realized more than $4,000, after deducting such repairs as he should put upon it, he would pay such surplus to the plaintiff. The defendant thereafter conveyed the Greenwood avenue property to a third party for the sum of §2,725 and a house and lot which the third party claimed was worth §2,000 The defendant, before thus conveying the Greenwood avenue property, expended on it §239.72 for repairs After this transaction, the plaintiff, insisting that the defendant had, in effect, sold the Greenwood avenue property for §4,725, claimed the excess over §4,000, after deducting the §239.72, namely $485.28, and, on the defendant’s refusal to pay over that sum, brought an action against him therefor, in which 'the plaintiff recovered judgment for the amount claimed. While this action was pending, the defendant sold the house and lot, received from the third party, for §1,425,

      Held, that the defendant was not authorized by his contract with the plaintiff to dispose of the Greenwood avenue property except for cash, and that when he conveyed it and took in part payment therefor another house and lot, without the plaintiff’s knowledge or consent, he became liable to account to the plaintiff for the amount at which he agreed to receive such house and lot in the exchange;
    That he was estopped from claiming that the transaction did not amount to a sale;
    That he was required to account to the plaintiff for the proceeds of the sale in money, and, hence, that the plaintiff’s judgment should be affirmed.
    Appeal by tbe defendant, Richard D. Richards, from a judgment of the County Court of Monroe county, entered in the office of the clerk of that county* on the 21st day of December, 1892, upon a verdict in favor of the plaintiff and from an order of that court denying the defendant’s motion for a new trial made upon the judge’s minutes.
    The action was commenced in the Municipal Court of the city of Rochester, and the plaintiff having recovered a judgment in that court, the defendant appealed to the County Court, where a new trial was had.

      J. A. Stull, for the appellant.

      Walter S. Hubbell, for the respondent.
   Lewis, J.:

On the 1st day of June, 1892, the defendant conveyed to the plaintiff a house and lot situate on Harvard street in the city of Rochester for the consideration of $9,000. Plaintiff paid for the house and lot by conveying to the defendant a house and lot upon Greenwood avenue in the city of Rochester, and in addition thereto, paid the sum of $5,000. Simultaneously with the execution and delivery of said deeds, the defendant executed and delivered to the plaintiff his written agreement reciting that, whereas the defendant had sold to the plaintiff said house and lot for $9,000, and whereas the plaintiff had conveyed to Richards the Greenwood house and premises situate in the city of Rochester, the same making $1,000 of the purchase price of the house conveyed to the plaintiff, Richards agrees that if upon the sale of the Greenwood avenue property he shall realize a sum in excess of $1,000, after deducting such repairs as he shall put upon the premises, and the necessary expenses of the sale, that in that event he will pay such surplus to-the plaintiff on demand. The defendant thereafter entered into-negotiations with a Mrs. Fowler, and tried in good faith to sell her the Greenwood avenue property. His asking price was $5,000 cash. Mrs. Fowler refused to pay that for the property, and made it a condition of her purchasing the property that the defendant should take in part payment therefor a house and lot which she owned in the city of Rochester, upon Gregory street, and which she claimed was worth $2,000. The negotiations between the parties continued for a considerable time. The defendant offered to sell Mrs., Fowler the Greenwood avenue house and lot for her house and lot, and the sum of $3,500 in money. Mrs. Fowler offered to give her house and' lot and the sum of $2,500 for the Greenwood avenue lot. They finally came to the agreement that the defendant would convey his house and lot to Mrs. Fowler for her lot and the sum of $2,725, and the trade was closed upon these terms. There was evidence tending to show that during the negotiations the plaintiff was informed thereof, and that the defendant was thinking of taking a house and lot in part payment for the premises ; but the particulars were not communicated to the plaintiff, and the trade was finally made without her knowledge or consent. The defendant expended upon the Greenwood avenue property, before conveying to Mrs. Eowler, in the way of repairs and commissions, the sum of .$239.72, and after making the trade he made a statement to the plaintiff of the particulars thereof, and the plaintiff thereupon insisted that the defendant had sold the property, and had received therefor the sum of $4,725, and claimed that after deducting therefrom the $239.72 there was due her $485.28, and demanded payment of that sum, which was refused; and she thereupon brought this action. "While it was pending, and before judgment, the defendant sold and conveyed the Gregory street lot for the sum of $1,425 cash. The plaintiff recovered judgment against the defendant for damages, $498, together with costs. The defendant was willing to sell the Greenwood avenue property for a less sum than he offered it to Mrs. Fowler, if he could not get his asking price of $5,000. Mrs. Fowler had purchased the Gregory street property but two or three days before the negotiations with the defendant commenced, .and had paid therefor the sum of $2,000, and during all the negotiations insisted as a condition of the trade that the defendant should take it at that price. ; and there was evidence tending to show that it was accounted and taken at that figure by the defendant, although he did claim and stated to the agent who effected the sale, that he did not consider it worth $2,000. The agent replied the important question was the amount he should receive in money as the difference between the two places, and not what Mrs. Fowler thought her place worth.

The written contract secured to the plaintiff a contingent, equitable interest in the Greenwood avenue property, and while the defendant did not by the terms of the contract expressly agree that he would sell the property, the parties obviously by their agreement contemplated that the property was to be sold by the defendant. The plaintiff could not in any other way realize anything from the property. "Whether the defendant could have refused to sell the property without a violation of his agreement is not necessary for us to decide, for he did not do so. Having disposed of the property, his contract required that he should do so by a sale for cash unless the plaintiff consented to have it disposed of in some other manner. The time when the sale should occur, and the price at which it should be sold, were left in the discretion of the defendant. It was his duty, however, to sell it, and for the best price' he could obtain for it; and if the amount received exceeded $4,000, and the cost of repairs and the expenses of the sale, the plaintiff was entitled to the surplus. He was not authorized by the contract to exchange it for other property. If it was to be disposed of in that manner the plaintiff was entitled to be consulted about the sale, and had the right to exercise her own judgment as to the value of any property which it was proposed to take in exchange for it, and the price at which it should be taken, and generally as to the advisability of exchanging it for other property at all. She was willing to trust to the judgment of the defendant to sell the premises for money, but did not consent to abide by his judgment as to the value or salability of other real estate taken in exchange for it; and when the defendant conveyed the Greenwood avenue premises and took in part payment the Gregory street lot without plaintiff’s knowledge or consent, he became liable to account to the plaintiff for the amount at which he agreed to receive it in exchange for the Greenwood avenue lot. Whether defendant did before making the sale inform the plaintiff of the conditions of the sale and obtain her consent to the terms of the exchange, and whether he took the Gregory street property at the agreed price of $2,000, are questions which were properly submitted to the jury, and they upon evidence sustaining their verdict found both questions in favor of the plaintiff. It is the contention of the defendant that the transaction amounted simply to an exchange of properties and not to a sale of the Greenwood property, and he refers to the definition of the word sale ” in the Century Dictionary and Bouvier’s Law Dictionary. Whether these authorities sustain the defendant’s contention may well be doubted; but we do not deem it important to decide the question, for we think the defendant should be held to be estopped from questioning that the transaction amounted to a sale. He assmned to convey the title to the Greenwood avenue property to Mrs. Fowler, and must account for the proceeds of the sale in money. If our views of the question presented by this appeal as stated are correct, it follows that the trial court properly disposed of the various requests to charge made by defendant’s counsel.

The judgment and. order appealed from should be affirmed.

Dwight, P. L, Macomber and Haight, JJ., concurred.

Judgment and order of the County Court of Monroe county appealed from affirmed, with costs.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    William C. Fitch, Respondent, v. Volker & Felthousen Manufacturing Company, Appellant.

      Attorney and client — action to recover for services and disbursements — compulsory • reference

    When an action brought by an attorney to recover for services rendered and disbursements made is based upon one cause of action only, arising out of a contract of employment to collect a single claim, and the service was essentially single, and the main question to be litigated is as to the amount and value of his services, he cannot, by dividing his iabor into periods of day’s work and charging accordingly, convert his claim into a long account, within the meaning of section 1018 of the Code of Civil Procedure, and obtain a compulsory reference on that ground
    Appeal by the defendant, the Yolker & Felthousen Manufacturing Company, from an order of the Supreme Court, made at Special Term, and entered in the office of the clerk of Erie county on the 9th day of March, 1893, on the motion of the plaintiff, referring the action to a referee to hear, try and determine the same.

      Edward O. Ecmdall, for the appellant.

      William O. Fitch, in person, respondent.
   Lewis, J.:

The cause of action stated in the complaint is for services rendered and for disbursements made by plaintiff as an attorney at the request of the defendant to the amount and value of $1,000.

Payment of $286.46 o.n account thereof is admitted, and judgment is demanded for the balance.

The defendant’s answer admits that plaintiff performed services and paid money as attorney for the defendant, but denies that they, were of the amount and value of $1,000.

In response to a demand therefor the plaintiff served a bill of particulars which contains fifty-six items, forty-nine of which are for services and the balance for disbursements.

It is apparent from-a perusal of the bill of particulars, that the services and disbursements mentioned therein were all rendered and made in one action.

The action was originally commenced in the Municipal Court of Buffalo, was tried in that court, an appeal was taken to the Superior Court of Buffalo, was there tried and thereafter an appeal was taken to the General Term of that court.

The plaintiff adopted the plan of keeping an itemized book account of his services and disbursements in the action.

The first charge is for a-retaining fee, and then follows charges for bringing the action and for services from time to time rendered in the action; for perfecting an appeal, there are five separate charges for preparing amendments to a proposed case and for services on the settlement thereof.

There is but one cause of action arising out of the contract, to wit: The agreement to collect a claim against one Duero.

The service rendered by plaintiff was essentially single though it required different day’s work to complete it. (Bathgate v. Haskin, 59 N. Y. 533.)

The main question litigated upon the trial will be as to the amount and value of plaintiff’s services.

He cannot by dividing his labor into periods convert his claim into a long account within the meaning of section 1013 of the Code of Civil Procedure.

The cases of Randall v. Shermam, (137 N. Y. 669) and Spence v. Simis (137 id. 616), are decisive of the question presented by this appeal.

The latter case was brought to recover for a lawyer’s services and disbursements in four different actions.

The account contained 125 items and yet the court held that it was not a case for a compulsory reference; that it was not a long account within the meaning of the term as it is used in the law, and as it has been construed and defined in the practice of the courts.

The order appealed from should be reversed, with ten dollars costs and disbursements.

Hai&ht and Bradley, JJ., concurred. .

Order appealed from reversed, with ten dollars costs and disbursements.


author: Macomber, J.:

text:
    Frank Griffin, Plaintiff, v. Barbara Griffin, Defendant.

      Divorce — adultery—counterclaim.
    When, in an action for divorce on the ground of adultery, the defendant alleges, by way of counterclaim, adultery on the part of the plaintiff, and proves it, it is error for the referee by whom the case is tried, to say nothing in his report in regard to the testimony on that question, and to direct judgment for the plaintiff, upon findings establishing the guilt of the defendant
    Such a judgment is in violation of paragraph 4 of section 1758 of the Code of Civil Procedure, which provides that a plaintiff is not entitled to a divorce, although adultery is established, “where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce.”
    Submission, by stipulation, of tbe question of tbe error of tbe referee in not finding, in bis report, as to tbe adultery of tbe plaintiff, under tbe pleadings in tbe action, and tbe evidence introduced at tbe bearing.
    Tbe action was brought for divorce, on a complaint alleging tbe commission of adultery by tbe defendant. Tbe defendant answered, denying tbe allegation of tbe complaint as to adultery, and alleging, by way of counterclaim, acts of adultery on tbe part of tbe plaintiff. No reply was served, but tbe action having been referred, tbe plaintiff moved, before tbe referee, to be allowed to serve a reply. Tbe referee refused tbe application, on the grounds that tbe time in which such a reply was required to be served bad long passed, and that be bad no power to grant tbe order asked.
    Evidence was given by each party before tbe referee, tending to prove the commission of adultery by tbe other. Tbe referee made a report, finding, as facts, tbe commission of acts of adultery by tbe defendant, making no reference to the testimony as to tbe commission of acts of adultery by tbe plaintiff, and finding, as conclusions of law, that a divorce should be decreed in favor of tbe plaintiff dissolving the marriage for the adultery committed by the defendant, and that tbe plaintiff should have tbe care and custody of the children of tbe marriage. Tbe report directed that judgment be entered accordingly.

      Anson 8. MePfab, for the plaintiff.

      Lossy c& Mcureey, for the defendant.
   Macomber, J.:

The judgment entered upon the report of the referee herein should be reversed and a new trial granted. The defendant, in. her answer, alleged the guilt of the plaintiff, thus putting the question of the plaintiff’s guilt into the controversy. Evidence on the trial was adduced to prove, and did prove without doubt, the guilt of the plaintiff; but in regard to this portion of the testimony the referee says nothing in his report, but finds that the decree of divorce should be found against the defendant, and in favor of the plaintiff, without regard to the testimony adduced by the defendant upon that branch of her case opened up by the counterclaim, and, also, to that extent, in violation of paragraph 4 of section 1158 of the Code of Civil Procedure, which provides that the plaintiff is not entitled to a divorce, although adultery is established, “ where the plaintiff has also been guilty of adultery, under such circumstances that the defendant would have been entitled, if innocent, to a divorce.” (Paul v. Paul, 11 N. Y. St. Repr. 71, and cases there cited.)

The judgment must be reversed, and a new trial granted, with costs to abide the final award of costs.

Dwight, P. J., Lewis and Haight, JJ., concurred.

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


author: Dwight, P. J.:

text:
    Teresa Rice, Appellant, v. Thomas H. Groves, Respondent.

      Mortgage to secure indorsements — construction of the condition of the mortgage, as regards the makers of the notes intended to be covered thereby.

    The condition of a mortgage, executed by Teresa Rice to Thomas H. Groves, was as follows: “ This grant is intended as security for the payment at maturity of a certain promissory note of $1,350, made by the party of the first part and' John Rice, Ellen Rice, William H Rice and Katherine Rice, and indorsed by said Thomas H. Groves, dated March 26th, 1890, due three months after date, at Merchants’ Bank, Rochester, N. Y., and of any renewal or renewals thereof, and for the payment of any indebtedness of the said party of the first part, or of the makers of said note, or either of them, which now exists or which may hereafter exist, to said second party; and to save said second party harmless from loss, cost or damage, hy reason of said indorsement, or for any indorsement hereafter for said parties or either of them; which said note and indebtedness, principal and interest, the said party of the first part hereby covenants and agrees to pay in the manner and at the time aforesaid.”
    When the $1,350 note described in the mortgage came to be indorsed by the mortgagee, it was signed hy Teresa Eice, the mortgagor, alone, and it having been paid, she claimed that the mortgage' applied to that note only, and brought an action against the mortgagee to compel the discharge of the mortgage, on the ground that the indebtedness which it was given to secure had been paid, although further indebtedness to a considerable amount had arisen upon notes of John and William Eice, indorsed and paid by the defendant, and was owing at the time of the commencement of the action.

      Reid, that the phrases “makers of said note, or either of them,” and “said parties or either of them,” in the mortgage, must be construed to refer to and cover all the persons thereinbefore named as the makers of the note; that, consequently, the mortgage covered the indebtedness of John and William Eice to the mortgagee, and was not paid by the payment of the particular $1,350' note.
    Appeal by tbe plaintiff, Teresa Rice, from a judgment of tbe Supreme Court dismissing ber complaint, entered in tbe office of tbe clerk of Monroe county on tbe 25th day of October, 1892, upon a decision of tbe court rendered after a trial at tbe Monroe Special Term.

      J. J. Snell, for tbe appellant.

      D. Says, for tbe respondent.
   Dwight, P. J.:

Tbe action was to compel tbe satisfaction and discharge of record of a mortgage executed by tbe plaintiff to tbe defendant, on tbe ground that tbe indebtedness which it was given to secure was paid.

Tbe condition of tbe mortgage was as follows: This grant is intended as security for tbe payment at maturity of a certain promissory note of $1,350, made by the party of tbe first part and John Rice, Ellen Rice, William H. Rice and Katherine Rice, and indorsed by said Thomas H. Groves, dated March 26,1890, due three months after date, at Merchants’ Bank, Rochester, N. Y., and of any renewal or renewals thereof, and for tbe payment of any indebtedness of tbe said party of tbe first part, or of tbe makers of said note, or either of them, which now exists or which may hereafter exist, to said second party; and to save said second party harmless from loss, cost or damage, by reason of said indorsement, or for any indorsement hereafter for said parties or either of them; which said note and indebtedness, principal and interest, the said party of the first part hereby covenants and agrees to pay in the manner and at the time aforesaid.” It appeared by undisputed evidence that the particular note of $1,350, mentioned in the mortgage, was paid, but that further indebtedness to. a considerable amount had arisen upon notes of John and William Rice, indorsed and paid by the defendant, and was owing at the time of the commencement of this action.

The only question in the case was whether such indebtedness was within the security of the mortgage executed, as- above, by the plaintiff; and the only other fact which requires to be considered in that connection is the circumstance that the particular note of $1,350, which is described in the mortgage as made by the party of the first part (the plaintiff) and John and Ellen and William and Katherine Rice, was in fact, when it came to be indorsed by the defendant, signed by the plaintiff alone. In view of this fact, it is contended on the part of the plaintiff that the application of the security is limited to such indebtedness as arises >upon paper signed by the plaintiff herself. The language of the mortgage in this respect is, as we have seen, “ any indebtedness of the party of the first part, or of the makers of said note, or either of them,” and “any indorsement hereafter for said parties or either of them.” Some testimony was given on the part of the plaintiff which suggests an attempt to make a case of fraud or mistake in connection with the execution of the mortgage; but that purpose is expressly disclaimed on her behalf, and there is no. allegation to that effect in the complaint. She stands upon the strict reading of the security and contends that the phrases “the makers of'the note or either of them” and “said parties or either of 'them,” must be construed to cover only the actual maker of the note referred to and not the persons named in the mortgage as the makers .of the note.

It seems clear that this contention is a mistaken one. It is •apparent that the mortgage was drawn before the note was signed, when it was expected that it would be signed by the parties who ¡are named in the mortgage as its makers, and that, being once named as tbe makers of tbe note, they were subsequently referred to by that designation to avoid the repetition of then names.

In other words, when the mortgage speaks of “ the makers of the note or either of them,” the reference is to the persons therein before named as the makers of the note, and in the corresponding phrase, “ the said parties or either of them,” the reference is the same.

This obvious interpretation of the language of the mortgage is in harmony with what appears incidentally in the case in respect to the occasion and purpose of the execution of that security. It seems that one Edward J. Rice, being an insolvent and having — as it was expressed by one of the counsel here — lost the use of his name, was doing business as a contracting plumber, in the name of his brothers, John and William Rice, under the style of Rice Brothers, and that he was the financial manager of the business. He was also-the agent of his wife, in whose name the real estate covered by the mortgage was held. Having occasion to procure assistance for the firm by the indorsement of the defendant, he offered him security on the real estate mentioned, and himself procured his wife to execute the mortgage, which she did with knowledge of its terms and without fraud or mistake. The note of $1,350 was the first to be indorsed by the defendant on the credit of the mortgage, and was expected to be signed by the brothers John and William and their wives as well as by the plaintiff. It was made for the benefit of the firm, as were also the subsequent notes indorsed by the defendant, which were made by the ostensible members of the firm.

The findings of fact of the court at Special Term were based upon substantially uncontradicted evidence, and they support the conclusions of law which are in accordance with the views above expressed.

The complaint was properly dismissed and the judgment appealed from should be affirmed, with costs.

Lewis, Macomber and Haight, JJ., concurred.

Judgment appealed from affirmed, with costs.


text:
    Martin Mahoney, Appellant, v. Julia A. Mahoney, Respondent.

      Action brought to restore the lien of a judgment — place of trial — local action.

    An action brought to restore the lien oí a judgment upon real estate, which had been lost through its merger in the fee resulting from an assignment of the judgment to the owner of the land, is a local action within section 982 ,of the Code of Civil Procedure, and must by force of that section be tried in the county in which the land is situated
    Appeal by the plaintiff, Martin Mahoney, from an order of the Supreme Court made at the Monroe Special Term on the 27th day of December, 1892, and entered in the office of the clerk of Monroe county, changing the place of the trial of the action from the county of Monroe to the county of Oneida.
    The action was brought to set aside and cancel an assignment of a judgment made by the plaintiff to the defendant, and to restore the lien of the judgment upon certain real estate owned by the defendant.

      Q. Ycm Yoorhis, for the appellant.

      Timothy Curtiss, for the respondent.
   Lewis, J.:

On the 23d day of July, 1887, the plaintiff recovered a judgment against one Morris J. Mahoney for $485.75. Morris was at the time of the recovery of the judgment, the owner of a house and lot in the city of Rome, Oneida county, in this State. The judgment became a lien thereon, and this was all the real estate then owned by Mahoney. While the judgment was a lien upon said premises, Morris conveyed them to the defendant, Julia A. Mahoney, his wife. Thereafter, and on the 6th day of January, 1888, the plaintiff assigned the judgment to the defendant without receiving any consideration therefor. He was induced to make the assignment by the fraud and undue influence of the defendant and her husband. The defendant is still the owner of said real estate. Morris has died since the recovery of the judgment. The relief demanded in the complaint is that said assignment of the judgment be canceled and set aside, and that the defendant be restrained pending the action from discharging said judgment or transferring or otherwise disposing of the said assign? ruent, and that any discharge of the said judgment executed by the. defendant or any other person be canceled and set aside and that the lien of the plaintiff’s said judgment upon the real estate owned by the said Morris J. Mahoney and conveyed as aforesaid to the defendant be restored. The county of Monroe was designated in the complaint as the place for the trial of the action. The defendant duly demanded and required that the action be tried in Oneida county, on the ground that the real estate upon which the plaintiff seeks to have the lien of the judgment reinstated and restored is situated in that county. An order was granted changing the place of trial from Monroe to Oneida, and from that order an appeal was taken to this court. The defendant being at the time of the assignment of the judgment to her the owner in fee of the real estate on which it was a lien, the judgment was merged in the greater estate and ceased to be a lien. (Asche v. Asche, 113 N. Y. 232.)

Plaintiff seeks the judgment of the court vacating and setting aside the assignment and adjudging that the lien of the judgment, notwithstanding its merger in the greater estate, be restored and again made a lien upon the land.

Section'982 of the Code of Civil Procedure provides that an “ action to recover or to procure a judgment establishing, determining, defining, forfeiting, annulling or otherwise affecting an estate, right, title, lien or other interest in real property or a chattel real,” must be tried in the county in which the subject of the action is situated.

The main purpose of this action is to obtain a judgment restoring the lien of a judgment upon land owned by the defendant, and which had ceased to be a lien thereon. The action, therefore, directly affects a right or lien on the land. The cases of The Yates County National Bank v. Blake (43 Hun, 162) and Knickerbocker L. Ins. Co. v. Clark (22 id. 506), relied upon by the appellant, are not authority to the contrary. The first case was an action by a junior mortgagee to compel the assignment to him of a prior mortgage upon the same premises upon which his mortgage was a lien, upon the payment by him of the amount secured by said first mortgage. The court held that the lien of the mortgage was not sought to be affected; that in the hands of the plaintiff, it would remain the same lien and for the same amount, and the action was not, therefore, local.

The case in 22 Hun (swpra;) was brought in the county of New York, to restrain the defendant, who had in his possession a satisfaction piece of -a judgment against one Nelson, from delivering the same to Nelson. Nelson owned real estate in Ulster county. The-defendant, upon an affidavit showing that Nelson had disposed of' the Ulster county property and owned land in Kings county, asked to have the place of trial changed to Kings county, under section 982 of the Code. The motion was denied upon the ground that the recovory of the judgment would not affect a right or lien upon real property. The subject of the litigation was simply the right to the possession of the satisfaction piece. If the plaintiff secured the relief he sought, the lien of the judgment would not in any manner have been affected thereby. The court below correctly held this to be a local action.

The order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., Macomber and Haight, JJ., concurred.

Order appealed from affirmed, with ten dollars ' costs and disbursements.


text:
    The People of the State of New York, Respondent, v. Charles H. Laurence, Appellant.

      Larceny of horse street cars — possession for a special purpose — sale thereof and' appropriation, of the proceeds.

    On the trial of an indictment charging the defendant with the crime of grand larceny in the first degree, in feloniously taking two street cars, the property of the Lockport Street Railroad Company, there was evidence tending to show that the defendant, claiming to represent a certain railway equipment and construction company, entered into a contract with the street railroad company and its stockholders, which provided that the construction company should change the road from a horse to an electric road within a specified time, and provided for the sale and transfer of the stock and property, including street cars, of the street railroad company to the construction company, upon payment therefor hy the latter as provided hy the agreement, hut that the property-should not he delivered to the construction company until paid for.

      The evidence further tended to show that after the execution of this agreement, the defendant, through false pretenses, made with the intention at the time of appropriating the cars to his own use, was allowed by the street railroad company to take possession of the two cars which he was charged with stealing, without having paid for them, for the special purpose of having them changed into electric cars, and that instead of so doing he sold and shipped them to parties out of the State and appropriated the proceeds to his own use.

      Held, that the evidence warranted the conviction of the defendant of the crime charged.
    Appeal by the defendant, Charles H. Laurence, from a judgment of the Court of Sessions of Niagara county, convicting him of the crime of grand larceny in the first degree, rendered upon the verdict of a jury and entered with the clerk of .Niagara county on the 28th day of June, 1892.
    The defendant was indicted for the crime of grand larceny in the first degree, in feloniously taking and appropriating two street cars, 'the property of the Lockport Street Railroad Company. He was tried and convicted of the crime charged, and appealed to the General Term. The General Term decided that the indictment was insufficient to charge the crime of larceny and reversed the conviction. (66 Hun, 574.) The People thereupon appealed to the Court of Appeals, where the indictment was held good, and the case remanded to the General Term for a further hearing, that the General Term might exercise its discretion upon the evidence. (137 N. T. 517, 525.)
    The case was thereupon again presented to the General Term.

      Richa/rd Ckowley, for the appellant.

      P. F. King, District Attorney, for the People.
   Lewis, J.:

The Court of Appeals has decided that the indictment charges the defendant with committing the crime of larceny. (137 N. Y. 517.)

There was evidence tending to show that the Lockport Street Railroad Company was an incorporated company, that it owned the usual equipment of a street railroad, consisting of iron rails, street cars, etc. The company had operated the road for three years, and up to the 1st day of January, 1891, when the business, not having proved to be profitable, was suspended. Tbe cars were operated by horse power. In the month of July thereafter the defendant entered into negotiations with the company with the avowed purpose of purchasing the franchise and the plant and converting it into an electric road. He claimed to represent a western construction company by the name of the United States Railway Equipment and Construction Company. The negotiations resulted in the execution of a written contract bearing date July 27, 1891. It was executed on the part of the construction company by the defendant, as general manager thereof, and by E. M. Ashley and.John Hodge for the Lockport Company, Ashley and Hodge being at the time the owners of all the stock of the railroad company. The contract provided that the construction company should proceed within thirty days to effect the changes of the system of operating the road, and complete the same by the 1st day of January, 1892. It further provided for the sale and transfer of the stock of the railroad company to the construction company upon the payment by the latter for the stock in a manner stated in the contract. It further provided that Hodge and Ashley should turn over to the construction company, at the time of the delivery of the stock, all the property of the company, consisting of its franchise, railway track, eight street cars, .etc. The property was not to be delivered to the construction company until it was paid for as provided in the agreement. From, the time of executing the contract the evidence tends to show that the defendant devoted his time and talents to obtaining by various devices possession of the property of the railway company without paying anything for it. Nnder the pretense that it would be necessary to exchange the rails for heavier ones, the defendant secured possession of them and sold them for $2,800 or $2,900, and appropriated the principal part if not all of the proceeds of the sale to his own use. He sold the rails at considerably less than their market value. He obtained possession of the two cars he is charged in the indictment with stealing, by representing to Messrs. Ashley and Hodge that he wished to send them to Buffalo to have them there transformed into electric cars, agreeing that when they were so changed he would return them to the possession of the company. He shipped the cars to Buffalo, and instead of arranging to have them changed as stated, he at once sold them for $150 and shipped them to a firm in Marion, Ind., and appropriated the proceeds of the sale to his own use. All this was done without the knowledge or consent of the owner, and when inquired of by Messrs. Hodge and Ashley as to what had become of the cars, he declined to give any information concerning them except to say they were all right. He contracted to sell the rest of the cars, six in number, to a Mr. Breckenridge, of New York city, receiving .from him in payment therefor his notes for the sum of $500. This trade fell through because the defendant was not able to obtain possession of the cars so as to deliver them to the purchaser.

Suffice it to say, without rehearsing the evidence farther, the only inference which can be drawn from the facts, as disclosed by the evidence, is that the defendant got possession of the cars, which he is charged in the indictment with stealing, for a special purpose, to wit, to have them changed into electric cars, as stated. The company allowed him' to take possession of them for that purpose only. The pretenses were false' and were made with the intention at the time of appropriating the cars to his own use. The defendant, probably, from the very commencement of his negotiations, intended by some fraudulent device or other to cheat the company out of its property, but if that was not his original intention, the evidence justified the jury in believing that he had that intention at the time he obtained possession of the cars. The evidence tended very strongly to prove the defendant guilty of the crime charged in the indictment. We find nothing in the defendant’s exceptions calling for a reversal of the conviction.

The judgment and conviction of the Niagara County Sessions appealed from should be affirmed, and the case remitted to that court to proceed thereon.

Dwight, P. J., Macombek and Haight, JJ., concurred.

Judgment and conviction of the Court of Sessions of Niagara county affirmed, and case remitted to that court to proceed thereon.


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    Joseph P. Toms, Respondent, v. The Buffalo Creek Railroad Company, Appellant.

      Employer and employee — negligence — railroad switchman injured while uncoupling can's — sta/rting of the locomotive — alleged defective locomotive valve.

    In an action brought by a railroad switchman, against the company by which he was employed, to recover damages for a personal injury caused by a train moving and crushing his arm between the cars which he was engaged in uncoupling, the plaintiff alleged that the accident was caused through a defective valve in the train locomotive, which caused the locomotive to start. The evidence showed, however, that the alleged defectfin the valve, known as “ cocking ” or “ lifting,” could cause it to operate of itself only when the engine was in motion propelled by steam, not when it was standing still, and that the train was standing still when the plaintiff went between the cars, and then started, causing the accident, and that the engineer was managing the locomotive at the time.

      Held, that the only conclusion to be drawn from the evidence as to the cause of the accident, was that the engineer, from some cause which he failed to explain, while the engine and train were standing still, let on the steam, and pushed the cars together, and that the accident was caused by his and not the company’s negligence;
    That there was nothing in the case justifying the jury in finding that the valve was faulty in its construction, or was out of repair at the time of the accident;
    And that a verdict should have been directed for the defendant.
    Appeal to the General Term of the Superior Court of Buffalo by the defendant, the Buffalo Creek Railroad Company, from a judgment of the Superior Court of Buffalo, entered in the office of the clerk of that court on the 7th day of July, 1886, upon the verdict of a jury in favor of the plaintiff, and from an order denying the defendant’s motion for a new trial made upon the minutes.
    Two of the judges of the Superior Court of Buffalo being disqualified to hear the appeal, it was certified into the Supreme Court.

      A. D. Scott, for the appellant.

      Porter Norton, for the respondent.
   Lewis, J.:

The plaintiff recovered a verdict in the month of August, 1882, against the defendant for injuries sustained by him alleged to have been caused by the negligence of the defendant.

The defendant is a steam railroad in the city of Buffalo. The plaintiff at the time of receiving his injuries was in its employ as a switchman.

Uis complaint alleges that it was part of his duty as such switch-man to go in between cars for the purpose of coupling and uncoupling them; that there was on the day he was injured a train composed of a locomotive and twelve cars belonging to the defendant and under its management and control, and that he was- directed by the defendant to go in between two of the cars for the purpose of uncoupling them, that after the locomotive and cars had come to a stop he went in as directed, and that without any notice or warning to him and without any signal being given and without any one causing it so to do, the locomotive started and pushed the train so as to bring the cars plaintiff was attempting to uncouple together in such a manner that his arm was caught between the cars and crushed; that the machinery of the locomotive was at that time in such a defective and insecure condition that the engine was hable to become unmanagable, and that because of such defects it on this occasion started and moved the train and caused the injuries, and that its defective, unsafe and insecure condition was and had for a long time prior thereto been known to the defendant.

The alleged defect was in a valve the office of which was to regulate the flow of steam used in propelling the locomotive. The plaintiff’s evidence tended to show that on some occasions previous to the time of the accident this valve had failed to obey the lever of the engine, that when it was lifted by the steam from its seat it had on one or more occasions failed to drop back into its proper place and had tilted over upon its side and thereby permitted the steam to continue to flow so that the engineer was not able to stop the locomotive. This falling over of the valve was called by the witnesses “ cocking of the valve.”

The mechanism and operation of this valve and the functions it was intended to perform were very minutely and particularly described by the witnesses. From the view we have taken of the case we do not deem it necessary or profitable to more particularly describe the valve or its operation.

All the witnesses testified that when the engine was standing still the valve must necessarily be in its proper position and properly perform its functions and prevent the flow of steam. They all agreed that the act of cocking could only occur when the engine-was being propelled by steam.

As stated, the complaint alleged that the train was standing still when plaintiff attempted to uncouple the cars. Plaintiff testified: “"William Murray, the assistant, told me to cut off two cars. I went in and pulled the pin. It was pretty hard work. It was one of those pins you could not get out altogether, and I gave him the signal to go ahead and shove the car on the side track and he gave the engine steam. The pin dropped in and a couple of the cars went together again. I could not pull the pin until he stopped, and I gave him the signal to stop and he stopped and I went in. Upon working the pin the cars came ahead and caught me over the elbow. * * * When I went in between the cars the second time the train had stopped and the timbers of the cars that I went between were three'or four inches apart. There was slack enough to pull the pin if it had not stuck. There was no signal given by me nor by any other person to my knowledge to start the train. When I went in between the cars they had stopped; and I couldn’t see any_ signal when I was working at the pin, but the cars came upon me. When working at this pin my elbow was between the' timbers; what they call the deadwood, a piece of wood that' saves the drawheads from coming together. I was shaking the pin and trying to loosen it and my arm came in that position.”

William Briggs, a witness called' by the plaintiff, testified: “I saw the accident to Toms. I was right behind taking the numbers of the cars and he was ahead of me. * * * I know when he went in between the cars I was about thirty feet away from him, and the train was then standing still. I think it was about half a minute when he went in before I heard him holler and the cars were then just moving. I saw the cars moving, and gave the signal to stop them. They moved about thirty feet after I heard him holler. I also gave the signal for the train to stop before Toms was hurt, about a couple of minutes before. There was nobody but myself and Toms who could give any signals to the engineer for the movement of the train. * * * The cars were stopped there to get their numbers and to get them receipted. * * * The cars had been stopped a couple of minutes when the accident took place. * * * The cars started slow and easy.”

The evidence of these witnesses was nncontradicted.

George L. Geyer was the engineer in charge of the engine at the time of the accident. His testimony tended somewhat to confuse the case, hut if examined carefully will he found not to contradict the fact testified to by the plaintiff and Briggs, that the train was standing still when the plaintiff went in between the cars.

Geyer testified: When Toms was hurt, I was on the engine. * * * I received a signal to stop from Toms or Briggs. The signal indicated that I should stop quick. I shut off the steam and reversed the engine. There was a slight grade at that point in the direction the engine was running, so that when I pulled up, I was on a slight grade. When I reversed the lever, it had a tendency to check the train, and the piston began to pump air back into the steam pipe. I shut off the steam. At this time we were running about six or seven miles an hour. The next thing I did was to throw the reverse lever ahead. After I had thrown the reverse lever back to shut off the steam, the engine slowed down. I heard the valve drop hack on its seat about three distinct times. This indicated that if I was not careful, the valve was liable to cock. * * * It was about half a minute or forty-five seconds after I received a signal to stop before I heard the valve working up and down. The train had not then come to a standstill, but had slowed up about half, and we were then running at the rate of three or four miles an hour. When I heard the valve rise in the manner I have indicated, I opened the cylinder cocks and threw the reverse lever ahead, thereby taking off the pressure, and preventing the air from running into the steam pipe. When I did this, the engine moved ahead. I next reversed my engine back. I did not hear anything then, and the train came to a standstill. I looked out of the cab for signals and did not hear anything of Toms, but saw him come out from between the cars on the side of the track, having hold of his arm. I then came down from the engine and went up to where he was. I found that his arm was crushed.”

Geyer testified that he believed, when he let on the steam, that the valve was about to cock, and that that was the reason for giving the engine the additional steam.

It will be observed that the engineer testifies that when his train was running at the rate of three or four miles an hour on a down grade, lie heard the noise of the valve rising and falling, and, fearing that, it was about to cock, threw the reverse lever ahead, which caused the engine to move ahead, and that the train only moved thereafter about twenty-five or thirty feet before it came to a stop. It is quite improbable that such a train under such circumstances could be stopped in so short a distance. The account given by the plaintiff and Briggs is much more probable. They testified that the train was standing still; that the engine started and pushed the train about thirty feet before it was again stopped, and that the plaintiff thereupon came out with his arm crushed.

While the account of the occurrence as related by the engineer might lead to the inference that he looked- out of his cab immediately after he stopped his train and saw the plaintiff come out holding his arm, he does not, however, testify how soon he looked out of his cab after his train stopped. His evidence is not necessarily contradictory or inconsistent with the testimony of the plaintiff and Briggs. Plaintiff’s version of the transaction is undoubtedly the correct one; it coincides with his claim as stated in his complaint, and he should not have been permitted upon the trial to assume any other position.

There is but one rational conclusion to be drawn from the evidence as to the cause of the accident', and that is that the engineer, from some cause which he fails to explain, while the engine and train were standing still, let on the steam and pushed the cars together, and thereby caused the injury, and that the accident was caused by his and not the company’s negligence.

As we have seen, the valve, when the engine was at rest, could not be lifted from its seat and tilted over. When the engine was in that condition the valve must necessarily and inevitably perform its proper functions in preventing the flow of steam. There is no reasonable.ground for the contention that .the plaintiff was entitled to recover , if his version of the transaction was the correct one, and yet the learned court refused to charge, upon request of the defendant, “ that if the jury find that the train was at a standstill when the plaintiff went in between the cars at the time of the accident and took hold of the coupling pin to uncouple the cars, there can be no recovery in this action.” To such refusal defendant’s counsel duly excepted.

The valve in question was known as “ the Winans valve.” It was the kind of valve in use on all the defendant’s locomotives.

The plaintiff called engineers and mechanics who testified that they were familiar with the construction and parts of locomotives, but they had never known the Winans valve to be used on any other engines but those of the defendant. They described valves used upon other engines, and one of the witnesses, a machinist, after examining a diagram of the valve known as “ the balance valve,” was allowed, against the defendant’s objection, to give his opinion of the advantages of that valve over the Winans valve, and stated that the former is always under the control of the engineer and cannot get out of order. * * * There is no danger of the balance valve cocking.” He further stated, I could not say how it is in this regard about the Winans valve. I never saw one like it before.”

A number of plaintiff’s witnesses testified that if the Winans valve were kept in order there would be no liability of its sticking or cocking.

This evidence was not contradicted.

Witnesses testified that any valve if not kept in good condition might fail to work properly.

John G-. Murray, a witness sworn for the plaintiff, after testifying that he had been an engineer, was asked by the plaintiff, Do you know of other throttle valves in use upon engines where this cocking and lifting could be prevented for the purpose of supplying steam?” Defendant’s counsel objected to the question as incompetent, immaterial and improper. The court in overruling the objection stated: “ I think he has a right to show that this is not the best device that could be used.”

The learned court, in denying the motion for a direction of a verdict for the defendant, stated: “ I think there is some proof of the defective construction of this valve.”

The undisputed evidence was that this engine was taken to the repair shops in the spring before the accident, and was put in good repair throughout. It went into service again on the sixteenth -of June, two months before the accident occurred; the valve worked well after these repairs were made and was not known to cock thereafter.

There was nothing in the case justifying the jury in finding that the valve was out of repair at the time of the accident.

The verdict cannot be accounted for unless upon the theory that the jury was misled by the manner in which the case was submitted to them; while considering the case they must have wandered off into the field of speculation as to the merits of the Winans valve, and concluded that perhaps it was after all faulty in its construction notwithstanding that every witness who testified about it said that if it was in good order it would work well.

We do not see any ground upon which the plaintiff was entitled to recover. If plaintiff went in between the cars and attempted to uncouple them when they were in motion, it might well be doubted if he was not guilty of negligence that would prevent his recovery. But, as before stated, we do not. think there is any evidence that the cars were in motion when he attempted to uncouple them, and, therefore, he was not shown to be guilty of negligence contributing to his injuries.

We put our decision upon the ground that the plaintiff failed to prove any negligence on the part of the defendant.

The defendant’s motion for a direction of a verdict should have been granted. The judgment and order appealed from should be reversed and a new trial granted, with costs to abide the event.

Dwight, P. J., Maoomber and Haight, JJ., concurred.

Judgment and order of the Superior Court of Buffalo appealed from reversed and a new trial granted, with costs to abide the event.


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    George S. Ewart, Plaintiff, v. The Bank of Monroe, Defendant.

      Sale of goods by a commission agent — death of the agent, insolvent — right of the principal to recover from a bank the proceeds of goods sold, deposited therein by the agent — unpaid note of the agent, held by the bank.

    If a commission, merchant deposits to Ms credit in Ms own open general hank account Ms principal’s share of the proceeds of goods sold, which the principal is entitled to have immediately remitted hy the agent, and dies leaving the deposit so credited, the principal may recover the same from the hank in which it is deposited, in an action at law, and the hank cannot resist payment thereof on the ground, that it has a lien on the deposit from the mere fact that it holds an unpaid note of the depositor which it has discounted for him, but which was not due at the date of the deposit, or on the ground that the depositor’s estate is insolvent; nor is it a defense to such action that the plaintiff had not obtained or presented a check for his money, drawn by the depositor or his representatives.
    Motion by the defendant, the Bank of Monroe, for a new trial upon exceptions ordered to be heard at the General Term in the first instance, upon the direction of a verdict for the plaintiff at the Livingston Circuit on the 8th day of February, 1893.
    The action was brought by the plaintiff, George S. Ewart, to recover from the defendant, the Bank of Monroe, the sum of $364.89, with interest thereon from August 31, 1892.

      JO. O. Heed, for the plaintiff.

      ElJbridge L. Admns, for the defendant.
   Lewis, J.:

On the 29th day of July, 1892, the plaintiff shipped to-Elmer E. Frye, a commission merchant, doing business in the city of Rochester, a carload of oats, which Frye had theretofore contracted to sell for the plaintiff on commission. The oats arrived in Rochester on the first of August. Frye was at the time confined to his house by sickness. His agent received the oats, turned them over to the purchaser and received in payment therefor, in currency, $395.20, which he immediately deposited with the defendant bank, and the bank credited Frye’s account with the amount of the deposit. The deposit was made in the ordinary manner, without any notice being given to the bank officials as to who owned the money.

The plaintiff was entitled to $364.89 of the proceeds of the sale, the balance being the commissions, freight, etc., to which Frye was entitled.

Frye died on the fourth day of August following, without paying the plaintiff for the oats. His estate was found to be insolvent.

The plaintiff had made prior consignments of grain to Frye, and the custom had been for Frye to sell the property, receive the proceeds of the sale, deposit them with the defendant bank and immediately obtain from it a New York draft for the amount coming to the plaintiff and remit the same to him.

Frye kept an account with the defendant, and he had a credit balance with the defendant at the close of the business of July twenty-fifth, of $2,571.92; July twenty-sixth, $9,611.92; July twenty-seventh, $2,029.22; July twenty-eighth, $3,743.41; July twenty-ninth, $2,053.67; July thirtieth, $1,933.67; August first, $3,029.86,'and August second, $2,199.92. His last deposit was on the second of August, of $547.50. On the second of August the defendant paid Erye’s acceptances and his check for sums aggregating $1,377.44, which left, as we have seen, to his credit in the bank at the close of business on that day $2,199.92. The defendant discounted for Frye on' the first of August his promissory note of $4,000, and credited his account on that day with the proceeds of the discount. The note was given to renew a note of Erye’s then held by the bank maturing that day. The note discounted on the first of August fell due on the fifth of September following, and has not been paid, or any part of it. The defendant bank held at the time of discounting the $4,000 note collaterals of the value of $3,100. The plaintiff notified the defendant on the 9th day of August, 1892, that he claimed to be the owner of $364.89 of the deposit made by Erye on the first of August, and forbid the payment of said sum or any part of it to the administrators of Erye, and on the thirty-first of August following, made a written demand for the payment of the money of the defendant. Payment was refused, and thereupon this action was commenced.

At the close of the evidence each party asked for the direction of a verdict in their favor respectively; a verdict was directed for the plaintiff for the sum of $364.89.

Plaintiff contends that the net proceeds of the oats belonged to him, and that notwithstanding they were deposited with the defendant by Frye they are still his property and that the defendant is liable to him therefor in an action at law.

The defendant contends that, being the owner of Erye’s note for $4,000 at the time the deposit was made, it had a lien thereon by virtue of being the owner of the note, and it further contends that it was under no legal obligations to pay the money to the plaintiff without the presentation of Erye’s check or of that of his representatives ; that in no event can the plaintiff recover, in an action at law; that if the plaintiff has any remedy it is an action in equity to which Frye’s representatives are a party.

It was Frye’s duty on receipt of the money for the oats to remit to plaintiff his part of the proceeds of the consignment. This he probably woulct have done had it not been for his sickness. It was the plaintiff’s money. It was deposited with the defendant without plaintiff’s consent; Frye’s agent could not deprive the plaintiff of his right to the money by delivering it to the defendant.

Judge Andrews, speaking for the Court of Appeals in Baker v. New York Nat. Ex. Bank (100 N. Y. 33), says that, “ The relation between a commission agent for the sale of goods and his principal is fiduciary. The title to the goods until sold remain in the principal, and when sold the proceeds, whether in the form of money or notes or other securities, belong to him, subject to the lien of the commission agent for advances and other charges. The agent holds the goods and the proceeds upon an implied trust to dispose 'of the goods according to the directions of the principal, and to account for and pay over to him the proceeds from sales. The relation between the parties in respect to the proceeds of sale is not that of debtor and creditor simply. The money and securities are specifically the property of the principal and he may follow and reclaim them so long as their identity is not lost, subject to the rights of a Iona fide purchaser for value.”

Merrill v. The Bank of Norfolk (19 Pick. 32), is to the same effect.

Clark v. Merchants' Bank (2 Const. 380), is not in conflict with this doctrine. The facts in the latter case negative the claim of the plaintiff there that the proceeds of the bill were to be remitted to them when received by their correspondents in New York. They were deposited with the defendant bank in that case by consent of the plaintiff.

The plaintiff’s right to the money here could not be affected by the deposit, unless the defendant, when it received the money and credited Frye’s account with it, acquired some right to it superior to that of the plaintiff. There was no' understanding or agreement between Frye and the defendant that it should have a lien upon Frye’s credit balance in the bank as collateral to any notes of Frye’s which the bank might hold. Frye kept an active account with the hank, depositing and checking daily.

It is true the record shows that it was conceded upon the trial that if the cashier were present in court he would testify that the note was discounted by the defendant relying upon Frye’s apparent ownership of his credit balance in defendant’s bank. But it is apparent from the character of Frye’s account with the bank, depositing as he did daily and checking at his convenience upon any credit balance he may have had in the bank, that the bank did not in fact rely upon the moneys on deposit as security for Frye’s paper, but did rely upon the collaterals in. its possession at the time and upon Frye’s personal responsibility. Frye was at liberty to check out all the money he had in the bank if he so deshed, and the defendant could not legally refuse to pay his check because it happened- to hold his paper not then due.

': Frye’s probable-object in obtaining the discount of the $4,000 note was that he might use the proceeds in his business until the note matured. That purpose would have been thwarted if the bank were at once upon discounting the note, to have- a lien upon the money as security for the payment of the note.

Each party having asked for a direction of a verdict, the question of fact as to whether the bank relied upon the deposits as its security for the note was for the decision of the court, and the court found against the defendant on that question.

It being the plaintiffs money, his right to reclaim it did not depend upon the presentation of Frye’s check or that of his representatives. -

We do not see how the possession-and presentation of Frye’cheek would have strengthened the-plaintiffs case. It would not have worked an assignment of the money nor given -the plaintiff a cause of action against the defendant. (Ætna National Bank v. Fourth National Bank, 46 N. Y. 82.)

Then no such defense is pleaded. The defense .interposed is that the defendant has a lien-upon the money-by virtue of being the holder of the $4,000 note mentioned. .The defendant claimed and still claims to have a -lien upon the money against the‘plaintiff as well as against the representatives of Frye.

There is nothing in the record tending to show that Frye’s representatives have any claim or interest in the money, and the defendant has neither by demurrer or otherwise, raised the question of the nonjoinder of Frye’s representatives.

The insolvency of Frye’s estate gave the defendant no lien upon the money. (Fera v. Wickham, 31 N. E. Rep. 1028.)

The' plaintiff made ont his cause of action, and was entitled to the verdict directed by the court-

The motion for a new trial should be denied, with costs, and judgment directed for the plaintiff, on the verdict.

Dwight, P. J., Macomber and Haight, JJ., concurred.

Defendant’s motion for a new trial denied, with costs, and judgment ordered for plaintiff, upon the verdict.


text:
    Frances A. Baker, Plaintiff, v. Benjamin M. Baker, Respondent; Johanna S. Wood, Individually, and as Administratrix, etc., and William O. C. Wood, Appellants; and Others, Defendants.

      ¡Surplus moneys on foreclosure — reference—complete adjudication of claims — pendency of a prior action.

    On the payment into court of surplus moneys arising upon a mortgage foreclosure, one of the defendants in the action claimed the same as junior mortgagee, and moved for a reference to determine claims thereto ; this claim and motion were resisted by certain other defendants, on the ground that there was a prior action pending, in which the right of the claimant was being contested, and in which a complete adjudication could be had. It appeared that this prior action had been commenced by ' the mortgagor and then owner of the mortgaged premises, since deceased, against the claimant, to have an instrument which he had executed to the claimant, in form a deed, declared to be a mortgage; that an interlocutory judgment had been entered declaring the instrument to be a mortgage, and appointing a referee to ascertain the amount due the claimant thereunder; that it was upon this’mortgage that the claimant based his claim to the surplus moneys ; and that after the entry of said interlocutory judgment, the plaintiff in the action in which it was rendered, died, and the action had never been revived, and had since remained in a condition in which no accounting could be had therein.

      ¡Held, that such prior action was not a bar to the proceeding for the distribution 'of surplus moneys, and that the claimant was entitled to a reference.
    Appeal by the defendants, Johanna S. Wood and William O. O. Wood, from an order of the Supreme Court, made on the 29th day of December, 1892, upon the petition and motion of the defendant, Benjamin M. Baker, for a reference to determine claims to surplus moneys.
    The action was brought to foreclose a montgage executed by Hiram Wood, since deceased. The appellant. Johanna S. Wood, is the widow and administratrix of said Hiram Wood, and the appellant, William O. C. Wood, is one of his heirs.

      Q. Ycm Yoorhis, for the appellants.

      John D. Lynn, for the respondent.
   Lewis, J.:

A judgment was obtained in the above-entitled action for the foreclosure of a mortgage and the sale of mortgaged premises. Hpon the sale there arose a surplus of $4,474.31. The petitioner, Benjamin M. Baker, one of the defendants in the action, claimed the surplus money as a junior mortgagee, and petitioned the court for an order directing said surplus moneys to be paid to him. His application was opposed by the defendants, William O. C. Wood and Johanna S. Wood, on the ground that there was a prior action pending in the Supreme Court, in which action the right of the claimant to the moneys was being contested, and that a full accounting could be had and a complete adjudication made in regard to the surplus moneys in that action. It appeared upon the hearing of the motion that one Hiram Wood, deceased, was in his lifetime the owner of the mortgaged premises, and that in the year 1871 he executed and delivered to the petitioner an instrument in writing which was in form a deed, but which was in fact intended as a security for money loaned. An. action was commenced in the Supreme Court by said Wood against Baker, seeking to have said deed declared a mortgage; and an interlocutory judgment to that effect was obtained. A referee.was appointed by said judgment, to take an accounting and inquire and ascertain what, if anything, was due Baker as such mortgagee. After the entry of said judgment, and on or about the 2d day of August, 1891, the plaintiff Wood, died. The action has never been revived, and has since remained in a condition where no accounting could be had therein; and this is the judgment which it is claimed is a bar to this proceeding.

Where two proceedings are pending between the same parties for the same object, the one first commenced is as a general rule a bar to the second proceeding; but we are inclined to the opinion that this proceeding is an exception to that rule. These surplus moneys have arisen out of an action for the foreclosure of a mortgage, in which Frances A. Baker was plaintiff, and the petitioner, Benjamin FI. Baker, and others were defendants. The moneys have been paid into court in this action, as required by section 1633 of the Code, and they are now under the control and jurisdiction of the court in the foreclosure action, and it is fitting and proper for the court in that action to distribute the same by this proceeding, which is an incidental or interlocutory reference under section 1015 of the Code.

Upon the hearing before the referee all parties to the action or any person who had a lien on the mortgaged premises at the time of the sale, and who has filed proper notice, are entitled to notice thereof and can appear and be heard. The powers of the referee are very broad in such a proceeding. He can hear any evidence which may be offered affecting the judgment or lien upon which the claim to the surplus is founded. He can take evidence or investigate any legal or equitable question pertaining to the issue the same as could be done in an independent or original action. He is required to find facts and conclusions of law. The parties to this action are not the same as they were in the action of Wood against Baker. The action sought to be used in bar of these proceedings, as we have seen, abated by the death of the plaintiff. It has not been since revived, and from the facts appearing upon the hearing of the motion it is altogether probable that nothing will ever be done looking to its revival.

The order appealed from was properly granted, and it should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J.,,FIacombeb and Haight, JJ., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


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    Albert A. Brock, Appellant, v. Joseph A. Aspenleiter, Respondent.

      Action to recova'for goods sold — evidence that the goods sold were to he paid for in goods — nonsuit.
    On a trial of an action brought to recover a certain sum of money for butter sold and delivered by the plaintiff, a dealer in butter, to the defendant, a dealer in clothing, the trial judge drew the inference from the evidence that the butter sold was to be paid for in clothing, and there being an absence of any evidence that the defendant had failed to keep his part of the contract, concluded that the plaintiff had failed to make a case, and granted a nonsuit.

      Held, that there was no reason for disturbing the judgment.
    Appeal by the plaintiff, Albert A. Brock, from a judgment of the County Court of Monroe county, entered in the office of the clerk of that county on the 14th day of June, 1892, affirming a judgment of the Municipal Court of Rochester in favor of the defendant.

      O. W. Allen, for the appellant.

      James L. Hotchkiss, for the respondent.
   Lewis, J.:

This action was brought in the Municipal Court of Rochester to recover seventy, dollars and seventy-eight cents for butter sold and delivered by the plaintiff to defendant.

The plaintiff was nonsuited, and an appeal was taken to the County Court of Monroe county from the judgment of nonsuit on questions of law only; the judgment was affirmed by that court, and an appeal was taken to this court. All the evidence came from the plaintiff. He was a dealer in butter; the defendant was in the clothing business.

The plaintiff testified that he first began to deal with the defendant in 1889. “ I asked him (meaning the defendant) if he would take butter of me, if I would take clothes; it was to the effect that he wanted butter, and I told him if he could use the butter it would help me, it would be as good as cash; he said, all right. * * * The butter and clothes were all part of our transaction.” I have no memorandum of tbe clothes I bought of him; I have never rendered to defendant a statement of my account, and have never demanded payment of that. My understanding of the talk I and defendant had, was, that all butter I furnished was to be credited on account.”

The trial judge drew the inference from this evidence that the butter was sold to be paid for in clothes, and there being an absence of any evidence that the defendant had failed to keep his part of the contract, he concluded. that the plaintiff had failed to make a case, and hence granted a nonsuit, and we find no reason for disturbing the judgment.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., Macombeb and Haight, JJ., concurred.

Judgment of the County Court of Monroe county appealed from affirmed, with costs.


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    Frederick Cordas, Respondent, v. James Morrison and Others, Appellants.

      Motion'for a change of venue — convenience of witnesses — admissions by the plaintiff made on condition that the motion be denied.

    In an action brought to recover damages for a personal injury alleged to have been received by the plaintiff “on or about” the 5th day of January, 1892, in the defendants’ rolling mill in Cohoes, Albany county, through his falling into a hole alleged to have been negligently suffered by the defendants to remain unguarded, while the plaintiff was at the mill for a lawful purpose at the request of one of the defendants’ foremen, the summons designated as the place of trial Ontario county, in which county the plaintiff resided at the time of commencing the action, having removed there from Cohoes after the alleged accident. All the allegations of the complaint were put in issue by the answer.
    The defendants moved at Special Term to change the place of trial to Albany county, on the ground of the convenience of witnesses, and presented an affidavit which contained all the formal requisites necessary to obtain a change of venue. The plaintiff did not claim that any witnesses residing in Ontario county would be needed on his part except himself, but Opposed the change on the ground of expense to himself and delay, and offered, if the motion was denied, to stipulate that the statements in the defendants’ affidavit of what was expected to be testified to by the witnesses named therein were true. The court denied the motion, on this condition, and the plaintiff gave the stipulation. The testimony stated in the defendants’ affidavit was apparently such that if the plaintiff relied upon the fifth of January as the date of his injury his cause of action would be disproved.
    Held, that undue importance was given by the Special Term to the plaintiff’s stipulation; that if the plaintiff had an undisclosed purpose of fixing, at the trial, the time of the accident on some other day than the fifth of January, as he would probably have the right to do, it would be necessary for the defendants to have their witnesses present to meet such an emergency, and that since the convenience of witnesses would be promoted by a trial in Albany county, the motion for a change of venue should have been granted.
    Appeal by the defendants, J ames Morrison and others, from an order of the Supreme Court, made at the Ontario Special Term, and entered in the office of the clerk of that county on the 14th day of November, 1892, denying their motion to change the place of trial of the action from Ontario county to Albany county.

      Gha/rles F. Doyle, for the appellants.

      Spencer Goodvng, for the respondent.
   Lewis, J.:

This action was commenced on the 21st day of June, 1892, to recover damages for injuries which the plaintiff alleges in his complaint he sustained by falling into a hole in the rolling mill of the defendants in the city of Cohoes, Albany county, on or about the 5th day of January, 1892.

It is alleged in the complaint that the plaintiff went into the mill on said occasion at the request ancf suggestion of one of the foremen or managing workmen of the defendant in the daytime for a legal and proper purpose, and while so upon the premises he fell as aforesaid, and charges that the accident occurred and was caused by the carelessness and negligence of the defendants in allowing the hole to remain unprotected and unguarded.

All the allegations of the complaint were put in issue by the defendants’ answer.

Ontario county was designated as the place for the trial of the action. The defendants moved upon the pleadings and the affidavit of E. N. Page for an order changing the place of trial from Ontario to Albany county for the convenience of witnesses. The affidavit contained all the formal requisites required for a change of venue. Thirteen different witnesses were mentioned who would be necessary witnesses for the defendants upon the trial of the action, twelve of whom were residents of the city of Cohoes, county of Albany, and the other residing within two miles of that city in another county.

The affidavit fully stated what was expected to be proved by the different witnesses named, and among other things, that Joseph Ravenseroft and E. N. Page are the only foremen and managing workmen of the defendants and of their rolling mills, and that Andrew Benson is the only foreman of common, unskilled laborers around said rolling mill or employed therein, and that the plaintiff did not at the request or suggestion of either of said persons enter upon the premises of the defendants for any purpose whatever; that on the morning of January 4, 1892, the plaintiff came to the rolling mill of the defendants without invitation or suggestion and solicited work in the mill and that he was informed that they did not need help; that he then left the' premises without meeting with any accident; that on the succeeding morning, January fifth, he called again and. inquired of Ravenseroft for work and Ravenseroft replied that he had none, but said he would go with the plaintiff to Andrew Benson who had charge of the common, unskilled laborers and inquire if he needed any help, and that the plaintiff accompanied Ravenseroft to Benson in another part of the mill and was there informed by Benson that they needed no help, and that the plaintiff immediately thereafter went out of the mill, and did not receive any injury on that occasion. Three witnesses are mentioned who will testify that they heard the defendant say in a conversation in January, 1892, that he had received some slight injuries in defendant’s mill, but that he was not asked or invited by any one to go in the mill or on the premises, and did not go there at the request or suggestion of any one of the foremen or managing workmen of defendants’ mill; that he went there of his own free will and accord, and that he was there without leave, license or authority, and stated that the hole into which he fell was at or near the furnaces used for molting purposes by nine employees of the defendants. These employees are stated in the affidavit to be necessary witnesses to prove that they were at work for the defendants in the mill on the 5th day of January, 1892, within a very few feet of the opening into which the plaintiff claimed to have fallen, and that if the plaintiff had fallen into the hole as claimed they would have seen it, and that it did not occur. The affidavit states that Joseph Ravenscroft and E. N. Page are the only foremen and managing workmen of the defendants, but fails to state who were the foremen and managing workmen in January, 1892, at the time of the alleged accident.

The plaintiff’s affidavit was read in opposition to the motion; it stated that for twelve years prior to the 2d day of March, 1892, he had been continuously a resident of the city of Cohoes, Albany county; that on that day he removed to and became a resident of the village of Canandaigua, Ontario county, New York; that he is a poor man and has no means except what he earns at his daily labor by his trade, and that if the place of trial is changed to Albany county it would be almost impossible to bring his action to trial for the reason that he is informed and believes that the Circuit calenders of Albany county are large, and that the case would not probably be reached in that county for at least a year. The affidavit .also stated that if the trial of said cause is allowed to remain in Ontario county he is willing to stipulate that the facts which the defendant states in his affidavit, served with the notice of motion here, he expects to prove by the witnesses named therein are true. Said stipulation to be used on the trial of said action, and that said defendants need not produce in court any witnesses to prove said facts so stated.”

The defendants’ motion was denied upon the condition that the plaintiff give the stipulation referred to, and thereupon the plaintiff made the stipulation, reciting that a motion having been made to change the .place of trial. “ It is hereby stipulated on the part of the plaintiff that the facts which the defendant, E. N. Page, in his affidavit upon which said motion is founded, expects to prove by the witnesses named in said affidavit are true and will be admitted upon the trial of this action if the place of trial be retained in Ontario county.”

If the accident happened on the 5th day of January, 1892, on the occasion when the plaintiff was at the works and met Joseph Ravens-croft, and he fell into the hole described in Page’s affidavit, or if the admissions mentioned in the affidavit as made by the plaintiff were a true recital of what happened at the time of the accident, in either ease the plaintiff has no legal canse of action against the defendants and the trial must inevitably result in a dismissal of his complaint, and there is no justice or propriety in requiring the defendants to attend court at Canandaigua with their Counsel to go through the formality of dismissing the complaint.

But if, on the other hand, the plaintiff has an undisclosed purpose of fixing the time and occasion of the accident on some other day than the fifth of January, as he would probably have the right to do, as it is alleged in his complaint that the accident happened on or about the 5th day of January, 1892; or, if he intends, to claim that he was invited to enter the works by some other person than Joseph Eavenscroft, and on some other occasion, and intends to claim that the person who thus invited him was at the time of the accident a foreman or managing workman of the defendants, and that he fell into another or different hole than the one described in Page’s affidavit, in either such case it would be necessary and important that the defendants should have their witnesses present at the trial to meet such an emergency. If the plaintiff intends, notwithstanding his stipulation, to bring his cause to trial, the defendants would not deem it safe to rely upon the stipulation as their only defense.

If, after making such broad and sweeping admissions, which apparently negative the existence of any claim upon his part against the defendants, the plaintiff still insists upon going to trial, he manifestly must rely upon some facts or theory not apparent to the defendants, and which we are not ourselves able to discern from the record. We think undue importance was given by the Special Term justice to the stipulation.

There is no pretense that any witnesses will be needed for the plaintiff residing in Ontario county except himself. The alleged cause of action arose in Albany county. The plaintiff had resided in that county to within about three months of the time of commencing his action.

If the trial of the action is to be had the convenience of witnesses will be promoted by its being tried in the county of Albany.

The order appealed from should be reversed, with ten dollars costs and disbursements of tbe appeal, and the motion to change the place of trial from Ontario to Albany county, should be granted, with ten dollars costs of the motion to abide the event of the action.

Dwight, P. J., Macomber and Haight, JJ., concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and motion to change place of trial to Albany county granted, with ten dollars costs to abide the event of the action.