text:
    SAMUEL B. AMORY ard JOHN AMORY, Executors, etc., of JAMES AMORY, deceased, Plaintiffs and Respondents, v. PETER B. AMORY, Defendant and Appellant.
    Before Barbour, Ch. J., Curtis and Var Vorst, JJ.

      Decided December 31, 1874.
    Under the acts of Congress,of 1789, 1866, and 1867 relating to the removal of causes from a State court to a United States court, it must affirmatively appear that the controversy or action is between a citizen of the State in which the action is brought and á citizen of another State.
    The fact that the plaintiffs arre executors, and have taken out letters testamentary in the State of Rew York, does not confer upon the plaintiffs the ahari'acter of citizens of the State of New York, so that they can be considered as such for the operation of this statute. The powers conferred by this statute can be exercised only by the most strict, literal, and perfect compliance with every provision required by the act.
    Appeal from a judgment.
    The only points for a reversal are based upon the defendant’s application to remove the cause to the U. S. Circuit Court, and the denial of the court of the same, and the subsequent trial of the cause.

      Geo. E. Horne, for appellant.
    I. The defendant having taken all the necessary and proper steps under the statute to effect the removal of the suit, and having filed in this court the petition and affidavit, together with a bond which was accepted by the court as good and sufficient security, the cause was Tby operation of the statute removed to the IT. S. Court, and this court had no further jurisdiction. The jurisdiction of the IT. S. Court attaches, and no subsequent event can divest it (Act of Congress, July 27, 1866; Stevens v. Phoenix Ins. Co., 41 N. Y. 149 ; Roberts v. Nelson, 40 How. Pr. 387).
    This court had no power or authority to permit plaintiffs to controvert the allegations in the moving papers, and could not inquire into the truth or falsehood of the facts alleged in defendant’s petition.
    The proper and only place for plaintiffs to raise that issue is in the IT. S. Court (Kanouse v. Martin, 15 How. U. S. 198; Stevens v. Phoenix Ins. Co., 41 N. Y. 149 ; Bell v. Dix, 49 N. Y. 232.
    II. This court having acted without having jurisdiction in the case, all its proceedings subsequent to such filing (of which the court had proper notice), the trial and verdict were without authority of law and are void, and the judgment appealed from should therefore be reversed.

      Fullerton, Knox & Crosby, for respondents.
    I. While we insist upon the inefficacy of the application, it is still proper to examine the case upon its own merits.
    A removal of the cause can be had only when the 61 controversy is between a citizen of the State in which
      “ the action is brought, and a citizen of another State.”
    In all the statutes relating merely to civilians this, distinctive feature is observed. The controversy must be between a citizen of the State in which the action is brought and a citizen of another State.
    In such case the party who is a citizen of such other State may apply for and obtain the removal (Act of March 2, 1867; 1 Abb. U. S. Pr. 122).
    The law is construed so strictly that the court will not remove a cause brought against more than one defendant, if any defendant is a citizen of the State in which the action is brought (Fisk v. Chic., etc., R. R. Co., 2 Abb. Pr., N. S., 453 ; S. C., 53 Barb. 472),
    To show the proper jealousy with which the State courts guard their jurisdiction, reference is made to the following case, where it is held that—
    Upon an application to remove, it is necessary for defendant to show as well that the suit was commenced “by a citizen of the State in which the suit is brought, ’ ’ as that it was commenced “ against a citizen of another State.” A petition, therefore, stating that plaintiff “is a citizen,” is insufficient. Ho legal presumption arises from it that he was a citizen at the time of the commencement of the action (Holden v. Putman, etc., Co., 46 N. Y. 1).
    If the proceedings on the part of the defendant to remove the case to the Circuit Court of the United States were in accordance with the twelfth section of the act of Congress referred to, and if the facts presented to the court upon that application established a case within the act, then the State court, eo instanti, lost jurisdiction of the case, and it was, by operation of law, vested in the federal court, and all subsequent proceedings in the action in the State court were void (Id. p. 4 [Opinion of Andrews, J.] citing: Gordon v. Longest, 16 Peters, 97; Kanouse v. Martin, 15 How. U. S.198).
    It necessarily follows that if the proceedings are not
      “in accordance, etc., or if the facts presented do not “ establish a case, etc.,” then the cause is not removed, and the State court ought to retain jurisdiction.
    The same position is held by the Circuit Court itself.
    “On the presentation of such petition in a State court, no affidavits can be read in opposition. If the jpapers are regular, and conform to the requirements of the act, the court has no discretion (Fisk v. Union P. R. R. Co., 8 Blatchf. 243).
    It follows that otherwise the State court retains jurisdiction, and the cause is not eo instanti removed.
    In this case, Peter B. Amory, a citizen of Bew Jersey, applies for a removal of a suit brought against him, in this court, by Samuel B. Amory and John Amory, who are not “citizens of the State in which the suit is brought,” but who are citizens of Wisconsin.

    They sue as executors of the will of James Amory, which was first admitted to probate in Wisconsin, and afterwards in Bew York, as a foreign will, having letters testamentary from the courts of both States. James Amory was at the time of his death a citizen of Wisconsin. It also appears, without dispute, that both of the plaintiffs, as individuals, were citizens of the State of Wisconsin.
    So far, then, it appears that this is not an action between a citizen of the State in which it is "brought against a citizen of another State. It is brought in a court of the State of Bew York by citizens of the State of Wisconsin against a citizen of Bew Jersey.
    II. But the pretense for saying that the plaintiffs are citizens of Bew York is that they, having taken out letters testamentary in the State of Bew York, “ as such executors, are citizens of the State of Bew York.”
    This is an idle pretense. A citizen of Great Britain or of France may take out letters in this State on a foreign will, but who ever supposed that act made him a citizen of the State of Bew York?

      If it can be demonstrated that the plaintiffs, who are in fact citizens of Wisconsin, could, as such, and by virtue of their office or title as executors derived from the probate of the will of the testator in the Surrogate’s Court of the county of Hew York, sue a citizen of the State of Hew York in the United States Circuit Court for the Southern District of this State, then it is obvious that they are still, in their capacity as executors, citizens of Wisconsin.
    Being citizens of Wisconsin, and executors of the will under the authority of that State, they could not sue in the United States court in Hew York, unless appointed executors under the authority of this State ; but being so appointed, under its authority, they can sue in such court as citizens of Wisconsin and as executors of James Amory (Noonan v. Bradley, 9 Wall. 394 ; Dixon’s Exrs. v. Ramsay’s Exrs., 3 Cranch. 319).
    III. So, too, the Circuit Court of the United States has jurisdiction of suits by executors, if citizens of other States, though their testators were citizens of the same State with the defendant (Childress v. Emory, 8 Wheat. 642; Carter v. Treadwell, 3 Story C. C. 25).
    But, as above seen, they must obtain letters testamentary under authority of the State in which they sue (Noonan v. Bradley, supra; Dixon’s Exrs. v. Ramsay’s Exrs., supra).

    And it is equally true that if the plaintiffs are citizens of Hew York, they may, in right of their testator, who was a citizen of Wisconsin, prosecute in the United States courts, in Hew York, an action against a citizen of the latter state (Clark v. Matthewson, 12 Peters, 164 ; Hatfield v. Bushnell, 1 Blatch. 393).
    IV. Therefore, in any view which may properly be taken of this case, the plaintiffs must be taken and held to be citizens of Wisconsin, and not of Hew York, and this, too, whether they be regarded either in their personal or in their representative capacity; and this "being so, they are not “citizens of the State in which the suit is "brought,” and therefore it is not removable to the United States Court under the act of Congress relied on.
    V. It is obvious from the frame of the Act of 1867, that the question whether the citizenship of the parties is such as to allow of a removal, is traversable and open to inquiry in the court where the petition is presented; while the question whether “he has reason to, and does, believe that from prejudice, etc., he cannot get justice where the cause is pending,” is not traversable (1 Abb. U. S. Pr. 122).

   By the Court.—Barbour, C. J.

The Act "of 1866, like its predecessor of 1789, invests a party who is entitled to the benefit of its provisions with a tremendous power—the power of ousting a high court of a sovereign State of all jurisdiction, without its own consent or even interposition. For, upon the" filing of the petition and other papers required by the act, the State court is ipso facto, eo instanti, wholly and forever divested of its jurisdiction, and the action must thenceforth proceed, if at all, before a tribunal of another and different government. So extraordinary a power and operating such consequences, it is easy to see, can be exercised only upon and by the most strict, literal, and perfect compliance with every provision required by the act.

The statute in question was not intended for the benefit of either of the parties when both the plaintiff and the defendant are citizens of the same State or of different States other than that in which the action is pending, but only where the plaintiff in a case like this is a citizen of the State in which the suit is brought, and the defendant a citizen of another State. Indeed, it is the fact that the parties are thus situated in regard to their citizenship respectively, and nothing else,- that gives authority to Congress under the constitution to legislate upon the subject, and of course it is of the highest importance that the papers should show clearly and conclusively that the party seeking to remove the cause is a citizen of some State other than that in which the action is brought, and that his opponent is a citizen of the latter State; and so the statute requires. In this case, however, the petition did not state that the plaintiffs either then, or when the action was brought, were residents or citizens of the State of Hew York, without qualification or limitation, but only alleged that the suit was-instituted by them as executors, under letters testamentary issued to them here, and further averred that the plaintiffs, as such executors, were citizens of this State, which in effect is the mere averment of a legal conclusion that they were citizens of this State because letters testamentary had been granted to them by a surrogate of Hew York.

It is not necessary to consider whether the defendant is right in supposing that a surrogate has power thus to make a citizen. It is sufficient to say that the averment, as it stands, raises a question for judicial decision, and is not the unqualified statement of the fact of citizenship which is required by the act of 1866.

The fact, too, which I understand to have been established during the progress of the action, that the plaintiffs were and still remain residents and citizens of Wisconsin, is wholly unimportant so far as concerns the question before us. If the requisite facts had been set forth in the petition, the cause, as we have seen, would have been removed from the jurisdiction of the court upon and by the filing of the papers, whether those facts were true or false.

The result of my conclusions is that the filing of the petition and other papers in this case did not oust the court of its jurisdiction. The judgment should therefore be affirmed, with costs. The other case between the same parties involves the same question, and the judgment therein should be affirmed, with costs.

Curtis and Van Yorst, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Barbour, C. J.

license: Public Domain

text:
    HENRY J. SHELTON, Plaintiff and Respondent, v. THE MERCHANTS’ DESPATCH TRANSPORTATION COMPANY, Defendant and Appellant.
    Before Barbour, Ch. J., and Monell and Freedman, JJ.

      Decided December 31, 1873.
    The. deRyeiXtV>A&T-thej:eceipt by,, a common carrier of a package plainly marked with the name and address of the person to whom the 'same is to be forwarded, is equivalent to an express written or verbal direction to the carrier to transport the package as the same is directed.
    No bill of lading is necessary to create the liability of a common carrier: the mere reception of the goods for the purpose of transportation is sufficient.
    Authority to an agent to ship the property includes the power to the agent to accept a bill of lading, containing particular exemptions from liability, and constituting a special contract in relation to the transportation of the goods ; but such acceptance should be made_at_the time, of the shipment; and where ah agent,Trader a general authority to ship goods, delivers the same to the carrier, and takes a receipt for the same, without making any special contract of affreightment, the common-law liability of the carrier is complete, and the agent’s duty fully performed; aud as to such agent’s further employment and agency, he is functus officio, and therefore, without further authority, had no power to accept a bill of lading or special contract afterwards.
    This is an appeal from a judgment entered in favor of the plaintiff against the defendant on the report of Hon. Gilbert M. Speir, referee, on the 24th day of May, 1873, for $2,076.56 damages and costs.

      The action is against a common carrier for negligence in the failure to deliver goods entrusted to its care, and arose under the following circumstances :
    On the second day of October, 1871, H. B. Claflin & Co. shipped by defendant certain cases of merchandise directed to plaintiff, Janesville, Wis., for which defendant gave receipts. On the same day these cases were packed by defendant in cars, and were started on their westward journey the same afternoon. These cars reached Chicago, October 7th and 8th, and were unloaded on Sunday, October 8th, and their contents, including plaintiff’s merchandise, placed in an adjacent warehouse, where they were destroyed in the great Chicago fire the next day.
    There was no dispute about the value of the goods so destroyed.
    On the trial it was proven that on the 3d or 4th day of October a boy from H. B. Claflin & Co.’s obtained bills of lading for these goods without surrendering the shipping receipts. The clerk who made out such bills of lading at that time wrote on the shipping receipts, “ Chi. 30, H. L. F.” and stamped thereon the words, “ Bill lading given October 4, 1871, 335 and 337 Broadway.” The bill of lading limited defendant’s carriage of the merchandise in question to Chicago.
    The referee found from the evidence that on the second day of October, 1871, the said merchandise was actually and completely delivered by plaintiff to the defendant at the city of Yew York, and accepted by defendant for the purpose of transportation to Janesville, Wisconsin, in the north-west portion of the United States, to.be there delivered to the plaintiff, and directed judgment for the plaintiff.

      Beardslee & Cole, for appellant.
    1. The right of a common carrier to limit his liability by special contract is no longer an open question in this State.

      2. It is also well settled that the consignor of goods has power to make contracts for their carriage and bind the consignee. Especially is this so where the consignee names the carrier (Nelson v. Hud. R. R. R. Co., 48 N. Y. 498).
    This rule, where the consignee names the carrier, appears to proceed upon the ground that the consignee knows the usages of the carrier named by him, and is - willing to contract in' accordance with them.
    3. There can be no doubt under the evidence in this case that if the bills of lading in evidence' had been given to and received by H. B. Claflin & Co., at the time the goods in question were shipped, they would form the contracts in this case for the carriage of the goods (Long v. N. Y. C. R. R. Co., 50 N. Y. 76; Belger v. Dinsmore, 51 N. Y 166 ; Blossom v. Dodd, 43 N. Y. 264 ; Hopkins v. Westcott, 6 Blatch. 64 ; French v. Buff, N. Y. & E. R. R. Co., 4 Keyes, 108; Grace v. Adam’s Ex. Co., 100 Mass. 105).
    4. It is submitted that under the evidence in this case the effect of these bills of lading is the same as though they had been received by H. B. Claflin & Co., when the goods were shipped.
    They had been large shippers of goods by defendants. It had always been their custom to obtain bills of lading therefor. The referee refuses to find this fact as immaterial, not as not established by the evidence. The evidence clearly establishes this fact. They themselves sent and obtained these bills of lading. They probably mailed them to the plaintiff. There is no evidence that the plaintiff or H. B. Claflin & Co. were ignorant of the terms of these bills of lading. They are therefore the contracts in this case (Bishop v. Empire Trans. Co., Special Term Superior Ct., opinion by Van Vorst, J., filed April 18, 1873).

      It is thought that no case can "be found to the contrary, except those where a prior verbal contract has "been made and then "bills of lading given containing different terms, no assent being given by the shipper to the change.
    The case of Bostwick v. Balt. & Ohio R. R. Co. (45 N. Y. 712) is in point. In this case there was a verbal agreement as to the carriage of some goods. The goods were delivered, depot receipts taken, and afterwards bills of lading received varying in terms from the verbal agreement. The court held that after the goods were shipped, the mere receipt of a bill of lading and inadvertently omitting to examine its conditions would not defeat the prior verbal agreement. The depot receipts were not regarded as the contracts. The prior verbal negotiations only were considered.
    But the court further held that if the shipper had assented to the terms of the bill of lading it would then have formed the only contract. In the present case the shippers themselves applied for contracts and received them without objection, and there had been no prior verbal negotiations whatever. This, independent of their custom, constituted an assent to the terms of the bills of lading under the ruling in Belger v. Dinsmore supra). ■

    5. The manner in which H. B. Claflin & Co. treated the depot receipts and bills of lading shows the purposes for which they were respectively taken. The depot receipts they themselves retained. They were given and received merely as evidence of delivery. That something further was contemplated is evident from the uniform dealing between the parties. H. B. Claflin & Co. presented these depot receipts to the defendants, had the rates of carriage fixed, and asked for and received the bills of lading. These they mailed to their consignees. The consignees were the owners of the goods and interested in the contracts of carriage. For them were made the contracts, evidenced "by the bills of lading. H. B. Claflin & Co. desired to keep some memorandum for themselves, and for this purpose retained the depot receipts. The only contracts made were those evidenced by the bills of lading.
    3. It is claimed by the plaintiff that the authority of H. B. Claflin & Co. to make a contract and bind him ceased after the goods were delivered to and received lay the defendants. It is submitted that the whole transaction was one, and that under the custom of the parties, in the absence of any proof, as to the specific case, - the plaintiff would be bound by the terms of defendant’s bills of lading, even though in this particular case H. B. Claflin & Co: had not taken any at alL
    7. The defendants are not liable if the loss in question happened through the act of God.
    Great confusion results from the long use of general ¡terms to which no definite meaning can be attached. When extraordinary violence of nature is exhibited we commonly ascribe the manifestations to God, as though it were His direct interposition. All we mean is that an irresistible power has overtaken us, apart from human agency and beyond the possibility of collusion on our part.
    If we look for the reason why carriers have been excused from losses occasioned by the act of God, or the public enemies, we shall find that it is simply because these losses did not proceed from their own negligence .mor from causes at which they could have connived, and that their own strength and vigilance were insufficient to protect them.
    Thus in Colt v. McMechen (6 Johns, 166) Kent, J., says : “A common carrier is only to be excused from a loss happening in spite of all human effort and sagacity,” and it was held that a sudden failure of the wind "whereby a vessel tacking was unable to. change her course and went ashore was an act of God.
    And in Williams v. Grant (1 Conn. 487), it was held that the striking of a vessel upon a rock not generally known, and not known to "the master, was an act of God. It has also been held that running on a shifting' sand-bar of which the master had no knowledge, and which was produced by the current of the stream, was-an act of God.
    In Roll Abr. 808, pi. 6, it is said, in speaking of what shall excuse an escape, “ So if the prisoners escape by sudden fire, this shall excuse the escape, for this is the act of God.”

    In Dyer 66, b. 15, it is said, “If he plead that the prison was broken by the enemies of the King, or by sudden fire, which is the act of God, or by such force or vehement power that "he could not resist, this is good matter.”
    The court can take judicial notice of the Chicago fire and its general characteristics. The violent wind, aided by previous drouth, spread the fire over vast areas in spite of the most strenuous use of all means which experience had hitherto proved to be sufficient. The rapidity of the fire and the distance of defendant’s depot from its starting-point appear by the evidence. TsTo possible vigilance and prudence on defendant’s part could have averted the disaster.
    The original kindling of the fire, more than a mile from the defendant’s depot, is too remote and distant to-be connected with the burning of the depot. Causa próxima non remota spectatur. The proximate cause of the destruction of the depot was the high wind driving the flames against the buildings (Story on Bailments, 525, § 515 ; Waters v. Merchants Louisville Ins. Co., 11 Peters, 213, 223).
    The case is analogous to that of a shipwreck in which. - the wind is the agent and the water the means of destruction.
    Though it is admitted that the cases go far to hold that the carrier insures absolutely against the burning of the goods, unless by lightning, it is believed that no case has been decided holding the carrier liable where, as in this instance, the hypothesis of collusion was entirely excluded.
    The rule excluding fires, other than those kindled by lightning, from the category of causes of loss arising from the “ act of Gfod,” is a “ general law ” for all “ common cases ” (Angell on Carriers, § 156), and does not govern the present case.
    It would be difficult to find a case in which there are more equities in favor of excusing the carrier than are to be found in the present case.
    Wo law or public policy demands that the carrier should be subjected to rules which are against our plainest sense of justice.
    Arnoux, Ritch & Woodford, for respondent.

      Wm. Henry Arnoux, of counsel.
    1. The liability of the defendant to the plaintiff for the safe transportation and delivery of the goods in question was fixed on the second day of October, 1871, by its receipt and acceptance of the goods and its delivery to plaintiff’s agent for that purpose of a receipt for the goods to be delivered at Janesville, Wisconsin.
    The defendant admits the following facts to be correctly found in the third, fourth, and fifth findings of fact of the referee: That 'the merchandise was on said -day actually and completely delivered by plaintiff to •defendant at the city of Wew York; that on said day defendant took charge of and assumed all control over said property and placed the same in cars, which were, forthwith started1 on their journey westward ; and that the receipt delivered "by defendant to plaintiff in no respect limited its liability as common carrier. The defendant simply excepts in those findings to the determination of the referee—that there was ho special or conditional acceptance of said goods, and that they were accepted by defendant for delivery at Janesville. The referee refused to find that the papers given by defendant were only given as evidence of a delivery, and to enable them to obtain bill of lading.
    So, under the unquestioned findings of the referee,, if the defendant is a common carrier, the delivery was absolute and the liability of defendant as common carrier unlimited. There was nothing in the testimony to show any qualified or conditional acceptance of the-goods by defendant, and therefore, as matter of law, the liability of the common carrier attached when the property was deposited with it for transportation (Blossom v. Griffin, 13 N. Y. 569 ; Grosvenor v. H. R. R. R., 39 N. Y. 34; Nelson v. H. R. R. R., 48 N. Y. 504; Lamb v. C. & A. R. R.; Long v. N. Y. Central R. R., 50 N. Y. 76).

      2. This liability of defendant to plaintiff, as a common carrier, is not in any respect modified by any subsequent act.
    1st. As matter of fact, no authority to accept any modification of the contract by Claflin & Co. on behalf of plaintiff was shown, and in law none- can be presumed. Claflin & Co.’s whole authority was to ship the goods to plaintiff by defendant’s line.
    2d. As matter of fact, no modification of the original contract was made. The acceptance by Claflin & Co. of any number of bills of lading, varying the terms of the original undertaking, would not affect any modification of it unless they surrendered the original undertaking,, or accepted such subsequent instrument as a modification thereof.

      3d. Even, if there had been such intent there would have been no consideration for such modification (Corey N. Y. Cent. R. R., not reported, cited 45 N. Y., 716).
   By the Court.—Barbour, C. J.

The only power-given by the plaintiff to H. B. Claflin & Go. in regard to the shipment of the goods which are the subject-matter of this action, was contained in the direction to ship the same to him at Janesville, Wisconsin, by the defendant’s line, and that authority or agency was fully and completely exercised and performed by Claflin & Co. on the 2d of October, by delivering the goods to the defendants at their depot, duly marked “ H. S. Shelton, Janesville, Wis.,” and by taking the receipts of the defendants for the same. This mark upon the boxes sufficiently showed the place to which the property was to be carried and the person to whom it was to be delivered there, and was equivalent to an express written or verbal direction to that effect, and so it must be assumed, in the absence of evidence to the contrary, the defendants understood it, for they immediately sent the goods forward towards their place of destination.

Ho bill of lading is necessary to create the liability of a common carrier. The mere reception of the goods for the purpose of transporting them is sufficient. There is no doubt, however, that the authority given to Claflin & Go. to ship the property to the plaintiff included also the power to accept a bill of lading containing particular exemptions from liability and constituting a special contract (Nelson v. Hud. R. R. R. Co. 48 N. Y. 498). But that should have been done or agreed •upon at the time the goods'were received by the defendants for transportation. When the goods had been delivered, and the employes of Claflin & Co. took their receipts and went away without making a special contract, the common-law obligation of the defendants as carriers was complete, and Claflin & Co., having fully performed their duty to the plaintiff, had become, as to their employment or agency, functus officio, and of course had no right or power to convert the common-law liability of the carriers into a special contract, by the acceptance of bills of lading at a subsequent time.

Besides, even if it could be conceded that Claflin & Co. had the power, under their employment, to accept bills of lading containing special exemptions in favor of the carriers after their common-law liability had attached, it is quite clear that an employment to ship the goods to the plaintiff at Janesville did not empower Claflin & Co. to accept bills of lading by which the defendants undertook to transport the property only as far as the depot in Chicago. That was not within the terms of their agency.

The acceptance by Claflin & Co. of the alleged bills of lading therefore did not affect the rights of the plaintiff nor release the defendants from any portion of the common-law liability which they had assumed as carriers, and it follows that the decision of the referee was right.

The judgment appealed from should be affirmed, with costs.

Monell and Freedman, JJ., concurred.


author: By the Court.—Sedgwick, J.

text:
    THE UNION NATIONAL BANK OF PITTSBURG, Plaintiff and Respondent, v. GEORGE M. WHEELER, Defendent and Appellant.
    In an action upon a bill of exchange where it appears that it was drawn by a foreign (Pennsylvania) corporation upon its treasurer in the city of New York, duly accepted, and subsequently endorsed by the defendant, (the payee named in the bill), and afterwards discounted by the plaintiS for the corporation, the usual presumption of the law as to negotiable paper of this kind, namely, that the making, acceptance, transfer, and endorsement were for legal and sufficient consideration, and that the defendant, the endorser, had a cause of action for the face of the bill against the maker, is applicable.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided, December 31, 1873.
    The simple fact appearing in the case that the bill was discounted for the company after endorsement, does not raise a presumption that the bill was made and accepted by the company without consideration, and for the purpose of raising money, and was endorsed by the defendant for the accommodation of the company.

    Appeal from á judgment.
    The facts considered and the points decided appear fully from the opinion of the court.

      Goodrich & Wheeler, for appellant.

      Thomas M. Wheeler, of counsel.

      Joseph M. Dixon, for respondent.
   By the Court.—Sedgwick, J.

The Brady’s Bend Iron Company, a Pennsylvania' corporation, drew in that State two bills upon its treasurer in Hew York. The treasurer accepted here the bills in the name of the company, payable at the American Exchange Bank of Hew York. ” The defendant endorsed these bills. The superintendent of the company then offered these bills for discount to the plaintiff in Pittsburg. The plaintiff discounted the bills, and passed the amount to the credit of the company’s account with it.

The presumption as to negotiable instruments of this kind is that the making and the transfers were for legal and sufficient consideration. The law presumes primarily that the acceptance was for value, and that the defendantj as endorser, transferred that acceptance. I do not understand that on the trial or on the appeal the appellant took the position that the evidence showed that the bills had not taken their usual course, but that being after endorsement discounted for the company,

, the usual presumption was not applicable, but that the presumption was that it was made and endorsed for the purpose of raising money, and that the company had accepted without consideration, and the defendant had endorsed for its accommodation (Fielden v. Lahen, 6 Abb. N. S. 341; Phelps v. Vischer, 50 N. Y. 69). ¡No-direct evidence was given as to the circumstances of the defendant’s endorsement. IF or was the learned judge below asked to make any .finding of fact in respect of this point. ¡Nor did the defendant claim anything except upon the 'character of the discounting by the plaintiff. We have therefore to presume that the defendant had a cause of action for the face of the bill against the company. If he had, the plaintiff had legal power to purchase that cause of action for any sum, and such a purchase could not be in violation of the Brady’s Bend Iron Company’s charter, which forbade that company to borrow money at a rate greater than six percent per annum.

If we should take any other view of this case, it would be upon proposition not mooted here or in the court below.

The judgment should be affirmed, with costs to respondent.

Monell and Curtis, JJ., concurred.


author: By the Court.—Curtis, J.

text:
    JOHN TIEDMAN, Plaintiff and Respondent, v. JAMES O’BRIEN, Sheriff, etc., et al., Defendants and Appellants.
    Before Barbour, Ch. J., Curtis and Van Vorst, JJ.

      Decided December 31, 1873.
    The Code (§ 261) requires in an action to recover the possession of personal property, that the jury, if they find for the plaintiff, shall assess the value of the property. That value is to be accepted as the substitute for the property itself, when the sheriff cannot obtain and deliver possession.
    In the case at bar, the defendant O'Brien requested the court to charge the jury that they were limited in their verdict as to the value of the property to the amount claimed in the complaint. The court refused so to charge, and the defendant excepted.
    The jury returned a verdict assessing the value of the property at §400 in excess of the value alleged and claimed in the complaint.
    Meld, That a jury in the assessment of the value of the property should be governed by the same principles by which they are governed in the assessment of damages. They should not go beyond the amount stated in the pleadings and included in the issues of the action.
    The exception sustained and judgment reversed.
    The defendant, James O’Brien, sheriff, appeals from a judgment of $2,160.32 entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial on the minutes.
    The plaintiff appeals from a judgment entered in favor of the defendants Long and Nash upon the dismissal of the complaint as against them at the trial.

      Brown, Hall & Vanderpoel, for appellants.

      J. Sterling Smith, of counsel for James O’Brien, sheriff,

      W. W. Niles, for John Tiedman.

      John T. McGowan, for De Long and Nash.
   By the Court.—Curtis, J.

The action is bought to recover the possession of personal property, levied on by the defendant O’Brien, as sheriff, under an execution against Henry F. Bepper at the suit of the defendants De Long and Hash, on or about Hovember 1, 1869. ' At the trial the complaint was dismissed as tó the defendants De Long and Hash, and a verdict was rendered against the defendant O’Brien, the sheriff, for $1900, for which amount, with costs, judgment was entered, and from which, as well as from the order denying his motion for a new trial on the minutes, he appeals.'

It appeared at the trial that Frederick Bepper, the father of the execution debtor, executed a bill of sale to the plaintiff, May 2, 1866, of the property in the business carried on by the plaintiff. That he then delivered possession of it to the plaintiff, who thenceforward conducted the business up to the time of the levy by the sheriff.

The defendant O’Brien at the trial, upon the cross-examination of Frederick Bepper, elicited from him a denial that he had at an interview with De Long in 1869, one of the plaintiffs in the executions said to De Long, that his son, the execution debtor, was keeping the place of business; that he wanted to buy goods ; that he had established him in business, and that if they let him have goods he would pay for them. In order to show a contrary statement to De Long, the defendant offered to prove by De Long that Frederick Bepper stated to the plaintiffs in the execution that he had sold the place in Houston Street to his son; that his son was responsible, and that upon that statement the plaintiffs in the execution sold the goods upon which judgment was recovered.

The-counsel for the plaintiff objected to the evidence. The court sustained the objection and excluded the testimony, and the defendant O’Brien duly excepted.

It was contended upon the argument that the court erred in excluding this testimony.

It is well settled that if a question is put to a witness which is collateral or irrelevant to the issue, his answer cannot be contradicted by the party who asked the question, but it is conclusive against him (1 Greerileaf's Bk. § 449). What this witness had said about his son Henry’s business or responsibility was foreign to the issue raised in regard to the plaintiff’s title to the personal property in question. It also appears that the testimony offered and excluded does not contradict the answer of the witness on his cross-examination. There was no error in excluding the testimony offered, nor was there error in excluding the statements to third parties of the execution debtor, Henry Hepper, and of other members of his family, as to the ownership of the property. There would be little security for property, if statements of this nature by the third parties were allowed in evidence to affect the title.

The defendant insists that by allowing the sale to go on without making claim to the property, the plaintiff was estopped from afterwards claiming it. The suit for the recovery of the property was commenced by the plaintiff within three or four days after the levy. There was conflicting evidence as to whether the plaintiff made any declaration that he did not own the property at the sale, and it was properly submitted to the jury.

The court in charging the jury limited them to the consideration of the evidence, so far as related to invalidating the plaintiff’s title to the declarations of the plaintiff testified to by four witnesses. The only testimony material or relevant affecting adversely the plaintiff’ s title were these alleged declarations by plaintiff which were denied by testimony on his part. The conflicting testimony was classified and discussed by the court, and properly presented to the jury for their consideration.

There is an exception in the case to the refusal of the court to charge the jury that they were limited in their verdict as to the value of the property to the amount claimed in the complaint. They returned a verdict assessing the value of the property at $400 in excess of that stated in the complaint.

The Code, section 261, requires in an action of this nature that the jury, if they find for the plaintiff, shall assess the value of the property. That value is to be accepted as the substitute for the property itself where the sheriff cannot give possession, and with that in view the real subject of inquiry for the jury is the value of the property at the time of the trial (Brewster v. Silliman, 38 N. Y. 423). The value at the time of the levy alone was given in proof at the trial of the present action.

•The jury have assessed the value of the property at a greater amount than that alleged in the complaint. The rule in regard to the pecuniary compensation for a wrong is that it shall not be in excess of the plaintiff’s claim or allegation in that behalf in the complaint. At the time of the commencement of this action, the plaintiff in a complaint duly verified claimed that the value of the property was $1500, as he believed. On the trial he did not ask to have his complaint amended by increasing this amount. The only issue raised by the pleadings in respect to value was whether the property was worth as much as claimed by the plaintiff. The defendant was not called upon to meet at the trial a claim for a sum greater than the value of the property as alleged in the complaint, and damages for its detention.

The jury, for some reason not apparent, do not appear to have awarded damages for the detention of the property, the measure of which would ordinarily be the interest on the value of the property withheld up to the time of the trial.

There appears to be no reason why the. jury, upon the assessment of the value of the property, should not "be governed by the same principles by which they are ■controlled in assessing damages. They should not go beyond the pleadings and the issue in the amount they assess. Otherwise a defendant cannot know what he is to meet, and it is but just that he should not be mulcted in a larger sum than the plaintiff claims in his complaint, or than he had any idea or notice of before he went to trial.

A different view than this would be liable to work injustice, and to defeat one of the objects sought to be gained by the Code in respect to having the complaint apprize the defendant precisely of the nature and extent of the plaintiff’s demand against him.

Under the former system of pleading, the courts benignantly protected the defendant in this respect, and would set aside a judgment entered by the clerk upon a verdict rendered in excess of the damages laid in the declaration (Barber v. Rose, 5 Hill, 76 ; Fish v. Dodge, 4 Denio, 318 ; Curtis v. Lawrence, 17 John. 111). It is in conflict with the meaning of the term “assess,” significantly shown by its derivation that it can be applied to the action of a jury awarding more than the plaintiff demands for his compensation.

The complaint as to the defendants De Long and Hash was properly dismissed. There was no evidence that they had in fact or in law the possession or control of the property claimed. This is. necessary to sustain the action under the Code for the “claim and delivery of personal property” (Roberts v. Randel, 3 Sandf. 707).

The judgment in their favor appealed from by the plaintiff should be affirmed, with costs. As regards the judgment in plaintiff’s favor appealed from by the defendant James O’Brien, sheriff, it should be reversed, and a new trial granted, with costs to abide the event, unless the plaintiff shall within ten days stipulate to and reduce the judgment four hundred dollars, as of the day of its rendition; and if so reduced, it should then Toe affirmed as modified, without costs to either party.

Babboub, Ch. J., and Van Yobst, J., concurred.


author: By the Court.—Freedman, J.

text:
    PETER NELSON, Plaintiff and Appellant, v. CHARLES LULING et al., Defendants and Respondents.
    Before Barbour, Ch. J., and Monell and Freedman, JJ.

      Decided December 31,1873.
    In an action against the incorporators and directors of an ocean steam navigation company, when the defendants are charged :
    First. With fraudulently and corruptly combining to organize said company for the purpose of deceiving such of-the public as might be induced to become stockholders therein.
    Second. With inducing the plaintiff by false and fraudulent representations to purchase twenty-seven shares of the capital stock of the par value of one hundred dollars each.
    The plaintiff must satisfactorily prove that the representations were falsely and fraudulently made ; that is to say, that they were not only false in fact, but that they were made with the intent to deceive.
    This intent may be inferred from evidence showing that the party making them knew of their falsity at the time, or at least professed knowledge of their truth, when in point of fact he was conscious that he had none. But in either case falsehood uttered with intent to deceive is essential.

    The presumption is in favor of innocence, and on that account the intent or design to deceive the plaintiff must be affirmatively made out by evidence (Wakeman v. Dailey, 51 N. Y. 27; Chester v. Comstock, 40 N. Y. 575, 576 [note]; Marsh v. Faler, Ib. 562; Weed v. Case, 55 Barb. 547).
    Appeal from a judgment.

      The facts and points in the case appear fully from the opinion of the court.

      Edward D. McCarthy and George W. Van Slyck, for appellant.

      T. C. T. Buckley and Jas. K. Hill, for respondents Luling, Taylor, and Calkin.

      James P. Lowrey, for respondent Bellows.
   By the Court.—Freedman, J.

This is an appeal by plaintiff from a judgment entered upon the dismissal of his complaint at the trial before the court and a jury. The action was brought against the defendants as incorporators and directors of a company formed, pursuant to the general laws of the State of New York, for ocean steam navigation, under the name of “ The New York and Bremen Steamship Company; and the complaint charged them, first, with fraudulently and corruptly combining to organize said company for the purpose of deceiving such of the public as might be induced to become stockholders therein; and secondly, with inducing, by false and fraudulent representations, the plaintiff to purchase twenty-seven shares of the capital stock of the par value of $100 each.

The evidence showed that the plaintiff was originally a stockholder and creditor for work done of a steamship company called “The North American Lloyd,” which owned three steamships, named Atlantic, Baltic, and Western Metropolis, for which the sum of $965,000 had been paid or secured to be paid. None of the defendants were stockholders in this company except Calkins ; but the Pacific Mail Steamship Company held a first purchase-money mortgage on the Atlantic and Baltic, and the defendant Charles Luling, on behalf of his house here and some of his correspondents abroad, was a large creditor, and as such held subordinate mortgages upon the three steamships. In the fall of 1866, in consequence of the German war, the company failed with liabilities amounting to about $1,400,000, and Calkin was appointed receiver. Among the said liabilities was one of $5,000 to the plaintiff, which was entirely unsecured.

Luling and the Pacific Mail Steamship Company then determined to foreclose their respective mortgages in order to acquire a title which would be not only absolute upon its face, but would also be free and clear from the claims of the general creditors of the North Amer-can Lloyd. This was accordingly done, and the three steamships were sold and bought in by the defendant Taylor, in their interest and on their behalf. Their further design in doing this was to form a new company, into which the said steamships were to be put, and the shares of which were to be divided between Luling and the Pacific Mail Seamship Company in certain proportions, as provided by a written agreement entered into for that purpose.

In pursuance of such agreement, the New York and Bremen Steamship Company was formed, with a capital stock of $1,000,000. This stock was subscribed for by seven persons, as follows: Francis Skiddy, $5,000; Charles Luling, $140,000; F. W. G. Bellows, $5,000; John T. Hanneman, by Charles Luling, $5,000 ; Harvey C. Calkin, $5,000 ; James K. Hill, $5,000 ; Isaac Taylor, $835,000. They met, and they executed, and on the 24th of January, 1867, filed a certificate of incorporation as required by statute, and the defendant Taylor was elected president and treasurer.

To this company Taylor offered to sell the three steamships in question for $1,000,000 in cash and the assumption by the company of the payment of the claims held by Luling and his correspondents against the North American Lloyd and the Steamer Western Metropolis, less $150,000 subscribed by Luling for himself and Hanneman for the stock of the new company. This offer was accepted by the board of directors of the company, and Taylor as treasurer was directed to pay to himself individually the said sum of $1,000,000, upon the receipt of a conveyance of the ships. The conveyance was made, and the manner in which the subscriptions were paid in and the money paid over to Taylor was as follows: The Pacific Mail Steamship Company, undertaking to pay for the subscriptions of Taylor, Calkin, Skiddy, and Bellows, handed to Taylor on four separate occasions between the 30th of January and the 20th of February, 1867, checks to the aggregate amount of $850,000. As each check was received it was deposited .by Taylor in bank to the credit of the company, and thereupon a check for an equal amount was drawn by Taylor as treasurer to his own order, and that was endorsed and delivered by him to the Pacific Mail Steamship Company. Luling, undertaking to pay for his subscription and that of Hannesnan and Hill, on the 23d of January, 1867, handed to Taylor a check for $150,000, which was also deposited by Taylor in bank to the credit of the company, and out of the proceeds of which $110,000 were paid to Duncan & Sherman, in satisfaction of a mortgage held by them on the Western Metropolis, which as between the company and himself Luling was bound to satisfy. The remaining $40,000 were retained to work the line.

It was also a part of the original arrangement under ■which the Few York and Bremen Steamship Company was gotten up, that'any creditor of the Forth American Lloyd who desired so to do might acquire an interest in the new company by the purchase of stock at fifty ■cents on the dollar and the transfer of his claim. The ■plaintiff, as such a creditor, elected to avail himself of this provision to the extent of taking $2,700 worth of zaew stock. In order to give him that amount, Taylor, who held the stock subscribed for by him in the form of a certificate issued to him as trustee, surrendered the same, and had new certificates issued in place thereof. One of these, representing plaintiff’s stock, was issued directly to the plaintiff on the 20th of March, 1867, and he paid for it by giving Taylor a check for $379, his note for $1,000, payable six months after date, and a-transfer of his old claim.

On the 23d of March, 1867, a second certificate was. filed, which had been executed by the defendant Taylor as president, and by the defendants Luling, Bellows, and Calkins as a majority of the Trustees of the Mew York and Bremen Steamship Company, and which stated that the whole of the capital stock of said company had been paid in.

On the 31st of March, 1867, the company, in pursuance of the terms of its purchase, gave a mortgage to Charles Luling and Company on the 'three steamships, to secure the sum of $330,126.67, being the balance due to Luling and his correspondents from the Morth American Lloyd, with the 150,000, the amount of their stock subscriptions, deducted.

The Mew York and Bremen Steamship Company did not prosper, and the Pacific Mail Steamship company refusing to furnish any more means to carry on the line, it was on the 27th of February, 1868, resolved to wind up its affairs. All current expenses and debts having been paid, and there being no creditor outside of the parties who had gotten it up, the company ceased to do business. The steamships were sold, and the proceeds applied to the payment of the mortgage held by Luling, and all parties lost what they had put in.

There was no proof that a prospectus had ever been issued, or that subscriptions for the stock had been solicited or authorized by the company to be solicited, or that any stock was sold to outside parties. The whole arrangement seems to have been a scheme by the two heaviest and preferred creditors of an insolvent corporation to reorganize it upon the basis of the property to be saved, and the other creditors had their election to come in upon certain conditions. Bow whether these conditions were fair or otherwise, whether in the organization of the new company the requirements of the law of this State as to the payment of the capital stock in cash were really complied with or evaded by a mere technical performance, whether the directors of the new company observed reasonable care and caution in the management of the affairs of the company, or were guilty of recklessness, extravagance, and excessive liberality in purchasing the three steamers at the price paid therefor and in assuming the payment'.of Luling’s claims against the same, or whether the creditors of such new company, if any existed, could or could not question the validity of the mortgage' subsequently executed to Luling, under which the entire property was finally swept 'away, are questions whicli do not necessarily control the final decision of this case.

They fail, standing alone, to show fraud, while it is upon fraud that plaintiff relies as his cause of action. They are, therefore, mere circumstances to be considered and weighed with the other testimony in the case. But plaintiff’s evidence, when considered even in this entirety, fell quite short o'f establishing that the Bew York and Bremen Steamship Company was organized by the defendants with the intent of deceiving and "cheating the public or any of the creditors of the Borth American Lloyd by palming off upon them worthless shares of its stock. Fraud, in a case like this, cannot be presumed, but must be affirmatively established. The certificate which stated that the capital had been fully paid in was filed after plaintiff had completed the purchase of his stock, and consequently he cannot lave been misled by it.

The only remaining inquiry, therefore, relates to the representations, if any, that were made to the plaintiff' at the time he took the stock. His testimony npon this point shows that in relation to this matter he had no-conversation with the defendants Luling and Bellows, or any one on their behalf, and the complaint was therefore properly dismissed as against them.

As to Calkin and Taylor, plaintiff showed that the-first intimation of the formation of the new company which he received came from Calkin, who informed the-plaintiff that he, the plaintiff, conld come in and convert his old claim into new stock by a payment of fifty cents, on the dollar. The plaintiff inquired what Calkin thought about it, and the latter replied: “It is a good “company; we have formed it; the capital is all paid “in. You go to Ho. 40 Broadway to Isaac Taylor and “ get new stock for your old claims, and you will get “the work of the new company. It is going to be the “biggest company in Hew York.” Plaintiff thereupon did go to the place named and there told Taylor what Calkin had said, and Taylor replied: “That is so. The “ capital stock is all paid in. Everything is all right, “and we will go on swimmingly.” On his cross-examination, plaintiff admitted that he had no doubt that whatever Calkin said to him, he, Calkin, believed to' be true, and that whatever Calkin or Taylor told him, he, the plaintiff, understood to be mere matter of opinion as to the condition and prospects of the company. In this connection it is to be observed that the-defendant Taylor, who had been called as a witness on. behalf of the plaintiff, testified on his cross-examination, that at the time of the organization of the company he believed that the enterprise would prove a success. For such representations no action lies. For before a plaintiff in an action like this can recover, it is essential that he should satisfactorily prove that the representations were fraudulently made, that, is to say, that they were not only false in fact, but that they were made with the intent to deceive. This intent may be inferred from evidence showing that the party making them-knew of their falsity at the time, or at least professed knowledge of their truth when in point, of fact he was conscious that he had none. But in either case, falsehood uttered with intent to deceive is essential. The presumption is in favor of innocence, and on that account the intent or design to deceive the plaintiff must be affirmatively made out by evidence (Wakeman v. Dailey, 51 N. Y. 27; Chester v. Comstock, 40 N. Y. 575, 576 [note]; Marsh v. Falker, Ib. 562; Weed v. Case, 55 Barb. 547). Of course such intent or design can only be proven by facts and circumstances, but one of these must clearly show wilful falsehood. When that is brought home the other facts become tainted by it and may all be construed in the light which the intentional falsehood casts upon them. But without it the presumption of fair dealing will control. The statement that the capital stock had been all paid in was at least technically true, and the other statements involved mere matters of opinion. Plaintiff’s proof was therefore not only deficient upon the question of fraudulent intent, but also upon the question of the falsity of the representations as to existing facts.

Moreover, it fully appeared by Taylor’s testimony, and without contradiction by the plaintiff, that Taylor told and explained to the plaintiff the organization of the company; that plaintiff knew as much about it as Taylor did; that among other things Taylor told plaintiff that the money given by the Pacific Mail Steamship Company had been returned, and that under the circumstances the company did not have a working capital. And finally it appeared that plaintiff was acquainted with the trade and with steamships and their value ; that the three steamers in question were really worth over §500,000 ; that the plaintiff by the purchase of his stock, and as part of the bargain for its purchase, secured the painting of said steamers; that he performed .between $4,000 and $5,000 worth of work on them; that he paid his note of $1,000 with bills for part of such work, and that he received his money for the balance.

Upon the whole case it is therefore impossible to arrive at the conclusion that the plaintiff was induced to purchase the stock by means of and in reliance upon representations which were false and fraudulent within the true and legally established meaning of these words.

The complaint was properly dismissed against all the defendants, and as the other exceptions in the case cannot affect the final result, the judgment appealed, from must be affirmed, with costs.

t Barbour, C. J., and Monell, J., concurred.


text:
    CARLISLE NORWOOD, Receiver of THE LORILLARD FIRE INSURANCE CO., Plaintiff, v. THE RESOLUTE FIRE INSURANCE CO., Defendant.
    The Lorillard Eire Insurance Company insured “Gage Bros. & Rice” against loss'or damage by fire to the amount of $15,000 on specified property.
    The Resolute Eire Insurance Company (defendant) made its policy, in which they do “ re-insure Lorillct/rcl Fire Insurance Company, on property of Qctge Bros. & Rice, against loss or damage by fire, to the amwunt of $5,000,” the property being the same described in the policy made by the Lorillard to Gage Bros. & Rice.
    In this policy, after the description of the property, was written, “ Loss, if any, payable pro rata with the reassured.
    One of the printed conditions in the same was as follows : 11 Re-inswance in case of loss to be settled, in proportion as the sum reinsured shall bear to the whole sum covered by the re-inswed company." The controversy relates to the ’construction of the written clause, “Loss, if any, payable p>'0 rata with the reassured.”

      Before Monell, Curtis, and Sedgwick, JJ.

      Decided December 31, 1873.

      Meld, That this clause should be construed as if it contained the following words: “ The loss under this policy is payable by the Resolute Eire Insurance Company pro rata with the loss payable by the Lorillard Company under the primitive policy.”
    It is the equivalent of saying that the Resolute is Tbound to indemnify the Lorillard in the same proportion that the Lorillard is bound to indemnify Gage Bros. & Rice, or that the Lorillard loss is payable pro rata or proportionally with the loss payable to Gage Bros. & Rice by the Resolute. *‘ Loss playable ” is a technical term, and means that the loss is to be paid, and in this case refers to two losses. First, the loss specified in the policy of re-insurance; second, the one provided for in the primitive policy. The Resolute is to pay to the Lorillard the first, in the same ratio as the Lorillard is bound to pay the second, or the loss of Gage Bros. & Rice.
    Therefore, if in case of loss under the primitive policy, the Lorillard becomes bound to pay, not the whole value of the sum insured, but a percentage or fraction of the same; then and in such case the Resolute, in paying the loss of the Lorillard, is bound to pay the same percentage or fraction of the sum covered by the policy of re-insurance.
    Verdict under the direction of the court, and the exceptions ordered to he heard in the first instance at the General Term.
    The facts and points decided in the case appear fully in the opinion of the court.

      Carlisle Norwood, Jr., for plaintiff.

      Daniel D. Lord, for defendant.
   By the Court.—Sedgwick, J.

The Lorillard Fire Insurance Company insured ■ ££ Gage Bros. & Bice i£ against loss or damage hy fire to the amount of fifteen i£ thousand dollars ” on specified property. The defendant, The Besolute Fire Insurance Company, made its policy in which they do ££ re-insure Lorillard Fire Insurance Company on property of Gage Bros. & Bice. “ against loss or damage by fire to the amount of five “thousand dollars,” the property being that specified in the policy made by the Lorillard.

In the policy of re-insurance there was written the words “loss, if any, payable pro rata with the re-assured.” The other conditions and agreements of the policy were printed. One of these was “re-insurance in case of loss to be settled in proportion as the sum re-insured shall bear to the whole sum covered by there-insured company.”

The controversy relates to the construction of the written clause “loss, if any, payable pro rata with the reassured.” Evidently this is elliptical, and words must be supplied to find its meaning. There is no sense in the words “ the loss is to be paid with the Lorillard Insurance Company, ” “or the loss is to be paid proportionally with the Lorillard Fire Insurance Company.” If you suppose that this obscurely, although by an incorrect use of words, intimates that the Resolute Company is to pay the loss with or.proportionally with the Lorillard Company, there would then be a reference to but one loss, viz. : that which was the subject of the policy of re-insurance. It is not meant that this should be paid to the Lorillard by the Resolute and the Lorillard, each paying a certain portion of it. The loss mentioned it was intended should be payable pro rata with something else than itself. The parties had in view two losses: one, and that which was specified, was provided for by the policy of re-insurance ; the other, and which must be understood, was provided for by the primitive policy.

“Loss payable” is a technical term. The insured suffers a loss. The insurer of course does not pay this loss itself. A sum of money is paid, or agreed to be, as an indemnity for the loss. Policies provide how this sum shall be fixed, and when it is paid the usage is to say that it pays the loss, although it may be that the sum paid is not in fapt a compensation for the whole loss. The clause in question had in view this character of the two losses payable. It should be read as follows: the loss under this policy is payable by the Resolute pro rata with the loss payable by the Lorillard under the primitive policy.” It is the equivalent of saying that the Resolute is bound to indemnify the Lorillard in the same proportion that the Lorillard is bound to indemnify Gage Bros. & Rice.

Other cases which have involved the construction of a clause partly like this, differ from it because the words in these were “pro rata and at the same time.” We have not to consider what would be meant by these latter words. They are not before us. The clause here simply says that the Lorillard loss is payable prorata or proportionally with the loss payable to Gage Bros. & Rice. The defendants here insist that the stipulation refers to the fact of payment by the Lorillard— that the Resolute is to pay with the Lorillard, i. e. at the same time with or cotemporaneously. This is supported only by th e use of the word ‘ ‘ with. ’ ’ If the word “as” had been used, or “in proportion to,” instead of “prorata with,” I do not think there would be any doubt that the reference was to the amount of the loss to be paid, and not to the time of its payment.

It is, however, argued that the amount to be paid by the re-insurers is meant to be fixed by the fact of payment of the loss under the primitive policy, and that until the latter is paid there is no way of fixing what the defendants are to pay. The defendant’s counsel contend that the claim means “that the loss is to be “ paid by the re-assurers in the same ratio as it is paid “by the re-assured.” We think that the first mistake here is not making the clause refer to the two losses that we have noticed. There is, however, another mistake that more closely concerns the immediate point considered. “Payable” is expressive of obligation to pay. “Loss payable” means loss to be paid, inasmuch as the insurer contracts that the loss shall be paid. The same element is present in the “loss payable” by the Lorillard ; so that instead of saying “ the same ratio as it is paid” it should be, “in the same ratio as it is to be paid” by the Lorillard, i. e. in the same ratio as the Lorillard is bound to pay the loss of Gage Bros. & Rice.

Therefore, if in case of loss under the primitive policy the Lorillard should be bound to pay, not the whole of the sum insured, but a percentage of that, then the Resolute is bound, in paying the loss of the Lorillard, to pay, the same per-centage of the sum covered by the policy of re-insurance. This construction sustains the rulings made by the learned judge at the trial, the exceptions to which are the subject of this appeal.

We do not see how any other construction can be maintained. The other only alternative would be to reject the claim altogether as uncertain and vague. It is said that the clause should not be interpreted in this way because such a provision is made in other parts of the policy which are printed, and this should be held to mean something more, especially as it is in writing. Without going into unnecessary particulars, we say that from a survey of the whole policy, it does not appear that it has been framed with the purpose of giving to the provision separately a separate meaning, so that each shall do a particular service. The contrary appears. The clause in question is so obscure, that we cannot see that it was meant intentionally to vary the general obligation of the re-insurer, that is, to pay the sum which it became bound to. pay, before the re-insured had made any payment on the policy issued by it. And in its obscurity if we give it any interpretation, it is one which presents no ambiguity. We could not, therefore, simply because the other parts of the policy make a similar provision, decide that the clause should he made to signify what in fact it does not.

The exceptions should he overruled, and the plaintiff have judgment on the verdict, with costs.

Monell, and Curtis, JJ., concurred.


author: By the Court.—Vah Vorst, J. Barbour, C. J. (dissenting).

text:
    CHARLES GUIDET, Plaintiff, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, Defendant.
    A contract or agreement between the assignor of the plaintiff and the defendant, by The Groton Aqueduct Bowrd, for paving a portion of Third Avenue, authorized the said board to appoint such person or persons as they shall deem necessary to inspect the materials fimmished and the work done under the agreement.

    The contract also provides that the contractor shall not be entitled to receive payment for any portion of the work until the same shall be fully completed according to the agreement, and such completion duly certified by the inspectors employed on the work, and by the water surveyor;

      Held, That unless the plaintiff produced on the trial the certificate of the inspectors and the water purveyor provided for in the contract, or satisfactorily accounted for or excused their production, he could not recover.
    It was the duty of the Croton Aqueduct Board to keep inspectors on the work, and when the work was fully completed according to the contract, to cause said inspectors, on the application of the plaintiff, to furnish Mm such certificates, and if there was any unreasonable or obstinate refusal on the part of said.board to perform tMs portion of the contract, such refusal would constitute an excuse for the non-production of the inspector's certificate.

    When the strict performance of a condition precedent is unreasonably prevented by the other party, its ijerformance should be excused (see cases ■ cited in the opinion of the court).
    Tn the case at bar, the opinion of the court indicates that the absence of the certificate of the inspectors might be excused under the proofs, but the non-production of the certificate of the water purveyor was not accounted for nor excused, and was a fatal objection to the plaintiff’s right of recovery.

      Before Barbour, Ch. J., and Curtis and Van Vorst, JJ.

      Decided December 31, 1873.
    The water purveyor did not hold his appointment under the Croton Board, but was an independent officer appointed by the Board of Alderman (Laws of 1849, p. 539, § 7).
    He was the chief officer of a distinct bureau, and charged with specific duties, and among others, with the superintendence of paving, repaving, and repairing streets (Hoffman's Laws of N. Y. vol. 1, p. 378).
    The office' of water purveyor was not abolished by the provisions of the act reorganizing the local government of the city of New York passed April 5th, 1870, hut its continuance recognized by that act.
    The right of the plaintiff to demand and receive payment for the work performed under the contract depends upon the production of the certificate from the water purveyor, and the stipulation in the contract in respect thereto is binding and obligatory upon the plaintiff.
    The certificate of the Commissioner of Public Works provided for in the Laws of New York, 1871, vol. 3, p. 1335, and that of the commissioners under chapter 580 of the Laws of 1873, vol. 3, p. 1413, to the effect that they are satisfied that no fraud has been perpetrated in relation to said contract, or in the performance thereof, will not render the production of the certificate of the water purveyor unnecessary.
    This action came on for trial before Judge Sedgwick at a trial term of the court in June, 1873. At the close of the trial, defendant’s counsel moved to dismiss the complaint, on the ground of the failure of the plaintiff to put in proof required "by the contract, to wit, the certificate of the inspectors appointed by the Croton Board and by the water purveyor.
    After hearing argument, the court said :
    The question arises under an agreement made'by the plaintiff in this case, one clause in which says that he “ shall not be entitled to demand or receive payment for any portion of the aforesaid work or material until the same shall be fully completed in the manner set forth in the agreement, and each and every one of the stipulations hereinbefore mentioned are complied with, and such completion duly certified by the inspectors employed on the work and by the water purveyor.” There is an absolute agreement on the part of the plaintiff, into which he had the option to enter or refuse to enter. A strict application of the rules of law would require that the ordinary rules applying to contracts be applied to that, and that there are no contingencies under the contract under which he could recover when a breach of it was shown. But passing that by (and perhaps substantially it would be right to do so, and to consider that in connection with the other articles of the agreement as merely one of the conditions upon the occurrence of which he should be entitled to payment), it seems to me that the law is clear that he must comply with the condition or else account for not having "complied with it. Now, taking the cáse of Smith v. Sherry, the point of that case is, that after the contractor shall have proved the performance of the work, it is sufficient to entitle him to payment if he shows that he endeavored to obtain from the person named in the contract as the one to give the certificate a certificate, and that he “absolutely” (as one phrase has it), or another “unreasonably and in bad faith” refused to give it. Has there been in this case an equivalent of that proof in every respect ? In my judgment there has not. Mr. Gruidet, wrongfully or rightfully (I do not pass upon that), sees a public officer in charge of the work, a man named McConkey, directing two inspectors to lay a double line of guide-stone. He does not give any evidence here which satisfies me one way or the other who was substantially in the right or in the wrong. Mr. Gruidet may be in the right, or Mr. McGonkey. Thereupon, instead of attempting to perform the contract in good faith, under the terms and stipulations of the contract, under all the checks imposed by the contract (and the checks imposed by the contract are by no means the least important part of it), he chooses, in a phrase that to ray mind describes the matter, to “abandon” the contract under the Croton Aqueduct Department, and under an arrangement with the mayor and comptroller to go on with it as soon as they sent inspectors appointed by them and not by the Croton Aqueduct Department. During the continuance of that contract, so far as the evidence shows, he never applies to' the Croton Aqueduct Department to have inspectors put on the work. In going on with the work under the mayor and comptroller, it appears to me, he dispensed with the Croton Aqueduct Department proceeding further to appoint Inspectors. What could they do ? Mr. Guidet, in the performance of the work, did not hold himself responsible to. them. He had stopped work; he had gone there and received the directions of the mayor; and as soon as inspectors were appointed by the mayor and comptroller, he proceeded with the work under their directions. How, in substance, it was a condition of things that had never been provided for by this contract,, and therefore, in my judgment, the plaintiff has not satisfied the terms of his obligation to procure the certificate of the inspectors employed on the work.
    Then, as to the water purveyor, I fail to see any evidence why his certificate was not procured, or that it was unreasonably denied. There is an absence of evidence on both these branches, and therefore, in my judgment, the complaint in this case should be dismissed.
    Exceptions ordered to be heard in the first instance at the general term.

      Edmonds & Field, for plaintiff.

      E. Delafield, Smith, counsel to corporation, for defendant.
   By the Court.—Vah Vorst, J.

When the plaintiff rested his case, the defendant moved to dismiss the complaint on the ground of the failure of the plaintiff to put in proof the certificate of the inspectors appointed Tby the Croton Board and by the water purveyor required by the contract.

The motion was granted, the complaint dismissed, and the plaintiff excepted.

The contract entered into between the defendants, by the Croton Aqueduct Board, party of the first part, and James Saxton, party of the second part, under which the work and materials are claimed in the complaint to have been done and furnished by the plaintiff, provided among other things that the Croton Board should “appoint’’'' such person or persons as they might deem necessary to" properly inspect the materials to be furnished and the work to be done, and to see that the same corresponded with the specification set' forth in the contract. Such inspectors were to supervise each subdivision of the work, “whether such subdivision be the cutting of the blocks, or the excavation for and preparation of the foundation, or the laying of the pavement, or otherwise.’ ’

It was also provided in the contract “ that the party of the second part should not be entitled to demand or receive payment for any portion of the aforesaid work or materials until the same shall be completed in the manner set forth in the agreement, and each and every one of the stipulations therein mentioned were complied with, and such completion duly certified by the inspectors employed on the work, and by the water purveyor, whereupon the party of the first part should pay, etc.”

In Smith v. Brady (17 N. Y. 173), the provisions of the contract were that the balance of the moneys was to be paid thereunder “when all the work should be completed, and certified by the architect to that effect.”

In that case the work was held to be substantially completed in fact; yet as the parties had agreed to make the production of such certificate a condition precedent to the payment, the plaintiff was-held hound by that provision in the contract as any other.

Unless, therefore, the plaintiff produced on the trial the certificates of the inspectors and water purveyor provided for in the. contract, or has satisfactorily accounted for or excused their production, the ruling of the learned judge was correct, and the' complaint properly dismissed.

The right was reserved to the Croton Board under the contract “ to appointand it was their duty to keep inspectors on the work, and upon application by the plaintiff when the work was fully completed, according to the contract and specifications,to cause the inspectors to furnish such certificates, and if there was any unreasonable or obstinate refusal to furnish same, the plaintiff having faithfully performed his contract, such refusal would constitute an excuse for the non-production of the inspectors’ certificate.

When the strict performance of a condition precedent is unreasonably prevented by the other party, its performance should be excused (People v. Bartlett, 3 Hill, 570 ; Niblo v. Binsse, 44 Barb. 54; Moses v. Bierling, 31 N. Y. 462; Glacius v. Black, 50 N. Y. 148 ; Cohen v. Mutual Life Insurance Co., 50 N. Y 621).

There was no evidence of any distinct "appointment of inspectors for the work by the Croton Board. The result of an examination of their records fails to show any designation of persons for this service.

The legitimate manner in which bodies, such as the Croton Aqueduct Board should act in the public interest in a matter of this character, would properly be evidenced by some formal records, which would leave no room for doubt or controversy as to the persons appointed and authorized to perform the service of inspection.

But the evidence shows that after the plaintiff had collected on the ground the stone and material for the whole work, and had prepared the road bed for the pavement, and on the morning, and as soon as he began to lay the stone blocks, one McCoskey, ‘ in the employment of the Croton Board,” gave directions to two young' men, whose names are not given, who were there as inspectors, to pave with two rows of guide stones.

How these men were appointed does not appear.; but they acted under McCoskey. - ■

This direction was unsatisfactory to the plaintiff, who removed the- second, and commenced to pave with one tow of guide stones.

McCoskey then gave directions to the inspectors to stop inspecting the work, and they stopped.

The work was suspended for a few days, when by the direction of the mayor, or “ other city authorities,” other inspectors were sent to the work, which was resumed by the plaintiff, and was completed in ¡November, 1869, and within the time prescribed in the contract.

The new inspectors, with a city surveyor, Bozle, remained on the work until its close. The inspectors furnished to the plaintiff certificates of inspection, which were by him filed with the comptroller, with the certificate of Bozle, the surveyor, and the plaintiff received from the financial officer of the city in ¡December, 1869, the sum of one hundred and four thousand dollars, being seventy per cent, of the contract price for the work .and materials, leaving still due thereon a balance of forty-six thousand three hundred and eighty-seven dollars, for which this action is brought.

It.may well be questioned whether McCoskey was justified in removing the two inspectors under the cir-cumstances detailed in the evidence, and whether he was right in insisting that the contractor should pave with two rows of guide stones. There is nothing in the ■contract or specifications which requires such method of, doing the work, nor is there anything in the case from which it appears that it was necessary for the completion of the work according to the contract, that two rows of guide stones should be used.

There is a clause in the contract which provides " that if, at any time, the said board shall be of opinion, and shall so certify in writing, that the said work or any part thereof is unnecessarily delayed, or that the said contractor is wilfully violating any of the conditions or covenants of this contract, or is executing the same in bad faith, they shall have the power to notify the aforesaid contractor to discontinue all work under the contract, or any part thereof, and thereupon the said contractor shall cease to. continue said.work,” etc.

But the evidence fails to show that the board did at any time " certify ” in writing that they were of opinion that the contractor was wilfully violating any of the conditions or covenants of the contract, or that he was-executing the same in bad faith.

The adoption of a preamble and resolution on the subject, and the service of a paper, purporting to be a. copy thereof, on the plaintiff, signed by their secretary, is not such a certifying of an opinion by the board as is required by the contract, so as to justify a discontinuance of the work by the contract.

The requirement of the contract in this regard could be best answered by a writing' expressing the opinion of the board signed by its members. Justice to the contractors and their own responsibilities in the premises would seem to demand that.

The evidence shows that the work was well done, and according to the contract and specifications.

And if the only difficulty in the case was the non-production of certificates of inspectors shown to be ap-. pointed by the Croton Board, it might well be held that the certificates of “the inspectors employed on the work” would be sufficient under all the circumstances of this case, and would dispense with the production of others. For, as has already been observed, it was the duty of the Croton Board “to appoint” and keep inspectors on the work, which was not done.

But the non-production of a certificate from the •‘water purveyor” is not accounted for or excused, and would appear to be a fatal objection to the plaintiff’ s right of recovery. The “ water purveyor ” did not hold his appointment under the Croton Board. He was an independent officer, appointed by the Board of Aldermen, Act of April 11, 1849 (Laws of N. Y., 1849, p. 539, § 7). He was the chief officer of a distinct "bureau. This officer was charged with specific duties, amongst others with the superintendence of paving, repaving, and repairing streets (Hoffman's Laws of N. Y, vol. 1, 278). Ñor was the office abolished by the provisions of the act reorganizing the local government of the city of Hew York, passed April 5, 1870, when the Department of Public Works was created, into which the Croton Board was merged. The continuance of such "bureau and distinct chief officer is recognized by that act (Laws of N. Y.0, 1870, vol. 1, pp. 384, 385, § 77, 79).

■ It is true that the plaintiff on the trial stated that he thought there was no such officer at the time,—that he had not seen him on the work.

But the legal presumption is that the office was filled, and the witness Dork swears distinctly that Hanforth Horton was “water purveyor” in the year 1869.

The right of the plaintiff to demand and receive payment depends as much upon the production of a certificate from the “water purveyor” to the completion of the work in the manner set forth in the contract as from the inspectors. It is an additional guard which the defendants had a right to interpose for the faithful performance of the contract, and the stipulations in respect thereof are obligatory upon the plaintiffs.

Heither the certificate of the Commissioner of Public Works provided for in the Laws of N. Y., 1871, (vol. 2,1235, latter part of § 5), nor the certificate of the commissioners under chap. 580 of the Laws of N. Y., 1872 (vol. 2, p. 1412), certifying that “they are satisfied that no fraud has been perpetrated in relation to said contract or in the performance thereof,” dispenses with the-production of such certificate from the “ water purveyor.”

The judgment appealed from should be affirmed, with costs.

Curtis, J., concurred.

Barbour, C. J. (dissenting).

It was the duty of the contractor to procure such a certificate from the inspectors and water purveyor as the contract provides for, and the production of that certificate by him was a condition precedent, without which he could not claim payment. But a certificate signed by the purveyor only would not, have been a performance of the condition. It must have had the signatures of all. If, then, the acts of the city officials or their neglect to appoint inspectors, prevented the obtaining of the certificate of such officers, such act or omission on the part of the city rendered it impossible for the contractor to perform his condition precedent. And as that was caused by the act or fault of the party for whose benefit the provision was inserted in the contract, the contractor was thereby excused from the performance of such impossibility.

There is no doubt the work was done according to the contract. The defence has no merits, but is strictly technical, the defendant claiming that the contractor has not performed the condition which entitles him to payment by producing the certificate of the proper inspectors and purveyor.

The answer is perfect. “I c.ould not perform the condition, because the city refused or neglected to appoint or have the inspectors contemplated by the contract.”

The judgment should be reversed.


author: Per curiam.

text:
    THE FORTY-SECOND STREET AND GRAND STREET FERRY RAILROAD COMPANY, Plaintiff and Respondent, v. J. WILLIAM GUNTZER, Defendant and Appellant.
    Before Barbour, Ch. J., Monell and Freedman, JJ.

      Decided November 29, 1873.
    I.—Security for Costs given on Behalf of Infant Plaintiff.
    1. What is covered by.

      a. The costs on appeal to the General Term as well as the costs below are secured thereby.
    1. Where the condition of the bond was “that the obligors should pay on demand all costs that might be awarded to the defendant”—
    Held,
    That the obligors were liable for costs of appeal to the General Term.
    Appeal from an order.
    This action was brought on a bond made by defendant and one John Schriefer, whereby they jointly and severally bound themselves pursuant to the statute in such cases made and provided in the sum of $250 to the plaintiff in this action or its assigns, the condition of the bond being that if the above-named defendant and said Shriefer should pay on demand all costs that might be awarded to the defendant (being the plaintiff herein) in a certain suit commenced in this court by Michael Shriefer, an infant, by his guardian, John Schriefer, then the bond to be void, else to remain in full force.
    The bond was given pursuant to an order of the court made in said action of Michael Schriefer.
    That action resulted in a judgment for the defendant therein for §159.16 costs. An appeal was taken to the General Term, which resulted in an affirmance of the judgment, and a judgment for defendant for §77.49, costs of appeal.
    The complaint in this action set forth the above matters and claimed-to recover the said two sums of §159.61 and §77.49.
    The defendant demurred to so much of the complaint as sought to charge him with the costs of appeal on the ground that it appeared that the complaint did not state a cause of action against him.
    At Special Term the demurrer was overruled, and an order was thereupon entered ordering that the demurrer be overruled, and that plaintiff have judgment thereon, but giving defendant leave to answer on payment of costs.
    From this order defendant appealed to the General Term.

      Jacob A. Gross, attorney and of counsel for appellant, urged:
    I.—The condition of the bond of defendant is “ To pay on demand all costs that might be awarded to the defendants in said suit.”

    This does not include costs of appeal to the General Term.
    1. The suit is at an end on entry of judgment, which is “ the final determination of the rights of the parties to the action” (Code, § 245; Bouvier's Law Dict. 12 ed., vol. 1. p. 78 ; 3 Sharswood’s Blaclcstone's Comm. 116).
    2. The designation of the parties as plaintiff and defendant (§ 70) ends with the judgment. On appeal they are to be designated as appellant and respondent respectively (Id. § 326).
    3. -The Code itself not only regulates the security to be given on the appeal, but prescribes the only penalties for neglect; the proceedings are not stayed (§ 348).
    4. The bond in question is expressly and only for the costs in the suit, and therefore differs from most others referred to in decided cases, which provide for full indemnity to the party injured (Bennet v. Brown, 31 Barb. 158, 162, and cases cited).
    II.—The decision at Special Term extends the undertaking of the surety beyond its terms, and violates the well established principles to the contrary effect (Rayner v. Clark, 7 Barb. 581, and cases cited; 3 Code P. 239; 3 Duer., 324).

      Ely & Smith, attorneys, and of counsel for respondent, urged:
    It is well settled that on a bond for costs, the sureties are liable for the costs of appeal as well as for those previously incurred. It is held that the bond cannot be prosecuted until the appeal is decided (Van Vleck v. Clark, 38 Barb. 31 ; 24 How. Pr. 190 ; Tibbles v. O’Conner, 28 Barb. 538).
    Besides, the language of the bond in suit covers “ all costs that might be awarded to the defendants in said action.”
   Per curiam.

The order below should be affirmed. The obligors on the bond are liable for the costs of the appeal to the G-eneral Term.

Order affirmed.


text:
    MARY LUDDINGTON, et al., Plaintiffs and Appellants, v. Abraham B. MILLER, et al., Defendants and Respondents.
    Before Barbour, Ch. J., Monell and Van Vorst, JJ,

      Decided May 3, 1873.

      A. H. Dana, for the motion.

      G. W. Lord, opposed.
    Opinion by Monell, J. Barbour, Ch. J., and Van Vorst, J., concurred in the conclusion.
   Motion to dismiss an appeal from an order made at Special Term, denying a motion for a new trial on a case.

Motion denied.


text:
    CHARLES H. SMITH, Plaintiff and Appellant, v. TIMOTHY J. COE, Defendant and Respondent.
    Before Barbour, Ch. J., Freedman and Sedgwick, JJ.

      Decided May 31, 1873.
   Action to recover a certain sum .($10,000) as liquidated .damages for the breach of covenants in a lease.

Charles H. Smith, appellant in pro. pers.

John H. Martin, attorney,, and Ira Shafer, of counsel, for respondent.

Opinion by Barbour, Ch. J. Freedman and Sedgwick, JJ., concurred.

Appeal from a judgment for defendant, and judgment affirmed.


text:
    ROBERT PALMER, Plaintiff and Respondent, v. DANIEL KELLY, Defendant and Appellant.
    Before Freedman, Curtis, and Van Vorst, JJ.

      Decided June 28, 1873.

      E. Brown, for appellant.

      L. A. Fuller, for respondent.
    Opinion by Curtis, J. Freedman and Van Vorst, JJ., concurred.
   Appeal from a judgment in favor of plaintiff, and from an order denying a new trial.

Action for the taking and conversion of personal property.

Judgment and order affirmed.


text:
    McCULLOUGH’S LEAD COMPANY, Plaintiff and Respondent, v. JOSEPH M. STRONG, Defendant and Appellant.
    Before Freedman, Curtis, and Van Vorst, JJ.

      Decided June 28, 1873.

      Philo Chase, for appellant.

      Ellias F. Hall, for respondent.
   Action to recover the possession of a U. S. "bond for $1,000.

Appeal from a judgment in favor of plaintiff.

Judgment affirmed.

Opinion by Curtis, J. Freedman, and Van Vorst, JJ. concurred.


text:
    DANIEL P. FITZGERALD, Plaintiff and Respondent, v. EDWARD D. VALENTINE, Defendant and Appellant.
    Before Freedman, Curtis, and Van Vorst, JJ.

      Decided June 28, 1873.

      Wm. W. Peck, and Wm. H. Newman, for appellant. E. Haines, for respondent.
    Opinion by Curtis, J. Freedman and Van Vorst, JJ., concurred.
   Action for conversion of personal property.

Appeal from a judgment in favor of the plaintiff.

Judgment affirmed.


text:
    JAMES F. BROWN, Plaintiff and Appellant, v. JOHN COMBES et al., Defendants and Respondents.
    Before Freedman, Curtis, and Van Vorst, JJ.

      Decided June 28, 1873.

      Goodrich & Wheeler, for appellant.

      Charles Whelp, for respondent.
    Opinion by Van Vorst, J. Freedman and Curtis, JJ., concurred.
   Action to recover value of property shipped to a commission merchant.

Appeal from judgment for defendant.

Judgment reversed.


text:
    JOHN KISSENGER, Plaintiff and Respondent, v. THE NEW YORK AND HARLEM RAILROAD COMPANY, Defendant and Appellant.
    Before Freedman, Curtis, and Van Vorst, JJ.

      Decided June 28, 1873.
   Action for damages for injury to property and person.

E. F. Shepard, for appellant.

M. L. Townsend, for respondent.

Opinion by Van Vorst, J. Freedman and Curtis, JJ., concurred.

Appeal from judgment for plaintiff.

Judgment affirmed.


text:
    JAMBS O’BRIEN, Plaintiff and Respondent, v. JAMES McCANN et al., Defendants and Appellants.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.

      David McAdam, for appellants.

      A. Oakey Hall, for respondent.
    Opinion by Curtis, J. Monell, and Sedgwick, JJ., concurred.
   Action upon an indemnity bond.

Appeal from a judgment for plaintiff.

Judgment affirmed.


text:
    CHARLES R. TOWNSEND, et al., Plaintiffs and Respondents, v. THE GLENS FALLS INSURANCE COMPANY, Defendant and Appellant.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided November 29, 1873.

      Howard Ellis, for appellant.

      O. E. Bright, for respondents.
    Opinion by Monell, J. Curtis and Sedgwick, JJ., concurred.
   Action to recover upon a policy of insurance for a loss by fire of a stock of goods, etc.

Appeal from a judgment for plaintiffs.

Judgment affirmed.


text:
    SIGMUND LINDLER, Plaintiff and Respondent, v. LEOPOLD SOLOMON et al., Defendants and Appellants.
    Before Monell, Curtis, and Sedgwick, ■ JJ.

      Decided November 29, 1873.

      Thomas Darlington, for respondent.
    Opinion by Curtis, J. Monell and Sedgwick, JJ., concurred.
   Action for dissolution of a copartnership.

Appeal from a judgment in favor of plaintiff.

Judgment affirmed in part, and vacated as to residue.

Edward Maokinley, for appellants.


text:
    JACOB CASPER, Plaintiff and Respondent, v. JAMES O’BRIEN, Defendant and Appellant.
    Before Barbour, Ch. J., Monell, and Freedman, JJ.

      Decided November 29, 1873.
    A. Oakey Hall, for appellant.

      R. S. Newcombe, for respondent.
    Opinion by Freedman, J. Barbour, Ch. J., and. Monell, J., concurred.
   Action to recover the value of property taken and. converted, etc.

Appeal from judgment in favor of plaintiff.

Judgment affirmed.


text:
    MICHAEL COLLIGAN, Plaintiff and Respondent, v. EDWARD P. SCOTT et al., Defendants and Appellants.
    Before Barbour, Ch. J., Curtis, and Van Vorst, JJ.

      Decided December 31, 1873.
   Action for work and labor.

John C. Connor, Jr., for appellants.

Erastus Cooke, for respondent.

Opinion by Curtis, J. Barbour, Ch. J., and Van Vorst, J., concurred.

Appeal from judgment in favor of plaintiff.

Judgment affirmed.


text:
    CHARLES F. HOLTZ, Plaintiff and Appellant, v. HENRY G. SCHMIDT et al., Defendants and Respondents.
    Before Barbour, Ch. J., Curtis and Van Vorst, JJ.

      Decided December 31, 1873.

      Charles Wehle, for appellant.

      Charles Tracy, for respondent.
    Opinion by Barbour, Ch. J.
    Dissenting opinion by Curtis, J.
   Action to recover damages for/breach of agreement.

Appeal from judgment in favor of defendant.

Judgment affirmed.