author: Rapallo, J.

text:
    Joseph Falker, Appellant, v. The New York, West Shore and Buffalo Railway Company et al., Respondents.
    (Argued June 18, 1885 ;
    decided October 6, 1885.)
    The rule of the Supreme Court (Rule 3), requiring all papers served or filed to be indorsed or subscribed with the name of the attorney and his office address or place of business, does not require the office address to be stated more than once on the same paper."
    Where, therefore, a copy of judgment was indorsed with the names of the plaintiff’s attorneys and their office address, and below this was also indorsed a notice of judgment signed by said attorneys without giving their office address, held, that there was a sufficient compliance with the rule, and the notice was effectual to limit the time for appeal.
    The attorneys of record for defendant were W., Me. L. & D. The notice was served at their office, received by their managing clerk, entered in their register, and was retained. It was addressed to W. & Me. L., a firm occupying the same office. W. was a member of both firms and the former existed only with reference to unfinished business. On previous occasions admissions of service of papers in this action served at the same office and addressed to W., Me. L. & D. had been signed with the firm name of W. & Me. L.- Held, that the omission to insert in the address the names of all the partners did not, under the circumstances, invalidate the notice.
    While strict practice must be pursued to limit the time to appeal, a mere inaccuracy in the notice of judgment which violates no rule of practice and is itself immaterial will not be sufficient to avoid it.
    Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made May 5, 1885, which denied plaintiff’s motion to dismiss defendants’ appeal from judgment entered herein.

      The motion to dismiss was made upon the ground that the notice of appeal was not served within sixty days after service of notice of judgment and copy thereof. Defendants claim the notice to be defective and insufficient to limit the time to appeal.
    The material facts are stated in the opinion.

      Louis Marshall for appellant.
    An appeal to the General Term “must be taken within thirty days after service upon the appellant’s attorney of a copy of the judgment appealed from, and a written notice of the entry thereof.” (Code of Civ. Pro., § 1351.) If such copy of judgment and notice of entry is served, the right to appeal expires at the end of thirty days. ( Wait v. Van Allen, 22 N. Y. 322.) Ffo court or judge is authorized to extend the time fixed by law within which to take an appeal. (Code of Civ. Pro., § 783 ; Wait v. Van Allen, 22 N. Y. 319 ; Clapp v. Hawley, 97 id. 610.) There is no requiremént of law that the office address shall be subscribed to the notice. It is' sufficient if it is indorsed anywhere upon the paper served, so long as the desired information is given. (Devlin v. Mayor, 62 How. Pr. 166; Baker v. Hatfield, 29 Hun, 670; Yorks v. Peck, 17 How. Pr. 192; Kelly v. Sheehan, 76 N. Y. 326; Kilmer v. Hathorn, 78 id. 228;. Rule 2.) An absurd and arbitrary construction should not be given to rule 2 in order to nullify sections 1351 and 783 of the Code. (Palmer v. Wilson, 75 N. Y. 251; Clapp v. Hawley, 97 id. 610.) The notice was sufficient, although addressed to Waters & McLennan, and not to Waters, McLennan & Dillaye. (Chase v. Bibbins, 71 N. Y. 592; Baker v. Hatfield, 29 Hun, 670; 3 Civ. Pro. Rep. 303; Bauder v. Coville, 4 Cow. 60 ; Doane v. Rice, 11 Wend. 178.) The order denying plaintiff’s motion to dismiss defendants’ appeal is reviewable here. (Clapp v. Hawley, 97 N. Y. 610 ; Wait v. Van Allen, 22 id. 321; Bates v. Vorhees, 20 id. 525 ; Matter of N. Y. C. & H. R. R. R. Co., 60 id. 112; Tracy v. First Nat. Bank, 37 id. 523 ; Leland v. Hathorn, 42 id. 547; Wright v. Brown, 67 id.,1; Dunlap v. Patterson F. Ins. Co., 14: id. 145 ; Blossom v. Estes, 84 id. 614; McHenry v. Jewett, 90 id. 58.)

      M. M. Waters for respondents.
    A party undertaking to limit the time for appealing-is held to strict practice. (Matter of N. Y. C. & H. R. R. R. Co., 60 N. Y. 112.) , A notice of the entry of judgment, which is not indorsed or subscribed both by the name of the attorney and his office address or place of business as required by the general rules of practice (Rule 2), -is irregular and ineffectual to limit the time for appealing. (Kelly v. Sheehan, 76 N. Y. 325.) The act of Waters & McLennan, attorneys, will be disregarded by the court. (Jerome v. People, 1 Wend. 293; Rule 10, Sup. Ct.) A notice of entry of judgment must not only be subscribed by the attorneys, with the addition of their office and post-office address, but must be addressed to the attorneys of record in the action. It must be served on the attorney of the party who appeals. (Fry v. Bennett, 1 Abb. Pr. 352; Code of Civ. Pro., § 1351)
   Rapallo, J.

We think the notice of entry of judgment complied with rule 2, which provides that all papers served or filed must be indorsed or subscribed with the name of the attorney or attorneys, and his or their office address or place of business.” The notice was signed by the plaintiff’s attorneys and was indorsed upon the copy judgment served therewith. The whole paper was indorsed with the names of the plaintiff’s attorneys and their office address. The rule does not require that the office address be stated more than once upon the same paper or set of papers.

The other objection stated is that the notice was not properly addressed. The attorneys of record were Waters, McLellan & Dillayc. The notice was served at the office where they transacted their business, was received by their managing clerk and marked by him and entered in their register, but it was addressed to the firm of Waters & McLellan, who occupied the same office. On previous occasions admissions of service of papers in this action, served at the same office and addressed to Waters, McLellan & Dillaye, had been signed with the firm name of Waters & McLellan. Waters belonged to both firms, and the former firm existed only with reference to unfinished business. There is no rule covering such a case. The notice was served at the proper office and delivered to the proper person, and was retained, and as no one could have been prejudiced by the omission to insert in the address the names of all the partners in the firm of attorneys, we think the service should be held sufficient. Although strict practice must be pursued to limit the time to appeal, and even a technical irregularity in giving the required notice will be considered, still there must be some irregularity, and a mere inaccuracy in the notice which violates no rule of practice and is in itself immaterial, will not be sufficient to avoid it.

The appeal not having been taken until seventy-three days after the service of the copy judgment and notice of entry, was too late, and the motion to dismiss should have been granted.

Order appealed from reversed and motion granted, with costs.

All concur.

Ordered accordingly.


source: Caselaw Access Project

author: Danforth, J.

license: Public Domain

text:
    Charles Nelson, Respondent, v. The Village of Canisteo, Appellant.
    A village incorporated under the act of 1870 (Chap. 291, Laws of 1870), by the act of incorporation assumes the duty of caring for and repairing its streets, and for its neglect to do so is liable to a party injured.
    It is no defense, therefore, that the defect complained of existed at the time of the incorporation, or that the municipality has omitted to make ordinances or by-laws in reference to repairing its streets.
    Where numerous exceptions appear in a case, most of which are untenable, but some one of them may be sustained by reason or authority, the attention of the court should be specifically called thereto; it is not sufficient to group them all together in the points of counsel under a single allegation of error, without stating a ground to support any one.
    (Argued June 19, 1885 ;
    decided October 6, 1885.)
    Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made October 20, 1882, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.
    This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence in omitting to keep one of its streets in repair.
    The facts appear sufficiently in the opinion.

      Eli Soule for appellant.
    The power of the trustees to make ordinances is of a legislative and judicial character, to be exercised at such time and in such manner as they in their judgment shall deem proper. An omission to exercise such power imposes no liability on the corporation. (Levy v. Mayor, etc., 1 Sandf. 465; Griffin v. Mayor, etc., 5 Seld. 459 ; Goodrich v. Chicago, 20 Ill. 445 ; 2 Dill, on Mun. Corp. [2d ed.], § 753, and note; 1 R. S. [7th ed.] 805; Weet v. Trustees of Village of Brochport, 16 N. Y. 161, note; Conrad v. Village of Ithaca, id. 158; Laws of 1870, chap. 291, § 1, tit. 7.) A municipal corporation, bound to keep its streets in repair, does not become an insurer of travelers thereon. It is under no obligation to provide for everything that may happen upon its streets, but only for such use of them as is ordinary, or as may reasonably be expected. (Ring v. City of Cohoes, 77 N. Y. 83.) Where power is conferred upon a municipal corporation to make local improvements, its exercise is quasi judicial or discretionary, and for a failure to act, or an erroneous estimate of the public needs, a civil action cannot be maintained against it. (Urquhart v. Ogdensburg, 91 N. T. 67.) A municipal corporation is not liable for an accident occasioned by a defect in the plan upon which a public work is constructed. (Urquhart v. Ogdensburg, 91 N. Y. 67, 71.) Every encroachment upon a highway is not a nuisance. (Peckham v. Henderson,
      27 Barb. 207 ; Harrower v. Ritson, 37 id. 301; Goldsmith v. Jones, 43 How. 415 ; Howard v. Robbins, 1 Lans. 63.) Determining whether an encroachment is a nuisance or not, is a judicial act. (Ring v. City of Cohoes, 77 N. Y. 83, 90) The trustees of the village had no power to abate a nuisance. (Laws of 1870, chap. 29 L, tit. 3, § 3, subd. 20; Griffin v. Mayor, etc., 5 Seld. 459; Goodrich v. Chicago, 20 Ill. 445; 2 Dill, on Mun. Corp. [2d ed.], § 53, note.) The trustees of a village are not bound to be experts or skilled mechanics. (Hume v. Mayor, etc., 47 N. Y. 639.) The public authorities are not presumed to have notice of a latent defect in the covering of an opening in a sidewalk which was not made by them or under their direction. (Hart v. City of Brooklyn, 36 Barb. 229.) The village is not bound to provide for any thing which may not reasonably be expected to happen in the proper use of the walk. (Ring v. City of Cohoes, 77 N. Y. 83.) The question of the sufficiency of the covering of the hatchway when the doors were closed was not before the referee. (Storrs v. Flint, 46 Supr. Ct. [J. & S.] 498; Southwick v. Bank of Memphis, 84 N. Y. 420.)

      J. F. Wetmore for respondent.
    The hatchway was a visible, prominent and dangerous nuisance of which defendant’s trustees had sufficient notice. (Todd v. City of Troy, 61 N. Y. 506, 507; Regua v. City of Rochester, 45 N. Y. 136 ; Davenport v. Ruckman, 10 Bosw. 20; 37 id. 568, 570; Williams v. Brown, 15 id. 360; Niven v. City of Rochester, 76 id. 619; Hart v. City of Brooklyn, 36 Barb. 226; Hyatt v. Trustees of Rondout, 44 id. 385 ; Ploedterll v. Mayor, etc., 55 N. Y. 666; Hunt v. Mayor, etc., 74 id. 264; reviewing 9 Hun, 674; Constructive Notice, 29 Alb. L. J. 244, 246; Wade’s Treatise on Law of Notice, 8, § 11.) Aside from the visible obstruction of the sidewalks, there was considerable evidence given on the trial bearing on the question of constructive notice to the defendant as to the otherwise dangerous condition of the sidewalk, and this having been decided in favor of the plaintiff as a question of fact, from the evidence it is not the office of an appeal to review such questions. (Packer v. Jarvis, 3 Keyes, 271; Lewis v. Blake, 10 Bosw. 198; Godfrey v. Johnston, 1 Keyes, 556; Weber v. N. Y. C. R. R. Co., 58 N. Y. 451; Massoth v. D. & H. C. Co., 6 Hun, 314; 64 N. Y. 524; Terry v. Jewett, 17 Hun, 395.) Among the duties delegated by the legislature to municipal corporations which are mandatory, is to remove and. make safe dangerous obstructions and excavations in the sidewalks and streets, and to keep them in repair, and the agents of the corporation are charged with this duty, and are bound to exercise an active vigilance in so doing. (Hudson v. Mayor, etc., 9 N. Y. 163 ; Clemence v. City of Auburn, 66 id. 334; Clark v. Village of Lockport, 49 Barb. 158; Conran v. Village of Ithaca, 16 N. Y. 158; Clifford v. Dam, 81 id. 52 ; 80 id. 216.)
   Danforth, J.

That the plaintiff was injured, and that the injury was occasioned by a cause over which the defendant had control and power of prevention, are two facts about which there is no dispute. The only question is, whether it was within the duty of the defendant as "well as within its power to act in relation to the matter. It was organized as a village in 1873, under the “ act for the incorporation of villages.” (Laws of 1870, chap. 291.) The injury was suffered by the plaintiff in December, 1877, while passing through one of its streets, by stumbling over a hatchway projecting into and above the sidewalk. It was in that condition when the village was incorporated, and the only affirmative answer by the defendant to the plaintiff’s claim for compensation was “ that the injuries complained of were caused” by his own neglect and fault. But this has been found the other way by the referee, and his conclusion, sustained as it is by the Supreme Court, and not without evidence to warrant it, is conclusive here. So are his findings that by the obstruction the way was made dangerous, that the trustees of the defendant had knowledge of it and its condition from the very time of its inception, and were guilty of negligence in not removing, or compelling its owner to remove it. The point made by the learned counsel for the appellant is that although it had power to do either, it was not bound to exercise it. In this respect, however, we think its duty was not less than its power. Indeed it has been so uniformly and frequently held by the courts of this State that a municipal corporation, having power to maintain and control streets, is bound to exercise ordinary and reasonable care and diligence to see that they are kept in a reasonably safe condition for public travel, that a general rule to that effect may now be considered as established and to be applicable, whether the act or omission complained of and causing the injury was that of the municipal authorities or some third party. (Conrad v. Ithaca 16 N. Y. 158; Weet v. Brockport, id. 161; Salisbury v. Ithaca, 94 id. 27.) The principle applies here, unless as the appellant claims the power of the trustees was “ limited to making ordinances and by-laws, undei: which nuisances might be abated.” It does not seem to be. They might make both, but the omission to do so in no way relieves the village from the duty of caring for and preparing its streets. This was assumed by the very act of organizing as a village under the statute referred to, and for its neglect to the plaintiff's injury, the action has been properly maintained.

We have not failed to observe that the learned counsel for the appellant has grouped together upon his points, under a single allegation of error, exceptions to the admission of testimony and to the rejection of testimony, to the refusal of the referee to nonsuit and to his refusal to find as requested, and to his findings and conclusion as actually made. The exceptions are very numerous. No ground is stated for the support of any one. By examination we learn that some at least are not well taken. We find none that seem to be. If among so many, any one can be sustained by reason or authority, our attention should have been called to it more specifically.

The judgment appealed from should be affirmed.

All concur.

Judgment affirmed.


author: Finch, J.

text:
    James G. Fargo, as President of the Merchants’ Dispatch Transportation Company, Respondent, v. William Milburn et al., Appellants.
    (Submitted June 19, 1885 ;
    decided October 6, 1885.)
    Plaintiff, a common carrier, received at Chicago certain merchandise to be transported to Antwerp ; it issued to the shippers through bills of lading, which stated that the goods were to he transported to New York and there delivered on hoard defendant’s steamship F. for transportation to the place of destination; the inland freight to New York and the ocean freight from thence to Antwerp were separately stated. The goods were delivered on board the F., plaintiff taking the captain’s receipt therefor. Defendants had chartered the steamer to the firm of D. & R., but they were notified that plaintiff would not deal with that firm, and the captain promised, in accordance with custom, to give bis draft for the inland freight before sailing. He did not do this and issued no bills of freight for this part of the cargo. The goods were transported to Antwerp and defendants collected the entire freight. Before they made any remittances on account of the freight they were notified of plaintiff’s claim and forbidden to pay any of the inland freight to D. & R.; they, however, accounted to said firm therefor. In an action to recover .the inland freight, held, it was to be presumed that the captain saw before sailing the hills of lading issued by plaintiff, and as defendants in no manner repudiated plaintiff s authority to act for them or declined the shipment, and as they collected the freight, not upon any order or authority of D. & R., but under said bills of lading, they thereby ratified and adopted the same and were liable.
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made March 30, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict.
    This action was brought to recover moneys alleged to have been received by defendants for and on account of the plaintiff’s company.
    The evidence was to the effect that' James Warrack, plaintiff’s agent at Chicago, received from parties in that city certain merchandise to be transported to Antwerp. Warrack issued to the shippers bills of lading, which stated in substance that the goods were to be transported by plaintiff to Mew York and there delivered on board the steamship Fernwood, which belonged to defendants, to be conveyed to Antwerp. The freight charges from Chicago to New York and from thence to Antwerp were apportioned and separately stated upon the bills. The Fernwood had been chartered for the voyage by defendants to Dill & Radmann of New York: The goods were delivered on board that vessel, were transported to Antwerp, delivered to the consignees, and defendants’ agent collected and received the through freight. The further facts appear in the opinion.

      William Allen Butler for appellants.
    The master could not bind his owners beyond the ordinary terms of a bill of lading. He was not their general agent, but only a special agent for navigating the vessel. The owners are not bound for any acts done by the master outside of the scope of his particular employment. (Gen. Int. Ins. Co. v. Ruggles, 12 Wheat. 408; Pope v. Nickerson, 3 Story, 465; 2 Pars, on Ship, and Adm. 7.) Under the charter party the entire cargo was to be furnished by the charterers, and all the cargo sent on board was, as between the owners and the charterers, cargo furnished by them, no matter .from whom received. (Newberry v. Colvin, 7 Bing. 190 ; Schuster v. McKeller, 7 El. & Bl. 704.) The whole arrangement by which the plaintiff, in conjunction with the charterers, undertook to make contracts for through freights from Chicago to Antwerp, and to issue bills of lading, binding the Fernwood, was without the knowledge or privity of the defendants, and was, therefore, so far as the plaintiff was concerned, wholly at his own risk, and by the terms of the charter party all goods shipped on the Fernwood were subject to the owners’ lien, and to the terms of the charter party. (McFarland v. Wheeler, 26 Wend. 467.)

      Hamilton Cole for respondent.
    It was upon the express understanding that the captain of the Fernwood was to give a captain’s draft for the inland freight that the goods were delivered to the steamer, and in making such promise he acted as agent of the owners and within the scope of his authority. (Ford’s Law of Ship. 200 ; 2 Pars, on Ship, and Adm. 1; Abbott’s Law of Merch. Ship. [12th ed.] 84, 315.) No point can now be raised that there was any question for the jury. (Todd v. Todd, 3 Hun, 298 ; Barnes v. Perine, 12 N. Y. 18; Winchell v. Hicks, 18 id. 558 ; O’Neill v. James, 43 id. 85.)
   Finch, J.

This case was disposed- of by the court; each party asking that a verdict be ordered, in his own favor, and neither requesting that any issue of fact be submitted to the jury. The sole question, therefore, is whether upon some reasonable view of the facts the judgment for the plaintiff can be sustained; for which purpose, where the evidence is contradictory, we must assume as having been found, where that could fairly have happened, the version which leads to an affirmance.

That the inland freight was earned and belonged to the plaintiff; that its amount was fixed and known ; that the owners of the vessel collected it upon through bills of lading drawn by the plaintiff, assuming to act as agent for the ship, and upon which the property was delivered to the consignees; that the captain promised in accordance with custom to give his draft for such inland freight before the sailing of the vessel, and was notified that the plaintiff would not deal with Dill & Radman, the charterers ; that the property was delivered taking the mate’s receipt, which was afterward exchanged for the captain’s receipt; all these are facts, either uncontradicted or supported by the preponderance of proof, and which justify the judgment rendered. The effort of the owners is to shift their liability to the charterers, and ignore any contract with or duty to other persons. In doing so they rely largely upon the fact that the captain issued no bills of lading for this specific part of the cargo. Assuredly he ratified those which were issued. They were drawn at Chicago, and covered the entire transportation from that city to Antwerp, specifying the Fernwood as the ocean, carrier, signed by War rack as agent, severally and not jointly,” and so claiming to represent and bind the plaintiff as to the inland transportation, and the ship as to the remainder. These bills of lading we must assume from the proof were shown to the captain before he sailed, with their statement of the separate amounts of the inland and ocean freight; who in no manner repudiated the authority or declined the shipment under it, but commented only upon the amounts; and who, on arriving at Antwerp, delivered the goods to the parties holding the bills signed by Warrack and not upon any order or authority of Dill & Eadman; who collected the freight according to their terms, and so recognized the shipment as made under the Chicago bills of lading. Warrack’s agency was thus ratified instead of repudiated. It is true that the captain claimed in his evidence to have shipped his whole cargo for Dill & Eadman, issuing the bills of lading when and as presented by Dill & Eadman, and yet he is forced to admit that when at sea he found he had cargó for which he had issued no bills of lading, which, therefore, was not shipped by the charterers, and which was represented first by the mate’s receipt given “ subject to charges,” and then by his own given in exchange; and so it is easy to put confidence in the plaintiff’s proof which harmonizes and explains the known facts in the case. It may very well be that Dill & Eadman assented to this shipment as part of the cargo, but nothing in the case indicates that the property in question was delivered to them, or upon their responsibility for the inland freight, but every thing points to'"a shipment by the plaintiff and upon the responsibility of the vessel as it respected such freight. We can see no just ground upon which the money of the plaintiffs, collected upon the bills of lading which they issued, received for them and known to be due to them, could be diverted from their ownership and paid over to Dill & Eadman, or involved in the ship’s account with that firm. On the 21st of Februaiy, 1878, the agents of the owners were notified in writing, formally and precisely, of the plaintiff’s claim, and forbidden to pay any of the . inland freight to Dill & Eadman; and it appears that no remittance for anybody in New York, on account of such freight, was made until March of that year, when a balance of about $1,000, lessened by a claim against Dill & Eadman for four days’ demurrage at £50 a day, which they disputed and have never allowed, was sent to the owners’ agents in ífew York and appears to be still held by them. If, by the terms of the charter-party, demurrage was a lien upon the cargo, it was only so upon the goods shipped under it by Dill & Eadman, and we are satisfied that the shipment in question was not of that character, but under the plaintiffs bill of lading, ratified and adopted on behalf of the vessel.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Ruger, Ch. J.

text:
    The Third Avenue Railroad Company, Respondent, v. Jacob Ebling et al., Appellants.
    (Argued June 33, 1885 ;
    decided October 6, 1885.)
    An appeal from a judgment entered on a verdict must be determined solely upon exceptions taken on the trial.
    An exception can be taken only to a ruling by the trial court upon a question of law.
    Where there is no exception to a ruling of the court as to the sufficiency of the evidence to establish a fact in issue and the defeated party desires to move for a new trial, he must do so in the first instance before the trial court or at Special Term. (Code of Civ. Pro., §§ 999, 1003.)
    Not having done this, no question affecting the merits or the sufficiency of the evidence to support the verdict may be raised at General Term.
    An exception to the admission of evidence may only be taken when it is received against the parties’ objection.
    It is not essential to the validity of an order of the General Term allowing an appeal to this court, in the cases wherein an appeal is not permitted except when so ordered, that the.General Term making the order shall be composed of the same judges who constituted the General Term which decided the case. The only restriction upon the power of the General Term to make the order is that it shall be "made at the General Term which rendered the determination or at the next General Term after judgment is "entered thereupon.” (Code of Civ. Pro., § 191, subd. 3 and 3.)

      Appeal from order of the General Term of the Court of Common Pleas in and for the city and county of New York, made March 15, 1883, which reversed a judgment of the General Term of the Marine Court of said city affirming a judgment in favor of defendants entered upon a verdict.
    This action was brought upon a lease, to recover a quarter’s rent alleged to be due thereon. The answer alleged among other things a surrender of the lease and of the demised premises and an acceptance of such surrender by plaintiff.
    The facts so far as material to the questions discussed are stated in the opinion.

      Nathaniel C. Moak for appellants.

      H. Morrison for respondent.
   Ruger, Ch. J.

We think the Court of Common Pleas erred in reversing the judgment, rendered by the Marine Court in favor of the defendants. It assumed to do so upon the strength of an alleged exception, to the admission of evidence, offered by the defendants upon the trial, but in fact there is no such exception. It was attempted to be taken in this manner. One of the defendants, called as a witness in his own behalf, was asked to relate certain conversations occurring between himself and the plaintiff’s president, secretary and treasurer, in reference to an alleged surrender of the lease sued upon. These questions were objected to by the plaintiff, and were excluded by the court. The plaintiff’s counsel then stated: “ I will withdraw my objections, and consent that the case proceed, believing that the jury will find from the evidence for the plaintiff, at the same time I will except, in order to secure the rights of my clients, to any evidence as to powers of individual members of the company to modify a lease made by the board of directors.” The court: “I will allow the jury to find a verdict subject to the opinion of the court.” Some evidence was then given as to interviews, between those officers and defendants, but when the defendants sought again to prove the conversations referred to, the plaintiff objected, and the evidence was again excluded by the court. The plaintiff’s counsel then said: I consent that the question at issue, independent of the fact whether that conversation occurred or not, shall go to the jury, except Mr. Lyons’ assertion.” Although this remark is somewhat unintelligible in itself, yet interpreted in the light of the preceding statement, and the subsequent course of the trial, it can be held to mean nothing but a waiver of the objections to the proposed evidence. . The evidence thereafter taken was received in accordance with the understanding expressed in the remarks of the plaintiff’s counsel, and without any ruling by the court upon the question of its admissibility. Such evidence tended to show an agreement between the parties by which the plaintiff accepted a surrender of the lease in question from the defendants prior to the commencement of the quarter, for which rent is claimed in this action. In submitting the ease to the jury the court charged, among other things, “that in order to constitute such surrender,” not only must there be an understanding on the part of Ebling and Kinney that they were to be released and other parties accepted in their place, but there must be such a contract entered into between these parties that the minds of both parties” “ met, and that both the parties understood the agreement. If both parties came to this understanding as narrated by the defendants, you will be warranted in finding for the defendants, while if you believe otherwise, you will find for the plaintiffs.” The plaintiff’s counsel neither excepted to this charge nor to any refusal of the court to charge otherwise.

The jury found for the defendants: The right of the defendants to a judgment on the verdict was not in any way questioned by the plaintiff, and it seems to have been entered as of course. JSTo motion was made for a new trial before the trial court or at Special Term, and the only attempt at review is upon an appeal from the judgment entered on the verdict. Such an appeal must be determined upon the exceptions taken on the trial. The remark made by the court on receiving the evidence, that it would take the verdict subject to the opinion of the court, was not acted upon and no proceeding was thereafter taken to determine such a question as would have been presented by a verdict so taken. (§ 1000, Code Civ. Pro.) Under these circumstances if the plaintiff desired to move for a new trial upon the facts, it should have done so in the first instance before the judge presiding at the trial upon his minutes (Code Civ. Pro., § 999) or at Special Term. (Code Civ. Pro., § 1002.) Hot having done this, no question affecting the merits, or the sufficiency of the evidence, to support the verdict, could be raised at General Term. The jurisdiction of that court extended only, to a review of the exceptions taken on the trial. (Boos v. World Mut. Life Ins. Co., 64 N. Y. 236.) An exception can be taken only, to a ruling by the court upon a question of law arising on the trial of an issue of fact. Here there was no such ruling and consequently no exception. (Code Civ. Pro., § 992.) The evidence offered was invariably ruled out by the court when objected to, and was finally received only after the plaintiff had waived its objection thereto.

If the plaintiff desired to raise any question as to the sufficiency of the evidence to prove a surrender of the lease, it should have done so by some appropriate request upon the trial of the case, and by an exception to the ruling of the court in case the request was denied; but it failed to obtain any such ruling upon the disputed question in the case.

Even if "we could assume that the proceedings related, amounted to a constructive ruling by the court, we are of the opinion that no exception taken under such circumstances would be effectual. An exception to the admission of evidence can be taken only when it is received against the parties’ objection. When the objection thereto is waived, the conduct of the court in receiving the evidence, is relieved from any imputation of error.

The respondent moved to dismiss the appeal here, upon the ground that the judges who authorized it were not the same persons, who constituted the General Term deciding the case. The alleged ground constitutes no reason for dismissing the appeal. There is no restriction imposed upon the power of the court below, to make an order for an appeal to this court, except that it shall be made at the General Term, which either rendered the determination appealed from or the one sitting next after judgment is entered thereupon. (Code Civ. Pro., § 191, subd. 2, 3.) If the court granting the order is properly constituted so as to form a lawful General Term, it is immaterial, so far as the exercise of the power to authorize an appeal is concerned, what individuals compose it. It is still the court authorized to make the order.

The order of the Common Pleas should be reversed, and the judgment of the Marine Court affirmed.

All concur.

Order reversed and judgment affirmed.


author: Earl, J.

text:
    Frederick Zoeller, Appellant, v. Julia A. Riley, Administratrix, etc., Respondent.
    (Argued June 9, 1885;

    decided October 6, 1885.)
    The burden of proof is upon the party claiming an estoppel by a former judgment, to show clearly that the fact in issue was determined in the former action.
    A purchaser on sale under a chattel mortgage is not concluded by a subsequent adj udication, in an action against the mortgagor and mortgagee, to which he was not made a party, that the mortgage was fraudulently made.
    Where the purchase was in good faith, the title of the purchaser is not affected by the fact that the mortgage was executed in pursuance of a conspiracy between the mortgagor and mortgagee to hinder, delay and defraud the creditors of the former.
    A debtor- may dispose of property with intent to defraud his creditors, and yet give a good title to one who pays value and has no knowledge of, and does not participate in, the fraud.
    The pendency, at the time of the purchase, of an action brought by the creditor against the fraudulent mortgagor and mortgagee, to recover damages for the conspiracy, at least where the complaint has not been filed, is not notice to the purchaser of any infirmity in the mortgage.

      Appeal from judgment of the General Term of the City Court of Brooklyn entered upon an order made April 18,1884, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial.
    The nature of the action and the material facts are stated in the opinion.

      James D. Bell for appellant.
    The burden of proof rests upon those who rely upon the estoppel to show all the facts in regard to the identity of the issue and of the parties. {Duchess of Kingston's Case, 2 Smith’s L. C. 784; Broom’s Leg. Max. 338; 1 Greenl. on Ev., §§ 532-538; Bigelow v. Winson, 1 Gray [Mass.], 299 ; Clemens v. Clemens, 37 N. Y. 59 ; Freem. on Judg., §§ 159, 276.) Unless estoppel is shown, the estoppel does not arise. (Clemens v. Clemens, 37 N. Y. 59.) To impeach a chattel mortgage for fraud, it is not competent to show other fraudulent mortgages on the same goods. (Ford v. Williams, 13 N. Y. 577; Kerr v. Hayes, 35 id. 331; Booth v. Powers, 56 id. 22; Stowell v. Chamberlain, 60 id. 272; Dawley v. Brown, 79 id. 390.) A vendee or assignee will not be estopped by a recovery against the vendor or assignor subsequent to the ..sale or assignment. (Campbell v. Hall, 16 N. Y. 575; Raymond v. Richmond, 78 id. 351; Doe v. Earl of Derby, 1 Ad. & El. 783 ; Adams v. Barnes, 17 Mass. 365 ; 1 Greenl. on Ev., § 536; Freem. on Judg., § 201.) And this, though the property be transferred while an action is actually pending, unless some strict proof of Us pen-dens be made by the person invoking the estoppel. (Leitch v. Wells, 48 N. Y. 585 ; Sutherland v. Bradner, 34 Hun, 519.) The defendant having offered the judgment-roll in evidence for a specific purpose — that is to bind plaintiff as an estoppel — plaintiff’s general objection thereto is good as matter of fact; nothing had been proved showing under the rules that it was relevant or binding as an estoppel. (Levin v. Russell, 42 N. Y. 251; Williams v. Sargent, 46 id. 351.) It is immaterial when the judgment in Quimby v. Strauss was rendered, if, before an execution on it was delivered to the sheriff, the plaintiff purchased the goods in controversy. (Leonard v. Barker, 2 Denio, 220; Ridgely v. Spencer, 2 Binn. 75 ; Freem. on Judg. [3d ed.], § 251.) As defendant did not show that this property was purchased pendente lite, the plaintiff is not bound by the result of the action. (Wade on Notice, §§ 342, 351, 372, 375 ; Leitch v. Wells, 48 N. Y. 585; Freem. on Judg., § 197.) There being no proof of any levy upon the goods in controversy under any judgment against any party through or from whom the plaintiff derived his possession or title, it was error to have dismissed the complaints. (Code of Civ. Pro, § 1409.) As plaintiff had actual possession of the property converted when it was taken by defendant, the defendant having proved no title, warrant or authority under which he took the goods, is a mere trespasser, and possession is sufficient evidence of title as against a mere trespasser. (Armory v. Delamirie, 1 Str. 504 ; 1 Smith’s L. C. 374; Duncan v. Spear, 11 Wend. 54; Faulkner v. Brown, 65 N. Y. 310; Stowell v. Otis, 71 id. 36; 2 Greenl. on Ev., § 637; Story on Bail., § 93 d, e, f; 3 Blackst. Com. 152, note by Chitty; Knapp v. Winchester, 11 Vt. 351; Coffin v. Anderson, 4 Blackf. [Ind.] 375 ; Carter v. Bennett, 4 Fla. 283; Giles v. Grover, 6 Bligh, 277; Addison v. Rounds, 4 Ad. & El. 709; Cook v. Patterson, 35 Ala. 102; Harker v. Dennet, 9 Gill, 7.) To let in proof that plaintiff’s title was fraudulent, defendant must first show, (1) that he seized the goods under valid process, and (2) that the persons at whose instigation the process was issued were creditors with a special lien either by judgment or attachment against them. (Castle v. Noyes, 14 N. Y. 329 ; Rinchy v. Stryker, 28 id. 45; McKinley v. Bowe, 97 id. 93; 2 Greenl. on Ev., § 629.)

      Thomas E. Pearsall for respondent.
    A former judgment of a court of competent jurisdiction directly upon the point in issue is a plea in bar, or, as evidence, is conclusive between the same parties, or others claiming under them, upon the same matter directly in question in a subsequent suit or proceeding. (Clemens v. Clemens, 37 N. Y. 74; Dunham v. Bower, 77 id. 76 ; Tuska v. O'Brien, 68 id. 447; Doty v. Brown, 4 id. 71; Kingsland v. Spaulding, 3 Barb. Ch. 341; 5 Com. 550; 2 Hen. & Munf. 55.)
   Earl, J.

On the 26th day of September, 1878, James Cavanaugh, being the owner of some carriages, horses and other chattels used in a livery-stable kept by him in the city of Brooklyn, mortgaged them to Joseph H. Strauss, to secure the payment to him of $1,000 and interest on demand. Strauss took possession of the property under his mortgage January 21, 1879, and on that day caused it to be sold by auction, at which he purchased it for $1,000. On the same day he sold it to Joseph Cavanaugh, a son of James, for $1, 000, and took from him a mortgage thereon to secure the whole purchase-price payable on demand. On the 19th day of May, 1880, Strauss sold and assigned the mortgage to the plaintiff for the sum of $750 paid to him, and he took possession of the property mortgaged. Thereafter Thomas M. Riley, as sheriff of Kings county, the defendant’s intestate, seized and took from, plaintiff’s possession one of the carriages under an execution issued upon a judgment recovered against James Cavanaugh by James M. Quimby and others, and then this action was commenced to recover for the conversion of the carriage. The sheriff in his answer alleged that the carriage was the property of James Cavanaugh, and justified the taking under the judgment and execution named. Upon the trial the plaintiff’s title and the taking were proved as alleged. The sheriff did not give formal proof of the judgment and execution, but they seem to have been assumed upon the trial, without dispute, and we will assume them for the purposes of this appeal. At the close of the plaintiff’s proofs the defendant put in evidence the proceedings had and judgment recovered in an action brought by Quimby and others against Joseph H. Strauss, Baldwin F. Strauss and James Cavanaugh, to recover damages for a conspiracy to defraud them in the collection of the same judgment against James Cavanaugh, upon which the execution above mentioned was issued, and another judgment, and claimed that by that judgment it was conclusively established that the mortgage executed by James Cavanaugh to Joseph H. Strauss, above mentioned, was fraudulent and void, and that the plaintiff was estopped by that judgment, and the trial judge so held, and nonsuited the plaintiff. The sole matter for our determination is the effect of that adjudication upon the rights of the plaintiff in this action.

In the conspiracy action the plaintiffs alleged the recovery by them of two judgments against James Cavanaugh, one for $223.43, March 26, 1877, and another for $498.51, April, 1877, and that the defendants had conspired and fraudulently done various things to defeat them in the collection of their judgments, and among other things they alleged that Cavanaugh had placed a mortgage of $1,500 upon his livery property to Croghan and Haley, which was fraudulent and without consideration; that the defendants held out and pretended that one Louis Baer, a relative of the defendants Strauss, owned the property, and that Cavanaugh also gave the mortgage hereinbefore mentioned of $1,000 to Joseph H. Strauss, which sum was not then due or owing to him. Upon the trial of that action evidence was given by the plaintiffs therein to establish the various acts of conspiracy and fraud alleged against the defendants, and the defendants gave evidence tending to show that the mortgages, and particularly the mortgage for $1,000, were given for full consideration. The judge presiding at the trial of that action charged the jury that if the defendants were guilty of the wrongs alleged, the plaintiffs were entitled to a verdict for the damages sustained by them, which verdict should include the amount of the two judgments and interest and other damages caused to the plaintiffs. The jury rendered a verdict for $1,300 against James Cavanaugh and Joseph H. Strauss, and found no cause of action against the other Strauss. Joseph H. Strauss appealed from the judgment entered against him to the General Term, and from affirmance there to this court, and here the judgment was affirmed. (90 N. Y. 664.)

We are of opinion that that judgment did not conclusively establish, as against the plaintiff, that the mortgage assigned to him was inoperative and void, and thus did not give him a valid lien upon or title to the carriage taken by the sheriff. (1.) It is not clear that the jury found in the conspiracy action that the mortgage for $1,000 was fraudulent and without consideration. There was abundant evidence from which they could have found that that mortgage was based upon a full consideration, and that it was given to secure Joseph H. Strauss for an honest debt. The proof was very strong, if not conclusive, that Cavanaugh owed Croghan and Haley only about $400, and that lie gave the mortgage for $1,500, for the express purpose of defrauding Quimby & Co. from collecting their debts, and the giving of that mortgage and other wrongful acts may have induced the verdict, while the jury found the other mortgage valid and free from fraud. It is sufficient to say that we cannot be certain that there was in that action any adjudication condemning that mortgage, and the burden was upon the defendant to establish that fact. (Clemens v. Clemens, 37 N. Y. 59; Russell v. Place, 94 U. S. 606.) (2.) Neither the plaintiff nor Joseph Cavanaugh was a party to that action, and therefore they were not bound by the adjudication therein. That action was originally commenced against the defendants Strauss alone November 9, 1878. Subsequently James Cavanaugh was added as a party, and the amended summons and complaint were served upon him November 14,1879. The action was tried and verdict therein rendered March 25, 1880, and the judgment was entered May 27, 1880. The livery property was sold to Joseph Cavanaugh January 21, 1879, on which day he took possession thereof and executed the mortgage under which the plaintiff claims, and that mortgage was assigned to the plaintiff May 19, 1880. It is thus seen that long before the conspiracy action was commenced against James Cavanaugh, Joseph Cavanaugh had obtained his title to the property through a sale made under a power given by James. It matters not that he took his title immediately from Joseph H. Strauss, who was a party to that action, as the title came to him before verdict and judgment in that action. Therefore, no adjudication made in that action subsequently to his purchase could bind him. (Freem. on Judg., § 201; Adams v. Barnes, 17 Mass. 365; Campbell v. Sail, 16 N. Y. 575.) There was no adjudication upon the plaintiff’s mortgage or title in that action, and he has all the right and title which Joseph Cavanaugh had, and he holds under him. (3.) But there is a still more radical answer to the' alleged estoppel. We may assume that it was established in the conspiracy action that the mortgage of James Cavanaugh was fraudulent, and made with intent to hinder and delay Qúimby & Co. in the collection of their judgment, and yet the nonsuit cannot be upheld. Joseph Cavanaugh must here be deemed a bona fide purchaser of the property for value. Whether his title be deemed to have come from James Cavanaugh or Joseph H. Strauss, or from both of them, it was perfect against the whole world. Even if they intended fraud in the disposition of the property they made, they could give a good title to a bona fide purchaser for value, and such he was, as he gave his promissory notes for the property and paid one or more of them. A person who has purchased property under such circumstances that the seller could avoid it for fraud can yet give a good title to a bona fide purchaser for value. (Simpson v. Del Soyo, 94 N. Y. 189.) So a debtor may dispose of his property with the intent to defraud his creditors and yet give a good title to one who pays value and has no knowledge of, and does not participate in the fraud. (2 R. S. 137, § 5 ; Starin v. Kelly, 88 N. Y. 418 ; Murphy v. Briggs, 89 id. 446; Parker v. Conner, 93 id. 118.) Therefore, after the sale of this property to Joseph Cavanaugh it ceased to be the property of James Cavanaugh for any purpose. It had passed beyond the reach of his creditors and could not be seized for his debts except upon proof of a fraudulent intent by him and Joseph H. Strauss not only, but also upon proof assailing for fraud the purchase of Joseph Cavanaugh. Therefore if it should be held that the mortgage of James Cavanaugh to Strauss was fraudulent and void as to the judgment creditors of the mortgagor, that would not justify the seizure of the property in the possession of Joseph Cavanaugh, or of any one who purchased it from or under him.

It cannot be well claimed that this plaintiff’s rights are in any way affected because the mortgage assigned to him was given and assigned while the conspiracy action was pending. That action was not commenced to determine the status of that mortgage, or of the prior mortgage, or of the property covered thereby, and that mortgage and that property were not the subject of that action. It was simply an action to recover damages for a conspiracy, and hence, certainly as no complaint had been filed, the pendency of that action was not notice to any one not a party thereto of any infirmity in or claim against either mortgage. (Leitch v. Wells, 48 N. Y. 585.)

The judgment should be reversed and a new trial granted, costs to abide event.

All concur.

Judgment reversed.


text:
    William W. Wood, Respondent, v. Charles L. Knapp, Appellant.
    As the comptroller’s deed, on sale of non-resident lands for taxes, is made by statute (§ 65, chap. 437, Laws of 1855) presumptive evidence of the regularity of all proceedings necessary to authorize him to make the sale and give the deed, the burden of proof is upon the party questioning the title of the grantee of showing by affirmative evidence that in the proceedings under which the sale was made some material requirement of the statute has not been complied with or has been defectively performed.
    A return by a town collector or county treasurer of unpaid taxes on lands of non-residents is not evidence of the contents of the assessment-roll; and so, is insufficient to establish an alleged invalidity in the assessment.
    It is not essential that in the list of lands chargeable with the payment of taxes and interest transmitted by the comptroller to the county treasurer, it should be stated that the lands are so charged. A statement in the list that the lands are liable to be sold for the taxes therein referred to and that they will be sold for such taxes and interest is a sufficient compliance with the statute (§ 84).
    (Argued June 19, 1885 ;
    decided October 6, 1885.)
    In an action of trespass where the question was as to the validity of a title under a comptroller’s deed the proof of publication in the State paper of notice of sale to take place November 13, 1866, showed that it was published “ once in each week for ten weeks successively, commencing on the 20th of July, 1868, and ending 21st September, 1866.” Held, the proof sufficiently showed publication for the “ space of ten weeks ” as required by the statute (see Code of Civ. Pro., § 425); that a publication on the first day of the tenth week covered the whole week.
    Where a weekly publication of a notice is required, it is not necessary to show publication on the same day of each week ; it is sufficient if made on any day of each week for the requisite number of weeks.
    It was claimed that the return of the town collector to the county treasurer of unpaid taxes for the year in question was defective, in that it did . not show the amount of tax on the land sold. To prove the return a paper purporting to be a copy of said return which was obtained from the comptroller was produced- in evidence ; it was accompanied by two certificates of the deputy comptroller, neither of which stated that the paper was a copy of the whole original, but in substance that it was a correct copy of all contained in the original, relating to the land in question. Held, that the evidence was insufficient.
    It is not the province of the deputy comptroller to certify as to what is, or what is not material to a question pending in a legal tribunal ; he has power to certify to the correctness of copies of official papers in the comptroller’s office so as to make them evidence, but beyond that his certificate has no effect. " .
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial departmént, entered upon an order made November 21, 1882, 'which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury. .
    The nature of the action and the material facts are stated in the opinion.

      L. L. Shedden for appellant.
    There was no legal assessment of the lands. (Matter of Rector, etc., 61 How. 315 ; Brayley v. Seaman, 30 Cal. 610; People v. Saving Union, 31 id. 132; Lawrence v. Post, 20 Ill. 338; Wood v. Freeman, 1 Wall. 398.) The comptroller had no authority to sell until the tax and the interest thereon had remained unpaid for two years. (Laws of 1855, chap. 427, § 33.) If the account of the collector for the year 1858 is a true transcript of the original roll, as the law requires it to be, then the tax and fee must have been added by the board of supervisors. This the statute in explicit language prohibits. It was, therefore, a substantial error and rendered it void. (1 R. S. [5th ed.] 915, § 39.) The comptroller has no power to sell lands for non-payment of taxes, when there is any material error or defect in the proceedings. (Tallman v. White, 2 N. Y. 67; Johnson v. Edwards, 53 id. 431.) The court cannot indulge in a doubtful inference to sustain the proceedings. (Brown v. Eastman, 50 Barb. 639; Sharp v. Sharp, 4 Hill, 76.) The proceeding to deprive a citizen of title to his property without his consent, by sale for taxes, is in derogation of common-law right and must be strictly construed. (Doughty v. Rope, 1 N. Y. 79; Rathbun v. Acker, 18 Barb. 393; Hoyt v. Dillon, 19 id. 649.) Any irregularity in the proceeding will overthrow the presumption of validity of the deed. (Johnson v. Edwards, 53 N. Y. 431; Bonner v. Eastman, 50 Barb. 639.)

      S. A. Kellogg for respondent.
    By statute the comptroller’s deed to plaintiff’s ancestors is made “ presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land,” were regular and in accordance with law. (Coleman v. Shattuck, 62 N. Y. 358.) The return bf the collector to the treasurer of the “ account of taxes so remaining due ” does not require him to follow the exact form upon the assessment-roll, a substantial compliance is all that is necessary. (Overing v. Foote, 43 N. Y. 290.) The statute does not provide for any statement in the affidavit of the collector that the lands were non-resident. (N. Y. & R. R. R. Co. v. Lyon, 16 Barb. 656; R. S., chap. 3, art. 2, part 1, tit. 2.) It is for assessors to determine what lands are resident and what are non-resident, and in this they act judicially, and their assessment-roll, when finally completed, stands as a judgment. (B. & S. L. R. R. Co. v. Supervisors, 48 N. Y. 99, 105; Barhyte v. Shepard, 37 id. 511.) It was proper for the collector to add the fee to the sum returned by him. (Coleman v. Shattuch, 62 N. Y. 363.)
   Ruger, Ch. J.

This was an action to recover damages' for certain alleged trespasses committed by the defendant upon thirty-five acres of land in lot 14 of the gore between Old Military and Refugee tracts in the town of Mooers, Clinton county. The answer denied the complaint and justified the alleged trespasses upon the ground that they were committed upon the lands of one Blake, and by his permission and consent. Upon the trial the plaintiff put in evidence a deed from the comptroller, dated December 18, 1868, purporting to convey the lands in question to one Hubbell, by virtue of a sale thereof to him as non-resident lands for unpaid taxes, in accordance with the provisions of chapter 427 of the Laws of 1855, and several mesne conveyances finally vesting the title acquired by Hubbell, in the plaintiff, lie also proved the several acts alleged as trespasses against the defendant. The only defense attempted, was an effort to subvert the plaintiff’s title by proof of alleged irregularities in the proceeding, resulting in the comptroller’s sale, under which he claimed.

The comptroller’s deed upon the sale of non-resident lands for taxes, being made presumptive evidence of the regularity of all proceedings necessary to authorize the comptroller to make such sale, and give such deed (§ 65, chap. 427, Laws of 1855), the burden of proof was thrown upon the defendant of showing, by affirmative evidence, that some material requirement of the statute had.been omitted, or defectively performed in the proceedings under which the sale was consummated in order to establish his defense. All presumptions are in favor of the regularity of the proceedings, and in the absence of positive evidence of irregularity, it must be assumed that the necessary requirements were complied with by the several officers having duties to perform in relation to such sales. We have been unable to discover from the evidence any material defect in the proceedings.

We will notice the questions made by the appellant in the order in which they are presented in his brief.

First. It is claimed that there was no legal assessment of the lands, and several specifications taken from the collector’s returns, to the treasurer are quoted to support the objection. Such a return is not evidence of the contents of the assessment-roll, and as the roll itself was not proven or produced, there is no competent evidence of its contents in the case. We must, therefore, assume that the land was properly assessed as nonresident land by the assessors of Mooers.

Second. It is also claimed that the list of lands, chargeable with the payment of taxes and interest required to be transmitted to the county treasurer by the comptroller was defective, inasmuch as it did not state that the lands were so “ charged with such tax and interest.” This objection is untenable. The statute does not require such a statement to be-made. It makes certain lands liable to be sold for taxes and interest, and the comptroller’s list states that the lands described were liable to be sold for the taxes therein referred to, and that they would be sold for such taxes and interest. (Laws of 1855, chap. 427, § 34.) This is a sufficient compliance with the statute in respect to the matter referred to, and contains all of the information which such a notice is designed to convey.

Third. The objection is also made that the proof of publication, of such notice in the State paper, is defective, inasmuch as it does not show that it was published as required by the statute, for the space of ten weeks.” The proof is that the notice “ has been regularly published in said Albany Evening Journal once in each week for ten weeks successively, commencing on the 20th July, 1866, and ending 21st September, 1866.” This shows that there were ten weekly publications, the last one, made on the 21st day of September, being the first day of the tenth week. This publication covered the whole of the tenth week, as much as any prior publication covered the week intervening between the several publications, and would necessarily complete a publication for the full period of ten weeks. It has been held that it is .unnecessary to show publication on the same day in every week, when weekly publications are required, but that it is sufficient, if made on any day in each week during which publication is required. (Steinle v. Bell, 12 Abb. [N. S.] 176; Ronkendorff v. Taylor, 4 Pet. 361; Bachelor v. Bachelor, 1 Mass. 255.) The notice in this case was of a sale to take place November 12, 1866. The first publication was made July 20, 1866, a period of one hundred and fifteen days, or upwards of sixteen weeks, before the day of sale appointed in the notice. The rule prescribed by section 425 of the Code of Civil Procedure is that “ the time for publication of legal notices shall be computed so as to exclude the first day of publication and include the day on which the act or event of which notice is given is to happen or which completes the full period for publication.” The publication in question fully complied with this rule, and the proof showed a compliance with the statute in respect to the terms of publication.

Fourth. It is also objected that the return to the county treasurer made by the town collector of unpaid taxes for the year 1858 does not show the amount of tax on the property in question. The paper in evidence which it is claimed is a copy of such return, was obtained from the comptroller and is accompanied by two certificates, each made by the deputy comptroller. .Neither certificate states that the paper certified is a copy of the whole original. One states that they are correct extracts from said originals, and contain all therein relating to “ lot 14, State gore, Refugee tract,” and the other certifies that they are true copies of said originals in accordance with the certificates severally subscribed theretoP "It is not the province of the deputy comptroller to determine what is, or is not, material to a question pending in a legal tribunal. He has power to certify to the correctness of copies of official papers in the comptroller’s office so as to make them evidence, but beyond that his certificate has no- more effect than the opinion of any other person. From the paper furnished it is impossible for the court to say as matter of law, that it did not conform to the requirement of the statute. The omitted portions of the return, indicated in the record by asterisks, may. have contained all that was necessary to render the return a full and complete statement of the facts required. Assuming, therefore, that the return as proved does Hot show the amount of the tax, yet the evidence is insufficient to impeach the regularity of the proceedings.

We have examined the other questions raised by the appellant on the trial, but find none of sufficient plausibility to require notice.

The judgment should be affirmed.

All concur.

Judgment affirmed.


author: Miller, J.

text:
    John Turner, Respondent, v. William W. Kouwenhoven, Appellant.

      It seems the fact that a servant, employed for a stipulated period, and a part of whose duties it was to sell' property of his employer, has retained, without the consent of the latter, and failed to account for a portion of the proceeds of sales, is not alone a complete defense to an action to recover the contract-price for his services, where he has completed his full term of service.
    While flagrant acts of dishonesty, seriously affecting the master’s interest, might bar a recovery in such an action, although the amount fraudulently appropriated was much less than the amount of wages, a failure to pay over caused by mistake or neglect, in the absence of any provision in the contract covering it, will not defeat a recovery for the contract-price less the sums so retained.
    The rule that where the master for good cause discharges his servant before the expiration of the term the latter can recover nothing for the portion of the term served has no application where the servant has served out his term.
    In an action brought by a servant, after completion of his term of service, to recover the stipulated price for his services, which were, among other things, to take to market and sell the produce of defendant’s farm, defendant alleged and gave evidence tending to show that plaintiff had retained and converted portions of the proceeds of sales made by him. The court refused to charge that if plaintiff, during his term, kept back or retained without defendant’s consent any part of the proceeds of sales, he could not recover any thing, but charged that it was an implied part of plaintiff’s contract to pay over all such proceeds, and if he failed to do so, he was entitled to recover the stipulated wages less such sums as he had retained. The jury rendered a verdict for the full amount conceded to be due to him for wages. Held, this was, in effect, a finding that plaintiff had not appropriated any of- the moneys received by him which belonged to defendant, and so the request to charge, and the charge as made, were of no importance, and any error therein could not have harmed the defendant.
    (Argued June 19, 1885;
    decided October 6, 1885.)
    Also held, the burden of proof was upon defendant to show any withholding by plaintiff of the proceeds of sale; the presumption was the servant had performed his duty in this respect.
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made February 13, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 29 Hun, 232.)
    The nature of the action and the material facts are stated in the opinion.

      John Reynolds for appellant.
    The contract of service sued upon is an entire contract. (Wood on Mast, and Serv. 167, § 84; id. 201, § 103 ; McMillan v. Vanderlip, 12 Johns. 165 ; Reap v. Moor, 19 id. 337 ; Jenkins v. Wheeler, 3 Keyes, 652 ; Cutler v. Powell, 6 Term R. 320; 2 Smith’s Lead. Cas. 12 ; Webb v. Duckiligford, 13 Johns. 390 ; Wolfe v. Howes, 20 N. Y. 200 ; Clark v. Gilbert, 26 id. 284 ; Monell v. Burns, 4 Denio, 121; Stark v. Parker, 2 Pick. 267; Earp v. Tyler, 73 Mo. 617; Hutchinson v. Wetmore, 2 Cal. 310; Olmstead v. Beale, 36 Mass. 528.) The element of time in a contract of service is only one out of many elements, all of which are important parts of the contract, and all of which must be observed in order to constitute a full performance of the contract, entitling the servant to his wages. (Wood on Mast, and Serv. 156, § 81; id. 166, § 83; Page v. Wells, 37 Mich. 421.) A servant may be debarred from recovery for misconduct although he has not failed to work for his full period of time. (lantry
      v. Parks, 8 Cow. 63; Spain v. Arnott, 2 Stark. 256; Turner v. Mason, 14 M. & W. 112 ; Ridgeway v. Hungerford M. Co., 3 Ad. & Ell. 177; Henderson v. Stiles, 14 Ga. 137; Spotswood v. Barrow, L. R., 5 Exch. 110; Blenkarn v. Hodges D. Co., 16 L. T. Rep. [N. S.] 608; Harrington v. Bank, 1 T. & C. 367; Perry v. Dickerson, 85 N. Y. 350; Turner v. Robinson, 6 C. & P. 15; Singer v. McCormick, 4 W. & S. 265 ; Wood on Mast, and Serv. [Ed. 1877] 213, § 112; Libhart v. 1 W. & S. [Penn.] 265 ; Williams v. Keech, 4 Hill, 168.) The judge properly charged the jury, in accordance with defendant’s request, that it was an implied part of plaintiff’s contract of service that he should fully pay over promptly, upon receiving them, all proceeds collected by him upon sales of defendant’s farm produce. (Wolfe v. Howes, 20 N. Y. 200 ; Clark v. Gilbert, 26 id. 284 ; Galvin v. Prentice, 45 id. 165 ; Dunham v. Bower, 77 id. 81; Turner v. Robinson, 6 Car. & P. 15 ; Hutchinson v. Wetmore, 2 Cal. 310.) A servant who has worked under an express contract, which he has neglected to keep, is never permitted to recover upon a quantum meruit. (Faxton v. Mansfield, 2 Mass. 148; Williams v. Keech, 4 Hill, 168; Lantry v. Parks, 8 Cow. 63; Jennings v. Camp, 13 Jones, 94; Wood on Mast, and Serv. 157, § 81.) In this case full and faithful performance by plaintiff of his entire contract was a “ condition precedent ” to any recovery. (Wood on Mast, and Serv. 167, § 84; 156, § 81; 201, § 103 ; Bixby v. Parsons, 49 Conn. 483; Henderson v. Hydraulic Works, 9 Phila. 100; McMillan v. Vanderlip, 12 Johns. 167; Wolfe v. Howes, 20 N. Y. 202; Smith v. Brady, 17 id. 186 ; Oakley v. Morton, 11 id. 30.) Faithfulness and integrity are implied parts of every servant’s contract, and a breach of such implied part of the entire contract is as disastrous to the plaintiff as the breach of an expressed condition; fidelity is a condition precedent, and “ the burden is always on the plaintiff to prove a fulfillment of a condition precedent.’’ (Henderson v. Hydraulic Co., 9 Phila. 100; 47 N. Y. 291.)

      William J. Gaynor for respondent.
    The burden was on defendant to prove the counter-claim he pleaded. (Murray v. Ins. Co., 85 N. Y. 236.) The presumption of law was that plaintiff did his duty. (1 Cooley’s Blackstone, 428, note.)
   Miller, J.

This action was brought by the plaintiff, who was a farm servant, to recover, under a contract for one year with the defendant, for farm work, and carrying produce to market at the stipulated price agreed upon of $20 per month, and in addition $1 per load for carrying and marketing such produce. There was no dispute as to the contract, hut there was a controversy as to the number of loads; this, however, was arranged in submitting the case to the jury, it being admitted that the number of loads should be as stated by the defendant. It was also agreed that $10 had been, advanced upon wages during the year, and it was conceded that there remained unpaid to the plaintiff $230 for the monthly wages, and $201 ‘for two hundred and one loads, amounting in all to $431.

The principal question litigated upon the trial was whether the plaintiff had retained and converted any of the moneys received by him from the sale of the farm produce to his own use, and thus defrauded the defendant. Evidence was introduced tending to show that the plaintiff had appropriated and embezzled some of the moneys received by him, belonging to his master, to his own use, and it was claimed that the contract was an entire one, and full performance of the same was a condition precedent to the recovery of any part of the servant’s wages.

The counsel for the defendant made various requests to the court to charge the jury, in substance, to the effect that if the plaintiff, during his term of service, kept back or retained, without defendant’s consent, any part of the proceeds of the sales, he could not recover any amount whatever. The court did charge that it was an implied part of plaintiff’s contract of service that he should fully pay over all proceeds collected by him upon sales of defendant’s farm produce, but refused to charge as requested, and did charge that, even if plaintiff had retained and failed to pay over part of such proceeds, he was, nevertheless, entitled to recover his stipulated wages under the contract, less such sums as he had retained, or, in other words, less such damage as defendant had sustained by plaintiff’s failure to perform fully. The ruling of the court presents the distinct question whether a failure by the servant to account for the proceeds of sale made by him, and to pay over the same, was such a breach of the contract as prevented a recovery by the plaintiff of any amount to which he was entitled by the terms of the contract.

We are referred by the appellant’s counsel to numerous reported cases to sustain the position that a single breach of the contract of service is of itself sufficient to prevent a recovery. ISTone of them, however, go to the extent of holding that a mere failure. to account for moneys, received while engaged in service, of itself prevents a recovery, where the servant has fully completed his term of service. It is undoubtedly the law that where a party fails to perform the full term required, unless prevented by the act of God, or by some sufficient legal excuse, no recovery can be had upon the contract, but that rule cannot be invoked, under ordinary circumstances, where there has been only a simple failure in reference to some particular portion of the contract. There must be something more than a mere breach of a slight character during the continuance of the time of service, where the contract has been substantially performed, as to time and its most material parts, to prevent a recovery by a party of any sum provided for by the contract. Ordinarily the damages sustained by a failure to perform some of the conditions of the contract may properly be allowed against the full amount claimed, but, unless the failure is substantial, material, and strikes at the very essence of the contract, or it appears that the parties intended that any such violation should render the contract of no effect, it cannot defeat a recovery.

The rule is well settled in 'this State that if the master, for good and sufficient cause, discharge the servant before the expiration of the term of service; or if the servant, without good cause, quit service before the end of the term, he can recover nothing for the part of the term past, nor for the future. But where the servant has served his full term this rule has no application and has never been upheld by the decisions of the courts. Cases may, no doubt, arise where the dishonesty of the servant is of such a character as would justify the conclusion that his contract had been violated in a most material and substantial part and to an extent which would bar any recovery whatever, but the act in such cases, to bar a recovery, must be misconduct and unfaithfulness which substantially violates the contract of service. (Brown v. Craft, 6 C. & P. 16, 17, note a; Libhart v. Wood, 1 Watts & Serg. 265.) Flagrant acts of dishonesty or crime which seriously affect the master’s interest, continued during the service, might well be regarded as a bar to the recovery of wages, although the amount received and fraudulently appropriated might be far less than the amount fixed by the contract. But no such case was presented here by the requests to charge. .¡None of the requests embrace the case of embezzlement or criminal appropriation of the moneys of defendant. They include a mere failure to pay over moneys received belonging to the defendant, which failure may not have been criminal and may have been caused by a mistake, misapprehension or neglect. They were not sufficiently broad to include criminal conduct on the part of the plaintiff, and this point is not distinctly presented.

The facts lead to the conclusion that the judge upon the trial committed no error in his charge or refusal to charge in reference to the questions which have been considered. Independent, however, of the reasons already given in support of the decisions of the trial court, it appears from the record before us that the jury rendered a verdict for the plaintiff for the full amount conceded to be due to him. This was a direct finding that the plaintiff had not embezzled any of the moneys belonging to the defendant which were received by him, and hence it follows that the questions of law presented are really not in the case. If the plaintiff did not embezzle or dishonestly appropriate any of the moneys of the defendant, as the jury found, the requests to charge, which were refused, as well as the charge made to which exceptions were taken, were of no sort of importance and had no bearing upon the issue presented.

Some stress is laid by the appellant’s counsel upon the fact that the jury allowed no interest upon the amount of the plaintiff’s claim, and it is argued that they may have regarded some of the evidence introduced as proof that the plaintiff had retained moneys of the defendant, and allowed the same as an offset against such interest. There is no foundation for such a claim. There is nothing in the case which shows that any point was made in regard to interest or any instructions given as to the same, and it would be going very far thus to speculate upon the supposed intention of the» jury.

There was no error in the charge of the judge that plaintiff was entitled to recover unless defendant satisfied the jury that there had been a withholding by plaintiff. After the plaintiff had proved his claim under the contract the burden of proof was clearly upon the defendant to prove the counter-claim set up in his answer.' The presumption is that the servant has performed his duty, and that a servant in the habit of daily or weekly accounting for moneys received for his master, has paid over the money received. (1 Cooley’s Blackst. 428.)

We have examined the other questions raised on the trial and discover no ruling which furnishes any ground' for a reversal of the judgment.

The judgment should be affirmed.

All concur.

Judgment affirmed.


text:
    Myron Pardee, Appellant, v. Samuel C. Kanady et al., Respondents.
    Defendants contracted to deliver to M., plaintiffs assignor, 400,000 feet of lumber during the season of navigation of 1875. Subsequently by another contract" they agreed to deliver 400,000 feet during the year 1876, on a credit of thirty and sixty days, and it was provided that in case of a breach of the previous contract, if the second contract was performed, such breach should be excused to the extent of 150,000 feet. There was a breach of the first contract to the extent of 153,495 feet. About the opening of the season of 1876, M. assigned his property to plaintiff and tfien became insolvent; the former continued the business. Defendants thereupon sold their lumber on hand and ceased to buy any more, and when applied to by M. and plaintiff to perform the second contract, although M. offered a guaranty of payment, announced their intention not to do so, giving, as a reason, the insolvency of M. and denying his right to assign the contract. In an action to recover damages for the breach of the contract for 1875, the referee found that plaintiff was at all times able, ready and willing to receive and pay for the lumber under thé second contract. Held, that defendants were liable for the whole amount of damages; that while the insolvency of M. excused defendants from delivering lumber under the second contract on credit, and entitled them to demand payment on or before delivery, it did not abrogate the contract; and without some action on their part putting plaintiff or M. in default for not accepting and paying for the lumber to be delivered under it, they could not take the benefit of it as a defense to their liability under the previous contract.
    (Argued June 23, 1885 ;
    decided October 6, 1885.)
    The mere insolvency of one of the parties to an- executory contract of sale is not equivalent either to a rescission or a breach, it simply relieves the vendor from an agreement to give credit, and payment may be substituted.
    Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made the second Tuesday of June, 1882, which reversed a judgment in favor of plaintiff, entered upon a verdict.
    This action was brought to recover damages for an alleged breach of a contract.
    The contract in question was made in February, 1875. By it defendants agreed to deliver to Pardee four hundred thousand feet of basswood lumber between April 1 and September 30,1875, at a stipulated price. On August 28, 1875, said parties entered into another contract by which defendants agreed to furnish and deliver to said Pardee four hundred thousand feet of basswood lumber during the season of 1876, at a stipulated price, upon a credit of thirty days with privilege of sixty. This contract contained a clause to the effect that in- consideration of the performance thereof by defendants said Pardee would not hold them liable if they were short one hundred and fifty thousand feet on the contract of 1875. The further material facts appear in the opinion.

      George W. Parkhurst for appellant.
    M. F. Pardee had a right of action for a breach of the first contract, but it was suspended until the refusal or failure of the defendants to supply four hundred thousand feet of lumber in 1876. (7 Wait’s Act. and Def. 571; 2 Pars, on Cont. 683-685.) His cause of action for such breach was clearly assignable. (Sears v. Conover, 3 Keyes, 113; S. C., 4 Abb. Ct. App. Dec. 182; Monahan v. Story, 2 E. D. Smith, 393.) The contract of August 28th was also assignable. (Devlin v. Mayor, etc., 63 N. Y. 15; Tyler v. Barrows, 6 Rob. 104; Platt v. Stout, 10 Abb. Pr. 178 ; Butler v. N. Y. & E. R. R. Co., 22 Barb. 112; People v. Tioga C. P., 19 Wend. 77.) By the refusal of the defendants to perform the contract of August 28, the plaintiff was restored to the original rights of his assignor, as if the rescinded contract had not been made. (Hunt v. Silk, 5 East, 249 ; Benj. on Sales [3d Am. ed], § 145; id., note o; 2 Pars, on Cont. [6th ed.] 678; Willard’s Eq. Juris. [Potter’s ed.] 303; Tompkins v. Hyatt, 28 N. Y. 347; Bradley v. Bostay, 1 Barb. Ch. .125; Wheaton v. Baker, 14 id. 594; Lindsay v. Ferguson, 49 N. Y. 623.) Mere insolvency of a party does not rescind a contract. That can be done only by the acts or assent of both parties. (1 Add. on. Cont. [Am. ed.], § 741; Hew E. Ins. Co. v. G. El. R. R. Co., 91 N. Y. 155 ; Freeth v. Burr, L. R., 9 C. P. 208 ; Bloomer v. Burnstein, id. 588; Lawrence v. Fox, 20 N. Y. 268 ; Benj. on Sales [3d Am. ed.], §§ 772-3; 1. E &E. 680; 28 L. J. Q B. 204; Babcock v. Bonnell, 80 N. Y. 244.) Under the circumstances no tender of the price or offer to perform was necessary on the part of the plaintiff or his assignor. (Shaw v. R. C. Ins. Co., 69 N. Y. 286 ; Bunge v. Koop, 48 id. 228; Crist v. Armour, 34 Barb. 378; Sears v. Conover, 4 Abb. Ct. App. Dec. 182.) Where goods are purchased for a particular market, and that is known to both parties, the damages are governed by the price at that market. (Hagous v. Ablon, 5 Hill, 472; Converse v. Prettyman, 2 Minn. 229 ; Marshall v. Central R. R. Co., 48 N. Y. 660 ; 2 Add. on Cont. [Am. ed.], § 589.)

      N. W. Nutting for respondents.
    A radical modification of the first contract was effected by the second. (Coddington v. Davis, 1 Comst. 186.) The contractee’s insolvency made the acceptances -valueless, and the respondents were not bound to ship the lumber or fulfill the contract as the consideration had failed. (Benedict v. Field, 16 N. Y. 595; 4 Duer, 163.) An offer to pay in the acceptances of M. F. Pardee on or after April 22, 1876, when he had become insolvent, would not have satisfied the contract, nor would such an offer been good under the contract for 1876. (Ross v. Merritt, 2 Caines, 117; Kip v. Monroe, 29 Barb. 584.) A tender of money by the purchaser or his assignee might have made the respondents liable if they had refused to deliver. (Currie v. White, 37 How. 331.) The purchaser could not have maintained this action under the facts, and the assignee does not stand in any better position. (2 H. L. C. 309 ; 6 Taunt. 480.)
   Rapallo, J.

We think that the conclusions of the learned referee as to the construction and effect of the agreement of August 28, 1875, were correct.

This agreement was not a- modification of the previous agreement of February, 1875, nor a substitute therefor; nor did it operate to extend the time for the delivery of any part of the lumber agreed to be delivered during the season of 1875; but it was an independent contract to deliver four hundred thousand feet of lumber during the season of 1876, regardless of the cpiestion whether or not the four hundred thousand feet agreed to be delivered in 1875 were or were not delivered in full. It evidently contemplated the possibility of a breach by the defendants of the contract of February, 1875, and provided that such breach should be excused to the extent of one hundred and fifty thousand feet, if the defendants should deliver the four hundred thousand feet in 1876. Still it left the first contract in full force. If the defendants had delivered or tendered the whole four hundred thousand feet under the first contract, as they might have done, there being more than thirty days of their time unexpired when the second contract was made, Pardee would, have been bound to accept and pay for them and to take the four hundred thousand feet in 1876 in addition, and if he had not become insolvent he could have required the defendants to deliver them. Such an arrangement cannot be construed as an extension of time under the first contract, as to any part of the lumber deliverable under it. Each contract stood by itself with the stipulation, for the benefit of the defendants, that to the extent of one hundred and fifty thousand feet they should not be held for damages for a breach of the first, if they fully performed the second.

The first contract was in fact broken. At the close of the season of 1875, the defendants were short in their deliveries one hundred and fifty-three thousand four hundred and ninety-five feet. If they fully performed the second contract they would be relieved from liability for damages upon one hundred and fifty thousand feet of this shortage. Consequently, as things stood at the close of the season of 1875, the right of action of M. F. Pardee was complete only as to three thousand four hundred and ninety-five feet, and was suspended as to one hundred and fifty thousand feet until it should be seen whether the defendants performed their second contract during the season of 1876.

About the opening of the season of navigation of 1876, M. F. Pardee, on April 22, assigned his property, including his claims under the above contracts, to his father, Myron Pardee, the present plaintiff, and then became insolvent. The plaintiff continued the business through the agency of M. F. Pardee.

The defendants treated this insolvency as an abrogation of the contract of August 28,1875, and without giving any notice of their intention not to perform it, sold their lumber on hand to other parties and ceased to buy more, and" when applied to by M. F. Pardee and by the plaintiff to furnish the lumber, refused to do so and announced their intention not to furnish any, assigning as reasons the failure of M. F. Pardee — that on learning it they had ceased buying and had but little— and denying the right of M. F. Pardee to assign the contract.

There was no consent on the part either of M.-«F. Pardee or of the plaintiff to a rescission of the contract; on the contrary, they insisted on its performance, M. F. Pardee offering guarantee of the payment of the price.

This action is not brought upon the contract for 1876, but for damages on the one hundred and fifty-three thousand four hundred and ninety-five feet shortage on the deliveries of 1875. As the sale for 1876 was on thirty and sixty days’ credit, the insolvency of M. F. Pardee excused the defendants from delivering that lumber on credit, and entitled them to insist upon payment on or before delivery, but it did not abrogate the contract. On tender of the purchase-price, the defendants would have been bound, notwithstanding the insolvency, to deliver the lumber to the vendee or his assignee. It is not necessary now to consider what effect the conduct of the defendants in disabling themselves from performing the contract, without giving any opportunity to the purchaser to tender the price, and their absolute repudiation of any liability to .perform the contract, would have had in an action on the contract for 1876. But it is quite clear that without some action on their part to put the plaintiff or his assignee in default for not accepting and paying for the lumber to be delivered under that contract, the defendants cannot take the benefit of it as a defense to their liability under the previous contract for 1875. ISTo such default was shown. On the contrary the referee found, as matter of fact, that during the season of 1876, the plaintiff was at all times able, ready and willing to receive and pay for the lumber according to the terms of the contract of August 28, 1875. The defendants now seek to avail themselves of the insolvency of M. F. Pardee, not only to exempt themselves from liability for not delivering that lumber, but also to receive the same advantage as though they had in fact delivered it. This, we think, is claiming too much. The mere insolvency of one of the parties to a contract of sale is not equivalent either to a rescission or a breach. It simply relieves the vendor from his agreement to give credit; and payment may be substituted. (New England Iron Co. v. Gilbert El. R. R. Co., 91 N. Y. 153 ; Add. on Cont. [Am. ed.], § 471; Benj. on Sales [3d Am. ed.], §759; Freeth v. Burr, L. R., 9 C. P. 208; Bloomer v. Bernstein, id. 588.)

But if the contract for 1876 was rescinded by defendants they could not claim or retain any benefit under it, and their liability under the contract of 1875 continued.

The order of the General Term should be reversed and the judgment entered on the report of the referee affirmed, with * costs.

All concur.

Order reversed and judgment affirmed.


author: Andrews, J.

text:
    John M. Canda et al., Respondents, v. Jacob Wick, Jr., Appellant.
    Plaintiffs agreed to deliver to defendant 400,000 brick, which the latter agreed to accept and pay for at a stipulated price. The brick were to be delivered from time to time at plaintiffs’ convenience, but without delaying defendant in the prosecution of the work for which they were intended. A prompt delivery and acceptance was contemplated, and this was one of the conditions inducing plaintiffs to enter into the contract. After plaintiffs had delivered a portion of a cargo of brick, defendant refused to receive the residue, alleging that they were of inferior quality from that called for by the contract, and also that he had not room to receive them. Plaintiffs offered to deliver the balance, and stated that if brick advanced in price- they could not be held responsible for delivery on the contract. On several occasions thereafter they expressed a willingness to go on with the contract, but defendant was not ready, and only became ready when brick had greatly advanced in price. In an action to recover damages for breach of the contract the referee found that the reasons given for the refusal to receive were groundless. ' Held, that the tender and refusal constituted a breach of the contract; that plaintiffs were not required to tender the whole 400,000 brick in order to put defendant in default. Also, that the right of action which accrued from the refusal to receive was not waived by the subsequent offers to deliver, which were not accepted.

      (Argued June 26, 1885 :
    decided October 6, 1885.) .
    The brick in question were delivered by plaintiffs to other parties on contracts made prior to that with defendant. Plaintiffs were able to furnish the brick required for all the contracts. Held, that the price received under such other contracts was immaterial, and evidence thereof properly rejected.
    Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made April 9, 1883, which affirmed a judgment in favor of plaintiffs, entered upon the report of a referee. (Mem. of decision below, 17 J. & S. 497.)
    This action was brought, among other things, to recover damages for an alleged breach of contract to receive and pay for four hundred thousand brick, at a stipulated price.
    The referee found, in substance, that on or about September 13, 1881, the parties entered into a contract by which plaintiffs agreed to sell and deliver to defendant, who agreed to accept and pay for the brick in question, at the price of $7.25 per thousand, to be used in the erection of a building then in process of construction - by defendant; they were to be delivered on the street in front of the premises. In pursuance of the contract, on September 21st, plaintiffs delivered two thousand of the brick, part of a cargo, when defendant refused and prevented plaintiffs from making any further delivery, although •they were able and willing and offered to perform the contract on their part. The market value of such brick was at that time $6.75 per thousand. There was no tender of. any brick under the contract after September 21st. On October 14th, defendant demanded of plaintiffs the balance of the brick, but plaintiffs refused to- deliver; the market value at that time was $8.25 per thousand.
    It' appeared that the brick which defendant refused were delivered by plaintiffs upon other contracts made prior to that with defendant. Defendant offered to show on the trial the price received by plaintiffs under said contracts. This was rejected, and the referee allowed as damages the difference between the contract price and the market price at the time of the refusal to accept delivery. The further material facts are stated in the opinion.

      John L. Lindsay for appellant.
    A party seeking to rescind a contract must reject it wholly, without imposing conditions. (Welsh v. Gossler, 47 N. Y. Supr. [J. & S.] 104; El., Bl. & El. 148 ; 45 Barb. 379; 20 Wend. 47; Howard v. Hayes, 47 N. Y. Supr. [J. & S.] 29 ; Gray v. Green, 9 Hun, 344.) Where a contract has been temporized with, and execution thereof delayed by express or tacit consent, by delaying the execution of the common purpose, neither party can claim to put the other in default, without first giving express notice of intent to do so if the contract he not performed within a reasonable time, which ought to be indicated. (Wilkinson v. Beecher, Daily Reg., Nov. 17,1882 ; Lawson v. Hogan, 13 Weekly Dig. 8; Schroeppel v. Hoppen, 40 Barb. 425 ; Williston v. Corkinson, 41 id. 635; Shafer v. Niver, 9 Mich. 253; Stow v. Russell, 36 Ill. 19; Hickard v. Sayre, 34 id. 142 ; Wolf v. Willits, 35 id. 89; Sloo v. Law, 1 Blatchf. 512; Willard on Vend. [2d ed.] 199.) The acts of the parties, both plaintiffs and defendant, show that the execution of the contract was delayed by express or tacit consent, and it is the acts of the parties by which they are to be judged, and not their words. (Horncastle v. Farran, 3 Barn. & Aid. 497; Chapman v. Morton, 11 M. & W. 534.) The referee erred in excluding testimony tending to show the amount received by plaintiffs, for the brick which they intended for the defendant, for if they received as much or more than they were to receive from defendant they were not damaged. (Potter v. Colgate, 30 N. Y. 549; Lewis v. Grader, 51 id. 231; Cohen v. Platt, 69 id., 348 ; Orr v. Bigelow, 14 id. 561; Dey v. Dase, 9 Wend. 129 ; Schultz v. Bradley, 4 Daly, 29.)

      J. Woolsey Shepard for respondents.
    The issues being purely disputed questions of fact, and the referee’s findings being supported by some evidence, the Court of Appeals will not disturb the decision, of the referee. (Potter v. Carpenter, 71 N. Y. 74; Stilwell v. M. Ins. Co., 72 id. 385; Baum v. Stowe, 12 Weekly Dig. 353; Story on Sales [2d ed., 1853], 278, 285; Terwilliger v. Knapp, 2 E. D. Smith, 86 ; Jones v. Fowler, 1 Sweeney’s Sup. Ct. 5; Crittenden v. Atwood, 15 Weekly Dig. 392.) Defendant is estopped from claiming that the brick delivered, and those with which plaintiffs intended to complete the delivery were of inferior quality to those purchased, for the reason that defendant is bound by his admission in his answer that he “ received two thousand of the brick in pursuance of said contract.” (Paige v. Willet, 38 N. Y. 28 ; Winchell v. Winchell, 17 Weekly Dig. 318.) As a further reason that the defendant in fact used the brick delivered in the construction of the building. (Leavenworth v. Packer, 52 Barb. 132 ; Sedgw. on Dam. 280.) Proof of a tender of a portion of the goods, and a refusal or rejection of the same, or a refusal to receive the bulk of the goods is equivalent to a complete delivery of the whole. (Cousinery v. Pearsall, 8 J. & S. 113.) The vendors (plaintiffs) are entitled to recover the difference between the contract price and market price, whether they had property in their possession sufficient to fulfill the contract on their part or not. (Dustan v. McAndrew, 44 N. Y. 72; Hayden v. Demets, 53 id. 431; Clark v. Mayor, etc., 4 id. 343; Crittenden v. Atwood, 15 Weekly Dig. 392; Masterson v. Mayor, etc., 7 Hill, 61; Tilt v. La Salle Mfg. Co., 5 Daly, 16.) It was not material what became of a certain quantity of brick which it is not claimed or proved was bought by defendant. (Cort v. A. Ry. Co., 17 Q. B. 127.)
   Andrews, J.

The referee found, upon sufficient evidence to justify the finding, that the reasons assigned by the defendant on the 21st of September, 1881, for refusing to receive the balance of the brick of the cargo of the schooner Ellen, were groundless. He further found that the brick were of the quality specified in the contract, and that there was a sufficient available space for .piling them. Upon the defendant’s refusal to permit the plaintiffs’ cartmen to continue the delivery, the plaintiffs offered to deliver the balance of the cargo, and stated to the defendant that if brick advanced in price, they could not be held responsible for the delivery on the contract. The defendant persisted in his refusal to receive any more brick from the cargo of the Ellen, assigning the reasons before stated, viz.: defective quality and want of space. The plaintiffs had a right to make delivery on the contract, on the 21st of September. The written memorandum is silent as to the time of delivery, but the evidence shows that prompt delivery and acceptance was contemplated, and that this was one of the considerations upon which the plaintiffs entered into the contract. The tender and refusal constituted, we think, a breach of the contract by the defendant. It was not necessary that the plaintiffs should tender the whole four hundred thousand brick in order to put the defendant in default. It was not contemplated that the entire number should be delivered in one' mass, but as is evident from the situation of the parties and the surroundings, they were to be delivered from time to time, at the convenience of the plaintiffs, but without delaying the defendant in prosecuting the work in which they were to be used. When the defendant refused without adequate reason to accept the cargo of the Ellen, the plaintiffs were at liberty to treat the contract as broken, and were not bound to make an actual tender of the remainder of the brick before bringing the action. This would have been a useless ceremony. The warning given by the plaintiffs to the defendant, that his refusal would absolve them from any obligation on the contract, was not, as is claimed, equivalent to an assertion of a right on their part to regard the contract as still subsisting and executory, or as a reservation of a right to deliver the brick if they should so elect. The letter of October 4, 1881, shows that on several occasions after the 21st-of September, the plaintiffs were willing to go on with the contract, but the defendant was not ready and only became ready when brick had greatly advanced in price. The right of action having accrued from the transaction of September 21st, it was not waived as matter of law by a subsequent offer on the part of the plaintiffs to furnish the brick, which was not accepted by the defendant until the advance in the market had materially changed the situation. The price which the plaintiffs received for the brick on sale to other parties was immaterial in view of the facts that they were delivered on contracts made prior to September 21st, and that the plaintiffs had the ability to furnish all the brick required for all their contracts, including that with the defendant.

The judgment should be affirmed.

All concur.

Judgment affirmed.