author: Allen, J. Gardiner, Ch. J.

text:
    Eno against Crooke.
    An assignment of a thing in action is presumed to have been upon sufficient consideration, unless the contrary appear; and in such case no trust results thereupon for the benefit of the assignor.
    Where a judgment against the principal is, at the request of the surety, who has paid the debt and is entitled to subrogation, assigned by the judgment creditor to a third person, the legal effect of the transaction is the same as if the surety had taken an assignment to himself, and had then assigned to such third person.
    Where, therefore, a bank holding a judgment against A as principal, and another against B as surety upon the same debt, upon'satisfaction of the latter judgment out"o? the property of B, af~his request assigned to C the former judgment, and 0 soon after made a general assignment of his property for the benefit of his creditors; in an action upon the last mentioned judgment by Cjs assignee, it was Held, that in the absence of proof of the terms of the assignment by the bank, or of any consideration therefor between B and C, it was to be presumed that such assignment was made upon a sufficient consideration, and was intended to vest the title in him for his own benefit, and not as a trustee for B; and that the burden rested upon the defendant ofshowing the contrary. "*

      Held, also, that as the bank had no beneficial interest in the judgment in suit after satisfaction of the judgment against B, its assignment of the former to C was not within the prohibition (O. 8., 691, § 8) of the transfer by a bank of any portion of its effects, exceeding $1000 in value, without a resolution of the board of directors.

      It seems that such a transfer can be impeached only by the corporation, or its stockholders or creditors, for the want of the previous action of the board of directors. Per Allen, J.

      This was an action on a judgment for $1392.71, in favor of the Farmers and Manufacturers’ Bank, against the defendant as maker of certain promissory notes, and was commenced in the supreme court in January, 1851. At the trial before Mr. Justice Barculo, a jury being waived, at the Dutchess circuit in June of that year, it appeared that the bank had held also another judgment against one Cyrus M. Smith, as endorser of the same notes upon which the judgment in suit was recovered; that the judgment against Smith had been collected by the bank out of his property; that afterwards, the bank, at the request of Smith, assigned the judgment in suit to one Bonesteel; and that Bonesteel, becoming insolvent, made a general assignment of his property to the plaintiff and one Buggies for the benefit of his creditors. Buggies died, and the plaintiff brought this action as his survivor. ■
    The written assignment from the bank to Bonesteel had been lost, and its terms did not appear. The witness by whom it was proved said that he presumed it was executed by the cashier, under the seal of the corporation. There was no evidence as to the nature of or the consideration for that assignment, as between Smith and Bonesteel.
    Upon this state of facts, the following objections were taken to the right of the plaintiff to recover: 1. That it did not appear that the judgment was ever assigned by the bank to Bonesteel; 2. That it did not appear that the board of directors ever authorized the assignment to Bonesteel, the value of the judgment being over $1000; 3. That if the judgment was assigned to Bonesteel, it was. in trust for Smith, and could not therefore be assigned by Bonesteel for the benefit of his creditors; 4. That there was no evidence of the assignment of the judgment specifically to the plaintiff and Buggies; 5. That Bonesteel holding the judgment in trust, it did not pass under his assignment; 6. That Smith having paid the judgment recovered against him for the same indebtedness before the transfer of this judgment to Bonesteel, the latter judgment was thereby extinguished, except as to costs. The court refused to dismiss the complaint upon the above grounds, or to decide as requested, and the defendant excepted. Judgment for the whole amount demanded, which was affirmed at general term. The defendant appealed to this court.

      L. Tremain for the appellant.
    I. The assignment to Bonesteel was to a trustee for the benefit of Smith, and Bonesteel was the proper person to bring this action, if any action can be sustained on the judgment. (Code of 1852, ^ 111, 112, 113; Lane v. Columbus Insurance Company, -2 Code 11., 65; Erickson v. Compton, 6 How., 471; 2 R. 3., 450, § 39, sub. 10, 3d ed.; Grinnell v. Schmidt, 2 Sandf. S. C. R., 706.) A judgment is a thing in action arising out of a contract. (Maguire v. Gallagher, 2 Sandf. S. C. R., 402.)
    II. The judgment having been assigned to Bonesteel in fact, although perhaps not in form, as trustee for Smith, it did not pass to his assignees, and was not his property within the meaning of the assignment, nor can an action be sustained by the assignee for the benefit of Bonesteel’s creditors. (Winch V. Keeley, 1 Term R., 619; Carpenter v. Marnell, 3 Bos. fy Pul., 40, and cases cited; Viner v. Cadell, 3 Esp., 88.) 1. Such a construction is according to the manifest intention of the parties to the assignment and to the justice of the case. 2. The trust relating tor personal property is not affected by the Revised Statutes prohibiting uses and trusts, except as therein modified. {Gott v. Cook, 7 Paige, 521; Kane v. Gott, 24 Wend., 641; De Peyster v. Clendening, 3 Paige, 295.) 3. The trust is based upon personal confidence, and is not assignable. (Sinclair v. Jackson, 8 Cow., 582; 4 Sandf. S. C. R., 175; 2 John. Ch. R., 154; 4 id., 136, 338; 7 Paige, 103, 521; Sugd. on Powers, 175.) 4. The judgment having been purchased in the name of Bonesteel, and the consideration paid by Smith, and the transaction being for Smith’s benefit and at his request, a resulting trust was created in law, which need not be evidenced by a written instrument. (4 Kent, 305, 6, and cases cited) 5. If this judgment passed, choses in action then held in Bonesteel’s name in form, but in fact belonging to him as guardian, executor, or mercantile factor doing business in his own name, for others, would also have passed.
    III. The judgment having been for more than $1000, its presumptive value was the amount thereof, and it could only be sold in pursuance of a resolution adopted by a majority of the board of directors of the Farmers and Manufacturers’ Bank. (1 R. S., 722, § 8, 3d ed.; 1 Seld., 320.)

    IY. Payment of the judgment against Smith, a joint debtor for the same debt, extinguished the judgment against the defendant, except as to costs, and the remedy was an action in favor of Smith, the surety, for money paid. (State Bank v. Fletcher, 5 Wend., 85; 4 John., 473 ; 20 id., 369; 2 Wend., 369 ; 1 Hill, 652; 2 R. S., 706, § 21, 3d ed.)

      N. Hill, Jr., for the respondent.
    I. The evidence was clearly sufficient to warrant the judge in finding, as matter of fact, that the assignment to Bonesteel was duly made by the bank. 1. The amount of the judgment having been paid by Smith, it was in equity his property, and the assignment of it did not reduce the funds of the bank. The statute, therefore (1 R. S., 591, § 8), has no application to the case. (1.) Smith might have compelled the bank to assign the judgment, at least in equity, he being the beneficial owner. (Clason v. Morris, 10 John., 524; Corey v. White, 3 Bari., 12; White S¡ Tudor's Lead. Cas., 98, 9, Am. ed. [65 Law Lili] ; New-York State Bank v. Fletcher, 5 Wend., 85 ; Cuyler v. Ensworth, 6 Paige, 32, 3.) (2.) What may be compelled by suit is equally valid if done voluntarily without suit. (Lee v. Brown, 4 Ves., Jr , 369 ; Clason v. Morris, 10
      John., 539 ; Bath v. Bradford, 2 Ves., Sr., 590; 1 Lewin on Trusts, 413; Comieron v. Irwin, 5 iBZ, 272, 3, 278, 9.) 2. If a consent or resolution of the board of directors was necessary, the presumption is that it was obtained. (1.) The assignment was under the corporate seal, and this is evidence that it was properly affixed. (1 Phil. Ev., 385, 6, 7th Lond. ed.; Cow. fy Hill’s Notes, 1287; Hoyt v. Thompson, 1 Seld., 335; Bank of Vergennes v. Warren, 7 Hill, 91, 95.) (2.) The testimony of the witness as to the mode in which the bank assigned, viz., “ by the cashier, under the seal,” &c., does not tend to show that he acted without authority. (Cases last above cited.) (3.) At all events, the plaintiff’s testimony raised a question of fact on the subject, and the decision of the judge is conclusive ; especially as the defendant had foil opportunity to show that the business was irregularly done, and omitted to do so. (Borstv. Spelman, 4 Comst., 284; Osborn v. Marquand, 1 Sandf. S. C. R., 457-; Bank of Vergennes v. Warren (supra).

    II. There is no evidence, nor is it the fact, that the judgment was assigned to Bonesteel in trust for Smith. 1. The case is the same as if Smith had first taken the assignment to himself and then assigned to Bonesteel; it appearing that the bank acted under his authority. 2. If the assignment was in trust, the defendant might have shown it by inquiring as to its contents; but he avoided all inquiry on that subject.
    III. The defendant has no right to raise either of the above questions; Smith and the bank, and all who could be injuriously affected, having acquiesced. (Bank of Vergennes, §c., supra; Rust v. Morse, 2 Hill, 655, 6, 7.)
   Allen, J.

The first and second propositions presented by the counsel for the appellant upon the argument were based upon the third, fourth and fifth objections taken upon the trial on the motion to dismiss the complaint, and were, in substance, that Bonesteel took the judgment under the assignment from the bank as trustee for Smith, that it did not therefore pass to his assignees, and that the action should therefore have been brought in his name. If Mr. Bonesteel did take as trustee, the positions of the counsel are doubtless well taken. But, 1. The judge decided the question of fact upon which the legal propositions are founded adversely to the appellant, and from the decision of a question of fact in a common law action or an action under the Code, an appeal does not lie to this court; and, 2. There is not a particle of evidence to warrant the inference that Bonesteel took as trustee. The legal effect of the transaction is the same as it would have been had Smith taken an assignment of the judgment from the bank to himself and had then assigned to Bonesteel. In that case the law would presume the assignment to Bonesteel to have been made upon a good consideration, and no trust would have resulted for the benefit of the assignor. The substance of the transaction and the legal presumption are now the same, and more especially as there was no necessity for the intercession of a third person to take the legal title to the judgment for Smith. Separate judgments having been recovered against the defendant and Smith as maker and endorser of the same notes, no one could doubt that Smith could legally take the assignment to himself without endangering the validity of the judgment.

The next position taken in behalf of the appellant is that the judgment, having been for more than $1000, its presumptive value was the amount thereof, and it could only be sold in pursuance of a resolution of the board of directors of the bank. There are several conclusive answers to this proposition: 1. Upon the payment of the debt by Smith, the endorser, he became entitled to be placed in the same situation in which the bank was placed in respect to the debt as against the defendant, the maker of the note, who was principally liable for its payment, and to be subrogated to all the rights and remedies, of the bank, and to all the securities held by it against him. The equitable doctrine of subrogation is favored and the rights which grow out of it are recognized and protected as well at law as in equity. The judgment in suit became, and was, in legal effect, the property of Smith and might have been enforced for his benefit, or a formal transfer to him might have been compelled. (New-York State Bank v. Fletcher, 5 Wend., 85; Clason v. Morris, 10 John., 534; Corey v. White, 3 Barb., 12; Cuyler v. Enswortli, 6 Paige, 32.) The bank, after the payment of the debt by the sale of Smith’s property, had no legal interest in the judgment, and only held it as trustee for Smith. The statute (1 R. S., 1115, §8, 4th ed.) only prohibits the transfer of the real estate or effects of the bank without authority by previous resolution of the board of directors. It was designed for the protection of creditors and stockholders, and to guard against the diversion of its effects, and does not extend to property or means held in trust for others. 2. None but the corporation or its stockholders or creditors can impeach a transfer of property by the corporation for the want oí the previous action of the board of directors, and then only by direct action brought for that purpose. Strangers, the debtors of the bank, and others, have no interest in the question, and cannot go back of the assignment and collaterally impeach the transfer for the want of the formalities which have been imposed by statute for the benefit and protection of others. 3. If a resolution is necessary, as against the debtor, the law will presume that such resolution was passed by the board of directors, and that the cashier was, by such resolution, duly authorized to execute the assignment under the corporate seal. (Hoyt v. Thompson, 1 Seld., 335, per RUGGLES, J.; Bank of Vergennes v. Warren, 7 Hill, 91.) It may be added that the bank .cashier, having only done what a court of equity would have compelled him to do, the presumption of the proper formal authority to perform the act will be more readily indulged than in ordinary cases. (Lee v. Brown, 4 Vesey, 362.)

Lastly, it is urged, in behalf of the appellant, that payment of the judgment against Smith extinguished the judgment against the defendant, except as to costs, and that the remedy was by action in favor of Smith, the surety, for money paid. There can be no doubt that if Smith occupied the relation of surety for the defendant, an action for money paid would have laid at his suit upon the payment by him of the debt, and there can be just as little doubt that upon the payment of a note or bill of exchange by a party thereto, who is not primarily liable for its payment, he becomes entitled to the possession of the bill or note, and may maintain an action upon it against any or all the prior parties thereto who have been properly charged; and if the contract of the party liable is merged in a judgment, the right of the person paying is to the judgment, as, but for the merger, it would have been to the bill or note. The payment by an endorser does not extinguish the liability of the maker or acceptor, and the endorser may take an assignment of any judgment which may have been recovered by the holder, and enforce it for his own benefit. (Harger v. McCullough, 2 Denio, 119; Clason v. Morris, supra; In the matter of McKinley, 1 John. Cas., 137; Corey v. White, supra.) The cases of The Ontario Bank v. Walker (1 Hill, 652) and The Bank of Salina v. Abbot (3 Denio, 181) were decisions made at special term, under the act of April, 1832, authorizing a joint action against all the parties to a promissory note or bill of exchange, and as to the effect of a joint recovery upon the right of subrogation between the several parties; and, if they can be recognized as law at this day, which is more than doubtful, do not affect the question in this case, as the judgments against the defendant and Smith were several judgments.

. The judgment of the supreme court should be affirmed.

Gardiner, Ch. J.

The judgment which constitutes the cause of action in this case was paid by Smith, and at his request assigned by the.bank to Bonesteel, and by the latter to the plaintiff. A paid judgment constituted no part of the effects of the corporation, and of course no resolution of the board of directors was necessary to authorize an assignment, according to the provisions of the 8th section of 1 R. S., 591. The contents of the assignment from the bank to Bonesteel do not appear. It is spoken of as an assignment, and, in the absence of other proof, must be held to have conveyed, in form at least, the whole legal and equitable interest in the judgment to the assignee. The consideration moving between Smith and Bonesteel is not proved. The presumption must be that it was sufficient to sustain an unqualified assignment in the form in which it was made, by the request of Smith. If Bonesteel was a naked trustee for the endorser, that should have been proved by showing the contents of the assignment or some memorandum or oral declaration, establishing the trust and showing its true character.

The whole controversy resolves itself into the question : Upon whom rests the burden of proof? I think that when the plaintiff has given evidence tending to show an absolute assignment, at the request of the owner of the judgment, it was incumbent upon the defendant to prove any qualification of that transfer upon which he might insist as essential to his defence.

The judgment of the supreme court should be affirmed.

The whole court concurring,

Judgment affirmed.


source: Caselaw Access Project

author: Allen, J. Johnson, J.

license: Public Domain

text:
    Weisser’s Administrators against Denison, President of the North River Bank.
    Bankers are presumed to know the signatures of their customers, and they pay checks purporting to he drawn hy them at their peril.
    A depositor owes the bank no duty which requires him to examine his passbook or vouchers, with a view to the detection of forgeries of his name.

      ji A principal is bound by the acts of his agent only so far as the agent is acting xV“ in the course of his employment.
    Where checks forged by the confidential clerk of the depositor were paid by the bank, charged to the depositor in his pass-book, the book balanced, and, with the forged vouchers, among others, returned to the clerk, who examined the account at the request of the principal, and reported it correct, and the principal did not discover the forgeries until several months after-wards, -when he immediately made them known to the bank; it was Held, in an action to recover the balance of the deposit, that the bank could not retain the amount of the forged checks.
    A new trial was ordered by the court below, unless the plaintiff should consent to the reduction of the judgment rendered at special term to a specified sum; the plaintiff consented, and perfected judgment for the reduced amount, and the defendant appealed from such judgment. The record not showing what items the general term rejected, was erroneous, by reason of the uncertainty; but it appearing that the original judgment was correct and its reduction an error, it was Held that the reduced judgment could not be reversed, nor the error corrected on the defendant’s appeal.
    T-his action was brought in the superior court of the city of New-York to recover an alleged balance of account arising from deposits made by the intestate in the North River Bank, a banking association in the city of New-York. The plaintiffs claimed a balance of $1739.70 ; and the defendant admitted that there was in the bank to the credit of the intestate, at the time of his death, the sum of $1150.50. The intestate, in his lifetime, kept an account with the defendant, and, between January, 1838, and his death in August, 1849, had deposited different sums of money, amounting in the aggregate to $296,601.86 ; and the bank had paid out, upon checks pui-porting to have been drawn by him, $295,451.36. Of the sum thus paid, $589.20 had been paid upon checks forged by one Harlin, a clerk of the intestate, at different times, from February, 1848, to August, 1849. During this time, the bank-book of the intestate had been written up and balanced by the bank several times, and the amounts paid upon forged checks debited thereon, and the book with the vouchers returned to him. Harlin, the forger, was a confidential clerk of the intestate, transacting much of his business with the bank, and receiving from the bank in every instance, with a single exception, the bank-book when balanced, and the canceled vouchers, and on his return comparing the checks returned with the check-book of the intestate, and reporting to his principal that all was right. He abstracted the forged checks from the vouchers returned, and after the discovery of his offence and his flight, the checks which were in controversy in this action were found in his trunk with the bank mark upon them.
    Upon the trial before Mr. Justice Dube, in February, 1851, after proof of the foregoing facts, the jury was charged that if they found that the signatures of the fifty-one checks alleged to have been forged were not in the handwriting of the intestate nor originally drawn by his authority, they should find for the plaintiffs, as well the amount of the forged checks as of the balance admitted to be due. The defendant’s counsel excepted to this charge, and the jury rendered a verdict for the whole sum claimed, amounting, with interest, to $1896.99. For this sum, with costs, judgment was perfected against the defendant. The court, at general term, modified this judgment by reducing the amount of the recovery to the amount admitted to be due, together with the amount paid upon the forged' checks, twenty-one in number, prior to the time when the bank-book was first balanced and returned with the amount paid upon forged checks debited thereon. A new trial was ordered, unless the plaintiffs should consent to this modification. The plaintiffs assented to the reduction required, and perfected judgment for the reduced amount. From this judgment the defendant appealed to this court.

      N. Hill, Jr., for the appellant.
    I. The court below held that the judgment entered at the special term was erroneous, and yet refused to grant a new trial. This was wrong, the judgment being entire as to the damages, and the question arising on bill of exceptions. 1. It is only where a judgment is for distinct or different things, e. g., damages and costs, that a court has power to sever it on error or bill of exceptions. ( Sheldon v. Qtiinlen, 5 Hill, 441; Dixon v. Pierce, 1 Root, 138 ; Welles v. Fowler, Kirby, 236; Richards v. Walton, 12 John., 434; Bradshaw v. Callighan, 8 John., 558, 565, 6; Frederick v. Lookup, 4 Burr., 2018 ; Davis v. Campbell, 1 Ired., 482.) 2. The Code has not changed the former rule on this subject, so far as the right to sever entire damages on appeal is concerned. (Code of 1849, §§ 12, 330; Voorhies1 Code, %% 12, 330, ed. Í853; Sheldon v. Quinlen, supra.) 3. Even if a severance of entire damages was allowable, the record furnished no means of distinguishing between the different items, and, as there was conceded error, the judgment should have been reversed in toto. (Cases cited supra.)

    H. The plaintiffs are not entitled to recover the amount of the twenty-one checks, nor interest thereon, by reason of Weisser’s neglecting to examine them and to return them to the bank after they had been charged to him on account in his bank pass-book, and sent to him therewith from the bank, and opportunity had by examination and comparison to detect the forgeries. Weisser had knowledge, or the means of acquiring knowledge, whether any of such checks so charged and returned were forgeries. He adopted them as his own by neglecting either to return them to the bank or to notify the bank that they were forgeries. A payment made on general account to a party in mercantile paper (notes or checks), purporting to be drawn by such party, which paper is received by him as cash, though afterwards discovered to be forged, is a good payment. (U. S. Bank v. Bank of Georgia, 10 Wheat., 333, and cases cited; Gloucester Bank v. Salem Bank, 17 Mass., 33.)
    IH. Even if Weisser was ignorant of Harlin’s fraud, he is liable for it, and should bear the loss occasioned by it, because it arose from Weisser’s entrusting Harlin with his business at the bank, and employing Harlin to act there for him and in Ms stead. Employment in such cases is not only the evidence of the authority, but the authority itself; and if one of two innocent parties must suffer by the fraud of a third, he who enables that third person to commit the fraud should be the sufferer. (Smith’s Mercantile Law, 111, 133 ; Barber v. Gingell, 3 Esp. Cas., 60; Raughton v. Ewbank, 4 Camp., 88; Watkins v. Vince, 2 Stark., 368; Dunlap’s Paley’s Agency, 172.)
    IV. The balancing and returning the bank pass-book with the checks, by the bank, and their being kept without objection by Weisser, was a settlement or stating of accounts between them, which cannot be opened on the ground of mistake, because made through Weisser’s negligence; and he cannot set up Ms own negligence to the injury of another to excuse a mistake so as to open an account. (Skyring v. Greenwood, 4 Barn. § Cress., 281; Philips v. Belden, 2 Edw. Ch. R., 1.)
    V. An authority may be presumed from employment, and adoption may be by mere acquiescence or silence. (Lawrence v. Taylor, 5 Hill, 114; Ward v. Ewans, 2 Salk., 442; S. C., 2 Raym., 928 ; Williams v. Mitchell, 17 Mass., 98 ; Story on Agency, §§ 234-260.)

      Edward Sandford for the respondents.
    I. The plaintiffs were not precluded from recovering the amount of money deposited by Weisser with the defendant, for which the defendant delivered to Harlin nineteen forged checks on the 19th of May, 1848. 1. It was not proved on the trial by whom these nineteen checks were forged. The only issue of fact which the defendant made respecting them was, whether they were not severally signed by Weisser. 2. If the evidence justified the assumption that these forgeries were committed by Harlin, the book-keeper and bank clerk of Weisser, they were crimes committed by him for which Weisser was not responsible. ( Vanderbilt v. Richmond

      Turnpike Company, 2 Comet., 479; Paley on Agency [Dunlap], 303, 306 ; Schmidt v. Blood, 9 Wend., 268, 271.) 3. Harlin, if the forger, had no more authority from Weisser to ratify his crimes than he had to commit them. The concealment of the evidences of his forgeries, by abstracting his forged checks, and reporting to Weisser that the balance was correct, was but a part of and in further execution of his criminal designs. He was not, in any part of this business, doing any act which Weisser had either expressly or impliedly directed him to perform. ( Vanderbilt v. The Richmond Turnpike Company, 2 Comet., 479 ; Manhattan Company v. Lydig, 4 John., 377, 384, 388; McManus v. Crickett, 1 East, 106; Wilson v. Peverly, 2 N. Hamp., 548, 550; Foster v. The Essex Bank, 17 Mass., 479, 498, 508, 510, 11.) 4. The ratification of an act, previously unauthorized, must be, in order to bind the principal, wifch a full knowledge of all the material facts. If they be either suppressed or unknown, the ratification is invalid, because it is founded on mistake or fraud. (Paley on Agency [Dunlap], 172, note 9; Owings v. Hull, 9 Peters, 607; Davidson v. Stanley, 2 Man. fy Gr., 721.)
    II. Weisser was not chargeable by the bank with the nineteen checks forged by Harlin and paid by the bank, on the ground that the bank had afterwards charged the forged checks in his pass-book, and returned them to Harlin with Weisser’s checks, and that he therefore had an opportunity to ascertain their genuineness. 1. If he had been shown each of the checks, and had by mistake admitted at the time that they were genuine, such an admission would be no more than prima facie evidence, and would not have estopped Weisser from afterwards showing them to be forgeries. (Hall v. Huse, 10 Mass., 40 ; Salem Bank v. Gloucester Bank, 17 id., 1,26,27,29; Canal Bank v. Bank of Albany, 1 Hill, 287,289 ; Barber v. Gingell, 3 Esp., 60, 61; Dczell v. Odell, 3 Hill, 215; Pickard v. Sears, 6 Adol. Sp Ell., 469; Leach v. Buchanan, 4 Esp., 226.) 2. Each of the nineteen forged checks was paid by the bank, without any authority from or any fault on the part of Weisser, and the bank was liable to him for the money he had deposited and had not withdrawn. It is the duty of the banker to be acquainted with his customers’ handwriting, and if he pays upon an order which is not genuine he must suffer. (Hall v. Fuller, 5 Barn. & Cress., 750.) 3. The bank had no claim against any person, other than the forger, for the money paid by them on either of the nineteen checks. There were no other parties to either of them. There is no evidence by whom they were presented or to whom they were paid. If paid to any persons other than the forger, the bank had no valid claim to recover back the money so paid from such other persons. (Price v. Neale, 3 Burr., 1354; Smith v. Mercer, 6 Taunt., 76, 78; U. S. Bank v. The Bank of Georgia, 10 Wheat., 333, 353, 55; Canal Bank v. Bank of Albany, 1 Hill, 287, 89, 90; Goddard V. Merchants’ Bank, 4 Comst., 147, 149, 152; Bank of Commerce v. Union Bank, 3 Comst., 230, 35.) 4. The bank was guilty of negligence in paying the forged checks. It was incumbent upon them to ascertain that they were genuine before they paid them. They thereby sustained a loss. Weisser had done no act to mislead them. The bank had given an appearance of authenticity to the checks, by then’ payment, calculated to mislead him, and there is no reason to throw off the loss from one innocent man to another innocent man. (Price v. Neale, supra; Smith v. Mercer, 6 Taunt., 76, 84, 87; Chitty on Bills, 463, 4, ed. of 1839.) 5. The greater negligence being chargeable to the bank, who paid the checks to the perpetrator of the forgery, they cannot retain the money which Weisser deposited with them on the ground of delay in detecting the forgery and giving notice of it, notice having been given as soon as the forgeries were discovered. (Bank of Commerce v. Union Bank, 3 Comst., 230, 236.) 6. This is not an action to recover back money paid by mistake. It is an action to recover moneys received by defendant, which have never been paid at all. The stated account was mere evidence of payment open to explanation, like a receipt or any other admission, which had not changed the position of the parties. (Manhattan Company v. Lydig, 4 John., 377, 389 ; Bruce v. Bruce, 5 Taunt., 495; Philips v. Belden, 2 Edw. Ch. R., 1, 14, 18 ; Brownell v. Brownell, 2 Bro. Ch. C., 62 ; Kinsman v. Barker, 14 Vesey, 579 ; Bullock v. Boyd, 2 Edw. Ch. R., 293, 295; Barrow v. Rhinelander, 1 Jo/tra. C/¿.- 12., 550-557; Perkins v. llarí, 11 Wheat., 237, 256; 1 Story Eq. Jur., % 523, 528, 9.)
   Allen, J.

But there was no settlement with the bank except such as resulted from the acquiescence of the plaintiffs’ intestate in the account by his silence. The examination of the account by Harlin was not a transaction with the bank, or in which they had any interest or of which they had any knowledge. It was a matter between Weisser and his clerk for the information of the former, and whether faithfully or honestly done is not material to the defendant. Weisser did not obtain the desired information, but is in no worse situation, and the defendant is in no better, than if no examination had been attempted, and in such case it would not have been claimed that he would have been concluded by the account and his omission to examine it. The business was, in truth, transacted in the usual and ordinary way, and no negligence can attach to Weisser in the premises. In The Manhattan Company v. Lydig (4 John., 377), a book-keeper in the bank, having charge of the ledger and whose business it was to copy entries from the teller’s cash-book, received money from a customer to deposit, entered the account in the ledger and afterwards in the dealer’s cash-book,' but embezzled the money. The bank-book of the dealer was balanced and settled three times, twice by the dishonest book-keeper and once by another clerk, after the credits had been entered .therein and before the fraud was discovered, although a critical examination of the books of the bank would have disclosed the fraud at any time. It was held that the bank was not liable, but that the depositor must suffer the loss, and that there was no want of diligence on the part of the bank. If a settlement with the defendant can be predicated upon the act of Harlin in examining the bank-book of Weisser, then the bank, in the case cited, should have been concluded by the acts of its clerks in stating the account with its customers. Mere lapse of time in the abstract, however long, will not bar the right of the party to allege the forgery, provided he does it within a reasonable time after it is discovered. (Canal Bank v. Bank of Albany, 1 Hill, 287.) Lapse of time between the payment of the checks and the discovery of the forgeries is all there is upon which the defendant can rely in this action, and that cannot avail him as a defence to the action. I see no reason why the judgment of the supreme court at the trial term, for the full amount of the verdict, should not have been affirmed; and as the relinquishment of a part of the verdict by the plaintiffs, the whole of which they were entitled to retain, whether done upon their own motion or otherwise, cannot prejudice the defendant, the judgment below should -be affirmed.

Johnson, J.

The plaintiffs had a verdict on the trial for $1896.99. Upon the defendant’s appeal to the general term of the superior court, in which the suit was pending, a new trial was ordered unless the plaintiffs would consent that the damages should be reduced to $1885.50; upon such consent, a new trial was to be denied without costs of the appeal. The plaintiffs consented to the deduction, and a new trial was accordingly denied. The defendant has appealed to this court, and now insists that, as the general term decided that an error had been committed upon the trial, and the case was there upon a bill of exceptions, and the damages were assessed generally, the court were bound to grant a new trial absolutely. The record affords no means by which we could determine what grounds or what data were adopted by the court below in fixing the amount of the deduction to which the plaintiffs were required to consent to avoid a new trial; and we should probably feel compelled on this ground alone to order a new trial, had not the plaintiffs furnished a complete answer to the objection, by maintaining, as we think they have successfully maintained, that the ruling of the court below, at the trial, was correct. Weisser, the plaintiffs’ intestate, had for a long period kept a bank account with the defendant. Between the 28th of January, 1838, and the time of his death, the 28th of August, 1849, he had deposited with the bank, to his own credit, and received credit for $296,601.86. During the same period, the bank had paid out, upon checks purporting to be signed by him, $295,451.36. Of these checks, which were several hundred in number, fifty-one, amounting in all to $589.20, were not signed by Weisser or by his procuration, but were forgeries of his name. If the case stopped here, the plaintiffs would clearly be entitled to recover the whole amount claimed. (Hall v. Fuller, 5 Barn. & Cress., 750.) It, however, further appears that, during the period above mentioned, Weisser’s bank-book was several times written up and balanced by the bank; that on each of those occasions all the checks which the bank had paid, as drawn by Weisser, were charged to him in his bank-book, and that all such checks, as well the forged chécks as the genuine, were returned with the balanced bank-book. All Weisser’s bank business was transacted by his clerk, one Harlin, who, on each of the occasions referred to, received the balanced bank-book and the returned checks from the bank. It likewise appeared that Weisser did not examine the returned checks and the statement of the accounts, as shown in the balanced bankbook, but directed Harlin to make such examination, and that attending to that part of Weisser’s business was in the course of Harlin’s regular employment. It appeared that twelve of the forged checks were paid to other banks, by which they were presented, and it did not appear to whom any of the other forged checks were paid. The forgeries were committed by Harlin, in whom Weisser reposed entire confidence. As soon as Weisser discovered that there was something wrong about his bank account, he communicated it to the bank, as he did also the fact that forgeries had been committed, as soon as he discovered them. Upon the discovery of the forgeries,' Harlin absconded, and the fifty-one forged checks were found in his trunk at his rooms. None of them were entered in Weisser’s check-book, Upon this state of facts, the defendant insisted at the trial that Weisser, by neglecting to examine the checks and bank account upon the return of the bank-book, written up and balanced by the bank, had adopted the checks as his own, and that by reason of his negligence in that respect the plaintiffs could not recover from the bank the amount of the forged checks.

The plaintiffs’ case may be considered: First, as to those checks which were paid prior to the first balancing of the bank-book and return of checks; and, Secondly, as to the checks afterwards presented and paid. As to the first class of checks, the plaintiffs have shown the money of their intestate in the defendant’s hands; and the defendant, in discharge of that liability, wholly fails to show any order or authority of Weisser to make payment upon the checks in question. They were not instruments upon which, even if genuine, the bank could ever have maintained any action against Weisser. They did not, upon their face, import any obligation from Weisser to the bank. When they were returned to him they were not presented to him for payment, for they did not import any promise by him to pay, but as vouchers for payments already made and charged to Weisser in the bank-book. The entry of debits for payments made in a bank-book and striking a balance is undoubtedly a statement of the account, and the delivery of it to the dealer and his retention of it without objection, as in other cases of accounts rendered, gives to this statement of accounts the character of a stated account. But a stated account is liable to be opened by evidence of fraud or of mistake; and when the payments represented by the checks in question were sworn by Weisser’s representatives not to have been made to him or by his order or authority, the proof of payment afforded by the stated account was overthrown and Weisser’s right to the money remained unaffected. The second class of checks are subject to precisely the same observations; and as to the amount claimed by the defendant on account of the payment of them, the defendant cannot retain it unless a right has accrued to the defendant from Weisser’s not having detected the forged checks returned upon the earlier balancings of his bankbook under the circumstances before stated. That these do not amount to a ratification of Harlin’s forging his name is plain, for there can, ordinarily, be no ratification of that of which a party is ignorant.' Ratification implies at least a knowledge that there is or may be something to ratify. The circumstances must then have effect, if they have any effect, upon the ground of negligence in a duty which he owed to the bank, whereby they have been misled and induced to pay the checks in question. The most which can reasonably be said is, that if Weisser had detected the forgeries and communicated the fact to the bank upon the return of the checks upon the first balance of his bankbook, the bank would have been stimulated to increased vigilance in the discharge of a duty which they owed, not to Weisser but to themselves, for it was not Weisser’s money which they-paid" out but their own. They were indebted to Weisser generally for money in their hands, and they could only discharge that indebtedness by payment to him or by his authority. The duty and the risk of ascertaining, when they were about to pay out money, that it was being paid upon competent authority, was upon them, just as in all other cases it is upon a debtor to see to it that he pays his creditor and not some one else without the creditor’s authority. Upon the mere ground of the forgery there was no more propriety in charging the money paid to Weisser than if anybody else’s name had been forged, or than if payments on some one else’s genuine checks had been charged to him.

The defendant’s proposition, when closely examined, is not that Weisser has done anything which facilitated or contributed to a fraud upon the bank, but that he has omitted to do that which, if he had done it, would have enabled him to put them on their guard against frauds with which the connection of his name was only an accidental circumstance, to which no act of his had in any degree contributed, and against which he was under no peculiar obligation to guard them. Whatever loss the bank has sustained it has suffered from its own negligence or want of skill in a matter as to which, in the first instance, it and it only was bound to exercise skill and diligence. To this loss no act of Weisser has contributed. He was guilty of no bad faith. He has violated no duty which he owed to the bank and is in no way responsible. (Manhattan Company v. Lydig, 4 John., 377; Smith v. Mercer, 6 Taunt., 76; Young v. Grote, 4 Bing., 253; Johnson v. Windle, 3 Bing. N. C., 225; Bank of Commerce v. Union Bank, 3 Comst., 230; Canal Bank v. Bank of Albany, 1 Hill, 287.) He had a right to assume that the bank had discharged its own duty to itself (if indeed he was bound to make any assumption upon the subject), and was not bound to conceive it possible that the bank had charged him with money which had not been paid upon his order. He was under no contract with the bank to examine with diligence his returned checks and bankbook. In contemplation of law the book was balanced and the checks returned for his protection, not for theirs, and when he failed to examine it the whole consequence was that the burthen of proof was shifted. He became bound to show that the account was wrongly -stated. This right he preserved so long as his claim was not barred by the statute of limitations. The case completely negatives any imputation of participation by Weisser in the fraud perpetrated upon the bank. That would have introduced a new element into the case and would have led to a different result.

All the judges concurred.

Judgment affirmed.


author: Denio, J. Parker, J.

text:
    The New-York Institution fob the Blind against How’s Executors and others.

      A legacy may he given to a corporation either by its corporate name or by description.
    The plaintiffs in this case were held not to have been named in a bequest to “ The trustees of the institution for the instruction and maintenance of the indigent blind in the city of New-York.”
    But it appearing that there was no other institution for the blind in the city of New-York, and that, although the plaintiffs were chartered for the purpose of instructing blind children, without regard to their indigence and without provision for their maintenance, the state had for several years placed certain indigent blind persons, between eight and twenty-five years of age, in this institution, to be maintained and instructed at the expense of the state, it was Held, that the plaintiffs were sufficiently ¡described to entitle them to the legacy.

      Held, also, that a bequest “ to the trustees” of the institution was a bequest to the institution, although those having charge of it were in the charter called “ managers.”
    The will of William How contained a bequest in the following words: “I give and bequeath unto the trustees of the institution for the maintenance and instruction of the indigent blind, in the city of New-York, the sum of three thousand dollars.” This bequest was claimed by the plaintiffs, who were incorporated by the legislature in 1881, “for the purpose of instructing children who have been born blind, or who may have become blind by disease or accident.” Acts were passed by the legislature, in 1834,1836 and 1839, authorizing the institution to receive for instruction, from each senate district, for a period not exceeding five years, at first four, then eight, and finally sixteen indigent blind persons, between the ages of eight and twenty-five years. The state paid a certain amount for the maintenance of these pupils.
    The corporation has no officers called “ trustees,” but its charter provides that its business is to be conducted by twenty persons denominated “ managers,” who are to be elected annually. It was proved, upon the hearing before the surrogate of Monroe county, that there was no institution in the city of New-York engaged in the education or support of the blind except the one claiming the bequest. The surrogate made a decree declaring that the plaintiffs were not entitled to the bequest of $3000, and directing it to be paid to the residuary legatees. This decree was affirmed by the supreme court in the seventh district, and the plaintiffs appealed to this court*

      B. F. Butler for the appellants*

      H. R. Selden for the respondents*
   Denio, J.

The testator bequeathed “ unto the trustees of the institution for the maintenance and instruction of the indigent blind, in the city of New-York,” the sum of $3000; and the sole question in this case is whether the appellants, a corporation under the name and title of “ The New-York Institution for the Blind,” can make title to the legacy. No other person and no other corporation claims to answer the description or be entitled to the legacy as such; and if the appellants cannot take it the gift is void, and the fund passes to the residuary legatees. There is nothing in the language of the bequest which makes it certain or very probable that the testator designed to state the corporate name of the institution for which his bounty was intended. The words may have been meant as a general description and not as the corporate name. It may very well be that he was unacquainted with the title, but at the same time knew the objects and general scope of the institution.. It becomes necessary therefore to ascertain, before attempting to apply the description, what the nature and purposes of the corporation which claims the legacy are. The appellants were incorporated in 1831 by the name which they use in this suit; and the object of the institution is stated in the act to be “for the purpose of instructing children who have been born blind, or who have become blind by disease or accident.” The coloration is made capable of purchasing, holding or conveying any real and personal estate, to a limited amount, “ for the purposes of this incorporation and no other.” Its concerns are to be managed by a board of managers, and a president, vice-president, treasurer and two secretaries, to be chosen annually by the members of the society. No subscription' to stock is provided for, and there is nothing to show how the means were to be obtained to carry out its objects. (Stat. 1831, 256.) In 1834, an act was passed authorizing the managers to receive four indigent blind persons from each senate district, in like manner and at the like expense to the state as provided by law for the indigent deaf and dumb, and they were, to be instructed in some trade or employment carried on in the institution. (Stat. 1834, 581.) In 1836, the institution was authorized and required to receive four additional beneficiaries of the same character from each senate district, upon the same terms; but it was provided that these should be between eight and twenty-five years of age. Twelve thousand dollars were at the same time appropriated from the treasury, to be paid to the managers on condition that they should raise an additional $8000; and the whole was to be applied to the purchase of the premises occupied by the institution, to the erection of a workshop for the blind and for repairs ¡of their buildings. The title of the real estate was to be vested in the managers, meaning probably in the corporation ; and the institution was not to be removed from its then present site for fifty years. (Stat. 1836, 293, 593.) By an act passed in 1839, the legislature authorized the reception, by the institution, of eight similar beneficiaries, and again appropriated $15,000 towards the objects of the institution, on condition that the managers should raise $8000; and in 1845, they appropriated, without condition, $5000 a year for five years. (Stat. 1839,171; Stat. 1845, 43.) The corporation carries on its operations in the city of New-York; and it is proved that there is no other institution or association in that city having any reference to the amelioration of the condition of the blind. The laws respecting the deaf and dumb, referred to in these enactments providing for beneficiaries to be received from the senate districts, contemplate the support of the indigent deaf and dumb persons at the institution provided for them during the course of their tuition. As the blind persons were to be received in like manner and at the like expense, they were of course to be supported by the institution, and the state was to pay a compensation therefor. (3 R. S., 227, 3d ed.; Stat. of 1822, 229, 230, 1, 5, 6; Stat. of 1825, 230, $ 3; Stat. of 1830, 185, § 2.)

With this knowledge of the character of the institution, we are now ready to compare it with the description which the testator has given of his intended legatee. First. He designed the legacy to go to an institution for ameliorating, in some way, the condition of the blind. Second. He supposed such an institution to be in existence in the city of New-York. Third, He supposed its business to be the maintenance as well as the instruction of blind persons. Fourth. He thought that indigent blind persons were wholly or in part the objects of the care of the institution. Fifth. He does not appear to have thought that the benefits intended were limited to children; or, if he did, he did not think that circumstance so prominent as necessarily to be a part of the description of the institution.

In all these features, I think the corporation which claims this legacy completely answers the description which the testator has given. Though the act of incorporation did not refer to indigence as a qualification for the unfortunates who were to be relieved, or provide for the maintenance of those who were to' receive the benefits to be provided; and though it did contemplate children only as the objects of the attention of the institution, the subsequent legislation so far modified the character of the corporation, in these particulars, that when the will was made these several circumstances had all been engrafted upon it, and might well enter into a description of its general scope and purposes. It is of no importance if the qualification of indigence, and the provision for maintenance* and. for the admission of grown persons, were all limited to the state beneficiaries. The, question arises upon the description. It is a question of identity; and the point is whether the legatee can be found and certainly identified by the description contained in the will. The description is not shown, to. be erroneous, though there be a different class, of persons also to be relieved, or if some are-to be instructed merely and not supported. I do not, upon the whole, see how a description comprised in a brief sentence could more accurately have hit the leading particulars which go to define this, corporation, and to distinguish it from all others.

It is well' settled that a devise or bequest to a corporation need not state its corporate name. It is sufficient that the devisee or legatee, whether a natural person or a corporation, is so defined as to be distinguished from every other person. (1 Jarman on Wills, 330; Angel & Ames on Corp., 60;. Counden V. Clerke, Hob., 29, a; Dr. Ayray’s case, 11 Coke, 20, b.) In the last mentioned case, the court resolved that, although it had been said that the name of an incorporation is.like the name of baptism, “ yet, if the person be so described that he may be certainly blown from other persons, the omission,, or in some cases the misprision of the name of baptism, shall not avoid the grant.” Indeed, the numerous cases upon this subject relate to devises and grants where some mistake has been made in attempting to give the name of the corporation, or some circumstance false or. inapplicable has been introduced into the description. Here the true corporate name was not given, and it is not shown that the testator intended to give the name; but, as before remarked, he described this institution with entire accuracy. I do not think it necessary therefore to go over the cases cited at the bar to show how considerable an error may be overlooked or reconciled. There is much solemn trifling in the old books upon this question. (Case of the Corporation of Lynn, 10 Co., 123, a; Bac.. Ab., Capacity C, 2.) It would be a useless labor to review them if I am right in supposing that this testator has not committed any error in describing the intended administrator of his bounty. The will does not state the purpose for which the legacy is. given; but when it is ascertained by provisions in- public' laws that there is but one object to which the legatee can lawfully apply it, it is not a violent presumption that the testator contemplated and. intended that it should be applied, to that object.

I am of opinion that the judgment of the supreme court should be reversed, and the proceedings be remitted to that court with directions to modify the sentence "of the surrogate in such manner that the respondents, who are executors of William How,, be required to pay to the appellant, the New-York Institution for the Blind, the legacy mentioned in the will of said How, with interest thereon commencing one year after the testator’s death.

Parker, J.

The right of the plaintiff to a legacy of $3000, under the will of William How, deceased, is contested by the defendants, who are the residuary legatees-. The only question is whether the plaintiff, whose corporate name is “ The New-York Institution for the Blind,” is entitled to a legacy given to the “ trustees of the institution for the maintenance and instruction of the indigent blind in the city of New-York,” it appearing that there was not, at the time of making the will, and never has been, in the- city of New-York, any other institution for the blind except the plaintiff.

It is conceded that a legacy may be given to a corporation or an individual, either by name or by description. If by the former, the legatee need not be called idem syllable sen. verbis. It is suflicient if it be idem re et sensu. (The Mayor and Burgesses of Lynn, 10 Coke, 124.) I think the misnomer in this case is too great to allow the plaintiff to take the bequest by name, and so far I concur with the learned justice who delivered the opinion in the supreme court. The name is not the same, nor is it the same in substance and meaning, nor is it shown that the plaintiff was known by the name mentioned in the will or was ever called so by the testator. (Leon., 159, cited 10 Coke, 123; 1 Jarman on Wills, 331 1 Vesey, Jr., 266; 3 Vesey, 148; 3 Pick., 232; 2 Dallas, 74; Cro. Eliz., 106; 7 Metc., 416.) I do not think it was the intention of the testator to name the object of his bounty, but to describe it; and it is therefore necessary to ascertain whether the description is sufficient to designate the plaintiff so as to distinguish it from all others. ( Thomas v. Marshfield, 10 Pick., 367.)

Is the plaintiff in fact an institution for the maintenance and instruction of the indigent blind in the city of New-York? It is in the city of New-York, and is therefore within the latter part of the description, but it is denied that it comes within the former part of the description. The plaintiff was incorporated on the 21st of April, 1831 (Laws of 1831, 256), “ for the purpose of instructing children who have been bom blind or who may have become blind by disease or accident.” So far it was only an institution for instructing the blind, and would not be described by the words “ maintenance” and “ indigent.” But in 1834 an act of the legislature was passed (Laws of 1834,581), authorizing the plaintiff “ to receive from each of the then senate districts four indigent blind persons, between eight .and twenty-five years of age, in like manner and at the like expense to the state as is provided by law for the indigent deaf and dumb.” And by subsequent acts (Laws of 1836, 293, 593; Laws of 1839, 171) the number was increased to sixteen from each senate district, making in all one hundred and twenty-eight indigent blind persons to be instructed in the institution. It became, therefore, by these acts, an institution for the “ indigent ” blind.

But the word “ maintenance” is not used in either of these statutes. It will be seen, however, that it was not only contemplated but provided for. These indigent pupils were received in like manner as was provided by law for the, indigent deaf and dumb; and a reference to the statutes providing for the indigent deaf and dumb shows that they were maintained as well as instructed at the expense of the state. The act of 1822 (Laws of 1822, 248, § 5) declares “ that each indigent pupil so received shall be provided with board, lodging and tuition,” to be paid for out of the state treasury.. The act of 1830 (Laws of 1830, 185, $2) provides that “ the yearly expense to be paid out of the treasury .for the support of such pupils shall not exceed the sum of $130 for each pupil.” The preamble of the charter of “ The New-York Institution for the Instruction of the Deaf and Dumb" expressly recites that the object of the institution is represented to be the support and maintenance as well as the instruction of the indigent deaf and dumb. It is evident therefore that the plaintiff was authorized to maintain and instruct the indigent blind, and was employed by the state, for that purpose. Such maintenance became, from that time, if it was not before, one of the objects of the institution, and such it was at the time the will was executed and has continued to be until the present time.

I do not think it is necessary for the plaintiff to show that the maintenance and instruction of the indigent blind were the sole objects of this institution; it is enough if they were among its objects. The fact that indigent blind persons were maintained and instructed there made it an “ institution for the maintenance and instruction of- the indigent blind.!’ The expression seems to me to mean nothing more than “the institution where indigent blind persons are maintained and educated.” And if the latter expression had been used instead of the former, it- would hardly be contended that the description was not applicable to the plaintiff alone, it appearing, as it-plainly does, that there was no other institution in New-York where the blind were maintained and educated. Indeed, I think it is apparent, from the general helplessness of those intended to be relieved, the tenor of the charter and subsequent, acts, and the plan adopted to sustain it, that the principal object of the institution was the relief of the indigent blind,, whose maintenance, was necessarily connected with their instruction.. It was frequently an applicant for state as well as= individual bounty. In 1836 the state gave to the institution $12,000 on condition that the managers should raise $8000; in 1839, $15,000 on condition that the managers should raise $10,000'; and in 1845, $5000 a year for five years. (31 R. S., 239, 3d ed.)

A bequest to the trustees of the institution was a bequest to the institution itself (13 John., 38; 6 Hill, 476; 10 N. H., 123), and it was none the less so because those having charge of it are. called “ managers ” in the charter. They are still trustees and known in law under that name. (1 R. S., 600, §§ 9, 10; 2 R. S., 462, § 33.) My conclusion therefore is;, that the plaintiff was plainly intended and sufficiently described as the object of the testator’s bounty, and that the judgment of the supreme court and the decree of the surrogate should both be reversed, and that the proceedings he remitted, with directions that a decree be. entered in favor of the plaintiff for the amount of the, legacy with costs.

All the judges concurred.

Ordered accordingly.


author: Gardiner, Ch. J.,

text:
    Bearss against Copley.
    The report of a referee upon a question of fact, where the evidence is contradictory, is conclusive.
    Where the declarations of a party are proved against him, what he says in his own behalf at the .same time is competent, but not conclusive evidence in his favor.
    A witness cannot, on cross-examination, be questioned.as to what he has said at other times in relation to a fact at issue in the cause, where he has not been examined by the party calling him as to such fact, and the matters inquired of are not such as could properly affect his credibility.
    The opinion of a witness skilled in a particular art or trade is competent upon question relating to such art or trade, although prior to his examination he has abandoned its practice and engaged in other business.
    This action was commenced in the supreme court, in August, 1851, to recover for eight months’ service of the plaintiff as foreman of the defendant’s tannery. The answer alleged a set-off, and a counter-claim for so unskilfully and negligently conducting the tanning of a large quantity of hides as to injure the same to the amount of $1000.
    Upon the trial before a referee the employment of the plaintiff was proved, and the length of time that his service continued. One HicJcock was then called on the part of the plaintiff, who testified that the defendant had declared to him that he had discharged the plaintiff, and that he was to pay him $400 a year; and that in the course of the same conversation the defendant said that the plaintiff got drunk, was absent and neglected his business, and that on that account he had discharged him. No testimony having been given by this witness, upon his direct examination, with regard to the industiy or faithfulness of the plaintiff in his employment for the defendant, upon cross-examination the defendant’s counsel put him the following question: “Did you not state at different times to Mr. Copley, while the plaintiff was about the tannery, that the plaintiff neglected his business ?” This question was objected to and overruled and an exception taken. Some other testimony was given bearing upon the question of the plaintiff’s sobriety and faithfulness ; and a motion duly made for a nonsuit was denied.

      Taylor More was called as a rebutting witness for the plaintiff, to show that the Hack rot, by which the hides mentioned in the answer had been injured, could not have been caused by the plaintiff’s negligence, but that it was an injury in.hides before they came to the tannery. It appeared ill at the witness had been engaged in the tanning business a little over four years, and had done all kinds of work in the process of tanning, but that he had abandoned the business, and was now a student at.law. The defendant’s counsel thereupon moved to strike out the testimony of this witness, upon the ground that he was not an expert. The referee refused to strike it out and the defendant excepted. The referee reported in favor of the plaintiff, for $166.45, and judgment entered on this report was affirmed at general term in the sixth district, and the defendant appealed.
    The cause was submitted here upon printed arguments.

      Abraham Becker for the appellant.

      S. A. Givens for the respondent.
   Gardiner, Ch. J.,

delivered the opinion of the whole court. The question put to the witness Hickock, whether he had not stated at different times to the defendant that the plaintiff did not attend to his business in the tannery, was properly overruled by the referee. As affirmative evidence to sustain the defence, it was manifestly inadmissible; and as the witness had not testified at all upon the subject of the skill or competency of the plaintiff in his particular employment, a response by him to the question, whether in the affirmative or negative, would not in the slightest degree have affected his credibility.

The referee was also right in denying the motion for a nonsuit. The plaintiff had given evidence tending to establish his employment and the length of time that he had labored for the defendant. He then showed, by the declarations of the defendant, his dismissal and the amount of his salary. In the course of the same conversation the defendant said that the plaintiff got drunk, was absent, and neglected his business. The defendant insists that the admission must be taken together, and in this he is correct; but as there was other evidence, the referee was not obliged to give equal credit to every part of the declaration. He might and it seems did believe the discharge of the plaintiff established by the admission, as a fact peculiarly within the knowledge of the defendant, and reject the excuse offered at the same time, not only as inconsistent with ■ the other evidence, but as probably suggested upon information obtained from others.

The last exception was to the admission of the opinion of a witness as to the cause of the black rot in hides, in the process of tanning, upon the ground that he was not an expert. The witness at the time of the trial was a student at law, but he stated that he had been engaged in the tanning business over four years, “ and had done all kinds of work in the process of tanning.” In the absence of all proof to "the contrary, experience for this length of time was prima facie evidence of the competency of the witness to speak upon the subject. There was nothing in the change of employment, from tanning hides to the study of the law, which would necessarily deprive him of the skill acquired in his original trade. The judgment of the supreme court should be affirmed.

Judgment affirmed.


author: Selden, J.

text:
    Cole against Jessup.
    Where "the teller of a bank, who was also a notary’s clerk, testified to the presentment .and notice of non-payment of a note payable at the bank, -admitting that he had no recollection of such facts aside from certain entries made by him in the course of his business in the notary’s memorandum-book, but that he knew the entries would not have been made if the acts had not been done, it was SelA, that such entries might properly be read to the jury, as ■evidence, not that the notary had performed the service, but that it had been done by the witness in his private capacity.
    Under the 27th section of the late statute of limitations '(2 R. S.¡ 297, § 27 ), substantially reenacted in the Code of Procedure, it is sufficient for the defendant, in averring his return to the state, to allege that he “ returned publicly to this state,” without showing the circumstances of such return, or that the plaintiff had notice of it.
    The clause of such 27th section relating to the departure of the debtor from the state, applies to" cases where the debtor resides out of the state when the cause of action accrues, and subsequently comes into the state, as well as to cases where he is a resident of the state at such time.
    Under the statute above referred to, successive absences of the debtor from 'the state may be accumulated, and their aggregate deducted from the period of limitation.
    Where a plaintiff, in pursuance of special leave, puts in two replications to a plea, and either replication is sustained, he is entitled to judgment upon the issue tendered by the plea.
    This action was commenced prior to the enactment of the Code of Procedure. It was brought against the defendant as the endorser of a promissory note for $808.71, made by one Schiiver, payable at the Ogdensburgh Bank six months after date, and dated September 20th, 1834.
    The defendant Jessup pleaded, first, the general issue, and secondly, the statute of limitations. The material portion of the latter plea was in these words, viz.: “ That the said several supposed causes of action in the said declaration mentioned, if any such there were or still are, did not, nor did any or either of them, accrue to the said plaintiff at any time within six years next before the exhibiting of the bill of the said plaintiff.”

      To this plea of the statute of limitations, the plaintiff, by-special leave of the court, put in two replications, viz.: 1. That at the time when the causes of action accrued, the said Jessup “ was out of the State of New-York, to wit, at Brockville, in the province of Canada, to wit, on the 23d day of March, 1835, and did not return into this state until the 1st day of January, 1840,” arid that the action was commenced within six years next after such return; 2. That after the said causes of action accrued, to wit, on the 1st day of May, 1835, the said Jessup departed from and resided out of the state, and continued so to reside for the space of five years next after the said 1st of May, 1835, and that the said action was commenced within eleven years next after the causes of action accrued.
    Upon the first of these replications the defendant took issue. To the second he rejoined, that after the departure of Jessup in that replication alleged, to wit, on the 1st day of May, 1837, he, the said Jessup, “ returned publicly to this state,” and that the action was not brought within six years next after such return.
    To this the plaintiff surrejoined, that after the return in the rejoinder alleged, to wit, on the same day, the said Jessup again departed from and resided out of this state, and continued absent from and residing out of the state, to wit, in Canada, for the space of four years, and that the suit was commenced within six years next after the causes of action accrued, exclusive of the time the said Jessup was absent from and residing out of the state.
    The rebutter alleged, in substance, .that the said Jessup, at the time the causes of action accrued, and at the time of his first return, as alleged, resided out of the state and continued so to reside, until the 1st day of September, 1837, when he again “ returned publicly to this state,” and that the action was not brought within six years next after the last mentioned return.

      The plaintiff demurred to the rebutter, assigning for causes : 1. Because it did not deny the absence of Jessup, as alleged, nor that the suit was commenced within six years next after the causes of action accrued, exclusive of the time of such absence; and 2. Because the allegation that Jessup had “ returned publicly ” to the state, without averring that he resided or remained a certain length of time, is immaterial and insufficient. ' Upon .this demurrer the court gave judgment for the plaintiff, holding all the- pleadings after the replication to be bad in substance. (2 Barh., 309.)
    The issue of fact joined upon the first replication to the plea of the statute of limitations then came on to be tried; and upon the trial the execution of the note by Schriver the maker, and its endorsement by the defendant Jessup, was duly proved.
    To prove presentment, demand, and notice of non-payment, the plaintiff then called John D. Judson as a witness, who testified that in March, 1835, he was teller in the Ogdensburgh Bank; that he recognized the note in question as one that had been in that bank, by certain marks upon its back; that he had himself presented the note for payment on the 23d day of March, 1835, and there being no funds of the maker in the bank, he had on that day mailed a notice of non-payment, addressed to the defendant Jessup at his place of residence in Canada.
    • Upon cross-examination, the witness stated that he had no recollection of the facts aside from certain books and papers which he had examined, and that after such examination he could not say that he had any remembrance of the facts. He then stated that he had made the entries and memoranda, to which he referred, as the clerk of his brother, David C. Judson, who was a notary public; that he had kept a memorandum of notes protested, i’J a book kept for • that purpose ; that his brother had made nine of the entries himself, but they were made exclusively by the witness, his brother furnishing him with notarial certificates, signed in blank, which the witness filled up as occasion required.
    The witness further testified that he was in the daily habit of protesting notes; that it was his usual practice to make the entries in the memorandum-book the same day that he delivered the notices; that he had no recollection <of making the entries in this case, but that he knew they would not have been made if he had not done the acts stated in the memorandum; and he testified positively to those acts, basing his testimony entirely upon the memorandum.
    It appearedhat David 0. Judson, the notary, was living at the time of the trial. Upon this proof the counsel for the plaintiff requested the witness to read the entries to the jury, which was objected to by the defendant’s counsel, but permitted by the court, as showing the grounds upon which the witness based his testimony. To this decision the counsel for the defendant excepted. .The jury, under the charge of the court, found a verdict for the plaintiff for $1614.89, the amount of the note and interest.
    A bill of exceptions was tendered and signed, upon which a motion was made in the supreme court at general term for a new trial, which was denied (9 Barb., 395), and thereupon judgment was entered for the plaintiff for the amount found by the jury, and costs. From this judgment the defendant appealed to this court. The cause was submitted on printed arguments by

      Charles 6r. Myers for the appellant, and

      William C. Brown for the respondent.
   Selden, J.

The. record in this case presents two mam questions: one upon the exception to the decision of the judge, permitting the entries made in the memorandum-book kept by the witness Judson to be read in evidence to the jury; the other upon the demurrer to the defendant’s rebutter.

In regard to the point raised upon the bill of exceptions, it is to be observed that the official character of the notary had nothing whatever to do with the reception of the evidence. The circumstance that the witness Judson professed to act, in presenting the note for payment and in giving notice to the endorsers, as the clerk of his brother the notary, neither added to nor detracted from the force of his acts. Any officer or agent of a bank or any private citizen may, if authorized by the holder, demand payment of a note, and give notice of its non-payment, with the same effect as if done by a notaiy. The note in this case was payable at the Ogdensburgh Bank, of which the witness was teller; and the possession of the note by him was sufficient evidence of his authority to make the demand and give the notice. (Bank of Utica v. Smith, 18 John., 230.)

The memorandum in question was offered, in connection with the oral testimony, as evidence, not -that the notary had performed the service, but that it. had been done by the witness. The entries were made by the witness himself at about the time the acts were done, and in the usual course of his employment as clerk. The original entries were produced, and were fully verified by the witness, who testified that he knew they would not have been made if he had not done the acts. This brings the case clearly within the rule established in the case of Merrill v. The Ithaca and Owego R. R. Co. (16 Wend., 586), and The Bank of Monroe v. Culver (2 Hill, 531), unless the objection urged by the defendant’s counsel is sound. He insists that the entries in this case are not mere business entries, made by a clerk or agent in the performance of his ordinary duties, but that they purport to be made- by a public officer, clothed by law with certain powers, whose written memoranda are under certain conditions made evidence of his official acts; and cites the case of The Onondaga County Bank v. Bates (3 Hill, 53), and the authorities there referred to, as showing that a notary cannot delegate his powers to a clerk or deputy, and that the attempt to do so is censurable; from which he argues that the entries in this case are to be regarded as made in violation of law, and not in the ordinary course of business, and that this illegal taint strips them of the credit which attaches to such as are legitimately made.

This argument, however, is based upon a misapprehension of the scope of the authorities referred to. The case of The Onondaga County Bank v. Bates simply decides that, in order to make the certificate of a notary evidence, per se, under the statute, of the facts stated in it, it is necessary that he should perform the duties in person, and that if he employs an agent for the purpose, his acts are deprived of their official character, and become subject to the ordinary rules of evidence.

The English authorities referred to in this case only condemn the employment of a clerk to perform those duties to which the official character of the notary is essential, such as the protesting of a foreign bill of exchange, but contain no intimation against the performance, through an agent, of acts which may properly be done by any private citizen.

As it is entirely immaterial to the validity of the acts themselves, in this case, whether they were performed by the witness as the clerk of the notary, as the agent of the bank or as a private individual, so I apprehend it is unimportant to the credit of the entry whether it was made in the books of the notary, in those of the bank or in the private memorandum-book of the witness.

There can be no doubt, therefore, that the memorandum in this case was properly received in evidence, and that the decision of the supreme court upon the bill of exceptions was right.

This conclusion is decisive of the case. The plaintiff having, by leave of the court, put in two distinct and separate replications to the plea of the statute of limitations, if he is successful upon either of these, the defence set up in thd plea is overthrown.

The verdict, therefore, upon the issue joined upon the first replication, being sustained, it follows that the judgment must be affirmed, whatever disposition may be made of the demurrer. This consequence is resisted by the defendant’s counsel; but it admits of no doubt whatever. One sufficient answer to a single pleading is enough, and necessarily destroys its force and effect. If the second replication were stricken out entirely, or adjudged frivolous, it could not affect the first replication. The plaintiff would still be entitled to judgment upon his verdict sustaining that replication. It is not absolutély indispensable, therefore, to the disposition of the case, that this court should pass at all upon the issue of law. But as this issue presents questions of some moment as to the construction of the statute of limitations, in regard to which the decisions are conflicting, it seems expedient, since these questions are directly involved in the case, that this court should express its opinion upon them. Although the statute upon which the questions arise has been repealed, it is substantially reenacted in the Code (§100).

The principal questions presented by the demurrer in this case arise upon the defendant’s rebutter, although the previous pleadings on both sides are assailed. The rebutter is alleged to be bad, for two reasons: l! Because it does not show that the defendant returned to this state under such circumstances that the creditor might, with due diligence, have commenced his suit; and 2. Because it no way answers the material allegation in the surrejoinder, that the suit was commenced within six years next after the cause of action accrued, exclusive of the time of the defendant’s absence from and residence out of the state; but tenders an issue as to the return of the defendant within the state, which is wholly immaterial.

The provision of the statute with reference. to which the pleading in question was framed, and upon which the questions upon the demurrer in this case depend, is as follows: “If at the time when any cause of action specified in this article shall accrue against any person, he shall be out of this state, such action may be commenced within the times herein respectively limited after the return of such person into this state; and if after such cause of action shall have accrued, such person shall depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.” (2 R. S., 297, § 27.) The first branch of this section is taken from our statute of limitations in force prior to the revision of 1830. (1 R. L., 186, % 5.) Under this provision of the former statute it was held that the return of an absent debtor into the state, in order to come within the terms of the act, and to cause the limitation of the time for commencing the action to begin to run, must be so “ public and under such circumstances as to give the creditor an opportunity, by the use of ordinary diligence and due means, of arresting such debtor.” (Fowler v. Hunt, 10 John., 464.)

The allegation here is that the defendant “ returned publicly to this state.” It is insisted by the plaintiff that this is not enough, but that the defendant should have gone further, and alleged the circumstances necessary to bring the case within the decision in Fowler v. Hunt.

The supreme court so decided, and held the rebutter to befo ad for this reason. The superior court of the city of New-York, in the case of Ford v. Babcock (2 Sandf. S. C. R., 518), has decided directly the reverse. The decision of the supreme court in this case, which is reported in 2 Barb., 309, was referred to and considered by the superior court in deciding the case of Ford v. Babcock. ■ The reasoning of Judge Dueb upon this point seems to me • conclusive, and I therefore adopt it. • His argument is substantially this: that whenever a statute gives a cause of action or defence, it is sufficient, in declaring upon or pleading the statute, to follow the words of the act; and that where the courts, in construing a statute, have put an interpretation upon it different from the literal import of its language, they will of course be bound to give the same interpretation to the same words when used in a declaration or plea founded upon the statute. And again, that it having been held in several cases, to wit, Faw v. Roberdeau (3 Cranch, 174), Fowler v. Hunt (10 John., 464), White v. Bailey (3 Mass., 271), and Little v. Blunt (16 Pick., 369), that when a defendant pleads a return under the statute, he is bound to prove all the facts necessary to make such return effectual, although none of these facts are expressly averred, it follows that the plea cannot be defective for want of such averment; that if the averment adds nothing to the proof which the defendant is under obligation to produce, it cannot be necessaiy to the validity of the plea.

The conclusion from this reasoning is inevitable, that the rebutter is in this respect sufficient,, and that the decision of the supreme court upon this point was erroneous.

The next question is whether the rebutter is bad, because it does not in any way answer the allegation in the surrejoinder that the action was commenced within six years after the causes of action accrued, exclusive of the time of the defendant’s absence from and residence out of the state. This question depends mainly upon the accuracy of the construction of the statute upon which the surrejoinder is based. We shall have a clear view of the opposite constructions put upon the statute in question, by the defendant in the rejoinder and rebutter upon the one hand, and by the plaintiff in the surrejoinder on the other, if we recur for a moment to the series of pleadings terminating in the demurrer.

Plea: That the causes of action did not accrue within six years next before suit.

Replication: That after the causes of action accrued, to wit, on the 1st of May, 1835, the defendant departed from and resided out of the state for the space of five years ;■ and that the action was commenced within six years,- &c., deducting the time of such absence.

Rejoinder: That after the departure alleged in the replication, ■ to wit, on the 1st of May, 1837, the defendant publicly returned into the state, and that the action was not commenced within six years after such return.

This rejoinder assumes that the latter branch of $ 27 provides for only a single absence; and that where a debtor has once left the state, after the accruing of the causes of action, and returned, the action must be commenced within six years after such return, without regard to any subsequent absence.

Surrejoinder: That after the return mentioned in the rejoinder, to wit, on the same day, the defendant again departed from and resided out of the state for the space of four years, and that the action was commenced within six years next after the causes of action accrued, exclusive of the time of the defendant’s absence, &c.

The surrejoinder is evidently based upon a construction of the statute directly opposite to that assumed by the rejoinder, to wit, that the latter branch of § 27 provides for the case of successive absences; and that where they are repeated, not only the first, but the aggregate of the whole is to be deducted.

Rebutter: That at the time of the accruing of the causes of action, and at the time, of the return mentioned in the surrejoinder, the defendant resided out of this state; that afterwards, to wit, on the 1st of September, 1837, he returned publicly into the state, and that the action was not commenced' within six years after such last mentioned return.

The allegation in the rebutter, that the defendant resided out of the state when the causes of action accrued, seems to ‘ have been intended to raise the question, whether the latter branch of § 37 applies at all to such a case. Beyond this the rebutter is a mere reiteration of the ground taken in the rejoinder.

From this brief review of the pleadings, it will be seen that two questions are presented in regard to the construction of the section of the statute in question, to wit: 1. Whether the latter branch of the section can have any application to a case where the debtor resides out of the state at the time when the cause of action accrued; and 2. In a case to which this branch of the section does apply, whether the aggregate of successive absences or only "the first absence is to be deducted.

Both those questions have been presented to the courts upon several occasions, and the decisions upon them are irreconcilably conflicting. The first arose in the case of Randall v. Wilkins (4 Denio, 577). The court in that case held that, where the debtor resided out of the state when the cause of action accrued, the statute would commence running whenever he should come openly and publicly into the state, so that the creditor, by the exercise of ordinary diligence, might cause process to be served upon him; and that, having once commenced, it would continue to run, although the debtor should immediately leave the state, and continue abroad until the limitation had expired. The view taken by the court in this case seems to have been, that the first and second branches of § 27 were intended to provide for entirely distinct classes of cases ; the first being intended as a reenactment, without modification, of that portion ®f the former statute from which it was copied, and the second designed to be limited to cases where the debtor is within the state when the cause of action accrues.

But this case stands not only wholly unsupported in this view of the statute, but directly opposed to the other cases in which the question has arisen. In Didier v. Davison (2 Barb. Ch. R., 477), Chancellor Walwobth puts a construetion upon this section entirely adverse to that adopted in Randall v. Wilkins. It is true that the point does not appear to have been seriously contested in that case; but in the case of Ford v. Babcock (supra), the subject was very fully considered, and it is, I think, there conclusively shown that the construction adopted in Randall v. Wilkins is irreconcilable with either the letter or spirit of the statute. So far, therefore, as the validity of the rebutter rests upon that construction, it must be held to be defective and bad.

The only remaining question is whether successive absences can be accumulated and the aggregate deducted, under the latter branch of § 27, in cases to which that branch of the section applies. There is but a solitary decision, aside from that of the supreme court in this case, upholding the negative of this question, to wit, that of Mr. Justice Nelson in the case of Dorr v. Swartwout (5 N. Y. Leg. Obs., 172). This was the only authority cited by the supreme court to sustain the view taken of the statute in this case. But the case of Dorr v. Swartwout is in direct conflict not only with the opinion .of Chancellor Walworth in the case of Didier v. Davison, and with that of the superior court of New-York in the case of Ford v. Babcock, but also with that of the late supreme court in the case of Burroughs v. Bloomer (5 Denio, 532). In the last two of these cases, the case of Dorr v. Swartwout is expressly referred to and disapproved; and in the case of Ford v. Babcock its construction of the statute is, I think, successfully overthrown by a process of cogent reasoning drawn from the evils which existed under the former law and the apparent design and object of the new provision. I have no hesitation, therefore, in adopting the construction, in this respect, given to the statute in the three cases last referred to, rather than that adopted in Dorr v. Swartwout.

It follows from this that the surrejoinder is good, the rebutter bad, and that the plaintiff is entitled to judgment upon the demurrer.

The supreme court held the surrejoinder to be bad as well as the rebutter 5 but as it also held the rejoinder bad, the decision of that court upon the demurrer, although resting upon an entirely different view of the statute, was the same as that to which I have arrived.

The judgment of the supreme court must therefore be affirmed.

All the judges (except Rtjggles, J., who gave no opinion on the demurrer) concurred in the above opinion upon all the points discussed.

Judgment affirmed.