author: By the Court.— Ingraham, J.

text:
    GEORGE N. TITUS, Respondent, v. BENJAMIN P. FAIRCHILD, Appellant.

      Boncf,—to officer, when not forbidden, by 3 B. 8. 448, § 49.—Description of person—Recitals as evidence—Orders of court, when evidence in action on receiver's bond.

    A bond given in pursuance of an order or decree by a receiver to the clerk of the court, conditioned for the faithful performance of the receiver’s duty, does not fall within the prohibition of the statute forbidding a sheriff or other officer to take any bond, obligation or security by color of his office, except such as are provided by law.
    Where the penal sum in a receiver’s bond is payable to “ J. M. S., clerk of the superior court, etc.,” without any words showing that the obligee’s representatives are to succeed to his rights, and which shows on its face that it is given in pursuance of orders of the court, to secure the faithful performance of the receiver’s duty, etc., said bond will not be construed to be an obligation to said J. M. S. individually, but will be held valid for the purpose for which it is given.
    An action on such a bond is properly brought by the party interested, in his own name, after leave of court by order, under § 814, Code Civ. Pro.

      The recitals in such a bond are prima facie evidence of the facts therein set forth, in an action thereon.
    Where such a bond is' conditioned that the receiver shall faithfully execute his trust and make payments as directed by order of the court, it is sufficient to sustain an action for breach thereof, against the sureties, to prove orders granted upon notice to the receiver and after he had been heard, directing him to pay a certain sum to plaintiff, and adjudging him in contempt for failure to do so, and plaintiff need not prove that there are sufficient funds of the estate in the receiver’s hands to meet his claim.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided May 7, 1883.
    Appeal by defendant from a judgment in favor of plaintiff and against the defendant, for $5,618.74, entered on the verdict of a jury, by the direction of the court.
    The facts appear in the opinion.
    Arnoux, Ritch & Woodford, for appellant.
    —The bond upon which this action is brought is contrary to the statute, and is therefore null and void, if an official bond (3 Rev. Stat. 448, § 49, 6th ed.). Any bond taken by any officer by color of his office in any other case or manner than such as are provided by law, is void (People v. Meighan, 1 Hill, 298; Webb v. Albertson, 4 Barb. 51; Bank of Buffalo v. Boughton, 31 Wend. 56; Webber v. Blunt, 19 Id. 187; Sullivan v. Alexander, 19 Johns. 223; Love v. Palmer, 7 Id. 159).
    The bond in question is only a personal bond to James M. Sweeney, the words “ clerk of the superior court” being merely an addition descriptive of the person (Brockway v. Allen, 17 Wend. 40; Moss v. Livingston, 4 Coms. 208; Davis v. Garr, 2 Seld. 124; Taft v. Brewster, 9 Johns. 334; De Witt v. Walton, 9 N. Y. 571; Barker v. Mech. Fire Ins. Co., 3 Wend. 94; Hills v. Bannister, 8 Cow. 32; Pumpelly v. Phelps, 40 N. Y. 59; Merritt v. Seaman, 2 Seld. 168; Sutherland v. Carr, 85 N. Y. 105). The law always favors sureties, so far as the terms of the instrument will permit, and they cannot be held beyond the letter of the ágreement (Ward v. Stahl, 81 N. Y. 406). We insist that the bond of a receiver can only be given to the people of the state of New York. Such are all the precedents, and there is no law permitting it to be given otherwise ; and as insisted under the first point, if given to any officer or person, it is void. The approval of the bond by the judge does not make it legal or valid (See also Merritt v. Seaman, 6 N. Y., 168; Austin v. Munro, 47 Id., 360; Buffalo Catholic Inst. v. Bitter, 87 Id. 250).

    If the bond were valid, no action could be sustained on it by plaintiff. It being only a personal bond, the action must be in the name of James M. Sweeney, or his assignee. The Code, § 814, provides that where a bond is given “ to the people, or to a public officer for the benefit of a party or other person,” an action may be brought by the party so interested, in his own name, upon procuring an order of court, etc., and this is not such a bond as the Code contemplates.
    To make out his case, it was necessary for the plaintiff to prove the commencement of the action in which the receiver was appointed, the appointment of the receiver and the order as to giving security, and that he had funds in his hands sufficient to pay plaintiff his claim. The orders recited in the bond should have been given in evidence. There was no evidence before the court that such orders had been made. The recitals in the bond do not prove them (Germond v. People, 1 Hill, 343; Caldwell v. Colgate, 7 Barb. 253; Borst v. Corey, 81 N. Y. 592). Nothing contained in a bond by way of recital will estop a party to it from showing it to be void, as having been taken by an officer colore officii, and without authority of law (Germond v. People, supra).

    If the surety can be bound by the order of the court to pay, the order must show on its face that upon an adjudication by the court of which proper notice had been given and jurisdiction obtained, the receiver had the funds in hand. In all of this class of cases where it has been held that the surety was bound by orders or decrees that the principal should pay, it was shown that sufficient funds came into his hands to pay with (Thayer v. Clark, 4 Abb. App. Cas. 391; Dayton v. Johnston, 69 N. Y. 419; People v. Hascall, 22 Id. 188; Casoni v. Jerome, 58 Id. 315; Thomson v. MacGregor, 81 Id. 592). The case of Thomson v. MacGregor shows that the surety is only bound for what he covenants. In the case at bar he is only bound that the receiver shall pay out of assests in his hands. Unless it is shown that there were assets, there was no liability.

      George J. Greenfield, for respondent.
    —The bond was properly made to James M. Sweeney, clerk of the superior court. Section 715 of the Code of Civil Procedure, requiring such security to be in the form of a bond to the people, was not then in force (Banks v. Potter, 21 How. 474; 2 Barb. Ch. Pr. 522, precedent No. 282; 2 Wait's Pr. 239, 240; Edw. on Rec. 91, note a, No. 4 of Receivers’ Bond in High on Rec. 548). And the bond could be prosecuted upon the application, and for the benefit, of any party interested (3 Daniels’ Chan. Pr. 543; 3 Bulst. 62; Banks v. Potter, supra). But even if there should be any question about the regularity of the bond in this respect, it would be regarded merely as a defect of form and not of substance, and it would not invalidate the bond (Wiser v. Blachly, 1 Johns. Ch. 607; Schoharie v. Pindar, 3 Lans. 8, 11; Farley v. McConnell, 7 Lans. 428-20; Weaver v. Shryock, 6 Serg. & R. 262, 264; Prior v. Williams, 2 Keyes, 533; Sikes v. Territ, 4 Jones. Eq. [N. C.] 360; 2 Rev. Stat. 576, § 33; Gerould v. Wilson, 81 N. Y. 573). And in any event the bond having been voluntarily given by defendant, would be binding upon him, even if irregular. It would be deemed a valid common-law obligation (Baker v. Bartol, 7 Cal. 551; Ring v. Gibb. 26 Wend. 508; Burrall v. Acker, 23 Wend. 605 [21 Wend. 605]; Adee v. Adee, 16 Hun, 46; Chamberlain v. Beller, 18 N. Y. 115).
    The action was properly brought in name of plaintiff, the real party in interest, under § 814, Code Civ. Pro. This section is merely declaratory of the rule established by the decision of the court under the old Code (Baggott v. Boulger,
      2 Duer, 160-170; O’Conner v. Such, 9 Bosw. 318; 3 Daniels' Ch. Pr. 543). And it was also held that the objection, if good for anything, should be taken by demurrer, and if not so taken, was waived (Baggott v. Boulger, 2 Duer, 160; O'Conner v. Such, 9 Bosw. 318, 320).
    The recitals in the bond were evidence as against the defendant, the surety, of the facts stated therein, to wit, of pendency of the action, of the appointment of the receiver, and of the orders of the court therein recited (Franklin v. Pendleton, 3 Sand. 573; Potter v. Merchant’s Bank, 28 N. Y. 641; Scott v. Duncombe, 49 Barb. 73, 84; Carpenter v. Buttler, 8 M. & W. 209; People v. Norton, 9 N. Y. 176, 179, 183; Ransom v. Keyes, 9 Cow. 128). Recitals in the bond are either prima facie or conclusive evidence of the facts recited as against surety (Allen v. Locket, 3 J. J. Marsh. 164; Kellar v. Heclar, 4 Id. 655; Trimble v. State, 4 Blackf. 435; Id. 553; Cutter v. Dickinson, 8 Pick. 386; Norton v. Sanders, 7 J. J. Marsh. 12; Ceil v. Early, 10 Gratt. 198). The evidence of plaintiff also established the pendency of the action at the time of and before the making of the orders and execution of the bond in question. The orders of the court in Clark v. Binniger, directing Barr, the receiver, to pay to plaintiff the amount therein stated, and adjudging that said Titus was entitled thereto, and the order adjudging said receiver guilty of contempt for refusal to pay, were conclusive evidence against defendant, the surety upon the bond, as to the breach of the bond and the amount this plaintiff was entitled to recover against him thereon (Baggott v. Boulger, 2 Duer, 160, 170; Westervelt v. Smith, Id. 449; People v. Norton, 9 N. Y., 176, 183; Scofield v. Churchill, 72 Id. 565; Thomson v. MacGregor, 81 Id. 592; 597, 599, and cases cited; 9 Abb. N. C. 138; Gerould v. Wilson, 81 N. Y. 573; Thayer v. Clark, 4 Abb. App. Dec. 391 [46 Barb. 343]; Casoni v. Gerome, 58 N. Y. 351).
   By the Court.— Ingraham, J.

—This is an action brought to recover the sum of $4,254.66, from the defendant as one of the sureties on a bond given under and in pursuance of several orders of this court made in an action wherein Abraham B. Clark was plaintiff, and Abraham Binninger was defendant, and conditioned that one of the obligors, Thomas J. Barr, who had been appointed receiver .of all debts, property and effects .of the copartnership existing between the said Clark and Binninger should “ duly account for what he had received or had in charge as co-receiver, or for >what he shall have in charge as sole receiver in said action, and shall pay and apply the same as he may from time to time be directed or ordered by said' court, and shall faithfully discharge the duties of his trust as such receiver. The bond was joint and several, and was executed by the principal, Barr and by Henry Smith and the defendant, as sureties. Henry Smith died before the commencement of this action. The bond provides that the obligors are held, etc., unto James M. Sweeney, clerk of the superior court as aforesaid, for which payment, etc., The bond then recites an order of this court in an action therein pending, made March 27, 1869, whereby Thomas J. Barr, one of the obligors, was appointed an additional or co-receiver with one Daniel H. Hanrahan, receiver of the property of the copartnership existing between Clark and Binninger ; and-also an order made April 12, 1870, requiring Hanrahan as receiver and Barr as co-receiver to execute new bonds in the penalty of $250,000, for the faithful discharge-of their duties as receivers, and providing that in case one of them should fail to give such security, that the other of them who had given- such security should be the sole receiver under the orginal order appointing such receiver, and further reciting that said Hanrahan having failed to give such new bonds, that by an order of the court made April 27, 1870, the said Hanrahan was removed as receiver; and which order directed that the said Bar^, if he should comply with the said order of April 12, 1870, should be continued as receiver; and which bond recited another order dated April 30, 1870, reducing the penalty of the bond to be given to $100,000,

On the trial, the plaintiff introduced in evidence the bond duly approved as to the form, manner of execution, and sufficiency of securities, by one of the judges of this court; then an order of the special term of this court, made on motion to said Barr and after hearing counsel on his behalf, dated April 16, 1877, which ordered and adjudged that plaintiff in this action on June 14, 1870, had a lien upon the property, estate and effects in the possession of the said Barr as receiver, to the extent of $5,237.80 ; that said Titus is entitled to be paid said sum of $5,237.80, out of said property, etc., by said Barr, receiver ; and that said Thomas J. Barr, receiver as aforesaid, do pay out of said property, estate and effects referred to, and he was thereby directed to pay to said Titus said sum of $5,237.80, with interest thereon from August 22, 1876, within ten days after the service of a copy of the order. Plaintiff then introduced an order in the said action dated August 7, 1877, reciting the foregoing order, the granting of an order to show cause why the said Barr should not be punished for contempt in refusing to obey the said order of April 16, 1877, and that the said Barr had been heard, and it ordered and adjudged that said Barr had been and was guilty of a contempt in having willfully disobeyed the said order of April 16, 1877, by refusing to pay plaintiff in this action the said sum of $5,237.80, with interest from August 22, 1876, less the sum of $1,250, paid on account thereof, ydnch reduced the sum ordered to be paid on account there of to $4,254.06, and further, committed said Barr for contempt, until such amount should be paid; and also an order dated February 18, 1878, authorizing plaintiff to commence an action on the bond. Plaintiff then testified that there was due him the said sum of $4,254.06, with interest from May 17, 1877.

The court directed a verdict for the plaintiff.

The first objection taken by defendant is that the bond is within the prohibition of the statute that provides that no sheriff or other officer shall take any bond, obligation or security, by color of his office, in any other case or manner except such as are provided by law, such other bond, etc., taken otherwise shall be void (3 Rev. Stat. c. 448, § 49, 6 ed).

It is very evident that the bond in question does not come within the provisions of this statute. The bond was not one taken by a sheriff or other officer, but was given in pursuance of a judgment or order of a court of equity, as security for the faithful performance of the duty of an officer of the court. The power to require such a bond the court has always possessed and exercised, and a bond given ‘ in pursuance of its direction becomes one given in pursuance of law. It was held in Gerould v. Wilson (81 N. Y. 578), that the statute does not apply to a bond taken in such a case, and all of the cases cited by counsel for the appellant apply to officers who are specially directed by statute to take bonds for their own good and safety, and under certain conditions, and they hold that a bond taken by such an officer that does not follow closely the statutory requirements is void. It is evident that such authorities do not apply to a bond given in pursuance of an order or judgment of a court of competent jurisdiction, as a portion of the machinery by which it is enabled to carry into effect its judgment. No provision of law has been cited that restricts this power of the court, and the approval of the bond by one of the judges of the court, adopts it as a compliance with the order. ^

But a more serious question is presented by the objections taken by the appellant that the bond is an obligation to James M. Sweeney personally, it not being taken to him as clerk of the court, and the penal sum is to be paid to “ said James M. Sweeney, clerk of the superior court,” and as no assignment by him or bis representatives was proved on the trial, plaintiff had no right of action in the bond.

The principal case relied on by the appellant on the argument was the case of Sutherland v. Carr (85 N. Y. 105). That was an action on a bond given to secure the faithful discharge of the duties of one Marshall, elected supervisor oí the town of White Plains, to a Jackson Hyatt, town clerk of said town, “ to be paid to said town clerk, or his successors in office,” and the objection was taken in that case that the bond was one to Hyatt individually, and not officially as town clerk, and that the addition of the words “town clerk” to his name was a mere “descriptio persones.” The court, however, held that the rule that where a jjarty to a written instrument is described as executor, administrator or assignee, without introducing any words to show that he intends to act in such capacity, that such phrase is a mere description of the person, “is not so rigid a rule as not to yield to the evident purpose of the instrument; and if there can be plainly gathered from the whole of it that a particular character or capacity is- to be attached to the person named, he will be deemed to hold it in his relation to the transaction. If in a pleading the promise or other obligation or the duties are alleged as those of or to the body that the person named represents, the pleading is looked upon as one for or against that body, “ so it must be with an instrument in writing.”

This being the rule, its application to the bond in question is not difficult. It will be noticed that no words are used to show that the obligee’s representatives are to succeed to his rights; the money is to be paid to the “said James M. Sweeney, clerk of the superior court, aforesaid.” The bond then recites the object for which the bond was given. It shows on its face that there was no obligation to James M. Sweeney individually, but that it was given in pursuance of several orders of the court requiring the receiver, before appointed, to give security for the faithful discharge of his duties as such receiver, and the condition of the obligation is not that any act should be done to or by James M. Sweeney, but that the receiver should perform the duties to which he had been appointed by the court, of which the obligee was in the instrument named as clerk.

Taking the whole instrument together, it must be apparent that the evident purpose and object of the bond was to secure to the parties interested in the trust the faithful discharge of the duties of the receiver, and that it was the clerk of the court who was the obligee, and not ' James M. Sweeney, the individual in his own right.

When this action was commenced, viz., September, 1878, section 814 of the Code of Civil Procedure was in force, and an order granting plaintiff leave to bring the action was all that was necessary to give p'aintiff the right to sue. The bond having been a valid bond, and having been made to the clerk of the court, the recitals in the bonds of the pendency of the action in which the receiver was appointed, and the regularity of the appointment, were at any rate prima facie evidence of the facts therein recited.

The only other question that requires attention is, ■whether the order of the court directing the receiver to pay and adjudging him guilty of contempt is sufficient to sustain the action, without proof that there was sufficient funds in the receiver’s hands, the property of the copartnership, to pay the amount due plaintiff.

It will be noticed that the conditions of the obligation are not only that the receiver will faithfully discharge the duties of the trust, but “that he will pay and apply the same (viz., what he had theretofore received as co-receiver, or what he shall receive or have in charge as such sole receiver) as he may from time to time be directed by the court.”

In Scofield v. Churchill (72 N. Y. 565), the bond was one given by an executor, and was conditioned that the executor should faithfully execute the trust reposed in him as executor, and also obey all orders of the surrogate, etc. And it was held that if the surrogate makes an order that the executor pay over money to a legatee, which the executor fails to do, a breach of the conditions has occurred within the letter of the bond, and the positive undertaking of the sureties had become fixed and operative by the surrogate’s decree, and in the absence of fraud- or collusion, the decree of the surrogate is conclusive upon the sureties.

The conditions here are that the receiver shall account for what he has received and for what he shall receive, and shall pay the same by order of the court. The orders on notice to tlie receiver adjudge that he shall pay to plaintiff a portion of what he has received, and subsequently adjudge that he has not obeyed the order and was in contempt. The orders were all made on notice to the receiver and after he had been heard. I think they were conclusive upon the principal and sureties alike, and that the principal having failed to obey the order to pay, the conditions were broken and the obligation was in full force and effect. There can be no doubt of the power of the court to make the order directing its officer to pay property in his possession, and when such an order, is made and the principal refuses to pay, he has not only disobeyed the order, but has failed to faithfully execute the trust, and then there has been a twofold breach of the condition of the bond (Gerould v. Wilson, 81 N. Y. 578).

The order of April 16, 1877, adjudged that plaintiff had a lien on the property of said firm in the hands of said Barr, receiver, and orders the said Barr, as such receiver, to pay the said sum. That being an adjudication that said Ban-had property of the copartnership in his hand and ordering him to pay, it is conclusive against the receiver, and the sureties on the bond having made themselves privy to the proceedings against their principal, are, without fraud or collusion concluded when their principal is concluded (Gerould v. Wilson, supra).

I am of the opinion that the judgment appealed from was right and should be affirmed with costs.

Sedgwick, Ch. J., and O’Gorman, J., concurred.


source: Caselaw Access Project

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

license: Public Domain

text:
    AMBROSE E. BARNES, Appellant, v. PETER P. DECKER, et al., Impleaded, &c., Respondent.

      Foreclosure of mortgage—right to redeem—pan-ties.

    The- owner of real property, parcel B, subject to a mortgage which also covers other property, parcel A, in which last-named property he has no interest, is not a necessary party to an action to foreclose a prior mortgage on said parcel A; and though the said parcel A be sold under the decree for such sum as leaves nothing to be applied on the second mortgage, covering also plaintiff’s premises, he cannot, by virtue of his said ownership of parcel B, be allowed to come in and redeem.
    Before Sedgwick, Ch. J., O’Gorman, and Ingraham, JJ.

      Decided May 9, 1883.
    Appeal by plaintiff from judgment ordered at special term, dismissing the complaint.
    The facts are as follows: There were two parcels of land in the city of New York, which may be called respectively A and B. Upon A there was a first mortgage and also a second mortgage, which second mortgage was also upon B. B was conveyed to the plaintiff, and was made by the conveyance subject to the mortgage upon it, it being recited that such mortgage rested in part upon other land. The first mortgage upon A was foreclosed. The plaintiff in the foreclosure action made as a party defendant one Schwenke, who had been the owner of the second mortgage, but before the foreclosure action had assigned it to the attorney, who appeared for the plaintiff in the foreclosure action. Schwenke had no knowledge of the pendency of the action, but an attorney appeared for him, at the request of the attorney for plaintiff in that action. The usual judgment of sale and foreclosure was entered. At the sale, the property was sold.at such a sum, that there was no surplus to be- applied to the second mortgage. It was bought by the plaintiff in that action. There was a claim upon the trial, that the conduct of the parties connected with the foreclosure was fraudulent as to plaintiff in this action , but as the relief he claimed depended upon his right to redeem the first mortgage of A, the subject of the foreclosure, enough facts have been stated for the purpose of the decision. The claim to redeem was placed upon the fact that parcel B was subject to the mortgage, the payment of which it was claimed should be borne, in whole or in part, by parcel A. The plaintiff demanded judgment, that he be entitled to redeem, etc.

      Charles W. Dayton, for appellant.

      R. Clarence Dorsett, for respondent Decker; Harrison & Langdon, for respondents Blake, Wheeler and Harrison; Abner C. Thomas, of counsel.
    The proper function of a foreclosure action is to extinguish the right, reserved by courts of equity to the mortgagor and his legal representatives, and termed the equity of redemption. This right belongs solely to the mortgagor and those who have derived the same interest in a lien upon the mortgaged premises under him. The person asking to redeem must have not only a jus ad rem, but a jus in re (Story's Eq. Jur., § 1023; Grant v. Duane, 9 Johns. 612; Lomax v. Bird, 1 Verm, 182; Boardman v. Catlett, 13 Sm. & Marsh. [Miss.] 149; McDougald v. Capron, 7 Gray, 278; Porter v. Reed, 19 Maine, 363). There is another right than the right to redeem which is similar to it, and the confusion between these two rights is all that gives any color to the plaintiff’s argument. That is the right which every surety has to pay the debt and be subrogated. In some cases it is not a matter of great importance to determine whether the one right or the other is being exercised; but they rest on entirely different principles and are easily distinguishable from each other (Ellsworth v. Lockwood, 42 N. Y. 89, 97). The right to redeem is an interest in the title junior to the mortgage lien. A right to pay and be subrogated, grows out of the obligation of suretyship. Those holding any portion of the title are necessary parties to the action to foreclose, but no mere surety is a necessary party. Thus, a mortgagor who has conveyed the title is not a necessary party to the action (Drury v. Clark, 16 How. 424); though such a mortgagor, if his grantee has assumed, may pay the debt and demand an assignment of the security (Johnson v. Zink, 52 Barb., 396). So, the personal representatives of a deceased mortgagor are not necessary parties to the foreclosure, though they may eventually be liable for deficiency (Leonard v. Morris, 9 Paige, 90). And the creditors at large of a deceased mortgagor who have not obtained any judgment lien cannot become parties, even on their own application (The People v. Erie Railway Co., 56 How. 122). It has also been held that, when a part of the mortgaged premises has been alienated by the mortgagor the grantee is not a necessary party to foreclose as to che balance remaining in the mortgagor (Hosgood v. Nichols, 1 Paige, 220).
    It is provided by statute, with respect to a referee’s deed in an action to foreclose, as follows : “ Such a conveyance is as valid as if it was executed by the mortgagor and mortgagee, and is an entire bar against each of them and against -each party to the action, who was summoned, and every person claiming from, through or under a party by title accruing after the filing of the notice of the pendency of the action (Code, § 1632). Such a deed is, therefore, equivalent to a deed executed by the plaintiff, and all the defendants (Parker v. Rochester & Syracuse R. R. Co., 17 N. Y. 283), and if a conveyance by all of the parties to an action to foreclose a mortgage, would convey a complete title, then all necessary persons have been joined. In this case there can be no doubt that a grant from all of the persons joined as' defendants in the foreclosure would have been ample to carry every interest, and that no deed from the plaintiff would have been required to perfect the title. The plaintiff had no interest in the title to be covered by a conveyance.1
    The precise question as to the necessity of making a person holding an interest in the land bound for a mortgage debt a party to a foreclosure against other land also bound for the same debt, was determined in Kirkham v. Dupont,

      Cal. 559. In this case A. and B. owned land in common, which they mortgaged to secure a debt of A.' Afterward A mortgaged his individual interest to D. The first mortgage was foreclosed without making the junior mortgagee of A.’s share a party. In an action to foreclose the junior mortgagee he offered to reclaim the whole of the property mortgaged. It was held that he could not do this, and that the sale was absolute, and that he could only redeem as to the interest on which he had a lien. (See also Green v. Dixon, 9 Wis. 532; Hosford v. Nichols, 1 Paige, 220).
   By the Court.—-Sedgwick, Ch. J.

—[After stating the facts as above.]—At the time of the action for foreclosure, the plaintiff had no interest in the premises mortgaged. He was not an owner of any incumbrance upon the premises. Of course he had not any title to the second mortgage upon parcel A, and which was upon his land, parcel B. It may be supposed that upon his paying or tendering the amount of the second mortgage, he might acquire an interest in the mortgage, so far as it affected parcel A. This would have involved an affirmative act, from which he voluntarily refrained. He having no interest in the equity of redemption of parcel A. it was not required of the plaintiff in the foreclosure action to make the plaintiff here a defendant in that action, for the purpose of foreclosing such right of redemption as was connected with the second mortgage. On the other hand, this right of redemption was foreclosed, not simply because the former owner, Schwenke, who appeared upon the record to be the then present owner, was made a defendant, but because the real owner was the attorney for that plaintiff and would be by force of the record estopped from claiming that the owner of the mortgage was not foreclosed. There is, moreover, no proof that the plaintiff conspired with his attorney, who was the owner of the second mortgage, to make Schwenke a defendant, instead of the real owner, for the purpose of misleading the plaintiff, nor is there proof that he was misled thereby.

As the relief demanded upon the trial was based upon the claim to a right to redeem, there is no necessity of inquiring if the plaintiff had, at any time, any other kind of relief.

Judgment affirmed, with costs.

O’Gorman and Ingraham, JJ., concur.


author: By the Court.—O’Gorman, J.

text:
    GEORGE GODFREY, as Administrator, &c., Respondent, v. OGDEN P. PELL, Appellant.

      Pledge of shares of stock—conversion—right of pledgee to set up title of third person.

    One who has received personal property as pledgee has no right to set up the claim of a third person as against his pledgor.
    Accordingly, where plaintiff, upon the death of his son intestate, assigned to defendant as security for moneys loaned plaintiff, his interest as next of kin in certain shares of stock owned by said intestate, and the certificates of said stock were delivered to and received by defendant as such security, he being at the time president of the corporation which had issued them, and thereafter upon plaintiff’s appointment as administrator of his said son, he tendered to defendant the amount of said loan to defendant and demanded the return of said certificates, which was refused by defendant upon the ground that the company had a claim against said intestate,— Held, that an action for conversion would lie.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided May 7, 1883.
    Appeal from judgment entered November 23, 1882, in favor of plaintiff for $5,902.31, damages and costs, and also from an order denying defendant’s motion for a new trial on the judge’s minutes, and to set aside the verdict.

      James M. Fisk, for appellant.

      Felix T. Murphy, for respondent.
   By the Court.—O’Gorman, J.

—This is an action1 to recover damages to the amount of $6,250, with interest, by reason of the conversion by defendant of four hundred and ninety-nine shares of the capital stock of the “Business Address Company.”

The case was tried before Judge Truax and a jury, and a verdict rendered for $5,523.87. When the plaintiff rested his case, a motion was made for dismissal of the complaint. A motion was also made to set aside the verdict as excessive in amount, against the weight of evidence, as contrary-to law, and for a new trial, which motion was also denied. Evidence was given sustaining the following statement of facts:

George Godfrey, Jr., died in the city of Hew York on February 13, 1882. He was at the time president of the 11 Business Address Company,” a corporation doing business in the city of Hew York, and he possessed certificates of stock in that company representing four hundred and ninety-nine shares and one proxy. The whole number of shares was one thousand, the par value being $10. On February 14, the day after his death, the plaintiff, who was the father of the deceased, and' Lorenzo Godfrey, the brother of the deceased, applied to the defendant for a loan of $500, and executed thereupon the following agreement:

“ Hew York, February 14, 1882.
“ In consideration of $500, to be advanced to us from time to time as we may require, we hereby assign to Mr. Ogden P. Pell, Esq., all our right and title and interest that we hold as heirs of George Godfrey, Jr., deceased, amounting to four hundred and forty-nine shares of the stock of the Business Address Company (“ Godfrey’s lists ”), to be held by the said Ogden Pell as collateral security only, the said loan to extend for the term of sixty days, at which time the said loan to be paid with interest. The. drafts of George Godfrey and Lorenzo H. Godfrey, when paid, to be considered as receipts for money advanced. The said George Godfrey and Lorenzo H. Godfrey do not convey any right during the term named to vote on said stock at any business meeting of the said company, and we further jointly and severally obligate ourselves to pay the said five hundred dollars from the first moneys that may be realized out of the estate of George Godfrey, Jr., deceased, or otherwise. Done in duplicate, erasures, interlineations before signing. Geo. Godfrey, L. H. Godfrey.
“Witness, P. E. De Mille.

“ Stock supposed to be in Business Address Company’s safe when opened to be retained.”

This agreement was delivered to the defendant on the day of its date. At this time, administration had not been granted on the estate of the deceased. The certificates of this stock were at the time in an inner safe within a larger safe of the company in their office in Vesey street. The key of this inner safe had been in the possession of the deceased, but could not be found after his death. On February 20, 1882, this inner safe was broken open, and the papers of the deceased were taken out, in the presence of the plaintiff, the defendant, Mr. Murphy, attorney acting for the estate of the deceased, and Mr. Brennan, an officer of the company. Among the papers of the deceased were found nine certificates, representing four hundred and ninety-nine shares of stock issued to the deceased and one proxy. These certificates were put into a sealed envelope and indorsed by Mr. Murphy, as he testifies, thus: ‘ ‘ Certificates of stock of the Business Address Co., to be retained by Mr. Pell until the payment of his loan.” This envelope so indorsed was then, as Mr. Murphy testifies, handed to the defendant, who took the same, saying, “ Whenever you have your money to pay this loan, I shall be only too happy to return it; ” and at different times he gave to George Godfrey the sum required, $470. On March 2,1882, the plaintiff was appointed administrator of the estate of George Godfrey, Jr. On March 16, the plaintiff executed the following agreement :

“¡New York, March 16, 1882.
“In consideration of one dollar in hand paid, and a further consideration of $3,000, to be paid on or before March 20, 1882, we, the undersigned, agree to assign and deliver to James F. Brennan, or his assigns, four hundred and ninety-nine (499) shares and one proxy of the stock of the Business Address Co., now held by O. P. Pell as collateral to loan, the said $3,000 being in full payment of said stocks, with all our right, title and interest to and in same. The indebtedness of George Godfrey, J., deceased, to the Business Address Co., amounting to $896.86, to be deducted from the above amount, and put in trust abiding settlement of same. The trust to be agreed upon by the parties interested.
i Felix T. M. (O. K.)
(Signed) \ Geo. Godfrey, Administrator.
( By L. R. Harbison, Attorney.”

To this document, was attached the following agreement of sale of the certificates by Brennan to one James A. Duffy :

“In consideration of the sum of $1, and other good and valuable considerations to me in hand paid, I, James F. Brennan, do hereby sell, assign, transfer and set over to James A. Duffy and his assigns forever, all my right, title and interest, in and to the within instrument, and the certificates of stock therein referred to, and I do hereby fully authorize him or his authorized attorney to receive and duly receipt for the same. In witness whereof I have this 17th of March, 1882, set my hand and seal.
“James F. Brennan.
“ Witness: Geo. B. Ward.”

Immediately after the death of Godfrey, Jr., the defendant had been elected president of the company. It is in evidence that on March 20, the plaintiff and Mr. Harbison, his attorney, and Mr. Brown, the attorney for Mr. Brennan, called at the office of the company, and the plaintiff tendered the defendant $473 and demanded the stock. The defendant refused, alleging as a reason that the deceased owed the company $1,100; and he would nob deliver the stock until that indebtedness was paid. Harbison told the defendant that the plaintiff had contracted to sell the stock to Brennan for $3,000, and Brown exhibited bills in his possession for that amount in readiness to complete the purchase ; and demanded the certificates of stock and that a proper transfer should be made. About March 26, or 27, Harbison again had an interview with the defendant together with Murphy, who was the attorney for the estate of the deceased ; and a tender of $500 was again made to defendant, who again refused. Defendant then stated that he was acting under the advice of the lawyer of Mr. Duffy, and produced a letter which he had received from him dated March 21, requesting him to hold the 'stock. At the former interview of March 20, the certificates of stock were got from the safe, and produced by defendant. It is also in evidence that the defendant exhibited and called attention to a by-law of the company, prohibiting the transfer of stock when the owner owed money to the company. The defendant in Ms affidavit, admits that the indebtedness of the deceased to the company was $896.86.

This is in substance the case for the plaintiff as it appeared in evidence.

The testimony of defendant, and testimony in his behalf, although in some respects different, does not materially contradict the testimony or affect the legal aspect of the case for the plaintiff.

The jury might reasonably have concluded the facts to be, that the plaintiff, being in immediate need of money on the sudden death of Ms son, borrowed $470 from the defendant on the strength of the agreement in evidence, and on the security of the four hundred and ninety-nine shares of the stock of the company, to which deceased was entitled ; that the nine certificates, representing such shares of stock, were found with the other property of the deceased; that such certificates were delivered to the defendant, and as a pledge for the payment of the amount lent by him ; and were so received by him, not as president of the company, but as an individual, to be returned by him to the legal representatives of the deceased when the money was repaid; that the plaintiff, on receiving letters of administration on the estate of the deceased, ratified the agreement, and in pursuance thereof, on or about March 20, tendered the defendant the money loaned ; and demanded the return of the stock, which plaintiff refused.

It will be perceived that all through this case, as well in the- pleadings as in the evidence, no distinction is drawn between “shares of stock,” and “certificates of stock,” although the two phrases differ widely in technical meaning, the former being only the legal right to share in the profits and capital of the company, which is of course a thing intangible and incapable of physical delivery or conversion, while the latter phrase means the documents setting forth that right, and which may pass from hand to hand, and are capable of being locked up in a safe, or delivered, or withheld. It is however clear, that the parties to this action, in using the phrase, “shares of stock,” and in all their dealings on the subject, had in view only the latter subject, that is to say, “nine certificates of stock.”

It may be remarked, that the reason for defendant’s refusal to return these certificates, as stated by him as a witness, and founded on the indebtedness of the deceased to the company, is not stated in the answer; and it constitutes no ground of defense in this action.'

The defendant having received these shares as a pledge, was bound to retain them for the purposes of the agreement, and to restore them when the money lent by him on the strength of the pledge, was returned.

The demand was made on him by the plaintiff, for the purpose of carrying out the terms of an executory agreement for the sale of the stock by the plaintiff, which depended on the return to the plaintiff of the certificates, and the defendant has proved no justification for his refusal. The plaintiff alone, at that time, was entitled to possession of the certificates. The defendant,-as pledgee, had no right to set up the claim of a third person as against the title of his pledgor (Bates v. Stanton, 1 Duer, 84; Lund v. Seaman’s Bank, 37 Barb. 132).

The fact urged on the trial of the action as a justification of refusal, to wit, the indebtedness of the deceased to the company, gave the company no lien on these certificates of stock, although it might have warranted the defendant or proper officer of the company, in refusing to enter the transfer of the stock on the books of the company. It certainly constituted no reason for the defendant to retain them in his possession after payment or tender of the amount lent by him.

The plaintiff, as administrator of his deceased son, might well have hesitated to acknowledge any indebtedness to the company, and have demanded return of the certificates, notwithstanding a claim of such indebtedness.

In the agreement for the sale of the stock made by him, however, he made provisions for deposit of $896.86 pending investigation, which was the amount claimed by defendant to be due to the company. The defendant himself testified that he would not have delivered the stock any way.

The motion for a nonsuit was therefore properly denied.

The charge of the learned trial judge seems to have fairly submitted the facts to the jury, and no error was committed therein.

The question of the value of the certificates, was also left to the jury; and this court would not feel justified in setting at naught their verdict, on a question of fact so peculiarly within their proper sphere of inquiry, and sustained by evidence the weight of which it was their duty to determine.

The judgment should be affirmed, with costs, and the order appealed from affirmed, with $10 costs.

Sedgwick, Ch. J., and Ingraham, J., concurred.


author: By the Court.-—O’Gorman, J. Sedgwick, Ch. J.—[Concurring.]

text:
    MARCUS NEWBERG, Respondent, v. JOSEPH SCHWAB, et al., Appellants.

      Attorney—right to sue on undertaking assigned to him. with judgment.

    An attorney who has recovered a judgment for his claim upon which he has has a lien for professional services, may take an assignment thereof, together with the undertaldng given in the action, in payment of said services, and may bring an an action on such an undertaking in his own name.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided May 7, 1883.

      Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury by direction of the court for the sum of $603.02.
    The facts are as follows : One Lewis Beckel sued George M. Mittnacht to recover the possession of a certain safe, keys, &c., or their value; in that action the defendant was arrested for eloigning the property, and gave an undertaking upon arrest, his bail being the defendants in this action. Said action was tried and resulted in a judgment for the plaintiff Lewis Beckel; execution was duly issued therein and returned unsatisfied. The said judgment was thereafter assigned to this plaintiff, together with the undertaking upon arrest above referred to, and this action upon the undertaking was then brought.
    The plaintiff was the attorney for the plaintiff in the case of Beckel v. Mittnacht, and took the assignment to protect a lien on the judgment in that action, in which the undertaking in suit was given and in payment for services rendered by him therein.

      Christopher Fine, for appellants.

      Goff & Pollock, for respondent.
   By the Court.-—O’Gorman, J.

—This case was tried before Judge Freedman and a jury.

The chief question discussed was whether an attorney, having obtained a judgment in favor of his client, who was plaintiff in an action of replevin, upon which judgment he had a lien for his professional services, can, on the assignment of such judgment to him, succeed in an action in his own name against the sureties of the defendants in such action of replevin.

There is no legal objection to an attorney taking an assignment of a judgment in favor of his client in payment of any debt due to him by said client; and becoming thus the lawful owner of the judgment (Coughlin v. N. Y. C. & H. R. R. R., 71 N. Y. 443).

There is no reason why he should not be entitled to put in force all the lawful means which the assignor possessed to make the judgment effectual.

The right to compel the sureties to respond for the default of their principals, the defendants in that replevin action, was one, and the most effectual of these means, and went with the assignment and the legal ownership of the judgment.

The judgment should be affirmed with costs.

Sedgwick, Ch. J.—[Concurring.]

—On the whole case, 1 am of opinion that judgment should be affirmed, with costs.

Ingraham, J., concurred.


author: “Truax, J.

text:
    JOHN G. BROOKS, et al., Appellants, v. THE MEXICAN CONSTRUCTION CO., Respondent.

      foreign corporations—jurisdiction over—when objection as to waived.

    The court has no jurisdiction over a foreign corporation in an action brought against it by a non-resident, except as provided for in section 1780 of the Code of Civil Procedure; and the objection to the jurisdiction maybe taken at any time, although defendant has appeared generally, and put in an answer in which such objection is not taken.
    Where certain of several joint plaintiffs, e. g., joint owners of a vessel, for an injury, to which, beyond the jurisdiction of this state, the action is brought, are non-residents, and the remainder are residents, the objection to the jurisdiction still holds good.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided May 9, 1883.
    Appeal by plaintiffs from order vacating attachment.
    The plaintiffs were owners of the brig James Miller, and the defendant a foreign corporation. The action was- to recover damages for injuries done to the brig by collision with a steam lighter belonging to the defendant, at a port on the Texas coast. The summons and complaint were personally served upon defendant’s secretary in this city on-July 8, 1882.. On July 14, an attachment herein was granted and levied, upon property of the defendant in this city. This attachment the defendant moved to set aside upon the ground that the court had not jurisdiction of the action. The motion was founded upon the summons and complaint, the affidavit upon which the attachment was obtained and an affidavit used by plaintiffs on July 11, upon an application to examine a witness before trial. By this latter affidavit it appeared that the plaintiffs, except two of them, were non-residents of this city. These two were residents. The motion was made before issue joined; but on the argument of the motion, plaintiffs’ attorney read defendant’s answer and his own affidavit, and sought to sustain the attachment by the proposition, that as the defendant had appeared and answered and omitted in its answer to set up as a defense, the fact that some of the plaintiffs were non-residents, the defendant must be held to have waived the defect. From an order granting the motion this appeal is taken.

      Henry D. Hotchkiss, for appellants.
    —The cause of action was joint, as the several owners of a ship make but one owner (see Abbott on Ship. 5th Am. Ed. Story & P. Notes, 146; Coster v. N. Y. & E. R. R., 3 Abb. Pr. 332); and the remedy was equally joint, and the residence within the city of some of the plaintiffs conferred upon this court jurisdiction of the whole controversy (Hobert v. E. Tenn. Va. & Ga. R. R. Co., 4 Law Bul. 26; People ex rel. Mills v. Superior Court, &c., 19 Wend., 119; Porter v. Lord, 4 Duer, 682). The court below based its decision upon Harriott v. N. J. R. R. Co. (8 Abb. Pr. 284), but in that case it did not appear that any of the plaintiffs were residents of the city. Having failed to plead its objection, § 226, providing that the jurisdiction of a superior city court is always to be presumed, etc. gave the court jurisdiction of the cause of action, and by its appearance and answer defendant waived the privilege of § 1780, which is personal in nature. Under section 447 Code Procedure, which is similar to section. 1780 {supra), it was held that a voluntary appearance and answer to the merits, was a waiver of an objection similar to that involved herein (McCormick v. Penn. R. R., 49 N. Y. 303).

      T. F. H. Meyer and Mr. Zabriskie, for respondent.
    —Cases in which action may be prosecuted within this state against foreign corporations, are specified in section 1780 of the Code, and to those cases the jurisdiction of the courts is limited (Ervin v. Oregon R’y. & Nav. Co., 62 How. 490; see also Harriott v. N. J. R. R. Co., 8 Abb. 284; and McMahon v. Mutual Benefit Life Ins. Co., 8 Abb. 297). There are decisions which seem to hold that, under the wording of section 427 of the old Code, the question of jurisdiction as far as concerned actions in the supreme court was a personal one which might be waived, but that they have no application as the law stands at present will be apparent from a comparison of the language used in section 427 of the old Code, and that used in section 1780 of the present Code. In the latter the words “may be maintained only” are used instead of the words “may be brought,” in the former. The change is significant. In the line of decisions referred to, the words “ may be brought,” as used in section 427, received an interpretation which will not fit the words “may be maintained only,” used in section 1780. Section 1780 deprives the courts of the state of the power to hear and determine the cause of action alleged in this case, so far as the, non-resident plaintiffs are concerned,, and lack of jurisdiction of the cause of action cannot be cured or waived.
   The following opinion was rendered by the court below:

“Truax, J.

—All the plaintiffs are not residents, therefore they cannot maintain this action. The defendant by appearing and answering has not waived the objection that the court has not jurisdiction of the action (Harriott v. N. J. R. R. Co., 8 Abb. Pr. 284). The attachment is vacated with $10 costs.”

Upon a re-argument the following additional opinion was rendered:

“Truax, J.—If the plaintiff’s view of the meaning of sections 266 and 1780 of the Code of Civil Procedure is the right one, this court would have jurisdiction of an action brought by a non-resident against a foreign corporation when the supreme court has not jurisdiction. I do not think that such was the intention of the legislature. Section 1780 provides that in certain cases only shall any of the courts of this state have jurisdiction over a foreign corporation in actions brought by a non-resident plaintiff, and there mentions the cases.

“The case is not one of the cases mentioned in that section, but the plaintiffs contend section 266 provides that the jurisdiction of a superior city court may be'.presumed, and that a want of- jurisdiction by reason of the non-existence of any of the jurisdictional facts specified in section 263 is a matter of defense, and is waived by the appearance of the defendant, unless it is pleaded in defense, and that the defendant not having pleaded that the plaintiffs are nonresidents, cannot raise the question of jurisdiction on a motion to vacate an attachment; such, however, is not the meaning of those sections. They mean that the plaintiff need not set forth in his complaint that the contract sued on was made, executed or delivered within the state, or that the cause of action arose within the state, or that a warrant of attachment has been actually levied within this city, or that the summons has been actually served within this city, but that in a case in which the supreme court has jurisdiction, if the non-existence of these facts is not set up in the answer, the court will presume that they do exist.

‘11 am therefore of the opinion that this court has no jurisdiction over a foreign coporation in an action brought by a non-resident against such corporation, and that the objection to the jurisdiction of the court may be taken at any time, although it has not been taken in the answer.

“The motion to vacate the attachment is granted, with $10 costs.”

The following decision was rendered at general term:

Per Curiam. —Order affirmed, with $10 costs, on opinion below.


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

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

      Contract—when extrinsic evidence admissible to explain phrase m.

    Where the defendants, who where book-publishers, employed the plaintiff to canvass for certain'serial publications, under a written contract, in which they agreed to pay him “four dollars an order” for the subscriptions taken by him; in an action by plaintiff for his commissions,

      Held, that extrinsic evidence was admissible to show that said phrase had a well-settled meaning in the business, understood by both parties, viz.: four dollars for each bond fide subscription taken for the whole work, after the subscriber had accepted and paid for ten parts thereof.

      Further held, that the books of account of defendants, the publishers, containing statements of subscriptions obtained by plaintiff, and other agents, of which latter there was_no proof that defendant had knowledge, were admissible in proof of the meaning of said phrase.

      Further held, that in determining whether or not said phrase was so clear and definite that extrinsic evidence is inadmissible, regard must be had to the consideration that it was used in a contract which had pecuniary gain for its object and to describe the means by which it was to be reached.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided May 16, 1883.
    Appeal by plaintiff, from judgment entered upon report of referee.
    The facts are stated in the opinion.

      W. W. Badger, attorney, and L. E. Chittenden, of counsel, for appellant.
    -—The referee clearly erred (1) in admitting evidence that the term “so much an order” had a settled meaning in the business, in connection with the payment of a canvasser for serials, and (2) in admitting evidence of what that meaning is. If the expression “in the business” refers to the house of the defendants in particular without reference to other houses in a similar business, it is indispensible that the defendant show knowledge on the part of the plaintiff of the particular usage by virtue of which defendants seek to give the term “so much an order” a peculiar meaning. This was not shown (Flynn v. Murphy, 21 E. D. S. 378; Walls v. Bailey, 49 N. Y. 468; Hills v. Hibernian Ins. Co., 10 Hun, 29; Sipperly v. Stewart, 50 Barb. 68; Wadley v. Davis, 63 Barb. 500; Lawson on Usages and Customs, 5; quoting Stevens v. Reeves, 9 Pick. 198; and Womersly v. Dally, 26 L. J. [Exch.] 119). 1. Usage to be admissible must be not only certain, settled, general, legal and reasonable, but besides it must be uniform and must not be inconsistent with the terms of a contract (Hinton v. Locke, 5 Hill, 537; Lawrence v. Maxwell, 53 N. Y. 19; Bank of Commerce v. Bissell, 72 N. Y. 615; Holmes v. Pettengill, 60 N. Y. 646; affi’g S. C., 1 Hun, 316; Walls v. Bailey, 49 N. Y. 468, and cases cited; Lawrence v. Gallagher, 10 J. & S. 309; Humphrey v. Dale, 7 E. & B., 256; S. C., affi’d, E. B. & E. 1004; 2 Pars. Cont. *546; Lawson on Usages and Customs, 369; Collender v. Dinsmore, 55 N. Y. 200; Wescott v. Thompson, 18 N. Y. 367; Bassett v. Lederer, 1 Hun, 274; Blackett v. The Royal Exch. Ass. Co. 2 Cr. & J. 244, cur per L. Lyndhurst, Yates v. Pym, 6 Taunt. 446; Simmons v. Law, 3 Keyes, 219; Mutual Safety Ins. Co. v. Hone, 2 N. Y. 244; Van Alstyne v. Ætna Ins. Co., 14 Hun, 360; Groat v. Grile, 51 N. Y. 431; Bradley v. Wheeler, 44 N. Y. 503; Higgins v. Moore, 34 N. Y. 422). To construe $4 an order as meaning “ $4 for only such orders as are proved to be good by the delivery, acceptance of and payment for ten parts of a serial ” is to contradict the plain terms of a contract (See cases cited, supra; Walls v. Bailey, 49 N. Y. 468; Hinton v. Locke, 5 Hill, 437; Hill v. Hibernia Ins. Co., 10 Hun, 29; Main v. Eagle, 1 E. D. S. 619; Holmes v. Pettingill, 1 Hun, 316, S. C. aff’d, 60 N. Y. 646). If the expression “in the business” refers to the usage of the trade in general and not to the house of the defendants in particular, it is still indispensable that the plaintiff have knowledge of the usage (Harris v. Tumbridge, 83 N. Y. 100; Walls v. Bailey, 49 N. Y. 468; Miller v. Burke, 68 N. Y. 615; Lawson on Usages and Customs, 40).
    The referee also erred in admitting the books of account of the defendants; because the sole obiect of their introduction was to show what the contract was between the plaintiff and the defendants, and this cannot be done for the reason that it is clearly incompetent to allow a party to prove his declaration while performing or endeavoring to perform his agreemen t, for the purpose of characterizing the agreement itself (Moore v. Meacham, 10 N. Y. 207; Peck v. Von Keller, 76 N. Y. 604; aff’g S. C., 15 Hun, 470; Reed v. U. S. Express Co., 48 N. Y. 468; Whitehouse v. Bk. of Cooperstown, 48 N. Y. 239).

      Douglas Campbell, for respondents.
   By the Court.—Sedgwick, Ch. J.

—The referee found that the defendants, who are book-publishers, employed the plaintiff to canvass for certain serial publications, agreeing to pay him for his services the sum of $4 an order for the subscriptions taken by him. He further found that “ the expression $4 an order” had a well-settled meaning in the business in which the defendants were engaged and was understood at the time by both defendant and plaintiff to mean that the canvasser should be paid $4 for each bona fide subscription taken for the whole work after the subscriber had accepted and paid for ten parts or numbers thereof.

There was sufficient evidence to support the finding of the referee that-the expression did have the meaning, as he found and that it was understood by both parties. The appellant contends that the contract, as found by the referee, was so clear in its meaning and so definite, that resort could not competently be had to extrinsic facts to determine the meaning of the words, $4 an order, for the subscriptions taken by him.

In attempting to perceive, whether the phrase be clear and definite in meaning or ambiguous and indefinite, regard must be had to this consideration that the phrase was used to form a contract which had pecuniary gain for its object and to describe the means by which the gain wras to be reached. ' The benefit would come to the defendants, not from the form or mere fact of subscription, but from its .anticipated consequence of fulfillment. The opportunity of benefit, would exist in the subscribers being likely to fulfill his subscription. Clearly the contract did not mean, to refer to subscriptions or orders that were su in form only, when from any cause, it was unlikely that the subscriber would take the book. After this is considered, there is uncertainty, as to the degree of likelihood of performance, that would be within the intention of the contract, and as to what characteristics of the subscription shall determine the kind of subscription intended. The words refer to several classes or kinds. In feuch case, section 288 of Green-leaf \s Evidence states the law, as follows: “ If the language ■of the instrument is applicable to several persons, to several parcels of land, to several species of goods, to several muniments or boundaries, to several writings, or the terms be vague and general,, or have diverse meanings, in household furniture, stock, freight, factory prices and the like, parol evidence is admissible of any extrinsic circumstances tending to show what person or persons or what things were intended by the party, or to ascertain his meaning in any other respect.”

There was, therefore, no error in the referee’s reverting to facts given in evidence for the purpose of showing what kind of order the parties meant to designate by the words used in the contract.

Against the objection of. plaintiff, the defendants were allowed to give in evidence certain accounts from their own books. Part of these accounts contained statements of subscriptions taken by other canvassers than plaintiff, and part contained statements of subscriptions obtained by plaintiff. There was no proof that the plaintiff had had any knowledge of the accounts of other canvassers, but I am of opinion they were admissible in proof of what was the meaning of the phrase that has been referred to. There was a probability that the circumstances being the same, the words would be used in the same sense in all the cases. As to the plaintiff’s account in defendants’ book, it was. admissible for a like reason, and there was some evidence-that the plaintiff knew what the entires were and made a settlement with reference thereto.

The judgment should be affirmed with cost.

O’Gorman and Ingraham, JJ., concurred.


author: By the Court.—Ingraham, J.

text:
    CANADA SHIPPING CO., Respondent, v. WALTER S. SINCLAIR, Appellant.

      Order for examination.—Privilege of zoitness, when to he asserted.

    The affidavit upon which the order for the examination of defendants to enable plaintiff to frame its complaint, was granted, showed that plaintiff, as common carrier, had a special property in certain goods which were stolen from it, and thereafter a portion of the same came into the possession of defendants, and that the action was brought to recover the same or its value; that plaintiff was unable to state the number of bales, their weight, etc.

      Held, that in this case, the order should not be set aside on the ground that the testimony to he given would make defendants liable to indictment for receiving stolen goods, but defendant should be left to take the objection) on the examination.
    Before Truax and Ingraham, JJ.

      Decided May 16, 1883.
    Appeal from an order of the special term, denying motion of defendant to vacate an order for the examination of defendant to enable plaintiff to frame the complaint in this action.
    The facts appear in the opinion.

      Richard S. Newcomb, for appellant.
    —A party cannot be examined before trial when the examination would tend to show that he had committed a crime or misdemeanor, or would subject him to a criminal prosecution or to arrest (Taylor v. Bruen, 2 Barb. Ch. 301; Leggett v. Postley, 3 Paige Ch. 599; Corbett v. De Comean, 44 Super. Ct. 306; Yamato Trading Co. v. Brown, 63 How. 283; Henry
      v. Bank of Salina, 1 N. Y. 83; Burbank v. Reed, 11 Week. Dig. 576; S. C., 1 Civ. Pr. Rep. 42; Phoenix v. Dupuy, 2 Abb. N. C. 146; Beebe v. Richardson, 2 McC. C. P. Rep. 319; Juillard v. Hamlin, Id. 321; Russ v. Campbell, 1 Civ. Pr. Rep. 41; Walker v. Dunleavy, 2 McC. Civ. Pr. Rep. 6). The court will not allow an examination to proceed where it is evident that the witness cannot be compelled to answer a single material question under it, as in this case (Corbett v. De Comeau, 44 Super. Ct. 312). In such case, to compel the defendant to take the oath and then reassert his privilege, would be an idle ceremony (March v. Davidson, 9 Paige, 586; Burgess v. Smith, 2 Barb. Ch. 276; Dykers v. Wilder, 3 Edw. Ch. 496).

      C. Stewart Davison, for respondent.
   By the Court.—Ingraham, J.

—From the affidavit on which the order for the examination of the defendant was granted, it appears that plaintiff had, as common carrier, a special property in thirty-one bales of rubber, which were stolen from the plaintiff about January 10, 1883, and “some portion of which were in possession of defendant; that the action was begun to recover the return of the property or the value thereof from the defendant; and that- it was impossible for plaintiff to allege the number of the bales that came into possession of the defendant, or the weight of the rubber, or to properly frame the complaint, without the examination of - the defendant. On the affidavit, the-defendant moved to vacate the order for the examination of the defendants, which motion was denied, and from that order denying such motion, the defendants appeal.

The ground upon which it is claimed that the order should be reversed is, “ that the testimony to be given would make defendant liable to indictment for receiving-stolen goods.”

The possession of goods that have been stolen is not of itself a crime. The crime is only committed when a person buys or receives property stolen from another, knowing the same to have been stolen (2 R. S. [Edm.] 700 § 71).

The right of a witness to object to answer a question which would tend to convict him of a crime is a personal privilege, and should be "urged when he is asked the questions having such a tendency.

It is not sufficient ground for setting aside an order for his examination, unless it should appear that the testimony which the party seeks to obtain relates exclusively to facts, which if proven, would show that the witness was guilty of a crime.

In this case the object of the examination is to identify the goods stolen from the plaintiff which it is claimed came into the possession of the defendant.

That of itself would not be a crime. It would undoubtedly be one of the facts which it would be necessary to prove to convict of the crime of receiving stolen goods; but as the fact is consistent with the innocence of the defendant, 1 am of the opinion that the objection should be left to be passed on upon the examination itself (Batterson v. Sanford, 45 Super. Ct. 127).

The order should be affirmed, but without costs.

Truax, J.—I concur in the result, because I think that in this particular case the defendant should be left to take the objection upon the examination.


author: Per Curiam.

text:
    MARGARET W. DUYCKINCK, Respondent, v. THE NEW YORK ELEVATED R. R. Co., et al., Appellants.

      Amended answer—right to serve, waiver of.

    The defendant’s right to amend his answer as of course, is not waived by his service thereafter of notice of trial.
    Under section 542 of the Code of Civil Procedure, the plaintiff has no right to demand that such an answer be stricken out, unless it appears that it was amended for purpose of delay.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided May 16, 1883.

      Appeal by defendant from order striking out amended answer of defendant.

      Deyo, Duer & Bauerdorf, for appellants.

      A. Edward Woodruff, for respondent.
   Per Curiam.

-—The amended answer was served within the twenty days named in the Code as the period within which an amended pleading may be served as of course. Before it was served, both parties had noticed the issues for trial. The respondent contends, that noticing an issue for trial, is a waiver by the party noticing of a right to thereafter amend as of course,- under section 542 of the Code of Civil Procedure. Some cases cited support the proposition. These cases, however, do not so definitely and clearly state the law as it is stated in section 542. That section states when and why an answer otherwise properly amended as of course, may be stricken out. The plaintiff had no right to demand that the answer be stricken out, unless it is shown that the pleading was ámended for the purpose of delay, and this is a matter not connected with considerations, that are attached to the service of notice of trial. The affidavit below did not charge that the amendment was for delay, although it made charges as to the ulterior purpose of the' amendment. The order to show cause, did not state any ground of motion. The affidavit, however, for the defendants, was made by one of their attorneys, and averred that the answer was served in good faith and not for the purpose of any delay. The general circumstances seem to show that delay was not the purpose of the amendment. It is not meant to be said that the amendment was or was not frivolous, or that in a proper case, if the amendment is frivolous, it is not sufficient evidence of a purpose to delay. The decision is upon the facts of the case.

The order is reversed, with $10 costs to appellant to abide the event.

__________ __ I

I


text:
    REBECCA DEADY v. THE BANK CLERKS’ MUTUAL BENEFIT ASSOCIATION.

      Mutual benefit associations— Contracts.

    The defendant corporation was a mutual benefit association having for its object provision for the families, etc., of deceased members, out of a fund accumulated for the purpose, the by-laws providing that each member might, by written notice, designate to whom the payment should be made on his decease. Plaintiff’s son, a member, so designated plaintiff, and the board of management of defendant issued to him a certificate agreeing to pay to her said sum on the son’s death. Thereafter, without plaintiff’s knowledge, her son surrendered said certificate to defendant, and received in place of it another certificate designating his wife as the person to whom such payment should be made, and soon after he died.

      Meld, that defendant was not bound to pay to plaintiff, the mother, the sum mentioned in the certificate, and that said certificate was not operative as a contract; arid further, that the power to designate was not exhausted by one designation.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided June 2, 1883.
    This action was tried- before the court and a jury. The court ordered a verdict for the plaintiff, and then directed that the exceptions be heard in the first instance at the general term.
    The facts of the case are as follows: The defendant was and still is a corporation, duly organized and existing under and by virtue of chapter 319 of the laws of the State of New' York, passed April 13, Í848, and of the several acts amendatory thereof.
    The object or business of said corporation is to relieve the necessities of aged and disabled, and to benefit the families of deceased officers and clerks, connected with the banks and savings’ banks of New York and vicinity, and to ' provide by contribution of its members a fund out of which, there shall be paid to any person or persons previously designated by the deceased member to receive it, the sum of five hundred dollars, and a sum equal to fifty cents for every member of said association at the time of his decease, in addition thereto.

      Oh and. previous to October 25, 1875, Richard J. B. - Beady, of the city of New York (who was the son of the plaintiff), was and continued to be down to the time of his -decease, a clerk in the employ of the Merchants’ Exchange National Bank of the City of New York, and on or about said October 25, 1875, the said Richard J. B. Beady was duly admitted and accepted as a member of the said association, and then and there duly paid to said defendant the initiation fee provided by its by-laws, and continued to pay to said association all dues and assessments up to the time -of his death.
    The by-laws of said association provide that any member ¡ may by written notice to the board of management, designate to whom the sum due at the time of his death shall be paid.
    On the day last aforesaid, Richard J. B. Beady, duly’ and in writing, and pursuant to the provisions of the by-laws of said association, designated this plaintiff as the person to whom the sum so due or to grow due, should be paid ;, and thereupon, the said defendant, at the request of said Richard J. B. Beady, issued and delivered a paper writing,; . of which the following is a copy, viz :
    “ No. 1284. Bank Clerks’ Mutual Benefit Association of . the City of New York. New York, October 25, 1875.
    : “ This is to certify that Richard J. B. Beady, having paid the initiation fee as required by the constitution, Is hereby created a member of the Bank Clerks’ Mutual Benefit Association of the City of New York, and the said association hereby agrees to pay to his mother, Rebecca Beady, within thirty days after satisfactory proof of his death, or to himself, if permanently disabled, as many dollars as he may be entitled to under the provisions of the constitution regulating the same, provided he shall be a member in good standing at the time of his death or disability.
    “O. B. Baldwin, President.
    Countersigned [Seal] “ John H. Brennan, Corr. Sect.”
    Thereafter and on the same day, the said Richard J. B. Beady delivered said certificate to this plaintiff; thereafter and on January 26, 1882, the said Richard J. B. Deady died; at the time of his decease he was a member in good standing of said association ; due notice of his said death was given to said-association ; at the time of his said death, there was due from said association the sum of eleven hundred dollars. .
    On January 23, 1882, Richard J. B. Deady surrendered to the defendant the said certificate which had been given to him for safe keeping by the plaintiff and received in the-place of it a certificate in which one Emma L. Deady, was designated as the person to whom the money should be paid. The said certificate was surrendered without the-knowledge or consent of the plaintiff.
    Further facts appear in the opinion.

      John Callahan and James Flynn, for plaintiff.
    —By the provisions of its. constitution and by-laws, and by the-act under which it is organized, the defendant had full power and authority to make the contract or agreement set forth in the complaint (Gunlach v. Germania Mec. Asso., 4 Hun, 339). Mr. Deady gave to the plaintiff that contract containing the provision making her the beneficiary; he-could not thereafter surrender, cancel or change its effect without her consent (Lemon v. Phœnix Mutual Life Ins. Co., 38 Conn. 294; Whitehead v. New York Life Ins. Co., 63 How. 394; Bliss on Ins. § 339 [2d ed.]). The case of Durian v. Central Verein (7 Daly, 168), is not adverse to-this view. The question there was as to the effect of a. change made in the constitution of the society. In this-case Mr. Deady, under the express provisions of the constitution and by-laws of the assciation, designated his mother as the beneficiary, and gave to her the contract or agree- ‘ ment making her such, thus placing in her hands and beyond his own control the means of enforcing her claim to-the money.

      Carlisle Norwood, Jr., for defendant.
    —The allegation of incorporation establishes that the defendant is not a life-insurance company. The act under which it was founded is entitled “An act for the incorporation of benevolent, charitable, and scientific and missionary societies” (L. 1848, c. 319, 2 R. S. [7th ed.], 1701). A reference to the act (§ 1), will show for what purposes corporations may be formed under it. The character of this corporation, as shown in the complaint, is an association for benevolent purposes. Such a corporation cannot issue a policy of insurance, and its certificate is only a certificate of membership, containing an acknowledgment on the association’s part, that it has received notice of the designation by the member of a person who is to be the recipient of its benevolence on the death of such member (Durian v. The Central Verein, &c., 7 Daly, 169). The further provisions of the act so expressly restrict, corporations formed, that any contract in the nature of a policy of life insurance would be ultra vires. The act provides : “Every corporation formed under this act shall possess the powers and be subject to the provisions and restrictions contained in the 3d title of the 18th chap, of the first part of the R. S.” (2 R. S. [7th ed.] § 9, p. 1703). The provisions and restrictions referred to contain the following: “ § 3. In addition to the powers enumerated in the first section of this title, and to those expressly given in the charter or in the act under which it is or shall be incorporated, no corporation shall possess or exercise any corporate powers, except such as shall be necessary to the exercise of the powers so enumerated and given” (2 R. S. [7th ed.] p. 1531). It was perfectly competent for the defendant and Richard Deady to modify their original agreement and make any agreement satisfactory to both, and within the corporate powers of defendant (Durian v. The Central Verein, &c., 7 Daly, 168, ante).

   By the Court.—Sedgwick, Ch. J.

—The complaint set out the by-law under which the certificate in question was made, in the following words : “that any member might by written notice to the board of management designate to whom the sum due at the time of his death shall be paid.” So far as the meaning of these words must be considered in view of the general intent of the statutes, and the peculiarities of the case it was meant for, I am of opinion that the by-law means a designation from time to time, and the power of designation is not exhausted by one designation. To hold that it would, would be contrary to the exigencies of the most of the clerks. Say, for instance, as in this case, a young man becomes a member, shall he wait until he is about to die before he makes the only designation he is entitled to, or is he right in saying,- I may die soon, .and so I name the person that I think the right one now ; but I may marry and have children, and then it will be right to name them.

To me it is manifest that the certificate in question is not legally operative as a contract between the plaintiff and defendant. It has as one of its terms, implied if not expressed, the by-law that has been referred to. "The defendant had no power to make any other contract than such as would be justified by the charter and by-laws. Such a contract would express the obligation of the defendant to the member to pay to the appointee as appointee. The present certificate is no further valid, than it. embodies evidence that the plaintiff was the appointee. The rights of the plaintiff are not greater than they would be if she never had had the certificate, but depended solely upon the fact that she had been designated to the bond. It is not a negotiable instrument, or mercantile obligation. No consideration is implied. There is no estoppel. The plaintiff did not pay value for it. Granting that the member has the power to make an appointment that shall be irrevocable between him and the appointee, e. g., because of some consideration paid, there is no presumption that such an arrangement was made in this case. As against a subsequent appointee, the burden of proof would be on a prior appointee.

For these reasons, I am of opinion that on the case as made, the defendants were not bound to pay the amount of the certificate to the plaintiff, and that defendants’ exception should be sustained, the verdict set aside and a new trial ordered.

Truax, J., concurred.


text:
    HENRIETTA F. FLAGG, Respondent, v. THE MANHATTAN RAILWAY CO., Appellant.

      Negligence—unligtited stairway.

    In an action to recover damages for injuries caused by defendants’ negligence, it appeared that plaintiff, while descending a flight of steps leading from a station of defendants’ elevated railroad, which at the time was very •dark, felt carefully with her foot for every step, until within a few steps of the ground, when «thinking she was at the bottom she stepped out and was precipitated with great force. The negligence complained of was the failure of defendant to keep said stairway lighted.

      Held, that it was a question for the jury whether or hot plaintiff used ordinary prudence in believing, when she fell, that she was about to step from the last step, and that a verdict for plaintiff should be sustained.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided June 2, 1883.
    Appeal by defendant from judgment for plaintiff entered on verdict, and from order denying motion for new trial, made upon judge’s minutes.
    The action was for damages to plaintiff, from the alleged negligence of defendants.
    A motion was made to dismiss the complaint, which was denied, to which and various other rulings, exceptions were taken, the ground of which is stated in the opinion.

      R. E. Deyo, for appellant

      W. P. Prentice, for respondent.
   By the Court.—-Sedgwick, Ch. J.

—The most important question on the part of the appellant, relates to the obligation of the plaintiff to show that she was free from negligence that contributed to the injury. It is maintained that she did not give sufficient proof on this point to justify it being submitted to the jury.

The plaintiff’s injury was a consequence of falling to the ground as she was descending a flight of steps leading from the defendants’ elevated railroad. That part of the steps from which she fell was not lighted by the defendants. There had. been a light, but it was not burning at the time of the accident.

The argument is as follows : that the plaintiff knew, long before she fell, that the descent was very dark ; that she felt ahead very carefully with her foot for every step ; that thinking she was at the bottom, when in reality she was three or four steps up, she stepped out, as though the bottom had been reached, and was precipitated with great force; that if' she had continued to feel ahead with either foot she would have been safe ; that her a'ccident arose from her not feeling for the step; that the fact was that, thinking she was at the bottom, she took a longer reach with her foot than she would have done if she intended to' place it upon the step, and stepped beyond the edge of the next step and fell. She testified that she put her foot out, thinking she was surely at the bottom, and did not feel with her foot as she had before, when she was higher on the stairway.

As part of the argument, it is assumed that the evidence incontrovertibly shows that when she fell, she was three or four steps up, or thought she was. She said she was sure she was three or four steps up, but the general character of the testimony she gave as to the'facts, shows that this was not an observation made by her at the time, but a reflection after the fall and when she was suffering and excited. At least, the jury could have so found properly, for the actual incidents that she testified to would have been supported an inference, that she did not fall three or four steps. For instance, as she fell, her hand touched a railing that was at the bottom, some distance from the last step. The jury could have found that she could not have touched this railing if she had fallen from a third or fourth step up.

The argument that has been stated would have no force, if it were a question for the jury as to whether or not she used ordinary prudence in believing that she was about to step from the last step. I think it was. She felt for the next step as long as she thought she was not at the bottom. There is nothing to indicate that persons of ordinary pru•deuce would not under the circumstances, especially considering the number of steps she had already taken, believe that the last step had been reached. What ordinary prudence would have dictated was in my judgment a question for the jury.

The other exceptions have been examined, but do not call for a detailed statement. They are not sufficient to justify a reversal of the judgment.

Judgment affirmed with costs and order appealed from affirmed with $10 costs.

Ingraham, J., concurred.


text:
    DANIEL V. ARGUIMBO, et al., Respondents, v. GEORGE R. HILLIER, et al., Appellants.

      Partnership—evidence of—agreement to share profits of single partner.Oeneral Term—duty of on appeal.

      A. and W. entered into articles of copartnership, providing that the profits and loss should be divided forty-five per cent, to A. and fifteen per cent, to W., thirty per cent, to be left undivided, and if no other disposition thereof were made, to be divided as above; also providing that said thirty percent. “ will be credited to A., and it is understood that where both parties of this contract agree, they may annually divide part or the whole of the profits.” Some months thereafter, W. wrote to G. a letter which was signed by A. in his own name, offering G. of the said “mercantile contract . . . between W. and myself, thirty per cent, of the profits .'. . of which I represent seventy-five per cent., you to answer . . . for any loss,” etc. This proposal was accepted by G. in writing.

      Held, that the above facts show that by agreement between both of the original partners, G. became entitled to thirty per cent, of the profits of the partnership business, and also liable for the losses, and therefore, became a partner in the firm, and not merely a sharer of the profits of A.
    It is the duty of the General Term, on appeal, to find whether or not the case as it was, supported the holding of the judge below, e. g., that plaintiff was a partner—where the ground upon which the judge rested the holding as stated in the appeal book, is not sufficient to sustain it.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided June 2, 1883.

      Appeal from judgment entered on verdict of jury, and from order denying a motion for a new trial, made upon the judges’ minutes.
    ' A motion to dismiss the complaint was made and denied, and an exception taken. The facts appear in the opinion.

      Huntley & Rowan, for appellant.

      Scudder & Carter and George A. Black, for respondents.
   By the Court.—Sedgwick, Ch. J.

—One question only is presented upon this appeal. It is whether, on the trial, it was shown that the plaintiff.- Gomez was a copartner of the other plaintiff, doing business under the firm name of Arguimbau, Wallis & Co.

The following facts were proved: The plaintiffs, Arguimbau and Wallis, made in writing a copartnership agreement. In it, with the usual articles, was the provision that the profits and losses should be divided in the following manner, that is ; 45 per cent., to Arguimbau and 25 per cent, to Wallis ; that 30 per cent, should be left undivided; and if no other provisions as to them should be made, that they should be divided pro rata between Arguimbau and Wallis. This agreement was executed April 3, 1879. The business continued under it until the events next to be stated.

In November, 1879, the plaintiff Wallis wrote to Gomez a letter, which the plaintiff Arguimbau signed in his own name. It offered to Mr. Gomez, “of the mercantile contract effected for three years, from April 3, 1879, between Guillermo M. Wallis and myself, 30 per cent, of the profits that may result under the said contract, and of which I represent 75 per cent-., you to answer with the credit you may have with the firm of Gomez & Arguimbau and Arguimbau, Wallis & Co., and also in person for any loss that may occur. I further answer you, for your subsistance, for the amount of £400 per annum.” On the next day Mr. Gomez, answered in writing, to the letter, that the contents of the latter “being in perfect conformity with our arrangement, I have merely to repeat that same are accepted.”

These facts show that by agreement between both of the original partners, Mr. Gomez because entitled to 30 per cent, of the profits of the partnership business and also liable for the losses. He therefore, was a partner of the other two plaintiffs.

The argument to the contrary, proceeds upon the assertion that Mr. Gomez, under the letters that have been recited, became entitled, not to a share of the profits of the business, but a share of such profits as Mr. Arguimbau might be entitled to have out of the business. The only countenance for this, is the phrase “and of which I represent 75 per cent.” An additional clause of the copartnership agreement, not yet given, clears this. That clause was that the 30 per cent, of the profits left undivided and not provided for “ will be credited to Daniel V. Arguimbau and it is understood that, when both parties of this contract agree to, they may, annually divide part, or the whole, of the profits.” This shows that this 30 per cent, of the profits did not belong to Mr. Arguimbau, and 75 percent, were represented by him, inasmuch as he owned 45 per cent, and had credited to him 30 per cent., although in fact he did not own a right to the latter. The arrangement with M. Gomez was in reality a provision as to the disposition of the 30 per cent, which the copartnership agreement, expressed as a possibility in the future.

It was argued that the judge below erred in holding that the evidence proved Mr. Gomez to have been a partner, inasmuch as, by the case, he declared that he made such ruling upon the documents alone, apart from any extrinsic evidence, and without extrinsic evidence the papers did not show that Mr. Wallis had agreed to the arrangement with Mr. Gomez. It is not possible to believe that the judge meant to say that, in connection with the papers, he disregarded the significant fact that Mr. Wallis had written one of the letters: But if he had so meant, it would be the duty of the general term to find whether the «case as it was, did not support his conclusion.

Judgment affirmed with costs, and order appealed from affirmed with $10 costs.

Ingraham, J., concurred.