text:
    AUGUSTE DU FORT, Respondent, v. BRIDGET CONROY, Appellant.

      Seal estate— title to, acquired by possession.

    The referee having found as matter of fact in an ejectment suit, that, ibr more than forty years, the lots of the respective parties had been separated by a partition fence; that the lots had been used and cultivated by their respective owners, for more than thirty years, up to the fence, on each side ; that, in 1869 plaintiff’s agent moved the fence two feet on to the lot occupied by defendant; that in August, 1871, defendant removed the fence to where it stood before, and brought an action and recovered damages against plaintiff for removing the fence; held, that it was error to find as conclusion of law, that the plaintiff was owner of the strip of land between the fence, as it originally stood, and as it stood after its removal by plaintiff.
    Appeal from a judgment, entered upon the report of a referee in favor of the plaintiff.

      B. Bagley, for the appellant.

      D. O'Brien, for the respondent.
   Opinion by Smith, J.

Present — Smith and Gilbert, JJ.

Judgment reversed and a new trial granted before a new referee.


source: Caselaw Access Project

license: Public Domain

text:
    PHILENA B. FISHER, as Administratrix, etc., and others, Plaintiffs, v. GEORGE HUBBELL, as Executor, etc., and others, Respondents.

      Reference—m’der of— when unusual.

    A decree giving a construction, to a will and appointing a referee, and also making him a receiver, with power to carry his decision into effect without previously making his report to the court for confirmation, in an action brought for the construction of a will, for an accounting, sale of real property, and for other relief, goes further than is .usual, and should be modified by making the reference to the referee merely interlocutory, with direction to report to the court upon all the facts, matters, etc.

    Motion for a new trial under section 268 of the Code.

      Re L. Crittenden, for the plaintiff, Caroline C. Frary.

      W. W. Rowley, for the plaintiff, Philena B. Fisher.

      Morse & Wells, for the defendants.

       The construction given to the will by the decree, was that suggested in the opinion delivered in this case on a former hearing at General Term. (1 N. Y. Sup. Ct. Rep., 97.)

   Opinion by Smith, J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Decree modified.


text:
    JOHN W. COLLINS, Plaintiff in Error, v. THE PEOPLE, etc., Defendants in Error.

      Bigamy — Trial—place of— cannot be had in county wlme offense was not committed run' prisoner apprehended—3 Ren. Slat. [5 ecf\, 968, § 10.
    The plaintiff in error was indicted, tried and convicted of bigamy, in the Court of Sessions of Oswego county. The proof showed that the second marriage took place in Yates county, and that the prisoner was apprehended there; and the prisoner’s counsel moved that the prisoner be discharged, as the offense was not committed nor the prisoner apprehended in Oswego county. Held, that the court erred in refusing to discharge the prisoner; the statute providing that, for a second or other marriage, the person committing such offense may be tried in any county in which such person may be apprehended. (3 R. S. [5 ed.], 968, § 10.)
    Writ of error to the Court of General Sessions of the Peace, in and for the county of Oswego.

      William Tiffmvy am.d W. G. Robinson, for the plaintiff in error.

      J. J. Ramoree, District Attorney, for the defendants in error.
   Opinion by Smith, J.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Conviction reversed and prisoner discharged.


text:
    DAVID H. SCHOONMAKER and THOMAS REED, Respondents, v. SIMEON ROUSE, Appellant.

      Measure of damages.

    Plaintiff agreed in writing to purchase from defendant 300 tons of ice. He ordered and received and paid for two loads, and then gave defendant notice that the ice was not good and merchantable, and that he would not take the residue. Plaintiff kept the ice for defendant till it was worthless. The referee found that the ice was merchantable, and that plaintiff was entitled to recover for the ice not paid for, following, as to the measure of damages, DustanY. McAndrew etal. (44 3ST. Y., 73).
    Appeal from a judgment, entered on the report of a referee, in favor of the plaintiff.

      Sedgwicks, Kennedy & Tracy, for the appellants.

      Wood & Rathbwn, for the respondents.
   Opinion of Smith, J.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.


text:
    ROBERT E. HILL, Respondent, v. JOHN W. NORTHRUP, FLAVILLA NORTHRUP, Impleaded, etc., Appellants.

      Promissory note—given to compromise felony—Bona fide owner—Evidence—order of reception of.

    In an action upon a promissory note, the defense was set up, that it was given to compromise a felony. The court Refused to allow the defendant to show this fact, unless he first showed that the plaintiff was not a bona fide owner of the note. Meld, that this was not an error—that the court had a right to determine the order in which evidence should be introduced—and that, as the facts which the defendant offered to show would not constitute a defense unless the plaintiff was shown not to be a bona fide purchaser, it was proper that the latter fact should be first shown.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      H. O. Miner, for the appellants.

      Fuller, Vann do Brooks, for the respondent.
   Opinion by Smith, J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.


text:
    HENRY M. CLARK, Appellant, v. ISAAC HAMPTON, Respondent.

      Promissory note— Guaranty when void for want of consideration expressed in it— in action on, insolvency of maker of note may be shown.

      A guaranty, written upon a promissory note in the words, “ I hereby guarantee that the above note is not outlawed, according to the laws of the State. [Signed] Isaac Hampton,” is invalid, no consideration being expressed in it. In an action thereon, it is proper to show, on the question of damages, that the maker of the note is insolvent, and that a judgment against him cannot be collected.

      Bridge v. Mason (45 Barb., 88) followed.

      Appeal from a judgment of the Livingston County Court, reversing a judgment for the plaintiff in the justice’s court.

      I. B. Proctor, for the appellant.

      G. J. Bissell, for the respondent.
   Opinion by Smith, J.

Present—Mullin, P. J., Smith and Gtlbebt, JJ.

Judgment of the county court affirmed.


text:
    JOHN M. JONES, Respondent, v. THOMAS CHANTRY, Appellant.
    A party who directs an obstruction to be put in a highway, cannot shield himself from liability, by showing that it was put there by a contractor.
    Appeal from a judgment, entered on the verdict of a jury, in an action brought to recover for damages sustained by plaintiff, he being thrown from a wagon while driving on a public highway, by reason of obstructions placed there by defendant’s contractor, under defendant’s direction.

      J. Thomas Spriggs, for the appellant.

      W. Kernan, for the respondent.
   Opinion by Gilbert, J.

Judgment affirmed.


text:
    MARY A. KITTELL and others, Appellants, v. WILLIAM R. OSBORN and others, Respondents.

      Assignment for benefit of creditors — construction of—passive trust.

    An assignment of property in trust for its sale and the payment of the assign- or’s debts, and for the investment of the residue, if any, for the assignor’s use during his life, and, in case of his decease before the completion of said trust, and the payment of his debts, that the residue be passed over to his heirs-at-law, gives the assignor’s heirs no estate, unless he dies before his debts are paid. No trust is thereby created in the surplus after payment of debts, as a mere passive trust to hold property for another’s use cannot exist under the laws of this State.
    Appeal from a judgment, entered on the report of a referee, in favor of the defendant.

      John B. Murray, for the appeEants.

      E. H. Lamb, for the respondents.
   Opinion by Gilbert, J.

Judgment affirmed.


text:
    JOSEPH M. RAY, Appellant, v. SALMON B. ROWLEY and others, Respondents.

      Jurisdiction—of parties — when presumed from recovery of judgment—Judgment— when cannot he attacked collaterally.

    In an action to set aside a conveyance, as iraudulent as agamst defendants’ creditors, the plaintiff offered in evidence, a judgment roll in an action in which he had recovered a money judgment against the defendant. This was objected to and excluded, on the ground that the papers did not show that the summons was served on the defendant in such action. Retd, that this was error ; that where a judgment is recovered in the Supreme Court, jurisdiction is presumed, and no proof of it is necessary. If irregular, the judgment cannot be attacked collaterally when offered in evidence in another suit.
    Appeal from a judgment dismissing plaintiff’s complaint.

      D. Millar, for the appellant.

      George O. Greene, for the respondents.
   Opinion by Gilbert, J.

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


text:
    HIRAM BOYER, Appellant, v. BOSWELL D. BROWN, Respondent.

      New trial—ease on a/ppeal from order granting — what should contain.

    When a new trial is granted upon the judge’s minutes, it must be considered as granted upon all the proceedings of the trial, including all the testimony and the charge of the judge ; and when the case on appeal does not profess to contain the whole evidence, and gives only a portion of the judge’s charge, the appellate court cannot say that the granting of a new trial was error.
    Appeal from an order of the County Court of Herkimer county, granting new trial.

      Link d> Dennison, for the appellant.

      Burrows dh Palmer, for the respondent.
   Opinion by Smith, J.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.


text:
    WILLIAM B. NICKELSON, Appellant, v. GEORGE A. WILSON, and JOHN L. BAKER, as Assignee in Bankruptcy of said Wilson, Respondents.

      Contract—when mid as against public policy.

    Appeal from a judgment dismissing plaintiff’s complaint, in an action brought for the specific performance of a contract, claimed by defendant to be void, as being against public policy. In 1868, the plaintiff owned a patent for a cheese box, which he sold to the defendant Wilson and one Scott, for $12,000, each agreeing to pay one-half of said price. Wilson claiming that plaintiff and Scott conspired together to cheat and defraud him, by representing that the price of said patent was $12,000, when in truth and fact it was worth but $6,000, procured them to be indicted for the fraud, and brought an action against said plaintiff and Scott, to recover the amount of said notes, upon the ground, as it was claimed, that said notes had been transferred to bona fide holders.
    Scott filed a petition in bankruptcy against said Wilson, to have him declared a bankrupt, and his property transferred to an assignee.
    The counsel for said Wilson doubting whether Scott could be convicted, or the civil action maintained, without the testimony of the plaintiff, a negotiation was entered into between the counsel for said plaintiff in these actions, and the counsel for said Wilson, which resulted in an agreement, of which the following is the abstract or outline, viz.:
    1. Nickelson will testify to all he knows in bankrupt case, in civil case, and in the criminal ease.
    2. If there be no recovery against Scott in the civil action, there shall be none against N".
    3. The civil case going to judgment shall not be enforced against IST. for more than $1,000,"and this sum may be paid in one of Wilson’s notes for that sum.'

      é. Nickelson shall be given the control for his benefit, of judgment against Scott, for whatever sum he has to account for to Wilson.
    N. testifying fully as above, the counsel will recommend a nol. pros, against N.
    The court found, as matter of law, that the agreement made between the attorney of the plaintiff and of the defendant Wilson, was against public policy and void, and ordered judgment dismissing plaintiff’s complaint, with costs, and from that judgment the plaintiff appealed to the G-eneral Term, where the court held, that “there was a very powerful inducement presented to Wilson to soften down his evidence against plaintiff, if not to altogether suppress it, and a contract which induces such conduct on the part of a prosecutor in a criminal proceeding, is unlawful and void.”

      G. D. Ada/ms, for the appellant.

      Watson M. Rogers, for the respondents.
   Opinion by Mullin', P. J.

Judgment affirmed, with costs.


text:
    WILLIAM D. PETRIE, Respondent, v. FREDERICK H. DORWIN, Appellant.

      Sale—Statute of frauds—Delivery.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was for the conversion of a horse, double harness and a plow, sold by the defendant to the plaintiff. The sale was denied by the defendant. The referee found in favor of the plaintiff, and the General Term refused to disturb his findings. The defendant insisted that the sale was void within the statute of frauds; but the court held that although the agreement was not in writing, and nothing was paid, yet, as the referee found that the property had been delivered to the defendant, and as he had used it for some two years, the sale was perfected by such delivery, though not made until after the time of entering into the verbal agreement.

      L. J. Dorwvn, for the appellant.

      Wynn cfe Porter, for the respondent.

       Sprague v. Blake, 20 Wend., 61; McKnight v. Dunlop, 1 Seld., 537.

   Opinion by Mullin, P. J.

Judgment affirmed.


text:
    NORMAN MALCOLM, Respondent, v. WILLIAM T. FAGAN, Impleaded, etc., Appellant.

      Answer—Evidence of matter not set up in, rejected.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought upon a promissory note, indorsed by the defendant. At the trial, the defendant offered to prove that the note was made for the accommodation of one Phelps, and that it was delivered to the plaintiff, not to be used, but to be held by him as security for advances made in buying in the property of Phelps at a sheriff’s sale, and that it was diverted from the purpose for which it was made. The court held that the evidence was properly rejected, as no such defense was set up in the answer.

      Francis Fernán, for the appellant.

      W. Ballou, for the respondent.
   Opinion by Mullin, P. J.

Judgment affirmed.


text:
    WILLIAM H. WATSON, Appellant, v. ERASTUS W. PARKER, Respondent.

      Statute of frauds—Agreement to answer for the debt of another.

    Appeal from a judgment, entered on the report of a referee, in favor of defendant. The referee found that it was “ agreed between plaintiff and defendant, that whatever grapes the defendant should sell and deliver to said Hood, in pursuance of any agreement between them, should apply on the plaintiff’s then account against the defendant, and also upon what he, the defendant, and his men should thereafter trade with the plaintiff on defendant’s account, to the extent of the account.” The court was of opinion that the evidence did not sustain this finding, and that if so, it was within the statute of frauds, within the principle laid down in Mullory v. Qillett (21 N. Y., 415).

      D. B. Prosser, for the appellant.

      Brown da Wood, for the respondent.
   Opinion by Gilbebt, J.

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


text:
    STEPHEN REMINGTON and JACOB GERLING, Plaintiffs, v. OLIVER H. PALMER, Defendant.

      Agent—a/wthority of.

    Exceptions ordered to be heard, in first instance, at General Term.
    Defendant conveyed to plaintiff’s son, real estate by deed, without personal covenants on his part. Plaintiffs complained to defendant’s agent that there was an unpaid assessment charged on the lot. Defendant being informed of it, wrote to his agent to pay it in his discretion. The agent declined to pay it, saying it was not due; that the defendant would pay it when due. In this action, brought by the purchasers against the vendor, the court were of the opinion that the authority given the agent to pay the assessment, did not authorize him to bind the defendant by a promise of future payment.

      J. 0. Cochrane, for the plaintiffs.

      W. F. Cogswell, for the defendant.
   Opinion by Gilbert, J.

Judgment ordered for defendant on the verdict.


text:
    BETSEY A. FERGUSON and HELENA H. BORDEN, Administratrixes, etc., Respondents, v. MARY MORRIS and JOHN MORRIS, Appellants.
    Appeal from a judgment entered on the report of a referee in favor of the plaintiff. The action was brought for the foreclosure of a mortgage. The court, after • an examination of the evidence, was of opinion that there was no consideration for the mortgage, and that the judgment was erroneous.

      Sisley db Stoddard, for the appellants.

      Biehardsm db Adams, for the respondents.
   Opinion by Mullet, P. J.

Judgment reversed, and new trial granted before another referee, costs to abide event.


text:
    LEVI B. MILLER, Appellant, v. PETER PERRINE and ADOLPHUS PERRINE, Respondents.

      Notice of appeal—service of, on onepa/riner sufficient.

    Appeal from an order of the Herkimer County Court, dismissing the appeal.
    A motion was made in the County Court of Herkimer county, to dismiss the appeal from the justice’s court in this case, on the ground that notice of appeal had been served on Peter Perrine only, and not on Adolphus Perrine. The respondents were partners. The court were of opinion that notice to one partner was notice to both.

      Xinh ch Dewmson, for the appellant.

      Bwrrows & Palmer, for the respondents.
   Opinion by Gilbert, J.

Order reversed, with costs.


text:
    SANFORD M. HUNT, Respondent, v. JEREMIAH MITCHELL and CHARLES BAILEY, Appellants.

      Promissory note—alteration of—when immaterial.

    Appeal from a judgment entered on the verdict of a jury, and from an order denying motion for a new trial.
    In this case the court were of opinion that an alteration in a promissory note, which it was claimed invalidated it, was not a material one, but, that if it were, an admission in the answer that the defendants accepted the altered note, put the fact of the alteration out of the issue. That upon the merits there was a conflict of evidence and no sufficient reason to set aside the verdict.

      Durrows dé Palmer, for the appellants.

      Link dé Dennison, for the respondent.
   Opinion by Gilbert, J.

Judgment and order denying new trial affirmed.


text:
    WILLIAM A. YORKS, Respondent, v. HOWELL MOSHER, Appellant.
    “ This case presents and depends upon a single question of fact.” “ The question was for the referee on the facts, and his finding cannot, I think, be disturbed.”

      H. L. Comstock, for the appellant.

      E. A. Wash, for the respondent.
   Opinion by Smith, J.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.


text:
    JAMES WARD, Respondent, v. PHILANDER A. SPENCER and another, Impleaded, etc., Appellants.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The General Term held that the case had been properly submitted to the jury, and that, as there was sufficient evidence in the case to support their verdict, the judgment should be affirmed.

      A. E. Kilby, for the appellants.

      F. W. Hubba/rd, for the respondent.
   Opinion by Mullin, P. J.

Judgment affirmed.


text:
    WILLIAM H. PETTIS, Appellant, v. DELOS D. PIER and another, Respondents.
    Appeal from a judgment in favor of the defendants, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the judge’s minutes.
    The opinion delivered at the General Term was entirely devoted to an examination of the facts of the case, and the judgment was reversed, for the reason that the judge at the circuit had submitted to the jury certain'questions of fact; such submission being unauthorized by the evidence given at the trial.

      Ball & Bearle, for the appellant.

      Bagg <& Oollins, for the respondents.
   Opinion by Mullin, P. J.

Judgment reversed and new trial ordered, costs to abide the event.


text:
    ALLEN WHITE, Respondent, v. CHARLES S. TURNER, Administrator, etc., and others, Appellants.
    Appeal from a judgment entered on the report of a referee in favor of the plaintiff.
    In this action, brought to foreclose a mortgage, the defense of usury was set up in the answer. The referee found that the mortgage was a valid instrument, and was given to secure a portion of the purchase-price of land sold to the mortgagor. The court held that this finding was conclusive, and affirmed the judgment.

      Julius A. Parsons, for the appellants.

      D. Sherman, for the respondent.
   Opinion by Smith, J.

Present— Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.


text:
    In the Matter of the Application against JOHN J. LAMOREE.
    The consideration of this case related entirely to a question of fact, and the court was of opinion that the allegations in the moving papers, rested more upon the'suspicions of the parties making them, than upon satisfactory evidence, and were completely refuted by the evidence submitted by Mr. Lamoree.
   Opinion by Gilbert, J.

Motion denied.


author: Davis, P. J.:

text:
    CHARLES E. BERRIAN, Respondent, v. JOSEPHINE E. SANFORD, Appellant.

      Pa/rdl evidence of contents of memorandum — Referee—right to reserve decision, as to admission or rejection of evidence.

    The plaintiff and defendant entered into an agreement for the exchange of certain property, whereby the defendant was, among other things, to deliver seven horses to the plaintiff. One of the horses having died, before its delivery, it was agreed that the defendant should deliver another horse; or, in case of her failure so to do, that she should pay the plaintiff $300, though the latter alternative was denied by the defendant. This action was brought upon the second agreement.
    Upon the trial, the plaintiff testified, that, before entering into the contract of exchange, a memorandum was made of the defendant’s property, each item thereof being valued, which memorandum was the basis of the exchange. He then testified, against the defendant’s objection and exception, that the horse which died, was set down therein at $300. Held, that this was error; that the memorandum was the best evidence of its own contents, and that it should have been produced or accounted for.
    Where a referee receives evidence objected to, reserving the question of its admissibility, he ought, before closing the case, to make his final ruling, receiving or rejecting the evidence, and advise the parties, so that proper exception may be taken. Failing to do this, the court, on motion, might open the case and send back the report, or, on appeal, treat the action of the referee as error, when the evidence was so far material that it may have had some influence on his findings.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The referee found that the parties to this action, entered into a written agreement for the exchange of certain property, whereby the defendant agreed, among other things, to deliver to the plaintiff seven horses. Prior to'their delivery, one of them died. The defendant thereupon entered into another agreement with the plaintiff, to deliver to him another horse, of equal value, in place of the one that died, or to pay him $300. The defendant denied that any sum had ever been agreed upon to be paid in case the horse was not delivered, and alleged that another horse had been delivered to, and accepted by the plaintiff in lieu of the one that died. Other facts appear in the opinion.

      Whitehead JEL. Van Wych, for the appellant.

      Hatch c& Ben&oille, for the respondent.
   Davis, P. J.:

There were several errors committed by the referee upon the trial, some of which are fatal to the recovery.

The plaintiff testified that the parties, before making the contract of exchange which was put in evidence, made a memorandum of the defendant’s property, and a valuation of the several items, which was the basis of the subsequent trade. He was allowed, against defendant’s objection and exception, to testify that in this memorandum, the horse which subsequently died, was set down at $300. This evidence, although collateral, was material. The action was , upon an alleged agreement to deliver any equally valuable horse or ■ pay $300, and, of course, the fact that the parties had, before the trade, mutually appraised the horse at that sum, as a basis of the contract, was material upon the disputed question whether defendant, after the death of the horse, had agreed to deliver another or pay $300. The memorandum of the parties was the best evidence of its own contents. The defendant testified that no such memorandum was made. It should have been produced or accounted for. The objection to oral evidence of its contents was well taken, and should have been sustained.

The practice of referees in receiving testimony objected to, and reserving the question of its admissibility, without passing upon the objection, was commented upon and disapproved in Sharpe v. Freeman, and condemned in Clussman v. Merkel. The reservation itself is probably not error, but the referee ought, before closing the case, to make his final ruling, receiving or rejecting the evidence and advise the ..parties, so that proper exception may be taken. Failing to do this, the court, on motion, might with propriety open the case and send back the report, so that the ruling may be made and due exception taken; or, on appeal, treat the action of the referee as error, where the evidence given is so far material that it may have had some influence on the findings and conclusion of the referee.

In this case, however, the evidence taken under the reserved decision, was not so material to any disputed question, that this court would reverse the judgment on that ground.

It was error to exclude the questions put to Sanford. The plaintiff had testified that Sanford had said to him that the horse had died, and that they would give him another ’horse worth $300, or $300 in money. On redirect examination, Sanford was asked whether anything was said to plaintiff about paying any money for the horse that died, and whether plaintiff said anything to him about receiving $300 for the dead horse. These questions were ruled out, and defendant excepted. There was no ground for their exclusion.

It was error, also, to exclude. the question to the witness Skid-more. This witness was recalled, and stated that he recollected more vividly,” matters as to which he had given testimony. He was asked, “ From what facts you now remember, can you state positively whether Berrian accepted that horse or not?” This question was objected to and excluded, and defendant excepted. No special ground of objection was assigned, and it appears to have been ruled out for general incompetency. We think the ruling was not correct.

We are not disposed to pass upon the question-whether the findings of the referee were not against evidence. The witnesses were before him, and his opportunities to judge of their credibility were such as the printed papers do not afford to us. There must be a new trial, with costs to abide event.

Daniels and Beady, JJ., concurred.

Yew trial ordered, with costs to abide the event.

       45 N. Y., 802.

       3 Bos., 402.


text:
    JAMES L. HARWAY, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellants.

      Set-off—of came of action arising from tort—how may Toe pleaded—Assignee of came of action.

    An action of assumpsit lies for money obtained by oppression, imposition, extortion or deceit; and the demand for the money so obtained, may be set up as a set-off in an action brought by the party against whom it exists. The assignee of such party takes a cause of action subject to such defense of set-off. In setting off a cause of action, in form, in assumpsit, but arising from tort, it is proper to set forth the fraud and collusion upon which the cause of action depends. •
    Appeal from an order of the Special Term, striking out portions of the answer alleging fraud and collusion, as irrelevant and redundant.

      E. Delafield ¡Smith, Corporation Counsel, and James G. Garter, for the appellants.

      J. S. Lawrence, for the respondent.
   Davis, P. J.:

The plaintiff in this action sues as assignee of one Berrian, to recover divers large accounts against the city, for goods, wares and merchandise, sold and delivered to the defendant by said Berrian. The accounts, and the indebtedness thereon, are not denied. The sole defense set up by the answer, is a set-off of an alleged indebtedness of Berrian to the defendant, for a larger amount than plaintiff claims. The indebtedness is alleged to be for large sums of money, paid by the defendant to Berrian, in amounts and at times specified, and obtained by means of fraudulent practices, pretenses and representations, by said Berrian, in collusion with, or by deception of, the officers of defendant. The answer avers and sets out, concisely and without redundancy, the fraudulent means by which the money is alleged to have been obtained, and alleges that the same was received by Berrian, to and for the use of defendant. It is well-settled law, that “if one man has obtained money from another, through the medium of oppression, imposition, extortion or deceit, such money is, in contemplation of law, money received for the use of the injured party; it is not the money of the wrong-doer, and he has no right to retain it, and the law therefore implies a promise from him, to return it to the rightful owner, whose title to it cannot be destroyed and annulled by the fraudulent and unjust dispossession. The tort may be waived, and an action brought for the recovery of the money, upon the implied contract.”

The cases are very numerous which establish that an action of assumpsit, at common law, for moneys thus obtained, could have been brought upon the implied promise. The statute declares what demands may be the subject of set-off,, and specially names causes of action arising upon contract, express or implied; and wherever assumpsit will lie for money had and received, the demand therefor maybe set off in an action of assumpsit, brought by the party against whom it exists; and the assignee of such party takes the cause of action, subject to the defense of set-off, to the same extent as it existed against the assignor.

It is true, the defrauded party in such case has a choice of remedies. He may pursue the person, guilty of the fraud in an action of tort for damages sustained by the injury, or waiving that remedy, he may treat the matter as simple debt, and proceed upon the implied contract to repay the money. There is no doubt, therefore, that upon proofs of the facts alleged in the answer the defendant will be entitled to enforce his defense of set-off in this action to the extent necessary to extinguish the demands held by the plaintiff as assignee of Berrian. The answer of defendant, it will be observed, proceeds altogether upon the right springing out of the alleged fraud. It claims, nothing, except upon the ground that Berrian obtained the excessive payments, by fraudulent pretenses and practices. The allusion to the city officers who passed upon and paid the accounts, is not made for the purpose of averring mistake as a distinctive ground of claim, but to aver that those officers were deceived by, or in collusion with, Berrian’s alleged frauds. It will be necessary therefore, on the trial of the action, to give evidence of and satisfactorily show the alleged frauds, in order to establish the basis of the implied promise to pay back the money had and received; and a jury must pass upon those questions. This fact does not, however, change the nature of the alleged defense, which is all the while a mere set-off of indebtedness, arising upon an implied contract. In all cases of implied contracts, the facts upon which the law implies the contract must be made to appear by proof or admission; and so, in this case, unless the plaintiff admits the alleged indebtedness, the defendant must proceed to prove it, which can only be done by proving the facts out of which the law implies it. Hence, it is no ground to exclude a set-off upon an implied contract, that, to maintain the implication requires evidence satisfactorily establishing a tortious or fraudulent transaction. In speaking of a party’s right to assert his claim in such cases as a contract for the payment of money, the books speak of him as “ waiving the tort.” This phrase means no more than that by treating the matter as a contract, he waives his right to pursue it as a tort with the peculiar remedies, penalties, and consequences belonging to it in that character.

He by no means waives the right to give evidence of the transaction, and of its true character, in order to raise the implication upon which his demand in contract must rest, for that would be to waive all remedy. The waiver of the tort, therefore, is simply a declaration that, for the purposes of redress, the party elects to treat the facts as establishing an implied contract which he may enforce, instead of an injury by fraud or wrong, for the committing of which he may demand damages, compensatory or exemplary. In either case, the facts remain the same, and are alike the subject of proof, and the basis of the remedy, except as to such incidents as, in the action for tort, may bring in the elements of willful or malicious injury, to give scope for larger damages. Under the common law rules, it was sufficient to aver the indebtedness in the form of the well-known counts of i/ndebitatus assumpsit; but it would also have been proper to plead by special declaration in assumpsit, alleging the fraudulent acts, and averring the indebtedness arising therefrom, and a promise to pay.

It is doubtful whether, under the Code, the former of these modes should be allowed, but it is not necessary to pass upon that question. The real question on this motion is, whether, where facts exist upon which the law implies a promise (in the absence of an express one), to repay money fraudulently obtained, it is irrelevant, in a pleading under the Code, to set up the facts which must be proved, and aver as the gravamen of action the liability and promise which the law implies from them. We are of opinion that it is not irrelevant, but more nearly conforms to the spirit and requirement of the Code, and is the wiser and safer course of pleading. It certainly is no detriment to the plaintiff, but rather to his advantage to have notice in advance of the precise facts he will be called upon to meet; and where the statement is made by complaint or answer in a concise form, without redundancy (which means vain repetition), and the facts stated are such as are essential to be proved on the trial, to constitute a defense or action, the opposite party cannot be said to be aggrieved thereby.

W e are of opinion that the order, striking out portions of the answer as irrelevant and redundant, is erroneous, and should be reversed, with costs of this anpeal, and the motion denied, with costs.

Daniels and Beady, JJ., concurred.

Order reversed, with costs.

Note.—The case of James W. Mills, an assignee of Daniel Berrian of a similar claim, was argued with the above cause. Bep.

       Chambers v. Lewis, 2 Hilt., 591; Putnam v. Wise, 1 Hill, 235, 240, note; Neate v. Harding, 6 Exch., 349.

       2 R. S., Edmonds’ ed., p. 365, § 18.

         See statute above cited ; Whitcomb v. Williams, 4 Pickering, 228 ; The Duke de Cadaval v. Collins, 4 A. & E., 858 ; Byxbie v. Wood, 24 N. Y., 607 ; Selwyn’s N. P., 7 Amer. ed., 82, and notes ; Chitty on Contracts, 10 Amer. ed., 704, et seq.; Waite v. Leggett, 8 Cow., 195 ; Clark v. Dutcher, 9 id., 674; Coit v. Stewart, 50 N. Y., 17; Andrews v. Artisans’ Bank, 26 id., 298; Myers v. Davis, 22 id., 489; Martin v. Kunzmuller, 37 id., 396.

       Code, sec. 160, and see Wait’s annotated Code, page 293, and the cases cited in notes.


text:
    JOSEPH C. WOODRUFF and another, Respondents, v. JOHN LEONARD, Appellant.

      Promissory note—complaint in, action against indorser—what mustie alleged, in— Oode, § 162 — Demurrer—when not frivolous.

    This action was upon a promissory note made by S. & M., payable to the order of the plaintiffs, and indorsed by the defendant. The complaint alleged that the plaintiffs were the owners of the note, and “ that the defendant indorsed said note at the time of the making thereof.” The note was set out in full, but a copy of the indorsement was not given. The defendant demurred. The plaintiffs moved for an order directing judgment for them, on the ground that the demurrer was frivolous, which was granted. Held, that this was error; that in order to entitle the plaintiffs to recover, it was necessary for them to allege the special circumstances charging the defendant as first indorser, to rebut the presumption that he was second indorser.
    Appeal from a judgment entered on an order made at Special Term, directing judgment for the plaintiffs on the ground that the demurrer interposed by the defendant, was frivolous.
    The facts are stated in the opinion.

      Geo. W. MoAdam, for the appellant.

      M. P. Stafford, for the respondents.
   Davis, P. J.:

This action is brought against defendant, as indorser of a promissory note. The plaintiffs allege, “that on or about the 20th day of February, 1873, the plaintiffs, for a good and valuable consideration, became the owners of a certain negotiable promissory note, of the terms and tenor following, to wit:

“ $500. “ New York, February 20th, 1873.
“ Six months after date, we promise to pay to the order of Woodruff & Houston, five hundred dollars, at Martin & Runyan’s, 40 Wall street, with seven (7) per cent interest from date. Yalue received.
“SIMMONS & MoPARTLIN.”

That the defendant indorsed said note, at the time of the making thereof.

The complaint then avers presentation, protest and notice, and non-payment, and demands judgment for the amount of the note, with interest and costs. The defendant demurred, on the ground that the complaint did not state facts sufficient to constitute a cause •of action against him. The court, on proper application at Chambers, ordered judgment for plaintiff, on the ground that the demurrer was frivolous, and judgment- was thereupon entered, from which the defendant appeals. It seems to have been supposed that the complaint was good, under section 162 of the Code. That section provides, that in an action “ founded upon an instrument for the payment of money only, it shall be sufficient for the party to give a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum which he claims.” But the complaint is not framed under this section. The action is against the indorser only, and the instrument on which it is founded, is the contract of indorsement upon the note. The note is set forth, but no copy of the indorsement is given. In tuat respect, the complaint contains only the averment that the defendant indorsed the note, without setting out a copy of the indorsement, and therefore it fails to comply with section 162. But if it had set out a copy of the indorsement, in Time verba, it would probably have been essential, since the plaintiffs are payees of the note, to allege the special circumstances charging the defendant as first indorser, to rebut the presumption that his relation to the paper, was that of second indorser.

The case, therefore, presents the simple question, whether, upon the facts averred, the plaintiffs are not presumptively the first indorsers, and the defendant the second indorser, so that it is incumbent on the plaintiffs to aver the facts and circumstances, to ■overcome the legal presumption, and entitle them to sue the defendant as indorser.

In Moore v. Cross, that was done, and, "upon the facts averred and proved, the recovery was sustained. In Bacon v. Burnham, it was not done either by averment or proof, and the recovery was reversed.

In the last named case, Bacon, J., said: “The note is made payable to Sweezy, or his order; and being indorsed by the defendant, the legal presumption from this simple fact (nothing appearing to show that he intended to assume any other character), is, that his responsibility was that of second indorser, with all the rights, and subject only to the liabilities of that position. ■ It must be supposed, in the absence of any proof to the contrary, that, perceiving the name of the payee in the note, he indorsed it on the presumption that the name of such payee, to whose order it was made payable, would also, at some time, appear on the note; for only thus would it become negotiable.” The authorities, cited by him, are Herrick v. Carman, Seabury v. Hungerford, Ellis v. Brown, Moore v. Cross; and, in the face of so many authorities, it is not easy to say that the demurrer is frivolous. We think the order, holding the demurrer to be frivolous, was erroneous, and that the judgment based thereon must be reversed, and the motion for judgment on the demurrer denied.

Daniels and Beady, JJ., concurred.

Judgment reversed, and motion denied.

       See Conkling v. Gandall, 1 Keyes, 228.

       19 N. Y., 227.

       37 N. Y., 614.

       12 Johnson, 159.

       2 Hill, 80.

         6 Barb., 282.

       19 N. Y., 227


text:
    LOUISA DOUAI WEHLE, Respondent, v. JESSE B. SPELMAN and others, Appellants.

      Evidence—Statement of person to whom witness has been referred by plaintiff ferr information — when admissible.

    Action to recover the damages sustained by the plaintiff in consequence of the unlawful taking of her property by the defendants. The principal dispute was as to the value of the goods. A witness, called by the defendants, was asked as to a conversation had by him with Charles Wehle, the brother and attorney of the plaintiff, soon after the taking of the goods, in relation to the amount of stock. The conversation was objected to by the plaintiff and excluded." The defendants then offered to prove that the witness was referred by Mrs. Wehle to her brother, as to the fact of how many goods were in the store, which evidence was objected to by the plaintiff and excluded. Reid, that the rejection of the evidence was error.

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the judge’s minutes.
    The action was brought '.to recover for the seizure of the property of the plaintiff, by virtue of certain attachments which were subsequently vacated and set aside.
    Other facts appear in the .opinion.

      ..KulleHon, Knox <& Crosby, for the'appellants.

      Charles Wehle and Z. H: Bowan, for the respondents.
   Davis, P. J.:

. There is little or no difficulty in disposing of the great mass of' the exceptions taken on the trial of this case. They were not well taken. But as to one of them, this cannot be said.

The principal question litigated on the trial, was the actual value • of the goods taken from plaintiff’s store. On the part of the' plaintiff, the value was claimed to have been $10,000 or $12,000, - while the defendants insisted that the value was below $3,000. In '■ the course of the trial, one Orville H. Clapp, who was a member of the firm of Butler, Broom & Clapp (which firm were a part of the attaching-creditors, though not parties to this suit), was called and examined as a witness on behalf of defendants. His testimony chiefly related to the quantity of goods the plaintiff had in her store, and their value; and after giving his opinion, founded on his examination, and stating a conversation with plaintiff on that subject, he testified that about a week afterward, he had a conversation with Charles Wehle, in relation to the amount of stock the plaintiff had on hand. Charles Wehle, it already appeared, was the brother of plaintiff, and her lawyer. The conversation was objected to by plaintiff, and excluded by the court. The defendants’ counsel then offered to show that the witness was referred, by Mrs. Wehle (the plaintiff), “ to her brother, as to the fact of how many goods were in the store.” This was objected to by plaintiff’s counsel, and the objection was sustained by the court, and defendants excepted. The evidence offered was competent. If it had appeared that the plaintiff referred the witness to Charles Wehle, for the purpose of getting from him, information on the subject of the amount of goods in the store, that act would make him her agent for the purpose of giving such information, and his statements made when applied to under such reference would be competent evidence against the plaintiff, so far as they related to that subject.

It was therefore error to exclude the offer, inasmuch as it already appeared by the preceding question, that the object was to get the statements on that subject, of Charles Wehle, before the jury.

What would have been their effect or purport, we are not able to see. It may easily be conjectured that the evidence, if given, would have been of little or no importance, but that it would have been of none cannot be legally seen. The defendants had the right to such declarations (if they first proved the offer), and to have the jury pass upon their weight, in connection with the other testimony. They related to the principal subject of controversy. And we cannot see that, if permitted to lay the proper foundation, the defendants would not have called out important declarations touching the quantity of the goods, and affecting materially the question of value. For this error, the judgment must be reversed, and a new trial ordered, with costs to abide the event.

Daniels and Brady, JJ., concurred.

Judgment reversed and new trial ordered, costs to abide ■ the event.


text:
    EDWARD S. CLINCH, Respondent, v. THE SOUTH SIDE RAILROAD COMPANY OF LONG ISLAND, Appellant.

      Corporation—Receiver of—how appointed— Chapter 151, Laws 1870.
    The provisions of chapter 151, of the Laws of 1870, cover all the cases mentioned in title 4, chapter 8, part 8, of the Revised Statutes, providing for the appointment' of a receiver of a corporation upon the petition of a judgment creditor, after execution returned unsatisfied; and, since the passage of said act, the remedies therein provided must be pursued.
    The plaintiff recovered a judgment against the defendant, upon which execution was issued and returned wholly unsatisfied. Upon an affidavit showing these facts, and that the defendant was insolvent, he then applied, upon motion, eight days’ notice of which had been given, for an order appointing a receiver. The motion, was granted, and a receiver appointed. Held, that the proceedings were irregular, as not being authorized by section 3, of chapter lol, Laws 1870, and that the order appointing the receiver should be reversed.
    Appeal from an order made at Special Term, appointing a receiver of the defendant corporation.
    The facts are stated in the opinion.

      Tracy, Catlin <& Brodhead, for the appellant.

      John H. Bergen, for the respondent.
   Davis, P. J.:

The plaintiff in this action brought suit against the defendant in Kings, and recovered judgment, the roll whereof was filed in Kings, and transcript filed, and judgment docketed, in Queens and Suffolk counties. An execution in due form was issued to the sheriff of Suffolk county, and by him duly returned wholly unsatisfied. The defendant’s railroad runs through the counties of Kings, Queens and Suffolk, and it has offices and stations in each of those counties. Upon an affidavit, showing these facts, and also that the railroad company is insolvent, the plaintiff applied, upon motion and eight days’ notice, at the Special Term of the district, at chambers, for an order appointing a receiver. The defendant appeared and opposed such motion, and read on the hearing an affidavit, showing that on or about October 1st, 1872, the railroad company was mortgaged, to secure a million dollars of its bonds, to trustees, and that default having been made on such mortgage, the trustees have taken and are now in possession of, and operating, said railroad, and that the trustees have brought an action to foreclose the mortgage, which action was commenced before notice of this motion was given, and is still pending.

The motion of the plaintiff was granted, and Edward D. Gale was appointed receiver, and from the order appointing such receiver, this appeal is taken.

Prior to the act of 1870, the provisions of chapter 8, part 3, title 4, of the Revised Statutes, remained in, full force, unaffected by the Code. They were expressly excepted from the operation of the Code, by section 471. The thirty-sixth and thirty-seventh sections of the statute, provided that whenever a judgment at law, or decree in equity, shall be obtained against a corporation, and an execution issued thereon, shall have been returned unsatisfied, upon the petition of. the person obtaining such judgment or decree, or his representatives, the Court of Chancery may sequestrate the .property of such corporation, and may appoint a receiver of the same, and that upon a final decree, on any such petition, the court shall cause a just and fair distribution of the property of such corporation, and of the proceeds thereof, to be made among the fair and honest creditors of such corporation, in,-proportion to their debts, etc.

■ These sections also point out the mode of instituting the proceedings, to wit: by petition of the judgment creditor; and they provide substantially .fo.r .a formal suit, in equity, to be commenced by petition,-and-terminated by a final decree upon hearing and adjudication.

Whether an affidavit and notice of .motion, such as were presented in this case, would have been deemed a sufficient conformity to the statute, need- not be determined, because it seems clear that the mode of proceeding pointed out by the statute, has been superseded by the new mode indicated by the act of 1870.

Section 3 of that act, declares that the receiver of the property of a corporation, can be appointed only by the Supreme Court, in a -civil action, and in one of the following cases, upon at least eight days’ notice of the application therefor, to the proper officers of such corporation: “ 1. In a civil action brought by a judgment creditor of the corporation, or his representatives, after execution has been issued upon such judgment, and returned unsatisfied, in whole or in part.”

# # ■if * if if if . if ^ if if

“ 5th. In the cases specifically mentioned in title 4, chapter 8, part 3 of the Revised Statutes.”

The provisions of the act of 1870, clearly cover all the cases mentioned in the statute above referred to ; and there seems to be no reason to doubt that the remedies given by the statute, and especially those named in the thirty-sixth and thirty-seventh sections, must now be pursued by a civil action, instead of by petition, as provided for in the former statute. This change is substantial and important. It substitutes a new form of procedure, which is exclusive of all pre-existing modes.

We are not’ at a loss to ascertain what a civil action is, for that is something distinctly defined by law, as distinguished from a special proceeding; and section 471 of the Code declares that where a civil action shall be brought, such action shall be conducted in conformity to this act.

Whether an affidavit, made in the original action in which the judgment was recovered, with notice of a motion for the appointment of a receiver founded thereon, would have been sufficient "before-the act of 1870 or not, it is clear that it is not the commencement of a civil action, within the requirements of the act of 1870. Tne proceedings were, therefore, irregular, and the order based thereon was improvidently granted.

The order appealed from should be reversed, with costs.

Daniels and Beady, JJ., concurred.

Order reversed, with costs.

       Chap. 151 Laws of 1870, p. 421.

       2 R. S., Edm. ed., p. 483.

       See Code, §§ 2, 3, 4, 5, 6.

       See City of Rochester v. Bronson, 41 How., 78; Bangs v. McIntosh, 23 Barb., 591; 6 Paige, 482; 10 id., 290; Mann v. Pentz, 3 N. Y., 415.


author: .Davis, F. J.:

text:
    THE BUCHANAN FARM OIL COMPANY Respondent, v. GEORGE WOODMAN and THOMAS EVANS, Appellants.

      Order of arrest—“ Fiduciary capacity ”—Fraudulent conspiracy—when must be set out in complaint.

    The complaint alleged: “ That at various dates between September 17, 1870, and March 20, 1873, the plaintiff deposited with the defendants, as its bankers, various sums of money, which said deposits, on the said 20th day of March, 1873, after deducting all credits due to said defendants, amounted in the aggregate to the sum of $29,500, leaving the defendants, on said last mentioned day, indebted to the plaintiff in the aforesaid sum and interest.” That the plaintiff had, since the said sum became due, demanded payment thereof from the defendants, who refused to pay the same, and that no part thereof had been paid.
      Meld, That these allegations showed only a cause of action arising upon contract, and that there was no averment from which it would be justly inferred that the indebtedness sued for, was for money received in “ a fiduciary capacity,” within the meaning of the Code.
    The affidavits used by the plaintiff on a motion for an order of arrest, contained allegations tending to show a fraudulent conspiracy between Rose, the plaintiff’s treasurer, and defendants, to get into the possession of defendants the money of plaintiff, so that Rose could use the same by defendants’ aid and connivance, in his individual stock speculations. Held, that an action to recover for such fraudulent acts, could only be maintained upon a complaint charging the alleged fraud and conspiracy; that such a cause of action was inconsistent with the cause set forth in the complaint, and that an order of arrest in this action could not be sustained.
    Appeal from an order of the Special Term, denying a motion to vacate an order of arrest. The facts are stated in the opinion.

      F. R. Shermcm, for the appellants.

      J. H. Watson, for the respondent.
   .Davis, F. J.:

The complaint in this action alleges, “that at various dates between September 17th, 1870, and March 20th, 1873, the plaintiff deposited with the defendants, as its bankers, various sums of money, which said deposits, on the said 20th day of March, 1873, after deducting all credits due to said defendants, amounted in the aggregate to the sum of twenty-nine thousand five hundred dollars, leaving the defendants, on said last-mentioned day, indebted to the plaintiff in the aforesaid sum and interest.” That the plaintiff has, since the said sum became due, demanded payment thereof from the defendants, but the defendants refuse to pay the same, and no part thereof has been paid; wherefore plaintiff demands judgment against the defendants, for twenty-nine thousand, five hundred dollars, and interest from March 20, 1873.”

These allegations fail to show anything more than a cause of action arising upon contract for moneys had and received; and there is no averment, from which a just inference can be taken, that the indebtedness sued for, is for money received in a “ fiduciary capacity,” within the meaning of the Code. The moneys are alleged to have been deposited with defendants as the bankers of plaintiff, and the indebtedness is stated as the balance of a current account, running through a period of two and a half years. The fair inference from the complaint is, that the moneys were deposited from time to time in the course of ordinary banking business, subject to checks at sight, and that it was neither intended nor supposed that the funds deposited were to be held in trust, but that the same were to be used, as customary with banks and baiikers under such circumstances, in the usual course of their business. In such case, the relation is that of debtor and creditor, and not that of trustee and cestui que trust. The credit is given to the pecuniary responsibility of the banker, and not to his personal integrity, and the deposit becomes the property of the recipient, to be paid for on demand as a debt due and payable upon the checks of the depositor.

The right of arrest, under section 179 of the Code, does not, in such a case, exist or arise as a part of the cause of action. “ The test is whether the specified moneys ought in good faith to have been kept and paid over, or whether the agent had a right to use the money. ”

Under the complaint, in this case, the plaintiff will, at the trial, make out his cause of action by producing the accounts rendered (as described in the affidavits), and no question of tortious conversion can properly arise on the complaint.

Nor do the affidavits tend to establish any fiduciary relation between the parties, within the meaning of the section of the Code above cited. They may be said, perhaps, to show that Rose, the treasurer of plaintiffs, transferred his account, as treasurer, from the Ninth National Bank to the defendants, for his private convenience, and that defendants knew of that purpose; but they show that the deposits were received by defendants, as bankers, and so kept and continued till the balance was struck and counterbalanced, by conveying the same to the account of W. W. Rose, as a credit against his individual indebtedness. The question at the trial may be, whether the defendants had any right to balance the account by such a debit; but that question does not involve any fiduciary relation.

Running through the affidavits on the plaintiff’s part, are allegations tending to show a fraudulent conspiracy between Rose, the plaintiff’s treasurer, and defendants, to get into the possession of defendants, the moneys of plaintiffs, so that Rose could use the same, by defendants’ aid and connivance, in his individual stock speculations. That such a fraudulent conspiracy might give to plaintiff a cause of action against any or all the parties implicated in it, need not be controverted; but such an action must be maintained upon a complaint charging the alleged frauds and conspiracy, and presenting .to defendants the opportunity to take issue and have a trial by jury upon the fact of their guilt or innocence. Undoubtedly, such a complaint would present a case in which the right of arrest would be involved in the cause of action. But, under the present complaint, no such issue is tendered or triable ; nor could it arise—except, possibly, as an incidental question affecting the alleged right of defendants to debit the account of Rose, as treasurer, with the balance due on his individual account. It is not at all material to the question, whether the money was received in a fiduciary capacity; and it is not averred in the complaint that the defendants received it tortiously, and are liable in an action for such a wrong. The cause of action,' assuming it to exist for fraudulent conspiracy, alleged, or attempted to be, in the affidavits, is not consistent with the cause set forth in the complaint, and therefore the order of arrest in this action cannot be sustained.

The order of arrest should therefore have been vacated. The order appealed from is reversed, with ten dollars costs of the appeal, and the motion to discharge the order of arrest is granted, with ten dollars costs.

Daniels and Beady, JJ., concurred.

Order reversed, with costs.

       McBurney v. Martin, 6 Robt., 502; Goodrich v. Dunbar, 17 Barb., 644; Schudder v. Shiels, 17 How., 420; Bussing v. Thompson, 15 How. Pr., 97.

       Stoll v. King, 8 How. Pr., 298.

       7 Abb. Pr., 171; Wickes v. Harmon, 12 Abb. Pr., 476; S. C., 21 How. Pr., 462.


text:
    THE HOME INSURANCE COMPANY, Plaintiff, v. WILLIAM WATSON and another, Defendants.

      Attachment — bond—consideration of.

    Certain moneys owing by the plaintiff to one Campbell, had been attached by the sheriff, in a suit brought by J. and D. Carolin against said Campbell. Judgment having been recovered in this suit, the plaintiff refused to pay over the money unless it was indemnified. A bond was accordingly executed by the defendants, conditioned to “indemnify, save, defend and keep harmless the said Home Insurance Company from and against the claims of the said James T. Campbell, and of all other persons claiming or to claim the said moneys so paid by the said insurance company to said sheriff, and of and from all costs, damages and expenses that shall or may happen or arise therefrom and the money was paid to the sheriff. Campbell subsequently sued the insurance company for the money, and was defeated, and judgment rendered against him, the costs and expenses of the company, in such suit, being $2,337.91; Campbell being insolvent, this suit was brought upon the bond to recover said amount. Held, that defendants were not liable ; that as to the claim of Campbell, it was established by the judgment of the court, in which he sought to enforce it, that ne had none; and that the costs, damages and expenses included in the judgment, did not arise because of any just and lawful claim, but from the false assertion of one against which the covenant was not intended to indemnify.

      Que?'e, whether the bond was not void for want of consideration, as it was the duty of the insurance company to pay over the money to the sheriff upon the recovery of the judgment in the attachment suit.

      Ohamib&rlain v. BéU&¡' (18 N. Y., 115) distinguished
    Controversy submitted without action, under section 372, of the Code of Procedure.
    The facts are stated in the opinion.

      Thomas H. Hubbard, for the plaintiff.

      M. Nolan, for the defendants.
   Davis, P. J.:

The question in this case arises upon a bond executed by the defendants as sureties.

The sheriff of the city and county of New York had attached certain moneys, owing by the plaintiff to one James T. Campbell, a resident of South Carolina, in a suit in the Supreme Court of this State, brought by James and Dennis Carolin against said Campbell. The regularity of the proceedings on the attachment is conceded. The indebtedness to Campbell is also admitted.

Judgment had been duly recovered in the attachment suit against Campbell, and execution duly issued. The sheriff on the execution demanded the attached moneys. The plaintiff refused to pay the same to him unless indemnified. The defendants thereupon executed the bond upon which the question now submitted arises, conditioned to “ indemnify, save, defend and keep harmless, the said Home Insurance Company, from and against the claims of the said James T. Campbell, and of all other persons claiming, or to claim, the said moneys, so paid by the said insurance company to said sheriff, and of and from all costs, damages and expenses that shall or may happen or arise therefrom.” Upon the execution of this bond, the insurance company paid over the attached indebtedness to the sheriff, who proceeded to apply the same to the execution and judgment. Afterward, Campbell sued the Home Insurance Company in the city of Charleston, to recover the same indebtedness. The company set up in defense, the suit in New York, the attachment and judgment, and the payment of the indebtedness to the sheriff; and, on this defense, successfully defeated the claim of Campbell, and recovered judgment against him, but were unable to collect their costs, Campbell having become insolvent. The company incurred expenses in defending the suit of Campbell, to the amount of $2,337.91, which are admitted by the statement, to have been reasonable and proper. The question presented, is, whether the plaintiffs are entitled to recover upon these facts, of the defendants, the amount of the penalty of their bond.

It is insisted, first, that the bond is without consideration. At common law, the seal imports a consideration; but, under our statute, the question of actual consideration is an open one, subject to the same inquiry and defense as if the instrument were a simple contract.

And the admission in the statement, that there was no other consideration for the bond than the forbearance to defend an action to recover the attached debt, and the payment, without suit or delay, of so much thereof' as would satisfy the judgment, brings the question whether the consideration was good and sufficient directly before the court. There is no doubt, upon the facts admitted by the statements, that the sheriff was entitled to collect the attached indebtedness, and to receive at once from the company, so much of the money owing thereon, as would extinguish the judgment and his lawful charges. The company had no lawful right to refuse to pay it to him. There was no controversy whatever as to the regularity of the attachment and judgment, nor as to the indebtedness to the judgment debtor; and these facts were not only undisputed at that time, but their existence was subsequently established by the result of the suit in South Carolina. The attachment and judgment were a complete justification and defense of the company’s making the payment to the sheriff; and, indeed, the sheriff had become the assignee and owner, by operation of law, of so much of the indebtedness to Campbell as was paid to him.

The company, in making the payment, did nothing more than the law, at the suit of the sheriff, would have compelled them to do; and the sheriff would have been awarded costs by the law, as his indemnity for the delay and the expense of the suit. It may well be doubted whether the bond is not without lawful consideration ; but, in the view we take of its condition, it is not necessary to determine that question.

No claim appears to have been made to the money by any person except Campbell, the judgment debtor. Upon the facts, before us, the bond must be deemed an indemnity against his claim. He is shown by the result to have had no claim, and it is established that his suit for the indebtedness was nothing but a false clamor, which has been proved to have been groundless, by the judgment of the court in which he sought to enforce it. So far, therefore, as relates to indemnity against Campbell’s claim, there has been no breach of the covenant, for no claim has been established, and none existed which could have been established. But the condition is not only to indemnify against any claim of Campbell, but against all costs, damages and expenses which the plaintiff might suffer by reason of his claim. This is to be construed in con sonance with the principal object of the indemnity, which was the claim itself. Where that is shown not to have existed at all, the costs, damages and expenses cannot be said to have arisen because of any just and lawful claim, but because of the false assertion of one. The covenant is not to indemnify against false and unlawful assertions of Campbell, or of the whole world, to tbe indebtedness of the company, but in substance is to indemnify the company in paying the money to the sheriff, if it shall turn out that Campbell, or anybody else, shall establish a better title, and compel the payment to him; and in that event, not only to make good to the company the amount paid to the sheriff, but also all costs, charges and expenses, to which it shall be subjected by reason of the superior title.

Regarding this as the true construction ■ of the condition of the bond, there has been no breach of it, entitling the plaintiff to recover, and hence the defendants are entitled to judgment, with costs.

Chamberlain v. Beller was upon a bond to the sheriff, under the statute. The sheriff’s jury having been waived, the court held that the bond was within the statute notwithstanding the waiver; and its effect was therefore to compel the sheriff to proceed where he would not at law have been obliged to act; the verdict which was assumed by the waiver being his protection for refusing to proceed until the bond should be given. We do not consider that case to be in point.

Judgment is therefore ordered for the defendants, with costs.

Beady and Daniels, JJ., concurred.

Judgment ordered for the defendants, with costs.

       2 R. S., 407, sec. 77.

       18 N. Y., 115, p. 119.


text:
    ISIDORE MOSSELMAN and CONSTANT POELAERT, Trustees of the Estate of SICHEL & COMPANY, Appellants, v. MEYER CAEN, Respondent.

      Complaint—fail/wre to show title to svhjecPmatter of action—when olgecUon may he taken — Trustees appointed under foreign bankrupt la/w—rights of in this State.

    A complaint must always show title in" the plaintiffs of the subject-matter of the action, or such an interest therein as indicates them to be proper parties to the litigation ; otherwise it fails to state facts sufficient to constitute a cause of action in favor of plaintiffs against defendant. This objection may be taken at the trial, and need not be raised by demurrer.
    The courts of this State will not recognize or enforce a right or title acquired under foreign bankrupt laws, or foreign bankrupt proceedings, so far as affects property within their jurisdiction, or demands against residents of this State. There is no distinction, in this respect, between cases of voluntary and of involuntary bankruptcy.
    The plaintiffs were trustees in bankruptcy of the firm of Sichel & Co., the members of which firm were residents, and subject to the laws, of the kingdom of Belgium, and were adjudged bankrupts in proper proceedings for that purpose in the Tribunal of Commerce, of the city of Brussels. As such trustees they claim to recover the value of certain property alleged to have been fraudulently obtained from the said bankrupts. At the trial the plaintiffs were nonsuited. Held, that this was proper, as the complaint did not state facts sufficient to constitute a cause of action.
    Appeal from a judgment in favor of the defendant, entered upon an order dismissing the plaintiffs’ complaint herein. The facts are stated in the opinion.
    Another controversy between these same parties, in relation to the same property, has already been- passed upon by the court, and is reported in 34 Barbour, page 66.

      Malcolm, Campbell and John B. Fogerty, for the appellant,
    cited Fulton Ins. Co. v. Baldwin (37 N. Y., 648); Patchin v. Peck (38 id., 39); Donnell v. Walsh (33 id., 44); Robbins v. Wells (18 Abb., 191) ; Lee v. Wilkes (27 How., 341); Eaton v. Balcom (33 id., 80); Hoyt v. Thompson (1 Seld., 320); Johnson v. Hunt (23 Wend., 87); Abraham v. Plestoro (3 id., 358); Story Conflict of Laws (§ 419).

      Lewis Sanders and George N. Sanders, for the respondent,
    cited Willitts v. Waite (25 N. Y., 586); Baldwin v. Hale (1 Wall., 223); Kelley v. Drury (9 Allen, 27); De Witt v. Chandler (11 Abb., 472).
   Davis, P. J.:

On the trial of this case, the plaintiffs offered to prove all the facts alleged in the complaint; to which the defendant’s counsel objected on the ground that the plaintiffs claiming as foreign trustees appointed by a foreign court, had no right to maintain this action; which objection was sustained. Plaintiffs excepted. Subsequently the defendant moved to dismiss the complaint, on the ground that it did not contain facts sufficient to constitute a cause of action. The court granted the motion and dismissed the complaint, to which plaintiff excepted.

It is obvious that the only point determined by the court below was that raised by the specific objection, to wit: that the trustees in this case have no right to maintain the action. It would not be right therefore, if this court deemed the other grounds now asserted by the counsel for the respondent, to be well taken, to affirm the judgment upon them, because if they had been put forward in the court below, it does not appear that amendments of the complaint, sufficient to have obviated such objections, would not have been allowed.

It is true, as insisted by appellants’ counsel, that the point on which the court disposed of the case, might properly have been taken by demurrer; but it was not of the class that is to be deemed to have been waived unless so taken. A complaint must always show title in the plaintiffs, of the subject-matter of the action, or such an interest therein as indicates them to be proper parties to the litigation; otherwise it fails to state facts sufficient to constitute a cause of action in favor of plaintiffs against defendant.

These cases hold, substantially, that a failure to show in the complaint, the title or interest above suggested, leaves such complaint open to the objection that it does not state facts sufficient to constitute a cause of action, and that the objection on that ground may be raised at the trial as well as by demurrer. The plaintiffs show themselves, by the averments of the complaint, to be trustees in bankruptcy of the firm of Sichel & Company. The members of that firm were residents of and subject to the laws of the kingdom of Belgium, and were adjudged bankrupts in proper proceedings for that purpose in the Tribunal of Commerce of the ■city of Brussels. As such trustees, the plaintiffs claim to recover the value of property alleged to have been fraudulently and tortiously obtained from said bankrupts. It is not distinctly averred whether the bankruptcy of Sichel & Co. was voluntary or involuntary (in the sense in which those terms are used in the courts of bankruptcy of the United States), but it is assumed by the appellants that they were voluntary bankrupts.

It seems to be the settled law of this State that our courts will not recognize or enforce a right or title acquired under foreign •bankrupt law or foreign bankrupt proceedings, so far as affects property within their jurisdiction, or demands against residents of the State. The distinction between cases of voluntary and involuntary bankruptcy does not seem to have been considered important; perhaps because in either case the transfer of title is by •operation of law or by adjudication of the courts. We feel bound by the rule laid down in the various cases, and if any such distinction as that relied upon by the appellants is to be made, it should come from the court of last resort, upon whose authority it will be final. The judgment should be affirmed.

Bbadt and Daniels, JJ., concurred.

Judgment affirmed.

       Code, sec. 148.

       Davis v. The Mayor of New York, 14 N. Y., page 506; Greene v. Breck, 10 Abb., 43; De Witt v. Chandler, 11 id., 459.

       See Mosselman v. Caen, 34 Barb., 66; Abraham v. Plestoro, 3 Wend., 538; Johnson v. Hunt, 23 id., 87; Holmes v. Remsen, 20 John., 229; Willitts v. Waite, 25 N. Y., 577; Hoyt v. Thompson, 19 id., 224, 225 ; 2 Kent’s Com., 406, 407; Hoyt v. Thompson, 1 Seld., 320; Harrison v. Sterry, 5 Cranch, 298; Ogden v. Saunders, 12 Wheat., 213.


text:
    CHARLES W. MOORES and another, Respondents, v. BENJAMIN P. LUNT and another, Appellants.

      Chapter 482, 1862—Lien on vessels—not created for materials used in construction of a vessel in another State—Pleadings—what allegations in, show that indebtedness an'ose in this State.

    An allegation in a complaint that the articles mentioned as sold were purchased and furnished to the vendee at the city of Mew York, is sufficient to show that the contract was made and the indebtedness arose in this State.
    A lien does not arise under chapter 482 of the Laws of 1862, for materialsfumished in this State, and used in the construction of a vessel inj another State.
    Appeal from a judgment, entered upon an .order overruling the-demurrer put in to the complaint in this action.

      Ed/wa/rd H. Hobbs, for the appellants.

      George W. Siclen, for the respondents.
   Davis, P. J.:

This is an appeal from a judgment, entered upon an order overruling a demurrer to the complaint. The grounds of demurrer,, stated, are: First, that the court has no jurisdiction of the subject of the action. Second, that the complaint does not state facts-sufficient to constitute a cause of action.

The complaint avers that about the 18th of July, 1871, one-Man son was the builder of an unfinished steamship or vessel now called and known by the name of the Metropolis, then hying upon the stocks, and in the course of construction at Hewburyport in the-State of Massachusetts; that said Manson, being the builder of said vessel as aforesaid, contracted a debt, at the city oí Hew York,, with the plaintiff, for materials and articles (specifying them), which were furnished in this State, to wit, at the city of Hew York, “for and toward the building, fitting, furnishing and equipping said steamship -or vessel.” The complaint then shows that application for a warrant was made to one of the justices of this court,, in September, 1871, to enforce the lien of the said debt; that a warrant was issued to the sheriff of the city and county of Hew York, who attached and seized the vessel; that thereupon, the defendant, Benjamin P. Lunt, and others, being the owners of said ship, applied to said justice for an order discharging the attachment, and executed the bond, set forth in the complaint, conditioned that the obligors will pay the amount of the claims and demands which plaintiffs “ shall establish to have been a subsisting lien upon such steamship or vessel, Metropolis, pursuant to the provisions of said act ” (the act of April 24th, 1862, therein before recited), “ at the time of exhibiting the same; ” that thereupon the vessel was discharged, and this action was commenced upon the bond. There seems to be no doubt, under the allegations of the complaint, that the debt was contracted within this State, nor that the articles were furnished to the builder within this State; nor that they were furnished for and toward the building, fitting out, furnishing and equipping of the vessel, then on the stocks and in process of construction at Eewburyport, Massachusetts. The point made by the demurrants, that the complaint does not show that the articles actually entered into the construction of the vessel, and therefore fails to show a lien, does not appear to us to be well taken. It is undoubtedly true, that it must be shown upon the trial, that they actually entered into such construction ; but the averment of the complaint follows the language of the statute; and to sustain the averment, the proof above mentioned must be given. The true construction of the language used by the statute and by the pleading is, that the materials were furnished for and entered into the construction of the vessel; and we think it, therefore, quite sufficient in a suit upon a bond of this character. It is urged, also, that the complaint does not aver the delivery of the articles ; but that fact, so far as necessary to be averred, must be deemed to be included in the words, “furnished for and towa/rd the building” etc., of the ship. We think it is not correct to assert that the debt must be held to have been contracted within the State of. Massachusetts, because the articles furnished were used in the construction of the ship in that State. The statute requires that the debt, to be a lien, must be contracted within this State; and the averments of the complaint are, substantially, that the articles mentioned were purchased and furnished at the city of New York, to the builder named, for the purposes mentioned. We think the contract and indebtedness are sufficiently shown to have arisen within, this State.

But the principal question in the case is, whether, upon the averments of the complaint as above construed, a lien upon the vessel is shown under the act of 1862. It appears that the ship was in process of construction at Newburyport in the State of Massáchusetts; and that while in such process the builder came to New York and bought the articles mentioned, of plaintiffs, at the prices stated, taking them to Newburyport and -applying them toward the building of the ship then on the stocks; and the point is, whether a lien on the vessel thereby arose by force of our statute, which can he enforced as such, under its provisions, whenever the ship, after being completed and launched, shall sail into the jurisdiction of this State. The lien created by the act of 1862, is purely statutory. It does not arise or exist except by operation of the statute; and in all cases where it exists, it arises at once (so far as the question in this case is concerned) upon the actual use of the materials furnished in the building, repairing, fitting, furnishing or equipping ” of the ship. It is the lien which arises at that time for the enforcement of which the statute provides the remedy of attachment. Does such a lien arise under the statute, where the materials are furnished for, and used in the construction of a ship in a foreign State %

The statutes of this State have no extra-territorial force. The act of 1862 cannot be enforced in Massachusetts. None of-the judges of the courts of that State could issue, under the provisions of our act, the attachment thereby- given, to enforce the lien at Newburyport, before the vessel should have sailed from that port.Nor would those courts have recognized any lien on the ship by force of our statute, under the facts of this case.

If the- statute has no extra-territorial effect, how can it be said to have created a lien upon the ship while beyond our jurisdiction % It is difficult to see the precise grounds upon which such a lien can be said to stand. If it be argued that a lien springs up by force of the statute, whenever the ship comes within our jurisdiction, the answer will be that such a case is not provided for by the statute; and it is doubtful whether it can be enacted by a State, that a lien which did not already exist, shall arise from the act of sailing into the jurisdiction of a State, to be enforced by the State courts. Such a consequence of inter-state navigation, might conflict with the federal Constitution and the laws of congress. It is not necessary, however, to pass upon that question, because a careful examination will show, as it seems to us, that it was not intended by the act of 1862, to create liens upon vessels not within this State, and there incurring debts for the purposes mentioned in the act. The iteration and reiteration of the words, “ within this State,” and “ in this State,” in the first section, seem to indicate an intention that those words shall be taken distributively, and applied to all the material facts made by the act elementary to the lien.

The second section first provides, that the debt shall cease to be a lien at the expiration of six months after the debt was contracted, unless, at the time when said six months shall expire, such ship or vessel shall be absent from the port at which such debt was contracted, in which case, such lien shall continue until the expiration of ten days after such ship or vessel shall next return to said port. This provision cannot be applied to a vessel constructed or repaired in a foreign State, without holding that the lien continues without limitation until the vessel shall have once entered the port where the debt was contracted, and afterward “ next r.etwrn ” to the same port. A more sensible view would be to hold that the words, “ next return to said port,” when coupled with the words in the first section, which require the debts to be contracted “ within the State,” indicate a clear intent to limit the lien to vessels within the State when the lien accrues.

The next provision of the second section, is, that “in all cases, such debt shall cease to be a lien upon such ship or vessel, whenever such ship or vessel shall leave the port at which such debt was contracted, unless the person having such lien shall, within twelve days after such departure, cause to be drawn up and filed, specifications of such lien, which may consist either of a bill of particulars of the demand, or a copy of any written contract under which the work may be done, with a statement of the amount claimed to be due on such vessel, the correctness of which shall be sworn to by such person, his legal representative, agent or assigns.” The third section declares that such specification shall be filed in the office of the cleric of the county in which such debt shall have been contracted, etc.

It does not seem possible that the legislature intended by this provision, to establish perpetual - liens on ships constructed or repaired abroad, for materials sold and furnished in this State, with no requirement of any public notice thereof, unless the ship shall enter the port where the debt was contracted, and afterward depart therefrom.

By applying these provisions only to cases of vessels built or repaired, or purchasing and receiving in this State the articles and services named in the act, we have a system of liens, simple and easy of enforcement; but by applying them to vessels building in other States, we have one full of difficulty and embarrassments, both to the lienor and to the property sought to be affected, and leading to grave conflicts between our statute of liens, and the statutes of other States.

The general purpose of the statute in such cases, is obviously to protect our own citizens, who furnish materials, etc., to ships and vessels, from liability to losses from the transitory nature of the property benefited, the act of using which generally carries it out of the jurisdiction of. our local tribunals. A specific lien, under certain circumstances, is given, and one of those circumstances, in our opinion is, that the work shall be done, or the materials shall be furnished and applied, for which the lien is claimed within our territorial jurisdiction.

The judgment and order must be reversed, and judgment ordered lipón the demurrer for the defendants.

Daniels, J., concurred.

Judgment and order reversed, and judgment ordered for the defendants upon the demurrer.

         Hiscock v. Harbeck, 2 Bosworth, 506; Phillips v. Wright, 5 Sandford, 342.

       Chapter 482, Laws 1862, pp. 956-957, § 1.

       See Phillips v. Wright, 5 Sandford, at p. 362.