author: Br the Court.—Ingraham, J.

text:
    THEODORE V. BREMSEN, Respondent, v. ADOLPH ENGLER, Appellant.

      Public policy—contract to obtain pardon.

    An agreement with an attorney-at-law to do what can legally .be done to obtain from the governor a pardon or commutation of sentence of a person convicted of a crime, is not unlawful, and the attorney can recover for services rendered thereunder.
    It will be assumed that an employment of an attorney to do what he can to obtain a pardon, etc., contemplates only such legal and proper acts as . the law allows an attorney to agree to perform.
    Before O’Gorman and Ingraham, JJ.

      Decided April 9, 1883.

      Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury, and from an order denying a motion for new trial on the minutes.
    The facts are stated in the opinion.

      F. F. Marbury, and F. F. Marbury, Jr., for appellant.
    —An action cannot be maintained to recover for service rendering in procuring a pardon or a commutation of sentence (Norman v. Cole, 3 Esp. 253; Hatztield v. Gulden, 7 Watts, 152; cited with approval in Gray v. Hook, 4 N. Y. 456 ; McGill’s Admr. v. Burnett, 7 J. J. Marsh. [Ken.] 640; Wood v. McCann, 6 Dana [Ken.] 366). In the case of Bowman v. Coffroth (59 Penn. St. 23), the justice, delivering the opinion of the court, says “ a contract to procure a pardon from the governor would now be held illegal, whether improper means were used or not.” See also Lyon v. Mitchell (36 N. Y. 240).

      Theodore Bremsen and George H. Yeamans, for respondent.
    — Contracts for preparing and presenting petitions and other documents, collecting evidence, making a statement or exposition of facts, and preparing and making an oral or written argument, to be used before the legislature, or a committee thereof, are lawful (Sedgwick v. Stanton, 14 N. Y. 289; Russell v. Burton, 66 Barb. 539; Trist v. Child, 21 Wall. 441). Lobby services and personal influence are placed on a different and less favorable ground. (Marshal v. Baltimore, &c., 16 How. U. S. 153). A contract for a contingent fee for prosecuting a claim against the United States, pending in one of the executive departments, is not a violation of law or public policy (Stanton v. Embrey, 3 Otto, 548). A promise to pay for service and expenses in procuring a pardon for a convict in the state prison is not illegal or void (Chadwick v. Knox, 31 N. H. 226). An agreement to procure a pardon from the governor for a convict in the penitentiary, by the proper use of all legitimate means, is neither immoral or against the public policy (Tormby v. Pryor, 15 Ga. 258). The right to recover for such services was also affirmed in Bird v. Breedlove (24 Ga. 623); Bird v. Meadow (25 Id. 251).
   Br the Court.—Ingraham, J.

—This is an action to recover for services rendered by plaintiff, who is an attorney and counselor at law, in appearing before the governor of the state and preparing petitions and other papers for the purpose of obtaining a pardon for defendant’s brother, who had been convicted and sentenced to the penitentiary for two years and to pay a fine of five hundred dollars. The complaint alleges that plaintiff at defendant’s request and promise to pay therefor, rendered certain services to the defendant in endeavoring to and procuring a commutation of sentences of his brother, August Engler, and in procuring a pardon for said August Bugler; and in giving counsel and advice, preparing petition, papers and case, and in presenting the same before the governor, and doing and performing the various matters and things alleged in bill of items annexed to the complaint. The particulars mentioned in this bill of items, consist of various services, some of which are strictly legal services, such as preparing affidavits, petition for pardon ; preparing case and brief; review of the evidence on the trial; arguing the case before the governor ; numerous consultations with the defendant and the prisoner. The answer admits that plaintiff performed some of the services set up in the complaint and alleges payment, and then as a second defense alleges that plaintiff and William Fullerton entered into an agreement with defendant to perform the services mentioned for the sum of $300, and that such sum has been paid.

When the case came on for trial and immediately after the plaintiff’s counsel had opened the case to the jury,defendant’s counsel moved on the pleadings and on the opening of the case to dismiss the complaint, which motion was denied.

That motion was properly denied. The complaint set up a performance of service by plaintiff for the defendant and a promise to pay therefor, and that a portion of the services; alleged to have been rendered were ordinary attorney’s services to which there could have been no objection. The plaintiff then testifies that after the trial and sentence of the defendant’s brother,and after the affirmance of the conviction by the general term of the supreme court, and in t-he latter part of June, 1879, the defendant came to plaintiff and asked him if he (plaintiff) “did not think something could be done yetthat plaintiff said he did not see any chance, that every means was exhausted, and that he, plaintiff, had other business to attend to. Defendant there requested plaintiff to reconsider and think over it, and let him (defendant) know, and he would call again. On the second call defendant said to plaintiff, “I have paid so much money to the other lawyers and have got nothing for it, I will pay you well if you get him out and if you don’t succeed I will pay you for your trouble.” Plaintiff consented to go on, and under that employment plaintiff performed the services. The question to be determined is, whether this agreement was illegal and void as being a contract to procure a pardon or commutation of a sentence.

At the time the agreement was made, legal resources had been exhausted, the conviction had been affirmed, and nothing was left except an appeal to the executive clemency. This employment or agreement had therefore reference to procuring a pardon only.

It must be assumed that the parties had in mind when this consultation took place only such, legal and proper acts as the law allows an attorney to agree to perform. The employment is capable of that construction, and we cannot assume that the defendant intended to employ the plaintiff, or that plaintiff intended to agree to do any act in respect to obtaining the pardon, which was illegal unless it was expressly so stated.

The question, therefore, is, can an attorney recover for services rendered under an employment to do what could legally be done to obtain a pardon or commutation of sentence of a person convicted of crime ?

I think that a distinction should be made between an employment of this kind and a contract to procure a pardon made by a person who is not an attorney ; such a contract would be objectionable, because it would appear on its face that the means to be employed were influence or personal solicitation, or some others equally objectional, while in this case the employment is to perform services in the line of the employee’s profession, which for any other object would be unobjectionable.. The ground upon which this class of contracts is declared illegal is illustrated by the case of Gray v. Hook (4 N. Y. 457).

It there appeared that the plaintiff and defendant were candidates for an office which was to be filled by an appointment by the governor, as was supposed with about equal chances of obtaining the appointment. They made an agreement by whichT Hook was to withdraw and cast his influence for the appointment of Gray, and in consideration of which Gray agreed to pay Hook one-half of the emoluments of the office. The court held that the contract was void. The court says, “There is quite as much reason for applying the principle to contracts made for the purpose of influencing and perverting the most important and extensive operations of the legislature and executive power of the government. . . . No citizen can therefore legally stipulate to embarrass the operations of the government by diminishing its powers;” and approves the decision in the case of Hatfield ». Gulden (7 Watts, 152), which held void a contract to procure signatures to a petition to obtain a pardon from the governor for one convicted of a crime and sentenced to imprisonment.

But the employment in this case was very different. Defendant requested plaintiff, who was a lawyer, to do what he could, and promised to pay well if he was successful, and if not, to pay for the services rendered.

It certainly would not embarass the operations of the governor to. have a proper statement of the facts of the case prepared, affidavits prepared and vérified, and the circumstances properly presented to him to show that the prisoner was a proper subject for the executive clemency, and I can see no reason why such a contract should be void as against public policy.

These services plaintiff performed under the employment of defendant and his promise to pay, and for them he is entitled to recover (Sedgwick v. Stanton, 14 N. Y. 289). The argument of Judge Selden applies to ah application to the governor as well as to the legislature.

The charge of the judge who tried this case is not included in the case, and is not before the court, and the defendant did not, so far as appears, request the court to submit any questions to the jury. It must therefore be presumed that the jury were properly instructed as to the particular services for which the plaintiff was entitled to recover, and the jury having passed on that question and found in favor of the plaintiff, the verdict should not be disturbed.

I think that there was sufficient evidence from which the jury could find that the argument between plaintiff and Judge Fullerton and the defendant had been abandoned. That agreement was executed long before the employment on which the claim in suit was founded, and as it appears, prior to the argument and affirmance of the supreme court. It contemplated further legal proceedings, as well as an application for a pardon ; and the subsequent employment by the defendant of other counsel to carry on the legal proceedings, and employment of another person to procure the pardon after the legal proceedings had failed, together with the new employment of plaintiff and the new promise to pay for services to be rendered thereunder, would justify the jury in finding that such agreement had been abandoned and the new employment was substituted for it. And as before stated, it must be presumed that such questions were properly submitted to the jury, and they had found that it was so abandoned.

We have examined the exceptions taken by defendant and do not think any of them well taken.

The objection to the question asked defendant in regard to other agreements was asked on re-direct examination after defendant had testified as to what had happened at the time of the alleged employment, and it was in the discretion of the judge whether or not to allow the witness to answer again ; and as the plaintiff relied on the agreement that had been put in evidence, it was immaterial whether other agreements had been made or not.

The other exceptions do not require special notice, and as no error was committed at the trial, the judgment should be affirmed with costs.

O’Gorman, J., concurred.


source: Caselaw Access Project

author: By the Court.—Ingraham, J.

license: Public Domain

text:
    GEORGE R. MORRISON, et al., Respondents, v. WILLIAM R. LEWIS, as Receiver, Impleaded, &c., Appellant.

      Pleading-—false representations—replevin—allegations of ownership and of intent to deceive.

    In an action to recover the possession of personal property alleged to have been obtained upon credit by means of false representations, where the 'complaint shows that plaintiffs sold and delivered the goods to defendant, and that in consequence of the fraud therein duly alleged, they seek to avoid the contract of sale, the complaint will be held on demurrer to sufficiently allege a special property in the goods and a right to their possession, under § 1730, Code Civ. Pro.
    In such case, it seems, also, that the ownership of the property should be implied from the allegation of sale and delivery.
    It is sufficient in such an action that the allegation that 'the false representations were made with intent to deceive and defraud plaintiff, can be fairly gathered from all the averments of the complaint.
    Accordingly, where the false representations were alleged to have been made to a commercial agency with intent “to obtain credit" and to induce merchants and others to sell goods to them,” when defendants knew the statements were false and untrue, etc.,—Held, sufficient.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided April 9, 1883.
    Appeal by defendant from judgment entered on order of special term overruling demurrer to the complaint, and ordering judgment for ’plaintiff.

      The action was to recover the possession of certain goods obtained from plaintiff upon false representations, made to a commercial agency.

      John J. Adams, for appellant.

      Dewitt C. Brown, for respondents.
   By the Court.—Ingraham, J.

—The complaint alleges that the plaintiff, relying on certain representations made by defendants Hunt & Warren, sold'and delivered to said Hunt & Warren as copartners, certain goods and merchandise particularly described, which were of the value of $246.96 ; that said representations - were false ; that subsequently said Hunt & Warren made a general assignment for the benefit of creditors ; that the assignee was removed by an order of the superior court and the defendant Lewis was appointed receiver df the property assigned by said assignment; that Lewis had qualified as such receiver and took possession of the property so assigned, and was in possession of the property described in the complaint. The complaint demands judgment for the 'possession of said goods and chattels and damages for their detention.

Defendant Lewis demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action against him.

The special term ordered judgment for the plaintiff on the demurrer, and judgment was entered in favor of the plaintiff and against the defendant Lewis for the possession of the property therein described with costs. From that judgment defendant Lewis appeals.

The first defect in the complaint on which plaintiff relies to sustain the demurrer is, that there is no allegation in the complaint that the specific property sought to be recovered is or was the property of the plaintiff, or that plaintiff was the owner thereof, the only allegation being that plaintiff sold and delivered to defendants goods, etc., and the question to be determined is whether this is a sufficient allegation of plaintiff’s ownership of the property.

The Code of Civil Proceedure (§ 1720) provides how in. an action for claim and delivery of personal property title shall be stated in the pleadings, and it is there stated that an “allegation to the effect-that the party pleading or a third person, was at the time when the action was commenced or the chattel was replevied, as the case may be, the owner of the chattel, or that it was then his property, is a sufficient statement of title, unless the right of action . . . rests upon the right of possession by virtue of a special property, in which case, the pleading must set forth the facts upon which the special property depends, so as to show, etc., that the party pleading was entitled to the possession of the chattels.”

I think the pleader has in this case complied with the provisions of this section. He alleges that plaintiff sold and delivered the goods to defendants, and in consequence of fraud asks to avoid the contract of sale and be placed in the same position that he was before the property was obtained from him by the fraud. The demurrer admits that plaintiff sold and delivered the goods ; that the sale was induced by fraud ; and that the goods are in possession of defendant Lewis. This is sufficient to show that the plaintiff has a special property in the property described, and is sufficient to enable him to maintain this action. The delivery of the property was part of a contract that was fraudulent. Plaintiff asks to have that contract rescinded and is entitled to have it rescinded. In order to completely rescind it, it is necessary to redeliver the property to the plaintiff.

The cases cited by appellant do not conflict with this view. In Pattison v. Adams (7 Hill, 126), the complaint alleged that plaintiffs were entitled to the possession' of the ’ property. It was “held that this was not sufficient, as in pleading his right the fact must be alleged and not the conclusion.” In Scofield v. Whitlegge (49 N. Y. 259), the complaint alleged “ that defendant had become possessed of and wrongfully detained from plaintiff.” It was “held that the allegation that the property was wrongfully detained was a conclusion to be drawn from the fact of the ownership or right to possession, and that the fact must be alleged in the complaint, and not the conclusion. In this case it is the fact of the sale and delivery that is alleged, and that having been induced by fraud gives plaintiff a right to have it rescinded.

I think also that ownership of the property should be implied from fhe'allegations of sale and delivery. Possession of personal property alone and without explanation is evidence of ownership (Rawley v. Brown, 71 N. Y. 85).

In an action to recover the value of property sold and delivered no allegation of ownership is necessary. The fact of the sale and delivery of the goods implies that the goods belong to the seller (Phillips v. Bartlett, 9 Bosw. 678). There is no reason why the same implication should not apply in this case.

The second ground on which it is claimed that the demurrer should be sustained is that complaint does not allege that the statement was made with intent to defraud. The complaint alleges that the representations were made for the purposing of securing credit to defendants Hunt & Warren, and to induce merchants to extend credit and sell goods to them, and that such representations were false, and were known to defendants to be false at the time they were made and when the goods were sold.

In the case of Zabriskie v. Smith (13 N. Y. 322) the court says, “it is sufficient, however, that the requisite allegations (viz.; that the false representations wTere made with an intention to deceive and defraud plaintiff) can be fairly gathered from all the averments in the complaint.”

The averments in this complaint come within this rule and make out the allegation of bad faith and intent to defraud. The representations are alleged to have been made with intent to obtain credit and to induce merchants and others to sell goods to them, when they knew the statements were false and untrue. There could be but one motive, and that would be to defraud the persons trusting them on the faith of such representations.

The judgment appealed from should be affirmed, with costs.

Sedgwick, Ch. J., and O’Gorman, J., concurred.


author: By the Court.—O’Gorman, J. Sedgwick, Ch. J.—[Concurring.]

text:
    MARGARETHA WEINHOLD, Respondent, v. DAVID D. ACKER, et al., Appellants.

      Negligence—use of door under hatchway in store Try customer.

    Where it appeared that plaintiff and other customers of defendants had been in the habit, with defendants’ permission, of using a certain door in their place of business for exit and . entrance, which door was obviously intended for the transfer of freight, etc., and not for the use of customers, —in an action by plaintiff to recover damages for injuries caused by the falling of a hogshead through a hatchway above said door while plaintiff was entering the store, defendants are not entitled to have the jury charged that plaintiff, in entering by said door, took all risk of so doing. By giving such permission, defendants assumed a duty to plaintiff of protecting her from negligence.
    The question whether permission was given by defendants'so to use said door, is presented to the jury by evidence that prior to the happening of the accident, it had been used by plaintiff and others for exit and entrance.
    Where, in such case, the evidence shows that immediately before entering said door, plaintiff was met by one of defendants’ employees, who told her in a loud voice and with an excited manner and pushing her slightly, not to enter, defendants are not entitled to a charge that, “if the jury believe that plaintiff was directed by an- employee of defendants not to enter said door, and through heedlessness or inattention she did not hear what was said to her, or hearing it disregarded the warning, the defendants are not liable.” First, because the request implies that it was enough if said person were an employee, though plaintiff were ignorant of the fact; and second, because plaintiff, in either event, is not, under the circumstances, chargeable as matter of law with want of due care.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided April 9, 1883.
    Appeal from a judgment rendered in favor of plaintiff for $600 damages and costs, and from an order denying defendants’ motion for a new trial on the minutes.
    The facts appear in the opinions.

      Stephen A. Walker, for appellant.

      Henry Bischoff, Jr., for respondent.
   By the Court.—O’Gorman, J.

—This is an action to recover damages from an injury to plaintiff by reason of alleged negligence of the defendants, on December 22, 1880. The plaintiff, a customer of the defendants, in the act of entering their store in Chambers street, by a side door in College place, was struck by a large hogshead which fell through an open hatchway from an upper floor. Much testimony was taken at the trial both as to negligence on the part of the defendants, and contributory negligence on the part of the plaintiff, and it was submitted fully and fairly to the jury by the trial judge.

The requests to charge made by the defendants’ counsel were either unnecessary, the judge having in effect charged in his own language as requested, or were not sustained by the evidence. No error has been committed.

The judgment should be affirmed, with costs, and the order appealed from affirmed, with $10 costs.

Sedgwick, Ch. J.—[Concurring.]

—I agree that the judgment should be affirmed.

The request of defendants’ counsel which the court refused to charge, viz., that if the plaintiff entered the store through an entrance apparently not designed for the use of customers of the store, but obviously intended for the shipment and transfer of freight in the carrying on of defendants’ business, the plaintiff assumed the risk of so doing and cannot recover, were not absolutely correct, under the circumstances of the case as the jury were at liberty to find them. For, if plaintiff and other customers of the store, had been in the habit of using the door referred to, for exit and entrance, with the permission of the owner, then the mere appearance of the door, being for the shipping of freight and not for customers, would not be tantamount to a direction of the owner to the plaintiff not to enter. The actual, although implied, permission to usé, as a customer, would be a modification of such á supposed direction, and would entitle the plaintiff, if she entered, to protection against negligence. The testimony of the plaintiff that she and other customers of the store had before gone in at the door, presented a question for the jury; as to whether such use had not been with the permission of the owner.

The court also refused to charge as requested for defendant, “that if the jury believe that plaintiff was directed by an employee of the defendants not to enter the door, and through heedlessness or inattention, she did not hear what was said to her, or hearing it, disregarded the warning, the defendants are not liable.” The testimony shows that the direction or warning referred to was given, if at all, as follows: Hamlin, a servant of defendants, was about to go in the door, when he was told of and then saw, the danger from the cask that was jammed in the .hatchway. He stepped out and shut the door. He saw the plaintiff approaching the door. He said : “ Look out, get back, don’t go in there,” and “ I pushed her this way slightly and she jumped right away from me, acted wild and scared; and she went in spite of me, and the next moment I looked around and saw the cask on the floor and the lady on the floor. I used a pretty loud tone of voice. I was excited a little, thinking that I might have got hurt.”

I do not think that as matter of law heedlessness, taking the meaning of that word as it could only be applied to the facts of the case, or inattention or disregard, would show negligence on the part of the plaintiff. Why, as matter of law, should ordinary prudence call upon her, to obey a direction or warning, as such, of a person, not known by her to be an employee, or who at least, in the course of due care on her part, would have appeared to be an employee ? As matter of law, it is not a want of due care, to heed or attend to or disregard, the direction or warning of an excited man in the street, whose appearance and situation do not necessarily imply that he was an employee. The request implies that it was enough if Hamlin were an employee, without the plaintiff knowing or having reason to believe that he was. Again, if the plaintiff knew that Hamlin was an employee and did hear what he said, it was not absolutely her obligation to believe that it was dangerous for her to enter. The tones in which he spake, his own excitement, his pushing her slightly, affected her mind, as she heard and was giving attention to what he meant by his words. Taken altogether, it was a question for the jury of whether, if she had given ordinary care in hearing or heeding him, she would have known that he meant to tell her it was dangerous to enter the door. If circumstances that she did not control affected her mind, so that she did. not understand what persons ordinarily would understand, the jury might consider the fact as to the main question of whether she used due care.


author: By the Court.—Sedgwick, Ch. J. Ingraham, J.—[Concurring.] O’Gorman, J.—[Dissenting].

text:
    ELIZABETH J. HARNETT, Appellant, v. THE BLEECKER ST. & FULTON FERRY R. R. Co., Respondent.

      Contributory negligence—nonsuit on ground of.

    Assuniing the rule to be that the cases when a nonsuit will be sustained on the ground of contributory negligence are exceptional, and are confined to those where the undisputed facts show the omission or commission of some act, which the law adjudges negligence,—a case will be held within said exception, and a nonsuit proper, where it so appears that plaintiff was knocked down and injured by a street car while attempting to cross a street; that before starting she saw a car pass, but did not look to see if another were approaching; and that the street was clear of obstructions teller vision, so that had she looked, she would before starting have seen the ear by which she was injured approaching.
    Though it be taken as the rule that, on a motion for nonsuit, the most favorable view of the facts possible should be taken in behalf of plaintiff, yet in ascertaining what the facts are, if a fact is stated in a way most favorable to plaintiff by herself as a witness, and she afterward qualifies or contradicts the former testimony, she neutralizes in whole or in part that testimony, so that it cannot be considered as establishing the fact. Per Sedgwick, Oh. J.
    Ingraham, J., agreed that the nonsuit in this case should be sustained, holding that absence of contributory negligence is part of plaintiff’s case, and that there is here no evidence upon which a finding that plaintiff was not guilty of contributory negligence, could be upheld.

      O’G-ormax, X, reviewing exhaustively the facts and law, writes for reversal and new trial.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided May 7, 1883.
    Appeal by plaintiff, from judgment of nonsuit at trial term.
    The action was for damages, alleged to have occurred from the negligence’of defendant’s servants.
    The facts and exceptions appear in the opinions.

      Thomas P. Wickes, for appellant.

      Robinson & Scribner and Osborne E. Bright, for respondent.
   By the Court.—Sedgwick, Ch. J.

—If the rule, stated in Stackus n. New York C. & H. R. Co. (76 N. Y. 464), be applied in this case, still the action of the court- below, in nonsuiting the plaintiff, should be sustained. That rule was that to justify nonsuiting “the negligence must appear so clearly that no construction of the evidence or inference drawn from the facts, would have warranted a contrary conclusion, and that a verdict of ' the jury the other way, would have been set aside as against evidence.” The court further said: “The cases where a nonsuit has been sustained on the ground of contributory negligence are exceptional, and are confined to cases where the undisputed facts show the omission or commission of some act which the law adjudges negligent.

In Barker v. Savage (45 N. Y. 191), the plaintiff was a woman over sixty-four years of age, and lame, walking with a crutch. In crossing a street in the city of New York, she was knocked down and hurtby a cart, that was driving by. The court decided, that it would be negligence to cross a street without looking in both directions along the street to ascertain whether an31 vehicles are approaching, and if-so, their rate of speed, and how far from the crossing. The court is of opinion that/the plaintiff should have been non-suited, because there was | no evidence 'that the plaintiff looked at all in either direction for approaching vehicles, and the evidence tended to show that she entered upon the crossing and walked along upon it, without taking any precaution for this purpose. It appeared that had she looked she could have seen the horse and cart in time to have avoided the danger, and that for some unexplained reason she failed to hear a cry that the driver made to notify her of her danger, although it was heard by persons at a greater distance than she, which would have been heard by her in time to avoid the danger if reasonably attentive to the situation of affairs.

In the present case, the plaintiff was standing on a street corner, about to cross the street. She saw a street railroad car pass. Without looking to see if another car was approaching, she began to cross. The car which knocked her down was in fact then approaching. The street was clear of obstructions to her seeing it. She first saw it, when it was within eight and a half feet of her. She then put up her hand, as if to warn the driver of the car. She testified “I put my hand up and was just crossing the track on which the car ran.” This was given upon cross-examination, and the counsel asked the question, “ When you first discovered the car you were in the middle of the track on which the car was running?” The answer was, “Yes, sir; I can make my solemn declaration that the car ran over me and the horses threw me.” The question was then repeated, “ And when you first discovered the car it was at the distance from you that you have described, and you were in the center of the track on which it was running ? ” The answer was, “I was outside of the track, not immediately standing on the track, a short distance outside, may be half afoot.” She was then in safety, for the car was eight feet distant and she could have moved backward. She however, lifted up her hand and proceeded. Intermixed with the evidence that has been given, she made statements that tended’ to make her testimony inconsistent. If these statements are considered, the result would be that her testimony as a whole was not to be relied on for any purpose. For instance, she said that when she first saw the car, she was outside the track toward Chatham street. If this were the fact, she had only to proceed in the direction she was already pursuing, and she could not have been knocked down. If, indeed, she were in the middle of the track when the car was eight feet away, her testimony in answer to the question, “Did you move or stand still V' is “ I should stand.” I think this meant that it was absurd to suppose that she would stand still and not move and attempt to proceed. The question would still remain whether she was not in that dangerous situation by her previous negligence.

On the whole, it appeared, if her evidence is to be stricken from the case, that an exercise of due and ordinary care on her part would have disclosed that the car was approaching and that it" was dangerous for her to cross before it. The presumption is that she did hot intentionally incur the danger, but rather that she did not use the care that by law she was bound to use. If her evidence is to be used, the inference from it is the same as to the want of care, but it further discloses acts of positive rashness on her part. It was argued by the learned counsel for the appellant, who has filed an exhaustive and accurate brief, that on a motion for nonsuit, the most favorable view of the facts possible, should be taken in behalf of the plaintiff. That may be true, after the facts have appeared as such in the testimony. But in ascertaining what the facts are, if a fact is stated in a way most favorable to a plaintiff, by herself on the stand as a witness, and she afterward qualifies or contradicts the former testimony, she neutralizes in whole or in part, that testimony, so it cannot be considered as establishing the fact.

For the reason stated, I am of opinion that the judgment should be affirmed with costs.

Ingraham, J.—[Concurring.]

—I agree with the Chief Judge that the judgment should be affirmed. I do not think that there was any evidence upon which a finding of the jury that plaintiff was not guilty of contributory negligence could be upheld. The, absence of contributory negligence is part of the plaintiff’s case, and as plaintiff failed to establish that, she was properly nonsuited.

O’Gorman, J.—[Dissenting].

—The action was brought to recover damages for injuries claimed to have been inflicted on the plaintiff by reason of the negligence of the defendants. At the close of the plaintiff’s case, a motion was made by the defendants’ counsel for dismissal of the complaint, and the motion was granted on the ground of contributory negligence on the part of the plaintiff.

The question now to be discussed, is whether, on the evidence, the learned trial judge was bound to decide as a matter of law that the plaintiff had been guilty of negligence which contributed to the accident and was the proximate cause thereof, or whether he would have been justified in submitting the question as matter of fact to the jury for their determination. In considering this subject, an appellate court is bound to give to the testimony the interpretation and effect most favorable to the plaintiff, to concede to the plaintiff all presumptions and inferences most favorable to the plaintiff, to reconcile contradictions if they can be reconciled, or to select from the conflict of testimony such evidence as may be most favorable to the plaintiff, and to give the plaintiff the benefit of every reasonable doubt. The true test perhaps of the propriety of a nonsuit is this: If a jury, regarding the testimony in the light most favorable, had found a verdict for the plaintiff, would an appellate court have been bound to set aside that verdict as against evidence (Stackus v. New York C. & H. R. R. Co., 79 N. Y. 464).

Treating the testimony in this case in the manner above prescribed, the following facts appear: On the morning of September 26, 1876, the plaintiff, a woman sixty-two years of age, was crossing Centre street at its intersection with Chambers street in this city. She had been at a savings bank situated in Chambers street, between, Broadway and Centre street, and on leaving the bank walked along the north side of Chambers street toward the east. When she arrived at the northwest corner of Chambers and Centre street, she stopped to allow a car going south, or down town, to pass by. A second car, also going south, was following the first car at a short interval. The plaintiff started to cross as soon as the first car had passed her, and she had arrived within about one foot from the sidewalk on the east side of Chambers 'street, when she was struck by the horse of one of defendant’s cars going north, knocked down, and her leg was broken. Two by-standers were witnesses of the accident, and from their testimony it can be gathered that the day was a clear, bright day; that when plaintiff started to cross Centre street, the street appeared to be clear ; that the defendants’ car came down toward Chambers street going north at a rapid pace—very fast—the horses on a run; that there is a down grade on Centre street, opposite Chambers street; that cárs usually go fast there; that this car went faster than cars usually go down that hill, and at the spot where plaintiff was struck ; that the driver just before the accident, held the reins loose in his left hand and did not apply the brake until the horses had struck the plaintiff, and she had been knocked down and was lying on the ground. The track on which defendants’ car ran, was the most easterly track,—the nearest to the east sidewalk of Centre street, and was only four or five inches from the curbstone. She was struck by the near horse on the west and left side of the car. He struck her just back of "the collar, and knocked her down. She was then struck by the left wheel of the car, and pushed along about four feet. She was a little north of the north cross-walk when she was struck. She lay, when picked up, near the hind legs of the horse, with the dashboard of the car about up to her, and across the track, with her head towards the north-west. The driver was arrested immediately after the accident, and in answer to a question . from the police officer, he said: “ the horses knocked down an old woman—she must be drunk.” There was no evidence that she was drunk, or at all under the influence of liquor. The car when first seen was, according to a diagram in evidence, about one hundred and twenty-five feet from the spot where plaintiff was knocked down.

The learned counsel for the defendants states in Iris printed argument on this appeal that, “ a car going only six miles an hour, will travel eight and eight hundred-thousandth feet per second.” This is only the ordinary jog which street cars usually travel, and going very fast down hill at a steep down grade, it may be assumed the rate of speed was at least ten or twelve miles an hour, which would carry the car one hundred and twenty-fiye feet in less than seven seconds. If this computation be correct, it gives a fair idea of the speed at which the car was going, immediately before the plaintiff was struck.

The testimony of the plaintiff herself throws no light whatever on the question of the negligence of the defendants. She was manifestly an uneducated, unobservant woman, so terrified and dazed by the suddenness of the accident, as to be able to remember but little about it. All that she knows, is that ‘£ she was run down by the car and mashed.” As she herself testified, she was “vulgar, and did not know the use of words ; she could not give a very good account of herself.”

Upon this evidence, if there had been no other question but that of the negligence of the defendants, the case should surely have been sent to the jury for their determination. But the learned trial judge held, that there was evidence of negligence on the part of the plaintiff which contributed to the accident, and which as matter of law disentitled her to relief. This is the next question to be considered.

The law on that subject, as it may be gathered from the decisions of the court of appeals of this state, seems to be, that the plaintiff in an action of this kind, cannot recover damages from the defendant, if by his own fault, or absence of such ordinary care as a prudent man would take of • himself under the circumstances, his own negligence was the proximate cause of the accident (Massoth v. Del. & H. Canal Co., 64 N. Y. 524).

To justify a nonsuit on the ground of concurring negligence, the negligence must appear so clearly, that no construction' of the evidence or inference drawn from the facts, would have warranted a contrary conclusion, and that a verdict the other way, would have been set aside as against evidence (Kain v. Smith, 89 N. Y. 375). In what respect was the plaintiff here in fault ? In what did her negligence, if any, consist ?

A case decided by the court of appeals, which in some of its features bears a resemblance to the case at bar, is Barker v. Savage (45 N. Y. 191). There the plaintiff, a woman over sixty-four years of .age, lame, and wearing a hood which impaired her power of hearing, was fun over by the defendants’ cart, then moving on a street of this city at the rate of four miles an hour. The driver, when about twelve feet from the plaintiff, shouted to her and pulled in his horse. Plaintiff paid no attention to the shout, continued to advance, and was struck and injured. The trial judge charged that a person crossing the street had the right of way. A driver was bound to take care for him. A person crossing a street, was not bound to look either up or down, but only straight before him ; and the driver was bound to avoid a collision with him. The learned Judge Groyer, delivering the judgment of the majority of the court, held that the charge was erroneous. That although less care is required in crossing streets of cities at the usual crossings, than at-railway crossings, because vehicles traveling thereon move at less speed than railroad trains, and are to a greater extent under the immediate control of those having charge of them ; nevertheless, reasonable care requires in all cases the exercise of vigilance proportioned to the danger encountered. That there was no evidence that the plaintiff had looked at all in either direction for approaching vehicles. That had she looked, she could have seen the horse and cart in time to have avoided them.

The difference between the facts in that case, and in the case at bar will easily be seen. Here, the plaintiff did look, and gave attention to the two cars coming down south. Whether before or when she started to cross the street, she could have seen the car coming north, by which she was struck, if she had looked, is not certain, and was a proper question for the jury (Smedis v. Brooklyn & Rockaway B. R. R., 88 N. Y. 13).

The learned counsel for the defense, in the case at bar, in his printed argument, computes, that if plaintiff were walking at the rate of four miles an hour, a rather fast pace for a woman of her years, she would have crossed to the spot where she was knocked down—thirty feet—in six seconds. She probably walked at a slower pace, but taking it as defendants’ counsel states, the defendants’ car would have traveled from the place' where it was first seen by the witness, to the place where plaintiff was struck—one hundred and twenty-five feet—-also in about- six seconds. Thus, when plaintiff started to cross the street, the car might not have yet arrived within her range of vision, and the street might have seemed to her quite clear toward the south. She might fairly have expected, that no car, traveling at its ordinary rate of speed, could reach the crossing before she had passed over to the sidewalk on the east side of the street. 'And the danger of the car approaching her at a very fast pace—at a run—at the rate of ten or twelve miles an hour, or about double the ordinary speed, was a peril which she had no reason to anticipate, or to provide for. In other words, she may have had good reason to expect that she had twelve seconds to cross, whereas the car coming down at high and unusual speed, struck her within seven seconds of the time she left the sidewalk. She testified that when she first saw the car, if was about eight and a half feet away from her. This eight and a half feet, defendants’ counsel computes, would have been crossed in less than one second, if the car traveled at the rate of six miles an hour. Traveling at ten or twelve miles an hour, the horses must have struck her in the same instant in which she saw them. When the car struck her, and not until then, a shout was raised (Mentz v. 2d Ave. R. R., 2 Rob. 356; aff’d in court of appeals, 3 Abb. App. Dec. 274).

What the plaintiff did or omitted to do in that one i nstant of time,—whether in the shock and terror of that instant a man, younger, more active, more self-possessed, of better judgment than she had, might have even then saved himself by some quick and vigorous action,—is not the question.

That a person in a perilous situation makes a mistake in judgment, where had he remained quiet, he would have escaped injury, does not bar his action (Wasmer v. Delaware, Lack. & Western R. R., 80 N. Y. 212, 218; Cuyler v. Decker, 20 Hun, 173; Coulter v. Am. &c. Co., 56 N. Y. 585; Buell v. N. Y. C. R. R., 31 Id. 314).

That the measure and degree of care, the omission of which constitutes negligence, is to be graduated by the age and capacity of the individual, is expressly decided in Thurber v. Harlem Bridge, M. & F. R. R. (60 N. Y. 326), and the cases there cited. Even thé question, how far the intoxication of a plaintiff and the negligence inferrable from that condition, was a concurrent or contributory cause of the accident was held to be properly submitted to the jury (Milliman v. N. Y. C. & H. R. R. R., 66 N. Y. 642).

The case of Thurber v. R. R. (supra) is, in many respects, in point. There, a boy nine years old, on his way to school, was run over by one of the defendants’ cars while crossing the Boston road in Morrisania. The accident occurred in midday, and the boy was in plain view of the driver of defendants’ car. . The chief question was as to the negligence of the plaintiff. The court said: “It is not enough to authorize a nonsuit, that there is evidence which would have warranted a jury in finding that plaintiff was negligent, and that his negligence contributed to the injury. The question of negligence depends very much on circumstances and is addressed to the judgment of men of ordinary prudence and discretion, and ordinarily for the jury. When the inferences to be drawn from the proof, are not certain and incontrovertible, it cannot be decided as a question of law, by directing a verdict or a nonsuit, but must be submitted to the jury. The circumstances ot' the case,, the positions and conditions of the parties should be considered. The actual result does not necessarily condemn the attempt as rash, or even negligent. Plaintiff was lawfully in the street and crossing it for a proper purpose, and he mistook very slightly as to having time to cross over before the car should reach the point of his crossing. It would have been error to decide as matter of law, that the attempt to cross the street was under the circumstances, '■'■per ae,” negligence.

In the case at bar, it might well have been argued, and the jury might not unreasonably have inferred, that the plaintiff had the right to expect that cars coming toward her from the south would travel at their usual pace, and that no car being, seen by her on that side before she started to cross, she would have had ample time to cross in safety before any car, coming at its ordinary pace, could reach her; and that she was in no degree in fault in making the attempt (Jetter v. N. Y. & H. R. R., 2 Keyes, 154; Buel v. R. R., 31 N. Y. 314).

It should be remembered that she was struck within a few feet of the sidewalk on the east side of Centre street. In a second more she would have completed the crossing, and been wholly out of danger. All these were questions which should have been submitted to the jury.

There is another aspect of this case which deserves notice. The negligence of the plaintiff, even if there had been any, was not the “proximate” cause of the accident.

The plaintiff, while crossing the street, was for a period of six seconds, and while the defendants’ car traversed a space of 125 feet, in full view of the defendants’ driver, if he had been vigilant and looked for any one crossing; and he had ample time to brake up the car and slacken his speed, and avoid striking* the-plaintiff. He did not brake up his car, or slacken his speed until he had struck ¡he plaintiff. She was walking on the ordinary cross-walk. He drove at an unusually fast pace—his horse on the run—the reins loose in his hand—his eye, as far as it appears, not directed toward the plaintiff. There is no evidence that he shouted or in any manner endeavored to attract her attention.

Even if she had been negligent and in fault, it was his negligence or fault, not hers, which was the ‘1 proximate ’ ’ cause of the accident. The jury might have found that she exercised ordinary care, and was not in fault. If the driver of the car did not exercise ordinary care, it was his fault that was the 11 proximate'1'’ and chief cause of the injury ; and if the jury had so found, their verdict could not have been set aside as against evidence. The plaintiff had the right to expect that the driver would slacken his speed when he saw her, and his omission to do so was hot one of the dangers which she was called on to provide against (O’Mara v. H. R. Railroad, 38 N. Y. 445).

Even if there had been negligence on the part of the plaintiff, but the defendant could, in the exercise of ordinary care, have avoided the injury in spite of the negligence of the plaintiff, the failure of defendant to exercise that ordinary care was the “proximate” cause of the accident (Wasmer v. Del. Lack. & W. Railroad, 80 N. Y. 213, 217; Green v. Erie Railroad, 11 Hun, 333).

The theory and intention of the law, is not to punish either the plaintiff or the defendant for negligence ; but to discover which party it was, whose fault, or omission in the performance of duty, was the actual, proximate, and moving cause of the injury ; and to' compel him to compensate the injured party therefor.

In Kenyon v. N. Y. C. & H. R. Railroad (5 Hun, 479), this language is used in the opinion of the court: “ Where an engine driver can, with ordinary care, stop a train so as not to run over a person, the negligence of that person will not prevent a recovery. Neglect on the part of a person in charge of an engine to use ordinary care to avoid injuring a person on the track, is in contemplation of law equivalent to intentional mischief. He has no more right to run over a person, lawfully or unlawfully on the track, than he has to shoot him.”

Such a case furnishes a just and well-established exception to the general rule, that contributory negligence on the part of the plaintiff, will defeat a recovery.

In Healey v. Dry Dock, E. B. & B. Railroad (46 Super. Ct. 473), the relative responsibility of the defendant and of the plaintiff, under somewhat similar circumstances to those of the case at bar, is placed on the surer ground of the negligence of the defendant being the actual, proximate, and moving cause of the injury, and the negligence of the plaintiff being only the remote and accidental cause.

In my judgment, there was enough of evidence in the case at bar on the question of negligence of the defendants, as well as of negligence on the part of the plaintiff, and the relation of each to the cause of the accident, to go to the jury; and the dismissal of the complaint was error.

The judgment should be reversed with costs.


author: By the Court.—Sedgwick, Ch. J.

text:
    CONTINENTAL TELEGRAPH Co., Appellant, v. ALFRED NELSON, Respondent.

      Corporations—action against former president for over-issue of stock under cont/i'act—rule of damages—presumption as to value of over-issued stock.

    In an action by a corporation against its former president to recover damages for wrongfully making a contract on behalf of the company with a third party for the performance of certain labor, which was paid for at a stipulated price in the stock of the company at par, it being alleged that the work could have been executed at a cost to the plaintiff of one-half the contract price, of which defendant was aware, etc., and there being no \ roof that the capital actually owned by the company was of such value, that the stock was worth its face value. Held, that there was no conclusive presumption that the stock so claimed to be over-issued was worth its par value; and that the measure of damages, in case the action will lie, is the amount of money which plaintiff would have been able to obtain by issuing the said excess of stock, in case it had not been taken from it, through the contract.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided May 9, 1883.
    Appeal by plaintiff from judgment entered upon verdict of jury in favor of defendant.

      The plaintiff, a domestic corporation, claimed that from November 28, 1877, to November 27, 1878, the defendant was its president; that on or about September 12, 1878, he, as the representative of the plaintiff, made a contract with one Middleton to lay submarine cables across the rivers and other waters between New York and Philadelphia, etc., at the price of $13,750,, in stock of the plaintiff at par; that 'the contract was completed and the stock delivered to Middleton ; that the contract could have been executed at an expense to the plaintiff of not exceeding one-half the contract price which defendant knew, etc; that the defendant was interested with Middleton through a private agreement; and that, the contract was made with the fraudulent and deceitful purpose, on the part of the defendant, to cheat and defraud the plaintiff, for his own benefit. The plaintiff asked judgment for $7,575 and costs. The defendant answered, among other things, that he lent Middleton $1,000 to enable him to carry out his contract; that Middleton agreed to return the amount, or in lieu thereof, to pay the defendant the proportion in stock which the $1,000 would represent in case the contractor should be paid wholly in stock.
    The judge charged the jury that the plaintiff was entitled to recover any excess in value, over $1,000 of the $2,400 of stock at par, which defendant was to receive, as his pro rata proportion from Middleton, to which plaintiff excepted and asked the court to charge that the measure of damage was one-half of the stock actually issued to Middleton. Refused and plaintiff excepted. The jury rendered a verdict for the defendant.
    Further facts and exceptions appear in the opinion.

      Harry Wilber, for appellant.

      Man & Parsons, for respondent.
   By the Court.—Sedgwick, Ch. J.

—The plaintiff has selected as a remedy of the wrong alleged by it to have been done by the defendant, an action for damages. Nothing but pecuniary compensation is claimed. It is claimed, that the defendant, while former president of the company entered, in behalf of the company, into a contract with Mr. Middleton, by which the latter agreed to lay certain cables, for five hundred and fifty shares of the capital stock of the company, the par value of those shares being $13;750. It is claimed that the defendant at the time knew that tiie laying of the cables was not worth in the shares of the company more than $7,500; that he was interested with Middleton, and for that reason entered into the contract in violation of his duty to the company. On this assumption, whatever other remedy the plaintiff might have, it would be right, that the defendant should pay what damages the plaintiff has suffered. It is not intended to examine the question of whether the plaintiff, in fact, had any cause of action, but only to point out, that here the plaintiff was bound to prove what damage there was.

Evidently, the damage must have come from the company having issued to Middleton certificates- of shares, in the nominal amount of $6,250, more than it would have issued, if the contract had been for the fair value of the laying of the cable.

On this subject, the plaintiff did not assume the position that it was a question for the jury as to the value of the stock referred to, but only claimed that there should be a verdict for the nominal amount of the stock. The counsel first, in asking a direction for a verdict in plaintiff’s favor, as matter of law, claimed “that as to the measure of damages, that is also a. question of law, to be determined by the court, and that the court direct a verdict for such amount, as the court thinks has been proved in excess of payment.” This could only refer to nominal value, for as to actual value or market value, there had been a wide divergence of opinions and facts in the testimony.

After the charge of the court, the counsel asked the court to charge that the measure of damages is one-half of the stock actually issued to Middleton. The court refused the request. The case and the argument upon the appeal show that the request referred to the nominal amount of one-half of the certificates of stock issued to Middleton. On ' the argument of this appeal, the proposition is “that the stock, so illegally issued, must be estimated at its nominal or par value.”

The damage to plaintiff, on the assumption made, would be the amount of money they would be, probably, using that word in a sense favorable to plaintiff, able to obtain, by issuing the $6,250, in nominal amount, if they had not been taken from the company, through the contract ■ that has been referred to. It will perhaps be clearer to refer to the shares as two hundred and fifty shares o,f the capital stock. The learned counsel claims that there is a conclusive presumption, that the company could obtain par value. And so it must be held, if the requests made upon the trial are correct, because on the facts, it was very clearly shown that it was at least doubtful, that the company’s stock was of such value.

It is argued that it1 was a duty of the directors, not to issue certificates of stock, unless real value equal to nominal value was obtained. Such is the law, but it .does not follow as a consequence, that the shares of stock can be disposed of, at their nominal value. The performance of the duty might, as in this case, it probably would, result in the certificates not being issued at all.

A corporation, of course, owns no more or less, because of its issuing or not issuing, certificates of shares of stock. The certificate is only evidence that the corporation has parted with a share, or undivided part, of the property actually owned by the company, with certain limitations that it is not material now to specify. After this share has passed into possession of subscribers or subsequent parties, there is no conclusive presumption, as to1 its value. There' can be no reason for such a conclusive presumption as to it, because it had not changed hands, but remained with the company. In Arnold v. Suffolk Bank (27 Barb. 424), the case was that the plaintiff had subscribed for, or pur-' chased of, the bank, ten shares of the stock and paid in the amount of subscription. The bank refused to issue to him the certificates which would be the evidence of his right. It was held that the plaintiff was the owner of the shares. It was held further that the plaintiff could recover an equivalent”, for his stock, neither more or less. “If the stock had been worth more than its par value, the owner is entitled to the benefit of it. If it had been and continued worth less than its face, during all his ownership, that value is all that the plaintiff can claim.” In the nature of things the same property could not be worth more, if possessed by a bank, than if possessed by a subscriber or purchaser from the bank (Kinchman v. Lidiard, 61 Barb. 579; Van Allen v. Illinois Central Railroad, 2 Keyes, 673). There was no evidence that the capital actually owned by the plaintiff, was of such value, that two hundred and fifty portions of it that would be represented by a certificate issued for two hundred and fifty shares would be an amount equal to par value.

If the matter that has been discussed were not in the case, it would be necessary to examine at length exceptions that referred to the merits. If all these had been determined on the trial, in plaintiff’s favor, they would not have been entitled to recover the damages they claimed. The judge sent the case to the jury in a way that enabled them to pass upon the actual value ' of the stock, as proven by the testimony. They found that $2,400 nominal value of the stock, was not actually worth $1,000. It is consistent with this that the stock had some actual value, but what it was cannot be determined from the verdict. There were some requests to charge that the plaintiffs were entitled to recover, for what would be the value of two hundred and fifty shares without deduction; but their value it was insisted should be estimated, as matter of law, at the nominal value of the stock. As they were not entitled to recover this, I am of opinion that no error injurious to them was committed at the trial.

Judgment affirmed with costs, and order appealed from affirmed with $10 costs.

O’Gorman, J., concurred; Ingraham, J., concurred in result.


author: By the Court.—O’Gorman, J.

text:
    THOMAS LUCE, Respondent, v. JULIUS D. ALEXANDER, et al., Appellants.

      Bond—liability of parties executing, when discha/i'ged—complaint in action on. Pleading—insufficient denial in answer.

    Where a bond is given upon opening a default, which bond is executed by the defendants against whom judgment was entered and two sureties, and is conditioned for “ the payment of any judgment which plaintiff may recover,’’.etc., and two judgments are rendered, one against all of the defendants for a certain sum, and another against one of the defendants for a larger amount, payment of said judgment recovered against all of the defendants does not release the parties executing the bond from their liability thereon as to the remaining judgment.
    In an action on such a bond,, it is not necessary that the complaint should show that plaintiff has exhausted his remedy against the principal.
    A denial in the following form is insufficient to raise an issue: “ defendant denies each and every allegation in said complaint contained, not herein-before specifically admitted or denied.”
    Before Truax and O’Gorman, JJ.

      Decided May 9, 1883.
    Appeal from a judgment against the defendants, entered March 21, 1882, for $1,202.62, damages and costs, and from an order denying a motion for a new trial.
    The answer, after certain specific denials, contained the following clause:

      “ Further answering, defendants deny each and every allegation in said complaint contained not hereinbefore specifically admitted or denied.”
    The bond upon which this action was brought was given upon the opening of a default taken in an action by the present plaintiff against certain of the present defendants, and the condition thereof was that the parties executing it, should “ well and truly pay, or caused to be paid, unto the above-named Thomas Luce or his certain attorney, executors, administrators or assigns, any judgment he may recover in said action, without fraud or delay.”
    Further facts and the exceptions appear in the opinion.

      Joseph E. Newburger, for appellant.

      Charles N. Judson, for respondent.
   By the Court.—O’Gorman, J.

—It is averred by the plaintiff in his complaint and expressly admitted, or not sufficiently denied by the defendants, that on January 28, 1879, they duly executed jointly and severally a bond under seal whereby they obliged themselves to pay to the plaintiff any judgment that he might receive in an action then pending in the court, wherein said, Thomas Luce was plaintiff, and John G: Morrison, Theobaud Frohwein, Julius D. Alexander, and Magnus D. Alexander were defendants ; that all the conditions and terms of said bond on the part of the plaintiff were duly performed ; and that the plaintiff did, on December 14, 1880, recover in said action, judgment against said John C. Morrison for the sum of $1,118.95, being the amount of a verdict against him with interest, and. costs, and against said John C. Morrison, Theobaud Frohwein, Magnus D. Alexander, and Julius D. Alexander, for the sum of $388.84, being the amount of the verdict against them in said action, with interest and costs ; that the "sum of $388.84, with interest was paid to plaintiff on January 26, 1881, leaving the amount $1,118.95, due and unpaid.

The defendants, Magnus D. Alexander, and Julius D. Alexander, in their answer, admit these allegations of the complaint, but deny that there was a valuable consideration for the bond, and allege that the said judgment v/ns discharged by satisfaction on, or about Marcli 7, 1881; and also that the said judgment was improperly granted and without warrant of law.

The plaintiff’s counsel, at the trial of this action, put in evidence the bond of the defendants, and after proving interest, rested his case. The defendants’ counsel thereupon moved for dismissal of the complaint, which motion was denied, and he "duly excepted. He then put in evidence a document executed by the plaintiff’s attorney, in which, (after setting forth the rendition of a judgment in said action on December 23, 1880, in favor of plaintiff against the defendant Morrison for $1,018.95, and against the other defendants therein for $388.84), he acknowledged payment of the sum of .$388.84, being the part so recovered against said Morrison, Frohwein, Magnus D. Alexander, and Julius D.. Alexander. Defendants’ counsel also put in evidence the record showing satisfaction of said judgment, in the sum of $388.84, on March 7,1881, and then rested his case.

The action was tried, by consent, by the learned Chief Judge of this court without a jury, and he adjudged that the plaintiff was entitled to payment in the sum of $1,018.95, with costs and allowances.

The objections of the defendants’ counsel, as presented in his requests to charge, and exceptions, and relied on in his printed points, are'as follows : 1. That the bond sued on is without consideration, and void.

This pbjection is not tenable. The plaintiff, in his complaint has alleged that the bond was executed by defendant for a valuable consideration. Sufficient consideration for the execution of a sealed instrument will be presumed, in the absence of evidence to the contrary. No such evidence appears in this case.

2. That payment of part of the judgment discharges the sureties on the bond.

The case cited by the counsel for the defendants (Woods v. Pangburn, 75 N. Y. 495), is not in point, and does not sustain defendants’ objection. Sections 1204-5 of the Code of Civil Procedure allow judgment to be given for or against one or more plaintiffs, and for or against one or more defendants, etc., and the court may render judgment against one or more defendants, and direct that the action proceed against the others. There is no authority for the position that payment by one defendant of the amount for which he is adjudged to be alone liable, is a discharge of the judgment against other defendants, adjudged to be liable in another sum.

3. Defendants further claim that no action can be sustained against the sureties, unless it appears by the complaint, that plaintiff has exhausted his remedies as against the principal.

This is matter of defense, and should have been set up by the defendants in their answer.

The opinion of Judge Folger in Colgrove v. Tallman (67 N. Y. 99), does not sustain the contention of defendants’ counsel. In that case, it appeared in evidence, that the defendant, Tallman, had sold out his interest in a partnership to one Barnes, who agreed to pay the firm’s debts”. Tallman soon afterward notified the plaintiff, who then held an overdue note made by the firm, of his agreement, and requested him to collect it, which plaintiff failed to do. The court held that Tallman was by virtue of his agreement, in the position of surety for Barnes, and that the delay of the plaintiff to sue Barnes, on receiving notice from defendant, and defendant’s request that he should collect the note from Barnes, released the defendant. There is no dictum in the opinion of Judge Folger, and no suggestion in the argument of the counsel in that case, that the plaintiff was bound in his complaint to negative the charge of negligence, which was the defendants’ ground of defense.

It should be noticed that the allegations in the plaintiff’s complaint, that all the conditions, etc., on his part had been duly complied with, etc., is not denied by the defendants in their answer. The form of denial is incorrect and insufficient (Code Civ. Pro. § 500, Miller v. McCloskey, 1 Civ. Pro. Rep. 252, and notes).

The defendants’ objection that the judgment was invalid and improperly obtained, is not tenable. The validity of a judgment cannot be thus impeached collaterally.

The remaining objections- presented by the learned counsel for the defendants, are overruled.

The judgment is affirmed, with costs, and the order appealed from is affirmed, with $10 costs.

Truax, J., concurred.


text:
    GEORGE GODFREY, as Administrator, &c., Respondent, v. OGDEN D. PELL, Appellant.

      Order of arrest—jurisdiction—undertaking.—Irregularity, how waived.

      Semble,that the failure of the judge granting an order of arrest to require from the plaintiff an undertaking in an amount at least equal to one-tenth of the bail required by the order, in compliance with § 599, Code Civ. Pro., is an error, rendering the order void for want of jurisdiction. *
    But such error is waived and cured where after arrest thereunder, defendant, obtains an order to show cause in which he claims relief in the alternative, either that the order should be vacated and set aside on the merits and for irregularity (which is not specified, as required by rule 37), or that the amount of bail required in said order be reduced, upon which application the bail is reduced to an/amount bringing the plaintiff’s undertaking within the requirements of § 599, Code Civ. Pro.
    Before Sedgwick, Ch. J., Ingraham and O’Gorman, JJ.

      Decided May 9, 1883.
    Appeal from an order denying defendants motion to vacate an order of arrest.

      James M. Fiske, for appellant.

      Felix T. Murplvy, and E. D. McCarthy, for respondent.
   By the Court.—O’Gorman, J.

—So far as the merits of this case are concerned, and on the facts as they appear in the affidavits and papers used on the motion, this court holds that there was enough to justify the order of arrest.

A question, however, has been raised on the argument whether the learned judge who granted the order of arrest, did not err in failing to require from the plaintiff an undertaking in an amount at least equal to one-tenth of the amount of bail required' by the order, in compliance with, section 599 of the code, and whether such error rendered the order of arrest void for want of jurisdiction.

The amount of bail required, was $6,000, whereas the amount of plaintiff’s undertaking was $250.

The defendant’s order to show cause on which the order appealed from was granted, claimed relief in the alternative, either that the order of arrest should be vacated and set aside for irregularity and on the merits, or that the amount of hail required, in said, order he reduced. The learned judge by his order did reduce the amount of bail from $6,000, to $2,500.

We fully concur in the opinion of Judge Lawrence, in the case of The Southern Navigation Co. v. Sherwin (1 Civ. Pro. Rep. 46), cited by counsel for the defendant here, “ that the liberty of the citizen is of quite as much importance as the preservation or security of his property, and that the provisions of the Code should be as strictly construed in cases of arrest as in cases of attachment.”

The defendant in the case at bar, however, has in his order to show cause, complained of the defect, not as going to the jurisdiction of the court to grant the order of arrest, but only as an irregularity ; and he has failed to specify in his order to show cause the irregularity complained of as required by Rule of Court 37.

The order appealed from is in compliance with one of the prayers of his order to show cause, to wit, that the amount of bail be reduced ; and from that part of the order, no' appeal -has been taken.

The defendant’s objection as to the insufficient amount of the plaintiff’s undertaking, has in our judgment been waived by the defendant, and cured by the court.

The amount of defendant’s bail having at the instance of defendant been reduced, the amount of the plaintiff’s undertaking is sufficient.

The order appealed from is affirmed, with $10 costs.

Sedgwick, Ch., J., and Ingraham, J., concurred.


text:
    MARY C. WHEELER, Appellant, v. THOMAS F. TRACY, Respondent.

      Easements—when vendee may refuse title on account of.

    Where the vendor in an executory contract for the sale of lands, agrees to convey certain real estate, viz.: “a tanyard property, .... subject to a mortgage of $3,500,” the vendee is justified in refusing to take said premises, subject also to easements, e. g., a right to certain water-power, also to keep up a dam, and to the use of a spring.
    Before O’Gorman and Ingraham, JJ.

      Decided May 7, 1883.
    Appeal from a judgment dismissing plaintiff’s complaint.
    The facts appear in the opinion.

      Samuel R. Taylor and Charles C. Bull, for appellant.

      Jackson & Martine, for respondents.
   By the Court.—Ingraham, J.

—This action was brought to recover for the damages sustained by plaintiff for a breach of a contract to exchange a tanyard in Oakland, Sullivan county, New York, for certain property in the city of New York.

The contract or agreement is dated September 10, 1879, and by it defendant agrees to take the tanyard property in Oakland, Sullivan county, New York, subject to a mortgage of |3,500, in exchange for house No. 532 West 45th street, in the city of New York, subject to $9,500, and plaintiff agreed to exchange said tanyard property for said house in New York city, the agreement to be executed on or before Saturday, September 13, at room 53, 229 Broadway, New York. On the trial evidence was given tending to prove that prior to September 13, 1879, plaintiff executed a deed of the tanyard property, and that said deed so executed was on September 13, 1879, at room 53, 229 Broadway, New York ; but that defendant did not appear on that day, and it was for such breach that plaintiff claims to recover damages.

It appeared that the deed so ready for delivery, excepted and reserved from the premises conveyed, the William N. Cuse water-power, at or near the butternuts, and excepted and reserved the right to draw water down the raceway, and also the right to keep up the dam across the raceway for said water-power, or any other use the party of the first part, his executors, administrators or assignees, may elect to use said water power for; also the right to enter at any time upon said premises to erect, rebuild or repair the said dam and to keep the same in repair; and also excepting and reserving the spring of water and the right to draw water therefrom, over or through said premises to the house where it is now drawn for use, and the right of ingress and egress to and from the same, with the right to retain and repair and keep in repair the pipe through which water is conveyed over or’ through the premises attempted to be conveyed.

It further appeared that these easements or rights, except the right to the spring of water, belonged at the time in question to one William N. Cuse, who had a mill for which the water in question was used, and the right to the spring was owned by Osner B. Wheeler.

By the agreement the plaintiff agreed to take the tanyard property, subject to a mortgage of $3,500, in exchange for his house, and defendant agreed to exchange said tanyard property for the said house.

The defendant agreed to take and the plaintiff to exchange the tanyard property, and the only question is, did plaintiff perform his contract by conveying the property, subject not only to the mortgage for $3,500, but also, to various easements which were excepted and reserved from the conveyance of the property, and it appeared plaintiff was not at the time of the execution of the agreement or at any time thereafter the owner of the easements.

It has been well settled since the case of Burwell v. Jackson (9 N. Y. 535), that in the case of an executory contract for the sale of land, the vendor impliedly warrants that he has a good title to the land sold, and a vendee has the right if the title be defective, to refuse to receive it, and is not bound to take the title to the premises, when there are incumbrances on it, unless he expressly agreed so to do (See Bonsel v. Gray, 38 Super. Ct. 450).

The defendant agreed to take the title to the property subject to a mortgage of $3,500; if the mortgage was $4,500, it could not be claimed that the defendant would have been bound to convey his house for the property subject to such a mortgage; yet it is claimed here that he was so bound, although it appears that rights over the property were reserved to and owned by others, that as far as appears might have rendered the property entirely useless for the purpose for which defendant intended to use it.

It is sufficient that the implied warranty that plaintiff had a good title to the property was broken. If that is broken and the title to any portion of it fails, the vendee has a right to refuse to receive it, and it can make no difference that the title fails as to a portion of the property or a right to use a portion of the property only. Defendant was entitled to the property, and an offer to convey the greater portion is not sufficient.

It can make no difference, so far as this action is concerned, that defendant’s property was incumbered by covenants against nuisances. If defendant was seeking to compel plaintiff to perform, or was suing for damages for non-performance, that would be a good defense to such a claim; but defendant simply claims that as plaintiff failed to show that she was able to keep her contract and convey to him what she had agreed to convey (viz., the tanyard property subject to a mortgage of $3,500, and to no other incumbrances), that he had the right to refuse to receive it.

The cases holding that covenants fora party wall and for a highway are not incumbrances, do, not apply.

In this case the conveyance excepts and reserves out of the property, the Cuse water-power, a right to keep up a dam, and a spring. It does not appear how extensive a use of the tanyard property such a right might involve, and for all that appears, it may involve the use of the whole property ; but, in any event, the defendant was to have the tanyard property, subject to a mortgage of $3,500, and not subject to the right of other persons to maintain dams, and the property with the water power excepted, in addition to the mortgage. Plaintiff is presumed to know what she owns, and, if she agrees to convey more than she owns, can not complain if the other party refuses to accept a part instead of the whole.

The contract being a mutual one, neither could recover against the other for a breach of its terms or put the other in default, without tender of performance, or at best, proof of a readiness and willingness to perform (Nelson v. Plimpton Fire Proof E. Co., 55 N. Y. 480). The plaintiff having failed to show such readiness and willingness to perform on her part, she could not recover.

The complaint was properly dismissed, and the judgment should be affirmed with costs.

O’Gorman, J., concurred.