text:
    The Yonkers and New York Fire Insurance Company, plaintiffs, vs. The Hoffman Fire Insurance Company, defendants.
    1. An inaccurate description will not necessarily defeat an instrument; and it may be corrected by construction, if there is enough besides to identify the place, and thus supply the means of making the correction; or where the instrument, as a whole, shows, .certainly, that it was an error, and also shows, with equal certainty, how the error may and should be corrected.
    2. These general rules apply to the contract of. insurance; and if an error occurs in the policy, in describing, the location of the property insured, extrinsic evidence may be let in, to identify the place.
    8. In an action upon a policy of re-insurance, it was objected, on the trial, that there was a variance between the complaint and the policy; the complaint alleging that the property was situated between Meade and Ash streets, whereas the policy described it as situated between Meade and Arch streets. KM that the objection of variance was properly overruled; Arch street, as erroneously written in the policy, being neither a necessary, nor a material part of the description; and it could be rejected, and the description would yet be sufficient to designate the locality of the subject insured.
    4. The contract of re-insurance is totally distinct from, and unconnected with, the primitive insurance, and the re-insured, in order to recover against the re-insurer, must prove the extent of the loss, in the same manner as the original insurer must have proved it against him.
    6. Although the insurable interest of the re-insured is sufficiently shown by proof that they themselves were re-insurers of the original insurers, yet as. the contract is not a wager, but an indemnity, before there can be a recovery, a loss of the subject insured must be shown.
    6. No distinction exists between policies of re-insurance and other or first policies, in respect to the nature or extent of the proof required. Before re-insurers can recover, they must show that they have paid a valid claim; which can only be done by showing that the primitive insurers had a risk upon the subject insured, and that such subject was destroyed.
    7. Preliminary proofs are not evidence in chief, except to show a compliance with a condition in the policy. They are not evidence of the loss.
    (Before Monell, Garvin and Jones, JJ.)
    Heard and decided May —, 1868.
    Exceptions ordered to be heard in the first instance at the general term.
    The action was upon a policy of re-insurance. The plaintiffs re-insured the Insurance Company of North America, in the sum of $5000, on refined petroleum, “ contained in McHenry’s yard, situate on the south side of Dickerson street, east of Front street, between Mead and Ash streets, Philadelphia.” Subsequently, the defendants re-insured the plaintiffs, in the sum of $2500, by the following description: “ On refined petroleum contained in McHenry’s yard, situate on the south side of Dickerson street, east of Front street, between Mead and Arch streets, Philadelphia.”
    A loss was alleged to have occurred, and the plaintiffs, as re-insurers of the Insurance Company of North America, paid such company the sum of $4815.30 in full discharge thereof. ■ They gave notice of the loss to the defendants and demanded payment of the amount insured.
    Hpon the trial it was objected that there was a variance between the complaint and the policy of the defendants. The complaint alleging that the property was situated between Mead and Ash streets, whereas the defendants’ policy described it as situated between Mead and Arch streets. It was proved that “ McHenry’s yard” was in the extreme southeast of Philadelphia; Dickerson street was the last street laid out. running east and west, and McHenry’s yard was south of that street. Front street is west of it, the only leading street west of it; the other streets are not laid out, and are merely known on paper. The place was known as “McHenry’s yard.” A witness who testified he had always resided in Philadelphia, said he knew of no other place in Philadelphia known as McHenry’s yard, and it was well known by that description. The street on the east of Me Henry’s yard was known as Ash street; there is nothing between it and the river. Arch street is about two miles north of McHenry’s yard and runs parallel with Dickerson street. Ash street runs north and south, and Arch street east and west. It was further proved that the description put in the defendants’ policy was furnished by the plaintiffs.
    There was no other proof of loss than what was claimed to be contained in the admission in the defendants’ answer, and the actual payment to the Insurance Company of North America. The allegation in the complaint is: “ That the plaintiffs have given due notice to the defendants of the said loss by fire, and have furnished them with the proof of the loss thereby sustained, and of the payment of the said insurance by the plaintiffs as herein above stated.” The answer of the defendants denied that the plaintiffs gave 66 due notice of said alleged loss.” The allegation in a former part of the complaint that the property “ so insured was injured and destroyed by fire,” was also denied by the defendants. An agent , of the plaintiffs testified that he knew of a fire occurring in McHenry’s yard. A claim was made upon the plaintiffs by the Insurance Company of North America, for the loss, under the policy issued by the plaintiffs, which the agent paid by a draft on the plaintiffs, in favor of the Insurance Company of North America.
    A motion was made to dismiss the complaint on several grounds; among others, of variance, and especially, that there was no evidence of an insurable interest in the Insurance Company of North America, or that there was a loss. The motion was denied, and the defendants excepted.
    • A verdict was directed for the plaintiffs, to which the defendants also excepted.

      John M. Mason, for the plaintiffs.

      W. H. Peckham, for the defendants.
   By the Court, Monell, J.

The objection, that the location of the subject of the insurance being differently described in the. two policies, rendered the defendants’ policy void or voidable, was, I think, properly overruled.

An inaccurate description will not necessarily defeat an instrument; and it maybe corrected by construction, if there is enough besides to identify the place, and thus supply the means of making the correction; or, where the instrument as a whole, shows certainly, that it was an error, and also shows with equal certainty how the error may and should be corrected. (2 Pars. on Cont. 27.) These general rules apply to the contract of insurance, (Robertson v. French, 4 Fast, 130;) where Lord Ellenborough says: (p. 135,) “ the same rules of construction which apply to all other instruments apply equally to this instrument of a policy of insurance.”

There are also other rules of construction of contracts which might be summoned to the aid of this case; such as the intention of the parties, and the surrounding circumstances, (French v. Carhart, 1 Comst. 96,) as well as the immateriality of the representation or description. (Stebbins v. Globe Ins. Co., 2 Hall, 632.)

Applying the rules I have stated to the policy in this case, the error in description may be corrected by construction. The extrinsic evidence, properly let in, (Stebbins v. Globe Ins. Co., supra,) to identify the place of the subject insured, shows how the error may be corrected, or rather disregarded, without prejudice or injustice to the defendants.

The description in the policy commences with “ contained in McHenry’s yard.” The evidence shows that such yard, by that designation is well known and is the only yard thus designated in the city of Philadelphia. Then follows: “situate on the south side of Dickerson street,” describing accurately the street and side of the street, upon which “McHenry’s yard” was situated. Then “east of Front street ” is another correct aid to the exact location of the yard.

Had the description stopped here, no question of course could have arisen, for it is entirely accurate. But it goes farther, and states “ between Mead and Arch streets;” and the evidence shows that Arch street is two miles north of McHenry’s yard, and runs parallel with Dickerson street.

Arch street which was intended for Ash street, as it is written in the plaintiffs’policy, is neither a necessary, nor a material part of the desdription. It could be rejected and the description would yet be sufficient to designate the locality of the subject insured. It was unnecessary, for the description was perfect without it; it was immaterial, because, as admitted by the appellants’ counsel, the insurer knew nothing of the location of the property except from the terms used, and relied solely upon the representations of the insured.

Without pursuing the subject farther, I have no doubt, that the objection of variance was properly overruled.

But, I think, the case must fail for want of sufficient proof, of a loss of the subject insured. The plaintiffs offered no direct proof of any loss. The plaintiffs’ policy re-insured the Insurance Company of North America “ against loss or damage by fire to the amount. of five thousand dollars, on refined petroleum.” It was not shown that the latter company had any risk upon the subject described, or that such subject had been destroyed. It was admitted by the plaintiffs’ counsel, that in actions upon ordinary policies of insurance, the insured must show a loss of the subject insured; and it was also admitted that the preliminary proofs were not evidence of such loss. Such undoubtedly is the rule. (Howard v. City Ins. Co,, 4 Denio, 502. Sexton v. Montgomery County Mut. Ins. Co., 9 Barb. 191. Newmark, v. L. and S. Fire Ins. Co., 30 Mo. Rep. 160.) But it is insisted, that the plaintiffs being themselves insurers, it was only necessary to show the payment of a loss, and that the burden of showing that the loss was wrongfully paid, was upon the re-insurer. Such I do not understand to be the law.,

The contract of re-insurance is totally distinct from, and unconnected with, the primitive insurance, and the re-insured, in order to recover against the re-insurer, must prove the extent of the loss in the same manner as the original insured must have proved it against him. ■ (1 Arn. on Ins. 288. Hastie v. DePeyster, 3 Caines, 190.) And it is of no importance that the plaintiffs were themselves re-insurers. Both policies were against “ loss on refined petroleum,” and the plaintiffs must show a valid claim for loss against themselves on the article insured. Chief Justice Kent says, in Hastie v. De Peyster, supra, (p. 195,) “ if the re-insured proves the original claim against him to have been valid when he resorts over to the re-insurer, he then makes out a case for indemnity.” (N. Y. State Marine Ins. Co. v. Protection Ins. Co., 1 Story, 458.)

No doubt the insurable interest of the plaintiffs was sufficiently shown, by proof that they themselves were re-insurers of the Insurance Company of North America. The contract is not a wager, but an indemnity. (Bowery Ins. Co. v. N. Y. Ins. Co., 17 Wend. 359. Mut. Safety Ins. Co. v. Hone, 2 N. Y. Rep. 235.) But before thei;e can be a recovery, a loss of the subject insured must be shown.

I have not found any case which sustains the distinction, attempted to be drawn by the plaintiffs’ counsel, between policies of re-insurance and other or first policies, in respect to the nature or extent of the proof required. I think I have shown, and fortified the position by authority, that no such'distinction exists. Therefore, the whole argument, founded upon the supposed admission of the defendants in not objecting to the sufficiency of the preliminary proofs, falls, for I have already shown that such preliminary proofs are not evidence in chief, except to show a compliance with a condition in the policy.

■ Before the plaintiffs can recover, therefore, they must show that they paid a valid claim, which I suppose can be done only by showing that the Insurance Company of North America had a risk upon the subject insured, and that such subject was destroyed. As both these facts may be shown, there should be a new trial.

Exceptions sustained and a new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: By the Court, Monell, J.

license: Public Domain

text:
    John Sowarby, plaintiff and respondent, vs. Mary Russell, impleaded, &c. defendant and appellant.
    1. It is a general principle that written instruments for the payment of money require no proof of default, and the burden of showing there has been no default, rests upon the party charged with the default. Hence, in actions, for the recovery of money alleged to be due upon a written instrument, the production and giving the instrument iú evidence is all the proof required; and the affirmative of showing there is nothing due lies upon the defendant.
    2. The production of a bond and mortgage being sufficient proof, in a common case, that the interest is unpaid, if it be not indorsed, and enough to authorize a judgment for such interest, so, also, the same proof will be sufficient as the foundation for any further judgment appropriate to the case.
    3. In either case, if it appears from the bond that the pay day has passed, it is presumptive evidence that the interest is due and unpaid; and any thing tending to discharge the obligation must be averred and proved'by the defendant, who necessarily holds the. affirmative of the issue. M inomnlit prdbatio qui dioit non qui negat.

      4. Where a mortgage contains a covenant that if any default be made in the payment of interest, and such default continue for thirty days, the mortgagee may elect to have the whole principal become due, no other proof is. required, in an action for foreclosure, than the production and reading in evidence, the bond and mortgage. A mortgagee, to avail himself of the breach of a covenant, is not bound to prove a negative.
    (Before Monell, Garvin and Jones, JJ.)
    Heard and decided May —, 1868.
    This action was brought to foreclose a mortgage for eight hundred dollars, the principal due March 9,1869, containing the following clause: “And it is hereby'expressly agreed, that should any default be made in the payment of the said interest, or of any part thereof, on any day whereon the same is made payable, as above expressed, and should the ' same remain unpaid and in arrear for the space of thirty days, then and from thenceforth, that is to say, after the lapse of the said thirty days, the aforesaid principal sum of eight hundred dollars, with all arrearages of interest thereon, shall, at the option of the said party of the second part, his administrators or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, any thing therein before contained, to the contrary thereof, in any wise notwithstanding.”
    .The complaint alleged that the mortgagor had failed to comply with the condition, “ by omitting to pay any interest thereon, and that more than thirty days have elapsed since the interest became due. By reason whereof the whole principal sum, with the arrearages of interest, has become due and payable.”
    The answer substantially denied that the interest was due or unpaid.
    On the trial before the chief justice, without a jury, the plaintiff offered and read in evidence the bond and mortgage, and rested. The defendant moved to dismiss the complaint, and for judgment for the defendant, on the ground that there was no proof that the mortgage was due. The motion was denied, and the plaintiff had judgment. The defendant appealed,

      E. T. Gerry, for the appellant.

      W. Tracy, for the respondent. .
   By the Court, Monell, J.

The only question in this case is, whether the mere production of the bond and mortgage was sufficient evidence of default in the payment of interest, to authorize a judgment declaring the whole principal sum secured by the' mortgage to be due and immediately payable.

• It was conceded that ordinarily no other or further proof would be necessary, but it was attempted to distinguish this case; and it was insisted that where a mortgagee designed to avail himself of the breach of a covenant, and to claim the whole principal to be due, by reason of the non-payment of interest, he must show default by other proof. - In other words, that he must prove that the interest has not been paid.

It is a general principle that written instruments for the payment of money require no proof of default, and the burden of showing there has been no default rests upon the party charged with the default. In actions, therefore, for the recovery of money alleged to be due upon a written instrument, the production and giving the instrument in evidence is all the proof required, and the affirmative of showing there is nothing due lies upon the defendant.

I am unable to distinguish the case before us from the ordinary case. The proof required in any case is that default, has been made in the payment of interest. All that need be proved in any case is such default; and so far as regards the proof, the consequences of the default are quite immaterial. Therefore if the production of a bond and mortgage is sufficient proof in a common case that the interest is unpaid and will authorize a judgment for such interest, then the same proof will be sufficient as the foundation for any further judgment appropriate to the case. In either case, if it appears from the bond that the pay day has expired, it is presumptive evidence that the interest is due and unpaid; and any thing tending to discharge the obligation must be averred and proved by the defendants, who necessarily holds the affirmative of the issue. JSi ineumbit probatio qui dieit,non qui negat.

The covenant in the mortgage is, that if any default be made in the payment of interest, and such default continue for thirty days, the mortgagee may elect to have the whole principal become due. I do not see that any other proof than such as was offered in this case, could have been required. A mortgagee to avail himself of the breach of a covenant cannot be required to prove a negative.

I think the judgment should be affirmed, with costs.


author: Monell, J. By the Court, Garvin, J. Monell, J.

text:
    Jacob Bretz, plaintiff and respondent, vs. The Mayor, &c. of the City of New York, defendants and appellants.
    1. If a statute which is private and local is not set out or referred to in the pleadings, the court will not take judicial notice of it.
    2. An act of the legislature may be local and private in many of its provisions, and yet contain an enactment which is neither local nor private. If a public statute, the courts are bound to notice it.
    3. The act “ to enable the board of supervisors of the county of New York to raise money by tax for the use of the corporation of the city of New York,” &c. passed April 23,1867, the sixth section of which confers upon the Supreme Court exclusive jurisdiction in all actions against the city corporation, and thus precludes the Superior Court from entertaining a case of that character, is a public statute, and need not be pleaded.
    4. The Superior Court, deriving its jurisdiction and powers wholly from the legislature, may be deprived of such jurisdiction at the pleasure of the legislature. Hence it was competent for the legislature, by confining jurisdiction over actions against the corporation of the city of New York to the Supreme Court, to take from the Superior Court all jurisdiction over such actions.
    6. By the provision in the constitution declaring that11 all corporations shall have the right to sue, and shall be subject to be sued, in all courts, in like cases as natural persons,” {Const, art. 8, § 3,) it was only intended to subject corporations to the jurisdiction of such courts as had jurisdiction at the time the corporation was sued; and not to deprive the legislature of the power of diminishing or wholly destroying the powers of any court not created or protected by the constitution. Such power of the legislature cannot be taken from it by implication merely. Per Monell, J.
    (Before Monell, Garvin and Jones, JJ.)
    Heard and decided May —, 1868.
    Appear from an order, made at a special term, overruling the demurrer of the defendants to the complaint.
    The action was brought to recover damages for injuries sustained by the plaintiff in being thrown from a carriage in the Eighth avenue, in consequence of that street being out of repair. The defendants demurred to the complaint, upon the ground that this court has no jurisdiction of the action. Upon the argument, at special term, the court was referred to, and asked to take judicial notice of, a certain act of the legislature passed April 23,1867, entitled “An act to enable the board of supervisors of the county of Eew York to raise money by tax for the usé of the corporation of the city of New York, and in relation to the expenditure thereof; and to provide for the auditing and payment of unsettled claims against said city, and in relation to actions at law against said corporation.”
    The sixth section of said act is as follows: “No judgment in actions upon contract made in the year 1866 shall be entered by default or otherwise, in any court, against the mayor, aldermen and commonalty of the city of New York, except upon proof in open court that the amount sought to be recovered in said judgment still remains unexpended in the city treasury to. the credit of the appropriation for the year 1866 for the specified object or purpose upon which the claim sued for is founded; and hereafter all actions against the mayor, aldermen and commonalty of said city shall be brought in the Supreme Court of the first judicial district, which court shall have exclusive cognizance of such actions.” (See Sess. Laws, 1867, pp. 1596, 1606.)
    The following opinion was given at special term:
   Monell, J.

The act referred to is not pleaded, but I am asked to take judicial cognizance of it as a public statute. The immediate question before me, therefore, is whether such statute is a public or a private or local law. No objection is urged to the complaint other than that the act referred to has deprived this court of jurisdiction of any action against the corporation of the city of New York. The question of the validity of the act, as conflicting with section sixteen of article three of the constitution of the state, that “no private.or local bill, which may be passed by the legislature, shall embrace more, than one Subject, and that shall be expressed in its title,” is not properly before me at this- time; and I have therefore confined my examination to the only question which is before me. General or public acts are such as relate to or concern the interests of the public at large, and private acts are such as relate to private individuals, or which concern a particular species of some general genus or thing. Such are the definitions given in Smith’s Commentaries on Statutes, (§ 794,) and in Dwarris on Statutes, (vol 2, p. 464.) In his enumeration of public acts, they specify those concerning the king, queen or prince, or in the American states, the government and its co-ordinate departments; those concerning the whole spirituality; acts concerning trade in general, or which relate to all subjects of the realm; acts which concern all persons, though of a special nature, such as acts concerning assizes, or woods, or forests, chases, fisheries, and private acts, when recognized by a public act. And in the enumeration of private acts, are such as relate to a particular place, or to divers particular towns, or to one or divers particular countries, &c. Other acts which in their objects and operations are merely local or limited, are nevertheless treated as public acts, either by virtue of a special clause declaring them to be so, or because, although limited to a particular section or locality, yet they affect the public at large when acting within that section or locality, in reference to matters within the purview of the act. (Holland’s Case, 4 Co. 76 a.) “ The distinction,” says Blackstone, (1 Blade. Com. 86,) “between public and private statutes is this: A general or public act is a universal rule that regards the whole community, but a special or private act is rather the exception than the rule.” There are statutes which are local in one sense, which are nevertheless public statutes; for it is not necessary to constitute a statute a public act that should be equally applicable to all parts of the state. It is sufficient if it extends to all persons doing or omitting to do an act within the territorial limits described in the statute. In Pierce v. Kimball, (9 Greenl. 54,) an act which provided for the survey of timber in the county of Penobscot, and prohibited sales unless thus surveyed and marked, was held to be a public act, as it operated upon all persons. So an act for the preservation of fish in a particular river was pronounced a public act, inasmuch as it was obligatory upon all citizens. (Burnham v. Webster, 5 Mass. Rep. 266.) A similar decision was made in Jenkins v. Union Turnpike Company, (1 Caines’ Cas. 86,) where the act incorporating the company contained a clause vesting the road, on a certain event, in the people, and for that reason it was held to be a public act. And in Bank of Utiaa v. Smedes, (3 Cowen, 684,) the chancellor intimated that the act authorizing the bank to establish a branch office was a public act, because the act incorporating the bank declared it to be a public law. The point, however, was' not decided. Again, the act authorizing the railroads of the state to subscribe to the capital stock of another designated railroad was pronounced to be a general law, as it applied to all railroad corporations. (White v. Syracuse and Utica Railroad Company, 14 Barb. 559.) But an act of congress relative to insolvent debtors within the District of Columbia was held to be only a private statute, of which the state courts were not bound to take notice. ( Wright v. Paton, 10 John. 300.) Indeed all the local statutes which have, as far as my observation has gone, been declared to be public statutes, were either penal statutes affecting all citizens who might offend, or statutes of a remedial character, where all persons might come within their purview. (Pierce v. Kimball, ubi supra. Heridia v. Ayres, 12 Pick. 344.) In the case of The Sun Mutual Insurance Company v. The Mayor, &c. of New York, (8 N. Y. Rep. 241,) the validity of an act similar to the one I am considering, passed in 1850, was considered; and although it was not declared in that case that the act of 1850 was a private law, yet such result necessarily followed from the decision, which was that the act did not conflict with the constitutional provision to which I have already referred. If the court had pronounced the act a public statute, the point decided could not have arisen. The case may therefore be regarded as an authority. In two cases also recently decided, one in this court (Smith v. The Mayor, &c.) the other in the Supreme Court of this district, (Pullman v. The Mayor, &c.) the same view has been taken. The title of the act under consideration, as well as the subjects embraced in it, are of a purely local nature. It is an act to enable the local authorities to raise money by tax for the use of the corporation of the city. It empowers the hoard of supervisors of the county to cause to be levied and raised by tax, upon the taxable property of the county, for the use of the mayor, aldermen and commonalty of the city of New York, an amount equal to the several sums thereinafter stated. Then follows the several sums needed for the support of the city government. The act is not penal. It relates exclusively to the raising of money by tax levied upon property belonging to the inhabitants of New York, or such as own property therein; which money is appropriated to the support of the city government. Its operations are confined to this county, and it has no effect even of the remotest character, in any other part of the state, or upon the people of any other place. It is an enabling act, necessary for the administration of local government, and relates to and affects the interests of this county exclusively, and in which no other part of the state can have any concern. Nor can it be questioned by any others than those who are thus immediately affected by it. By its title, therefore, as well as in all its provisions, in the effect to be given to them, and in the interests it involves, it is within the definitions I have given, as local and private a law as any that could be enated. If I am correct that this act, commonly called “the tax levy,” is a local statute, then it should have been pleaded, and I cannot take judicial notice of it. My decision goes no further, as I have not deemed it either necessary or proper to look into the act to see whether it is or is not exposed to the constitutional objection urged upon the argument. That question can be determined when the act is formally brought to the notice of the court. There must he judgment for the plaintiff upon the demurrer with costs, with leave to the defendants to withdraw the demurrer and answer the complaint on payment of costs.

Judgment being entered accordingly, the defendants appealed to the general term.

Richard O’Gorman, for the appellants, defendants.

A. H. Reavey, for the plaintiff, respondent.

By the Court, Garvin, J.

This case comes before us on appeal from an order made at special term overruling a demurrer to the complaint and ordering judgment for the plaintiff. The defendants insist that this court has no jurisdistion of the action, claiming that section 6 of chapter 586 of the Laws of 1867, in all actions against the mayor, aldermen, &c. of the city of New York, confers exclusive jurisdiction upon the Supreme Court, and thus precludes this court from entertaining the case. ■ The plaintiff contends that the statute is private and local, and not being set out or referred to in the pleadings, the court will not regard it.

As to private and local enactments, this is the rule. Therefore, whether the sixth section is a public or private and local statute, is the question; not whether the act is private or local in its principal provisions. An act of the legislature may be local and private in many of its provisions, and yet contain an enactment which is neither local nor private. (Williams v. The People, 24 N. Y. Rep. 406.) If a public statute, the courts are bound to notice it. If this court has no jurisdiction of the action, the demurrer must be sustained so far as this particular question has any influence upon its action. But if for any causé the act itself, or this enactment, is unconstitutional, then the decision made by the court at special term is right. If the section is unconstitutional, it is void, and the Jurisdiction of the court remains the same, unaffected by the enactment.

The clause of the section in question provides that hereafter all actions against the mayor, aldermen and commonalty of the city of New York shall be brought in the Supreme Court, which court shall have exclusive, cognizance of such actions. The Supreme Court had jurisdiction of such actions, before 1867, but by this provision that jurisdiction is now exclusive. It is enacted not only that all actions against the corporation shall he brought in, but that court shall have exclusive jurisdiction thereof. The legislature intended to effect two purposes: (1.) To confer exclusive jurisdiction upon the Supreme Court; and (2.) To absolutely take from every other court in the state,' in the first instance, the power to entertain any action wherein the corporation of the city of Hew York are defendants. It is essentially public, in its object and purposes. We are not without authority upon the question. It has been held in People v. McCann, (16 N. Y. Rep. 61,) that an act local in its general provisions may contain a section which is public in its character, as contradistinguished from one private or local. That section contained provisions in relation to the courts of oyer and terminer of the state generally. It was-held to be a public statute.

This principle is approved by Denio, Judge, in Williams v. The People, (24 N. Y. Rep. 407.) Can it be said an enactment referring to one class of criminal cases is public, and another in regard to a class of civil cases is private, when each prescribes a rule by which parties and courts are to be governed, neither imposing upon either penalty or forfeiture ? I think not.

A further examination of the case may be useful, putting the case in a still stronger light. All courts are bound to look to, and take notice of, provisions touching their powers and jurisdiction, whether found in the constitution or statutes of the state. This court derived its powers, originally, from the statutes enacted by the legislature, and its continuance, with the powers and jurisdiction then possessed, from the constitution of 1846, “ until otherwise directed by the legislature.” There can be no doubt of the power of the legislature to add to, or take from, the power and jurisdiction of the court. The addition of the last clause of section 6 by way of amendment to the act organizing the court, would deprive the court of jurisdiction of all actions against the city, just as clearly as if it had been in the original statute. Must not the court take judicial notice of the act bringing it into existence, defining its powers, and all provisions enlarging or restricting its jurisdiction ? The court of errors, in Morris v. The People, (3 Denio, 399,) in regard to the act declaring the arrears of the salary of a judge of the court of general sessions a county charge, and directing the board of supervisors to audit and allow it, held it was not an appropriation of money for “local or private” purposes, and there was no force in the objection that it was a bill appropriating the public moneys for “ local or private purposes,” and did not require a two thirds vote to pass it. (§ 9, art. 7, Const, of 1821.) The same principle was reiterated in Conner v. The Mayor, ¿•a. (5 N. Y. Pep. 285,) changing the mode of compensating the county clerk of Hew York (among other officials) by the payment of a salary in lieu of fees. “ Acts concerning all persons generally, are deemed public, as distinguished from private acts, though it be in regard to a special or particular thing, such as a statute concerning the circuit court, oyer and'terminer, woods in forest.” (Bacon’s Abr. tit. Statute, P.)

Thé same rule is laid down in Williams v. The People Denio, J. says: an enactment which “ prescribes the rule of conduct for all persons, whether residents in the city or any other portion of the state,” is a public and not a private statute, because incorporated in the same act containing local provisions. There certainly can be no doubt about its constitutionality, if it is a public statute.

The application of these principles to the case Under consideration is obvious.

The order below should be vacated and judgment ordered for the defendants, upon the demurrer, without costs.

Monell, J.

Since the demurrer in this ease was decided by me at special term, my attention has been drawn to the case of The People v. McCann, (16 N. Y. Rep. 58,) which, as a decision of the court of last resort in this state, is controlling upon the only point noticed by me. That case, although cited by the defendants’ counsel, was not specially called to my attention on the argument of the demurrer at special term. A re-examination of the case upon the appeal from my decision, has led to a careful perusal of the ease of the People v. MeQann, and as it seems to me to very clearly hold that a provision of a public nature inserted in a local act does not render the latter unconstitutional and void, I am of course bound to follow and adopt the law of that case.

I have no doubt that the provisions contained in section 6 of chapter 586, of the laws of 1867,- standing by themselves, are of a public nature. They relate to actions against the corporation of the city of New York and confine jurisdiction over such actions to the Supreme Court. There is, however, no restriction upon the right to sue by any person having a cause of action, and therefore every person is or may be bronght within the purview of the statute, though he may not select the forum or tribunal where he will bring his action. These provisions are not unlike those which, in The People v. McCann, were held to be of a public nature. As the decision at special term was placed solely on the ground that the act referred to was a private and not a public statute, of which the court would not take judicial notice, and as that objection is now removed, by the authority of the case I have cited, it leaves any other objections to the statute open for examination.

I fully concur in the views expressed by my associate, Justice Garvin, that the Superior Court, deriving its jurisdiction and powers wholly from the legislature, may be deprived of such jurisdiction at the pleasure of the legislature; and that therefore it was competent for the legislature, confining jurisdiction over actions against the corporation of the city of New Toi’k to the Supreme Court, to take from the Superior Court all jurisdiction over such actions. I somewhat more at large expressed my views on this subject in the recent case of Burnham v. Acton, (1 Rob. Pr. 395.)

It has been suggested that the statute of 1867 is in conflict with the provision of the constitution that “ all corporations shall have the right to sue and shall be subject to be sued in all courts, in like cases as natural persons,” (Const. art. 8, §3;) but I think, without considering the doubt whether municipal corporations are included in the constitutional provision, that it is very clear that it was only intended to subject corporations to the jurisdiction of such courts as had jurisdiction at the time the corporation was sued, and not to deprive the legislature of the power of diminishing or wholly destroying the powers of any court, not created or protected by the constitution. Such power of the legislature cannot be taken from it by implication merely.

But corporations are subject to be sued in all courts in like manner as natural .persons, and jurisdiction over such persons has frequently been enlarged or diminished by the legislature.

The general power of the legislature over courts of local jurisdiction was considered in Exparte McCollum (1 Cowen, 450-467,) and the power of the legislature was there recognized and sustained.

I concur in reversing the order overruling the demurrer.

Order reversed.


author: By the Court, Barbour, J. Robertson, Ch. J.

text:
    Union Adams, plaintiff vs. John S. Blancan and Louis H. Rosey, defendants.
    1. Where one buys a negotiable promissory note, before maturity, on the representation of the holder that it is genuine, and without any reason to suspect the truth of such representation, his right to recover is perfect, and cannot be affected by a conversation between his vendor and the makers of the note, of which he had no knowledge, previous to his purchase.
    2. Hence it is not erroneous to direct a verdict for the plaintiff, in such a case, although there is contradictory evidence touching such conversation between the holder and makers.
    (Before Robertson, Ch. J., and Barbour and Garvin, JJ.)
    Heard October 27, 1868;
    decided December 31, 1868.

      Action upon a promissory note for $750, made by tbe defendants for the accommodation of the payee, and discounted by the plaintiff.

      Z. W. Butcher, for the plaintiff.

      John B. Fogarty, for the defendants.
   By the Court, Barbour, J.

This case comes before us upon exceptions, directed to be heard here in the first instance and for judgment.

The action is brought upon a promissory note for $750, alleged to have been made by the defendants, payable to the order of C. L. Derby, and indorsed by him. The case shows that the defendants made the note for the accommodation of Derby, and that the latter indorsed the same and placed it in the hands of one Van Aernam, with instructions to get it discounted for him, (Derby.) After that, but before the note became due, Charles E. Battelle called upon the plaintiff with the note and requested him to buy it, but he refused to do so unless he could be satisfied that the signature was genuine. Battelle then went.out, and after being gone some minutes, returned and informed the plaintiff that he had seen one of the makers of the note and had been told by him that it was genuine and would be paid; and, thereupon, the plaintiff bought and paid for it.

■ Upon the trial, Battelle testified that when he left the plaintiff, .as above mentioned, he went to one of the defendants and asked him if the note was “ all right,” and that the latter answered that it was, and would be paid at maturity. Another witness, (Clark,) in giving an account of that conversation, stated that the reply of the defendant was that he gave the note to accommodate Derby, and he supposed Derby would take it up, but that he, (the defendant,) would not do so, as it was not a business note.

The judge directed a verdict for the plaintiff, to which the defendants’ counsel excepted; and the only point raised by him here is that such direction was erroneous, inasmuch as there was contradictory testimony touching the conversation between Battelle and the defendant.

The objection is, clearly, untenable. The plaintiff bought the negotiable promissory note in question, before the same was due, on the representation of the then holder that it was genuine, and having no reason, so far as the testimony shows, to suspect the truth of the statements so made to him. His right to recover, therefore, was perfect, and could in no manner be affected by a conversation between his vendor and the makers of the note, of which he had no knowledge previous to his purchase ; whether such conversation was correctly stated by Battelle or by Clark, or by neither.

The plaintiff is entitled to judgment upon the verdict, with costs.

Robertson, Ch. J.

The promissory note sued upon in this case, although signed with the name of the firm of the defendants by one of them, (Blancan,) was not made in their business, but entirely for the accommodation of Derby, to be used by him to raise money upon for his own use. After he placed it in the hands of Van Aernam, to get it discounted for him, a Mr. Battelle received it from a Mr. Mc-Allister, (a lawyer,) to whom he afterwards gave the check he got. for it, and the latter handed it to a Mr. Polhemius, who drew the money for it. Battelle testified that Polhemius told him that he took it from Van Aernam for a debt he owed him. If this was true, no title to the note was acquired until it came into the hands of the plaintiff as a Iona fide purchaser; if he had notice of the misappropriation by Van Aernam of the note to pay a debt of his own, he was not such a bona fide purchaser. A witness (Clark) testified that when Battelle asked the defendant Blancan as to the genuineness of the note, and whether it would be paid, the latter said “ there was some trick of somebody, * * it was some trick of Derby getting the note of him; * * he . said Mr. Derly was swindled out of it, or something of that kind,” and also “ that it was not a business note,” or of the firm. This possibly would have been enough to put the plaintiff on inquiry as to the title to the note, and the liability of both partners for it, and relieved the defendants (or at least the defendant Eosey) from responsibility, if Battelle was the plaintiff’s agent. But he testifies himself that he was agent for the' seller of the note and the plaintiff only authorized him to ascertain if the note was genuine, and would be paid; whatever else therefore was said to him, beyond the genuineness of the note, was not notice to the plaintiff, of the facts communicated, and he took the note, without notice tending to impair the title of the holder of it, thereto.

I concur, therefore, in thinking that judgment should be rendered for the amount of the verdict, and the exceptions •overruled.


author: By the Court, Robertson, Ch. J.

text:
    Warren Ayrault, plaintiff and respondent, vs. The Pacific Bank, defendants and appellants.
    1. Where the holder of promissory notes, on leaving them at a bank for collection informs the discount clerk of the residence and place of business of the maker, he does all that can be required of him; and if the bank undertakes to have the notes properly presented for payment and fails to do so, it is liable 1 to the holder for such neglect.
    2. A request to a bank to have notes “ protested,” if not paid, will not limit the liability of the bank, in case of negligence. By common usage, particularly in regard to promissory notes, in commercial dealings, “protesting,” has come to include.taking all the necessary steps to charge an indorser.
    3. So, also, depositing a note for collection does not imply merely the receipt of the money, if paid by the maker, but includes the taking of all such steps as are necessary to charge an indorser.
    4. Merely employing a notary, for the purpose of making a demand, does not discharge the party undertaking the collection qf a note, from the obligation of procuring a proper presentment, and notice in case of non-payment. No custom can control such a positive and universal rule of law.

      6. Although a bank is not bound to contract to present a note for payment, when due, or may limit its liability, or make its contract in any way it thinks proper, yet if it does enter into an agreement to present a note when due, it is responsible for the breach of it, as such, and not for a failure to discharge a public duty.
    6. An action for such breach of contract, brought by an assignee, is not liable to the objection that the claim, being for a tort, is not assignable.
    7. Such objection, being merely one of form, as to the want of proper persons as plaintiffs, is waived by not being set up by answer or demurrer.
    8. The obligation, of a bank undertaking to collect a note, is not an absolute one that the note shall be demanded of the maker when due, but merely that the bank shall use due diligence to charge the indorsers by demand and notice; and whatever would be due diligence on the part of the holder would be due diligence on the part of the bank.
    9. If the person leaving notes at a bank, in behalf of the holder, for collection, says that he does not know where the maker lives, and the notary exercises such diligence, in ascertaining his residence, as is required in common and ordinary business transactions, to charge the indorsers, the bank is not liable for his failure to demand payment of the maker and give notice to the indorsers.
    10. Where one of the holders of a note, on leaving it at a bank for collection, in answer to an inquiry of the discount clerk as to the place of residence of the makers, replies that he does not know where he resides, it is the duty of the clerk to inquire of the other holder, where such residence is. It is, therefore, proper to leave it to the jury to say whether his omission to do so is or is not consistent with due diligence; instead of instructing them, peremptorily, as matter of law, that an omission or refusal by one of the holders of a note to state where the maker’s residence is, relieves the bank of all obligation to ask the other, in the course of its inquiry,
    11. In such a case it is entirely a question of fact for the jury, whether an inquiry of the indorsers would have tended to inform the bank of the residence of the makers, and was an act of proper diligence for that purpose. The mere fact that there was no evidence in the case that the indorsers knew such residence, is not sufficient to show that all inquiry of them would have been useless.
    12. A want of actual demand being shown, this makes out, prima facie, a case of negligence. It is for the defendants to show due diligence; and if any natural source of intelligence appears in the case, they are bound to show that they applied to it in vain.
    13. The real question, in such a case, is, whether the defendants performed their contract by using, with the information they possessed, due diligence, by themselves or their agents, to present the notes, when due, to the makers for payment, and not whether the notary, who was merely one of such agents, had, with the information he possessed, used such diligence.
    (Before Robertson, Ch. J., and Barbour and Garvin, JJ.)
    Heard October —, 1868;
    decided December 31, 1868.)

      This action was brought to recover damages from the defendants for their neglect to demand from the maker of two promissory notes (deposited with them for collection by the plaintiff’s firm, consisting of himself and his brother George Ayrault,) payment thereof, at their maturity, whereby the indorsers of such notes (Ryan & Wehman) were discharged. The maker of such notes was one William Konz, (a butcher,) residing and doing business at the time of the maturity of' such notes in West Thirty-ninth street (No. 246) between Ninth and Tenth avenues, in the city of New York. They were payable to the order of the maker, and indorsed for his accommodation by Ryan & Wehman, and had been delivered to the plaintiff’s firm to secure the price of chattels bought from it by the maker. The plaintiff ’s brother (George Ayrault) had kept an account with the defendants in his own name for several years previously, and continued it in that form, after he took the plaintiff into partnership, and kept the account of the firm in the same name at the time of the deposit of such notes. ■ They were deposited by one of the plaintiff’s firm with the defendants for collection, the day before the first note became due. (February 3, 1859.) At the time of such deposit, the maker’s signature being illegible, the discount clerk who received such notes, wrote above it his name in pencil legibly. The maker’s name was not in the New York Directory, but his residence was there given as that of one William Konc. The indorsers of such notes did business on the Ninth avenue, (No. 430;) both lived near that place, and their places of business and residence were in the New York Directory. Both notes remained unpaid at three o’clock of the days on which they respectively became due, and each was on those respective days delivered by the defendants, according to their usual practice and the custom of banks in the city of New York, to a notary public (R. 0. Fellowes, Esq.) to be protested. He had previously sent notices of protest of the other'notes to the plaintiff’s firm, directed to a certain place in New York, (44th street, "Washington Drove Yard,) but not finding the maker’s name in the Hew York Directory, inquired of the defendants’ cashier where the holder lived, and was told, “in Poughkeepsie.” After finding the indorser’s place oí business closed, without demanding payment of the notes, he sent notice of non-payment to the former. He received the second note three days before it was due; on finding three persons -of tire name of “ Ayrault,” in the directory, and not knowing which was the holder of the note, he pursued the like course with it, without demanding payment of the maker or making any efforts to find him.
    The complaint, after setting forth the making, indorsement and delivery of the notes in question to the plaintiff’s firm, alleged that the latter deposited them with defendants for collection, and they so received the same, and “undertook the collection thereof,” and “further undertook and it was their duty to demand or cause to be demanded payment of said notes” from said maker, when they became due, “ and, in case payment was not made, duly to notify the indorsersbut that the defendants in violation of their “duty and undertaking” by “ gross carelessness and negligence, neglected to demand payment of such notes of the maker, or cause the same to be demanded, and no demand was made of such maker when such notes became due, through gross carelessness and negligence of the defendants, whereby such indorsers were discharged.” It also set forth an assignment or release by the plaintiff’s brother and partner, (George Ayrault,) to the plaintiff of his interest in the claim sued upon.
    The answer set up as a defense that the plaintiff at the time of depositing “ the notes in the bank, did not give the defendants any information as to the residence of the maker, or any instruction as to the course to be adopted in order to present such notes to him for payment, but on being asked for such information and instruction, wholly failed and neglected to give the same; and that “ the defendants used all due diligence to decipher the name of the maker, which was illegibly written, or find out his residence; ” and they averred that “ their failure to find the maker was not owing to their negligence or carelessness, but wholly caused by that of the plaintiff.” Another defense was also set up in the answer, not material to be stated, as no evidence was given respecting the same.
    The evidence given on the trial conflicted on two points : First. As to the person by whom the notes were left with the bank for collection. The plaintiff testified that he was such person; while the collection clerk (Selden) testified that his brother George did so, which was denied by the latter. Second. As to any information given by the plaintiff to the defendants, as to the residence of the maker. According to the plaintiff'’s testimony, the discount clerk of the defendants’ (Selden) asked Mm, and according to the latter’s, he (Selden) asked Creorge Ayrault where the maker lived. The former testified that he answered, that Konz was a butcher and kept a butcher’s shop in Thirty-ninth street, between the Hinth and Tenth avenues; but he did not know the number. He also stated that there was only that butcher’s shop between those avenues in that street. The discount clerk swore that George Ayrault told him, in answer to such question to him, that he did not know where such maker lived, upon which the former told the latter that “ the notary must then do the best he could.” The cashier of the defendants testified that he told the notary that George Ayrault was at Poughkeepsie, because the latter told him he had bought a farm at that place for grazing purposes, and he believed him.
    After the plaintiff had closed his evidence, the defendants’ counsel moved to dismiss the complaint upon three grounds: 1st. The action was for a tort, and therefore not assignable. 2d. The defendants only undertook to hand the notes, if not paid, to a notary for presentment, and not to demand payment of .them, themselves, and having handed them to' a notary for that purpose their duty was discharged. 3. The certificate of protest showed due diligence by the notary. That motion was denied.
    After the close of the whole evidence, the defendants’ counsel again moved to dismiss the complaint on two additional grounds: 1. That the depositor directed the note, if not paid, to be given to a notary to protest, according to the usual custom of banks. 2. That the bank is not liable for the negligence of the notary. The counsel for the defendants then requested the court to charge the jury sixteen different propositions or instructions. Whereof in substance the first was: That if either the plaintiff' or George Ayrault said to the discount clerk of the defendants, that he did not know where the maker of such note lived, it relieved the notary and the defendants from any duty to inquire of either Ayrault, .where such maker lived. The second and third, taken together, were: That the defendants were not liable for any statement made by their cashier to the notary, respecting the residence of the holder of'the note, and that both the notary (if he believed such statement,) and the defendants were excused from making any further inquiry as to the holder’s residence. The fourth was: That the cashier was justified in telling the notary that George Ayrault lived in Poughkeepsie, if the latter never notified the defendants that he lived at the place where his name was, in the directory (93 West Fortieth street,) and led the cashier to believe he had removed to Poughkeepsie, and the latter made such statement to the notary in good faith. The fifth was: That the claim, being for a tort, was not assignable. The sixth, seventh and eighth, together, were: That the defendants were entitled to a verdict, because the only contract, duty or obligation proved to have been entered into or assumed by them was, to collect the note, and if not paid to have it protested-, or if the jury believed the usage and custom of banks to have been (as testified to by a witness) not to demand payment of notes not paid by their officers or clerks, but to hand them to a notary for the purpose. The ninth and tenth, together, were : That no negligence, gross or otherwise, on the part of the defendants had been proved. The eleventh, twelfth and thirteenth, taken together, were also substantially: That it was such concurring negligence as prevented the plaintiff from recovering if the plaintiff left the notes in question with the defendants without informing their discount clerk where their maker lived, after such clerk told him that the notary must do the best he could; or if either of the Ayraults, knowing the residence of such maker, told such clerk that he did not know such residence, or the plaintiff' or George Ayrault, (if he left the notes with such clerk,) omitted to tell him where such maker resided. The fourteenth was: That there was “ no proof of any contract duty or obligation on the part of the defendants to demand payment of such notes and give notice of non-payment.” The last two of such requests, taken together, were in substance that there was “ no evidence that Ryan & Wehman knew or could have given information of the residence of Konz;” and that “ in the absence of such proof, the jury could not presume that” they “had such knowledge; and no negligence of the defendants or the notary could be predicated upon any omission to make inquiry of ” them.
    The learned judge, before whom the issues in the action were tried, charged the jury, among other things, that the defendants “ assumed a liability or the performance of a duty, which they were to carry out by demanding payment of these notes respectively, if they we not paid when they became due;” and after calling upon them to remember that the plaintiff testified, that if he had been asked at the time the notes were left for collection, he knew where the maker lived, and that the discount clerk swore “ positively the plaintiff was asked that question, and said he did not know,” and stated that “it should have a strong influence upon their verdict and weigh a great deal,” if they were “ satisfied the discount clerk asked that question and was told by Ayrault he did not know.” He further charged that “the notary was bound to take all the common and ordinary means of ascertaining, such as business men would use, when they undertook to perform a duty for another and that it was for them " to say whether he used due diligence in ascertaining where William Konz lived it was also for them to say “ whether or not he exercised all the diligence a man would be ordinarily required to exercise in business, or was he negligent in his duty. If he was negligent in his duty and did not exercise all the diligence a man should exercise under such circumstances, then the bank is liable to the plaintiff for the amount of the note; because his negligence is their negligence.” He also submitted to such jury the question, whether “ there was ' any understanding or contract between either the plaintiff or his •brother, whichever left the notes, and the discount clerk of the .defendants, that would take the transaction out of the ordinary rules.” If the person who left the notes said “ he did not know where the maker lived,” and they should “ find in addition, that the notary exercised such diligence as is required in common and ordinary business transactions, to charge, the indorsers,” they should “ give a verdict for the defendants,” but in other specified contingencies, for the plaintiff; that the plaintiff was not “ guilty of negligence on his part in not communicating information of the maker’s residence, when the notes were left,” so as to defeat the action.
    The counsel for the defendants excepted to so much ot the charge as was inconsistent with his requests, as well as to every refusal to charge as requested.
    The jury, found a verdict for the plaintiff for the amount claimed, with interest, and the defendants appealed from the judgment entered therein.
    Other material facts appear in the opinion of the court.

      A. R. Dyett, for the defendants, appellants.
    I. The court erred in refusing to dismiss the complaint on the grounds set forth in the case, and in refusing to charge the fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth requests. These may all be considered together.
    1. The demand for which the action was brought was a pure tort, sounding in damages. The plaintiff claimed as assignee of Warren Ayrault, but the demand was not assignable. (Zabriskie v. Smith, 13 N. Y. Rep. 322.)
    2. Not only the universal custom of the defendant and other banks, but the express contract proved between Ayrault and the bank was, to have the notes protested; and to deliver them to a not'ary (a public officer) for that purpose. This was the only contract made, and this was the only duty of the bank. This contract, it performed, and this duty it faithfully discharged. It is not liable for any negligence or omission of the notary. Under these circumstances the notary was not the agent of the bank. Regarding the case in the light of this express contract, the bank' could not employ any other person than a public officer, (a notary;) and being thus obliged to employ another, in whose selection it could have no choice, (except to select some notary,) it is entirely well settled, that the agent is not liable for the negligence of the sub-agent, unless the latter was an unfit and improper person to be employed to the knowledge of the agent; or the latter was guilty of some negligence or carelessness in the limited selection of a sub-agent, which the agent had the power of making. (Dunlap’s Paley on Agency (infra.) 45, 46, and notes.) Regarding the case in the light of the custom and usage of the bank, (of which Ayrault had knowledge, and supposed and expected would be adopted,) the bank’s liability can only be established by showing a similar kind of negligence or carelessness. Whether this custom be regarded as forming a part of the contract, or be a usage of business, with which the agent was authorized to comply without being guilty of negligence, when sought to be charged with it, if the agent act (as the bank did) in good "faith, it is not liable for any default or negligence of the sub-agent employed by it. (Dunlap's Paley on Agency, 4th Am. ed. 1856, by Waterman, p. 4 et seq. and notes, and cases cited there. Id. 45, 46, and notes. 5 John. 393. 12 Id. 218.)
    3. In all the cases in which banks have been held liable for negligence in omitting to demand' payment, or give notice of non-payment to indorsers upon notes deposited with them for collection, there was no proof of any such contract or custom, as proved in this case, but the court has assumed that the bank undertook itself to demand payment and give notice, thus having power to select any agent to do these acts, whom it might select without restriction, and consequently being liable for that agent’s fidelity. (See cases, cited infra.) It is not necessary to protest a promissory note. Anybody can demand payment, and the holder may give notice. But a protest has its advantages. It is an official act, and by statute presumptive evidence of demand. (2 R. S. 283, §§ 46, 47.) And a notary’s certificate is evidence of the service of notice. (Laws of 1833, ch. 271, § 8.) Mr. Ayrault desired these advantages, and he had a right' to them. If the bank in this case had demanded payment by its own clerk, and given notice, it would have violated Mr. Ayrault’s instructions, and broken the contract which it made with him. (20 John. 372. 11 Wend. 473. 15 N. Y. Rep. 167. 9 id. 582. 7 id. 459. 11 id. 203.) In the case in 7 N. Y. Rep. (supra,) the distinction between that case and The Bank of Washington v. Triplet, (1 Peters, 25,) where the receiving bank received the note to be transmitted for collection, is clearly recognized, and the non-liability of the bank in the latter case is admitted.
    H. The court erred in refusing to charge the first and fourth requests, and in charging, as the court did, on the subject of the first request, and not noticing the fourth. The charge was equivalent to an absolute refusal to charge either proposition, and they were both correct, and very’ material on the question of negligence.

      III. The court also erred in refusing to charge the fifteenth and sixteenth requests, as the court absolutely refused to do.

      E. N. Taft, for the plaintiff, respondent.
    I. The liability of a bank, receiving paper for collection, for failure to demand payment, and give notice to the indorsers, is well established by numerous decisions. (Smedes v. Bank of Utica, 20 John. 372. S. C. 3 Cowen, 663. McKinster v. Bank of Utica, 9 Wend. 46. S. C. 11 id. 473. Allen v. Merchants’ Bank, 22 id. 228, opin. of Senator Verplanck. See also Walker v. The Bank of the State of New York, 5 Seld. 584; Montgomery County Bank v. Albany City Bank, 3 id. 460; Commercial Bank of Pennsylvania v. Union Bank of New York, 1 Kern. 211.) The law is also clearly well settled that a bank does not fulfill its duty by putting the paper into the hands of a notary, but, on the contrary, the bank is answerable for the conduct of its agents in the premises, and their neglect is the neglect of the bank. (Allen v. Merchants’ Bank, 22 Wend. 241. Montgomery Co. Bank v. Albany City Bank, 3 Seld. 459. Commercial Bank of Penn. v. Union Bank of New York, 1 Kern. 211.)
    II. All the questions that can come up for consideration on this appeal are raised by the exceptions contained in the case, and unless the ■ appellants can prevail upon some of these the-verdict must be held conclusive.
    III. But none of the exceptions are well taken.
    1. The motion for a nonsuit was properly denied.
    2. Consider next the exceptions at folios 77,178 and 179. (a.) The evidence ruled out at folio 77 but nevertheless gotten in at folio 173 was of no consequence or pertinence. For the proof that it was customary for banks in the city of Kew York to hand notes received for collection when not paid to a notary to be protested does not tend to show that the banks are not understood to obligate themselves when they receive notes for collection, to hive them duly presented for payment and the indorsers duly charged.
      (b.) Indeed it has now been held so often in all our courts that a bank in the state of New York, receiving a note for collection undertakes to have proper demand made and notice given, and is answerable for all its sub-agents, that it must be considered with us such a well settled rule of law that no proof of usage, however pertinent, could be considered admissible in the attempt to overcome it. (Woodruff v. Merchants’ Bank, 25 Wend. 675. Bowen v. Newell, 4 Seld. 195.) (e.) It is, however, sufficient for the present purpose to say that the proof in this case was entirely impertinent—not even sufficient to be given to a jury—much less to call for a dismissal of the complaint, which was what the defendants requested of the court, (d.) Assertion is made in the motion for dismissal, that such was the direction of the depositor, to wit: “for the bank to give the notes, if not paid, to a notary to have them properly protested.”, And this was made one of the grounds for asking the court to take the case from the jury and dismiss the complaint. But there was no such testimony. The language was, “I told him, (the clerk,) I wanted them protested if not paid.” Nothing was said about a notary. And it means that he wanted the bank to see to it, that the indorsers were properly charged. Such is held to be the popular meaning of the term “protested,” in several cases. (See especially, Coddington v. Davis, 1 Comst. 189.) Certainly the' case could not have been taken from the jury on this' evidence, (e.) The other questions raised on this motion have all been sufficiently considered. The motion was pi’operly dezzied.
    3. The exceptions relating to the charge should be overruled, for sevez’al reasons, (á.) The defendants’ exception to the refusal to charge each of the requests submitted, except so far as charged, is too general, and will, therefore, not be reviewed. And the same is true of the exception to every part of the charge inconsistent with the requests. (Magee v. Badger, 34 N. Y. Rep. 248. Chamberlain v. Pratt, 33 id. 47, and cases cited. Hunt v. Maybee, 3 Seld. 273.)
      (b.) But if otherwise, the defendants were not entitled to have a single one of their 'requests to charge adopted by the court in the form requested, (e.) The charge as made, neither refuses nor is inconsistent with any proper request to charge, made by the defendant, (d.) A moment’s attention to the other exceptions will suffice to show that none of them can be sustained.
   By the Court, Robertson, Ch. J.

The learned justice, before whom the issues in the action were tried, after reminding-the jury that the plaintiff had testified that he told the discount clerk of the defendants, (Selden,) where 'the maker of the note in question lived and did business, charged them that if he did so, and the discount clerk failed to make a memorandum of it on the note, that was a matter with which the plaintiff had nothing to do; the defendants, were responsible. This was clearly the law of the case; for if the plaintiff communicated the residence of the maker to the defendants, he did all that could be required of him, and if they undertook to have the notes properly presented for payment and failed to do so, they were clearly responsible.

But the counsel for the defendants insists that under the evidence, they did not enter into any contract, assume any duty, or incur any obligation to present the note in question to the maker for payment, and give notice of non-payment to the indorsers; that they only undertook to hand it to a notary for that purpose, according to their usual practice, and the custom of banks in the city of New York, and that the plaintiff only requested it to be “protested ” if not paid. The requests made on the trial, from the fifth to the eighth inclusive, and also the fourteenth, were based on that assumption. I apprehend the use of the term “protested ” cannot limit the liability of the defendants. By common usage, particularly in regard to promissory notes, in commercial dealings, it has come to include taking all the steps necessary to charge indorsers. (Ood dington v. Davis, 1 Comst. 109.) So also depositing a note for collection does not imply merely the receipt of the moneys, if paid by the maker, but includes taking all such steps before mentioned. (Smedes v. Bank of Utica, 20 John. 372. S. C. 3 Cowen, 663. McKinster v. Bank of Utica, 9 Wend. 46. S. C. 11 id. 473. Allen v. Merchants' Bank, 22 id. 228, per Verplanck, senator. See also Walker v. Bank of State of New York, 5 Seld. 584; Montgomery County Bank v. Albany City Bank, 3 id. 460; Commercial Bank of Pennsylvania, v. Union Bank of New York, 1 Kern. 211.) The cases just cited also establish that the mere employment of a notary for the purpose of making a demand, does not discharge the party undertaking the collection, from the obligation of procuring a proper presentment and notice in case of non-payment. No custom can control such a positive and universal rule of law. The five requests to charge before mentioned, were therefore properly refused.

The same authorities and considerations dispose of the objection that the cause of action was not assignable, contained in the fifth of such requests to charge. The defendants undertook no such public duty as a common carrier does, since they were not bound to contract to present the note when due; they might have limited their liability, or made their contract in any way they thought proper. If they did enter into an agreement to present such note when due, they are responsible for the breach of it as such, and not for a failure to discharge a public duty; nor does the allegation in the complaint that such obligation was a duty or trust, or that the defendants were guilty of negligence, alter that aspect of it. Besides, the objection is merely one of form as to the want of proper persons as plaintiffs, which is waived by not being set up by answer or demurrer. Moreover, the assignment was a mere release of the interest of one to the other already having a right of action. Such objection was therefore properly overruled, and such request rightly refused.

The precise nature, however, of the defendants’ obligation does not so clearly appear from the cases already cited. Of course it is not an absolute one that the note shall be demanded of the maker when due, but merely that the party undertaking the collection shall use due diligence to charge the indorsers by demand and notice; and whatever would be due diligence on the part of the plaintiff'would be due diligence on the part of the- defendants, although the converse of the proposition would not be true. For if the plaintiff or his partner knew the residence of the maker, as they testified, and they omitted to have the notes demanded there, the indorsers would be discharged; but the defendants would not be liable, if the plaintiff did not communicate the residence of the indorsers, and they used due diligence to discover such residence. And this was what the learned judge on the trial intended by instructing the jury to find a verdict for the defendants, if the man who left the notes, said he did not know where the maker lived and “the notary exercised such diligence as is required in common and ordinary business transactions, to charge the indorsers.” This view brings up the consideration whether, as matter of law, the defendants were relieved from any. duty to inquire further of either the plaintiff or George Ayrault, where the maker of the note in question lived, if either of them told the discount clerk that he did not know his residence, as insisted upon in the first request of the defendants to charge, or it was such concurring negligence on the part of the plaintiff and his brother as prevented the former from recovering, if he left the notes in question without informing the discount clerk of the defendants where such maker lived, after such clerk had said to him “ the notary must do the best he could;” or if either of the Ayraults, knowing the residence of the maker, told such clerk he did not know it; or if the plaintiff or George Ayrault (if the latter left the notes for collection) omitted to inform such clerk or the defendants of such residence. The learned judge on the trial charged the jnry, that “it should have a strong influence on their verdict and weigh a great deal,” if the clerk asked that question, and was told by one of the Ayraults that he did not know. This left it open for the jury to decide, as matter of fact, whether one of the holders, having either omitted to give the required residence or denied knowing it, it was a matter of due diligence to inquire of the other. The defendants knew, or at least it was never questioned on the trial that they knew, that the notes in question belonged to the plaintiffs’ firm, and if George Ayrault, as testified to by their clerk, denied knowing and lived at Poughkeepsie as their cashier stated, there was so much more reason for inquiring of the plaintiff who lived here, where the residence of such maker was. It was therefore properly left to the jury to say whether such omission was or was not consistent with due diligence, instead of instructing them peremptorily as matter of law, that an omission or refusal by one of the holders of a note to state where the maker’s residence was, relieved the defendants of all obligation to ask the other, in the course of their inquiry. The mere omission by both might have relieved the defendants from such obligation, but no such proposition was asked to be given. Under, those put put forth, the plaintiff might have told the residence and his brother denied knowing it, and the defendants be discharged. The first, with the eleventh, twelfth and thirteenth of such requests, were properly refused.

Somewhat analogous considerations govern the last two requests (15th and 16th) preferred on behalf of the defendants, in reference to inquiries of the indorsers (Ryan & Wehman) as to the residence of the maker. It was entirely a question for the jury, whether an inquiry of the indorsers tended to inform the defendants of the residence of the makers, and was an act of proper diligence for the purpose. The mere fact that there was no evidence in the ease, that the indorsers knew such residence, is not sufficient to show that all inquiry of them was useless. A want of actual demand was shown in the case. This made out prima fade, a case of negligence. It was for the defendants to show due diligence, and if any natural source of intelligence appeared in the case, they were bound to show that they applied to it in vain. It is a natural thing to suppose that an indorser knows where the maker of a note payable to him is to be found; and if it were perfectly evident that the jury had found a want of due diligence, simply from the omission to apply to such indorsers, the court would not disturb the verdict as being without evidence to support it. The last two requests were, therefore, properly refused.

The real question in this case was whether the defendants performed their contract by using, with the information they possessed, due diligence, by themselves or their agents, to present the notes in question, when due, to the makers for payment, and not whether the notary, who was merely one of such agents, had, with the information he possessed, used such diligence. It was, therefore, wholly immaterial to the plaintiffs’ rights, what communications took place between the different agents of the defendants, such as their cashier and notary, when attempting to discharge the duty of the defendants. What passed between such cashier and notary, relative to the residence of George Ayrault, was, therefore, wholly immaterial in this case. The only material question that could arise would be whether what Ayrault told such cashier was sufficient to induce a belief in the mind of an ordinarily intelligent man that "he had changed his residence; but no such question was propounded. What the cashier was led to believe was immaterial, if the information did not warrant such a belief. His statement to the notary of what he believed, whether officially and in good faith or not, was not material, and could not excuse the defendants, although it might their notary, from making inquiries. The second, third and fourth requests were, therefore, properly refused.

There was clearly enough evidence in the case to be submitted to the jury on the question of negligence; the ninth and tenth requests to charge were, therefore, properly refused.

The exceptions to the admission and rejection of evidence are generally founded on the same grounds as the requests to charge, and were, as well as those which were not so, untenable.

The judgment appealed from must be affirmed, with costs.


text:
    Edward Roberts, plaintiff and respondent, vs. William Kain, defendant and appellant.
    1. The owner of premises leased to a tenant, cannot create a lien for the storage of articles left on the premises by such tenant, on being dispossessed for the non-payment of rent, without some consent, express or implied, of the owners of, or parties interested in them.

      2. The landlord might have a right to notify the owners of, or parties interested in, such property to remove it, or that he would remove it off the premises; but its presence there being either a matter of accident, or else a trespass, no contract could arise, unless by some other act of the parties interested.
    3. Where an action to recover the value of such property is brought by the assignee of a mortgage, who has never been in possession of the property, his recovery will he limited to the extent of the prejudice he has received by the conversion of the property by the defendant; leaving the defendant still liable to the owner of the equity of redemption for his damages, if any, as to the residue of the value.
    (Before Robertson, Ch. J., and Garvin, J.)
    Heard October 21, 1867;
    decided December 31, 1868.
    Appeal by the defendant from a judgment entered on the . report of a referee. The action was brought to recover the value of certain personal property alleged to have been converted by the defendant.
    The defendant let to Waugh a building on Greenwich street, in which was a steam engine, boiler, belting and shafting, for- making boxes, bought by Waugh of the former tenants. On the 20th September, 1861, Waugh was dispossessed by summary proceedings for non-payment of rent. Hull & Howell then hired the premises, and, on the permission of Waugh or by contract with Waugh, both known to the defendant, ran the engine. After two months they left. On November 1st, the defendant gave notice to Waugh that the property would be on storage at $50 a month; he gave notice of the sale of the property, for storage, to Waugh and to Roberts, and in February, 1862, sold it at auction for $325. Roberts, the plaintiff, held mortgages on the property, and just before the sale received a bill of sale of it, as security, from Waugh, forbade the sale, and before suit brought demanded the property of the defendant, who refused to deliver it.
    The referee reported in favor of the plaintiff.

      A. W. Clason, for the defendant, appellant.

      Titus B. Eldridge, for the plaintiff respondent.
   By the Court, Robertson, Ch. J.

From the evidence before us, and the findings of fact by the referee contained in his report, it appears that whatever right of possession the plaintiff had to the articles in question he derived from three different instruments, two of which only are mentioned in the complaint. The first was, (as appears from both the evidence and report,) an undated bill of sale, executed in February or March, 1861, by Waugh as security to the plaintiff for promissory notes amounting to $1200. The second, (as appears from the evidence alone,) was an assignment executed May 31, 1861, by Broekelbank, to the plaintiff*, of a mortgage to the former, executed on the 14th of the same month, to secure about $820. And the third, an assignment, in October following, (1861,) of a mortgage from Hull, (who appears to have been the original owner of such articles, and possessor of them when first placed on the premises,) to Messrs. Butteviek and Simpson, in November, 1857, not renewed on file until November, 1861. The amount due upon that mortgage at the time of its assignment, as appears in evidence, was $350.

The articles in question do not appear to have been removed from the premises on which they were first placed since the time of the first occupation of the latter by Hull £ Howell, until the plaintiff took away some, and the defendant after selling the rest claimed title thereto by a repur- ■ chase from the vendees. Waugh had gone into possession of those premises on the 21st of March, 1861, before the ' lease to Hull Howell expired, and was himself dispossessed for non-payment of rent in August or September, 1861, leaving the articles in question behind him. He subsequently leased, (as stated in the referee’s report, but hired, as stated in the case,) with the defendant’s consent, those articles to Hull & Howell, who returned to the premises as tenants. The terms of such leasing or hiring do not appear in the case, and are unimportant. Hull Howell abandoned the possession of the premises and the articles in question in two months after they went in a second time."

The complaint does not allege any absolute ownership of the articles in question by either the plaintiff" or Waugh. The averment therein of the acquisition by the former of an interest therein by the latter’s assignment of his interest in such chattels, (previously stated to be that of a mortgagee only, a statement wholly unnecessary if he were owner,) was not equivalent to an allegation of such absolute ownership. Nor can the mere statement in the referee’s report, that the property was bought by Brocklebank for Waugh, on some sale thereof in March, 1861, by some sheriff", under some mortgage described only as being executed by Hull Howell jointly, be such an equivalent. The mortgage from Hull alone to Butterick and Simpson, dated in November, 1857, is found in such report to have been assigned in October, 1861, to the plaintiff", for the amount then due thereon, ($350,) and refiléd in November, 1861. That could not have occurred if a valid sale under such mortgage had taken place seven months previously. The mere suggestion of the referee, that the two mortgages were “pro- . bably ” the same, which is avowedly a mere conjecture, may, therefore, be disregarded as not material on the question of ownership.

Even, therefore, if the defect of the complaint in not alleging ownership in the plaintiff or in Waugh, could be repaired or disregarded, there would still remain an absence of proof of any divesting of the title of Hull, (the original owner,) to the chattels in question. Waugh’s leasing them to his firm; or permitting them to use them, after the former had been dispossessed and he resumed possession, could not amount to a transfer of title by him to the former; particularly as there is no evidence of the payment of any thing for such use, or of any other of the terms of such leasing. Undoubtedly whatever interest Waugh then had, passed to the plaintiff by the bill of sale in February, 1862, as security for the notes held by the latter, but there is no evidence of what the interest of the former was. As such interest, therefore, is neither alleged in the complaint, nor found by the referee, nor does it appear by any evidence before us, the plaintiff cannot be considered entitled to recover for an injury to it by the defendant’s acts.

The only injury sustained by the plaintiff, therefore, was the loss of the amount due on the mortgage from Hull to Butterick and Simpson, assigned to him. He never was in possession of the articles in question; nor is this an action for their possession; he can only, therefore, recover a» damages the amount so due, $350, and interest thereon from October, 1861, the time it was assigned to him.

I do not perceive how the defendant could create any lien for any definite storage on the articles in question, without some consent, express or implied, of the owners of, or parties interested in, them. (Buxton v. Baughan, 6 C. P. 674.) Such consent cannot be implied from the mere presence of the articles there, as they were placed there by a tenant while in lawful possession under a lease. He might have a right to notify such parties to remove them or he would put them off of the premises, and in case of default do so, (Roulsten v. McClelland, 2 E. D. Smith, 60;) but their presence there being either a matter of accident, or else a trespass, no contract could arise therefrom, unless by some other act of the parties interested. (Rivara v. Ghio, 3. E. D. Smith, 264.) If such a lien could be created, it would arise in every case of dispossession of a tenant who did not forthwith remove his property from the premises, and would virtually reproduce a right of distress for rent, under another name. Nor could such articles be retained as fixtures, being used for purposes of trade and manufacture. '

The plaintiff is therefore entitled to recover to the extent of the prejudice he has received by the conversion of the property in question by the defendant, and no more. The latter being still liable to the owner of the equity of redemption for his damages, if any, as to the residue of the value.

The judgment in this case must therefore be reversed and a new trial had, with costs to abide the event; unless the plaintiff .will consent to reduce the amount recovered to $350 and interest from October 9, 1861; and in such case no costs are given to either party on the appeal.