text:
    FREDERICK ZOPFI Respondent, v. THOMAS K. SMITH, Appellant.

      JSmdence — admissibility of collateral cireumstcmees, as showing the motive of a charge ' of seduction and affecting the credibility of the witness — delay in disclosing the fact of improper intm'course. .

    In an action to recover damages sustained by reason of the seduction of the plaintiff’s daughter by the defendant, in whose employment the daughter was, it appeared that no pregnancy followed, no sickness which required a physician, and no loss of time occurred, nor was the plaintiff subjected to any expense by reason of the alleged wrongful acts of the defendant; that the plaintiff’s daughter left the house of the defendant, and the next day commenced service in the employment of another person from whom she received the same or greater compensation than she had been receiving from the defendant; that the plaintiff, having made a claim against the defendant for his daughter’s services the defendant claimed a reduction therefrom for certain articles broken by the daughter, and for certain things which it was alleged that she had in her possession belonging to the defendant’s wife and daughter. This claim on the part of the defendant was communicated to the daughter, who had made no disclosures prior thereto of the alleged wrongful acts of the defendant. When informed that she had been charged with stealing things at the defendant’s she spoke to her mother of the alleged intercourse between herself and the defendant.
    Upon the trial of the action the defendant’s counsel asked the daughter the following question: “Let me ask you in regard to the things which you say your father told you you was charged with stealing; did you have some of their things in your trunk? A. No, sir;” and thereupon the court observed: “ I won’t try that question in this case; ” to which an exception was taken by the defendant.

      Meld, that this ruling was error, as a full disclosure of all the circumstances pertaining to these matters should have been permitted.
    That if the daughter had been guilty of the offense of stealing, proof thereof would probably impair her testimony and might have affected her standing before the jury as a witness.
    That, as it appeared by her own testimony that she did not make known to her parents the charge against the defendant until after she had learned that she was accused of taking things from the defendant or his family, it was proper that all the circumstances should have been presented to the jury that they might the more accurately judge of her credibility as a witness.
    In an action for seduction the omission to make a prompt disclosure of the improper intercourse militates strongly against the testimony of the female.
    Appeal by tbe defendant from a judgment entered, in favor of tbe plaintiff, in tbe office of tbe clerk of tbe county of Onondaga on tbe 29tb day of January, 1889, for the sum of $400 damages, besides costs; and also from an order, entered in said clerk’s office on tbe 24th day of January, 1889, denying defendant’s motion for a new trial on tbe minutes.
    Tbe action was tried before tbe court and a jury at tbe Onondaga Circuit, and a verdict was rendered in favor of tbe plaintiff for tbe sum of $400.
    Tbe action was brought to recover damages for loss of services of plaintiff’s daughter Sybil by reason of her seduction by tbe defendant.
    Defendant’s answer admits that Sybil ¡Sopfi was the servant and infant daughter of tbe plaintiff.

      Drummond & Nellis, for the appellant.

      George Barrow, for the respondent.
   Hardin, P. J.:

Sybil was fourteen years of age in February, 1886, and on the 5th of September, 1886, she was hired by the plaintiff as a domestic to the defendant, and entered into his service as such domestic in his family upon his farm in the town of Sennett, Cayuga county, where she remained in service until the 10th day of July, 1887. In her. testimony she states that the defendant had sexual intercourse with her in April, 1887, about the twenty-second day, and on several other occasions at the residence of the defendant. The defendant was a married man, having a wife and daughter and five sons, and the wife of the defendant was at home on most, it not all, of the occasions referred to by Sybil when the intercourse took place. No pregnancy followed; no sickness which required a physician, and no loss of time occurred, nor was the plaintiff subjected to any expense by reason of the alleged wrongful acts of the defendant. From the house of the defendant she was taken by her father on the 10th of July, 1887, and the next day she commenced service in the employ of Yan Camp, where she was to receive the same or greater compensation than she had been receiving at the hand of the defendant. When she left the defendant’s employment there was no settlement had for her wages, and in November, 1887, the plaintiff lodged with Mr. Milford, an attorney at Skaneateles, a claim for the balance of Sybil’s services; and when the defendant was called upon by the attorney to adjust the same, he claimed a reduction for certain articles broken by Sybil, and for certain things it was alleged she had in her possession belonging to defendant’s wife and daughter. The attorney communicated to the plaintiff the claim for reduction made by the defendant, and he communicated the same to the daughter Sybil. She had made no disclosure to her parents prior to learning of the claims made by the defendant for an offset to her father’s demand for her wages. Sybil testifies, viz.: “ I first told my mother in 1888; not until then; I guess it must have been about in October; about October, 1888; I had not told my father then about it; my mother told my father; before I told my mother in 18881 had not learned that I had been accused of doing some wrong things at Mr. Smith’s; not till one time I went home when my father told me about it, and I told him it was no such thing; that, I guess, must have been in October, 1888; I don’t remember whether it was about the time I told my mother; I told my mother ; I think that my father told first that I was charged with doing something wrong at Mr. Smith’s before I told my mother; I did not tell my father or mother of what had happened at Mr. Smith’s until they told me: my father toldme that they charged me with stealing things at Mr. Smith’s; I was then at our house; I was not then living at Mr. Yan Camp’s; I was at home on a visit; I was working at Mr. Yan Camp’s; I told it the same day he told me I was charged with steabmg ; I did not tell rmj father • I told my mother / it was the same day that my father told me that I was charged with steabmg.” Sybil was in the habit of visiting her parents while she was in the service of Smith about as often as once a month. After Sybil had been cross-examined in respect to the circumstances. of the alleged intercourse, the counsel for the defendant propounded to her the following question, viz;: “ Let me ask you in regard to the things which you say your father told you you was charged with stealing. Did you have some of their things in your trunk i ” “ A. No sir.” Thereupon the court observed: “ I won’t try that question in this'case. ” And thereupon the plaintiff’s counsel said, viz.: I am willing to have it tried here if they want to; ” thereupon the court remarked I am not willing to try it,” and exceptions were taken for the defendant. The observations and ruling of the court prevented the defendant from fully cross-examining Sybil in respect to the things which she was charged with taking from the wife and daughter of the defendant. 'While she was allowed to state that she did not have any of those things in her trunk, a full development of all the circumstances pertaining to those things was not permitted. If she had taken things from the defendant’s wife and daughter, as the question implied, she had been guilty of an offense which would have, if developed, probably impaired her testimony and might have affected her standing before the jury as a witness. Inasmuch as it appeared by her testimony that she had not made this grave charge against the defendant known to her parents until after she learned that she was accused of taking things from the defendant or his family, it was quite important that all the circumstances relating to such things should have been given in the presence of the jury that they might the more accurately judge of her credibility as a witness. "We think, under the circumstances, that the learned trial judge too quickly shut down the gate, and cut off the defendant’s opportunity to develop all the facts and circumstances relating to the things which the defendant had charged her with having taken from his family. "We think this is a case where we ought not to assume that the defendant was not prejudiced by the ruling. The issue which was finally submitted to the jury was a very important one to the plaintiff and his family, and defendant and his family. There was little or no direct evidence bearing upon the issue, except such as was given in behalf of the plaintiff by Sybil, and the testimony of the defendant, who stoutly and stubbornly disputed the allegation made against him by Sybil. If she was treated by the defendant in the manner in which she has testified upon the trial of this action, it is very strange that she did not disclose the treatment to her parents long before she was accused of taking things from the wife and daughter of the defendant. According to her own story, she allowed eighteen months to elapse between the time of the first intercourse and the disclosure thereof to her parents. We have not overlooked the circumstance, that she claims to have made some disclosure to her sisters at an earlier period; although if she did, it is very strange that they did not communicate the fact to the parents.

In dealing with the long delay to disclose such treatment, courts have frequently observed that the omission to make prompt disclosure militates largely against the credibility of the testimony of a female. In People v. O'Sullivan (104 N. Y., 486), the court says: “The outrage in such a case upon a virtuous female is so great that there is a natural presumption that at the first suitable opportunity she would make disclosure of it; and she would be so far discredited if she did not make the disclosure for the purpose of confirming her evidence. Where she is a witness, such disclosure may be received. But where the disclosure is not recent, as soon as suitable opportunity is furnished, the reason for receiving it in evidence does not exist, and the principle justifying its reception does not apply. In 1 Hale’s Pleas of the Crown (632), it is said that the £ complainant must make fresh discovery and pursuit of the offense and offender, otherwise it carries a presumption that her suit is but malicious and feigned.’ In 1 East’s Pleas of the Crown (M5), it is said that the evidence of the complainant cis confirmed if she presently discovered the offense and made pursuit for the offender,’ and that £ her evidence is discredited if she concealed the injury for any considerable time after she had opportunity to complain; ’ and the same language is substantially embodied in á Blackstone’s Commentaries (21é).”

As we have already seen, Sybil had ample opportunity to make disclosure to her parents, and her delay to make the same for eighteen months militates very strongly against her testimony; the circumstance that she makes the disclosure after being charged with taking things from the family of the defendant, is calculated to give rise to a distrust of her testimony in respect to the charges she makes against the defendant. And while we are, not prepared to say that, whether or not she should be believed, was not a question within the province of the jury, even after the contradiction of her testimony by the defendant (Sargent v.-, 5 Cow., 106), we are prepared to say that there should have been a full and exhaustive examination of her upon the .subject of the taking of things from the family of the defendant before the jury should have been allowed to weigh' and believe her testimony against the evidence contradicting the . same given by the defendant, upon the serious and important issue presented in this case.

The learned trial judge regarded the issue as a grave one between the p'arties, and he stated in his instruction to the jury as follows: “You are to determine whether a man, occupying the position of the defendant in this case, with a family of children about him, his own daughter appearing here upon the stand of about the age of Sybil, as a witness in his behalf; whether a man with these domestic jewels in his household, would be likely to have rifled her of the only one that was valuable to his servant then in his employ. I say, gentlemen, it is for you to determine which of these people tell the truth; and as you shall determine that matter, by your verdict announce the judgment that you shall reach.”

After a careful consideration of all the salient features of this case, as presented by the evidence on either side, we are constrained to say that the ruling to which we have adverted may have been very prejudicial to the defendant, we, therefore, think it our duty to award a new trial.

Martin and Merwin, JJ., concurred.

Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide event.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    MATTHIAS H. ARNOT and Others, Respondents, v. CHARLES L. BINGHAM, Receiver of the First National Bank of Dansville, New York, Appellant, Impleaded, etc.

      Title to negotiable paper sent to a bank for collection — right of its owner to recover the proceeds of the note from a receiver of the bank collecting it.

    A note, made by a corporation doing business at Dansville, was made payable at the First National Bank of that place, at which the corporation kept an ordinary open account. The owners of the note sent it to the Dansville Bank for collection, indorsed: “For collection, account of Chemung National Bank, Elmira, N. Y., M. H. Arnot, Prest.,” accompanied by a letter stating that it was inclosed for collection.
    The note was received by the Dansville Bank before its maturity, and when it matured the maker’s check was drawn on that bank for the amount due thereon, delivered to the bank, and the note was thereupon canceled and surrendered up to the maker, and its check was charged against its account, which was good for much more than the amount of the check, the Dansville Bank having, at that time, current funds more than the amount of the check. The bank continued to conduct its business for four or five days and then failed.

      Held, that the owners of the note were entitled to collect from the receiver of the bank the avails thereof so collected.
    That, after the transaction above stated, relating to the payment of the note, the relation between the former owners of the note and the bank was that of bailor and bailee, or trustee and cestui que tmst, so that the fund received by the receiver was, in fact, the property of the owners of the note, or so far impressed with a trust in their favor as to give them an equitable title thereto.
    Appeal by the defendant Charles L. Bingham, as receiver of the Eirst National Bank of Dansville, N. Y., from a judgment, entered in the office of the clerk of the county of Chemung on the 2d day of August, 1889, after a trial at the Chemung Circuit before the court without a jury.

      The action was brought to recover the amount of a promissory note which had been sent for collection to the First National Bank of Dansville, a corporation created under the laws of the United States and transacting a general banking business.

      Marsenus H. Briggs, for the appellant.

      Frederick Collwi, for the respondents.
   Martin, J.:

The plaintiffs were copartners, carrying on a general banking business at Elmira, N. Y., under the firm name of the Chemung Canal Bank. The First National Bank of Dansville, N. Y., was a banking corporation duly organized under the laws of the United States, and doing business at Dansville, N. Y.

Prior to August, 1887, a note, made by a corporation doing business at Dansville, for $450, due August 19, 1887, was owned by the plaintiffs. It was payable at the First National Bank of Dansville. The maker kept an ordinary open account with that bank. The plaintiffs sent the note to the Dansville bank for collection. It was indorsed “ For collection, account of Chemung Canal Bank, Elmira, N. Y. M. H. Árnot, Prest.” The letter accompanying it was as follows:

“ Leonard Kuhn, Cashier t
“Your favor of the — inst. is received. I inclose for collection, Jackson, August 19th, $450.
“Respectfully, yours,
“M. II. ARNOT,
“President.”

The note bore the signature of the maker, “ By James H. Jackson, President.” It was received by the Dansville bank before its maturity. When it matured, or soon after, the maker’s check was drawn on that bank for the amount due on such note, delivered to the bank, and the note was thereupon canceled and surrendered up to the maker. The check was charged to the account of the maker, which was good for much more than the amount of the check. When the note was thus paid, the Dansville bank had several hundred dollars in currency in its banking house, and more than the amount of such check. It continued business for four or five days and then failed, closed its doors, and did no business afterwards. After the payment of such note, and up to the time of such failure, the bank continued to transact its ordinary business, receiving and paying out "currency over its counter to its customers. It had on hand in currency on each day after such note was'paid an amount sufficient to pay the amount of said check until the day before its failure, when it had $384.47. During that time it discounted a note for "W. H. McCullum for forty dollars and forty-two cents, for which it advanced cash. The defendant Bingham was subsequently appointed receiver of the Dansville bank, and received $189.09 in money that was in the hands of the bank at the time of its failure, and the McCullum note as assets belonging to the bank. The McCullum note was afterwards paid to the receiver.

Before action the plaintiffs demanded of the bank and the receiver the avails of the $450 note so collected, which demand was refused. This action was then commenced and was tried before the court without a jury. The coxzrt awarded a judgment against the receiver, adjudging that the plaintiffs were the owners of $229.51 of the moneys z’eceived by him (being the $189.09 received by him in cash, and forty dollars and forty-two cents received on the McCullum note), and that they wez’e entitled to the possession thereof, with interest; and directed that such sum should be paid to the plaintiffs, with costs. From the judgment entered upon this decision tlze defendant Bingham appeals.

It is contended by the appellant that the court was without jurisdiction in this action ; that the provisions of the federal law for tlze establishment of national banks and for winding up their affairs provide the ozzly remedies that are available to the creditors of such a bank; azzd that the remedies thus provided az*e exclusive of any othez’. If it be true that the relation between the plaintiffs and the defendant bank was that of debtor and creditor, then we think the contention of the appellant must be sustained; but, if, on the other hand, the relation was that of bailor and bailee, or trustee and cesbui que trust, so that the fund received by the receiver was, in fact, the property of the plaintiffs, or was so far impressed with a trust in their favor as to give them aiz equitable title thereto, we think the rule would be otherwise. (Corn Exchange Bank of Chicago v. Blye, 101 N. Y., 303; Craigie v. Smith, 14 Abb. N. C., 409; Cragie v. Hadley, 99 N. Y., 131.)

Thus we are led to the consideration of the question whether the fund in the hands of the receiver was, in fact, the property of the plaintiffs, or so far impressed with a trust in their favor as to enable them to recover it as equitable owners thereof. The note in question belonged to the plaintiffs. It was forwarded to the Dansville bank and received by it for collection only. There was no agreement between the parties by which any title passed to the bank. The relation between the parties was that of bailor and bailee, and not that of debtor and creditor. Title to commercial paper received for collection by a bank and forwarded to its correspondent in the usual course of business, without an express agreement in reference thereto, does not vest in such correspondent, even if he has remitted on general account in anticipation of collection. Title passes only by a contract to that effect, to be expressly proved or inferred from an unequivocal course of dealing. (Nat. Park Bank v. Seaboard Bank, 114 N. Y., 34, and cases cited; Nat. Butchers and Drovers' Bank v. Hubbell, 27 N. Y. St. Rep., 396.)

If the receipt by the Dansville Bank of the maker’s check, the cancellation and surrender of the note and deducting the amount of the check from the maker’s account was, in effect, a collection of such check from the general fund then in the hands of the bank, so that it was bound to hold the money for the plaintiffs and apply it to the purpose for which it was collected, then we think that it was properly held that the funds remaining in the hands of the bank when it failed, as between the plaintiffs and the bank, or between the plaintiffs and the receiver, equitably belonged to the plaintiffs, as well as the amount collected on the McCullum note.

In People v. City Bank of Rochester (96 N. Y., 32) the defendant, a bank having discounted certain notes for one of its customers, who was also a depositor with it, the customer wishing to anticipate payment, gave its checks to the bank for the amount of its notes, which were received and charged in the _ customer’s account and entry made in the books of the bank to the effect that the notes were paid. The customer at the time supposed that the defendant held the notes, but they had, in fact, been previously sold. Before the notes became due the defendant failed. In an action brought by the attorney-general, in the name of the people, a receiver was appointed. It was held in that case that an order requiring the receiver to pay the notes out of the funds in his hands, was properly. granted; that the transaction between the bank and its customer was not in their relation of debtor and creditor, nor in that of bank and depositor, but by it a trust was created, the violation of which constituted a fraud by which the bank could not profit, and to the benefit of which the receiver was not entitled.

In Matter of Cavin v. Gleason (105 N. Y., 256) in proceedings to compel an assignee, for the benefit of creditors, to pay the claim of the petitioners out of the funds in his hands, it appeared that the petitioners, just before the assignment, placed a fund in the hands of the assignor to be invested in a mortgage. Instead of doing this, he used the entire fund, except thirty dollars, in paying his personal debts, and soon thereafter made the assignment, the thirty dollars coming to the hands of the assignee. It was held that the petitioners were only entitled to a preference to that amount. In delivering the opinion in that case Andrews, J., said: If it appears that trust property specifically belonging to the trust is included in the assets, the court, doubtless, may order it to be restored to the trust. So, also, if it appears that trust property has been wrongfully converted by the trustee, and constitutes, although in a changed form, a part of the assets, it would seem to be equitable and in accordance with equitable principles, that the things into which the trust property has been changed should, if required, be set apart for the trust, or if separation is impossible, that priority of lien should be adjudged in favor of the trust estate for the value of the trust property, or funds or proceeds of the trust property, entering into and constituting a part of the assets. This rule simply asserts the right of the true owner to his own property.”

In Atkinson v. Rochester Printing Company (114 N. Y., 168), where deposits by the defendant were received by a bank after it was known to its officers that it was insolvent, Follett, Oh. J., in referring to that subject, said: “ As between the defendant and the bank it acquired no title to the notes and money deposited, and they might have been recovered from the bank or its receiver if they could have been identified or their avails traced into any fund or security.” (See, also, Cutler v. American Exch. Nat. Bank, 113 N. Y., 593.)

In Ex parte Dale & Company (11 Ch. Div., 772) a banking company were employed as agents to collect money and to remit it to their employers. The bank received the money in cash, placed it with other cash of the bank, and informed their employers that the money had been remitted; but before the money was actually remitted the bank went into liquidation, and it was held that the money was a part of the general, assets of the bank, and that the employers of the bank were not entitled to be paid in priority to the other creditors. This case was, however, disapproved of by the Court of Appeals In re Hallett's Estate (13 Ch. Div., 696), and must; we think, be regarded as overruled. It was held in the latter case that if money held by a person in a fiduciary character, though not as trustee, has been paid by him to his account at his bankers, the person for whom he held the money can follow it, and has a charge on the balance in the banker’s hands; and, also, that if a person who1 holds money as a trustee or in a fiduciary character pays it to his account at his bankers, and mixes it with his own money, and afterwards draws out sums by checks in the ordinary manner, the rule in Clayton’s case, attributing the first drawings out to the first payments in, does not apply; and that the drawer must be taken to have drawn out his own money in preference to the trust money. "While it must be admitted that the question whether the fund recovered in this action was, in fact, the property of the plaintiffs, or so far impressed with a trust in their favor as to constitute them equitable owners thereof, is not free from doubt, still we are inclined to the opinion that the doctrine of the Bank of Rochester Case justified the trial court in holding that the transaction between the maker of the note, and the bank in delivering and receiving the maker’s check in payment of the note, canceling it and charging the check to the maker’s account, was, in fact, a collection of the amount from the general fund in the hands of the bank, and a special appropriation of that amount to the payment of the note, and that the other authorities cited warranted the court in holding that the amount thus collected or appropriated to that purpose belonged to the plaintiffs, although mingled with other moneys owned by the bank; and hence that, as between the plaintiffs and the receiver, the title to the money thus dedicated to the payment of the note remained in the plaintiffs. If the plaintiffs had title to a part of the funds in the hands of the bank, the amount paid out should be held to have been paid from the portion belonging to the bank (In re Hallett, supra), and the remainder of the fund which came into the hands of the receiver should be treated as belonging to the plaintiffs.

The judgment should be affirmed, with costs.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs.


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    MERRITT KNIGHT Appellant, v. FOWLER WILSON, Jr., Respondent.

      Justice of the peace — presumption, on appeal, as to his homing waited one hour after the time specified in the summons.

    Where it is claimed that a justice of the peace has erred in not waiting one hour after the time specified in the summons for its return, as required by section 2898 of the Code of Civil Procedure, it must be made to appear affirmatively by the justice’s return that the justice did not wait the required time, and the respondent is not bound to show affirmatively by such return that this provision of the statute has been complied with.

      Stafford v. Williams (4 Denio, 182) followed.
    Appeal by the plaintiff, upon questions of law and upon the facts, to the General Term, from a judgment of the County Court of the county of Oneida, entered in the office of the clerk of that county on the 6th day of August, 1889.

      M. N. Willson, for the appellant.

      Willson & Powers, for the respondent.
   Martin, J.:

This is an appeal from a judgment of the Oneida County Court reversing a judgment rendered by a justice of the peace. The judgment was reversed on the sole ground that the justice erred in not ■waiting one hour after the time specified in the summons for its return, as required by section 2893 of the Code of Civil Procedure.

The justice’s return, upon which the appeal was heard, states:

At the .time and place mentioned in the summons for the return thereof I called the names of the parties. The plaintiff appeared. Tbe defendant did not appear. The plaintiff complains orally that the defendant is indebted,” etc. There was no further statement in the return bearing upon the question of whether the justice waited an hour as required by the statute. . The learned county judge was of the opinion that the return should have shown affirmatively that the justice waited the required time, and that, in the absence of any statement in the return showing that fact, it was to be presumed that the justice did not comply with the statute, and on that ground the judgment was reversed.

“ It has also been the uniform practice of the courts, in reviewing the proceedings had before justices of the peace, to regard them with marked indulgence and liberality in the furtherance of the ends of justice, and, if possible, sustain them by every reasonable and warrantable intendment.” (Schoonmaker v. Spencer, 54 N. Y., 370; Beecher v. Kendall, 14 Hun, 329.)

In Stafford v. Williams (4 Denio, 182), it was held that on a certiorari to review a justice’s judgment; where the defendant did not appear before the justice, it will be intended that he waited an hour after the time mentioned in the summons before proceeding with the cause, unless the contrary expressly appear. In delivering the opinion in that case, Bronson, Ch. J., said: “ The legal presumption is in favor of the proper discharge of official duty, and we must intend .that the proceedings were regular until the contrary plainly appears.”

We think the doctrine of the cases cited-is decisive of the question involved in this case. There is nothing in .the return to show that the justice did not wait the required time, and we cannot think that the respondent was bound to show affirmatively that this provision of the statute was complied with, but are of the opinion that the burden of showing error in that respect was upon the appellant, who should have obtained an amended return, showing plainly that the justice failed to wait an hour, if such was the fact.

Judgment of the County Court reversed, with costs, and judgment of the Justice’s Court affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgment of the County Court of Oneida county, reversing a justice’s judgment, reversed, and the justice’s judgment affirmed.


text:
    MATTHIAS H. ARNOT, MARIANNA A. OGDEN and FANNY A. HAVEN, Respondents, v. SAMUEL F. WRIGHT, Appellant.

      Affidavit stating two fads in the alternative alleges neither — proceedings supplementary to execution.

    An affidavit, upon which an application was made for the examination of a judgment-debtor in proceedings supplementary to execution, alleged that an execution against the property of the judgment-debtor had been issued out of a court of record “ and delivered to the sheriff of Chemung county, where the said judgment-debtor then resided, and yet resides, or has, at the lime of the commencement of these proceedings, an office for the regular transaction of business in person.”

      Reid, that the statement in the affidavit was in the alternative, and hence alleged neither one fact nor the other, and was insufficient to justify the granting of an order for the examination of the judgment-debtor.
    Appeal by tbe defendant, a judgment-debtor in tbe above-entitled proceedings, from an order granted at a Special Term of tbe Supreme Court beld in tbe city of Elmira on tbe 21st day of September, 1889, and entered in tbe office of tbe clerk of tbe county of Chemung on the 21th day of September, 1889, denying tbe judgment-debtor’s motion to set aside an order, in proceedings supplementary to execution, granted by tbe judge bolding said Special Term.

      James Bacon, for tbe appellant.

      Frederick Collin, for tbe respondents.
   Martin, J.:

Tbe only question we need consider on this appeal is tbe sufficiency of tbe affidavit upon which tbe order to examine tbe judgment-debtor was granted.

Tbe Code of Civil Procedure provides that, after tbe return, unsatisfied, of an execution against property, issued either to tbe sheriff of tbe county where (1) the judgment-debtor has at tbe time of tbe commencement of the special proceedings a place for tbe regular transaction of business in person, or (2), where he resides, if then a resident of tbe State, or (3), if not then a resident of the State, to the sheriff of the county where the judgment-róll is filed, upon proof of the facts by affidavit, the judgment-creditor is entitled to an order requiring the debtor to be examined. (Code of Civ. Pro., §§ 2435, 2458.) The affidavit in this case was to the effect that an execution against the property of the judgment-debtor was issued out of a court of record and delivered to the sheriff of Chemung county, where the said judgment-debtor then resided, and yet resides, or has at the time of the commencement of these proceedings an office for the regnlar transaction of business in person.”

The claimed defect in this affidavit is, that it neither shows that the execution was issued to the sheriff of a county where the debtor had a place for the regular transaction of business in person, nor that it was issued to the sheriff of the county where the debtor resided. The statement in the affidavit was in the alternative, and hence alleged neither one fact nor the other. Such an allegation in an indictment would be bad for, uncertainty. (1 Arch. Crim. Pr. and PL, 283.) It would also be insufficient in a pleading in a civil action for the same reason. (Moak’s Yan Santv. PL, 271.)

The Code of 1848 (§ 249) provided that, “ upon an affidavit that any person has property of the judgment-debtor, or is indebted to him, the judge may, by an order, require such person to appear at a specified time and place and be examined concerning the same.” In Lee v. Heirberger (1 Code R., 38) an application was made under this section to examine a third person upon an affidavit that the person sought to be examined “ has property for the judgment-debtor, or is indebted to him,” and the court held that the application could not be granted; that the affidavit was not sufficient; that it should have been positive, either that the person had property of the judgment-debtor or that he was indebted to the judgment-debtor, or that he had property and was indebted to the judgment-debtor, but that it could not be put in the alternative. In Collins v. Beebe (7 N. Y. Suppl., 442), substantially the same question arose, and the General Term of the first department held that an affidavit that a third person “ has property of the judgment-debtor exceeding-ten dollars in value, or is indebted to the judgment-debtor in a sum exceeding ten dollars,” is in the alternative, and alleges neither the one nor the other fact necessary to obtain an order for examination in supplementary proceedings. In Riddle’s Supplementary Proceedings (p. 29, 1st and 2d ed.; p. 94, 3d ed.)it is said : “It will not do to allege residence or place of business and non-residence in the alternative ; as, for instance, that the debtor resided in the county when the execution was issued, or was a non-resident of the State. But residence and place of business or non-residence and place of business may be jointly alleged.”

"We are of the opinion, both upon reason and authority, that an affidavit for an order to examine a judgment-debtor should contain a clear statement that the judgment-debtor is a resident of the county to which the execution was issued, if such be the ground upon which the application is made. If he has a place for the transaction of business in person in the county, and the application is upon that ground, that fact should he positively alleged. If ho both reside and have such place of business in the county to which the execution was issued, that fact may be properly alleged in the conjunctive, but that a disjunctive statement that the judgment-debtor is a resident of or has a place for the transaction of business in the county is not proper. We think the affidavit upon which the order to examino the appellant was granted was insufficient, and that the Special Term erred in denying the appellant’s motion to set such order aside.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Hardin, P. J., and Merwin, J., concurred.

So ordered.


text:
    JOSEPH J. TOMPKINS, as Administrator, etc., Respondent, v. MARTHA A. RICE, Appellant, Impleaded with Others.

      Husband and wife — transfer by a husband, before letters of administration are issued, of property of his deceased wife — administration upon the estate of a deceased wife is not necessary to vest the title to her personal property in her husband.

    In an action to determine the rights of certain parties to an amount, secured to be paid by a bond and mortgage, which had been paid into court, the fund was claimed by the plaintiff, as the administrator of Adelia Tompkins, who, died without descendants, and was at the time of her death the owner of the bond and mortgage. The defendant claimed title to the fund by virtue of a transfer of the bond and mortgage to her made by the plaintiff after the death of Adelia Tompkins, and before letters of administration had been granted upon her estate.
    The plaintiff was the husband of the decedent, and it appeared took possession of the bond and mortgage before his appointment as administrator; and while in possession, and exercising exclusive ownership over the same, transferred and set over said bond and mortgage to the defendant.

      Held, that the plaintiff, as the husband of his deceased wife, in default of any other disposition of her estate by her, became vested with the title to the personal property, of which she died the owner, by virtue of his marital rights, and that administration upon her estate was not necessary in order to vest the title thereto in him.
    Appeal by the defendant Martha A. Rice, upon questions of law and upon the facts, from a final judgment, entered in the office of the clerk of Schuyler county on the 25th day of June, 1889, after a trial at a Special and Equity Term in Schuyler county, at which, the court adjudged that the sum of IJóSAO, deposited in this action, belonged to and was the property of the plaintiff.

      Lymcm J. Baskin, for the appellant.

      John J. Van Allen, for the respondent.
   Martin, J.:

This action was brought to foreclose a mortgage. The title to the bond and mortgage and the debt secured thereby was claimed by the plaintiff, and also by the defendant Martha A. Rice. Such proceedings were thereupon had that the defendants, who were liable to pay the mortgage debt, were permitted to deposit the amount unpaid thereon with the court, and the mortgage was duly satisfied and discharged. The appellant was then made a party to the action, and the action was transformed into an action to determine the rights of the appellant and respondent to the fund in the hands of the court. The respondent claimed the fund as the administrator of Adelia Tompkins, deceased. The appellant claimed that she was entitled to it under and by virtue of a transfer of said bond and mortgage, to her by the respondent, after the death of his intestate and before letters of administration were granted.

The respondent, by his amended complaint, alleged that he was entitled to said fund as the administrator of Adelia Tompkins, who was the owner thereof at the time of her decease. The appellant, by answer, in substance alleged, that Adelia Tompkins died intestate, leaving no descendants ; that her personal estate on her death vested in the respondent, who was her husband; that he took possession thereof before his appointment as administrator, and became possessed and was the owner of such personal estate, subject only to the payment of the debts of the intestate; that afterwards, and while the respondent was in possession and exercising exclusive ownership of such personal estate, he, with full knowledge of his legal rights as surviving husband of the decedent and owner of the bond and mortgage in suit, transferred, set over and delivered said bond and mortgage to the appellant for her own use and benefit, releasing to her full ownership and control forever; that he reserved sufficient other funds of said estate to pay all the debts, thereby intending to vest and vesting in the appellant full ownership of said bond and mortgage, free and clear from all estate, debts or claims whatsoever; and that she was the absolute owner of said bond and mortgage and of the avails and proceeds thereof.

With the issue thus joined pending between the parties, the action was placed upon the Special Term calendar for trial. When reached the respondent moved for judgment on the ground that there was no defense set up in the defendant’s answer. It was then conceded that there had been no settlement of the decedent’s estate in the Surrogate’s Court, and that there had been no advertisement for claims to be presented. The court thereupon held that the question of the title to this fund could not be litigated in this action, and that the plaintiff, as administrator, was entitled, upon the answer, to the possession of the fund in question, to be accounted for as assets of that estate, and ordered judgment on the pleading.

No evidence was introduced by either party. The court subsequently made and signed a decision in writing, wherein he found as a fact that such bond and mortgage, being a part of the assets of the estate of Adelia Tompkins, to which said administrator, the respondent, was entitled, as such, the same belonged to him in his representative capacity, and held, as a matter of law, that the appellant had no right, title or interest in said fund or any part thereof as against the plaintiff in this action, as administrator of Adelia Tompkins, deceased, the same being a part of the assets belonging to said estate, and awarded judgment against the appellant accordingly, with costs. To such rulings and findings the appellant duly excepted. In pursuance of this decision the respondent entered judgment herein, whereby it was, among other things, adjudged and decreed “ that the said defendant Martha A. Rice has no right, title or interest in or to the same (the fund in question), and has no right, title or interest in or to the mortgage this suit was originally brought to foreclose, but that the same belongs to the said plaintiff, as such administrator, and as a jiortion of the assets of Adelia Tompkins, deceased, exclusively.”

In determining the validity of the judgment in this case we must assume the facts as admitted and alleged by the appellant. Hence it must be admitted, for the purposes of this appeal, that the plaintiff was the husband of his intestate; that she made no disposition of her personal estate; that she left no descendants; that her personal estate came to the possession of the plaintiff, who exercised exclusive ownership over the same; that, with full knowledge of his rights, he transferred the bond and mortgage in question to the appellant for her own use and benefit; that sufficient of the-estate of his intestate was reserved by him to pay all her debts.

In Ransom v. Nichols (22 N. Y., 110), it was held, that where a married woman died intestate, the title to her separate - personal estate vested in her surviving husband, and could not be affected by the granting of administration upon her estate to any other person, and that the statutes of 1848 and 1849 in respect to the rights of married women did not change the rule at common law in that respect. In that case it was said: “ It seems very clear that Lyman Nichols, after the death of his wife (if not before), was entitled to the possession of the note and all the property in it passed to him, and that, consequently, he had the right to receive payment upon and discharge the same; ” and the court quoted with approval what was said in Valence v. Bausch (17 How., 243): It is presumed that a voluntary payment to him, and discharge by him, of a note or bond belonging to the wife’s estate, without or before administration, would be perfectly good.”

In Ryder v. Hulse (24 N. Y., 372), it was held that at common law a husband is entitled to the personal property and dioses in action of his wife, and they are vested in him at her death, whether reduced to possession or not, in virtue of his marital right, and not of his right to administration.

In Barnes v. Underwood (47 N. Y., 351), it was held that at common law the husband had the right of administration, and through administration he acquired the title to the personal property of his deceased wife not reduced to possession during coverture, subject only to the payment of her debts; that those rights were preserved by the Revised Statutes (2 R. S., 75, § 29; p 98, § 79), and have not been affected, by the statutes of 1848 and 1849 in relation to married women; that those statutes gave the wife control of her separate estate, with power of testamentary disposition during her life, but if she died intestate, the rights of her husband as her successor were not affected; that the amendment of section 79 of the statute of distribution in 1867 did not affect the right of the husband to administration and enjoyment of his deceased wife’s personal estate where she died leaving no descendants.

In Olmsted v. Keyes (85 N. Y., 602), Judge Earl, in delivering the opinion of the court in that case, said: All the choses of the wife not reduced to possession during the joint-lives, by the common law, pass to the husband upon her death ■ — ■ all without any exception— and there is no authority to the contrary; and this is true, whether such choses are then jDayable or are mere reversionary or contingent interests payable at a future day, or mere possibilities. lie may then release them or talte payment of them without administration, if he can get payment. If administration is needed to reduce the choses to possession, he is entitled to it, and if there are no debts, the administration is solely for his benefit. If, after his wife’s death, the husband does not release, assign or reduce to possession her choses in action during his lifetime, then after his death his personal representatives are entitled to administration upon them for the benefit of his estate as part of his assets.”

In Robins v. McClure (100 N., Y., 328), the defendant’s wife died leaving no descendants, but leaving a will by -which she gave to her husband one-half of her residuary estate, the other half to her brother and sister. The husband was appointed executor, and qualified. The brother died before the testatrix. The residuary estate consisted solely of personal property. In an action for the construction of the will it was held that the husband, by virtue of his marital rights, was entitled to- that portion of the estate bequeathed to the brother, which bequest lapsed by reason of his death before that of the testatrix, and that letters of administration were not necessary to protect the husband’s rights. It was also held that the rule of the common law recognized by the Revised Statutes (2 R. S., 75, §§ 29, 30; Id., 98, § 79), which authorizes a husband to hold the property of his deceased wife, not only by virtue of administration, but also by virtue of his marital rights, so far as it applies to the case of a wife dying intestate, without leaving descendants, has not been changed by the various acts in relation to married women. (Chap. 200, Laws 1848; chap. 375, Laws 1849; chap. 90, Laws 1860; chap. 172, Laws 1862; chap. 782, Laws 1867.)

In the case last cited the case of Barnes v. Underwood (supra) was considered, and the court held that, so far as the Barnes Case was to be regarded as deciding that a husband became entitled to the estate of his deceased wife solely by virtue of his right to administer her estate, it was contrary to the doctrine of the other authorities upon the question, and that that case should not be regarded as overruling such authorities, but that the former authorities should be regarded as the settled law of this State until expressly overruled. Thus the Barnes Case must be regarded as overruled so far as it is in conflict with the doctrine that a husband may hold the personal property of his wife, by virtue of his marital rights, without administration, when she dies intestate without leaving descendants. (See, also, Fry v. Smith, 10 Abb. N. C., 224; Westervelt v. Gregg, 12 N. Y., 202.)

Applying the principle of these authorities to the facts in this case, and we are unable to discover any ground upon which this judgment can be upheld, it is quite manifest that the plaintiff, as the husband of his deceased wife, became vested with the title to the personal property of which she died the owner, including the bond and mortgage in question, under and by virtue of his marital rights, and that administration was not necessary to vest such title in him. He being the owner of this bond and mortgage, and also having sufficient other property with which to pay the debts of his intestate, transferred the bond and mortgage to the appellant and delivered them to her. That he had the power and authority to make this transfer seems to be well established by the authorities cited. Having made such transfer, he cannot now claim the avails of such bond and mortgage simply because he had not been appointed administrator at that time. There is nothing in the case to show that the rights of any person, other than the appellant and respondent, are involved, hence it is unnecessary to consider the question whether such transfer was valid as to the creditors (if any) of Mrs. Tompkins. The question here is between the appellant and respondent as to their rights under the allegations of the defendant’s answer.

We think the learned judge at Special Term erred in holding that the plaintiff was entitled to the possession of the fund in question, and that the appellant had no right, title or interest in such fund, or any part thereof, as against the plaintiff, and in directing a judgment accordingly, with costs.

It follows that the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Hardin, P. J., concurred; Merwin, J., concurred in result.

Judgment reversed on the exceptions and a new trial ordered, with costs to abide event


author: Maktin, J.:

text:
    BYRON B. TAGGART, WILLIAM W. TAGGART and MIRANDA BOTHWELL, Appellants, v. WILLIAM W. HERRICK, HENRY W. AYERS and HUMPHREY SISSON, Respondents.

      Assignment for creditors — the requirement that it designate the residence and business of the debtor is only di/reetory.

    The provisions of chapter 294 of the Laws of 1888, directing that an assignment for the benefit of creditors of a debtor should state the residence, kind of business carried on by such debtor at the time, the place where conducted, and if in a city, the street and number, are directory merely; and a failure on the part of the assignor to fully comply therewith does not render the assignment void.
    Appeal by the plaintiffs from a judgment, entered in the office of the clerk of the county of Jefferson on the 2d day of October, 1889.
    The action was brought to obtain an adjudication that an assignment for the benefit of creditors, made by the firm of Herrick &

    Ayers, was void, and that the same be set aside and vacated, and that the plaintiffs be adjudged to be paid out of the moneys and funds that came into the hands of the assignee named therein under the alleged assignment, the amount of a judgment recovered by them against the assignors. The opinion of Mr. Justice Williams at Special Term, which was concurred in by the General Term, is printed as a note hereto.

      Hannibal Smith, for tbe appellants.

      Watson M. Rogers, for tbe respondents.

       Jefferson Special Term, tried April 19, 1889; decided September 9, 1889.
      Mullin v. Sisson. Taggart v. Sisson.

      Williams, J. These are actions in the nature of “ judgment-creditor’s action” brought to set aside a general assignment made by defendants Herrick & Ayers to defendant Sisson.
      The facts are not in dispute. There are two questions of law involved :
      1. Whether, upon the conceded facts, the assignment is invalid, and should be set aside.
      2. Whether an action to set aside the assignment for the invalidity alleged can be maintained by Mullin as receiver.
      The plaintiffs in both actions are interested to have the assignment set aside. The plaintiffs in the second action, who are also defendants in the first action, are interested in defeating plaintiff in (he first action, so as to gain a priority in lien upon the fund for the payment of their judgment.
      It is claimed the assignment is invalid by reason of the omission to state therein, as required by section 2, chapter 291, Laws of-1888:
      1. The kind of business carried on by the assignor at the time of making the assignment.
      2. The place at which such business shall then be conducted, and if in a city, the street and number thereof.
      The statute provides that these things shall be specifically stated in the assignment, and they were not in this assignment. The object of the statute was evidently to provide for an easy and certain identification of the parties making the assignment, and their particular business and location.. In this case no injury was or could be done to any creditor by the omission of these statements from the assignment, because the city of Watertown was small, the assignors were well known, and-their business and location had been the same for many years, and were well known to the public. The question is, however, the same, very likely, as it would be if the assignors had been doing business but a few months, and in the city of New Y ork; and the question is, whether an assignment, in order to be valid at all, must contain these statements.
      The question is new, is not well settled, and it may be difficult to say just what the courts will, on appeal, finally decide. I can only express my opinion and await the judgment of more learned courts who may hereafter consider the question.
      In Bloomingdale v. Seligman (19 N. Y. St. Rep., 64), a case decided at Special Term, New York Common Pleas, in December, 1888, Bookstaver, J., held, the omission to state in the assignment the residence or kind of business carried on by the debtors at the time of making the assignment, or the place, or street or number at which the business was then conducted, rendered an assignment made in New York city invalid. The court in that case cited and relied upon Hardmann v. Bowen (89 N. Y., 196); Britton v. Lorenz (45 id., 51); Fairchild, v. Gwynne (16 Abb. Pr., 23); Rennie v. Bean (24 Hun, 123); Warner v. Jaffray (96 N. Y., 253).
      The cases in 39 New York and 45 New York and 16 Abbott’s Practice were cases holding an assignment invalid, unless acknowledged by the assignor after the passage of the act of 1860, providing such acknowledgment should be made and certificate thereof indorsed upon the assignment before delivery. In such a case there could be no delivery until these provisions were complied with, and the assignment could not take effect until delivered. The courts held these provisions mandatory, and not directory merely.
      The case in 24 Hun held that under the statute of 18’/7, providing the assent of the assignee, subscribed and acknowledged by him, should appear in writing embraced in or at the end of, or indorsed upon, the assignment before the same should be recorded, an assignment merely subscribed and acknowledged by assignee, but containing no express words of assent, was invalid.
      The contrary, however, was held in Scott v. Mills (45 Hun, 263), where it was said the form of the assignment and its subscription and acknowledgment by the assignee amounted to an assent. Both cases, however, seem to hold that the assent is essential to the validity of the assignment. Whether this is strictly true may be doubted, because the statute does not require the assent before delivery, but only before recording, and it is held in 96 New York, above, and again in Nicoll v. Spowers (105 N. Y., 1), that an assignment takes effect upon delivery, and not upon being recorded, and that all things required to be done after execution and delivery are directory merely, and a failure to comply with those provisions of the statute does not invalidate the assignment.
      The case in 96 New York recognizes the rule that the assignment must be acknowledged before delivery, in order to its validity, then holds as above stated, as to requirements to be subsequently performed, and that it takes effect from its delivery.
      It will be seen, therefore, that all these cases, as to acknowledgment by the assignor, merely held that the execution of the assignment is not complete until this requirement is complied with; they do not hold that the assignment is rendered invalid by reason of any omission in the body of the assignment itself.
      It is, however, provided in this statute, that these things here omitted shall be put into the body of the assignment before the same is delivered, nor is it provided the assignment shall be invalid unless these things are embodied in the assignment; and the claim made by the assignee is that they are non-essential, and the statute as to these things is merely directory, is not mandatory. Judge Bookstaver refers incidentally to a decision that had been made in the Supreme Court in which a different result had been arrived at, and the case thus referred to is evidently that of Victor v. Seligman, the papers in which were submitted to me on the argument of the case.
      These cases apparently relate to the same assignment made by Seligman, May & Co. to Richard S. Newcombe; both decisions were made in December,. 1888, and the one in Supreme Court by Judge Andrews, and an examination of the brief in the Supreme Court case shows that the same questions were raised as in the case in the Common Pleas. Both were demurrers to the complaints in an action to set aside the assignment, because of the omission from the assignment of the matters required by the amendment of 1888.
      In the Common Pleas case the demurrer was overruled, the assignment being held invalid. In the Supreme Court case the demurrer was sustained, which involved holding the assignment valid.
      No opinion was written by Judge Andrews, but the brief for the assignee, among other things, argues these requirements of the statute are not mandatory, hut directory merely, basing the argument largely upon the language of the court in the case cited by Judge Bookstaver, in 39 New York, above, viz.:
      “ The argument of appellant’s counsel is, that this statute is merely directory, and leaves the former common law in full force, and this argument is sought to be maintained upon some quite elementary principles in the construction of statutes. We are referred to Dwarns, Sedgwick and Smith on the construction of statutes for the doctrine that an affirmative statute does not take away the common law. This rule cannot he denied or questioned at this day, for it has been too well and too long established. The language of Lord Coke, that a statute made in the affirmative, without any negative, expressed or implied, does not take away the common law, is now elementary (citing a large number of cases). * * * The fundamental mistake with the appellant’s argument is in treating this as merely an affirmative declaratory statute. It is no such thing. It introduces a new law in regard to assignments. It requires every assignment, whether of real or personal property, to be acknowledged before an officer, authorized to take acknowledgements, before delivery. * * * The language is peremptory. Every assignment, etc., shall be acknowledged before delivery; * * * no assignment can be delivered without being acknowledged * * * that a negative of the right to make an assignment in any other manner is implied in the very language of the statute, for when the statute declares, in terms, that every assignment shall he acknowledged before delivery, it, by necessary implication, provides that no assignment shall be delivered without acknowledgment. It clearly denies and withholds the right which before existed to dispense with the acknowledgment. ”
      So that, in the case being considered, the Court of Appeals held there was a negative implied in the statute, and the case was taken out of the general rule that a purely affirmative statute was directory merely. Judge Bookstavbr thought this doctrine applicable to these provisions of the statute of 1888, as well as to the provision for the acknowledgment of assignments. Judge Andrews evidently did not think so. The provisions of the statute of 1888 are, it seems to me, merely affirmative. There seems to me to be no negative implied, as there certainly is none expressed. In order that these requirements should be regarded as mandatory, we must be able to say the meaning of the statute is that no assignment shall be made, or shall be valid, or shall be delivered unless these provisions are contained in it. The statute does not say so in express words, as it might well have done, if such was the intention of the legislature, and considering the real object and design of these provisions to provide for an easy and certain identification of the parties making the assignment.
      I can perceive no reason why we should say the legislature intended, in this language used, to imply a negative, that no assignment should be made or be valid, or be delivered, unless these requirements should first be complied' with; the present act does not provide, as did the act of 1860, that the acknowledgment must be made before delivery, but it was held in 96 New York, above, that the acknowledgment was a part of the execution of the assignment, and the provision relating thereto was mandatory, while all that was required after the execution and delivery was directory merely; the provisions here in question do not relate to the execution, but to the contents of the assignment, and it seems to me are not, therefore, mandatory as the requirement as to acknowledgment is. These suggestions lead to the conclusion that the assignment attacked in these cases is not void for the reason assigned, but is a valid assignment and should be upheld. The complaints in both actions will, therefore, be dismissed; but, inasmuch as the question involved is new, and not free from doubt, no costs will be allowed to defendants against plaintiffs or either of them.

   Maktin, J.:

Tbe general assignment act of 1S77 was amended by chapter 294, Laws 1888, so as to provide that in an assignment for tbe benefit of tbe creditors of a debtor tlie residence, kind of business carried on by sucli debtor at the time', the place where conducted, and, if in a city, the street and number, should be specifically stated. "Whether this provision is mandatory and a full compliance with it, a condition precedent to a valid assignment, or whether it is only directory, is the only question presented by this appeal.

The intention of the legislature is the cardinal consideration in the construction of statutes; and whether a particular provision is manda, tory or directory is to be determined from the language used and the purpose in view. ( Wuesthoff v. Germania Life Ins. Co., 107 N. Y., 590.) In view of the language of this amendment and its purpose, can it be held that the statute is mandatory ? The apparent purpose of the statute was to provide a means whereby the debtor might be easily indentified. It has been said that the real object of this amendment was to enable certain commercial agencies to follow insolvent debtors and identify them by their place of residence and business as well as by their names. But be that as it may, still the purpose of the amendment was the indentification of the assignor. Tliat being tbe purpose of the statute, was a literal compliance with its requirements a condition precedent to a valid assignment ? If so, then a slight error or insufficiency of description of the debtor’s business, the place where conducted, or where he resided, would render an otherwise valid assignment void. This is an affirmative statute. It contains no express words of negation, and we think none are to be implied.

We do not think the language and purpose of this amendment indicate a legislative intent to make its provisions mandatory, but are of the opinion that the statute should be regarded as merely directory, and that the failure of the assignor to fully comply with its provisions did not render the assignment void. We deem a further examination of this question wholly unnecessary, as we concur in the opinion of Mr. Justice Williams in the case where the question and the authorities bearing upon it were fully considered.

Judgment affirmed, with costs, on opinion of Williams, J., delivered at Special Term.

Hardin, P. J., and Merwin, J., concurred.

So ordered.


author: Martin, J.: Hardin, P. J.:

text:
    FANNIE MARTIN, Respondent, v. THE EQUITABLE ACCIDENT ASSOCIATION OF BINGHAMTON, New York, Appellant.

      Accident insurance policy — payable by an assessment upon the members of the company — necessity in an action thereon of an allegation and, proof as to what sum the assessment, if made, would produce.

    An action was brought upon a certificate of membership issued by an equitable accident association, which provided that in case of the death of the assured the asssociation would pay the principal sum, not exceeding $1,000, realized upon an assessment made in accordance with the provisions of its by-laws.
    The by-laws provided that the association would pay to the person named in the application for the insurance “ the amount collected from all the members of the association at the time of accident, upon an assessment of one dollar upon each half-rate member, and, in addition, in case of full-rate certificate, two dollars, and of a half-rate certificate, one dollar upon each full-rate member. ”

      On the trial no proof was given to show what amount would have been realized if the defendant had made the assessment provided for by the certificate; nor was there any allegation in the complaint to that effect.

      Held, that the plaintiff was properly nonsuited.
    Appeal by the defendant from a judgment, entered in the office of tlie clerk of the county of Oswego on the 13th day of August, 1889, after a trial at the Oswego Circuit before the court and a jury, which latter rendered a verdict in favor of the plaintiff for the sum of $1,044.60; upon the coming in of which a motion was made upon the minutes of the justice presiding at the trial, upon the' exceptions taken upon the trial, and on the grounds that the verdict was contrary to law and contrary to the evidence, and against the weight of evidence for a new trial, which motion was denied.
    This action was founded on a certificate of membership issued by the defendant, which was in the nature of a policy of insurance against accident. It was issued to John TI. Martin, and provided that in case of his death the defendant would pay the plaintiff. the principal sum, not exceeding one thousand dollars, realized upon an assessment made in accordance with the provisions of section 1 of article 4 of the defendant’s by-laws, which provided that the defendant shall pay the person named in the application “the amount collected from all the members of the association at the time of accident, upon an assessment of one dollar upon each half rate member, and in addition, in case of full rate certificate, two dollars, and of a half rate certificate, one dollar, upon each full-rate member.”
    On the trial ho proof was given showing or tending to show what amount would have been realized if the defendant had made the assessment provided for by its certificate. Indeed, there was neither allegation nor proof that any sum whatever would have been realized from an assessment by the defendant according to the provisions of its policy. At the close of the evidence the defendant moved for a nonsuit on the ground that the plaintiff could not maintain this form of action on the policy, and also on the ground that the plaintiff had not “ made out a cause of action.” This motion was denied, and the defendant excepted.
    The case was then submitted to the jury, and it rendered a verdict for the plaintiff for $1,044.66. A motion.was thereupon made by the defendant on the minutes of the trial judge to set aside the verdict, and for a new trial upon the exceptions, and because the verdict was contrary to the evidence and contrary to law. This motion was also denied.
    The defendant appealed from the judgment entered on such verdict, and also from the order denying the defendant’s motion for a new trial.

      David Murray, for the appellant.

      Mead, Stranahan c& Spencer, for the respondent.
   Martin, J.:

The only question we deem it necessary to consider is, whether the recovery in this action can be upheld when there was neither allegation nor proof that the plaintiff sustained any damage because of the defendant’s failure to perform its contract. The defendant’s contract was that it would pay the amount realized from an assessment of its members, not exceeding $1,000. Thus the measure of the defendant’s liability was the sum which would have been realized from such an assessment, if made, unless it exceeded such limitation. With no allegation or proof of the amount which would have been realized upon such an assessment, or that any amount would have been realized, it is difficult to see how the verdict in this case can be sustained. While it has been held in a number of cases that an action at law can be maintained upon such a contract, still the same cases are to the effect that in such an action, before the plaintiff can recover, he must prove facts sufficient to enable the jury to compute the amount due thereon. (O’Brien v. Home Ben,. Soc. of N. Y., 21 N. Y. St. Rep., 640; affirmed, 27 id., 326; S. C., 11 id., 810; Freeman, v. Nat. Ben. Soc.. 42 Hun, 253; Fulmer v. Un. Mut. Assn., 12 N. Y. St. Rep., 347; Hankinson v. Page, 12 Civ. Pro. Rep., 279; Peck v. Equitable Acc. Assn. of Binghamton, N. Y., 52 Hun, 255; Fitzgerald v. Equitable R. F. L. Assn., 24 N. Y. St. Rep., 494; Darrow v. The Family Fund Soc., 27 id., 476.) As there was no such proof in this case, we think the verdict was not sustained by the evidence, and that the court erred in denying the defendant’s motion for a new trial.

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

Merwin, J., concurred.

Hardin, P. J.:

It is suggested that the ground upon which the opinion of Martin, J., proceeds for a reversal was not sufficiently taken at the trial. There was no allegation in the complaint of the amount which would have been realized upon an assessment, or that an assessment would have yielded any amount. There was no proof given upon that subject by the plaintiff. In the fifth answer of the defendant it was stated: That the plaintiff has no right to have or maintain this action.” At the close of the evidence, in stating the grounds for a motion for a nonsuit, the defendant took the position, viz.: That in this case, from the proofs presented, there can be no recovery ”; also, the further position that “ the plaintiff cannot maintain this form of action on the policy.” In response' to the last ground the court inquired, u Is there any such question raised by your pleadings ? ” and the counsel for the defendant replied affirmatively and referred to the fifth answer. The court made an observation to the effect that he was of the opinion that the answer was inadequate, and thereupon ruled and decided, viz.: I will not nonsuit on that ground ? ” Thereafter counsel for the defendant stated, viz.: “ I wish to make the general motion on the ground that the plaintiff has not made out a cause of action.” The motion was denied and the defendant excepted. In delivering the charge to the jury the court observed: “ The amount of your verdict, if for the plaintiff, will be $1,0M.66.” Doubtless an exception would have been taken to that branch of the charge if the court had not, when the motion for a nonsuit was under consideration, made the rulings which have been quoted. Upon the record, as made up, it seems the attention of the court was called to the question, and apparently was understood by the court and its; ruling made in the face of the objection taken in the double language used by the appellant, first: “ That the plaintiff cannot maintain this form of action on the policy; ” and, secondly: “ That the plaintiff has not made out a cause of action.”

In Freeman v. The National Benefit Society (42 Hun, 253), proof was given tliat an assessment upon the members liable to contribute to the death fund would have produced a fund sufficient to pay the plaintiffs claim.” No such proof was given in this case. 'The stipulation in the policy in this case was to pay to the plaintiff the principal sum, not exceeding $1,000, realized upon an assessment, in accordance with the provisions of section 1 of article 6 of its by-laws as printed on the back of this certificate.”

In section 1 of article 6 the provision was that the association •shall pay “ the amount collected from all of the members of the association at the time of accident upon an assessment of one dollar upon each half-rate member, and in addition, in case of full rate certificate two dollars, and of a half-rate certificate one dollar upon each full-rate member, however not to exceed the amount named in the deceased member’s certificate, which payment shall also be subject to diminution to the extent of the weekly indemnities paid to such member within six months preceding such death.”

In O'Brien v. Home Benefit Society of New York (11 N. Y. S. R., 814) in the opinion, Landon, J., says, viz.: “ In the present case the agreement is that ‘ all of the amount realized from one assessment, not exceeding $2,000,’ is payable. To recover in an action at law it must be necessary to show what is the amount realized from one assessment. It may be more or less than $2,000. In the absence of evidence there can be no presumption that it will equal $2,000, for that sum is specified as the greatest sum payable, thus clearly implying that it may be less.”

A recovery in Peck against this defendant was upheld (52 Hun, 256), but in that case it was found by the trial court “ that if an assessment had been levied, as provided by such policy, it would have produced at least $5,000, and that the plaintiff was entitled to a judgment for $5,000, with interest thereon from August 1, 1887, together with the costs of this action.” There was no proof given in the ease now before us that an assessment would have yielded “ $1,044.66 ” or any other sum. If it could be successfully maintained, as has been suggested, that the plaintiff was entitled to recover at least nominal damages, that would not-furnish an answer to the rulings made nor justify a refusal of the trial judge to refuse the motion for a new trial made upon tbe minutes on tbe ground that tbe verdict was •against evidence as tbe verdict was for $1,044.66.

Tbe foregoing views lead me to concur in tbe opinion of Martin, J., favoring a reversal.

Judgment and order reversed on tbe exceptions, and a new trial ordered, with costs to abide tbe event.


text:
    JOHN SEACORD, Respondent, v. CHARLES E. PENDLETON and Others, Appellants, Impleaded, etc. ANNIE O‘HEARN, Respondent, v. ELIZABETH PEARSALL and Others, Appellants. MERCHANTS’ NATIONAL BANK OF BINGHAMTON, New, York, Respondent, v. SELIM KIRBY and Others, Appellants.

      Hank, never legally incorporated — liability, to depositors, of those holding certificates of stock issued by it.

    A complaint alleged that a deposit had been made by the plaintiff in the Home Savings Bank, which was organized by the election of a president, cashier and board of directors; that the defendants were stockholders in said bank, which was, however, in fact, never legally incorporated under the laws of any State ■or of the United States, although certificates of stock were issued to and held by the defendants and dividends had been declared and received thereon ■before and at the time of the said deposit, made by the plaintiff, of his money in •said bank; that, by reason of the foregoing facts, the defendants were, at the time in the complaint mentioned, copartners, doing and carrying on the business of banking under the name and style of the Home Savings Bank.

      Held, that the defendants, by reason of the facts stated in the complaint, did not become jointly or individually liable to the plaintiff for the money deposited in the bank by him.
    'That the mere fact that the bank was not legally incorporated did not render the alleged stockholders liable as partners to persons depositing money therein, in the absence of proof that the stockholders had performed any act in relation to said bank, or that they had been in any way connected with, or had any knowledge in regard to, the management of its business, or in any way authorized, or consented to, any of the acts performed by others, except that they held what purported to be certificates of stock in the bank and received dividends ■thereon.

      That, in the absence of evidence of an agreement upon the part of the defendants to become partners, or of some act which indicated that they were acting as-such, or that they had knowledge of the acts of others in relation thereto, the-defendants did not become liable as partners, although they shared in the profits of the bank by the receipt of dividends paid therefrom upon their stock.

      ,Semble, that it would have been otherwise if the complaint had alleged that the-defendants had acted, or were instrumental, in organizing such bank by the election of a president, cashier or board of directors, or had taken any part in such proceedings or in any business transacted by the bank, either as principals, partners, agents, directors or otherwise.
    Appeals by the respective defendants from interlocutory judgments, entered, in tlie first and second above-entitled actions, in the office of the clerk of the county of Tioga, and in the third above-entitled action, in the county of Broome, overruling the demurrers of certain of the defendants, with leave to the demurring defendants-within twenty days from the service of a copy of the interlocutory judgment, to pay the costs and answer the complaint, and directing, that otherwise the respective plaintiffs have judgment absolute.

      II. Austin Ciarle and Frederick Collin, for the appellants.

      Jacob Schwartz and Edmund O' Connor, for the respondents.
   Martin, J.:

This was an appeal from an interlocutory judgment overruling a. demurrer to the plaintiff’s complaint. The ground of the demurrer was that the complaint did not state facts sufficient to constitute a. cause of action.

The complaints in these actions in substance alleged, that on. September 15, 1873, there was a bank instituted at South Waverly, Penn., which was conducted under the name of the “ Home Savings Bank; ” that it was organized by the election of a president, cashier and board of directors; that the president was dead; that there was no treasurer; that the bank continued to do business-during the times hereinafter stated; that in the course of its business the bank, through its authorized agents, received money on deposit, issued certificates for moneys so deposited, and held money subject to the check of the depositors; that said bank was never legally incorporated under the laws of any State, or of the United States; that certificates of stock were issued to and held by each of the defendants before and at the time of the deposit of plaintiff’s money in said bank, and each of the defendants was a stockholder in said bank; that the full amount of the stock held by each defendant had been paid up before the deposit of plaintiff’s money, and that said -defendants shared in the profits of said bank from the receipt of dividends paid from time to time upon their respective shares of •stock; that at various times between July 17, 1886, and July 14, 1887, the plaintiffs deposited certain moneys in said bank; that plaintiffs demanded payment of the sums so deposited before the commencement of this action; that no part had been paid, and the plaintiffs demanded judgment against the defendants for the sums so deposited by them.

The complaint in the action of the Merchants’ National Bank also ■contained the following allegation: “ That by reason of the aforesaid facts the plaintiff alleges upon information and belief that the above-named defendants were at the times hereinafter named copartners, doing and carrying on the business of banking under the name and style of the Home Savings Bank as aforesaid.” We-do not think this allegation in any way adds to or strengthens the complaint. It will be observed that it is not an allegation that the defendants were copartners aPd carrying on business under the name of the Home Savings Bank, but an allegation that by reason cf the aforesaid facts the plaintiff alleges, etc. Thus, we see that it is an allegation of a conclusion based upon the facts already alleged, and not the allegation of an independent fact.

The amended complaint in the O'Hearn Case contains the following allegation: “ The said bank was never legally incorporated, nor was any attempt made to incorporate the same under the laws of •any State or of the United States.” Substantially, the only question presented upon this appeal is, whether the defendants became jointly or individually liable to the plaintiffs for the money deposited in such bank by reason of the fact that they held what were apparently certificates of stock in a corporation designated as “ Home Savings Bank,” when, in fact, such bank had not been incorporated under the laws of any State or of the United States, although organized by the election of a president, cashier and board of directors, and when the defendants had not, by word or act, taken any part in such proceedings, or in any business transacted by such bank, as partners, agents, directors or otherwise, and had no knowledge thereof. The contention of the plaintiffs is, that the bare fact that such bank was not legally incorporated rendered all the alleged stockholders liable as partners to the persons depositing money therein.

, It is stated in the opinion of the learned trial judge that “ the defendants were the owners of the business transacted in that institution under the name of£ The Home Savings Bank,’ and the business was carried on with the defendants’ consent, by their duly authorized agents and managers, consisting of a cashier and a board of directors. * -x- * The plaintiffs were depositors in said institution, and the defendants had the use and profits of the plaintiffs’ fund so deposited. * * * They have been holding themselves out continuously since September 15, 1873, as a banking institution, with a cashier and board of directors. In July, 1887, the institution failed and became wholly insolvent. * * * The plaintiffs deposited their funds with the defendants in some capacity, and they expected such fund to be returned to them. They received and agreed to-refund the fund when called for. They failed to do this; the relation of debtor and creditor then existed.”

If the foregoing facts are alleged in the complaint, or may, by reasonable and fair intendment, be implied from the allegations therein, then it is quite clear that the judgment appealed from was proper and should be upheld. (Milliken v. Western Union Tel. Co., 110 N. Y., 408, and cases cited in the opinion.) But an examination of the complaint, as set forth in the appeal book, fails to show that it contains any such allegations, nor do we think that by any reasonable and fair intendment these facts can be implied from the allegations contained therein. We find no allegation in the complaint that the defendants have performed any act in relation to such bank, or that they had been in any way connected with, or had any knowledge in regard to the management of its business, or in any way authorized or consented to any of the acts performed by others, except that they held what purported to be certificates of stock and received dividends thereon. Nor is there any allegation in the complaint that any articles of association or of incorporation or partnership existed between or were signed by any of the defendants, or that there was any agreement between them under which such business was carried on.

In 2 Morawetz on Corporations (2d ed.), section 748, it is said: “ If an association assumes to enter into a contract in a corporate capacity, and the party dealing with the association contracts with it as if it were a corporation, the individual members of such association cannot be charged as parties to the contract, either severally or jointly, or as partners. This is equally true whether the association was, in fact, a corporation or not, and, whether the contract with the association in its corporate capacity was authorized by the legislature or prohibited by law and illegal. * * * If an association undertakes to enter into a contract as a corporation, it is clear that the members of the association do nothgree to be parties to the contract severally or jointly. They do not agree to be bound as partners either to each other or to the party contracting with the association. It is equally clear that the party contracting with the association does not intend to contract with its members individually. To treat the individual members of the association as parties to the contract, under these circumstances, would, therefore, involve not only the nullification of the contract which was actually contemplated by the parties, but the creation of a different contract, which neither of the parties intended to make.”

In Fay v. Noble (7 Cush., 188), it was held: The subscribers for and holders of stock in a manufacturing corporation, which has been defectively organized, and transacted business under such defective organization, do not thereby become partners, general or special, in such business. In Merchants and Manufacturers' Bank v. Stone (38 Mich., 779), it was held that where a body professing to be a corporation has been dealt with expressly as such, those who have dealt with it cannot question its corporate existence for the purpose of charging its members individually as if they were partners.

In Central City Savings Bank v. Walker (66 N. Y., 424), it was held: To establish a liability against a party as a partner for the acts of others, it must be made to appear that a copartnership was formed by express agreement, or that there was an authorization in advance and a consent to be bound by such acts as a partner, or a ratification of the acts after performance, with full knowledge of all the circumstances, or some act by which an equitable estoppel has been created.

In Fuller v. Rowe (57 N. Y., 23), it was held: That while pa/rUes assuming to aot in a corporate capacity without a legal organization as a corporate body are liable as partners to those with whom they contract, to charge any one of them, as such, it must be shown that he was so acting at- the time the contract sued upon was made, or that upon some consideration he agi’eed to become liable with the others.

In Planters and Miners' Bank v. Padgett (69 Ga., 159), where a creditor contracted with a company as a corporation, both parties believing the corporation to exist de jure as well as de facto, and with no intention at the time of giving credit to or binding the members individually, or as copartners, it was held that an action could not be maintained against them on that account as partners. (See, also, Hudson v. Spaulding, 25 N. Y. State Rep., 257; Trow-bridge v. Scudder, 11 Cush., 83 First National Bank of Salem v. Almy, 117 Mass., 476; Blanchard v. Kaull, 44 Cal., 440, 450.)

In Stafford Bank v. Palmer (47 Conn., 443), it was held that one who became a stockholder in a corporation, although not properly organized, but who took no part in its organization, and did nothing except to receive a certificate of stock, and afterwards to inquire as to the dividends, was not liable to a plaintiff who had dealt with the company as a corporation, and not on the credit of such stockholder. In delivering the opinion in that case, Granger, J., said: In order to make one man liable for the acts of others, he must either directly or indirectly participate in the acts while they are being done, or must authorize or direct them to be done beforehand, or-ratify and approve them afterwards.”

The authorities cited would seem to require us to hold that the allegations of the complaint were insufficient to constitute a cause of action, and that the bare fact that the defendants were holders of what appeared to be stock in a corporation, but which was not properly organized, and received dividends thereon, in the absence of evidence of an agreement upon their part to become partners, or of any act which indicated that they were acting as such, or that they had any knowledge of the acts of others in relation thereto, did not make them liable as partners. Nor do we think that the cases relied upon by the respondents would justify us in holding a contrary doctrine.

In Whipple v. Parker (29 Mich., 370) there was evidence which tended to show that the parties to the proposed corporation had, in fact, organized a copartnership, and were doing business as such prior to the execution of the articles of incorporation, and in that case it was held that, if such partnership did not previously exist, that the stipulations contained in the articles of incorporation contained all that was essential for the creation of a partnership. Thus, it is seen that the principle of that case does not aid the respondents.

Nor do we think the National Bank of Watertown v. Landon (45 N. Y., 410) sustains the doctrine contended for by the respondents. In that case the stockholders of a manufacturing corporation, upon the expiration of its charter, agreed to continue the business, and appointed one of their members as agent with managing powers, and agreed to furnish money, when called upon by him, to carry on the business in proportion to the stock held by each. It was held that such an agreement constituted a partnership as to third persons within all the authorities, and it was upon that ground that the defendants were held liable.

In Wells v. Gates (18 Barb., 554) a number of individuals agreed to form an association for the purpose of establishing a newsjraper, and appointed three persons as managers, authorizing them, when sufficient capital should be subscribed and paid in or secured, to establish and conduct a paper for the benefit of the stockholders. Two of the managers, when they thought a sufficient amount was subscribed to justify them in purchasing a press and other materials, purchased the same upon credit. It was held that the persons signing the agreement or articles of association were liable as partners for thé amount of the debt thus incurred. That decision was based upon the agreement which was subscribed by the parties, whereby there was a consent to engage jointly in the undertaking’ without further condition or action upon their part. The case of Pettis v. Atkins (60 Ill., 454) is to the same effect. The other cases cited by the respondents, so far as they hear upon the question under consideration, are based upon some act or agreement of the parties.

"We do not think the allegation in the complaint that .the defendants shared in the profits of said bank, by the receipt of dividends paid from time to time upon their respective shares of stock, establishes a liability on the part of the defendants as copartners for acts performed by others without their consent. It did not, we think, amount to a ratification of such acts. (Central City Savings Bank v. Walker, supra.) Nor do we think that the judgment can be sustained on the ground that the defendants were members of a joint-stock association, and, as such, liable to the plaintiff. We think the allegations of the complaint were insufficient to constitute-a cause of action against the defendants as members of such an association, constituted either by agreement, implication of law or otherwise.

If the complaint in this action had alleged that the defendants had acted or were instrumental in organizing such bank by the election of a president, cashier or board of directors, or that they had taken any part in such proceedings, or in any business transacted by such bank, either as principals, partners, agents, directors or otherwise,, or that any articles of association, of incorporation or partnership-had existed between or been signed by them, or that there was any agreement between the defendants under which such business was carried on, the rule applicable to the case might have been different, but as the complaint contains no such allegations, we think it was insufficient. These considerations lead us to the conclusion that the Special Term erred in overruling the defendants’ demurrers.

Interlocutory judgments overruling the defendants’ demurrers-reversed, with costs of this appeal, and interlocutory judgment ordered in favor of the defendants sustaining such demurrers,, with costs, with leave to the plaintiffs to amend their complaints-on the payment of such costs.

Hardin, P. J., and JVIbrwin, J., concurred.

So ordered.