author: By the Court.—Monell, J.

text:
    THE NEW YORK AND HARLEM RAILROAD COMPANY, Respondent, v. GEORGE HAWS, Appellant, and PETER MALADY, Respondent.
    The finder of lost money or property has the right to its custody, and his claim or title to the property is good against the world, except the real owner, who lost the same.
    The fact of a person finding property lost or abandoned, is sufiicient to give him a right of action against any person who seeks to deprive him'of its possession. In McLaughlin «. Waite (5 Wend. 405), a distinction is made between articles found that had/been secreted in the earth, and such as are found upon its surface. ‘'In the case of the latter, the chancellor says, that if no owner appears to claim them, it may be presumed that they have been intentionally abandoned by the former proprietor, and consequently belong absolutely to the finder.
    Such right is not affected by the place where the articles were found (Bridges «. Hawkesworth, 17 Eng. L. and Eq. 434).
    In Matthews *. Harsell (1 E. D. Smith, 393), a doubt was expressed as to whether a servant who finds a chattel in the house of an employer, acquired a title to it; but this doubt arpse from the relation between master and servant, and was not suggested by the place where the chattel was found. Held under these and other authorities (see opinion of the court) that a person finding a package of money in a railroad car is entitled to the custody and possession of the same, as against the railroad company or its officers; and if the finder places it in their custody for the purpose of finding the true owner, they hold it only as the bailee of the finder (the bailor), and they cannot hold it against their bailor’s wishes, nor dispute his title to the same.
    The only qualification to this ruling is where the bailee has been compelled by action to return or pay for the property to the real owner (Cook v. Holt, 48 H. Y. 275).
    The finder of a lost chattel has no lien upon it for any expenses incurred in respect to it, either for rescuing or preserving it (Baker ®. Hoag, 7 Barb. 118), except for salvage by the common law or statutes concerning wrecks. This principle was confirmed in the last cited case in the Court of Appeals (7 JY. Y. 555).
    In an action of interpleader the following rules apply :
    It cannot be maintained except in cases where the plaintiff can be protected in no other way from an unjust litigation in which he has no interest. The object of such an action, is to protect a person standing in the situation of a stakeholder (Badeau v. Rogers, 2 Paige, 209).
    The plaintiff must disclaim any interest in the subject of the action (Atkinson v. Marks, 1 Oon. 691). It must be averred that the plaintiff is uncertain to whom the right belongs ( Wélf. Eq. B. 152), and he must offer to, and actually bring the money into court, before taking any steps in the cause ,(Meux ®. Bell, 6 Sim. 75), and the action must be brought before or immediately after the commencement of the suit at law, and not after verdict or judgment therein (Cornish ®. Farmer, 1 Young & Jer. 338). .
    And an action of this nature will not lie where as to either of the defendants the plaintiff is or has been a wrongdoer in the premises (Shaw ® Coster, 8 Paige, 339 ; Rogers ®. Weir, 34 JY. Y. 469; Lund ®. Seaman’s Savings Bank, 20 How. Pr. R. 461 also same case, 23 How. Pr. R. 258).
    The ground of an interpleader is that there is a conflict between two or more persons claiming the same debt or property, and the double claim has not been occasioned by the person liable to discharge the debt, or deliver up the property (Wilson ®. Duncan, 8 Abb. 354; Deesborough ®. Harris, 31 Eng. L. and Eq. 592).
    Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided April 5, 1873.
    Appeal from a judgment.

      The defendant Haws, a passenger in one of the plaintiffs’ cars, found a package- in the car containing $1,045 in money. He handed it to the conductor without examination, and told him he had found it; supposed some one had dropped it; requested the conductor to inquire for the loser, and if not found, to report to him on his return trip.
    The conductor gave -the package to the plaintiffs’ treasurer. The owner was not found. After waiting several months Haws demanded the money of the plaintiffs, and on their refusal, commenced an action for its recovery, and prosecuted it to the recovery of a verdict for the amount. After such recovery, and before any judgment had been entered, the defendant Malady claimed to have lost the money, and demanded it of the plaintiffs, threatening a suit if it was not paid to him.
    Thereupon this action was commenced, the complaint alleging substantially the above facts, and demanded as relief that the claim of Malady to said money may in this action be judicially passed upon and determined by this court, and payment thereof be directed to him, 'if he shall satisfactorily establish his ownership thereof; that the defendant Haws may be enjoined" and restrained from prosecuting his said action against this plaintiff for the recovery of the said money, and from - taking any proceedings upon the said judgment, so recovered by him or in said action.
    That the costs and expenses of this plaintiff, in this action, and in the said action commenced against this plaintiff, by said defendant Haws, as aforesaid, may be adjudged to be paid out of the said money.
    The action was tried by a justice of this court, without a jury.
    The conductor testified that Haws said to him that he had found a package in the car, and said, “I give it to you as rightfully belonging to you.” “Ward, you are the proper man to have it; probably it belongs to the short man who stepped off, or to some one in the train.”
    The plaintiffs proved that it was a regulation of the company for the government of its employés, requiring articles found in the cars to be left in the company’s office.
    Haws testified that he said to the conductor, “ I found this package on the floor of the rear car, and I suppose some one on the car has dropped it; you had better take it, and see if the owner applies to you for it; if he does not, when you return, I want you to see me, and tell me what you have done with it.”
    The court found as facts:
    That on or about the 28th day of January, 1868, the defendant, George Haws, found in one of the cars of the plaintiffs’, at or near White Plains, in the county of Westchester, a package containing one thousand and forty-five dollars in money.
    That said defendant, George Haws, delivered said sum of one thousand and forty-five dollars to the plaintiffs, to be held by them, for the owner thereof, and that the plaintiffs accepted the said sum of one thousand and forty-five dollars.
    That on or about the 28th day of January, 1868, the defendant, Peter Malady, was a passenger in one of the cars of the plaintiffs’, and while at or near the said White Plains, lost said package containing said sum of one thousand and forty-five dollars.
    That Peter Malady was and is the owner of said sum of money lost by him as aforesaid.
    That in the month of November, 1868, the defendant, George Haws, commenced an action in this court against this plaintiff, that the said sum of one thousand and forty-five dollars be paid to him ; and in said action the defendant, George Haws, obtained a verdict against this plaintiff for the sum of eleven hundred and twenty dollars.

      That said money as claimed by the defendant, George Haws, and for which he obtained a verdict against this plaintiff,. was the money belonging to the defendant Malady, claimed by the defendant Malady in this action.
    That the plaintiffs had no interest and made no claim to said money, other than as trustees thereof for the actual owner, and the plaintiffs’ expenses in protecting said money for the owner thereof.
    That defendant Haws has no interest in or claim to said money.
    That the plaintiff is entitled to be paid out of said money for its taxable disbursements in defending said action, so as aforesaid brought by said Haws, and the costs and disbursements in the prosecution of this action, and the costs on appeal and the costs .and disbursements on said trial before, and a counsel fee of one hundred dollars in addition thereto.
    CONCLUSIONS OE LAW.
    That the defendant, Peter Malady, is the true and legal owner of said money.
    That the defendant, George Haws, is not the owner of and has no claim to or interest in said money.
    That the plaintiff has held said money as trustee for the owner thereof, and is entitled to be paid out of said money for the costs and expenses incurred by it, a sum which shall be equal to the taxable costs and disbursements in this action, the taxable disbursements in the said suit brought by the said Haws, and the costs on appeal and the costs and disbursements before trial on the new trial, together with a counsel fee of one hundred dollars.
    That the plaintiff is indebted to the defendant, Peter Malady, upon said money so held by the plaintiff in the sum of one thousand and forty-five dollars principal, and three hundred and eight Tfg- dollars interest, amounting together to the sum of one thousand three hundred and fifty-three yfg- dollars, and out of said sum the plaintiff is entitled to deduct for its costs and expenses a sum which shall be equal to the taxable disbursements in the action brought by said Haws against it, and the taxable costs and disbursements in this action, and costs on the appeal before argument, and the costs and disbursements before trial on a new trial, together with a counsel fee of one hundred dollars.
    Judgment was thereupon ordered as follows :
    That the plaintiff be allowed out of said money a sum which shall be equal to the aggregate of the taxable disbursements in the action brought by said Haws against it, and the taxable costs and disbursements in this action, and the costs on appeal before argument, and the costs and disbursements in new trial before trial, together with a counsel fee of one hundred dollars.
    That plaintiff pay to the defendant, Peter Malady, the balance of said sum of one thousand three hundred and fifty-three dollars, remaining after deducting therefrom the sum hereby allowed to it for its costs and expenses.
    That the defendant, George Haws, be enjoined and restrained from prosecuting this said action or any action against this plaintiff, for the recovery of said money, and from taking any proceedings upon the said verdict recovered by him against this plaintiff in said action, brought by him or otherwise, for the recovery of said money from the plaintiff or any part thereof.
    Judgment was entered in conformity with the decision, and “that the defendant, George Haws, be, and he hereby is, enjoined and restrained from prosecuting his said action, or any action, against this plaintiff for the recovery of said money, namely, the money which forms the subject-matter of this action, and from taking

      any proceedings upon the said verdict recovered by him against this plaintiff in said action brought by him, or otherwise, for the recovery of said money from this plaintiff, or any part thereof.” •
    The plaintiffs and the defendant Haws appealed.
    The defendant Malady did not. appeal.
    The plaintiffs’ appeal was abandoned, and the case was he=.rd only on the appeal of Haws.

      Mr. E. Cook, for appellant (Haws).

      Mr. M. Beach, for respondent (plaintiff).

      Mr. Wernberg, for respondent (Malady).
   By the Court.—Monell, J.

I think it quite free from doubt, that the direction of the learned justice in the action of Haws against the railroad company was correct. As between those parties, Haws was the owner of the money, and had the right to its custody ; and his claim or title could be made to yield only to the superior title of the real owner. But, until the real owner was found, the finder as against all others is to be regarded as the owner (McLaughlin v. Waite, 5 Wend. 405; Amory v. Delamire, 1 Strange, 505).

And such finding is sufficient to give a right of action by the finder against any person who wrongfully deprives him of the possession (Ibid.).

Nor was such right affected by the fact that the package was found in one of the plaintiffs’ cars. •

In McLaughlin v. Waite (supra), a distinction is made between articles secreted in the earth and such as are found upon the surface. The latter, the chancellor says, if no owner appears to claim them, it is presumed they have been intentionally abandoned by the former proprietor. They consequently belong to the finder.

, In Matthews 'o. Harsel, 1 E. D. Smith, 393, a package of Texas notes were found by a servant in the house of her mistress. She handed the package to her mistress to keep for her, who intrusted them to the defendant to ascertain their value. The defendant sold them and appropriated the proceeds. The servant sued and recovered.

A doubt was expressed whether a servant, who finds a chattel in the house of his employer, acquired a title to it; but the doubt grew out of the relation between such persons, and was not suggested by the place where the chattel was found.

In Bridges v. Hawkesworth, 7 Eng. L. and Eq. 424, the plaintiff found upon the floor of the defendant’s shop a parcel containing bank notes. The defendant was told by the plaintiff that he had found the notes, and he “asked the defendant to keep them until the owner-appeared to claim them.” The defendant advertised the notes, but no one appeared to claim them. Upon a subsequent demand and refusal, the action was brought. The case turned upon the single point whether the circumstance of the notes having been found inside the defendant’s shop, gave him the right to have them as against the plaintiff who found them. It was held (Patterson, J.) that such circumstances did not take it out of the general rule of law, that the finder of a lost article is entitled to it as against all persons, except the real owner; and that the place in which it is found makes no legal difference.

The regulation, of which there was some proof, to the effect that articles found in the cars should be left in the company’s office, was merely for the government of its employes, and could not affect the rights of any finder who did not hold a relation of employe of the company.

The finding of. fact by the court was, that Haws delivered the money to the plaintiffs “ to be held by them for the owner, and that they accepted the same.” There is nothing in the finding one way or the other, that Haws' did or did not intend to divest himself of any title that he might have to it.

There was nothing in the form or manner of the deposit from which it could be found or inferred that Haws did so intend; but, as in the case of Bridges v. Hawkesworth (supra), it could have been found, had it been necessary, that at the time Haws delivered the notes to the plaintiff, he did not intend to divest himself of his title to them. In that, as in this case, the notes were given to be kept until the owner appeared to claim them.

It stands then supported by authority, that, as between Haws and the railroad company, the former had the better right to the money, and on their refusal to return it, became liable to him.

The conclusion of the justice, that the plaintiffs held the money as trustees for the owner, is not, therefore, except perhaps as between the company and Malady, in harmony with the rules of law I have stated. They did not hold it as trustees, nor could they assert any such relation to it as respects their relation to Haws, the finder.

At the most, the company could claim, that they held the money as mere bailees for Haws, the finder and bailor ; and in that character, it is well settled that they could not dispute their bailor’s title (Vosburgh v. Huntington, 15 Abb. 254; 2 Story Eq. Jus. §§ 816, 817), and the only qualification of this rule is, where the bailee has been compelled by action, of which the bailor had notice, to pay for the property to one having the true title (Cook v. Holt, 48 N. Y. R. 275). Therefore, even had Malady appeared and claimed the money as the real owner, the railroad company could not have set up such claim as a defence to Haws’ action.

Nothing short of a recovery in an action by Malady would have been available, and it is doubtful if such recovery would be sufficient without also showing aliunde that Malady was the true owner (Mierson v. Hope, 2 Sweeny, 561).

The finder of a lost chattel has no lien upon it for any expenses incurred in respect to it, either for rescuing or preserving it (Baker v. Hoag, 7 Barb. 113), except for salvage hy the common law or statute concerning wrecks. This principle was confirmed by the Court of Appeals in the same case (7 N. Y. R. 555).

It therefore follows, that Haws had no lien upon the money for any expenses incurred hy him in respect to it; and also, and a fortiori, that the railroad company had no such lien.

They were in all respects subordinated to the rights of Haws, and could look, if they could look at all, only to him, as their principal, for any expenses incurred.

In this view it is impossible to reconcile with the law that part of the judgment which awards to the plaintiffs, to he paid out of the fund, the costs and expenses they had incurred in defending themselves against the rightful suit of Haws, and their costs and expenses in prosecuting this action.

But, as that part of the judgment has not been appealed from hy the defendant Malady, who alone is affected hy it, it is not necessary to pursue the subject further.

This action is claimed to he in the nature of an inter-pleader. It is alleged that the plaintiffs have a sum of money delivered to them hy Haws, the finder, which the defendant Malady claims as owner ; and the plaintiffs ask that Malady’s right to it may judicially he determined hy the court, and that Haws he enjoined from further prosecuting his action.

There is no provision of law which authorizes such an action. The 122d section of the Code is the only statute which provides a remedy for settling adverse claims or interests. Under that section, the court may determine any controversy between the parties before it, or, when a complete determination cannot be had without the presence of other parties, may order them to be brought in. So a person, not a party to the action, but having an interest in the subject of it, may apply to be made a party.

Bat that provision of the statute applies to pending actions, and does not in terms authorize an independent action to reach the same results.

Thus the railroad company, when Malady made claim to the money, could by supplemental answer, have had him brought into the pending action of Haws ; or Malady could have applied to have himself made a party to it.

This view of the section was taken in Beck v. Stephani (9 How. Pr. R. 193).

As this is an independent action; it remains to be seen whether it can be sustained upon principles applicable to actions of interpleader.

The object of that action is to protect a person standing in the situation of an innocent stakeholder (Badeau v. Rogers, 2 Paige, 209).

The plaintiff must disclaim any interest in the subject of the action (Atkinson v. Mauks, 1 Cow. 691). It must be averred that the plaintiff is uncertain as to whom the right belongs (Welf. Eq. Pl. 152), and he must also aver an offer to, and actually bring the money into court, before taking any steps in the cause (Meux v. Bell, 6 Sim. 75). And finally, the action of interpleader cannot be maintained, except in cases where the plaintiff can in no other way be protected from an unjust litigation, in which he has no interest (Badeau v. Rogers, supra), and in all cases the action must -be brought immediately after or before the commencement of proceedings at law, and not after verdict or judgment has been obtained (Cornish v. Farmer, 1 Young & Jer. 333).

From these elements which enter into the action of interpleader, it will be seen that few of them exist in the present action.

(1) . The plaintiffs do not fully disclaim all interest in the money, but allege that they held it as trustee for the real owner, and for their reasonable expenses, and counsel fees, in the protection of the money for the true oioner.

(2) . It is not alleged that it is uncertain to whom the money belongs.

(3) . There was no offer to or actual bringing the money into court.

Again, the action was not brought until after verdict; and there are other remedies provided which the plaintiffs might have resorted to.

These are in my judgment sufficient to deprive the action of any claim to be one of interpleader, or even in the nature of an interpleader.

But another reason exists which is probably more conclusive. An action of this nature will not lie where as to either of the defendants the plaintiff is a wrong-doer (Shaw v. Coster, 8 Paige, 339). In that case the sheriff filed a bill to settle conflicting claims of several persons to property, which he had levied upon and sold under an execution. But the bill was dismissed on the ground that as to the claimants to the property, the sheriff was quasi a trespasser, and that they could not be compelled to come into a court of equity and litigate the question of right to such property with the creditor in the execution, instead of trying the question at law against the sheriff himself as the wrong-doer. This case is cited and approved in Rogers v. Weir, 34 N. Y. R. 469.

In Lund v. Seaman’s Saving Bank, 20 How. Pr. R. 461, a motion was made by the defendants to substitute an alleged claimant of the money in their place as defendants, which was denied. The court held this language: “The plaintiff might well claim that the bank having received the money from him, and having agreed to repay the same to him, could not with legal propriety recognize the legal claims of others who were not in privity with him, or claiming through him, or under his title, but by a superior and hostile title.” See also same case, 23 How. Pr. R. 258.

We have already seen that towards Haws the railroad company was a wrong-doer.

The refusal to return the money to him, put the latter in default, amounting to a conversion, and estopped them from setting up title in any third person (Trigg v. Hitz, 17 Abbott, 436). They did not qualify their refusal, but claimed a right to it, superior to the claim of Haws, and the court in Rogers v. Weir (supra) say, such a refusal is evidence of a conversion.

And Mr. Justice Hoffman in this court (Wilson v. Duncan, 8 Abb. 354), says (quoting from the chancellor in Deesborough v. Harris, 31 Eng. L. and Eq. 592), that the ground of an interpleader is that there is a conflict between two or more persons claiming the same debt, and that the double claim has not,been occasioned by the conduct of the person who is liable to discharge the debt or obligation.

The plaintiffs by their misconduct have caused the double claim to be made. Had they delivered the money to Haws as they were legally bound to do, there would have been no necessity for any interpleading, and Haws would have had the right of having Malady’s claim to it tried and determined by a jury, and not without a jury, as was done in this case.

Upon mature consideration of the facts and circumstances of this case, from the time the money was found by Haws, I am satisfied that this action was and is without legal justification. The plaintiffs were clearly in the wrong when they refused to return the money to Haws, and equally in the wrong when they drove him to his suit, and then defended it.

They had no legal defence, and standing in the character of the mere agents or "bailees of Haws, they could not dispute his title in that action, nor should they "be permitted to dispute it in any other.

The result is, that in our judgment Haws ought not to have been restrained in the prosecution of his suit for the recovery of the money ; or if he was, he should at least have been allowed and paid his reasonable expenses incurred in that litigation. The railroad company were permitted to retain a sum sufficient to indemnify themselves, for their expenses of an action which their own wrongful act had caused, when they had no lien upon the fund of any kind whatever. But no such provision was made for Haws. He, the finder, was not only not rewarded, but was refused all indemnity for his expenses in a litigation, forced upon him by the railroad company, and in which he was successful. Hot only* as owner, as between himself and the company, was he right in bringing the action, but also, in one sense, he was endeavoring to protect the fund for the real owner, and it seems to me that if any one was entitled to indemnity, Haws’ claim should have been first allowed: more especially as his recovery against the company carried the costs of the action, and of which he was wholly deprived by the judgment in this.

The hardship is, that this whole litigation falls heavily upon Malady. But it cannot be regarded as anything other than a misfortune which attends almost every "loser of property in his endeavor to recover it.

He must prove his title, and usually in a court of law.

It is probably not too late for him to do so again. He can still apply to be let in to defend Haws’ suit; and upon that application the terms can be adjusted to protect and indemnify Haws. If after Malady is let in to defend, Haws continues the litigation, he cannot complain if he has to pay costs.

Our conclusions leave Haws at liberty to prosecute his action to judgment; but as Malady did not appeal, and as the appeal of the railroad company was abandoned, the remainder of the judgment must stand.

We, therefore, upon Haws’ appeal reverse the judgment, so far as it restrains his prosecuting his action against the railroad company, and direct judgment absolute for him, dissolving the injunction, and dismissing the complaint as to him, with costs of the trial at Special Term, but without costs to either party upon this appeal.

Sedgwick and Van Vorst, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    HARVEY WEED, Plaintiff and Respondent, v. THE MUTUAL BENEFIT LIFE INSURANCE COMPANY, Defendant and Appellant.
    The mere fact that a man commits suicide, does not create a legal presumption that he is insane.
    The general presumption is that every man is sane until the contrary is shown by the facts of the case. Suicide is but one fact which unites with all other pertinent facts that are submitted to the jury for a verdict as to whether all the facts in the case establish insanity.
    The decision of the General Term in Coffey v. Home Life Ins. Co., rendered February 1, 1873 {seepage 314 ante), approved.
    Before Monell, Curtis, and Sedgwick, JJ.

      Decided April 5, 1873.
    The action was on a policy of life insurance, on the life of James M. Benedict. The policy provided, that in case he should “ die by his own hand,” it should be void, null, and of no effect. The deceased died by shooting himself with a pistol.
    The court charged the jury “that the act of self-destruction, unexplained, is of itself presumptive evidence that the person committing it was not in his right state of mind at the time of the commission of the deed.” The other parts of the charge show that the words “not in his right state of mind,” here used, were intended by the judge to mean “insane.” He had charged that if Benedict, at the time of the firing of the pistol, was insane to an extent which rendered him incapable of understanding the nature and consequences of the act he was about to commit, the plaintiff should have a verdict.
    The judge refused on request to charge that61 James M. Benedict’s shooting himself affords no presumption that he was insane.”
    Exceptions were taken by defendant.
    The plaintiff had a judgment, from which this appeal was taken.

      Mr. Alvin O. Bradley, for appellant.

      Hon. E. L. Fancher, for respondent.
   By the Court.—Sedgwick, J.

The General Term of this court, in Coffey v. Home Life Ins. Co., argued at the April Term, 1872 (see page 314 ante), passed upon the questions which are raised by the exceptions stated in this case.

That case decided, that under such circumstances as the present, the mere fact that a man kills himself, does not create a presumption that he is insane. The general presumption is, that every man is sane until the contrary is proven by the facts of the case. Suicide is but one fact, which goes with all other pertinent facts to the jury, for the purpose of getting from them a verdict as to whether the facts prove insanity.

The exceptions taken in this case were to matters that raised the question here alluded to.

The judgment should thereupon be reversed, with costs to appellant to abide the event, and there should be a new trial.

Monell and Curtis, JJ., concurred.


author: By the Court.—-Monell, J.

text:
    ADAM RITTER, Executor, etc., Plaintiff, v. SAMUEL PHILLIPS, et al., Defendants.
    Although judges of the General Term, on the hearing and determination of an appeal, were mistaken in assuming as a fact in the case, that a certain witness was in attendance at the trial, and could have heen called to contradict the testimony of one of the parties, yet it affords no sufficient ground for a re-argument, if it appears on the hearing of the motion for re-argument that the evidence of the witness would have heen simply cumulative.
    It cannot he said that a party is surprised hy any evidence on a trial if he is prepared to fully meet and rehut the evidence.
    Before Monell, Freedman, and Curtis, JJ.

      Decided April 5, 1873.
    Motion for the re-argument of an appeal from an order.
    A motion was made at the Special Term for a new trial, on the ground of surprise and of newly discovered evidence, which was granted. Upon appeal to the General Term, the order granting a new trial was reversed.
    The motion now made is founded on the allegation, that the court at the General Term was in error in assuming a fact which was not in the case.
    The action was to foreclose a mortgage, and the controversy was whether the interest was six or .seven per cent. The plaintiff claimed that by an agreement extending tide payment of the principal, it was agreed that the interest thereafter should be at the rate of seven per cent.
    The plaintiff had testified on the trial that Kreckler, the grantee of the mortgage, was present, when he (plaintiff) told him the interest was seven per cent. Kreckler and his wife, who were afterwards examined, testified that Kreckler was not present, but that "his wife was present with one Fitzpatrick.
    The evidence of the plaintiff was alleged to be a surprise.
    The court at General Term, in disposing of the alleged surprise, remarked that Kreckler, his wife, “ and the witness Fitzpatrick” were present when the plaintiff gave his evidence, and afterwards upon their examination, denied that Mr. Kreckler was present when his wife paid the interest.
    It is now averred that Fitzpatrick was not present or examined on the trial.

      Mr. Frost, for the motion.

      Mr. Porter opposed.
   By the Court.—-Monell, J.

It was undoubtedly a mistake in assuming that Fitzpatrick was in attendance at the trial, and could have been called to contradict the plaintiff’s statement, that Mr. Kreckler was present when the interest was paid. It now appears that Fitzpatrick was not examined as a witness on the trial, and the affidavits state that he was not even in attendance.

But Kreckler and his wife were present at the trial and were examined as witnesses after the plaintiff had given his evidence. Mr. Kreckler testified that he was not with his wife when she paid the interest, and Mrs. Kreckler confirmed his statement, and added that it was Fitzpatrick, and not her husband, who was with her.

It cannot "be said that a party is surprised by any evidence given on a trial, if he is prepared to fully meet and rebut it. That the defendants were prepared in this "case, is apparent from the fact that they did offer themselves as witnesses, and were examined and testified in rebuttal of the plaintiff’s testimony.

The evidence of Fitzpatrick, if he had been present, would have been to the same purpose, and therefore clearly cumulative.

This furnishes no reason for a new trial, and renders the misstatement of the fact of Fitzpatrick’s presence at the trial wholly immaterial.

This being the only ground for a re-argument of the appeal, the motion must be denied, with $10 costs.

Freedman and Curtis, JJ., concurred.


author: By the Court.—Freedman, J.

text:
    ELIZABETH MYERS, Plaintiff and Respondent, v. ISAAC DIXON, Defendant and Appellant.
    Where a party presents several requests to charge, and on the refusal of the court to charge them except so far as they had been charged, the exception to such refusal is a general one to the refusal of the court to charge all of the propositions, and if any one of them was unsound, the exception •was untenable.
    The ruling of the Court of Appeals in Barker v. Savage, 45 J7. 7. 191, applicable to the respective rights of footmen and teams in the use of the streets considered, and applied to this case.
    Before Monell, Freedman, and Curtis, JJ.

      Decided April 5, 1873.
    Appeal from judgment and order denying defendant’s motion upon the minutes for a new trial.
    The action is for personal injuries sustained by plaintiff in consequence of being run over by a horse and wagon driven by defendant’s servant.
    The jury rendered a verdict for plaintiff for $1,500.

      Edward S. Lawson, for appellant.

      C. P. Hoffman, for respondent.
   By the Court.—Freedman, J.

According to the evidence, plaintiff, a lady seventy-four years of age, in the forenoon of the 7th of September, 1869, left her home in Charlton street to go to Bank street. She was quite a smart walker for her age. On arriving at the corner of Charlton and Hudson streets, she attempted to cross the latter from west to east. Before starting to cross she looked up and down Hudson street, and seeing nothing, she proceeded to cross on the northerly crosswalk to the north-easterly corner of said streets. When a little more than half-way over, she heard a wagon approaching from the south, coming up Hudson street. When she first saw it, it was on the lower or southerly side of Charlton street, and it was driven at such a rapid rate of speed that she became scared and hurried very much to get across, at the same time holding up her right hand to warn the driver. The wagon still continuing to come towards her, notwithstanding the street was clear, with the exception of a truck standing in it near the corner to which plaintiff was crossing, and nothing could be seen either coming up or going down, she diverged a little from the crosswalk to the north to give the driver more room and to escape, if possible. But this did not save her. She was struck on the right side and knocked over against the truck standing there, where she fell to the ground. Her injuries were quite severe, but the driver paid no attention to her, and drove on until stopped by third parties and brought back. All these facts fully appeared at the time jDlaintiff rested, together with the additional fact that the wagon in question "belonged to defendant, and at the time was in charge of defendant’s servant. Upon this state of facts, it would have been error on the part of the court to have granted defendant’s motion for a non-suit. On a motion of this character, all disputed facts are to be decided in favor of the plaintiff, and all presumptions and inferences which plaintiff has a right to ask from the jury, are to be conceded to him.

The subsequent testimony of defendant’s driver did not improve defendant’s case in anyway. According to his account, he came up Hudson street at a trot of five miles per hour and within eight feet of the easterly sidewalk of that street. When he first saw plaintiff, she was about ten feet from his horse, about six feet off the crosswalk, and running across Hudson street to the easterly side thereof. He also testified that his horse was perfectly manageable ; that he could give no reason why he should not have seen her before he came to Charlton street, if he had been looking ahead; and that as soon as he did perceive her, he attempted to stop his horse and turned his horse’s head to the west, but that he did not succeed in clearing her.

This evidence, which was the best evidence defendant did produce as to the occurrence, established clearly that there was negligence on the part of the driver, which made the defendant liable for the injury, unless the negligence of the plaintiff herself contributed in some way. For in Barker v. Savage, 45 M. Y. 191, the Court of Appeals not only held that footmen and teams have equal rights on such occasions, and in its exercise are bound to use reasonable care for their own safety, and to avoid doing injury to any others who may be in the exercise of the equal right of way with them, but also held that, when upon such an occasion it is made to appear that the driver of a horse and wagon could have stopped his horse in time, or so have guided it as to have avoided running against a foot passenger, his negligence, and the consequent liability of his employer for the injury, so far as the question of defendant’s negligence is concerned, are established.

It is true, defendant might have insisted upon the submission of this question to the jury. But, having-failed to make such request in terms, he has waived his right in that respect (Schroff v. Bauer, 42 How. 348, and cases there cited; O’Neill v. James, 43 N. Y. 84). The court therefore was fully justified in holding defendant’s negligence established, and in submitting to the jury only the question of plaintiff’s alleged contributory negligence. Mor was there any exception taken either to such disposition or to the charge as delivered.

It should be mentioned, however, that defendant did present six requests to charge, and on the refusal of the court to charge them, except so far as they had been charged, excepted to such refusal. But the request was to charge the six propositions stated as a whole, and the exception taken to the refusal of the court so to do is a general one. Consequently, if any one of the said propositions was unsound, the exception is untenable. Mow the first and third of said propositions were covered by the charge; the second was unwarranted by the evidence, and besides, the defendant should not complain that the question of contributory negligence was left to the jury ; the fourth was contrary to the evidence, and the fifth and sixth were manifestly unsound.

The motion for a new trial on the minutes of the court was also properly denied.

There being no error, the judgment and order appealed from must be severally affirmed with costs.

Monell and Curtis, JJ., concurred.


text:
    CHARLES S. BRYCE, Plaintiff and Appellant, v. THE LORILLARD FIRE INSURANCE COMPANY, Defendant and Respondent.
    The designation of the precise place of deposit or storage of the merchandise insured in a policy, is an essential and material part of the contract. An insurance company having issued its policy, containing a precise description of the locality of deposit or storage, and the insured party having received and accepted it in that form, he cannot afterwards say that the contract was or should have been otherwise. In such a case, it will be assumed that the insured agreed to the description in the policy, and is as much bound by it as by any other part of the instrument.—See the opinion of the court, Mqnell, J., for authorities cited on this point.
    Tn an action upon a policy, where amendment to its conditions because of mutual mistake is sought (as well as recovery for a loss by fire), mere contradiction in the evidence is not conclusive that a mistalie was not mutual; but upon the weight of evidence the court decides, as a question of fact, whether or not the mistake was mutual, and by deciding in the negative, virtually determines that the contract was of the precise terms, tenor, and effect as contained in the written policy.
    Before Monell, Freedman, and Curtis, JJ.

      Decided April 5, 1873.
    Appeal from a judgment.
    The action was upon a policy of insurance to recover for a loss "by fire.
    The policy contained the following description : “Four thousand dollars on merchandise . . . contained in letter “ C,” Patterson Stores, So. Front, "below Pine Street, Philadelphia.”
    The complaint alleged that the merchandise, consisting of twenty-seven barrels of whiskey, was at the time of the issuing and delivery of the policy, and up to the time of the loss, “in letter ‘A’ of the said Patterson Stores ; ” and that, nevertheless, the same was intended, "both "by the insured and insurers, to be insured as merchandise, then kept and thereafter to be kept in said section “A” in said building, and was in fact there insured ; and the statement that the same was in section letter “ C,” in said building, as in the description clause stated, was wholly through inadvertence and mistake, and was not, in fact, according to the contract of insurance made.
    The relief sought a reformation of the policy, correcting the alleged mistake and a recovery for the loss.
    The defendant denied there was any mistake in the policy, and alleged that the insured, at the time of the insurance, represented to the defendants that the merchandise was contained in building known as letter “ C,” Patterson Stores, and that such representation was written on the face of the contract and formed a part thereof, and that such representation was false.
    The action was tried by the court without a jury.
    Brown, the agent for the insured, testified that he applied for the insurance, that he had a memorandum which he had received from the insured, and which he handed to the defendant’s agent, and from which such agent took the particulars of the insurance. The memorandum was a storage receipt as follows:
    C. Mb. 51. Warehouse Certificate. W. B. 4.
    Pg. 81.
    The Penn Warehouse Company, of Philadelphia, hereby acknowledge to have received on the 18th day of December, 1868, from John Lavens, twenty-seven barrels whiskey, and will deliver the same upon payment of storage and other charges, and the surrender of this certificate, which is transferable by delivery. Five Cent Internal Revenue Stamp Cancelled.
    It is expressly agreed that the Penn Warehouse Company have no knowledge of the contents of said packages, and are not responsible that they are as stated, and that said company shall not be liable for, or for injury to, or destruction of, said merchandise, unless caused by the gross neglect of the said company or their agents.
    By the Penn Warehouse Company.
    Philadelphia, Dec. 22d, 1868.
    :............•: (Signed) J. M. Collingwood, Treasurer.

    (Signed) W. C. Patterson, Jr.,
    for W. C. Patterson, President.

    [Memorandum: Extra Monon., Jno. Lavens, Phila., 27 bbls. whiskey.]
    Lavens the insured, and the plaintiff’s assignor of the policy, testified, that he was the owner of the whiskey, and that he had no other whiskey in the warehouse.
    The treasurer of the warehouse company, being shown the storage receipt, testified as follows:
    We had three kinds of certificates. ■ One kind was used to be given for receipts for goods in foreign bonds or under charge of the custom-house officers. Those certificates in that book were not lettered. We called it the “ A ” book, to distinguish it from these other two books entitled “B” and “0.” The “B” certificates were for such goods as had not paid the internal revenue tax. The “0” certificate book was for such goods as entered our warehouse in bond after the tax had been paid, or released from tax, or such goods as entered our warehouse free from tax.
    Q. That “ C ” refers to the book ?
    A. That “C” refers to the book from which the certificate was taken.
    Q. And the “ C ” 511

    A. “ 51 ” was the number of the certificate taken from the book.
    Q. This was taken from the stub and cut off as in a check book %

    A. Yes, sir.

      Q. Were these two letters “B” and “C” used to indicate clear whiskey and Bonded whiskey ?
    A. Yes, sir.
    Q. So this “ C” indicated clear whiskey ?
    A. Yes, sir.
    Q. That was in order to distinguish one from the other ?
    A. To distinguish the tax paid from the tax due.
    Q. Is that No. 51 in your handwriting ?
    A. The figures “5” and “1” are. The “C” is printed. The “ 51 ” is my writing.
    Q. Look at the Back of that certificate and state whether that is in your handwriting.
    A. Yes, sir, the endorsement is in my handwriting. The letter “O” and the figures “ 5” and “1” of the No. 51.
    Q. Then this means the same thing as the ££C” in the corner ?
    A. Yes, sir.
    The Building known as “Patterson Stores” was divided into eight apartments or sections of 25 By 130 feet, and designated By the letters A, B, 0, D, etc. The subdivisions were substantial Brick walls, with no communication except a shaft and a separate entrance to each from the street.
    Lancaster, the defendants’ agent, testified as follows :
    Q. Do you recollect Mr. Brown, who has testified, calling upon you to effect this insurance ?
    . A. Yes, sir.
    Q. Will you state what occurred at that time Between Mr. Brown and yourself?
    A. Mr. Brown, I think, upon the 22d day of December, Brought an order for $4,000 on whiskey in Patterson Stores “ C.”
    Q. Did he give you any memorandum at that time ?

      A. I have no recollection of taking or seeing a memorandum.
    Q. {By the Court): What did he say %

    A. I think he read from a memorandum.
    Q. What did he read ?
    A. To insure $4,000 on whiskey of Mr. John Lavens in Patterson Stores “ 0.”
    Q. He read that to you from the memorandum %

    A. Yes, sir.
    Q. You did not see that memorandum ?
    A. I have no recollection of seeing it; it was of no account; I was so familiar with the locality I would hardly require it. We had thousands of dollars at that time of insurance.
    Q. Did you know the Penn warehouse at the time of effecting this insurance ?
    A. Yes, sir.
    Q. How were the different sections separated, the one from the other ?
    A. By hrick walls extending above the roof.
    There was a 22-inch wall on each side of the sections extending beyond the roof.
    He further testified, that in making an insurance, whether he would refuse to take a risk in one section and accept a risk- in another, would depend on the amount of the insurance in any one section.
    The entire warehouse was destroyed.
    , Another witness testified that he had surveyed the building, and each section as a distinct building.
    The court found the following facts:
    I. That after the fire and loss alleged in the complaint, and before the commencement of the action, J. A. Lewis, cashier, mentioned in the policy of insurance, made by the defendant to one John Lavens, dated on the 22d day of December, 1868, and numbered 5,450, and sued on in this action, duly assigned and transferred to said John Lavens all his right, title, and interest in said policy, and all money due thereon ; and that thereafter and before the commencement of this action, the said John Lavens duly assigned and transferred to this plaintiff the said policy and the claims and demands of said Lavens upon and against the defendant by reason thereof; and that at the time of the commencement of this action, the plaintiff was the owner and holder of said policy, and all claims and demands thereon.
    On the same day Lavens employed one James Brown, an insurance broker, to effect insurance for him against loss and damage by fire, to the amount of $4,000, upon said whiskey, and handed to Brown the warehouse certificate for that purpose.
    At the time of such application Brown, apparently reading from a memorandum in his hands, instructed Lancaster to insure $4,000 on whiskey in Patterson Stores “ C.”
    Lancaster, defendant’s agent, at the time of said application, understood that the letter “ C,” mentioned in the instructions above in the 5th finding found to have been given him, referred to compartment “C” of the warehouse.
    The defendant would have insured the whiskey in section “A” as cheerfully as in section “ 0.”
    The court by its judgment refused to reform the policy, and held that the insured was not insured against the loss alleged in the complaint. The complaint was dismissed, and the plaintiff appealed.

      Mr. A. C. Fransioli and T. Darlington, for appellant.

      Mr. C. Norwood, Jr., for respondents.
   By the Court.—Monell, J.

I think the decision of the court refusing to reform the contract of insurance, was, upon the facts, clearly within the principles governing such relief.

The evidence of Brown for the plaintiff, and of Lancaster for the defendants, who alone testified to the facts relating to the place where the whiskey was stored, differ so essentially in respect to what was said, and what took place at the time the insurance was effected, that there could not have been such a mutual mistake as is required to authorize the court to correct the contract (Pennell Wilson, 2 Robt. 505; Boardman v. Davidson, 7 Abb. [N. S.] 439).

A mere contradiction in the evidence is not conclusive that a mistake was not mutual. The contradiction may be fraudulent, and made for the purpose of preventing a change in the contract, as it was executed by the parties. It therefore became a question of fact, and is to be determined upon the evidence. If it can be seen that notwithstanding the contradiction, the weight of the evidence supports the alleged mistake, it will be determined that the mistake was mutual.

In this case the court has determined, as a matter of fact, not only that the alleged mistake was not mutual, but that the contract was of the precise terms, tenor, and effect as contained in the written policy ; and we think the evidence authorized such a conclusion. There is nothing in the case or in the evidence to cast suspicion upon the credibility of Lancaster’s testimony, and the court had the right to assume that he testified truthfully. Besides, there being perhaps some conflict between him and the plaintiff’s witness Brown, we cannot, upon well-settled principles, disturb the conclusions of the court.

I think it must be conceded, that if the words descriptive of the location of the subject insured were put into the policy by or through the representation of the insured, they are in the nature of a warranty, which, under the facts in the case, would avoid the policy.

Warranties of this nature are created by the representations of the insured. To give them binding effect, they need not necessarily be fraudulent. That they are received and accepted as true by the insurers, and enter into and form a part of the contract of insurance, and after-wards are found to be untrue, is all that is required to give force and effect to them as a warranty. Nor is it of any importance that the subject of the representation cannot and did not increase the risk. It is a condition precedent, that it shall be absolutely true, and no recovery can be had if it was untrue (O’Neil v. Buffalo Ins. Co., 2 N. Y. R. 122).

The sufficiency of these descriptive words as a warranty is sustained by the following cases.

In De Hahn v. Hartley, 1 Term R. 343, the representation was, that the vessel “ sailed with fifty hands and upwards, 5 ’ and she sailed with forty-six only. Held it was a warranty, and being inserted in the policy, it must literally be complied with.

In Jennings v. Chenango Co. Ins. Co., 2 Denio, 75, in the printed application for insurance the insured stated “ the mill is bounded by space on all sides.” As this was untrue the' policy was avoided. In that case the distinction between a representation and a warranty is defined. The former is of some matter out of and collateral to the contract, and making no part of it, while the latter is of some matter appearing on its face.

In Kennedy v. St. Lawrence Ins. Co., 10 Barb. 285, the application required the insured to state the number of buildings within ten rods of that iii which the goods insured were deposited, and he omitted to state all the buildings. This defeated a recovery.

In Wall v. East River Ins. Co., 7 N. Y. R. 370, the goods (a rope-maker’s stock) were described as “contained in a brick building with tin roof, occupied as a storehouse, ” etc. It appeared that a part of the building was used for hackling hemp, and spinning it into rope yarn. It was held that the description was a warranty. See also Chase v. Hamilton Ins. Co., 20 N. Y. R. 52.

The description in the policy in this case is merchandise “contained in letter 0, Patterson Stores.” These stores consisted of eight distinct divisions or sections, and were respectively designated "by the letters A, B, C, etc., by which designations they were well known, and especially by Lancaster, by whom the risk was taken. The division walls separating the sections were of brick, some twenty-two inches in thickness ; and there was no entrance or means of access to the different compartments, except through or by a separate door to each, from the public streets. The sections, therefore, were in substance separate buildings, and the designation of the precise place "of deposit of the merchandise was as essentially a part of the contract, as if the sections had not been adjacent to each other.

The defendants having issued their policy in the form, and containing the description of locality as now appears upon its face, and the plaintiff’s assignor having received and accepted it in that form, and with those contracts, he cannot now say the contract was or should have been otherwise.

In response to an application for a policy upon a stock of goods “ such as is usually 7cept in a country store” the company sent a policy among goods “hazardous,” and “not hazardous” only, which was accepted by the insured without noticing the change.”

It was shown that1 c extra hazardous ” goods were kept in the store. In an action to recover for a loss, it was held no recovery could be had (Pindar v. Resolute Ins. Co., 48 N. Y. R. 114). The court say, of an offer to prove that the difference between the policy applied for and the policy sent was not discovered until after the fire, that it could not change the construction of the instrument. “ The failure of the insured to read the policy could not enlarge the liability which it imposed upon the defendant.”

Applying the case just cited to the one under exami'nation, it must Tbe assumed that the insured agreed to the description in the policy, and is as much bound by it as by any other part of the instrument.

But independently of this. The same evidence, which the court at Special Term found to be insufficient to establish a mistake in the contract, is used to sustain the general finding, that the description as to the location of the merchandise was furnished to the defendants by the assured. And we think the evidence sustains that finding also. Indeed, the allegations in the complaint substantially concede that the assured was responsible for such description. It is averred that at the time of the insurance, the merchandise was in letter A, of the Patterson Stores, and that “the statement that the same was in section C, was wholly through inadvertence and mistake.” •

In the view we have taken of the law of this case, the objections to the admission of evidence were properly overruled; and our decision also covers and disposes of the several exceptions to the findings of the court.

Upon the whole case we think the court below arrived at a correct conclusion, and that the judgment should be affirmed, with costs.

Freedman and Curtis, JJ., concurred.


text:
    GEORGE A. BAKER, et al., Plaintiffs and Appellants, v. HENRY WALES, Defendant and Respondent.
    Where deceit has been used for the purpose of bringing a defendant within the jurisdiction of this court, who otherwise would not be amenable thereto, the court on motion will vacate and set aside the summons.

      Appeal from order vacating and setting aside service of summons.
    The following is the opinion delivered at Special Term:
    Sedgwick, J.—The facts seem to Tbe that the plaintiffs kept in their office parcels of summons with places left "blank for defendants’ names, and amounts to be claimed. The inference is, that if a business interview were not satisfactory, service of summons would follow, after the blanks had been filled up.
    On January 19th, one of the plaintiffs wrote to defendant, who lived in Connecticut, to come to New York to settle the claim in dispute, and to answer by return mail whether he would come. He did not answer until the 26th, and did not come until 30th. Then he had an unsuccessful negotiation with plaintiff’s clerk, who served him with the summons in this case, after he had filled in the defendant’s name. This summons was dated 20th January, the day after the plaintiff’s letter to defendant to come to New York.
    There would be no doubt in the case, if it were not for the plaintiffs’ affidavits that the letter was written and the interview sought for the purpose of settlement, solely.
    But there is a conclusion consistent with this to be drawn from all the facts ; that is, that irrespective of a particular interest in this particular case, there was a general purpose to have interviews with business customers, who went there only for business purposes, and then the clerk, having blank summons in reserve, to serve them if the customer did not come to terms—so the clerk would be instructed. Under this general system of business, it would be only necessary for the plaintiffs to write a letter solely for the purpose of settlement in a particular case, and the clerk would serve the summons under the general instruction. Nevertheless, the result would be that a defendant would be deceived, and the deceit would be used for the purpose of effecting a service.
    Motion granted, with $10 costs.

      Norris & Lord, for appellants.

      Roger H. Lyon, for respondent.
   By the Court.—Freedman, J.

The court below found, upon evidence somewhat conflicting, that deceit had been used for the purpose of bringing defendant within the jurisdiction of this court. We have carefully-examined the evidence and deem it amply sufficient to sustain such finding. The service of the summons was therefore properly vacated and set aside (Carpenter v. Spooner, 2 Sands, 716).

The order must be affirmed, with costs.

Monell and Curtis, JJ., concurred.


author: By the Court.—Curtis, J.

text:
    GEORGE BEUDEL, Plaintiff, v. MATTHEW HETTRICK, Defendant.
    1. PAPvTSEESHTP.
    1. What does not constitute, inter sese.

    1. A participation in the profits of a business by a party as a compensation for his labor or service, without having any other interest or rights in it, does not make him a partner.
    2. Nominal partner not necessan'y or proper party plaintiff.

    3. Holding out one as partner who is not so in fact, effect of, in a certain case.

    1. When a third party has notice of the actual agreement existing between those who hold themselves out as partners without being such, he is bound to recognize its provisions, and if by them there is no partnership inter sese, they are no longer (after such notice) to be considered as partners so far as he is concerned.

      4. Release by one pa/rtner of partnership claim, when not valid.

    1. When the consideration is the discharge of an individual debt due the releasee from the releasor.
    Before Monell, Freedman, and Curtis, JJ.

      Decided April 5, 1873.
    Exceptions ordered to be heard at General Term.
    The action is to recover for work, labor, and materials.
    The answer states that the work was performed by the plaintiff and one Wagner, composing the firm of Beudel & Wagner, that the latter should have been joined as a plaintiff, and also that $300 had been paid on account of the claim to the firm, and that what remained due for the work was due to the firm, and not to the plaintiff.
    The plaintiff testified on the trial that the arrangement to do the work for the defendant was made by Wagner on plaintiff’s account; that Wagner was then working in his employ; that the work commenced in March, 1872 ; that they both worked at it, and that it was finished about the end of June, and amounted to $505 and some cents. The plaintiff also put in evidence an agreement made between him and Wagner, dated April 10, 1872, containing the following provisions :

      First. The said Beudel agrees to take the said Wagner into his employ, in the carpentering and building business, for the term of one year from date.

      Second. The business to be carried on under the firm name of Beudel & Wagner.

      Third. Wagner is to have no interest in the business, or in the property assets, accounts, or claims belonging to the same.

      Fourth. And the said Beudel agrees to pay the said Wagner for his services wages at the rate of a sum equal to one half of the net profits of said firm, and said wages are not to be paid, and are not to become due, until the said profits are first collected by said Beudel.
    A bill in the firm name of Beudel & Wagner was made out for this work, dated May 31st, 1872.
    The plaintiff testifies that the day Wagner left the bill with defendant, he went to defendant, who told him that he held a note for $300 against Wagner, made before plaintiff ever knew Wagner, and that he wanted to deduct it from the bill. The plaintiff told defendant he would never agree to such a settlement; that he had to pay everything, and was responsible for everything, and that a day or two after he showed the defendant this agreement between himself and Beudel. The business card was 61 Beudel & Wagner.”
    The defendant testified he employed only Wagner to do the work. That he paid him $200 on account during its progress, $100 at each time ; and that, before he commenced the work, Wagner agreed to let $100, that the defendant had loaned him previously, apply upon the work. He had heard, when he employed Wagner to do the work, that he had a partner, and he thought the receipt for the payments to Wagner on account were made out in the firm name. The receipts were not produced on the trial, or the note.
    At the conclusion of the testimony, the defendant’s counsel moved to dismiss the complaint on the grounds,

      First. That the plaintiff has proved no cause of action.

      Second. That it appeared by the evidence and by the . bill-head and card, that the work done for the defend- < ant was done under a contract between one Wagner and the defendant, and that the plaintiff had no interest therein, except as a copartner of said Wagner, who was not joined as a party plaintiff herein.

      Third. That payments had been made by the defendant to Wagner, which, under the circumstances, were operative against Wagner, either individually or as a copartner with the plaintiff; .and that whatever relation existed in fact between Wagner and the plaintiff, so far as the defendant was concerned, they were to be considered co-partners.

      Fourth. That the private arrangement between the plaintiff and Wagner could not affect the defendant, as he had no notice thereof until after the transaction complained of, and until after he had paid the $300 as sworn to by him.
    The court granted the motion, and the plaintiff excepted.
    The exceptions were ordered to be heard in the first instance at General Term, and judgment in the meanwhile suspended.

      D. M. Porter, attorney, and of counsel for plaintiff,
    urged:
    I. The agreement makes the claim sued for the plaintiff’s claim ; using the firm name of Beudel & Wagner makes Wagner liable to third persons for any debts for which Beudel & Wagner were trusted as copartners, irrespective of whether he was a partner or not, only because he held himself out as a partner, not because he was a partner. But as between the plaintiff and himself and all their debtors, and as to the property and effects, he is not a partner, but the same belong to the plaintiff alone, as no one can be injured thereby, and the agreement between the parties must be carried out (Conklin v. Barton, 43 Barb. 435; Lamb v. Grover, 47 Barb. 317; Osbrey v. Reimer, 49 Barb. 265; Ogden v. Astor, 4 Sandford, 311); and after the defendant had notice of the contract as to him, the money was the plaintiff’s sole property.
    II. If the facts are undisputed, the question is a question of law (Fellows v. Northrup, 39 N. Y. 117; Draper u. Stouvenel, 38 N. Y 219; Mason v. Lord, 40 N. Y. 477; Beck v. Sheldon, 48 N. Y. 365); if the facts are contested or conflicting, the dismissal of the complaint was erroneous, as the facts ought to have been submitted to the jury (Stone et al. v. Flower, 47 N. Y. 566). The question whether the judge erred, is presented by the exception to the nonsuit (Sheldon v. The Atlantic Fire Ins. Co., 26 N. Y. 460; Stone et al. v. Flower, supra).

    III. Even under the defendant’s answer, the application of the property of the firm cannot be given to pay the individual debt of one of the firm (Dob v. Halsey, 16 Johns. 34). One partner cannot release a debt due to the firm, even during copartnership, in consideration of a debt due to him individually (Gram et al. v. Cadwell, 5 Cowen, 489).
    IV. The evidence as to the $205.40 and interest is undisputed, and as a matter of law the plaintiff is entitled to judgment for that amount; and as to the $300, the facts are conflicting and ought to have been left to the jury; and the dismissal of the complaint ought to be set aside and a new trial granted, with costs to the plaintiff (Stone et al. v. Flower, 47 N. Y. 566; The International Bank v. Monteath, 39 N. Y. 297).

      David MeAdam, attorney, and of counsel for defendant,
    urged:
    I. The cause of action arose and was contracted for under the firm name of Beudel & Wagner. It is clear therefore, that as to third persons, Beudel and Wagner must be regarded as partners, and the payments made to either, on the faith of that relation, good payments against both.
    II. Being copartners as to the defendant who dealt with them on the faith of that relation, they are to be so regarded for all the purposes of this suit; and the defendant was entitled to have Wagner before the court as a party, and the claim was made in the answer, and the objection was never obviated by amendment, or otherwise.
    III. The private agreement between Bendel and Wagner conld not affect the defendant, who had no notice of it; and on the pleadings, the real question was whether the work was done by Bendel alone, or by the firm of Bendel & Wagner; and the evidence disclosed that it was done by the latter as a firm, and the plaintiff therefore failed in his action (Guidon v. Robson, 2 Camp. N. P. R. p. 302; Clark v. Howe, 23 Maine, 560; Radenhurst v. Bates, 3 Bing. 470; 11 Moore, 421; Davies v. Hawkins, 3 M. & S. 48; Colyer on Partnership, §§ 656, 663).
    IV. The court must remember that the contract sued on was made by Wagner, in the firm name, and for the firm, and must be sued on in the firm name (Code, § 111). Neither partner is trustee of the other, or of an express trust under § 113 of the Code, for the contract was made in the firm name as a firm.

      Y. Having made the contract in the firm name of Beudel & Wagner, a recovery in this suit would be no bar to an action by Bendel & Wagner as a firm.
    VI. The nonsuit was correct, and the plaintiff’s exceptions should be overruled, and the defendant should have judgment thereon.
   By the Court.—Curtis, J.

The evidence fails to show that the plaintiff and Wagner were actual partners. A participation in the profits of a business by a party as a compensation for his labor or services, without having any other interest or rights in it, does not make him a partner (Conklin v. Barton, 43 Barb. 435; Ogden v. Astor, 4 Sand. 311). It is clear, however, that Wagner was a nominal partner of the plaintiff, and the first question to be considered is, in whose name the action should have been brought.

In the case of Kell v. Nainby, 10 Barn. & Cres. 20, it was held, that where an. attorney carried on business under the firm of “A. & Son,” and the son was not in fact a partner, but acted as a clerk to Ms father, with a salary, that the attorney A. might maintain an action in his own name alone for business done as an attorney.

The present case seems to be analogous, and the tendency of the provision of the 111th section of the Code, directing every action to be prosecuted in the name of the real party in interest, apparently leaves little room for doubting the correctness of the proceeding in bringing this suit in the plaintiff’s name only. It appears to me that the action should have been brought as it was, in the name of the plaintiff Beudel alone, the real party in interest.

Wagner, by holding himself out as a partner, became liable to third persons who may have trusted Beudel & Wagner as a firm, but as between himself and the plaintiff Beudel, his actual rights and position are defined by the agreement, which declares that he is to have no interest in the business, property, or assets of the nominal firm. As no wrong is worked by this, it is the duty of the court to give effect to it, and after notice of this agreement, the defendant was bound to recognize its provisions, and so far as he was concerned, they were no longer to be considered as copartners.

In tMs view of the case, the plaintiff was entitled to a verdict, at least for all that portion of the claim remaining unpaid over the $300. There is conflicting evidence as to whether tMs sum of $300, or only $100 of it, were paid by the defendant to Wagner upon the pre-existing individual indebtedness of Wagner to the defendant. However that may be, a partner cannot release a debt due to the-firm, even during copartnership, in consideration of a debt due from him individually (Gram v. Cadwell, 5 Cow. 489).

A release by Wagner of a firm debt, or any part of it, due by the defendant, in consideration of a debt due from him, Wagner, individually, to the defendant, is void, and fails to sustain the defence pleaded in the answer, that the defendant paid to the firm $300 on account of the work and services, and is entitled to credit therefor. If, in the conflict of evidence, the jury had found that any part of the $300 had been paid by the defendant to the firm as alleged in the answer, such finding would be sustained by evidence that such payment was made to Wagner as one of the firm, and before notice was given the defendant of his actual position in respect to it under the agreement.

The facts in this case were so contested and conflicting in respect to Wagner’s employment by defendant, and in respect to the alleged payments on account, that they should have been left to the jury to pass upon.

As to the position taken upon the argument, but not at the trial, that some portion of this work was done before the making of the agreement, I do not very well see how the question can now be raised by the defendant in view of the allegations of his answer, that the work was done by the firm, and that whatever is due of the money is due to the firm.

The dismissal of the complaint, should be set aside, and a new trial granted, with costs to abide the event.


author: By the Court.—Freedmah, J.

text:
    JAMES CODDINGTON and ISAAC CODDINGTON, Plaintiffs and Respondents, v. JOHN B. DUNHAM and DAVID H. DUNHAM, Defendants and Appellants.
    I. Lakdlobd and Tenant.
    1. Eviction—Counter-claim—Croton water, a. Non-supply of Croton water caused by a leak in a pipe outside of the demised premises (which the landlord after notice and request neglects or refuses to remedy), whereby a water-closet and wash-basin on the demised premises became useless, and thereupon the tenant had abandoned, and still continues to abandon, the use thereof, held not to constitute cm eviction, or furnish ground for a counter-claim against the rent, there being no interference by the lessor with the supply, and no covenants in the lease on his part either, that he shall keep up a supply of water, or that he shall keep the premises in repair, or that the demised premises should remain in the same condition and state of repair as they were in at the time of the execution of the lease.
    1. So HELD where the defendants who set up the eviction and counter-claim were lessees of the second floor and its appurtenances in a certain building (the water-closet and wash-basin being part of the appurtenances, and the leak being in the pipes in other portions of the same building), and thereafter them lessor leased the whole building to the plaintiffs, subject to the lease to defendants, by which plaintiff assumed the obligations of defendants’ lease, and became entitled to the rent reserved thereby.
    3. Quiet enjoyment—covenant of. a. Such neglect and refusal as above stated does not constitute a breach of such covenant.
    3. Lessee, right of, under above circumstances, a. He has the right to enter the portion of building, outside of his own premises, where the leak occurred, and repair the pipes.
    H. “ Subject of action” as used in § 150 of the Code—Counter-claim.
    1. Definition.

      “ a. The words “ subject of the action,” as there used, are equivalent to “the facts constituting plaintiff’s cause of action.”
    Before Monell, Freedman, and Curtis, JJ.

      Decided April 5, 1873.
    Appeal from judgment on demurrer to answer.
    . The complaint was for one quarter’s rent of the second floor and its appurtenances, No. 17 Union Square, in the city of New York, from 1st August to the 1st November, 1872, amounting to $875. The premises were leased to defendants and Edgar A. Dunham, who died before the commencement of this action, from the 1st May, 1870, to the 1st May, 1873, by one Nathan Clark, and the whole building was by him subsequently leased to the plaintiffs, subject to the lease to these defendants and Edgar A. Dunham; the plaintiffs, hy the lease to them, assumed the obligations of said lease to defendants and Edgar A. Dunham, and became entitled to the rent thereby reserved.
    A copy of the lease was annexed to the complaint and made a part thereof.
    The answer expressly admitted’ the making of the lease of the second floor as alleged in the complaint; also the death of Edgar A. Dunham, and the lease of the building by Nathan Clark to the plaintiffs as averred in the complaint. It also set up in bar of the rent, an eviction from part of the demised premises by reason of plaintiff’s failure to keep up a supply of Croton water; and finally contained a counter-claim to the extent of three hundred dollars for damages alleged to have been sustained in consequence of plaintiff’s failure as aforesaid.
    The plaintiffs demurred to the answer upon the ground that it constituted neither a defence nor a counter-claim to the claim of the plaintiffs in this action.
    The court at Special Term sustained the demurrer.
    The appeal is from the judgment entered upon the order of the Special Term.

      Ten Broeck & Van Orden, for appellants,
    urged :
    That the plaintiffs, by the lease, were obliged to furnish a supply of water during the entire continuance of the lease, as an appurtenance to the second floor leased, and that, without the supply of water, the water-closet and wash-basin, and the apartment in which they were located, were rendered useless to the defendants.
    That the supply of water was a material inducement to the hiring of the second floor, No. 17 Union Square, in connection with the apartment containing the water-closet and wash-basin, was directly incident and necessary for the enjoyment of the second floor, and the defendants not only agreed to pay rent on account of the same, but the Croton water rent in' addition; and without the supply, the defendants, it is not reasonable to suppose, would have hired the premises.
    The obligation to supply the water was unconditional without provision against contingencies, and the plaintiffs cannot be excused by setting up the pretence that it was a matter of repairs to the pipes outside, which they had not agreed to make, and against which they had made no provision.
    That neither the pipes, nor the premises through which they ran, were under the control of the defendants to enable them to make the repairs to the pipes. That they would have been trespassers in attempting’ to make repairs or to meddle with the subject of the supply of water.
    That the plaintiffs being obliged to furnish a supply of water for the water-closet and wash-basin, this obligation necessarily involved the duty of seeing that the means of supply were in proper condition.
    The plaintiffs did not and could not deliver possession of the supply of water or the means of supply at the time of the making of the lease of the second floor, No. 17 Union Square. They delivered possession of the second floor and the apartment containing the water-closet and wash-basin and the water pipes in the same. The supply of water, including the means of conveyance outside, was a matter resting in executory contract of a continuing nature entirely within the control of the plaintiffs and not of the defendants, and with which contract the plaintiffs were bound to comply.
    If the plaintiffs intended to qualify the obligation to supply the water, they should have provided in the lease for the contingency of the means of supply being out of order, and have provided the defendants with the right and power to make any necessary repairs and to control the supply which was essential to protect the defendants in the enjoyment of a material portion of the demised premises.

      Ordinarily a lessee is possessed of the entire premises leased when the lease is made, and clothed with the right to make repairs during the term, for his own protection, in case the lesser has not agreed to make repairs ; but in this case the plaintiffs were not able to give the possession of all they leased, and consequently undertook as a matter of contract of an executory character to provide unconditionally what was within their control, and cannot be excused except by the act of God, the intervention of law, or the act of the lessee (see 44 Barbour, 54).
    Whether the plaintiffs shut off the water, or the act was done by other parties, is immaterial to the defendants.
    After notice at least the plaintiffs were bound to see that the supply was furnished and the means in order for that purpose. It was not in the power of the defendants to do more than give notice to the plaintiffs.
    If the wrong of shutting off the water was perpetrated by parties other than the plaintiffs, after notice, they adopted the wrong committed by the neglect and refusal to supply the water, and connived at its perpetration. Its correction was within their control or should be, and they are responsible for the wrong.
    An agreement in a lease to supply water or steam-power for the purposes of the lease, is a material element of the lease, and cannot be avoided by the pretence that the lessor has not agreed to repair the means in case the supply fails for that reason. It works an eviction (see 47 N. York, 680).
    The failure to supply the water necessary for the water-closet and wash-basin forced the defendants to abandon the same and the apartment in which they were located, as entirely useless to them, and this worked an eviction from a material and necessary portion of the demised premises, which occurred prior to the rent becoming due (see N. Y. p. 680).
    An eviction can as well be accomplished by an act of omission of duty or obligation, as by an act of commission. After notice a party is held responsible for the acts of others, which are subject to his control, on the ground of connivance at those acts (see 4 Comstock, 217; 1 Sandford S. C. R. p. 260).
    An eviction from a portion of the premises demised, suspends, the rent as to the whole premises demised until the part is restored (1 Kernan, p. 216; 18 N. Y. 529; 14 Howard P. R. 155; 3 Kernan, 151; 4 Comstock, 217; 1 Sandford, 260).
    An eviction by the lessor is a breach of the covenant of -quiet enjoyment (see 1 Kernan, p. 216).
    As to second branch of the. defence, by way of counter-claim. In case it shall be held there is no eviction, defendants can recover their damages by reason of the failure to supply the water after notice, in violation of the lease to the defendants. It arises directly out of the contract on which the rent is claimed, and under the broad provisions of the Code to prevent circuity of action, the damages can be recouped in abatement on the rent (38 N. Y. p. 83; 2 E. D. Smith, 130; 4 E. D. Smith, 339; 35 Barbour, 523; see Code, sec. 150; 35 N. Y, p. 369; 20 N. Y. p. 281).

      H. K. Goddington, of counsel for respondents,
    urged :
    I. The allegations in the answer clearly are not sufficient to constitute an eviction. The utmost they can be held to allege is a neglect on the part of the plaintiffs to repair. While perhaps if there were any agreement to repair this might be held to affect the beneficial enjoyment of the premises, it clearly cannot be held to be an eviction, which can only arise where some affirmative act is committed by the landlord, either an actual physical ouster, or else the 11 commission of acts so illegal and monstrous in their character as to amount to an actual physical ouster” (Taylor’s Landlord and Tenant, § 379, and cases cited note; Bouvier's Law Dict. p. 543, Eviction, and cases there cited; Ogilvie v. Hull, 5 Hill, 52; Edgerton v. Page, 20 N. Y. 281; Lounsbery v. Snyder, 31 N. Y. 516; Johnson v. Oppenheim, 43 How Pr. 433 (Superior Court, General Term, March, 1872), and cases there cited.
    II. And especially can there be no eviction here since the defendants occupied the premises demised for the whole period for which rent is demanded, and still occupy them. The answer it is true alleges that about one month prior to November 1st, the defendants “abandoned the possession and use of the water-closet and wash-basin,” alleged in the answer to be “ an appurtenance ” of the premises. But it is well settled that unless there be actual physical ouster from the whole or some part of the premises, no act of the landlord affecting the enjoyment of the premises or of any part, can be held an eviction or a bar to the rent unless the tenant abandon possession of the whole premises (Taylor's Landlord and Tenant, § 379-381, and cases cited note; Edgerton v. Page, 20 N. Y 281; Mortimer v. Brunner, 6 Bosw. 653; Johnson v. Oppenheim, 43 How. Pr. 433).
    III. And, again, the answer simply says the defendants “abandoned the possession and use of the water-closet ;” it does not allege that the plaintiffs were notified of the abandonment, that the defendants have in any way relinquished its exclusive possession, or that anything at all was done by the defendants except simply not using it.
    IV. ÍTeither is the second defence, the counter-claim of three hundred dollars damages, any more tenable.
    1. bi o trespass nor any wrongful act of the plaintiffs is alleged, but it is simply alleged that they neglected to repair, which they were not bound to do by any agreement in the lease or outside of it.
    V. The allegations in the answer, that the pipes passed through other portions of the premises leased by the .plaintiffs to other parties, etc., do not alter the well-settled rule that a lessor is not bound to repair except by express agreement.
    1. The fact of these pipes passing through other portions of the premises, gives the defendants the right to enter on said premises and repair the pipes themselves whenever necessary (Lampan v. Milks, 21 N. Y. 508, and cases cited; Promfret v. Ricroft, 1 Saunders, 322).
    It is not alleged that the defendants were refused or obstructed in any way in this right to enter and repair.
    VI. The answer also alleges that by the terms of the lease the defendants agreed to pay the Avater tax on the part of the premises demised to them; but it can hardly be argued that this imposed a liability on the plaintiffs to keep the pipes in repair, any more than the agreement of the defendants to pay the rent of the premises imposed a liability upon the plaintiffs for repairs generally.
    VII. The answer alleges also a covenant for quiet enjoyment. Mo breach of such covenant is however alleged, nor do any of the facts alléged amount to such a breach, this covenant relating only to the title, and not to the actual possession or undisturbed enjoyment (Howard v. Doolittle, 3 Duer, 464; Doupe v. Grenin, 1 Sweeny, 25; Edgerton v. Page, 20 N. Y. 281; Johnson v. Oppenheim, 43 How. Pr. 433).
    Vin. In any view of the case, therefore, even if the plaintiffs can in any manner, by any forced construction of the law or facts, be held to be responsible for this alleged damage, it clearly cannot be held to constitute a counter-claim in an action of covenant for rent, since it neither arises out of contract nor “ out of the contract or transaction set forth in the complaint as the foundation of plaintiffs’ claim nor “is it connected with the subject of the action,” since the alleged damages even if real do not arise from the breach of any covenant in the lease (section 150, Code Edgerton Page, 20 N. Y. 281; Drake v. Cockcroft, 4 E. D. Smith, 34).

      1. The cases cited lay down the rule, that unless the wrongful act or negligence of the landlord amounts to a breach of the contract of letting, they are not connected with the subject of the action, and cannot be recouped in an action of covenant for the rent.

      2. It must be remembered that this is not an action for use and occupation, but an action of covenant, and that the value of the premises is entirely immaterial.
    ■ 3. The case differs radically from those where the lessor deprives the lessee of some thing expressly leased him, as in letting a room, expressly contracting in the lease to supply steam-power; or "a mill, expressly contracting in the lease to supply water-power, etc.
    IX. The judgment at Special Term should therefore be affirmed, with costs.
   By the Court.—Freedmah, J.

The lease in question demised the second floor of the building at the northwest corner of Union square and Fifteenth street, in the city of New York, with the appurtenances, which, however, are not described. It contains a covenant for quiet enjoyment, which relates only to the lessors’ title, and means that the lessees shall not be evicted by a paramount title, but which does not secure undisturbed enjoyment where there is no eviction from the premises. It does not contain any warranty on the part of the lessors that the demised premises shall continue to remain in the same condition and state of repair that they were in at the time of the execution of the instrument. Nor does it contain an obligation on the part of the lessors to keep the premises in repair. On the part of the lessees, however, it contains a covenant that they will pay the regular annual rent or charge, which is, or may be, assessed or imposed according to law upon the said premises for the Croton water, on or before the first day of August in each year during the term, and that, if not so paid, the same shall be added to the quarter’s rent then dne. A copy of this lease is annexed to the complaint and forms part of the same ; and defendants’ answer expressly admits the execution of the lease as alleged in the complaint.

The defendants, however, further allege that among the appurtenances leased, as aforesaid, was a water-closet and wash-basin and a continuous supply of Croton water for the same; that the said water was supplied through pipes running through other portions of the building leased by plaintiffs to other parties, and that in consequence of the occurrence of a leak in the pipes outside of defendants’ premises, but in the same building, the water was shut off on the 8th day of July, 1872, of which plaintiffs were immediately notified; that after-wards plaintiffs were requested to cause a supply of water to be furnished, but that plaintiffs neglected and refused to repair the said pipes or to furnish a supply of water ; that defendants thereupon abandoned the said water-closet and wash-basin; that they have been evicted, and are still held evicted, from the same, and that by reason of such eviction the rent is barred.

The answer finally sets up that defendants have suffered damages and inconvenience ; and that, in case the facts pleaded as an eviction should not be deemed sufficient in law to constitute an eviction, the defendants, upon the said facts, claim to recover, as a counter-claim, the sum of $300 damages for the breach of the agreement to furnish a supply of water as an appurtenance.

Upon examination, we are satisfied that neither the defence pleaded nor the counter-claim can be upheld. The Croton water is furnished by the corporation of the city of Uew York to applicants on payment of an annual tax or charge; and where neither the flow of water, nor the pipes appertaining to the tenement through which it flows, are interfered with by the lessor, the question, whether a failure to insure a supply of water amounts to an eviction, must depend upon the necessity of the supply for the purposes of the tenement, and the lessor’s liability to keep it up ; and that liability can exist only where the lessor has obligated himself so to do. No such obligation exists in this case, nor can any be implied. The utmost the answer can be held to allege is a neglect on the part of the lessors to repair, and on this point the rule is well settled that a lessor is not bound to repair except by express agreement. Defendants had a right to enter the portion of the building outside of' their own premises, where the leak occurred, and to repair the pipes (Lampman v. Milks, 21 JY. Y. 508, and cases there cited); and it is not alleged that they were refused such right, or in any way obstructed in the exercise thereof. Nor is it alleged that in consequence of the leak the water was shut off by the lessors. For all that appears it may have been done by some other tenant without the knowledge and consent of the lessors. The answer, therefore, shows neither an interference by the lessors nor an obligation on their part to insure a continuous and uninterrupted supply of water, and consequently does not show facts sufficient to constitute an eviction. In Johnson v. Oppenheim, 34 N. Y. Superior Court Reports, p. 416, the adjudications of this State bearing upon the subject of interference by landlords with tenants were arranged into several classes, and the remedy peculiar to each class pointed out; but this case cannot be brought within any of the classes there referred to.

There being no obligation in the lease to keep up a supply of Croton water, it further follows that the counter-claim, which is based upon such assumed obligation, must also fail. For even if otherwise good, it could be sustained as a counter-claim in this action, only upon proof that it arose out of the contract or transaction set forth in the complaint, or that it is connected with the subject of the action (Code, § 150). The words “ subject of the action,” as there used, are equivalent to “the facts constituting plaintiff’s cánse of action” (Chamboret v. Cagney, 2 Sweeny, 378; S. C. 41 How. 125; 10 Abb. N. S. 31).

The judgment must be affirmed with costs, with leave to defendants to file and serve an amended answer in twenty days, upon payment of all costs since commencement of action.

Monell and Curtis, JJ., concurred.