text:
    Luciano Ruiz et al., Respondents, v. Charles Renauld et al., Appellants.
    An absolute authority to draw is equivalent to an unconditional promise to pay a bill of exchange; and the authority need not be phrased in the precise and formal language of a legal document.
    In an action upon certain bills of exchange drawn upon defendants at New York by the firm of Van A. & Co. of Havana, and sold by the drawers to plaintiffs, the latter were allowed to prove, under objection and exception, in substance, that prior to the drawing of the bills in question, defendants had agreed with Van A. & Co. to accept their drafts at sixty days, to be covered at maturity by renewing the drafts, the whole amount of credit to be paid during the next season ; certain of these drafts, which defendants had accepted to the amount of $37,000, being about to mature, Van A. & Co. wrote to defendants, in substance, that they would be unable to settle their debt during that season, and asked to have their drafts and remittances continued as before until the next crop. The method of procedure agreed upon and practiced for renewal was for Van A. & Co., before the maturity of a draft, to draw on defendants at sixty days, sell the draft and remit the proceeds to take up the draft maturing. To this letter defendants replied, postponing an answer as to the credit requested until the return of an absent partner, adding: “ In the mean time we rely upon the renewal ot the $87,000.’" Van A. & Co. drew upon defendants for $15,000, sold the draft, and remitted the proceeds. Defendants cabled : “ Why only $15,000 ; must send $22,000 first steamer.” Van A. & Co. thereupon drew for the latter amount, and sold the drafts, which were the ones in suit, to plaintiff, defendants’ letter having been shown to him, and he purchasing in reliance thereon. The proceeds -were remitted to and received by defendants. Held, that the evidence was properly received ; that the letter read in the light of the surrounding circumstances was explicit, and plainly authorized the drawing of the drafts, and that defendants were liable thereon.
    (Argued October 14, 1885;
    decided October 30, 1885.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, in favor of plaintiffs, entered upon an order made August 7, 1883, which overruled exceptions, which were ordered to be heard at first instance at Special Term, and directed judgment on a verdict.
    This action was brought to recover the amount of five bills of exchange, drawn by the firm of F. Van Asche & Co., of Havana, upon defendants,'who composed the firm of Renauld, Francois & Co. in Hew York, at sixty days, for the aggregate amount of $22,000, which bills defendants refused to accept or pay.
    The following facts were proved on the trial under objection and exception. In June, 1879, the firms of Van Asche & Co. and Renauld, Francois & Co. entered into an agreement by which the latter firm agreed to open to the former a credit of $80,000, to be drawn at sixty days, to be covered before maturity by renewing the drafts “ until the whole amount has been paid during the next season ” by consignments of sugar. The contract stated that “respecting the renovation of the drafts the former are to be covered before maturity by short sight drafts.”
    Bills drawn upon and accepted by defendants’ firm under this agreement to the amount of $37,000 were payable July 29, 1880. On July 3, 1880, Van Asche & Co. wrote to defendants, stating, in substance, that, for reasons given, they were unable to settle their accounts during “this present season,” adding : “ We are emboldened to expect that you will allow us to continue our drafts and remittances as we had been doing till now, and liquidate during the next crop.” Defendants answered under date of July 9, 1880, as follows: “We would like to be able to reply to you at once on this subject, but we must ask you to allow us to delay doing so for a fortnight, for we would wish to consult beforehand with our Mr. Amy, who just at present is in Colorado, whence he will not return until the 20th or 25th instant. In the mean time, we naturally rely upon the renewal of the $37,000, which fall due the 29th instant.” On July 14 Yan Asche & Co. drew upon defendants for $15,000, sold the draft and remitted the proceeds, with a letter of advice, dated July 17, on receipt of which defendants sent a cablegram to Yan Asche & Co., as follows: “ Why. only $15,000; must send $22,000 by first steamer.” In reply Yan Asche & Co. cabled: “ $22,000 Saturday steamer.” On July 22, 1880, Yan Asche & Co. drew the bills in suit for the $22,000, which they sold to plaintiffs, who purchased on the faith of defendants’ letter of July 9, and the proceeds were remitted to and received by defendants.
    Further facts appear in the opinion.

      S. P. Nash for appellants.
    The letter of July 9 was not equivalent to a promise to accept within the statute. (1 R S. 768, § 8; Merchants' Bk. v. Griswold, 72 N. Y. 472; Barney v. Worthington, 37 id. 112 ; Ulster Co. Bk. v. McFarlan, 5 Hill, 432; 3 Den. 533; Bank of Michigan v. Ely, 17 Wend. 508.) If, upon all the facts, the letter would by merchants be considered as an authority to draw, the question was one for the jury. (First Nat. Bk. v. Dana, 79 N. Y. 108.) A creditor who gets paid with money raised by improper means at the expense of another with whom he is in no privity cannot be made liable in personam, unless he has made himself liable otherwise than by merely accepting funds paid upon a just indebtedness. There must be in the transaction either the element of agency (Nat. Trust Co. v. Gleason, 77 N. Y. 400; 78 id. 503), or the party defrauded must be able to trace the money directly to the hands of the party receiving it, as in the case of trust funds. (Ferris v. Van Vecchten, 73 N. Y. 113.)

      Joseph A. Shoudy for respondents.
    An unconditional promise by a drawee to accept a bill to be thereafter drawn is equivalent to an actual acceptance. (Greele v. Parker, 5 Wend. 417; 1 R. S. 768, § 8 ; 3 id. [7th ed.] 2243; Louisana Nat. Bk. v. Schuchardt, 15 Hun, 409.) An absolute authority to draw a bill is equivalent to an unconditional promise to accept it when drawn. ( Ulster Co. Bk. v. McFarland, 5 Hill, 432; Bank of Michigan v. Ely, 17 Wend. 510; Barney v. Worthington, 37 N. Y. 116; Johnson v. Clark, 39 id. 216; Merchants' Bk. v. Griswold, 72 id. 472; Merchants' Bk. v. Cardoza, 3 J. & S. 166 ; Gelpcke v. Quintell, 74 N. Y. 599; Germania Nat. Bk. v. Taak, 31 Hun, 261.) The absence of technical promissory words is of no practical moment where the language employed is such as to raise an imperative legal obligation. (Barney v. Worthington, 37 N. Y. 116; Michigan v. Ely, 17 Wend. 510; Ulster Co. Bk. v. McFarland, 5 Hill, 432.) Defendants cannot enjoy the benefit of the transaction consummated through F. Van Asche & Co., without at the same time adopting all the instrumentalities by which it was brought about. (Bennett v. Judson, 21 N. Y. 238; Elwell v. Chamberlin, 31 id. 611; Baker v. U. M. Ins. Co., 43 id. 288 ; Dutton v. Willard, 52 id. 218 ; Fishkill S. Inst. v. Nat. Bk., 80 id. 170.) The agreement having been in part performed it was not within the power of the defendants to recede from it, and they should be held to its full performance. (Johnson v. Clark, 39 N. Y. 216.) The case was properly disposed of as one involving only questions of law. ( Underhill v. Vandervoort, 56 N. Y. 242; White v. Myles, 73 id. 335; First Nat. Bk. v. Dana, 79 id. 108, 115, 116.)
   Finch, J.

The plaintiffs’ right of recovery depends upon the effect of defendants’ letter of July 9,1880, read in the light of the surrounding circumstances. What these were, the evidence establishes without dispute or controversy, so that no question of fact remained for the consideration of the jury, and no error was committed by the trial court in treating the case as involving only a question of law. ( Underhill v. Vandervoort, 56 N. Y. 242; White's Bank v. Myles, 73 id. 335.) The letter referred to was written by the defendants in answer to one from Van Asche & Oo. which stated an inability to settle their debt to the defendants during that season, and sought a delay of ultimate payment expressed in these words, viz.: For this reason we are emboldened to expect that you will allow us to continue our drafts and remittances as we had been doing till now, and liquidate during the next crop.” The defendants replied; regretting the emergency; postponing an answer to the desired extension of credit until the return of an absent partner; but since drafts for $37,000 were about to mature which the defendants had accepted, and for which resources were to be provided in advance of the partner’s return and the final answer promised, the letter added: In the mean time we naturally rely upon the renewal of the $37,000 which fell due the 29th instant.” Of course that renewal contemplated a temporary continuation of credit and delay of ultimate payment to be accomplished in the manner indicated by the letter of Van Asche & Oo. and by the .process of drafts and remittances ” which had characterized the dealings of the parties. What that process was the evidence fully discloses, and the explanation was properly permitted to be proved.

Van Asche & Go. would draw sixty-day drafts upon the defendants and procure funds by their sale, remitting the proceeds by short drafts purchased, thus in each instance putting the defendants in funds with which to meet their acceptances; and a continued repetition of the process operating to postpone the final payment of Van Asche & Oo. and carrying their debt through the agency of defendants’ credit. It was to this process and this mode of renewal that Van Asche & Co. referred in asking an extension, and to the same process that defendants referred when they in substance requested the renewal of the $37,000 as a temporary arrangement in advance of a final consent or refusal to extend liquidation to the next crop. Upon this understanding of the correspondence both parties acted. Van Asche & Co. drew upon the defendants at sixty days, and having sold drafts for $15,000, remitted that amount to defendants, who expressed surprise and cabled to Havana the inquiry why only $15,000 ; must send $22,000 first steamer,” to which Van Asche & Co. replied “ $22,000 Saturday steamer.” It is beyond question that the defendants perfectly understood that these remittances were the product of drafts drawn on them in the usual way, and in accordance with the request contained in their letter. Van Asche & Co. sold their draft on defendants for $22,000 to the present plaintiffs, who were shown the letter of authority, and parted with their money upon its faith. Payment of the drafts having been refused, this action was brought. It is conceded that an absolute authority to draw is equivalent to an unconditional promise to pay the draft; (Merchants' Bank v. Griswold, 72 N. Y. 472); but the appellants’ contention is that the language of the letter is not explicit, does not promise to accept and pay, and is ambiguous. Reading it in the light of its surroundings, it is explicit and unambiguous. It requests a renewal of the character and by the process which both parties understood, and plainly authorized the drafts which were made. Special promissory words were unnecessary, where the language employed sufficiently imported a legal obligation. The authority need not be phrased in the precise and formal language of a legal document. Mercantile correspondence rarely has that characteristic, and often is abbreviated and assumes what is readily understood. It is enough in the present case that the defendants’ letter authorized the draft when it requested the renewal which could only be made by that process, and was expected so to be made.

JSTo error was committed on the trial, and the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    George W. Smiley, Respondent, v. Horace B. Fry, Survivor, etc., Appellant.
    (Argued October 15, 1885 ;
    decided October 30, 1885.)
    A firm, of which defendant is the surviving partner, in May, 1864, executed and delivered to plaintiff’s assignor, upon receipt of the sum specified therein, an instrument, the body of which is as follows : “Due S. K. Ashton, M. D., Trustee, §4,000, returnable on demand. It is understood that this sum is specially deposited with us and is distinct from the other transactions with said Ashton.” In an action upon the same wherein the statute of limitations was set up as a defense, held that it was in the nature of a certificate of deposit, not a promissory note; that no cause of action arose thereon until a demand was made for the sum deposited ; and, as the jury found from evidence justifying the finding that no demand was made until 1880, that the action was not barred by the statute. °
    Appeal from judgment of the General Term of the Superior Court of the city of ¡New Tort, entered upon an order affirming a judgment in favor of plaintiff, entered upon a verdict and affirming an order denying a motion for a new trial. (Reported below, 17 J. & S. 134.)
    This action was brought among other things upon an instrument in writing executed by a firm, of whom defendant is the surviving partner, and delivered to S. K. Ashton, plaintiff’s assignor, at the time of the delivery to said firm of. the amount of money stated therein.

      “ $4,000. Office of J. R. & H. B. Fby, )

    134 South Thibd Stbeet, > .

    Philadelphia, May 21, 1864. ) .
    “ Due S. ¡K. Ashton, M. D., Trustee, Four Thousand Dollars, returnable on demand. It is understood this sum is especially deposited with us, and is distinct from the other transactions with said Ashton.
    “J". R. & H. B. Fby.”
    Among other defenses defendant pleaded the statute of limitations.
    Further facts appear in the opinion.

      G. W. Cotterill for appellant.
    The instrument in suit has all the attributes of a promissory note. (Chitty on Bills [12th. Am. ed.] 150, note 3, 152; Wheeler v. Warmer, 47 N. Y. 520; Appeal of Andress’ Executors, 99 Penn. St. 421; Kilgore v. Bulkley, 14 Conn. 363 ; Bank of Orleans v.Merrill, 2 Hill, 295 ; Sibra v. Tripp, 15 Mees. & Wels. 23 ; Kimball v. Huntington, 10 Wend. 675 ; McMullen v. Rafferty, 89 N. Y. 459.) It was barred by the statute of limitations. ( Wheeler v. Warner, 47 N. Y. 520; Angell on Limitations, 93; Laforge v. Jayne, 9 Penn. St. 410; Appeal of Andress’ Ex’rs, 99 id. 421; Fell’s Point Sav. Bk. v. Weedon, 18 Md. 320; Bellows’ Falls Bk. v. Rutland Co. Bk., 40 Vt. 377; Munger v. Albany City Bk , 85 N. Y. 586.) Hnder the circumstances of this case the demand for the deposit should have been made within the six years, and the action should have been brought within six years from that time. (Coleman v. Roders, 10 Pick. 118; Laforge v. Jayne, 9 Penn. St. 410.) The assertion of a hostile claim, or the existence of any facts which indicate to the depositor that the claim will not be paid, sets the statute in motion. (Boughton v. Flint, 74 N. Y. 482; Watson v.Phoenix Bk., 8 Metc. 217 ; Stanford v. Tuttle, 4 Vt. 82; Collard v. Tuttle, id. 491.) The demand must be made in a reasonable time, or at least during the limitation ordinarily prescribed by statute. (Morrison v. Mullen, 34 Penn. St. 12; Laforge v. Jayne, 9 id. 410.) Where there is no conflict of evidence the question whether it is sufficient to support the verdict is one of law, and the point can be raised on a motion for a new trial although not mentioned on the trial. (Shearman v. Henaerson, 42 How. 399; Halpin v. Third Ave. R. R. Co., 40 27.1. Supr. 175; Bliss’ Code, 817.) The question as to whether or not the transaction was a mere deposit should have been left to the jury. (De Lavallette v. Wendt, 75 N. Y. 479 ; Hotchkiss v. Mosher, 48 N. Y. 478.)

      George H. Adams for respondent.
    The transaction evidenced by the certificate was a deposit. (Payne v. Gardner, 29 N. Y. 146, 167.) No cause of action accrued until an actual demand and, therefore, the statute did not run until after demand. (Howell v. Adams, 68 N. Y. 314; Boughton v. Flint, 74 id. 482; Munger v. Albany Bk., 85 id. 580; Bank of B. N. A. v. Merchants’ Bk., 91 id. 106.) The survivor and the representatives of the estate of the deceased partner are not jointly obligated on this certificate, and, therefore, a demand on the representatives of J. E. Fry is not even a 'constructive demand on this defendant. (Lawrence v. Trustees, etc., 2 Den. 577; Troy I. & N. Factory v. Winslow, 11 Blatchf. 513; Bloodgood v. Bruen, 8 N. Y. 362; Jessop v. Miller, 1 Keyes, 321.)
   Miller, J.

The instrument upon which the recovery in this action is founded was in the nature of a certificate of deposit, and not a promissory note. It was evidently intended as a statement of the contract under which the makers received and held money which had been deposited by the payee with them.

The nature of the transaction must be determined by the construction to be placed upon the instrument itself. It declares that the sum named therein is due on demand, and that it is a special deposit distinct from other transactions with the payee. The language employed in no way indicates that the money was a loan and intended to be regarded as such. It provided that it was specially deposited, and was only to be repaid when it was demanded. The words used are clear and explicit, and negative the idea that the money was to be regarded otherwise than as a special deposit independent of any other transaction between the parties, and only to be returned when an actual demand was made for the same. The word “ due ” does not import an obligation or promise which can be-enforced without a demand, for it is expressly limited to the time when demanded. It is, therefore, only due when demanded. This portion of the instrument is qualified by the subsequent provision that the money is “ especially deposited.” The whole taken together establishes the special deposit as a separate transaction which is to become due, or to be paid when demanded, and no sooner. It in no way partakes of the character of a promissory note where there is an express agreement to pay without any qualification or restriction. Hone of the authorities cited by the appellant’s counsel uphold the rule that an instrument of the character of the one under consideration is a promissory note, and not a certificate of deposit merely. Being a deposit a demand of the money was essential to a right of action, unless there was a wrongful conversion or loss by some gross negligence on the part of the depositary. The distinction between a deposit and a loan is considered in Payne v. Gardiner (29 N. Y. 14-6), and within the rule there laid down the instrument in question was a certificate of deposit, and, in such a case, no indebtedness arose by reason of such deposit until a demand was made for the amount deposited. (See, also, Howell v. Adams, 68 N. Y. 314; Boughton v. Flint, 74 id. 476.)

As the instrument in question was not a promissory note but a certificate of deposit, the defense of the statute of limitations, interposed by the defendant, was not available for the reason that a demand of the money deposited was not made prior to six years before the commencement of the action. The plaintiff proved on the trial that a demand was made some time in the year 1880, and claims that this was the only demand ever made of the amount named in the certificate. It is not denied that a demand was made at that time, but the defendant sought to establish a constructive demand by proof showing an action brought by Ashton, the payee, in 1870, in Philadelphia. The proof showed that that action was brought against the executrix of J. B. Fry, and that, although this defendant, H. B. Fry, was named as defendant therein, he was never served with process. There is no direct proof that the $4,000 was included in that suit. There is evidence of a letter of Ashton, which, it is claimed, shows that'the $4,000 was included in that action, and of a conversation of Ashton with the defendant in which he told him he had brought suit against the executrix, but that he, defendant, had not been served. There is also some other testimony, but the most that can be claimed is that the evidence was conflicting on the subject. As the jury have passed upon the question adversely to the defendant, there is no ground for urging that any demand was made prior to 1880. This question, however, has been sufficiently discussed in the opinion of the general term and requires no further comment.

The assignment to the plaintiff by Ashton transferred all his interest, and this included his' right as trustee to the instrument in suit.

Mo other question demands discussion.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Ruger, Ch. J.

text:
    Andrew Probst, Respondent, v. Addison H. Delamater, Appellant.
    Upon a question as to whether a master was in fault for ap injury to his servant, caused hy the breaking away and falling of heavy materials which were being hoisted by machinery, evidence that the engineer ‘ having charge of the machinery at the time was intoxicated is proper; it tends legitimately to prove his incompetency to perform his duties.
    A refusal of the court to charge in a civil action that defendant is entitled to any doubt which the jury may have is not error.

      It seems, that the duty of a master to furnish safe, suitable and sound tools, machinery and appliances for the use of his servant in the performance of his work and to keep them in repair is not an absolute one ; it is satisfied by the exercise of reasonable care and prudence on the part of the master, such as a prudent man would take for the protection of his own person. The master is not liable, therefore, for injuries resulting from a defect which could not be discovered by careful inspection or the appli-. cation of appropriate tests.
    Where, however, in an action to recover damages for injuries to an employe of defendant, caused by the breaking of a cable which was being used in connection with a derrick for hoisting a heavy weight, the court charged that “it was the duty of the defendant to furnish, a safe and secure rope or cable at the commencement of the work,” and if the jury found that the cable in question was not a safe and secure one, in the first instance defendant was guilty of negligence. Held, that, while thd rule as stated was broader than was justified, yet as there was no evidence of any care on the part of defendant in selecting the cable, and as the attention of the court was not called to the proper qualification of the rule, it was not error to omit allusion to it in the charge.
    (Argued October 16, 1885;
    decided October 30, 1885.)
    Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made April .4, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict.
    This action was brought to recover damages for injuries sustained by plaintiff alleged to have been caused by defendant’s negligence.
    Defendant was engaged in constructing a sewer in the city of Buffalo, and used a steel cable in connection with a derrick and steam engine to hoist the earth and rock from the excavation. A box filled with these materials fell in consequence of the breaking of the cable, and plaintiff, a laborer in defendant’s employ, was seriously injured.
    The further material facts are stated in the opinion.

      Edmund J. Plumley for appellant.
    The proper way to prove the unfitness of the engineer was by showing his general reputation. ( Warner v. N. Y. C. R. R. Co., 44 N. Y. 465; Baulec v. N. Y. & H. R. R. Co., 59 id. 36; Chapman v. Erie Ry. Co., 55 id. 579.) The defendant was in no way liable unless he had been negligent in his selection of the engineer, or in retaining him in his service with notice of his incompetence or unfitness. He did not warrant his fitness to his other servants. (Shearm. & Redf. on Neg. [3d ed.], § 86; Wright v. N. Y. C. R. R. Co., 25 N. Y. 562; Malones v. Hathaway, 64 id. 810, Ross v. N. Y. C. & H. R. R. R. Co., 74 id. 617; Besel v. Same, 70 id. 171; Crispin v. Babbitt, 81 id. 520; Perry v. Lansing, 17 Hun, 44; Gibson v. N. Y. C. R. R. Co., 22 id. 289.) The negligence of the engineer was not the negligence of the defendant, but of a co-servant of the plaintiff for which defendant was not liable. (Sammon
      v. N. Y. & H. R. R. Co., 62 N. Y. 251; Crispen v. Babbitt, 81 id. 516; Slater v. Jewett, 85 id. 63; McCosker v. L. 1. R. R. Co., 84 id. 77; Harvey v. N. Y. C. & H. R. R. R. Co., 88 id. 481; Brick v. R. N. Y. & P. R. R. Co., 21 N. Y. Weekly Dig. 14; Turner v. Chateaugay Ore Co., id. 40.) The burden of proof as to defendant’s “ knowledge, or culpability in lacking knowledge ” of the character of the engineer rested upon the plaintiff. (Shearm. & Redf. on Neg., § 99; Lamb v. C. & A. R. R. Co., 46 N. Y. 279; Chapman v. Erie Ry. Co., 55 id. 585 ; Rose v. B. & A. R. R. Co., 58 id. 217; Claflin v. Meyer, 75 id. 260; Wright v. N. Y. C. R. R. Co., 25 id. 566; Henry v. S. I. R. R. Co., 81 id. 373.) Defendant was bound to exercise only ordinary care in the selection and furnishing of such machinery and apparatus, and in keeping it in proper and safe condition. (Leonard v. Collins, 70 N. Y. 90.) There was no implied warranty in the contract of service that the machinery and apparatus were sound or fit for the purpose, or that the plaintiff should not be exposed to extraordinary risks. (Shearm. & Redf. on Neg., § 87; Warner v. Erie Ry. Co., 39 N. Y. 468 ; De Graffe v. N. Y. C. & H. R. R. R. Co., 76 id. 125 ; Jones v. N. Y. C. & H. R. R. R. Co., 22 Hun, 284; Painton v. N. Y. C. R. R. Co., 83 N. Y. 12; Slater v. Jewett, 85 id. 61; Devlin v. Smith, 89 id. 470; Wrights v. N. Y. C. R. R. Co., 25 id. 566; Turner v. Chateaugay Ore Co., 21 N. Y. Weekly Dig. 40.) It was for the plaintiff to prove that proper tests had not been applied, thé law presuming that ordinary care had been exercised. (Wood’s Mast. & Serv., § 419; Rose v. B. & A. R. R. Co., 58 N. Y. 222; De Graffe v. N. Y. C. & H. R. R. R. Co., 76 id. 131; Henry v. S. I. R. R. Co., 81 id. 373; Wright v. N. Y. C. R. R. Co., 25 id. 567; Baulec v. N. Y. & H. R. R. Co., 59 id. 366; Hayes v. 42d St. R. R. Co., 97 id. 259.) To carry a case to a jury the evidence, on the part of the plaintiff, must be such as, if believed, would authorize them to find that the injury was occasioned solely by the negligence of the defendant. (Johnson v. H. R. R. Co., 20 N. Y. 65; Wilds v. Same, 24 id. 430; Reynolds v. N. Y. C. & H. R.

      R. R. Co., 58 id. 24.8; Sammon v. N. Y. & H. R. R. Co., 62 id. 251; Leonard v. Collins, 70 id. 90; Hale v. Smith, 78 id. 480 ; Hart v. H. R. R. Co., 84 id. 56 ; Ricemam v. Havemeyer, id. 647; Owen v. N. Y. C. R. R. Co., 47 id. 670; Gibson v. Erie Ry. Co., 63 id. 449 ; Brick v. R. N. & P. R. R. Co., 21 Weekly Dig. 14.) If it could be claimed that defendant’s superintendent was, in any way, negligent, still the defendant should not be held liable, for his negligence would have been the negligence of a co-employe. (Sammon v. N. Y. & H. R. R. Co., 62 N. Y. 251; Crispin v. Babbitt, 81 id. 516; Slater v. Jewett, 85 id. 63 ; McCosker v. L. I. R. R. Co., 84 id. 77; Turner v. C. Ore Co., 21 N. Y. Weekly Dig. 40.) The plaintiff was bound to show by a preponderance of proof that he was not guilty of contributory negligence. (Hale v. Smith, 78 N. Y. 480; Hart v. Hudson R. B. Co., 84 id. 62; Riceman v. Havemeyer, id. 647; Leonard v. Collins, 70 id. 90; Brick v. R. N. Y. & P. R. R. Co., 21 N. Y. Weekly Dig. 14.) The defendant was not bound absolutely and at all hazards to furnish, in the first instance, a safe and secure cable, a cable in all respects without flaw or defect of any kind. He was only called upon to exercise ordinary care in that behalf. (Shearm. & Redf. on Neg., §§ 87, 92 ; Wood’s Mast. & Serv., § 428; Wright v. N. Y. C. R. R. Co., 25 N. Y. 566; Ross v. N. Y. C. & H. R. R. R. Co., 74 id. 617; Jones v. Same, 22 Hun, 284; Warner v. Erie Ry. Co., 39 N. Y. 471; Leonard v. Collins, 70 id. 94; Fuller v. Jewett, 80 id. 53; Painton v. N. Y. C. R. R. Co., 83 id. 7; Slater v. Jewett, 85 id. 61.) It was not true that a mere breaking of the cable cast upon the defendant the burden of proving that he had exercised proper care. (Wood’s Mast. & Serv., § 419; Dudley v. N. Y., L. E. & W. R. R. Co., 20 N. Y. Weekly Dig. 118.) If the jury entertained any doubt upon the question of whether plaintiff’s injuries resulted solely from defendant’s negligence and without any fault on the part of the plaintiff, defendant was entitled to the benefit of the doubt. (Hale v. Smith, 78 N. Y. 483, 484.)

      Wm. L. Jones for respondent.
    The question, what condition the engineer was in the morning of the accident was proper; it was one step to show that they employed and kept drunken and incompetent hands to run the engine as alleged in the c0omplaint. (Fishkill S. I. v. Bank, 80 N. Y. 168 ; Kennedy v. Green, 3 M. & K. 699.) The defendant or his superintendent having hired or kept as an engineer a man after he had fallen into the habit of being intoxicated, the defendant must be held to have assumed any risk that might arise on his account. (80 N. Y. 168 ; Cleghorn v. N. Y. C. & H. R. R. R. Co., 56 id. 44.) Plaintiff had a right to rely upon what was said and upon the greater knowledge and judgment of the foreman, (Bradley v. N. Y. C. R. R. Co., 62 N. Y. 99.) The defendant is chargeable with any negligence of the superintendent; he having withdrawn from the control and superintendence of the work and surrendered the construction of the sewer to a superintendent, he stands in the defendant’s place and is liable for the superintendent’s negligence. (Lanning v. N. Y. C. R. R. Co., 49 N. Y. 521; Malone v. Hathaway, 64 id. 5; Rounds v. L. & W. R. R. Co., id. 129; Cohen v. D. D., E. B. & B. R. R. Co., 69 id. 170; McMahon v. P. H. I. O. Co., 24 Hun, 48; Stevenson v. Jewett, 8 Weekly Dig. 4; Moak’s Underhill on Torts, 30.) The evidence shows the plaintiff was careful and no ways negligent. (Bateman v. Ruth, 8 Daly, 378; Stackus v. N. Y. C. & H. R. R. R. Co., 69 N. Y. 464; Hayes v. Miller, 17 id. 112.) The facts were sufficient to go to the jury. (Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 464; Hayes v. Miller, 17 id. 112; Chapman v. Erie Ry. Co., 55 id. 586; Brickner v. N. Y. C. R. R. Co., 2 Lans. 506; 1 Addison on Torts, 23; Scott v. L. D. Co., 34 L. J. Exch. 17 ; Byrne v. Boade, 33 L. J. [N. S.] Exch. 13; Briggs v. Oliver, 35 L. J. Exch. 163; Curtis v. R. & S. R. R. Co., 18 N. Y. 534.) It was the duty of the defendant to furnish its employes for use in the prosecution of its business good and suitable machinery and keep it in repair. (Cone v. D., L. & W. R. R. Co., 81 N. Y. 206; Power v. N. Y., L. E. & W. R. R. Co., 32 Hun, 415; Ryan r. Fow

      ler, 24 N. Y. 414; Kirkpatrick v. N. Y. C. & H. R. R. R. Co., 79 id. 240; Chapman v. Erie Ry. Co., 55 id. 585; Malone v. Hathaway, 2 N. Y. Sup. Ct. [T. & C.] 664; Brickner v. N. Y. C. R. R. Co., 2 Lans. 517; Flike v. B. & A. R. R. Co., 55 N. Y. 549; Kain v. Smith, 80 id. 458.) It was incumbent upon plaintiff to satisfy the jury, by a preponderance of proof, that the injury had been occasioned by the negligence of defendant and that he himself was free from fault. (Hale v. Smith, 78 N. Y. 483; 1 Greenl. on Ev., § 2.)
   Ruger, Ch. J.

We are of the opinion that no exception appears in the case requiring the reversal of the judgment. The question as to the contributory negligence of the plaintiff was one of fact, and was properly submitted to the jury upon conflicting evidence. The charge of negligence against the defendant was predicated upon two specifications, viz.: the first importing that the injury to plaintiff was occasioned by the use of old and defective appliances, in the prosecution of the work in which he was employed, and the other charging the defendant with knowingly employing improper, drunken and incompetent assistants, to aid in such work. Some evidence was given in support of both of these specifications (Miller v. N. Y. C. & H. R. R. R. Co., 99 N. Y. 657.)

An exception was taken to the admission of evidence tending to show that the engineer in charge of the hoisting apparatus on the morning in question, was intoxicated. The objection taken was stated to be that the evidence was immaterial and did not tend to show that he was an unsafe engineer. It is quite certain that the intoxication of a person-having charge of machinery used in hoisting heavy materials, liable from their great weight to break away and fall, is, quite material upon an issue as to who was in fault for an injury occurring from such a fall, and tended legitimately to prove the incompetency of such engineer to perform the duties with which he was charged. Whether the proof was sufficient to establish the allegation, or required additional evidence to charge the defendant with knowledge of the fact, was quite a different question, and was not raised by the objection. The exception, therefore, was not well taken.

It may also be said that no motion was made to strike out this evidence, neither was any request made to the court to charge in reference thereto. It seemed to be assumed by all parties that the evidence of incompetency from drunkenness was insufficient, to support the charge of negligence, and the case was not put to the jury on that ground.

An exception was also taken to the refusal of the court to charge that the defendant was entitled to any doubt which the jury may have. This exception, within the rule laid down in Seybolt v. N. Y., L. E. & W. R. R. Co. (95 N. Y. 570), was not well taken.

The only remaining exception requiring notice is that taken to the charge, stating that it was the duty of the defendant to furnish a safe and secure rope or cable at the commencement of the work; that if they find this cable was not a safe and secure cable in the first instance the defendant was guilty of negligence.” The rule as stated was undoubtedly broader than the authorities would justify, and if the attention of the court had been called to the point, and it had then refused to charge the proper qualifications of the rule, it would have been error. Although the duty in question has been stated in several cases in this court, substantially in the language used in this case, it has generally occurred in defining the duty of the master as distinguished from that which may be delegated to a subordinate, and because the circumstances of the particular case did not call for the application of the limitations to the rule. (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y. 368; Kain v. Smith, 80 id. 458; Cone v. Del., L. & W. R. R. Co., 81 id. 206; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id. 552.) The duty of the master to furnish safe, suitable and sound tools, machinery and appliances for the use of the servant in the performance of the work of the master, and to keep them in repair, is not an absolute one, and is satisfied by the exercise of reasonable care and prudence on the part of the master in the manufacture, selection and repair of such appliances. (Fuller v. Jewett, 80 N. Y. 46 ; Painton v. Northern Cent. R. Co., 83 id. 7 ; Ellis v. N. Y., L. E. & W. R. R. Co., supra ; Burke v. Witherbee, 98 N. Y. 562.)

This is a duty which cannot be delegated to a servant so as to excuse the master from damages occurring through an omission to perform it, yet when the master has exercised all of the care and caution, which a prudent man would take for the safety and protection of his own person, the law does not hold him liable for the consequences of a defect which could not be discovered by careful inspection or the application of appropriate tests to determine its existence. The attention of the court below was not in any way called to this question, and as the evidence did not show the exercise of any care on the part of the master in selecting the appliances used, it was not error for the court to omit allusion to it in the charge.

The judgment should be affirmed.

All concur.

Judgment affirmed.


author: Earl, J.

text:
    The People, ex rel. Ephraim L. Van Aken, Overseer of the Poor, etc., Appellant, v. Warren Millham et al., Respondents.
    Defendant M. having been arrested as the reputed father of a bastard child, and the hearing having been adjourned at his request, gave a bond with the other defendants as sureties, conditioned that he would personally appear before the justices on the adjourned day and “ not depart therefrom without leave of such justices.” On the adjourned day -M. appeared and the hearing began, but was not completed; at the request of counsel on both sides it was adjourned to a day named. On that day M. did not appear. In an action upon the bond, held, that his non-appear-once was a breach of the condition and defendants were liable.

      It seems that the meaning and effect of the bond would have been the same if it had been simply conditioned as prescribed by the statute authorizing the taking of a bond in such case (1 R. S. 644-, § 13), i. e., had the words “ and not depart therefrom without leave of such j ustices ” been omitted; that the object of the statute is not simply to secure the at-. tendance of defendant at the. adjourned day, but during the trial until the termination thereof.
    (Argued October 19, 1885;
    decided October 30, 1885.)

      It seems also that a different rule might apply where an adjournment is granted before the. commencement of the proceedings.

      People, ex rel. v. Millham (29 Hun, 151), reversed.

      People v. Greene (6 Hill, 647), distinguished.
    Appeal from order of the General Term of the Supreme Court, in the third judicial department, made January 23, 1883, which reversed a judgment in favor of plaintiff, entered upon a verdict. (Reported below 29 Hun, 151.)
    The nature of the action and the material facts are stated in the opinion.

      A. T. Clearwater for appellant.
    The bond in suit was authorized by the statute. (1 R. S., ch. 20, tit. 6, §§ 12, 17.) The prisoner was bound not only to appear but to give his continued attendance until the examination and subsequent proceedings were finally closed; having failed to do so there was a breach of the bond, and the action of the court in directing a verdict for the plaintiff was proper. (People v. Jayne, 27 Barb. 58 ; People v. McCoy, 39 id. 73.) Bonds in bastardy proceedings for reasons of public policy are construed with the utmost rigor against the obligors. (Falls v. Belknap, 1 Johns. 486 ; Rockefeller v. Donnelly, 8 Cow. 623 ; People v. Corbett, 8 Wend. 520 ; People v. Haddock, 12 id. 475; People v. Mitchan, 44 Barb. 245 ; Williford v. State, 17 Tex. 653 ; Howee v. State, 1 Ala. 113; People v. Moores, 4 Denio, 518; People v. Clark, 21 Barb. 214; Gildersleeve v. People, 10 id, 35 ; People v. Annable, 7 Hill, 73; Mooney v. People, 81 Ill. 134; State v. Wells, 36 Iowa, 238.) A bastardy bond taken with a single surety though irregular is valid and may be enforced against the obligors. (People v. Lyons, 7 Daly, 182; State v. Baker, 50 Me. 45; Paulk v. State, 52 Ala. 427.) The bond having been voluntarily given the sureties must be held to be concluded, and are bound by their undertaking. (Champlain v. People, 2 N. Y.
      82; Hawkins Pleas of the Crown, B. 2, chap. 15, §§ 3, 84; PetersdorfE on Bail in Criminal Oases, 515.) All instruments in the nature of a recognizance are strictly construed against the party and his surety. (People v. Blankman, 17 Wend. 252; People v. Petry, 2 Hilt. 523; Sennard v. State, 2 Kelly, 137 ; State v. Stout, 6 Halst. 124; People v. Wilgus, 5 Denio, 58; People v. Huggins, 10 Wend. 465; Miner v. Safe, 1 Blackf. 236 ; McCarty v. Safe, 1 Blatchf. 338; Safe v. Willman, 3 Ohio, 14; Tyler v. Greenlow, 5 Band. 711; Dunham v. Heyden, 7 Johns. 381.) The verdict for the penalty of the bond was properly directed. (People v. Tilton, 13 Wend. 597 ; People v. Jayne, 2 Barb. 58.)

      Wm. Lounsbery for respondents.
    The plaintiffs cannot help their case by any consent of the parties at the time of the adjournment. They must stand upon the condition of the bond. All that took place at the time of the adjournment, so far as the sureties were concerned, was without consideration. It did not bind the defendant Turner, who was not present and not represented. (Reeves v. United States, 9 Wall. 13.) In respect to such a bond as the one in suit the court has no power to continue it in force, or renew it and make it applicable to the next term in any way, even with the assent of the obligors. It is not á recognizance; but a thing in pais, like any other deed ; and cannot be continued without a new bond. (People v. Greene, 5 Hill, 647; People v. Hawes, 1 Denio. 454; J. H. C. Ins. Co. v. Loenthal, 14 N. Y. Weekly Dig. 326; State v. Houston, 74 N. C. 174; Ogden v. People, 62 Ill. 64; Reeves v. U. S., 9 Wall. 13; People v. Swale, 33 Hun, 208.)
   Earl, J.

The defendant, Warren Millham, was arrested under a warrant issued by a justice of the peace of the town of Esopus, Dlster county, as the reputed father of a bastard child likely to be born, and was brought before the justice, who called to his aid another justice, and at the request of Millham the hearing of the matter was adjourned to June 7, 1879 ; and in. pursuance of the statute he gave a bond, with the two other defendants as sureties, conditioned that he would personally appear before the justice at the time and place to which the adjournment was had and not depart therefrom without leave of the justices.

On the day named, which was Saturday, Millham appeared and the hearing and examination began and there continued all that day without completing the same, and then the counsel on both sides having engagements at a County Court which was to commence its session upon the following Monday, upon their request and assurance to the justices that the bond would hold the sureties, the case was adjourned to the 26th of June, 1879. On that day Millham did not appear, although duly called.

This action was commenced upon the bond to recover for a breach of the conditions thereof, and at the trial the defendants objected that there was no breach of the bond, as Millham had appeared at the time and place mentioned therein and had departed with the leave of the justices; but the trial judge held that there was a breach and directed a verdict in favor of the plaintiffs for the amount of the penalty and interest thereon. From the judgment entered upon the verdict the defendants appealed to the General Term and there the judgment yras reversed and a new trial granted, on the ground that there had been no breach of the bond, and then the plaintiffs appealed to this court.

The sole question for our determination is whether, upon the undisputed facts, there was a breach of the bond.

By section 12 of title 6, chapter 20, of part 1 of the Bevised Statutes, it is provided that when the reputed father is brought before the justices and he shall require delay and give sufficient reasons therefor, they may adjourn the examination for any time, not exceeding six weeks, and shall take his bond, with sureties, for his appearance at such time before them, in the penalty” mentioned.

This bond was conditioned that Millham should personally appear before .the justices at the time and place named, and not depart therefrom without leave of such justices.” It is not claimed, and could not be, that the words quoted were inserted in the bond without authority of law, and that it was, therefore, illegally exacted. (People v. Jayne, 27 Barb. 581.) Without these words the bond would have the same meaning and would have to receive the same construction.

The purpose of the bond required by the statute is to release the defendant from arrest. Without it he would have to remain under arrest, as the examination could not proceed without his presence. (§ 11). If the sureties upon such a bond would be discharged whenever the justices should permit the defendant to leave the room where they were sitting ; or whenever they took a recess for dinner or adjourned to procure the attendance of a witness; or over night; or over Sunday ; or to meet the exigencies contemplated by section 20, the purposes of the statute and of the bond would be defeated. If such were the rule, the defendant would have to be placed under arrest when he came to his examination, or he would have to bring his sureties with him so as to obtain their assent to the action of the justices. The object of the statute is not only to secure the attendance of the defendant at the adjourned day, but during the trial until the termination thereof. The bond binds him to appear at and during the examination, which may last one or several days, and which may, from the engagements of the justices, or other contingencies, be adjourned from time to time. If this case, after the examination had commenced, had been adjourned over night or over Sunday, would not the sureties have been bound? And if they would not be discharged in such case why should they be discharged by any adjournment for several days? After the examination has been entered upon there is no provision for a new bond, and it is not believed that the justices could exact a new one, and in default thereof order the defendant under arrest. Having given the bond he is entitled to be at liberty until the close of the examination and the decision thereon. When an examination is thus continued from day to day. or from week to week, it is a continuance of the same court held by the same justices, and it is the same examination and hearing; and. “ the leave to depart,” contemplated by the law, is the leave to go at the end of the examination, when the same has in some way been brought to a conclusion, so that the presence of the defendant is no longer required for any purpose, or some leave to go finally out of the court or from the court. Here there was no leave to the defendant to depart out of the court or from the examination ; but he was required to be and appear on the further hearing of the matter on the adjourned day.

This construction of the statute and the bond is made more clear by reference to section 17, which provides that during such examination, and until such person shall be discharged by the justices aforesaid, he shall remain 'in the custody of the constable who apprehended him, unless a bond shall have been taken for his appearance.” Thus plainly during the whole examination, whether it takes one day or weeks, the defendant must remain in custody, unless he has given the bond, and then during the same time the bond stands in the place of the custody, and entitles him to be at liberty.

If a criminal be bound by recognizance to appear at court for trial it has never been doubted that he is bound to remain during the trial to answer when called at any time until the conclusion thereof, and the trial may be postponed from day to day, or for several days, without discharging his sureties.

We do not go any further than the facts of this case. Here the hearing had commenced. A different rule might apply when, before the commencement of the examination, a postponement to a later day is made, for, in such a case, the justices might have the right to take a new bond as if one had never been given.

W e are not unmindful of the rule which forbids such a construction of the contract of suretyship as will extend or enlarge its scope beyond its plain terms or evident meaning. But this bond must be construed in reference to the statutes under which it was given, and so as not to frustrate the plain purpose for which it was taken; and, thus construing it, we think there was a breach of its conditions. '

The case of People v. Greene (5 Hill, 647), is not in point. There the defendant was bound to appear at a certain term of court, and, without entering upon the hearing, the case was postponed until the next term, and it was held that his failure to appear at the next term after that to which he was bound to appear did not constitute a breach of his bond. If in that case the hearing had been commenced at the first term, and had been postponed to any day during the same term, and the defendant had failed to appear at the adjourned day, then there would have been a different question, and no doubt in such case the court would have held that there was a breach of the bond.

We are, therefore, of opinion that the order of the General Term should be reversed, and the judgment entered upon the verdict affirmed, with costs.

All concur.

Order reversed and judgment affirmed.


text:
    In the Matter of the Attorney-General v. The Atlantic Mutual Life Insurance Company. James B. Jermain v. James Hendricks et al. ; William Barnes, Appellant ; Edward Newcomb, Receiver, etc., Respondent.

      It seems that the word “ assets” as used in the provision of the act of 1869 (§ 17, chap, 902, Laws of 1869), authorizing the court to appoint a “receiver of all the assets and credits” of a life insurance company, means all the property, real and personal, of such company, and the receiver upon his appointment becomes vested with the title to all of the property of the company, including its real estate, and no formal conveyance to him thereof is requisite.
    Where after the appointment of a receiver under said act, and after he had taken possession of certain of its real estate, a judgment was obtained against the company, and thereafter the real estate was sold on foreclosure. Reid, that conceding the formal title to such real estate remained in the company after the appointment of the receiver, as the latter had the equitable title and possession prior to the recovery of the judgment, his title was superior to the lien of the judgment, and he was entitled to any surplus arising on the foreclosure sale.
    (Argued October 20, 1885;
    decided October 30, 1885.)
    Appeal by William Barnes from an order of the General Term of the Supreme Court, in the third judicial department, made the fourth Tuesday in January, 1885, which affirmed an order of Special Term denying an application of the said Barnes for an order requiring Edward Newcomb, receiver of the Atlantic Mutual Life Insurance Company, to pay over to said Barnes, a-judgment creditor of said company, a sum in the hands of said receiver, claimed to, be a surplus arising on foreclosure sale.
    The material facts are stated in the opinion.

      William Barnes for appellant.
      N. C. IBook for respondent.

      The defendant holds the money as trustee merely without having parted with any actual consideration therefor, and is under an obligation to pay it to the party justly entitled thereto. (Mathews v. Duryee, 45 Barb. 70.) When land is sold under a judgment and the surplus money is brought into court, creditors having liens upon the land have the same liens upon the surplus money which they had upon the land previous to the sale. Their liens are transferred from the land to the surplus. (Averill v. Loucks, 6 Barb. 470.) The surplus money arising under a sale in foreclosure stands in place of the land. (Mathews v. Duryee, 45 Barb. 70 ; Blydenburgh v. Northrup, 13 How. Pr. 289.) The date and order of the lien of a judgment is in all eases a question of time, depending on the day and hour when the judgment was docketed. (Blydenburgh v. Northrup, 13 How. Pr. 289; Averill v. Loucks, 6 Barb. 471; People v. Rensselaer Ins. Co., 38 Barb. 324, 338; Kincaid v. Dwindle, 59 N. Y. 548; Willits v. Waite, 25 id. 583.) Money in the hands of a receiver is in custodia legis for whoever can make out a title. (Edwards on Receivers, 2; Willard's Eq. Jur. [Potter’s ed.] 48; 1 Story’s Eq. Jur. 99, § 106; Receiver v. Paterson G. L. Co., 23 N. J. L. [3 Zabr.] 293.)

      The appointment of a receiver by a court of equity vests in him the title to the debtor’s personal estate. But the title to the real estate is transferred only by force of the debtor’s own conveyance, which the court has power to compel him to execute. (Chautauqua Bank v. Risley, 19 N. Y. 370.) Under the provisions of the Be vised Statutes and the Code, the judgment of William Barnes against the company, docketed June 25, 1880, was the next lien to the purchase-money mortgage for $20,000, and the whole of the surplus moneys realized by the receivers over and above the amount of the said mortgage should be applied pro tcmto on the said judgment against the company. (1 Edm. R. S. 707, § 1; 2 id. 373; re-enacted § 1250, Code ; 2 Edm. R. S. 181; Code, § 1251; 3 Bank’s R. S. [7th ed.] 2194, 2195, §§ 136, 137.)
    The appointment of a receiver under chapter 202 of the Laws of 1869 vests the title to the real estate of the corporation in the receiver. (Continental Company, 28 Hun, 360; 93 N. Y. 630.) Upon the appointment of the receiver of the said company and all its assets, the title to the assets vested in the receiver for the creditors of the company. Neither the company nor any one acting under it could thereafter charge or incumber the assets vested in the receiver with any liability, or entitle one acting under or by authority of the company to any judgment against the receiver. (In re Berry, 26 Barb. 55; People v. Security, etc., 23 Hun, 576 : 71 N. Y. 226; Morgan v. New York, etc., 10 Paige, 290.)
   Earl, J.

Edward Newcomb was appointed receiver of the Atlantic Mutual Life Insurance Company on the 6th day of August, 1877, under chapter 902 of the Laws of 1869. At and prior to that date the company owned certain real estate which was subject to a mortgage given by a prior owner thereof. Immediately after his appointment the receiver took possession of the property of the company, including the real estate. On the 25th day of June, 1880, William Barnes, the appellant, recovered a judgment against the company, which was docketed in Albany county. On the 7th day of October, 1881, the receiver, pursuant to an order of the Supreme Court, sold the real estate to Barclay Jermain, for $10,400, subject to the prior mortgage. Some question having been made as to the receiver’s title, that sale was rescinded, and an agreement made between Jermain and the receiver that upon a foreclosure sale under the mortgage Jermain would bid for the real estate the amount due upon the mortgage, together with the costs of the foreclosure, and that he would pay the receiver the balance up to $31,010.54, the sum which he had agreed to pay, including the mortgage upon the prior sale. At the foreclosure sale, Jermain, in pursuance of this agreement, bid the amount due upon the mortgage and the costs, and paid over to the receiver, in addition thereto, upwards of $9,000. Thereafter, Barnes claiming that that sum was a surplus realized upon the foreclosure sale, made this motion to have his judgment paid out of the same on the ground that it was a lien upon the real estate subject to the mortgage, and prior and superior to the title of the receiver.

As appears by the opinion of the General Term, it was there held that the fund which Barnes claimed to have applied on his judgment was not strictly surplus money arising upon the foreclosure sale, and upon that ground the court denied his claim. We might rest our decision here upon the same ground. But there is another ground still more radical and satisfactory. The receiver, upon his appointment, became vested with the title to all the property of the company, including its real estate. Section 7 of the act of 1869 authorized the court to appoint “ a receiver of all the assets and credits ” of the company, and provided that the receiver, upon filing his bond, shall “ take possession of all the assets and credits ” of the company. The word “ assets,” where it is used in the several sections of that act, manifestly means all the property, real and personal, of any company coming under its provisions. dSTo provision is made in the act for any formal conveyance to the receiver, and it cannot be supposed to have been the intention of the legislature to leave the title to its real estate in the insolvent company subject to the risks of judgment liens or other complications. The purposes of the act require that such title should at once vest in the receiver, and we think the act should receive such a construction as to effectuate such purpose. It is not a general rule that a receiver can only take title from an insolvent person or corporation by a formal conveyance. The general rule is otherwise, as in the case of receivers appointed in supplementary proceedings, and receivers and assignees appointed in bankrupt proceedings, and in nearly all cases of the appointment of receivers of insolvent corporations. The title of receivers in such cases to real and personal property, both in this country and in England, is generally statutory, and not under any formal conveyance. But even if we are wrong in this, prior to the recovery of the judgment by Barnes, the receiver had the equitable title and the possession of the real estate. All the title, if any, which remained in the corporation was merely formal, and was held by it in trust for the receiver, which it could be compelled by the court at any time to convey to the receiver. The receiver’s title was, therefore, superior to and older than the lien of the judgment.

It is, therefore, clear that the order of the General Term is right, and should be affirmed, with costs.

All concur.

Order affirmed.


author: Andrews, J.

text:
    The People, ex rel. Wade Buckley, Appellant, v. The President of The Board of Trustees of The Village of Port Jervis, Respondent.
    The charter of the village of Port Jervis (§ 61, chap. 370, Laws of 1873) provides that “ the trustees, upon application of a majority of the persons who own lots fronting on a proposed street, such applicants being also the owners of more than one-half of the land to be taken for such proposed street, may lay out and establish any new street within the villoge; or upon application of such majority of the owners of lots fronting on any street, may discontinue or extend the same.” Held, it was not essential to the validity of an order of the trustees extending a street that the application therefor should be by a majority of the landowners who are also the owners of one-half the land taken for the extension; that an application signed by a majority of owners of the lots fronting on the original street was sufficient.
    (Argued October 20, 1885 ;
    decided October 30, 1885.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made May 14, 1885, which affirmed an order of Special Term affirming the proceedings and order of the board of trustees of the village of Port Jervis, extending Berme street in said village, which were brought up for review by certiora/ri.

    The material facts are stated in the opinion.

      John W. Lyon for appellant.
    A statute which confers on a municipal corporation the power to divest individuals of their property without their consent is to be strictly construed. (Sedgwick on Stát. Law, 351; Blackwell on Tax Titles, 38; Dougherty v. Hope, 1 Comst. 79; Sharp v. Stein, 4 Hill, 76; Ex parte Ward, 52 N. Y. 395; Rathbun v. Acker, 18 Barb. 393.) An act conferring the power to take private property for public purposes, being in derogation of private rights, is not to be extended by implication. (Rensselaer & S. R. R. Co. v. Davis, 43 N. Y. 137.) A thing within the intention is as much within the statute as if it were within the letter; is not within the statute if contrary to the intent. (Smith v. People, 47 N. Y. 330; Peoples. Utica Ins. Co., 15 Johns. 358.)

      C. E. Cuddeback for respondent.
    In the construction of statutes effect must be given, if possible, to all the language employed. (People v. Matsell, 94 N. Y. 182; McCluskey v. Cromwell, 11 id. 602.) The trustees of the village have power, under sections 58 and 61 of the charter act, to proceed without the certificate of freeholders, such as is required by cormnissioners of highways of towns. (In Matter of Laying out Livingston Street, 82 N. Y. 621.)
   Andrews, J.

The proceedings for the extension of Berme street in the village of Port Jervis, sought to be reviewed and set aside in this proceeding, contemplated the extension of Berme street through the lands of the relator, in a north-easterly direction from its present terminus, to the corporation line, a distance of about ninety-eight feet, to meet a highway to be laid out by the town of Deerpark. The application for the extension was signed by a majority of the owners of lots fronting on Berme street, but was not signed by the relator, whose lands were to be taken for the extension. The trustees of the village made an order extending the street pursuant to the application, and the relator, in his petition for the certiorari, alleges that the order is invalid and void for the reason that the municipal authorities have no jurisdiction to extend a street, except upon the application of a majority of the persons owning more than one-half of the land to be taken for the extension. This is the only question presented on this appeal, and its solution depends upon the construction of section 61 of the village charter. (Laws of 1873, chap. 370.)

That section provides that “the trustees upon application of a majority of the persons who own lots fronting on a proposed street, such applicants being also the owners of more than one-half of the laud to be taken for such proposed street, may lay out and establish any new street within the village; or upon application of such majority of the owners of lots fronting on any street, may discontinue or extend the same, or if it be less than three rods wide, may increase its width to a width not exceeding sixty-six feet.”

The section is divided into two clauses. By the first authority is given to lay out new streets. But the authority is conditional and not absolute, the condition being two-fold : an application by a majority of the land-owners, who shall also be the owners of more than one-half of the land to be taken. By the second clause authority is given to extend or discontinue streets upon the application of a majority of the owners of lots fronting on the street to be extended or discontinued. It does not in terms require that a majority of the owners of lands to be taken should unite in the petition for an extension of an existing street. The condition in the first clause is not incorporated into the last clause by the word such in the second clause. If the legislature had intended to make the qualifications of petitioners the same in both cases the object would have been readily accomplished by including in the first clause the power to extend existing streets, and the same condition would then have been applicable as in the case of the laying out of a new street. If the condition in the first clause should be held to be incorporated into the second, then to give jurisdiction to the trustees to extend a street, not only must a majority in number and amount of the owners of land to be taken petition for the extension, but in addition a majority of the lot-owners on the street proposed to be extended. The first clause requires that a majority of persons of the class designated shall be authorized to lay out a new street, and the words such majority’’ in the second clause, followed by a description of qualified petitioners in the ease of the extension of an existing street, simply adopt the principle that the petitioners under the second clause shall, as under the first clause, embrace a majority of the. class specified, before the authority conferred by the second clause shall be exercised. The language being plain, it is not important to find a reason for the discrimination made in respect to the two proceedings. It may have been considered that before a new street was laid out, a majority of the landowners whose lands were to be taken, should consent, but that in the extension of an existing street the general interests only should be regarded; and that the necessity of the latter improvement would be sufficiently indicated when a majority of the owners of lots on the street proposed to be extended petitioned for the improvement; and that the opposition of the owners of the land to be taken for the extension should not' bar the improvement. But however this may be, we think the meaning of the act is reasonably clear, and that the trustees had jurisdiction to extend the street" in question, the application therefor having been made by a majority of the lot-owners owning lots on the original street.

The judgment should be affirmed.

All concur.

Judgment affirmed.