text:
    James D. Yeomans, Respondent, v. George H. Bell, Appellant.

      Misrepresentations vitiating a contract of sale — vendor’s lien — when, by reason of the venders fraud, there is no waiver thereof.

    The misrepresentation which will vitiate a contract of sale and prevent a court of equity from enforcing it, must not only relate to a material matter constituting an inducement to the contract, but must relate to a matter respecting which the complaining party did not possess at hand the means of knowledge, and must be a misrepresentation upon which he relied, and by which he was actually misled to his injury.

      Where the misrepresentation is the mere expression of an opinion as to the value of the property offered for sale, it will not furnish evidence of fraudulent intent, but, if the representation is in regard to an extrinsic fact, affecting the condition, quality or value of the subject of the contract, and the purchaser relies thereon, and the same is false, then an action based upon the fraud may be maintained.
    A vendor’s lien upon the land sold should be sustained whenever he has taken the mere personal security of the purchaser only, and any bond, note or covenant given by the vendee alone is to be considered as intending only to countervail the statement of the receipt for the purchase money contained in the deed, or to show the time and manner in which the payment is to be made, unless there is an express agreement between the parties to waive the equitable lien ; and on the other hand the lien is to be considered as waived whenever any security is taken on land, or otherwise, for the whole or any part of the purchase money, unless there is an express agreement that the equitable lien on the land shall be retained, but where a vendor has been induced to waive his lien as such by reason of a fraud practiced upon him by the vendee such rule of waiver will not apply.
    Appeal by the defendant, George H. Bell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 21st day of April, 1893, upon a decision of the court rendered after a trial at the Erie Special Term.

      Tracy O. Becker, for the appellant.

      Adelbert Moot, for the respondent.
   Haight, J.:

This action was brought to recover the sum of $5,000, with interest thereon from November 1, 1887, and that the same be adjudged to be a lien upon certain real estate, etc.

On or about the 15th day of October, 1887, the plaintiff sold to the defendant a farm, with certain personal property thereon, located in the town of Aurora, county of Erie, for the sum of $20,600, to be paid as follows : $6,500 by assuming a mortgage then existing upon the premises, $100 in cash, $5,000 on the 1st day of November, 1887, $2,000, with interest, in three months from the first day of November, $2,000 in two years from the first day of November secured by mortgage ippon the premises, and the balance by assigning to' the plaintiff $5,000 par value of the capital stock of the R. W. Bell Manufacturing Company.

The trial court has found “ that to induce the plaintiff to accept such $5,000 in stock of the R. W. Bell Manufacturing Company and to enter into said contract the defendant did falsely represent to the plaintiff that said stock was worth $1.10; that said R. "W. Bell Manufacturing Company was in good condition and only owed $25,000, which was k mortgage -upon its real estate, and that such stock had paid a dividend of six per cent per annum since said R. W. Bell Manufacturing Company was organized in 1881, with the •exception of one year when there was a surplus which was used in improvements. That in fact said R. "W. Bell Manufacturing Company was not in good condition; that it was losing money; that it owed large sums of money over and above said mortgage of $25,000, and that it had not paid a dividend of six per cent per annum from its organization in 1881, excepting one year; that said'stock had never paid but one dividend, and that a semi-annual dividend of only three per cent in the year 1886; that the plaintiff relied upon said false statements of the defendant and believed them to be true "* * * accepted such $5,000 in stock in part payment of said land and conveyed the premises as aforesaid to the defendant George H. Bell by a good and sufficient deed then made and delivered to said Bell. * * * That thereafter, and shortly before the commencement of this action, December 9th, 1891, the plaintiff discovered that said representations of the defendant concerning said stock were untrue, and thereupon this plaintiff tendered said defendant such $5,000 in stock and offered to repay to the defendant what he had paid for said land and requested defendant to convey said land to this plaintiff, but the defendant refused to accept such stock or convey the land to the plaintiff for the amount which the defendant had paid therefor.”

As a conclusion of law the court ordered judgment for the plaintiff for the relief prayed for in the complaint, with costs, etc. The findings of the trial court as to the representations made are in accordance with the testimony of the plaintiff and one Eerguson, who was the agent who made the sale. Their testimony in this regard is controverted by the defendant, but the question of credibility was for the trial court, and in this case we must follow the findings.

It appears from the testimony of the bookkeeper of the company that on the 1st day of October, 1887, the liabilities were $387,051.03, and resources $357,656.83, and that at that time the loss was $29,397.20 ; that on the first day of January thereafter the loss had increased to $68,713.55 ; that the loss was distributed through the year 1887, and the great difference appearing between the first day of October and the first day of January thereafter was in a measure due to the charging to the profit and loss account the claims that were worthless. On the 1st day of October, 1887, it appears that the company was owing, aside from its capital stock, the sum of $137,051.03, so that if the representations were made as testified to by the plaintiff and his witness Ferguson, it is quite apparent that they were untrue.

It is claimed, however, that the plaintiff had the means at hand of discovering the value of the stock other than the representations-of the defendant, and that in the negotiation he did not use the-means of knowledge which a prudent man should have done under the circumstances. The rule is doubtless well stated by Justice-Field in delivering the opinion of the court in the case of Slaughter’s Administrators v. Gerson (13 Wall. 379-383). lie says: “ The misrepresentation which will vitiate a contract of sale and prevent a court of equity from aiding its enforcement must not-only relate to a material matter constituting an inducement to the-contract, but it must relate to a matter respecting which the complaining party did not possess at hand the means of knowledge, and it must be a misrepresentation upon which he relied and by which he was actually misled to his injury.” To this we will add, that where the representation is the mere expression of an opinion as to-the value of the property offered for sale it will not furnish evidence of fraudulent intent, but if the representation is in regard to an intrinsic fact affecting the condition, quality or value of the subject of the contract, and the purchaser relies thereon, and the same is false, then an action based upon the fraud may be maintained. (Schumaker v. Mather, 133 N. Y. 590; Ellis v. Andrews, 56 id. 83.)

The representations alleged to have been false were made to the plaintiff by the defendant, who was the president of the company. It was the practice of the bookkeeper to make a monthly statement to the officers of the company showing its financial condition. It is, therefore, apparent that the defendant knew the condition of the. company at the time' the representations were made. The representations had reference to the business and condition of the company, which was of vital importance in determining the value of the stock. The facts in reference to the business and condition doubtless appeared upon the books of the company, but in order to. ascertain the facts from the books an examination of the accounts-by an experienced accountant and bookkeeper, involving time and labor, was required, and it appears to us it cannot be said that the-plaintiff possessed the means at hand of knowing the facts.

Upon making the sale, the plaintiff accepted in payment of the-purchase price a mortgage upon the premises for the sum of $2,000,, as well as the assignment of the stock in question. It is now claimed that this was a waiver of the vendor’s lien. The rule as stated in Fish v. Howland (1 Paige Ch. 20-30) is that the vendor’s lien should be sustained whenever “ he has taken the mere personal security of the purchaser only, and to consider any bond, note or covenant given by the vendee alone as intended only to countervail the-, receipt of the purchase money contained in the deed, or to show the time and manner in which the payment is to be made, unless there-is an express agreement between the parties to waive the .equitable lien; and, on the other hand, to consider the lien as waived whenever any security is taken on the land, or otherwise, for the whole or any part of the purchase money, unless there is an express agreement that the equitable lien on the land shall be retained.”

As we have seen, a mortgage was given for a part of the purchase-money, and the stock in question of a corporation was assigned for another portion of the consideration. ¥e shall, therefore, assume; for the purposes of the argument, that under the contract, if valid,, the plaintiff’s lien as vendor would be deemed waived; but, as we-have seen, the plaintiff charges that he was induced to enter into the-contract by reason of the false and fraudulent representations made; by the defendant; in other words, that the contract was induced by fraud, and the trial court has so found. If so, he was induced to-waive his lien as vendor by réason of the fraud practiced upon him. "We think it apparent, therefore, that the rule of waiver invoked, has no application where the contract was so induced. (Baker v. Lever, 67 N. Y. 304; Seymour v. McKinstry, 106 id. 230; Hammond v. Pennock, 61 id. 145; Krumm v. Beach, 96 id. 398; Bradley v. Bosley, 1 Barb. Ch. 125.)

The judgment should be affirmed, with costs.

Dwight, P. J., Lewis and Bradley, JJ., concurred.

Judgment appealed from affirmed, with costs.

        Sie.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    Johnston W. Beacom, Appellant, v. Lucius Rogers, Respondent.

      Enticement of a non-resident within the jurisdiction of a court — service of papers upon him set aside.

    Upon the appeal from an order setting aside the service of a summons, complaint and order of arrest in an action, and dismissing the action, with costs, and from the judgment entered thereon, the papers showed that the defendant, a nonresident of the State of New York, was enticed into the State for the purpose of procuring his arrest and serving the summons and complaint upon him.

      .Held, that such order properly vacated and set aside the service of the summons as well as the service of the order of arrest;
    'That it should not have dismissed the action, with costs, when the summons was properly issued to the sheriff and the order of arrest obtained upon sufficient papers and properly delivered to the sheriff;
    'That the service was improper only because of the enticement of the defendant within the jurisdiction of the court.
    Appeal by the plaintiff, Johnston "W. Beacom, from a final judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cattaraugus on the 22d day •of November, 1893, upon the decision of the court rendered after a trial at the Cattaraugus Special Term, and also from an order made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on the 22d day of November, 1893, granting the defendant’s motion to set aside the service on the ■defendant of the summons and complaint and order of arrest, and •dismissing the action.

      Crowley <& Piley, for the appellant.

      William, H. Henderson, for the respondent,
   Haight, J.:

Tlie appeals from the judgment and from the order were separately taken, and we have been furnished an appeal book upon each appeal. There was but one action and both appeals are in that action, and we shall consequently consider them together.

The papers show that the defendant was a resident of Smethport, McKean county, Penn.; that he was enticed within this State for the purpose of procuring his arrest and the service of the summons and complaint.

The order appealed from properly vacated and set aside the service of the summons, as well as the service of the order of arrest, but it should not have dismissed the action, with costs. The summons was properly issued to the sheriff; the order of arrest, we must assume, was obtained upon sufficient papers and was properly delivered to the sheriff. The service only was improper because of the enticement of the defendant within the jurisdiction of this court.

In Higgins v. Dewey (27 Abb. N. C. 81; S. C., 34 N. Y. St. Repr. 692) the order set aside the service and vacated the order of arrest. On appeal the order was reversed in so far as it vacated the order of arrest.

In Metcalf v. Clark (41 Barb. 15) the Special Term set aside the summons. On review it was held that the service only should have been set aside.

The order contained no direction for the entry of final judgment, and we think the judgment entered was irregular and that it could have been set aside on motion.

The appeal from the order was from the whole thereof. The appellant only succeeds in part; no costs should, therefore, be allowed.

The appeal from the judgment should be dismissed and the judgment vacated, without costs to either party. . The appeal from the order should be modified by striking therefrom the clause, and the said action is dismissed, with costs,” and, as so modified, affirmed, without costs of this appeal to either party.

Dwight, P. J., Lewis and Bradley, JJ., concurred.

Appeal from the judgment dismissed and judgment vacated, without costs to either party.

Order appealed from modified by striking therefrom the clause, “ and the said action is dismissed, with costs,” and, as so modified, affirmed, without costs of this appeal to either party.


text:
    T. Scott Thacher, as Executor, etc., of Otis Thacher, Deceased, Appellant, v. Hope Cemetery Association, Respondent.

      Agreement by a cemetery association to appty the proceeds of sales of its lots to the payment of a loan.

      A contract entered into between a cemetery association and a person loaning such association the sum of $800 provided: “ It is agreed, upon the part of the said association, that one-half of the receipts from the sale of lots shall be applied exclusively to the payment of the sum of $2,500, loaned to said association by divers persons, of which the said sum of $300 forms a part, and for the payment of the interest thereon.”
    The amount which such association succeeded in raising by loan was $2,200, and not $2,500.

      Held, that the person loaning $300 to such association was entitled to three-twenty-seconds of one-half of the receipts from the sale of lots in such ■cemetery.
    Appeal by the plaintiff, T. Scott Thacher, as executor, etc., of ■Otis Thacher, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the ■county of Steuben on the 21st day of February, 1893, upon the report of a referee.

      Wesley Brown, for the appellant.

      J. H. Stevens, for the respondent.
   Haight, J.:

This action was brought on the 5th day of October, 1883, to recover the sum of $300 and interest thereon from August 1, 1864. The defense is that more than six years had elapsed after the plaintiff’s cause of action accrued before this action was commenced, and that the plaintiff’s cause of action was, therefore, barred by the Statute of Limitations.

On the 1st day of August, 1864, the trustees of the defendant organized by the election of a president, vice-president, secretary and treasurer, and then ordered that the sum of $2,500 be borrowed for the purpose of purchasing land for a cemetery and improving the same, and that the president and treasurer be authorized to issue certificates of indebtedness to such individuals by whom the money -or any part thereof may be loaned, specifying the amount loaned by such individuals and containing an agreement, on the part of the association, to pay seven per cent interest for the use of such money, and to apply one-half of the receipts from the sale of lots to repay the money. Thereupon, subscriptions for the loan were received and certificates issued therefor to the amount of $2,200. Of that sum the plaintiff’s testator loaned $300 and received therefor the following:

“ No. 25. We certify that Otis Thacher has this day loaned to Hope Cemetery Association three hundred dollars. It is agreed, upon the part of the said association, that one-half of the receipts from the sale of lots shall be applied exclusively to the payment of the sum of $2,500 loaned to said association by divers persons, of which the said sum of $300 forms a part, and for the payment of the interest thereon, said interest to be paid annually and the receipts to be so applied, shall be distributed on the first day of July, and on the first day of January in each year until said sum shall be fully paid.
“August 1, 1864. “ A. L. SMITH, President,
“M. ADSIT, Treasurer.

It further appears that the defendant, with the avails of the loan,purchased lands and improved the same, dividing it into lots for the1' burial of the dead, and that between the time of the issue of said certificates and the 1st day of July, 1877, lots were sold for cash to the amount of $5,479.34, which amount was received by the defendant prior to that date, and that during the same period lots were sold to holders of the certificates of indebtedness, who were permitted to use their certificates in payment therefor as cash ; that the certificates so used in the purchase of lots, and which were surrendered up to the defendant and canceled on and- prior to the 1st day of July, 1877, amounted to the sum of $1,575, leaving outstanding and unpaid on that date, including the plaintiff’s certificate, $625 in amount only of the original loan of $2,200.

The appellant contends that of the amount of cash so received, he is entitled to but three-twenty-fifths of one-half thereof as shown by the following statement:

Dates. -Amount money ' received. Thei 3 2 35
January 1,’65.......... $102 00 $5100 $6 12
July 1,’65............. 206 00 103 00 12 36
January 1, ’66.......... 86 00 43 00 5 16
July 1, ’66............. 108 00 54 00 6 48
January 1,’67.......... 166 00 83 00 9 96
July 1, ’67............. 235 00 117 50 14 10
January 1, ’68.......... 100 00 50 00 6 00
July 1,’68............. 137 50 68 75 8 25
January 1,’69.......... 88 50 44 25 5 32
July 1,’69............. 134 00 67 00 8 04
January 1, ’70.......... 303 00 151 50 18 18
July 1,’70............. 203 10 101 55 12 18
January 1, ’71.......... 263 50 131 75 15 81
July 1, ’71............. 519 00 259 50 31 14
January 1,’72.......... 168 00 84 00 10 08
July 1,’72............. 319 00 159 50 19 14
January 1, ’73.......... 163 00 81 50 9 78
July 1, ’73............. 200 00 100 00 12 00
January 1, ’74.......... 389 70 194 85 23 38
July 1,’74............. 155 00 77 40 9 30
January 1, ’75.......... 217 76 108 88 13 06
July 1,’75............. 140 50 70 25 8 43
January 1, ’76.......... 210 00 105 00 12 60
July 1,’76............. 200 00 100 00 12 00
January 1, ’77.......... 385 00 192 50 23 10
July 1,’77............. 279 78 139 89 16 78
$5,479 34 $2,739 67 $328 76

Amount applicable to plaintiff’s certificate July 1, 1877, $328.76, which, taken from amount of plaintiff’s certificate and interest to that date, $571.25, leaves due on plaintiff’s certificate at that date $242.49, with interest from that time.

The difficulty, however, with his position is that he takes no account of the $1,575 in certificates that have been surrendered up and retired from time to time on the purchase of lots, and that at this time there was only outstanding of such certificates $G25 in amount. By treating these retired certificates as cash and as reducing the loan in the amount of the certificates so retired, the amount on hand July 1, 1877, available for the payment of the plaintiff’s certificate, would be $1,129.25, nearly double the amount required to pay the plaintiff’s claim. The referee appears to have so treated these certificates. • Ilis right so to do must be determined from the provisions of the contract: “ It is agreed upon the part of' the said association that one-lialf the receipts from the sale of lots shall be applied exclusively to the payment of the sum of $2,500 loaned to said association by divers persons, of which the said sum of $300 forms a part, and for the payment of the interest thereon.”

It does not appear to us that the $2,500 mentioned in the certificate affects the question. A loan of $2,500 had been ordered by the association, but it had succeeded in getting only $2,200. The certificates had been prepared under the supposition that the full loan would be obtained, and if it had been, then Thaclier, loaning $300 of the $2,500, would have been entitled to three-twenty-fifths of one-lialf of the receipts of the association from the sale of lots, to apply in the reduction of the amount loaned by him. But only $2,200 was loaned. One-lialf of the receipts from the sale of lots was required to be set apart exclusively for the payment of the loan. He thus would be entitled to tliree-twenty-seconds of one-half of the receipts. One-lialf of the receipts from the sale of lots is to be applied upon the payment of the loan, whatever the amount thereof may be. If the plaintiff’s testator had been the only subscriber to the loan, and the amount of such loan was the $300 loaned by him, would_ it be claimed that, even though lots had been sold amounting to upwards of $5,000, that he could not have recovered the amount of his loan for the reason that it was not yet due % To so construe the contract would require the interpolation of a provision to the effect that tliree-twenty-fifths of one-half of the receipts from the sales shall be applied to the payment of the loan, instead of one-half of such receipts. It does not appear to us that such a construction should prevail; that adopted by the referee is more rational and bet•ter in accord with the views expressed by the court on a former .review of this case. (126 N. Y. 507.)

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Lewis, J., concurred ; Bradley, J., not sitting.

Judgment appealed from affirmed, with costs.


author: Dwight, P. J.:

text:
    In the Matter of the Application of Uriah Harmon for Leave to Issue Execution against the Real Estate of David L. Hallock, Deceased.

      Lien of a judgment — duration thereof under the Revised Statutes, the Code of Procedure, § 282, and the Code of Oivil Procedure, § 1251 —judgments, by which law governed.

    The duration of the lien, of a judgment on real property in the State of New York was, prior to 1851, limited by the Revised Statutes to ten years after the filing of the judgment roll, as to subsequent purchasers and incumbrancers only, and not as to a judgment debtor or his heirs or devisees. By section 282 of the Code of Procedure, as amended in 1851 (such amendment superseding and repealing by implication the provisions of the Revised Statutes in relation to the duration of the lien of a judgment), and by section 1251 of the present Code of Civil Procedure, the limitation of ten years was made general, without restriction to purchasers or incumbrancers, thus terminating the lien of a judgment at the end of ten years after the docketing of the same in the county where the judgment roll was filed as to all persons interested in the real estate affected. Where a judgment was recovered prior to the enactment of the Code of Civil Procedure, the duration of its lien is not regulated by the provisions thereof.
    Appeal by Uriah Harmon, a judgment creditor, from an order of the Surrogate’s Court of Cayuga county, entered in the Cayuga County Surrogate’s Court on the 5th day of December, 1892, denying his application for leave to issue an execution upon a certain judgment held by him.

      J. JB: Declter, for the appellant.

      Jno. A. Dutton, for Martha A. Rufesell, respondent.
   Dwight, P. J.:

The proceeding was by petition in the Surrogate’s Court of Cayuga county to obtain a decree, under section 1380 of the Code of Civil Procedure, granting leave to the plaintiff to issue an execution against real property of David L. Hallock, deceased, situate in that county, for the enforcement of a judgment in favor of the plaintiff, claimed to be a lien thereon. The only question presented is whether the judgment was a lien on the property mentioned at the time of the application.

The judgment in question was a judgment of the Supreme Court, recovered in Wayne county, and the judgment roll was filed and the judgment docketed in that county August 27, 1873. A transcript of the judgment was filed and the judgment docketed in Cayuga county November 1, 1883. The judgment debtor, David L. Hallock, died April 11, 1884, seized of the real estate described in the petition, and leaving four children his sole heirs at law, who, with the administrator of his estate, were brought into this proceeding by citation. No one appeared to contest the granting of the petition, except the respondent Martha A. Russell. She is not mentioned by that name in the petition nor in the citation, though one of the heirs is named in both as Martha A. Miller, and it may be that she has’ changed her name since the citation was issued; otherwise, we are not informed how or why she became a party to the proceeding. There is a statement in the printed brief of her counsel that she became a purchaser of the real estate in question at a judicial sale in 1888, but there is no evidence to that effect in the record before us.

The duration of the lien of a judgment on real property has always been the subject of statutory regulation in this State. Under the Revised Statutes the duration of such lien was limited to ten years after the filing of the judgment roll, as to the subsequent purchasers and incumbrancers only, and not as to the judgment debtor or his heirs or devisees. (2 R. S. 359, §§ 3 and 4; 2 Edm. 371.) The effect of this provision was not changed by that of the original Code of Procedure of 1848 (§ 237) nor by that of the Code of Procedure of 1849 (§ 282), as it was originally enacted. But by the amendment of that section in 1851 the limitation of teii years was made general, without restriction to purchasers and incumbrancers, thus, apparently, terminating the lien of a judgment at the end of “ ten years from the time of docketing the same in the county where the judgment roll was filed ” as to all persons interested in the real estate affected. And such, is, undoubtedly, the effect of the provision of the Code of Civil Procedure (§ 1251) as to all judgments thereafter rendered.

The judgment in question here was rendered before the enactment of the Code of Civil Procedure, and the duration of its lien was, therefore, not regulated by the provision last mentioned, but it was, undoubtedly, regulated by the provision of the Code of Procedure (§ 282, supra), as amended in 1851, and that is, it seems, equally fatal to this proceeding.

As we have seen, the Revised Statutes limited the duration of the lien to ten years only as to subsequent purchasers and incumbrancers. The original Codes of 1848 and 1849, while they prescribed the mode of docketing a judgment and obtaining a lien, imposed no limit to the duration of such lien, but left that to be regulated by the provision of the Revised Statutes. On the other hand, the amendment of 1851 re-enacted the limitation of ten years, but omitted the restriction of such limitation to the case of purchasers and incumbrancers. The new enactment covered the whole ground, and must be held to have superseded, and by implication repealed, the provisions of the Revised Statutes. After the amendment of 1851 the only provision of statute which gave to any judgment a lien on real estate was section 282, as amended; and it gave such lien, in any case, only for the period of ten years after the original docketing.

It follows that the judgment sought to be enforced in this proceeding had ceased to be a lien on the real estate described in the petition before the proceeding was commenced, and the application was, therefore, properly denied.

The decree appealed from must be affirmed.

Lewis, Haig-i-it and Bradley, JJ., concurred.'

Order of the surrogate of Cayuga county appealed from affirmed, With ten dollars costs and disbursements.


author: Parker, J.:

text:
    Jacob London and Another, Appellants, v. Wilbur F. Martin and Others, Respondents.

      Bight of a failing debtor to prefer creditors — action to set aside transfers ofpt'op&rty by a debtor — contradiction between the findings and the decision.

    A failing debtor may practically prefer any of bis creditors to as great an extent as Ms property permits, provided he does it by giving mortgages and bills of sale, or confessing judgments, instead of expressing such preference in the terms of a general assignment for creditors, which the statute alone condemns.
    A trial judge made, at the request of one of the parties, findings which, if supported by the evidence, would require a determination that certain transactions were fraudulent, but the court, in fact, decided that the transactions complained of were honest and fair.

      Held, that such findings, not being authorized by the evidence, did not require a reversal of the judgment.
    Appeal by the plaintiffs, Jacob London and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 21st day of November, 1893, upon the decision of the court rendered after a trial at the New York Special Term.

      F. J. Myers, for the appellants.

      Benyarrwn M. Bm/Ues, J. O. Oloyd, Wm. J. Underwood and Wm. F. Timelier, for the respondents.
   Parker, J.:

After the evidence of both parties had been presented to the court, it reached the conclusion that the assignment, which this action was brought to set aside as fraudulent and void as against the creditors of the assignor, was, in fact, made and executed by the debtor, with the honest intent and purpose of providing that his estate should be appropriated in payment, so far as the same would go, of all his debts.

The findings of fact made by the court as the basis upon which it founded its conclusions of law entirely justify them, and liad the trial judge stopped there not a single question would have been presented which would have even justified the appellants in presenting an argument thereon to an appellate court. But, at the request of the plaintiffs’ counsel, the court made some findings, inadvertently, as we think, which, without explanation and additions, would have required a different conclusion. Findings, which, if supported by the evidence in the form in which they are made, come within the rule established in Coleman v. Burr (93 N. Y. 17), and require a determination that the inference of fraud was inevitable from the facts found, notwithstanding the finding of the trial court that the transactions complained of were honest and fair. These findings read as follows:

“Fourth. That on the 27th day of October, 1891, Wilbur F. Martin made and executed to George S. Martin a bill of sale of his stock of merchandise in trade of his business in the city of New York, for the alleged consideration of eighteen hundred dollars ($1,800), no part of which was paid. -
Fifth. That the consideration of $1,800, named in the bill of sale, was to be paid by the said George S. Martin to the said Wilbur. F. Martin out oi the proceeds of the sale of the said merchandise, as they should from time to time be made.
“Sixth. That on the 27th day of October, 1891, Wilbur F. Martin made and executed his certain bond to Adam O. Martin, as executor of Hannah S. Martin, deceased, to secure the payment of the sum of six thousand dollars ($0,000) one year after the date thereof.
“Seventh. That on the 27th day of October, 1891, Wilbur F. Martin made and executed a mortgage, dated the 27th day of October, 1891, upon the certain premises No. 223 "West Forty-ninth street, New York city, belonging to him, to secure the payment of the above-mentioned bond; which mortgage was recorded in the office of the register of the city and county of New York on the 27th day of October, 1891.
Eighth. That on the 27th day of October, 1891, Wilbur F. Martin assigned to Adam O. Martin, as executor of Hannah S. Martin, deceased, the bond and mortgage of Emma J. Schober, made to secure the payment of $4,400, upon which the sum of five hundred dollars ($500) had been paid.
Ninth. That Wilbur F. Martin contemplated making an assignment on the 26th day of October, 1891, and, as part and parcel of such assignment, intended to prefer certain of his creditors.
Tenth. That Wilbur F. Martin consulted with his counsel, Mr. Oloyd, and, upon his advice, made the bond and mortgage and assignment of bond and mortgage to Adam O. Martin, and bill of sale to George S. Martin, at the same time and session that the general assignment was made.
“ That all of the said papers were part and parcel of one scheme to prefer certain creditors and make a general assignment by the said Wilbur F. Martin for the benefit of his creditors.
Eleventh. That at the time of the making of the said assignment Wilbur F. Martin had other personal property, consisting of household furniture and chattels and money in bank, which the said Wilbur F. Martin appropriated to his own use, and which he, at the time of making such assignment, had no intention of conveying in and by said assignment.
T%oelfth. That the intention of the said Wilbur F. Martin was to exclude from the operations of his assignment, by means of bonds and mortgages and assignments of mortgages, the premises No. 223. West Forty-ninth street, and the bond and mortgage so assigned to Adam G. Martin; and further, the stock and merchandise in trade then in possession, by transferring the same to George S. Martin by the bill of sale aforesaid.
“ Thirteenth. That Wilbur F. Martin only intended to transfer for the benefit of his creditors, by the general assignment, the. accounts due. him by sundry debtors created and made in his business.”
Fifteenth. That the transfer of the stock in trade by the bill of sale by Wilbur F. Martin to George S. Martin, was made for the purpose of preventing the creditors reaching the said stock in trade, and to prevent such stock in trade from passing under the general assignment.”
wSeventeenth. That the mortgage and assignment of mortgage made by Wilbur F. Martin, aforesaid, were recorded by Mr. Cloyd on the 27th day of October, 1891; and the general assignment made at the same time with the aforesaid mortgage and assignment of mortgage was recorded on the 28th day of October, 1891.
“ Eighteenth. That the bill of sale of the stock in trade made by Wilbur F. Martin to George S. Martin was made and delivered at the same time with the several other papers.
Nineteenth. That the transfer of the stock in trade made by Wilbur F. Martin was made for the purpose of placing the same beyond the reach of his creditors.
“ Twentieth. That the said Wilbur F. Martin was 'wholly insolvent at the time of the transfers made by him aforesaid.
Twenty-first. That the indebtedness of Wilbur F. Martin on the 27th day of October, 1891, amounted to the sum of over forty-one thousand ($41,000) dollars; and that the amount of money which Elwood Donnelly, the assignee, has collected on the day of , 1893, amounts to the sum of not over $,6,000.
Twenty-second. That the property so assigned and transferred by the said Wilbur F. Martin, by the instruments hereinbefore mentioned, included all of the property of the said Wilbur F. Martin, and deprived him of the means of paying or satisfying the claims of these plaintiffs in part' or in whole.”

It was our first impression that these findings called for a reversal of the judgment, but an attentive examination of the evidence has persuaded us that a number of the findings, while containing a grain of truth, yet, by reason of things omitted, really state an untruth. Briefly as may be, we shall present the reasons why we think the judgment should not be reversed, notwithstanding these findings. In the first place let us speak of findings 6, 7, 8, 9 and 10.

It was not questioned on the trial, indeed, it was admitted, that Wilbur F. Martin was, and for many years had been, indebted to the estate of which Adam C. Martin was the executor, in the sum of $6,000. Upon the trial the assignor frankly admitted that his purpose m executing the bond and mortgage upon the property upon which he resided, and in assigning, as further security, the Schober bond and mortgage, was to secure beyond all hazard payment of this just debt; and that at the time of executing these papers he knew that he would be obliged to make a general assignment for the benefit of his creditors. Of his intention in that regard Adam O. Martin, the executor, had no knowledge whatever. Indeed, he received the securities before he knew that his brother contemplated making an assignment.

It appears now that he decided wisely in securing his mother’s estate by means of bonds and mortgages, rather than by preferring the estate in the general assignment. The sum realized has been so small that the statute limiting the amount of preferences would have operated to cut down the amount which the assignee would have been able to pay the executor to a sum far less than that actually due. But we need not concern ourselves with that fact, nor with a discussion of any of the interesting questions which have been presented by a similar state of circumstances, for they were put at rest by the decisions of Spelman et al. v. Freedman (130 N. Y. 421); Central National Bank v. Seligman (138 id. 435); Abegg v. Bishop (142 id. 286).

A failing debtor may now practically prefer his creditors to as great an extent as his property permits, provided he does it by giving mortgages and bills of sale, or confessing judgments, instead of putting it in the general assignment, which it is said the statute alone condemns.

"We pass these findings then to consider the fourth, fifth, fourteenth, sixteenth and seventeenth. They assert in substance that on the morning preceding the execution of the general assignment the assignor executed and delivered to George S. Martin, a nephew, a bill of sale of the merchandise on hand in consideration of $1,800 which was not then ]iaid, but was to be thereafter paid out of the proceeds of the merchandise as it should be realized, and that the transfer was made for the purpose 'of preventing the creditors from reaching the stock in trade and to prevent it from passing under the general assignment.

The impression actually created by the reading of the findings, or the summary of them, which we have just made, is that the assignor attempted, through this bill of sale, to secure for his own benefit the value of this merchandise, and to prevent creditors from receiving either it or the proceeds. But such was not the fact. The assignor was a butcher, aud when he went to consult his counsel with reference to making an assignment he informed him that it was his purpose to secure his mother’s estate by giving to the executor thereof a bond and mortgage on his property, and assign as further security a bond and mortgage of which he was then the owner, and that it was his desire to devote all the remainder of his property to the payment of his creditors without preference. The question was then suggested by one of the parties to the conference, whether, owing to the perishable nature of the meat, it would be prudent to await disposition of it until after the assignee should be able to give the requisite security and enter upon the discharge of his duty. It was decided that if such course should be taken it would result in a comparatively severe loss, as the meat on hand was estimated to be of the value of $1,800. So counsel advised his client to sell the meat to George S. Martin, who then and for many years previously had been employed in the market, and charge it to him on the books, so that when the assignment should be executed it would carry with it instead of the meat a claim against George S. Martin for its value.

The assignor testified that, in pursuance of such direction, he made a sale to his nephew, at the same time making an entry or charge upon the books to him of the sale. And that this transfer was made and the entry made in the books prior to the execution of the general assignment.

This, it will be observed, is quite a different transaction than that which is suggested by the findings about which we are now inquiring. Supplementing those partial findings with the facts to which we have alluded, as is our duty in support of the judgment, it is at once apparent that if the judgment is to be reversed some other ground must be found upon which'to predicate it.

The other suggestions of wrongdoing in respect to the assignor’s estate relate to his disposition of household furniture and money in bank, and are referred to in the eleventh and thirteenth findings.

At the time of the assignment all the furniture in his house was worth about $1,000. It was all old furniture, some of it being the special property of his wife and children. Some of it he claimed as his own, but what its value was is not disclosed, nor can we tell whether it was exempt under the exemption laws of the State.

The assignor testified that he supposed that his family and not his creditors were entitled to this furniture, that it belonged to the family. No special point was made of it on the trial, and the evidence respecting it is not in an entirely satisfactory condition, but it induces the belief that the assignor fully intended to devote all the property he had for the benefit of his creditors.

The assertion in the eleventh finding, that the assignor had money in the banlc which he had no intention of conveying, referred to an item of forty-three dollars, which he had on deposit in the Chat-ham Rank, which was not the bank in which he kejjt his principal account. The assignor testifies that he intended to include it in his assignment but forgot' it; a month or so later he was informed by the bank that the account should be closed, and thereupon he drew the money and used it.

There is no other evidence on the question, and it does not justify the setting aside of an assignment which distributes the assignor’s estate among all his creditors without preference, for, whatever the fate of the general assignment, the bonds and mortgages given to secure the estate of his mother cannot be affected.

The judgment should be' affirmed, with costs.

O’Brien and Eollett, JJ., concurred.

Judgment affirmed, with costs.


author: Parker, J.: Van Brunt, P. J.:

text:
    David McClure, as Temporary Receiver of The Life Union, Respondent, v. Louis P. Levy, Appellant.

      Bequest by both parties for the direction of a verdict — purchaser of pn'omissory notes of a corporation — when in no better position than the payees, its directors — misapplication of the reserve fund of a mutual benefit association.

    When each of the parties to an action, at the close of the trial thereof, requests the court to direct a verdict in his favor, the facts most favorable to the contention of the party in whose favor the judgment is directed must be deemed to have been found.

      Where the purchaser of certain corporate promissory notes, drawn to payees who were directors of the corporation, is apprised, by the face of such notes, that they are non-negotiable and payable only out of such portion of the income of the corporation as may be properly applicable thereto, and when he has knowledge of the facts attending the making and delivery thereof, ho is in no better position, as against the maker of such notes, than the payees.
    The amendment of the by-laws of a mutual benefit association by its directors, so as to permit the use of the reserve fund of the association in such a manner as to deprive the members thereof of the benefit and protection of such fund, is invalid, as the passage of such an amendment is beyond the powers of the directors.
    Appeal by tlio defendant, Louis P. Levy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 16th day of May, 1893, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit before the court and a jury, and also from an order entered in said clerk’s office on the 22d day of May, 1893, denying the defendant’s motion for a new trial.
    This action was brought against Louis P. Levy, formerly president of The Life Union, a mutual benefit association, of which the plaintiff was appointed temporary receiver, to recover certain money alleged to have been wrongfully withdrawn from the funds of the corporation.

      diaries Strauss, for the appellant.

      Da/oid Me, G lure, for the respondent.
   Parker, J.:

The contents of the record now before us only the more strongly confirm the view taken by this court on the appeal from the order of arrest granted in this action, that the defendant was chargeable with having wrongfully withdrawn a portion of the funds of The Life Union and converted the same to his own use (68 Hun, 525).

The facts inducing and constituting the alleged conversion are as follows: Early in April, 1891, the directors of The Life Union, for the purpose of extending its' business, which was then at a standstill, entered into negotiations with the president of the Flour City Life Association of Rochester, N. Y. The result was in effect an agreement to purchase the Flour City Association for the sum of $40,000, the major portion of which the directors of The Life Union expected to raise on its notes, to be made in the following form:

“$1,000. New York^ April 13, 1891.
“ On or before twenty-four months after date, The Life Union, of the city of New York, promises to pay to the order of
one thousand dollars, at its office in the city of New York, from such portion of the income of the said The Life Union as may be properly applicable thereto, with interest, value received.
“THE LIFE UNION,
“ By J. T. Baldwin, President.
[seal.] Ralph Marden, Secretary.”

Eleven of such notes were made payable to the order of certain of the then directors of The Life Union and delivered to the payees, who cashed them, the money being turned over to Mr. Baldwin, who had previously been authorized by resolution to act as the agent of the corporation in carrying out the contract with the Flour City Association.' The money thus advanced by the directors was by Baldwin paid over to Underhill, the president of the Flour City Association.

In pursuance of the plan which the officers of the two corpora^ tions had agreed upon, as affording the most feasible method by which The Life Union could absorb the Flour City Association, several of the directors of the latter corporation resigned, and in their places were elected certain of the directors of The Life Union. But there the matter of amalgamation practically terminated, for on the recommendation of the Superintendent of the Insurance Department, the Attorney-General in behalf of the State commenced a suit to dissolve the Flour City Association, and distribute its assets-among those entitled thereto, and judgment was thereafter rendered in accordance therewith. The Life Union, therefore, received no benefit whatever from the notes or their proceeds, but that fact did not necessarily relieve it from liability to respond, so far as it might be able to do so, in pursuance of the conditions expressed in the notes, provided its officers were invested with authority to make the agreement and issue the notes.

Our attention has not been called to any decision holding that. corporations, such as were parties to this attempted amalgamation, have the power to bring about an absorption of one corporation by the other. The law does allow one company to reinsure the risks of another, but that was not the purpose of the agreement in question. It contemplated the acquisition of the franchises and assets of the selling company as well as the opportunity to reinsure its risks.

As this question has not been discussed by one of the counsel on this appeal, and there still remains another ground on which we think the affirmance of the judgment may he safely predicated, we shall not attempt to pass upon the question of power.

A little over a year after the date of the notes the defendant was elected a director and president of The Life Union. At the same time there were chosen such other directors as he desired, in order to give him control of the board. "What it was that so stimulated his ambition to become the president of the corporation, and have the control of the board of directors, as to induce him to pay something like 812,000 for these notes, we are not informed. Certain it is that he did pay such amount for the notes, and that he could not have secured the presence of his friends in the board of directors and the presidency for himself otherwise. And he purchased these notes with full knowledge of the facts attending their execution and delivery to the several directors of the corporation. In making this assertion we do not lose sight of the fact that the evidence relating to several questions of fact permit contrary inferences, but at the close of the trial the defendant asked for a direction of a verdict in his favor, which was promptly followed by the same request on the part of the plaintiff, resulting in a direction of a verdict by the court that plaintiff have judgment. Both parties having requested the court to direct a verdict, the facts most favorable to the plaintiff’s contention must be deemed to have been found. Being apprised by the face of the notes that they were nonnegotiable and payable only out of such a portion of the income of The Life Union as might be properly applicable thereto, and having, as we have already observed, knowledge of the facts attending their making and delivery, it follows that defendant was in no better position as against the company than the directors themselves. They would clearly have been liable as wrongdoers had they, through official action, diverted from the reserve fund a sum of money sufficient to pay tlie notes. That is what the defendant hy his own action and that of his chosen directors accomplished.

About six months after he had entered upon the discharge of the duties of his office as president of The Life Union, he took the first step, so far as we are informed by the record, in the direction of securing the payment of the notes.

It is not unlikely that he fully appreciated the impending storm which a few weeks later drove the corporation into a receivership.

November 7, 1892, the by-laws were amended as follows: “The board of directors shall have authority to fix and determine the amount of benefits for which certificates of membership will be issued', rates of assessments, admission fees and annual dues; and to adopt such other rules and regulations as they may deem best fox' the interest of the association, and shall have the authority to adopt and execute, in addition to the mode in these by-laws provided for, such other or additional plans and systems of participation in benefits of membership, and of the holding, division and legal investment of reserve fund and accumulations in conformity with the laws of the State of New York, and of the use thereof for any lawful purpose deemed to be for the promotion, well-being and interest of the association and for the benefit of members from time to time as the board of directors may deem expedient and for the best interest of the association.”

Having thus provided, as the president supposed, a way by which the moneys in the treasurer’s hands could be applied in payment of the notes, with some appearance, at least, of regularity, the president, on some day during the following month, called a meeting of the board of directors. During the morning of the day of the meeting, and before the hour fixed for that purpose, the president, evidently with full confidence that his chosen directors would not attempt to thwart his intended raid upon a fund set apart for a particular purpose, directed the treasurer "Wmans to ascertain the entire amount of the reserve fund then on deposit in the National Park Bank, and to draw a check payable in cash for such amount. It turned out that the amount of the reserve fund was less than the face of the notes, but a check for all there was, amounting to a little over $10,000, was made out by the treasurer and delivered to the president. The president promptly sent the check to the bank for certification and an hour or so later the directors’ meeting was called to order and the following resolution promptly passed:

Resolved, it being apparent from notes presented that Mr. Louis P. Levy has taken up notes to the amount of eleven thousand ($11,000) dollars drawn by the company, we hereby authorize our officers to draw upon our reserve fund to pay such notes, with interest.”

The resolution having been safely passed and the certified check for every cent in the reserve fund having come into the president’s possession, he on the same day resigned his trust.

■ The by-law may have been passed to give the appearance of regularity to the action contemplated, or possibly on the assumption that its authorization to use the reserve fund for any lawful purpose deemed to be for the “promotion, well-being and interest of the association and for the benefit of members,” would protect the directors in appropriating the funds to any purpose not absolutely disassociated from the affairs of The Life Union.

The by-law does not admit of such a construction, but were it otherwise it would be invalid, because in excess of the power of the directors.

The statute then in force provided for the accumulation and maintenance of a reserve or emergency fund, which “ shall be held for the benefit or protection of its members, their legal representatives or beneficiaries” (Chap. 690, Laws 1892, § 205), while the scheme which this by-law is invoked to protect is one to deprive the members of the benefit and protection of the reserve fund.

As the officers and directors of the corporation were without authority to make use of the reserve fund in payment of the notes, and the action taken was not only with the knowledge of, but induced by, the defendant while charged with the duty of protecting and preserving the fund, it follows that judgment was properly rendered against him.

The judgment should be affirmed, with costs.

Pollett, L, concurred.

Van Brunt, P. J.:

I concur. Upon the face of the notes it appeared that the moneys used to pay the notes were not properly applicable thereto.

Judgment affirmed, with costs.


author: Parker, J. :

text:
    Caroline Amanda McCready, Appellant, v. The Farmers’ Loan and Trust Company, as Trustee and Guardian of Francis Marion Whaley and Another, Appellants; William Whaley, as Administrator, etc., of Louisine W. Whaley, Deceased, Respondent.

      Code of Civil Procedure, § 1228 — taking of testimony by a referee after the filing of his report — the Special Term has no power to permit or direct it — proper way to correct an error.

    Under section 1228 of the Code of Civil Procedure a referee’s report, in an action where the whole issue is one of fact, stands as the decision of the court, and, except in a few cases, judgment is entered thereon hy the clerk. The referee, after his report has been filed, cannot proceed further in the taking of testimony looking to, or which may result in, a change of his decision; that power has passed from him, and the Special Term of the Supreme Court cannot restore it or compel its exercise.
    "if an error appears in the record the remedy is hy appeal; if outside the record, hy an application for a new trial.
    Appeal by tlie plaintiff, Caroline Amanda McCready, and tlie defendant, The Farmers’ Loan and Trust Company, as trustee and guardian of Francis Marion Whaley and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of April, 1891, directing that the report of the referee be sent back for the purpose of enabling him to take testimony in regard to the commissions alleged to be due to the administrator of Louisine W. Whaley, deceased.

      Damid McCltvre and Charles Steel, for the appellants.

      Charles A. Jaelcson, for the respondent.
   Parker, J. :

After the referee had made his report in the suit which was referred to him to hear and determine, leaving him without further power, except to settle the case on appeal, the court at Special Term Ordered, that the report of William IT. Willis, Esq., the referee herein, which was filed herein on the 5th day of April, 1891, be and it is hereby sent back to said referee for the purpose of taking testimony in regard to the commissions alleged to be due to William Whaley, as administrator of Louisine W. Whaley, deceased, and receiving evidence on behalf of said administrator as well as of the other parties hereto in regard to said matter, and to allow the said administrator to cross-examine the said Nathaniel L. McCready in regard to his testimony on said matter, and to make such legal objections thereto as he may see fit.”

Our attention is not called to any statutory provision authorizing such practice.

Under section 1228 of the Code of Civil Procedure, a referee’s report in an action where the whole issue is one of fact, stands as the decision of the court, and except in a few cases judgment is entered thereon by the clerk.

After his. report has been filed he cannot proceed further in the taking of testimony looking to, or which might result in, a change of decision. That power has passed from him, and the Special Term cannot restore it, much less compel its exercise.

If the record of the trial shows error as against the defeated party his remedy is by appeal. Otherwise the judgment must stand unless there exist such facts outside the record as entitle him to a new trial. The grounds upon which the granting of a new trial may be predicated need not be adverted to, nor need we consider whether the affidavits before the Special Term would have supported an order granting a new trial, for no such order was made nor asked for; therefore, we have not that question before us.

The court did not grant a new trial and appoint the same person or another to act as referee, specifying in the order, as required by rule 31 of the General Rules of Practice, the grounds upon which the motion was granted.

Instead, it treated the report of the referee as something which could be recalled and corrected in accordance with evidence to be presented which should conflict with that upon which it was based — the referee as having the power to take other testimony and render a different judgment if put in motion by the Special Term, and the court as having the authority to specify the subjects as to which further evidence should be taken and necessarily the respects in which a different decision would be permissible.

Ross v. Ross (31 Hun, 140) and the cases cited in the opinion of Brown, J., deny the existence of this power in the Special Term.

The order should be reversed, with costs and printing disbursements, and the motion denied, with ten dollars costs.

Yan Brunt, P. J., and Follett, J., concurred.

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


text:
    James W. Elwell, Appellant, v. Philip Bender, Guardian, etc., and Others, Respondents.

      lAmitation of liability for damages done by a vessel, under U. 8. B. 8. §§ 4283, 4284 and 4285 — the remedy is confined to courts of admiralty — jurisdiction of the United States District Qourts.

    While sections 4283, 4284 and 4285 of the Revised Statutes of the United States in. express terms declare that, under certain conditions, the liability of the owner of a vessel shall be limited to the extent therein described, and that the limitation may be enforced in any court, the remedy is confined to those cases over which courts of admiralty have jurisdiction.
    To recover damages for personal injuries sustained by reason of the collision of a vessel with a pier in the city of New York, resort must be had to the courts of the State of New York, the District Courts of the United States having no jurisdiction over an action brought for that purpose.
    Appeal by the plaintiff, James W. Elwell, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2'Tth day of April, 1894, denying the plaintiffs motion for an injunction to restrain the defendants from prosecuting certain actions.

      Benedict & Benedict, for the appellant.

      Christopher Fine, for the respondents.
   Parker, J.:

The brig Keystone, of which the plaintiff is the principa;! owner, collided with the pier at the foot of Fifth street, New York, on the 21st day of April, 1884. At the moment of collision, Conrad and Charles Geibel, infants, were on this public pier, and in such a position that they were caught between the anchor of the brig and a spile on the end of the pier and both were injured. In December, 1892, Conrad Geibel, by his guardian, commenced an action in this court against James W.' Elwell, this plaintiff, to recover for the injury sustained. A little over a year later his brother, Charles Geibel, instituted an action against this plaintiff for a like purpose. About two weeks later this suit was begun against the plaintiffs in the actions referred to, its purpose being to limit the liability of the plaintiff herein under sections 4283, 4284 and 4285 of the Revised Statutes of the United States.

By the 4283d section, the liability of the owner of a vessel for “ any loss, damage or injury by collision,” or for “ any act, matter or thing lost, damage or forfeiture done, occasioned or incurred without the privity or knowledge of such owner,” is not to exceed the amount of the value of his interest in the vessel or her freight then pending.

By section 4284 such an owner is authorized to take appropriate proceedings “ in any court for the purpose of apportioning the sum for which the owner of the vessel may be liable among the parties entitled thereto.”

As the value of the interest of Mr. Elwell in the brig Keystone and her freight pending does not exceed $3,500, and the infants Geibel in their actions each claim to have sustained damages in a much larger sum than $3,500, the plaintiff insists that he is entitled in this suit on the equity side of the court to obtain the benefit of the statute limiting the liability of the owner in certain cases, and that such a result can only be accomplished by having it determined in one suit whether the damages sustained by them aggregate $3,500, and, if so, what proportion thereof each are entitled to recover. With that purpose in view the plaintiff, after his suit had been commenced, obtained an order to show cause why an injunction should not be granted restraining the prosecution of the actions brought on behalf of the infants to recover damages during the pendency of this suit.

The court having denied the injunction this appeal brings up for review the order entered thereon.

It is apparent that if the statute can be made available to plaintiff in this court, for the purpose of securing the benefit of the limitation for which it provides, it can only be accomplished by means of a suit of this character through which there could be apportioned the value of plaintiff’s entire interest in the brig in such portions as it should be adjudged the infants were severally entitled. And such a suit can only be made efficacious by a stay of the other actions during its pendency.

v Such is the purpose of this suit, and it prompted the request for the injunction, which ought to have been granted, provided the suit be undoubtedly maintainable. If it were a case of first impressions, we might perhaps have reached the conclusion that, inasmuch as the statute provides that an owner may “ take appropriate proceedings in any court,” it ought not to be so construed as to bestow its intended benefits only upon such parties as should proceed or be in a position to proceed in a court of admiralty. But a different view seems to have been taken by the United States court, in so far as the decisions upon that subject have been brought to our attention.

In Norwich Co. v. Wright (13 Wall. 104, 123) Judge Bradley in his opinion says: “ Thp act does not state what court shall be resorted to, nor what proceedings shall be taken, but that the parties, or any of them, may take “ the appropriate proceedings in any court for the purpose of apportioning the sum for which,” etc. “Now, no court is better adapted than a court of admiralty to administer precisely such relief. * * * Congress might have invested the Circuit Courts of the United States with jurisdiction of such cases by bill in equity, but it did not. It is also evident that the State courts have not the requisite jurisdiction. Unless, therefore, the District Courts themselves can administer the law, we are reduced to the dilemma of inferring that Congress has passed a law which is incapable of execution. We have no doubt that the District Courts, as courts of admiralty and maritime jurisdiction, have jurisdiction of the matter; and this court undoubtedly has the power to make all needful rules and regulations for facilitating the course of proceedings.”

These observations of the learned justice were quoted' and distinctly approved in Providence & N. Y. S. Co. v. Hill Manufacturing Co. (109 U. S. 578, 598). Such a construction operates of course to deny to this plaintiff any benefit whatever from the statute, because, as the collision was with the pier instead of a vessel, the admiralty court has not jurisdiction to entertain an action to recover for injury done to the boys on the pier, or to carry into effect the limitation of liability for which the statute provides.

For such an injury resort must be had to the State courts. And in such a case, according to the decisions referred to, the benefits of the statute cannot be invoked in aid of the owner of a vessel, because it is said that the statute which created this right by implication prescribes that it shall be enforced only in the District Courts. In other words, that while the statute in express terms declares that, under certain conditions, the liability of an owner of a vessel shall be limited to the extent described, and that the limitations may be enforced in any court, still the remedy is confined to those cases of which courts of admiralty have jurisdiction.

The plaintiff in this suit presented this question in the Circuit Court of the United States in Elwell v. Geibei et al. (33 Fed. Rep. 71). The court, after considering the cases herein referred to, reached the conclusion that the Circuit Court of the United States was without jurisdiction to enforce the limitations of the statute.

The court further declared that the statute “ created a new right, and, by implication, prescribed that it should be enforced in the District Court. The remedy is confined to the jurisdiction provided by the statute which created the right.”

These authorities, we think, require an affirmance of the order.

The order should be affirmed, with ten dollars costs and printing disbursements.

Follett, L, concurred; Yan Brunt, P. J., concurred in result.

Order affirmed, with ten dollars costs and disbursements.


text:
    Josephine G. Cambreleng, Respondent, v. Ella Ward Graham, Appellant.

      Gift inter vivos — essentials thereof.

    To constitute a valid gift int&r vivos thJdonor must be competent to give and the donee to receive; the donor’s dominion over the property must be such that he has a present right to give it; he must intend to make the gift; there must be an actual delivery of the property, so far as it is capable of delivery, that the donor may not be in a position to revoke the gift, and the donee must accept it.
    Appeal by tbe defendant, Ella Ward Graham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of April, 1894, upon the report of a referee.

      Robert T. Varnum, for the appellant.

      Henry L. Sjprague, for the respondent.
   Parker, J.:

The referee found that plaintiff’s father, by a valid gift inter vivos, vested in her the title to a piano, which he afterwards undertook to transfer by bill of sale, properly executed, through a third person, to his wife, this defendant, and adjudged that plaintiff was entitled to recover its possession from the defendant.

To constitute a valid gift inter vivos the donor must be competent to give and the donee to receive; the donor’s dominion over the property must be such that he lias a present right to give it; he must intend to make the gift; there must be an actual delivery of the property, so far as it is capable of delivery, that the donor may not be in a position to revoke the gift, and the donee must accept it.

The evidence before the referee authorized him in finding the presence of all these essentials to a gift, as we think, except one. We do not find any evidence to support the finding of delivery.

Plaintiff’s father purchased the piano of Steinway & Sons in the early part of May, 1886. He was an old friend of Wm. Steinway, and for that reason the head of the firm gave to the. matter his personal attention. His description of what was said and done on that day, by and between plaintiff, her father and himself, constitutes the most important part of the evidence presented. He said that when Col. Graham (plaintiff’s father) came in he referred to his daughter and said he wanted to buy a piano for her; that they tried several, selected one, agreed upon the price, and, continued the witness: “Now comes an episode that I remember distinctly every word of because it is a part of our business policy. He said: £ Mr. Steinway, I want to give you a check for this to-morrow ; you need not send it until you have pay for it.’ I told him that was unnecessary, he could pay later on; that I knew who he was, and he turned around and said: £ Joe, this piano is now your own property.’ I distinctly remember that; and he said: £ Mr. Steinway, you liad better have the bill made out in her name.’ I said: £ Col., allow me to ask you one question; how old is ydur daughter ? ’ and I distinctly remember he said sixteen years. I said: £ Col., in our experience with several lawsuits we have had it is not a good idea to have a money transaction with a minor, make a sale to a minor; and, although this is of almost daily occurrence with a father or mother, or an adult member of a family, we always advise our friends to make the transaction with themselves; your check pays for it and is a perfect chain of evidence. If you want to give it to your daughter, indorse on the back of it, £ In consideration of my love and affection, I hereby give the within-mentioned piano to my daughter Josie.’ ’ He said he would do it. Q. That is a full account of the transaction so far as you now remember ? A. With the exception that he came in the next day and handed us a check for $750, and received our check as a drawback, being an intimate personal friend, for $100, and received a bill of sale with a warranty, and he came in there on the third and fifth and on sixth and seventh, four consecutive days, and spoke about the mortgages and about the piano, and he said he would — in fact, he took it right down as I dictated it — In consideration of my love and affection, I do hereby give the within-described piano to my daughter Josephine.’ Q. You merely know he took down at that time what you said? A. Yes; he said he would indorse it on the bill.”

This testimony clearly shows an intention to purchase the piano for the plaintiff. But as he had not acquired either title or possession at the time when the conversation took place, necessarily that which he said did not amount to a gift or delivery, for a man cannot give what he does not own, nor deliver that which he has not the possession of. That he did not expect a delivery by Steinway & Sons, until after payment, is shown by his statement to Mr. Steinway, “ I want to give you a check for this to-morrow; you need not send it until you have pay for it.”

It is true that the reply was “ You can pay later on,” but the suggestion of Col. Graham was not modified, and the piano was not delivered until after it was paid for.

Had Col. Graham accepted the suggestion, and replied that he would take the piano and pay for it later, still the contract would have been void under the Statute of Frauds.

But it may be said that the delivery of the piano two days later operated to validate the void oral agreement. (Jackson v. Tupper, 101 N. Y. 515.) Grant it, and the plaintiff is not aided, because Graham did not come into possession of the piano until its delivery by Steinway & Sons, which was two days later than the conversation we have quoted. Certainly he could not make actual delivery of the piano until after its delivery to him by his vendor, and as there is no pretense that a symbolic delivery was at that time attempted, we need not consider whether subsequent validating of the contract would have operated to make such a delivery effectual.

As we have observed, the evidence warranted the finding that Col. Graham intended to make the gift, and now we must inquire whether he made delivery after the piano was sent to his house by Steinway & Sons. From the testimony of Mr. Steinway"it appears that he advised Col. Graham that the bill of sale be made out to him, and that if he wished to give the piano to his daughter that he then indorse on the back of it' In consideration of my love and affection, I hereby give the witliin-mentioned piano to my daughter Josie,” and deliver it to her This Col. Graham said he would do. Had he done so it would have constituted as good a delivery as the thing was capable of in view of the fact that this plaintiff was living with her father.

But it seems he did not do it, but instead, later on, by a bill of sale, transferred it through a third person to this defendant.

By that act he not only asserted dominion over the piano, but indicated that he did not regard himself as having made a completed gift of the instrument whatever he may have intended originally.

The only thing said or done by Col. Graham after the piano reached his house which it is claimed tends to show delivery is found in the testimony of Victorie Graham; she said, “ After the piano had got home he came upstairs and said he wished I would go down and try Josie’s piano ; I remember that distinctly.”

We do not think this declaration, under the circumstances attending its making and in view of defendant’s subsequent assertion of ownership, warrants the inference that the piano had then been delivered to the plaintiff. In a great majority of families doubtless the real owner of all the personal property used by the family speaks of certain articles as if they were the property of the children, such as “ this is Charlie’s saddle horse, or Mary’s piano, or Sarah’s new bookcase,” without intending to convey the impression that he had made a complete gift of them such as would enable the children to obtain an adjudication that they were severally the owners of such property. This expression, so frequently employed by fatlfers generally, means only that the article has been acquired by the father for the use and pleasure of this child while a member of his household.

The judgment should be reversed and new trial ordered, with costs to abide the event.

Van Brunt, P. J., and Follett, J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.


text:
    The New York Breweries Company (Limited), Plaintiff, v. Francis Higgins, as Receiver of the North River Bank, Defendant.

      Bank — deposit in an insolvent bank — when recoverable — evidence of an assei'tion of solvency

    If a bank receives deposits of money, drafts or checks, after knowledge of its insolvency is acquired by the officers or agents in charge thereof, the bank is, in a legal sense, guilty of fraud.
    While the effect of a deposit in a solvent bank is to vest the title of the thing deposited in the bank, upon an implied contract that it shall repay the amount upon the checks of the depositor, yet, if the bank be chargeable with fraud in receiving the deposit, the depositor may, on discovering that fact, rescind the contract and reclaim the property, unless it has in the meantime passed into-the possession of a bona fide holder.
    The fact that a bank keeps its doors open and transacts business is a continuing assertion of its solvency.
    Motion by the plaintiff, The New York Breweries Company (Limited), for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the-dismissal of the complaint directed by the court on the 15th day of May, 1893, after a trial at the New York Circuit before the court and a jury.

      Louis Marshall, for the plaintiff.

      Peter A. Hendrick, for the defendant.
   Parker, J.:

If a bank receive deposits of money, drafts or checks after knowledge of its insolvency is acquired by the officers or agents in charge it is, in a legal sense, guilty of fraud. While the effect of a deposit in a solvent bank is to vest the title of the thing deposited in the bank upon an implied contract that it shall repay the amount upon the checks of the depositor, yet, if the bank be chargeable-with fraud in receiving it, the depositor may on discovering that fact rescind the contract and reclaim the property, unless it has in the meantime passed into the possession of a bona fide holder, (Cragie v. Hadley, 99 N. Y. 131; Importers & T. N. Bank v. Peters, 123 id. 272.)

The plaintiff sought to prove such facts upon the trial as would entitle it to maintain this action under the rule stated. The trial court dismissed the complaint at the close of plaintiff’s case, holding that there was no evidence that the officers of the bank knew of its insolvency at the time the deposits of the plaintiff were accepted.

An examination of the evidence leads us to concur in the position thus taken.

The commencement of the action was doubtless prompted by the fact that rumors touching the affairs of the bank had led the plaintiff’s representatives, before making the last deposit, to take the precaution of asking the president to make a frank statement about its condition. This was at about eleven o’clock of the last business day of the bank. The president, responding to the inquiry, said: “ Mr. Graff, all that I can tell you is that everything is going on as usual, as you see,” and he says: “We are all right.” He says: “ You can tell Mr. Flannagan,” he says, “ the banks are all pledged to stand by one another.” And he said: “ The Clearing House will also stand by us; we have it at our back.” And he says: “You can tell Mr. Flannagan for me that there is not the slightest thing; there is no trouble to be apprehended at all.”

It will be observed that the assurance of the president added nothing really to that which the bank gave by keeping its doors open and transacting business in the ordinary way. Such conduct of itself is a continuing assertion of the solvency of a bank and “ that there is no trouble to be apprehended at all.”

Was there any evidence then before the court authorizing the jury to find that the officers in charge had knowledge of the wreck impending ? Several of. the directors were called by the plaintiff for the purpose of proving that such was the fact, but their testimony did not tend in that direction. Joseph Brokaw, who had been a director of the bank for thirty years, a regular attendant at the directors’ meetings, and was present on the last day of the bank’s existence, testified at some length in relation to certain paper upon which the receiver has been able to realize comparatively little, the most important of which was the paper of Paige, Carey & Co., amounting to about $480,000, for which the bank held as collateral an assignment of the amount due the firm from the city of New York, for work done under certain aqueduct contracts. With reference to it he said: “We never had any doubt as to the Paige paper, sir; never to the day of the failure.”

John H. Starin, another director, testified that he made an investigation with reference to the Paige paper, and reached the conclusion that the loan was well secured. As a further evidence of his confidence that the paper was collectible and the bank solvent he testified that he caused an investigation of the bank and its assets to be made, and he offered a few days before its doors were closed to take an assignment of the stock, assuming the liability of the bank, and go on with its business under a new board of directors, which offer he renewed after the notice had been put up that the bank was temporarily closed, and tbe Superintendent of the Banking-Department had taken possession.

"Wm. E. Teft, another director, who lived at the same hotel with Mr. Paige, testified that he had had the affairs of Paige, Carey & Co. investigated in the same manner as he was accustomed to investigate those of the customers of his firm (Teft, Weller & Co.), and reached the conclusion that the bank was well secured. He also testified that a day or so before the suspension of the bank he advanced to it the sum of $28,000, because it was short of legal tender notes necessary to make exchanges at the Clearing House. Without referring to the testimony of other witnesses who were connected with the bank, it may be said generally that not a word can be found indicating that they believed the bank to be insolvent, or that it would be unable to continue to conduct its business as usual.

The bank examiner, upon whose report the action for dissolution was based, commenced an examination of -the bank on the morning of November 12, 1890, the last day of its existence. He said that about two o’clock in the afternoon of that day the president came to him with the information that a check for $12,000 had been presented for payment, and said that there was not money enough on hand to pay it, and solicited the advice of the examiner, who informed him if he paid one dollar while confessing his inability to pay all, he did so at his peril. Acting upon the advice of the examiner the notice was put up that the bank was temporarily closed.

It turned out that the president was mistaken in his supposition that there was not currency enough on hand to pay the check. An examination made after the bank was closed led to the discovery that $61,000 in currency had been in some manner overlooked, and in addition there were checks amounting to $81,566.36, which after-wards passed through the Clearing House, and checks of out-of-town banks aggregating $43,189.44 which were subsequently nearly all paid.

From the twelfth to the nineteenth of November the Superintendent of the Banking Department was in possession of the bánk, at the expiration of which time the bank examiner made a report upon which the action for dissolution was founded, and his report showed an impairment of the capital, which was $210,000, to the extent of $99,901.90.

In reaching this conclusion he made deductions from the face value of many of the'assets, which were necessarily to some extent not based upon actual knowledge of value, but upon his judgment, founded upon such investigation as he had the opportunity to make.

Arnold Davidson, an expert accountant, called by the plaintiff, testified that he made an examination in the early part of 1892 of the books of the bank, as of the 5th day of September, 1890, and that as a result of the examination he reached the conclusion that the capital stock was at that time impaired $83,608.50. In arriving at this result he valued many of the assets at less than their face, and in some instances at a less sum than was subsequently realized on a sale by the receiver.

Without further reference to the evidence, it may be said that it does not show that, prior to the making of the deposits, any of the drafts of the North River Bank had gone to protest, or that any of the officers knew or believed the bank to be either insolvent or in danger of insolvency.

Indeed, the counsel for the appellant in his brief frankly admits the record to be barren of any affirmative evidence indicating that the officers of the bank had actual knowledge for any period of time of the insolvency of the bank, his contention being that the jury would have been justified in finding, and, therefore, should have been permitted to find, that the bank was insolvent and that its officers knew of its real condition. We cannot agree with him. It is true that the loan to Paige, Carey & Co., as well as other loans, have proved unfortunate. Their claim against the city as sub-contractors under O’Brien & Clark, amounting to a much larger sum than their indebtedness to the bank, has proved to be uncollectible.

The question is not whether it has proved to be good or bad, but whether the directors and officers of the bank at the time plaintiff made its deposit believed it to be good. Upon that question there is no dispute. There is no evidence whatever that they regarded the loan as insecure. On the contrary, there is abundant evidence that after an investigation made by certain of its directors they believed it to be good. There were other smaller loans which were bad, some of which were known to be worthless by the officers of the bank, as is doubtless the case in nearly all banks. But the loans which the evidence shows they understood to be bad did not aggregate such a sum as would have justified them in regarding the bank as insolvent.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.


author: O’Bbien, J.:

text:
    Patrick H. McCooey, Respondent, v. The Forty-second Street and Grand Street Ferry Railroad Company, Appellant.

      Questions of negligence and contributory negligence are for the jury — verdict, when not excessive — evidence as to the surroundings and results of the accident — otjec-. tion to a hypothetical question.

    In an action brought to recover damages for injuries sustained by a person, who was struck by a car running at a considerable rate of speed, while lawfully engaged in work upon a street near a track over which horse cars ran, the question of the defendant’s negligence and the plaintiff’s freedom from contributory negligence should be submitted to the jury.
    Upon the trial of such action it was shown that the plaintiff was thrown down in such a position that the wheel of the car went over his foot, starting at the toes and running off near the ankle, wrenching the ankle and tearing the heel of the shoe loose. He remained in the hospital five days and was then taken home and laid up by the injury a little over four months, during which time he suffered pain and was unable to use his foot or to work, and during two or three of said months he was obliged to use crutches. The jury rendered a verdict for the plaintiff for §1,500.

      Held, that such amount was not, under the circumstances, excessive.
    In such an action it is proper to show the surroundings of the accident, and, for that purpose, to introduce in evidence a map, properly authenticated and proved; it is also competent to show what results would follow with reasonable certainty from the injuries received, and, in a proper case, to recover damages therefor.
    The overruling of an objection to a hypothetical question on the ground only of its incompetency, will not justify a reversal of the judgment on appeal on the . ground that the question did not contain all the facts necessary to enable the expert to answer it and thus bring them to the minds of the jurors.
    Appeal by tbe defendant, The Forty-second Street and Grand Street Ferry Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of November, 1893, upon the verdict of a jury for $1,500, rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the lJth day of November, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Henry Hobinson, for the appellant.

      G. Washbourne Smith, for the respondent.
   O’Bbien, J.:

This action was brought to recover damages for injuries alleged to have been received by plaintiff while engaged in work as a laborer on the 18th of December, 1891. According to the version given by plaintiff and his witnesses, it appears that on that day, while engaged in building a cable railroad in Broadway, just south of Thirty-fourth street, he was knocked down by the nigh horse attached to one of defendant’s cars going in a southerly direction, and his right foot went under a Broadway car passing south at that instant and was run over and injured.

Plaintiff was engaged at the time of the accident in the Avork of replacing a cast iron manhole cover over the entrance to a vault. The place where he was working Avas in a space between the four tracks of the Sixth Avenue Railroad Company and the Broadway and Seventh Avenue Railroad Company where they cross south of Thirty-fourth street, which space is called “ the diamond.” Having raised the manhole cover and permitted three or four men to go down into the manhole to work, the plaintiff and a fellow-workman were engaged in replacing the cover, the accident happening just while the plaintiff Avas letting the cover down in its place, with the bar inserted in the cover, and while he was in a stooping position. Testimony was given to show that the defendant’s car Avas going at the rate of at least five and a half miles an hour; that the driver was not looking in the direction in which he was going, but towards the east, and, though shouted to stop when the horses were twenty-five to thirty feet away, which as shown by an expert would have been sufficient space within which to have stopped the car, the driver paid no attention to these signals, but drove right on, striking the plaintiff and causing the injuries for which he sued.

Tlie plaintiff being lawfully engaged, therefore, in a work upon the streets and near the track over which the defendant’s cars ran, and being struck while so engaged by a car running at a considerable rate of speed, the question of the. defendant’s negligence and the plaintiff’s freedom from contributory negligence were properly submitted to the jury. It was shown that the plaintiff was thrown down in such a position that the wheel of the Broadway car went over his right foot, starting at the toes and running off near the ankle, wrenching the ankle and tearing the.heel of the shoe loose. He remained in the hospital five days, was then taken home and laid up by the injury a little over four months, during which he suffered pain and was unable to use his foot or to work, and during two or three of such months obliged to use crutches. The amount awarded of $1,500 was not, under the circumstances, excessive.

This leaves as the only grounds upon which the verdict or judgment can be assailed the exceptions taken to the admission of evidence. The first is to the introduction in evidence of a map and permitting the witness to state that the distance between the tracks of the Sixth Avenue road at the point where the accident occurred Avas five feet three inches. It is urged that this was entirely irrelevant, because the Sixth Avenue road was a stranger to the suit. But the simple answer to this objection, it seems to us, clearly appears from the record, wherein it is shown that such testimony was elicited on the examination of the city surveyor, who produced a map showing the location of the accident, and upon which the various distances of the several tracks from the place where the accident occurred were marked. That it is competent to show the surroundings of the accident, and for that purpose to introduce a map properly authenticated and proved, has been many times held.

The next objection relates to a hypothetical question asked of a doctor, andAvhich is sought to be sustained by the line of cases which hold that the question must contain the facts assumed, so that the jury can have before them the facts in the expert’s mind upon which he bases his answer to .the hypothetical question. These eases are not available to the appellant, because his objection was .not put upon the ground that the question did not contain all the facts necessary to enable the expert to answer, but upon the ground of its incompetency. Tliat sucli evidence was not incompetent is apparent not only from its character, but also from the fact appearing from the record that the defendant’s own counsel had, in a series of hypothetical questions, endeavored to elicit like testimony.

Other exceptions relied upon by appellant were to rulings of the court in permitting the doctor to give his opinion as to the probable duration of the injuries. Such questions were objected to, not as to form, but as being incompetent, and the objection thus made was not sufficient to call the attention of the trial judge to the ground now relied upon. That it is competent in these cases to show what results will flow with reasonable certainty from injuries received, as well as the right tó recover for such injuries, has been frequently recognized. The witness under examination was a skilled surgeon, who was in every way qualified to give the information which the questions were directed to eliciting.

It is unnecessary to notice in detail the other objections relied upon on this appeal, it being sufficient to say that they are wanting either in form or substance. Upon the whole case we think that the verdict of the jury was sustained by the evidence, that the damages were not excessive, and that the judgment is right and should be affirmed, with costs.

Follett and Parker, JJ., concurred.

Judgment affirmed, with costs.