author: By the Court,—Monell, J.

text:
    AARON FRIEDMAN, Plaintiff and Respondent, v. NICHOLAS DEWES, Defendant and Appellant.
    A person having an equitable interest or title to real estate is in a position to contract with another for the sale and conveyance of the same at a specified time and place, and if at the maturity of such contract he is able to procure a conveyance of the fee, and a good title of the property to his vendee, and offers to do the same, it would be a fulfillment of his contract. '
    A party to such contract, who has made a payment to another on account of the purchase, cannot rescind the contract and recover his payment on the ground that the person with whom he contracted was not the owner of the property and in no condition or with no ability to perform the same, when in fact .that person produces the owners of the same, who can convey and make title to the same, to the vendee, and offer at the specified time and place to execute and deliver a proper conveyance of the same in fee already prepared for the purpose.
    Before Monell and Spencer, JJ.

      Decided December 30, 1871.
    Appeal from a judgment.
    The action was to recover a payment made upon a contract of purchase of real estate, agreed to be sold and conveyed by the defendant to the plaintiff.
    The complaint alleged the making of the contract, the payment of the money, and that the defendant had riot delivered or offered to deliver a deed of the premises, although often requested by the plaintiff to do so.
    The answer denied every allegation except, the making the contract and payment of the money.
    The action was tried bv a referee.

      It appeared that at the time of the contract with the plaintiff the defendant was not the owner of the property, but he had a contract from the owner for the conveyance to him on the day named in his contract with the plaintiff. That fact seems to have been well known to the plaintiff. On the day the conveyance was to have been made the plaintiff went to the owners, and after some conversation respecting the payment of a further portion of the purchase money, the plaintiff refused to make the payment, alleging that the title was not good. The owners were present ready to execute and deliver to the plaintiff a deed, upon performance by him of the contract with the defendant. The referee found the following facts :—
    That the defendant did not own the premises at the time of the making of the contract and payment, nor was he the owner thereof on the 1st day of November, 1866. But that prior to the 24th day of October, 1866, he had entered- into a contract for the purchase of the premises from Jacob Bermann and John Schappert, who were the owners of same, whereby Bermann and. Schappert covenanted to deliver to the defendant, on or before the 1st day of November, 1866, a deed thereof.
    That on the 1st day of November, 1866, the plaintiff applied to ‘the agent of defendant for an extension of the time to complete his said purchase, and was by him taken to Bermann, who covenanted to grant said extension, provided a further sum were paid as greater security for the completion of the contract, which further sum the plaintiff agreed to pay to Bermann in the evening of the same day, at the place designated in said contracts respectively for the delivery of said deeds. That in pursuance of that understanding the plaintiff was present at or about the time for that purpose designated to make such further payment, and met Bermann and Schappert, who claimed the time was up, disavowed any contract agreement with the plaintiff, refused to grant any such extension, but did offer to execute a deed, already drawn and prepared for that purpose, conveying the premises to the plaintiff, upon receiving the moneys specified in said last mentioned agreement, to be paid them on the delivery of their deed thereof to the defendant. That the defendant did not attend personally at the time and place designated in the first mentioned agreement to deliver any deed for the premises to the plaintiff, nor did he make a tender, or cause to be tendered, any deed for the purpose of conveying the premises from himself to the plaintiff.
    The referee rendered judgment for the plaintiff for the amount of his payment and interest.
    The defendant excepted and appealed.

      Mr. J. E. Cary, for appellant.

      Mr. S. Hirsch, for respondent.
   By the Court,—Monell, J.

The theory of the referee’s decision seems to have been that, inasmuch as the defendant was not the owner of the property, either at the time of making or of the maturity of the contract, he was in no condition to perform, and therefore no demand of performance was necessary; and that upon those facts the plaintiff could rescind the contract, and recover his payment upon it.

Such theory, however, cannot be sustained-. The defendant, under his agreement of purchase, had an equitable title, and that was sufficient to authorize his contract of sale to the plaintiff; and, if at the maturity of his contract, he was able to procure a conveyance of the fee to his vendee, it would be a performance of his contract. ■ ■

It clearly appears in the case, and the referee has found the fact, that Bermann and Schappert, the owners of the property, and with whom the defendant had his contract, offered to execute a deed, then prepared, for the purpose of conveying the premises to the plaintiff, upon his complying with his contract with defendant. But the offer was refused, on the ground that the title was not good.

No proof was offered to show that the title was not good, nor other reason furnished, for the refusal to receive the deed. There was, therefore, no evidence of any default on the defendant’s part. The offer of Hermann to convey, in performance of the defendant’s contract with the plaintiff, was a substantial compliance on the defendant’s part. And as there was no demand made of him, and the other offer was refused, for, as appears, a groundless reason, the plaintiff was not in a condition to recover Ms payment.

For these reasons the judgment should be reversed, the order of reference vacated, and a new trial ordered, with costs to the appellant to abide the court.


source: Caselaw Access Project

author: By the Court.—Spencer, J.

license: Public Domain

text:
    ROSA E. RAINSFORD, Aministratrix, &c., Plaintiff and Appellant, v. THE ROYAL INSURANCE COMPANY, Defendants and Respondents.
    A policy issued by the Royal Insurance Company of Liverpool, through its agency at the city of New York, issued a policy upon the life of one George B. Waldron, which contained a condition in the body of the policy, which provided that the policy and insurance should be subject to the several conditions, restrictions, and stipulations indorsed thereon in the same manner as if they had been incorporated in the body of the policy.
    The policy also contained another provision, as follows : “Provided also that in case the said assured shall at any time depart beyond the limits of Europe, without the previous consent of the said company, from time to time duly signified by indorsement hereon, then this policy shall cease and be void to all intents and purposes whatsoever, and all premiums or moneys which shall have been paid in respect thereof, shall be forfeited to the use of the said company.” ,
    The following memorandum was printed on the policy immediately after the signatures of the directors, the date and signature of the agent being written in said printed memorandum, all of which was indorsed upon said policy when the same was issued :
    “ Memorandum, 28th November, 1863: It is hereby agreed that the life assured by this policy shall have permission to reside in any part of North America, to the northward of thirty-six degrees and thirty minutes of north latitude, but not to the westward of the Rocky Mountains, and likewise, from the first day of November to the first day of July, to travel and reside in any place in the United States south of the above limits, but not to the westward of the Rocky Mountains ; also, to pass in decked vessels, in time of peace, from any one port of Europe to another, from any part of North America to another, within the above limit's, and between any European port and any North American port within the said limits, anything herein contained to the contrary notwithstanding.
    “ By order of the committee,
    “ J. H. F. “A. B. McDosfai/d, Agent.”

      Meld, that the prohibition contained in the body of the policy, and the exceptions and conditions contained in the memorandum indorsed thereoi£¡ must be read and construed together, and being thus read and construed, the policy is to be considered as containing a condition that would read as follows: “ Provided also that in case the said assured shall at any time depart beyond the limits of Europe, excepting in traveling or residing in any part of the United States to the northward of thirty-six degrees thirty minutes north latitude, and in any part south of that line between the first day of November and the first day of July, then and in such case this policy shall- cease and be void,” &c. Such a policy by its terms prohibits the assured from traveling or residing in any part of the United States south of thirty-six degrees thirty minutes north latitude, between the first day of July and the first day of November, of any year during the life of the policy, and if assured violates its provision or prohibition, the penalty is that the policy ceases to be valid.,
    At the time the assured made his application, and before the policy issued, the insurance company issued to the assured a stipulation * or permit as follows:

      “ It is understood and agreed that said George B. Waldron has permission to proceed, by first-class vessel, to New Orleans, on and after this date.
    “ A. B. McDonald, Agent.
    “ New York, 33d October, 1863.”
    This was written upon the foot of a receipt of the same date, given by the company to the assured for his premium paid oh his proposal or application for assurance.
    The assured sailed on October 34, 1863, from New. York to New Orleans, and after his arrival at the latter place, he continued to reside there until August 33, 1864; returning to New York August 31, 1864.
    The company claimed that the policy was violated by this residence in New Orleans, and refused to be bound by the same, and to receive any further premium on account thereof. The assured died in February, 1865, from disease of the brain, which first showed its commencement November 1, 1864. Reid, that the written stipulation or permit given to the assured to proceed to New Orleans, affected only the contract between the company and assured at the time the permit was given, and was not intended to be incorporated into the policy; and the policy could not be reformed so as to include the same within its terms. Also, Held, that the permit was a temporary condition or contract to enable the assured to proceed to New Orleans, between its date (October 33), and November 1, that being a time that the agent of the company and the assured assumed would be prohibited in the policy when issued. Its interpolation into the policy could not benefit the assured, as no reasonable construction of its literal terms would extend it as a permission to reside south of the proscribed line.
    Its utmost limit of construction would only permit the assured to proceed to New Orleans after its date, and to return north of the pro- • scribed line before July 1, of the next year.
    Before Barbour, Ch. J., Freedman and Spencer, JJ.

      Decided December 31, 1871.
    Appeal from a judgment entered upon the findings of fact and law made by judge of special term in favor of defendant for costs against the plaintiff, August 16, 1870.
    In October 1863, one George B. Waldron made application to the defendants for an assurance on his life for the sum of fifteen thousand dollars. The application was in accordance with forms of the defendants, and consisted of the statements of the applicant, his physician or medical attendant, and of one of his friends, and also of one Williams, the agent of applicant in procuring the assurance, all of which statements were made in the form of answers to questions from these parties respectively, except the concluding declarations of said Waldron, and the report of the medical examiner of defendants, all of which formed a part of said application. The application being formally completed about the 22nd day of October, 1863, said Waldron paid to defendants’ agent in New York the sum of two hundred and seventy-nine dollars and seventy-five cents, and received a receipt, of which the following is a copy:
    Exhibit “ F”
    “The Royal Insurance Company of Liverpool, “New York Agency, 22d October, 1863.
    t « j gt^ I ‘ ‘ Received from George Buckmaster Wald-|canceled, f r0I1) Esq., the sum of two hundred and seventy-nine xV-g- dollars, premium on a proposal of assurance for fifteen thousand dollars, on his own life, which is to be forwarded immediately to the head office at Liverpool, England, for acceptance. If it be accepted, a policy will be issued in accordance therewith ; if declined, the above mentioned premium will be returned. But in case the said George Buckmaster Waldron die before the decision of the head office shall-have been received, the sum insured will be paid in accordance with my instructions.
    “A. B. McDonald,
    $279t\V Agent.”
    Afterwards, at the request of Waldron and on his behalf, Mr. Williams applied to defendants and obtained a permission, which was written upon the foot of the foregoing receipt, and reads as follows :
    Exhibit “ G.”
    “ It is understood and agreed that said George B. Waldron has permission to proceed, by first-class vessel, to Mew Orleans, on and after this date.
    “ A. B. McDonald,
    ‘ ‘Agent.
    “Mew York, 22d October, 1863.”
    This was obtained several days after the signing of the receipt. At the time the receipt was made and delivered Waldron executed and left with Williams an assignment of the policy to George S. Rainsford, and which was afterwards, on the receipt of the policy, delivered with the foregoing receipt and permission to said G. S. Rainsford by Williams, as directed by Waldron. The policy was duly issued by defendants, delivered to and accepted by Williams, as the agent of Waldron, and, as before stated, delivered to Rainsford, of whose estate plaintiff is administratrix, about December 1863. Waldron sailed on October 24, 1863, and after his arrival he continued to reside there, until August 23, 1864, when he sailed for Mew York by the steamer Yazoo, arriving August 31, 1864. In the latter part of September or first of October, 1864, Waldron called upon the agent of the defendants at the office of the company in Mew York for the purpose of making the policy good, and was informed by the agent that the company considered the policy vitiated by his continued residence in the South, that' before the company should make it good they should require a new examination by its medical examiner, and a large extra premium, for his residence at the South during the summer months. About the same time a Mr. Speir called in behalf of the plaintiff upon the defendants, and offered to pay any extra premium if any there was on the policy, in order to keep it good. Defendants’ agent informed him that the company considered the policy as vitiated by Mr. Waldron living south beyond the time allowed by the policy, and refused to do anything until Waldron had been examined, and declined to receive any premium on that ground. Afterwards, and in October, 1864, plaintiff tendered to the agent of .the defendants three hundred dollars, as and for any premium due on the policy. The tender was refused on the grounds of the policy being vitiated by the residence of Waldron south.
    Waldron died at Stonington, Conn., February 18, 1865, from disease of the brain, which first showed its commencement November 1, 1864. Formal proofs of his death were made and sent to the agent of the defendant in October 1866, with a letter of which the following is a copy :
    Exhibit “ P.”
    u 58 Wall Street, New York,

      ‘ ‘ October 27th, 1866.
    “A. B. McDonald, Esq., Agent,
    “ Boyal Insurance Company of Liverpool:
    “ Gentlemen—Herewith please find proofs in the policy 11,419, on life of Greorge B. Waldron, in our hands for collection of amount due ; please advise us when you will be ready to pay the same, and oblige “ Yours respectfully,
    “ Weeks & Forster.”
    Defendants replied as follows:

      Exhibit “V.”
    “Boyal Fire and Life Insurance Office.
    “ Life Department. No. 56 Wall Street,
    “ New York, 17th November, 1866. “Messrs. Weeks & Forster:
    “ Gentlemen—In answer to yours of 7th inst., calling my attention to the insurance upon the life of George B. Waldron, referred to in a previous letter, and asking to be advised, ‘are the proofs of the death of the assured sufficient and satisfactory to the company, and has the company yet arrived at any conclusion as to its action in the matter,’ I have only to reply, as I did verbally to your previous letter in the interview I had with your Mr. Forster, that the Boyal Insurance Company were not insurers upon the life of George B. Waldron at the time of Ms death, the policy which he had once held having been avoided by flagrant violations and breaches of its conditions, and that state of facts having been fully recognized by himself, before his death, and that the company have never hesitated, for a moment, to reject any claim which may be made upon them under the policy, and the proofs of death delivered to me are at your disposal.
    “ Yours respectfully,
    “A. B. McDonald,
    “Agent.”
    Afterwards, plaintiff requested defendants, in writing, to reform the policy .so as to set forth the actual agreement made by Waldron with defendants when the insurance was made, which request was not complied with.
    On the receipt and acceptance of the application of insurance of Waldron at the office of the company defendants in Liverpool, England, the policy in question was filled up and transmitted to defendant’s agent in New York, complete in all respects except adding the dates and the signatures of three of the directors, which the agent had power to make, and which he did do and delivered the same as heretofore stated. The form of the policy appears to be one adopted by the defendants for assurance of lives in New York, for there is printed upon the same, at the head thereof, these words: “_ZVew TorTc Foreign Policy, A. B. McDonald, Esq., Agent.” After stating the terms of the assurance, there follows in the body of the policy a condition or provision that the policy and assurance shall be subject and liable to the several conditions, restrictions, and stipulations indorsed thereon in the same manner as if they were incorporated in the body of the policy. Then follows several conditions and provisions united in one paragraph, one of which, separated from the others, is as follows: “ Provided also that in case the said assured shall at any time or times depart beyond the limits of Europe, without the previous consent of the said company, from time to time duly signified by indorsement hereon, then this policy shall cease and be void to all intents and purposes whatsoever, and all premiums or moneys which shall have been paid in respect thereof shall be forfeited to the use of the said company.”
    The following memorandum is printed on the policy immediately after the signatures of the directors, and may be properly termed an indorsement on the policy, the date and signature of the agent being written in. said printed memorandum, all of which was indorsed upon said policy when the same was issued :
    “Memorandum, 28th November, 1863 : It is hereby agreed that the life assured by this policy shall have permission to reside in any part of North America to the northward of thirty-six degrees and thirty minutes of north latitude, but not to the westward of the Rocky Mountains, and likewise, from the first day of No venaber to the first day of July, to travel and reside in any place in the United States south of the above limits, but not to the westward of the Rocky Mountains ; also, to pass in decked vessels, in time of peace, from any one port of Europe to another, from any part of North America to another, within the above limits, and between any European port and any North American port within the said limits, anything herein contained to the contrary notwithstanding.
    “By order of the Committee,
    “ J. H. F. “ A. B. McDonald, Agent.”
    The judge, before whom this case was tried, found for the defendants. One of his findings in the case was as follows: “6th. That one of the terms and conditions of said’ policy was and is, that the said Waldron should not travel or reside in any place in the United States south of thirty-six degrees thirty minutes north latitude, from July 1st to November 1st.” To this finding no exception was taken as appears in the case, nor was there any taken to that part of the 10th finding, in which the judge found that Waldron resided south of thirty-six degrees thirty minutes from July 1st to August 23rd, 1864.
    The judge also found that Waldron was told at the time of the negotation for the assurance, by Williams, his agent in the premises, that under the policy to be issued, he (the said Waldron) could not reside or travel south of thirty-six degrees thirty minutes, north latitude, between 1st July and 1st November without the permission of the company ; also, that the permission to go to New Orleans, dated October 22, 1863, was obtained by Williams at the request of Waldron, after the application for assurance had been made and the receipt of the same and the money paid as premium given ; also, that the residence in New Orleans, from July 1st to August 23rd, 1864, was not under nor authorized by said permission; and to these latter findings exceptions were duly taken by plaintiff s attorneys.

      Weeks & Forster, for appellants.

      Barlow, Larocque & Macfarland, attorneys, and W. W. Macfarland, of counsel, for respondents.
   By the Court.—Spencer, J.

I hold that the policy issued upon this application was delivered and accepted by the assured as the contract of assurance, and is the contract to be considered by the court.

That the written permission of the defendants, given to Waldron, affected only the contract existing between defendants and the assured at the time the permission was given. That by its terms as compared with the agreement between the parties at the time and the contract as made by the issue and acceptance of the policy, this permission was not intended by the parties to be incorporated into the policy ; it was a temporary condition or permission made for the convenience and benefit of the assured, to enable him to travel, between October 22nd and November 1st, 1863, south of the line, that he and his agent and defendant’s agent believed and assumed would be proscribed by the policy when it issued. The policy is dated of the 28th of November, 1863, and could not be affected by this permission, except by the literal terms of the same, which included no permission to reside at, but only u to proceed to New Orleans.” No reasonable construction of this permission would extend it as a permission to reside south of thirty-six degrees thirty minutes, even if held to apply to the policy. Its utmost limit of construction would only permit the assured to proceed to New Orleans after its date, and return north of the proscribed line, , before July 1st of the next year. Therefore the conclusion of the learned justice, that the interpolation of the same in the policy conld not benefit the plaintiff, was correct; and his refusal to reform the policy so as to include it forms no basis for the reversal of this judgment.

After a full consideration of all the exceptions of the plaintiff to the rulings of the court below, I find nothing in the caise to justify a reversal.

Upon the argument of this appeal the question was raised by the learned chief justice, “Whether the policy itself, in its several terms and conditions, contained any prohibition against the assured residing south of thirty-six degrees thirty minutes north latitude at any portion of the year. The question appeared to be one that had not been considered nor acted upon by either party prior to the argument. I think this is the only serious question in the case, and the only one I propose to discuss.

From a full review of the case, I conclude no such question arose before the judgeupon the trial. N"o one suggested any doubt as to the effect of the agreement or contract of assurance as contained in the policy. Plaintiff sought to overcome an assumed prohibition, by proof of this consent or permission, and of the terms of assurance made between the parties prior to the issue of the policy, and sought a reformation of the policy so as to conform the same to the conditions of the application. The judge, in his findings, states this prohibition as existing in the policy, and the plaintiff’s attorney finds no fault with nor takes exception to the same. So much for the views and actions of the parties, and of the court below. I consider this policy as a very imperfect instrument, so far as expressing clearly the prohibition claimed, and which seems to have been understood by the parties-.

The defendants appear to be an English company, doing business at Liverpool, but their policy is dated and apparently issued at New York, and assures the life of a citizen of New York who pays the premium or consideration of assurance to their New York agent. It contains a condition in the body of the policy, that if the assured, departs beyond the limits of Europe, without the consent of the' company indorsed on the policy, that the policy shall cease and be void. If there were no terms nor conditions subsequently expressed, that changed or affected this condition, I should hold that the policy was void on its face, because of the contradiction of its terms or the impossibility of the same being fulfilled by the assured, or reconciled with the status of the parties at the time of its execution. But the wisdom of the directors, of counsel of defendants, have sought a remedy for these things, and have caused a memorandum to be indorsed on the policy which allows the assured to reside and travel beyond the limits of Europe, and to travel and reside in any place in the United States south of thirty-six degrees thirty minutes north latitude, from November 1st to July 1st. If the prohibition contained in the body of the policy and the exception or conditions in the memorandum are to be read and construed together, then the policy contains the desired prohibition.

I-am satisfied, if the policy alone was before us, that we should have great doubt as to the intention of the parties in regard to any prohibition being contained in the policy itself; yet I think it is one of those contracts where the meaning of the words or terms used are of that doubtful or unintelligible character, that parol testimony should be admitted to explain the same. With the whole evidence in this case before us, especially this written permission, I am satisfied that a just and reasonable construction of this contract would cause the condition in the body of the policy, and in the memorandum indorsed thereon, to be read and construed together, and that the prohibition assumed and understood by both parties exists, and has force thereby. I hold, therefore, that this policy is to be considered in this review on appeal, as if the condition in the body of the policy read as follows: “ Provided also that in case' the said assured shall at any time depart beyond the limits of Europe, excepting in traveling or residing in any part of the United States to the northward of thirty-six degrees thirty minutes north latitude, and in any pari south of that line be-the first day of November and the first day of July, then and in such case this policy shall cease and be void,” &c. This construction of the policy admits the prohibition, and therefore, the residence of the assured in the South, during the year 1864, against the terms thereof, released the defendants from the conditions of assurance.

I conclude,this judgment should be affirmed, with costs.


author: By the Court.—Monell, J.

text:
    JOHN N. KEIN and ROBERT KEIN, Plaintiffs and Respondents, v. WILLIAM V. TUPPER and JAMES BEATTIE, Defendants and Apellants.
    I. Contract executory for sale and delivery of goods.
    . 1. Entirety of.

      а. A contract for the sale and delivery of 119 bales of cotton, is . entire.
    б. Such a contract is not satisfied by the delivery of a part only. a. When part only is delivered, the vendor cannot recover for that part without a delivery or tender, of the balance, unless the entire performance has been waived by the vendee, or rendered impossible by the act of God.
    1. Emm for not fully performing; what is not.

    1. A destruction of part of the goods by fire is not.

      d. Specific articles. Although the contract be for specific articles, • the above principles apply.

      U. Sale and Purchase op Goods. —Testing- op Title in Purchaser.
    1. Where the articles sold have to be weighed in order to determine the amount to be paid therefor, the title does not vest in the purchaser until after the weighing has been had. in. Application op above Principles. — Bought and Sold Rotes.
    1. Under bought and sold notes, executed by a broker for cotton describing the property thus:
    W. X. V. 113 J. P. O. 7

    119 bales, at 31J cents,—
    the vendor gave the purchaser an order for the cotton on the warehouseman with whom it was stored; the purchaser sent the order to the warehouse, with the direction indorsed, “ Re-store on my account,” with a sampler ; who received, weighed, marked and sampled seventy bales, which were re-stored on the purchaser’s account; owing to the lateness of the hour, the warehouseman refused to turn out any more bales at that time. During the night, the warehouse and its contents were nearly destroyed by fire. The balance of the one hundred and nineteen bales were never delivered or offered to be delivered. In an action brought by the vendor for the price of the seventy bales.
    Held, 1. There was no completed sale of the whole number of bales, and therefore he could not recover in that aspect of the case.
    3. Whether the contract was one for the sale of a specific lot of cotton, or merely for the sale and delivery of one hundred and nineteen bales of a certain quality, still full performance was necessary to a recovery, and a delivery of a part only,, without a delivery, or offer to deliver the balance, did not constitute full performance; and therefore, he could not recover in either of these aspects.
    Before Monell, McCunn and Freedman, JJ.

      Decided December 31, 1871.
    Appeal from judgment.
    The action was to recover the contract price of seventy bales of cotton, weighing thirty-five thousand nine hundred and thirty-eight pounds, alleged to have been sold and delivered by the plaintiffs to the defendants.
    The answer denied the sale and delivery of the seventy bales, and as a separate defense, alleged, that the plaintiffs had contracted to sell to the defendants one hundred and nineteen bales of certain marks ; that it was sold by sample, and that such contract was the only contract between the parties. They then alleged non-performance of the last mentioned contract by the plaintiffs,' by the non-delivery of said one hundred and nineteen bales, and the readiness of the defendants to receive the same.
    The action was tried before Chief Justice Barbour and a jury.
    On the trial the plaintiff introduced the following bought and sold notes:
    “Office of Daniel W. Talcott, 1 Cotton Broker, 131 Pearl-street, j
    “New York, July 3rd, 1868.
    “ I have this day sold on your account the undermentioned cotton. Payment, cash on delivery.
    Harks, Quantity, Description, Price, Name of Ship, Buyer, “W. X. Y. 112 “J. P. O. 7
    118 Bales, at 31| c. Tupper & Beattie.
    “DANIEL W. TALCOTT,
    ‘ ‘ Messrs. Kein & Company. ‘ ‘ Per C. M. Willett.
    “No reclamations allowed on any cotton of the grade of ‘ Low Middling,’ and below, unless the difference in qualities in any. one bale is to the extent of one full grade, and even in such case, no reclamation to be allowed unless claimed on delivery of the cotton. No reclamation allowed for iron hoops or bands to the number of six on each bale, if not of unusual weight.”

      The “bought” noté was the same as the above in all respects, substituting “ bought” for “sold,” and “ Tupper & Beattie ” for “Kein & Company,”
    The plaintiffs then proved that they held on the day of the sale, one hundred and nineteen bales of cotton, purchased from C. B. Camp & Co., who had purchased the same from Dibble, Worth & Co., bearing the specific marks stated in the bought and sold notes, and which was stored in the warehouses Nos. 502 and 506 Wasliington-street, in this city.
    The time for delivering was extended for the accommodation of the defendants to the 15th of July. On that day they gave the plaintiff the following written order:
    “New York, July 15, 1868.
    “Messrs. Kein & Co.
    “Will please deliver to bearer, weighed and in good order, 'one hundred and sixteen bales cotton, marked:
    “W. X. Y. 106 “J. P. 0. 13
    119
    “And oblige,
    1 ‘ TUPPER & BEATTIE.
    “ (Indorsed) order.
    “Tupper and Beattie, 119 b. c.
    “July 15, 1868.”
    The plaintiffs théreupon caused to be delivered to the defendants the following orders :
    “New York, July 15th, 1868. “Messrs. C. B. Camp & Co.:
    “Please deliver bearer one hundred and nineteen (119) B. C., weighed and in good order, and oblige,
    “ W. X Y. 112 “KEIN & COMPANY,
    “J. P. O. 7 “ Jno. Higgins.
    “119 B. C.”

      New York, July 10, 1868.
    “ 502 and 506 Washington-street.
    “Please deliver Messrs. C. B. Camp & Co., bearer in good order one hundred and nineteen bales cotton.
    “W. X. Y. 106 ,
    “J. P. O. 13 “DIBBLE, WORTH & CO.,
    119
    “A. C. Worth.
    “ Stored, April 27th, 1868.
    (Indorsed)
    (Mender)
    “ BLAKE & SON. “WRIGHT & CO.
    Upon the receipt of which orders the defendants directed to be indorsed upon the latter, the words at the bottom, “Re-store for acc. Tapper & Beattie, 114 Wall-street. Send storage receipt by sampler.”
    On the same day, the defendants caused one hundred and nineteen bales of cotton of these specific marks to be insured against fire, but erroneously described them as being in warehouses 508 and 510 W ashington-street.
    The defendants sent a sampler to sample and receive the cotton, taking with him the order on the warehouse. The sampler received seventy of the one hundred and nineteen bales, which were weighed, marked, and sampled, and then re-stored in the same warehouse for the defendants, as directed at'the foot of the order; the warehouse men refusing, owing to the lateness of the hour, to turn out any more bales at that time. During that night the warehouse and its contents were destroyed or nearly destroyed by fire. Of the seventy bales, twenty-eight were saved in a damaged condition, and sold for account of defendants, and they were credited for such bales at the contract price.
    The defendants moved to dismiss the complaint, on the ground that the contract was entire, and the plaintiffs had not shown a nerformance or offer to perform in full. The motion was denied, and the defendants excepted.
    The court, in charging the jury, left it to them to find, whether the cotton" sold was ‘ a specific, definite lot of cotton, or merely a contract to sell one hundred and nineteen bales of a certain quality of cotton that would answer the samplesand he instructed them that if they found that a particular lot of cotton was not contemplated by both parties, their verdict should be for the defendants. But if the jury come to a different conclusion, then he left it for them to determine if there had been a delivery of the'seventy bales.
    The defendants excepted to the charge, and also to the refusal of the court to charge that the contract to deliver one hundred and nineteen bales was an entire contract, and was not satisfied by the delivery of seventy bales, and that the plaintiff could not recover without showing a tender of the remaining forty-nine bales.
    There were many, other requests to charge, which were refused and exceptions taken, and also numerous exceptions to the reception and rejection of evidence, none of which, in the view taken by the court on this appeal, are necessary to be stated.
    The court restricted the recovery to the value of forty-two bales, holding that the value of the twenty-eight bales partly destroyed should be allowed to the defendants.
    The jury found for the plaintiffs for the value of the forty-two bales, and judgment was entered upon the verdict.
    The defendants appealed.

      Benedict & Benedict, attorneys, and R. D. Benedict, counsel for appellants, urged:—
    I. The only contract between these parties was contained in the bought and sold notes. It was not a sale, but an executory, contract of sale. The judge so charged, and that is the law of the cases (Joyce v. Adams, 8 N. Y. 297). It could not be a sale, for the plaintiffs had no cotton to sell at the time.
    II. It was not a contract to sell specific bales, but to sell a given quantity. This is matter of law, and the judge erred in submitting it as a question of fact to the jury, whether the contract contemplated a particular lot. a. The contract was in writing in the bought and sold notes proved by the plaintiffs, and it can be no more varied or contradicted in respect to its legal effect than it can be in respect to its express terms (2 Abb. Dig. 631, § 765; and cases cited). b. As matter of law, that contract would have been fully complied with by the sellers, if they had delivered one hundred and nineteen bales, of those marks, and corresponding with the samples shown at the time, no matter where they got them. “ The subject matter of the contract of sale, so far as it respected the number of bales and brands, was identified by it, but it did not call for the cotton stored at 502, 504 and 506 Washington-street. Any other bales of cotton of the descrip- • tion specified would as well have answered the obligation of the sellers with the buyers ” (Joyce v. Adams, 8 N. Y. 297). ' It would be a most astonishing conclusion, if on such a contract, the parties were limited to specific bales.
    III. If this be so, the judge erred in refusing to dismiss- the complaint, and in refusing the first, second, and third requests to charge, a. The contract being an entire one, plaintiffs could not recover upon it without proving performance (Russell v. Nicholl, 3 Wend. 119 ; Barker v. Higgins, 21 N. Y. 397 ; Solomon v. Neidig, 1 Daly, 200 ; Tomkinson v. Dudley, 25 N. Y. 272 ; Champlin v. Rowley, 13 Wend. 258 ; Meed v. Degolger, 16 Wend. 632 ; Paige v. Ott, 8 Den. 406 ; Knight v. Dunlop, 4 Barb. 36). b. Even if the fire had destroyed all the cotton in New York, it would have been no excuse to them for failing to perform. But as it was, no excuse whatever was shown for failing to deliver one hundred and nineteen bales of cotton, agreeing with the sample and the marks, o. It is entirely clear on the facts, that no particular lot of cotton was contemplated. The description in the bought note is:
    WXT 112 J P O 7
    119
    The description in the delivery order is:
    WXT 106 J P 0 13
    119
    Either it was not a sale of a particular lot, and the judge’s charge at fol. 192-3 was erroneous, or no order to deliver that particular lot was ever given, and the motion for nonsuit should have been granted.
    IV. But if we grant that it was a particular lot which was agreed to be sold, the judge -was equally wrong. a. The rule is that where something is to be done by the seller to ascertain the quantity of the article sold, the title does not pass (1 Pars, on Cont. 441 ; Zagury v. Furnell, 2 Campb. 240 ; Rugg v. Minett, 11 East, 215 ; Fitch v. Beach, 15 Wend. 221 ; Barly v. Ogden, 3 Johns. 408 ; Guard v. Prouty, 34 Barb. 456 ; Terry v. Wheeler, 25 N. Y. 524). Here the cotton required to be weighed and to be sampled. The title, therefore, did not pass. b. The weighing was a condition precedent. It could be waived by the purchaser, but unless waived it must be complied with. This weighing, which was the condition precedent, was the weighing of the article sold—the one hundred and nineteen bales—and unless the plaintiffs show that there was a waiver of this weighing of the lot, they cannot recover, and the defendants were entitled to a dismissal of the complaint, u. The only things, which can be claimed to have been a waiver of this condition, are the acts of the sampler, Bolton, performed in consequence of instructions given him by Willetts. The only instructions, at the farthest, were to sample the cotton and re-store it in the name of Tupper & Beattie. And the only evidence of any authority in the matter, from them to Willetts, is in his answer to the eighth interrogotory, in which he says he wrote the words, “Re-store for account Tupper & Beattie,” by direction of Beattie, d. The amount of this is, that Beattie directed Willetts to have the cotton re-stored for the defendants ac-. count. This made Willetts the special agent of the defendants for that purpose, and Bolton could have no more authority than Willetts had ; and if either he or Willetts exceeded their authority, the defendants are not bound (1 Pars, on Cont. 40), and the plaintiffs and their agents are chargeable with knowledge of those powers, as they in fact were (Dows v. Perrin, 16 N. Y. 330 ; Smith v. Tracy, 36 N. Y. 86). ¡Neither Willetts nor Bolton, therefore, had any authority from defendants to do anything but re-store the lot of one hundred and nineteen bales. They had no authority to receive or re-store seventy bales or forty-two bales (Davenport v. Bucklamd, Hill & Denio, Supp. 75 ; Oliphant v. Mackey, 41 Barb. 446). e. The defendants, therefore, never having given authority to Willetts to restore a less quantity than one hundred and nineteen bales, have never waived the condition precedent of the weighing of the whole lot. f. W ith reference to the sampling, the case is even stronger. All the considerations which apply to the weighing, apply to it, and this additional one, that the sampling was never completed as to any bale. Sampling is composed of two acts. 1. The taking out of the sample from the bale; and, 2. The comparing of the sample with the sample by which the sale was made. The latter act is the more important; and, as appears by the evidence, it is performed by the broker who makes the sale.

      Wm. Henry Anthon, attorney and counsel for respondents, urged:—
    The general principles of law upon which the plaintiff relies to sustain the judgment are as follows:

      Contract of sale.

    The broker is the agent of both parties, and as such, may bind them both by signing the same contract for buyer and seller (Abbott, Ch. J., Grant v. Fletcher, 5 B. & C. 436). The bought and sold notes are a sufficient memorandum of the bargain within the statute of irauds, though there was no entry in the broker’s books (Groom v. Affalo, 6 B. & C. 117). But, in the present case, there was such an entry in the broker’s books. A broker, who is employed by both parties, the one to sell and the other to buy, is the agent of both, and a memorandum of the terms of sale made by him in writing, and delivered to the parties, is the best evidence of the contract (Merritt v. Clason, 12 Johns. 102 ; Allan v. Aguire, 5 N. Y. Leg. Obs. 380, Common Pleas, General Term).

      Delivery.

    When no time for delivery is specified in the contract of sale, the seller has a reasonable time therefor, and it is for the jury to judge from the circumstances of the case what time is reasonable (Terwilliger v. Knapp, 2 E. D. Smith, 86). Selecting goods, and putting them one side in the seller’s shop for the buyer, held to be a sufficient delivery (Brewer v. Salisbury, 9 Barb. 511). One who bought goods in a public store took an order on the storekeeper, and afterwards sold the goods by delivering the order to his vendee, who had them re-marked in his own name—held to be a sufficient delivery (Hollingsworth v. Napier, 3 Caines, 182). When, upon a sale of grain in store, in the city of Hew York, a measurer appointed by the board of measurers has measured the quantity, and the buyer has received an order of the storekeeper for the grain, the delivery is complete (Superior Court,1856, McCready v. Wright, 5 Duer, 571). When the articles are ponderous or bulky, or cannot conveniently be delivered manually, it is enough that they are put under the absolute power of the vendee, or that his authority, as owner, is formally acknowledged, or that any act is done importing a surrender on one side, and an acceptance on the other (1 East, 192; 5 Johns. 335 ; Story on Sales, 311 ; 12 Mass. 33 ; Stanton v. Small, 3 Sandf. 230, N. Y. Superior Court, 1849 ; Shindles v. Houston, 1 N. Y. 261).
    As long as anything remains to be done by the seller, to ascertain the value, quantity or quality of the goods, the delivery is not complete (Outwater v. Dodge, 7 Cowen, 85). A contract for the sale of goods is complete when nothing remains to be done by the seller to ascertain the identity of the property, or its quality or quantity (Olyphant v. Baker, 5 Den. 379 ; Crofoot v. Bennett, 2 N. Y. 258 ; Terry v. Wheeler, 25 N. Y. 520).
    Where property, which is the subject of a contract of sale, is destroyed by fire while the contract is in course of execution, the question upon which of the parties the loss of the property destroyed ought to fall, depends upon who had title to it at the time of its (destruction. If nothing remained to be done by the seller, the. loss falls upon the purchaser (Brady v. Wheeler, 4 Robt. 18).
    The judgment of the special term, upon the verdict of the jury, should be sustained.
   By the Court.—Monell, J.

The chief question in this case arises under the refusal of the court to charge the jury that the contract of sale was entire, and could not be satisfied by a delivery, or tender of delivery, of a quantity less than the whole. The evidence justified the finding of an actual delivery of seventy bales. They were taken from the warehouse, sampled vand weighed, and by the direction of the defendants, re-stored for their account. That constituted a delivery of the seventy bales. Before a like delivery of the remainder could be made, the warehouse and its contents was destroyed.

The bought and sold notes did not make this a completed sale, so as to vest the title to all the cotton in the defendants. Something remained to be done by the seller to ascertain the quantity, and by the purchaser to ascertain the quality. To vest the title in a purchaser, upon a sale unaccompanied by a delivery, nothing must remain to be done by the seller (Bradley v. Wheeler, 4 Robt. 18 ; affirmed on appeal, 44 N. Y. [5 Hand] 495). It is true that in one case (Crofut v. Bennett, 2 N. Y. 258) it is held, that merely having to weigh the commodity, to' ascertain the price of the whole, at the rate agreed upon, where the goods are otherwise clearly identified, will not prevent its being a complete sale; but I think the clear weight of authority is otherwise ; and if anything remains to be done by the seller, to ascertain its identity, quantity or quality, the title does not pass until all that is done (Bradley v. Wheeler, supra, where the cases are collected).

The commodity in this case was divisible and capable of a separate physical delivery? Each bale could be separately weighed and sampled, and as weighed and sampled passed over to the purchaser; but that circumstance did not make the contract divisible, or of itself, render it capable of a separate physical performance.

The fact, as found by the jury, that the sale was of a specific definite lot of cotton, and not of one hundred and nineteen bales of cotton of a certain quality, did not relieve the plaintiffs from the necessity of a complete performance, as a condition precedent to a recovery, unless such a performance was rendered impossible, or was excused by what happened after the partial delivery was made.

The verdict in this case cannot, in my judgment, be sustained on the ground that the title to all the cotton had become vested in the defendants, by the mere force of the bought and sold notes. The sale was of one hundred and nineteen bales of cotton of specific marks, at thirty-one and a quarter cents a pound. The quantity had to be ascertained by actually weighing ; and I think it is very clear that the weighing was to be done by or under the direction of the plaintiffs.

On this point, I am unable to distinguish this case from Joyce 'v. Adams, 8 JY. Y. 291. The bought and sold notes were, in terms, almost identical, and the cotton was, before delivery, destroyed by fire. That was held to be an uncompleted sale, and the title to the cotton as remaining in the seller. And the court put its decision on the ground that it was the duty of the seller to weigh the cotton, before the price could be computed, “ and until that was done, the cotton was not even ready or in a condition for delivery.”

It is clear, therefore, I think, that treating this as an entire and indivisible contract, the plaintiff cannot recover upon it, as a completed sale of the whole number of bales. And it also follows, that whether treated as a contract for the sale of a specific lot of cotton, or as merely a contract for the sale and delivery of one hundred and nineteen bales of a certain quality of cotton, in either case 'a delivery of any number of bales, less than the whole, would not be a performance of the contract.

What is an entire and what is a severable contract, is not clearly defined. Much depends upon the nature of the contract; something upon the intention of the parties. Where there is a purchase of different articles at different prices, at the same time, the contract must be several as to each article, unless the taking of the whole was rendered essential by the nature of the subject matter,, or by the act of the parties. But when the purchase is of a specific commodity, or of several of a specific commodity, at a fixed price, either for the whole or for each part, and there is no intention, expressed or implied, of a several performance, the complete fulfillment is a condition precedent.

The contract in this case was entire and indivisible, and required a full performance. It was for the sale and purchase of one hundred and nineteen bales of cotton, to be paid for on delivery, and a delivery of any number less than the whole would not be a performance of the condition.

In Russell v. Nicoll, 3 Wend. 112, a contract for the sale of five hundred bales of cotton, cash on delivery, was held to be an entire contract, imposing no obligation on the purchaser to receive less than the whole. And in Baker v. Higgins, 21 N. Y. 397, which was a contract for the sale of a specific quantity of brick at a stipulated price per thousand, it was held to be an indivisible contract. In that case,'there had been a part delivery and acceptance of such part by the purchaser, and the action was to recover for such part at the stipulated price, and it was held that the seller could not recover without showing a delivery, or an offer to deliver, the whole.

This is not a case of acceptance of a part of the goods while in the course of accepting the whole, so as to construe it into a waiver of an exact performance of the entire contract. No such waiver can be imputed to the defendants. Their demand was for the whole, and it was no fault of theirs that the delivery was stopped. They were ready to receive, and did no act which could be deemed a waiver of their legal right to refuse payment for the portion delivered until they had received the whole.

I have not regarded it as material whether the purchase in this case was of specific and identified cotton, or generally of the number of bales of cotton mentioned in the contract. The rule as to performance is the same in either case, and the defendants had the right to require a delivery of the whole number, and the plaintiffs could have no right of action for any part without showing a delivery, or an offer to deliver, the whole number of bales mentioned in the bought and sold notes.

Nor was performance excused in this case by the happening of the fire, by which all the cotton, including the seventy bales actually delivered, was destroyed. Performance is excused when it is prevented by the act of Grod or of the law, but the happening of a casualty, or inevitable accident or other unforseen contingency will not.

In Norton v. Woodruff, 2 N. Y. 153 the property was destroyed by fire before delivery, and the court held it did not excuse performance. And in Joyce v. Adams, supra, after a delivery of part the remainder was destroyed by fife. The purchaser demanded a delivery, and then brought his action to recover a deposit made upon the contract, and the court sustained the action.

The rule on this subject is very clearly stated by Mr. Justice Edwards in Hammond v. Bingham, 12 N. Y. 99, 107. He says, “ Where a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident or delay by inevitable necessity, because he might have provided against it by contract.”

The meritorious question in this case is, which of the parties shall suffer the loss. One or the other must, but I cannot see any reason why the defendants should be selected. They had no title to the whole property, so as to make it their loss; nor were they responsible for any part until there was a delivery of all.

The respondents’ counsel relied very much upon the case of Bradley v. Wheeler, supra, as settling the law of the case in his favor. But a moment’s examination of that case will show, that the facts were quite different, and that decision is put on the ground that nothing remained for the seller to do, and therefore it was a complete sale, vesting the title in the purchaser.

In conclusion, I am of opinion that the defendants were entitled to have the jury instructed as they requested, and that their exception to the refusal was well taken. They were also entitled to have their motion for a nonsuit granted.

For these errors the judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.


author: By the Court.—Barbour, Ch. J.

text:
    CHARLES H. SMITH, Plaintiff and Respondent, v. TIMOTHY J. COE, Defendant and Appellant.
    In an action brought upon an alleged breach of a covenant in a sealed lease, wherein the defendant covenanted that he would not at any time before June, 1867, negotiate for, or accept, or be interested in any lease of certain premises except from the plaintiff, under a forfeiture of ten thousand dollars, to be paid as liquidated damages- and not as a penalty,—Held, that the only question for the jury to decide was as to a breach of the covenant, as set forth in the lease, and if they found that defendant had violated the covenant, then they must also find a verdict for damages of ten thousand dollars, in favor of plaintiff, according to the stipulation in the covenant.
    The judge, before whom the case was tried, at the request of defendant, charged the jury to the effect that the plaintiff could not recover unless the jury should find that the defendant, by negotiating for some lease or interest in the premises otherwise than under the plaintiff, prevented or embarrassed the plaintiff in getting a new lease. To this portion of the charge the plaintiff excepted. The jury found a verdict for the defendant. Held, that the exception to this portion of the charge was well taken, and that a new trial should be granted on account thereof.
    Before Barbour, Ch. J., and McCunn and Spencer, JJ.

      Decided December 31st, 1871.
    Appeal from an order at special term, setting aside a verdict and awarding a new trial, upon a case and exceptions.

      S. P. Nash, for appellant.

      Charles H. Smith, for respondent.
   By the Court.—Barbour, Ch. J.

This action was brought upon an alleged breach of a covenant on the part of the defendant, contained in a sealed lease executed by and between the plaintiff and himself whereby he agreed that he would not, at any time before June, 1867, negotiate for, or accept, or be interested in, any lease of certain premises, except from the plaintiff, under the forfeiture of ten thousand dollars, to be paid as liquidated damages and not as a penalty.

Upon the trial, after the proofs were closed, the court was the counsel for the to charge the jury that the damages were liquidated at ten thousand dollars, and that the plaintiff was entitled to recover that sum, if the jury were satisfied from the evidence that the defendant, before June, 1867, himseif or by another, negotiated for, accepted, or became interested in, any lease of the premises described in the lease. The judge refused that request, but told the jury, fully and in detail, what the defendant had covenanted that he would abstain from doing, as above, and instructed them, in effect, that the only question for them to decide was whether there had been a breach of that covenant, and that, if they found the-defendant had broken such covenant by confederating with or assisting another to obtain a lease of the premises, the plaintiff would be entitled to a verdict for ten thousand dollars with interest. Upon the defendant’s request, the learned judge also charged that the plaintiff could not recover, unless the defendant, by negotiating for some lease or interest in the premises, otherwise than under the plaintiff, prevented or embarrassed the latter in getting a new lease. Exceptions were taken by the plaintiff’s counsel to that charge, as well as to the refusal of the court to charge as requested by him. A verdict was rendered for the defendant; whereupon a motion was made on the part of the plaintiff, before another judge at special term, upon a case and exceptions, for an order setting aside the verdict and directing a new trial. That motion was granted, and the case comes here upon an appeal from the order thereupon entered.

The court charged the jury, in substance, all that was asked for by the plaintiff in the request which was refused; and that, too, as I understand it, without any qualification whatever. The exception in that regard, therefore, must be overruled; for an exception will not lie to a refusal to charge in the exact words of a request where its substance is fully complied with. x

The exception to that portion of the charge which was made at the request of the defendant, however, was well taken. It was not necessary for the plaintiff to prove upon the trial that the defendant’s violation of his covenant prevented the former from obtaining a new lease, or in any way embarrassed him in his efforts to accomplish that object. Indeed, it would, probably, have been difficult, if not impossible, for him to do so, or to show that he had sustained any specific injury which could be computed in money, because of the breach of the covenant; and it may have been for that very reason that the defendant was required to stipulate in the lease, that, if his covenant should be broken, he should forfeit and pay to the plaintiff a sum certain as liquidated damages. However that may be, it was sufficient that such stipulation was contained in the lease, and that it was operative according to its terms. Upon proving a breach, therefore, the plaintiff was entitled to a verdict for the amount the defendant had covenanted to pay him, in that case, as liquidated damages ; and it follows that the charge which directed the jury that the plaintiff was not entitled to recover unless the defendant had, by a breach of his covenants, prevented or embarrassed him in getting a new lease, was erroneous. For that reason, alone, the order appealed from ought to have been granted, and should now be affirmed, with costs.


author: By the Court.—Freedman, J.

text:
    GEORGE F. GRAY, Plaintiff and Appellant, v. JAMES FISK, JUN., and others, Defendants and Respondents.
    Referee, setting aside Report of. '
    1. For irregularity, or impropriety of conduct on the part of the referee.

      a. Improprieties committed "by a referee with the unsuccessful party constitute no ground for setting aside the report on the application of the unsuccessful party.

      b. Here suspicion or surmise of improper conduct with the successful party, founded on previous improprieties with the unsuccessful party, will not justify the setting aside of the report on the application of the unsuccessful party.
    Before McCunn, Jones and Freedman, JJ.

      Decided December 31, 1871.
    Appeal from judgment entered upon the report.of a referee, and from an order of the special term denying plaintiff’s motion to set aside the referee’s report upon the alleged grounds:
    1. That the report was procured by improper means;

      2. That it was different from what the referee had told plaintiff’s counsel it would be ; and,
    3. That the referee having changed his opinion in a manner that was improper, renders the report invalid.
    The facts sufficiently appear in the opinion of the court.

      Titus B. Eldridge, counsel for appellant.

      Field & Shearman, attorneys, and Dudley Field, of counsel for respondent.
   By the Court.—Freedman, J.

Plaintiff’s exceptions to the admission and rejection of evidence upon the trial are clearly untenable.

All other questions arising upon the appeal from the judgment and the order denying plaintiff’s motion to set aside the report of the referee resolve themselves, upon a critical examination, into mere questions of fact. Most of these have been determined against the plaintiff upon conflicting testimony, and the rest, to wit, those upon the motion, were evidently decided adversely to him, because of his failure to substantiate the charges preferred. Upon the whole case, -ye are unable to perceive a sufficient reason to interfere with the determination actually made. The supplemental affidavit sworn to by plaintiff’s counsel on the first day of December, and offered to be handed up as an additional paper in support of the motion, should perhaps have been received by the court below, and we have, for that reason, treated it as part of the case made by the plaintiff, and given to the facts therein alleged due consideration, without being able to arrive at any other conclusion than the one already stated. Whatever improprieties the referee has been guilty of, were, according to the evidence, committed with the attorney of the party dissatisfied with the report, and there is no evidence from which, in the face of the explicit denial of the referee, the law .would tolerate the inference that undue influence had been brought to bear upon him by the party in whose favor he finally decided. The law never presumes a wrong. Undue influence must consequently be affirmatively established by the party making the charge. In each of the cases cited by plaintiff (4 How. Pr. 253 ; 9 Id. 1 ; 12 Id. 297), it clearly appeared that the referee had been guilty of some irregularity with the party in whose favor he finally reported, and no case can be found in which a report was set aside, as demanded by considerations of public policy, upon the sole ground of improper transactions between the referee and the unsuccessful party. On the contrary, in Ayrault v. Sackett, 17 How. 507. in which case the referee had come to a'conclusion m his own mind, which he expressed to defendant’s counsel, and which he committed to paper in the form of an opinion, it was distinctly held by the general term of the supreme court that until a referee has signed his report and notified the party entitled to it of that fact, the case is under his control and he may reconsider his decision and change it. While, therefore, we concede that for the purpose of maintaining the purity of the administration of justice, the report of the referee may and should be set aside upon even slight proof of improper dealings between him and the successful side, provided- such dealings are shown to have had a tendency, no matter how remote, to influence the action of such referee in favor of such party, we cannot go to the length of holding that a report can be set aside upon mere suspicion or surmise founded upon previous improprieties with the unsuccessful side. A rule of this strictness would hold out an incentive to a party anticipating an unfavorable report to inveigle the referee into the commission of some impropriety of speech or action, with the view of using the same as the foundation for the subsequent impeachment of his report, in case that should prove unfavorable.

For the same reason the rule has always been, in the case of a jury, that if, before they be agreed on their verdict, they eat or drink at the charge of the plaintiff, if the verdict be given for him, it shall avoid the verdict; but if it be given for the defendant,' it shall not avoid it, and sic e converso. And if, after they be agreed on their verdict, they eat or drink at the charge of him for whom they find, it shall not avoid the verdict (Coke upon Littleton, 227 b).

The change of mind on the part of the referee in this case was not, therefore, of a character to render the subsequent report invalid, but merely reviewable upon appeal from the judgment.

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


text:
    GEORGE ACKERMAN, Plaintiff, v. JOHN D. VOORHIES, Defendant.
    Contbact to manufacture and deliver articles.

    1. Rescission of by notice.

      a. A notice to the manufacturer by the employer, that if the articles were not delivered by a certain limited time, he would make a contract with other parties, operates, after the expiration of the limited time, as a rescission by the defendant of the contract, so far as to amount to a refusal to accept a delivery under it.
    1. Subsequent coni/ract with one employed by a manufacturer to do the worlc.

    1. Such subsequent contract made by the employer of the manufacture, and a delivery under it does not impair the force of the notice to the manufacturer.
    3. Rights of manufacturer after said rescission.

    1. His only remedy is an action for damages for a breach of the contract.
    Before Monell, McCunn and Jones, JJ.

      Decided December 31, 1871.
    Exceptions ordered to be heard at general term.
    In January, 1868, the firm of Banta & Brinkerhoff made an agreement with the defendant whereby they were to furnish him two lots of circus figures, one lot for four hundred and seventy-five dollars, to be finished in .thirty days, and the other for six hundred and twenty-five dollars, to be finished in sixty days.
    Banta & Brinkerhoff employed a Mr. Hamilton to make the figures.
    On the 12th of February,1868, defendant gave notice to Brinkerhoff, who was then foreman for Banta (the firm of Banta and Brinkerhoff had previously been dissolved, and Brinkerhoff had sold out the accounts of the firm to Banta) "that he would give Banta two days to deliver the work in, and if it was not delivered in that time he would make a contract with other parties to deliver. After the expiration of the two days, defendant made an agreement with said Hamilton. Hamilton agreed to furnish said figures to the defendant for a certain price to' be paid to him by defendant, and defendant agreed to take said figures from Hamilton and pay him the price agreed on therefor.
    Under this contract between Hamilton and defendant, Hamilton delivered the figures to defendant and received from him the stipulated price therefor.
    Afterwards Banta & Brinkerhoff made an assignment to plaintiff as follows :
    Hew York, May 20th, 1868.
    Mr. John D. Voorhies,

      To Banta & Brinkerhoee, Dr.

    Carvers and Turners, 582 Hudson street.
    Jan’y 24. Contract for circus figures.............$475

      “ 31. Contract for circus figures............. 625
    (Indorsed) $1,100
    For value received, we hereby sell, assign, transfer, and set over unto George Ackerman, the within bill or claim, and empower him to demand, collect, receive, and sue for the same.
    May 20th, 1868. John W. Banta.
    (Signed,) Albert J. Brinkerhoee.
    Banta & Brinkerhoee.

      Plaintiff then brought this action, setting forth in his complaint the above contract made between defend - ant and Banta & Brinkerhoff, alleging that Banta & Brinkerhoff made and delivered, or caused to be made and delivered to the defendant the figures called for by said contracts, and in all things complied with and completed said contracts ; that the price agreed to be paid had not been paid by the defendant, although the same had been demanded; averring the assignment to plaintiff, and alleging that defendant is indebted to the plaintiff in the sum of one thousand one hundred dollars, and demanding judgment for the said one thousand one hundred dollars with interest and costs.
    Defendant, by his answer, admitted the making of said agreements with Banta & Brinkerhoff, but denied each and every of the other allegations of said complaint, and alleged that said Banta & Brinkerhoff, although often requested by defendant to perform the said agreements, had always neglected and refused so to do.
    On the trial the facts above stated were fully established, there being no conflicting testimony concerning them.
    At the close of the case the defendant moved to dismiss the complaint on the ground that the plaintiff had failed to prove a delivery under the contract, and that it appeared that the contract was revoked and rescinded at the expiration of the time.
    The motion was denied, and defendant excepted.
    Defendant then asked the court to submit the question to the jury—Whether this work was delivered by the plaintiff’s assignor in accordance with the terms of the contract? which was denied; and defendant excepted.
    Defendant also asked the court to submit to the jury the question—Whether the defendant gave notice to Banta & Brinkerhoff, at the expiration of the thirty days from the making of the first contract, that unless the work was delivered within the time, he should proceed to get the work from other parties ? which was denied, and defendant excepted.
    Defendant also asked that the whole case should be submitted to the jury, which was denied and defendant excepted.
    The court directed a verdict for the plaintiff for one thousand two hundred and forty-seven dollars and seventy cents ; to which defendant excepted.
    The court directed the exceptions to be heard in the first instance at the general term ; all proceedings on the part of the plaintiff under .the judgment to be stayed in the mean time.

      James N. Culver, attorney and counsel for plaintiff,—Urged :
    First. From the testimony of Banta & Brinkerhoff, it appears that Banta & Brinkerhoff employed one Charles Hamilton to make the carved wooden figures, and Yoorhies knew it, mentioned in the complaint, and deliver the same when completed to John D. Yoorhies. The evidence further shows that the figures contracted for were furnished by Hamilton; and they were delivered by Hamilton to Yoorhies, and accepted by him; and that some were finished in February, and they were afterward seen on the chariots in the circus company, where they were designed to be used.
    Second. It appears from the evidence that the first of said contracts was made on the 24th day of January; ' that it was to have been finished and delivered within thirty days—what number of the figures does not appear. Yoorhies himself testifies that on the 12th of February, eleven days before the expiration of the time limited in the contract, he, Yoorhies, said he would give two days longer to have the figures delivered; and that in a day or two after the two days had expired, he made an arrangement with Hamilton. That is, seven or eight days before the expiration of the time agreed upon, Yoorhies assumes to repudiate his agreement and make a new arrangement with Hamilton; and he now asks this court to sanction that transaction. When called upon to pay the bill to Banta & Brinkerhoff, defendant said he had settled the bill or the matter. He did not say he did not owe the bill. Banta bought Brinkerhoff out 1st February, 1868.
    Third. The denial of defendant’s motions and the refusals to submit to the jury as requested, were fully warranted by the facts of the case as proved. There was no question of fact to go to the jury. What Banta and Brinkerhoff swore to was not contradicted by Yoorhis, nor was Yoorhies contradicted.

      Wm. S. Hascall, defendant’s attorney, and Francis Lynde Stetson, counsel, urged :—
    The plaintiff failed to prove a delivery under the contract, which it appears was rescinded and revoked, and the evidence to this effect should have been allowed to go to the jury. Of course, a failure to prove such a delivery is fatal to the plaintiff’s supposed right of action. 1. The contract called for a delivery of the first work within thirty days. The work was not forthcoming at the expiration of that time. 2. Upon this failure of Banta to deliver his work in accordance with the contract, Yoorhies elected to rescind the contract; which was also a question to be passed upon by the jury. Yoorhies, after the expiration of the contract time, gave notice to Brinkerhoff (who swears that he communicated it to Banta) that unless the work was delivered within two days, he would have to resume it himself, and that he should make a contract with other parties to deliver ; the work was not forthcoming, and' he made such a contract. Hot only was there a failure to show a delivery within the fixed time, but it was presented as a question for the jury, whether Banta ever made any delivery at all. The plaintiff claimed that if Voorhis ever received the goods of Hamilton, he received them of Banta, as principal of Hamilton. This could b.e, only if the relation of principal' and agent continued to exist between these parties down to the time of delivery by Hamilton. The law and the facts both leading to the conclusion that the contract between Banta and Hamilton was rescinded, no claim can be made that any subsequent delivery by Hamilton was made under Ms contract with Banta.
    The law does not hold itself out as a means of profit to litigants, for this would encourage litigation, which it is the interest of the State should cease. Yet, according to the Chief Justice, the plaintiff is to recover all the contract price for the work, and to escape all-the charge and burden of furnishing it. If the plaintiff was entitled to recover anything, it was only the difference between the' price which Banta had agreed to pay Hamilton, and the price which he was to receive from Yoorhies. This was the anticipated profit which induced Banta to make the contract, and there is no reason that the court should increase it.
   By the Court.—Monell, J.

I think the notice given by the defendant to the plaintiff’s assignors, to the effect, that if the manufactured articles were not delivered within two days thereafter, he would make a contract with other parties, operated, after the expiration of the limited time, as a rescission by the defendant of the contract; and thereafter, the only remedy upon it, was an action for damages for the breach The delivering by Hamilton to the defendant, was not intended to be, nor was it, a delivering by the plaintiff’s assignors. It was made under a new contract, between Hamilton and the defendant, after the defendant had rescinded the previous contract. Hamilton’s relation to the plaintiff’s assignors, was, in the first instance, that of an employee to do the work. He was not bound to deliver without payment, and he accordingly refused to deliver. Thereupon he made a new contract with the defendant, and the only delivery was under that contract.

Whether Hamilton rendered himself liable to the plaintiff’s assignors for any supposed breach of his duty towards Ms employers, it is not necessary to inquire. He saw fit to make a new contract with one of the original contracting parties, and to fulfill that contract; and, it seems to me, the plaintiff’s assignors cannot claim that such fulfillment enured to their benefit, and gave them a right of action for the price of the articles.

Whether the defendant could wholly rescind the first contract, is not material. They did so far rescind, as to amount to a réfusal to accept any delivery under it; and the acceptance afterwards, under the new contract, was not an acceptance from the plaintiff’s assignors.

I am of the opinion, therefore, that the action for the price of the goods failed, and that the motion to dismiss the complaint on the ground that no delivery under the contract had been proved, should have been granted.

The exceptions should be sustained, the verdict 'Set aside, and a new trial ordered, with costs to the defendant to abide the event.


text:
    WILLIAM R. CHAMBERS, Plaintiff and Respondent, v. J. SILVIE DURAND, Impleaded, &c., Defendants and Appellants.
    Where an order of arrest is granted upon a charge of a fraudulent disposition by the defendants of their property, which is supported on the part of the plaintiff by very little proof, and the facts and circumstances claimed to present such proof are slight, and on a motioti. to vacate said order, the allegations of the plaintiff are expressly and distinctly denied by the affidavits on the part of the defendant, the order of arrest should be vacated.
    Affidavits read on the part of the plaintiff on the motion, claiming the right to the order of arrest on a different ground than first alleged,— namely, on account of a fraudulent contraction of the debt, with the plaintiff’s assignor,—cannot be used in support of the order, although if used in the first instance and not afterwards rebutted by the defendant, would sustain the order. The order must stand or fall upon the original cause of arrest and the affidavits establishing the same, with such corroborative proofs thereof as may be furnished by the plaintiff on the motion to vacate the order. As to any allegations of new grounds or causes of. arrest, the defendant is entitled to an opportunity to meet the same.
    If the plaintiff fails to sustain his first grounds of arrest, and yet by his proofs on the motion establishes another cause of arrest, the order should be vacated without prejudice to a new motion for an order of arrest on the part of plaintiff on notice to defendants.
    Before Monell and Jones, JJ.

      Decided December 31, 1871.
    Appeal from an order denying a motion to vacate an order of arrest.

      Frederick G. Anderson, for appellants.

      John H. Cornell, for respondent.
   By the Court.—Monell, J.

The only allegation in the affidavit, upon which the order of arrest was obtained, is of a fraudulent disposition by the defendants of their property. There is no allegation of any fraud in contracting the debt.

The charge of a fraudulent disposition of their property is supported, on the part of the plaintiff, by very little proof; and the facts and circumstances claimed to furnish such proof, are slight in the extreme. They consist of an unperformed promise to pay; a false representation of a sale, and an apparent absconding of the defendant. Some, and the most material of these averments, are stated to be upon information merely, which will not do ; and they are not corroborated by any other proof.

All the allegations in the plaintiff’s affidavit are expressly and distinctly denied by the defendant.

Upon the motion the plaintiff furnished an additional affidavit, corroborating his statement of the defendant’s promise to pay, but failed to otherwise support his charge of fraud.

The affidavit,' however, of the plaintiff’s assignor, which, for the first time, was read on the motion, alleges a fraudulent contraction of the debt. This puts the right to arrest on a different ground ; and had it been alleged in the first affidavits, or used in obtaining the order of arrest, it would have had to have been met by the defendant.

Without deciding whether a new cause of arrest can be alleged, in support of an order granted for another and different cause, I am satisfied that in this case the defendant should have an opportunity to meet such new allegations. And as I am of opinion that the plaintiff has wholly failed to sustain his first ground of arrest, the order should be set aside, but without prejudice to a new motion for an order on notice to the defendant.

I do not regard this as a case of mere conflict of evidence, but rather as a case where the plaintiff’s original facts are extremely weak, and where on these facts the clear weight of the evidence is with the defendant. Whether, upon a new motion, the new charge can be used against the defendant, need not now be determined.

Order reversed without prejudice, &c.


text:
    SAMUEL H. DOLLARD, Plaintiff and Appellant, v. ROBERT L. TAYLOR, Defendant and Respondent.
    An appeal lies from an order denying a motion to appoint a receiver in proceedings supplemental to an execution, and is subject to review at general term under the decision of the court of appeals in the Matter of Duff (41 How. Pr. 350).
    The exercise of a sound discretion by the judge in refusing to appoint a receiver may be reviewed by the general term.
    Before Monell and Spencer, JJ.

      Decided December 31, 1871.
    Appeal from an order denying a motion to appoint a receiver in proceedings supplemental to an execution.

      E. Cook, for appellant.

      J. H. Choate, for respondent.
   By the Court,—Monell, J.

The recent decision of the court of appeals in the Matter of Buff (41 How. Pr. 350) has disturbed the heretofore supposed rule that no appeal lies from a discretionary order. In that case it is held, that the appellate court may review all orders which affect a substantial right; although the granting of such orders rests in the discretion of the court.

Under the authority of that case, I am of opinion that the order from which the appeal is here taken, may be reviewed by the general term. It was an order made in a summary application, in an action after judgment, and affected a substantial right. Code, § 344.

The order being, therefore, open to review, it remains to be' seen whether there was an exercise of a sound discretion in refusing to appoint a receiver.

The defendant, upon his examination under the supplemental order, had testified that in October, 1867, he had made an assignment of all his property, for the benefit of his creditors; and there was no proof that he had since acquired any other property. He, however, stated his belief that there ought to be assets belonging to him in the hands of the assignees,'after all claims against the estate were settled, unless the property was sacrificed. It was clear, therefore, that there was no tangible property of the judgment debtor to pass to a receiver, and hence there was nothing for a receiver to receive. The possibility of there being a surplus over the debts which might come to the debtor, could not arise until all the debts, including the plaintiff’s, had been paid by the assignees; and nothing from that source could come to a receiver after the judgment had been satisfied.

But it was claimed by the appellant that there was evidence that the assignment was made with the ifltent to hinder and defraud creditors ; and, therefore, a receiver was proper, if not necessary, to reach by action the assigned property, or its avails.

Without examining the ground on which the allegation of fraud rests, it is enough to say, that a receiver is not necessary for the purpose of attacking an assignment. He is, when appointed, clothed with the requisite authority, and may institute proceedings to recover the property of the judgment debtor, wherever it may be, or under what pretext it may be held ; and for that purpose may seek, by action, to avoid a fraudulent assignment. He stands not -merely in the place of the debtor, but represents the creditor, and thus may impeach the fraudulent sales of the debtor (Porter v. Williams, 9 N. Y. 142).

But there is nothing in this respect that a receiver might do that the creditor himself cannot do. He may, upon the return of his execution unsatisfied, proceed, in his own name, by a creditor’s suit, to reach the property of the debtor which he alleges to have been fraudulently transferred ; and in such suit he may, in the proper exercise of the discretionary power of the court, have a receiver of the transferred property. The remedy, under the code, of a supplemental examination and receiver, is merely cumulative, and does not take away the remedy provided by the Revised Statutes (2 R. S. 173, § 38 ; Taylor v. Persse, 15 How. Pr. 417 ; Hammond v. Hudson R. I. & M. Co., 20 Barb. 378).

We cannot see, therefore, any necessity for a receiver in this case, and think that a sound discretion was exercised in refusing to appoint one.

The order appealed from should be affirmed.


text:
    HENRY FRECKING, Plaintiff and Appellant, v. ADOLPH ROLLAND and REBECCA ROLLAND, Defendants and Respondents.
    Where the court on a trial directed the jury to find a verdict for the defendant, and the plaintiff made no request to the court to submit any question of fact to the jury, the objection cannot be afterwards taken on appeal. Upon an appeal in a case where no such requests were made to the court below, the only question for consideration is whether, upon the unconfroverted facts, the direction of the court was not erroneous. But where the evidence was at all conflicting, it cannot be objected for the first time on an appeal that the case should have gone to the jury. These cases approved: O’Neil ®. James, 43 W. T. 84; Burge ®. Robinson, 5 Robt. 1 and 31.)
    In order to charge the separate estate of a married woman, with a contract made and entered into by her, it must clearly appear, from the contract itself, that it was her intention so to charge her separate estate or the consideration or money obtained by and through the contract must be for the direct benefit of the estate itself. These cases cited and approved: Tale ®. Dederer, 18 JV. Y. 365, and 83 M Y. 450; White ®. MeNett,’33 W Y. 371; Owen ®. Cawley, 36 AT. Y. 600; Ballin ®. Dillaye, 37 JST. Y. 35; Corn Ex. Ins. Co. ®. Babcock, 43 N. Y. 613.
    Before Monell and Spencer, JJ.

      Decided December 31, 1871.
    Appeal from a judgment.
    The action was brought against the defendants, hnsband and wife, to recover upon the following promissory note :
    $1000. New Torlc, Novbr. 17th, 1870.
    Thirty days after date we promise to pay to the order of Mr. Henry Frecking the sum of One Thousand Dollars, at 401 Fifth Street, 1ST. Y. city, for value received.
    U. S. Revenue Stamp BOc. cancelled.
    A. Holland.
    B. Holland.
    Due Decbr. 20th, 1870.
    The defendants answered separately. Hebecca Holland alleged in her answer:
    I. That at the time of the making and delivering of the note set forth in the complaint, she was and still is a married woman, the wife of the defendant, Adolph Holland.
    II. That the note was made solely for the accommodation of said Adolph Holland, and without any consideration ensuing from said Holland,, or any one else, to Mrs. Holland.
    On the trial, before Mr. Justice Freedman and a jury, Mrs. Holland established by proof the allegations of her answer, and the court directed a verdict in her favor.
    The plaintiff appealed.

      D. M. Porter, for appellant.

      L. C. Waehner, for respondent.
   By the Court.—Monell, J.

There was perhaps some very slight evidence, that the plaintiff made the loan to Mrs. Holland. But it was so slight, and was so distinctly contradicted by her, that it was probably not error to withhold that question from the jury. But if it was otherwise, the objection cannot be taken now. There was no request made at the trial to submit any question to the jury, and it is well settled, that unless such request is made, the objection cannot afterwards be taken (O’Neil v. James, 43 N. Y. (4 Hand) 84). This rule, now so well established, is entirely in accord with the views expressed in Bunge v. Robinson, 5 Robt. 1 and 21. Mr. Justice Joxes there says, where there are no requests, the only question for the court is, whether, upon the uncontroverted facts, the direction was not erroneous. But where" the evidence is at all conflicting, it cannot be objected for the first time on appeal, that the case should have been given to the jury-

The only remaining question, therefore, must be examined without reference to any of the disputed facts, and as if the jury had found, that Mrs. Holland signed the note, merely as surety for her husband.

Looking at the case in that light, it cannot be distinguished from Yale v. Dederer (18 N. Y. 265, and 22 Id. 450). In that case, it was clearly and distinctly held, that in order to charge her separate estate, by a married woman, the intention to do so must be declared in the very contract which is the foundation of the charge ; or the consideration must be obtained for the direct benefit of the estate itself. That case has not only not been disturbed by any subsequent case, but has been expressly recognized and approved by all of them (White v. McNett, 33 N. Y. 371 ; Owen v. Cawley, 36 Id. 600 ; Ballin v. Dillaye, 37 Id. 35 ; Corn Ex. Ins. Co. v. Babcock, 42 Id. (3 Hand) 613).

As Mrs. Holland expressed no intention of charging her separate estate, and there was no proof that the money was obtained for the benefit of her separate estate, neither she nor her estate is liable, and the direction of the court below was correct.

Judgment affirmed.


author: Freedman, J. Monell, J. (Concurring.)

text:
    PATRICK CARRAHER, Plaintiff and Respondent, v. CHRISTOPHER A. CARRAHER, Defendant and Appellant.
    The practice under the General Supreme Court Rules 49 and 50, considered and laid down.
    If the appellant fails to make his case, or to have it settled or filed within the time prescribed by the rules, the respondent should apply on notice to the special term to have the case declared abandoned. He should then apply for an order to put the case on the o general term calendar, and upon these orders, and on an affidavit of the due service of the appeal papers, and on notice to the appellant for the earliest motion day in term, and also upon an affidavit that since the entry of these orders a reasonable time has elapsed for the appellant to procure the printing of the appeal papers, which he is still entitled to use, and that no printed copies have been served, the respondent should move to strike the cause from the calendar of the general term and for judgment of affirmance.
    . This practice is in harmony with the decisions of this court (in 36 How. Pr. 366; 2 Sweeney, 696; and Id. 701), and also with the general rules of practice applicable to all courts, and the additional special rules in force in this court.
    Before Barbour, Ch. J., and Monell and Freedman, JJ.

      Decided December 31, 1871.
    Motion to dismiss an appeal for want of prosecution. i
    . The judgment was entered and roll filed and appeal taken therefrom by the defendant in J une, 1870. In November, 1S71, the respondent on motion at special term obtained an order declaring the case on appeal abandoned, and he now moves upon the order and upon the judgment roll to dismiss the appeal.

      'Norwood & Goggeshall, for respondent, and for the motion.

      Jacob A. Gross, for appellant and opposed.
   Freedman, J.

Although the respondent, in conformity with the practice laid down by this court in “Phelps v. Swan, 2 Sweeny, 696, has obtained an order of the special term declaring the case upon appeal abandoned, it by no means follows that upon a production of a certified copy of that order and a mere reference to the judgment roll on file in the office of. the clerk, we can, on a motion to dismiss, dispose of the appeal in this case against the objection of the appellant. The decision of the case referred to does not go to this extent. The real question involved therein was whether the general term has the power to decide whether or not- an appellant has lost his right to make a case or bill of exceptions, or to annex the same to the judgment roll, and if it has, whether it. will, as matter of practice, exercise it. We held that these matters should be determined at special term, and intimated that, after such determination against the appellant, the general term may, on a subsequent motion to dismiss, founded in part upon such order of the special term, determine that the record, without a case or bill of exceptions, presents no question which is the subject of an appeal, and consequently dismiss the appeal. This may undoubtedly be done whenever, upon the production and submission of the record, -it should clearly appear that the-decision below is not appealable. Such motion to dismiss the appeal may perhaps also be granted if the appellant concedes that, having lost' his right to make or annex a case or bill of exceptions, he has no questions left to present to the consideration of the general term. But it should not be granted if the appellant objects and insists upon Ms right to be heard upon the judgment roll as it stands. He is not precluded from, doing that, and consequently is still at liberty to raise such questions as appear upon the face of the judgment roll, and might formerly have been raised on a writ of error (Brown v. Hardie, 5 Robt. 678 ; Berger v. Dubernet, 7 Id. 1).

In order to be in a position, however, to do so, he ‘ must print and serve tlie papers intended to be used on the hearing of the appeal according to the requirements of General Rule 50 (Rule 43 of 1858) at least eight days before the commencement of the general term sitting after the entry of the order made by the special term declaring the case abandoned, and if he neglects to do so the respondent may, by special order, put the cause upon the calendar of the general term and move, on any of the. motion days in term, that the cause be stricken from the calendar and that judgment be rendered in his favor (Rule 50). Such motion on the part of the respondent must be founded on a proper notice to the appellant, on the order of the special term declaring the case abandoned, and an affidavit showing that since the entry of the last-named order a reasonable time has elapsed to procure the printing of the appeal papers, which the appellant is still entitled to use, and that no printed copies thereof have been served as required by the rule.

The practice, as here laid down, is in entire harmony with the decisions of this court, reported in 36 How. 366, in Phelps v. Swan, 2 Sweeny, 696, and Ward v. Central Park, N. & E. R. R. Co., 2 Sweeny, 701, as well as with the general rules applicable to all the courts and the additional special rules in force in this court, and should be strictly followed by a respondent, who means to get rid of the appeal out of its regular course and order and against the objections of the appellant.

Respondent’s motion for a dismissal of the appeal must, therefore, be denied.

Monell, J. (Concurring.)

— Without questioning the power of the court to dismiss the appeal upon this motion, which it probably may do if it will take the trouble to examine the judgment roll, to see if there is any error in it, the practice of entertaining motions of this nature is attended with so much inconvenience and labor that it ought not to be followed, especially as there is another remedy quite as effectual, and which is free from the objection above stated.

The respondent was right in having the “case” declared abandoned. That left nothing but the judgment roll to be reviewed. But instead of moving to dismiss the appeal, he should have moved for an affirmance of the judgment, as provided in Rules 49 and 50.

The practice under these rules is as follows: If the appellant fails to serve his case, or to have it settled, or filed within the time prescribed by the rules, the respondent should apply, on notice, to the special term, to have the case declared abandoned. He should then apply for an order to put the case on the general term calendar; and on an affidavit of the non-service of the appeal papers, and on notice to the appellant for the earliest motion day in term, move to strike the cause from the calendar and for judgment of affirmance.

This practice is simple and effectual, and spares the court the labor of examining, upon a motion, a manuscript judgment roll, to see if there are any questions arising upon it for review.