text:
    Emma Keller and Others, Respondents, v. Henry Feldman, Appellant.

      Covenant in a contract of sale, but notin a deed, of land as to am, independent wall — rescission of the sale.

    Where a contract for the sale of a'house contains a covenant that one of the walls is an independent wall, hut the deed thereafter delivered contains no such covenant, and the wall is, in fact, not an independent wall, the grantee may, when the facts are such as to constitute a legal fraud on the part of the grantor, rescind the purchase and have the conveyance set aside and the purchase money repaid.
    Appeal by the defendant, Henry Feldman, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of' the clerk of the city and county of New York on the 8th day of February, 1893, upon a decision of the court rendered after a trial at the New York Special Term.

      John, Henry Hull, for the appellant.

      George F. La/ngbewi, for the respondents.
   Per Curiam :

The defendant by an agreement in writing contracted to sell to the plaintiffs a house and lot situated on the southerly side of Seventh street. The contract contained a covenant that “ the westerly wall of said house is an independent wall.” Subsequently a deed was delivered which did not contain a similar covenant, and there was not in fact an independent westerly wall. After the grantees bad been in possession of tbe premises for a short time they discovered the absence of the wall, and also the fact that the deed contained no covenant in respect to it. Thereupon they tendered to the grantor a reconveyance of the premises and demanded that the contract be rescinded and the purchase price of the premises refunded. This was denied and shortly thereafter plaintiffs instituted this suit, alleging in the complaint that they had been fraudulently induced to accept the conveyance and basing thereon a demand for judgment; that the deed be set aside and the grantor compelled to refund to them the money and securities which they had turned over to him.

The trial court found, upon evidence sufficient to support the findings:

“ That at tñe time of the delivery of said deed to the plaintiffs the plaintiffs relied upon and believed the statements and representations of said defendant mentioned and described in said contract, that the westerly wall of said house is an independent wall, to be true, and in consideration thereof ” paid the purchase price; “ that the said statements and representations of said defendant in said contract, that the westerly wall of said house is an independent wall, were and are false and untrue; ” that during the time the defendant was the owner of the premises he was informed by two of his tenants in said house that there was no westerly wall; * * * and that at the time the .contract was made, or the deed delivered, or at 'any other time, he did not inform the plaintiffs of these matters, and did not disclose any of the same, but suppressed them from the knowledge of the plaintiffs; ” “ that the said contract and deed was drawn and the execution and delivery of each of the same was attended to by a lawyer who was retained by and acted for both the plaintiffs and defendant, * * * yet he ” (the lawyer) drew said deed for the defendant and omitted therefrom the covenant that the westerly wall of the said house is an independent wall, or any mention of any walls or house, and allowed and permitted such deed to be delivered to plaintiffs, taking such deed himself on behalf of said plaintiffs and recording the same in the register’s office of the city and county of New York, and neither he or defendant informing the plaintiffs of such omission or suppression, or disclosing the same to said plaintiffs, and leaving them entirely ignorant of tbe same; * * * tbat the plaintiff, Emma Keller, wbo acted for the plaintiffs, could not speak, read or write the English language, and could not read said deed; the same was not read over to the plaintiffs and they were ignorant of its contents ; * * * that plaintiffs were entirely ignorant of the omission and suppression and concealment; that the westerly wall was an independent wall was not covenanted and contained.in said deed, or that in fact there was no westerly wall to said house.”

These facts, taken "in connection with the other findings made by the trial court, establish a legal fraud on the part of the defendant, and fully justify the judgment rendered setting aside the conveyance and directing a repayment of the purchase price.

The judgment should be affirmed, with costs.

Present — YaN BeuNt, P. J., Eollett and PabKee, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    Edward J. Bergin, Plaintiff, v. John J. Deering, Defendant. John Mulholland and Bartholomew Peck, Appellants; George N. Veritzan, Receiver, Respondent.

      Partnership property levied upon by judgment creditors — receivers rights to its possession.

    Two copartners having disagreed about the management of their partnership business instituted, by arrangement, an action to wind up the business through the aid of a receiver, pursuant to which a receiver was appointed; prior to the appointment certain creditors of the firm recovered judgments, under which executions were issued and levies were made by the sheriff.
    Upon motion of the receiver, although the validity of the judgments was not impeached, nor was any security offered for their ultimate payment, an order was obtained directing the sheriff to turn over to the receiver all property taken on the executions.

      Held, that there was rio reason for depriving the judgment creditors of their legal liens for the sole purpose, so' far as was disclosed, of permitting the receiver agreed on by the litigants to prosecute the business which they could not agree to manage themselves, and, hence, that the order directing the sheriff to turn over the property held by him under the executions to the receiver should be reversed.

      Appeal by John Mulholland and Bartholomew Peek, judgment creditors of the firm of Deering, Bergin & Go., from an order of the Supreme Court, made at the New York Special Term on April 11, 1893, and entered in the office of the clerk of the city and county of New York, directing the sheriff of the city and county of New York to turn over to George N. Veritzan, receiver in this action, the moneys and property of the firm of Deering, Bergin & Co. held by the sheriff under executions.

      Jamies Kearney, for the appellants.

      Nathamiel Levy, for the respondent.
   Per Curiam :

The litigants were partners, but in what business they were engaged, its extent, the amount of capital employed, pr their liabilities, are not shown. It does not appear that the firm or the individual members thereof are insolvent. Indeed, nothing is affirmatively shown, except that the parties were engaged in some kind of business as partners and disagreed about its management, but in what respect is not made known. However, they finally agreed that this action should be brought to wind up their affairs through the aid of a receiver, pursuant to which a receiver was appointed. Before the appointment was made, two creditors of the firm recovered judgments, upon which executions were issued and levied by the sheriff. Upon motion of the receiver, the sheriff was directed to turn over to the receiver all property taken on the executions. The validity of the judgments is in no wise impeached, nor was any security offered for their ultimate payment.

We are unable to see any reason for depriving those judgment creditors of their legal liens for the sole purpose, so far as is disclosed by the papers, of permitting this receiver agreed on by the litigants to prosecute the business which they could not agree to manage.

The order should be reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.

Present — • VaN BeuNt, P. J., Follett and Paeeee, JJ.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.


author: Per Curiam:

text:
    Edward J. Bergin, Plaintiff, v. John J. Deering, Appellant J. George N. Veritzan, Receiver, Respondent.

      Civil contempt of court — requisites of the order for punishment.

    An order adjudging'a party guilty of a civil contempt of court is fatally defective if it does not sliow what the party shall do, how much he shall pay, if anything, to purge himself from contempt, and does not adjudicate that the acts done or omitted impair the rights of a party to the action.
    Appeal by the defendant, John J. Deering^ from an order of the Supreme Court, made at the New York Special Term at Chambers on April 11, 1893, and entered in the office of the clerk of the,city and county of New York, granting the motion made by George N. Yeritzan, as receiver of the firm of Deering, Bergin & Co., to punish the defendant for contempt of court.
    The order appealed from was as follows:
    “A motion having been made by George N. Yeritzan, receiver of the firm of Deering, Bergin & Company, why John J. Deering and James Hanse should not be punished and fined for contempt of this Court
    “Now upon reading and filing the order to show cause dated March 20, 1893, the affidavit of George N. Yeritzan and Edward J. Bergin, both verified March 20, 1893, and the schedule marked ‘A’ annexed thereto and the affidavit of John J. Deering and James Hanse, both verified March 27, 1893, and the statements thereto annexed, and after hearing Nathaniel Levy, attorney for said receiver, in favor of said motion, and James Kearney of counsel for said Deering and said Hanse in opposition thereto, and due deliberation having been had, it is
    “ OedeRed that the motion to punish James Hanse for contempt of court be and the same hereby is denied without costs, and it is “Further ordered that the motion to punish John J. Deering for contempt of this court be granted with ten dollars costs, unless within five days after the entry and service of a copy of this order upon his attorney he pay over to the receiver or his attorney the sums of money collected by him since February 9,1893, and belonging to the firm of Deering, Bergin & Company, and it is
    “ Further ordered that should said John J. Deering fail to comply with the provisions of this order within, five days after the entry and service of a copy of this order upon his attorney, then the order for liis commitment shall be issued forthwith, and the sheriff is hereby directed to execute and enforce the same.”

      James Nearney, for the appellant.

      Nathaniel Levy, for the respondent.
   Per Curiam:

This is an appeal from an order adjudging the defendant guilty of a civil contempt of court. The order does not describe the acts which were committed or omitted by the defendant which constituted the contempt, nor is there any adjudication that any particular acts were done or omitted which amounted to a contempt. The order does not show what the defendant shall do, or how much he shall pay, if anything, in order to purge himself from contempt, nor is it adjudicated that the acts done or omitted impair the rights of any party to the action. These three provisions are necessary parts of every order adjudging a party guilty of a civil contempt.

The order should be reversed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., Follett and Parker, JJ.

Order reversed, with ten dollars costs and disbursements.


text:
    Frederick A. Card, Appellant, v. Mary M. Meincke and Another, Respondents.

      Judgment — dismissal of a complaint upon the merits.

      A direction in a decision by tbe court, after a trial by tbe court without a jury, that “ judgment be entered in favor of said defendant and against said plaintiff, witb costs,” does not authorize tbe entry of a judgment dismissing tbe complaint “ upon tbe merits,” and such unauthorized insertion of tbe words “upon tbe merits " will be stricken from tbe judgment, on motion.
    Appeal by the plaintiff, Frederick A. Card, from an order of the Supreme Court, made at the New York Special Term at Chambers and entered in the office of the clerk of the city and county of New York on the 20th day of May, 1893, denying the plaintiff’s motion to correct the judgment herein by striking out the words “ upon the merits.”
    The action was tried at Special Term, before the court without a jury. The trial justice made and filed findings of fact and conclusions of law, among which was the following direction for judgment : “ I direct that judgment be entered in favor of said defendants and against said plaintiff, with costs.”
    A judgment was thereupon entered by the clerk, upon motion of the defendants’' attorneys, dismissing the complaint “upon the merits,” with costs.

      L. Kcvrge, for the appellant.

      Hvn/fiohs do Rudolphs, for the respondents.
   Per Curiam:

In an action tried before the court without a jury, the clerk can only enter a judgment in the precise words and form directed by the court in the decision filed, or upon a subsequent direction to enter, by the judge who tried the cause, of the particular judgment that is proposed to be entered. In the case at bar, the decision filed contained no such explicit directions, and certainly did not state that any judgment should be entered dismissing the complaint in this action on the merits, whatever might have been the intention of the learned judge who tried the cause. We think, therefore, that the motion should have been granted, striking out from the judgment the words “ upon the merits.”

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

Present — Van Brunt, P. J., Follett and Parker, JJ.

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


author: Ber Curiam :

text:
    John H. Judge, as Testamentary Trustee, etc., of Garrit Furman, Deceased, Respondent, v. Francis B. O’Connor, Individually and as Executor, etc., of Emeline O’Connor, Deceased, Appellant.

      Testamenta/ry trust — mortgage by a benefieia/ry to the trustees — Statute of Limitations— the mortgage as peart of the trust estate.

    By the terms of a testamentary trust, one of the testator’s daughters became entitled to one-fourth of the income derived from the trust estate during her life, and at her death one-fourth of the principal was to go to her issue, if she left any, if not, it was to remain a part of the trust estate. The daughter executed a mortgage to the trustees upon, and to secure the purchase price of, real estate purchased by her. The interest on this mortgage was adjusted by offsetting it against the fourth part of the income of the trust estate payable to the daughter, and was, with her consent, indorsed on the bond as paid.
    An action having been brought by the testamentary trustee to foreclose this mortgage, the defenses of the Statute of Limitations and that the bond and mortgage had been set apart as a portion of the trust estate belonging to the daughter were interposed.

      Held, that the payments of interest in the manner above described prevented the Statute of Limitations from being a bar ;
    That as under the terms of the trust the testator’s daughter was not, in any event, to become entitled to a share of the principal, the trustees could not, by any act of theirs, even with the daughter’s consent, vest her with the legal or equitable title to any part of the trust estate;
    That moreover there was no evidence that the trustees ever attempted to set apart the bond and mortgage as part of her one-fourth interest in the estate ; and, hence, that the claim in reference thereto constituted no defense to the action.
    Appeal by tbe defendant, Francis B. O’Connor, individually and as executor, etc., of Emeline O’Connor, deceased, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe city and county of New York on tbe 9tb day of August, 1888, upon the report of a referee, in an action brought to foreclose a mortgage.

      Flamen B. Oandler, for tbe appellant.

      Edward C. Perkins, for tbe respondent.
   Ber Curiam :

June 6, 1848, Garrit Furman died, leaving a will and testament, which was probated July 6, 1848. By this will be appointed four. persons as executors and trustees, to whom letters testamentary were issued. By the eleventh subdivision of the will the testator devised and bequeathed the remainder of his estate to his executors and trustees, in trust, to pay out of the income arising therefrom $500 annually to his widow, and one-fourth of the remainder of the income to each of his four daughters, payable in half-yearly installments during each of their natural lives. It was further provided that in case a daughter should die the executors and trustees should pay over to the issue of the daughter so dying the one-fourth part of the trust fund; but in case any daughter should die without issue that the whole trust estate should be held for the benefit of the surviving daughters, and at their death should go to their issue. The remainder of the testator’s estate was set apart and held by the trustees as directed. The widow died January 14, 1861, when the four daughters became entitled to the whole of the income. Emeline, one of the daughters, was the wife of Francis B. O’Connor. On the 1st day of April, 1851, she purchased No. 25 Monroe street in this city, and for the purpose of securing the payment of $5,000 of the purchase price mortgaged the premises to the trustees under her father’s will as collateral to a bond executed by her husband to said trustees, by which he bound himself to pay said sum of $5,000 on the 1st day of April, 1860, with semi-annual interest at the rate of seven per cent. Thereafter, and until September 1, 1813, the interest was paid by offsetting it against the fourth part of the income from the trust estate payable to Emeline O’Connor. During these years the interest was adjusted in this way and was indorsed on the bond as paid, with the assent of herself and of her husband. In August, 1861, the survivor of said trustees held in his hands $31,350 belonging to the trust estate; but between that date and October 23, 1885, he wasted a large part of the estate, and on the date last mentioned he was removed, and the plaintiff in this action was appointed as testamentary trustee in his stead. At that timo the estate had been reduced to $9,500, secured by three mortgages, one of which was the mortgage in suit.

On the 6th of March, 1886, this action was begun against Francis B. and Emeline O’Connor, who interposed two defenses : (1) The Statute of Limitations; (2) that the bond and mortgage had been set apart as a portion of the trust estate belonging, to Emeline O’Con-nor. Tbe referee found as a fact, on tbe evidence of tbe two defendants, wbicb was not disputed, tbat the interest bad been paid by botb of tbem in tbe way heretofore described, up to September 1, 1873, wbicb was less than fourteen years before this action was begim.

It is plain tbat tbe Statute of Limitations has not applied as a bar to this action.

Under tbe trust, tbe validity of wbicb never has been, and is not now questioned, Emeline O’Connor was not to become entitled to one-fourtb of tbe principal, but was entitled only to one-fourtb of tbe income derived from tbe whole trust estate during life, and at her death one-fourtb of tbe principal was to go to her issue, if she left any, if not, it remained a part of tbe trust estate, as hereinafter stated.

Under such circumstances, tbe trustees could not by any act of theirs, even with tbe consent of Mrs. O’Connor, vest her with tbe legal or equitable title to any part of "the trust estate. Besides, there is no evidence in tbe record tbat they, or any of tbem, ever attempted to set apart tbe bond and mortgage as part of her onefourtb interest in said trust estate. Since tbe judgment was entered in this action, Mrs. O’Connor has died, leaving several children.

It is clear, we think, that these facts constitute no defense to this action, and tbat tbe plaintiff is entitled to collect this mortgage as part of tbe assets of tbe trust estate, for tbe purposes of administration, and for distribution of tbe principal among tbe issue of such of tbe daughters as have died, or shall die, leaving issue.

Tbe judgment should be affirmed, with costs.

Present — Yan Brunt, P. J., Eollett and Parker, JJ.

Judgment affirmed, with costs.


text:
    Jeannie Mitchell, Respondent, v. The Broadway and Seventh Avenue Railroad Company, Appellant.

      Personal injury from a street ea/t' — amount of the verdict.

    In an action brought to recover damages for a personal injury received by a woman about twenty-seven years of age, through being run over by the defend-ant’s horse street car, the plaintiff recovered a verdict for §15,000.
    The injury was a severe and permanent one; it did not appear that the trial was so conducted as to arouse prejudice or passion against the defendant, and the jury were instructed to return such a sum as would simply compensate the plaintiff for the injuries sustained.

      Meld, that the judgment should not be disturbed on the ground that the verdict was excessive.
    Appeal by tlie defendant, tbe Broadway and Seventh Avenue Railroad Company, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe city and county of New York on tbe 13th day of February, 1893, upon a verdict in favor of tbe plaintiff, rendered at tbe New York Circuit, and from an order denying tbe defendant’s motion for a new trial, made uoon tbe minutes.'
    Tbe action was brought to recover damages for a personal injury suffered by tbe plaintiff, and alleged to have been caused by tbe negligence of tbe defendant, a street railroad company operating horse cars. Tbe evidence showed that tbe plaintiff, who was a woman about twenty-seven years of age, when attempting to cross Broadway, in New York city, at a street corner, was thrown down by tbe horses attached to one of tbe defendant’s cars, and that tbe car. passed over one of her legs, causing a severe and permanent injury. Tbe jury rendered a verdict in favor of the plaintiff for $15,000.

      B. Hoot, for tbe appellant.
    /S'. O. Baldnnvn,. for tbe respondent.
   Per Curiam :

Tbe defendant concedes its liability for tbe injuries sustained by tbe plaintiff, and argues no exception but tbe one taken to tbe refusal of tbe trial court to set aside tbe verdict as excessive. Tbe evidence shows that tbe plaintiff was severely and permanently injured, has suffered great pain in the past, and that she will probably continue to suffer during life.

The testimony of the plaintiff and of her physicians as to the extent of her injuries and suffering, was not contradicted on the trial.

There is no evidence in the record which tends to show that the trial was conducted in a manner likely to arouse the sympathy, prejudices or passion of the jurors. The charge was temperate, and the jury was instructed to return such a sum as would simply compensate the plaintiff for the injuries sustained.

It appears that she necessarily expended about $1,000 in the employment of physicians and surgeons by reason of her injuries. While we regard the verdict as large, and should have been better satisfied had a less sum been awarded, we do not under the circumstances feel justified in setting it aside. Had the trial been so conducted as to arouse prejudice or passion against the defendant, we would be justified in ordering the damages to be reassessed, in case a reduction should not be assented to. But upon the whole record we think the power should not be exercised in this case, and that the judgment and order should be affirmed* with costs.

Present— O’Brien, Follett and Parker, JJ.

Judgment and order affirmed, with costs.


text:
    James Brand and Others, Respondents, v. John Crosby Brown and Others, Appellants, Impleaded with Others, Respondents. Samuel W. Milbank, Receiver, etc., Appellant.

      Attachment — vroperty belonging to others than the attachment debtor, or subject to prior liens — sheriffs fees.

    If a sheriff levies on or attaches the property of A. on a process against B., under the belief that the property belongs to the latter, he is not entitled to collect his fees and expenses ont of the property so wrongfully taken, but he must look for his compensation to those who employed him.
    If property of a debtor is attached or taken in execution on which there is a prior lien, the lien must first be satisfied, and no part of the sheriff’s fees can be deducted from the fund realized before payment of the lien ; if the remainder of the sum realized is insufficient to pay the sheriff he must look to the plaintiff in the writ under which he proceeds.
    A sheriff levied attachments upon a fund produced by the sale of goods to which parties other than the attachment debtor claimed the legal title, and upon which they claimed prior liens.

      Held, that such claims, if established, must be first satisfied before any part of the fund could be applied to the payment of the sheriff’s charges, and that he should not be permitted to withhold his fees from the fund before it had been determined that any part of it was subject to be taken by virtue of the writs held by him.
    Appeals by Samuel W. Milbank, receiver, and by the defendants, John Crosby Brown and others (composing the firm of Brown Brothers & Co.), from that part of an order of the Supreme Court, made at the New York Special Term at Chambers, and entered in the office of the clerk of the city and county of New York on the 22d day of May, 1893, which permitted the defendant John J. Gorman, as sheriff of the city and county of New York, to deduct and retain from the moneys heretofore collected or received by him under any warrants of attachment or executions heretofore issued to him against the property of the defendants Ernst Lipman and others, composing the firm of Lipman & Co., the amount of the said sheriff’s fees or poundage under said several attachments.

      Willard Posher Butler, for the appellants.

      W E. Stillings, for the respondents.
   Per Curiam :

The defendants, Ernst Lipman, Edward Friedlander, Herman Hilderslieim, and another person sued as John Doe, were partners under the name of Lipman & Co. and engaged in business at Dundee, Scotland. All of the members of the firm are subjects of Great Britain, none of them residing in this State. Ludwig A. Gutman, defendant, was. the agent of the firm in the city of New York.

On divers dates between April 1, 1892, and December 14, 1892, the firm shipped from Dundee a large number of bales of burlaps, consigned to themselves at New York. Some of the bills of lading under which the goods were shipped were assigned by Lipman & Co. to the plaintiffs as security for bills of exchange drawn by Lip-man & Co. on and accepted by plaintiffs. Bills of lading for other bales of burlaps so shipped were assigned to other banking firms and corporations as security for like acceptances. The New York agent of Lipman & Oo. was directed to turn over the avails of the various shipments so made to the bankers holding assignments of the bills of lading so assigned to them • as security for the sums loaned through their acceptances.

On December 14, 1892, Lipman & Co. became insolvent and suspended payment. Gutman, their New York agent, collected after that date various sums from purchasers of the bales so shipped and pledged, and deposited the amounts collected to the credit of Lip-man & Co. in the Western National Bank of this city. Immediately after the failure of Lipman & Co., nine banking firms and corporations began actions in this State, in which attachments were issued and delivered to the sheriff of the city and county of New York, who attached the money standing to the credit of the firm with said bank, and also certain other property. On or about February 24, 1893, this action was begun, all of the banking corporations, the partners of the banking firms, and the members of Lipman & Co., being made parties. The action was brought for the purpose of determining the rights of all the parties in the fund held by the bank, and, among other relief, a receiver was prayed for. April 6, 1893, Samuel W. Milbank was appointed receiver by an order containing the following provisiofi:

“ Ordered, that the‘Sheriff of the City and County of New York be and he is hereby directed to transfer to such Receiver, all property formerly belonging to said defendants composing the firm of Lipman & Co., levied upon or taken into his possession by virtue of attachments issued at the suit of any of the parties to this action, without prejudice, however, and subject to the liens of the respective attachments referred to in the complaint herein according to the dates of the levies thereof, respectively, and without prejudice to any and all rights of said Sheriff to fees or poundage by virtue of said several attachments.”

A copy 6f the order appointing the receiver was served on the sheriff, and a demand made that' he pay over all moneys taken by him under the attachments.

On May 22, 1893, an order was granted and entered which contained the following provision:

“ Ordered, that the defendant, John J. Gorman, as Sheriff of the City and County of New York, do forthwith pay over to Samuel W. kiilbank, the receiver heretofore appointed herein, any and all moneys heretofore collected or received by him under any warrants of attachment or executions heretofore issued to him against the property of the defendants, Ernst Lipman and others, composing the firm of Lipman & Company, after deducting the said sheriff’s fees or poundage under the said several attachments. 'Without prejudice to liens, if any, under the said attachments.”

The receiver and certain of the defendants appeal from that part of the order which permits the sheriff to retain the amount of his fees and poundage.

The title to these moneys is in dispute. Every one of these banking firms and corporations assert that a definite amount of the whole sum deposited in the Western National Bank arose from the sale of goods owned by it and to which Lipman & Co. had no title. If a sheriff levies on or attaches the property of A. on a process against B., under the belief that the property belongs to the latter, he is not entitled to collect his fees and expenses out of the property so wrongfully taken, but he must look for his compensation to those who employed him. Or, if property of a debtor is attached or taken in execution on which there is a proper lien, it must be first satisfied, and no part of the sheriff’s fees can be deducted from the fund realized before payment of the hen. If the remainder of the sum realized is insufficient to pay the sheriff, he must look to the plaintiffs in the writs under which he proceeds.

In the case at bar, if these various banking concerns hold the legal title to these goods or establish liens thereon, their claims must be first satisfied before any part of the same can be applied to the payment of charges of the sheriff ; and it was error to permit him to withhold his fees from the fund before it was determined that any part of it was subject to be taken by virtue of the writs held by him.

That part of the order which is appealed from must be reversed, with ten dollars costs and printing disbursements.

Present — Yak Brunt, P. J., Follett and Parker, JJ.

That part of the order which is appealed from reversed, with ten dollars costs and printing disbursements.


text:
    Ambia Boody, Plaintiff, v. The Lincoln National Bank of New York and William G. McIntyre, as Administrator, etc., of Azariah B. Harris, Deceased, Defendants.

      Bank account in the name of one as “agent” — right to the balance on deposit at the depositors death.

    Azariah B. Harris kept a bank account in the name of “ A. B. Harris, Agent,” to the credit of which he was in the habit of depositing his own personal moneys and against which he checked from time to time. Ambia Boody drew her check to the order of Harris for $49,000 and gave it to him with instructions to use the money in purchasing stock of a certain railroad for her. Harris indorsed the check and deposited it to the credit of the account of “A. B. Harris, Agent; ” purchased stock to the amount of $43,000 and paid for it out of the moneys on deposit in the name of “A. B. Harris, Agent; ” delivered the stock to Ambia Boody, and thereafter died insolvent, without having returned the balance of the $49,000 to Ambia Boody and leaving $4,440.50 on deposit to the credit of said account. Ambia Boody and the administrator of Harris each claimed from the baijk the sum so on deposit.

      Meld, that the money in question should be paid by the bank to Ambia Boody.
    Submission of a controversy without action, upon an agreed statement of facts under section 1279 of the Code of Civil Procedure. The facts agreed upon were as follows : On the 18th day of January, 1892, the defendant A. B. Harris, since deceased, had on deposit in the Lincoln National Bank of New York, defendant herein, a corporation duly organized and existing under and by virtue of the National Banking Act of the Hnited States, and resident in the city of New York, the sum of $2^967.01. Harris kept his bank account at the said bank in the name of “A. B. Harris, Agent,” and it was in this account that the said $2,967.01 was kept. '
    The bank book shows that Harris made deposits to the credrc of this account of “A. B. Harris, Agent,” of his own personal moneys and checked against it from time to time, and this $2,967.01 was the balance remaining on deposit to the credit of such account on said 18th day of January, 1892.
    On that day the plaintiff drew her check to the order of said Harris for $19,000, and gave the same to said Harris with instructions to use said money in the purchase for her of stock of the Yermont Yalley Bailroad Company. Said Harris accepted the money and agreed to carry out the plaintiff’s instructions. He indorsed the check and deposited the same on the 19th day of January, 1892, in said Lincoln National Bank to the credit of his account of “A. B. Harris, Agent.”
    On or about the 25th day of January, 1892, said Harris purchased 700 shares of the stock of the Yermont Yalley Eailroad Company, at sixty dollars per share, amounting to the sum of $42,000, and paid for the same out of the moneys on deposit in the name of A. B. Harris, agent, in said Lincoln National Bank, and delivered the said shares to the plaintiff.
    Said Harris never purchased any more shares of the said stock of the said railroad nor returned the balance of the money.
    The plaintiff was in no way indebted to the said Harris at the time she delivered to him said sum of $49,000, and the agreement between her and Harris was that the whole of said sum should be used by the said Harris in the purchase of stock of the said railroad company.
    On the twenty-first of January Harris deposited to the same account $100, and on the fifth of February a further sum of thirty dollars.
    In addition to the sum of $42,000, used in the purchase of said stock for plaintiff, said Harris drew out of said account for his personal use between the 19th day of January, 1892, and the 9th day of February, 1892, various sums amounting to $5,656.51, leaving on the 9th day of February, 1892, a balance of $4,440.50 in said bank to the credit of the account of the said A. B. Harris, agent.
    On the 9th'day of February, 1892, the said Harris died in the city of New York, and thereafter W. Gr. McIntyre, the defendant herein, was appointed administrator of his estate.
    Said sum of $4,440.50 is now in the possession of the said Lincoln National Bank of New York. The plaintiff has made demand upon said bank for the payment of said sum to her. The defendant McIntyre, as administrator .of the said Harris, has demanded payment of the said sum to him as such administrator.
    The defendant the Lincoln National Bank of New York makes no claim to said sum of money, and is prepared to pay over the same to whomsoever is entitled to receive it upon the order of this court.
    The liabilities of the estate of the said A. B. Harris, deceased, exceed his assets. The individual parties hereto are of full age.

      The question submitted, to the court upon this case is: Is said sum of $4,440.50 the property of the plaintiff, or is the administra* tor of the estate of the said Harris entitled to receive the same as part of the assets of the estate ?
    Plaintiff demands judgment directing that said sum of $4,440.50 in the possession of the Lincoln National Rank of New York be paid to her, and defendant William G. McIntyre, as administrator of A. B. Harris, deceased, demands judgment directing that the said sum of $4,440.50 be paid to him as such administrator.

      P. L. Kloeh, for the plaintiff.

      Edward Kent, for the defendants.
   Per Curiam :

The sum of $4,440.50 on deposit with the Lincoln National Bank to the credit of A. B. Harris, agent, must be paid to the plaintiff, Ambia Boody, with no costs to any party.

Present-— Yan Brunt, P. J., Follett and Parker, JJ.

The sum of $4,440.50 on deposit with the Lincoln National Bank to the credit of A. B. Harris, agent, must be paid to the plaintiff, Ambia Boody, with no costs to any party.


text:
    Caroline Amanda McCready, Respondent, v. The Farmers’ Loan and Trust Company, as Trustee and Guardian of the Estate of Francis Marion Whaley, and Francis Marion Whaley, Defendants. William Whaley, as Administrator, etc., Appellant.

      Parties — to an action brought by a trustee for an accounting.

    The representative of a deceased co-trustee is a proper party to an action, brought by a trustee who survives for an accounting by himself.
    Appeal by William Whaley, as administrator with the will annexed, etc., of Louisine W. Whaley, deceased, from an’ order of the Supreme Court made at the New York Special Term, and entered in' the office of the clerk of the city and county of New York on the lOtb day of March, 1893, denying the appellant’s motion to be made a party defendant to this action.

      Charles A. Jaehson, for the appellant.

      Charles Steele, for the respondent.
   Per Curiam :

October 3, 1887, Nathaniel L. McCready died, leaving a widow, the plaintiff in this action, and three children, one of whom was Louisine W. Whaley, the wife of William Whaley. McCready devised and bequeathed a certain portion of his property to trustees for the benefit of his daughter Louisine, the income arising from the use of which was to be paid to her during life, and the principal upon her death was to be paid to such of her lineal descendants as she might by her last will appoint, or in case of failure to appoint,. to her issue. On the 21st of June, 1888, all of the trustees, except the plaintiff in this action and Louisine W. Whaley, resigned and were discharged by an order of the court from the trusteeship, and thereafter the trust estate was held by the plaintiff and said Louisine for the benefit of the latter. They continued to act in this capacity until September 27, 1889, when the plaintiff resigned, and on the same day an order was entered discharging her from her position as such trustee, and thereupon the Farmers’ Loan and Trust Company was substituted as a trustee in the place and stead of this plaintiff. October 10, 1889, Louisine W. Whaley died, leaving an infant son, Francis Marion Whaley, who is a defendant in this action, and William Whaley, her husband. She left a last will and testament, by which she appointed her said son to receive the principal of the trust estate devised and bequeathed pursuant to the provisions of her father’s will. By her will she nominated her husband as the sole executor thereof. January 7, 1890, her will was probated, but letters testamentary were refused to Whaley, and thereafter such letters were issued to the Farmers’ Loan and Trust Company, which was also appointed the guardian of the estate of the infant.

April 18, 1891, this action was begun for an accounting by the plaintiff of her actions as trustee of the trust estate. In November, 1892, the Farmers’ Loan and Trust Company resigned its position as administrator of Mrs. Wbaley’s estate, and William Whaley was appointed administrator with the will annexed of the estate. In February, 1893, he moved for an order making him a party to this action for an accounting, which motion was denied.

We think that the representative of a deceased, co-trustee is a proper party to an action brought by a trustee for an accounting. Should any question arise whether there had been an improper administration ®f the estate by the trustees, it might be quite necessary to determine which of the trustees as between themselves was liable for the waste. In no other way could the representative of the co-trustee raise the question whether the trustee seeking for an accounting had misapplied any of the trust estate, or whether the devastavit, if any was committed, was the joint act of both trustees or the act of one. In such an action the liability of all the trustees should be determined. It oftentimes happens that a devastavit has been committed under circumstances which render but one of them liable, and should it appear in this action that the deceased co-trustee, Louisine Whaley, was liable fpr devastavit, a judgment should be rendered in accordance with the fact and the amount of her liability charged against any sum which her representative is entitled to receive from the time of the last payment of income to her until her death. In no other way can •& full and complete determination of the rights and liabilities of all the parties be had.

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

Present — Yan Brunt, P. J., Follett and Parker, JJ.

Order reversed, with ten dollars costs and printing disbursements, and the motion granted, with ten dollars costs


author: Per Curiam : Ingraham, J.:

text:
    The People of the State of New York ex rel. Louis L. Lorillard, Respondent, v. Edward P. Barker and Others, as Commissioners of Taxes, etc., Appellants.

      Personal tames — residence
    A person who resides in another State, where he is taxed upon his personal estate, is not to be deemed a resident within the State of New York so as to be subject to taxation upon personal property in the city of. New York, merely because he spends a few months of the winter in that city.
    Appeal by Edward P. Barker and others, composing the board of tax commissioners of the -city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 20th day of January, 1893, setting aside an assessment for the purposes of the personal taxation of the relator for the year 1891.
    The proceeding is by certiorari, to review the action of the board of tax commissioners in imposing a personal tax upon the relator for the year 1891.

      G. 8. Oolenum, for the appellants.

      J. M. Bowers, for the respondent.
   Per Curiam :

The order appealed from should be affirmed, with ten dollars costs and disbursements, upon the opinion of the court below.

Present — Yan Brunt, P. J., Eollett and Parker, JJ.

Order affirmed, with ten dollars costs and disbursements, upon the opinion of the court below.

The opinion of the court below is as follows :

Ingraham, J.:

To justify the respondents in imposing a tax, it must appear that on the Tuesday after the first Monday of January, in the year 1891, the relator was a resident of this State. If he was not such a resident at that time, the action of the respondents in taxing his personal property was unauthorized

The mere fact that the relator was m the city of New York at the time mentioned would not justify the respondents in their action, unless he was then a resident of the State.

It is the policy of the law to tax personal property at the place of the owner’s residence, and by chapter 392 of the Laws of 1883, it is provided that all debts and obligations for the payment of money due or owing to persons residing in this State, however secured or wherever secured, shall be deemed for the purposes of taxation personal estate within this State.

This provision, however, applies only to persons residing in this State, and by the Revised Statutes in relation to the taxation upon property it is provided that every person shall be assessed in the town or ward where he resides when the assessment is made for all personal estate owned by him.” (1 R. S. 389, § 5.)

The only provision for the taxation of personal property in this State owned by non-residents is that taxing property employed in business within this State, and the relator has no money invested in business in this State.

The simple question is whether this relator is a resident within this State within the meaning of the provisions of the statute before referred to.

The testimony taken in this proceeding I think clearly shows that the relator was not a resident of this State at the time this taxation was imposed. The relator is taxed upon his personal estate in Rhode Island and has been so taxed for six years. He votes in the city of Newport, State of Rhode Island, and he spends a part of the winter in New York, but that cannot be said to be his residence.

To hold this relator liable for taxation in New York would be to tax his personal estate both in New York and Rhode Island, which would be double taxation, and is opposed to the principle established in the case of The People ex rel. Darrow v. Coleman, (119 N. Y. 137).

I do not think the case of The People ex rel. Day v. The Tax Commissioners (42 N. Y. St. Repr. 449), applies, for the question there determined was not whether Mr. Day was a resident of this State or not, and it was not there decided that a person residing in the State of Rhode Island can be taxed upon personal property merely because he spends a few months of the winter in New York, and the appeal in that case was by the tax commissioners and not by the relator, and consequently the affirmance of that order does not require me to hold that the taxation of personal property belonging to a resident of Rhode Island can be imposed in this State.

I think, therefore, the action of the respondents must be reversed and the tax canceled, with costs.


author: Per Curiam: :

text:
    John B. Manning, Appellant, v. Isaac C. Ogden, Respondent, Impleaded with Others.

      Real estate and cJiattel mortgages — what are fixtures and movables — injunction.

    In an action brought to foreclose a real estate mortgage upon apartment houses, the plaintiff applied for a temporary injunction to restrain a mortgagee holding a chattel mortgage on the gas fixtures, ranges, carpets, hot water boilers, sinks, washtubs, radiators and curtain poles in the mortgaged houses from removing the same, on the ground that the articles included in the chattel mortgage were fixtures and not movables.

      Held, that the carpets and curtain poles, and the gas fixtures with their attachments were beyond question movables, and that their removal should not be restrained.
    That whether the ranges, hot water boilers, sinks and washtubs were fixtures or movables, as between the holder of the real estate mortgage and the holder of the chattel mortgage, depended upon when and how the articles were attached to the houses, and that their removal should be temporarily restrained in order that the question might be disposed of after the trial of the issue.
    Appeal by the plaintiff, John B. Manning, from an order of the Supreme Court, made at the New York Special Term at Chambers, and entered in the office of the clerk of the city and county of New York on the 8th day of May, 1893, denying the plaintiff’s motion for a temporary injunction restraining the defendant, Isaac C. Ogden, from selling or removing, or In any manner interfering with certain gas fixtures, ranges, etc.

      Babe c& Bellaf/r, for the appellant.

      Charles Be Hart Brower for the respondent.
   Per Curiam: :

August 2, 1892, Eliza Beaudet and Homer J. Beaudet executed a bond to the plaintiff whereby they bound themselves to pay $28,000, and as collateral thereto they executed on the same day a mortgage to the plaintiff on two apartment houses, which mortgage was duly recorded on the day of its date. Afterwards the mortgagor conveyed the premises subject to the mortgage to William D. Hotchkiss by a deed which was duly recorded November 2, 1892. On the 1st day of September, 1892, Hotchkiss conveyed the premises subject to said mortgage to James H. Marr by a deed dated that day, which was recorded November 2, 1892. January 23, 1893, James H. Marr, to secure payment of $1,830, executed to Isaac O. Ogden, defendant, a chattel mortgage on the gas fixtures, ranges, carpets, hot water boilers, sinks, washtubs, radiators and curtain poles contained in the apartment houses.

This action was begun April 1, 1893, for the collection of the $28,000 secured by the bond, and for the foreclosure of the collateral mortgage; the grantors and grantees in the conveyances mentioned, are parties to this action, except James H. Marr, who was made a defendant, but has since died. The question involved in this appeal is, whether the articles included in the chattel mortgage are fixtures or movables. Beyond question, the carpets and curtain poles are movables, and so are the gas fixtures, with their attachments. (McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38; Shaw v. Lenke, 1 Daly, 487.)

The rule declared in the cases cited, has not received the sanction of courts in some jurisdictions. (Fratt v. Whittier, 58 Cal. 120; Sewell v. Angerstein, 18 L. T. Rep. [N. S.] 300; Johnson v. Wiseman, 4 Metc. [Ky.] 357; Hays v. Doane, 3 Stockton, 84.)

Whether the ranges, hot water boilers, sinks and washtubs are fixtures or movables, as between the holder of the real estate mortgage and the chattel mortgagee, depends upon when and how the articles were attached to the houses. Often a particular article may be so attached to and used in connection with the realty, as to become a fixture, and pass with the realty as between vendor and vendee, or as between mortgagor and mortgagee, but in other cases they may be so used as not to pass with the realty. Each case must depend upon its own peculiar facts. We regard the question involved an important one, and it should not be determined upon affidavits, but left to be disposed of after the trial of the issue. Should the evidence justify the holding that these articles are a part of the realty, the damage to it by their removal would be great, and we think the Special Term erred in refusing to restrain, during the litigation, tbe removal of these articles, and that part of the order should be reversed, and a temporary injunction granted, restraining the defendant, Ogden, from removing from the premises the hot water boilers, sinks, washtubs and radiators, and, as modified, the order should be affirmed, without costs to either party.

Present — Yan Brunt, P. J., Follett and Parker, JJ.

Order modified, as directed in opinion, and, as modified, affirmed, without costs to either party.


text:
    John Thurfjell, Respondent, v. Frank S. Witherbee and Others, Appellants.

      Change of venue — the affidavits must allege that the pa/rty can, not that he expects to prove the facta by the witnesses.

    Affidavits to change the place of trial on the ground of the convenience of witnesses, which, instead of stating that the moving party can prove material facts by the persons named, state that the moving party expects to prove such facts by them, are insufficient, unless the affidavits disclose circumstances showing that the facts can probably be established by the persons designated.
    Appeal by the defendants, Frank S. Witherbee and others, from an order of the Supreme Court, made at the New York Special Term at Chambers, and entered in the office of the clerk of the city and county of New York on the 8th day of March, 1893, denying the defendants’ motion to remove this action from the Court of Common Pleas for the city and county of New York into the Supreme Court, and to change the place of trial from the city and county of New York to the county of jEsse:x-
    The action was brought to recover damages alleged to have been sustained by the plaintiff through personal injuries suffered in consequence of the alleged negligence of the defendants, in an iron mine owned and operated by them, situated at Minesville, in Essex county, New York, in which the plaintiff was employed by the defendants as a laborer.

      Henry H Whitman, for the appellants.

      J. Edward Swcmst/rom, for the respondent.
   Per Curiam :

This motion is founded and resisted on great expectations. Fifteen persons are named in the moving papers as necessary and material witnesses for the defendants on the trial of this action. Then follow statements of facts which defendants expect to prove by thirteen of the persons named, but there is no statement that defendants can prove any of the facts by any of the persons mentioned. The statement in respect to all of the. witnesses is: That your petitioners expect to prove the following facts by said witnesses, to wit: * * * By Gilbert Barnaby and Peter Carlson and each of them: That they were at work in said mine on the day in question, and saw said accident and how the same occurred; the size and character of the rock that fell, and the exact place in the roof from which it came; that at the time said plaintiff was injured, each of them were standing within a few feet of said plaintiff.”

It is not stated that these witnesses will testify to those facts, nor is it affirmatively stated that they were at work in the mine at the time of the accident. The statement is that the defendants expect to prove that they were. Had it been stated that these persons were at work in the mine and saw the accident, or that they were in a situation to have personal knowledge of the facts, or that they had stated to the affiant that they would testify to such facts, a better ground for the motion would have been disclosed. The same criticism is applicable to the statements made respectively as to the necessity of calling as witnesses the other persons named. Affidavits to change the place of trial, which state that the moving party can prove material facts by the persons named, are held to be sufficient, but affidavits stating that the moving party expects to prove such facts are insufficient, unless the affidavits disclose grounds showing that the facts can probably be established by the persons designated. This may be done by positive averments made by the party, or by affidavits of the proposed witnesses.

The plaintiff’s opposing affidavits are subject to the same criticism. He expects to prove divers relevant facts, by twenty persons who are named, but fails to state that he can prove such facts by any one of them. It would be almost impossible to convict an affiant of perjury upon such an affidavit, though false. It is important for the litigants and the witnesses that this action should be tried in tbe proper county, which presumptively is the county in which the cause of action arose. The statement that within a year from the time of the accident twenty persons, who are material witnesses, are residents of a county 300 miles from the scene of the accident, without an explanation as 'to how it happened, taxes the credulity of the court. The order should be modified by granting the defendants leave to make a new motion on fresh papers, on the payment of ten dollars costs of the motion, and ten dollars costs' and printing disbursements on this appeal, the costs to be paid and the motion made within thirty days after'’ the entry and service of the order on this decision.

Present — Tan Brunt, P. J., Bollett and Barrett, JJ.

Order modified by granting the defendants leave to make a new motion on fresh papers, on the payment of ten dollars costs of the motion, and ten dollars costs and printing disbursements on this appeal, the costs to be paid and the motion made within thirty days after the entry and service of the order on this decision.


text:
    Robert Rutter and Others, Respondents, v. The Germicide Company of New York, Appellant.

      Inspection of corporate boohs of account — when ordered.

    An order for the inspection of the defendant’s books of account is proper, in an action brought against a domestic corporation to obtain the specific performance of its contract to pay dividends on its preferred stock, and for an accounting, pending before a referee, where the treasurer of the defendant, having produced some of its books before the referee under a subpoena duces tecum issued by tihe plaintiffs, refuses to permit a bookkeeper designated by the plaintiffs, to examine the same, although repeatedly requested so to do by the referee, and by the plaintiffs’ attorney.
    Appeal by the defendant, the Germicide Company of New York, from an order of the Supreme Court, made at the New York Special Term at Chambers, upon the plaintiffs’ motion, and entered in the office of the clerk of the city and county of New York, on the 15th day of May, 1893, directing the defendant to produce its books of account, at its place of business, for the inspection of the plaintiffs, or their' accountant.

      The action was brought by the plaintiffs in behalf of themselves and the other holders of defendant’s preferred capital stock to obtain a specific performance of defendant’s contract to pay its preferred stockholders a six per cent annual dividend quarterly, and to secure such dividends by the deposit in the defendant company of fifteen per cent of its monthly earnings, and for an accounting.
    The answer interposed by defendant, which is a domestic corporation, admitted all the material allegations of the complaint, except the allegations that defendant’s net earnings had been sufficient to pay the passed dividends, and that its earnings had habitually been illegally diverted.
    Upon the joinder of issue the action was referred to a referee to hear and determine the same, and witnesses were examined before him at four hearings, some of defendant’s books of account being produced by its treasurer, in whose custody they were, under subpoena duces tecum.

    No bookkeeper designated by plaintiffs’ attorney was allowed by defendant’s treasurer or by its attorney to examine defendant’s books, although permission to make such examination was repeatedly requested, both by the referee and by the plaintiffs’ attorney, and finally the referee suggested to plaintiffs’ attorney that he should apply to the court for an order of inspection, and furnished his certificate for that purpose.

      L. J. Morrison, for the appellant.

      Vernon H. Brown for the respondent.
   Per Curiam:

In view of the conduct of the defendant in reference to the production of the books under the subpoena duces tecum, we think the granting of the order for examination was justified.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., Follett and Parker, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Mayham, P. J.:

text:
    The Wakefield Rattan Company, Respondent, v. Shepard Tappan, as Sheriff of Rensselaer County, Appellant.

      False representation — what must be shown to vitiate an executed contract for the sale of goods.

    In an action brought against a sheriff to recover the possession of certain chattels which had been levied upon by him under executions against the vendee of the plaintiff, where the suit is based upon the invalidity of the sale by the plaintiff, because of its having been induced by false representations on the part of the vendee, the judgment debtor, the plaintiff must, in order to sustain his action, establish five distinct propositions: First, the representations; second, their falsity; third, the scienter or guilty knowledge of the person making the representations; fourth, that the purchaser relied upon and was deceived by the representations; and fifth, that damages resulted to him in consequence thereof.
    To justify the court in setting aside a sale of a chattel, on the ground of fraudulent misrepresentation by the vendee, where the chattel has been actually delivered, the fraud must be clearly proved; and while fraud may be established by circumstantial evidence, it can only be proved by such circumstances as are irreconcilable with any other theory than that of the guilt of the person accused of the fraud.
    A statement made by a member of a firm purchasing goods, to the effect that “the company had had an unusually good holiday business, was prosperous and was doing a nice business and everything was looking promising and its financial condition was all right,” will not, in the absence of proof that the party making such representation believed or had reason to believe at the time he made it that it was false, or, without knowledge upon the subject, assumed or intended to convey the impression that he had actual knowledge of its truth when he had no such knowledge, and that the plaintiff relied upon such representation to his injury, sustain an action for fraud based thereon.
    It is error to allow the statement of a mercantile agency, based upon the representations of a bookkeeper of a firm in regard to its financial standing, to be received in evidence where there is no proof of the authority of the bookkeeper to make statements to the agency upon the subject, nor any evidence that the firm knew of such statements having been made at the time of ordering goods; and the acceptance of the goods by the firm, in the absence of such proof does not constitute a ratification of the statements of the bookkeeper.
    Appeal by' the defendant, Shepard Tappan, as sheriff of Rens-. selaer county, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 6th day of March, 1893, adjudging the plaintiff to be the owner of and entitled to certain property and the possession thereof, and awarding said property and the possession thereof to the plaintiff, together with costs, and also from an order denying a motion made upon the minutes of the co-urt by the defendant to set aside the verdict and for a new trial, entered in the office of the clerk of Rensselaer county on the 18th day of March, 1893, after a trial before the court and a jury at the Rensselaer County Circuit.
    The action was brought by the plaintiff, a corporation organized under the laws of Massachusetts, against the sheriff of Rensselaer county, to recover certain chattels which had been levied upon by the sheriff under judgments against the firm known as the Isaac Keith Company.

      James H. Rya/n, for the appellant.

      Frank 8. Blaek, for the respondent.
   Mayham, P. J.:

This action was prosecuted by the plaintiff against the defendant to recover the possession of fifty-four (51) baby carriages and twenty-two (22) brakes, of the value of six hundred and thirty-two dollars and thirty-five cents ($632.35).

The case showed that the property was seized by and held under an execution issued out of the Supreme Court in favor of the IvTational Bank of Troy against the Isaac Keith Company, and the theory of the action was that the Keith Company had no title to the property sought to be recovered by reason of an alleged fraud claimed to have been perpetrated upon the plaintiff by the Keith Company, in the purchase of such goods.

The case shows that the Keith Company was a firm doing ousiness in Troy, which succeeded to a business formerly carried on by Isaac Keith, and consisted of a copartnership composed of William M. Hyland and Phoebe Link, and at the time of the organization of this copartnership, one Frank Andros, who had been the bookkeeper of Isaac Keith, deceased, continued in that capacity in the employment of the Isaac Keith Company. Soon after the Isaac Keith Company commenced carrying on business, this bookkeeper was called upon by one W. C. Daboll, the manager of R. G. Dun Mercantile Agency at Troy, and requested to make a statement of the financial condition of the firm at that time. Pursuant to that request, Andros informed the mercantile agent what the inventory of the firm disclosed, giving in gross the value of the different articles of merchandise, the cash on hand, bills receivable, and the total of such assets; also purporting to give bills payable, and book accounts constituting the. liabilities of the firm, and showing net assets of thirty-nine thousand five hundred and twenty-seven dollars and four cents ($39,527.04).

This statement was forwarded to the Edward Russell Company Mercantile Agency in Boston. The mercantile agency also, in the same communication, gave what purported to be the financial standing and business character of the Isaac Keith Company, and the personal and financial character of the members of such firm. This statement was made on the 1st day of March, 1890.

The case also showed that on the 13th of September, 1890, one William A. Coffey, a reporter of the R. G. Dun Company, called on Andros, the bookkeeper of the firm, and received from him further statements in reference to the .standing and responsibility of the Isaac Keith Company, which Coffey reported to the Boston mercantile association as follows:

“September 13 th, 1890.
“ Mr. Frank Andros, manager, tells us to-day that there has been no change in their affairs since their statement last March. They seem to be doing their share of the business and believed to be holding their own. They are people who are well spoken of personally, pay their bills with average promptness, and are looked upon as being responsible for their engagements.”

The above statement and the said representations were submitted to Seaver, the cash and credit clerk and salesman of the plaintiff, about the 7th or 8th of February, 1891.

The case shows that the house of Isaac Keith had for sometime been in the habit of purchasing goods of the plaintiff. About the 1st of February, 1891, John Brockett, traveling salesman of the plaintiff, called at the store of the Isaac Keith Company, and had a talk with William M. Hyland, a member of the firm, in which the latter stated that they had had an unusually good holiday business, and that the business was prosperous, and the concern was doing a nice business, and everything was looking promising, and its financial condition was all right. Brockett, the agent of the plaintiff, made no examination or inquiries as to how much stock the firm had, and how much in accounts was due and owing to them.

The case discloses no other recommend or statement of the pecuniary standing or responsibility of the Isaac Keith Company, or of the individual members composing that company, prior to the time of making the order for the goods. At that time an order was given by the firm and accepted by Brockett in behalf of the plaintiff for fifty-four (54) baby carriages, with a request that they should be forwarded right along. The order of this class of goods by the Isaac Keith Company previous years was from fifty (50) to four hundred dollars ($400) a year. The order on this occasion was for about six hundred dollars ($600) worth of goods. The goods were delivered and received pursuant to the order and ]}laced in stock in the Isaac Keith Company’s store.

The testimony of Frank Andros shows that at the time of making the report to the R. G. Dun Mercantile Agency, the same was a correct statement and inventory of the assets of the Isaac Keith Company, according to his best judgment, deducting $10,000 as a liberal shrinkage on the book account for doubtful debts.

On the 20th of March, 1891, the Central National Bank of Troy recovered a judgment against the Isaac Keith Company for $6,170.93 upon a note of $6,000 given by that company on the 21st of October, 1890, for money loaned. On the 23d day of March, 1891, Elizabeth Hyland recovered a judgment against the Isaac Keith Company for $3,078.91, being upon a demand note of $3,000 given by that company for borrowed money.

These two judgments constituted the only judgments recovered against the Isaac Keith Company which appear from the evidence. On the 23d of March, 1891, Harriet S. Keith recovered a judgment against "William M. Hyland, one of the firm of the Isaac Keith Company, for $5,016.51. This judgment appears to have been recovered on five promissory notes of $1,000 each, made by William M. Hyland to Harriet L. Keith, dated February 3, 1890. On the 23d of March, 1891, judgment was entered in favor of Haywood Brothers against William M. Hyland and Phoebe Link individually, for $593.95. On the 23d of March, 1891, a judgment was entered in favor of Richard Cunningham and entered against Phoebe Link and William M. Hyland for $1,542.01. This judgment was upon a note made by Phoebe Link and indorsed by William M. Hyland, dated December 9, 1890. An execution had been issued on the individual judgments against Plarriet L. Keith and William M. Hyland, which was not, however, levied upon the property of the Isaac Keith Company, but was directed to be satisfied out of the personal property of said judgment debtors, or either of them, and did not contain a direction to levy against the property of the Isaac Keith Company.

The evidence shows that the defendant, as sheriff, received and held an execution on the judgment in favor of the Central National Bank, under which he seized and held the property of the Isaac Keith Company, and while so holding the same a mortgage against the Isaac Keith Company in favor of H. B. Olaflin & Co. for $4,000 and one for Peter McCarthy of $1,500 against the Isaac Keith Company, were also placed in his hands for collection.

It does not appear from the case that an execution on the Elizabeth Hyland judgment against the property of the Isaac Keith Company had been issued to the defendant at the time of the commencement of the plaintiff’s action to replevy the baby carriages.

The total liabilities as appears from the evidence, which were being enforced against the property of the Isaac Keith Company at 'the time plaintiff commenced this action, were for the $6,190.93 on the bank judgment, and $5,500 on the two chattel mortgages above referred, to, and the aggregate assets as appears from tlie evidence,, including the book of accounts of the Isaac Keith Company, amounted to $41,000.

- Assuming, therefore, that the representations made by the Isaac Keith Company’s bookkeeper could be held as representations made-by the company, and that the statement made by William HVL Hyland to the plaintiff’s sales agent, Brockett, could be treated as. representations of the Isaac Keith Company of their solvency and responsibility, it is difficult .to see how such representations-per se can be regarded as fraudulent as to the financial ability of the Isaac Keith Company. Confessedly upon this showing, the company was at that time solvent. It is true that it owed debts, but its apparent assets were far in excess of its liabilities. No actions had been commenced against it at the time of its purchase of these goods, and no judgments had been perfected against-it at that time. The two mortgages alone, which were capable- of" being summarily enforced, seem to constitute the only .liability against which the Isaac Keith Company could be compelled to provide at once.

The sale of these baby carriages from the plaintiff to the Isaac Keith Company seems to have been absolute and complete, and the title to these carriages vested in that company, unless at the time of the sale the company practiced such a fraud upon the plaintiff as to • render .the contract of the sale and the delivery under it void.

Before the plaintiff can recover the possession of the property sold under such circumstances, it must establish five distinct propositions tending to defeat the contract:

First. The representations.

Second. Their falsity.

Tlwrd. The scienter or guilty knowledge of the person making the representations.

Fourth. That the purchaser relied upon and was deceived by the representations.

Fifth. The damages resulting to him m consequence thereof.

In Arthur v. Griswold (55 N. Y. 410), Church, Ch. L, in discussing the question of fraudulent representations in the sale of' stocks, where the validity of the sale was challenged on the ground of fraud or of fraudulent representations by the vendor as to the solvency of tbe corporation, uses this language: “ Sucb an action cannot be sustained upon misplaced confidence induced by vague surmises. Tbe rules of law require a reasonable degree of certainty as to eacb requisite necessary to constitute the cause of action, viz., representation, falsity, scienter, deception and injury.”

And this language was reiterated by Andrews, J., in Brackett v. Griswold (112 N. Y. 467)

And tbe learned judge adds: “ There must bave been a f aise representation, known to be sucb, made by the defendant, calculated and intended to influence tbe plaintiff, and wbicb came to bis knowledge and in reliance upon wbicb be, in good faith, parted with property or incurred tbe obligation which occasioned tbe injury of which ' be complains. All these circumstances must be found to exist, and tbe absence of any one of them is fatal to a recovery.”

In Nichols v. Pinner & Michael (18 N. Y. 295), it was held that tbe mere omission of tbe purchaser of tbe goods to disclose bis insolvency to tbe vendor is not a fraud for which tbe sale may be avoided.

That was an action like this, to recover tbe possession of personal property sold by tbe plaintiff to tbe defendant upon the allegation that the defendant purchased tbe same fraudulently and with a design not to pay for them. Tbe comolaint was for a wrongful detention of tbe property.

Pratt, J\, in delivering the opinion of tbe court, said: To constitute a fraud in sucb cases there .must be an intention to cheat, at least there must be an intention to do an act, tbe necessary result of wbicb will be to' cheat and defraud another; but it is clear that sucb intention is not necessarily inferable from tbe fact that a man in good credit, going on with bis regular business, makes bis usual purchases for tbe purpose of continuing that business after be is made aware that bis property is not sufficient to pay bis debts, it is not fraudulent in him to make reasonable efforts to retrieve bis fortune and to extricate himself from bis embarrassment. It is not unnatural that be should cling to the hope that better times would come, that to-morrow should be as this day and much more abundant; and that with this hope, however delusive results may bave shown it to be, be should bave been impelled to buy more goods, contract new debts, and struggle on until some casualty should precipitate the catastrophe upon him, and. he find himself in hopeless bankruptcy. This is an every-day experience in the commercial world; and it would be hard indeed if the unfortunate victim of hopes that looked to him at the time as reasonable, must in his misfortunes, be judged by the actual, instead of the possible results. The authorities do not sustain any such doctrine, but the reverse.”

And the learned judge in this case in further discussing the question uses this language: “Fraud must be proved affirmatively. The presumption is always in favor of innocence, and not of guilt. The evidence should, therefore, be direct and strong, which would authorize the repudiation of a contract on the ground of fraud, especially in the case of an executed contract of sale, where the goods have been delivered and become mingled with the mass of the purchaser’s other property.”

The cases just cited proceed upon the theory that the purchaser knew or had reason to believe himself insolvent at the time of making the purchase. There is no evidence in this case that the Isaac Keith Company or the members of that firm had any reason to suppose that firm insolvent. The evidence, so far as it discloses the apparent condition of the firm, shows net assets above any liabilities which are disclosed by the evidence upon the inventory or estimate made by Andros to Daboll to amount to $39,524. These were firm assets and primarily liable for the firm 'debts, and which must be applied to the firm debts before any can be applied upon the individual debts of the individual members of the firm.

It is difficult upon this showing to see how the members of the firm could have known, or even suspected, that the firm was insolvent and unable to pay its liabilities at the time of purchasing these baby carriages. It was incumbent on the plaintiff, before it could repudiate the contract of sale, to show affirmatively facts and circumstances tending to prove that the representations made by the bookkeeper at the time he was inquired of by the mercantile agency, and the representation of William M. Hyland at the time of ordering the goods of plaintiff’s sales clerk, were, to the knowledge of the persons making such representation, false or fraudulent. The facts disclosed by the evidence would tend rather to prove them innocent than guilty of any such false representation. The evidence, therefore, capable of an innocent interpretation, cannot be used, to establish guilt. (Morris et al. v. Talcott, 96 N. Y. 100; Constant v. University of Rochester, 133 id. 640; Fenno v. Hannan,, 32 N. Y. St. Repr. 760.)

To sustain an action for fraud founded upon representations made by a purchaser, it must be made to appear that he believed, or had reason to believe at the time he made them, that they were false, or that without knowledge, he assumed or intended to convey the impression that he had actual knowledge of their truth when he had no such knowledge, and that the plaintiff relied upon them to his injury. (Wakeman v. Dalley, 51 N. Y. 27; Meyer v. Amidon, 45 id. 169; Oberlander v. Spiess, Id. 175.)

The setting aside of a sale of a chattel which has been delivered on the ground of fraudulent representation by the vendee, the fraud must be clearly proved; and while fraud may be established by circumstantial evidence, it can only be by proof of such circumstances as are irreconcilable with any other theory than that of the guilt of the person accused of the fraud. (Baird v. The Mayor, etc., of the City of New York, 96 N. Y. 567.)

Within this rule we think the jury were not authorized from xhe evidence in this case to find that the purchase of these goods by the Keith Company was procured by fraud. There is no direct evidence which we have been able to find which would uphold the finding of the jury, that Plyland at the time of ordering these goods, knew or had reason to believe that any representation or statement made by him as to the financial condition of the firm was untrue. As we have seen, the stock on hand and the amount of book accounts due the firm were far in excess of the liabilities of the firm, and those liabilities were a first charge upon the entire firm assets before any of the firm property could be applied upon the individual liabilities of the individual members of the firm, and there is nothing in the transaction, so far as the evidence discloses, from which the jury could properly infer that Hyland purchased these carriages with a fraudulent design of appropriating their value and not paying the plaintiff the price at which they were purchased; but if there was enough in this case to authorize the jury to find the representations made by Keith Company’s bookkeeper were exaggerations of the financial condition of Keith Comj>any, the evidence discloses no facts tending to establish the bookkeeper’s authority to make any such declaration or to bind the firm by it.

The case expressly shows that the representations made by the bookkeeper to the mercantile agency were not communicated to the Keith Company or either member of that firm, and that the bookkeeper had no express authority from the firm to make representations as to its financial standing which would bind the firm, and liis representations to the mercantile agency would not amount to such fraudulent representations by the firm as would authorize the plaintiff to treat the sale by them of these carriages to the Keith Company and the purchase of the same by said company as fraudulent and void.

The question of fraud must, therefore, turn upon the statement made by Hyland at the time of making the order. That statement was that “the company had had an unusually good holiday business, was prosperous and was doing a nice business, and everything Was looking promising, and its financial condition was all right.”

Under the circumstances of this case and within the authority, we do not think that that statement can be construed as fraudulent so as to vitiate the sale, and it was, therefore, error to allow the jury to speculate upon that statement in the,absence of any evidence showing that Hyland knew at the time of making the same that it was untrue.

We think it was also error to allow the statement of the mercantile agency, based upon the representations of the Keith Company’s bookkeeper, to be received in evidence. There was no evidence of authority in the bookkeeper to make statements to the mercantile agency of the Keith Company’s financial standing, nor was there any evidence that the Keith Company knew that their bookkeeper had made such statements at the time of ordering the goods, and the acceptance of the goods by the Keith Company in the absence of such knowledge was not a ratification of the statement of the bookkeeper. (Bigelow on Frauds, 363.)

In this case the plaintiff having asserted the authority of the bookkeeper to make this statement, assumed the burden of proving affirmatively the existence of such authority. This, we think, it failed to do, and for that reason the declarations of the bookkeeper were not competent to bind the principal, and then- reception, under the defendant’s objection, was error.

For these reasons, without discussing the other questions raised iby the appellant, we think this judgment should be reversed.

Putnam, J., concurred.

Judgment reversed, new trial granted, costs to abide event.