author: Lewis, J. :

text:
    Thomas H. Groves, Appellant, v. John L. Acker and Others, Respondents.

      Direction of a verdict — withdrawal of a request therefor, after its denial — specific signatures which bind an association, not the individuals.

    Where at the close of the trial of an action the plaintiff asks for the direction of a verdict in his favor, which is denied and an exception is taken, and the defendant then moves for the direction of a verdict in his favor, which, over the plaintiffs objection and exception, is granted, and the plaintiff thereupon asks leave to withdraw his motion for the direction of a verdict and to be permitted to go to the jury upon all the questions in the case, and does not ask that any specific questions of fact be submitted to the jury, the refusal of such request is not erroneous.
    Where each of the parties to an action respectively requests the direction of a verdict-in his favor, the questions of fact involved are thereby submitted to the consideration and decision of the court.
    Where an agreement is signed by the officers of an association in their individual names, with the addition of the name of the office held by each after his name, and the person with whom such agreement is made is fully aware of the character in which such officers assumed to act, the agreement is that of the association and not the individual agreement of its officers.
    Appeal by the plaintiff, Thomas H. Groves, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 20th day of September, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Monroe Circuit dismissing the plaintiffs complaint.

      David Hays, for the appellant.

      Jolm Desmond, for the respondents.
   Lewis, J. :

This action was brought to recover of the defendants moneys deposited by the plaintiff with the Brown Street and Jefferson Avenue Dime Permanent Savings and Loan Association, a domestic corporation located in the city of Rochester. The amount claimed in the complaint was upwards of $14,000, but the amount which the plaintiff, upon the trial, claimed to recover was the sum of $5,000.

At the close of the evidence plaintiff’s counsel asked for a direction of a verdict in his. client’s favor for the sum of $5,000. His motion was denied, and lie duly excepted. Defendants’ counsel then moved for tlie direction of a verdict for tlie defendants. This motion was granted, ■ and tlie plaintiff duly excepted. Plaintiff’s counsel thereupon asked leave to withdraw liis motion for a direction of a verdict, and to be permitted to go to the jury’upon all the questions in the case. IJis motion was denied. lie did not ask to have any specific questions of fact submitted to the jury. It was not, therefore, error to refuse his request. (Mayer v. Deem, 115 N. Y. 556.) The parties having requested the direction of a verdict in their favor respectively, the questions of fact were for the consideration and decision of the court.

It was established by the evidence that the plaintiff had on deposit in a bank in the city of Rochester a considerable sum of money which was drawing only four per cent interest. The defendants, with others, were directors of the loan association mentioned. The defendant Speiss being informed that the plaintiff had money in a bank and that it was drawing but four per cent interest, suggested to him that if he would loan some money to the association he would obtain a much larger rate of interest. He informed him that the association was paying to its subscribers over sixteen per cent annually upon its shares, and that it would be to his interest to withdraw his money from the bank and loan it to the association. By arrangement, the plaintiff met the directors of the association at a meeting held on the 3d day of January, 1888, and the plan of the business of the association was explained to the plaintiff by the directors.

The plaintiff concluded to loan $5,000 to the association, and thereupon, in the presence of the plaintiff, the following resolution was adopted by the board of directors: “On motion of John A. Spiess it was agreed to accept the loan of $5,000 from Thomas H. Groves at four per cent per annum until our next quarter. He shall, however, withdraw loan at any time in cash or association notes not to exceed three months, with interest. At end of present quarter, if loan is not withdrawn, dividends shall be allowed as on ordinary stock.”

Plaintiff had informed the directors that he might desire to withdraw the money for use if he should engage in business. He paid into the association $5,025 and was given a pass book such as is furnished subscribers to the shares of the association.

It appears from an entry in bis pass boob, dated on tlie day the money was advanced, that the plaintiff had subscribed for 500 shares of the stock of the association. He was credited with having paid the $5,000, and the further sum of twenty-five dollars, that being the entrance fee on 500 shares, according to the regulations of the association. The plaintiff having suggested, as stated, that he might desire to withdraw the money, there was written upon the last page of his pass book an agreement upon which he relies to sustain his cause of action. The agreement was signed by the defendants and delivered to the plaintiff, and is as follows :

“ We, the undersigned, officers of the Brown Street and Jefferson Avenue Dime Permanent Savings and Loan Association of Rochester, N. Y., hereby agree with Thomas H. Groves that we will pay him interest at the rate of four per cent per annum on $5,000.00 paid by him into the treasury of said association until the first day of March next, and also agree to pay him the cash, on withdrawal or a well-indorsed note for not over three months, with use.
“ RoChbstbr, January 3rd, 1888.
“JOHN L. ACKER, President.
“FRANK HORN, Vice-Pres.
“JOHN P. SMITH, Secretary.
“JOHN A. SPIESS, Treasurer^

It is the contention of the plaintiff that this contract was the individual obligation of the defendants; that they had no authority to, and did not intend to, and did not, in fact, execute it as a corporate obligation, and that, having called upon the society for his money and it not being paid, he was entitled to recover of the defendants personally under this agreement.

The $5,000 was allowed by the plaintiff to remain with the association, without notice of withdrawal, until the year 1893. He made other deposits with the association from time to time, aggregating $5,520. He was duly credited in his pass book with dividends on his shares amounting in all to $3,740.48. No distinction was made in the entries in the pass book between these various deposits.

At the close of the first quarter, March 1, 1888, the association paid to plaintiff $33.33. This was interest upon the $5,000 at the rate of four per cent per annum.

Letters from the plaintiff to the association were read in evidence which tended to show that he understood that his dealings were with the association and not with the defendants personally. The articles of association of the company provided that persons loaning money to the company might withdraw the same upon giving written notice of such intention. The plaintiff directed a notice to the secretary of the association on the 3d day of February, 1893, of his "desire to withdraw the sum of $10,000, giving as a reason that he was about to open a store. He stated in the notice as follows: “ My agreement with the association was that at any time I needed money, if the association did not have it, they would give me the association’s note for two (2) or three (3) months, with interest, so I could use them at once. It is written in the back of my pass book, as you will remember,” etc. At the time this notice was réceived, there were other applications for withdrawals on file.

The articles of association provided that applications for withdrawals of money should be numbered and paid in the order in which they were received.

The association neglected to respond at once to plaintiff’s call, and he commenced this action against the defendants.

The evidence fairly established that the plaintiff was aware when he loaned the money that the defendants were acting as the representatives of the association. There was no reason, so far as appears, why the defendants should assume any personal responsibility in the matter. They were directors and officers of the company, but they had no other interest in its affairs that was not com-in on to all of the shareholders. In signing the instrument the defendants affixed the title of their offices to their signatures. There was no occasion for their so doing if they were to become personally liable. The resolution consenting to take the money is quite significant. Reading the. resolution and the agreement together, it is quite apparent that the parties intended to provide that the plaintiff should be at liberty to withdraw his money at any time prior to the first of March following without the formality of giving a written notice, but if he permitted it to remain with the association, thereafter he was tobe subject to the rules and regulations of the association as to the manner of its withdrawal. The only reasonable inference to be drawn from the evidence is that the plaintiff in loaning bis money and in receiving tbe contract, understood that he was dealing with the association, and that the defendants in executing the contract, did so in their official capacity without intending to be liable personally. The power to borrow money was given to the association by the statute under which it was organized. It could also obtain money by issuing shares of stock to its members, and receiving dues thereon.

The following authorities sustain the construction given to this instrument by the trial court: Mott v. Hicks (1 Cow. 513); Babcock v. Beman (11 N. Y. 200); Bank of Genesee v. The Patchin Bank (13 id. 309); Same v. Same (19 id. 312); Casco N. Bank v. Clark et al. (139 id. 307).

The fact that the plaintiff was fully aware of the character in which the defendants assumed to act, distinguishes, we think, this case from the authorities to which we are referred by the plaintiff’s counsel.

The judgment appealed from should be affirmed.

Dwight, P. J., and Beadley, J., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    The Graves Elevator Company, Respondent, v. The Masonic Temple Association of Olean, N. Y., Defendant. Benjamin U. Taylor, Appellant.

      Code of Givil Procedure, § 452, applies to both legal and equitable actions — motion to be made a pw'ty defendant.

    Section 452 of tlie Code of Civil Procedure applies to legal as well as to equitable actions.

    If it be shown upon an application, made by a person to be permitted to come in as a party defendant and defend an action, that the applicant and the plaintiff are the only parties interested in the question to be litigated, the defendant having very little, if any, interest in the event of the action, an order denying such application should be.reversed upon appeal and the motion granted.
    Appeal by Benjamin U. Taylor from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk- of the county of Cattaraugus on the 21st day of June, 1894, denying tbe appellant’s application to be joined as a party defendant to tbe action.

      F. W. JTruse, for tbe appellant.

      A. J. Fastings, for tbe respondent.

       See ante, page 449.

   Lewis, J.:

In tbe year 1892 tbe defendant, Tbe Masonic Temple Association of Olean, entered into a contract witb one William D. Moore for tbe construction of a building in Olean. Moore’s contract included the furnishing and placing in tbe building of a passenger elevator, which the plaintiff, at tbe request of Moore, furnished and placed in the building. Moore sublet tbe construction of various parts ,of the work. After the elevator was in the building, Moore having-failed to pay bis sub-contractors, a number of them filed mechanics’ liens against the building for work and material which they had performed and furnished.

Benjamin IT. Taylor was one of the sub-contractors whd filed a lien. So did the plaintiff. The amount of its claim was stated to be $1,800. Afterwards plaintiff and other lienors joined in an action in the Supreme Court, making the Masonic Temple Association, Moore, Taylor and others parties defendant for the purpose of foreclosing and adjusting the rights of the parties under their various liens. The issues joined were referred to a referee for trial, and while said action was pending and the trial was proceeding an accounting took place between the parties to said action, including the plaintiff in this action, for the purpose of ascertaining the amount due and owing by the Masonic Temple Association to the contractor William D. Moore. The sum of $14,509.41 was found to be the amount due said contractor. This sum was sufficient to pay in full all the liens prior to Taylor’s and nearly sufficient to pay his claim, but nothing was left applicable to plaintiff’s claim, its lien being the last one filed. When it was ascertained that the liens prior to the plaintiff’s would consume the entire fund application was made to the referee in its behalf for leave to withdraw from the action, upon the ground that under its contract with Moore the elevator was to be its property until it was paid for. The application was granted and the action proceeded to judgment. By the terms and provisions of the judgment it was established and determined -that tliere was due from tbe defendant, tbe Masonic Temple Association, to Moore, tbe contractor, the sum-of $14,509.41, and it further provided that that sum should be deposited by the defendant in the Exchange National Bank of Olean to be paid by it upon the liens therein provided for,' but none of the said moneys were to be applicable by the terms of said judgment to the payment of the claim of the plaintiff' herein for the reasons before stated. The amount thus found due to Moore was deposited in said bank. The amount found duo by the referee from the contractor to Taylor was $7,615.43. The judgment provided that from the sum found duo Moore $1,800 should be retained and deposited in the said Exchange National Bank to be held by said bank until the question of the liability of the Masonic Association to pay the claim of the elevator company or the right of said elevator company to reclaim the said elevator should be finally determined by a court of competent jurisdiction; or until such questions were determined by an agreement of the parties interested, to wit, the parties to the action and the said Taylor, and that when such final determination should have been made, or such agreement concluded, if it was to the effect that the elevator was the property of the Masonic Temple Association and not the property of the Graves Elevator Company, that then the $1,800 should be paid over to Taylor, to be by him applied upon his lien. If, however, it should be determined or agreed that the elevator was the property of the plaintiff, then the $1,800 was to be paid to the Masonic Temple Association, in the event that the elevator company reclaimed said property, and if the elevator company did not reclaim the property and it should be determined or agreed that the elevator belonged to it, then the $1,800 was to be paid to the elevator company and the elevator in that event was to belong to the Masonic Temple Association even if it should be determined or agreed that the' elevator did at the time of making said referee’s report belong to the said elevator company. The Graves Elevator Company thereafter commenced this action against the Masonic Temple Association to recover the possession of the elevator, the value of which was stated in plaintiff’s affidavit to be the sum of $1,800. After the commencement of said action, and before the service of the complaint therein, the appellant, Taylor, made application to the court to be joined as a party defendant in said action, his claim being that lie bad an interest in tlie subject thereof. It appeared in Ms affidavit, in addition to the facts above stated, that wMle lie was furnishing the materials 'and doing the worlc upon the building the elevator was placed therein and made a part of it by the workmen of the elevator company, and that he thereafter continued to do work upon the building having in mind the fact that the building was sufficiently in progress of completion and that sufficient money would be due from the owner to the contractor to make him secure in doing the work and furnishing tlie materials, and that he relied upon the elevator as belonging to the owner of the building as part of his security. Ilis affidavit further stated that he took part in tlie accounting before the referee, but was only interested in seeing that the amount due the contractor was sufficient to cover his liens upon the building in addition to those prior thereto, and that had he known that the elevator was not a part of the building, or was claimed by the elevator company, some cf the sums which were allowed in tlie settlement and which would have increased the amount due to Moore, and also other sums which would have reduced the amount due on liens prior to his, would not have been allowed by him. From this, he claims, arises by way of estoppel a defense which is personal to himself. Taylor’s motion was denied and from the order denying the motion this appeal was taken.

It is apparent from tlie facts stated that Taylor has an interest in having it adjudicated that the elevator is a part of the building and belongs to the owner thereof, whereas the defendant has very little, if any, interest in the event of the action. If the plaintiff succeeds in establishing its title to the elevator, it will receive the $1,800 on deposit. It cannot with any propriety be contended, in view of the arrangement stated, that the elevator will be removed from the building. If the plaintiff fails in establishing its claim to be the owner of the elevator, the $1,800 will belong to and will be paid to Taylor. The appellant and the plaintiff are, therefore, the only parties interested in the question to be litigated.

It is the contention of the counsel for the respondent that, it being an action at law, the plaintiff cannot be compelled to bring in other parties than those it has chosen to make defendants, and he relies upon the case of Chapman v. Forbes (123 N. Y. 532) as sustaining bis contention. He claims that case holds that section 452 of the Code of Civil Procedure has reference only to suits in equity and not to actions at law. Since the granting of the order from which this appeal was taken, the case of Rosenberg v. Salomon et al., Impleaded, etc. (144 N. Y. 92), has been decided by the Court of Appeals. If the case of Chapman v. Forbes (supra) can be construed as sustaining the contention of the respondent’s counsel, the doctrine of that case must, we think, be held to have been modified and limited by the Rosenberg case.

The latter case was an action of replevin brought against the sheriff of Kings county to recover the possession of certain chattels levied on by him under execution against Salomon and Wolf. Salomon and Wolf were not made parties, and they applied for leave to intervene as parties defendant. Their motion was granted ; the order was affirmed at General Term and again in the Court of Appeals. The court held that section 452 of the Code, with its new and added provision, applies to legal as well as equity actions. The appellant made a case entitling him to be made a party defendant.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted.

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

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


author: BRADLEY, J. :

text:
    Gilbert Gerould, Appellant, v. David Cronk, Respondent.

      Misjoinder of causes of action — objection, how raised in a court of record — how raised in a Justices Court — joinder of a cause of action in tort and one on contract —form of execution —pleadings in Justices’ Courts.

    In a court oí record, the misjoinder of causes of action appearing on the face of a complaint is waived, unless the objection is taken by demurrer on that ground.
    In Justices’ Courts, the misjoinder of causes of action is not strictly a ground of demurrer as such, but it is a ground of objection to be taken in due time, and if not so taken, the objection is waived. It constitutes no defense on the merits and is not available to the defendant upon a motion for a nonsuit.
    The objection to the misjoinder of alleged causes of action in a Justice’s Court should be taken in such a manner as to require a ruling by the justice upon it before proceeding with the trial of the action.

      The nature of the execution to which a plaintiff may he entitled is dependent upon the character of his complaint, and when his complaint embraces alleged causes of action, both in tort and on contract, the plaintiff, in case of his recovery, is denied the benefit of an execution against the person of the defendant.
    Liberality in pleading is extended to Justices’ Courts, and objections must be distinctly taken to support charges of error made upon the review of a decision.
    Appeal by tbe plaintiff, Gilbert Gerould, from a judgment of tbe County Court of Steuben county in favor of tbe defendant, entered in tbe office of tbe clerk of tbe county of Steuben on tbe 24th day of August, 1893, upon tbe decision of tbe court reversing tbe judgment of a justice of tbe peace of tbe town of Cobocton, county of Steuben.

      Fary B. Beecher, for tbe appellant.

      I A. Seamans, for tbe respondent.
   BRADLEY, J. :

There was a misjoinder of causes of action in tbe complaint. This tbe defendant alleged with other matters in bis answer, and at the close of tbe plaintiff’s evidence made it one of tbe grounds of motion for nonsuit. Tbe motion was denied by tbe justice, and judgment was afterwards rendered upon tbe verdict of the jury for tbe plaintiff.

In Justices’ Courts tbe misjoinder of causes of action is not a ground for demurrer strictly as such. (Code Civ. Proc. § 2939; Lapham v. Rice, 63 Barb. 485.) But it is a matter for objection to be taken in due time, and if not so taken is waived. (Whitney v. Crim, 1 Hill, 61; Dunham v. Simmons, 3 id.. 609; Willard v. Bridge, 4 Barb. 361.)

And when bis complaint embraces alleged causes of action both in tort and on contract, tbe plaintiff, in case of bis recovery, is denied tbe benefit of execution against tbe person of tbe defendant. (Code Civ. Proc. § 2931.)

This was the rule at common law. And tbe nature of tbe execution to which a plaintiff may be entitled is dependent upon tbe character of bis complaint.

In tbe present case tbe plaintiff gave evidence to tbe effect that tbe defendant’s sheep and horses entered into tbe plaintiff’s premises and injured and partially destroyed bis crops of barley and peas. The plaintiff testified, that there were no unsettled matters between him and the defendant other than the damages to his crops and to his plow. The matter of the plow, as he testified, was that he lent a plow to the defendant, who promised to return it in good order and to furnish a new point for it; that he failed to do so, and that the repair of the plow cost twenty-five cents and the price of a new point was sixty cents, thus making only eighty-five cents as damages for the alleged breach of contract.

The misjoinder of causes of action is not.a defense in the sense applicable to that term, and, therefore, is not the subject of allegation in the answer.

The justice may not necessarily be advised of the contents of the pleadings when they are in writing and filed with him unless his attention is for some purpose particularly called to them. So far as appears the question of misjoinder of causes of action in the complaint was not raised by any suggestion, objection or application made to the justice or his court until after the close of the plaintiff’s evidence, and thqa by motion for nonsuit on that and other grounds.

The defendant could properly in the outset have moved the justice to direct -the plaintiff to elect on which alleged cause of action he would proceed to trial, or he could have specifically raised the question by objection in such manner as to call upon the justice to rule upon it. Then his refusal to require the plaintiff to elect or the overruling of the objection would be available error.

In a court of record misjoinder of causes of action appearing on the face of the complaint is waived unless the objection is taken by demurrer on that ground. (Code Civ. Proc. §§ 488, 499.) And the plaintiff, upon or without the determination of the issue of law by the court, may amend his complaint.

In analogy to that practice and upon that theory the objection to misjoinder of alleged causes of action in a complaint in Justice’s Court should be taken in such manner as to have a ruling of the justice upon it before proceeding to trial of the action.

This was substantially the practice applicable to Justices’ Courts before the Code. In Dunham v. Simmons (3 Hill, 610) it was said that “The misjoinder should have been objected to by demurrer,” and the same was held in Willard v. Bridge (4 Barb. 361, 365); Dean v. Gridley (10 Wend. 254).

For obvious reasons liberality in pleading is extended to Justices’ Courts and objections must be distinctly taken to support the charge of error on review.

As the defendant did not in the outset and before proceeding to the trial by any objection call upon the. justice to rule upon the question of misjoinder of causes of action alleged in the complaint he must be deemed to have waived such objection. The objection is one to be raised preliminarily to the trial. It constituted no defense on the merits and was not available to the defendant upon motion for nonsuit.

A careful examination of the evidence leads to the conclusion that the verdict of the jury was permitted by it, and that there was no error in the reception and rejection of evidence on the trial.

The judgment of the County Court should be reversed and that of the justice affirmed.

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

Judgment of the County Court reversed and that of the justice affirmed.


author: Dwig-ht, P. J.:

text:
    Simon J. Weaver and Others, Respondents, v. Henry H. Brydges, Appellant.

      Supplemental proceedings — adjournment of the examination to a different place — appeal from an order punishing thejudgment debtor for contempt.

    Under the provisions of subdivision 2 of section 2433 of the Code of Civil Procedure and of section 1342 thereof, an appeal from an order, made in proceedings supplementary to execution issued upon a judgment, punishing the judgment debtor for contempt, where the execution was issued out of a County Court, may be taken to the General Term of the Supreme Court, and no motion to vacate or modify the order, addressed either to the judge who made it or to the court out of which the execution was issued, is, under such circumstances, necessary.
    An adjournment of the examination of a judgment debtor, by a referee appoiuteu in supplementaiy proceedings, to such a convenient and proper place as the referee may appoint, is within the discretion given the referee by section 2444 of the Code of Civil Procedure. It is only necessary that the change of place, of the hearing made by the referee should be made for some good cause and be reasonable in all respects, and if the judgment debtor is a resident of the State the place should be within the county wherein he lives.

      Appeal by the defendant, Henry H. Brydges, from an order of the County Court of Monroe county, entered in tbe office of the clerk of the county of Monroe on the 14th day of November, 1894, adjudging the defendant guilty of contempt of court and imposing a fine upon him for his misconduct in neglecting to obey an order of a referee in proceedings supplementary to execution.

      T. L. KuTbwrt, for the appellant.

      E. L. Adanris, for the respondents.
   Dwig-ht, P. J.:

The order was made by a judge out of court in the course of proceedings supplementary to an execution issued out of the County Court of Monroe county, on a judgment recovered in the Municipal Court of the city of Rochester, of which a transcript had been filed in the office of the county clerk. The order adjudged the defendant in contempt for neglecting and refusing to appear as directed by the referee pursuant to an adjournment of the proceedings for his examination as a judgment debtor. The order for his examination, which was made by the same judge, required him to attend and be examined concerning his property before the referee, at his office in Fairport, on a day and at an hour named, “ and for that purpose to appear before the said referee from time to time as he shall direct and appoint.” Fairport is in Monroe county, about ten miles by rail from Rochester, and is the home of the judgment debtor and his attorney, as well as of the referee. The defendant failed to appear at the time and place named in the order, but excuse was made for him and an adjournment was taken to a subsequent day and hour, at the same place. On the adjourned day the defendant appeared and his examination was begun, when it was disclosed that both the referee and the attorney for the defendant had an engagement in court at Rochester at eleven o’clock of the same day, and an adjournment of the examination must be taken for their accommodation; whereupon the attorney for the judgment creditors, who was for the second time in attendance for the purpose of the examination at Fairport, requested that such adjournment might be taken to his office in Rochestei, at two o’clock of that day; and it was so ordered by the referee, who directed the judgment debtor to appear accordingly. His attorney objected to tbe adjournment on tbe ground, as stated by tbe referee, that tbe referee bad no power to require the judgment debtor to attend at any other place than that named in the order of the judge. The judgment debtor failed to attend before tbe referee pursuant to tbe last adjournment, and these facts being made to appear to tbe special county judge, on tbe return of an order to show cause, the order was made from which this appeal is taken.

The court is asked to dismiss the appeal on the ground that under section 2433 of the Code of Civil Procedure the only mode of review, in the first instance, of an order made in the course of proceedings of this character, is by motion to vacate or modify the order, addressed either to the judge who made it or to the court out of which the execution was issued. And such is the general provision of the statute as contained in the 1st subdivision of the section cited. But the 2d subdivision makes an exception of the precise case in hand, viz., “ where the execution was issued out of a County Court,” in which case it is provided that an appeal from such an order may be taken in like manner as if the order was made in an action brought in the same court; ” and by sections 1340 and 1342 it is provided that an appeal may be taken to the Supreme Court from an order affecting a substantial right, made by the court or a judge, in an action brought in a County Court. The appeal in this case was, therefore, properly taken, but we think there was no good ground for the appeal.

The statute relating to proceedings supplementary to execution provides for an order requiring the judgment debtor to attend and be examined concerning his property, either before the judge or the referee at a time and place specified therein. (Code Civ. Proc. § 2442.) Also that the judge or referee may adjourn the examination from time to time as he thinks proper. (Id. § 2444.) This language cannot be construed to confine the judge or referee, in the exercise of his discretion, to an adjournment to the same place named in the original order. There might be imperative reasons for a change of place for the examination, and the construction of the statute contended for by the appellant would necessitate an order de novo whenever a change of the place of examination was found to be necessary. An adjournment of the examination to sucb convenient and proper place as the referee may appoint must be regarded as within the discretion given him by the statute, to adjourn from time to time “ as he thinks proper.” Moreover, the statute has taken pains to provide that “ if the judgment debtor * * * is * * a resident of the State, * * * he cannot be compelled to attend, pursuant to the order, or to miy adjournment, at a place without the county ” where he lives. The provision plainly contemplates that he may be required to attend, pursuant to an adjournment, at some place within the county other than that named in the order.

It is only necessary, we think, that the change of place should be for some good cause and reasonable in all respects. And such it clearly seems to have been in this case. Indeed, the propriety of the change is not seriously questioned, but only the power of the referee to make it.

The order appealed from should be affirmed.

Lewis and Bradley, JJ., concurred.

Order affirmed, with ten dollars .costs and disbursements.


author: Dwight, P. J.:

text:
    The People of the State of New York v. The Flour City Life Association. Frederick W. Smith, as Receiver of The Flour City Life Association, Appellant; Lydia C. Post, as Executrix, etc., of Peter E. Post, Deceased, and Others, Respondents.

      Life association — when am, order for the payment of a claim amounts to an assignment pro tanto — receiver directed to pay it.

    Where a person holding a claim against a life association has received from the proper officers of the association an order on the treasurer thereof for the payment of his claim, 'which has been duly audited and approved by the executive committee of the association, and an order has been drawn for its payment and delivered, in accordance with the uniform practice of the association for the payment of claims of the character in question, established and allowed against its funds, and payable unconditionally out of a particular fund, such order is an assignment pro tanto of the fund therein named, and the receiver of the association, appointed subsequent to the delivery of such order, will be directed to pay the amount thereof out of such particular fund without waiting for the distribution of the assets of the association.

      Appeal by Frederick W. Smith, as receiver of The Flour City Life Association, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 8th day of October, 1894, directing the receiver of The Flour City Life Association to make certain payments to claimants out of the funds in his hands.

      Geo. F. Yeoman, for the appellant.

      Geo. D. Williams, for the respondents Post, executrix, and others.

      Irving Paine, for the respondents O’Connor and others.
   Dwight, P. J.:

The appellant was appointed at first temporary and afterwards permanent receiver of the defendant in an action for the dissolution of the corporation. He found among the assets of the association the sum of $2,435.13, belonging to the “Mortuary fund in Class B,” on deposit in the Central National Bank of Rochester. It had been deposited by the treasurer in obedience to a by-law of the association, as follows: “ Eighty (80) per cent of all net assessments for mortuary purposes shall be deposited with such bank or trust company as may be designated by the directors, to the credit of the mortuary and benefit fund of the Flour City Life Association, from which claims shall be paid.”

Before the appointment of the receiver each of the petitioners, respondents here, had received from the proper officers of the association an order on the treasurer for the payment of a claim which had been duly audited and approved by the executive committee, and which — allowing for difference of name and amount —■ was in terms as follows:

\ “ Office of, &c., &c., i
“Bochester, N. Y., July 25i7¿, 1891. j
“ To J. T. Baldwin, Treasurer :
“ Pay to the order of Lydia C. Post, as executrix, two hundred three dollars out of any sum belonging to the mortuary fund in class B, and this shall be your voucher.
“ $203.16. (Signed)
“ 'WAYLAND TEASE, 1st. Vice-President.
“RALPH MABDEN, Secretary.”

The several respondents proceeded by petition in the action in whicli the receiver was appointed, to obtain an order directing him to pay the several claims so allowed and certified, without waiting for administration of the receivership and a general distribution of the assets on the ground that the several orders mentioned constituted, in effect, an equitable assignment, pro tanto, of the fund in question, and that the portion of the fund so assigned never came to the hands of the receiver as assets of the association, but belonged to the several claimants at the time of the appointment of the receiver.

The holding at Special Term was in accordance with this contention of the petitioners, and was, as we think, entirely correct. No question whatever is made of the justness and validity of the several claims, nor that they were duly audited and allowed by the proper officers of the association, nor that the several orders for their payment which were drawn upon the treasurer and delivered to the several claimants, were so drawn and delivered in accordance with the uniform practice of the association in the payment of claims, of the character of those in question, established and allowed against its funds. Upon their face they are drawn payable unconditionally out of a particular fund, and they seem to meet all the requirements of the rule exemplified in the late cases of Brill v. Tuttle (81 N. Y. 451) and Lauer v. Dunn (52 Hun, 194; 115 N. Y. 405), to make them so many assignments, pro tanto, of the fund named in them.

The contention to the contrary is based upon a by-law of the association as follows:

Every claim, providing it shall have been first approved by the executive committee, shall be paid by means of an order drawn upon the depositary of mortuary and benefit fund, signed by the president or vice-president, treasurer and secretary, and made payable to the order of the beneficiary, if living,” etc. The objection is that the orders were not drawn by the officers mentioned in the by-law, nor upon the depositary of the fund. But this objection fails to discriminate, between the custodian of the fund and the depositary of the fund, and assumes, contrary, as we think, to the principle involved, that the order which shall operate as an assignment of the fund must be drawn upon the latter. The treasurer is, no doubt, in a proper and important sense, tlie custodian of the funds of the association. They came originally to his hands, and though for their better security he is required to deposit them, he must yet keep his account with them, charging them with moneys received by him and deposited to their credit, and crediting them with moneys drawn from them for the payment of claims to which they must respond. Such being substantially the manner in which the accounts of the association were kept, as by all analogy and precedent we must assume it to be, it was certainly very proper, if not absolutely necessary, that the first step in the payment of any claim which had been duly allowed, should be an order such as those in question in this case, drawn by the proper officers upon the treasurer of the association, payable out of the appropriate fund, and though such an order was required to be supplemented by a check, signed by the treasurer, with other officers, upon the bank where the money was deposited, for the actual payment of the claim, yet it seems to us that it was the order on the treasurer, rather than the check on the bank which, within the principle relied upon here, constituted the equitable assignment of the fund.

The affidavit of the receiver, himself, shows that it was the pram tice of the association to give such an order on the treasurer as the first step in the payment of claims which had been allowed, and that upon the presentation of that order to the treasurer, duly indorsed, he paid it by delivering to the payee or indorsee the check on the bank prescribed by the by-law last quoted above.

We do not find upon the proofs made that the case of the claimant Cullinan was, as suggested in the brief of counsel for the appellant, an exception to the rule which embraces all the other claims in question. In respect to all of them we think the order at Special Term was correct and should be affirmed.

Lewis and Beadley, JJ., concurred.

So ordered, with ten dollars costs and disbursements of the appeal to each of the groups of respondents appearing by separate attorneys, payable by the receiver out of the fund.


text:
    Mary Rich, Respondent, v. John Doyenn, Appellant.

      Landlord and tenant —a second letting during the term of a lease, the lessee under which abandoned the'premises as untenantable — liability for rent.

    Where a lessee .of premises removed therefrom, claiming that the premises were in an untenantable condition, the fact that the lessor, five months after such removal, leased such premises to another person at a reduced rate does not estop him from recovering from the original lessee the difference between the amount of rent due and reserved by the lease and the amount received by the lessor as rent of the premises subsequent to the removal of such lessee and during the term reserved by the lease.
    Appeal by the defendant, John Doyenn, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 12th day of May, 1892, upon the report of a referee.

      O. G. Be Witt and Henry W. Brush, for the appellant.

      E. A. Hayes, for the respondent.
   Lewis, J.:

This action was brought against the defendant to recover rent alleged to be due the plaintiff for the use of premises consisting of the first floor and two rooms upon the second floor of a building on Seneca street in the city of Buffalo, under a written lease executed by the parties. The term was for three years commencing on the 1st day of May, 1888. The rent secured by the lease was $300 a year, payable in monthly installments of $25 in advance. The defendant took possession of the' leased premises and continued in occupation thereof until the 15th day of October, 1889, when he vacated them for the alleged reason that they had through the fault and negligence of the plaintiff become untenantable, owing to defective sewerage and plumbing which allowed filth and water to accumulate in-the cellar of the building. The defendant paid the rent as it came due up to and including the month of October, 1889, and thereafter neglected to pay rent. The premises remained vacant for five months after defendant left them. The plaintiff then leased them to another tenant for eighteen dollars a month. This action was commenced on the 19th day of June, 1890.

There was nothing in the lease requiring the plaintiff to make repairs upon the premises. It contained the ordinary clause requiring the tenant to keep the premises in good repair.

The defense interposed and relied upon by the defendant was, first, that the premises had become untenantable; and, second, that the plaintiff consented to cancel the lease by accepting the key of the house and taking possession of the premises. There was evidence tending to show that when the defendant .took possession of the property there was water in the cellar which was pumped out from time to time. There was no sewer in the street in front of the premises, and none in the cellar at the time of the leasing. After-wards, and in the spring of 1889, a sewer was constructed in the street in front of the premises, which was connected with the cellar of the house by a sewer in a proper manner so as to drain the water from the cellar. A stench trap was put into the sewer in the cellar which prevented the sewer gas from entering the cellar. The evidence upon this question was conflicting, as was the evidence as to whether the plaintiff accepted the key of the hoirse and consented to cancel the lease. The referee, upon sufficient evidence, found for the plaintiff upon these questions.

The lease provided that the plaintiff should construct a barn for the use of the defendant. The plaintiff failed to fully perform her agreement in that respect, and the referee allowed the defendant a counterclaim for twenty-five dollars on account of work and materials which he furnished to complete the barn.

Reletting the premises, under the circumstances disclosed, did not estop the plaintiff from claiming of the defendant the seven dollars a month difference between the amount defendant had agreed to pay and the eighteen dollars a month paid by the new tenant. Reletting the premises did not give the defendant any cause for complaint, for he was thereby benefited to the extent of eighteen dollars a month during the remainder of the term of the lease. (Doolittle v. Selkirk, 28 N. Y. Supp. 43; Winant v. Hines, 6 N. Y. St. Repr. 261; Joslin v. McLean, 99 Mich. 480.)

The referee inadvertently, presumably, included in the amount which he found to be due the plaintiff seven dollars a month for ten months after the commencement of the action, making in all seventy dollars, to which he added interest upon the sums, respectively, as they fell due. This was improperly included in liis report and in the judgment.

The judgment should be reversed and a new trial granted, with costs to abide the event, unless the plaintiff within twenty days give to the defendant a written stipulation consenting to reduce the judgment to the extent mentioned; in case stipulation be so given the judgment, as so modified, should be affirmed, but without costs of this appeal to either party.

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

Judgment reversed and a new trial granted, with costs to abide the event, unless the plaintiff within twenty days stipulates to reduce the judgment as indicated in the opinion, and in that event judgment so modified affirmed, without costs of this appeal to either party.


author: Beadley, J.:

text:
    In the Matter of the Accounting and Removal of George Litzenberger, Respondent, as Trustee, etc., of John Litzenberger, Deceased; Mary Jane Stahl and Another, Appellants.

      Devastavit — liability of executors and trustees for the acts of their eo-executors and trustees — interest paid as such, not applied on the principal.

    No liability is created against one of two executors, for passively permitting the other executor to collect or receive the funds and assets of the trust estate, although such funds are wasted by him, unless there was reason to apprehend such consequence and no measures were taken to prevent it.
    It is otherwise when the trust funds are by the act of one executor placed in the hands of his co-executor or co-trustee and where without such action the latter would not have had control of them; in such case he may be responsible for the devastavit of the latter as to the funds so handed over to him.
    In a proceeding instituted by the beneficiaries of the income of a Irust fund to charge the surviving trustee with the amount of such fund, it appeared that the will of the testator, by which the fund was created, named his two sons, George and Levi, as executors and trustees, both of whom duly qualified as such, and further provided that the residuary estate should be divided equally among his children, but the shares of his two daughters should be, by the executors, invested and the interest paid to them annually, and at their deaths the remainder was to go to their children. The will also provided that his son Levi, if he so elected, might purchase a certain farm of which the testator died seized, at the price of 86,600, which farm was conveyed to him by the executors, subsequent to the probate of the will.

      Upon the final settlement of the estate of the testator the amount of the residuary-estate belonging to each of the children was determined, and the executors were charged with and directed to invest such sum for each of the daughters, and to pay the income arising from the same to each daughter- annually during the life of each. - The trustee Levi until his death paid to the beneficiaries of the trust fund the interest upon the fund in accordance with the decree of final settlement. It appeared that the entire trust estate was represented in the purchase price of the farm sold to the trustee Levi, and not paid for by him, and that the trustees neglected to take a mortgage upon the farm in question to secure the purchase price of the same, and that subsequently a mortgage was executed upon said |arm by Levi, who died insolvent, under the foreclosure of which it was sold, and the surplus arising on such sale, which was insufficient to represent the trust fund, was paid over to and held for the trust by George, the surviving trustee.

      Held, that the fact that George, the surviving trustee, did not suppose that his grantee Levi, his co-trustee, would impair the trust fund by a mortgage, or the fact that he did not learn until after his brother’s death that he had, would not exonerate him from the charge of negligence in giving Levi the opportunity to do so;
    That George was guilty of culpable negligence, and that by reason of such negligence he was responsible for the deficit in the trust fund occasioned thereby.
    Where payments are made to the beneficiary of a trust, and are received by helas interest upon a trust fund, they will not be applied in reduction of the principal of the trust fund, which by reason of the misfeasance of the trustee was impaired, and consequently did not produce the amount of interest thus paid.
    Appeal by the petitioners, Mary Jane Stahl and another, from a decree of the Surrogate’s Court of the county of Seneca, entered in the Seneca County Surrogate’s Court on the 26th day of March, 1894, judicially settling and allowing the account of George Litzenberger as trustee, etc., of John Litzenberger, deceased, as filed and adjusted, and removing the said trustee.

      Hammond & Hammond, for the petitioners, appellants.

      G. ds W. M. Wilooxen, for the trustee, respondent.
   Beadley, J.:

This proceeding was instituted on the petition of the appellants, who are beneficiaries of the income of a trust fund pursuant to the will of the decedent, and they seek to charge the surviving trustee with the amount of such fund.

The testator died in April, 1882. By Lis will, which was admitted to probate, he named his sons George and Levi Litzenberger as executors and trustees. -Letters were issued to them and they entered upon the execution of their trust. Amongst other things the will provided that his residuary estate should be equally divided among his children; that the shares of his two daughters, Sarah Ann and Mary Jane (the petitioners), should, by the executors, be invested, the interest paid to them annually, and at their death the remainder go to their children; and that his son Levi, if he so elected, should become the purchaser of a certain farm (of which the testator died seized) at the price of $6,600, to be conveyed to him by the executors. In April, 1884, the farm was conveyed by George Litzenberger, as executor, to Levi.

By the decree of the Surrogate’s Court, made on an accounting of the executors in April, 1884, the amount of the residuary estate for each of the children then was $1,995.26, and the executors were charged with and directed to invest such sum for each of those daughters, and pay the income of it to her annually during her life. A like sum as the share of Levi was taken as part of the purchase money of the farm so conveyed to him. And until his death, in 1890, he paid to the petitioners interest upon the funds which, by the decree of 1884, the executors were directed to invest for them.

In March, 1885, Levi made a mortgage upon the farm to one Willers, to secure the payment of $2,316.66, which remained unpaid at the time of his death. Afterwards George Litzenberger individually took an assignment of the mortgage, foreclosed it by action, and the sale resulted in a surplus of $2,245.65 which, less $22.46 treasurer’s fees, came into his hands as surviving trustee. That sum, a mortgage of $800 and $248.25 interest received by him, constitutes the trust fund for which he accounts, and from this he deducts $426 costs in an action brought- by him against the personal representatives, widow and children of Levi Litzenberger, who died insolvent, to recover the amount of the trust fund in the unpaid purchase money of the farm, and he deducted the amount paid by him to the petitioners after the death of Levi, thus reducing the trust fund for both of them in his hands to $1,599.84. This is the amount for which he was charged by the decree of the Surrogate’s Court, and he was directed to pay to his successor that amount, less $66.01, his commissions. The payments made by the surviving trustee to the petitioners, and which were applied in reduction of the fund in his hands, were annually made in amounts equal to the interest upon the trust funds after the death of Levi and up to April, 1893.

The questions presented are: (1) "Was the surviving trustee entitled to credit for the deficiency so far as it may be attributable to the consequences of the mortgage made by Levi on the farm ? (2) "Was he entitled to have allowed to him in reduction of the principal sum of the fund the amount of the payments so made by him to the petitioners annually?

Both of the trustees were, by the decree of April, 1884, directed to make-the investment, and such was their duty under the will. No investment was made. The fund was treated as embraced within the consideration for the conveyance of - the farm to Levi. For this he was personally liable. And, as evidence that the fund was in his hands, he, in March, 1885, delivered to his co-trustee the following memorandum:

“ This is to certify that I have in my hands the balance of the trust funds belonging to Mary Jane Stahl and Sarah A. Deal from the estate of John Litzenberger, late of Yarick, deceased.
“Dated March 28, 1885. LEVI LITZENBERGER.”

This’ evidently was not the investment contemplated by the testator. Nor was the purchase money of the farm secured as it usually is when real property is sold on credit. If the sale had been made by the executors to any other person, and. collection of the purchase money had been defeated wholly or partially by an incumbrance created by him upon the property, it would seem clear that the executors would have been responsible for their failure to take security. But the case hei’e was rendered somewhat different by the fact that the purchaser was one of the executors and trustees, and had by the will been given the option to make the purchase. But he could not accomplish it without the conveyance of the other executor. It was by the act of the latter that the title was vested in him. The trust fund in question existed only in the farm, and never was otherwise in the hands of Levi'Litzenberger, and that was placed there by the conveyance made by the respondent.

No liability arises against one of two executors for passively permitting tlie other to collect or receive the funds andj assets of the trust estate, although they are wasted by him, unless he has reason to apprehend such consequence and takes no measures to prevent it. (Ormiston v. Olcott, 84 N. Y. 339; Wilmerdingy. McKesson, 103 id. 329; Cocks v. Haviland, 124 id. 426.) It is otherwise when the trust funds are by his act placed in the hands of his co-executor or trustee, and without which he would not have had them. Then he may be responsible for the devastavit of the latter as to the funds so handed over to him. (Croft v. Williams, 88 N. Y. 384; Bruen v. Gillet, 115 id. 10.)

It was the duty of the respondent as well as of Levi to see to it that the trust fund which was to furnish the income for the petitioners was invested so as to render the purpose of the testator effectual. This trust was to be continued during the lives of the beneficiaries of the income, and that might embrace a long period of time. The respondent, being advised of this, conveyed the property to Levi, and relied wholly upon his personal responsibility and ability for the time the trust might continue to pay the interest upon the fund and finally to pay the principal sum of it to the children of the petitioners. He knew that there was no investment of it as contemplated by the testator, and, therefore, that the trust in that respect was not duly executed. It would have been only ordinary prudence to have secured the purchase money by mortgage on the farm, and thus an investment of the trust fund would have been created. It is difficult to see why he should not be responsible for his neglect to thus secure the fund, if there is any significance in the duty assumed by a trustee who undertakes the execution of a trust. The fact that he did not suppose that his grantee would impair the fund by mortgage, or that he did not until after his death learn that he had, does not exonerate him from the charge of negligence in giving him the opportunity to do it. This, under the circumstances, was nothing less than culpable negligence on his part, and by reason of it he should be held responsible for the deficit so occasioned in the trust fund. (Earle v. Earle, 93 N. Y. 104.) It is very likely that the application of that proposition to the accounting of the respondent may remove the deficit from the trust funds of the petitioners.

However that may be, no .reason appears to justify the reduction •of the principal of the trust funds by application of the payments made to the appellants by the respondent annually as of the interest upon the funds. The recipients understood the payments to be of interest, and received them as such, and the surviving trustee was •so advised when he made them. As the terms of the will are represented by the record the petitioners were entitled to none of the principal sums of the trust. The payments so made to them by the respondent were not applicable to the reduction of the principal, •and should not have been so applied.

Nor should the costs in his action against the personal representatives of Levi and others be applied in reduction of the fund in question to the prejudice of the petitioners. They were not parties to the action. Nothing was realized from the judgment other than the surplus money before mentioned, which had been deposited with the county treasurer.

For these reasons the decree of the Surrogate’s Court settling the accounts of the respondent as surviving trustee should be reversed and a new accounting be had by him in that court, with costs to the appellants.

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

Decree reversed, with costs of this appeal, and the proceedings remitted to the Surrogate’s Court of Seneca county for further accounting by the surviving trustee.


author: Ward, J.:

text:
    Charles D. Cartwright, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company and Another, Appellants.

      Bailroad company — transportation of perishable pi'operty— repeal of section 36 of chapter 140 of 1850 by chapter 565 of 1890.
    A railroad company receiving perishable property for transportation is bound to forward it immediately to its destination. This is its obligation at common law, and the repeal of section 36 of chapter 140 of the Laws of 1850 by chapter 565 of the Laws of 1890, does not affect the common-law obligation of railroad companies in this respect.
    Appeal by the defendants, The Rome, Watertown and Ogdensburg Railroad Company and another, from a judgment of the County Court of Monroe county in favor of tlie plaintiff, entered in the office of the clerk of the county of Monroe on the 4th day of September, 1894, upon the decision of the court affirming a judgment of a justice of the peace of the town of Webster, Monroe county.

      George H. Walher, for the appellants.

      Hugh McKay, for the respondent.
   Ward, J.:

The trial was had in a Justice’s Court of Monroe county on the 20th of July, 1893, before the justice without a jury. Judgment was rendered against the defendants, now appellants, for eighty-four dollars and two cents.

The complaint alleged that on the 13th of October, 1892, the defendants received from the Buffalo and Pittsburg Railway Company for the plaintiff 114 sacks of milkweed pods of the value of eighty-five dollars and fifty cents, property of the plaintiff, which for a reasonable compensation to be paid to them they agreed to carry and deliver to Webster, N. Y., within a reasonable time after the receipt. That the defendants had failed to so deliver, and had so negligently and carelessly treated the property that it had become decayed and worthless as well as the sacks containing the same, to the plaintiff’s damage, etc. All the allegations of the complaint were denied by the defendants except the fact of their incorporation.

There was evidence before the justice tending to establish these facts: That the plaintiff resided at Webster, N. Y., which is upon a line of the defendants’ road, and was engaged in the manufacture of milkweed balls and artificial flowers from milkweed pods; that on the 12th of October, 1892, he caused to be delivered to the Buffalo, Rochester and Pittsburg Railway Company, at their Pearl Creek station, and at a distance of about fifty miles from Charlotte, seveiity-five sacks of milkweed pods, containing three bushels in a sack, for which he took receipts of the company for shipment to Webster, N. Y., over their line to Charlotte, and thence by the defendants’ road to Webster.

The freight was in good order when delivered to this company, ■and on account of its being perishable the plaintiff was charged with first-class freight, being an increase over ordinary freight not perishable. Forty of these sacks were shipped in one car to Charlotte, and thirty-five in another. The two cars reached Charlotte on the fourteenth of October, at three p. m., having been shipped on the thirteenth. The cars were placed upon the siding where deliveries are made from this Buffalo, Rochester and Pittsburg railroad to the defendants, the defendants connecting their road at that place with the Buffalo, Rochester and Pittsburg. The conductors having charge of these cars immediately reported on the fourteenth to the proper officer of the defendants at Charlotte, and delivered what is called a “through way bill” of the freight of each car from Pearl Creek, N. Y., to Webster, N. Y., stating the time of shipment from Pearl Creek, the time of arrival at Charlotte, the name of consignee and point of destination, the weight of the article, the rate of freight, which was first class, and described the articles as “ 35 sks. milkweed pods — O. R.,” and number of sacks, and gave the division of earnings between the Buffalo, Rochester and Pittsburg Railway Company and the defendants for carrying this freight, which was equal.

Without removing the freight from the cars the defendants directed an employee, who was a car inspector, to examine these cars, which he did, and pronounced them in need of repairs, and they were ordered for repairs, which, under the arrangement between the two companies, was to be done by the Buffalo, Rochester and Pittsburg Railway Company. This it took from the fourteenth of October to the nineteenth of October to accomplish, and then the defendants passed those cars with the freight over their line, about eleven miles, to Webster, where they were delivered to the plaintiff on the twentieth of October. The pods and the sacks in which they were contained were then foipid rotten and valueless. The plaintiff paid the freight, twelve dollars, and recovered that with the value of the pods in good order.

Upon appeal the justice’s judgment was sustained by the County Court, and the defendants again appealed, and are here with two objections : First. That the destruction of the freight was not due to the defendants’ negligence, but the delay was caused by the action of the initial company, the receiving company not being liable therefor. Second, that the proof does not disclose that the freight decayed while in the possession of the defendants. The appeal, therefore, is purely upon questions of fact, which has rendered a somewhat extended statement of the facts and evidence necessary.

The Justice’s Court found as a fact that this loss was due to the negligence of the defendants, and if tlie evidence or the inferences therefrom tend to support the conclusions of that court, they cannot be disturbed here. Assuming that the defendants became responsible in regard to this freight at the time that it reached Charlotte, and the way bill was passed to the defendants and they took charge of the cars and inspected them, it is apparent that six of the eight days which occurred from the time of the delivery of the freight to the initial company to its receipt by the plaintiff from the receiving company, occurred while the defendants were responsible for the freight, in whole or in part, and the Justice’s Court might very well infer that the injury to the freight occurred during the six days.

The serious question in the case, however, is raised by the first objection. What was the duty of the defendants in this regard upon the arrival of the freight at the siding at Charlotte ?

By section 3d of chapter 676 of the Laws of 1892 it is provided that every railroad corporation “ * * * shall furnish sufficient accommodations for the transportation of all passengers and property which shall be offered for transportation at the place of starting within a reasonable time previously thereto, and at the junctions of other railroads, and at the usual stopping places established for receiving and discharging way passengers and freight,” etc.

The defendants are common carriers. They had a traffic arrangement with the initial road in regard to the carrying of freight; they shared with this road in the profits of such carriage; they had notice of the arrival of this freight at the place where it was their duty to receive it, and from the nature of the freight specified in the throught way bill,” and the rate charged, the Justice’s Court had a right to find that they knew it was perishable. They also knew that they were sharing in the profits of carrying this perishable freight at advanced rates. They had the right to take the freight and transport it in other cars. It was their duty to do so rather than let it remain five or six days until the cars were repaired in which it came, and during' which time from the nature of the freight it was liable to be destroyed. The defendants cannot shelter themselves from the responsibility, under the arrangement with the initial company, that it should repair the cars when their inspector pronounced them defective.

A railroad company receiving perishable property for transportation is bound to forward it immediately to its destination. This was their obligation at common law. (Tierney v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 308.)

At the time of the decision in that case there was a statute in . force imposing that duty (Chap. 140, § 36, Laws of 1850), which was repealed by the Railroad Act (Chap. 565 of 1890), but the common-law obligation still remains.

In The Ætna Insurance Company v. Wheeler et al. (49 N. Y. 616) the defendants were operating a railroad running east from Ogdensburg. The Northern Transportation Company, operating a line of propellers on the great lakes and connecting with the defendants’ road at Ogdensburg, and having a traffic arrangement witli the defendants, delivered a quantity of flour at a warehouse in Ogdensburg used in common by the two concerns, the expense of handling being paid in common. Held, that a delivery to this warehouse by the transportation company with notice of the arrival of the flour placed it in the possession of the defendants and imposed upon them the duties and liabilities of a common carrier with reference thereto.

A stronger case in this direction is Mills v. The Michigan Central R. R. Co. (45 N. Y. 622).

In Livingston v. The N. Y. C. & H. R. R. R. Co. (76 N. Y. 631, 632) the court sustained the submission to the jury by the trial court whether the sending of the way bills to the defendant in a case very much like this in its leading features, did not put upon the defendant the responsibility of taking care of the goods, and seeing that they were forwarded, and whether there was unreasonable delay on the part of the defendant.

The same question of fact was submitted to the Justice’s Court in this instance.

The through way bill was the history of the transit of the freight made up for both railroad companies governing the transit and defining the rights of the connecting corporations with reference to this freight, and upon its receipt by the defendants, it being at the place of connection and-subject to the defendants’ control, the duty was imposed upon them to receive and transport the freight within reasonable time, considering its character, to the place of destination, and the trial court having found the defendants negligent in this regard, the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Edward W. Hatch, Appellant, v. George E. Matthews and Another, Respondents.

      Libel — proof of malice — the semblance of a defense not stricken out as irrelevant — bill of pm'ticulan's of matter in mitigation.

    In an action brought to recover damages for an alleged libel the general rule is to admit proof of any fact which may possibly bear on the question of malice, and if there is the slightest doubt in the mind of the court whether the fact offered to be proved tends to disprove malice, the evidence should be admitted, and submitted to the jury under proper instructions.
    Where there is the semblance of a cause of action or a defense set up in a pleading, its sufficiency cannot be determined on a motion to strike it out as redundant or irrelevant. Wherever argument is necessary to show the irrelevancy of a pleading, the court will not strike out the matter objected to.
    Where the information called for, on an application for a bill of particulars, is such that it would be exceedingly difficult, if not impossible, to specify the particular acts upon which the allegation of the pleading was based; for example, such as might have been manifest by a look, by the tone of the voice, or by an expression or appearance, a bill of particulars of such matters will not be required.

      Queers, whether a bill of particulars should be directed of matter pleaded in mitigation of damages, especially where the plaintiff himself is familiar with the facts.
    Facts which are pleaded in an answer for the purpose of mitigating the damages, claimed in an action for libel, on the ground of provocation induced by a belief that the plaintiff had previously uttered slanderous words, and to that extent for the purpose of rebutting the inference of actual malice, or of reducing the degree of malice with a view of preventing 'punitive damages, will not be stricken out of the answer as irrelevant.
    Appeal by the plaintiff, Edward W. Hatch, from the following portions of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 18th day of July, 1894 :
    1. The part of said order which denies the plaintiff’s motion requiring the defendants to separate and number separately the portion of the second defense of their answer herein, beginning with-the words: “ Second: And for a second and further answer and defense,” etc., and ending with the words “plaintiff on the trial of said action or the proceedings connected therewith,” both inclusive, and to separate and state and number separately the remaining portion of said second defense begining with the words: “ These defendants allege, however, upon their information and belief, that the said plaintiff at the time of the trial,” etc., and ending with the words “ toward these defendants and the newspaper published by them,” both inclusive.
    2. The part of said order which denies the plaintiff’s motion asking that the defendants be required to state in what manner, respect and by what speech or conduct the prejudice and bias charged Upon the plaintiff in the following allegation in the second defense set forth in said answer were shown or manifested in the discharge of the plaintiff’s judicial functions on the trial of the case of Smith v. Matthews, aud the proceedings connected therewith, said allegation-being as follows:
    “ These defendants allege, however, upon their information and belief, that the said plaintiff at the time of the trial of the said action was and still is personally prejudiced and biased against these defendants, and the said newspaper published by them, and that that prejudice and bias influenced the mind and judgment of said plaintiff in the discharge of his judicial duties, and that it did bias and prejudice said plaintiff in his action in the trial of said action of said Smith against Matthews and the proceedings connected therewith.”
    Also an appeal by the plaintiff from an order made at the Erie Special Term and entered in said clerk’s-office on the 22d day of October, 1894, denying plaintiff’s motion to strike out certain allegations in defendants’ amended answer.

      Simon Fleisehma/rm, for the appellant.

      Charles B. Wheeler, for the respondents.
   Lewis, J.:

This action was brought against the defendants, as the proprietors and publishers of the Buffalo Mornvng Express, to recover damages for a libelous article published therein concerning the plaintiff. Plaintiff moved the court for an order requiring the defendants to serve an amended answer and separately state and number the matter set up as a second defense, and make the answer more definite in certain particulars. The motion was in part granted and in part denied, and from so much of the order as denied plaintiff’s motion an appeal was taken. After service of the amended answer plaintiff moved the court to strike therefrom certain allegations, as irrelevant. The motion was denied. Separate appeal books were made, but the motions were argued together, and may be so considered in disposing of the appeals.

The defendant Matthews was interviewed by a reporter of the Buffalo Enquirer, in which paper the interview was first published; it was thereafter, reprinted in the Express. The particular matter complained of consists in this statement: The reason for the malice that Judge Hatch has shown in his personal and judicial functions towards the Express is generally attributed to the fact that the Express prevented him from turning over the Superior Court to the Democratic party in order to gratify liis personal ambition to become a judge of the Supreme Court.” It is evident from the balance of the article that this had reference to a libel action which had theretofore been tried in the Superior Court of Buffalo, in which one Juliette C. Smith was plaintiff against these defendants. The plaintiff presided at the trial. The article contained an imputation that the plaintiff was actuated by malice towards the defendants upon the said trial. The way or manner in which such malice was manifested was not stated. If actual malice was manifested the inference would be that it was intentional or willful.

Malice is defined: “A propensity to inflict injury or suffering; active ill-will.” If the word malice,” therefore, be taken in its ordinary popular sense the inference would be that the plaintiff was charged with having acted in a malicious manner, with willful disregard of his duty, and that the defendants used the word in that sense in the article.

It was charged in the complaint that the defendants caused these publications to be made through malice conceived, harbored and manifested by them against the plaintiff, and that they wickedly and maliciously, with intent to injure the plaintiff, caused the publications to be made. Malice in law would be implied, and the want of actual express malice, or malice in fact, would be no justification or excuse, though the absence of it might be used in mitigation of damages. It is alleged in the defendants’ answer in mitigation of damages, in substance, that prior to these publications Charles S. Hatch, a brother of the plaintiff, and who was at the time clerk of the court of which the plaintiff was one of the judges, had publicly stated and declared to a reporter upon and one of the writers for the Buffalo ‘Enquirer, a daily newspaper published and having a large circulation in the city of Buffalo, in substance, that everybody in the city understands why Mr. George E. Matthews and the Express are so bitter against my brother,, myself,, the Superior Court and the office of clerk of the Superior Court. Every chance which the Express has it assails this court and this-office. In this it is traitorous to the Bepublican party, for the devotion of myself and my brother to the party can be questioned by no one. There is not a true Bepublican newspaper in this city,, and, when the project was first mooted to start a new Bepublican paper in this city, I said that I would subscribe to it. The reason why Mr. George E. Matthews and the Express are dead set against my brother and myself is because there is a heavy judgment in this court against the Express in the case of Smith v. Matthews. Mr. Matthews thought that the case of Smith v. Matthews should be arranged in such a manner as not to cause any particular trouble, and only a small or nominal amount of expense to the Express. Justice did not move that way, however, and a substantial verdict was obtained by the plaintiff against the Express for libel. My brother tried the case, and the Express apparently wanted him to disgrace the dignity of the bench by favoring the Express on the trial. The court did not show favor to the Express ; consequently the Express and Mr. Matthews are sore and cannot say things too harsh against this office.”

It is stated in the answer that the said Charles S. Hatch intended by said statements to charge the defendants and especially Matthews with the corrupt and unlawful attempt to improperly influence the plaintiff in the discharge of his official duties as one of the judges of the court in the conduct and trial of the case of Smith against the defendants, and that said statements and charges were absolutely false and untrue in every particular and without any foundation in fact and were designed to greatly injure and prejudice the defendants in their good name and reputation and to greatly prejudice the interests and rights of the defendants in the disposition of the case of Smith against them on appeal, and that the statements so made by Charles S. Hatch were made for the purpose and with the intention of having them published in the Buffalo Enquirer ; and that the defendant Matthews was requested to answer said statements arid charges, and, for the purpose of defending his own honor from what he believed to be an unwarranted and malicious attack upon his integrity, good name and reputation, he made to the reporter of the Buffalo Enquirer the statement in substance which was published in that jjaper and afterwards in the Buffalo Morning Express. The foregoing is a park of the allegations of the answer which the plaintiff asked to have stricken out, and if these were all of the allegations in the answer, they were probably not relevant to any issue in the case, and could not be proven on the trial for any purpose, for there is nothing thus far that tends to show that the plaintiff in any way authorized or directed the publication, or was in any way responsible for it. The publication of a libel by a third party upon a defendant is no provocation in law for the commission of a libel upon another, unless it can be shown that the latter was responsible for the publication, but the answer proceeds to state, upon information and belief, that the defendants “ had good and sufficient- reason for believing and did in fact believe that the said statements so as aforesaid made by the said Charles S. Hatch were the result and outcome of statements made by this plaintiff to the said Charles S. Hatch, and were the result of unfriendly and hostile feelings on the part of said plaintiff, the said Charles S. Hatch, toward these defendants and the newspaper published by them; that the reason these defendants had for believing that 'said statements so alleged to be made by the said Charles S. Hatch were the result and outcome of statements made by the plaintiff to said Charles S. Hatch and of unfriendly and hostile feelings on the part of the plaintiff towards these defendants and their newspaper are, the fact that these defendants wore credibly informed and believed that the statements so alleged to have been made by said Charles S. Hatch were in fact so made; that said Charles S. Hatch, owing to his official relations to the plaintiff as clerk of the Superior Court of Buffalo, and by reason of his kinship to the plaintiff as his brother, sustained intimate relations of friendship with the plaintiff and had peculiar means and opportunities of knowing the views, sentiments and feelings of his brother * * * toward these defendants; that said Charles S. Hatch and this plaintiff had aided and assisted each other in times past in procuring each for the other personal and political advancement and position, all of which were generally known, and these defendants believed and had good and sufficient reason to believe that the said Charles S. Hatch would not have made said statements unless some statements had in turn been made to him by the plaintiff,” and “ that these defendants know of no source from which Charles S. Hatch could derive any information touching the subject-matter of said statements saving and excepting from the plaintiff in this action.”

It is further alleged that the Buffalo Express had theretofore urged the abolishment of the Superior Court and had opposed the candidacy of the plaintiff for a certain office, and that the plaintiff and his brother were endeavoring to establish a rival newspaper to the Express, and that from all the circumstances of the case they had reason to believe and did believe that the libel published by Charles S. Hatch was not only the result and outcome of statements made by the plaintiff to him, but also the result of unfriendly feelings as aforesaid.

It is true, as argued by the appellant’s counsel, that, after all, these allegations are largely matters of inference, but in determining the question whether the defendants had good reason to believe that the statements made by the brother were the outcome of information he had derived from the plaintiff, the peculiar character of the facts can, with propriety, be considered. The defendants were charged in the interview with having improperly attempted to influence the plaintiff in the discharge of his judicial duties. Such an attempt, the jury would have the right to assume, would have been made secretly, when no one was present but the plaintiff and the defendants, and when Charles S. Hatch assumed to state that such an attempt had been made, the natural inference would be that his information came from the plaintiff. The question then is whether the facts thus pleaded can be used upon the trial for the purpose of mitigating the damages on the ground of provocation induced by belief that the plaintiff liad previously uttered these slanderous words, and to that extent rebutting the inference of actual malice, or reducing the degree of malice with the view of preventing punitive damages. The general rule is to admit proof of any fact that might possibly bear on the question of malice, and if there is the slightest doubt in the mind of the court whether the facts proposed to be proven tend to disprove malice the evidence should be admitted and submitted to the jury under proper instructions. (Dolevin v. Wilder, 34 How. Pr. 488; Gorton v. Keeler, 51 Barb. 475; Townshend on Slander & Libel, § 361.)

Where there is a semblance of a cause of action or a defense set up in a pleading its sufficiency cannot be determined on motion to strike it out as redundant or irrelevant. (Walter v. Fowler, 85 N. Y. 621; Hagerty v. Andrews, 94 id. 195.) Such a motion should be granted only where no doubt exists of the irrelevancy charged and where there is evidence that its retention would embarrass the opposite party in the prosecution of his defense. (Williams v. Folsom, 32 N. Y. St. Repr. 455.) The court will let the matter objected to stand where argument is necessary to show the irrelevancy of the pleading. (Baer v. Seymowr, 12 N. Y. St. Repr. 166; Littlejohn v. Greeley, 22 How. Pr. 345; Finger v. City of Kingston, 29 N. Y. St. Repr. 703; Duprat v. Havemeyer, 18 Wkly. Dig. 439; Bradner v. Faulkner, 93 N. Y. 515.)

The question whether facts set up are or are not such as should be permitted to be given in evidence in mitigation is especially proper to be decided by the judge on the trial. He being present, a witness to the exigencies of the trial as it progresses, is better situated to dispose of such a question than the court at Special Term. (Townshend on Slander & Libel, § 361, and cases there cited.) Motions to strike out irrelevant or redundant matter in a pleading are not regarded with favor by the courts. Whether they should be granted or not is to a large extent a matter of discretion and not of absolute right. (Town of Essex v. K. Y. & C. R. R. Co., 8 Hun, 361; Smith v. Hilton, 50 id. 242.)

We incline to the opinion that the matter complained of can be properly proven on the trial in mitigation of damages. It follows that the court, at Special Term, did not err in refusing to strike it out. The plaintiff also asked that the defendants be required to furnish to the plaintiff a bill of particulars which should state by what speech or conduct, or in what manner and respect the prejudice and bias alleged to have been shown by the plaintiff were shown or manifested in the discharge of his judicial functions and in his action on the tidal of the case of Smith v. Matthews and the proceedings connected therewith, as alleged in said answer. The nature of the allegation is such that it would be exceedingly difficult, if not impossible, to specify the particular acts of the plaintiff upon which it was based. Such prejudice and bias may have been manifested by a look, by the tone of the voice in making the charge to the jury, by an expression or appearance which it would be difficult to specify in a bill of particulars. A doubt is suggested in Newell v. Butler (38 Hun, 106) whether a bill of particulars should be directed of matter pleaded in mitigation of damages (Holmes v. Jones, 13 N. Y. St. Repr. 57), especially in a case where the plaintiff was himself familiar with the facts. '

The court, we think, properly disposed of that part of the plaintiff’s motion requiring the defendants to separately state and number the facts and matters set forth in their second defense. That part of their answer consisted of facts and circumstances which naturally and properly belonged together, and which were pleaded in mitigation of damages; the part of the second defense which denied that the defendants intended to charge the plaintiff with intentional or willful misconduct, legitimately and properly belongs with the clause following, which alleges that the plaintiff in fact was personally prejudiced and biased against the defendants and their newspaper, and that said prejudice and bias influenced his mind and judgment in the discharge of his judicial duties upon the trial of said action of Smith v. Matthews. The plaintiff’s contention involves the separation of these parts of the answer.

We fail to find any reason for reversing either of the orders appealed from. They should be affirmed, with ten dollars costs and disbursements.

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

Orders affirmed, with ten dollars costs and disbursements,