text:
    ADELAIDE M. de LAVALETTE and CLARISSA KNIGHT, Plaintiffs and Appellants, v. JAMES E. SHAW and others, Defendants and Respondents.
    EQUITY.
    In equity, action will lie to recover interests in property, where parties have obtained the legal title to the same by a series of fraudulent and unconscientious acts and dealings.
    Where one, by a series of such acts, and by collusion with others, has placed a party in a situation of embarrassment for his own advantage, and then availed himself of the opportunity to obtain the property of that party, by a purchase or transfer through other parties with whom he is in collusion, at a sacrifice, he can be called to account in an equitable action.

      Decided June 25, 1877.
    A court of equity could and should afford relief against such fraudulent action, although no false statements appear to have been made in the premises.
    In this case, however (the general facts appearing in the opinion of the court), it was held that the evidence fell far short of establishing such a case.
    Before Sedgwick, Speie and Freedman, JJ.
    Appeal by plaintiffs from judgment entered upon report of referee.

      Horace Andrews, attorney, and Albert Stickney, of counsel, for plaintiffs.

      Paddock & Cannon, attorneys, and F. A. Paddock, of counsel, for defendants.
   By the Court.—Freedman, J.

—The action, as brought, is based on the theory that the defendant Shaw, by collusion with different parties, placed the plaintiffs in a situation of embarrassment for his own advantage, and that, after having succeeded in this, he availed himself of the opportunity to deprive the plaintiffs of their property. These matters, if established by competent proof, would constitute a fraud against which a court of equity could afford relief, for false statements of matters of fact are not necessary. But- the evidence falls short of making out such a case.

For three years prior to October, 1869, the defendant, Shaw, assisted the plaintiff, De Lavalette, as but few prudent business men would have done.

In December, 1866, he leased to her the Reunion Hotel, and sold her the furniture therein at the sum of $28,500, without receiving one dollar in money. He contented himself with taking a chattel mortgage of $23,500 upon the furniture thus sold, which is conceded to have been worth the price asked, and another chattel mortgage of $5,000 upon the furniture and fixtures she then had in the De Laneau House, and which, together with her leasehold interest in the premises, were then already incumbered by a prior mortgage of $3,000.

When the holder of the last-named mortgage pressed for payment, Shaw, at the solicitation of De Lavalette, in February, 1867, advanced the amount, and took an assignment of it.

During the next twelve months, he advanced her the further sum of $7,382.85, to secure which he took (1) her bond secured by a mortgage on two lots in the rear of the De Laneau House, which had been bought by her for $17,000, and on which a purchase money mortgage of $14,000 then still rested, and (2) a mortgage on her leasehold interest in the De Laneau House, which was already incumbered as above stated.

In May, 1869, when, on the ground that De Lavalette had assigned her lease to Clarissa Knight, and transferred to her the title to the furniture in the De Laneau House, the owners of the fee refused to renew the lease of said house, except on condition that Shaw should become surety for the rent, Shaw, at the solicitation of De Lavalette, did become such surety for the plaintiffs for the term of five years, then ensuing. Shortly thereafter, the plaintiffs allowed several months’ rent to accumulate and to remain unpaid, which default induced the owners of the fee to commence proceedings for the recovery of the possession of the premises. These proceedings had been prosecuted to a termination, and the owners of the fee had obtained judgment for the possession, when, in October, 1869, De Lavalette again applied to Shaw for a further loan, with which to pay the rent then in arrear and exceeding the sum of $2,000.

There is nothing in the evidence tending to show that, up to this time, Shaw had not been as good a friend to the plaintiffs as they could desire to have for business purposes, but now he refused to loan any more. Hq declined to extend any further assistance to the plaintiffs. He offered, however, to loan the money to Mr. Childs, with whom De Lavalette was negotiating about a sale of an interest in the De Laneau hotel-business, provided he, Childs, would take an assignment of the lease, and complete his negotiation with De Lavalette, but Childs declined.

Shaw then said that if plaintiffs chose to assign the' lease to Chandler, he would lend him the money, but he would not do so, unless plaintiffs made an unconditional assignment to him, and this plaintiffs consented to do and did do. There can hardly be a doubt that Shaw intended that the assignment should be absolute not only in form, but in fact, and that the plaintiffs so understood it, for they had the assistance of counsel in this transaction and acted upon his advice. Notwithstanding such assignment they could have hope, but to be dispossessed would have been immediate ruin. Perhaps they supposed that thereafter they would find it comparatively just as easy to get along with Shaw as it had been in the past. But whatever their motives may have been, it is sufficient, for the purposes of this appeal, that there is no evidence tending to show that Shaw, by unfair means, induced them to do so.

But even if it be deemed that the assignment of the lease to Chandler was intended as a security merely, and that thereby Chandler, or the defendant Shaw, supposing Chandler to represent Shaw, became vested with no other or higher title than that of a mortgagee in possession, plaintiffs are in no better position, because, by virtue of the subsequent purchase of the plaintiff’s leasehold interest at the foreclosure sale, Shaw became the absolute owner, irrespective of the assignment and by a paramount title, and thereafter had a perfect right to make such terms with plaintiffs or with third persons desirous of purchasing, as were satisfactory to him.

What followed the assignment to Chandler is fully set forth in the findings of the referee, and these in turn are fully supported by the evidence. True, eventually the plaintiffs lost everything they had, but such loss was the result of lawful proceedings and the direct and natural consequence of their inability to meet their engagements, and not the consequence of any wrongful act on the part of Shaw or any of his co-defendants, and the evidence shows pretty plainly, even outside of the oral statements of witnesses, that such inability to meet their engagements arose from the fact that ever since 1866 De Lavalette had been doing a losing business. The testimony also shows that after the assignment to Chandler, Shaw for some time continued to give to plaintiffs, as he had done before, his assistance in a number of negotiations set on foot by De Lavalette for the purpose of effecting a sale of an interest in the hotel business of the De Laneau House, or Ashburton House as it was then called, and that after. plaintiffs had even lost all legal claim upon Shaw, an arrangement was made finally consummated with third parties under which not only Shaw was secured, but the plaintiffs" also were benefited, and that they accepted such benefit.

Now the terms imposed by Shaw on this final settlement may have been harsh, but again the plaintiffs had legal advice; the papers were prepared and executed and the arrangement completed with knowledge of every fact involved, and the plaintiffs were satisfied with the arrangement.

Upon the whole case I fail to perceive that Shaw did any thing towards securing that to which he was honestly and fairly entitled, which in law or equity he had no right to do. I have read the evidence with care and am satisfied that the findings of fact, as made by the referee, are sufficiently sustained by evidence, and that they in turn sustain the conclusions drawn from them.

There being no error, and the exceptions to the exclusion of testimony being clearly untenable, the judgment should be affirmed with co'sts.

Sedgwick and Speir, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    THOMAS E. FAIRFAX, Plaintiff and Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant and Appellant.
    WAREHOUSEMAN.
    Duties and Responsibilities.
    The non-delivery of property on' demand raises a presumption of negligence, which the warehouseman is bound to remove by proof showing that sufficient ordinary care has been bestowed by him upon the property, and to establish such care the proof should show affirmatively that the loss, however it may have -occurred, was not caused by want of proper care and diligence on his part. If the proof comes fully up to this requirement, the question of negligence becomes a question of law, and may be determined as such.
    But if, in such case, the fair and legitimate inference from the evidence is favorable to plaintiff’s cause of action, or they present a case where reasonable minds might differ as to the inference to be drawn from the evidence, the question is one of fact, and must be determined as such (See cases cited in the opinion of the court; also Claflin ». Meyer, 1, ante, where this subject is fully discussed).

      Decided, June 25, 1877.

      Held-, that this case was a proper one for the consideration of the jury as a question of fact.
    Before Speir and Freedman, JJ.
    This case comes before the court on the defendant’s appeal from a judgment entered on a verdict and from an order denying a motion for a new trial.
    The complaint alleges the receipt by the defendant as a common carrier of the plaintiff’s portmanteau on October 8, 1870, and the defendant’s failure to deliver it.
    The amended answer admits that the defendant is a.common carrier, the receipt of the portmanteau, its carriage to New York, and alleges its loss there without fault or neglect of the defendant.
    The answer then sets up that the carriage of the portmanteau was obtained from the defendant by fraudulent misrepresentations made by the plaintiff’s agents, to the effect that the plaintiff had a ticket entitling him to be carried over defendant’s road, whereas the plaintiff did not, in fact, travel over defendant’s road.
    The action was first tried in 1874, when the plaintiff had a verdict. The judgment entered was reversed and a new trial ordered (See 5 J. & 8. 516).
    On the second trial a verdict was directed for defendant. The plaintiff appealed, and the judgment was affirmed (See 8 J. & S. 128).
    The plaintiff then appealed to the court of appeals, where the judgment below was reversed and a new trial ordered.
    On the third trial the plaintiff had a verdict; and from the judgment entered thereon, and from the order denying motion for new trial on the minutes the defendant appealed.

      Frank Loomis, for appellant.

      Stickney & Shepard, for respondent.
   By the Court.—Freedman, J.

—Upon substantially the same facts as those appearing upon the last trial the court of appeals held that plaintiff’s portmanteau was taken in charge by the defendant and transported to New York and there deposited by it in its baggage-room; that the defendant thus incurred the responsibility of a warehouseman, at least; and that upon'the evidence the question of defendants’ negligence was one of fact which should have been submitted to the jury. If there is any material difference, it is in my judgment in favor of plaintiff’s position, for it now appears' for the first time upon defendant’s own showing that, there was an arrangement between defendant’s company and the Grand Trunk Railway, under which the latter was authorized to sell tickets and check baggage over defendant’s road, and that the defendant depended on the agent of the Grand Trunk Railway at Montreal for properly checking the baggage.

It is true that prior to the last trial the answer was amended by adding an allegation to the effect that the carriage of the portmanteau for the loss of which the action was brought, was obtained without compensation and by fraud and misrepresentation. But the same questions were argued and considered on former occasions, and the evidence wholly fails to show either fraud or misrepresentation. There is no pretense that any communication passed between plaintiff and the defendant or any of its agents at the time the portmanteau passed into the possession of the defendant, and it is conceded that the plaintiff personally committed no fraud, nor did he intend any. It is claimed, however, that under the arrangement existing between defendant and the Grand Trunk Railway the defendant was not to carry baggage, except as an incident to the carriage of the passenger from whom it would receive a ticket, whereon it could collect compensation for such carriage; that by the manner in which plaintiff’s portmanteau was delivered by the agent of the Grand Trunk Railway to the train baggage-man of the defendant, though no communication was made to him beyond the delivery of the baggage, the latter was warranted in the belief that the owner of the baggage accompanied it with a ticket, that but for such belief he would not have received it, and that the inducement of such belief contrary to the real fact constituted fraud upon and misrepresentation to the defendant. The answer to this claim is that such belief was induced by the act of the agent of the Grand Trunk Railway at Montreal, upon whom the defendant relied to affix the proper check. He was in no sense the implied agent of the plaintiff, but the implied agent of the defendant under its arrangement with the Grand Trunk Railway. If he made a mistake by affixing a wrong check, defendant’s remedy is against him or the Grand Trunk Railway.

Defendant having incurred, by its acts, the responsibility of a warehouseman, at least, the non-delivery of the property was sufficient to raise a presumption of negligence. This the defendant was bound to remove by proof showing that sufficient ordinary care had been bestowed upon the property, and, in order to establish such sufficient ordinary care, the proof should show, affirmatively, that the loss, however it may have occurred, was not caused by any want of proper care and diligence on its part. If the proof comes fully up to this requirement, the question of negligence may be determined as matter of law. But if, in respect to such question, the fair and legitimate inference from the evidence is favorable to plaintiff’s cause of action, or reasonable minds may differ as to the proper inferences to be thus drawn from the evidence, the question is one of fact, and it must be determined as such (Coleman v. Livingston, 36 N. Y. Superior Ct. [4 J. & S.] 37; reargued, Id. 231; and affirmed, 56 N. Y. 658; Burnell v. N. Y. Central R. R. Co., 45 Id. 184).

The court of appeals having decided in the case at bar, that upon the evidence, the question of defendant’s negligence should be left to the jury, it was submitted to them as a question of fact, in a manner quite favorable to the defense, and the jury determined it against the defendant.

numerous exceptions were taken to the refusal of the court to dismiss the complaint, to the charge as ■delivered, and the refusal of the court to charge, as requested by defendant’s counsel, but on examination, I failed to discover any which call for a new trial.

The judgment and order should be affirmed, with costs.

Speir, J., concurred.


text:
    ISAIAH KEYSER, Trustee, &c., of the Estate of Adam Klein, deceased, Plaintiff and Appellant, v. FRANKLIN KELLY, as Executor, &c., of James Kelly, deceased, Defendant and Respondent.
    EXECUTORS AND ADMINISTRATORS, COSTS AGAINST.
    ^Before bringing an action to recover a strictly legal claim against an estate, its owner should present the same to the executor or administrator, pursuant to § 41, tit. 3, chap. 6, of the revised statutes.

      Decided, June 25, 1877.
    An executor or administrator, exempt from costs in an action under and by virtue of that section of the revised statutes, cannot be made liable under section 317 of the Code.
    Before SFeir and Freedman, JJ.
    Appeal by plaintiff from order refusing to grant costs to be paid out of the estate of defendant’s testator, the plaintiff having recovered judgment.

      G. W. Cotterill, for appellant.

      D. M. Jaques, for respondent.
   By the Court.—Freedman, J.

—At the time the defendant as executor of James Kelly, deceased, advertised for claims, the plaintiff, who had been appointed trustee of Klein’s estate as the successor of James Kelly, deceased, had, as such trustee, a legal claim against Kelly’s estate, arising from the improper investment by said James Kelly of part of the trust fund belonging to Klein’s estate. The liability was a strictly legal one, and the mere fact that plaintiffs’ appointment as trustee under the last will and testament of Adam Klein, deceased, had to be made by a court of equity, did not turn it into a mere equitable one.

The claim was therefore one within section 41, of title 3, chapter 6, of part II. of the revised statutes, and consequently should have been presented before suit brought. Where executors are exempt from costs by virtue of that section, section 317 of the Code does not allow costs against them.

The plaintiff having failed to disclose any of the grounds upon which the court is authorized to award costs, the motion was properly denied (Morgan v. Skidmore, court of appeals, November 22, 1870, MS., reversing 55 Barb. 263, as to costs ; Howe v. Lloyd, 2 Lans. 337; Mersereau v. Ryers, 12 How. 301; Fox v. Fox, 22 Id. 453).

The decision in Sands v. Craft, 10 Abb. Pr. 216, is not authority to the contrary. That suit was by the plaintiffs, as executors and trustees, against the executors of a deceased co-executor and trustee, and the object of the action was to adjust and recover the amount of the assets held by the decedent at the time of his death as such co-executor. It was for these reasons that it was held, that the claim against the estate of the deceased was not referable under the statute. Yorks v. Peck, 9 How. 201, was a suit in equity.

The order should be affirmed with costs.

Speir, J,, concurred.


text:
    ALBERT C. LAMSON, Plaintiff and Respondent, v. STEPHEN A. MAIN, Defendant and Appellant.
    REAL ESTATE BROKER.
    His Employment and Commissions.
    Where there is a conflict of evidence as to the fact of his employment, and also in regard to the sale of the property having been effected through his agency, and the case was properly submitted to a jury, the verdict cannot be disturbed.
    The court held'in this case that the withdrawal of the question of the sale of the property having been effected through the agency of the plaintiff, from the consideration of the jury, by the direction of a verdict for the defendant, and its consequent determination as matter of law by the court, would have been error.

      Decided, June 25, 1877.
    Before Sedgwick, Speir and Freedhah, JJ.
    Appeal by defendant írom judgment entered upon verdict of jury, and from order denying motion made on minutes for a new trial.
    Arthur, Phelps, Knevals, & Ransom, attorneys ; Erastus L. Ransom, of counsel, for appellant.

      Sidney S. Harris, for respondent.
   By the Court.—Freedman, J.

—The action was brought by plaintiff to recover from defendant the sum of $640.00, alleged to have been earned by him a commission as a real estate broker by selling a house belonging to defendant.

The defendant denied the complaint, and claimed that he had employed one Richard Murphy, a real estate broker, to sell the house in question, that Murphy did sell it to one Leath, and that he, the defendant, had paid Murphy the commission therefor.

Upon the trial evidence was given on both sides and the questions of fact arising thereon submitted to the jury under instructions which were quite favorable to the defendant. STo exception lies to the charge as delivered, and indeed no complaint is made of it.

It was conceded on the argument that as to plaintiff’s employment as a broker the conflict of evidence was of so decided a character that the verdict of the jury on that point cannot be disturbed.

Upon a careful examination of the whole evidence it appears that a sufficient conflict also existed in regard to the question whether plaintiff’s agency was in point of fact the procuring cause of the sale. True, the purchaser and Murphy both swore that their information was not derived from plaintiff. But the plaintiff gave facts and circumstances to the contrary, and Ms version was supported by the testimony of a witness who, it is conceded,'was employed by defendant to take charge of the house pursuant to plaintiff’s recommendation. The purchaser may have been mistaken in his testimony ; Murphy seems to have had as much interest in defeating plaintiff’s claim as the plaintiff had in sustaining it, and the defendant had no personal knowledge upon this branch of the case. Under these circumstances, the decision of the question whether in point of fact plaintiff’s agency was or was not the procuring cause of the sale, depended so much upon the just weight to be attached to the testimony of the different witnesses according to the probabilities of the case and the inferences to be fairly and legitimately drawn from such testimony, that the withdrawal of the question from the consideration of the jury by the direct tion of a verdict in defendant’s favor and its consequent determination as matter of law, would have been error. This being so, the verdict cannot be set aside as being against evidence or the weight of evidence.

The judgment and order should be affirmed with costs.

Sedgwick and Speir, JJ., concurred.


author: By the Court. —Freedman, J.

text:
    THOMAS H. HARDING, Plaintiff and Appellant, v. JANE E. HARDING, Defendant and Respondent.
    divorces.
    Notwithstanding the determination of the issues by the referee, in favor of the divorce, the court, in the proper exercise of its supervisory power, upon the hearing of exceptions to the report, may withhold judgment of divorce upon the ground of insufficiency of proof of the alleged adultery, as also for the reason that there was sufficient evidence of condonation.
    But the court cannot on this hearing of the motion to confirm the report, and the exceptions thereto, dismiss the plaintiff’s complaint upon the merits.
    Where a party excepts to a report and brings those exceptions to a hearing, the motion is substantially a motion for a new trial, and the party making it is not entitled to relief exceeding ' that which is usually awarded to a party successfully moving for a new trial on a case or exceptions under section 265 of the Code, namely : No absolute judgment should be given where the question is one that can be determined by further proof; but an order should be entered (if it is a case for a new trial), setting aside the report, vacating the order of reference, and ordering a new trial of the issues, thus leaving the contesting parties free to select any of the modes of trial prescribed by the Code. In a case where no answer has been made, nor issue joined, but only a reference to take testimony and report, on the coming in of the report, the court may send back the report to the referee, with directions to take further proof, if the court deem the proofs insufficient.
    In this case the court affirms that part of the order of the court below that denies plaintiff’s motion for the confirmation of the report, but modifies that part of the order dismissing the complaint on the merits, and directs an order to the effect of setting aside the report, vacating the order of reference, and ordering a new trial of the issues, with costs to the defendant to abide the event, and a reversal of the judgment entered upon the dismissal of the complaint.

      Decided, June 25, 1877.
    Dormer- practice of the court of chancery in divorce cases reviewed and compared with the present practice.
    The statutes, practice and rules relating to divorces fully discussed in Sullivan v. Sullivan, 41 ID. T. Super. Ot. (9 J. & S.) 59, and in Blott v. Rider, 47 How. Pr. 90.
    Before Sedgwick, Speir and Freedman, JJ.
    The action is brought to dissolve marriage on the ground of adultery of the defendant with one William Zandt.
    —The answer denies the adultery and alleges con-donation. Upon consent an order of reference was made to hear and determine all the issues. The referee reported in favor of the plaintiff upon all the issues. The defendant duly filed her exceptions to the referee’s report. The plaintiff moved upon the referee’s report and the testimony to confirm such report. The defendant moved at the same time upon the exceptions, report and testimony, to vacate such report, and for further relief. Defendant’s motion was granted and plaintiff’s motion denied. Upon the settlement of the order defendant’s attorney made default, and plaintiff’s attorney entered. an order recommitting the report and testimony to the referee. Upon motion this default was opened, and after full argument an order was made dismissing the complaint upon the merits. A decree was entered accordingly. Plaintiff appealed from the order of dismissal and the judgment entered thereon.

      James M. Smith, of counsel for appellant, urged :
    —That the issues in the case were referred to the referee to hear and determine the same, not to take testimony and report the same to the court, as was the chancery practice where such matters were sent to a master in chancery. The report of the referee in this case, like the verdict of a jury in a case of conflicting evidence, is conclusive as to questions of fact. He takes the testimony, sees and hears the witnesses, and is quite as well able as a jury to come to a correct conclusion upon the facts (Davis v. Allen, 3 N. Y. [3 Coms.] 168 ; Ritter v. Cushman, 35 How. Pr. 248 ; Hoagland v. Wight, 7 Bos. 394). The rule of the court that no judgment in an action for divorce shall be entered except upon the special direction of the court, was adopted doubtless with the object of preventing any possible fraud or collusion of the parties. It never was intended, that a judge, sitting at special term, should have the powers of an appellate court, to decide upon the weight of evidence, in a case where there was a conflict of evidence, and to review exceptions in a case after a referee in a contested trial to whom the issues have been referred to hear and determine, and before whom a long and careful trial has been had, has made his decision. The statute provides for a trial by a referee, and no rule can alter that statute. In Waterman v. Waterman, 37 How. Pr. 43, the court say: “The Code does not allow of a reference to take the evidence and report it to the court, with the opinion of the referee merely, nor of any reference, except for a trial of the issue in a case where an issue has been joined in the action. It is a part of the system inaugurated by the present constitution (art. 6, sec. 10)—that the former practice in equity suits by evidence taken before an examiner, and not in the presence of the tribunal deciding the issues, should be done away, and it is only in cases where no issue has been joined, or where some interlocutory question is involved, that a reference to take and report evidence is not allowable ” (Code, §§ 271, 246). Same case, p. 40: “It is true that the authority of this court to grant divorces is derived from the statute. The title in the revised statutes, which confers the authority, shall be exercised by the ordinary proceedings in a chancery suit, except when it makes specific provisions to the contrary (2 R. S. 142, 149, 1st Ed.). Under the Code, the requirement that the facts contested by the pleadings shall be tried by a jury is modified by section 253 as follows : “An issue of fact in an action for a divorce from the marriage contract on the ground of adultery must be tried by a jury, unless a jury trial be waived as provided in section 266, or a reference be ordered as provided by sections 270, 271. Here is a clear authority to dispense with a jury trial and substitute a trial, by the court or referee.” The referee takes the place of the court or jury, and the report of a referee in a case at issue should be confirmed, leaving the party defeated to his or her remedy of appeal. The case of Renwick v. Renwick, cited by the chief justice, in 10 Paige, 420, in support of the doctrine “ that, no matter what may have been decided by the referee, the court must finally determine” has no application to this case, and does not in the slightest degree militate against the propositions we have set forth under this point. That case was decided in 1843 under the chancery practice. Ho defense was interposed, and the matters were referred to a master in chancery, to take proof of the facts and report the same, with his opinion ; not to hear and determine, as is now the practice. The case of Van Epps v. Van Epps, in 6 Barb. 320, also cited by the chief justice, was also under the chancery practice (1843). The case of Merrill v. Merrill, 11 Abb. N. S. 74, sustains our position. Judge Jones says: “When an issue is joined, that issue must be disposed of in some way authorized by the law. It can be disposed of only by a trial and there are but three modes of trial: one by jury, and one by the court, and one by a referee (Code, §§ 253, 254, 255). When issues joined in the cause are referred, the referee must determine the issue. The report of the referee should therefore have been confirmed, leaving the defendant to seek her remedy by appeal if she so desired. There are no exceptions in the case, taken by her, which are at all tenable. While the appellant insists that the only proper course for the learned chief justice who heard the motion, to pursue, was to confirm the report, still if there was any irregularity or any requirement of the statute which had not been complied with, the only other order that the court at special term could make was an order recommitting the report and testimony of the refereé to take further proof of the facts, and the order of October 16, 1876, was therefore proper, and should have been allowed to stand. The practice is the same whether the cause be submitted on the report without an appearance by the defendant, or on argument of exceptions to the report (2 Van Santvoord’s Equity Practice [2nd Ed.] 240). The order of January 27, 1877, vacating the order of October 16, 1877, denying the plaintiff’s motion, and dismissing his complaint on the merits, and the judgment thereon of March 5, 1877, both of which have been appealed from, should be set aside, and an order entered confirming the referee’s report, leaving the defendant to her appeal therefrom. Under the statute (2 R. S. 145, § 40) “the court may award a new or further trial of such issue, as often as justice shall seem to require.” If this plaintiff is not entitled to his judgment absolute, justice certainly requires that a new trial should be ordered.

      George Gallagher, of counsel, for respondent, urged :
    —That the court, at a special term, had full power to vacate the referee’s report and to dismiss the complaint on the merits of the case. 1. A motion to this effect had regularly been made, and notwithstanding the referring of all the issues to the referee, to hear and determine, the court still retained its supervisory power (Sullivan v. Sullivan, 9 Jones & S. 519; see also opinion of the chief justice, and cases cited). The appellant assumes the position that the court cannot malte any decree at all, should it, in the exercise of its supervisory powers, consider that the findings of the referee were improper ; that it must in such case invariably recommit the report. Suppose this to be done, once and repeatedly—say fifty times, and still the same report is sent in, and the court still considers the findings unsupported by the testimony, though the merits have been fully and exhaustively developed, must there never be a final decree? must there be a perpetual game of battledore between the court and the referee ? When can a final decree be, made ? “ When all the facts and circumstances, material and necessary to a complete explanation of the matters in litigation are brought before the court, and so fully and clearly ascertained on both sides, that the court is enabled, upon a full consideration of the case made out and relied on by each party, finally to deter- • mine between them, according to equity and good conscience” (1 Wait Pr. 438). 2. The statute, in express language, authorizes a dismissal of the complaint when forgiveness is shown. Supposing the appellate court to hold broadly that in an action for divorce on the ground of adultery, where all the issues are referred, the court, at special term, has no power to give judgment contrary to the findings of the referee upon the issue of adultery, it must make an exception when the defense of condonation has been established. The statute says : “Although the fact of adultery be established, the court may deny a divorce in the following cases :......2nd. Where the offense shall be forgiven, &c.” (3 R. S. [5th Ed.] 236, § 55). The learned chief justice, in his opinion, says : “ The proof of the forgiveness by the plaintiff of the alleged offense of defendant is so fully in accordance with the statute that, even if the defendant had committed the offense, the plaintiff could not maintain his suitand the court, therefore, by virtue of the power conferred by statute, denied the divorce—i. e., dismissed the complaint. This power to deny a divorce is clearly conferred upon the court, and not upon the referee. The opinion of Mr. Justice Monell, in Amory v. Amory (6 Robt. 516), is analogous. Though the appellate court see fit to vacate and reverse the order and judgment appealed from, it would not be proper to go further and confirm the report of the referee, and give judgment in favor of the plaintiff. Though the appellate court should hold that an error was made at special term, and that the court exceeded its powers in dismissing the complaint, even then the plaintiff should not have a new trial. The interests of justice do not require it, and from the merits of the case, the plaintiff does not deserve it.
   By the Court. —Freedman, J.

—In Sullivan v. Sullivan, 41 N. Y. Superior Ct. (9 J. & S.) 519; and Blott v. Rider, 47 How. Pr. 90, the policy of the statute relating to the granting of divorces, the reason for the enactment of the ninety-second rule, and the practice on reference of the issues, have been fully discussed.

The order of reference in the case at bar was in all respects regular. But the court at special term, in the exercise of its supervisory power, saw fit to withhold judgment of divorce notwithstanding the issues had been determined by the referee in favor of the plaintiff. The only question, therefore, which is open for review is whether the power was properly exercised upon the facts before the court.

Upon examination of the testimony I am satisfied that upon the ground of insufficiency of proof of the alleged adultery, as well as for the reason that, even in case of adultery, there was evidence showing condonation, the court below was fully justified in denying plaintiff’s motion for confirmation of the report and in sustaining defendant’s exceptions.

But, in absolutely dismissing plaintiff’s complaint upon the merits, the court went too far.

The defendant had excepted to the report and brought the exceptions to a hearing. Her motion was substantially a motion for a new trial, and though she was not bound to make it on a case prepared and settled as if the trial had been had by jury, she was, on the other hand, not entitled to relief exceeding that which is usually awarded to a party successfully moving for a new, trial on a case or exceptions under section 265 of the Code. In the last-mentioned case no absolute judgment is given when the question is one that can be obviated by proof, but the order simply sustains the exceptions, if any there, be, and the ruling made or verdict rendered at the trial is set aside and a new trial ordered with costs to the moving party to abide the event.

Formerly in an action for divorce on the ground of adultery, the court of chancery directed a feigned issue to be made up for the trial of the facts contested by the pleadings, and the court was expressly empowered by statute (2 R. S. 145, § 40) to award a new or further trial of such issue as often as justice! should seem to require. Under our present system of procedure and the rules of the courts specially applicable to actions for divorce, the trial of the issue of adultery by a referee maybe looked upon as one of the modes of trial which have been substituted for the trial by feigned issue, and hence in this class of cases the court at special term does possess the power to order a new trial.

The power, as already stated, should be exercised as nearly as possible in conformity with the principles which control on a motion for a new trial on a case or exceptions. Consequently, if the exceptions are sustained and the question is capable of being obviated by proof, no absolute judgment should be directed, but a new trial ordered. And if it is a case for a new trial, the report should not be sent back to the referee with directions to take further proof, as may be done in a case of no answer, but the report should be set aside, the order of reference vacated, and a new trial of the issues ordered. In such case the contesting parties are again free to select any one of the three modes of trial prescribed by the Code.

That part of the order of January 27, 1877, which denies plaintiff’s motion for confirmation of the report, should be affirmed; but the remaining part should be modified so as to provide that the report be set aside, the order of reference vacated and a new trial of the issues had, with costs to the defendant to abide the event. The judgment of March 5, 1877, should be reversed altogether.

Sedgwick and Speer, JJ., concurred.


text:
    JAMES McMAHON, Plaintiff and Respondent, v. PETER H. WALSH, Defendant and Appellant.

      Decided June 25, 1877.
    NEGLIGENCE. PERSONAL INJURY CAUSED THEREBY.
    Damages, hot Excessive.
    Where the personal negligence of the master has directly caused the injury, the master's liability to the servant is the same as it would be to a person not a servant.
    In a case where no motion was made for the dismissal of the complaint, nor for the direction of a verdict, but the case was treated on the part of the defense throughout as one which could be disposed of by a jury only, and it not appearing from the evidence how the case could have been taken from the jury, the judgment should not be disturbed on the ground that the verdict was against the weight of evidence.
    The verdict was for $1,000. Plaintiff’s injuries resulted in the loss of a third finger of the left hand; and it appeared that he was confined ten days in the hospital, and subsequently frequently returned there for treatment; that he was compelled to carry his hand in a sling for three months; that it took eight months to heal, and ever since that injury plaintiff was unable to do the same work that he had been accustomed to before that time, or to earn the same amount of wages. 1leld, that under these circumstances the verdict should not be set aside on the ground that the damages were excessive.
    Before Speir and Freedman, JJ.
    Appeal from judgment entered upon verdict of a jury and from order denying defendant’s motion on the minutes for a new trial.
    The action was for personal injury occasioned by defendant’s negligence.
    The jury rendered a verdict for plaintiff for $1,000.

      Redfield & Hill, for appellant.

      Nelson Smith, for respondent.
   By the Court.—Freedman, J.

—The action proceeded upon defendant’s personal negligence in the control of the operation of the machinery that caused the injury. In such a case the master’s liability to the servant is the same as it would be to one not a servant. Testimony was given on both sides, and the whole case submitted to the jury under a charge which was quite favorable to the defendant, and to which no exception lies. Ho motion was made for the dismissal of the complaint or the direction of a verdict, but the case was treated on the part of the defense thoughout as one which could be disposed of by the jury only. Hor does it appear how upon the evidence it could have been taken from the jury. The judgment therefore should not be disturbed on the ground that the verdict was against the weight of evidence.

Plaintiff’s injuries resulted in the loss of the third finger of the left hand, and it appeared that he was confined ten days in the hospital and subsequently frequently returned there for treatment; that he was compelled to carry his hand in a sling for three months ; that it took eight months to heal, and that ever since that time he was unable to do the same work he was accustomed to, or earn the same wages. Under these circumstances the verdict cannot be deemed excessive.

The judgment and order should be affirmed with costs.

Speir, J., concurred.


text:
    AUGUSTA STRUPPMAN, et al., Plaintiffs, v. AUGUSTA MULLER, et al., Defendants.

      Decided June 25, 1877.

    APPEAL; WITHDRAWAL AND DISMISSAL OP.
    Where an appeal has been dismissed on the consent of the only appellant, no other party to the aetionhas a right to move the general term afterwards for an affirmance of the order or judgment appealed from. The party appellant or the parties appellants are the only parties who can move the court in favor of the appeal.
    Before Sedgwick, Speir and Freedman, JJ.
    Motion to vacate order.
   By the Court.—Freedman, J.

—Upon proof that the appeals of the infant defendants Muller, from the orders of December 22, 1876, had been withdrawn pursuant to a stipulation entered into by the parties to said appeals, the general term, on February 23, 1877, granted an order dismissing said appeals without costs, and such order was duly entered.

This having been done, another party to the action, who had no interest in said appeals, not having in fact appealed, has no right to procure, at a subsequent general term, an order of affirmance of the orders of December 22, 1876, by default. The party appellant or the parties appellants .are the only parties who can move the court in favor of the appeal.

The order of March 5, 1877, should be vacated and set aside.

Sedgwick and Speir, JJ., concurred.


text:
    THE HIGHLANDS CHEMICAL AND MINING COMPANY, Plaintiff and Appellant, v. JOHN MATTHEWS, Defendant and Respondent.

      Decided, June 25, 1877.
    CONTRACT IN WRITING ; FAILURE TO PERFORM.
    Damages fob Non-Pebfobmahce.
    A written contract must be considered as the repository and evidence of the final intentions and understandings of the parties thereto; and where there is no uncertainty as to its object or extent, or as to its meaning, it is to be conclusively presumed, that the whole contract of the parties, and its object, purpose, and meaning are contained within the writing; and all oral testimony of conversations or declarations of the parties, previous to or at the time when the contract was completed, should be rejected, as also conversations or declarations of the parties after-wards, in regard to the contract or the subject-matter thereof
    The differences between the contract price and the lowest market price of the articles that were not delivered as contracted for, constitute the damages for non-delivery.
    Before Speir and Freedman, JJ.
    Appeal from judgment and order refusing new trial.
    The complaint alleged a sale and delivery of 1051 carboys of oil of vitriol or sulphuric acid by plaintiff to defendant, and the action was brought to recover their price.
    The answer set forth a written contract, alleged that plaintiff failed to deliver a large number of the carboys called for thereby, and claimed damages by reason thereof.
    Plaintiff’s reply alleged that the contract was subsequently modified by an agreement that defendant should not require over fifty carboys per day, and denied the remainder of the answer.

      On the trial the court held that no such modification of the contract as alleged in the reply had been proven, and that defendant was therefore entitled to recover on his counter-claim ; that the measure of his damages was the difference between 1% cents per pound, the contract price, and 2M cents per pound, the market price, on the amount remaining due and undelivered, and directed a verdict for defendant for $2,440.76, being the balance of said counter-claim over and above the amount of plaintiff’s demand. To this direction, plaintiff excepted. It thereafter moved for a new trial on the minutes, which was denied, and appealed from both order and judgment.

      North, Ward & Wagstaff, attorneys, and Thomas M. North, of counsel, for the plaintiff.

      Miller, Peet & Opdyke, attorneys, and Henry L. Burnet, of counsel, for defendant.
   By the Court.—Freedman, J.

—By the contract in question the plaintiff undertook to supply or furnish defendant with oil of vitriol or sulphuric acid of a certain standard for one year from the date thereof, and the defendant had the option to call during that term for not more than 10,000, nor less than 7,000 carboys. These the plaintiff agreed to deliver at any place to be designated by the defendant within the limits of the City of ¡New York in lots of not less than ten carboys. The contract provided for the rendition of monthly statements of account and their settlement, and that on April 25, 1874, which is one year from the date of it, it should terminate, without reference to the number of carboys of acid delivered. But there was no restriction as to the use which the defendant was to make of the acid. Whether he needed it in the ordinary course of his business as a soda water manufacturer, or as a wholesale or retail dealer in the article itself, did not concern the plaintiff, and no such limitation can be en-grafted upon the contract by the court. The parties stood on an equal footing when they made it; they well understood its object, purpose, scope and meaning, and hence the court cannot make a new or different contract for them.

Having been reduced to writing, it must be taken to be the repository and evidence of the final intention and understanding of the parties. The rule is elementary that when parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writing ; and all oral testimony of a previous colloquium between the parties, or of conversations or declarations at the time when it was completed, or afterwards, is rejected.

No mere improvidence in the terms of the contract, or difficulty in its execution, if any were shown, can therefore impair plaintiff’s obligations thereunder.

It is only where the language of a contract is indefinite or ambiguous, that explanatory testimony can be given or the acts of the parties in carrying it out be received as a practical construction of it. But the case at bar is not of this character. The contract is plain and unambiguous, and to incorporate the limitation contended for by plaintiff would not be in explanation, but in restriction of the terms of the contract. In Kemp v. Knickbocker Ice Co., recently decided by the court of appeals, the limitation was in the contract itself.

Inasmuch, however, as the contract in question did not provide for any specific quantity to be delivered per day or month during the life of the contract, it was undoubtedly competent for the parties to regulate the quantity to be delivered at regular intervals by agreement outside of the contract. But the case contains no evidence which would have authorized the jury, if the question had been submitted to them, to find that such regulation was in point of fact entered into between the parties as a modification of the contract. STor was there evidence, .sufficient to carry the case to the jury, that the defendant waived any of his rights under the contract, or that he ever refused to receive any of the acid when the plaintiff was ready and willing and offered to deliver it.

The rights of the parties are therefore to be determined strictly according to the terms of their contract, and under that the defendant had a right to insist that during the twelfth month the plaintiff should deliver acid sufficient to make up the 10,000 carboys called for by the contract. The defendant having made such demand, and plaintiff having refused, the defendant was entitled to the damages sustained in consequence of such non-delivery. The evidence showed that on April 2d, 1874, there remained undelivered 3,700 carboys ; that the average weight was 166 8-10 pounds ; and that the defendant’s damage was at least % cents a pound, that being the difference between 1% cents, the contract price, and 2% cents, the lowest market price which appeared in evidence.

Under these circumstances, there being no material conflict of evidence, the trial judge properly refused to submit to the jury any of the matters requested by the plaintiff, and properly directed a verdict for the defendant, representing the difference between plaintiff’s claim for balance due on acid delivered, and the lowest estimate of damages sustained by defendant in consequence of the non-delivery of the balance.

The judgment and order appealed from should be severally affirmed with costs.

Speir, J., concurred.


author: By the Court.—Speir, J.

text:
    DEMETRIO F. AROSEMENA, Plaintiff and Respondent, v. ANGELINE HINCKLEY, Defendant and Appellant.

      Decided August 31, 1877.
    ACTION FOR THE RECOVERY OF PERSONAL PROPERTY. WHEN DEMAND NECESSARY BEFORE ACTION.
    Trustee of an Express Trust mat bring Action, &c.
    A bill of sale of furniture, payable in installments, provided that if default was made in any payment, that then all the payments previously made should be forfeited, and the furniture should be reconveyed and forfeited to the vendor, without consideration.
    Held, that after a demand of payment and a refusal or neglect to pay, that a demand for the furniture must be made before an action for its recovery could be maintained.
    In such an action the value of the property fixed by the bill of sale, less the amount of the installments paid on the same by the vendee, is the value to be assessed by the jury, in finding a verdict for the plaintiff; and the interest on such value from the time of the demand, is the amount of damages to be assessed for its detention.
    A trustee of an express trust can bring and maintain an action based upon a contract executed by him in that capacity.
    Before Speir and Freedman, JJ.
    Appeal from a judgment and order denying a new trial. The facts in the case appear in the opinion of the court.

      James M. Smith, attorney and counsel, for appellant.

      Stickney & Shepard, attorneys, for respondent; Albert Stickney, of counsel, for respondent.
   By the Court.—Speir, J.

—The plaintiff by his deed sold certain furniture to the defendant for $2,950, to be paid in installments. The deed provided “ that if default be made in any of the payments above agreed to be made, that then the payments then made thereon-shall be forfeited to the party of the first part, and the .said goods, chattels, and effects shall be reconveyed and forfeited to him without consideration.” Certain installments appear not to have been paid, and the suit is brought to recover the furniture for non-payment of the balance then due and after an alleged demand of the defendant for the furniture. .

After the testimony was closed the defendant moved that the complaint be dismissed upon the ground that the plaintiff was not the owner of the furniture, that a judgment had been given against the owner in an action brought by her, and that no demand of the furniture had been proved by a preponderance of testimony.

The court submitted the question of demand for the furniture and whether it was made after the demand for payment and the admitted default in payment. He charged if the jury found for the plaintiff they must find a verdict in his favor for the sum fixed in the agreement, as the value of the property, which was $2,950,-after deducting the amounts paid on it by defendant $205, taking the value of the property on November 30, 1874, and in addition thereto interest as damages for detention. The defendant claims the property under the deed óf sale, and admits default in payment and the demand for payment. She denies that the demand for the furniture was made. On this last question the jury have found against her.

It was admitted on the trial that judgment in an action by one May against this defendant was entered in her favor, and that an appeal was taken therefrom to the general term by said May, and that the appeal was dismissed, and that that action was brought for the recovery of this same property. The plaintiff in this action also testified that he was not the owner of the furniture, that he made the sale as the agent of Mrs. May, and that he brought this action with her knowledge and consent arid for her benefit.

It is clear enough that the plaintiff is not the real party in interest. It is equally clear that the code abrogated the common law rule, that the right of action followed the legal title, and made the beneficial interest the sole test of the right.

With somé exceptions,—such as executors, administrators, &c.,—it expressly declares “that a trustee of an express trust, within the meaning of the section, shall be construed to include a person, with whom or in whose name a contract is made for the benefit of another” (§ 113). The question is raised, is the plaintiff a trustee of an express trust within the definition of the term in section 113 of the code % Was the contract made in his name for the benefit of another % That is the relation of the plaintiff to the owner, as shown by his own evidence in the case ; and as such he would be authorized to sue on the bill of sale in his own name although the beneficial interest was in his principal, Mrs. May.

It appears that the case of May v. Hinckley was brought on entirely different grounds from this. This is a new suit and a different and new cause of action. The effect of the dismissal of the appeal in that case was a- judgment final, and bound all the parties to the deed of sale, upon the issues therein litigated. The terms of the said agreement had been complied with on her part, and legal proceedings were at an end. The judgment .entered in that case can be no bar to this action founded upon a subsequent breach.

The judgment and order denying a new trial should be affirmed with costs.

Freedman, J., concurred.


author: By the Court.—Sedgwick, J.

text:
    MARIA ALGIE, Plaintiff and Respondent, v. FERNANDO WOOD, Defendant and Appellant.
    i. trial, conduct of.
    1. BTJBBEE OF PBOOF.

      (a) Negative to be pboved, when.
    1. When the right of action or the defense is founded on a negative allegation, the party alleging the negative must establish it.

      E. g.: A vendor of real estate sued to recover the consideration agreed to be paid by the vendee, alleging that the vendee agreed to pay $30,000, deducting therefrom all existing mortgages, liens and incumbrances on the property at the date of the deed; and alleged that the property was subject at the date of the deed to incumbrances amounting to $34,000; and that the vendee had paid $500. The action was brought to recover the balance of $5,500.
    Held,
    1. It devolved on the plaintiff to prove toe amount of the incumbrances.

      Decided November 5, 1877.
    2. It being admitted in the contract that there were, liens, proof that there were certain liens was not sufficient to establish that there were no others.

      (a) Presumption of no liens.-—In such case plaintiff cannot rest on a presumption that in the absence of the existence of liens, it will be assumed that there are none.

      (b) Facts more in defendant's knowledge.—In such case the rule which casts on a party the burden of proving such facts as are more peculiarly in his knowledge than in that of the other, does not apply.
    H. EVIDENCE.
    1. BF8 GESTA

      (a) When decíabations do not fall within the bule.
    1. Declarations made by a party to an action at the time of doing an act between him and a third person, in the absence of the other party to the action, are not admissible in favor of the party doing the act, when the doing of the act was proved in his behalf.

      (a) B is otherwise if the other party to the action proves the doing of the act.
    Before Sedgwick, Speie, and Freedman, JJ.
    Appeal from judgment entered on verdict for plaintiff.
    The complaint averred that plaintiff by deed, conveyed certain real estate to defendant for the price or sum of $30,000, which said sum the defendant agreed to pay to the plaintiff, deducting therefrom all existing mortgages, liens and incumbrances to the date of said deed, and to which mortgages, liens and incumbrances, said lots were sold subject. That the plaintiff duly delivered said deed to the defendant, on or about said ¡November 27, 1872. That said lots of land and premises were subject at the date of said deed to incumbraces, amounting to the sum of $24,000. That the said defendant paid to the plaintiff on account of said price or consideration, the sum of $500, but has failed and neglected to pay the balance thereof, amounting to the sum of $5,500, in which said last mentioned sum the said defendant is justly indebted to the plaintiff, the same being due, owing, and payable.
    The answer averred that the conveyance was made to the defendant at the request of plaintiff, for her own benefit and convenience, upon the express agreement that the defendant was to pay no consideration.
    In the course of the trial defendant’s counsel called a witness and proved by him that defendant had paid to him a $500 mortgage on the premises; he then asked the witness, “ What did Mr. Wood say at the time he paid it.” Which was objected to, the objection was sustained, and defendant’s counsel excepted.

      Moses B. Maclay, attorney, and Ira Shafer and James M. Smith, o.f counsel, for appellant, among other things urged :
    —I. The judge erred in refusing to charge the defendant’s first request to charge, to wit: to direct a verdict for the defendant on the ground that there was no proof that, after taking out all incumbrances to the date of the deed, there would be any sum due the plaintiff.
    II. We submit that the judge erred in excluding our offer to show that when Mr. Wood paid Mr. Martin, he, at the time of the payment, said he had no interest in the property, that he held the property for Mrs. Algie, and that he bought it for her benefit, expecting to be repaid out of the property. We submit that when they proved the fact that he made payment, that we have the right to show all that was said and done at that time, as a part of the transaction itself; and the authorities upon that point are so entirely familiar that it is unnecessary to cite them.

      W. McDermott, attorney, and of counsel for respondent, among other things, urged :
    —I. The defendant’s counsel moved to dismiss the complaint on the ground that the plaintiff had not proved that there were no other incumbrances on the lots than those proved. 1. The allegation in the complaint is not “that all the incumbrances on the lots were $24,000,” but that “said premises were subject at the date of said deed to incumbrances amounting to the sum of $24,000.” The answer denied this allegation; that is, it denied that the premises were subject to incumbrances amounting to $24,000, but did not allege or claim that they were subject to incumbrances to any larger amount. If the plaintiff had failed to prove that there were any incumbrances on the lots, the defendant having denied that there were any, and not having alleged that there were any, plaintiff would have been entitled to recover the entire sum of $30,000 unless limited by the demand in her complaint. 2. The burden of proof to show what incumbrances (if any), according to well settled rules, was on the defendant. All matters in reduction of the plaintiff’s claim must be proved by the defendant; it is never the duty of the plaintiff to prove matters in reduction of his claim (Hollister y. Bender, 1 Hill, 150). 3. Plaintiff did prove the incumbrances. She told defendant their amount, including mortgages, taxes, interest and assessments. If they were more, defendant should have proved them to have been more. She also produced the mortgages. 4. The defendant, by not alleging that the incumbrances were more than $24,000, admitted that they were no more than that sum.
    II. The defendant offered to prove what he said to Mr. Martin when he paid off a mortgage. It was properly excluded. Mrs. Algie was not present, and the defendant’s statement, not under oath, as to the terms upon which he took the property, was certainly not admissible.
   By the Court.—Sedgwick, J.

—The plaintiff did not attempt to prove, that the defendant expressly promised to pay the consideration, that the complaint stated, viz., $30,000, after deducting the incumbrances upon the property. On the contrary, she testified that the defendant agreed to pay the whole $30,000. Of course the action was not for this. The complaint did not claim it, nor did the plaintiff ask for it on the trial. The proof under the complaint would not have supported a verdict that $30,000 was due. The deed by itself could not justify the conclusion that $30,000 was due, for the complaint averred the contrary, and showed that the defendant had promised to pay only the difference. If the plaintiff may rely on the promise stated in the complaint, as one implied from all the circumstances, the result is the same, that she can only recover the difference, upon the implied promise to pay that.

In this case, the burden of proof was upon the plaintiff to show what this difference was, and as implied in that to show by some measure of proof that there were no other or greater incumbrances than her testimony admitted to exist. She could not rest upon a presumption of fact, that in the absence of proof to show the existence of a lien, it could be taken for granted there was none—because the agreement itself showed the understanding to be that there were liens.

ISTor was the burden upon the defendant to mitigate damage, by showing the existence of liens, for, as the plaintiff left the case, the amount of damages had not been, shown, and until there is prima facie proof of the sum due, the defendant is not called upon for proof to lessen it.

Nor was the amount of the incumbrances peculiarly within the defendant’s knowledge. The plaintiff had the same opportunities and the same interest to ascertain them.

As the plaintiff’s case involved affirmative and negative propositions she was bound to give evidence to sustain both. " To this general rule, that the burden of proof is on the party holding the affirmative, there are some exceptions, in which the proposition, though negative in its terms, must be proved by the party who states it. One class of these exceptions will be found to include those cases in which the plaintiff grounds his right of action upon a negative allegation, and where, of course, the establishment of this negative is an essential element in his case, &c.” (Greenleaf’s Ev. § 78). In this case part of the plaintiff’s proof «cannot be a presumption that there were no liens, for the reason that the agreement expressly admitted the contrary.

The plaintiff wholly failed to show the amount of unpaid taxes and assessments, going no further than to say they were not large—about $1,300—but in fact she did not know their amount. I think, therefore, that the case should have been taken from the jury upon the request of defendant’s counsel.

I am further of opinion that if the plaintiff had introduced testimony that the defendant had paid the $500 mortgage upon the premises to Martin, that the defendant would have had a right to show what he said at the time of the payment. The declarations of a party, at the time of delivering money, are a part of the res gestae. In fact, however, the defendant himself introduced the testimony that he had paid the mortgage to Martin, and his offer to show what he said at the time was an attempt to get into evidence his own declaration as to his relations to the property. I do not think that the judgment should be reversed for the exclusion of this evidence.

But I think there should be a new trial on the other ground—that the burden of proof was on the plaintiff to show what incumbrances there were on the property, and their amount. She failed to show these things, and the motion to dismiss the complaint should have been granted.

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

Speir and Freedman, JJ., concurred.


text:
    HENRY K. ADAMS, Plaintiff and Appellant, v. S. CHARLES WELSH and JOHN H. WELSH, Defendants and Respondents.
    I. Sheriff's Law.
    1. LEVY, WHAT CANNOT BE LEVIED ON.
    (66.) Money collected by a sheriff* under an execution cannot, while it remains in his hands, be levied on by him under an execution against the party in whose favor it was so collected.
    2. SECTION 193 OF THE CODE OF PROCEDURE.
    1. Payment to sheriff by debtor of a judgment debtor against whom he holds an execution.
    1. Authority of sheriff over the money received.
    (66.) Has no authority to apply it to the satisfaction of an execution issued against the plaintiff in the execution upon which the payment was made.
    2. Payment to Sheriff, When not a Discharge.
    1. Assignment.—After the original creditor has assigned the debt, the debtor is no longer indebted him; therefore, a payment thereafter made by such debtor to a sheriff holding an .execution issued on a judgment recovered against his original creditor, does not fall within the provisions of section 193, and is not a discharge of the debt.

      Decided November 5, 1877.

      (a.) Notice of Assignment.—This although he had no notice of the assignment before such payment.
    Before Speir and Freedman, JJ.
    An appeal from an order of the special term directing the sheriff of New York county to satisfy an execution issued to him in this action against the property of the defendants, upon the ground that the defendants have paid on account of another execution issued against the plaintiff by virtue of section 293 of the Code of Procedure.
    The defendants on April 27, 1877, recovered, in the court of common pleas, a judgment as executors of George W. Welsh against Henry K. Adams for the sum. of $496.15, and on the same day issued execution thereon against him to the sheriff of the county of New York for the amount of the judgment and costs. On April 30, 1877, Henry K. Adams, the plaintiff in this action, obtained a judgment against the defendants for the sum of $134.20, and by his attorney gave notice of the entry of the judgment to defendants attorney. After the receipt of this notice the defendants, on April 30, 1877, paid to the sheriff, under section 293 of the Code, for and on account of Adams on the execution issued against him in the court of common pleas, the sum of $134.20, the full amount of the judgment recovered by him, and took a receipt therefor from the sheriff. Thereafter, on June 1, 1877, an execution was issued to said sheriff on the judgment recovered by said Adams. This is the execution to compel the satisfaction whereof by the sheriff this motion is made.

      E. Platt Johnson, attorney, and of counsel for appellant, upon the points stated in the head-notes, urged :
    —I. A voluntary payment, under section 293 of the Code, on account of an execution issued against a person to whom the parties paying claim to be indebted, if made after an assignment in good faith, by the person against whom the execution is issued, of the debt intended to be paid, will not avail the parties paying as against the assignee, or constitute a defense in proceedings by him against them for the recovery of the debt so assigned to him (Robinson v. Weeks, 1 Code R. N. S. 311, and 6 How. 161; Richardson v. Ainsworth, 20 How. Pr. 521; Huse v. Guyot, 3 Sup. Ct. [T. & C.] 790: Countryman v. Boyer, 3 How. Pr. 386; Baker v. Kenworthy, 41 N. Y. 216, approving Richardson v. Weeks and Richardson v. Ainsworth).
    II. The fact that the defendants had no notice of the assignment until after the payment to the sheriff was made, makes no difference (Robinson v. Weeks, 1 Code R. N. S. 311, and 6 How. 161; Richardson v. Ainsworth, 20 How. Pr. 521; Huse v. Guyot, 3 Sup. Ct. [T. & C.] 790).

      Dennis Quinn, attorney, and of counsel for respondents, upon the questions determined by the court, urged :
    —I. A payment made under sections 294-207 of the Code of Procedure, to a judgment creditor, of a debt due by a third party, to the judgment debtor, in the absence of notice of the assignment of the debt, is a good and valid payment, and protects the third party from the obligation of paying a second time (Gibson v. Haggerty, 37 N. Y. 555; Lyman v. Cartwright, 3 E. D. Smith, 118; Mallory v. Norton, 21 Barb. 424; Huntington v. Potter, 32 Id. 300; Muir v. Schenck, 3 Hill, 228; Robinson v. Weeks, 6 How. 161).
    II. A payment made in conformity with section 203, the language of which is broad and full, should have equal force and effect given to it as a payment made under the provisions of section 294. It is confidently claimed, on the part of the respondents, that the words used in section 293 expressly authorize such a payment as the one made by them. It cannot be imputed to the legislature that this section was enacted to entrap the unwary ; on the contrary, the fair interpretation of the words used is obviously to enable a debtor to pay, without additional expense or litigation, a just and undisputed debt (Muscott v. Woolworth, 14 How. Pr. 480).
    III. It is also contended that, on April 30, 1877, after notice regularly given of the entry of the judgment in this court against S. Charles Welsh and John H. Welsh, the respondents, and in the absence of notice of the assignment of the judgment, the defendants, or either of them, could make a good and valid payment of the amount thereof to Henry K. Adams, the appellant, and that such payment would be operative and valid against his assignee. It is further contended that a payment to the sheriff on that day is equivalent, in contemplation of law, to a payment to Adams himself. Notice was intended to protect the debtor, not the creditor, and the assignee of the judgment withheld notice of the assignment at his own risk and peril (Baker v. Kenworth, 41 N. Y. 218; Robinson v. Weeks, 6 How. 161; Muir v. Schenck, 3 Hill, 228; Gibson v. Haggerty, 37 N. Y. 555; Lyman v. Cartwright, 3 E. D. Smith, 118; Hermans v. Ellworths, 64 N. Y. 159).
   By the Court.—Speir, J.

—The rule has been uniform in this State and in the United States courts, that money collected while in the hands of the sheriff is not subject to levy upon an execution against the party in whose favor it .was collected. The section of the Code under which the order was made provides, that after the issuing of the execution against property, any person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as shall be necessary to satisfy the execution, and the sheriff’s receipt shall be a sufficient discharge for the amount so paid. It is insisted by the defendant’s counsel that under this section the sheriff was authorized to satisfy the demand against him for the money collected, by applying it to the payment on the execution in his hands against the party to whom the money was due. I do not think this is the construction of the statute. The debtor is to pay his debt to the sheriff, and take his receipt therefor to discharge his debt. This does not authorize the sheriff to apply the money upon another execution. A voluntary payment by a debtor, without his creditor’s authority, cannot be upheld, whether it be to a creditor of his creditor or to any other person. It would be exceedingly anomalous bo permit a debtor to determine which of the creditors of his creditor shall be first paid, and select some friend of his own as deserving his favor. Johnson’ s claim to favor as the creditor of Adams was in law equal to that of anybody else. This construction of the statute has, in terms, been settled in Baker v. Kenworthy, 41 N. Y. 215, and although the case does not present the same facts, the principle is established.

But the defendants do not come within the description of persons named in the section. The words are, “any person indebted to the judgment debtor may pay,” &c.. The defendants cannot be said to be indebted to Adams when the latter had assigned all his interest to Johnson. The language of the section cannot be enlarged by applying it to any case other than that provided for by the statute itself. Knowledge of the assignment is immaterial, the fact alone determines the case contemplated. The assignment was made before any judgment was recovered, and is valid if founded upon professional services rendered and to be rendered. The consideration is meritorious. There is nothing in the papers showing any fraud.

The order appealed from must be reversed with costs.

Freedman, J., concurred.