of the TJorJ: Citi/ tcr a&iMst in jxtiorin J/ibmry of ike of (Jan. u*ran,ctico in the jjjxatj'ire of lpr.il 1306 DALY'S COMMON PLEAS REPORTS, EEPORTS OF CASES ARGUED AND DETERMINED IN THE COUET OF COMMON PLEAS FOR THE CITY AND COUNTY OF NEW-YOKK BY CHARLES. P. DALY, LL.D., FIRST JUDGE OF THE COCRT. VOL. L NEW-YORK: BAKER, VOORHIS & Co., LAW PUBLISHERS, (SUCCESSORS TO JOHN 8. VOORHIES,) 66 NASSAU STREET. 1868. v-1 Entered, according to Act of Congress, in the year 1866, BY BAKER, VOORHIS & COMPANY, In the Clerk's Office of the District Court of the United States for the Southern District of New-York. JUDGES OF THE COURT OF COMMON PLEAS FOR THE CITY AND COUNTY OF NEW-YORK, SINCE ITS EEOKGANIZATION IN 1821, WITH THE YEARS IN WHICH THEIR OFFICIAL TERMS ORIGINALLY COMMENCED. JOHN T. IRVING, 1821 MICHAEL ULSHOEFFER, 1834 DANIEL P. INGRAHAM, . 1838* WILLIAM INGLIS, 1839 CHARLES P.DALY, 1844 LEWIS B. WOODRUFF, 1850|- JOHN R. BRADY, 1856 HENRY HILTON, ' 1858 ALBERT CARDOZO, 1863 * Elected to the Supreme Court. f Elected to the Superior Court. JUDGES DURING THE PERIOD EMBRACED IN THESE REPORTS. CHARLES P. DALY, FIRST JUDGE. JOHN R. BRADY, ) HENRY HILTON, V JUDGES. ALBERT CARDOZO,* ) Succeeded to Judge HILTON in 1863. A VERY general desire having been expressed for the continuation of the Reports of this Court, the present volume has been undertaken, embracing the decisions of the General Term, held by all the judges, from the close of Judge HILTON'S Reports in July, 1859, except those which have already appeared in Abbotts' or Howard's Reports. The Editor has been assisted hi the preparation of the volume by AMASA A. REDFIELD, Esq., the reporter of the decisions of the New-York Surrogates' Courts, to whom he feels under great obligations. The cases have all of them, however, been examined, and in many cases entirely prepared by the Editor ; and the proof in every case has been read and revised by him in the passage of the work through the press. The Reports have been confined, with three excep- tions, to the decisions of the General Term, and it is hoped, in view of the diversity and importance of the questions determined, that the volume will be found of equal interest with those which have preceded it. GASES REPORTED IN THIS VOLUME. Adams v. Cole, 147 Albany & Buffalo Telegraph Co. De Rutte ., 547 American Telegraph Co.,Bryant ., 575 Annett v. Foster, 505 Applegate, Smith v., 91 Arent -c. Squire, 34*~ B Bailey c. Johnson, 61 Baker v. Bourcicault, ..'... 24 Baker . Connell, 469 Ball . The New Jersey Steamboat Company, 491 Ballard v. Lockwood, 158 Bay State Steamboat Co., Mudg- ett ., 152 Baxter v. Wallace, 303 Bean v. Mather, 440 Beardsley v. Sherman, 325 Bedford t>. Terhune 371 Benedict v. The Ocean Insurance Co., 8 Benedict . Dunning, 241 Berry v. Mayhew, 64 Bishop v. Bniffen, 155 Bishop, Yonkers Fire Insurance Company v., 449 Black . Sixth Aye. R R Co., . . 536 Bloomer v. Merrill, 485 Blun, Loeschigh ., 49 Blydenburgh.^Martin ., . . . . 814 Bock, Hauterman ., 366 Bogart 0. Dean, 259 Bourcicault, Baker ., 24 Bowerman, Meeks ., 99 Bowles, Bryan t., 172 Boston Carpet Co. v. Journeay, . . 190 Bradburn, Case*., 256 B*rady, Lahey ti., 443 Brewer, Sorley ., 79 Bryan v. Bowles, 172 Bryant v. American TeL Co., . . 575 Buchanan, Grinnell ., 538 Buhler, Vincent ., 165 Buhler, The Fire Dep'tm't, fca ., 391 Buttman, Rowan v., 413 Butt . Peck, 83 Butler, Smith v 508 Byrne v. Herran, 344 Cannavan v. Conklin, 509 Cannon, Dean 0., 34 Cary v. Thompson, 85 Case v. Bradburn, 256 Cassin v. Delaney, 224 Catley, Herrick ., 512 Christalar, Lester v., 29 Cole, Adams ., ....... 147 Columbian Fire Insurance Com- pany Conklin, Cannavan 0., 509 Connell, Baker v., ...... 469 Corlies, Farish c^ ...... 274 Cox, Welts ., ........ 515 Cummmgs v . Mills, ...... 520 D Day 0. The Orient Mutual Insur- ance Co., 13 Dayton . Rowland, 446 Dean, Bogart ., 259 Dean r. Cannon, ....... 34 Decker, Loomis t>., 186 Delaney, Cassin t>., 224 De Lever, Wells c., 39 De Rutte v. The Albany & Buffalo Telegraph Co., 547 Dikemuii ~v. Puckhafer, .... 489 Discon, Johnson v., 178 Dubois e. Thompson, 309 Duff, Fox ., 196 Dunbar, Emery ., 408 Dunham . Pettee, 112 Dunning, Benedict v. 241 CASES KEPOKTED. E Eckstein v. Frank, 334 Ellis v. The Mayor, &c., .... 102 Emery v. Dunbar, 408 F Parish v. Corlies, .... Farrington, Mangum ., . . Fash v. The Third Avenue Rail- road Co., Ferris, Smith ., Fire Department, &c. v. Buhler, Fisher v. Merwin, Fitzgerald, Petrie >.,.... Foster, Annett ., Fox . Duff, ....... Frank, Eckstein 0., ....*. 274 236 148 18 391 234 401 503 196 334 G Gilhooly v. The New York & Sav- annah Steam Navigation Co., 197 Glen Cove Starch Co., Trow ., . 280 Goings v. Patten, 168 Great Western Railway Co., Le Sage v., 306 Greaton v. Smith, . . . . . .380 Grinnell . Buchanan, 538 H Hadden . N. Y. Silk Manufactur- ing Co., .' . . Hagar, James v., Haley, Gates a., Hall, Harper ., . Halpin, Wilson v., Harper v. Hall, Harriott v. N. J. Transportation Co., Vi Harrison, Thompson v., . . . . Harnden's Express, Moriarty ., . Hauterman v. Bock, Hawkins, Schieffelin .,.... Hawley, Matter of Hawley, Western Transportation Co. ., Henderson v. Sturgis, Herran, Byrne >., Herrick v. Catley, Honegsberger v. Second Avenue Railroad Co., Hopkins v. Wyckoff, Hoyt t. Sixth Avenue R. R. Co., . Hunt v. Singer, Hyde v. Van Valkenburgh, . . . Independent Lin of Telegraph, Rittenhouse ., 474 Irving Bank, Schneider .,... 500 Jacobs v. Morange, 523 Jacobs, Myera., 82 James v. Hagar, 517 Jaroslauski v. Saunderson, . . . 232 Johnson, Bailey ., 61 Johnson v. Discon, 178 Journeay, The Boston Carpet Com- pany 0., 190 K Kelly, Kelso v., . . . . . . . .419 Kelly, Reynolds ., 283 Kelso . Kelly, 419 Kenyon, Thomas ., 132 Knox v. Nutt, 213 Kunz v. Stuart, 431 Lahey v. Brady, 443 Lenke, Shaw t>., 487 Lent, Wallace ., 481 Lester . Christalar, 30 Le Sage v. Great Western Railway Co., 306 Levy, Sperling ., 95 Lewis, Smith v 452 Lightstone, Ogilvie ., 129 Lockwood, Ballarda., 158 Loeschigh v. Blun, 49 Loomis v. Decker, 186 Lyons, May or &c., of New York ., 296 388 517 338 498 496 498 377 302 227 366 289 531 327 336 344 512 89 176 528 209 Matter of Hawley, 531 416 ; Matter of Miller 562 M McAuley v. Meldrum, 396 285 Mcllhenny v. Wasson, Mcllvain, Place v., 266 McLaren v. Mayor, &c., of New York, Mangum v. Farrington, .... Martin v. Blydenburgh, .... Mather, Bean v., 440 243 236 3*4 CASES KEPOKTED. XI Matter of Scott, 534 Mayhew, Berry v., 54 Mayor, &c., of New York, Ellis ., 102 Mayor, &c., of New York, McLa- ren ., 24? Mayor, &c., of New York, O'Mea- ra ., 42 Mayor, &c., of New York, Pur- due ., 121 Mayor, &c., of New York v. Lyons, 296 Mayor, &c., of New York, Rus- sell ., 263 Mayor, &c., Smith v., 21S Mayor, &c., Treadwell ., . . . . 12? Mayor, &c. v. Tucker, 10? Meeks v. Bowerman, 99 Merrill, Bloodier v., 485 Merwin, Fisher v. t ....... 234 Methodist Book Concern, Ro- bert! t>., 3 Mildruin v. McAuley, 396 Miller, Matter of 562 Mills, Cummings t>., 520 Montegriffo v. Musti, 77 Morange, Jacobs v., 522 Moriarty v. Harnden's Express, . 227 Morrris c. Third Avenue R R Co., 202 Mudgett v. Bay State Steamboat Co., 152 Murphy, The People ex rel La- rpcque ., 462 Musti, Montegriffo v., 77 Myer t>. Jacobs, 82 Patten, Goings v., 168 Peck, Butt ., 83 People ex rd Larocque v. Murphy, 462 Peterson . Walsh, 179 Pettee, Dunham ., 112 Petrie v. Fitzgerald, 401 Place c. Mcllyain, 266 Puckhafer, Dikeman v., 489 Purdue v. The Mayor, &c., . . .121 R Rappellyea v. Russell, 214 Raynor, Stilwell ., 47 Reimer, Schuschard v., .... 459 Reynolds t>. Kelly, 283 Riblet v. Wallis, 360 Richards v. Vanderpool, .... 71 Rittenhouse v. The Independent Line of Telegraph, .... 474 Roberti v. The Methodist Book Concern, 3 Rogers . Rogers, 194 Rogers, Rogers v. t 194 Rowan v. Buttman, 413 Rowland, Dayton v., 446 Russell, Rappelyea v., 214 Russell v. Mayor, &c., of New York, 263 Neidig, Solomon ., 200 New Jersey Steamboat Company. Ball*., .491 N. J. Transportation Co., Harri- ett ., 377 New York & Savannah Steam Nav. Co., Gilhooly v., 197 N. Y. Silk Manufacturing Co., Had- den., 388 Nichols, Sager t>., 1 Nutt, Knox t>., 218 Gates c. Haley, Ocean Insurance Co., Benedict v., Ogilvie v. Lightstone, ... O'Meara v. The Mayor, &c., of New York . Orient Mutual Insurance Company, 838 8 129 425 13 s Sager v. Nichols, 1 Saunderson, Jaroslauski v. t , . . 232 Second Avenue R R Co., Hon- egsberger v., 89 Schieffelin v. Hawkins, .... 289 Schneider v. The Irving Bank, . . 500 Schnschard v. Reimer, 459 Scott, Matter of 534 Sherman, Beardsley v., .... 325 Shaw v. Lenke, 487 Sixth Ave. R. R Co., Black ., . . 536 Sixth Avenue R R. Co., Hoyt ., . 528 Smith v. Ferris, 18 Smith v. Applegate, 91 Smith v. The Alayor, &c., . . .219 Smith, Vanderpool v., 311 Smith, Greaton v., 380 Smith v. Lewis, 452 Smith v. Butler, 308 Sniffen, Bishop r., 155 3'maer, Hunt 0., 209 Solomon v. Neidig, 200 Sorley v. Brewer, 79 Sperling v. Levy, 95 Xll CASES REPORTED. Stilwell . Raynor, 47 Stuart, Kunz v., 431 Stuart . The Col umbian Fire Insur- ance Company, 471 Sturgis, Henderson 0., 336 Squire, Arent ., 347 T Terhune, Bedford ., 371 Third Avenue R. R. Co., Fash ., . 148 Third Avenue Railroad Company, Morris ., 202 Thomas v. Kenyon, 132 Thomas v. Wickmann, 58 Thompson, Gary ., 35 Thompson, Dubois ., 809 Thompson v. Harrison, .... 302 Tradesmen's Fire Insurance Co., Williams 0., 437 Tradesmen's Fire Insurance Co., Williams*., 322 Treadwell v. The Mayor, &c., . . 123 Trow v. Glen Cove Starch Co., . . 280 Tucker v. The Mayor, &c., . . .107 Vanderpool, Richards v., .... 71 Vanderpool v. Smith, ..... 311 Van Valkenburgh, Hyde ., Vincent v. Buhler, 416 165 w Wallace, Baxter v .303 Wallace v. Lent, 481 Wallis, Riblet ., 860 Welsh, Peterson v., 179 Wasson, Mcllhenny ., 285 Wehrkamp v. Willet, 4 Wells v. De Leyer, 39 Wells . Cox, 515 Western Transportation Co. v. Hawley, 327 Wickmann, Thomas .,.... 58 Willet, Wehrkamp v., 4 Williams 0. Tradesmen's Fire Insu- rance Co., 322 Williams v. The Tradesmen's Fire Insurance Co., 437 Wilson 0. Halpin, 496 Wyckoff, Hopkins ., 176 Yonkers and N. Y. Fire Ins. Co. v. Bishop, 449 THE COURT OF COMMON PLEAS FOB THE CITY AND COUNTY OF NEW YOKE. " WILLIAM SAGEK v. SELLICK NICHOLS, impleaded, <&c. For supplies famished a vessel upon the order of the captain, while acting for the owners, the owners are liable in solido ; and a non-joinder of any part-owner in an action to recover for such supplies may be taken advan- tage of by plea in abatement. In an action against the owners of a vessel for supplies furnished her, where only one of the defendants is served, and it does not appear by the evi- dence that the other defendants are part owners Held, that there was a clear misjoinder of parties defendant, which the defendant served was entitled to take advantage of at the trial, and his motion for a nonsuit should have been granted. In an action against joint debtors or obligors where all are named as de* fendants a several judgment cannot be given. APPEAL by defendant from a judgment of the Marine Court at General Term. The action was brought to recover sixty dollars for help furnished the captain of the schooner J. T. Johnson. The action was against the owners of the vessel, all of whom were included as parties defendant, but only the defendant Nichols was served with process, and plaintiff en- deavored to recorer against him as one of the owners. At the trial the defendant's counsel moved for a nonsuit on the grounds, among others, that plaintiff had not shown COURT OF COMMON PLEAS. Sager v. Nichols. that all of the defendants named in the process were part owners of the vessel ; that it did not appear that the defend- ants were jointly liable, or that the other defendants were proper parties ; that a several judgment could not be rendered against defendant Nichols ; and that it appeared that plain- tiff had not used diligence in endeavoring to serve the other defendants. The motion for nonsuit was denied, and the jury, upon the charge of the Court, rendered a verdict in fa- vor of plaintiff, for the amount claimed. The judgment was affirmed at General Term, and the defendant appealed. Solomon L. Hull, for appellant. Benedict, Burr & Benedict, for respondent. BY THE COURT. HILTON, J. 1. For supplies furnished a vessel upon the order of the captain, while acting for the owners, the owners are liable in solido, and a non-joinder of any part owner in an action to recover for such supplies may be taken advantage of by plea in abatement. Abbott on Ship- ping, 150, 151, (7th Am. Ed.) ; Parsons' Mercantile Law, 338 ; Story on Partn. 419 ; 3 Kent Com. 154, 155 ; Colly er on Partn. 1226 ; Ward v. Green, 6 Co wen, 173. 2. The complaint averred the defendants to be owners of the vessel ; it alleged a joint liability, and the plaintiff was required to prove a joint indebtedness. The evidence only showed two of the defendants named to be owners. There was a clear misjoinder of parties defendants, which the appellant was entitled to take advantage of at the trial by his motion then made for a nonsuit. Graham's Practice, 95 ; Harrington v. Higham, 15 Barb. 524 ; Robertson v. Smith, 18 John. 459.. 5. In an action against joint debtors or obligors, where all are named as defendants, a several judgment cannot be given. Oilman v. Rives, 10 Peters, 298 ; Robertson v. Smith, 18 John. 459, sup. ; May v. Roberts, 2 Bos. & Pul. K S. 454; 1 Chitty PL 46, 6th Am. Ed. ; Code, 136, sub. 1.) Judgment reversed. NEW YORK JULY, 1859. Roberti v. The Methodist Book Concern. HENRY H. ROBERTI AND MARGARET ROBERTI, HIS WIFE, v. THE METHODIST BOOK CONCERN. A married man having his family fixed in one place, but doing business at another, is deemed to have his residence at the former, and while his fam- ily so remain fixed, he cannot acquire a residence elsewhere. Although by reason of a prolonged absence from the State, a party might be proceeded against by attachment at the instance of a creditor, yet he may be deemed a resident of this State for all other purposes. Thus, where a plaintiff had been absent from the State for more than two years, on business, but his wife and minor child continued to reside here Held, that the plaintiff was not such a non-resident as that the Court would compel him to file security for costs. APPEAL from an order granted, on motion, at Special Term, requiring the plaintiffs to file security for costs within twenty days. The affidavits on both sides, read on the .motion, show that Henry H. Roberti, one of the plaintiffs, and husband of the other plaintiff, was not in this State at the commence- ment of the action, and had not been in this State for more than two years. The action was brought to recover damages for injuries to the person of the plaintiff, Margaret Roberti, and to the fur- niture in her apartments, caused by the fall of a chimney, built and owned by the defendants, on their premises near the apartments where Margaret Roberti lodged. The plaintiff, Margaret Roberti, in her affidavit in opposi- tion to the motion, alleged that her husband was absent from New York -on business ; that she did not know the exact place in which he was ; but she thought he was then in Kan- sas or Texas, and would soon return to his residence in this city. That since his absence, she and her minor daughter have resided in this city, and had received letters from her husband from time to time, expressing an intention to return to his home here. C. L. Spilthorn and John B. Fogarty for appellants. E. L. Fancher for respondents. COURT OF COMMON PLEAS. Wehrkamp v. Willet. BY THE COURT. HILTON, J. When the plaintiff, Henry H. Roberti, left this city two years ago, he was a resident of this State, his domicil and family, having been located here for about two years previously. Although, by reason of his prolonged absence, he might be proceeded against by attachment at the instance of a creditor, yet .he is Btill to be deemed a resident of this State for all other purposes. A married man having his family fixed at one place, but doing business at another, the former is to be deemed his place of residence ; and while his family so remain fixed, he cannot acquire a residence elsewhere : the rule being that his original domicil must prevail until he acquires another. Phillimore's Law of Domicil, 28, 209 ; Matter of Thompson, 1 "Wend. 44 ; Chaine v. Wilson, 1 Howard, 552, 558 ; Jdoughton v. Ault, Id., 78. The case of Wright v. Black (2 Wend. 258), cited by re- spondent as controlling the present case, was prior to the Re- vised Statutes, and seems to be under a rule of Court made in January, 1799. Besides, it did not there appear that the plain- tiff had a family, or any fixed place of abode. Order appealed from reversed with $10 costs. ELLA E. B. WEHKKAMP v. JAMES C. WILLET, Sheriff, &c. Although a new trial will not be granted on evidence merely contradicting the testimony on which the verdict proceeded, discovered subsequent to the trial, yet where the facts, on which the witnesses for the prevailing party founded themselves, are falsified by the affidavits produced on the motion, it affords a sufficient ground for ordering a new trial. In an action by a married woman against the sheriff for taking certain per- sonal property, claimed by her to be her separate estate, upon a judgment and execution against her husband Held, that her testimony on the trial tend- ing to show her ability to purchase the property claimed, with moneys of her own, and independent of her husband, was material to the issue. And where it is shown beyond dispute, by affidavit, on a motion for a new trial, that her testimony on that point was false Held, sufficient ground for granting a new trial. NEW YORK FEBKUAEY, 1860. Welirkamp v. Willet. APPEAL by plaintiff from an order made by Judge Hilton at Special Term, granting a new trial. The action was brought by the plaintiff, who is the wife of William C. Wehrkamp, against the defendant as sheriff, for taking certain personal property, claimed by her to be her separate estate, under a judgment and execution against her husband. The plaintiff was a witness in her own behalf, and the principal one to prove the property to be her separate estate. ... f> The jury found a verdict for the plaintiff, assessing the value of the property at $600. On the motion for a new trial, the defendant's counsel read an affidavit setting forth that defendant was taken by surprise by all that part of plaintiff's testimony relating to her posses- sion of money in the savings bank, and her ability to have loaned money to her husband. He also read an affidavit made by an accountant of the savings bank, alleging that the plain- tiff had no moneys in the bank at the time testified by her on the trial ; also an affidavit that this testimony was newly dis- covered. The motion for a new trial was granted. The reasons for this determination were stated in the following opinion : HILTON, J. I think this case falls within the rule stated in Lister v. Mundell (1 Bos. & Pul. 429). The Court there held that, though it was unusual to grant a new trial on evidence contradicting the testimony on which the verdict had pro- ceeded, discovered subsequent to the trial, yet, as the very facts on which the witnesses for the prevailing party had founded themselves were falsified by the affidavits produced on the motion, it afforded a sufficient ground for ordering a new trial. In the present case, the plaintiff testified that she had money in the Bleecker Street Savings Bank at the time she bought the carpets of Doughty, and that she checked out of the bank to pay him some of his bills ; and I think, also, the fair infer- ence from her testimony is, that in December, 1857, when her husband borrowed the $600 from Carpenter, she had at least that amount in the bank, and could have loaned it to her husband had she been so disposed, and her evidence, it seems to me, COURT OF COMMON PLEAS. Wehrkamp v. Willet. was intended to create such a belief in the minds of the jury. It certainly has that effect upon me. It cannot be denied that these were statements of material facts, because they showed her ability to purchase the property claimed, with moneys of her own, and independent of her hus- band. That they were false is beyond dispute, as it is shown that her account with the bank was closed March 13th, 1857, by her drawing out the entire balance then remaining to her credit, and since that time she has had no money there. I think it would be a dangerous precedent to permit a ver- dict to stand which was predicated almost wholly upon the evidence of a party in interest who thus testified. Marshall v. Union Ins. Co., 2 Wash. C. C. R., 411 ; Tuttle v. Cooper, 5 Pick. 414 ; 3 Graham & Waterman on New Trials, 1080 ; The People v. Superior Court, 10 Wend. 285. Motion for new trial granted. The plaintiff appealed to the General Term. C. Bairibridge Smith for appellant. I. In the case of Lister v. Mundell, 1 Bos. & Pul. 429, upon which the Judge relied in granting the motion, the facts on which the witnesses had founded themselves were shown to be false. In the case at bar, the affidavit^, instead of showing the facts on which the verdict was founded to be false, establish that the plaintiff had a separate estate. The contradiction, if any, is merely to a collateral fact, brought out by the defend- ant himself, and not touching the point in issue. II. To grant a new trial on the ground of newly discovered testimony, (1.) The testimony must have been discovered since the former trial. (2.) It must appear that the new testimony could not have been obtained with reasonable diligence on the former trial. (3.) It must be material to the issue. (4.) It must go to the merits of the case, and not to impeach the character of a former witness. (5.) It must not be cumulative. 1 Gra. & Wat. on New Trials, 462, 496 ; JSunn v. Hoyt, 3 Johns. 255 ; Shumway v. Fowler, 4 Id., 425 ; Duryee v. Den- nison, 5 Id., 248 ; The People v. The Superior Court, 10 Wend. 285 ; Harrington v. Bigelow, 2 Den. 109 ; Fleming v. Hollenback, 7 Barb. 271. NEW YOEK FEBEUAEY, 1860. Wehrkamp v. Willet. III. The newly discovered testimony does not establish a new fact. At most, it contradicts former evidence. In that point of view, the testimony is not material. Halsey v. Wat- son, 1 Caines, 25. A. It. Dyett, for respondent. I. Our affidavits show no want of diligence, and make out a clear case of surprise. II. The Court will not grant a new trial to impeach a wit- ness, but they will to contradict one, by showing that the fact he swore to did not exist, which is this case. Indeed, here the new evidence contradicts the party-witness, and shows that material matters of fact sworn to by her could not have existed (the strongest sort of evidence), and that she knew they were false when she uttered them : so that the principle -falsus in unofalsus in omnibus would entirely destroy her whole evi- dence, without which the defendant would be entitled to a verdict as a matter of law. BY THE COURT. HILTON, J. We think the fact whether the plaintiff had money in the savings bank at the time stated by her was material, and the facts shown by the affidavit, if known at the time, might have produced a very material effect on the minds of the jury. She was testifying to her pe- cuniary ability, and, to fortify her evidence, referred to the fact of her having bought the goods on credit, because she wanted to secure the interest on her money then in the savings bank. This circumstance was a material one tending to strengthen her evidence with the jury, and was denying a fact upon which she founded her statement respecting her ability to purchase and pay for the property in question. How far it influenced the jury, of course we cannot say, but it is a material fact in the case, newly discovered, and falls within the case cited in the opinion at Special Term. Order affirmed. COURT OF COMMON PLEAS. Benedict v. The Ocean Insurance Company. JESSE W. BENEDICT v. THE OCEAN INSURANCE COMPANY. The words "privilege for $4,500 additional insurance" written in the body of a policy of insurance Held, to work a waiver of a subsequent printed con- dition in the policy requiring notice to be given to the insurers of any other insurance (within the sum specified), and to have the same indorsed on the policy. The true intent and meaning is that the insured may obtain further in- surance without notice to the company, and without affecting their policy or their liability upon it, provided such additional insurance does not exceed $4,500. Where it is shown that the company prepared the policy of insurance after a careful examination of the insured premises by their own surveyor, and with a full knowledge of the nature of the risk Held, that any misdescrip- tion of the policy was the fault of the company, and the insured should not be called upon to bear the consequences. A cellar is not one of the " stories " of a building. Although, at the trial, evidence of certain admisssions of defendant's agent may have been improperly admitted, yet where it worked no injury to the de- fendant, the action being abundantly sustained without it Held, that, on appeal, it will be rejected as immaterial matter', and the objection and ex- ception to its admission may be disregarded. APPEAL by defendants from a judgment entered against them at Special Term in favor of the plaintiff. This was an action brought by the plaintiff, as as signee of August Janson, to recover the loss by fire of certain property insured by the defendant. The policy was dated the 13th of November, 1857, and for $70 premium insured Janson against loss or damage by tire to $2,000 $1,800 on his stock as a cabinet-maker, and $:WO on tools and benches, contained in the five-story brick building, with tin roof, in the rear of 195 and 197 Chrystie-street, New- York. On the night of the 21st of January, 1858, the buildings were totally destroyed by fire. The loss was $9,170 84, of which $7,612 84 was on the stock, and $1,558 on the tools. NEW YORK FEBKUABY, 1860. Benedict v. The Ocean Insurance Company. The policy contained this clause, specially written upon the face of the policy, at the time the policy was issued: " Privilege for $4,500 additional insurance" There was exactly- this amount of additional insurance, namely: 2,000 in the Hamilton Fire Insurance Company; $2,000 in the New York and Erie Insurance Company ; $500 in the Tradesmen's Insurance Company. In the body of the policy the following provision was printed : " And provided further, that in case the assured shall have already made any other insurance against loss by fire on the property hereby insured, not notified to this corporation, mentioned in or indorsed upon this policy, then this insurance shall be void and of no effect. And if said insured, or his assigns, shall hereafter make any other insurance upon the same property, and shall not, with all reasonable diligence, give notice thereof to this corporation, and have the same indorsed on this instrument, or otherwise acknowledged by them in. writing, this policy shall cease, and be of no further effect." The cause was trie.d before Judge Daly and a jury on the 16th and 17th of December, 1858, and a verdict rendered for the plaintiff for $2,095 67. + J. B. Brinsmade (Barrett, Brinsmade & Barrett] for appel- lants. 1. The exception of the appellant to the ruling of the Court in refusing to allow the appellant to show that the respondent had effected insurance with other companies without notice, was well taken. (1.) The words in the policy, " Privilege for $4,500 additional insurance," have no effect to dispense with the necessity of giving such notice. They merely bind the company not to object, after notice, to the additional insurance on account of its coming up to that sum. Westlake v. St. Lawrence Co. M. Ins. Co., 14 Barb. 206 ; JBurt v. People's M. Fire Inn. Co., 2 Gray (Mass.), 397 ; Forbes v. Agawam M. F. Ins. Co., 9 Gush. (Mass.), 470 ; Worcester Bank v. Hart- ford F. Ins. Co., 11 Gush. (Mass.), 265 ; Metten v. The Ham- ilton Fire Ins. Co., 17 N. Y. (3 Smith), 609 ; McEwen v. 10 COURT OF COMMON PLEAS. Benedict v. The Ocean Insurance Company. i Montgomery Co. M. Ins. Co., 5 Hill, 104 ; Potter v. The On- tario Mutual Ins. Co., 5 Hill, 147. II. The Court should have nonsuited the respondents (1.) The description of the building in the policy was a warranty that the building should conform to the description, and every warranty is a condition precedent to the plaintiffs right of recov- ery. Blair v. Loparts, 1 Doug. 11 ; Pawson v. Watson, 2 Cowp. 785 ; Craig v. U. S. Ins. Co., 1 Peters' Cir. Ct. Rep. 416 ; Mel v. Church, 2 John. Cases, 333 ; Ogdcn v. Ash, 1 Dall. 162; Fowler v. Etna Ins. Co., 6 Cow. 673 ; Kennedy v. St. Lawrence Co. Mu- tual Ins. Co., 10 Barb. 285 ; Wilson v. Herkimer Co. Mut. Ins. Co., 2 Selden, 53 \Meadv. Northwestern Ins. Co., 3 Selden, 530; Sillere v. Thornton, 26 Eng. Law and Eq. R. 238. (2.) The concealment of the facts that the respondent occupied the cellar of the building for the storage of his goods was the conceal- ment of a fact material to the risk, and vitiated the policy. Stebbins v. Globe Ins. Co., 2 Hall, 632 ; Carpenter v. American Ins. Co., 1 Story, 57 ; Dennison v. Thomaston M. Ins. Co., 2 App. 125 ; Ingraham v. S. Carolina Ins. Co., 3 Brevard, 522 ; Chitty on Contracts, 683. (3.) Even if it could be assumed as a fact, that the surveyor of the company knew of the existence of the cellar, and knew that it was occupied for the storage of inflammable materials, it could not change the case, because the description of the building in the policy is a warranty ; and notice to an agent of the insurer, or even to the insurers them- selves, could not relieve the insured from the obligations of the warranty. Kennedy v. St. Lawrence Ins. Co., 10 Barb. 285 ; Lee v. Howard Ins. Co., 3 Gray (Mass.), 583 ; Jennings v. Chenango Co. M. Ins. Co., 2 Denio, 75 ; Wall v. East River Ins. Co., 3 Duer, 264. III. The Court erred in admitting evidence of the acts and declarations of Wilcox. Where there is a warranty, parol evi- dence is inadmissible to affect the warranty. The rule which prevails upon sales of property that a. warranty does not ex- tend to defects which are known to the purchaser does not apply to warranties in contracts of insurance. Kennedy v. St. Lawrence Ins. Co., 10 Barb. 285 ; Jennings v. Chenango Ins. Co., 2 Denio, 75 ; Wall v. East River Ins. Co., 3 Duer, 264 ; Lee v. Howard Ins. Co., 3 Gray (Mass.), 583. NEW YORKFEBRUARY, 1860. 11 . Benedict v. The Ocean Insurance Company. Andrew Boardman (Benedict & Boardmari) for respon- dents. I. There was no misdescription of the premises. (1.) The term ' story " is not applied to a cellar. " In the United , " States, the floor next the ground is the first story. In France ."and England, the first floor or story is the second from the "ground." (Webster's Dictionary, word "Story.") (2.) The surveyor of the defendants went through the building prior to the policy being issued ; they afterwards furnished the policy containing the description objected to. They cannot take ad- vantage of their own act to avoid the policy. II. The acts and declarations of "Wilcox were properly ad- mitted in evidence. (1.) They were part of . the res gestce. (2.) They were all prior to the delivery of the policy by him to Janson, on behalf of the defendants, and while he was acting as their agent. (3.) The admission of the testimony could do no legal injury, and even if it were erroneously admitted, the exception would be disregarded. Shorter v. The People, 2 N. Y. 193. III. The "privilege" granted by the defendant to the insured "for $4,500 additional insurance" was a waiver of that con- dition of the policy, that if the assured made any other in- surance upon the same property without notice thereof to defendant, &c., the policy should be of no effect. In the construction of a policy of insurance, the written part is to pre- vail over the printed. Deling nemare v. The Tradesmen's Ins. Co., 2 Hall, 622 ; Harper v. The Albany Mut. Ins. Co., 17 N. Y. 194 ; Mellen v. Hamilton Fire Insurance Co., 17 N. Y. 609. BY THE COURT. HILTON, J., (orally). 1. We do not per- ceive how any effect can be given to the words written by the defendanta in the body of the policy, except by construing them as a waiver of the condition requiring notice to be given to the company of any other insurance (within the sum speci- fied), and to have the same indorsed upon the policy. To say that it extended only to waiving notice of the insurance, and not to the condition requiring the indorsement, it seems to us 12 COURT OF COMMON PLEAS. Benedict v. The Ocean Insurance Company. would be giving a strained and unnatural construction to the sentence, and such a one as the parties never contemplated. "We think its true meaning and intent to be that the insured might obtain further insurance without notice to the company, and without affecting their policy or their liability upon it, provided such additional insurance did not exceed $4,500. 2. In connection with the fact that the company made out the policy, it appears that their surveyor had previously ex- amined the premises throughout, and knew their character. If, therefore, there was any misdescription in the policy, it was their fault, and the insured should not be called upon to bear its consequences. But there was no misdescription. The building was a five- story one, being that number of floors above the sidewalk, and it was so described in the policy. But, assuming that there was a misdescription, we think it would be a gross act of in- justice to permit a company who, it is shown, prepared the policy of insurance after a careful examination of the insured premises by their own surveyor, and with a full knowledge of the nature of the risk, to avail itself of such an error of its own, by which the policy might be avoided. 3. The admissions of "Wilcox may have been improperly ad- mitted in evidence, and we rather incline to the opinion that they were ; but they worked no injury to the defendants, as the action was abundantly sustained without them. Rejecting them, therefore, as immaterial matter, in no way affecting the conclusion arrived at, it follows that the objection and excep tion to their admission may be disregarded. Judgment affirmed. NEW YOEK MAY, 1860. 13 Day v. The Orient Mutual Insurance Company. . CHARLES DAT v. THE ORIENT MUTUAL INSURANCE COMPANY. Where in a policy of insurance, although "a time policy," a geographical track is declared, and the insured is specifically prohibited from entering certain ports Held, that a voluntary voyage to any such prohibited port amounted to a breach of the warranty of the insured not to enter such ports, and that from that time the policy ceased to cover or protect the vessel. Held further, that a permission to use one of the prohibited ports, indorsed on the policy, did not abrogate the warranty in the policy " not to use foreign ports or places in the Gulf of Mexico." Held further, that the subsequent return of the vessel in safety in no way re- vived or restored the original obligation of the insurers, and no action can be maintained for her loss after such deviation. APPEAL by the defendants from a judgment rendered at Special Term on the verdict of injury. ** A The defendant, by a policy of insurance, insured one-half the schooner Allie Day for one year, from 26th March, 1856, to 26th March, 1857, against perils of the sea, &c. ; the vessel was valued at $10,000. The policy contained a warranty " not to " use ports or places in Texas, except Galveston, nor foreign " ports or places in the Gulf of Mexico." The insurance was made for the benefit of the plaintiff, who was owner of this half of the schooner. By a subsequent agreement added to the policy on 12th April, 1857, " for the additional premium of one per cent, per- " mission was given to make a voyage from New-Orleans to " Vera Cruz." The schooner, under that permission, went to Vera Cruz, thence to Ooatzacoalcos, and returned in safety to Boston, and thence to Apalachicola, where she belonged, and was there de- stroyed by a storm one of the perils insured against. The presiding judge (DALY, F. J.,) charged the jury in sub- stance as follows : *' 1 shall, for the purposes of this trial, in- Btrnct you that a deviation of the kind referred to in the testi- mony will not necessarily avoid the policy. If the vessel re- turns into her accustomed track in safety, and a loss afterwards 14 COUKT OF COMMON PLEAS. Day v. The Orient Mutual Insurance Company. occurs, the insurers would still be liable to pay such loss. That the liability incurred by the insured under a time policy, in case of a deviation, is the risk of having to bear the loss them- selves, should any occur during such deviation." The defendants' counsel duly excepted, and the Jury, under the instructions of the Court, found as follows : That the Allie Day went to the port of Coatzacoalcos in violation of the war- ranty ; that she returned in safety, and was destroyed by the perils insured against at Apalachicola, on 31st August, 1856, and, under the instructions of the Court, rendered a verdict for plaintiff for $5,811 80 ; and the Court ordered judgment ac- cordingly. Alexander Hamilton, Jr., for appellants. I. The provision in the policy " Warranted not to use foreign " ports and places in the Gulf of Mexico," is an express war- ranty in fact as well as in terms. Such a warranty as this is not in the nature of an excepted or excluded risk, but is a positive engagement on the part of the assured, in regard to an act within his own volition and control. Palmer v. Warren Ins. Co., 1 Story, 360. II. The law both in England and the United States is well settled, that an express warranty, being in the nature of a con- dition precedent, must be literally complied with, and, there- fore, the breach of it by the assured avoids the contract, and discharges the underwriter, though the loss be wholly uncon- nected with such breach. Colledge v. Harty, 3 Eng. L. & Eq. 550 ; Duncan v. Sun fire Ins. Co., 6 Wend. 488 ; West/all v. Hudson River Fire Ins. Co., 2 Duer, 460 ; 12 K Y. 289 ; Mead v. Northwestern Ins. Co., 7 N. Y. 530 ; De Hann v. Hartly, 1 Te.rm Rep. 345 ; Marshall on Insurance, 248 ; Lothian v. Henderson, 3 Bos. & Pul. 515; 1 Arnould on Ins. 580; 1 Phillips on Ins. 241. III. The warranty and condition here was that a certain act should not be done ; this engagement on the part of the assured was a condition precedent with the underwriter in entering upon the contract. The breach of this engagement discharges the insurer from the time of its occurrence. IY. The jury having found that the vessel used the forbid- den port, in violation of the warranty, this act cannot be treated NEW YOKE MAY, 1860. 15 Day v. The Orient Mutual Insurance Company. as a deviation. Had the jury not so found, however, it would still not be a deviation ; and if it were, would have discharged the insurer. (1.) A deviation cannot be predicated of a policy on time. Union Insurance Company v. Tysen, 3 Hill, 118. (2.) The permission to use Yera Cruz was an exception only from the warranty in relation to Yera Cruz, and left the war- ranty as to other ports and places in full force. Deviation is a violation of an " implied " condition. Here there was an " express " condition or warranty surrounding the permitted voyage, and the forbidden act must must be characterized by the latter. (3.) But, if it were a deviation, the underwriter was discharged from all liability on the policy subsequent to such deviation. Martin v. Delaware Ins. Co., 2 Washn. C. 0. 254 ; Elliot v. Wilson, 7 Br. Pr. Cases, 459 ; 1 Arnold, 349, cases there cited. Wright & Merrihew for respondents. I. This was a time policy not one for the voyage. See Union Ins. Co. v. Tysen, 3 Hill, 118. II. The deviation was temporary, and did not subsequently affect the risks insured against. See Hynds v. Schenectady Co. Ins. Co., 11 N. Y. 554 ; O'Neill v. Buffalo Fire Ins. Co., 3 N. Y. 122. III. The risk was temporarily suspended, and reattached on the return of the vessel in safety. Cowen's Philips on Ins. 734, 975, 989. IY. There was a waiver of this particular warranty by the subsequent agreement. BRADY, J. The policy upon which this action was brought was upon the schooner " Allie Day" for one year, from the 26th March, 1856, at noon, to March 26th, 1857, at noon. It contained a warranty as follows : " Warranted not to use ports or places in Texas except Galveston, nor foreign ports and places in the Gulf of Mexico." By a subsequent agreement, April 12, 1857, for the additional premium, of one per cent, permission was given to make a voyage from New Orleans to Yera Cruz. The schooner went to Yera Cruz, thence to Coat- zacoalcos, in the Gulf of Mexico, thence to Boston, and thence 16 COURT OF COMMON PLEAS. Day v. The Orient Mutual Insurance Company. to Apalachicola, where she belonged, and was there destroyed by a storm. The plaintiff claims to recover because the policy was a time policy, and the deviation occasioned by the voyage to Coatzacoalcos was only temporary, and did not subse- quently affect the risks insured against. For the first of these propositions we are referred to the case of The Union Ins. Co. v. Tysen, 3 Hill, 118 ; bat COWEN, J., states in the beginning of the opinion, "It is in the nature of the policy in question, that it limits the vessel to no geographical track. It is impos- sible, therefore, to make out a defence on the ground of a de- viation in the ordinary sense of the word." But assuming the policy in question to be a time policy, the geographical track is declared, and the voyage to Coatzacoalcos was a deviation and in violation of the warranty. The question which arises upon these facts is whether the defendants are discharged by the deviation. There was no necessity for the deviation. It was voluntary, and discharged the underwriters. Their dis- charge does not depend upon any supposed increase of risk, but wholly on the departure of the insured from the contract of insurance. The assured has no right to substitute a dif- ferent risk. 1 Phillips on Ins. 983 ; Robinson y. Marine Ins. Co., 2 Johns. Rep. 89 ; Huet v. The Phoenix Ins. Co., 7 Johns. Rep. 363 ; Robertson v. The Col. Ins. Co., 8 Johns. 491 ; Duncan v. Sun Fire Ins. Co., 6 Wend. 48 S ; Maryland Ins. Co. v. Le Roy, 7 Cranch, 26 ; Hentley v. Buggin, 2 Doug. 39 ; Child v. Sun Mut. Ins, Co., 3 Sandford, 26 ; Kettel v. Wiggin, 13 Mass. 68 ; Coffin v. Newburyport Mar. Ins. Co., 9 Mass. 436 ; 449. In the case of Robertson v. The Columbian Ins. Co., supra, the brig Ohio was insured from New York to the island of Teneriffe, and, for an additional premium of two per cent, per- mission was given to proceed from Teneriffe to the Isle of May and Bonavista, and at and from thence to return to New York. The vessel arrived safely at Teneriffe, but was refused per- mission to enter or land any part of her cargo until after per- forming a quarantine of forty days, because her bill of health was not certified by the Spanish Consul at New- York. The master, being unable to land her cargo, determined to seek another port, and went to Madeira, which was the nearest port, where he arrived, landed and sold the cargo. The vessel NEW YORK MAY, 1860. IT Day v. The Orient Mutual Insurance Company. afterwards proceeded to the Isle of May, and sailed from thence to New York. During her passage she met with very bad weather, which much injured her, and sustained further injury by striking on a shoal near Great Egg Harbor, and finally awived at New York. Per curiam; "There was no necessity for going from Teneriffe to Madeira. It was sailing on a different voyage from the one insured." " It was a vol- untary deviation from the voyage mentioned in the policy. Nothing but necessity or apprehension of danger could excuse his departure from the usual and direct route to Bonavista." The judgment should be reversed. HILTON, J. Coatzacoalcos was one of the prohibited ports mentioned in the policy, and the plaintiff in express terms warranted against its use. The voyage there was voluntary, after the defendants had positively refused permission to go, and had accompanied the refusal with an offer to cancel the policy and return the premium for the time unexpired, so that insurance miglit have been obtained elsewhere. But notwith- standing all this, the voyage was made, and there cannot be the slightest doubt that had the vessel been lost while absent upon it, the defendants would not have been answerable; and it is equally clear, both on principle and authority, that going upon it was a plain breach of the warranty contained in the policy, and put an end to the liability of the defendants as un- derwriters. Kettel v. Wiggin, 15 Mass. 68. In contracts of insurance a warranty is regarded as very much like a condition precedent, and which, if violated, avoids the policy, and no recovery can thereafter be had upon it. Mead v. Northwestern Ins. Co. 3 Selden, 530 ; Duncan v. Sun Fire Ins. Co., 6 Wend. 488; 49; Wtstfall v. Hudson Elver Fire Ins. Co., 2 Kern. 289. In the language of Mr. Justice Johnson, in Maryland Ins. Co. v. Le Roy (7 Cranch, 26), " The discharge of the underwriters from their liability in such cases depends not upon any supposed increase of risk, but wholly on the departure of the insured from the policy of in- surance." The law attaches no importance to the degree of such violation, or the consequences arising from it^ and its materiality or immateriality signifies nothing, the only qucs- 2 18 COURT OF COMMON PLEAS. Day v. The Orient Mutual Insurance Company. tion being as to the fact of the violation, and when that is shown a recovery is precluded. De Hahn v. Hardy, 1 Term R. 343 ; Kemble v. RKimlander, 3 John. Cases, 134 ; Phillips on Ins. 181; 211. From these views it follows that going to Coatzacoalcos be- ing a clear breach of the warranty, from that time the policy ceased to cover or protect the vessel, and her subsequent re- turn in no way revived or restored the defendants' original obligation as underwriters. Westfdll v. Hudson River Fire Ins. Co., 2 Dner, 490 ; 496. . I therefore concur with Judge Brady, that the defendants are entitled to judgment, and as the deviation is conceded, the judgment should be a final one in their favor. DALY, F. J., concurred. DAVID R. SMITH v. THOMAS R. FERRIS. A party is not concluded by everything he may have said or done, even under oath. The doctrine of estoppel is confined within just and rational limits and a party is not estopped unless he has gained some benefit or advantage >>y the act which is relied upon as an estoppel, or unless, by that act, the party claiming the benefit of the estoppel was induced to alter his con- dition. Thus, where the plaintiff filed notice of an ineffectual mechanic's Hen, wherein he swore that the contract was made with the contractor Held, that in an action against the owner, the plaintiff was not estopped from showing that such contract Was in reality made with the defendant, as owner. The record of a dismissal of the complaint between the same parties in another court, for the purpose of proving a former adjudication, is inadmis- sible in evidence, unless it is shown that such dismissal was a judicial do- termination of the same point in controversy here. To entitle a written contract between one of the parties and a third person to be admitted in evidence, its pertinency must be first shown. The defendant on the trial testified that he had had no other conversation NEW YORK MAY, 1860. 19 Smith v. Ferris. with the plaintiff, than that sworn to by him. He then put in evidence a cer- tain mechanics' lien proceeding, and rested. The plaintiff was recalled, and testified that he had had another conversation than that testified to by the defendant ; and then detailed such conversation relative to the mechanics' lien proceeding. The defendant offered himself as a witness to contradict the plaintiffs version of such conversation, which offer the justice refused. Held, error. The testimony proposed by the defendant was not to contradict his own previous testimony, but to obviate the effect of plaintiffs testimony as to the lien proceeding. A contractor failed to complete his contract, and the owner was compelled to complete the building. In an action by a sub-contractor against the owner for work and materials, for which a lien had been filed Held, that the defendant might prove on the trial what it had actually cost him to com- plete the building, for the purpose of showing that nothing was due to the contractor, and, consequently, nothing due to the plaintiff, as sub-contractor. APPEAL by the defendant from a judgment of the Fifth Dis- trict Court. The action was brought to recover for work, labor, and ma terials, done and furnished by the plaintiff to the defendant, at his special instance and request. The answer denied that the plaintiff did the work at the instance und request of the de- fendant, and alleged that the work was done, and materials furnished by the plaintiff, under a contract with one Gaylor, a contractor with the defendant ; and set up as separate defences 1st. A former judgment rendered in the Marine Court against the plaintiff in an action between the same parties for the same cause. 2d. An estoppel created by the filing of a mechanics' lien by plaintiff as a sub contractor, for the same demand, against Gaylor, the contractor. The case was tried before Justice Charles K. Smith and a jury. After the plaintiff had rested his case, and the defendant had adduced considerable evidence, among other things swearing that he had had but one conversation with the plain- tiff, lie put in evidence the mechanics' lien papers, which the plaintiff had tiled against Gaylor, the contractor, wherein, under oath, the plaintiff declared that the work and labor performed, and materials furnished, had been done in pursuance of a contract made by him with Gaylor as contractor, &c. Defendant then rested. 20 COURT OF COMMON PLEAS. Smith v. Ferris The plaintiff was re-called, and testified that the notice of lien was filed at the request of the defendant ; that defend- ant said to the plaintiff, that for his, defendant's, protection as against Gaylor, he wanted plaintiff first to put a lien on the building, against Gaylor as contractor, and defendant as own- er; that the plaintiff complied with this request, and filed the lien ; that after filing the lien, the defendant refused to pay the plaintiff, saying to him that by such filing he had pre- vented recovery against him, the defendant, and that he must get his money the best he could. The defendant offered himself as a witness to contradict the plaintiff's testimony as to such last conversation, which the justice refused. The defendant also offered himself as a wit- ness to prove how much it cost him to complete the contract- or's abandoned contract, and the justice refused the offer. The jury rendered a verdict for the plaintiff, and judgment was entered accordingly. Defendant now appeals to this Court. Samuel Jones for appellant. John S. Parsons (Man & Parsons) for respondent. BY THE COITRT. DALY, F. J.- The plaintiff was not estopped by the affidavit tiled with the notice of lien, from proving the fact to be otherwise than as stated in the affidavit. The King v. Clark, 8 T. R. 220 ; Hart v. Newman, 3 Camp. 13 ; Gilles v. Watson, 2 Stark K. 453 '; Hearn v. Rogers, 9 B. & C. 577 ; Boileau v. Rutlin, 2 Excheq. 665 ; Ring v. Franklin, 2 Hall, 1 ; Wesion v. Perriman, I Mason, 306. A party is not con- cluded by every thing he may have said or done, even under oath. The doctrine of estoppel, to prevent the abuses or in- justice that might otherwise arise, is confined within just and rational limits, and a party is not estopped unless he has gained some benefit or advantage by the act which is relied upon as an estoppel (freeman v. Walker, 6 Greenleaf R. 68), or unless by that act, the party claiming the benefit of the estoppel was induced to alter his condition. 1 Greenleaf's Ev. 27, 207. The plaintiff obtained no benefit or advantage 07 the filing and service of the notice of lien, as there was nothing, from the defendant's own showing, to which it could attach, and it did not appear that the defendant acted upon, or was in NEW YORK MAT, 1860. 21 Smith v. Ferris. any way prejudiced by the proceeding. The affidavit, as the sworn statement of the plaintiff, was, as an admission, of very great weight, but it was not conclusive against him by way of estoppel. In the case to which we are referred, (Butler v. Miller^ 1 Comst. 503) the estoppel lay in the judicial determi- nation of a proceeding to which the plaintiff, the sheriff, and the other execution creditors were parties. As the plaintiff moved the Court to compdl the sheriff to apply the proceeds of the sale v of the property to their execution, and the Court having adjudged that the sheriff should pay it to the other ex- ecution creditors, the plaintiff was estopped from claiming the property from the sheriff as mortgagees and so in this case, if there had been a judgment in the lien proceedings, that judgment might be invoked by the defendant, by way of estoppel. The record of the dismissal of the complaint between the same parties in the Marine Court, was inadmissible unless tho defendant was prepared to show that that dismissal was a judi- cial determination of the same point that was in controversy here (Morewood v. Out.rarn, 3 East, 346), and his offer did not go that length. He offered to prove that the complaint was dismissed after the defendant had given evidence and had rested his case. But this was not enough. For all that ap- peared in such an offor, the suit may have related to a totally different matter. When the contract between Gaylor and the defendant was offered, there was nothing to show its pertinency. It was inter alias acta. Wlun the lien proceeding was shown, it might, in connection with the plaintiff's affidavit, have been admissible, but the offer was n<>t then renewed. The judgment must be reversed for another reason, but I have passed upon these questions as they may arise again, if the plaintiff should renew his suit. After the lieu proceedings were given in evidence, which was certainly evidence of the strongest kind against the claim which the plaintiff set up, the plaintiff and another witness were allowed to show that the defendant told the plaintiff to put on a lien against him as owner, and Gaylor as contractor ; that as soon as he had done that, he would pay him the next day ; but that when he hand- ed the defendant the copy of the notice of lien, he told him 22 COUKT OF COMMON PLEAS. ' Smith v. Ferris. that if there were forty thousand of them, they would not get a cent. When this testimony was given, the defendant offered himself as a witness to contradict what was there sworn to by the plaintiff and the witness Sherwood ; but the justice, for what reason it would be difficult to conceive, refused to allow him to testify. It was suggested on the argument that the tes- timony proposed to be given by the defendant was not rebut- ting, as the defendant had previously sworn that he had no other conversation with the plaintiff than the one testified to by himself and the witnesses Fraser and Weeks, and that the conversation about the lien was not therefore rebutting to the plaintiff's testimony. But this testimony on the part of the defendant was necessary only after the lien proceedings were put in evidence, and it was given not to contradict the previ- ous testimony of the defendant, but to obviate the effect of the plaintiff's affidavit. In that affidavit, he had sworn that the claim for which he now brought the action, was against the defendant as owner, and Gaylor as contractor, on account of workidone and materials furnished, in pursuance of a contract made with Gaylor, which was directly in conflict with what he had previously sworn to, to maintain this action against the defendant. It was testimony therefore given to sustain his own case, and testimony of a very suspicious and dangerous character. It was admitting that he had deliberately sworn to what he knew to be false, upon the promise of the defendant to pay him whereas, if he had, as he testified upon the trial, made his contract with the defendant, there was no occa- sion to rely upon such a promise, as he could put on a lien against the defendant at once, and thereby secure his debt. There was his own uncontradicted statement to the defendant, and the witnesses Fraser and Weeks, that he did not like to do the work for Gaylor, as he did not think he got money enough, but if the defendant would secure him upon the last payment, he would like to do the work and put on a lien and the uncontradicted statement of the defendant that that pay- ment never became due, as Gaylor abandoned the work, and the defendant had to complete the building himself. The plaintiff moreover was supported in the account he gave of the conversation about the lien, by a witness standing precisely in the same position as himself, claiming to have filed a lien at NEW YORK MAY, 1860. 23 Baker v. Bourcicault. the defendant's inducement, as the plaintiff had done, when his contract in fact was made with the defendant. As the justice would not allow the defendant to show what it actually cost him to complete the building, and afterwards refused to allow him to contradict the statements of the plaintiff and Sherwood, his position before the jury was seriously preju- diced, and great injustice was done him. The judgment should be reversed. PETER C. BAKES AND DANIEL GODWIN v. DION BOUKCICAULT. It is a general principle that when goods are ordered to be sent by a carrier, a delivery to the carrier operates as a delivery to the purchaser, in. whom the title immediately vests, subject to the vendor's right of stoppage in t ransitu ; and the goods, in the course of transit, are at the risk of the pur- chaser. But where it is apparent, from the circumstances under which the delivery was made, that the vendor did not trust to the ability or readiness of the purchaser to perform his contract, and intended to insist upon strict pre- payment as a condition of delivery by the carrier Held, that such delivery by the vendor to the carrier, is not within the general rule, and does not operate to pass title. The defendant ordered certain goods of the plaintiffs, and left it at their option whether he should send the amount of their bill by return of post, or whether it should be collected by the express company, on delivery. The plaintiffs sent the goods, by express company, with directions to collect upon delivery. The vessel by which the goods were shipped was lost at sea Held, 1. That payment and delivery were intended to be simultaneous acts, and until such payment and delivery, the title remained in the vendor, the contract being merely executory. 2. That, consequently, the goods were, while in the course of transit, at the risk of the vendor ; and, being lost, no action would lie against the vendee for the contract price. 8 It makes no difference that the goods were sent by a particular carrier named by the vendee. By such delivvy and instructions to the carrier, the yendor made him his own agent 24: COUKT OF COMMON PLEAS. Baker v. Bourcicault. APPEAL by defendant from a judgment of the Marine Court at General Term. The defendant, who was the proprietor of the Goiety Thea- tre, at New Orleans, wrote to the plaintiffs from Louisville, Ky., ordering them to print, frame, and glaze a certain num- ber of cards, and directed that they should be dispatched by the earliest express to him at New Orleans, adding, u I will either send you back the amount by return of post, or the ex- press may collect the same for you, at your option ;" the de- fendant to be advised of the departure of the cards by letter. The plaintiffs delivered the cards to Adams Express Com- pany, with a bill, and directions 1o collect the bill on delivery. The direction on the goods was, "Dion Bourcicault, Gaiety The- atre, New Orleans, La. C. O. D." The goods were sent by the steamer Crescent City, Dec. 3, 1855 ; the steamer was lost at sea; the defendant never received the cards. The plaintiffs testified on the trial that they complied with the direction of the order by writing to the defendant, enclos- ing their bill. Defendant testified that he never received such letter or bill. Defendant's counsel asked the Court to decide that the plain- tiffs were not entitled to recover 1st. Because they had not, in point of time, complied with the direction of the order, but had taken too much time in the execution of the order. 2d. Because the goods, at the time of their loss on the Crescent City, were at the risk of plaintiffs were their property, and had never been delivered to the defendant, so as to place them at his risk, and the goods delivered, having been lost before such a delivery to the defendant, and whilst they were at the risk of and the property of the plaintiffs, the loss was the plaintiffs', and they ^fcle not entitled to recover anything on account thereof from the defendant. The Court refused so to decide, but rendered judgment for the plaintiffs for $172.89, to which decision the defendant ex- cepted. Henry A. C/'am for appellant. I. The delivery to the Express Company of the goods, and a bill with directions not to deliver to the defendant until payment of the bill, did not pass the title, but the goods remained the NEW YOKE MAY, 1860. 25 Bilker v. Bourcicault. property of and at the risk of the plaintiffs ; the Express Com- pany were the agents of the plaintiffs, and not of the defend- ant. In People v. Haynes (14 Wend. 546), the carrier had been designated by the purchaser, and there was no appointment of the carrier, the agent of the seller, or direction to the carrier not to deliver until the bill was paid ; and the purchaser was personally present, and received and accepted the goods. These are vital distinctions, and in that case, the Chancellor laid down the position that the seller, having the right of stoppage in transitu, could have reinvested themselves with the title to the goods by a notice to the carrier ; it follows, plainly, that the notice given in this case, at the time of delivery, to the carrier would have a similar effect. See Newcomb v. Cramer, 9 Barb. 402 ; and Jones v. Bradner, 10 Barb. 193 ; Story on Sales, 223 to 238, 302, 305, and 315. II. Independent of the last point, the title would not pass until a bill was sent by letter to the defendant, that being one of the express conditions of the order. Benjamin Vaughan Abbott (Abbott Brothers) for respon- dents. I. The action is not for goods sold and delivered, but for labor and materials furnished. The plaintiffs were employed to perform the labor of printing the cards, they furnishing the requisite materials, of packing them, and of putting them on board the Express. On proof that these services were fully performed, they were entitled to recover as for labor and ma- terials. Sewall v. Fitch, 8 Cow. 215 : Itobertson v. Vaughn, 5 Sandf. 1 ; and see Bronson v. Wiman, ]0 Barb. 406, aflTd 4 Seld. 182 ; Crookshank v. Burrell, 18 Johns, 58. And al- though in such case, if there is a tender of the goods to the defendant in person, and t refusal to receive, the plaintiff must, perhaps, declare ou the refusal to accept ; yet if the defendant has directed the goods to be sent to him by a carrier, delivery to the currier is sufficient to satisfy the contract, and to charge defendant. Downer v. Thompson, 2 Hill, 137 \ Hague v. Porter, 3 Hill, 141. II. Even regarding the contract as one for the sale of goods, still they were at defendant's risk after delivery to the 26 COUKT OF COMMON PLEAS. Baker v. Bourcicault. Express. The rule is well settled, that where goods sold are to be forwarded by a carrier, delivery to the carrier is equivalent to a delivery to the purchaser ; and the property, with the corres- pondent ri*k, immediately vests in the purchaser, subject to the vendor's right of stoppage in transit. People v. TIaynes, 14 Wend. f>46 ; Dutton v. Sdomonson, 3 Bos. & P. 582 ; Vale v. Bayle, Cowp. 294 ; Cooke v. Ludlow, 5 Bos. & P., 119 ; Richardson v. Dunn, 1 Gale & D. 417 ; Studdy v. Saunders, 5 Barn. & Cress. 628, S. C. 8 Dowl. & R. 403 ; Tarling v. Bagster, 6 Barn. & C. 360 ; S. C. 8 .Dowl. & R. 282 ; King v. Meredith, 2 Campb. 639 ; Benedict v. Field, 16 N. Y. 599 ; 1 Parsons on Contr. 445 ; 2 Kent's Comm. 645. III. The cases cited by f defendant, Van Nest v. Conover, 8 Barb. 509 ; Newcomb v. Cramer, 9 Id. 402 ; Jones v. Brad- ner, 10 Id. 193 ; as showing that the property does not pass by delivery to a carrier, are neither of them in point. They are cases in which the vendor's right of lien or stoppage was asserted and sustained, notwithstanding the delivery to the carrier ; not cases in which the property was held at vendor's risk while in transit. BY THE COURT. DALY, F. J. The defendant informed the plaintiffs that he would send back the amount of their bill by return of post, or the Express Company might collect it, at their option. The plaintiffs sent the box containing the cards to the Express Company, with directions to collect the bill on delivery. It is to be implied from such a direction that no credit had been given, and that the goods were to be paid for on delivery. The direction was understood by the Express Company as an instruction to them not to deliver the goods unless the bill was paid. The agent of the Express Company, who received the box and gave a receipt for it, testified that when they receive goods in that way, they do not deliver them unless the bill is paid. The receipt'was for a box and a bill, and had written upon it, in the handwriting of the witness, the initials C. O. D., the meaning of which, he testified, was, " col- lect on delivery." When goods are sent in this way, to be paid for in cash, pay- ment and delivery are simultaneous acts, and though the pro- perty be delivered, no title passes, unless it is apparent from the circumstances under which the delivery was made, that NEW YORK MAY, 1860. 27 Baker v. Bourcicault. the vendor meant to trust to the ability and readiness of the vendee to perform his agreement, and did not intend to insist upon strict payment as a condition precedent to the passing of the title. Unless immediate payment is thus waived, the ven- dor may, by an action for a wrongful detention, reclaim the property, as his title in it is not divested until payment. This rule, the soundness of which has been questioned per Story, J. in Connyer v. Ennis, 2 Mason, 236, is now settled to be the law in this State, (Russell v. Minor, 22 Wend. 659 ; Lupin v. Marie, 6 id. 77 ; Chapman v. Lathrop, 6 Cow. 115 ; Keeler v. field, 1 Paige, 312 ; Haggerty v. Palmer, 6 John. 0. R. 437 ; Palmer v. Hand, 13 Johns. E. 434) and it is de- cisive upon the question arising in this case. There is nothing to show that the plaintiffs intended to waive payment as a condition precedent to the transfer of the title in the goods to the defendant, but on the contrary, the circumstances of the case, I think, repel such a presumption. The defendant left it at their option whether he should send back the amount of their bill by return of post, or whether it should be collected by the Express Company. They chose the latter, and directed the Express Company to collect it upon delivery. This was certainly not indicating any intention to trust to the ability and readiness of the defendant but if any thing is inferrable from it, it is the contrary. The Express Company understood it as a direction to them not to deliver unless the cash was paid ; and had the goods reached New- Orleans, they would have kept them as the property of the plaintiffs. The Express Company would have had no author- ity to deliver the goods relying upon the ability of the de- fendant, and waiving payment or, if they had delivered the box to him, to enable him to examine the contents, to see if his order had been properly executed, they, or certainly the plaintiffs, conld have reckuined it, if the defendant had failed to pay the bill when it was demanded. In GoodnH v. Skilton, (2 II. Bl. 316), the plaintiff agreed to sell a quantity of wool to the defendant. Earnest was paid, rendering the contract valid under the statute of frauds. The wool was packed in the de- fendant's sacks and left upon the plaintiff's premises, the de- fendant agreeing to send his wngon for it in a few days. The defendant did not take the wool, and the plaintiff brought an 28 COURT OF COMMON PLEAS. Baker v. Bourcicault. action for goods sold and delivered; but as it appeared that the plaintiff had told the defendant's servant, while he was engaged in weighing and packing the wool, upon the la tier's proposing to fix the time when the wagon should come, that the wool should not go off his premises until he had the money for it, the Court held that the action would not lie, the plain- tiff having retained his right over the wool, and there being no right to it in the defendant. The numerous cases cited by the respondent, (People v. Haynes, 14 Wend. 546 ; Dutlon v. Solomonson, 3 Bos. & Pul. 582 ; Cooke v. Ludlow, 5 id. 119 ; Vale v. Bayle, Cowp. 294 ; Studdy v. Saunders, 5 B. & C. 628; Tailing v. Baxter, 6 id. 360 ; Richardson v. Dunn, IT. & D. 417; King v. Meredith, 2 Camp. 639) merely establish the general principle, that when goods are ordered to be sent by a carrier, a delivery to the carrier operates as a delivery tor the purchaser, in whom the property immediately vests, subject to the vendor's right of stoppage in transitu, and the goods, in the course of their transit, are at the risk of the purchaser. But every general rule has its qualifications. In none of these cases does it appear that the goods were to be paid for in cash upon delivery, and that makes a very material difference, as it shows, unless the contrary is indicated, that the property is not >to pass until payment has been made. Up to the time when payment and delivery are to be simultaneous acts, the contract is in its nature executory, and the title to the proper- ty is in the vendor. Benedict v. Field, 16 N. Y. 596. It makes no difference that the goods have been sent by a par- ticular carrier named by the vendee, if the carrier is instruct- ed by the vendor that the goods are to be paid for on deliv- ery. In such a case the carrier becomes the agent of the ven- dor, and has a claim upon him for the expense of the carriage and safe keeping of the goods, if the vendee refuse to pay on delivery. Such was the relation of the parties in this suit, when the box was lost by the loss of the vessel in which it was shipped, on her way to New Orleans. The title to the goods had not passed to the defendant, and the judgment of the Court below was erroneous. Judgment reversed. HILTON, J. concurred. BRADY, J. concurred. NEW YOKEMAY, 1860. 29 Lester v. Christalar. ANDREW LESTER v. ALEXANDER M. CHRISTALAR. The insolvent laws of a State cannot affect a creditor residing out of the State, at the time of the application for the discharge, who does not participate in the proceedings under such laws, even though his debt be a judgment re- covered within such State. And a resident of this State, by an assignment to him of such judgment, after that discharge, acquires a valid and subsisting interest, which is not affected by the discharge. Whether a judgment recovered in this State is a contract made or to be exe- cuted in this State within the meaning of the insolvent law Query. The facts appear from the opinion of the Court. BY THE COURT. DALY, F. J. "When the judgment was re- versed, Kirkland, Mansfield & Hall, the plaintiffs, were non- residents of this State, and at the time of the first publication of the defendant's application to be discharged from his debts as an insolvent, Mansfield was dead, Kirkland was a resident of the State of Ohio, and Hall was a resident of the State of Pennsj'lvania, and neither of the plaintiffs in the judgment united with the defendant in his application for a discharge, nor did either of them accept any dividend from his estate. The statute declares that the discharge shall exonerate the in- solvent from debts founded upon contracts made within or to be executed within the State, or debts owing to persons resi- dent within the State at the time of the first publication of the notice of the insolvent's application, or persons not residing within tin's State who have united in his petition or who shall accept a dividend from his estate. As the plaintiffs in the judgment did not reside in this State nor unite in the defendant's petition, nor accept any dividend from his estate, it is very clear that they are not embraced in either of these three latter provisions. It is suggested, how- ever, that the judgment was a contract made within or to be executed within this State, and that it comes within the pre- vious provisions. It does not appear for what the judgment was rendered, and we cannot say whether the debt or obliga- tion which the law implies from the existence of the judgment had its foundation in contract or not. In a certain sense a 30 COURT OF COMMON PLEAS. Lester v. Christalar. judgment is to be deemed a contract. " "Whatever," says Blackstone, " the law orders any one to pay, that becomes in- stantly a debt which he hath beforehand contracted to dis- charge." 3 Bl. Com. 158. I think it is at least very doubtful whether the contract implied from the existence of a judg- ment, is contemplated by t!ie statute when it refers to a con- tract made or to be executed in this State. But it is not ne- cessary to pass upon that question, for the defendant's dis- charge would not affect a debt due to persons who were not residents of this State, when he made his application and ob- tained his discharge. It is now well settled that the insolvent laws of a State have no extra territorial effect, and will not operate to discharge a debt due to creditors who are not with- in its jurisdiction, unless they participated in the proceedings, either by uniting in the application for the insolvent's dis- charge, or by accepting a dividend from his estate. Ogden v. Sounders, 12 Wheaton, 213; Sturges v. Crowningstdeld, 4 id. 122 ; McMillan v. McNeill, 4 id. 209 ; Hinckley v. Mareau, 5 Mason, 80 ; Clap v. Smith, 3 Peters, 411 ; Boyle v. Zacha- rue, 6 id. 348 ; Clay v. Moffat, 5 How. 295. The fact that Kirkland, Mansfield & Hill resorted to the Courts of this State, and obtained a judgment upon their claims against the defendant, was not such a submission or assent to the jurisdic- ti6n of this State as to entitle it to release, by a discharge un- der its insolvent laws, the debt or obligation created by the judgment. This point was expressly determined in Watson v. Bourne, 10 Mass. 337. Justice Johnson, in Ogden v. Saun- ders, supra, questioned the soundness of this decision, and thought that there was little doubt but that the decision was wrong; but the same question came up for adjudication in this Court in Donnelly v. Corbett, afterwards affirmed in the Court of Appeals, 3 Seld. 500 ; and though great respect was- due to the doubts expressed by so eminent a Judge as Justice Johnson, this Court after mature deliberation, decided in con- formity with the decision of the Supreme Court of Massachu- setts. The point was directly involved, and the conclusion we arrived at was essential to support the judgment we rendered. The plaintiff, a resident of this State, sued the defendant Cor- bett, a resident of South Carolina, in tlie Courts of. South Car- olina, upon a contract made in this State, but which was to be NEW YOEK MAY, 1860. 31 Lester v. Christalar. performed in South Carolina. Having obtained a judgment, a ca. sa. was issued, upon which Corbett was imprisoned and while in custody, he petitioned, as debtors charged in execu- tion are entitled to do by the laws of that State, for a general discharge from his debts, upon his surrendering up all his pro- perty for the benefit of his creditors, which discharge was granted. The plaintiff afterwards attached property belong- ing to Corbett in this State, and upon a bond given by him to release the attachment, an action was brought in this Court. We held that the discharge under the insolvent laws of South Carolina was no answer to the action ; that so far as these laws discharged? him from imprisonment, they affected the rem- edy only and were valid, but that so far as they undertook to release or discharge the debt they were unconstitutional and void, and that no assent on the part of the plaintiff to the in- solvent law of South Carolina, nor waiver of his constitutional immunity, could be implied from his bringing an action in that State, to enforce the payment of his debt. Upon all these pro- positions, the judgment of this Court was sustained by the Court of Appeals. The decision of Justice Bronson in the case of Parkinson v. Scovill (19 Wend. 150), to which our attention has been called, was before us when our decision was rendered, but we declined to follow it, as it was in conflict with the de- cision of the Supreme Court of the United States. In Don- nelly v. Corbett, the debt was contracted in this State, so that the only distinction between that case and the present is that then the insolvent's discharge of another State was pleaded in bar, while here the discharge was granted under the laws of our State ; but that makes no difference. It was ex- pressly decided in Clay v. Moffatt (5 How. 295), that where the Courts of the United States have declared a State law to be in conflict with the Constitution, and therefor declared void, the State tribunals are bound to conform to such decision ; that an insolvent law which comes within this category cannot be pleaded as a discharge, even in the forum of the State which enacted it, for that a State cannot inflict its insolvent laws on contracts and persons not within its limits. As the judgment remained iff full force, and had never been released by the discharge granted to the defendant, the plain- tiff in this action, though a citizen of this State, could and did 32 COUKT OF COMMON PLEAS. Myer v. Jacobs. acquire by the assignment, a valid and subsisting interest in it. This disposes of all the questions that have been discussed. The report of the referee should be affirmed. . THEODORE A. MYER v. ABRAHAM S. JACOBS. In general, a factor has a lien for his general balance on the property of his principal coming into his hands. A commission merchant advanced money to his principal on his indorsement, and charged the note, upon which the advance was made, in his general account Held, that the mere charging of the note to the principal did not entitle the latter to its possession. The agent had a right to retain it as his principal's property, until he was paid the balance of his general account arising in the course of their dealings. APPEAL by the defendant from a judgment in the Third Dis- trict Court. The facts are fully stated in the opinion of the Court. E. A. UAmoureux for appellant. Cornelius A. Runlde for respondent. BY THE COURT. HILTON, J. It appears that the plaintiff employed the defendant to sell merchandise consigned to him, upon commission. During this employment, the defendant advanced to the plaintiff the amount of the note in respect to which this action is brought. The note was indorsed by the plaintiff, and, not being paid at maturity, it was with his appa- rent assent certainly without objection on his part charged to their general account. The plaintiff insists that thus charging the note to him, made it his property, and he was entitled to it without reference to the state of their account ; while on the contrary, the defend- ant claims that he has a right to retain the note until he is paid the general balance due him from the plaintiff. The Justice seems to have regarded the charging of the YORK MAY, 1860. Myer v. Jacobs. note to the plaintiff as entitling him to its possession, and therefore ruled out all evidence showing that there was an actual balance of accounts admitted by the plaintiff to be due to the defendant, arising out of his factorage, and also that the defendant offered to deliver up the note upon being paid this balance. This was erroneous. The defendant as agent or factor had a lien upon the note, and also on the judgment which seems to have been upon it. These constituted property which came into his hands in the course of his dealings with the plaintiff, and which he was entitled to retain until he was paid the bal- ance of his general account arising in the course of those deal- ings. Rnizer v. Wilcox, Amb. 252 ; Godin y. London Assur- ance Co., 1 Burr, 494 ; 2 Kent. Com. 640 ; Knapp v. Alvord, 10 Paige, 205 ; Bruce v. Brooks, 26 Wend. 367 ; Parson's Mercantile Law, 161 ; 1 Parsons on Contracts, 84; Walker v. Birch, 6 Term R. 262. In the latter case, Lord Kenyon said,. " There is no doubt, and, indeed, the point has been so long settled, that it ought not now to be brought into dispute, but that, in general, a factor has a lien for his general balance on the property of his principal coming into his hands ;" and in 1 Burr. 494 (supra}, Lord Mansfield held that this lien at- tached to a policy of insurance in the hands of a factor, upon goods consigned to him by his principal. Here, the account shows that the balance -which' the defend- ant claims was caused by charging the note in it, and yet the plaintiff seeks by this action to have the benefits- of tho' charge, while he refuses to pay the balance which it creates. Tlus he should not be permitted to do. Judgment reversed 34 COUKT OF COMMON PLEAS. Dean v. Cannon. WILLIAM H. DEAN v. GEOKGE L. CANNON. The statute is imperative, that when it appears upon the trial, in a District Court, that the plaintiff is not a resident, and has filed no security, the com- plaint must be dismissed. And it does not alter the rule, that the fact of non-residence and failure to file security appear, for the first time, upon a new trial, ordered by the appellate Court. An order for a new trial imposes no duty on the Court below, inconsistent with, or restrictive of, any of its powers. The. case is to be heard and de- cided, on a new trial, in the same manner as if the trial were an original one. APPEAL by defendant from a judgment rendered in the First District Court. The plaintiff brought action against the defendant as indorser of a bill of exchange. On the return day mentioned in the summons, the defendant did not appear, and plaintiff took judgment by default for amount claimed, interest and costs. The defendant appealed to the Court of Common Pleas ; the j udgrnent was reversed, and it was ordered that " a new trial be had before the Justice of the First Judicial District Court, on the 19th day of February, 1859, at 10 o'clock, A.M." In pursuance of such order, the cause came on for trial before such justice and a jury. Plaintiff's counsel admitted that the plaintiff was a non-resident, and had not, filed security for costs. The defendant's counsel thereupon moved for a dismissal of the complaint. The Justice denied the motion, on the ground that the case was before him in pursuance of the order of the Court of Com- mon Pleas. The jury, after being charged by the Justice, among other things, that the plaintiff was properly in Court, returned with a verdict for the plaintiff. The defendant then appealed to this Court. NEW YOKE MAY, 1860. 35 Caiy v. Thompson. Pike dk Galpin for appellants. Tyler & Brown for respondents. BRADY, J. The judgment must be reversed. The plaintiff was a non-resident, and did not file security for costs. Hallen- \eck v. Gillies, 7 Abb. Pr. Kep. 421. The Justice declined to dismiss the action on the ground that the cause was sent back by this Court for a new trial, seeming to regard it as a duty to dispose of the case on its merits tor that reason. A new trial was ordered by this Court, because the defendant failed to appear, and alleged a defence on the merits. The order for a new trial imposed no duty up- on the Court below, inconsistent with or restrictive of any of its powers. The case was to be heard and decided, although it was sent back, in the same manner as though it had been an original one. The statute is imperative. When it appears at the trial that the plaintiff is not a resident, and has not given se- curity (Hallenbeck v. Gillies, supra), the Justice must dismiss the complaint. These facts did not appear at the trial, and were not controlled in their legal effect by any order of this Court. Judgment reversed. JOHN G. CAET v. MAJOB THOMPSON. A conveyance, in general terms, of a bouse, passes everything that belongs to the house with it, and whether a thing is parcel or not, of the thing demised, is always matter of evidence. The plaintiff, by a sealed lease, rented to defendant two houses, describing them as " NOB. 162 and 164 Seventh Avenue" Held, that parol evidence was admissible to show that a certain rear yard or lot passed with the demise of the two houses. As a general rule, parol evidence is always admissible to ascertain the nature and qualities of the subject to which an instrument refers. 36 COUKT OF COMMON PLEAS. Cary v. Thompson. And when evidence was excluded which tended to show that it was the under- standing of both parties, when the lease was executed, that the second or rear yards were intended to be, and were embraced in it Held, error, and a new trial will be ordered. APPEAL by plaintiff from a judgment of non-suit, entered at Special Term, by Judge BEADY. The plaintiff, in his complaint, alleged the leasing to him by the defendant lor a term of three years, two houses in Seventh Avenue, New York City, with the yards, premises and appurte- nances, and that the defendant (the lessor) in the mouth of June, 1857, while plaintiff was in possession, "wrongfully, unlawfully, and without the consent of the plaintiff, and against his wish, entered upon a part of said premises and wrongfully and un- lawfully took and converted about twenty feet deep from the rear part of said two yards to his, the defendant's, own use, and without the consent of the plaintiff, and still so retains the same. And also then and there wrongfully took and carried away, and converted to his own use certain sheds, woodhouses, and outhouses belonging to the said plaintiff, and situated upon said premises, of the value of about fifty dollars, and in- jured the privies and other outhouses belonging to the said plaintiffs said premises, all without the consent and against the wish of the plaintiff." The defendant, in his answer, denied that the part of the yards so taken possession of by him was embraced in the lease, or that he .had ever leased them to plaintiff. Qn the trial, the counsel for the plaintiff proposed and of- fered to prove " that the plaintiff before he leased the premi- ses of the defendant, and about the first of April, 1856, exam- ined said premises and yards in company with said defendant, and that said defendant then and there pointed out the wood- houses in the second or rear yard aforesaid, as the place used by the tenants and occupants of the dwelling houses de- scribed in the aforesaid lease, as and for their woodhouses and as the yards used by said tenants and occupants of said dwell- ing houses for hanging up and drying their clothes." The defendant objected, and the Court sustained the objec- tion, and excluded the testimony. NEW YORK MAY, 1860. 37 Gary v. Thompson. The counsel for the plain tiff then proposed to prove that in the month of June, 1857, the defendant took possession of both of said rear yards, and tore down all of said woodhouses, and kept the possession of said rear yards to himself wholly from that time down to the time of the commencement of this ac- tion. f The defendant's counsel objected, and the Court sustained the objection. On motion, the Court non-suited the plaintiff, and dismissed his complaint. The plaintiff appealed to the general term. John C. Dimmick, for appellant, contended that the testi- mony offered by the plaintiff should have been admitted, and cited Greenleaf on Eo. 286 ; Freeland v. Bart, 1 T. R. 701 ; Bacon's Abr Tit. Grant. Andrew Boardman for respondent. I. The word house, in its most comprehensive signification, means a residence, and whatever is adjoining thereto, enclosed in the same fence ; that is, the dwelling-house and curtilage. Daniel v. Coulxting, 7 Manning & Granger, 125 ; Chitty^s Gen- eral Practice, 175 ; 2 Hill'iard's Real Property, 543. In this case, the houses were designated by numbers 162 and 164 Seventh avenue. The plot of land in dispute was an open space in the rear of houses 162, 164 and 166, into which there was an opening from each yard attached to those houses. That space could not be assigned as part of any one of the lots known by those numbers, nor of any two of them. If it was appurtenant to any, it was appurtenant to all ; but the houses let to the plaintiff were let to him exclusively ; nothing used or to be used in common with others was included in the lease. It is clear, therefore, that this open space was not let to him. II. The written instrument being free from ambiguity, pa- rol evidence of its meaning was inadmissible. BY THE COCKT. DALY, F. J. I think the evidence ex- cluded was competent. The lease was of the two house* known as Kos. 162 and 164 Seventh avenue. It is said in Bacon's 38 COURT OF COMMON PLEAS. Cary v. Thompson. Abridgment (Title Grant, 1, 3), that the grant of a house pas- ses the curtilage, and a curtilage is a court yard, back side, or piece of ground laying near, belonging to a dwelling-honse (Tomlim's Law Dictionary), and in Garden v. Tuck (Cro. Eliz. 89), it was held that in the devise of a messuage, the gar- den and curtilage passed. The question in the present case was whether the back yard or rear part of the lot passed with the demise of the two houses. Three houses were erected by the defendant on the two lots. They were what is termed, in this City, tenement houses, and the plaintiff leased the two southerly ones. In the rear of each of the houses was a small yard, extending back about twelve feet, and running across the whole width of each lot, and in the rear of this again was an- other yard, extending back about twenty feet, and extending across the width of the lots. In the first yards the privies were placed ; in the second, there were woodhouses and posts for clothes lines, and there was an open entrance or passage way between the first and second yards. The plaintiff offered to show that before he leased the premises, the defendant pointed out to him the woodhouses in the second yard as used by the tenants or occupants of the houses which he afterwards leased ; that after he took possession, he repaired the woodhouses ; that the defendant saw him making the repairs, and that he asked the defendant to make him some allowance, which the defend- ant declined, saying, that the woodhouses would not be of much value at the end of the plaintiff's lease, which was for three years, with the privilege of a renewal. The plaintiff also offered to show that thirteen months after the demise, the de- fendant took possession of the rear yards, tore down the woodhouses, and kept possession of them wholly from that time. All that was thus offered was excluded, and the plain- tiff's complaint was dismissed. The evidence was competent to show what was intended to pass by the demise of the houses. In a conveyance like this, in general terms, of a house, every thing that belongs to it passes with it, and whether a thing is u parcel or not of the thing demised, is," says Buller, J., in Doe v. Burt (1 T. R. 704), " always matter of evidence ;" and in that case parol evidence was admitted, to show that the pai- ties could not have intended to embrace in the lease, a cellar situated under the yard which was demised. As a general NEW YORK MAY, I860. 39 Wells v. De Leyer. rule, parol evidence is always admissible in order to ascertain the nature and qualities of the subject to which an instrument refers (Crreenleaf's Emdence, 286). The evidence excluded tended to show that it was the understanding of both parties, when the lease was executed, that the second or' rear yards in which the wood houses were placed, were intended to be, and were, embraced in it ; and if such was the fact, the defendant was a trespasser, and the action was well brought. Judgment reversed and new trial ordered ; costs to abide event. BENJAMIN W. WELLS, Administrator, doc. v. ANTHONY DE LEYER. Where a lease contains a covenant for renewal upon a rent to be fixed by ar- bitrators, and the covenant is silent as to the time when such arbitrators shall be appointed, the covenant will be construed to mean that they shall be appointed a reasonable time before the expiration of the lease. A lessee, under such a covenant, having been notified that the lessor had ap- pointed an abitrator, and been required to appoint one on his own behalf, before the expiration of the lease, and having failed to do so,has, at the option of the lessor, waived his right to such renewal ; and the landlord having given the lessee notice that he should require him to pay a rent of $200 this was held a new letting from year to year, and not a renewal of the for- mer lease. 4 THIS was an appeal from a judgment of this Court, entered upon a decision of Judge Brady, without a jury. The complaint set up damages for the unlawful ejectment of the plaintiff from certain premises owned by the plaintiffs intestate in fee. The defendant answered, justifying the eviction under a lease from the plaintiff to West & Halsey, for four years and four months from the 1st day of January, 1851, with a covenant for three renewals for the term of five years upon a rent to be agreed upon by the lessor and lessee, or, in case of disagreement, by ar- bitrators, one to be chosen by each, and a third, if necessary, 40 COUKT OF COMMON PLEAS. Wells v. De Leyer. by the arbitrators ; and that the lessees had paid the rent re- served that the plaintiff had evicted the defendant for non- payment of rent, notwithstanding the defendant had always been willing and ready to pay such rent. That the lessees had tendered a lease to plaintiff, from the 1st of May, 1855, to 1st May, 1860, and named an arbitrator as required by the cov- enant in the lease, but that the plaintiff had refused to execute euch lease. The plaintiff replied, admitting the lease, but set- ting up that no arbitrator had been appointed by the defendant before the termination of the first lease, though he had notified them, and requested them so to do, and that the lessees had neglected to pay the taxes according to the covenants otf the lease. Upon the trial, the judge found, as conclusion of fact, that the plaintiff, in February, 1855, had caused his agent, whom he had chosen as arbitrator under the covenant in the lease, to call upon the defendant, and require him to appoint an arbitra- tor to meet him ; that the defendant had promised to do so, but "had not done so. That the plaintiff's agent had thereupon in- formed the defendant that, if he remained after the 1st of May, 1855, he would have to pay a rent of $200 per annum. And then the defendant, having made default on the 1st of August, was dispossessed under a warrant in summary proceedings, which warrant described the premises as 206 E. 26th street, in- stead of 208 E. 26th street, which was the correct description, and that shortly afterwards the defendant had resumed posses- sion of the premises. Some other facts were decided which were immaterial in regard to the decision. Upon these facts, judgment was given that the plaintiff re- cover possession of the premises, and the defendants appealed. George W. Geer, the plaintiff, having died pending the ap- peal, the suit was continued By his administrators, Benjamin W. Wells, and Erastus H. Lathans. Francis Byrne for the appellant. I. The lease from respondent to West & Halsey, was obli- gatory upon them and their assigns, to him for the rent of $100 for four years and four months from the first of January, 1851, and for fifteen years from first May, 1855, at a rent " not NEW YORK MAY, 1860. 41 Wells v. De Leyer. " leas than $100 per annum in addition to all taxes and u assessments" which were to be paid by lessees, inasmuch as they covenanted " to hire and take the said lot for the " term of years above recited, upon the conditions, and at the " rents aforesaid" Jackson v. Kisselbrock, 10 J. R. 366 ; 2 Duer, 465. II. The covenant for rent, " to be agreed upon between the " parties," even if sufficiently definite to be enforced, or to found a cause of action, was for the benefit of the respondent ; if he did not adopt the means provided in the lease tp make the rent greater than the said sum of $100, it was his fault, and whether the agreement was to be made before or after the first of May, 1855, does not appear by the lease. III. Until the terms of the agreement between the respon- dent and the lessees had been complied with by them, or the arbitrators had fixed the rent, the lessees had lawful right to hold at $100 per annum, and taxes and assessments. IV. The covenant to agree as to the amount of rent to be paid does not affect the possession, the term for which is cer- tain, viz : 4 years and 4 months, 5 years, 5 years, 5 years (19 years, 4 months) ; and the breach of such covenant affords a cause of action for the damages for the failure to agree. Y. That construction should be given which will uphold contracts, and not destroy them ; the lessees are, by their covenant, bound, in any event, " to hire and take for the terms of years and at the rents aforesaid," and pay the taxes and assessments, the parties not having made any agreement for rent beyond, &c. ; this covenant should, therefore, be con- sidered equally binding on the respondent. YI. Any summary proceedings taken by the respondent against the appellant upon the alleged agreement made be- tween them and set forth in Wart's affidavit, did not and could not affect the lease by respondent to West & Hal- sey : the lessees were not parties to such proceedings, or even alluded to therein. VII. Nothing appeared on the trial by which it could be determined that No. 206 East 26th street was the lot described in the complaint. VIII. Any act of Warts, as agent of the respondent and the 42 COURT OF COMMON PLEAS. Wells v. De Leyer. appellant should not be considered as obligatory on the lessees, or as performed under the covenants in said lease. D. McMahon for the respondent. I. George W. Geer, the owner in fee of the premises in question, had the right, at the expiration of the first term of the lease to West & Halsey, to re-enter and resume possession of the premises in controversy. He could have refused to have appointed any arbitrator on his part, or to have submitted to any arbitration, and the only remedy the tenant or the assignee of the term would have had, would have been to resort to the covenants of the lease for damages, or to have brought an equitable action to compel the plaintiff, on his failure to arbi- trate, to execute to him a renewal of the lease upon equitable terms, corresponding with the covenants in the lease. Greason v. Kettletas, 17 .New York Rep. 491 ; Abeel v. Radcli/e, 6 John. C. R. 215 ; Wittock v. Duffield, 1 Hoffman C. R. 110. IE. After the expiration of the first term of the demise to West & Halsey, and after a reasonable time to arbitrate upon the rent for the renewal term, in the manner pointed out in the lease, had expired, Geer obtained possession of his premises by summary proceedings before a magistrate. These proceedings entirely annulled the operative force of this lease as a demise, until the landlord voluntarily restored possession. It only existed in covenant thereafter. Where there is a covenant to renew, and the first term expires there- after, the tenant holds over under the covenant for renewal. He cannot be said to hold over under the lease. Per Yan Ness, J., in Abeel v. Radcli/e, 13 Johns. Rep. 299. 1. If the summary proceedings taken were legal and juris- dictional, the lease and covenants, so far as they operate by way of demise, were annulled by force of the statute. 3 Rev. Statutes, 5th ed. 54; Laws of 1849, chap. 240, 1 ; Hensdale v. White, 6 Hill, 507 ; Whitney v. Myers, 1 Duer, 266. 2. If not jurisdictional and void or voidable, yet the dispos- session of the tenant was an eviction which destroyed the force of the lease, until the landlord voluntarily restored possession. Dyett v. Pendleton, 8 Cow. 731 ; Christopher v. Austin, 1st Kernan's R. 216. NEW YOKE MAY,' 1860. 48 Wells v. De Leyer. 3. The statute relative to summary proceedings only allows tenants under certain circumstances to be restored to posses- sion. This is not one of them. 3 Rev. Stat. 5th ed. p. 840, 54; Laws of 1849, chap. 240, 1. 4. The tenant could not, by his own act of re- possession, put himself in under the old lease, nor thereby enforce a specific performance of a contract to remain, or compel his landlord to arbitrate whether he wished it or not ; nor could he make the re-possession equivalent to the renewal term of five years, with all its rights and privileges. Jackson v. Schulte, 18 Johns. 174. III. The defendant made no case whatever before the Special Term, entitling him to a defence or to equitable relief. He failed to show the landlord in default, by proving, 1st. That he was ready to arbitrate, as required in the lease, when requested in that behalf. This was a condition precedent to the renewal term, so far as he was concerned ; and in failure of that, he did not become a tenant at will when the lease ended (4 Kent, 114, 115, 8th ed.), but was a tenant holding over. Rowan v. Little, 11 Wend. 616. 2d. He failed to show a tender of rent even under the lease as it stood, if re- newed on the same rent. Abeett v. Raddiffe, 15 Johns. 505 ; Conway v. Starkweather, 1 Denio, p. 113. To have made the tender effectual, even under his construc- tion of the renewal term, lie should have offered to pay or ex- pressed a readiness to pay taxes and assessments. By the cov- enants in the lease, he was bound to pay during the renewal term, also, the yearly taxes and assessments. By the admission in the case it appears that the landlord, Geer, paid the taxes for 1854 and 1855. 3d. The defendant was in possession of the premises, having the use and profits of its occupancy. In point of law he was estopped from denying he was assignee of the term. Matter of Galloway, 21 Wend. 32. Whether he was assignee or not was immaterial, inasmuch as he was the sole occupier of the premises, and the action was ejectment, and there was an entire failure of proof that West & Halsey had offered to arbitrate, or had put themselves in a rightful position towards the landlord, entitling them to a re- newal in fact, the contrary. COURT OF COMMON PLEAS. Wells v. De Leyer. IV. The omission of the tenant, De Leyer, to appoint an ar- bitrator, when requested by Wnrtz oh behalf of Geer, left him without any right as tenant to have a renewal under the lease. The notice given to him by Geer, if he stayed on the premises after the first of May, 1655, he would have to pay $200, and his neglect to dissent from his fixing of the rent, followed by his subsequent occupation without dissent, amounted to a waiver of arbitration on the part of De Leyer to fix the rent, and to an assent of the landlord's mode of fixing it. The arbi- tration was only to take place in case the parties failed to agree. It would, therefore, make him either a tenant from year to year at that rent, or a tenant for a renewal term of five years, at the rent of $200 a year, and taxes and assessments. Conway v. Starkweather, 1 Denio, 113 ; Despard v. Walbridge, 15 K Y. Eep. 374. BY THE COURT. DALY, F. J. Upon taking the covenants together, it is plain that the premises were demised for five years at $100 rent per year, ending on the 1st of May, 1855, with a privilege of renewal for five years, at a rent which was not to be less than $100 per annum, to be fixed in the mode pointed out in the lease, and for two additional renewals there- after of five years each, at rents to be fixed in the same man- ner. It is immaterial whether the defendant was a sub-tenant of West & Halsey, or assignee of the lease, as neither he nor West & Halsey took any steps, before the expiration of the term, to appoint an arbitrator in pursuance of a covenant for a renewal. The landlord, through his agent, appointed an arbitrator, of which appointment the defendant was duly notified a reason- able time before the expiration of the term, but though urged several times by the plaintiff's agent to appoint an arbitrator, and though he promised to appoint one, and in fact declared that he had appointed one, and the arbitrator appointed on behalf of the landlord attended at the place and hour designated by the defendant to meet his arbitrator, he did not appear. The arbitrator appointed, who was also the landlord's agent, made repeated efforts thereafter. The defendant told him he would appoint another man, but would or did not do so ; and when the term was about expiring, the landlord's agent informed tho .NEW YORK^-MAY, 1860. 45 Wells v. De Leyer. defendant that if he remained in occupation of the premises he would have to pay $200 rent after the 1st of May, 1855. The landlord, by his covenant, had agreed to extend the terms at a rent to be agreed upon between the parties, and if not agreed upon, to be fixed and settled upon by arbi- trators. If the landlord had failed to appoint an arbitra- tor on his part before the expiration of the term, the lessees or their assignees, might, in an action for a specific performance, have compelled the landlord to renew the lease at the rent pre- viously paid, (Greason v. Keteltas, 17 N. Y. Rep. 496 ;) but as the terms expired, without the rent, at which the renewed term was to be granted, being fixed either by agreement or by arbitration, entirely through the neglect of the lessees, or their assignee, to do what they were required by the covenant to do, the estate in the lessees, or their assigns, ended, and the right to the renewal was gone. It is urged, by the de- fendant, that, as no time was fixed for the appointment of an arbitrator, that the covenant is void for uncertainty. If it is, then the lessees, or their assigns, derive no benefit from it, and it does not lie with them to complain. But I suppose that every such covenant is to have a reasonable interpretation, and that it may be gathered from it that it was the intention of the parties that the rent was to be agreed upon or fixed by arbitra- tion, before the new term was to begin, for which a renewed lease was to be given, and if the neglect to do so was entirely at- tributable to the lessees, or their assigns, there was a failure of performance on their part, and they can take no benefit from the covenant. The defendant, if he were the assignee, having failed to do what it was incumbent on him, if he wished to have the benefit of the covenant, and having continued in occupation of the premises after the expiration of the original term, after be- ing notified by the landlord's agent that, if he did so, he must pay rent at the rate of $200 a year, and not having expressed any dissent, when so notified, I think he must be regarded as assenting to occupy the premises as a tenant from year to year at that rate. Having neglected to pay the first quarter's rent at that rate, when it was demanded, the landlord resorted to the summary proceedings given by the statute to dispossess him. ,/The affi- 46 COURT OF COMMON PLEAS. Wells v. De Leyer davit was sufficient to give the Justice jurisdiction to issue the summons. It contained all that the statute required. The summons was served upon the defendant, and he appeared be- fore the Justice, and put in a counter-affidavit. What was contained in the counter-affidavit did not appear, nor did it appear, as the Justice had lost his minutes, what tes- timony was given, or what was litigated before him. All that is shown by the process is that the Justice rendered judgment in favor of the landlord that he should have possession of the pre- mises described in the affidavit, by reason of the non-payment of the rent specified therein. The premises were described in the affidavit as a lot of ground known as No. 206 East 26th st. in the City of New York. If there was a mistake in the number, the de- fendant could waive it (Ferris v. Humphrey, 4 Denio, 186), or if he took issue upon it, the judgment rendered by the Justice was conclusive against him. The only question that could arise upon the trial at the special term, was whether the proceed- ings before the Justice, related to the same premises, and this was conclusively shown. The judgment, given by the Justice, put an end to the tenancy subsisting by virtue of the implied agreement to pay rent at the rate of $200 a year, after the ex- piration of the lease to West & Halscy. 3 Rev. Stat. pp. 836, 838, 840, 28, 39, 54, 5th ed. ; Hin&dale v. White, 6 Hill, 507 ; Whitney v. Meyers, I Duer, 276. The defendant, hav- ing been removed from the premises, and the landlord put in possession under the warrant issued by the Justice, the entry by the defendant afterwards was unlawful. He was not then in occupation as a tenant at will, or at sufferance, or from year to year, but as a trespasser, and wrong doer, and ejectment would lie to recover possession of the premises. The record of the proceedings for a forcible entry and de- tainer was properly excluded. The title to the premises is not in question in such a proceeding. The only matter inquired into, is whether the party charged entered by force upon one, having previously a peaceable possession, and held out by force. The People v. Van Nostrand, 9 Wend. 51 ; People v. Leonard, 11 Johns. 504 ; People v. Rickert, 8 Cow. 226. The judgment should be affirmed. NEW YORK MAY, 1860. Stilwell v. Raynor. ISAAC N. STILWELL v. CAPTAIN RAYNOR, Master and Owner of the Schooner E. J. Raynor. The " act concerning the pilots of the channel of the East River, commonly called Hell Gate," passed April 15th, 1847 (2 Rev. Stat. 5th ed. 428) Held, constitutional and valid. The clause in the Federal Constitution, conferring upon Congress the power " to regulate commerce with foreign nations, and among the several States" (art. 1, 8, subd. 3), does not deprive the several States of power to legislate upon the subject of pilots. APPEAL by plaintiff from a judgment entered against him hi the First Judicial District Court, before Justice DUSENBURY. The action was brought by the plaintiff as a Hell Gate pilot, to recover half pilotage fees of the defendant, under the act of the Legislature, passed April 15, 1847. Upon the trial, the Justice dismissed the case, upon the ground that the act of 1847 was unconstitutional and void. The plaintiff now appeals to the Court of Common Fleas. Alanson Nash for appellant. Frank Byrne for respondents. HILTON, J. The plaintiff, a Hell Gate pilot, brought this ac- tion to recover half pilotage fees of the defendant under the provisions of 7, of the " act concerning the pilots of the chan- nel of the East River, commonly called Hell Gate," passed April 15, 1847, upon the ground that he had tendered his ser- vices as pilot, to navigate the defendant's vessel through the channel of Hell Gate, and hacl been refused. Upon the trial' the Justice dismissed the case upon the ground that the act under which the plaintiff claimed to re- cover was unconstitutional and void, and as he expressed no 48 COURT OF COMMON PLEAS. Stilwell v. Raynor. opinion upon the evidence offered, it is therefore unnecessary for us to determine upon this appeal whether the evidence ad- duced before the Justice was sufficient to entitle the plaintiff to recover, if the Justice entertained a different view of the act, which created the right that the plaintiff sought to enforce. I shall therefore assume that the only question before us is, whether the act referred to is unconstitutional, as the Justice declared. By the Federal Constitution, the several States conferred up- on Congress the power " to regulate commerce with foreign nations, and among the several States, and with the Indian tribes " (Const. U. S. art. 1, 8, sub. 3), and as this power ne- cessarily includes the regulation of navigation, and the right to prescribe rules, in conformity with which it must be carried out, a power extending to every part of a voyage, with a right to regulate those who. conduct, or assist, in conducting naviga- tion : it is claimed that it necessarily deprives the several States of all power to legislate on the subject of pilots, and such, I am satisfied, was a very prevalent view of the subject (See Joint Resolution, Laws 1847, p. 484), prior to the decision of the United States Supreme Court in the case of Cooley v. Board of Wardens of ike Port of Philadelphia (12 Howard TJ. S. 299). That case was very similar to this. It arose under a law of the State of Pennsylvania, which required ves- sels sailing in the Delaware River to receive a pilot, or upon refusal or neglect to do so, to pay half pilotage. It appeared that Cooley, as owner of several vessels navigating that River, refused to receive a pilot, or pay their fees, and he was sued by the Board of Wardens to recover half pilotage, under the pro- visions of the law referred to. The action was originally brought before a magistrate in the City of Philadelphia, who gave judgment against Cooley. An appeal was taken to the Court of Common Pleas, who gave a similar judgment. It was then carried to the Supreme Court of the State of Pennsylva- nia, who affirmed the judgment, by adding that the act was not, in any of its provisions, at variance with the Constitution or laws of the United States, but' was a constitutional and legal enactment. The case was then removed to the Supreme Court of the United States, who, in December, 1851, likewise affirmed the .judgment, holding, that the mere grant to Congress of the NEW YOKK MAY, 1861. 49 Loeschigh v. Blun. power to regulate commerce, did not deprive the several States of the power to regulate pilots and that although Congress has legislated on the subject, yet its legislation has manifested an in- tention not to regulate the subject, but to leave its regulation o the several States. The law was then declared to have been en- acted by Pennsylvania by virtue of a power residing in the State to so legislate, that it was not in conflict with any law of Congress, nor did it interfere with any system which Congress had established or sanctioned, and that therefore the law was valid. In support of this view, and for the purpose of showing that Congress recognized this power to exist in the several States, the Court referred to the act of Congress of August 7, 1789, 4: of which is as follows, " That all pilots in the bays, rivers, in- lets, harbors and ports of the United States, shall continue to be regulated in conformity with the existing laws of the States respectively, wherein such pilots may be, or until such laws as the States may respectively hereafter enact for that purpose, until further legislative provision shall be made by Congress," and it is only necessary to add in conclusion that as Congress had not yet seen fit to legislate upon the subject of pilotage, the act in question was passed by the State of New York, under an undoubted right in the legislature to en- act it, and is constitutional and valid. Judgment reversed. DALY, F. J., concurred. WILLIAM LOESCHIGH and others v. NATHAN BLUN and others. Where property is given in exchange for notes, void in their inception for usury, the property BO given in exchange may be recovered, and the ex- change rescinded, on the discovery of the nature of the notes ; and an action will lie for the conversion of the property, notwithstanding the person giv- ing the notes, acted in good faith, and without knowledge of their character. 50 COUKT OF COMMON PLEAS. Loeschigh v. Blun. THIS action was brought to recover the value of two promis- sory notes of defendants', and a bank check of plaintiffs, of the value of two thousand and seventy-four dollars and forty- two cents received by the defendants from the plaintiffs. The defendants, under a general denial, set up that they had given in exchange for such notes and checks, the note of James De Gray & Co., purchased by them from third parties, in the reg- ular course of business. The plaintiffs, in rebuttal, proved that such note was an accomodation note, and that the parties for whose accommodation the same was made, had sold it for a usurious discount. Some attempt was made to show a knowl- ege of this fact in Nathan Blun, who was the active member of his firm in the transaction, and had a long negotiation with the plaintiff in relation to the exchange. The defendants offered evidence to the effect that the plain- tiffs had not relied on defendants' statements, but had inquired of the makers of the note as to its validity, and were therefore now estopped from denying it. The referee, to whom the case was referred, found substan- tially, that the note was, on the proposal of defendants, ex- changed for the indebtedness of defendants, and a check of plaintiff; that the note was an accommodation note, and sold at a usurious discount ; that the makers were insolvent before the delivery of the note by defendants to plaintiffs ; that neither plaintiffs nor defendants were aware, at the time of the exchange, of such insolvency, or the usuriousness of the note, but that Blun had represented the note to be a regular busi- ness note ; that these facts were discovered by plaintiffs two days after the transaction, and a tender of such note and a de- mand for the exchanged property, made by the plaintiffs on the same day, and that the exchanged property, viz : the two notes of defendants, and the check of the plaintiffs, were worth two thousand and seventy -four dollars and forty-two cents ; that the plaintiffs were entitled to rescind the exchange, both for the insolvency of the makers of the note, and because the note was void ; and that the amount of two thousand and sev- enty-four dollars and forty-two cents, with interest, was due to the plaintiffs. Various exceptions were taken in the course of the trial, and to the referee's report. Judgment was entered in accordance NEW YORK MAY, 1861. 51 Loeschigh v. Blun. with the report, and the defendant appealed to the general terra of this Court. Shea & Richardson for the appellants. I. The answer made by Mr. Blun, that it was a regular business note, will not sustain the judgment. (1.) It was made to an inquiry about the consideration of a note to which he was not a party, and such inquiry, therefore, merely sought to elicit whatever information he had, and his opinion. His reply was in good faith, and what he himself be- lieved, and had reason to believe, to be the truth. Haycraft v. Creasy, 2 East's Rep. 92 ; 1 Sugden on Vendors, 5, 14 ; Mason v. Crosby, 1 Woodbury and Minot, 352, 353. (2.) The plaintiffs did not permit themselves to trust to the opinion of Mr. Blun, but sent to James De Gray & Co. to ques- tion the original source of the note, with a view to protect themselves against any equitable or personal defence from that source. Clapham v. ShiUito, 7 Beavan's Rep. 146 ; 1 Sugden on Vendors, 5, p. 14 ; Mason v. Crosby, 1 Woodbury and Minot, 252, 253. (3.) Mr. De Gray's answer to that enquiry will estop the makers from availing themselves of the personal defence of usury, if any there is. Carpenter v. Stilwell, 1 Kernan's Rep. 73. Therefore, in legal effect, the note comes up to Mr. Blun's opinion of it. (4.) The plaintiffs cannot recover in this action upon a mere representation by the defendant Blun, unless he also shows that the representation was bottomed in fraud. Chandelor v. Lopus, 1 Smith's Leading Cases, p. 77 ; Lord v. Goddard, 13 Howard IT. S. Rep. 211; 1 Story on Eq. Jurispr. p. 191 ; Gallagher v. B'-unnel, 6 Cowen's Rep. 352, 353. II. The referee is in error in finding that the makers and endorsers of the note having been insolvent, and having failed on the 4th of September, 1857, therefore this action is main- tainable, although the defendant, Blun, and his co-defendants, acted in good faith. This exchange is an executed contract, and transferred and vested a present title. Heidenheimer v. Lyon, 3 E. D. Smith's R. 56.; Des Arts v. Legget, 16 New York Rep. 589. 52 COUKT OF COMMON PLEAS. ^ Loeschigh v. Blun. III. The last ground upon which the referee places his re- port is erroneous. That the note being usurious and " void," in its inception and in the hands of the said Charles !B. Rose, the plaintiffs had a right to rescind the transfer and trans- action, and to recover back the two notes and check. (1.) The case does not coine within the principle of implied warranty of title. The usury merely concerns the consideration of the note, and even mere breach of warranty of title, in the absence of fraud, does not entitle the plaintiffs to rescind this transfer. 1 Smith's Leading Cases, 237 ; Muller v. Eno, 4 Kernan's Reps. 601 ; Voorhies v. Earl, 2 Hill, 285 ; Gary v. Gruman, 4 Idem, 625 ; Case v. Hall, 24 Wendell's R. 103. (2.) Where the transfer was as in this case, by mere delivery of the note, without indorsement, made in exchange for other bills, " no right of action whatever arises against the defendants, in case the note turns out to be of no value." Chitty on Bills, 247 ; Story on Promissory Notes, p. 118. The case of forged or stolen property is governed by a different principle. Canal Bank v. Bank of Albany, 1 Hill, 287. Usury is merely a per- sonal defence, and only voidable. Scroeppel v. Corning, 10 Barb. 579 ; Murray v. Johnson, 5 Selden's R. 73. As also is the case " where a man assigns a note for any sufficient consideration, knowing it to be of no value, and the vendee be not aware of the fact ; in these cases, the property parted with can be recovered by the vendee. Chitty on Bills, 247. Augustus F. Smith for the respondents. I. The representations made by the defendant Blun, that the note of De Gray & Co. was a regular business note, prov- ing to be untrue, the plaintifls were entitled to rescind the ex- change. (1.) If he knew the representations to be false, the plaintiffs are entitled to rescind for fraud in fact. (2.) If ha knew nothing either way, it was a fraud to make a representa- tion of a fact of which he knew nothing. Galoupeau v. Ketchum, 3 E. D. Smith, 1?5 ; Story on Sales, 165, 179 ; 1 Story Eq. Jur. 193, 191, 194 ; 2 Kent, 485, note 1, and cases cited. II. If the parties had made thp exchange, both supposing the note of De Gray & Co. to be a valid note, and it proved to be void by statute, the plaintiffs could rescind the exchange NEW YORK MAY, 1861. 53 Loeschigh v. Blun. upon discovering that the note was void. This presents the common case of a mistake of fact. Martin v. McCormick, 4 Selden, 331 ; Story's Eq. Jur. 140, 141, 142, 143 ; Wfieadon v. Olds, 20 Wend. 174; see also, Benedict v. Field, 1.6 N.'Y. 595 ; Story on Contracts, 102 to 110 ; Chitty on Bills, 245. III. The defendant, Blun, also represented, in substance, that the note was a good note. The fact was that both makers and indorsers had failed, and were insolvent. The same considerations apply to these facts that are stated under the first point; BY THE COURT. DALY, F. J. This case is not distinguish- able, in principle, from Galoupeau v. Kctchum, 3 E. D. Smith, 175. The referee has found that the note was usurious and void in its inception ; that the defendant Blun, in answer to the plaintiffs' inquiry, declared it to be a regular business note, and that neither Blun nor his co-defendants had any know- ledge, when this representation was made, whether it was a bus- iness note or not, and this finding is sustained by the evidence. The plaintiffs having, upon this representation, exchanged their check and two notes for a note that was absolutely void, were, when they afterwards discovered the representation to be false, entitled to have their check and the two notes re- turned to them, upon tendering back the note they had received in exchange. It is wholly immaterial whether the defendant believed it to be a business note or not, or whether they knew the real character of the note ; for if, in the first place, both Blun and the plaintiffs acted, in making the exchange, up- on the assumption that the note, which never had any validity at all as an obligation, was a valid business note, the plaintiffs, upon discovering the mutual mistake, had a right to rescind the contract of exchange ; (Martin v. McCormick, Seld. 331; Hitchcock v. Giddings, 4 Price, 135; Bennett v. Judson, 21 N. Y. Repts. 238 ; 1 Story Eq. Juris. 193), or if, in the second place, Blun knew the real character of the note, then he was guilty of a fraud in making ihe representation which he did, and the plaintiff, upon that ground, would be en- titled to rescind the exchange. The case of Hay craft v. Cn-asy (2 East. 92), upon which the defendants rely, was an action to recover damages for " a false, fraudulent and deceit- 54 COUKT OF COMMON PLEAS. i - Berry v. Mayhew. ful representation; and all that need be said respecting it is that the decision was put upon the ground that the statement of the defendant, that he knew of his own knowledge that the person inquired about had been left a considerable fortune, and was in daily expectation of a greater one, when the fact was that he had been duped himself to the extent of two thou- sand pounds, by the artful show of appearances and false rep resentations of the person referred to was not sufficient to show an intentional design, on his part, to deceive the plaintiff; that his assumption of knowledge, under the circumstances, was rather his nndiscriminating mode of asserting his strong conviction and belief, and not such an act of fraud or deceit as would subject him to an action for damages. It is a very dif- ferent case from this. The judgment should be affirmed. HIBAM G. BEEBT v. THOMAS M. MATHEW and others. Where evidence was ruled out by the Court below, the appellate Court will not inquire into its relevancy, unless it or its substance appear in the case, but will assume that the decision of the Court was correct. The defendant collected a sum of money for 8. with directions to pay the same to the plaintiff, Held, that this was equivalent to an express promise by the defendant to the plaintiff to pay him such sum, and an action for money had and received by plaintiff was well brought. Held, further, that no con- sideration between plaintiff and S. need be shown. Under such circumstances, it is no defence, that another party claims the same sum, but the money should be paid into Court, and such third party brought in by way of interpleader. APPEAL by defendants from a judgment rendered in favor of plaintiff on a trial before Judge Brady, without a Jury. The facts in this case are fully stated in the opinion of the Court. NEW YOKK MAY, 1861. 55 Berry v. Mayhew. Beebe, Dean, and Donahue, for the appellants. I. The Court should have dismissed the complaint on the motion for that purpose. 1. There was no evidence that the defendants were partners. 2. There was no evidence that the defendants, or either of them, received the moneys claimed. 3. There was no evidence that the plaintiff was the owner of, or in any way interested in, the moneys. II. The money claimed was the earnings of the brig Frances Ellen, referred to in the letter of Sawyer. The letter of Sawyer was not an assignment or transfer. III. The letter of Sawyer, enclosing the draft, merely con- stituted the plaintiff the agent of the owners of the vessel, to receive the moneys when collected, and vested no title in plaintiff. IV. Plaintiff was not the owner of, nor interested in, the brig, and consequently not entitled to the moneys claimed, they being her earnings. J. W. Gerard, Jr. (Platt, Gerard & Buckley) for the respon- dents. I. It was proved at the trial, without any conflicting testi- mony, that Captain Sawyer enclosed to the defendants the note of Captain Fisk (which is produced, paid, and cancelled), with directions to collect it and remit the money to the plain- tiff. The defendants received the note, and acted under this retainer. II. The plaintiff then draws for this money, and on presen- tation of the draft, the only objection defendants make is, that the money is trusteed, otherwise " they would be happy to pay " over the money. III. The above being the facts, the law is, that an action may be maintained on the reception of money by the defend- ant of a third person for the benefit of the plaintiff, without any consideration moving from the plaintiff. Weston v. Bar' her, 12 Johns. 276 ; Schermerhom v. Vanderheyden, 1 Johns. 139; Shear v.ffittsdale, 13 Johns. 496 ; Judson v. Gray, 17 How. Pr. R. 289. 56 COUKT OF COMMON PLEAS. Berry v. Mayhew. BY THE COURT. HILTON, J. The complaint was that the defendants, composing the firm of Mayhew, Talbot & Co., had received two hundred dollars to and for the use and benefit of the plaintiff, which they, upon request, refused to pay over. The answer contained a denial of having received the sum specified, or any money for the use of the plaintiff, and also denied that the defendants were co-partners. At the trial before the Court, without a jury, the plaintiff, to establish his case, produced two letters, dated June 3d and 14th, 1858, and in the defendant's possession. They were written and sent to the defendants by D. J. Sawyer, and the first of which enclosed a note of C.^A. Manstield for two hun- dred dollars, with a request, in substance, that they would collect it, by suit, if necessary, without delay, and remit the money to the plaintiff. The second letter appears to have been written after the defendants had received the 'money on the note, and had informed Sawyer by telegraph that it had been attached for the debts of James B. Mansfield. In this letter, after stating that the money does not belong to James B. Mansfield, Sawyer adds, "If you can get it out of his hands, and pay it over to Berry, I should be glad." Subsequently, the plaintiff demanded the money of the de- fendants Talbot and Butler, when they answered that they should be happy " to pay over the money if there was not an attachment or trusteeship," giving no other reason for their re- fusal. . After it was further shown that the defendant Simpson was not a member of the defendant's firm, but that their partner- ship consisted of the other defendants, the plaintiff rested his case, and a non-suit was then asked for by the defendants, upon various grounds, but denied, and an exception taken to such denial. The testimony of the defendants' witnesses did not, in any degree, impair the case thus shown by the plaintiff, nor did the defendants attempt to show that the money had been attached as stated by them at the time of the demand made, but, as a part of the defence, a letter was offered in evidence from Saw- yer to the defendants, dated June 16, 185S. Its admission be- ing objected to by the plaintiff, it was ruled out by the Judge, and an exception taken by the defendants to such ruling. NEW YORK MAY 1861. 57 Berry v. Mayhew. As the printed case submitted to us does not contain this letter, we are unable to say whether it was or was not material to the issue presented by the pleadings. "We must, therefore, assume that the judge who tried the cause, and had an oppor tunity to ascertain the contents of the letter, properly re- jected it. At the close of the trial, upon the application of the plain- tiff, the name of the defendant Simpson was stricken out of the complaint, and subsequently judgment was given against the remaining defendants, who were shown to have been co-part- ners at the time the money was thus received. I am unable to understand upon what ground this judgment can be deemed erroneous. The evidence derived from the let- ters in the defendant's possession, being wholly uncontradicted, clearly showed that they had received, at the request of Saw- yer, two hundred dollars upon the trust that they would pay it over to the plaintiff. This was equivalent to an express prom- ise to the plaintiff that they would pay the money to him ( Weston v. Barker, 12 Johns. 276), and so, in the most strict and literal sense, .it was money received to his use. Israel v. Douglass, 1 H. Black, 229 ; Ward v. Evanst, 2 Raymond, 928 ; S. C. 6 Modern R. 36. It came into the hands of the defendants, accompanied by a special direction from Sawyer, to whom it belonged, to pay it to the plaintiff, and under such circumstan- ces it is well settled, that an action may be maintained by the person to whose use the money has been received. De Bernalis v. Fuller, U East, 590, note, S. C. ; 2 Camp. K P. C. 426 ; Bar leer v. Birch, 3 Id. 109 j Tfierasson v. McSpedon, 2 Hilton, 1 ; Del. (& Hud. Canal Co. \. Westcfiester Co. B'k., -4 Denio, 97, and cases cited. This right does not depend upon a considera- tion moving from the party who brings the action, it being only necessary that the promise shall be founded upon some valid consideration moving from the person entitled to the money at the time of giving the direction. Judson v. Gray, 17 Howard P. R. 289; affirmed in Court of Appeals. ., In regard to the point taken by the defendants on the argu- ment before us, that the money was the property of James B. Mansfield, and therefore did not belong to either Sawyer or the plaintiff, it is only necessary to say that no such fact was es- tablished at the trial, nor was it set up in the answer as a de- 58 COURT OF COMMON PLEAS. Thomas v. Wickmann. fence. Besides, the defendants, as I have before remarked, received the money upon the trust that they would pay it to the plaintiff, and therefore could not relieve themselves from the obligation thus assumed by setting up a pretended claim on behalf of some third person. If upon sufficient grounds, they considered such claim valid, their proper course was to in- terplead the person making it, and bring the money into court ; leaving the several claimants to litigate their rights respecting it. Atkinson v. Manks^ 1 Cowen, 691 ; Shaw v. Coster, 8 Paige, 339 ; Bedell v. Ho/man, 2 Paige, 199 ; Code, 122. Judgment affirmed. MARGARET THOMAS v. ALBERT WIOKMAJWT. Where by the terms of a contract of sale of real estate, a day is fixed for the payment of money by the vendee, and the delivery of a deed by the vendor, the vendor is bound to seek the vendee and tender the deed, or by some act call upon him to perform his contract, before he can place the vendee in such a position as will work a forfeiture of a sum paid on account of the purchase price. The fact that the vendee quits the premises before the day agreed upon for the delivery of the deed, does not absolve the vendor from his obligation to tender a deed, if he wishes to put an end to the contract. And the vendee having subsequently made a tender of performance of his part of the contract may, on refusal of the vendor to deliver a deed, recover a sum paid under the contract. A declaration by the vendee's attorney, made prior to the day on which the title was to be passed, that the vendee did not want the title Held, no ev- idence that the vendee did not intend to complete the contract on the day specified in the contract ; and would not excuse the vendor's default to perform or tender a performance of his part. In an action by a married woman to recover money paid by her, the question whether the money so paid was her separate property or not, is one of fact which it is proper to submit to a jury. NEW YOKK MAY, 1861. 59 Thomas v. Wickmann. APPEAL by the defendant from a judgment of the Fifth Dis- trict Court. The action was brought by plaintiff, a married woman, to recover the sum of one hundred and fifty dollars, paid by her to the defendant on account of a purchase of real estate. The further sum of eight hundred and fifty dollars was to be paid a month later, when a mortgage was to be given for the bal- ance of the purchase price, and the defendant was to deliver his deed. The plaintiff entered into possession ; but prior to the day agreed upon when the deed was to be delivered, the money paid and the mortgage executed, she abandoned the premises. The day agreed upon to close the business having passed, the defendant resumed possession of the premises, without making a tender of any deed. Subsequently, the plaintiff made a ten- der of the money to be paid, and of a mortgage. The defen- dant declined to deliver a deed, or to refund the one hundred and fifty dollars paid by the plaintiff. The plaintiff obtained judgment, and the defendant appealed to the Common Pleas. The grounds of the appeal are fully stated in the opinion of the Court. Philip S. CrooJce for appellant. I. The sum paid by the plaintiff was abandoned, and for- feited by her; and no action lies to recover it back. Hunt v. Siek, 5 East, 449 ; JSeavan v. McDonnell, 26 Eng. L. and E. 540. II. The money was the property of plaintiff's husband, and this was not a question of fact for the jury. John Anderson, Jr. for respondent. BY THE COURT. BBADT, J. The money paid by the plain- tiff was borrowed by her, and the fact also was shown that she had deposited in bank a sum of money given to her by her father, and which she had continued to hold as her separate 60 COURT OF COMMON PLEAS. Thomas v. Wickmann. estate. It belonged to her, therefore. There is no evidence in the case to show the husband's liability for the money thus borrowed, or that he ever had it in his possession, and there are no facts or circumstances from which it may be inferred that such money was his. If a right of action to recover it ex- isted in any person, it was in the plaintiff. The charge of the justice, therefore, that whether the money was her separate property or not, was a question of fact, was not exceptional, be- cause it could by no possibility have injured the defendant. It was more favorable to him than was warranted by the facts proved. By the contract of sale, the plaintiff was to execute a mortgage to secure the sum of seven hundred and fifty dol- lars, and was to pay eight hundred and fifty dollars on the de- livery of the deed, on or before the 26th July, 1859. She took possession of the premises on the day after the contract was made, 29th June, 1859, but abandoned the premises prior to the 26th July following, when the deed was to be delivered. The defendant, after that day, assuming that the plaintiff was in default, took possession of the premises, and made repairs at his own expense. He did not seek the plaintiff, and tender a deed, or by any other act. -call upon her to perform her con- tract, or place her in such a position that unless she did per- form her agreement, she would forfeit the sum paid. Subse- quently the plaintiff, through her attorney, offered or tendered the money, eight hundred and fifty dollars and the mortgage, and demanded a deed or the money paid. The defendant de- clined to give either. On these facts the plaintiff was entitled to judgment. The plaintiff was not in default. She had not been tendered the deed, and by the terms of the contract, she was not to pay the balance of the consideration, or give a mortgage, until the deed was delivered. The removal from the premises did not absolve the defendant from his obligation to tender a deed, if he wished to put an end to the contract. He could not hold the money paid, unless the plaintiff was in default. It is well settled (JEWETT, J.), that where the cov- enants between the parties are mutual, and both are to perform at the same time, neither party can maintain an action until he has performed, or tendered performance of his part of the agreement. Williams v. Healy, 3 Denio, 363 ; Ddkln v. Wil- liams, 11 Wend. 68 ; 2 Parsons on Contracts, 41, note e. The NEW YOKE DECEMBER, 1859. 61 Bailey v. Johnson. defendant having failed and refused to perform, was himself in default, and could not withhold the money. He seems to rely, however, on the declaration of Mr. Anderson, the attorney-at-law of the plaintiff, made on the 15th of July, 1859, that " she did not want the title " ; but assuming that such was the fact, it is no evidence to show that she did not want it on the 26th of July, 1859, until which day she had to complete her contract. Whether the declaration of Mr. Anderson was a conclusion of his own or the avowed wish of the plaintiff does not appear. I think the judgment should be affirmed. THOMAS BAILEY v. WILLIAM L. JOHNSON, JOSIAH H. BURTON, WARREN BEMAN AND MAHLON D. OODKN. In an action brought by a sub-contractor to enforce a lien claimed to have been acquired under the mechanics' lien law of 1851, it must appear by the complaint, 1. That labor or materials have been furnished in the erection of the building, in conformity with the contract made by the original contractor with the owner. 2. That within six months thereafter, a notice in writing, under the sixth section of the act, claiming a lien for the work or materials thus furnished, was filed with the county clerk. 8. That at the time of filing the notice of lien, or subsequently, a payment was due or has since become due from the owner to the contractor upon the original contract. 4 That the contracting owner had some interest in the property at the time the notice claiming the lien was filed. Where, in an action to enforce a mechanic's lien, the complaint fails in any of the foregoing requisites, a motion to dismiss at the trial is proper, and will be granted. 62 COURT OF COMMON PLEAS. Bailey v. Johnson. A bona-fide purchaser of the premises before the filing of notice of the lien, cannot be " chargeable " with such notice. Although as to some defects, a complaint may be amended at the trial in fur- therance of justice, yet where it cannot be amended without changing the form of action, the amendment will not be allowed. Where, in a proceeding instituted by a sub-contractor under the mechanics' lien law of 1851, it appears by the complaint, and by the facts admitted by the counsel, that no lien can be established, a motion for leave to amend the pro- ceeding into an ordinary action for the recovery of money, against the con- tractor, will be denied. An application for leave to amend a pleading at the trial, is addressed to the favor of the Court, and its disposition is not the subject of review upon ap- peal. It seems that the plaintiff has a right to prove the ownership of the party charged, however numerous the record-evidences are to the contrary, pro- vided that those evidences were created for the purpose of defrauding him, or defeating claims arising under the lien law. Where, in an action to enforce a mechanic's lien against several defendants who appeared by the same attorney, the complaint was dismissed on motion, on the ground that it did not contain facts sufficient to constitute a cause of action, without any trial of the issues raised by the answers, and it did not appear that their defences were such as could not have been joined, Held, that separate bills of costs should not be allowed to these defendants. THE issues in this action came on to be tried before Judge DALY, without a jury, on the 24th and 25th days of Feb- ruary, 1859. The defendants severally, by their respective attorneys, moved to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The Court ruled and decided that the complaint was insuffi- cient ; to which ruling and decision the counsel for the plain- tiif excepted. The plaintiff's counsel then asked leave to amend ; but the Conrt denied the motion, and held that although as to some defects, the complaint might perhaps be amended in further- ance of justice, yet, that as to other defects, it could not be amended without changing the form of action. To which the plaintiff's counsel excepted. The counsel for the plaintiff then asked leave to go on and prove his claim against William L. Johnson, with a view to NEW YORK DECEMBER, 1859. Bailey v. Johnson. take judgment against him as contractor under the law of 1855. The Court ruled that the plaintiff could not recover judgment against the contractor, and to this decision the coun- sel for the plaintiff excepted. The plaintiff appeals to the general term. The facts upon which the action was founded will appear in the opinions. H. JBrcwster, fo* appellant. L A motion to dismiss the complaint without proofs should not be encouraged, because if the complaint does not show a cause of action, the defendant should demur. On demurrer the party will be admonished to examine all delects, and has then a right of amending for twenty days without costs. (Code, 1T2.) II. The Court should only dismiss a complaint on trial, for the reason that there appears clearly to be a defective cause of action, and not a cause of action defectively stated, even if there be an omission of material averments. III. The only point argued on the motion below was that the complaint showed the plaintiff could not recover, because it appeared that Burton had conveyed to Leeds. On this we say, that the allegations show that Beman had an interest, and was real owner, and that the Court could, and should, look through the disguises thrown around the title to try to escape the lien law. The owner within the lien law is not the person in whose name the legal title stands. Loonie v. Hogan, 2 E. D. Smith, 681 ; Nott on the Lien Law, page 100. Therefore, as some one must be owner, it is he for whom the building is erected. In this case the house was built by Beman for himself; he was owner by purchase, and Leeds held for him and for his benefit. Lemen v. Whitney, 4 Russell Ch. Rep. 423 ; Story Equity, sec. 1197 ; 3 Rev. Stat. 5 ed., page 52. IV. The complaint charges that Ogden purchased with notice of our lien, which was filed 28th day of September, 1857, and that the premises were conveyed to him in Feb- ruary, 1858. 64 COURT OF COMMON PLEAS. Bailey v. Johnson. V. The plaintiff should have been allowed to amend ; and, in some cases, it is so much a matter of positive right that it is error to refuse it. Vide Catlin v. Gunter, 1 Kernan, 368. And when the Statute of Limitation has run, the Court go very far to relieve by amendment. Miller v. Watson, 6 Wend. 506. In this case the right to commence an action ended on the 28th day of September, 1858. VI. The plaintiff should have been allowed to take judg- ment against Johnson, the contractor, under 5 of the Statute of 1855,Laws 1855, page 751. In Grogan v. The Mayor, &c., 2 E. D. Smith, 693, the plaintiff was allowed to take judgment against Patrick McAuliffe, the contractor. See Ryan v. O'Brien, before BRADY, Judge, February Term, 1859 ; Grogan v. McMaTwn, 4 E. D. Smith, 754. Andrew H. Green, for respondent Mahlon D. Ogden. I. The complaint does not contain facts sufficient to consti- tute a cause of action. It attempts to set forth two causes of action against different sets of defendants. One under the Mechanics' Lien Law and the other, to set aside certain deeds on equitable grounds. The statement of facts is insufficient to constitute either of these. These causes of action do not belong to one class. Neither of them affect all the parties to the action; and they are not separately stated. Code, 167; Laws 1855, page 955, 8 ; Lexington R. R. v. Goodman, 15 How. 85. (1.) As constituting a cause of action under the Lien Law, the complaint should be confined to the parties named in the notice of lien. Laws 1851, pages 953, &c., 1, 4, 6, 8. (2.) It does not state that Ogden was the owner of the premises, nor that plaintiff had any contract with Ogden as such owner, nor with his agent, nor that plaintiff performed any labor, &c., in pursuance of an agreement with a contractor, with Ogden, or his agent, and in conformity with the terms of such contract, nor that such contract had been so far performed as was, prima facie, sufficient to entitle the contractor to recover, had he brought his action for the same cause, nor that anything was due on such contract Laws 1851, p. 953, 1 ; Dixon v. La- farge, 1 E. D. Smith, 724 ; 2d Id. 662 ; 3d Id. 625, 681, 717. (3.) It does not state whether the contract was in writing, or NEW YOKK DECEMBER, 1859. 65 Bailey v. Johnson. under seal, nor how it was modified, nor whether the labor or materials were used by Ogden, or his agent, or the original con- tractor, in the erection, alteration, or repairing of the building. Laws 1851, p. 954, 3; Walker v. Paine, 2 E. D. Smith. 663. (4.) It does not state that within six months after the per- formance of such labor, &c., Bailey served a notice in. writing on the county clerk, specifying Ogden as one of the persons against whom his claim was made. Laws 1851, p. 954, 6 ; Beats v. Congregation Benai Jeshurun, 1 E. D. Smith, 654. (5.) It does not. state that at the time of filing the notice of lien, Ogden had any right, title, oj" interest in the premises ; nor that Burton, Beman, or Johnson, the ^nly parties named in said notice, had any right, title, or interest in said premises. Laws 1851, pp. 953, 954, 1, 6. (6.) The claimant, by his own show- ing, had no valid lien, the premises having been previously' conveyed to Leeds. And his contract was made, and work done, after such conveyance was recorded. (7.) Plaintiff's lien, if any was created, expired when judgment was rendered iu this action. Laws 1851, p. 956, 9 and 12, and see 3 Corn- stock, 305. Sullivan v. Brewster, 1 E. D. Smith, 682. II. The motion to amend was in the discretion of the Judge, and is not ground of exception. To sustain an exception for a refusal of the Judge at the trial to allow an amendment of the complaint, the party must show a clear case of unquestionable right. Roth v. Schloss, 6 Barb. 308 ; Brown v. McCune, 5 Sand. 224. The defects are not amendable. The complaint cannot be amended without changing the form of action. Ogden cannot be reached without an action to set aside the deeds, which this is not, and it cannot be changed into such an actioi). Leeds would be a necessary party. Foster v. Poillon, 2 E. D. Smith, 556 ; Quimby v. Sloan, ib. 594 ; Sinclair v. Fitch, 3 E. D. Smith, 691 ; Peck v. Ward, 3 Duer, 64T. F. C. Castine, for other respondents. BY THE COUET. HILTON, J. I am convinced that it is im- possible, in any brief manner, to convey an intelligible idea of what the complaint in this action really is. As nearly as I can understand from the mass of rambling and incoherent matter witli which it is stuffed, the intent of the pleader was, to allege CG COUET OF COMMON" PLEAS. Bailey v. Johnson. that the defendants, Barton and Beman, being the owners of lot No. 7, 37th street, in this city, contracted with the defen- dant Johnson to do the carpenter work of the building erected thereon ; and Johnson employed the plaintiff to perform a por- tion of this work. Accordingly, between July 1st and Sep- tember 25th, 1857, work and materials were furnished by the plaintiff towards the building, amounting in value to $450. On September 28th, 1857, this sum being due and unpaid, the plaintiff filed with the county clerk of New York, a notice in due form, to constitute a lien on the premises under the sta- tute respecting mechanics' liens, passed in 1851, and the act amending the same ; claiming against Johnson, as contractor, and Beman and Burton, as owners. That a notice to them to appear and account and a bill of particulars had been duly served, according to the statute. It is then alleged, that Burton, who held the title to the pro- perty, had conveyed it, without any consideration, however, to one George Leeds, who, subsequently, at the request of Be- man, conveyed it to the defendant Ogden, to secure the pay- ment of certain moneys due to him from the defendant Dern- ing, who caused this conveyance to be made. That owing to these conveyances, and the fact that the title or record to the property not being in Beman, the plaintiff fears that unless Ogden and Deming are parties, it may be conveyed to some innocent, purchaser, and his lien endangered thereby. That Deming purchased with notice of the plaintiff's lien and claim, and Ogden is chargeable with like notice. Then, after stating that no personal claim is made against Bur- ton, Ogden, or Deming, judgment is demanded against John- son for $450 and interest. Also that the plaintiff may be declared to have a valid lien on the title and interest which Bur- ton and Beman had in the premises on September 25th, 1857, when the notice of lien was filed ; and that the same may be foreclosed and sold under decree of this Court, and the claims and rights of Deming and Ogden, under either Burton or Beman may be foreclosed as against the claim of the plaintiff; conclud- ing with a desire for further relief as his case requires. This, certainly, is a novel pleading ; and taken in connection with the admission made by the plaintiff's counsel on the argu- ment, that the conveyance to Leeds was made prior to the NEW YORK DECEMBER, 1859. 67 Bailey v. Johnson. filing of the notice of lien, that is, prior to September 28, 18,57, renders it somewhat doubtful as to what particular class of actions such a pleading belongs. The defendants seem to have met it by denying nearly every word in it, instead of demur- ring to it. But at the trial, the objection was taken, that it did not state facts sufficient to constitute any cause of action. In this view Judge DALY concurred, and he dismissed the complaint, declining to permit it to be amended, on the ground that it could not be done without changing the form of the action. The plaintiff then asked that he be permitted to prove his claim against the contractor Johnson, with a view to taking judgment against him ; but this also was refused. Exception having been taken to these rulings, the plaintiff asks for their review on this appeal. To determine as to their correctness, it will be necessary to see what facts are required to be alleged and proved in an action brought by a sub-contractor to enforce a lien claimed to have been acquired under the law of 1851, referred to in this complaint. The numerous decisions which thjs Court has made in respect to this law, show that to estab- lish a lien under it, by a sub-contractor, there must appear, 1st. That labor or materials have been furnished in the erection of the building in conformity with the contract made by the original contractor with the owner. 2d. That within six months thereafter, a notice in writing, under the 6th section of the act, claiming a lien for the work or materials thus furnished, has been filed with the county clerk. 3d. That at the time of filing the notice of lien, or subsequently, a payment was due, or has since become due, from the owner to the contractor, upon the original contract 4th. That the contracting owner had some interest in the property at the time the notice claiming the lien was filed. Foley v. Algcr, 4: E. D. Smith, 719 ; Cox v. Bro- derick, Id. 721 ; Dennistoucn v. McAlister, Id. 729 ; Ferguson v. Burk, Id. 760 ; Roberts v. Fowler, 3 Id. 632 ; Cunningham v. Jones, Id. 650 ; Cmklin v. Wood, Id. 662 ; Jackson v. Sloan, 2 Id. 616 ; Carman v. McLicrow, Id. 689 ; Foster v. Poillon, Id. 556; Doughty v. Devlin, 1 Id. 625; Sulli- van v. Brewster, Id. 681. Judged by these views of the requirements of the law, and assuming, as I think I must, that this action is to be regarded, not as one of an equity character, but as a proceeding to enforce a mechanics' lien by a sub-con- 68 COURT OF COMMON PLEAS. Bailey v. Johnson. tractor, it will be perceived that this complaint did not show a cause of action entitling the plaintiff to any relief whatever. Not only was the necessary allegation in respect to a payment being due from the owner to the contractor at the time of filing the notice, or that any payment had since become due, entirely omitted, but in addition, it is conceded that before the notice of lien was filed, the contracting owners had parted with all their interest in the property, and it is not intimated that Ogden, the present owner, did become such, otherwise than in entire good faith. Under such, a state of facts, it was impossi- ble for the plaintiff to have acquired any lien upon the pre- mises, and the complaint was therefore properly dismissed. Cox v. Broderick, 4: E. D. Smith, 721. Ogden could not, in the language of the complaint "be chargeable " with notice of the plaintiff's lien before any proceedings had been taken to acquire it ; and as it is not pretended that he was other than a l>ona-Jide purchaser of the property, I do not see how his inter- ests could be affected by any knowledge he might be " charge- able " with, in respect to the plaintiff's " claims." Sinclair v. Fitch, 3 E. D. Smith, 677 ; Crystal v. Flannelly, 2 Id. 5$3. And as no lien could be established upon the statements in the complaint, and the conceded fact already referred to, the plain- tiff was properly refused permission to correct his proceeding, which had originally been instituted under the law in question, into an ordinary action for the recovery of money against the contractor. Quiniby v. Sloan, 2 E. D. Smith, 594. But in addition to this, the application for leave to amend was ad- dressed to the favor of the Court, and its disposition is not the subject of review upon appeal. Hatfield v. Secor, 1 Hilton, 536. Judgment should be affirmed. DALY, F. J. I concur. BRADY, J. The plaintiff's claim is based upon the fact that Beman and Burton were, at the time of the contract with John- son, the owners of the lot mentioned in the complaint, and that they continued to be the owners in fact, down to the time of the commencement of this action, notwithstanding the convey- ances to Deming, Leeds and Ogden ; and this conclusion NEW YORK DECEMBER, 1S59. 69 Bailey v. Johnson. eeems to be predicated of the fact that Deming, Leeds and Ogden were not purchasers for a valuable consideration, and, with the exception of Ogden, were only the instruments of Be- raan and Burton employed to avoid the lien, having accepted their conveyances with full knowledge of all the facts and cir- cumstances alleged, and being privy to the design of Beman and Burton, and that as to Ogden, his conveyance was given to secure a debt, but was received with notice or knowledge, or that from some facts and circumstances he was legally charge- able with like knowledge. As one of the questions in cases based upon the lien law must necessarily be whether the person charged as owner is in fact the owner, I think the de- fendant has a right to prove that fact, however numerous the record evidences are to the contrary ; provided those evidences were created for the purpose of defrauding or defeating claims arising under that law. I think, however, that in this case the plaintiff has failed to make out a cause of action by his com- plaint, the averments of which do not present such a case as I have suggested. I think also, that when an appeal is taken from the refusal of a judge to permit an amendment of the pleadings, the contemplated amendment should be set out, to enable the reviewing tribunal to see clearly that no right has been violated. This the appellant has failed to do. The judg- ment for the reasons assigned by Judge HILTON must be af- firmed. Judgment affirmed. In this case, afcer judgment of affirmance, the defendants sought to tax their costs separately. The clerk allowed them to do so, and the Court at special term having determined that he did right, the plaintiff appealed. BY THE COURT. HILTON, J. This action was brought to foreclose a mechanics' lien against the defendant Johnson, as contractor, and the defendants Burton and Beman, as owners. Others were parties to the action also, but for the purpose of this appeal it is unnecessary to refer to them. Separate de- fences were interposed by the same attorney for the contractor TO COURT OF COMMON PLEAS. Bailey v. Johnson. and owners. On the cause being called for trial, application was made for a dismissal of the complaint, on the ground that it did not contain facts sufficient to constitute a cause of action. This view was concurred in by the Court, and the complaint was accordingly dismissed with costs. The clerk allowed to these defendants separate bills of costs, and the Court at special term having determined that he did right, the plaintiff appeals. On reflection I am satisfied that this allowance was erroneous, and ought not, under the peculiar circumstances of this case, to be sustained. The defendants having appeared by the same attorney, there was no necessity for their putting in separate defences, as the complaint was clearly insufficient to justify their belief that any recovery could be had upon the facts stated in it. Besides, they were not put to the trouble or^ expense of establishing their separate defences, and therefore cannot be said to have sustained that expense, for which costs ' are given as an indemnity. Code, Sec. 303. The complaint having been dismissed without any trial of the issues raised by the answers, seems to me to sufficiently establish the fact, that the defences were of a nature that could have been joined, as the only question presented at the trial would have arisen upon a demurrer interposed in their joint behalf. Jffatt v. Lindo, 8 Abbott JPr. R. 341. For these reasons, I think the order made by me at special term should be reversed, and the clerk directed to re-adjust the costs and allow but one bill to the defendants Burton, Be- man, and Johnson. Ordered accordingly. No costs of this appeal to either party. DALY, F. J., and BKADY, J., concurred. YORK DECEMBER, 1859. 71 Richards v. Vanderpoel. JAMES "W. RICHARDS v. JACOB YANDREPOEL. One who induces another to part with his property, " through fright and fear of being locked up," obtains no title, and the transaction is void. Actual imprisonment is not necessary to avoid such a transaction : fear of im- prisonment is enough. Where the arrest was illegal, and the transfer was made through fear of im- prisonment, either to settle a civil suit then pending between the parties, or to compromise the alleged felony, the result is the same, and no title passes. A charge that if the jury believed that the person arrested " voluntarily gave to the defendant the watch in question, then their verdict must be for the de- fendant," Held, error. The question how far the prisoner was affected by fear should have been submitted to the jury. It was not enough to submit to them whether the transfer was voluntary, as the prisoner might have acted voluntarily, though impelled by fear of imprisonment. APPEAL by plaintiff from a judgment of the Marine Court at general term. The principal facts are .these: One Kinshimer was the owner of a gold watch which he valued at $175 to $200. He was the agent for the defendant, and had collected rents for him. Kinshimer had failed to hand over a check which he had received for those rents, and the defendant commenced a civil action for the recovery of the debt. On the fifth day of December, 1857, the defendant, on an affidavit before a police magistrate, obtained a warrant for Kinsliimer's arrest, for hav- ing, as his servant, as alleged in the affidavit, embezzled a check for $350. Kinsheimer was arrested on the same day, and while on his way to the Tombs, the defendant asked him "to settle the matter." Kinsheimer deliv- ered his watch to the defendant, and was released by the 72 COURT OF COMMON PLEAS. Richards v. Vanderpoel. officer who arrested him. The criminal proceeding was not prosecuted. Kinsheirner testified that he " let the defendant have the watch through fright and fear of being locked up in the Tombs." Three days after, Kinshimer assigned the watch to the plaintiff in this action, who brought suit to recover its value, alleging that the same had been obtained by the defendant " by force, and duress of imprisonment." The plaintiff's counsel requested the Court to charge the jury the following propositions severally. 1st. If Mr. Kinshimer was arrested for improper purposes without just cause, and delivered the watch in question to Vanderpoel for his enlargement, the watch, under those facts, was delivered by duress of imprisonment, arid the plaintiff may recover its value in this action. 2nd. If Kinshimer was arrested for a just cause and under lawful authority but his arrest was procured by Yanderpoel for the purpose of obtaining the watch or obtaining a security for a debt, and Kinshimer delivered the watch to Vanderpoei for the purpose of procuring his enlargement the plaintiff has a right to recover the value of the watch in this action. 3rd. If the arrest of Kinshimor was illegal, and he, through fear, delivered the watch to Vanderpoel for any purpose, those facts constitute duress, and the plaintiff is entitled to re- cover. The Court thereupon charged the jury, and the following contains so much thereof as embraces the exceptions taken thereto : That the arrest of Kinshimer was illegal, that he was not a servant of the defendant, but an agent, an4 therefore he was not a servant within the words or spirit of the Statute ; that the Court was the sole judge of the law, as the jury were of the facts ; that the facts were few and simple ; and if the jury be- lieved Mr. Kinshiiner voluntarily gave to the defendant the watch in question, then their verdict must be for the defen- dant ; but if they find Kmshimer did not voluntarily deliver the watch to the defendant, then their verdict must be for the plaintiff. The plaintiff excepted to so much thereof as charged the jury, NEW YORK DECEMBER, 1859. 73 Richards v. Vanderpoel. that if Kinshimer voluntarily gave the defendant the watch in question, their verdict must be for the defendant. The Court refused to charge either of the foregoing requests, and as to each, the plaintiff excepted. 0. Bainbridge Smith, for appellant. jP. Byrne, for respondent. BY THE COURT. BRADY, J. The plaintiff's assignor, E. B. Kinshimer, was employed by the defendant as his agent, to col- lect the rent of premises on Madison avenue, in this city. On the fifth of November, 1857, as such agent, he received a check for three hundred and fiftydollars from the defendant's tenant, had it cashed, and used the proceeds in the payment of his own debts. On the fifth of December, 1857, having prior thereto endeavored to obtain payment of the sum named, from Kinshimer, and having commenced an action for the recovery thereof, the defendant also procured a warrant for his arrest on a charge of embezzlement, and upon an affidavit in which the defendant alleged that Kinshimer had acted as his servant in collecting rents, and had collected and embezzled the sum named. On the day the warrant was issued, the defendant and an officer named Spicer, proceeded to the vicin- ity of the residence of Kinshimer, where, about four or five o'clock P. M., he was arrested, almost immediately put into one of the Fourth avenue cars, and taken in that mode toward the Centre street prison, in custody of Spicer, and accompanied by the defendant. While thus in custody, and as he says, through fright and fear of being locked up in the Toinbe, he let the defendant have his watch. The testimony is conflicting as to the facts and circumstances attending the delivery of the watch, but it is not disputed that the watch was offered by Kinshimer to the defendant, and accepted by the defendant, while Kinsltmer was in custody under the warrant aforesaid, rind soon after his arrest. There is also evidence in the case tending to establish that the defendant accepted the watch only in part settlement, of the civil claim, without relinquishing, or expressing any intention of abandoning the criminal complaint. And it appears that that complaint after a hearing before the 74 COUET OF COMMON PLEAS. Richards v. Vanderpoel. magistrate who granted the warrant, was by him dismissed. The judge in the Court below charged the jury that the arrest was illegal, inasmuch as Kinshimer was the agent, and not the servant, of the defendant, within the meaning or spirit of the statute defining or declaring the crime of embezzlement, but that if they believed that Kinshimer voluntarily gave the watch to the defendant, the defendant was entitled to a verdict; if they believed he did not voluntarily deliver it to the defendant, then their verdict must be for the plaintiff. To the charge there was but one exception which was taken by the plaintiff, and to that part of it in which the jury were instructed, that if the watch was voluntarily given, the verdict must be for the defendant. The plaintiff's counsel, however, made three requests of the Court to charge as follows : 1. If Mr. Kinshimer was arrested for improper purposes without just cause, and delivered his watch in question to the defendant for his enlargement, the watch under those facts was delivered by duress of imprisonment, and the plaintiff may re- cover its value in this action. 2. If Kinshimer was arrested for just cause and under lawful authority but his arrest was procured by the defendant for the purpose of obtaining the watch, or obtaining from him security for a debt, and Kinshimer delivered the watch to the defendant for the purpose of procuring his enlargement the plaintiff has a right to recover the value of the watch in this action. 3. If the arrest of Kinshimer was illegal, and he, through fear, delivered the watch to the defendant for any purpose, those facts constitute duress, and the plaintiff is entitled to recover. The Court refused to charge either of these requests, and as to each refusal the plaintiff excepted. The jury found for the defendant. It is said by BULLER (Nisi Prius, 172), that if duress be pleaded, the deed is admitted, and the issue lies upon the defendant ; and that it is sufficient if it appear that the arrest, though for a good debt, was without good authority. And in Richardson v. Duncan, (3 N". Harnp. 508), it was held that an arrest for a just cause, and under lawful authority, if it be made for unlawful purposes, may be constituted as a NEW YOKE DECEMBER, 1859. 75 Richards v. Vanderpoel. duress so as to avoid a contract which the party made for his deliverance. (See also Severance v. K'nnball, 8 N. Hamp. 386.) The same general doctrine is also declared by PARSONS, C. J., in Walkins v. Baird (6 Mass. 511), and is approved in Foshay v. Ferguson (5 Hill, 157). In Cost v. Phillips, reported in 2 Leg. Obs. 302 (a case in the Exchequer), Phil- lips was arrested for embezzlement, and, having been taken before a magistrate, he executed jointly with one Sparks, who was his father-in-law, a bond to the plaintiffs for the amount of the moneys embezzled. Mr. Lawston, who acted as the plaintiff's attorney, told the defendants that they were not to consider there was any agreement that the plaintiffs should forego the prosecution against Phillips, but he could say that Sparks did not understand that the consequence of giving the bond would be that the prosecution should be relinquished. Lord ABINGER said to the jury that the plaintiff's attorney saying when the bond was executed, that it was not to be con- sidered as an agreement not to press the charge against Phillips, did not alter the nature of the transaction. The ques- tion was, what the parties intended. If the jury believed that the plaintiff meant, upon getting the bond, to forego the prose- cution against Phillips, and that Sparks signed under that belief and expectation, the consideration of the bond was illegal, and the jury ought to find a verdict for the defendants. But, as said by Judge BBONSON (in Fosliay v. Ferguson), in the view we are now taking of the case, the imprisonment was unlaw- ful, and there never was a doubt that a contract obtained by such means might be avoided. This case would seem, also, to be different from the cases generally which relate to this sub- ject, inasmuch as though no felony in fact was committed, the basis of the charge against Kinshimer was an actual indebted- ness to the defendant, for which the defendant had commenced a civil action. To the extent of there being a bona fide, undis- puted claim, the case of Cost v. Phillips (supra}, seems to be the same as the case in hand. If the arrest in this case was made to procure a settlement of the claim against Kinshimer, then I have no doubt that on the principle of the cases referred to, the watch was improperly obtained, and no title to it passed by its delivery to the defendant. Lord COKE says that fear of imprisonment is enough, and as illustrated by BKONSON, J., in 76 COUET OF COMMON PLEAS. Richards v. Vanderpoel. Foshay. v. Ferguson (supra), the rule has been so under- stood since the time of COKE! If the imprisonment appre- hended had been that which would have followed arrest on civil process, it might be said, in the absence of violence, that the settlement contemplated was just, and should not be dis- turbed. The creditor would then be exercising a right given by the law of the land, but such is not the case here. The imprisonment feared was one following an arrest upon process which was not issued to enforce the payment of the claim, but to punish for an offence not committed, and on a charge which could not be sustained. The fears excited were those induced by this process, thus unlawfully obtained, and all the circum- stances disclosed by the evidence rendered it the right of the plaintiff, in my opinion, to have the third request complied with. If the arrest of Kinshimer was illegal, and he, through fear of imprisonment, gave his watch to the defendant, either to compromise the alleged felony, or to settle the civil suit, the result is the same. No title passed, and the plaintiff was entitled to recover. The question how far Kinshimer was af- fected by fear should have been submitted to the jury. It was not enough to submit to them whether Kinshimer voluntarily gave the watch to the defendant. He might have voluntarily done so. impelled by fear of imprisonment. The defendant's position was a false one. Kinshimer was in his power by pro- cess improperly obtained, and he could not avail himself of that position, or anything resulting from it. It was a mistake of the defendant's, doubtless, but everything derived or result- ing from it while Kinshimer was under that influence, should not be permitted to continue. Whether he was under that influence should have been submitted to the jury. For these reasons, I think the judgment should be reversed. Judgment reversed. NEW YORK AUGUST, 1860. 77 Montegriffo v. Musti. PHILLTPPO MONTEGRIFFO v. FELICE MUSTI, YINCENZO SQUARZA, and SALVATOBE CABO. An undertaking given pursuant to section 209 of the Code of Procedure, in an action of claim and delivery of personal property, conditioned for a re- turn of the property, if a return should be adjudged, and for the payment of such sum as should, for any cause, be recovered against the plaintiff in the action, is substantially one for the payment of money. And an action against the sureties in such undertaking, is an action arising on contract within section 129 of the Code, and a summons for a money de- mand, in such an action, is proper. APPEAL by the defendant from an order made at Special Term denying a motion made by the defendant Caro to dis- miss the complaint on the ground that it did not comply with the summons. The notice inserted in the summons states that the plaintiff, on a failure to answer, on the part of the defendants, will take judgment for a specific sum. The complaint served set forth a cause of action against the defendants upon a bond or under- taking, made by the defendant Caro, as surety for another de- fendant, in an action to recover possession of certain personal property. It was claimed by the appellant that the summons should have been within the second subdivision of section 129 of the Code of Procedure to authorize the complaint served. Henry H. Morange, for appellants. A. C. Fransioli, for respondent. BY THE COURT. BRADY, J. The defendant Caro undertook and became bound to the plaintiff for the return of the prop- erty claimed and taken by Felice Musti, if a return thereof should be adjudged, and for the payment of any such sum as should, for any cause, be recovered against Musti in the action commenced by him, and in which the undertaking of Caro 78 COURT OF COMMON PLEAS. Montegriffo v. Musti. was given. The obligation assumed by Caro was twofold, namely to return the property taken by his principal, Musti, and to pay any amount that might, for any cause, be recovered against him, which covered the costs allowed by the statute, if Musti failed in the action, and the value of the property, if he failed to return it after judgment. The undertaking is sub- stantially one for the payment of money. The statute provides for the liquidation of the damages for the omission or neglect to return the property by requiring the jury to assess the value of the property, and thus the pecuniary obligation of the surety is determined in that respect, and the costs and allow- ance also allowed by statute determine the whole extent of the surety's liability. What is the plaintiff to recover, if the prop- erty be not returned ? He recovers its value. Has that been ascertained ? It has, and is not open to question. It is a thing determined. The principal has, then, neglected to return the property the sureties have neglected to return the prop- erty, and the plaintiff seeks to recover its valr.e. There can be no doubt of his right to this remedy. The Court has adjudged that the defendant Musti return the prop- erty taken by him, or pay two hundred dollars, which was its value ; and having neglected to return it, the plaintiff has re- covered that amount, and the costs in the action. This the sureties undertook, in express language, to pay, and the plain- tiff has stated all the facts necessary to establish his right to the amount claimed. Whether the defendants, the sureties, would have a right to return the property in diminution of the amount claimed by the plaintiff, it is not necessary to decide on this appeal ; but it is very clear that the undertaking of the defendant, Caro, was one for the payment of money on the failure of his principal, Musti, to return the property which he took, and that this is an action, in the language of section 129 of the Code, arising on contract, and for the recovery of money only. No other relief is demanded. The order appealed from should be affirmed, with ten dollars costs. NEW YOEK OCTOBEK, 1860. 79 Sorley v. Brewer. JAMES SORLEY and others v. HENRY C. BREWER and others. The master of a vessel has a lien upon the freight and earnings of the vessel for the voyage, for advances and personal responsibilities necessarily made or incurred by him, during the voyage, for .the safety of the vessel, and the successful prosecution of the voyage ; and this lien is assignable. A suit against a vessel in the United States Court for advances, is no defence to an action upon the lien of the master of the vessel on the freight, unless the plaintiffs had such lien at the time of the commencement of the action in rem. Where the plaintiff had made advances for the benefit of a vessel, and had taken an assignment of the master's lien on the freight therefor, and the owners of the vessel were insolvent, Held, a proper case for an injunction, and the appointment of a receiver to collect such freight, notwithstanding the allegations 'of the answer and affidavits showed that the defendants had chartered the vessel from the owner for such voyage. THE object of this action was to recover certain advances made by the plaintiffs for the benefit of the barque Conroy. The complaint and the affidavits set up, that the barque Conroy arrived at the port of Galveston, Texas, in a disabled condition, and that the plaintiffs, to enable her to continue her voyage, made advances to repair her, and pay certain neces- sary charges for the handling of freight, &c., with the under- standing with the master, that they should be subrogated to the lien of the master. The master and plaintiffs agreed to consign the vessel to the defendants upon their accepting a draft drawn by the master, to reimburse them. The defendants did not accept the draft, and the master thereupon declined to consign the vessel. It was further alleged, that the master being liable, assigned to the plaintiffs his lien on the freight for such advances, but that the defendants had refused to allow the plaintiffs to collect the freight, and under an alleged charter party from the owner, claimed, and were en- deavoring to collect the freight. The plaintiffs claimed that 80 COUKT OF COMMON PLEAS * Sorley v. Brewer. such charter party was void as against them, and prayed for a judgment for the freight actually collected by the defendants, and for ah injunction and receiver to collect such freight. It also appeared by affidavit, that the owners of the barque were insolvent. A libel had been previously filed against the barque, in the United States District Court. The defendants, by their answer, set up that the advances were made on the credit of the owner of the vessel, and not on the credit of the vessel ; that* the draft was drawn without autho- rity ; that the plaintiffs and the master knew of this charter party, and they denied the agreement with the master, charged in the complaint. They averred a violation of the master's agreement under the charter party, and denied that anything was due the master of the barque. They set up the defendants' charter party with its attendant circumstances, and their right to collect the freight under it. They further set up the libel in the United States District Court, against the barque, and an interlocutory decree in the proceedings there- under, in favor of the plaintiff. The following opinion was given at Special Term. HILTON, J. It appears that the barque Conroy, commanded by Abner Cornell, master, arrived at Galveston, Texas, on her voyage from New York, in a disabled condition, needing repairs and supplies ; and requiring money wherewith to pay charges on cotton for transportation from the interior to the coast, and which payment was necessary to enable her to ob- tain such cotton as freight. The plain tiffs, were merchants at Galveston, and on the appli- cation of the master, made the necessary advances for those purposes, by means of which the vessel obtained freight upon her homeward voyage to New York, amounting to $2,130. The amount thus advanced by the plaintiffs was $3,971 43, about $1,000 of which was applied in the payment of the charges upon the cotton which was obtained by the barque for freight: After the arrival of the barque at this port, and by writing dated April 8th, 1859, the captain assigned and transferred to NEW TOEK OCTOBER, 1860. 81 Sorley v. Brewer. the plaintiffs all the freight, money and earnings of the vessel npon the voyage, and all lien and interest which he as such master had hereto, for or on account of such advances, or of his liability therefor, as collateral security for the repayment to the plaintiffs of the sums thus advanced by them. The owners of the vessel being insolvent, the plaintiffs aver that they will lose their advances unless they can be protected by a lien on the freight for the advances so made to the cap- tain to enable him to obtain it, and a a Court of Equity, we are asked to enforce this lien thus acquired through the captain, for the benefit of the plaintiffs, by appointing a receiver to col- lect the freight, and restraining the defendants from interfering with it. In opposition to this claim, the defendants insist that they are solely entitled to the freight carried by virtue of a charter party, dated December 10, 1858, entered into between them and the owner of the barque, by which the vessel was char- tered to them for the voyage in question. Under this charter party the defendants were collecting the freight, when this action was commenced, and an injunction against their further interference with it was granted. The plaintiffs now ask that this restraint be continued during the pending of this litigation, and that a receiver be appointed to collect the freight earned upon the voyage in question. On the argument of this motion many other facts of a minor character were presented, and many questions discussed, which I do not intend to refer to at this stage of the action, desiring that the parties at the trial may not be embarrassed by any view which might now be taken respecting them, and believ- ing that the present application should be disposed of on the fycts here narrated. Nor is it material that tho second defence set up in the de- fendants' answer should be passed upon further than to remark that it does not appear that at the time of filing the libel in the District Court by the plaintiffs, against the vessel in rem, claiming a lien for the same moneys which are, in this action, attempted to be collected as a lien upon the freight, that the defendants possessed, by assignment from the captain, his lien r 6 COURT OF COMMON PLEAS. Sorley v. Brewer. as master of the vessel, for indemnity for the personal respon- sibility incurred by him as such master in a foreign port. It therefore cannot be said that the plaintiffs might have en- forced the lien, now claimed in that proceeding, because it is not shown that they possessed any claim to it when that pro- ceeding was instituted. That the master had a lien upon the freight and earnings of the vessel for the voyage, in respect to his advances and personal responsibilities necessarily made or incurred by him while at Galveston, for the safety of the vessel and the successful pro- secution of her homeward voyage, I think cannot be doubted. Van BoTcMin v. Ingersoll, 7 Cow. 670 ; S. C. 5 Wend. 315 ; Lewis v. Hascock, 11 Mass. 72 ; Ship Packet, 3 Mason, 255 ; 3 Kent, 167, note 2 ; Parson's Mercantile Law, 381. And this lien thus given by law is capable of being assigned by him so as, to vest in the assignee the same rights which he possessed by reason of it. Jewett v. Coffin, 20 "Wend. 603 ; Judah v. Kemp, 2 John. Cases, 418. The plaintiffs, therefore, occupy the same position before the Court as the captain or master, and in an action against par- ties claiming to collect the freight under color of right acquired through a charter party, made with the owner of the vessel, an injunction is sought pending a litigation in which the rights of the respective claimants are to be determined. I think the circumstances shown are such as justify me in granting the motion. It cannot be that a master's lien thus acquired can be ' divested by the owner of the vessel, by any means short of ac- tual satisfaction by payment, and to so hold, would be in effect, declaring a lien to exist which at any moment might be evaded at the will of the owner. The injunction will, therefore, be continued, and a receiver appointed. From this decision the defendants appealed to the General Term of this Court. Jeremiah Larroque, for the appellants. Martin & Smiths, for the respondents. YOR AUGUST, 1860. 83 Butt v. Peck. BY THE COUBT. BEADY, J. It is unnecessary to state any- thing in addition to the reasons assigned by Judge HILTON, at special term. The lien of the master being unquestionable on authority, the injunction was properly continued. The defen- dants are mistaken in supposing that by granting the injunc- tion against the defendants, the plaintiffs are at liberty to col- lect the freight money at leisure. The order provides for the appointment of a receiver to collect, and according to well- settled rules, the receiver must hold the fund collected subject to the order of the Court. The order at special term should be affirmed, with $10 costs. EGBERT McC. BUTT, Receiver, <&c., v. EDWIN PECK, Assignee, &c.) and WILLIAM EL BLASHFOBD, and others. A direction to the assignee in an assignment for the benefit of creditors, to pay first all the just and reasonable expenses, costs and charges, and commis- sions of executing and carrying into effect the assignment, " and all reason- able and proper charges for attorney and counsel fees respecting the same," does not render the assignment void. [The case distinguished from Dunham v. Waterman, 17 N. Y. 9.] The assignment directed the assignee to pay all debts due or to grow due, re- ferred to in Schedule A. The schedule contains the names of two creditors with words, " amount due him for services," annexed, but omitted to state the amounts due to them, Held, that the omission to specify the amounts of the debts in the schedule, did not avoid the assignment. The words " debts to grow due," although objectionable, may be understood to mean claims which have not matured, but which are capable of being readily understood. APPEAL by the plaintiff from a judgment dismissing the com- plaint on the trial. This action was Drought by the plaintiff, as receiver of the 84 COURT OF COMMON PLEAS. Butt v. Peck. defendants, Blashford, Clark, and Hall, appointed in supple- mentary proceedings at the instance of certain creditors, to set aside an assignment made by Blasliford, Clark, and Hall, for the benefit of their creditors. The parties having rested, the cause was submitted to the judge (BRADY, J.) who found as a conclusion of law, that the assignment, and all the trusts and provisions therein contained were good and valid. The reasons for his decision are given in the following opinion. BRADY, J. The provision in the assignment by the defen- dants in this case directing the assignee first to pay all the just and reasonable expenses, costs, and charges, and commissions of executing and carrying into effect the assignment, " and all reasonable and proper charges for attorney and counsel fees respecting the same," does not render the assignment void ; the expenses of the trust are usually provided for by the assign- ment, and when they are not, the assignee is authorized to retain out of the moneys that come into his hands enough to pay them. Noyes v. Blakeman, 3 Sand. S. C. 531 ; Clarlc v. Hoyt, 8 Iredell Equity, 222 ; Egbert v. Brooks, 3 Harrington (Del), 110 ; Hill on Trustees, 570 ; Lewin on Trusts, 450 ; Webb v. Shaftesbury, 1 Vesey, 480 ; Brocksopp v. Barnes, 5 Mad. Ch. Rep., 90. And the fees of the counsel 'for services in suits, or for advice in the general management of the trust are properly embraced in the item of expenses. Fearns v. Young, 10 East, 184 ; Jones v. Stockett, 2 Bland., 417 ; N'oyes v. Blakeman, supra. An assignee may in most cases screen himself against mistake, or where he is in doubt as to the line of his duty, by taking the advice of counsel, and for reason- able fees for such advice he will be allowed in his account. Jones v. Stockett, 2 Bland., 409. The protection of the assigned estate may often render it necessary to consult and to employ counsel, arid the sums paid in such cases should be allowed to a reasonable extent, in all cases where it appears that any necessity induced such consultation or employment, or that cir- cumstances existed which justified the expenditure. The com- pensation of assignees is limited, and the courts have not yet declared that they should appropriate it to the payment of expenses necessarily incurred in the discharge of their duty. NEW YORK AUGUST, 1860. 85 Butt v. Peck. An assignee cannot, it is true, charge counsel fees for services rendered in that capacity by himself, and it is also true, that a provision thereto would render the assignment void. Nichols v. McEwen, 21 Barbour S. C. Rep. 65. It was said on the, trial of this case that Nichols v. McEwen applied to all cases where the assignment provided for counsel fees, but such is not the fact ; the decision rests upon the facts that the assignee was a counsellor-at-law, and that the allowance of counsel fees was made to him by the language of the assignment. (See opinion of Justice Denio, in Court of Appeals on the affirmance of the judgment of the Supreme Court.) The provision, therefore, in the assignment of the defendants is in fact a direction to the assignee to employ a right, recognized and enforced in courts of justice, viz. : To deduct reasonable and proper charges paid for attorney and counsel fees, respecting his trust. (See Statute of 1858, chap. 314, extending powers of assignees.) It is also said, that the assignment is void, because it provides for the payment of a debt, the amount of which is left blank in the schedule. The debt is thus stated : " William Fullerton, amount due for services and counsel, fees." I cannot discover on what principle such an omission as here complained of should vitiate an assignment. The exact sum is not stated, it is true, but the direction is to pay the sum due, whatever it may be, and it is capable of being ascertained without diffi- culty. In Hawley v. Wall, 1 B. & A., 103, it appeared that the plaintiff signed a composition deed, but did not put the amount of his debt opposite his name at the time of his execu- tion of the deed. He desired the person who presented it to come the next day ; on the next day he refused to state the amount, and to be bound by the agreement. Lord Ellenborough held, that the deed being executed in blank, it was executed for the amount of plamtiff 's debt, whatever it might be. This principle applied to the case in hand, makes the provision good. The preference was for the amount due, and though that amount might be the subject of difference on the settlement of the accounts of the assignee, it cannot reasonably be regarded as furnishing a fatal objection to the validity of the assignment. I think the proposition for these reasons untenable. It was also said that the reservation by the assignors of any surplus ren- 86 COURT OF COMMON PLEAS. Butt v. Peck. dered the assignment void. The provision in this respect secures the surplus after the payment of all the debts of the assignors in full, and if no such reservation were made, it would follow . as matter of law. After the payment of all the debts of the assignors, the surplus belonged to them, and should be handed over as matter of course ; but if the assignment only relates in this respect to the copartnership debts of the assignors, it is not necessarily fraudulent as to individual creditors of the dif- ferent members of the firm. Bogart v. Haylet, 9 Paige, 296. The appropriation of the whole of the copartnership property to the payment of the joint debts seems to be a proper and equitable disposition of it. The defendants are entitled to judg- ment. The defendants then appealed to the general term. C. Bairibridge Smith, for appellant. Shea (& ^Richardson, and Joshua Jtf. Van Cott, for respon- dents. BY THE COURT. BEADY, J. I adhere to the opinion expressed at special term in relation to that clause of the assignment which provides for the payment by the assignee of the just and reasonable expenses, costs, and charges, and com- missions of executing and carrying into effect the assignment, and all reasonable and proper charges for attorney and counsel fees respecting the same. I deem it proper to say, in addition, that the case of Dunham v. Waterman, 17 N. Y. Rep. 9, was not published when that opinion was written, and that I consider this distinguishable from that case. The assignees of Waterman were authorized to pay any such sum or sums of money, as they might find proper and expedient, in and about the man- agement of the assigned estate, or payment of the hands em- ployed, or to be employed in or about the same, or in the bus- iness of completing the manufacture of any of the said prop- erty, or fitting the same for sale, or of working up materials, &c., so as to realize the greatest possible amount of money therefrom, as in the judgment of the said assignees shonld seem most advisable, and it was said of that provision, that it vested in the assignees a discretionary power, the exercise of NEW 'YORK AUGUST, 1860. 87 Butt v. Peck. which could not be interfered with except for fraud or want of good faith on the part of the assignees. No discretionary power is given to the assignee in this case. He is directed to pay charges and expenses which have been recognized and allowed in similar trusts, it being a condition precedent to such payment however, that the expenses shall be reasonable and proper, and as they are to be reasonable and proper>they are sub- jected to the scrutiny of the courts of justice, and not alone to the judgment and discretion of the assignee. In Dunham v. Water- man the assignees were granted authority to deal, to some extent at least, with the assigned estate as if it were their own, and the discretion as to the manufacturing was one absolutely con- ferred, and over which, in the absence of fraud or want of good faith, the Court could exercise no power. The discretion was unusual, and in contravention of well settled principles. Not so however the discretion to pay expenses and counsel fees which were always incidental to, and formed a part of, the trust. When the assignor directed and authorized the assignee to manufacture, he authorized an act which would lead to delay, and which had never been tolerated by the courts, although upon a proper application, the assignment being silent on the subject, the courts might permit the assignee to convert mate- rial of the estate, as suggested in Dunham, v. Waterman. In this case no rule of law was contravened. No application for leave to pay expenses would be necessary. The amounts disbursed by the assignee in that respect would be matters of accounting, and therefore, when the assignors directed the assignee to pay such expenses and charges, they merely declared a right incidental to assignments settled and estab- lished by precedent, practice and authority. This position does not, therefore, " overlook the distinction between a duty imposed by law, and a power conferred by an individual." I do not agree either to the proposition that the clause in the assignment which relates to schedule " A.," makes the assign- ment void. I think the objectionable language, " debts to grow due" used therein, must be understood to mean claims that have matured, and resting either on notes, bonds, or other obliga- tions, or upon credits which had not expired, and which were easily and readily capable of being ascertained. In other words it is a direction to pay Child and Fullerton their claims against 88 COUKT OF COMMON PLEAS. Butt v. Peck. assignors, existing at the time of the assignment, and not to pay them for services to be subsequently rendered, either to the assignee, or to the assignors. The assignee had already been authorized to pay all reasonable and proper charges, for attorney and counsel fees respecting the assignment. He was not directed to employ either Child or Fullerton, and the coun- sel not being named by the assignors, could be selected by the assignee at pleasure. That this view is correct appears to me conclusively from the schedule "A," in which, although the amounts are left blank, the direction is to pay, " Asa Child, amount due him for services, counsel fee and costs," and " Wil- liam Fullerton, amount due him for services performed" I see nothing in this feature of the assignment which would prevent the courts from interfering with the assignee. It is very clear that the amounts left in blank could be easily ascertained, and that if the creditors, Messrs. Child and Fullerton, refused or neglected to furnish them, the assignee could not for that rea- son be arrested in the performance of his trust. Those cred- itors would have to take the responsibility of refusing, or neg- lecting to present their claims upon a proper application by the assignee. I think for these reasons, that the judgment should be affirmed. I agree with Judge HILTON in the general views expressed by him as to the result of the cases arid the policy of the law, but I think the assignors in this case have not encountered any of the principles which have been fatally applied to assignments. DALY, F. J. I agree with Judge BRADY, that there is noth- ing in this assignment that would warrant us in declaring it fraudulent and void. There is nothing in the provisions relied upon as having that effect, that would bring them within the reasons laid down by the Court of Appeals for their judg- ment in Nicholson v. Leavitt, and Dunham v. Waterman. HILTON, J., dissented. Judgment affirmed. NEW YOBK FEBRUARY, 1860. .89 Honegsberger v. Second Avenue R. R. Company. DANIEL HONEGSBERGER v. THE SECOND AVENUE R. R. COMPANY. In determining what would or would not be negligence on the part of a child six years of age, it is not to be understood that a child of that age is to be held to the same degree of caution, foresight and discretion that would be exacted from an adult. If a child exercises the caution of one of its years, that is all that can be re- quired of it. More would be impossible, and the law does not exact an impossibility. A request to charge that it is negligence on the part of a parent to allow a child six years old to go alone in the streets, Held, properly refused. * APPEAL from an order of the special terra denying the de- fendant's motion for a new trial, and from the judgment en- tered in the action in favor of the plaintiff. The action was brought to recover damages against the defendants for the negligence and carelessness of the driver of one of their cars, by which the infant son of the plaintiff, aged about six and a half years, while returning from school, was run over by defendant's car, and his arm so crushed that ampu- tation became necessary. Judge DALY charged the jury as follows : " This action is brought by the father of the injured boy, to recover pecuniary satisfaction for the loss which he, the plain- tiff, has sustained, by reason of the accident. It is not for the pain and suffering of the child, nor for his prospective services. " It is necessary for the plaintiff to prove that the injury was produced by the negligence of the defendants by their exclusive negligence and that the boy's negligence did not contribute to it. But in determining what would or would not be negligence on the part of the boy, it is not to be under- stod that a child of the age of the boy is to be held to the same degree of caution, foresight and discretion that would be exacted from an adult. If the child has arrived at an age in which his parents, in the exercise of a sound discretion, aro 90 COUKT OF COMMON PLEAS. Honegsberger v. Second Avenue R. R Company. justified in permitting him to go to school alone and unat- tended ; if they are chargeable with no negligence in suffering him to do so, the child, while in the public streets, is to be held only to the exercise of that caution and discretion of which children of his age are presumed to be capable. If he does that, it is all that the law can require. There may be cases in which an adult, in going through, or in crossing the public street, would be expected to exercise a degree of discretion and judgment, in respect to the safety of his person, or to avoid accidents, which could not, to the same extent, be expected from a child, though he had arrived sufficiently at years of discretion to justify his parents in allowing him to go into the public streets alone, especially in going to and from echool. Where parents cannot be held chargeable with negli- gence, in permitting a child to go unattended into the public streets, the law will hold the child bound to the exercise of care and caution, to the extent of its capacity that is, to the same care, caution, and judgment that would be expected in those of the same age ; and if, in the view of the law, you are of opinion that the boy was guilty of negligence, and that that negligence contributed to the accident, the plaintiff cannot recover. " The recovery of the plaintiff, if any, must be limited to his actual expenditures, nurse's bill, doctors' bills, &c." The defendant's counsel thereupon duly excepted, and re- quested His Honor to charge that it was negligence on the part of the plaintiff to allow his son, a lad of six years of age, to be in the crowded streets of the city without a protector ; but the judge refused so to charge, and the counsel excepted to such refusal. The jury thereupon found a verdict for plaintiff for $869 50. The defendants moved for a new trial on a case made, which motion was denied, and defendants appealed. Waldo Hutchins and John H. Plait, for appellants. Andrew Boardman^ for respondents. BY THE COUBT. HILTON, J. We think this case was pro- perly left to the jury, and that the charge of the judge is not NEW YORK FEBRUARY, 1860. 91 Smith v. Applegate. "open to any objection. When the law considers a child to be of sufficient maturity to go alone in the public streets (2 Rev. Stat. 5th Ed. 165, 266), it certainly cannot require any greater caution or prudence from it than its age will justify. If, therefore, the child exercises the caution of one of its years, that is all that can be expected of it. To desire more would be to require it to have the judgment of a person of ma- ture years ; and as this would be impossible, the proposition is conclusively answered by saying that the law does not exact an impossibility. Order affirmed. CALVIN W. SMITH v. JOSEPH APPLEGATE. A creditor is entitled to apply money received by him to either or any of the separate debts due to him from the person making the payment. The acceptance of a note or bill made by a third person, on a precedent debt, affords no presumption in favor of the debtor, but leaves the onus of proving that it was taken in absolute payment, upon him. , But the acceptance of such a security suspends the creditor's right to sue upon his original claim, until the maturity of such security. THIS action was brought in the District Court, for the Fourtli Judicial District, upon a promisory note for one hundred dollars. The defendant answered, alleging that the note was an accommodation note, made for the benefit of James L. Cheeseman, and that it had been paid. Upon the trial, it aj> peared that Charles B. Tappan, had procured from the plaintiff, for James L. Cheeseman, upon this note andCheeseman's post- dated check, two hundred and ten dollars ; that the c]ieck had been paid, and the note protested. That Tappan had also bor- rowed from plaintiff for Cheeseman, five hundred dollars, upon 92 GOUKT OF COMMON PLEAS. Smith v. Applegate. two checks of Cheesemau's, which were not paid. That Tappan, still acting as Cheeseman's agent, had thereupon given a note of the New York Ice Company for five hundred and twenty-eight dollars and seventy-one cents, and eighty dollars in cash, and took up the two dishonored checks, and that the note of the Ice Com- pany had still some time to run. The evidence was conflicting as to whether this note and the eighty dollars in cash was in payment, or as collateral for all the protested paper, including the note in suit, or only of the debt secured by the two last mentioned cheques. Judgment was given for the defendant, and the plaintiff ap- pealed to this Court. William J. Huff^ for the appellant. I. There being no evidence that the note was an accommo- dation note, the law raised the presumption that the same was a bona fide note, and the defendant was bound to rebut this presumption. II. There being no evidence of a payment having been made by the defendants, either in part or in whole, of the note, and the plaintiff being the owner of the note, the plaintiff was en- titled to recover the face of the note and interest. The eighty dollars was paid by Tappan, as agent of James L. Cheeseman, on a loan of five hundred dollars, and plaintiff, in absence of any direction, had a right so to apply the same, and there was no evidence that the eighty dollars was the defen- dant's money. Walther v. Whitmore, 1 E. D. Smith, 19. III. If plain tiff held the same as collateral, and his advances had not been paid, he was entitled to recover the face of the notes, he being for the purposes of the action, the owner and holder of the notes. Nantucket Pacific Bank v. Stebbins, 6 Duer, 348. BY THE COUET. BRADY, J. The plaintiff loaned to J. L. Cheeseman, the payee of the note in suit, or his agent, five hundred dollars, and such loan was made upon two post-dated checks, \ghich on presentment were dishonored. He also, prior to that transaction, purchased or discounted the note mentioned and a check for one hundred and seventeen dollars and fifty cents, NEW YOKK MAY, 1860. 93 Smith v. Applegate. and the note was also protested. When the note and checks were under protest in the hands of the plaintiff, Tappan, who obtained the money from him, paid to the plaintiff eighty dol- lars in cash, and delivered to him a note of the New York Ice Company, in payment, or as collateral, amounting to five hun- dred and twenty-eight, dollars and seventy-one cents, and which note, at the time of the trial, was not yet due. The plain- tiff did not return that note, nor did he offer to return it at the trial, although it was proved, and was not disputed, that the eighty dollars paid, and the note given to the plaintiff, were paid and delivered on account of the protested paper held by him. There can be no doubt of the plaintiff's right to apply the eighty dollars toward the payment of the last loan, and of his right to recover on the note sued upon, assuming such application to have been made by him, unless the acceptance of the note for five hun- dred and twenty-eight dollars and seventy-one cents, operated as a suspension of his right to prosecute the orginal indebtedness. Such in my judgment was the effect of the receipt of that paper. The acceptance of a note or bill made by a third per- son on a precedent debt, affords no presumption in favor of the debtor, but leaves upon him the onus of establishing that it was agreed to be taken in absolute payment (Noel v. Murray, 3 Kernan, 167), but until such security is due, the party receiv- ing it is bound to perform all the duties of holder or indorser, as may be, and his right to sue upon his original claim is sus- pended. Chitty on Contracts, 979, and cases cited ; Putnam v. Leiois, $ John. Rep, 389 ; Copper v. Powen^ Authon, N. P., 68. The plaintiff had advanced seven hundred and ten dollars, and had been paid .one hundred and seventeen dollars and fifty cents ? and eighty dollars, making one hundred and ninety-seven dol- lars una fifty cents, which, deducted from the amount loaned, or from the seven hundred and seventeen dollars and fifty cents, left a balance which was covered by the note of the Ice Com- pany. It is true that the note in controversy, was, with the check of one hundred and seventeen dollars and fifty cents, purchased by the plaintiff, as he alleges, and that this would make his claim seven hundred and seventeen dollars and fifty cents as above, and it is also true, that from his statement of the trans- 94: COURT OF COMMON FLEAS. Smith v. Applegate. action, it would seem that he received the note of the Ice Company as collateral for the loan of live hundred dollars only ; but Tappan, who negotiated, the loan, and made the sale, stated that the note of the Ice Company was handed over with the eighty dollars upon the protested paper, and which protested paper included the note in action. This is not denied by the plaintiff, and having accepted from Tappan a security sufficient to cover the whole indebtedness to him, arising upon the note of the, defendant and the loan of five hundred dollars, his right to sue upon the original indebtedness was suspended until that security matured. I am conscious that the testi- mony does not show clearly that Tappan was acting for Cheese- man in obtaining the loan of five hundred dollars, although the appellant concedes the fact in his points, but it was made upon checks drawn by the latter, to whose order the note of one hundred dollars was also made payable, and Tappan was the acting man, and Cheeseman the debtor in both transactions. If the fact be material,' the judgment of the justice decides it in favor of the defendant, but I do not so regard it. If the note of the Ice Company was deposited only to secure the payment of the balance of the loan of five hundred dollars, the plaintiff should have so stated, and his omission to do so justifies the conclusion that the converse was the fact. For these reasons I am opposed to the reversal of the judgment, and think it should be affirmed. PALY, F. J., concurred. HILTON, J., dissented. Judgment affirmed. NEW YOKE MA 5T, 1860. 95 Sperling v. Levy. MAKE SPEKLING v. MOKBIS LEVF and CHARLES TKIGLEE.* It is not necessary that the undertaking given upon obtaining a stay of ex- ecution under section 356 of the Code, should also embrace the undertaking required by section 354 to perfect an appeal from a District Court. In an action upon an undertaking given under section 356 of the Code, to obtain a stay ef execution, after an appeal and affirmance, it is not proper to inquire at the trial whether or not the appeal had been perfected by the filing of the undertaking prescribed by section 354 of the Code. It is sufficient that the undertaking sued upon is in pursuance of a statute requirement, that it was in the form prescribed thereby, and that it was given in a case contemplated by the statute. It is sufficient to establish the plaintiff's right to reover in such an action, to prove the undertaking entered into by the defendants, the rendition of the judgment therein referred to, and the sheriff's return of the execution issued upon the judgment unsatisfied. It is no defence that the execution issued .upon the judgment in the justice's court was returned before the expiration of the sixty days. The reasons which may have induced the sheriff to make such a return, or whether it was made upon the request of the plaintiff in the action or not, are entirely immaterial, and not the subject of inquiry in such an action. The acts of a sheriff in the return of a process, so far as the rights of parties are concerned, must be taken as true when they arise collaterally, and can only be impeached by direqt proceedings, to which the officer is a party ; or rectified upon a summary application to the court to correct or set aside the return. APPEAL by the plaintiff from a judgment of nonsuit against him in the District Court of the Second Judicial District. The action was brought upon an undertaking in the form prescribed by section 356 of the Code of Procedure, given upon obtaining a stay of execution. The justice before whom the case was tried admitted testimony tending to show that after an appeal had to the Court of Common Pleas, and an * Sperling v. Levy, 10 Abboti's Pr. R. 446, is another proceeding in this case. 96 COUKT OF COMMON PLEAS. Sperling v. Levy. affirmance of the judgment, the execution which was issued in that action, and for the stay of which the bond in suit was given, was returned unsatisfied before the expiration of sixty days. On this evidence, he dismissed the complaint, and judg- ment was rendered for the defendants. The plaintiff appealed to this court from such judgment. S. jff. Nolle, for appellant. Philip Levy, for respondent. BY THE COURT. DALY, F. J. The undertaking upon which the action was brought, was in the form prescribed by the 356th section of the Code, the effect of which is to stay execu- tion. It was not necessary that the same instrument should also embrace the undertaking required by section 354 to per- fect an appeal. That undertaking may be a distinct and diffe- rent instrument, with different sureties ; and from all that appears in the case r the requisite undertaking under the 354th section may have been given, and the justice would have had no right to conclude that it had not been given. It was sufficient that the undertaking sued upon was in pursu- ance of a statute requirement, that it was in the form pre- scribed thereby, and that it was given in a case contemplated by the statute. Slack v. Heath, 4 E. D. Smith, 95. All this was shewn upon the trial. The undertaking recite'd that the appellant intended to appeal to this court from the judgment rendered against him in the District Court of the Second Judi- cial District. It was shown by the production of the judgment record that the appellant did appeai to this court ; that the un- dertaking given by the defendant was filed in the court ; that the judgment of the Court below was affirmed upon appeal ; that execution 4 was issued against the appellant and returned unsatisfied, and the execution of the undertaking by the de- fendant was admitted by the answer. This was all that was necessary to establish the defendant's liability. Slack v. Heath, supra. It was no defence that the execution issued upon the judgment in the District Court was returned before the expiration of the sixty days. Wood v. Demikwn, 1 Hilton, 410. The agreement entered into while the appeal was pend- ing was not an agreement to return or discharge the appellant NEW YOEK MAY, 1860. 97 Sperling v. Levy. Levy, but for the payment of the amount of the judgment by installments, the first installment of which, $14, was paid by Levy to the plaintiff, arid was credited upon the execution issued after the affirmance of the judgment. It did not, therefore, ope- rate to the prejudice of the defendant Trigler, but was for his benefit. I can see no ground to warrant the justice in dismiss- ing the complaint and rendering judgment for the defendant, nor has any been snggested by the respondent. It did not ap- pear at whose request the execution was returned before the sixty days. A levy was made under it of property enough to satisfy it, but the property was claimed by one Collamer, whose claim was tried by the sheriff, and upon a finding in his favor, the sheriff returned the execution unsatisfied. After such a result, the sheriff might well return the execution, with- out waiting until the expiration of the sixty days. The witness who testified that he did not know at whose request the sheriff returned the execution before the sixty days, also testified that he knew that a notice had been given by the plaintiff's attor- ney to the sheriff, between ihejappeal and the affirmance, to re- turn the execution before the sixty days had expired ; but this could not refer to the execution upon the judgment of affirm- ance in this court, as it had not then been issued. The justice would not have been warranted in finding that it did,, when the witness had previously sworn that he did not know at whose request the execution issued upon the judgment of affirmance had been returned before the expiration of the sixty days* The judgment should be reversed. HILTON, J. I fully concur with Judge DALY that this judg- ment is erroneous, and should be reversed. The plaintiff estab- lished Jiis right to recover upon proving the undertaking entered into by the defendants, the rendition of the judgment therein referred to, and the sheriff's return of the execution issued upon the judgment unsatisfied. The reasons which, may have induced the sheriff to make such a return, or whether it was made upon request of the plaintiff in the action or not, were entirely immaterial, and not the subject of inquiry in an action like this. By 2 K. S. 410, sec. 77, sheriffs are required to execute and make due return of all process delivered to them, according to 7 98 COURT OF COMMON PLEAS. Sperling v. Levy. the command thereof, and for any violation of this provision they are liable to an action for damages, by the aggrieved party, in addition to such other punishment as the law author- izes ; and the general rule is too well settled to admit of any doubt, that their acts in the return of such process, as far as the rights of parties affected thereby or their privileges are concerned, must be taken as true when brought into contest collaterally, and can only be impeached by direct proceed- ings, such as those which make the officer a party, or rectified upon a summary application to the court to annul or set aside the return. Harrington v. Taylor, 17 East, 378;-Z?, from the said thirteenth day of July, 1855, he has frequently called the attention of the defendant to the said water,' and particularly to the injury resulting, as above stated, to the plaintiff's premises therefrom, and has fully acquainted him therewith, and has remonstrated against the conduct of the de- fendant, to him, personally, in permitting or suffering the said water so to damnify the plaintiff's property as aforesaid, and has requested the defendant to do something towards prevent- ing the same, and to fill up the sunken portion of the defen- dant's premises, or make some sort of drainage, or adopt some mode of getting rid of the said water ; and has offered himself, if permitted by the defendant, as a means of lessening the in- jury and annoyance to his (the plaintiff's) premises and property, to fill up the sunken portion of the defendant's pre- mises on the side towards the plaintiff's premises ; yet that the said defendant has neither done anything himself, nor caused anything to be done, nor permitted the plaintiff to do as he offered, towards or for the purpose of discontinuing the said injury to the plaintiff's premises and property, and preventing the same for the future, but has hitherto wholly omitted and neglected so to do, and has, during all the time last men- tioned, wantonly, wilfully, recklessly, negligently, wrongfully and maliciously kept and maintained the said nuisance upon his premises, to the serious detriment of the plaintiff, and with a full knowledge thereof." Special damages are then alleged, and judgment demanded. The grounds of defence appear fully in the opinion of DALY, F. J. On the trial the Judge (BKADY) charged the jury as follows : NEW YORK MARCH, 1861. 135 Thomas v. Kenvon. 1. As a general rule, a man who exercises proper care and skill, may do what he will with his own property. He must not, however, under color of enjoying his own, set up or main- tain a nuisance which deprives another of the enjoyment of his property. 2. If a man,uses his own property in such a negligent and improper manner as to cause an injury to another, he is responsible for that injury. Every man in the enjoyment of his property must have some regard or consideration for his neighbor. 3. If the jury believe that the defendant erected a shed along the west gable wall of the plaintiff's house, as described in the testimony, (some twelve or more feet wide, and some eighty feet long, and some few feet from that wall, but sloping towards it, intended to protect the piles of lumber against the weather), and that the water falling upon this shed, ran off it and formed or collected on the ground near this wall, and was permitted to remain there an unreasonable time, and that the defendant was aware of it, and either did nothing to prevent any evil results therefrom, or resorted to no reasonable expe- dients with that view, in consequence of which the water so forming or collecting and remaining, percolated or strained through this wall, doing injury to it, and to other parts of the plaintiffs house, when the defendant, by exercising reasonable or ordinary care, could have averted these results, he is respon- sible to the plaintiff. 4. The same principle would apply to the stable spoken of in the evidence, and any other erections upon the defendant's premises, if the jury believed that they occasioned injury to the plaintiffs house, under circumstances similar to those sup- posed in relation to the shed. 5. If the ground of the defendant's premises was so sloped on the surface, as that the water falling thereon ran to and col- lected along the west gable wall of the plaintiff's house, and being permitted to remain there an unreasonable time, strained through that wall, injuring the house, and the defendant was aware of it, and wantonly or as the result of indifference or gross negligence, refrained from doing any tiling, or adopted no reasonable expedients to prevent the injury, when by the 136 COURT OF COMMON PLEAS. Thomas v. Kenyon. adoption of reasonable means on his part it could have been prevented, he is responsible to the plaintiff. 6. It' the defendant permitted water to collect upon the sur- face of his premises, and wantonly or recklessly, or negligently suffered it to remain there until it strained through the earth and the west gable wall of the plaintiff's house, injuring the house, and the defendant knowing the fact, resorted to no rea- sonable expedients for the prevention of this injury, he is responsible to the plaintiff. 7. The defendant was bound to adopt reasonable means to prevent the water forming or collecting and remaining upon his premises an unreasonable time, and it is for the jury, as a question of fact, to decide or say what was, or would have been, an unreasonable time, and what reasonable means or expe- dients on the part of the defendant could have been taken to prevent injury to the plaintiff, and whether or not the defen- dant adopted or resorted to them. 8. If the defendant did not construct or erect the various alleged causes of injury to the plaintiff's house, it is for the jury to say whether he continued them during the time for which the plaintiff claims to recover, with a knowledge of their existence and that they were injurious to the plaintiff's prop- erty. 9. That if the jury believe the statement of the plaintiff to be true, that he had erected a shed on the west line of his lot, the roof of which projected over into the lot of the deien- dant, and the water which ran from it went to swell the w:iter which came from defendant's lot into the basement of plaintiff's house, then the plaintiff could not recover, his own negligence contributing to the injury of which he complained. But if the jury further believed that the plaintiff's house would have been injured by the other water upon the defendant's premises without reference to the contributions they received from this source, in consequence of the defendant's gross negligence, in not trying to prevent the injury, the plaintiff was entitled to recover for the injury done to his house by the other waters from the defendant's premises, (distinct from those contributed by these wood-sheds), to the extent the jury believed that in- jury to have been done. 10. That the defendant in this cause was not responsible NEW YORK MARCH, 1861. 137 Thomas v. Kenyon. for the water which passed over his premises from Forty -fourth street, and reached the lot of the plaintiff, nor would he be re- sponsible for water which came from a bursted hydrant or pij>e, unless the hydrant or pipe was on his premises. The judge also charged the jury, that if they were of opin- ion that the lot of the defendant remained in its natural posi- tion, and was in such position at the time of, and before the commencement of this action, the plaintiff could not re- cover, because every person has a natural right to the use of his land in the situation in which it was placed by nature. And further, that if the plaintiff was entitled to a verdict, he could recover only to the extent of the actual injuries proved by the evidence, and was not entitled to general or exemplary damages. The defendant's counsel requested the judge to charge that, where the claim is founded upon a private nuisance and the fault is natural, the plaintiff cannot recover. The judge declined so to charge, except as he had already charged. The jury brought in a verdict for the plaintiff; and a motion for a new trial having been denied, the defendant appealed to the general term. John JI. White, ( WJdte & Lowry] for appellants. John Graham, for respondents. DALY, F. J. The water deposited on the defendant's lot, and which sank in close to the foundation of the west gable wall of the plaintiff's house, as well as the water which flowed over the defendant's lot towards the lot of the plaintiff, and into and upon the plaintiff's premises, injuring his building, and rendering the basement of his house untenantable, was chiefly owing to the natural formation of the ground, and the cutting off of existing water-courses, and in part to the erection of sheds upon the lots both of the plaintiff, and of the defen- dant. The plaintiff's lot, before any building was erected upon it, was the lowest lot in the neighborhood. It is t-ituated on the northerly side of west Forty-third street, between the Tenth 138 COURT OF COMMON PLEAS. Thomas v. Kenyon. and the Eleventh avenues, and the lot of the defendant, which, adjoins it on the west, inclines or slopes toward it. To the north and west of the defendant's lot, the laud is more elevated. This elevation extending as far as the Eleventh avenue and Forty-ninth street, with an easterly inclination or descent in the direction of the plaintiff's lot. Upon this higher ground in the vicinity of Forty-ninth street, there are natural springs, the water from which flows over the surface in an easterly di- rection, across the defendant's lot, and towards the lot of the plaintiff. In the full and spring, these streams were more swollen than at other periods, discharging their waters over the surface, and the volume of water, which was largely increased when it rained, following the natural declivity of the ground, flawed in the direction of the plaintiff* 's lot. His lot being the lowest, water continually remained there, and before it was built upon, a pond existed in the front part of it, large enough, in the language of one of the witnesses, for ducks to swim in. Af- ter his building was erected, a drain was laid across the centre of his lot, uniting with similar drains upon the lots to the east of him, which connected with a sewer one hundred and seventy- live feet east of the defendant's lot. Fifty feet west of the plaintiff's lot there was also a culvert, upon the lot of one McKenna, which served to carry off the water flowing in a di- rection from plaintiff 's lot. As persons commenced building in the immediate vicinity, they filled up or stopped the drain referred to, and the water therefore flowed over the surface, and when McKenna built, he set his house in the middle of the culvert, and thus shutting oft* this escape, the water flowed over the lots of the defendant an.l of the plaintiff*. It does not appear from the evidence, that the defendant did anything to alter the natural situation of his lot, until a short time before the commencement of the suit, and what he then did had a beneficial effect, as it tended to diminish the volume of water which flowed across his lot in the direction of the plaintiff's premises. The body of water which from the natural forma- tions ran towards the plaintiff's lot, was, especially during heavy rains, very great, descending with a force and quanti:y, sufficient, according to the statement of the witnesses, to turn two or three grist mills. There was a hollow in the defendant's lot directly adjoining the plaintiff' 's house, and over it or close NEW YORK MARCH, 1861. 139 Tkoinas v. Kenyon. to it, there was a pile of boards covered with a shed thirteen feet wide and forty feet long, the roof of which pitched toward the plaintiff's house, with a descent of seven inches, from which, when it rained, the water ran in the direction of the plaintiff's building, and remained there, the place being nearly always wet, even in dry weather. The plaintiff, on his part, had erected a wood-shed along the line of his own and the defen- dant's lot, the roof of which pitched towards the lot of the de- fendant. The roof of these sheds was four or five feet in width and about forty feet long, and the water which fell upon it when it rained was precipitated upon the defendant's lot, increasing the volume of water there deposited. The water, when it came in large quantities, completely submerged the plaintiff's base- ment, and the body of water saturating the ground alongside of the foundation of his building wore its way through the in- terstices of his foundation wall, washing away the mortar from between the stones, and making, in the language of a witness, a corn crib of the west end gable. In 1856, the Corporation commenced the construction of a sewer in Forty-third street, which was completed in August, 1857. In December, 1856, the plaintiff was allowed to connect with the sewer, as yet un- finished, but this did not afford complete relief, as the surface water still continued to flow towards his west gable wall, and plaintiff's basement still continued wet and unfit for habitation at the commencement of this suit in July, 1857. From July, 1855, until he connected with the sewer in Forty third street in December, 1856, the plaintiff was compelled af- ter every storm to have the water pumped out of his basement, which on such occasions rose two feet over the basement floor. The pumping took place two or three days in a week, and for two years the basement was never entirely free from water. Even after a suit was commenced, if a brick were taken up from the hearth, the water would rise and in half an hour be of the depth of six inches upon the basement floor. The plaintiff purchased his house and lot in 1855, and from his own statement, was aware of its disadvantageous position in respect to the flow of water. In the summer or fall of that year, he asked the defendant it' he would till up his lot, or do something to prevent the water coming upon the plaintiff 's premises ; but the defendant refused, saying that he should do 140 COURT OF COMMON PLEAS. Thomas v. Kenyon. as he pleased with his own land. In the summer of 1856, the plaintiff asked him if he would sell his lot so that it might be drained, but he answered that it was not for sale. In July, 1857, the plaintiff asked him why he did not connect with the sewer, and his answer was, that it would cost money, that if he wanted a connection for himself, he would put it in. He was then shown the injury done by the water to the plaintiff's build- ing, the cracks in the window-sills, the destruction of the walls, by the mortar coming out and dropping off, but he made no re- mark, and in a few days after, the plaintiff commenced this suit. I have stated these facts, as they -are essential to the full un- derstanding of the question that we are required to pass upon. In view of the changes that had taken place in the neighbor- hood, it was certainly the duty of the defendant to do some- thing to carry off the water which, in consequence of the cutting off of the previous water-course by the erection of buildings and otherwise, gathered upon his lot, sapping the foundation of his neighbor's building, and rendering the lower part of it uninhabitable. It does not appear upon the testimony whether the drain under the plaintiff's house, connecting with the sewer east of the defendant's lot and the culvert on the lot of Mc- Kenna, was or was not sufficient to carry off the water which from the natural formation of the ground flowed towards the plaintiff's lot, but it did appear from the defendant's own tes- timony, that when these water-courses were cut off by the buildings and improvements in the vicinity, the effect of it was to cause a large body of water to collect upon the defendant's lot. It collected chiefly in the hollow upon the lot previously referred to, immediately adjoining the west gable wall of the plaintiff's building. If was shown that by banking up earth upon the side of the lot he could have changed the direction of this water, or have carried it off by connecting with the sewer in 43d street, after the erection of that sewer had been commenced ; and it cannot be that a party is justified in allow- ing water thus to collect upon his lot to the serious detriment and damage of his neighbor, when- it is in his power, by a moderate expenditure, to turn it off. He was urgently re- quested to do something, even to sell his lot to the plaintiff, but persistently refused to do anything until he thought pro- 'NEW YORK MARCH, 1861. 141 Thomas v. Kenyon. per to fill up bis lot for his own convenience. If the land in the vicinity remained in its original state, the proprietor of the plaintiff's lot would have to bear the consequences of putting up a building upon ground so disadvantageous^ situated. Neither the defendant nor any other proprietor of adjoining lots could be held answerable for the effects produced by water flowing over their ground towards the plaintiff's lot in consequence of the natural formation of the soil. A party building upon a lot so low should furnish means for efficiently draining it, or if that were impossible, he would have to bear the result of his want of foresight in building upon land in such a condition. But, for all that appeared in the case, the means resorted to when the plaintiff's building was erected, may have been amply sufficient to carry off the water. But whether this was so or not, it is clearly shown by the testi- mony, that the body of water upon the defendant's lot was greatly increased after the cutting off of the drain and culvert referred to, and in my opinion, the change produced by the lawful exercise of the right which the proprietors of the other lots had to put up buildings upon their lots, imposed upon the defendant obligations in respect to his own lot which, but for those causes, would not have existed. His rights are to be taken in connection with the rights of all the adjoining propri- etors, and viewing them collectively, an obligation may arise which is the necessary consequence of the levelling and filling in of lots, the erection of buildings, and of the grading and pitch of streets in a new part of the city. The owner of a lot, when changes and improvements are taking place everywhere around him, has no right to insist that his lot shall remain a standing cess-pool for water to collect in, to the serious injury of those who have erected buildings upon the lots whicli adjoin him, when it is in his power to adopt the same means which they have used to connect with existing drains. I think the charge of the judge, thejjefore, upon the point, was correct, and that the exception to it was not well taken. The instruction contained in the third and fourth propositions submitted by the judge to the jury was justified by the evi- dence. The defendant was certainly responsible, if the water from the roof of his stable or lumber shed was precipitated close to the plaintiff's wall, and tended to undermine the foun- H2 COUKT OF COMMON PLEAS. Thomas v. Kenyon. dation of the plaintiff's building. No man is justified in so using his own land as to injure the building upon the land of his neighbor, when he can avoid it by the exercise of reason- able and ordinary care. It is assumed on the part of ttie defendant that this is a case of mutual or co-operating negligence, as water flowed from the plaintiff's wood shed upon the defendant's lot, close to the line of the plaintiff's lot, and as the plaintiff thus contributed by his own act to swell the body of water resting there, and which caused the injury, that he has no right of action against the defendant; and to the refusal of the judge so to instruct the jury, and to the instruction which he did give upon the point, the defendant excepted. The plaintiff was certainly guilty of negligence in so pitching the roof of his wood shed as to cast the water from it upon the defendant's lot, thus aug- menting the body of water which collected there ; but it did not appear from the evidence that the plaintiff's wood shed ex- isted there prior to the year 1856. All that appears in the case is that the defendant saw them there during that year, and the injury to the plaintiff's premises from water from the de- fendant's lot is to be traced back to July, 1855. The plaintiff testified that after every storm from July, 1855, to December, 1856, when he connected with the unfinished sewer in Forty- third street, the water ran into his basement, and that he had to pump it out. The judge therefore had no right to assume that the plaintiff's wood sheds were there during the six months preceding the year 1856, and if any presumption is to be derived from the evidence, it is that they were not. For the injury suffered during the period, and to which he in no way contributed, the plaintiff clearly had a right of action, and of which he would have been deprived if the Judge had charged as requested. Nor does the fact that the pitch of the roof of the plaintiff's wood sheds tended to augment tlte body of water which did the injury, necessarily deprive him of all right of action for the injury he sustained after the wood sheds were erected. The mutual or other co-operating negligence which deprives one party of any right of action against the other, is where the act which produced the injury would not have occurred but for the combined negligence of both. There may be mutual negli- NEW YOKE MARCH, 1861. 143 Thomas v. Kenyon. gence and yet one party have a right of action 'against the other. If a man negligently lie down and fall asleep in the middle of the public road, and another, failing to exercise or- dinary care, should drive over him, the party injured would have a right of action against the other. ^Kerrohdkof v. The Cleveland, Columbus and Cincinnati R. R. Co. 3 Ohio R. 1 72, N. S ; Trow v. Vermont Central R. R. Co. 24 Term. 494 ; Dame, v. Mann, 10 Mees & Welsby, 545 ; Butterfield v. For- rester, 10 East, 60. For though the party lying upon the road was guilty of negligence in going to sleep in such a place, still it waa not his act that caused the injury, but the want in the other party of ordinary care, by the exercise of which he could have driven around and avoided the obstacle. On the other hand, if a vehicle is driven at an improper rate of speed through a street, and a passenger who sees it approaching im- properly attempts to cross, in the expectation that he will be able to pass before it can reach the spot where he crosses, and he is injured by coming in contact with it, that is a case in which the united negligence of both co-operated and produced the accident which otherwise would not have occurred. Where such is the case, both parties are the joint authors of the act which caused the injury, and the degree or proportion in which each may have contributed to produce it is immate- rial, as one is not entitled to have satisfaction from the other for an act which had its origin in their mutual negligence. But if the effect of the negligence of one party was to produce injury to a certain extent in any event ; that is, if its effect waa to produce a certain amount of injury, even if the other party had been guilty of no negligence at all, then, though the negligence of the other party may have rendered the loss or injury greater than it would otherwise have been, still they are not the joint authors of all that has taken place, and it is possible to distinguish the amount of injury caused by the neg- ligence of the one, from the amount of injury caused by the negligence of the other. In the case which I have put, where collision is produced by the imprudent act of the passenger and the neglect of the driver, the whole damage is the result of their mutual agency, and no part of it can be said to be the result of the act of the one any more than of the act of the other. There may be more fault upon one side than upon the COURT OF COMMON PLEAS. Thomas v. Keuyon. other, but the degree of fault is not distinguishable in the damage done, and therefore, there can be no apportionment, and consequently no recovery. But if a certain amount of damage was caused by the act of the defendant, and an ascer- tainable amount by the act of the plaintiff, it does not follow because *the plaintiff by his act increased the amount of his damage, that he is to have no remedy against the defen- dant for the damage which was caused by the acts of the de- fendant alone ; and that is exactly the present case. It is manifest from the testimony that the chief injury to the plaintiff's premises w.as produced by the water which flowed in such large quantities over the defendant's lot, and lodged upon it, close to the plaintiff's building. It was, as has been shown, mainly owing to the existence of springs in the elevated ground above, and to the cutting off of the existing water courses. The water precipitated from the defendant's lumber shed and from the plaintiff's wood sheds when it rained, undoubtedly increased the whole body of water that collected in such close proximity to the plaintiff's building ; but the con- tribution from these sources must have been slight as com- pared with the water that continued constantly to collect there from the other causes. It was possible, therefore, for the jury to form some judgment as to the extent to which the plaintiff had been damaged by the acts of the defendant alone, and I think that in such a case they had a right to discriminate, and hold the defendant responsible for damages arising from causes with which the plaintiff had no agency. I think the instruction given by the judge, therefore, upon this point, was correct. But though the judge instructed the jury that if the plaintiffs house had been injured, and irrespective of the contribution of water from his own wood shed, he would be entitled to recover for injury done by other waters proceeding from the defen- dant's premises, he excluded upon the trial, under the defen- dant's exception, a question asked with the view of showing the amount of water which came from the defendant's wood- sheds in proportion to the whole, which was certainly erroneous. Unless the jury had some information as to the proportion of water that came from the plaintiff's wood-sheds, they could not discriminate, and the shutting off of all inquiry upon this 'NEW YOKK MAKCIJ, 1861. 145 Thomas v. Kenyon. point must have operated to the defendant's prejudice. For this error, which is the only one I find in the case, a new trial must be granted. BRADY, J. The question asked the witness Auld, viz : What relative amount of water to the whole in Mr. Thomas's yard comes from the defendant's lot? should not have been allowed. The witness had stated that he had seen water falling from the wood-shed of the plaintiff on the defen- dant's land, having been in the defendant's lot when it rained, and there was no pretence that he knew of water running or falling upon the defendant's lot, except that which fell from the shed. He did not state that he knew how many rain-storms had taken place during the period it was alleged, and proved, that the defendant had permitted the water to accumulate on his lot, or that he knew of the violence of such storms. He had seen water falling from the plaintiff's wood-shed often, and nothing more. If he had been asked as to the extent of the water which he saw thus falling, the question would hare been proper ; but it was much broader, being general, and un- limited as to time. He was to state the relative quantity of water to the whole in the defendant's yard which came from the plaintiff's lot, and he was not shown to possess the neces- sary knowledge or information on that subject to enable him to express an opinion. The dimensions of the shed had been given, and the plaintiff had admitted that the rain-water ran from his shed upon the defendant's lot, but the quantity was not stated. The dimensions of the shed being known, and the number and character of the rain-storms as to violence being shown, the jury would have had the data by \vhich such quan- tity could be determined, or the witness being competent thereto, might make and state an estimate. The question which was put to Auld was scientific in its whole breadth and scope, and could not have bi'en answered without some knowledge of laws with which he was not shown to be familiar. 'The same reasoning applies to the next question asked of Auld. I think the judgment should not be reversed, therefore, for the exclu- sion of these questions ; and there being in the case evidence that some water had fallen from the plaintiff's shed upon, the defendant's land, it was the duty of the judge to charge 146 COURT OF COMMON ?LEAS. Thomas v. Kenyon. the ninth proposition, and upon such proposition it was immaterial what quantity of water was contributed from the plaintiff's shed. The jury were therein told that if they believed that the water which ran from the plaintiff 's shed went to swell the water which came from the defendant's lot into the basement of the plaintiff's house, then the plaintiff could not recover, his own negligence contributing to the in- jury of which he complained. The defendant's neglects in this respect were not dependent upon the quantity of water which came from the plaintiff's shed. His liability was based upon the question whether the plaintiff's house would have been in- jured by the other water, in consequence of the defendant's gross negligence in not trying to prevent the injury. If the defendant wished to prove the contributions of water from the plaintiff's lot, he should have adopted the proper means of establishing the fact, which he did not do, and he had the ad- vantage of all the proof on that subject in the case. The evi- dence warranted the finding of gross negligence, and it was upon that theory that the verdict was given. His attention had been called to the injury the plaintiff was sustaining, and he refused to do anything to obviate it, expressing a determin- ation to do as he pleased with his own land. The judgment should be affirmed. HILTON, J. I agree with Judge BRADY, that the witness, Auld, was not shown to possess any knowledge which would justify his giving more than a mere opinion, or guess, respect- ing the matter inquired of. In this view, I think the questions put to him in regard to the relative quantity of water which came from the plaintiff's shed were properly overruled. With this single exception, I concur in Judge DALY'S opin- ion. The judgment should be affirmed. NEW YORK MAY, 1861. 141 Adams v. Cole. JTTLICTS L. ADAMS v. RHOA.DES COLE. A general agent or clerk employed to make sales of goods and require pay- ment therefor, who obtains payment of false bills by fraud or deceit, Held, as acting within the scope of his emplo3 r ment, and his principal is liable for the amount thus obtained ; especially where there is some evidence, how- ever slight, that the agent paid the sum collected to his employer. APPEAL by the defendant from a judgment of the First District Court. The action was brought to recover the sum of $76 05, paid by the plaintiff to the defendant on the false representations of the defendant's agent. One Gould was the general agent of the defendant for selling salt, making out and collecting bills, &c. The plaintiff bought a bill of salt of the defendant on the 10th day of April, 1858, amounting to $76 05, which was paid by the plaintiff's clerk, on the 28th of May following. It is alleged that one James Gould went to the plaintiff's store with a bill for the same amount, which the plaintiff's clerk paid, and for which Gould gave a receipt. On the trial, the plaintiff and other witnesses swore that Gould had since seen his receipt given on the second payment, and had admitted that it was in his handwriting. Gould de- nied having received the money, but stated that he never col- lected anything from the plaintiff which he had not paid over to the defendant. Judgment was rendered for plaintiff, and the defendant appealed , BY THE COURT. HILTON, J. Gould was the general agent or clerk of the defendant, to make sales of goods and receive payment therefor, and for any deliberate fraud or deceit prac- ticed by GouM within the scope of his employment, the defen- dant was liable, upon the ground stated by Lord Oh. J. Holt, in Hern v. Nicholls (1 Salk. 289), that as some one must be a loser by the deceit, it is more reasonable that he who employs 148 COURT OF COMMON PLEAS. Fash v. The Third Avenue R. R. Compkny. and * confides in the deceiver should be the loser than a Btranger. Smith's Mercantile Law, 182 : Taylor v. Green, 8 Carr. & P. 316. But it is unnecessary to place our decision of the present case on this principle, as there was some evidence before the justice to show that Gould paid over to the defendant the mo- ney received by him from the plaintiff, on June 4th, 1858. We must, therefore, assume that the justice found such to be the fact, and as there cannot be a doubt from the testimony that this money was paid to Gould by the plaintiff, under mistake of fact, in respect to which both parties were equally bound to be informed, it follows that the judgment given was right, and should be affirmed. Canal Bank v. Bank of Albany, 1 Hill, 287 ; Bank of Commerce v. Union Bank, 3 K Y. 230. Judgment affirmed. ANDREW FASH v. THE THIKD AVENUE RAILROAD COMPANY. A railroad company having undertaken to lay down a rail track along a street which is a public road, are bound to lay it down properly, and to keep it in a proper condition thereafter. It is a question for the jury to determine whether they have done so or not. And where, by the sinking of the pavement, a spike in the rail was left exposed with which plaintiff's carriage coming in contact, the plaintiff was thrown out and injured, Held, that the company was guilty of negligence, and the plaintiff might recover. It is wholly immaterial whether the projection of the spike resulted from the failure of the city corporation to repair the street in the locality of the acci- dent. The injury to plaintiff resulted from the defendants permitting the spike to project. Held, therefore, that the judge properly refused to charge the jury that if the defect in the track was owing to the condition of the streets, or of the gut- ters alongside, the plaintiff could not recover. NEW YORK MAY, 1861. 149 Fash v. The Third Avenue R. R. Company. A refusal to charge the jury that if the rest of the avenue was open and fit for plain tiff's wagon, he could not recover for the defective condition in the pavement, Held, proper. Where the complaint was not given in evidence, and the plaintiff was not asked any questions in relation to its contents,- J3eZd, that the judge properly refused to charge the jury that the discrepancy between the plaintiff's sworn com- plaint, and his evidence and the testimony, might be taken into consideration in considering his credibility. APPEAL by the defendants from a judgment entered on a verdict of the jury at the Trial Term. The action was brought to recover damages for injuries to the plaintiff by his being thrown from his carriage, caused by its coming in contact with spikes protruding from the rail or sleeper of the defendants' road in Third avenue. The road was at the time of the injury temporarily located at one side of the street, 'to enable the city corporation to construct a sewer. The paving blocks next the rails had settled below the rail, so as to leave the spikes exposed. The defense was, that the settling of the paving blocks was caused by the flooded condition of the street ; that owing to the want of any gutter stones it was impossible to keep the blocks chock up to the rail ; and that owing to t,he excavations for the sewer, there were not two feet of the pavement on the curb- stone side, where the injury occurred, which they could keep in repair as required to do by city ordinance. On the trial, the Judge (DALY, F. J.) refused to charge the jury, tli at if the rest of the avenue was open and fit for the plaintiff's wagon, he could not recover for the defective con- dition of the blocks. The Judge also reftifed to charge the jury, that if the alleged defect in the track was owing to the conditkm of the street, or of the gutters alongside, the plaintiff could not recover. The Judge also refused to charge, that the discrepancy be- tween plaintiff's sworn complaint, and his evidence and the testimony, might be taken into consideration in considering his credibility. . Potter, for appellants. The defendants are not liable to t.he plaintiff because of the defective condition of the street. The city owns the fee of tho 150 COURT OF COMMON PLEAS. Fash v. The Third Avenue R. R Company. streets j it is charged with the duty of keeping them in repair. The defendants never agreed to perform that duty ; at the ut- most, only "to bec'ome bound" to do it. That contract is be- tween them arid the city ; the city's rights were never assigned to the plaintiff, and he can have no privity with it. Hutson v. The Mayor, 5 Selden, 168 ; Sailly v. Cleveland, 10 Wend. 156 ; Lane v. Cotton, 12 Mod. 488 ; Dunlap's Paley, 396. Win. C. Carpenter, and H. D. Lapaugh, for respondents. I. It is immaterial whether by the grant of the Corporation of the City of New York to the defendants to build the rail- road in question they were to keep the track in repair and pave alongside of the rails, for by the rule of the common law the defendants are bound so to construct and maintain their road that people passing over and alongside of it can do so without being in danger from any defect in the original construction of the road, or from any neglect in not keeping it in good condi- tion. II. The defendants having undertaken to lay down a rail along the Third avenue, which is a public highway, they were bound to lay it down properly and in such a manner that peo- ple could pass along with safety, and to see that it was af- terwards kept in a proper condition ; if they did not so con- struct the same, or if properly constructed, and they afterwards permitted it to remain out of repair, and injury was caused thereby, they are liable for the consequences. Cook v. jV. Y. Floating Dry Dock Co., 1 Hilton, 436. BY THE COURT. BRADY, J. The cause of the injuries sus- tained by the plaintiff in this action was the projection of iron spikes from component parts of the bed or support of the fails laid down by the defendants. It was wholly immaterial whether Jhe projection was caused by the failure of the Corpo- ration of the City of New York to repair the street in the lo- ' cality of the accident. In the language of the Judge who pre- sided at the trial, the defendants " having undertaken to lay down a rail track along the avenue, which was a public road, they were bound to lay it down properly, and to see that it was kept in a proper condition thereafter ; and it was for the jury to determine whether they had done so or not." NEW YOKE MAY, 1861. 151 Mudgett v. The Bay State Steamboat Company. It is very clear on the evidence, that if the defendants had not permitted the spikes to project as stated, the accident would not have occurred. It was, therefore, the result of their negligence. For these reasons the second request of the de- fendants to charge was properly denied. The fir.-t request was properly refused, because the plaintiff had a right to travel on that part of the avenue which he selected, and was not there, therefore, unnecessarily or unlaw- fully. The third request was also properly denied . The complaint does not appear to have been given in evidence, and the plain- tiff was not asked any questions in relation to its contents. The defendants had no right to ask a direction on the assumption of proof which was not given in the case. The judgment should be affirmed. BENJAMIN F. MUDGETT v. THE BAT STATE STEAMBOAT COM- PANY. The plaintiff having taken passage on defendant's steamboat, deposited his va- lise, containing wearing apparel, in a stateroom, the key of which was handed to him at the time of paying his passage. During his temporary ab- sence from the stateroom, the door of which was locked, the valise was sto- len, Held, that the defendants were liable. The liability of a common carrier is like that of an innkeeper, and it is no ex- cuse for the latter to say that he delivered the guest the key of the cham- ber in which he lodged. A mere supervision of one's baggage, or the means of entering the place of its deposit, is not sufficient to discharge the carrier. There must either exist the animo custodiendi on the part of the traveller to the exclusion of the car- rier, or he must be guilty of such negligence as discharges the latter from his general obligation. [Cohen v. Frost, 2 Duer, 341, criticised.] 152 COURT OF COMMON PLEAS. Mudgett v. The Bay State Steamboat Company. APPEAL by the defendants from a judgment of the First District Court. The plaintiff sued to recover the value of a valise, which he, as a passenger upon the defendants' steamboat, running from New York to Fall River, had deposited in his stateroom. The plaintiff testified that he took stateroom No. 9, and paid for the same ; that he had a valise with him, containing some clothing and other articles, which he took into the stateroom with him. A key was furnished him by the clerk of the boat. He locked his stateroom and went down to the saloon ; in his absence the valise was taken from the stateroom. The defence was, "that the luggage was not delivered by the plaintiff to the defendants, who had a regular baggage master to receive and care for the luggage ; and consequently they were not liable. The justice gave judgment for the plaintiff, and the defen- dants appealed to this court. D. D. Lord, for appellants. I. To constitute delivery, the luggage must be given into carrier's charge, so that he has notice of intention to hold him responsible, and he may have possession, so as to enable him to fulfill his duties. Buck-master v. Levy, 3 Camp. 404 Selway v. Holloway, 1 Ld. Raym. 46 ; Tower v. U. & 8. R. R. Co. 7 Hill, 47. Where a guest leaves luggage in his room in an inn, and takes the key for the purpose of taking care of it him- self, the innkeeper is not liable. Burgess v. Clements, 4 M. & S. 306. So where plaintiff, instead of giving parcel to the driver, put it into his own bag. Mills v. Cattle, 6 Bing. 743. So where owner was to go with cart. Brind v. Pale, 8 Can-. & P. 207. In the last two cases, goods were in the carrier's pos- session ; but there was no recovery, because the carriers were not trusted. So where passenger put money into his trunk in- stead of giving it to captain. Orange Co. Bank v. Brown, 9 Wend. 85. II. No question of delivery is raised by the case. The baggage was put on the boat, from which it was taken. Robinson v. Dunmore (2 Bos. & P. 416), is not in point for XEW YORK MAY, 1861. 153 Mudgett v. The Bay State Steamboat Company. plaintiff. That was not a question of common carrier, but of a cartman who especially engaged to carry goods, and, on objection to insufficiency of his tarpaulin, warranted that goods should go safely. Plaintiff sent his servant with goods, because defendant was a stranger, and the servant paid for watching them one night. The goods being stolen, the carrier was held liable on special agreement and warranty. III. But the question at bar is, whether there was or was not delivery to carrier. Oayle's case (S Co. 33), is not in point, because baggage in a room, at an inn, is delivered to the inn- keeper, but not so plaintiff's baggage. Benj. F. Mudgett (Northrop & Mudgett), for respondents. BY THE COURT. BEADY, J. The defendants in this case claim exemption from liability, on the ground that the plain- tiffs valise was never placed in their custody. The liability of a carrier is like that of an inkeeper. Jlbllister v. Nolan, 19 Wend. 236 ; Cohen v. Frost, 2 Duer, 341 ; and it was de- clared in Cable's Case, 8 Co. 33, that it is no excuse for the inn- keeper to say that he delivered the guest the key of his cham- ber in which he lodged, and that he left the door open, but he ought to keep the goods and chattels of his guest there in safety. This doctrine has frequently been recognized and ap- proved, (Burgess v. Clements, 4 M. & Sel. 310 ; HolUster v. Nolan, supra}) and cannot be questioned, as resting on ac- knowledged just and reasonable duties and obligations. A distinction is admitted to exist where the traveller assumes the charge of his goods animo custodiendi, and the jury on the facts disclosed, find such' intention to have existed. Burgess v. Clements, supra; Tower v. Utica & Schen. /. R. Co. 7 Hill, 47. The innkeeper would then be excused. The mere act, however, of taking the key of the room in which the guest lodged, his goods having been placed therein, would not dis- charge the innkeeper. The only case which seems to be in conflict with the rule here suggested is Cohen v. Frost, supra. In that case, the plaintiff, who waa a passenger on a sea voyage, took his trunk into the steerage and tied it with ropes to his berth. During a violent storm the ropes were cut, and the trunk stolen. The 154 COURT OF COMMON PLEAS. Mudgett v. The Bay State Steamboat Company. plaintiff had a verdict, but the general term set it aside, on the ground that the trunk had never been delivered to the defen- dants, the defendants' possession being exclusive. The Court say, in delivering the opinion, that the case is not to be distin- guished from that of a guest at an inn, who, when he takes his luggage to his own chamber, of which he keeps the key, dis- charges the innkeeper, and this is declared to be the law, on the authority of Burgess v. Clements. The learned judge who delivered the opinion in Cohen v. Frost^ must have confounded Burgess v. Clements with some other case, because the King's Bench did not declare any such rule. The plaintiff was defeated because his goods were not received causa, hospi- tandi. He had asked for, and obtained a room in which to show his merchandise for sale, not as a guest, but as a vendor, and his property was, under the circumstances, held not to have been within the rule which required the innkeeper to protect it. The opinion, therefore, in- Cohen v. Fro*t, is not sustained by the authority on which it is based, so far as it re- lates to the legal effect of the innkeeper's giving the key to his guest : and the general doctrine which seems to be declared by it, that a traveller on a sea voyage must place his luggage in the special charge of the officers of the ship, is disclaimed, in effect, in Van Horn ^. Kermit, 4 E. 1). Smith, 453 ; the reasons assigned why a contrary rule should prevail are well settled. So far as the adjudications which bear upon this question have been discovered, they sustain the rule that a mere super- vision of one's baggage, or the means of entering the place of its deposit, is not sufficient to discharge the carrier. . There must either exist, the animo custodicndi on the part of the tra- veller, to the exclusion of the carrier, or he must be guilty of such negligence as discharges the latter from his general obli- gation. Robinson v. Dunsmore, 2 B. & P. 416. Burgess v. Clements, supra Tower v. Utica & Schen. ft. R. Co. supra ; East India Com. v. Pullen, 1 Strange Rep. 694. It was not pretended in this case that the plaintiff was guilty of negligence, and so far as it may be necessary to con- sider the question whether the plaintiff retained the custody of his valise or not, it is only necessary to say that the finding of the justice is against the defendants upon that issue. I do NEW YOEK MAY, 1861,. 155 Bishop v. Sniffen. not understand upon what process of reasoning it can be main- tained that giving the key of a room on board of a vessel to a traveller, in which he is permitted to deposit his baggage, is not in fact, an assumption of the possession of all that is there- in placed. The whole vessel is in the possession, and subject to the control of the owners. The custody of the vessel, and the general government of the room given the traveller, con- tinues with them. The use of it is a convenience for which the traveller pays, and if its employment absolves the carrier from vigilance, the security of property succumbs to the ease or pleasure of the journey. Such cannot be the law. The de- fendants can protect themselves if they wish, by notifying their patrons that no goods can be placed in the stateroom hired, except at the risk of the owner, and thus advise them of the consequences of the act. But as long as they permit a traveller thus to deposit his baggage without notice, the mere circumstance of his taking a key will not be considered suffi- cient to relieve them from their duty to protect him against theft. The judgment should be affirmed. GEORGE W. BISHOP v. ELISHA SNIFFEN. Interest on a promissory note, payable on demand, is allowed from the time of the demand, and not from the date of the note. Where it does not appear that at the time of the demand of payment of a lost promissory note, negotiable in form, the same was not indorsed, /MJ, that the demand, unaccompanied by an offer of a bond of indemnity, did not place the maker in default ; and interest ought not to be allowed from the time of such demand. That a demand of payment of a lost promissory note will be held sufficient without an offer of a bond of indemnity, where it appears either that the note was not negotiable, or being negotiable, had not, in fact, been indorsed. APPEAL by the defendant from a judgment of the Sixth Dis- trict Court. 156 COURT OF COMMON PLEAS. Bishop v. Sniffen. The action was brought upon a lost promissory note, alleged to.have been made in San Francisco, May 19, 1855, payable to plaintiff'or order on demand, with interest at ten per cent, per annum. The justice before whom the cause was tried, rendered judg- ment for the plaintiff for the principal of the note, and interest from its date at the rate of ten per cent. The defendant appealed to this Court, on the ground, among others, that judgment was rendered for interest from the date of the note, and anterior to the time of the demand. D. F. Walden (Tomlinson, Walden & Brigham}, for appel- lants. I. Interest should have been allowed only from the time the suit was commenced. A note payable on demand carries interest only from the time a demand is made by suit or other- wise. Renss. Glass Factory v. Reid, 5 Cow. 587 ; 11 N. Y. 406. II. There was no demand before suit brought. Payment cannot be demanded of a negotiable note without delivering it up. Story on Notes, 107, 111, 445. III. Where a note is lost, demand cannot be made of it without a tender of indemnity at the time of the demand. See Smith v. Rockwell, 2 Hill, 482. A. H. Hitchcock, for the respondent, contended that the "English rule that interest only runs from demand on a note payable on demand, had never been recognized by the Courts of this State ; and cited Taylor v. Van Loan, 15 Wend. 308 ; Reid v. Renss. Glass Co., 3 Cow. 425 ; Purdy v. Phillips, 11 N. Y. 406. BY THE COURT. BRADY, J. The question presented in this case, namely, whether in an action on a note payable on de- mand, interest is to be allowed from the date of the note, or the time of demand, has not been settled by any express adju- dication in this state, although a rule which is controlling has been long recognized. In Campbells. Mesier(Q Johns .Ch. Rep. 21), the chancellor said " it is the settled rule in the law of this State, that interest NEW YORK MAY, 1801. 157 , Bishop v. Sniffeu- is to be paid for money received or advanced for the use of an- other, after a default in payment," and SPENCER, Senator, in Renssellaer Glass Factory v. Reid (5 Cowen, 611), adopts the rule thus stated, which he says is illustrated by the familiar case of a note payable on demand, where interest is never allowed but from the time of demand, made by suit or otherwise. The same rule is recognized in Purdy v. Phillips, 1 Kern an, 406 ; also in Edwards on Bills, 712 ; and in Smith's Mercantile Law, p. 526. See also, Stowils v. Bank of Troy, 21 Wend. 186,and Day v. Bett, 6 Johns. 24. Interest is given by the courts as pecuniary damages upon a contract to pay money and a failure to pay at the time desig- nated (LoKD MANSFIELD, in Robinson v. Bland, 2 Bnrr, 1086) ; and when a sum is payable on demand, the damages do not arise until default is made. Predicating the right of the plain- tiff to receive interest on this principal, it is clear that the judg- ment rendered below is wrong because there is no proof that the note was demanded on the day of its date. In reference to the demand proved, and the questions arising from the proof of such demand, this case illustrates the troubles which are occasioned by the mode of trying cases in the inferior courts. If the plaintiff had been asked whether at the time the demand was made the note had been endorsed, his answer might have secured to him the benefit of that de- mand, as to interest, but inasmuch as the case does not disclose the fact whether the note was endorsed or not, the plaintiff was not entitled to interest but from the time of the com- mencement of this action. If the note had not been nego- o tiable, or being negotiable, had not in fact been negotiated, the plaintiff would be entitled to recover the interest from the time' of the demand in 1858 (Pintard v. Tackington, 10 Johns. 104 ; Rowley v. Ball, 3 Cow. 303 ; MoNair v. Gilbert, 3 Wend. 344 ; Blade v. Noland, 12 Wend. 174 ; Smith v. Rockwell, 2 Hill, 483); because in that case no indemnity could be demanded or required at the time of the demand, as no right of action would exist against the defendant in the hands of the stranger holding the note. The plaintiff failed, however, to make out a plain case. He did not show that at the time of the demand the note had not been endorsed, nor did he show that the defen- dant, when the demand was made, placed his refusal upon 158 COUR1 OF COMMON PLEAS. Ballard, v. Lockwood. some other ground than the nonproduction of the note or a right of indemnity. The note being negotiable and being lost, the defendant was not bound to make payment of it upon a mere naked demand, and therefore made no default in Sept. 1858. Smith v. Rockwell, supra, and cases cited ; Des Arts v. Leggett, 5 Duer, 156. For these reasons the judgment should be reduced so that interest is allowed only from the commencement of the action, and should be affirmed for the balance, without costs to either party. LOOMIS BALLAUD and others v. EZEKIEL S. LOOKWOOD, im- pUaded, &c. The complaint averred a fraudulent agreement between the defendants L. com- posing a copartnership, and G., to obtain goods on G.'s credit, on represen- tations made by L. of G.'s solvency and good standing ; and alleged that the representations of L. to the plaintiffs, and the purchase made of the plain- tiffs by G., on such representations, " were made in pursuance of such fraudu- lent agreement, and were a device and contrivance" between L. and G. to obtain the goods of the plain tiffs, Held, on appeal from judgment after verdict, that the complaint was sufficient. 1. It matters not what the claim is termed in ihe complaint, or what word is employed by the defendant to express the legal effect or result of the acts alleged. It is enough that they form the basis of a demand. 2. Nor is it necessary to aver that the representations on which plaintiffs parted with their goods were false. It is sufficient to allege that they were made by the defendants well knowing the truth to be the converse. A. complaint is " duly verified " within 4 of the act of 1857, in relation to the Marine Court, if made by one of several plaintiffs united in interest. It is not necessary to state that the person making it is acquainted with the facts. In an action to recover damages sustained by reason of the fraudulent repre- sentations of the defendant concerning the credit and good standing of another, doing business under the designation of agent, it is wholly imma- terial whether or not it is the understanding in mercantile circles that a per- son doing business under such designation is not responsible. NEW YORK AUGUST, 1861. 159 Ballard v. Lockwood. And in such an action, it is immaterial whether the plaintiff received any information as to the standing of the party from mercantile agencies, or whether the plaintiff was a subscriber to such agencies ; the question to be tried being whether the defendant made the statements untruly and from . bad motives. Although a motion for nonsuit might have been properly granted on plain- tiff's resting his case, on the ground that the evidence was too slight to sustain the claim, yet, where the case was subsequently strengthened by the defendant's witnesses, the exception taken oh denying that motion is not available on appeal. It is a matter of discretion for the judge to exclude a question on the ground that it has already been answered in effect ; and as such, the exclusion is not reviewable on appeal. Questions to a witness whether certain representations alleged in the com- plaint were made " with intent to deceive or mislead ;" and whether, in his representations, " he spoke and acted in good faith, and in the belief that what he said was true," Held, properly excluded. [The case distinguished from Seymour v. Wilson, 14 N. Y. 567.] Judgment mny be rendered against one defendant alone in the Marine Court in cases embraced by section 136 of the Code, although that section does not apply to the Marine Court. APPEAL by the defendant from a judgment of the Marine Court, at General Term. The plaintiff's cause of action is stated in the following para- graph of his complaint : " The plaintiffs are informed, and believe, and aver the fact to be, that at or 'about the time of the sale of said goods by the plaintiffs to the said Thomas Gill, and the making of repre- sentations hereinbefore referred to by the said Lockwood Brothers, the said Gill was indebted to the said Lockwood Brothers in the amount of thirteen thousand dollars, or there- abouts,' and was well known by the said Lockwood Brothers to be insolvent, and unable to pay his debts, and with a view to obtain payment of their own debts, it was agreed between the said Gill and the said Lockwood Brothers, that the said Gill should endeavor to purchase goods from various* merchants in the city, and should refer to the said Lockwood Brothers as to his responsibility, and that the said Lockwood Brothers should represent him to be solvent and in good credit, and that such 160 COURT OF COMMON PLEAS. Ballard v. Lockwood. goods, when purchased, should be transferred to the Lockwood Brothers in payment of their debts, or sold at auction by them, and the proceeds applied to the payment of their debt ; and the plaintiffs believe, aver, and charge the fact to be, that the application of said Gill to the plaintiffs to purchase said goods, the reference to the said Lockwood Brothers, and the state- ments made by the said Lockwood Brothers, were all made in pursuance of such fraudulent agreement, and were a device and contrivance between the said Lockwood Brothers arid the said Gill to obtain the goods of the plaintiffs, to be applied to the payment of the debt of the said Lockwood Brothers." The complaint was verified as follows: " Charles E.Williams being duly sworn, says : That he is one of the plaintiffs in this action ; that the foregoing complaint is true of his own knowledge, except as to the matters therein stated on information and belief, and as to thosfc matters he be- lieves it to be true." The defendant Gill was not served. E. S. Lockwood and Alexander Lockwood put in special defences. On the trial, and before the proofs were gone into, the defen- dants' counsel moved that the complaint be dismissed, on the ground that the action was purely a personal action, and could not be brought against a partnership firm as such, and that no representations were charged by the complaint upon any indi- vidual, but only upon the firm of Lockwood Brothers. The Court denied the motion. The exceptions taken on the trial are stated in the opinion of theCourt. The Court belowrendered verdict for plaintiffs against .the defendant E. S. Lockwood, and in favor of the defendant A. Lockwood ; upon which judgment was duly entered in favor of plaintiff against the defendant E. S. Lockwood ; and defen- dant E. S. Lockwood appealed to this Court. E. R. Bogardus, for appellant. I. The -act of 1857 is imperative, that the' complaint duly verified shall *be served with the summons; this verification must be in conformity with the Code, which is not complied with in this case, as the verification does not state that the per- son making it is acquainted with the facts. (Code, 157). The NEW YORK AUGUST, 1861. 161 Ballard v. Lockwood. verification, if by one of several plaintiffs united in interest, 'must be by one of the parties acquainted with the facts. Bos- ton Locomotive Works v. Wright. 15 How. 256. II. The complaint should have been dismissed on motion. (1.) An action of deceit or conspiracy cannot be maintained against a partnership firm as such, nor can false representa- tions be properly alleged to be made by a firm, but must be charged against individuals only. But an action of deceit is strictly a personal action, and neither survives nor is assign- able. Zabriskie v. Smith, 13 N.-Y. 322, (2.) The com- plaint does not contain a cause of action, for it does not allege that any of the representations charged to have been made were false, nor any scienter / but these are the gist of the action. The omission is fatal even after verdict. Zabriskie v. Smith, 13 N. Y. 322 ; Young v. Covell, 8 Johns. 19 ; Pasley v. Freeman, 3 Term, 51 ; 2 Smith's L. Cases, 55 ; 2 Chit. PL 702, 703 and notes. III. The evidence excluded tending to show the plaintiff's knowledge of Gill's circumstances, should have been admitted. McAllister v. Sexton, 4 E. D. Smith, 41 ; Star v. Bennet, 5 Hill, 303. IV. The verdict determined the issue in the defendant's favor, and judgment thereon should have been entered in favor of both defendants. No conspiracy, no firm liability, no firm representations, no conversion by the firm, are found by the jury. To sustain the judgment, an entirely different cause of action must be inserted in the complaint, based on certain definite representations alleged and proved to be false. This would be unjust to allow. Waldheim v. Sickell, 1 Hilton, 45 ; Howe v. Wilson^ 1 Den. 181. Stillwell & Swain, for respondents, contended that the com plaint was duly verified, and cited Southworth v. Curtis, 6 How. Pr. 271 ; Harnes v. Tripp, 4 Abbott's Pr. 232 ; also that if the objection of a defect of parties were valid, it could only be taken by demurrer or answer (Code, 144, 147, 148 ; and Zabriskie v. Smith, 3 Kern. 322) ; and that it was not law that false representations cannot be properly alleged to be made by 162 COURT OF COMMON PLEAS. Ballard v. Lockwood. a firm. Pattan v. Gurney, 17 Mass. 182 ; Afedbury v. Wat- son, 6 Metcalf, 247, 257 ; Stiles v. White, 11 id. 356. BY THE COURT. BRADY, J.- This action was predicated of the charge that the defendants Lockwood, in order to obtain payment of the debt due to them by Gill, made an arrange- ment with him, by which it was understood and agreed that he should endeavor to purchase goods from various merchants in the city of New York, and should refer the latter to them as to his responsibility, and that they should represent him to be solvent and in good credit, and that the goods, when pur- chased, should be transferred to them, in payment of their debt, or sold at auction by them, and the proceeds applied to soch payment. And the plaintiffs maintained the truth, to be that representations as to the solvency of Gill were made to plaintiffs by the defendants Lockwood, pursuant to that de- vice, and that goods were obtained from the plaintiffs by Gill, by virtue of such representations. And further, that the de- fendants Lockwood, although they stated the fact to be other- wise, knew well that Gill wa,s insolvent and unable to pay his debts. Assuming the facts here stated to have existed, and the charge also stated to have been truly made, there can be little doubt of the liability of the defendants Lockwood for the amount of property obtained through their instrumentality. It matters not what the claim was termed in the complaint, or what word was employed by the plaintiff to express the legal effect or result of the acts alleged. It is enough that they formed the basis of a demand. Nor does it affect the in- tegrity of the cause of action stated, that the representations made by defendants Lockwood, are not averred to have been false. They are alleged to have been made by them they well knowing the truth to be the converse of what was said. The complaint was sufficient in form and substance, therefore. The verification was also sufficient. It was made by one of the plaintiffs and was, for that reason, made by one of several parties united in interest, who was acquainted with the facts. The act of 1857 (Laws, 1 vol. 599), however, only provides that the complaint shall be duly verified, and sec. 157 of the code does not apply to the Marine Court. The form of verification is not prescribed by act of 1857. NEW YOKE AUGUST, 1861. 163 Ballard v. Lockwood. .No exception appears to have been taken to the charge, and the issues must be presumed to have been properly presented to the jury for their consideration, and, unless some of the ex- ceptions taken during the trial require.it as matter of right, the verdict cannot be disturbed. It may be proper to remark here, that there is evidence of a combination in the case, and although we might be disposed to regard it as slight, it was, nevertheless, sufficient to sustain the finding. The proper tribunal has so declared, and we are concluded by such avowal. The first exceptions to which our attention has been called, and the questions which gave rise to them, are irrelevant. It was wholly immaterial what was the understanding in mercantile circles to be drawn from a per- son's doing business under the designation of an agent, or whether the plaintiffs received any information from mercan- tile agencies, or whether the plaintiffs were subscribers to such agencies. The question to be tried was whether the defen- dants Lockwood had made statements untruly and from bad motives. The plaintiffs were not on trial on any question of intent or negligence, and if they chose to rely on the defen- dants' statements they had the right to do so. The question at- fol. 45 had some bearing on the fact, whether the goods were not obtained from the plaintiffs to be sold at auction to raise money on, but if it had not, it is quite clear on the whole case, that it could not have prejudiced the defendants. The goods purchased from the plaintiffs were, in fact, exposed for sale at the defendants', Lockwoods', auction rooms, on the day after the sale of them to Gill. They were straw goods, and the defendants were to have straw goods to secure them. The motion for nonsuit might, I think, have been pro- perly granted, the evidence having been very slight when the defendants rested to sustain so grave a charge as that made by them, but the case was strengthened by defendant E. S. Lock- wood's examination, and the exception taken on denying that motion cannot avail the defendants now. The question at fol. 62, as to Mr. Lockwood's confidence and belief in Gill's respon- sibility, was properly rejected, because he had already stated that up to the day before Gill stopped, his confidence in him had not been impaired, and there was no necessity for multi- plying his statements to the same effect. The exclusion of a 104: COURT OF COMMON PLEAS. Ballard v. Lockwood. question under such circumstances, must be a matter of dis- cretion, and as such, not re viewable. Were there no other ob- jection to the question asked, this would be sufficient to justify its exclusion. This inquiry having been thus disposed of, the defendants' counsel asked Mr. Lockwood to state whether or not, in the conversation he had with Mr. Williams or others, in regard to Gill's affairs, he had any intent to deceive or mislead, and this being excluded, the counsel then asked Mr. Lockwood to state whether or not, in the conversation with Mr. Williams, he spoke and acted in good faith, and in the belief that what he said was true and correct, and this was also excluded. The objection stated to both inquiries was, that the witness could not testify as to his intent, but only as to acts and facts, from which the jury were to infer the intent. The defendants' coun- sel places his right to have one of the questions, at least, answered, on the authority of Seymour v. Wilson, 14 N. Y. 567. That case was brought to set aside an assignment which was alleged to have been made with the intent to hin- der, delay, and defraud creditors, which was the sole issue in the cause. The assignor, on cross-examination, was asked whether, in making the assignment to the defendants, he in- tended to defraud Conrad Cramer or any of his other creditors The question was excluded, and the Court of Appeals held the ruling to be erroneous, but, as I understand the case, upon the ground that fraud against creditors always consisted in the cor- rupt intent of the parties to the transaction, and upon the fur- ther ground that the question of fraudulent intent was declared by the statute to be a question of fact, and not of law. There is no analogy between that case and the case in hand, and I think it may be said with propriety that the privilege accorded the assignor in that case was an innovation upon the rules of evidence. There is no other reported case to be found in this State where the parties to an alleged fraudulent combination have been permitted to state the intent with which they did the act complained of, and the decision in that case should be confined to the class of cases in which it originated, until the court of last resort shall otherwise adjudge. I think the ques- tions were, therefore, properly excluded. I assume, for the purpose of disposing of the exceptions taken upon such exclu- NEW YOftK AUGUST, 1861. 165 Vincent v. Buhler. sion that the questions were not subject to the criticism of be- ing objectionable, as calling for more than an expression of intent, although such is not the case, and I do so because the objections made did not embrace such a criticism. There can be no doubt of the right of the plaintiffs to recover against the defendant F. S. Lockwood alone, although section 136 of the Code does not apply to actions in the Marine Court. This action is, in form and nature, what was known as ex delicto, in which one defendant might be acquitted and a verdict taken against the others (1 Chitty's PI. [6 Am. ed.] 99, and cases cited.) The judgment should be affirmed. EDWARD VINCENT v. WILLIAM BUHLER. A lease executed by a married woman, containing covenants on her part to pay the rent, and expressing no intention to charge her separate estate therefor, is absolutely void, and constitutes no bar to an action against the husband for use and occupation. APPEAL by the defendant from a judgment at Trial Term. The plaintiff sued for the use and occupation of certain premises in the City of New Fork. The defendant answered that during the time for which he was sued to recover the use and occupation, the premises were occupied by one Carolina Buhler, under a written lease to her from the plaintiff. It was admitted that Carolina Buhler was the wife of the defendant. The Court rendered judgment for the plaintiff, and gave the following reasons therefor: ' HILTON, J. In deciding this case, I have regarded the lease to the defendant's wife as absolutely void. It was made upo^n 166 COURT OF COMMON PLEAS. Vincent v. Buhler. her covenant to pay rent, and as she was incapable, in law, of entering into such a contract, the demise had no consideration to support it. "Woodfall's Landlord and Tenant, 137 ; Darby v. Callagan, 16 N. Y., 71. In the last case, the Court of Appeals held the demise to plaintiff (a married woman,) valid, because it was not made upon her covenant to pay rent, she not having executed the lease. This was not so here ; on the contrary, defendant's wife signed the lease and thus entered into a contract which could not be enforced against her. The defendant then appealed to the General Term. John Moody, for appellant. I. The action for use and occupation will not lie where there is an outstanding subsisting lease, unless against an occu- pier who went in under a new and distinct agreement with the landlord. Glover v. Wilson, 2 Barb. 264 ; Smith v. Stewart, 6 Johns. 46 ; Bancroft v. Wardwdl, 13 Id. 489. II. Carolina Buhler being the tenant of the plaintiff, in respect to said premises for a term, the defendant occupied said premises, it is to be presumed, by permission of Carolina Buhler ; and the defendant's relation, as regards said premises, and in relation to the plaintiff and Carolina Buhler, was that of under-tenant, and the lessor cannot recover rent from the under-tenant in this action. Bancroft v. Wardwdl, 13 Johns. 489 ; McFarlan v. Watson, 3 K Y. 286. III. A married woman is not incompetent to take a lease. (Taylor's Landlord and Tenant, 105. Darby v. Callaghan, 16 K Y. 71). McCunn, Swartwout & Fine, for respondent. I. The lease from the plaintiffs to Carolina Buhler was ab- solutely void, because made dependant upon her covenant to pay rent. The statutes of 1848 and 1849 have not enlarged the capacity of married women to make contracts, nor in- creased their liability. They could make, under those statutes, no contracts which they could not make before. Gheeseborough v. Home, 5 Duer, 125 ; Darby v. Gallahan, 16 N. Y. 71 ; Coon v. Brook, 21 Barb. 546. NEW YOEK AUGUST, 1861. 167 Vincent v. Buhler. II. A married woman cannot bind herself personally by any executory contract, even in regard to her separate pro- perty, and no action at law can be maintained against her on such contract. Beard v. Webb, 2 Bos. & Pull. 93 ; Marshall v. Jtutton, 8 T. R. 545 ; Van Der Heyden v. Mallory, 1 K Y. 462 ; Noyes v. Bidkeman, 16 N. Y. 567. III. There being no evidence of any intention to charge the separate estate of the wife (if she had any, which is not shown), the law allows an action to be maintained against the husband. Arnold v. Ringgold, 16 How. Pr. 158. BY THE COURT. BEADY, J. The lease executed by Mrs. Buhler contained covenants on her part to pay the rent, and her estate was dependant upon those covenants. They could not be enforced against her, and the contract was void for want of mutuality of obligation. A married woman cannot make a contract except in reference to her separate estate, and the intention to charge the separate estate must be expressed in the contract, if in writing. Yale v. Dederer, 22 1ST. Y. Rep. 450. In this case there is no proof of any separate estate owned by the defendant's wife. A married woman cannot be a lessee, for her free will is so suspended during coverture that she may plead non est factum to an action on any covenant contained in the case. For use and* occupation her baron will be liable (Woodfall's Land and Ten. 137). She may, under the acts of 1848 and 1849, take a lease which imposes no obliga- tion by covenant to pay rent, thus leaving the chattel real un- controlled by, and not dependant upon, covenants. Darby v. Callaghan, 16 N. Y. Rep. 71. And under the provisions of the act of 1860 (Session Laws, p. 157), a married woman may be bound by her contract in reference to her sole or separate business, the husband being relieved from any liability upon such obligations. But in this case, the occupancy of the pre- .mises by the defendant, and his payment of the rent some- times, which was to be paid by the covenants in the lease, amount to recognition or ratification of the contract to pay, and at all events, create an implied obligation to pay for such use and occupation. Judgment should be affirmed. 168 COUKT OF COMMON PLEAS. Goings v. Patten. CHARLES GOINGS v. LUDLOW PATTEN and ALEXANDER S. CLARKE. The defendant having pleaded an account stated, may elect to rely, upon the trial, upon the stating of the account, or he may fall back upon the accounts, and show that there is in fact, a balance due him. It is not inconsistent with the defence of an account stated for the defendants to furnish a copy of the account upon which they meant to rely, in the event of their failure to prove the stating of an account. But the defendant having refused to deliver a copy of the account within the time which the Code allows after demand made, Held, that he will be deemed to have elected to rely upon the stating of the account ; and on motion, plaintiff is entitled to an order precluding defendant from giving evidence of the accounts upon the trial. APPEAL by the defendants from an order of the Court at Special Term, granticg a motion to preclude evidence being given, upon the trial, of an account set up in tha answer. The Court made a qualified order that " the defendants be precluded from giving any evidence of the account, and the items thereof stated and mentioned in the answer of the defen- dants served in this action, except so far as may be necessary to establish the single defence of an account stated and settled between the parties, it being alleged, on this motion, that that is the only defence sought to be interposed in this action, and set up in the defendant's answer." J. W. Gilbert, for appellants. The order appealed from was erroneous. The Court should have determined whether the answer, alleged an account within 358 of the Code, or not. If an account, time to furnish items should have been given on terms. If not an account, the motion should have been denied entirely. J). C. Erown^ for respondent. NEW YORK AUGUST, 1861. 169 Goings v. Patten. I. The answer of the defendant alleges an account against . the plaintiff, within the meaning of 158 of the Code of Pro- cedure. The motion papers showed that the items, or particu- lars, of the account, had been demanded a long time before, and that the defendants' attorney refused to furnish them. The proper way to proceed was by way of motion, before the case was called for trial, that the defendants be precluded from giving any evidence of the items of the account. Kellogg v. Payne, 8 How. Pr. Rep. 329 ; Code, 158. II. The attorney for the defendants, on the motion, assumed the ground that the answer did not allege any account in this case, and stated that the defendants relied wholly upon the accounting ; and conceded, upon the argument of motion, that all the allegations of the answer by way of account, had re- ference exclusively to the accounting, and that they intended to give no evidence of account except as the same might be given incidentally in proving the accounting, as alleged in the answer. The counsel should now be held to his own interpre- tation of the pleading. III. The making of the order was a matter cf discretion ex- clusively, that cannot be reviewed. The 158 of the Code, invests the Court with the discretion to order a Bill of Parti- culars in all cases. The motion in this case appealed to that discretion, and the judge would probably have granted the motion, and ordered a Bill of Particulars to be furnished, if the case was not one of those where the party is entitled to it by merely demanding it, if the attorney had not conceded, as he did, that he should give no proof of any items of the account, except by way of establishing the accounting. BY THE COURT. DALY, F. J. The appellant insists that the judge should have decided whether this was or was not an averment of an account under the 158th section of the Code ; that if it were not, the plaintiff's motion should have been de- nied, and that if it were, that the defendants should have been allowed time to furnish items upon terms. I do not see that this necessarily follows. A party may fail to establish the stating of an account, but that does not cut him off from any defence he may have upon the unsettled account. The two 170 COURT OF COMMON PLEAS. Goings v. Patten. defences are not inconsistent. The statement of an account, says an old case (Drue v. Thorn, Alleyn R.), " doth not alter the nature of the debt ; it only reduceth it to a certainty." It admits the existence of a prior running account ; and because a party relies upon the defence, that it was mutually adjusted, and the balance ascertained and fixed, and fails*to prove it, he is not thereby precluded from falling back upon the accounts, and showing that there is, in fact, a claim or balance due to him. He would undoubtedly be precluded from doing so if his pleading were so framed as to show that he relied solely upon the defense of an account stated, for that being made the sole issue, the other party might come unprepared to try any other. But a party might always join with an account stated a count for the original debt, and if he failed upon the one, he might recover upon the other, (1 Saunders on Pleading and Evi- dence, p. 42). In the present case, the Judge appears to have regarded the defendants' answer as entitling them to prove an account stated, which raises an implied promise to pay the sum found, upon the mutual adjustment, to be due, or, failing in that, to show the existence of a mutual account and indebt- edness to them arising under it. It would have been entirely consistent with the defence of an account stated, for the defen- dants to have furnished a copy of the account upon which they meant to rely in the event of their failing to prove the stating of an account. They elected not to do so, and so cut them- selves off from the right of giving any evidence to that effect, and limited themselves upon the trial to the proof of an account stated. The defendants having failed to deliver a copy of the account within the time which the Code allows after demand made, the plaintiff was entitled to an order pre- cluding them from giving evidence of it. It does not appear that the defendants asked for liberty to deliver a copy of their account then, upon terms ; but if they had, and the Judge had refused, it was a matter entirely in his discretion, which could not be reviewed upon appeal. The clause in the order that it should not be construed as preclud- ing them from establishing the defense of an account stated, was unobjectionable. It prevented the possibility of any mis- construction upon the trial as to the meaning of the order. As the defendants had precluded themselves from setting up any NEW YOKE OCTOBER, 1861. 171 Bryan v. Bowles. other defence, they could in no way be affected injuriously by it. The order at Special Term should be affirmed. OLIVER BRYAN and others, v. CHARLES S. P. BOWLES. The registry of a vessel at the Custom House is prima facie evidence to charge a person as owner only where he is connected with its procurement, or in some way adopts it as his act. Where he actually procures such registry, and makes affidavit stating that he is owner, it is evidence to charge him, although it may be rebutted. Where a bill of sale, absolute on its face, bore date, June 1856, and the regis- try pursuant thereto was made December, 1857, evidence to show that the bill of sale was by way of mortgage, and did not take effect absolutely till the later date, and that the vendee did not enter into possession until such later date, is proper, and should be admitted to rebut the presumption of ownerahip, in an action to charge the mortgagee as owner of the ship. This was an action commenced in the Marine Court, to charge the defendant for certain supplies furnished to the brig Ida Kaynes, in the month of September, 1857. The defendant denied that in the month of September, 1857, he was the owner of the brig, or promised to pay for such supplies. On the trial, the plaintiff offered in evidence the registry of the brig, dated March 7th, 1857, and also an affidavit of ownership, made December 21, 1857, by the defendant. Also a bill of sale absolute on its face, from the former owners of the brig, dated June 27th, 1856. They also proved the delivery of the articles. Some evidence was given to prove a promise by the defendant to pay for the articles. The defendant objected to the admission of the papers above named in evidence, but the objections were overruled. 172 COURT OF COMMON PLEAS. Bryan v. Bowles. The defendant moved for a non-suit, which was denied, and thereupon offered in evidence proof that the defendant was not the beneficial owner till October, 1857, and a defeasance made by defendant to the former owners, also proof that he had not eniployed the sailors or taken possession from that time. The Court excluded the defeasance and also certain evidence tending to show that the former owners exercised acts of own- ership over the ship. The justice found that the defendant was the owner, and as such, liable. On appeal, the General Term sustained the judg- ment, and the defendant appealed to this Court. Osborn E. Bright, for appellants. I. The motion for a nonsuit should have been granted. The plaintiffs had failed to show that the defendant had any beneficial interest in the vessel. The registry raises no pre- sumption of ownership, nor of liability for supplies. The ob- ject of the registry is merely to show the national character of the vessel ; and the documentary title at the Custom House in one person, .may well consist with the possession and control of the vessel in another. 1 Greenl. Evidence, 494 ; Leonard v. Huntington, 15 Johns. 298 ; Mackenzie v. Pooley, 34 Eng. Law and Eq. 486. There is no pretence that the supplies were furnished on the faith of this registry. To impose liability for these supplies upon the defendant, it must be shown that credit for them was given him (Abbott on Shipping, 40, 41, seventh Am. ed.). It appears affirmatively (fol. 38), that the credit was not given to him. The alleged promise of the de- fendant to pay for the supplies was without consideration, and is conditional. II. The evidence offered to show who was in possession and control of the vessel, and who was the beneficial owner, and by whom the contract for these supplies was made, should have been admitted. Such facts are the only tests of liability (Abbott on Shipping, 48, 7 Johns. 308.) The ruling of the Court was erroneous, as respects evidence of ownership. Sharp v. U. S. Ins. Co., 14 Johns. 201. And it was erroneous in seeking to make the defendant's affidavit operate as an estoppel. Dazell v. OdeU, 3 Hill, 219. NEW YORKOCTOBER, 1801. 173 Bryan v. Bowles. The exclusion of the defeasance was also erroneous. The defendant had the right to show that the bill of sale was a mortgage. As mortgagee, not in possession, he was not liable. JBirbeck v. Tucker, 2 Hall, 121 ; Ring v. Franklin, 2 Hall, 1 ; Abbott on Shipping 52 ; Brook* v. Bonsey, 17 Pick. 441 ; Mclntyre v. Scott, 8 Johns. 159. Benedict, Burr & Benedict, for the respondents. BY THE COUET. HILTON, J. The plaintiffs' right to recover depended upon their establishing that the supplies were fur- nished upon the credit of the vessel, and that at the time the defendant was owner. The evidence on their behalf showed that the supplies were furnished in September. 1857, to the vessel, upon the order of her captain, and afterwards, while the vessel was at sea, on the bill being presented to the defendant, he promised to pay it when the captain arrived and saw the papers. Also, that in June, 1856, a bill of sale of the vessel was made and delivered to the defendant, by Deagreda, Jove & Co., the then owners, and upon which, in December, 1857, he procured her to be registered at the Custom House, in his name, by making an affidavit that he was the true and only owner, and that no other person was directly or indirectly interested in- her by way of trust, confidence, or otherwise ; the affidavit and claim of ownership therein referred to, having been made, as was shown, with reference to the bill of sale, which upon its face was absolute and unqualified. In opposition to the case thus made out, the testimony of the defence was in substance, that at the time the supplies were ordered by the captain, he was accompanied by the general ship agent, or as he calls himself, the port admiral, of Deagreda, Jove & Co. ; but the captain gave his own orders. That the captain and owner were employed by Deagreda & Co., but the defendant subsequently paid them, and also paid the bill of the port admiral referred to, for the month of September, 1857. That the bill of sale was taken as collateral security for an in- debtedness of Deagreda & Co. to the defendant, which they failed to pay, and on their becoming insolvent, and making to the defendant a general assignment, in October, 1857, he be- 174 CO QKT OF COMMON PLEAS. Bryan v". Bowles. came, as he says, "in good faith, the actual owner of the vessel," claiming to be such under the transfer in June, 1856, and not under the assignment. He also testified that, to the best of his " knowledge, recollection and belief," he never pro- mised to pay the plaintiffs' bill. Upon this evidence, the case presented substantially but a single question of fact for the determination of the Justice, and that was, whether, at the time the supplies were furnished, the defendant was the owner of the vessel ? The Justice has found this question in the affirmative, by giving judgment against the defendant, and I am unable to perceive any sufficient ground for interfering with his decision, unless some of the de- fendant's exceptions to the admission or exclusion of evidence offered at the trial are to be regarded as material. Such of those as may be considered of sufficient importance to require examination, I will now advert to in the order in which they are presented in the case. 1. As to the introduction of the registry of the vessel at the Custom House, with the affidavit of the defendant, upon which registry was applied for and procured. There can be no doubt, that without proof to connect the party with the register, as being his direct or adopted act, it has been frequently held not to be even prima fade evidence to charge him as owner (Sharp v. United Ins. Co., 14 Johns. 201; Leonard v. Huntington, 15 Id. 299; Fraser v. Hopkins, 2 Taunt. 5; King v. Franklin, 2 Hall, 1, 20; 3 Kent, 150); but it is otherwise when he is connected with its procurement. It then becomes competent proof, and like any other act or claim of ownership of the party, may be admitted in evidence. Here it was not denied, indeed it was conclusively shown, that the defendant not only personally procured the registry, but in addition, made an affidavit stating that he was such actual owner, and the Justice did right, therefore, in admitting the evidence. Although not conclusive, yet it was some proof bearing upon the question of ownership, and was entitled to be considered by the Justice, in arriving at his determination upon that branch of the case. 2. The defendant offered to show in substance, by several questions put to the witness Bushman, that prior to October, 1857, the vessel was in the actual possession of Deagreda & Co., NEW YOKE OCTOBER, 1861. 175 Bryan v. Bowles. and was under their control and management for the voyage in respect to which the supplies were furnished ; but the Judge excluded the proof, holding that the Custom House register was evidence of ownership, and that the defendant could not contradict his affidavit upon which the registry was procured. The Judge also, at a subsequent stage of the trial, excluded a written defeasance given by the defendant to Deagreda & Co., at the time of receiving the bill of sale, which the defen- dant offered in evidence, to show that the bill of sale was only to be held as a mortgage. I think the exclusion in each instance was clearly erroneous. The evidence offered rnjght have had the effect of overcoming the case made by the plaintiffs, absolving the defendant from liability, by showing that the bill of sale was in effect, a mort- gage executed as. collateral security for the payment of a debt ; that the supplies were furnished to the vessel before the defen- dant had taken possession, and while the register remained in the name of Deagreda & Co., the mortgagors, who had the control and management of her. The defendant's affidavit, upon which he procured the registry, did not work an estoppel against proof of this character, and it should not have been considered. Mclntyre v. Scott, 8 Johns. 159 ; Champlin v. Sutler, 18 Id. 169 ; Jackson v. Vernon, 1 H. Black. 114 ; Cfiinnery v. Blackburn, Id. 117; Thorn v. Hicks, 7 Cow. 697. A mortgagee of a vessel out of possession, cannot be held for supplies furnished upon the order of the master acting under the mortgager, when lie does not receive the profits of the voyage, and the credit is not in fact given to him. Hes- kith v. Stevens, 7 Barb. 488 ; King v. Franklin, 2 Hall, S. C. 1 ; Birleck v. Tucker, Id. 121 ; 3 Kent Com. 139. It is other- wise, however, when he has taken possession and procured a register in his name, and supplies are thereafter furnished upon the credit of the vessel and owners. Miln v. Spinola, 4 Hill, 177 ; S. C. affd. 6 Id. 218 ; Abbott on Shipping, 7 Am. ed. 51 and note. Judgment reversed. 176 COURT OF COMMON PLEAS. Hopkins v. Wyckoff. JOHN HOPKINS v. SAMUEL S. "WYCKOFF. The right to recover the penalty given under the pilot act of 1853, as amended 1854, ch. 196 ; 1857, ch. 243, (2 Rev. Stat. 5th ed. 434, 57), for the refusal of the master of a vessel to accept the services of the pilot first offering, is confined to those pilots who have been duly licensed, as in the act pre- scribed. Held, therefore, that a pilot not licensed by the Board of Commis- sioners of Pilots, under the laws of this State, although licensed under the statute of the State of New Jersey, and authorized by the act of Congress, (Dunlap's Laws, U. S., 924), to pilot vessels coming in or going out of the port of New York, cannot sue for the pilotage fees allowed by the pilot laws of this State, on the refusal of the master of a vessel to employ him. APPEAL by the plaintiff from a judgment of the First Dis- trict Court, dismissing the complaint. The plaintiff alleging that he was a pilot, duly licensed and authorized by the laws of the United States and the statutes of the State of New Jersey, to pilot vessels to and from the port of New York, by way of Sandy Hook,"brought the action against the defendant, as master of the schooner T. A. "Ward, to recover the pilotage fees, under section 29, of the laws of 1857, vol. 2, p. 502, for the refusal of the defendant to accept the services offered by the plaintiff as such pilot. The plaintiff was nonsuited, and the complaint dismissed, on the ground that the statute of this Sta,te, under which the action was brought, applied only to Sandy Hook pilots, licensed under the laws of the State of New York, and did not compre- hend New Jersey pilots. The plaintiff then appealed to this Court. B. F. Hudgett^ for appellant. Wm. J. Haskett, for respondent. BY THE COURT. HLTON, J. The plaintiff is a pilot duly licensed under the laws of the State of New Jersey. It appears NEW YOKK NOVEMBER, 1861. 177 . Hopkins v. "Wyckoff. that on August 5th, 1858, at the city of New York, he offered his services as pilot to the defendant, who was then captain of the schooner T. A. "Ward, which had been cleared for Cuba, and that he was the first pilot thus tendering his services as such to the defendant. For the refusal by the defendant to accept the services thus offered, the plaintiff claims to recover pilotage fees under section 29, as amended by " an act to pro- vide for the licensing and government of pilots, and regulating pilotage of the port of New York," passed June 28, 1853. See Laws 1857, vol.-l, p. 502. This act, as its title indicates, provides for the licensing of pilots of the port of New York, and prescribes rules for their government and regulation. To this end it established a " Board of Commissioners of Pilots," vesting it with power to license as pilots such persons as may be found, on examination, duly qualified ; to make certain rules for their regulation, and with authority to revoke or annul the license for intoxication or misconduct of the pilot while on duty, &c. But it is pro- hibited from granting a license to any person holding an authority to act as pilot from or under the laws of any other State. See 2 R. S. [5 ed.] 430, sec. 37. The portion of the section of the act under which the plain- tiff claims to recover, is in these words : " All masters of foreign vessels, and vessels from a foreign port, and all vessels sailing under register, bound to or from the port of New York, by way of Sandy Hook, shall take a licensed pilot, or in* case of refusal to take such pilot, shall, himself, owners, or con- signees, pay the said pilotage as if one had been employed ; and such pilotage shall be paid to the pilot first speaking or offering his services as pilot to such vessel." (Id. 434, sec. 57). Taking into view that the pilotage fees here claimed to be recovered, are such as are given by previous sections of the act to a pilot licensed by the Board of Pilot Commissioners, it is, in ! y opinion, too clear to admit of a doubt, that the pen- alty given for a refusal to accept the services of the first pilot offering, is confined to the pilots who have been duly licensed, AS in the act prescribed, and as the plaintiff is one of the class of persons which the Board is expressly prohibited from licensing, it follows that he can have no claim whatever to the benefits which the act confers. 12 178 COURT OF COMMON PLEAS. Johnson v. Dixon. Nor does the act of Congress^, passed March 2d, 1837 (See Dunlap's Laws U. S., 924), aid his claims in any manner. That only goes to the extent of permitting a master or com- mander of a vessel coining in or going out of this port, to employ any pilot licensed either by the laws of New York or New Jersey, and it thus controls those parts of the act in question which make it obligatory upon the master to accept the services of a licensed pilot, under the penalty declared. But for this law of Congress, every master of a vessel bound to or from this port, would be obliged, under a penalty, to accept a pilot who had been licensed by the Board of Commissioners of Pilots, provided such an one should tender his services, whereas by it he is permitted to accept instead, a pilot licensed under the laws of New Jersey, provided a New York pilot has not previously offered himself; as it is only when a New York pilot shall first speak and offer his services that he becomes entitled, upon refusal, to the penalty prescribed. The Justice was right in holding that the plaintiff had no cause of action, and his judgment should be affirmed. MARY JOHNSON v. SUSAN DIXON. A tenant from month to month is under no obligation to make substantial repairs. The lessor is bound to ma"ke such repairs as are necessary to make the pre- mises secure and safe, for the purposes for which they are rented ; and if its insecurity is known to him, it is negligence not to do so. The rule that tenant takes premises at his own risk (caveat er/iptor), does not apply where the premises become dangerous or uninhabitable by the wrongful act or default of the landlord. Where a stall was leased for the purpose of keeping a horse, and the tenant informed the landlord of a defect in the floor, and the landlord gave an explanation of it, and said he would attend to it, and, through relying on NEW YORK NOVEMBER, 1861. 179 Johnson v. Dixon. such explanation and promise, in consequence of the insecurity of the floor, the horse was injured Held, that this was negligence on the part of the landlord, and that the tenant might recover damages for such injury. The action was brought in the Marine Court, to recover the value of a horse. It appeared on the trial that the plaintiff had rented a stall from the defendant at two dollars and fifty cents per month ; that there was an excavation under the stall, of which plaintiff was ignorant ; that the flooring of the stall was in bad condition, and that plaintiff called the attention of the defendant's agent to it ; that defendant's agent gave as an excuse, that it had last been occupied by a kicking horse, and that he would attend to it ; that the next night the plaintiff's horse had slipped his leg through, and injured itself so that it died. The plaintiff had judgment, which was affirmed at General Term, and the defendant appealed to this Court. T. Stuyvesant, for the appellant. I. There was no evidence that the defendant ever agreed that the stall was in a safe condition. II. The plaintiff was aware that the stall was not secure, and should have repaired it ; and not having done so, she must bear the loss. Kastor v. Newhouse, 4: E. D. Smith, 20. HI. In the absence of any agreement in regard to repairs, the plaintiff cannot call on the defendant to make them. Blunt v. Aifen, 15 Wend. 522. Charles Davies, for respondent. BY THE COURT. DALY, F. J. If the injury to the plain- tiff's horse was the result, exclusively, of a wrongful act, or of negligence on the part of the defendant, the judgment was right, and that depends upon whether the defendant, after being advised that a piece of wood had come off the floor of the stall, was bound to do what was necessary to render the floor secure and safe. It was proved that there was an exca- vation under the stall, of about ten feet, and that the flooring of the stall was rotten. It was fair to presume, from the de- fendant's being the proprietor of the stall, that this was known to him. -It was not known to the plaintiff when she rented the stall, nor, as would appear, to her son, who had the charge of 130 COUET OF COMMON PLEAS. Johnson v. Dixon. the horse. The son called the attention of the defendant's agent, with whom the agreement for the use of the stall had been made, to the fact that the piece of wood had come out of the floor, and that the stall was not fit for the horte, and received for answer, that a butcher had had a kicking horse there, and that he, the agent, would attend to it. The morn- ing after this was said, it was found that the horse had broken through the floor ; his hind leg was found through it, and in consequence of the injury thus received, the animal died. After the accident the defendant had the old floor torn up and a new one put down. The plaintiff hired the use of the stall from the defendant's agent, for two dollars and tifty cents a month, and under a let- ting like this she was under no obligation to take up the defec- tive floor and put down a new one. Where there is no express agreement on either side, the tenant, under such a holding is not bound to make repairs of so substantial and general a nature. Horse/all v. Mather, Holt N. P. C. 7; Taylor's Landlord and Tenant, 163. If, as appears from the defendant's net, this was what was necessary to be done, to make the stall secure and safe for the purpose for which it was used, the obligation rested upon the defendant to do it, and such being the fact, the Justice was right in holding that it was through her negligence in not doing it, that the accident happened. It is urged that under this letting the relation of landlord and tenant existed, and tha.t as there was no express agreement on the part of the defendant to put or keep the stall in repair, the plaintiff for an injury to her property, from the stall's being out of repair, must bear the loss. It is undoubtedly the rule in tenancy of no greater duration than from year to year, where there is no agreement on the part of the landlord to re- pair, that the tenant takes the premises as they are, for better or worse, and runs the hazard of their being, or of their be- coming, untenantable. Post v. Vetter, 2 E. D. Smith, 248 ; Cleves v. Willoughby, 7 Hill, 83. The principle upon which the rule of caveat emptor is founded, is as applicable in such a case as in the purchase of a chattel. But this rule has its limit- ation, and does not apply where the premises become danger- ous or uninhabitable by the wrongful act or default of the landlord himself. Izon v. Gortin, 5 N. C. 501.. In this case, NEW YORK NOVEMBER, 1861. 181 Johnson v. Dixon. the defendant's agent was advised of the condition of the floor, and but for his statement as to the cause which produced it, and his promise to attend to it, the horse might have been withdrawn and the accident prevented. Neither the plaintiff nor her son could be deemed guilty of negligence. The son knew nothing of the excavation beneath the floor, but sup- posed that the floor rested upon solid ground, and the assur- ances given him by the defendant's agent were of a nature to quiet all apprehension. That the horse was suffered to remain upon a floor that was insecure and dangerous, until the accident happened, was by the default of the defendant's agent, in not doing what he had promised to do. The defendant being under an obligation to repair the floor, and the defendant's agent having promised to attend to it, the Justice had a right to conclude that the horse, after the conversation between the plaintiff's sou and the agent, was left in the stall upon the faith of that assurance. No attention was paid to the floor by the agent until the horse fell through it, and it was in consequence of this default and neglect that the floor gave way. That the floor was insufficient to support the horse at the time when the accident happened, was owing exclusively to the wrongful act or default of the defendant or her agent, and to such a case the rule abovo referred to does not apply. The judgment should be affirmed. BRADY, J. Concurred. HILTON, J". [dissenting.'] I can perceive no ground upon which this judgment can be sustained. It is too late now to question the propriety of the rule that a landlord is under no obligation to repair demised premises without an express covenant on his part to that effect, and that to create such a duty, a positive stipulation, an express promise or covenant, is necessary to be shown. This rule of law lias become so fixed and settled by a long series of adjudications as applicable to every species of tenancy, whether at will or sufferance, or for any definite period of time, that any change in it which may be needed by the pre- sent condition of society must be effected by the Legislature directly, and not indirectly by the Courts, whose duty it ia to 182 COURT OF COMMON PLEAS. Peterson v. Walsh. declare the law as they find it established. 4 Kent, 110 ; Mum- ford v. Brown, 6 Cowen, 475 ; Taylor's Landlord and Tenant, 155, and cases cited ; Cleves v. Willough'by, 7 Hill, 83 ; How- ard v. Doolittle, 3 Duer, 464-'; Post v. Vetter, 2 E. D. Smith, 248 ; Kastor v. Newhouse, 4 Id. 20 ; Hazlett v. Powell, 30 Penn. 293. * , The maxim cdveat emptor is equally applicable to the trans- fer of real as of personal property ; and upon a demise, in the absence of any express agreement on the part of the landlord, the lessee takes the premises for better or worse, and although they may be let for a particular purpose, there will be no war- ranty implied that they are fit to be used for the purpose for which alone they may have been demised. Thus, in the present case, although the premises hired by the plaintiff of the defendant was a stall in a stable, and the sole object, of hiring the stall was obviously for the purpose of keep- ing a horse in it, yet there was no implied warranty on the part of the defendant that it was fit for such a purpose. If the plain tiff had any doubts as to the stall being fit for the object intended by her, she should, at the time of hiring, have pro- tected herself by an express agreement on the subject ; but not having done so, she must abide the consequences. Judgment affirmed. CHBIBTIAN PETERSON v. LEWIS WALSH and oth&rs. The penal laws of a State being strictly local in their character and effect, there can be no recovery for an offence under them committed beyond the territorial jurisdiction of the State. The statute (2 Rev. Stat. 5th ed. 435, 57), requiring masters of certain vessels coming into the port of New York to accept the services of a licensed pilot first offering his services, and imposing a penalty in case of refusal, cannot control or affect the master of a vessel prior to his arrival within the terri- torial jurisdiction of tlie State. NEW YOKK NOVEMBER, 1861. 183 Peterson v. Walsh. A pilot, therefore, who spoke a vessel three hundred miles at sea, and tendered his services, which were refused, cannot recover pilotage fees under the statute authorizing such actions. Where, on an appeal from a judgment, by the defendant to the General Term, the facts were agreed on by the parties, and could not be varied by any evidence which might be adduced on a new trial, and a reversal was had, Held, that final judgment for defendants should be given on such reversal. APPEAL by the plaintiff from a judgment of the Marine Court at General Term. The facts fully appear in the opinion of the Court. H. R. Cummings, for appellant. Charles Donahue, for respondent. BY THE COURT. HILTON, J. It was admitted on the trial, that the plaintiff is a pilot of the port of New York, duly licensed by the " Board of Commissioners of Pilots," and the defendants are owners and consignees of the ship E. Sherman. That on July 14th, 1859, while the ship was on a voyage from Liverpool, bound to this port, and when at a point in the At- lantic ocean, about three hundred miles east of Sandy Hook light house, she was spoke by the plaintiff, who, then and there, tendered her master his services as such pilot, to pilot her into port, that the master refused to take the plaintiff aa pilot, although he was the first one speaking or offering his ser- vices as such ; the reason then given for such refusal being, that the ship was not on pilot ground. That subsequently, and before her arrival at New York, a pilot was taken and his eer vices were paid for. The ship at the time was drawing twenty feet of water. Upon these facts the Justice gave judgment in favor of the plaintiff for one hundred and two dollars, and from a reversal of which, by the General Term of the Marine Court, the plain- tiff appeals to this Court. This judgment was based upon section 29 of " an act to pro- vide for the licensing and government of t,lie pilots, and regu- lating pilotage of the port of New York," passed June 28th, 1853, (see Laws, p. 921), as amended April 3d, 1857. (See Laws, p. 500. ; 2 R. S. [5 ed.] 435), the portion of which mate- 184 COURT OF COMMON PLEAS. Petereou v. Walsh. rial to be considered, is in these words : " All masters of foreign vessels and vessels from a foreign port, and all vessels sailing under register bound to or from the port of New York, by the way of Sandy Hook, shall take a licensed pilot ; or in case of refusal to take such pilot, shall, himself, owners, or con- signees, pay the said pilotage as if one had been employed ; and such pilotage shall be paid to the pi|ot first speaking or offering his services as pilot to such vessel ;" the rates or fees of pilotage being specified in section 14 of the same act, as amended by chap. 190, of the laws of 1854. The right of this State to enact such a law cannot now be questioned, although for some time it seemed to be considered a subject of much doubt. See Joint Resolution, Laws 1847, p. 484 ; also many similar resolutions in previous sessions of our Legislature. The question, however, was finally disposed of and put at rest by the United States Supreme Court, in Cooley v. The Port Wardens of Philadelphia, 12 Howard U. S. R. 209, decided in 1851. It was there held that although the power to " regulate commerce with foreign nations," &c., contained in the Federal Constitution (see art. 1, sec. 8, sub. 3), includes the regulation of navigation, to which the subject of pilots and pilotage bears an important relation, and that, therefore, their regulation is within the grant to Congress of the commercial power, yet, that such grant does not per se deprive the States of all power to regulate pilots and pilotage within their respective territories. The regulation of commerce comprehends various subjects quite unlike in character, some requiring a single and uni- form rule, operating equally upon the commerce in every part of the United States, while others, like the act in question, de- mand that diversity which alone can meet the local necessities of navigation. In the first class of cases, the power -is vested exclusively in Congress, but in the latter, the several States possess the power, controlled, however, by such general regu- lations upon the subject as Congress may see fit to establish. I may add that there exists onty one instance where it has manifested an intent to interfere with the legislation of the States in this respect, and that is the act of March 2d, 1837 (see Dunlop'sU. S. Laws, 924; Stat. at Large, 153), which de- clares that it shall be lawful for the master or commander of NEW YORK NOVEMBER, 1861. 185 Peterson v. Walsh. any vessel coming into or going out of any port situate upon waters which are the boundary between two States, to employ any pilot duly licensed or authorized by the laws of either of the States bounded on the said waters, to pilot said vessel to or from said port ; any law, usage or custom to the contrary, not- withstanding. But although the power to enact this law exists in our State, it has no'intrinsic force, and cannot operate ex propria vigore, beyond its territory ; it being an universal rule, that laws have no force beyond the territories of those who make them. And especially is this rule applicable where the law is but a munic- ipal regulation of a State respecting a subject which is not mala in se. 2 Kent's Com. 457 ; Story's Conflict of Laws, sec. 22, p. 24 ; Sedgwick on Constitutional Law, 70, 80 ; Bank of Augusta v. Earle, 13 Peters, 591, 584. % The general jurisdiction of a State extends into the sea as far as a cannon shot will reach, but no further, and this distance is calculated to be a marine league. Bowyer on Univer. Pub. Law, 361 ; 1 Kent's Com. 29 ; Vattel, 207, and also an act of Congress, June 5, 1794, ch. 50, recognizing this limitation, by authorizing the District Courts to take cognizance of all captures made within a marine league of American shores. And as penal laws are strictly local in their character and effect, it follows, as a natural and necessary consequence, that there can be no recovery for an offence committed beyond this territorial jurisdiction ; the rule being that a State can only punish for offences committed within its limits, and especially is this true of those offences which consist merely in violating its municipal laws and regulations. 1 Phillimore on Int. Law, 356 ; Scovitte v. Canfidd, 14 Johns. 338 ; Van, Seaick v. Ed- wards, 2 Johns. Cases, 355. Besides, the act under consideration, as its title indicates, is but a port regulation, requiring, among other things, that all vessels of a certain class, coming into the port of New York, shall, upon their entering the territorial jurisdiction of the State, accept the services of a licensed pilot, provided such a pilot shall tender his services ; and in no proper sense can it be regarded as controlling or affecting the conduct of a master of a foreign vessel prior to his arrival within such jurisdiction. To hold otherwise would, it seems to me, require us to declare 186 COURT OF COMMON PLEAS. Loomis v. Decker. that a pilot duly licensed by our State authority must be ac- cepted by any vessel bound to this port, wherever, upon the ocean or elsewhere, he may see fit to tender his services, whether the tender be made three hundred or three thousand miles distant. w\ The mere statement of such a proposition refutes itself. The General Term of the Marine Court was, therefore, right in revereing the judgment, but as the facts were agreed on by the parties, and would not be varied by any evidence which might be adduced upon another trial, in addition to the reversal, there should have been given a final judgment in favor of the defendants. A, The case must be sent back to the Marine Court, to the end that the proper judgment may be thereon given. BILEY LOOMIS and others v. NICHOLAS H. DECKER. To revive a debt barred by the statute of limitation, where no promise to pay is shown, but one is sought to be implied from an acknowledgment of the indebtedness, the acknowledgment should contain an unqualified and direct admission of a pre^ous subsisting debt, for which the party is liable, and willing to pay ; and the recognition must be unaccompanied by any circumstance calculated to repel the presumption of an intent or promise to pay. Where the debtor, in a letter to his creditor, said, " I don't recollect when the bill was made ; but if it is all right, I will make it satisfactory," and added that he had certain railroad bonds, which he hoped would be accepted hi payment, " as money was out of the question;" Held, sufficient to take the case out of the statute. It is the province of the Court, sitting as a jury, to find, as matter of fact, whether a new promise, under the circumstances, might fairly be implied, and a finding by the Court hi this respect, like the verdict of a jury, must be deemed final. NEW YOKE. NOVEMBER, 1861. 187 Loomis v. Decker. APPEAL by the defendants from a judgment of the Marine Court, at General Term. The action was brought to recover for three bills of powder sold by the plaintiffs to the defendant, in 1852, on a credit of eight months. On the trial the defendant admitted that " the powder mentioned in the complaint was sold and delivered to the defendant by the plaintiffs, in the manner and at the times and prices therein alleged," and relied solely on the Statute of Limitations as a defence. The plaintiffs, to take the case out of the statute, proved the rendition by plaintiffs' attorneys of the bill sued for in this action to defendant, December 28th, 1859, with a request of. payment, and a letter in reply by defendant to plaintiff same date, as follows NEW YORK, Dec. 28, 1859. MESSRS. Looms & MASTERS : Gents, I got a line from lawyers here this afternoon, a bill of one hundred and fifty-four dollars and thirty- eight cents. I don't recollect when the bill was made or when I had the powder. Will you send the bill, and if it is right I will make it all satisfactory. I don't want it sued. I have bonds on the Staten Island R. R. Co. I will pay you in, if the bill is all right. The bonds I take at eighty-five cents on the dollar. You had better write to your counsel to take the bonds, and close the matter right .up. I hope you will do it, for money is out of the question. Please answer me at once. Yours, respectfully, N. H. DECKER. The Court below ordered judgment for the plaintiffs. The General Term of the Marine Court having affirmed the judg- ment, the defendant appealed to this Court. H. W. Dewey (Dewey & Savage), for appellants I. An acknowledgment, in order to raise the presumption of a promise to pay a debt barred by the Statute of Limitations, must be unconditional, and express a willingness to pay it in money. 188 COUKT OF COMMON PLEAS. Loomis v. Decker. " II. Where a promise to pay a debt, barred by the Statute of Limitations, in certain specific articles, the promise is con- ditional, and the plaintiff is bound to show that he offered and was ready to accept the specific article. Bush v. Barnard^ 8 Johns. 407. Wbodbury & Churchill, for respondent. I. A promise to make satisfactory, made to a creditor, is equivalent to a promise to pay. " Satisfactory," in this con- nection means satisfactory to the creditor. Pitikerton v. Brady, 8 Wend. 600 ; 5 Binney, 579 ; Sliiby v. Champlin, 4 Johns. 461 ; McGrtry v. McKisson, 4 Johns. K. C. 510 ; Ed- mons v. Goaten, 9 Eng. L. & Eq. 202. II. The promise to make the bill all satisfactory, i. e., to pay it, was based on a single condition, " that it was all right." This became an absolute promise, sufficient to take the case out of the statute on proof that the bill was right. Heyling v. Hastings, 1 Salk. 29 ; Trueman v. Fenton, Cowp. 148 ; Slate v. Town, 38 Verm. 771 ; Paddock v. Colby, 18 Verm. 485 ; Deem v. Pitts, 10 Johns, 35 ; Mosher v. Hubbard, 23 .Johns. 510. BY THE COURT. HILTON, J. To revive a debt barred by the Statute of Limitations, where there is no express promise to pay shown, but one is sought to be implied from an acknow- ledgment of the indebtedness, the acknowledgment should contain an unqualified and direct admission of a previous subsisting debt, for which the party is liable and willing to pay; or, in other words, there should be a clear recognition of the present existence of the demand from which a promise may be implied, and the recognition must be unaccompanied by any circumstance calculated to repel the presumption of an intent or promise to pay. Sands v. Gelston, 15 Johns. 511 ; Purdy v. Austin, 3 Wend. 189 ; Bell v. Morrison, 1 Peters, 357 ; Stafford v. Bryan, 2 Paige, 45 ; Allen v. Web- ster, 15 Wend. 284 ; Stafford v. PicJeerson, Id. 302 ; Blood- good v. Bruen, 4 Selden, 362 ; Wakeman v. Sherman, 5 Id, 85 ; Mosher v. Hubbard, 13 Johns. 510. Tested by these rules, the letter of the defendant was suflfi- NEW YORK NOVEMBER, 1861. 139 Loomis v. Decker. cient to charge him with the liability sued on. It was, in sub- stance, that he did not recollect when the claim arose, but not- withstanding this, if he had received the powder which formed the subject of the debt, and the bill for it was right, he would make it satisfactory. To this he adds, that he has certain Rajl Road Bonds which he had purchased at 85 cents on the dollar, and hoped they would be accepted in payment, as money was out of the question. The fair inference from snch language, I think, is, that on the indebtedness being shown to have existed, he would make it satisfactory to the plaintiffs by paying it. Heyling v. Hastings, 1 Salk. 29 ; Starily v. Champlin, 4 Johns. 461. That he had certain property more than sufficient to pay the claim, but no money, and he therefore hoped that the plaintiffs would be satisfied by taking the property at a rate of value to be adjusted. Brown v. Reach, 24 Conn. 73 ; Edmonds v. Goater, 9 Eng. Law & Eq. 204 ; Hooper v. Stevens, 7 Car. & Payne, 261. There was nothing in this calculated to raise an inference that he intended to avoid the payment of the claim, provided its correctness was shown, and as its validity was admitted by him at the trial, I think the Justice properly construed the acknowledgment to be such a one as from which a promise to pay might fairly be inferred, and his finding, in this respect, like the verdict of a Jury, should be regarded as final, under the circumstances shown, and ought not to be disturbed. Watkiw v. Stevens, 4 Barb. 160. Judgment affirmed. 190 COUKT OF COMMON PLEAS. The Boston Carpet Company v. Journeay. THE BOSTON CARPET COMPANY v. ALBERT JOURNEAY, JR., and others. Where a factor, agent, or broker misconducts himself in the business of his agency, so that his services have not, by reason of his misconduct, negli- gence, or fraud, been of any benefit to his principal, or have not proved as beneficial as they otherwise would, but for his misconduct, he forfeits his right to commission. But where a commission merchant in rendering accounts of his sales, returned certain sales as made at a lower rate than appeared on his books, Held, that although the principal might recover the difference between the amount of the sales actually made and those returned, yet, no fraud being proved, he could not recover the commissions already paid, and allowed to the merchant for services actually performed in and about the business. APPEAL by the defendant from a judgment entered at Special Term on the report of a referee. In December, 1852, the defendants were jobbers of carpets and other goods in the city of New York, selling mostly to re- tailers in the Southern and Western States, and in the northern and western counties of this State. Under date of December 10, 1852, an agreement in writing was entered into between one Crawshaw and defendants, by which Crawshaw was to manu- facture and ship carpets to defendants for sale on commission, and defendants were to make advances thereon. The only part of this agreement which is material is the 4th clause, in these words : Fowrih. That said firm of A. Journeay, Jr. & Co. shall guaranty all sales of said carpets which they may make, and shall keep all on hand covered by insurance against fire, and in addition to all charges for insurance, storage, drayage, labor, and other customary charges with commission merchants in New York, they shall be entitled, as a full compensation for NEW YORK JANUARY, 1862. 191 The Boston Carpet Company v. Journeay. their services, to a commission of six per cent, on the amount of all sales to customers of the first class, and upon the amount of all sales to bustomers of the second class an additional and further commission, so that the sales to customers of the second class shall yield and produce to the parties of the first part as much, and no more, per yard, than the sales to customers of the first class, this additional premium being for the additional risk incurred, and for the longer period they may be obliged $o wait for the receipt of the proceeds ; it being also left to the said firm to determine who are the first and who are the second class of customers. Under this agreement the business was carried on with Crawshaw and his successors and assignees until September, 1853, the defendants from time to time receiving goods, mak- ing advances and rendering accounts sales. The sales were to small dealers, a large proportion of whom resided in distant places. In rendering the account sales, the defendants, in the case of sales to customers of the second class, returned the sales at the rate of sales to customers of the first class, instead of return- ing them at the actual rate, and then deducted the excess over the price to customers of the first class. In 1854, this action was brought, charging, amongst other things, that the defendants had rendered false accounts, and fraudulently retained a portion of the price for which the goods were sold, and claiming that they had, for this and other misconduct and fraud, forfeited their commissions. The defendants denied all misconduct and fraud, and justi- fied the return of the sales to customers of the second class at the prices for which sales were made to customers of the first class under the fourth clause of the agreement. The case was tried before a referee. The referee found against the defendants upon two of the charges contained in the complaint, to wit, the reclamations for short measure, and the withholding of a portion of the price for which some of the goods were sold. As a penalty for this, he forfeited the defendant's commission. The defendants appealed to the General Term. 192 COURT OF COMMON PLEAS. The Boston Carpet Coaipany v. Journeay. M. Porter and Wm. 3f. Euarts for appellants. I. The referee does not find, as a matter of fact, that the defendants were guilty of fraud or of intentional misconduct. His conclusion of law, that defendants did not earn, and were not entitled to commissions, is, therefore, not sustained by his finding of fact. There is no case where it is held that an agent forfeits his commission, except for fraud or wilful misconduct judicially established. The referee does not convict defendants of fraud, yet he punishes, them as if they were guilty. II. The cases where agents have been disallowed their com- pensation on account of neglect or misconduct, were cases where the agent was suing. We believe there is no case where the principal has been permitted to recover it back when once paid. Augustus F. Smithy for respondents. It is well established, that the agent who defrauds his prin- cipal earns nothing by way of compensation. (Smith's Mer. Law, 155 ; Sea v. Carpenter, 16 Ohio, 412 ; Thurst v. Hold- ing, 3 Taunt, 31 ; Ridgway v. Ludlow, 3 Halst. Ch. R. 123 ; 1 Parsons on Contracts, 84, and Cases cited ; Dunlop's Paley's Agency, 104, note /}. BY THE COURT. HILTON, J. If the sales made were not all to customers such as are denominated in the agreement be- tween the parties, as " first class," the defendants should have established the fact by proof ; not having done so, we must, assume, as the referee did, that they were unable to furnish any favorable evidence on the subject. The same view must be taken in respect to their claim for short measure in the goods consigned. If there was such a de- ficiency, the burden of proving the fact was upon them. But I do not agree with the referee in his conclusion upon the facts found, that the plaintiffs are entitled to recover back the commissions which they have heretofore allowed and paid to the defendants upon the sales made, and which have been actually earned under the agreement. I can find no precedent for such a recovery, nor am I able to perceive that it rests upon any established legal principle. NEW YOEK JANUARY, 1862. 193 The Boston Carpet Company v. Journeay. The rule undoubtedly is, that where a factor, agent or broker, misconducts himself in the business of his agency, so that his services have not, by reason of his misconduct, negligence, or fraud, been of any benefit to his principal, or have not proved as beneficial as they otherwise would but for his misconduct, he forfeits his right to compensation. One of the earliest cases upoH the subject is White v. Lady Lincoln, 8 Yesey, 363, where it appeared that the agent kept his accounts so loosely that the principal was unable to ascer- tain what amount of moneys belonging to him had actually been collected and received by his agent. LORD CHANCELLOR ELDON then said, that the Court must, for the safety of man- kind, lay down a rule not to be departed from only upon very special circumstances, that a man standing in the relation of agent, is bound to keep regular accounts of his transactions on behalf of his employer, not only of his payments, as in that case was done, but of his receipts ; and unless he did so, he should not be permitted to make a demand for his services in that relation. This rule not only commends itself, but has frequently been adverted to and applied, so that it is now settled that an agent must not only discharge all the duties of his employment with proper skill and fidelity, but in addition, must keep accounts of his transactions, and of all receipts and payments relating to the business entrusted to him (Farnsworth v. Gerrard ; 3 Camp. 38 ; Sea v. Carpenter, 16 Ohio, 412 ; Montrion v . Jefferys, 1 Car. & Payne, 113 ; White v. Chapman, 1 Starkie, 113; Lady Ormond v. Hutchinson, 13 Vesey, 53; Dodge v. Tileston, 12 Pick. 328) ; and his neglect in this respect, where- by his principal sustains injury, will deprive him of any claim for commissions or compensation. Chitty on Contracts, 548 ; Paley on Agency, 105 ; 1 Parsons on Contracts, 84. But ia the present case, upon the facts found by the referee, neither of those rules can be invoked in support of the judg- ment appealed from. It is not claimed that the defendants did not keep accurate accounts ; indeed, on the contrary, the- recovery here is based upon the entries in their books, by which it appears that the sales actually made by them of the- carpets consigned, were at higher rates than they were returned at in their accounts rendered to the plaintiffs ; and to 13 194 COURT OF COMMON PLEAS. Rogers v. Rogers. the extent of this difference the plaintiffs are clearly entitled to judgment as for moneys belonging to them in the hands of the defendants. But they cannot go farther, and recover back as a penalty for rendering those deceptive accounts the com- misions which they have heretofore paid and allowed the de- fendants, for the services they have performed in and about their business. . The judgment should, for these reasons, be reversed, as to the one thousand three hundred and twenty-five dollars and thirty-eight cents, being the amount of the commissions, with interest, and affirmed for the residue, without costs of this appeal to either party. Ordered accordingly. JOHN KOGERS v. JOHN H. ROGERS. Where a claim has been interposed in a former action, by way of set off, and has been duly passed upon in such action, it is res adjudicate, and the former action is a bar to a new action by the defendant against the plaintiff in the former suit. Husband and wife cannot be examined either for or against each other, except in cases where they are parties to the suit. The facts in the case are sufficiently stated in the opinion of the Court BY THE COURT HILTON, J. This judgment must be reversed, for two reasons. 1st. The defendant fully established his de- fence of prior adjudication; and 2d. The Justice erred in per- mitting the wile of the plaintiff to be examined as a witness upon the trial. It was conclusively shown that the claim here sued on was interposed by way of set off, in defence to a former action NEW YORKMARCH, 1862. 195 Rogers v. Rogers. brought before the same Justice between the same parties, ex- cept that they occupied the opposite position of plaintiff and defendant, and in which the Justice gave judgment for the de- fendant here, but the plaintiff in that action, rejecting and dis- allowing the set-off. The reason for the rejection does not appear either in the return in that case nor in this, but appellant's counsel suggests, that it was because the bill appeared to be on its face due and owing to the plaintiff in this action, as " agent ;" but however this may have been, it cannot be regarded by us on appeal. The evidence in the former case showed that the set off was actually due to the party as principal, and the only ground for its disallowance then would seem from the return to be, that the Justice gave greater credit to the testimony of the plaintiff in that suit, in opposition to the claim by way of set off, than he did to that of the defendant in support of it. But apart from this, a fatal objection to the judgment con- sists in the admission of the wife of the plaintiff as a witness upon the trial. The law has not changed the former rule which prevented a husband or wife being examined as a wit- ness, either for or against each other, except in cases where they are parties to the suit. Barton v. Gledhill, 12 Abbott, 246 ; Hasbrouck v. Vandervoort, 5 Seld. 153. This rule was not founded upon the ground of a pecuniary interest in the event of the suit, and therefore is not obviated by sec. 398 of the Code, which declares that no person offered as a witness shall be excluded by reason of his interest in the event of the action, but rests upon the nature of the marriage relation and the dis- abilities it imposes, and owes its origin to principles of public policy. Here the wife was not a party to the suit, and there- fore was not a competent witness, either for or against her hus- band, and should have been excluded. Code, sec. 399. Judgment reversed. 196 COURT OF COMMON PLEAS. Fox v. Duff. MAET Fox v. HENBT DUFF. A married woman who hires premises in her own name has an interest therein within the meaning of Laws of 1849, chap. 375, p. 528, and may main- tain an action for a trespass thereon in her own name. APPEAL by the defendant from a judgment of the Fifth Dis- trict Court The defendant was the owner of certain premises in Mott street, in this city, which he had rented to the plaintiff, and received the rent for up to the 1st of May, 1861. On the 1st day of May, 1861, and while the plaintiff was absent, the de- fendant broke the door open with an axe, took out the win- clows, and removed the furniture of the plaintiff from the pre- mises, and threatened to injure the plaintiff. The plaintiff brought action for the trespass committed. It appeared on the trial that the plaintiff was a married woman ; that her husband went to California before she hired the premises in question, and that the rent therefor was paid by her out of her own earnings. The defendant's counsel moved to dismiss the complaint, on the grounds that the plaintiff, being a married woman, could not maintain the action, and that it should have been brought by her husband. The motion was denied, and the Justice rendered judgment for the plaintiff for seventy-five dollars damages besides costs. Robert W. Andrews, for appellant. John Anderson, Jr., for respondent. BY THE COURT. HILTON, J. The plaintiff, although a mar- ried woman, could acquire and hold an interest in lands the same as if she were unmarried (see Laws 1849, p. 528). She acquired such an interest by virtue of the letting to her by the defendant of the premises in question, in consideration of pay- NEW YORK MARCH, 1862. 197 Gilhooly v. The New York and Savannah Steam Navigation Company. ing to him the rent therefor in advance, and her possession could not be lawfully disturbed until the expiration of her term. The defendant by entering upon the premises in the manner described by the eyidence, and threatening her with personal violence, committed a malicious trespass, which we think fully warranted the Justice in punishing Mm to the ex- tent of the damages awarded. The action was also properly brought in her own name, with- out giving her husband as a party plaintiff, as it concerned her separate property, and in respect t6 which she was competent to sue or be sued alone. Darby v. Callaghan, 16 N. Y. Rep. 71 ; Code, 114, sub. 1 ; Laws 1860, p. 158, 7 ; Vincent v. JSuhler, Com. Pleas, Gen. T. Aug. 1861.* Judgment affirmed. THOMAS GILHOOLY v. THE NEW YOKK and SAVANNAH STEAM NAVIGATION COMPANY. A voyage from one seaport to another is not completed at the quarantine of the port of destination ; and unless excused by special agreement, or by the health laws preventing intercourse with the city, the vessel is bound to carry a passenger and his baggage to the point agreed on. The defendants engaged to carry the plaintiff and his baggage from Savannah to New York city. The plaintiff being ill, left the vessel at the quarantine of the latter city, leaving his baggage on board the vessel, which reached the city, Held, that in the absence of any offer on defendants' part to de- liver the baggage at the quarantine, they were bound to deliver it at the end of the journey, when called for. The delay of the owner to call for the baggage for several days after its arrival at the point of destination, does not release the carrier from his obligation to deliver it to him on demand. Ante, p. 166. 19S COURT OF COMMON PLEAS. Gilhooly v. The New York and Savannah Steam Navigation Company. The demand must be made, however, within a reasonable time, and what is a reasonable time, is, in all cases, a question of fact, and the finding of the jury on that question will not be disturbed. APPEAL by the defendants from, a judgment of the Marine Court at General Term. The plaintiff took passage in the defendants' steamship at Savannah, Georgia, for the city of New York. The receipt given at the time he purchased his ticket is as follows : k< STEAM SHIP ALABAMA, SAVANNAH, Sept. 13rfA, 1858. Eeceived fifteen dollars for the passage of Thomas Gilhooly, from Savannah to New York, per steamship Alabama, to sail (unless prevented by some unforeseen occurrence), on Satur- day, the 15th day of September, 1858, at 4 o'clock, P. M. J. JB. RIPLEY, for Agents. This receipt must be given up when called for by the clerk. Boxes or trunks not allowed in the cabins or state rooms. Baggage should be marked with the number of the passenger's room. If valuable packages are sent on board, the value must be declared and paid for accordingly. The ship will not be accountable for baggage or goods unless bills of lading ar,e regularly signed. Dogs will be charged five dollars each, and in no case allowed in the cabin or state rooms. GEOKGK MrrcHELL." When the vessel reached the quarantine in the harbor of New York, the plaintiff, being ill, was ordered ashore by the quarantine officers, where he remained for three days. On reaching New York city, he went to the office of the steamer for his trunk, containing his wearing apparel ; the officer in charge said he knew nothing of it. The plaintiff then waited several days until the vessel returned to New York, and made further inquiries. He then brought his action to recover the value of his trunk. Judgment was rendered for the plaintiff, and the defendants appealed to this court. Beebe, Dean <& Donohue, for appellants. Man & Parsons, for respondent. NEW YORK MARCH, 1862. 199 Gilhooly v. The New York and Savannah Steam Navigation Company. . . -TT BY THE COURT. BKADY, J. The plaintiff took passage on board of the defendants' steamed Alabama, from Savannah to New York, and left the former place on the 15th September, 1858. He was sick and put ashore at quarantine when the vessel reached that place. His trunk was taken to New York and never delivered to him. The defendants set up that it was delivered to him at New York, but gave no evidence to estab- lish the truth of that allegation, and proved nothing to relieve themselves from liability. They were bound to deliver to the plaintiff his trunk at the end of the journey. They failed to do so. If the voyage ended at quarantine, then they were bound to deliver the trunk to the plaintiff when put ashore at that point. If they had offered to deliver it there, and the plaintiff had refused to take it, it might be regarded as carried from that place at the risk of the owner, their duty having been performed. There was no evidence, however, showing that the plaintiff knew or was advised that the voyage of the defendants' steamer had ended at quarantine during the season of the year in which he travelled in one of them. The evi- dence, on the contrary, shows that he paid for a passage to the city of New York, and to that place the defendants were bound to take him and his baggage, unless excused by the health laws regulating their intercourse with that city. The omission of the plaintiff to call for his trunk for several days after the steamer arrived, did not release the defendants from their obligation to deliver it to him. The defendants were bound to deliver, and the whole duty rested on them. Hol- lester v. Nowlen, 19 Wend. 234 ; Bowman v. Teal, 23 Wend. 306 ; Cole v. Goodwin, 19 Wend. 251. The arrival of the steamer at its place of destination with the baggage will not discharge the carrier until its delivery to the owner. It must be demanded, however, within a reasonable time. Powell v. Myers, 26 Wend. 591. What is a reason- able time is, in all cases, a question of fact, and the finding on that question in favor of the plaintiff cannot be disturbed. The judgment should be affirmed. 200 COURT OF COMMON PLEAS. Soloman v. Neidig. JOSEPH SOLOMAN and LEOPOLD SOLOMAN v. HENRY NEIDIG and CHARLES SAAB, The plaintiffs sold to N. and S. jointly, a quantity of goods, to be paid for in cash, on delivery, or by the note of 8. at three months, indorsed by N. .The plaintiffs delivered part of the goods, but refused to deliver the resi- due, on the ground that 8. had failed. Plaintiff made no tender of the goods nor demand for either cash or the note, but brought his action for the value of the goods before the expiration of the three months. Held, that a motion for a nonsuit should have been granted. 1st. The contract being an entirety, no recovery could be had until the whole of the goods were delivered. 2. The insolvency of one of the purchasers was no excuse for the plain- tiffs neglect to tender delivery to the other, and make the election either to take the note or cash. '* ' " . . i. ) ! 7.4 "' .*31i;')t APPEAL by defendants from a judgment entered at the Trial Term on the verdict of a jury. The facts fully appear in the opinion of the Court. Xockwood & Overfield, for appellants. Fincke & Lapaugh, for respondents. BY THE COURT. BRADY, J. The defendants purchased from the plaintiffs about three hundred dollars' worth of bird cages. They were to be delivered at the store of the defendants, or one of them in Broadway, and were to be paid for in cash, five per cent, off, or by the note of the defendant Saas, at three months, endorsed by the defendant Neidig. The plaintiffs deliv- ered about two hundred and fifty-eight dollars worth of the goods, but did not deliver the balance " because the defendants had failed one of them and there was an assignee's sale at the store." The note was not demanded of either of the defen- dants, nor was any application made to either of them for the cash before suit brought. It was concluded that the three months' credit to which the defendants would have been en- NEW YOEK MAKCH, 1862. 201 Soloman v. Neidig. titled, had the note been elected, had not expired when the action was commenced. On these facts, the defendants' coun- sel moved to dismiss the complaint, upon the grounds, First. That the three months' credit had not expired, and Secondly, " because the plaintiffs had proved but one contract for the sale and delivery of goods, as an entirety, of which goods a part only had been delivered, although it appeared that one of the defendants was solvent. The Judge denied the motion, and exception was taken. The exception was well taken. The contract was an entirety, and under the well-settled rule in this State, the plaintiffs were not entitled to a recovery until the whole of the goods were delivered. Champlain v. Rowley, 13 Wend. 258 ; 18 Id. 187 ; Mead v. Degolyer, 16 Wend. 632 ; Page v. Ott, 5 Denio, 406. I am inclined to think that if the plaintiffs had dealt with the defendants as copartners, although they were not in fact, that the failure of Saas would have excused a further per- formance of the contract on their part. The plaintiffs had the right to require cash, and they would, under the circum- stances, have been justified in assuming that it was not in the power of the defendants, a failure having occurred, to pay cash for the goods when the balance was delivered. The plaintiff did not deal with them as copartners, however. The elder Solo- man knew that the defendants had done business as copartners five years before the sale, and stated that the plaintiffs " had not sold them any goods since the dissolution " of their part- nership. And it further appears that he considered the propo- sition that Saas would give his note, and Neidig endorse it, in payment for the goods which form the object of this contro- versy. The sale was made to the defendants jointly, it is true, but the failure of one of them, the other being solvent, did not excuse the plaintiff's from delivering the whole of the mer- chandise, and making the election either to take the note or cash. This was not done, nor was there any offer to deJiver to either of the defendants. It is true also, that when the balance of the purchase was taken to the store in Broadway, the younger Soloman found an auction sale going on, and saw Neidig, but he did not communicate to him his readiness to de- liver the goods or make any demand for note or money. Nor 202 COUKT OF COMMON PLEAS. Morris v. The Third Avenue Railroad Company. did he do it at any subsequent time. If Neidig, a solvent pur- chaser, were to be held liable, it could only be based upon a compliance with the rules of law establishing such liability, which were not observed. A tender to him would have been sufficient to charge him and to have completed the obligations of the plaintiffs to both defendants. Until the plaintiffs per- formed their contract, they were not in a situation to demand either note or money. I think the evidence discloses circum- stances which render it desirable that this judgment should not be disturbed, but I cannot discover any rule of law by which it can be upheld. The judgment must be reversed. ADA M. MORRIS v. THE THIRD ATENTJE KAILEOAD COMPANY. Where carriers of passengers, by a general regulation, make it the dnty of their agents to take charge of property inadvertently left in their cars, and provide at their depot a place for its safe keeping, where the owner may apply for it, it must be deemed a part of their business to take charge of such articles and keep them for the passenger. And although they do not engage for the carriage of luggage, and do not incur respecting it the extraordinary liability of common carriers, yet the existence of the regulation shows that they undertake, as incidental to their business, to take charge of it, if left in their care, when the fact is brought to their knowledge ; and the specific compensation which they receive for the carriage of tho passenger is sufficient to constitute them bailees for hire, while the property remains in their custody. The plaintiff left a satchel in defendants' car, which the conductor took charge of, and upon the return-trip placed it in the care of the receiver of the road, by whom it was delivered to a person who had no right or claim to it, Held, that the defendants were liable as for a conversion. NEW YORKMAY, 1862. 203 Morris v. The Third Avenue Railroad Company. Where property is not put in a bailee's charge by the owner, but comes into his possession through the owner's neglect, and where he may not know to whom it belongs, or by whom it was left, he should not be held responsible for delivering it to the wrong person, if he has exercised all the care and vigilance that could reasonably be expected of him under the circum- stances. The question of care and vigilance is one of fact for the tribunal which tries the case, and its finding will not ordinarily be disturbed on appeal. APPEAL by the defendant from a judgment of the Marine Court at General Term. The plaintiff brought action to recover the value of a satchel and contents " casually lost by her " in one of the cars of the defendants. The conductor of the car took care of the article, and on reaching the end of his route, left it with another em- ployee of the defendants, for safe keeping, in a room provided for that purpose. . i The latter employee was, shortly after the deposit, applied to for the satchel, by a person who described it, stating it to have been lost by being accidentally left in a car, and claim- ing it as belonging to her mistress. The receiver gave the pro- perty to the applicant. Judgment was rendered for the plaintiff, which being affirmed by the General Term, the defendants appealed to this Court. Robert B. Potter , for appellants. I. The defendants are not carriers of Inggage. The defen- dants are a peculiar corporation in their objects ; being simple passenger earners a public conveyance in a large city, to aid foot passengers in going great distances, and there is no proof that the defendants are carriers of luggage. T,hey are not in fact. (1.) The liability of other passenger carriers for lug- gage, such as hackney coachmen, stage coach proprietors, and the like, does not arise upon the occupation itself, but it haa grown up into recognition because the public has become accustomed with the owners' assent to carry their baggage with them in such vehicles. Defendants' cars are not run for the travelling public at large, but for citizens in their daily local 204 COURT OF COMMON PLEAS.' Morris v. The Third Avenue Railroad Company. business. The fare is fixed and arbitrary, and does not include the carrying of luggage, which, if carried occasionally, is inva- riably charged for. (2.) The defendants performed their con- tract with the plaintiff, and became dismissed of all obliga- tion when they discharged her at her own request at Grand street, in safety. She left the bag. All her action was volun- tary. She never delivered it to the defendants, and it was never in their custody, with her assent or by her action. This is necessary to create liability. Angell on Com. Car. 113; Tower v. U. <& S. R. R. Co., 7 Hill, 47. II. The defendants' negligence did not consist in finding or in the taking to the Receiver, but in the delivery to the woman. The action is trover, and the gist is the conversion. There was no conversion until the delivery to the woman ; the question simply is whether the delivery, under the circumstances, consti- tutes negligence. The error lay in the original carelessness of the owner. The act was the act of the conductor and receiver. It is not shown that the railroad assumed to take or to return the property. The conversion, if any, was by those two parties. Hiblard v. N. Y. & E. R. R. Co., 15 N. Y. R. 455. E. L. Fancher, for respondent. As to the case on the merits, it is identical in all principles with that of PoweU v. Myers, 26 Wend. 591 ; where the doctrine is established, that " common carriers of passengers and baggage are liable for the latter until its delivery to the owner ; its delivery on a forged order will not discharge them ;" and the circumstance that no compensation is paid for the trans- portation of the baggage, is not material ; the passenger fare includes it. See Wend. 594. And the defendants are also liable in trover. Packard v. Getman, 4 Wend. 613. BY THE COURT. DALY, F. J. The evidence sufficiently shows that it formed a part of the business of the defendants to take charge of articles left inadvertently in the cars by passen- gers ; and that by their custom all articles so found were taken by the conductors to the receiver's office, in Sixty-fifth street, and placed in the care of that officer. This was an arrange- ment for the benefit of passengers, and though the defendants NEW YOKK MAY, 1862. 205 Morris v. The Third Avenue Railroad Company. \ may have received no compensation for it, other than that which is included in the fare charged for the conveyance of the passenger, they must, in taking charge of property so left, be looked upon in the light of bailees for hire, who are bound to the exercise of ordinary care and diligence. Powell v. Myers, 26 Wend. 591 ; Town v. Utlca- & Schenectady R. E. Co., 7 Hill, 47 ; Angel on Carriers, 75, 131, 112, 302 ; Edwards on Bailments, 35 36. This is not a gratuitous bailment. It is a matter of ordinary convenience for passengers to carry with them light and port- able articles, and necessarily of very common occurrence that they should occasionally leave such articles behind them on quitting the cars. That the defendants make it the duty of their conductors to take charge of property so left, and that they provide a place for its safe keeping, where the owner may apply for it, is an arrangement which materially enhances the security of this mode of travel, and where it is adopted, as in this case, by a general regulation, it must be deemed as much a part of the railroad company's business as the carriage of the pas- senger. They do not engage for the carriage of property of the kind, and do not incur respecting it the extraordinary liability which the law imposes upon common carriers, but the existence of the regulation they have adopted, shows that they undertake, as incidental to their business, to take charge of it, if left in the cars, when the fact is brought to their knowledge, and the specific compensation which they receive for the car- riage of the passenger, is sufficient to constitute them bailees for hire while the property remains in their custody. The plaintiff in the case left her satchel in the car, contain- ing articles valued at one hundred dollars. The conductor's attention being called to the fact, he took charge of it, and upon the return trip placed it in the care of the receiver, by whom it was delivered to a person who had no right or claim to it. If a bailee for hire deliver a package by mistake to the wrong person, it is a conversion, because it is giving the dominion over the goods to another, (Youle v. Harbattle, Peake N. P. C. 49; Wyld v. Pickfard, 8 Mees. & W. 461 ; Packard v. Getman, 4 WendL 613 ;) but in a case like this, where the property is not put in the bailee's charge by the 206 COURT OF COMMON PLEAS. Morris v. The Third Avenue Railroad Company. owner, where it comes into his possession through the owner's neglect, and where he may not know to whom it belongs or by whom it was left, he should not be held responsible for deliver- ing it to a wrong person, if he has exercised all the care and vigilance that could reasonably be expected of him under the circumstances. The receiver testified that about fifteen minutes after the satchel was placed in his charge, a respectable looking Ger- man woman came into the office and claimed it, saying that she had been sent there by her mistress. She said the handle was a string, a brown ribbon, and that the satchel was a brown leather one ; that he asked her as to its contents, and that she said that there was a brush and comb, and other articles, the comb lying on the top, two or three bottles, and articles be- longing to a lady, and that there was clothing. He stated that the brush and bottles corresponded with her description, and that he saw what appeared to be ladies' clothing in the bag. That when he produced it, she said yes, bowed, and extended her hand for it ; that he meant to be careful, and that her man- ner made him think that she told the truth. In cases of this nature it is generally left to a jury to say whether the circumstances were such as to justify the bailee in parting with the property. The facts relied upon to show the existence or the want of diligence, may, even where there is no conflict, be regarded differently by different persons ; they maybe influenced in their bearing upon each other by the con- sideration of a variety of circumstances, and when the tribunal, therefore, before whom the case was laid in detail, and before whom the witnesses were examined, conies to the conclusion that sufficient care was not exercised, appellate courts, except in a very clear case, should not interfere. There are, in many instances, a discretion and judgment to be exercised as to the bearing and relation of facts, which it is more appropriate to leave to the tribunal that tried the cause, than to the one that sits in review, and impressions as to the value of testimony and the consideration that ought to be given to particular facts, de- rived from the manner of witnesses and other surrounding cir- cumstances occurring at the trial, that have, and should have weight, of which the appellate tribunal have necessarily no knowledge. Questions, therefore, of negligence, the exercise NEW YORK MAY, 1862. 20T Morris v. The Third Avenue Railroad Company. or the want of diligence, overruling, as they usually do, the consideration of many circumstances, should be left to the tribu- nal that tried the cause, except where the error is very palpa- ble. Oldfield v. N. T. & Harlem R. R., 3 E. D. Smith, 106 ; Curtis v. Rochester, &c., Railroad Co., 20 Barb. 282 ; Stover v. G-ower, 6 Shep. [Me.] R. 174 ; Story v. Bailments, 11, 12, 13, 14 ; Angel on Carriers, 27, 51. The Justice has found in the case that there was a want of proper care on the part of the defendants' agent, and it pre- sents, in my judgment, one of the class of cases in which hia conclusion should not be interfered with. Property left like this, in a car in which there are other passengers, is liable to just such attempts on the part of dishonest persons, to 'obtain it, as occurred in this case. The defendants' agent had it in his power, before the satchel was shown, to require such proofs of its identity as could be furnished only by a person tho- roughly acquainted with its contents. The outward descrip- tion of it might be given by any one who had seen it in the cars, but a particular account of what it contained could be supplied only by one who knew what was in it. It would ap- pear not to have been locked, as the receiver looked into it, and this was an additional reason for exercising greater cau- tion, and requiring such a statement of its contents as would reasonably justify the conclusion, if given, that the person ap- plying was entitled to it. The woman is declared to have said that there was a brush and comb, and the receiver, when examined upon the direct, stated that the brush and bottles corresponded with her description, but when cross-examined, he said that he did not see a lady's hair brush ; that the only brush that he saw was a tooth brush. The Justice assuming that he believed the statement, may have been of the opinion that the woman meant, when she spoke of a brush and comb, to convey, from the union of the two, that it was a hair brush, and as the only brush that the receiver saw was a tooth brush, that that should have awakened his suspicion. But there was also evidence on the part of the plaintiff that may have in- duced the Justice to discredit the whole of that part of the re- ceiver's statement, in which he testified that the woman identified articles contained in the satchel. He said that the brush and bottles corresponded with her description, 208 COUKT OF COMMON PLEAS. Morris v. The Third Avenue Railroad Company. having previously stated that she mentioned two or three bottles. Now, the plaintiff testified as to the contents of the satchel. She swore that she remembered what was in it, and she pro- duced a copy of a list of the articles which it contained, made out by herself at the time of the loss, and in this list there was neither brush, bottles, nor tooth brush. These articles the woman is said to have specifically identified, while, according to the plaintiff's testimony, the satchel contained no articles of the kind. There was, then, a serious conflict, and if the Jus- tice believed the plaintiff's enumeration of the contents to be correct, it was calculated to throw discredit upon the receiver's statement. This officer says that the woman's man- ner made him think that she told the truth, and the Justice may have thought that he relied rather upon that than upon what was within his power such a description of what was in the satchel as could not in all probability have been given by the dishonest woman who obtained it. It could easily have been examined, and as it was according to the plaintiff's testi- mony, a " little satchel," and contained a number of valuable articles, such as a gold chain, lava and pearl ear-rings, a jew- elled bracelet, expensive embroidered handkerchiefs, pearl ornaments, a lace collar, &c., it would have given very little trouble to have ascertained what was in it, and that would have tested at once whether the woman knew what it con- tained. If the receiver delivered the satchel to her without any preliminary inquiry as to its contents, it was certainly a want of proper care. The Justice may have been of that opinion, and we cannot say, npon the evidence, that he erred in arriving at such a conclusion. The existence or absence of* negligence was upon the evidence eminently a question for him alone. Several objections were made to the introduction of testi- mony, but one of which the defendant now relies on as to the court's allowing the plaintiff to show what the starter Baid to her when she went to inquire after her satchel. It is unnecessary to discuss whether this was admissible or not. It was proved by the defendants' witness that the receiver had the bag in his custody, and the declarations or statements of the starter as to where he had s^en it and where it had been NEW YORK MAY, 1862. 209 Hunt v. Singer. taken to, were wholly im material. The only questions in the case was whether the receiver acted negligently in giving it up, and its value, and upon these questions this testimony could have no bearing. The judgment should be affirmed. POLLY HUNT and GEORGE W. HUNT, Admr. and AdmVx. of WALTER HUNT, deceased, v. ISAAC SINGER and EDWARD CLARK. Where a party desires to rescind or abandon a contract because of some alleged breach, the law requires him to act with due promptness in making his election, and he will not, as a general rule, be permitted to do so, when at the time of the recision, both parties cannot be placed in the identical situa- tion, nor can stand upon the same terms existing at the time the contract was made. Thus, where the defendants, who sought to avoid a contract on the ground of fraud, knew of the existence of the fact of which the fraud was alleged, and notwithstanding such knowledge, proceeded to complete their part of the contract, by which they reaped substantial advantages, e. g., in preventing opposition to the extension of a patent right, Held, that they would not be allowed to rescind or annul the contract on the ground of the alleged fraud. APPEAL by the defendants from a judgment of the Marine Court at General Term. This action is brought by Polly Hunt and George W. Hunt, administratrix and administrator of Walter Hunt, deceased, against Isaac M. Singer and Edward Clark, to recover the sum of one hundred dollars, the amount of an instalment alleged to have become due on the first day of September, 1860, under and by virtue of a contract made on the 3d day of May, 1858, between Walter Hunt, since deceased, and the defendants. 210 COURT OF COMMOX PLEAS. Hunt v. Singer. By this contract it was agreed that the defendants should have the exclusive direction and control of the intestate'e invention of a sewing machine, with power to apply for a patent, &c., and in consideration thereof, the defendants agreed to pay to the intestate the sum of one hundred dollars a month for every month between May 10, 1858, and September 10, 1860. These instalments were regularly paid, with the excep- tion of the last one due, for which this action was brought. The defence set up, and endeavored to be proved tvpon trial was, that Hunt had, prior to his agreement with defendants, entered into a contract about his sewing machines with John "W. Martin, in April, 1857, more than a year previous, which, under "the third article of his agreement with defendants, barred his claims on them. The third article of the agreement was as follows : " That the said party of the first part hereby covenants and agrees that he has not executed any paper, or made any con- tract which will or may impair or injuriously affect the right of the said parties of the second part to completely direct all the matters contained in the last preceding articles, and the stipulations hereinafter made on the part of the parties of the second part in favor of the party of the first part are upon that condition." Martin's contract was never carried into practical operation, and had been abandoned, and it was proved that defendants knew of the Martin contract, and considered it valueless, and with full knowledge of it paid all the instalments which fell due before the renewal of Howe's patent.- Judgment was rendered for the plaintiffs, which was affirmed by the General Term of the Marine Court. The defendants appealed to this Court. J. Van Ness Zyle, for appellants. C. W. Sandford, for respondents. BY THE COURT. HILTON, J. In the contract of Walter Hunt, deceased, with the defendants, he agreed that they NEW YORK MAY, 1862. 211 Hunt v. Singer. should have the exclusive direction and control of his un- patented discoveries or inventions respecting sewing machines, and power to make application for a patent, or to apply to Congress for a grant of special privileges, or for some specific compensation for the public benefits conferred by the inven- tions ; and he covenanted that he had not executed any paper, or made any contract which would or might impair, or inju- riously affect the right of the defendants to completely direct in respect to such applications. In consideration of this agree- ment and covenant, the defendants agreed to make certain monthly payments of one hundred dollars each. The prior agreement made with Martin was evidently in contemplation of a partnership, by which Martin agreed to ad- vance an amount of money for the purpose of manufacturing several articles invented by Hunt, including the sewing ma- chine, and open a place of business in which the inventions might be brought to the notice of the public for purposes of Bale, &c. But if Martin failed to furnish the means agreed on, Hunt was entitled to a relinquishment of all the interests trans- ferred by the agrement to Martin, and which comprised the claim to the invention of sewing machines, upon paying the money actually advanced by Martin under the contract. . The evidence at the trial shows that this arrangement was never carried into practical operation between Hunt and Martin, although it seems some small advances were made by Martin for the purpose. The agreement thus became in effect a mortgage upon the sewing machine invention, with others, to the extent of the moneys so advanced, and as such it cannot be said to fall within the class of contracts which Hunt cove- nanted with the defendants that he had not executed, being ' O but a lien upon the interest of Hunt, which would not affect or impair the right of the defendants to " completely direct in respect " to the applications, which, as appears by their con- tract, they desired to control. This constitutes a sufficient ground for affirming the judg- ment, but another may be stated 'equally fatal in its result. When a party desires to rescind or abandon a contract because of some alleged breach, the law requires that he shall act with all due promptness in making his election, nor will he, as a general rule, subject however to a few exceptions, be per- 212 COURT OF COMMON PLEAS. Hunt v. Singer. mitted to do so, when, at, the time of the recision, both parties cannot be placed in the identical situation which they occupied, and cannot stand upon the same terms as those which existed at the time the contract was made ; and the most obvious illustration of this rule is, where the party desiring to rescind hafe received a partial benefit from the contract. Lawlor v. Seldon, 11 Howard, P. R. 526 ; Lawrence v. Dale, 3 Johns. Oh. 23 ; S. C/17 Johns. 437 ; Chitty on Cont. 5 Am. ed. 742. Here, it was shown that the defendants knew of the Martin contract prior to December, 1859, and regarded it as worthless, that they were unwilling, not only to advance a small sum to procure its cancellation, but in addition, continued to pay the monthly instalment to Hunt for many months thereafter, and until Howe procured an extension of his patent, when the in- terests derived under their agreement with Hunt became posi- tively valueless to any one. Having, as I think it may fairly be inferred from the evi- dence, by means of their controlling Hunt's invention, made a satisfactory arrangement with Howe and silenced any oppo. sition. to his claim for an extension on the part of those who might represent Hunt's claim to having been the original in- ventor of the sewing machine, they now desire to rescind and annul their contract when it is impossible to place the plaintiffs in the condition they would have been prior to the extension of Howe's patent having been procured ; and after the defen- dants have acquired and realized, in all probability, all the be- nefit they ever expected to gain by their contract with Hunt. A plainer illustration of the propriety of the rule stated could not be found. t Judgment affirmed. NEW YOKE MAY, 1862. . 213 Knox v. Nutt. CHARLES KNOX v. FURMAN T. NUTT. The defendant, the clerk of the plaintiff, who was a hatter, told the latter that if any of his personal friends bought hats on credit, he would pay for them if they did not. The defendant sold hats to his friends which were charged to them on plaintiff's books. Held, that the promise of the defendant was collateral, and within the statute of frauds, and therefore void. APPEAL by the plaintiff from a judgment of dismissal grant- ed by the First District Court, on the ground that the promise on which the action was brought was within the statute of frauds. The facts sufficiently appear from the opinion of the Court. George W. Stevens, for appellant. E. W. Dodge, for respondent. BY THE COURT. BRADY, J. The plaintiff is a hatter, and employed the defendant as clerk. The defendant told the plaintiff that if any of his personal friends bought hats on credit he would be responsible that he would pay if they did not. The defendant sold hats to his friends, which were charge \ to them, and they were never discharged from* their obligations. The Justice held the engagement or promise of the defendant collateral, and within the statute of frauds. The decision was correct. The persons to whom it is alleged the defendant sold hats were primarily liable to the defendant. He charged the hats to them. The whole credit was not given to the defendant. The whole responsibility did not rest upon him, and the promise was therefore collateral and void. JLeonard v. Vredenbergh, 8 J. R. 29, and Cases collected iu a note to that case ; Brown v. Bradahaio, 1 Duer, 199j Car- 214 . COUET OF COMMON PLEAS. Rappelyea v. Russell. mile v. Crane, 5 Hill 483 ; Newcomb v. Clark, 1 Denio 226 ; Brady v. Sackrider, 1 Sandf. 514 ; Pennel v. Pentz, 4 E. D. Smith 639 ; Dixon v. Frazel, 1 E. D. Smith 32 : Brewst&r v. Silence, 4 Selden 20T. In Newcomb v. Clark, $upra, the defendant signed a paper in these words : " Mr. Henry Peters I hereby agree to pay to you the rent of the part of the house hired of you by Mr. John "Ward, in case he fails." The promise was held void, though in writing, the consideration not being expressed. The case in hand cannot be distinguished in principle from that case. The judgment should be affirmed. JAMES C. RAPPELYEA v. STEPHEN P. RUSSELL. The rule that an executor, if he have sufficient assets, is liable to a third per- son who, as an act of duty or necessity, has provided for the interment of the deceased, is the same in the case of an administrator ; and a person who de- frays the necessary funeral expenses of an intestate, though before letters of administration are granted, is entitled to be reimbursed out of the assets which came into the hands of the administrator. An administrator, having assets in his hands, who refuses or neglects to pay the funeral expenses of the intestate, being requested to do so, is individu- ally liable at the suit of the person who has been at the expense of the funeral. The plaintiff, an undertaker, superintended the burial of an intestate having no friends or relations in the city. The defendant, as Public Administrator, afterwards took out letters, and having in his hands sufficient assets, refused to pay the plaintiff's bill, Held, that he was individually liable therefor. APPEAL by the plaintiff from a judgment of the Marine Court, at General Term, for the defendant, on a demurrer to the complaint. The complaint alleged that plaintiff was a " general furnish- NEW YORK JUNE, 1862. 215 Rappelyea v. Russell. ing nndertaker,",doing business in the city of New York, and that the defendant was the Public Administrator in and for the said city of New York. That on or about the 9th day of June, 1860, one Anna Winchester, who had been, previous to that date, residing in said cit} r , died intestate, and without having any friends and relations in said city. That thereupon the plaintiff, in his capacity as such undertaker, superintended the burial of the said Anna Winchester, and did and per- formed certain work, labor and services, furnished certain materials, and paid, laid out, and expended certain" moneys, * in effecting such burial, which said work, labor, and services so rendered, said materials so furnished, and moneys so paid, laid out, and expended, were of the value, reasonably worth, and amounted in the aggregate to the sum of one hundred and eighty-one dollars and ten cents. That said charge was rea- sonable and proper, and that the said funeral was, in every respect, suitable to the degree and circumstances in life of the said Anna Winchester. That on the 18th day of July, 1860, letters of administration were granted and issued to the defen- dant as such public administrator, by the Surrogate of the city and county of Ne\v York. That the defendant has in his hands, as administrator of the said Anna Winchester, assets to the amount of over six hundred dollars, in cash, which he has received and taken possession of as such administrator, and which is part of the estate of the said Anna Winchester, de- ceased. That while the said defendant had in his hands such assets, the plaintiff demanded payment from the defen- dant, &c. The defendant demurred to the complaint, as not stating facts sufficient to constitute a cause of action. The demurrer was allowed, and the judgment being affirmed at the General Term of the Marine Court, the plaintiff appealed to this Court. George 0. Barrett (Barrett, Brinsmade & Barrett), for ap- pellant. I. The Public Administrator, on taking out letters, became invested with all the rights, powers, and liabilities of any other administrator ; and may, in like manner, sue and be sued ; and is 216 COUIiT OF COMMON PLEAS. Rappelyea v. RusselL to be treated by creditors precisely the same as any other ad- ministrator. 3 Rev. Stat. 5th ed. 212. II. An executor or administrator, with assets, is liable upon an implied contract to pay the funeral expenses of his testator, suitable to his degree, although he does not give orders for it. Williams on Executors, vol. 2, 1623, 1624 ; Rogers v. Price, 3 Young & Jerv. 28 ; Tugwell v. Hayman, 3 Camp. 298 ; Corner v. Shew, 3 Meeson & Welsby, 350. III. And the executor or administrator is liable on such a con- tract personally, and not in his representative character. Day- ton on Surrogates, ed. of 1855, 286 ; Brice v. Wilson, 3 Neville & Manning, 512 ; Corner v. Shew, Hayter v. Moat, 2 Meeson & Welsby, 56. (1.) In Corner v. Shew, above cited, it was held, that the implied promise is on the part of the executor, personally, and not in his representative capacity. And the Judge who delivered the opinion of the Court, then adds : " We are ALL of that opinion." (2.) It would seem, even, that the naming the defendant executor in the declaration is mere surplusage, and that he is liable de bonis propriis, if liable at all. (3.) The principle is laid down in the various cases to be, that as an express contract by the executor would certainly have bound him personally, the implied promise cannot place him in a different condition than if he made an express contract to the same effect. (4.) The rule is the same in the case of an administrator. Hayter v. Moat, 2 Meeson & Welsby, 56. Charles A. May, for respondent. I. An administrator is not individually or personally liable for funeral expenses of deceased where he has neither given nor adopted directions for the burial of the deceased. II. Administrators have no power to act in relation to the estates of the deceased persons until administration is granted, when they become vested with the property of deceased. III. It does not appear on the face of the complaint that administration was ever granted to the defendant on the estate of Anna Winchester, deceased. The place and time ad- ministration was granted should be set forth. JRightmeyer v. Raymond, 12 Wend. 51. NEW YORK JUNE, 1862. 217 Rappelyea v. Russell. IV. There are no facts stated in the complaint from which a contract can be implied between defendant and plaintiff for defendant to pay the claim sought to be recovered. BY THE COURT. DALY, F. J. It is well settled that an executor, if he have sufficient assets, is liable upon^an implied promise to a third person, who, as an act of duty or necessity, has provided for the interment of the deceased, if the funeral was conducted in a manner suitable to the testator's rank in life, and the charge is fair and reasonable. Tugwell v. Hay- man, 3 Camp. 298 ; Rogers v. Price, 3 Young & J. 28 ; Corner v. Shew, 3 Mee. &. Wells. 350 ; Brice v. Wilson, 8 A. & E. 348, Note ; Eapgood v. Houghton, 10 Pick, 154. 1 do not understand that the law, as established by these cases, is founded upon anything peculiar to an executor as contra-distinguished from an administrator, but that it rests upon reasons which are as applicable in the case of the one as in that of the oth'er. The burial of the dead is an act of public necessity. It is an imperative obligation thus strongly put by LORD DENMAN, in Key v. Stewart, 12 A. &. E. 773 : " Every person dying in this country, and not within certain exclusions laid down by the ecclesiastical law, has a right to Christian burial, and that implies the right to be carried from the place where his body lies to the parish cemetery. . . The common law casts upon some one the duty of carrying to the grave, de- cently covered, the dead body of any person dying in such a state of indigence as to leave no funds for that purpose. . . The individual under whose roof a poor person dies is bound to carry the body decently covered to the place of burial ; he cannot keep him unburied, nor do anything which prevents Christian burial ; he cannot, therefore, cast him out, so as to expose the body to violation or to offend the feelings or en- danger the health of the living ; and for the same reason he cannot carry him uncovered to the grave." Unless a man has left specific directions as to the mode of his interment, it may be assumed to be in consonance with his wishes, as it is conformable to the habits of society, that he should be buried in the manner which custom and usage have established. Funeral expenses, therefore, may be defrayed by an executor before probate (Toller's Law of Executors, 24; 218 COURT OF COMMON PLEAS. Rappelyea v. Russell. 2 Rev. Stat. 71, 16), or by a stranger, if the necessity exists for his interference (Office and Duties of Executors, 174 ; Swin- burne, 6 22 u. ; Rogers v. Price), 3 Young & J. and this ex- pense is a charge upon the estate of the deceased, which take? priority over every other. Parker v. Lewis, 2 Dev. 21 ; White v. Stephens, R. M. Char! ton R. 56. If a person defrays the necessary funeral expenses of an in- testate before letters of administration are granted, he is en- titled to be reimbursed out of the assets which coiae into the hands of the administrator. " Funeral expenses," says Chief Justice TAYLOR, in Gregory v. Hooker, Hawks R. 394, are not a debt, but properly a charge upon the estate, " and if an administrator having assets in his hands refuses or neglects to pay it after being requested to do so, he is individually liable at the suit of the person who has been at the expense of the funeral. In Arbat v. Churchland, cited in Rogers v. Price, 3 Young & J., at page 32, an undertaker furnished the funeral of the intestate at the request of the surgeon who attended him, and administration being afterwards granted upon his estate, the undertaker arrested the administrator for the amount of his bill, but subsequently abandoned the suit. The administrator brought an action for false imprisonment which was not sus- tained, BEST, C. J., being of opinion that the original action was well brought, and that the undertaker might have re- covered. In Gregory v. Hooker, Hawks, 390 (N. Carolina), the question of the liability of an administrator for funeral ex- penses incurred without his knowledge was much discussed, and it was held that a person who had furnished certain articles for the funeral of the deceased, before administration granted, could not maintain an action against the adminis- trator for their value, where no notice of the claim had been given before suit brought. But afterwards in the same State it was decided, in Parker v.Lewis, 2 Dev. 21, that an action for funeral expenses might be maintained against an administrator. That they were a charge upon the assets independently of any promise by the adminis- trator, and if suitable to the estate and degree of the deceased, were to be preferred to any other claim. NEW YORK NOVEMBER, 1S62. 219 Smith v. The Mayor, &c. The only case relating to funeral expenses, in this State, appears to be Myer v. Cole, 12 Johns. 349 ; but all that was held in that case was that a count upon a promise by an execu- tor to pay the costs and charges of the testator's funeral could not be joined with a count for work and labor and goods sold to the testator in his lifetime. In the present case the plaintiff has averred that in the capacity of undertaker he superintended the burial of Anna Winchester, expending money and furnishing materials for her funeral ; that she died intestate, having no friends or relations in this city ; that the defendant, afterwards, as public adminis- trator, took out letters of administration ; that he has assets in his hands more than sufficient to discharge the plaintiff's claim, and that having such assets in his hands, he was requested to pay the plaintiffs bill, and refused to do so. This is sufficient to maintain the action. The demurrer to the complaint was not well taken, and the judgment of the Court below waa erroneous. Judgment reversed. JOSEPH B. SMITH v. The MAYOR and COMMONALTY of the CITY of NEW YOKK. One who is appointed to a municipal office, but who is unlawfully excluded therefrom by a third person, who alone performs the duties of the office, cannot recover the compensation allowed by law for such services, without at least showing that he has taken every proper legal measure to obtain pos- session of the office. . This was an appeal from a judgment entered upon the report of a referee. It appeared that one John J. Roof was appointed by Charles Devlin, then Street Commissioner, a Deputy Collector of As- sessmento. That during the suit between one Conover and COUKT OF COMMON PLEAS. Srhith v. The Mayor, &c. Devlin, relative to the street commissionership, he was re- strained from exercising his duties as Deputy Collector by an injunction, and that during that time he was, by the direction of Mr. Devlin, present at the Collector's office, ready tp per- form any services required of him, but that the collections were actually made by one Libby. It also appeared that he had taken no legal proceedings to obtain the office. Proof was given that Roof could have obtained other paying employment, and what amount would have come to him as compensation had he been permitted to act as deputy collect- or ; also of the assignment of the claim to the plaintiff. The complaint alleged that the defendants wholly neglected and refused to allow him to enter upon and discharge the du- ties of his office, or to furnish him employment in his office, and claimed that the defendants were indebted to him for two thousand five hundred dollars, which he would have received in such office, and damages. The referee gave judgment for him for - the amount of the per centage he would have received on the collections made. Judgment was entered accordingly, and the defendants ap- pealed. Greene C. Bronson, for the appellants. I. The claim of a public officer for compensation is not founded upon contract. He is entitled to compensation for services rendered, if provision is made by law for such com- pensation ; but not otherwise. The right to compensation grows out of the existence of the appropriation, and the rendi- tion of the services which that appropriation is intended to com- pensate, and not out of any contract between the government and the officer that the services shall be rendered by him. The obligation to render the services arises from the relation of the officer to government and his oath of office, and does not rest upon contract. Conner v. the Mayor, &c., of New York, 1 Seld., 296 ; Commonwealth v. Bacon, 6 Serg. and R, 322. (1.) Public offices in this State are not incorporeal heredita- ments, nor have they the character or qualities of grants. NEW YORK JUNE, 1862. 221 Smith v. The Mayor, &c. They are created for the benefit of the public and not for the benefit of the incumbent. (2.) The public officer occupies a position analogous to that of trustee. No action will lie against government, whether it be the State government or a municipal corporation, upon the ground of a breach of con- tract. As there is no contract, there can be no breach. (3.) The plaintiff having brought his action upon the ground of a breach of contract, must fail. II. The plaintiff has mistaken both his rights and his remedy. His assignor, Mr, Roof, if entitled to the office claimed, should have instituted his poceedings in the nature of a quo warranto against Mr, Libby, who was performing the duties of the office, and, after judgment of ouster, have recovered damages against the usurper. 2 Rev. Stat. 582, g34. HE. Plaintiff's assignor was prevented from entering upon the duties of his office, not by the defendants, but by an irij unc- tion order of the Supreme Court. The defendants were not parties plaintiff to that suit, and are not responsible for the re- sult. The remedy (if any) was upon the undertaking given at the time the injunction issued. IY. There is no proof that the defendants in any manner interposed any obstacle to the performance of the duties of the office by Mr. Rotof. The Street Commissioner appointed him. Mr. Taylor, the Collector, acknowledged him to have been legally appointed. The duties of the office are pointed out by the ordinances. The plaintiff did not perform the duties, and he is not entitled to ask the defendants to pay him for not doing .his duty. Woodbury & Churchill, for respondent. I. John J. Roof, respondent's assignor, was duly appointed to the office of Deputy Collector of Assessments. Chap. 444, Laws of 1857 (amended charter of the city of New York), 21 and 23 ; Ordinance to reorganize the Street department, approved June 26th, 1857, chap, xi., 14. II. He duly complied with the provisions of the acts of the Legislature, and the city Ordinances, relative to said office, 222 COURT OF COMMON PLEAS. V Smith v. The Mayor, &c. and became entitled to hold, and did hold it. Amended char- ter of 1857, 30 and 39 ; Ordinance to reorganize the Street Department, chap, xi., 85. III. The appellants neglected and refused to all6w said Roof to enter upon and discharge the duties of said office, or to furnish him any emplo} r ment therein. IV. Roof was not able to accept any other employment while he held the office of Deputy Collector of Assessments, by reason of tne directions of his superiors, the agents of the appellants, whose orders he was obliged to obey. V. The case does not show that Roof could have taken any means to have enabled him to perform the duties of his office. It does not appear therein that any individual held the place which belonged to him. VI. The fact that Roof was under an injunction, obtained, as possibly the appellants will assert, by third parties, against whom a remedy may be had under the injunction bond, is no defence in this action. (1.) The refusal fef the appellants to give him employment took place immediately after he was appointed, while the injunction was obtained afterward. The appellants were in the wrong by their own option, and they do not show that they adopted or desired to adopt any other line of action. (2.) The evidence as to the injunction is too indefinite to constitute a defence. (3.) Had it not been for the appellants, Roof might have sought and ob- tained other employment while the injunction was pending, and it would have been his duty so to have done, but he was directed by the agent of, the appellants, whose orders he was obliged to obey, to report himself daily for duty. BY THE COURT. BRADY J. John J. Roof, the plaintiff's assignor, was appointed on the 1st day of July, 1857, a deputy collector of assessments in the bureau of the Collector of Assessments, which formed a part of the street department of the defendants. The appointment was made by Charles Dev- lin, the appointee of the defendants to the office of Street Commissioner. The right of Devlin to the office was contested by another claimant, but ultimately declared in his favor. NEW YORK JUNE, 1862. 223 Smith v. The Mayor, &c. Roof's appointment was therefore regular, and he duly quali- fied himself to enter upon his duties. He never did, however, perform any of those duties, and, it would seem, because he was restrained by an injunction order issued out of the Supreme Court of this State. ,It does not appear by the case at whose instance the injunction was obtained, but it is not pre- tendted that the defendants commenced any proceedings against either Devlin or Roof. Devlin, as before stated, was in fact their appointee, and MB right to the office was not ques- tioned by them. It appears, however, from the case, that Roof, when qualified thereto, tendered his services to the Col- lector of Assessments, Mr. Taylor, with instructions from Mr. Devlin. That he was then told by Mr. Taylor that whatever moneys were collected would be collected and deposited by Mr. Libby, who was retained, and that Mr. Libby performed the services which Roofs appointment imposed upon him. It also appears that Roof did not commence any proceedings to oust Libby, or to get possession of his office held by Libby, de facto. He seems to have been controlled by the injunction order, and influenced by the statement of Mr. Taylor when he tendered his services. He attended each day at the proper department, it is true, but remained inactive, so far as his duties were concerned. We are not advised as to the extent of the prohibition contained in the injunction order, and it may be said that it is nol: material to the decision of this appeal. It cannot be supposed, however, that it was broad enough to prevent Roof from taking such measures in the nature of a quo warranto as might be necessary to place him in possession of his office from which he was excluded, not by the defendants, but a usurper. And herein lies the answer to the plaintiff's claim. He seeks to recover from the defen- dants the damages which Roof sustained in consequence of the defendants refusing to allow him to discharge the duties of his office. There is no pretence that Roof ever did discharge them, and the evidence shows that through his own neglect he never was in possession of his office. The defendants arc not shown to have interfered with him. His appointment was legal and his right to the office clear. The defendants were under no obligation to place him in possession. His remedy was declared by the law of the land, and the conse- 224 COURT OF COMMON PLEAS. Cassin v. Delaney. qnences of his omission to avail himself of it must be borne by him. The judgment should be reversed. JAMES CASSIN v. LAWRENCE DELANEY, and his wife. The coercion of the wife which is supposed to exist in all cases of tort, com- mitted by her in the presence, or by the direction, of her husband, and for which the husband alone is presumptively liable, is but a presumption of law, which may be repelled by proof. And where the evidence justified the referee in his conclusion that the wrong- ful act of the wife was voluntary on her part, and was her individual act, and although in some respects done in the presence and company of her husband, yet was not done by his command or coercion, Held, that the Court will assume as a matter of fact that the legal presumption of coercion of the wife has been repelled by proof. The plaintiff was arrested and imprisoned at the instance of the defendant L. on a charge of embezzlement. On the examination before the police jus- tice, the plaintiff was discharged on the jjround that the money alleged to have been embezzled by him was not the property of L. but of his wife. The defendant L. went for his wife, who appeared and made her complaint and the plaintiff was detained until he procured bail, Held, in an action for the last arrest, that the wife being proved to have acted voluntarily and without the coercion of her husband, the husband and wife were properly joined as parties defendant. 'Held, further, that the damages arising from the first arrest ought not to be blended with those of the second arrest, and the referee having evidently done so, the Court, on appeal, will reduce the amount of the judgment, or reverse it. .^ APPEAL by the defendants from a judgment rendered on the report of a referee. The action was for maliciously procuring the arrest and im- prisonment of the plaintiff, on a charge of embezzlement. The facts are fully stated in the opinion of the Court. NEW YORK JUNE, 1862. 225 Cassin v. Delaney. Beebe, Dean & Donahue, for appellants. Andrew Blake and E. W. Dodge, for respondents. BY THE COURT. HILTON, J. The defendants were sued jointly for maliciously procuring the arrest and imprisonment of the plaintiff, on the 21st day of November, 1855. The proof, on the trial before the referee, showed that the plaintiff was first ar- rested on the 20th of November, at the instance of the defendant Lawrence Delaney ;that he was imprisoned for that night, and in the morning, on being brought before the police justice, was discharged, because it appeared that the money which it was alleged the plaintiff had embezzled did not belong to the de- fendant Lawrence, but was the property of his wife. He therefore went for her, and she came before the justice and made her complaint for the embezzlement. The plaintiff being still in the court room, was informed by the justice that he could not depart until he gave bail for his appearance on the charge. He did so, and then left, and it is for this last arrest the present action is brought, it appearing that Ann Delaney subsequently went before the Grand Jury to procure the plain- tiff's indictment on the charge she thus made, when her com- plaint was dismissed. On the proofs the referee held the de- fendants jointly liable, and reported in the plaintiff's favor, fixing his damages at one thousand dollars. On the argument of this appeal it is contended on behalf of the defendants, 1st. That as it appeared the wife made the complaint in the presence of her husband, it must be presumed to have been so made by his coercion and command, and therefore he alone is liable. 2d. That the damages awarded are excessive, it being manifest that the referee has mingled the injuries arising from the first ar- rest and imprisonment at the instigation of the husband, with the subsequent arrest on the complaint of the wife: the latter constituting the only ground for the present action, and the former being the subject of another suit pending against the husband alone. It is undoubtedly the rule that for the torts of the wife committed during coverture, in the company or by the order or direction of the husband, he alone is presumptively 226 COURT OF COMMON PLEAS. Cassin v. Delaney. liable ; while for the torts committed by the wife alone, they are jointly liable, and she must be joined with her hus- band-in any suit respecting them. But it is also true that the coercion of the wife, which is supposed to exist in all cases of tort committed in the presence or by direction of the husband, is but a presumption of law, and like all other presumptions may be repelled by proof. 2 Kent Com. 150 ; Bacon ab. tit. Barren & Feme ; Reeve's Domestic Rel. 74-. Here, the testimony appears to have been sufficient to have justified the referee in concluding that the wrongful act of the wife was voluntary on her part and was her individual act, and although in some respects done in the presence and company of her husband, yet not done by his command or coercion ; we must, therefore, assume that the referee found as matter of fact, from the evidence, that the legal presumption of coercion of the wife had been repelled by proof. We think, however, that the other objection respecting the excessiveness of the damages awarded, is well grounded. The referee has evidently blended the injuries arising from both arrests, and awarded damages for both in the present action. We say, evidently, because it cannot be, with an action pending for the recovery of damages for the first imprison- ment, and which really constitutes the only serious injury the plaintiff has sustained at the hands of the defendants, indivi- dually or jointly, a recover}' of one thousand dollars, in the present case can be justified. Under the circumstances, therefore, the judgment must be reversed, and new trial ordered on payment of costs, unless the plaintiff consents to reduce his recovery to two hundred and fifty dollars. Ordered accordingly. SEW YORK NOVEMBER, 1862. 227 Moriarty v. Harnden's Express. MOBIARTY, METEK and others, v. HABNDEN'S EXPRESS. The plaintiffs bought goods of E. and gave directions to ship them by the de- fendant, an Express Company, Held, that under such directions, E. had authority, so far at least as defendants were concerned, to make a contract limiting the defendant's liability. A carrier receiving goods for carriage will not be required to examine the authority of the person presenting them, to make a contract limiting his responsibility. That the right of a common carrier to limit his liability is no longer subject to discussion. APPEAL by the defendant from a judgment entered on a ver- dict, and from an order denying a motion for a new trial. The complaint averred the delivery to the defendants, as common carriers, of two boxes of goods, to be carried from ls r ew York to Selma, Alabama ; that defendants delivered the boxes at Selma, but " so negligently conducted themselves in and about the transportation of the goods, and the taking care thereof, that a part thereof two pieces of silk, one box of hosiery, and box of pins, of the value of three hundred dollars, have been wholly lost." The proof on the part of plaintiff showed that Emanuel & Co., merchants in the city of New York, on the order of Meyer & Co., purchased the contents of the boxes in question, and had them packed in Emanuel & Co.'s store. Meyer & Co. ordered Emanuel & Co. to forward the goods by Ilarnden's Express ; Emanuel & Co. kept in their office a book of the blank bills of lading used by all the express companies ; they sent for defendants' wagon, tilled up one of the bills of lading, and had it signed by the defendants, and returned to Emanuel & Co. The bill of lading stated that Emanuel & Co. had de- livered to defendants two cases, marked M. and E. Meyer & Co.> to be forwarded to Selma, Alabama, and stipulated that 22S COURT OF COMMON PLEAS. Moriarty v. Harnden's Express. the defendants were not to be responsible for any loss or damage arising from the dangers of railroad, steam, or river navigation, leakage, fire, or from any cause whatever, unless the same be proved to have occurred from the fraud or gross negligence of the defendants, their agents or servants. The bill of lading further stated, that goods carried were valued under fifty doll are, unless otherwise stated. This bill of lading was read in evidence by plaintiff". The plaintiff gave evidence showing that two pieces of silk were in the boxes when de- livered to the defendants, and that the same were missing when the boxes were received from the defendants in Selma. The Judge charged the jury among other things, as follows : " It is for you lo say with whom the contract was made whether with Emanuel & Co. or with the plaintiffs. If you conclude that it was made with Emanuel and Co., on the plaintiff's behalf, then, unless Emanuel & Co. had authority to make such a contract, the plaintiffs are not bound by any such condition in the receipt, in respect to the defendants' liability only in the event of fraud or -gross negligence." The jury returned a verdict for plaintiffs, and judgment was entered against the defendant. The defendant then appealed to the General Term. Henry A. Cram, (Cram & Fowler), for appellants. I. The bill of lading was the binding contract between the parties. The authority of Emanuel & Co. was immaterial, and it is a proposition without foundation of authority or prin- ciple, that any one may make a contract with a carrier, and after performance by the carrier, that the contract may be re- pudiated, on the ground of its being the act of an unauthor- ized agent. (2.) The direction to send the goods by Harn- den's Express was an authority to make this very contract. II. Carriers may now, by contract, limit their liability in all cases excepting their own fraud. Dorr v. Steam Nav. Co. 1 Kernan, 490 ; Wells v. Steam Nav. Co., 4 Selden, 381 ; Wells v. N. Y. C. R. R. Co., 26 Barb, 641. III. The right of the carrier to make the contract as to the value clause has been always clear, and was binding in all NEW YORK NOVEMBER, 1862. 229 Moriarty v. Harnden's Express. cases unless in tlie case of actual fraud of the carrier. Cole v. Goodwin, 19 Wend. 251. E. (& E. F. Brown, for respondents. I. The printed matter following the receipt and agreement to carry the goods, reciting an agreement to limit the common law liability of the defendants, was not binding upon the plaintiffs. (1.) Because not signed or expressly assented to by the plaintiffs or their agents. (2.) Because if assented to by the plaintiffs' agents (" I. Emanuel & Co.,") they had no authority to make any contract for the plaintiffs with the Ex- press Company limiting their common law liability. II. The evidence was sufficient to establish " gross negli- gence " or fraud, or even embezzlement against the defen- dants. Camden 4* A. R. R. Co. v. Bauldauf, 16 Penn. 78 ; Swindler v. Hillard, 2 Richardson (S. C.), 286 ; Story on Bail in. 529, 574 ; Clark v. Spencer, 10 Watts, 335. III. The defendants, as common carriers, could not exoner- ate themselves from liability, in case of loss happening through the negligence or fraud of themselves, their agents, or servants, and this they have not attempted to do by their alleged agree- ment, except to limit the value of the goods below fifty dollars, unless otherwise stated. Sager v. Portsmouth R. R., 31 Maine K., 236. BY THE COURT. BRADY, J. The defendants agreed to carry from this city to Selma, Alabama, two cases of .goods marked M. & E. Meyer & Co. At the time the goods were delivered a receipt " was filled up " by I. Ernanuel & Co. who were acting for the plaintiffs in forwarding the goods, and given to the defendants' driver who signed it. That receipt was pro- duced and put in evidence by the plaintiffs after they had rested and a motion for nonsuit had been made on the ground that it appeared from the evidence that there was a written contract which the plaintiffs had not produced. After its in- troduction the witness who had identified it was asked this question, "Was your attention ever called to the printed matter Of this receipt?" The question was objected to, but allowed, and an exception was taken. The witness Vas the book-keeper 230 COURT OF COMMON PLEAS. Moriarty v. Hamden's Express. of I. Emanuel & Co., and it was wholly immaterial whether his attention had been called to the printed matter or not. The evidence had disclosed the fact that Emannel & Co. had a receipt book of the defendants' in their store, from which the receipt in question was adopted by them, and without any ap- plication on the part of the defendants. It was filled up and given to the driver of the defendants and signed by him. The witness was also asked, " What authority had you from Meyer & Co. relative to the shipping of the goods ?" and the question was allowed, although objected to. The answer was, " Our directions were to ship the goods by Harnden's Express ; we had no other authority or direction from the plaintiffs in respect to the shipment." Upon this evidence the presiding Judge charged the jury as follows : " If you find that I. Eman- nel & Co. had no other authority or direction in regard to the goods than merely to purchase and ship them in the ordinary way, then no contract existed between the plaintiffs and de- fendants limiting the liability which the law imposes upon common carriers in case of non-performance of their agree- ment to deliver property in a safe condition." And further, " that unless Emanuel & Co. had authority to make such a contract the plaintiffs are not bound by any such condition in respect to the defendants' liability in the event of fraud or gross negligence." This was substantially telling the jury that unless Emanuel & Co. had the power to make the contract contained in the receipt, the defendants were liable. The charge was erroneous.^ The right of the carrier to limit his liability is no longer subject to discussion. Dorr v. Steam Nav. Co., 1 Kernan, 490 ; Wells v. Steam, Nov. Co., 4 Selden, 381 ; and when a special contract is made the relations of the parties are changed, and the carrier becomes as to that trans- action an ordinary bailee and private carrier for hire, PARKER, J. in Dorr v. Steam Nav. C.o//8upra. The directions given by plaintiffs to ship goods by Harnden's Express, authorized Emanuel & Co., so far at least as the defendants are con- cerned, to make any contract which the defendants insisted upon. If the agents transcended their power, the innocent party should not suffer. There was nothing in the case to call upon the defendants for an examination oj investigation of the authority of Emanuel & Co. It was enough that they deliv- NEW YOKE NOYEMBEK, 1862. 231 Moriarty v. Harnden's Express. ered the goods to them and asked for their carriage ; but in this case they did more, they drew the contract and presented it for signature. It would virtually destroy the liability of the express business, which has become a very important part of our commercial system, to hold that when goods are delivered the carrier who chooses to limit his reponsibility should stop to examine the authority of the person presenting the goods to make the contract which he exacts. It would, in this case, in my judgment, be erroneous to sustain the proposition that Emanuel and Co. had not authority to make this contract. They had possession of the goods and delivered them for car- riage. The possession was a lawful one, and the person selected to transport them, in accordance with instructions received; not only that, but the plaintiffs introduced the con- tract to sustain their case, and then sought to avoid it by prov- ing instructions in relation to the carriage, by the book-keeper of Emanuel & Co. If the doctrine be tolerated, that in cases similar to this, the contract can be avoided for want of power to make it, the proof on the part of the plaintiff should be am- ple. I think the rule is not a sound one, and that its annun- ciation was error. The judgment should be reversed. 232 COURT OF COMMON PLEAS. Jaroslauski v. Saunderson. LEOPOLD JAROSLAUSKI AND OTHERS v. ZACCHIUS W. SAUNDERSON. The plaintiffs transferred the bill of lading of one hundred barrels of flour to the defendant, who was the assignee for the benefit of the creditors of M. & Co., to whom the plaintiffs had given their promissory note, which M. & Co. had indorsed to a third party. When the transfer of the bill of lading was made, the defendant gave a receipt, by which it was stipulated that the flour was to be used as security for the plaintiffs' note, and that the sale of it was to be under the plaintiffs' direction. When the note became due, no demand for its payment w$s made by the holder, and the defendant, having no notice of any intention to sell the flour, sold it, without notice to the plaintiffs. Held that this was a pledge, and the defendant had no right to sell the flour until payment of the note was demanded, and after reasonable notice to the plaintiffs of the intended sale. Sdd further that the plaintiffs, after offering to pay the note and expenses, and after demand of the flour, might maintain an action against the defend- ant for its conversion. Where the cause of action is in tort, and is positively sworn to, an order of arrest will not be disturbed on conflicting affidavits as to the right of action. APPEAL by the defendant from an order denying a motion to vacate order of arrest or to reduce amount of bail. The plaintiffs were makers of a note for $562 25, due June 13, 1861. The firm of Thomas Monroe & Co. received this note from the plaintiffs, and endorsed it to Mason, Lawrence & Co. After the endorsement, Thomas Monroe & Co., the en- dorsees, made an assignment to the defendant for the benefit of their creditors. The day before the note matured, one of the plaintiffs applied to the defendant for an extension of time for payment. The plaintiffs were informed that Mason, Lawrence & Co. neld the note, and that the defendant had no control over it ; but the result of the conversation was, that the plaintiffs trans- ferred to Saunderson a bill of lading for one hundred barrels of flour, then in New York, subject to freight charges. The de- fendant gave the following receipt for the bill of lading : " New York, June 12, 1861. Received of Jaroslauski & Bros. " bill of lading for one hundred barrels of flour, dated Chicago, " June 6th, per Buffalo, which I agree to hold as security for " their note due June 13th, $562 25, the sale of which is under NEW YORK NOVEMBER, 1862. 233 Jaroslauski v. Saunderson. " their direction. Z. W. Saunderson, Asssignee of Thomas " Monroe & Co." Saunderson then informed the holders of the note of the re- ceipt of the flour by him, and of the purpose for which he had received it, and they withdrew the note from bank, where it had been placed for collection. On August 10, 1861, no de- mand having been made on the plaintiffs for payment of the note, and no notice of any intention to sell the flour having been given them, the defendant sold the flour for the then market price vis. $4 35 per barrel. On December 24th, 1861, the plaintiffs demanded the flour from Saunderson, and made him an offer to pay the note and expenses. He informed them that he had sold the flour. On April 9th, 1862, the demand and offer was renewed, and the same answer made. Upon this the plaintiffs brought an action against Saunder- son i>^'on verting the flour to his own use, and claimed to recover the whole value of the flour, which they fixed at $600. The defendant was held to bail in $600 ; and a motion was made to discharge him, or reduce his bail. The Court, at Special Term, denied the motion to discharge the defendant from arrest, and refused to reduce his bail, HJL- TON J. rendering the following opinion : HILTON J. The receipt given by the defendant at the time the bill of lading lor the flour was transferred to him, clearly shows that the transfer was made and intended for collateral security for the payment of the note held by Mason, Lawrence & Co., to whom it had been previously transferred by Thomas Monroe & Co. There was no special power of sale given to the defendant, but, on the contrary, the receipt indicates that the plaintiffs reserved to themselves the right to control and direct any disposition which was to be made of the flour. The transaction was clearly a pledge, requiring a demand of the plaintiffs to be first made for the payment of the note, to authorize a sale of the flour ; and, in addition, the plaintiffs were entitled to reasonable and personal notice of the sale intended. It appears that neither notice to redeem, nor notice of the sale, was given the plaintiffs, and it thus became optional with them to treat such an unauthorized disposition of their proper- ty, as the affidavits show has been made by the defendant, as 234 COUKT OF COMMON PLEAS. Fisher v. Merwin. a wrongful conversion of it, and maintain an action of trover for its value. Stearns v. Marsh, 4 Denio 227. The papers submitted show that this is such an action. Therefore, the motion to vacate the order of arrest must be denied. From the order denying the motion, the defendant appealed to the General Term. ,i!i ? .. as respects the right of set off the assignee occupied the same position as the bankrupt. Assignments of this nature have been aptly termed by Chief Justice Gibson, " a bankrupt law made by the debtor for the benefit of himself" (5 Rawle, 321) ; and viewed in this light, the principle laid down in the English Courts of equity, in assignments to commissioners in bankruptcy, is applicable that assignees of this character, in the language of Lord Hard- wicke, " though they are trustees for creditors, yet stand in the place of the bankrupt, and can take in no better manner than he could." (Brown v. Heathcote, 1 Atk. 162.) " They are not," says Lord Eldon in Mitford v. Mitford (9 Yes., -100), " consid- ered purchasers for valuable consideration. The rights of the bankrupt pass precisely in the same plight and condition in which he possessed them. Even where a complete legal title vests in them, and there is no notice of any equity affecting it, they take, subject to whatever equity the bankrupt was entitled to." There was, as I have already stated, an ascertained and sub- sisting equity between the plaintiffs and Duclos & Co., when they made their assignment, which was not, andcould not be, affected by that instrument. The defendant Hawkins, as their assignee, stands precisely in the same condition as they did, and now that their note is due and payable, the plaintiffs are entitled to have it set off against the debt owing by them. The demurrer is therefore overruled. All the Judges concurred in the decision. GENERAL Term, January, 1863. Subsequently, a motion was made in this case to vacate an injunction which had been granted to restrain the assignee, Hawkins, from disposing of the note of the plaintiffs. The motion was denied, and the defendant Hawkins appealed to the General Term. Dextpr A. Hawkins, for appellant. E. & E. F. Brown, for respondents. BY THE COURT. DALY, F. J. I have already expressed my views upon this case at Special Term in overruling the de- 296 COCJKT OF COMMON PLEAS. Schieffelin v. Hawkins. inurrer to the complaint, and have nothing to add to the rea- sons I theu gave, in support of the conclusions that the plaintiffs were entitled to the equitable. relief which they seek in the action. If the action is maintainable, the injunction to re- strain Hawkins from disposing of the note is a necessary part of the relief sought, and the motion to vacate it was therefore properly denied. The order appealed from should be affirmed with costs. THE MAYOR, &o. OP THE CITY OF NEW YOEK -y. CHABLES V. LYONS and WILLIAM H. CHAKLOCK. In an action against a constable's bond in the city of New York, where it has been adjudged that the answer was frivolous, it is erroneous to enter up a general judgment for the sum mentioned in the complaint. Judgment should be entered up for the penalty of the bond, and the Court moved for an order, under the act of 1813, directing so much money to be levied upon the judgment as shall be sufficient to satisfy the debt or dam* ages of the party aggrieved. In 'such an action, the summons should be for relief, under subd. 2 of 129 of the Code. '"* An irregularity in the mode of entering up a judgment, is waived by an ap- peal from the judgment ; and after an affirmance upon the appeal, a motion to set aside the judgment for irregularity will not be entertained. The defendants having lost the right to move to set aside the judgment, upon the ground of irregularity, the Court permitted the plaintiff to amend the judgment by entering it up for the penalty, that other suitors, if any, might be enabled to have the amounts recovered by them levied under the judgment. APPEAL by the plaintiff from an order made at Special Term, setting aside a judgment as irregularly entered. One Mary Higgins obtained a judgment in the Fourth Dis- trict Court, against the defendant Lyons, who is a constable in the city of New York, for official misconduct, and on the re- NEW YOKE JANUAKY, 1863. 297 Mayor &c. of New York v. Lyons. turn of the execution unsatisfied, leave was obtained of the Court of Common Pleas to commence an action upon Lyons' bond. An action was commenced against Lyons and his surety Charlock. The summons was for a money demand on contract, and the complaint claimed to recover the sum of $97 25, with interest from the date of the recovery of the judgment against Lyons. The defendants appeared and answered, and on a mo- tion for judgment upon the ground of the frivolousness of the answers, the Judge at Special Term decided that the answers contained no defence, and ordered judgment to he entered up for the amount claimed. From the judgment thus obtained, an appeal was taken by the defendants to the General Term, where it was affirmed. Subsequently a motion was made by the defendants at Spe- cial Term to vacate and set aside the judgment for irregularity. The motion was granted, with the following opinion, by HILTON, J. The action being to recover damages for a breach of the covenant in the defendapt's bond, the summons should have been in the form prescribed by Sec. 129 of the Code, sub. 2 ; but by appearing and answering, the defendants waived in this respect the defect in the summons served. They were entitled, however, to notice of assessment of the plaintiffs damages ; and as it appeared from the roll filed that they had not such notice, and indeed that the damages of the plaintiffs have not been assessed or ascertained in the due or proper manner, the judgment entered is therefore irregular, and must be vacated. (Tuttle v. Smith, 14 How. Pr. 454 ; Code, 246, sub.2.) In all actions of this nature, the damage must be assessed by a jury or ascertained by a referee, as the Court may direct. (3 Itev. St. 5th ed. 661, 7.) Motion granted. From the order entered, the plaintiff appealed to the Gene- ral Term. Bernard Hughes, for appellants. I. The judgment sought to be set aside for irregularity, hav- ing been affirmed by the General Term on appeal, became a 298 COUKT OF COMMON PLEAS. Mayor &c. of New York v. Lyons. judgment of the General Term, and could pot be disturbed or set aside by a Judge sitting at Special Term. The appeal was a trial of a question of law on the merits, and was a waiver of all irregularities in the judgment. ( Wood v. Randall, 5 Hill, 264 ; Malcomc v. Baker ', 8 How. Pr. 303 ; Englis v. Fumess, 8 Abbott's Pr. 83.) II. It was not necessary that the plaintiff's damages should have been reassessed by a jury or referee before the entry of judgment. (1) The act providing for the recovery on a con- stable's bond provides fot the manner in which the liability of the sureties in the constable's bond shall be ascertained. A recovery against the constable is conclusive evidence of the liability of the sureties. (Davies' Laws, 518 ; Carpenter v. Doody, 1 Hilton, 467.) (2.) The plaintiff's damages were al- ready assessed, first by the previous recovery against the con- stable, and second, by theJudge at Special Term, when he or- dered judgment for the plaintiffs on the pleadings. D. M. O'Brien for respondents. The judgment as entered up was clearly irregular. The judgment should have been entered up for the full penalty of 'the bond (five hundred dollars), and there should have been an application to the Court, on notice, for relief ; so that the dam- ages sustained by the plaintiffs might be assessed by writ of inquiry, or otherwise, as the Court might direct. (2 Rev. Stat., 4th ed. 627, 7.) BY THE COUET. DALY, F. J. This judgment was undoubt- edly irregular. The condition of the bond npon which the action was brought was that the defendant Lyons would well and faithfully execute the office of constable, and the mode of pro- ceeding in an action upon bonds of this nature is regulated in part by the 147th section of the act to reduce several laws re- lating to the City of New York into one act (Rev. Laws of 1813, p. 396), and in part by Art. 2, Tit. VI., Chap. YL, Part III. of the Revised Statutes pointing out tho mode of proceeding in action upon bonds for the performance of covenants. It is not, in the sense of the fifth section of the article referred to in the NEW YOKE JANUARY, 1863. 299 Mayor &c. of New York v. Lyons. Revised Statutes, a bond for the payment of money. The de- scription of bond there meant is one for the payment of money in gross, the amount and the time for the payment of which is fixed by the condition of the bond, and in which no assessment of damages is necessary, as nothing remains but to compute the amount of interest, which may be ascertained by the clerk (Graham's Practice, 503, 2 ed.) ; but it comes under the general class there referred to in which the plaintiff must set outjn his complaint the specific breaches for which the action is brought. This article in the Revised Statutes is not repealed, the only modification it has undergone being the provision of the Code which allows the Court to take the proof, or to order a reference to ascertain the damages, when a judgment is taken in an action upon such a bond by default. The 147th section of the Act of 1813 declares that where a recovery is had against a constable by a party aggrieved through the officer's default or misconduct, that such party may obtain an order in this Court that the bond be put in suit, and if judgment is recovered, the act directs that this Court shall, upon motion, direct so much money to be levied upon the judgment as shall be sufficient to pay the party the debt or damages, so recovered, with costs, to be paid to the party aggrieved. If there has been an appearance in the cause, this motion must be made upon notice to the opposite party, (King v. Stafford, 5 How., 30 ;) and since the Code, sec. 246, the Court, instead of directing an assessment, as was formerly the practice, or a reference, may hear the proof of the recovery of the judgment against the officer, and if satisfied of the fact, make the order provided for in the act referred to. Instead of doing this, the plaintiff, upon its being adjudged that the answer was frivolous, took a general judgment for the sum- mentioned in his complaint. This was erroneous. He should have entered up judgment for the penalty of the bond, and then moved the Court for the order provided for by the Act of 1813. But although the mode in which the judgment was entered was irregular, the defendants waived the irregularity by appealing from the judgment to the General Term ; and judg- ment having been given against them on the appeal, they could not afterwards move to have the judgment set aside for irregu- 300 COUET OF COMMON PLEAS. Mayor Sue. of New York v. Lyons. larity. It is a general and long-established rule, in all appli- cations to set aside proceedings for irregularity, that th& party complaining of it must make his application at the first oppor- tunity after he has knowledge of the fact, 'and before any further proceedings have been had. It is, said Lord Kenyon in Pearson v. fiauling (1 East, 77,) " the universal practice of the Court, that when there has been an irregularity, if the party, overlook it and take subsequent steps in the cause, he cannot afterwards revert back to the irregularity and object to it ;" and to the same effect are, D' Argent v. Vivant, 1 East., 330 ; Fox v. Money, 1 Bos. & Pul., 250 ; The King v. Perry, 5 T. R, 464 ; Petrie v. White, 4 id., 10. At first it was questioned whether the rule was not confined to cases where the party complaining of the irregularity had tak en some sub- sequent step, but in Downs v. Wiiherington, 2 Taunt., 243, it was held to apply equally where the party with knowledge of the irregularity remained passive, and allowed the other party to take a subsequent step ; and in Thorpe v. Beer, 2 Barn. & Aid., 548, as indicating the general policy of the Courts upon the subject, it was held, that where a party moves for irregu- larity he is bound to state every irregularity of which he wishes to take advantage, and is considered to have waived all those which he does not state at the time. The principle of this rule applies equally whether the motion is made before or after judgment. In Jones v. Dunning, 2 Johns. C., 74, the defend- ant moved after judgment, and the Court denied the appli- cation upon the ground that they had suffered two terms of the Court to go by, when it was to be presumed that they had notice of the proceedings against them, and to the same effect are Sharp v. Pell, 10 Johns., 487 ; Rowan v. Lytle, 4 Cow., 91 ; Graham's Practice, 702, 2d ed. The defendants in the present case knew of the irregularity, as they appealed from the judgment, and if they wished to avail themselves of it they should have moved to set the judgment aside, instead of taking an appeal from the order di- recting the entry of the judgment, and from the judgment. The error in the mode of entering up the judgment could not be reviewed upon appeal. (Whitehead v. Atten, 28 Barb., 661 ; King v. Stafford, 5 How., 30.) NEW YORK JANUARY, 1863. 301 Mayor &c. of New York v. Lyons. The appeal, therefore, must have been brought upon other grounds, or for delay ; and it is not to be tolerated that a par- ty, knowing that the judgment is irregularly entered up, shall be at liberty to appeal from it to the General Term ; and if he fails there, go to the Court of Appeals ; and ultimately failing, to get the judgment reversed, be permitted to do then what he ought to have done in the beginning, that is, to move the Court to set the judgment aside as irregularly entered, with- out putting the other party to the expense and trouble of the appeal. It may be said that as the error consists in the way in which the judgment was entered^ the Court ought, for the benefit of other parties who may recover judgment against the same officer, to see that it is properly entered up for the penalty. We do not know that any other parties will have occasion to bring suits against this officer, and we can see that no injustice has been done, as this judgment is for the amount which the par- ty would in any event be entitled to ; or, as was done in Martin v. Lott, (4 Abbott's R., 365,) the defendant's application could have been denied, with costs, upon the ground that they had lost the right to make it ; and for the benefit of other parties, should any recover judgments against the officer for official misconduct, and that the defendants may not be made liable beyond the penal limits of their bond, the plaintiff could, and under the circumstances should, have been permitted to amend his judgment by entering it up for the penalty, with a further judgment that he have execution for the amount recov- ered against the officer, and costs. The order appealed from should in my opinion be modified to that effect. The defend- ants having lost the right to move upon the ground of irregu- larity, cannot complain of an order directing that the judg- ment be entered up properly ; that other suitors, if any there should be, may be enabled to have the amounts recovered by them levied under this judgment in the way in which the statute provides. (Davies's Laws, 549.) The other Judges concurred. 302 COURT OF COMMON PLEAS. Thompson v. Harrison. JOHN H. THOMPSON v. HENBY G. HARRISON. The redemption of a promissory note by the pledgor, on payment of an ad- vance made upon it as collateral security, will not carry with it the equitable right of set off against the pledgee, in a suit by the pledgor against the maker of the note. The fact that the pledgee, while the note was in his hands, brought suit upon it in his own name, is mere matter of evidence of ownership ; and it being found as a fact on the trial, that the note was deposited as collateral merely, Held, that a counter-claim against the pledgee was properly disregarded. APPEAL by the defendant from a judgment of the Eighth District Court. The facts are stated fully in the opinion of the Court. A M. Burr, for appellant. A. H. Wagner, for respondent. . BY THE COURT. DALY, F. J. This action was brought upon a note made by the defendant to the order of the plaintiff. Before the note became due, the plaintiff borrowed twenty dollars upon it from one Powell, and indorsed it to Powell to be held by him as collateral security. The note was not paid when it fell due, and Powell brought it back to the plaintiff, who, being unable to pay back the twenty dollars, told Powell to sue upon it, and take out what was due him. Powell accordingly brought an action upon the note in his own name against the defendant, and the defendant set up in that action as a counter-claim a note made by Powell for a greater amount which was past due, and which the de- fendant had purchased from the assignee of the payee. No further proceeding would seem to have been taken in the ac- tion, at least it does not appear that any thing further was done after the pleadings were put in. Powell then returned the note to the plaintiff who paid him back the twenty dollars and his expenses, and the plaintiff commenced the present suit, to which the defendant set up the note made by Powell as a counter-claim. It constituted no defence whatever, and the justice properly gave judgment for the plaintiff. Judgment affirmed. , NEW YORK FEBRUARY, 1863. 303 Baxter y. Wallace. JOHN C. BAXTER and others v. ROBERT B. WALLACE. A person whose real interest in a vessel is only that of a mortgagee, and who has never taken possession of the same, is not answerable for supplies, although he holds a bill of sale, vesting in him the legal title, and the vessel is regis- tered in his name at the custom house. The registration of a vessel at the custom house, under a bill of sale, although accompanied by the oath of the person in whose name it is registered that he is the true and only owner, ia not conclusive as to the ownership. To make a mortgagee responsible for supplies, it must be shown either that he was in possession of the vessel, or that the supplies were furnished at his re- quest, or by the direction of some person authorized to contract in his behalfl APPEAL by the defendant from a judgment of the Eighth Dis- trict Court. The action was brought to recover from the defendant the value of certain supplies furnished to the brig Hope, in the port of New Fork. It appeared in evidence on the trial that the defendant loaned one Webster a sum of money, to secure which Webster caused to be executed to the defendant a bill of sale of the brig, which vessel Webster had purchased at a Marshal's sale. Webster took a paper in the nature of a defeasance, wherein it was pro- vided" that upon the re-payment of the loan, with interest, the defendant was to re-convey to him or to his order, the title of thS vessel. The defendant assumed no control over the vessel. The supplies for which the action was brought, were obtained from the plaintiffs by the mate of the brig, upon the introduction of Webster, the purchaser and mortgagor, and it appeared that the profits of her voyage accrued wholly to Webster, and not to the defendant. Judgment was rendered for the plaintiff, and the defendant appealed to this Court. 304 COURT OF COMMON PLEAS. _ Baxter v. Wallace. Dennis McMahon, for the appellant. A. S. Diossy, for the respondent. BY THE COURT. DALY, F. J. The plaintiffs sought to charge the defendant Wallace as owner of the brig Hope, for supplies furnished to the brig in the port of New York, where the ves- sel belonged. To charge the defendant personally it was neces- sary to show that the supplies were famished either by his ex- press authority, or under circumstances from which an authority would be implied. The supplies were furnished at the request of the mate of the vessel and one "Webster. "Web- ster introduced the mate to the plaintiffs, and told them to de- liver what goods he might order for the brig, and to present the bill on board, and that it would be paid. The plaintiffs produced no evidence to show that either Webster or the mate had any authority from the defendant to order the supplies, and the defendant swore expressly that he had never authorized any person to present the bill to him ; that he did not know the mate ; had never had any transactions with him ; that he never had possession of ihe vessel ; had never seen her but once ;'had nothing to do with the loading of her ; did not control her run- ning in any way ; had no interest in her profits, and had never employed any officer or any one on board of her. This was decisive upon the question of authority, and as the plaintiffs were allowed to recover it must have been upon the ground that the defendant held a bill of sale of the brig, and had made the usual affidavit at the Custom House that he was the owner of the vessel. - The nature of his interest was this : Webster bought the brig at a Marshal's sale, and to complete the purchase he bor- rowed $800 of the defendant upon an agreement that the title should be taken in the defendant's name as a security for the loan. The bill of sale was accordingly made out in the name of the defendant, and a written instrument in the nature of a defeasance was executed by both parties, setting forth that Wallace bad loaned Webster $800 for the purpose of enabling him to purchase the brig ; that it was agreed that the title should be in Wallace, and that Wallace, upon the payment to him of the $800 and interest, was to transfer the vessel to Web- ster or his order. This was not such an ownership as would 1SEW YOKK FEBRUAKY, 1863. 305 Baxter v. "Wallace. make the defendant responsible for supplies furnished to the vessel, though the bill of sale was made out in the name of the defendant. The transaction, as shown by both instruments was, in legal effect, a mortgage. He held the bill of sale merely as security for the eight hundred dollars, and though the legal title was vested in him, his interest was no greater than that of a mortgagee. It is well settled that a person whose real interest is that of a mortgagee, and who has never taken possession of the vessel, is not answerable for supplies, though he holds a bill of sale vesting in him the legal title, and though the vessel had been registered in his name. (Noartyman v. Hart, 1 Stark. R. 366 ; Hasketh v. Stephens, 7 Barb., 488 ; Leonard v. Huntington, 15 Johns., 298 ; Molntyre v. Scott, 8 id., 159 ; Abbott on Shipping, p. 35 to 40, 132, 8th Lond. ed.) The registration of a vessel at the Custom House under a bill of sale, although accompanied by an oath that the person in whose name it is registered is the true and only owner, is not conclusive as to the ownership, the object of the registry being simply to determine the national character of the vessel ; and though a bill of sale is absolute upon its face, it may be shown that it was intended in fact to operate as a mortgage. (Sharp v. United States Ins. Co., 14 Johns., 201 ; Weston v. Penniman, 1 Mason, 318 ; Ring v. Franklin, 2 Hall R. 1 ; Dey v. Dunham, 15 Johns., 555.) To make a mortgagee responsible for supplies it must be shown either that he was in possession of the vessel (Miln v. Spi- nola, 4Tlill, 177), or that they were furnished at his request or by the direction of some person authorized to contract on his behalf. Nothing of the kind was shown here, and there was no ground whatever for the judgment. Judgment reversed. 20 506 COURT OF COMMON PLEAS. Le Sage v. Great Western Railway Co. CLINTON LE SAGE and AUGUSTUS L. LIVINGSTON v. THE GREAT WESTERN RAILWAY COMPANY, and THE DETROIT AND MILWAUKEE RAILROAD COMPANY. The defendants, who are common carriers, running connecting lines , of rail- way from Buffalo to Milwaukee, through their mutual agent hi the city of New York took from the plaintiffs the receipt of the Hudson River Rail- road Company, for certain goods marked, " Janesville, Wis., via M. D. R. R.," and gave therefor a bill of lading, whereby it was agreed that the de- fendants would transport said goods over their lines to Milwaukee. At Buffalo, the goods, instead of being delivered to, or received by the defend- ants, were delivered on board a propeller, to be carried thence by lake to Milwaukee. The propeller and her cargo were lost on her passage. Held, in an action against the defendants to recover damages for the loss, that as the receipt of the Hudson Railroad for the goods was given to the mutual agent of the defendants, and as the holder of that receipt was enti- tled to the custody of the goods upon their arrival at Buffalo, it was incum- bent upon the defendants to explain how it was that the goods were for- warded from Buffalo by a different route than theirs, and that it occurred under circumstances exonerating them from responsibility. By appearing and pleading to the merits, the defendants waive all objections to the form of the summons. APPEAL by the defendants from a judgment of the Marine Court at General Term. The action was brought to recover the value of five bales of cordage and rope, received by the defendants for shipment from New York to Milwaukee. The goods were delivered by the plaintiffs to the Hudson River Railroad Company at New York, and on presentation of the receipt of that Company at the office of one Beach, the joint agent of the defendants in New York, the agent gave a bill of lading as follows : " NEW YORK, November 15, 1860. " Received of S. & L. (Receipt of H. R. R. R.,) three bales " cordage, two ditto rope, which goods the Great Western, and " Detroit and Milwaukee Railways agree to transport over their "lines to Milwaukee, at the rates herewith mentioned," &c. &c. NEW YOKE JULY, 1863. 307 Le Sage v. Great Western Railway Co. In the margin of the bill of lading it was declared that " no liability is assumed for miscarriage or wrong delivery of goods that were not properly marked, and as directed by bills issued at this office." The goods were marked, as stated by the Hudson Eiver Railroad receipt, " E. S. Barrows, Janesville, "Wis., via M. D. R. R." It was admitted on the trial that the goods were carried by the Hudson River Railroad to Albany, where they were delivered by that Company to the New York Central Railroad, and consigned by the latter Company, as per its way bill, to Buffalo. At Buffalo the goods were shipped on board of the propeller Dacotah for Milwaukee, by Lakes Erie and Michigan. The propeller and her cargo were lost on Lake Erie in a storm. . The defence was that by the defendant's rules and regula- tions, which they allege were known to the plaintiffs, all goods and property delivered or to be delivered to them, to be transmitted over their roads, should be distinctly marked " via Gr. W. & D. & M.," or " D. & M. all rail ;" and if the plaintiff's goods had been so marked, they would .have been delivered to the defendants at Suspension Bridge, and by them transported over their roads to Milwaukee. At the trial, the plaintiff's agent who procured the bill of lading, testified that no questions were asked as to how the goods were marked, and nothing was said to him in reference thereto by the defendant's agent. The jury rendered a verdict for the plaintiffs. Luther R. Marsh for appellants. Baldwin & Farnham for respondents. BY THE COURT. DALY, F. J. By appearing and pleading to the merits, the defendants waived all objections to the form of the summons. (Gosling v. Broach, 1 Hilt., 49.) The receipt or bill of lading is in the name of both of the de- fendants and is signed by Beach as their agent. Upon its face it is an acknowledgment of the receipt by them of the five bales, marked as in the margin of the bill, to be transported over their lines to Milwaukee. The clerk who obtained it de- clared that nothing was said to him as to the manner in which the goods were marked ; that he presented the receipt of the 308 COUKT OF COMMON PLEAS. Le Sage v. Great Western Railway Co. Hudson River Railroad Company at Beach's office, Beach not being there, and gave it to a young man who gave him the bill of lading ; aiid that no questions were put to him as to how the goods were marked. Beach and the young man Haight testi- fied to a very different state of facts which, if true, would have exempted the defendants from all responsibility for the loss of the goods. The jury, having found for the plaintiffs, they must have discredited the statements of Beach and Haight, and their finding upon such a point is conclusive. The bales were not in the actual custody of either of the defend- ants at the time of their loss upon the propeller on Lake Erie. Their mutual agent received the receipt of the Hudson River Railroad Co. He or the holder of the receipt was alone en- titled to receive them in Buffalo, and if they wer.e sent on a different route from the road of either of the defendants, it was upon the defendants to show how that occurred, and that it was under circumstances that would relieve them from responsibility. Their mutual agent by taking the receipt and giving a bill of lading, assumed the control and transportation of the property from Buffalo to Milwaukee. He engaged to transport it first by the Great Western and afterwards by the Detroit and Mil- waukee road, as marked and directed, charging the full freight for its carriage by their connecting routes, and it is now well settled that an agent of a railroad corporation may bind his principal by such a contract, (Hart v. The Rensselaer and Sara- toga Railroad Co., 4 Seld., 37 ; Quimby v. Vanderbilt, 17 N. Y. 312 ; Mallory v. JSurniU, 1 E. D. Smith, 234.) I see nothing in the case to disturb the judgment. Judgment affirmed NEW YORKJULY, 1863. 309 Dubois v. Thompson. NATHANIEL N. DUBOIS v. JOHN THOMPSON. A broker who receives money with specific instructions to purchase with it certain stock, and neglects to do so, but uses it for some other purpose, and not for the benefit of his principal, is liable to arrest under section 179 of the Code. The mere fact that the principal has accepted as security certain bonds for the amount of his deposit with the broker, does not change the character of the latter's liability. APPEAL by the defendant from an order at Special Term denying a motion to vacate an order of arrest. The facts sufficiently appear in the opinion of the Court. E. More, for appellant. Henry E. Knox and William Fullerton, for respondent. BY THB COTJET. BRADY, J. In May, 1857, the defendant, who was then a stock-broker, was instructed by the plaintiff to purchase for him thirty shares of the Delaware and Hudson Canal Company stock, at a certain price per share, and was put in funds to do so by the deposit with him of securities, by the sale of which he realized three thousand seven hundred and ninety-nine dollars and seventy cents. He neglected to make the purchase, and in August following the plaintiff having called upon him for the stock and having discovered that it had not been purchased, again instructed him to buy, but to buy a number of shares of the Pennsylvania coal companies and a certain number of second mortgage bonds of the Terre Haute and Alton Railroad Company. The defendant also neg- lected to make these purchases, and excuses himself upon the assertion that he was invested with discretionary power, and before it could be exercised to the plaintiff's greatest benefit, he was crushed by the panic of 1857, and rendered unable to meet his engagements. Whether the instructions in August were positive or not is settled by the affidavit of Mr. SIC COUKT OF COMMON PLEAS. Dubois v. Thompson. Staples. He was with the plaintiff when they were given, and was requested to call on the defendant on behalf of the plain- tiff, and obtain from him the shares and bonds last above men- tioned, which he did, and the defendant failed to deliver them. The defendant, then, it appears received money as a stock broker for a specific purpose, and used it for some other purpose, and not for the benefit of the plaintiff. His liability to arrest under section 179 of the Oode is a question not open to discus- sion. His counsel seems to think, however, that the order of arrest should have been vacated, even if the defendant was not authorized to use any discretion, or was liable to arrest on the original transaction, because the plaintiff accepted interest on his deposit, and subsequently accepted bonds of the Breck- inridge Coal Company in payment of his debt. The plaintiff, however, swears that he received no interest on the transaction stated, and the books of the defendant show that none was credited. The transaction itself is one in which the plaintiff might have been credited with interest from May to August, inasmuch as the defendant had held funds of his during that period, not as a debtor, but as a broker, with specific instruc- tions, which he was violating. But the fact is that no interest was received or allowed. It is equally certain that the plaintiff did not accept the bonds spoken of in payment of his debt. He did accept them, but as security only, and they were inade- quate. This appeal cannot for these reasons -be sustained. The defendant undertook to discharge a trust, and failed to do 80. He must take the consequences. Order appealed from affirmed. I NEW YORK JULY, 1863. 311 Vanderpool v. Smith. JACOB VANDERPOOL v. THOMPSON SMITH and JOHN W. WILSON. Where there is no disturbance of actual possession, or where the holding over by the landlord is not with the intent of keeping the tenant out of possession, after he has become entitled to it, there can be no pretense of an eviclion. The plaintiff demised to the defendants a plot of ground for ten years, which they used as a lumber yard, reserving to himself the right to occupy a small wooden building upon the land, for a year and a half, and which he used for the storage of certain articles for one day over the time, having received no intimation from the lessees of their intention or wish to use it. Upon that day they notified him of their intention to remove, upon the ground that he had broken the lease by withholding a part of the premises, and imme- diately commenced removing, which occupied them eighteen days. Held, that there was no disturbance of the lessees' possession, as they had never been in occupation of the building, and as the holding over was with no de- sign to retain it against their wish, it was simply an attempt to get up an eviction, and constituted no defence to an action for the rent. APPEAL by the defendants from a judgment of the Marine Court at General Term. The action was brought to recover the sum of four hundred dollars, with interest, for the rent of premises on the First Ave- nue in the city of New York, for the quarter ending November 1, 1861. The defence was eviction. A full statement of the facts is given in the opinion. Sheldon <& Brown and William Tracy, for appellants. Francis Byrne and A. J. Vanderpoel, for respondent. BY THE COURT. DALY, F. J. The defence set up by the answer is, that the plaintiff on the 3d of August, 1860, took possession of a one-story frame building, forming part of the demised premises, and wrongfully prevented the defendants from the enjoyment of it, by withholding from them the possession ; in consequence of which they gave up and re- moved from the whole of the premises, and this defence 312 , COURT OF COMMON PLEAS. Vanderpool v. Smith. is repeated over some six times, with a slight change in the phraseology, or by changing the position of the words, as if the pleader were desirous of showing the Court in how many different ways he could say the same thing. In each form in which it is averred the defence set up is an eviction, and the only question in the case is whether the evidence given upon the trial established an eviction. The Court below, both at special and general term, held that it did not, and in my opinion they were right. The case is a peculiar one, and the facts lie in a narrow compass. In 1860, the plaintiff leased to defendants a large plot of ground on the First Avenue, between Thirty -first and Thirty-second streets, with certain buildings thereon for the space of ten years, which the defendants used as a lumber yard. In the lease the plaintiff reserved to himself the right of occupying different parts of the premises up to a certain speci- fied period, the last of which reservations was the right to occupy a small one-story frame building up to first day of August, 1861. The frame building was used by the plaintiff for the storage of sand-paper and varnish, in the possession of which he contin- ued, the defendants, as he said, not having required it, until after the 1st of August, 1861. On the 2d of August, the defendants sent him a notice in writing, so carefully worded as to indicate that it was prepared by or under the direction of a professional adviser, informing the plaintiff that the defendants thereby declared the lease null and void, and that they thereby rescinded and repudiated it, claiming that he had broken the lease, and failed to fulfill it by keeping possession of, and with- holding from them, a portion of the premises, to wit : the one- etory frame building on Thirty-first street, and notifying him of their intention to remove from the premises immediately, and tendering him the possession of them ; which the plaintiff answered by a letter on the following day, expressing his sur- prise that they should conceive themselves to be exonerated from their liability, and suggesting in respect to his being in possession of the frame building, that that circumstance was sought as an excuse for their desire to get rid of their contract. The defendants commenced removing on the 2d of August, and by the 20th they had everything removed except their lumber on the sidewalk and street, when they sent the key to the NEW YOKK JANUARY, 1863. 313 Vanderpool v. Smith. plaintiff, together with a letter advising him that they had removed everything, that he could resume possession, and that they would pay no rent after the 1st of August, 1861, as he had broken the lease on his part, and ousted and withheld from them a portion of the premises. The plaintiff sent the key back. He admitted that he had retained possession of the one-story frame building until the 7th of August, as they had not required it of him, and he on that day sent them the key of the building, which they declined to receive. It no doubt occurred to the Court below, as it occurs to us, that the plaintiff by continuing his goods in the frame building beyond the 1st of August, had no intention in fact of withholding or depriving the defendants of the possession of it ; but that he did so upon the assumption that they were not yet in want of it, and that on their part they meant and designed that he should remain in possession of it beyond that day, that they might seize upon that circumstance as a means of getting rid of their long lease. If the evidence warrants, as we think it does, this conclusion, then it is not a case of eviction. As soon as the first of August was passed, on the very next day, they gave their formal notice that he had ousted and withheld from them a portion of the premises, and broken the lease on his part, and on that very day they commenced removing, showing that they must at that time have provided themselves with other premises, a task, the removal of an entire lumber yard, which they were not liable to complete until nearly a month afterwards. It was, in fact, an attempt on their part to get up an eviction without any wrong- ful intent on the part of the plaintiff to retain against their will the building, to the use of which they became entitled on the 1st of August. In Edgerton v. Page (1 Hilt., 320), and in Vermilyea, v. Austin (2 E. D. Smith, 204,) I have examined very fully the question of what will constitute an eviction, and it is sufficient to refer to the cases and authorities there collected to show that there was not in this case on the part of the landlord that intentional and wrongful taking of a part of the premises which justifies the tenant in abandon- ing the whole, or if he continue in possession of the portion which is left, suspends the payment of any rent until he is restored to the entire possession. 314 COURT OF COMMON PLEAS. Martin v. Blydenburgh. This right of the tenant to have rent suspended, or, if he so elect, to abandon the premises where he has been intentionally and wrongfully dispossessed of part by the landlord's act, is founded upon the reason, says Bacon (6 Abr. M. 2) " that no man may be encouraged to injure or disturb his tenant in possession, whom by the policy of feudal law he is bound to protect and defend." There was no disturbance of possession here, for the defendants had never been in possession of the frame building, and unless the holding over was with the intent of keeping the defendants out of the possession after they became entitled to it, there could be no pretence of an eviction. We must infer that the Judge who tried the cause was of the opinion that no such intent existed, and we think that he was warranted in eo finding upon the evidence. The judgment should be affirmed. JOHN MARTIN v. HAMILTON BLYDENBUKGH, President of the Bank. i The owner of a bank bill accidentally tore it into two nearly equal parts, one of which, containing no words giving it a negotiable character, was lost. The bank, on demand being made upon it for the amount of the mutilated bill, re- fused payment until indemnified by the owner against the loss which would ensue to it from the refusal of the Bank Department to issue a new bill, or to re-transfer so much of its security pledged for the redemption of its circula- tion. Held, that the bank was liable for the amount of the note. 1. The embarrassment to the bank in enabling it to procure another bill, of re- transfer of an equal amount of its securities, does not furnish any defence to such an action. 2. This was not a case of a lost note, and the provisions of 2 Revised Statutes, 406, 75, 76, requiring a bond of indemnity to be given by a party seeking to re- cover on lost notes, etc., have no application. 3. This was clearly such a mutilated note as is contemplated by the act of 1840, ch. 363, 5, which it would be the duty of the Superintendent of the Bank De- partment to receive and deliver in lieu thereof to the bank another note of the same amount. NEW YORK-^TULY, 1863. 315 Martin v. Blydenburgh. APPEAL by the defendant from a judgment entered on the report of a referee. The action was brought against the defendant as President of the Nassau Bank of the City of New York, upon a bill of said Bank for one hundred dollars, which was duly registered in the Bank Department by the number 265, and signed by the President and Cashier. Late at night on the day of receiv- ing the bill, the plaintiff accidentally tore the bill in two nearly equal parts, and lost one of them, which contained upon it the name of the Cashier and Register in the Bank Department. The portion retained by the plaintiff had upon it the following words and figures : NASSAU BANK. o. January 3, 1860. On demand, dollars, to E. JB., or bearer. No 265. Cask. H. BLTDENBUEGH, Prest. The grounds of the defence will appear in the opinion of the referee. HAMILTON W. ROBINSON, Referee. The defendants are a banking association, incorporated under the general banking law, and, by their articles of association, their charter is to continue until the 1st of November, 1952. The plaintiff has presented the portion of the bill which he retained, and demanded payment of the amount, but has been refused. He hos also applied to the Superintendent of the Bank De- partment, to issue, in lieu thereof, another registered note to the same amount, having the assurance of the defendant that he would execute a new bill, or pay him the amount, if the Superintendent of the Bank Department would issue one in its stead ; but this application having been refused, the plaintiff has pursued the only course left him for the recovery of the amount of the bill, by commencing this action. Were this an action against the maker of an ordinary prom- issory note, which had been similarly torn into two parts, one of which had been lost, there could be little question as to the right of the plaintiff to recover the amount of the face of the 316 COURT OF COMMON PLEAS. Martin v. Blydenburgh. bill, the same as if it were actually destroyed. The note or bill, by this accident, ceased to present, in either part, the essential features of a promissory note, and neither portion con- tained any such terms as imported an obligation to pay any sum of money whatever. The part which was lost possessed no negotiable character, nor could its possession, by any other person than the plaintiff, confer any right to any portion of the money which was payable by the terms of the original bill. (Ed. on Prom. Notes, 307, cases cited, note 2.) The character of the bill, as a negotiable promissory note, was destroyed, and the right to any recovery exists in the fact of its ownership, at the time when it lost that character. This is not the case of a lost note, since there is nothing lost which constitutes a note or obligation, or which would lay the foundation for any recovery by any other person against the makers. The provisions of the Revised Statutes, (2 R. 8. 406, 75, 76,) requiring a bond of indemnity to be given by the party seeking to recover on lost notes and bills of exchange, have no application, nor does any such reason exist in the case of a mutilated note, for requiring indemnity against claims upon it by other persons, as prevailed in relation to a lost note. (Story on Bills, 44 ; Story on Prom. Notes, 445.) The objections urged by the defendant against a recovery are not predicated upon any apprehended claim of any bona fide holder of the lost portion of this bill, but from the inconvenience and injury which it is contended he will suffer in consequence of the refusal of the Superintendent of the Bank Department to issue a new bill, instead of the mutilated portion of the original bill, of which the plaintiff still has possession ; and they claim that before the plaintiff should be permitted to re- cover, they are entitled to complete indemnity against the loss, which would ensue to them, from their inability to obtain another bill, or a re-transfer from the Bank Department of so much of the stocks or mortgages, which, under the provisions of the banking law, were lodged by them for the protection of their circulation, as stood security for, or could be redeemed by, the bill in question. No such difficulty could exist were these securities held by a private individual, as relief could be afforded by the Courts to the debtor for the restoration of his pledge, when the object NEW YOKK JULY, 1863. 317 Martin v. Blydenburgh. of the hypothecation had been accomplished ; but the embar- rassment suggested is supposed to arise from the omission of any provision in the general banking law to either compel the issuing of another bank bill, instead of the one so injured, or to release so much of the securities of the bank, deposited with the Bank Department, as stood as security for the note, after it has been paid by the bank which issued it ; and the defendants express apprehension that so much of their securities must necessarily remain impounded until the expiration of their charter, notwithstanding the debt which it was to secure has been satisfied. In my opinion, their apprehensions of difficulty, from any of these sources, do not furnish any defence against the note or bill in question. first This is clearly such a mutilated note as is contem- plated by the act of 1840, chap. 363, 5, which it would be the duty of the Superintendent of the Bank Department to receive, and deliver, in lieu thereof, to the defendants, when they pre- sented it, another circulating note to the same amount. To " mutilate" is " to deprive of some essential part," and, as already stated, this bill, by the -absence of the part that has been lost, is deprived of so essential a part as to have lost its character as a promissory note, while the lost part is equally defective as a bank bill, and inoperative as a pecuniary obli- gation. The statute has, under such circumstances, conferred upon a banking association, or individual banker, the absolute right to have another note of the same amount issued in lieu of the mutilated note. It does not impose the necessity of produc- ing the parts of the note of which it has been deprived, or of establishing by proof the annihilation of such fragments as may be wanting. When, as a matter of fact, a circulating bank bill has been mutilated, and the case contemplated by the statute has occurred, the duty of the Superintendent is immediate and imperative, and if he refuses or neglects performance, it may be enforced by the courts. Many cases might be supposed in which a fraud might bo perpetrated, or mistake made, by which more than one note 318 COURT OF COMMON PLEAS. __ Martin v. Blydenburgh. might possibly be issued, instead of that which had been muti- lated ; but the law assumes that the officer has the skill and the capacity so to act as to avoid the possibility of any such occurrence, and requires from him the same care and attention in the matter as in "the performance of any other official duty ; but, Second. Whatever may be the embarrassment to the defen- dants from a defect in the law, in enabling them to procure another bill in lieu of this mutilated note, or in being able to procure a re-transfer of an equal amount of the stocks or mort- gages lodged as security for their circulating notes, it does not furnish, in either view, any defence to an action against them to enforce performance of their legal obligation to pay to the law- ful holder, or to the person whom the law regards as occupy- ing that relation, where the note has actually been deprived of its character as an entire perfect contract. The Legislature, upon grounds of public policy, has required the deposit, with the Bank Department, of security for circu- lating notes, issued under the provisions of the general banking law ; and in order to guard against the issuing of any bills for which such security has not been given, has also provided for the countersigning and registry of each note before it is deliv- ered to the bank or banker making the deposit," for the purpose of enabling them to execute it and put it in circulation ; but these formalities and pre-requisites do not enter into, or constitute any part of the contract with the lawful holder of the bill ; the obligation to pay him the amount is absolute and independent of any question connected with the collateral securities in the Bank Department. The holder is in no manner responsible for any loss of the securities, or embarrassment in reclaiming them from the possession of the trustee, to which he has not contributed ; and if he has been guilty of any misconduct in reference to them, he must be made responsible for it in an action in which the ground of complaint and cause of damage or loss are distinctly charged. From the nature of the business contemplated by the gen- eral banking law, it must have been anticipated that many of the circulating notes issued by a bank would, in the ordinary occurrence of accidents, become lost or destroyed ; but there is NEW YOKK JULY, 1863. 319 Martin v. Blydenburgh. nothing in its provisions which can be held in any way to relieve the bank or banker that had issued such notes from the ordinary common law liability of any other maker of a lost or destroyed note. No provision is made for the issuing of other notes in their stead, nor for the re-transfer, upon request, of securities, to an equal amount for the lost or destroyed note, as is allowed upon the surrender or cancellation of circulating notes. The loss or destruction of notes ordinarily implies negligence on the part of the loser, and the consequence ought to fall on him rather than upon the innocent party ; but the contingency against which the courts are scrupulous to protect the inno- cent party is the possible claim of some subsequent fonafide holder, and the loss of the evidence by which the rights of the loser of the note may be substantiated, and, as to this, they exact a full indemnity. The Legislature has, however, not seen fit to visit upon the holder or owner of lost or destroyed bank bills the penalty of forfeiture of his debt, or to impose upon him any other disabil- ity, or to exact from him any other security, than that which was required by the provisions of the Revised Statutes. (2 R.8. 406, 75, 76.) Notwithstanding the inconvenience which would attend the loss or destruction of circulating notes to the bank or banker who issued them, from their inability, under the existing provisions of the banking law, to obtain other notes in their stead, or a re-transfer of their securities to an equal amount, prior to relinquishing the banking business, they would still be able to draw the interest or dividends upon them, and finally procure their surrender, after compliance with the formalities pointed out by the statute. But all this prospec- tive inconvenience, in recovering full control of their collat- erals, would furnish no defence to an action upon their lost bill, and their claim would be confined to such damages as they might show they had sustained from this impounding of their securities. An action against the holder or owner, for injury sustained through his negligence, in losing or destroying the bill, would in such a case, be of doubtful success, especially as it is to be presumed that the Legislature would accord the same justice as would be meted out by the court as between private persons 320 COURT OF COMMON PLEAS. Martin v. Blydenburgh. and would not disregard any appeal for relief against injustice arising from any omission in the law by which the Bank De- partment were suffered to retain the securities after the object of the pledge had been satisfied. But, on the other hand, it might well be argued, that in the omission of any allusion to the contingency of the loss, or destruction of bank bills, or any marshaling of the securities, so as to make any particular por- tion of them stand specifically for any particular bills, (except in allowing a surrender of securities to the amount of bills de- livered up and cancelled,) that the increase of security from this source, for the benefit of the outstanding circulating notes, was intentional. Under these views, I am of the opinion that no defence, legal or equitable, is established, and that the plaintiff is en- titled to recover the amount of the one hundred dollar bill, with interest since demand of payment. Judgment for the plaintiff having been entered upon the re- port of the referee, the defendant appealed to the General Term. Augustus F. Smith, for appellants. I. No action at law will lie in this case, and the case of Hinsdale v. Bank of Orange, 6 "Wend., 368, is not an author- ity to sustain the action since the law of 1840. II. The Bank Department were right in refusing to give a new bill. This is not a mutilated bill within section 5. The Department are required " to receive mutilated circulating notes," and issue others. A mutilated note does not mean a destroyed note. A body is not mutilated when its vital parts are gone. A man is mutilated when his leg or arm is cut off. The leg or arm cannot be said to be mutilated when the body is taken fr6m it. To mutilate, is " to cut off a limb or essential part of an animal body." ( Webster.} This part of the note produced cannot be said to be a mutilated note. It is no longer a note. Nothing of the vital principle remains. The Depart- ment was then not bound to receive it, nor to issue another. III. If the Department were not bound to issue a new note, no bond could be given which would indemnify the defendant, short of one on which he could immediately recover back the money. In effect, then, no action, even in equity, could be sustained. NEW YOEK JULY, 1863. 321 Martin v. Blydenburgh. 5- IY. But the referee required no bond whatever. If any action can be sustained, it can only be upon fully indemnifying the Bank. Townsend & Kane, for respondent. I. The plaintiff being the legal owner of the whole bill and the holder of a part, the other part having been lost by him, was entitled to recover. The note or bill in this condition ceased to present in either part the essential features of a promissory note, and neither portion contained any such terms as imported an obligation to pay any sum of money whatever. The part which was lost possessed no negotiable character, nor could its possession by any other person than the plaintiff confer any right to any por- tion of the money which was payable by the terras of the orig- inal bill. The character of the bill as a negotiable promissory note was destroyed, and the right to any recovery exists in the fact of its ownership at the time when it lost that char- acter. (Edwards on Bills, &c., 307, and cases there cited. Hinsdale v. Bank of Orange, 6 Wend., 378.) II. The defendant is not entitled to any indemnity from plaintiff. The provisions of the Revised Statutes do not apply to this case. This was neither lost nor negotiable, nor does any such reason exist in relation to severed or mutilated notes re- quiring indemnity against claims upon them by other persons,, as prevails in relation to a lost note. The defendant refused; indemnity, not, however, upon the ground that the indemnity offered was not sufficient. The plaintiff cannot be made responsible for the action of the- Bank Department in unlawfully refusing to issue a new bill, and cannot be called upon to indemnity against any such event. Story on Bills, 44. Story on Prom. Notes, 445. III. The portion of the bill upon which this suit is brought is a mutilated note within the meaning of the 5th Section of Chap. 363 of the Laws of 1840, and the bank superintendent should have issued another bill when requested to do so. The statute was intended for such cases as the present. The Bank Department did not, however, refuse to issue another in lieu of part produced upon the ground that it was not a mutilated bill, but upon the ground that the plaintiff 21 a22 COUET OF COMMON PLEAS. * Williams v. Tradesmen's Fire Insurance Co. would not (as he could not) state that the missing part was " actually destroyed" BY THE COURT. DALY, F. J. We have nothing to add to the reasons given by the Referee in support of his find- ing that the plaintiff was entitled to recover, and the report in our judgment should be affirmed. Judgment affirmed. HEBEET C. WILLIAMS v. THE TRADESMEN'S FIRE INSURANCE COMPANY. The Court may at special term dismiss an appeal from the general term of the Marine Court for irregularity. But if the proceedings are regular, the ap- peal must be heard at the General Term, even upon a question of jurisdic- tion. The Court will permit an amendment by which an appeal may be perfected, where notice of appeal has been served. By section 354 of the Code, the notice of an appeal from the General Term of the Marine Court, must be served upon the respondent personally, and the undertaking for costs must be executed by the appellant himself. But where it appears that the appeal was taken in good faith, and notice of the appeal was served upon the clerk of the court below, and upon the attorney who appeared for the respondent on the trial below, Held, that it is within the discretion of this Court to allow the appellant to perfect his appeal, and amend his proceedings by serving a notice of the appeal upon the respon- dent personally, and executing a new undertaking. APPEAL by plaintiff from an order made at Special Term on a motion made by the plaintiff to dismiss an appeal taken from the General Term of the Marine Court. The General Term of the Marine Court had granted the plaintiff a new trial, and the cause had been set xlown for trial for a particular day. After this, and before the trial, the de- fendant served upon the plaintiff's attorney a notice of appeal, with a copy of an undertaking. The undertaking was not exe- cuted by the defendant. The plaintiff moved at Special Term of this Court to dismiss the appeal on the ground that there had been no actual determination of the action by the General Term of the Marine Court, and that therefore an order grant- NEW YORK DECEMBER, 1863. 323 Williams v. Tradesmen's Fire Insurance Co. . ing a new trial was not appealable ; also on tlie ground that the defendants had not executed the undertaking on their part as required by law ; and also on the ground that the notice of appeal was not served upon the plaintiff personally. The Court at Special Term, (Hilton, J.) made an order that the appeal be dismissed, with costs, unless the defendants within ten daya amend the undertaking given, and serve a notice of appeal on the plaintiff as required by law. The following opinion was given by HILTON, J. The respondent being a resident of the county, the notice of appeal should have been served upon him instead of the attorney who appeared on his behalf, on the trial in the Marine Court. (Code, sec. 354.) But as it is conceded to have been served on the Clerk of the Court, and also on the attorney, and it appearing that the appeal has been taken in good faith, the defect is amend- able. (Sec. 327.) The same remark applies to the undertaking for costs given under sec. 354, which is required to be executed by the appel- lant. The appellant may amend within ten days, and if he does, the costs of this motion to respondent will abide the event of the appeal. If he does not, the motion to dismiss the appeal will be granted with costs. As it is claimed and not denied that the Marine Court granted the new trial on the ground that the verdict of the jury was against evidence, the appeal must be heard at General Term. (Figaniere v. Jackson, 4 E. D. Smith 477.) The plaintiff then appealed to the General Term. N. P. O'Brien^ for appellant. I. The notice of appeal not having been served on the respondent (Code, 354,) the appeal is not effectual. II. The undertaking required by section 354 was not given, and the appeal on that ground is also ineffectual. III. The defect is not amendable under section 327 of the Code, because the notice of appeal was not served, and also because said section does not apply to appeals from the General Term of the Marine Court to the Court of Common Pleas. 324 COUET OF COMMON PLEAS. . Williams v. Tradesmen's Fire Insurance Co. Bradley, Mills <& Woodhull, for the respondent. I. The defects in the service of the notice of appeal and in the undertaking were curable. (Code, 327.) II. This Court at Special Term has no power to dismiss an appeal on the ground that the order or judgment appealed from is not appealable. This power can be exercised by the General Term only. (Bradley v. Van Zandt, 3 Code Kep., 217.) An appeal from the Marine Court is to this Court, and must be heard at a General Term. (Code, 352 and 304.) The motion to dismiss this appeal brings up the vital question in the case, namely, whether the appeal can be taken at all. If a single Judge, at Special Term, can decide this vital question, then he can perform the duties of a General Term by forever prevent- ing the same being heard there. III. The Marine Court in granting a new trial on the sole and only ground that the verdict was contrary to evidence, ex- ceeded their powers. (Figmiere v. Jackson, 4 E. D. Smith, 477.) The proper remedy for the defendants, the party seeking to sustain the verdict, was by appeal to this Court. The only way of reviewing the action of the Marine Court is by appeal to this Court. (Code, 351.) IV. The order of the General Term of the Marine Court re- versing the judgment and ordering a new trial was " an actual determination" of that General Term within the meaning of 352 of the Code. (Bayner v. Clark,. 7 Barb., 581, 582.) A judgment at General Term rendered by consent is therefore not an actual determination. (Gridley v. Daggett, 6 How. 280.) iS'or is a judgment at General Term entered by default an actual determination. (Dorr v. Birge, 8 Barb., 351.) Here was an actual determination by the Marine Court at General Term. The cause was argued at length by counsel on both sides and decided after long deliberation. BY THE COURT. BRADY, J. The order made at Special Term in this case must be affirmed. There is no doubt of the power of this Court to permit an amendment by w.hich an appeal may be perfected where a notice of appeal has been served. In this case the notice was served, although it was not served on the respondent. Section 327 does not provide in terms that the service must be on the party to entitle the NEW YOKE DECEMBEK, 1863. 325 Beardsley v. Sherman. appellant to relief, and whether the omission to do that, where the notice has been served upon the Clerk of the Court, and the respondent's attorney, should prevent us from granting the relief asked, is a matter of discretion to be exercised by this Court. This Court may at Special Term dismiss an appeal for irregularity. The proceedings being 'regular, however, the appeal must be heard at the General Term even on a question of jurisdiction. Order at Special Term affirmed with ten dollars costs to ap- pellant, the defendant to abide the event of the appeal from the Marine Court.* MAKGABET E. BEARDSLEY v. BENJAMIN SHERMAN. In an action by a tenant to recover damages for the unlawful removal of fix- tures during his possession of the premises, proof of a demand is unneces- sary. And a judgment rendered for the defendant in such an action, on the ground that no demand for the possession of the fixtures had been shown, will be reversed. APPEAL by the plaintiff from the judgment of a District Court. The action was brought to recover damages for wrongfully taking and detaining certain gas fixtures, belonging to the plaintiff, and attached to the house No 315 West 16th Street, New York City, of which she was the occupant. The premises were sold by the owner in January, 1862, and possession given to the purchaser about the first day of March following, but it did not appear clearly when possession was surrendered by the plaintiff. Judgment was rendered for the defendant. David Mo Adam., for appellant. William B. Rankin, for respondent. BY THE COURT. BRADY, J. When the term of the plaintiff expired does not appear, but it seems from her evidence, though on that subject it is in conflict with the * Bee subsequent appeal in the same case, post. 326 COUKT OF COMMON PLEAS. Beardsley v. Sherman. defendant's testimony, she had not yielded possession when the fixtures were taken away. The Justice, ignoring the question presented on these facts, decided in favor of the defen- dant, on the ground that no demand had been made of him for the fixtures. This question was not in issue and was im- material. The rule in reference to the right of the tenant to remove fixtures, and which necessarily formed the basis of the investigation in this case, has been stated to be that things annexed to the freehold, if movable at all, must be moved before the expiration of the tenancy, (Poole's case, 1 Salk. 368 : Lyde v. Russell, 1 Barn. & Aid., 394 ; Marshall v. Lloyd, 2 Mees. & Wels., 450 ; Ex parte Quincy, 1 Atk., 477; Lee v. Risdon, 7 Taunton, 191 ; Colgrave v. Dias Santos, 2 Barn. & Cress., 76 ; Reynolds v. Shuler 5 Cow. 323 ;) and it is founded on the supposed abandonment of the fixtures, when left on the premises, (Lord Kenyon in Penton v. Rolart, 2 East, 88 ; Amos & Ferard on Fixtures, 87 ;) or that they become a gift in law to him in reversion, and are not removable (per Holt in 1 Salk. 368, supra.) The rule, however, is not as broadly stated in England or in this State. The tenant may remove the fixtures after the term has expired, and during his possession (Penton v. Robart, supra ; Weston v. Woodcock, 7 Mees. & Wels. 14 ; Dubois v. Kelly, 10 Barb. 496 ; Holmes v. Tremper, 20 Johns. Rep., 29,) and if he enters after the expiration of his term to remove fix- tures owned by him, is only a trespasser as to the entry (Lord Kenyon in Penton v. Robart, supra; Holmes v. Tremper, supra.) It is very clear from these authorities that the deci- sion of the Justice was founded upon an immaterial issue. The question on the evidence was whether the defendant took the fixtures during the possession by the plaintiff. If he did, then he was liable in damages. The right of the plaintiff to remove during possession cannot well be doubted, and the violation of that right must subject the wrongdoer to an action. If the fixtures had been removed by the defendant after the plaintiff's abandonment of them by yielding possession, such removal could not, on the authorities, be regarded as a tortious taking, though the detention might be held to be unlawful. In the latter case, a demand would be necessary, and perhaps a serious ISTEW YOKK DECEMBER, 1863. 327 Western Transportation Co. v. Hawley. question might arise* as to the right of the plaintiff to maintain an action of trover to recover their value. The Jus- tice seems to have regarded a demand necessary in any event, for upon its absence from the plaintiff's evidence he found against her. The finding is the more objectionable for the reason that the defendant made no motion for a dismissal of complaint on the ground referred to or called upon the plain- tiff to make the proof omitted. I think the judgment should be reversed. Judgment reversed. THE WESTERN TRANSPORTATION COMPANY v. THOMAS R. HAWLEY and JOSIAH HOWE. The fact that the consignee's business address was stated in the bill of lading does not oblige the shipper to depart from his known and usual place of de- livery, and deliver the cargo at a pier more contiguous to the consignee's place of business. Very slight evidence that a person, assuming to act as the defendant's agent, was in fact his agent, should suffice to allow the question to go to the jury ; as the defendant has it in his power, now that parties may be witnesses in their own case, to show at once if the fact were otherwise, and that the acts of the agent were without his knowledge or authority. The facts that the defendant, the consignee, was notified that if the cargo was discharged elsewhere than at the pier where the vessel lay, lighterage would be charged ; and that afterwards a written request to send the vessel to another pier came in his nume, signed by the person who had acted as his agent in shipping the cargo, who had been seen in and about his office, and who assumed in such request to act as his agent, upon which request the cargo was so delivered, Held, sufficient to warrant a finding on the part of the Jury that it was by the defendants' request that the vessel was moved and the cargo was delivered at another pier. Heldfurtfier, that the sending of such a request by the defendant, after notifi- cation that a charge in such case would be made for lighterage, would be sufficient to support an implied a&tumpsit that the defendant would pay what was customary, if any custom existed, or, if no custom existed, a rea- sonable compensation. Held further, that the plaintiffs claim upon such an implied agreement would not be limited to the amount actually paid out by them for towing the ves- sel from one pier to another, but they would be entitled to such an amount of extra compensation as the Jury might fix. 328 COCJRT OF COMMON PLEAS. Western Transportation Co. v. Hawley. Lighterage is the price paid for unloading ships'by lighters or boats, and a charge for taking a boat to another pier instead of the usual one of delivery would not be embraced under that term. Demurrage is only recoverable where it has been expressly stipulated for though where there has been an unreasonable or improper detention of the vessel by the act of the freighter or consignee, damages may be recovered by the owner. APPEAL by the plaintiff from a judgment at Trial Term, dismissing the plaintiff 's conplaint. The action was brought to recover the sum of ninety dollars as extra compensation, in addition to freight and charges,for delivering a cargo at a pier other than the one at which the plaintiffs usually delivered. It appeared on the trial that the boat upon which the pro- perty in question had been brought to the City of New York, belonging to and in the employ of the plaintiff, having arrived at its place of destination, was moored at the usual landing place of the plaintiff. Notice of the arrival, and of the plain- tiff's readiness to deliver, was immediately given to the defen- dants, the owners and consignees of the property, together with the further notice that the property would be subject to lighterage, in addition to the freight and charges, if taken out elsewhere than in the slip specified; which was the usual land- ing place of the plaintiff. Upon this notice being served on the defendants, the plain- tiff was requested by a note in writing, signed in the defen- dant's name " per F. S. Hall" to move the boat from Pier 7 to Pier 3, to deliver cargo, etc. Under this order and request the boat was moved to tho place designated by the defendants, and the cargo in question was there delivered. The usual and customary charge for light- erage under such circumstances was fifty-four dollars, the charge including compensation for the continued responsibility of the carrier after the boat had arrived at a place of safety, and the use of the boat in the meantime. The plaintiff having rested its case, the defendants' counsel moved the Court to non-suit the plaintiff and to dismiss the complaint, upon the ground that the proof on the part of the plaintiff did not tend to establish a cause of action against the NEW YOKK DECEMBEE, 1863. 329 Western Transportation Co. v. Hawley. defendants ; upon the ground that the customs attempted to be shown were not sufficiently proved so as to be binding upon the defendants, and did not tend to establish a cause of action ; and upon the further ground that demurrage was not chargeable against the defendants, unless stipulated for in the bill of lad- ing; and upon the further ground that it was not suffici- ently proven that the vessel was delayed in discharging her cargo by any conduct of the defendants or their servants ; and upon the further ground that it was not sufficiently proven that the request to tow the vessel from Pier 7 to Pier 3 was giren by authority of the defendants. The Court granted the motion upon each of said grounds, and the plaintiff insisted upon its right to go to the jury upon the questions of facts, and resisted the motion of the defen- dants' counsel ; but the Court refused to allow the case to go to the jury, and ordered the complaint to be dismissed. John Hulbelly for appellants. 1. The plaintiff having carried the property to the place of des- tination and given notice of its readiness to deliver the same at its usual and customary place of delivery, its contract was fully performed. It was not bound to take them to the wharf or place which was near and most convenient to the consignee, or that which he specially directed, unless it had previously agreed to do so. (1 Parsons on Contract, 667 ; Chickering v. Fowler, 4 Pick., 371; Angel on Carriers, 282.) II. The plaintiff was also entitled to recover for the demurrage claimed. The boat in question arrived in New York on the 19th of April ; two days afterwards (on the 21st,) the plaintiff gave notice to the defendants that it was intended to charge five dol- lars a day demurrage, from and including the 22d, until dis- charged ; three days being a reasonable time for its discharge. The defendants acquiesced in the notice, and detained the boat for seven days after the expiration of the time specified. III. The doctrine that demurrage must be specified in the bill of lading does not apply in this case. The mas'er, it is concede!, cannot collect demurrage, unless it is specified in the bill of lading, for the reason, that the bill of lading is his 330 COUKT OF COMMON PLEAS. Western Transportation Co. v. Hawley. only authority to collect anything, even the freight. But there is no such rule as affecting the owner of the vessel. He may recover for the improper detention of his vessel as against the consignee, without reference to the bill of lading. D. McMahon, for the respondents. I. In an action like the present, i. e., founded on the breach of a contract to pay a reasonable compensation for delaying a vessel, demurrage is not chargeable against defendants, unless stipulated for in the bill of lading. (Roberston v. JBethune* 3 Johns., 342. (1.) Whatever might be the consequence of an action brought to recover damages for an unreasonable deten- tion, yet such is not the present case. On the contract counted on, the appellants, we submit, cannot recover, unless a contract to pay demurrage and a breach of such contract are shown. (2.) The bill of lading introduced by appellant, and which is the proper evidence of the contract, shows nothing of the kind ; it contains no stipulation to pay demurrage, nor does the plain- tiff show that the defendants ever promised to* pay the same. (3.) The mere request to move the barge from pier 7 to pier 3 on her arrival, and before bulk was broken, even if con-, ceded to have been made by a person having authority from the defendants, does not imply any promise on the part of the defendants to pay demurrage. II. Such an alleged custom to pay demurrage and lighter- age, as was attempted to be proved in this case, would not be binding on the defendants unless they had ratified it, or a prior course of dealing with the plaintiff had existed, from which a ratification might be inferred. The evidence excluded any such. idea. III. The plaintiff counted on a contract with the defendants, that the latter should pay the extra expense occasioned by such removal. No such contract was proven here. The mere request to move, made by Mr. Hall, did not prove any contract by the defendants ; Mr. Hall was not shown to be the agent of the defendants, and the bill of lading itself provided for the delivery to, Hawley & Howe, 102 Broad Street, N. Y., which is opposite to pier 3, and not near pier 7. NEW YORK DECEMBER, 1863. 331 Western Transportation Co. v. Hawley. BY THE COUBT. DALY, F. J. The averment in the complaint was that the plaintiffs were ready and offered to deliver the property at the usual and ordinary place of delivery, but that the defendants requested them to deliver it at a different place, agreeing to pay them for delivering it at that place a reason- able compensation, together with the costs and charges incur- red by so doing. They proved that their usual place of delivery was Pier No. 7, East River ; that immediately upon the arrival of the boat, they gave notice of their readiness to deliver at that place, advising the defendants that the property would be at the risk of the owner or consignee, when landed on the wharf, and that it would be subject to lighterage, in addition to freight and charges, if taken out elsewhere than in the slip. After the de- livery of this notice to the defendants, the plaintiffs received a written request to send the boat to Pier No. 3, East River, to deliver the cargo, Pier No. 3 being at the foot of Broad street, and the defendants' place of business being at No. 102 Broad street. To this written request the name of the defendants' firm was signed as follows : Hawley & Howe, per F. S. Hall ; F. S. Hall, according to the bill of lading, having, as agent, shipped the cargo from Tonawanda by the plaintiffs' boat to the defendants' address. The plaintiffs accordingly sent their boat to pier No. 3, where the cargo was delivered to the defendants. The plaintiffs are a corporation engaged in the transportation of merchandise between the cities of Buffalo and New York, by the way of the Erie Canal and the Hudson River. They proved that their usual place for the delivery of cargoes by canal boats was pier No. 7 East River, and the fact that the defendants' address, 102 Broad street, was stated^ in the bill of lading, did not oblige the plaintiffs to depart from their usual place of delivery, and deliver this particular cargo at a pier more contiguous to the defendants' place of business. Having notified the defendants of the arrival of the boat, and of their readiness to deliver at Pier No. 7, they did all, in my judgment, that they were required to do under the contract. (Rowland v. Miln, 2 Hilt. 150 ; Ostrander v. Brown, 15 Johns. 39 ; Gib- son v. Culver, 17 Wend. 305. 332 COURT OF COMMON PLEAS. , Western Transportation Co. v. Hawley. The facts that the defendants were notified that if the property were taken out elsewhere than at Pier No. 7, lighterage would be charged, and that afterwards a written request to send the boat to Pier No. 3 came in their name, signed by the person who acted as agent in shipping the property to them at Tona- wanda, who had been seen in and about their office, and who assumed in that letter to act as their agent, and that the pro- perty was delivered to them at Pier No. 3, were sufficient^ in my judgment, to warrant a finding on the part of the Jury that it was by the defendants' request that the boat was sent to Pier No. 3. Yery slight evidence under such circumstances should suffice ; the defendants, now that parties may be wit- nesses in their own case, having it in their power to show at once if the fact were otherwise, that the. order sent in their name was without their knowledge or authority. And the send- ing of such a request after they had been notified that a charge in such a case would be made for lighterage would be sufficient to support an implied assumpsit that they would pay what was customary, if any custom existed, or if not, a reasonable compensation. I do not think that the evidence showed that the tariff of charges for lighterage agreed upon by the transportation com panies had been so generally acquiesced in as to become estab lished as a custom, or that any custom existed as to the right to demand lighterage in such cases. Indeed, I do not under- stand how the term can be considered applicable to such a case, the ordinary signification of lighterage being the price paid for unloading ships by lighters or boats. Here there was noth- ing of the kind, but simply the unloading of a canal boat at one wharf or pier instead of another. The term as used in the plaintiffs' printed notice undoubtedly meant additional compen- sation beyond the freight and ordinary charges, and this the defendants, in my opinion, were obliged to pay, not in conse- quence of an established custom, but from an implied under- standing that they would pay what was fair and reasonable, and what would be a reasonable compensation could be determined by the jury upon the evidence. No right to exact demurrage was shown. Demurrage is recoverable only where it has been expressly stipulated for, NEW YOEK DECEMBER, 1863. 333 "Western Transportation Co.-v. Hawley. though, where there has been an unreasonable or improper detention of the vessel by the act of the freighter or consignee, damages may be recovered by the owner* (Evans v. Foster, 1 Barn, and Ad. 118 ; Robertson v. BetJiune^ 3 Johns. 342 ; Clendaniel v. Tuckerman, 17 Barb. 191.) There was 110 proof here as to the time when the boat was sent to Pier No. 3. It appeared simply that she arrived on the 19th of April; that the request to deliver at Pier No. 3 was sent upon that day, and that the cargo was not discharged until the 29th of April. Ten days elapsed from the day of her arrival until the day of her final discharge. But whether the delay was caused by the defendants or not, assuming it to have been an unreasona- ble length of time, does not appear. The only evidence was the service upon the defendants of a notice that they would be charged $5 a day demurrage after the 21st of April (the day of the notice,) until the discharge. It was shown that the actual expense for towing the boat from Pier No. 7 to No. 3 would be $3 ; but the plaintiffs' claim upon the implied agreement for extra compensation would not be limited to the amount actually paid out by them 'for towing the vessel from one pier to another. It was in evidence that it was necessary in the transportation business for the various companies generally to have some place for receiving property brought by them to the city by canal. It was shown that the plaintiffs had a pier for that purpose, and it is inferable from that fact that it was more convenient for them and facilitated their business to deliver their cargoes there rather than else- where. The transportation companies had agreed among themselves as to a tariff of prices which had no reference what- ever to the distance to which the vessel might be moved about the city, but was demanded if the property was taken out else- where than in the slip where cargoes were ordinarily deliv- ered. This was the express stipulation in the printed notice served by the plaintiffs before they received the order to send the boat to pier No. 3, and under this agreement, they were entitled, ''in addition to freight and charges," to an extra compensation, the amount of which, under the circumstances, could be fixed only by the jury. 334 COURT OF COMMON PLEAS. Eckstein v. Frank. A new trial, therefore, should be granted. BRADY, J. I concur. HILTON, J. (dissenting.) I agree that the question as to what would be a reasonable compensation for towing the barge from Pier 7 to Pier 3 should have been submitted to the jury, but on looking into the printed case I find that, apart from the alleged custom upon which this action is sought to be main- tained, but which was not established, the only proof upon the question of compensation was, that it would cost three dollars to remove the barge from one pier to the other. It certainly cannot be material to order a new trial for so small a sum, and I think in this case we should apply the maxim " De minimits non curat lex" and affirm the judgment. Judgment reversed, and a new trial ordered. HENRY ECKSTEIN v. HERMAN FRANK, Jy JOSEPH FRANK, his guardian, &c. A minor who obtains property upon representations that he is of full age, is liable in an action of tort, either to recover the property back, or to recover damages upon the ground that it was wrongfully obtained. APPEAL by the defendant from the judgment of a District Court. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and judgment rendered for the plaintiff on the trial. A. J. Dittenhoefer, for appellant. I. The representations of the defendant, set forth in the complaint, to wit, " that he was over the age of twenty-one NEW YOEK DECEMBER, 1863. 335 Eckstein v. Frank. years, and capable of contracting a legal liability," were not proven on the trial, and the Justice erred in admitting in evi- dence and rendering judgment on any other representations. The representations, as alleged, must always, in actions ,pf this nature, be strictly proved. II. The defendant, being an infant, was not liable at all (1) No action, as for a deceit; can be maintained against an infant, even when he has attained his age, founded upon a false representation of his age. He is not estopped from pleading his infancy by any declarations as to his age made by him at the time of the contract. The doctrine of estoppel has no application to infants, (ferowft v. McCune, 5 Sandf. R., 224 ; The People v. Kendall, 25 Wend., 399.) (2.) In the case of Brown and McCune, cited above, the action was on CON- TRACT, and the plaintiff moved to amend the complaint, so as to make it a claim for damages by reason of the false represent- ations as to the defendant's age. The motion was denied. In .a very recent case in England (De Roo v. Foster, Com. Pleas) it w.as held that " a replication on equitable grounds to a plea of infancy, that the defendant fraudulently contracted the debt by means of a false and fraudulent representation that he was of full age, is bad on the ground of departure, and disclos ing no answer in equity." III. The judgment is erroneous on the ground, that, as the substantial cause of action in this case rests on promises, the plaintiff (Jannot, by changing the form of action, make the defendant, an infant, liable, who would not have been liable on the promise. (Green v. Greenbank, 2 Marshall, 485 ; 4 Eng. Com. Law R., 375 ; Campbell v. Perkins, 8 N. Y., 430.) BY THE COURT. DALY, F. J. The doctrine of Johnson v. Pie (1 Lev., 169 ; 1 Keb., 905, 913,) though recognized in a comparatively recent English case (Price v. Hewitt, 8 Wels., Hurl. '& Gor., 146,) and though believed to be the law by Justice Sandford in Brown v. McCune (5 Sandf., 224,) had been eight years before distinctly repudiated by the Supreme Court of this State, upon full consideration, in Wallace v. Morse, (5 Hill, 392,) and it has also been considered and repudiated in a great number of cases in other States (Fits v. Hall, 9 New Hanip., 441; Badger v. Phinney, 15 Mass., 359; Homer T. 336 COURT OF COMMON PLEAS. Henderson v. Slurg'.s. Thwing, 3 Pick., 492 ; Rice v. Clark, 8 Verm., 109 ] Green v. Sparry, 16 id., 393; Town v. Wile , 23 id., 361; Vosse v. &ntYA, 6 Cranch, 226 ; ^wrky v. 7? tt^/,10 New Hamp 184; Kilgrtfoe v. Jordan, 17 Texas, 349 ; Norris v. Fawce, 3 Kich., 164 ; Pr0m v. Sutchli/e, 4 McCord, 387 ; Jervis v. Z^Ze- ^eW, 15 Maine, 233 Ward v. Fom, 1 Nott & McCord, 1, 7.) It is therefore to be regarded as overruled in this country by an overwhelming weight of authority. The Justice has found that the defendant, before the contract was entered into, represented himself to be twenty-two years of age, he then being a mino^r. When an infant obtains property by falsely representing himself to be of full age, an action of tort may be maintained against him, either to recover it back or to recover damages, upon the ground that he obtained the possession of it wrongfully. It has long been the rule in courts of equity, that an infant will be held liable where he obtains property by a false representation respecting his age. "If an infant is old and cunning enough," says Lord Chancellor Cowper, " to contrive and carry out a fraud, he ought to make satisfaction for it." (2 Eq. Ca. Ab., 515,) and the good sense and justice of requiring him to do so has been held in the numerous cases cited to be as applicable in a court of law as in a court of equity. The judgment should be affirmed. HENDERSON & EEID v. STTTRGIS and others. Where a sub-contractor is prevented from performing the whole of his con- tract with the contractor by reason of the failure of the latter, and an assignment by him of the contract for the benefit of his creditors ; Held, that he may acquire and enforce a lien for the value of his labor anil mate- rials performed and furnished up to the time when he was prevented. Although at the time the sub-contractor filed his lien there was nothing due to the contractor, yet the latter having made an assignment with the consent of the owner, who detained from the contract price the amount of the lien, and the sub-contractor having, under an agreement with the assignee, com- pleted his work, as contemplated by the original contract, Held, that the equities are with the sub-contractor, and a court of equity will apply the sum so detained in satisfaction of his lien. NEW YORK DECEMBER, 1S6\ 337 Henderson v. Sturgis. APPEAL by the plaintiffs from a judgment of a District Court. The action was broug ht to enforce a lien filed under the Mechanic's lien law. The facts are fully stated in the opinion of the Court. BY THE COURT. BEADY, J. The plaintiffs, on the 18th of June, 1860, made an agreement with the defendants, "Wester- velt & Camp, who were the contractors, to perform certain work towards the erection of two houses belonging to the defendant Sturgis. On or about the 2nd of October, 1861, "Westervelt & Camp failed and made an assignment. On the 5th of October, 1861, the plaintiffs filed a lien claiming one hundred dollars to be due, this being a part only of their con- tract price, which was two hundred and fifty dollars. The assignee of Westervelt & Camp, as such, finished the buildings under the original contract, but the plaintiffs made an agree- ment with him to complete their work, which was finished as contemplated by their agreement with "Westervelt & Camp, At the time the lien was filed there was nothing due to the contractors, but the defendant Sturgis consented to the assign- ment and retained ultimately the sum of one hundred dollars as security against the lien. Can the plaintiffs recover on these facts ? The Justice thought not, and dismissed their complaint. He was in error. The statute of 1851 provides for a lien to be gained by filing a notice, etc,, after the performance of the labor or the' furnishing of the materials (per Woodruff, J., in Jacques v. Morris, 2 E. D. Smith, 643,) but the plaintiffs were prevented from performing their contract with Westervelt & Camp by the' failure of the latter. The contract between them b^'ing an entirety, and the work not having been done, no lien could have been acquired on the 5th of October, 1861, unless the contract had ceased to continue by some act of the parties or by operation of Jaw. The effect of the failure of the contractors and assignment by them was to prevent the plaintiffs from proceeding with their work, and the contract was at an end. (See Belsliaw v. Colic, 1 E. D. Smith, 213.) And in this respect this case is analogous to Dennistoun v. McAllister, (4 E. D. Smith, 729,) in which the plaintiff recovered against the owner the amount of his claim, 22 333 COURT OF COMMON PLEAS. Gates v. Haley. although it was proved that he had not performed his work, such performance having been prevented by the contractor. The foreclosure of a lien contemplated by the statute ib an equitable proceeding, in which the powers of the Court as a Court of equity are peculiarly evoked to mould the remedy to suit the circumstance of each case. (Doughty v. Devlin, 1 E. D. Smith, 625 ; Miller v. Moore, Ibid, 739.) In this action the equities are with the plaintiffs. They performed work to the amount of one hundred dollars, and finished their contract by agreement with the assignee of the. contractors, Westervelt & Camp. The assignee succeeded to the estate of the contractors, but took it cum onere, and having completed the work under the original contract, and the owner having detained the amount of the plaintiffs' claim from the contract price which he was to pay, equity demands that it should be applied to the payment of the plaintiffs' claim If the plaintiffs were not rectus in curia, this would not follow, and if there was no validity in the lien they would not be. For the reasons assigned, I think the lien was valid when filed. The objections to the form of the lien were not well taken (Lutz v. Ey, 3 E. D. Smith, 621.) The judgment should be reversed. BERNARD OATES v. MICHAEL H. HALEY, GEORGE H. STONE, and OWEN KENNEY. Where, prior to the filing of a notice claiming a mechanic's lien by a sub-con- tractor, the contractor in good faith and for a full consideration, transferred to a purchaser the right which he might thereafter acquire to any payments under the contract, Held that the purchaser succeeded to the rights of the contractor upon the contract, and that as against such purchaser, the sub- contractor, who knew, at the time of the making of his contract, of the existence of the assignment, acquired no lien. The only exception to the rule that the sub-contractor can acquire no lien, where at the time of filing the notice there is nothing due to the contractor, is the case of an assignment by the contractor of his property in trust for the benefit of his creditors. NEW YOKE DECEMBER, 18C3. 339 Gates v. Haley. No lien attaches by the mere performance of work pursuant to the contract, but it is gained only by filing the notice prescribed by the statute, and until that notice is filed, the contractor, while acting in good faith, may deal with and dispose of the indebtedness which may accrue to him under the con- tract, as he may by law with any other maturing indebtedness. APPEAL by the plaintiff from a judgment at Special Term, confirming the report of the referee. The action was brought by the plaintiff as a sub-contractor, against the defendant Haley as contractor, and Stone as assignee of the contractor and of the owner Kenney. The referee (Hon. Albert Cardozo) found as matters of fact " 1st, That defendant Kenney was the owner 'of two lots known as Nos. 232 and 234 "West Thirty-seventh Street, in the City of New York ; and that about October 23rd, 1860, he entered into an agreement with defendant Haley, by which the latter was to erect for said Kenney certain buildings upon said lots, for which Kenney agreed to pay said Haley (in divers payments) the sum of twenty-six hundred dollars. "That subsequently the plaintiff entered into a verbal agreement with Haley to do certain parts of such buildings and furnish certain materials, fur which Haley agreed to pay Gates the sum of three hundred dollars. That Gates did the work so agreed to be done by him, and which was in accord- ance with the contract between Haley and Kenney, and that such work was completed prior to the sixth day of May, 1861, and that, on said last mentioned day,' there remained due and unpaid to Gates, for such work, the sura of one hundred and forty -six dollars and forty cents; and that, upon that day, Gates tiled in the office of the Clerk of the City and County of New York a notice to effect a mechanic's lien upon said premises for said amount. " 2nd, That on the 22nd day of January, 1861, the defend- ant Haley assigned the payments due and to become due to him, under the contract between him and Kenney, to the defendant Stone, for the purpose, among other things, of securing to Stone the payments for lumber and materials which Stone had agreed to furnish to said Haley ; and that said Stone did furnish lumber and materials to said Hale}', after such assignment, and that such assignment was made without any fraudulent intent whatsoever, and that the amount due to 340 COURT OF COMMON PLEAS. Gates v. Haley. said Stone for snch lumber and materials is unliquidated, and in part at least unpaid. That the plaintiff had not notice of such assignment to said Stone, when he, the said plaintiff, entered into said agreement with defendant Haley ; but that before the plaintiff had done any considerable amount of such work, and furnished any considerable amount of materials, he, said plaintiff, had notice of the assignment to said Stone, and that with such notice thereof he proceeded with the work." Upon the foregoing facts, the referee found and decided as matters of law : " 1st, That the defendant Stone, before said plaintiff filed any lien, became the legal owner, for a valuable consideration, of the payments due and to become due to Haley, under the contract between Kenney and Haley, and that, therefore, the plaintiff cannot have or maintain a lien under the mechanic's lien law. "2nd, That the complaint in this action be dismissed." The referee decided, on the question of costs, that neither party should have costs against the other, except the defend- ant Stone, who should have judgment against the plaintiff for the costs of this action. Judgment having been entered upon this report, the plaintiff appealed to the General Term. William R. Stafford, for appellant. I. The assignment of the payments to become due under the contract, by Hale} r to Stone, did not change the relation existing between the plaintiff and Haley ; nor between Haley and the owner Kenney ; nor affect their obligations in any way. Haley remained, after as before the assignment, the contractor, and responsible to the owner for the performance ; and Stone as assignee was not thereby substituted in the place of Haley ; nor did he contract any liability to perform Haley's contract, or acquire arty right to the moneys to become due on its performance beyond the balance which might remain after the owner had retained enough to discharge the liens of the workmen employed by Haley. (Mandeville v. Reed, 13 Abbott, 179 ; Randolph v. Garvey, 10 Abbott, 179 ; Telfer v. Kierstea,!, 2 Hilton, 577; Smith v. Coe, 2 Hilton, 365.) NEW YOKK DECEMBER, 1863. 311 Gates v. Haley. II. The assignment was of an equitable interest merely, and was subject and subordinate to the rights vested in the mechanic by the lien law. Haley could not assign to Stone any greater rights than he himself had ; and in taking the assignment, Stone placed himself in Haley's shoes, and was bound to take notice of the law by which a specific lien could be created upon the fund assigned in favor of the parties earning it. (Field v. The Mayor, 6 N. Y., 179 ; Carman v. Mclncrow, 2 E. D. Smith, 669 ; Donaldson v. Wood, 22 Wend- ell, 395 ; Munsell v. Lewis, 4 Hill, 635.) HI. The mechanic's inchoate right of lien cannot be defeated by assignments to secure one creditor at the expense of others. The whole object of the statute would thus be evaded, and the lien of the artisan, u more highly favored both in law and equity than any other," (2 Kent, 812,) be utterly destroyed. (Twelves v. Williams, 3 Wharton, 485 ; 'Jackson v. Cummins, 5 Mees. & W., 342 ; Houghton v. Mathews, 3 Bos. & P., 492.) IV. The transfer of the payments to become due, by Haley to Stone, was not upon such an immediate, present considera- tion as to constitute Stone a bonajide purchaser. (Stuyvesant v. Hall, 2 Barb., Ch. 151, 158 ; Truscott v. King, 6 Barb., 346.) At most, Stone became a trustee of the fund for the purpose of paying first those who had earned it and acquired a specific lien upon it, and then himself. Cephas Brainerd, for respondent Stone. I. The defendant Stone, by the assignment from Haley, became absolutely the owner of all the payments accruing under the contract with Kenney, and no claim of a third party, no matter how created, could be interposed to defeat that right. (1.) The cases hold that an assignment of payments under a contemplated contract, takes effect upon the payments becoming due, to the exclusion of a scire facias sued out by a creditor of the contractor after the payments became due. (Field v. The Mayor, <&c., 6 N. Y., 179 ; Crocker v. Whitney, 10 Mass., 316 ; Hartley v. Tapley, 2 Gray, 565 ; Thayer v. Kelley, 2 Wms., [28 Vt.,] 20.) II. The proposition of law sought to be maintained is this : that from the time of making the contract, the sub-contractor 342 COURT OF COMMON PLEAS. Gates v. Haley. has an equitable lien under the law of 1851, which cannot be divested by the act of any third party. True, it is here limited in its application to the acts of the contractor, but if good in its application to this case, it reaches to all others. This cannot be the rule, because, (1.) This right of lien is the creature of statute ; it does not extend by implication beyond the face of the enactments. At common law, a debt of the character sought to be enforced here, was no more favored than any other. Our statute provides that the mechanic " shall, upon filing the notice prescribed in the sixth section hereof, have a. lien for the value," , As executor therefore it was proper for him to allow Harris to finish what he had begun in the testatrix's life time, and he would have had the right to pay Harris out of the per- sonal estate in his hand, and as Larkin died before Harris was paid, the defendant, who has succeeded to the admin- istration of the estate, is liable in his representative charac- ter to Harris' assignor. I cannot see that it makes any difference in this respect that Larkin had a life interest in the estate of which the dwelling house and the other buildings formed a part. The completion of the unfinished building and the repairs were beneficial to the whole estate, and as he did not order the erection of the building or the repairs, but simply finished what the testatrix had begun in her life time, he was not personally liable to the builder for what had been done after her death, but was answerable in his representative character, as executor, upon the whole contract, as well for what was done after as before her death. Judgment affirmed. HAUTERMAN & YAN LATJDEGAM v. FERDINAND BOCK, impleaded with FERDINAND HARTOG and MAURICE YALKENHUYSEN. The right of a shipper to revoke a consignment after the shipment has been made, and a bill of lading signed, by which the goods are deliverable to a consignee by name, but before the bill of lading is delivered to the con- signee, cannot be questioned either on principle or authority. Until the bill of lading is parted with, no title to the property passes from the owner or shipper, nor does any right to the possession or ownership of the goods vest in the consignee. The production of the bills of lading by plaintiffs, the possession of which they had never parted with, proves conclusively that they were the shippers and owners. The bill is regarded as a muniment of title to the property de- scribed in it. Goods in public store awaiting the completion of their entry at the Custom House by the payment of the duties, are to be deemed still in trarmtu. NEW TOEK DECEMBEK, 1859. 367 Hauterman v. Bock. APPEAL by the defendants from a judgment at Trial Term. The case was tried before Daly, First Judge. On the trial it appeared that the plaintiffs shipped at Antwerp, in Belgium, on board the steamer Belgique, nineteen cases of segars, taking from the master of the vessel bills of lading, making the segars deliverable to the de- fendants, Hartog & Yalkenhuysen, at New York, to which port the steamer was bound. Before her arrival, and on June 5, 1857, Hartog & Yalkenhuysen failed, and made an assign- ment for the benefit of their creditors to the defendant Bock. The bills of lading were never transmitted to, and never came to the possession of either of the defendants, but the segars on their arrival were sent by the officers of the Customs to the public store, and the defendant Bock claiming their possession under the assignment, the plaintiffs brought this action for the purpose of having themselves declared the sole owners of and entitled to the segars, notwithstanding such claim. At the trial, the bills of lading being still in the plaintiffs ' possession were by them produced and put in evidence, and they showed in addition that a notice claiming that the segars had been stopped by them in transitu, was served on* the Collector of the Port, and also upon the captain and agent of the steamer, prior to the commencement of this suit. Upon these facts, judgment was given at the Special Term declaring the plaintiffs to be the owners and entitled to the immediate possession of the segars, and that they had a right to stop the same in transitu. H. C. Van Vorstj for appellant. I. The right of stoppage in transitu exists only between vendor and vendee, or between persons standing substantially in that -relation. It is only where the consignor is virtually the vendor that he may exercise the right. (2 Kent's Comm., 702; 1 Parsons on Contr., 481.) (1.) Consignors are not necessarily owners, and proof of the former relation is not proof of the latter. In this case the bills of lading express an unqualified consignment ; and the legal presumption is, that the consignees are the owners. (2.) It was for the plaintiffs to give evidence to rebut this legal presumption. (Everett v. ' 368 , CO [JET OF COMMON PLEAS. Hauterman v. Bock. Saltus, 15 Wend., 474, 20 Wend., 267 ; Angell on Com. Car,, 497, 2d Ed. ; Price v. Powell, 3 N. Y., 322.) II, The right of stoppage in transitu, exists only where goods have been sold upon credit. (2 Kent's Com., 702, and cases there cited.) III. The notice of stoppage in transitu must be made by the agent, general or special, of the owner, or if made by a stranger, there must be a subsequent ratification thereof on the part of the vendor. (1 Parsons on Contr., 478.) Charles L. Spilthorn and John B. Fogarty, for respondents. I. The shippers or consignors of goods have the right previous to delivery, of stoppage in transitu on the happening of the failure or insolvency of consignees. (Abbott on Shipping, Ed. Lond. 1844, 335, 511; Flanders on Shipping, 464,466,519; Dows v. Cobl, 12 Barb., 310, 316.) (1.) The delivery to the . consignee is not complete while the goods are in the Custom House before payment of the duties, or until they are actually in fhe possession, store or place of deposit of the consignees. (Flanders, 528, 529 ; Belgian Code of Commerce, Article 568 ; Abbott, 513, 521.) (2.) The consignors or shippers are pre- sumed prima facie to be the owners of goods consigned by them. (Flanders, 464 ; Abbott, 321.) (3.) The bill of lading is conclusive proof that the respondents were the shippers, and is presumptive proof that they were the owners and consignors. (Abbott, 328 ; Flanders, 450, 456.) II. The exercise of the right of stoppage in transitu by the respondents so far as' was then possible, is proved by the service of notice thereof on the consignee, the master of the vessel and the Collector of the Port. (1 % ) The respondents could not have then exercised their rights in any other manner. (2,) It is sufficient if the party having the right to stop goods in transitu, take such steps as evince his intention to do so ; the law will not require impossibilities. (Abbott, 528 ; Flanders, 541.) (3.) The sale on credit is to be presumed until payment is shown ; the onus prolandi is on the appellants. The re- spondents cannot be required to prove a negative. NEW YOKK DECEMBER, 1859. 369 Hauterman v. Bock. BY THE COURT. HILTON, J. This judgment was clearly right. The defendants failed to show any title whatever 'to the segars, while on the other hand the plaintiffs proved conclusively by the production of the bills of lading, the possession of which they had never parted with, that they were the shippers and owners of the property claimed. The right of a shipper to revoke a consignment, after the shipment has been made and a bill of lading making the goods deliverable to a consignee by name has been signed, and before the bill of lading is delivered to the consignee, can- not be questioned either on principle or authority, because, until the bill of lading is parted with, no title to the property, nor any right to the possession or ownership, passes from the owner or shipper. (Abbott on Shipping, [7 Am. ed.] 433.) By inserting the names of the defendants as consignees, they derived no property in the segars or title or interest in them nor any right to their possession, until effect was given to the act by delivery to them of the bills of lading, by the plain- tiffs or some one on their behalf, and by their authority. The plaintiffs certainly had the right to direct the consignment, and might have named the defendants as consignees in anticipation of making some intended negotiation respecting the segars ; but whether this be so or not it is manifest that they never car- ried into effect their intent at the time of the shipment, by delivering or transmitting the bills of lading to the defendants. (Lickbarrow v. Mason, 2 Term R., 71 ; Hibbert v. Carter, 1 Id. 747 ; Buffington v. Curtis, 15 Mass., 526 ; Low v. Wolf, 8 Pick. 301 ; Allen v. Williams, 12 Id. 297.) It is frequently the case that the name of the consignee is left blank in the bill, and it would be absurd to say when goods are thus shipped that the mere insertion of a name in the blank thus left would divest the owner of his title and control over them. By the law merchant the bill is regarded as a muniment of title to the property described in it, (1 Parsons on Maritime Law, 358,) and when it is in the possession of the consignee he is presumed to be the owner, (Everett v. Saltus, 15 Wend., 474 ; affirmed 20 Wend/ 267,) but no such presumption in favor of the consignee attaches to a bill found in the possession of the shipper. (Ablott on Shipping, [7 Am. Ed.] 435, 609, 654.) 24 370 COURT OF COMMON PLEAS. Hauterman v. Bock. Upon these views it is unnecessary to inquire whether the notice referred to was sufficient to predicate the claim of the plaintiffs to stop the goods. But in any aspect, it seems to me the motive would not be a matter for material consideration, as it appeared at the trial that the goods had not up to that time come to the actual or constructive possession of the de- fendants. As is said by Chancellor Walworth in Mottratn v. Heyer, (5 Denio, 631 ) : " The removal of the goods from the "vessel to the public store by the Custom House Officers " until the consignee should entitle the owners to claim the " possession and disposition of the goods by completing their " entry by the payment of the duties, was merely substituting " the public store in the place of the vessel as a place of deposit " in the transmission of the goods to their place of destina- " tion." Here there was no evidence that the defendants had ever entered the goods at the Custom House, or paid any duties upon them. Therefore the public store was to be regarded as a place of deposit connected with the transmission, and it is well settled that as to goods thus deposited the right of a con- signor to stop in transitu attaches. (Mottram v. Heyer, supra., Buckley v. fumiss, 15 Wend. 137 ; Cornell v. Hitchcock, 23 Id. 611 ; Abbott on Shipping [7 Am. Ed.] 664 ; Northey v. field, 2 Esp., K P. C. 613 ; 1. Parson's Maritime Law. 352.) The consignee having no right to the goods until he pays the duties, it cannot be said when such payment has not been made, that he has ever acquired either actual or constructive possession of them. Judgment affirmed. NEW TOKK JULY, 1859. 371 Bedford v. Terhune. GUNNING S. BEDFORD v. HENET TEEHUNE and another. An action for use and occupation of premises cannot be maintained against a party in occupation when it appears that there is a lease of the premises outstanding in a third person. Where a lease is outstanding, and a party other than the lessee is in posses- sion, it is presumed that he is the assignee of the lease, unless it is shown that he holds under a demise from the lessee ; and as assignee he is not lia- ble in an action for use and occupation, as his liability is founded upon privity of estate, and the action must be upon the lease. A surrender of the lease before the expiration of the term, and that the party in occupation afterwards held under a distinct and independent agreement with the lessor, may however be implied from circumstances. The fact that the lessee had failed, that the defendant succeeded to the same business which the lessee had previously carried on in the same premises ; that when the lessor was advised of these facts, that the defendants gave him their assurance that he need feel no concern for his rent, that they con- tinued "thereafter to pay the rent to him and not to the lessee, and that they applied to hire the premises from the lessor for another year, telling him they were among his best tenants, and had always paid their rent punctual- ly Held, sufficient to warrant a jury in finding in an action for use and oc- cupation, that there was a change of tenancy by the consent of all parties. APPEAL by defendants from a judgment of the Marine Conrt at General Term. The plaintiff, as owner of certain premises, brought an ac- tion for their use and occupation, against the defendants as his tenants. The defendants denied that they ever occupied the premises as tenants of the plaintiff, and it appeared on the trial that on or about the 1st day of August, 1855, plaintiff leased the premises mentioned in the complaint to the firm of E. & A. Ingraham & Co., for the term of two years and nine months, from the first day of August, 1855. The defendants claimed that they hired, used, and occupied the premises solely as the /tenants of said firm of E. & A. Ingraham & Co., and of no other person whomsoever, and that the plaintiff had never re- cognized the defendants as his tenants, or in any manner ac- cepted a surrender of the lease of said premises to said E. & A. In grah -m & Co. 372 COURT OF COMMON PLEAS. Bedford v. Terhune. It appeared that Ingraham & Co. failed before the expira- tion of the lease, and the plaintiff then called at the premises, and the defendants, who were in occupation, told him that he need not fear or be concerned about the rent ; that they in- tended to occupy the store for the same, business. The de- fendants did continue to occupy the store, and paid the rent, requiring receipts therefor in the following form YOEK, March 2, 1858. " Received of Terhune & Edwards, for account of E. & A. Ingraham & Co., $450 for one quarter's rent, due 1st day of February, 1858. G. S. BEDFORD, "Per Peter A. H. Jackson, Agt." The plaintiff's agent had a conversation with the defendants in March in regard to hiring the premises for another year, when the defendants said they ought to have them for the year following, as they were among the plaintiff's best tenants, and had always paid punctually. The defendant's counsel moved to dismiss the complaint, on the grounds (1) that there was no contract between plaintiff and defendants ; (2) that nothing had been shown by which the relation of landlord and tenant could be inferred ; and (3) that any presumption arising from the occupation of the premises was rebutted by proof of hiring. The Court refused to dismiss, and charged the jury as follows : " If the jury believe the parties made the agreement as sworn to by the witness, and entered upon it at the time it was made, and carried it out up to this last quarter by the one party paying the rent every quarter, and occupying the premises, and the other party receiving the rent each quarter, then I charge you that in law the defendants are liable for this rent. But if you believe that no such agreement or under- standing was made or had, then the defendants are not liable." The jury found for the plaintiff. The General Term of the Marine Court affirmed the judgment, and the defendants ap- pealed to this Court. Albert Mathews, for appellants. Reynolds & Van Schaick, for respondent. NEW YORK JULY, 1859. 373 Bedford v. Terhune. BY THE COURT. DALY, F. J. The action was for use and occupation ; the plaintiff averring that the defendants occupied the premises as his tenants, and the defendants answering that they hired and occupied them as tenants of E. A. Ingraham & Co. Upon the trial.it was shown that the plaintiff demised the premises by a written lease to E. A. Ingraham & Co. for two years and nine months from the 1st of August, 1855, and a series of receipts were produced signed by the plaintiff's agent, acknowledging the receipt of rent from the defendants for the account of E. A. Ingraham & Co., extending from the 1st of May, 1855, to the 2d of March, 1858. The action was for the quarter's rent from 1st of February to the 1st of May, 1858. The plaintiff having heard that E. A. Ingraham & Co. had failed, went to the premises and saw the defendants, who told him that he need not fear or be concerned about the rent that they intended to occupy the store for the same business. "When this interview took place did not appear, but the de- fendants continued to occupy the premises thereafter, and paid the rent, the receipts for the rent being written according to their dictation. In March, 1858, the plaintiff's agent had a conversation with them about hiring the premises for a year afrer the 1st of May, 1858, when they said that they ought to have them for the following year, a they were among the plaintiffs lest tenants and had always paid punctually. When the rent was demanded for the last quarter, the defendants said that they had paid money enough on account of E. A. In- graham & Co., and should pay no more; that E. A. Ingraham & Co. owed them largely. Upon this state of facts, the Judge charged the jury substantially, that if the defendants made the agreement with the plaintiff inferable from the above state of facts, and carried it out by occupying the premises and paying the rent up to the commencement of the last quarter, the plain- tiff receiving the rent from them each quarter, that the defend- ants were liable to the plaintiffs for the last quarter's rent ; to which instruction the defendants excepted, and the jury found for the plaintiff. The defendants also asked, for a dismissal of the complaint upon the grounds that there was nothing in the case from which the relation of landlord and tenant or any contract between the plaintiff and tha defendant could be in- 374: COUKT OF COMMON PLEAS. Bedford v. Terhune. f erred ; that the presumption arising from occupation was rebutted by the proof of hiring. The application was denied. There was sufficient in the case to submit to the jury the question, whether the occupation of the premises by the defendants was under an agreement made by them with the plaintiff, and though that question was not put to the jury as clearly or as intelligently as it might have been, yet it is apparent from the language used by the Judge that he meant to and did, in effect, leave that question to them. All that was offered with a view of showing that the defend- ants occupied as under tenants of E. A. Ingraham & Co., after the failure of that firm, was the receipt given by the plaintiff's agent under the defendants' dictation, acknowledging the receipt of rent for account of E. A. Ingraham & Co. This was a circumstance, but not a controlling one. It was to be weighed as against the other evidence, and left to the j.ury for them to determine what conclusion was to be arrived at from the whole of the evidence taken together, and a question of fact which upon such evidence might have been determined either way, was one in respect to which the finding of a jury is conclusive. The fact that the defendants succeeded to the business of E. A. Jngraham & Co.. or carried on a similar business in the same premises after the failure of that firm, that at the outset of their occupation or when the plaintiff was first advised that they meant so to occupy and carry on the same business, they gave him their assurance that he need feel no concern about his rent ; the fact that they paid their rent not to E. A. Ingra- ham & Co., but to the plaintiff as long as they continued to pay it, and that they wanted to hire the store for another year, urging as a reason to induce the plaintiff to let it to them, that they were among his best tenants and had always paid their rent punctually, were circumstances sufficient to support a finding by the jury that they held under a distinct and inde- pendent agreement with the plaintiff, and not as tenants under a demise from E. A. Ingraham & Co., notwithstanding the form in which the receipts were drawn. The lease to E. A. Ingraham & Co. embraced the period during which the defendants occupied, and where a lease is NEW YORK JULY, 1859. 375 Bedford v. Terhune. outstanding and a party other than the lessee is in possession, the presumption is that he is the assignee of the lease, which may be overcome, however, by showing that he holds under a demise from the lessee. (Armstrong v. Wheeler, 9 Cow., 88 ; Williams v. Woodward, 2 Wend., 487 ; Quackenboss v. Clark, 12 Id., 555.) If the party in occupation must be regarded as the assignee of the lease, the landlord cannot sue him for use and occupation, as his liability to the landlord for the rent is founded upon privity of estate, and the action must be upon the lease. (McFarlan v. Watson, 3 Comst., 286.) If there was nothing in the case but the occupation of the premises by the defendants, they would be regarded as assignees of the outstanding term demised by the plaintiff to E. A. Ingraham & Co., and the plaintiff could not sustain the present action for use and occupation. But a surrender of the lease with the consent of the landlord before the expiration of the term may be inferred from circumstances, and a lease by the landlord to a third party with the consent of the former tenant, operates as a surrender of the previous lease and estops the landlord from claiming any rent thereafter under that leaae. (Schieffiin v. Carpenter, 15 Wend., 400; Smith v. Nivw, 2 Barb., 180.) In this case there was evidence to warrant the conclusion of a change of tenancy with the consent of all parties, and the acceptance of the defendants by the plaintiff as original tenants under an agreement by them to pay rent to the plaintiff for the use and occupation of the premises, which, under the authorities, was sufficient to entitle him to maintain this action. (Mat- thews v. Sloan, 8 Taunt., 270 ; Drury Lane Company v. Chap- man, 1 Carr. & Kirwan, 14.) The judgment should be affirmed. HILTON, J. I concur. BRADY, J. In this case the defendants claimed to be the tenants of E. & A. Ingraham & Co., but on the trial no evi- dence of such a relation was given, except the receipts taken by the defendants on the payment of rent to the agent of the plaintiff, and in which the amounts .paid were stated to be re- 3T6 COURT OF COMMON PLEAS. Bedford v. Terhune. ceived for account of E. & A. Ingraham & Co. Why the moneys were paid by the defendants does not appear ; whether as agents, attorney in fact or as assignees of the term, is not shown. The chief feature of the defendants' defence is for this reason wanting. The receipts for the reason stated are vague and unsatisfactory, and would not justify the inference that the money paid was paid by the defendants as under tenants, more particularly when they said after the failure of E. & A. Ingraham & Co. that they intended to occupy the store for the same business carried on by that firm. In the absence of this proof there is no evidence showing that the defendants are liable to E. & A. Ingraham & Co. under any hiring from them, a legal conclusion which if it existed would in my opinion, require in this case the application of other legal prin- ciples than those upon which it must be decided. The plain- tiff finding the defendants in 1 possession as detailed by the witness Jackson, and governed by the details of the interview which then took place, with the other circumstances developed, I think the hiring from or occupation under the plaintiff was a question of fact which could be submitted with propriety to the jury as was done here. I do not design to add anything on this branch of the case to the views expressed by Judge Daly, in which I concur. I think the judgment should be affirmed. NEW- YORK OCTOBER, 1860. 377 Harriott v. N. J. R R & T. Co. REUBEN F. HARRIOTT v. THE NEW JERSEY EAILROAD AND TRANSPORTATION COMPANY. Where the complaint presents a prima fade case of jurisdiction, and the question is not raised by the issues, but the plaintiff, on the trial, admits the fact which shows the want of jurisdiction, his non-residence, and the complaint is dismissed on that ground; Held, such an adjudication of the action as will entitle the defendant to a judgment for costs. The rule that costs will not be allowed on the dismissal of a complaint for want of jurisdiction, applies only in cases where the want of jurisdiction appears on the face of the summons or complaint, or the Court is called upon to adjudicate the question on plea or demurrer. (Reversing the decision of the Special Term in Harriott v. N. J. R. B. &. T. Go., 8 Abbotts' Pr. R, 284 ; following McMahon v. Mutual Benefit Ins. Co., 3 Bosw., 644 ; and Gormly v. Mclntosh, 22 Barb., 271.) APPEAL by the plaintiff from an order at Special Term, set- ting aside two judgments for costs awarded to the defendant. The action was brought to recover damages against the defendants, a foreign corporation, for negligently and care- lessly killing the plaintiff's horse in New Jersey. The plaintiff was a non-resident, but this fact did not appear in the pleadings. After issue joined the defendants obtained an order to com- pel plaintiff to file security for costs. On the trial of the cause, the plaintiff admitting that he was a non-resident, the defendant moved to dismiss the complaint on the ground that the Court had no jurisdiction. The Court (DALY, F. J.) granted the motion, and judgment was ordered for the defendants. The plaintiff appealed from this judgment as a whole, but taking no exception to that part of it which allowed costs. On the appeal the judgment was affirmed, and entered up with the additional costs of appeal. (The opinion of the General Term on appeal will be found reported in 8 Abbotts' Pr. R., 284.) The plaintiff then moved to set aside the allowance of costs and the judgments on the ground that the Court having no 378 COURT OF COMMON PLEAS. Harriott v. N. J. R. R & T. Co. jurisdiction of the subject matter of the suit, could not award costs. The Court at Special Term, (HILTON J.) granted the motion, and ordered the judgments to be set aside. (The opinion of Judge Hilton is reported in 8 Abbotts' Pr. R., 293.) From this order, the defendants then appealed to the Gen- eral Term. Edgar S. Van Winkle, for appellants. .James Gerard and E. Yenni, for respondents. BEADY J. The defendants, though a foreign corporation could be sued in this Court by a resident of the State, for any cause of action, and- by a plaintiff not a resident of the State, when the cause of action arose or the subject of the action was situate within this State. (Code, 427.) The plaintiff being a resident of New Jersey, sued the defendants in this Court upon a cause of action arising in New Jersey, and when the fact of his residence in that State was disclosed at the commencement of the trial, the complaint was dismissed for want of jurisdiction. The plaintiff selected the forum, and the defendants were obliged to appear and defend, it not appearing by the complaint that the plaintiff was not a resi- dent of this State. The question presented by these facts is whether the defendants are entitled to costs. The Superior Court of this city has considered and determined the question in favor of the right, and for reasons which are satisfactory to my mind. (McMahon v. Mutual Benefit Life Insurance Co., 3 Bosw., 644.) The case of Gormly v. Mclntosh, (22 Barb., 271,) upon which the respondent chiefly relies, differs from the one in hand. The want of jurisdiction in the County Court was " apparent upon the face of the summons and complaint," and the rule in regard to costs in such cases, is not the same as that which governs in cases where the want of jurisdiction does not appear. Justice SMITH, in his opinion in that case, says " the want of jurisdiction in these cases of the subject matter being apparent on the face of the summons and complaint, the County Court should have dismissed the suit without costs, in conformity with the rules so laid down by Judge COWEN in Malone v. Clark, (2 Hill, 657,) and it follows that NEW, YOKE OCTOBER, 1860. 379 Harriott v. N. J. R R & T. Co. no costs can be recovered by the appellants in the County Court, and the allowance on taxation must be reversed. This rule in respect to costs cannot apply in cases where the want of jurisdiction does not appear upon the face of the proceedings, but it is presented by plea on demurrer, and the Court is called to adjudicate upon the question." When however the question is presented in that mode, the complaint showing a prima facie case, the prevailing party is entitled to costs. Justice SMITH cites several cases in support of the doctrine stated. The complaint in this action presented a prima facie case of jurisdiction, and the Court could not have dismissed the action upon the complaint alone. The defendants by answer- ing did not waive the objection to the jurisdiction (Code, 148) which could be urged upon the trial in the nature of either plea or demurrer, and on this case upon proof of the fact that the plaintiff was a non-resident of this State. The admission of the fact mentioned only relieved the defendants from the necessity of proving it, but when admitted it became necessary for the Court to adjudicate upon the question, and costs fpllowed as already shown. If the defendants had set up by plea or answer that the plaintiff was a non-resident, it is clear on the authority of Gormly v. Mclntosh, and cases cited, that the defendants would be entitled to costs, and as they were not obliged to set it up, but could prove it by way of answer or demurrer at the trial, the result must be the same. If the plaintiff had not admitted the fact, he could have gone in with his proofs and compelled the defendants to prove the fact of his non-residence in support of their objection that the Court had no jurisdiction. The burden of proof was upon them. This case is therefore to all intents and purposes, an adjudication upon the question of the plaintiff's residence. The plaintiff is not the prevailing party, and such being the fact, as shown by the opinion of Justices BOSWOKTH and WOODRUFF in McMahon v. Mutual Benefit Life Insurance Co., supra, the defendants are entitled to costs. I think the order of the Special Term should be reversed with ten dollars costs. DALY, F. J., concurred. HILTON, J., dissented. 380 COURT OF COMMON PLEAS. Greaton v. Smith. JOHN W. GREATON v. GEORGE D. SMITH and JOHN B. McPHERSON. Where a tenant remains in possession after the expiration of his term, upon the assurance of the landlord that he will give _ him a lease for ten years at a stipulated rent, and quits the premises upon the landlord refusing to do so, there is no implied agreement for the payment of rent during the period of occupation. There must be some act of the parties from which the law implies an agree- ment to occupy for a year, to create a yearly tenancy, and unless such acts can be shown, the law will not make a contract for them. The occupant paid rent for the first quarter at the rate to be fixed by the promised lease, and left before the expiration of next quarter upon the landlord putting up a bill announcing that the premises were to let, and on his refusing to execute and deliver the lease ; Held, the occupant was not bound to pay rent for the portion of the quarter which he had occupied. There was not, in such a case, that holding over which will create a tenancy from year to year, or that agreement for occupation which would be valid by statute until the 1st of May following, or which would entitle the land lord under the statute, to a reasonable satisfaction for use and occupation. Although such parol agreement was void by the statute of frauds, the plaintiff is not entitled thereby to any advantage. The law will leave him to the consequences of an act, which, if injurious, he might have avoided. The question to a witness, for the purpose of impeaching his credibility, whether he had not been expelled from an Odd Fellows' lodge ; Held, prop- erly excluded, as an affirmative answer would not affect the credibility of the witness. An offer to show that the witness had been convicted and imprisoned for gross intoxication on a certain day, Held, properly excluded, as it was an effort to impeach a witness by proof of a particular offence. The cross-examination of a witness, as to a conversation had by him, must be limited to that particular subject of the conversation which was brought out on the direct examination. The whole conversation cannot be given on the cross-examination. This action was trie<} before DALY, F. J., and a jury. The action was to recover rent from August 1, 1854, to May 1, 1855, of premises No. 23 Maiden Lane. The defendants set up an eviction. It appeared in evidence on the trial, that the defendants had been joint tenants of the plaintiff prior to May 1, 1854. NEW YORK MAT, 1860. 381 Greaton v. Smith. Shortly before that day, they made a parol agreement with the plaintiff by which it was agreed that defendants should continue in possession of the premises under a lease, for ten years, which the plaintiff agreed to have prepared. The de- fendants, under such agreement, continued in possession after May 1, 1854, and paid rent for the quarter ending August 1, 1854. The plaintiff delayed giving a lease until before the 1st of November ; he refused to give any lease, and refused to per- mit defendants to remain in the premises under the agreement. Plaintiff put a bill up advertising the premises to let ; and the defendants quit and surrendered the premises on the last of October. The various exceptions taken at the trial are fully stated in the opinion of the Court. The presiding Judge charged the jury, among other things : " That if the plaintiff suffered the defendants to go into pos- session of the premises under a verbal agreement that they should have a lease for ten years, and then refused to give them such a lease as he had agreed to give, they were justified in abandoning them at the time they did, and are not liable for any rent for the period during which they actually occupied the premises. " That if the plaintiff delayed offering the lease until just be- fore the defendants left the premises, and they refused, and the delay was occasioned by his own act, then the defendants were entitled to abandon the premises, and are not liable for any rent from the time they occupied." The jury returned a verdict in favor of the defendants ; whereupon the judge, under the provisions of 265 of the Code, directed the exceptions taken to be heard in the first instance at a General Term, and the entry of judgment to be in the mean time suspended. The plaintiff appealed to the General Term. Albert Mathews, for appellants. I. The pleadings admit, and the evidence establishes, that the defendants held over by permission of the landlord, and paid rent for the first quarter, and agreed to pay for the remaining three quarters at the rate of four hundred dollars per annum. 3S2 COURT OF COMMON PLEAS. Greaton v. Smith. (1.) The pleadings conld not be contradicted. ( Wood v. Whit- ing, 21 Barb., 190 ; Miller v. Moore, 1 E. D. Smith, 739. (2.) By statute there was a lease till May 1st, 1855. (1 Rev. Stat., 744, 1.) (3.) By common law there was a lease from year to year ; i. ., May, 1854, to May, 1855. (Right v. Darby, 1 Term R., 862 ; Jackson v. Salmon, 4: Wend., 327 ; Webber v. Sherman, 3 Hill, 517 ; Conway v. Starkwether, 1 Denio R., 113; Wiggin v. Woodruff, 11 Leg. Obs., 89; Holsman v. Abrams, 2 Duer's Rep., 446 ; McDowall v. Simpson, 3 Watts, 135.) (4.) By statute the plaintiff may recover reasonable sat- isfaction for the year. (1 Rev. Stat., 748, 26 ; Peckham v. Leary, 6 Duer, 492.) (5.) By common law likewise. (Eppes JExrs. v. Cole, 4 Henn. & Mumf., 161.) (6.) The landlord alone had an option to terminate the tenancy after the new year be- gan, and the tenants remained in possession. (Abeel v. Radr cliff, 15 Johns., 505; Anderson v. Prindle, 23 Wend., 618; Sherwood v. Phillips, 13 Wend., 479 ; Jackson v. Salmon, 4 Wend., 327 ; Rowan v. Lyttle, 11 Wend., 620 ; Webber v. Sher- man, 3 Hill, 547 ; Conway v. Starkwether, 1 Denio, 113.) II. The evidence, construed most adversely to the plaintiff, proved the defendants to be tenants holding over after the ex- piration of their term, under a parol agreement for a lease for ten years, which, was void, and about the terms of which the parties could not agree. Under this state of facts, they used and occupied the premises six months, and paid one quarter's rent. They also agreed to pay the remainder of the annual rent, and acquiesced in being treated as tenants for the year. The plaintiffs were, therefore, entitled to recover. (1.) If the agreement had been valid, and the parties never performed it. still the defendants would have been liable as tenants fo year. (Doe v. Bell, 5 Term Rep., 471 ; Clayton v. Blakely Term R., 3 ; Schuyler v. Leggett, 2 Co wen R., 660 ; People \ . Rickart, 8 Cowen, 226 ; Little v. Martin, 3 Wend., 219 ; Hols- man v. Abr*ms, 2 Duer R., 435 ; JBraythwaite v. Hitchcock, 10 Mees & Wels., 494 ; Cox v. Bent, 5 Bing., 185 ; Thompson v. Amey, 12 Adol. & Ell., 476 ; Mann v. Lovejoy, 1 Ryan aid by the defendant in case of a violation by him of an agreement, under, seal, entered into between the parties, whereby the defendant in consideration of $3,000, " the receipt whereof is hereby acknowledged " sold and assigned to the plaintiff all his stock in trade, good will of business, &c., and covenanted under the penalty of forfeiture of $2,000, not to resume, carry on, or conduct in the City of New York, the business of a composition onmment manufacturer. The answer averred that $2,000 was the real consideration 470 COURT OF COMMON PLEAS. Baker v. Council. money of the agreement, and'denied that the plaintiff had Buf- fered damages. On the trial, the defendant's counsel offered to prove that the sum of three thousand dollars was never paid as considera- tion of the agreement by the plaintiff to the defendant. The plaintiff objecting, the objection was sustained. The Court directed the jury to find a verdict for plaintiff, which they did for two thousand four hundred and forty-three dollars. The Court allowed the defendant twenty days to make a case and bill of exceptions, tlxe argument thereon to be heard in the first instance by the Court at the General Term. George Carpenter, for appellant. George W. Paine, for respondent. BY THE COURT. DALY, F. J. The defendant averred in his answer that but two thousand dollars of the three thousand acknowledged in the agreement to have been received had been paid, and upon the trial offered to show that the three thousand dollars were never paid by the defendant. This I think he had a right to show. Although an instrument under seal acknowledges .that the consideration expressed in it has been received, parol evidence is admissible to show that it has not been paid, so far as the question may affect the ultimate right of the parties, the only restriction that has been imposed being that such evidence shall not have the effect of defeating the instrument so as to render it void for the want of any consid- eration (Shephard v. Little, 14 Johns., 210 ; McCrea v. Pur- mort, 16 "Wend., 460 ; Bingham v. Weidermax, 1 N. Y. R. [1 Comst.], 509). Such could not be the effect of the evidence here, as the answer admitted that two thousand dollars had been paid, and the defendant simply sought by his answer to avail himself, in the action, of the defence that he had a subsisting claim against the plaintiff under the same contract to the extent of one thousand dollars. If this one thousand dollars had not been paid, the defendant could maintain an action to recover it, notwithstanding the acknowledgment in the agreement th&t it had been received (Bowen v. Bell, 20 Johns., 338). It was, in the language of the Code, a cause of action arising YOEK JULY, 1865. 471 Stuart v. The Columbian Fire Insurance Company. ont of the contract, for the breach of which in another particu- lar by the defendant, the plaintiff brought this action, and it was therefore a good counter-claim which the defendant might offset against the amount of the stipulated damages liquidated and fixed by the agreement. The offer was made in a way that might well, and probably did, mislead the Court. It should have been an offer to show that one thousand dollars of the consideration money had not been paid, which the defendant claimed to have deducted from. the two thousand dollars stipulated damages, and had it been thus intelligibly submitted, the Judge would, no doubt, have re- ceived the evidence. If that had been done, and the Judge's at- tention called to the averment in the defendant's answer, he would have seen that the defendant was entitled, if he proved the fact, to have the one thousand dollars allowed him in this action. Upon all the other questions the ruling of the Judge was correct, but unless the plaintiff agrees to reduce the recovery by remitting the one thousand dollars, there must be a new trial. Ordered accordingly. JOSEPH STUART and JAMES STUART v. THE COLUMBIAN FIRE INSURANCE COMPANY. A clause in an agreement is to be construed most strictly against the party for whose benefit it is inserted. Hence, when an open policy contained a clause limiting the insurer's liability to the deficiency arising on the payment of any other policy of prior date, Held, that the limitation did not apply to poods in another policy, intermediate the date of the defendant's policy and their inscription thereon. APPEAL by the defendants from a judgment entered on the report of a referee. The action was brought upon an open policy of insurance to recover the sum of five thousand and forty dollars for the loss 472 COURT OF COMMON PLEAS. Stuart v. The Columbian Fire Insurance Company. of twenty-one bales of cotton, consigned at Louisville, Kj., by Garvin, Bell & Co., to the plaintiffs at New York. It appeared upon the trial before the referee, that the plain- tiffs, for some time previous to October 28, 1862, had made loans and advances to Garvin, Bell & Co., of Louisville, Ken- tucky ; and on that day, and on November 3, 1862, Garvin, Bell & Co. owed plaintiffs on account with them, fourteen thousand five hundred dollars, not counting interest. On Oc- tober 28, 1862, William Garvin, of Garvin, Bell & Co., wrote to plaintiffs a letter of that date, informing them that he had shipped to plaintiffs twenty-one bales of cotton to be sold by them, the proceeds to be-applied to the credit of Garvin, Bell & Co., in account with them, the plaintiffs. The plaintiffs had previously effected an insurance with the defendants on the ship Dreadnought, at and from Liverpool to New York, on an open marine policy to cover war risk only, with the various clauses usual in American policies of marine insurance. The policy was dated October 18, 1862, and this policy being in full force, plaintiffs, on November 3, 1862, applied to defendants to insure the twenty-one bales of cotton, on its v way to them from Louisville to New York, and for which they had received bills of feding. The defendants accepted the application, and thereupon wrote on the second page of said open marine policy on the ship Dreadnought^ the following memorandum : O November 3d, 1862. 12,445. " In consideration of a premium, sixty-three dollars, it is " hereby agreed that this policy shall cover five thousand and " forty dollars on twenty-one bales of S. & Co.'s cotton, at and " from Columbus to Cairo per steamer Clara Bell y and thence " by R. R. to New York, on the same conditions as per within " policy and val. a $240 per bale. $5,040 a l p. c. $63 ;" and also indorsed upon the back of the policy : " Nov. 2, '62.- St'r Clara Bell, 12,445. Columbus to Cairo " to New York, $5,040 a 1 per cent, $63." The cotton was shipped on October 24th, at Columbus for Cairo; left Cairo by Illinois Central R. R. for New York on October 29th ; and was burnt on the next day on the railroad, proving a total loss. NEW YORK FEBRUARY, 1865. 473 Stuart v. The Columbian Fire Insurance Company. The firm of Garvin, Bell & Co., on the 29th. of October, at Louisville, Ky., applied to the Franklin Insurance Company of that city for insurance on the cotton, and the Company agreed to take the risk conditionally, that if the cotton was covered by the open policy of the plaintiifs, in New York (as Garvin, Bell & Co. informed the Company it probably was), the agreement was not to be binding on the Franklin Insur- ance Company. Subsequently, on the 3d day of November, Garvin, Bell & Co., notified the Franklin Insurance Company that the cotton was covered by the policy in suit, and the Company thereupon erased the entry made in their cargo reg- ister. No policy was ever issued to Garvin, Bell & Co. The defendants rested their defence on the following clause in the original policy of insurance, dated October 18, which clause is as follows : " Provided, always, and it is hereby further agreed as follows, that if the said assured shall have made any other assurance on the premises aforesaid, prior in date to this policy, then the said Columbian Insurance Company shall be answerable only for so much as the amount of such prior insurance may be deficient toward fully covering the ^premises hereby assured." Defendants claimed, that although the policy of defendants did cover this cotton, yet that the cotton had been previously insured by the Franklin Insurance Company, that all the de- fendants .would be called on to pay was a contribution, or so much as the amount of such prior insurance might be deficient, and that as the prior insurance fully covered the declared value of the cotton, there was no deficiency. The referee so found, and the plaintiffs appealed to the Gen- eral Term. Richard O* Gorman, for appellant. A. C. Morris, for respondent. BY THE COURT. CARDOZO, J. The insurance effected by Garvin, Bell & Co., in Louisville, was not prior to the date of the policy in suit ; and the clause in question in terms, cer- tainly, only refers to insurance " prior in date to this policy." The defence is technical, and should not be favored, but should be strictly construed : the clause respecting prior insiir- 474: COURT OF COMMON PLEAS. Rittenhouse v. The Independent Line of Telegraph. ance being inserted for the benefit of the defendants, who, had they intended to make this policy, so. far as the cotton in ques- tion was concerned, bear date November 3, instead of, as the language implies, its actual date, October 18th, could have rendered the matter clear by proper stipulations. The insur- ance effected by Messrs. Garvin, Bell & Co., in the Franklin Insurance Company was on the 29th of October, 1862, while the policy in part bears date, eleven days earlier, on the 18th of October, 1862. The memorandum made on the 3d of Nov- ember, incorporated nothing into the policy, except the addi- tional risk which the assurers assumed. They did not make a new policy, but agreed that the then existing policy, dated October 18th, 1861, should cover the cotton in question. It was simply an agreement made on the 3d of November, 1862, that a contract dated October 18, 1862, should be ex- tended as to its subject matter, so as to apply to and cover other property than that which had originally been mentioned in it. The policy held by the plaintiffs, not being prior to the in- surance made in Louisville, covered the interest of the Messrs. Stuart, without it being specified, and whether that interest^ was as owners or as consignees. I think the referee erred in dismissing the complaint, and that the judgment should be reversed and a new trial ordered; costs to abide the event. CHAKLES E. EITTENHOUSE and others v. THE INDEPENDENT LINE OF TELEGRAPH. The defendants, a telegraph company, received from the plaintiffs, at Washing- ton, D. C., a dispatch to be transmitted over its line to the plaintiffs agents in New York, directing them to sell for plaintiffs their " Southern Michigan be- fore board : buy five Hudson at board." The dispatch, as received by the plain- tiffs' agents, directed them to sell their Southern Michigan stock before board, and " buy five hundred at board." The agents sold the plaintiffs' Southern NEW YORK JULY, 1865. 475 Rittenhouse v. The Independent Line of Telegraph. Michigan stock before the board, and, at the beard, purchased fire hundred shares of the same stock. The plaintiffs on being apprised by telegraph the same day of the transaction, sent another dispatch, correcting the error, and repeating the first order. This dispatch being received after the ad- journment of the board of brokers, the agents sold on the street the five hundred shares of Michigan Southern R. R. stock, purchased by them, at a loss of four hundred and seventy-five dollars, and purchased, at the lowest rice, five hundred shares of the Hudson River R. R. stock, which was, for the whole number of shares purchased, one thousand three hundred and seventy-fiv^ dollars more than the same could have been bought for at the board of brokers that day. Held, that the plaintiffs were entitled to re- cover of the defendants the difference between the price at which the five hundred shares of the Hudson River R. R. stock could have been bought at the board of brokers, and the lowest price for which the same could have been, and was, bought after the adjournment of the board, on the receipt of the corrected despatch. Held, also, that as the language used hi the dispatch, however indefinite to others, was intelligible to the agents, they were not charged with the duty of making further inquiry before acting upon it Held, also, that defendant having placed it beyond the power of the plain tiffs' agents to make the purchase of the five hundred shares of the Hudson River R R stock at the board of brokers, it could not avail itself of the fact that the pur- chase was made on the street after the adjournment of the board, it not ap- pearing that it was injured by the circumstance. Held, further, that the plaintiffs were not entitled to recover the difference of four hundred and seventy-five dollars on the sale of the five hundred shares of Michigan Southern R. R. stock. In legal effect, it was purchased on the defendant's account, and could not be sold without notice to the defendant. APPEAL by the defendants from a judgment at Special Term. The case was tried before DALY, J., without a jury, by con- sent of parties. The action was brought to recover of the defendant, a corpora- tion having and controlling a line of telegraph between the city of New York and "Washington, D. C., damages for a mistake in a message transmitted over the defendant's line, by the plaintiffi, at Washington, to their brokers, Drexel, Winthrop & Co., at New York. It was shown on the trial, that on the 14th day of October, 1863, the plaintiffs delivered to the defendant at its office in Washington, the following message, directed to Drexel, Win- throp & Co : a If we have any old Southern on hand, sell same before board a buy five Hudson at board quote price." " RITTENHOUSE, FANT & Co." 476 COURT OF COMMON PLEAS. Rittenhouse v. The Independent Line of Telegraph. The message received by Drexel, Winthrop & Cb., was as fol- lows: " If we have any old Southern on hand, sell same before board " buy five hundred before board quote price. " RITTENHOUSE, FANT & Co." By an understanding between the plaintiffs and their brokers, the words "old Southern" in the message meant Michigan Southern Railroad stock. The words " five Hudson " meant five hundred shares of Hudson River Railroad stock ; and the word " board " meant the stockbrokers' board in New York. The agents, without suspicion of the error in the telegram, sold all the Michigan Southern of the plaintiffs' before the morning board, and purchased five hundred shares of the Michigan Southern stock at the board for the plaintiffs, at forty-four thousand three hundred and thirty-seven dollars and fifty cents, that being the lowest price for which they could be bought. Immediately after the purchase, the brokers notified the plain- tiff by telegraph, of the purchase, and price. The same day. the plaintiffs directed their brokers, by telegraph, to cancel the erroneous sale and purchase of the Michigan Southern stock, and to purchase the five hundred shares of Hudson River stock. The message was received late in the day, and after the board adjourned. The brokers sold on the street, the same afternoon, the five hundred shares of Michigan Southern, for the best price they could obtain, forty-three thousand eight hundred and sixty- two dollars and fifty cents, being four hundred and seventy dollars less than they had to pay for them at the board. They also purchased on the street, five hundred shares of the Hudson River Railroad stock, as directed by the plaintiffs, .at one hun- dred and thirty-nine dollars and fifty cents per share, that being the lowest price at which they could be obtained. The lowest price at which the same stock was sold at the morning board on that day was one hundred and thirty-six dollars per share, and the average price was one hundred and thirty-six dollars and seventy-five cents; making a difference between the lowest price at the morning board, and the price paid by the plaintiffs' brokers, on the whole five hundred shares, of one thousand seven hundred and fifty dollars, and a difference be- NEW YORK JULY, 1861. 477 Rittenhouse v. The Independent Line of Telegraph. tween the average price at the morning board, and the price paid, of one thousand three hundred and seventy-five dollars. The broker testified that had the correct despatch been re- ceived bj him, he would have purchased the five hundred shares of Hudson River stock, for the plaintiffs, at the first board in the morning. The testimony on behalf of the plaintiffs being closed, the de- fendant's counsel moved to dismiss the complaint, on the following grounds : 1. That the message as delivered by the defendant to Drexel, Winthrop & Co., was so indefinite and uncertain in its directions to buy, as to put them upon inquiry as to its meaning which was overruled by the Court. 2. That the words five hundred in the connection in which they were used in the message as delivered, conveyed no au- thority to Drexel, Winthrop & Co. to purchase Michigan South- ern Railroad stock ; which was overruled by the Court, the Court, deciding that the message as delivered, authorized Drexel, Win- throp & Co. to purchase five hundred shares of Michigan South- ern Railroad stock. 3. That the purchase of five hundred shares of Michigan Southern Railroad stock, by Drexel, Winthrop & Co., was not a legitimate consequence or result of the defendant's error in the delivery of the message ; which was overruled by the Court. 4. That on discovery of the error in the message as delivered after the purchase of Michigan Southern Railroad stock, it was the duty of the plaintiffs, or their agents, Drexel, Winthrop & Co., to notify defendant of the purchase, and give the defendant an opportunity to adopt it, and assume the consequences thereof. The Court sustained this point, and held and decided that as no such oportunity was given the defendant, but on the contrary, the plaintiffs sold the said stock without 'consulting the defend- ant, the plaintiffs could not recover any loss incurred by such purchase and sale. To this ruling, the plaintiffs' counsel ex- cepted. 5. That the purchase of the Hudson River Railroad stock was a voluntary purchase, made with full knowledge on the part of the plaintiffs of the error in the delivery of the message, and of the market price of said stock, and that the damages alleged and clainled by the plaintiffs to have resulted therefrom, were 478 COURT OF COMMON PLEAS. * Rittenhouse v. The Independent Line of Telegraph. * speculative merely, and did not result from the defendant's er- ror. The Court overruled this point, and the defendant's counsel excepted. G. That the purchase of Hudson Eiver Railroad stock made by Drexel, "Winthrop & Co. was not made in accordance with the directions of the plaintiffs, inasmuch as such purchase was not made at the board, and the defendants could not be liable thereon ; which was overruled by the Court, and the defendant's counsel excepted. 7. That the negligence and carelessness of the plaintiffs and their agents, in misconstruing the telegram, contributed to the injury alleged, and the plaintiffs could not recover; which was overruled by the Court, anti the defendant's counsel excepted. 8. That after the discovery of error, and before purchasing the Hudson River Railroad stock, it was the duty of the plain- tiffs to notify the defendant, and having omitted to do so, the plaintiffs could not recover for the loss on the purchase ; which was overruled by the Court, and the defendant's counsel excepted. The Court, thereupon, decided that the plaintiffs were en- titled to recover of the defendant the sum of one thousand three hundred and seventy-five dollars, with interest thereon from the 14th day of October, 1863, amounting in all to the sum of one thousand four hundred and twenty-five dollars and eighty- nine cents, and entered judgment accordingly. From the judgment entered on this decision, the defendant ap- pealed to the General Term. Edward Fitch, for appellant. I. The defendant is not a common carrier. It does not un- dertake to carry either persons or merchandise. It is simply a contractor undertaking to perform labor and services, and is liable only for damages for non-performance of its contract. II. The damages claimed are not the immediate, consequential and necessary results of the mistake of the defendant, but are remote consequences which could not be produced by the action of the plaintiffs through their agents ( Wibert v. JOT. Y. and E'ie R. R. Co., 19 Barb., 36). III. The first message was so indefinite and uncertain in its directions to purchase, that the brokers should have been put up- NEW YORK JULY, 1865. 479 Rittenhouse v. The Independent Line of Telegraph. on their guard, and were charged with the duty of making further inquiry before acting under it. IV. The plaintiff's first message directed the purchase of " five Hudson at board." Their second message repeated the first in substance, and directed their agents to " execute bal- ance of order." The agents were therefore clearly and em- phatically commanded to purchase the Hudson River Railroad stock at the loard. They purchased it on the street after the adjournment of the board, in violation of the directions, and the defendant cannot be charged with the consequences. If they had followed instructions, and made the purchase at the next morning board, it does not appear that any loss would have followed. This point is fatal to that branch of the plain- tiffs' claim upon which a recovery was had, and the complaint should have been dismissed. E. Sprout, for respondents. BY THE COURT. BRADY, J. The dispatch written by the plaintiffs was an order to their brokers here to sell their Mich- igan Southern Stock and to buy five hundred shares of Hudson River Railroad stock. The language employed, how- ever indefinite to others, was intelligible fo the brokers. The dispatch written was not sent, and the effect of the error was to make it an order to sell the shares of Southern, and to buy five hundred more. As to this the erroneous dispatch is neither uncertain nor indefinite. No otker interpretation can be fairly given to it. The evidence established the fact that the use of words " five Hudson," by an understanding between plaintiffs and their brokers, meant five hundred shares of the Hudson River Railroad Stock, and also, that the erro- neous dispatch was understood to be an order to purchase five hundred shares of the Michigan Southern, and which, as be- fore suggested, was the only conclusion to be drawn from the language employed. These views dispose of the exceptions to the sufficiency of the evidence to warrant the findings of fact upon which the judgment is based. The plaintiffs, on learn- ing that an error had been committed, again directed the pur- chase of Hudson River Railroad Stock, and were entitled to the advantages of such purchase at the rates prevailing on the day of the date of the dispatch, without reference to the ses- 4SO COURT OF COMMON PLEAS. Rittenhouse v. The Independent Line of Telegraph. sion of the board, when the dispatch was received. The omis- sion to buy at the board on that day arose from the defendants' misconduct in sending the dispatch, and it became the duty of the broker under his instructions to make the purchase at once. The defendants having placed it beyond the power of the plaintiffs' brokers to make the purchase in the particulai manner indicated, they cannot avail themselves of the fact that the purchase was not made in that mode. They cannot take ad- vantage of their own wrong, particularly when it nowhere appears that they were injured by the circumstance. The prices paid were the lowest at which the stock could be ob- tained, and the defendants had the benefit of that fact. The purchase was voluntary, it is true, but it was an act which the plaintiffs had the right to perform, growing out of their rela- tions with the defendants, established by the contract on the part of the latter to transmit the dispatch faithfully. These views are responsive to the exceptions taken to the legal con- clusions arrived at upon the trial, and leaves but one to be considered. The plaintiff's claim for a difference of $475 on the sale of the five hundred shares of Michigan Southern, was disallowed, upon the ground that*the stock was, in legal effect, purchased on defendants' account, and could not be sold without some notice to them. I think this ruling was a proper one, the re- lations of the parties being considered. If the plaintiffs intended to disavow the purchase, the defendants should have been notified thereof, and in that way enabled to keep the stock or not, as they might deem most advisable. By exercis- ing the act of ownership in the sale made, they have adopted the purchase, and the sale must therefore be regarded as on their account. But if this view be incorrect, there can be no doubt that the defendants were entitled to notice of the mis- take made by them, before any sale of the stock purchased, in pursuance of their erroneous dispatch, was made. For these reasons the judgment must be affirmed. NEW YORK JULY, 1865. 481 Wallace v. Lent. JAMES WALLACE v. WHITMAN S. LENT. JTo contract is implied that a house is fit. for habitation, as the tenant can examine it, and the landlord may know no more respecting it than it is in the power of the tenant to discover for himself. But where the landlord knows that a cause exists which renders the house unfit for occupation, it is a wrongful act on his part to rent it without notice of its condition, and where the tenant, after discovering the condition of the house, quits it, the landlord should not be permitted to take advantage of his own wrong and enforce the contract for the payment of the rent. A landlord rented a dwelling house to a tenant without disclosing the fact, of which he was aware, that there was a deleterious stench in the house, pro- ceeding from some unknown cause, which rendered it unfit for habitation. The tenant, ignorant of the circumstances, went into possession with his family, and in a very short time all the inmates of the house experienced the injurious effects of the stench, producing vomiting, &c. The tenant at- tempted to abate the nuisance, but without effect ; and after a month's occu- pation, on the advice of his family physician, quit the premises, Held, that the concealment was a fraud on the part of the landlord, and that the tenant was justified in leaving. Even where fraud has been practiced, a tenant, if he continues to occupy the premises, must pay rent therefor, but after the discovery of the fraud, he is entitled to a reasonable time within which to repudiate the contract. Thus where the tenant continued in occupation about a month, but did so un- der the assurance of the landlord that the cause of the complaint should be removed, Held, that his continuance during that period was not of such a nature as to amount to an adoption of the contract, or to make the tenant liable for the payment of the rent for the period while in actual occupation. APPEAL by the defendant from a judgment of the Sixth District Court. The action was brought to recover for two months' rent of certain premises in the City of New York, due on the first days of May, and June, 1863. The defence was that at the time of the hiring of the premises the plaintiff fraudulently concealed from the defendant the existence of a deleterious stench in the house, proceeding from some unknown cause, and rendering it dangerous to health to remain in the house. It was shown on 31 482 COURT OF COMMON PLEAS. Wallace v. Lent. the trial that this nuisance was well known to the plaintiff's agent, who rented the house ; that the previous tenant had complained of it, and that the plaintiff had, in consequence, made application to the Health Warden. The defendant, after occupying the premises a, part of two months, abandoned them, on the advice of his family physician that the health of himself and family was thereby jeopardized. The Court below rendered judgment for the rent of the two months during which the defendant occupied, and the latter appealed to the Court of Common Pleas. Roscoe H. Channing, for appellant. Flanagan & Cummings, for respondent. BY THE COUKT. DALY, F. J. This was the case of a land- lord's agent renting a dwelling house in the City of New York to a tenant without disclosing the fact, of which he was aware, that there was a deleterious stench in the house proceeding from some unknown cause, which rendered it unfit for habita- tion. The tenant, ignorant of the circumstances, went into possession with his family, and in a very short time all the in- mates of the house experienced the injurious effects of the stench. It was not merely offensive to the senses, but it .pro- duced sickness at the stomach, vomiting, loss of appetite, &c. The tenant did everything in his power to abate the nuisance, but without effect, and after continuing in the house for about a month, and after several consultations with the family phy- sician, who was of opinion that the family could not live in the house without all becoming sick, he left it. The plaintiff has recovered in the Court below for two months' rent, and I think erroneously. It was held in Sutton v. Temple, 12 Mees. & W., 52 ; and in Hart v. Winslow, id., 68; overruling the previous cases of Collins v. Barrow, 1 M. & Rob., 112 ; and Salsbury v. Mar- shall, 5 C. & P., 65 ; that there is no implied condition in an agreement for the hiring of a house that it is reasonably fit for habitation ; and it was held in Westlake v.'DeGraw, 25 Wend., 669, that it was no answer to an action for the rent that the tenant left the premises in consequence of a noxious, unhealthy smell, arising from dead rats under the steps of the house, in- NEW YORK JULY, 1865. 4S3 Wallace v. Lent. asmuch as by the exercise of ordinary vigilance he could have ascertained, as the tenant who succeeded him did, the cause of the smell, and might have removed it. The present case, however, is distinguished from either of the preceding ones in several particulars. The landlord's agent admitted that he knew before he rented the premises to the defendant, that there was an offensive stench in the house, the cause of which had not been discovered, but which he supposed arose from a sewer that was under the house. It was, in the langua.ge of the physician, a dense bad smell, as if it came from a vault, and that it was highly injurious to health, appears in the fact that when the inmates of the house arose every morning, they had sickness at the stomach accompanied with a foul tongue and loss of appetite, -and some of them were taken with vomiting. The previous tenant had left the premises be- fore the expiration of his term, and the agent, after several at- tempts to evade the inquiry, admitted that this tenant may have said to him that he left the house in consequence of the smell. He also admitted that the complaints had been previously made respecting the stench, and that in consequence of them he had made an application to the Health Warden. To let the house to the defendant, concealing so material a mat- ter as this, was a fraud. It was something which the defendant could not have anticipated, and of which he had a right to be advised, as it affected the beneficial enjoyment of the premises. The agent knew that the house was not fit for habitation, but the tenant did not, nor could he have discovered the cause which made it so by any ordinary examination of the premises. No contract is implied that a house is fit for habitation, for the reason that the tenant may examine it, and the landlord may know no more respecting it than it is in the power of the tenant to discover for himself. But where the landlord knows that a cause exists which renders the house unfit for habitation, it is a wrongful act on his part to rent it without notice of its condition. It is procuring an innocent tenant to enter into a contract for the payment of rent during a specified period for the occupation of a house which the landlord knows that, the tenant will either have to abandon, or if he remains in it mnst do so to the detriment of the health of himself and his family. 4S COURT OF COMMOK PLEAS. "Wallace v. Lent. If the defendant had been advised of the existence of this stench, it may fairly be presumed that he would either hare declined to rent the house, or that he would have made some conditions entitling him to leave if he found it unendurable, and if after discovering and experiencing its injurious effects, he is compelled to quit the house, it would be permitting the landlord to take advantage of his own wrong, to allow him to enforce the contract for the pay- ment of the rent. In Button v. Temple, the Court adverted to the circumstance that it was not suggested that the plaintiff had the least knowledge when she let the premises of the exis- tence of the poisonous substance upon the land, which proved injurious to the plaintiff's cattle; and in Westlake v. DeOraw^ the verdict of the jury was regarded as having negatived any presumption of fraud ; but in the present case it was abun- dantly shown, even by the agent's admission, that he knew of the existence of the stench, and it was by the unconscientious withholding of the material fact, that the defendant was en- trapped into a contract to pay rent for a house for a year which he could not occupy. Even where fraud has been practiced, a tenant, if he con- tinues to occupy the house, must pay rent for it, but after the discovery of the fraud he is entitled to a reasonable time within which to repudiate the contract. In this case, the defendant continued in occupation about a month, but he did so under the assurance of the agent that the cause of the complaint would be removed. An attempt was made, but it was not re- moved, and the defendant left about the second of June, by the advice of his physician. His continuance therefore during the period was not of such a nature as to amount to an adoption of the contract, or to make him liable for the payment of rent for the period which he actually occupied. The judgment should be reversed. NEW YORK JULY, 1865. 4S5 Bloomer v. Merrill. ELISHA BLOOMER v. WARREN M. MERRILL. The statute of 1860, ch. 345, permitting lessees to surrender buildings rendered untenantable by the elements, applies only where the injury or destruction , occurs after the lessee's entry, and not where 'it exists at the time of i making the lease. The proceedings before a Justice, who loses jurisdiction by failing to render his decision within the statutory time, are null, and constitute no bar to a recovery on the same cause of action in a subsequent suit. A tenant informed his landlord that he should leave his premises on the 1st of January, and was told that if he did so, the landlord would let the prem- ises on his account and hold him responsible for the rent. Subsequently, the landlord sent a person to occupy the house, and the tenant moved out without further remark, Held, that this did not release the tenant from his lease. / APPEAL by the defendant from a judgment of the Marine Court. The plaintiff brought a suit in the Marine Court to recover a balance of rent due from November 1st, 1863 to May 1st, 1861. It was admitted that the plaintiff leased the premises in question to the defendant for six months from the 1st of November at $35 per month, and that he, defendant, had paid bnt $90 on account of it. It appeared, however, that on the first of December, the defendant went to the plaintiff, and told him the place was in such bad condition that it was not fit to live in, and he should move on the first of January. The plaintiff told him if he did, he would rent the premises on his account, and would hold him responsible for the rent. On the 28th of December, a person, sent by the plaintiff, came to the premisoe and demanded possession, whereupon the de- fendant moved out This the defendant claimed was a surrender and acceptance by the landlord freeing him from liability for the rent. lie further claimed that the premises were in an 486 COURT OF COMMON PLEAS. Bloomer v. Merrill. untenantable condition, and on the trial several questions were put to show their state in November and December, but were all overruled. It also appeared that in January, the plaintiff had com- menced an action in a District Court for the rent, which was submitted to the Justice of that Court for decision, but that 110 decision was rendered in that action. The Justice of the Marine Court directed a verdict for the plaintiff, and the defendant appealed to the General Term of the Marine Conrt, and from their affirmance the defendant appealed to this Court. David McAdam, for the appellant. Robert H. Corbett, for the respondent. BY THE COURT. DALY, F. J. There was no provision in the agreement, which was in writing, that the landlord should make any repairs, and when that is the 'case, the tenant takes the premises for better or for worse, and must pay the rent for the term demised, the landlord being under no obligation to repair them (Mumford v. JZrown, 6 Cow. R., 475). The statute of 1860 (Laws of 1860, p. 592), must be held to apply only where the building "is destroyed or so injured by the elements or other cause, as to. become untenantable and unfit for occupancy," after the tenant has been in occupation. It never could have been the intention of the statute that a tenant might hire a dilapidated house for a certain time, agreeing to pay a specified rent fur it, and that then without any material change in its condition he should have the right to quit aiid surrender it whenever he pleased. The statute was evidently intended to relieve tenants in cases analogous to that of Weigall v. Waters, 6 T. R., 488, where during the term the building was damaged so severely by a tempest as to become untenantable, and yet the tenant was held bound for the rent. The offer of the defendant in this case was to show what was the condition of the premises in November and De- cember. The defendant hired them on the 6th of November, and, in my view of the statute, the evidence fcas immaterial unless the defendant was prepared to prove that from some cause occurring after the 6th of November, they had become NEW YOEK JULY, 1865. 487 Shaw v. Lenke. untenantable and unfit for occupancy, and his offer did not go to that extent. The Justice having failed to render his decision within the time limited by law, lost jurisdiction of the cause, and the plaintiff's only remedy was to sue again ( Wiseman v. The Panama Railroad Co., 1 Hilt., 301 ; Watnon v. Davis, 19 Wend., 371 ; Berrian v. Olmstead, 4= E. D. Smith, 279). The proceedings in the District Court were no bar. The defendant admitted that the plaintiff said that he would let the premises on his account, and that he would hold him responsible for the rent, after the defendant told him he would leave at the end of December. The letting of the premises therefore, to Price, in January, was no evidence of surrender. The judgment, in my opinion, should be affirmed. Judgment affirmed. HORATIO F. SIIAW v. ANDREW LENKE and THADDECS F. OGO The adjustment of gas-fixtures to a gas-pipe is not such an annexation to the freehold as to make them a part of the realty and subject to the operation of a grant thereof. APPEAL by the plaintiff from a judgment of the Sixth Dis- trict Court, dismissing the complaint. The action was brought to recover the value of certain gas- brackets and chandeliers, claimed to be wrongfully detained by the defendant. The fixtures were attached to two buildings in Thirty-Eighth Street, in the City of New York, belonging to the plaintiff's assignor, Richard W. Horn, who by deed conveyed the houses to the defendants. The defence was, that the brackets and chandeliers in suit were fixtures, and as such passed by the conveyance to defend- ants, as appurtenant to the freehold. The Court below so decided, and rendered judgment for the defendant. The plaintiff appealed to the Court of Common Pleas. 4SS COUST OF COMMON PLEAS. Shaw v. Lenke. J. F. Malcolm, for appellant. Stitt & Huston, for respondents. BY THE COURT. BRADY, J. The rule of law applicable to this case is stated substantially as follows, in 'Walker v. Sher- man (20 "Wend., 645) : " Articles of furniture movable in their nature, are not fixtures, although attached by screws, nails, brackets, &c. Such things are hangings, pier-glasses, chimney- glasses, book-cases, carpets, blinds, curtains, &c." (Gib- bons on Fixtures, 20, 21). The removal of gas-fixtures is analogous to the removal of a stove temporarily attached to the floor and to the chimney, by means of the pipe, and which would not pass by conveyance as part of the property (Free- land v. Southworth, 24 Wend., 191). The adjustment of the bracket or chandelier to the gas-pipe, is not such actual annexation to the freehold as is contemplated by law. The fixture itself, though employed for a useful pur pose, and often highly ornamental, is not indispensable to the en- joyment of the realty. It forms no part of the soil by annexation, actual contact, or otherwise. It is not fastened to the wall, and it can be removed without injury either to the wall, freehold, or pipe to which it is attached. In addition to this, it may be said with propriety that it has become by usage and general concession, as much nn article of furniture as a mirror or car- pet, although not so universally owned. Without pursuing the subject further, however, and without reviewing the numerous cases on the subject of fixtures, and which relate in a great majority to improvements made for the purposes of trade or manufacture, it is sufficient to say that the articles claimed by the plaintiff are pot fixtures, and part of the realty, within the rule established by any case decided in this State. They were not permanently fastened to the building, or habitu- ally attached, as in iSnediker v. Warring (12 K. Y., 171), or so connected with the subject of the grant as to fit the building for any particular purpose, without which it is not adapted to the business, as in Taber v. Robinson (36 Barb., 483), and Laflin v. Griffiths (35 Id., 58), or a part of the real estate, as in Bishop v. Bishop (11 X. Y., 123), but were so constructed as to be movable, and put up evidently with that purpose in view. They are certainly exempt from the operation of a NEW YORK JULY, 1865. 489 Dikeman v. Puckbafer. grant, even without reference to tlie general rules, if the case of Farrar v. Chaufeteie (5 Denio, 527), is an authority, and I do not understand it to be questioned. It was held in that case, that machinery put up with a view to its being removed without injury to the building, is not a fixture passing with the free- hold. The case of Hartman v. Vultee, in this Court (May, Gen. T., 1865), referred to by the appellant, has no analogy to this case. I think the judgment should be reversed. Judgment reversed. HENRY M. DIKEMAN and GEORGE "W. SEABOLD v. CHARLES PUCKHAFER and WILLIAM HARRIS. An error of the Register in improperly endorsing a chattel mortgage, whereby a subsequent purchaser is misled, does not invalidate the mortgage ; the making of such indorsement is the duty of the Register, and its omission ia not the fault of the mortgagee, and cannot affect his rights. ft seems that the remedy of -a purchaser who has been misled as to the exis- tence of a chattel mortgage by reason of an omission or defect in the in- dorsement or filing of the mortgage, is against the officer making such error. APPEAL from a judgment by the plaintiff. The facts are fully stated in the opinion. BY THE COURT. CARDOZO, J. In January, 1863, the plain- tiffs sold Messrs. Boscomp and Schiffer a grocer's wagon, and took back a mortgage on it for the purchase money, viz., one hundred dollars. The mortgage did not specify any time for payment, and consequently was due immediately (Howland v. Willett, 3 Sandf. S. C. K., 608), and it was not necessary to demand payment of it to enable the plaintiff to maintain this action (Howland v. Willett, supra ; Brown v. Cook, 3 E. D. Smith, 123). The plaintiffs duly tiled the mortgage in the Register's office, but the Register appears not to have prop- erly indexed it, according to the act of 1849, and this omission, 490 COURT OF COMMON PLEAS. Dikeman v. Puckhafer. attributable probably to the difficulty of deciphering the names of the mortgagors, has led to the dispute between the parties and to this suit. After the tiling of the mortgage, the defendants purchased the wagon, with other property, from the mortgagors' ; paying for it by crediting them with the amount of an old indebted- ness of one hundred and seventy-two dollars, paying on their account to one Hecker (who'held 'a mortgage on this wagon), one hundred dollars, and also paying to the mortgagors the sum of forty dollars in cash. The defendants, before making the purchase, examined the index of chattel mortgages in the Reg- ister's office, but by reason of the omission of the Register, they failed to discover, and they had not any notice in fact of, the existence of the mortgage. The plaintiffs demanded this wagon from the defendants, but they refused to surrender it, and claim to hold it discharged of the lien of the mortgage to the plaintiffs. A demand before suit brought is distinctively and positively sworn to by the plaintiff Seabold, and therefore, while I incline to think that a demand after the summons had issued would not be sufficient, it is unnecessary to determine that point. The jury found for the defendants. I think the verdict con- trary to law. Upon the evidence, the plaintiffs had done all that they were required to do to make the mortgage as to them valid. A duty, viz., to index the mortgage, rested on the Register, with which the plaintiffs had nothing to do ; over which they had no control, and the omission of which was not their fault. They were bound to file the mortgage, and they did so. That the defendants did not through the registry obtain notice of this mortgage was not the plaintiffs' fault and cannot affect their rights (See Dodge v. Potter, 18 Barb., 193). The mortgage was given for a valid and valuable consideration ; the bona fides of it was not attempted to be impeached ; it was filed pursuant to the statute, and the defendants, if they have been misled into parting with their money for the wagon in ignorance of the plaintiffs lien, must seek redress against the officer whose omission to do nis duty has operated to their loss. They can- not claim to hold the property free of the mortgage. The judgment should be reversed. NEW YOKK NOVEMBER, 1865. 491 Ball v. The New Jersey Steamboat Company. HUDSON W. BALL v. THE NEW JERSEY STEAMBOAT COMPANY. To charge a common carrier there must either be a special acceptance of the property or a delivery according to the established usage in the carrier's bus- iness ; and where by the usage, there 'is a person appointed to receive an<\ take charge of a particular kind of property, the delivery must be to him, and not to one engaged in the discharge of other duties. Where carrier has an agent on his boat to receive and take charge of baggage and to check it, it is not a good delivery to leave it upon the boat without obtaining a check or calling the agent's attention to it. A cartman took the plaintiffs trunk to the defendants' wharf, and was there directed by a baggage master having charge of a different class of goods to take it on board the boat. The cartman deposited the trunk with other trunks at the baggage-room door, without obtaining a check for it or call- ing to it the attention of the baggage master having charge of that class of baggage ; Held, that this was not such a delivery to or acceptance by the defendants as to make them liable for the loss of the trunk. APPEAL by the plaintiff from a judgment entered on -a referee's report. This was an action against the defendants as common carriers to recover the value of a trunk placed on board their boat, the "New World." On the 14th of August, 1861, the plaintiff sent a trunk containing his wife's clothing by a cartman to be delivered on board one of the defendant's boats for Albany. The cartman took the trunk to the dock where one of the defendants' employees asked him " where ho was going?" He answered that he wanted to put the trunk on board. The man then directed him "to drive to the first gangway and put it on board." The cartman carried it on board and left it with the other trunks at the baggage-room door on the boat. He did not ask the person who directed him for a check, though he had checks in his hand, and did not call any person's attention to the trunk when he placed it at the baggage-room door. The person who spoke to the cartman was the dock agent of the defendants, whose duty it was to instruct persons coming with baggage not going west of Albany, to take it on board 4D2 COURT OF COMMON PLEAS. Ball v. The New Jersey Steamboat Company. the boat, or, if going west of that place, to have it checked on the dock and placed in baggage cars. The baggage-room on board the boat was in charge of another person, whose duty it was on presentation of passenger tickets to check baggage for Albany and Saratoga. When baggage was brought unaccom- panied by a passenger ticket, he took charge of it, if his atten- tion was called to it, but not otherwise, and he took measures to enable him to identify the person entitled to it. This trunk had no card or mark on it to identify it, so far as was shown by the evidence. The referee found the above facts, and that this usage of the defendants had existed for thirteen years; that the defendants had large cards posted conspicuously with the words, " Albany baggage checked on the boat. Baggage for the west checked on the dock," and that the trunk had been demanded by the plaintiff, but never recovered. He also found that the plaintiff was negligent in delivering the trunk, and that the complaint should be dismissed. On this report the defendants entered up judgment, from which the plaintiff appealed. Henry Whinfield, for plaintiff appellant. Charles Jongs, for defendant respondent. BY THE COTTKT. DALY, F. J. There was no contract, ex- press or implied, to carry the trunk as baggage, for no person went with it as a passenger that night in the defendant's steam- boat ; nor was it delivered to be transported as freight, which, by the established course of the defendant's business, is received by clerks as it comes upon the wharf, and taken to a different set of clerks, where it is weighed, or tallied, entered, receipted for, and then stowed away ; the rule being that the delivery of the goods, to charge the carrier, must be to the servant or agent appointed to receive them, and not to one engaged in other duties (Blanchard v. Isaacs, 3 Barb. R., 388 ; Leigh v. Smith, 1 Car. & P., 638). The question in this case, therefore, is whether there was such a delivering and acceptance of the trunk as would make the defendants responsible for its loss, and in my judgment there was not. The only intimation which the cartman received from the plaintiff was to take the trunk to the steamboat New World, NEW YORK NOVEMBER, 1865. 493 Ball v. The New Jersey Steamboat Company. for Albany. As the cartman came upon the wharf a person having checks in his hand, and who was checking trunks, asked him where he was going, and upon his answering that he wanted to put the trunk on board the boat for Albany, this person told him to drive to the first gangway and put it on board. By the regulations which the defendants bad estab- lished, all baggage going west of Albany was checked upon the wharf, and baggage for Albany and Saratoga, upon the boat. Notice of this regulation upon large cards, was posted at conspicuous places on the wharf, and there was a baggage- room on board of the boat (in charge of a baggage-man), who received and checked baggage for Albany and Saratoga upon the presentation of the passenger's ticket. Baggage was not checked unless a passenger ticket was shown ; but if baggage was brought by a cartman or other person with the statement that it was going to Albany, the baggage man put it in the baggage room with the unchecked baggage, and did not de- liver it without a description of the baggage or its contents, and upon doing so he took a receipt. When baggage came unac- companied by a passenger, the baggage man took charge of it if his attention was called to it, }>ut not otherwise, and took directions which would enable him to identify the person en- titled to receive it. Most of the baggage which came in that way, was brought by the City Express Companies, and was identified by the card and number they put upon it, a corres- ponding card and number being given by them to the pass- enger. The cartman took the trunk upon the .boat and deposited it with other trunks at the baggage-room door, and then left without saying anything or calling any one's attention to it, and the referee has found that the trunk had on it no mark or direction indicating to whom it belonged or where it was to go. The contents of the trunk consisted of the plaintiff's wife's clothing. On the following evening he bought a passenger ticket for her, and she went to Albany that night without a trunk. If the plaintiff 'meant to send the trunk to Albany by the steamboat a day in advance of the departure of his wife, he should either have sent it as freight, or instructed the cartman to put it into the custody of some person upon the boat author- 494 CO [JET OF COMMON PLEAS. Ball v. The New Jersey Steamboat Company. ized to take charge of it. The cartraan, receiving no other in- struction but to take it to the steamboat New World, for Albany, may very rationally have supposed that the plaintiff or some other person was going with it as a passenger in the boat that night, who, upon coming on board would have it checked in the usual way. He was not directed to get a check for it, nor could he have obtained one without procuring and paying for a passenger ticket, and having received no other instruction but what has been above stated, he no doubt con- sidered his duty sufficiently discharged when he placed it with the other trunks at the baggage-room door. That the trunk was not taken charge of by the baggage-man was owing to the fact that his attention was not called to it, and this was attrib- utable to the plaintiff's rather than to the cartman's negligence. To charge a carrier or carriers, there must be an acceptance of the goods either in a special manner, or according to the usage of their business (Story on Bailments, 533 ; Angell on Carriers, 140), and in this case there was not such a delivery into the custody of, and acceptance of the trunk for carriage by, the de- fendants as would make them liaole for its loss, or which would create an ordinary bailment. The direction given by the de- fendant's agent upon the wharf to the cartrnan to take the trunk on board was not an acceptance. His duties were lim- ited to checking the baggage of emigrants and to instructing persons having baggage going west of Albany to have it checked upon the wharf, and if it were for Albany to put it on board of the boat. He gave the proper instructions to the cartman, and if the trunk was not checked on board the boat, as it should have been, if the intention was to send it to Albany as baggage, it was through the plaintiff's negligence in not giving the cart- man instructions to that effect. Left upon the boat without anything to indicate to whom it belonged or where it was to go ; and without being brought to the notice of any one in authority upon the boat, it was in the power of any dishonest person who went up in the boat that night to get a check for it as his own property. It was held in Leigh v. Smith, 1 Car. & P., 638, that the delivery, to bind the carrier, must be to some one in authority, and that a delivery to one of the crew of a vessel would not be sufficient. In Buckman v. Levy (3 Camp., 414), the goods were left upon the wharf piled NEW YOKK NOVEMBER, 1865. 495 Ball v. The New Jersey Steamboat Company. up among other goods, with the name upon them of the person to whom they belonged and the place to which they were to be sent, while a person supposed to be a servant of the wharf- inger was upon the wharf, and it was held that there was not such a delivery to the wharfinger as would make him re- sponsible for the loss of the goods, and in Packard v. Getman, 6 Cow. R., 757, it was held that even where it was the usage to leave the goods upon the wharf near the boat, it is not a good delivery unless accompanied by express notice to the carrier. The responsibility of the carrier does not commence until there has been a complete delivery to him (2 Kent's Com. 604), and where, as in this case, by the established usage of the defendant's business, there was an agent upon the boat to receive and take charge of baggage for Albany, who gave a voucher or check for it, it was not a good delivery to leave the trunk upon the boat without either getting a check for it, or calling this agent's attention to it (Selway v. HoUoway, 1 Ld. Ray., 46 ; Cobban v. Downe, 5 Esp. R., 41 ; Tower v. TJtica and Schenectady JR. R. Co.,7 Hill, 47 ; Boehem v. Combe, 2 Maul. & S., 172 ; Harris v. Packwood^ 3 Taunt., 264 ; Lovett v. Hoiks, 2 Show, 128. The obligation to carry the trunk as baggage, as I have said, did not exist, as that is an obligation incident to and growing out of the contract for the carriage of the pass- enger, and no passenger went with it. If it had been called to the attention of the baggage-man, and he had taken it and placed it with the unchecked baggage, the defendants would have been entitled to a compensation for its carriage ; but upon the facts stated, no obligation on their part can be implied, either to carry it as baggage, or as freight. The report of the referee should be confirmed. -196 COURT OF COMMON PLEAS. Wilson v. Halpin. AUBREY C. WILSON v. MICHAEL HALPIN. Where a guest at an inn is notified that he must put his haggage in a particular place, that it may be safely kept, and he neglects to do so, the innkeeper is not liable in case of its loss. A guest was lodged in defendant's inn, in a room with several other persons, without objection on his part. He asked the chambermaid if he might leave his baggage in the room, and was told by her to deposit it with the clerk at the bar, that being the established regulation of the house. The guest placed his baggage under his bed, and during his temporary absence from the room it was taken ; Held, that the innkeeper was not liable. APPEAL by the defendant from a judgment of the Third Dis- trict Court. The defendant was the proprietor of an emigrant boarding house or inn, and as such received the plaintiff's assignor as a lodger. It was a general regulation of the house, which was brought to the notice of the plaintiff 's assignor, that all baggage should be left with the clerk at the bar. The lodger, without objection on his part, was placed in a room with several other persons, and placed his bag under his bed. During a temporary absence from the room, the bag was stolen, and an action was brought to recover its value. The court below rendered judgment for the plaintiff, and the defendant appealed. Thomas H. Hurley, for appellant. James G. White, for respondent. BY THE COURT. DALY, F. J. The defendant kept an emi- grant boarding house or inn. The plaintiff's assignor, Blakely, came there and was lodged, without any objection being made upon his part, in a room with several other persons who were strangers to him. He asked the chambermaid if he might leave his baggage in the room, and she told him to take it down to the boy in the store and give it into his charge. In- stead of doing this he put it under the bed, and left the room, leaving his brother and'another man there. When he returned the bag was gone. The chambermaid testified that she was NEW YORK NOVEMBER, 1865. 497 Wilson v. Halpin. instructed when persons brought their baggage to the room to take it down stairs. What she told Blakel y, therefore, was not merely a suggestion of her own, but the established regula- tion of the house ; and where persons, strangers to each other, were lodged in the same room, it was, as the event in this case has shown, a reasonable and proper regulation, to secure the safety of baggage. The defendant kept a board- ing house and a liquor store. He received every person that came, accommodating them by the day or by the week at a charge of one dollar per day. If the guest came without bag- gage, he paid for his accommodation every morning, or the guests paid as Blakely did, for each meal, and for their lodg- ing each morning. In such an establishment, where every one that came was received, and in consequence of the low rate charged, many were lodged in the same room, such a regulation, for the safety of the baggage of each guest, was indispensable. Instead of complying with it when told by the chambermaid what to do, Blakely put his bag under the bed, and through that act he was himself the cause of its being lost, and the defendant is not answerable for it. If the guest is notified to put his baggage in a particular place, where it will be safely kept, and he neglects to do so ; the innkeeper, if it is lost, is not liable (Saunders v. Spencer, Dyer, 266 J / Calye's Case, 8 Co., 33, a; Burgess v. Clement, 4 M. & S., 306 ; Rich- mond v. Smith, 8 B. & Cress., 9 ; Van Wyck v. Howard, 12 How. P. R., 151). We were under the impression upon the argument that the testimony of Blakely and the chambermaid were in conflict, but upon examination such does not appear to have been the case. Blakely was the first witness called, and he swore that he was not told by the defendant or any other person that the bag must be left behind the bar. The chambermaid was after- wards called by the defendant, and her statement was not that Blakely was told that he must leave his bag behind the bar, but that he should take it down to the boy in the store, and put it in his charge. This was not necessarily conflicting, for both statements might be true, and if the chambermaid did not give the particular direction which she swore she did, Blakely might have been called to contradict her. The judgment should be reversed. 32 498 COTJKT OF COMMON PLEAS. Harper v. Hall. DAVID HARPER v. ISAAC HALL. The General Term of the Marine Court has the same power as the General Term of the Supreme Court to correct the entries of its own judgments and decisions. On a motion before the General Term of the Marine Court to dismiss an appeal thereto, for want of prosecution, an order was 'erroneously entered affirming the judgment appealed from ; Held, that the General Term might, on motion, correct such order, so as to make it conform to the real decision of the court. An order of the General Term of the Marine Court dismissing an appeal thereto for want of prosecution, is not a final determination, from which o.n appeal can be taken to the Common Pleas. APPEAL by the defendant from a judgment of the Marine Court at General Term dismissing the defendant's appeal thereto. On the verdict of a jury, judgment was entered for the plaintiff, and the defendant appealed therefrom to the General Term of the court below, on a case and exceptions. On the plaintiff's motion, the General Term below dismissed the appeal on the ground of the want of service of printed copies of the appellant's case, and an order was entered dismissing the appeal and affirming the judgment, with costs. - On a motion subsequently made by the plaintiff, the General Term below amended the order so as to make it conform to the decision of the Court. The defendant appealed to the Common Pleas. 7?. H. Underbill, for appellant. Churchill, Welch and Woodbury, for respondent. BY THE COURT. CARDOZO, J. The defendant appealed to the General Term of the Marine Court from a judgment against him at the Special Term. The respondent moved to dismiss the appeal for want of prosecution, which motion was granted; but the attorney who prepared the order erroneously made it also provide that the judgment appealed from be affirmed with costs. The respondent discovering that the affirmance of the judgment was imperfectly inserted in the order, moved the NEW YOEK NOVEMBER, 1865. 499 Harper v. Hall. General Term of the Marine Court to correct the order, so "as to make it conform to the real decision of the Court. This motion was granted, and by an order of the General Term of the Court below, the correction was made. The question before us is, had the Court the power which it has exercised. The point is not free from difficulty, but after very careful consideration I have concluded that the Marine Court has not exceeded its authority. It may be conceded that prior to the act of 1853 (Session Laws of 1853, chap. 617, p 1165), the Marine Court would not have had any power to correct an entry of its judgment. This Court held in an unreported case that where a justice of one of the District Courts having discovered, after he had entered a judgment, that his calculation of interest on the amount claimed was erroneous, corrected the amount, he had not the power so to do, and therefore that the judgment must be reversed. Independent of the Statute above cited, I know of nothing which would give the Marine Court greater power in that respect than the District Courts possess. But the statute of 1853 made a great change. It gave to the Marine Couct power which it had not theretofore possessed. It qreated a General Term of the Court, and authorized appeals to be taken to it from the Special Term, in the like manner and with the like effect as an appeal from the Special to the General Term of the Supreme Court. One effect of an appeal to the Supreme Court is that that Court may correct an entry in the re. cord of its decision, and how can we say that an appeal to the Marine Court has had the like effect as if it were in a case in the Supreme Court if this power be denied. In order that the appeal to the General Term of the Marine Court can be said to have the like effect as an appeal from the Special Term to the General Term of the Supreme Court, it must be held that the General Term of the Marine Court can do every thing, in respect to a case brought before it on appeal, which the Supreme Court could do under similar circumstances. Such seems to me to % have been the intention of the legislature, and therefore I think the act must receive that construction. It is undoubtedly true that the General Term of the Marine Court could not grant a new trial on the ground of surprise or newly discovered evidence, or that the verdict was contrary to 500 .COURT OF COMMON PLEAS. Schneider v. The Irving Bank. the weight of evidence ; but neither, in the first instance, could the Supreme Court, for such a motion would in that Court have to be addressed primarily to the Special Term. But a motion to correct the entry of the decision of the Gener- al Term or a motion for a reargument, and the like which are motions which may be made in the General Term of the Supreme Court, may,- 1 think, also be made in the General Term of the Marine Court. It is only by so holding and giving to that Court as full control over the case as the Supreme Court would possess in a case in the General Term of that Court, that full force and efficacy can be given to that branch of the statute which declares that the appeal shall be with the like effect as an appeal in the Supreme Court. I think, therefore, that the Court below had the power to en- tertain the motion to amend the order of the General Term in conformity with the real state of facts, and that having done so, and presented a return to the appeal to this Court which shows that the appeal below was dismissed for want of prosecution, there is no such final judgment as must exist before an appeal can be taken to this Court. I think the preliminary objection raised by the* respondent's counsel should be sustained and the appeal be dismissed. CHARLES SCHNEIDER and others v. THE IRVING BANK. Where a Bank was notified by the drawer of a check not to pay it, and the paying-teller promised not to do so, but afterwards paid it to the holder on presentation, Held, that the drawer might recover from the Bank the amount of the check so paid. Entries in a depositor's bank-book do not constitute an account stated between the depositor and the Bank, where the former, within a reasonable time after the book is balanced, makes objections thereto. APPEAL by the defendant from a judgment of the Eighth District Court. The facts are fully stated in the opinion of the Court. NEW YOKE NOVEMBER, 1865. 501 Schneider v. The Irving Bank. JS. 7?. Bogardus, for appellant. A. A. P/tillips, for respondents. BY THE COURT. CAKDOZO, J. On the 17th of July, 1863, the plaintiffs, who kept an account with the defendant, drew a check upon it for two hundred and sixteen dollars and seventy-one cents, and delivered it to the Central Express Company. About ten minutes after the check was issued one of the plaintiffs gave notice to the defendant that they, the plaintiffs, had a defence to it, and the Bank must not pay it. The teller, upon receiving the notice, stated that the check had not yet been presented, and promised not to pay it. Notwith- standing this notice and promise, the defendant did pay the check. There is some conflict as to the subsequent transactions between the Bank and the plaintiffs, but in support of the judgment I think we must hold that the Justice found that the plaintiffs knew nothing about the payment of the check until their Bank-book was written up about a month afterwards, and that when the check, with their other vouchers, was thus returned to them, the plaintiffs called upon the Bank about it I do not think we can say that this amounted to an account settled between the parties. Neither party states what was said in that interview ; but as the plaintiffs called upon the defendant as soon as the check was returned to them, and that was followed by this suit at no very considerable period afterwards, I do not think it can be said that the plaintiffs acquiesced in the account, as stated by the defendant, on counting up or balancing the plaintiffs' book. The only question, then, presented in this case is whether the defendant, after receiving notice and promising not to pay the check, had the right to pay it and charge the amount as a payment to the account of the plaintiff; and I am clearly of opinion that it had not. The check was but an order on the defendant, which it had not accepted, and upon which there- fore it was not liable. It was perfectly competent, therefore, for the plaintiffs to revoke the authority which they had given to the Bank to apply their funds to- the payment of the check. The Bank had not accepted or promised to pay the check, and therefore owed no duty in the premises except to the plaintiffs. If it be conceded that the Bank, by this unauthorized pay- 502 COUET OF COMMON PLEAS. Annett v. Foster. ment, acquired whatever cause of action existed against the plaintiffs in favor of the payees of the check, yet this judgment should not be disturbed. The Bank did not set up any counter, claims against the plaintiffs, but tried the case simply upon the question of their right to pay this check. Had a counter-claim been interposed, the plaintiffs might have gone into evidence to show that they had a defence to the claim in payment of which they had issued this check, as they stated to the teller of the Bank. As the Bank can yet sue the plaintiffs, if.it thinks it has acquired a cause of action by becoming possessed of the check, it will not be prejudiced by the affirmance of this judgment, which, upon the testimony and the course of the trial below, is correct. The objection that the check was not tendered to the Bank was not taken below, and cannot be relied on here ; but if the Bank wish it, the check must be taken from 1 the filea, and delivered up to it. I think the judgment should be affirmed. ROBERT ANNETT v. DAVID FOSTER. Where a vessel was attached to a wharf by a line lying for most of its length beneath the water, and at such a distance from the wharf as to leave ample passage-way between it and the wharf for vessels to pass to and fro, but no person was on deck to loosen the line or warn vessels attempting to pass, Held, negligence which rendered the owners liable for any damages resulting therefrom. The relation of master and servant between the owner and master of a vessel and the liability of the former, as owner, for negligence in its management does not cease unless the owner has given up all control of the vessel and of her employment, and all immediate and direct interest in the freight earned by her. Hence, where the agreement between the owner and master of a vessel was that the former should make contracts for, and receive the freight, and pay wharfage, and the master should receive a share of the freight money, and pay all other expenses, and be allowed to select the kind of em- ployment for the vessel, Held, that this was not such a surrender of control NEW YORK NOVEMBER, 1865. 503 Annett v. Foster. as to make the master owner pro Tiac rice, or relieve the owner of liability for injuries arising from negligence in the management of the vessel. What acts will divest the owner of his responsibility for the management of a vessel, considered. APPEAL by the defendant from a judgment of the District Court for the Third Judicial District. The action was brought to recover damages for injuries caused to the plaintiff 's steamboat, the u Thomas E. Hulse," from a collision with the defendant's schooner " Cataract." The schooner was lying apparently at anchor opposite the Jane Street pier, and about one hundred yards from the pier to which she was in fact fastened by a line, the line dipping into the water immediately from the pier and the bow of the schooner. The steamboat was passing up between the'schooner and the pier, which was testified to be the usual track for her in the then state of wind and tide, and according to the pilot's evidence, the rope was not seen until the boat was too near to stop. She was checked, but was caught by the rope, so as to produce a collision, causing some damage to the steamboat, and caus- ing her to be laid up for repairs for two days. It was testified that no person* was on the deck of the schooner when the boat was approaching. The defendant gave evidence that Nicholas Thompson had control and management of the schooner. She was chartered to him in shares, and he was to victual and man her ; that de- fendant had nothing to do with her navigation. The schooner was, at the time, carrying brick for one Henry Belfair, under a contract made by defendant himself. Thompson had the priv- ilege, if he did not like the brick trade, to go into any other he thought more profitable. The defendant paid the wharfage, while Thompson paid all other expenses, and he and defendant had a settlement every two trips. On these facts the justice rendered a judgment for the plaintiff for one hundred and fifty- one dollars and thirty-seven cents, from which the defendant appealed. Wm. J. Haskett, for appellant. O. P. Andrews, for respondent. ' 501 COURT OF COMMON PLEAS. Annett v. Foster. BY THE COURT. DALY, F. J. The evidence introduced by the plaintiff made out a clear case of the absence of any negli- gence on the part of those in charge of the steamboat. It was in conflict with the testimony produced by the plaintiff to es- tablish co-operating negligence, and the justice having found in favor of the plaintiff, his decision upon all facts which were in conflict is final, and will not be reviewed. The steamboat was not out of her course. There was ample space for her to pass between the schooner and the dock. She had several times before gone as close to the dock, and she did so on this occasion to keep fair with the wind and to increase her speed. It was, according to the testimony of the pilot, the usual and accustomed course, as the wind and tide then were. It was an act of negligence to have the schooner lying in the river from three to four hundred yards from the bulkhead, with her line attached to the bulkhead, for as the line was sunk in the water, there was nothing to indicate that there was any- thing to obstruct the free passage of vessels in the open space between the schooner and the wharf. If the position had be- come necessary in consequence of the high state of the wind and the dragging of the schooner's anchor, she should have had some person upon the look-out, either to slacl^nthe line or to warn vessels approaching not to pass between her and the bulkhead. As the line which connected her with the wharf was beneath the water, it would naturally be supposed, as was the case in this instance, that she was lying at anchor, and .to continue lying there, in a river like the Hudson, where steam- boats and vessels of every description are constantly passing, without resorting to any means to indicate that there was an obstruction to vessels passing between her and the wharf, or providing any way to guard against the occurrence of such an accident as took place, was an act of negligence. The agreement which subsisted between the defendant and the master of the schooner was not of such a character as to constitute the latter owner of the vessel pro hac vice. The schooner belonged to the defendant, and he made a contract with one Belfair to carry brick for a stipulated sum per thou- sand, in which service the vessel had been employed for some time when the accident occurred. The defendant collected the freight for the carriage of the bricks from Belfair, giving NEW YORK NOVEMBER, 1865. 505 Annett v. Foster. one-half of it to the master and retaining the other *haif him- self. The master, out of his half, victualed the vessel, hired and paid the men, and had exclusive charge of the navigation ; and the defendant, out of his half, paid the wharfage. The wear and tear and painting were also, it would seem, paid out of the captain's share. A settlement was made at the close of every second trip, and the captain, if he did not like the brick trade, had the privilege to go into any other he thought more profitable. There was not such a parting by the defendant with the con- trol and management of the schooner and of her earnings as would make Thompson, the captain, the temporary owner. The defendant was the owner and the freighter. He made the contract with JBelfair for the carriage of the brick, collected the freight, and he alone was entitled to receive it in the first instance. He would be answerable to Belfair in the event of a failure to deliver the bricks pursuant to the contract; all of which are determining circumstances to show that he had not so divested himself of the control and management of the vessel and of her earnings, as to vest in another the rights and respon- sibilities of ownership, for the time being. " It' a case should occur," said Lord, TENTERDEN, in his work upon shipping (p. 57, 8th Lond. ed.), " of an injury done by the negligent or unskill- ful management of a ship, the possession and control of which had so completely passed to the charterer that he appointed the master and crew, and directed not only her destination and .employment, but the mode of her navigation, then, probably he, and not the absolute owner, would be held responsible for the misfortune." But this is not such a case. Here the master of a vessel is selected by the defendant, between whom and the master an agreement is made to run her upon shares, but the defendant contracts for her employment, and receives the freight, which he divides with the master, each of them bearing a certain proportion of the expenses of running the vessel. In the well-considered case of Newberry v. Colvin (T ( Bing., 190 ; 1 Clark & Fin., 283), which in some respects resembled this, the owner had no immediate interest in the freight earned, but the whole surplus went to the master, who had agreed to pay for the time and use of the ehip, whether any freight waa earned or not, a stipulated sum, to be com- 506 COURT OF COMMON PLEAS. Annett v. Foster. puted according to the tonnage of the vessel, which was aeon- trolling circumstance to show that the vessel was in the em- ployment of the master, and not of the owner. The same fea- ture distinguishes the case of Thompson v. Snow (4 Greenl., 264), in which the vessel was let to the master on shares, he victualing and manning her, paying a portion of the port charges, and yielding to the owners for her hire, a certain share of the net earnings ; but in which he had the right to employ the vessel as he pleased. In Lyman v. Jtodman (10 Shep., 28), it is said that the taking of the vessel by the master, his victual- ing and manning her, paying a portion of the port charges, and having a share of the profits, do not of themselves constitute him the owner pro hac vice ; that it is the entire control and direction of the vessel which he lias the power to assert, and the surrender by the owner of all power over her for the time being, which will exonerate the owner from liability. Such was the case of Webb v. Pierce (1 Curt. 0. C. R., 104), in which the master hired the vessel upon shares, under an agree- ment to victual and man her, and employ her in such voyages as he thought best. In Jones v. Blinn (2 Rich., 475), it was held that the owner is liable, the presumption being that the vessel is navigated for his benefit ; but where it is clearly proved that he has no interest in the freight, and that she is navigated under the entire control, as well as for the exclusive benefit, of a third person, such person is pro hoc vice the owner ; and in Arthur v. The Schooner Cassius (2 Story, 81), where the vessel was chartered by the master as owner for a certain voyage, and by the terms of the charter party the gen- eral owners were to share the freight with the master, it was held that the general owners were liable as owners for the voyage. These authorities are decisive upon the point raised. The defendant, it is true, testified that Thompson had the priv- ilege if he did not like the brick trade to go into any other that he thought more profitable ; but however that may have been, or whatever may be the exact meaning of this testimony, which is somewhat loose, the defendant, at the time of the accident and for some time before, had contracted for the employment of the vessel, und had received and shared in the freight, and the fact that she was then employed in an enterprise the earn- ings of which were received by the defendant, and proportion- NEW YOKK NOVEMBER, 1865. 50T Annett v. Foster. ably divided between him and Thompson, is sufficient to fix the defendant's liability (Jones v. /Sims, 6 Port., 138). The defendant selected the master, and if he were a negligent, unskillful, or incompetent officer, he had the right to discharge him, notwithstanding the agreement which existed between them. Whether he engaged him at a stipulated sum, or made an agreement with him to run the vessel upon shares, did not alter their respective relations in this particular, unless the de- fendant had given up to him, which he did not, all control of the vessel, and of her employment, and all immediate or direct interest in the freight earned by her. On the contrary, he re- tained and exercised the right to contract for her employment, so that the relation of master and servant was not severed between them. As respects third persons who might sustain injury from the unskillful or negligent management of the ves- sel, he stood in the relation of owner, and Thompson in that of master ; and it is well settled that an owner is, under such circumstances, responsible for an injury arising from the neg- ligence or want of skill of those who are entrusted with the management of the vessel (Duser v. Murgatroyd, 1 Wash. C. C. R., 13 ; Stone v. Keatland, ib., 142 ; The, Rebecca, Ware's K., 188 ; Abbott on Shipping, 228, 8th Lond. ed.). The judgment of the justice must be affirmed, but as tho question is an important one, and as both parties consent, the case, if desired, may be taken to the Court of Appeals. Judgment affirmed. 508 COURT OF COMMON PLEAS. Smith v. Butler. SAMUEL SMITH and ANDREW W. SMITH v. BENJAMIN F. BUTLER. Actions to recover compensation for injuries done to personal property may be maintained wherever jurisdiction of the parties can be obtained. In such cases the venue is transitory. The ruling in Molony v. Dows (8 Abbott's Pr. R, 316), distinguished from the present case. APPEAL by the defendant from a judgment at Special Term overruling a demurrer to the complaint. The complaint alleged that the plaintiffs were copartners in New Orleans on the 27th of May, 1862, and were then lawfully carrying on their business, &c. That on that day, in the city of New Orleans, the defendant, General Butler, unlawfully, with force of arms, with a multitude of people, surrounded the premises of the plaintiff, and took possession of their place of bus- iness, and removed their property from said premises, and took the same into his possession, and had converted a portion of the funds of their firm. That thereby their business was broken up, to their great loss and damage, &c. The defendant demurred to the complaint on the ground that the court bad no jurisdiction of the subject of the action, and that the complaint did not state facts sufficient to constitute a cause of action. The Court' overruled the demurrer, and the defendant ap- pealed. John K. Hackett) for appellant. Stanley, Langdell and Jfrown, for respondent. BY THE COURT. CARDOZO, J. The question presented in this case was carefully considered, and the authorities reviewed by Mr. Justice MONELL in the case of Mclvor v. McCabe, (26 How. Pr. R., 257) and I concur with the views there expressed. It may not however, be necessary on the present occasion, to review or deny the doctrine of Molony v. Dows (8 Abbott's Pr. R., 316), which was only a nisi prius case, but of course entitled to great respect as the ruling of a very learned and experienced Judge, because that case concedes that several NEW YOBK NOVEMBER, 1865. 509 Cannavan v. Conklin. cases in this country " authorize the conclusion that actions to recover compensation for injury done to personal property " (which is the present case), may be maintained wherever juris- diction of the parties can be obtained. In other words, that in such cases the venue is transitory. This is unquestionably the rule. (1 Chitty's Pleadings, 243; Com. Dig. N., 12 and Trover, 7 ; Glen v. Hodges, 9 Johns., 67, 69 ; Smith on Actions at Law, 78. Kerr on Actions at Law, 206. See also Harriott v. New Jersey Transportation Co., 2 Hilt., 262.) The judgment should be affirmed with costs. Judgment affirmed. GERALD CANNAVAN v. EDWARD E. CONKLIN, CHARLES SCHOLET cmd JAMES SHINDLEK, impleaded with HERMAN HESDORF. A party in the actual possession of a city pier is responsible in damages for injuries arising from its bad condition, irrespective of the question of owner- ship ; and in suits for such damages, the possession of the defendant being shown, the question of title does not arise. An agreement between A. and B., joint possessors of a pier, that ft. shall keep it in good repair is no defence to an action against A. by a third party to re- cover damages for an injury arising from its defective condition. The owners of a pier in the city of New York leased it to a third party, who agreed to keep it in as good repair as it then was, reserving to themselves a right to use and occupy as much of the pier as their business might re- quire ; and under this agreement continued to use the dock, Held, that this was a joint possession, rendering them jointly liable with their lessee for the death of a horse caused by the defective condition of the pier. APPEAL by the defendants Edward E. Conklin, Charles Scholey and James Shindler from the judgment of the District Court of the Seventh Judical District. The plaintiff brought suit against the defendants for the loss 510 COUKT OF COMMON PLEAS. ^ Cannavan v. Conklin. of a horse by falling through a pier at the foot of Forty-third street, N. R., in the city of New York. The accident occurred on the 24th November, 1864, and was shown to have occurred through the weakness of the supporting beams, while the plank- ing appeared to be sound. The appellants put in evidence an agreement between themselves and the defendant Hesdorf leasing the pier for seven months from October 1st, 1864, to the latter, '* he to keep the said dock in good repair as it now is, the said " Conklin & Co. reserving the right to use said dock, and occupy " as -much of pier as their business may require, and in case they same manner. Keither party was to contract any debt whereby the other should be bound, except with the personal assent of the party to be bound, and in .case of the sale or renewal of the patent, or of the taking out of another patent, each party was te have the refusal to pur- chase the same at the rate lonafide offered to another, and to have three days to make his election. The action was brought by the plaintiff to recover the amount of his advances to the defendants under the agreement, and also to recover damages for the conversion of the machine. On the close of the plaintiff's case, the defendants' counsel moved to dismiss the complaint, upon the ground that the plaintiff and defendant Mills were co-partners, and a partner could not sue his co-partner for damages, for the fraudulent removal of the firm property. The judge granted the motion, and ordered the complaint as to Samuel Mills to be dismissed. The plaintiff appealed to the General Term. John A. Godfrey^ and B. W. Huntington, for appellant. Lucius Piikin^ for respondent. BY THE COURT. DALY, F. J. There was nothing in the agreement between the parties to this suit creating a co-part- nership. To constitute a partnership inter se, there must be an agreement to share in the losses as well as in the profits, and there is nothing upon the face of this agreement from which it can be implied that the defendants were to bear any losses.' The plaintiff was tp pay for" the building of the machine, for which he was to be repaid from the receipts derived by the working or sale of it. If nothing were derived, he had to bear the loss incurred by this outlay, for there is nothing in the agreement showing that the defendants were to share the loss with him, or bear any part of it. It was an agreement by which he undertook to pay all the expenses of building a ma- chine, the earnings of which were to be proportionably divided between the three, after he was repaid the amount he had ad- vanced : and this will not constitute a partnership (Pattison v. 522 COUKT OF COMMON PLEAS. Cummings v. Mills. Blanchard, 1 Seld., 190 ; Rice v. Austin, 17 Mass. E., 206 ; Champion v. Bostwick, 18 Wend., 183, 184; Green v. Becsley, 2 Bing. K C., 108 ; 3d Kent's Com., 24 ; Collyer on Part., 9). That no partnership was created is conclusively shown by what was done under the agreement. The machine was built at the expense of four hundred and eight dollars and twenty- six cents. The defendants worked upon it, and the plaintiff paid each of them for their labor. He paid three hundred and fifty-eight dollars and twenty-six cents, being the entire cost of the labor and materials ; to which were added fifty dollars for the ue of his horses and wagons, and his own services, making altogether the above sum of four hundred and eighty-six dol- lars and twenty-six cents. The machine was then placed upon exhibition in a room on Broadway, the rent of which, forty-five dollars, the plaintiff also paid, and whilst there it was removed by the defendants, who sold it for four hundred and fifty dol- lars, with the understanding that that amount was to be equally divided between the two ; but Samuel Mills, bj whom it was sold, paid his brother George but one hundred dollars of the amount and kept the residue. George Mills, it would seem, sued his brother for his part of the machine, and then went to the plaintiff, and asked him to sue Samuel for using the patent. The plaintiff asked him " what machine he was talking about?" lie answered, " that machine of mine ;" upon which the plain- tiff said : " How came you to have anything to do with it. I paid every cent, I paid your last money, and you said I owned everything there was about it ;" to which the other replied : " They all went in to rob you, and I thought I should do so too." The plaintiff brought this action to recover damages for the breach of the agreement. A motitm was made to dismiss the complaint upon the ground that the plaintiff and defendants were co-partners, and the plaintiff's only remedy was by a suit in equity, which motion was granted. If the agreement had been that the defendants were to be paid for their labor in building the machine, out of the proceeds derived from the sale or the working of it, then there would have been a communion of loss as well as of profit; as in the event of the failure of the adventure, they would have had nothing for their labor. But, on the contrary, the plaintiff, in NEW YORK FEBRUARY, 1866. 523 Jacobs v. Morange. accordance with the terms of the agreement, paid each of them for their labor the same as if they were strangers ; so that in no event could there be any risk of loss on their past. Nor could any liability arise by which any one would be subject to loss by the act of the others, as, by the terms of the agreement, no one could contract any debt by which the other could be bound, except with the personal assent of the party to be bound. It was, therefore, simply an agreement for a division of profits in the event of success, and that would not make them partners inter se. The action was properly brought to recover damages for the breach of the agreement, and the plaintiff is entitled to a new trial. AAEON JACOBS v: HENKY II. MOKANGE. Where the review and reversal of a judgment by the ultimate appellant tribu- nal was a nullity, because the appeal was not taken in a way that entitled the Court to hear it, but for which the appellant was not responsible, Held, after nine years of acquiescence and repose by the party who recovered the original judgment, that he would be restrained by a Court of Equity from enforcing it, unless be consented that an appeal might then be brought with the same effect as if it had been brought within the time prescribed by law. Where a Court has not jurisdiction of the subject matter, the consent of par- ties will not confer it ; but a consent that an appeal may be brought after the time has elapsed for bringing it, is not liable to that objection. The appellate Court having the general power to review judgments upon appeal, such a consent does not confer it, but it is a mere waiver of the right to in- sist that the time has passed for bringing the appeal The extent to which a Court of Equity will go in staying proceedings upon judgments, commented upon and considered. APPEAL by the defendants from an order at Special Term denying a motion to dissolve an injunction. The facts are fully stated in the opinion of the Court. Henry 77. Mbranye, for appellant. Alex. Kursheedt, for respondent. 524 COURT OF COMMON PLEAS. Jacobs v. Morange. BY THE COURT. DALY, F. J. This is an appeal from an order denying a motion to dissolve an injunction. The -plaintiff, Jacobs, as the assignee of Leonora Roll man, brought an action in the Marine Court in the year 1S55, against the defendant Morange, to recover the amount of a judgment, which. Mrs. Rohman had obtained against the sher- iff, and which Morange had collected as her attorney. Morange set up a counter-claim for professional services, and a judgment was rendered in his favor for sixty-six dollars. From this judgment, as entered up by the justice, Jacobs appealed* to this Court ; this Court having decided (Norris v. La Farge, 3 Abb. R., 314, n.), that under the peculiar phraseology of the Code, the appeal from the Marine Court to this Court must be from the judgment of the Justice, and that no appeal would lie from a judgment of the General Term of the Marine Court. The plaintiff therefore brought the* appeal in the only way in which, according to the decision of this Court, it could then be brought. It was heard before the General Term upon the merits ; the defendant Morange arguing it in person, and after full consideration we decided that the judg- ment should be reversed with costs, upon the ground that it was not warranted by the evidence ; and as the defendant Morange paid the costs, no judgment of reversal was entered. Eleven months afterwards, the Court of Appeals decided (The People on rel. of Debenetti v. Gale, Clerk of the Marine Court, 13 How. Pr. R., 260) that the decision of this Court was erroneous, and that we had no power to hear an appeal from a judgment of the Marine Court until an appeal was first heard and determined by the General Term of that Court. By this decision all the proceedings in this Court upon the appeal from this judgment were coram nonjudici and void, and as the time had then gone by within which the plaintiff could have appealed to the General Term of the Marine Court, he lost, without any fault on his part, the right to have the judgment reviewed in the only mode in which, by the decision of the Court of Appeals, it could be reviewed. Nine years afterwards, the defendant Morange, upon an affidavit that an execution upon the judgment had been re- turned unsatisfied, and that it had remained unpaid, obtained an order supplementary to execution from a Judge of this KEW YOEK FEBRUARY, 1866. 525 Jacobs v. Moramre. Court for the examination of the plaintiff Jacobs, upon which Jacobs brought the present action to enjoin Morange from proceeding to enforce the judgment, and an injunction to that effect having been obtained, Morange made a motion at the Special Term to dissolve it, which motion was denied. This is a peculiar case. It is not very probable that any case like it, or even analogous to it, will be found, in which the aid of a Coutf.of Equity has been asked. But the grounds upon which Courts of Equity stay proceedings at law upon judgments are of a broad and comprehensive character. The occasions upon which an injunction may be obtained for that purpose are, to use the language of STOBY, " almost infinite in their nature and circumstances," and this case, in my judg- ment, presents one of them. This Court was the tribunal of last resort to which the defen- dant could appeal from the judgment against him in the Ma- rine Court. He might have appealed to the General Term of that Court, but if he had, and the judgment had been affirmed there, he would, according to our decision, have cut himself off from any appeal to this Co.urt. He did, therefore, what was done in nearly all cases at that time, viz : brought his appeal directly to this Court, within twenty days after the recovery of the judgment. Being a Court of superior jurisdiction, and the general appellate tribunal of the Marine Court, he wished to have the benefit of its revision and judgment, and brought his appeal here in the only mode, according to our decision, in which it could be brought. The defendant, who is a lawyer, appeared upon the appeal, and argued it. He availed himself of the opportunity of presenting to the Court his views in sup- port of the correctness, of the judgment. The Court at a sub- sequent term expressed its unanimous opinion that the judg- ment was wrong, and ought to be reversed, and he, by paying the costs of the appeal to prevent the entry of a judgment of reversal, acquiesced in the validity and finality of the proceed- ings, and now, after nine years of repose, during which interest has been accumulating upon the judgment, he institutes pro- ceedings to enforce it. The power which the Court of Chancery assumed of staying proceedings upon judgments at law, in proper cases, by injunc- tion, had its foundation in the interdict of the Roman law 526 COURT OF COMMON PLEAS. , Jacobs v. Morange. which was introduced to prevent the undue exercise of rights (Instit., Lib. 4, tit. 15, 18 ; Story's Equity Jurisprudence, 868), and the general rule deducible from the exercise of this peculiar and delicate jurisdiction, was comprehensively stated by Chief Justice MARSHALL in these words : " Without attempt- ing to draw any precise line to which Courts of Equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment and of which the injured party could not have availed himself in a court of law, or, of which he might have availed himself at law, bnt was prevented by accident or fraud, unmixed with any fault or negligence on his part, or that of his a^ent, will justify an ap- plication " (The Marine Insurance Company of Alexandria v. Hodgson, 7 Cranch, 332 ; aud see to the same effect, Truly v. Warner, 5 How. U. S. R., p. 141 ; Story's Equity Jur.,. 887, 885). The grounds upon which this case may be said to rest .to bring it within this rule are : First, that the judgment is er- roneous ; second, that it is not iji the plaintiff's power to get it reversed at law ; and third, that his inability to do so has not arisen from any fault or negligence on his part. In Jarvis v. Chandler, (1 Turn, and Russ., 319), the sentence of an Admir- alty Court was stayed by an injunction where it appeared that new evidence had been discovered at a period when, by the practice of the Admiralty Court, it could not be received ; and though a Court of Equity will not relieve against a judgment unconscientiously obtained, where a party has, through his negligence, lost the opportunity of moving for a new trial (Dodge v. Strong, 2 Johns. C. R., 228 ; Smith v. Lowry, 1 Id., 320), yet it seems that it would be otherwise if he had no oppor- tunity to move for a new trial in the Court where the judg- ment was rendered (Knifony v. Hendricks, 2 Gratton's R., 212) ; and where a defendant in a j udgment lost his remedy by appeal, because he could not get sureties to prosecute it, being a stranger, it was held that relief would be granted in equity (Roberts v. Contrel, 3 Heyw. R., 220). It is, in the sense of a Court of Equity, against conscience to enforce this judgment after this Court, the appellate tribunal of the Marine Court, has upon mature consideration, unanimously declared that it was NEW YOKE FEBRUARY, 1866. 527 Jacobs v. Morange. wrong and onght to be reversed, though the appeal came before us in a mode that did not entitle us to review the judg- ment, and when it is now beyond the power of the plaintiff to have it reviewed in any shape. It may be said that he ought to have known the law as subsequently expounded by the Court of Appeals ; that he ought to have brought his appeal in the first instance, to the General Term of the Marine Court ; and if the judgment was affirmed, prosecuted an appeal to this Court, notwithstanding our decision that we would not entertain one. To hold that his omission to do this was, under the circumstances, an act of negligence, which must cut him off from all right to equitable relief, would, in my judgment be going too far. The injunction, I think, should be sustained and made per- petual, unless the defendant enters into a written consent that the appeal from the judgment may now be brought to the General Term of the Marine Court with the same effect as if it had been brought within thirty days after notice of the judg- ment, and be heard upon the return made by Justice BIEDSAI.L upon the appeal to this Court.. "Where the Court has not jurisdiction of the subject matter it cannot acquire it by the consent of the parties ; but the General Term of the Marine Court has jurisdiction upon appeal from a judgment of that Court, and the time within which the appeal may be brought, is a matter which can be waived (Heyer v. Burger, 1 Hoff. C. R., 17). Judgment accordingly. 523 COURT OF COMMON PLEAS. Hoyt v. The Sixth Avenue Railrond Company. WILLIAM A. HOTT v. THE SIXTH AVENUE RAILKOAD COMPANY. A statute declaring that railroad companies shall not charge more than three cents a mile for the transportation of a passenger and his ordinary baggage, under a penalty, does not apply to railroads in cities, composed of separate vehicles drawn by horses, unprovided with apartments for the safe keeping and transportation of baggage, the vehicles of which must stop at any part of the route where a passenger presents himself, or for him to leave when he wishes, the compensation for whose carriage cannot be adjusted by the standard of miles, but must be one fixed sum, whether he goes the entire distance or not ; but it applies only to railroads whose cars are propelled by steam, which transport passengers and their baggage from one fixed place or station to another, without stopping at any intermediate point, aud in which it is possible to adjust and fix beforehand the amount of fare to be paid from place to place. APPEAL by the plaintiff from a judgment of the Eighth District Court. The 'action was brought to recover the sum of fifty dollars forfeiture under the " Act to prevent extortion by railroad companies," passed March 27, 1857. The complaint alleged that on t lie fifteenth day of December, 1864, .the plaintiff became and was a passenger on one of the defendant's cars, in which he rode for less than a mile;, that for such distance the defendant's servant, the conductor of the car, asked of and received from the plaintiff, as fare, a greater sum than three cents, to wit., the sum of six cents. The justice rendered judgment fur the defendant, from which the plaintiff appealed to the Court of Common Pleas. J. M. Buckingham and Elbridge T. Gerry ', for appellant. John H. Platt and John Slossson, for the respondent. BY THE COUKT. DALY, F. J. In the year 1850 a general act was passed allowing the formation of companies for the purpose of constructing, maintaining and operating railroads for public use in the conveyance of persons and property (Laws of 1850, p. 311). In the year 1851, permission was granted to the defendants, by the Corporation of the City of Ne\V York, to construct a railroad from Chambers street to the present terminus of their route, which is within the city limits, upon the conditions, among others, that they should have cars with YOKK MARCH, 1866. 529 Hoyt v. The Sixth Avenue Railroad Company. all the modern' improvements, for the convenience and comfort of passengers ; that they should run cars every day both ways, as often as public convenience should require ; that the rate of passage for any distance should, not exceed five cents, and that no motive power, except horses, should be used below Forty- second street ; and in the same year, after this permission was given, the defendants were organized and incorporated under the general railroad act before referred to. By the 28th section of this act (subd. 9), it is provided that every corporation or- ganized under it shall have power to regulate the time and manner in which passengers, and property shall be transported, and the compensation to be paid therefor ; but that such com- pensation for any passenger and his ordinary baggage shall not exceed three cents per mile. By an act passed in 1857, it was provided that any railroad company may take for any frac- tional distance less than a mile, the legal rate of fare for one mile ;'and which act also declared that any railroad company which shall ask and receive any greater fare than that allowed by law, shall forfeit fifty dollars, to be recovered, together with the excess so received, by the party paying the same (Laws of 185T, vol. 1, p. 432). The plaintiff was carried as a passenger upon the defendants' road, from Fifteenth to Twenty-third street, a distance less than a mile, for which the defendants' agent asked and was paid by the plaintiff, six cents, and upon the ground that this was three cents more than is allowed by the statute referred to, the plaintiff brought this action to recover the excess and the penalty of fifty dollars. The statute, in my opinion, was not intended to apply to city railroads which are drawn by horses, but to those propelled by steam, which transport passengers and their baggnge from one fixed place to another, without stopping at any intermediate point between, which have an appointed time for the departure of a train, and fixed stations or depots, at which it stops, but at no other place, for the reception of or putting off of passengers and their baggage railroads which have, under this act, the power to regulate the time when and the manner in which passengers and property shall be trans- ported, as well as the compensation to be paid for carriage ot either, whilst a city railroad, like that of the defendants, may not regulate the time when they will carry passengers, but 34 530 COURT OF COMMON PLEAS. Hoyt v. The Sixth Avenue Railroad Company. must, by the conditions imposed by the City Corporation, rnn, 'during the day and night, as often as public convenience re- quires, and which, so far from regulating the compensation to be paid for the carriage of persons and property, do not en- gage to carry property at all, but carry passengers only at a sum fixed by the City Corporation. A city railroad is a mere omnibus upon rails. Like an omnibus it stops everywhere along its route, to enable passen- gers to come in or go out. It is not like the railroads to which the statute applies, intended for the transportation of a " passenger and his ordinary baggage." It has no apartment for the reception, safe keeping and transit of the trunks of the traveller ; but is composed of a number of separate vehicles run by horses, and provided only with seats for passengers. In the railroads contemplated by the statute, the distance from one stopping-place to the other is accurately known, so that it is possible to adjust and fix beforehand, according to the rule supplied by the statute, the exact amount which the traveller is to pay ; but this is not practicable or possible in the case of a city railroad like that of the defendants. It extends over a distance of about three miles, and its cars must stop to take in a passenger upon any part of the route at which he presents himself, and for him to leave when he wishes. It is not pos- sible, therefore, to adjust the fare he must pay by the standard of miles; to adjust and fix beforehand by an established tariff the amount he must pay from the point where the car receives him to the place where he gets off, and the only practicable course is to have one fixed rate of fare, which the passenger is to pay, whether he goes the entire distance or not, which is uniformly and necessarily the mode adopted in all similar con- veyances. It is these distinguishing features which make it very plain to my mind that city railroads, like the one operated by the defendants, were not designed to be embraced by the provision in question. But there is another consideration. The resolution of the Common Council, which constituted the license or grant under which the defendants obtained the right to construct and run their road, declares that the rate of pas- sage, for any distance, shall not exceed five cents, which must also be interpreted as meaning that that sum may be charged for anv distance, and this would be more than three cents a NEW YOEK FEBKUAKY, 1866. 531 In the matter of Hawley. mile, if the passenger is carried less than a mile. But the Legislature, by a general Act passed in. 1854, confirmed the grants, licenses, and resolutions under which the defendants road was constructed, which was a legislative recognition of the defendants' right to charge this rate of five cents for any distance. It is claimed that the resolution of the Common Council is to be regarded as a law allowing five cents to be charged, and that as the defendants in this case have charged six, they have incurred the penalty of fifty dollars by exacting a greater rate of fare than that allowed by law ; but I think, upon referring to the statute of 1857, the penalty there pro- vided for was meant to apply to the railroads whose compensa- tion is regulated by the standard of miles, as limited and fixed by the preceding Act of 1850. The question whether the de- fendants have the right to increase their fare to six cents is another question which is to be considered and disposed of in another case. The plaintiff has not put his right of action upon that ground, but has framed his complaint for a recovery under the statute. Upon that ground it cannot be sustained. The Justice decided correctly, and his judgment should be aifirmed. Judgment affirmed. In the matter of PATRICK HAWLEY, an applicant for naturali- zation. Before DALY, First Judge, at the, February Special Term, 1866. A man's residence is that place where his family dwells, or which he makes the chief seat of his affairs and interests. Before an alien can be naturalized he must have resided in the United States for five years next preceding the time when he applies to Ix; admitted a citizen. The repealing act of June 26, 1848, has not abrogated this provi- sion. 532 COURT OF COMMON PLEAS. In the matter of Hawley. An alien came to this country when he was of* the age of thirteen, and resided here till he was twenty - three years of age, when he returned to Ireland, the place of his birth, and where his parents resided, for the pur- pose of seeing his father, who was ill, but remained there seven years, dur- ing which time he followed his calling as a mechanic, Held, he had lost his residence in \his country though he may have intended to return and live in this country, and so expressed himself to his friends when leaving, and had declared his intention to become a citizen in the manner required by law. The applicant, Hawley, came to this country at the age of thirteen, and resided here until he was twenty-three years of age, when he declared his intention of becoming a citizen in the manner required by law. He then went to Ireland, in conse- quence of the illness of his father, expressing, however, to his friends and acquaintances his intention to return and live in this country. He remained in Ireland seven years, when he returned. to the United States in 1864, and 'lived for a little more than a year in the State of New York. He applied for naturalization. DALY, F. J. By the twelfth section of the act for the regu- lation of seamen on board of the public and private vessels of the United States, passed March 3, 1813, it was declared that no person who should arrive in the United States after that act took effect, should be admitted to become a citizen, who should not have resided within the United States for the continued term of five years next preceding hw admission, without being at any time during the said five years, out of the territory of the United States (Dunlop's Laws, p. 493). This last clause, " without being out, &c.," was repealed by the act of June 26, 1848, but this repeal did not affect the prior provision requir- ing a continued residence for five years next preceding the appli- cant's admission. The only effect of the change was to allow persons to be naturalized who had gone out of the territory of the United States, but still retained their residence therein. As the law stood before this repeal, it was decided in this Court, that a person visiting the Falls of Niagara, who had crossed to the Canadian side to look at the falls from that point of view, had been out of the territory of the United States, and could not be naturalized until the expiration of five years thereafter. Now, however, a person may be absent from the United States, and yet retain his residence, and the question in this case is whether Hawley, the applicant, can be regarded as being a NEW YORK FEBRUARY, 1866. 533 In the matter of Hawley. resident of this State during the period that he was absent in Ireland ; for unless the facts will warrant that conclusion, there has not been that continuous residence for five years next pre- ceding the applicant's admission, which the Act of 1813 re- quires. When Hawley left the United States at the age of twenty- three, he was an unmarried man. His father and mother were living in Ireland, and had never been in this country. He was a mechanic, having no fixed place of business, but worked at his trade wherever he found employment. The residence of such a person shifts with every change of place, for if he quits his employment in New York, and engages with an employer in New Jersey, he ceases to be a resident of this State, and commences to acquire a residence there. When Hawley left this country for Ireland, he no doubt intended to return here, and as he went there in consequence of the illness of his father, he probably contemplated nothing more than a temporary ab- sence. If it had been merely a visit to see his parents, and he had returned to this country within what would be deemed a reasonable time, under the circumstances, I should, in view of the intention he expressed when leaving, have regarded it as a continuing residence which had never been aban- doned. But he was absent for seven years, and it appears that during a portion of that time he worked as a me- chanic in Ireland, as he had done in this country. This last circumstance, coupled with his long absence, is decisive upon the question of residence. There are few questions that come up for the consideration of judicial tribunals, which it is more difficult to define than what will constitute a resi- dence. The best definition that I have ever been able to find, or which my own experience could suggest, and I have had a great deal, is that to be deduced from the Roman law ; that a man's residence is the place where his family dwells, or which he makes the chief seat of his affairs and interests (Dig. 50, tit. 1, 16, 20, 27, 203 ; Code, tit. 39, 7). Hawley was a native of Ireland. His parents lived there, and while he was there follow- ing his calling of a mechanic, it was, in the words of this com- prehensive definition, the chief seat of his affairs and interests. He lost liia residence here, and was, up to the time of his re- turn, a resident of Ireland. That was but little more than a 534 COURT OF COMMON PLEAS. In the matter of Scott. year ago, and until be has resided here five years from that time, he cannot, by the provisions of the Act of 1813, be natu- ralized. Application denied. In the matter of ROBEBT SCOTT, an applicant for naturaliza- tion. Before DALY, First Judge, at /Special Term, August, 1848. The residence of a seaman, if married, is the place where his family dwells, or if he has never been married, the place where his domicil was fixed when he first went to sea as a mariner. S., an alien, came to this country with his parents when he was three years of age, and lived with them hi the city of New York, until their death, when he shipped from the port of New York as a mariner, in an American vessel and for seven years thereafter he was employed exclusively and continu- ously as a seaman hi the merchant service of the United States ; Held, that he was to be deemed a resident of the United States, and of the State of New York, during that time, and was entitled to be naturalized. The applicant, Scott, came to this country from England, with his parents, when he was three years of age. They took up their residence in the city of New York, and he continued to live with them until their death, when he shipped, at the age of seventeen, as a seaman, from the port of New York, on board of an American vessel, and for seven years thereafter, and up to the time that he applied for naturalization, he had been employed exclusively and continuously as a mariner, in the merchant service of the United States. DALY, J. Scott acquired a residence in the United States after his parents had changed their domicil from Eng- land to this country. They fixed their residence in this city, and having brought him here with them, he had acquired a domicil and NEW YORK AUGUST, 1848. 535 In the matter of Scott. was a resident of this City when he first went to, sea as a mari- ner. From that time to the present he has been employed ex- clusively and continuously in the merchant marine of the United States. He has never been married, and the question presented is whether he has retained during these seven years the residence which he acquired in this State, or rather, has, within the meaning of the acts of Congress of March 3, 1813, 12, ch. XLII, and April 14, 1802, 2, ch. XVIII, re- sided for the continued term of five years next preceding his application for admission within the United States, and one year within this State. The clause at the end of section 12, of the act of 1813, " without being at any time during the said five years out of the territory of the United States," has been repealed by the recent act of the 26th of June, 1848, ch. 72, and the question presented is simply one of residence. Every man has what is called his domicil of origin, which is the place where his parents were domiciled at the time of his birth. It continues until he has acquired another, and revives if the acquired domicil has been totally abandoned without any intention of acquiring a new one, but not otherwise (Craigie v. Craigie, 3 Curtis's R., 435). Scott, as has been suggested, had acquired a domicil in this State, and cannot be deemed to have abandoned it while engaged in his vocation as a mariner upon the ocean. ULPIAN puts a case, wliich afterwards be- came a rule of the Roman law, that if a man goes upon a voyage to a place where he has to sojourn for some time, he does not acquire a domicil in that place, but preserves the domicil which he had in the country which he left (Dig., tit. I, 27, 3). The present case is within the reason upon which this rule is founded, and is even stronger than the case put by ULPIAN. Scott has sailed exclusively in American vessels, and the vessels of a nation, whether public or private, partake of the attributes, and in a certain sense, are to be regarded as a part, of the territory of the nation. While they are upon the high seas, and not within the limits of the territory of any foreign nation, they are under and subject to the jurisdiction of the country to which they belong ( Vattel, lib. 1, ch. 19, 2 ; lib. 11, chap. 7, 80; Groiius, lib. 11, ch. 3, 13; Ruther- fvrth Inst, vol. 1, ch. 9, 8, 9 ; Ortolan Regie* Internation- ales de la Mer, torn. 1, pp. 293, 298 ; Appendice Annexe, II, 536 COUHT OF COMMON PLEAS. Black v. The Sixth Avenue Railroad Company. p. 441 ; Wheaton on International Law, 208), and this being the case, a seaman who has acquired a residence in the United States, must be regarded as retaining that residence, as long as he continues to serve in the public or private vessels of the country. While away from the place where his residence was fixed, the ship, whether it is upon the ocean or in a foreign port, is his place of habitation. Its national character is de- noted by its flag, and it must, in such a case, for the purpose of residence, be regarded as a part of the territory of the nation. It is always difficult to lay down any general- rule upon the subject of residence, but I think it may be said in reference to a seaman, that if he is married, his residence is the place where his family dwells, and if he has never been married, that it is the place where his domicil was fixed when he first went to sea as a mariner (Guier v. O'Daniel^ 1 Binney, 34:9 ; Abington v. North Bridgewater, 23 Pick., 170, 177 ; Exparte Pasqualt, 1 Cranch Cir. 0. E., 243 ; Story on Conflict of Laws, 46). The domicil which Scott had in this State when he first shipped from this port, has been retained during the seven years that he has followed the sea. He is regarded, therefore, as having resided for the past five years in the United States, and in this State, and is entitled to be naturalized. GEORGE W. BLACK v. THE SIXTH AVENUE R. R. COMPANY. Where the proportionable amount of the tax on gross receipts of a railroad company, imposed by the U. S. Internal Revenue Law, which is allowed by the statute to be added to and collected with the fare of each passenger, is a fractional part of one cent, Held, that the company is limited to such fractional amount, and there being no coin in which it can be paid, the loss must fall on the company, and not on the passengers. APPEAL from the judgment of the Sixth District Court. NEW YORK FEBRUARY, I860. 537 Black v. The Sixth Avenue Railroad Company. The plaintiff brought an action against the defendants, a city Railroad Company, incorporated under a license from the Mayor, Aldermen, and Commonalty of New York, ratified by an Act of the legislature, for the carrying of passengers, and by that license or grant were restricted to a fare of five cents for each passenger. The Company having increased their fare to six cents, the plaintiff sued for fourteen cents, the sum of the ex- cesses of fare on fourteen trips, and for fifty dollars, the penalty under the provisions of the General Railroad Act, for an over- charge. The District Court gave judgment for the defendants on these facts, and the plaintiff appealed. George A. Black, for appellant. John H. Plait and John Slosson, for respondent. BY THE COURT. DALY, F. J. The question whether the de- fendants are liable to the penalty imposed by the Act of 1857, has been considered and disposed of in Hoyt v. The same defen- dants, decided at the present term. There is in this case another question whether the defen- dants have a right to increase their fare to six cents. It does not appear that the defendants derive their right to run a rail- road through the city from the General Railroad Act, under which they are organized, or from any direct grant of the Leg- islature to that effect, so as to bring them within the decision of the Court of Appeals in The People v. Kerr (25 How. R., 258). They appear to have acquired it by a grant from the Corporation of the city of New York, afterwards ratified by an act of the Legislature (Laws of 1854, p. 323), and they exercise it, consequently, subject to the conditions which the Corpora- tion imposed. One of these conditions was, that the rate of passage for any distance on the road should not exceed five cents, and they cannot lawfully charge more, unless authorized to do so by some paramount authority. This authority is as- sumed to have been conferred by the United States Internal Revenue Act, which imposes a tax of two and a half per cent upon the gross receipts of all railroad companies, and declares that they shall have the right to add it to their rates of fare. (Laws of the U. S., 1864, p. 286). But the difficulty in the defen dants' case is, that the rate of fare to which they are limited 538 COURT OF COMMON PLEAS. Grinnell v. Buchanan. by the condition imposed by the City Corporation, is so small that it is not possible to add to and collect with it the propor- tionable amount of the tax, which is about one-eighth of a cent ; and to add one cent to the fare of each passenger would be adding and collecting eight times as much as the amount of the tax, for which there is certainly no authority in the Act. All that can be said of the Act is, that it allows the tax to be added to and collected with the fare if it is possible to do so, and that, in this particular case, it is not, as the proportionable amount of the tax is but the fractional part of a cent. It is a maxim of the law that, when anything is granted, all the means to attain it, and the fruits and effects of it, are granted also (Sheppard's Touchstone, 89). But it would be carrying this maxim too far to hold that because a party is entitled to collect a tax out of the fare of passengers, he may resort to a means by which he collects eight times as much. The defendants may be enabled possibly to devise some other mode by which the two and a half per cent, may be obtained, or if they cannot, they must lose it, for the reason that this particular provision in the statute is not operative in their case. The plaintiff has so framed his complaint as to entitle him to recover fourteen cents independent of the statute, for exces- sive fare charged upon different occasions, and judgment should have been in his favor for that amount. CARDOZO, J., dissented. Judgment reversed. INCREASE M. GRINNELL v. ELIZABETH BUCHANAN and others, executors of EGBERT S. BUCHANAN, deceased. The rule that an agent or trustee cannot confer upon another the right to dis- charge the trust or duty created by his appointment, applies only where the act to be done involves personal trust and confidence, or calls for the exercise of the agent's discretion or jugdment; a mere ministerial or executive authority may be delegated by an agent to another. ]STEW YORK MARCH, 1866. 539 Grinnell v. Buchanan. Where A. agreed with B., that if within a fixed time B. should make an ar- rangement for the taking down of certain houses, he would pay B. a sum of money, which sum was to be paid as a bonus to the party taking down the houses, and the arrangement was made, Held, that the agency of B. to re- ceive and pay over the money, was not one involving personal trust and confidence, and might be assigned. EeXd further, that this arrangement having been made, and its stipulations performed by C., the amount to be paid by A. was simply a debt, oil which a right of action remained in B., to be prosecuted for the benefit of C., and which might be assigned by B. to the party beneficially interested. The effect of Considerant v. Brisbane (22 N. Y., 389), considered and dis- cussed, per DALY, F. J. The Code having abolished the distinction between actions at law and suits in equity, and left but one form of procedure, that form of proceeding is to be preferred which is the most direct, consistent and comprehensive. Hence, where at common law the suit would have to be brought in the name of the trustee, for the benefit of the cestui que trust, while in equity it might be brought directly by the latter the equitable form is to be preferred. APPEAL by the defendant from a judgment at the trial term, entered upon a verdict for the plaintiff, directed by the Court. It appeared upon the trial, that Robert S. Buchanan in his lifetime entered, with others, into a written agreement with Raynor and Perry, to pay into their hands the sum of one hun- dred dollars, provided they should, within three months from the date of the agreement, effect an arrangement by which cer- tain tenement bouses in Forty-fourth street should, within nine months thereafter, be taken down, and replaced by first-class dwelling houses ; which sum, by the terms of the agreement, was to be paid by Raynor & Perry, as a bonus to the party or parties who should within the nine months remove the ten- ement houses and erect first-class dwelling houses in their stead. Within three months Raynor & Perry effected such an arrangement with Bebee & Brother, and within the nine months, Bebee & Brother caused the tenement houses to be taken down, and first-class dwelling houses to be erected in their place. Having thus, by the performance of the condi- tions, become entitled to their one hundred dollars, Bebee show how it was lost or injured. These reasons do not apply to telegraph compnnies, and they arc not held to the responsibility of insurers for the correct transmission find delivery of intelligence. As the value of their service, however, consists in the 548 COURT OF COMMON PLEAS. De Rutte v. The New York, Albany and Buffalo Telegraph Company. being correctly and diligently transmitted, they necessarily engage to do so, and if there is an unreasonable delay, or an error committed, it is presumed to have originated from their negligence, unless they show that it occurred from causes for which they are not answerable. The causes which will excuse them commented upon and considered. They may qualify their liability to the effect that they will not be answerable far errors unless a message is repeated, but this condition must be brought home to the knowledge of the person who brings the message for transmis- sion. Where a telegraph company is paid the whole compensation for the transmis- sion of a message to a place beyond their own lines, with which they are in communication by the agency of other companies, they will be regarded as engaging that the message will be transmitted to, and delivered at that place, unless there is an express stipulation to the contrary, or the circum- stances are such as to show that the understanding of the contracting par- ties was otherwise. Where a merchant in San Francisco receives a telegraphic message from New York, which leads him into a purchase involving inevitable pecuniary loss, which would not have occurred but for an error made in the transmis- sion of the message, he is not compelled to seek through an extensite chain of telegraphic communication to ascertain where the error was made, but the company to whom the message was originally given, and to whom the whole compensation was paid for its transmission, is answerable. Having peculiar facilities the obligation is upon it to ascertain where and when the error oc- curred, and to fix the ultimate responsibility where it properly belongs. The defendant's line of telegraph extended from New York to Buffalo, where it connected with other lines and a pony express to San Francisco. The defendants received the entire compensation for transmitting a message to San Francisco, which was correctly sent by their own line and by the con- necting lines as far as St. Louis, but an important mistake was made be- tween that point and San Francisco, Held, as nothing was said about the defendant being answerable only for the correct transmission of the message along their own line, as they received the whole amount that was asked to send it to San Francisco, without communicating by what lines it would be sent, or any other particulars as to the mode or manner of its transmission, that they took upon themselves the whole charge of sending it, and were answerable for the error. Independent of any question of contract, if a person is put to loss and damage through the negligence of a telegraph company in transmitting to him an erroneous dispatch, the company would be liable to him in an action for negligence, and if they received the whole compensation for sending it, they would be liable in such an action though the error was made by one of the companies through whom they transmitted it. The plaintiff's agent in Bordeaux obtained from a commercial house in that city an order for the plaintiff, a commission merchant in San Francisco, to NEW YORK MARCH, 1866. 549 De Rutte v. The New York, Albany and Buffalo Telegraph Company. purchase for them and ship from San Francisco, a cargo of wheat, at a cer- tain price. The plaintiff's agent prepared a telegram in these words : " Ed- ward De Rutte, San Francisco. Buy for Callaf den & Labourdette, bankers, a ship load of five to six hundred tons white wheat, first quality, extreme limit twenty-two francs the hectolitre, landed at Bordeaux ; same conditions as the Monod contract. Th. De Rutte," which the plaintiff's agent sent in a letter to a commercial house in New York with instructions to send it to the plaintiff at San Francisco in the quickest manner, and to charge the expense to the plaintiff. The house in New York sen tit by their clerk to the defendants' office, who paid to the defendants the entire compensation for its transmission by telegraph to San Francisco. When delivered to the plaintiff in San Francisco several errors had been made in its transmission, the most important of which was a change from twenty-e the sum which the plaintiffs lost by not having the property 530 COURT OF COMMON PLEAS. Bryant v. The American Telegraph Company. attached, namely, twelve thousand dollars, less the five hun- dred dollars which, they had collected, with interest, from the day when the telegram was sent. The property was sold after- wards for twelve thousand dollars and twenty-five cents, and this was-making the value of the property to the extent of the plaintiffs' debt the measure of the damages, which was, I think, erroneous. It was implying that if this delay had not taken place in the delivery of the message, the attach- ment would have been made before Bennett returned to the State, and that if that had been the case, the plaintiffs would have obtained their debt. This was assuming many contingencies that might or might not happen, viz. : that the attachment would have been issued and levied in time, that all the proceedings upon it would have been regular, that the plaintiffs would have obtained a judg- ment, and that twelve thousand dollars would have been col- lected upon the execution and paid to them, in satisfaction of their debt. All this might have happened, but that it would, was not sufficiently certain to warrant the assumption of all these circumstances, as a basis for the measure of damages. It was, as Judge STOEY remarked in the case of The Schooner Lively (1 Gallison R., 314:), " a calculation upon conjectures and not upon facts." The plaintiffs have not lost anything which they ever pos- sessed. They lost the chance of availing themselves of a newly discovered and extraordinary means of transmitting intelligence which, in their case, had their message been delivered as they wished, might have enabled them to take advantage of the circumstance of the temporary absence of their debtor, and attach his property for the amount of their debt. Assum- ing that that would have been done had their message been delivered immediately after its arrival in Providence, the only conclusion which it would warrant would be simply that they lost such security for the collection of their debt an would be afforded by the issuing and levying of an attachment, but every- thing beyond that was mere matter of conjecture. For all that was known to the jury, the debtors may have had a defence to the claim in whole or in part. It does not follow because an attachment is procured that a judgment will also be obtained ; yet that presumption has to be drawn in this case to warrant NEW YORK MARCH, 1866. 5S1 Bryant v. The American Telegraph Company. the still further presumption, that the plaintiffs lost their debt because they did not obtain the attachment. The plaintiffs' debt has not been extinguished or discharged. They cannot be said to have lost it absolutely, as long as Ben- nett and the other three members of his firm remain Uable for it. They were discharged as insolvents in Massachusetts, but that discharge is confined to that State, and does not exempt them from liability in other States or countries. They may all be insolvent now, and unable to pay, but this would not warrant the presumption that they will always remain so. In the con- tingencies of human affairs, any one of them may become pos- sessed of property hereafter, and be compelled to pay this debt within the period during which it will sufvive as an existing obligation against them. It is suggested that if the defendants should pay this verdict, they would, having paid the plaintiffs' debt, become subrogated to all the rights which the plaintiffs had to it, and would be entitled thereafter to maintain an action against the debtors for its recovery. Where a surety, to discharge his own responsi- bility, pays the debt, or where a party having an interest in land, for his own protection pays off an incnmbrance, he takes the place of the former creditor, or as it is expressed in the law, is subrogated to all his rights in respect to the debt, and may enforce the payment of it (Hayes v. Ward, 4 Johns. C. R., 123: Sandford v. McLean, 3 Paige, 117; Jenkins v. Conti- nental Ins. Co., 12 How., 66). But I do not deem it necessary to inquire whether the defendants would come within this rule or not, if they should pay this verdict, as the point is wholly immaterial to the question now before us. We are to decide what is the proper measure of damages, and that is a question which must be determined by the contract alone. In the recent work of Mr. Mylne upon damages, he remarks that in the case of contract, the measure of damages is much more strictly confined than in cases of tort, and that to hold a party who fails to perform a contract responsible for all that the other party ultimately hoped to get by it, or which it is possible he might have obtained, would be to make him an in- surer without any premium for undertaking the risk, and upon the well-considered case of IIadls- lerger v. The Magnetic Telegraph Company (32 Barb. B,., 530), that the damages are such as appears to have been contem- plated by both parties when the contract was entered into. Mylne on Damages, 6, 15. In deciding the case of Hadley v. jBaxendale,supra,T$&TOT\ ALDERSON said: " If the special circum- stances under which a contract is made, are communicated and known to both parties, the damages resulting from the breach of it, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of the contract under the special circumstances so known and communicated. ' Bift on the other hand, if these special cir- cumstances were wholly unknown to the party making the contract, he, at most, could only be supposed to have had in his contemplation the amount of injury which would arise gener- ally, and in the great multitude of cases not affected by any special circumstances from such a breach of contract." In the present case, the circumstances known or communi- cated to the defendants when they made the contract, will not warrant the conclusion that they undertook to deliver the mes- sage with the understanding that they were to be answerable for the amount of the debt if it should be lost through their failure to deliver the message immediately after its arrival in Providence, and unless such was the case, they cannot be said, within the meaning of this rule, to have contemplated a liability in dam- ages to that extent. They were under no obligation to enter into any such en- gagement. The plaintiffs, in view of the importance of time, and of the contingencies which might happen, had not been especially diligent. They knew of the presence of Bennett in this city before four o'clock in the afternoon, and yet nearly five hours were suffered to elapse before their attorney came to the defendants' office to have the message sent. It was then in the evening, and after the office had been closed for the or- dinary transaction of business, and if the plaintiffs failed to get their message delivered in time, it was owing to the late hour at which they brought it for transmission, and to a state of facts, very natural under the circumstances, existing at the of- fice in Providence, when the message was received. NEW YOEK MAY, 1865. 583 Bryant v. The American Telegraph Company: Brought to them at such an hour, and liable to such contin- gencies as upon this occasion did happen, the defendants were not bound to transmit and deliver it within a certain time that night, upon the understanding that they were to be answerable in the sum of twelve thousand dollars, if they failed to do so. They might certainly make such an agreement, but where the compensation was so small, and the risk so great, it will not be interred that they did, unless the circumstances clearly show that such was the understanding of botli parties. In a case before the Court of Queen's Bench, in Canada, (Kingshorm v. The Montreal Telegraph Co. Decisions by Eng- lish French and American Courts iipon Telegraphic Commun- ications, TTtica, N~. Y., 1863), the question of the liability of tele- graphic companies, in jdamages, for negligence in the transmis- sion and delivery of messages, came under consideration, and Justice McLEAN said : ' It is, in my opinion, extremely doubt- ful whether in any such case, a party who avails himself of the facilities afforded in communicating by telegraph, can expect that a telegraph company shall be responsible for all damages, no matter what amount, which may arise in the hurry of trans- mitting a message, from any verbal inaccuracy of an operator, or from an omission in forwarding or delivering it when received. It ought not to be expected that so great facilities are to be afforded for so small a remuneration, and at n risk that might bring ruin upon any company, if obliged to indemnify for every possible loss. Where parties desire to establish such a responsibility, it should be arranged with the telegraph com- pany or its agents, and then every information should be given as to the importance of the message desired to be sent." The promise of the clerk that the message thould be deliv- ered at once upon its arrival in Providence, cannot be construed into an express or special agreement on his part, that the com- pany would be responsible for this debt of twelve thousand dollars, if through their failure to deliver the message immedi- ately, the plaintiffs should fail in getting their attachment. If Biich a responsibility can arise only, as Justice MoLnAN suggests, where it is established by an arrangement with the company or its agents, and where every information is given to show the importance of the message, then there was wanting in this case, either any express arrangement to that effect, or such a dis- 584 COURT OF COMMON PLEAS. Bryant v. The American Telegraph Company. closure of the circumstances to the clerk as to wan ant the con- clusion that he knew exactly what would be 'gained if the at- tachment was made, or lost, if it should not be procured. He was not advised of the important fact that the firm of J. H. Sturdy & Co. were insolvent; that the house and lot of Ben- nett was unincumbered, and that if attached, it was of sufficient value to pay the debt, nor can he be presumed to have had a lawyer's knowledge of the time that would be requisite to make an attachment, and of the leg - al effect of it. These were all very material circumstances which should at least have been known to him, before it can be said that he undertook that his principals should be responsible for the debt, if through a delay in delivering the message, the plaintiffs should fail to get the attachment. The legal obligation of those who publicly engage in tho business of transmitting intelligence by means of electric tele- graph is, in some of its aspects, to be likened to that of common carriers, but there is a very material difference as to the ex- tent of their liability. In the case of the carrier, the package or property he is to carry is placed in his custody. He has for the time being exclusive control and dominion over it, and ne- cessarily knows if he fails to deliver it, that the value of it will be lost to the person who entrusted it to his care. But those who, like the defendants, undertake to transmit intelli- gence, do not necessarily know what may be the effect if the message should fail to reach the person to whom it is addressed, and should not be held answerable for all the possible conse- quences, unless it can be assumed from the circumstances disclosed to them, that they knew exactly what was depen- dent upon it, and what would be the result in point of dam- ages, if they failed to deliver it. If thus advised, they understand the extent and nature of the risk they assume, and may protect themselves against the mischances to which all human undertakings are subject, by making a special agreement as to the damages in the event of failure, and at the same time an opportunity is afforded them to require a compensation proportioned to the risk, as well as to exercise unusual vigilance ; -a very material consideration where a heavy liability may depend upon the delivery of a message within a limited point of time. If they are to be an- NEW YOKE MAY, 1865. 585 Bryant v. The American Telegraph Company. swerable for all the consequences of mischance and failure, they should certainly be informed of all the material circum- stances known to the party who avails himself of the facilities they afford, for they cannot be supposed to contemplate the happening of events, unless apprised of the facts which render their occurrence probable or possible. In Landsberger v. The Magnetic Telegraph Co. (32 Barb. R., 5^0), the plaintiffs agreed to purchase a quantity of pistols in New York, for a party in San Francisco. The pistols were to be shipped by the steamer of a particular date ; the plaintiffs were to have a commission for making the purchase, and were to forfeit five hundred dollars if they failed in performing the agreement. To enable them to execute it, they transmitted ten thousand dollars from San Francisco to New York, one of the plaintiffs expecting to reach New York about the time of the arrival of the money. He was unexpectedly detained, how- ever, upon liis route, and that the pistols might be purchased and shipped within the time agreed upon, lie sent a telegraphic message from New Orleans to his firm in New York, advising them of what was necessary to be done in the execution of the contract, and informing them where .they would get the ten thousand dollars. The telegraph company, in transmitting the message, made a mistake in the name of the plaintiffs' firm, in consequence of which, the message did not reach them until it was too late to perform the contract, whereby they not only lost their commissions, but had to pay the five hundred dollars according to the stipulation in the agreement. It was held that they could not recover either of these items as damages against the company, upon the ground, that as the telegraph company were not informed of the use that was to be made of the money, and of the consequences that would follow a delay in the receipt of it, they could not be presumed to contemplate any other damage from a delay in the delivery of the message except the loss of the interest upon the money, nine dollars and fifty -nine cents, which, with the sum paid for transmitting the message, was held to be all which the plaintiffs could re- cover. In the case now before us the clerk may be presumed to have understood that if the message was not delivered immedi- ately, the plaintiffs would lose the opportunity of getting the 586 COURT OF COMMON PLEAS. Bryant v- The American Telegraph Company. attachment, but Le cannot be supposed to have understood also, that that was the only means left to the plaintiffs for the recovery of their debt, and to have contemplated that if that failed through a delay in the delivery of the message, the plaintiffs would lose twelve thousand dollars, and that his em- ployers would have to pay it. Indeed, I think it may be fairly assumed, that if he had understood that the message was to be delivered immediately under such an onerous responsibility, he would either have declined at that hour of the evening to enter into any such engagement, or if he had entered into it, that he would have exercised extraordinary vigilance, and would have satisfied himself by further communication that it had been duly delivered. In Parker v. The Alia California Telegraph Company (13 Cal. R., 422), the defendants, through an accident, delayed for fourteen hours, to send a. message, by which the plaintiff's agent was directed to attach a debtor's property for a debt of one thousand eight hundred dollars, in. consequence of which delay, other persons obtained attachments, which absorbed the whole of the property. The Supreme Court of California held that the plaintiff might recover from the company the amount of the debt as damages ; and they ordered a new trial on that ground. All that I deem it necessary to say in respect to this decision is, that the Court do not support their opinion by any reference to adjudged cases, and that after giving it the re- spectful consideration to which the judgment of every superior tribunal is entitled, I am not satisfied of the correctness of the reasoning upon whicji it is founded. In my opinion, all that the plaintiffs could recover in tho present case, was what they paid for transmitting the message, and such expenses as were incidental thereto, and a new trial, in my judgment, should be ordered. BEADY, J. The telegram which the defendants undertook to transmit and deliver, was important, and on its face showed that its design was to secure the commencement of legal proceedings against the plaintiffs' debtors by attachment, be- fore the Stonington train entered the State of Rhode Island. The amount of the debt also appeared in the telegram. In ad- dition to this, the defendants' agent " was shown the importance NEW YOEK MAY, 1865. 587 Bryant v. The American Telegraph Company. of it," and he was told that it was to " make an attachment on property," and further, that unless the attachment was made before the Stonington train reached the Rhode Island State line, it would do no good at all. The plaintiffs' attorney not only paid the price asked for the transmission and delivery, but after showing the importance of the telegram, he said to the operator or agent of the defendants : " If there is any extra expense, or likely to be, about sending this dispatch right away I want you to tell me what it is, and I will pay it on the spot." The defendants must be regarded, therefore, as having been advised of the importance of the telegram, and being advised of it, to have contemplated the consequences that might ensue from a failure to transmit and deliver it. The compensation asked for assuming the performance of the service demanded, was paid, and any additional sum was offered, which would be necessary, or likely to become so, to secure the transmission and delivery desired. The defendants cannot avail themselves, therefore, of the principle, that their compensation was not com- mensurate with the risk incurred, assuming the risk to have been hazardous. It was not so, however. The line was work- ing well the communication was intact the operators em- ployed at either end of the route capable, the one of translating and the other of receiving the telegram, and it was transmitted without delay. The mischief done to the plaintiffs was occa- sioned not by the failure to transmit, but by gross negligence in the delivery of the message at Providence. The case is en- tirely free from any question of transmission. A few moments' attention would have averted all the loss the plaintiffs have sustained, and the litigation which has sprung up between the parties hereto. It the defendants are held responsible to the extent of the verdict herein, it may be burdensome, or it may bo a severe punishment for what seems to 'be a slight misfeasance when measured by the compensation given. But it must not be forgotten that no fraud was practiced upon the defendants. They were not asked to assume a responsibility not disclosed. The telegram was not only subject to their inspection, but explained in all matters relating to its object and importance. If the ad- ministration of justice requires that 'the judgment pro- nounced in this case should be maintained, it mint bo. We have nothing to do with effects. Was the judgment right ? 588 COURT OF COMMON PLEAS. Bryant v. The American Telegraph Company. "Was the measure of damages erroneous or not ? The proof es- tablishes that the attachment, if served, would have been a lien upon the house and lot of Bennett, one of the debtors of the plaintiffs ; that it could have been served if the defendants had delivered the telegram diligently after its receipt at Prov- idence ; that the house and lot which would have been covered and secured by the lien, was subsequently sold for about the amount of the plaintiff's claim ; that the debtor who owned it, and his associates, were insolvent, and went into bankruptcy, and that the debt claimed was due to the plaintiffs. The jury found, in accordance with this proof, and upon these facts the defendants are to be charged, if at all. They could not gainsay these facts, or any of them, and they .attempt to shield them- selves from the obligation incurred, by the doctrine that the damages claimed are conjectural, and not such as contem- plated by the contract when made. Is this true ? Let us see what was contemplated by the contract. The telegram and it's explanation contemplated an attachment on a house and lot to secure twelve thousand dollars, before the Stonington. train en- tered the State of Rhode Island, otherwise it would do no good, and that unless the telegram could be delivered immedi- ately, the attachment could not be secured. No other sugges- tion can dawn upon the mind, in view of this information, than that delay might wholly destroy the efficacy of the contem- plated process of attachment. " Ascertain in morning if mort- gage on the house on record ; if so withdraw attachment," a part of the telegram itself, in the absence of explanation, advis- ing the reader that the house and lot referred to would be made available if 'the process was served, and no mortgage was recorded against the property. In other words, the con- tract amounts in substance to this If you deliver that telegram right away I shall secure twelve thousand dollars in all proba- bility ; if you do not, I will not send it, because it will do no good. The defendants answer and say, It will be sent at once. The plaintiffs might fail in accomplishing the purpose of the tele- gram, it is true. Mr. Payne might be absent, leaving no per- son to represent him, but that would be the plaintiffs' misfor- tune, and not the liefendauts' fault. The latter have not shown that the attachment could not have been made the jury have found that it could. What is there conjectural up-- NEW YORK MAY, 1865. 589 Bryant v. The American Telegraph Company. on these facts in reference to the damages recovered ? This is not a case of profits. There is no doubt about the value of the house and lot. The contingency related to the service of the attachment, not to the damages. If that service could be made, then the result of it cannot be doubted. It is established by the evidence and verdict of the jury. That the debtors have not been absolutely and forever discharged from their indebt- edness to the plaintiffs, and that at some time, and in some place, in which the discharge obtained may not avail them, they may be able and be compelled to pay, is too conjectural to relieve the defendants of their liability. If the attach- ment had been served, the plaintiffs would not have been affected either by the bankruptcy or insolvency of their debtors, inasmuch as the property upon which a lien was. to be secured was sufficient to pay the debt. There is no evidence to show that a judgment might not have been obtained in that proceeding none that it is either complicated or difficult. It seems to be a very simple one, and that it could have been successfully pre- pared and set in motion is established by the jury, and that it would have been successful ultimately, must be inferred from the facts that no defence was shown to the claim, and that judgment was obtained for its amount. The damages shown are, for these reasons, such as may fairly be supposed to have entered into the contemplation of the parties when the con- tract was made, inasmuch as the defendants were advised of all that was necessary to make the contract appreciable. The importance of the telegram was shown by the plaintiffs' attorney, as already stated, and this could not have been done without explaining the circumstances surrounding the plain- tiffs' debtors, the necessity of priority in issuing the attach- ment, and that it should be served before the Stonington train reached the State line of Rhode Island. In the case of Parka v. Alia California Telepraph Co. (13 Cal., 422), the defendants were held liable for the amount of the plaintiff's debt, which he had lost in consequence of the negligence of the defendants in sending a dispatch directing an attachment to be served. In that case it appeared that owing to the delay in its delivery, other attachments had been served, and tho assets of the de- fendants exhausted in their application to them, to tho exclu- sion of the plaintiffs' claim, and it also appeared that the dcfen- 590 COURT OF COMMON PLEAS. Bryant v. The American Telegraph Company. dants were insolvent. The court in that case says : " It seems to us that the loss of the debt would be the natural aiid proxi- mate damages resulting from the breach of the contract." In Allen v. Suydam (20 Wend., 321), it was held that where the debt was lost through the negligence of the agent, the measure of damages prima facie is the amount of the bill, the defendant be- ing at liberty to show circumstances, it any exist, tending to mit- igate the damages, or reduce the recovery to a nominal amount. They have not shown any circumstances or mitigation. There is nothing in the case from which the conclusion may be justly drawn, that any part of the plaintiffs' debt can be collected from their debtors. The insolvency of the latter was sufficient to put the defendants to their proof, and in the absence of proof to the contrary, is conclusive evidence of the loss of the debt, taken in connection with the other facts and circum- stances of this case (Parks v. Alta California Telegraph Company, supra). For these reasons I find it impossible to resist the conclusion, upon a deliberate consideration of the facts of this case, that the loss of the plaintiffs' debt was the natural and proximate damages resulting from the failure of the defendants to deliver the telegram as agreed upon. It has not been thought neces- sary to consider the question of subrogation further than to state that the tender of the promissory notes of the plaintiffs debtors to the defendants, have placed the latter in a position to reap all the advantages of the debt. I think the judgment should be affirmed. Judge CAKDOZO concurred with Judge BEADY. Judgment affirmed. INDEX ABATEMENT AND REVIVAL. 1. An appeal from a judgment in de- fendant's favor does not abate by the defendant's death. Schuschard v. . Heimer, 459 2. The sole defendant in an action hav- ing obtained a judgment in his favor, died pending an appeal therefrom, proceedings on the judgment being stayed in the mean time, Held, that the personal representatives of such defendant have a right to have them- selves made parties to the appeal, and this should be done by motion to the court in the manner provided by 121 of the Code of Procedure. ib. 3. The cause of action in a replevin suit survives the death of the plaintiff, though not of the defendant, and the action may be continued in the name of the decedent's representatives ; in which case the sureties of the de- cedent OB the replevin bond continue liable. Lahey v. Brady, 443 4. The plaintiff in a replevin suit died pending the action, and the defend- ant procured an order against his ad- ministratrix that she continue the ac- tion, and obtained a judgment in the action against her by default, Held, that the action was properly contin- ued, and that the sureties of the plaintiir were liable upon their bond for the defendant's damages in the revived suit. ' ib. ACCOUNT STATED. 1. The defendant having pleaded an account stated, may elect to rely, up-|3 on the trial, upon the stating of the account, or he may fall back upon the accounts, and show that there is, in fact, a balance due him. Goings v. Patten, 168 2. It is not inconsistent with the de- fence of an account stated, for the de- fendants to furnish a copy of the ac- count upon which they meant to re- ly, in the event of their failure to prove the stating of an account, ib. 3. But the defendant having refused to deliver a copy of the account within the time which the Code allows after demand made, Held, that he will be deemed to have elected to rely upon the stating of the account ; and on motion, plaintiff is entitled to an or- der precluding defendant from giv- ing evidence of the accounts upon the trial. ib. See BAKES, 3. ACTION. , The defendant collected a sum of money tor S. with directions to pay the same to the plaintiff, Held, that this was equivalent to an express promise by the defendant to the plaintiff, to pay him such sum, and an action for money had and re- ceived by plaintiff was well brought. Held, further, that no consideration between plaintiff and S. need bo shown. Berry v. Mayhcw, 54 . Under such circumstances, it is no defence that another party claims the same sum, but the money should be paid into court, and such third party brought in by way of inter- pleader, ib. The master of a vessel has a lieu 592 INDEX. upon the freight and earnings of the vessel for the voyage, for advances and personal responsibilities necessa- rily made or incurred by him during the voyage, for the safety of the ves- sel, and the successful prosecution of the voyage ; and this lien is assign- able. Sorley v. Brewer, 79 4. The plaintiff paid an assessment im- posed on his property, which, by mistake of the collector of assess- ments, was credited to other proper- ty not ow"ned by him, Held, that plaintiff could not recover back the money as being paid by mistake. Purdue v. The Mayor, &c., 121 5. The plaintiff having paid his asess- ment, the same is satisfied, no matter what entry may be made on the de- fendant's books; and the plaintiff has his remedy to enjoin the de- fendants from selling the property for non-payment of the assessment, or he may compel the defendants to remove it as an incuinbrance or lien. ib. 6. In an action upon an undertaking given under section 356 of the Code, to obtain a stay of execution, after an appeal and affirmance, it is not proper to inquire at the trial wheth- er or not the appeal had been per- fected by the filing of the undertak- ing prescribed by section 354 of the Code. Sperling v. Levy, 95 7. It is sufficient that the undertaking sued upon is in pursuance of a. stat- ute requirement, that it was in the form prescribed thereby, and that it was given in a case contemplated by the statute. ib. 8. It is sufficient to establish the plain- tiff's right to recover in such an ac- tion, to prove the undertaking enter- ed into by the defendants, the rendi- tion of the judgment therein referred to, and the sheriff's return of the execution issued upon the judgment ( unsatisfied. ib\ 9. It is no defence that the execution issued upon the judgment, in the jus- tice's court was returned before the expiration of the sixty days. The reason which may have induced the sheriff to make such a return, or whether it was made upon the re- quest of the plaintiff in the action or not, is entirely immaterial, and not the subject of inquiry in such an ac tiou. ib. 10. The distinction between legal and equitable actions, and the difference in the mode of conducting them, pointed out. Smith v. Lewis, 452 See ARBITRATION, 4, 5. COUNTERCLAIM, 2. ADMISSIONS. See APPEAL, 1. EVIDENCE, 10. AGENT. See ATTORNEY & CLIENT. BROKER. CARRIER, 11, 12. COMMISSIONER. PRINCIPAL AND AGENT. MASTER AND SERVANT. CONSIGNOR AND CONSIGNEE, 2, 8. AGREEMENT. See CONTRACT. AMENDMENT. See JUDGMENT, 2. MARINE COURT, 3, 4. PRACTICE, 6, 7, 8, ANSWER See PLEADINGS. APPEAL. . Although, at the trial, evidence of certain admissions of defendant's agent may have been improperly ad- mitted, yet where it worked no in- jury to the defendant, the action be- ing abundantly sustained without it, Held, that, on appeal, it will be re- jected as immaterial matter, and the objection and exception to its admis- sion may be disregarded. Benedict v. Ocean Ins. Co., 9 2. Where, on an appeal from a judg- ment, by the defendant, to the Gen- eral Term, the facts were agreed on by the parties, and could not be varied by any evidence which might be adduced on a new trial, and a re- versal was had, Held, that final judgment for defendants should be given on such reversal. Peterson v. Walsh, 182 3. The question of care e brought with the same effect as if it had been brought with- in the time prescribed by law. Jacobs v. Morange, 523 5. Where a Court has not jurisdiction of the subject matter, the consent of parties will not confer it ; but a con- sent that an appeal may be brought after the time has elapsed for bring- ing it, is not liable to that objection. The appellate Court having the gen- eral power to review judgments up- on appeal, such a consent does not confer it, but it is a mere waiver of the right to insist that the time has passed for bringing the appeal. ib. 6. A motion cannot be entertained at Special Term to dismiss an appeal from an order made at Special Term. In such a case the motion to dismiss the appeal must be made at the General Term. A motion to dismiss an appeal from the Marine or Jus- tices' Courts to this Court, however, should be made at the Special Term. People ex rel. Larocque v. Murphy 402 7. An order granting or denying a motion to open an inquest cannot be reviewed on appeal by the General Term. Parish v. Gerties, 274 See DtsTKicr COUKTS. MAIUNE COUKTS, 8, 11. PRACTICE, 3, 4. APPEARANCE. 1. The appearance of an attorney out authority is a nullity. !> Mather, with- eeii executed, and hi* liability fixed, made an alignment lor the l>enpnt of his creditors, Jlfbl, that this did not affect the equitable right of tho other to set off his debt . ib. 7. A general assignee for the Iwncfit of creditors succeeds iiu-rdy to the 602 INDEX. rights of the assignor. He is not, in respect to the property transferred a bona fide holder for value, but takes it as a trustee, subject to any equities which may exist between the debtor and his creditors. tb. . An injunction to restrain the assig- nee from disposing of the evidence of the plaintiff's indebtedness, is a necessary part of the relief sought in such an action, and a motion to vacate it was denied. See DAMAGES, 1. COVENANT. See LANDLORD AND TENANT, 3, 4, 6. CUSTOM. See CARRIERS, 8, 15, 16, 17. SALES, 10. CUSTOM HOUSE. See CONSIGNOR AND CONSIGNEE, 9. SHIPPING, 2, 3, 4, D DAMAGES. 1. The amount of damages recoverable in an action brought for a sum fixed by agreement as liquidated damages may be reduced, by proving that a certain portion of the consideration expressed in the agreement has not been paid. For such portion the de- fendant has a cause of action arising out of the same transaction, and may set it off against the plaintiff's claim for damages. Baker v. C. 4. The appeal from a district court of the city of New York is to the Gen- eral Term of the Court of Common Pleas, in that city, and the provision of the act of 1862, authorizing a re- trial of cases tried in a Justice's court in a County court, does not apply to the city of New York. AJclOtenny v. Wasson, 285 5. Where the justice of a District Court renders judgment for the plain- tiff on conflicting evidence, the ap- pellate court will assume in respect to every point on which the testi- mony was conflicting, that the justice found in favor of the plaintiffs. Dayton v. Rowland, 446 6. The proceedings before a Justice, who loses jurisdiction by failing to INDEX. 603 render his decision within the sta- tutory time, are null, and constitute no bar to a recovery on the same cause of action in a subsequent suit. Bloomer v. Merrill, 485 See APPEAL, 6. v DOMICIL. 1. A married man having his family fixed in one place, but doing bus- iness at another, is deemed to have his residence at the former, and while his family so remain fixed, he cannot acquire a residence else- where. Roberti v. Methodist Book 1 Concern, 13 2. Although by reason of a prolonged absence from the State, a party might be proceeded against by at- tachment at the instance of a credi tor, yet he may be deemed a resident of this State for all other purposes, ib. 3. Thus, where a plaintiff had been absent from the State for more than two yeais, on business, but his wife and minor child continued to reside here, Held, that the plaintiff was not such a non-resident as that the Court would compel him to file security for costs. *5. See NATURALIZATION. DURESS. the transfer was voluntary, as the prisoner might have acted voluntari- ly, though impelled by fear of im- prisonment H>. 1. One who induces another to part with his property, " through fright and fear of being locked up," ob- tains no title, and the transaction is void. Sir-hards v. Vanderpoel, 71 2. Actual imprisonment is not necessa- ry to avoid such a transaction : fear of imprisonment is enough. ib. 3. Where the arrest was illegal, and the transfer was made through fear . of imprisonment, either to settle a civil suit then pending betweeu the parties, or to compromise the alleged felony, the result is the same, and no title passes. ib. 4. A charge that if the jury believed that the person arrested ''voluntarily gave to the defendant the watch in Question, then their verdict must l>e >r the defendant," Held, bad. The question how far the prisoner was affected by fear should have been submitted to the jury. It was not enough to submit to them whether E EQUITABLE RELIEF. See INJUNCTION. ESTOPPEL. A party is not concluded by every thing he may have said or done, even under oath. The doctrine of estoppel is confined within just and rational Jimits, and a party is not estopped unless he has gained some benefit or advantage by the act which is relied upon as an estoppel, or unless, by that act, the party claiming the benefit of the estoppel was induced to alter his condition. Smith v. Ferris, 18 . Thus, where the plaintiff filed notice of an ineffectual mechanic's lien, wherein he swore that the contract was made with the contractor, Held, that in an action against tho owner, the plaintiff was not estopped from showing that such contract was in reality made with the defend- ant, as owner. ib. EVICTION. Where there is no disturbance of ac- tual possession, or where the holding over by the landlord is not with the intent of keepinir the tenant out of possession, after he has become en- titled to it, there can l>e no pretence of an eviction. Vanderpoel v. Smith, 811 The plaintiff demised to the de- fendants a plot of ground for ten years, which they used as a lumber yard, reserving to himself, the right to occupy a email wooden building upon the land, for a year and a hair, and which he used for the storage of certain articles one day over the time, having received no intimation from the lessees of their intention or wish to use it. Upon that day they notified him of their intention to re- move, upon the ground I hut lie had broken the lease by withholding a part of the premise*, and Immediate* iy commenced removing, which oc- cupied them eighteen days, llcld, 604 INDEX. that there was no disturbance of the lessees' possession, as they had never been in occupation of the building, and as the holding over was with no design to retain it against their wish, it was simply an attempt to get up an eviction, and constituted no de- fence to an action for the rent. ib. See LANDLORD AND TENANT, 5. EVIDENCE. 1. The acts of a sheriff in the return of a process, so far as the rights of par- ties are concerned, must be taken as true when they arise collaterally, and can only be impeached by direct proceedings, to which the officer is a party ; or rectified upon a summary application to the court to correct or set aside the return. Sperling v. Levy, 85 2. Questions to a witness whether cer- tain representations alleged in the complaint were made " with intent to deceive or mislead ;" and whether in his representations, " he spoke and acted in good faith, and in the belief that what he said was true, Held, properly excluded. Bollard v. Lockwood, 158 3. The registry of a vessel at the Cus- tom House is prima facie evidence to charge a person as owner, only where he is connected with its pro- curement, or in some way adopts it as his act. Bryan v. Bowles, 171 4. Where he actually procures such re- gistry, and makes affidavit stating that lie is owner, it is evidence to charge him, although it may be re- butted, ib. 5. "Where a bill of sale, absolute on its face, bore date June, 1856, and the registry pursuant thereto was made Decemhjer, 1857, evidence to show that the bill of sale was by way of mortgage, and did not take effect ab- solutely till the latter date, and that the vendee did not enter into pos- session until such later date, is prop- er, and should be admitted to rebut the presumption of ownership, in an action to charge the mortgagee as owner of the ship. ib. 6. The coercion of the wife which is supposed to exist in all cases of tort, committed by her in the presence or .by the direction of her husband, and for which the husband alone is pre- sumptively liable, is but a presump- tion of law, w,hich may be repelled by proof. Cassin v. Delaney, 224 . And where the evidence justified the referee in his conclusion that the wrongful act of the wife was volun- tary on her part, and was her indi- vidual act, and although in some re- spects done in the presence and com- pany of her husband, yet was not done by his command or coercion, Held, that the Court will assume as a matter of fact that the legal pre- sumption of coercion of the wife has been repelled by proof. ib. . A written contract may be inter- preted by the local customs in refer- ence to which it was made, and it is error to exclude evidence of such customs. . As between the lessor of a bulkhead and the lessor of the adjoining pier, evidence of the custom of the port is admissible to show how far wharfage is collectible for the use of the bulk- head, and to what extent for the use of the pier. Mangum v. Farrington, 236 10. Admissions are a species of evi- dence usually received with great caution from the ease with which they can be fabricated, and the lia- bility to misapprehend what was said ; but where a positive admission by the parties to the suit who are competent witnesses, is sworn to, and they neither contradict, qualify, nor offer any explanation of it, it then becomes evidence of a very satisfac- tory character. Hodden v. N. Y. Silk Mftg. Co., 888 11. Parol evidence is admissible to show that the consideration ex- pressed in an instrument under seal, and therein acknowledged to have been received, was not in fact paid ; subject to the restriction that such evidence shall not have the effect of defeating the instrument, so as to render it void for the want of any consideration. Baker v. Connett, 469 12. The answer of a witness that the consideration of a sale of chattels was a sum of money and " one hun- dred acres of land," is not open to objection on the ground that it gives INDEX. 605 the contents of a deed, of land not produced on the trial. ' Reynolds v. KeUy, . 283 13. The rule that questions arising up- on conflicting evidence must be left to the tribunal that hears the testi- mony, and sees the witnesses upon the stand, is inflexible, and the ap- pellate court cannot invade it mere- ly because it thinks the case war- ranted a different conclusion. ib. 14. As a general rule, parol evidence is always admissible to ascertain the nature and qualities of the subject to which an instrument refers. Vary V. Thompson, 35 15. And when evidence was excluded which tended to show that it was the understanding of both parties, when the lease was executed, that the se- cond or rear yards were intended to be, and were embraced hi it Held, error, and a new trial will be ordered. ib. 16. To entitle a written contract be- tween one of the parties and a third person to be admitted in evidence, its pertinency must be first shown. Smith v. Ferris, 19 17. The defendant on the trial testified that he had had no other conversa- tion with the plaintiff, than that sworn to by him. He then put in evidence a certain mechanic's lien proceeding, and rested. The plaintiff was recalled, and testified that he had had another conversation than that testified to by the defendant ; and then detailed such conversation relative to the mechanic's lien pro- ceeding. The defendant offered him- self as a witness to contradict the plaintiff's version of such conversa- tion, which offer the justice refused Held, error. The testimony proposed by the defendant was not to contra- dict his own previous testimony, but to obviate the effect of plaintiff s tes- timony as to the lien proceeding, ib. 18. A contractor failed to complete his contract, and the owner was com- pelled to complete the building. In an action by a sub-contractor against the owner for work and materials, for which a lien had been filled, purpose of showing that nothing was due to the contractor, and, conse- quently, nothing due to the plaintiff, as sub-contractor. ib. 19. It seems, that the plaintiff has a right to prove the ownership of the party charged, however numerous the re- cord-evidences are to the contrary, provided that those evidences were created for the purpose of defrauding him, or defeating claims arising under the lien law. Bailey v. Johnson. 61 See CONTRACTS, 6. COUNTERCLAIM, 4. LANDLORD AND TENANT, 2. w EXECUTORS AND ADMINIS- TRATORS. 1. Where a married woman authorized her husband to contract for work and materials for a dwelling house she was erecting upon her separate estate and for the repairs of other buildings also belonging to her estate, which contract was partially executed dur- ing her life, and was completed after her death, ZfeW,that her husband, to whom she had left a life interest in her estate after the payment of a cer- tain legacies, and appointed her ex- ecutor with power to manage, mort- gage or sell her estate, and to invest the proceeds as he should deem mo.-t advantageous for those interested, was not liable in his individual capac- ity for what was done under the contract either before or after the wife's death, that he was answerable only in his representative character as her executor, and having died without paying the debt, that the administra- tor of the estate with the will an- nexed was bound to pay the debt out of assets in his hand. Itibkt v. Walli*, 860 2. The rule that an executor, if he have sufficient assets, is liable to a third person who, as an act. of duty or necessity, has provided for the inter- ment or the deceased, is the same in the case of an administrator , and a person who defrays the necessary funeral expenses of an intestate, though before letters of administra- tion are granted, is entitled to l>e reim- bursed out of the assets which come in in the hands of the administrator. Rappdyea v. liustell, . 214 Held, that the defendant might prove on the trial what it had actually cost him to complete the building, tor the|3. An administrator, having UttUio 606 Ds T DEX. his hands, "who refuses or neglects to pay the funeral expenses of the in- testate, being requested to do so, is individually liable at the suit of the person who has been at the expense of the funeral. ib. 4. The plaintiff, an undertaker, super- intended the burial of an intestate having no friends or relations in the city. The defendant, as Public Ad- ministrator, afterwards took out letters, and having in his hands suffi- cient assets, refused to pay the plain- tiff's bill, Held, that he was individ- ually liable therefor. EXPRESS COMPANIES. See CAKRIERS. SALE AND DELIVERY, 3. FACTOR See BROKER. COMMISSIONS. PRINCIPAL AND AGENT. t FALSE REPRESENTATIONS. See FRAUD, 1, 2. FIXTURES. 1. In an action by a tenant to recover damages for the unlawful removal of fixtures during his possession of the premises, proof of a demand is unnecessary. And a judgment ren- dered for the defendant hi such an action, on the ground that no de- mand for the possession of the fix- tures had been shown, will be re- versed. Beardsley v. Sherman, 325 2. The adjustment of gas-fixtures to a gas-pipe is not such an annexation to the freehold as to make them a part of the realty, and subject to the operation of a grant thereof. Shaw v. Lenke, 487 FORMER ADJUDICATION. 1. The record of a dismissal of the complaint between the same parties in another court, for the purpose of proving a former adjudication, is in- admissible in evidence, unless it is shown that such dismissal was a judicial determination of the same point in controversy here. Smith v. Ferris, 18 2. A suit against a vessel in the United States Court for advances, is no de- fence to an action upon the lien of the master of the vessel on the freight, unless the plaintiffs had such lien at the time of the commence- ment of the action in rare. Sorley v. Brewer, 79 3. Where a claim has been interposed in a former action, by way of set off, and has been duly passed upon in such action, it is res adjudicate, and the former action is a bar to a new action by the defendant against the plaintiff hi the former suit. Rogers v. Rogers, 194 FRAUD. 1. In an action to recover damages sustained by reason of the fraudulent representations of the defendant concerning the credit and good standing of another, doing business under the designation of agent, it is wholly immaterial whether or not it is the understanding in mercantile circles that a person doing business under such designation is not re- sponsible. Ballard v. Lockwood, 158 2. And in such an action, it is immate- rial whether the plaintiff received any information as to the standing of the party from mercantile agen- cies, or whether the plaintiff was a subscriber to such agencies ; the question to be tried being whether the defendant made the statements untruly, and from bad motives. t&. See CONTRACTS, 4, 5, 6. LANDLORD AND TENANT, 17, 18. FREIGHT. 1. In the absence of a special agree- ment to the contrary, freight paid in advance may be recovered back, where, by reason of the capture or shipwreck of the vessel, or for any other cause, the goods are not car- ried to the place of their destination. And this rule of law cannot be con- trolled by proof of any usage to the contrary. Emery v. Dunbar, 408 See ACTION, 3. CARRIER, CONTRACT, 4, 6. ESfDEX. 607 H HARBOR MASTERS. See NEW YORK Crrr, 6, 7, 8. HUSBAND AND WIFE. See EVIDENCE, 6, 7. EXECUTOK AND ADMINISTRATOR, 1 LANDLORD AND TENANT, 7. MARRIED WOMAN. INFANTS. A minor who obtains property upon representations that he is of full age is liable in an action of tort, either lo recover the property back, or to recover damages upon the grounc that it was wrongfully obtained Eckstein v. Franks, 334 INJUNCTION. Where the plaintiff had made advan- ces for the benefit of a vessel, and had taken an assignment of the mas- ter's lien on the freight therefor, and the owners of the vessel were insol- vent, Held, a proper case for an in- junction, and the appointment of a receiver to collect such freight, not- withstanding the allegations of the answer and affidavits showed that the defendants had chartered the vessel from the owner for such voy- age. Sorley v. Brewer, 79 See APPEAL, 4, 5. COUNTERCLAIM, 8. INNKEEPER. 1. Where a guest at an inn is notified that he must put his baggage in a particular place, that it may be safe- ly kept, and he neglects to do so, the innkeeper is not liable in case of its loss. Wilson v. Halpin, . 496 2. A guest was lodged in defendant's inn, in a room with several other persons, without objection on his part. He asked the chambermaid if he might leave his baggage in the room, and was told by her to deposit it with the clerk at the bar, that be- ing the established regulation of the house. The guest placed his baggage under his bed, and during his tem- porary absence from the room it was taken, Held, that the innkeeper was not liable. #. See CARRIERS, 2. INQUEST. See APPEAL, 7. INSOLVENT. 1. The insolvent laws of a State cannot affect a creditor residing out of the State, at the time of the application for the discharge, who does not par- ticipate in the proceed bigs under such laws, even though his debt be a judgment recovered within such State. Lester v. Ghristalar, 29 2. And a resident of this State, by an assignment to him of such judgment after that discharge, acquires a valid and subsisting interest, which is not affected by the discharge. *&. . Whether a judgment recovered hi this State is a contract to be made or executed in this State within the meaning of the insolvent law Que- ry ? id. INSURANCE. . The words " privilege for $4,500 ad- ditional insurance," written in the body of a policy of insurance, Held, to work a waiver of a subsequent printed condition in the policy, re- quiring notice to be given to the in- surers of any other insurance (with- in the sum specified,) and to have the same endorsed on the policy. Benedict v. Ocean Ins. Co., 9 , The true intent and meaning is, that the insured may obtain further in- surance without notice to the compa- ny, and without affecting their policy or their liability upon it, provided such additional insurance does not exceed $4,500. ib. Where it is shown that the company prepared the policy of insurance aft- er a careful examination of the in- sured premises bv their own survey- or, and with a full knowledge of the nature of the risk, IfeM, that any misdescription of the policy was tho fault of the company, and the In- sured should not IHJ called upon to bear the consequences. tb. 608 INDEX. 4. A cellar is not one of the " stories " 2. The defendants having lost the of a building. 5. Where in a policy of insurance, al- though a " time policy," a geograph- ical track is declared, and the in- sured is specifically prohibited from entering certain ports, Held, that a voluntary voyage to any such prohi- bited port amounted to a breach of the warranty of the insured not to enter such ports, and that from that time the policy ceased to cover or protect the vessel. Day v. Orient Mutual Ins. Co., IS 6. Held further, that a permission to use one of the prohibited ports, in- dorsed on the policy, did not abro- gate the warranty in the policy "not to use foreign ports or places in the Gulf of Mexico." ib. 7. Held further, that the subsequent re- turn of the vessel in safety in no way revived or restored the original obli- gation of the insurers, and no action can be maintained for her loss after such deviation. See CONTRACTS, 8. INTERNAL REVENUE. 1. Where the proportionable amount of the tax on gross receipts of a rail- road company, imposed by the U. S. Internal Revenue Law, which is al- lowed by the statute to be added to and collected with the fare of each passenger, is a fractional part of one cent, Held, that the company is lim- ited to such fractional amount, and there being no coin hi which it can be paid, the loss must fall on the company, and not on the passengers. Slack v. Sixth Avenue R R. Co., 536 JUDGMENT. 1. An irregularity in the mode of en- tering up a judgment, is waived by an appeal from the judgment ; and after an affirmance upon the appeal a motion to set aside the judgment for irregularity will not be enter- tained. Mayor, &c. v. Lyons, 296 right to move to set aside the judg- ment, upon the ground of irregular- ity, the Court permitted the plaintiff to amend the judgment by entering it up for the penalty, that other suit- ors, if any, might be enabled to have the amounts recovered by them levied under the judgment. ib. 3. In an action against a constable's' bond in the city of New York, where it has been adjudged that the answer was frivolous, it is erroneous to en- ter up a general judgment for the sum mentioned in the complaint. Mayor, &c. v. Lyons, 296 4. Judgment should be entered up for the penalty of the bond, and the Court moved for an order, under the act of 1813, directing so much money to be levied upon the judgment as shall be sufficient to satisfy the debt or damages of the party aggrieved. ib. 5. In such an action the summons should be for relief, under subd. 2 of 129, of the Code. ib. 6. In an action against joint debtors or obligors where~all are named as de- fendants a several judgment cannot be given. Sage v. Nichols, 1 7. If, in equitable actions, all the ques- tions in controversy between the parties have been determined upon the hearing, and what remains is merely the machinery set in motion by the Court to carry its decision in- to effect, its decision is final. But if anything is left involving future liti- gation, the determination upon which might affect the ultimate ad- justment of the rights of the parties, the decision, decree or order made, is merely interlocutory. Smith v. Lewis, ' 452 See APPEARANCE, 2. APPEAL, 2. INSOLVENT, 3 MARINE COURT, 5, 6. PRACTICE. JURY. 1. The dimensions of a roof- being known, and the number and charac- ter of the rain-storms within a cer- tain period being shown, the jury have data upon which they may de- INDEX. 609 termiue the quantity of rain which was probably precipitated from the roof during that period. Tlwmas v Kenyon, 132 2. And a question to a witness as to the quantity of such rain is wholly scientific, and being put to a witness who was not shown to be familliar with the laws which govern the sub- ject, was properly excluded. ib, 3. Where a question stands doubtful upon an uncontroverted state of fact or where the facts will admit of eith- er of two conclusions, the solution oi the question should be left to the jury, and their determination is con- trolling and final. Place v. Mcllvain, 266 See PRACTICE, 5. CAKUIER, 7. JURISDICTION. See COSTS, 2, 3. LANDLORD AND TENANT. 1. A conveyance, in general terms, of a house, passes everything that be- longs to the house with it, and whether a thing is parcel or not, of the thing demised, is always matter of evidence. Gary v. T/tompson, 35 2. The plaintiff, by a sealed lease, rent- ed to defendant two houses, describ- ing them as " Nos. 162 and 164 Sev- . enth Avenue" Held, that parol evi- dence was admissible to show that a certain rear yard or lot passed with the demise of the two houses. ib. 3. Where a lease contains a covenant for renewal upon a rent to be fixed by arbitrators, and the covenant is silent as to the time when such arbi- trators shall be appointed, the cove- nant will be construed to mean that they shall be appointed a reasonable time before the expiration of the lease. Wells v. D6 Leyer, 89 4. A lessee, under such a covenant, having been notified that the lessor had appointed an arbitrator, and being required to appoint one on his 89 own behalf, before the expiration of the lease, and having failed to do so, has, at the option of the lessor, waived his right to such renewal ; and the landlord having given the lessee notice that he should require him to pay a rent of $200 this was held a new letting from year to year, and not a renewal of the former lease, ib. 5. An allegation in an answer to an ac- tion founded upon a lease, that the defendant made the contract of hir- ing, without knowledge that the premises had been previously occu- pied as a brothel, with the assent of the plaintiff, who fraudulently and with intent to deceive, had suppress- ed that fact ; and that having entered into the occupation of the premises, he and his family were so annoyed and insulted by lewd persons calling at all times during the day and even- ing to obtain entrance for improper purposes, that he could not quietly and peacefully enjoy the premises, and was thereby evicted therefrom by the wrongful acts of the plaintiff, Held, on a motion for judgment on the pleadings, no defence to the ac- tion. Upon a demise, the landlord is not bound to disclose to a lessee the uses to which the demised premises have been previously put, and in the absence of any express covenants in the lease, there can be none implied by which the lessor can be held as warranting the premises fit for the purposes for which they are rented. The landlord cannot be held liable for the conduct of strangers, and es- pecially when relief might be had against them on application to the police ; nor can the acts of strangers claiming under no title, produce an eviction. Meeks v. JBov-erman, 99 , 6. The covenant of quiel enjoyment ex- pressed or implied in a lease, only goes to the extent of engaging that the landlord has a good title and can give a free and unincumbered leuse of the premises demised. The acts of strangers, not claiming under any title, cannot in any sense be regarded as a breach of such covenant on the- part of the lessor. ib. '. A lease executed by a married wo- man, containing covenants on her part to pay the rent, and expressing no intention to charge her separate estate therefor, is absolutely void, 610 INDEX. and constitutes no bar to an action against the husband for use and oc- cupation. Vincent v. BuJder, 1G5 8. A tenant from month to month is under no obligation to make sub- stantial repairs. Johnson v. Dizon, 178 9. The lessor is bound to make such re- pairs as are necessary to make the premises secure and safe for the pur- poses for which they are rented ; and if its insecurity is known to him, it is negligence not to do so. ib. 10. The rule that tenant takes premises at his own risk (caveat emptor), does not apply where the premises be- come dangerous or uninhabitable by the wrongful act or default of the landlord. ib. 11. Where a stall was leased for the purpose of keeping a horse, and the tenant informed the landlord of a de- fect in the floor, and the landlord gave an explanation of it, and said he would attend to it, and, through relying on such explanation and pro- mise, in consequence of the insecur- ity of the floor, the horse was injured, Held, that this was negligence on the part of the landlord, and that the tenant might recover damages for such injury. ib. 12. Where a tenant remains in posses- sion after the expiration of his term, upon the assurance of the landlord that he will give him a lease for ten years at a stipulated rent, and quits the premises upon the landlord re- fusing to do so, there is no implied agreement for the payment of rent during the period of occupation. Oreaion v. Smith, 380 13. There must be some act of the par- ties from which the law implies an . agreement to occupy for a year, to create a yearly tenancy, and unless such acts can be shown, the law will not make a contract for them. ib. 14. The occupant paid rent for the first quarter at the rate to be fixed by the promised lease, and left before the expiration of next quarter upon the landlord putting up a bill announc- ing that the premises were to let, and on his refusal to execute and deliver the lease, Held, the occupant was not bound to pay rent for the por- tion of the quarter which he had oc- cupied. There was not, in such a case, that holding oyer which will create a tenancy from year to year, ' or that agreement for occupation which would be valid by statute un- til the 1st of May following; or which would entitle the landlord, un- der the statute, to a reasonable satis- faction for use and occupation, ib. 15. Although such parol agreement was void by the statute of frauds, the plaintiff is not entitled thereby to any advantage. The law will leave him to the consequences of an act, which, if injurious, he might have avoided. ib. 16. No contract is implied that a house is fit for habitation, as the tenant can examine it, and the landlord may know no more respecting it than it is in the power of the tenant to dis- cover for himself. But where the land- lord knows that a cause exists which renders the house unfit for occupa- tion, it is a wrongful act on his part to rent it without notice of its con- dition ; and where the tenant, after discovering the condition of the house, quits it, the landlord should not be permitted to |.ake advantage of his own wrong and enforce the contract for the payment of the rent. Wallace v. Lent, 481 17. A landlord rented a dwelling house to a tenant without disclosing the fact, of which he was aware, that there was a deleterious stench in the house, proceeding from some un- known cause, which rendered it un- fit for habitation. The tenant, ignor- ant of the circumstance, went into possession with his family, and in a very short time all the inmates of the house experienced the injurious effects of the stench, producing vom- iting, &c. The tenant attempted to abate the nuisance, but without ef- fect ; and after a month's occupa- tion, on the advice of his family phy- sician, quit the premises. Held, that the concealment, was a fraud on the part of the landlord, and that the tenant was justified in leaving, ib. 18. Even where fraud has been prac- ticed, a tenant, if he continues to oc- cupy the premises, must pay rent therefor, but after the discovery of the fraud, he is entitled to a reason- able time within which to repudiate the contract. *&. INDEX. 611 19. Thus where the tenant continued in occupation about a month, but did so under the assurance of the land- lord that the cause of the complaint should be removed, Held, that his continuance during that period was not of such a nature as to amount to an adoption of the contract, or to make the tenant liable for the pay- ment of the rent for the period while in actual occupation. ib. 20. The plaintiff was in possession of certain premises under a parol agreement with the owner that he should have a lease for five years af- ter May 1st following. The defend- ant having become the owner of the premises, the plaintiff agreed in wri- ting to surrender possession of them to him on the 1st of October preced ing said 1st day of May. on payment of $350, Held, 1. That the paro" agreement between plaintiff and first owner was valid, and gave the plain- tiff a right of possession until the 1st day of May thereafter. 2. That the plaintiff's agreement with the de- fendant was founded upon a suffi- cient consideration and was valid ; and the plaintiff having performed on his part, was entitled to compel a performance on the part of the de- fendant. To entitle plaintiff to recov- er the amount agreed to be paid on his surrender of possession, he was bound to show that he was ready and willing to surrender on the day agreed on, unless a strict compliance with the condition, on that day, was waived by the defendant ; and if such were the fact, it rested with the plaintiff to show it. Cogert v. D&rn, 259 21. What facts will show a waiver of strict performance query ? ib. 22. On the 1st of October, the defend- ant's agent came to the house to take the height of the buildings. He had not been instructed by the defendant to get the key, s.nd the plaintiff, in consequence of a violent storm that day, and because he could not get into the house he was going to, did not resume his effort until the next day, Held, that though the evi- dence of a waiver on the part of the defendant was slight, and perhaps doubtful, yet the Court below hav- ing deemed it sufficient, tlK judg- ment should not be disturbed. ib. 23. The statute of 1860, ch. 345, per- 3. It is the province of the Court, sit mitting lessees to surrender buildings rendered untenantable by the ele- ments, applies only where the injury or destruction occurs after the les- see's entry, and not where it exists at the time of making the lease. Bloomer v. Merrill, 485 24. A tenant informed his landlord that he should leave his premises on the 1st of January, and was told that if he did so, the landlord would let the premises on his account, and hold him responsible for the rent. Subsequently, the landlord sent a person to occupy the house, and the tenant moved out without further remark, Held, that this did not re- lease the tenant from his lease. ib. See ARBITRATION. EVICTION. LEASE. t See LANDLORD AND TENANT. EVIDBNCE, 15. LIEN. See ACTION, 3. INJUNCTION, 1. MECHANIC'S LIEN. SALE AND DELIVERY, 4. 5, 6,7. LIMITATIONS (STATUTE OF). 1. To revive a debt barred by the stat- ute of limitations, where no promise to pay is shown, but one is sought to be implied from an acknowledgment of the indebtedness, the acknow- ledgment should contain an unqual- ified and direct admission of a pre- vious subsisting debt, for which the party is liable, and willing to pay ; and the recognition must be unac- companied by any circumstance cal- culated to repel the presumption of an intent or promise to pay. Loomis v. Decker, 180 2. When the debtor, in a letter to the creditor, said, " I don't recollect when the bill was made, but if it is all right, I will make it satisfactory," and added that he had certain rail- road bonds, which he hoped would be accepted in payment, " as money was out of the question," Held, suffi- cient to take the case out of the stat- ute, ib 612 INDEX. ting as a jury, to find, as matter of fact, whether a new promise, under the circumstances, might fairly be implied, and a finding oy the Court in this respect, like the verdict of a jury, must be deemed final. ib. See PARTIES TO ACTIONS, 4. LIQUIDATED DAMAGES. See DAMAGES. M MARINE COURT. Q 1. Judgment may be rendered against one defendant alone in the Marine Court in cases embraced by section 136 of the Code, although that sec- tion does not apply to the Marine Court. Bollard v. Lockwood, 188 intermit or avoid by making an or- der for a new trial. Williams v. The Tradesmen's Fire Ins. Co., 437 6. An appeal from such a judgment, when entered, brings up only ques- tions of law, and the appellant can- not be heard upon the objection that the verdict was contrary to evidence. 7. There is no provision of law allow- ing a single judge of the Marine Court to hear a motion for a new trial, or providing for an appeal in that Court from an order either granting or denying such a motion. 2. The Court may at special term dis- miss an appeal from the general term of the Marine Court for irregularity. But if the proceedings are regular, the appeal must be heard at the gen- eral term, even upon a question of jurisdiction. WiUiams v. Tradesmen's Fire Ins. Co., 322 3. The Court will permit an amend- ment by which an appeal may be perfected, where notice of appeal has been served.. ib. 4. By section 354 of the Code, the no- tice of an appeal from the General Term of the Marine Court, must be served upon the respondent person- ally, and the undertaking for costs must be executed by the appellant himself. But where it appears that the appeal was taken in good faith, and notice of the appeal was served upon the clerk of the court below, and upon the attorney who appeared for the respondent on the trial be- low, Held, that it was within the discretion of this Court to allow the appellant to perfect his appeal, and amend his proceedings by serving a notice of appeal upon the respondent personally, and executing a new un- dertaking, ib. 5. It is the duty of a judge of the Ma- rine Court presiding at a trial by a jury to give judgment upon the ver- dict ; and this judgment he cannot The reversal of a judgment upon the ground that it is against the weight of evidence, and an order for a new trial by the General Term of the Marine Court, constitute a final determination, from which an appeal may be taken to the Common Pleas. ib. 9. The General Term of the Marine Court has the same power as the General Term of the Supreme Court to correct the entries of its own judgments and decisions. Harper v. Hall, 498 10. On a motion before the General Term of the Marine Court to dismiss an appeal thereto, for want of prose- cution, an order was erroneously en- tered affirming the judgment appeal- ed from, Held, that the General Term might, on motion, correct such order, so as to make it conform to the real decision of the CoXirt. ib. 11. An order of the General Term of the Marine Court dismissing an ap- peal thereto for want of prosecution, is not a final determination, from which an appeal can be taken to the Common Pleas. ib. MARRIED WOMAN. 1. A married woman who hires prem- ises in her own name, has an inter- est therein within the meaning of Laws of 1849, chap. 375, p. 528, and may maintain an action for a tres- pass thereon in her own name. Fox v. Dnff, 196 See NEW TRIAL, 2. PRACTICE, 1. INDEX. 61! MASTER AND SERVANT. 1. A. and B, separate contractors, con traded with the Ward School officers in the city of New York, with the consent and approval of the Board of Education, to build a brick school- house ; A. to do the carpenter's work and B. the mason's work. By the unskillful manner in which the ma- son's work was done, the wall fell in before the building was completed, injuring A.'s work and subjecting him to loss and damage. In an ac- tion brought by A. against the city corporation to recover for the negli- gence of ~B.Held, 1. That although the defendants were the owners of the school-house, they did not employ nor had they a right, under the school laws, to employ, B., and they were not, therefore, responsible for his negligence. 2. The principle of respondeat superior is not applicable in such a case. Treadwett v. Tlie Mayor, die., 123 2. An employer is not liable to one of his agents or servants for the negli- gence of another of his agents or ser- vants, unless he was at fault in the selection of the agent or in some , other respect. ib. 3. In the prosecution of a general en- terprise, the employer does not war- rant to each person who engages in the enterprise the competency of every agent employed, and cannot be made responsible, unless it is shown that he was guilty of a want of care in the selection of the person through whose neglence the injury occurred ; though it is otherwise upon grounds of public policy where the relation of master and servant or of principal and agent does not exist. ib. 4 A general agent or clerk employed to make sales of goods and require payment therefor, who obtains pay- ment of filse bills by fraud or deceit, Held, as acting within the scope of 10 his employment, and his principal is liable for the amount thus obtained ; especially where there is some evi- dence, however slight, that the agent paid the sum thus collected to his employer. Adams v. Cole, ^ 6. The powers exercised by the city corporation in reference to the Fin. Department, are conferred and em ployed exclusively for the public benefit, and the corporation cannot be held liable as a master for the wrongful acts of firemen. O'Meara v. The Mayor, &c., 425 6. The plaintiff, while standing on the sidewalk, was knocked down and run over by a fire engine in the charge of firemen, and which was running upon the sidewalk in viola- tion of a city ordinance, Held, that the city corporation could not be held liable for the injuries occasioned to the plaintiff by such negligent act. The mere fact that the firemen had at the time an engine in their possession by the authority of the Mayor and Common Council, did not create the relation of master and servant. ib. 1. In an action by a servant against his master to recover damages lor an injury occasioned in the course of his employment, by defective or unsuit- able machinery, it must appear that the machinery was in fact defective, that the injury was occasioned by such defect, and that the defendant had notice of it. Kunz v. Stuart, 431 8. Where, in such an action, the plain- tiff's own testimony is sufficient to justify a presumption that the acci- dent was the result of the negligence of a fellow workman of the plaintiff, a judgment of dismissal will not be reversed on appeal. ib. 9. Where a vessel was attached to a wharf by a line lying for most of its length beneath the water, and at such a distance from the wharf as to leave ample passage-way between it ami the wharf for vessels to pass to and fro, but no person was on deck to loosen the line or warn vessels at- tempting to pass, Held, negligence which rendered the owners liable for any damages resulting therefrom. Annett v. Foster, 502 . The relation of master and ser- vant between the owner and mas- ter of a vessel, and the liability of the former, as owner, for negligence in its manageme.it, does not cease unless the owner has given up all control of the vessel and of her em- ployment, and all imim-iliate and di- rect interest in the freight earned by her. Hence, where the agreement between the owner and master of a 611 INDEX. vessel was that the former should make contracts for, and receive, the freight, and pay wharfage, and the master should receive a share of the freight money, and pay all other ex- penses, and be allowed to select the kind of employment for the vessel, Held, that this was not such a sur- render of control as to make the mas- ter owner pro hoc vice, or relieve the owner offiability for injuries arising from negligence in the management of the vessel. >. 11. What acts will divest the owner of his responsibility for the manage- ment of a vessel, considered. ib. See PRINCIPAL AND AGENT. MECHANIC'S LIEN. 1. A contractor failed to complete his contract, and the owner was com- pelled to complete the building. In an action by a sub-contractor against the owner for work and materials, for which a lien had been filled, Held, that the defendant might prove on the trial what, it had actually cost him to complete the building, for the purpose of showing that nothing was due to the contractor, and, conse- quently, nothing due to the plain- tiff, as sub-contractor. Smith v. Fer- ris, 2. In an action brought by a sub-contrac- tor to enforce a lien claimed to have been acquired under the mechanic's lien law of 1851, it must appear by the complaint, 1. That labor and materials have been furnished in the erection of the building, in conform- ity with the contract made by the original contractor with the owner. 2. That within six months thereafter, a notice in writing, under the sixth section of the act, claiming a lien for work or materials thus furnished, was filed with the county clerk. 3. That at the time of filing the notice of lien, or subsequently, a pay- ment was due or has since become due from the owner to the contractor upon the original contract. 4. That the contracting owner had some in- terest in the property at the time the notice claiming the lien was filed. Bailey v. Johnson, 61 3. Where, in an action to enforce a mechanic's lien, the complaint fails in any of the foregoing requisites, a motion to dismiss at the trial is pro- per, and will be granted. t&. A bona-fide purchaser of the prem- ises before the filing of notice of the lien, cannot be " chargeable" with such notice. if). Where a sub-contractor is prevented from performing the whole of his contract with the contractor b> rea- son of the failure of the latter, and an assignment by him of the contract for the benefit of his creditors, Held, that he may acquire and enforce a lien for the value of his labor and materials performed and furnished up to the time when he was pre- vented. Henderson v. Sturgis, 336 6. Although at the time the sub-con- tractor filed his lien there was nothing due to the contractor, yet the latter having made an assignment with the consent of the owner, who de- tained from the contract price the amount of the lien, and the sub-con- tractor having, under an agreement with the assignee, completed his work, as contemplated by the orig- inal contract, Held, that the equities are with the sub-contractor, and a court of equity will apply the sum so detained hi satisfaction of his lien. 7. Where, prior to the filing of a notice claiming a mechanic's lien by a sub- contractor, the contractor in good faith and for a full consideration, transferred to a purchaser the right which he might thereafter acquire to any payments under the contract, Held that the purchaser succeeded to the rights of the contractor upon the contract, and that as against such purchaser, the sub-contractor, who knew, at the time of the making of his contract, of the existence of the assignment, acquired no lien. Oates v. Haley, 338 8. The only exception to the rule that the sub-contractor can acquire no lien, where at the time of filing the notice there is nothing due to the contractor, is the case of an assignment by the contractor of his property in trust for the benefit of his creditors. ib. 9. No lien attaches by the mere perfor- mance of work pursuant to the con- tract, but it is gained only by filing INDEX. 615 the notice prescribed by the statute, and until that notice is filed, the coutractor,while acting in good faith, may deal with and dispose of the in- debtedness which may accrue to him under the contract, as he may by law with any other maturing indebt- edness, ib. 10. A minister plenipotentiary of a foreign power is not exempt from the application of the mechanic's lien law of this State, as to any house or building which is not used as a mansion for purposes connected with his representative character ; and where exemption is claimed, it must appear by the proof that he is entitled to a suspension of the rule that the lex rei site controls. Byrne v. Herran, 344 11. Where, therefore, on a motion for an order to join issue on the merits, hi a proceeding to foreclose a me- chanic's lien, it does not appear that the building was erected by tbe de- fendant for his residence as such minister, Held, that the motion of joining of issue should be granted. ib. 12. Where the notice of lien under the mechanic's lien law stated that the materials were furnished in pur- suance of a written contract, Held, that extra materials which became necessary in consequence of defects in the spepifications of the written contract were covered by the notice. McAuley v. Mildrum, 396 13. A conveyance of premises by the owner and builder made before the filing of the notice of a mechanic's lien, but which, by an instrument executed subsequently to such filing, is shown to have been intended only as a mortgage, does not prevent the lien from attaching upon the equit- able interest of the owner at the date of such filing. ib 14. A mechanic's lien upon a building covers only the materials and work employed on the building referred to in the notice. ib. tbe 5 15. Where under a single contract, the lienor had furnished materials to owner equally for seven houses, and one of such houses had been con- veyed away by the owner before the filing* of the notice of lieu, UeU, that the lien was valid as a lien upon the remaining six houses, only for their proportionate part of the whole claim (sjx- sevenths), although some payments had been made by the owner on general account. \b. See COSTS, 1. ESTOPPEL, 2. EVIDENCE, 18. MORTGAGE OF CHATTELS. See CHATTEL MORTGAGE. NATURALIZATION. 1. A man's residence is that place where his family dwells, or which he makes the chief seat of his affairs and interests. Matter of Hawley, 531 2. Before an alien can be naturalized he must have resided in the United States for five j r ears next preceding the time when he applies to be ad- mitted a citizen. The repealing act of June 26, 1848, has not abrogated this provision. ib. 3. An alien came tf> this country when he was of the age of thirteen, and re- sided here till he was twenty-three years of age, when he returned to Ireland, the place of his birth, and where his parents resided, for the purpose of seeing his father, who was ill, but remained there seven years, during which time he followed his calling as a mechanic, Held, he had lost his residence in this country though he may have intended to re- turn and live in this country, and so expressed himself to his friends when leaving, and had declared his inten- tion to become a citizen in the manner required by law. ib. 4. The residence of a seaman, if married is the place where his family dwells or if he has never been married, the place where his domicil was fixed when he first went to sea as a mar- iner. Matter of Swtt, 534. 5. S., an alien, came to this country with his parents when he was three years of ane, and lived with them in the city of New York, until their death, when he shipped from the 616 INDEX. port of New York as a mariner, in an American vessel, and for seven years thereafter he was employed exclusively and continuously as a seaman in the merchant service of the United States, Held, that he was to be deemed a resident of the United States, and of the State of New York, during that time, and was entitled to be naturalized. NEGLIGENCE . 1. In determining what would or would not be negligence on the part of a child, six years of age, it is not to be understood that a child of that age is to be held to the same degree of caution, foresight and discretion that would be exacted from an adult. Honegsberger v. The Second Ave. R. R. O>., 89 2. If a child exercises the caution of one of its years, that is all that can be required of it. More would be impossible, and the law does not ex- act an impossibility. 3. A request to charge that it is negli- gence on the part of a parent to allow a child six years old to go alone in the streets, Held, properly refused. ib. 4. The defendant's ground was higher than the plaintiffs, and its natural slope was such, that the water rising from natural springs beyond, follow- ing the declivity of the ground, flowed into, and collected in a hol- low on defendant's lot, directly ad- joining the plaintiffs house. At the time plaintiff purchased his lot there was a drain and culvert, which car- ried this water off from the defend- ant's lot, -but which, before the com- mencement of this suit, had been cut off and filled up by owners of lots through which it had flowed. The water was thus thrown back upon the defendant's lot, and from thence flowed into the plaintiffs lot, Directly adjoining the plaintiff's house, and over it "or close to it, the defendant had built a lumber shed, the roof of which pitched towards the plaintiffs house, from which, when it rained, the water ran in the direction of the plaintiff's building. The plaintiff, on his part, had erect- ed wood sheds along the line of his own and defendant's lot, the roofs of 7 which pitched towards the defend- ant's lot, and the water which fell upon them when it rained was pre- cipitated upon the defendant's lot. The water thus collected by the nat- ural declivity of the ground and the cutting off of the water-course or drain, and by the roofs erected by both the plaintiff and the defendant, flowed into the plaintiffs lot, and frequently submerged the basement of his house, and washed away parts of its foundation, Held, 1. That, al- though the defendant could not be held answerable for the effect pro- duced by water flowing over b\s ground towards the plaintiffs lot, in consequence of the natural forma- tion of the soil ; yet, it appearing that the body of water on defendant's lot was greatly increased by the law- ful cutting off of the drain and cul- vert, and the filling in of adjacent sunken lots by their owners, obliga- tions were imposed upon the defeiid- ant in respect to his own lot, which, but for other causes, would not have existed, and Ire was bound to adopt reasonable means to prevent the wa- ter from collecting and remaining on his premises. 2. The fact that the pitch of the plaintiff's roofs tended to augment the body of water which did the injury, does not deprive him of all right of action for the injury he sustained by reason of the defend- ant's erection. Thomas v. Kenyan, Iij2 . The mutual or co-operating negli- gence which deprives one party of any right of action against the other, is where the act which produced the injury would not have occurred but for the combined negligence of both. ib. . Where the effect of the negligence of one party is to produce injury to a certain extent in any event ; that is, if its effect is to produce a certain amount of inj ury, even if the other party had been guilty of no negli- gence at all, then, though the negli- gence of the other party may have rendered the loss or injury greater than it would otherwise have been, still they are not the joint authors of all that has taken place; srvl it is possible to distinguish the amount of injury caused by the negligence of the one, from the amouni of inju- ry caused by the negligence of the other. ib. . And in such a case, the jury have a right to discriminate, and to hold a IXDEX. 617 defendant responsible for damages arising from causes with which the plaintiff had no agency. 8. A railroad company having under- taken to lay down a rail track along a street which is a public road, are bound to lay it down properly, and to keep it in a proper condition thereafter. It is a question for the jury to determine whether they have done so or not. Fash v. Third Ave. R. R. Co., 148 9. And where, by the sinking of the pavement, a spike in the rail was left exposed, with which the plaintiffs carriage coming in contact, the plain- tiff was thrown out and injured, Held, that the company was guilty of negligence, and the plaintiff might recover. ib. 10. It is wholly immaterial whether the projection of the spike resulted from the failure of the city corpora- tion to repair the street in the local- ity of the accident. The injury to plaintiff resulted from the defend- ants permitting the spike to project. ib. 11. Held, therefore, that the judge pro- perly refused to charge the jury that if the defect in the track was owing to the condition of the streets, or of the gutters alongside, the plaintiff could not recover. ib. 12. A refusal to charge the jury that if the rest of the avenue was open and fit for plaintiff's wagon, he could not recover for the defective condition in the pavement, Held, proper. ib. 13. A party in the actual possession of a city pier is responsible in damages for injuries arising from its bad con- dition, irrespective of the question of ownership ; and in suits for such damages, the possession of the de- fendant being shown, the question of title does not arise. Cannavan v. ConWn, 509 14. An agreement between A. and B., joint possessors of a pier, that B. shall keep it in good repair, is no de- fence to an action against A. by a third party, to recover damages for an injury arising from its defective condition. ib. 15. The owners of a pier in the city of New York leased it to a third party, who agreed to keep it in as good re- pair us it then was, reserving to themselves a right to use and occupy as much of the pier as their business might require ; and under this agree- ment continued to use the dock, Held, that this was a joint posses- sion, rendering them jointly liable with their lessee, for the death of a horse caused by the defective condi- tion of the pier. ib. See INNKEEPER, 1, 2. CARRIERS, LANDLORD AND TENANT, 11. MASTER AND SERVANT, 7, 8, 9, 10, 11. NEW TRIAL. . Although a new trial will not be granted on evidence merely contra- dicting the testimony on which the verdict proceeded, discovered subse- quent to the trial, yet where the facts, on which the witnesses for the prevailing party founded themselves are falsified by the affidavits pro- duced on the motion, it affords a sufficient ground tor ordering a new trial. Wehrkamp v. Willet, 4 . In an action by a married woman against the sheriff for taking certain personal property, claimed by her to be her separate estate, upon a judg- ment and execution against her hus- band Held, that her testimony on the trial tending to show her ability to purchase the property claimed, with moneys of her own, and inde- pendent ofher husband, was mater- ial to the issue. ib. , And where it is shown beyond dis- pute, by affidavit, on a motion for a new trial, that her testimony on that point was false, Held, sufficient ground for granting a new trial, ib. See DISTRICT COURT PRACTICE, 3. MARINE COURT, 7, 8. NEW YORK CITY. . A contract by the Si reel Commis- sioner, without the authority of the Common Council, according to 12 of the Charter of 1853, for the con- struction of a stone wall along the sides of a street, to protect the em- bankment, is in contravention of the . statute, if the whole work involves an expenditure of over 250. E&i* v. Tite Mayor, etc., IOC 618 INDEX. 2. The fact that the wall thus built was in four detached pieces, at wide in- tervals apart, for each piece of which the expense was less than $250, will not take the case out of the prohibi- tion of 12, it appearing that the wall was directed to be done at the 'same time, and was a continuous work. It must be regarded as falling within a single contract or direction of the Street Commissioner, and is therefore within the prohibition, ib. 3. The Street Commissioner, in order to protect a street embankment which was being built under his di- rection, ordered two basins to be built to carry the water from the surface of the street into the sewer, Held, that he had no authority to make any contract for the building of such "basin, and the contractor therefore could not recover. ib.\ 4. The Street Commissioner has cogni- zance of only that part of the street improvements which consist in their opening, regulating, and paving, (Charter of 1842, 12). The con- struction of basins connected with the sewers, and forming part of the means by which the underground drainage of the city is effected, is ex- clusively within the duties of the Croton Aqueduct Board. Charter of 1849, 15. ib. 5. The Street, Commissioner, though in some respects he may be regarded as the agent of the Corporation, is not, however, such an agent as can bind his principal, generally. He is an independent public officer, acting under special statutory authority, but controlled by the Corporation ordinances ; and therefore like one acting under special instructions, from which he cannot depart, and ot which parties dealing with him are presumed, and bound, to have know- ledge. He cannot bind the Corpor- ation except in respect to those acts which fall within his limited duties and authority. ib. 6. The harbor masters of the city of New York have full power to sta- tion and regulate vessels in the streams of the North and East Riv- ers, and also within the wharves of the city of New York. The Mayor. etc. v. Tucker, 107 7. The office of dock master, under the Corporation ordinance of 1839, ch. 84, was superseded by the various acts of the legislature creating and regulating the office of harbor mas- ters, ib. The act of 1853, " in relation to the police department of the city of New York," (Laws of 1853, p. 441), has been entirely abrogated by the me- tropolitan police act of 1857 ; and the provisions of section 6 of the former act, declaring the captains of police to be dock masters within their res- pective limits, do not therefore con- fer on captains of police any author- ity to act as such ; nor have the po- lice commissioners any power under the latter act to confer upon police- men any authority as dock masters. 9. The City inspector of the city of . New York, being authorized by a resolution of the Board of Health to employ the plaintiff's assignor *' to remove temporarily, or until further ' ordered by the Board or Common Council, all the contents of the sinks and privies of the city beyond the harbor," made a contract according- ly, fixing the rate of compensation, as directed by the resolution, at fifty dollars per week for the first six mouths, and forty dollars per week for the time after that period Held, That such contract was within the power conferred on the Board of Health by section 6 of the act of 1850, ch. 275, title 3, and section 27 of the act of 1857, 'ch. 446 ; and the Corporation was chargeable with the expenses arising from the employ- ment of the plaintiff's assignor. Heldfurflier, That it being compe- tent, by the terms of the contract, for the defendants or the Board of Health to terminate it at any mo- ment, it could not be deemed a con- tinuing contract, or as invading the powers of the Common Council as prescribed by the charter, to make contracts for the same work. Held furtficr, That such contract was not in violation of section 38 of the charter of 1857, requiring all contracts involving an expenditure of. over $250 to be founded upon sealed bids and proposals. 10. It seems, that the provfsions of section 38 of the charter of 1857 ap- ply only to contracts to be let by au- thority of the Common Council, and IKDEX. 619 were never intended to apply to the Board of Health. McLaren v. Mayor, etc. ofN. T., 243 11. The Courts have no power, in col- lateral proceedings, to inquire whe- ther the facts upon which a Board of Health determines a thing to be a nuisance justify its conclusion. ib. 12. A dwelling house is one designed to be occupied as a place of abode by night as well as by day, and which is constructed with special reference to that object, and as long as it is capable of being so used in whole or in part, it retains its specific charac- ter. Fire Department v. Buhler, 891 13. A building erected for a store or a warehouse does not become a dwell- ing house, though a place may be fitted up in it for a person to sleep in ; nor does one originally erected for a dwelling house cease to be such though a part of it has been convert- ed into a score. ' 14. A building, therefore, which was originally constructed as a dwelling house, and was occupied as such, though subsequently used in part as " a store," the attic being used by the clerks as a sleeping apartment, and in the basement of which there was ja bed-room, Held, to be a " dwelling house," within the mean- ing of sections 14 and 20 of the Fire Laws of the City of New York (Laws of 1849, ch. 84, p. 121) ; the roof of which might be raised and made flat without subjecting the owner to the penalty prescribed in the statute. 15. The members of the Fire Depart- ment of the city of New York owe their allegiance to the city, not as members of a corporation, but as members of an organization identi- fied with the administration of the city government, and forming a part of its protective police. O'Meara v. The Mayor, etc., 425 See MASTER AND SERVANT, 5, 6. PILOTS, NUISANCE. 1 See NEW YORK CITY. OFFICERS. , The authority of those who hold public offices under color of legal title cannot be disputed in a collat- eral proceeding. It can only be questioned in an action brought by the attorney general in the name of the people of the State. Code, 438. Tht Mayor etc. v. Tucker, 107 . One who is appointed to a munici- pal office, but who is unlawfully ex- cluded therefrom by a third person, who alone performs the duties of the office, cannot recover the compensa- tion allowed by law for such services without at least showing that he has taken every proper legal measure to obtain possession of the office. Smith v. The Mayor, etc., 219 PARTIES TO ACTION. . In an action against the owners of a vessel for supplies furnished her, where only one of the defendants is served, and it does not appear by the evidence that the other defendants are part owners Held, that there was a clear misjoinder of parties de- fendant, which the defendant served was entitled to take advantage of at the trial, and his motion for a non- suit should have been granted. Sager v. Nichols, 2. The plaintiff was arrested and im- prisoned at the instance of the de- fendant L. on the charge of embez- zlement. On the examination before the police justice, tbe plaintiff was discharged on the ground that tbe money alleged to have been embez- zled by him' was not the property of L. but of his wife. The defendant L. went for hia wife, who appeared and made her complaint, and the plain- tiff was detained until he procured bail, Held, in an action for the last arrest, that the wife being proved to have acted voluntarily and without the coercion of her husband, the hus- band and wife were properly joined as parties defendant. Cattsin v. De- laney, C20 3. Held, furtfier, that the damages aris- ing from the first arrest ought not to be^bleuded with those of the second arrest, and the referee having evi- dently done so, the Court, on appeal, will reduce the amount of the judg- ment, or reverse it. to. 4. A plaintiff cannot anticipate that a person, jointly liable with the defen- dant, would avail himself, if made a party to the suit, of the defence of the statute of limitations, an,d on that ground omit to make such per- son a party defendant. Hyde v. Van Valkenbur'gh, 416 5. To justify the omission of a person as a party defendant La an action against a co-partner on a partnership obligation, it must appear by aver- ments in the complaint, which lead to no other conclusion, that the legal obligation of such person had abso- lutely ceased. ib. See MARRIED WOMAN. PRINCIPAL AND AGENT, 6. PARTNERSHIP. 1. A communion of loss as well as of profits is essential to the existence of a co-partnership, and in a case where two parties were to share equally in the profits of an enterprise, but the expenses were to be borne wholly by one, and there could, in no event, be any risk of loss on the part of the other, Held, that they were not part- ners inter se. Cummings v. Mills, 520 See PARTIES TO ACTIONS, 5. PAYMEN* 1. A creditor is entitled to apply money received by him to either or any of the separate debts due to him from th person making the payment. Smith v. Applegate, 91 2. The acceptance of a' note or bill made by a third person, on a prece- dent debt, affords no presumption in favor of the debtor, but leaves the onus of proving that it was taken in absolute payment upon him. ib. 3. But the acceptance of such a secu- rity suspends the creditor's right to sue upon his original claim, until the maturity of such security. ib. PILOTS. 1. The " act concerning the pilots of the channel of the East River com- monly called Hell Gate," passed April 16th, 1847 (2 Rev. Stat., 5th ed., 428), Held, constitutional and valid. SdUicell v. Raynor, 47 , The clause in the Federal Constitu- tion, conferring upon Congress the power " to regulate commerce with foreign nations, and among the sev- eral States " (art. 1, 8, subd. 3), does not deprive the several States of power to legislate upon the subject of pilots. t'6. The statute (2 Rev. Stat,, 5th ed., 43'), 57), requiring masters of certain vessels coming into the port of New York, to accept the services of a licensed pilot first offering his servi- ces, and imposing a penalty in case of refusal, cannot control or affect the master of a vessel prior to his ar- rival within the territorial jurisdic- tion of the State. Peterson \. Walsh, 182 , A pilot, therefore, who spoke a ves- sel three hundred miles at sea, and tendered his services, which were refused, cannot recover pilotage fees under the statute authorizing such actions. ib. 5. The right to recover the penalty given under the pilot act of 1853, as amended 1854, ch. 243 (A Rev. Stat. 5th ed., 434, 57), for the refusal of the master of a vessel to accept the services of the pilot first offering, is confined to those pilots who have been duly licensed, as in the act pre- scribed, Held, therefore, that a pi- lot not licensed by the Board of Com- missioners of Pilots, under the laws of this State, although licensed un- der the statute of the State of New Jersey, and. authorized by the act of Congress (Dunlap's Laws, U. S., 924), to pilot vessels coming in or going out of the port of New York, cannot sue for the pilotage fees allowed by the pilot laws of this State, on the refusal of the master of a vessel to employ him. Hopkins v. Wyckof, 176 PLEADING. The complaint averred a fraudulent agreement between the defendants L. INDEX. 621 composing a co-partnership, and G., to obtain goods on G.'s credit, on re- presentations made by L. of G.'s sol- vency and good standing ; and al- leged that the representations of L. (| to the plaintiffs, and the purchase made of the plaintiff's by G., on such] representations, " were made in pur- suance of such fraudulent agreement, and were a device and contrivance" between L. and G., to obtain the goods of the plaintiffs, Held, on an appeal from judgment after verdict, that the complaint was sufficient. 1. It matters not what the claim is termed in the complaint, or what word is employed by the defendant to express the legal effect or result of the acts alleged. It is enough that they form the basis of a demand. 2. Nor is it necessary to aver that the representations on which the plaintiffs parted with their goods were false. It is sufficient to allege that they were made by the defend- ants, well knowing the truth to be the converse. Bollard v. Lockwood, 158 2. A complaint is " duly verified " within 4 of the act of 1857, in rela- tion to the Marine Court, if made by one of several plaintiffs, united in in- terest. It is not necessary to state that the person making it is ac- quainted with the facts. ib, 3. "Where, on a motion to strike out as sham a defence good on its face, ad- missions on the part of the plaintiff are positively sworn to, which are neither contradicted, qualified or questioned, and which tend to sustain the defence, Held, that the motion will be denied. Hodden v. N. T. Silk Manufacturing Co., 388. 4. Sham pleading is the setting up of a defence which has not only no foun- dation of fact, but which, it is mani- fest, was interposed for vexation or delay. Hodden v. N. T. Silk Manu- facturing Go., 5. An answer will not be adjudged to be sham simply upon an affidavit that it is false, for this would be try- ing the merits of the defence upon af- fidavits. But the Court must be sat- isfied from an inspection of the pleading, or from circumstances brought to its knowledge, that the object of the pleader was either to delay or annoy the plaintiff, or else to trifle with the Court by way of amusement, by getting it to pass up- on legal quibbles, or engage in a fu- tile investigation. ib. . Section 6 of the Laws of 1860, ch. 379, requiring the plaintiff in all ac- tions against the Corporation of New York city to allege in his com- plaint a presentment of his claim to the Comptroller, and the refusal of the latter to pay or adjust the same, is not restricted, in its application , to any particular class of cases. Rus- sell v. Tfie Mayor ofN. T., 262 . A complaint omitting such an alle- gation, cannot be upheld upon the ground that the claim, e. g., for dam- ages sustained by falling into a hole in the sidewalk, was not of such a character as the comptroller would have been authorized to adjust, had it been presented to him. ib. . In an action against the city corpor- ation, the defendants set up in their answer as a distinct ground of de- fence, the fact that the complaint did not contain the allegation of a pre- sentment of demand to the comp- troller, as required by statute. On the trial, the defendant moved to dismiss the complaint on the ground of such omission, Held, that the motion should have been granted, ib. 9. The fact that the judge denied the motion, and permitted the case to go to the jury, who rendered a verdict in the plaintiff's favor, cannot help him, he having acquired no addi- tional rights by the erroneous deci- sion of the judge, ib. 10. It seems that as the provision of the statute, requiring the plaintiff to al- lege presentment of claim, &c., to the comptroller, is for the benefit of the corporation, they may waive an omission of such allegation, and a failure to take advantage of such an omission by their answer, will be re- garded as an express waiver. ib. See ACCOUNT STATED, 1. LANDLORD AND TENANT, 5. MECHANICS' LIEN, 2, 8. PRACTICE. 1. In an action by a married woman to recover money paid by her, the question whether the money so paid was her scpaate property or not, is 622 INDEX. one of fact, which it is proper to sub- mit to a jury. Tlwmas v. Wickman, 58 2. It is not necessary that the under- taking given upon obtaining a stay of execution under section 356 of the Code, should embrace the under- taking required by section 354 to perfect an appeal from a District Court. Sperling v. Levy. 95 3. Where the issues in an equitable action are tried by the Court, but a further inquiry is necessaiy before judgment, the entry of the decision of the Court upon the issues, with the direction for the further proceed- ings, is an order involving the merits, from which an appeal may be taken to the General Term. The cases of Bently v. Jones, 4 How. Pr., 335; Ring v. Stafford, 5 id., SO / and Lawrence v. The Farmer's Loan Trust Co., 15 id., 57; 6 Duer, 689, examined and dissented from. Smith v. Lewis, 452 4. To enable a party to review, upon an appeal from such an order, the decision of the judge upon the trial of the issues, a case may be made within ten days after notice of the decision. 5. Where a jury trial is waived in an action upon contract, or in other actions, by the assent of the Court, judgment is entered up upon filing the conclusions of the judge, and his decision upon the trial in such a case can be reviewed only by an appeal from the judgment. ib. 6. Although as to some defects, a com- plaint may be amended at the trial in furtherance of justice, yet where it cannot l>e amended without chang- ing the form of action, the amend- ment will not be allowed. Bailey ,v. Johnson, 61 7. Where, in a proceeding instituted by a sub-contractor under the me- chanic's lien law of 1851, it appears by the complaint, and by the facts admitted by the counsel, that no lien can be established, a motion for leave to amend the proceeding into an ordinary action for the recovery of money, against the contractor, will be denied. ib. 8. An application for leave to amend a pleading at the trial, is addressed to the favor of the Court, and its dis- position is not the subject of review upon appeal. ib. 9. Although a motion for nonsuit might have been properly granted on plaintiff's resting his case, on the ground that the evidence was too slight to sustain the claim, yet, where the case was subsequently strength- ened by the defendant's witnesses, the exception taken on denying that motion is not available on appeal. Battard v. Lockwood, 158 10. It is a matter of discretion for the judge to exclude a question on the ground that it has already been an- swered in effect ; and as such, the exclusion is not reviewable on appeal. ib. 11. The defence of usury is an uncon- scionable one, and the courts will not usually open a judgment obtained by default to establish it, or allow the amendment of a plead- ing for that purpose. Parish v. Cor- lies, 274 12. Where there is only one issue, and the intention of the jury to find for the plaintiff is manifest, the Court will, in case of a mistake by them, correct their verdict by making it conform to their finding, and give judgment upon it accordingly. Wells v. Cox, 515 13. On the trial, the Court charged the jury that if their finding was in favor of the plaintiff, the amount due him was six hundred and sixteen dollars and twenty-nine cents. The jury found for the plaintiff, but forgetting the amount given by the Court, re- turned a sealed verdict for the plain- tiff " for the whole amount claimed and interest," fleM. that the Court could, on motion, correct the verdict by inserting in it the sum stated in the charge. ib. 14 Where evidence is ruled out by the Court below, the appellate Court will not inquire into its relevancy, unless it or its substance appear in the case, but will assume that the decision of the Court is correct. Berry v. May- new, 54 See ABATEMENT Am> REVIVAL, 1. DISTRICT COURT PRACTICE, 4, 6. JUDGMENT, 1. INDEX. 623 See ABATEMENT AND KENEWAL, 2. ACCOUNT STATED, 3. APPEAL, 6. JUDGMENT,. 3, 4, 5. PRINCIPAL AND AGENT. 1. In general, a factor has a lien for his general balance on the property of his principal coming into his hands. 2. A commission merchant advanced money to his principal on his in- dorsement, and charged the note, upon which the advance was made, in his general account, Held, that the mere charging of the note to the principal did not entitle the latter to its possession. The agent had a right to retain it as his principal's proper- ty, until he was paid the balance of his general account arising in the course of their dealings. Myer v. Ja- cobs, 32 3. The rule that an agent or trustee cannot confer upon another the right to discharge the trust or duty creat- ed by his appointment, applies only where the act to be done involves personal trust and confidence, and calls for the exercise of the agent's discretion or judgment; a mere min- isterial or executive authority may be delegated by an agent to another. Grinnett v. Buchanan, 538 4. Where A. agreed with B., that if within a fixed time B. should make an arrangement for the taking down of certain house?, he would pay B. a sum of money, which sum was to be paid as a bonus to the party taking down the houses, and the arrange- ment was made, Z/W,that the agen- cy of B. to receive and pay over the money, was not one involving per- sonal trust and confidence, and might be assigned. ib. 5. Held further, that this arrangement having been made, and its stipula- tions performed by C., the amount to be paid by A. was simply a debt, on which a right of action remained in B. to be prosecuted for the benefit of C., and which might be assigned by A. to the party beneficially in- terested, ib. The effect of Considerant v. Brisbane (22 N. "?., 389), considered and dis- cussed , per Daly, F. J. , ib. . The Code having abolished the dis- tinction between actions at law and suits in equity, and left but one form of procedure, that form of proceed- ing is to be preferred which is the most direct, consistent and compre- hensive. Hence, where at common law the suit would have to be brought in the name of the trustee, for the benefit of the cestui que trust, while in equity it might be brought directly by the latter the equitable form is to be preferred. . If goods sold to 'an agent have come to the use of his principal, the seller, upon discovering the principal, may require payment of him, although he instructed the agent not to pur- chase on credit, unless the principal can show that it would change the state of a6counts between himself and his agent to his prejudice. It would be otherwise, however, if the seller gives the credit exclusively to the agent, as when he hears of the existence of the principal, and yet debits the goods to the agent. Rowan v. Buttman, 412 Where a person carrying on a bake- ry, with all the external appearance of ownership, and representing him- self to be the owner, purchases a quantity of flour which was used in the business, and it appeared that he was formerly the owner of the bakery, that he became embarrassed, and that he had entered into a writ- ten agreement with the defendant, who was in another business, declar- ing that the defendant was the own- er of the stock in trade, and the fix- tures that he was to manage and carry on the business for the defend- ant at twelve dollars per week, and if the net profits exceeded that sum, then he was to have a certain pro- portion of them the whole transac- tion having the appearance of one of the ordinary contrivances by which a debtor, with the aid of a secret principal, attempts to evade the pay- ment of his debts, Held, that the de- fendant was liable to the plaintiff, though he testified that there was a verbal agreement that the agent was to buy only for cash, and that when he wanted money for flour, that he was to come to him for it ib. See CARRIERS, 11, 12. COMMISSIONS, 1, 2. CONSIGNOR AND CONSIGNEE, 2. MASTER AND SERVANT, 4. 62 INDEX. PROMISSORY NOTES. Bee BILLS, NOTES AND CHECKS. R RAILROAD COMPANIES. A statute declaring that railroad com- panies shall not charge more than three cents a mile for the transporta- tion of a passenger and his ordinary baggage, under a penalty, does not, apply to railroads in cities composed j of separate vehicles drawn by horses, unprovided with apartments for the safe keeping and transportation of baggage, the vehicles of which must stop at any part of the route where a passengerpresentshimself, andforhim to leave when he wishes, tlie compen- sation for whose carriage cannot be adjusted by the standard of miles, but must be one fixed sum, whether he goes the entire distance or not ; but it applies only to railroads whose cars are propelled by steam, which transport passengers and their bag- gage from ope fixed place or station to another, without stopping at any intermediate point, and in which it is possible to adjust, beforehand the amount of fare to be paid from place to place. Hoyt v. Sixth Ave. R R Co., 528 See NEGLIGENCE, 8, 9, 10, 11, 12. INTERNAL REVENUE. REPLEVIN: See ABATEMENT AND REVIVAL, 3, 4, ACTION, 3, 4. RES ADJUDICATA. 1. Where the affidavit of the defendant in summary proceedings to dispos- sess for the non-payment of rent raises two questions, and the jury finds generally for the defendant, both questions are presumptively res adjudicata, and in a subsequent pro- i ceeding, in which one of such ques- tions arises, it is for the plaintiff to show that it was not passed upon by the jury. Tankers & N. T. Fire Ins. Co. v. Bishop, 449 2. Where, in the summary proceedings the defendant's affidavit denied his indebtedness on various grounds, in- cluding that of eviction by title par- amount, and also denied any de- mand of the rent, and the jury found a general verdict for the defendant, Held, in a subsequent action for the same rent, that the verdict was pre- sumptively res adjudicata on both points, and that it was for the plain- tiff to show that the jury only passed on the question of demand. t&. s SALE AND DELIVERY OF CHAT- TELS. 1. It is a general principle that when goods are ordered to be sent by a car- rier, a delivery to the carrier oper- ates as a delivery to the purchaser, in whom the title immediately vests, subject to the vendor's right of stop- page in transitu ; and the goods, in the course of transit, are at the risk of the purchaser. Baker v. Bourci- cault, 23 2. But where it is apparent, from the circumstances under which the de- livery was made., that the vendor did not trust to the ability or readiness of the purchaser to perform his con- tract, and intended to insist upon strict prepayment as a condition of delivery by. the carrier, Held, that such delivery by the vendor to the carrier, is not within the general rule, and does not operate to pass title. ib. 3. The defendant ordered certain goods of the plaintiffs, and left it at their option whether he should, send the amount of their bill by return of post, or whether it should be collect- ed by the express company, on de- livery. The plaintiffs sent the goods, by express company, with directions to collect upon delivery. The vessel by which the goods were shipped was lost at sea, Held, 1. That payment and delivery were intended to be simultaneous acts, and until such payment and delivery, the title re- mained hi the vendor, the contract being merely executory. 2. That con- sequently the goods were,- while in the course of transit, at the risk of the vendor ; and, be 'ing lost, no ac- tion would lie against the vendee for INDEX. 625 the contract price. 3. It makes no difference that the goods were sen by a particular carrier named by the vendee, By such delivery and in structions to the carrier, the vendor made him his own agent. ib 4. A tender by the vendor, of an unin dorsed custom house permit, author izing a delivery of the goods by the warehouse man, it appearing thai the permit was sufficient if indorsed by the vendor, td enable the vendee to take possession, Held, a sufficient offer of delivery of the goods. The want of the indorsement was imma- terial, as the indorsement could have been made immediately, had the vendee made objection on that ground. Duribar v. Pettee, 11 5. Where it appears from the course of dealing of the warehouse man, or by the agreement of the parties, that the goods stored will be delivered without requiring immediate pay- ment of the storage, the warehouse man relying upon the personal cred- it of the party, there is no lien ; be- cause such a course of dealing is in- consistent with an implied agree- ment at the time of the deposit, that the property is not to be taken away unless the storage is paid. ib 6. Where it was the established usagi of the storehouse keeper to deliver property to houses in good standing relying upon their personal credi for the payment of the storage, the right of lien was waived, and the Court would have no right to imply nor would a jury be justified in find ing, that, the contract of the plaintiff with the storekeeper was differen from that of other houses in gooc standing ; but it must be presumed that the plaintiffs contracted upon the same terms as others in like situ- ations until the contrary is shown, ib 7. There being no lien upon the prop- erty for storage, and the vendee on the permit already tendered having the right to the possession of the property, it would be unreasonable to require that, at the time of the de- livery, the vendor should pay the storage. ib. 8. The plaintiffs sold to N. and S. joint- ly, a quantity of goods, to be paid for in cash, on delivery, or by the note of 8. at three months, indorsed 40 by N. The plaint iffs delivered part of the goods, but refused to deliver the residue, on the ground that S. had failed. Plaintiff made no tender of the goods, nor demand for either cash or the note, but brought his ac- tion for the value of the goods before the expiration of the three months, Held, that a motion for a nonsuit should have been granted. 1st. The contract being an entirety, no recov- ery could be had until the whole of the goods were delivered. 2nd. Tho insolvency of one of the purchasers was no excuse for the plaintiff's neg- lect to tender delivery to the other, and make the election either to take the note or cash. Soloman v. Neidig, 200 9. Where a vendor, at the time of the sale, agrees, that if the goods when delivered are inferior to the sample, they may be exchanged, it is a con- ditional sale, and the inferiority of the goods is no defence to an action for the price. The vendee should, on discovering the quality of the goods, tender them back to the vendor, or at least notify him of the defect ; and failing to do so, he is estopped from denying their value. Fisher v. Mer- win, 234 10. Where, by a custom of the trade, a purchaser pf goods on shipboard is bound to unload within a definite time, and by reason of the purchas- er's failure to take the goods within that time, the owner is obliged to pay lighterage and storage fees thereon, Held, that the purchaser is liable for such payments. Dayton v. Rowland, 446 See CHATTEL MORTGAGE, 1, 2. CONVERSION, 1. DURESS, 1, 2, 3. SHIPPING. 1. For supplies furnished a vessel upon the order of the captain, while acting for the owners, the owners are liable in solido; and a non-joinder of any part-owner in an action to recover for such supplies may be taken ad- vantage of by plea in abatement. Sa- ger v. Nichols, 1 A person whose real interest in a vessel is only that of a mortgagee, and who has never taken possession of the same, is not answerable for supplies, although he holds a bill of INDEX. sale, vesting in him the legal title,] and the vessel is registered in his name at the custom house. Baxter v. Wallace, 303 3. The registration of a vessel at the custom house, under a bill of sale, al- though accompanied by the oath of the person in whose name it is regis- tered, that he is the true and only owner, is not conclusive as to the the ownership. &>. for supplies, it must be shown either that he was in possession of the ves- sel, or that the supplies were fur- nished at his request, or by the di- rection of some person authorized to contract in his behalf. ib. 5. Lighterage is the price paid for un- loading ships by lighters or boats, and a charge for taking a boat to an- other pier instead of the usual one of delivery would not be embraced un- I der that term. Western Transporta- tion Co. v. Hawley, 327 6. Demurrage is only recoverable where it has been expressly stipulat- ed for, though where there has been an unreasonable or improper deten- tion of the vessel by the act of the freighter or consignee, damages may be recovered by the owner. ib. 7. A mariner who is in a vessel when she commences her voyage, but who leaves her while she is temporarily stayed in the harbor by accident head winds or other causes, before f she reaches the main ocean, has not " proceeded to sea," in the sense in which that term is to be understood in an agreement for the payment of money upon that condition. James v. Ragan, 517 8. Where it was agreed that money should be paid to a seaman as soon as he should proceed to sea agreea- bly to the shipping articles, and the ship started, but before leaving the harbor was compelled by accident to return, Held, in the absence of proof of the contents of the shipping articles, that the condition of the agreement was unfulfilled, and there could be no recovery on it. ib. See INJUNCTION, 1. C AKRIKU, 4. SPECIFIC PERFORMANCE. See ARBRITBATION, 1, 2, 3, 4, 5. STATUTES. 1. The penal laws of a State being strictly local in their character and effect, there can be no recovery for an offence under them, committed beyond the territorial jurisdiction of the State. Peterson v. Walsh, 182 2. Exposition of the law in relation to vagrancy, disorderly persons, and disorderly conduct in the city of New York; the correct course of procedure under the various statutes, in summary convictions and com- mitments for such offenses before police justices pointed out, and the nature and extent of the power that may be exercised in reviewing such cases upon writs of habeas corpus and certiorari. Matter of Mitter, 563 3. The offenses which constitute disor- derly conduct under the acts of 1838, ch. 11, and of 1860, ch. 508, are dif- ferent from the offenses which will constitute a " disorderly person " un- der the act of 1833, and the Revised Statutes. In common parlance, one who is guilty of disorderly conduct may be regarded as a disorderly per- son, but these terms, " disorderly per- sons" and " disorderly conduct," are used in the statutes as distinguishing distinct and different offenses. t&. 4. There are, under the statutes regu- lating these summary convictions before a magistrate without a jury, three classes of offenders. 1. Va- grants. 2. Disorderly persons. 3. Per- sons guilty of disorderly conduct ; each of which is distinguishable from the other, and in each the course of procedure is different. ib. 5. Though the statute of 1833 is silent as to what the magistrate is to do af- ter a conviction for disorderly con- duct, if the offender fail to give secu- rity for his good behavior, it is man- ifestly implied, that he is to be com- mitted until he gives it, or until the expiration of the period for which he was required to give it. ib. 6. The act of 1859, chap. 491, author- izing* police justices to impose a fine of ten dollars, in cases of disorderly conduct, was not intended to, and IKDEX. 627 does not abrogate the previous pro- vision, empowering them to require security for good behavior in such cases. It is in the discretion of the justice either to impose the fine or to require security. 7. The twentieth section of the act of 1860, ch. 508, which declares that certain acts shall constitute disor- derly conduct, was not intended to limit the offense to such acts. The only effect of it is, that it leaves noth- ing to the discretion or opinion of the magistrate where such acts are proved, but makes it his duty to com- mit $>. 8. The proceedings upon a conviction for disorderly conduct were designed to be of a more summary nature than upon the conviction of vagrants and disorderly persons. In the latter cases, a record of the conviction must be filed, but the filing of a rec- ord is not necessary in committing for disorderly conduct. ib. 9. It is not essential to the validity of a commitment for disorderly conduct that it should set forth the acts which, in the opinion of the magis- trate, tend to a breach of the peace. Where the commitment declares that the prisoner was charged be- fore the magistrate, on the oath of witness, who is named, with such disorderly conduct, as in the opinion of the magistrate, tends to a breach of the peace, and that he was re- quired to give security for his good behavior, and failed to give it, it is sufficient. ib. 10. Where the criminal process upon which the party is imprisoned is re- turned in answer to a writ of habeas corpus, all that the officer granting the writ can do, is to examine the process, to see if the officer or court whence it emanated had jurisdiction of the subject matter, and if that ap- pears upon the face of the process the party must be remanded. If the officer making the commitment acted upon insufficient evidence, or without any evidence at all, the rem- edy is by a writ of certiorari to the Court of Sessions, under the act of 1859, chap. 339. t&. 11. Where the order for the transfer of the offender from the City Prison to the Work-House, purports upon its face to be made by the direction of the Board of Commissioners of Pub- lic Charities, and is authenticated by the signature of one of the commis- sioners, it is sufficient. Otherwise, when it is signed by one of the com- missioners only, and there is nothing upon its face to denote that it was done by order of the Board. ib. 12. Where a power is given to a Board of Commissioners by statute, the official act of one of the members will not suffice, but it must appear that the Board acted in the premises. ib. 13. A commitment for disorderly con- duct until the offender finds secu- rity in a certain sum for his good behavior is bad, as it is equivalent to perpetual imprisonment, if he should be unable to find security. It must be for some fixed term or period, and must not exceed twelve months. ib. 14. The provision in the act of 1864, chap. 586, declaring that no person committed to the City Prison or Work-House, for drunkenness or dis- orderly conduct, should be discharg- ed, except upon reversal of judgment upon appeal, or review by a court of superior jurisdiction to the magis- trate making the commitment, does not preclude a judge upon habeas corpus from enquiring whether the magistrate making the commitment acted in a matter of which he had jurisdiction, .and discharging the party if there was a want of jurisdic- tion. $. 15. The writ of 7tabea* corpus stands upon the same footing as the writs of quo warranto, mandamus, certiorari and prohibition, and as in the case of these writs, the proceedings under it are appellate in their character. It issues under the seal of the Supreme Court. The officer acting under it is clothed by statute with the same power as the court ; it brings up the body of the prisoner with the cause of his commitment, and the pro- ceeding under it is a review by a court having superior jurisdiction to the magistrate making the commit- ment- i',. 16. All which is essential to constitute a court exist in the proceeding which is had l>efore a judge upon a writ of habeas corpus ; the actor, or 623 INDEX. plaintiff, the reus, or defendant, and thejudex, or judicial power which is to examine into the fact, the law arising upon it, and to apply the rem- edy ; the officer acting not ministe- rially but judicially, with authority by statute to imprison. #>. 17. Where an authority is created by statute, with power to fine or im- prison, the officer, person or body in- vested with such authority is, for that purpose, deemed a court. ib. STATUTE OF FRAUDS. 1. The defendant, the clerk of the Elaintiff, who was a hatter, told the itter that if any of his personal friends bought hats on credit, he would pay for them if they did not. The defendant sold hats to his friends which were charged to them on plaintiff's books, Held, that the promise of the defendant was collat- eral, and within the statute of frauds, and therefore void. Knox v. Niitt, 21 See LANDLOBD AND TENANT, 15. SUMMONS. 1. An undertaking given pursuant to section 209 of the Code of Procedure in an action of claim and delivery of personal property, conditioned for a return of the property, if a re- turn should be adjudged, and for the payment of such sum as should, for any cause, be recovered against the plaintiff hi the action, is substantially one for the payment of money Montegriffo v. Musti, 73 2. And an action against the sureties in such undertaking, is an action arising on contract within section 12S of the Code, and a summons for a money demand, in such an action, is proper. 3. By appearing and pleading to the merits, the defendants waive all ob jections to the form of the summons Le Sage v. Great Western It. Co f 306 See JUDGMENT, 5. PLEADINGS. PRACTICE. T TELEGRAPH COMPANIES. 1. The defendants, a telegraph com- pany, received from the plaintiffs, at Washington, D. C. , a dispatch to be transmitted over its line to the plain- tiffs' agents in New York, directing them to sell for plaintiffs their " Southern Michigan before board ; buy five Hudson at board." The dis- patch, as received by the plaintiffs' agents, directed, them to sell their Southern Michigan stock before board, and " buy five hundred at board." The agent sold the plaintiffs' Southern Michigan stock before the board, and, at the board, purchased five hundred shares of the same stock. The plaintiffs, on being apprised by telegraph the same day, of the trans- action, sent another dispatch, correct- ing the error, and repeating the first order. This dispatch being received after the adjournment of the board of brokers, the agents sold on the street the five hundred shares of Michigan Southern R. R. stock, pur- chased by them, at a loss of four hundred and seventy-five dollars, and purchased at the lowest price five hundred shares of the Hudson River R. R. stock, which was, for the whole number of shares purchased one thousand three hundred and seventy-five dollars more than the same could have been bought for at the board of brokers that day, Held, that the plaintiffs were entitled to recover of the defendants the differ- ence between the price at which the five hundred shares of the Hudson River R. R. stock could have been bought at the board of brokers, and the lowest price for which the same could have been, and was, bought after the adjournment of the board, on the receipt of the corrected dis- patch. Rillenhouse v. The Indepen- dent Line of Telegraph, 474 2. Held , also, that as the language used in the dispatch, however indefinite to others, was intelligible to the agents, they were not charged with the duty of making further inquiry before acting upon it w. . Held, also, that defendant having placed it beyond the power of the plaintiffs' agents to make the pur- chase of the five hundred shares of INDEX. 629 the Hudson River R R stock at the board of brokers, it could not avail it- self of the fact that the purchase was made on the street after the adjourn- ment of the board, it not appearing that it was injured by the circum- stance, ib. 4. Held, further, that the plaintiffs were not entitled to recover the difference of four hundred and seventy -five dol- lars on the sale of the five hundred shares of Michigan Southern R R. stock. In legal effect, it was pur- chased on the defendant's account, and could not be sold without notice to the defendant. ib. 5. The contract for the transmission of a telegraphic message is not necessarily made with the person to whom it i: sent. If the person to whom it is addressed is the one interested in its correct and diligent transmission, and by whom the expense of sending it is borne, he will be regarded as the one with whom the contract is made. De Unite v. JT. Y., Albany and Buffalo Tel. Co., 547 6. The business of telegraph companies, with that of common carriers, is in the nature of a public employment, as they hold out to the public that they are ready and willing to trans- mit intelligence for any one upon the payment of their charges, and not for particular persons only. ib. 7. Common carriers are held to the responsibility of insurers for the safe delivery of the property intrusted to their care upon grounds of public policy ; to prevent fraud or collu sion with thieves, and because the owner having surrendered up the possession of his property, is gener- ally unable to show how it was lost or injured. ib. 8. These reasons do not apply to tele- graph companies, and they are not held to the responsibility of insurers for the correct transmission and delivery of intelligence. As the value of theif service, however, on- sists in the message being correctly and diligently transmitted, they ne- cessarily engage to do so, and if there is an unreasonable delay, or an error! committed, it is presumed to havej originated from their negligence, un-j less they show that it occurred from causes for which they are not an- ! swerable. The causes which will excuse them commented on and con- sidered, ib. 9. They may qualify their liability to the effect that they will not be an- swerable for errors unless a mes- sage is repeated, but this condi- tion must be brought home to the knowledge of the person who brings the message for transmission. ib. 10. Where a telegraph company is paid the whole compensation for the transmission of a message to a place beyond their own lines, with which they are in commupication by the agency of other companies, they will be regarded as engaging that the message will be transmitted to and delivered at that place, unless there is an express stipulation to the con- trary, or the circumstances are such as to show that the understanding of the contracting parties was other- wise, ib. 11. Where a merchant in San Francisco receives a telegraphic message from New York, which leads him into a purchase involving inevitable pecu- niary loss, which' would not have occurred but for an error made in the transmission of the message, he is not compelled to seek through an extensive chain of telegraphic com- munication to ascertain where the error was made, but the company to whom the message was originally given, and to whom the whole com- pensation was paid for its transmis- sion, is answerable. Having pecu- liar facilities, the obligation is upon it to ascertain where and when the error occurred, and to fix the ultimate responsibility where it properly be- longs, ib. 12. The defendants' line of telegraph extended from New York to Buffalo, where it connected with other lines and a pony express to San Fran- cisco. The defendants received the entire compensation for transmitting a message to San Francisco, which was correctly sent by their own line and by the connecting lines as far as St. Louis, but an important mistake was made between that point and San Francisco, field, as nothing was said about the defendant being an- ewerable only for the correct trans- mission of the message along their own line, as they received the whola 630 INDEX. amount that was asked to send it to San Francisco, without communicat- ing by what lines it would be sent, or any other particulars as to the mode or manner of its transmission, that they took upon themselves the whole charge of sending it, and were answerable for the error. ib. 13. Independent of any question of contract, if a person is put to loss and damage through the negligence of a telegraph company in transmit- ting to him an erroneous dispatch, the company would be liable to him in an action for negligence, and if they received the whole compensa- tion for sending it, they would be liable in such an action though the error was made by one of the com- panies through whom they trans- mitted it. ib. 14. The plaintiff's agent in Bordeaux . obtained from a commercial house in that city an order for the plain- tiff, a commission merchant in San Francisco, to purchase for them arid ship from San Francisco, a cargo of wheat, at a certain price. The plaintiff's agent prepared a tele- gram in these words : " Edward De Rutte, San Francisco. Buy for Cal- larden & Labourdette, bankers, a ship load of five to six hundred tons white wheat, first quality, extreme limit twenty-two francs the hecto- litre, landed at Bordeaux ; same conditions as the Monod contract. Th. De Rutte," which the plaintiff's agent sent hi a letter to a commer- cial house in New York with instruc- tions to send it to the plaintiff at San Francisco hi the quickest man- ner, and to charge the expense to the plaintiff. The house in New York sent it by their clerk to the defen- dants' office, who paid to the defen- dants the entire compensation for its transmission by telegraph to San Francisco. When delivered to the plaintiff in San Francisco several errors had been made in its trans- mission, the most important of which) was a change from twenty-two to twenty-^w francs the hectolitre. The plaintiff was not misled as to the other errors, and knew what was meant, but the word twenty-five he assumed to be correct. Grain could be purchased at that time hi San Francisco at from twenty-four to twenty-five francs the hectolitre, and he accordingly chartered a vessel and purchased a cargo. But before the vessel sailed, he received via New York the letter which his agent had sent, when discovering the mis- take, he resold the wheat and got rid of the charter party, incurring by the transaction a loss of over two thousand dollars, for which he sued the defendant, and recovered, Held, that the defendant's contract for the transmission of the message was with the house in Bordeaux, not with the house in New York, and the action was properly brought in his name. id. 15. That it was not an act of co-operat- ing negligence for him to act upon the dispatch, without having it re- peated, after he had discovered three errors in it. That they were not of such a nature as should have led him to treat the whole dispatch as unre- liable, and that he was justified in assuming that the words " twenty- five" had been correctly transmitted. ib. 16. That as the error in the dispatch was the cause of his purchasing the wheat at the price which he did, and as the inevitable loss which occurred was the direct and immediate conse- quence of the error, that the loss he sustained was the proper measure of damages. ib. 17. A clause in the printed condition of a telegraph company, that they will not be responsible lor mistakes or delay in the transmission of a message, applies merely to the trans- mission of the message, and not to mistakes, or a delay in the delivery of the message, after it has been cor- rectly transmitted. Bryant v. The American Telegraph Co., 575 18. The plaintiffs sent a message to the defendants' office hi New York, ad- dressed to an attorney in Providence, Rhode Island, directing him to at- tach a house and lot in that city, of one B., who was then temporarily absent from Rhode Island, for a debt of twehre thousand dollars, due by B.'s firm to the plaintiffs. The message was brought to the defend- ants' office at halt-past eight P. M., which was then closed for the ordi- nary transaction of business. Their agent was told that the message waa important ; that unless it was sent and delivered at once it would be of no use ; that the object of the mes- sage was to get an attachment upon property hi Providence ; that unless INDEX. 631 it was made before the Stonington train reached the Rhode Island State line, it would do no good ; that he would consequently see the iin portance of the matter, and why the plaintiffs were so urgent. The de- fendants' clerk assured the plaintiffs' messenger that the message would be sent and. delivered as he wished, and that he would not take the money if he thought there was any doubt about it. The message was sent at ten minutes past nine, with directions from the operator in New York to send it La haste, and was received by the operator in Provi- dence at half-past nine P. M., who was then engaged hi receiving re- ports for the press, which, by statute, have precedence over all other matters. The Providence op- erator answered that it could not be sent that night, as the delivery boy had gone home, to which the other answered that it must be, and the former replied by a sign expressing his concurrence. The Providence operator was engaged without cessa- tion in receiving newspaper reports until half-past eleven o'clock P. M., when he had the message copied and sent it to the attorney. When the attorney received it, it was too late to have the attachment made, before the arrival of B., who returned to Rhode Island in the Stonington train that morning, and the plaintiffs lost the advantage of securing their debt by an attachment upon B.'s house and lot, which was worth over twelve thousand dollars. B.'s firm afterwards went into bankruptcy, and all that the plaintiffs recovered up9n their debt from the bankrupt estate was five hundred dollars, Held, that the plaintiffs were not bound to exhaust their legal remedy against their debtors by the recovery of a judgment and the issuing of an execution before bringing an action against the telegraph company for the recovery of damages. ib. 13. Held, that the measure of damages was the amount of the debt and in- terest from the day of the delivery of the message, less the five hundred dollars which the plaintiffs had re- ceived from the bankrupt estate of B.'s firm. DALY, F. J., dissenting, ib. 14. The judge, at the trial, was re- quested to charge that the only dam- ages which the plaintiffs could re- cover, was the amount paid for send- big the message, with such other ex- penses as were incident to it, which the judge refused, Held, that the refusal was correct. DALT, F. J., vb. TORT. See EVIDENCE, 6, 7. INFANT. TRESPASS. $se MARRIED WOMAN. TRIAL. See PRACTICE, 5, 6, 7, 8, 9, 10. DURESS, 4. u UNDERTAKING. See ACTION, 6, 7, 8, 9. USAGE. See CARRIERS, 15, 16, 17. USURY. See PRACTICE, 11. USE AND OCCUPATION. , An action for use and occupation of premises canot be maintained against a party in occupation when it ap- pears that there is a lease of the premises outstanding in a third per- son. Bedford v. Teihune, 321 Where a lease is outstanding, and a party other than the lessee is in pos- session, it is presumed that he is the assignee of the lease, unless it is shown that he holds under a demise from the lessee ; and as assignee he is not liable in an action for use and occupation, as his liability is not founded upon privity of estate, and the action must be upon th% lease, ib. , A surrender of the lease before the expiration of the term, and that the party in occupation afterwards held under a distinct and independent agreement with the lessor, may how 632 INDEX. ever be implied from circumstance ib 4. The fact that the lessee had failed that the defendant succeeded to the same business which the lessee hac previously carried on in the same premises ; that when the lessor was advised of these facts, that the de- fendants gave him their assurance that he need feel no concern for his rent, that they continued thereafter to pay the rent to him and not to the lessee, and that they applied to hire the premises from the lessor for an- other year, telling him they were j among his best tenants, and had al- ways paid their rent punctually, ! Held, sufficient to warrant a jury in finding in an action for use and oc- cupation, that there was a change of tenancy by the consent of all parties. ib. VENDOR AND VENDEE. 1. Where by the terms of a contract of sale of real estate, a day is fixed for the payment of money by the vendee, and the delivery of a deed by the vendor, the vendor is bound to seek the vendee and tender the deed, or by some act call upon him to perform his contract, before he can place the vendee in such a position as will work a forfeiture of a sum paid on account of the purchase price. Thomas v. Wichman, 58 2. The fact that the vendee quits the premises before the day agreed upon for the delivery of the deed, does not absolve the vendor from his obligation to tender a deed, if he wishes to put an end to the contract. 3 And the vendee having subsequently made a tendor of performance of his part of the contract may, on refusal of the vendor to deliver a deed, recover a sum iid under the contract. ib. and would not excuse the vendor's default to perform or tender a per- formance on his part. ib. See COUNTERCLAIM, 1, 2. SALE AND DELTVEBY. 4. A declaration by the vendee's attor- ney, made prior to the day on which the title was to be passed, that the vendee did not want the title, Held, no evidence that the vendee did not intend to complete the contract on the day specified in the contract ; w WAREHOUSEMAN. L A warehouseman who takes goods upon storage for hire is answerable for their loss, or the loss of any part of them, not proceeding from the inherent nature of the goods, such as absorption, deterioration, or like cause, unless he can show that the loss occurred under circumstances exonerating him from all blame ; or if he cannot do that, that he exercised a degree of care in their safe-keeping, that would repel any suspicion of the loss having occurred through his negligence or dishonesty. Arent v. Squire, 347 . It is sufficient for the plaintiff in the action to show that the property en- trusted to the warehouseman has not been restored on demand, or has been returned diminished in quan- tity, or injured. It is then incumbent upon the defendant to show how the loss or injury occurred, or that he exercised proper care, as it is to be assumed that the one who had the control and custody of the property, is better able to account for its loss or injury than the one who confided it to his keeping. ib. 3. The presumption that all persons are presumed to have duly discharged an}' duty imposed upon them by law, is allowed for the benefit of those en- trusted with the discharge of public duties as well as for those interested in or affected by the discharge of them. Whether a presumption of this nature is to be applied to private persons or not, will depend upon the circumstances of each particular case. ib. 4. Where a bailee for hire returns the property committed to his care materially injured, or fails to return all that was entrusted to him, it is a more legitimate inference to conclude that there was a want of proper care and diligence than to presume that it was exercised. ib. INDEX. 633 5. The plaintiff stored with the defen- dant ten pipes of gin, which were gauged in the defendants' wareroom on the day when they were received, and when gauged upon their rede- livery to the plaintiff, there was found to be a deficiency in two of the pipes of about sixty gallons, to re- cover for the value of which the action was brought. Upon this state of facts, the defendants moved for a non-suit upon the ground that there was nothing to show that the loss was occasioned by their negligence, Hdd y that the motion denied. 6. The defendants then proved that the two pipes were stored with the rest in a loft to which nobody had access but themselves and their employees. They gave some evidence of the trustworthiness of their employees, but neither they nor their employees were examined as witnesses to show that they knew nothing of the man- ner in which the loss occurred, and there was evidence from which it was fairly inferable that the two pipes had been recoopered while in the defendants' loft, but by whom or for what purpose, was not shown, Held, not sufficient to exonerate them from liability. ib. WITNESS. 1. Where the complaint was not given in evidence, and the plaintiff was not asked any questions in relation to its contents, Bdd, that the judge prop- I erly refused to charge the jury that the discrepancy between ttie plain- tiff's sworn complaint, sihd his evi- dence and the testimony, might be taken into consideration in consider- ing his credibility. Fash v. Third Ave. R M. Co., 148 2. Husband and wife cannot be exam- ined either for or against each other except in cases where they are par- ties to the suit. Eogers v. Rogers, 194 3. The question to a witness, for the purpose of impeaching his credibil- ity, whether he had not been ex- pelled from an Odd Fellows' lodge, Held, properly excluded, as an affirm- ative answer would not affect the credibility of the witness. Greaton v. Smith, 380 4. An offer to show that the witness had been convicte^d and imprisoned for gross intoxication on a certain day, Held, properly excluded, as it was an effort to impeach a witness by proof of a particular offence, ib. 5. The cross-examination of a witness , as to a conversation had by him, must be limited to that particular subject of the conversation which was brought out on the direct ex- amination. The whole conversation cannot be given on the cross-examin- ation. &. See ARREST, 3, JURY. 001 025 559 4