text:
    SAMUEL W. GEERY, Plaintiff and Appellant, v. JACOB H. V. COCKROFT, Defendant and Respondent.
    The property and effects of a copartnership or its personal property, such as goods, wares, and merchandise of a grocery store, cannot be sold, alienated, or its title divested from the firm by one partner to the personal creditor of the latter, in payment or on account of such partner’s debt to such creditor, without the knowledge and assent of the other partner or partners of the copartnership, and whether or not such creditor knew the same to be partnership property does not affect the question.
    The right and title of such creditor to the property of the partnership, thus sold and transferred to him by a member of the firm, who was his debtor, and on account of the personal debt of such member depends, not upon the knowledge or lack of knowledge of such creditor, that it was partnership property, but upon the fact whether the other partner or partners of the firm had assented to such disposition of the property or not.
    The cases of Dobb v. Halsey (16 Johns. 88), and Rogers ». Bacheler (12 Pet. 229), considered and commented upon.

      Decided February 4, 1871.
    Appeal from a judgment.
    The pleadings in this action consist of a complaint and answer, of which the following are copies.

      Complaint.

    “The plaintiff above named hereby complains against the above named defendant, and respectfully shows to the court—
    “That, at the times hereinafter mentioned, this plaintiff and one Arthur Kendall were copartners in trade, doing business in the city of New York, under the firm name and style of Geery & Kendall.
    ‘ ‘ That, as such copartners, the said Geery & Kendall sold and delivered to the said defendant, at his request, on or about the 26th day of June, 1868, certain goods, wares and merchandise, at the agreed price, and which said merchandise was reasonably worth the sum of sixty-seven dollars.
    “That on or about the 25th day of June, 1869, the said Arthur Kendall duly assigned all his right, title and interest in and to the said claim to this plaintiff, who is now the lawful owner thereof.
    “That said sum has not been paid, nor any part thereof, but the whole amount thereof is still due and owing to this plaintiff from said defendant, on account of said sale, although the same has been duly demanded.
    ‘ ‘ Wherefore this plaintiff demands judgment against said defendant for the sum of sixty-seven dollars and interest thereon from June 26th, 1868* besides the costs of this action.”

      Answer.

    “ And the defendant, for answer to the complaint in this action, by Charles N. Black, his attorney, denies that said Geery & Kendall, as copartners or otherwise, sold and delivered to the said defendant, and at his request, the goods, wares and merchandise, referred to in the said complaint, at the agreed price of sixty-seven dollars, or any other price, on or about the 26th day of June, 1868, or at any other time.
    ‘ And the defendant further alleges that he has not sufficient knowledge or information to form a belief as to the said alleged copartnership of said Geery & Kendall, or said alleged assignment set forth in said complaint, and, therefore, denies the same, and this defendant denies that said sum of sixty-seven dollars is due from the defendant to the said plaintiff.
    “Wherefore the defendant demands that said complaint be dismissed with costs.”
    The cause came on for trial before the court and a jury. The facts alleged in the complaint were substantially proved or admitted subject to this explanation. Upon the trial the facts alleged in the complaint were substantially proved or admitted subject to this qualification, or explanation. The goods sold consisted of two baskets of wine, and while Kendall was a member of the firm, and in June, 1868, were sold by Kendall to defendant, under the circumstances, detailed by him substantially, as follows:
    “I owed him (defendant) some money for interest on a note, and I offered to send him in payment of that interest, two baskets of wine, and I did so. The wine was taken from' the copartnership effects (Q-eery & KendaE). I suppose defendant knew I was a partner of the fu;m ; my name was above the door and it had been pubEshed in the papers. I sent defendant the wine, on a private account between me and him. He has never since paid me for the goods. It was a private transaction between him and me.”
    Matthew MEler, g coEector for Gfeery & KendaE, testified that in October, 1868, he caEed upon the defendant, to coEect this biE of wine, who asked witness how much it was. BiE introduced in evidence. Witness answered that it was sixty-seven doEars, and defendant said, “I will call up and settle with Mr. KendaE.” Afterwards, when he called, defendant told him, “ I do not owe any bEl.”
    On resting the case of the plaintiff the court directed the jury to render a verdict for the defendant, which they did and the appeal is from that ruEng and direction, and the judgment entered upon said verdict.

      H. F. Averill, attorney for appellant.

      Thomas Allison, of counsel.
    The evidence given on plaintiff’s behalf being wholly uncontradicted, and the court having peremptorily directed a verdict for defendant, the exception brings before the court the question whether or not as matter of law the plaintiff was entitled to a verdict on the facts. It is only where there is a dispute on trial as to the facts, that a party must request to have questions of fact submitted to a jury (Bunge v. Koop, 5 Robl. 11, opinion by Robertson, Ch. J. ; Sheldon v. Atlantic F. and M. Ins. Co., 26 N. Y. 465 ; Barnes v. Price, 12 Id. 22).

    The delivery by KendaE to the defendant of the two baskets of wine, belonging to the firm, to pay the interest due on Kendall’s separate account, to the defendant, was a sale of that wine.
    1. The parties to the transaction intended to transfer the title to the wine to defendant for a consideration. The only question is. as it was partnership property, could they agree that the price should be paid by canceling Kendall’s debt without G eery’s consent.
    2. The evidence as to defendant’s promise to settle the bill when presented by Geery & Kendall’s collector, was a sufficient evidence of a sale and delivery to defendant.
    3. Dobb v. Halsey (16 Johns. 34), was the same as the case now before the court, so far as the question whether or not a delivery of partnership effects by one partner to his separate creditor to pay his separate debt, will sustain an action for the sale and delivery of goods by the firm, is concerned. In Dobb v. Halsey, one partner, named Moore, offered to and did deliver partnership timber to his separate creditor to pay his separate note, and the creditor received the timber for the purpose of having his note paid, and delivered up to Moore the note, and paid him, in cash, the difference between the amount of the note and the value of the timber. Moore’s partners sued for the price of the timber as goods sold and delivered. The court held that defendant purchased the timber, and that the action was ex contractu, and Moore should have joined with his copartners in the suit (Dobb v. Halsey, 16 Johns. 34).
    The effects of a partnership cannot be applied by one partner to the payment of his separate debt without the assent of his copartner. If the effects of a firm be so applied, the question as to the liability of the creditor receiving them for such purpose, does not depend upon the creditor’s knowledge that they were partnership effects, but depends merely upon the fact whether or not the copartner other than the one to the payment of whose debt the effects were applied, assented to such application of the firm effects. The burden of proving this assent, is upon the creditor who receives partnership property for the separate debt of one of the partners.
    Spencer, J., in delivering the opinion of the court in Dobb v. Halsey, (16 Johns. 38), says: “This court has decided, in several cases, that where a note is given in the name of a firm, by one of the partners, for the private debt of such partner, and known to be so, by the person taking' the note, the other partners are not bound by such note, unless they have been previously consulted, and consent to the transaction (Livingston v. Hastie, 2 Caines, 246 ; Lansing v. Gaine, 2 Johns. 300 ; Livingston v. Roosevelt, 4 Id. 251). In Ridley v. Taylor (13 East, 175), the court of king’s bench held, that if one partner draw or indorse a bill in the name of the partnership, it will, prima facie, bind the firm, although passed by one partner to a separate creditor, in discharge of his private debt, unless there be covin between such debtor and creditor, or, at least, the want of authority, either expressed or implied, in in the debtor partner, to give the security of the firm' for his separate debt.
    “The only difference between the decision of this court and that of the king’s bench, consists in this : We require the separate creditor who has obiained the partnership paper for the private debt of one of the partners, to show the assent of the whole firm to be bound. The rule of the king’s bench throws the burden of avoiding such security on the firm, by requiring them to prove that the act was covinous on the part of the partner, for whose private debt the paper of the firm was given, by showing that it was done without the knowledge, and against the consent of the other partners, and that the fact was known to the separate creditor when he took the paper of the firm. I can perceive no substantial difference, whether the note of a firm be taken for a private debt of ohe of the partners by a separate creditor of the partner, pledging the security of the firm, and taking the property of the firm upon a purchase of one of the partners, to satisfy his private debt. In both cases the act is equally injurious to the other partners ; it is taking their common property to pay a private debt of one of the partners” (Dobb v. Halsey, 16 Johns. 38).
    Mr. Justice Story, in delivering the opinion of court, in the case of Rogers v. Bachelor (12 Pet. 229 and 230, says:
    “The first instruction raises these questions: whether the funds of a partnership can be rightfully applied by one partner, to the discharge of his own separate pre-existing debt, without the assent, express or implied, of the other partner ; and whether it makes any difference in such a case, that the separate creditor had no knowledge at the time of the fact of the fund being partnership property. We are of opinion in the negative on both questions. The implied authority of each partner to dispose of the partnership funds, strictly and rightfully extends, only to the business and transactions of the partnership itself; and any disposition of those funds, by any partner, ■ beyond such purposes, is an excess beyond his authority as partner, and a misappropriation of those funds for which the partner is responsible to the partnership ; though in case of bona fide purchaser, without notice, for a valuable consideration, the partnership may be bound by such acts. Whatever acts, therefore, are done by any partner, in regard to partnership property or contracts, beyond the scope and objects of the partnership, must, in general, in order to bind the partnership, be derived from some further authority, express or implied, conferred upon such partner, beyond that resulting from Ms character as partner. Such is the general principle ; and in our judgment, it is founded in good sense and reason. One man ought not to be permitted to dispose of the property, or bind the rights of another, unless the latter has authorized the act. In the case of a partner paying his own separate debt out of the partnership funds, it is manifest that it is a violation of Ms duty and of the rights of his partners, unless they have assented to it. The act is an illegal conversion of the funds; and the separate creditor can have no better title to the funds than the partner himself had.
    “Does it make any difference, that the separate creditor had no knowledge at the time that there was a misappropriation of the partnership funds? We think not. If he had such knowledge, undoubtedly he would be guilty of gross fraud ; not only in words but in.law. That was expressly decided in Sheriff t>. Wilks (1 East, 48), and, indeed, seems too plain upon principle to admit of any serious doubt. But we do not think that such knowledge is an essential ingredient in such a case. The true question is whether the title to the property has passed from the partnership to the separate creditor. If it has not, then the partnership may reassert their claim to it in the hands of such creditor.”
    The learned justice then discusses some of the English cases, and quotes wtth approval the opinion of Chief Justice Speeoer, in Dobb v. Halsey {supra), that the burden of proof is on the creditor who receives firm effects in 'payment of the separate debt of one of the partners, to show the assent of the other partners ; and at page 232, says : “ It is true, that the precise point now before us does not appear to have received any direct adjudication; for in all the cases above-mentioned, there was a known application of the funds or securities of the partnership to the payment of the separate debt. But we tMnk that the true principle to be extracted-from the authorities is, that one partner cannot apply the partnership funds or securities to the discharge of his own private debt without their consent; and that without their consent their title to the property is not divested in favor of such separate creditor, whether he knew it to be partnership property or not. In short, his'right depends not upon his knowledge that it was partnership property, but upon the fact, whether the other partners had assented to -such disposition of it or not.”
    --These opinions of Justices Story and Spencer establish the principles that where partnership effects are shown to have been applied by one partner, to the payment of his separate debt, the creditor receiving the same is liable to the firm as for goods sold and delivered, unless he shows the assent of the other partner to such application, whether such creditor knew that the goods were partnership effects or not. These opinions are approved law (Colly. on Partn. (Perkins’ ed.) § 501).

      Charles A. Black, for respondent.
    After the plaintiff had closed his case, the court directed the jury to find a. verdict for the defendant, and to this general direction the plaintiff excepted. The exception should be to some specific part of the charge, or to some specific request to charge.
    The case does not show the terms of the articles of copartnership between Kendall and the plaintiff (folio 34). Without this appearing it cannot be seen upon what testimony the court acted in directing a verdict for the defendant.
    It appears that Kendall owed the defendant one thousa-nd and nine dollars, and that he paid the defendant one year’s interest on this sum, with the two baskets of wine (folk 35, 36, 37, 38).
    - This payment was perfectly valid. There was no proof that the defendant knew that the wine belonged to the firm of Gfeery & Kendall. The testimony shows that the transaction was perfectly fair. There is no pretense that the defendant knew that the wine was misapplied, neither is there any testimony showing that it was misapplied.
    The presumption, from the testimony is, that the interest was paid from the private property of Kendall. That he had the right to use it in the manner which he did (Dobb v. Halsey, 16 Johns. 33-39).
   By the Court.—Spencer, J.

This appeal raises this question: Can the effects of a copartnership be applied by one partner to the payment of his private debt, without the assent of his copartner or copartners 1

I am of the opinion that they cannot; and that the title of the firm to property cannot be divested in favor of, or vested in, said separate creditor, without the assent of the other members of the firm. This principle was clearly established in Dobb ». Halsey (16 Johns. 38), although the cases are not parallel, so far as the character of the property and interest of the firm involved.

But the counsel for the respondent urges strongly that there is no proof in this case that defendant knew this was partnership property; and to make him liable as the purchaser from the firm, it must appear that he knew at the time he received it on his private debt, that it was partnership property.

There is some evidence that the defendant had such knowledge, but for the purpose of a decision in this case, I will assume an entire absence of proof on that point; and I hold that this ignorance or want of knowledge as to the property belonging to a firm, makes no difference.

if the effects of a firm be so applied, the question of the liability of the creditor receiving them, to account for and pay to the firm, does not depend upon the creditor having or not having knowledge of the same being partnership property, but depends upon the fact as to whether or not the copartners assented to the transaction.

The authority of a partner to sell and dispose of the firm effects extends only to the business and transactions of the partnership ; whatever he does beyond this that is claimed or that can be held to bind the partnership, must be based upon some authority, express or implied, or the intervention of some principle of law or equity beyond his general authority as a partner. If he gives the written obligation of the firm, or takes the chattels or goods of the firm, and applies the same directly, in payment of his private debt, he must have the assent of his copartners. He should not be permitted to dispose of their property or make them liable, unless he has been authorized by them so to do. It is true the firm may become liable to bona fide purchasers of their negotiable paper, or in like manner, they may lose title to their specific chattels, by reason of a bona fide purchase and payment of the same, in such manner as would prevent them from claiming title; but the latter questions do not arise here. The defendant parted with nothing. He received the specific property of Geery & Kendall, on account of the private debt of Kendall, due to him, without the consent or assent, or even knowledge of the other copartner (plaintiff Geery). I hold, that under the circumstances, the title did not pass from the firm, and the latter, or its assigns, may reassert title, and claim and recover the value of the property, ás if sold by them.

The opinion of Judge Stoby, in the case of Rogers v. Bachelor (12 Pet. 229, 230), is directly in point. He concludes his views on this point, by saying:

“But we think that the true principle to be extracted from the authorities is, that one partner cannot apply the partnership funds or securities to the discharge of his own private debt without their consent; and that without their consent their title to the property is not divested in favor of such separate creditor, whether he knew it to be partnership property or not. In short, his right depends not upon his knowledge that it was partnership property, but upon the fact, whether the other partners had assented to such disposition of it or not.”

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


source: Caselaw Access Project

author: By the Court.—Monell, J. McCunn, J. Jones, J.

license: Public Domain

text:
    JOSEPH TAUSSIG, and others, Plaintiffs and Appellants, v. JULIUS HART, Defendant and Respondent.
    The imposition of costs as a condition of granting a motion is such a benefit, that the acceptance of the same, and the subsequent action of the parties, based upon the order, waives the right to appeal from the order.
    A party cannot accept and act upon the terms of an order, and also appeal therefrom.
    A defendant moves the court for leave to amend his - answer. Upon the motion the court orders that leave be granted upon payment of ten dollars costs to plaintiff. The answer as amended is served and the costs paid, and accepted by plaintiff, and plaintiff replies to the amended answer, and a trial commences on the issue thus joined, but in the mean time, after all this, plaintiff appeals from the order (within the time allowed for an appeal by law). On motion to dismiss the appeal,—Meld, that plaintiff had waived his right to appeal from the order by accepting the costs of the motion.
    Before Monell, McCunn, and Jones, JJ.

      Decided March 4, 1871.
    Motion to dismiss an appeal heard before the six judges of the court, at the December general term, 1870.
    It appeared from the moving papers, that on July 9,1870, an order was made and entered at special term, allowing an amendment of the defendant’s answer upon payment by the defendants to the plaintiff of ten dollars costs of opposing the motion, and on the twelfth of the same month, a copy of the order and of the amended answer was duly served on and received by the plaintiff’s attorney, and the ten dollars costs were also paid to and received by him. On the same day the plaintiff’s attorney served the defendant’s attorney with a reply to the new matter contained in the amended answer. Thereupon, the trial of the action was proceeded with before a referee, who had been previously appointed, and was finally submitted for his decision on July 37, 1870. Within the time allowed bylaw, the plaintiff’s attorney served a notice of appeal from the order upon the defendant’s attorney, but, through inadvertance, did not serve a like notice upon the clerk of the court. The motion to dismiss the appeal was upon two grounds : First, that the plaintiff had waived the right to appeal, by accepting the costs of the motion ; and second, the failure to serve the notice of appeal upon the clerk of the court.

      Mr. E. L. Andrews, for appellants.

      Mr. E. P. Clark and Mr. Wilber Shaw, for respondent.
   By the Court.—Monell, J.

I think it is very clea,r that this appeal must be dismissed upon the first ground. The cases seem to uniformly hold, that the acceptance of any benefit or advantage under an order, or acting upon the order, operates as a waiver of the right to appeal.

In Rad way v. Graham (4 Abb. Pr. 468), the general term of the common pleas held, that the imposition of costs, as a condition for granting a motion, was such a benefit, that the acceptance of them waived the right to appeal.

That case has been followed by Lewis v. Irving Ins. Co. (in a note to Hanna v. Dexter, 15 Abb. Pr. 140), in the supreme court; and in this court, by Lupton v. Jewett (1 Robt. 639).

In Noble v. Prescott (4 E. D. Smith, 139), the order allowed a renewal of the motion, which the party availed himself of; and it was held to be a waiver of the right to appeal.

This case is stronger than any of them. Here the appellants not only accepted the costs, but also the answer, to which they served a reply, and then proceeded with the trial.

All this action under the order would of itself, it seems to me, preclude an appeal.

The stipulation between the attorneys that the appeal should be heard upon certain papers, was not a waiver of the right to make this motion. The papers included an affidavit of all the facts upon which this motion is founded, put in, for the purpose of raising the question on the argument of the appeal, as was done in Radway v. Graham (supra). But the defendant’s attorney has pursued a better practice, and brought the matter before the court, upon notice to the opposite party.

Hor have there been sufficient laches to defeat the motion, even although the right to make it might be lost by laches. It is not required, I think, that it should be made at first or earliest opportunity ; and may be made, as was done in some of the cases, when the appeal is brought on for argument.

Irregularities in practice are sometimes cured or waived, by admitting to take early advantage of them. But this was not an irregularity (1 Tidd’s Pr. 512), but a substantial act of the party, and was not waived by laches.

I do not propose to examine the second ground of objection, although I think it may be correctly said, that it is sustained by the clear weight of authority. See the case, collected in notes to VoorMes’ Ed. of the Code, §§ 327, 332.

I am in favor of granting this motion, with costs.

McCunn, J.

I concur. The order appealed from was a conditional order (the payment of costs, &c.). The conditions were tendered' by defendant and accepted by plaintiff; they cannot, therefore, accept the terms of the order and appeal at the same time. They must do one thing or the other. They selected and accepted the terms; this, therefore, bars their appeal (Pearce v. Chaplin, 9 Q. B., 802 ; 16. L. I. Q. B., 49 ; Bartlett v. Stinton, 1 L. B. C. P., 238; 14 W. B., 614 ; 14 H. T. N. S., 287 ; Dodsey v. Hamilton, 5 Saund. 1). The plaintiff in this case, in addition to accepting the costs imposed on the granting of the motion, accepted the amended answer. This, he claims, was merely an irregularity on his part, which he should be allowed to remedy. How, if a party lies by after an irregularity, and he knowingly, as in this case, prevents the other party from taking further steps in the case before he moves to take advantage of the irregularity, this is a waiver of such irregularity (Gair v. Goodman, 2 Smith, 291).

Jones, J.

The appeal from the order allowing an amendment having been dismissed, on a ground which would have been fatal to it even if there had been a proper service of notice on the clerk, it is' unnecessary to decide whether the order from which this appeal is taken is correct or not, since the reversal of that order and the entry of an order to the effect asked for will not reinstate the appeal from the order allowing the amendment, and can in no wise benefit the appeal.

Appeal dismissed without costs.

Freedman and Spencer, JJ., concurred in the opinion of Judge Monell.


author: By the Court.—Monell, J.

text:
    SAMUEL F. KNAPP and others, Plaintiffs and Appellants, v. AARON ALTMAYER and others, Defendants and Respondents.
    Slight evidence is sufficient to establish the existence of an old map; and where a witness (a surveyor) had testified that he had made a survey of a lot, on the basis of an old map which gave the lines, his testimony that he believed he had seen the map, and that a copy or what purported to be a copy of the map, filed in the register’s office, had for many years been the standard for surveys by city surveyors,—

      Held, that this testimony was sufficient to be submitted to the jury.
    Before Monell, McCunn and Jones, JJ.

      Decided March 4, 1871.
    Appeal from a judgment.
    The complaint alleged that the plaintiffs were lawfully seized in fee, and were the owners, and were entitled to the possession of certain premises, situate, lying and being on the easterly side of Crosby-street, in the Fourteenth Ward of the city of New York, bounded and described as follows, viz: Commencing at a point on the easterly side of Crosby-street, on the division line between the lots distinguished on a map made of the lands of Nicholas Bayard, by the numbers 1,154 and 1,155, and running thence easterly on said division line fifty-seven feet and eleven inches to the easterly side or end of a frame house; thence northerly along said easterly line or end, three inches more or less to the northeasterly corner thereof; thence westerly along the northerly side of said house, twenty-seven feet six inches more or less to the easterly side or end of another frame house ; thence northerly along the easterly end of said last mentioned house, one foot two inches moré or less to the northeasterly corner thereof; thence westerly, along the northerly side of said last mentioned house, thirty-five feet five inches more or less to the said easterly side of Crosby-street, and thence southerly along said easterly side of Crosby-street, eight inches more or less to the said division line between said lots numbers 1,154 and 1,155, at the pointer place of beginning. Which premises the defendants were in possession of and wrongfully withheld from the plaintiffs.
    The defendants’ answer was a general denial.
    The action was tried before Mr. Justice Spekcer and a jury.
    The plaintiffs itntroduced a deed from Margaret S. Rutgers to Jeremiah L. Knapp, the ancestor of the plaintiffs, dated April 14, 1845, conveying certain premises by the following description, viz: “ All that certain lot of ground situated in the Fourteenth (late Eighth) Ward of the city of New York, distinguished ■on a map made of the lands of Nicholas Bayard, Esq.., by lot No. 1,155, fronting on Crosby street, and in length on each side one hundred feet, be the same more or less, and in breadth front and rear twenty-five feet, be the same more or less.”
    They then proved ownership in the plaintiffs derived under the deed, and introduced a survey made in 1859, by Edwin Smith, city surveyor, of what was claimed to be the lot conveyed by the Rutgers deed, and which showed that the northerly line of that lot in possession of the defendants, encroached upon the plaintiffs’ lot, from three inches in front, to fourteen inches in the rear, for a distance of about fifty-eight feet from the front.
    The plaintiffs also introduced another survey made in 1869 by James E. Serrell, also a city surveyor, of the same lot, with substantially the same result as the survey of Smith.
    Serrell, who was examined as a witness, testified that he knew the map of the Bayard farm, and made Ms survey on the basis of that map. That°he found such map on file in the register’s office, and recorded as map Ho. 386. That the map there recorded was not the original but a copy, or what purported to be a copy of the original. The witness further testified that there were two Bayard maps, so called, one of the west and one of the east farm ; that map 386 was a copy of the east farm map. He said he thought he had seen the original map of the east farm, and had compared the copy map in the register’s office with the extracts he had made from such original map, and that they corresponded. He said he did not know what had become of the original map, and believed it was lost.
    He further testified that he was confident that the lot Ho. 1,155 was lot Ho. 1,155 on the original Bayard map, and said he saw the original map as far back as 1845.
    There was undisputed evidence that the premises in dispute had been in possession of the defendants, or of those through whom they claimed, for more than twenty years. This was established by the evidence of Samuel Knapp, one of the plaintiffs, who testified, that the buildings on the defendants’ lot, which it was claimed encroached upon the plaintiffs’ property,, were' there in 1845, when the plaintiffs’ ancestor bought, and are there now.

      At the close of the plaintiffs’ evidence the defendants moved to dismiss the complaint, and the court granted the motion.
    The plaintiffs excepted, and appealed from the judgment.

      Mr. J. E. Burrill, for appellants.

      Mr. Geo. C. Barrett, for respondents.
   By the Court.—Monell, J.

It is understood that the complaint in this case was dismissed, on the ground of insufficiency of proof of the plaintiff’s title to the disputed lands, and not on the ground that the, evidence had established an adverse possession in the defendants, and the,former was the only point argued on the appeal.

The only evidence which went to establish title, was that of the witness Serrell, who testified to a survey made by himself, upon the basis of the Bayard ’East farm map. That survey shows an encroachment by the defendants upon the plaintiff’s lot.

In both deeds, as well the defendant’s as the plaintiff’s, the lots are described by certain numbers upon the map of the lands of Nicholas Bayard, the plaintiff’s lot being No. 1,156, and the defendant’s No. 1,155, upon such map. And the lots then designated, are supposed to be of the diminsions of twenty-five feet wide and one hundred feet deep.

The accuracy of the survey made by Mr. Serrell depends upon whether the map now on file in the register’s office, and designated as Map No. 386, is a correct j copy of the original East farm of the Bayard estate.! If it is, then the evidence and survey of Serrell made \ out a prima facie case for the plaintiffs. '(

Mr. Serrell testified that he had surveyed the two lots upon the basis of the Map No. 386, and that the true line between the lots of the plaintiffs and the defendants was shown upon the diagram of his survey, by the dark line drawn between the lots. And the present possession of the defendants also appearing upon such survey and diagram, and designated by the faint lines, it appears that such possession encroaches upon the plaintiff’s lot to the extent claimed in the complaint, unless it can be accounted for by what Mr. Serrell calls “surplus” land.

The real difficulty, however, was in establishing that Map No. 386 was a copy of the Bayard East farm map. The evidence on that subject was very slight. Mr. Serrell, who was the only witness examined in regard to it, did not make it very clear. At first he said he had never seen the original map. Subsequently, upon being recalled, he said he thought he had seen the true East farm map, and that upon making a survey some twenty years since, he made extracts from it, which he had compared with the copy now on file, and that they corresponded. Afterwards he said, he would swear that he had seen an original map of the Bayard farm, as far back as the year 1845.

He further testified that the copy Map No. 386, in the register’s office, had for many years been the standard for surveys by city surveyors.

Upon all the testimony, if the jury had found that the lines indicated upon Mr. Serrell’s diagram of his survey, were the correct line between the plaintiff’s and defendant’s lots, I do not think the court would have set it aside, as being unsupported by, or against the clear weight of the evidence.

We think, therefore, that there was enough to have carried the case to the jury, and to have put the defendants upon their defense..

The judgment should be reversed, and a new trial granted, with costs to the appellants to abide the event.


author: By the Court. — Monell, J.

text:
    ROSWELL D. HATCH, Executor, and ELIZA HELEN HOGAN, Executrix of the last Will and Testament of Robert Hogan, deceased, Plaintiffs and Appellants, v. JOHN R. FOGERTY, DUDLEY N. BAIN and PETER M. JORDAN, Survivors of Charles Ga Nun, deceased, Defendants and Respondents.
    Where a builder’s contract provided that if the builder neglected to complete the houses, or to diligently prosecute the work, or if he suspended the work for ten days, the owner might demand payment, and on refusal to .pay, might sell, at public or private sale, all the builder’s interest in the premises,—held, that such a sale would not foreclose all the builder’s interest, but that he might thereafter, in an action to redeem, allege and prove that there had been no forfeiture, and could thereupon be relieved from the sale.
    Where an attorney employed to foreclose such a contract, resorted to a sale at auction merely, and afterwards became interested in the builder's equity, and employed other attorneys to assert such equity ; and an action was brought, whose foundation was the insufficient' title acquired under the foreclosure which the attorney had conducted, and in which action such attorney received a portion of the money obtained :—held, in an action to recover it back, that besides the high and responsible duty of an attorney towards his client, and the fidelity he owes to his interests, that he must also have sufficient learning to determine, with reasonable accuracy, upon the appropriate remedies for enforcing or securing the rights of his client, and sufficient skill to conduct the proceedings appropriate to such remedies.
    It is also fundamental, in respect to the duty of an attorney towards his client, that he shall not use any information which he has derived from his client to the prejudice or injury of his client; and especially, that he shall not act in opposition to his client’s interests. The law is too regardful of the rights of persons who have fiduciary relations, to allow any betrayal of the trust and confidence.

      Held, that the transaction on the part of the attorney could not be countenanced or upheld, and that the action to recover the sum received by the attorney should be maintained.

      Before Monell, Jones and Spencer, JJ.

      Decided March 4, 1871.
    Appeal from a judgment.
    In August, 1851, Hogan, the plaintiff’s testator, contracted to sell to one Willock, certain lots in this city ; and agreed to make advances of money, to assist Willock in building ; and when the buildings were enclosed, Hogan was to convey the lots to Willock, and Willock was to execute a mortgage to Hogan, for the purchase money and advances.
    The contract contained the following provision :— “It is furthermore agreed and understood, that if the said Willock refuse or neglect to complete the said intended houses, or if' the diligent prosecution of the work thereon, shall at any time after the date of these presents, be suspended for ten days, then and in such case said Hogan shall have the right to insist on an immediate repayment of all the advances he shall have made, together with interest thereon; and he also is hereby authorized, in such case, to sell at private or public sale, all the right, title, interest and estate of the said Willock in and to the said premises, and to apply the proceeds of such sale to the payment and satisfaction of the expenses of such sale, and of all claims and demands due, or thereafter to become due, which the said Hogan may have against the said Willock, for or upon account of the premises, and if any surplus should remain, the same is to be paid to said Willock. The said Hogan is, however, to give the said party one week’s notice of his intention to make such sale.”
    Willock took possession of the lots and began building. Subsequently, and in December, 1852, Hogan haying claimed that Willock had broken the contract, employed, as was alleged, the defendant Fogerty, who is an attorney at law as his attorney, to acquire or extinguish Willock’s interest in the lots, under the provision contained in the contract. For this service, Fogerty, as was also alleged, was paid by Hogan. Fogerty proceeded to foreclose the contract, by a public sale, pursuant to notice to Willock, at the Merchants’ Exchange, of all Willock’s right, title and interest in the lots, held by him under the contract. Hogan became the purchaser at the sale, and entered into, and has continued in possession, claiming title under such purchase.
    There was other employment of Fogerty by Hogan in controversies connected with the lots—such as evicting a person in possession of one of the lots ; resisting the claims of judgment creditors of Willock, and of mechanics having liens for work or material; and especially, Fogerty was employed by Hogan, as was also alleged, to procure for Hogan from Willock, a full release of all claims of Willock against Hogan, under the contract. Such a release was procured by Fogerty, but for purposes, as alleged by Fogerty, as hereafter stated, and for his services under these various employments, including, as was alleged, his employment to procure the release, he was paid by Hogan.
    It was alleged by Fogerty, and was found as a fact by the court, in regard to the release, that Fogerty was employed by Hogan, with the concurrence and assent of Willock, to take such proceedings as would be necessary to extinguish the claims of the creditors and lien-holders of Willock, against the property, and for that purpose only, and not otherwise, he did procure the release from Willock, and that it was procured upon the express condition, that the same should not at any time be delivered to Hogan, and that it should not in any manner affect the claim or interest of Willock to the premises, or against Hogan upon the contract.
    Hogan continued in the undisturbed possession of the premises, under his purchase, from December, 1852, until some time in June, 1859, a period of nearly seven years, when an action was commenced against Hogan, by or in the name of Willock, by Ga Nun, Jordan & Bain, his attorneys, in which action, Willock demanded a deed from Hogan of the premises, pursuant to the terms of the contract, and an accounting by Hogan, of the rents or profits of the premises, during .the nearly seven years he had held possession.
    The ground upon which that action was founded, was, that the sale at the Merchants’ Exchange, which had been conducted by Fogerty, had not extinguished Willock’s interests in the premises or his rights under the contract.
    Hogan appeared in that action by John H. Hedley, his attorney, and set up in his answer as a defense, the foreclosure sale which had been conducted by Fogerty, and also the release, which it was claimed, that Fogerty had procured from Willock to Hogan, of all his, Willock’s, interest in the premises, and of all claim against Hogan under the contract, and which sale and release, he claims, was a bar to Willock’s action.
    Pending that action, and before there had been a trial of the issues, Hogan died, and the action was afterwards' continued in the name of his executor, and sent to a referee to be by him heard and determined.
    On the trial of that action, Fogerty was examined as a witness, for and on behalf of Hogan, and amongst other things, testified to the purpose, as found by the court, in respect to the release from Hogan, namely, that it was procured for the purpose of defeating the claims of judgment and lien creditors of Willock, to the premises, and for no other purpose, and was not intended to be delivered to Hogan, or in any manner to affect the rights of Willock to the premises or his interest under the contract.
    Fogerty, upon that examination, made no disclosure of any interest in himself, in that action, and it was not then known to the plaintiff in this suit, that Fogerty at that time, and even before the commencement of that action, had a large interest in the result of the action.
    In ignorance of any such interest, and influenced by the testimony Fogerty had given, of the purpose of the release, the plaintiff, in May, 1862, compromised and settled that suit, paying to Gra Hun, Jordan & Bain, the attorneys, the sum of three thousand dollars, in satisfaction of the claims.
    After such settlement had been effected, Fogerty commenced an action, in Ms own name, as plaintiff, against Gra Hnn, Jordan & Bain, in which he alleged, that he had retained and employed them, to prosecute the action of Willock against Hogan, and that they had collected, in such action, a sum of money, over and above their costs, which they had refused to pay to the plaintiff, Fogerty.
    Upon the trial of that action, by a referee, it was proven, and the referee, in accordance with such proof, found as a fact, that the defendants, Gra Hun, Jordan & Bain, were retained by Fogerty to prosecute the claim of Willock against Hogan. That previous to such retainer, Willock had agreed, that Fogerty should receive two-tMrds of the amount recovered. That Gra Hun, Jordan & Bain, took the claim to prosecute, upon the retainer of Fogerty, with full knowledge of his agreement with Willock, and had received the sum of three thousand dollars upon a settlement of the suit. And the referee gave judgment in favor of Fogerty and against Gra Hun, Jordan & Bain, for eight hundred and sixty-six dollars and sixty-six cents, being •the balance in their hands after deducting their costs and charges, and seven hundred dollars which had been paid by them to Willock.
    For a report of that case see 2 Robt. 319.

      Under these circumstances, the plaintiff in this action, as the executor of Hogan, brought this action against Fogerty, to recover the amount he had received from Ga Hun, Jordan & Bain, in his suit against them, on the ground, that his relation to Hogan, as his attorney and counsellor in foreclosing Willoclc's rights and interests under the contract with Hogan, and also in obtaining the release from Willock, would not allow of his becoming, or being interested, in an adverse claim of Willock against Hogan, growing out of the contract he had undertaken to foreclose, and which claim had not been extinguished by the foreclosure proceeding.

    Fogerty alleged in his answer in this action, and the court found as facts:—
    That after the making of the contract, Willock entered into possession of the lots, and proceeded with the erection of the buildings mentioned in the contract, and that Hogan made certain advances' to Willock, as provided for by the contract. That the defendant Fogerty, then was and ever since had been, and then was an attorney and counsellor at law, in the courts of this State, licensed and authorized as such to practice in the courts of this State, and so holding himself out to the world to practice as a regular profession, and as such was employed and retained by Hogan to do and perform certain acts in regard to said contract and said premises. That from the fall of the yean.’ 1852, Fogerty had also been the attorney and counsel of Willock. That at the time last mentioned, Fogerty was employed by Hogan with the concurrence and assent of Willock, to extinguish the claims of one Hamilton Hesbitt, and of certain lien-holders in and to the premises, and did so extinguish the same, and for that purpose, and not otherwise, did procure from Willock the release mentioned and set forth in the complaint, but the said release was executed by Willock, upon the express condition that the same should not be delivered to Hogan, or affect the claims or interest of Willock in or to the premises, or as against Hogan, and Fogerty was not employed or retained by Hogan, to extinguish the claims or interest of Willock, for any purpose other than as above stated, and in accordance therewith, and not otherwise, Fogerty took the proceedings mentioned and set forth in the complaint.
    It was further alleged in the answer, and found as a fact by the court, that in April, 1859, Willock was indebted to Fogerty in the sum of twelve hundred dollars, for services theretofore rendered by Fogerty to and for Willock ; and Fogerty did thereupon in full payment of said indebtedness, take from Willock two-thirds of Willock’s claims against Hogan; and thereupon in consideration thereof, did wholly remit and satisfy the said indebtedness of Willock.
    It was further found as a fact, that Fogerty did not, .in violation of his duty and obligations, as such attorney and counsel for Hogan, or in contempt of the court, or of the obligations imposed on him as an attorney and counsellor of the court, give to Willock advice, or purchase or take from him an interest in his claim against Hogan, or in or to the premises, or instigate Willock to bring said action, or make the purchase from Willock, with intent of prosecuting the said action against Hogan, for his own gain and advantage, or in violation of the statute in that case made and provided. •
    Upon these facts the judge rendered judgment in favor of the defendant.
    The plaintiff having excepted to the findings of law and fact, appealed.

      Mr. E. P. Cowles, for the appellant.

      Mr. William Fullerton, for the respondent.
   By the Court. — Monell, J.

Upon the argument of this appeal, the appellant’s counsel was understood to rest his right to recover, not exclusively but chiefly, upon the ground, that the delicate and confidential relation of attorney and client, which had existed between these parties, would not allow the respondent to take or receive any interest in, or benefit from, any claim which Willock might have or assert, under his contract with Hogan, which had its foundation in the insufficiency of the proceedings instituted and conducted by Fogerty for his client.

The counsel, however, was not understood to abandon the ground, that the benefit which the respondent had derived from the Willock suit against Hogan, was in consequence of his own lack of skill and correct judgment, in instituting and conducting the proceeding, he was employed to institute and conduct, to extinguish the rights and interests of Willock under the contract.

The mode adopted by the respondent to extinguish such rights and interests, was by a public sale, after notice, in pursuance of the provisions of the contract.

It is certainly very questionable whether such a sale, although authorized by the contract, was or could be made effectual to foreclose the contractor’s interest. The question is left open and undecided in the case of Chace v. Hatch, 4 Robt. 89, which was upon a similar contract, but with an intimation that the contractor is not shut out by such a sale, and may, upon a sufficient excuse, be relieved from the forfeiture.

The contract in this case provided, that if Willock refused or neglected to complete the houses, or to diligently prosecute the work, or if he suspended the work for ten days, Hogan might demand payment of his advances, and upon. refusal to pay, might sell at public or private sale, all of Willock’s interest in the premises.

The forfeiture under this contract on the part of Willock, and the right on the part of Hogan to rescind, rested wholly upon the ten days' delay. If the delay in fact occurred, Hogan could at once sell. But in what manner or by whom was that fact to be determined ? Could Hogan’s saying or claiming that it had occurred, be sufficient, and would that conclude Willock, and for ever preclude his disputing the fact ? Assuredly not. The right to sell was unquestionable; but it was, necessarily, a sale at the risk of being set aside, if it should afterwards be made to appear, that there had in fact been no default; or, that it had become impossible to perform, either by the act of Grod, or of the law, or for any other sufficient reason.

The sale, therefore, under the power contained in the contract, was effectual only so far as it put Willock out and Hogan in possession of the premises, and then cast the burden upon Willock of showing, if he could show it, that there had not been a default, or of excusing it if there had been. But it left it competent for Willock, at any time afterwards, to apply to the court to be relieved from the forfeiture consequent upon it. From such an application Willock would not be, and was not precluded by the sale ; nor could he be precluded in any manner, short of a judgment in an action to foreclose his rights and interests under the contract.

Besides the high and peculiarly responsible duty of an attorney towards his client, and the fidelity which he owes to his cause and his interests, he is required to be learned and skillful in the practice of his profession. He must have sufficient learning to be able to determine, with reasonable accuracy, upon the appropriate remedies for enforcing or securing the rights of his client, and sufficient skill to conduct the proceedings appropriate to such remedies.

If an attorney fails in any of these respects, he may, and sometimes does, not only forfeit all claims for compensation, but renders himself liable to his client for any damage which he may thereby sustain.

But the question of any supposed lack of learning or of skill on the part of the respondent, in conducting the proceedings for his client, is not, necessarily, much involved in the consideration of the questions now before us. Indeed, if this were an action by the respondent against Hogan’s representative, to recover his compensation for his services in those proceedings, it is doubtful if we could say that he should not be paid, upon the mere ground that such proceedings produced no beneficial result (Bowman v. Tallman, 40 How. Pr. 1).

But the decision must be placed upon another and different ground—a ground which involves, not the skill nor the learning, but the fidelity of an attorney to the interests of his client; and which forbids his trafficing, in the smallest degree, with such interests, by collusion or otherwise, with persons, who in respect to such interests, have occupied an attitude of hostility towards his client.

Some facts stand out prominently in this case. One is, that the respondent employed the attorneys to bring the action of Willock against Hogan. Another, that he was interested, to the extent of two-thirds, in the result of that suit, having acquired such interest directly by assignment from Whillock. Another, that the foundation of the action was the insufficient title Hogan had acquired under the foreclosure proceeding, which the respondent had himself conducted for Hogan. And another, that he did receive in that suit, and in consequence of it, a portion of the money which had been obtained by a settlement of it, and which settlement was made in consequence of of the adverse testimony of the respondent on that trial.

I am aware, that the fact has been found by the court at special term, that the respondent was employed by Hogan, with the concurrence and consent of Willock, to extinguish the claim of certain lien-holders on the premises, and for that purpose, and not otherwise, he made the sale of the premises, under the power contained in the contract, and procured the release from Willock.

So much of this finding of fact as relates to the purpose of the release, is probably sustained by the evidence ; but I "do not find any evidence sufficient to sustain the remainder of the finding; and a careful examination of the testimony shows, I think, that the respondent’s employment by Hogan was to extinguish all of Willock’s rights and interests under the contract; and that whatever motive the latter may have had, in concurring in, and consenting to, the foreclosure proceeding—whether to defeat, and thereby to defraud his creditors who had obtained liens upon the premises, or otherwise, it is very evident that Hogan’s intention and desire was, to rescind the contract, and put an end to all claims and rights of Willock under it.

But even if the evidence did establish that the purpose of the foreclosure was to accomplish the defeat of the lien creditors, and that Hogan, Willock and the respondent, conspired to effect such purpose by a foreclosure, I am unable to see in it any justification for what has since transpired. Such a purpose need not be stigmatized, and it is enough for the present to say, that it furnishes no foundation upon which a defense can be raised. A party who has advised or assisted in perpetrating a wrong, cannot afterwards be allowed to use the knowledge he has. acquired, to secure a pecuniary benefit to himself, by an attack upon the proceeding he had devised and conducted, to consummate the wrong.

I am also aware of the fact, which has also been found by the court, that Willock was indebted to the respondent in a considerable sum, for professional services, and that he took from Willock a transfer of two-thirds of his claim against Hogan, in satisfaction of such indebtedness.

But such fact does not, in my judgment, change the fispect of the case, or furnish a reasonable excuse for obtaining payment out of his own client, of a debt due from Willock, by a resort to an action whose foundation was a defective and useless proceeding, which such client had employed him to conduct, and which, he had failed to make effectual.

The action instituted by the respondent in the name of Willock against Hogan, if it had no foundation in the errors which the respondent had previously committed, must have been brought for the purpose of harrassing Hogan, or vexing him into a settlement. In one or the other of those ways only could the respondent have hoped to succeed. Hogan would be advised that the sale at the Merchant’s Exchange was, of itself, no bar to the action, and the release of Willock, the respondent knew, as he afterwards testified, was no barrier.

There was reasonable ground, therefore, for supposing that the action would' be successful, or that, operating upon the fears of Hogan, it would produce a compromise and settlement of the claim.

The latter was the result, and it is enough to say that the transaction cannot be countenanced or upheld.

It is fundamental, in respect to the duty of an attorney towards his client, that he shall not use any information which he has derived from his client to the prejudice or injury of his client, and especially, that he shall not act in opposition to his client’s interests. And the rule is, as laid down in 1 Ferg. Jr. Prac, 37, that “lest any temptation should exist to violate professional confidence, or to make any improper use of information which an attorney has acquired confidentially, as wed as upon the principles of public policy, he will not be permitted to be concerned on one side of proceedings, in which he was originally in a different interest.”

I regret that I am obliged to differ from the conclusions of the learned justice who tried this action at the special term. He was doubtless somewhat influenced, as I have found it difficult to resist being, by the fact, that the relation of attorney and client had long before ceased to exist between the respondent and Hogan; as well as the fact, that he had, for several previous years, been acting as the attorney for Willock, and that to obtain payment of a hopeless debt for those services, he became a party, for no more improper motive, to, and instigated the action which was brought in Willock’s name against Hogan.

The law, however, is too regardful of the rights of persons who have fiduciary relations, to allow any betrayal of the trust and confidence. Trustees of all kinds are held to a strict accountability, and the interests of cestui gue trusts are watched with constant care. As was said by the late Vice-Chancellor Sahdford. in Poillon v. Martin (1 Sandf. Ch. 572), “ It is a great principle of equity, that he who bargains in a matter of advantage with a person placing confidence in him, is bound to show that a reasonable use has been made of that confidence.’

But the duties and obligations of mere trustees, whether enjoined by statute or derived from the principles of equity, do not partake of that peculiar and delicate relation which subsists between an attorney and his client. In his case there is more than a legal claim upon his fidelity. The honor of his profession and the due administration of justice is involved, and any taint upon his honor will cast its shadow, in some degree, upon the collective body of his associates at the bar.

Luckily, and to the credit of the profession, few reported cases are found which involve a departure from professional faith and duty. But such cases are not needed to either .illustrate or enforce so obvious a principle as condems the transaction in this case.

I will, however, refer to a single case which is somewhat analogous to the one before us. Case v. Carroll (34 N. Y., 585), was an action to compel an attorney to convey certain premises to the plaintiff, the title to which he had obtained in violation of his duty to his client, and the court say:—“The general allegation that he was the defendant’s counsel, and undertook to conduct the foreclosure suit for their benefit, is sufficient to create a trust, which a court of equity will enforce against him, by requiring him to convey the legal title to the plaintiffs.”

The judgment must be reversed, and a new trial had, with costs to the appellant to abide the event.


text:
    CYRUS SCOFIELD, Plaintiff and Appellant, v. JAMES H. WHITELEGGE.
    Claim and delivery.—Complaint in, requisites of.
    1. Demand and refusal. Averment of not necessary when the detention is alleged to be wrongful.*
    2. Ownership, or a right to the possession, by the plaintiff, necessary to be averred.
    * Note by Reportes.—This overrules so much of the case of Fuller ®. Lewis, 3 Abb. Pr. 383, as holds that the complaint must aver a demand and refusal.

      1. What not a sufficient averment.

    A. An averment that defendant “ detains from the plaintiff.”

    Before Mowell, Jones and Spencer, JJ.

      Decided February 4, 1871.
    The action was to recover the possession of personal property.
    The complaint was as follows:—
    The above-named plaintiff, for a complaint in this action, alleges:
    That the above-named defendant has become possessed of and wrongfully detains from this plaintiff the following property—that is to say : One rosewood Ernest Grabler piano, bio. 6604 (Ernest Grabler, maker), of the value of four hundred dollars.
    Wherefore this plaintiff demands judgment against the said defendant for a return, &c., and for damages, &c.
    The answer was a specific denial.
    At the trial before Mr. Justice Freedmaw and a jury, a motion was made to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.
    The motion was granted, the complaint was dismissed and judgment entered for costs.
    The plaintiff appealed.

      Mr. Oscar Frisbie, for appellant.

      Mr. A. H. Reavy, for respondent.
   By the Court.—Monell, J.

The objections to the complaint in this case, are, that it does not allege ownership of the property by the plaintiff, or a demand and refusal before suit.

The latter allegation is not necessary, where the detention is alleged to be wrongful. In that case, a demand and refusal must be proved, as evidence of a wrongful detention, but need not be averred.

It is otherwise with the allegation of ownership, or, what is its equivalent, a right to the possession of the property.

Ownership, or a right to the possession of the property claimed, must be averred, as well as proved. Such is the text of the elementary writers (Grah. Pr. 2 ed. 879 ; 2 Burr. Pr. 2 ed. 13) ; and the books of precedents conform to the text writers. See, also, Prosser v. Woodward (21 Wend. 205).

The affidavit which the Code requires, to obtain a delivery of personal property, must contain an averment that the plaintiff is the owner, or is lawfully entitled to the possession of the property. And it seems to me a complaint would be insufficient within a similar averment.

It was contended by the appellant’s counsel, that the allegation detains from the plaintiff ” was sufficient as a pleading, and would let in proof of ownership. It might, perhaps, be implied from such an' averment, that it was the plaintiff’s property ; as otherwise it could not be wrongfully, detained from him. But facts so essential should not be left for implication; and it would form a bad precedent to allow such loose pleading to pass.

The plaintiff could have brought another action, or perhaps have obtained leave to amend his complaint.

The omission in it was fatal as it stood, and the judgment dismissing it- must be affirmed.


text:
    DANIEL BELTON, Plaintiff and Respondent, v. EDWARD W. BAXTER, and others, Defendants and Appellants.
    Bun-over cases. Negligence in.
    1. Bights of foot passengero in crossing streets.

    When, at the time a foot passenger commences to cross a street, it is proper for him so to do, with reference to approaching vehicles, he is not obliged to turn back to avoid an approaching vehicle, if that vehicle can, by reasonable, care avoid him; nor is he obliged to stop and allow the vehicle to pass in front of him, but may continue on his way and pass in front of the vehicle, provided that by so doing he does not place himself in a position where the vehicle cannot, by proper care, avoid him. In such cases it is the business of the driver to stop and allow the foot passenger to pass.
    A. Accordingly held, that when a foot passenger, about to cross the Second-avenue to the east, along the upper crossing of Fourth-street, saw a railway car coming past, and then about midway between Third and Fourth-streets followed by a cart directly behind it, his passing in front of the car, which had slacked up, was not negligence contributing to an injury inflicted by being run over by the cart which had been drawn out and driven up along the right of the car.
    2. Negligence. What is, in the driver of a vehicle following a car. His duty.

    A. In turning out and passing the car he should go cautiously, carefully and slowly, and exercise a higher degree of caution than ordinary, so as to be able to avoid (even by stopping, if necessary) running over foot passengers who may be obscured from his view by being in front of the car.
    Before Monell and Jones, JJ.

      Decided February 4, 1871.
    The only questions argued upon this appeal, arose upon the refusal below, to dismiss the complaint.

      The action was to recover damages for personal injuries sustained by the plaintiff, through the alleged negligence of the defendants’ servant.
    The motion to dismiss was on the ground that the evidence showed concurring negligence of the plaintiff, and did not show any negligence on the part of the defendants.
    These questions were left to the jury under instructions from the court as to their effect upon the verdict.
    The following facts appeared from the evidence. Plaintiff was walking upon the northerly side of Fourth-street, towards the East river. When he came to within a few feet of the Second-avenue, he saw the railway ear approaching, and then about midway between Third and Fourth-streets, and the defendants’ cart directly behind the car. Both the car and the cart were going fast. As the car reached the lower crossing of Fourth-street, it slackened to let off a passenger, and the plaintiff hastened to get over upon the upper crossing, and had passed in front of the car horses, when he was struck by the defendant’s cart; the driver of which had upon the slacking up of the car drawn out to the right, and driven on up the avenue, having the car between himself and the plaintiff". The rate of speed of the cart was not clearly established. One witness, beside the plaintiff, said it was going “ very fast.” The driver put' it at a fast walk; but his cousin, who was with him, said it was at the rate of “four or five miles an hour.”
    The learned judge charged the jury among other things, as follows':
    “I wish to say one Word here in respect to what I deem to be the rights of persons using the streets, either with vehicles or on foot. There has been no distinction, no law, no rule established by which there has been a preference given to one class over another. It is the equal duty of the driver of a vehicle, in going through the streets, to take care to avoid doing injury as well to foot passengers, as also to vehicles, and in reference to crossing streets the foot passenger and the driver of a vehicle have equal rights, and the driver of a vehicle coming on an angle with a passenger must look out and take care to avoid him. In this case, according to the plaintiff’s testimony, he came to the curb-stone and saw the car approaching. He had a right to cross there. He had a right to go in front of this vehicle and cross at that time, if he did not place himself in a position where this vehicle by proper care could not avoid him. He had as much a right to cross there as the vehicle had to go on in the other direction. It is the point of time that governs these things. I hold as a principle of law, that if I attempt to cross Broadway, or any other crowded thoroughfare, I am not obliged to turn back to avoid a vehicle, if that vehicle by reasonable care can avoid me. It is the business of the driver to stop and allow me to pass. It is not my business to turn and go back for the purpose of avoiding him ; I am there by right, and my right is paramount to his, because I am there first in point of time.”

      Mr. Paine, for appellant.

      Mr. S. A. Walker, for respondent.
   By the Court.—Monell, J.

The right of the plaintiff to cross the avenue, and.the relative duty of drivers of vehicles, in respect to such rights, was correctly and forcibly stated to the jury by the learned justice before whom the action was tried.

This right of foot passengers to travel upon the public highway, and especially to use the crossings, has been frequently asserted by this court, and should be, sometimes at least, recognized by the drivers of vehides, who practically and habitually regard foot passengers as mere intruders upon and obstructors of the highway, and who can be run over with impunity (Baxter v. Second-Avenue R. R. Co., 3 Robt. 511 ; Barker v. Savage, 1 Sweeny, 288).

The question involving the defendants’ negligence was put to the jury for them to determine. There was some evidence—sufficient, I think, to require it to go to the jury—which renders it improper for us to interfere with the verdict.

Having conceded to the plaintiff his right to make the crossing at the time, in the manner, and under the circumstances, it very properly became a question with the jury, whether the driver of the cart, following up the car as closely as he had, was not bound, in turning out from the track, to exercise a much higher degree of caution than he appeared to have done, to avoid running over or running down foot passengers who were rightfully upon the cross-walk.

It is evident, that had the defendants’ driver, when he drew out from behind the car, gone cautiously, and carefully,—in other words, gone slowly on,—until the car had passed, the plaintiff would not have been injured. The jury were authorized by the evidence, to find, and we must assume that they did find, that the cart was, at the time of the accident, being driven at an imprudent and careless rate of speed, thereby causing ■the injury to the plaintiff.

The judgment should be affirmed.

Note.—Barker v. Savage was reversed by the court of appeals (45 N. Y. 191).

It is submitted that such reversal does not necessarily conflict with the principles above laid down. The court of appeals in that case construed the charge of the court below as laying down the propositions, that a foot passenger on entering upon a crossing was not bound to use as much care as a co-equal right of way in himself and vehicles would be required, and that after entering upon the crossing he was relieved from exercising any care or caution for his safety, and held such propositions erroneous. The charge in the above case refers to the rights of foot passengers, abteb having properly entered on its crossing, and does not relieve from all care or caution for his safety.


text:
    JOHN ADOLPH v. THE CENTRAL PARK, NORTH AND EAST RIVER RAILROAD COMPANY.
    Collision. Vehicle on track immediately in front of the horses attached to a horse car.
    1. Negligence, what constitutes in driver of vehicle.

    A. Turning off of the track at right angles.
    2. Negligence, what does not constitute in driver of the ea/r.

    B. Non-stoppage of the car in time to prevent collision. Held, where the driver of a cart driving along a track immediately in front of the horses attached to a car suddenly turns off of the track at right angles, and the car collides with the cart, that
    1. The driver of the cart was guilty of negligence.
    2. The driver of the car was not guilty of negligence.
    Streets. Railroad’s exclusive, or peculiar, right of, to.

      Dictum, in Willard v. Eighth Av. R. R. (3 Bosw. 314), to the effect that city railroad corporations have a peculiar right to the highway, repudiated.

    The doctrine of the cases of Baxter v. Second Av. R. R., 3 Bolt. 511; Barker v. Savage, 1 Sweeny, 288; Belton v. Baxter, Ante,—approved.
    Before Monell, McCunn, and Spencer, JJ.

      Decided February 4, 1871.
    Action for personal injuries caused by the alleged negligence of the defendant’s servant.
    The action was tried by Mr. Justice Freedman, who on motion, directed a verdict for the defendants, and the plaintiff excepted.
    The motion was made upon two grounds, namely, that there was concurring negligence on the plaintiff’s part, and that the evidence failed to establish any negligence of the defendants.
    Judgment was suspended, and the exceptions sent to the general term.
    The following facts were established by the evidence.
    The defendant’s car, was proceeding up, towards Fifty-ninth-street, upon Avenue A, at a little more than the usual rate of' speed. At Fifteenth-street, the plaintiff, who was driving a horse, attached to a wagon with kindling wood in it, drove upon the railroad track, in front of the horses attached to the defendant’s car, and proceeded slowly up the avenue. The driver of the car hallooed to him several times to get off the track, to which the plaintiff paid no attention, but continued in obstructing the progress of the car, until he reached Seventeenth-street, when, being immediately in front of the car horses, he turned short, away from, and in a direction at right angles to the railroad track. The driver of the car put on his brake as quick as he could and almost stopped within three or four feet, but the car was so near it could not be stopped before it struck the wagon, and the car driver was obliged to switch off his horses to prevent their being injured by being caught between the car and wagon. The corner of the car struck the hind end of the wagon and upset it.

      Mr. A. Levinger, for plaintiff.

      Mr. A. J. Vanderpoel, for defendant.
   By the Court.—Monell, J.

I think the verdict in this case can be sustained upon either of the grounds taken below.

The effect of turning from the track in the manner described, was to arrest the motion of the wagon in the direction the car was going, and bring it in collision with the car, without giving the driver of the latter any time or opportunity to arrest the progress of the car.

It is evident that the collision occurred by the manner in which the plaintiff turned away from the track, and that it would not have occurred if the usual and safer mode of turning off at a somewhat acute angle had been adopted.

But again: there was no negligence imputable to the defendants. The plaintiff was upon their track, obstructing the progress of their car. He was spoken to get off the track, and when he turned, it was in an unusual manner to turn, when a car was so close upon him. The driver of the car could not have supposed that the plaintiff would turn thus squarely off the track, and as he did so. turn, there was not time to stop the car.

Therefore, there was not shown any negligence of defendants.

The defendants’ counsel, on the argument of the exceptions, urged us to adopt a view of the law in support of the verdict, which he claimed was sustained by the decision of the court in Willard v. Eighth-avenue R. R. Co. (3 Bosw. 314).

There is a dictum, in that case which goes nearly "to the extent, that city railroad corporations have an exclusive right to so much or the public streets as are occupied by their tracks. It does go to the extent that they have a peculiar right to the highway.

There was no such question properly in that case, and the remark of the learned judge, that the “company is entitled to the unrestricted use of its rails, for the progress of its cars,” was unnecessary to a decision of the case.

The doctrine enunciated in that remark of the learned judge, has since been repudiated by this court on every occasion when it has been presented.

The co-equal right of a foot passenger with a railroad corporation, to the use of the public highway, and the only recognized right of the latter to use the highway at all, is fully discussed and determined in the case of Baxter v. Second-avenue R. R. Co. (3 Robt. 511), and in the later case of Barker v. Savage (1 Sweeny, 288) ; and see, also, Belton v. Baxter, just decided.

The case before us does not need any aid from the cases referred to, nor to adopt the dictum in Willard v. Eighth-avenue R. R. Co., and I have alluded to that case merely because it has been, in effect, overruled by the subsequent decisions of this court.

The exceptions must be overruled, and judgment ordered for the defendants, upon the verdict.


text:
    ELIZA COLT, Plaintiff and Respondent, v. THE SIXTH-AVENUE RAILROAD COMPANY, Appellants and Defendants.
    The verdict of a jury cannot be interfered with except when the evidence is wholly insufficient to sustain the verdict; and although courts have always exercised a supervisory and correcting power over the verdicts of juries, yet it has been done with much reluctance and caution.
    Whenever the court shall deem it proper to submit questions of fact to a jury for determination, and such questions have to be determined by weighing and considering conflicting evidence, and determining the credit of witnesses, it must be an extreme case,—one where it is fair to conclude that the verdict has been improperly influenced, or has resulted from bias or prejudice,—that authorizes the court to set it aside.

      One of the rights of a railroad, passenger is to be allowed a reasonable time to alight, and, subject to all lawful regulations as to time, place, and manner of stopping, that a railroad company may make it is their duty to stop the car long enough to allow the passenger to alight in safety. Sufficient time must be given, and the length of such time must necessarily depend, upon the circumstances of each case, among which are the age and condition of the passenger. A person who is a cripple, or otherwise feeble or infirm, is entitled to consideration on that account.
    In the case where the passenger was a woman and a cripple, and slow in her movements, and by the evidence the jury should have concluded that she had actually stepped from the car before it had started, and the accident was caused by her dress or hooped skirts being caught by the car, as it moved, and she thrown down thereby; these facts do not relieve the company from the act of negligence of starting the car before she could alight from and separate herself therefrom completely, and these facts do not form a case of negligence on the part of the passenger, that may be held to contribute to the accident so as to relieve the company from its negligence.
    Before Monell, McCunn, and Spencer, JJ.

      Decided April 1, 1871.
    This action was to recover damages for injuries sustained "by the plaintiff, through the alleged negligence of the defendants’ servants.
    The facts will sufficiently appear in the opinion of the court.
    The action was tried before Mr. Justice Joses and a jury.
    A motion was made at the close of the evidence to nonsuit the plaintiff, which was denied.
    The case was submitted to the jury under the charge of the judge, and a verdict was rendered for the plaintiff.
    A motion for a new trial was made and denied.
    The defendants appealed.

      Mr. J. M. Smith, for appellants.

      Mr. G. M. Spier, for respondent.
   By the Court.—Monell, J.

We are asked to set aside the verdict of the jury in this case, as being agaihst the clear weight ox the evidence, and the duty, therefore, devolves upon us, of carefully examining and considering all- the testimony that was given upon the trial.

The learned justice before whom the trial was had, evidently considered it a case, which it was his duty to submit to the jury. He not only denied a motion of the defendants, to nonsuit the plaintiff, upon the whole of the evidence, but he submitted," with great care, the questions of fact to the jury, under lucid instructiqns; and afterwards denied a motion for a new trial upon his minutes.

It is not necessary to do more, than to merely state the rules which must govern us, in the disposition of the questions of fact in this case.

The right of trial by jury, in this class of cases, is secured by law, and cannot be interfered with, except when the evidence is wholly insufficient to sustain the verdict.

Courts have always exercised a supervisory and correcting power over the verdicts of juries, but it has been done with much reluctance and caution.

The office of a jury is to determine facts upon conflicting evidence. It is their duty to examine, weigh and consider, all the evidence which has been submitted to them, and to endeavor to arrive at the truth.

If the whole of the evidence presents a cáse, which in the judgment of the court at the trial, clearly and strongly preponderates in favor of one side or the other, it is the right and the duty of the court, to direct the jury to find their verdict, in accordance with such preponderance.

But if there is a fair and reasonable doubt, as to such preponderance ; and especially where the result must, wholly or to some extent, be affected or influencecl, by the credit which shall be given to witnesses and their testimony, it would be a violation of the right of trial by jury, for the court to take the case out of the jury box.

Whenever, therefore, the court shall deem it proper, to submit questions of fact to a jury for their determination, and such questions have to be determined by weighing and considering conflicting evidence, and determining the credit of witnesses, it must be an extreme case,—one where it is fair to conclude that the verdict has been improperly influenced, or has resulted from bias or prejudice,—that the court, is authorized to set it aside.

It is not claimed in this case, that there was any other influence, bias or prejudice, affecting the verdict, than the bias and prejudice, which it is charged, more or less always influence verdicts against railroad corporations.

But I am not prepared to say that a prejudice of that kind, even assuming that it could be ascertained to exist, would be ground for vacating a verdict. At any rate the motion is not now put upon that ground.

I have examined the testimony in this case with much care, and I have not been able to find a single fact or circumstances calculated to change the opinion which I have all along entertained, that the injury, which the plaintiff sustained, was caused by starting the car before she had been allowed sufficient time to alight.

I entirely throw out of view the testimony of the conductor Gray, as his evidence was, perhaps, sufficiently impeached to authorize the jury to disregard it, and taking the statement of the plaintiff, which the jury had a right to, and must have believed, it is evident, that the accident occurred in the manner I have stated. And that was negligence on the part of the defendants.

The plaintiff, at the time of the accident, was about sixty-six years of age. She had, some seven years previously, injured one of her limbs, rendering it necessary to use a cane for assistance or support. She says, that in getting out of the car, she stepped down one step, and in attempting to take the second step, found her dress was caught, and she turned partly around to loosen it—it seemed to be caught on a nail, or something of that kind. In the meantime, the conductor had given the signal to move on ; the car moved on, and dragged her around by the side of the car, with her head very near the car, and broke her limb and hip bone.

A perfectly legitimate and proper deduction from this statement of the plaintiff is, that before she could alight from the car, it was started by the conductor and she thrown down.

The jury had this evidence before them: it was not intrinsically improbable, and it was not much shaken by any other evidence in the case ; and it is not altogether impossible, that they may have been influenced 'by their own recollections of the by no means infrequent similar practices of conductors of our street railroad cars, of allowing a too limited time for passengers to get off or on.

And when such a practice of haste came to be applied to an aged lady, partly crippled by a previous injury, the jury could not well fail to stigmatize it, as an act of negligence.

There was no claim that there was any negligence on the part of the plaintiff, nor could any be attributed to her. I cannot say, as a matter of law, that she had not a right to wear a hoop skirt, or a dress so long as .¡.to trail behind her, and rest upon the platform, as she was alighting. If, as she believed, her skirt or dress was caught by a nail protruding above the platform, nevertheless, she was thrown down by the too soon starting of the car. Or, even if there was no nail there, and her dress was not thus caught, nevertheless, no one can reasonably doubt, that the starting of the car threw her down.

In any point of view, therefore, it is altogether evident, that the plaintiff had not got free from the car, when it was started.

One of the rights of a railroad passenger, is to be allowed a reasonable time to get off. Subject to all lawful regulations, as to the time, place, and manner of stopping, which a railroad company may make, it is their duty, when a passenger desires to get off, and indicates such desire to the conductor, to stop the car long enough to allow the passenger to alight. The length of such stoppage will depend upon, and be regulated by, the circumstances of each case ; usually the condition of the passenger, of the car, and of the street at the place of departure. But, regulated by these circumstances, sufficient time must be given; and if the company fails in this respect, they must be held responsible for the injuries which the passengers receive by means of it.

Applying these principles to the fact testified to by the plaintiff, that the starting of the car before she was well off the platform, threw her down, the verdict is justified.

As I have said before, the jury had the right to believe this testimony, however much we may think it was impaired or shaken, by any contradictions of it, or of her testimony in respect to the nature and extent of her injuries, or any other contradictions in the evidence ; and having believed it, as we must assume they did, and it being sufficient, if believed, to establish the negligence of the defendants,' we cannot disturb their verdict.

The learned justice charged the jury at much length, fairly presenting all the facts which they were to find, and giving them an opportunity of coming to a result favorable to the defendants.

I have examined the numerous exceptions taken to the admission and rejection of evidence, as well as to the refusals to charge, and to the charge itself, and without going separately over them, am of opinion, that hone of the decisions excepted to were erroneous.

The judgment and order should be affirmed, with costs.


author: By the Court.—Freedman, J.

text:
    ROBERT McGRATH, Plaintiff and Respondent, v. JAMES W. BELL, Defendant and Appellant.
    I. Master and servant.

    1. Discharge. What not sufficient justification of.
    A. Sending notices to master’s customers after the discharge.
    2. Waiter of causes of complaint, what is sufficient of to submit to the-jury.
    A. Evidence of the retention of- the servant in the master’s employ for eleven or twelve days after the master’s knowledge of the existence of the causes.
    H. Trial. Evidence, when exclusion of not treated as error.
    1. When, at the time of its offer it, without explanation, seems quite immaterial, unless it appears plainly that the court was made acquainted with the ground on which it was offered, and which might in law have justified its reception.
    Before Monell, McCunn, and Freedman, JJ.

      Decided April 1, 1871.
    Appeal from judgment.
    The plaintiff, in his complaint, claimed to recover for salary due him on a written contract, whereby defendant had employed him as cutter in defendant’s tailoring establishment for the period of two years, at the rate of thirty-five dollars per week, and alleging, among other things, that plaintiff had been discharged without cause, although he was ready and willing to perform his duty under the contract.
    The defendant, by answer, admitted the contract and an indebtedness of about thirty-five dollars, but denied the discharge without cause, and set up several causes for the discharge, among others, a violation of orders and conduct derogatory to the interest of the defendant, all of which causes were pleaded in bar of the action.

      Cotterill Brothers, attorneys for appellant.

      Charles S. Spencer, attorney for respondent.
   By the Court.—Freedman, J.

Upon the trial defendant attempted to justify plaintiff’s discharge, upon two grounds, namely, first, that plaintiff had been guilty of violations of orders, and secondly, that plaintiff had acted in a manner derogatory to' the interests of his employer.

The disobedience of orders consisted in taking down on paper a list of the names of the patterns, which plaintiff said he kept as a memorandum, so that, if any of defendant’s customers gave a second order, he, plaintiff, as cutter, could know he had the pattern. lío order to refrain from doing so had ever been communicated to plaintiff by the employer himself. This question was fully and fairly submitted by the court to the jury, who found, by their verdict, that no such disobedience took place. There is no exception to the charge of the court upon this branch of the case. But the appellant insists that the court erred in refusing to allow the defendant to prove that plaintiff, after he had been discharged, sent notices to customers whose names he had drawn off the patterns. This evidence, being wholly irrelevant to the issue, was properly excluded.

The evidence relied on to establish that plaintiff had acted in a manner derogatory to the interests of his employer, showed, that on April 24, 1868, plaintiff committed, in defendant’s store, during defendant's absence therefrom, an assault and battery upon Craney, another employee of defendant. It also appeared that defendant retained plaintiff in his employ for eleven or twelve days after knowledge of the occurrence, and until the determination of a criminal prosecution instituted against plaintiff by Craney. The learned judge below, therefore, very properly submitted to the jury the question, whether under all the circumstances the defendant should or should not be -considered as having waived the previous transgression on April 24, provided they found, that there was a transgression on that day, of the duty which plaintiff owed to defendant. The jury had previously been instructed that the fact of plaintiff’s conviction by the magistrate (of which there was no proof), had no weight and was not sufficient per se to justify plaintiff’s dismissal, but that the dismissal must be justified out of the occurrences out of which the conviction arose. Ho objection was made to these latter remarks, and the defendant contented himself with taking a general exception to that portion of the charge which related to the question of waiver, but in the points submitted by the appellant the same has been waived.

The only remaining question, therefore, is whether the court below erred in rejecting the offer made by defendant to prove by the witness Craney, “thatthe said witness made a charge against the plaintiff before a police magistrate, which was tried, and that after the decision of the magistrate, Mr. Bell discharged the plaintiff,” to which rejection defendant took an exception. Now, if the defendant had, prior to such offer, testified, as his counsel subsequently merely argued, that he, defendant, was unable at the time to determine upon the conflicting statements of fellow workmen as to whether Craney or plaintiff was the real aggressor or otherwise at fault, and for that reason determined to and did await the decision of the magistrate before discharging either, the proposed evidence, If offered to sustain such theory, would have been admissible upon the question of waiver already referred to, and its retion, under such circumstances, would probably have been error. But it was not offered for any such purpose. The very first witness called on defendant’s side was Craney, and after he had given his version of the assault, defendant’s counsel offered to prove by Ms testimony, that a criminal charge had been made, that a trial had been had, and that plaintiff was discharged by defendant after the rendition of the magistrate’s decision upon such trial. No foundation, therefore, had been laid for the introduction of such evidence, even if otherwise competent, nor was it pointed out to the court in what aspect of the case it might become material. When subsequently the defendant went upon the stand, as a witness on his own behalf, the offer was not only not repeated, but the defendant wholly failed to testify to any fact or circumstance which might have had a tendency to render the said rejected evidence material. No error was consequently committed by its exclusion at the time and under the circumstances referred to, for it is a well settled rule, under the English practice as well as our own, that an offer of evidence must be made in such terms as to leave no room for doubt as to its competency and materiality under a proper definition of the law applicable thereto, and if not so made, a. general exception to its exclusion will not be available unless it appears plainly that the court understood the ground which in law might have justified its reception.

The appeal in this case being from the judgment merely, the only questions open to review are questions of law arising upon the exceptions presented by appel-. lant’s points, and such exceptions having been found to be untenable, the judgment appealed from must be affirmed, with costs.