CflnrttpU Ham i>rlynoI ffitbratg 
 
Cornell University Library 
 KFN5082J17 1916 
 
 New York bar examination Questions and 
 
 3 1924 021 906 445 
 
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 the Cornell University Library. 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31 924021 906445 
 
NEW YORK 
 
 BAR EXAMINATION 
 
 QUESTIONS AND ANSWERS 
 
 ^l 
 
 ^\v-^\ 
 
 BY 
 
 JOSEPH X^COBS, LL. B. 
 
 OF THE NEW YOEK BAR 
 
 LOUIS APPLEBOME, LL. B. 
 
 OF THE NEW YOEK BAE 
 
 THIRD EDITION 
 
 THE BANKS LAW PUBLISHING CO. 
 
 NEW YORK 
 1916 
 
^7^7r 
 
 CoiryrigU, 190S, 
 Bt The Banks Law Publishing Go. 
 
 Copyright, 1910, 
 By The Banks Law Publishing Co. 
 
 Copyright, 1916, 
 Bt The Banes Law Publishing Co. 
 
PREFACE 
 
 This third edition has been carefully revised and brought 
 down to date. Many new questions have been added in every 
 branch of the law. All the latest decisions and statutes have 
 been noted wherever necessary. The New York Canons of 
 Ethics have also been added to this edition. The book has 
 been divided into two parts, Substantive Law, and Pleading, 
 Practice and Evidence. The student will find this a more 
 convenient method of review. In conclusion, this work is 
 submitted in the confident belief that it will be found to fur- 
 nish that preparation which is needed to insure success in 
 passing the final examinations. 
 
 Joseph Jacobs, 
 Louis Applbbome. 
 New York, January 20th, 1916. 
 
 m 
 
TABLE OF CONTENTS 
 
 SUBSTANTIVE LAW 
 
 CHAPTER PAGE 
 
 - I. Agency .... . 1-26 
 
 II. Bailments . . . . 27-39 
 
 III. Bills and Notes .... . 40-80 
 
 - IV. Carriehs . . 81-97 
 
 ~ V. Constitutional Lawv 98-116 
 
 VI. Contracts . .... . 117-144 
 
 VII. Corporations 145-175 ■ 
 
 ,^ VIII. Criminal Law 17fr-211 
 
 IX. Domestic Relations 212-237 
 
 X. Equity 238-260- 
 
 XL Insurance 261-281- 
 
 Xll. Partnership . 282-303- 
 
 XIII. Quasi Contracts 304-311 
 
 XIV. Real Property 312-342 
 
 XV. Sales . 343-364 
 
 XVI. Suretyship and Guaranty v . . . 365-381 
 
 XVII. Torts .... . . 382-421- 
 
 XVIII. Trusts .... 422-437- 
 
 XIX. Wills and Administration . . . 438-^74 
 
 PLEADING, PRACTICE AND EVIDENCE 
 
 XX. Code Pleading and Practice .... 475-540 
 
 XXI. Evidence .... ... 541-606 
 
 Canons of Ethics 607-616 
 
NEW YOEK BAE EXAMIMTION 
 
 QUESTIONS and' ANSWERS 
 SUBSTANTIVE LAW 
 
 CHAPTER I 
 
 Agency 
 
 Q. A, an infant, is the owner of a certain piece of land. He 
 authorizes B, an adult, to sell said land. B conveys the same 
 to C. After A became of age, it is claimed that he ratified 
 the conveyance. A sues in ejectment. Can he recover? 
 
 A. Judgment for A. The question here is, can an infant 
 after arriving at age ratify the act of his agent performed 
 while he was an infant? This depends upon whether his ap- 
 pointment of an agent is a void or voidable act. If the former, 
 it cannot be ratified ; if the latter, it can be. In New York the 
 doctrine is laid down, that the only act an infant is incapable 
 of performing as to contracts is the appointment of an agent 
 or attorney. Whether the doctrine is founded upon solid 
 reasons may be doubted, but there is no doubt that it is law. 
 Fonda v. Van Horn, 15 Wend. 631. 
 
 Q. A appoints B, an infant, as his agent to sell certain goods. 
 B sells the goods to C. A afterwards seeks to disaffirm the 
 sale, and brings action to recover back the goods on the ground 
 that B's act was void, as an infant cannot be an agent. Judg- 
 ment for whom and why? 
 
 A. Judgment for C. "It is by no means necessary for a 
 person to be sui juris, or capable of acting in his or her own 
 right, in order to qualify himself or herself to act for others." 
 1 1 
 
2 AGENCY 
 
 Story's Agency, sees. 6, 7, 9. It is the undoubted law of agency, 
 that a person may do through another what he could do him- 
 self in reference to his own business and his own property, 
 because the agent is but the principal acting in another name. 
 This is axiomatic and fundamental. Qui facit per alium facit 
 per se. Story's Agency, sec. 440. 
 
 Q. In an action by A against B, the wife of C, to recover 
 for the repairs done to a building belonging to B, it appeared 
 that C, the husband, went to A and stated that his wife wanted 
 the repairs done to the said building. A accordingly made 
 the repairs of the value of $300, which B, the wife, refused 
 to pay, stating that she never authorized her husband to order 
 the said repairs. Conceding the facts as stated, who should 
 have judgment and why? 
 
 A. Judgment for B, the wife. There is no presumption 
 that the husband is the agent of the wife from the mere fact 
 of the marital relation. In order to create a liabiUty against 
 the wife, there must be some proof of an actual authority or 
 the wife's ratification of any contract that he may make re- 
 garding her property. Aarons v. Klein, 29 Misc. 639. 
 
 Q. A sends B, his servant, with a horse of A's to C with 
 instructions to sell the horse to C for $500 but in no case to 
 take any money from C. B sells the horse to C for $400 and 
 makes away with the money. C knows nothing of the instruc- 
 tions to B. What are the rights of A against C? State your 
 reasons. 
 
 A. A has no rights. "Where private instructions are given 
 to a general or special agent respecting the mode and manner 
 of executing the agency, intended to be kept secret and not 
 communicated to those with whom he may deal, such instruc- 
 tions are not to be regarded as limitations upon his authority, 
 and notwithstanding he disregards them, his act, if otherwise 
 within the scope of his agency, will be valid and bind his em- 
 ployer." Edwards v. Dooley, 120 N. Y. 540. 
 
AGENCY 3 
 
 Q. A was the freight agent of the defendant corporation, 
 and his duty and authority was to receive and forward freight 
 over the defendant's road, giving a bill of lading therefor. 
 He issued bills of lading for goods to B, although no goods 
 were shipped by B or delivered to the defendant. B trans- 
 ferred the bills of lading to C who had no notice. C sues the 
 defendant. Can he recover? 
 
 A. Yes. " It is a settled doctrine of the law of agency in this 
 state, that where the principal has clothed his agent with 
 power to do an act upon the existence of some extrinsic fact 
 necessarily and peculiarly within the knowledge of the agent, 
 and of the existence of which the act of executing the power 
 is itself a representation, a third person dealing with such 
 agent in entire good faith pursuant to the apparent power, 
 may rely upon the representation, and the principal is es- 
 topped from denying its truth to his prejudice." Finch, J., 
 in Bank of Batavia v. R. R., 106 N. Y. 195. 
 
 Q. The president and directors of a warehouse company 
 passed a resolution giving to the president of the company 
 authority to sign receipts for the goods in the warehouse. 
 The president issued a receipt to himself, claiming that he had 
 goods in the warehouse when in fact he had none. The presi- 
 dent then pledged such receipts to a bank and received money 
 upon it. The bank sues the company for the amount of the 
 receipt. Judgment for whom and why? 
 
 A. Judgment for the defendant. A general power of au- 
 thority given to an agent to do an act for his principal, does 
 not extend to a case where it appears that the agent is himself 
 the person on the other side. Where a power is intended to be 
 given to the agent to act as such, it must be expressed in lan- 
 guage so plain that no other interpretation can rationally 
 be given it. Bank of N. Y. v. D. & T. Co., 143 N. Y. 552. 
 
 (Note.) This case must be distinguished from the case of Hanover Nat'l 
 Bank v. D. & T. Co., 148 N. Y. 612, where it was lield that: "If an officer of 
 a warehouse company liaving express authority to issue negotiable ware- 
 
4 AGENCY 
 
 house certificates to others for goods deposited, but having no such authority 
 to issue certificates to himself, does issue warehouse certificates in his own 
 favor to the knowledge express or implied of the company's directors, their 
 acquiescence in such acts, after having a reasonable time to put an end 
 thereto, will permit the inference that the act of certifjdng in his own favor 
 was within the ofiicer's actual authority, and will estop the company from 
 denying as to purchasers for value, that the power to so certify in fact so 
 existed." 
 
 Q. In an action by A against B to recover the principal of a 
 certain note, it appeared that B had given A a note for certain 
 money loaned; that when the said note came due, A instructed 
 C, his agent, to collect the interest and take a new note there- 
 for. A did not indorse the note. C collected both the principal 
 and interest, surrendered the note to B, gave the interest to 
 A and made away with the principal. Conceding the above 
 facts as stated, who should have judgment and why? 
 
 A. Judgment for A. The agent had express authority to 
 collect the interest only. There was no apparent authority 
 from the mere possession of the note unindorsed to authorize 
 the payment of the principal sum to the agent, and therefore 
 B is not relieved from liability. Anyone who deals with an 
 agent does so at his peril; he should, in order to protect him- 
 self, take precautions to ascertain the extent of the agent's 
 authority, and one making payment of a note to an agent, 
 must show that the agent had actual authority to receive 
 pasTnent, or that there was apparent authority from the acts 
 in question. Doubleday v. Kress, 50 N. Y. 410. 
 
 Q. A loaned to B $5,000. B gave him (A) collateral as 
 security some certificates of stock for $15,000, and at the same 
 time also executed a power of attorney and transfer which 
 was attached to the said certificates. A then sold the certifi- 
 cates of stock to C for the full amount. B tendered to C $5,000 
 and interest and demanded the return of the certificates of 
 the stock, and upon the refusal of C to do so, B brought suit 
 against him. Judgment for whom and why? 
 
 A. Judgment for C. The power of attorney and transfer 
 executed by B gave A apparent authority to sell same. "The 
 
AGENCY 5 
 
 assignment and power were intended for these identical shares; 
 they, as well as the certificates were voluntarily intrusted with 
 apparent ownership and right of disposal, not merely by the 
 negligence of the true owner, but by his voluntary act, and 
 for the purpose of attesting to the world their title and power 
 in case the contingency should arise in which, according to 
 the understanding between them and the plaintiff, they would 
 be justified in resorting to the stock for their indemnity," 
 McNeil V. Bank, 46 N. Y. 325. 
 
 (Note.) In Bank v. Livingston, 74 N. Y. 223, it was held that where one 
 went to the bank and requested a loan on certain certificates of stock, stat- 
 ing that he wanted it for another, and which he himself held as collateral 
 to secure a loan he himself made to the owner of the said certificates, and 
 the bank requested him, before making the loan, that he should obtain a 
 transfer and power of attorney, and accordingly he did get a transfer and 
 power of attorney from the owner, the bank could not foreclose the lien 
 as against the owner, on the ground that the bank had notice that the stock 
 did not belong to the party to whom they made the loan, and that the trans- 
 fer and power of attorney did not give him apparent authority to pledge 
 the certificates for a loan. The transfer and power of attorney would have 
 given him the apparant power to sell the stock if he had claimed to be the 
 owner. 
 
 Q. A, who is trustee of the X estate, appoints B to act in his 
 stead. B fraudulently misapplies $5,000 of the trust funds. 
 A is sued for the amount. Is he liable? 
 
 A. A is absolutely liable. In general the power conferred 
 upon an agent is based upon special confidence or trust which 
 the principal has in the agent's personal ability or integrity, 
 and such power, in the absence of authority express or implied, 
 cannot be redelegated by the agent so as to bind the principal. 
 The maxim of Delegatus non potest delegare applies in such a 
 case. The authority of an agent to receive money is most 
 clearly a personal trust and confidence which cannot be dele- 
 gated. Bodine v. Ins. Co., 51 N. Y. 123. "An executor or 
 trustee empowered to sell land in his discretion, cannot au- 
 thorize an agent to contract for their sale. The power is a 
 personal trust which cannot be delegated, and a contract by 
 an agent is void." Newton v. Bronson, 13 N. Y. 587. 
 
b AGENCY 
 
 (Note.) An agent cannot delegate any portion of his authority requiring 
 the exercise of discretion or judgment, otherwise, however, as to powers or 
 duties merely ministerial or mechanical. Bank v. Norton, 1 Hill, 501. Where 
 an agent has authority to employ subagents, he will not be liable for their 
 acts or omissions, unless in their appointment he is guilty of fraud or gross 
 negligence, or improperly co-operates in the acts or omissions. But where 
 the agent has no authority, either express or implied, to appoint a subagent, 
 he will be responsible to his principal for the acts of a subagent appointed 
 by him. Elwell v. Chamberlain, 31 N. Y. 611. 
 
 Q. A directed B to sell his real estate, and authorized him 
 to take any steps necessary to sell the property. B employed 
 C, a broker, to find a purchaser. C effected a sale and brings 
 action against A for commissions. Can he recover? 
 
 A. No. The authority to take steps necessary to sell, does 
 not involve authority to employ another broker. Rice v. Post, 
 78 Hun, 547. "The rule was never appUed, and in reason can 
 never be applied, so as to validate a delegation of his agency 
 by a broker, else the principal would be at the mercy of his 
 broker, and might be burdened with liabilities to as many 
 deputies as the broker should choose to appoint. The law 
 is settled otherwise. When the subagent has been employed 
 without authority, and his acts are afterwards ratified, he 
 can recover no compensation from his principal, but must 
 look to the agent." 1 Am. & Eng. Ency. of Law, 395 ; Carroll v. 
 Tucker, 50 St. Rep. 611. 
 
 Q. The X Bank of New York receives a note payable in 
 Chicago from A and forwards it to the Traders' Bank of Chi- 
 cago for collection. The Traders' Bank negligently fails to 
 collect. A sues the New York Bank. Can he recover? 
 
 A. Yes. The doctrine that a bank receiving a note, draft, 
 or bill of exchange in one state for collection in another state 
 from a holder residing there is Uable for neglect of duty oc- 
 curring in its collection, whether arising from the neglect of 
 its own officers or that of its correspondent in the other state, 
 or an agent employed by such correspondent, in the absence 
 of any express or implied contract varying such liability, is 
 
AGENCY 7 
 
 established by many decisions in New York. Allen v. Mer- 
 chants' Bank, 22 Wend. 215; Walker v. Bank, 9 N. Y. 582; 
 Ayrault v. Pacific Bank, 47 N. Y. 570. 
 
 (Note.) A bank receiving for collection a check sent by another bank 
 which holds it only for collection, is the agent of the latter, and not of the 
 payee, because there is no right to delegate the authority in such a case. 
 Castle V. Corn Exchange Bank, 148 N. Y. 122. 
 
 Q. A, an agent, with power to issue negotiable paper, drew 
 a check for a purpose for which he was not authorized. B, his 
 principal, ratified the act, but subsequently refused to pay,' 
 claiming that there was no original authority. Is he liable? 
 
 A. Yes. To ratify is to give validity to the act of another. 
 A ratification is equivalent to a previous authority. It operates 
 upon the act ratified in the same manner as though the au- 
 thority had originally been given. "But before a principal can 
 be held to have ratified the unauthorized act of an assumed 
 agent he must have full knowledge of the facts, so that it can 
 be said that he intended to ratify the act. If his knowledge 
 is partial or imperfect he will not be held to have ratified the 
 unauthorized act, and the proof of adequate knowledge of 
 the facts should be reasonably clear and certain." Earl, J., in 
 Trustees, etc., v. Bowman, 136 N. Y. 520. 
 
 (Note.) Two acts may be ratified, — First, where an agent does an act in 
 excess of his authority. Second, where one assumes to act as the agent of 
 another without authority. "An individual having power to make a con- 
 tract may ratify or affirm it when made by one who without authority as- 
 sumes to be his agent; but if the individual himself has no such power he 
 can no more bind himself retroactively to its performance by affirmance or 
 ratification than he could have done prospectively in the first instance. 
 The power to ratify ex n termini implies a power to have made the contract, 
 and the power to ratify in a particular manner impUes the power to have 
 made the contract in that manner." Brady v. Mayor of N. Y., etc., 16 
 How. Pr. 432. 
 
 Q. A made a note payable to the order of B. He then forged 
 B's indorsement thereon, and then for its face value transferred 
 it to C. The first information B had of the forgery was a re- 
 ceipt of notice of dishonor as indorser. Subsequently he told 
 
8 AGENCY 
 
 C that the indorsement was a forgery, but that he would in- 
 dorse the note to save trouble, but he soon changed his mind 
 and refused to pay. A went to Europe. Can C recover against 
 B? 
 
 A. Yes. One whose name is forged to a note, may bind 
 himself on the instrument in New York by the unwritten rati- 
 fication of the signature as his own, made after delivery of the 
 note. Howard v. Duncan, 3 Lansing (N. Y.), 174; Thorne v. 
 Bell, Hill & Denio's Reports (Lalor's Suppl., N. Y.), 430; 
 Title Guarantee & Trust Co. v. Haven, 126 App. Div. 806. 
 
 Q. A gives B, his agent, power to sell real estate. B, knowing 
 that A is short of funds and in need of cash, obtains a mortgage 
 on the property and signs the same as A's agent under the 
 power to sell. He sends the money thus obtained to A, who 
 dies intestate having retained the money. What are the rights 
 of A's heirs as to the mortgage? 
 
 A. The heirs hold subject to the mortgage. By accepting 
 and retaining the money, which was the fruit of the agent's 
 act, without objection, the principal is presumed to have rati- 
 fied that act. Having received the benefits of the contract the 
 heirs could not, as their intestate had signified his acquiescence, 
 invoke the courts to relieve them of the obligation. Hyatt v. 
 Clark, 118 N. Y. 563. A principal cannot enjoy and retain 
 the fruits or benefits of the act of his agent, without adopting 
 and ratifying the instrumentalities by which those fruits were 
 obtained, even though employed without his authority or 
 knowledge. Baldwin v. Burrows, 47 N. Y. 199. 
 
 Q. A, the agent of B, sells a certain piece of land of B's to C, 
 and at the time of the sale makes fraudulent representations 
 to C to induce him to purchase. C sues B for the damages sus- 
 tained. Is B liable? 
 
 A. Yes. When an authorized agent acting within the scope 
 of his authority perpetrates a fraud for the benefit of his prin- 
 cipal, and the latter receives the fruits of it, he is Uable as for 
 
AGENCY 9 
 
 his own wrong. Bennett v. Judson, 21 N. Y. 238; Elwell v. 
 Chamberlain, 31 N. Y. 611. These authorities rest upon the 
 principle that when a party clothes another with authority 
 to speak in hisrbehalf, and indorses him to third persons as 
 worthy of trust axid confidence, those who are misled by the 
 falsehood and fraud of the agent are entitled to impute it to 
 the principal. The latter will not be permitted to retain the 
 fruits of a transaction infected with fraud, whether the deceit 
 he seeks to turn to his profit, was practiced by him or his ac- 
 credited agent. In such a case, he cannot separate the legal 
 from the illegal elements of the contract, and appropriate the 
 advantages it secures, while he rejects the corrupt instrumen- 
 talities by which they were obtained. "The rule which charges 
 a principal with the knowledge of his agent is for the protec- 
 tion of innocent third persons. If a person colludes with an 
 agent to cheat the principal, the latter is not responsible for 
 the act or knowledge of the agent." Ins. Co. v. Minsch, 53 
 N. Y. 144. 
 
 Q. A, a merchant, entered into an agreement with the X 
 company, a mercantile agency, for information as to the finan- 
 cial condition of C to be furnished by D, the agent of the X 
 company. D knowingly gave A false information concerning 
 C's financial standing. A, relying on the information, gave C 
 credit and was damaged thereby. In an action against the X 
 company for damages sustained thereby, will a recovery be 
 allowed? 
 
 A. Yes. A principal is liable for the fraud and deceit of its 
 agent which was committed for the principal in the course of 
 and as a part of the agent's employment and within the scope 
 of his authority, though the principal did not in fact authorize 
 the practice of such an act. Bank v. Dun, 51 Fed. Rep. 160. 
 
 Q. A is employed as an investigator for the X R. R. Com- 
 pany to interview witnesses and take statements from them. 
 In the course of an interview with B, a witness, in an action 
 pending against the company, A promises to pay B a sum of 
 
10 AGENCY 
 
 money if B will testify falsely in favor of the company. On 
 the trial of the action the attorney for the plamtiff offers to 
 introduce evidence showing A's attempted bribery of the wit- 
 ness. The company's attorney objects on the ground that A's 
 acts were unauthorized and not within the scope of his em- 
 ployment. How should the couri; rule and why? 
 
 A. The evidence is admissible as the act, although unlawful, 
 must be deemed to be within the scope of his employment. 
 "He was acting in the course of his employment, for he was 
 employed to procure witnesses. The power of the corporation 
 was intrusted to him with reference to that subject, to be used 
 as he saw fit. His acts related solely to that subject and were 
 done by hinn as its agent, wholly for its benefit. If he adopted 
 a method not contemplated by the defendant still it is responsi- 
 ble for what he did in the line of his employment to promote 
 its interest." Vann, J., in Nowack v. Ry. Co., 166 N. Y. 433. 
 
 (Note.) The declaration of an agent is only admissible against the prin- 
 cipal when made as part of a transaction undertaken in behalf of the principal, 
 or in the performance of the duties of his agency. An agent cannot bind 
 his principal, even in matters touching his agency when he is known to be 
 acting for himself, or to have an adverse interest. Ins. Co. v. R. R. Co., 
 139 N. Y. 146; Jarvis v. R. R., 148 N. Y. 652. 
 
 Q. A is the agent of B to deposit with the X Bank and to 
 procure the bank's checks therefor which he is to indorse and 
 transmit to his principal. A deposits the money to his own 
 credit without disclosing his agency, and in order to defraud B 
 for his own benefit by drawing against the deposits, A secretly 
 agrees that the bank's checks issued as memoranda of the 
 deposits and made payable to A's order under the assumption 
 that he was acting for himself alone should be returned to the 
 bank without deUvery to anyone. A mdorses the checks and 
 mails them to B and then draws out the amount to his credit 
 in the bank. Can B recover the amount of the checks from the 
 bank? 
 
 A. Yes, as B cannot be charged with notice of the agreement 
 made by A with the bank, as the object of such agreement 
 
AGENCY 11 
 
 was to defraud the principal. "The general rule that notice 
 to the agent, while acting within the scope of his authority 
 and in regard to a matter over which his authority extends, 
 is notice to the principal, rests upon the duty of disclosure by 
 the former to the latter of all the material facts coming to his 
 knowledge with reference to the subject of his agency and 
 upon the presumption that he has discharged that duty. The 
 presumption, however^ does not always arise for there are 
 several exceptions well recognized by the authorities. Thus 
 when the agent has no legal right to disclose a fact to his prin- 
 cipal, or he is engaged in a scheme to defraud his principal, 
 the presumption does not prevail, because he cannot in reason 
 be presumed to have disclosed that which was his duty to keep 
 secret, or that which would expose and defeat his fraudulent 
 purpose." Henry v. Allen, 151 N. Y. 1. 
 
 Q. A, the manager of a telegraph station, systematically 
 overcharges B, a customer, in the transmission of messages 
 and sends B monthly statements of the charges. A collects 
 the amounts of the statements from B and remits to the tele- 
 graph company the actual amount of the charges. B dis- 
 covering the overcharges brings action against the company 
 to recover the amount overpaid. Can he recover? 
 
 • 
 
 A. Yes. The act of A in making and retaining the over- 
 charge was, although unauthorized, done within the scope 
 of his authority. "A principal is liable to a third person for 
 the misconduct of his agent committed in the line of his em- 
 ployment, even though the offense was in excess of his au- 
 thority and the principal did not authorize, justify or know 
 of it." Birkett v. Tel. Co., 103 App. Div. 115, aff'd in 186 N. 
 Y. 591. 
 
 Q. A appoints B as his agent to sell his horse, instructing 
 him (B) not to warrant the soundness of the animal. B gives 
 a warranty on the sale. A is sued for breach of warranty. 
 Is he liable? 
 
 A. Yes. He is liable, as horses are usually sold with war- 
 
12 AGENCT 
 
 ranty, and the authority to warrant is imphed. Whether an 
 agent is authorized to give a warranty in a particular case, 
 must depend upon the character of his agency, the usage of 
 trade in the locahty in which the sale is made, and the subject 
 of the sale. Ordinarily an agent vested with discretion, and 
 having authority to do whatever is necessary to carry out the 
 object of his agency, may bind his principal by a warranty. 
 Ahearn v. Goodspeed, 72 N. Y. 106; Murray v. Smith, 4 Daly, 
 277. "The idea upon which is founded the right to warrant 
 on the part of an agent to sell a particular article, is that he 
 has been clothed with power to make all the common and 
 usual contracts necessary or appropriate to accomplish the 
 sale of the article intrusted to him. And if in the sale of that 
 kind or class of goods thus confided to him, it is usual in the 
 market to give a warranty, the agent may give that warranty 
 in order to effect the sale, and the law presumes that he had 
 such authority. If the agent with express authority to sell 
 has no actual authority to warrant, no authority can be imphed 
 where the property is of a description not usually sold with 
 warranty." Peckham, J., in Wait et al. v. Borne et al., 123 
 N. Y. 592; Bierman v. City Mills Co., 151 N. Y. 482. 
 
 Q. A sends B his shares of stock in the X Bank to be sold 
 at par. In order to induce C to purchase the stock, the broker 
 gives him a warranty in the name of his principal, that the 
 stock is actually worth par. The broker returns the proceeds 
 of the sale less his commission to A, with no information re- 
 garding the warranty. A retains the proceeds. The X Bank 
 is really insolvent at the time of this transaction, although A 
 knew nothing of the insolvency and actually thought the 
 stock was worth par. C was damaged to the extent of $5,000 
 by the deal. Can he maintain action against A on the warranty? 
 
 A. A is not hable on the warranty. An agent with express 
 authority to sell has no implied authority to warrant where 
 the property is of a description not usually sold with warranty. 
 One employed to make a sale of bank stock is not presump- 
 tively empowered to warrant it in the name of his principal. 
 
AGENCY 13 
 
 The receipt of the proceeds by the owner of the stock in igno- 
 rance of an unauthorized warranty by the agent, is not a rati- 
 fication of the unauthorized engagement. The ratification 
 of the act of an agent previously unauthorized, must, in order 
 to bind the principal, be with a full knowledge of all the ma- 
 terial facts. Smith v. Tracey, 36 N. Y. 79. 
 
 Q. X, Y and Z, who are trustees of the Seamen's Society, 
 sign, seal and deliver a bond to John Brown. They are sued 
 on the bond personally. Can the action be maintained? The 
 bond was executed in the following form: "X, Y & Z, trustees 
 of the Seamen's Society." 
 
 A. Yes. The seals are not those of the society, and the 
 affixing of the names of their offices does not relieve the parties 
 from liability. Such words will be regarded merely as de- 
 scriptive of the persons. Unless the promise purports to be 
 by the corporation it is that of the persons who subscribe to it; 
 and the fact of adding to their names some official title has 
 no signification as qualifying their obligation, and imposes 
 no liability on the corporation whose officers they may be. 
 This must be regarded as the long and well-settled rule in 
 this state. Taft v. Brewster, 9 Johns. 344; Hills v. Bannister, 
 8 Cowen, 31; Moss v. Livingston, 4 N. Y. 208. 
 
 Q. A contract under seal began by stating that it was made 
 between Thompson, by Smith, his attorney, and Jones. The 
 concluding was: "In witness whereof the said Smith, as attor- 
 ney for the said party of the first part has set his hand and 
 seal." Signed by Jones and by Smith, attorney for Thompson. 
 Thompson sues Jones. Jones demurs and answers that the 
 agreement was between himself and Smith, and that Thompson 
 cannot maintain the action. Judgment for whom and why? 
 
 A. Judgment for Thompson. When an authorized agent 
 executes a contract under seal in which he represents himself 
 as agent and discloses his principal, and by the terms of which 
 he assumes to contract for the principal only, in the absence 
 of any personal promise or covenant on his part, the contract 
 cannot be held to be his contract, for it is the contract of the 
 
14 AGENCY 
 
 principal who alone can sue and be sued upon it. The agent 
 cannot be liable individually thereon, although it is only signed 
 in his individual name. Whitford v. Laidler, 94 N. Y. 145. 
 
 Q. J is the president of the A Corporation, and G of theX Cor- 
 poration ; they make a joint note in the usual form to B. They 
 have the authority to make such notes for their respective 
 corporations; the note is drawn on a corporation blank with 
 the name of the A corporation across the end. The note is 
 signed J, president of the A Corporation, and G, president of 
 the X Corporation. Are they personally liable on the note? 
 
 A. Yes. "Where a negotiable promissory note has been 
 given for the payment of a debt contracted by a corporation, 
 and the language of the promise does not disclose the corporate 
 obligation and the signatures to the paper are in the names 
 of individuals, a holder, taking bona fide and without notice 
 of the circumstances of its making, is entitled to hold the note 
 as the personal undertaking of its signers, notwithstanding 
 they affix to their names the title of an office. Such an affix 
 will be regarded as descriptive of the persons and not of the 
 character of the liability. This rule is well settled and is 
 founded in the general principle that in a contract every 
 material thing must be definitely expressed and not left to 
 conjecture. Unless the language creates or fairly implies the 
 undertaking of the corporation, if the purpose is equivocal, 
 the obligation is that of its apparent makers. The appearance 
 upon the margin of the paper of the printed name of the cor- 
 poration was not a fact carrying any presumption that the 
 note was, or was intended to be, one by the company. It was 
 competent for its officers to obligate themselves personally 
 for any reason satisfactory to themselves, and, apparently to 
 the world they did so by the language of the note, which the 
 mere use of a blank form of a note having upon the margin 
 the name of their company, was insufficient to negative." 
 Gray, J., in Casco Nat. Bank v. Clark, 136 N. Y. 307. 
 
 Q. A gave B instructions to go to C and purchase a horse 
 for him. B went to C and made the purchase. The horse 
 
AGENCY 15 
 
 was delivered by C, and then B told C that the purchase was 
 for A. What rights has C in the matter? 
 
 A. C can sue either A or B, Where goods are sold to a per- 
 son whom the vendor believes to be a purchaser, but who in 
 fact bought as agent for another, the vendor may, on dis- 
 covery of this fact, maintain an action against the principal 
 for the purchase price. Meeker v. Claghorn, 44 N. Y. 349; 
 Kayton v. Bamett, 116 N. Y. 625. This is a case in which the 
 rule commonly known as the doctrine of undisclosed principal 
 applies. At first glance the rule is foreign to the idea of con- 
 tract (mutual assent), for the minds of A and C did not meet, 
 but the courts, in order that the person who obtains the benefit 
 of the contract shall not escape its burden, invoked in their 
 aid the fiction of identity, i. e., the principal and agent are 
 considered one and the same person, and hold the principal 
 liable. The doctrine of mutuality is applied in these cases 
 and the undisclosed principal is allowed to sue the other party. 
 
 Q. A makes a contract with B in writing. A is in fact acting 
 for C, an undisclosed principal. B sues C, and at the trial 
 offers evidence to show that the contract was in fact made 
 for C. Can B recover against C? 
 
 A. Yes. A party who has entered into a written contract 
 may maintain an action against the principal upon parol 
 proof that the contract was in fact made for the principal 
 where the agency was not disclosed by the contract and was 
 not known to the plaintiff when it was made. Such proof 
 does not contradict the written contract. It superadds a lia- 
 bility against the principal to that of the agent. That parol 
 evidence may be introduced in such a case to charge the prin- 
 cipal, while it would be inadmissible to discharge the agent, 
 is well settled by authority. Coleman v. Bank, 53 N. Y. 393; 
 Ludwig V. Gillespie, 106 N. Y. 653. 
 
 Q. A appointed B as his agent for the'purpose of purchasing 
 certain lands belonging to C. B, without disclosing the agency, 
 entered into a contract under seal with C whereby he agreed 
 
16 AGENCY 
 
 to purchase such lands at a specified price; the contract was 
 executed in his own name. C sues A for the purchase price, 
 offering to execute a good and sufficient deed. Can A recover? 
 
 A. No. "A was not a party to the agreement. He did not 
 sign it himself, nor did it purport to have been executed for him 
 by B. His name did not appear in it, and there is nothing upon 
 the face of the agreement to indicate that he was in any way 
 connected with or interested in the purchase. The covenants 
 in the agreement are solely between B and C. Those persons 
 only can be sued on an indenture who are named as parties 
 to it, and an action will not lie against one person on a covenant 
 which purports to have been made by another. It is true that 
 a principal may be charged upon a written parol executory 
 contract entered into by an agent in his own name, within 
 his authority, although the name of the principal does not 
 appear in the instrument and was not disclosed. But there 
 is a well-recognized exception to this rule in the cases of sealed 
 instruments. C's agreement was with B and not with A. To 
 change it from a specialty to a simple contract, in order to 
 charge the principal, is to make a different contract from the 
 one the parties intended. A seal has lost most of its former 
 significance, but the difference between specialties and simple 
 contracts is not obliterated." Andrews, J., in Briggs v. Part- 
 ridge, 64 N. Y. 357. 
 
 Q. A, who was agent for B, ordered certain painting done 
 to a building belonging to B at the agreed price of $250. The 
 painter did the work as ordered and sent his bill to A. The 
 painter knew that A was acting for some one, but for whom 
 A did not disclose as he would readily have done had the 
 painter asked. A refused to pay for the work, and then dis- 
 closed B, his principal. The painter brings action against A, 
 who defends on the ground that he was acting for B, and there^ 
 fore not liable. Judgment for whom and why? 
 
 A. Judgment for the painter. "An agent is personaUy 
 hable on a contract made for a principal not named by him, 
 
AGENCY 17 
 
 although he states to the contractor that he is not the owner 
 of the premises where the work is to be done, but is merely 
 the attorney for the owner." Nichols v. Weil, 30 Misc. 441. 
 "Knowledge in plaintiffs that defendant might have acted 
 as agent was not enough, and it was not the duty of the plain- 
 tiffs to inquire before paying whether the defendant was acting 
 as principal or agent; it was the duty of the defendant, if it 
 desired to be protected as agent, to have given notice of its 
 agency." Earl, J., in Holt v. Ross, 54 N. Y. 472; Cobb v. 
 Knapp, 71 N. Y. 348. "That an agent may contract in his 
 own personal capacity and thus be bound to the persons with 
 whom the contract is made, is elementary. It is competent 
 for an agent, although fully authorized to bind his principal, 
 to pledge his own responsibility instead. Such a personal 
 undertaking is not necessarily inconsistent with his character 
 as an agent, and when he has so bound himself, he will be 
 liable." Martin, J., in DeRemer v. Brown, 165 N. Y. 410. 
 
 Q. A, the owner of property, appoints B as his agent to 
 collect the rents of certain premises. A thereafter dies, and 
 one of the tenants continues to pay the rent to B. B thereafter 
 absconds. Can the administrator recover the rent from the 
 tenant? 
 
 A. Yes. The question is not new, and it has been uniformly 
 answered by our decisions to the effect that the death of the 
 principal puts an end to the agency, and therefore is an in- 
 stantaneous and unqualified revocation of the authority of 
 the agent. There can be no agent where there is no principal. 
 No notice is necessary to relieve the estate of the principal 
 of responsibility, even on contracts into which the agent had 
 entered with thiixi persons who were ignorant of his death. 
 Those who deal with an agent are held to assume the risk that 
 his authority may be terminated by death without notice to 
 them. Weber v. Bridgman, 113 N. Y. 600. 
 
 Q. A being indebted to B, his agent, gives him (B) au- 
 thority to sell certain goods and to pay himself from the pro- 
 2 
 
18 AGENCY 
 
 ceeds the amount which is due him. A dies before the goods 
 are sold, and his representatives seek to recover the goods 
 from the agent. Can they do so? 
 
 A. No. In this case, the power given is coupled with an 
 interest in the goods, and so irrevocable by the death of the 
 principal or otherwise. To make the agency irrevocable there 
 must be an interest in the subject of the agency itself, and not 
 a mere interest in the result of the execution of the agency. 
 Where power to sell property is given as a security for the 
 purpose of reimbursing the agent, the power is not revocable. 
 The law on this point has been very well settled since the early 
 and very leading case of Hunt v. Rousmanier, 8 Wheaton 
 (U. S.), 174, where Chief Justice Marshall who delivered the 
 opinion of the court, says: "The general rule, that a power 
 ceases with the life of the person giving it, admits of one ex- 
 ception. If a power be coupled with an interest, it survives 
 the person giving it, and may be executed after his death. 
 As this proposition is laid down too positively in the books 
 to be controverted, it becomes necessary to inquire what is 
 meant by the expression, 'a power coupled with an interest.' 
 Is it an interest in the subject upon which the power is to be 
 exercised, or is it an interest in that which is produced by the 
 exercise of the power? We hold it to be clear, that the interest 
 which can protect a power after the death of a person who cre- 
 ates it, must be an interest in the thing itself. In other words, 
 the power must be engrafted on an estate in the thing." The 
 doctrine of this case has been uniformly followed in New York. 
 Knapp V. Alvord, 10 Paige's Ch. 205; Hutchins v. Hebbard, 
 34 N. Y. 24. 
 
 Q. A hired B as his agent, and in the contract of hiring it 
 was agreed that the authority given the agent to sell goods 
 should not be revoked for five years. After one year, A, the 
 principal, revokes the agency. The agent refuses to cease 
 acting. What are the rights of the parties? 
 
 A. The principal may revoke but must respond in damages 
 for breach of the contract. The distinction must be drawn 
 
AGENCY 19 
 
 between tlie power and the right to revoke. As agency is a 
 personal relation, it depends for its existence upon the will 
 of the principal who creates it; and he may, therefore, recall 
 the appointment of an agent of his own selection at his pleas- 
 ure, unless the agency is coupled with an interest. Although 
 the power to revoke may exist in a given case, yet it cannot 
 be exercised without rendering the principal liable in damages, 
 when he has agreed that the agency shall not be revoked for a 
 certain period. Hunt v. Rousmanier, supra. 
 
 Q. A engaged a broker to sell a certain piece of property 
 at a certain price; afterwards A sells it to C, a friend of his; 
 next day the broker brings a purchaser willing to buy at the 
 stipulated price. What are the broker's rights against A? 
 
 A. The broker has no rights. This is a revocation by dis- 
 position of the subject-matter, and as the property which 
 was the subject-matter of the agency, has been sold by the 
 principal, the agency ceases ipso facto. In such a case, the 
 principal violates no rights of the broker by selling to the 
 first party who offers the price asked. He failed to find or 
 produce a purchaser upon the terms prescribed in his employ- 
 ment, and the principal was under no obligations to wait 
 longer, that he might make further efforts. Where no time 
 for the continuance of a contract is fixed by its terms, either 
 party is at liberty to terminate at will, subject only to the 
 ordinary requirements of good faith. Usually the broker is 
 entitled to a fair and reasonable opportunity to perform his 
 obligation, subject of course to the right of the seller to sell 
 independently. But, that having been granted to him, the 
 right of the principal to terminate his authority is absolutely 
 unrestricted, except only that he may not do it in bad faith, 
 and as a mere device to escape the payment of the broker's 
 commission. The principal has an absolute right before a 
 bargain is made, while negotiations remain unsuccessful be- 
 fore commissions are earned, to sell the property and thus 
 revoke the broker's authority, and the latter cannot there- 
 after claim compensation for a sale made by the principal. 
 
^ AGENCY 
 
 Wylie V. Marine Nat. Bank, 61 N. Y. 416; Sibbald v. Bethle- 
 hem Iron Co., 83 N. Y. 378. 
 
 Q. A is employed by B as agent. Thereafter A is discharged. 
 Subsequent to his discharge A buys goods from C in the name 
 of B and then absconds with the goods. Is B hable for the 
 value of the goods? 
 
 A. Yes. When one has constituted and accredited another 
 his agent to carry on his business, the authority of the agent 
 to bind the principal continues even after an actual revoca- 
 tion, until notice of the revocation is given; and as to persons 
 who have been accustomed to deal with such agent, until 
 notice of the revocation is brought home to them. As to prior 
 dealers actual notice is necessary, while as to others construc- 
 tive notice, for instance, publication in a newspaper is held 
 sufficient. Clafhn v. Lenheim, 66 N. Y. 301. 
 
 Q. A, a commercial agent, sold some goods to B on thirty 
 days' credit. The house accepted the order and shipped the 
 goods. The agent was instructed by the house he represented 
 to make no collection. At the expiration of thirty days' time, 
 the agent called upon B and presented a bill for the goods. 
 B paid him (A) the amount thereof. A subsequently ab- 
 sconds. B is sued by the house for the price of the goods. 
 Is he liable, and upon whom does the loss fall? 
 
 A. The loss must fall upon B. Ordinarily a mere sales 
 agent has no authority to receive payment for goods sold by 
 him for the owner; his only authority is to find a purchaser. 
 Mere authority to sell does not imply authority to collect. 
 But where a person is apparently clothed with full authority 
 to sell and deliver, a payment to such person is good as against 
 the owner. Maxfield v. Carpenter, 84 Hun, 450. 
 
 (Note.) Where goods are sold by an agent, and there is notice direct or 
 implied to pay the price to the principal, payment by the vendee to the 
 agent will not bind the principal nor protect the vendee. Lamb v. Hirsch- 
 berg, 1 App. Div. 518. 
 
AGENCY 21 
 
 Q. A appoints B as his agent to sell a certain piece of real 
 estate for him, naming $10,000 as the price. B is able to secure 
 $15,000 for the property and sells for that amount. He gives 
 $10,000 to his principal and retains the balance. A upon 
 discovering the facts consults you. What are his rights? 
 
 A. He can recover the $5,000 from his agent. An agent 
 owes a duty to his principal to secure the best price he can. 
 It was the duty of the agent to get the highest price for the 
 real estate that could be obtained for it in the market. An 
 agent has duties to discharge of a fiduciary character towards 
 his principal, and will not be allowed to make secret profits. 
 Dunlop v. Richards, 2 E. D. Smith, 181; Bain v. Brown, 56 
 N. Y. 285. 
 
 Q. A employs B to purchase silk for him at $1 per yard. 
 B informs A that he has purchased for that price. He then 
 sends A the desired quantity of his own silk. B sues for the 
 price. Can he recover? 
 
 A. No. An agent cannot sell his own goods to his principal 
 without the knowledge of the latter, as the fiduciary relation 
 which exists between them forbids it. Conkey v. Bond, 36 
 N. Y. 427. "It amounted to a sale by the plaintiffs of 100 
 shares of their own stock to the defendant, which was not 
 binding upon the defendant for the reason that the law does 
 not permit an agent employed to purchase, to buy of himself. 
 It is no answer that the intention was honest and that the 
 brokers did better for their principal by selling him their own 
 stock than they could have done by going into the open market. 
 The rule is inflexible, and although its violation in the particu- 
 lar case caused no damage to the principal, he cannot be com- 
 pelled to adopt the purchase." Rapallo, J., in Taussig et al. 
 V. Hart, 58 N. Y. 425. 
 
 Q. A, the owner of real estate, placed it in the hands of B 
 for sale. B's clerk, unknown to A, became the purchaser for 
 $5,000, after having informed A in B's name that it was doubt- 
 
22 AGENCY 
 
 ful if more could be obtained. A subsequently becoming dis- 
 satisfied with the. sale, consults you. What are his rights 
 against B and the clerk? Reasons. 
 
 A. A can have the conveyance set aside, or have judgment 
 compelling B or the clerk to pay to him the ascertained value 
 of the land. "It is a principle that an agent, trustee or other 
 person in a fiduciary capacity, can never be a purchaser; 
 and I assume it as not requiring proof that this principle 
 must be admitted, not only as estabUshed by adjudication, 
 but also as foimded in indispensable necessity, to prevent that 
 great inlet of fraud and those dangerous consequences which 
 would ensue if agents or trustees might themselves become 
 purchasers, or if they were not in every respect kept within 
 compass." Munro v. Allaire, 2 Caines' Cases (N. Y.), 183. 
 This rule has been aflirmed in many subsequent cases. Dob- 
 son V. Racey, 8 N. Y. 216; Jewett v. Miller, 10 N. Y. 402. 
 " It is undeniable from these authorities, that if the purchase 
 in this case had been made by B, it could not be sustained. 
 Does the same principle apply to a purchase made by the 
 clerk? It is not perceived upon what substantial ground a 
 distinction can be drawn. Whatever duty B owed to A, he, 
 the clerk, equally owed the same. And it has so been held." 
 Poillon V. Martin, 1 Sandf. Ch. 569; Gardner v. Ogden, 22 
 N. Y. 327. 
 
 Q. A engaged B, a broker, to sell his farm, and agreed to 
 pay 5% commission. C, about the same time, also engaged 
 B to look up a farm for him and agreed to pay 5% commission. 
 B brought A and C together, and they closed the transaction. 
 Neither party knew that B was acting for the other. B charges 
 both A and C the 6% commission, and they both refuse to 
 pay it after discovering the facts. B comes to you for advice. 
 What are his rights? 
 
 "^ A. B can recover from both. Real estate brokers employed 
 as middlemen to bring purchasers and sellers together to en- 
 able them to make their own bargain, may charge commissions 
 
AfiBNCY 23 
 
 to both parties. They are not agents to buy and sell, and not 
 within the rule which prohibits their acting without consent, 
 as agent for both buyer and seller. Siegel v. Gould, 7 Lansing 
 (N. Y.), 177. "It is undeniable that where the broker or 
 agent is invested with the least discretion, or where the party 
 has the right to rely upon the broker for the benefit of his 
 skill or judgment, in any such case, an employment of the 
 broker by the other side in a similar capacity, or in one where 
 by possibility his duty and interest might clash, would avoid 
 all his right to compensation. The whole matter depends 
 upon the character of his employment." Knauss v. Krueger 
 Brewing Co., 142 N. Y. 70. Also Gracie v. Stevens, 56 App. 
 Div. 203; Siegel v. Rosenzweig, 129 App. Div. 547. 
 
 (Note.) Where in a negotiation for the sale or exchange of real estate, a 
 broker is employed by both parties with notice that he is acting for the other 
 in the matter, and with such notice each agrees to pay him his commissions, 
 he can recover from both. Rowe v. Stevens, 53 N. Y. 621. 
 
 Q. Your client hands a broker $10,000 to loan on bond and 
 mortgage,' which he did. The bond and mortgage were left 
 with the broker to collect the semi-annual interest when due, 
 but not to collect the principal when due. The broker col- 
 lected the principal and interest, and by a forged satisfaction 
 piece satisfied the record and gave the bond and mortgage to 
 the mortgagor and absconded with the principal. Who must 
 bear the loss? 
 
 A. The loss falls upon the mortgagee, as the mortgagor is 
 authorized to infer that the agent is empowered to receive 
 both interest and principal from his having possession of the 
 bond and mortgage. Williams v. Walker, 2 Sandf. Ch. 325. 
 A mortgagor who makes payment to one, other than the mort- 
 gagee, does so at his peril. If the payment be denied, upon 
 him rests the burden of proving that it was paid to one clothed 
 in authority to receive it. There is, however, one exception 
 to this rule. If payment be made to one having apparent 
 authority to receive the money, it will be treated as if actual 
 authority had been given for its receipt. So if a mortgagee 
 permits a broker who negotiates a loan to retain in his posses- 
 
24 AGENCY 
 
 sion the bond and mortgage after the principal is due, and the 
 mortgagor with knowledge of that fact and relying upon the 
 apparent authority thus afforded, shall make a payment to 
 him, the owner will not be permitted to deny that the attor- 
 ney possessed the authority which the presence of the se- 
 curities indicated he had. Having conferred the apparent 
 authority upon the agent, the principal is estopped from deny- 
 ing that the actual authority existed. Smith v. Kidd, 68 N. Y. 
 130; Brewster v. Carnes, 103 N. Y. 556. 
 
 Q. A through B, his attorney, loaned C $8,000 on bond 
 and mortgage for five years. The papers were left in B's pos- 
 session, and he was authorized to collect the interest but not 
 the principal. After the principal became due, B received 
 from C two payments of $1,000 each to apply on the principal, 
 the bond and mortgage being each time produced by B. On 
 a subsequent occasion, $1,000 more was paid to B to apply 
 on the principal, but the bond and mortgage were not pro- 
 duced, though B then had them in his possession and told C 
 so. B then sold the bond and mortgage and forged an assign- 
 ment of them to the purchaser. After that B received from 
 C the balance due upon the mortgage. A brings foreclosure. 
 Can he recover, and what are the rights of the parties? 
 
 A. Judgment for A for $5,000. Clearly as to the first two 
 pajonents, the attorney had apparent authority to receive 
 the principal, and the mortgagor could not deny to them the 
 effect of payment pro tanto by proof that he did not have 
 actual authority. As to the subsequent payment of $1,000, 
 it is true, C did not at the time of making the payment see the 
 bond and mortgage, but it was actually in the possession of 
 the attorney, and the attorney so informed him. Here then 
 was possession and information of the possession. It was pos- 
 session upon which he acted, and inasmuch as it was true, it 
 constituted apparent authority. If it turned out to be un- 
 true, it could not have availed him. There is no ground for in- 
 sisting that a party must actually see and examine the securi- 
 ties in order to entitle him to the protection of the doctrine 
 
AGENCY 25 
 
 of apparent authority; if he have trustworthy information 
 of the fact which he beUeves and rehes upon, and it shall prove 
 to be true, there seems to be no reason why it should not avail 
 him as well as a personal examination of the securities. It 
 follows that the defendant should have been credited with 
 the third payment of $1,000. As to the remaining $5,000 
 that was paid to B after he had parted with the bond and 
 mortgage, C's failure to take the precaution of ascertaining 
 whether the attorney was actually in the possession of the 
 securities when he paid the $5,000, deprived him of the right 
 to assert that he was induced to make the payment because 
 it appeared to him that the attorney had the right to receive 
 the money. "Information of the physical fact of possession 
 by the attorney is alone effectual for protection. And he must 
 have such knowledge when every payment is made, for no 
 presumption of a continuance of possession can be indulged 
 in, for the purpose of giving support to an apparent authority 
 on the part of an attorney to act, where no actual authority 
 exists. The rule comprises two elements: First, possession 
 of the securities by the attorney with the consent of the mort- 
 gagee; second, knowledge of such possession on the part of 
 the mortgagor. The mere possession of the securities by the 
 attorney is not sufficient. The mortgagor must have knowl- 
 edge of the fact. It is the appearance of authority to collect, 
 furnished by the custody of the securities, which justifies him 
 in making payment. And it is because the mortgagor acts 
 in reliance upon such appearance, an appearance made possi- 
 ble only by the act of the mortgagee in leaving the securities 
 in the hands of an attorney, that estops the owner from deny- 
 ing the existence of authority in the attorney which such 
 possession indicates." Parker, J., in Crane v. Gruenewald, 
 120 N. Y. 274. 
 
 (Note.) "Where an agent who invests for his principal in an outstanding 
 bond and mortgage, is permitted to collect the interest thereon and to retain 
 possession and control of the security, he has apparent authority after ma- 
 turity to receive payment thereof, and his principal is estopped from deny- 
 ing that he possessed such authority." Central Trust Co. v. Folsom, 167 
 N. Y. 285. 
 
26 AGENCY 
 
 Q. A, doing business in France, sends B as agent to New 
 York with authority to receive consignments of goods, to care 
 for and sell them, and after paying all expenses from receipts 
 to remit the balance to A. B borrows $1,500 from C and does 
 not pay the same. C sues A for the money loaned. Can he 
 recover? 
 
 A. No. There is no authority to be imphed that the agent 
 could borrow money for his principal from the naked power 
 to receive and sell property and remit the proceeds. To au- 
 thorize an inference of authority in an agent, it must be prac- 
 tically indispensable to the , execution of the duties really 
 delegated; it is not sufficient that the act of the agent is 
 convenient or advantageous. Bickford v. Menier, 107 N. Y. 
 490. 
 
 Q. An agent having a sample in his possession, warrants 
 the goods to come up to the sample. When A, a purchaser, is 
 sued for the purchase price and he sets up the breach of the 
 warranty, the plaintiff sets up that the agent had no authority. 
 Is this defense to the counterclaim available? 
 
 A. No. An agent authorized to sell property must be pre- 
 siuned to possess such authority to make such representations 
 in regard to the quality and condition of the goods sold, as 
 usually accompany such transactions. Therefore an agent, 
 who has been given authority to sell goods by sample, has 
 implied power to warrant the quality of the goods and that the 
 bulk corresponds with the sample. Meyer v. Dean, 115 N. 
 Y. 556. 
 
CHAPTER II 
 
 Bailments 
 
 Q. A takes fifty bushels of wheat to a miller to be made into 
 flour. Miller sells the wheat to B. What rights has A in the 
 matter? 
 
 A. A can replevy the wheat from B, or sue either the miller 
 or B for conversion. An agreement to deliver wheat to be 
 manufactured into flour is a bailment merely, and not a sale, 
 and therefore A may replevy the wheat. Mallory v. Willis, 
 4 N. Y. 76. Where a contract is made with a manufacturer 
 to deliver to him raw materials to be returned manufactured, 
 the contract is one of bailment and not of sale, and title to 
 the articles when manufactured remains in the original owner. 
 Foster v. Pettibone, 7 N. Y. 433. The fundamental distinc- 
 tion between a bailment and a sale is, that in the former, the 
 subject of the contract, although in an altered form, is to be 
 returned to the owner; whilst in the latter there is no obliga- 
 tion to return the specific article; the party receiving it is at 
 liberty to return some other thing of equal value in place of it. 
 
 Q. A, a farmer, makes a contract with B, a manufacturer, 
 whereby A agrees to deUver to B certain produce, and B agrees 
 to manufacture same into pickles. It is also agreed between 
 the parties that the pickles are to be sold and the proceeds 
 divided between them. The sheriff, upon an execution of a 
 judgment against B, levies on the pickles. A sues the sheriff 
 in conversion. Can he recover? 
 
 A. Yes. "When property in an unmanufactured state is 
 delivered by one person to another, upon a contract that it 
 shall be manufactured or improved by his labor and skill, 
 and when thus improved in value, shall be divided in certain 
 
 27 
 
28 BAILMENTS 
 
 proportions between the respective parties or sold and the 
 proceeds divided, it constitutes a bailment, and the original 
 owner retains his exclusive title to the property until the con- 
 tract is completely executed, although the labor to be per- 
 formed by the bailee may be equal or greater in value than 
 that of the property when received by him." Sattler v. Hal- 
 leck, 160 N. Y. 291. 
 
 Q. A, a contractor, gives to B, a tailor, cloth to make 100 
 suits of clothes; suits to be made according to sample, and 
 at a certain price. B makes the clothes, but they are not ac- 
 cording to sample, and A refuses to pay for them. Who has 
 the title to the cloth while in the possession of B? What are 
 the rights of the parties? 
 
 A. Title remains in A, and B cannot recover as the suits 
 were not made according to sample. The owner of materials 
 who delivers them to another to be manufactured into goods 
 does not lose his property therein, nor is he precluded by re- 
 ceiving the manufactured articles from asserting his title, and 
 at the same time resisting a recovery for the work on the ground 
 that the workman has not performed his contract. Mack v. 
 Snell, 140 N. Y. 193. 
 
 Q. A and B contract, A to furnish the principal part of the 
 materials, and B some minor materials, and to do the work 
 necessary to make a quantity of shears, which are to corre- 
 spond to a sample furnished by A. Part of the shears have 
 been made and deUvered, when it is found that they have a 
 latent defect, and A refuses to take any more or to pay for 
 those already deUvered. What are the rights of the parties? 
 
 A. B has no rights: "The contract was one of bailment and 
 not of sale and purchase, and so title to the completed articles 
 was at all times in the bailor, and this, notwithstanding his 
 refusal to receive them; the bailees having wholly failed to 
 perform were not entitled to recover anything for their work; 
 and the acceptance of a part of the articles, and the omission 
 to return them on discovery of the defect or to notify bailees 
 
BAILMENTS 29 
 
 thereof, did not preclude the bailor from claiming nonper- 
 formance, as he had the absolute right to retain them, and 
 was neither bound to inspect them or notify bailees of his 
 objection; also the bailor was entitled to recover as upon a 
 counterclaim as damages, the difference between the price 
 agreed upon for bailee's work and the value of the articles 
 had they been made according to sample." Mack v. Snell, 
 supra. 
 
 Q. A loaned to B certain war relics to be exhibited in his, 
 B's, museum to which an admission fee was charged, and the 
 proceeds thereof given to charity. The war relics were to be 
 returned at the end of one year, and A was to receive nothing 
 for their use. At the end of nine months and without any 
 fault of B, the said war relics were destroyed by fire. A brings 
 action against B to recover their value. The above facts ap- 
 pearing, judgment for whom and why? 
 
 A. Judgment for B. As the loss was occasioned by no fault 
 of B, the law will imply a condition to the return of articles 
 loaned, that they shall be in existence at the time they are 
 to be returned, and in case they are destroyed without any 
 fault of the borrower, their return will be excused. Young v. 
 Leary, 135 N. Y. 169. 
 
 Q. A delivered to B 1,000 bushels of wheat from which he 
 was to receive 200 barrels of flour. The miller placed the 
 wheat in his granary, which without his negligence, was burnt. 
 Upon whom does the loss fall? Why? 
 
 A. The loss must fall upon A. This is a bailment and not a 
 sale as B was to deliver flour from the same wheat received. 
 A bailee is only liable for loss occasioned by his own negligence; 
 he is not an insurer. "The cases agree that where a bailee of 
 goods, although liable to their owner for their loss only in case 
 of negUgence, fails nevertheless upon their being demanded, 
 to deliver them or account for such nondelivery; this is to be 
 treated as prima facie evidence of negligence. Bumel v. R. 
 R. Co., 45 N. Y. 184; Steers v. Liverpool S. S. Co., 57 N. Y. 1; 
 
30 BAILMENTS 
 
 Fairfax v. R. R. Co., 67 N. Y. 11. The rule proceeds either 
 from the necessity of the case, it being presumed that the 
 bailee has exclusive knowledge of the facts and that he is able 
 to give the reason for his nondelivery, if any exist, other than 
 his own act or fault, or upon a presumption that he actually 
 retains the goods and by his refusal converts them. But where 
 the refusal to deliver is explained by the fact appearing that 
 the goods have been lost, either destroyed by fire or stolen 
 by thieves, and the bailee is therefore imable to deliver them, 
 there is no prima facie evidence of his want of care, and the 
 court will not assume in the absence of proof on the point, that 
 such fire or theft was the result of his negUgence. Schmidt v. 
 Blood, 9 Wend. 269; Lamb v. R. R. Co., 46 N. Y. 271. It will 
 be seen as the result of these authorities, that the burden is 
 ordinarily upon the plaintiff alleging neghgence, to prove it 
 against a warehouseman who accounts for his failure to de- 
 liver by showing a destruction or loss by fire or theft. It is 
 of course not intended to hold that a warehouseman, refusing 
 to deliver goods, can impose any necessity of proof upon the 
 owner by alleging as an excuse, that they have been stolen 
 or burned. These facts must appear or be proven with reason- 
 able certainty. The warehouseman in the absence of bad 
 faith is only Uable for negligence. This burden is never shifted 
 from him. If he proves the demand upon the warehouseman 
 and his refusal to deliver, these facts unexplained are treated 
 by the courts as prima facie evidence of negligence; but if 
 either in the course of his proof or that of the defendant, it 
 appears that the goods have been lost by theft, the evidence 
 must show that the loss arose from the negligence of the ware- 
 houseman." Hand, J., in Claflin v. Meyer, 75 N. Y. 260. 
 
 Q. A leaves a watch with a jeweler to be repaired. The 
 shop was burglariously entered without fault of the jeweler, 
 and A's watch was stolen. A brings action against the jeweler! 
 Can he recover? State the rule. 
 
 A. Upon it appearing that the goods were lost by a burglary 
 committed upon the defendant's shop, it was for the plaintiff 
 
BAILMENTS 31 
 
 to establish affirmatively, that such burglary was occasioned 
 or was not prevented by reason of some negligence or omission 
 of due care on the part of the jeweler, and as there was no 
 negligence or fault on the part of the jeweler, A clearly could 
 not recover. The rule is, that the bailee is only liable for loss 
 of goods when he has been negligent. Claflin v. Meyer, supra. 
 "In the present case the plaintiff alleged in his complaint and 
 it appeared that the loss resulted from the destruction of the 
 factory by fire. From that fact alone, no presumption arose 
 to furnish a prima facie case against the defendant. But 
 upon the main issue, whether it was attributable to the negli- 
 gence of the defendant, the burden was with the plaintiff." 
 Stewart v. Stone, 127 N. Y. 500. 
 
 (Note.) "Negligence may in a proper case be presumed from the mere 
 happening of the accident, as where the bailee's warehouse in which the 
 property is stored, collapses while repairs necessitated by a fire are being 
 made." Kaiser v. Lattimer, 40 App. Div. 149. 
 
 Q. A, while traveling, stopped at the B hotel and placed for 
 safe-keeping his valuables with the owner of the hotel who 
 put them in a safe for that purpose. The safe was burglariously 
 broken open and A's valuables stolen. A brings action against 
 the owner of the hotel. Can he recover? 
 
 A. Yes, as the hotel keeper is considered an insurer of the 
 goods and valuables of his guests. "The principle upon which 
 innkeepers are charged by the common law as insurers of the 
 money or personal. effects of their guests originated in public 
 policy. It was deemed to be a sound and necessary rule that 
 this class of persons should be subjected to a high degree of 
 responsibility in cases where an extraordinary degree of con- 
 fidence is necessarily reposed in them; and where great tempta- 
 tion to fraud and danger of plunder exists, by reason of the 
 peculiar relations of the parties." Adams v. N. J. Steamboat 
 Co., 151 N. Y. 163; Mowers v. Fethers, 61 N. Y. 35. "The 
 liability of an innkeeper for the goods of his guest, has been 
 settled for centuries. The act of 1855 does not purport to 
 create it nor even to declare it. It assumes the liability. It 
 
32 BAILMENTS 
 
 enacts that whenever the proprietors of a hotel shall provide a 
 safe in their office for the keeping of money, jewels or orna- 
 ments, belonging to their guests and shall notify their guests 
 thereof, and a guest shall neglect to deposit his money, jewels 
 or ornaments therein, the proprietor shall not be Uable for 
 the loss of the same by his guest. This act assumes that be- 
 fore its passage, the innkeeper was liable for the loss of the 
 money, jewels or ornaments of his guest. It assumes that he 
 still remains liable, if a deposit is made by the guest of his 
 money or jewels according to the terms of the act. It neither 
 enlarges or restricts the Uability of the innkeeper. It leaves 
 it as the common law fixes it, with the condition as to money 
 and jewels, that if a particular notice is given by the innkeeper, 
 the Uability shall not attach unless such money and jewels are 
 deposited in the office safe. . . . The UabiUty stands there- 
 fore as the contunon law fixed it." Hunt, C, in Wilkins v. 
 Earle, 44 N. Y. 172. 
 
 Q. A who was a warehouseman agreed for a certain com- 
 pensation to permit B to store a quantity of goods in A's ware- 
 house. A assured B that his goods would be guarded day and 
 night. The goods were stolen by men in charge of the build- 
 ing. A brings action against B. Can he recover? State the 
 relation between the parties. 
 
 A. Yes. The relation existing between the parties was that 
 of bailor and bailee, and as the bailee was a warehouseman, 
 he ought to have used reasonable diUgence in watching B's 
 goods, and as they were stolen by men in care of the ware- 
 house, A is liable. Jones v. Morgan, 90 N. Y. 4. 
 
 Q. A stored goods in B's warehouse at the agreed price of 
 $50 a month. The goods were seized under and by virtue of 
 an action in replevin against A. Is B liable to A? 
 
 A. No. A bailee for hire may excuse himself for a failure to 
 deliver the property to the bailor when called for, by showing 
 that the property was taken out of his custody under the au- 
 thority of a valid legal process, and that within a reasonable 
 
BAILMENTS 33 
 
 time he gave notice of that fact to the owner. Bliven v. R. R., 
 36 N. Y. 403; Roberts v. S. S. Co., 123 N. Y. 57. 
 
 (Note.) Warehousemen are liable for losses occasioned by innocent mis- 
 takes on their part in deUvering goods to those not entitled to receive them. 
 Bank of Oswego v. Doyle, 91 N. Y. 32. 
 
 Q. A pledged with B two diamond studs. B placed one 
 of the studs in his safe, and the other he wore in his necktie. 
 Thereafter the stud in the safe was stolen, and subsequently 
 thereto the one in the tie was also stolen. A demands the 
 return of the diamonds, and upon B's failure to deliver them, 
 brings suit. Can he recover? 
 
 A. He cannot recover as to the one stolen from the safe, 
 but may recover as to the one stolen from the tie. A pawn- 
 broker or bailee is only liable for ordinary diligence, and where 
 his place of business is broken into, and articles pledged are 
 stolen therefrom, he is not Uable if he exercised ordinary dili- 
 gence. Abbett V. Frederick, 56 How. Pr. 68. "Jewels held 
 in pawn may be worn, if the pawnee takes care not to lose or 
 injure them, the pawnee being liable for any loss through 
 theft or otherwise which might happen in the wearing, for- 
 the pawn is so far in the nature of a deposition, that it can be 
 used but at the peril of the pawnee." Sheridan v. Presas, 18 
 Misc. 180; Lawrence v. Maxwell, 53 N. Y. 19. 
 
 Q. A leaves his horse in first class condition with B to board, 
 at the agreed price of $20 per month, telling B that he is not 
 to use the horse, and is only to give him such exercise as can 
 be given with a halter; B does not heed these instructions and 
 allows his wife to drive the horse, as a result of which the animal 
 becomes foundered. When A finds this out, he refuses to pay 
 board any longer for the horse and abandons him as utterly 
 worthless. What action will A bring, and what will be the 
 measure of damages? 
 
 A. A can sue in conversion, the measure of damages being 
 the value of the horse. A bailee for hire who uses the prop- 
 3 
 
34 BAILMENTS 
 
 erty contrary to instructions of the bailor, is liable for a con- 
 version thereof. Collins v. Bennett, 46 N. Y. 490. 
 
 (Note.) Gratuitous bailment is defined by Allen, J., in Bank v. Bank, 60 
 N. Y. 295, as follows: "The defendant was a gratuitous bailee, that is a de- 
 pository without compensation for the benefit of the bailor, and was therefore 
 only liable for gross negligence, which is defined in various ways. What 
 constitutes gross negligence, that is such want of care, as would charge a 
 gratuitous bailee for loss, must depend very much upon the circumstances 
 to which the term is to be applied. It has been defined to be the want of 
 that ordinary diligence and care which a usually prudent man takes of his 
 own property of the like description. 
 
 Q. A places 100 crates of eggs for cold storage in the X Cold 
 Storage Warehouse. The Warehouse Company negligently 
 permitted the supply of ice to run short so that the temperature 
 rose and the eggs were spoiled. A brings action against the 
 Company to recover damages sustained. Judgment for whom 
 and why? 
 
 A. Judgment for A. "A Cold Storage Warehouse Company, 
 in the absence of an express agreement, impUedly undertakes 
 to maintain the necessary temperature required for the pres- 
 ervation of property stored with it by its customers for the 
 time the property remained stored; if its stock of ice is in- 
 sufficient for that purpose, it should either replenish it or give 
 timely notice to the customer to remove the property; if it 
 fails to do either, in the absence of circmnstances charging the 
 customer with knowledge of the situation, the Company is 
 liable for the damages resulting from the failure to maintain 
 the requisite temperature." Sutherland v. Albany Cold 
 Storage Co., 171 N. Y. 269; Wilson v. linde Co., 47 App. Div. 
 327. 
 
 Q. A dehvered seven bales of muskrat skins to the N. Y. 
 Cold Storage Company in good condition, and the company 
 undertook to preserve such skins in their then condition, for 
 which it was to receive the usual compensation. The com- 
 pany gave a warehouse receipt which provided: "That perish- 
 able goods are received only at the owner's risk," Through 
 
BAILMENTS 35 
 
 the negligence of the Storage Company, the skins were badly 
 damaged. A brings action for the damages sustained. Can 
 he recover? 
 
 A. Yes. "It is urged that the warehouse receipt which 
 provided that 'perishable goods are received only at the owner's 
 risk/ limits and measures the defendant's habiUty; but we 
 are clearly of opinion that the law is estabhshed in this state 
 that such a provision does not exempt the defendant from 
 liabiUty for its own negUgence . . . the cases are uniform in 
 holding that, in the absence of express and unequivocal language 
 extending to negligence, such a clause does not exempt a bailee 
 for hire from discharging the duty he holds to use reasonable 
 care." Woodward, J., in Herzig v. N. Y. Cold Storage Co., 
 115 App. Div. 40, aff'd in 190 N. Y. 511. 
 
 Q. A delivered to B, a tailor, 1,000 yards of cloth which B 
 agreed to make into trousers at $1.00 per pair. He makes and 
 delivers 250 pairs. He afterwards makes but refuses to de- 
 hver the rest of the trousers until he is paid for all. A tenders 
 at the rate of $1.00 per pair for the last lot, and sues for the 
 return of the cloth. Give the nature of the transaction. Who 
 is entitled to the cloth? 
 
 A. The nature of this transaction is a bailment, and title 
 to the goods, though in a manufactured form, remains in the 
 bailor A; but B has the right to a lien for his services on the 
 goods in his possession, even though he delivered a part of 
 them to A. Morgan v. Congdon, 4 N. Y. 552. 
 
 Q. A makes a contract with B whereby he (A) agreed to 
 bind 1,000 books at the rate of fifty cents a book, and deliver 
 them in lots of a third at a time. The first two lots had been 
 deUvered, and A had not demanded or received any pay. 
 A then refuses to deliver any more books until the whole 
 amount is paid. What are the rights of the parties? 
 
 A. "Where deliveries of property are made, under a single 
 contract by the owner to another, at different times, for the 
 
36 BAILMENTS 
 
 purpose of having work done thereon which adds to its value, 
 a lien in favor of the person doing the work, attaches to all 
 the property in the same manner as if it had been deUvered 
 at the same time; and if a part is voluntarily returned without 
 payment for the work, the workman retains his lien for all 
 the work done on the property which remains in his possession. 
 The only effect of the return is a release of so much of the se- 
 curities. The transaction is merely a bailment, and the bailee 
 can retain the rest of the property till the whole debt is paid." 
 Morgan v. Congdon, supra; Scott v. Delehanty, 65 N. Y. 128. 
 
 Q. A takes some gold to B, a jeweler, who agrees to make 
 it into a chain for $100, the money to be paid thirty days after 
 the completion and delivery of the chain. When the chain 
 is completed, A demands it of B, but the latter refuses to give 
 it up until he gets his pay, claiming a lien. Rights of A and B? 
 State your reasons. 
 
 A. A has an absolute right to the chain. The agreement to 
 deliver in this case before receiving payment, is inconsistent 
 with the retention of the lien, and therefore B is estopped from 
 setting it up. "Where a particular time of payment is fixed 
 by the contract, which is or may be subsequent to the time 
 when the owner is entitled to a return of the property, there 
 can be no lien." Wiles Laundering Co. v. Hahlo, 105 N. Y. 234. 
 
 Q. A delivered to B, a bookbinder, 1,000 books to be bound 
 at $1 each. Five hundred of the books were bound and de- 
 livered by the binder to A without exacting payment. The 
 remaining 500 books were bound by B, and then pledged by 
 him to C, as security for a loan of $500. C refused to deliver 
 the books to A upon demand. A consults you. What is the 
 nature of the transaction, and what are the respective rights of 
 A, B, and C under the circmnstances? 
 
 A. This is a bailment, and title to the books is in A, subject, 
 however, to B's lien for the work done upon them. B having 
 a hen could pledge the same, and C acquired all B's rights to 
 retain the books until the entire amount due upon them was 
 
BAILMENTS 37 
 
 paid by A. Wiles Laundering Co. v. Hahlo, supra, a leading 
 case. 
 
 Q. A brings a wagon to B for repairs. It is worth $25 when 
 taken. B repairs the wagon, increasing the value thereof to 
 $100. C has a judgment against B, and offers A |25 for his 
 interest in the wagon. A refuses to accept it. C then levies 
 on the wagon, and sells it under the judgment against B. A 
 brings action against C. Can he recover, and what is the 
 extent of the recovery? 
 
 A. Yes. The owner of property, who delivers it to another 
 for the purpose of having work done thereon, or other work 
 which adds to its value, does not thereby lose his title to the 
 property; therefore he may recover as damages from one who 
 has converted the property the value thereof at the time of 
 the conversion. Anything affixed to one's property becomes 
 a part of that property, and title to it passes to the owner; 
 therefore, A can recover the value of the property when taken. 
 Pierce v. Schenck, 3 Hill, 28. 
 
 Q. A buys an overcoat for $50, and takes it to a furrier, 
 who agrees to furnish furs and line it for $50. After the furrier 
 has completed the job and the coat is ready for A, C, a creditor 
 of the furrier, levies on the coat. A sues C in conversion alleg- 
 ing $100 damages. To whom does the coat belong? If judg- 
 ment for A, for how much? 
 
 A. The coat belongs to A and judgment should be for $100. 
 The title to the completed article vests by accession in the 
 party who furnished the original article; in such case the ma- 
 terials added became the property of A. "Where materials 
 are furnished by one, and labor is to be performed upon it by 
 another, and the identical article produced is to be returned 
 to the employer who paid a compensation for the labor, the 
 contract is one of bailment, though the manufacturer or work- 
 man may have furnished some accessorial material." Merrill 
 v. Johnson, 7 Johns. 473. 
 
N 
 
 38 BAILMENTS 
 
 Q. A delivered to B for safe-keeping certain bank stocks 
 with instructions that they should not be delivered to anyone, 
 except upon written order of A. A's wife called for them and 
 B delivered the bank stocks to her, although she did not have 
 a written order for them. A then demanded the bank stocks 
 from B, who refused to deliver them, justifying his refusal 
 upon the ground that he had delivered them to A's wife. A 
 brings action against B. Judgment for whom and why? 
 
 A. Judgment for A. "Where a bailor instructs bailee not to 
 deliver his property to any person except upon his written 
 order, a delivery to the wife of the bailor without such order, 
 is not equivalent to a delivery to the husband, and does not 
 discharge the bailee from liabihty." Kowing v. Manly, 49 
 N. Y. 192. 
 
 Q. A hired an automobile from B for one month for a given 
 price. At the end of the month, A failed to return the auto- 
 mobile to B, although requested to do so, and three days there- 
 after it was destroyed by fire without any fault of A. B sues 
 A for the value of the automobile. Judgment for whom and 
 why? 
 
 A. Judgment for B; it was A's duty to return the automobile 
 at the expiration of the time for which he had hired it. "It 
 is obvious that the bailee whatever the character of the bail- 
 ment may be, when its purpose has been fully satisfied and 
 performed, is bound upon request to redeliver the thing bailed 
 to its lawful owner." Ouderkirk v. Bank, 119 N, Y. 267. 
 
 Q. A delivered goods to B, a warehouseman. C, the rightful 
 owner of said goods, brings an action against B who is com- 
 pelled to pay $500 damages, their value. A demands the goods 
 from B, who refuses to deliver them. A sues B. Can he 
 recover? 
 
 A. No. The rule that a bailee cannot deny the title of his 
 bailor, does not apply to a case where the bailee has been com- 
 
BAILMENTS 39 
 
 pelled by legal process to pay for the property to one having 
 the true title. Cook v. Holt, 48 N. Y. 275. 
 
 (Note.) "A factor is bound to assume that his principal is the owner of 
 goods consigned to him for sale and his allegiance is alone due to his principal. 
 He cannot justify a refusal to pay over the proceeds of such sale, upon the 
 ground that the same have been seized by virtue of an attachment against a 
 third person or that they have been paid over in pursuance of an order in 
 proceedings supplementary to execution, in an action against such third 
 person of which the principal had no notice." Barnard v. Kobbe, 54 N. Y. 
 516. 
 
CHAPTER III 
 
 Bills and Notes 
 Q. (No date.) 
 
 Three months after date, I promise to pay to the order of X, 
 $500 in wheat. (Signed) A. B. Is this a valid promissory note? 
 
 A. This is not a vaHd promissory note, as it is not payable 
 in money. Section 20 of the N. Y. Neg. Inst. Law (Consoli- 
 dated Laws, chap. 38) provides as follows: "An instrument 
 to be negotiable must conform to the following requirements: 
 
 1. It must be in writing and signed by the maker or drawer. 
 
 2. Must contain an unconditional promise or order to pay a 
 sum certain in money. 3. Must be payable on demand, or 
 at a fixed or determinable future time. 4. Must be payable 
 to order or to bearer; and 5. Where the instrument is addressed 
 to a drawee, he must be named or otherwise indicated therein 
 with reasonable certainty." If this instrument were negotiable, 
 it would be payable thirty days from its delivery, as where an 
 instrument is not dated, it will be considered to be dated as 
 of the time when it was issued. Section 36, part 3, Neg. Inst. 
 Law (ConsoUdated Laws, chap. 38). The absence of a date 
 from an instrument does not affect its negotiability. Section 
 25, part 1, Neg. Inst. Law (Consolidated Laws, chap. 38). 
 Brown v. Bank, 6 Hill, 443. The note may be written in 
 pencil. 
 
 Q. June 2, 1905. 
 
 I promise to pay to the order of W $55 at my store, or in 
 goods on demand. (Signed) T. P. Is this a valid promissory 
 note? 
 
 A. Yes. This instrument has all the essential qualities of a 
 negotiable promissory note. It is for the unconditional pay- 
 ment of a certain sum of money at a specified time to the 
 40 
 
BILLS AND NOTES 41 
 
 payee's order. It is not optional with the maker to pay in 
 money or goods, and thus to fulfill his promise in either of two 
 specified ways. In such case, the promise would have been in 
 the alternative. If the holder chooses, he may surrender the 
 note and receive goods, but that rests entirely with himself, 
 and no choice is left with the debtor. Hostatter v. Wilson, 
 36 Barb. 307; Hodges v. Shuler, 22 N. Y. 114. The statute 
 has left this rule unchanged. Section 24 of Neg. Inst. Law 
 (Consolidated Laws, chap. 38) provides as follows: "An in- 
 strument which contains an order or promise to do any act 
 in addition to the payment of money is not negotiable. But 
 the negotiable character of an instrument is not affected by a 
 provision which: 4. Gives the holder an election to require 
 something to be done in lieu of payment of money." 
 
 Q. May 1, 1915. 
 
 Pay A or order $1,000 out of the rents which you will collect 
 from my building 265 Broadway. To B. (Signed) C. Is this 
 a good bill of exchange? 
 
 A, Clearly not, as it is payable out of an uncertain fund. 
 The test is, whether the drawee is confined to the particular 
 fund, or whether though a particular fund is mentioned, the 
 drawee may charge the bill to the general account of the drawer 
 if the designated fund turns out to be insufficient. It must 
 appear that the bill is drawn on the general credit of the drawer; 
 though it is no objection when so drawn that a particular fund 
 is specified from which the drawer may reimburse himself. 
 Hunger v. Shannon, 61 N. Y. 251; Brill v. Tuttle, 81 N. Y. 
 457; Schmittler v. Simon, 101 N. Y. 554. The statute has not 
 changed the law in this respect. Section 22 of Neg. Inst. Law 
 says: "An unqualified order or promise to pay is unconditional 
 within the meaning of this chapter, though coupled with: 
 1. An indication of a particular fund out of which reimburse- 
 ment is to be made, or a particular account to be debited with 
 the amount; or 2. A statement of the transaction which gives 
 rise to the instrument. But an order or promise to pay out 
 of a particular fund is not unconditional." 
 
42 BILLS AND NOTES 
 
 Q. A indorsed for the accommodation of B the latter's prom- 
 issory note for $1,000, payable sixty days after date. The note 
 was complete in form, except as to date and place of payment. 
 A told B to date the note May 1, at the First National Bank, 
 Boston. B, in fraud of his instructions, dated the note April 1, 
 and made it payable at the Chemical Bank, New York City, 
 and then negotiated it in due course to C, who now sues A and 
 B thereon. The above facts appearing, judgment for whom 
 and why? 
 
 A. Judgment for C. "It is well-settled law, that if one 
 affixes his signature to an incomplete promissory note and 
 intrusts it to the custody of another for the purpose of having 
 the blanks filled up, and thus becoming a party to a negotiable 
 instrument, he thereby confers the right, that such instrument 
 carries on its face an impUed authority to fill up the blanks 
 and complete the contract at pleasure as to name, terms, 
 amount, date and place of payment, so far as consistent with 
 its words. As to all purchasers for value without notice, the 
 person to whom a blank note is intrusted must be deemed the 
 agent of the signer, and the act of perfecting the instrument 
 must be deemed the act of the principal. An oral agreement 
 between such principal and agent, limiting the manner in which 
 the note shall be perfected, cannot affect the Tights of an in- 
 dorsee who takes the note before maturity for value in igno- 
 rance of such an agreement." Van Duzer v. Howe> 21 N. Y. 
 531; RedUch v. Doll, 54 N. Y. 234; Weyerhouser v. Dunn, 
 100 N. Y. 150. Section 33 of Neg. Inst. Law is a substantial 
 re-enactment of this rule and is as follows: "Where the instru- 
 ment is wanting in any material particular, the person in 
 possession thereof has a prima facie authority to complete it 
 by filling up the blanks therein. And a signature on a blank 
 paper dehvered by the person making the signature in order 
 that the paper may be converted into a negotiable instrument 
 operates as a prima facie authority to fill it up as such for any 
 amount. In order, however, that any such instnmient, when 
 completed, may be enforced against any person who became a 
 party thereto prior to its completion, it must be filled up strictly 
 
BILLS AND NOTES 43 
 
 in accorda^nce with the authority given and within a reasonable 
 time. But if any such instrument, after completion, is nego- 
 tiated to a holder in due course, it is valid and effectual for 
 all purposes in his hands, and he may enforce it as if it had 
 been filled up strictly in accordance with the authority given 
 and within a reasonable time." 
 
 Q. A gives a note to B, of which the following is a copy. 
 
 Buffalo, N. Y., Jan. 15, 1915. 
 Sixty days after death, I promise to pay to B $5,000 for 
 value received. (Signed) A. B is the son of A, and after A's 
 death sues the personal representatives of A for the amount 
 of the note. Can he recover? 
 
 A. Yes. A bill or note payable so many days after the death 
 of a party is certain as to time, because the time is sure to 
 arrive. Camright v. Gray, 127 N. Y. 92; Hegeman v. Moon, 
 131 N. Y. 462. The Neg. Inst. Law, sec. 23, is to the same ef- 
 fect and is as foUows: "An instrument is payable at a de- 
 terminable future time, within the meaning of this chapter, 
 which is expressed to be payable: 1. At a fixed period after 
 date or sight; or 2. On or before a fixed or determinable future 
 time specified therein; or 3. On or at a fixed period after the 
 occurrence of a specified event, which is certain to happen, 
 though the time of happening be uncertain. An instrument 
 payable upon a contingency is not negotiable, and the happen- 
 ing of the event does not cure the defect." It will be noticed 
 in this case that the instrument is not negotiable, as it does 
 not contain words of negotiability. In Carnright v. Gray, 
 supra, which was decided under the revised statutes, it was 
 held that such an instrument carries with it a presumption 
 of consideration. In the case of Deyo v. Thompson, 53 App. 
 Div. 9, it was held that the Neg. Inst. Law, sec. 50, has re- 
 pealed the provision of the Rev. Stat., and that the presump- 
 tion of consideration extends only to negotiable instruments; 
 that non-negotiable instruments do not import a consideration, 
 and the burden is upon the party suing upon such a note, to 
 prove the existence of consideration therefor by extrinsic evi- 
 
44 BILLS AND NOTES 
 
 dence. And so also Kinsella v. Lockwood, 79 Misc. 6?19; 
 Kerr v. Smith, 156 App. Div. 807. 
 
 Q. A gave to B a note of which the following is a copy. 
 
 New York, May 1, 1914. 
 
 I promise to pay to the order of B, $500 on his twenty-first 
 birthday. Value received. (Signed) A. B, for value received, 
 indorsed the note to C. On June 10, 1915, when B attained 
 the age of twenty-one years, C then demanded payment of 
 the note from A, and on A's refusal to pay the same brought 
 suit. What defense, if any, has A? 
 
 A. This is not a vaUd promissory note as the payment was 
 conditioned upon the attainment of B's majority, an event 
 which might never have happened. It was made dependent 
 upon a contingency and therefore lacked one of the essential 
 elements of a promissory note, which is that the money shall 
 be payable at a time certain. The agreement to pay must 
 not depend on any contingency but be absolute and at all 
 events. Duffield v. Johnston, 96 N. Y. 369; Camright v. 
 Gray, 127 N. Y. 92; Rice v. Rice, 43 App. Div. 458. 
 
 Q. A's clerk made out a check payable to a fictitious person. 
 A signed the check, not knowing that the payee was a fictitious 
 person. The clerk then indorsed the name of the fictitious 
 person upon the check, and presented it to the bank for pay- 
 ment. The bank paid the amount of same and charged it to 
 A's account. A sues the bank. Can he recover? 
 
 A. Yes. The rule that paper made payable to the order 
 of a fictitious person is treated as payable to bearer, applies 
 only to instnmients put in circulation by the maker with 
 knowledge that the payee does not represent the name of a 
 real person. "The maker's intention is the controlling con- 
 sideration which determines the character of such paper. It 
 cannot be treated as payable to bearer unless the maker knows 
 the payee to be fictitious, and actually intends to make the 
 paper payable to a fictitious person." Shipman v. Bank, 126 
 N. Y. 318; Philips v. Bank, 140 N. Y. 557; Seaboard Nat. 
 
BILLS AND NOTES 45 
 
 Bank v. Bank of America, 193 N. Y, 26. Section 28 of Neg. 
 Inst. Law reaffirms this rule and is as follows: "The instru- 
 ment is payable to bearer: 1. When it is expressed to be so 
 payable; or 2. When it is payable to a person named therein 
 or bearer; or 3. When it is payable to the order of a fictitious 
 or nonexisting person and such fact was known to the person 
 making it so payable; or 4. When the name of the payee does 
 not purport to be the name of any person; or 5. When the only 
 or last indorsement is an indorsement in blank." 
 
 Q. A drew a bill of exchange leaving the name of the drawer 
 blank; addressed it to himself and then wrote an acceptance 
 across it. He placed it in his desk, and then left the office. 
 While he was absent, B came in and stole the paper. B then 
 filled it up with the drawer's name, and transferred it to C, 
 a bona fide holder, C sues A upon the instrument. Can he 
 recover? 
 
 A. No. "The rule that a bona fide holder of an incomplete 
 instrument, negotiable, but for some lack capable of being 
 supplied, has an implied authority to supply the omission and 
 to hold the maker thereon, only appUes where the latter has 
 by his own act or by the act of another, authorized, confided 
 in, or invested with apparent authority by him, put the in- 
 strument into circulation as negotiable paper. Where an 
 instrument is stolen, a bona fide holder, in such a case, acquires 
 and can convey no title." Ledwich v. McKim, 53 N. Y. 307; 
 Davis Co. V. Best, 105 N. Y. 59. Section 34 of Neg. Inst. Law 
 is in accord with this rule. It is as follows: "Where an in- 
 complete instrument has not been deUvered, it will not, if 
 completed and negotiated, without authority, be a valid con- 
 tract in the hands of any holder, as against any person whose 
 signature was placed thereon before delivery." 
 
 Q. A gives B, his agent, authority to issue negotiable paper. 
 B issues a note signing his own name as maker. Subsequently 
 the instrument comes into the hands of C, who takes it for 
 value before maturity and without notice. C sues A on the 
 note. Is A liable? 
 
46 BILLS AND NbTES 
 
 A. Clearly not. It is a well-settled rule in the law of com- 
 mercial paper, that persons taking negotiable instruments are 
 presumed to take them on the credit of the parties whose 
 names appear upon them, and a person not a party to the 
 instrument cannot be charged with liability thereon, upon 
 proof that the ostensible party signed as his agent. Pentz v. 
 Stanton, 10 Wend. 271; Briggs v. Partridge, 64 N. Y. 363; 
 Bank v. Gallaudet, 120 N. Y. 298. Section 37 of Neg. Inst. 
 Law, conforms to this rule, and is as follows: "No person is 
 liable on the instrument whose signature does not appear 
 thereon, except as herein otherwise expressly provided. But 
 one who signs in a trade or assumed name will be liable to the 
 same extent as if he had signed in his own name." 
 
 Q. Buffalo, N. Y., May 1, 1915. 
 
 Three months after date for value received, we promise to 
 pay to the order of C, $500 with interest at the First National 
 Bank. 
 
 (Signed) A, Pres, 
 B, Treas. 
 
 A and B were president and treasurer respectively of the 
 X Ice Company, duly authorized to issue notes for the cor- 
 poration, and it was business paper. The bank had no notice 
 of the transaction, except what was on the face of the paper. 
 The bank had previously discounted the note, and now sues 
 A and B individually. Are they Uable? Give your reasons. 
 
 A. Yes. This is not the note of the corporation, but merely 
 the note of the officers A and B. The words "president and 
 treasurer" are purely descriptive. "Where a negotiable prom- 
 issory note has been given for the payment of a debt con- 
 tracted by a corporation, and the language of the promise 
 does not disclose the corporate obligation, and the signatures 
 to the paper are in the names of individuals, a holder, taking 
 bona fide, and without notice of the circumstances of its making 
 is entitled to hold the note as the personal undertaking of its 
 signers, notwithstanding they affix to their names the title 
 of an office. Such an affix will be regarded as descriptive of the 
 
BILLS AND NOTES 47 
 
 persons and not of the character of the liability. Unless the 
 promise purports to be by the corporation, it is that of the 
 persons who subscribe to it; and the fact of adding to their 
 names an abbreviation of some official title has no legal signifi- 
 cation as qualifying their obligation, and imposes no obliga- 
 tion upon the corporation whose officers they may be. This 
 must be regarded as the long and well-settled rule." Gray, J., 
 in Casco Nat. Bank v. Clark, 139 N. Y. 307. See also Bank 
 V. Wallis, 150 N. Y. 456; Bank v. Love, 13 App. Div. 551. 
 
 (Note.) Section 39 of Neg. Inst. Law provides as follows: "Where the 
 instrument contains or a person adds to his signature words indicating that 
 he signs for or on behalf of a principal, or in a representative capacity, he is 
 not Uable on the instrument if he was duly authorized; but the mere addition 
 of words describing him as an agent, or as filling a representative character, 
 without disclosing his principal does not exempt him from personal lia- 
 bility." 
 
 Q. A, a creditor, has dealings with B, as agent of C, which 
 A knows. B buys goods as agent which A is aware of. B gives 
 A a note for the price, signed "B, agent for C." Whose note 
 is it and against whom can it be enforced? 
 
 A. In this case, the principal would be liable to A. Where 
 the names of both principal and agent appear on a negotiable 
 instrument, in such a manner as to render it doubtful to whom 
 credit was given, parol evidence is admissible between the 
 original parties to the instrument, and others affected with 
 notice, to remove the doubt. "Where individuals subscribe 
 their names to a note, prima facie they are personally liable, 
 although they add a description of the character in which 
 the note was given; but such presiunption of liability may be 
 rebutted by proof that the note was in fact given by the makers 
 as agents of a principal, or officers of a corporation for a debt 
 of the principal or corporation due to the payee, and that 
 they were duly authorized to make such note as agents or 
 officers." Brockway v. Allen, 17 Wend. 40; Baird v. Baird, 
 145 N. Y. 659; Higgins v. Ridgeway, 153 N. Y. 130. And the 
 statute (sec. 39 of Neg. Inst. Law, supra) has not changed 
 this rule, as in the case of Megowan v. Peterson, 173 N. Y. 1, 
 
48 BILLS AND NOTES 
 
 where the court says: "We do not understand that the statute 
 to which we have alluded (sec. 39) was designed to change 
 the common-law rule in this regard, which is to the effect that, 
 as between the original parties and those having notice of the 
 facts reUed upon as constituting a defense, the consideration 
 and the conditions under which the note was delivered may be 
 shown." 
 
 Q. A is the executor of an estate, and gives the ordinary 
 promissory note for goods purchased for the estate, and signs 
 "A, executor." The note is negotiated in due course to C. 
 C sues A personally on the note. Is A Uable? 
 
 A. Yes. The addition of an official character to the signa- 
 tures of executors and administrators, in signing instruments 
 and executing contracts has no significance, and operates 
 merely to identify the person and not to limit or qualify the 
 fiability. Pinney v. Admrs., 8 Wend. 500; Pumpelly v. Phelps, 
 40 N. Y. 59; Schmittler v. Simon, 114 N. Y. 177. 
 
 Q. A delivered to B a certain paper and asked him (B) to 
 sign same, telling him that it was an order for some goods 
 that had been ordered. The paper was in fact a negotiable 
 promissory note. B signed the paper without examining it. It 
 was subsequently negotiated, and came into the hands of C, a 
 bona fide holder for value and without notice. When the 
 note became due, C presented the same to B, who refused to 
 pay. C brings action against B. Judgment for whom and why? 
 
 A. Judgment for C, as B was negligent in signing a paper 
 which he had an opportunity to read, and C, being a holder 
 in due course, is entitled to recover. Anyone having the op- 
 portunity and the power to ascertain, with certainty, the exact 
 obhgation he is assuming, yet chooses to rely upon the state- 
 ments of the person with whom he is dealing, and executes a 
 negotiable instrument without reading or examination, he is 
 bound to a holder in due course. The theory is that he is 
 guilty of laches in signing the instrument without reading it. 
 He thereby places in circulation what appears to be, on its 
 
BILLS AND NOTES 49 
 
 face, a valid promise to pay. The purchaser of this promise 
 in the open market, for value, is entitled to rely upon the facts 
 which are shown upon the face of the instrument. Chap- 
 man V. Rose, 56 N. Y. 137; Dutchess Ins. Co. v. Hatchfield, 
 73 N. Y. 229; Harden v. Dorthy, 160 N. Y. 67. 
 
 Q. A forges B's name as maker to a promissory note. It 
 comes into the hands of C, a holder in due course. B refuses 
 to pay the same, and C brings action against him. Can he 
 recover? 
 
 A. Clearly not. As the note had no valid inception, it 
 could not be made valid by subsequent negotiation. The 
 rule that a forged instrument cannot be validated has long 
 been well settled, and is re-embodied in sec. 42 of Neg. Inst. 
 Law, which is as follows: "Where a signature is forged or made 
 without authority of the person whose signature it purports 
 to be, it is wholly inoperative, and no right to retain the in- 
 strument, or to give a discharge therefor, or to enforce pay- 
 ment thereof against any party thereto, can be acquired 
 through or under such signature, unless the party, against 
 whom it is sought to enforce such right, is precluded from 
 setting up the forgery or want of authority." Salen v. Bank, 
 110 App. Div. 636; Trust Co. v. Suden, 120 App. Div. 518. 
 
 Q. A gives his note to B for a debt which he owes B. Upon'T, 
 suit on the note by B, A defends on the ground of no con- f 
 sideration. Judgment for whom and why? 
 
 A. Judgment for B. While in a simple contract, this would 
 not be held to be a sufficient consideration, yet under the 
 Neg. Inst. Law, sec. 51, it would be a good consideration. 
 This section provides as follows: "Value is any consideration 
 sufficient to support a simple contract. An antecedent or 
 pre-existing debt constitutes value; and is deemed such whether 
 the instrument is payable on demand or at a future time." 
 Button V. Rathbone Co., 118 N. Y. 666; Mindlin v. Appel- 
 baum, 62 Misc. 300. 
 4 
 
50 BILLS AND NOTES 
 
 (Note.) "Absence or failure of consideration is matter of defense as against 
 any person not a holder in due course; and partial failure of consideration 
 is a defense pro tanto whether the failure is an ascertained and liquidated 
 amount or otherwise." Sec. 54 of Neg. Inst. Law. 
 
 Q. X and Y for their mutual accommodation made and ex- 
 changed their promissory notes for equal amounts. X dis- 
 counted Y's note at the Z Bank, but the same was not paid 
 at maturity. Y, however, sues X on the latter's note, and X 
 sets up failure of consideration as a defense. Judgment for 
 whom and why? 
 
 A. Judgment for Y. "Upon an exchange of promissory 
 notes, each note is a vaUd consideration for the other and is 
 fully available in the hands of its holder. The transaction is 
 in no sense executory, but is fully consummated, and no agree- 
 ment is to be implied save that expressed in the papers. The 
 fact, therefore, that one of the notes is not paid at maturity, 
 does not sustain a defense of failure of consideration in an 
 action upon the other." Rice v. Grange, 131 N. Y. 149. 
 
 Q. A makes a note for the accommodation of B. B transfers 
 it for value to C. C, at the time of taking the note, knew that 
 A was only an accommodation party. C sues A on the instru- 
 ment. Can he recover? 
 
 A. C can recover. It has been held before the statute 
 (Grocers' Bank v. Penfield, 69 N. Y. 502) that where a promis- 
 sory note is made for the accommodation of the payee, without 
 restrictions as to its use, an indorsee taking it in good faith 
 for value can recover thereon against the maker. Section 55 of 
 Neg. Inst. Law is very explicit upon this point. It is as fol- 
 lows: "An accommodation party is one who has signed the in- 
 stnunent as maker, drawer, acceptor or indorser, without 
 receiving value therefor, and for the purpose of lending his 
 name to some other person. Such a person is liable on the 
 instrument to a holder for value, notwithstanding such holder 
 at the time of taking the instrument knew him to be only an 
 accommodation party." Bank v. Toblitz, 81 App. Div. 593, 
 aff'd in 178 N. Y. 596. 
 
BILLS AND NOTES 61 
 
 Q. A purchased some goods of B, and gave his proijias^ory 
 note in payment therefor. B refused to take the note of A 
 unless he had a good indorsement thereon. A went to the X 
 Manufacturing Co., Inc., who to accommodate A indorsed said 
 note. B had the note discounted at the Y Bank. Upon ma- 
 turity of the said note, the same not being paid, the bank seeks 
 to hold the X Manufacturing Company for the amount of 
 the note. Can they do so? 
 
 A. No. A corporation engaged in manufacturing has no 
 power to indorse notes for the accommodation of another, and 
 cannot bind itself thereby. As the bank discounted the note 
 before maturity, it cannot hold the manufacturing company 
 liable. Corporations as a general rule cannot bind themselves 
 as accommodation parties. National and state banks, railroad 
 companies and other corporations have been held unable to 
 bind their shareholder's property by accommodation indorse- 
 ments. Bank v. Bank, 16 N. Y. 125; Nat. Park Bank v. G. 
 A. M. W. & S. Co., 116 N. Y. 281; Bank v. Snyder M'fg Co., 
 117 App. Div. 371, 
 
 Q. A, the cashier of the X Bank, sent to the Y Bank to be 
 discounted, a bill of exchange payable to the order of "A, 
 cashier," indorsed by him with the same addition to his signa- 
 ture. The Y Bank sues the X Bank as indorser on the bill. 
 Judgment for whom and why? 
 
 A. Judgment for the Y Bank. It was uniformly held before 
 the statute, that circumstances such as these, imported that 
 the indorsement was that of the bank in the regular course 
 of business, and not that of the cashier individually. Bank of 
 Genesee v, Patchin Bank, 19 N, Y. 312; Bank v. Bank, 29 
 N, Y. 619; Bank v. Hall, 44 N, Y, 395. Section 72 of Neg. 
 Inst. Law has preserved this rule. It is as follows: "Where 
 an instrument is drawn or indorsed to a person as "cashier" 
 or other fiscal officer of a bank or corporation, it is deemed 
 prima facie to be payable to the bank or corporation of which 
 he is such officer; and may be negotiated by either the indorse- 
 
52 BILLS AND NOTES 
 
 mentiof the bank or corporation, or the indorsement of the 
 officer." 
 
 Q. A, holder of a note on which there are six indorsements, 
 strikes out the second and third. Thereafter he sues X and Y 
 who are the fourth and fifth indorsers respectively on the note, 
 the same having been dishonored. Can he recover? State 
 the rule. 
 
 A. No. Section 78 of Neg. Inst. Law answers this question. 
 It is as follows: "The holder may at any time strike out any 
 indorsement which is not necessary to his title. The indorser 
 whose indorsement is struck out, and all indorsers subsequent 
 to him, are thereby relieved from Uability on the instrument." 
 
 Q. A gives to B his promissory note for $500, payable in 
 thirty days to B's order. The note is procured through fraud. 
 B transfers the note for value without indorsement to C. 
 Thereafter C gets notice of the fraud and gets B to indorse 
 the note. C then sues A on the note. Can he recover? Give 
 reasons. 
 
 A. C cannot recover. A subsequent indorsement made 
 after notice of the maker's defense to the instrument, although 
 the paper was transferred for value without notice of the de- 
 fense, will not relate back to the time of the transfer so as to 
 cut off the equities of the maker against the payee. Goshen 
 Nat. Bank v. Bingham, 118 N. Y. 349. This rule continues in 
 effect under sec. 79 of Neg. Inst. Law, which reads: "Where 
 the holder of an instrument payable to his order transfers it 
 for value without indorsing it, the transfer vests in the trans- 
 feree such title as the transferrer had therein, and the transferee 
 acquires, in addition, the right to have the indorsement of the 
 transferrer. But for the purpose of determining whether the 
 transferee is a holder in due course, the negotiation takes effect 
 as of the time when the indorsement is actually made." See 
 Meurer v. Phenix Nat. Bank, 42 Misc. 341; Rivenbaugh v. 
 First Nat. Bank, 103 App. Div. 64. 
 
BILLS AND NOTES 53 
 
 Q. A makes a note to B or order. It is duly indorsed by B, 
 C, D and E, the last indorsing it over to B, the original holder. 
 Default and due notice, etc. B sues the maker and all in- 
 dorsers. Advise all parties, 
 
 A. B cannot recover aganst C, D and E. B's rights against 
 them as last indorsers are merged in his Jiability as first in- 
 dorser to them. This rule prevents circuity of action, and 
 is stated in sec. 80 of Neg. Inst. Law as follows: "Where an 
 instrument is negotiated back to a prior party, such party may, 
 subject to the provisions of this chapter, reissue and further 
 negotiate the same. But he is not entitled to enforce pajrment 
 thereof against any intervening party to whom he was per- 
 sonally liable." 
 
 Q. A gives a negotiable note to B for $35. Subsequently 
 a demand arises in favor of A against B for $30. B transfers 
 the note before maturity for value and without notice to C. 
 C sues A on the note. A sets up a counterclaim against C 
 which he has against B. C demurs. Judgment for whom and 
 why? 
 
 A. The demurrer must be sustained. C is a holder in due 
 course, and the counterclaim which would have been avail- 
 able against B, cannot be set up against him. This old rule 
 is now contained in sec. 96 of the Neg. Inst. Law. It is as 
 follows: "A holder in due course holds the instrument free 
 from any defect of title of prior parties and free from defenses 
 available to prior parties among themselves, and may enforce 
 payment of the instrument for the full amount thereof against 
 all parties liable thereon." See Hargen v. Wilson, 63 Barb. 
 237; Huff v. Wagner, 63 Barb. 215; Todd v. Shelboume, 8 
 Hun, 512; Knox v. Eden Musee Co., 148 N. Y. 441. 
 
 Q. C was indebted to B for coal, and indorsed to him cer- 
 tain promissory notes payable to C's order before maturity, 
 made by D in payment of tobacco sold by C to D. B entered 
 C's account with the full face value of the notes, including 
 the accrued interest thereon. The notes were not paid at 
 
64 BILLS AND NOTES 
 
 matuffty. B sues D, the maker. D answers and admits the 
 making of the note, transfer and nonpayment thereof, and 
 sets up affirmatively a breach of the contract of sale of the 
 tobacco by C, for which the notes were given, and claims dam- 
 ages therefor to the amount of the notes as a set-off. B demurs 
 to the answer. Judgment for whom and why? 
 
 A. Judgment for B. B is a holder in due course, and there- 
 fore the defenses are not available against him under sec. 96 
 of Neg. Inst. Law. That B is a holder in due course will be 
 seen from sec. 91, which is as follows: "A holder in due course 
 is a holder who has taken the instrument under the following 
 conditions: 1. That it is complete and regular upon its face. 
 2. That he became the holder of it before it was overdue, and 
 without notice that it had been previously dishonored, if such 
 was the fact. 3. That he took it in good faith and for value. 
 4. That at the time it was negotiated to him he had no notice 
 of any infirmity in the instrument or defect in the title of the 
 person negotiating it." 
 
 Q. A made and delivered his promissory note to B for value 
 received. B indorsed the same in blank and left it in his desk. 
 C, his clerk, stole the note and then negotiated it before ma- 
 turity and for value to D who had no knowledge of the theft. 
 At maturity of the note it was duly presented for payment 
 and payment thereof refused, of which B received due notice. 
 Shortly thereafter D sold the note to E for value without 
 notice. The maker (A) having become insolvent, E sues B 
 on the note. Judgment for whom and why? 
 
 A. Judgment for E. D having been a holder in due course, 
 and E having been a bona fide purchaser from him succeeded 
 to all his rights. D as a holder in due course could recover 
 from B, due notice of the nonpayment by the maker having 
 been given to him (B) ; therefore E standing in the position 
 of an assignee, acquired all D's rights and remedies. "A pur- 
 chaser for value of negotiable paper after maturity is not a 
 bona fide purchaser to the extent of being protected in his 
 
BILLS AND NOTES 55 
 
 purchase against the rightful owner, from whom it has been 
 stolen, unless he has succeeded to the rights of a bona fide 
 holder before maturity. The burden is upon the purchaser 
 in such a case to show that he is, or has succeeded to the rights 
 of, a bona fide purchaser before maturity; there is no presump- 
 tion that the thief negotiated the paper before it became over- 
 due." Bank v. Kidder, 106 N. Y. 221. See also Bank v. Bank, 
 42 App. Div. 151. Section 98 of Neg. Inst. Law continues 
 this rule and is as follows: "Every holder is deemed prima 
 facie to be a holder in due course; but when it is shown that 
 the title of any person who has negotiated the instrument 
 was defective, the burden is upon the holder to prove that he 
 or some person under whom he claims acquired the title as a 
 holder in due course. But the last mentioned rule does not 
 apply in favor of a party who became bound on the instrument 
 prior to the acquisition of such defective title." See Engle v. 
 Hyman, 54 Misc. 251. 
 
 Q. A makes his promissory note payable to the order of B. 
 B transfers it for value before maturity to C, who takes it 
 without notice of the fact that B had procured the note through 
 fraud. C after maturity of the instrument indorsed it to D 
 who takes with notice. D sues A upon the note. Can he 
 recover? 
 
 A. Yes. ( D, the indorsee, steps into the shoes of his indorser 
 C, and as C was a holder in due course, and took the instrument 
 free from all defenses, D succeeds to his rights. As C so held 
 the note, his title and rights thereto were such, that they could 
 not be defeated by A. In the transfer, the title and rights 
 held by him passed to D. The notice which D may have had 
 of the fraud in the original transaction does not defeat the 
 rights he acquired by the transfer. One reason of the rule 
 is obvious. The maker of the note would be Uable to the 
 transferrer; his condition is made no harder by the note coming 
 into the hands of one having notice of its infirmities. Bank v. 
 N. Y. B. & P. Co., 148 N. Y. 189. Section 97 of Neg. Inst. 
 Law continues this rule, and is as follows: "In the hands of 
 
56 BILLS AND NOTES 
 
 any holder other than a holder in due course, a negotiable 
 mstrument is subject to the same defenses as if it were non- 
 negotiable. But a holder who derives his title through a holder 
 in due course, and who is not himself a party to any fraud or 
 illegality affecting the instrument, has all the rights of such 
 former holder in respect of all parties prior to the latter." 
 
 Q. A note is usurious in its inception. It is transferred 
 to A for value without notice before maturity, and there is 
 nothing on the face of the note showing usury. Can A recover 
 from the maker? 
 
 A. No. Usury has always been considered a real defense 
 in this state, and no recovery is allowed on the instrument 
 even by a holder in due course. The rule is well stated by 
 Vann, J., in Claflin v. Boorum, 122 N. Y. 385, as follows: "The 
 loan when made was a violation of the statute, and the notes 
 were thus rendered absolutely void, and no subsequent trans- 
 action could make them valid. Even if, as the plaintiffs claim, 
 they purchased the notes before maturity for value and with- 
 out notice, they cannot enforce them, because the vice of 
 usury follows a promissory note into the hands of a bona fide 
 holder. A note, void in its inception for usury, continues 
 void forever, whatever its subsequent history may be. It is 
 as void in the hands of an innocent holder for value as it was 
 in the hands of those who made the usurious contract. No 
 vitality can be given to it by sale or exchange, because that 
 which the statute has declared void cannot be made valid by 
 passing through the channels of trade." 
 
 Q. A makes his promissory note to B for $500 in payment 
 for a usurious loan. B before maturity discounts the note 
 at the X Bank. The bank has no notice of the facts. The 
 note not being paid at maturity, the bank brings suit against 
 A who sets up usury as a defense. Judgment for whom and 
 why? 
 
 A. Judgment for the bank. The note in question was void 
 as between the original parties thereto, and would have con- 
 
BILLS AND NOTES 57 
 
 tinued void in the hands of any individual to whom it might 
 have been transferred; but an exception is made in the case 
 of a bank by the Banking Law (Laws of 1900, chap. 310, sec. 1). 
 "Promissory notes void for usury as between the original 
 parties are nevertheless valid and enforceable when discounted 
 by a state bank for value before maturity in the due course 
 of business without notice of their usurious inception." Schles- 
 singer v. Gilhooley, 189 N. Y. 1. 
 
 Q. X gives to Y a promissory note for $1,000 which is void 
 for usury. Y goes to the Z National Bank and discounts the 
 note through its cashier who has full knowledge of the usury. 
 Upon X's failure to pay the note when due, the bank brings 
 action against him. Can the bank recover? 
 
 A. No. "National and state banks are entitled to protec- 
 tion in the purchase of negotiable paper only in so far as the 
 officers of such banks act in good faith and not where they 
 knowingly and intentionally join with wrongdoers in an at- 
 tempt to evade the laws. Where therefore a bank discounts 
 promissory notes which are void for usury with full knowledge 
 of the payment of an usurious rate of interest thereon, such 
 usury may be pleaded as a defense to an action on the notes, 
 and the provision of the Banking Law (Laws of 1900, chap. 310, 
 sec. 1), modifjang for the benefit of banking institutions the 
 general statutes in relation to usury has no appUcation." 
 Schlessinger v. Lehmaier, 191 N. Y. 69. See also Crusius v. 
 Siegman, 142 N. Y. Suppl. 349; Armstrong v, Middaugh, 74 
 Misc. 46, 
 
 Q. A negotiable promissory note not usurious in its incep- 
 tion, but subsequently becoming so, comes into the hands of 
 A, a bona fide holder for value without notice. He sues the 
 maker, who pleads the usury as a defense. State the rule 
 governing the rights and liabilities of the maker and the owner 
 of the note under the circumstances. 
 
 A. A can recover from the maker. The subsequent usurious 
 transaction in nowise affects the maker, who has already be- 
 
58 BILLS AND NOTES 
 
 come bound upon the instrument. The subsequent negotia- 
 tion of a note upon a usurious consideration cannot defeat an 
 action thereon against the maker by the holder if the instru- 
 ment had a legal inception. All subsequent transfers of a 
 valid note are treated as so many sales of chattels, and any 
 fraud or usury between intermediate parties, while they are 
 defenses between those parties among themselves, are not 
 available to the maker. Cameron v. Chappell, 24 Wend. 94; 
 Cathn V. Gunther, 11 N. Y. 368. 
 
 (Note.) Where a note tainted with usury is exchanged by the holder 
 thereof for a new note, he can recover upon the new note, providing, however, 
 that he is a bona fide holder. Kilmer v. O'Brien, 14 Hun, 414; Treadwell v. 
 Archer, 76 N. Y. 196. 
 
 Q. A is the maker of a note payable to bearer. The note 
 is stolen by B. C acquires the same in good faith for value 
 and before maturity, but does not make any inquiries of B. 
 At the maturity thereof C presents the note for payment to A. 
 A says that the note was stolen from him and refuses to pay. 
 C sues A on the note. Can he recover? 
 
 A. Yes. It is elementary that a thief can convey good title 
 to negotiable paper, although he cannot do so on the sale of a 
 chattel. In order that a recovery can be had by the holder, 
 he must have taken the instrument under such circumstances 
 as to make him a holder in due course. He must have taken 
 the instrument in good faith; mere negUgence will not defeat a 
 recovery. "He is not bound at his peril to be on the alert for 
 circumstances which might possibly excite the suspicion of 
 wary vigilance; he does not owe to the party who puts the 
 paper afloat the duty of active inquiry in order to avert the 
 imputation of bad faith. The rights of the holder are to be 
 determined by simple tests of honesty and good faith, and 
 not by a speculative issue as to his dihgence or negligence. 
 The holder's rights cannot be defeated without proof of actual 
 notice of the defect in title, or bad faith on his part evidenced 
 by circumstances. Though he may have been negligent in 
 taking the paper, and omitted precautions which a prudent 
 
BILLS AND NOTES 59 
 
 man would have taken, nevertheless, unless he acted mala fide, 
 his title, according to settled doctrine, will prevail." O'Brien, 
 J., in Cheever v. R. R., 150 N. Y. 59. Section 95 of the Neg. 
 Inst. Law is in full accord with this statement of the rule, 
 and is as follows: "To constitute notice of an infirmity in the 
 instrument or defect in the title of the person negotiating the 
 same, the person to whom it is negotiated, must have had 
 actual knowledge of the infirmity or defect, or knowledge of 
 such facts that his action in taking the instrument amounted 
 to bad faith." See also Bank v. Kellog, 183 N. Y. 92. 
 
 (Note.) The distinction between real and personal defenses is called 
 attention to. It still exists under the Neg. Inst. Law. A person whose title 
 is defective must be distinguished from one who has no title at all, and who 
 can confer none, as, for example, where one takes title through a forged in- 
 dorsement. Section 94, defining defective title, is as follows: "The title 
 of a person who negotiates an instrument is defective within the meaning 
 of this chapter when he obtained the instrument, or any signature thereto, 
 by fraud, duress, or force and fear, or other unlawful means, or for an illegal 
 consideration, or when he negotiates it in breach of faith, or under such 
 circumstances as amount to a fraud." 
 
 Q. A indorses a note to B, with which to pay a certain other 
 note in the X Bank. A is not liable on the first note, B goes 
 to the cashier of the X Bank and states the facts to him, but 
 says that he wishes to have the note discounted so that he 
 might pay still another note, and that he will pay the one then 
 due within a few days. B paid the note as agreed. The dis- 
 counted note was not paid when due, and the X Bank sues A 
 upon the note. Judgment for whom and why? 
 
 A. A is not hable. The bank was informed of the facts, 
 and therefore took with notice; having done so it does not 
 occupy the position of a holder in due course, and therefore 
 cannot recover. Nickerson v. Ruger, 76 N. Y. 279; Seymour v, 
 McKinstry, 106 N. Y. 240; Brant v. Walsh, 145 N. Y. 502. 
 
 Q, A acquires a check in due course drawn upon the X Bank 
 by B. As a matter of fact B's signature is a forgery, but A is 
 ignorant of the fact. A has the X Bank certify the check. 
 
60 BILLS AND NOTES 
 
 Later A presents the check for payment, and the bank refuses 
 to honor it. In an action by A against the bank, the latter 
 sets up forgery as a defense. State the rights of the parties. 
 
 A. The bank is liable. "Where a check is certified by a 
 bank upon which it is drawn, the certification is equivalent 
 to an acceptance." Section 323 of Neg. Inst. Law. "For 
 more than a century it has been held without question, that 
 it is incumbent upon the drawee of a bill to be satisfied that 
 the signature of the drawer is genuine, that he is presumed to 
 know the handwriting of his correspondents, and if he accepts 
 or pays a bill to which the drawer's name has been forged, 
 he is bound by the act, and can neither repudiate the accept- 
 ance nor recover the money paid." Allen, J., in Nat. Park 
 Bank v. Ninth Nat. Bank, 46 N. Y. 77. See also Lynch v. Bank, 
 107 N. Y. 179; Title G. & T. Co. v. Haven, 196 N. Y. 493. 
 
 Q. A drew a check on the X Bank payable to B. B lost the 
 check, and the finder thereof forged B's name and negotiated 
 it. It came into the hands of C, a holder in due course. C pre- 
 sents it to the bank which pays the same. The bank, upon 
 discovering the above facts, sues to recover back the money 
 paid on the check. What are the rights of the parties? 
 
 A. Judgment for the bank. It is well settled that where 
 the indorsement of the payee of a check has been forged, sub- 
 sequent holders obtain no title to it and payment made to 
 one who holds under such forged indorsements may be re- 
 covered. "The drawee of a draft or check is supposed to 
 know the signature of the drawer, but the same knowledge 
 of the signature of an indorser is not imputable to him, and by 
 acceptance or payment does not admit or guarantee the gen- 
 uineness of the signature of the payee, and money so paid 
 may be recovered back, on the ground that it was paid under 
 a mistake of facts." Holt v. Ross, 54 N. Y. 472. See also 
 Corn Exchange Bank v. Nassau Bank, 91 N. Y. 74; Trust 
 Co. V. Bank, 127 App. Div. 517. 
 
 (Note.) '/A bank by certifying a check in the usual form, simply certi- 
 
BILLS AND NOTES 61 
 
 fies to the genuineness of the signature of the drawer, and that he has funds 
 sufficient to meet it, and engages that those funds will not be withdrawn 
 from the bank by him; it does not warrant the genuineness of the body of 
 the check as to payee and amount. Where a bank certifies a check, which 
 has been altered by changing the date, name of the payee, and raising the 
 amount, and subsequently pays the same, it may recover back the amount 
 paid. The bank is not under a duty to take precautions against subsequent 
 fraudulent alterations; it is the drawer who has control over its form." Ma- 
 rine Nat. Bank v. Nat. City Bank, 59 N. Y. 67. So also White v. Bank, 
 64 N. Y. 316; Clews v. Bank, 89 N. Y. 419; Continental Bank v. Tradesmen's 
 Bank, 173 N. Y. 272. Section 112 of Neg. Inst. Law is in accord with this 
 rule, and is as follows: "The acceptor by accepting the instrument engages 
 that he will pay it according to the tenor of his acceptance; and admits: 
 1. The ejcistence of the drawer, the genuineness of his signature, and his 
 capacity and authority to draw the instrument; and 2. The existence of the 
 payee and his then capacity to indorse." 
 
 Q. A signed a note as surety, and underneath his name 
 wrote "Utica, N. Y^" At maturity the note was not paid, 
 and the notary who protested it, knowing A's residence and 
 place of business was at Rome, N. Y., mailed the notice of 
 protest to A, 22 Railroad Ave., Rome, N. Y. A never received 
 it. IsAUable? Why? 
 
 A. Yes, because he signed as surety. The undertaking of A 
 was not conditional like that of an indorser, nor was it upon 
 any condition whatever. It was an absolute undertaking 
 that the note should be paid by the maker at maturity. When 
 the maker failed to pay, A's contract was broken, and the 
 plaintiff had a complete right of action against him. It was 
 no part of the agreement that the plaintiff should give notice 
 of the nonpayment, nor that he should sue the maker, or use 
 any diligence to get the money from him. The point was 
 decided long ago that the undertaking of a surety on a note 
 hke the one in question is not conditional, but an absolute 
 undertaking that the maker will pay the note when due. Allen 
 V. Rightmere, 20 Johns. 365; Brown v. Curtis, 2 N. Y. 225. 
 Section 113 of Neg. Inst. Law has not changed this rule, and 
 is as follows: "A person placing his signature upon an instru- 
 ment otherwise than as maker, drawer or acceptor is deemed to 
 be an indorser, unless he clearly indicates by appropriate 
 
62 BILLS AND NOTES 
 
 words his intention to be bound in some other capacity." 
 Under this section, however, there is no reason why one should 
 not bind himself as guarantor or surety to a holder in due 
 course, if he clearly indicates such an intent. As the place 
 where the notice was sent does not affect A's liability in this 
 case, he being a surety and as such not entitled to notice, the 
 question of notice will be discussed in the answer to a sub- 
 sequent question in this chapter. 
 
 Q. A is the holder of an instrument payable to bearer. The 
 instrument, unknown to him, had been given upon a usurious 
 consideration. He transfers the note to B for value by de- 
 livering it to him. B subsequently sues the maker and is de- 
 feated, the defense of usury having been set up. He then 
 sues. A. Can he recover? Answer fully. 
 
 A„ No. "Where the holder of a proi^issory note which is 
 tainted with usury, transfers the same for a valuable considera- 
 tion without indorsement and without representations as to 
 its legality, in the absence of knowledge on his part at the 
 time of the transfer, of the defect, no warranty against it 
 will be implied, and an action cannot be maintained against 
 him for the loss sustained. A scienter is essential to estabUsh 
 a warranty as to the validity of the note." Littauer v. Gold- 
 man, 72 N. Y. 506. See also Frank v. Lanier, 91 N. Y. 112; 
 Buehler v. Pierce, 70 App. Div. 621, aff'd in 175 N. Y. 266. 
 Section 115 of Neg. Inst. Law, defining warranty, is as follows: 
 "Every person negotiating an instrument by delivery or by a 
 quahfied indorsement, warrants: 1. That the instrument is 
 genuine and in all respects what it purports to be; 2. That he 
 has a good title to it; 3. That all prior parties had capacity 
 to contract; 4. That he has no knowledge of any fact which 
 would impair the validity of the instnmient or render it value- 
 less. But when the negotiation is by delivery only, the war- 
 ranty extends in favor of no holder other than the immediate 
 transferee." 
 
 Q. A made and delivered his promissory note to B. The 
 latter forged C's name to an indorsement and then indorsed 
 
BILLS AND NOTES 63 
 
 same to D for value. D indorses before maturity to E for 
 value by qualified indorsement in the usual form. When the 
 note became due and was not paid E notified all those whose 
 names appeared upon the note as indorsers; but finding out 
 that C's indorsement was forged and that the others are irre- 
 sponsible sues D. Can he recover? 
 
 A. Yes, as the transferrer of an instrument by qualified 
 indorsement warrants that the instrument is genuine in all 
 respects, what it purports to be, and that all the signatures 
 thereon are genuine. In such cases scienter or knowledge is 
 not necessary in order to hold the transferrer liable. Whitney 
 V. Bank of Potsdam, 45 N. Y. 234; Bell v. Dagg, 60 N. Y. 528; 
 Sec. 115 of Neg. Inst. Law, supra. 
 
 Q. A deUvered to B, an infant, his certain promissory note 
 for $500. B indorses and transfers the same to C for value and 
 before maturity. The note was protested for nonpayment 
 and due notice given. C brings suit against A who defends 
 on the ground that B, the infant, could not pass title to the 
 note by his (the infant's) indorsement. Judgment for whom 
 and why? 
 
 A. Judgment for C. It is provided by the Neg. Inst. Law, 
 sec. 41, that the indorsement of an infant passes the property 
 in the note to the indorsee. This section reads as follows: 
 "The indorsement or assignment of the instrument by a cor- 
 poration or by an infant passes the property therein, not- 
 withstanding that from want of capacity the corporation or 
 infant may incur no liability thereon." 
 
 Q. A, B and C are the respective indorsers on a promissory 
 note for $300. At maturity the note is not paid, and A pays 
 it. A then sues B and C each for $100 contribution, and offers 
 in evidence a parol agreement made by A, B and C at the 
 time of the indorsement that there should be contribution 
 among them. Is the evidence admissible? 
 
 A. Yes. The indorsers can agree among themselves to 
 
64 BILLS AND NOTES 
 
 share the loss equally. The terms of the contract contained in 
 instruments of this character which are within its scope to 
 define and regulate, cannot be changed by parol; but the under- 
 standing between the indorsers is a distinct and separate sub- 
 ject, an outside matter, which may be properly proved inde- 
 pendent of, and without any regard to the instrument itself. 
 Barry v. Ranson, 12 N. Y. 462; Easterly v. Barber, 66 N. Y. 
 433; Withrow v. Slayback, 158 N. Y. 649. Section 118 of 
 Neg. Inst. Law recognizes this rule, and is as follows: "As 
 respects one another, indorsers are liable prima facie in the 
 order in which they indorse; but evidence is admissible to 
 show that as between or among themselves they have agreed 
 otherwise. Joint payees or joint indorsees who indorse are 
 deemed to indorse jointly and severally." 
 
 Q. A's name appears first as an indorser of a promissory 
 note; B's name appears second on the same note. A, in a suit 
 by the holder against him as first indorser, attempts to show 
 that in reahty B signed first, and that they agreed between 
 themselves that B should be primarily liable. Can he show it? 
 
 A. No. While the evidence as we have seen would be ad- 
 missible as between A and B, yet it cannot be admitted in a 
 suit by the holder; as to him the indorsers are liable in the 
 order in which they indorse, and also jointly and severally, 
 and no evidence can be admitted to vary this liability. Hub- 
 bard V. Gurney, 64 N. Y. 457. Section 118 of Neg. Inst. Law 
 only allows evidence to show that as between or among them- 
 selves they have agreed to become bound in a different ca- 
 pacity. 
 
 Q. A sold to B the right to make, use and sell a certain in- 
 vention claimed by A to be patented, for which B gave to A 
 his note as follows: 
 
 $2,000. New York, May 1, 1915. 
 
 Six months after date, I promise to pay to the order of A, 
 two thousand dollars with interest at the Park National Bank 
 of New York City. Given for a patent right. (Signed) B. 
 
BILLS AND NOTES 65 
 
 The note was transferred by the indorsement of A and came 
 into the hands of C, a holder in due course. At the maturity 
 of the note C presented the same for payment which was re- 
 fused on the ground that A had procured the note through 
 fraud and misrepresentation. C brings action against B. Con- 
 ceding the above facts as stated, can C recover? 
 
 A. No. The Neg. Inst. Law, sec. 330, has made an excep- 
 tion to the general rule that fraud or misrepresentation is no 
 defense to an action on a note by a holder in due course, where 
 the instrument is given for a patent right, and which has the 
 words "given for a patent right" prominently and legibly 
 written or printed on the face of said note or instrument. The 
 above section reads as follows: "A promissory note or other 
 negotiable instrument, the consideration of which consists 
 wholly or partly of the right to make, use or sell any inven- 
 tion claimed or represented by the vendor at the time of the 
 sale to be patented, must contain the words ' given for a patent 
 right' prominently and legibly written or printed on the face 
 of such note or instrument above the signature thereto; and 
 such note or instrument in the hands of any purchaser or 
 holder is subject to the same defenses as in the hands of the 
 original holder; but this section does not apply to a negotiable 
 instrument given solely for the purchase price or the use of 
 a patented article." Herdie v. Roessler, 109 N. Y. 127. 
 
 Q. A gives B his promissory note for good consideration, 
 payable at the Mechanics' Bank, Troy, N. Y. On the day 
 of payxaent B goes to the Bank and inquires if the note is paid. 
 B does not protest the note, but goes to A's place of business, 
 tells him that the note is not paid, and then and there demands 
 payment of A. A refuses to pay. B brings suit on the note. 
 C^ he recover? 
 
 A. Judgment for B. It is not necessary to present the instru- 
 ment, give notice of dishonor, or notice of protest in order to 
 hold the maker liable. Section 130 of Neg. Inst. Law provides 
 as follows: "Presentment for payment is not necessary in 
 5 
 
66 BILLS AND NOTES 
 
 order to charge the person primarily liable on the instrument; 
 but if the instrument is, by its terms, payable at a special 
 place, and he is able and willing to pay it there at maturity 
 and has funds there available for that purpose, such ability 
 and willingness are equivalent to a tender of payment on his 
 part. But except as herein otherwise provided, presentment 
 for payment is necessary in order to charge the drawer and 
 indorsers." Protest is not necessary according to sec. 189, 
 which is as follows: "Where any negotiable instrument has 
 been dishonored it may be protested for nonacceptance or 
 nonpayment, as the case may be; but protest is not requked, 
 except in the case of foreign bills of exchange. Notice of dis- 
 honor need not be given to the maker, but must be given to the 
 drawer and indorsers in order to hold them liable. Section 160. 
 
 Q. A makes a note payable three months after its date at 
 his bank. B indorses the same. The note falls due on Satur- 
 day, and the holder presents the note and protests it for non- 
 payment on that day. Both A and B set up the want of a 
 legal demand and presentment. Is this defense good? 
 
 A. The defense is good. Section 145 of Neg. Inst. Law 
 provides as follows: "Every negotiable instrument is payable 
 at the time fixed therein without grace. When the day of 
 maturity falls upon Sunday, or a hoUday, the instrument is 
 payable on the next succeeding business day. Instruments 
 falling due or becoming payable on Saturday are to be pre- 
 sented for pajonent on the next succeeding business day, 
 except that instruments payable on demand may, at the op- 
 tion of the holder, be presented for payment before twelve 
 o'clock noon on Saturday when that entire day is not a holi- 
 day." It will be noticed that this instrument was payable 
 at a certain period after date, and not on demand, therefore 
 presentment was not according to the statute, and hence of 
 no effect. 
 
 Q. X is the maker of a promissory note. Y is an indorser 
 who has a store in Buffalo where he resides. Z is a farmer into 
 
BILLS atjd notes 67 
 
 whose hands the note has come in the regular course of busi- 
 ness. On the day of maturity Z goes to X, and showing the 
 note, asks for the money. X refuses to pay. Desiring to save 
 notarial fees Z goes to Y's store the next day, and throwing 
 the note down on the counter says: "There, X has refused to 
 pay that note and I want you to do so." Y refuses; and in a 
 few days thereafter, Z hears something of the necessity of 
 notice of dishonor or protest. Has the indorser been dis- 
 charged? Discuss fully. 
 
 A. No. The oral notice of dishonor given here is sufficient, 
 according to sec. 167 of the Neg. Inst, law, which says: "The 
 notice may be in writing or merely oral and may be given in 
 any terms which sufficiently identify the instrument, and in- 
 dicate that it had been dishonored by nonacceptance or non- 
 payment. It may in all cases be given by delivering it per- 
 sonally or through the mails." The notice was given in the 
 proper time. Section 174 provides: "Where the person giving 
 and the person to receive notice reside in the same place, notice 
 must be given within the followi:pg times: 1. If given at the 
 place of the business of the person to receive notice, it must 
 be given before the close of business hours on the day follow- 
 ing; 2. If given at his residence, it must be given before the 
 usual hours of rest on the day following; 3. If sent by mail, 
 it must be deposited in the post office in time to reach him in 
 usual com-se on the day following." Section 175 provides as 
 follows: "Where the person giving and the person to receive 
 notice, reside in different places, the notice must be given 
 within the following times: 1. If sent by mail, it must be de- 
 posited in the post office in time to go by mail the day follow- 
 ing the day of dishonor, or if there be no mail at a convenient 
 hour on that day, by the next mail thereafter. 2. If given 
 otherwise than through the post office, then within the time 
 that notice would have been received in due course of mail, 
 if it had been deposited in the post office within the time speci- 
 fied in the last subdivision." 
 
 Q. A was an indorser on a promissory note made by B, 
 
68 BILLS AND NOTES 
 
 discounted by the X Bank. The note was protested for non- 
 payment, and notice thereof given by the bank, by depositing 
 the same in the post office, properly addressed to A. A never 
 received the notice, it having been stolen and destroyed before 
 deUvery by a dishonest post office employee. Because of its 
 nonreceipt, A lost an opportunity of saving himself, and now 
 claims that he is not liable as an indorser because he did not 
 receive the notice. Is he liable? State the rule, 
 
 A. A is liable. Section 176 of Neg. Inst. Law, covers this 
 point. It is as follows: "Where notice of dishonor is duly 
 addressed and deposited in the post office, the sender is deemed 
 to have given due notice, notwithstanding any miscarriage 
 in the mails." Section 177 should also be noticed in this con- 
 nection. It is as follows: "Notice is deemed to have been 
 deposited in the post office when deposited in any branch 
 post office or in any letter box under the control of the post 
 office department." 
 
 Q. A, doing business in New York City, indorses in that 
 city a promissory note which was dated and discounted there. 
 His indorsement did not give specffic directions as to where 
 notice of dishonor should be sent, and the bank duly mailed 
 notice to the street and number in Albany where A resided. 
 A failed to get the notice in time, and thereby lost an oppor- 
 tunity of saving the debt. Is he liable on his indorsement, 
 and why? 
 
 A. Yes. The notice was sent to the proper place according 
 to the provisions of sec. 179 of Neg. Inst. Law, which says: 
 "Where a party has added an address to his signature, notice 
 of dishonor must be sent to that address; but if he has not given 
 such address, then the notice must be sent as follows: 1. Either 
 to the post office nearest to his place of residence, or to the 
 post office where he is accustomed to receive his letters; or 
 2. If he live in one place, and have his place of business in 
 another, notice may be sent to either place; or 3. If he is so- 
 journing in another place, notice may be sent to the place 
 
BILLS AND NOTES 69 
 
 where he is so sojourning. But where the notice is actually 
 received by the party within the time specified in this chapter, 
 it will be sufficient, though not sent in accordance with the 
 requirements of this section." 
 
 Q. A indorsed a note of B, and took back a chattel mortgage 
 to secure him therefor. The note came into the hands of C, 
 a bona fide holder except as to the mortgage. When the note 
 became due, C relying upon the security held by A, failed and 
 neglected to present the note and protest the same, which 
 fact A sets up as a defense in an action against him. Judgment 
 for whom and why? 
 
 A. Judgment for A. The taking of the chattel mortgage was 
 not sufficient to dispense with notice. "The mere precaution 
 by an indorser of taking security from his principal has never 
 been adjudged to operate as a dispensation of regular demand 
 and notice. There must be something more; such as the taking 
 into his possession the funds or property of the principal, 
 sufficient for the purpose of meeting the payment of the notes; 
 or he must have an assignment of all the property, real and 
 personal, of the maker for that purpose." Spencer v. Hawery, 
 .17 Wend. 489; Seacord v. Miller, 13 N. Y. 58. 
 
 Q. A delivered his promissory note for value to B. C be- 
 came the holder thereof in due com^e. Before maturity of 
 the note, B, believing that A would be unable to meet the note, 
 prevailed upon A to give him (B) an assignment of all his 
 property. At the maturity of the note, A did not pay the 
 same, and C still being the holder of the note, neglected to 
 give B notice of presentment and nonpayment. Upon the 
 above facts, can C recover from B? 
 
 A. Yes. It was held in all the early cases before the statute, 
 that demand and notice were unnecessary where the indorser 
 had taken a general assignment of the maker's property, upon 
 the ground, that in such a case, the indorser had obtained 
 everything which notice was intended to enable him to obtain. 
 Merchants' Bank v. Griswold, 7 Wend. 165; Kramer v. Sand- 
 
70 BILLS AND NOTES 
 
 ford, 4 W. & S. 328; Clift v. Rodger, 25 Hun, 41. Section 186 
 of Neg. Inst. Law has not changed this rule; it is as follows: 
 "Notice of dishonor is not required to be given to an indorser 
 in either of the following cases: 1. Where the drawee is a fic- 
 titious person or a person not having capacity to contract, and 
 the indorser was aware of the fact at the time he indorsed the 
 instrument; 2. Where the indorser is the person to whom the 
 instrument is presented for payment; 3. Where the instrument 
 was made or accepted for his accommodation." See Moore v. 
 Alexander, 63 App. Div. 100. 
 
 Q. A makes a promissory note payable to B. B indorses 
 it to C. The note is not paid at maturity. C fails to give 
 notice to B in proper time. B subsequently promises to pay 
 the amount of the note, but thereafter when C demands pay- 
 ment he refuses to pay. C sues B. Can he recover? State 
 the rule. 
 
 A. Yes. The rule is well stated in the case of Ross v. Hurd, 
 
 71 N. Y. 14, as follows: "Where an indorser of a promissory note 
 who has been discharged from liability,. by the failure of the 
 holder to give notice of nonpayment, with full notice of the 
 laches of the holder, unequivocally consents to continue his 
 liability as though due protest has been made, he waives his 
 right to object, and stands in the same position as if proper 
 steps had been taken to charge him. The assent of the in- 
 dorser to be bound may' be established by any transaction 
 between him and the holder which clearly indicates such intent. 
 The assent, however, must be clearly established, and will 
 not be inferred from doubtful or equivocal acts or language, 
 A promise by an indorser to pay a note or bill, after he has 
 been discharged by the failure to give him notice of its dis- 
 honor, will bind him, provided he had full knowledge of the 
 laches when the promise was made. A promise made under 
 these circumstances affords the clearest evidence that the 
 indorser does not intend to take advantage of the laches of 
 the holder, and the law without any new consideration moving 
 between the parties gives effect to the promise." The statute 
 
BILLS AND NOTES 71 
 
 does not alter this rule, as will be seen from an examination 
 of sec. 180 of Neg, Inst. Law, which is as follows: "Notice of 
 dishonor may be waived, either before the time of giving notice 
 has arrived, or after the omission to give due notice, and 
 the waiver may be expressed or implied." See also First Nat. 
 Bank v. Gridley, 112 App. Div. 398. 
 
 Q. A was the holder of a certain promissory note made by 
 B, upon which C was an indorser. Before the note became 
 due, C, the indorser, requested A, the holder, to extend the 
 time of payment for two months longer. A agreed to do so 
 provided C would allow his name to remain on the note as an 
 indorser, which C did. At the maturity of the note A failed 
 to present the note for payment or to give notice to C of non- 
 payment. At the end of the extended time, the note not 
 having been paid, A brings action against C who defends on 
 the ground that he was discharged as indorser, because he did 
 not receive notice of dishonor, and that his assent to the ex- 
 tension of time of payment was without consideration. Judg- 
 ment for whom and why? 
 
 A. Judgment for A, as the action of C amounted to a waiver. 
 "The question, therefore, is whether the facts proven con- 
 stituted a waiver of the indorser's right to a demand of pay- 
 ment and notice of nonpayment thereof. Now it is true that 
 the indorser did not say in so many words, 'I waive demand 
 of notice and nonpayment,' but when he asked that the time 
 of payment be extended a year, he, in effect, requested that 
 no demand of payment be made at maturity. That request, 
 coupled with his promise to let his name remain on the note 
 if the time of payment be extended, must, we think, be held 
 to constitute in legal effect, a waiver of demand and notice of 
 nonpayment." Parker, J., in Cady v. Bradshaw, 116 N. Y. 188. 
 
 Q, A and B, who were partners, indorse a promissory note 
 made by X. X fails to pay the note at maturity, and the 
 holder gives notice of dishonor to A only. The firm of A and 
 B has been dissolved by mutual consent before the maturity 
 
72 BILLS AND NOTBB 
 
 of the instrument, which fact the holder knew. The holder 
 now sues B, A being irresponsible. B sets up the want of legal 
 notice. Judgment for whom and why? 
 
 A. Judgment for the holder. The notice given to one part- 
 ner binds his copartner, even though such notice be given 
 after the dissolution of the firm. The implied agency of one 
 partner for the other continues for this purpose after dissolu- 
 tion, Hubbard v. Matthews, 54 N. Y, 43. It is otherwise 
 as to mere joint debtors, the notice to one not binding the 
 other, unless he has express authority to receive the same. 
 Willis V. Green, 5 Hill, 232. The statute continues these rules 
 without change. Section 170 of Neg. Inst. Law says: "Where 
 the parties to be notified are partners, notice to any one partner 
 is notice to the firm even though there has been a dissolution." 
 Section 171 of Neg. Inst. Law reads: "Notice to joint parties 
 who are not partners must be given to each of them, unless 
 one of them has authority to receive such notice for the others." 
 
 Q. A is an indorser on C's promissory note, which is overdue, 
 and notice of protest has been served on both A and C. A re- 
 quests the holder to proceed at once against the maker as he 
 fears that in a short time C will be unable to pay. The holder 
 neglects to do so, and C fails. The holder sues A and C on 
 the note. Judgment for whom and why? 
 
 A. Judgment for the holder. If the indorser of an overdue 
 note demands of the holder that he proceed against the maker, 
 of whom the amount could then be collected, but who sub- 
 sequently becomes insolvent, and the holder neglects or refuses 
 to do so, the indorser is not discharged thereby. While it is 
 true that the indorser occupies a position similar to that of a 
 surety, he also has a separate liability, his duty being to take 
 up the instrument when dishonored. Trimble v. Thorn, 
 16 Johns. 162; Newcomb v. Hale, 90 N. Y. 326. 
 
 Q. A is a bona fide holder of a note for one year, signed 
 by B and C, apparently as joint makers, and does not know 
 
BILLS AND NOTES 73 
 
 that C is only surety for B. A extends the time of payment 
 for another year on consideration that B give A a chattel mort- 
 gage as additional security. What are the rights and liabilities 
 of C? / State the general rule. 
 
 A. C is not discharged. The general rule is that any ex- 
 tension of time by a valid agreement will discharge the indor- 
 sers; and for this purpose the contract must be supported by a 
 valid consideration. The reason commonly given for this 
 rule is, that the position of the indorser or surety would be 
 jeopardized by the extension of time, his rights and remedies 
 being suspended thereby. Gary v. White, 52 N. Y. 138; Smith 
 V. Erwin, 77 N. Y. 486. But in this case, as against A who 
 was a holder in due course, B and C must be treated as joint 
 makers, and one of them cannot be released by an extension 
 of time to his joint maker. Where a person has signed as 
 surety a joint and several promissory note, and it does not 
 appear by the instrument itself that such relation existed, he 
 may prove such facts by parol. Such proof does not tend to 
 alter the contract; but this can only be shown in suits by the 
 payee or others affected with notice, and not in a suit by a 
 bona fide holder. Hubbard v. Guemey, 64 N. Y. 457; Shutts v. 
 Fingar, 100 N. Y. 559; Brink v. Stratton, 64 App. Div. 331. 
 
 (Note.) Section 201 of Neg. Inst. Law specifies cases in which a person 
 secondarily liable is discharged. It is as follows: "A person secondarily 
 liable on the instrument is discharged: 1. By any act which discharges the 
 instrument; 2. By the intentional cancellation of his signature by the holder; 
 3. By the discharge of a prior party; 4. By a valid tender of payment made 
 by a prior party; 5. By a release of the principal debtor, unless the holder's 
 right of recourse against the party secondarily liable is expressly reserved; 
 6. By any agreement binding upon the holder to extend the time of payment 
 or to postpone the holder's right to enforce the instrument, unless the right 
 of recourse against such party is expressly reserved." 
 
 Q. A is the holder of a past due" promissory note. By a 
 binding agreement he allows C, the maker, three months' addi- 
 tional time in which to pay. D is an indorser for value upon 
 the note before its maturity. Is he released by the agreement 
 of A with C? 
 
74 BILLS AND NOTES 
 
 A. Yes. It is the duty of an indorser of a note to take it 
 up upon its dishonor. The indorser, however, can only suc- 
 ceed to the rights of the holder; when he takes up the note he 
 steps into the shoes of the holder, and would be bound by any 
 agreement of the latter with the maker. Here, as the holder 
 extended the time of payment, the extension being binding 
 upon the indorser would tie up his hands for the period of the 
 extension and thus impair his rights; and this according to 
 the settled rule would discharge him from liability. Green v. 
 Bates, 74 N. Y. 333. 
 
 Q. A gives his note to B, no interest being specified. B adds 
 interest thereto and transfers the same for value before ma- 
 turity to C, who takes it without notice. Can C enforce the 
 note against A for principal and interest? Discuss fully. 
 
 A. No. C can, however, recover the amount of the prin- 
 cipal, as he is a holder in due course. This was a material 
 alteration according to sec. 206 of Neg. Inst. Law, which is as 
 follows: "Any alteration which changes: 1. The date; 2. The 
 sum payable, either for principal or interest; 3. The time or 
 place of payment; 4. The number or the relations of the par- 
 ties; 5. The mediiun or currency in which payment is to be 
 made; or which adds a place of payment where no place of 
 payment is specified, or any other change or addition which 
 alters the effect of the instrument in any respect, is a material 
 alteration." Before the enactment of the statute, a material 
 alteration avoided and discharged the instrmnent, except as 
 against the party who made or assented to the alteration. The 
 alteration extinguished all remedies. Benedict v. Cowden, 
 49 N. Y. 396; Dinsmore v. Duncan, 57 N. Y. 581. The statute 
 has mitigated the rigor of the common-law rule in favor of a 
 holder in due course, and allows a recovery by him according 
 to the original tenor of the instrument, as will be seen from 
 sec. 205 of Neg. Inst. Law, which is as follows: "Where a nego- 
 tiable instrument is materially altered without the assent of all 
 parties liable thereon, it is avoided, except as against a party 
 who has himself made, authorized or assented to the altera- 
 
BILLS AND NOTES 75 
 
 tion and subsequent indorsers. But when an instrument has 
 been materially altered and is in the hands of a holder in due 
 course, not a party to the alteration, he may enforce payment 
 thereof according to its original tenor." 
 
 Q. A draws a check on the X Bank payable to B for $200. 
 He negligently leaves a blank space so that the amount is 
 raised to $2,000. The bank pays out this amount. A sues 
 the bank for the amount it has overpaid. Can he recover? 
 
 A, No. While the general rule is that a bank may only 
 pay out the funds of a depositor in the usual course of business 
 and in conformity to his directions, and it is not entitled to 
 charge to him any payments, except those made at the time 
 when and to the person to whom, and for the amount au- 
 thorized by him, and where a check properly drawn by the 
 customer has been subsequently altered in a material point 
 without his consent, even if done so skillfully as to defy detec- 
 tion on examination, the bank is responsible for an omission 
 to discover the original terms and conditions thereof; yet 
 where the maker has been negligent, he is estopped, and cannot 
 recover. The question of negligence cannot arise unless the 
 depositor has, in drawing his check, left blanks unfilled, or 
 by some affirmative act of negligence has facilitated the com- 
 mission of a fraud by those into whose hands the check may 
 come. This doctrine has been recognized since the early Eng- 
 lish case of Young v. Grote, 4 Bing. 253, and followed in this 
 state in Crawford, v. Bank, 100 N. Y. 50; Critten v. Chemical 
 Nat. Bank, 171 N. Y. 224. 
 
 (Note.) "The indorser of a promissory note, the amount of which has 
 been fraudulently raised after indorsement, by means of a forgery, is not 
 liable upon the instrument, in the hands of a bona fide holder, for the in- 
 creased amount, because of negligence in indorsing the same when there 
 were spaces thereon which rendered the forgery easy, though the note was 
 complete in form. No liability on. the part of the indorser for the amount 
 of such a note, as raised, can be predicated simply upon the fact that such 
 spaces existed thereon." Nat. Bank of Albany v. Lester, 194 N. Y. 461. 
 
 Q. A drew a certain check on the X Bank for $1,000 and 
 delivered the same to B for value, who indorsed it to C for 
 
76 BILLS AND NOTES 
 
 value. C had the X Bank certify it, all taking place in a rear 
 sonable time. The day after the certification, the X Bank 
 fails. C consults you as to his rights and remedies on the 
 check. A and B are both responsible. What would you ad- 
 vise him to do? Give your reasons. 
 
 A. C has no rights. Where the holder of a check presents 
 the same to the drawee when due, and procures it to be certi- 
 fied instead of paid, it is as between him and the drawer and 
 indorsers, treated as payment, and operates to discharge them 
 from liability thereon. First Nat. Bank v. Leach, 52 N. Y. 350. 
 Section 324 of Neg. Inst. Law continues this rule, and is as 
 follows: "Where the holder of a check procures it to be ac- 
 cepted or certified the drawer and all indorsers are discharged 
 from liability thereon." 
 
 Q. A draws his check for $500 and has it certified at the 
 bank. He thereafter delivers the same to B to whom he made 
 the check payable. B within a reasonable time goes to the 
 bank to present it for payment, but shortly before he reaches 
 the bank, it closes its doors through insolvency. B sues A on 
 the check. Can he recover? 
 
 A. Yes. Where a check is certified before delivery, it does 
 not act as payment by the bank any more than an uncertified 
 check, and therefore the loss must fall upon the maker. If 
 the drawer on his own behalf or for his own benefit, has his 
 check certified and then delivers it to the payee, if the bank 
 fails the drawer is not discharged. Freund v. Bank, 76 N. Y. 
 352; White v. Eiseman, 134 N. Y. 101. The distinction must 
 be drawn between certification by the maker of a check before 
 delivery and certification by the payee or holder after de- 
 livery; it is only in the latter case that the maker is discharged. 
 Section 324, supra. "The reason for the rule would seem to 
 be that where the drawer procures the certification himself, 
 the bank knows that the check has not been put into circula- 
 tion, and the act is done for the benefit and at the instance 
 of the drawer. The payee of the check has taken no part in the 
 
BILLS AND NOTES 77 
 
 certification and it is done without his knowledge. On the 
 other hand, where the holder of a check presents it to the bank, 
 procures its certification, he is the one that secures the transfer 
 of the fund to his own account, and consequently the drawer 
 is discharged." CuUinan v. Union S. & G. Co., 79 App. Div. 
 411. See also Meuer v. Bank, 94 App. Div. 340. 
 
 Q. A, a resident of Ohio, borrows $5,000 in New York City 
 from B, a resident of that city, for use in Ohio. A note is 
 given for security, dated at New York City, payable in Ohio. 
 The legal rate of interest in Ohio is 10%, in New York 6%. 
 Upon default, suit is brought in New York State, claincdng 
 interest at 10%. A sets up the defense of usury. What are 
 the rights of the parties? What law governs? 
 
 A. A's defense must fail. It is well settled by the decisions 
 in this state, that commercial paper executed in one state, 
 and payable in another is governed by the law of the state in 
 which it is payable. Cutler v. Wright, 22 N. Y. 472; Bank v. 
 Griswold, 72 N. Y. 472; Sheldon v. Haxtine, 91 N. Y. 124. 
 
 Q. A gave to B his certain promissory note for 1500 payable 
 on demand, and dated the same June 1, 1909. The note was 
 duly transferred to C, a holder in due course. On June 10, 
 1915, C presented the note and demanded payment thereof, 
 which A refused. C comes to you for advice. Can he recover? 
 
 A. No. The right to recover upon this note is barred by the 
 Statute of Limitations, more than six years having elapsed 
 before a demand of payment was made. A demand note is 
 due immediately, and if payment is not demanded within 
 six years, it is outlawed by the Statute of limitations. Herrick 
 V. Wolverton, 41 N. Y. 587; Bank v. Zimmerman, 185 N. Y. 
 217. 
 
 Q. A and B were the joint and several makers of a promis- 
 sory note to the order of C, which was indorsed and transferred 
 to D, a holder in due course. After six years when the note 
 was outlawed by the Statute of Limitations, B without the 
 
'78 BILLS AND NOTES 
 
 knowledge of A paid the interest thereon for six years, which 
 D indorsed upon the note at the request of B. After one year 
 the note not being paid, D brings suit against both A and B. 
 A sets up the defense of the Statute of Limitations. Judgment 
 for whom and why? 
 
 A. Judgment for A. Part payment by one of several joint 
 makers of a promissory note barred by the Statute of Limita- 
 tions does not take it out of the statute as to the others; and 
 this whether such payment is made before or after the debt 
 has been barred. In order to take it out of the statute, it 
 must be done with the authority of the others. The existence 
 of a common Uability of several for a debt does not of it- 
 self make each the agent of the others to bind them by part 
 payment. Van Keuren v. Parmelee, 2 N. Y. 523; Shoemaker 
 V. Benedict, 11 N. Y. 177; Murdock v. Waterman, 145 N. Y. 
 55. 
 
 Q. On June 1, 1905, A made and delivered his promissory 
 note payable three months after date to the order of B. In 
 June, 1915, an action on said note is brought by B's executors 
 (B having died), and A pleads the Statute of Limitations. 
 B's executors produce the note upon which there is indorsed 
 by B in the latter's writing a part payment of the said note. 
 No other evidence is produced, and both sides move for judg- 
 ment. Judgment for whom and why? 
 
 A. Judgment for A. The part payment and the indorse- 
 ment thereof were made at a time when they would not work 
 against the interest of B, therefore if they were not made with 
 the privity of A, they could not be used as evidence against 
 him. "In order to make an indorsement upon a promissory 
 note of part payment made by the holder, without the privity 
 of the maker, competent as evidence to meet the defense of 
 the Statute of Limitations, it must appear that it was made 
 at the time when its operation would be against the interest 
 of the party making it; and so, at least, that it was made be- 
 fore the statute could have operated." Reed v. Hurd, 7 Wend. 
 
BILLS AND NOTES 79 
 
 409; Hulbert v. Nichol, 20 Hun, 459; Mills v. Davis, 113 N. 
 Y. 243. 
 
 Q. A commenced a civil action against B in which an order 
 of arrest was granted. B, desiring to be released, gave his 
 promissory note to A upon condition that A would consent 
 to the discharge of B. A then transferred the note to C, a 
 holder in due course. The note not being paid when due, C 
 brought an action thereon against B, who defended. At the 
 trial C produced the note, proved the amount due thereon 
 and rested. B then showed that the note was given as a condi- 
 tion for his discharge from arrest, and rested. Both then 
 moved for judgment. Judgment for whom and why? 
 
 A. Judgment for B. "A note given as a condition of con- 
 senting to the discharge of a party from arrest in a civil action 
 is void as between the parties, and as to all others, except bona 
 fide holders for value. A person claiming to be a bona fide 
 holder of such a note must show under what circumstances, 
 and for what value he became such; the mere production of 
 the note is insufficient." Douai v. Lutzens, 21 App. Div. 254, 
 aff'd in 165 N. Y. 622. 
 
 Q. The A Express Company issued certain bonds payable 
 to bearer. While B held the bonds, they were stolen, and 
 thereafter they came into the hands of C, a holder in due course. 
 B commences an action of conversion against C. Can he re- 
 cover? 
 
 A. No. "Bonds issued by a joint-stock company payable 
 to bearer, unless the holder prefers to have them registered, 
 in which case they are not to be transferred, except on the 
 books of the company, and also coupons attached thereto 
 payable to bearer, are negotiable." Hibbs v. Brown, 112 App. 
 Div. 214, aff'd in 190 N. Y. 167. The principle of negotiabil- 
 ity is in the instrument having a circulating credit and in its 
 being transferable by indorsement and delivery, or by deUvery 
 merely. To import into the general rule a term or an element 
 of duty, which requires of a purchaser taking in good faith 
 
80 BILLS AND NOTES 
 
 and for value, that he investigate the bona fides of the title of 
 previous holders in the chain of title would be inconsistent 
 with the feature or quaUty of negotiability. There is no middle 
 term between negotiabiUty and non-negotiability, and if, before 
 acquiring a good title to negotiable instruments, it would be 
 necessary for a person to make inquiry of every one in the 
 regular chain of bona fide holders, as the appellant would have 
 it, in order to be assured of his having an undisturbed current 
 of authority to fill in the name of a payee, where would be the 
 negotialDility? The theory of negotiable instruments, and of 
 their currency from hand to hand like bank notes, rests upon 
 the proposition that they appear to belong to the person having 
 them in possession and to no one else." Gray, J., in Bank v. 
 Bank, 171 N. Y. 58. 
 
 Q. Certain bonds of the G Mining Company, negotiable 
 by indorsement only, were made payable to A and duly de- 
 livered to him. Thereafter and before maturity A sells the 
 bonds to B indorsing the same in blank on delivering them. 
 Later they were stolen from B's safe. The thief erased the 
 indorsement of A and sold the bonds to C, impersonating A 
 and indorsing A's name on the bonds. C paid full value for 
 the bonds before maturity and had no notice of the facts. 
 B brings an action of conversion against C. Judgraent for 
 whom and why? 
 
 A. Judgment for B. "Where a thief or finder of negotiable 
 paper, payable to order, which has been indorsed and put in 
 circulation by the payee, erases the indorsement, and subse- 
 quently, personating the payee, forges his signature and trans- 
 fers the paper to a bona fide purchaser for value, no title passes 
 as against the true owner. In such case the purchaser does not 
 take from an apparent owner, nor does he rely upon what 
 appears upon the paper, but he relies upon, and is deceived 
 by the representations of the wrongdoer; against such decep- 
 tion the rules applicable to negotiable paper are not intended 
 to protect." Colson v. Amot, 57 N. Y. 253. See also Man- 
 hattan Savings Inst. v. N. Y. Nat. Exch. Bank, 170 N. Y. 58. 
 
CHAPTER IV 
 Carriers 
 
 Q. What is a common carrier, and what are his duties? 
 
 A. A common carrier is one, who undertakes for hire to 
 transport the goods of all who choose to employ him. It is 
 the duty of every conmion carrier to receive for carriage, and 
 carry the goods of any person tendered to it for transportation, 
 provided they are such as it holds itself out as willing to carry, 
 and the party tendering them offers to pay its proper charges. 
 Fish V. Clark, 2 Lans. (N. Y.) 176, Such a duty is attached to 
 every person or corporation who becomes a common carrier, 
 and under it no carrier can refuse to accept goods of any cus- 
 tomer, except for just cause, nor can any carrier afford to one 
 shipper faciUties not granted to another under same circum- 
 stances. A special contract to carry need not be shown. Mere 
 delivery and acceptance, imply a contract to carry. DeUvery 
 is a sufficient consideration for the undertaking to carry. 5 
 Amer. & Eng. Ency. of Law (2d Ed.), 158. 
 
 (Note.) "In the absence of evidence to the contrary, it is to be assumed 
 that goods accepted by a carrier for transportation are taken under the re- 
 sponsibility cast upon the carrier by the common law, save as modified by 
 the statute. If the goods are lost under circumstances which render the 
 carrier liable by the general rule of law, he must respond unless he can show, 
 that there was a special acceptance equivalent to a contract, which exempts 
 him from the ordinary liability of common carriers in the particular case." 
 Park V. Preston, 108 N. Y. 434. 
 
 Q. Is a sleeping-car company a common carrier? A, a trav- 
 eler, upon retiring for the night to his berth in a sleeping car, 
 places under his pillow $500, which is stolen by a thief. A sues 
 the company. Can he recover? 
 
 A. No. It is well settled that a sleeping-car company is 
 6 81 
 
82 CARRIERS 
 
 not a common carrier. There is, however, an obligation on 
 its part, to exercise reasonable care and viUgance over the 
 persons and property of its passengers, especially while they 
 are sleeping. The company is bound, and it is its right to 
 preserve order and enforce proper decorum, as well as to keep 
 reasonable watch over the persons and property of its passen- 
 gers. Welch V. R. R., 16 Abb. Pr. (N. S.) 352. "Money 
 necessary for the payment of expenses of a journey undertaken, 
 which is carried in the trunk of a passenger, is part of his bag- 
 gage, and if lost while in the custody of the carrier, it is hable. 
 But carriers do not undertake to safely carry and dehver the 
 effects of passengers not delivered into their custody, and it can- 
 not be held that money in a passenger's clothing worn during 
 the day, and placed under his pillow at night, is in the custody 
 of a corporation which carries and furnishes travelers with 
 berths in sleeping coaches." Carpenter v. R. R., 124 N. Y. 53. 
 
 Q. A delivered certain live stock to the X R. R. Co. to be 
 transported over its road. By reason of a strike by the rail- 
 road employees and the violence of the strikers, the company 
 was imable to deliver the stock within a reasonable time, al- 
 though they forwarded them immediately after the strike was 
 over. A sues for damages caused by the delay. Can he re- 
 cover? 
 
 A. No. The strike and the violence of the strikers was an 
 inevitable accident, and the company is excused. "In the 
 absence of a special contract there is no absolute duty resting 
 upon a railroad carrier to deliver the goods intrusted to it 
 within what, under ordinary circumstances, would be a reason- 
 able time. Not only storms, and floods and other natural causes 
 may excuse delay, but the conduct of men may also do so. 
 An incendiary may burn down a bridge, a mob may tear up 
 the tracks or disable the roUing stock, or interpose irresistible 
 force or overpowering intimidation. The only duty resting 
 upon the carrier, not otherwise ih fault, is to use reasonable 
 efforts and due diligence to overcome the obstacles thus inter- 
 posed, and to forward the goods to their destination." Geis- 
 mer v. R. R., 102 N. Y. 563. 
 
CAEKIEES 83 
 
 (Note.) The common carrier's liability is absolute. The carrier is an 
 insurer of the safety of the goods. It is liable for all loss, except that caused 
 by the " act of God," " public enemy," or some "inherent defect in the goods." 
 Merritt v. Earle, 29 N. Y. 117. The "act of God" signifies the violence of 
 nature, such as storms, earthquakes, and unprecedented floods, not caused 
 by any human intervention. To relieve the carrier from liabiUty, the "act 
 of God" must be the sole and immediate cause of the loss. Unprecedented 
 floods of such magnitude, that the ordinary safeguards provided by the 
 carrier are wholly insufficient to withstand their effects, are within the term 
 "act of God," and the carrier is not liable for a loss resulting from a cause, 
 unless it appears that his own want of care was the proximate cause of the 
 loss. McPadden v. R. R., 44 N. Y. 478. 
 
 Q. A purchases a ticket for passage on one of the trains 
 of the N. Y. C. R. R. Co., from New York to Chicago, expect- 
 ing to reach the latter place within twenty-four hours as stated 
 by the time-table of the company. By reason of a severe snow- 
 storm, the train is delayed for two days, and A does not reach 
 his destination before that time. A brings action against the 
 company for damages caused by the delay. Can he recover? 
 
 A. No. The snowstorm was an inevitable accident for which 
 the company was not responsible. "A common carrier is not 
 an insurer as to the time when passengers will reach their 
 destination, in the absence of an express contract on the sub- 
 ject. If a railroad company negligently fails to keep the time 
 it promises, it wUl be liable in damages for the injury thereby 
 occurring to a passenger. But to entitle the plaintiff to re- 
 cover there must be proof of negligence. Neither time-table 
 nor advertisement is a warranty of punctuality. A snow- 
 storm of such severity that it delays trains, although the rail- 
 road company made strenuous efforts to clear the tracks, must 
 be classed as an act of God, and proof of its occurrence and 
 effect, constitute a complete defense to the claim of a passen- 
 ger for damages by reason of being delayed thereby." Cor- 
 mack V, R. R., 196 N. Y. 442. 
 
 Q. A entered into a contract with B, whereby he agreed to 
 transport from New York to St. Louis, Mo., and safely de- 
 liver in thirty days, certain goods at a certain price. A ex- 
 
84 CARRIERS 
 
 pected to transport the goods by way of a canal in Pennsyl- 
 vania. In consequence of an unusual freshet, this canal was 
 not navigable, and the goods were detained for fifteen days, 
 and did not arrive in St. Louis until twenty days after the time 
 specified in the contract. B sues A for breach of contract. 
 The latter sets up as a defense that the delay was caused by 
 the "act of God." Can B recover? 
 
 A. Yes. If a carrier undertakes by special contract to de- 
 liver goods at the point of destination at a fixed time, it is 
 bound to do so, and is liable for failure to do so within the pre- 
 scribed time. Inevitable accident, or the "act of God" is no 
 defense. Harmony v. Bingham, 12 N. Y, 99. 
 
 Q. A makes an agreement with a railroad company, whereby 
 in consideration of a reduced rate, he releases the company 
 from all claims for any damage or injury, "from whatsoever 
 cause arising." He shipped some goods with the said railroad 
 company. The goods are lost through the negligence of the 
 company. A sues the company. Can he recover? 
 
 A. Yes. "While it is settled in New York, that a common 
 carrier can stipulate against liability for loss resulting from 
 his own negligence by special agreement, yet the contract 
 will not be construed as exempting the carrier from liability 
 for negligence, unless it is expressed in unequivocal terms. 
 In this case, the exemption did not specifically include a loss 
 arising from the carrier's negligence, and for such loss it must 
 be held liable." Maynard v. R, R., 71 N. Y, 180. 
 
 Q. A ships goods by the N. Y. C. R. R. Co., and agrees to 
 limit the amount of the company's liability for loss to an 
 amount not exceeding $5,000. The goods are lost, and A sues 
 the company for $10,000 which he alleges is the actual value of 
 the goods. The company sets up the agreement as a defense. 
 Judgment for whom, and for how much? 
 
 A. Judgment for A for $5,000. "Where the shipper of prop- 
 erty enters into a contract with a carrier, whereby it is stip- 
 
CARRIERS 85 
 
 ulated that the event of loss or injury resulting from causes 
 which would make the carrier liable, the liability shall be 
 limited to an amount not exceeding a valuation specified, the 
 shipper in case of loss or injury, can recover no more than the 
 sum specified." Zimmer v. R. R,, 137 N. Y. 460. 
 
 Q. A was a passenger on the D., L. & W. R. R. While seated 
 in the train, he gave his baggage checks to the agent of the D 
 Express Company, to have the baggage sent to his residence 
 in New York. He received in return therefor a printed re- 
 ceipt which contained a statement limiting the liability of 
 the company to $100. The car at the time was so dark that 
 he could not read the printed matter, and he therefore did 
 not do so. The express company fails to deliver. A sues the 
 company for $500, the value of the baggage. Can he recover 
 and how much? 
 
 A. Yes, he can recover $500. The nature of the transaction 
 was not such as would make the passenger believe that the 
 receipt contained a contract. "Where a railroad passenger 
 in a dimly Ughted car receives a receipt for baggage on which 
 a contract is printed in fine type so as not to be easily read 
 by a passenger; if he fails to see it, he is not bound by its terms." 
 Blossom V. Dodd, 43 N. Y. 264. 
 
 (Note.) Where a traveler, on delivery of baggage to a local express com- 
 pany, receives a paper, which he has a right to regard as a receipt to enable 
 him to follow and identify his property, and no notice is given him that it 
 embodies the terms of a special contract, his omission to read the paper is 
 not negligence, and he is not bound by its terms. There must be notice 
 either actual or constructive. The notice "read this ticket," etc., must be 
 printed in large type at some conspicuous place on the ticket, so as to be 
 easily read, in order to charge the party receiving it with constructive notice. 
 Madan v. Scherard, 73 N. Y. 329. "It is incumbent upon a shipper to ac- 
 quaint himself with the contents of a contract executed by him, and al- 
 though he fails to do so, will be held chargeable with knowledge thereof. 
 The cases where parties proposing to have articles of property transported 
 by a carrier, deUberately enter into some necessary contract relating to the 
 transportation, differ materially from those cases of travelers who commit 
 their trunks or articles of baggage to an agent of some express or transporta- 
 tion company, and receive at the moment some paper which, as has been 
 
86 CARRIERS 
 
 said, amounts simply to a voucher enabling them to follow and identify their 
 property. There is a distinction between contracts of shipments of mer- 
 chandise, and such contracts as local express companies endeavor to force 
 upon travelers. While a carrier may limit its hability by express contract, 
 the burden rests upon it to show that the passenger assented to the terms 
 of such receipt." Grossman v. Dodd, 63 Hun, 324, aff'd in 137 N. Y. 599; 
 Springer v. Westcott, 166 N. Y. 117. 
 
 Q. A makes an oral agreement with a railroad company 
 in regard to shipping goods. After the goods were shipped, 
 and on the same day, the company gave him a bill of lading 
 containing conditions not in the oral agreement. The goods 
 are lost under such conditions that the bill of lading does not 
 cover the loss. A sues the company. Can he recover? 
 
 A. Yes. "Where goods are shipped under a verbal agree- 
 ment for the transportation thereof, such agreement is not 
 merged in a bill of lading, partly written and partly printed, 
 delivered to the shipper after he has parted with the control 
 of his goods, although such bill of lading by its terms limited 
 the habiUty of the carrier, and expressed on its face that by 
 accepting it, the shipper agreed to the conditions. The mere 
 receipt of the bill, after the verbal agreement had been acted 
 upon, and the shippers omitting through inadvertence, to ex- 
 amine the printed conditions, are not sufficient to conclude him 
 from showing what the actual agreement was under which the 
 goods had been shipped." Bostwick v. R. R., 45 N. Y. 712. 
 
 Q. A shipped his trunk by the N. Y. C. R. R. Co., in New 
 York City for Albany, and the next day called for the trunk 
 at Albany. It could not be found. A sues the company, 
 proves delivery to the company, the contract, the demand 
 and value. The company does not offer any evidence. Judg- 
 ment for whom and why? 
 
 A. Judgment for A. Nondelivery or delivery in bad con- 
 dition of goods is prima facie evidence of negligence. If another 
 than plaintiff is not named as consignee, plaintiff's evidence 
 that the carrier's contract was made with himself, is sufficient 
 proof of his title. Therefore, here A's evidence establishes 
 
CARRIERS 87 
 
 his title, and the company's negUgence, and he must recover. 
 Canfield v. R. R., 93 N. Y. 532. 
 
 Q. A ships goods to B by raih-oad from Troy to Rochester. 
 The goods arrive safely and properly at Rochester. The rail- 
 road company notifies B to take the goods. B fails to do so, 
 and the railroad stores the goods in one of its warehouses. 
 A week later the goods are destroyed by fire without negli- 
 gence on the part of the railroad. At the trial on the above 
 facts, both sides move for judgment. On what ground did 
 the plaintiff base his motion? On what ground did the de- 
 fendant base his motion? What did the court say? 
 
 A. The ruling of the court must have been, that the sole 
 question involved was whether or not one week was a reason- 
 able time for the consignee to remove the goods. "The duty 
 of a common carrier by railroad as to the delivery of goods 
 at the place of destination, is subject to the following rules: 
 If the consignee is present upon their arrival, he must take 
 them without unreasonable delay. If he is not present, but 
 fives at or in the immediate vicinity of the place of delivery, 
 the carrier must notify him of their arrival, and he then has a 
 reasonable time in which to remove them. If he is absent, 
 unknown, or cannot be found, then the carrier can place them 
 in his freight house, and if the consignee does not call for them 
 in a reasonable time, the liability as common carrier ceases. 
 If the consignee has a reasonable opportunity to remove them 
 and does not, he cannot hold the carrier as an insurer." Fen- 
 ner v. R. R., 44 N. Y. 505. See also Falkner v. Hart, 82 N. 
 Y, 413. 
 
 (Note.) "What constitutes a reasonable time cannot be measured by 
 any arbitrary or inflexible rule, but depends upon the circumstances of each 
 case, and if the facts are undisputed, it is a question of law for the courts to 
 determine. After the liability of the railroad company as a common carrier 
 ceases towards the owner of the trunk checked by it, it still owes a duty to 
 him, although its strict liability as a carrier has been changed to a modified 
 liability, such as that of a warehouseman, and it can be charged with re- 
 sponsibility for the loss of the trunk, only on the ground that it was negligent, 
 and failed as such warehouseman to discharge in full the duty it owed to the 
 owner of the trunk." Mortland v. R. R., 81 Hun, 473. 
 
88 CARRIERS 
 
 Q. A ships goods to B by the D., L. & W. R. R., to Elmira, 
 N. Y. The company notifies B, who calls at the office at 5 
 p. M. on the day of arrival, and asks the company to keep the 
 goods for him until the next morning, which the company 
 agreed to do. A fire breaks out during the night, and the 
 goods are consumed without any negligence on the part of the 
 company. B sues the company for the value of the goods. 
 Can he recover? 
 
 A. No. "When the consignee has notice of the aftival of 
 his goods, and without any refusal or unwilUngness on the 
 part of the carrier to deliver, agrees with the latter for their 
 mutual convenience, that the goods be left overnight in a freight 
 house, the liability as a common carrier has ceased, and the 
 goods being destroyed by fire during the night, the company 
 cannot be held as an insurer." Fenner v. R, R., supra. 
 
 Q. A, an inhabitant of Cairo, 111., shipped goods by the 
 lUinois Central to Byron Rogers, 50 Chambers Street, N. Y. 
 City. At Buffalo, the New York Central, by its traffic arrange- 
 ment with the Illinois Central, took the goods for the purpose 
 of carrying them through to New York. By an error of the 
 New York Central agents, the address became changed to 
 Bryan and Rogers, and as the latter was an unknown firm in 
 New York, after ten days, in which the railroad company 
 tried to find the consignee, the railroad stored the goods with 
 a reputable warehouse. The goods were subsequently de- 
 stroyed by fire, through no fault of the bailee. The consignee 
 wishes to bring suit for the value of the goods. Who would 
 you sue? 
 
 A. The consignee has a right of action against the New 
 York Central. "In the case of the transportation of property 
 over several railroads, constituting a connecting line, neither 
 company is the agent of the owner; each exercises an independ- 
 ent contract with the owner, and is responsible for its own 
 negligence, and it cannot make the owner responsible for the 
 negligence of a connecting road." Sherman v. R. R., 64 N. 
 Y. 254. 
 
CAKRIERS 89 
 
 Q. A shipped certain goods to Buffalo by the X Railroad 
 Company, and received a bill of lading which contained the 
 provision that the goods were to be transported at the "owner's 
 risk." Part of the goods were lost in transit through the negli- 
 gence of the railroad company. A brings action against the 
 railroad company. Can he recover? 
 
 A. Yes. A carrier is liable for the loss of goods occasioned 
 through its negligence, although the goods were to be shipped 
 at the "owner's risk." Kenney v. R. R., 125 N. Y. 425. 
 
 Q. X, a swindler in Rome, N. Y., orders goods of the Y Com- 
 pany of Buffalo in the name of John Doe & Co., a fictitious 
 firm. The Y Company ships the goods by the N. Y. C. R. R. 
 Co. The railroad company delivers them to X, who absconds 
 with the goods. The Y Company sues the railroad company. 
 Judgment for whom and why? 
 
 A. Judgment for the Y Company. "Where a common car- 
 rier without requiring evidence of identity delivers goods to a 
 stranger which have been fraudulently ordered by the latter in 
 the name of a fictitious firm, which have been shipped in com- 
 pliance with the order directed to the fictitious firm, the carrier 
 is liable to the consignor for their value." Price v. R. R., 50 
 N. Y. 213. 
 
 Q. A, a passenger on the Erie R. R. Co., finding no vacant 
 seat in the ordinary car, entered the drawing-room car, which 
 was not owned by the railroad company, and took a seat there. 
 When called upon for an extra fare he refused to pay, but an- 
 nounced his willingness to go into another car if a seat were 
 provided for him there. The porter of the drawing-room car 
 forcibly ejected him. A sues the railroad company. Can he 
 recover? 
 
 A. Yes. The railroad company is liable for the assault. "A 
 railroad company cannot relieve itself of its obligations and 
 liabiUties as a common carrier of passengers, to those passengers 
 who make use of the accommodations afforded by sleeping. 
 
90 CAKRIERS 
 
 palace, or drawing-room cars. The porter of the drawing- 
 room or sleeping car is, in the performance of the duties of the 
 railroad company under its contract, the servant of that com- 
 pany, although it does not hire or pay the porter. A railroad 
 company by the sale of a ticket for passage on its road, assumes 
 the obligation, and undertakes absolutely to protect the pas- 
 senger against any injury from negligence or willful misconduct 
 of its servants while performing its contract. Whatever may 
 be the motive which incites the servant to commit an unlaw- 
 ful or improper act towards the passenger, diu-ing the existence 
 of the relation of carrier and passenger, the carrier is liable for 
 the act, and its natural and legitimate consequences." Thorpe 
 V. R. R., 76 N. Y. 402. See also Dwinelle v. R. R., 120 N. Y. 
 117. 
 
 Q. A, a passenger on a street railway car, is struck by the 
 conductor of said car without provocation on A's part. A sues 
 the company for damages. The company defends, on the 
 ground that the act of the conductor was malicious, and not 
 within the scope of his employment. Is the defense good? 
 Judgment for whom and why? 
 
 A. Judgment for A. "The rule relieving a master from lia- 
 bility for a malicious injury inflicted by his servant, when not 
 acting within the scope of his employment, does not apply as 
 between a common carrier of passengers and a passenger. Such 
 a carrier undertakes to protect a passenger against any injury 
 resulting from the negligence or willful misconduct of its serv- 
 ants, while engaged in performing a duty which the carrier 
 owes to the passenger. The carrier's obligation is to carry his 
 passengers safely and properly, and to treat them respectfully, 
 and if he intrusts this duty to his servants, the law holds him 
 responsible for the manner in which they execute the trust." 
 Stewart v. R. R., 90 N. Y. 588. 
 
 Q. X, a passenger on a street railway car, uses profane and 
 insulting language to the conductor of said car, whereupon the 
 latter strikes and severely injures him. X sues the company. 
 Can he recover? Give your reasons. 
 
CARRIERS 91 
 
 A. No. "While it is true that the use of the abusive lan- 
 guage to the conductor did not justify the assault, so far as the 
 conductor was concerned, in the eyes of the criminal law, there 
 is no reason for holding that where a passenger, by his own 
 improper and insulting behavior while a passenger, brought 
 upon himself the assault, that the carrier should be held respon- 
 sible. It is clear that the conductor was not acting within the 
 course of his employment and the defendant could only be held 
 liable under the rule, that the carrier was responsible for the 
 willful acts of its servants; but such rule can have no applica- 
 tion to a case, where the injury was brought about by improper 
 behavior of the passenger, which caused the assault of which he 
 complains." Scott v. R. R., 53 Hun, 414; Kosters v. R. R., 
 151 N. Y. 630. It seems that where a passenger on a car is 
 assaulted by the conductor for remonstrating with him for 
 abusing another passenger, the company would be liable. A 
 distinction must be drawn between a case where the passenger 
 with the intention of bringing about an altercation, uses pro- 
 fane and insulting language, and is then assaulted by the con- 
 ductor; in such a case the passenger could not recover. In 
 Stewart v. R. R., supra, the passenger had an altercation with 
 the conductor for beating a boy, and was assaulted by the 
 conductor; the court held the company hable. In the case of 
 Weber v. R. R., 47 App. Div. 306, the court draws a distinction 
 and seems to hold that a recovery would be allowed in all such 
 cases, except where the passenger, with the intention of bring- 
 ing about an altercation, is assaulted by the conductor, could 
 not recover. 
 
 Q. A goes to the station of the X Railroad Company, and ten- 
 ders a $2 bill iii payment for a ticket. The ticket agent has been 
 notified by the police authorities to watch for men of a certain 
 description, suspected of passing counterfeit bills. The agent 
 suspected A of being one of the counterfeiters wanted by the po- 
 lice, and thought the bill looked queer, but nevertheless took it, 
 and gave back the change with the ticket, saying nothing to A. 
 The agent then sent for a police officer, to whom he pointed out 
 A who was then on the station platform. A was arrested. The 
 
92 CARRIERS 
 
 bill was subsequently pronounced to be genuine, and A was 
 discharged. A brings action against the company. Can he 
 recover? 
 
 A. No. "The company is not responsible, because the agent 
 was not, in what he did, acting within the scope and line of his 
 duty. His acts were not such as would be deemed to be per- 
 formed in the course of his employment, or such as were de- 
 manded for the protection of his employer's interest, but rather 
 those of a citizen, desirous of aiding the police in the detection 
 and arrest of persons suspected of being engaged in the commis- 
 sion of a crime. His duty as the particular agent of the com- 
 pany, was to have refused to accept and change the bill ten- 
 dered in payment for the passage ticket, if he supposed that it 
 was not genuine, and when he did accept it, his only purpose 
 could have been to further the efforts of the police authorities 
 by such a step, and could not possibly be considered as some- . 
 thing which his employer or employment required of him. 
 Here the ticket agent was not acting for the protection of the 
 company's interests, but went quite outside of the line of his 
 duty to perform a supposed service to the community, by 
 procuring the arrest of criminals whom he knew the authorities 
 were endeavoring to apprehend." Mulligan v. R. R., 129 N. 
 Y. 506. 
 
 Q, A purchased a ticket of the agent at an elevated railroad 
 station, and passed through to take the cars after some dispute 
 about the amount of the change. The ticket agent imme- 
 diately afterwards came out upon the platform of the station, 
 charged him with having given a counterfeit piece of money, 
 and demanded another coin in place of it. A insisted upon the 
 money being genuine, and refused to give another coin or to 
 hand back the change. The ticket agent called him a counter- 
 feiter and detained him in the station until he could procure 
 a policeman to arrest and search him. The charge proving 
 unfounded, A brings action against the company. Can he 
 recover? 
 
 A. Yes. This case must be distinguished from the preceding 
 
CAKBIERS 93 
 
 case, in that the act was done within the agent's authority and 
 for the company's interests. "Here the agent was acting for 
 his employers, and with no other conceivable motive; losing 
 his temper and injuring and insulting the plaintiff upon the 
 occasion. He believed that plaintiff had passed a counterfeit 
 piece of money upon him, and thus had obtained a passage 
 ticket and good money in change. What he did was in the en- 
 deavor to protect and to recover his employer's property; and 
 if, in his conduct, he committed an error, which was accom- 
 panied by insulting language and the detention of the person, 
 the defendant, as his employer, is legally responsible, in an ac- 
 tion for damages for the injury. For all the acts of a servant 
 or agent which are done in the prosecution of the business en- 
 trusted to him, the carrier becomes civilly liable, if its pas- 
 sengers or strangers receive injury therefrom. The good faith 
 and motive of the defendant are not a defense, if the act was 
 unlawful. Though injury and insults are acts in departure of 
 the authority inferred or implied, nevertheless as they occur 
 in the course of the employment, the master becomes responsible 
 for the wrong committed." Gray, J., in Pahneri v. R. R., 133 
 N. Y. 261. 
 
 Q. In an action by A against the X Railroad Company for 
 false imprisonment, it appeared that A had purchased a ticket 
 for passage on the trains of the X Railroad, and that he had 
 boarded one of the trains of the said railroad company. That 
 before reaching his destination he had lost his ticket. When 
 he reached the end of the journey he tried to pass out of the 
 station, but was not allowed to do so by the station master 
 who told him that he could not pass unless he paid his fare or 
 purchased a ticket. A then stated to the station master that 
 he had purchased a ticket but had lost the same, but the station 
 master would not let him pass. When A insisted on passing, 
 the station master ordered his arrest. It was the duty of the 
 station master not to permit anyone to pass unless he had a 
 ticket or paid his fare. Conceding the above facts as stated, 
 judgment for whom and why? 
 
 A. Judgment for A. "The defendant had such a regulation 
 
94 CARRIERS 
 
 and no complaint can be made of that. But it had no regula- 
 tion and could legally have none that a passenger before leaving 
 its cars or its premises should produce a ticket or pay his fare, 
 and if he did not, that he should then and there be detained 
 until he should do so. At most the plaintiff was a debtor to 
 the defendant to the amount of his fare, and that debt could 
 be enforced against him by the same remedies which any cred- 
 itor has against his debtor. If the defendant had the right to 
 detain him to enforce payment of the fare for ten minutes, it 
 could detain him for one hour, or a day, or a year, or for any 
 other time until compliance with its demand. That would be 
 arbitrary imprisonment by a creditor without process or trial, 
 to continue during his will until his debt should be paid. Even 
 if a reasonable detention may be justified to enable the carrier 
 to inquire into the circumstances, it cannot be to compel pay- 
 ment of fare. The detention here was not to enable the gate- 
 keeper to make any inquiry, but simply to make payment. He 
 was absolutely informed that he could not pass out without 
 producing the ticket or paying his fare." Earl, J., in Lynch 
 V. R. R., 90 N. Y. 77. 
 
 Q. A tramp was stealing a ride on a railroad car. A brake- 
 man eipaployed by the railroad company kicked the tramp off 
 the car while it was in motion. The tramp fell under the 
 wheels of the car, and was injured. He brings suit against the 
 railroad company, which defends: 1. That the plaintiff was a 
 trespasser. 2. That the brakeman was not acting within the 
 scope of his employment. Judgment for whom and why? 
 
 A. The company is liable. The company had a right to re- 
 move plaintiff from the car but not by the unreasonable and im- 
 proper means which they used, and which subjected him to un- 
 necessary danger. It is true in this case that the plaintiff was 
 a trespasser, and the company owed him no duty of protection. 
 Its servants had a right to remove him from the car but could 
 not subject him to any extra hazard in doing so, or to so vio- 
 lently assault him as to cause him to fall from it. Although he 
 was a trespasser, they owed him the duty not to subject him to 
 
CAERIEBS 95 
 
 danger. Although the brakeman's act was unreasonable and 
 ill-timed, yet it was clearly within the scope of his employment, 
 for it was his duty to expel trespassers "from the train. McCann 
 V. R. R., 117 N. Y. 605; Ansteth v. R. R., 145 N. Y. 210. 
 
 Q. A wished to cross a street which was blocked by vehicles 
 and by the car of the X Railway Company. He mounted the 
 platform of the car for the purpose of reaching the other side 
 of the street, and in doing so was struck by the driver of the 
 car, causing him to fall and severely injure himself. He sues 
 the company for the damages sustained. Can he recover? Give 
 reasons, 
 
 A. The company is liable. "Where a street car is stopped so 
 as to obstruct the passage of a traveler on foot desiring to cross 
 the street, it is not a trespass or wrongful act on his part to step 
 upon and pass over the car in order to avoid the obstruction; 
 he has a right to do so. The company had no right to remove 
 the plaintiff from the platform and hence could confer none on 
 its servants. The driver was acting within the course of his 
 employment in keeping the platform clear." Shea v. R. R., 
 62 N. Y. 180. 
 
 Q. A, a conductor on a freight train, invited B, who is walk- 
 ing along the road, to come aboard the train. B does so. While 
 on the car, he is injured by the negligence of the company's 
 employees. B sues the company. Can he recover? 
 
 A. No. B was not riding as a passenger and therefore had 
 no rights as such. The conductor had no authority, actual or 
 apparent, to invite him to board the train, and the company 
 cannot be held liable. Eaton v. R. R., 57 N. Y. 322. 
 
 (Note.) In Ulrich v. R. R., 108 N. Y. 80, one traveling on a free pass was 
 injured by a collision due to the negligence of the railroad company. Upon 
 the pass was an indorsement releasing the company from liabihty in case 
 of accident. Held, that the person was not a passenger, and could not recover 
 against the railroad company. 
 
 Q. A, a passenger on a street car, informs the conductor that 
 B, a fellow passenger, is intoxicated and threatens to strike 
 
96 CARBIERS 
 
 him. The conductor pays no attention to this. B strikes A, 
 injuring him severely. A brings action against the company. 
 Can he recover? 
 
 A. Yes. "A railroad conpany is not responsible for the 
 wrongful acts of a passenger, but it is bound to exercise the 
 utmost vigilance in maintaining order and guarding its passen- 
 gers against violence. It has authority to refuse to receive as 
 a passenger, one who so demeans himself, so as to endanger the 
 safety, or interferes with the reasonable comforts and conven- 
 ience of other passengers; and this police power, the conductor 
 or other servant in charge of the car is bound to exercise with 
 all the means at its command when the occasion requires. 
 If this duty is neglected, and in consequence a passenger re- 
 ceives injury which might have been reasonably anticipated, 
 the company is liable. The fact that an individual has drunk 
 to excess will not, in every case warrant his expulsion; it is 
 rather the effect upon him and that by reason of intoxication, 
 he is dangerous and annoying to others, that gives the right 
 and imposes the duty of expulsion. The conductor is only 
 called upon to act upon improprieties or offenses witnessed by 
 or made known to him; and the company can only be charged 
 for the neglect of some duty arising from circumstances of 
 which the conductor was cognizant, all of which in the dis- 
 charge of his duties he ought to have been cognizant." Put- 
 nam V. R. R., 55 N. Y. 108; Carpenter v. R. R., 97 N. Y. 494. 
 
 Q. A was about to alight from a railroad car on which he was 
 a passenger, when the conductor, under no obligation in the 
 discharge of his duty to do so, but simply to show his gallantry, 
 assumed to assist her, and did so, but in such a negUgent way 
 by suddenly withdrawing his support, as to cause A to fall 
 and severely injiu"e herself. She was free from negligence. 
 A brings suit against the company. Can she recover? 
 
 A. Yes. "I think we must reach the conclusion that, while 
 the defendant was under no obligation to supply the aid of a 
 servant in assisting the plaintiff to descend from the car, yet 
 
CARRIERS 97 
 
 as the conductor undertook to do so, she had the right to rely 
 upon that official's careful performance of his undertaking, 
 and to hold the defendant responsible for any failure on his 
 part to use reasonable care." Gray, J., in Hanlon v. R. R. Co., 
 187 N, Y, 77. 
 
 Q. While A was a passenger on the Erie R. R., the train was 
 suddenly derailed, and he was severely injured. He brings 
 action to recover damages and at the trial his attorney proved 
 these facts and nothing more. The company's attorney moves 
 to dismiss on the ground that plaintiff has shown no negligence 
 against the company. How should the court decide the motion? 
 
 A. The motion to dismiss should be denied. "Whenever a 
 car or train leaves the track, it proves that either the tracks or 
 machinery or some portion thereof is not in a proper condition, 
 or that the machinery is not properly operated, and presump- 
 tively proves that the defendant, whose duty it is to keep the 
 track and machinery in the proper condition and to operate it 
 with the necessary prudence and care, has in some respect vio- 
 lated his duty." Edgerton v. R. R., 39 N. Y. 227. Defendant 
 was then bound to show and give some explanation of the cause 
 of the accident. Plaintiff had established a prima facie case 
 and the burden of explaining the cause of the accident rested 
 upon the defendant. This rule is well settled. Caldwell v. 
 S. S. Co., 47 N. Y. 291; Ginna v. R. R., 67 N. Y. 597; Seybold 
 V. R. R., 95 N. Y. 562; Cosulitch v. S. O. Co., 122 N. Y. 127. 
 
 ^ 
 
CHAPTER V 
 
 Constitutional Law 
 
 Q. The provisions of a treaty made between the United 
 States and Great Britain are in conflict with a statute of the 
 United States which has been in force since 1796. The court is 
 called upon to determine which is binding upon it, the treaty 
 or the statute. What should its judgment be and why? 
 
 A. The judgment should be that the last in order of time 
 prevails. Article 6 of the United States Constitution provides 
 in part as follows: This Constitution and the laws of the United 
 States which shall be made in pursuance thereof, and all trea- 
 ties made or which shall be made under the authority of the 
 United States, shall be the supreme law of the land, and the 
 judges in every state shall be bound thereby, anything in the 
 Constitution, or laws in any state to the contrary notwith- 
 standing." "As between a law of the United States made in 
 pursuance of the Constitution and a treaty made under the 
 authority of the United States, if the two in any of their pro- 
 visions are found to conflict, the last one in point of time must 
 control. For the one as well as the other is an act of sovereignty, 
 differing only in form and in the organ and agency through 
 which the sovereign will is declared. Each aUke is the law of 
 the land in its adoption, and the last law must repeal every- 
 thing that is of no higher authority which is found to come in 
 conflict with it. A treaty may therefore supersede a prior act 
 of Congress, and on the other hand an act of Congress may 
 supersede a prior treaty." Cooley, Const. Law, pp. 31, 32. 
 See Foster v. Neilson, 2 Peters (U. S.), 253. 
 
 Q. The city of Buffalo makes an assessment on property, to 
 pay for certain local improvements which benefit the property, 
 but gives no notice to the owner. The owner comes to you for 
 98 
 
CONSTITUTIONAL LAW 99 
 
 advice. What are his rights, and what constitutional provi- 
 sion is involved? 
 
 A. He has the right to have the assessment vacated. The 
 constitutional provision involved is that part of sec. 6 of art. 1 
 of the New York Constitution which provides as follows: "No 
 person shall be deprived of life, liberty or property without 
 due process of law." " A law imposing an assessment for local 
 improvement, without notice to, and without a hearing, or an 
 opportunity to be heard on the part of the owner of the prop- 
 erty to be assessed, has the effect to deprive him of his prop- 
 erty without due process of law, and is unconstitutional. The 
 legislature may prescribe the kind of notice, and the mode in 
 which it may be given, but it cannot dispense with all notice. 
 It is not enough that the owner may by chance have notice, 
 or that he may, as a matter of favor, have a hearing; the law 
 must require notice and give a right to a hearing." Stuart v. 
 Pahner, 74 N. Y. 184. "The notice need not be personal, as it 
 may be by general statute which is notice to all, but it must 
 afford a reasonable opportunity to make complaint. It must 
 be of such a character that compliance therewith is possible 
 so that the taxpayer may object or protest, even if he has no 
 just ground for doing either." Vann, J., in People ex rel. v. 
 Feitner, 191 N. Y. 97. See also Douglas v. Supervisors, 172 
 N. Y. 314; People ex rel. v. O'Donnel, 183 N. Y. 9. 
 
 (Note.) A statute requiring notice to be given in several newspapers at 
 different times not being carried out regularly, can be cured by subsequent 
 legislation validating the irregularity, and although notice was only pub- 
 lished once, it will be sufficient. Tifft v. City of Buffalo, 82 N. Y. 204; W. I. 
 B. Co. V. Attica, 119 N. Y. 204. 
 
 Q. A commits a crime. After the crime was committed, but 
 before sentence, a law is passed increasing the penalty and pro- 
 viding that it shall apply to "all crimes heretofore as well as 
 hereafter committed." He is sentenced according to this stat- 
 ute, and the case is taken to a higher court on appeal. What 
 should the appellate court do? 
 
 A. The judgment should be reversed, for as to him the law is 
 
100 CONSTITUTIONAL LAW 
 
 ex post facto and therefore void. Ex post facto laws are classi- 
 fied in the leading case of Calder v. Bull, 3 Dallas (U. S.), 386, 
 as follows: "1. Every law which makes an act done before the 
 passing of the law, and which was innocently done, criminal, 
 and punishes such act. 2. Every law that aggravates a crime, 
 or makes it greater than it was when conamitted. 3, Every 
 law that changes the punishment, and inflicts a greater punish- 
 ment than the law annexed to the crime when committed. 4. 
 Every law that alters the legal rules of evidence, and receives 
 less or different testimony than the law required at the com- 
 mission of the crime, in order to convict the offender." "That 
 is an ex post facto law, which increases the punishment de- 
 nounced against the act when committed, or punishes an of- 
 fense in a manner in which it was not punishable when com- 
 mitted, irrespective of its comparative severity, unless the new 
 punishment is one of the same in kind as the old but less in de- 
 gree." Hartung v. People, 22 N. Y. 95; Shepard v. People, 
 25 N. Y. 406. A statute which permits the infliction of a lesser 
 degree of the same kind of punishment than was permissible 
 when the offense was committed is not ex post facto. People v. 
 Hayes, 140 N. Y. 484. 
 
 Q. A commits crime in May, 1905. The Statute of Limita- 
 tions then for that crime was three years. In May, 1908, the 
 legislature passes an act by which the limitation is extended to 
 five years. In June, 1909, A is arrested for the offense committed 
 May, 1905. You are called upon to advise as to his rights, and 
 as to the constitutionality of the law. What would be your 
 advice? 
 
 A. The law is ex post facto as to A, and therefore unconstitu- 
 tional and void. "A law requiring all indictments to be found 
 and filed within three years after the commission of the offense, 
 by extending the time to five years, does not apply to offenses 
 committed prior to the passage thereof." People v. Lord, 12 
 Hun, 282; People v. O'Neil, 109 N. Y. 251. "A law is never to 
 have retroactive effect unless its express letter or clearly mani- 
 fested intention requires that it should have such effect. If all 
 
CONSTITUTIONAL LAW 101 
 
 its language can be satisfied by giving it prospective operation, 
 it should have such operation only." R. R. Co. v. Van Horn, 
 57 N. Y. 477. 
 
 Q. A and B are husband and wife. The evidence of the wife 
 is inadmissible at the time C sues B on a certain claim. There- 
 after the legislature passes a law, providing that the wife's 
 evidence shall be admissible. C, being informed that the wife 
 has knowledge of certain facts material to his case, the evidence 
 of which would be admissible under the new law, subpcsnas 
 her. Objection is made to the admissibility of the evidence. 
 Is the objection good? 
 
 A. The evidence is admissible, as the law is constitutional. 
 "While the legislature cannot take from persons vested rights 
 without compensation, the remedy by which rights are to be 
 enforced or defended, is within the absolute control of that 
 branch of the government. There is no vested right in a rule 
 of evidence, as such rules only affect the remedy, and it is within 
 the constitutional power of the legislatm-e to modify them, and 
 to enact new rules as to the qualifications and competency of 
 witnesses." Howard v. Moot, 64 N. Y. 262; People v. Turner, 
 117 N. Y. 233. "Due process of law does not mean that the 
 legislature cannot change the rules of evidence as they existed 
 at common law, nor make one a competent witness who was 
 not such at common law." People v. Johnson, 185 N. Y. 229. 
 
 Q. The statute provides that any person who engages in the 
 business or works as a barber on Sunday, shall be deemed to 
 be guilty of a misdemeanor, and on conviction thereof, shall 
 be fined and imprisoned. Your client is a barber who does not 
 believe in Sunday as a religious institution, and who needs the 
 money that the carrjdng on of the business on Simday brings 
 him. He is arrested for violating the statute. Is such a statute 
 valid? If so, upon what principle can it be maintained? 
 
 A. This statute is vaUd as a proper exercise of the poUce 
 power. ' ' The act, which makes it a misdemeanor for any person 
 to carry on or engage in the business or work of a barber on 
 
"v 
 
 102 CONSTITUTIONAL LAW 
 
 Sunday, is a valid exercise of the police power by the legislature, 
 works no deprivation of liberty or property within the mean- 
 ing of the Constitution, and does not violate the Fourteenth 
 Amendment to the Federal Constitution by denying the equal 
 protection of the law." People v. Havnor, 149 N. Y. 195. "All 
 property and all rights within the jurisdiction of the state are 
 subject to the regulations and restraints of its police power, 
 except so far as they are removed therefrom, by the express 
 provisions or implications of the Federal Constitution. The 
 police power may be defined in general terms, as that power 
 which inheres in the legislature to make, ordain and estabUsh 
 all manner of reasonable regulations and laws whereby to pre- 
 serve the peace and order of society, and the safety of its mem- 
 bers, and to prescribe the mode and manner in which everyone 
 may so use and enjoy that which is his own, and not to pre- 
 clude a corresponding use and enjoyment of their own by 
 others." Cooley, Const. Law, p. 338. "The Fourteenth 
 Amendment is held not to have taken from the states the police 
 power reserved to them at the time of the adoption of the 
 Constitution. It does not deprive the states of the right to 
 preserve order within their limits, to pass laws against crimes 
 and punish offenders, to regulate relations between individuals, 
 to control for the public good the use of private property, to 
 protect the health, life, and the safety of the people, and, to that 
 end, not only to enact suitable legislation, but to destroy pri- 
 vate property that is dangerous to the well-being of the state." 
 Cooley, Const. Law, p. 251. See also Colon v. Lisk, 153 N. Y. 
 188. 
 
 Q. The legislature passes an act prohibiting the manu- 
 facture of cigars in any form in tenement houses. A has a 
 store in a tenement house in which he manufactures cigars. 
 He is arrested charged with a violation of this law, and upon 
 the trial he sets up the defense that the law is unconstitutional. 
 What should be the decision of the court and why? 
 
 A. The decision should be that the law is unconstitutional 
 "While generally, it is for the legislature to determine what 
 
CONSTITUTIONAL LAW 103 
 
 laws are required to protect and secure public health, comfort 
 and safety under the guise of police regulation, it may not 
 arbitrarily infringe upon personal or property rights, and its 
 determination what is a proper exercise of the power, is not 
 final or conclusive, but is subject to the scrutiny of the courts. 
 When, therefore, the legislature passes an act ostensibly for the 
 public health, but which does not relate to, and is inappropriate 
 for the purpose, and which destroys the property or interferes 
 with the rights of citizens, it is within the province of the court 
 to determine this fact, and to declare the act violative of the 
 constitutional guaranties of those rights." Matter of Jacobs, 
 
 98 N. Y. 98; People ex rel. v. Murphy, 195 N. Y. 135; People 
 V. N. Y. C. A. Co., 196 N. Y. 435. 
 
 Q. A purchases a lot in Buffalo, intending to erect thereon 
 a building. Before he commences work, the legislature passes 
 a law extending the fire limits, the effect of which is to prohibit 
 A from building anything but a brick or stone house. A, not 
 having the necessary means to build a house of such materials, 
 is prevented from building. Is the law constitutional? 
 
 A. This law is constitutional. This is a legitimate exercise of 
 the police power, because, it has for its purpose the protection 
 of the lives and property of its people, and does not deprive 
 them of property without due process of law. People v. Marx, 
 
 99 N. Y. 386; Tenement House Department v. Moeschen, 179 
 N. Y. 325. 
 
 Q. Is the law making it a crime to sell passage tickets for 
 vessels and railroads, except by common carriers or their duly 
 authorized agents, constitutional? Give reasons in full. 
 
 A. The law is unconstitutional; not being a proper exercise of 
 the pohce power. "Argument is certainly not needed in the 
 light of these decisions to support the assertion that the "lib- 
 erty" of this relator and other citizens of this state to engage in 
 the business of brokerage in passage tickets is sought to be in- 
 terfered with by the statute under consideration, for brokerage 
 in such tickets has been a lawful business in this state for many 
 years, and many persons have pursued it. It is still a lawful 
 
104 CONSTITUTIONAL LAW 
 
 business, although the right to engage in it is limited to such 
 persons as may be appointed by the transportation companies. 
 The statute is, therefore, in contravention of the State Consti- 
 tution, and is void, unless its enactment by the legislature is a 
 valid exercise of the police power. That power is very broad 
 and comprehensive, and has not yet been fully described or its 
 extent plainly limited, but it is exercised to promote the health, 
 comfort, safety and welfare of society. ... It was held that 
 the power, however broad and extensive, is not above the Con- 
 stitution, in obedience to the commands of which the courts 
 will protect the rights of individuals from invasion under the 
 guise of police regulation, and while it is the general province 
 of the legislature to determine what laws are needed to protect 
 the public health, comfort and safety, courts must be able to 
 say upon a perusal of the enactment, that there is some fair and 
 reasonable connection between it and the ends above men- 
 tioned. Unless such relation exists, an enactment cannot be 
 upheld as an exercise of the police power." Parker, Ch. J., in 
 People ex rel. TyroUer v. Warden of Prison, 157 N. Y. 116. 
 
 Q. The legislature passes a law prohibiting any employer 
 upon the hiring of help to make it conditional that the employee 
 shall not join or become a member of any labor organization. 
 What do you say as to the constitutionality of this act? 
 
 A. The law is unconstitutional and void. "An enactment 
 that a person shall not make the employment or the continuance 
 of an employment of a person conditional upon the employee 
 not joining or becoming a member of a labor organization, is an 
 unauthorized restraint upon the freedom to contract in relation 
 to the purchase and sale of labor and is unconstitutional. The 
 free and untrammelled right to contract is a part of the liberty 
 guaranteed to every citizen by the Federal and State Consti- 
 tutions. Personal liberty is always subject to restraint when 
 its exercise affects the safety, health or moral and general wel- 
 fare of the pubhc, but subject to such restraint an employer 
 and employee may make and enforce such contracts as they 
 may agree upon." People v. Marcus, 185 N. Y. 258. 
 
CONSTITUTIONAL LAW 105 
 
 Q. A is anxious to obtain a right of way through B's land, 
 and offers to purchase it from him (B), but B refuses to sell it. 
 A procures the passage of an act by the legislature, which by 
 its terms compels B to sell the right of way to A. B attacks the 
 constitutionaUty of the law in the courts. What should the 
 decision be? 
 
 A. The decision must be that the law is unconstitutional. 
 "The statute authorizing a private road to be laid out over the 
 lands of a person without his consent is unconstitutional and 
 void. The legislature can exercise the right of eminent domain 
 for pubUc purposes only. Private property cannot be taken 
 even for a public use without making just compensation to the 
 owner." Taylor v. Porter, 4 Hill, 140; Waterloo Mfg. Co. v. 
 Shanahan, 128 N. Y. 345; Matter of Mayor, etc., 135 N, Y. 
 253. 
 
 Q. The city under the right of eminent domain was author- 
 ized by statute to condemn and take certain lands for public 
 use as a reservoir, with the right to take immediate possession. 
 Sufficient moneys were appropriated for the payment of the 
 lands to the owners as soon as the value of the lands so taken 
 was ascertained. The constitutionality of this law is attacked. 
 What do you say? 
 
 A. The law is constitutional. "While payment need not 
 precede the taking, the provision for compensation must not 
 only pre-exist, but it must be so definite and certain as to leave 
 nothing open to litigation, except the title to the property 
 taken and the amount of damages which the owner may re- 
 cover." Litchfield v. Bond, 186 N. Y. 74. 
 
 Q. A railroad corporation is authorized by the railroad 
 law to condemn private property for the purposes of its in- 
 corporation. The railroad seeks to condemn property be- 
 longing to A, so that it may build a storage warehouse thereon, 
 in which the goods of its shippers along its road may be kept 
 until a favorable market for their sale exists. A brings action 
 to restrain this. Can the action be maintained? 
 
106 CONSTITUTIONAL LAW 
 
 A. A can restrain the threatened act. "The acquisition of 
 lands for speculation of sales, or to prevent interference by 
 competing lines, or methods of transportation, or in aid of col- 
 lateral enterprises, remotely connected with the running or 
 operating of the road, although they may increase its revenue 
 and business, are not such purposes as authorize the con- 
 demnation of private property therefor, and is unconstitu- 
 tional." R. R. Co. V. Davis, 43 N. Y. 137. 
 
 (Note.) "The eminent domain may be defined as the lawful authority 
 which exists in every sovereignty to control and regulate those rights of a 
 public nature, which pertains to its citizens, and to appropriate and control 
 individual property for the public benefit, as the public safety, necessity, 
 convenience or welfare may demand.'' Cooley, Const. Law, p. 363. 
 
 Q. A railroad company having a station in a certain city, 
 finds it necessary because of the increase of business, to have 
 a larger station. It owns no land itself, and the property 
 owners will not sell. The railroad company consults you. 
 What would you advise? 
 
 A. The railroad company can institute condemnation pro- 
 ceedings to obtain the land necessary for its station. "Passen- 
 ger depots, convenient and proper places for the storing and 
 keeping of cars and locomotives, proper, secure and convenient 
 places for the receipt and delivery of freight, are among the 
 acknowledged necessities for the running and operating of a 
 railroad; and the right to take land for these purposes, is in- 
 cluded in the grant of power whch authorizes railroad cor- 
 porations to acquire real property for the purposes of their in- 
 corporation or for the purpose of running and operating their 
 road." R. R. Co. v. Kip, 46 N. Y. 546; Matter of N. Y. C. 
 R. R. Co., 77 N. Y. 261; Matter of R. T. Co., 103 N. Y. 258. 
 
 (Note.) One railroad corporation cannot condemn property of another 
 railroad corporation without express legislative enactment, nor can a rail- 
 road corporation condemn public property for the use of its incorporation, 
 unless by express enactment or by necessary implication. A railroad cor- 
 poration can, under the power of eminent domain, condemn property of a 
 private corporation. See Matter of Boston & Albany R. R. Co., 53 N. Y. 
 574; Matter of Petition of N. Y. L. &. W. R. R. Co., 99 N. Y. 12. 
 
CONSTITUTIONAL LAW 107 
 
 Q. The New York State Constitution provides that the 
 legislature shall not incorporate any corporation by special 
 act, except for municipal purposes or when, in its judgment, its 
 objects cannot be carried out under the general law. The 
 legislature passes a law, incorporating a certain company for 
 purposes not municipal. Can that act of the legislature be 
 reviewed? 
 
 A. No. "By the Constitution of this state it is declared 
 that corporations may be formed under general laws, and 
 shall not be created by special act, except in cases where in 
 the judgment of the legislature the objects of the corporation 
 cannot be attained under the general laws. By this provision 
 of the Constitution, it is left to the legislature to decide whether 
 the objects of the corporation can be attained under a general 
 law. It is well settled in this state, that whether a special act 
 of incorporation is necessary or not, is a matter in the discre- 
 tion of the legislature, and the courts have no power to review 
 this action of the legislature." People v, Bowen, 21 N. Y, 517; 
 Met. Bank v. Van Dyck, 27 N. Y. 448. 
 
 Q. A right of action was vested. At that time there was a 
 statute of limitation of five years. Four years passed before 
 the action was brought. Previously, however, a law was 
 passed changing the limitation to four years, thus barring 
 the plaintiff's right of action. Is the law vahd as against 
 plaintiff? What is the principle involved? 
 
 A. The law is void as against plaintiff, being unconstitu- 
 tional. An enactment of a new statute of limitation is un- 
 constitutional as to existing causes of action, if it fails to allow 
 a reasonable time, after it takes effect, for the commencement 
 of suits thereon. It is not enough that the act affords a reason- 
 able interval between its passage or becoming a law, and its 
 taking effect. "The right possessed by a person of enforcing 
 his claim against another is property, and if a statute of limi- 
 tation acting upon the right, deprives the claimant of a rea- 
 sonable time within which suit may be brought, it violates the 
 
108 CONSTITUTIONAL LAW 
 
 constitutional provision "that no person can be deprived of 
 property without due process of law." There is no question 
 as to the power of the legislature to pass, or to shorten statutes 
 of limitations. A party has no more a vested interest in the 
 time for the commencement of an action than he has in the 
 form of the action. The only restriction upon the legislature 
 in the enactment of statutes of limitations, is that a reasonable 
 time be allowed for suits upon causes of action theretofore 
 existing." Gray, J., in Gilbert v. Ackerman, 159 N. Y. 118. 
 See also People v. Turner, 117 N. Y. 227. 
 
 Q. A was elected to the office of district attorney of X county, 
 the term of office then being two years. Subsequently the 
 legislature passes an act extending his term to four years. 
 This is attacked as unconstitutional. What should be the 
 decision of the court? 
 
 A. The law is unconstitutional and void. An incumbent's 
 term of office cannot be prolonged by the legislature where 
 the office can only be filled by election or appointment, for 
 this would be in effect an appointment by the legislature, and 
 therefore void. People ex rel. Palmer, 154 N. Y. 133; Matter of 
 Kelly V. Van Wyck, 35 Misc. 210. 
 
 Q. A was elected to a public office which had certain fees 
 attached to it by law. He qualifies and enters upon the duties 
 of his office. Subsequently, the legislature passes an act re- 
 ducing his fees. What are A's rights? Is the law constitu- 
 tional? 
 
 A. The law is unconstitutional. It violates the prohibition 
 contained in art. 3, sec. 18, of the New York Constitution, 
 which is as follows: "The legislature shall not pass a private 
 or local bill in any of the following cases: Creating, increasing 
 or decreasing fees, percentage or allowance of public officers 
 who are elected or appointed." 
 
 Q. The legislature passes an act changing the name of 
 John Brown to Thomas Smith. John Brown objects and 
 
CONSTITUTIONAL LAW 109 
 
 consults you as to his rights. What would you advise him? 
 Is the act constitutional? 
 
 A. The act is unconstitutional and void. Article 3, sec. 18, 
 of the New York Constitution provides in part as follows: 
 "The legislature shall not pass a private or local bill. Chang- 
 ing the names of persons." 
 
 Q. The legislature passes an act, authorizing a street rail- 
 road company to lay its tracks along certain streets without 
 any further proceedings. The property owners along the 
 street object. Have they any remedy? Give your opinion as 
 to this legislation. 
 
 A. The act is unconstitutional and void. The abutting 
 owners can enjoin the laying of the tracks, and the operation 
 of the road, being an act in violation of the Constitution, art. 3, 
 sec. 18, which provides in part as follows: "But no law shall 
 authorize the construction or operation of a street railroad, 
 except upon condition that the consent of the owners of one- 
 half in value of the property bounded on, and the consent also 
 of the local authorities having control of that portion of the 
 street or highway, upon which it is proposed to construct or 
 operate such railroad, be first obtained, or in case the consent 
 of such property owners cannot be obtained, the Appellate 
 Division of the Supreme Court of the department in which 
 it is proposed to be constructed, may upon application, appoint 
 three commissioners, who shall determine after a hearing of all 
 the parties interested, whether such railroad ought to be con- 
 structed or operated, and their determination confirmed by 
 the court, may be taken in lieu of the consent of the property 
 
 Q. A railroad corporation desired to operate its road through 
 the streets of X, and was unable to obtain the property owners' 
 consent. Subsequently the corporation applies to the appellate 
 division for the appointment of commissioners, who decide 
 that the company cannot operate its road through the streets 
 of X. The appellate division confirms the report of the com- 
 
110 CONSTITUTIONAL LAW 
 
 missioners. Thereafter the legislature passes a special act, 
 giving to the company the right to operate its road through 
 the streets of X. Is the law constitutional? 
 
 A. The law is unconstitutional and void. The commis- 
 sioners having decided against the operation of the road, the 
 case stands the same as if no application was made, therefore 
 the act, attempting to give the right to lay down the tracks 
 without the property owners' consent is in contravention of 
 art. 3, sec. 18, of the New York Constitution, supra, and void. 
 
 Q. The legislature passes an act, limiting the amount of 
 damages recoverable for injuries resulting in death to $10,000. 
 Is this act constitutional? 
 
 A. This act is clearly unconstitutional, being in contra- 
 vention of art. 1, sec. 18, of the New York Constitution, which 
 is as follows: "The right of action now existing to recover 
 damages for injuries resulting in death, shall never be abro- 
 gated; and the amount recoverable shall not be subject to 
 any statutory limitation." 
 
 Q. A law is passed discontinuing a highway, and provision 
 is made for the allowance of a claim for the maintenance of 
 said highway. What do you say as to the validity of this act? 
 
 A. This law is unconstitutional and void on the following 
 grounds: 1. Being a private or local bill, and embracing more 
 than one subject. Section 16 of art. 3 of the New York Con- 
 stitution. 2. It is a private or local bill discontinuing a high- 
 way. Article 3, sec. 18, of the New York Constitution. 3. It 
 permits a private claim against the state. Article 3, sec. 19, 
 of the New York Constitution; People ex rel. Corscadden v. 
 Howe, 177 N. Y. 499. 
 
 Q. The legislature passes an act exempting A's property 
 from taxation in the county of Queens, for the reason that he 
 (A) was very charitable and public-spirited. Question arises 
 as to the validity of this act. What do you say? 
 
CONSTITUTIONAL LAW 111 
 
 A. The law is unconstitutional and void, being in contra- 
 vention of art. 3, sec. 18, of the New York Constitution, which 
 in part is as follows: "Granting to any person, association, 
 firm or corporation, an exemption from taxation on real or 
 personal property." 
 
 Q. A was charged with the commission of a criminal offense 
 in a certain county of this state, was indicted, tried and ac- 
 quitted. Subsequently, it was claimed that the offense for 
 which he had been tried was really committed in an adjoining 
 county, and he was indicted, tried and convicted in that county 
 for the same offense. During the second trial, the district 
 attorney put him upon the witness stand against the objection 
 of his counsel, and he was compelled to testify that he was 
 present at the time and place at which the offense was com- 
 mitted. A appeals from the conviction. Is the appeal well 
 taken? State your reasons. 
 
 A. The appeal is well taken and the judgment must be re- 
 versed. The second trial was in violation of the constitutional 
 provision, "that no person shall be subject for the same offense 
 to be twice put in jeopardy of life or limb." An acquittal is a 
 bar to any subsequent trial for the same offense. Section 140 
 of the Code of Crim. Pro. covers this point and is as follows: 
 "When a crime is within the jurisdiction of two or more counties 
 of this state, a conviction or acquittal thereof in one county 
 is a bar to a prosecution or indictment thereof in another." 
 Section 9 of the Code of Crim. Pro. provides: "No person can 
 be subjected to a second prosecution for a crime for which he 
 has once been prosecuted or acquitted." As to the other point, 
 it was a violation of the constitutional provision: "That no 
 person can be compelled in a criminal action to be a witness 
 against himself." This provision is also found in sec. 10 of 
 the Code of Crim. Pro. 
 
 Q. A is indicted for murder in the first degree. He is put 
 on trial and convicted of murder in the second degree. He 
 appeals from the conviction, and the appellate court grants 
 him a new trial. He is subsequently put on trial for murder 
 
112 CONSTITUTIONAL LAW 
 
 in the first degree, and objects, claiming that he cannot again 
 be tried for murder in the first degree. Was this objection 
 good? 
 
 A. No. "Where a defendant is convicted of a lower degree 
 of the crime charged in the indictment, and on appeal, judg- 
 ment is reversed and a new trial ordered, the case stands as if 
 there had been no trial, and the defendant must be tried under 
 the indictment as it is, not simply for the lesser grade of crime 
 of which he was convicted. This is not unconstitutional as 
 subjecting a person to be twice put in jeopardy for the same 
 offense, as the jeopardy is incurred with the consent of, and as a 
 privilege granted to the defendant upon his own application." 
 People V. Palmer, 109 N. Y. 413. 
 
 (Note.) It must be observed that before the enactment of the Code of 
 Grim. Pro., sees. 464, 544, a conviction of a lesser degree of crime amounted 
 to an acquittal of the higher degree, and the defendant could not again be 
 tried for the higher degree of crime. People v. Dowling, 84 N. Y. 478. The 
 granting of a new trial places the parties in the same position as if no trial 
 had taken place. It seems, however, that by the language of Gray, J., in 
 People V. Palmer, supra, that where the indictment charges different crimes, 
 a conviction of one will act as an acquittal of the others. He says: "The 
 provisions of the statute are clear and explicit, in nowise contravene the 
 letter or spirit of the fundamental law, and their meaning should not be per- 
 verted. It would be a grievous miscarriage of justice, and the intent of the 
 law would be thwarted, if it should be held that a reversal upon a prisoner's 
 appeal for errors of law upon his trial, had the effect of putting it out of the 
 power of the people to further try him under the indictment, when his guilt 
 might be competently established. We do not think that such is the result. 
 The effect of the defendant's appeal is merely to continue the trial under 
 the indictment in the appellate court; and if reversal of the judgment of 
 conviction follows, the judgment, as well as the record of the former trial, 
 have been annulled and expunged by the judgment of the appellate court, 
 and they are as though they never have been; while the indictment is left 
 to stand as to the crime, of which the prisoner has been charged and con- 
 victed, as though there had been no trial. Only where the result of the 
 former trial was, in effect, an acquittal of another crime charged in the in- 
 dictment may he plead that result in bar of further prosecution for that 
 crime." See People v. Cignarale, 110 N. Y. 30; People v. Wheeler, 79 App. 
 Div. 396. 
 
 Q. A is indicted for murder in the first degree. During the 
 
CONSTITUTIONAL LAW 113 
 
 course of the trial, one of the jurors becomes ill and is anable to 
 attend. A's counsel consents to proceed with eleven jurors. 
 A is convicted. He appeals. What should be the decision 
 of the higher court? 
 
 A. The conviction is illegal and unconstitutional, and must 
 be set aside. In criminal cases, at least in cases of felony, the 
 accused cannot waive the right of trial by jury. By jury is 
 meant in the constitution a common-law jury. This is a tribu- 
 nal of twelve persons. The jury cannot consist of less than 
 twelve, and a trial by less than that number even by consent, 
 is a mistrial. If a defendant were allowed to waive his right 
 of a trial by twelve jurors, he might also be allowed to waive 
 his right of a trial by jury, which would in fact be a depriva- 
 tion of life or liberty without due processes of law. Cancemi v. 
 People, 18 N. Y. 128; People v. Dohring, 59 N. Y. 374. 
 
 Q. A is being tried for murder. The jury is taken to inspect 
 the scene of the crime without A bring present, he having re- 
 fused to go along. He is convicted and appeals on the ground 
 that testimony was taken without his presence. What should 
 be the decision on appeal? 
 
 A. The judgment of conviction should be affirmed. "The 
 view by the jury during the trial, as provided by sec. 411 of 
 the Code of Crim. Pro., of the place in which the crime is 
 charged to have been committed, is not a part of the trial, or 
 the taking of testimony, within the contemplation of the Con- 
 stitution, and the Bill of Rights, and the right of the defendant 
 to be present thereat, may be waived even in a capital case." 
 People V. Thorn, 156 N. Y. 286. 
 
 Q. Your client is arrested charged with a crime; he is in jail 
 awaiting the action of the grand jury. The sheriff refuses to 
 permit you to have an interview with him. What would you 
 do? 
 
 A. The Constitution guarantees everyone charged with crime 
 the right of counsel; therefore you can apply for a writ of man- 
 damus to compel the sheriff to allow you an interview. A per- 
 8 
 
114 CONSTITtTTtONAL LAW 
 
 son charged with crune is entitled to have counsel, even though 
 an indictment is not found. People ex rel. Burgess v. Risely, 
 13 Abb. (N. C.) 186. 
 
 Q. A is being tried for robbery. He is compelled against his 
 counsel's objection to stand up in court and be identified. He 
 is convicted and appeals upon the ground that he was com- 
 pelled to give evidence against himself. Should the appeal be 
 sustained? 
 
 A. The appeal should be dismissed. "A witness under ex- 
 amination, or one present in court as a party, may be compelled 
 by the court to stand up to be identified. This is not a viola- 
 tion of the constitutional provision, protecting a person from 
 being compelled in a criminal case to be a witness against him- 
 self." People V. Gardner, 144 N. Y. 119. 
 
 Q. A is the owner of a large tract of land in Orange county. 
 He leases it to B for agricultiu-al purposes for a period of fifteen 
 years. Question arises as to the validity of the lease. What 
 do you say? 
 
 A. The lease is void, being in contravention of sec. 13, art. 1, 
 of the New York Constitution, which is as follows: "No lease 
 or grant of agricultural land, for a longer period than twelve 
 years, hereafter made, in which shall be reserved any rent or 
 service of any kind, shall be vahd." 
 
 Q. A, who is the owner of a large tract of land in Erie county, 
 leases the same to B for the purpose of extracting the mineral 
 ore that may be found thereon. The lease is for a period of 
 twenty years and A is to use such portions of the land for farming 
 purposes until B should elect to use the same for mining piu:- 
 poses. The lease to B is attacked as being unconstitutional. 
 What do you say? 
 
 A. The lease is constitutional being made for mining pur- 
 poses. "The constitutional provision against leasing argicul- 
 tural land for a longer period than twelve years, is not violated 
 
CONSTITUTIONAL LAW 115 
 
 by a lease for twenty years of all the iron ore contained in, on 
 or under of a farm, with the right to enter upon the lands and 
 excavate and carry away the ore, etc., where the lessee is ex- 
 pressly prohibited from permitting any business to be done 
 upon the premises other than the business of mining while the 
 lessor has the right to use such portions of the siu-face for farm- 
 ing purposes as he chooses, until the lessee elects to use the 
 same for his mining operations." Mass. Nat. Bank v. Shim, 
 163 N. Y. 360. 
 
 Q. The legislature passes an act in relation to plumbing 
 establishments, which by its provisions are oppressive and 
 against the constitutional rights of said establishments. A, a 
 banker, brought an action to restrain the enforcement of the 
 said act. Can he do so? 
 
 A. He cannot maintain the action, as the act does not affect 
 him. He cannot be injured by the enforcement of the said act. 
 See Bank v. Craig, 181 U. S. 548. 
 
 Q. A, who was a Civil War veteran and who was honorably 
 discharged from the United States Army, was appointed to a 
 position in the comptroller's office without taking an examina- 
 tion under the civil service, although the said office was on the 
 civil service list. The appointment is attacked as being un- 
 constitutional. What do you say? 
 
 A. The appointment is unconstitutional and void. While 
 the veteran has a preference in the appointment, he must if 
 the position is in the civil service list, pass an examination. 
 "When a Ust is made up of persons whose merit and fitness 
 have been ascertained according to law, then such honorably dis- 
 charged soldiers and sailors of the CivU War as appear thereon 
 are entitled under the Constitution to preference in appoint- 
 ment and promotion therefrom, but the legislature caimot 
 dispense with the necessity of ascertaining the merit and fitness 
 of all appUcants for employment in the civil service, for the 
 Constitution safeguards the pubUc service against all such 
 attempts." Matter of Stutzbach v. Coler, 168 N. Y. 421. 
 
116 CONSTITUTIONAL LAW 
 
 Q. The legislature passes an act abolishing the office of 
 Police Justice. A, an incumbent of the said office, attacks the 
 constitutionality of the law. What do you say? 
 
 A. The law is constitutional; the office of Police Justice not 
 being a constitutional one, may be abolished by the legislature. 
 Koch V. Mayor, 152 N. Y. 77. "Subject only to the restric- 
 tions of the Constitution, the legislature may do what it thinks 
 best with a public office or a public officer, by abolishing the 
 office." Koch V. Mayor, supra. 
 
 Q. What are the qualifications of voters for officers elected 
 by the people? 
 
 A. Article 2, sec. 1, of N. Y. Constitution answers this ques- 
 tion, and is as follows : ' ' Every male citizen of the age of twenty- 
 one years, who shall have been a citizen for ninety days, and an 
 inhabitant of this state one year next preceding an election, and 
 for the last four months a resident of the county, and for the 
 last thirty days a resident of the election district in which he 
 may offer his vote, shall be entitled to vote at such election in 
 the election district of which he shall at the time be a resident, 
 and not elsewhere, for all officers that now are or hereafter may 
 be elective by the people, and upon all questions which may 
 be submitted to the vote of the people, provided that in time 
 of war no elector in the actual military service of the state, or 
 of the United states, in the army or navy thereof, shall be de- 
 prived of his vote by reason of his absence from such election 
 district; and the legislature shall have power to provide the 
 manner in which and the time and place at which such absent 
 electors may vote, and for the return and canvass of their votes 
 in the election districts in which they respectively reside." 
 
CHAPTER VI 
 
 Contracts 
 
 Q. A writes to B, a carpenter, asking him to make certain 
 office fixtures, and offering to pay a certain price therefor. B 
 did not reply thereto, but purchased the necessary Ivimber and 
 began the work. A thereafter wrote B countermanding the 
 order. After receiving this letter, B brings suit for breach of 
 contract. Can he recover? 
 
 A. No. A's offer was never accepted. "The note did not 
 make an agreement. It was a proposition, and must have 
 been accepted by the plaintiff before either party was bound, 
 in contract, to the other. The only overt action which is 
 claimed by the plaintiff, as indicating on his part an accept- 
 ance of the offer, was the purchase of the stuff necessary for 
 the work, and commencing work, as we understand the testi- 
 mony, upon that stuff. We understand the rule to be, that 
 where an offer is made by one party to another when they are 
 not together, the acceptance of it by that other must be mani- 
 fested by some appropriate act. It does not need that the 
 acceptance shall come to the knowledge of the one making 
 the offer, that he shall be bound. But though the manifesta- 
 tion need not be brought to his knowledge before he becomes 
 bound, he is not bound, if that manifestation is not put in a 
 proper way, to be, in the usual course of events, in some reason- 
 able time communicated to him. In the case in hand, the plain- 
 tiff determined to accept. But a mental determination, not in- 
 dicated by speech, or put in course of indication by act to the 
 other party, is not an acceptance which will bind the other. 
 Nor does an act, which, in itself, is no indication of an ac- 
 ceptance, become such, because accompanied by an unevinced 
 mental determination. Where the act interpreted by con- 
 ciurent evidence of the mental purpose accompanying it, is as 
 
 117 
 
118 CONTRACTS 
 
 well referable to one state of facts as another, it is no indication 
 to the other party, of an acceptance, and does not operate to 
 hold him to his offer. Conceding that the testimony shows 
 that the plaintiff did resolve to accept this offer, he did no act 
 which indicated an acceptance of it, to the defendants. He, a 
 carpenter and builder, purchased stuff for the work. But it 
 was stuff as fit for any other like work. There was nothing in 
 his thought formed but not uttered, or in his acts that indicated 
 or set in motion, an indication to the defendants of his accept- 
 ance of their offer, or which could necessarily result therein." 
 Folger, J., in White v. Corlies, 46 N. Y. 467. 
 
 Q. A wires B that he has a horse, and thinks that he will 
 suit B, describing him, whereupon B writes A that he will take 
 the horse if he "will fill the bill." A immediately telegraphs B, 
 "the horse is yours," and sends the horse to B by his man. B 
 refuses to take the horse, saying that he has bought no horse 
 of A. What are the rights of the parties? Give reasons. 
 
 A, A has no rights against B, as there was no contract. 
 B's reply was not an acceptance of A's offer, nor was it a 
 counter-offer. In order to have a contract, there must be 
 mutual assent of the parties. An offer to sell imposes no obU- 
 gation, until it is accepted according to its terms. Mactier v. 
 Frith, 6 Wend. 103. 
 
 Q. A is an auctioneer, and B is a bidder on a certain prop- 
 erty; the auctioneer says, "one, two, three," but before the 
 hammer falls, B revokes his bid. The auctioneer said, "Sold 
 to B for so much." What are the rights of the parties? 
 
 A. There was no contract, as the offer was withdrawn before 
 acceptance. The auctioneer is the agent of the vendor, and 
 the assent of both parties is necessary to make the contract 
 binding; that is signified on the part of the seller by knocking 
 down the hammer, which was not done here till the bidder 
 had retracted. Every bidding is nothing more than an offer on 
 one side, which is not binding on either side till it is assented 
 to. This principle has been firmly established since the early 
 
CONTRACTS 119 
 
 and leading English case of Payne v. Cave, 3 Term Rep. 148, 
 and unifonnly followed in this state. Tuttle v. Love, 7 Johns. 
 470; Tucker v. Woods, 12 Johns. 190; Smyth v. Greacen, 100 
 App. Div. 275. 
 
 Q. Defendant wrote to plaintiff offering to sell a horse for 
 $200. Plaintiff answered that he would reply in five days. 
 As he is about to mail letter, he receives a telegram with- 
 drawing the offer. He reads the telegram and mails the ac- 
 ceptance of the offer. What are the rights of the parties? 
 
 A. Plaintiff cannot recover as there was no contract, as 
 the offer was withdrawn before acceptance. The receipt of 
 the telegram operated as a revocation of the offer, and there- 
 fore, the attempted acceptance was of no avail, as there was 
 no offer in existence at the time capable of being accepted. 
 The revocation of an offer, to be effective, must always be 
 communicated to the offeree. An offer cannot be withdrawn, 
 unless the withdrawal reaches the party to whom it is ad- 
 dressed before the letter of reply announcing the acceptance 
 has been mailed. Tayloe v. Ins. Co., 9 How. (U. S.) 400. 
 "When an offer is made and accepted by the posting of a letter 
 of acceptance before notice of withdrawal is received, the 
 contract is not impaired by the fact that a revocation had 
 been mailed before the letter of acceptance." Patrick v. 
 Bowman, 149 U. S. 411. 
 
 Q. A in New York writes B in California making a proposi- 
 tion of contract. Upon receipt of the letter, B mails an answer 
 accepting his proposition; next day B telegraphs A rejecting 
 the offer, telegram and letter reaching A at the same time. 
 What are the rights of the parties? 
 
 A. B is liable, as there is a contract here, which arose upon 
 the mailing of the letter of acceptance, irrespective of the time 
 when the letter was received. An acceptance once given can- 
 not be withdrawn, and therefore the telegram retracting the 
 acceptance has no effect. "Where two parties, both being 
 present together, enter into negotiations looking to the making 
 
120 CONTKACTS 
 
 of a contract, the minds of both must ordinarily meet at the same 
 time, upon the same identical terms, or no contract is made. 
 Where the parties reside at a distance from each other, and the 
 negotiations are conducted by written correspondence, though 
 there must be the assent of both parties to the same provisions, 
 it is of course impracticable that such assent be manifested 
 simultaneously. One must state what he is willing to agree to, 
 and the other must, when the proposition has reached him, 
 assent to the same terms, and in some manner manifest that 
 assent." Selden, J., in Vassar v. Camp. 11 N. Y. 441. "It 
 is only necessary that there should be a concurrence of the 
 minds of the parties upon a distinct proposition, manifested 
 by an overt act, and the sending of a letter, announcing the 
 consent to the proposal, was a sufficient manifestation, and 
 consummated the contract from the time it was sent. The 
 sending of the letter accepting the proposition is regarded as an 
 acceptance, because it is an overt act clearly manifesting the 
 intention of the party sending it, to close with the offer of 
 htm to whom it is sent, and thus making that 'aggregatio 
 mentium' which is necessary to constitute a contract." Scrug- 
 ham, J., in Trevor v. Wood, 36 N. Y. 307. "The minds of 
 the parties met, when the plaintiff comphed with the usual, 
 or even occasional practice, and left the acceptance in a place 
 of deposit recognized as such by the defendant. The doctrine 
 is analogous to that which has been adopted in the case of 
 cpmmunication by letter or telegram. The principle governing 
 these cases is, that there is a concurrence of the minds of the 
 parties upon a distinct proposition, manifested by an overt 
 act." Dwight, C, in Howard v. Daly, 61 N. Y. 362. 
 
 Q. A wrote B, offering to sell the latter 100 barrels of flour 
 at $10 per barrel, and gave the latter ten days in which to 
 accept or reject the proposition. On the third day thereafter, 
 A sold the flour to C, and B on the fourth day, without notice, 
 wrote A accepting the offer. B, on learning of the sale, brings 
 suit against A. Judgment for whom and why? Suppose B 
 had notice of the sale before accepting the offer, how would 
 this affect your answer? 
 
CONTRACTS 121 
 
 A. Judgment for B, but if he had notice of the sale, no re- 
 covery would be allowed. While in general, a revocation of an 
 offer to be effective, must be communicated to the offeree by 
 the offeror, yet it is held that any act of the offeror, inconsistent 
 with the continuance of the offer, such as a sale of the property 
 to some other person, or any other overt act clearly showing 
 an intention to revoke, and which comes to the knowledge 
 of the offeree, constitutes a revocation. B here accepted before 
 the offer was withdrawn, and therefore can recover. But of 
 course, if he obtained information of the sale to C before ac- 
 cepting, his acceptance would be of no effect. Chicago Co. v. 
 Dane, 43 N. Y. 240. 
 
 Q. A sent an order for 100 barrels of flour to B on twenty 
 days' credit, A agreeing to pay the freight. B, not having 100 
 barrels in stock, and having only 99 barrels, sent them to A on 
 ten days' credit. This time of credit had always been custom- 
 ary with B, and A knew of it. B sent a bUl to A for 99 barrels 
 on ten days' credit. The goods were destroyed in transit. Who 
 must bear the loss? 
 
 A. The loss falls upon B, as there was no contract. If a 
 person sends an order to a merchant to send a particular quan- 
 tity of goods upon certain terms of credit, and the merchant 
 sends a less quantity of goods at a shorter credit, and the goods 
 sent are lost on the way, the merchant must bear the loss, as 
 there is no contract between the parties. There is no agree- 
 ment, no meeting of the minds of the parties as to the subject- 
 matter of the contract. Bruce v. Pearson, 3 Johns. 534. 
 
 (Note.) "As no contract is complete without the mutual assent of the 
 parties, an offer to sell imposes no obhgation until it is accepted according 
 to its terms. So long as the offer has neither been accepted nor rejected 
 the negotiation remains open, and imposes no obligation on either party; 
 the one may decline to accept, or the other may withdraw the offer, and 
 either rejection or withdrawal leaves the matter as if no offer had been made. 
 A proposal to accept, or an acceptance, upon terms varying from those 
 offered, is a rejection of the offer, and puts an end to the negotiation, unless 
 the party who made the original offer renews it, or assents to the modifica- 
 tions suggested. The other party having once rejected the offer cannot 
 
122 CONTEACTS 
 
 afterward revive it by an acceptance of it." Gray, J., in R. R. Co. v. Mill 
 Co., 119 U. S. 149; Hough v. Brown, 19 N. Y. Ill; Briggs v. Sizer, 30 N. Y. 
 647. 
 
 Q. A lost certain property and offers $500 to the finder as a 
 reward. B, knowing nothing of the reward, finds the property 
 and returns it to A. B afterwards learns of the reward, and 
 brings an action against A for the same. Judgment for whom? 
 
 A. Judgment for A. "To the existence of a contract there 
 must be mutual assent, or in another form, offer and consent 
 to the offer. The motive inducing consent may be immaterial, 
 but the consent is vital. Without that there is no contract. 
 How then can there be consent or assent to that of which the 
 party has never heard? But the plaintiffs did not, in giving 
 that information, manifest any assent to the defendant's offer, 
 nor act in any sense in reliance thereon, they did not know of 
 its existence. The information was voluntary, and in every 
 sense (material to this case) gratuitous. The offer could only 
 operate upon the plaintiffs after they heard of it." Woodruff, 
 J., in Fitch v. Snedaker, 38 N. Y. 248. To entitle a person 
 to a reward offered for the recovery, or for information lead- 
 ing to the recovery of property lost, he must show a rendition 
 of the services required after a knowledge of, and with a view 
 of obtaining the offered reward. Howland v. Lounds, 51 N. Y. 
 604; Atwood v. Armstrong, 102 App. Div. 601. 
 
 Q. On May 1st, W advertises in the Herald a reward of 
 $1,000 to any person who captures or gives information lead- 
 ing to the apprehension of a certain thief. On May 3d, 
 A publishes in the same paper a revocation of his offer. On 
 May 4th, B succeeds in apprehending the thief. He now claims 
 the reward, and brings suit to recover the sum offered. Can he 
 recover? State your reasons. 
 
 A. B cannot recover, as the offer was withdrawn before the 
 act asked for was performed. An offer may always be with- 
 drawn before it is accepted, through the same source and in 
 the same manner in which it was made. " It is not to be doubted 
 
CONTEACTS 123 
 
 that the offer was revocable at any time before it was accepted, 
 and before anything was done in rehance upon it. There was 
 no contract until its terms were complied with. Like any other 
 offer of a contract, it might, therefore, be withdrawn before 
 rights had accrued under it; and it was withdrawn through 
 the same channels in which it was made. The same notoriety 
 was given to the revocation that was given to the offer; and 
 the findings of fact do not show that any information was given 
 by the claimant, or that he did anything to entitle him to the 
 reward offered, until five months after the offer had been with- 
 drawn. True, it is found that then, and at all times until the 
 arrest was actually made, he was ignorant of the withdrawal; 
 but that is an immaterial fact. The offer of the reward not 
 having been made to him directly, but by means of a published 
 proclamation, he should have known that it could be revoked 
 in the manner in which it was made." Strong, J., ia Shuey 
 v. U. S., 92 U. S. 73. 
 
 Q. A, the uncle of B, promised his nephew that if he would 
 refrain from drinking, using tobacco, swearing and play- 
 ing cards or billiards for money until he became twenty-one 
 years of age, he would pay him the sum of $5,000. The nephew 
 assented thereto, and fully performed the conditions inducing 
 the promise. When the nephew arrived at the age of 21 years, 
 he demanded the money which was refused. He brings suit. 
 The uncle demurs on the ground that the contract was without 
 consideration to support it, and therefore invalid. Judgment 
 for whom and why? 
 
 A. Judgment for B, the nephew. Refraining from drinkiag, 
 using tobacco, etc., was the giving up of a legal right, and there- 
 fore constituted a sufficient consideration. "A valuable con- 
 sideration in the sense of the law may consist either in some 
 right, interest, profit or benefit accruing to the one party, or 
 some forbearance, detriment, loss or responsibility given, 
 suffered or undertaken by the other. Courts will not ask 
 whether the thing which forms the consideration does in fact 
 benefit the promisee or a thu-d party, or is of any substantial 
 
124 CONTEACTS 
 
 value to anyone. It is enough that something is promised, 
 done, forborne, or suffered by the party to whom the promise 
 is made as consideration for the promise made to him. ' ' Anson's 
 Prin. of Contracts, 63. "In general, a waiver of any legal 
 right at the request of another party, is a sufficient consider- 
 ation for a promise." Parsons on Contracts, 444. "Now 
 applying this rule to the facts before us, the promisee used to- 
 bacco, occasionally drank Uquor, and he had a legal right to do 
 so. That right he abandoned for a period of years upon the 
 strength of the promise of the testator that for such forbearance 
 he would give him $5,000. It is sufficient that he restricted 
 his legal freedom of action within certain prescribed limits upon 
 the faith of the uncle's agreement, and now having fully per- 
 formed the conditions imposed, it is of no moment whether 
 such performance actually proved a benefit to the promisor, 
 and the court will not inquire into it; but were it a proper sub- 
 ject of inquiry, we see nothing in this record that would permit 
 a determination that the uncle was not benefited in a legal 
 sense." Parker, J., in Hamer v. Sidway, 124 N. Y. 538. 
 
 Q. Sailors are hired for a certain voyage for $100; in the 
 midst of a storm, the sailors refuse to navigate the ship unless 
 the captain agrees to pay them $150. The captain has author- 
 ity to biad the owner; he submits to their demands, but when 
 he reaches shore, the owners refuse to pay but $100; one of the 
 sailors sues for f 150. Can he recover and why? 
 
 A. No. The agreement is void for want of consideration. 
 There was no consideration for the pay promised to the sailors 
 who remained with the ship. Before they sailed, they had 
 undertaken to do all they could under all the emergencies of 
 the voyage. They had sold all their services till the voyage 
 should be completed. They were bound by the terms of their 
 original contract to exert themselves to the utmost to bring 
 the ship in safety to her destined port. "The promise to give 
 higher wages is void for want of consideration. The seamen 
 had no right to abandon the ship at Beaufort, and a prom,ise 
 to pay them an extra price for abstaining from doing an illegal 
 
CONTRACTS 125 
 
 act was a nudum pactum." Spencer, J., in Bartlett v. Wyman, 
 14 Johns. 260. A promise by one to do that which he is under 
 a legal obligation to do, will not constitute a consideration 
 to support a contract. Carpenter v. Taylor, 164 N. Y. 177. 
 
 Q. A is indebted to B in the sum of $1,000. B agrees that 
 if A will pay him $750 he will receipt him in full. A pays the 
 money, but B refuses to give the receipt, and sues A for the 
 balance of $250. Can he recover? 
 
 A. Yes. There was no consideration for B's promise to give 
 the receipt, as B was already legally bound to pay the entire 
 sum. In order to have consideration, there must be the waiver 
 of a legal right; doing what one is already legally bound to do 
 can constitute no consideration. Wherever as here, the claim 
 is liquidated, the mere acceptance of a part with a promise 
 to discharge the whole is not enough, for there is no new con- 
 sideration. Bunge V. Koope, 48 N. Y. 225; Komp v. Ray- 
 mond, 175 N. Y. 102; Sarve v. Dairy Co., 180 N. Y. 371. 
 
 Q. A owed B $1,000. B agreed to give A a receipt in full if 
 A would pay $800. A paid the sum and received a receipt 
 in full. Thereafter B sued A for $200. Can he recover? Give 
 reasons. 
 
 A. Yes. There was no consideration for the giving of the 
 receipt, as A only paid what he was legally bound to pay. 
 Where upon payment of a portion on an undisputed amount, the 
 creditor gives a receipt in full, he is not concluded thereby 
 from recovering the balance, although the receipt was given 
 with knowledge and there was no error or fraud. Ryan v. 
 Ward, 48 N. Y. 204; Kromer v. Heim, 75 N. Y, 574; Bandman 
 v. Finn, 185 N. Y. 519. 
 
 Q. A, a physician, sent B a bill for $500 for professional 
 services. There had been no agreement as to the price to be 
 paid. B, on receiving the bill, sent a letter to A, not disputing 
 the services, but questioning the justice of the charges and 
 inclosing a check for $350, which he stated was in full satis- 
 
126 CONTRACTS 
 
 faction of A's claim. A made no reply, but retained the money. 
 He subsequently sues to recover $150 as balance due. Judg- 
 ment for whom and why? 
 
 A. Judgment for B, as there was an accord and satisfaction 
 of A's claim. Where a debtor offers a certain sum of money, 
 in full satisfaction of an tmliquidated demand, and the cred- 
 itor retains and accepts the money, his claim is cancelled, and 
 no protest, declaration or denial on his part can vary the 
 result. Fuller v. Kemp, 138 N. Y. 231. "An accord and satis- 
 faction requires a new agreement and the performance thereof. 
 It must be an executed contract founded upon a new considera- 
 tion. If the claim is hquidated, the mere acceptance of a part 
 with a promise to discharge the whole is not enough, for there 
 is no new consideration. If the claim is unliquidated, the 
 acceptance of a part, and an agreement to discharge the entire 
 debt furnishes a new consideration which is founded in the 
 compromise. A demand is not hquidated even if it appears 
 that something is due, unless it appears how much is due and 
 when it is admitted that one or two specific sums are due, but 
 there is a genuine dispute as to which is the proper amount, the 
 amount is regarded as unliquidated, within the meaning of that 
 term as applied to the subject of accord and satisfaction. Plain- 
 tiff was either bound to accept the check or by accepting it, to 
 accede to the defendant's terms. The money tendered be- 
 longed to the defendants, and they had a right to say on what 
 conditions it should be received. When plaintiff indorsed 
 and collected the check referred to in the letter asking him to 
 sign the indorsed receipt in full, it was the same in legal effect, 
 as if he had signed and returned the receipt, because accept- 
 ance of a check was a conclusive election to be bound by the 
 condition upon which the check was offered. The use of the 
 check was ipso facto an acceptance of the condition. The 
 minds of the parties then met so as to constitute an accord." 
 Vann, J., in Nassoiy v. Tomlinson, 148 N. Y. 326. 
 
 Q. A owes B $500. B needs the money and demands it 
 from A. A refuses, but agrees that if B will extend the time 
 
CONTRACTS 127 
 
 of payment of a note of A's held by B for six months, he (A) 
 will pay the $500 then and there. B agrees and takes the 1500, 
 but at the date of the maturity of the note refuses to extend 
 the time of payment, and now consults you as to his rights. 
 Can he bring action on the note? 
 
 A. Yes. There was no consideration for the extension of 
 the time of payment, as A was under a legal obhgation to pay 
 the money at the time. Gary v. White, 52 N. Y. 138; O'Brien 
 V. Fleckenstein, 180 N. Y. 354. 
 
 Q. A was indebted to B in the sum of $1,000. They agreed 
 between themselves that A should pay to B $500 in cash, and 
 also give to him a certain horse for which A was offered $250. 
 B took the horse and cash in full for his claim and gave a re- 
 ceipt accordingly. B was unable to sell the horse for more 
 than $200, which he did, and then sued A to recover the bal- 
 ance of his original indebtedness. A answers setting up the 
 facts. B demurs. Judgment for whom, and if for B, for what 
 amount? Answer fully. 
 
 A. Judgment for A. B cannot recover anything. There 
 was a full accord and satisfaction. "While the payment of a 
 sum less than the amount of a liquidated debt, under an agree- 
 ment of the creditor to accept the same in satisfaction of the 
 debt, forms no bar to the recovery of the balance, if there be 
 some additional benefit or legal possibility of benefit to the 
 creditor, this will be a sufficient consideration to support an 
 agreement to accept the lesser sum in full payment. There 
 must be something different to that which the recipient is 
 entitled to demand, in the thing done or given, in order to 
 support his promise. The difference must be real, but the fact 
 that it is slight will not destroy its efficacy in constituting a 
 consideration, for if the courts were to say that if the thing 
 done in return for a promise was not sufficiently unlike that 
 to which the promisor was already bound, they would in 
 fact be determining the adequacy of the consideration. Thus 
 the giving of a promissory note for a money debt, or the gift 
 
128 CONTRACTS 
 
 of a horse, or a hawk, or a robe in satisfaction is good. Either 
 of these things might be more beneficial to the creditor than 
 money." HufTcut's Anson on Contracts, p. 69. "But it is held 
 that where there is an independent consideration, or the cred- 
 itor receives any benefit or is put in a better position, or one 
 from which there may be legal possibility of benefit to which he 
 was not entitled except for the agreement, then the agreement 
 is not nudum pactum, and the doctrine of the common law 
 to which he had adverted has no application." Andrews, J., 
 in Allison v. Abendroth, 108 N. Y. 470. For an elaborate 
 discussion of this question and a careful review of all the au- 
 thorities, see the able opinion of Potter, J., in Jaffray v. Davis, 
 124 N. Y. 164. 
 
 Q. A dealer sold and delivered 200 barrels of flour to B, 
 knowing him to be a friend of C's. C afterward wrote to A, 
 saying to him that in consideration of the sale to B, he would 
 pay if B did not. Can the dealer recover from C? 
 
 A. No. This is a past or executed consideration which is 
 insufficient to support C's promise. The promise must be 
 coextensive with the consideration. There must be something 
 given in exchange for the promise. Where the thing has already 
 been giyen, or the act done, obviously nothing is given in 
 exchange for the subsequent promise, and is therefore gratui- 
 tous and unenforceable. The doctrine that a past or executed 
 consideration will not support a subsequent promise has long 
 been settled. Chaffee v. Thomas, 7 Cowen, 358; Doty v. 
 Wilson, 14 Johns, 378. 
 
 Q. A owed B $1,000. B was about to bring an action for 
 the amount, when C promised to pay him $200 additional in 
 consideration of his forbearance to sue A. B does as requested, 
 but C refuses to pay. B sues C on the promise. Can he re- 
 cover? Answer fully. 
 
 A. B can recover. An agreement to withhold suit is a good 
 consideration to support a promise to pay a debt, although 
 no fixed and definite time is expressly agreed upon. Traders' 
 
CONTRACTS 129 
 
 Nat. Bank v. Parker, 130 N. Y. 415. "There is no doubt, 
 that an agreement by the creditor to forbear the collection 
 of a debt presently due is a good consideration for an absolute 
 or conditional promise of a third person to pay the debt, or 
 for any obligation he may assume in respect thereto. Nor is it 
 essential, that the creditor should bind himself at the time to for- 
 bear collection or to give time. If he is requested by his debtor 
 to extend the time and a third person undertakes in considera- 
 tion of forbearance being given, to become liable as surety 
 or otherwise, and the creditor does in fact forbear in reliance 
 upon the undertaking, although he enters into no enforceable 
 agreement to do so, his acquiescence in the request and an 
 actual forbearance in consequence thereof for a reasonable 
 time furi^ishes a good consideration for a collateral undertaking. 
 In other words, a request followed by performance is sufficient, 
 and the mutual promises at the time are not essential, unless 
 it was the understanding that the promisor was not to be bound, 
 except on condition that the other party entered into an im- 
 mediate and reciprocal obligation to do the thing requested." 
 Andrews, Ch. J., in Strong v. Sheffield, 144 N. Y. 392, See 
 also Muir v. Greene, 191 N. Y. 204. 
 
 Q. A threatens to sue B for $1,000, believing his claim to 
 be vaUd. B promises to pay $400 in full settlement, to which 
 A agrees, and they compromise. Afterwards it turns out that 
 A has no cause of action, and B refuses to pay the $400. A 
 brings suit to recover the $400. Judgment for whom and why? 
 
 A. Judgment for A. As A honestly believed his claim to be 
 doubtful his forbearance to sue was a sufficient consideration 
 for B's promise to pay. It is not necessary to uphold a promise, 
 based upon the surrender or compromise of a claim, to show 
 that the claim was valid or enforceable at law. The settlement 
 of a doubtful claim is a good consideration. White v. Hoyt, 
 73 N. Y. 605; Zoebisch v. Van Minden, 120 N. Y. 406; Core v. 
 Stokes, 156 N'. Y. 505. But if the claim be not even doubtful 
 in that there is no reason for an honest behef that it has some 
 foundation in law or equity, then forbearance applied to it is 
 9 
 
130 CONTRACTS 
 
 not good consideration. Springstead v. Nees, 125 App. Div. 
 232. 
 
 Q. A loaned money to B, on his (B's) promise to pay the 
 same to C, to whom A said he owed and had promised to pay 
 a like sima. Can he recover? What principle of law is involved? 
 
 A. Yes. The well-known principle of Lawrence v. Fox, 
 20 N. Y. 268, applies, where it was held that a third person 
 for whose benefit a contract was made between two others, 
 could maintain an action thereon, when there is an obligation 
 existing between that third person and the promisee. This 
 case, despite many criticisms and modifications, continues to 
 represent the law of this state on this question. "In such a 
 case, however, it must appear that, when the contract was 
 made, some obUgation, or duty, was owing from the promisee 
 in the contract to the party to be benefited. It is not suffi- 
 cient that the performance of the contract may benefit a third 
 person. It must have been entered into for his benefit and 
 the promisee must have a legal interest that it be performed in 
 favor of the third person." Embler v. Ins., Co., 158 N. Y. 436. 
 
 Q. A, the owner of real property on which B holds a mort- 
 gage of $2,000, gives a deed to C as security for $1,000 prior 
 indebtedness and for future advances which C may make, 
 C agreeing by the terms of the deed to assume the payment 
 of B's mortgage. C quitclaimed to D in consideration of D's 
 agreement to pay the $1,000 due C from A. D knew the terms 
 of the transaction between A and C in which title was not 
 intended to pass. D claims that C must pay B's mortgage, 
 and B claims that C is liable for any deficiency which may arise 
 on foreclosure of B's mortgage. C refuses to pay. Is he liable? 
 
 A. C is liable. The other requirement of the principle laid 
 down in Lawrence v. Fox, supra, an obligation due from the 
 promisee to the beneficiary under the contract is here present, 
 for the promisee (mortgagor) is personally indebted to the 
 mortgagee, and it is his personal indebtedness that is secured 
 by the mortgage on the lands, the payment of which has been 
 
CONTRACTS 131 
 
 assumed by C. In this case, the courts say, that the clause of 
 assumption or contract made between the mortgagor and his 
 grantee, is for the benefit of the mortgagee, and that as a con- 
 sequence, the mortgagee may institute an action thereon di- 
 rectly against the promisor. Burr v. Beers, 24 N. Y. 178; 
 Durnherr v. Rau, 135 N. Y, 219. 
 
 Q. A mortgage was executed by A who then owned the 
 mortgaged premises. He then conveyed the mortgaged premi- 
 ses to B, who took the property subject to the mortgage. 
 B conveys to C, who assumes the payment of the mortgage. 
 The mortgagee forecloses, and seeks to enter a deficiency judg- 
 ment against C. May he do so? 
 
 A. No. The requirements of the principle of Lawrence v. 
 Fox, supra, are not here present. There must exist some legal 
 or equitable obligation between the promisee and the third 
 party. As B was not liable to the mortgagee, he not having 
 assumed the payment of the mortgage, his grantee (C) can- 
 not be held liable on the assumption, for there was no legal 
 obligation existing between B (the promisee) and the third 
 party (the mortgagee). "To give a third party who may 
 derive a benefit from the performance of the promise, an action, 
 there must be, first, an intent by the promisee to secure some 
 benefit to the third party, and second, some privity between 
 the two, the promisee and the party to be benefited, and some 
 obligation or duty owing from the former to the latter which 
 would give him a legal or equitable claim to the benefit of the 
 promisee, or an equivalent from him personally. It is true 
 that there need be no privity between the promisor and the 
 party claiming the benefit of the undertaking, nor is it neces- 
 sary that the latter should be privy to the consideration of 
 the promise, but it does not follow that a mere volimteer can 
 avail himself of it. A legal obligation or duty of the promisee 
 to him, will so connect him with the transaction as to be a 
 substitute for any privity with the promisor, or the considera- 
 tion of the promise, the obligation of the promisee furnishing 
 an evidence of the intent of the latter to benefit him, and creat- 
 
132 CONTRACTS 
 
 ing a privity by substitution with the promisor. A mere 
 stranger cannot intervene and claim, by action the benefit 
 of a contract between other parties. There must be either a 
 new consideration or some prior right or claim against one of 
 the contracting parties by which he has a legal interest in the 
 performance of the agreement." Allen, J., in Vrooman v. 
 Tm-ner, 69 N. Y. 280. Also followed in Carter v. Holahan, 
 92 N. Y. 498; Wheat v. Rice, 97 N. Y. 302; Pond v. New 
 Rochelle Water Co., 183 N. Y. 335. 
 
 Q. A and B belonged to the same lodge. B paid A's dues 
 as he did not want A to be dropped from membership, A at 
 the time being in Europe. When A returned he promised to 
 pay B the money back, but did not do so. B brings suit. Can 
 he recover? 
 
 A. No. There was no consideration for A's promise. While 
 A was xmder a moral obligation to pay B the money, it does 
 not in law constitute a consideration to support a promise, 
 and therefore B cannot recover. Bartholomew y. Jackson, 
 20 Johns. 28. 
 
 Q. A writes a letter to B,^ offering to employ him for ten 
 months at $50 per month. B telegraphs A accepting the offer, 
 and says that he will reduce the contract to writing the next 
 day. Thereafter B presents himself at A's place of business, 
 and announces his readiness to perform; but A has already em- 
 ployed C in his stead. B brings suit against A. Can he recover? 
 
 A. Yes. Where by means of letters and telegrams exchanged 
 between the parties, a clear and definite proposition containtag 
 all the requirements of a completed contract, is made by one 
 and accepted by the other, with the understanding that the 
 agreement shall be expressed in formal writing, the parties 
 are bound by the contract as made by the correspondence. 
 When the parties intend that a mere verbal agreement shall 
 be finally reduced to writing as the evidence of the terms of 
 the contract, it may be true that nothing is binding upon either 
 party until the writing is executed. But here the contract 
 
CONTRACTS 133 
 
 was already in writing, and it was none the less obligatory 
 upon both parties because they intended that it should be put 
 in another form. The principle governing such cases was 
 well stated by Selden, J., in Pratt v. H. R. R. R. Co., 21 N. Y. 
 308, as follows: "A contract to make and execute a certain 
 written agreement, the terms of which are mutually under- 
 stood and agreed upon, is in all respects as valid and obliga- 
 tory, where no statutory objection interposes, as the written 
 contract itself would be, if executed. If, therefore, it should 
 appear that the minds of the parties had met; that a proposi- 
 tion for a contract had been made by one party and accepted 
 by the other; that the terms of this contract were in all re- 
 spects definitely understood and agreed upon, and that a part 
 of the mutual imderstanding was that a written contract em- 
 bodying these terms should be drawn and executed by the 
 respective parties, this is an obligatory contract, which neither 
 party is at liberty to refuse to perform." "In this case, it is 
 apparent, that the minds of the parties met through the corre- 
 spondence, upon all the terms as well as the subject-matter 
 of the contract, and that the subsequent failure to reduce 
 this contract to the precise form intended, did not affect the 
 obligation of either party which had already attached, and they 
 may now resort to the primary evidence of their mutual stipu- 
 lations." Sanders v. Pottlitzer Fruit Co., 144 N. Y. 209. 
 
 Q. A enters into an oral agreement with B, whereby the 
 latter agrees to paint a certain house in not more than fourteen 
 months. B works five months and then is arbitrarily discharged 
 by A, who claims that the contract is void under the Statute of 
 Frauds. Can B recover on this contract? 
 
 A. Yes. This agreement is vafid. The Statute of Frauds 
 provides that every agreement which by its terms is not to be 
 performed within one year from the making thereof, shall be 
 void, unless it, or some note or memorandum thereof be in 
 writing, and subscribed by the party to be charged therewith, 
 or by his lawful agent. This agreement may be performed 
 within one year, and is therefore valid. "An agreement to 
 
134 CONTRACTS 
 
 save the Statute of Frauds need not be in writing, although 
 by the terms of it, the party may at his election perform the 
 agreement after the year; it is only when it appears by the 
 whole tenor of the agreement that it is to be performed after 
 the year, that a note in writing is necessary." Plimpton v. 
 Curtis, 15 Wend. 336. "The statute, as interpreted by the 
 courts, does not include agreements, which may or may not 
 be performed within one year from the making thereof, but 
 merely those which within their terms and consistent with 
 the rights of the parties, cannot be performed within one year 
 from the making thereof." Allen, J., in Kent v. Kent, 62 N. 
 Y. 560, 564. 
 
 Q. A enters into an oral agreement with B on March 31st, 
 1910, whereby he agrees to do certain services for one year to 
 commence on the first day of April, 1910. A does the work 
 and upon B's failure to pay for the same, brings suit in which 
 B sets up the Statute of Frauds as a defense. Judgment for 
 whom and why? 
 
 A. Judgment for B. "To hold that a contract made on the 
 31st day of March for services for one year, to commence on 
 the 1st day of April, was not within the Statute of Frauds, 
 would be to evade and not to execute the statute. The man- 
 date of the statute is positive that an agreement that, by its 
 terms is not to be performed within one year from the making 
 thereof shall be void, unless it is evidenced by some writing 
 signed by the party to be charged therewith. It is not ap- 
 parent to us how it can be fairly held that a contract for a full 
 year's service can be performed within one year from the mak- 
 ing thereof, when it was made on a day previous to the com- 
 mencement of the year. If the statute can be thus extended 
 for one day, why can it not be extended indefinitely?" Bil- 
 lington v. Cahill, 51 Hun, 132. "When a verbal agreement is 
 entered into for the work and labor of one of the parties for a 
 year, to commence in the future, an entry upon the employment, 
 with the acquiescence of the employer, but without a new 
 contract, does not take the case out of the Statute of Frauds, 
 
CONTRACTS 135 
 
 and the employer is not liable under the contract." Oddy v. 
 James, 48 N. Y. 685. 
 
 Q. A makes a contract ^ith B, by which, for a certain price, 
 A was to repair the boilers of B's factory; price to be paid 
 when the boilers as fixed,' have proved. to B's satisfaction, to 
 be a success. The boilers were fixed, arid B used them a rea- 
 sonable length of time without objection. In an action fo^ 
 the price, B defends on the groimd that the boilers are not 
 satisfactory. Can A recover? 
 
 A. Yes. The defense is untenable. "A simple allegation 
 of dissatisfaction, without a good reason therefor, is no de- 
 fense. Under such a contract, that which the law will say a 
 contracting party ought in reason to be satisfied with, that 
 it will say he is satisfied with." Duplex Boiler Co. v. Garden, 
 101 N. Y. 387. "There is no doubt of the general rule that, 
 where one party agrees to do a certain thing to the satisfaction 
 of the other, and the excellence of the work is a matter of taste, 
 such as for instance, a portrait, bust, suit of clothes, dramatic 
 play, or a piece of furniture, the employer may reject it without' 
 assigning any reason for his dissatisfaction. In such a case, 
 the law cannot relieve against the folly of the employee, by 
 inquiring whether the dissatisfaction of the employer was, 
 based upon reasonable grounds or not. It is even doubtful, 
 whether it can inquire into the good faith of the employer's 
 decision. The parties must stand to their contract as they 
 made it, and if one party agrees to fm-nish an article that is. 
 satisfactory to the other, he constitutes the latter the sole 
 arbiter of his own satisfaction. If, however, the task to be 
 performed does not involve a matter of taste, but of conmion 
 experience, as an ordinary job of mechanical work or quality 
 of material, the law will say, what in reason ought to satisfy 
 him, does satisfy him." McAdam, J., in Gray v. Alabama 
 Bank, 10 N. Y. Suppl. 5; Crawford v. Pub. Co., 163 N. Y. 404. 
 
 Q. A and B entered into a contract by which B was to build 
 a house for A. A was to pay $1,000 upon its completion, and 
 
136 CONTRACTS 
 
 B was to present to him a certificate from X, an architect, 
 that the house as built, fully complied with the terms of the 
 contract. B duly completed the house, but the architect, 
 having a grudge against B, refused to deUver the certificate. 
 B brings suit to recover the $1,000. Can he recover? 
 
 A. Yes. Where a contractor in a building contract has 
 substantially performed, although by the contract he is bound 
 to procure an architect's certificate of performance, he may 
 recover without procuring such certificate, by showing an 
 unreasonable refusal of the architect to give it. " It is a general 
 rule of law, that a party must perform his contract before he 
 can claim the consideration due him upon performance; but 
 the performance in all cases need not be literal and exact. 
 It is sufficient that the party bound to perform, acting in good 
 faith, and intending and attempting to perform his contract, 
 does so substantially, and then he may recover for his work, 
 notwithstanding slight or trivial defects in performance, for 
 which compensation may be made by an allowance to the other 
 party. Whether a contract has been substantially performed, 
 is a question of fact, depending upon all the circumstances 
 of the case to be determined by the trial court." Nolan v. 
 Whitney, 88 N. Y. 648; Desmond Co. v. Friedman Co., 162 
 N. Y. 486. 
 
 \ 
 
 Q. A entered into a contract with B, whereby B agreed to 
 purchase fifty slaughtered steers to be delivered immediately, 
 and fifty live steers to be delivered two months later. The 
 price agreed upon was 120 per head for the live steers and $25 
 per head for the slaughtered steers. The slaughtered steers 
 were delivered by A, but he failed to deliver the others. A 
 sues B for the price of those delivered. B defends on the 
 ground that the contract was entire, and that performance 
 of the contract by A in all its terms was a condition precedent 
 to his recovery. What are the rights of the parties? 
 
 A. A can recover the price of the slaughtered steers, subject 
 to a counterclaim for B's damages for breach of contract as to 
 
CONTRACTS 137 
 
 the live steers. "It is a question of intention, whether the 
 several parts of a contract made at one and the same time are 
 to be taken distributively and are independent, or whether 
 entire performance by one party of all stipulations on his 
 part, is a condition precedent to his right of recovery against 
 the other party in respect to a portion of the contract which 
 he has fully performed." Tipton v. Feitner, 20 N. Y. 423. 
 "A contract is entire, when the parties intend that the promise 
 by one party is conditional upon entire performance of his 
 jpart of the contract by the other party. A contract is said 
 to be severable, when the part to be performed by one party 
 consists of several and distinct items, or is left to be implied 
 by law." Ming v. Corbin, 142 N. Y. 334. "Indeed the en- 
 tirety or divisibility of several items is always a question of 
 intent and frequently one of fact. No precise rule can be 
 given by which this question in a given case may be settled. 
 Like most other questions of construction, it depends upon the 
 intention of the parties, and this must be discovered in each 
 case by considering the language employed and the subject- 
 matter of the contract." Silberman v. Fretz, 16 Misc. 449. 
 
 Q. A agrees by written contract to deliver 1,200 tons of 
 steel to B in lots of 100 tons each on twelve successive days 
 at a specified price per ton, B agreeing to furnish security for 
 the purchase price before the first delivery. Six lots of the 
 steel are delivered on six successive days and B pays cash on 
 delivery of each lot, but no security is given by B as he agreed. 
 On the seventh day steel advances in price and A refuses to 
 complete the contract. B then offers A the purchase price 
 of the remaining 600 tons, but A refuses to accept the same. 
 What are the rights of the parties? Answer fully. 
 
 A. A, by not insisting on the security being given, waived 
 B's breach; A therefore cannot refuse to perform. "Where a 
 breach of contract by one party occasions an injury to the 
 other which is susceptible of compensation in damages, it 
 does not relieve the latter from liabiUty under the contract, 
 where both parties have gone on and performed it for some 
 
138 CONTRACTS 
 
 time thereafter. And' if he is entitled to the strict enforcement 
 of his contract, but has led the other party to the belief that 
 he will not exact it, he thereby waives his right to a strict per- 
 formance." 3 Amer. & Eng. Ency. of Law (2d Ed.), 154; 
 Copley Iron Co. v. Pope, 108 N. Y. 232; Pakas v. Hollings- 
 head, 184 N. Y. 211. 
 
 Q. A promises to marry B on January 1st, 1910. On May 
 1st, 1909, he marries C. B immediately sues A for breach of 
 promise. A's defense was that the action was prematurely 
 brought. Judgment for whom and why? 
 
 A. Judgment for B. An action for breach of promise will 
 lie at once, where one party has voluntarily placed it beyond 
 his power to perform, or upon a positive refusal to perform a 
 contract of marriage, although the time specified for the per- 
 formance has not arrived. Burtis v. Thompson, 42 N. Y. 246. 
 
 Q. A, an actor, was engaged by B, a theatrical manager, on 
 August 15th, to perform at his theater for twenty weeks com- 
 mencing September 1st at $100 per week. At the time speci- 
 fied A reported for rehearsals, but B repudiated his agreement 
 and would not allow A to take part in the performances. A 
 immediately sues B for $2,000. Can he recover? 
 
 A. Yes. "Where a contract for future employment and 
 service has been entered into, and upon the arrival of the time 
 specified for the commencement of the service, the employee 
 being ready and willing to perform, the employer absolutely 
 repudiates the contract, this is equivalent to a refusal to allow 
 the employee to enter upon the service, and is a breach of the 
 contract. It is not necessary for the employee thereafter to 
 tender his services or to keep himself in readiness to perform. 
 His only further duty is to use reasonable care and diligence in 
 entering into other employment of the same kind, and thus 
 to reduce the damages. The remedy of the employee is not 
 an action for wages, but to recover damages for the breach. 
 The damages in such action is prima facie the amount of the 
 wages for the full temi. Where the contract is repudiated 
 
CONTRACTS 139 
 
 by the employer prior to the time for entering into the service, 
 the employee has an immediate cause of action, and it is not 
 necessary to aver a readiness to perform at the specified time. 
 It is at the option of the employee either to treat the contract 
 as thus broken, or as still subsisting; in the latter case he may 
 offer to perform on the day specified for the commencement 
 of the service. The rule of damages in either case is the same." 
 Howard v. Daly, 61 N. Y. 362; Weed v. Burt, 78 N. Y. 193; 
 Kelly V. Ins. Co., 186 N. Y. 19. 
 
 Q. B makes an agreement with A for the purchase of 1,000 
 yards of silk at $1 per yard, to be delivered June 15th, 1910. 
 On June 1st, 1910, B meets A and tells him that he cannot use 
 the silk, and that he need not send the same. A consults you. 
 What are his rights, and what is the measure of damages if any? 
 
 A. A can sue inunediately, and the measure of damages is 
 the difference between the contract price and the market price 
 at the time and place of delivery. "Where before the time of 
 delivery fixed by a contract for the sale of goods, the vendee 
 notifies the vendor that he will not receive or pay for the goods, 
 and requests him to stop any further efforts to carry out the 
 contract, the vendor is justified in treating the contract as 
 broken at that time, and is entitled to bring an action for the 
 breach inunediately without tendering delivery; it is not neces- 
 sary to await the expiration of the time of performance fixed 
 by the contract, nor can the vendee retract his renunciation 
 of the contract, after the vendor has acted upon it and by sale 
 of the goods to other parties has changed his position." Wind- 
 muUer v. Pope, 108 N. Y. 674; Nichols v. Scranton Steel Co., 
 137 N. Y. 471. 
 
 • 
 
 Q. A agrees with B to deliver to him at his store in three 
 days, fifty barrels of salt at $3 per barrel. The next day salt 
 falls in price, and B refuses to accept the salt upon its delivery. 
 What are A's rights? 
 
 A. A can sue for breach of contract; the damages recover- 
 able being the difference between the contract price and the 
 
140 CONTRACTS 
 
 market value of the goods at the time and place of delivery. 
 Dana v. Fiedler, 12 N. Y. 40; Cohen v. Piatt, 69 N. Y. 348. 
 
 Q. A and B enter into a contract on May 1, 1910, whereby 
 the latter agrees to buy of A a certain farm, title to be given 
 and purchase price paid January 1, 1911. On October 1, 1910, 
 a barn on the farm, which is not worth much, burns. On Janu- 
 ary 1, 1911, A tenders deed, but B refuses to accept or pay the 
 contract price. A sues B for damages. Can he recover? 
 
 A. No. The agreement had reference to the existence of 
 the property in substantially the same condition, reasonable 
 wear and tear excepted, as it was at the time, and performance 
 of the agreement by the vendor being rendered impossible by 
 the fire, the vendee was not bound. He was entitled to the 
 property in the condition it was when the agreement was 
 made, and a refusal to take the property after the barn had 
 been destroyed by fire was not a breach of the contract. Smyth 
 V. Sturges, 108 N. Y. 495; Goldman v. Rosenberg, 116 N. Y. 78. 
 
 Q. A agrees by written contract to employ B at $10 per 
 week for an indefinite time, and B agrees to give A three weeks' 
 notice in writing before leaving or forfeit $200. B works for 
 twenty weeks without drawing salary, and then leaves with- 
 out giving A any notice. B sues A to recover $200 as salary 
 due. A sets up the agreement as a defense. Judgment for 
 whom and why? 
 
 A. Judgment for B. The contract is void for want of mu- 
 tuality. A did not agree to employ B for any definite time, 
 therefore the contract is void, and B was not obliged to work 
 for any definite time, and could leave when he pleased without 
 incurring any liability. Tucker v. Woods, 12 Johns. 190. The 
 contract would also be avoided on the ground that the forfei- 
 ture named in the contract is a penalty, being greater than the 
 actual loss suffered. "Where the parties to a contract stipulate 
 for a payment in liquidation of damages by a party in default, 
 if the damages are in their nature uncertain and incapable 
 of exact ascertainment, and may be dependent upon extrinsic 
 
CONTRACTS 141 
 
 consideration and circumstances, and the amount is not upon 
 the face of the contract out of all proportion to the probable 
 loss, it will be treated as liquidated damages. The fact that 
 the sum agreed to be paid is termed by the parties a penalty, 
 is not controlling upon the question of construction. It seems, 
 however, that when the stun is disproportionate to the pre- 
 sumable or probable damage, or to a readily ascertainable 
 loss, the courts will treat it as a penalty, and will relieve upon 
 the principle that the precise sum was not the essence of the 
 agreement, but was in the nature of a security for performance." 
 Gray, J., in Ward v. H. R. Bridge Co., 125 N. Y. 230. 
 
 (Note.) "Where a contract for a municipal improvement requires the 
 contractor to pay a certain sum a day, as liquidated damages, for each day 
 the completion of the work is delayed beyond a specified date, the municipal- 
 ity will not be allowed to retain from the contractor a substantial sum under 
 the guise of liquidated damages for delay when in fact only nominal damages 
 have been sustained." McCann v. City of Albany, 158 N. Y. 634; Caesar v. 
 Rubinson, 174 N. Y. 492. 
 
 Q. A was employed by B at a salary of $1,000 per annum, 
 nothing more being said. A only worked for B for two months 
 when he left. B refused to pay A the two months' wages, 
 and upon A bringing suit for the same, B set up the agreement 
 as a defense. Judgment for whom and why? 
 
 A. Judgment for A. "A general or indefinite hiring doe^ 
 not import an employment by the year. A hiring at so much 
 a year, no time being specified, is an indefinite hiring; and 
 such a hiring is a hiring at will, and may be terminated by 
 either party." Martin v. N. Y. Ins. Co., 148 N. Y. 117; Outer- 
 bridge V. Campbell, 87 App. Div. 597. 
 
 Q. A and B agreed to corner the price of wheat in the market, 
 and thus raise the price. They each deposit the sum of $5,000 
 with C, as a forfeiture for a failure to perform by either one 
 of them. A does not perform, and B sues C for the $10,000. 
 A also sues C for the return of the $5,000. What are the rights 
 of the parties? 
 
 A. As this contract is illegal, being in restraint of trade, 
 
142 CONTRACTS 
 
 B cannot recover the $10,000, but can get a return of his $5,000. 
 The contract being illegal, and therefore void, is not enforce- 
 able. See 15 Amer. & Eng. Ency. of Law (2d Ed.), 1007. 
 See also Merritt v. Millard, 4 Keyes (N. Y.), 208; Woodworth 
 V. Bennett, 43 N. Y. 273. 
 
 Q. On January 1, 1905, A and B entered into a written con- 
 tract whereby A agreed to sell to B 600 barrels of flour at the 
 then market price; the contract also provided that B waived 
 the delivery of the flour, and that a settlement should be made 
 July 1, 1905, A to pay B for any increase and B to pay for any 
 decrease in the price of flour. On July 1, 1905, flour was $1 
 per barrel higher. B demands from A that he should pay him 
 $500, which A refuses. What are the rights of the parties? 
 State your reasons. 
 
 A. B cannot recover anything from A, as this contract was 
 a wager and therefore void. "To render a contract for the 
 purchase and sale of property void as a wagering contract, it 
 must appear to have been the understanding when the contract 
 was made that the property should not be delivered, and that 
 only the difference in the market price should be paid or re- 
 ceived." Kingsbury v. Kirwan, 77 N. Y. 612; Springs v. 
 James, 137 App. Div. 117. 
 
 Q. A agreed orally to sell to B a certain house and lot, and 
 to do painting thereon for $40,000. B paid the money, and 
 A conveyed the house and lot by deed properly executed, but 
 failed to perform the labor as agreed. He sues for breach of 
 contract, and A sets up the Statute of Frauds. Judgment for 
 whom and why? 
 
 A. Judgment for A. The Statute of Frauds is a good de- 
 fense, as a contract for the sale of land must be in writing, and 
 where one part of a contract is void by the Statute of Frauds, 
 the whole contract is void. In this case, the sale was void 
 under the Statute of Frauds, and therefore the entire contract 
 was void. The sale was legalized by the delivery of the deed, 
 but the work to be done was not, and as there was one con- 
 
CONTRACTS 143 
 
 sideration for both, the clauses cannot be separated, and the 
 action cannot be maintained, Dow v. Way, 64 Barb. 255; 
 DeBeerski v. Paige, 36 N. Y. 537; Day v. N. Y. C. R. R. Co., 
 51 N. Y. 533; Day v. McConnell, 133 N. Y. 425. 
 
 Q. A offered B $5,000 for his farm consisting of a house, 
 barn and cattle contained in the barn. A gives B $1,000 de- 
 posit to bind the bargain. B accepts and promises to give A 
 a deed of the farm and a bill of sale of the cattle the next day. 
 When B tendered the deed and bill of sale to A the next day, 
 A refused to carry out his agreement and demanded the re- 
 turn of his deposit. Upon B's refusal to return the money, 
 A brings action. Judgment for whom and why? 
 
 A. Judgment for B. A cannot recover the deposit back 
 as he himself repudiated the agreement. The contract is void 
 not being in writing as it is for the sale of land. Although the 
 contract was also for the sale of personal property, the agree- 
 ment is entire, founded upon one consideration and if not 
 reduced to writing is void under the Statute of Frauds as well 
 in respect to the personal property as to the real property. 
 Harsha v. Reid, 45 N. Y. 420. 
 
 (Note.) "If one pays money, or renders services or delivers property upon 
 an agreement condemned by the Statute of Frauds he may recover the money 
 paid in an action for money had and received, and he may recover the value 
 of his services and of his property upon an implied assumpsit to pay, pro- 
 vided he can show that he has been ready and wiUing to perform the agree- 
 ment, and the other party has repudiated or refused to perform it." Reed v. 
 McConnell, 133 N. Y. 435. 
 
 Q. A by written contract agrees to employ B for one year 
 for 100 barrels of flour at $10 per barrel. At the end of the 
 year A refuses to give B the 100 barrels of flour, whereupon B 
 sues A for $1,000 in money. Can he recover? 
 
 A. Yes. Where a party agrees to pay the value of services 
 rendered in specific chattels or articles of property, and upon 
 demand refuses or fails to deliver the property, the obligation 
 
144 
 
 CONTRACTS 
 
 is thereby converted into one for the payment of money. N. Y. 
 News Pub. Co. v. Nat. S. S. Co., 148 N. Y. 39. 
 
 Q. A by written agreement, employs B to do certain work 
 for one year at a salary of |1,000 per annum. At the end of 
 the year nothing further is said and B continues in the employ 
 of A for several months when he is arbitrarily discharged by B. 
 A brings action against B to recover $1,000. Can he do so? 
 
 A. Yes. "When on the expiration of a written contract 
 of employment for one year, the servant remains in the master's 
 employ without agreement limiting the subsequent period of 
 his emplojonent, the law implies a renewal of the contract 
 upon the same terms for another year." Mendelson v. Bron- 
 ner, 124 App. Div. 396; Weffinger v. Groh, 112 App. Div. 250, 
 aff'd in 185 N. Y. 610. 
 
CHAPTER VII 
 
 Corporations 
 
 Q. State the difference between a corporation and a joint- 
 stock company, 
 
 A. The distinction is very well drawn by Finch, J., in People 
 ex rel. v. Coleman, 133 N. Y. 282, in the following language: 
 "The debt of the corporation is its debt, and not that of its 
 members, the debt of the joint-stock company is the debt of 
 the associates however enforced; the creation of the corpora- 
 tion merges and drowns the liability of its corporators, the crea- 
 tion of the stock company leaves unharmed and unchanged 
 the liability of the associates; the one derives its existence from 
 the contract of individuals, the other from the sovereignty of 
 the state. The two are alike, but not the same. More or less 
 they crowd upon and overlap each other, but without losing 
 their identity, and so, while we cannot say that a joint-stock 
 company is a corporation, we can say that a joint-stock com- 
 pany is a partnership with some of the powers of a corporation." 
 The distinguishing featiu*e of the joint-stock company is the 
 personal liability of its members. Matter of Jones, 172 N. Y. 
 575; Hibbs v. Brown, 190 N. Y. 193, 
 
 Q. A Brooklyn manufacturing company fails to take certain 
 necessary steps required by law to create a corporation. Sub- 
 sequently the corporation purchases $2,000 worth of goods 
 from A, and fails to pay for the same. A brings suit against 
 the company to recover the amount of the purchase price. The 
 company defends on the ground that it was not a corporation 
 at the time the debt was contracted. Judgment for whom and 
 why? 
 
 A. Judgment for A, as the corporation is estoppd from deny- 
 10 145 
 
l46 Corporations 
 
 ing its corporate existence, by reason of its having held itself 
 out as a corporation. "The papers filed by which the corpora- 
 tion is sought to be created are colorable and so defective, that 
 in a proceeding on the part of the state against it, it would for 
 that reason be dissolved, yet by acts of user under such an 
 organization it becomes a corporation de facto, and no advan- 
 tage can be taken of such defect in its constitution collaterally 
 by any person." Buffalo R. R. Co. v. Gary, 26 N, Y. 75. 
 
 Q. A corporation failed to file a duplicate certificate of in- 
 corporation as required by statute. A pm-chases goods from 
 the corporation to the value of $5,000, and in an action for the 
 price by the corporation against him, he sets up the nonin- 
 corporation as a defense. Is the defense good? Give your 
 reasons. 
 
 A. The defense must fail. "A party who has entered into a 
 contract with another, in which the latter assumes to be and 
 contracts as a corporation, is estopped from denying the cor- 
 porate existence, and cannot resist an action brought by the 
 corporation against him on the contract." U. S. Vinegar Co. 
 v. Schlegel, 143 N. Y. 537. "To establish a corporation de 
 facto against one who has recognized the corporate character 
 by contracting with it, it is sufficient to show the existence of 
 a law authorizing its formation, proceedings taken for that pur- 
 pose in professed compliance with that law, and subsequent 
 acts of user." Methodist Church v. Pickett, 19 N. Y. 482. 
 See also Bank of Keokuk v. Pfeiffer, 108 N. Y. 242. 
 
 Q. Defendant was sued by plaintiff, a creditor of a corpora- 
 tion, to enforce defendant's liability as a stockholder thereof, 
 for a debt contracted while the latter was a stockholder of rec- 
 ord and managing director. Defendant answers that there was 
 no such corporation, the same not having been incorporated 
 according to statute. Plaintiff demurs. Judgment for whom 
 and why? 
 
 A. The demurrer should be sustained. "A defect in the 
 proceedings to organize a corporation is no defense to a stock- 
 
COEPORATIONS 147 
 
 holder sued to enforce his individual liability, who has partici- 
 pated in its acts of user as a corporation de facto, and appeared 
 as a stockholder upon its books, when the debt for which 
 he is sued was contracted." Eaton v. Aspinwall, 19 N. Y. 
 137. 
 
 Q. The New York statute requires a certificate of incorpora- 
 tion of a membership corporation to be signed by a justice of 
 the supreme court and filed with the secretary of state, and also 
 a copy with the county clerk. B contracted with the X Com- 
 pany as a corporation, and now seeks j;o hold the stockholders 
 liable as partners, on the ground that as the corporation had 
 failed to file a copy of its certificate of incorporation with the 
 county clerk, the corporation was never legally incorporated. 
 Can the stockholders be held as partners? Give reasons. 
 
 A. The stockholders are not liable as partners. "If an as- 
 sociation assumes to enter into a contract in a corporate capac- 
 ity, and a party dealing with the association contracts with it 
 as if it were a corporation, the individual members of such as- 
 sociation cannot be charged as parties to the contract, either 
 severally, jointly, or as partners. This is equally true, whether 
 the corporation was in fact a corporation, or not, and whether 
 the contract with the association in its corporate capacity was 
 authorized by the legislature or not. If an association under- 
 takes to enter into a contract as a corporation, it is clear that 
 the members of the association do not agree to be parties to the 
 contract, either jointly or severally. They do not agree to be 
 bound as partners, either to each other, or to the party con- 
 tracting with the association. It is equally clear that the party 
 contracting with the association does not intend to contract 
 with its members individually. To treat the individual mem- 
 bers of the association as parties to the contract, under the 
 circumstances, would not only involve the nullification of the 
 contract which was contemplated by the parties, but the crea- 
 tion of a different contract which neither of the parties intended 
 to make." Seacord v. Pendleton, 55 Hun, 579. See also Bank 
 V. Walker, 66 N. Y. 424. 
 
148 CORPORATIONS 
 
 Q. The X Savings Bank acting as agent for an undisclosed 
 principal, employs A as broker to purchase and sell for it, cotton 
 for future delivery. A purchases certain cotton for the bank 
 which the latter refuses to take, on the ground that it had no 
 power or authority to deal in cotton. A brings an action 
 against the bank for his commissions. Can he recover? 
 
 A. No. "Speculative contracts entered into for the sale 
 and pm-chase of stock by a savings bank at the stock board or 
 elsewhere, subject to the hazard and contingency of gain and 
 loss, are ultra vires and a perversion of the powers conferred by 
 its charter. Contracts of corporations are ultra vires when they 
 involve adventures or undertakings outside and not within the 
 scope of power given by their charters. The plea of ultra vires 
 will always prevail, unless it shall defeat justice or accomplish 
 a legal wrong. The defense of ultra vires is not available if the 
 contract be executed. But this doctrine has no application to 
 executory contracts which are sought to be made the founda- 
 tion of an action, or to contracts that are prohibited as against 
 public policy. A corporation acting as the agent of an undis- 
 closed principal, and so liable as principal, is entitled, when 
 this liabihty is sought to be enforced, to all the rights and 
 privileges that the law will give to it, if in fact it occupy the 
 position of principal." Haight, J., in Jemison v. Bank, 122 N. 
 Y. 135. See also Cause v. Trust Co., 196 N. Y. 155. 
 
 Q. A purchased bonds of a railroad corporation and received 
 as a bonus four shares of stock for each bond purchased. His 
 purchase was made under an agreement with the X Bank that 
 one-half of the purchase should be for the benefit of the bank. 
 Upon A's refusal to deliver to the bank its share of the profits, 
 the bank brings suit against A. Can it recover? 
 
 A. No. The contract was simply executory, and being 
 ultra vires, the bank could not enforce it. The contract was 
 ultra vires, because a corporation organized to carry on the 
 business of banking, is not authorized to become a stockholder 
 in a railroad corporation, Sistare v. Best, 88 N. Y. 527; 
 
CORPOEATIONS 149 
 
 Nassau Bank v. Jones, 95 N. Y. 115; Appleton v. Bank, 190 
 N. Y. 417. 
 
 Q. The X Corporation, a railroad conapany, sells to the Y 
 Company certain mirrors. In a suit for the contract price, the 
 Y Company sets up that the X Company was not authorized 
 to manufacture and sell the goods. Is the defense good? State 
 your reasons. . 
 
 A. No. While the contract is ultra vires, it being executed, 
 the defense is of no avail. "Where a corporation has fully per- 
 formed a contract on its part to manufacture and deliver cer- 
 tain articles, it is no defense to an action brought to recover 
 the purchase price, that the contract was not within or inci- 
 dental to its chartered powers and privileges, or for the pur- 
 poses for which it was created." Whitney Arms Co. v. Barlow, 
 63 N. Y. 62. "A corporation caijnot avail itself of the defense of 
 ultra vires, when the contract has been in good faith fully per- 
 formed by the other party, and the corporation has had the 
 full benefit of the performance and of the contract." Leinkauf 
 V. Lombard, 137 N. Y. 417. 
 
 Q. The X Company threatens to do an ultra vires act. A, a 
 shareholder, objects and comes to you for advice. What are 
 his rights? 
 
 A. He can restrain the act. A threatened abuse of the cor- 
 porate powers may be arrested by the courts at the suit of a 
 stockholder. So also, the shareholders may recover their dam- 
 ages against the officers who have diverted the capital to im- 
 proper uses. Bissel v. R. R., 22 N. Y. 258, 275; Hohnes v. 
 Willard, 125 N. Y. 75. 
 
 Q. A, together with B and C, was a promoter of a corpora- 
 tion. Realizing that the ownership of certain real estate would 
 be necessary to the corporation when formed, he purchased it 
 with his own money. He then united with others in forming 
 the corporation. A subsequently sold the real estate to the 
 corporation when formed, at an advance of 200% over the 
 price paid by him therefor. He retained a portion of the prof- 
 
150 CORPORATIONS 
 
 its himself, and divided the remainder of the profits between 
 B and C. At the time of the purchase of the land by the cor- 
 poration, the other stockholders had no knowledge. Upon 
 learning of the facts, they object. What, if any remedy, have 
 they, and against whom can it be enforced? Give your reasons 
 in full. 
 
 A. The stockholders can compel A, B and C to account as 
 to the amount of profits they made. "Where several persons 
 are engaged in a joint enterprise for their mutual benefit, each 
 has a right to demand and expect from his associates good faith 
 in all that relates to their common interests, and no one of them 
 will be permitted to take to himself a secret and separate ad- 
 vantage to the prejudice of the others; and where one, unknown 
 to his associates, causes to be transferred to the association 
 property previously purchased by himself, at a price exceeding 
 that paid by him therefor, he is accountable to his associates 
 for the profits thus made. In this adventure the three are re- 
 garded as partners. It matters not that the title to the lands 
 was not in all the partners; after partners have divided the 
 profits between them, they are certainly in no position to deny 
 the existence of the partnership, and all are accountable for the 
 profits to the corporation." Getty v. Devlin, 54 N. Y. 403, and 
 70 N. Y. 504. See also Brewster v. Hatch, 122 N. Y. 349. 
 
 (Note.) "It is only where the promoter informs every subscriber, or the 
 director informs every fellow director and stockholder that he is personally 
 interested in and the amount of profits he expects to make on a sale to the 
 corporation, that a promoter or director will be permitted to retain or make a 
 profit on such sale; and the burden is upon him to show that he took no ad- 
 vantage of his fellow subscribers or stockholders. Where only a part of the 
 directors or stockholders have notice or knowledge of a sale of real estate 
 made by a promoter and director to the corporation, the latter cannot retain 
 an individual profit, but must account therefor to the corporation in an 
 action brought against him by it." Colton Imp. Co. v. Richter, 26 Misc. 26. 
 See also Munson v. R. R. Co., 103 N. Y. 58; Sage v. Culver, 147 N. Y. 247; 
 Redhead v. Club, 148 N. Y. 471. 
 
 Q. A is a stockholder in a corporation. There is an accumula- 
 tion of profits in the treasury, but the directors wrongfully re- 
 fuse to declare a dividend. Has A any remedy, if so, what? 
 
COBPORATIONS 151 
 
 A. A can bring action to compel the directors to declare a 
 dividend. "Where the surplus profits of a corporation prop- 
 erly applicable to a dividend, are without doubt ample for the 
 purpose, and the directors or a majority of them, acting in bad 
 faith and without reasonable cause, refuse to declare a dividend, 
 the courts will interfere in favor of those stockholders who 
 otherwise would be without remedy." Hiscock v. Lacy, 9 
 Misc. 578. "When a corporation has a surplus, whether a 
 dividend shall be made, and if made, how much it shall be, and 
 when and where it shall be payable, rest in the fair and honest 
 discretion of the directors, uncontrollable by the courts. If 
 the discretion is not fairly and honestly exercised, the inference 
 is that the courts should interpose in behalf of the injured 
 stockholders." Williams v. Western Union Tel. Co., 93 N. Y. 
 162. See also McNab v. Mfg. Co., 62 Hun, 18; aff'd in 133 N. Y. 
 687; Miller v. Perfumery Co., 125 App. Div. 883. 
 
 Q. The X Corporation was duly organized in the year 1912. 
 Its directors named in its certificate of incorporation for the 
 first year, held over, and continued as directors, because of 
 their neglect and refusal to adopt by-laws to enable the stock- 
 holders to hold an annual election for directors in the year 1913. 
 The said directors then employed B as the attorney for the 
 corporation for the year 1913, at a salary of $5,000. After the 
 year 1913, a new board of directors was elected and refused to 
 continue the services of B, and also refused to pay B for the 
 services as attorney for the company for the year 1913. Upon 
 suit by B against the corporation, who should have judgment 
 and why? 
 
 A. Judgment for the corporation, as the contract for B's serv- 
 ices was fraudulent and void according to sec. 27 of the Stock 
 Corp. Law (Consolidated Laws, chap. 59), which is as follows: 
 "When the directors of any corporation for the first year of its 
 corporate existence shall hold over and continue to be directors 
 after the first year, because of their neglect or refusal to adopt 
 the by-laws required to enable the stockholders to hold the 
 annual election for directors, all their acts and proceedings 
 
152 CORPORATIONS 
 
 while so holding over, done for and in the name of the corpora- 
 tion, designed to charge upon it any liability or obligation for 
 the services of any such director, or any officer, or attorney or 
 counsel appointed by them, and every such liability or obliga- 
 tion shall be held to be fraudulent and void." 
 
 Q. A certain question has arisen as to the validity of the 
 election of the board of directors of the X Manufacturing Com- 
 pany by a plurality of the votes at the election for that purpose. 
 What do you say? 
 
 A. The election is valid, according to sec. 25 of the Stock Corp. 
 Law, which in pa,rt is as follows: "The directors of every stock 
 corporation shall be chosen at the time and place fixed by the 
 by-laws of the corporation, by a plurality of the votes at such 
 election." 
 
 Q. A, who was not a stockholder of the X Corporation, was 
 elected a director at a meeting duly held. The by-laws of the 
 corporation, and the certificate of incorporation did not men- 
 tion any qualifications for directors. Question arises as to the 
 validity of A's election. What do you say? 
 
 A. The election is invalid, because sec. 25 of the Stock Corp. 
 Law, provides in part that: "Each director shall be a stock- 
 holder unless otherwise provided in the certificate, or in a by- 
 law adopted by a stockholders' meeting." 
 
 Q. The board of directors of the X Corporation borrowed 
 $25,000 upon the notes of the corporation. The corporation 
 had no surplus profits. The money so borrowed was used for 
 the purpose of making dividends upon the capital stock of the 
 corporation, pursuant to a resolution of the board of directors, 
 three of the ten directors dissenting. Discuss the legality of 
 this act. Against whom, if any, can a liability therefor be en- 
 forced? 
 
 A. This question is fully answered by sec. 28 of the Stock 
 Corp. Law, as follows: "The directors of a stock corporation 
 
CORPORATIONS 153 
 
 shall not make dividends, except from the surplus profits arising 
 from the business of such corporation, nor divide, withdraw or in 
 any way pay to the stockholders or any of them, any part of 
 the capital of such corporation, or reduce its capital stock, ex- 
 cept as authorized by law. In case of any violation of the pro- 
 visions of this section, the directors under whose adminstra- 
 tion the same may have happened, except those who may have 
 caused their dissent therefrom to be entered at large upon the 
 minutes of such directors at the time, or were not present when 
 the same happened, shall jointly and severally be liable to the 
 corporation and to the creditors thereof to the full amount of 
 any loss sustained by such corporation or its creditors respec- 
 tively by reason of such withdrawal, division or reduction. But 
 this section shall not prevent a division and distribution of the 
 assets of any such corporation remaining after the payment of 
 all its debts and liabilities upon the dissolution of such corpora- 
 tion or the expiration of its charter; nor shall it prevent a cor- 
 poration from accepting shares of its capital stock in the com- 
 plete or partial settlement of a debt owing to the corporation, 
 which by the board of directors shall be deemed to be bad or 
 doubtful." See Dykeman v. Keeney, 16 App. Div. 131, afif'd in 
 160 N. Y, 677. 
 
 Q. It is provided by the by-laws of a corporation that the 
 manager shall not have the power to contract debts above the 
 amount of $1,000 without a vote of the board of directors. 
 B, the manager, in violation of this provision of the by-laws, 
 contracts with the X Company for certain goods to the amount 
 of $5,000. The corporation refuses to receive or pay for the 
 goods, and upon being sued sets up as a defense that B ex- 
 ceeded his authority. Is the corporation liable? 
 
 A. The corporation is liable, as the act was within the ap- 
 parent scope of B's authority. "It follows from the general 
 principle now well settled, to the effect that third persons may 
 act upon the apparent authority conferred by the principal 
 upon the agent, and are not bound by secret limitations or 
 instructions qualifying the terms of the written or verbal 
 
154 CORPORATIONS 
 
 appointment, that the defense based upon the limitation in 
 the by-laws, of which the plaintiff had no knowledge, cannot 
 be sustained. By-laws of business corporations are, as to 
 third persons, private regulations binding as between the cor- 
 poration and its members, but of no force as limitations per se 
 as to third persons of an authority which, except for the by- 
 laws, would be construed as within the apparent scope of 
 the agency." Rathbun v. Snow, 123 N. Y. 343. See also 
 Powers V. Schlicht Co., 23 App. Div. 380, aff'd in 165 N. Y. 662. 
 
 Q. The directors of the X Corporation consisted of five 
 members. When it became necessary for the passing of a 
 resolution authorizing the treasurer to execute certain bonds 
 for the corporation, the secretary prepared the required resolu- 
 tion and went to the residence of each of the directors to have 
 them each assent to the passage of the said resolution, which 
 they did in writing. Thereafter the secretary entered the 
 resolution upon the minutes of the corporation as having been 
 adopted by its board of directors. The treasurer then executed 
 the bonds. What is your opinion as to the validity of the 
 bonds? Answer fully. 
 
 A. The bonds are not valid, as they were not properly au- 
 thorized. The resolution authorizing the treasurer to execute 
 the bonds was improper, in that the assent of the directors 
 was not obtained at a meeting called for that purpose. Cor- 
 porate action can only be had by its governing board acting 
 collectively and not singly, and even though all the members 
 of the board of directors should assent to the resolution, this 
 would not be proper corporate action. Niagara v. Bachman, 
 66 N. Y. 262; Bank v. Church, 109 N. Y. 512. 
 
 Q. A, B and C, directors of the X Corporation, make a 
 contract for the manufacture of certain goods with D, the 
 goods being those which the corporation was incorporated to 
 manufacture and sell. Subsequently the stockholders have a 
 meeting and refuse to accept the contract as that of the cor- 
 poration. The directors side with the stockholders. What 
 are the rights of D? Is the corporation liable? 
 
COBPORATIONS 155 
 
 A. The corporation is liable, as it is bound by the acts of its 
 directors. The directors of a corporation are clothed with all 
 the powers of the corporation, and are authorized to make 
 any contract in its behalf that it is capable of making. Hamil- 
 ton Trust Co. V. Clemes, 163 N. Y. 423. 
 
 Q. A was in the employ of the X Company as manager at a 
 salary of $2,000 per annum; he was hired under written con- 
 tract for two years. At the end of the first year, the X Com- 
 pany was consolidated with the Y Company, and A was thrown 
 out of employment. He brings action against the X Company 
 who defend on the ground that they are not in existence. 
 Judgment for whom and why? 
 
 A. Judgment for the X Company. "When a corporation 
 is sued for services, it has a right to allege and prove as a com- 
 plete defense that when the action was begun the corporation 
 had ceased to exist because of its consolidation with another 
 company, the new company assuming a different name and 
 style." The plaintiff can sue the new company, and follow 
 the assets of the old company in the new company. Copp v. 
 Colorado Iron Co., 29 Misc. 109; Miner v. R. R., 123 N. Y. 
 242. "It is well settled that the effect of a merger is to dis- 
 solve the previous corporation into the new one, and to extin- 
 guish the precedent company." Klein v. E. R. Light Co., 
 37 Misc. 491. 
 
 Q. The X Corporation divides a certain amount of its prop- 
 erty among its shareholders, while various claims of its cred- 
 itors are unliquidated. A, who is one of the creditors, sues the 
 corporation and obtains judgment. He issues execution which 
 is returned unsatisfied. A comes to you for advice. What are 
 his remedies? 
 
 A. A can follow the property into the hands of the stock- 
 holders. "When the property of a corporation has been di- 
 vided among its stockholders before all its debts have been 
 paid, a judgment creditor after the return of an execution 
 unsatisfied, may maintain an action in the nature of a creditor's 
 
156 CORPOBATIONS 
 
 bill against a stockholder to reach whatsoever was so received 
 by hitn. It is immaterial whether he got it by fair agreement 
 with his associates, or by a wrongful act. A creditor is not 
 required to bring a suit on behalf of other creditors who may 
 choose to come in, or to make all stockholders parties to the 
 action. Assets of a corporation are a trust fund for the pay- 
 ment of its debts, and its creditors have a lien thereon and a 
 right to priority of payment over its stockholders." Bartlett v. 
 Drew, 57 N. Y. 587. See also Hurd v. N. Y. C. S. L. Co., 
 167 N. Y. 89; Darcy v. Ferry Co., 196 N. Y. 99; Hazard v, 
 Wight, 201 N. Y. 399. 
 
 Q. A, a creditor for the X Corporation, brings suit against 
 the directors of the corporation for misa,ppropriation of the 
 corporate fimds. The directors, desiring to make restitution, 
 come to you and ask you to hinder and delay the suit until 
 they have an opportunity to do so. They also ask you to 
 defend on the ground that the creditor has no right to bring 
 the suit. What would be your advice to them? 
 
 A. The defense that the creditor has no right to bring the 
 suit is a proper one. The corporation itself is the proper party 
 to bring the action. If it, however, after a demand refuses 
 to do so, a stockholder may sue for himself and on behalf of 
 all other stockholders. The creditor has no right to interfere 
 with the affairs of a going corporation. There is nothing to 
 show that his claim would not be paid. "An action against 
 an officer of a corporation to recover damages for a fraudulent 
 misappropriation and conversion by him of the corporate 
 property, can only be brought by a stockholder in his own 
 name, after application to and a refusal on the part of the 
 corporation to bring the suit. In case of such refusal, the 
 stockholder may bring an action for the benefit of himself 
 and the other stockholders, but must make the corporation 
 a party defendant, alleging in his complaint and proving the 
 refusal." Greaves v. Gough, 69 N. Y. 156. See also Flynn v. 
 R. R. Co., 158 N. Y. 493; O'Connor v. V. P. & P. Co., 184 
 N. Y. 52. 
 
CORPORATIONS 157 
 
 Q. A owns ten shares of stock in the X Stock Corporation. 
 At an election of directors he attempts to cast ten votes, but 
 the person in charge of the election refuses to allow him to do 
 so, claiming that each stockholder is entitled to but one vote. 
 Is this contention valid? What are A's rights? 
 
 A. A can, by a writ of mandamus, compel the officers to 
 permit him to cast ten votes as provided for by sec. 23 of the 
 General Corp. Lav/ (Consolidated Laws, chap. 23), which in 
 part is as follows: "Unless otherwise provided in the certificate 
 of incorporation, every stockholder of record of a stock cor- 
 poration shall be entitled at every meeting of the corporation 
 to one vote for every share of stock standing in his name on 
 the books of the corporation; and at every meeting of a non- 
 stock corporation, every member, unless disqualified by the 
 by-laws, shall be entitled to one vote." 
 
 Q. A client states to you that he is a stockholder and director 
 in a corporation whose annual meeting for the election of di- 
 rectors is about to be held; that he is about to be re-elected 
 a director by the stockholders; that under the by-laws of the 
 corporation a meeting of the new board of directors must be 
 held immediately after the election of the directors by the 
 stockholders; that he will be unable to attend either of said 
 meetings, and desires you to represent him at the meetings of 
 the stockholders and directors, and to vote in his stead at the 
 election of the directors by the stockholders and at the subse- 
 quent meeting of the directors. What would you advise him? 
 
 A. A stockholder may vote by proxy, while a director cannot. 
 Section 26 of the General Corp. Law, covers the question of 
 proxy voting and is as follows : ' ' Every member of a corporation, 
 except a religious corporation, entitled to vote at any meeting 
 thereof may so vote by proxy. No officer, clerk, teller or book- 
 keeper of a corporation formed under or subject to the banking 
 law shall act as proxy for any stockholder at any meeting of 
 such corporation. Every proxy must be executed in writing 
 by the member himself, or by his duly authorized attorney. 
 
158 CORPORATIONS 
 
 No proxy hereafter made shall be vaUd after the expiration of 
 eleven months from the date of its execution unless the member 
 executing it shall have specified therein the length of time it is 
 to continue in force. Every proxy shall be revocable at the 
 pleasure of the person executing it; but a corporation having 
 no capital stock may prescribe in its by-laws the persons who 
 may act as proxies for members, and the length of time for 
 which proxies may be executed." No director or trustee of a 
 corporation can vote at a meeting of the board of directors by 
 proxy. Craig Med. Co. v. Bank, 59 Hun, 561. 
 
 Q. A, the bookkeeper of the X Bank, having a properly 
 executed proxy of B, one of the stockholders of said bank, at- 
 tempts to vote at a meeting of the corporation, when a ques- 
 tion arises as to the validity of the proxy and whether A can 
 vote upon it. State whether or not the proxy is valid. 
 
 A. The proxy is not valid, being expressly prohibited by the 
 General Corp. Law, sec. 26, supra. 
 
 Q. The by-laws of the X Corporation provide that an elec- 
 tion of directors shall be held once a year. The board elected 
 July, 1913, is sued for failing to file an annual report in May, 
 1915, no election having been held in 1914. The directors de- 
 fend on the ground that their terms of oflfice ended July, 1914, 
 and that they are not liable for subsequent acts of the corpora- 
 tion. Is the defense good? 
 
 A. The defense is not good. Section 28 of the General 
 Corp. Law, provides as follows: "If the directors shall not 
 be elected on the day designated in the by-laws or by law, the 
 corporation shall not for that reason be dissolved; but every 
 director shall continue to hold his office and discharge his 
 duties imtil his successor has been elected." Therefore in this 
 case, the directors continuing as such, are liable for the failure 
 to file an annual report. Beardsley v. Johnston, 121 N. Y. 224. 
 
 Q. The by-laws of a corporation provide that a majority of 
 the board of directors, at a meeting duly assembled, shall consti- 
 
CORPORATIONS 159 
 
 tute a quorum for the transaction of its business. The board 
 of directors consisted of five members. At a meeting duly- 
 called, three directors were present; two voted to sell a piece 
 of the corporation's real estate to your client, and one voted 
 against it. Is the title good? Reasons. 
 
 A. Title is good according to the provisions of sec. 34 of the 
 General Corp. Law, which is as follows: "The affairs of every 
 corporation shall be managed by its board of directors, at least 
 one of whom shall be a resident of this state. Unless otherwise 
 provided a majority of the board of directors of a corporation 
 at a meeting duly assembled shall be necessary to constitute a 
 quorum for the transaction of business and the act of a majority 
 of the directors present at a meeting at which a quorum is pres- 
 ent shall be the act of the board of directors. The members 
 of a corporation may in by-laws fix the number of directors 
 necessary to constitute a quorum at a number less than a major- 
 ity of the board, but at least equal to one-third of its number. 
 Subject to the by-laws, if any, adopted by members of a corpora- 
 tion, the directors may make necessary by-laws of the corpora- 
 tion." 
 
 Q. The X Corporation was dissolved, and thereafter the 
 directors of said corporation sued A to recover a debt due by 
 him to the corporation. A demurs on the ground that the 
 directors have no legal capacity to sue. Judgment for whom 
 and why? 
 
 A. Judgment for the directors. Section 35 of the General 
 Corp. Law covers this point, and is as follows: "Upon the dis- 
 solution of any corporation, its directors, unless other persons 
 shall be appointed by the legislature, or by some court of com- 
 petent jurisdiction, shall be the trustees of its creditors, stock- 
 holders or members, and shall have full power to settle its affairs, 
 collect and pay outstanding debts, and divide among the per- 
 sons entitled thereto the money and other property remaining 
 after payment of debts and necessary expenses. Such trustees 
 shall have authority to sue for and recover the debts and prop- 
 
160 CORPORATIONS 
 
 erty of the corporation, by their name as such trustees, and 
 shall jointly and severally be personally liable to its creditors, 
 stockholders or members, to the extent of its property and 
 effects that shall come into their hands." 
 
 Q. The X Corporation is incorporated in 1912 to manufac- 
 ture cigars. It does not begin business until 1915. A question 
 arises as to the existence of the corporation. Give your opinion 
 as to whether or not the X Corporation has a legal existence. 
 
 A. This question is fully answered by section 36 of the Gen- 
 eral Corp. Law, which is as follows: "If any corporation, except 
 a railroad, turnpike, plankroad or bridge corporation, shall not 
 organize and coimnence the transaction of its business or under- 
 take the discharge of its corporate duties within two years 
 from the date of its incorporation, its corporate powers shall 
 cease." See People v. Ballard, 134 N. Y. 269; People ex rel. 
 Hearst v. Ramapo Water Co., 51 App. Div. 145. 
 
 Q. The X Corporation finding that its term of existence is 
 about to expire, comes to you and asks how and in what manner 
 its term of existence may be extended. What would be your 
 advice? 
 
 A. Section 37 of the General Corp. Law covers this point, 
 and is as follows: "Any domestic corporation at any time be- 
 fore the expiration thereof, may extend the term of its existence 
 beyond the time specified in its original certificate of incorpora- 
 tion, or by-law, or in any certificate of extension of corporate 
 existence, by the consent of the stockholders owning two- 
 thirds in amount of its capital stock, or if not a stock corpora- 
 tion, by the coiisent of two-thirds of its members, which con- 
 sent shall be given either in writing or by a vote at a special 
 meeting of the stockholders called for that purpose, upon the 
 same notice as that required for the annual meetings of the 
 corporation; and a certificate under the seal of the corporation 
 that such consent was given by the stockholders in writing, or 
 that it was given by a vote at a meeting as aforesaid, shall be 
 subscribed and acknowledged by the president or vice president, 
 
CORPORATIONS 161 
 
 and by the secretary or an assistant secretary of the corporation, 
 and shall be filed in the office of the secretary of state, and shall 
 be by him duly recorded and indexed in a book specially pro- 
 vided therefor, and a certified copy of such certificate, with 
 the certificate of the secretary of state of such filing and record, 
 or a duplicate original of such certificate, shall be filed and 
 similarly recorded and indexed in the office of the clerk of the 
 county wherein the corporation has its principal place of busi- 
 ness, and shall be noted in the margin of the record of the orig- 
 inal certificates of such corporation, if any, in such offices, and 
 thereafter the term of the existence of such corporation shall 
 be extended as designated in such certificates. The certificate 
 of incorporation of any corporation whose duration is limited 
 by such certificate or by-law, may require that the consent of 
 the stockholders owning to a greater percentage than two-thirds 
 of the stock, if a stock corporation, or of more than two-thirds 
 of the members, if a nonstock corporation, shall be requisite 
 to effect an extension of corporate existence as authorized by 
 this section." 
 
 Q. Testator gives to A the income of 100 shares of stock, 
 and after his (A's) death the shares to go to B. After testa- 
 tor's death, the corporation issues 25 shares of new stock to 
 eat up the surplus profits. To whom does the new stock be- 
 long, A or B? 
 
 A. The shares of stock belong to A, "When a stock divi- 
 dend declared by a corporation, and allotted to shares of its 
 original capital stock, belonging to a testamentary trust es- 
 tate, constitutes as a matter of fact a distribution of accumu- 
 lated earnings or profits, it represents income, and belongs to 
 the fife tenant of the trust estate, as between him and the 
 remainderman. The courts are not concluded from treating 
 such earnings as income, by the form of distribution, as in 
 shares of stock." McLouth v. Hunt, 154 N. Y. 179. There is 
 no substantial distinction as to the ownership between stock 
 and cash dividends. The law is well settled that a cash divi- 
 dend is income and goes to the life tenant. Lowry v. F. L. & 
 11 
 
162 CORPORATIONS 
 
 T. Co., 172 N. Y. 137; Robertson v. Brulatone, 188 N, Y. 301; 
 Matter of Harteau, 204 N. Y. 292. 
 
 Q. A was the owner of stock in the X Corporation. He 
 sells it to B. B makes application to the officers of the cor- 
 poration to issue to him a certificate. They refuse on the 
 ground that the corporation has a large claim against A. Rights 
 of B and why? Answer fully. 
 
 A. The corporation can only refuse a transfer of the stock 
 when sec. 51 of the Stock Corp. Law is written or printed 
 upon the certificate of stock. This section is as follows: "If a 
 stockholder shall be indebted to the corporation, the directors 
 may refuse to consent to a transfer of his stock until such 
 indebtedness is paid, provided that a copy of this section is 
 written or printed upon the certificate of stock." Irrespective 
 of the question of indebtedness, it is well settled that an equi- 
 table action will lie to compel a transfer on its books by a cor- 
 poration of shares of its capital stock to the owner of the same. 
 Cushman v. Thayer Mfg. Co., 76 N. Y. 365. In that case 
 the court said : " It is easy to see that the party may have be- 
 come the owner or purchaser of stock in a corporation, which 
 he desires to hold as a permanent investment, which may be 
 at the time of but little value, in fact without any market 
 value whatever, and its real worth may consist in the prospec- 
 tive rise which the owner has reason to anticipate will follow 
 from facts within his knowledge. To say that the holder shall 
 not be entitled to the stock, because the corporation, without any 
 just reason, refuses to transfer it, and that he shall be left to 
 pursue the remedy of an action for damages in which he can 
 recover only a nominal amount, would estabhsh a rule which 
 must work great injustice in many cases, and confer a power 
 to corporate bodies which has no sanction in the law." 
 
 Q. A, having recovered judgment against the X Corpora- 
 tion, wishes to bring suit against certain stockholders thereof 
 and desires to know their names. He applies to the corpora- 
 tion for leave to inspect its books, but the corporation refuses 
 his request. A comes to you for advice. What are his rights? 
 
CORPORATIONS 163 
 
 A. He can compel the corporation to allow him to inspect 
 its books, for sec. 32 of the Stock Corp. Law provides as follows: 
 "Every stock corporation shall keep at its office correct books 
 of account of all its business and transactions, and a book to be 
 known as the stock book, containing the names alphabetically 
 arranged, of all persons who are stockholders of the corporation, 
 showing their places of residence, the number of shares of 
 stock held by them respectively, the time when they respec- 
 tively became the owners thereof, and the amount paid thereon. 
 The stock book of every such corporation shall be open daily, 
 during at least three business hours, for the inspection of its 
 stockholders and judgment creditors, who may make extracts 
 therefrom. No transfer of stock shall be valid as against the 
 corporation, its stockholders and creditors for any purpose 
 except to render the transferee liable for the debts of the cor- 
 poration to the extent provided for in this chapter, until it 
 shall have been entered in such book as required by this sec- 
 tion, by an entry showing from and to whom transferred. The 
 stock book of every such corporation and the books of accoimt of 
 every bank shall be presumptive evidence of the facts therein 
 so stated in favor of the plaintiff, in any action or proceeding 
 against such corporation or any of its officers, directors or 
 stockholders. Every corporation that shall neglect or refuse 
 to keep or cause to be kept such books, or to keep any book 
 open for inspection as herein required, shall forfeit to the 
 people the sum of fifty dollars for every day it shall so neglect 
 or refuse. If any officer or agent of any such corporation shall 
 willfully neglect or refuse to make any proper entry in such 
 book or books, or shall neglect or refuse to exhibit the same, 
 or allow them to be inspected and extracts taken therefrom 
 as provided in this section, the corporation and such officer 
 or agent shall each forfeit and pay to the party injured a pen- 
 alty of fifty dollars for every such neglect or refusal, and all 
 damages resulting to him therefrom." "A stockholder has 
 the right to inspect the stock book of the corporation during 
 business hours with his attorney or other person having knowl- 
 edge of such affairs. Mandamus will Ue to compel the inspec- 
 tion of books." People ex rel. Clason v. Nassau Ferry Co., 
 
164 CORPORATIONS 
 
 86 Hun, 128. See also Matter of Steinway, 159 N. Y. 250; 
 People ex rel. Callanan v. R. R. Co., 106 App. Div. 349; People 
 ex rel. Fennelly v. Aim. Copper Co. & Nat. City Bank, 110 
 App. Div. 892, aff'd in 184 N. Y. 578; Henry v. Babcock & 
 Wilcox Co., 196 N. Y. 302. 
 
 Q. The directors of the X Corporation fail to file an annual 
 report as prescribed by law. B, a creditor, sues one of the 
 directors upon a debt which accrued subsequent to the failure 
 of the directors to file their report. The director demurs on 
 the ground that B must first sue the corporation, and further- 
 more that he must join the other directors as defendants with 
 him. Judgment for whom and why? 
 
 A. Judgment for B. "Under sec, 30 of the Stock Corp. 
 Law of 1892 (now Consolidated Laws, chap. 59, sec. 34) com- 
 pelling every corporation, except moneyed or railroad cor- 
 porations to furnish a complete and accurate statement of its 
 financial condition and responsibility at the commencement 
 of each year, an action in case of the violation of this section 
 can be maintained against any one director thereof, and the 
 recovery of a judgment against the corporation and the issue 
 of an execution thereon and its return unsatisfied, are not 
 conditions precedent to the bringing of such actions." Mil- 
 som Co. V. Baker, 16 App. Div. 581. 
 
 Q. A sells 100 shares of stock to B. B demands that the 
 corporation place his name upon the books as a shareholder, 
 which is refused by the corporation. Has the corporation a 
 right to refuse to recognize the demands of B? If so, why so? 
 If not, why not? Give reasons. 
 
 A. The corporation has no right to refuse a transfer on the 
 books of the corporation, unless the stock was not fully paid up. 
 Section 50 of the Stock Corp. Law provides in part as follows: 
 "No share shall be transferable until all previous calls thereon 
 shall have been fully paid in." If the stock has been fully paid 
 and the corporation refuses a transfer on the books of the 
 corporation, an action to compel them to do so will lie. Cush- 
 
CORPORATIONS 165 
 
 man v. Thayer Manufacturing Co., 76 N. Y. 365. " It was 
 expressly held in People ex rel. Krohn v. Miller, 39 Hun, 557, 
 aff'd 114 N. Y. 636, and in Matter of Shipley, 16 Johns. 484, 
 and in People ex rel. Jenkms v. Coal Co., 1 Abb. Pr. 128, that 
 mandamus would not lie to compel the transfer of stock upon 
 the books of a corporation, and our attention has not been 
 called nor have we been able to find any authoritative decision 
 in this state to the contrary." Houghton, J., in People ex 
 rel. Rottenberg v. Utah Gold & Copper Co., 135 App. Div. 
 419. In such case, the proper remedy is by action. 
 
 Q. A sells certain property to the X Corporation for $5,000 in 
 shares, the property being necessary for the corporate purposes. 
 Subsequently the corporation issues a call on said stock claim- 
 ing that the value of the property was $3,500. A refuses to 
 pay and consults you. What are his rights? 
 
 A. He can hold the stock as fully paid stock, and need not 
 pay any calls thereon, according to sec. 55 of the Stock Corp. 
 Law, which is as follows: "No corporation shall issue either 
 stock or bonds except for money, labor done or property 
 actually received for the use and lawful purposes of such cor- 
 poration. Any corporation may purchase any property au- 
 thorized by its certificate of incorporation, or necessary for 
 the use and lawful pmposes of such corporation, and may 
 issue stock to the amount of the value thereof in payment 
 therefor, and the stock so issued shall be full paid stock and 
 not hable to any further call, neither shall the holder thereof 
 be liable for any further payment under any of the provisions 
 of this chapter; and in the absence of fraud in the transaction 
 the judgment of the directors as to the value of the property 
 purchased shall be conclusive; and in all statements and re- 
 ports of the corporation, by law required to be published or 
 filed, this stock shall not be stated or reported as issued for 
 cash paid to the corporation, but shall be reported as issued 
 for property purchased." 
 
 Q. A corporation engaged in the manufacture of clothing 
 becomes insolvent, and executes a chattel mortgage on its 
 
166 CORPORATIONS 
 
 machines as collateral security for its coimnercial paper in 
 order to give preference to the holders thereof. Is this mort- 
 gage valid as against the other creditors? 
 
 A. The mortgage is void as against the other creditors, as 
 preferences by an insolvent corporation are not permitted 
 by sec. 66 of the Stock Corp. Law, which is as follows: 
 "No corporation which shall have refused to pay any of its 
 notes or other obligations, when due, in lawful money of the 
 United States, nor any of its officers or directors, shall transfer 
 any of its property to any of its officers, directors or stock- 
 holders, directly or indirectly, for the payment of any debt, 
 or upon any other consideration than the full value of the 
 property paid in cash. No conveyance, assignment or transfer 
 of any property of any such corporation by it or by any officer, 
 director or stockholder thereof, nor any payment made, judg- 
 ment suffered, lien created or security given by it or by any 
 officer, director or stockholder when the corporation is insol- 
 vent or its insolvency is imminent, with the intent of giving a 
 preference to any particular creditor over other creditors of 
 the corporation, shall be valid, except that laborers' wages 
 for services shall be preferred claims and be entitled to pay- 
 ment before any other creditors out of the corporation assets 
 in excess of valid prior liens or incumbrances. No corporation 
 formed under or subject to the banking, insurance or railroad 
 law shall make any assignment in contemplation of insolvency. 
 Every person receiving by means of any such prohibited act 
 or deed any property of the corporation shall be bound to 
 account' therefor to its creditors or stockholders or other trus- 
 tees. No stockholder of any such corporation shall make any 
 assignment or transfer of his stock therein to any person in 
 contemplation of its insolvency. Every transfer or assignment 
 or other act done in violation of the provisions of this section 
 shall be void." 
 
 Q. The X Corporation becomes insolvent and makes an 
 assignment in which two of its directors are preferred. Two 
 of the creditors put in their claims before the referee, and 
 
CORPORATIONS 167 
 
 then move before the referee to reject the preferred claims, 
 on the ground of the invaUdity of the preference. What are 
 the rights of the parties, and should the motion have been 
 made before the referee? 
 
 A. The preference is void, and the referee has power to pass 
 on its invalidity, it being a violation of sec. 66 of the Stock 
 Corp. Law, supra. See Berwind Co. v. Ewart, 11 Misc. 490, 
 aff'd90Hun, 60. 
 
 Q. An insolvent manufacturing corporation owes a bona 
 fide debt to A, one of the directors, to which it has no defense. 
 A sues and recovers judgment by default, levies upon the 
 property of the corporation and sells it to pay his debt. A 
 receiver is appointed and finds no tangible assets of the cor- 
 poration. What are the rights of the receiver in the premises, 
 if any, and how would you enforce them? 
 
 A. The receiver can have the judgment vacated. In Kings- 
 ley V. Bank, 31 Hun, 329, it was held: "That as A was a stock- 
 holder in, and a director of the company, it was his duty to 
 do all in his power to carry out the object and purpose of the 
 law, and secure equahty of payment among the creditors of 
 the company; that the entry of judgment by him in his own 
 favor against the company, while it was insolvent, and the 
 levy made and the execution issued thereon was a violation 
 of such duty, that the judgment should be vacated and an- 
 nulled on the receiver's application." See also Cole v. M. I. 
 Co., 133 N. Y. 164; Munson v. Iron Works, 37 App. Div. 207. 
 
 (Note.) In Throop v. Hatch Co., 125 N. Y. 530, it was said by the court: 
 "That sec. 48 (now sec. 66) prohibits the acquisition by a director of an in- 
 solvent corporation who is also a creditor, through process of attachment, 
 of a preferential lien on the corporate assets; and this although the writ was 
 issued in hostility to, and not in collusion with the corporation." 
 
 Q, A, the director of the X Corporation, and certain creditors 
 thereof, agree that the creditors should sue the corporation by 
 service upon A, and that A, the director, would not report the 
 service to the officers and other directors, and that the cred- 
 
168 COBPORATIONS 
 
 itors might take judgment. This was done as agreed. Is there 
 any valid objection to the judgment? 
 
 A. There is no objection to the judgment. The case of 
 Varnum v. Hart, 119 N. Y. 101, is exactly in point; it was there 
 held: "That the statute was not violated, as neither creditor 
 nor director was under any statutory restraint; and that there 
 was no violation of the statute by a failure of the director to 
 disclose the fact of the service of the papers upon him, whereby 
 a debt really existing and honestly due obtained a preference. 
 Neither the director who was served nor the other officers if 
 they had known of the service of the papers were bound to 
 interpose a defense; and whatever was done or authorized to be 
 done or omitted, the fact remains that there was no assignment 
 or transfer of the property, and hence no violation of the stat- 
 ute. An insolvent corporation is not obliged to defend any 
 suit brought against it for a valid debt, against which there is 
 no vaUd legal defense, for the sole purpose of defeating a pref- 
 erence; it may suffer default, and thus allow a preference." 
 This case was cited with approval in French v. Andrews, 145 N. 
 Y. 445, and in Lopez v. Campbell, 163 N. Y. 340. In this last 
 case, it was held that the rule laid down in Varnum v. Hart, 
 supra, has not been changed, even though sec. 48 (now sec. 66) 
 has been amended. 
 
 Q. A, the president of the X Corporation, knowing that it 
 is insolvent, sends a message from his wife to her attorney 
 directing him to bring suit to obtain judgment on a past due 
 promissory note of $2,000, given by the corporation to her for 
 value. The attorney did as requested and recovered judgment 
 by default. A question arises as to the validity of this judg- 
 ment. What do you say? 
 
 A. The judgment is valid, as it was not procured in violation 
 of see. 66 of the Stock Corp. Law. "A judgment recovered 
 against an insolvent corporation is not void under the statute 
 unless recovered by the active procurement of an oflBcer of 
 such corporation. The fact that the president conveyed a 
 
CORPORATIONS 169 
 
 message from his wife to the attorney for the corporation who 
 was not an officer thereof, asking him to commence a suit in her 
 name against the company, does not establish a violation of 
 the statute." Dickson v. Mayer, 35 State Rep. 482. 
 
 (Note.) "If the corporation or its oflScers performed any act by which a 
 creditor was enabled to obtain a judgment to which he was not entitled, or 
 omitted to interpose any legal defense it had to its claim, and thus suffered 
 an improper judgment against the corporation, the judgment so suffered 
 would be invalid. But where a creditor has a just claim to which the cor- 
 poration has no defense, and he adopts the ordinary process and procedure 
 of the court to enforce it, which results in a judgment by default, it cannot 
 be properly held to be within the condemnation of the statute." Martin, J., 
 in Lopez v. Campbell, 163 N. Y. 346. See also Jefferson Bank v. Townley, 
 159 N. Y. 490. 
 
 Q. The X Corporation issues full paid up stock to A. In fact 
 A has only paid 20% of the par value of said stock. The cor- 
 poration becomes insolvent and a receiver is appointed. The 
 receiver calls upon A to pay the remaining 80% of his stock. 
 A refuses, and the receiver brings an action to compel him to 
 do so. Can the action be maintained? 
 
 A. Yes. Section 56 of the Stock Corp. Law provides in 
 part as follows: "Every holder of capital stock not fully paid, 
 in any stock corporation shall be personally liable to its cred- 
 itors to an amount equal to the amount unpaid on the stock 
 held by him, for the debts of the corporation contracted while 
 such stock was held by him." Thompson v. Knight, 74 App. 
 Div. 316; Rathbone v. Ayer, 84 App. Div. 186; Lang v. Lutz, 
 180 N. Y. 254. y^^^- t o^^ ^-.v^e/ y^.. 
 
 Q. A does certain painting for the X Corporation, which 
 afterwards becomes insolvent. A, not having been paid for 
 his work, sues B, one of the stockholders. Can the action be 
 maintained? If you had been A's attorney, what would you 
 have done? 
 
 A. The action cannot be maintained without first exhaust- 
 ing the remedies against the corporation, and otherwise comply- 
 ing with sec. 57 of the Stock Corp. Law, which- is as follows: 
 
170 CORPORATIONS 
 
 "The stockholders of every stock corporation shall jointly and 
 severally be personally liable for all debts due and owing to any 
 of its laborers, servants or employees other than contractors, 
 for services performed by them for such corporation. Before 
 such laborer, servant or employee shall charge such stock- 
 holder for such services, he shall give him notice in writing 
 within thirty days after the termination of such services, that 
 he intends to hold him liable, and shall commence an action 
 therefor within thirty days after the retiu-n of an execution un- 
 satisfied against the corporation upon a iudgment recovered 
 against it for services." Section 59 of the Stock Corp. Law 
 provides as follows: "No action shall be brought against a 
 stockholder for a debt of the corporation until judgment there- 
 for has been recovered against the corporation, and an execu- 
 tion thereon has been returned unsatisfied in whole or in part, 
 and the amount due on such execution shall be the amount re- 
 coverable, with costs against the stockholder. No stockholder 
 shall be personally liable for any debt of the corporation not pay- 
 able within two years from the time it is contracted, nor unless 
 an action for its collection shall be brought against the corpora- 
 tion within two years after the debt becomes due; and no action 
 shall be brought against a stockholder after he shall have ceased 
 to be a stockholder, for any debt of the corporation, unless 
 brought within two years from the time he shall have ceased to 
 be a stockholder." See Bank v. Dillingham, 147 N. Y. 603; 
 Rubber Co. v. Agnew, 194 N. Y. 166. 
 
 Q. A, an officer of a corporation, lends to the corporation 
 $10,000^ and takes a bond of the corporation as security. The 
 corporation at that time was solvent. Six months later, the 
 corporation becomes insolvent and a receiver is appointed. A 
 attempts to prove his claim on the bond before the receiver. 
 The claim is disallowed. A takes legal steps to enforce his 
 claim with the other creditors. Can he succeed? 
 
 A. Yes. A had a right to secure himself for the advances 
 made, and in the absence of proof of fraud, or of an improper 
 and undue advantage taken, or the insolvency of the company 
 
COKPORATIONS 171 
 
 at the time he took the bond, to prove them for the full amount, 
 and to share in the distribution up to the amount of his claim. 
 There is nothing inconsistent with his position as officer to loan 
 money to the corporation, and to secure himself for the loan 
 made, therefore he has equal rights with the other creditors. 
 Duncomb v. R. R., 88 N. Y. 1. 
 
 (Note.) "A transaction whereby directors, in good faith and in the belief 
 that the corporation was solvent, made a loan to it and accepted an assign- 
 ment of securities from it as collateral, pursuant to a plan to reheve it of its 
 financial difficulties, is not contrary to public policy and is valid, although 
 the corporation was, in fact, insolvent at the time the loan was made. When 
 the validity, as against other creditors, of a transaction between a corpora- 
 tion and its directors, depends upon their belief in its solvency, their actual 
 knowledge of its condition, as distinguished from that imputed to them by 
 reason of their relation to it as directors, is of determining importance." 
 Converse v. Sharp, 161 N. Y. 571. 
 
 Q. A purchased certain real estate of the X Corporation 
 which at the time was insolvent. He paid full value therefor, 
 and had no knowledge of the financial condition of the said 
 corporation. A receiver is appointed and he brings action 
 against A to recover the real estate. Can he recover? 
 
 A. No. A was a bona fide purchaser for value. "The assets 
 of a corporation are a trust fund for the payment of its debts 
 upon which the creditors have an equitable lien, both as against 
 the stockholders and all transferees, except those purchasing 
 in good faith and for value." Cole v. M. I. Co., 133 N. Y. 164. 
 See also Ward v. City Trust Co., 112 N. Y. 73. 
 
 Q. State what is necessary for a foreign corporation to do 
 business in this state. 
 
 A. A certificate from the secretary of state must be obtained 
 showing that it has complied with all the requirements of sees. 
 15 and 16 of the General Corp. Law. A license fee as provided 
 for in Tax Law, sec. 181 (Consohdated Laws, chap. 60), must 
 be paid. 
 
 Q. There is a defect in the certificate of incorporation of the 
 X Corporation. How would you correct said defect? 
 
172 CORPOEATIONS 
 
 A. Apply to the supreme court upon notice to the attorney- 
 general for an order amending the certificate of incorporation. 
 This is provided for in sec. 7 of the General Corp. Law. 
 
 Q. A was the owner of twenty-five shares of the capital 
 stock of the X Corporation, for which he held a certificate. 
 The certificate was destroyed by fire, and A made application 
 to the corporation to issue to him a new certificate, which was 
 refused. State what proceedings you would take, if any, to 
 secure A a new certificate. 
 
 A. Apply to the supreme court upon notice to the corpora- 
 tion for an order compelling the corporation to issue a new 
 certificate. This is provided for by sees. 67 and 68 of the Stock 
 Corp. Law. 
 
 Q. At a meeting of the X Corporation, the stockholders 
 owning 55% of the capital stock vote to purchase certain ma- 
 chinery from one of the stockholders; the said machinery 
 being necessary for the business of the company. A, one of 
 the minority stockholders, comes to you and asks you to bring 
 proceedings to restrain the purchase of the machinery. Can 
 you do so? 
 
 A. No. In the absence of fraud, a minority shareholder 
 cannot object to the action of the majority. Gamble v. I. C. 
 W. Co., 123 N. Y. 91; Farmers' L. & T. Co. v. N. Y. C. N. R. 
 Co., 150 N. Y. 410. "As a general rule courts have nothing 
 to do with the internal management of business corporations. 
 Whatever may lawfully be done by the directors or stock- 
 holders, acting through majorities prescribed by law, must of 
 necessity be submitted to by the minority, for corporations 
 can be conducted upon no other basis. All questions within 
 the scope of the corporate powers which relate to the policy 
 of administration, to the expediency of proposed measures or 
 to the consideration of contracts, provided it is not so grossly 
 inadequate as to be evidence of fraud, are beyond the province 
 of the courts. The minority directors or stockholders cannot 
 come into court upon allegations of a want of judgment or 
 
CORPORATIONS 173 
 
 lack of efficiency on the part of the majority and change the 
 course of administration. Corporate elections furnish the 
 only remedy for internal dissensions, as the majority must 
 rule so long as it keeps within the powers conferred by the char- 
 ter." Vann, J., in Flynn v. Brooklyn City R. R., 158 N. Y. 
 507. See also Schwab v. Potter Co., 194 N. Y. 415. 
 
 Q. The president of the X Corporation is voted an extra 
 compensation by the directors of said corporation for services 
 performed. A, a stockholder, objecting, comes to you for 
 advice. What are his rights, if any? 
 
 A. An officer of a corporation, in the absence of any agree- 
 ment that as such he shall receive a salary for his services, is 
 not entitled to any compensation, for acts done in the legiti- 
 mate, discharge of the duties of his office, and any money so 
 paid to him by the directors, the latter become liable therefor. 
 Barril v. Callender Co., 50 Hun, 257; Mather v. Eureka Mower 
 Co., 118 N. Y. 629. 
 
 Q. A was the president and director of the Y Stock Corpora- 
 tion. There were several litigations pending against the com- 
 pany, and A, who was also a lawyer, was engaged to defend 
 them by the board of directors. There was no resolution of 
 the board of directors to employ or compensate A for his serv- 
 ices as attorney, nor did the by-laws of the company entitle 
 him to a salary for his services. A makes claim against the 
 company for $2,000, the reasonable value for his services, which 
 the company refuses to pay. Can A enforce his claim, and why? 
 
 A. Yes. "The president and director of a corporation who 
 renders services thereto outside of his official duties, upon an 
 employment of the directors upon a promise of compensation, 
 is entitled to recover the value of such services and the ex- 
 penses incurred during their rendition, although he, is not 
 entitled by the by-laws to any salary for his official services 
 and there is no express resolution of the board of directors 
 containing an agreement to employ and compensate him." 
 
174 coeporations 
 
 Bagley v. R. R. Co., 165 N. Y. 179. See also F. L. & T. Co. v. 
 H. R. R. Co., 152 N. Y. 251. 
 
 Q. A, the treasurer of the X Corporation, paid his individual 
 debt to B in the sum of $5,000 with a check of the corporation. 
 B deposited the check which was paid in due course. A at 
 the time of the giving of the check was a defaulter and had no 
 authority to use or give checks of the corporation for this 
 purpose. B took the check in good faith. The company, dis- 
 covering the facts, demands the amount of the check from B, 
 and upon B's refusal to pay, brings action. Judgment for 
 whom and why? 
 
 A. Judgment for the corporation. "The payee of corporate 
 checks who receives them from the treasurer of the corporation 
 in payment of a debt not owed by the corporation, but in pay- 
 ment of one which he has treated as the treasurer's individual 
 debt, when the latter has no actual or apparent authority 
 to issue such checks either in payment of his own debt or that 
 of a third person, is chargeable with notice of his incapacity 
 to issue them, and is bound to inquire as to the real situation, 
 and where he accepts the checks without question and draws 
 the money thereon, he is liable in an action by the corporation 
 to recover the amount paid as money received by him to its 
 use." Rochester & C. T. R. Co. v. Paviour, 164 N. Y. 281. 
 So also Hathaway v. County of Delaware, 186 N. Y. 368. 
 
 Q. The directors of the X Corporation duly authorized the 
 officers thereof to execute its promissory note for a loan to the 
 corporation, which was accordingly done. The corporation 
 agreed to return the amount of the loan with interest at the rate 
 of 10%. In a suit upon the note against the corporation, it sets 
 up the defense of usury. Is this defense good? Give reasons. 
 
 A. No. A corporation cannot set up the defense of usury. 
 "An accommodation indorser of a promissory note made by a 
 manufacturing corporation, and negotiated for its benefit, 
 cannot defend the same on the ground of usury. The act of 
 1850 (eh. 172, Laws of 1850) prohibiting a corporation from 
 
COHPORATIONS 175 
 
 interposing the defense of usury, includes the collateral con- 
 tracts of individuals as sureties, guarantors or indorsers for 
 the corporation." Rosa v. Butterfield, 33 N. Y. 664; Stewart 
 V. Bramhall, 74 N. Y. 85. The General Business Law, sec. 374, 
 is a re-enactment of chap. 172, Laws of 1850, and provides 
 that no corporation shall hereafter interpose the defense of 
 usury in any action. See also Weinreb v. Coleman Stable Co., 
 70 Misc. 535, where it was held that: "Usury is not a defense 
 to an action against the accommodation indorser of a note inade 
 by a corporation and negotiated for its benefit." 
 
 Q. How would you incorporate a stock corporation? State 
 the requirements. 
 
 A. This is provided for in sec. 2 of the Business Corp. Law 
 (Consolidated Laws, chap. 4). Three or more persons may 
 form a corporation by signing, acknowledging and filing a 
 certificate which shall contain: 1. The name of the proposed 
 corporation. 2. The purpose or purposes for which it is formed. 
 3. The amount of the capital stock, and if any portion be 
 preferred stock, the preferences thereof. 4. The number of 
 shares of which the capital stock shall consist, each of which 
 shall not be less than five nor more than one hundred dollars, 
 and the amount of capital not less than five hundred dollars, 
 with which said corporation will commence business. 5. The 
 city, village or town in which its principal business office is to 
 be located. If it is to be located in the City of New York, the 
 borough therein in which it is to be located. 6. Its duration. 
 7. The number of its directors, not less than three. 8. The 
 names and post-office addresses of the directors for the first 
 year. 9. The names and post-office addresses of the sub- 
 scribers to the certificate, and a statement of the number of 
 shares of stock of which each agrees to take in the corporation. 
 
 A fee for fifing must be paid to the secretary of state, and 
 an organization tax must be paid to the state treasurer as 
 provided for in sec. 180 of the Tax Law (Consofidated Laws, 
 chap. 60). The tax is one-twentieth of one per cent. 
 
CHAPTER VIII 
 
 Criminal Law 
 
 Q. State the legal presumption as to the responsibility of 
 an infant for his crimes. 
 
 A. Section 816 of the Penal Law provides as follows: "A child 
 under the age of seven years is not capable of committing crime." 
 Section 817 further provides in part as follows: "A child of the 
 age of seven years, and under the age of twelve, is presumed to 
 be incapable of crime, but the presumption may be removed by 
 proof that he had sufficient capacity to understand the act or 
 neglect charged against him and to know its wrongfulness." 
 Otherwise infants are liable for their crimes, the same as adults. 
 
 Q. A was indicted for murder in the first degree; he admitted 
 the killing, but offered evidence to show that when he committed 
 the deed, he was in the state of voluntary intoxication, and 
 offered no other evidence. The evidence is objected to as in- 
 competent and irrelevant. Was the evidence admissible? If 
 so, for what purpose, and what is the general rule? State 
 whether or not voluntary intoxication is a defense to a crime 
 or not. 
 
 A. Voluntary intoxication is no defense to a crime, but is 
 admissible in evidence to show intent. Section 1220 of the 
 Penal Law covers this question, and is as follows: "No act 
 committed by a person while in a state of voluntary intoxica- 
 tion, shall be deemed less criminal by reason of his having been 
 in such condition. But whenever the actual existence of any 
 particular purpose, motive or intent is a necessary element to 
 constitute a particular species or degree of crime, the jury may 
 take into consideration the fact that the accused was intoxi- 
 cated at the time, in determining the purpose, motive or intent 
 176 
 
CRIMINAL LAW 177 
 
 with which he committed the act." See People v. Cory, 148 
 N. Y. 476; People v. Krist, 168 N. Y. 19. 
 
 Q. A holds B, whUe C, A's wife, takes B's pocketbook con- 
 taining $2,000 "from him (B). A and C are subsequently in- 
 dicted for robbery. At the trial, the attorney for the prisoners 
 asks the court to discharge the wife on the ground that the act 
 was committed in the presence of her husband, and therefore she 
 was not responsible. What should the ruling of the court be? 
 
 A. The motion should be denied, as the wife is liable, she 
 having assisted in the commission of the crime. This is pro- 
 vided for in sec. 1092 of the Penal Law, which is as follows: 
 "It is not a defense to a married woman charged with crime, 
 that the alleged criminal act was committed by her in the 
 presence of her husband." See Seller v. People, 77 N. Y. 411; 
 Goldstein v. People, 82 N. Y. 231; People v. Ryland, 97 N. Y. 
 126. 
 
 Q. A is given a $20 bill by his employer with instructions to 
 go to the market and purchase certain goods. On the way he 
 is met by B who induces him to misappropriate the money.- 
 Of what crime, if any, is B guilty? 
 
 A. B is guilty of petit larceny, as the amount misappropri- 
 ated is less than 150. As B aided and abetted, he is deemed a 
 principal within the provisions of sec. 2 of the Penal Law, which 
 in part is as follows: "A person concerned in the commission 
 of a crime, whether he directly commits the act constituting 
 the offense or aids and abets in its commission and whether 
 present or absent, and a person who directly or indirectly 
 counsels, commands, induces or procures another to commit 
 a crime, is a principal." This section abolishes the common-law 
 distiaction between accessories before and after the fact, the 
 former being included in the definition of a principal. People 
 V. Bliven, 112 N. Y. 82. Accessory, corresponding to accessory 
 after the fact, is defined in sec. 2 of the Penal Law as follows : 
 "A person who, after the commission of a felony, harbors, 
 conceals, or aids the offender, with intent that he may avoid 
 12 
 
17$ CHIMIN AL LAW 
 
 or escape from arrest, trial, conviction, or punishment, having 
 knowledge or reasonable groimd to believe that such offender 
 is liable to arrest, has been arrested, is indicted or convicted, 
 or has committed a felony, is an accessory to the felony." In 
 this case, even if B were not held to come within the statutory 
 definition of a principal, he would yet be liable, as petit larceny 
 is a misdemeanor (sec. 1299, Penal Law), and all are considered 
 as principals in misdemeanors, according to sec. 27 of the Penal 
 Law, which is as follows: "A person who commits or partici- 
 pates in an act which would make him an accessory if the 
 crime committed were a felony, is a principal and may be in- 
 dicted and punished as such, if the crime be a misdemeanor." 
 
 Q. A, who is desirous of having B murdered, induces B's 
 servant to administer poison to him. A did not purchase the 
 poison nor was he present when the servant administered the 
 poison to B which caused his death. Of what crime, if any, is 
 A guilty? 
 
 A. A is guilty of murder. One who induces another to com- 
 mit a crime although not present is deemed a principal, accord- 
 ing to sec. 2 of the Penal Law, supra. People v. Patrick, 182 
 N. Y. 142. 
 
 Q. A and B broke into the dwelling house of C for the pur- 
 pose of robbing the same.. While A was engaged in robbing 
 and B in watching, they were discovered and a struggle ensued 
 in which several shots were fired by both A and B; one of the 
 shots killed C, Upon the trial of B for murder his attorney 
 asks for an acquittal on the ground that it cannot be shown 
 who fired the fatal shot. What should be the decision of the 
 court? 
 
 A, The motion should be denied. "The defendant and his 
 confederate were conspirators engaged in the commission of a 
 felony, they were engaged in a common crime and the homicide 
 was within the ccSnmon purpose. Both were principals through- 
 out, and what one did both did in the eye of the law; if either 
 
CRIMINAL LAW 179 
 
 fired the shot that resulted fatally, both are equally guilty of 
 murder." People v. Giro, 197 N. Y. 152. 
 
 Q. A was walking down Broadway. B puts his hand in A's 
 pocket, intending to steal what was in the pocket. At the trial, 
 it appears that there was nothing in the pocket. Is B guilty of 
 a crime, and if so, what? 
 
 A. B is guilty of attempting to commit the crime of grand 
 larceny. "The language of the Statute seems to us too plain to 
 admit of doubt and was intended to reach cases where an intent 
 to commit a crime and an effort to perpetrate it although in- 
 effectual, coexisted; whenever the animo furandi exists, followed 
 by acts apparently affording a prospect of success and tending 
 to render the commission of the crime effectual, the accused 
 brings himself within the letter and intent of the Statute. To 
 constitute the crime charged there must be a person from whom 
 the property may be taken; an intent to take it against the 
 will of the owner, and some act performed tending to accom- 
 plish it, and when these things concur, the crime has, we think, 
 been committed whether property could, in fact, have been 
 stolen or not. In such cases the accused has done the utmost 
 to effect the commission of the crime, but fails to accomplish 
 it for some cause not previously apparent to him." Ruger, Ch. 
 J., in People v. Moran, 123 N. Y. 254. Section 2 of the Penal 
 Law provides as follows: "An act done with intent to commit a 
 crime, and tending but failing to effect its commission, is an 
 attempt to commit that crime." 
 
 Q. A with intent to shoot B aimed a loaded pistol at him. 
 A was within shooting distance of B, but before A could do 
 anything further, he was disarmed. Of what crime, if any, 
 was A guilty? 
 
 A. A was guilty of assault in the second degree, because he 
 pointed a loaded pistol at B with latent to do bodily harm, 
 and the crime was completed by the act of pointing the weapon. 
 Section 242 of the Penal Law. People v. Conner, 53 Hun, 353; 
 People V. Ryan, 55 Hun, 214. 
 
180 CBIMINAL LAW 
 
 (Note.) An approach to commit an assault, although not near enough to 
 enable it to be committed, constitutes an attempt to commit the assault. 
 People V. McConnell, 60 Hun, 113. 
 
 Q. A's goods were stolen and thereafter restored to him. 
 B, believing that the goods were in the han^is of the thief, at- 
 tempts to purchase them of C, the agent of A, after the goods 
 had been restored' to A. Of what crime, if any, is B guilty? 
 
 A. B is guilty of no crime. "The proof clearly showed, that 
 the goods which defendant attempted to purchase had lost 
 their character as stolen goods at the time when they were 
 offered to the defendant and when he sought to buy them. In 
 fact the property had been restored to the owners and was 
 wholly within their control and was offered to the defendant 
 by their authority and through their agency. He simply made 
 an effort to purchase certain specific pieces of cloth. He be- 
 lieved the cloth to be stolen property, but it was not such in 
 fact. The purchase therefore, if it had been completely effected, 
 could not constitute the crime of receiving stolen property, 
 knowing it to be stolen, since there could be no such thing as 
 knowledge on the part of the defendant of a non-existent fact, 
 although there might be a beUef on his part that the fact ex- 
 isted. As Mr. Bishop well says, it is a mere truism that there 
 can be no receiving of stolen goods which have not been stolen. 
 (2 Bishop's New Crim. Law, sec. 1140.) It is equally diflScult 
 to perceive how there can be an attempt to receive stolen goods, 
 knowing them to have been stolen, when they have not been 
 stolen in fact." People v. Jaffe, 185 N. Y. 497. 
 
 Q. A in the night time passes through an alley in the rear 
 of the store of B, with the intention of robbing the same. He 
 reconnoiters the premises. He has with him at the time burglar 
 tools, which he does not consider strong enough. He leaves 
 them near the store and goes to a neighboring blacksmith's 
 shop and obtains a crowbar and returns. On his return, a 
 detective who has been watching him, arrests him before he 
 commences to act. Is A guilty of any crime? 
 
CEIMINAL LAW 181 
 
 A. A is guilty of attempting to commit the crime of burglary. 
 "The act of getting the proper instruments, whether from the 
 blacksmith's shop or elsewhere, was as much an act to enable 
 him to commit the offense, as it would have been if he had 
 taken the crowbar for the purpose, which he had happened 
 to find beside the door of the store. In order to constitute an 
 attempt to commit a crime, there must be more than a mere 
 design, there must have been some ineffectual act towards its 
 accomplishment." People v. Lawton, 56 Barb. 126. 
 
 Q. A takes poison intending to end his life. He is taken to a 
 hospital where he recovers. Is he guilty of a crime, and if so, 
 what? Is suicide a crime? 
 
 A. A is guilty of the crime of attempting to commit suicide. 
 Suicide is not a crime. Darrow v. Soc, etc., 116 N. Y. 537. 
 Section 2301 of the Penal Law provides as follows: "Although 
 suicide is deemed a great public wrong, yet from the impossi- 
 bility of reaching the successful perpetrator, no forfeiture is 
 imposed." But an attempt to commit suicide is a felony, 
 according to sees. 2302 and 2303 of the Penal Law, which are 
 as follows: "A person who, with intent to take his own life, 
 commits upon himself an act dangerous to hxmian life, or 
 which if conamitted upon or towards another person and fol- 
 lowed by death as a consequence, would render the perpetrator 
 chargeable with homicide, is guilty of attempting suicide." 
 Section 2303 says: "Every person guilty of attempting suicide 
 is guilty of a felony, punishable by imprisonment in a state 
 prison not exceeding two years, or by a fine not exceeding 
 one thousand dollars, or both." 
 
 (Note.) Section 2304 of the Penal Law says that: "A person who willfully, 
 in any manner, advises, encourages, abets, or assists another person in taking 
 the latter's life, is guilty of manslaughter in the first degree." Section 2305 
 says that: "A person who willfully, in any manner, encourages, advises, assists 
 or abets another person in attempting to take the latter's life, is guilty of a 
 felony." Section 2306 says that: "It is not a defense to a prosecution under 
 either of the last two sections, that the person who took, or attempted 
 to take, his own life, was not a person deemed capable of committing 
 crime." 
 
182 CRIMINAL LAW 
 
 Q. A is charged with the murder of B. A dismembered 
 body is found, but the district attorney cannot prove by direct 
 evidence that it is the body of B; there is sufficient evidence, 
 however, from which a jury can infer that it is the body of B. 
 Upon A's trial, his attorney moves for a dismissal of the case 
 upon the groimd that the district attorney cannot prove by 
 direct proof that the body found is that of B. What should be 
 the ruling of the court? 
 
 A. The. motion should be denied, as the identity of the 
 body found is not a part of the corpus delicti. Section 1041 
 of the Penal Law says: "No person can be convicted of mur- 
 der or manslaughter, unless the death of the person alleged to 
 have been killed, and the fact of killing by defendant, as al- 
 leged, are each established as independent facts; the former 
 by direct proof, and the latter beyond a reasonable doubt." 
 This section has been elaborately discussed in the case of 
 People v. Palmer, 109 N. Y. 110, where it was held that the 
 identity of the person killed need not be established by direct 
 proof; it is only the death of the person alleged to have been 
 killed, must be proven by direct proof, and the killing by de- 
 fendant beyond a reasonable doubt. In the case of Ruloff v. 
 People, 18 N. Y. 179, it was said that: "The death of the per- 
 son alleged to have been killed was not established, but in 
 its place was put the equivocal fact of a sudden and unex- 
 plained disappearance, the evidence might be true and the 
 person alleged to have been killed might be Uving and not 
 dead." In the last case, no body was found, there was a sud- 
 den, suspicious and unexplained absence of the person alleged 
 to have been killed; the court said that the death was not shown, 
 in fact no death was shown, nobody being found, there was a 
 suspicious disappearance from which a jury might infer that 
 there was a murder, but this did not come up to the require- 
 ment of the law. See also People v. Bennett, 49 N. Y. 137; 
 People V. Place, 157 N. Y. 584; People v. Benham, 160 N. Y. 425. 
 
 Q. A strikes B with his fist. B immediately draws a pistol 
 and shoots A dead. B is indicted, and on his trial, his counsel 
 
CRIMINAL LAW 183 
 
 moves for his discharge, on the ground that the killing was 
 donp in self-defense. Should the motion be granted? 
 
 A. No. "One who is without fault himself, when attacked 
 by another, may kill his assailant, if the circumstances be 
 such as to furnish reasonable ground for apprehending a design 
 to take away his life, or to do him some great bodily harm, and 
 the danger is imminent. But this principle will not justify 
 one in returning blows with a dangerous weapon when he is 
 struck with the naked hand, and there is no reason to appre- 
 hend a design to do him great bodily harm. Nor will it justify 
 homicide when combat can be avoided, or where after it has been 
 commenced, the party can withdraw from it in safety before 
 he kills his adversary." Shorter v. People, 2 N. Y. 193; People 
 V. Taylor, 177 N. Y. 237; People v. Govemale, 193 N. Y. 588. 
 
 Q. A is attacked by B in his (A's) own house. A resists the 
 attack, and in the course of the fight believing that his life was 
 in danger, does not retreat, but seizes a pistol from the table 
 and shoots B dead. At the trial of A for murder, the court 
 charges the jury that if A could have gotten out of the house, or 
 anywhere to a place of safety, he should have done so, and that 
 he had no right to use the weapon, unless all reasonable means 
 of retreat were cut off. A is convicted and appeals, his coimsel 
 having taken due exception to the charge. How should the 
 appellate court decide? 
 
 A. The judgment should be reversed, and a new trial ordered, 
 as the charge was erroneous. Where a man is assailed in his 
 own house, he need not flee as far as he can, as in other cases 
 of self-defense, and if the situation is such that he, as a reason- 
 able man, believes that he is about to be murderously attacked, 
 he has the right to stand his ground. " It is not now, and never 
 has been the law that a man assailed in his own dwelling, is 
 bound to retreat. If assailed there, he may stand his ground, 
 and resist the attack. He is under no duty to take to the fields 
 and the highways, a fugitive from his own home. Flight is 
 for sanctuary and shelter, and shelter, if not sanctuary is in 
 
184 CEIMINAL LAW 
 
 the home. That there is, in such a situation, no duty to retreat 
 is, we think, the settled law in the United States. ... It was 
 so held by the United States Supreme Court in Beard v. United 
 States, 158 U. S. 550. In that case there was a full review of 
 the authorities, and the rule was held to extend not merely to 
 one's house, but also to the surrounding grounds. We think 
 that if the situation justified the defendant as a reasonable 
 man in believing that he was about to be murderously attacked, 
 he had the right to stand his ground. General statements to 
 the effect that one who is attacked should withdraw, must be 
 read in the Ught of the facts that led up to them. We think 
 also that there is nothing in the statutes of this state that en- 
 larges in such conditions the duty to retreat. The present 
 statute (Penal Law, sec. 1055) is a re-enactment in substance 
 of the revised statutes." Cardozo, J., in People v. Tomlins, 
 213 N. Y. 240. 
 
 Q. A burglariously breaks into the house of B. B attempts 
 to capture him, and while so doing is shot dead by A. A is 
 arrested and indicted for murder in the first degree. At the 
 trial, his attorney asks for a dismissal of the indictment on 
 the ground that there was no prem.editation and deliberation. 
 What should be the ruling of the court? 
 
 A. The motion should be denied. The killing of any human 
 being, while engaged in the commission of a felony (as a bur- 
 glary) is mvu-der in the first degree, whether the felony was 
 committed upon or affects any person or concerns property 
 only. People v. Greenwall, 115 N. Y. 520; People v. Pekarz, 
 
 185 N. Y. 470. Section 1044 of the Penal Law defines murder 
 in the first degree as follows: "The killing of a human being, 
 unless it is excusable or justifiable, is murder in the first de- 
 gree, when conamitted: 1. From a deliberate and premeditated 
 design to effect the death of the person killed, or of another; 
 or 2. By an act imminently dangerous to others, and evincing 
 a depraved mind, regardless of human life, although without a 
 premeditated design to effect the death of any individual; or 
 without a design to effect death, by a person engaged in the 
 
CRIMINAL LAW 185 
 
 commission of, or in an attempt to commit a felony, either 
 upon or affecting the person killed or otherwise; or 3. When 
 perpetrated in conamitting the crime of arson in the first de- 
 gree. 4. A person who willfully, by loosening, removing or 
 displacing a rail, or by any other interference, wrecks, destroys 
 or so injures any car, tender, locomotive or railway train, or 
 part thereof, while moving upon any railway in this state, 
 whether operated by steam, electricity or other motive power, 
 as to thereby cause the death of a human being, is guilty of 
 murder in the first degree, and punishable accordingly." 
 
 Q. A and B are engaged in a quarrel, and come to blows. 
 B strikes A with his fist causing A to fall down and fatally 
 injure himself. B is indicted and tried for murder. Can he 
 be convicted? 
 
 A. He can only be convicted of manslaughter in the second 
 degree. Section 1052 of the Penal Law, defining manslaughter 
 in the second degree, is, in part, as follows: "Such homicide is 
 manslaughter in the second degree when committed without a 
 design to effect death: 1. By a person committing or attempt- 
 ing to commit a trespass, or other invasion of a private right, 
 either of the person killed, or of another, not amoimting to a 
 crime; or, 2. In the heat of passion, but not by a dangerous 
 weapon or by the use of means either cruel or imusual; or, 
 3. By any act, procurement or culpable negligence of any 
 person, which according to the provisions of this article, does 
 not constitute the crime of murder in the first or second de- 
 gree, nor manslaughter in the first degree." A homicide can 
 only be classed as manslaughter when there is no design to 
 kill; when that purpose is present, the crime is murder in one 
 of its degrees. Deliberation is there, when there is sufficient 
 opportunity for reflection, that reflection was had, and choice 
 was made with full opportunity to choose otherwise. People v. 
 Beckwith, 103 N. Y. 360. 
 
 Q. Define justifiable and excusable homicide, and are the 
 
 terms synonymous? 
 
186 CRIMINAL LAW 
 
 A. The terms are not synonymous. Excusable homicide 
 is defined in sec. 1054 of the Penal Law as follows: "Homicide 
 is excusable when committed by accident and misfortune, in 
 lawfully correcting a child or servant, or in doing any other 
 lawful act, by lawful means, with ordinary caution, and without 
 any unlawful intent." Section 1055 defines justifiable homi- 
 cide, and is as follows: "Homicide is justifiable when committed 
 by a pubhc officer, or a person acting by his command and in 
 his aid and assistance. 1. In obedience to the judgment of a 
 competent court; or, 2. Necessarily, in overcoming actual 
 resistance to the execution of the legal process, mandate or 
 order of a court or officer, or in the discharge of a legal duty; 
 or 3. Necessarily, in retaking a prisoner who has committed, 
 or has been arrested for, or convicted of a felony, and who 
 has escaped or has been rescued, or in arresting a person who 
 has committed a felony and is fleeing from justice; or in at- 
 tempting by lawful ways and means to apprehend a person 
 for a felony actually committed, or in lawfully suppressing a 
 riot, or in lawfully preserving the peace. Homicide is also 
 justifiable when committed: 1. In the lawful defense of the 
 slayer, or of his or her husband, wife, parent, child, brother, 
 sister, master or servant, or of any other person in his presence 
 or company, when there is reasonable ground to apprehend a 
 design on the part of the person slain to commit a felony, or 
 to do some great personal injury to the slayer, or to any such 
 person, and there is imminent danger of such design being 
 accomplished; or 2. In the actual resistance of an attempt to 
 commit a felony upon the slayer, in his presence, or upon or 
 in a dwelling or other place of abode in which he is." 
 
 Q. A and B were jointly indicted for robbery. Against the 
 objection of B, they were jointly tried and convicted. Will 
 the conviction stand on appeal? 
 
 A. No. Robbery being a felony, they were entitled to sepa- 
 rate trials according to sec. 391 of the Code of Crim. Pro., 
 which is as follows: "When two or more defendants are jointly 
 indicted for a felony, any defendant requiring it, must be 
 
CRIMINAL LAW 187 
 
 tried separately. In other cases, defendants jointly indicted, 
 may be tried separately or jointly, in the discretion of the 
 court." See People v. Cotto, 131 N. Y. 577. 
 
 Q. A is standing on a street comer, and takes his wallet 
 from his pocket for the purpose of taking a coin therefrom 
 to purchase something. B comes along and snatches the wallet 
 from A's hand. Is B guilty of robbery? 
 
 A. No, This is merely larceny and not robbery. Violence 
 as used in the Penal Law implies overcoming, or attempting 
 to overcome an actual resistance, or preventing such resistance 
 through fear. "The mere snatching of anything from the 
 hand of a person without any struggle or resistance by the 
 owner, or any force or violence on the part of the thief, will 
 not constitute robbery." McCloskey v. People, 5 Park. Cr. 
 Rep. 299; People v. Hall, 6 Park. Cr. Rep. 642. Section 2120 
 of the Penal Law, defines robbery as follows: "Robbery is the 
 imlawful taking of personal property, from the person or in 
 the presence of another, against his will, by means of force, 
 or violence, or fear of injury, immediate or future, to his person 
 or property, or the person or property of a relative or member 
 of his family, or of anyone in his company at the time of the 
 robbery." 
 
 Q. A picks B's pocket and runs off. B pursues him, and 
 upon coming up to him attempts to seize him. A, for the pur- 
 pose of effecting his escape draws a pistol, whereupon B desists. 
 Several days later A is arrested, and subsequently indicted and 
 tried for robbery. Can he be convicted of that crime? 
 
 A. No, for this is not robbery, according to sec. 2121 of the 
 Penal Law, which is as follows: "To constitute robbery, the 
 force or fear must be employed either to obtain or retain pos- 
 session of the property or to prevent or overcome resistance 
 to the taking? If employed merely as a means of escape it 
 does not constitute robbery." Here the property was ob- 
 tained without force or fear; the force or fear by the drawing 
 of the pistol was used for the purpose of escape, therefore A 
 
188 CRIMINAL LAW 
 
 cannot be convicted of robbery. He was guilty of larceny. 
 People V. McGinty, 24 Hun, 62; Hope v. People, 83 N. Y. 418. 
 
 Q. A takes B's watch and chain from his (B's) pocket. B, 
 upon discovering this, grapples with him and attempts to re- 
 take his property, whereupon A strikes him a heavy blow 
 causing B to release his hold upon the watch and chain. A 
 then makes good his escape with the property. Of what crime 
 is A guilty? 
 
 A. A is guilty of robbery. The force was here employed 
 for the purpose of retaining possession of the property, and 
 constitutes robbery within the provisions of sees. 2120 and 
 2121 of the Penal Law, supra. "Although the thief may have 
 secured possession of the property of another without force or 
 violence, the removal of the property from the presence of 
 that other with force or violence constitutes robbery." People 
 V. Glynn, 54 Hun, 332, aff'd 123 N. Y. 631. 
 
 Q. A, on boarding a street car, is seized by B around the 
 arms and his wallet extracted from his pocket. B runs off, and 
 is subsequently arrested. Of what crime is he guilty? 
 
 A. B is guilty of robbery, as it matters not what degree of 
 
 ; force is used. Mahoney v. People, 3 Him, 202, aff'd 59 N. Y. 
 
 /' 659. Section 2122 of the Penal Law provides that: "When 
 
 force is employed in either of the ways specified in the last 
 
 section, the degree of force employed is immaterial." 
 
 (Note.) Section 2123 provides that: "The taking of property from the 
 person of another is robbery, when it appears that although the taking was 
 fully completed without his knowledge, such knowledge was prevented by 
 the use of force and fear." 
 
 Q. A and B are husband and wife. A, the husband, leaves 
 the country, and is not heard of for more than five years. B, 
 the wife, believing him to be dead, marries C. Of what crime, 
 if any, is B guilty? 
 
 A. B is not guilty of any crime, within the meaning of sees. 
 340 and 341 of the Penal Law, which are as follows: "A person 
 
CRIMINAL LAW 189 
 
 who, having a husband or wife living, marries another person, 
 is guilty of bigamy and is punishable by imprisonment in a 
 penitentiary or state prison for not more than five years." 
 Section 341 says: "The last section does not extend, 1. To a 
 person whose former husband or wife, has been absent for five 
 years successively then last past, without being known to him or 
 her within that time to be living, and beheved by him or her 
 to be dead; or 2. To a person whose former marriage has been 
 pronounced void, or annulled, or dissolved, by the judgment 
 of a court of competent jurisdiction for a cause other than his 
 or her adultery; or 3. To a person who, being divorced for 
 his or her adultery, may be permitted to marry again under 
 the provisions of section eight of the domestic relations law; 
 or 4. To a person whose former husband or wife has been 
 sentenced to imprisonment for life." 
 
 Q. A, the wife of B, learns that B is living in another state 
 with another woman. A consults a lawyer, and asks him if 
 she may lawfully marry again. The lawyer informs her that 
 she could. A acts in good faith, and states all the facts to the 
 lawyer. She marries again after five years. What crime, if 
 any, is she guilty of? 
 
 A. A is guilty of bigamy, for according to sec. 341, supra, 
 the husband or wife, in order to have the right to marry again, 
 after an absence of five years, must beUeve the other to be 
 dead, and the advice of counsel does not alter the matter. The 
 case of People v. Meyer, 8 State Rep. 256, is in point. "The 
 defendant was asked whether he had stated to a lawyer that 
 his wife was absent over five years, that he had made diligent 
 search to ascertain her whereabouts, and was unable to do so; 
 also whether the lawyer did not inform him that he had a right 
 to marry. Held, that the questions had no material bearing 
 on the question of his belief in the death of his wife, and were 
 incompetent." 
 
 Q. A, an unmarried man, marries B knowing her to be the 
 wife of C, and also knowing that C is living in Canada. Of 
 what crime, if any, is A guilty? 
 
190 CRIMINAL LAW 
 
 A. A is guilty of bigamy, according to sec. 343 of the Penal 
 Law, which is as follows: "A person who knowingly enters into 
 a marriage with another, which is prohibited to the latter by 
 the provisions of this article is punishable by imprisonment 
 in a penitentiary or state prison, for not more than five years, 
 or by a fine of not more than one thousand dollars or both." 
 
 Q. A and B were legally married. One year later he marries 
 C, B still being alive., A and B were never divorced, nor was 
 their marriage aimuUed. Very shortly after this second mar- 
 riage B dies. A then deserts C and marries D. C has him 
 arrested, and indicted for bigamy. Can he be convicted? • 
 
 A. No. The second marriage to C during B's lifetime, was 
 of course bigamous and therefore void. After B's death,. A 
 had no lawful wife living, therefore his marriage to D was per- 
 fectly legal, and hence he could not be convicted of bigamy. 
 Section 340, supra. Fenton v. Reed, 4 Johns. 52; Price v. 
 Price, 124 N. Y. 589. 
 
 Q. A's coachman is sleeping in a room which is fitted up for 
 him in A's barn. B, thinking that the coachman has gone 
 away for the night, sets fire to the barn, but the fire is extin- 
 guished before any material harm is done. B is indicted, tried 
 and convicted of arson in the first degree. On appeal, B's 
 counsel asks that the judgment be reversed on the following 
 grounds: (a) That the indictment did not allege or the proof 
 show any intention to burn the building. (6) That B did not 
 know that there was a man in the building, (c) That the 
 barn was not a dwelling house, (d) That nobody was injured. 
 Should the judgment be reversed? State your opinion on each 
 one of these subdivisions. 
 
 A. (o) This contention is not valid. It is not necessary to 
 charge in an indictment, for arson in the first degree, or to 
 prove upon the trial that the defendant set the fire with the 
 intent to destroy the building. People v. Fanshawe, 137 N. 
 Y. 68. (6) It is not necessary that the defendant should know 
 that a human being is present in the building, if it is a dwelling 
 
CKIMINAL LAW 191 
 
 house, according to sec. 221 of the Penal Law, which is as fol- 
 lows: "A person who willfully burns, or sets on fire, in the 
 nighttime: 1. A dwelling house in which there is, at the time, 
 a human being; or 2. A car, vessel, or other vehicle, or a struc- 
 ture or building other than a dwelling house, wherein, to the 
 knowledge of the offender, there is, at the time, a human being, 
 is guilty of arson in the first degree." (c) The barn was a 
 dwelling house. "Any building is a dwelling house, within 
 the act defining arson in the first degree, which is in whole or 
 in part usually occupied by persons lodging therein at night, 
 although other parts, or the greater part may be occupied 
 for an entirely different purpose." People v. Orcutt, 1 Park, 
 Cr. Rep. 252. Section 220 of the Penal Law re-enacts the 
 rule laid down in this case, (d) It is not necessary that any- 
 body should be injured in order to constitute arson. For these 
 reasons, the judgment should be affirmed. 
 
 (Note.) Though there must be an actual burning to constitute the offense, 
 it is not necessary that the building should be consumed or materially in- 
 jured. If any part, however small, is consumed, it is suflScient. A flame is 
 not necessary. Charring constitutes a burning. Mere scorching or dis- 
 coloration is not enough. See People v. Butler, 16 Johns. 203. 
 
 Q. Is it a crime for a man to burn his own property, and if 
 so, what? 
 
 A. Yes, It is arson. Shepard v. People, 19 N. Y. 537, 
 Section 227 of the Penal Law provides as follows: "To con- 
 stitute arson, it is not necessary that another person than the 
 defendant should have had ownership in the building set on 
 fire," 
 
 Q, A feloniously in the nighttime set fire to the house of B, 
 which directly adjoined A's house. By reason of a heavy 
 wind the sparks are communicated to the house of C, resulting 
 in its destruction. Thereafter A is charged with arson, and 
 indicted for having burnt C's house. Can he be convicted? 
 
 A. Yes, Section 226 of the Penal Law is as follows: "Where 
 an appurtenance to a building is so situated with reference 
 
192 
 
 CRIMINAL LAW 
 
 to such building, or where any building is so situated with 
 reference to another building, that the burning of the one is 
 deemed a burning of the other, within the foregoing provisions, 
 against any person actually participating in the original setting 
 on fire, as of the moment when the fire from the one communi- 
 cates to and sets on fire the other." Hennessy v. People, 22 
 N. Y. 178; Arkell v. Ins. Co., 69 N. Y. 193; People v. Nolan, 
 115 N. Y. 660. 
 
 Q. A intended feloniously to set fire to the house of B, but 
 through a mistake went to the house of C, to which he set fire 
 on the outfeide, and just as the fire began to catch, a violent 
 rain storm came up and extinguished the fire. The damage 
 done to C's house was very slight and inconsequential. Can 
 A be convicted of arson imder the circumstances or not? If so, 
 why so? If not, why not? 
 
 A. Yes. An indictment for burning one house is sustained 
 by proof of the burning of another, with the criminal intent of 
 burning the house specified. Woodford v. People, 62 N. Y. 117. 
 
 Q. A asked B to set fire to C's bam, and gave him material 
 for the purpose. A did not mean to be present at the commis- 
 sion of the offense, and B never intended to commit it, and in 
 fact never set the bam on fire. Of what crime, if any, is A 
 guilty of? 
 
 A. A is guilty of an attempt to commit arson. The fact 
 that A prepared the combustibles, and solicited another to 
 use them in burning the barn, is sufficient to constitute an 
 attempt. "We have then the fixed design of the defendant 
 to burn this barn, and overt acts towards the commission 
 of the offense, and a failure in , the perpetration of it. The 
 offense, then, is fully made out, for the intent to do the wrong- 
 ful act, coupled with the overt acts towards its conmiission, 
 constitutes the attempt spoken of by the statute." McDer- 
 mott V. People, 5 Park. Cr. Rep. 36; People v. Bush, 4 Hill, 133. 
 
 Q. A sets fire to his trunk containing all his clothing for the 
 purpose of defrauding the insurance company. The clothing 
 
CRIMINAL LAW 193 
 
 is consumed, but no part of the building is burned. He is 
 indicted and tried for arson. Can he be convicted? 
 
 A. No. Setting fire to personal property in a building will 
 not constitute the crime of arson, if no part of the house itself 
 is burned. Dedieu v. People, 22 N. Y. 178. It may, however, 
 be held to be malicious mischief accordiag to sec. 1421 of the 
 Penal Law. 
 
 Q. A was detected in burglarizing the storehouse of B, and 
 when pursued accidentally kicked a lighted lamp to the floor 
 which set fire and consumed the entire building. Can A be 
 convicted of arson? 
 
 A. No. "The burning of a building under circumstances 
 which show beyond a reasonable doubt that there was no 
 intent to destroy it, is not arson." Section 225 of the Penal Law. 
 Providing as in this case that the building is one of the kind 
 mentioned in sec. 223 of the Penal Law, the burning of which 
 amounts to arson in the third degree. People v. Fanshawe, 
 137 N. Y. 74. Section 223 provides as follows: "A person 
 who willfully burns, or sets on fire a vessel, car or other vehicle, 
 or a buUding, structvire, or other erection, under circimastances 
 not amounting to arson in the first or second degree, is guilty of 
 arson in the third degree." 
 
 Q. A agrees with B, a servant of C's, that at an appointed 
 time, B shall unlock the door of C's house, so that A might 
 come in C's house and commit burglary. The door is unlocked 
 by B and A enters, but before he takes away anything he is 
 frightened away, and is afterwards arrested. Upon the trial 
 for burglary, the defendant's attorney asks the court to charge 
 the jury to acquit the defendant on the ground that burglary 
 was not committed. What should have been the ruling of 
 the court? State your reasons. 
 
 A. The motion should be denied, for A has committed 
 burglajy. There was a break within the meaning of that 
 term as defined in sec. 400 of the Penal Law, which in part 
 13 
 
194 CRIMINAL LAW 
 
 is as follows: "The word 'break' as used in this article, means 
 and includes: 1. Breaking or violently detaching any part, 
 internal or external, of a building; or 2. Opening, for the pur- 
 pose of entering therein, by any means whatever, any outer 
 door of a building, or of any apartment or set of apartments 
 therein separately used or occupied, or any window, shutter, 
 scuttle, or other thing, used for covering or closing an opening 
 thereto or therein, or which gives passage from one part thereof 
 to another; or 3. Obtaining an entrance into such a building or 
 apartment, by any threat or artifice used for that purpose, or 
 by collusion with any person therein; or 4. Entering such a 
 building or apartment by or through any pipe, chimney or 
 other opening, or by excavating, digging, or breaking through 
 or under the building, or the walls or foundation thereof." 
 
 (Note.) To constitute the crime of burglary, there must be both a break 
 and an entry. Burglary in the first degree is defined in sec. 402 of the Penal 
 Law as follows: "A person, who with intent to commit some crime therein, 
 breaks and enters, in the nighttime, the dwelling house of another, in which 
 there is at the time a human being (1) Being armed with a dangerous weapon; 
 or (2) Arming himself therein with such a weapon; or (3) Being assisted by a 
 confederate, actually present; or (4) Who, while engaged in the nighttime 
 in effecting such entrance, or in committing any crime in such a building, 
 or in escaping therefrom, assaults any person, is guilty of burglary in the 
 first degree.'' 
 
 Q. A climbs upon the roof of a dwelling house, and by means 
 of a rope ladder climbs down the chimney and into the house 
 without disturbing any article of furniture, takes a gold watch, 
 and retires as he came. Of what crime or crimes is he guilty? 
 
 A. He is guilty of burglary, for there is a break within the 
 meaning of sec. 400 of the Penal Law, supra. 
 
 Q. A, a tramp, passes a farmhouse, and seeing a window 
 open, enters the house through it and sleeps there for the night. 
 Upon awakening in the morning he takes some silverware, 
 and is about to depart when he is discovered and arrested. 
 He is indicted and tried for burglary. Can he be convicted 
 of that crime? 
 
CRIMINAL LAW 195 
 
 A. No. This is not burglary for there was no break. One who 
 obtains entrance to a house through an open window is not 
 guilty of burglary. People v. Arnold, 6 Park. Cr. Rep. 638. 
 
 (Note.) Raising a window sash constitutes a breaking; so also the pushing 
 open of a closed but unfastened transom. People v. Edwards, 1 Wheeler Cr. 
 Rep. (N. Y.) 374. A removal of props from the door in order to open and 
 enter is a breaking, but if a door or window is a little way open, it is not a 
 breaking to push it further open. 5 Am. & Eng. Ency. of Law, 45; People v. 
 Bush, 3 Park. Cr. Rep. 652. 
 
 Q. A goes to B's house with the intention of robbing the 
 same. The door is closed but not locked. A opens the door 
 and enters the house, but is discovered and arrested before 
 he commences to act. Of what crime, if any, is A guilty? 
 
 A. A is guilty of burglary. "Where the door of a house is 
 tightly closed without being either bolted, locked or fastened, 
 it is burglary to open it and enter the house with the purpose 
 of stealing." Tickner v. People, 6 Hun, 657. 
 
 Q. A stopped at the house of B and asked B's daughter for 
 a drink of cider, offering to pay for it. She refused to let him 
 have it, and he thereupon opened the door of the house al- 
 though forbidden to do so by her, went in and drank some 
 cider. He was arrested and indicted for burglary. Is he guilty 
 of that crime? 
 
 A. No. "Here the accused did not enter with the intent 
 to commit a crime. While he intended to obtain a drink of 
 cider and thus deprive B of his property, there was an absence 
 of the circumstances ordinarily attending the commission of a 
 larceny, and which distinguishes it from a trespass, and all 
 the circimistances were consistent with the view that the 
 transaction was a trespass merely. Every breaking does not 
 constitute burglary; there must be a felonious intent." Mc- 
 Court v. People, 64 N. Y. 583. 
 
 Q. A is suddenly awakened one night by a violent ringing 
 of his door bell. He opens the window and sees B, who says 
 
196 CRIMINAL LAW 
 
 he has a telegram for A. A goes downstairs and opens the 
 door. B immediately thrusts a pistol in A's face and demands 
 entrance. A grapples with B, who releases himself and runs 
 off. B had no telegram, and intended to rob A's house after 
 gaining entrance by this subterfuge. What crime, if any, has 
 B committed? 
 
 A. B has committed the crime of burglary in the first de- 
 gree within the meaning of sec. 402 of the Penal Law, supra. 
 He obtained entrance by an artifice, which constituted a break 
 under sec. 400 of the Penal Law, supra. There was an entry 
 within the meaning of sec. 400, as the pistol was thrust into 
 the building. Enter is defined in sec. 400 of the Penal Law as 
 follows: "The word 'enter' as used in this article, includes the 
 entrance of the offender into such building or apartment, or 
 the insertion therein of any part of his body or of any instru- 
 ment or weapon held in his hand, and used, or intended to be 
 used, to threaten or intimidate the inmates, or to detach or 
 remove property." 
 
 Q. A breaks a window in a jewelry store, and projects a 
 stick into the window for the purpose of removing some jewelry 
 and stealing the same. He is arrested. Of what crime, if any, 
 is he guilty? 
 
 A. A is guilty of burglary, for there was both a break and 
 an entry within the meaning of the statute. Section 400, supra. 
 
 Q. A, intending to rob the store of B, bored a hole through 
 the door with a centerbit; but before he could proceed any 
 further he was discovered and arrested. Part of the chips 
 were found on the inside of the store, from which it was ap- 
 parent that the end of the centerbit had penetrated into the 
 house. A is indicted and tried for burglary. Can he be con- 
 victed of that crime? 
 
 A. No. The instrument was not introduced into the build- 
 ing for the purpose of taking property. While there was a 
 
CRIMINAL LAW 197 
 
 sufficient breaking, there was not a sufficient entry to con- 
 stitute a burglary. If the instrument is used solely for the 
 purpose of effecting an entry, and not for the purpose of com- 
 mitting the contemplated felony, it will not amount to a burg- 
 larious entry. Section 400, supra. Of course A is guilty of 
 attempting to conmiit burglary. 
 
 Q. A servant of B, pretending to be acting in accord with C, 
 who mtended to burglarize B's house, agreed with C that on a 
 signal to be given him, she would open the door and let him in. 
 The servant, having informed B of the affair and her arrange- 
 ment, was instructed by him to carry out her arrangement 
 which she did, and on C's entering the house, he was at once 
 arrested by an officer concealed therein, indicted, tried and 
 convicted of burglary. Would the conviction stand on appeal? 
 If not, what is the trouble? State your reasons. 
 
 A. The judgment of conviction should be reversed. A per- 
 son cannot be guilty of burglary who enters the house by 
 permission of the servant of the owner, the latter knowing 
 at the time that the person wishes to enter to steal. It is in 
 effect a consent to the entry by such person, and is not even a 
 trespass. Here the servant was the agent of the owner of the 
 house in the transaction, and whatever the agent did in con- 
 formity to his instructions, must be treated as done by the 
 principal. It seems that there are no New York decisions on 
 this point, but the case of Allen v. State, 40 Ala. 334 (91 Amer. 
 Dec. 477) is exactly in point, and it was there so held. 
 
 Q. A has a fruit stand erected on a street against a building. 
 This stand has both a window and a door. B, in the nighttime, 
 while A was sleeping therein, breaks and enters into it, and 
 takes therefrom $10. He is subsequently arrested and in- 
 dicted for burglary. Upon the trial, B's counsel moves for a 
 dismissal of the indictment, on the ground that the stand was 
 not a building within the meaning of the Penal Law, and there- 
 fore could not be the subject of burglary. What should be the 
 ruling of the court? State your reasons. 
 
198 CRlMtNAL LAW 
 
 A. The motion should be denied. The stand was a booth 
 under sec. 400 of the Penal Law, which provides: "The term 
 'building' as used in this article, includes a railway car, vessel, 
 booth, tent, shop, inclosed ginseng garden, or other erection 
 or inclosure." It was so held in the case of People v. Hagan, 
 37 State Rep. 660. 
 
 (Note.) A vault in a cemetery is not included within the terms "building, 
 erection or inclosure" as used in the Penal Law defining burglary. People v. 
 Richards, 108 N. Y. 137. The chamber of a guest at a hotel is not his dwelling 
 house, but that of the landlord; therefore an indictment charging one to have 
 attempted to enter the dwelling house of A, and it appearing that an attempt 
 was made to enter a room in a hotel assigned to A, was held fatally defective. 
 Rodgers v. People, 86 N. Y. 360. A store was under the same roof of a 
 dwelling house; there was no internal communication between the store and 
 upper rooms. Held, that an entry into the store was an entry into a dwelling 
 house. Quinnv. People, 71 N.Y. 561. See also People v. Gartland, 30 App. 
 Div. 534. 
 
 Q. A upon entering his home carelessly leaves the outer 
 door ajar, and B slips in unnoticed by A and hides in a closet. 
 Thereafter when A and his family are about to retire for the 
 night, A locks the outer door. When all is quiet B comes forth 
 from his hiding place, takes some valuable jewelry from a 
 dressing table in one of the rooms, makes his way to the outer 
 door, and finding it locked forces it open and makes good his 
 escape. He is later arrested. Of what crime if any, can he be 
 convicted? 
 
 A. Burglary in the third degree, as he broke out of the house. 
 Section 404 of the Penal Law provides that: "A person who, 
 L With intent to commit a crime therein, breaks and enters a 
 building, or a room, or any part of a building; or 2. Being in 
 any building, commits a crime therein and breaks out of the 
 same, is guilty of burglary in the third degree." 
 
 (Note.) Section 405 of the Penal Law provides as follows: "A person who, 
 under circumstances or in a manner not amounting to a burglary, enters a 
 building, or any part thereof, with intent to commit a felony or a larceny, 
 or any malicious mischief, is guilty of a misdemeanor.'' Under this section 
 it is not necessary to have a break, or forcible entry in order to constitute 
 
CEIMINAL LAW 199 
 
 the crime. People v. Corcoraa, 34 Misc. 332; People v. Meegan, 104 N. Y. 
 531. 
 
 Q. A while traveling on a street car with B, puts his hand 
 into B's coat pocket, and lifts the pocketbook of the latter 
 containing $100 about halfway out of the pocket. He is dis- 
 covered by a detective who happens to be in the car, and is 
 arrested. He is subsequently indicted for larceny. On his 
 trial, his attorney asks that the indictment be dismissed on 
 the ground that there was not a sufficient carrying away to 
 constitute larceny. What should be the ruling of the court? 
 
 A. The motion should be denied. To constitute the offense 
 of larceny, there must be a taking of the goods from the power 
 or control of the owner. A temporary possession, however, 
 by the thief, though but for a moment, is sufficient. Hence 
 this was larceny and it was so held in Harrison v. People, 
 50 N. Y. 518. 
 
 Q. A goes to the house of B in B's absence, and represents 
 to B's wife, C, that B has been arrested, and has sent A to 
 get the watch, which he wishes to pawn and secure bail, all of 
 which is false. C gives the watch to B. Is B guilty of any 
 crime, or simply conversion? 
 
 A. B is guilty of larceny. If by trick or artifice, the owner 
 of property is induced to part with the custody or naked pos- 
 session for a special purpose to one, who received the property 
 with a felonious intent, the owner still meaning to retain the 
 right of property, the taking is larceny. Smith v. People, 53 
 N. Y. Ill; People v. Lawrence, 137 N. Y. 517. 
 
 (Note.) The conunon-law distinction between larceny, embezzlement, 
 and obtaining goods under false pretenses is abrogated, and is now included 
 in sec. 1290 of the Penal Law, which is as follows: "A person who, with the 
 intent to deprive or defraud the true owner of his property, or of the use 
 and benefit thereof, or to appropriate the same to the use of the taker, or 
 of any other person: 1. Takes from the possession of the true owner, or any 
 other person; or obtains from such possession by color or aid of fraudulent 
 or false representation or pretense, or of any false token or writing; or se- 
 cretes, withholds, or appropriates to his own use, or that of any person other 
 
200 
 
 CKIMINAL LAW 
 
 than the true owner, any money, personal property, thing in action, evidence 
 of debt or contract, or article of value of any kind; or 2. Having in his pos- 
 session, custody, or control, as a bailee, servant, attorney, agent, clerk, trustee, 
 or officer of any person, association, or corporation, or as a public officer, 
 or as a person authorized by agreement, or by competent authority, to hold 
 or take such possession, custody, or control, any money, property, evidence 
 of debt or contract, article of value of any nature, or thing in action or pos- 
 session, appropriates the same to his own use, or that of any other person 
 other than the true owner or person entitled to the benefit thereof, steals 
 such property, and is guilty of larceny." 
 
 Q. A was indicted for obtaining goods under false pretenses 
 and representations. At the time of the purchase, he offered 
 his check dated the next day in payment for the goods, saying 
 that there would be plenty of money to meet the cheek when 
 due. The dealer, relying on his representations, took the check 
 and delivered the goods, and presented the check for payment 
 at the bank on which it was drawn the next day, when pay- 
 ment was refused. It turned out that A never had an account 
 in the bank, and at the time of the transaction did not intend 
 to pay the check. The facts being conceded, is A guilty or 
 not guilty and why? 
 
 A, A is guilty. The case of Lesser v. People, 73 N. Y. 78, 
 is exactly in point. It was there held that the circumstances 
 tended to show the transaction to be a device on the part of 
 the prisoner to defraud the complainant; that the fact that 
 the check was postdated, did not imder the circumstances 
 make the transaction simply an undertaking that the money 
 to meet it would be in the bank at its matm-ity; and that the 
 facts justified a conviction. Cases of this kind are governed 
 by sec. 1293 of the Penal Law, which is as follows: "A person 
 who willfully, with intent to defraud, by color or aid of a check 
 or draft, or order for the payment of money or the delivery of 
 property, when such person knows that the drawer or maker 
 thereof is not entitled to draw on the drawee for the sum speci- 
 fied therein, or to order the payment of the amount, or de- 
 livery of the property, although no express representation is 
 made in reference thereto, obtains from another any money or 
 
CRIMINAL LAW 201 
 
 property, is guilty of stealing the same and punishable ac- 
 cordingly." 
 
 Q. A finds a gold brooch on which B's name is engraved. 
 A is acquainted with B and knows where she can be found. 
 A, however, says nothing to B, but uses the property as his 
 own. What remedy or remedies, if any, has B? 
 
 A. B can sue A in conversion or replevin. A is also guilty 
 of larceny under sec. 1300 of the Penal Law, which is as fol- 
 lows: "A person, who finds lost property under circumstances 
 which give him knowledge or means of inquiry as to the true 
 owner, and who appropriates such property to his own use, 
 or to the use of another person who is not entitled thereto, 
 without having first made every reasonable effort to find 
 the owner and restore the property to him, is guilty of lar- 
 ceny." 
 
 Q. A steals some money and a watch in Albany County. 
 He takes it into Oneida County, and is there arrested, and 
 the money and watch are found on his person. He is tried in 
 Oneida County, and at the completion of the evidence, the 
 counsel for the prisoner asks the court- to direct the jury to 
 acquit the prisoner, on the ground that the crime was com- 
 mitted in Albany County. What should the court do? 
 
 A. The court should deny the motion. A prisoner may be 
 convicted of larceny in any county into which he carries the 
 goods stolen by means of the larceny. Haskins v. People, 
 16 N. Y. 344; Wills v. People, 3 Park. Cr. Rep. 473; People v. 
 Dowling, 84 N. Y. 478. 
 
 (Note.) Section 1301 of the Penal Law provides as follows: "A person, 
 who having, at any place without the state, stolen the property of another, 
 or receives such property, knowing it to have been stolen, brings the same 
 into this state, may be convicted and punished in the same manner as if 
 such larceny or receiving had been committed within the state. Complaint 
 may be made and the indictment found and tried, and the offense may be 
 charged to have been committed, in any county into or through which the 
 stolen property is brought." 
 
202 
 
 CRIMINAL LAW 
 
 Q. Upon the trial of A for robbery, the jury rendered a 
 verdict of guilty of larceny from the person. A's attorney 
 moves to set aside the verdict as not being in conformity with 
 the indictment. How should the court decide? 
 
 A. The motion should be denied and the verdict allowed 
 to stand. "The robbery charged embraced 'larceny from the 
 person' because, if there had been an actual felonious taking, 
 not accompanied with the force and violence, or the fear of 
 immediate injury to the person, necessary to constitute rob- 
 bery, the crime would drop in grade to the less heinous offense 
 of larceny." Murphy v. People, 3 Hun, 115. See also People v. 
 Stacy, 119 App. Div. 748. 
 
 (Note.) Section 610 of the Penal Law provides as follows: "Upon the 
 trial of an indictment, the prisoner may be convicted of the crime charged 
 therein, or of a lesser degree of the same crime, or of an attempt to commit 
 the crime so charged, or of an attempt to commit a lesser degree of the same 
 crime." 
 
 Q. A commits burglary in Westchester County. He is 
 arrested in Albany County on a warrant issued in Westchester 
 County. A claims to be entitled to be admitted to bail in 
 Albany County. A consults you. What advice would you 
 give? 
 
 A. A's contention is not valid. Where by a warrant, an 
 arrest be directed for a felony, the magistrate issuing it has 
 exclusive jurisdiction, except in case of his absence or inability 
 to act, to examine, commit to bail, or discharge a prisoner 
 arrested under such a warrant. People v. Navagh, 4 N. Y. 
 Cr. Rep. 289. The distinction must be drawn between arrests 
 for felonies and misdemeanors. Section 158 of the Code of 
 Crim. Pro. provides as follows: "If the crime charged in the 
 warrant be a felony, the officer making the arrest must take 
 the defendant before the magistrate who issued the warrant, 
 or some other magistrate in the same county, as provided for 
 in section one hundred and sixty-four." Section 159 of the 
 Code of Crim. Pro. says: "If the crime charged in the warrant 
 be a misdemeanor, and the defendant be arrested in another 
 
CRIMINAL LAW 203 
 
 county, the officer must, upon being required by the defendant, 
 take him before a magistrate in that county, who must admit 
 the defendant to bail, for his appearance before the magistrate 
 named in the warrant, and take bail from him accordingly." 
 People V. Clews, 77 N. Y. 39. 
 
 Q. In what cases may a private person arrest another? 
 
 A. Section 183 of the Code of Crim. Pro. provides: "A 
 private person may arrest another: 1. For a crime committed 
 or attempted in his presence; 2. When the person arrested 
 has committed a felony, although not in his presence." 
 
 (Note.) Section 177 enumerating the cases in which a police officer may 
 arrest without a warrant, in addition to the two cases given in sec. 183, supra, 
 adds a third which is as follows: "When a felony has in fact been committed, 
 and he has reasonable cause for believing the person to be arrested to have 
 committed it." 
 
 Q. Upon the trial of A for perjury it appeared that the 
 defendant did not know the materiality of the evidence he 
 swore to, and that it did not affect the proceedings for which 
 it was made. A's attorney moved for a dismissal of the indict- 
 ment. What did the court do? 
 
 A. The motion was denied, for sec. 1624 of the Penal Law 
 provides: "It is no defense for a prosecution for perjury that 
 the defendant did not know the materiality of the false state- 
 ment made by him; or that it did not in fact affect the pro- 
 ceedings in or for which it was made. It is sufficient that it 
 was material, and might have affected such proceeding." 
 People V. Teal, 196 N. Y. 372. 
 
 Q. A is being tried for robbing B of a diamond stud. The 
 indictment alleges that the robbery occurred on the 10th of 
 May, 1908, and that the property taken belongs to B. The 
 evidence shows that the robbery took place on the 18th day of 
 May, and that the stud was one loaned to B, and the property 
 of C. A's counsel asks the court to instruct the jury to acquit 
 the defendant on the ground that there is a variance between 
 
204 CEIMINAL LAW 
 
 the indictment and the proof. What should be the ruhng 
 of the court? 
 
 A. The motion should be denied. A variance Taetween the 
 averment in an indictment and the proof, as to the day on 
 which the crime was committed, may be disregarded and the 
 indictment amended. People v. Jackson, 111 N. Y. 362; 
 People V. Hyatt, 172 N. Y. 204. "In an indictment for larceny 
 it is regular and proper to allege the ownership of the stolen 
 property to be in the lawful custodian or bailee. Under sec. 
 293 of the Code of Crim. Pro., the court has power to allow 
 the indictment to be amended by changing the name of the 
 owner of the property from the name of the alleged owner." 
 People V. Herman, 6 N. Y. Crim. Rep. 194. Section 280 of 
 the Code of Crim. Pro. provides as follows: "The precise time 
 at which the crime was committed need not be stated in the 
 indictment; but it may be alleged to have been committed 
 at any time before the finding thereof, except where the time 
 is a material ingredient in the crime." Section 293 says: 
 "Upon the trial of an indictment, when a variance between 
 the allegations therein and the proof, in respect to time, or 
 in the name or description of any place, person or thing, shall 
 appear, the court may, in its judgment, if the defendant cannot 
 be thereby prejudiced in his defense on the merits, direct the 
 indictment to be amended, according to the proof, on such 
 terms ... as the court may deem reasonable." 
 
 Q. An indictment charges three counts: 1. Burglary, by 
 breaking and entering the dwelling house of B in the nighttime. 
 2. Grand larceny, by feloniously taking and carrying away 
 articles of property in the house. 3. For receiving the stolen 
 property mentioned in count two. Is the indictment good, 
 under that section of the Code of Crim. Pro. which prohibits 
 indictments for more than one crime? 
 
 A. The indictment is good. The rule stated in sec. 278 
 of the Code of Crim. Pro. that the indictment must charge but 
 one crime, is subject to but one exception stated in sec. 279, 
 
CRIMINAL LAW 205 
 
 which is as follows: "The crime may be charged in separate 
 counts to have been committed in a different manner or by 
 different means; and where the acts complained of may con- 
 stitute different crimes, such crimes may be charged in sep- 
 arate counts." See Hawker v. People, 75 N. Y. 487. "So 
 long as the counts relate to the same transaction there is no 
 objection to joining them in the same indictment, even though 
 constituting offenses of different grades and demanding dif- 
 ferent punishments." People v. Wilson, 109 N. Y. 351 ; People 
 V. Adler, 140 N. Y. 330. 
 
 Q. A meets B and agrees with him that at an appointed 
 hour the next night they would set fire to the house of C. For 
 some reason or other nothing was done or said about it, and 
 the matter was dropped. What crime, if any, were they guilty 
 of? 
 
 A. They were guilty of a misdemeanor, the crime of con- 
 spiring to commit arson. No overt act was necessary. This 
 is provided for in sec. 583 of the Penal Law as follows: "No 
 agreement except to commit a felony upon the person of 
 another, or to commit arson or burglary amounts to a con- 
 spiracy, unless some act beside such agreement be done to 
 effect the object thereof, by one or more of the parties to such 
 agreement." People v. Flack, 125 N. Y. 324; People v. Shel- 
 don, 139 N. Y. 251; People v. Marcus, 185 N. Y. 257. 
 
 Q. A having been arrested on a murder charge, demands 
 an examination when he is brought before the magistrate. 
 A appears at the examination with counsel, and B is called 
 as a witness by the prosecution, and his evidence taken down 
 in writing by the magistrate. A's counsel does not cross- 
 examine B although he had the opportunity to do so. B's 
 evidence was duly signed by him and certified by the magis- 
 trate. A was later indicted. At the trial, B having since died, 
 the prosecuting attorney offered B's deposition in evidence. 
 A's counsel objects, claiming a violation of the prisoner's con- 
 stitutional rights. What should be the ruling of the court? 
 
206 
 
 CRIMINAL LAW 
 
 A. The court should overrule the objection. A's constitu- 
 tional rights were not violated, as he was confronted with 
 the witness and had his opportunity for cross-examination, 
 even though he did not take advantage of it. Section 8 of 
 the Code of Crim. Pro. provides in part as follows: "In a crimi- 
 nal action the defendant is entitled: 1. To a speedy and public 
 trial; 2. To be allowed counsel as in civil actions, or he may 
 appear and defend in person and with counsel; and 3. To pro- 
 duce witnesses in his behalf, and to be confronted with the 
 witnesses against him in the presence of the court, except 
 that (A) where the charge has been preliminarily examined 
 before a magistrate, and the testimony reduced by him to 
 the form of a deposition in the presence of the defendant, 
 who has, either in person or by counsel, cross-examined, or 
 had an opportunity to cross-examine the witness; . . . People 
 V. Fish, 125 N. Y. 136; People v. Gilhooley, 108 App. Div. 234; 
 People V. Vitusky, 155 App. Div. 139; People v. Qualey, 210 
 N. Y. 202. 
 
 Q. A was tried for robbery and duly convicted. Three 
 days thereafter he appeared for sentence, and the judge, with- 
 out asking him if he had anything to say why the judgment 
 of the law should not be pronounced against him, sentenced 
 him to state prison. Upon appeal, what should the decision 
 be? 
 
 A. The judgment should be reversed as the sentence is 
 invalid. Section 480 of the Code of Crim, Pro. provides as 
 follows: "When the defendant appears for judgment, he must 
 be asked by the clerk whether he have any legal cause to show 
 why judgment should not be pronoiinced against him." Mess- 
 ner v. People, 45 N. Y. 1; People v. McClure, 148 N. Y. 95. 
 
 Q. A was being tried for burglary. At the end of the first 
 day of the trial, the court adjourned for the following day. 
 By reason of a train wreck, the judge and officers were unable 
 to reach the court, and on the third day the trial was resumed 
 without any objection from the defendant. He is duly con- 
 
CKIMINAL LAW 207 
 
 victed, and appeals on the ground that the court was not legally 
 in session. What should be the decision on appeal? 
 
 A. The appeal should be dismissed. Although the proceed- 
 ings were suspended by reason of the judge being unable to 
 reach the court, yet the court did not lose jurisdiction of the 
 case, and when the trial was resumed without objection from 
 the defendant, the judgment of conviction stands. People v. 
 Sullivan, 115N. Y..185. 
 
 « 
 
 Q. X was arrested and indicted for a misdemeanor. The 
 case being on the calender, X's attorney appeared and re- 
 quested an adjournment; the court refused his request and 
 insisted upon him going to trial at once. X was not present. 
 X's attorney objects to the trial proceeding in the absence 
 of the defendant. The court overrules his objection, to which 
 ruling he excepts. The case was tried and submitted to the 
 jury which rendered a verdict of guilty. Will this verdict 
 stand? 
 
 A. Yes. Section 356 of the Code of Crim. Pro. provides 
 that: "If the indictment be for a misdemeanor, the trial may 
 be had in the absence of the defendant, if he appear by counsel; 
 but if the indictment be for a felony, the defendant must be 
 personally present." See People v. Welsh, 88 App. Div. 
 65. 
 
 Q. A was indicted and tried for robbery. The case was 
 duly submitted to the jury, and they having agreed upon a 
 verdict, returned to the court room and rendered a verdict 
 of guilty. The verdict was received and recorded. A was not 
 present during all this time, but was in jail. He was then sent 
 for and having waived the appointment of a time for sentence, 
 was then and there sentenced to state's prison. Was the sen- 
 tence valid? 
 
 A. The sentence should be set aside as it is absolutely void. 
 In all felony cases, the defendant must, before the verdict 
 
208 
 
 CBIMINAL LAW 
 
 is received, appear in person. People v. Perkins, 1 Wend. 91. 
 Section 434 of the Code of Crim. Pro. provides as fol- 
 lows: "If the indictment be for a felony, the defendant 
 must, before the verdict is received, appear in person. If 
 it be for a misdemeanor, the verdict may be rendered in his 
 absence." 
 
 (Note.) In People v. Wilson, 109 N. Y. 345, a murder case, it was held: 
 "That in the absence of anything indicating that the defendant was prej- 
 udiced thereby, the reception of the verdict when defendant's counsel was 
 not present was not error requiring a reversal." 
 
 Q. A is on trial for mm-der. After all the evidence is in and 
 the judge has charged the jury, the case is duly submitted 
 to them. The jurors leave the court room and after having 
 deliberated for a considerable time, they return and ask the 
 court for further instructions as to the testimony. A is not 
 present at this time. A's counsel objects to the instructions 
 being given in A's absence, and insists that A be sent for at 
 once. How should the court rule? 
 
 A. The objection must be sustained. The prisoner must 
 be sent for and brought into court before the instructions can 
 be given. "If after the jury have left the court room to con- 
 sider the verdict, they return and ask certain questions as to 
 the testimony, the court has no right to answer them, while 
 the prisoner is absent; he is entitled to be personally present 
 when any instruction is given to the jury having a tendency 
 to influence the verdict." Maurer v. People, 43 N. Y. 1. Sec- 
 tion 427 of the Code of Crim. Pro. provides that: "After the 
 jury have retired for deliberation, if there be a disagreement 
 between them, as to any part of the testimony, or if they de- 
 sire to be informed of a point of law arising in the cause, they 
 must require the officer to conduct them into court. Upon 
 their being brought into court, the information required must 
 be given after notice to the district attorney and to the counsel 
 for the defendant, and in cases of felony, in the presence of 
 the defendant." 
 
CRIMINAL LAW 209 
 
 Q. Upon a trial for murder, in examining jurors, it develops 
 that A, one of the jurors, has already formed an opinion as to 
 the guilt of the prisoner. What must the prosecuting attorney 
 show in order to make the juror acceptable? 
 
 A. This case is governed by sec. 376 of the Code of Crim. 
 Pro., which in part is as follows: "But the previous expression 
 or formation of an opinion br impression in reference to the 
 guilt or innocence of the defendant, or a present opinion or 
 impression in reference thereto, is not a sufficient ground of 
 challenge for actual bias, to any person otherwise legally 
 qualified, if he declare on oath, that he believes that such 
 opinion or impression will not influence his verdict, and that 
 he can render an impartial verdict according to the evidence, 
 and the court is satisfied, that he does not entertain such a 
 present opinion or impression as would influence his verdict." 
 The case of People v. Flaherty, 162 N. Y. 532, shows how 
 strictly this section is construed. It was there held that: "A 
 juror's declaration on oath, that he could render a fair and 
 impartial verdict upon the evidence brought out on the trial, 
 does not remove a prima facie disqualification arising from 
 his testifying that he has an opinion as to the guilt or innocence 
 of the accused where he does not declare on oath, as required 
 by the statute, 'that he believes such opinion or impression 
 will not influence his verdict.'" See also People v. Miller, 
 81 App. Div. 255; People v. Wolter, 203 N. Y. 484. 
 
 Q. You are the attorney for a defendant on trial for murder. 
 One of your material witnesses refuses to attend. State what 
 proceedings you would take to compel his attendance. 
 
 A. He can be compelled to attend by attachment. He is 
 also guilty of a criminal contempt, or a misdemeanor. Sec- 
 tion 600 of the Penal Law, also Code of Crim. Pro., sees. 611 
 to 619a, inclusive. Section 619 of the Code of Crim. Pro. 
 provides that: "Disobedience to a subpoena, or a refusal to be 
 sworn or to testify, may be punished by the court or magis- 
 trate, as for a criminal contempt in the manner provided in 
 the judiciary law." 
 14 
 
210 
 
 CRIMINAL LAW 
 
 Q. A and B agree in New York City that they should go to 
 Jersey City, N. J., and there fight a duel. Thereafter they 
 fight a duel in Jersey City, and A is killed. What crime is B 
 guilty of? 
 
 A. B is guilty of murder in the second degree, according 
 to sec. 1047 of the Penal Law, which is as follows: "A person, 
 who, by previous appointment made within the state, fights 
 a duel without the state, and in so doing inflicts a woimd upon 
 his antagonist, whereof the person injured dies; or who engages 
 or participates in such a duel, as a second or assistant to either 
 party, is guilty of murder in the second degree, and may be 
 indicted, tried and convicted in any county of this state." 
 
 Q. A was the holder of a check for $500 which was raised 
 from $50, and A knew it. He negotiated the same in due 
 course of business. What crime, if any, is A guilty of? 
 
 A. A is guilty of forgery. This is provided for in sec. 881 
 of the Penal Law as follows: " A person who, knowing the same 
 to be forged or altered, and with intent to defraud, utters, 
 offers, disposes of or puts off as true, or has in his possession, 
 with intent to so utter, offer, dispose of, or put off : 1. A forged 
 seal or plate, or any impression of either; or 2. A forged coin; 
 or 3. A forged will, deed, certificate, indorsement, record, in- 
 strument or writing, or other thing, the false making, forging, 
 or altering of which is punishable as forgery, is guilty of forgery 
 in the same degree as if he had forged the same." People v. 
 Altman, 147 N. Y. 473. 
 
 Q. A intending to commit a fraud on B, in the pretended 
 sale and conveyance of a farm, induces C, his friend, who is a 
 notary public, to willfully certify falsely that the execution 
 of a deed of conveyance of the farm was acknowledged by D, 
 the grantor named therein, before him. Of what crime, if 
 any, can C be convicted? 
 
 A. C is guilty of forgery in the first degree, according to 
 eec. 885 of the Penal Law which is as follows: "An officer au- 
 
CRIMINAL LAW 211 
 
 thorized to take the proof or acknowledgment of an instrument 
 which by law may be recorded, who willfully certifies falsely 
 that the execution of such an instrument was acknowledged 
 by any party thereto, or that the execution of any such instru- 
 ment was proved, is guilty of forgery in the first degree." 
 See also Harden v. Dorthy, 160 N. Y. 55; People v. Marrm, 
 205 N. Y. 275. 
 
 Q. Can any crimes be compromised? 
 
 A. Certain crimes which are misdemeanors and for which 
 the party injured has a remedy by civil action may be com- 
 promised. Section 663 of the Code of Crim. Pro., provides 
 that: "When a defendant is brought before a magistrate, or is 
 held to answer on a charge of a misdemeanor, for which the 
 person injured by the act constituting the crime has a remedy 
 by civil action, the crime may be compromised, as provided 
 in the next section, except when it was conamitted: 1. By or 
 upon an officer of justice whUe in the execution of the duties 
 of his office; 2. Riotously; or 3. With an intent to commit a 
 felony. Section 664 provides that : " If the party injured appear 
 before the magistrate, or before the court to which the deposi- 
 tions and statements are required, by sec. 221, to be returned 
 at any time before trial or commitment by the magistrate, 
 or trial on indictment for the crime, and acknowledge in writing 
 that he has received satisfaction for the injury, the magistrate 
 or court may, in his or its discretion, on payment of the costs 
 and expenses incurred, if such magistrate or court shall see 
 fit so to direct, order the proceedings to be stayed upon the 
 prosecution and the defendant be discharged therefrom. But 
 in that case, the reason for the order must be set forth therein 
 and entered upon the minutes." Section 665 provides that: 
 "The order authorized by the last section is a bar to another 
 prosecution for the same offense." Section 666 provides 
 that: "No crime can be compromised, nor can any pro- 
 ceeding for the prosecution or punishment thereof upon a 
 compromise, be stayed, except as provided in sees. 663 and 
 664." 
 
CHAPTER IX 
 
 Domestic Relations 
 
 Q. A and B, husband and wife, who are living in a state of 
 separation, execute a written agreement by which they mutu- 
 ally agree to live separate and apart, and the husband agrees to 
 pay the wife $200 per month for her support. He does not pay 
 for three months, upon which B brings suit for $600. Can she 
 recover? Give reasons in full. 
 
 A. B can recover, such an agreement being valid, as sec. 61 
 of the Dom. Rel. Law (Consolidated Laws, chap. 14) gives the 
 husband and wife the right to contract with each other, includ- 
 ing the right to make a separation agreement, without the in- 
 tervention of a trustee. "Prior to the legislation which gave 
 married women general power to make contracts, it was the 
 law that if a husband and wife had actually separated, a valid 
 agreement might be made, through the medium of a trustee, 
 for an allowance from the husband to the wife for her support. 
 Under similar circumstances, agreements of that nature are 
 still valid, but the intervention of a trustee or a third person is 
 no longer necessary. In view of the legislation which permits 
 husbands and wives to contract directly with each other, any 
 contract for separation and support, which they formerly could 
 have made by means of a trustee, they can now make without 
 one." Winter v. Winter, 191 N. Y. 462; Effray v. Effray, 110 
 App. Div. 545; McCormack v. McCormack, 127 App. Div. 406. 
 
 (Note.) Where the husband and wife are Hving together, and they execute 
 an agreement by which thei^ agree to thereafter separate and live apart, 
 and the husband agrees to pay the wife a certain sum for her support, this 
 agreement is held to be void 6n the ground of pubUc policy. It was so held 
 in the case of Poillon v. Poillon, 49 App. Div. 341 (cited with approval in 
 Winter v. Winter, supra), where it was held: "A separation agreement exe- 
 cuted by husband and wife, without the intervention of a trustee, which 
 212 
 
DOMESTIC RELATIONS 213 
 
 provides that the parties have mutually consented and agreed and 'by these 
 presents do mutually consent and agree to hereafter live separate and apart 
 from each other,' is void as against public policy, the necessary inference 
 therefrom being, that the parties, neither of whom appeared to be entitled 
 to a separation, were living together when the paper was signed, and that 
 it was an essential part of the agreement that they should thereafter sep- 
 arate." Maney v. Maney, 119 App. Div. 765; Matter of Kopf, 73 Misc. 198. 
 
 Q. A husband agreed with his wife, they having separated, 
 that he should pay her $10 per week for her support. This was 
 done, but $10 was not enough and she went to a grocer who 
 knew of the contract and purchased groceries. The grocer 
 sues for the amount of the goods. What are his rights? Answer 
 in full. 
 
 A. The grocer can recover from the husband. The question 
 involved in this case has been the subject of much litigation. 
 In Hatch v. Leonard, 38 App. Div. 128, it was held, that where 
 a husband and wife are living separate and apart from each 
 other, the presumption that the wife is the agent of the husband, 
 authorized to charge him with purchases of necessaries made 
 by her, ceases. This decision was reversed by the court of 
 appeals (Hatch v. Leonard, 165 N. Y. 435), and it was there 
 held by the court, that the husband is bound to supply neces- 
 saries even after separation, and that the implied agency to 
 buy necessaries does not cease after separation. This same 
 case came up on another appeal (Hatch v. Leonard, 71 App. 
 Div. 32), where it was held, if the husband had supphed the 
 wife with a sufficient amount, he is discharged irrespective of 
 the tradesman's knowledge. Of course in the question put, the 
 husband not having supplied a sufficient sum, is hable. Hohhan 
 v. Holihan, 79 App. Div. 480. 
 
 Q. A, the wife of B, willfully deserted her husband and re- 
 fused to hve with him. The husband gave notice to C, a grocer, 
 that he should not sell to the wife on his account. The grocer 
 gave her all the goods necessary for her support, and upon the 
 failure of the husband to pay for the same brings suit. Judg- 
 ment for whom and why? 
 
214 DOMESTIC EELATIONS 
 
 A. Judgment for the husband. While a husband is bound 
 to supply his wife with necessaries, yet when she voluntarily 
 deserts him, he becomes relieved of this duty. As the grocer 
 knew that the wife had left the husband and gave her the goods, 
 he cannot hold the husband for their value. To entitle the 
 wife to contract for necessaries and charge the same to the 
 husband, she must not voluntarily leave him. "A husband, 
 whose wife abandons him without just cause and refuses his 
 offer to support her if she will return to him, is not liable for 
 necessaries furnished to the wife while thus living apart from 
 him. Semble, that a person who seeks to recover from a hus- 
 band the value of necessaries furnished to his wife, while she 
 was living apart from him, must show that the separation was 
 not due to the wife's fault." Constable v. Rosener, 82 App, 
 Div. 155, affirmed in 178 N. Y. 507. See also Ogle v. Der- 
 shem, 91 App. Div. 551; Robinson v. Litz, 123 N. Y. Suppl. 
 363. 
 
 Q. On March 1st, 1915, A and B desired to marry and be- 
 come man and wife without the ceremony of a clergyman or 
 of a duly authorized magistrate or public officer. Can this be 
 done? If so, how? If not, why not? 
 
 A. Yes, providing that they comply with sec. 11, subdiv. 4, 
 and sec. 25 of the Dom. Rel. Law, which are as follows: Sec. 11, 
 subdiv. 4, reads: "A written contract of marriage signed by both 
 parties and at least two witnesses who shall subscribe the same, 
 stating the place of residence of each of the parties and wit- 
 nesses and the date and place of marriage, and acknowledged by 
 the parties and witnesses in the manner required for the ac- 
 knowledgment of a conveyance of real estate to entitle the same 
 to be recorded, provided, however, that all such contracts of 
 marriage must in order to be valid be acknowledged before a 
 judge of a court of record. Such contract shall be recorded 
 within six months after its execution in the oflBce of the clerk of 
 the county in which the marriage was solemnized." Section 25 
 reads: "The provisions of this article pertaining to the granting 
 of the licenses before marriage can be lawfully celebrated apply 
 
DOMESTIC RELATIONS 215 
 
 to all persons who assume the marriage relation in accordance 
 with subd. 4 of sec. 11 of this chapter." 
 
 Q. A and B, husband and wife, enter into a partnership. C 
 loans money to the firm, and A being financially irresponsible, 
 sues B for the amount. She defends on the ground that a hus- 
 band and wife cannot enter into a partnership. Is the defense 
 good? State your reasons. 
 
 A. The defense is not good. This question was settled by the 
 case of Suau v. Gaffe, 122 N. Y. 308, where it was said by Follet, 
 Ch. J., in delivering the opinion of the court: "It being settled 
 that a husband and wife may be the agents of each other, and 
 that they may bind themselves by joint contracts entered into 
 with third persons, they are liable as partners to the same effect. 
 Where a husband and wife assume to carry on business as co- 
 partners, and contract debts in the course of it, the wife cannot 
 escape Uability on the ground of coverture." Section 51 of the 
 Dom. Rel. Law (Consolidated Laws, chap. 14) continues this rule 
 and gives a husband and wife very complete power to contract 
 with each other; this section is as follows: "A married woman 
 has all the rights in respect to property, real or personal, and 
 the acquisition, use, enjoyment and disposition thereof, and to 
 make contracts in respect thereto with any person, including 
 her husband, and to carry on any business, trade or occupa- 
 tion, and to exercise all powers and enjoy all rights in respect 
 thereto and in respect to her contracts, and be liable on such 
 contracts, as if she were unmarried; but a husband and wife 
 cannot contract to alter or dissolve the marriage or relieve the 
 husband from his liability to support his wife. All sums that 
 may be recovered in actions or special proceedings by a married 
 woman to recover damages to her person, estate or character 
 shall be the separate property of the wife. Judgment for or 
 against a married woman, may be rendered and enforced, in a 
 court of record, or not of record, as if she was single. A married 
 woman may confess a judgment specified in sec. one thousand 
 two hundred and seventy-three of the Code of CivU Proce- 
 dure." 
 
216 DOMESTIC RELATIONS 
 
 Q. A, the wife of B, does certain work for the X Company 
 which refuses to pay for the same. B, the husband, sues the 
 company which defends on the ground that he is not the proper 
 party to brmg the suit, but that the wife herself should sue. 
 Is the defense good? 
 
 A. The defense is good, the wife alone is the proper party to 
 bring suit, unless it was expressly agreed that the husband 
 should be entitled to the wife's earnmgs. This is provided for 
 by sec. 60 of the Dom. Rel. Law as follows: "A married woman 
 shall have a cause of action in her own sole and separate right 
 for all wages, salary, profits, compensation or other remunera- 
 tion for which she may render work, labor or services, or which 
 may be derived from any trade, business or occupation carried 
 on by her, and her husband shall have no right of action there- 
 for unless she or he with her knowledge and consent has other- 
 wise expressly agreed with the person obligated to pay such 
 wages, salary, profits, compensation or other remuneration. 
 In any action or proceeding in which a married woman or her 
 husband shall seek to recover wages, salary, profits, compensa- 
 tion or other remuneration for which such married woman has 
 rendered work, labor or services or which was derived from any 
 trade, business or occupation carried on by her or in which the 
 loss of such wages, salary, profits, compensation or other re- 
 muneration shall be an item of damage claimed by a married 
 woman or her husband, the presumption of law in all such cases 
 shall be that such married woman is alone entitled thereto, un- 
 less the contrary expressly appears." "The fact that a married 
 woman enters upon an independent employmentwithout protest 
 or interference from her husband, shows a sufficient election on 
 her part to labor on her own account, and thereby entitle her- 
 self to her earnings. The plaintiff was under no obligation, so 
 far as her husband was concerned, to enter into any contract, 
 express or implied, to serve a person outside of his house and 
 to whom he was under no obligation; she having done so, 
 the statute permits her to collect and retain her earnings in 
 such employment." Stevens v. Cunningham, 181 N. Y. 
 459. 
 
DOMESTIC RELATIONS 217 
 
 Q. A, an invalid, boarded with B who maintained and paid 
 all expenses of the house. The wife of B nursed and took care 
 of A while attending to her household duties, and while engaged 
 in no other occupation. The nursing was done with the knowl- 
 edge and consent of B, the husband. The services rendered 
 by the wife of B were reasonably worth $300. B brings suit 
 to recover $300, the wife making no claim therefor. Can the 
 action be maintained? If so, why so? If not, why not? An- 
 swer in full. 
 
 A. Yes, the husband can maintain the action. "The legisla- 
 tion in this state upon the subject of the rights of married 
 women has only resulted in abrogating their common-law 
 status to the extent set forth in the various statutes. They 
 have not by express provision, nor have they by implication, 
 deprived the husband of his common-law right to avail himself 
 of a profit or benefit from her services." Porter v. Dunn, 131 
 N. Y. 317. See also Holcomb v. Harris, 166 N. Y. 257. 
 
 Q. A, the wife of B, works for her husband in his place of 
 business for ten weeks at $10 per week. B refuses to pay her. 
 She sues for the amount due. B defends on the ground that 
 the contract is void, and even if it was valid her earnings be- 
 long to him. Is the defense good? Can she recover? 
 
 A. No. By virtue of the marital relation the husband was 
 absolutely entitled to the services of the wife without paying 
 for the same. "The provisions of the act in relation to married 
 women (Laws of 1860 and 1884) making the property a married 
 woman acquires, her separate property, does not apply to 
 labor performed by her for her husband, and she cannot make a 
 binding contract with him for her services, although the same 
 are to be rendered outside of her household duties. While he 
 cannot require her to perform services for him outside of the 
 household, such services as she does render, whether within 
 or without the strict line of her duty, belong to him, and a 
 promise to pay therefor is simply a promise to make her a gift, 
 and so is not enforceable." Blaechinska v. Howard Mission, 
 
218 DOMESTIC RELATIONS 
 
 130 N. Y. 497. "It is very obvious that these enactments do 
 not destroy the common-law unity of the marital relation. 
 The husband is still entitled to the services of his wife." Car- 
 ver V. Wagner, 51 App. Div. 50. 
 
 (Note.) The distinction must be drawn between the case where the wife 
 works for a third person and where she works for her husband. When she 
 works for the third person it is on her sole and separate account, providing 
 of course that the work is outside of the household duties, and is in an occu- 
 pation separate from that devolving upon her as wife, and the statute pro- 
 tects her contract. However, when she works for her husband it is on his 
 account and the statute does not apply. Stevens v. Cunningham, 181 N. 
 Y. 454. 
 
 Q. A committed an assault and battery upon B, his wife, 
 whereby she became injured for life. B, the wife, brings action 
 against A to recover damages for the injuries sustained. Can 
 the action be maintained? State your reasons. 
 
 A. No. "The action is brought by a wife against her hus- 
 band to recover damages for an assault and battery com- 
 mitted by the husband upon the wife. It is settled by authority 
 that the action cannot be maintained. Schultz v. Schultz, 
 89 N. Y. 644. There is nothing in the Domestic Relations 
 Act (Laws 1896) which works any change in the law in this 
 respect. The Domestic Relations Act simply gives her a 
 'right of action for an injury to her person.' The claim which 
 seeks to authorize the action based upon the language 'for 
 an injury arising out of the marital relation' must fail. In 
 no sense does an assault and battery arise out of the marital 
 relation." Abbe v. Abbe, 22 App. Div. 484. 
 
 Q. By antenuptial contract, a wife gives her husband 
 $10,000. At that time she has $25,000. After the marriage, 
 the creditors of the wife before the marriage sue the husband 
 for a claim of $15,000 which they had against the wife. Can 
 the creditors collect? If so, how much? 
 
 A. The creditors can collect $10,000, according to sec. 54 
 of the Dom. Rel. Law (Consolidated Laws, chap. 14), which 
 
DOMESTIC RELATIONS 219 
 
 is as follows: "A husband who acquires property of his wife 
 by antenuptial contract or otherwise, is liable for her debts, 
 contracted before marriage, but only to the extent of the prop- 
 erty so acquired." 
 
 Q. A and B are husband and wife and are living together. 
 The wife goes to a grocer and purchases groceries, agreeing to 
 be individually liable therefor. The wife refuses to pay. The 
 grocer sues the husband for the amount of the bill. Can he 
 recover? Answer m full. 
 
 A. No. The rule is well settled that where a tradesman 
 furnishes goods to the wife and gives her credit, upon her 
 promise to pay for the same, the husband is not Uable, even 
 where the goods were purchased for the benefit of the whole 
 family including the husband. Tiemeyer v. Turnguist, 85 
 N. Y. 516; Jones v. Fleming, 104 N. Y. 433. "When a married 
 woman makes express contracts in her name for her necessary 
 support, she will not be deemed to have acted as agent for 
 her husband in procuring such support, nor is there any implied 
 agreement on the part of her husband to pay for such neces- 
 saries. When a person makes an express contract with a 
 married woman for the joint support of herself and husband, 
 if the wife is the sole contracting party, and the credit is given 
 to her alone, and she is in all respects competent to make a 
 valid contract and bind herself, such person will not be per- 
 mitted to shift the liability upon the husband who is not a 
 party to the contract, upon the failure of the wife to pay the 
 amount due thereunder." Byrnes v. Rayner, 84 Hun, 199. 
 Section 55 of the Dom. Rel. Law (Consolidated Laws, chap. 14) 
 accords with this rule, and is as follows: "A contract made 
 by a married woman does not bind her husband or his prop- 
 erty." 
 
 (Note.) The general rule is that where a wife purchases necessaries for 
 the use of the family, the presumption is that she acts as the agent of the 
 husband and he is liable. Lindholm v. Kane, 92 Hun, 369. This presump- 
 tion may be overcome by the fact that credit was given to the wife per- 
 sonally. Ehrich v. Bucki, 7 Misc. 118; Edwards v. Woods, 131 N. Y. 350. 
 
220 DOMESTIC RELATIONS 
 
 Q. A, the wife of B, goes to a butcher and purchases some 
 meat for the use of the household. B also goes and makes 
 purchases of meat at various times. All the purchases are 
 charged to B. B fails to pay. The butcher sues the wife. 
 Can he recover? 
 
 A. No. "A wife living with her husband is not liable for 
 goods purchased in part by her and in part by him for use in 
 their family, where she does not agree to become personally 
 responsible for the indebtedness, and the goods are charged 
 to the husband at the time of the purchase." Bradt v. Schull, 
 46 App. Div. 347. 
 
 Q. A allowed his wife $15 per week for the use of the house- 
 hold. The wife saved from this allowance the sum of $200 
 which she used to purchase a piano. Upon an execution of a 
 judgment obtained against the wife, the sheriff levies upon the 
 piano and sells the same. The husband consults you. Advise 
 him. 
 
 A. The execution and sale of the paino was void, and the 
 husband has a right of action against the sheriff. The money 
 which the wife saved belonged to the husband, and likewise 
 the property which she purchased with that money belonged 
 to him. "In the management of the household the wife is 
 the agent of the husband, and any surplus arising out of the 
 economy of the wife, in her conduct and management of the 
 household, remains and is the property of the husband, unless 
 bestowed upon the wife as a gift." Aaronson v. McCauley, 
 46 State Rep. 664. 
 
 Q. A, the wife of B, in his presence grossly slanders C. C 
 sues B, the husband. Can he recover? State your reasons. 
 
 A. No. To entitle C to recover, he must show that the 
 slander was committed by the wife through the husband's 
 actual coercion or instigation. This is provided by sec. 57 
 of the Dom. Rel. Law as follows: "A married woman has a 
 right of action for an injury to her person, property or char- 
 
DOMESTIC RELATIONS 221 
 
 acter or for an injury arising out of the marital relation, as if 
 unmarried. She is liable for her wrongful or tortious acts; her 
 husband is not liable for such acts unless they were done by 
 his actual coercion ,or instigation; and such coercion or instiga- 
 tion shall not be presumed, but must be proved." 
 
 Q. A, the wife of B, sets a dog upon C in B's presence. The 
 dog belongs to B. C sues both the husband and wife. B de- 
 fends on the ground that he is not a necessary or proper party. 
 Judgment for whom and why? 
 
 A. Judgment for B. "Under the Dom. Rel. Law, a hus- 
 band is not liable for the wrongful acts of his wife, in setting 
 upon another a dog owned by the husband, in the absence of 
 proof that her conduct was the result of his actual coercion 
 or instigation." Strubing v. Mahar, 46 App. Div, 400 ; Quilty v. 
 Battle, 135 N. Y. 201. That the husband is not a necessary 
 or proper party, sec. 450 of the Code of Civ. Pro. provides as 
 follows: "In an action or special proceeding a married woman 
 appears, prosecutes or defends alone or joined with other par- 
 ties as if she was single. It is not necessary or proper to join 
 her husband with her as a party in any action or special pro- 
 ceeding to recover damages to the person, estate or character 
 of his wife. The husband is not a necessary or proper party 
 to an action or special proceeding to recover damages to the 
 person, estate or character of another on account of the wrong- 
 ful acts of his wife committed without his instigation." 
 
 Q. A is sentenced to imprisonment for life. He serves six 
 years and is then pardoned. He had previously been married 
 and had two children born to him. On regaining his liberty, 
 he seeks to secure the guardianship of his children and also 
 to resume the marital relation with his wife. He comes to 
 you for advice. What are his rights? 
 
 A. He cannot secure the guardianship of his children or 
 resume the marital relation, for sec. 58 of the Dom. Rel. Law 
 provides that: "A pardon granted to a person sentenced to 
 imprisonment for life within this state does not restore that 
 
222 DOMESTIC EELATIONS 
 
 person to the rights of a previous marriage, or to the guardian- 
 ship of a child, the issue of such a marriage." 
 
 Q. A and B, husband and wife, are living in a state of sep- 
 aration, but no decree of divorce has been made by a court 
 affecting their marriage. B has possession of the two children, 
 the issue of the marriage, both of whom are minors, and the 
 husband wishes to get control of them. He comes to you for 
 advice. What are his rights, and how would you proceed to 
 enforce them? 
 
 A. Apply to the supreme court for a writ of habeas corpus, 
 according to sec. 70 of the Dom. Rel. Law, which is as follows: 
 "A husband or wife, being an inhabitant of this state, living in 
 a state of separation, without being divorced, who has a minor 
 child, may apply to the supreme court, for a writ of habeas 
 corpus to have such minor child brought before such court; and 
 on the return thereof, the court, on due consideration, may 
 award the charge and custody of such child to either parent for 
 such time, under such regulations and restrictions, and with 
 such provisions and directions, as the case may require, and 
 may at any time thereafter vacate or modify such order." 
 
 Q. A question has arisen upon the return of a writ of habeas 
 corpus, as to the proper person to have the custody of a child 
 five years old. The father claims it as a matter of right, and 
 it is not contended that he is a person unfit to take charge 
 of it. Upon what consideration should the court decide the 
 question, and what circiunstances should control as to the dis- 
 position of the child? 
 
 A. The only consideration is, what is the best interest of 
 the child? As a general rule, the father is entitled to the cus- 
 tody of the infant, all other facts being equal. Mercein v. 
 People, 25 Wend. 64. "It is the well-settled law of this state, 
 that in determining the custody of infants, between father 
 and mother, their welfare, and not the supposed rights of the 
 parents is the controlling principle." Perry v. Perry, 17 Misc. 
 28; People ex rel. Pruyne v. Walts, 122 N. Y. 238. The law 
 
DOMESTIC RELATIONS 223 
 
 awards the custody of the child to the father unless the welfare 
 of the child is better served by awarding it to the mother. 
 People V. Sinclair, 91 App. Div. 322, 
 
 Q. A, the father of B, an infant, meets C in the street. A tells 
 C who had employed B without the consent of A, not to pay 
 wages to B, but to himself, A. At the end of a month, C pays 
 the wages to B. A sues C to recover the same amount again. 
 Judgment for whom and why? 
 
 A. Judgment for C. The notice in order to be binding on the 
 employer must be in writing, and served within thirty days 
 after the commencement of such service, according to sec. 72 
 of the Dom. Rel. law (ConsoUdated Laws, chap. 14), which is 
 as follows: "Where a minor is in the employment of a person 
 other than his parent or guardian, payment to such minor of 
 his wages is valid, unless such parent or guardian notify the 
 employer in writing, within thirty days after the commence- 
 ment of such service, that such wages are claimed by such parent 
 or guardian, but whenever such notice is given at any time 
 payments to the minor shall not be valid for services rendered 
 thereafter." 
 
 Q. A, the son of B, works for C for six months. At the expi- 
 ration of this time, the father learning of the employment, serves 
 notice in writing on the employer, instructing him not to pay 
 any more wages to the son. C does not heed the notice and 
 pays the wages as before. The parent subsequently brings suit 
 for the wages that accrued after the serving of the notice. C 
 defends, claiming that the notice was not served in time. Judg- 
 ment for whom and why? 
 
 A. Judgment for the parent. "It was not the purpose of the 
 legislature to prevent a parent from collecting the wages of a 
 minor child, if he failed to give notice within the time specified 
 (thirty days). Subsequent notice would enable him to collect 
 the infant's future earnings, but would not affect prior pay- 
 ments." McClurg v. McKercher, 40 State Rep. 603. 
 
224 DOMESTIC EELATIONS 
 
 (Note.) Where the father of a minor child who resides with his parents, 
 neglects to serve upon the child's employers a notice that he claims the child's 
 wages, the title to such wages vests in the child; and when the child pays the 
 wages to his mother, the latter obtains a valid title thereto. The father of a 
 minor obtains no title to money acquired by a minor in the purchase and 
 sale of property at a profit. Watson v. Kemp, 42 App. Div. 372. 
 
 Q. A comes to you and says that he wishes to adopt B, the 
 child of C, who was thirteen years of age. Both of B's parents 
 are living. What steps would you take to secure the adoption 
 of the child in a legal manner? 
 
 A. It is necessary to secure the consent of the child, and the 
 consent of the child's parents. This practice is governed by 
 sec. Ill of the Dom. Rel. Law (Consolidated Laws, chap. 14), 
 which is as follows : ' ' Consent to adoption is necessary as follows : 
 1. Of the minor, if over twelve years of age. 2. Of the foster 
 parent's husband or wife, unless lawfully separated, or unless 
 they jointly adopt such minor. 3. Of the parents or surviving 
 parfent of a legitimate child, and of the mother of an illegitimate 
 child; but the consent of a parent who has abandoned the child, 
 or is deprived of civil rights, or divorced because of his or her 
 adultery or cruelty, or adjudged to be insane or to be an habit- 
 ual drunkard, or judicially deprived of the custody of the child 
 on account of cruelty or neglect, is unnecessary. 4. Of a person 
 of full age having lawful custody of the child, if any such person 
 can be found, where the child has no father or mother living or 
 no father or mother whose consent is necessary under the last 
 subdivision. If such child has no father or mother living, and 
 no person can be found who has the lawful custody of the child, 
 the judge or surrogate shall recite such facts in the order allow- 
 ing the adoption." Section 112 deals with the requisites neces- 
 sary for voluntary adoption. 
 
 Q, A minor chUd was legally adopted by A and B, husband 
 and wife. What are the rights and duties of the child with re- 
 gard to its foster parents and its natural parents? From whom 
 does it inherit, and to what extent? 
 
 A. This question is fully answered by sec. 114 of the Dom. 
 Rel. Law, which is as follows: "Thereafter the parents of the 
 
DOMESTIC RELATIONS 225 
 
 minor are relieved from all parental duties toward, and of all 
 responsibility for, and have no rights over such child, or to his 
 property by descent or succession. Where a parent who has se- 
 cured a divorce, or a surviving parent, having lawful custody of 
 a child, lawfully marries again, or where an adult unmarried 
 person who has become a foster parent and has lawful custody 
 of a child, marries, and such parent or foster parent consents 
 that the person who thus becomes the stepfather or stepmother 
 of such child may adopt such child, such parent or such foster 
 parent, so consenting, shall not be thereby relieved of any of his 
 or her parental duties toward, or be deprived of any of his or her 
 rights over said child, or to his property by descent or succes- 
 sion. The child takes the name of the foster parent. His rights 
 of inheritance and succession from his natural parents remain 
 unaffected by such adoption. The foster parent or parents and 
 the minor sustain toward each other the legal relation of parent 
 and child, and have all the rights and are subject to all the duties 
 of that relation, including the right of inheritance from each 
 other, except as the same is affected by the provisions in this sec- 
 tion in relation to adoption by a stepfather or stepmother, and 
 such right of inheritance extends to the heirs and next of kin of 
 the minor, and such heirs and next of kin shall be the same as if 
 he were the legitimate child of the person adopting, but as re- 
 spects the passing and limitation over of real or personal property 
 dependent under the provisions of any instrument on the foster 
 parent dying without heirs, the minor is not deemed the child 
 of the foster parent so as to defeat the rights of the remainder- 
 men." 
 
 Q. A, a female eighteen years of age, who is under the guard- 
 ianship of B, marries C. A's estate in the hands of B amounts 
 to $10,000. She now consults you as to her legal status. Advise 
 her. 
 
 A. The guardianship over the person ceases with the mar- 
 riage of the female, but the guardianship over her property 
 continues during her minority. Section 84 of the Dom. Rel. 
 Law. 
 15 
 
226 DOMESTIC RELATIONS 
 
 Q. A minor for whom a general guardian has not been ap- 
 pointed acquires real property. State the rule as to the several 
 persons in the order, to whom the guardianship of his property, 
 with the rights, powers and duties of a guardian in socage be- 
 longs. 
 
 A. Section 80 of the Dom. Rel. Law provides as follows: 
 "Where a minor for whom a general guardian of the property 
 has not been appointed shall acquire real property, the guar- 
 dianship of his property with the rights, powers and duties of a 
 guardian in socage belongs: 1. To the father. 2. If there be no 
 father, to the mother. 3. If there be no father or mother, to the 
 nearest and eldest relative of full age, not under any legal in- 
 capacity; and as between relatives of the same degree of con- 
 sanguinity, males shall be preferred. The rights and authority 
 of every such guardian shall be superseded by a testamentary 
 or other guardian appointed in pursuance of this article." 
 
 Q. A, the general guardian of B, spent the sum of $1,000 
 of his (A's) own money, without an order of the court, in im- 
 proving certain property belonging to B. B, upon coming 
 of age, sells the property. A demands the $1,000, and upon 
 the refusal of B to pay the same, brings action against him. 
 Judgment for whom and why? 
 
 A. Judgment for B. "As a general rule, a guardian is not 
 authorized to dispose of the property or expend money on 
 behalf of his ward, except for his maintenance and education, 
 without the order of a court of equity. Where a guardian 
 advances money out of his own pocket, for the erection of 
 buildings upon the land of his ward, without the order of a 
 court of equity, he cannot recover the amount from his ward." 
 Hassard v. Rowe, 11 Barb. 22. See also Copley v. Oneil, 57 
 Barb. 299; Hickey v. Dixon, 42 Misc. 4. Section 83 of the 
 Dom. Rel. Law has not changed this rule. 
 
 Q. A, the general guardian of B, an infant, by carelessness 
 and negligence, permits a waste of $1,000 on the property 
 of B. What relief, if any, has B? 
 
DOMESTIC RELATIONS 227 
 
 A. A loses the guardianship of B, and shall forfeit to the 
 ward treble damages. Section 83 of the Dom. Rel. Law. 
 
 Q. A, whose wife has been granted a divorce against him 
 for his infidelity in this state, promises to marry B, an un- 
 married female. He subsequently refuses to do so, and B 
 sues him for breach of promise. Can the action be maintained? 
 Give your reasons. 
 
 A. The action cannot be maintained if B knew of A's former 
 marriage and divorce. Otherwise if she was ignorant of the 
 facts. Haviland v. Halstead, 34 N. Y. 643. "An action may 
 be maintained upon a married man's breach of contract to 
 marry, provided that the contract was entered into by the 
 woman in ignorance of the promisor's existing marriage." 
 Cammerer v. MuUer, 14 N. Y. Suppl. 511. In that case. 
 Van Brunt, J., says: "We are cited to the case of Haviland v. 
 Halstead, 34 N. Y. 643, but it expressly appeared in that case 
 that the plaintiff knew of the condition of the defendant, and 
 consequently a recovery could not be had; and our attention 
 has been called to no case holding that, because one party 
 enters innocently into a contract, and the other is incapaci- 
 tated from fulfilling it, and has entered into the contract with 
 fraudulent intent the innocent party has no remedy. Such a 
 rule would be offering a premium upon villainy. It cannot 
 be that where a man induces a woman to enter into a promise 
 of marriage, she knowing of no disability, that she cannot 
 recover damages for the breach of such contract, if it turns out 
 that he is incapable of fulfilling it." This case was affirmed 
 by the Court of Appeals in 133 N. Y. 623. See also Blattmacher 
 V. Saal, 29 Barb. 22; Kerns v. Hagenbuchle, 17 N. Y. Suppl. 
 367. In the last two cases cited a recovery was allowed on 
 the ground that the defendant impliedly promised that there 
 was no impediment to his performing his promise. 
 
 Q. A young lady nineteen years of age, brings an action 
 against a man of full age for breach of promise to marry. About 
 the same time, she herself is sued for breach of promise of 
 
228 DOMESTIC EELATION8 
 
 marriage by another man, also of full age. Will either action 
 lie? If so, which one? 
 
 A. Her action will lie, while the action against her will not. 
 "The contract to marry by an infant is not void; but voidable 
 at the election of the infant; yet as to persons of full age con- 
 tracting with the infant it absolutely binds; hence an infant 
 may maintain this action against an adult, but an adult not 
 against an infant." Hunt v. Peake, 5 Cowen, 475; Hamilton v, 
 Lomax, 26 Barb. 615; Fiebel v. Obersky, 13 Abb. Pr. (N. S.) 
 403; Leichtweiss v. Treskow, 21 Hun, 487. 
 
 Q. Your cUent married a woman believing her to be chaste. 
 There was no fraud on the part of the woman except conceal- 
 ment. It turned out that the woman was a notorious prosti- 
 tute, a fact which, if your client had known it, would have 
 prevented his marriage with her. He consults you. What 
 are his rights in the premises, and what remedy would you 
 pursue for him under the circumstances? 
 
 A. He has no remedy; the marriage cannot be annulled. 
 "The fact concealed from the husband that the wife before 
 marriage had been a prostitute, and also had given birth to an 
 illegitimate child, does not in itself constitute such fraud as 
 will authorize an annulment of the marriage, for antenuptial 
 unchastity is no ground for annulment." Shrady v. Logan, 
 17 Misc. 329. » 
 
 (Note.) "A marriage although consummated will be annulled for fraud 
 where the woman on inquiry of her intended husband stated that she had 
 been the wife of a man then deceased and that he was the father of her child, 
 when in truth she had been his mistress and the child was a bastard, and the 
 plaintiff did not cohabit with her after the discovery of the fraud. It is true 
 that such misrepresentation does not go to the essentials of the marriage 
 contract, as prior chastity is not a necessary qualification for marriage, but 
 chastity if insisted upon, may be made an essential qualification. Such 
 misrepresentations may be grounds for an annulment of the marriage for 
 fraud, because as a matter of law it may be material upon the question of 
 consent, which is essential to the contract of marriage." Domschke v. 
 Domschke, 138 App. Div. 454. "The free and full consent, which is of the 
 essence of all ordinary contracts, is expressly made by the statute necessary 
 
DOMESTIC EELATIONS 229 
 
 to the validity of the marriage contract. The minds of the parties must 
 meet in one intention. It is a general rule that every misrepresentation of a 
 material fact, made with the intention tp induce another to enter into an 
 agreement and without which he would not have done so, justifies the court in 
 vacating the agreement. It is obvious that no one would obligate himself 
 by a contract, if he knew that a material representation, entering into the 
 reason for his consent, was untrue. There is no vaUd reason for excepting 
 the marriage contract from the general rule. If the plaintiff proves to the 
 satisfaction of the court that, through misrepresentation of some fact, which 
 was an essential element in the giving of his consent to the contract of mar- 
 riage and which was of such a nature as to deceive an ordinarily prudent 
 person, he has been victimized, the court is empowered to annul the mar- 
 riage." Gray, J., in DiLorenzo v. DiLorenzo, 174 N. Y. 467. 
 
 Q. A brings an action against B, his wife, for divorce on the 
 ground of adultery, and the only evidence he has is a written 
 confession of her adultery with C. Will judgment be given 
 him? Answer fully. 
 
 A. No. He must have some corroboration of the confession. 
 "A judgment for absolute divorce will not be granted on the 
 confession of the defendant alone; and in order to justify such 
 a judgment upon a confession, there must be such corrobora- 
 tion of the confession as will remove all just suspicion of col- 
 lusion." Fowler v. Fowler, 29 Misc. 670. "To justify the 
 court in awarding a judgment of absolute divorce upon the 
 confession of the party charged with adultery, the circum- 
 stances attending such confession must be shown to be of a 
 character that precludes all suspicion of collusion, and as a 
 rule such confession should be corroborated by other proof." 
 Diederichs v. Diederichs, 44 Misc. 591. See also Lyon v. Lyon, 
 62 Barb. 138; Madge v. Madge, 42 Hun, 525. 
 
 Q. A girl sixteen years of age, while living with her parents, 
 marries B, who is twenty years of age, without the consent 
 of her parents. The father of the girl brings an action against 
 B to annul the marriage. B demurs on the ground that: 1. The 
 complaint does not state facts sufficient to constitute a cause 
 of action, and 2. That the father is not the proper party plain- 
 tiff. What is your opinion on each of these points? Is the 
 
230 COMBSI'IC DELATIONS 
 
 defense good? Suppose B had brought the action on the ground 
 that the girl was only sixteen years of age at the time of the 
 marriage. Could the action be maintained? 
 
 A. B's demurrer should be overruled, for the age of consent 
 is eighteen years for females as well as males under sec. 7 of 
 the Dom. Rel. Law, and the father is the proper party to main- 
 'tain the action under sec. 1744 of the Code of Civil Procedure, 
 which latter section prohibits B from bringing the action as he 
 was above the age of legal consent. Section 1744 of the Code 
 is as follows : ' ' An action to annul a marriage, on the ground that 
 one of the parties had not attained the age of legal consent, may 
 be maintained by the infant, or by either parent of the infant, or 
 by the guardian of the infant's person; or the court may allow 
 the action to be maintained by any person, as the next friend 
 of the infant. But a marriage shall not be annulled, at the 
 suit of a party who was of the age of legal consent when it was 
 contracted, or where it appears, for any time after they at- 
 tained that age, freely cohabited as husband and wife." 
 
 Q. A brings an action against his wife, charging her with 
 having committed adultery with B. B is innocent and he 
 consults you with reference to defending his reputation in 
 the matter. What would be your advice? 
 
 A. B can at any time before the entry of judgment, appear 
 either in person or by attorney, and demand of A's attorney 
 a copy of the summons and complaint, and defend the action 
 in so far as the issues affect him. This is allowed by sec. 1757 
 of the Code of Civ. Pro. 
 
 Q. A, the wife of B, absented herself for seven years, and B, 
 believing her to be dead, married C with whom he had a child. 
 A then returns. What is the effect of the second marriage, and 
 is the issue of that marriage legitimate? Is the wife of the 
 second marriage entitled to dower in B's real estate? 
 
 A. The marriage of B with C is voidable merely, according 
 to sec. 7 of the Dom. Rel. Law. It is void from the time its 
 
DOMESTIC KELATIONS 231 
 
 nullity is declared by a court of competent jurisdiction. The 
 issue of the second marriage are deemed for all purposes the 
 legitimate children of the parent who at the time of the mar- 
 riage was competent to contract, and are entitled to succeed as 
 such in the same manner as other legitimate children, to the real 
 and personal estate of said parent. Section 1745 of the Code of 
 Civ. Pro. If the second marriage is annulled, then C is not en- 
 titled to dower in B's real estate. Price v. Price, 124 N. Y. 589. 
 
 Q. A is a child begotten out of lawful wedlock between B 
 and C. Thereafter B and C intermarry. B dies intestate, and 
 A claims to be entitled to share in the distribution of the estate 
 of B. This is opposed by the parents of B on the ground that A 
 is not the legitimate child of B. What do you say? 
 
 A. The intermarriage of B and C had the effect of legitimiz- 
 ing A, and he was entitled to share in the estate of B as though 
 he was born after the marriage of B and C. Section 24 of the 
 Dom. Rel. Law so provides. 
 
 (Note.) It is also provided by sec. 24 that "An estate or interest vested 
 or trust created before the marriage of the parents of such child (illegitimate) 
 shall not be divested or affected by reason of such child being legitimized." 
 
 Q. A and B, husband and wife, are living in a state of separa- 
 tion. There is one child living with A. A in his will leaves 
 directions for C to act as guardian of the said child. B, the 
 mother, is not an unfit person to take charge of the child. What 
 do you say as to the validity of the direction in A's will? 
 
 A. The direction is invalid; the right of the surviving parent 
 to the guardianship of the children cannot be affected by any 
 testamentary, directions of the decedent. This is provided for 
 by sec. 81 of the Dom. Rel. Law, which is as follows: "A married 
 woman is the joint guardian of her children with her husband, 
 with equal powers, rights and duties in regard to them. Upon 
 the death of either father or mother, the surviving parent, 
 whether of full age or a minor, of a child likely to be bom, or 
 of any living child under the age of twenty-one years and un- 
 married, may, by deed or last will, duly executed, dispose of 
 
232 DOMESTIC BELATIONS 
 
 the custody and tuition of such child during its minority or for 
 any less time, to any person or persons. Either the father or the 
 mother may in the lifetime of them both, by last will duly exe- 
 cuted, appoint the other the guardian of the person and property 
 of such child, during its minority, A person appointed guardian 
 in pursuance of this section shall not exercise the power or au- 
 thority thereof unless such will is admitted to probate, or such 
 deed executed and recorded as provided by sec. twenty-eight 
 hundred and fifty-one of tji^ Code of Civil Procedure." "Under 
 the Statute (now Dom. Rel. Law, sec. 81), the surviving parent 
 has the sole right to appoint the testamentary guardian of a 
 child, and his or her right to the custody of the child is absolute, 
 provided such parent be a fit person." People ex rel. Byrne v. 
 Brugman, 3 App. Div. 155. 
 
 Q. The defendant B is the father of the plaintiflF A. When 
 the plaintiff was sixteen years old, the defendant persuaded 
 her to remain at home and work for him promising to pay her 
 for the work done. Plaintiff who has just become of age de- 
 mands the money, which is refused. She brings this suit for 
 the amount. Defendant concedes the fact as stated, admits 
 that plaintiff performed the work, but claims that she was 
 bound to do so. What are the rights of the parties and why? 
 
 A. The plaintiff cannot recover, as the defendant's promise 
 was gratuitous. A father is entitled to the services of his 
 minor daughter until she attains the age of twenty-one years. 
 As to such services, there was no consideration for the defend- 
 ant's promise. Bolton v. Terpenny, 14 Weekly Dig. 533 ; Lind v. 
 SuUestadt, 21 Hun, 364; Otis v. Hall, 117 N. Y. 131. Of course 
 if the infant is emancipated, a different rule prevails, for then 
 as said by Earl, J., in Kain v. Larkm, 131 N. Y. 300: "It is the 
 undoubted rule of law in this state, that a father may emanci- 
 pate his minor child even by parol, and after such emancipa- 
 tion may make contracts with him, and become liable to pay 
 him for wages." 
 
 Q. A man is sued for necessaries furnished to his son by a 
 stranger. Plaintiff proves that the infant was without neces- 
 
DOMESTIC RELATIONS 233 
 
 sary clothing, and that the clothmg furnished by him to the 
 infant was not unfitted to the infant's station in life. Plaintiff 
 now rests, and asks for judgment on the facts proved. What 
 should the judgment be? 
 
 A. Judgment for the defendant. The plaintiff in addition 
 to the facts proved, should have shown that the father refused 
 or neglected to furnish the necessary clothing. "Inasmuch as 
 a parent is under a natural obUgation to furnish necessaries 
 for his infant children, if the parent neglect the duty, any per- 
 son who supplies such necessaries is deemed to have conferred 
 a benefit on the delinquent parent, for which the law raises an 
 implied promise on the part of the parent to pay; but in order 
 to authorize any person to act for the parent in such a case, 
 there must be a clear and palpable omission of duty in that 
 respect on the part of the parent." Van Valkenberg v. Watson, 
 13 Johns. 430; Gray v. Sands, 66 App. Div. 572. 
 
 Q. An infant who is living with his parent buys certain cloth- 
 ing from a merchant. The clothing was necessary and suitable 
 to the station in life of the infant. The goods were sold to the 
 infant without the consent of the father. Can the merchant 
 recover from the infant? 
 
 A. No. An infant who resides at home under the care of a 
 parent, and is supported by him, cannot bind himself for neces- 
 saries. Wailing v. Toll, 9 Johns. 141 ; Murphy v. Holmes, 87 
 App. Div. 366. "An infant is only liable for necessaries when 
 he has no other means of obtaining them except by a pledge of 
 his personal credit. If an infant is under the care of a guardian 
 or parent who has the means and is willing to furnish what is 
 actually necessary, he cannot, without the consent of such 
 parent or guardian, make a binding contract for articles which 
 under other circumstances would be necessaries." Kline v. 
 L'Amoreux, 2 Paige, 419. 
 
 Q. An infant living apart from his father contracts certain 
 debts for board and lodging. On his failure to pay he is sued, 
 and interposes the defense of infancy. The creditor proves the 
 
234 DOMESTIC RELATIONS 
 
 debt, and then rests his case. Can he recover against the in- 
 fant? 
 
 A. No. He must show that the father failed or refused to 
 provide for the infant. "A father is bound by law to support 
 his minor child, and board and lodging furnished by a third 
 party to the child, in the absence of proof that the father has 
 not the ability, or refuses to support him, do not constitute 
 necessaries within the rule which renders an infant liable there- 
 for." Goodman v. Alexander, 28 App. Div. 227. This case 
 was reversed by the court of appeals, but merely on a technical 
 question of pleading. The rule of substantive law laid down by 
 the appellate division was not questioned, as will be seen from 
 the opinion of Parker, Ch. J. (Goodman v. Alexander, 165 N. 
 Y. 289), which in part is as follows: "That the obligation rests 
 upon a father or other person standing in loco parentis, who has 
 the ability to do so, to support his infant children even though 
 they have an estate of their own, and that therefore one who 
 furnishes board and lodging to infants so situated, cannot re- 
 cover against them is well settled law." 
 
 Q. A young man on his twentieth birthday, his father con- 
 senting, entered into a contract in writing with a merchant, to 
 work as a clerk two years for the sum of $720, being at the 
 rate of $30 a month, which was all that his services were rea- 
 sonably worth. At the end of the third month, the clerk quit 
 work, refusing to perform his contract. The clerk claims the 
 salary agreed upon from the merchant for the time he worked; 
 the merchant claims damages by way of recoupment for the 
 avoidance of the contract. State fully the legal rights and 
 remedies of the parties. Give your reasons. 
 
 A. The infant can recover for the services actually rendered. 
 The merchant cannot recover damages by way of recoupment. 
 Where a party enters into a contract, and having performed 
 part of it, without the consent of the master, voluntarily aban- 
 dons further performance of it, he cannot maintain an action 
 for the labor actually performed; as the contract is entire, a full 
 
DOMESTIC KELATIONS 235 
 
 performance is necessary to plaintiff's right of action, and is a 
 condition precedent. Jennings v. Camp, 13 Johns. 94. The 
 case of infants is an exception to this rule. " In an action by an 
 infant to recover for work and labor, it is neither a defense nor 
 a ground for reducing the damages, that the work was done 
 under a contract by the infant to labor for the defendant for a 
 fixed period of time, which he violated by leaving the defend- 
 ant's employ without cause before the time expired." Whit- 
 marsh V. Hall, 3 Denio, 375; Streeser v. Buch, 62 Him, 298; 
 Aborn v. Janis, 62 Misc. 95. 
 
 Q. A, an infant, buys goods of B, at the same time repre- 
 senting that he is of full age. B sues for the purchase price 
 of the goods. A sets up infancy as a defense. Judgment for 
 whom and why? 
 
 A. Judgment for A. The fraud did not charge the infant 
 with a legal liability on the contract of purchase, and as B 
 seeks to enforce the contract, not to recover damages result- 
 ing from the fraud, he is not entitled to recover. Studwell v. 
 Shapter, 54 N. Y. 249. "It is well settled in this state that 
 in an action upon a contract made by an infant he is not es- 
 topped from pleading his infancy by any representation as to 
 his age made by him to induce another person to contract 
 with him." International Text Book Co. v. Connelly, 206 
 N. Y. 197. 
 
 (Note.) "For his torts generally, where they have no basis in any contract 
 relation, an infant is liable just as any other person would be; but the doc- 
 trine is equally well settled that a matter arising ex contractu, though in- 
 fected with fraud, cannot he changed into a tort, in order to charge the infant 
 by a change of the remedy; a fraudulent act, to render the infant chargeable 
 therewith must be wholly tortious. If the action is substantially grounded 
 in contract he is not liable. The test of an action against an infant is whether 
 a liability can be made out without taking notice of the contract." Bar- 
 lett, J., in CoUins v. Gifford, 203 N. Y. 468. 
 
 Q. A, an infant eighteen years of age, conveys certain real 
 estate to B, his father. He spends the money received from 
 
236 DOMESTIC RELATIONS 
 
 the sale, and on coming of age demands the property. Was 
 the conveyance valid? What are the rights of the parties? 
 
 A. The conveyance is voidable at the election of the infant, 
 who can recover the property without restoring the considera- 
 tion. "Where a son during infancy conveys real estate to 
 his father, receiving and expending or wasting the considera- 
 tion therefor, before his arrival at full age, and has no other 
 property with which to replace it, he may disaffirm his deed 
 after he arrives at full age, without restoring or offering to 
 restore the consideration. Mere acquiescence by the son, with- 
 out any affirmative act for three years after his arrival at full 
 age, is not a ratification of the conveyance." Green v. Green, 
 69 N. Y. 553. 
 
 (Note.) In Kane v. Kane, 13 App. Div. 544, an infant mortgaged his 
 lands, received and squandered the money. After he became of age he dis- 
 affirmed the mortgages, and it was held that they were not a lien on the 
 infant's land, and that the restitution of the consideration of the mortgages 
 was not ^ necessary condition precedent to the effectual disaffirmance of 
 them. In Eagan v. Scully, 29 App. Div. 617, aff'd in 173 N. Y. 581, it was 
 said: "It is a general rule that a conveyance by an infant is valid until it is 
 avoided by him after arriving at full age, and that he is entitled to exercise 
 his right of avoidance at any time within the term of the Statute of Limita- 
 tions after his majority. It has been held that mere delay in taking advantage 
 of this privilege will not work a waiver or a ratification, and that ratification 
 is a matter of intention and will not be inferred by a bare recognition or a 
 silent acquiescence in it, for any time less than the period of statutory limi- 
 tation." See also OTDonohue v. Smith, 130 App. Div. 214. 
 
 Q. A is the father of B, a daughter and only child who is 
 married to C. B has no property or means of any kind. C is 
 very wealthy and refuses to support or assist A who is unable 
 to work and is without any means of support. Can A compel 
 C to assist and contribute towards his support? 
 
 A. No. While a child or grandchild is bound to support 
 an indigent parent or grandparent, a son-in-law is not. The 
 statute has reference to natural relatives only. Ex parte Hunt, 
 5 Cow. 284. See sees. 914 to 926, inclusive, of the Code of 
 Criminal Procedure. 
 
DOMESTIC RELATIONS 237 
 
 Q. A, the wife of B, takes out a policy of insurance on the 
 life of B for $10,000, the annual premium therefor being $1,000, 
 which was paid for by the husband out of his own property. 
 B died leaving no property but debts to the amount of $10,000. 
 Who is entitled to the $10,000 due from the insurance company 
 on the policy? 
 
 A. The wife is entitled to $5,000, being the amount of in- 
 surance purchasable for $500, and the creditors are entitled 
 to $5,000, being the amount of insurance purchasable in ex- 
 cess of $500 premium. This is provided for in sec. 52 of the 
 Dom. Rel. Law as follows: "A married woman may, in her own 
 name, or in the name of a third person, with his consent, as her 
 trustee, cause the life of her husband to be insured for a definite 
 period, or for the term of his natural life. Where a married 
 woman survives such period or term she is entitled to receive the 
 insurance money, payable by the terms of the policy, as her sepa- 
 rate property, and free from any claim or representative of her 
 husband, except, where the premium actually paid annually 
 out of the husband's property, exceeds five hundred dollars, 
 that portion of the insurance money which is purchased by 
 excess of premium above five hundred dollars, is primarily 
 liable for the husband's debts." 
 
CHAPTER X 
 
 Equity 
 
 Q. State three maxims of equity, and give a state of fact 
 wherein one of them will apply. 
 
 A. "He who seeks equity must do equity." "Equity con- 
 siders that as done which ought to have been done." "He who 
 comes into equity, must do so with clean hands." An example 
 is: Where one, on the due day of a mortgage, has tendered the 
 amount of the mortgage to the mortgagee, and the latter has 
 refused the same, if the mortgagor then goes into equity asking 
 that the mortgage be canceled of record, he cannot obtain re- 
 Uef unless he keeps the tender good. Now while it is not neces- 
 sary that you continue a tender in force for the purpose of re- 
 moving the lien of the mortgage, yet if you desire affirmative 
 relief in equity as you do in this case, where you desire the 
 mortgage to be canceled of record, equity says to you, you are 
 asking our aid, you are coming into equity for affirmative re- 
 lief, therefore you must do equity, and to do equity, you must 
 offer to pay that money here and now by continuing the tender 
 which you originally made. See Tuthill v. Morris, 81 N. Y. 94. ' 
 
 Q. A agreed with B by written contract to sell and convey 
 to the latter a certain house and lot for $10,000. Title to the 
 house and lot was to be given the following day when B was to 
 pay for the same and take his deed from A, and the contract 
 was to be completed. Without any fault or negligence on the 
 part of A or B, that night, the house which was worth 90% of 
 the value of the property was totally destroyed by fire. Upon 
 whom does the loss fall, and for what reason? In whom was 
 the equitable title to the property at the time of the fire? 
 
 A. The vendee held the equitable title and therefore the loss 
 238 
 
EQUITY 239 
 
 must fall upon him. "A loss by fire, or other accident, not due 
 to the fault of the vendor, must fall upon the vendee, when the 
 title is satisfactory and the contract is, therefore, capable of 
 being specifically performed by the vendor. While at law the 
 legal title may be said to be unaffected by the contract, a court 
 of equity regards that which is agreed to be done as actually 
 performed." Sewell v. Underbill, 197 N. Y. 172. 
 
 Q. A and B enter into an agreement in New York City, 
 whereby B agrees to convey to A certain mining lands in Cali- 
 fornia. B fails to deliver the deed on the day agreed upon. A 
 brings suit in New York for specific performance. B defends 
 on the ground that the court has not jurisdiction. Is the de- 
 fense good? What maxim of equity is involved? 
 
 A, The defense must fail, as the court obtained jurisdiction 
 of the person of the defendant by his appearance and answer, 
 and therefore has the power to compel him to convey the land 
 even though it was situated without the state. The maxim 
 involved is : " Equity acts in personam." It matters not where 
 the "res," the subject-matter of the contract, is situated; so 
 long as the person is within the jurisdiction of the court, equity 
 can force him to specifically perform. The decrees of a court 
 of equity command a person to do a certain act, and if he fails 
 to do so, the court will imprison him for contempt. The court 
 of equity, unlike a court of law, acts upon the person, and not 
 upon the thing which is the subject-matter of the contract. 
 This principle has been very well settled since the early and 
 historic case of Peim v. Lord Baltimore, 1 Ves. 444, and is uni- 
 formly followed in this state. Gardner v. Ogden, 22 N. Y. 327, 
 333; De Klyn v. Watkins, 3 Sandf. Ch. (N. Y.) 185. 
 
 Q. An insolvent merchant executed a voluntary conveyance 
 to his son. Afterwards having effected a compromise with his 
 creditors, he requests his son to reconvey. What are the rights 
 of the father and son? What principle of equity is involved? 
 
 A. The father cannot force a reconveyance. The equitable 
 maxim involved is: "He who comes into equity must do so 
 
240 EQUITY 
 
 with clean hands." Voluntary conveyances are effectual be- 
 tween the parties and cannot be set aside by the grantor, al- 
 though he afterwards becomes dissatisfied with the transac- 
 tion. Proseus v. Mclntyre, 5 Barb. 424; Renfrew v. McDonald, 
 11 Hun, 254. " A conveyance of land made in payment of a 
 debt owing by the grantors, upon an understanding embodied in 
 a contract executed by the parties immediately after the delivery 
 of the deed, that the land is to be reconveyed to the wives of 
 the grantors upon the payment of the debt and interest, is 
 fraudulent as against the creditors of the grantors. As between 
 the parties themselves to the transaction, the deed is valid." 
 Harris v. Osnowitz, 35 App. Div. 594. 
 
 Q. A and B are adjoining property owners, and agree not to 
 build within forty feet of the street. A builds within forty feet 
 of the street, B not raising any objection thereto. Subsequently 
 B starts to build within forty feet of the street, and A comes to 
 you for advice and asks you if he can prevent B from so build- 
 ing. What would you tell him? What equitable principle is 
 involved? 
 
 A. A cannot prevent B from building, he having already 
 violated the agreement by himself building within the pro- 
 hibited distance. The maxim involved is: "He who comes 
 into equity, must do so with clean hands." Sinsheimer v. U. 
 G. W. of A., 77 Hun, 218; Weiss v. Herlihy, 23 App. Div. 608. 
 
 Q. A began an action in equity to restrain by injunction pro- 
 ceedings the collection of $1,000 taxes, $500 of which was ille- 
 gally levied. What maxim of equity is involved in this transac- 
 tion? What condition should the court exact? 
 
 A. The court should compel A to pay the $500 which was 
 legally levied, on the principle that: "He who seeks equity 
 must do equity." Having sought the affirmative aid of a court 
 of equity, he must act equitably, that is, pay the amount which 
 is justly due. Neblet v. McFarland, 92 U. S. 101. 
 
 Q. A who was injured through negligence of the X Railway 
 Co. brought an action to recover damages for his injuries. 
 
EQTJITY 241 
 
 Through the fraud and deceit of the attorney for the railway 
 company he was induced to settle his claim for a small consider- 
 ation. He now comes to you and asks what remedy he can 
 pxirsue, if any. What is your advice? What equitable maxim 
 is involved? Answer fully. 
 
 A. He can go into equity and ask that the settlement be set 
 aside, but before doing so he must tender back the amount he 
 received. The equitable maxim involved is: "He who comes 
 into equity must do equity." "Under the facts of this case, if 
 plaintiff so desires, he may file a bill in equity for the purpose 
 of attacking and testing the validity of the settlement had be- 
 tween the parties, and of the written release executed in con- 
 nection therewith. It is necessary for a tender to be made by 
 plaintiff of the money received by him as a prerequisite to the 
 exercise of the right of rescission. It is not questioned that the 
 general rule is that where a party seeks to rescind a contract 
 on the ground of mistake or fraud, and thereby seeks to re- 
 lieve himself of the burdens imposed by. the contract, he should 
 not be permitted to retain the benefits. Seeking equity he 
 must do equity." Vandervelden v. Ry. Co., 61 Fed. Rep. 54. 
 
 Q. A gives a mortgage on his land to B as security for the 
 payment of two notes made by A payable to B. One of the 
 notes was given at a usurious rate of interest. A brings action 
 in equity, seeking to have the mortgage canceled of record. 
 Can the action be maintained? If not, why not? If so, what 
 condition will the court impose before granting relief? What 
 equitable maxim applies? 
 
 A. Equity will compel A to pay the amount of the legal note 
 upon the principle that: "He who seeks equity must do equity." 
 "Where a mortgage has been given upon lands, in order to 
 secure the payment of several promissory notes, a part of which 
 notes are usurious and a part of which are bona fide, although 
 the mortgage is void, equity will require the plaintiff to do 
 equity by paying or tendering payment of the amount of the 
 valid notes covered by the mortgage, before it will entertain a 
 16 
 
242 EQUITY 
 
 suit to cause the mortgage to be delivered up to be canceled as 
 a cloud upon title." Williams v. Fitzhugh, 37 N. Y. 444. See 
 also House v. Carr, 185 N. Y. 457. 
 
 Q. A gives a mortgage on his farm for $10,000; the mort- 
 gage provides for a usurious rate of interest. A brings an action 
 to set aside the mortgage on account of the usury. Can he 
 maintain the action? What condition, if any, will the court 
 exact? What maxim of equity arises? 
 
 A. A can maintain the action, and the court cannot impose 
 any condition for granting relief. The maxim of equity which 
 arises is: "He who seeks equity must do equity." In some 
 other jmisdictions the borrower is compelled to repay the 
 amoimt of the loan with legal interest as a condition for obtain- 
 ing the reUef. But in this state the rule is different according 
 to our Statute, sees. 373 and 377 of the General Business Law 
 (Consolidated Laws, chap. 20). "The mere fact that a party 
 has made an agreement or given a security which is void for 
 usmy, is not sufficient to entitle him to apply to a court of equity 
 to have the contract aimulled. The right to this relief exists 
 only when, from the form of the security, the defense cannot 
 be made available at law, or where the instrument sought to 
 be avoided is a cloud upon the title to land, or some other 
 necessity for the interposition of a court of equity is shown." 
 Allerton v. Belden, 49 N. Y. 373. 
 
 Q. A loaned to B $5,000, taking a mortgage of $6,000 on B's 
 lands. After paying the interest on the mortgage for several 
 years B died, leaving a will in which he devises the mortgaged 
 lands to his son C. C thereafter commences an action for the 
 surrender and cancellation of the mortgage on the ground that 
 the same was usurious when made. B defends. Who should 
 have judgment and why? 
 
 A. Judgment for B, as the right to have a mortgage can- 
 celled for usury is merely personal to the borrower only. ' ' The 
 privilege given to a borrower by the usury act to go into a court 
 of equity without doing equity is purely personal and does not 
 
EQUITY 243 
 
 upon his death pass to his heirs, devisees or representatives. 
 Neither the executor nor devisee of a mortgagor is a 'borrower' 
 within the meaning of the statutes, and therefore they cannot 
 maintain an action for the cancellation of a usurious mortgage, 
 without first paying, or offering to pay, the sum actually loaned. 
 Buckingham v. Corning, 91 N. Y. 525. 
 
 Q. A who is in pressing need of money, tells B that if he will 
 let him have $5,000, he will give him a mortgage on his real 
 estate. B advances the $5,000, but A refuses to give the mort- 
 gage. What are the rights of B? 
 
 A. B can sue to recover back the money loaned, or he can 
 compel A to execute a mortgage; in the meantime he has a lien 
 on the property by way of equitable mortgage. Where one 
 party advances money to another, upon the faith of a verbal 
 agreement by the latter to secure the payment by a mortgage 
 on certain lands, and the mortgage is not executed, or if exe- 
 cuted, is so defective or informal, as not to effectuate the 
 purpose of its execution, equity will impress upon the land a 
 lien in favor of the creditor, upon the principle that: "Equity 
 regards as done that which ought to have been done." Sprague 
 v. Cochran, 144 N. Y. 104. 
 
 Q. Upon A's marriage his uncle B, who was the owner of a cer- 
 tain house and lot, said to A that he makes him, (A) a present 
 of the said house and lot. A at once went into possession and 
 made some expenditures in permanent improvements thereon. 
 These expenditures would amount to less than the rental value 
 of the premises while occupied by A. B when he said that he 
 makes A a present of the house and lot also said that he would 
 give him a deed thereof. B died without having made such 
 deed, and the executors of B brought an action against A in 
 ejectment to oust him of possession. A defends. Who wins 
 and why? 
 
 A. A wins. He was in possession and was the owner of the 
 equitable title, and the action was not maintainable against 
 him. The expenditures made upon permanent improvements 
 
244 EQUITY 
 
 induced by the promise constituted in equity a consideration 
 for the promise. "A parol gift of real estate and a parol prom- 
 ise to convey the same is vaUd and enforceable in equity, where 
 the donee has entered into possession of the property and made 
 permanent improvements thereon, on the faith of the donor's 
 promise, and this, although when specific performance by the 
 donee is claimed, the rental value of the property for the time 
 it has been occupied by the latter would be more than the 
 amount expended by him." Young v. Overbaugh, 145 N. Y. 
 158; Cooley v. Lobdell, 153 N. Y. 596; Canda v. Totten, 157 
 N. Y. 281; Freeman v. Freeman, 43 N. Y. 34. 
 
 Q. A sells B a horse in the presence of C who is the owner of 
 the horse. C remains quiet at the time of the transaction, and 
 subsequently sues B in replevin to recover the horse. Can the 
 action be maintained? What equitable principle is involved? 
 
 A. No, the action cannot be maintaiaed. The principle in- 
 volved is that of equitable estoppel, or estopped in pais. C, 
 having remained quiet, when another was selling his property 
 as his own, is estopped from setting up his title against the 
 purchaser. The maxim that: "He who has been silent, when in 
 conscience he ought to have spoken, shall be debarred from 
 speaking, when conscience requires him to be silent," applies 
 in this case. Grisslor v. Powers, 81 N. Y. 57; Hamlin v. Sears, 
 82 N. Y. 327; Geiler v. Littlefield, 148 N. Y. 603. 
 
 Q. A stood by and allowed B to sell as his own A's wagon to 
 C, of the value of $500 for cash. A said nothing. He had an 
 opporttmity to tell the facts, but did not do so. C knew that 
 A owned the wagon at the time, but relied upon A's silence to 
 give him title. B has spent the $500, and is insolvent. A de- 
 mands the wagon of C, and threatens to replevy it. C consults 
 you. What would be your advice? 
 
 A. A can recover the wagon. The doctrine of equitable 
 estoppel can have no application to a case, where the party was 
 not deceived by the owner's silence. Here C, knowing that the 
 
EQUITY 245 
 
 title to the wagon was in A, was not misled by A's failure to 
 speak, and therefore cannot invoke the doctrine of equitable 
 estoppel. Wilcox v. Howell, 44 N. Y. 398; Royce v. Watrous, 
 73 N. Y, 597. 
 
 Q. A dies and by his will leaves certain real property to 
 trustees with directions to sell the same and apply the proceeds 
 to the use of B, his only son. B dies intestate. How should the 
 property be distributed? What equitable principle is involved? 
 
 A. The property should be distributed according to the stat- 
 ute of distribution of personal property. Equity, regarding 
 that as done which ought to have been done, considers the real 
 estate as personal property. It is an instance of the so-called doc- 
 trine of equitable conversion. White v. Howard, 46 N. Y. 144; 
 Prentice v. Jansen, 79 N. Y. 478; Hood v. Hood, 85 N. Y. 561. 
 
 Q. A became the holder and owner of two mortgages on the 
 lands of B. When the same became due B had his wife pay 
 the said mortgages from her own separate estate, with the 
 understanding that she was to have an assignment of the mort- 
 gages made to her. However, instead of an assignment of the 
 mortgages a satisfaction was obtained and recorded all with- 
 out the knowledge of B's wife. What rights under the circum- 
 stances has the wife and what equitable principle is involved? 
 
 A. The wife can bring an action to have the record of the 
 satisfaction of the two mortgages canceled, and also to have 
 herself adjudged the owner thereof, and for their foreclosure. 
 "As between the plaintiff and her husband these mortgages 
 were never paid or satisfied. Equity does not give this wrong- 
 ful deflection of the fund the force of payment, but considers 
 what ought to be done as done. By the use of her money as 
 described, under the agreement to obtain assignments, she 
 became at once the equitable owner of those mortgages, with 
 the right to enforce them." Alden v. Barnard, 15 Misc. 513; 
 Johnson v. Parmely, 14 Hun, 398; Purser v. Anderson, 4 Edw. 
 Ch. 18. 
 
246 EQUITY 
 
 Q. A began by equitable proceedings an action of ejectment 
 to obtain possession of certain lands occupied by B for several 
 years peacefully under a claim of lawful title. B had made very 
 valuable improvements thereon. What condition will the court 
 exact before granting A's relief? Give reasons. 
 
 A. The court will compel A to pay B for the amount of the 
 improvements actually made. One cannot go into a court of 
 equity seeking to oust one who under a claim of lawful title has 
 made valuable improvements to the land which he claims, 
 unless he is willing to reimburse the party so making the im- 
 provements, because it would be inequitable to permit him to 
 retain the benefits made by the other innocently. See Thomas 
 V. Evans, 105 N. Y. 601; Putnam v. Ritche, 6 Paige, 390. 
 
 Q. A owns two pieces of land. He was indebted to B and 
 secured his indebtedness by a mortgage to B covering both 
 these tracts. He subsequently became indebted to C, and he 
 secured that debt by a mortgage covering one of the tracts only. 
 The first creditor, whose debt is secured by the mortgage cover- 
 ing the two tracts, goes to foreclose his mortgage and seeks to 
 satisfy same first out of the lot upon which his mortgage and the 
 mortgage of the other creditor are liens. C objects. What are 
 his rights? What principle of equity is involved? 
 
 A. The equitable doctrine of "marshalling assets" is in- 
 volved in this case. Equity will compel B, who holds a mort- 
 gage on both lots as security, to exhaust his mortgage as against 
 that lot not covered by C's mortgage, before resorting to the 
 lot which is subject to both mortgages. "The facts present a 
 case, where the creditor has a lien upon two funds for the 
 security of his debt, and another party has an interest in only 
 one of the funds without any right to resort to the other. In 
 such a case, equity will compel the creditor to take his satis- 
 faction out of the fund upon which alone he has an interest, so 
 that both parties may if possible escape without injury." In- 
 galls v. Morgan, 10 N. Y. 173; Farwell v. Bank, 90 N. Y. 
 490. 
 
EQUITY 247 
 
 Q. A and B each took a mortgage on the land of C at the 
 same time. It was agreed between A and B that B's mortgage 
 should be a prior lien, and B accordingly had his mortgage 
 recorded before A's. A thereafter assigned his mortgage to D 
 who knew that the mortgages of A and B were made simultane- 
 ously, but did not know that it was agreed that B's mortgage 
 should be a prior lien. B began an action for the foreclosure of 
 his mortgage, making D a party defendant as a subsequent 
 lienor. D defends on the ground that the two mortgages are 
 simultaneous and equal liens. Judgment for whom and why? 
 
 A. Judgment for B. D took the assignment of the mortgage 
 subsequent to the agreement, therefore B's lien has priority 
 and no estoppel can be claimed in favor of D, as B was under 
 no duty to seek out D and disclose to him the arrangement 
 with A, and so silence on B's part did not estop him from claim- 
 ing the preference. "In order to found an estoppel upon mere 
 silence, it must appear that there was a duty and opportunity, 
 on the part of the party keeping silent to speak, and as he was 
 conscious that his silence was, or would operate as, a fraud, and 
 knew or ought to have known that some one was relying upon 
 his silence and would be injured thereby. Collier v. Miller, 137 
 N. Y. 332. See also Viele v. Judson, 82 N. Y. 40. 
 
 Q. A owns certain lands. He gives two mortgages thereon, 
 one to B and one to C. C pays the first mortgage to B, has a 
 satisfaction written upon it and takes it. C then brings an 
 action to foreclose the first mortgage. A, the owner of the 
 land, defends on the ground that C having paid the first mort- 
 gage and taken a discharge of the same, thereby removed the 
 lien from the land, and consequently cannot foreclose this mort- 
 gage. Judgment for whom and why? What equitable doctrine 
 is involved? 
 
 A. Judgment for C. The equitable doctrine of "subroga- 
 tion" appHes in this case. Whenever to protect his own rights, 
 one pays or satisfies a debt for which another is primarily liable, 
 he is subrogated to the rights of the creditor, and may enforce 
 
248 EQUITY 
 
 against the person primarily liable all securities, benefits and 
 advantages held by the creditor. In this case, C being a second 
 mortgagee his mortgage security was subsequent in lien to the 
 first mortgage. When he paid the first mortgage, he was paying 
 a debt which was a prior Uen to the interest he had in the lands 
 by reason of his second mortgage, and being in that position 
 when he paid this first mortgage debt, he was entitled to succeed 
 to all the securities for the enforcement of that debt which the 
 first mortgagee had. The security for the enforcement of that 
 debt held by the first mortgagee was his mortgage, and conse- 
 quently equity will permit C to succeed to that security, and 
 wiU treat this transaction as in fact vesting in him by assign- 
 ment the title to the first mortgage. That being so, he may 
 maintain this action to foreclose the mortgage. Lewis v. 
 Pahner, 28 N. Y. 271; Gans v. Thieme, 93 N. Y. 225; Pease v. 
 Eagan, 131 N. Y. 262. 
 
 Q. A was the owner of a farm which was mortgaged to B 
 for $2,000. When the mortgage became due A paid B the $2,000 
 and took an assignment of the mortgage in blank. Thereafter 
 A sold the farm to C subject to the mortgage of $2,000. After 
 C had taken title to the farm, A sold the mortgage to D, a bona 
 fide purchaser, by inserting the name of D in the blank assign- 
 ment of mortgage. D then demanded payment of the mort- 
 gage from C who heard of the transaction after he had taken 
 title. Upon C's failure to pay the mortgage D began fore- 
 closure. C defends on the ground that the mortgage was paid 
 and satisfied, and demanded that the mortgage be discharged 
 of record. Judgment for whom and why? 
 
 A. Judgment for D. In Champney v. Coope, 32 N. Y. 543, 
 where the fact appeared that the money due on the mortgage 
 was paid by the mortgagor, who took back an assignment in 
 blank, which he subsequently caused to be filled in with the 
 name of the plaintiff's intestate, and then delivered the bond 
 and mortgage and assignment to the assignee, it was held that 
 equity would preserve the mortgage according to the intention 
 of the parties and the just requirements of the case; that the 
 
EQUITY 249 
 
 payment by the creditor and the taking of the assignment in 
 blank, did not necessarily extinguish the mortgage, where the 
 intent of the parties thereto was that the mortgage should be 
 kept alive, and where the equitable right of innocent parties re- 
 quired that it should be. This case has been followed in Sturges 
 V. Hart, 84 Hun, 409; Curtis v. Moore, 152 N. Y. 159. 
 
 Q. A mortgages three parcels of land to D; later sells one 
 parcel to B, another to C, and retains the third. Foreclosure 
 proceedings are conmaenced, and B and C are made parties. 
 C consults you as to his rights. What would you advise him to 
 do, and what are his rights? 
 
 A. C has a right to have the lots decreed to be sold in the 
 inverse order of their alienation. Therefore as one lot has not 
 yet been conveyed, the title to it being still retained by the 
 mortgagor, that lot must be sold first. The last conveyance 
 was made to C, therefore his lot must be sold second. The 
 third lot had previously been conveyed to B, his lot therefore 
 must be sold last. The rule is well settled in this state. N. Y. 
 Life Ins. & T. Co. v. Milnor, 1 Barb. Ch. 353; Woods v. Spald- 
 ing, 45 Barb. 602; Coles v. Appleby, 87 N. Y. 114. 
 
 Q. A was the owner of a tract of land divided into lots which 
 he sold to B, C, D and E. In each deed there was a covenant 
 running with the land that the premises should not be used for 
 any factory purpose. D leases his tract to a soap manufacturer, 
 who begins work. Can he be enjoined from doing so? 
 
 A. Yes, for an equitable easement has been imposed upon 
 the land. "Equitable easements are the rights, which neigh- 
 boring owners of lots have, to enforce in equity restrictions 
 as to the use or enjoyment of their property, which affect a 
 nvunber of lots in the same way, and were placed upon them 
 by one and the same grants. A court of equity has jurisdiction 
 to compel the observance of such a covenant, and will enforce 
 a specific performance, in the absence of evidence that there 
 has been any change in the character of the locality which has 
 rendered it inexpedient to observe the covenant, or has made a 
 
250 EQUITY 
 
 disregard of it indispensable to the practical and profitable 
 use and occupation of the premises." Trustees of Columbia 
 College V. Lynch, 70 N. Y. 440, a leading case on the subject 
 of equitable easements. See also Equitable Ass. Soc. v. Bren- 
 nan, 148 N. Y. 661. 
 
 (Note.) "A provision contained in a deed of one of three lots owned by a 
 common grantor, 'that no building or edifice of any description whatsoever 
 exceeding eight feet in height shall at any time hereafter be erected within 
 thirty-two feet of the rear line of said two lots,' not coupled with any reser- 
 vation of the condition in favor of the heirs or assigns of the grantee, will in 
 the absence of any words giving a right of re-entry for its breach, be con- 
 strued as a mere personal restriction for the benefit of the common grantor, 
 especially where the history of the land, and the purpose to which the land 
 has been devoted, show no necessity for its continuance, and the subsequent 
 deeds of the property contain no mention of the conditions, and it appears 
 that the persons who have owned the property regard the restrictions as 
 obsolete." Krekeler v. Aulbach, 51 App. Div. 591, aff'd in 169 N. Y. 372. 
 
 Q. A covenant in a deed prohibits the building of anything 
 but a dwelling house on the land. Through several convey- 
 ances the land comes into the hands of B, who commences to 
 erect a factory on the lot, claiming that the surroundings have 
 so changed that it is very unsuitable for a dwelling house. 
 It is conceded in the agreed state of facts that the covenant 
 runs with the land. Is B's contention good? If so, why so? 
 If not, why not? 
 
 A. The contention is good, for in such a case equity will 
 relieve the grantee from the restrictions imposed by the cove- 
 nants. "When the owner of lands in a city has laid it out into 
 lots, which are sold to different purchasers, each conveyance 
 containing covenants on the part of the grantee running with 
 the land, restricting the use thereon to the purpose of a private 
 residence, or prohibiting the erection thereon of certain speci- 
 fied structures, while a court of equity has power to enforce 
 the performance of those covenants, the exercise of this au- 
 thority is within its discretion, and where there has been 
 such a change in the character of the neighborhood as to 
 defeat the object and purposes of the covenants, and to 
 render it inequitable to deprive a grantee or his succes- 
 
EQUITY 251 
 
 sors in title of the privilege of conforming his property to 
 that character, such relief will not be granted, and in lieu 
 thereof damages will be allowed. The court in awarding 
 damages is not confined to those sustained before the com- 
 mencement of the action, but may award permanent damages; 
 but must require the plaintiff upon receipt of the damages 
 awarded, to execute to the defendant a release of the cove- 
 nant." Ammerman v. Deane, 132 N. Y. 355. 
 
 Q. The X Company, a telegraph corporation, with the con- 
 sent of the highway commissioners, but without the consent 
 of the property owners, placed their telegraph poles in the 
 highway, the fee to which was in the adjoining property owners, 
 subject to the usual right of the pubhc ra highways. A, an 
 adjoining property owner, comes to you for advice. Is there 
 any remedy for the owners, and if so, what? 
 
 A. The owners have an action for damages, but usually 
 no injunctions are granted in these cases. "An injunction 
 to prevent the erection in the street in front of the plaintiff's 
 lot of an electric wire pole denied, because there was no evi- 
 dence to show that if the defendant's work were allowed to 
 proceed any irreparable injury would be done, or any injury 
 which could not be compensated by pecuniary pa3Tnent, and 
 upon the further ground, that if the injunction were allowed 
 to stand, a public improvement would be obstructed for many 
 months, which in the end might be allowed to proceed." Tracy 
 v. R. R., 54 Hun, 550. 
 
 Q. A gave to B a mortgage of $10,000 on his house and lot. 
 Later he gave to C another mortgage of $5,000. B began an 
 action to foreclose his mortgage on the ground that A has failed 
 to pay taxes. C, desiring to prevent the sale of the house, as 
 the same will not bring more than the first mortgage, requests 
 you to take the necessary proceedings to prevent the same. 
 He states to you facts showing that B's mortgage is invalid. 
 What would you do? 
 
 A. C has the right to test the validity of a prior mortgage. 
 
252 EQUITY 
 
 growing out of the fact that he would have the right to redeem, 
 therefore he can take such measures to see that the fund re- 
 maining after the sale is as large as possible to cover his mort- 
 gage. C can also bring proceedings for the cancellation of 
 B's mortgage on the ground that it is invalid, and in this 
 action obtain an injunction restraining B's action of foreclosure. 
 Section 604 of the Code of Civ. Pro.; Gage v. Brewster, 31 
 N. Y. 218; Franklyn v. Hayward, 61 How. Pr. 43; Denton v. 
 Bank, 150 N. Y. 126. 
 
 Q. A is in possession of B's farm through an illegal contract 
 executed between A and B. B now seeks to oust A of the pos- 
 session, and brings an action of ejectment against A, setting 
 up the illegal contract. A demxirs. Judgment for whom and 
 why? 
 
 A. Judgment for A. A com^; of equity will not be a party 
 to an illegal contract by assisting one of the parties thereto, 
 to right a wrong. Leonard v. Poole, 114 N. Y. 371. "A court 
 of equity will not determine the respective rights and interests 
 of persons arising out of an unlawful agreement, but wUl leave 
 the parties where it finds them in all cases where the action is 
 in affirmance of such an agreement." Unckles v. Colgate, 148 
 N. Y. 529. 
 
 Q. A is the owner of certain real estate. He remains out of 
 possession for one year. During his absence, B, claiming title, 
 makes a deed conveying the property to C. C records his 
 deed and goes into possession. A, learning of these facts, 
 brings an action against C to compel him to cancel the fraud- 
 ulent deed of record, as being a cloud upon his title, that the 
 deed be delivered up to him, and for further equitable relief. 
 Can the action be maintained? If so, why so? If not, why not? 
 
 A. No. A should bring the action of ejectment. It is held 
 that a bill to remove a cloud upon title, can be maintained in 
 this state, only where the plaintiff is in actual possession of the 
 property. The reason is, that where defendant is in possession, 
 
EQUITY 253 
 
 plaintiff can bring ejectment and thus test his title at law. 
 Cox V. Clift, 2 N. Y. U8; Nichols v. Voorhis, 18 Hun, 33; West- 
 ern R. R. Co. V. Nolan, 48 N. Y. 513. 
 
 Q. A is the owner of and in possession of a certain tract of 
 land. B, a swindler, forges A's name to a deed of the property. 
 B has a false certificate of acknowledgment added, and puts 
 the deed on record, C, a confederate, being named as grantee. 
 A brings action for the removal of the deed from the record 
 as a cloud upon his title. Can the action be maintained? 
 State your reasons. 
 
 A. Yes. "Where the law raises a presumption without 
 direct proof of the validity of a conveyance, and its invalidity 
 can only be made to appear by extrinsic evidence, a case is 
 presented for the exercise of the jurisdiction of a com-t of equity, 
 to compel the surrender and cancellation of a conveyance as a 
 cloud upon title. Such is the case of a forged deed, which on 
 the strength of a false certificate of acknowledgment, has 
 been put on record." Remington Paper Co. v. O'Dougherty, 
 81 N, Y. 474. 
 
 (Note.) "An action to remove a cloud upon title, or to restrain a sale or 
 conveyance, upon the ground that it would create such a cloud, can only be 
 maintained where the pretended title, which is alleged to constitute the 
 cloud, or the proceeding which it is apprehended will create one, is apparently 
 valid on its face, and the party in possession will be compelled to resort to 
 extrinsic evidence to show the invalidity of the pretended title, and to de- 
 fend his own. But, when the pretesnded claim is invalid on its face, or where 
 it requires extrinsic facts to be proved for the purpose of establishing its 
 validity, a court of equity will not interfere on the ground that the facts 
 which are essential to sustain the pretended claim do not exist, but will leave 
 the party in possession to his defense. These are the general and well-settled 
 rules." Rapello, J., in Lehman v. Roberts, 86 N. Y. 239. See also Scott v. 
 Onderdonk, 14 N. Y. 9; Fonda v. Sage, 48 N. Y. 173. 
 
 Q. A borrows $10,000 of B and gives as security a deed of 
 his house and lot. The deed was absolute on its face. The 
 loan was to be returned in one year with interest. At the 
 expiration of the year, A tendered to B $10,000 and the inter- 
 est due, and demanded a reconveyance. B refused to reconvey, 
 
254 , EQUITY 
 
 claiming that he had bought the land. What is the nature of 
 the transaction between them? State the remedy, if any. 
 
 A. A can bring an action in equity to have the deed de- 
 clared a mortgage. "The rule that a deed absolute on its face 
 can in equity be shown by parol or other extrinsic evidence 
 to have been intended as a mortgage, has been upon the fullest 
 consideration dehberately estabhshed in this state, and will 
 not be departed from." Horn v, Keteltas, 46 N. Y. 605; 
 Odell V. Montross, 68 N. Y. 499; Macauley v. Smith, 132 N. 
 Y. 524; Mooney v. Byrne, 163 N, Y. 86. 
 
 Q. A sues B for trespass, claiming that B entered upon his 
 premises and polluted a well upon his lands. B answers by 
 general denial. A, on the trial, proves possession of, but not 
 title to the premises. B offered to prove title in another person. 
 The court refused to receive the evidence. Should it have 
 been admitted? What effect on the judgment would it have 
 had, had it been received and title to the premises proved to 
 be in another person? 
 
 A. The evidence should not have been admitted. "An 
 illegal possessor may maintain trespass for an entry upon him 
 against all the world, except the rightful owner." Evertson v. 
 Sutton, 5 Wend. 281. "While it is true, that plaintiff may 
 maintain an action of trespass, by showing actual possession 
 and occupation alone without alleging and proving title, yet 
 imder such allegation and proof, he could not recover for dam- 
 ages to the freehold." Taylor v. Wright, 36 App. Div. 568. 
 It will be observed in the question put, the action was simply 
 one of trespass and not one for damages; therefore if the evi- 
 dence were admitted it would have no effect upon the judg- 
 ment. 
 
 (Note.) When an act of trespass is a continuing one, a court of equity 
 will grant relief so as to prevent a multiplicity of suits. See Wheelock v. 
 Noonan, 108 N. Y. 179; Sadlier v. City of New York, 185 N. Y. 408. 
 
 Q. A contracts with B for twenty chests of tea. B delivers 
 ten chests, and then refuses to perform as to the other ten 
 
EQUITY 255 
 
 chests, although it is within his power to do so. A brings action 
 to compel B to specifically perform his contract. Can the 
 action be maintained? 
 
 A. No. A has an adequate remedy at law in a suit for 
 damages for a breach of the contract. The extraordinary 
 equitable remedy of specific performance can only be invoked 
 when the plaintiff has no adequate remedy at law. Philips v. 
 Berger, 2 Barb. 608. 
 
 Q. A agrees with B to sell certain real estate for $10,000, 
 deed to be delivered and payment made at a certain time. B 
 signs an agreement which satisfies the Statute of Frauds. At 
 the appointed time, A presents a good and sufficient deed and 
 demands the money. B refuses to perform his contract. Will 
 equity decree specific performance? Substitute in the above 
 case $10,000 of stock instead of the real property. What 
 would your answer be? 
 
 A. As to the real property, specific performance will be 
 decreed on the principle of mutuality of remedies. An agree- 
 ment to convey real property will always be specifically en- 
 forced, as there is no adequate remedy at law in a suit for 
 damages, it being impossible to measure the damages with 
 certainty, as each piece of real estate may have a peculiar value 
 to the prospective pixrchaser on account of its location, etc. 
 As the vendee can thus enforce specific performance, equity, 
 applying the doctrine of mutuafity of remedies, gives the 
 vendor the same remedy, and allows him specific performance 
 when the vendee refuses to perform. Rindge v. Baker, 57 
 N. Y. 209. As to the stock, there is an adequate remedy at law, 
 as it can be purchased in open market and the damages readily 
 estimated; therefore specific performance should not be de- 
 creed, imless the stock could not easily be purchased in the 
 market. Johnson v. Brooks, 93 N. Y. 337. 
 
 (Note.) A court of equity will enforce a parol contract which has already 
 been executed, although void by the Statute of Frauds. Smith v. Smith, 
 125 N. Y. 224. 
 
256 EQUITY 
 
 Q. A, an art collector, desiring to complete his art gallery- 
 entered into an agreement with B to purchase from the latter 
 a certain exquisite painting for $5,000, its fair market value. 
 B refuses to deliver the painting and A comes to you for advice 
 and desires to know whether he can compel B to give him the 
 painting. What would you advise and why? 
 
 A. A can obtain specific performance. "The rule of specific 
 performance will be extended to personal contracts, where the 
 party wants the thing in specie and he cannot otherwise be 
 compensated. That is to say, the extension of the rule to such 
 cases is justified, where there would not be a complete and 
 satisfactory remedy by compensation in damages, where the 
 benefits of the contract would not inure fxilly to the party, in 
 whose favor it was made, unless it was specifically performed." 
 Bomeisler v. Forster, 154 N. Y. 239. See also Butler v. Wright, 
 186 N. Y. 259. 
 
 Q. A buys a certain piece of land from B. Afterwards he 
 brings an action for the reformation of the deed, claiming 
 that when he bought the property he supposed that there 
 were certain copper mines on the land, and would not have 
 bought it if he had not supposed this. Will a court of equity 
 grant him this relief? If so, why so? If not, why not? State 
 your reasons. 
 
 A. A cannot procure the relief desired in the absence of 
 fraud on the part of B, the mistake not being mutual. "In 
 the absence of fraud, a party cannot obtain reformation of a 
 contract, because it is not what he wanted it, but as the other 
 intended it to be, nor because the effect proved different from 
 what he supposed, when it was just what the other party sup- 
 posed and intended it to be. There must be either mutual mis- 
 take, or mistake on one side and fraud on the other. While 
 equity will give effect to the mutual understanding and inten- 
 tion of parties and perform written agreements to conform 
 thereto, it cannot make new contracts for parties against their 
 will." Curtis v. Giles, 7 Misc. 590. See also Wilson v. Deen, 
 
EQUITY 257 
 
 74 N. Y. 531; Paine v. Jones, 75 N. Y. 593; Avery v. Eq. Soc, 
 117 N. Y. 451. 
 
 Q. A sues to reform a contract, because at the time of making 
 it, he was under such a mistake of fact as to have changed 
 his whole intention had he known the truth. Upon the trial 
 both parties move for a verdict. Upon the facts alone stated 
 above, who would have judgment? Would any additional 
 fact change the decision? If so, what fact? 
 
 A. Upon the facts stated judgment should be for the de- 
 fendant, but if either mutual mistake, or mistake on the part 
 of the plaintiff and fraud on the part of the defendant be shown, 
 then judgment must be for the plaintiff. "A mistake which 
 will warrant a court of equity to reform a written contract 
 must be a mistake by both parties, or by one by which his 
 intentions have failed of expression, and with it fraud in the 
 other in taking advantage of the mistake, and obtaining a 
 contract with the knowledge that the one dealing with him 
 is in error in regard to its terms." Bryce v. Ins. Co., 55 N. Y. 
 240. 
 
 Q. A, who is the financial agent of a corporation, has a 
 voluntary accounting with it. A signed an instrument ac- 
 knowledging that he is indebted to it for a certain sum. After- 
 wards A brings an action in equity for the reformation of the 
 instrument, and alleges that at the time of the settlement 
 he added the colmnn, but did not examine the items, and that 
 one of the items is wrong. He acknowledges that the cor- 
 poration at the time of the settlement believed the instnunent 
 to be true. The corporation puts in a demurrer. Judgment 
 for whom and why? 
 
 A. Judgment for the defendant, as the mistake here was 
 not mutual, and there was no fraud on the part of the defend- 
 ant. A party who seeks the reformation of an instrument 
 on the ground of mistake of fact, must establish by the clearest 
 evidence that the mistake was mutual, that a different agree- 
 17 
 
258 EQUITY 
 
 ment was intended by the parties, and that fraud has been exer- 
 cised by the other. Pitcher v. Hennessy, 48 N. Y. 415; Ford v. 
 Joyce, 78 N. Y. 618; AUison Bros. Co. v. Allison, 144 N. Y. 22. 
 
 Q. A buys a piece of land of B, and by mutual mistake part 
 of the description in the deed was left out. Subsequently B 
 sues A in ejectment, and A wishes to defend. A comes to you 
 for advice. What are his rights? How would you proceed 
 to enforce them? 
 
 A. The mistake being mutual, A can go into equity and 
 obtain a reformation of the deed to accord with the intentions 
 of the parties. He can then set this up as a defense to the 
 ejectment suit. Paine v. Upton, 87 N. Y. 327. 
 
 Q. A agrees to buy a house from B for $7,000. The deed 
 is to be delivered the next day. A gives $1,000 to bind the 
 bargain. B takes the money and on the next day tenders the 
 deed to A, who refuses to accept it and to complete the piu*- 
 chase as agreed, at the same time demanding a return of his 
 money. The agreement was verbal. B comes to you for 
 advice. What are his rights? 
 
 A. B has the right to retain the $1,000, A having broken 
 the contract. B, however, cannot secure specific performance, 
 as the contract not having been reduced to writing is void. 
 (Section 259 of the Real Prop. Law, Consolidated Laws, chap. 
 50.) Part payment is not sufficient to take the contract out 
 of the statute and secure specific performance. "It is a general 
 rule that the mere payment of purchase money is not sufficient 
 to authorize a judgment requiring specific performance of a 
 verbal agreement for the sale of lands, except in a case where 
 an action at law to recover the amount paid would not, under 
 the circumstances, give the purchaser an adequate remedy. 
 But where the purchase money has been paid and the posses- 
 sion under the contract has also been taken, the contract will 
 be specifically enforced." Dunckel v. Dunckel, 141 N. Y. 427. 
 See also Pawling v. Pawling, 86 Hun, 502; Gibbs v. Horton Co., 
 61 App. Div. 621. 
 
EQUITY 259 
 
 Q. Your client placed in the hands of his agent $5,000 in 
 cash, in trust to be invested for him in bond and mortgage. 
 Instead of doing so, the agent used the entire fund except 
 $1,000 in paying his personal debts. Thereafter he made an 
 assignment for the benefit of his creditors. His estate to the 
 amount of $10,000 came into the hands of his assignee. Is 
 your client entitled to a preference to the amount of his debt 
 in the distribution of his assets? 
 
 A. No. The preference wiU only be allowed for the amount 
 of the fund coming into the hands of the assignee, that is, 
 $1,000. "The trust fund, with the single exception mentioned, 
 was misappropriated by W to the payment of his private debts 
 prior to the assignment. It cannot be traced into the prop- 
 erty in the hands of the assignee, for the plain reason that it is 
 shown to have gone to the creditors of W in satisfaction of their 
 debts. The court below seems to have proceeded upon a sup- 
 posed equity springing from the circumstances, that by the 
 application of the fund to the payment of W's creditors the 
 assigned estate was relieved pro tanto from debts which other- 
 wise would have been charged upon it, and that thereby the 
 remaining creditors, if entitled to distribution without regard 
 to the petitioner's claim, wUl be benefited. We find this quite 
 too vague an equity for judicial cognizance. The preference 
 should be allowed, only to the extent of the trust fund coming 
 into the hands of the assignee." Matter of Cavin v. Gleason, 
 105 N. Y. 256. 
 
 Q. A sold to B a farm for $5,000. B paid him $2,000 cash 
 and agreed to pay the balance in two weeks. B, in the mean- 
 while, gave a mortgage thereon to C who knew of the transac- 
 tions between A and B. Whose lien is superior, A's or C's? 
 
 A. A's lien is superior as equity will impress upon the land a 
 vendor's lien in favor of A. As C's mortgage was taken with 
 the knowledge of A's lien, it will be considered in equity to 
 be subordinate to A's lien. Hubbell v. Hendrickson, 175 N. 
 Y. 175. 
 
260 EQUITY 
 
 (Note.) "That where a vendor delivers possession of an estate in land 
 to a vendee without receiving the purchase price, equity gives the ven- 
 dor a lien upon the land therefor, although there was no special agree- 
 ment for that purpose, has been too long and too firmly established to re- 
 quire discussion. The death of the vendee does not alter or defeat the Uen, 
 nor does the taking of a promissory note affect it. If a part be paid, the lien 
 is good for the residue, and the vendee is a trustee for that which remains 
 unpaid." Garson v. Green, 1 Johns. Gh. 308; Chase v. Peck, 21 N. Y. 581; 
 Benedict v. Benedict, 85 N. Y. 625; Maroney v. Boyle, 141 N. Y. 462. 
 
CHAPTER XI 
 
 Insurance 
 
 Q. A delivers some cloth to B to have same made into suits. 
 B insures the same in the X Insurance Company. During 
 the progress of the work, the cloth is destroyed by fire. B puts 
 in his claim for the amount of the insurance. The insm-ance 
 company refuses to pay, claiming that B had no insurable 
 interest in the goods. B sues the company. Can he recover? 
 Answer fully. 
 
 A. B can recover, for he has an insm-able interest. Agents, 
 commission merchants, bailees or others having custody of, 
 and being responsible for property, may insure in their own 
 names, and they may, in their own names, recover of the in- 
 surer, not only a sum equal to their own interest in the prop- 
 erty by reason of any lien for advances or charges, but the 
 full amount named in the policy up to the value of the prop- 
 erty. The right is put upon the fact, that having possession 
 of the property, exclusive as to all but the owner to whom 
 they are responsible, they have the right to protect themselves 
 from loss, so that the property or its value may be rendered 
 to the owner when he calls for his own. Waring v, Ins. Co., 
 45 N. Y. 606. 
 
 Q. A obtains a judgment against B. B's only property is a 
 building which A's judgment is a Uen against. A takes out a 
 fire insurance policy in the X Company for his own benefit 
 on the building of B. The building is destroyed by fire, and 
 A puts in a claim for the insurance which the company refuses 
 to pay. He brings suit. Can he recover? 
 
 A. Yes. "A legal or equitable title is not necessary to give 
 an insurable interest in the property; if one has a right which 
 
 261 
 
262 INSURANCE 
 
 may be enforced against the property, and which is so con- 
 nected with it that injury thereto will necessarily result in a 
 loss to him, he has an insurable interest. When insurance is 
 upon property, not only must the insured have an interest 
 in the subject-matter of the contract at its inception, but also 
 at the time of the loss, for the contract being one of indemnity, 
 recovery by the insured is limited to the loss actually sustained 
 by him. As soon as his interest in the property ceases, the 
 contract is at an end from the impossibility of any loss happen- 
 ing to him afterwards." Rohrbach v. Ins. Cq., 62 N. Y. 47. 
 See also Cross v. Ins. Co., 132 N. Y. 133. 
 
 Q. A entered into a written agreement with B whereby the 
 latter agreed to sell and convey to A one month after the date 
 of the agreement a house for the sum of $10,000 which A agreed 
 to pay upon the delivery of the deed. A at once took out a 
 fire insurance policy in the X Company. Before any part of 
 the purchase money was paid and before the delivery of the 
 deed, the house burned. The insurance company refused to 
 pay the loss to A claiming that he had no insurable interest. 
 A brings suit upon the policy. Can he recover? 
 
 A. Yes. A had an insurable interest in the property, be- 
 cause the contract with B was enforceable. Berry v. Ins. Co., 
 132 N. Y. 49; Burke v. Ins. Co., 100 App. Div. 108. 
 
 Q. A, a stockholder in the X Corporation, insures a certain 
 building belonging to the corporation for his own benefit. The 
 building is destroyed by fire, but the insurance company re- 
 fuses to pay the loss to A, claiming that he had no insurable 
 interest in the property. Upon suit by A against the insmrance 
 company, what should the judgment be? 
 
 A. Judgment for A. It is not necessary to constitute an 
 insurable interest, that the interest is such that the event in- 
 sured against would necessarily subject the insured to loss. 
 It is sufficient that it might do so, and that pecuniary injury 
 would be the natural consequences. A stockholder in a cor- 
 poration has such an interest in the corporate property, and so 
 
INSURANCE 263 
 
 he may protect the same by an insurance of specific tangible 
 property of the corporation. Riggs v. Ins. Co., 125 N. Y, 7. 
 
 Q. A was the owner of a certain lot of land upon which B 
 was constructing a building under a contract binding him, B, to 
 furnish the necessary materials and complete the building with- 
 in a certain time. A was to pay for the construction of the 
 building after its completion. Before the building was com- 
 pleted A took out a poUcy of fire insurance in the X Insurance 
 Company for its full value. A had paid nothing for the mate- 
 rials or for the work done, when the building was totally de- 
 stroyed by fire. A brings action against the insurance company 
 on the policy to recover the value of the building destroyed. 
 Judgment for whom and why? 
 
 A. Judgment for A. The UabiUty of an insurer to pay for 
 the loss of a building destroyed by fire is not affected in the 
 absence of any exemption in the policy by the fact that it cost 
 the owner nothing or that he might compel another person to 
 replace it without expense to him. Foley v. Ins. Co., 152 N. Y. 
 131; Michael v. Ins. Co., 171 N. Y. 39. 
 
 Q. A owed B $10,000. B, acting on his own behalf, took 
 out a policy on the hfe of A and paid the premiums. A died 
 having paid to B the $10,000, and the policy was outstanding. 
 To whom does the policy go? 
 
 A. The policy belongs to B, the creditor. Where a creditor 
 procures an insurance upon the life of his debtor, his insurable 
 interest continues although the latter has paid the debt before 
 the debtor's death. The contract of life insurance is not one 
 for indemnity merely, and if the insured had an interest in the 
 life when he took the policy, he may recover although the in- 
 terest has ceased. Rawls v. Ins. Co., 27 N. Y. 282; Goodwin 
 V. Ins. Co., 73 N. Y. 497; Ferguson v. Ins. Co., 32 Hun, 306. 
 
 (Note.) It is well settled that a creditor has an insurable interest in the 
 life of his debtor, so employers and employees have insurable interests in 
 the lives of each other, so also partners, and near relatives, such as parent 
 and child, sister and brother. The only reason in life insurance for requiring 
 
264 INSUEANCB 
 
 an insurable interest is to eliminate from the contract the character of a 
 wager. Hoyt v. Ins. Co., 3 Bosworth (N. Y.), 440; Grattan v. Ins. Co., 15 
 Hun, 75. In Wright v. M. B. L. Assn., 118 N. Y. 237, it was held that the 
 plaintiff could recover the whole amount provided by the policy although 
 the debt owing to the payee by the insured, to secure which the insurance 
 was taken out by the plaintiff, was less than the sum insured. 
 
 Q. A policy was taken out by B on the life of A, her husband, 
 payable upon his death "to his wife." Subsequent to the issu- 
 ing of the policy, A divorced his then wife for adultery. A 
 shortly thereafter dies and B, his former wife, claims the pro- 
 ceeds of the policy. The company refuses to pay the policy to 
 her on the ground that she is no longer his wife, B brings suit. 
 Can she recover? 
 
 A. Yes. As B had an insurable interest at the time of the 
 issuance of the policy, her rights thereunder could not be de- 
 feated by a severance of the relationship of husband and wife. 
 Steinback v. Diepenbrock, 158 N. Y. 20; Conn. Mut. Ins. Co. 
 V. Schaefer, 94 U. S. 457. 
 
 Q. A insures his life for the benefit of B, his old friend. A 
 subsequently withB's consent assigns the policy to C, a stranger, 
 for $1,000. A dies, and C claims the amount of the policy from 
 the company. The company Refuses to pay, and C brings suit. 
 The company defends on the ground that B and C had no in- 
 surable interest in the life of A. Judgment for whom and why? 
 State your reasons. 
 
 A. Judgment for C. A valid poHcy of insurance effected by a 
 person upon his own life is assignable like any ordinary chose 
 in action. The assignee for value of such a policy is entitled 
 upon the death of the party whose life is insured, to recover the 
 full sum insured without reference to the amount of the insur- 
 ance paid by him for the assignment. As life insurance is not 
 regarded as a contract of indemnity merely, any person may 
 insure his own life for the benefit of a stranger. St. John v. 
 Ins. Co., 13 N. Y. 31; Valton v. Ass. Co., 20 N. Y. 32. 
 
 (Note.) "A life insurance policy is not a contract of indemnity; it is a 
 contract to pay a sum of money upon the death of the assured in considera- 
 
INSURANCE 265 
 
 tion of certain payments being duly made at fixed periods during his life. 
 If the insurance is made upon the application of one who has no insurable 
 interest whatever in the life insured, it is a wager policy, that is to say, a 
 speculative contract, which the law condemns. But a person may insure 
 his own life and provide in the contract of insurance that the money shall be 
 payable to anyone whom he may appoint or assign the policy to. What will 
 distinguish the one contract from the other is the fact as to the party actually 
 contracting with the insurer and the distinction is substantial and controlling 
 accordingly." Gray, J., in Reed v. Provident Soc, 190 N. Y. 118. 
 
 Q. Plaintiff at 10 o'clock a. m. went to the office of the de- 
 fendant Fire Insurance Company, and agreed orally with the 
 proper officer for an insurance. At noon, and before the policy 
 was written, the property was destroyed by fire. Plaintiff 
 immediately tendered the premium. The payment of loss was 
 refused, and plaintiff brings action. Can he recover? 
 
 A. The plaintiff can recover the amount of the loss. A 
 recovery can be had upon a parol contract to insure, although 
 no policy was ever issued by the insurer, if it appears that the 
 insured applied for insurance, that the company accepted 
 the risk, and that the premium was tendered. Clarkson v. 
 Assn. Co., 92 Hun, 527. "An oral contract to insure is valid, 
 and the law reads into the contract the standard fire insurance 
 policy of the state of New York, whether it was referred to in 
 terms or not." Hicks v. Assn. Co., 162 N. Y, 284. So also 
 Northam v. Ins. Co., 165 N. Y. 666; 177 N. Y. 74. 
 
 Q. A has a policy in the X Life Insurance Company, and 
 fails by neglect to pay the premium on January 1, 1914, the 
 due day; the following May he dies, and his representatives 
 sue the company for the amount of the policy. Can they re- 
 cover? 
 
 A. No. "Punctuality in the payment of premiums in the 
 case of a life insurance policy is of the very essence of the con- 
 tract, and if payment is not made when due,, the company 
 has the right to forfeit it if such is the contract. The rule that 
 strict construction is to be given to a provision of forfeiture 
 in a policy of insurance, and that it may not be extended for 
 
266 INSURANCE 
 
 the purpose of working a forfeiture beyond the strict and 
 literal meaning of the words used, applies only where the mean- 
 ing is doubtful, and the words capable of two constructions. 
 Where the language is plain and imequivocal and the meaning 
 not in doubt, in the absence of fraud or mistake, the contract 
 must be enforced as it reads." Holly v. Ins. Co., 105 N. Y. 437. 
 
 (Note.) Where the insured requested the insurance company to inform 
 him whether or not a former premium has been paid, and the company in- 
 formed him that it was, it was held that a recovery upon the policy would be 
 allowed although the premium had not been paid. Meeder v. Assn. Soc, 
 177 N. Y. 432. 
 
 Q. A takes out a policy of fire insurance in the X Insurance 
 Company. It provides that the policy shall be void if any 
 mechanics shall be employed in repairing the building for longer 
 than twenty days without notice to the company. A employed 
 mechanics to repair the house without giving notice to the 
 company, it taking thirty days to complete the work. After- 
 wards when the mechanics have left, and from a cause in no 
 way connected with their work, A's house takes fire and is 
 destroyed. The company refuses to pay. A brings suit. Can 
 he recover? 
 
 A. No, for a condition of the policy was violated by A, and 
 this rendered it void and unenforceable. Where a policy of 
 fire insurance is issued containing conditions, a violation of 
 which by the terms of the policy avoids it, the insured wiU be 
 held strictly to his contract, however immaterial to the risk 
 the matter stipulated against may be. Mack v. Ins. Co., 106 
 N. Y. 560; Newport Imp. Co. v. Ins. Co., 163 N. Y. 237. 
 
 Q. The X Insurance Company, through one of its agents, 
 issued a policy of fire insurance for $5,000 upon B's shoe fac- 
 tory. One of the conditions of the policy provided that "if a 
 building is insured that is on leased land, the same must be 
 specifically represented to the company, and expressed in this 
 policy in writing; otherwise this policy shall be void." B's 
 factory was on leased land, and was not expressed in the policy, 
 although the company's agent knew about it when he issued 
 
INSURANCE ^67 
 
 the policy. The factory was destroyed by fire and the company 
 refuses to pay the loss, claiming that the policy was void on the 
 grounds stated. B sues the company for the loss sustained. 
 Judgment for whom and why? 
 
 A. Judgment for B, The pohcy was not avoided and the 
 insured can recover as the knowledge of the agent is chargeable 
 to the company. In Van Scoick v. Ins. Co., 68 N. Y. 434, an ac- 
 tion upon a similar policy, it was held : ' ' that as the knowledge of 
 the agent was the knowledge of the principal when it accepted 
 the risk, it had information that the building stood upon leased 
 ground; that it was to be presumed that defendant had over- 
 looked the condition, and so had forgotten to express the fact 
 in the policy, or that it waived the condition or held itself 
 estopped from setting it up, as to presume otherwise, would 
 be to impute to defendant a fraudulent intent in issuing a 
 policy known by it to be invalid." And this rule has been 
 followed in Whited v. Ins. Co., 76 N. Y. 519; Woodruff v. 
 Ins. Co., 83 N, Y. 140; Short v. Ins. Co., 90 N. Y. 16; Robbins 
 V. Ins. Co., 149 N. Y. 434. 
 
 Q. A takes out a policy of fire insurance in the X Company, 
 the policy prohibiting other insurance unless the consent of 
 the company was indorsed thereon. It also provided that none 
 of the agents should have power to waive any of its provisions 
 except by a written indorsement on the pohcy. A had no 
 other insurance at the time of the delivery of the pohcy. When 
 the agent delivered the policy A informed him that he intended 
 to procure other insurance, but did not have any indorsement 
 made on the policy. Thereafter A procures two other pohcies 
 in different companies and a fire occurs, and the company 
 refuses to pay the loss. A brings suit. Can he recover? 
 
 A. No. The dehvery of the policy by the agent did not 
 constitute a waiver of the provision as to other insurance or 
 estop the company from setting it up, as the policy was valid 
 in its inception, for neither of the other policies had been issued 
 but were subsequently obtained. The policy only became 
 invalid by A's act in procuring additional insurance without 
 
268 INSURANCE 
 
 obtaining an indorsement on the policy of the company's 
 consent. As the company issued a policy which was valid 
 when delivered, the notice to the agent of intentions to take 
 out other insurance did not estop the company nor constitute 
 a waiver. The distinction must be drawn between ' ' the knowl- 
 edge by the agent of an existing fact which renders a policy 
 void when deUvered, and the omission of the insured to give 
 notice of and secure the required consent to a subsequent act, 
 which by its conditions invalidates the policy although pre- 
 viously consented to." Gray v. Ins. Co., 155 N. Y. 184; Baum- 
 gartel v. Ins. Co., 136 N. Y. 547; McNierney v. Ins. Co., 48 
 Hun, 239. 
 
 (Note.) "The use of the Standard poUcy was compelled by legislative 
 enactment to remedy existing evils and, among others, to protect insurance 
 companies from the perils of alleged parol waivers by their local agents. 
 Every person who now enters into a contract of insurance is required to agree 
 that no officer or agent or other representative of the company shall have 
 power to waive any provision or condition of the policy, except such as by 
 the terms thereof may be subject of agreement indorsed thereon, and as to 
 such provisions and conditions the waiver must be written upon or attached 
 to the policy and he specifically covenants that he will not claim any privilege 
 or permission unless it be in writing." Moore v. Ins. Co., 141 N. Y. 224; 
 Northern v. Ins. Co., 166 N. Y. 319. 
 
 Q. An insurance policy provides that if the property in- 
 sured now or hereafter has a chattel mortgage upon it, the 
 policy shall be void. A, the insurance agent of the company, 
 insures B's personal property, there being at the time a chattel 
 mortgage thereon, which is filed in the county clerk's office. 
 The property is subsequently destroyed by fire. B, not having 
 made any concealment, and having acted in good faith, brings 
 suit against the insurance company. The company claims 
 that the policy is void because of the mortgage. Judgment for 
 whom and why? 
 
 A. Judgment for the company, as there was a violation of a 
 condition of the policy. It matters not that the mortgage was 
 recorded, as the company cannot be charged with notice there- 
 by, in the face of an expressed condition in the policy. The 
 
INSUBANCE 269 
 
 question of good faith is not material, when the policy expressly 
 stipulates that it shall be avoided in the case of a violation of a 
 condition. This condition was a warranty and avoided the 
 policy. ' ' The distinction between a warranty and a representa- 
 tion is that the former is contained in and forms part of the 
 contract, and must be complied with whether material to 
 the risk or not, while the latter is outside of the contract, and 
 is immaterial whether it is true or false unless material to the 
 risk." Chase v. Ins. Co., 20 N. Y. 52. 
 
 Q. There is a fire insurance upon a mill, the policy providing 
 that it shall be null and void if the mill ceased to be operated 
 for more than ten consecutive days, or became vacant or un- 
 occupied, and so remained for ten days. The mill is closed 
 and inoperative for a week in order that repairs to the machin- 
 ery may be made. The next week it is inoperative, because the 
 miller is so sick that he cannot work. The mill takes fire on 
 the last day of the two weeks and is destroyed. The miller 
 brings suit against the company upon their refusal to pay the 
 loss. Can the action be maintained? 
 
 A. Yes, judgment for the miller. The case of Ladd v. Ins. 
 Co., 147 N. Y. 478, is exactly in point. The headnote to that 
 case reads: "A mere temporary cessation of the operation of the 
 machinery in a manufacturing establishment by reason of sick- 
 ness, break-down, low water or other unavoidable cause, with- 
 out any intention on the part of the insured to cease operating, 
 or to allow the premises to become vacant or unoccupied, is not 
 of itself to be deemed a violation of the provisions of a fire 
 insurance policy, avoiding it in case the establishment ceased 
 to be operated for more than ten consecutive days, or became 
 vacant or unoccupied and remained so for ten days." 
 
 Q. Upon an action on a fire insurance policy by A against 
 the X Company, it appeared that A was the owner of a country 
 dwelling house which was used by him during the summer, and 
 in the fall he left his furniture therein in charge of a caretaker 
 who lived and slept in another house on the farm and inspected 
 
270 INSURANCE 
 
 the same regularly and at least once a week. A visited the 
 house regularly and at least once in two weeks made a thorough 
 inspection of the house. No one slept in the house. The poUcy 
 among other things provided that the policy shall be void if the 
 insured dwelling house, whether intended for occupancy by 
 owner or tenant, be or become vacant or unoccupied and so 
 remained for ten days. The above facts appearing, who should 
 have judgment and why? 
 
 A. Judgment for the company, as the house was unoccu- 
 pied although not vacant. The case of Herman v. Ins. Co., 85 
 N. Y, 162, is exactly in point, and it was there held that: "for 
 a dwelling house to be a state of occupation, there must be in 
 it the presence of human beings as at their customary place of 
 abode, not absolutely and uninterruptedly continuous, but 
 that must be the place of usual return and habitual stoppage." 
 
 Q. A takes out a policy of fire insurance on his stock of cloth- 
 ing for one year. During the summer months he sold out the 
 entire stock and kept his place closed. In the fall A opened 
 his place with a new stock of clothing, and a few weeks there- 
 after a fire broke out destroying A's entire stock. The company 
 refuses to pay the loss claiming that they had not insured the 
 stock in question. Conceding the above facts as stated, who 
 should have judgment and why? 
 
 A. Judgment for A. The policy was a continuing one, and 
 although the liability thereon was suspended by the sale of the 
 stock, it was revived by the bringing of new goods in the same 
 place. " Had a fire occurred during the time, no recovery could 
 have been had against the underwriters, not because the poUcy 
 had become void, but because the insured has suffered no loss. 
 The owners of the goods would have had no claim for the reason 
 that at the time they had no interest in the poUcy, yet the 
 policy continued to be a valid subsisting contract in the hands 
 of the insured, and had they subsequently purchased the same 
 goods or other goods and brought them into the store, they 
 would have been covered by it." Hooper v. Ins. Co., 17 N. Y. 
 424; Hoffman v. Ins. Co., 32 N. Y. 405. 
 
INSUEANCB 271 
 
 Q. A took out a policy of fire insurance in the X Company 
 on his horses, cattle and sheep in the sum of $6,000, $4,000 
 thereof being on the horses and cattle and $2,000 on the sheep. 
 The policy provided that "this entire policy shall be void if 
 the subject of the insurance be personal property and be or 
 become incumbered by a chattel mortgage." After the issuance 
 of the policy A executed and delivered a chattel mortgage on 
 the horses and cattle in the sum of $3,000. Thereafter and 
 while the mortgage was alive a fire occurred destroying all of 
 the insured property. There was a total loss of $4,000 on the 
 horses and cattle and $2,000 loss on the sheep. Upon the re- 
 fusal of the company to pay the loss, A brings suit. Judgment 
 for whom and why? 
 
 A. A can recover for the sheep only, as they were not mort- 
 gaged, but no recovery can be had for the horses and cattle 
 which were the subject of a chattel mortgage. "Where the in- 
 surer's risk is distributed among several subjects of insurance 
 and limited in amount as to each, there are as many distinct 
 insurances as subjects, and an avoidance of the policy as to 
 one subject, will not avoid it as to others, unless such clearly 
 appears to have been the intention of the parties." A. H. G. S. 
 Co. V. Ins. Co., 1 Misc. 114; Merrill v. Ins. Co., 73 N. Y. 453; 
 Pratt V. Ins. Co., 130 N. Y. 206. "Where a policy of fire in- 
 surance covers different kinds of property, each separately 
 valued, the contract is severable even if but one single premium 
 is paid, and the amount insured is the sum total of the valu- 
 ation; but where the articles are not separately valued the 
 contract is entire and indivisible, and a cause of forfeiture in re- 
 spect to part of the property affects the entire contract." Fitz- 
 gerald V. Ins, Co., 61 App. Div. 350. 
 
 Q. A insures his bmlding against loss by fire in the sum of 
 $5,000. In the policy was a provision to the effect "that the 
 entire policy should be void, if the interest of the insured be 
 other than an unconditional and sole ownership." At the time 
 the policy was issued, there was a mortgage on the premises for 
 $5,500. The existence of this incumbrance was not disclosed 
 
272 INSURANCE 
 
 to the insurance company that issued the poHcy. Upon the 
 total destruction of the building by fire, the company refuses 
 to pay the loss. A brings suit on the policy. Can he recover? 
 
 A. Yes. The policy was not vitiated by the omission of all 
 reference to the mortgage. The insured held the legal title to 
 the property, and was the sole and unconditional owner thereof 
 within the meaning of those terms as therein used. Moulton 
 V. Ins. Co., 25 App. Div. 275. 
 
 (Note.) "The effect of a chattel mortgage is to convey the title of the 
 property to the mortgagee and thereafter the mortgagor's interest is that 
 of an equity of redemption and nothing more. Therefore, the interest of 
 the assured in the personal property was not that of a sole, entire and un- 
 conditional ownership, and so much of the contract as related to that class 
 of property was void by the very terms of the condition." Woodward v. Ins. 
 Co., 32 Hun, 365. 
 
 Q. A took out a policy of fire insurance in the X Company 
 on his dwelling house. In the policy was a provision "that 
 this entire policy shall be void if any change take place in the 
 title or possession of the subject of insurance." After the is- 
 suance of the policy A executed and delivered to B a deed of 
 the property which was absolute in form, but in fact was given 
 to secure a debt. A remained in possession and the deed was 
 recorded. Thereafter a fire occurred damaging the building. 
 The company refuses to pay on account of the deed to B. A 
 brings suit against the company. Who should have judgment 
 and why? 
 
 A. Judgment for A. "A deed absolute in form but in fact 
 given simply as security for a debt, does not convey the title, 
 but is, both at law and in equity, a mortgage only. Where 
 therefore a poUcy of fire insurance contained a condition to 
 the effect that a sale or transfer of the property insured or 
 any change in the title without the consent of the company 
 would avoid the pohcy, held that a deed of the property, exe- 
 cuted simply to secure a debt, was not within the condition 
 and did not affect the policy." Barry v. Ins. Co., 110 N. Y. 1. 
 
INSURANCE 273 
 
 Q. A takes out a policy of fire insurance in the X Insurance 
 Company. There was a clause in the policy which read that 
 if the insured property was incumbered in any way, this policy 
 shall be null and void. After the issuance of the policy, judg- 
 ment was rendered against A, which was the result of a deci- 
 sion in a contested suit. The building which was insured is 
 subsequently destroyed by fire, and A presents his claim to 
 the company which refuses to pay the same. A brings suit. 
 Can he recover? 
 
 A. Yes. "A condition in a policy of fire insurance, forfeiting 
 it in case the property insured becomes incumbered in any 
 way, without the consent of the company written on the policy, 
 refers to incumbrances created by the act of the insured; it 
 does not apply to incumbrances by judgment, or otherwise 
 created by operation of law." Baley v. Ins. Co., 80 N. Y. 21; 
 Steen v. Ins. Co., 89 N. Y. 327. 
 
 (Note.) In Egan v. Ins. Co., 5 Denio, 326, the policy declared that if the 
 insured should suffer a judgment which shall be a lien on the insured premises, 
 without communicating it to the company, the policy should be void. It 
 was held that the provision was an express warranty, and judgment having 
 been rendered against the insured, the policy was avoided. 
 
 Q. A takes out a policy of fire insurance upon his building 
 in the X Insurance Company. The policy contained a clause, 
 to the effect that if the property be incumbered by judgment 
 or legal process, the policy should be avoided. A mechanic's 
 lien, without procurement of A, was filed against the building. 
 Shortly after, the building is destroyed by fire. The company 
 refuses to pay the loss. What are the rights of the parties? 
 
 A. A can recover the amount of the loss. "A condition in 
 a fire insurance policy, that the insured shall not be liable for 
 a loss, if without the consent of the company, the property 
 shall in any way become incumbered, applies only to incum- 
 brances created by or with the consent of the insured, and 
 to the creation of which he might apply for consent. A me- 
 chanic's lien filed against the property, without his procurement, 
 does not avoid the policy, and is not an incumbrance con- 
 18 
 
274 INSURANCE 
 
 templated by the condition." Green v. Ins. Co., 82 N. Y. 
 517. 
 
 (Note.) "A sale of real property upon execution does not, before the ex- 
 piration of the period allowed for redemption, avoid a policy of fire insurance 
 upon real property, under a condition that the policy shall be void, if any 
 change take place in the interest, title or possession of the subject of the in- 
 surance, whether by legal process or judgment, or by voluntary act of the 
 insured or otherwise." Wood v. Ins. Co., 149 N. Y. 342. 
 
 Q. A takes out a policy of life insurance, and makes B, his 
 wife, the beneficiary. In the application is the following ques- 
 tion: "Are you married, and if so, to whom?" He answers 
 yes, to B, and warrants that his answers are true. The policy 
 contains a clause that if there are any false statements in the 
 application, the policy shall be void. At the time B is merely 
 living with A as his mistress, and is in fact the wife of another 
 man still living. A dies. The company refuses to pay the 
 amount of the policy. B brings suit. Can she recover? 
 
 A. No. This is a breach of warranty. The statements 
 in the application which were made warranties were imtrue, 
 and this avoided the policy, even though they were made in 
 good faith, and with a belief of their truth. The word "false" 
 in the policy was used in the sense of untrue, and did not limit 
 the effect of the warranty to a statement intentionally untrue. 
 Foot V. Ins. Co., 61 N. Y. 571. 
 
 (Note.) Answers to questions propounded by insurers in an application 
 lor msurance, unless they are clearly shown by the form of the contract, to 
 be intended by both parties to be warranties, to be strictly and literally 
 complied with, are to be considered as representations, as to which sub- 
 stantial truth in everything material to the risk, is all that is required of 
 the applicant. Where a policy of life insurance is issued upon an applica- 
 tion, in which a warranty is understandingly and clearly given by the insured, 
 he will be held strictly to his contract, however immaterial the facts may be. 
 To avoid a policy of life insurance upon the ground of misrepresentation, 
 it must, in the absence of fraud, be in respect to some circumstance or fact 
 material to the contract, and by which the insurer is induced to take the 
 risk. A warranty, however, must be literally true, whether the fact war- 
 ranted be material or not. Barteau v. Ins. Co., 67 N. Y. 595; Dwight v. 
 Ins. Co., 103 N. Y. 341. 
 
INSURANCE 275 
 
 Q. A tak;es out a policy of life insuranoR and warranfs h\n 
 
 Errata, page S74 and page S75 
 
 The answers to questions on pages 274 and 275 state the common-law rule. 
 The statute (sec. 58 of the Insurance Law) has worked a change in the law. 
 This section provides as follows: "Every policy of insurance issued or de- 
 liA-ered within the state on or after the first day of January, 1907 by any life 
 insurance corporation doing business within the state shall contain the entire 
 contract between the parties and nothing shall be incorporated therein by 
 reference to any constitution, by-laws, rules, application or other writings 
 unless the same are indorsed upon or attached to the policy when issued; and 
 all statements purporting to be made by the insured shall in the absence of 
 fraud be deemed representations and not warranties. Any waiver of the 
 provisions of this section shall be void." The statute has mitigated the rigor 
 of the common-law rule in this respect that all statements are now con- 
 sidered as representations which do not avoid the policy in the absence of 
 fraud, and all such statements or representations must be incorporated in the 
 policy so as to form part of the contract of insurance. The recent case of 
 Archer v. Equitable Life Ass. Soc, 169 App. Div. 43, is called attention to. 
 It was there held that: "In an action by a beneficiary to recover upon a life 
 insurance policy, evidence of false representations on the part of the insured 
 in procuring the issuance of the policy are inadmissible in defense, where 
 such representations were not indorsed upon or attached to the pohcy as 
 required by sec. 58 of the Insurance Law." In the opinion of the Court, it 
 is further said: "The appellant contends that the purpose of this section 
 was merely to abolish the distinction between warranties and representa- 
 tions, and to require that the entire contract shall be contained in the policy 
 and the papers attached thereto. But it is quite evident that the legislature 
 had in mind an additional purpose, which was to prevent, so far as could be, 
 controversies which had theretofore arisen between the insured and insurer 
 as to the accuracy of the record of statements made by the former at the time 
 the policy was applied for. . . . The legislative intent, as expressed in the 
 section, seems to me clear. It is to require insurance companies, when issuing 
 policies, to set out therein the entire contract of insurance, and every state- 
 ment or representation which induced the company to enter into the agree- 
 ment, and upon which it relied in so doing, if thereafter to be available as a 
 defense to the policy, is to be annexed to and made a part of it." The same 
 rule was also enunciated in the case of Mees v. Pittsburgh Life & Trust Co., 
 169 App. Div. 86. 
 
 company, if the insured should die by suicide. All of the con- 
 ditions in the policy were fulfilled by the insured in payment 
 of premiums, etc. The insured intentionally took his own 
 
INSURANCE 276 
 
 Q. A takes out a policy of life insurance and warrants his 
 age to be fifty, when in fact he was fifty-five. A dies. What 
 are the rights of his representatives against the company? 
 
 A. They have no rights whatever against the company. 
 The answers contained in the application were warranties 
 and were material to the risk, and therefore the statements 
 being false, the policy was avoided. Schmitt v. Ins. Co., 84 
 Hun, 128; Kabok v. Ins. Co., 4 N. Y. Suppl. 718. 
 
 Q. A took out a policy of life insurance and warranted his 
 age to be thirty years when in fact he was thirty-five years 
 old. The agent who took out the policy for the company 
 knew that A was thirty-five years of age and the falsity of 
 the warranty. The insured having died, the company con- 
 tests the pohcy. Upon the above facts, who should have judg- 
 ment and why? 
 
 A. Judgment for the company. There was a breach of 
 warranty by the insured and the fact that the agent had knowl- 
 edge or information of the falsity of the statements does not 
 affect the right of the company to assert the defense. "The 
 cases in which knowledge of the agent through whom insurance 
 is taken, may operate to defeat the right of the company to 
 avail itself of the fact so known, at the time it is taken, are 
 those in which there is no application signed by the insured 
 stating to the contrary of such existing fact, but rests upon a 
 condition expressed in the poUcy merely. Such is not under- 
 stood to be the rule when the alleged breach of warranty is 
 founded upon a misstatement by the assured in the applica- 
 tion made and subscribed by him." Kenyon v. Assn., 122 
 N. Y. 257; Hamilton v. Assn., 27 App. Div. 480. 
 
 Q. A took out a policy of insurance upon his life, payable 
 to himself, his executors, administrators or assigns. The 
 policy was silent upon the question of liability of the insurance 
 company, if the insured should die by suicide. All of the con- 
 ditions in the policy were fulfilled by the insured in payment 
 of premiums, etc. The insured intentionally took his own 
 
276 INSURANCE 
 
 life while he was sane. State whether or not the insurance 
 company is liable. Give reasons. 
 
 A. The company is liable. "Where life insurance is effected 
 for the benefit of one's representatives, suicide, while sane, is 
 not a defense, in the absence of a condition or exception to 
 that effect in the policy. The representatives are not bound 
 by the acts of the deceased after the issuance of the policy, 
 unless in violation of some condition thereof." Fitch v. Ins. 
 Co., 59 N. Y. 557. 
 
 Q. A takes out a policy of life insurance payable to his wife 
 and children. The policy provides that it shall be void if the 
 insured die by his own hand. A commits suicide while insane. 
 Can his beneficiaries recover on the policy? 
 
 A. Yes. "Where a policy of life insurance contains the 
 usual conditions declaring it void in case the insured should 
 die by his own hand, the only exception to the condition is 
 where self-destruction is clearly shown to be accidental or 
 involuntary; to take a case out of the proviso on the groimd 
 of insanity the insured must have been so mentally disordered 
 as not to imderstand that the act he committed would cause 
 his death, or he must have committed it under the influence 
 of some insane impulse which he could not resist." Van Zandt 
 V. Ins. Co., 55 N. Y. 169; Newton v. Ins. Co., 76 N. Y. 426. 
 
 Q. A takes out a policy upon his life for the benefit of his 
 wife and children. The pohcy provides that it shall be void 
 if the insured die by his own act, whether voluntary or other- 
 wise. A by mistake, took some poison which caused his death. 
 Upon the refusal of the company to pay the policy, on account 
 of the above condition, the representatives of A bring suit. 
 Can they recover? 
 
 A. Yes. "A purely accidental act committed by a sane 
 person, with no idea of injuring himself, cannot be regarded 
 as an act of self-destruction, within the meaning of such a 
 contract. Suicide is the act stipulated against. The words 
 
INSURANCE 277 
 
 voluntary or otherwise preclude the parties claiming under 
 the poUcy if the act was one of suicide. But still it must be a 
 suicide, and who would contend that the taking of poison by 
 mistake, or any other act by which a sane person might inno- 
 cently commit, though it should result in death, was what is 
 ordinarily understood as self-destruction or suicide? It is 
 unreasonable to suppose that one effecting an insm-ance upon 
 his hfe, in stipulating against death by his own hand or act, 
 could intend to embrace such a casualty, or that the insurance 
 company could fairly expect him so to understand." Rapallo, 
 J., in Penfold v. Ins. Co., 85 N. Y. 317. 
 
 Q. A took out a poUcy of accident insurance. The policy 
 provided that if the insured met death, it must be by external 
 and violent means. A met death by inhalation of illuminating 
 gas. The company refuses to pay the policy, claiming that the 
 death did not come within the above provision of the policy. 
 The representatives of A bring suit against the company to 
 recover the amount of the pohcy. Judgment for whom and 
 why? 
 
 A. Judgment for A's representatives. "As to the point 
 raised by the appellant that the death was not caused by ex- 
 ternal and violent means, within the meaning of the poUcy, we 
 think it is a sufficient answer that the gas in the atmosphere, 
 as an external cause, was a violent agency, in the sense that it 
 worked upon the intestate so as to cause his death. That a death 
 is the result of accident, or is unnatural, imports an external 
 or violent agency as the cause." Gray, J., in Paul v. Ins. Co., 
 112 N. Y. 472. 
 
 Q. A took out a policy of life insiu-ance for the benefit of his 
 wife. The policy contained a provision that if the insvired 
 should die by anything accidentally taken, administered or 
 inhaled, the company should not be liable. A, while stopping 
 at the X Hotel, through a mistake of the porter who left the 
 gas jet open, lost las life by inhaling the escaping gas. A's 
 widow demands the amount of the pohcy, but the insurance 
 
278 INSURANCE 
 
 company refuses to pay same, on account of the above pro\d- 
 sion. She brings suit. Judgment for whom and why? 
 
 A. Judgment for the widow. "The respondent, however, 
 urges that upon the admitted facts, the General Term held 
 that the provision in reference to 'anything accidentally taken, 
 administered or inhaled,' excepted the company from any 
 liability whatever under its poUcy. We think otherwise. That 
 provision in the policy clearly implies voluntary action on the 
 part of the insured or some other person. The insured must 
 take or inhale, or another must administer. The manifest 
 purpose of the provision is to exempt the insurer from liability 
 when the insured has voluntarily and consciously, but acciden- 
 tally taken or inhaled, or something has been vpluntarily admin- 
 istered which was injurious or destructive to hfe. We think 
 that the particular accidents intended to be exempted by that 
 provision are the accidental taking or inhaling into the system 
 of some injurious or destructive agency under the mistaken be- 
 lief that it was beneficial, or at least harmless." Martin, J., in 
 Menneilley v. Assn. Co., 148 N. Y. 596. 
 
 Q. A, the wife of B, secures a policy of insurance on his life, 
 payable in ten years to herself in case she lives, and in case she 
 dies before her husband, to be paid to her husband. In case she 
 outlives her husband, to be paid to her children, share and 
 share ahke. One year after the issuance of the policy, A and B 
 make an assignment of the policy to D. The insurance com- 
 pany at the end of ten years pays to the assignee of A and B. 
 At that time A is living with her three children. The children, 
 through a guardian, bring suit against the insurance company 
 to enforce their rights imder the poUcy. What are their rights, 
 and was the assignment valid? Who should have judgment? 
 
 A. Judgment for the insurance company. The poUcy was 
 payable to A, if she were alive, and she having assigned her 
 rights to D, he acquired and possessed the same rights as she 
 would have under the poHcy. The children therefore have no 
 rights; whatever rights they had was cut off by the assignment. 
 
INSURANCE 279 
 
 The assignment was valid. "An assignment of a life insurance 
 policy, issued upon the life of a husband, in which his wife is 
 the beneficiary, is valid, where the assignment is made by the 
 wife with the written consent of the husband." Fuller v. Kent, 
 13 App. Div. 529; Miller v. Campbell, 140 N. Y. 457. 
 
 Q. There is an insurance upon the life of A, payable to his 
 wife, or if she be dead, to the children. They have two children, 
 X and Y. X dies leaving a son, then A's wife dies, then A dies. 
 Who is entitled to recover the amoimt of the policy? 
 
 A. Y gets all. X simply had a contingent interest in the 
 policy, which terminated upon the happening of the con- 
 tingency, i. e., her death prior to that of her mother, and so no 
 interest was transmitted to her representatives. Upon the 
 death of the mother, all interest in the policy vested at once in 
 the child then living. Walsh v. Ins. Co., 133 N. Y. 408. 
 
 Q. A took out a poUcy of insurance upon his life for the bene- 
 fit of his wife. After the pohcy had been running for several 
 years, A was unable to pay the premimns thereon and requested 
 the insurance company to take a surrender of the policy which 
 was done without any notice to the wife. At A's death, the 
 wife demands the pajrment of the poUcy, when she is informed 
 that the same has been surrendered. She comes to you for 
 advice. What would you advise her? 
 
 A. The wife can recover the amount of the policy as she had 
 a vested interest in the policy at the moment of its delivery to 
 her husband. As the policy was taken out for the benefit of the 
 wife, it could not be surrendered without her consent. In order 
 to have a valid surrender, it must be with the consent of the 
 beneficiary. Whitehead v. Ins. Co., 102 N. Y. 143; Shipman 
 V. Home Cu-cle, 174 N. Y. 398; Bradshaw v. Ins. Co., 205 N. Y. 
 470. 
 
 Q. A takes out a fire insurance policy. The policy reads 
 that if A has any other insurance on his premises, the poHcy is 
 void. A has a policy existing in the same company. His barn 
 
280 INSURANCJJ 
 
 burns, and he sues the company who defend on the ground that 
 the poUcy was avoided by the violation of the above provision. 
 Can he recover? 
 
 A. Yes, for the company must be deemed to have waived 
 the condition. "Where the facts are all known, before any 
 contract is made, a condition against a state of things known 
 or presumed to be known to exist by all parties, cannot be 
 deemed to be within their intention and purpose." Forward 
 V. Ins. Co., 142 N. Y. 382. "The company is estopped from 
 setting up the forfeiture, since it is presumed to know of the 
 existence of the other policy in its own company." Kelly v. 
 Ins. Co., 15 App. Div. 220. 
 
 Q. A policy of fire insurance contained a clause that the in- 
 sxired should serve a verified proof of loss upon the company 
 within sixty days after the fire, as a conditon precedent to his 
 maintaioing an action thereon. The insured served an un- 
 verified proof of loss within sixty days, which the company 
 retained, making thereto no reply or observation. Upon the 
 refusal of the company to pay, A brings suit. Judgment for 
 whom and why? 
 
 A. Judgment for A. "Under the facts disclosed by the 
 evidence, the defendant was called upon to object to the proofs 
 of loss that were furnished within a reasonable time, to point 
 out the defects, to the end that the plaintiff might remedy them 
 within the period of time in which he was permitted to lodge 
 with the defendants formal proofs; and a question of fact was 
 presented to the jury to consider whether under all the circum- 
 stances, the defendant had not waived the right to insist upon 
 more formal proofs." Messmer v. Ins. Co., 24 App. Div. 214. 
 In the case put, the act of the company was clearly a waiver of 
 forfeiture. By accepting the formal proofs, they are estopped 
 from demanding service of the verified proof of loss. Bumstead 
 V. Ins. Co., 12 N. Y. 81. 
 
 Q. Sparks from the locomotive of a railroad company burn 
 the barn of B ; B is insured and the insurance company pays him 
 
INSUEANCE 281 
 
 the full amount of the insurance, $1,000. B sues the railroad 
 company in tort for damages. The railroad company demurs 
 on the ground that the insurance company has brought an 
 action for the same cause. Judgment for whom and why? 
 
 A. Judgment for the railroad company. The owner can only 
 recover his loss from one party — Shaving been paid by the in- 
 surance company, he cannot recover from the railroad. The 
 insurance company, however, can recover from the railroad 
 company upon the principle of subrogation. "If a loss under 
 a policy of fire insurance is occasioned by the wrongful act of a 
 third person, the insurer upon payment is subrogated to the 
 rights and remedies of the insured and may maintain an action 
 agamst the wrongdoer." Ins. Co. v. R. R. Co., 73 N. Y. 399. 
 
 Q. A has a policy of fire insurance for $5,000. The insured 
 property is mortgaged to B for $5,000, and in the policy is this 
 clause: "Damage, if any, payable to the mortgagee to the ex- 
 tent of his interest." As a result of a fire, the insurance com- 
 pany becomes liable for $4,000, but because of the above clause 
 in the policy, are undecided as to whom to pay the money, so 
 they refuse to pay to either. Who may bring suit? 
 
 A. Suit may be brought by either A or B, on the principle 
 that either a beneficiary or the promisee may sue on the con- 
 tract. Lawrence v. Fox, 20 N. Y. 268. 
 
CHAPTER XII I 
 
 Partnership 
 
 Q. A and B are copartners. They employ C as a manager 
 of then* busmess, and agree to give him 15% of the profits 
 of the business as his salary. Subsequently X sells a bill of 
 goods to the firm and upon their failure to pay for the same 
 sues C, claiming that A, B and C are partners. Can he recover? 
 State your reasons. 
 
 A. No. One who has no interest in the capital or business 
 of a firm, save that he is to receive a percentage of the net 
 profits of the business for his services, is not a partner with 
 the others interested in the profits. Smith v. Bodine, 74 N. Y. 
 30; Cassidy v. Hall, 97 N. Y. 159. 
 
 Q. A, B and C run stage coaches over a route divided in 
 three sections, each paying his own expenses for his own sec- 
 tion, but the money received as fare of passengers, deducting 
 therefrom the tolls paid, was divided among the parties in 
 proportion to the number of miles run by each. B, in the 
 course of one of his trips, negligently ran his coach against the 
 carriage of D who was rightfully in the highway and without 
 any fault, by which D was thrown from his carriage and re- 
 ceived severe injuries. D brought an action to recover dam- 
 ages for the personal injuries received, not only against B, 
 but also against A and C on the groimd that all three were 
 partners. The complaint alleges all these facts. A and C 
 appeared separately and each demurred to the complaint. 
 Judgment for whom and why? Give reasons. 
 
 A. Judgment for D. On these facts, in the case of Champion 
 V. Bostwick, 18 Wend. 175, it was held that they were jointly lia- 
 ble as partners, and it was said that to constitute one a partner, 
 282 
 
PAETNERSHIP 283 
 
 he must have such an interest in the profits as to entitle him to 
 an account, and give him a specific lien or preference in payment 
 over other creditors. See also M. B. Co. v. Sears, 45 N. Y. 797. 
 
 Q. A leases a hotel to B at a rental of $1,000 a year and one- 
 half of the profits of the hotel. C, knowing nothing about the 
 relation existing between A and B, delivers goods to B which 
 were not paid for. C, learning of the relation, brings an action 
 and seeks to charge A as a partner. Can he succeed? 
 
 A. No. It is well settled that a lease of real or personal 
 property at a rental to be measxired by a share of the profits, 
 does not make the lessor a partner, from the lack of an inten- 
 tion of the parties to form a partnership. Taylor v. Bradley, 
 39 N. Y. 129. 
 
 Q. A and B enter into an agreement, whereby A is to stock 
 his farm and B is to carry it on, furnishing all the labor for 
 one year. A and B are then to divide the crop. B hires C to 
 aid him in carrying on the work of the farm. C sues A for the 
 value of his services, claiming that A and B are partners. Can 
 he recover? What relation exists between A and B? 
 
 A. C cannot recover from A. This is the famihar case of 
 working a farm on shares. The relation existing between A 
 and B is not that of partners, but that of tenants in common 
 of the crop. Davis v. Morris, 36 N. Y. 569; Farmer v. Hills, 
 44 Barb. 428; Putnam v. Wise, 1 Hill, 234. 
 
 Q. A loans money to the firm of B and C, and takes a mort- 
 gage on their property, on which he is to receive interest and a 
 stipulated share of the profits. B and C agree to repay the 
 money in five years, the term fixed for the duration of the 
 partnership. D sells goods to the firm, and in default of pay- 
 ment, sues A, seeking to hold him liable as a partner. Can he 
 recover? State your reasons. 
 
 A. No. "Where a person, who has no interest in the firm 
 or capital invested, lends money to the firm, for which he takes 
 
284 PARTNEKSHIP 
 
 a mortgage on property, and is to receive interest and a guaran- 
 teed share of the profits, and which loan the borrowers per- 
 sonally agree to pay in any event, he is not a partner, and can- 
 not be held liable as such by the creditors of the firm." Curry 
 V. Fowler, 87 N. Y. 33. 
 
 Q. H loaned to the firm of A and B $2,000, in its business 
 for one year, under an agreement that he was to receive one- 
 third of the profits, and if at the end of the year he did not de- 
 cide to become a partner, he was to be repaid his money out 
 of the concern. H never received anything by way of interest 
 for his investment and never interfered in the aflfairs of the 
 firm or exercised any control. During that time L sold and 
 delivered to the firm goods which were used in its business, of 
 the value of $1,000. They were not paid for, and L brought 
 an action to recover therefor and made H a party defendant 
 with A and B. H defends on the ground that he was not a 
 partner. What should be the decision and why? 
 
 A. H is liable as a partner to the creditors of the fiirm. The 
 money he invested was used by the firm for his benefit, he had 
 an interest in the profits as such, not as a measure of compen- 
 sation. In Leggett v. Hyde, 58 N. Y. 272, which is exactly 
 in point, it was so held. The court by Folger, J., there said: 
 "that the specific interest in profits which is to make a person 
 a partner, must be a proprietary interest therein, existing 
 before the division of them into shares. The test of partner- 
 ship is a community of profits; a specific interest in the profits 
 as profits, in contradistinction to a stipulated portion of the 
 profits as a compensation for services." This rule has always 
 been adhered to and applied or recognized by the courts of 
 this state in the cases coming before them. Burnett v. Snyder, 
 81 N. Y. 555; Hackett v. Stanley, 115 N. Y. 631; Moscowitz v. 
 Sassulsky, 141 App. Div. 764; Admiral Realty Co. v. City of 
 New York, 206 N. Y. 147. 
 
 (Note.) "A person who has no interest in the business of a firm, save 
 that he is to receive a share of the profits as compensation for services, or 
 for money loaned for the benefit of the business, is not a partner, and cannot 
 
PAHTNERSHlP 285 
 
 be held liable by the creditors of the firm." Richardson v. Hughitt, 76 N. Y. 
 55. "An agreement between two parties to enter into a joint venture in 
 the purchase or sale of stocks or other property is a very common transaction. 
 The fact that one of them may have advanced the capital and the other has 
 agreed that in consideration of such advance, he should participate more 
 largely in the profits, does not convert such an agreement into a loan of 
 money. The contract is still one of partnership." Orvis v. Curtiss, 157 
 N. Y. 657. The test as to what constitutes a partnership has varied greatly 
 in the New York decisions. It can be said that the mere sharing of profits 
 and losses does not constitute a partnership. Whether or not a partnership 
 has been formed depends very largely on the intention of the parties. In 
 Magovern v. Robertson, 116 N. Y. 61, it was said that: "Persons having a 
 proprietary interest in a business and its profits are hable as partners." The 
 rule laid down in Leggett v. Hyde, supra, seems to be followed in the most 
 recent decisions. 
 
 Q. A loans B certain machines for use in B's manufacturing 
 establishment, stipulating that he is to receive one-third of 
 the profits of the business for the loan. B contracts certain 
 debts, and his creditors seek to hold A hable as a partner. 
 Can they do so? 
 
 A. No. "A person is not to be regarded as a partner even 
 as to third persons, merely because he stipulates that in retimi 
 for the hire of a chattel, he was to receive a part of the profits 
 that might be earned by the use of the chattel in the bailee's 
 business," Wilson v. Bowker, 27 Abb. N. C. 153. 
 
 Q, A and B were partners in the shoe business. A died and 
 left a will by which he directed his executors therein named 
 to conduct his interest in the business in the firm name in 
 conjunction with the surviving partners. X subsequently 
 sells goods to the firm, and seeks to hold the separate estate 
 of A for their value. Can he do so? 
 
 A. No. "The executor became a copartner in the firm 
 business, and debts incurred in the business were claims upon 
 the partnership merely, and not upon the separate estate of 
 the deceased partner. The intention of a testator to confer 
 power to continue a trade or business must be clearly expressed 
 in the will. When the simple power is conferred, it only au- 
 
286 PAETNEESHIP 
 
 thorizes the use of the fund invested in the business at the 
 time of the testator's death; the general assets may not be used, 
 unless such an intent on the part of the testator is expressed 
 in the will." Willis v. Sharp, 113 N. Y. 586. See also Colum- 
 bia Watch Co. V. Hodenpyl, 135 N. Y, 430. 
 
 Q. A holds himself out to be a partner of B and C, which he 
 is not. D gives credit to the firm without knowing anything of 
 A's partnership. State A's liability generally to the creditors of 
 the firm, and is he liable to D? 
 
 A. A is not liable to D, because the latter did not rely on the 
 holding out. A is merely a partner by estoppel, and as such is 
 only liable to those who have dealt with the firm in the belief 
 that he was a partner. ' ' A person who is not actually a partner 
 may render himself liable as though he were one, by so conduct- 
 ing himself as to reasonably induce third persons to believe 
 that he is a partner and to act upon that belief. It is the case 
 in which the principle of estoppel applies. First, the alleged act 
 of holding out must have been done by him or by his consent. 
 Second, it must have been known by the person seeking to 
 avail himself of it." Meechem on Partnership, sec. 69. "Dec- 
 larations made by a person that he is interested in a certain 
 business, not only estop him from denying his partnership 
 therein as against those who have sold goods to the alleged firm 
 on the faith of his declarations, but are also competent evidence 
 of the existence of a partnership in favor of others as to whom 
 there may have been no estoppel." Griffin v. Carr, 21 App. 
 Div. 51, aff'd in 165 N. Y. 621. "A person not actually a part- 
 ner may render himself liable as one by inducing people to act 
 upon the faith of representations by him that he is a partner, 
 the principle being that of estoppel. The holding out must 
 antedate the contract, and the plaintiff's knowledge of and 
 reliance upon his alleged connection must be proved as of that 
 time, for otherwise the plaintiff was not misled. No particular 
 mode of holding out is necessary. If he knowingly consents to 
 be represented as a partner he is liable; and his knowledge and 
 consent may be inferred from circumstances." Bates on Part- 
 
PARTNEESHIP 287 
 
 nership, sees. 90, 91; Conklin v. Barton, 43 Barb. 435; Bank 
 V. Walker, 66 N. Y. 424; Elmira Co. v. Harris, 124 N. Y. 280; 
 Whitney v. Wardell, 78 Hun, 609; Taylor v. Meyer, 47 App. 
 Div. 455. 
 
 Q. John Brown agrees with Jones and Smith, who are the 
 actual partners in the firm of Brown, Jones & Co., for $2,000 
 a year to allow his name to be used as a member of the firm. 
 The object of this arrangement was to continue the firm name, 
 Samuel Brown of the original firm having died. X sells goods 
 to the firm, not knowing who was represented by the name of 
 Brown. Subsequently having discovered the fact and the firm 
 having defaulted in payment, he seeks to hold Brown as a 
 partner. Can he succeed? State your reasons. 
 
 A. Yes. "One, who for a valuable consideration, authorizes 
 the use of his name in a partnership as if he was a member thereof 
 is liable as a partner to a subsequent creditor of the firm, and 
 this, although the creditor was ignorant of the arrangement, or 
 that the same represented such nominal partner, and did not 
 give credit on the faith of his apparent connection with the 
 firm." Poillon v. Secor, 61 N. Y. 456. "Where one is held 
 forth to the world as a partner by his authority, consent or 
 connivance, the presumption is almost absolute that he was so 
 held out to every creditor or customer. If so held out by his 
 own negligence only, he should be held only to a creditor who 
 has been actually misled thereby." Parsons on Partnership, 
 sec. 119; Ludowieg v. Talcott, 47 Misc. 83. 
 
 Q. A solvent partnership consisting of two partners owns 
 real estate. One of the partners dies. His widow claims to be 
 entitled to dower on one-half of the partnership realty. Is 
 she so entitled? What are her rights? 
 
 A. She is entitled to dower, subject to the rights of the part- 
 nership creditors and the claims of the copartners between 
 themselves. "Real estate purchased by a partnership firm 
 for partnership purposes with partnership funds, is regarded 
 in equity, so far as the firm and its creditors are concerned, as 
 
288 PARTNERSHIP 
 
 personal property. . . . After the dissolution of the firm and 
 the claims of its creditors are discharged, and the equities of the 
 respective partners in its assets are determined and satisfied, 
 such property, so far as it is preserved in specie, and is awarded 
 and conveyed to the respective members, undoubtedly loses 
 its character of personal property, and again becomes subject 
 to the rules governing the devolution of real estate. But so 
 long as the partnership affairs remain unsettled, like all the 
 other assets of the firm, its real estate is equitably pledged to 
 creditors, and liable to be disposed of and absorbed in the proc- 
 ess of liquidating the firm debts and satisfjdng the claims of 
 the respective partners as against each other." Greenwood v. 
 Marvin, 111 N. Y. 433; Simpson v. Simpson, 41 App. Div. 461. 
 
 Q. A, B and C are partners. B has the legal title to certain 
 real property bought with partnership funds and used for 
 partnership purposes. B dies leaving a widow and an heir-at- 
 law. What are the rights of the parties? State the general 
 rule. 
 
 A. The widow is entitled to dower, and the heir-at-law to 
 the remainder of B's share after payment of the partnership 
 debts and the adjustment of the partnership accounts. B's 
 share was one-third, notwithstanding the title to the whole 
 property was in his name. "For the purpose of paying the 
 debts of the firm and discharging the claims and the equities of 
 the copartners between themselves, real estate belonging to 
 the firm is treated in equity as personal property, and thus, 
 although the title stands in the name of one of the partners 
 only, he holds it in trust for the firm." Tarbel v. Bradley, 7 
 Abb. N. C. 273. "Real estate purchased for and appropriated 
 to partnership purposes and paid for out of partnership funds 
 is partnership property, although the legal title is taken in the 
 name of one of the partners; equity will hold him as trustee for 
 the firm. There is no distinction in respect to the proof neces- 
 sary to establish the fact that the real estate is partnership 
 property, between such a case and the case of a conveyance to 
 the several partners; it may be established in either case by 
 
PAETNEESHIP 289 
 
 parol evidence. For the purpose of paying debts and adjusting 
 the equities between the copartners, real estate belonging to a 
 partnership is considered as personal property, and what re- 
 mains is regarded as real estate descending to the heirs of the 
 partners according to their several interests." Fairchild v. 
 Fan-child, 64 N. Y. 471 . "On the death of either partner where 
 the title is vested in both, the share of the land standing in the 
 name of the deceased partner descends as real estate to his 
 heirs, subject to the equities of the surviving partners to have 
 it appropriated to accomplish the trust to which it was primarily 
 subjected. The portion of the land not required for partner- 
 ship equities retains its character as realty, and it leaves the 
 law of inheritance and descent to their ordinary operation." 
 Darrow v. Calkins, 154 N. Y. 503. 
 
 Q. A and B are partners in a firm in which part of the assets 
 is real estate. About a month before the time fixed for the ex- 
 piration of the partnership by the articles of copartnership, A 
 brings an action for the partition of the real estate. There has 
 been no accounting. Can A succeed in the action? Give 
 reasons. 
 
 A. No. In the absence of any accoimting between the co- 
 partners or adjustment of the copartnership accounts, the real 
 estate cannot be separated from the rest of the copartnership 
 property, and made the subject of a separate action in partition 
 to divide the same or the proceeds thereof between the parties. 
 McFarlane v. McFarlane, 82 Hun, 238. 
 
 Q. A and B are partners in the business of manufacturing 
 hats. A sells and conveys his interest in the firm to C. What 
 effect has the transfer upon the partnership? What rights does 
 C, the purchaser, acquire? 
 
 A. The transfer dissolves the firm, and as a partner's interest 
 is merely a chose in action, the purchaser thereof acquires the 
 right of a partner to an accounting and a share of the assets 
 which may be then found to be due him. "An assignment by 
 one partner in the share of the common stock, simply transfers 
 19 
 
290 PABTNERSHIP 
 
 the interest he may have in any surplus remaining after the 
 payment of the firm's debts and the settlement of all accounts; 
 nor can the partnership effects be taken by an attachment or 
 sold on execution to satisfy a creditor of one of the partners, 
 except to the extent of such interest. The remaining partners 
 are entitled to the control of the firm property and to apply it 
 to the payment of its debts. Where a partner sells his interest 
 to a stranger or it is sold upon execution against him, his right 
 to have partnership debts paid and his liability therefor dis- 
 charged out of the property, is not divested by the sale." 
 Menagh v. WhitweU, 52 N. Y. 146; Moulton v. Ins. Co.. 25 
 App. Div. 280; Wood v. Ins. Co., 149 N. Y. 385. 
 
 Q. A and B are copartners in the clothing business. They 
 purchase certain goods of C on sixty days' credit and failed 
 to pay at the expiration of that time. C's attorney brings an 
 action against A and B, but only serves the summons on A. 
 B is financially irresponsible and has fled the state. Against 
 whom should judgment be entered, and how should the exe- 
 cution be issued? 
 
 A. Judgment should be entered against A and B; it should, 
 however, be stated that B was not served. Execution should 
 be issued the same way. Section 1932 of the Code of Civ. 
 Pro. provides as follows: "In an action wherein the complaint 
 demands judgment for a sum of money against two or more 
 defendants, alleged to be jointly indebted upon contract, if 
 the summons be served upon one or more, but not upon all of 
 the defendants, the plaintiff may proceed against the defend- 
 ant or defendants upon whom it is served, imless the court 
 otherwise directs; and if he recovers final judgment, it may be 
 taken against all the defendants thus jointly indebted." Sec- 
 tion 1934 says: "An execution upon such a judgment must be 
 issued in form against all the defendants; but the attorney 
 for the judgment creditor must indorse thereupon a direction 
 to the sheriff containing the name of each defendant who was 
 not summoned, and restricting the enforcement of the execu- 
 tion as prescribed in the next section." Section 1935 is in 
 
PARTNERSHIP 291 
 
 part as follows: "An execution against property issued upon 
 such a judgment, shall not be levied upon the sole property 
 of such a defendant; but it may be collected out of personal 
 property, owned by him, jointly with the other defendants, who 
 were summoned, or with any one of them; and out of the real 
 and personal property of the latter, or any one of them." 
 
 Q. A is a partner in the firm of A, B and C. Upon an 
 individual judgment against A, an execution issues against 
 A's interest in the firm. Thirty days later, an execution under 
 a judgment against the firm is issued. There is not enough 
 property to satisfy both executions in full. What disposition 
 should be made of the firm property in reference to the execu- 
 tions? 
 
 A. The execution against the firm must be first satisfied 
 for the fuU amount called for by it. "Where a sheriff receives 
 for collection, an execution against one of the members of a 
 copartnership, and by virtue thereof levies upon the interest 
 of the judgment debtor in the goods of the firm, and where 
 within thirty days after and before a sale, he receives an execu- 
 tion against all the members of the firm for a copartnership 
 debt, the latter is the prior lien, and if upon the sale the stock 
 brings sufficient to satisfy it, he is justified in returning the 
 former execution nulla bona." Eighth Nat. Bank v. Fitch, 
 49 N. Y. 539. 
 
 Q. A, B and C enter into a partnership. A and B are both 
 infants. The firm buys certain goods of X and fails to pay for 
 them. X brings suit against the three members of the firm. 
 A and B set up infancy as a defense. X only recovers judg- 
 ment against C, and seeks to satisfy it out of the firm property. 
 Can he do so? 
 
 A. Yes. Even though the contract of an infant is voidable, 
 yet when he enters into a partnership he assumes a status, 
 one of the incidents of that status being that the property 
 of the firm is liable for its debts, and he cannot therefore be 
 relieved from the operation of this rule by reason of his infancy. 
 
292 PARTNERSHIP 
 
 Of course the separate property of the infant cannot be charged 
 with the firm debts. "In an action against copartners for a 
 partnership debt, where judgment is rendered in favor of two 
 members of the firm, on the ground that the debt was con- 
 tracted during their infancy, and against the remaining adult 
 member: Held, that the judgment agaiast the adult member 
 of the firm was a partnership liability, so far as to make the 
 moneys and property of the firm applicable to its payment," 
 Whittemore v. EUiot, 7 Hun, 518. 
 
 Q. A and B were partners. A buys out B's interest and 
 agrees to pay all the firm debts, giving B a bond binding him- 
 self to do so. X is a creditor of the firm, and sues A on the 
 bond for the amount of his claim. A demurs. Judgment 
 for whom and why? 
 
 A. Judgment for A. "Where upon the dissolution of the 
 firm, one partner executes to another a bond conditioned for 
 the payment by the partner executing it, of all the firm debts, 
 the liability of the obligor is to the obligee only, not to the 
 creditor, and an action cannot be maintained therefor by a 
 firm creditor to recover his indebtedness from the obligor." 
 Merrill v. Green, 55 N. Y. 270. See also Serviss v. McDonnell, 
 107 N. Y. 260. 
 
 Q. Upon the statement of the defendant BroTvn, that the 
 firm of Brown and Jones intends to increase its capital stock, 
 and that he. Brown, wishes to put in $1,000 as his share of 
 such increase, plaintiff loans Brown $1,000 and takes two firm 
 notes for $500 each. He sues the firm upon the notes. What 
 are the rights of the parties? What principle of law is involved? 
 
 A. The firm is not bound, as the facts show that the inten- 
 tion was to loan Brown individually. Of course, if the loan 
 was made to the firm on Brown's application, the firm would 
 be bound irrespective of the question whether or not they 
 received the money, as a partner has implied power to borrow 
 money for the firm; but as the loan was made to Brown ia- 
 
PARTNEKSHIP 293 
 
 dividually, even though he would apply the money to the 
 firm, the firm would not be bound. The statement that each 
 wanted to increase the capital stock by $1,000, shows clearly 
 that the money was loaned to Brown individually. The pre- 
 sumption raised by the giving of the firm note is rebutted by 
 the facts. "A note given by one of several partners in the 
 name of a firm, is in itself presumptive evidence of a partner- 
 ship debt; and if the other partners seek to avoid its payment, 
 the burden of proof lies upon them to show that the note was 
 given in a matter not relating to the partnership business, and 
 that with the knowledge of the payee. All the members of a 
 firm are liable for money lent to the firm upon the application 
 of one of the partners, and it is not necessary to show the actual 
 application of the money to the use of the firm, or the assent 
 of the other members to such application thereof." Whittaker 
 v. Brown, 16 Wend. 550. 
 
 Q. A, of the firm of A and B, goes to C and borrows from 
 him $500, giving therefor his individual note for that amount. 
 A subsequently places the money in the firm. The note not 
 being paid at maturity, C sues the firm. Can he recover? 
 State your reasons. 
 
 A. No. "Where money is loaned upon the promissory note 
 of one member of a copartnership and upon his individual 
 credit, the fact that the money is applied to the use of the 
 firm does not constitute the lender a creditor of the firm. It 
 is only when the name used and to which credit is given, is 
 that adopted by the firm and used to designate the partnership, 
 that it is held liable." Nat. Bank v. Thomas, 47 N. Y. 15; 
 WilUams v. Gillies, 75 N. Y. 202. 
 
 (Note.) "A lender is warranted in assuming when nothing is said, that 
 money borrowed by a partner is for the firm, but where the money is bor- 
 rowed on the individual credit of the partner, though it is applied to the use 
 of the firm, it does not thereby become an indebtedness of the firm. And the 
 same rule applies where money comes to the hands of a partner through a 
 transaction outside of the firm's business and is afterward applied to its use. 
 So on the other hand, if money is borrowed or goods purchased for the firm, 
 and upon its credit, the subsequent misappropriation of the avails by the 
 
294 PARTNERSHIP 
 
 borrowing or purchasing partner, does not relieve the firm by its liability 
 therefor." 17 Amer. & Eng. Ency. of Law, 1016. 
 
 Q. A, of the firm of A and B, buys certain goods for the 
 partnership from X in his, A's, own name. X was ignorant of 
 the existence of the partnership. The goods were applied to 
 the use of the firm. Upon discovering the facts X sues the 
 firm for the purchase price of the goods. Can the action be 
 maintained? State your reasons. 
 
 A. Yes. Partners are all liable for goods furnished for the 
 benefit of the firm, though the vendor does not know of the 
 existence of the firm, and though he supposes himself dealing 
 with, and gives credit to the individual partner by charging 
 him alone in his books. The doctrine of imdisclosed principal 
 applies, each partner being the agent for the copartnership. 
 Reynolds v. Cleveland, 4 Cowen, 282. Knowledge of the 
 existence of the partnership at the time of the dealing is not 
 essential if the partnership in fact exists and the dealings are 
 concerning its business. Ontario Bank v. Hennessy, 48 N. Y. 
 545; Cashman v. Lawson, 73 App. Div. 419. 
 
 Q. A and B were partners in the shoe business. A went 
 to C and purchased some furniture for which he gave his in- 
 dividual note indorsed by him in the partnership name. The 
 furniture was shipped to A individually as directed. The 
 firm had no knowledge that A had purchased the furniture, 
 and C also knew that the firm was engaged in the shoe busi- 
 ness exclusively. Upon maturity of the note, the same not 
 being paid, C brings action against the firm upon the indorse- 
 ment of the note. Can the action be maintained? Give 
 reasons. 
 
 A. The firm is not liable. "Where a person takes a partner- 
 ship security from one of the partners for what is known at 
 the time to be a particular debt of the partner who gives the 
 security, the copartnership is not liable. Where paper is 
 signed by one partner in the name of the firm as sureties for a 
 third, it carries on the face of it evidence that it was not given 
 
PAKTNERSHIP 295 
 
 for a partnership debt, and proof of that fact becomes unneces- 
 sary. But when it is signed or indorsed in the ordinary manner, 
 such proof must be given. But when the fact is established 
 that it was not given for a partnership debt, and that the per- 
 son from whom it was passed knew it, no matter what the 
 form of the instrument is, it does not bind the partners who 
 do not assign or assent to it." Laverty v. Burr, 1 Wend. 529; 
 Vosburgh v. Diefendorf, 119 N. Y. 357; Smith v. Weston, 
 159 N. Y. 194. 
 
 Q. A and B were copartners. B owed to X a personal debt, 
 and in payment thereof, without the knowledge of A, B turned 
 over to X $10,000 of the assets of the firm. X acted in good 
 faith, and had no knowledge at the time he was receiving co- 
 partnership property. A seeks to recover the money. How 
 would you advise him to proceed? 
 
 A. The money can be recovered as the other partner did 
 not consent to the payment irrespective of the knowledge of 
 the one receiving it. Whatever moneys were paid were part- 
 nership moneys, the title thereto being in the partnership, 
 since there had never been any dissolution of the partnership, 
 accounting or other closing of the partnership existence. The 
 cause of action to recover the money is in the partnership, 
 therefore the action may be brought in the name of the firm 
 or by the other partner in his own name; after attempting to 
 obtain the consent of his copartner to join as plaintiff, and 
 upon consent being refused he can join him as a defendant in 
 the action, the reason therefor being stated in the complaint. 
 Section 448 of Code of Civ. Pro.; Baron v. Lakow, 121 App. 
 Div. 544. 
 
 Q. A, of the firm of A, B and C, makes a contract with M 
 for partnership purposes. A is guilty of fraud in the making 
 thereof. B and C are entirely ignorant of the matter. M sues 
 A, B and C. What are the rights of the parties? 
 
 A. The firm is liable. "Where a fraud is perpetrated by 
 one of the members of a partnership in the transaction and 
 
296 PARTNERSHIP 
 
 prosecution of a partnership enterprise, they are all Uable, 
 although the others had no connection with, knowledge of, or 
 participation in the fraud." Chester v. Dickerson, 54 N. Y. 1. 
 
 Q. A and B are partners. C agrees with B that if B will give 
 him a firm contract, he, C, will pay him, B, S1,000 for his sole 
 benefit. B gives the contract to C and receives the money. A 
 knows nothing of the private agreement between his partner 
 and C. A now consults you as to his rights. What would you 
 advise? 
 
 A. B can be compelled to account to the firm for the $1,000. 
 "Any rewards or commissions secretly obtained by one partner 
 from third persons, for inducing his firm to make particular 
 purchases or sales or to enter into particular transactions, must 
 be accounted to the firm." Dunlop v. Richards, 2 E. D. Smith 
 (N. Y.), 181. "The relation of partners with each other is one 
 of trust and confidence. Each is the general agent of the firm, 
 and so bound to act in entire good faith to the other. The func- 
 tions, rights and duties of partners are similar to that of trustees 
 and agents. Neither partner can, in the business and affairs 
 of the firm, stipulate for private advantage to himself; he can 
 neither sell to nor buy from the firm at a concealed profit to 
 himself. Each advantage which he can obtain in the business 
 of the firm must inure to the benefit of the firm." Earl, J., 
 in Mitchell v. Reed, 61 N. Y. 123. 
 
 Q. A and B entered into articles of copartnership which by 
 the terms thereof the business was to continue for five years. 
 After the business had been going for one year A brought an 
 action against B wherein he sought to recover a share of the 
 profit which B had secretly made on a certain partnership 
 transaction which B endeavored to withhold from A his share 
 of the profit thereof. In the complaint A did not ask for a dis- 
 solution of the copartnership. Can A maintain the action, and 
 what effect has it upon the existence of the partnership? An- 
 swer fully. 
 
 A. The action may be maintained for an accounting with- 
 
PAETNERSHIP 297 
 
 out a dissolution of the firm; as where a partner makes secret 
 profits in a firm transaction and withholds them from his co- 
 partner, equity recognizes the right of the injured partner to 
 relief and compels the defrauding partner to account. And 
 the accounting may be had without dissolution, as the sole ob- 
 ject of the action is to enable the partner who was being de- 
 frauded to obtain his share of the partnership profits in an 
 executed transaction from the benefit of which he has been 
 excluded. Traphagen v. Burt, 67 N. Y. 30; Sanger v. French, 
 157 N. Y. 214. 
 
 (Note.) "A court of equity will not take cognizance of an action 
 for an accounting as a mere incident to the settlement of a solitary- 
 matter in dispute between the partners when it is not vital to either party 
 or to the business, and dissolution is not sought. The general rule is that a 
 court of equity, in a suit by one partner against another, will not interfere 
 in matters of internal regulation, except with a view to dissolve the partner- 
 ship. One of the few exceptions to the rule is where one partner has sought 
 to withhold from his copartner the profits arising from some secret trans- 
 action." Lord V. Hull, 178 N. Y. 9. 
 
 Q. A, B and C are partners in the butcher business. A has 
 a grudge against M's dog for having annoyed his, A's, children. 
 He throws some poisoned meat to the dog when he passes, and 
 the dog dies from eating it. M brings action against the firm 
 to recover damages. Can he recover? Give reasons in full. 
 
 A. The firm is not hable, as A's act was committed not in the 
 course of the firm's business or for its benefit, but piuely for 
 his own personal reasons. "Each partner being the agent of 
 the firm for the purpose of carrying on its business in the usual 
 way, the partnership is hable in damages for torts or wrongs 
 committed by any of the partners within the proper scope of 
 their agency. While the willful and malicious torts of a member 
 of a firm are usually not within the scope of his agency, and 
 consequently do not render his copartners liable, yet if such an 
 act is done clearly and plainly for the benefit of all and in the 
 usual and ordinary prosecution of the business of the firm, all 
 are liable, notwithstanding the malicious motive of the partner 
 conunitting the act." 17 Amer. & Eng. Ency. of Law, 1065. 
 
298 
 
 PAETNERSHIP 
 
 Q. A, one of the members of the firm of A, B and C, dies. 
 What effect has this upon the firm, and have his administrators 
 any right to act with the surviving members of the firm in the 
 distribution of its assets? 
 
 A. The death of one of the members of a firm has the effect 
 of terminating the partnership. The legal title of the assets 
 belongs to the sm-vivors, and they have the right to wind up the 
 affairs of the partnership, subject to the equitable right of the 
 representatives of the deceased partner to have them applied 
 to the payment of the firm debts, and to the distribution of any 
 surplus. WiUiams v. Whedon, 109 N. Y. 333; Smith v. Ferger- 
 son, 33 App. Div. 562; Dickinson v. Powers, 140 App. Div. 107. 
 
 Q. A and B were partners. A died. Thereafter B brought 
 an action against C in his own name on a firm debt contracted 
 before the death of A. C pleaded that there was a misjoinder 
 of parties plaintiff, claiming that the personal representatives 
 of A should have been joined in the action. What do you say 
 as to the contention of C? Answer fully. 
 
 A. The contention of C cannot prevail as the surviving part- 
 ner is the proper party to bring the action in his own name. 
 "Upon the death of one partner, the demands and choses in 
 action of the copartnership belong to the surviving partners, 
 and they possess the sole and exclusive right to reduce them to 
 possession. The law not only vests the legal title to the choses 
 in action in the surviving partner, but it casts upon him the 
 duty to get in the debts and settle the affairs of the partnership. 
 The survivor of a firm is the real party in interest (under the 
 Code) to a demand owed by or due to the firm. The debtor 
 cannot, when sued by the survivor, object that the representa- 
 tives of the deceased partner are not made parties with the 
 survivor. The test is, was the demand at the time of the death 
 of the copartner a copartnership demand? If it was, the sur- 
 vivor takes the legal title with its incidents, however limited 
 his equitable interest may be, and notwithstanding on an ac- 
 counting nothing might remain to him." Andrews, J., in Daby 
 V. Ericson, 45 N. Y. 790; Nehrboss v. Bliss, 88 N. Y. 605. 
 
PARTNEESHIP 299 
 
 Q. A and B were partners. The firm was in straitened 
 circumstances. A, wishing to give to C, a creditor of the firm, 
 preference, assigned to him all the firm property, the value of 
 which amounted to the debt due to C. What are the rights of 
 B and the firm creditors in the absence of the Bankruptcy Law? 
 
 A. They have no rights. "One partner has authority to sell 
 and transfer all the partnership effects directly to a creditor 
 of the firm in payment of a debt without the knowledge or 
 consent of his copartner, although the latter is at the place of 
 business of the firm and might be consulted. Nor is such trans- 
 fer invalid though the firm is insolvent, and thereby one credi- 
 tor acquires a preference over the other creditors of the firm." 
 Mabbett v. White, 12 N. Y. 442. See also Bender v. Hem- 
 street, 34 N. Y. Suppl. 423, where it was held, that while a part- 
 ner has the right to sell to a creditor, yet he has no such right to 
 sell to a stranger. 
 
 Q. A and B are partners. After a time the partnership is dis- 
 solved and A carries on the business. A then gives a note in the 
 firm name to C to extend the payment of a firm debt. C, who 
 all the time has known of the above facts, now sues A and B 
 as members of the firm on the note. Can he recover? 
 
 A. No. It is well settled, that one partner cannot bind the 
 other after dissolution by a firm note, even for an old firm debt. 
 This is the making of a new contract by one for all the partners, 
 after his authority is revoked. During the continuance of the 
 parti^ership, one partner is entitled to act for all as their general 
 agent. On dissolution, he ceases to hold that character and 
 must be considered as a mere joint debtor. Bank v. Norton, 
 1 Hill, 572. 
 
 (Note.) "A partnership and the authority of one member to bind the 
 others by his acts continue, notwithstanding a formal dissolution, as to third 
 persons apting in good faith and having no notice of dissolution." Bank v. 
 Weston, 159 N. Y. 201. 
 
 Q. On January 2, 1908, A and B for value received, made 
 and delivered to C their promissory note for $500, payable in 
 
300 PARTNEBSHIP 
 
 three months. A and B were in partnership at that time. In 
 May, 1913, A and B dissolved partnership. No further atten- 
 tion was paid to the note by either of the parties thereto, until 
 January 2, 1915, when B paid to C all of the interest due and 
 unpaid on the same, and $100 on account of the principal, 
 which C at once indorsed on the note as a payment thereon. 
 C thereafter sues A and B on the note. A pleads the statute 
 of limitations. On the above facts judgment for whom and why? 
 
 A. Judgment for A. After the dissolution of a partnership, 
 an acknowledgment and payment by one of the partners will 
 not revive a debt against the firm which is barred by the 
 Statute of Limitations. Van Keuren v. Parmelee, 2 N. Y. 523; 
 Robbins v. Fuller, 24 N. Y. 570. Of course B is hable, the 
 payment by him having taken the case out of the statute, as 
 far as he personally was concerned. 
 
 (Note.) "In Forbes v. Garfield, 32 Hun, 389, it was held that: "Where 
 payments are made by one of several partners after the dissolution of a firm, 
 upon a note given by the firm for goods sold to it, and such payments are 
 received by the payee in ignorance of the fact that the firm is dissolved, 
 such payments are to be treated as if made by the firm, and prevent the 
 running of the Statute of Limitations in favor of the other members of the 
 old firm." 
 
 Q. A and B are partners. The firm is dissolved by mutual 
 consent. Notice of the dissolution is pubUshed in the news- 
 papers. C, who has sold goods to the firm on credit before, 
 sells goods to A who has continued the business, not knowing 
 that the firm had been dissolved. Upon default in payment, 
 he seeks to hold B liable as a partner. B defends on the ground 
 that the firm had been dissolved and that notice of the dis- 
 solution was published in the newspapers. Judgment for 
 whom and why? 
 
 A. Judgment for C. A retiring partner remains liable as a 
 partner until proper notice of his withdrawal is given. This 
 notice in the case of former dealers must be actual, and must 
 be brought home to them. A mere publication in the news- 
 papers is not sufficient. To one who is not a prior dealer. 
 
PAKTNERSHIP 301 
 
 constructive notice, as publication ia a newspaper, is sufficient. 
 One who has sold goods to a firm on credit, even though no 
 definite time of forbearance is agreed upon, is a former dealer, 
 but one who has sold for cash is not. Clapp v. Rogers, 12 
 N. Y. 283; Bank v. Howard, 35 N. Y. 500. "A retiring partner 
 is liable for subsequent engagements made by his former co- 
 partner in the firm name with those who had previous dealings 
 with the firm, and who entered into the new transaction with- 
 out notice of the change of the firm. A person who is entitled 
 to actual notice of the dissolution must be one who has had 
 business relations with the firm, by which a credit is raised 
 upon the faith of the copartnership. To relieve a retiring 
 partner from subsequent transactions in the firm name, notice 
 of the dissolution must be brought home to the person giving 
 the credit to the partnership. Pubhcation of notice of dis- 
 solution will not relieve a retiring partner from liability to one 
 dealing previously with the firm, but will be sufficient as to 
 others." Andrews, J., in Austin v. Holland, 69 N. Y. 571, 
 where it was held that the mailing of notice to a prior dealer, 
 it never having reached him, was not sufficient. Bank v. 
 Herz, 89 N. Y. 629; Bank v. Weston, 159 N. Y. 211. 
 
 Q. A and B were engaged in the coal business as partners 
 under the firm name of A & Co. The firm entered into a valid 
 contract with C for the sale of one thousand tons of coal to be 
 delivered in lots of two hundred tons at a time. After the 
 firm had delivered to C six hundred tons of coal under their 
 contract with C, the firm was dissolved, B retiring from the 
 firm and his place being taken by D, and thereafter the firm 
 was continued by A and D under the same firm name, A & Co. 
 Notice of the dissolution of the old firm and the formation of 
 the new one was mailed to C but not received by him. The 
 new firm ships part of the balance of the coal to C, but re- 
 fuses to deliver all the coal specified in the original agreement. 
 The firm brings action to recover for the coal already de- 
 livered. Can they recover? 
 
 A. No. "It is to be noticed that there is no evidence in the 
 
302 PARTNEESHIP 
 
 case that the defendant ever made any contract whatever 
 with the new fima for the purchase from it of any coal whatever, 
 and the only request by defendant that it deliver any coal 
 is that contained in the letter from which it is evident that 
 he considered the W. H. P, & Co. to whom he was writing 
 as the old firm and the defendant distinctly testified that he 
 never received the notice of dissolution. It is apparent, there- 
 fore, that the coal for which plaintiffs seek to recover was 
 never purchased from them by this defendant. Not only 
 have plaintiffs been allowed to recover upon a contract that 
 was never made with them but with an entirely different party 
 (the old firm), and a judgment rendered in favor of these plain- 
 tiffs would not bar an action by the old firm for the same coal. 
 This seems to be clear error for which this judgment should be 
 reversed." Parker, P. J., in Piper v. Seager, 111 App. Div. 115. 
 
 Q. The firm of A and B have been dissolved by mutual 
 consent. During the process of dissolution, A obtains certain 
 promissory notes discounted and retains the money so ob- 
 tained. B brings an action against him for conversion. Can 
 the action be maintained? 
 
 A. No. In the absence of an accounting, one partner cannot 
 sue the other at law, nor can one partner maintain an action 
 against his copartner for a conversion of firm assets after a 
 dissolution. Arnold v. Arnold, 90 N. Y. 580; Smith v. Fitchett, 
 56 Hun, 474; Belanger v. Dana, 52 Hun, 39. 
 
 Q. A and B entered into limited copartnership under the 
 statute, each contributing $50,000. A was the special partner 
 and B the general one. The firm failed. State the liability 
 of A and B respectively. 
 
 A. The special partner is only liable for the amount that 
 he contributed to the firm, that is, the $50,000. B would be 
 liable for the entire debts of the partnership. Section 6 of the 
 Partnership Law (Consolidated Laws, chap. 39) governs the 
 liability of a general partner, and is as follows: "Every general 
 partner is liable to third persons for all the obligations of the 
 
PARTNERSHIP 303 
 
 partnership, jointly and severally with his general copartners." 
 Section 7 of the Partnership Law (Consolidated Laws, chap. 
 39) governs the liability of a special partner, and is as follows: 
 "A special partner, except as declared in this chapter, is liable 
 for thfe obligations of the limited partnership only to the amount 
 of the capital invested by him therein." 
 
 (Note.) In order to avail himself of the benefit of a special partner, the 
 payment or the amount invested must be actually paid. "The immunity 
 of a special or limited partner from general liability is founded upon the 
 statute which clearly contemplates a payment in good faith, by the special 
 partner of the contribution to the capital stock of the firm, specified in the 
 certificate. Hence if it was not paid, and the statement in the certificate 
 signed by all the partners and in the affidavit attached, was false, the statute 
 was no protection to the one claiming the right or immunity of a special 
 partner." Hotopp v. Huber, 160 N. Y. 528. 
 
 Q. A and B entered into a limited partnership agreement 
 under the statute, which was filed, recorded and published, 
 in which A was made the general partner and B the special or 
 limited partner, with a capital of $75,000 of which A contrib- 
 uted merchandise and accounts amounting to $50,000, and 
 B contributed merchandise and accounts amounting to $25,000. 
 The partnership failed with liabilities amounting to $75,000. 
 What is the liability of A and B respectively, for the debts 
 of the firm? Answer fully. 
 
 A. Both are equally liable for the entire debt as general 
 partners, for it is well settled under the Limited Partnership 
 Act (sec. 30, Partnership Law, ConsoHdated Laws, chap. 44) 
 that the contribution of capital by the special partner must 
 be made in cash, and the payment in anything else will not 
 satisfy the requirements of the statute. Haviland v. Chase, 
 39 Barb. 283; Van Ingen v. Whitman, 62 N. Y. 513;''Durant v. 
 Abendroth, 69 N. Y. 148; Bank v. Sirrett, 97 N. Y, 320. The 
 statute defines special partners as those "who contribute in 
 actual cash payments, a specified sum as capital, to the common 
 stock." 
 
CHAPTER XIII 
 
 Quasi Contracts 
 
 Q. A by written contract hires B to work for him for one year. 
 At the end of three months, B leaves the employment without 
 any cause. A refuses to pay for the services rendered, B 
 brings action to recover the value of the services upon a quan- 
 tum meruit. Can the action be maintained? State your rea- 
 sons, 
 
 A, No, In this case the doctrine of unjust enrichment does 
 not apply. Marsh v, Ruleson, 1 Wend. 514, "Where a servant 
 on contract, without cause, goes away declaring that he will 
 work no more, the master is not bound to receive him again, 
 nor can the servant procure a pro rata compensation." Lantry 
 V. Parks, 8 Cowen, 63. "Where a party enters into a contract 
 and having performed part of it, without the consent of the 
 master voluntarily abandons further performance of it, he 
 cannot maintain an action for the labor actually performed. 
 Where the contract is entire, a full performance is necessary 
 to the plaintiff's right of action," Jennings v. Camp, 13 Johns, 
 94, These cases proceed upon the ground that the contracts 
 were entire in the sense that full performance of the services 
 contracted for was, by the agreement of the parties, to be made 
 before anything became payable by the employer. The con- 
 tract being entire, the entire performance is a condition prec- 
 edent to a recovery for services rendered. Smith v. Brady, 
 17 N. Y. 185. 
 
 Q. A was employed by B at the rate of $2,000 per annum, 
 nothing more being mentioned. At the end of the first month, 
 A left the employ of B without any cause, and demanded of B 
 pay for the month, which was refused. A brings action against 
 B to recover for the month's service to which B answers the 
 304 
 
QUASI CONTRA.CTS 305 
 
 breach by A and his own readiness to perform. Under the 
 above facts, who should have judgment and why? 
 
 A. Judgment for A. Where there is a hiring at so much a 
 year and nothing more being said, this is considered as a hiring 
 at will which may be terminated by either party at any time. 
 The words "at so much a year" designates the rate of salary, 
 but does not specify the time of hiring. Hotchkiss v. Godkin, 
 63 App. Div. 470; Outerbridge v. Campbell, 87 App. Div. 
 597; Martin v. Ins. Co., 148 N. Y. 117. 
 
 Q. A is employed by B as a salesman for one year by written 
 contract at $3,000 per annum, payable in monthly installments. 
 A, having violated B's instructions not to sell goods on consign- 
 ment, is discharged after having worked for one month. He 
 brings action for one month's salary. Can he recover? 
 
 A. Yes. The contract was not entire, but was separable to 
 the extent of the monthly installments. "The rule deducible 
 from these as well as from all the cases in this state that we 
 have examined, is that even where a contract is made for a year, 
 but there is provision for periodical payments during the time 
 and the contract in its nature does not necessarily contemplate 
 entire performance as a condition precedent to compensation, 
 the servant when discharged for cause is entitled to recover the 
 amount due for the month or his monthly wages as wages 
 earned, subject to recoupment by the master for any damages 
 suffered by him by reason of the neglect, unskillfulness or 
 nonperformance of the servant." O'Brien, J., in Walsh v. N. Y. 
 & Ky. Co., 88 App. Div. 485; Delmar v. Kinderhook Co., 134 
 App. Div. 560. 
 
 (Note.) "Where in a contract for work, labor and services there is an 
 agreement to pay from time to time during the term, a recovery can be had 
 for the wages earned, though the servant abandons the service, without 
 cause, before the expiration of the term." Mernagh v. Nichols, 132 App. 
 Div. 509. 
 
 Q. A is hired by B as a clerk by the month at a salary of 
 $100. A starts work on the first of the month and works until 
 20 
 
306 QUASI CONTRACTS 
 
 the fifteenth when he is discharged by B without cause. A 
 brings action for $50 as wages due him. Was the action properly- 
 brought? 
 
 A. No. The action should not have been brought for wages, 
 but for damages for breach of contract. Where during the 
 month and before the salary becomes due and payable under the 
 contract, an employee is discharged, no recovery in an action 
 such as this can be had for the days in that month dxiring which 
 the services may have been performed, and for the reason that 
 the contract is an entirety as to each month and recovery for 
 any portion thereof could be had not in an action for wages, 
 but only in an action for damages for breach of contract. 
 Whether rightfully or wrongfully discharged, therefore, the 
 cases hold that the employee's remedy would be not in a suit 
 to obtain a proportionate amount of the month's salary as 
 wages due, but rather in an action for breach of the contract 
 therein to recover upon a quantiun meruit. The causes of 
 action are separate and distinct. Arnold v. Adams, 27 App. 
 Div. 345; Allen v. Creamery Co., 101 App. Div. 306; Weed v. 
 Burt, 78 N. Y. 191 ; Perry v. Dickerson, 85 N. Y. 345. 
 
 Q. A hires B as managing engineer to supervise the con- 
 struction of a certain railroad. After having worked six months, 
 B becomes seriously ill, so as to be incapacitated from doing 
 any further work. The contract provided that B was to work 
 for one year for $10,000. A refuses to pay for the work already 
 performed. B brings suit to recover $5,000 which he claims is 
 due him. A sets up as a defense that the contract was entire, 
 and alleges nonperformance. Judgment, for whom and why? 
 Give your reasons. 
 
 A. B can recover on a quantum meruit, and as this is a special 
 contract could probably recover the proportionate amount of 
 the contract price. B having been prevented from performing 
 without any fault on his part, A would be unjustly enriched if 
 he were not compelled to pay for the work already performed. 
 "One, who under a contract requiring his personal services, 
 
QUASI CONTRACTS 307 
 
 and providing for partial payment during the employment 
 and the remainder at the end of the term, performs services 
 valuable to the employer, but is, before the stipulated period, 
 disabled by sickness from completing his contract, is entitled 
 to recover as upon a quantum meruit for such services as he 
 rendered." Wolf v. Howes, 20 N. Y. 197. "The compensa- 
 tion of an agent or servant employed under a special contract, 
 a complete performance of which is prevented by his sickness 
 or death, is not confined to a quantum meruit, but is to be 
 measm-ed by the contract." Clark v. Gilbert, 26 N. Y. 279. 
 
 Q. A hires B, an infant, to work for him in his grocery store 
 at $20 per month. After working two weeks, the boy becomes 
 dissatisfied with the place and, without the knowledge of the 
 employer, leaves in the nighttime and returns to his home. 
 His father subsequently brings action for the services rendered. 
 Can the action be maintained? Give your reasons in full. 
 
 A. Yes. The case of infants is an exception to the rule, that a 
 servant who voluntarily leaves his position, cannot recover for 
 the services already performed. "In an action by an infant 
 to recover for work and labor, it is neither a defense nor a 
 ground for reducing the damages, that the work was done 
 under a contract by the infant to labor for a fixed period of time, 
 which he violated by leaving the defendant's employ without 
 cause before the time expired." Whitmarsh v. Hall, 3 Denio, 
 375. 
 
 Q. A, on December 1, 1913, hires B by verbal agreement to 
 work for him for one year from January 1, 1914. B enters upon 
 the employment and works for six months. A, not being satis- 
 fied with B's work, discharges him. B brings action to recover 
 for the work performed. A defends that the contract is void 
 under the Statute of Frauds. Judgment for whom and why? 
 
 A. Judgment for B. As A was unjustly enriched by the 
 services of B, the latter can recover as upon a quantum meruit. 
 The statute would be a good defense if the action was brought 
 upon the contract, but here a recovery is allowed upon the 
 
308 
 
 QUASI CONTRACTS 
 
 principle of quasi contract. "Where services are rendered 
 under a contract void by the Statute of Frauds, no action can 
 be naaintained to recover their value, except upon the default 
 of the other party or his refusal to go on with the contract. A 
 party who refuses to go on with an agreement void by the 
 Statute of Frauds, after having derived a benefit from part 
 performance, must pay for what he has received. An implied 
 promise to pay for part performance can arise only when the 
 party sought to be charged has had the benefit of the part per- 
 formance, and has himself refused to proceed, or otherwise 
 prevented or waived full performance." Galvin v. Prentice, 
 45 N. Y. 162; Thacher v. R. R. Co., 76 Misc. 61; Day v. R. R. 
 Co., 51 N. Y. 583. 
 
 Q. A who was an attorney and counselor at law, appeared 
 and defended on behalf and at the request of B certain actions 
 brought against him. A sent B a bill for $500 for the said 
 services. B refused to pay and A brings action for $1,000. At 
 the trial he offers to show that the services were actually worth 
 $1,000. Can he do so? 
 
 A. Yes. A was not concluded as to the value of his services 
 by the bill rendered by him, as the amount was neither paid 
 nor tendered. "Had the defendant paid the bill presented, it 
 would have been an accord and satisfaction of the services, 
 although less than their real value. But the defendant chose 
 to litigate, and the question of the value of the services was open 
 to proof as a question of fact." Shankland, J., in Williams v. 
 Glenny, 16 N. Y. 389. See also Shiland v. Loeb, 58 App. Div. 
 565. 
 
 Q. Plaintiff, seeing fire spreading upon defendant's land 
 during defendant's absence, hired men to put it out, and thereby 
 saved defendant's house from destruction. He sues defendant 
 for the money expended. What are the rights of the parties? 
 
 A. He cannot recover, for the services were purely gratuitous 
 and the principle of unjust enrichment does not apply in such 
 a case. "Labor or services voluntarily done or performed by 
 
QUASI CONTBACTS 309 
 
 the plaintiff for the defendant without his privity or request, 
 however meritorious or beneficial it may be to the defendant, 
 as in saving his property from destruction by fire, affords no 
 right of action." Bartholomew v. Jackson, 20 Johns. 28. See 
 also Ingraham v. Gilbert, 20 Barb. 151; Matter of Pinkerton, 
 49 Misc. 370. 
 
 Q. A owed C $500 on a note; A was away at the time of its 
 maturity, having made no provision for its payment. B, who 
 took a friendly interest in the affairs of A, without any request 
 of A, paid the note when due, and C thereupon cancelled it. 
 B honestly expected, when he made the payment, because of his 
 friendly relations with A, that A would repay him therefor. 
 When A returned, B informed him of the payment of his, A's 
 note, for which A expressed his gratitude and promised to repay 
 B. Upon A's failure to pay, B brings suit to recover the amount 
 so paid for A's benefit. Can he recover? 
 
 A. The money having been paid by A without being re- 
 quested to do so, was gratuitous and without consideration. 
 The subsequent promise was based upon a past or executed 
 consideration and therefore void, hence no recovery can be had. 
 And the doctrine of imjust enrichment cannot be made to apply 
 to a case like this. ''An express promise, therefore, can only 
 revive a precedent good consideration, which might have been 
 enforced at law, but can give no original right of action, if the 
 obhgation upon which it is founded never could have been 
 enforced." Smith v. Ware, 13 Johns. 258. 
 
 Q. A makes an agreement with B to purchase a piece of land 
 from him for $5,000. The agreement is verbal, but A pays to 
 B $500 to bind the bargain. On the next day, A becoming 
 dissatisfied with his contract and receiving a more advantage- 
 ous offer from a third party, demands the return of his $500 
 from B. B comes to you for advice. What would yoii inform 
 him are his rights? 
 
 A. B has a right to retain the $500. A cannot invoke the 
 principle of unjust enrichment in his favor, for he has himself 
 
310 QUASI CONTRACTS 
 
 broken the contract; he cannot found a recovery upon his 
 own breach. B has no right of action to compel specific per- 
 formance, as the contract is void under the Statute of Frauds, 
 being a contract for the sale of lands, which must be in writing; 
 part payment does not take the case out of the statute. Law- 
 rence V. Miller, 86 N. Y. 131. See also Ketchum v. Evertson, 
 13 Johns. 358; Page v. McDonnell, 55 N. Y. 299. 
 
 Q. A agrees with B to build a house for him and deliver the 
 same completed by October 1, 1913. A performs most of the 
 work, and the house is substantially completed by Septem- 
 ber 15, 1913, but has not been delivered into the possession of B, 
 and on the 16th of September is destroyed by fire. B has al- 
 ready paid to A several installments of the price, amounting 
 in all to $1,000. On October 2, A not having delivered the 
 house, B brings action to recover the money paid and also 
 damages for nonperformance of the contract. Can the action 
 be maintained? State your reasons. 
 
 A. Yes. This seems rather a harsh ease, but recovery is 
 allowed on the ground that A not having performed his contract 
 by delivering the house, would be unjustly enriched by a re- 
 tention of the money. "One who has agreed to buUd a house 
 on the land of another, and has substantially performed his 
 contract, but has not completely finished the house nor de- 
 livered it, when it is destroyed by fire, is liable to an action for 
 money advanced upon the contract and damages for its non- 
 performance. Where a party engages unconditionally by 
 express contract to do an act, performance is not excused by 
 inevitable accident, or other unforeseen contingency not within 
 his control." Tompkins v. Dudley, 25 N. Y. 272; Ward v. H. 
 R. Co, 125 N. Y. 230; C. H. Realty Co. v. City of Albany, 207 
 N. Y. 382. 
 
 Q. A agrees to do certain fresco painting in the house of B. 
 He enters upon the work, and when it is about half finished, 
 the building is destroyed by fire. A brings action to recover 
 for the value of the work already finished. Can he recover? 
 
QUASI CONTRACTS 311 
 
 A. Yes. A recovery is allowed in this case, on the ground 
 that there is an implied condition annexed to the contract of 
 the continued existence of the thing upon which the work is to 
 be done. The owner of the house must keep it in readiness for 
 the performance of the work, and even though it is destroyed 
 without his fault, he is liable for the labor actually performed 
 thereon before its destruction. Niblo v. Binsse, 3 Abb. Court 
 of Appeals, Dec. 375; Whelan v. Ansonia Clock Co., 97 N. Y. 
 295. 
 
 Q. A enters B's house and agrees to perform certain services 
 for him without compensation. He works for two years and 
 then leaves. He subsequently brings action to recover for the 
 value of the services rendered. Can he recover? 
 
 A. No. The principle of unjust enrichment does not apply 
 to this case. "Where one agrees to work for another gratui- 
 tously, although he may afterwards refuse to do so, he cannot 
 recover for the services rendered." Doyle v. Church, 133 N. 
 Y. 372. 
 
CHAPTER XIV 
 
 Real Property 
 
 Q. A dies leaving a farm upon which there is growing grass 
 and corn. To whom does the corn and grass belong, the heir 
 at law or the administrator? 
 
 A. The grass belongs to the heir at law, and the corn goes 
 to the administrator; the former being considered realty, while 
 the latter is personalty. A distinction has always been taken 
 between growing crops of grain and vegetables, such as wheat, 
 com and potatoes, the annual produce of labor in the cultiva- 
 tion of the earth, and growing trees, fruit and grass, the natm-al 
 produce of the earth, which grow spontaneously and without 
 cultivation. The grass and fruits growing on the lands, be- 
 longing to an intestate at the time of his decease, are not 
 assets belonging to the administrator, but descend with the 
 land to the heir. Kain v. Fisher, 6 N. Y. 597. The crops being 
 treated as personalty pass to the administrator. Matter of 
 Chamberlain, 140 N. Y. 390. 
 
 Q. A by will, devises all his real property to his son John, 
 and all his personal property to his daughter Mary. At the 
 time of his death, there were one hundred acres of wheat 
 growing upon the farm, about half of which had been cut and 
 bound. There was also a large orchard, and one hundred 
 bushels of apples had been picked and barreled. A has debts 
 amoimting to $1,000, which either the apples or the wheat 
 will satisfy. To whom and in what shares do the apples and 
 the wheat belong, and out of which must the debt be paid? 
 
 A. The wheat that has been cut and the apples that have 
 been picked are personalty, and therefore go to the daughter; 
 the apples on the trees go to the son. The cut wheat and the 
 312 
 
BEAL PKOPERTY 313 
 
 picked apples must be used to satisfy the debt. If the uncut 
 wheat is not needed for the payment of the testator's debts, 
 it passes to the devisee, and the devisee has a right to call upon 
 the executors to apply to the payment of the debts all other per- 
 sonal property not specifically bequeathed, before recourse is 
 had to the crops. When the owner of the land has made a 
 will devising the land'to a certain person, it is said that there is 
 evidence of an intention on his part, to have those lands go to 
 the devisee in the condition in which they are at his decease. 
 "Where land, upon which a crop is growing, is devised in such 
 form as to convey it to the devisee, the crop is put upon the 
 footing of a chattel specifically bequeathed, and cannot be 
 sold for the payment of general legacies, but only for the pay- 
 ment of debts, after the other assets not specifically bequeathed, 
 have been applied." Bradner v. Faulkner, 34 N. Y. 347; 
 Stall V. Wilbur, 77 N. Y. 153; Batterman v. Albright, 122 N. Y. 
 484. 
 
 Q. A devised his farm to B for life, and after the death of B 
 the farm to go to C in fee. B went in possession and sowed the 
 farm with wheat, but before the crop was harvested, B died 
 and thereafter C took possession of the farm as remainderman. 
 The administrators of B undertook to gather the wheat, but 
 C forbade them, claiming that the wheat belonged to him. 
 To whom does the wheat belong, and what are the rights of 
 the parties? Give reasons. 
 
 A. The administrators of B are entitled to the wheat, and 
 are entitled to go upon the land to harvest the same. "At 
 common law those products of the earth which are annual, 
 and are raised by yearly manurance and labor, and essentially 
 owe their annual existence to the cultivation by man, termed 
 emblements, and sometimes fructus industriales, Were even 
 while still annexed to the soil, treated as chattels, with the 
 usual incidents thereof as to seizure on attachment during the 
 owner's life, and transmission after his death. This class in- 
 cluded grain, garden vegetables and the like. On the other 
 hand, the fruit of trees, perennial bushes and grasses and called 
 
314 EEAL PROPERTY 
 
 by way of contradistinction, fructus naturales, were, while un- 
 severed from the soil considered as pertaining to the realty." 
 10 Amer. & Eng. Ency. of Law, 1038. The tenant is not en- 
 titled to emblements where the termination of his lease is 
 fixed and certain, but in the case of a life tenant where the 
 estate is uncertain and it is terminated by death the personal 
 representatives of the life tenant are entitled to any crop 
 planted before his death as emblements. Hamilton v. Austin, 
 36 Hun, 142; Whitmarsh v. Cutting, 10 Johns. 360. 
 
 Q. A cherry tree stands wholly upon the lands of A, with 
 limbs overhanging the lands of B. The lands of A and B are 
 separated by a rail fence. To whom do the cherries on the 
 limbs of the tree which overhang the lands of B belong? An- 
 swer in full. Reasons. 
 
 A. The ownership of the entire tree follows the ownership 
 of the land upon which the trunk of the tree stands, and that, 
 regardless of the fact that a part of the roots may extend into 
 the neighboring land. Therefore the entire fruit of the tree, 
 including that growing on the overhanging branches, belongs 
 to A. Dubois V. Beaver, 25 N. Y. 123; Hoffman v. Armstrong, 
 48 N. Y. 201. 
 
 Q. A tenant, under a parol lease for one year which expired 
 on March 1, 1908, in the fall of 1907 planted a crop of winter 
 rye which could not be harvested until March 1, 1908. In 
 1908, subsequent to March first, the landlord who was then in 
 possession, harvested the crop, which was worth $500. The 
 landlord claims its entire ownership as against the former 
 tenant. The seed planted by the tenant was worth $100. 
 State the principle of law governing the transaction, and who 
 is entitled to the rye. 
 
 A. The landlord is entitled to the crop of rye, and is not 
 Uable for the value of the seed. The tenant knew when he 
 planted the seed that he could not harvest the crop until after 
 the expiration of his lease, therefore he has no claim to the crop. 
 "A tenant by parol for a single year, has not, save by express 
 
BEAL PROPERTY 315 
 
 stipulation, or custom of the country or estoppel in pais, a 
 right to an outgoing crop. It is true that a tenant holding by a 
 tenxu-e which is uncertain as to the time at which it will cease, 
 is entitled to take off, after it has ceased, the crop which he has 
 sowed in due course of husbandry. But if it is certain at the 
 time when he sows, how long it will continue, and it is plain 
 ,that he cannot, before it ceases, reap that which he may sow, 
 then.it is his own folly if he sows and he will not be permitted 
 
 to rea;pi^ Folger, J., in Reeder v. Sayre, 70 N. Y. 184, 185. 
 
 > 
 
 Q. A and B own adjoining lands; a bam on A's land stands 
 on stone abutments. A sells B fifteen feet next to B's lot, 
 and the deed makes no reservation. The fifteen foot line cuts 
 the barn in two. A parol agreement that A could remove the 
 bam was made between the parties and A has done so. B sues 
 for damages. Can he do so? 
 
 A. Yes, as title to half of the bam passed to B by the deed 
 conveying the fifteen feet. "Where lands and buildings thereon 
 belong to the same person, the buildings are a part of the realty 
 and pass upon a conveyance thereof, and neither the grantor 
 nor those claiming under him may show that it was agreed 
 by parol that a building was to be reserved. He can retain 
 title to the buildings only by some reservation in the deed, or 
 by an agreement in writing answering the Statute of Frauds." 
 Leonard v. Clough, 133 N. Y. 292. 
 
 Q. A, the owner of certain real property, executed and de- 
 livered a deed thereof to B, her husband, the grantee named 
 therein, on the oral condition that if B did not need the prop- 
 erty for his business, he was to reconvey the same to his wife, 
 A. B did not need the property for his business, and A made 
 due demand upon B for a reconveyance of the property as 
 agreed, but B refuses to do so. "What rights, if any, has A 
 under the circumstances? Give reasons. 
 
 A. A has no right under the circumstances, and cannot 
 compel a reconveyance of the property from B. "If we should 
 give full effect to the plaintiff's claim, it would be to hold the 
 
316 EEAL PEOPERTY 
 
 delivery by her of the deeds to have been conditional and not 
 absolute; but that would be violative of the settled rule in this 
 state that a delivery cannot be made to the grantee condi- 
 tionally. Any oral condition accompanying the deUvery, in 
 such case, would be repugnant to the terms of the deed, and 
 parol evidence to prove that there was such a condition at- 
 tached to the delivery is made inadmissible. The reason for 
 the rule apphes to every case where the delivery is intended 
 to give effect to a deed without the further act of the grantor. 
 And such was this case; for she intended to convey to her 
 husband, whatever their arrangement at the time, that the 
 properties should remain hers, if not needed in his business. 
 It was not a case where the deeds were not to pass out of the 
 possession of the grantor, until certain conditions were ful- 
 filled. These deeds had passed out of the plaintiff's possession 
 and into that of the grantee, by the deUberate act of the former, 
 and no oral condition, at the time, will be admitted to contra- 
 dict the import of the written instruments." Gray, J., in 
 Hamlm v. Hamlin, 192 N. Y. 169. 
 
 Q. A was erecting an apartment house in the city of New 
 York, and contracted with B for certain mirror frames to be 
 put in places left in the walls for that purpose. The frames 
 were made and fastened in the walls by hooks and screws; if 
 they were removed the walls would appear unfinished. The 
 frames corresponded with the cabinet work of the rooms. After 
 the completion of the work, A failing to pay for the same, B 
 files a mechanic's lien. Can he do so? State your reasons. 
 
 A. Yes, as the mirror frames formed part of the realty. The 
 intention of the person at whose instance the annexation was 
 made to make these mirror frames a permanent accession to 
 the house is directly apparent. There is an actual annexation 
 made during the process of the building. These mirror frames 
 were not brought into the house as a completed article of 
 furniture, but they formed a part of the completion of the 
 structure. The facts show that they were an essential part 
 of the inner surface of the building; that they were of material 
 
REAL PROPERTY 317 
 
 and construction to correspond with the fittings of. the build- 
 ing; that they were fastened to the walls by hooks and screws; 
 while they might be removed, nevertheless their removal would 
 have left an unfinished wall and would have required work to 
 supply their absence. It is from these circumstances that 
 the intention to make them a part of the realty is gathered. 
 See Ward v. Kirkpatrick, 85 N. Y. 413. In McKeage v. Ins. 
 Co., 81 N. Y. 38, where mirrors were brought into a house 
 after its completion, as mere furniture for the purpose of orna- 
 ment, it was held that they were personalty. 
 
 (Note on Fixtuees.) Fixtures are articles which in themselves are per- 
 sonal property, but which by the actual or constructive annexation to the 
 freehold have become a part of it, and consequently have taken on the form 
 of realty. The paramount test, whether a given article be a part of the 
 realty or whether it remains personalty, is the intention with which the an- 
 nexation was made; that intention is the apparent and evident intention, 
 and which may be found in an express agreement to that effect, or in the 
 absence of an express agreement it must be gathered from the following 
 circumstances; The character of the annexation; the adaptability of the 
 thing annexed to the use of the freehold to which it is annexed; the relation- 
 ship existing between the parties between whom the question as to whether 
 the given article be a part of the realty or not arises, and in connection with 
 the last test, the rule is that as between vendor and vendee, and as between 
 mortgagor and mortgagee, the courts will adjudge the property annexed to 
 be real estate rather than personal property, and consequently passing by a 
 conveyance of the land. As between heir at law and personal representatives, 
 executors and administrators, the same strict rule that is applied as between 
 vendor and vendee applies, and that the article affixed will go to the heir at 
 law unless a contrary intention on the part of the testator be evidenced from 
 the circumstances. But as between landlord and tenant the rule is greatly 
 relaxed, and as between them, articles which are affixed for ornament or 
 domestic convenience and certain articles affixed for the purpose of trade, 
 will be held to be personalty and removable by the tenant. Bishop v. Bishop, 
 11 N. Y. 123; Snedacker v. Waring, 12 N. Y. 170; Murdock v. Gifford, 18 
 N. Y. 28; McRea v. Bank, 66 N. Y. 489. The Court of Appeals in the case 
 of Potter v. Cromwell, 40 N. Y. 287, after a full examination of the numerous 
 authorities, gave its approval to the criterion of a fixture as follows: "The 
 union of three requisites, First: Actual annexation to the realty or something 
 appurtenant thereto. Second: Application to the use or purpose to which 
 this part of the realty with which it is connected is appropriated. Third: 
 The intention of the party making the annexation to make a permanent 
 accession to the freehold." This statement has been quoted with approval 
 
318 REAL PROPERTY 
 
 in many later decisions. Voorhees v. McGinnis, 48 N. Y. 278; McFadden v. 
 Allen, 134 N. Y. 489; Natl. Co. v. Yuengling, 125 N. Y. 1; Matter of City 
 of New York, 192 N. Y. 295. 
 
 Q. A tenant who was in possession of a factory under lease, 
 removed a certain machine belonging to the landlord and 
 which was on the premises and was included in the lease. He 
 placed in the factory a new machine on the foundation of the 
 old one that he removed for the purpose of conducting his 
 business. The tenant's term is about to expire and he wishes 
 to remove the new machine and to put back the old one, but 
 the landlord refuses to permit him to do so, claiming that the 
 same belongs to him. What do you say? Give reasons. 
 
 A. The tenant has a right to remove the machine, as it is a 
 trade fixture, and as such removable by him before the expira- 
 tion of his term, especially as the machine was attached in such 
 a manner that it could be readily removed without any serious 
 impairment to the building itself, which is an important cir- 
 cumstance bearing upon the right of the tenant to remove the 
 fixture. Andrews v. Day Button Co., 132 N. Y. 348. There 
 was no intention to have the new machine form part of the 
 realty. In the annexation of fixtures of this character by a 
 tenant to the leasehold, the intent with which the property 
 is attached is an important fact in determining whether the 
 property is permanently affixed to the land or the right of 
 removal remains in the tenant. Kribbs v. Alvord, 120 N. Y. 
 519; Conde v. Lee, 56 App. Div. 401. 
 
 Q. A leases land of B for one year and puts a building thereon 
 for the purpose of his business. At the expiration of the year 
 the lease is renewed for three years. The second lease is in 
 writing and does not mention the building in any way. A 
 short time before the expiration of the second lease, A desiring 
 to terminate his tenancy consults you as to his right to remove 
 the building. What would you advise are his rights? 
 
 A. He has no right to remove the building. "The tenant 
 must remove fixtures during the term in which he erects them. 
 
REAL PROPERTY 319 
 
 If he fails to remove them during the term there is an abandon- 
 ment of the fixtures to the owner of the land; title to them 
 passes to him. The taking of a new lease, though it be on the 
 same terms of the original lease, is not a waiver of the abandon- 
 ment, and the tenant cannot, during the second term created 
 by the giving of a new lease, remove the fixtures; his rights 
 in them are lost by his failure to remove them durmg the first 
 term. If the tenant desires the right to remove the fixtures he 
 must reserve the right expressly to himself in the new lease." 
 Loughran v. Ross, 45 N. Y. 492. "The right of a tenant to 
 remove fixtures erected for trade is conceded to him for reasons 
 of public policy, and being the nature of a privilege he must 
 exercise it before the expiration of the term or before he quits 
 the premises." Talbot v. Cruger, 151 N. Y. 117. 
 
 Q. A and B each own adjoining lots; each has a well on his 
 own lot. B gets angry at A and maUciously sinks his well deep 
 enough to destroy the general soiirce, thereby drying up A's 
 well completely. What action, if any, has A against B? State 
 the general rule. 
 
 A. A has no right of action against B. Percolating waters 
 belong to the owner of the land through which they percolate, 
 and he may do what he sees fit with the waters. He may take 
 the waters absolutely and appropriate them to his own use. 
 If there is an interference with percolating waters, preventing 
 them from reaching the neighboring land, that interference 
 does not give rise to a right of action. It is not a violation of 
 any legal right, so that even though the interference be due to 
 an improper motive, though it be actuated by malice, yet it 
 will not give rise to a right of action, because where there is no 
 violation of a legal right, motive is of no moment. "A party is 
 not liable for the consequence of an act done upon his own land, 
 lawful in itself, and which does not infringe upon any lawful 
 rights of another, because he was influenced in the doing of 
 it by wrong and malicious motives; the courts will not inquire 
 into the motive actuating a person in the enforcement of a 
 legal right." Phelps v. Nowlen, 72 N. Y. 39. See also Clin- 
 
320 REAL PROPERTY 
 
 ton V. Myers, 46 N. Y. 511; Barkley v. Wilcox, 86 N. Y. 
 147. 
 
 Q. A and B own adjoining lots. B has been receiving the 
 percolating waters from A's land as a supply to his (B's) well 
 for more than twenty-five years. At the end of this period A 
 sinks a well on his own land, the effect of which is to cut off the 
 percolations which supply B's well. B brings action against 
 A to prevent him from cutting off the percolations. Can he do 
 so? Answer fully. 
 
 A. No. B has no prescriptive right to the percolations. In 
 order to have a prescriptive right there must be an act done 
 which is the violation of a right in the other, and this violation 
 must continue for twenty years; a wrong which by a con- 
 tinuance thereof for twenty years can ripen into a right. There 
 is nothing in these cases that can give rise to a prescriptive 
 right, because the act of the owner of the land to which the 
 percolating waters come, at no time is a violation of a right in 
 the other, to which the other may be said to assent impliedly; 
 so that a right to have percolating waters come to one's land 
 cannot be acquired by simple continuance of the use of such 
 waters for the period of twenty years. The fact that the owner 
 of the land through which the waters percolate, who, by reason 
 of his ownership in the land has title to those waters, has taken 
 no steps to prevent the water percolating, does not deprive 
 him of the right to those waters. Bloodgood v. Ayres, 108 
 N. Y. 400; Covert v. Crawford, 141 N. Y. 525. 
 
 Q. A is the owner of certain land through which certain 
 waters flow to the X stream. This stream is used by the city of 
 Buffalo as a reservoir. He digs a ditch which cuts off the sup- 
 ply of the water. The city brings action against him to re- 
 strain his act. Judgment for whom and why? 
 
 A. Judgment for the city. "Whatever may be the rule in 
 respect to a landowner to use the water percolating through the 
 earth and thereby to affect the sources of wells and springs upon 
 his neighbor's land, he may not divert and diminish the natural 
 
REAL PROPERTY 321 
 
 flow of a surface stream by preventing its usual and natural 
 supply, or by causing through suction or otherwise a subsidence 
 of its waters." Smith v. City of Brooklyn, 160 N. Y. 357; 
 Van Wycklin v. City of Brooklyn, 118 N. Y. 424; Cobick v. 
 Swinburne, 105 N. Y. 503. 
 
 Q. A and B are adjoining owners. There are two springs on 
 A's land, one of which A uses for his own water supply, and for a 
 valuable consideration accompanied by covenants of warranty, 
 he grants to B the right to use the other spring. B lays pipes 
 in order to conduct the water to his own house for his domestic 
 use. Subsequently A's spring dries up and he sinks a well near 
 the spring granted to B, thus cutting off its source and supply 
 and rendering it worthless. B brings action against him. Can 
 he recover? 
 
 A. No. "A limited and specific grant of the right to dig and 
 stone up a certain spring and conduct the water therefrom 
 through the grantor's land by pipes to the grantee's house, with 
 covenants of warranty, does not render the entire premises 
 servient to the easement; and the grantor may lawfully sink 
 another spring, although the effect is to render the first one 
 useless." Bliss v. Greely, 45 N. Y. 671. 
 
 (Note.) In Johnston Cheese Mfg. Co. v. Veghte, 69 N. Y. 16, it was said: 
 "But there was no grant in that case (Bliss v. Greely, supra) of any particular 
 supply of water from the spring or from the defendant's land. The grant 
 was merely of the right to the spring and secured the plaintiff no greater 
 rights than such as he would have had if he would have owned the land upon 
 which it was situated. In this case the grant was of the use of the water 
 which at the time of the grant was being conducted from the spring, and 
 the intent was to secure the continuance of the supply of water, it being 
 essential to the operation of the cheese factory conveyed." 
 
 Q. A gives B permission to open a road on A's farm. B 
 immediately fenced in the way and spent considerable money 
 thereon in grading and making it an appropriate way to his 
 farm. B has exclusive and unrestricted use thereof as a road to 
 his farm for thirty years. Then A barred up the way with 
 gates and fences and prevented B from using the road in any 
 21 
 
322 Real property 
 
 way thereafter. B brings action to restrain him. Can he 
 succeed? What principle of law is involved? 
 
 A. B cannot maintain the action, as the permission given was 
 a mere license and so revocable at any time at A's pleasure. 
 The distinction must be drawn between an easement and a 
 license. An easement is an interest in land, an incorporeal 
 hereditament created by grant or prescription; it gives rise 
 to an estate in the land and is therefore irrevocable. A license 
 does not give the licensee any estate or interest in the land; 
 it is a mere permit to do something on the land, and may be 
 revoked by the Ucensor at any time, even though it has been 
 used for longer than the period necessary for the acquiring of a 
 prescriptive right, for there is never a violation of a right in the 
 licensor, it being by his permission, and so no prescriptive right 
 arises. Licenses may be given by parol, easements can only be 
 created by deed or may arise by twenty years' adverse user. 
 A mere license is not made irrevocable by the fact that a valua- 
 ble consideration was paid therefor. Wiseman v. Luckinger, 
 84 N. Y. 31; Cronkhite v. Cronkhite, 94 N. Y. 323. "There 
 can be no equitable estoppel which will operate to prevent the 
 revocation of a license, grounded upon the fact that the Ucensee 
 has entered upon the land and expended labor and money upon 
 the faith of the license. It seems that an easement to do some 
 act of a permanent nature upon the lands of another cannot be 
 created by a license even when in writing executed upon a good 
 consideration; it can only be created by a deed or conveyance 
 operating as a grant." Peckham, J., in White v. Manhattan 
 R. R. Co., 139 N. Y. 19. 
 
 Q. A granted to B, by deed, a certain private way across his 
 (A's) land. Having become angry at B, A thereupon obstructed 
 the road so that it was impossible for B to pass over it. B 
 thereafter removed certain fences in A's adjoining farm so as to 
 be able to pass on A's land around said obstruction. A starts 
 suit against B for trespass. Can he succeed? 
 
 A. Yes. "The grantee of a private way, which has become 
 
REAL PBOPEKTY 323 
 
 foundrious and impassable, cannot, without being a trespasser, 
 go on the adjoining close, and thus pass around the obstruction. 
 The rule is the same, where the owner of the close through which 
 the private way passes, caused the obstruction. The only 
 remedy for the owner of the way is to remove the obstruction 
 and to prosecute for damages." Williams v. Safford, 7 Barb. 
 310; Fowler v. Lansing, 9 Johns. 349; McMillan v. Cronin, 
 75 N. Y. 477. 
 
 Q. A conveyed by warranty deed to B, ten acres of land sur- 
 rounded on three sides by his remaining land and on the other 
 side by the land of C, so that B has no way in getting to and 
 from his ten acres except to cross A's or C's land. Afterwards 
 B buys C's tract from him and has easy access to the road; he, 
 however, claims a right of way over A's land. What ars the 
 rights and obligations of the parties? Give your reasons in full. 
 
 A. When B bought A's land he acquired a right of way over 
 A's land by way of necessity. This way of necessity ceased 
 when B bought C's tract and acquired an access to the road, 
 because when the necessity ceases the easement also ceases. 
 For a full discussion of easements by necessity, see N. Y. Ins. 
 Co. V. Milner, 1 Barb. Chan. 352; Palmer v. Pahner, 150 N. Y. 
 146. 
 
 Q. A owns the X farm and the Y farm adjoining. He builds a 
 road through the Y farm to the X farm and uses it for thirty 
 years. A then sells to B the X farm with all easements, and the 
 Y farm to C subject to all easements, C seeks to close the way 
 across the Y farm. B comes to you for advice. What are his 
 rights? 
 
 A. B can prevent the closing of the way as he has an ease- 
 ment. "The owner of real property has during his ownership 
 entire dominion and control over its natural qualities and may 
 dispose of and arrange them at will. He may alter the natural 
 dispositions of those quaUties, so as essentially to change the 
 relative value of the different parts, and may in a great variety 
 of ways, make one portion of the premises subservient to an- 
 
324 EEAL PROPERTY 
 
 other. No easement exists so long as there is a unity of owner- 
 ship, because the owner of the whole may at any time rearrange 
 the qualities of the several parts. But the moment a severance 
 occurs by the sale of a part, the right of the owner to redistrib- 
 ute the properties of the respective portions ceases; and ease- 
 ments or servitudes are created corresponding to the benefits 
 and burdens mutually existing at the time of the sale." Selden, 
 J., in Lampman v. Milks, 21 N. Y. 505. See also Simmons v. 
 Cloonan, 47 N. Y. 3; Beardslee v. New Berlin L & P. Co., 207 
 N. Y. 38; Wells v. Garbutt, 132 N. Y. 430; Hill v. Bernheimer, 
 78 Misc. 472. 
 
 Q. A was the owner in fee of certain city lots situated upon 
 B Street, which was closed in 1910, in pursuance of a law passed 
 in 1908. In 1913 A sold and deeded the lots to C by the usual 
 full warranty deed, and which bounded the lots in the front of 
 B Street. The award of damages to the lots caused by the 
 closing of said Street was m^de in 1914. A and C both claimed 
 the amount of the award. Who is entitled to the award and 
 why? 
 
 A. A is entitled to the amount of the award. "The right to 
 damages for injuries to the owner of adjoining premises by 
 closing of a highway is personal and accrues and vests in the 
 owner immediately upon the closing, although not fixed and 
 ascertained until after a subsequent conveyance of the premises; 
 it does not pass with the land unless in terms embraced in the 
 deed of conveyance. Merely bounding premises by a public 
 highway for purposes of description in a conveyance made 
 after the road has been actually closed, does not expose the 
 grantor to the equities of an estoppel." King v. City of N. Y., 
 102 N. Y. 172. This rule is well settled and has been followed 
 in Harrison v. Kingston Realty Co., 116 App, Div. 704; Matter 
 of Hamilton Street, 144 App. Div. 702; Matter of 151st Street, 
 149 App, Div. 64. 
 
 Q. A and B are tenants in common of a tract of land over 
 which a stream of water flows. B individually owns land fur- 
 
REAL PROPERTY 325 
 
 ther down the stream upon which there is a mill. B without 
 A's consent dams the stream, thus making it overflow the lands 
 owned in common by A and B. This is continued for a period 
 of twenty-five years, during which time A makes no complaint. 
 B then sells the land which he owns individually and the mill 
 thereon to X, with the privilege of operating the mill and using 
 the dam in the same way as used by him. Subsequently A and 
 B together sell their lot, which they hold as tenants in common, 
 to Y. Y brings an action against X for flooding his land. X 
 sets up a prescriptive right. Is this defense good? 
 
 A. The defense is not good. "One tenant in common can- 
 not by his sole act create an easement in the premises held in 
 common. Nor can a tenant in common, who holds other prem- 
 ises in severalty, so use the last as to acquire or exercise for the 
 benefit thereof an easement in the property held in common, 
 and he cannot by grant or operation of an estoppel or other- 
 wise, confer upon another rights and privileges which he does 
 not himself possess." Crippen v. Morse, 49 N. Y. 63; City 
 Club V. McGeer, 198 N. Y. 165. 
 
 Q. Plaintiff leased to the defendant a house for the term of 
 one year, rent payable at the end of the term. Defendant took 
 possession. The plaintiff against the protests of the defendant 
 removed the defendant's property into a wing and prevented 
 the defendant from having access to the main building. The 
 defendant occupied the wing during the term, when the plain- 
 tiff demanded the proportionate rent which the defendant re- 
 fused to pay. Plaintiff sues upon a quantum meruit. De- 
 fendant sets up the facts. Plaintiff demurs. For whom should 
 judgment be rendered? 
 
 A. Judgment for the defendant. "Where the landlord dur- 
 ing the continuance of the lease evicts a tenant from a part of the 
 premises, the tenant is reUeved during the continuance of such 
 eviction from the payment of any portion of the rent. The 
 tenant under such circumstances is not bound to vacate the 
 premises, and is entitled to refuse payment of the rent until 
 
326 tlEAL PROPERTY 
 
 possession of the whole of the demised premises is restored. 
 The landlord cannot only not recover the rent as rent, but can- 
 not even recover the value of the portion of the premises which 
 the tenant still enjoys, by means of an action for use and occupa- 
 tio n." Ca rter v. Byron, 49 Hun, 299; Stern v. Brauer, 62 App r 
 Tg^-^^Sfr; fflrpy v. Braems, 65 App. Div. 472. 
 
 Q. An attorney rented an office in a building; during his oc- 
 cupancy the owner rents the adjoining room to printers. The 
 noise of the presses is such that the lawyer cannot work at all, 
 and each day the noise drives him from his office. He remains 
 until his lease expires, and in an action for rent he sets up the 
 defense of eviction. Judgment for whom? 
 
 A. Judgment for the landlord. There was no constructive 
 eviction, for the essential element of a constructive eviction is 
 abandonment of the possession of the premises. There can be 
 no constructive eviction, save where the tenant has actually 
 abandoned the premises. Boreel v. Lawton, 90 N. Y. 293; T. 
 H. E. Co. V. Durant, 144 N. Y. 44. 
 
 (Note on Eviction.) Eviction is either actual or constnictive. There is 
 an actual eviction of the tenant whenever he is actually ousted of possession 
 of the premises or a part thereof, either by a stranger who claims by a title 
 paramount to that of his lessor or by an act of his lessor. If the lands de- 
 mised be recovered by a third person under a superior title, there is an actual 
 eviction and the tenant is discharged from liabihty for the payment of rent 
 after the ousting. When there is an eviction as to part of the lands by a 
 stranger under a claim of paramount title, the result of this eviction is to 
 discharge so much of the rent as is in proportion to the value of the land 
 from which the tenant is evicted. If the lessor himself expels the tenant 
 absolutely from the premises, the tenant of course is relieved from the neces- 
 sity of paying rent. And as we have already seen, where the tenant is actually 
 ousted from a part of the premises by his lessor, he is relieved absolutely 
 from the payment of the whole rent. Christopher v. Austin, 11 N. Y. 216; 
 Johnson v. Oppenheim, 12 Abb. Pr. (N. S.) 449; Lawrence v. French, 25 
 Wend. 443; Dyett v. Pendleton, 8 Cowen, 727; Home Life Ins. Co. v. Sher- 
 man, 46 N. Y. 370; Tallman v. Murphy, 120 N. Y. 345. 
 
 Q. A landlord leases premises to a tenant for one year, rent 
 payable monthly. The tenant goes into possession, and after 
 
REAL PROPERTY 327 
 
 six months, the landlord causes a nuisance to exist on the prem- 
 ises which renders them untenantable. The tenant ceases to 
 pay rent after the beginning of the nuisance, but stays in pos- 
 session until the end of the year, when the landlord sues him 
 for the unpaid rent. At the trial the attorney for the tenant 
 requests the court to charge the jury as follows: 1. That to 
 create an eviction it was not necessary for the tenant to sur- 
 render the premises. 2. That the landlord cannot recover 
 rent which accrued after the creation of the nuisance. 3. That 
 even if the landlord can recover such subsequent rent, the ten- 
 ant has a counterclaim for damages against the landlord. If 
 you were the judge, how would you charge the jury on each of 
 these propositions? 
 
 A. The judge should refuse to charge each request. 1. CoiT- 
 structive eviction results whenever the lessor by his own act, 
 or by his own procurement, renders the enjoyment of the prem- 
 ises demised impossible, or diminishes the enjoyment of the 
 premises to a material extent. But it is absolutely essential, in 
 order to have a constructive eviction, that the tenant should 
 abandon the premises. 2. If the tenant remains in possession 
 he has no defense to an action for rent which accrued after the 
 creation of the nuisance. 3. In the absence of a covenant to 
 repair, or a covenant of quiet enjojmaent, the tenant cannot, in 
 an action for rent brought by the landlord, set up as a counter- 
 claim, the damages caused by the neglect of the landlord in 
 permitting a nuisance to exist on the premises. Edgerton v. 
 Page, 20 N. Y. 281; Romaine v. Brewster, 10 Misc. 120; Don- 
 ovan V. Koehler, 119 App. Div. 51. 
 
 Q. A leases certam premises to B for the term of one year. 
 The tenant (B) goes into possession and after six months va- 
 cates said premises. The landlord then rents the premises to 
 C. The landlord then brings an action against B on the lease 
 for rent. If you were B's attorney what defense would you 
 set up? 
 
 A. The landlord's taking possession of the premises after 
 the surrender and reletting the premises to another constituted 
 
328 REAL PROPERTY 
 
 an acceptance of the surrender. And the acceptance by a 
 landlord of the surrender of leased premises will prevent the 
 recovery of rent thereafter accruing. Hall v. Gould, 13 N. Y. 
 127; Morgan v. Smith, 70 N. Y. 537. If the landlord refuses 
 to accept the surrender and notifies the tenant that he will 
 hold him for the rent, and states that he will lease the premises 
 for the tenant's benefit, and the tenant having expressly or 
 impliedly assented to such leasing or renting to another, then 
 it is held that the landlord is entitled to recover the rent 
 stipulated less the sum received from the new tenant, on the 
 ground that in such cases there is no acceptance of surrender 
 and the premises are leased on the original tenant's account, 
 the tenant having assented to the arrangement. Underhill 
 V. Collins, 132 N. Y. 269; Gray v. Dairy Co., 162 N. Y. 388. 
 
 Q. A certain lease expires on May 1, 1912. On that day, 
 the tenant's wife is so sick that the doctor forbids her removal. 
 On May 3, 1912, the wife is able to be removed, and the tenant 
 quits the premises. The landlord consults you as to his rights, 
 if any, against the tenant. What advice would you give 
 him? 
 
 A. The landlord cannot treat the unavoidable holding over 
 as a renewal of the lease for another year; sickness is an excuse 
 for so holding over. While the rule giving the landlord the 
 right to treat the tenant who holds over as a tenant for a new 
 term from year to year is very strict, it is not every holding 
 over that creates such a term at the option of the landlord. 
 A holding over because of death or extreme sickness at the time 
 the lease expires, is not such a holding over as creates a new 
 lease. Herter v. Mullen, 159 N. Y. 28; Stewart v, Briggs, 147 
 N. Y. 387. A tenant who holds over after the expiration of a 
 definite term of a year or years may be treated by his landlord 
 as a trespasser or as a tenant from year to year. The right of 
 the landlord to treat the holdover as a tenant for a new term 
 does not spring from the contract of the parties but is the 
 penalty imposed by law upon the trespassing tenant. U. M. R. 
 & D. Co. V. Roth, 193 N. Y. 570. 
 
reaij property 329 
 
 Q. A, by written lease, in which there is no covenant to re- 
 pair, rents certain property to B. During the tenancy, the roof 
 leaks so as to render the upper story of the house uninhabitable. 
 Who must make the repairs? 
 
 A, In the absence of a covenant in the lease to that effect, 
 the landlord is never bound to repair; that duty rests upon the 
 tenant, for he is absolutely in possession of the premises. 
 Hallett V. Wylie, 3 Johns. 44; Graves v. Berdan, 26 N. Y. 498; 
 Suydan v. Jackson, 54 N,. Y. 450. 
 
 Q. A certain tenant is in possession of a certain dwelling 
 house under a lease which has about four years to run. The 
 house is damaged by fire and thereby becomes untenantable. 
 The tenant wishes to know his right to surrender the prem- 
 ises because of said fire and his liability for the payment of 
 rent for the time subsequent to the surrender. Give your 
 advice and state the rule. 
 
 A. The tenant where the injury or destruction occurred 
 without his fault or neglect may surrender possession of the 
 premises without being liable for the subsequent rent, provided 
 that no express agreement to the contrary has been made in 
 writing. Of course the rent before the injury or destruction 
 of the premises must be paid by the tenant. This is provided 
 for by sec. 227 of the Real Property Law (chap. 52, Laws 
 1909). N. Y. Co. V. Motley, 143 N. Y. 156; May v. Gillis, 
 169 N. Y. 330; Lehmeyer v. Moses, 67 App. Div. 531, aff'd 
 in 174 N. Y. 518, The accrued rent must be paid; see Craig 
 V. Butler, 83 Hun, 286, aff'd in 156 N. Y. 672. 
 
 Q. A leases the Royal Hotel to B for three years. There 
 are no covenants in the lease as to who is to make the repairs. 
 In the first year the water pipes of the hotel burst and B was 
 unable to procure a sufficient amount of water for the purposes 
 of his business. B remains in possession, but refuses to pay his 
 rent. The landlord brings an action to recover the rent, and 
 B defends on the ground that the premises were untenantable. 
 Judgment for whom and why? State your reasons. 
 
330 REAL PROPERTY 
 
 A. Judgment for the landlord. "An answer interposed in 
 an action brought to recover the rent of a hotel, alleging that 
 the demised premises became untenantable because the water 
 pipes of the hotel burst and the water supply failed, but not 
 alleging that the landlord had covenanted to make repairs 
 to the demised premises, does not present a defense. The pro- 
 visions of the law relieving the tenant from the payment of 
 rent of a building, which without fault or negligence on his 
 part shall have been destroyed or injured by the elements 
 or other cause as to be untenantable, have reference to a de- 
 struction or injiu*y resulting from sudden and unexpected 
 action of the elements or other cause, and not to a gradual de- 
 terioration and decay, produced by the ordinary action of the 
 elements. A tenant even in a case coming within the statute, 
 is not discharged from the obligation to pay rent unless he sur- 
 renders up the possession of the demised premises." Lansing 
 V. Thompson, 8 App. Div. 54; Smith v. Herr, 108 N. Y. 31; 
 Franklin v. Brown, 118 N. Y. 110; Sherman v. Ludin, 79 App. 
 Div. 37. 
 
 Q. A leases to B certain premises for the storage of goods. 
 In the lease there is a covenant to the effect that the landlord 
 will make all necessary repairs. By reason of the defective 
 condition of the roof which B had informed A of, the water 
 leaked through causing great damage to B. B, however, had 
 an opportunity to remove the goods but did not do so relying 
 on the covenant of the landlord to repair. B brings action 
 against A to recover the damages sustained. Conceding the 
 above facts as stated, who should have judgment and why? 
 
 A. Judgment for A. "A lessee knowing that property left 
 upon the demised premises will be exposed to injury in conse- 
 quence of the lessor's failure to repair, has no right to take the 
 hazard, and if he does, and his property is injured, he cannot 
 recover damages from his lessor therefor." Huber v. Ryan, 
 57 App. Div. 34. 
 
 Q. A holds an estate for life, and B the remainder in fee. 
 The city makes an assessment on the property for certain local 
 
REAL PROPERTY 331 
 
 improvements. A refuses to pay the same, claiming that the 
 duty to do so is upon B, the remainder-man. What are the 
 rights of the parties? 
 
 A. It is well settled that the duty of paying all current taxes 
 as they accrue is entirely upon the life tenant, and he cannot 
 look to the remainder-man for contribution; if the life tenant 
 neglects to pay the taxes, the remainder-man is entitled to pro- 
 ceed against him for the appointment of a receiver to collect 
 the rents and make payment of the taxes. Seidenberg v. Ely, 
 90 N, Y. 265; Deraismes v. Deraismes, 72 N. Y. 154. A munic- 
 ipal assessment differs from a tax in this respect; that the tax is 
 a contribution for general governmental purposes, but an 
 assessment for municipal improvements is a making of com- 
 pensation for benefit received. The general rule is that the 
 municipal assessment for permanent improvements is appor- 
 tioned between the life tenant and the remainder-man, and the 
 apportionment must depend upon the circiunstances of each 
 particular case and the respective interests of life tenant and 
 remainder-man. The apportionment is usually fixed by the 
 probable duration of the life tenant's term, and this of course 
 depends upon the age of the life tenant, etc. Peck v. Sherwood, 
 56 N. Y. 615; Thomas v. Evans, 105 N. Y. 611; ChamberUn v. 
 Gleason, 163 N. Y. 214. 
 
 Q. A gave B a mortgage upon certain real estate nominally to 
 secure the payment of $10,000 on demand. This mortgage 
 was, in fact, given to secure advances thereafter to be made by 
 B under an agreement by A to erect some buildings upon the 
 mortgaged premises, the advances to be made as the buildings 
 progress, and the same to be completed within one year. If the 
 work proceeded according to the agreement no demand was to 
 be made for the mortgage debt until three months after A was 
 entitled to his last payment under the contract. When B had 
 advanced $5,000 under the contract, A abandoned it, leaving 
 the buildings imfinished, and assigned to C for the benefit of his 
 creditors. B at once brought an action to foreclose his mort- 
 gage without any demand and without waiting for the time set 
 
332 REAL PROPERTY 
 
 for the completion of the buildmg. C as the assignee of A 
 defended the action, claiming that a demand was necessary 
 before suit and that the action was prematurely brought. Who 
 should have judgment and why? 
 
 A. Judgment for B. "But the plaiatiff's agreement to 
 advance money and his promise to delay foreclosure were both 
 dependent upon the undertaking of A to erect the houses; 
 where, therefore, he repudiated the further performance of the 
 contract, the plaintiff was discharged from all obUgation to do 
 either and set at liberty to enforce his securities for the money 
 already advanced. A previous demand of payment was not 
 essential to a cause of action." Gillett v. Balcohn, 6 Barb. 370; 
 Ferris v. Spooner, 102 N. Y. 12; Union Ins. Co. v. Central 
 Trust, 157 N. Y. 633; Callanan v. R. R. Co., 131 App. Div. 318. 
 
 Q. A who is a married man purchases a certain piece of land, 
 paying $5,000 in cash and giving a mortgage for the remainder. 
 After his death the mortgage is still upon the property, and the 
 widow claims dower in the whole property. What are her 
 rights? State the rule. 
 
 A. The widow is not entitled to dower in the whole of the 
 property, but only in the amount in excess of the piu-chase 
 money mortgage. The decisions before the statute held that 
 the reason for the wife not being entitled to dower in such cases 
 is that the husband had only an instantaneous seizin in the 
 property. Cunningham v. Knight, 1 Barb. 399; Stow v. Tifft, 
 15 Johns. 458; Mills v. Van Voorhis, 20 N. Y. 412. Section 193 
 of the Real Property Law (Consolidated Laws, chap. 50) con- 
 tinues this rule, and is as follows: "Where a husband pin-chases 
 lands during the marriage, and at the same time mortgages his 
 estate in those lands to secure the payment of the purchase- 
 money, his widow is not entitled to dower of those lands, as 
 against the mortgagee or those claiming under him, although 
 she did not unite in the mortgage. She is entitled to her dower 
 as against every other person." 
 
 (Note.) Dower is an estate for life which the widow is entitled to in one- 
 
REAL PROPERTY 333 
 
 third of all the lands whereof her husband was seized at any time during the 
 coverture. The requisites necessary are: 1. A valid marriage. 2. Seisin of 
 the husband of an estate of inheritance at some time during the coverture. 
 3. Death of the husband. Wait v. Wait, 4 N. Y. 99; Durando v. Durando, 
 23 N. Y. 331; Phelps v. Phelps, 143 N. Y. 197. 
 
 Q. A and B are husband and wife. Subsequently B, the wife, 
 obtains an absolute divorce from her husband. A, the husband, 
 dies leaving certain real estate. B claims dower in the same. 
 What are her rights? Suppose A, the husband, obtained a 
 divorce for the misconduct of his wife, then would B, the wife, 
 be entitled to dower in A's real estate? 
 
 A. B is entitled to dower in the lands of A of which he was 
 seized before or at the time the decree of divorce was granted, 
 but she would not be entitled to dower if the husband had 
 obtained a divorce for her misconduct. This is provided for in 
 sec. 196 of the Real Property Law (Consolidated Laws, chap. 
 50), which says: "In case of a divorce, dissolving the marriage 
 contract for the misconduct of the wife, she shall not be en- 
 dowed." That the wife's inchoate right of dower is not affected 
 by a decree of divorce granted for the misconduct of the hus- 
 band, sec. 1759, part 4, Code of Civ. Pro., provides as follows: 
 "Where final judgment is rendered dissolving the marriage, 
 the plaintiff's inchoate right of dower in any real property of 
 which the defendant then is or was theretofore seized, is not 
 affected by the judgment." Van Cleaf v. Burns, 133 N. Y. 
 540. 
 
 Q. A secures an absolute divorce from B, her husband, for 
 his misconduct. He subsequently purchases real estate and 
 dies intestate. A claims dower in the land. What are her 
 rights? 
 
 A. She is not entitled to dower. A divorced wife is not en- 
 titled to dower in the realty of her husband acquired after the 
 divorce, for at that time the relation of husband and wife no 
 longer exists between them. Kade v. Lauber, 16 Abb. Pr. 
 (N. S.) 288; Matter of Ensign, 103 N. Y. 288. 
 
334 EBAL PROPERTY 
 
 Q. If an estate is conveyed to John Brown and Jane, his 
 wife, how do they hold it? 
 
 A. They hold it as tenants by the entirety. The estate by 
 the entirety still exists; it was not abolished by the Married 
 Women's Acts. The effect of those acts is to give to the hus- 
 band and wife each a moiety of the rents and profits of the land 
 during their joint lives. A grant to two and their heirs at com- 
 mon law would have vested in these two a joint estate without 
 any words to that effect. The statute, however, now provides 
 that such a grant shall vest in the grantees an estate in common, 
 and in order to create a joint estate, you must have express 
 words to that effect. The statute simply applies to joint 
 estates proper, and does not apply to estates by the entirety. 
 The result is that the grant to a husband and wife, without any 
 words of exception, vests in them after the statute as before an 
 estate by the entirety; but the statute modifies the common- 
 law rule in this, that the husband and wife each take a moiety 
 of the rents and profits during their joint lives, and the husband 
 is not, as theretofore, entitled to the entire rents and profits of 
 the land. Bertles v. Numan, 92 N. Y. 152; Zomtlein v. Bram, 
 100 N. Y. 12; Grosser v. City of Rochester, 148 N. Y. 235; 
 Banzer v. Banzer, 156 N. Y. 436. 
 
 Q. A husband and wife hold an estate in lands by the en- 
 tirety. The husband afterwards secures a divorce and re- 
 marries. He then dies intestate. What are the rights of the 
 parties? State your reasons. 
 
 A. The divorce converts the tenancy by the entirety into a 
 tenancy in common. The first wife therefore holds an un- 
 divided half in fee simple; the second wife has dower in the 
 husband's one-half interest. "As such tenancy is founded 
 upon the marital relation, and upon the legal theory that the 
 husband and wife are one, it depends for its continuance on 
 the continuance of the relation, and when the unity is broken 
 by a divorce, the tenancy is severed; each takes a propor- 
 tionate share of the property as a tenant in common. There 
 
REAL PROPERTY 335 
 
 is no implied condition annexed to the estate by the entirety 
 that the grantees shall remain faithful to the marriage vow, 
 or that either shall not by misconduct cause a severance of the 
 marital relation, and a decree of divorce granted because of 
 adultery, does not vest the whole title in the ionocent party." 
 Peckham, J., in Stelz v. Shreck, 128 N. Y. 263. 
 
 Q. A and B, who are husband and wife, hold an estate as ten- 
 ants by the entirety. A, the husband, executes a mortgage on 
 the land. The mortgage is foreclosed, and C purchases the 
 property at the foreclosure sale. What interest and rights 
 does he acquire? 
 
 A. In Hiles v. Fisher, 144 N. Y. 306, it was held: "Where a 
 husband executed a mortgage on lands deeded to him and his 
 wife, that the mortgage was effectual to cover his interest, 
 which was a right to the use of an undivided half of the estate 
 during their joint lives, and to the fee in case he survived her, 
 and that the pm-chaser on the sale under foreclosure of the 
 mortgage acquired this interest and became a tenant in common 
 with the wife, subject to her right of sm^vorship. The grand 
 characteristic which distinguishes a tenancy by the entirety 
 from a joint tenancy is its inseverability, whereby neither hus- 
 band nor wife, without the assent of the other, can dispose of 
 any right of the estate, so as to affect the right of survivorship 
 in the other." 
 
 (Note.) "Under a deed made since the enabling act to a husband and 
 wife, which provides in express terms that they should take as joint tenants 
 and not as tenants in common, the wife takes and holds as a joint tenant 
 with her husband, and not as a tenant by the entirety." Joos v. Fey, 129 
 N. Y. 362. It also appears that by proper words in the conveyance express- 
 ing such intention, a husband and wife may take as tenants in common. 
 Miner v. Brown, 133 N. Y. 308. 
 
 Q. A, the wife of B, takes an undivided one-half interest in 
 '.certain real estate by descent. B subsequently purchases the 
 remainder. A, the wife, dies leaving one child, and B claims 
 the estate as survivor. What are the rights of the par- 
 ties? 
 
336 HEAL PROPERTY 
 
 A. B is not entitled to the whole estate as survivor, for the 
 estate was not held by them as tenants by the entirety, not 
 being created by the same deed. They hold as tenants in com- 
 mon, and there is no incident of survivorship annexed to that 
 estate; on the death of either tenant, his undivided half descends 
 to his heirs. If there were an estate by the entirety here, the 
 entire estate would go to the survivor just as in joint tenancies. 
 The wife, having died intestate, the husband is entitled to 
 curtesy, a life estate in her undivided half of the land, and the 
 child to the remainder in fee. The estate of curtesy at the 
 death has not been abolished. It, however, obtains only where 
 the wife chooses to die intestate. She can bar the right by deed 
 or will. "The common-law rights of a husband as a tenant by 
 the curtesy are not affected by the acts of 1848 for the more 
 effectual protection of the property of married women as to 
 the real property of the wife undisposed of at her death." Hat- 
 field V. Sneden, 54 N. Y. 280. And the recent statutes have 
 worked no change in the estate by the cxirtesy. Matter of 
 Starbuck, 137 App. Div. 866. The essentials of an estate by 
 the curtesy are: 1. A lawful marriage. 2. Seisin by the wife 
 of an estate of inheritance during the coverture. 3 Issue born 
 alive capable of inheriting the estate. 4. The death of the wife. 
 It will be noticed that an estate by the curtesy is an estate for 
 life in all the lands of the wife, while dower is merely a life in- 
 terest in one-third of all the lands of the husband. 
 
 Q. A and B are husband and wife. They have a child C, 
 which dies at the age of six years. After the death of the child, 
 the wife becomes seized in fee of a piece of real estate and dies 
 intestate, leaving a brother as her only heir at law. What in- 
 terest in the estate are the husband and brother respectively 
 entitled to? 
 
 A. The husband is entitled to a life estate in the property, 
 the brother to the remainder in fee. The husband is entitled 
 to a life estate (curtesy) as there was a child born alive capable 
 of inheriting the estate; it matters not that the child died be- 
 fore the wife became seized. All the other elements of the es- 
 
REAL PROPERTY 337 
 
 tate by the curtesy are also present; seisin by the wife of an 
 estate of inheritance, and death of the wife intestate. Leach 
 V. Leach, 21 Hun, 381 ; Jackson v. Johnson, 5 Cowen, 75; Beard- 
 sley V. Hotchkiss, 30 Hun, 615. 
 
 Q. A duly conveyed a life interest in certain real estate to B, 
 his wife, and the remainder to C, his daughter subject to B's 
 life interest. C had a husband D, and a child was born of their 
 marriage. C who never had actual possession of the property 
 died before B who had the actual possession thereof. After 
 the death of C, her husband, D, brought an action against B to 
 recover possession of the property. Judgment for whom and 
 why? 
 
 A. Judgment for B, as C never had been seized of the prem- 
 ises. "It does not appear that the wife was ever in actual 
 possession of the property, since the life tenant survived her, 
 and it is assumed that the wife was never in actual possession 
 of the property. The wife died before the termination of the life 
 estate, and hence the only interest that she ever had in the land 
 was an estate in remainder. We think that the appeal cannot 
 be sustained, since actual seisin in the wife is necessary in order 
 to vest the husband with the estate in curtesy." O'Brien, J., 
 m Collins v. Russell, 184 N. Y. 76. 
 
 Q. A contracts with B to sell the latter a house and lot. A 
 received title from his wife by means of a quitclaim deed. The 
 wife had a good right to convey the same. A offered his sole 
 deed to B, who comes to you. What would you advise him? 
 
 A. B has a right to refuse to take the property; his wife must 
 join in the deed. "A release of dower by the wife directly to 
 her husband will not divest her dower, so as to enable the hus- 
 to convey good title by his sole deed. If effectual at all on de- 
 livery of such release, the husband becomes the owner of the 
 property and the wife becomes entitled to dower therein." 
 Wightman v. Schliefer, 45 N. Y. St. Rep. 698. 
 
 (Note.) "By virtue of the statute which permits husband and wife to 
 22 
 
338 REAL PROPERTY' 
 
 convey directly to each other without the intervention of a third person, a 
 husband may convey directly to his wife his interest in lands of which they 
 are seized as tenants by the entirety. After a subsequent conveyance by 
 a warranty deed of a wife so invested with the whole title, both she and 
 her husband are estopped by their deeds from questioning the title of the 
 grantee." Hardwick v. Salzi, 46 Misc. 1; Mardt v. Scharmach, 65 Misc. 
 125; Meeker v. Wright, 76 N. Y. 262. 
 
 Q. A description reads as follows: Commencing at the corner 
 of A street and B street, running thence along B street twenty- 
 five chains, thence one hundred chains parallel with A street 
 to a hemlock tree; thence along the margin of A. street to the 
 beginning. The measurements show that the one hundred 
 chain coiu-se is twenty-five chains short of reaching the hemlock 
 tree. Who is entitled to the twenty-five chains, grantor or 
 grantee? Give reasons. 
 
 A. The grantee. Boundaries by fixed objects or monuments 
 must control over measurements, upon the presumption thaA 
 all grants are made with reference to an actual view of the 
 premises by the parties thereto. The rule is well settled that 
 where there is an uncertainty as to the plot of land intended to 
 be conveyed, arising out of differences between the land de- 
 scribed by metes and bounds, and that embraced in lines ex- 
 tending to natural or artificial monuments or objects mentioned 
 in the deed, that the former shall give way, as being less certain, 
 and be controlled by the latter description. Raynor v. Timer- 
 son, 46 Barb. 518; Wendell v. People, 8 Wend. 183; Yates v. 
 Vandebogert, 56 N. Y, 531; People ex rel. v. Jones, 112 N. Y. 
 604. 
 
 Q. A was the owner of a tract of land consisting of two hun- 
 dred acres through which ran a public highway, north and 
 south, and included in the two hundred acres; the said high- 
 way divided the tract of land in two equal parts. A granted 
 to B all of the land lying east of the highway and to C he granted 
 all of the land west of the highway. Question has arisen whether 
 B or C is the owner of the highway mentioned. What do you 
 say? 
 
REAL PROPERTY 339 
 
 A. The highway belongs to both B and C, as a conveyance 
 of land bounded upon a highway carries the title to the center 
 thereof. "It may be considered as the general rule, that a 
 grant of land bounded upon a highway carries the fee in the 
 highway to the center of it, provided the grantor at the time 
 owned to the center and there be no words or specific descrip- 
 tion to show a contrary intent." 3 Kent's Commentaries, 433. 
 And this continues to be the rule. White v. Nichols, 64 N. Y. 
 65; Haberman v. Baker, 128 N. Y. 253; Johnson v. Grenell, 
 188 N. Y. 410. The rule also applies to devises. 
 
 Q. A owns property abutting on a nonnavigable stream. He 
 conveys the land to B. To how much, if any, of the stream 
 does B get title? 
 
 A. In the absence of restrictions in express words or other 
 facts indicating a contrary intent, a deed of lands bounded upon 
 an inland pond or nonnavigable fresh water stream is pre- 
 sumed to convey to the center. But the rule is otherwise where 
 the boundary is expressly made the bank of the stream, Starr 
 V. Child, 5 Denio, 599; Halsey v. McCormick, 13 N. Y. 296; 
 Gouverneur v. N. I. Co., 134 N. Y. 355; Town v. Town, 97 App. 
 Div. 7. 
 
 (Note.) "Separate devises of lands upon the east and west sides of a river 
 where the devisor owns the lands under the water thereof, in the absence of 
 any clause-limiting them to the banks of the river, carry the title to the center 
 or thread of the stream, although the river is navigable and the tide ebbs 
 and flows therein." Smith v. Bartlett, 180 N. Y. 360. 
 
 Q. A owned a house and lot and by written contract with 
 B he agreed to sell the same for $5,000. The contract contained 
 no agreement warranting the title. The house and lot were 
 subject to a mortgage for $3,000, which had been recorded and 
 was unknown to B when the contract was made. Subse- 
 quently B learned of it and that the house and lot were sold 
 on its foreclosiu-e. B then refused to perform the contract. A, 
 however, insisted that as the contract contained no express 
 warranty of the title, B was bound to pay the agreed con- 
 
340 EEAL PEOPEBTY 
 
 sideration, and brought an action against B therefor. Under 
 the facts disclosed, can A recover? 
 
 A. No. "The general rule is well settled that a vendor under 
 an executory contract for the sale of land, unless exempted by 
 the terms or nature of the contract, is boimd to convey a good 
 title, free from any essential defect, and the purchaser cannot 
 be compelled to accept a conveyance of property differing from 
 the contract in any material particular. The obligation of the 
 vendor to convey a good title exists independently of any ex- 
 press undertaking in the contract. Where not expressed, it is 
 implied from the natiu-e of the transaction. And although the 
 title rendered may in fact be good, yet if it is subject to reason- 
 able doubt depending upon the ascertainment of some material 
 fact extrinsic to the record title, to be foimd by a jury when the 
 question arises, the purchaser in general will not be required 
 to complete the purchase, for he is entitled to a title not only 
 good in fact, but marketable. Bumell v. Jackson, 9 N. Y. 
 535; Fleming v. Bimiham, 100 N. Y. 1; Moore v. Williams, 
 115 N. Y. 586. Where the vendee refuses to perform his 
 contract, or is unable to do so by reason of some defect in the 
 title affecting the substance of the thing contracted for, or 
 where the contract was induced by fraud or misrepresentation, 
 the vendee may treat the contract as rescinded and recover back 
 any deposit made on account of the pm-chase money and the 
 necessary expenses to which he has been put preliminary to 
 the completion of the contract on his part." Lawrence v. 
 Taylor, 5 Hill, 114; Garves v. White, 87 N. Y. 463; Blauck v. 
 Sadlier, 153 N. Y. 551, 556. 
 
 Q. A sold a farm to B for $10,000. B does not record his 
 deed but goes into actual possession. Afterwards A sells the 
 farm to C for $8,000, C records his deed. Who owns the prop- 
 erty? 
 
 A. B owns the property, having been in actual possession of 
 the same at the time of the conveyance to C. Such actual 
 possession is equivalent to notice of the unrecorded deed. 
 
REAL PROPERTY 341 
 
 "One who seeks to establish a right in hostility to a recorded 
 title or to security upon land by virtue of an unrecorded con- 
 veyance, must show actual notice to a purchaser of his rights 
 or circumstances which will put a prudent man on his guard. 
 Constructive notice will not suffice." Brown v. Volkening, 
 64 N. Y. 76. "The possession which will constitute construc- 
 tive notice of an unrecorded deed to a subsequent purchaser 
 must be under the deed, an actual, open and visible one, so 
 that the subsequent purchaser could have gone upon the land 
 and obtained by inquiry information." Page v. Waring, 76 
 N. Y. 463. 
 
 (Note.) A subsequent recorded instrument in order to take precedence 
 over a prior unrecorded instrument, must be one recorded by a bona fide 
 purchaser. A docketed judgment will not take precedence over a prior un- 
 recorded instrument as a mortgage, and also a recorded mortgage given for 
 a past debt will not take precedence over a prior unrecorded mortgage or 
 unrecorded conveyance. See Howells v. Howells, 160 N. Y. 308. See also 
 sec. 291 of the Real Property Law (Consolidated Laws, chap. 50) . 
 
 Q. A leases certain premises from May 1, 1914, to B. The 
 lease being in writing and was made on January 1, 1914, and 
 was to continue for two years. When May 1 came, B wanted 
 to take possession of the said premises but could not do so as 
 C, the former tenant, claiming to have the right to remain in 
 the said premises, refused to vacate. B then began an action 
 against A to recover the return of the deposit which he gave on 
 the lease. Can he do so? 
 
 A. No. A did not undertake to put B in possession of the 
 premises. He only leased them to him. B could have begun 
 summary proceedings to remove C from the possession. Gard- 
 ner V. Ketteltas, 3 Hill, 330; Goerl v. Damrauer, 27 Misc. 555. 
 "It was not incimibent upon the lessor to put the lessees into 
 actual possession. All that was incumbent upon the landlord 
 was to put the tenant in legal possession, that is, to see to it 
 that no one else had a superior right of possession, so that no 
 obstacle would be interposed to the tenants obtaining actual 
 possession. For all that appears in this case the persons in 
 possession of the property on the date of the term of the lease 
 
342 BEAL PROPERTY 
 
 was to commence were holding over after the expiration of some 
 lease or letting, and therefore were strangers and liable to 
 summary dispossession." Mirsky v. Horowitz, 46 Misc. 258; 
 Smith V. Barber, 96 App. Div. 236. 
 
 Q. A had the record title and claimed to be the owner in fee 
 of certain lands. B at the same time was in actual possession 
 of the land claiming under a title adversely to A. C, who knew 
 of the facts, for a good and valuable consideration purchased 
 by a deed of conveyance the said lands from A, and at once 
 brought a suit in ejectment against B to recover possession. 
 Who should have judgment and why? 
 
 A. Judgment for B. "A grant of real property is absolutely 
 void, unless the same shall be made to the people of the state 
 of New York, if at the time of the delivery thereof, such prop- 
 erty is in actual possession of a person claiming under a title 
 adverse to that of the grantor." This is provided for in sec. 260 
 of the Real Property Law. 
 
CHAPTER XV 
 
 Sales 
 
 Q. A agrees with B to sell him a horse for $500, payment to 
 be made at the time of delivery. Before the same can be de- 
 livered, a fire breaks out on A's farm, where the horse is being 
 kept, and the horse perishes in the flames. B sues A for non- 
 delivery. Judgment for whom? 
 
 A. Judgment for A. In order to have a sale, the thing must 
 be in existence at the time when title is to pass. "Where a 
 contract is made for the sale and delivery of specified articles of 
 personal property, under such circumstances that title does not 
 vest in the vendee, if the property is destroyed by accident, 
 without the fault of the vendor, so that delivery becomes im- 
 possible, the latter is not liable to the vendee in damages for 
 nondelivery. The contract is subject to the implied condition 
 of the continued existence of such thing." Dexter v. Norton, 
 47 N. Y. 62, a leading case followed in Kein v. Tupper, 52 
 N. Y. 550; Goldman v. Rosenberg, 116 N. Y. 78; Stewart v. 
 Stone, 127 N. Y. 500; Cameron v. City of Albany, 207 N. Y. 
 382. This rule laid down in Dexter v. Norton, supra, has been 
 substantially re-enacted in the Sales Act (Pers. Prop. Law), 
 sec. 89. (Laws 1911, chap. 571) sec. 89, is as follows : " 1. Where 
 there is a contract to sell specific goods, and subsequently, but 
 before the risk passes to the buyer, without any fault on the 
 part of the seller or the buyer, the goods wholly perish, the 
 contract is thereby avoided. 2. Where there is a contract to 
 sell specific goods, and subsequently, but before the risk passes 
 to the buyer, without any fault of the seller or the buyer, part 
 of the goods perish or the whole or a material part of the goods 
 so deteriorate in quality as to be substantially changed in 
 character, the buyer may at his option treat the contract — 
 (a) As avoided, or (&) As binding the seller to transfer the 
 
 343 
 
344 SALES 
 
 property in all of the existing goods or in so much thereof as 
 have not deteriorated, and as binding the buyer to pay the full 
 agreed price if the contract was indivisible, or to pay the agreed 
 price for so much of the goods as the seller, by the buyer's 
 option, is bound to transfer if the contract was divisible." 
 
 Q. A and B make an agreement, whereby A is to deliver to B 
 a quantity of wheat, and B is to give him one barrel of "first 
 rate superfine flour" for every four bushels of wheat so de- 
 livered. A delivers 500 bushels of wheat under the agreement 
 at B's mUl. A few days thereafter, the mill containing the 
 wheat is destroyed by fire. A demands the quantity of flour 
 which he is entitled to under the agreement, and upon B's 
 failure to deliver the same, brings suit. B sets up the destruc- 
 tion of the wheat as a defense. Judgment for whom and why? 
 
 A. Judgment for A, as the terms of the contract imported a 
 sale of the wheat; title passed and the property was at the risk 
 of B. "There is nothing in the contract, that expressly or by 
 impUcation obliged the defendants to deliver to the plaintiff 
 flour manufactured from his wheat to the exclusion of any other 
 in their possession, or which they might subsequently obtain. 
 The agreement on their part, was satisfied by the delivery of a 
 barrel of 'first rate superfine flour' for every four bushels of 
 wheat received from plaintiff, whether manufactured at their 
 mill or elsewhere, obtained by purchase or otherwise. This is a 
 controlling circimastance to show that the parties intended a 
 sale or exchange, and not a bailment. The distinction between 
 an obligation to restore the specific thing received, in the same 
 or an altered form, or of returning others of equal value in the 
 same or a different form, is the distinction between a sale and a 
 baihnent." Norton v. Woodruff, 2 N. Y. 153. See also Crosby 
 v. D. & H. Canal Co., 119 N. Y. 334; Sattler v. Hallock, 160 
 N. Y. 291; Hargreave Mills v. Gordon, 137 App. Div. 701. 
 
 Q. A rented a farm with ten cows thereon to B, with the 
 agreement that B at the termination of the lease was to leave 
 ten cows thereon of equal value. The cows died from disease. 
 On whom does the loss fall? 
 
SALES 345 
 
 A. The loss falls on B. From the terms of the agreement, the 
 same cows delivered were not to be retm-ned, but B was at 
 liberty to return others of equal value, therefore title passed 
 to him, and the cows were at his risk. Smith v. Clark, 21 
 Wend. 83; Mallory v. Wills, 4 N. Y. 76. 
 
 Q A brewer sold and dehvered 50 barrels of ale bearing his 
 brand to a retailer, upon the agreement that the barrels were 
 to be returned after the ale was drawn, but if any were not re- 
 turned, he should pay $2 a piece for them. B returns 25 of the 
 barrels, and is about to return the rest, when they are attached 
 by a creditor of his (B). The brewer claims the barrels as his. 
 What are the rights of the parties? 
 
 A. The brewer is entitled to the barrels; this is a mere bail- 
 ment, and not a sale of the barrels. In Westcot v. Thompson, 
 18 N. Y. 363, a case exactly in point, it was held that the prop- 
 erty in the barrels remained in the vendor, and that the specifi- 
 cation of the value operated not to give an election to the 
 vendee to retain them at that price, but to fix damages in re- 
 spect to such as he should be unable to return. 
 
 Q. A delivers a mare to B, with the understanding that if at 
 the end of two months B is satisfied with the mare, he (B) is to 
 have title to her on the payment of 1500. While in possession 
 of B, and through no fault of his, the mare took sick and died. 
 A brings action against B to recover the value of the mare. 
 Judgment for whom and why? 
 
 A. Judgment for B, as this was a baihnent with the privilege 
 of purchase, and not a sale. In the absence of negligence or 
 want of care on the part of the bailee, he is discharged from 
 liability, and the loss must fall upon him who has the title. 
 Where the property is delivered for the purpose of trial, with 
 the agreement that if it is satisfactory, the receiver will retain 
 it, and pay an agreed price for it, the transaction is considered 
 to be a bailment until the receiver exercises his privilege to 
 purchase; it then becomes a sale. Title does not pass until 
 exercise of the option by the receiver. Whitehead v. Vander- 
 
346 SALES 
 
 bilt, 10 Daly, 214; K. Co, v. Romero, 36 Misc. 384; Carter v. 
 Wallace, 32 Hun, 384. Section 100 of the Sales Act, Rule 3, 
 par. 2, continues this rule as follows: "When goods are delivered 
 to the buyer on approval or on trial or on satisfaction, or other 
 similar terms, the property therein passes to the buyer — 
 (a) When he signifies his approval or acceptance to the seller 
 or does any other act adopting the transaction; (6) If he does 
 not signify his approval or acceptance to the seller, but retains 
 the goods without giving notice of rejection, then if a time has 
 been fixed for the return of the goods, on the expiration of such 
 time, and if no time has been fixed, on the expiration of a 
 reasonable time. What is a reasonable time is a question of 
 fact." 
 
 Q. A sells B 500 bales of cotton, upon the agreement that if 
 the cotton is not satisfactory for the purpose of B's business, he 
 can return the same. A sends the cotton to B, who duly re- 
 ceived the same. A few days thereafter it is destroyed by fire. 
 B refuses to pay for the cotton, claiming that A must bear the 
 loss. A brings suit. Judgment for whom and why? 
 
 A. Judgment for A. "Contracts of sale made on condition 
 that the property may be returned at the option of the buyer, 
 carry the title to the buyer. The act of returning the goods is a 
 condition subsequent which may, if performed, defeat the title 
 already vested. If the right of return is not duly exercised, and 
 the property is retained, the right is forfeited and the sale be- 
 comes absolute. Where the contract prescribes the time 
 within which a return must be made, that time controls; and 
 if no time is stated, then the vendee must return the goods 
 within a reasonable time." Costello v. Herbst, 18 Misc. 176. 
 In the question put, the transaction was a sale with the priv- 
 ilege of return, and title passed to B; therefore the loss falls 
 upon him. See also Greacen v. Pohhnan, 191 N. Y. 493; 
 Levis V. Pope Motor Car Co., 202 N. Y. 402. This rule has 
 been continued by the Sales Act, sec. 100, Rule 3, par. 1, which 
 is as follows: "When goods are delivered to the buyer 'on sale 
 or return,' or on other terms indicating an intention to make a 
 present sale, but to give the buyer an option to return the goods 
 
SALES 347 
 
 instead of paying the price, the property passes to the buyer on 
 delivery, but he may revest the property in the seller by re- 
 turning or tendering the goods within the time fixed in the 
 contract, or, if no time has been fixed, within a reasonable 
 tune." 
 
 Q. B owes A certain money and gives him a chattel mort- 
 gage to secure the payment of the debt. There was a default 
 made. What steps should A take to foreclose the mortgage? 
 
 A. A chattel mortgage is a conditional sale, and title to the 
 property passes to the mortgagee on default. The mortgage 
 is foreclosed by a sale under the power of sale, which is given 
 in the instrument. The mortgage may be foreclosed by an 
 action to foreclose a hen upon a chattel under sees. 206-210, 
 inclusive, of the Lien Law (Consolidated Laws, chap. 33). 
 Foraci v. Mailer, 154 App. Div. 303. 
 
 Q. A pledges a diamond with B for the loan of $100. A 
 defaults. What proceedings should B take in realizing upon 
 the jewel? 
 
 A. Section 200 of the Lien Law, provides as follows: "A 
 lien against personal property, other than a mortgage upon 
 chattels, if in the legal possession of the lienor, may be satis- 
 fied by the public sale of such property according to the pro- 
 visions of this article." Section 201 provides: "That notice 
 of sale must be given to the pledgor." Section 202 provides: 
 "That the sale must be advertised." Sections 203 and 204 pro- 
 vide for a redemption and the disposition of the proceeds, 
 the pledgor to receive the surplus remaining after satisfying 
 the lien. Behen v. Kingsbury, 113 App. Div. 555. 
 
 Q. B, a paper manufacturer, contracts orally with A, a 
 newspaper publisher, to manufacture and deliver to him twenty 
 tons of paper in sixty days. B does not dehver the paper 
 according to the agreement, and in a suit by A, sets up the 
 Statute of Frauds as a defense. Is it good? 
 
 A. The action is not maintainable. The distinction drawn 
 between sales of goods in existence at the time of the making of 
 
348 SALES 
 
 the contract under an agreement to manufacture goods in the 
 cases before the Statute (Sewall v. Fitch, 8 Cowen, 215; 
 Parsons v. Loucks, 48 N. Y. 17) has been abolished by the 
 Sales Act, sec. 85 of the Pers. Prop. Law, and all such cases 
 are now within the Statute of Frauds. Section 85, Pers. Prop, 
 Law (new Statute of Frauds), is as follows: "1. A contract to 
 sell or a sale of any goods or choses in action of the value of 
 fifty dollars or upwards shall not be enforceable by action 
 unless the buyer shall accept part of the goods or choses in 
 action so contracted to be sold or sold, and actually receive the 
 same, or give something in earnest to bind the contract, or in 
 part payment, or unless some note or memorandum in writing 
 of the contract or sale be signed by the party to be charged or 
 his agent in that behalf. 2. The provisions of this section apply 
 to every such contract or sale, notwithstanding that the goods 
 may be intended to be delivered at some future time or may not 
 at the time of such contract or sale be actually made, procured, 
 or provided, or fit or ready for delivery, or some act may be 
 requisite for the making or completing thereof, or rendering 
 the same fit for delivery; but if the goods are to be manufactured 
 by the seller especially for the buyer and are not suitable for 
 the sale to others in the ordinary coiu-se of the seller's business, 
 the provisions of this section shall not apply. 3. There is an 
 acceptance of goods within the meaning of this section when 
 the buyer, either before or after delivery of the goods, expresses 
 by words or conduct his assent to becoming the owner of those 
 specific goods." 
 
 Q. A goes to the lumber yard of B and selects certain limiber 
 to be delivered to him at his carpenter shop. The price agreed 
 upon was $500. B also agreed to cut the lumber in certain 
 sizes. The agreement was oral. B tenders the lumber cut as 
 directed, to A, who refuses to receive the same. In an action 
 by B for the purchase price, A sets up the Statute of Frauds as 
 a defense. Is this a valid defense? 
 
 A. The defense is good, as the facts show this to be a sale 
 of merchandise for more than fifty dollars, and therefore within 
 
SALES 349 
 
 the Statute of Frauds. It is not a contract for work, labor and 
 services, as the articles were in existence at the time of the 
 order, and merely required some change to suit the buyer's 
 purposes. Cooke v. Millard, 65 N. Y. 352, a leading case, 
 which as will be seen by an examination of the new Statute of 
 Frauds (sec. 85, supra) is unaffected in so far as the decision 
 goes. Of course the distinction between contracts of manu- 
 facture and sales of goods in existence as we have seen no longer 
 exists under the new statute except that contracts to manu- 
 facture goods especially for the buyer, and not salable in the 
 ordinary course of business by the seller are not affected by the 
 statute. 
 
 Q. A hires B by oral contract to make four carriages for 
 him for $500, to be finished and delivered within six months. 
 B is to furnish the material, and do the work, the carriages to 
 be made in a way that A has directed. B does not perform. 
 What are the rights of the parties? Is the contract within the 
 Statute of Frauds? 
 
 A. This contract does not come within the Statute of Frauds, 
 as it is merely a contract to manufacture especially for the 
 buyer. A can therefore maintain the action for breach of con- 
 tract. Section 85, supra. 
 
 Q. A purchases from B several lots and styles of hats, at 
 different prices, but on the same day, amounting in all to $85, 
 the lots averaging from $10 to $15 each. The goods are to be 
 shipped by Adams Express. B delivers the goods to the ex- 
 press company. A does not take the goods on their arrival at 
 his place of business. B sues for the price. A sets up the 
 Statute of Frauds as a defense. Judgment for whom and why? 
 
 A. Judgment for A. The contract is entire, and therefore 
 within the Statute of Frauds. A delivery to a carrier specified 
 in a parol contract of sale, does not take it out of the opera- 
 tion of the statute, there must be an acceptance by the vendee 
 or by his authorized agent, and an authority to receive for 
 transportation carries with it no implied authority to accept. 
 
350 SALES 
 
 AUard v. Greasert, 61 N. Y. 1; Wilcox Co. v. Green, 72 N. Y. 
 17; Pierson v. Crooks, 115 N. Y. 539. The rule laid down in 
 these cases has not been affected by the new statute. 
 
 Q. A owning certain bonds of a realty company, sold them 
 to B in May, 1907, promising B that if at any time he, B, be- 
 came dissatisfied with the bonds, he, A, would on thirty days' 
 notice take them back and return the money B paid for them. 
 In November, 1907, the affairs of the realty company looking 
 panicky, B wrote to A that he was dissatisfied, and gave thirty 
 days' notice that he required A to take the bonds back and 
 refund the purchase price. Thereafter B tendered the bonds 
 and demanded the money paid therefor, which A refused to 
 pay. B brought action against A to recover the amount. 
 A defended on the ground that the contract not being in writing 
 was void under the Statute of Frauds. What was the decision 
 of the court? 
 
 A. The defense must fail as the contract was not within the 
 Statute of Frauds; it was simply an agreement to rescind, not 
 a separate sale. Fitzpatrick v. Woodruff, 96 N. Y. 561. "An 
 oral contract, by which a person sells his own chattels or choses 
 in action for more than $50, payment and delivery being made, 
 and agrees to take them back from and repay the purchase 
 price to the purchaser on demand, is an entire contract, and 
 the promise to take back the property and repay the purchase 
 price is not void under the Statute of Frauds." Johnston v. 
 Trask, 116 N. Y. 136. These cases have not been affected by 
 the new statute. 
 
 Q. A agrees to deliver to B one hundred cases of milk 
 bottles during April 1914, two hundred during May and three 
 hundred during June, 1914. He delivers the hundred cases 
 in April but fails to deliver the balance and then sues for the 
 price of the hundred cases delivered. Can he recover? If so 
 on what ground? 
 
 A. Under the old law as laid down in the cases before the 
 
SALES 351 
 
 statute (Champlin v. Rowley, 13 Wend. 258; Catlin v. Tobias, 
 26 N. Y. 217) no recovery was allowed either in contract or in 
 quasi contract, on the ground that the contract was entire 
 and called for an entire performance, and until such perform- 
 ance was made or tendered there was no liabiUty on the part 
 of the defendant. Under the new Sales Act (sec. 125, Pers. 
 Prop. Law.), it seems that recovery could be had for the fair 
 value of the goods received, although it is not expressly stated, 
 yet the inference is such from the language of the statute. 
 Section 125 of the Sales Act is as follows: "Where the seller 
 delivers to the buyer a quantity of goods less than he con- 
 tracted to sell, the buyer may reject them, but if the buyer 
 accepts or retains the goods so delivered, knowing that the 
 seller is not going to perform the contract in full, he must pay 
 for them at contract price. If, however, the buyer has used or 
 disposed of the goods delivered before he knows that the seller 
 is not going to perform his contract in full, the buyer shall not 
 be liable for more than the fair value to him of the goods so 
 received. 2. Where the seller delivers to the buyer a quantity 
 of goods larger than he contracted to sell, the buyer may accept 
 the goods included in the contract and reject the rest, or he 
 may reject the whole. If the buyer accepts the whole of the 
 goods so delivered he must pay for them at the contract rate. 
 3. Where the seller delivers to the buyer the goods he con- 
 tracted to sell mixed with goods of a different description not 
 included in the contract, the buyer may accept the goods 
 which are in accordance with the contract and reject the rest, 
 or he may reject the whole. 4. The provisions of this section 
 are subject to any usage of trade, special agreement, or course 
 of dealing between the parties." 
 
 Q. A bought 500 bushels of wheat from B, being a part of a 
 large quantity stored in an elevator in charge of C. A paid for 
 the wheat in full, and took from B a receipted bill therefor, 
 together with an order from B to C to deliver the wheat to A. 
 Before the wheat was deUvered or separated from the other 
 wheat in the elevator, the whole was burned. A demanded his 
 wheat and brought action against B to recover back his pur- 
 
362 SALES 
 
 chase money. Was he entitled to recover? State your reasons 
 in full. 
 
 A. No. The title passed to A, and he must therefore bear 
 the loss. The payment in full and the execution of the receipt 
 for the price together with the order to deliver, sufficiently 
 showed an intent to pass title without actual Separation or 
 delivery of the grain. "Upon the sale of a specified quantity 
 of wheat or grain, its separation from a mass, indistinguishable 
 in quality or value in which it is included, is not necessary to 
 pass title where the intent to do so is otherwise clearly mani- 
 fested. Articles of this nature are sold, not by a description 
 which refers to and distinguishes the particular thing, but in 
 quantities, which are ascertained by weight, measure or count; 
 the constituent parts which make up the mass being indistin- 
 guishable from each other by any physical difference in size, 
 shape, texture or quality. Of this nature are wine, oil, wheat 
 and the other cereal grains, and the flour manufactured from 
 them. They can be identified only in masses or quantities, 
 and in that mode, therefore, they are viewed in thej contracts 
 and dealings of men. Where the quantity and the general 
 mass from which it is to be taken are specified, the subject of 
 the contract is thus ascertained, and it becomes a possible re- 
 sult for the title to pass, if the sale is complete in all its other 
 circumstances." Comstock, J., in Kimberly v. Patchin, 19 N. 
 Y. 330, the leading case on the subject. So also Russell v. 
 Carrington, 42 N. Y. 118; Gourd v. Healy, 206 N. Y. 432. 
 This rule is continued without change by sec. 87 of the Sales 
 Act. 
 
 Q. A wrote an order to B as follows: "Send me, by Adams 
 Express, at once 500 cases Gold Medal Brand Soap." B at once 
 sent to A by Adams Express, as requested, 400 cases of the 
 above named soap, stating that the remaining 100 cases would 
 follow in ten days; 400 cases shipped were lost in transit, and 
 B sues A for their value, claiming that he delivered them to the 
 express company, as A's agent, at A's request, and that A must 
 stand the loss. What should be the decision of the court? 
 
SALES 353 
 
 A. B cannot recover as the delivery of a smaller quantity 
 than that ordered does not pass title to the buyer, therefore 
 the goods were at B's risk. Bruce v. Pearson, 3 Johns. 534; 
 Brown v. Martin, 60 Hun, 248; Hilton Lumber Co. v. Sizer, 
 137 App, Div. 661. This rule continues the same under sec. 
 100 of the Sales Act, supra. 
 
 Q. A sold to B 100 bushels No. 2 red wheat, and 200 bushels 
 of the same to C to be delivered at A's warehouse. B paid in 
 full for the amount of his purchase, but C did not. A measured 
 out the respective amounts which were to await B's and C's 
 orders, and shortly thereafter the warehouse and its contents 
 were destroyed by fire. On whom does the loss fall? 
 
 A. The loss must fall on B and C. Title had passed to them, 
 as A the seller had done all that he was supposed to do, and 
 delivery was complete. "It is the general rule that a mere 
 contract for the sale of goods where nothing remains to be done 
 by the seller before making delivery, transfers the right of 
 property, although the price has not been paid nor the goods 
 sold delivered to the purchaser." Bradley v. Wheeler, 44 N. 
 Y. 495. See also Bissell v. Balcom, 39 N. Y. 275 ; Van Brocklen 
 V. SmeaUie, 140 N. Y. 70. Section 100 of the Sales Act con- 
 tinues this rule and provides in part as follows: "Rule 1. Where 
 there is an unconditional contract to sell specific goods, in a 
 deliverable state, the property in the goods passes to the buyer 
 when the contract is made and it is immaterial whether the 
 time of payment, or the time of delivery, or both, be post- 
 poned." 
 
 Q. A, who was a merchant in New York, received from B of 
 Chicago an order for certain goods to be sent by the Penn. R. 
 R. Co. A delivered the goods to the railroad company con- 
 signed to B according to the order. The goods were lost en 
 route. A brings suit against the railroad company. The com- 
 pany demurs on the ground that he is not the proper party 
 plaintiff. Judgment for whom and why? 
 
 A. Judgment for the railroad company. On the delivery to 
 23 
 
354 SALES 
 
 the carrier the title passes absolutely to the consignee, and the 
 plaintiff (consignor) cannot maintain an action for their loss. 
 Krulder v. EUison, 47 N. Y. 36; Mee v. McNider, 109 N. Y. 
 500; White v. Schweitzer, 147 App. Div. 544. This rule has 
 not been changed by the Sales Act, sec. 100, and sec. 127. 
 
 Q. A ordered certain goods of B. B ships the goods C. 0. D. 
 by the American Express Co. The vessel by which the goods 
 were shipped was lost at sea. Who must bear the loss? Give 
 your reasons. 
 
 A. The loss must fall upon A as the title passes to the buyer 
 under the Sales Act, even when the goods are shipped C. 0. D. 
 This changes the former rule, as laid down in the cases before 
 the statute. Baker v. Bourcicault, 1 Daly, 23. Section 100, 
 Rule 4, par. 2, provides as follows: "Where, in piu-suance 
 of a contract to se|l, the seller delivers the goods to the buyer, 
 or to a carrier or other bailee (whether named by the buyer 
 or not) for the purpose of transmission to or holding for the 
 buyer, he is presumed to have unconditionally appropriated the 
 goods to the contract, . . . This presumption is applicable, al- 
 though by the terms of the contract the buyer is to pay the 
 price before receiving delivery of the goods, and the goods are 
 marked with the words 'collect on delivery' or their equiva- 
 lents." 
 
 Q. A orders goods of B, to be delivered to A at Syracuse, N. 
 Y., where A's place of business is located. B shipped the goods, 
 but they are lost before reaching Syracuse. Who must bear 
 the loss? 
 
 A. B must bear the loss as the title did not pass to A, the 
 consignee, before the goods reached the destination agreed 
 upon. Pacific Iron Works v. R. R. Co., 62 N. Y. 272; Krulder 
 V. Ellison, supra; Gass v. Astoria Mills, 121 App. Div. 182. 
 These decisions as to delivery at a particular place have not 
 been changed by Rule 5 of sec. 100 of Sales Act, which provides 
 as follows: "If the contract to sell requires the seller to deliver 
 the goods to the buyer, or at a particular place, or to pay the 
 
SALES 355 
 
 freight or cost of transportation to the buyer, or to a particular 
 place, the property does not pass until the goods have been 
 delivered to the buyer or reached the place agreed upon." 
 
 Q. The defendant sold to the plaintiff a horse. It turns out 
 that the defendant was not the true owner but had pxirchased 
 it from a thief. The sale to the plaintiff was without a war- 
 ranty. Plaintiff sues to recover the price paid. Has he a cause 
 of action? 
 
 A, Yes. Plaintiff can recover. In sales of personal property 
 where the vendor at the time has possession, a warranty of title 
 is implied. Burt v. Dewey, 40 N. Y. 233; McGiffen v. Baird, 
 62 N. Y. 329; McClure v. Central Trust Co., 165 N. Y. 108. 
 This is now provided for in sec. 94 of the Sales Act, par. 1, as 
 follows: "In a contract to sell or a sale, unless contrary in- 
 tention appears, there is (1) An implied warranty on the part of 
 the seller that in case of a sale he has a right to sell the goods, 
 and that in case of a contract to sell he will have a right to sell 
 the goods at the time when the property is to pass." It will be 
 noticed that the statute does not now require that the vendor 
 be in possession of the goods in order that the warranty may 
 arise. To that extent the statute may be said to have modified 
 the former rule as laid down in the above cited cases. 
 
 Q. A agrees to dehver 500 tons of coal to B at $5 per ton, 
 pajTiient to be made in thirty days. A delivers the coal. B 
 fails to make payment in thirty days. He is sued by A and 
 sets up as a defense that the coal was not worth |5 per ton, 
 but was worth less because of the slate mixed with it, and ten- 
 dered into court what he considered the reasonable value. At 
 the trial it is established that B had sold part of the coal to his 
 customers. Is B's defense good? 
 
 A. B's defense is not good, as there was no warranty here. 
 Where after the discovery of, or an opportunity to discover, 
 any defect in goods delivered under an executory contract of 
 sale, the vendee neither returns or offers to return the property, 
 nor gives the vendor notice or opportunity to take it back, in 
 
356 SALES 
 
 the absfence of a collateral warranty or agreement as to quality, 
 he is conclusively presumed to have acquiesced and may not 
 thereafter complain of inferior quality. A buyer ordinarily 
 takes the thing sold at his own risk as to quality. Caveat 
 emptor is the general rule. Coplay Iron Co. v. Pope, 108 
 N. Y. 412. "Where the vendee of goods purchased without 
 warranty, after full opportunity for inspection, accepts theih 
 without objection when delivered, he cannot in an action 
 against him to recover the price, defend on the ground that 
 they did not conform to the contract of sale." Smith v. Coe, 
 170 N. Y. 162. This general rule has not been changed by the 
 Sales Act as will be seen from an examination of sec. 93, de- 
 fining express warranty, which is as follows: "Any affirmation 
 of fact or any promise by the seller relating to the goods is an 
 express warranty if the natural tendency of such affirmation or 
 promise is to induce the buyer to purchase the goods, and if the 
 buyer purchases the goods relying thereon. No affirmation of 
 the value of the goods, nor any statement purporting to be a 
 statement of the seller's opinion only shall be construed as a 
 warranty." 
 
 Q. A sells B certain goods and warrants them to be of a 
 certain quality. The goods are delivered. B sells the goods at 
 retail in his store. B sues for breach of warranty. A answers, 
 setting up the fact that B retained the goods as a defense. 
 Judgment for whom and why? 
 
 A. Judgment for B. It is well settled that upon the sale and 
 delivery of goods with express warranty, if the goods upon 
 trial turn out to be defective and there is a breach of the war- 
 ranty, the vendee may retain and use the property and yet 
 have his remedy upon the warranty without returning or 
 offering to return. Day v. Pool, 62 N. Y. 416; Brigg v. Hilton, 
 99 N. Y. 517. This rule of course was not affected by the 
 Sales Act, as now all warranties survive acceptance, whether 
 express or implied. Section 130 of the Sales Act, in coimection 
 with sec. 150 simply extends the rule so as to include implied 
 warranties, and reserves to the buyer the cause of action for 
 
SALES 357 
 
 damages after acceptance in all cases of warranty. Section 130 
 of the Sales Act reads as follows: "In the absence of express or 
 implied agreement of the parties, acceptance of the goods by 
 the buyer shall not discharge the seller from liability in damages 
 or other legal remedy for breach of any promise or warranty in 
 the contjact to sell or the sale. But if, after acceptance of the 
 goods, the buyer fails to give notice to the seller of the breach 
 of any promise or warranty within a reasonable time after the 
 buyer knows, or ought to know, of such breach, the seller shall 
 not be liable therefor." 
 
 Q. A sells certain articles to B, at the same time making 
 certain statements which amoimt to an implied warranty. 
 There are certaua obvious defects which B who examined the 
 articles could have discovered. Has B any right of action 
 against A? 
 
 A. No. The defect being obvious, B cannot recover upon 
 the warranty. A general warranty does not apply to obvious 
 defects apparent upon ordinary inspection by the buyer. This 
 rule that a warranty does not extend to known or obvious 
 defects was well settled, Birdseye v. Frost, 34 Barb. 367; 
 Bennett v. Buchan, 76 N. Y. 386; Studer v. Bleistein, 115 
 N. Y. 316. TheSalesAct has not changed this rule. Section 96, 
 par. 3, provides as follows: "If the buyer has examined the 
 goods, there is no imphed warranty as regards defects which 
 such examination ought to have revealed." 
 
 Q. A sells to B dressed beef which he says has not been 
 warmed before being killed. B takes the meat and discovers 
 that it has been warmed before killing. He keeps the meat. 
 A brings suit against him for the purchase price. B sets up a 
 breach of warranty by way of counterclaim. Is the counter- 
 claim good? State your reasons. 
 
 A. The counterclaim is good as A's agreement amotmted to 
 an express warranty which survived delivery and acceptance. 
 It was not necessary in order to constitute an express war- 
 ranty that the word "warranty" should have been used; a 
 
368 SALES 
 
 positive affirmation as to quality understood and relied upon 
 by the vendee, as such, is sufficient. "No particular phraseol- 
 ogy is requisite to constitute a warranty. It must be a repre- 
 sentation which the vendee relies upon and which is imderstood 
 by the parties as an absolute assertion, and not the expression 
 of an opinion. It is not necessary that the vendor should have 
 intended the representation to constitute a warranty." Fair- 
 banks Canning Co. v. Metzger, 118 N. Y. 260. This rule 
 remains the same under the Sales Act, sec. 93, supra. 
 
 Q. A is a manufacturer of cloth. He sells a certain quantity 
 of cloth to B who is a manufacturer of clothing. B uses the 
 cloth and manufactures it into clothing. He subsequently 
 discovers through his customers that the cloth was defective. 
 He brings action against A to recover damages sustained. 
 Can he do so? 
 
 A. Yes, B can maintain the action. "On the sale of goods by 
 a manufacturer, a warranty is implied that the articles sold are 
 free from any latent defect growing out of the process of 
 manufacture. The obligation arising from the implied war- 
 ranty imposed upon the seller of goods manufactured by him- 
 self, survives their acceptance if the defects were not dis- 
 coverable upon inspection by ordinary tests." Hoe v. Sanborn, 
 21 N. Y. 552; Bierman v. City Mills, 151 N. Y. 482. This case 
 would be the same under the Sales Act, sec. 96. 
 
 ") 
 
 Q. A sells certain watches to B by sample. B receives the 
 goods and sells them. In a suit by A for the price, B sets up as 
 a counterclaim that the bulk of the goods did not correspond 
 with the sample, as more than half of the watches contained 
 an inferior movement. Is the counterclaim good? 
 
 A. Yes. B can recover damages by way of counterclaim for 
 breach of the warranty which arises on a sale by sample, even 
 though he retained the goods. "Where goods are sold by 
 sample, and there are no circumstances to quahfy the transac- 
 tion, there is an implied warranty that each of the articles shall 
 correspond with the sample." Leonard v. Fowler, 44 N. Y. 
 
SALES 359 
 
 289. "A contract for the sale of goods which points out a 
 known and ascertainable standard by which to judge the 
 quality of the goods sold, is for all practical purposes a sale by 
 sample. Upon a sale by sample, with warranty that the goods 
 shall correspond with the sample, the vendee is not precluded 
 from claiming and recovering damages for breach of warranty, 
 although he has accepted the goods after an opportunity for 
 iaspection." Zabriskie v. R. R., 131 N. Y. 72. See also Henry 
 V. Talcott, 176 N. Y. 385. This rule has not been changed by 
 the Sales Act, sec. 97, which provides in part as follows: "In 
 the case of a contract to sell or a sale by sample: (o) There is an 
 implied warranty that the bulk shall correspond with the 
 sample and quahty." 
 
 Q. A purchased a horse from B giving him in payment there- 
 for a note payable to bearer made by C. At the time of the 
 purchase C had failed but neither A nor B knew it. B comes 
 to you for advice and asks you whether he can recover the 
 value of the note from A. What would you advise him? 
 
 A. B can recover from A. "Upon broad principles of justice 
 a man should not be allowed to pay a debt with worthless 
 paper, though both parties supposed it to be good. Here when 
 this loss occurred, the note was the property of the defendants. 
 Why should they not bear their own loss? They seek to pay a 
 debt they honestly owe with that loss, with that worthless 
 paper. Assuming the integrity of both parties, it seems equita- 
 ble and just that defendants should sustain the loss that 
 occmred while they were bearing the risk, while the note was 
 yet at the risk of no one else." Peckham, J., in Roberts v. 
 Fisher, 43 N. Y. 159. 
 
 Q. A consigned goods to be shipped to Chicago to B, and 
 then B is to ship them wherever he pleases. The goods reached 
 the depot of the raihoad company by which they were carried 
 to Chicago. When A learns that B is insolvent, he demands the 
 goods of the railroad company which refuses to deliver them. 
 What are the rights of the parties? 
 
360 SALES 
 
 A. A has no rights to the goods. The right of stoppage has 
 ceased. Stoppage in transitu is the right which the seller has 
 to retake the goods at any time before they come into the 
 possession of the buyer or his agent, when the goods have not 
 been paid for and the buyer has become insolvent. Buckley v. 
 Furniss, 17 Wend. 504; Cross v. O'Donnell, 44 N. Y. 661; 
 Babcock v. Bonnell, 80 N. Y. 244. The railroad company here 
 appears to be the agent of the buyer, and therefore the goods 
 having reached their destination, the right of stoppage is 
 gone. "The delivery of goods to the vendee which puts an 
 end to the state of passage and so deprives the vendor of the 
 right of stoppage in transitu, may be at a place where the for- 
 mer means the goods to remain until a fresh destination is 
 given to them by himself. When they have reached the place 
 for which they were intended under the direction given by the 
 vendee, the right of stoppage ceases." Becker v. Hallgarten, 
 86 N. Y. 167. The Sales Act, sees. 138 and 139, has not altered 
 these rules in respect to stoppage in transitu. 
 
 Q. A sold to B 1,000 tons of iron which B wrongfully re- 
 fused to accept, and pay for. A comes to you for advice, and 
 wishes to be informed of his rights. What are his rights and 
 remedies? Answer in full. ' 
 
 A. On the failure of a purchaser to perform a contract for 
 the sale of personal property, the vendor, as a general rule, has 
 the election of three remedies: 1. To hold the property for the 
 purchaser and recover of him the entire purchase money. 
 2. To sell it after notice to the purchaser as his agent for that 
 purpose and recover the difference between the contract price 
 and that reaUzed on the sale. 3. To retain it as his own, and 
 recover the difference between the contract price and the 
 market price at the time and place of delivery. Dustan v. 
 McAndrew, 44 N. Y. 72; Sawyer v. Dean, 114 N. Y. 469; 
 Moore v. Potter, 155 N. Y. 481. The Sales Act, sees. 141, 142 
 and 144, has not changed this rule. 
 
 Q. The Y Company, jobbers in dry-goods, sold to A, a 
 
SALES 361 
 
 merchant, a large quantity of ribbons designed for his fall 
 trade, to be delivered on or before the first day of September, at 
 an agreed price. The goods were not delivered until the 15th of 
 October, and they were accepted by A. The failure of the 
 Y Company to deliver at the agreed time caused serious dam- 
 age to A's trade, for which A claims damages. What are A's 
 rights? 
 
 A. A can recover damages caused by delay in delivery, al- 
 though he accepted the late delivery, as this was a breach of 
 warranty — failure to deliver the goods on time. The warranty 
 survived acceptance. Crocker Wheeler Co. v. Varick Co., 
 104 App. Div. 568; Raymore Realty Co. v. P. N. Co., 145 App. 
 Div. 163. This rule remains the same under the Sales Act, 
 sec. 130, supra. 
 
 Q. A, on June 1, 1906, makes an agreement with B to sell 
 him 500 barrels of flour at $5 per barrel, to be delivered on 
 July 1. About Jvme 8, flour falls in price and B goes to A and 
 tells him not to send the goods, as he will not take them at the 
 contract price. A, on the next day thereafter, sells the goods to 
 C. Flour in the meantime has advanced to $6 per barrel, and 
 B on the day following writes to A to send the 500 barrels of 
 flour at once. A consults you as to his rights and remedies. 
 What would you advise him? 
 
 A. A need not send the goods, but instead can bring suit 
 immediately (before July 1) against B for breach of contract. 
 "Where before the time of delivery fixed by a contract of sale 
 of goods, the vendee notifies the vendor that he will not receive 
 or pay for the goods and requests him to stop any further 
 efforts to carry out the contract, the vendor ig justified in 
 treating the contract as broken at that time, and is entitled to 
 bring an action immediately for the breach without tendering 
 delivery; it is not necessary to await the expiration of the time 
 of performance fixed by the contract, nor can the vendee 
 retract his renunciation of the contract after the vendor has 
 acted upon it and by the sale of the goods to other parties. 
 
362 SALES 
 
 changed his position." Windmuller v. Pope, 107 N. Y. 674. 
 So also Nichols v. Scranton Steel Co., 137 N. Y. 471; Stokes 
 V. Mackay, 147 N. Y. 223. This rule has been re-enacted 
 without change in sec. 145 of the Sales Act. 
 
 Q. A, having ordered goods of B, later refuses to accept 
 them. B sues A for nonacceptance. What is the measure of 
 damages? 
 
 A. The measm-e of damages in such case is the difference 
 between the contract price and the market value of the goods 
 at the time and place of delivery, Cahen v. Piatt, 69 N. Y. 
 348; Ruideau v. Bullock, 147 N. Y. 269; Lekas v. Schwartz, 
 107 N. Y. Supp. 145. This rule is continued by sec. 145 of the 
 Sales Act. 
 
 Q. A bought goods from B, receiving a warranty that the 
 goods were to be of a certain quality. When the goods were 
 delivered to A, he discovered that they were inferior in quality. 
 A retained the goods but brought suit against B on the war- 
 ranty. Can the action be maintained, and if so what is the 
 measure of damages? 
 
 A. The action for breach of warranty can be maintained, as 
 all warranties under the statute, survive acceptance; and 
 especially so as in this case where there was an express war- 
 ranty. The ordinary rule, as to measure of damages, is the 
 difference between the actual value of the goods sold with 
 defects, and the value which they would have had at the. time 
 of the sale if they had conformed to the warranty. Hooper v. 
 Story, 155 N. Y. 171; Mathes v. McCarthy, 195 N. Y. 40; 
 Miller v. F. R. Mfg. Co., 101 App. Div. 22. This rule remains 
 the same under sec. 150 of the Sales Act, pars. 6 and 7. 
 
 Q. A bought of B certain dress goods, which B expressly 
 warranted to be of a 'certain quality, but they turned out to be 
 defective. B neither returned nor offered to return them, and 
 thereafter sold the same in due course at their market value, 
 and lost $1,500. B is now sued for the contract price and con- 
 
SALES 363 
 
 suits you as to his rights to counterclaim his damages. How 
 would you advise him? 
 
 A. B has a right to counterclaitn his damages, as the war- 
 ranty survived acceptance (sees. 96 and 130 of the Sales Act) 
 and the remedy by recoupment is expressly given by sec. 150 
 of the Sales Act as follows: "1. Where there is a breach of 
 warranty by the seller, the buyer may, at his election, (a) Ac- 
 cept or keep the goods and set up against the seller the breach 
 of warranty by way of recoupment in diminution or extinction 
 of the price." 
 
 Q. A sold to B a horse for $200, warranting him to be gentle 
 and kind. The horse was delivered to B, and the agreed price 
 paid. The horse proved to be vicious and unmanageable on the 
 first trial. B at once offered to return the horse to A, and 
 notified that he rescinded the sale and purchase, and demanded 
 that A return to him the $200 which he had paid. A refused to 
 do so. B comes to you for advice. What are his rights? 
 
 A. B had the right to rescind under sec. 150 of the Sales 
 Act, Rule 1, sub-div. (d) which is as follows: "1. Where there 
 is a breach of warranty by the seller, the buyer may, at his 
 election, (d) Rescind the contract to sell or the sale and refuse 
 to receive the goods, or if the goods have already been received, 
 return them or offer to return them to the seller and recover the 
 price or any part thereof which has been paid." This right 
 of rescission given to the buyer by the above sub-section changes 
 the former law. Before the statute the buyer after accepting 
 the goods and taking title, could not, for breach of warranty, 
 return the goods to the buyer and rescind the contract, but was 
 compelled to rely on his right of action for damages, if that had 
 not been extinguished by his acceptance, as in the case of an 
 implied warranty, 
 
 Q. A, having knowledge of his insolvency, fraudulently 
 bought of B several cases of hosiery on 30 days' credit. The 
 goods were duly delivered. A was indebted to C at the time, 
 who was also engaged in the hosiery business. C thereafter 
 
364 SALES 
 
 purchased of A the above described goods at a fair valuation, 
 for purposes of his business, the purchase price to be apphed 
 on his debt. At the time C purchased and received the goods, 
 he had no knowledge of A's insolvency, but believed him to be 
 perfectly solvent, and acted in good faith. Shortly thereafter 
 several of A's creditors obtained judgments against him and 
 issued execution. What are B's rights and remedies? 
 
 A. B can replevin the goods, as the sale was induced by A's 
 fraud. C was not a bona fide purchaser for a valuable con- 
 sideration paid at the time of the sale, he having purchased the 
 goods for an antecedent debt. One who takes goods in pay- 
 ment of an antecedent debt, is not a purchaser for value. 
 Weaver v. Barden, 49 N. Y. 286; Stevens v. Brennen, 79 N. Y. 
 254; LaManna v. Munroe, 48 App. Div. 495. The New York 
 Sales Act has not changed this rule, as sees. 105 and 156 are 
 both silent on this point. Therefore the law remains as above 
 stated. 
 
 (Note.) The definition of value given in the Uniform Sales Act is as fol- 
 lows: "Value is any consideration sufficient to support a simple contract. 
 An antecedent or pre-existing claim, whether for money or not, constitutes 
 value, where goods or documents of title are taken either in satisfaction 
 thereof or as security therefor. This definition was omitted from the New 
 York Statute." 
 
CHAPTER XVI 
 
 Suretyship and Guaranty 
 
 Q. A is surety for the faithful performance of a contract 
 made by B with C. Upon B's default, C immediately brings 
 action against A, who defends on the ground that C should 
 have first exhausted his remedies against B before proceeding 
 against him. Is the defense good? 
 
 A. The defense is not good, as the liability of a sm-ety is 
 absolute and unconditional; he is primarily liable. The surety 
 undertakes to pay the debt if the principal does not. He is an 
 insurer of the debt. The surety assumes to perform the con- 
 tract of the principal if he does not, and if the act which the 
 surety undertakes to perform through the principal is not 
 done, then the surety is liable at once. A person who engages 
 to be answerable for the debt, default or miscarriage of another 
 is a surety. Pingrey on Siu-etyship and Guaranty, pp. 1-5. 
 The general rule is stated in De Colyar on the Law of Guaran- 
 tees, 3d Ed., p. 212, as follows: "Once the principal has actu- 
 ally committed a default, for which the surety is responsible, 
 as a general rule a cause of action inomediately arises against 
 the surety. And consequently as a general rule, and in the 
 absence of any express or implied stipulation to the contrary, 
 the creditor need not, before suing the surety, sue the principal 
 debtor, even though such principal debtor be quite solvent." 
 See also Hayes v. Ward, 4 Johns. Ch. 123. 
 
 Q. A is a guarantor of the payment of a note of B to the 
 order of C. At maturity it is unpaid, and C makes no effort to 
 enforce collection from B. He sues A. Can he recover? 
 
 A. Yes, for this is an absolute guaranty. "The defendant 
 has very plainly contracted as guarantor. If he is not liable as 
 
 365 
 
366 SURETYSHIP AND GUARANTY 
 
 such, he is not Uable at all; and if he is liable as such, he cannot 
 get rid of the obligation by calling himself an iadorser or any- 
 thing else. The undertaking of the defendant was not con- 
 ditional like that of an indorser, nor was it upon any condition 
 whatever. It was an absolute agreement that the note should 
 be paid by the maker at maturity. When the maker failed 
 to pay, the defendant's contract was broken, and the plaintiff 
 had a complete right of action against him. It was no part 
 of the agreement that the plaintiff should give notice of the 
 nonpayment, nor that he should sue the maker or use any dili- 
 gence to get the money from him. The point was decided long 
 ago that a guaranty of payment, like the one in question, is 
 not conditional, but an absolute undertaking that the maker 
 will pay the note when due. Allen v. Rightmere, 20 Johns. 
 365. The guarantor does not promise to pay himself, but that 
 the maker will pay. The defendant was under an absolute 
 agreement to see that the maker paid the note at maturity. 
 The plaintiff was under no obligation to institute legal proceed- 
 ings." Bronson, J., in Brown v. Curtis, 2 N. Y. 225. See also 
 FideUty & Casualty Co. v. Wells, 49 App. Div. 172; Bank v. 
 Zunmerman, 185 N. Y. 218. 
 
 Q. A guarantees the collection of a note made by C to B. 
 Upon C's default to pay the same, B immediately sues A with- 
 out making any effort to get payment from C. Can he main- 
 tain the action? 
 
 A. No. One who guarantees in general terms the collection 
 of a debt, thereby undertakes that it is collectible by due 
 course of law, and only promises to pay when it is ascertained 
 that it cannot be collected by suit against the principal prose- 
 cuted to judgment without unnecessary delay and execution 
 issued thereon. An endeavor to so collect, is a condition 
 precedent to a right of action against the guarantor. The 
 guaranty in question here was not one of payment but of col- 
 lection. A distinction must be drawn between the two. The 
 one is absolute, the other conditional. Craig v. Parkis, 40 N. Y. 
 181; McMurray v. Noyes, 72 N. Y. 524; Bank v. Sloan, 135 
 N. Y. 371; Vetter v. Welz, 143 App. Div. 123. 
 
SURETYSHIP AND GUARANTY 367 
 
 Q. A, an infant, purchased of B certain furniture on credit. 
 C guaranteed the collection of the price therefor. B sued A 
 for the purchase price of the furniture, but the latter pleaded 
 infancy as a defense and the judgment was in his favor. B 
 then sued C on the guaranty, and C pleaded A's infancy as a 
 defense. Was C's defense good? 
 
 A. No. The guarantor is held liable in these cases in which 
 the debt is justly owing, although from some defect or inca- 
 pacity the principal is not liable in any action. "If the prin- 
 cipal obligation was annulled only because of some personal 
 exception which the principal debtor had, as if it was a minor, 
 who, in consideration of his being under age, got himself re- 
 lieved from an obligation by which he suffered some prejudice, 
 and that there had been no fraud on the creditor's part, the 
 restitution of the minor would have indeed this effect, that it 
 would annul his obligation to the creditor, and his engage- 
 ment to save harmless his surety, if he desired to be reUeved 
 from it. But the said restitution of the minor would not in 
 the least invalidate the surety's obligation to the creditor. 
 For it was only to make good the obhgation of the minor, in 
 case he should be relieved from it on account of his age, that 
 the creditor took the additional security of a surety." Kimball 
 V. Newell, 7 Hill, 116. See also Erwin v. Downs, 15 N. Y. 
 576; Putnam v. Schuyler, 4 Hun, 169. 
 
 Q. A and B become sureties to C for D, for the same debt. 
 Each executes a separate bond, A's being in the penal sum of 
 $10,000, and B's m the penal sum of $30,000. D defaulted in 
 the sum of $10,000, and C sues A on his bond and compels 
 him to pay the amount thereon. Has A, under the circumstance 
 disclosed, any remedy against B? If so, what? If not, why 
 not? 
 
 A. He has a right to compel B to contribute. The rights and 
 obhgations of sureties inter sese are the same whether bound 
 in one or several like obhgations; where there are several dis- 
 tinct bonds in different penalties, they are bound to contribute 
 
368 SURETYSHIP AND GUARANTY 
 
 in proportion to the amount of the penalties of their respective 
 bonds. Armitage v. Pulver, 37 N. Y. 494. Cosureties are 
 entitled to the right of contribution when they are bound for 
 the performance by the same principal for the same obUgation, 
 and whether they become so at the same time or different 
 times by one or several instruments, even if they are boimd in 
 different sums, or if each is ignorant that the other is a surety. 
 The obligation of cosureties to contribute to each other has 
 grown out of the rule that equality is equity, and is not founded 
 on the idea of a contract between the sureties. Aspinwall v. 
 Sacchi, 57 N. Y. 331; Wells v. Miller, 66 N. Y. 255. 
 
 Q. A and B are cosureties on a debt of C to D of $12,000. 
 C fails to pay. A is compelled to pay to ^ $8,000, and brings 
 action against B for $4,000 contribution. Can the action be 
 maintained? State your reasons. 
 
 A. He cannot recover $4,000; he can only compel B to pay 
 him $2,000, the amount in excess of one-half of the debt. "The 
 obligation of one of two cosureties is to pay the whole debt; 
 if he does so, he may recover of his cosurety one-half; if h&^ia!^^ 
 less than the whole debt, he can recover from his cosurety, 
 the amount he has paid in excess of the moiety." Morgan v. 
 Smith, 70 N. Y. 537; Hard v. Mingle, 206 N. Y. 187. 
 
 (Note.) Where there are several cosureties on a debt, and one has paid 
 the debt, upon proof that the other cosureties are insolvent, the one paying 
 the debt may recover a half contribution from the one that is solvent by 
 bringing an equitable action. Easterly v. Barber, 66 N. Y. 433 ; Kimball v. 
 Williams, 51 App. Div. 616. 
 
 ^ 
 
 Q. A is surety to secure the performance of a contract by 
 B to C. C holds a chattel mortgage on property belonging to 
 B as security for the performance of the same contract by B. 
 B defaults and A is compelled to pay the amount of the obli- 
 gation to C. What right, if any, has A? 
 
 A. He is entitled to the possession of the chattel mortgage 
 by right of subrogation. "Where one has been compelled to 
 pay a debt which ought to have been paid by another, he is 
 
SURETYSHIP AND GUARANTY 369 
 
 entitled to a cession of all the remedies which the creditor 
 possesses against that other." Schram v. Werner, 85 Hun, 
 293. See also Matthews v. Aikin, 1 N. Y. 595; Townsend v. 
 Whitney, 75 N. Y. 425. 
 
 Q. A is surety for B in the sum of $10,000. B defaults, and 
 A is sued by the creditor. He settles for $6,000. A then brings 
 action against B to recover the whole $10,000. Can the action 
 be maintained? State your reasons. 
 
 A. A can only recover the amount he has paid. If the surety 
 extinguishes the debt for less than the whole amount due, he 
 can only recover what he actually paid, as the contract be- 
 tween principal and surety is for indemnity only. Bonney v. 
 Seely, 2 Wend. 481 ; Coleman v. Lansing, 65 Barb. 54; Konitzky 
 V. Meyer, 49 N. Y. 571. 
 
 Q. The defendant as surety signed a bond for the faithful 
 performance of a contract of A with a corporation. The cor- 
 poration paid A in advance. A refuses to perform. The cor- 
 poration sues A for damages, but the contract is held void by the 
 court, A being compelled to return the money paid to him by 
 the corporation which he is unable to do. The corporation 
 thereupon sues the surety. Is he liable? Give reasons. 
 
 A. No. As the contract is void, the surety is released from 
 liability. He merely agreed to be bound on the contract; the 
 money here is to be repaid, not in performance of the contract, 
 but merely as money received under a void contract. The 
 liabihty of a surety is strictissimi juris, which means that a 
 surety shall not be held beyond the precise terms of his con- 
 tract. Gates V. McKee, 13 N. Y. 232; Bennett v. Draper, 139 
 N. Y. 266; Smith v. MoUeson, 148 N. Y. 241. 
 
 Q. A and B, partners in a distillery, executed a bond to the 
 
 U. S. for the payment of the duties and taxes on distilled spirits, 
 
 with C as their surety. D at the request of the principals paid 
 
 the bond, and now sues A, B and C to recover the amount paid 
 
 24 
 
370 SURETYSHIP AND GUARANTY 
 
 thereon. They consult you. What are their respective rights 
 and Habihties, if any? Give reasons in full. 
 
 A. D can recover from A and B, but not from C, as C being 
 a surety only and having no interest in the distillery is not hable. 
 He was only liable on the bond, and after that was paid his liabil- 
 ity ceased. ' ' When the bond was once discharged, he had no fur- 
 ther concern or interest in the transaction and a payment at the 
 request of one of the obligors, ought not to have a greater oper- 
 ation than an actual payment by that one." Elmendorph v. 
 Tappen, 5 Johns. 177. The principle involved in these cases 
 is that the surety's liability is strictissimi juris, and will not be 
 extended beyond the precise terms of his contract. Page v. 
 Krekey, 137 N. Y. 314. 
 
 Q. A is appointed bookkeeper of the X Bank. At the time of 
 the appointment, B executes to the bank a bond conditioned 
 that A will faithfully perform the duties imposed upon him as 
 bookkeeper and the duties of any other office relating to the 
 business of the bank which may be assigned to him. After 
 serving for several years as bookkeeper, B was appointed as 
 receiving teller of the bank, and while acting in that capacity 
 embezzled $5,000 of the bank's funds. The bank sues B on 
 the bond. Is he liable? 
 
 A. No. The surety undertook only for the fidelity of the 
 principal while he was bookkeeper, both in the performance of 
 that office, trust or employment teniporarily imposed upon or 
 assumed by him during that time relating to the bank's busi- 
 ness, but not for his fidelity in another position to which he was 
 permanently appointed. The liability of a surety is always 
 strictissimi juris, and may not be extended by construction 
 beyond his specific engagement. Nat. Mechanics' Bank Assn. 
 V. ConkUng, 90 N. Y. 116; Ulster County Sav. Inst. v. Young, 
 161 N. Y. 23. 
 
 (Note.) Where the bond recited, "Or shall be appointed to any other 
 oflSce, duty or employment, he shall also faithfully perform the duties of that 
 office," it was held that the surety was liable for misappropriation by the 
 principal after appointment to that office. Bank v. Spinney, 120 N. Y. 560. 
 
SURETYSHIP AND GUARANTY 371 
 
 Q. A became surety to B's bank for the faithful performance 
 of the duties of X as bookkeeper. X was allowed to take the 
 teller's place every day diu-ing the dinner hour of the latter, 
 and while acting as teller he stole $10,000. A is sued on the 
 bond and claims that he is not liable. Judgment for whom and 
 why? 
 
 A. Judgment for the bank. "A bond conditioned that the 
 principal obligor shall faithfully discharge 'the trust reposed 
 in him as bookkeeper' of a bank, extends to his honesty as well 
 as his reasonable skill and diHgence. It is no defense to the 
 surety, that, at the time of an embezzlement, the principal was 
 employed in performing a duty usually assigned to the teller." 
 Rochester City Bank v. Elwood, 21 N. Y. 88; Mayor of New 
 York V. Kelly, 98 N. Y. 471. 
 
 Q. A is employed in the X Bank. He takes and appropriates 
 to his own use from the bank's funds 11,000. This is after- 
 wards discovered and A makes restitution of the amount. He 
 is retained in the bank's employ on condition that B become 
 surety for him. B becomes his surety without knowledge of the 
 former embezzlement, and the bank knows that B does not 
 know of it. A afterwards embezzles $2,000 and absconds. The 
 bank brings action against B as surety on the bond. Judg- 
 ment for whom and why? 
 
 A. Judgment for B. "Where an employer takes a bond as 
 security for the fidelity of his agent, who, to the knowledge of 
 the employer has previously violated the trust put in him, and 
 the employer does not disclose such fact or misconduct to the 
 surety, he is guilty of the fraudulent concealment of a material 
 fact, which good faith requires him to disclose, and he cannot 
 recover of the sureties the damages resulting from a subsequent 
 default of his agent." U. S. Life Ins. Co. v. Salmon, 91 Hun, 
 535, aff'd in 157 N. Y. 682. See also Howe Machine Co. v. 
 Farrington, 82 N. Y. 121 ; Bostwick v. Van Voorhis, 91 N. Y. 
 353. 
 
 Q. A was surety on a bond to the First National Bank of 
 Buffalo for no definite time, conditioned for the faithful per- 
 
372 SURETYSHIP AND GUARANTY 
 
 formance by B of his duties as cashier of the bank. He had 
 been appointed and held the position of cashier on the strength 
 of the bond. After it had been running for four or five years, 
 A notified the bank that he revoked the same and considered 
 himself no longer liable thereon. The bank refused to consider 
 his release from his liability thereon and so informed him. 
 Thereafter B becomes a defaulter and the bank seeks to hold 
 A on his bond. A consults you. What would you advise? 
 Give your reasons. 
 
 A. A is not liable on the bond. "A sm-ety bound for the 
 fidelity and honesty of his principal, and so for an indefinite 
 and contingent liabiUty, and not for a sum fixed and certain to 
 become due, may revoke and end his future liability in either 
 of two cases, viz.: 1. When the guaranteed contract has no 
 time to run; 2. Where it has such definite time, but the prin- 
 cipal has so violated it and is so in default that the creditor may 
 safely and lawfully terminate it on account of the breach. 
 Where the person employed commits an act of dishonesty and 
 is unfaithful to his trust, the employer may end the contract 
 and trust for his own protection, and what he may do and ought 
 to do for his own safety, the surety may require to be done 
 for his." Emery v. Balz, 94 N. Y. 414. See also Picker v. 
 Fitzelle, 60 App. Div. 451; Vidi v. United Surety Co., 155 App. 
 Div. 505. 
 
 Q. A was appointed to the position of cashier of the Federal 
 Trust Company, and before entering upon his duties was re- 
 quired to give a bond to the said company for the faithful per- 
 formance of his duties as cashier in the sum of $10,000. He 
 asked B to become surety upon the bond but B refused unless 
 C would first sign the bond as surety. Thereafter A presented 
 the bond to B purporting to bear the signature of C as surety, 
 and requested B to sign as surety, which B did. A defaulted 
 and the company brought action against A, B and C on the 
 bond. B defended on the ground that he only became surety 
 believing that the signature of C was genuine and that C's 
 signatxire was a forgery. Is B's defense good? Give reasons. 
 
SUEETYSHIP AND GUARANTY 373 
 
 A. B's defense is not good. It is not competent to prove 
 that the surety was induced to execute the bond by the fraud 
 of his principal, unless the obligee was connected with the fraud 
 and as the trust company here was entirely ignorant of the 
 forged signature it can recover. Coleman v. Bean, 3 Keyes, 
 94; Mosher v. Carpenter, 13 Hun, 602. 
 
 Q. A was surety for B on a contract made with C. C being 
 about to enforce the contract, and B not being able to pay at 
 the time, agreed to extend B's time one year, and did so without 
 the knowledge of A. Subsequently C seeks to hold A hable as 
 surety, B having defaulted. Is he liable or not, and why? 
 
 A. A is not liable. The rule is that an extension of time, 
 upon a valid and binding agreement, without the consent of the 
 surety, discharges him from liability on the ground that his 
 position is jeopardized thereby. The creditor, in giving time 
 to the principal debtor, deprives the surety of the right which 
 he would have had from the mere fact of entering into the posi- 
 tion of a surety, that is, the right to proceed against the prin- 
 cipal, and if this right be suspended, no matter for how short a 
 time, and not injuring the surety at all, and even actually 
 benefiting him, nevertheless it is established that this dis- 
 charges the surety altogether. Rathbone v. Warren, 10 Johns. 
 587; Caloo v. Davies, 73 N. Y. 211; Spies v. Bank, 174 N. Y. 
 222; Nat. Park Bank v. Koehler, 204 N. Y. 174. 
 
 Q. A was surety, B principal and C creditor on an obligation. 
 B asks C to refrain from suing or pressing his claim until he 
 (B) should be able to pay the same. C said he would be patient, 
 but would not agree to give him any time. When the obliga- 
 tion was due, B was solvent, but became insolvent soon after. 
 The surety had no knowledge of the conversation. Upon B's 
 default, C brings action against the surety to recover the debt. 
 Judgment for whom and why? State your reasons. 
 
 A. Judgment for C; A is not discharged. A mere indulgence 
 to the debtor will not discharge the surety; there must be an 
 agreement to extend the time of payment binding on the 
 
374 
 
 SURETYSHIP AND GUARANTY 
 
 creditor. Lowman v. Yates, 37 N. Y. 601; McKechnie v. 
 Ward, 58 N. Y. 541. "To have the effect of discharging the 
 surety, an agreement for the extension of time of pajonent 
 made by the creditor with the principal debtor without the 
 consent of the surety, must be upon a vaUd consideration, such 
 as will preclude the creditor from enforcing the debt against 
 the principal debtor." Ohnstead v. Lattimer, 158 N.Y. 313. 
 
 Q. A and B, who were in business as copartners, agreed 
 upon a dissolution of their business, wherein B was to take all 
 the firm's property and pay all the firm's debts. C, a firm 
 creditor who knew of the dissolution, took B's negotiable 
 promissory note payable in two months, as full settlement of a 
 firm debt. B was at that time solvent. The note not being 
 paid at maturity, and B becoming insolvent, C returned the 
 note to B and brought suit against A and B as copartners on 
 the original debt. What do you say as to the liability of A, 
 and can C recover against him? 
 
 A. C cannot recover against A, as he became a surety 'by the 
 dissolution agreement, and he became released by the extension 
 of time granted. "Where one of two copartners purchases the 
 interest of the other in the partnership property, and assumes 
 and agrees to pay the partnership debts, as to such debts the 
 former becomes in equity the principal debtor and the latter a 
 surety; and this relationship a firm creditor having notice of the 
 agreement is bound to observe." Colgrove v. Tallman, 67 
 N. Y. 95. And an extension of the time of payment of a debt 
 granted by the creditor to a principal debtor acts as a discharge 
 of a surety of the debt, from his liability thereon. Millerd v. 
 Thorn, 56 N. Y. 402. 
 
 Q. A, who is surety for B, requests C, the creditor, to sue B, 
 the principal debtor, but the creditor neglects to do so. Two 
 years thereafter the creditor sues, but the debtor is then 
 insolvent. C then brings action against A to enforce his 
 liability as surety, A sets up as a defense his request to sue. 
 Judgment for whom and why? 
 
SURETYSHIP AND GUARANTY 375 
 
 A. Judgment for A. A surety may require the creditor to 
 proceed against the principal and enforce collection of his 
 demand by action if not otherwise paid, and a failure to so 
 proceed within a reasonable time will operate to discharge the 
 surety if he suffers injury by such delay. Solvency of the 
 principal at the time of the demand to sue, and his subsequent 
 insolvency after neglect to institute suit will discharge the 
 surety from his obligation. But the notice to the creditor must 
 be clear and explicit, and he must be given to understand that 
 he is required to sue, otherwise the surety will not be dis- 
 charged. A mere notice to collect would not be sufficient. The 
 notice by the surety to the creditor should clearly inform him 
 that he is required to take proceedings in the courts to enforce 
 the obligation. Pain v. Packard, 13 Johns. 174; Goodwin v. 
 Simonson, 74 N. Y. 133; Coykendall v. Constable, 48 Hun, 
 360, aff'd in 117 N. Y. 627; Hunt v. Purdy, 82 N. Y. 486. 
 
 Q. A is surety for the firm of B and C on a bond to the 
 extent of their purchases. Without A's knowledge another 
 partner is taken into the firm, and subsequently A is sued on the 
 bond. Can he be held liable? If so, why so? If not, why not? 
 
 A. A cannot be held Uable as he did not bind himself as 
 surety for the new firm. "In the absence of terms in a guar- 
 anty given for a partnership, showing that the parties intended 
 that it should survive changes in the firm, the guaranty termi- 
 nates with the existence of the firm for which it was given, and 
 does not continue for the benefit of any firm or party succeeding 
 to its business." Bennett v. Draper, 139 N. Y. 266. 
 
 Q. A became surety for B who was indebted to C in the sum 
 of $2,000. C also had as security for the debt some bonds of the 
 X Trust Company. When the debt came due B tendered to C 
 the amount of the indebtedness, but as C did not need the 
 money, he told B not to pay then. Thereafter the bonds be- 
 came worthless and B insolvent. After tendering the bonds 
 to A, C demanded payment of the debt from him. Upon the 
 above facts can C recover from A? Answer fully. 
 
376 
 
 STJBETYSHIP AND GUABANTY 
 
 A. A is released from liability. A surety cannot be held 
 liable for nonperformance of his contract, if it has resulted from 
 a request by the creditor to the principal not to pay the debt 
 at the time, when it became due, as this is a fraud upon the 
 surety. Sailly v. Elmore, 2 Paige, 497; Lynch v, Reynolds, 
 16 Johns. 41. 
 
 Q. A was the guarantor of the payment of rent by B under a 
 lease of certain premises from C. There was a clause in the 
 lease to the effect that at the expiration of the lease which was 
 for two years, B, the lessee, had the privilege to renew said 
 lease upon thirty days' notice to the lessor. B notified C in 
 proper time and C thereupon indorsed renewal for three years 
 upon the lease. There was a default in the payment of the rent 
 for the extended time, and C brings action against A on the 
 guaranty. A defends on the ground that he was only liable for 
 the term of the lease. Judgment for whom and why? 
 
 A. Judgment for A as he was only liable for the rent accruing 
 during the term given in the original lease, and not for that 
 which might fall due under any renewal thereof which B might 
 elect to take. Where a surety has contracted for a definite 
 term he cannot be held liable for defaults occurring after the 
 time has expired. Strict rules of construction are applied in 
 favor of the surety. "This lease does not contain a continuing 
 guaranty for payment by the surety; it is not so written in 
 words and we think is not open to a construction binding the 
 surety for a term to be named in a 'renewal.' (Rutgers v. 
 Hunter, 6 Johns. Ch. 218.) The surety did not stipulate or 
 covenant that his liability should continue over a three years' 
 longer term if the tenant elected to take and receive a renewal." 
 Knowles v. Cuddeback, 19 Hun, 593. See also Hamilton v. 
 Rensselaer, 43 N. Y. 244. 
 
 Q. A and B, husband and wife, executed a mortgage to C for 
 $5,000 as security for a pre-existing debt of A's. The mortgage 
 is given on a piece of property belonging to A. A fails to pay 
 the mortgage debt at maturity. C forecloses and the property 
 
SURETYSHIP AND GUARANTY 377 
 
 is sold by order of the court, the amount realized being just 
 sufficient to pay the mortgage and costs. B demands certain 
 bonds which were held by C as security for the debt previous to 
 the giving of the mortgage. C refuses to comply with the 
 demand. What are the rights of the parties? 
 
 A. B has no rights to the bonds, she, merely having re- 
 leased her dower in the mortgaged premises, is not in the posi- 
 tion of a surety, and therefore is not entitled to the right of 
 subrogation. "She cannot be treated as the surety of her 
 husband, because she joined with him in a mortgage of his 
 lands; she can only release her dower, but is entitled to dower 
 in the equity of redemption." Hawley v. Bradford, 9 Paige, 
 200. See also Durnherr v. Rau, 135 N. Y. 222. 
 
 Q. A was the principal debtor and B the surety on an obli- 
 gation held by C. C had collateral given him by A to further 
 secure the debt. On A's default, B, the surety, pays the debt. 
 C in the meantime has lost the collateral. B consults you as 
 to his rights. What would be your advice? 
 
 A. B can recover the value of the collateral from C. "A 
 creditor who by himself or by his agents, so deals with securi- 
 ties to which a surety may be entitled by way of subrogation, 
 as to lose or destroy them is liable for the value of the securities 
 to the surety paying the debt, or whose property is resorted to 
 for the purpose of securing payment thereof." Stembach 
 V. Friedman, 34 App. Div. 534. 
 
 Q. A was surety for the faithful performance of a contract 
 by B with C. B gives C certain bonds as secm-ity for the debt. 
 At the maturity of the debt, B failing to pay, C sues A for the 
 amoimt of the debt, and A pays the same. C thereupon re- 
 tixmed the bonds to B, who sold the same and is now insolvent. 
 A claims the securities or their value from C, who informs him 
 that he has surrendered them to B. What are the rights of the 
 parties? 
 
 A. A is entitled to the securities by reason of his having 
 
378 
 
 SURETYSHIP AND GUARANTY 
 
 paid the debt, by virtue of the right of subrogation. C having 
 surrendered the securities, is liable for their value to A. "The 
 rule that a surety is discharged pro tanto through the surrender 
 of the securities by the creditor, does not rest on contract, 
 but upon the equitable principle that the property of the debtor 
 pledged for the payment of the debt, should be apphed on the 
 debt. In such a case, the surety is discharged to the extent he 
 is injured." State Bank v. Smith, 155 N. Y. 185. 
 
 Q. A buys a suit of clothes from a tailor, on one month's 
 credit. Afterwards B writes the tailor that he will pay for the 
 clothes if A does not. Is this promise binding? 
 
 A. No, for a guaranty being a contract to answer for the debt, 
 default or miscarriage of another, must have a consideration 
 to support it. If the debt of the principal debtor be pre-existing, 
 then there must be a new and distinct consideration to sustain 
 the promise of the guarantor. Where the guaranty is made 
 subsequent to the creation of the debt and was not an induce- 
 ment to it, the consideration of the original debt will not sup- 
 port it, and so there must be some further consideration having 
 an immediate respect to such liabihty, and it is sufficient that 
 there be something moving towards the principal debtor. Mc- 
 Naught V. McLaughry, 42 N. Y. 22; Harrington v. Brown, 77 
 N. Y. 72. 
 
 Q. A buys a bill of goods from B. At the same time, C 
 writes on the back of the bill that he guarantees the collec- 
 tion of the within bill. Upon default by A, B sues C for the 
 amount of the bill. C defends on the ground that there was no 
 consideration for his promise. Is his defense good? 
 
 A. No. The consideration supporting the sale is sufficient to 
 support the guaranty. Leonard v. Vredenburg, 8 Johns. 38. 
 "Where a contract of guaranty is entered into concurrently 
 with the principal obhgation, a consideration which supports the 
 latter, supports the former and the consideration need not be 
 expressed in the guaranty, but may be shown by parol." 
 Bank v. Coit, 104 N. Y. 532. 
 
SUEETYSHIP AND GUARANTY 379 
 
 Q. A goes to a jewelry store to purchase a watch on credit. 
 The jeweler, not knowing A, refuses to give it to him, where- 
 upon B, who happens to be in the store at the time, says he will 
 pay for it if A does not. A fails to pay, and the jeweler sues B, 
 who sets up the Statute of Frauds as a defense. Is this defense 
 good? 
 
 A. The defense is good, as the promise here was clearly one 
 to answer for the debt, default or miscarriage of another, or 
 in other words a guaranty, which in order to be binding must 
 be in writing and subscribed by the party to be charged (the 
 guarantor), according to sec. 31 of the Personal Property Law 
 (Consohdated Laws, chap. 41), which in part is as follows: 
 "Every agreement, promise or undertaking is void, unless it 
 or some note or memorandum thereof be in writing, and sub- 
 scribed by the party to be charged therewith, or by his lawful 
 agent, if such agreement, promise or undertaking. 2. Is a 
 special promise to answer for the debt, default or miscarriage 
 of another person." 
 
 Q. A hires B, a contractor, to build a certain house for 
 him. The workmen, becoming dissatisfied, go upon a strike, 
 and A, being anxious to have his house finished in the fall, 
 tells the workmen that if they wiU go on with the work, he will 
 see them paid. The men comply with his request, and upon 
 completion of the work bring suit against him. on his promise. 
 A sets up the Statute of Frauds as a defense. Is the defense 
 good? 
 
 A. No. " A promise made by the owner of a house, which a 
 contractor was engaged in constructing, to workmen employed 
 by the contractor that if the workmen will proceed with then- 
 work, the owner would seem them paid, is an original under- 
 taking and is not within the Statute of Frauds, notwithstand- 
 ing the fact that the Uability of the contractor to the workmen 
 is not affected thereby." Almond v. Hart, 46 App. Div. 431. 
 "An oral promise by officers of a corporation which was inter- 
 ested in a building under construction by an independent con- 
 
380 SURETYSHIP AND GUARANTY 
 
 tractor, to pay for building material if furnished to the con- 
 tractor, is void under the Statute of Frauds." Roscoe Liunber 
 Co. V. Reynolds, 124 App. Div. 539. In this case the court 
 distinguishes it from Almond v. Hart, supra, by saying, "There 
 the promisors were the owners of the building and the promise 
 was an original undertaking, while in the case at bar defend- 
 ants were merely the officers of a corporation which had an 
 interest in the building; they undertook by a collateral promise 
 to answer for the debt of a third person; it was not their debt, 
 and the same would have been true if the indebtedness had been 
 that of the corporation of which they were officers." 
 
 Q. A is about to contract with C ; the latter will not contract 
 unless B will become a surety for A. B will not go surety for A, 
 unless D will agree to indemnify him against any loss. The 
 agreement between B and D is by parol. B, who is obliged 
 to perform, brings action against D, who sets up the Statute 
 of Frauds. Is the defense maintainable on that ground? 
 
 A. No, as this is an original undertaking. A verbal promise 
 by one person to indemnify another for becoming a guarantor 
 for a third person, is not within the Statute of Frauds, and need 
 not be in writing, and the assumption of the liability is a siiffi- 
 cient consideration for the promise. Chapin v. Merrill, 4 
 Wend. 657; Sanders v. Gillespie, 59 N, Y. 250; Tighe v. Mor- 
 rison, 116 N. Y. 263; Jones v. Bacon, 145 N. Y. 446. 
 
 Q. A purchased goods from B, who relied upon an oral 
 promise of C that if A did not pay for the goods, C would pay 
 for them out of money in his hands belonging to A. A does not 
 pay for the goods, and B looks to C for payment. Prior to this, 
 C had given back the money belonging to A. What are the 
 rights of the parties? 
 
 A. B can recover from C, as the promise here is not within 
 the Statute of Frauds. "When a debtor puts a fund into the 
 hands of the promisor, either by absolute transfer, or upon a 
 trust, to pay the debts, the promise of the latter to pay the 
 same is not within the Statute of Frauds. The party making 
 
SURETYSHIP AND GUARANTY 381 
 
 the proroise holds the funds of the debtor for the purpose of 
 paying his debts, and as between him and the debtor, it is 
 his duty to pay it, in substance, he promises to pay his own 
 debt, and not that of another." Belknap v. Bender, 75 N. Y. 
 451. 
 
 (Note.) The fact that the debtor has placed property in the hands of 
 another to enable him to raise the means of paying the debt, or to indemnify 
 him if he should choose to pay it out of his own means, does not take a verbal 
 promise by him to the creditor, to pay the debt, out of the Statute of Frauds. 
 The distinction must be drawn between the giving of property and the giving 
 of money to another; a promise to pay before the property given has been 
 converted into money, is within the Statute of Frauds. Mallory v. Gillett, 
 21 N. Y. 412; Ackley v. Parmenter, 98 N. Y. 425; White v. Rintoul, 108 N. 
 Y. 222; Mechanics' Bank v. Stettheimer, 116 App. Div. 198. 
 
 Q. A sells B a horse for $100, taking at the time a note of C 
 for the amount, which B orally agreed to pay if C did not. The 
 note was not paid by C. B is sued on the oral promise, and 
 sets up the Statute of Frauds as a defense. Is the defense 
 good? 
 
 A. The promise was an original undertaking. There was a 
 new and distinct consideration, independent of the debt of the 
 maker, and one moving between the parties to the new promise. 
 In such cases, where the party undertakes for his own benefit, 
 and upon a full consideration received by himself, the promise 
 is not within the statute. Johnson v. Gilbert, 4 Hill, 178. "In 
 mere form, it was certainly a collateral undertaking, because 
 it was a promise that another person should perform his ob- 
 ligation, but looking at the substance of the transaction, we 
 see that, the defendant paid in this manner a part of the price 
 of a horse sold to himself. In a sense merely formal, he agreed 
 to answer for the debt of C. In reality, he undertook to pay 
 his own vendor so much of the price of a chattel, unless a third 
 person should make payment for him, and thereby discharge 
 him." Selden, J., in Cardell v. McNeil, 21 N. Y. 336; Bruce 
 V. Burr, 67 N. Y. 237; Milks v. Rich, 80 N. Y. 269. 
 
CHAPTER XVII 
 
 Torts 
 
 Q. A assaults B and is arrested and indicted for the same. 
 B then brings an action against A to recover damages for the 
 assault. A defends on the ground that the civil action is merged 
 in the criminal prosecution. Is A's defense good? 
 
 A. A's defense is not good. Section 1899 of the Code of Civ. 
 Pro. provides as follows: "Where the violation of a right admits 
 of a civil and also of a criminal prosecution, the one is not 
 merged in the other." Newton v. Porter, 5 Lansing, 416; People 
 v. Snyder, 90 App. Div. 423. 
 
 Q. A receives personal injuries causing his death from the 
 negUgence of B's servant. The personal representatives of A 
 bring action against B to recover damages. After the summons 
 had been served and before the trial, B dies. The representa- 
 tives of A then make a motion to have B's representatives 
 substituted as defendants in place of B. What should be the 
 decision of the court? State your reasons. 
 
 A. The court should deny the motion, as the cause of action 
 does not survive the death of the wrongdoer. A cause of action 
 for negligence resulting in death, given by statute to the repre- 
 sentatives of the decedent, is abated by the death of the wrong- 
 doer. The action cannot be maintained against the representa- 
 tives of the wrongdoer. Heggerich v. Keddie, 99 N. Y. 258. 
 See sec. 120, Decedent Estate Law (Consolidated Laws, chap. 
 13, Laws of 1909, chap. 18). 
 
 (Note.) "A cause of action for fraud and deceit survives the death of the 
 
 defendant and may be continued against his executors. The test as to 
 
 whether an action survives the death of a party is whether or not the injury 
 
 complained of was to pecuniary interests. It is immaterial whether or not 
 
 382 
 
TORTS 383 
 
 the wrongdoer profited by the wrong." Meyer v. Ertheiler, 144 App. Div. 
 158; 17th Ward Bank v. Webster, 67 App. Div. 228; Keeler v. Dunham, 114 
 App. Div. 94- Haight v. Hoyt, 19 N. Y. 465. 
 
 Q. A, B and C were sued by D for jointly assaulting him. 
 After issue was joined and before trial, A paid D $500 in satis- 
 faction of his wrongful act, taking back a release and discon- 
 tinuance of the action as against himself, and which release 
 contained the following: "the execution of this instrument shall 
 not affect any right or cause of action of the party of the second 
 part against any person not named therein." At the trial, 
 these facts being proven, counsel for B and C moved to dismiss 
 the action against them. The motion was denied and the case 
 went to the jmy which gave a verdict against B and C, They 
 appeal from the judgment. What should be the decision on 
 appeal? State your reasons. 
 
 A. The judgment should be affirmed. While it is true that 
 a release, under seal of a claim given to one joint tort feasca" 
 operates as a release of all on a theory that a party is entitled 
 to but one satisfaction for the injmy sustained by him (Barrett 
 V. third Av. R. R. Co., 45 N. Y. 628, 635 and cases there cited), 
 yet where the release contains an express reservation of the 
 right to sue the other tort feasors, it is not a release, but in effect 
 is a covenant not to sue the person released, and a covenant 
 not to sue does not release a joint tort feasor. The release must 
 be construed according to the clear intentions of the parties, 
 and where it contains a reservation the other tort feasors are 
 not discharged. Kirby v. Taylor, 6 Johns. Ch. 250; Irvin v. 
 Milbank, 56 N. Y. 635. "Nor will the defendants be relieved 
 from liability upon the ground that the so-called release was a 
 settlement of the entire claim, and that its effect was to dis- 
 charge them upon the theory that all the defendants were joint 
 tort feasors, since assuming them to be such, the instrument 
 containing an express reservation of the right to sue any person 
 not named therein, is in effect a covenant not to sue, and a 
 covenant not to sue does not release joint tort feasors." Gil- 
 bert V. Finch, 173 N. Y. 455. "One who has been injured by 
 the joint wrong of several parties may recover his damages 
 
384 TORTS 
 
 against either or all; but although there may be several suits 
 and recoveries, there can be but one satisfaction. Where a 
 release contains no reservation, it operates to discharge all the 
 joint tort feasors; but where the instrument expressly reserves 
 the right to pursue the others, it is not technically a release, 
 but a covenant not to sue and they are not discharged." Walsh 
 V. R. R., 204 N. Y. 58. 
 
 Q. A brings an action against B, setting forth in his com- 
 plaint all the necessary allegations constituting his Uability for 
 personal injuries for negligence to C, and then an allegation of 
 the assignment of that cause of action by C to A, the plaintiff. 
 B demiu-s to A's complaint on the ground that it does not 
 state facts sufficient to constitute a cause of action. Judgment 
 for whom and why? 
 
 A. Judgment for B, as the claim was not assignable. Section 
 41 of the Personal Property Law (Laws 1909, chap. 45) provides 
 in part as follows: "Any claim or demand can be transferred 
 except in one of the following cases: 1. Where it is to recover 
 damages for a personal injury, or for a breach of promise to 
 marry." Davids v. B. H. R. Co., 104 App. Div. 23, aff'd in 182 
 N. Y. 526. 
 
 Q. A boy in the employ of A quarrelled with B on the street. 
 B picked up a club and chased the boy who took refuge in A's 
 store. In trying to save himself, the boy threw a valuable 
 clock from the counter, destroying it. Has A a cause of action 
 against B for the value of the clock? State your reasons. 
 
 A. Yes, as the act of B was the proximate cause of the de- 
 struction of the clock. "One who does an illegal or mischievous 
 act, which is likely to prove injurious to others, is answerable 
 for the consequences which may directly and naturally result 
 from his conduct, though he did not intend to do the partic- 
 ular injury which followed." Vandenburg v. Truax, 4 Denio, 
 464; Dickson v. McCoy, 39 N. Y. 400. 
 
 Q. A was driving along the street, when a spark from an 
 
TOETS 385 
 
 elevated train fell upon his horse causing it to run away. A, 
 being unable to control the horse, turned it against the curb- 
 stone, hoping to check it in that way. The wagon passed over 
 the curb, A being thrown out and hurt, and B, who was stand- 
 ing on the walk, was knocked down, and severely injured. What 
 are the rights of the parties? 
 
 A. Both A and B have a right of action against the Railroad 
 Co., as the falling of the spark was the proximate cause of then- 
 injuries. "The true rule is, that what is the proximate cause 
 of an injury is ordinarily a question for the jury. It is not a 
 question of science or legal knowledge. It is to be determined 
 as a fact, in view of the circumstances attending it. The pri- 
 mary cause may be the proximate cause of a disaster though 
 it may operate through successive iastruments, as an article 
 at the end of a chain may be moved by a force applied at the 
 other end, that force being the proximate cause of the move- 
 ment, or as in the oft-cited case of the squib thrown in the 
 market place. The question always is, was there an unbroken 
 connection between the wrongful act and the injury, a continu- 
 ous operation? Did the facts constitute a continuous succes- 
 sion of events, so linked together as to make a natural whole, 
 or was there some new and independent cause intervening be- 
 tween the wrong and the injury? " Lowry v. Manhattan El. 
 Ry. Co., 99 N. Y. 158; Countryman v. R. R., 166 N. Y. 201; 
 Wood V. R. R., 179 N. Y. 557. 
 
 Q. A, an infant, hired a horse from B. The infant drove the 
 animal with such violence and otherwise cruelly treated it that 
 it died in consequence thereof. The owner brings action against 
 the infant. Can the action be maintained? If so, upon what 
 theory? If not, why not? 
 
 A. Yes, the infant is liable in tort. Where an infant takes 
 a horse on hire, and willfully and intentionally injures the animal 
 by driving him with such violence that he dies, this amounts 
 to an election on the part of the infant to disaffirm the contract 
 of hiring, and an action in tort lies against him. While an in- 
 25 
 
386 
 
 TORTS 
 
 fant is not liable on contract, he is nevertheless liable for his 
 torts. It is essential to hold an infant in a case like this to show 
 that the injury to the horse was willful and intentional. A mere 
 lack of moderation in driving and a failure to observe due care, 
 where there is no willful and intentional injury, will not suffice 
 to render an infant liable. A bare neglect to protect the animal 
 from injury, and to return it at the time agreed upon is not 
 sufficient. The infant cannot be held liable if the injury com- 
 plained of occurred in the act of driving the animal through 
 his unskillfulness and want of knowledge, discretion and judg- 
 ment. Campbell v. Stakes, 2 Wend. 137; Hunger v. Hess, 28 
 Barb. 75; Moore v. Eastman, 1 Hun, 578; Young v. Muhling, 
 48 App. Div. 617. 
 
 Q. In an action for conversion of personal property, the 
 defendant sets up the defense of insanity. Can he succeed? 
 State whether or not insanity is a defense to an action in tort. 
 
 A. The defendant cannot plead as a defense to an action for 
 a tort, as the conversion of personal property, his insanity. 
 "The general rule is that an insane person is just as responsible 
 for his torts as a sane person, and the rule applies to all torts; 
 except perhaps those in which malice, and, therefore, intention, 
 actual or imputed, is a necessary ingredient, like slander, libel 
 and malicious prosecution. In all other torts intention is not an 
 ingredient, and the actor is responsible, although he acted with 
 a good and even laudable purpose, without any malice. The 
 law looks to the person damaged by another and seeks to make 
 him whole, without reference to the purpose or condition, 
 mental or physical, of the person causing the damage. The 
 liability of a lunatic for his torts, in the opinion of the judges, 
 has been placed upon several grounds. The rule has been 
 invoked that where one of two innocent persons must bear a 
 loss, he must bear it whose act has caused it. It is said that 
 public poUcy requires the enforcement of the liability, that the 
 relatives of a lunatic may be under inducement to restrain him, 
 and that tort feasors may not simulate or pretend insanity to 
 defend their wrongful acts causing damages to others. The 
 
TOBTS 387 
 
 lunatic must bear the loss occasioned by his torts, as he bears 
 his other misfortunes, and the burden of such loss may not be 
 put upon others." Earl, J., in WiUiams v. Hays, 143 N. Y. 442. 
 
 Q. A beats his wife, severely injuring her. She brings action 
 against him to recover $1,000 damages for the assault. The 
 husband demurs. Judgment for whom and why? 
 
 A. Judgment for the husband. A wife cannot maintain an 
 action against her husband to recover damages for an assault 
 and battery which he has committed upon her. The Domestic 
 Relations Law does not give her this right. Abbe v. Abbe, 22 
 App. Div. 483. 
 
 Q. A corporation is sued for malicious prosecution by A. 
 The corporation demurs. Judgment for whom and why? 
 
 A. Judgment for A. A corporation is Uable for malicious 
 prosecution. A corporation is liable for its' wrongful acts to 
 almost the same extent as a natural person. Morton v. Ins. 
 Co., 34 Hun, 366, aff'd in 103 N. Y. 645; WiUord v. Hohnes, 
 142 N. Y. 492; Scott v. Dennett Co., 51 App. Div. 326. 
 
 (Note.) The decision of Eichner v. Bowery Bank, 24 App. Div. 63, is 
 called attention to. It was there held that a corporation is not liable for a 
 slander committed by its agents on the ground stated that "a corporation 
 itself could not talk." Slander is a voluntary tortious act of the speaker 
 and therefore the agents alone are liable. This is probably the only case 
 of tort in which a corporation has been held not liable. See Townshend on 
 Slander and Libel, sec. 265, and Odgers on Libel and Slander, page 368. 
 
 Q. A municipal corporation, acting under and pursuant to 
 the provisions of its charter, excavated in and upon one of its 
 public streets in order to properly grade the same. In so doing, 
 it dug away a part of a natural bank extending into the high- 
 way, which supported A's land, by reason of which it lost its 
 support and fell with certain outhouses, shrubbery and fences 
 into the excavation in the highway, to A's damage in the sum 
 of $10,000. There was no negligence or want of care in the 
 execution of the work. The question arises as to the liabiUty of 
 the corporation. What do you say? Give your reasons. 
 
388 TORTS 
 
 A, The corporation is not liable. "Municipal corporations 
 engaged in the performance of public works authorized by law, 
 are not liable for damages occasioned thereby to others, where 
 private property is not directly encroached upon, imless such 
 damages are caused by misconduct, negligence or xmskillful- 
 ness." Atwater v. Trustees, 124 N. Y. 602; Springfield Ins. 
 ,Co. V. Village of Keeseville, 148 N. Y. 46; Chase-Hibbard Co. 
 V. City of Elmira, 207 N. Y. 460. 
 
 Q. The X Co., the owner of certain premises in the City of 
 New York, by reason of its heavy shipping, has broken several 
 holes on the sidewalk in front of the same. A, a pedestrian, 
 without negligence on his part, was injured by falling into one 
 of the holes on the sidewalk. He brings suit against the X Co., 
 who defend on the groimd that the city is liable. Is this 
 defense good? 
 
 A. No. A can recover from the X Co. as the defects in the 
 sidewalk were caused by the company. In MuUins v. Siegel 
 Co., 183 N. Y. 109, the court said: "The principles of law 
 apphcable to the obligation of abutting owners on city streets 
 to keep the sidewalk in a safe condition for pedestrians are well 
 settled. The abutting owner is not bound to keep the sidewalk 
 in repair, unless by virtue of the requirements of the statute, 
 and is not responsible to travelers for defects therein not caused 
 by himself." See also English v. Kwint, 140 App. Div. 509. 
 
 Q. A, without authority from the municipality, piles bricks 
 in the street. By reason of not keeping a light at the place dur- 
 ing the night, B, who was driving on the highway at night, was 
 injured without fault or negligence on his part. He brings an 
 action against the municipahty. What additional facts, if any, 
 must be shown to entitle him to recover? 
 
 A. He must show that the city had either actual or construc- 
 tive notice. "It is the duty of a municipal corporation to keep 
 its streets in a safe condition for public travel, and it is bound 
 to exercise reasonable diligence to accomplish that end; that 
 is so as well where an obstruction rendering travel unsafe is 
 
TORTS 389 
 
 caused by a third person, as where it is the act of the cor- 
 poration. Where, therefore, public or private improvements 
 are being made in a city street causing an obstruction, it is the 
 duty of the city to guard them so as to protect travelers on the 
 street from receiving injuries therefrom. The municipality is 
 not absolved from liability by the fact that the obstruction was 
 caused by a contractor, who, by his contract, is bound to prop- 
 erly guard it or place warning lights. Plaintiff must show that 
 it was left unguarded by the defendant after notice of its 
 existence." Pettengill v. City of Yonkers, 116 N. Y. 558; 
 Deming v. Ry. Co., 169 N. Y. 1; Scott v. Village of Saratoga, 
 199 N. Y. 184. 
 
 Q. A is run over by an ambulance belonging to the Depart- 
 ment of Charities of the City of New York, and sustains in- 
 juries which cause his death. His representatives bring suit 
 against the city. Can the action be maintained? Give your 
 reasons. 
 
 A. No. The city is not liable. "Where by the act of the 
 legislature, a municipal corporation is required to elect or 
 appoint an officer to perform a public duty laid not upon it, but 
 upon the ofl&cer in which it has no private interest, and from 
 which it derives no special benefit, such officer is not a servant 
 or agent of the municipality, and for his negligence or want of 
 skill in the performance of his duty or for that of a servant 
 whom he employs, it is not liable; and this although the officer 
 or servant has in charge, and the negligence is in use of the 
 corporate property. The duties imposed upon the commis- 
 sioner of charity for the City of New York by statute are public 
 in their character, and from their performance no special 
 corporate benefit is acquired. Such officers, therefore, or their 
 servants are not agents of the city for whose negligent acts it is 
 liable." Maxmillian v. Mayor, 62 N. Y. 160; Matter of Rey- 
 nolds, 202 N. Y. 441. 
 
 (Note.) In Missano v. Mayor, 160 N. Y. 123, it was held that the City of 
 New York is liable for the negligent acts of its employees in its department 
 of street cleaning, on the ground that the city acts in the discharge of a spe- 
 
390 TORTS 
 
 cial power granted to it by the legislature in the exercise of which it is a legal 
 individual, and that the duty of removing ashes, garbage, etc., is a private 
 and not a governmental function. See also Quill v. Mayor, 36 App. Div. 476; 
 Ryan v. City of N. Y., 177 N, Y. 271; McMullen v. City of Middletown, 
 187 N. Y. 45. 
 
 Q. A is injiu-ed in an accident and is taken to a charity hos- 
 pital for treatment. Through the negligence of the physician 
 in charge, gangrene sets in on the wounds, and as a conse- 
 quence thereof A dies. His representatives bring action against 
 the hospital. Can they recover? 
 
 A. No. "A public hospital or asylum is liable for the tort 
 or negligence of an oflBcer or servant only when such corpora- 
 tion has been guilty of negligence in selecting such officer or 
 servant. When the corporation has used due care in selecting 
 the servant or officer, it is not liable for his subsequent act, 
 unless prior to the occurrence of such act, knowledge of the 
 unfitness and incapacity of such officer or servant was com- 
 municated to and fully brought home to the corporation." 
 Joel V. Hospital, 89 Hun, 23; Collins v. N. Y. P. G. Med. School, 
 59 App; Div. 65; Hordem v. Salvation Army, 199 N. Y. 237. 
 
 Q. A enters a certain charity hospital and agrees to pay $25 
 a week for treatment, the hospital also agreeing to furnish a 
 trained mu-se. Through the negligence of the nurse furnished, 
 A's illness becomes aggravated, and in consequence thereof 
 she is compelled to undergo an operation involving the expen- 
 diture of a large sum of money. A brings action against the 
 hospital. Can the action be maintained? If so, upon what 
 theory? If not, why not? 
 
 A. The action can be maintained on the theory of a breach 
 of contract. It was so held in Ward v. St. Vincent Hospital, 
 39 App. Div. 624, where it was said that: "A contract made by 
 a charity hospital to receive a patient into the hospital and to 
 furnish her with a skillful trained nurse for a certain sum per 
 week, is not beyond its powers. The patient may, in an action 
 against the hospital to recover damages for breach of such con- 
 
TORTS 391 
 
 tract, obtain indemnity for injuries sustained by the negligence 
 of its servants." 
 
 Q. A, the owner of a building, makes an agreement with B, 
 a contractor, to repair the roof of his house for a certain sum. 
 To do this it is necessary to erect a scaffold over the street. 
 A workman of B carelessly lets fall a hammer and injures C 
 who is passing on the street. What are the rights of C? 
 
 A. C can bring an action against B, but has no right of action 
 against A. "Where a person is employed to perform a certain 
 kind of work in the nature of repairs or improvement to a 
 building by the owner thereof which requires the exercise of 
 skill and judgment as a mechanic, the execution of which is 
 left entirely to his discretion, with no restriction as to its 
 exercise and no limitation as to the authority conferred in 
 respect to the same, such person does not occupy the relation 
 of a servant under the master, but he is an independent con- 
 tractor, and the owner is not liable for his acts or the acts of 
 his workmen who are negligent and the cause of injury to an- 
 other." Hexamer v. Webb, 101 N. Y. 377. "The rule that 
 where the relation of master and servant does not exist, but 
 injury results from negligence in the performance of work by a 
 contractor, the party with whom he contracts is not respon- 
 sible for his negligence or that of his servants, is well established 
 by the authorities in this state." Kelly v. Mayor, etc., 11 N. Y. 
 432; King v. R. R. Co., 66 N. Y. 181; Herrington v. ViUage of 
 Lansmgburgh, 110 N. Y. 145; Roemer v. Striker, 142 N. Y. 134. 
 
 (Note.) "There are certain exceptions to the independent contractor 
 rule; as 1. Where the employer personally interferes with the work, and the 
 act performed by him occasioned the injury; 2. Where the thing contracted 
 to be done is unlawful; 3. Where the acts performed create a public nuisance; 
 and 4. Where an employer is bound to do a thing eflSciently by statute, and 
 an injury results from its inefficiency." Berg v. Parsons, 156 N. Y. 109. 
 See also Engel v. Eureka Club, 137 N. Y. 100; Burke v. Ireland, 166 N. Y. 
 305; Parson v. Johnson, 208 N. Y. 337. 
 
 Q. B is a contractor building a house for A. B is short of 
 help, and borrows A's hired man and sets him at work on the 
 
392 TORTS 
 
 building. While at work he negligently lets fall a beam on C, 
 a stranger, who is free from contributory negligence, injuring 
 him. Who is liable, if anybody, to C? Give the general rule. 
 
 A. B is liable to C, because the hired man was the servant 
 of B at the time of the accident. "The doctrine of respondeat 
 superior applies only where the relation of master and servant 
 is shown to exist between the wrongdoer and the person sought 
 to be charged for the result of the wrong at the time and in 
 respect to the very transaction out of which the injury arose. 
 The fact that the party to whose wrongful or negligent act an 
 injury may be traced, was at the time in the general employ 
 and pay of another person, does not necessarily make the latter 
 responsible for his acts. The master is the person in whose 
 business he is engaged at the time, and who has the right to 
 control and direct his conduct. Servants who are employed and 
 paid by one person may, nevertheless, be ad hoc the servants 
 of another in a particular transaction, and that too, when their 
 general employer is interested in the work. When one person 
 lends his servant to another for a particular employment, the 
 servant, for anything done in that employment, must be dealt 
 with as the servant of the man to whom he is lent, although 
 he remains the general servant of the man who lent him." 
 Higgins V. W. U. Tel. Co., 156 N. Y. 75; Mclnemey v.D, & H. 
 C. Co., 151 N. Y. 411; Sexton v. R. R., 189 N. Y. 518. 
 
 Q. A instructs his coachman to shovel snow off the roof and 
 to be careful not to throw any of it on the passers-by in the 
 street. The coachman secures the assistance of a friend of his, 
 and leaves him for a few minutes. During the absence of the 
 coachman, the friend injures a passer-by on the street below 
 by throwing a quantity of snow and ice upon him from the 
 roof. Has the passer-by an action against anyone, and if so, 
 against whom? 
 
 A. He has an action against A. "One who directs his serv- 
 ant to remove snow and ice from the roof of his house, is re- 
 sponsible for an injury received by a passenger in the street 
 
TORTS 393 
 
 from such snow and ice, whether the negUgence was that of a 
 servant or a stranger whom he employed or who volunteered 
 to assist him." Althorf v. Wolf, 22 N. Y. 356; Kihoy v. D. & . 
 H. C. Co., 121 N. Y. 22; Spencer v. State of N. Y., 110 App. 
 Div. 587; EUefson v. Singer, 132 App. Div. 90. 
 
 (Note.) The rule is well stated in Gleason v. Amsdell, 9 Daly, 393, as 
 follows: "Where an injury arises through the negUgence of a servant, acting 
 within the scope of his authority, the act of the servant is deemed the act of 
 the master and he is answerable for it. He is answerable for the negligence of 
 one whom the servant employs by his authority, to aid the servant in the 
 employment of the master's business; and it is not necessary in such a case, 
 to show that such authority was expressly given; but it may be impUed from 
 the nature of the business, the course of trade and the circumstance of the 
 particular case." This was quoted with approval in Wooding v. Thorn, 148 
 App. Div. 24. Of course where the servant contrary to his master's instruc- 
 tions allows a third person to assist him, then the master is not responsible 
 for the acts of such third person. Long v. Richmond, 68 App. Div. 466. 
 
 Q. A, who is employed by B as driver for his milk wagon 
 during the week, went to his master's stable on Sunday and 
 took therefrom his master's horse and carriage. While driving 
 the same, he negligently runs over and injures C. C brings 
 action against B. Can he recover? 
 
 A. He cannot recover from B. "A master is not liable for 
 personal injuries sustained by a third person through the 
 negligence of his servant, unless the relation of master and 
 servant existed in respect to the very transaction out of which 
 the injiuy arose; therefore, for an injm-y caused by the negli- 
 gence of a servant without the authority and when not on the 
 business of the master, the master is not liable. In determining 
 whether a particular act is done in the covu-se of the servant's 
 employment it is proper first to inquire whether the servant 
 was at the time engaged in serving his master. If the act is 
 done while the servant is at liberty from service and pursuing 
 his own ends exclusively, there can be no question of the 
 master's freedom from all responsibility, even though the 
 injmy complained of could not have been committed without 
 the facility afforded to the servant by his relation to his master." 
 
394 TOKTS 
 
 Fish V. Coolidge, 47 App. Div. 159; Casey v. D. F. Machine 
 Co., 138 App. Div. 396; Freibauer v. Brady, 143 App. Div. 
 220; Wyllie v. Pahner, 137 N. Y. 248. 
 
 (Note.) "A master is liable for the acts of his servant within the general 
 scope of his employment, while engaged in the master's business, and done 
 with a view to the furtherance of the master's business and interest, whether 
 such act be done negligently, wantonly or even willfully." Levy v. Ely, 48 
 App. Div. 554. 
 
 Q. A driver is returning with his master's load from a ware- 
 house. On the way he meets a clerk of his master, who asks 
 him to go up the side street and get a personal package for him 
 (the clerk) ; he does so and while on the side street injures C. 
 What are the rights of the parties? State the general rule. 
 
 A. The master is not liable. "The departure of the driver 
 from the ordinary route to the stable for the purpose of doing a 
 favor for a coservant, as stated in the evidence, was clearly an 
 unauthorized deviation and not within the scope of his duty. 
 He cannot be said, within the authorities, to have been acting 
 in the service of the defendant while engaged in going for the 
 trunk and vaUse for his coservant and taking them to their 
 destination. The act was not only without authority, but also 
 without the knowledge or consent of the defendant or of any 
 superior officer of the driver. It is well settled that a master is 
 not hable for injuries sustained by the neghgence of his servant 
 while engaged in an unauthorized act beyond the scope and 
 duty of his employment, for his own or another's purposes, 
 although the servant is using the implements or property of the 
 master in such an unauthorized act." Cavanagh v. Dinsmore, 
 12 Hun, 465; Cosgrove v. Ogden, 49 N. Y. 255; Quinn v. 
 Power, 87 N. Y. 535; Smith v. R. R., 78 Hun, 524. 
 
 Q. A and B were employed by the X Ice Company to drive 
 their wagon and supply their customers with ice. On a certain 
 day they were sent with a load of ice to C who had ordered the 
 same, with instructions to proceed directly to his (C's) place of 
 business. On the way they stopped at D's store to sell him a 
 cake of ice for their own private gain. D's store was about six 
 
TORTS 395 
 
 blocks out of the direct route to C's place. After selling the 
 cake of ice to D, they immediately proceeded to C's place. 
 While on the way they negligently ran over and injured M. 
 M brings action against the company. Can he recover? State 
 your reasons. 
 
 A. Yes, as the accident did not occur during the deviation. 
 "It is the rule, no doubt, that a master is not necessarily re- 
 lieved from responsibility for an injury resulting from the 
 negUgence of a servant, simply because the servant is at the 
 time acting in disobedience to the master's orders. The ques- 
 tion in every case is whether the act he was doing was one in 
 prosecution of his master's business, not whether it was done 
 in accordance with his instructions. If the act was one, which, 
 continued until the termination, would have resulted in carry- 
 ing out the object for which the servant had been employed, the 
 master would be liable for whatever negligence might take place 
 during its performance, although the servant in doing it was not 
 obeying the instructions of the master, or although he had 
 deviated from the route prescribed by the master for the pur- 
 pose of doing some act of his own, yet with the intention at the 
 same time of pursuing his master's business. Within the rule 
 above cited the hability still continues, unless the deviation is 
 made not in the prosecution of the master's business, but for 
 some different and other purpose. That the fact that the 
 defendant's employees had, for purposes of their own, deviated 
 from the direct route in delivering the ice, did not of itself 
 relieve the master from liabiUty, although such Uabihty might 
 be suspended during the time the employee prosecuted their 
 own affairs, as a liability would attach again immediately after 
 the driver in prosecution of the master's business resumed his 
 course to the station." Geraty v. Nat. Ice Co., 16 App. Div. 
 174, aff'd in 160 N. Y. 658; Riegler v. Tribune Ass'n., 40 App. 
 Div. 327. 
 
 Q. A and B being engaged in an angry altercation, B stepped 
 into his office and brought out a gun which he aimed at A in an 
 excited and threatening manner, A being three or four yards 
 
396 TORTS 
 
 distant. B snapped the gun twice at A. A believed that the 
 gun was loaded. The gun was in fact not loaded and B knew 
 this. Has A a cause of action against B? 
 
 A. Yes. This is an assault, and there need be no injury to 
 constitute an assault. "An assault is an attempt or offer to 
 beat another without touching him. The least touching of 
 another's person, willfully or in anger, is a battery." 3 Bl. 
 Comm. 120. "An assault is an attempt with force or violence 
 to do a corporeal injury to another, and may consist of any act 
 tending to such corporeal injury, accompanied with such cir- 
 cumstances as denote at the time an intention coupled with the 
 present ability of using actual violence against the person." 
 Hays V. People, 1 Hill, 351; Bullock v. Babcock, 3 Wend. 391; 
 Johnson v. McConnell, 15 Hun, 295; People v. Moore, 50 
 Hun, 356. 
 
 Q. A strikes B with his fist. B immediately picks up a club 
 and beats A with it, severely injuring him. B brings action 
 against A to recover damages for assault and battery. Can he 
 recover? 
 
 A. No. "A party first attacked is not entitled to maintain 
 an action for assault and battery against the other party, if he, 
 the first party, exceeds the bounds of self-defense. Care must 
 be taken that the resistance does not exceed mere defense, so as 
 to become vindictive, for then the defender will himself become 
 the aggressor." Scribner v. Beach, 4 Denio, 450. The force 
 used must not exceed the necessity of the case. ElUot v. 
 Brown, 2 Wend. 499; Gates v. Lounsburg, 20 Johns. 427; 
 Evers v. People, 3 Hun, 716, afif'd in 63 N. Y. 625. 
 
 Q. A was bookkeeper and cashier for B. He collected certain 
 money from a customer of B's, and refused to give it up when 
 requested to do so by B, claiming that the sum was due to him 
 (A). B then attempted to take the money from A by force, 
 striking and knocking him down, thereby injuring him severely. 
 A brings action against B. Judgment for whom and why? 
 
TORTS 397 
 
 A. Judgment for A. "It is elementary that one may justify 
 an assault and battery in self-defense or in defense of his posses- 
 sion of real or personal property. But the general rule is, that a 
 right of property merely, not joined with possession, would not 
 justify the owner in assaulting to regain possession, though 
 possession is wrongfully withheld." Bliss v. Johnson, 73 N. Y. 
 529. "The law does not permit parties to take the settlement 
 of conflicting claims into their own hands. It gives the right of 
 defense, but not of redress. The circumstances may be ag- 
 gravating; the remedy of law may seem to be inadequate; but 
 still the injured party cannot be arbiter of his own claim. If 
 one has intrusted his property to another who afterwards 
 honestly, though erroneously, claims it as his own, the owner 
 has no right to retake it by personal force." Gyre v. Culver, 
 47 Barb. 592; Parson v. Brown, 15 Barb. 590; Filkins v. People, 
 69 N. Y. 106. 
 
 (Note.) The owner of real property cannot, by resorting to force, obtain 
 its possession from one wrongfully withholding the same from him. Resort- 
 ing to force, under such circumstances, is unlawful and the one in possession 
 may resist with force. Bristor v. Burr, 120 N. Y. 427; Brendlin v. Beers, 
 144 App. Div. 405. 
 
 Q. A sues B for false imprisonment. At the trial, the judge 
 charges the jury that the plaintiff in order to succeed must 
 establish the want of probable cause and malice, in addition 
 to the unlawful restraint. Is the charge sustainable on appeal? 
 
 A. No. "Even malicious motives and the absence of proba- 
 ble cause do not give a party arrested an action for false im- 
 prisonment. They may aggravate his damages, but they have 
 nothing whatever to do with the cause of action." Earl, J., 
 in Marks v. Townsend, 97 N. Y. 590. All that is necessary 
 to maintain an action for false imprisonment is unlawful re- 
 straint of one's person. Burns v. Erben, 40 N. Y, 466; Palmeri 
 V. Ry. Co., 133 N. Y. 261. 
 
 (Note.) "The distinction between false imprisonment and malicious prose- 
 cution is fundamental. They are made up of different elements enforced 
 by different forms of actions, are governed by different rules of pleading, 
 
398 TORTS 
 
 evidence and damages, and are subject to different defenses. False imprison- 
 ment has been well defined to be a trespass committed by one man against 
 the person of another by unlawfully arresting him and detaining him without 
 legal authority. (Addison on Torts, 3d Edition, page 552.) Where the de- 
 tention is illegal the action will he, without regard to the innocence of the 
 defendant in his intentions. (Snead v. Bonnbil, 166 N. Y. 325.) If the im- 
 prisonment is lawful it does not become unlawful because done with malicious 
 intent; if the conduct be unlawful, neither good faith nor provocation nor 
 ignorance of the law is a defense to the person committing the wrong, in a 
 civil as distinguished from a criminal proceeding. In an action for false im- 
 prisonment the essentials are: First, that plaintiff was arrested and detained 
 by defendant without process; second, that plaintiff was not guilty of the 
 offense for which he was arrested." Clarke, J., in Johnston v. Bruckheimer, 
 133 App. Div. 651. See also Grinnell v. Weston, 95 App. Div. 454. 
 
 Q. A has certain moneys in his house; he misses the same, 
 and suspecting B, his servant, of having taken the moneys, he 
 has him (B) arrested and indicted for larceny. The servant 
 alone had access to the room where the moneys were kept. On 
 the trial it appearing that the moneys were found, having been 
 misplaced, B was acquitted. He sues A for malicious prosecu- 
 tion. Can he recover? 
 
 A. No, for A had reasonable cause for instituting the prosecu- 
 tion. In order to maintain the action for malicious prosecution, 
 three things are necessary: 1. That the prosecution is at an 
 end and was determined in favor of the plaintiff. 2. Want of 
 probable cause. 3. Malice. "A real belief and reasonable 
 grounds for it, must concur to afford a justification. Good 
 faith alone is not sufficient." Famam v. Feeley, 56 N. Y. 
 451. 
 
 (Note.) ' ' To authorize a recovery in an action for mahcious prosecution in 
 bringing a civil action wherein the defendant was unsuccessful, clear and 
 satisfactory proof of all the fundamental facts constituting plaintiff's case 
 must be given. Costs awarded to a successful defendant in a civil action 
 are the indemnity which the law gives them for a groundless prosecution, 
 and actions for mahcious prosecution based thereon are not to beencouraged." 
 Ferguson v. Arnow, 142 N. Y. 580. 
 
 Q. A and B are husband and wife. C, the father of A, in- 
 duced him to leave his wife; A fiunishes her with necessaries, 
 
TORTS 399 
 
 but will not go back to her; she is thereby deprived of his 
 society. What action, if any, can B bring? 
 
 A. B can sue the father for the alienation of her husband's 
 affections. "A wife may maintain an action, under sec. 450 
 of the Code of Civ. Pro. in her own name and for her own bene- 
 fit, without joiniag her husband as a party, against one who has 
 enticed him from her, alienated his affection, and deprived her of 
 his society." Bennett v. Bennett, 116 N. Y. 584. See also Servis 
 V. Servis, 172 N. Y. 444. 
 
 Q. A persuades his daughter to leave her husband and hve 
 apart from him, on the ground that he believes it is not proper 
 for her to live with him, on account of statements which he has 
 heard concerning the husband's moral character, which state- 
 ments A hears from what he considers a reliable source, and 
 honestly believes them to be true. There was in fact no founda- 
 tion for the charges, and they were utterly false, but A acted in 
 good faith. Can the husband maintain an action against the 
 father for damages? 
 
 A. No, as the father acted in good faith. "It is well settled 
 that a husband may maintain an action for enticing away his 
 wife, or inducing her to live apart from him; and this, whether 
 the wrongdoer be the father of the wife or any other person. 
 When the conduct of the husband is such as to endanger the 
 personal safety of his wife, or is immoral and indecent, as to 
 render him grossly unfit for her society, so much so that she 
 would be justified in abandoning him, her parents have the 
 right to receive her into their house, and advise her to come 
 there and remain, and they will not be answerable in damages 
 to the husband. And the same doctrine is applicable to a case 
 where the advice is given by a parent, in the honest belief, justi- 
 fied by information received by him that such circumstances 
 exist, although the information proves subsequently unfounded. 
 It is sufficient for his protection, that he was warranted in such 
 belief and acted from pure motives." Bennett v. Smith, 21 
 Barb. 439; Smith v. Lyke, 13 Him, 204; HoUister v. Valentine, 
 69 App. Div. 588. 
 
400 TORTS 
 
 Q. A seduces B, a minor daughter of C. C brings action 
 against him to recover damages. At the trial, the father does 
 not show any actual loss of the daughter's services. B moves 
 to dismiss. What should be the ruling of the court? 
 
 A. Motion should be denied. An action may be maintained 
 by a father for seduction without proving any actual loss of 
 services; it is enough that the daughter be a minor residing 
 with her father, or that he has the right to command her serv- 
 ices. Although the action for seduction is founded upon the legal 
 fiction of the loss of services, the damages recoverable always 
 embrace injuries to the family reputation, etc. Hewitt v. 
 Prime, 21 Wend. 148; Badgley v. Decker, 44 Barb. 588; Inger- 
 son v. Miller, 47 Barb. 47; Lawyer v. Fletcher, 130" N. Y. 
 239. 
 
 (Note.) The father's right of action continues after the daughter has 
 become of age, if the relation of master and servant still exists between them. 
 If the daughter submits after her majority to her parents' exercising au- 
 thority over her, although not under an actual engagement to serve them, 
 the action is maintainable by the parent.. The sUghtest acts of service have 
 been held sufficient to constitute the relation of master and servant. The 
 rule as to damages is the same, whether the daughter be a minor or of full 
 age, and the plaintiff is not limited in his recovery to mere compensatory 
 damages, but may recover exemplary damages, where he is so connected 
 with her, as to be capable of receiving injury through her dishonor. Lipe v. 
 Eisenlord, 32 N. Y. 229. 
 
 Q. A, a young man, promises to marry B, a girl of nineteen 
 years of age, who resides with her parents. Thereafter he se- 
 duces her. What action or actions, if any, can be maintained 
 against A? 
 
 A. The parents may maintain an action for the seduction. 
 Seduction under promise of marriage is also a crime by sec. 
 2175 of the Penal Law. While the seduced party cannot main- 
 tain an action for her own seduction, since she has consented 
 to the act, yet she may sue for breach of promise of marriage, 
 in which action she practically recovers damages for the seduc- 
 tion. 
 
TORTS 401 
 
 Q. A, a physician, brings suit against B for slander, who 
 said of him: "He is a blockhead! He is not fit to treat a cow! " 
 The physician introduced no testimony of any kind as to actual 
 damages. The plaintiff asked to have submitted to the jury 
 the question of punitive damages. Should the court grant his 
 request? 
 
 A. Yes. The words spoken are actionable per se without 
 proof of actual damages, as they impute a general want of 
 professional skill. The cases actionable per se are generally 
 said to be the following: 1. Where the words spoken impute a 
 criminal offense. 2. Where they impute a disgraceful disease, 
 which would cause the party to be excluded from society. 3. 
 Where they convey a charge of unfitness, dishonesty, or in- 
 competence in an office, profession, trade or calling. White 
 V. Carroll, 42 N. Y. 162; Cruikshank v. Gordon, 118 N. Y. 178; 
 Krug V. Pitass, 162 N. Y. 154, It is also provided by sec. 1906 
 of the Code of Civ. Pro. that an imputation of unchastity to a 
 woman is actionable without proof of special damage. In cases 
 actionable per se, plaintiff is usually entitled to recover puni- 
 tive damages. ' ' When the falseness of an article which is action- 
 able per se is proved, this is sufficient, as a general rule, to 
 warrant the jury in giving exemplary or punitive damages. 
 Proof that there was no actual malice, while not conclusive, is 
 to be considered by the jury with the other evidence, in the 
 determination of the question whether exemplary damages 
 should be given or withheld." Bergman v. Jones, 94 N. Y. 
 51. 
 
 Q. A says of B who is a plumber, that he knows nothing of 
 his trade. B brings action against A, and on the trial attempts 
 to show that he has lost many customers by reason of this 
 slander. He did not allege any special damage in his complaint. 
 A objects to the admission of the evidence. What should 
 be the ruling of the court? 
 
 A. The evidence should be excluded. Even in cases action- 
 able per se special damage must be alleged in order that it 
 26 
 
402 TOBTS 
 
 may be proven at the trial. Not alone must the special dam- 
 age arising from the loss of customers be pleaded but the names 
 of such customers must be stated. Plaintiff cannot prove that 
 anyone not named in his complaiat has stopped dealing with 
 him, and loss of customers is an item of special damage and 
 must be alleged in order to authorize a recovery therefor. 
 Herrick v. Lapham, 10 Johns. 281; Loftus Co. v. Bennett, 68 
 App. Div. 128; Rembt v. Roehr Rub. Co., 71 App. Div. 459; 
 Cruikshank v. Bennett, 30 Misc. 232. 
 
 Q. A and B were out driving together and they casually 
 met C. A. thereupon said to B : "Be careful how you deal with 
 that man C, he is dishonest and he will do you if he can." Noth- 
 ing more was said. C was a retired merchant not engaged in 
 any business. B reported the conversation to C, who sued A 
 for slander. On the trial C proved the above facts and rested. 
 A thereupon moved for judgment. Judgment for whom and 
 why? 
 
 A. A should have judgment. "The oral accusation of dis- 
 honesty is not slanderous per se, and no action will lie for the 
 utterance of such a charge by word of mouth unless it relates 
 to the plaintiff in a special character or occasions special 
 damage. There is no allegation that the words in question 
 were spoken of the plaintiff in reference to any occupation or 
 business, nor is there any averment that he had any occupation 
 or was engaged in any business. The omissions are fatal to 
 the statement of the cause of action." Cassaway v. Pattison, 
 93 App. Div. 371, 372. "Any charge of dishonesty against 
 an individual in connection with his business, whereby his 
 character in such business may be injuriously affected, is 
 actionable. If spoken of him iadividually, and not in con- 
 nection with his office or business, these words would not be 
 actionable." Fowles v. Bacon, 30 N. Y. 24. "Where an 
 action is brought for words not actionable in themselves, 
 spoken of a person in a particular calling, profession, or em- 
 ployment, it must appear that he followed such profession or 
 employment when the words were spoken." Forward v. 
 
TORTS 403 
 
 Adams, 7 Wend. 208. See also Synott v. Pearson, 138 App. 
 Div. 306. 
 
 Q. A, the publisher of a newspaper, publishes of B, a clergy- 
 man, that he was seen in certain concert halls of bad reputa- 
 tion. He brings action against A, but does not allege any 
 special damage. A sets up truth as a defense. What are the 
 rights of the parties? 
 
 A. The clergyman can maintain the action if the words 
 are false, for writings are actionable without proof of special 
 damage, when they tend to hold the party up to contempt, 
 disgrace or ridicule. Truth, however, in civil actions is a good 
 defense, even though there is malice in the charge. For it 
 has been held that the motives with which the publication was 
 made are immaterial as long as the charge was true. Root v. 
 King, 7 Cowen, 613; George v. Jennings, 4 Hun, 66. When 
 truth is relied upon as a defense it must be pleaded. Roeber 
 V. Staats Zeitung, 1 App. Div. 427. In criminal cases truth 
 alone is not a good defense, but the publication is only justified 
 when the matter charged as libelous is true, and was pub- 
 lished with good motives and for justifiable ends. "The pub- 
 lication is also excused by the Penal Law when it is honestly 
 made, in the belief of its truth and upon reasonable grounds for 
 this belief, and consists of fair comments upon the conduct of 
 a person in respect of public affairs, or upon a thing which the 
 proprietor thereof offers or explains to the public." Penal 
 Law, sec. 1342. People v. Sherlock, 166 N. Y. 189. 
 
 Q. A corporation engaged in the dry goods business was 
 charged by a certain newspaper with being insolvent. The 
 corporation brings action against the paper without alleging 
 special damage. Can the action be maintained? 
 
 A. Yes. The imputation of insolvency is actionable per se, 
 therefore the corporation can maintain the action without 
 showing special damage. Words which are calculated to 
 impair the credit or in any way to affect the standing of a 
 
404 TORTS 
 
 person or corporation in relation to his or its trade or business, 
 are actionable per se, and an action for libel may be maintained 
 thereon without alleging special damage, Mott v. Comstock, 
 7 Cowen, 654; Bank v. Thompson, 23 How. Pr. 253; Union 
 Assoc. Press v. Heath, 49 App. Div. 247. "A corporation 
 like a natural person has the right to maintain an action of 
 libel when the publication assails its management or credit 
 and inflicts injury upon its business or property, and an aver- 
 ment of specific damage is not necessary when the language 
 is of so defamatory a nature as to directly affect credit and 
 occasion pecuniary injury." Reporters' Assn. of America 
 V. Sun Printing & Pub. Assn., 186 N. Y. 437. 
 
 Q. A mercantile agency published a statement to the effect 
 that a judgment for $4,000 had been rendered against A who 
 was engaged in the manufacturing business. This statement 
 was untrue. A brings action without alleging any special 
 damage. Can he maintain the action? 
 
 A. No. "The words were not in themselves libelous, as an 
 imputation against the soundness of plaintiff's financial con- 
 dition. The mere recovery of a judgment does not necessarily 
 import default in the payment of a debt. There is nothing to 
 indicate in defendant's report that the judgment was produced 
 by any cause prejudicial to the credit of the plaintiff. It seems, 
 that upon an averment and proof of special damages resulting 
 from such a false publication, an action wotild be sustainable," 
 Woodruff V. Bradstreet, 116 N. Y. 217. 
 
 Q. The defendant, a news publishing company, on the trial 
 of an action brought to recover damages for publishing a 
 libelous article concerning plaintiff, sought to prove in miti- 
 gation of damages, that the plaintiff had in two other actions 
 obtained judgments aggregating $2,000 against other news- 
 papers for having published the identical libel complained 
 of in this action, and that said judgments have been paid, all 
 of which the defendant duly pleaded. State whether or not 
 the evidence should be admitted. Give your reasons. 
 
TORTS 405 
 
 A. The evidence should not be admitted. "Thus a previous 
 judgment against the proprietor of a newspaper, even though 
 satisfied, is no bar to an action for the same libel against the 
 author. A fortiori, that heavy damages have been recovered 
 against one newspaper, is no bar to an action against another 
 newspaper which has published the same libel. Such previous 
 recovery should not be even mentioned to the jury in mitiga- 
 tion of damages, nor should it be stated that such other actions 
 are pending." Odgers on Libel and Slander, p. 457. "It is 
 now too well settled to be questioned that the fact that others 
 have published the same Ubel which was unknown to the de- 
 fendant when the publication complained of was made, or that 
 suits have been commenced against others for the publication 
 of such libel, is inadmissible. The defendants in this case 
 were liable and that some one else was also liable was immate- 
 rial. It would not properly diminish the recovery against them 
 to show that the plaintiff had recovered or might recover dam- 
 ages from others who had published the same libel. Each 
 defendant is to pay damages for the injuries which he has 
 occasioned and not for the injury by others. Therefore this 
 class of evidence is inadmissible. While the defendant may 
 perhaps show in mitigation of damages that he copied the li- 
 belous paragraph from a public newspaper, and hence, believed 
 it to be true, he may not show that other journals published 
 the same statement simultaneously or subsequently to the pub- 
 lication complained of. Nor can he prove that the alleged 
 libel appeared in another newspaper for which the plaintiff 
 had already recovered damages. That this evidence was 
 inadmissible seems to be well established by the decisions in 
 this state. Tillotson v. Cheetham, 3 Johns. 56; Gray v. Brook- 
 lyn Hat Co., 35 App. Div. 286; Hatfield v. Lasher, 81 N. Y. 
 246; Mattice v. Wilcox, 147 N. Y. 624." Martin, J., in Pahner 
 V. Matthews, 162 N. Y. 103. 
 
 Q. A sues B for libel. B at the trial attempts to show in 
 mitigation of damages, that A has at various times committed 
 acts similar to the one charged in the statement. Should he be 
 allowed to do so? 
 
406 TORTS 
 
 A. No. A defendant will not be allowed to show in mitiga- 
 tion of damages for a specific libel other and disconnected 
 immoral acts on the part of the plaintiff, but can only attack 
 the plaintiff's general bad character. Corning v. Coming, 
 6 N. Y. 104; Hohnes v. Jones, 147 N. Y. 59; Cudlip v. N. Y. 
 Ev. Journal Pub. Co., 180 N. Y. 87. 
 
 (Note.) It is always a question for the jury as to whether or not there 
 was malice in the publication of a hbel, when punitive damages are allowed. 
 Crane v. Bennett, 177 N. Y. 106. 
 
 Q. A, a lawyer, on the trial of a certain action, in summing up 
 to the jury, denounces B as a liar and a perjurer. This is 
 absolutely false. B brings an action against A for slander, 
 and at the trial attempts to show that the statements were 
 made maliciously. Can he do so, and is the action main- 
 tainable? 
 
 A. The evidence cannot be admitted and the action cannot 
 be maintained. Statements made by counsel in addressing the 
 jury when pertinent to the issue are absolutely privileged, and 
 no evidence of malice is admissible. Garr v. Selden, 4 N. Y. 
 91; Marsh v. Ellsworth, 50 N. Y. 309; Woodman v, Kidd, 25 
 App. Div. 254. 
 
 (Note.) The distinction must be drawn between absolute and qualified 
 privilege. In the former, the protection is complete, and no evidence of 
 malice is admissible; the latter is only eflfectual for protection when the 
 statements are not made maUciously; if malice is shown, the privilege fails. 
 Klinck v. Colby, 46 N. Y. 427; Hamilton v. Eno, 81 N. Y. 124. The rule 
 as to qualified privilege is stated in sec. 1350 of the Penal Law as follows: 
 "A communication made to a person entitled to or interested in the com- 
 munication by one who was also interested in or entitled to make it, or who 
 stood in such a relation to the former as to afford a reasonable ground for 
 supposing his motive innocent, is presumed not to be malicious, and is called 
 a privileged communication." 
 
 Q. A, an intimate friend of B and her family, in good faith, 
 tells the father and brother of B, that C, to whom B is engaged 
 to be married, has been convicted of a felony. There is abso- 
 lutely no truth in such statement. Has C any right of action? 
 And if so, what? 
 
TORTS 407 
 
 A. He can maintain an action for slander. The statement 
 not being in answer to an inquiry was not privileged. "A mere 
 friendly acquaintance or regard does not impose a duty of 
 communicating charges of a defamatory character concerning 
 a third person, although they may be told to one who has a 
 strong interest in knowing them. The duty of refraining from 
 the utterance of slanderous words, without knowing or ascer- 
 taining their truth, far outweighs any claim of mere friendship. 
 A communication made bona fide upon any subject-matter in 
 which the party communicating has an interest, or in reference 
 to which he has a duty is privileged, if made to a person having 
 a corresponding interest or duty, although it contained criminat- 
 ing matter which, without this privilege, would be slanderous 
 and actionable; and this, though the duty be not a legal one, 
 but only a moral or social duty of imperfect obligation. . . . 
 It is easy enough to apply the rule in cases where both parties, 
 the one making and the other receiving the communication, are 
 interested in it, or where the parties are related, or where it is 
 made upon request to a party who has an interest in receiving 
 it, or where the party making it has an interest to subserve, or 
 where the party making it is under a legal duty to make it. 
 But when the privilege rests simply upon the moral duty to 
 make the communication, there has been much uncertainty in 
 applying the rule. The difficulty is to determine what is 
 meant by the term 'moral duty,' and whether in any given case 
 there is such a duty." Earl, J., in Byam v. Collins, 111 N. Y. 
 143. See also Ashcroft v. Hammond, 197 N. Y. 494; Hoey v. 
 N. Y. Times Co., 138 App. Div. 153. 
 
 (Note.) As a general rule privilege in actions for libel is a matter of de- 
 fense, and should be pleaded in order to be available. Stevenson v. Ward, 
 48 App. Div. 291; Stuart v. Press Pub. Co., 83 App. Div. 467; Tierney v. 
 Ruppert, 150 App. Div. 863. 
 
 Q. A tells B that the stock of a certain corporation is a safe 
 and good investment, honestly believing that what he said was 
 true. B relying on the statements buys some of the stock. 
 It is worthless, and B loses his money. B comes to you for 
 advice. What are his rights? 
 
408 TORTS 
 
 A. He has no rights against A, as the statements were merely 
 opinions and therefore not fraudulent. The elements of an 
 action for fraud and deceit are not here present. The elements 
 of such an action are: 1. False representations of material 
 facts by the defendant. 2. That defendant knew they were 
 false or should have known so. 3. Plaintiff beUeved and had a 
 right to beheve that they were true. 4. That defendant in- 
 tended that the statements should be acted upon. 5. That 
 plaintiff did act upon them to his damage, or as tersely stated 
 by Church, Ch. J., in Arthur v. Griswold, 55 N. Y. 400: "Rep- 
 resentation, falsity, scienter, deception and injxu"y." Pecun- 
 iary loss to the deceived party is absolutely essential to the 
 maintenance of the action. Fraud and deceit alone do not 
 warrant the recovery of damages. Deceit and injury must con- 
 cur. Taylor v. Guest, 58 N. Y. 260; Ettinger v, Weil, 184 
 N. Y. 79; Urtz v. R. R. Co., 202 N. Y. 170. 
 
 Q. A agreed to purchase of B by parol agreement a quantity 
 of cheese, and pay him the market price therefor, if deUvered 
 within two weeks. B being made to beheve by the false repre- 
 sentations of C that A did not want the cheese sold it to C. 
 The contract was void under the Statute of Frauds, but it would 
 have been performed by B had it not been for C's false state- 
 ment. This false statement of C was intended to and did 
 deprive A of the benefit of his contract. Upon learning of 
 these facts A brought suit against C for fraud and proved 
 damages for $500. The above facts being conceded, who 
 should have judgment and why? 
 
 A. Judgment for A. The action is maintainable for fraud 
 and deceit and it makes no difference that A could not enforce 
 his agreement against B, as B would have performed and A 
 would have had the benefit of it but for the fraud of C. Snow 
 V. Judson, 38 Barb. 210; White v. Merritt, 7 N. Y. 352. "In 
 order to maintain the action for fraud it was sufficient to show 
 as here that defendant knowingly uttered a falsehood with the 
 design to deprive the plaintiff of a benefit and to acquire it to 
 himself." Rice v. Manley, 66 N. Y. 84, and so also N. Y. L. I. 
 
TORTS 409 
 
 Co. V. Chapman, 118 N. Y. 288, where it was said that: "It is 
 essential to the maintenance of an action for fraud to show that 
 damages resulted from it as the proximate cause, but it is not 
 necessary to show that the person guilty of the fraud derived 
 any benefit from it." See also Benett v. Pratt, 2 Wend. 385; 
 Schlenk v. Naylor, 102 N. Y. 683. 
 
 Q. A owns a farm some distance away. B wishes to buy and 
 goes to A and inquires. A tells him that the farm is worth 
 $50 per acre, but in reality it is worth only flO per acre. A 
 also tells him that if he wishes he will take him out to see the 
 farm or if he wishes he can inquire as to its value. B purchases 
 without doing either. Can B under the circumstances maintain 
 an action against A? State your reasons. 
 
 A. No. "Upon the question of value the purchaser must 
 rely upon his own judgment, and it is folly to rely upon the 
 representations of the vendor in that respect." Ellis v. An- 
 drews, 56 N. Y. 83. "The rule is well stated that a naked 
 assertion by the vendor of the property offered for sale, even 
 though untrue of itself, and known to be such by him, unless 
 there is a want of knowledge on the part of the vendee and the 
 sale is made in entire reliance upon the representation, or unless 
 some artifice is employed to prevent inquiry or the obtaining of 
 knowledge by the vendee, will not render the vendor liable for 
 damages." Chrysler v. Canady, 90 N. Y. 272. 
 
 Q. A owns a certain farm and offers to sell it to B for $10,000, 
 telling him that it is fully worth that amount, and that the 
 farm then kept and would keep and maintain from its products 
 100 head of cattle and 20 horses. The farm is situated some 
 ten miles distant and B is a stranger in that neighborhood. 
 B relies entirely upon A's representations and hence does not 
 go to see the farm before buying it. The statements of A 
 prove to be false. What are B's rights? 
 
 A. He can sue A for the damages sustained by reason of the 
 fraud, as the facts here show actionable deceit. "I think the 
 general rule is that if the facts represented are not matters 
 
410 TORTS 
 
 peculiarly within the one party's knowledge, and the other 
 party has the means available to him of knowing by the exercise 
 of ordinary diligence the truth or real quality of the subject of 
 the representation, he must make use of those means, or he 
 will not be heard to complain that he was induced to enter into 
 the transaction by misrepresentation. I think the particular 
 representation made to induce the purchase of this farm, was 
 as to a material fact, affecting the quality of a farm and its 
 actual value for a certain purpose, and which lay pecuUarly 
 within his knowledge. It is difficult to see how the exercise 
 of common prudence, and the use of ordinary intelligence, or 
 of the faculty of sight would have enabled plaintiff to detect 
 the falsity of the statement and therefore, why she was not en- 
 titled to rely absolutely upon it." Gray, J., in Schiunaker v. 
 Mather, 133 N. Y. 590. "The present case differs from those 
 cases where the statements of the seller of land relate to its 
 value, merely as such or as to its adaptation to particular modes 
 of cultivation. Such statements express or represent but the 
 opinion of the seller,, and cannot be said to be as to matters 
 lying peculiarly within his knowledge. However they may 
 fail of verification, in result of working, they do not furnish 
 evidence of fraudulent intent." Simar v. Canaday, 53 N. Y. 
 306. 
 
 Q. A sells land to B. In order to induce B to purchase, A 
 told him that he had paid $2,500 for the land to C, from whom 
 he (A) had bought it. B thereupon paid $2,500 for the land. 
 As a matter of fact, A had only paid $1,000 and the property 
 was not worth more than that amount. What are B's rights? 
 
 A. B can maintain an action for fraud and deceit. A false 
 representation made by the vendor when about to sell land to 
 the party proposing to purchase as to the price he paid for it 
 shortly before to a former owner, which was intended and did 
 influence the purchaser, is actionable deceit. It is settled law 
 that the cost of a thing is a material allegation well adapted to 
 affect the action or judgment of the purchaser, for a false state- 
 ment of which an action will he. Fairchild v. McMahon, 139 
 
TORTS 411 
 
 N. Y. 290; Townsend v. Felthouseii, 156 N. Y. 618; Van 
 Slochem v. Villard, 207 N. Y. 587. 
 
 (Note.) The rule is that the representations of a vendor as to extrinsic 
 facts affecting the quality or value of the subject of the transaction of sale 
 and which are peculiarly within his knowledge may be relied upon by the 
 purchaser, and if the representations are false and he is misled thereby to 
 his injury, he may maintain an action for damages. Mead v. Bunn, 32 N. Y. 
 75; Hadcock v. Osmer, 153 N. Y. 604; Isman v. Laring, 130 App. Div. 845. 
 An action against the agent and also the principal can be maintained where 
 the agent's fraud caused plaintiff's damages. Mack v. Latta, 178 N. Y. 525. 
 
 Q. A purchased goods of B on credit and did not disclose his 
 financial standing to B at the time, who would not have sold to 
 him the goods if he had known the facts, A being insolvent at 
 the time. When the debt became due A could not pay, and had 
 no property subject to levy, the goods he purchased from B hav- 
 ing been sold in the course of business. B sues A for fraud and 
 deceit. On the above facts who should have judgment and 
 why? 
 
 A. Judgment for A. It is well settled in this state that an 
 intent to defraud cannot be imputed to a party who contracts 
 a debt knowing that he is insolvent, merely from the fact of 
 his insolvency, and his omission upon a purchase of goods upon 
 credit to disclose his condition to his vendor. Nichols v. Pinner, 
 18 N. Y. 295; Wright v. Brown, 67 N. Y. 9; People's Bank v. 
 Bogart, 81 N. Y. 108. "A condition of known insolvency on 
 the part of an intending purchaser of property, accompanied 
 with an intention to acquire the property of his vendor without 
 paying for it, constitutes such a fraud as will make the vendee 
 liable; but the intention not to pay can no more be inferred 
 from the mere fact of insolvency, than the fact of insolvency 
 can be inferred from the existence of an intention not to pay." 
 Ruger, Ch. J., m Morris v. Talcott, 96 N. Y. 107, 108. 
 
 Q. A and B were the owners of adjoining farms. A's ram 
 that had escaped with other sheep from A's farm to B's farm 
 attacked and injured B. A's ram was not known to be vicious 
 and there was no neghgence on the part of either A or B in 
 
412 TORTS 
 
 properly maintaining the line fences. B sues A. Can he re- 
 cover? 
 
 A. ,Yes. The owner of a domestic animal is liable for all 
 damages which it commits while trespassing on the lands of 
 another. At the time of the injury, the ram which made the 
 attack on B was trespassing upon his premises. This was 
 prima facie sufficient to charge the owner with liability for the 
 damages sustained. Dunkle v. Kocker, 11 Barb. 389; Leuvin 
 V. Lyke, 1 N. Y. 515. 
 
 Q. A is engaged in blasting rock on his own land. In the 
 process of blasting some of the rock was thrown on the house 
 of B, doing considerable damage. A used all due care in doing 
 the work. B brings action against A. Can he recover? 
 
 A. Yes. The owner of land is liable for committing a 
 trespass on the lands of his neighbor by casting rock thereon, 
 although he exercised all due care in doing the work. Here 
 there was a physical invasion of the land of the plaintiff, and, 
 therefore, the defendant is liable even though there was no 
 negligence. Hay v. Cohoes, 2 N. Y. 159, a leading case upon 
 the subject. See also Pixley v. Clark, 35 N. Y. 523; St. Peter 
 V. Penison, 58 N. Y. 416; Jutte v. Hughes, 67 N. Y. 273; Heeg 
 V. Licht, 80 N. Y. 583. 
 
 Q. A, in building the foundation for his house, is obliged to 
 blast certain rock. Work of blasting causes the building of his 
 neighbor B to shake, doing great damage. B brings action 
 against A for the damages sustained. Conceding that A used 
 all due care in blasting, is he liable to B? 
 
 A. No. A is not liable in the absence of negligence, for there 
 was no trespass, no part of the rock having been cast upon B's 
 land. "There are many acts which the owner of land may 
 lawfully do, although they bring annoyance, discomfort or in- 
 jury to his neighbor, which are damnum absque injuria. . . . 
 But here the defendant was engaged in a lawful act. It was 
 done upon his own land to fit it for a lawful business. It was 
 
TORTS 413 
 
 not an act which, under all circumstances, would produce in- 
 jury to his neighbor as is shown by the fact that all buildings , 
 near by were not injured. The immediate act was confined to 
 his own land; but the blasts by setting the air in motion or in 
 some other unexplained way, caused an injury to the plaintiff's 
 house. The blasting was necessary, was carefully done, and 
 the injury was consequential. There was no technical tres- 
 pass. Under these circumstances, we think the plaintiff has 
 no legal groimd for complaint." Andrews, Ch. J., in Booth v. 
 Rome Ry. Co., 140 N. Y. 267. See also Page v. Dempsey, 18^ 
 N. Y. 252. ^ 
 
 Q. A has a certain steam boiler upon his land for use in his 
 business. Through no fault of his, the boiler explodes injuring 
 the dwelling house of B, his neighbor. B brings suit against 
 him. Can he recover? 
 
 A. No. "Where one places a steam boiler upon his premises 
 and operates the same with care and skill so that it is no nui- 
 sance, in the absence of proof of fault or negligence on his part, 
 he is not liable for damages to his neighbor occasioned by the 
 explosion of the boiler. If the explosion was caused by a de- 
 fect in the manufacture of the boiler he is not liable in the ab- 
 sence of proof that such defect was known to him or was dis- 
 coverable upon examination or by the application of known 
 tests." Losee v. Buchanan, 51 N. Y. 476. 
 
 Q. A, while lawfully traveling upon a public highway, was 
 killed by a blow from a piece of rock which fell upon him by 
 reason of a blast exploded by B upon his adjoining land. B, 
 for the lawful purpose of improving his land, was engaged in 
 blasting the rock. He used the most scientific of methods, and 
 was skillful and without negligence. On the trial of an action 
 for damages for causing A's death, the above facts appeared 
 and both sides moved for judgment. Judgment for whom and 
 why? 
 
 A. Judgment for A's representatives. "A person who for a 
 lawful purpose and without any negligence or want of skill, 
 
414 TORTS 
 
 does blasting upon his own land, and thereby causes a piece of 
 rock to fall on a person lawfully traveling on a public highway, 
 is liable for the injury inflicted, and in an action brought against 
 him to recover damages for the death of the person injured by 
 his representatives, it is not essential for the plaintiffs to estab- 
 lish negligence or want of care in order to make out a cause of 
 action." Sullivan v. Dunham, 161 N. Y. 290. 
 
 *■ (Note.) The distinction between this case and that of Losee v. Buchanan, 
 supra, is, that the latter was not a case of intentional but of an accidental 
 explosion. 
 
 Q. A was a law book seller and employed B as porter. B 
 stole certain valuable books, and sold them to C. C in the 
 usual course of his business sold them with other books to D. 
 D sells the books to E. A, discovering the facts and without 
 making any demand upon D for their return, sues him in 
 conversion. D had no knowledge of the theft. Can the action 
 be maintained? Give your reasons. 
 
 A. Yes. The act of selling the books to E was an unlawful 
 exercise of ownership over A's property amounting to a conver- 
 sion, and therefore no demand was necessary. "The assumed 
 sale by the porter of the plaintiffs to Perry was wholly nugatory 
 and conveyed no title. On like grounds, the sale by Perry to 
 the defendants was without effect. They were constructively 
 in possession of the plaintiffs' property without the consent of 
 the latter. The exercise of an act of ownership or dominion over 
 the plaintiffs' property, assmning to sell and dispose of it as 
 their own, was within reason and the authorities, an act of 
 conversion to their own use. The assumed act of ownership 
 was inconsistent with the dominion of the plaintiffs, and this 
 is of the essence of a conversion. Knowledge and intent on the 
 part of the defendants are not material. So long as the defend- 
 ants had exercised no act of ownership over the property and 
 acted in good faith, a demand and refusal would be necessary 
 to put them in the wrong and constitute conversion. Until 
 such demand, there is no apparent inconsistency with their 
 possession and the plaintiffs' ownership. After a sale had 
 
TORTS 415 
 
 been made by the defendants they have assumed to be the 
 owners, and will be estopped to deny in an action by the lawful 
 owner the natural consequences of their act, and to resist an 
 action for the value of the goods. As according to these views, 
 the conversion took place at the moment of the unauthorized 
 sale by the present defendants, no demand was necessary; the 
 sole object of a demand being to turn an otherwise lawful 
 possession into an unlawful one by reason of a refusal to comply 
 with it, and thus to supply evidence of a conversion." Dwight, 
 C, in Pease v. Smith, 61 N. Y. 447, a leading case, repeatedly 
 followed. Castle v. Bank, 148 N. Y. 122; Tompkins v. Fonda 
 Co., 188 N. Y. 261; MacDonnell v. Buffalo Co., 193 N. Y. 
 92. 
 
 Q. A brings an action against B to restrain him from operat- 
 ing a furnace, claiming that it is a nuisance and that the smoke 
 and cinders escaping therefrom annoy him and his family. 
 B defends on the ground that his business is a lawful one, and 
 that he has operated the furnace under the same condition for 
 the past ten years. Judgment for whom and why? 
 
 A. Judgment for A. The length of time and the lawfulness 
 of the business are no defense. "If one carry on a lawful trade 
 or business in such a manner as to prove a nuisance to his 
 neighbor, he must answer in damages, and it is not necessary 
 to a right of action that the owner should be driven from his 
 dwelling; it is enough that the enjoyment of Ufe and property 
 be rendered unconxfortable." Campbell v. Seaman, 63 N. Y. 
 568; Cogswell v. R. R. Co., 103 N. Y. 10. The operation of the 
 furnace for ten years did not give a prescriptive right and 
 rehef wiU not be denied the plaintiff unless the nuisance was 
 continued long enough to establish a prescriptive right. Mulli- 
 gan V. EUas, 12 Abb. (N. S.) 209; Leonard v. Spencer, 108 
 N. Y. 347; Bohan v. P. J. G. L. Co., 122 N. Y. 18. 
 
 Q. A mill burns soft coal. A's dwelling is near the mill and 
 smoke and cinders enter his house, and also the vibrations of 
 the machinery are felt there. It also affects all other residents 
 
416 TORTS 
 
 in the locality in the same manner. A brings action in tort for 
 damages. Can he recover, and why? 
 
 A. Yes, as he has sustained special damage. "The evidence 
 showed that other houses in the vicinity were affected similarly 
 as those of the plaintiff. The ground of the motion was that 
 as the stench injured a large number of houses the nuisance was 
 common, and therefore no one could maintain an action for his 
 particular injury, the only remedy being an indictment for the 
 common injiury to the public. The error of this is obvious both 
 upon principle and authority. The idea that if by a wrongful 
 act a serious injury is inflicted upon a single individual, a re- 
 covery may be had therefor against the wrongdoer, and if by 
 the same act numbers are so injured, no recovery can be had 
 by anyone is absurd. The rule is that one erecting and main- 
 taining a common nuisance is not liable to an action at the 
 suit of one who had sustained no damage therefrom, except 
 such as are common to the entire community, yet he is hable 
 to one who has sustained damages peculiar to himself. No 
 matter how numerous the persons may be who have sustained 
 this peculiar damage, each is entitled to compensation for his 
 injury." Grover, J., in Francis v. Schoellkopf, 53 N. Y. 152. 
 "The mere fact of a business being carried on which may be 
 shown to be immoral, and therefore prejudicial to the character 
 of the neighborhood, furnishes of itself no ground for equitable 
 interference at the suit of a private person; and though the use 
 of property may be unlawful or imreasonable unless special 
 damage can be shown, a neighboring property owner cannot 
 base thereupon any private right of action. It is for the public 
 authorities acting in the common interest to interfere for the 
 suppression of a common nuisance. If the business is unlawful 
 the complainant in a private action must show special damage 
 by which the legitimate use of his adjoining property has been 
 interfered with or its occupation rendered unfit or uncomforta- 
 ble. That the perpetrator of the nuisance is amenable to the 
 provisions and penalties of the criminal law is not an answer to 
 an action against him by a private person to recover for injuries 
 sustained, and for an injunction against the continued use of his 
 
TORTS 417 
 
 premises in a similar manner." Gray, J., in Cranford v. Tyr- 
 rell, 128 N. Y. 341. See also Kavanagh v." Barber, 131 N. Y. 
 211; Acherman v. Trul, 175 N. Y. 353. 
 
 Q. A goes upon B's premises seeking employment as a farm 
 hand. Wliile upon the premises a defective steam boiler ex- 
 plodes and severely injures him. He brings action against B. 
 Can he recover? 
 
 A. No. "A person who goes upon the land of another with- 
 out invitation to secure employment of the owner of the land, 
 is not entitled to indemnity from such owner for an injury 
 happening from the operation of a defective machine on the 
 premises not obviously dangerous which he passes in the course 
 of his journey. So it may be shown that the owner might have 
 ascertained the defect by the exercise of reasonable care, he 
 owed no legal duty to a stranger coming upon his premises 
 which required him to keep the machinery in repair." Larmore 
 V. Iron Co., 101 N. Y. 391. This rule has been followed in 
 Sterger v. VanSicklem, 132 N. Y. 499; Walsh v. R. R. Co., 145 
 N. Y. 301; Birch v. City of N. Y., 190 N. Y. 403, and also in 
 Hickock V. Auburn Co., 200 N. Y. 471, where it was said: 
 "The owner or occupier of real property is under no obligation 
 to make it safe, or to keep it in any particular condition for the 
 benefit of trespassers, intruders, mere volunteers or bare 
 licensees, coming upon it without his invitation, express or 
 implied." 
 
 Q. A brings action against B for negligence. B demurs to 
 A's complaint on the ground that it does not state that the 
 plaintiff was free from contributory negligence, and hence does 
 not state facts sufiicient to constitute a cause of action. What 
 should be the decision on the demurrer? 
 
 A. The demurrer should be overruled. "It is not essential 
 that the complaint in an action for negligence shall allege the 
 absence of contributory negligence on the part of the plaintiff ; 
 such an allegation is substantially involved in the averment 
 that the injury complained of was caused by the defendant's 
 27 
 
418 TORTS 
 
 negligence. To prove this averment it is necessary, and the 
 burden is upon the plaintiff to estabUsh that his own negligence 
 did not cause or contribute to his injury." Lee v. Troy Gas 
 Co., 98 N. Y. 115; Bogardus v. R. R., 62 App. Div. 376. 
 
 Q. A farmer owned a farm which was crossed by a railroad 
 track over which was the usual farm crossing. While attempt- 
 ing to drive his herd of cows from the pasture to the barn across 
 the railroad track upon the farm crossing, the cows huddled 
 together on the railroad track. A train was approaching and 
 X while endeavoring to save his cows by getting them over the 
 track before the train reached the crossing, was himself struck 
 by the train and killed,. Upon the trial of an action against the 
 railroad company, brought by X's wife to recover damages 
 sustained by his death, the only question of law raised was the 
 alleged contributory negligence of X. Was the plaintiff en- 
 titled to recover? Give reasons in full. 
 
 A. No, as X had no right to put himself in a dangerous situ- 
 ation to protect his cattle; in doing so he was guilty of negli- 
 gence. Eckert V. R. R., 43 N. Y. 502. " A person cannot place 
 himself in a position of danger simply for the protection of his 
 property as by going upon a railroad track at a farm crossing, 
 knowing that a train is approaching for the purpose of endeavor- 
 ing to save his cattle by getting them over the track before 
 the train reached the crossing, without being guilty of negli- 
 gence as will preclude a recovery for a personal injury received 
 in so doing." Morris v. Lake Shore & Mich. So. Ry. Co., 148 
 N. Y. 182. 
 
 Q. A child of the age of four years while playing in the middle 
 of the street is run over by one of the cars of the X Street Rail- 
 way Company. The parent brings action against the com- 
 pany. The company defends on the ground that the child was 
 guilty of contributory negligence. Is this defense good? 
 
 A. Yes. "Where a child of such tender age as not to pos- 
 sess sufficient discretion to avoid danger is permitted by his 
 parents to be in a public highway without anyone to guard 
 
TORTS 4] 9 
 
 him, and is there run over by a traveler and injured, the traveler 
 is not liable. In such an action if the plaintiff is negligent 
 there can be no recovery, and although the child by reason of 
 tender age is incapable of using that ordinary care which is 
 required of a discreet and prudent person, the want of such 
 care on the part of the parents and guardians of the child fur- 
 nishes the same answer to an action by the child as would its 
 omission on the part of the plaintiff in an action by an adult." 
 Hartfield v. Roper, 21 Wend. 615. This case although much 
 criticised is the settled law of this state, and the negligence 
 of the custodian must be imputed to a plaintiff non sui juris. 
 See Mangan v. R. R., 38 N. Y. 455; Huerzeller v. R. R., 139 
 N. Y. 490; Costello v. R. R., 161 N. Y. 317; Simkoff v. R. R., 
 190 N. Y. 256; Jacobs v. Koehler S. G. Co., 208 N. Y. 418. 
 
 Q. B, the infant child of A, is injured by the negligence of a 
 railroad company. In an action by A against the company, 
 what damages are recoverable? 
 
 A. "In an action brought by a parent for the loss of services 
 of a minor child disabled by the tortious acts of the defendant, 
 plaintiff is entitled to recover not only for loss of services up 
 to the time of trial, but for the prospective loss during the 
 child's minority; also for expenses actually and necessarily 
 incurred or which are immediately necessary in consequence 
 of the injury in the care and cure of the child, but not for 
 future prospective contingent expenses of this kind. It seems 
 that such expenses can only be recovered, if at all, in an action 
 by the child." Gumming v. R. R., 109 N. Y. 95; Weis v. 
 Rosenbaimi, 115 N. Y. Suppl. 121, 
 
 Q. A was traveling on a public highway when B's building 
 collapsed; a part of the same struck and severely injured him. 
 He brings action against B, and at the trial shows the above 
 facts and rests. Both sides move for judgment. What should 
 be the ruling of the court? 
 
 A. Judgment for A, as negligence is presumed from the hap- 
 pening of such an accident. "The owner of a building adjoin- 
 
420 TORTS 
 
 ing a street or highway is under a legal obligation to take reason- 
 able care that it is kept in proper condition so that it shall 
 not fall into the street and injure persons lawfully there. From 
 the happening of such an accident, in the absence of explana- 
 tory circumstances, negligence will be presumed, and the burden 
 is upon the owner of showing the use of ordinary care." Mullen 
 V. St. John, 57 N. Y. 567. This is the so-called rule of res ipsa 
 loquitur, and has been followed in many cases. Volkmar v. 
 Ry. Co., 134 N. Y. 418; Wolf v. Amer. Tract Soc, 164 N. Y. 
 33; Griff en v. Manice, 166 N. Y. 188; Cunningham v. Dady, 
 191 N. Y. 156. See also Hogan v. Manhattan El. Road, 149 
 N. Y. 23, as to the presumption of negligence arising from the 
 falling of articles from the elevated structure into the streets. 
 
 Q. A is a passenger on a train of the X Railroad. While in 
 the course of the journey a collision occurs between the train 
 on which he is riding and a train of the Y Railroad, through 
 which A receives severe injuries. The engineers of both trains 
 were guilty of negligence. He brings action against the Y 
 Railroad which defends on the ground that the engineer of the 
 train on which A was riding was guilty of negligence. Judg- 
 ment for whom and why? 
 
 A. Judgment for A, The negligence of the engineer of the 
 train on which A was riding is not imputable to him. "He 
 was a passenger on the cars, conducting himself as he lawfully 
 ought, having no control over the train or its management, 
 on the contrary bound to submit to the regulations of the com- 
 pany and the directions of their officers. To say that he is 
 chargeable with negligence because they have been guilty is 
 plainly not founded on any fact of conduct on his part, but is 
 mere fiction." Chapman v. R. R., 19 N. Y. 341; Ward v. 
 R. R., 206 N. Y. 88. 
 
 ^ Q. A invites B for a carriage ride. They both sit on the seat 
 of the vehicle. Through A's negligence a collision occurs with 
 another carriage driven by C, the owner; the latter was also 
 guilty of negUgence. B sustains severe injuries and brings 
 action against C. Can he recover? 
 
TORTS 421 
 
 A. No. "The rule that the negligence of a vehicle may not 
 be imputed to a passenger in an action to recover damages 
 for injuries alleged to have been occasioned by defendant's 
 negligence, is only applicable to cases where the relation of 
 master and servant or principal and agent does not exist, 
 or where the passenger is seated away from the driver or is 
 separated from him by an inclosure and is without opportunity 
 to discover danger and to inform the driver. It is no less the 
 duty of a passenger when he has the opportunity to do so, 
 than of the driver to learn of danger and avoid it if practicable." 
 Brickell v. R. R., 120 N. Y. 290; Robinson v. R. R., 66 N. Y. 
 11; Hoag V. R. R., Ill N. Y. 199; Noakes v. R. R., 12LApp, 
 Div. 722; Wood v. R. R., 133 App. Div. 272. 
 
CHAPTER XVIII 
 
 Trusts 
 
 Q. A, by his will, leaves certain lands in trust to apply the 
 rents and profits to the use of two persons who are living, and 
 then to convey to Yale College. Is the trust vahd? 
 
 A. Yes, as the power of aUenation is not suspended for more 
 than two Uves in being. Section 42 of the Real Property Law 
 (Consolidated Laws, chap. 50), governing the suspension of the 
 power of alienation, is as follows: "The absolute power of 
 alienation is suspended, when there are no persons in being by 
 whom an absolute fee in possession can be conveyed. Every 
 future estate shall be void in its creation, which shall suspend 
 the absolute power of alienation, by any limitation or condition 
 whatever, for a longer period than during the continuance of not 
 more than two lives in being at the creation of the estate; except 
 that a contingent remainder in fee may be created on a prior 
 remainder in fee, to take effect in the event that the persons to 
 whom the first remainder is limited, die under the age of twenty- 
 one years, or on any other contingency by which the estate of 
 such persons may be determined before they attain full age. 
 For the purposes of this section, a minority is deemed a part of a 
 life, and not an absolute term equal to the possible duration of 
 such minority." Ogilby v. Hickock, 144 App. Div. 61, aff'd 
 in 202 N. Y. 614. 
 
 Q. A by his will devises real property to B, in trust to pay 
 over the rents and profits to C, D and E during their joint lives, 
 and on the death of all, to convey it to F in fee. The instrument 
 also gives power to B to sell the land at any time and deUver 
 the proceeds to F. Is it a valid trust? If so, why? If not, why 
 not? 
 
 422 
 
TRUSTS 423 
 
 A. Yes, the trust is valid. "Where the trustee is empowered 
 to sell the land, without restriction as to time, the power of 
 alienation is not suspended, although the alienation may in 
 fact be postponed by the nonaction of the trustee, or in conse- 
 quence of a discretion reposed in him by the creator of the 
 trust. The statute of perpetuities is pointed only to the suspen- 
 sion of the power of alienation, and not at all to the time of its 
 actual exercise. Where a trust for sale or distribution is made, 
 without restriction as to time, and the trustees are empowered 
 to receive the rents and profits pending the sale for the bene- 
 ficiaries, the fact that the interest of the beneficiaries is in- 
 alienable by statute, during the existence of the trust, does not 
 suspend the power of alienation, for the reason that the trustees 
 are persons in being who can at any time convey an absolute 
 fee in possession." Robert v. Corning, 89 N. Y. 225; Hender- 
 son v. Henderson, 113 N. Y. 1. See also Sawyer v. Cubby, 146 
 N. Y. 192; Matter of Wilcox, 194 N. Y. 305. 
 
 Q. A executed a deed by which he granted an estate for life 
 to B, and then an estate to C for life, to take effect upon B's 
 death, and then a life estate to D, and then the fee to E. What 
 is the effect of the deed? 
 
 A. As to the first two life estates the deed is valid, but as to 
 the third it is void and after the death of the first two life 
 tenants the estate vests in the remainder-man in fee, as if no 
 other life estate were granted. Purdy v. Hoit, 92 N. Y. 446. 
 Section 43 of the Real Property Law, provides for this as fol- 
 lows: "Successive estates for life shall not be limited, except to 
 persons in being at the creation thereof; and where a remainder 
 shall be limited on more than two successive estates for life, 
 all the life estates subsequent to those of the two persons first 
 entitled thereto shall be void, and on the death of those persons, 
 the remainder shall take effect, in the same manner as if no 
 other life estates had been created." 
 
 Q. A will contains a clause, by which a sum of money is 
 given to a trustee to invest in securities of any kind, and ac- 
 cumulate the profits for a term of twenty years, and then to pay 
 
424 TEUSTS 
 
 the fund with the income to the children of the testator in equal 
 shares. Is the trust valid? 
 
 A. The trust is not vaUd, Section 11 of the Personal Prop- 
 erty Law (Consolidated Laws, chap, 41) provides as follows: 
 "The absolute ownership of personal property shall not be 
 suspended by any limitation or condition, for a longer period 
 than during the continuance and until the termination of not 
 more than two lives in being at the date of the instrument con- 
 taining such limitation or condition; or, if such instrument be a 
 last will and testament, for not more than two lives in being at 
 the death of the testator. In other respects limitations of future 
 or contingent interests in personal property, are subject to the 
 rules prescribed in relation to future estates in real property." 
 The power of aUenation is here suspended during a fixed and 
 arbitrary period of time, suspended by the provision which 
 compels the holding of the estate in the hands of the trustee 
 intact, during twenty years subsequent to the death of the 
 testator, the holding being merely for the purpose of accumula- 
 tion during that time, of the interest and income. The provi- 
 sion violates the statute in this respect, that the period during 
 which the power of alienation is suspended thereby is not 
 measured by Uves. The trust that is created by the provision 
 is not determinable within any two ascertained lives; the trust 
 is not limited by lives, but by a fixed period, and under the 
 statute, the trust, in order to be vaUd, must be measured by 
 lives. Rice v. Barrett, 102 N. Y. 161 ; Staples v. Hawes, 39 
 App. Div. 548; Bindrin v. Ulrich, 64 App. Div. 444; Matter of 
 Berry, 154 App. Div. 510. 
 
 Q. A dies leaving a will by which his estate is given to his wife 
 upon certain trusts, the trust being to hold the estate for her 
 use, and the maintenance and support of the children, until the 
 youngest child living at the death of the testator should arrive 
 at the age of twenty-one, or would arrive at the age of twenty- 
 one if living. This provision is attacked on the ground that it 
 unlawfully suspends the power of alienation. What should the 
 decision be? 
 
TRUSTS 425 
 
 A. The provision is void, because an arbitrary time is fixed, 
 the time when the infant if Uving would have attained the age of 
 twenty-one, during which time the power of aUenation is sus- 
 pended. The period during which the power of alienation is 
 suspended is not measured by two lives, but by an arbitrary 
 and fixed time. In this respect, the provision contravenes the 
 statute, and is therefore void. Haynes v. Sherman, 117 N. Y. 
 433; Dana v. Murray, 122 N. Y. 604; Herzog v. Title G. & T. 
 Co., 177 N. Y. 99. 
 
 Q. A, by his will, leaves his property in trust to his executors, 
 to pay the income to his widow for twenty years, and at the 
 end of that period to divide it among his children. Is the trust 
 valid? 
 
 A, The trust is vaUd. The power of aUenation is not sus- 
 pended for more than one life in being, as the trust terminates 
 if the widow dies before the expiration of twenty years; for the 
 object of the trust being the payment of the income, would be 
 fulfilled upon her death, and the trust would therefore cease 
 with her Ufe. The trust is therefore measured by her life, and 
 being measured by a life, and not by an arbitrary period of 
 time, comes within the statute, and is therefore valid. Sec- 
 tion 109 of the Real Property Law (Consolidated Laws, chap. 
 50) provides as follows: "When the purpose for which an 
 express trust is created ceases, the estate of the trustee shall 
 also cease." The trust is Valid under this section, as the 
 widow's death would terminate the trust, for the estate of a 
 trustee ceases, and the trust terminates with the death of the 
 beneficiary. Case v. Case, 16 Misc. 393; Harvey v. Brisben, 
 143 N. Y. 151. 
 
 Q, A, by his will, devises his real estate in trust, to keep the 
 property intact, and to accumulate the income until his son C 
 became thirty years of age, and then to give him the property 
 and the accumulated income. At the time A died, C was 
 nineteen years of age. C consults you as to the legal effect of 
 the trust. What is your advice? 
 
426 TRUSTS 
 
 A. The trust is valid until C becomes twenty-one years of 
 age, according to sec. 61 of the Real Property Law (Consol- 
 idated Laws, chap. 50), which in part is as follows: "All direc- 
 tions for the accumulation of the rents and profits of real prop- 
 erty, except such as are allowed by statute, shall be void. An 
 accumulation of rents and profits of real property, for the 
 benefit of one or more persons, may be directed by any will or 
 deed sufficient to pass real property, as follows: 1. If such 
 accumulation be directed to commence on the creation of the 
 estate out of which the rents and profits are to arise, it must be 
 made for the benefit of one or more minors then in being, and 
 terminate at or before the expiration of their minority. 2. If 
 such accumulation be directed to commence at any time subse- 
 quent to the creation of the estate out of which the rents and 
 profits are to arise, it must commence within the time per- 
 mitted, by the provisions of this article, for the vesting of 
 future estates, and during the minority of the beneficiaries, and 
 shall terminate at or before the expiration of such minority. 
 3. If in either case, hereinbefore provided for, such directions 
 be for a longer term than during the minority of the benefici- 
 aries, it shall be void only as to the time beyond such minority." 
 Pray v. Hegeman, 92 N. Y. 515; St. John v. Andrews' Institute, 
 191 N. Y. 254. 
 
 Q. A bequeathed his personal estate in trust, and after 
 authorizing the expenditure of a certain sima for the support 
 of a minor child, he directed that the unexpended income should 
 be added to the capital of the trust fund, and that the income 
 of the whole fund should be payable to the child after reaching 
 the age of twenty-one. The testator then directed that on the 
 death of the child, the whole fund, including the accumulation 
 of unexpended income, should be paid to the other persons 
 named in the will. On becoming of age, the child consults 
 you. What are his rights? 
 
 A. The child is entitled to the income given to him by the 
 provisions of the will, as the direction for the accumulation of 
 the income is valid under sec. 16 of the Personal Property 
 
TKUSTS 427 
 
 Law (Consolidated Laws, chap. 41), which is as follows: "An 
 accumulation of the income of personal property, directed 
 by any instrument sufficient in law to pass such property is 
 valid: 1. If directed to commence from the date of the instru- 
 ment, or the death of the person executing the same, and to 
 be made for the benefit of one or more minors, then in being, 
 or in being at such death, and to terminate at or before the 
 expiration of their minority. 2, If directed to commence at 
 any period subsequent to the date of the instrument or subse- 
 quent to the death of the person executing it, and directed to 
 commence within the time allowed for the suspension of the 
 absolute ownership of personal property, and at some time 
 during the minority of the persons for whose benefit it is in- 
 tended, and to terminate at or before the expiration of their 
 minority. 3. All other directions for the accmnulation of the 
 income of personal property, not authorized by statute, are 
 void. In either case mentioned in subdivisions one and two 
 of this section a direction for any such accumulation for a 
 longer term than the minority of the persons intended to be 
 benefited thereby, has the same effect as if limited to the 
 minority of such persons, and is void as respects the time 
 beyond such minority." Cook v. Lowry, 95 N. Y. 103; Smith 
 V. Campbell, 75 Hun, 155; Matter of Hinchman, 141 App. 
 Div. 95. 
 
 Q. A, by his will, devises his realty to trustees, to collect the 
 rents and profits, and pay a certain portion for the support 
 of B, his infant son then eight years old, until the infant arrives 
 at age, the remainder of the income to be accumulated until 
 the expiration of B's minority, when the realty and the ac- 
 cumulations are to go to C and D in fee. B died at the age of 
 seventeen. In whom, and when does the legal estate vest, 
 and who is entitled to the accumulations in the hands of the 
 trustees at B's death? 
 
 A. The legal estate vests in the remainder-men, C and D, 
 and they are therefore entitled to the accumulations, accord- 
 ing to sec. 63 of the Real Property Law (Consolidated Laws, 
 
428 THUSTS 
 
 chap, 50), which is as follows: "When, in consequence of a 
 valid limitation of an expectant estate, there is a suspension 
 of the power of alienation, or of the ownership, during the 
 continuance of which the rents and profits are undisposed of, 
 and no vaUd direction for their accumulation is given, such 
 rents and profits shall belong to the persons presumptively 
 entitled to the next eventual estate." U. S. Trust Co. v. 
 Soher, 178 N. Y. 442; Matter of Harteau, 204 N. Y. 292; Young 
 V. Barker, 141 App. Div. 801. 
 
 Q. A and B were copartners. A misappropi-iated $6,000 
 of the partnership funds, using a portion thereof to purchase 
 a paid-up poUcy of insurance on his life in the sum of $5,000, 
 which he made payable to his wife. He paid the premiums of 
 the policy wholly out of the money he misappropriated until 
 his death. The wife was ignorant of her husband's fraud, and 
 in entire good faith, demands the amount of the policy after 
 her husband's death. B, the surviving partner, also demands 
 the amount of the policy. What rights, if any, has he in 
 the matter and on what grounds, and how should he pro- 
 ceed? 
 
 A. B, the surviving member of the farm, is entitled to the 
 whole amount of the insurance, as such amount was less than 
 the amount of the firm funds misappropriated by the deceased 
 partner. He should bring an action in equity to enforce the 
 trust which resulted. He had the same rights as would exist 
 against a trustee on behalf of a cestui que trust. The surviving 
 partner has the right to follow the funds provided as here, 
 that they can be clearly ascertained, traced and identified. 
 "The right of a wife to insure the life of her husband is not 
 property, and when he uses trust funds in his hands, to procure 
 therewith insurance for her benefit, paying the premiums en- 
 tirely out of the fund, it may not be said that he has mingled 
 such fund with other property, and that the policy is the prod- 
 uct of both; but the cestui que trust is entitled to the benefit 
 of the whole policy." Holmes v. Oilman, 138 N. Y. 369. See 
 also Ferris v. Van Hicks, 170 N. Y. 195. 
 
TRtrsTS 429 
 
 Q. A father is intrusted with $10,000 by a will, to hold in 
 trust for his infant son. He buys real estate with the money 
 and takes title in his own name. He subsequently sells the 
 same to a third party, who pays full value and has no notice 
 of the fact. The son on becoming of age consults you. What 
 would you advise? 
 
 A. He cannot follow the property into the hands of the third 
 party as the latter is a bona fide purchaser; his only remedy 
 is by an action against the father. "In courts of equity, the 
 doctrine is well settled and uniformly applied, that when a 
 person standing in a fiduciary relation misapphes or converts 
 a trust fund into another species of property, the beneficiary 
 will be entitled to the property acquired. The doctrine is 
 illustrated and applied most frequently in cases of trust, where 
 trust moneys have been, by the fraud or violation of duty of 
 the trustee, diverted from the purposes of the trust, and con- 
 verted into other property. In such cases, a court of equity 
 will follow the trust fund into the property into which it has 
 been converted, and appropriate it for the indemnity of the 
 beneficiary. It is immaterial in what way the change has 
 been made, whether money has been laid out in land, or land 
 has been turned into money, or how the legal title to the con- 
 verted property has been placed. Equity only stops the pur- 
 suit when the means of ascertainment fail, or the rights of bona 
 fide purchasers for value and without notice of the trust have 
 intervened." Newton v. Porter, 69 N. Y. 133; Welch v. 
 Polley, 177 N. Y. 117; Lightfoot v. Davis, 198 N. Y. 261; 
 Jaffe V. Weld, 155 App. Div. 110. Section 95 of the Real 
 Property Law (Consolidated Laws, chap. 50), shows that the 
 son in this case cannot claim that a trust for his benefit re- 
 sulted in the property as against the bona fide purchaser. This 
 section provides as follows: "An implied or resulting trust shall 
 not be alleged or established, to defeat or prejudice the title of 
 a purchaser, for a valuable consideration without notice of the 
 trust." Reitz v. Reitz, 80 N. Y. 538; Hoach v. Weicken, 118 
 N. Y. 67. 
 
 Q. X devises a piece of real property to his niece Y for life. 
 
430 TRUSTS 
 
 and remainder to Z on Y's death, with the power to Y, during 
 her life to sell the same and use the proceeds to her own use. 
 A creditor has recovered a judgment against Y and issues an 
 execution and attempts to sell the property under his execution. 
 What are Z's rights in the matter on the above facts? 
 
 A. Z cannot prevent the sale as Y had the absolute power of 
 disposition as she was granted the power to dispose of the entire 
 fee for her own benefit. It is the same as an absolute ownership 
 when not accompanied by a trust. The estate for life or years 
 when the power is exercised is thus changed into a fee. This 
 rule has been well settled. Gamond v. Jones, 2 Hill, 574; 
 Terry v. Wiggins, 47 N. Y. 516; Coleman v. Heach, 97 N. Y. 
 558; Van Home v. Campbell, 100 N. Y. 123. The Real Property 
 Law, sec. 149, has continued this rule and is as follows: "Where 
 an absolute power of disposition, not accompanied by a trust, 
 is given to the owner of a particular estate for life or for years, 
 such estate is changed into a fee absolute in respect to the 
 rights of creditors, purchasers and incumbrancers, but subject 
 to any future estates limited thereon, in case the power of ab- 
 solute disposition is not executed, and the property is not sold 
 for the satisfaction of debts." See also Farmers' Loan & Trust 
 Co. V. Kib, 192 N. Y. 266; Stafford v. Washburn, 145 App. 
 Div. 784. See also sees. 150 to 153, inclusive, of the Real Prop- 
 erty Law (Consolidated Laws, chap. 50). 
 
 Q. A gives his attorney, B, $5,000 to invest in bond and 
 mortgage. B takes the money and purchases a piece of land 
 with it, taking title thereto in his own name. What are A's 
 rights? 
 
 A. A can compel a conveyance to himself, as a trust re- 
 sulted in his favor, according to sec. 94 of the Real Property 
 Law (Consolidated Laws, chap. 50), which is as follows: "A 
 grant of real property for a valuable consideration, to one per- 
 son, the consideration being paid by another, is presumed 
 fraudulent as against the creditors, at that time, of the person 
 paying the consideration, and, unless a fraudulent intent is 
 
TBUSTS 431 
 
 disprovei^, a trust results in favor of such creditors, to an extent 
 necessary to satisfy thfeir just demands; but the title vests in 
 the grantee, and no use or trust results from the payment to 
 the person paying the consideration, or in his favor, unless the 
 grantee either, 1. Takes the same as an absolute conveyance, 
 in his own name, without the consent or knowledge of the per- 
 son paying the consideration, or, 2. In violation of some trust, 
 purchases the property so conveyed with money or property belong- 
 ing to another." Reitz v. Reitz, 80 N. Y. 538; Hoach v. Weiken, 
 
 118 N. Y. 67. 
 
 Q. A father, with the intention of defrauding his creditors, 
 purchases a certain piece of property for $5,000, but by his 
 direction the deed is drawn in the name of his son. Subse- 
 quently, he demands that the son reconvey the land to him, 
 and upon the son's refusal, brings an action in equity, alleging 
 that the son, at the time of the transaction, agreed with him 
 that he would reconvey the property whenever the father so 
 desired. Judgment for whom and why? 
 
 A. Judgment for the son. "Voluntary conveyances are 
 effectual as between the parties, and cannot be set aside by the 
 grantor though he afterwards becomes dissatisfied with the 
 transaction. Where land is purchased by a father and paid 
 for by him, but the conveyance is made to his son by the direc- 
 tion of the father for the purpose of defrauding the creditors 
 of the latter, no trust will result in favor of the father in con- 
 sequence of his having paid the consideration money; but as 
 between the father and the son, the conveyance is absolute 
 and vests in the son the entire legal and equitable interest." 
 Proseus v. Mclntyre, 5 Barb. 424; McCartney v. Letsworth, 
 
 119 App. Div. 547; Binkowski v. Moskiewitz, 144 App. 
 Div. 161. 
 
 Q. G, a widow, was the owner of a piece of property in the 
 City of New York, on which there was a mortgage. She had 
 three children, all of whom, except a son, H, were infants. 
 Beiag unable to manage the property, she conveyed the same 
 
432 TRUSTS 
 
 to H without consideration in pursuance of a parol agreement 
 and promise, by H, to hold the same for the benefit of the chil- 
 dren, in common with himself. H was to have the accruing 
 rents, and was to pay the interest on the mortgage and the taxes 
 on the property. Thereafter G died. H performed his agree- 
 ment during her life and for some time thereafter. He then sold 
 the property and with part of the proceeds bought other real es- 
 tate and took title thereto in his own name. Thereafter he repu- 
 diated his parol agreement and claimed to be the owner of the 
 property. What rights and remedy, if any, have the other 
 children? How does the Statute of Frauds affect the case? 
 
 A. They have the right to bring an action in equity to compel 
 performance of the agreement. In Goldsmith v. Goldsmith, 
 145 N. Y. 313, a case exactly in point, it was held: "That the 
 arrangement was founded upon the relation of mother and son, 
 and brothers and sisters, and involved the trust and confidence 
 growing out of these relations; that the denial by defendants 
 of the rights of the plaintiffs was a fraud upon them and upon 
 the purpose of the deceased mother; that, conceding no express 
 trust was created, a trust might be implied and properly en- 
 forced to prevent and redress the fraud, which trust is un- 
 affected by the Statute of Frauds, When a person, through 
 the influence of a confidential relation, acquires title to prop- 
 erty, the court, to prevent an abuse of confidence, may im- 
 press upon the property an implied trust and so grant relief." 
 See also Fairchild v. Edsar, 154 N. Y. 199. 
 
 (Note.) " Where a grantor in contemplation of death and for the purpose 
 of making an equitable disposition of his property between those entitled to 
 it, has conveyed it to his wife, who had no other property, upon her express 
 promise, which was a part of the consideration of the conveyance, that she 
 would pay a specified sum to his grandchild, while no express trust is created 
 by the deed or her promise, upon her refusal to pay, equity will declare the 
 grantee a trustee ex male ficio for the protection of the intended beneficiary, 
 the trust not affecting the deed, but acting upon the gift as it reaches the 
 possession of the grantee, and will compel payment out of the property con- 
 veyed." Ahrens v. Jones, 169 N. Y. 555. 
 
 Q. A executed and delivered to a New York Trust Co. a 
 deed of trust to his real estate, the income of which he directed 
 
TRUSTS 433 
 
 should be paid to him during his life, and at his death the prop- 
 erty should be conveyed to persons designated in his will, or to 
 his heirs at law in case no such persons are designated. There- 
 after A becomes indebted to B for $10,000. B obtains judgment 
 against A for the $10,000; execution is returned unsatisfied. 
 What is the nature and effect of the trust deed, and what are 
 the rights of B? 
 
 A. The trust is void and B can follow the property. "A 
 person will not be allowed to put his property in trust with 
 remainder over, reserving to himself the life interest subject to 
 the expenses of the trust, and thereby put the life interest be- 
 yond the reach of creditors whose claims arose after the crea- 
 tion of the trust. A trust created by the debtor, and by which 
 he is the beneficiary, does not protect his interest from the 
 claims of creditors." Schenck v. Barnes, 156 N. Y. 316. 
 
 Q. A is trustee of an estate. He puts $5,000 of the trust 
 funds in a bank together with $5,000 of his own money. The 
 entire amount was credited to him personally. The bank fails. 
 No fraud is charged against the trustee. Is he liable to the 
 estate for the loss sustained? 
 
 A. The trustee is hable. "A strict observance of established 
 rules requires that trust funds received for investment, in the 
 absence of any discretion in the matter, shall be invested as 
 speedily as it is reasonably possible, in the modes which the 
 law recognizes to be prudent and proper. While awaiting in- 
 vestment or distribution, it is manifestly in the line of the more 
 correct performance of the trustee's duty, that he shall place 
 and hold them separately and apart from his own funds. If 
 he fail to do so, and loss ensues, he becomes personally liable." 
 Matter of Nesmith, 140 N. Y. 609. 
 
 Q. For what purposes may trusts be created in this state? 
 
 A. Trusts may be created for the four purposes mentioned 
 in sec. 96 of the Real Property Law (Consolidated Laws, chap. 
 50), which are as follows: "1. To sell real property for the 
 28 
 
434 TRUSTS 
 
 benefit of creditors. 2. To sell, mortgage or lease real property 
 for the benefit of annuitants or other legatees, or for the pur- 
 pose of satisfying any charge thereon. 3. To receive the rents 
 and profits of real property, and apply them for the use of any 
 person, during the life of that person, or for any shorter term, 
 subject to the provisions of law relating thereto. 4. To receive 
 the rents and profits of real property, and to accumulate the 
 same for the purposes, and within the limits, prescribed by law," 
 
 Q. A goes to the X Savings Bank and opens an account in 
 the name of B. A does not inform B of what he has done, nor 
 does he at the time of making the deposit, make any statement 
 or declaration to the receiving teller beyond giving his name, 
 address, etc. A subsequently dies intestate, and his heirs and B 
 both claim the money. Who is entitled to it? State your reasons. 
 
 A. The heirs are entitled to the money. "To constitute 
 a trust there must be either an explicit declaration of trust or 
 circiunstances which show beyond reasonable doubt that a 
 trust was intended to be created, A trust may not be implied 
 from a mere deposit in a savings bank by one person in the 
 name of another. To constitute a valid gift of personal prop- 
 erty there must be on the part of the donor an intent to give 
 and a delivery in pursuance of such an intent, of the thing 
 given to or for the donee. The delivery may be either by 
 actually transferring the manual custody of the thing given 
 to the donee, or by giving to him the symbol which represents 
 possession. The delivery, however, whether actual or con- 
 structive, must be such as will operate to divest the donor of 
 possession of and dominion over the subject of the gift. While 
 a deposit in a savings bank by one person of his own money, 
 in the name of another, is consistent with an intent on the 
 part of the depositor to give the money to the other, it does 
 not alone, unaccompanied by any declaration of intention, 
 authorize a finding that the deposit was made with that intent, 
 at least where the deposit was to a, new account, and the de- 
 positor received and retained a pass-book, the possession and 
 retention of which, by the rules of the bank, known to the 
 
TRUSTS 435 
 
 depositor, is made the evidence of a right to draw the deposit." 
 Beaver v. Beaver, 117 N. Y. 421; McMahon v. Cronin, 143 
 App. Div. 842; Matter of Van Alstyne, 207 N. Y. 306. 
 
 Q. A goes to the X Bank and opens an account in his own 
 name in trust for B, an old college friend. He does not notify 
 B that he has opened such an account, nor does he deliver 
 the bank book to B. A thereafter dies and the heirs and B both 
 claim the amount in the bank. Who is entitled to the money 
 and why? 
 
 A. B is entitled to the money. "The doctrine laid down 
 by this court in the previous cases amounts to this, that the 
 act of a depositor in opening an account in a savings bank in 
 trust for a third party, the depositor retaining possession of 
 the bank book and failing to notify the beneficiary, creates a 
 trust if the depositor dies before the beneficiary, leaving the 
 trust account open and unexplained." Bartlett, J., in Cunning- 
 ham V. Davenport, 147 N. Y. 47. See also Haux v. Dry Dock 
 Sav. Inst., 154 N. Y. 736; Matter of Barefield, 177 N. Y. 387. 
 The cases where one makes a deposit in the name of another 
 and where one makes a deposit in trust for another must be 
 distinguished. In the former in the absence of expressed in- 
 tention no trust is created; in the latter case unexplained, a 
 presmnption that a trust was intended, arises. "A deposit 
 by one person of his own money in his own name as trustee 
 for another, standing alone, does not establish an irrevocable 
 trust during the lifetime of the depositor. It is a tentative 
 trust merely, revocable at will, until the depositor does or 
 completes the gift in his lifetime by some unequivocal act or 
 declaration, such as delivery of the pass-book or notice to the 
 beneficiary. In case the depositor dies before the beneficiary 
 without revocation, or some decisive act or declaration of 
 disaJBfirmance, the presumption arises that an absolute trust 
 was created as to the balance on hand at the death of the de- 
 positor." Matter of Totten, 179 N. Y. 112. 
 
 Q, A recovers judgment against B, B has no property, 
 except the income of a trust fund which he receives under the 
 
436 TRUSTS 
 
 provisions of a will made by his father, A issues execution 
 on the judgment, and the execution is returned unsatisfied. 
 He consults you as to whether or not he can reach the trust 
 fund. What would you advise him? 
 
 A. He can reach the sum in excess of the amount necessary 
 for B's support and education, according to sec. 98 of the Real 
 Property Law (Consolidated Laws, chap. 50), which is as 
 follows: "Where a trust is created to receive the rents and 
 profits of real property, and no valid direction for accumula- 
 tion is given, the surplus of such rents and profits, beyond 
 the sum necessary for the education and support of the bene- 
 ficiary, shall be liable to the claims of his creditors in' the same 
 manner as other personal property, which cannot be reached 
 by execution." Buttar v. Baudome, 177 N. Y, 530, aff'g 84 
 App. Div. 215; Tooles v. Wood, 99 N. Y. 616. 
 
 (Note.) Code of Civ. Pro., sec. 1391, permits an execution upon a judg- 
 ment for necessaries to be issued and requires payment upon thie judgment 
 of ten per cent of the income of the trust fund. See also King v. Irving, 103 
 App. Div. 420; Sloane v. Tiffany, 103 App. Div. 540; Brearley School v. 
 Ward, 201 N. Y. 358. 
 
 Q. A dies leaving his entire estate to B in trust for the sup- 
 port and maintenance of his only son C, with power in C to 
 declare the trust at an end when he (C) becomes twenty-five 
 years of age, and to take possession of the entire estate. A 
 judgment was entered against C for a business debt when he 
 was twenty-four years of age. There is no other property of 
 C's, and the trustee refuses to pay the same. C, on becoming 
 twenty-five years of age, refuses to declare the trust at an end. 
 How can the judgment be collected? Why? 
 
 A. The judgment can be collected from the trust estate 
 when C becomes twenty-five years of age. One cannot by 
 keeping his property in trust defeat the just demands of his 
 creditors, therefore when C arrived at the age designated in 
 the instrument creating the trust, he was entitled to the pos- 
 session of the estate, and his refusal to declare the trust at an 
 end, would not relieve his estate from his debts. In the early 
 
TRUSTS 437 
 
 case of Hallett v. Thompson, 5 Paige, 583, Chancellor Wal- 
 worth said that: "It was contrary to public poHcy to permit 
 a person to have the absolute and uncontrolled ownership 
 of property for his own purposes, and to be able at the same 
 time to keep it from his creditors." This case has been fre- 
 quently cited with approval and followed. Williams v. Thorn, 
 70 N. Y. 273; Wendt v. Walsh, 164 N. Y. 154; UUman v. 
 Cameron, 186 N. Y. 339. In the case last cited Vann, J., at 
 p. 345 says: "Although possession and title are thus subject to 
 his control, it is insisted that until he calls for possession the 
 property is not liable for his debts. The law will not endure 
 this when creditors ask its aid to prevent it, but will declare 
 the estate to be vested as to them." 
 
CHAPTER XIX 
 
 Wills and Administration 
 
 Q. A, nineteen years of age, makes a will leaving all her 
 personal property to her brother Thomas, and all her real 
 property to her brother John. This will is attacked on the 
 ground of the infancy of the testatrix. Is the will good? How 
 far good, if good at all? 
 
 A. As to the personal property the will is good, but as to the 
 real estate the will is not good, being made by a minor. The 
 law of this state is that an infant cannot make a will of real 
 estate, according to sec. 10 of Decedent Estate Law (Con- 
 solidated Laws, chap. 13), which is as follows: "All persons, 
 except idiots, persons of unsound mind and infants, may devise 
 their real estate, by a last will and testament, duly executed, 
 according to the provisions of this article." As to the personal 
 property the will of a male of eighteen years or over, and of a 
 female of sixteen years or over, is valid. Section 15 of Decedent 
 Estate Law so provides, and is as follows: "Every male person 
 of the age of eighteen years or upwards, and every female of the 
 age of sixteen years or upwards, of sound mind and memory, 
 and no others, may give and bequeath his or her personal 
 estate, by will in writing." See Matter of Freeman, 46 Hun, 
 548; Wells v. Seeley, 47 Hun, 109. 
 
 Q. Objections had been duly filed to the probate of the last 
 will and testament of B on the ground that at the time of its 
 execution, B was. of unsound mind and incompetent. A, who 
 was not a witness to the will, and who was a nonprofessional 
 and not an expert, but of unusual inteUigence and very familiar 
 with the acts and conduct of B, was called as a witness to show 
 the competency of B. How, and to what extent, can his 
 438 
 
WILLS AND ADMINISTKATION 439 
 
 opinion be given in evidence on the question involved? Answer 
 fully. 
 
 A. In this state, A would be merely allowed to testify to acts 
 of the testator observed by him, and to characterize them as 
 rational or irrational, and give the impression produced thereby 
 on his mind. But he would not be allowed to state his opinion 
 as to the testator's sanity or insanity. ' ' Where non-professional 
 witnesses, who did not attest the execution of a will, are exam- 
 ined as to matters within their own observation, bearing upon 
 the competency of the testator, they may characterize, as in 
 their opinion, rational or irrational, the acts and declarations 
 to which they testify, but the examination must be limited to 
 their conclusions from the specific facts they disclose, and they 
 cannot be permitted to express their opinions on the general 
 question whether the mind of the testator was sound or un- 
 sound. An exception to this rule is admitted in the case of 
 attesting witnesses, whose testimony relates to the condition of 
 the testator at the very time of executing the will, and who may 
 well retain a recollection of the general result of their observa- 
 tion after the particular circumstances have been effaced by 
 lapse of time." Clapp v. FuUerton, 34 N. Y. 490, a leading 
 case. Dougherty v. Milliken, 163 N. Y. 527; In re Campbell's 
 Will, 136 N. Y. Supp. 1086; Will of Sandberg, 75 Misc. 38. 
 
 Q. A was an invaUd and lived with B for several years pre- 
 ceding his death. He was attended and nursed by B with great 
 care and attention. He told B that he would provide for him 
 in his will as a reward for his kindness. A, by his will, leaves 
 most of his property to B. The relatives of A contest the will 
 on the ground of undue influence. It does not appear that 
 B coerced or forced A into making the will. Shall probate be 
 granted? Answer fully. 
 
 A. Probate should be granted, as the facts do not show un- 
 due influence. "To make a good will a man must be a free 
 agent. But all influences are not unlawful. Persuasion ap- 
 peals to the affection or ties of kindred, to a sentiment of grat- 
 
440 WILLS AND ADMINISTRATION 
 
 itude for past services, or pity for future destitution, or the 
 like— these are all legitimate and may be fairly pressed on a 
 testator. On the other hand, pressure of whatever character, 
 whether acting on the fears or the hopes, if so exerted as to 
 overpower the vohtion without convincing the judgment, is a 
 species of restraint under which no vahd will can be made. 
 Importunity or threats, such as the testator has not the courage 
 to resist, moral command asserted and yielded to for the sake of 
 peace and quiet, or escaping from distress of mind or social dis- 
 comfort, these, if carried to a degree in which the free play of 
 the testator's judgment, discretion or wishes is overborne, will 
 constitute undue influence, though no force is either used or 
 threatened. In a word, a testator may be led, but not driven; 
 and his will must be the offspring of his own volition and not 
 the record of some one else's." Hall v. Hall, L. R. 1 P. & D, 
 481. The tests given in this case, as to what constitutes undue 
 influence, have been adopted in this state. See Tyler v. 
 Gardner, 35 N. Y. 559; RoUwagen v. Rollwagen, 63 N. Y. 519; 
 Matter of Budlong, 126 N. Y. 423; Matter of Seagrist, 1 App. 
 Div. 619, aff'd in 153 N. Y. 682. 
 
 Q. A person is about to execute his will. The instrinnent is 
 ready for execution, and you are called in to advise the proper 
 formalities. What are they? 
 
 A. Section 21 of Decedent Estate Law provides as follows: 
 "Every last will and testament of real or personal property, or 
 both, shall be executed and attested in the following manner: 
 
 1. It shall be subscribed by the testator at the end of the will. 
 
 2. Such subscription shall be made by the testator in the 
 presence of each of the attesting witnesses, or shall be ac- 
 knowledged by him, to have been so made, to each of the at- 
 testing witnesses. 3. The testator, at the time of making such 
 subscription, or at the time of acknowledging the same, shall 
 declare the instrument so subscribed, to be his last will and 
 testament. 4. There shall be at least two attesting witnesses, 
 each of whom shall sign his name as a witness, at the end of the 
 will, at the request of the testator." It is important for the 
 
WILLS AND ADMINISTRATION 441 
 
 witnesses to observe the provisions of sec. 22 of Decedent 
 Estate Law, which are as follows: "The witnesses to any will, 
 shall write opposite to their names their respective places of 
 residence; and every person who shall sign the testator's name 
 to any will by his direction, shall write his own name as a 
 witness to the will. Whoever shall neglect to comply with 
 either of these provisions, shall forfeit fifty dollars, to be re- 
 covered by any person interested in the property devised or 
 bequeathed, who will sue for the same. Such omission shall 
 not affect the validity of any will; nor shall any person liable 
 to the penalty aforesaid, be excused or incapacitated on that 
 account, from testifying respecting the execution of such will." 
 
 Q. What are nuncupative wills, and by whom and under 
 what circumstances, can such wills be made? 
 
 A. Section 16 of Decedent Estate Law provides as follows: 
 "No nuncupative or unwritten will, bequeathing personal 
 estate, shall be valid, unless made by a soldier while in actual 
 military service, or by a mariner, while at sea." It should be 
 observed that a nuncupative will is an oral will, and can only 
 be made bequeathing personal property. It is not necessary 
 that a nuncupative will should be made in the last sickness and 
 in prospect of death. Matter of Thompson, 4 Bradf. 154; 
 Matter of O'Connor, 65 Misc. 403. "Before a nuncupative 
 will is admitted to probate its execution and the tenor thereof 
 must be proved by at least two witnesses." Section 2618 of 
 Code of Civ. Pro. 
 
 Q. A was the captain and owner of a coasting vessel. On a 
 certain day, when the vessel was lying at anchor in Delaware 
 Bay inside the breakwater, about a mile from land, he was taken 
 suddenly sick on board and died. Just before his death, he 
 told several witnesses that he wished his wife to have all his 
 property. He did not make any request to them to bear wit- 
 ness that it was his wiU. The wife appUes for probate as of a 
 nuncupative will. The father of A contests the same, claiming 
 that A died intestate. Should probate be allowed? 
 
442 WILLS AND ADMINISTRATION 
 
 A. Yes. "The testator was a mariner within the meaning 
 of the statute. A nuncupative will may be made by the master 
 of a coasting vessel whilst on his voyage, though then lying at 
 anchor in an arm of the sea where the tide ebbs and flows. It is 
 enough that the testator, in prospect of death, state his wishes 
 in answer to questions what disposition he desires to make of his 
 property; it is not requisite that he should request those present 
 to witness that such is his will." Hubbard v. Hubbard, 8 
 N. Y. 196. 
 
 Q. A, while upon his deathbed and while in full realization 
 of his condition, gave to B his bank book on a savings bank, 
 saying that he gave it to him as his own. Is this gift vaHd? 
 
 A. The gift is vaUd; it is a gift causa mortis. "The gift was 
 consummated by the delivery of the book, and no other for- 
 mality was necessary to constitute the actual delivery of the 
 bank deposit, needful to vest the possession and title in the 
 donee; any delivery of property is sufficient to effectuate a 
 gift. To consummate a gift, whether inter vivos or causa mortis, 
 the property must be actually delivered, and the donor must 
 surrender the possession and dominion thereof to the donee. 
 In the case of gifts inter vivos, the moment the gift is thus con- 
 summated, it becomes absolute and irrevocable. But in the 
 case of gifts causa mortis, more is needed. The gift must be 
 made under the apprehension of death from some present 
 disease or some other impending peril, and it becomes void 
 by the recovery from the disease or escape from the peril. 
 It is also revocable by the donor, and becomes void by the 
 death of the donee in the lifetime of the donor. When a gift 
 is made in the apprehension of death from some disease from 
 which the donor did not recover, and the apparent immediate 
 cause of death was some other disease with which he was 
 afflicted at the same time, the gift becomes effectual. It is 
 not needful that the gift be made in extremis when there is 
 no time or opportunity to make a will. In many of the reported 
 cases the gift was made weeks and even months before the 
 death of the donor, when there was abundant time and op- 
 
WILLS AND ADMINISTRATION 443 
 
 portunity for him to have made a will." Ridden v. Thrall, 
 125 N. Y. 572. See also Augsbury v. Shurthff, 180 N. Y. 146; 
 Matter of Spaulding, 49 App. Div. 548. "To constitute a valid 
 gift causa mortis, three things are necessary: 1. It must be 
 made with a view to the donor's death. 2. The donor must 
 die of that ailment or peril. 3. There must be a delivery." 
 Grymes v. Hone, 49 N. Y. 17. 
 
 Q, A wrote his own will, and taking it to his friends told 
 them that it was his last will and testament, and asked them to 
 witness it. They signed their names as witnesses to the will. 
 Immediately afterwards A signed the will in the proper place, 
 and gave it to one of his friends to keep it for him. One of 
 the relatives of A objects to its admission to probate. What 
 are his rights? 
 
 A, Probate should be denied. In this state, the witnesses 
 must sign after the testator has signed, for the fact that the 
 testator has signed is one of the things which the witness is 
 to attest. "It is essential to the due execution of a will, that 
 the witnesses, who are to attest the subscription and publica- 
 tion thereof by the testator, should sign the same after the 
 subscription by him." Jackson v. Jackson, 39 N. Y. 153; Dack 
 V. Dack, 84 N. Y. 665; In re Crumb's Will, 127 N. Y. Suppl. 
 271. 
 
 Q. A drew his will upon a printed blank which was folded 
 in the middle, so as to make four consecutive pages. The at- 
 testation clause was at the top of the second page, and the will 
 was executed at that point by the testator and the subscribing 
 witnesses. The third page contained further dispositions of 
 property. The third page was numbered "two," and the 
 second page "three," the draftsman having passed to the third 
 page after he had filled the first. Objections are raised to the 
 admission of the will to probate on the ground that the same 
 was not subscribed at the end to comply with the statute. 
 ■What should the surrogate do? 
 
 A. The will should be refused probate, as it was not properly 
 
444 WILLS AND ADMINISTKATION 
 
 executed. "The will was not subscribed by the testator 'at 
 the end of the will' as required by the statute. The doctrine 
 of incorporation cannot be successively invoked, so as to read 
 into such will the alleged second page, as the result would be 
 to permit an invasion of the statute." Matter of Andrews, 
 162 N. Y. 1. The case of Matter of Field, 204 N. Y. 448, is 
 called attention to; this case while not overruling Matter of 
 Andrews, supra, does nevertheless limit it, very strictly. 
 
 Q. A makes his will and calls in two subscribing witnesses. 
 He covers up part of the will, and tells the witnesses that be- 
 cause of certain things contained in it, he does not care to let 
 them see it. He tells them that he has signed it, but they can- 
 not see his signature. The witnesses subscribe in the proper 
 place. The will is offered for probate. Objected to. What 
 should be the decision? 
 
 A. The will should be denied probate, as it was not properly 
 acknowledged. ' ' There would undoubtedly have been a formal 
 execution of the will, in compliance with the statute, if the 
 witnesses had at the time seen the signature of the testator to 
 the will. Subscribing witnesses are required by law, for the 
 purpose of attesting and identifying the signature of the testator, 
 and that they cannot do, unless at the time of the attestation 
 they see it. And so it has been held in this court. ... A 
 signature neither seen, identified, or in any manner referred to 
 as a separate and distinct thing, cannot in any just sense be 
 said to be acknowledged by a reference to the entire instru- 
 ment by name to which the signature may, or may not be at 
 the time subscribed. The formalities prescribed by the statute 
 are safeguards thrown around the testator to prevent fraud 
 and imposition. To this end, the witnesses should either see 
 the testator sign his name, or he should, the signature being 
 visible to him and to them, acknowledge it to be his signature." 
 Earl, J., In re Mackay's Will, 110 N. Y. 611. See also Matter 
 of Keefe, 155 App. Div. 578. 
 
 (Note.) "A will should not be refused probate because the attesting 
 witnesses did not look closely to see the testatrix's signature acknowledged 
 
WILLS AND ADMINISTRATION 445 
 
 by her, where it was visible and they heard her acknowledgment, and her 
 declaration that the instrument was her last will, and there is no claim of 
 fraud." Matter of Laudy, 161 N. Y. 429. 
 
 Q. A wrote his will and called ia B and C to witness it. 
 After subscribing it, he showed them his signature on the in- 
 strument, saying to them: "I declare the within to be my free 
 will and deed." B and C thereupon subscribed their names 
 to the instrument. The witnesses did not know that the paper 
 was a will. Objections are raised to the probate of the will. 
 What should the surrogate do? 
 
 A. Probate should be refused. "It will not suffice that the 
 witnesses have elsewhere and from other sources learned that 
 the document which they are called to attest is a will, or that 
 they suspect and infer from the circumstances that such is the 
 character of the paper. The fact must in some manner, al- 
 though no particular form of words is required, be declared by 
 the testator in their presence, that they not only know the 
 fact, but that they may know it from him, and that he under- 
 stands it, and at the time of its execution, which includes 
 publication, design to give effect to it as his will, and to do 
 this, among other things, they are required by statute to at- 
 test. The declaration that the instrument was his free will and 
 deed, was equivocal, and would be satisfied by a deed executed 
 voluntarily. It did not necessarily inform the witnesses that it 
 was a will by excluding every other instrument from the mind. 
 From the expression they could not know that the testator did 
 not suppose that the instrument was a deed." Allen, J., in Lewis 
 v. Lewis, 11 N. Y. 220. See also Trustees, etc., v. Calhoun, 25 
 N. Y. 422; Matter of Morley, 140 App. Div. 823. 
 
 Q. A wrote his will and summoned two friends to his house 
 for the purpose of witnessing it. They came there, saw the 
 testator subscribe his name, and signed their names as witnesses. 
 Before doing so, one of them asked the testator if he requested 
 him to sign the will as a witness; to which he answered in the 
 affirmative. Both the witnesses then proceeded to sign, the 
 testator and the witnesses all being at a table and in close 
 
446 WILLS AND ADMINISTRATION 
 
 proximity to each other. Objection is raised to the probate of 
 the will on the ground that there was not a proper execution. 
 What should be the decision? Answer fully. 
 
 A. The will was properly executed, and should be admitted 
 to probate. "Now, the statute, it is true, declares that each 
 witness must sign on such request. But the manner and form 
 in which the request must be made, and the evidence by which 
 it must be proved, are not prescribed. We apprehend it is 
 clear that no precise words, addressed to each of the witnesses 
 at the very time of the attestation, is required. Any communi- 
 cation importing such request, addressed to one of the witnesses 
 in the presence of the other, and which, by a just construction 
 of all the circumstances, is intended for both, is, we think, 
 sufficient. ... In thus requiring both the witnesses to be 
 present, and in thus answering the interrogatory addressed 
 to him by one of them, we think that he did, in effect, request 
 them both to become the subscribing witnesses to the instru- 
 ment." Comstock, Ch. J., in Coffin v. Coffin, 23 N. Y. 9. 
 See also Lane v. Lane, 95 N. Y. 494; Matter of Hunt, 110 N. Y. 
 278. 
 
 Q. A signed his will in the presence of the draftsman and the 
 witnesses. B, the draftsman, then, in the presence of the testa- 
 tor and the witnesses, said to the witnesses that the paper A 
 signed was his will, and that he wished them to sign it as wit- 
 nesses. The witnesses then signed the instrument in the 
 proper place. The testator made no dissent, took the will, and 
 thereafter retained it. It is now offered for probate. Should 
 probate be granted? 
 
 A. Yes. There was a valid request to sign. The request 
 need not be made by the testator himself, but can be made by 
 another on his behalf, if the testator assent thereto. Here the 
 conduct of the testator indicated his assent. Peck v. Gary, 27 
 N. Y. 9; Gilbert v. Knox, 52 N. Y. 125; Matter of Nelson, 141 
 N. Y. 152. 
 
 Q. A executed his will while upon his deathbed. He duly 
 
WILLS AND ADMINISTRATION 447 
 
 declared the instrument so executed to be his last will and testa- 
 ment and requested B and C to sign as witnesses. B and C 
 went into an adjoining room and there signed their names as 
 witnesses at the end of the will. Objection is raised to the 
 probate of this will. What should be the decision? 
 
 A. The will should be admitted to probate. It is not nec- 
 essary that the subscribing witnesses should strictly and literally 
 sign their names to the will in the presence of the testator. The 
 statute does not require that the attesting witnesses shall sign 
 in the presence of the testator. Rudden v. McDonald, 1 Bradf . 
 352; Lyon v. Smith, 11 Barb. 125; Matter of PhiUps, 34 Misc. 
 442. 
 
 Q. A subscribed her will in the presence of B and C, the 
 attesting witnesses, and declared the same to be her last will 
 and requested them to sign as witnesses. B, then and there in 
 the presence of A, signed his name at the end of the will. C, 
 the other witness, being in a hurry to get home, left at this 
 stage of the proceedings, saying that she would return. Before 
 she returned, however, B, the other witness, within half an 
 hour brought the will to C's house, and C there signed her name 
 as a witness. Was this a proper execution? 
 
 A. Yes. The statute does not require the witnesses' signa- 
 ture to be afiixed at the moment of the execution of the will, 
 any more than that it should be affixed in the presence of the 
 testator. Herrick v. Snyder, 27 Misc. 462. 
 
 Q. A will is signed by the testator whose witnesses do not 
 sign in the presence of each other. An objection is made to its 
 admission to probate, as not being properly executed. Is the 
 objection good? 
 
 A. The objection is not good, and the will should be admitted 
 to probate. In this state, the statute does not state that the 
 witnesses must sign in the presence of each other, therefore 
 when they sign their names at the end of the will at the request 
 of the testator, it is sufficient. Hoysradt v. Kingman, 22 N. Y 
 
448 WILLS AND ADMINISTRATION 
 
 372; Matter of Diefenthaler, 39 Misc. 765; Matter of Engler, 
 56 Misc. 218. 
 
 Q, A executed his will in the presence of B and the latter 
 signed his name as a witness thereto at the end of the will after 
 being duly requested to do so by A. Shortly thereafter A 
 learning that another witness was required exhibited his sig- 
 nature on the will to C, duly acknowledged the same, requested 
 C to sign the will as a witness, which C thereupon did. Ques- 
 tion is raised as to the sufficiency of the execution. What 
 should the surrogate do? 
 
 A. Admit the will to probate, as it is a proper execution. The 
 testator may sign in the presence of one witness, and there- 
 after acknowledge his signature to the other witness. Willis v. 
 Mott, 36 N. Y. 485. 
 
 Q. A question arises as to the validity of a will which has no 
 attestation clause. What do you say? 
 
 A. If the will was in all other respects properly executed, the 
 fact that it has no attestation clause will not invaUdate it. 
 Matter of Cornel, 89 App. Div. 412. 
 
 Q. A will is offered for probate, the signature of the testator 
 is after the attestation clause. Objection is raised as not being 
 a proper subscription. What do you say? 
 
 A. As an attestation clause is not necessary to a valid will, 
 the signature after the attestation clause is at the end of the 
 will, and therefore valid. Younger v. Duffie, 94 N. Y. 535. 
 
 Q. Draw an attestation clause to a will. 
 
 A. Signed, pubUshed and declared by the above named tes- 
 tator, as and for his last will and testament, in the presence of 
 us, and of each of us, who at his request, and in his presence, 
 and in the presence of each other, have hereunto subscribed 
 our names as subscribing witnesses this 10th day of May, 1915. 
 
 John Brown, residing at 100 Fifth Ave., N. Y. City. 
 
 Thomas Jones, residing at 175 Fifth Avenue, N. Y. City. 
 
WILLS AND ADMINISTRATION 449 
 
 (Note.) It is to be observed, that it is not necessary to have an attestation 
 clause at all, but it is useful for the purpose of proving the will. While the 
 above is the usual form, nevertheless, as we have already seen, it is not neces- 
 sary for the witnesses to sign in each other's presence, or in the presence of 
 the testator. 
 
 Q. The will of A is offered for probate. There was a full 
 attestation clause, but the two witnesses denied all its allega- 
 tions, and also denied that they had signed it. Should probate 
 be allowed? 
 
 A, Yes, if the signatures of the witnesses be proved to be 
 their handwriting. "To believe this evidence, requires us to 
 suppose that the testator deUberately forged the names of wit- 
 nesses to his will, at a time and under circumstances when it 
 was just as convenient to have obtained their genuine signa- 
 tures thereto. It is quite unreasonable to suppose that such a 
 person having drawn and signed a will, and having added 
 thereto a proper attestation clause, should have provided wit- 
 nesses therefor, and required them to sign a certificate to the ef- 
 fect that each of the required formalities had then been ob- 
 served, without also providing for their actual performance. He 
 had knowledge of the necessity of the act required, to the valid- 
 ity of the business he was then transacting, and to hold that he 
 omitted it would oblige us to ascribe to him the intention of 
 performing a vain and useless ceremony at the expense of time 
 and labor to himself, and the commission of a motiveless crime." 
 Ruger, Ch. J., in Matter of Cottrell, 95 N. Y. 329. See also 
 Matter of Walker, 67 Misc. 6; Matter of Francis, 73 Misc. 154. 
 
 Q. You are the attorney for the proponents of a will in 
 which one of the subscribing witnesses is dead, and the other 
 does not remember the transaction. What would you do to 
 have the will admitted to probate? 
 
 A. Section 2612 of the Code of Civ. Pro. governs a case 
 like this, and is in part as follows: "If all the subscribing wit- 
 nesses to a written will be dead, or incompetent by reason 
 of lunacy or otherwise, to testify, or unable to testify, or are 
 29 
 
450 WILLS AND ADMINISTHATION 
 
 absent from the state and their testimony has been dispensed 
 with as provided with in this section, or if a subscribing wit- 
 ness has forgotten the occurrence, or testifies against the exe- 
 cution of the will, or was not present with the other witness at 
 the execution of the will, the will may nevertheless be estab- 
 lished, upon proof of the handwriting of the testator, and of 
 the subscribing witnesses, and also of such other circumstances 
 as would be sufficient to prove the will upon the trial of an 
 action." 
 
 Q. A draws his will, B and C becommg the subscribing 
 witnesses thereto. B receives a legacy of 11,000 by the will. 
 The will is offered for probate, and B is called to testify to its 
 execution. His testimony is objected to. Is he a competent 
 witness? What effect, if any, has the fact of his becoming a 
 witness upon his legacy? 
 
 A. B loses his legacy, but is nevertheless a competent wit- 
 ness, according to sec. 27 of Decedent Estate Law, which is 
 as follows: "If any person shall be a subscribing witness to 
 the execution of any will, wherein any beneficial devise, legacy, 
 interest or appointment of any real or personal estate shall be 
 made to such witness, and such will cannot be proved without 
 the testimony of such witness, the said devise, legacy, interest 
 or appointment shall be void, so far only as concerns such 
 witness, or any claiming under him; and such person shall be a 
 competent witness, and compellable to testify respecting the 
 execution of the said will, in like manner as if no such devise 
 or bequest had been made. But if such witness would have 
 been entitled to any share of the testator's estate in case the 
 will was not established, then so much of the share that would 
 have descended or have been distributed to such witness, shall 
 be saved to him, as will not exceed the value of the devise or 
 bequest made to him in the will, and he shall recover the same 
 of the devisees or legatees named in the will, in proportion 
 to, and out of, the parts devised and bequeathed to them." 
 See Jackson v. Dunston, 4 Johns. 311; Matter of Brown, 31 
 Hun, 166. 
 
WILLS AlStD ADMlNISl'RAl'lON 451 
 
 (Note.) An executor may testify as a subscribing witness without forfeit- 
 ure of his appointment. McDonough v. Loughlin, 20 Barb. 238; Matter of 
 Will of Wilson, 103 N. Y. 374. So also where the legatees under a will are 
 the subscribing witnesses to a codicil of the will, this does not prevent them 
 from taking under the will where it alone is proved, and the codicil does not 
 benefit them and is unnecessary to the proof of the will. Matter of Johnson, 
 37 Misc. 334. 
 
 Q. A makes his will. Subsequently he writes on a paper 
 that he revokes his will as he is not satisfied with its provi- 
 sions, and tells no one of the paper and incloses the same in an 
 envelope. Both the will and the paper are found after A's 
 death. The will is offered for probate. Should probate be 
 allowed? 
 
 A. The will should be admitted to probate, as there was 
 no proper revocation. "The statute is just as rigid on the 
 subject of written revocations, as in regard to the execution 
 of wills. A revocation in writing, to be valid, must be 'exe- 
 cuted with the same formalities with which the will itself was 
 required by the law to be executed.' The testator might have 
 revoked by burning, tearing, canceling, obUterating or de- 
 stroying; but he selected the mode of revocation by writing, 
 and has failed in accomplishing his object for want of the 
 necessary formalities." Nelson v. PubUc Admr., 2 Bradf. 210. 
 Section 34 of Decedent Estate Law, governing the revocation 
 of a will, is as follows: "No will in writing, except in the cases 
 hereinafter mentioned, nor any part thereof, shall be revoked, 
 or altered, otherwise than by some other will in writing, or 
 some other writing of the testator, declaring such revocation 
 or alteration, and executed with the same formalities with 
 which the will itself was required by the law to be executed; 
 or unless such will be burnt, torn, canceled, obUterated or 
 destroyed, with the intent and for the purpose of revoking 
 the same, by the testator himself, or by another person in 
 his presence, by his direction and consent; and when so done 
 by another person, the direction and consent of the testator, 
 and the fact of such injury or destruction, shall be proved by 
 at least two witnesses." 
 
452 WILLS AND ADMINISTRATION 
 
 Q. A makes his will in which he gives a bequest of $5,000 
 to his nephew John. Becoming displeased with the nephew's 
 actions, he takes the will and draws lines through this bequest, 
 intending thereby to revoke the same. What effect, if any, 
 has this upon the will? 
 
 A. This has no effect whatever upon the will, as under the 
 New York statute, there cannot be a revocation of a part by 
 obliteration, even if it be done with the intent to revoke the 
 same. No obliteration can be effective unless it altogether 
 destroys the whole will and was intended to do so. A will 
 can only be admitted to probate in the form and condition 
 it was in when originally executed, if that can be ascertained. 
 A will cannot be revoked either in part or in whole, by a can- 
 cellation of a part of the instrument. Lovell v. Quitman, 88 
 N. Y. 377; Burnham v. Comfort, 108 N. Y. 535; Matter of 
 Curtis, 135 App. Div. 745; Matter of Van Woert, 147 App. 
 Div. 483. 
 
 Q. A, who is unmarried, makes her will leaving all her real 
 and personal property to her mother. She subsequently 
 marries and dies. The will is offered for probate, and is con- 
 tested by her husband on the ground that her marriage acted 
 as a revocation of her will. What should the surrogate do? 
 
 A. The will should be refused probate, as the statute pro- 
 vides that "a will executed by an unmarried woman shall be 
 deemed revoked by her subsequent marriage." This statute 
 has been held good in the face of the Married Women's Acts 
 in Brown v. Clark, 77 N. Y. 369, where it is said: "The statute 
 does not make the marriage a presumptive revocation, which 
 may be rebutted by proof of a contrary intention, but makes 
 it operate eo instanti as a revocation." See also Croner v. Cowd- 
 ray, 139 N. Y. 471. Section 36 of Decedent Estate Law has 
 continued the same language of the former statute. 
 
 Q. B, the widow of A, makes her will leaving all her prop- 
 erty to her brother John. She subsequently marries C and 
 
WILLS AND ADMINISTRATION 453 
 
 dies, leaving him surviving. The executor appointed in the 
 will offered the instrument for probate, but was opposed in 
 his proceedings by C. What should be the decision of the 
 court? 
 
 A. The will should be denied probate, as it was revoked 
 by the marriage of B with C. The will of a widow is revoked 
 by her subsequent marriage. "The unmarried woman re- 
 ferred to by the statute must be defined according to that rule 
 of statutory construction which requires that the words used 
 in legal enactments shall be understood and taken in their 
 ordinary and familiar significance. So read, the immarried 
 woman of the statute is the woman who is not in a state of 
 marriage." Matter of Kaufman, 131 N. Y. 620. See also 
 Near v. Shaw, 76 Misc. 303. 
 
 Q. A, the wife of B, makes a will leaving all her property 
 both real and personal, to her sister. Subsequent to the making 
 of the wUl, B dies. A thereafter marries C, and dies leaving 
 him surviving. The will is offered for probate. C contests. 
 What should be the decision? 
 
 A. The will should be admitted to probate. A will made 
 by a married woman is not deemed revoked by her marrying 
 again after an intervening widowhood. Matter of McLarney, 
 153 N. Y. 416. It will be observed that the will here was made 
 by a woman who was married at the time she executed it. So 
 also where a married woman makes a will, is subsequently 
 divorced and remarries, the will is not revoked. Matter of 
 Bm-ton, 4 Misc. 512. 
 
 Q. A makes a will leaving all his property to his brother. 
 He afterwards marries, has a child, and dies without making 
 any change in his will leaving the child him surviving. The 
 will is offered for probate. Should probate be allowed? 
 
 A. Probate should be denied, as the will was revoked by the 
 testator's subsequent marriage, and birth of issue unprovided 
 for. Section 35 of Decedent Estate Law provides for this as 
 
454 WILLS AND ADMINISTRATION 
 
 follows: "If after the making of any will, disposing of the 
 whole estate of the testator, such testator shall marry, and 
 have issue of such marriage, born either in his Ufetime or after 
 his death, and the wife or the issue of such marriage shall be 
 living at the death of the testator, such will shall be deemed 
 revoked, unless provision shall have been made for such issue 
 by some settlement, or unless such issue shall be provided for 
 in the will, or in such way mentioned therein, as to show an 
 intention not to make such provision; and no other evidence 
 to rebut the presumption of such revocation, shall be received." 
 See Havens v. Van Denburgh, 1 Denio, 27; Adams v. Winne, 
 7 Paige, 77. 
 
 Q. A has $30,000 in government bonds. He makes a will 
 in 1912, whereby he leaves $20,000 to his wife, and the rest to 
 his only child. In 1914 he has another child born to him, and 
 dies in 1915, not having made any change in his will, and not 
 mentioning the second child ia any way. Will the birth of 
 the second child affect the will, and if so, how? 
 
 A. The birth of the second child does not revoke the will, 
 but merely renders it inoperative as to a portion of the estate 
 so as to give the post-testamentary child the share he would 
 have taken had the testator died intestate. This is provided 
 for in sec. 26 of Decedent Estate Law. It is as follows: "When- 
 ever a testator shall have a child born after the making of a 
 last will, either in the lifetime or after the death of such testator, 
 and shall die leaving such child, so after-born, \mprovided for 
 by any settlement, and neither provided for, nor in any way 
 mentioned in such will, every such child shall succeed to the 
 same portion of such parent's real and personal estate, as 
 would have been descended or been distributed to such child, 
 if such parent had died intestate, and shall be entitled to 
 recover the same portion from the devisees and legatees, in 
 proportion to and out of the parts devised and bequeathed to 
 them by such will." See Smith v. Robertson, 89 N. Y. 556; 
 Matter of Murphy, 144 N. Y. 557; Udell v. Stearns, 125 App. 
 Div. 196. 
 
"WILLS AND ADMINISTRATION 455 
 
 Q. A' makes a will devising his house and lot to his son John. 
 Subsequently he sells the same and deposits the proceeds 
 (110,000) in a bank in his own name, but apart from his own 
 funds, and leaves it intact. He dies. What would you advise 
 as to John's rights? 
 
 A. He has no rights whatever, as the devise was revoked by 
 the sale of the house and lot. Gilbert v. Gilbert, 9 Barb. 532; 
 Vandemark v. Vandemark, 26 Barb. 416; Philson v. Moore, 
 23 Hun, 152. "If a testator devises real property, and sells 
 the same before the will takes effect, the proceeds of the sale 
 will become personalty, and no court can substitute the money 
 received by the testator for the land devised." Ametrano v. 
 Downs, 170 N. Y. 388. 
 
 Q. A devises a certain house to B, and thereafter sells the 
 same to C, taking back a purchase money mortgage for $5,000. 
 At A's death, B claims the amount of the mortgage. What are 
 his rights? 
 
 A. B has no right to the mortgage. "Where a lot is specifi- 
 cally devised, and afterwards sold by the testator to a third 
 party, the sale operates quoad hoc as a revocation of the gift, 
 and the devisee acquires no interest in a mortgage given to 
 secure the whole or any portion of the purchase money." 
 McNaughton v. McNaughton, 34 N. Y. 201. 
 
 Q. A makes a will and places it among his papers. After 
 his death, although dihgent search is made, the will cannot be 
 found. The executor named therein attempts to prove the 
 contents thereof as a lost will. What presumption, if any, is 
 there? 
 
 A. Where a will previously executed cannot be found after 
 the death of the testator, it having remained in his custody 
 during his lifetime, there is a strong presumption that it was- 
 destroyed by him animo revocandi. CoUyer v. Collyer, 110 
 N. Y. 481; Matter of Kennedy, 167 N. Y. 163. "If the will 
 had remained in the custody of the testator, or it had appeared 
 
456 WILLS AND ADMINISTRATION 
 
 after its execution, he had had access to it, the presumption 
 of law would be, from the fact that it could not be found, after 
 his decease, that the same had been destroyed by him aninw 
 revocandi. But that presumption is entirely overcome and 
 rebutted, when it appears, as it did in the present case, that, 
 upon the execution of the will, it was deposited by the testator 
 with the custodian, and that the testator did not thereafter 
 have it in his possession or have access to it." Schultz v. 
 Schultz, 35 N. Y. 653. 
 
 Q. A makes a will in 1914, and in 1915 makes a second will, 
 which by its terms expressly revokes the former. At the death 
 of A, the will of 1915 cannot be found, and the beneficiaries of 
 the will of 1914 attempt to have the will of 1914 admitted to 
 probate. Should probate be allowed? 
 
 A. No. Where a will is revoked by the execution of a second 
 will, which provides that all previous wills of the testator are 
 thereby revoked, the first will not be revived by the fact that 
 after the testator's death, the second will cannot be foimd. 
 In re Forbes's Will, 24 N. Y. Suppl. 841; Matter of Barnes, 70 
 App. Div. 523. Section 41 of Decedent Estate Law re-enacts 
 the above rule, and is as follows: "If, after the making of any 
 will, the testator shall duly make and execute a second will, 
 the destruction, canceling or revocation of such second will, 
 shall not revive the first will, unless it appear by the terms of 
 such revocation, that it was his intention to revive and give 
 effect to his first will; or unless after such destruction, canceling 
 or revocation, he shall duly republish his first will." 
 
 (Note.) A will that has been revoked by a later one which was destroyed 
 by the testator, will not be revived by his statement that he desires his 
 first will to stand, made to others than the subscribing witnesses, and where 
 the persons to whom such statement was made, did not subscribe as witnesses 
 to the will. Republication requires the same formalities as publication itself; 
 therefore a will which has been revoked can be revived only by its republica- 
 tion in the presence of its attesting witnesses. Matter of Stickney, 161 N. Y. 
 42; Matter of Cunnion, 201 N. Y. 123. 
 
 Q. A, whose estate amounts to $100,000, leaves $60,000 to 
 Hobart Literary Society, and the rest of his property to his 
 
WILLS AND ADMINISTRATION 457 
 
 children. The children attack the bequest to the society. Is 
 the bequest good? How far good, if good at all? 
 
 A. The bequest to the society is good for $50,000, being 
 one-half of the estate of A, according to sec. 17 of Decedent 
 Estate Law, which is as follows: "No person having a husband, 
 wife, child or parent, shall by his or her last will and testament, 
 devise or bequeath to any benevolent, charitable, literary, 
 scientific, religious or missionary society, association or cor- 
 poration, in trust or otherwise, more than one-half part of his 
 or her estate, after payment of his or her debts, and such devise 
 or bequest shall be valid to the extent of one-half, and no 
 more." Chamberlain v. Taylor, 105 N. Y. 185; Garvey v. 
 Union Trust Co., 29 App. Div. 513. 
 
 Q. A man and his wife make a joint will, each devising their 
 entire estate to the other. Is it valid? If so, what is the effect 
 after the death of one party? 
 
 A. The will is valid. "A mutual will executed by husband 
 and wife, devising reciprocally to each other, is valid. Such 
 an instrument operates as a separate will of whichsoever dies 
 first." Matter of Dietz, 50 N. Y. 88. 
 
 Q. A devises certain property to his son B. B dies before 
 the testator, leaving a son, C, surviving. Thereafter A dies. 
 C and the next of kin of A both claim the property. Who is 
 entitled to it? 
 
 A. C gets the property, as the devise does not lapse. It 
 would have been otherwise if A had left the property to a 
 stranger, but not to his son. Section 29 of Decedent Estate 
 Law, covering this case, provides as follows: "Whenever any 
 estate, real or personal, shall be devised or bequeathed to a 
 child or other descendant of the testator, or to a brother or 
 sister of the testator, and such legatee or devisee shall die 
 during the lifetime of the testator, leaving a child or other 
 descendant who shall survive such testator, such devise or 
 legacy shall not lapse, but the property so devised or bequeathed 
 
458 WILLS AND ADMINISTEATION 
 
 shall vest in the surviving child or other descendant of the 
 legatee or devisee, as if such legatee or devisee had survived 
 the testator and had died intestate." 
 
 (Note.) This provision applies only to descendants, and a widow of a 
 deceased son does not take. Cook v. Munn, 12 Abb. N. C. 344. 
 
 Q. A devises his house and lot and $10,000 to B. He leaves 
 all the rest, residue and remainder of his estate to C. B dies 
 before A, the testator. At A's death, the executors claim B's 
 devise. C also claims it, and D claims it as next of kin of B. 
 B was no relative of the testator. How is the estate to be 
 divided? 
 
 A. C gets all the estate, both real and personal, the devise and 
 bequest to B having lapsed by his death, he being no relative of 
 the testator. "The common-law rule that lapsed devises do 
 not fall into the residue, but go to the heirs as undisposed of 
 by the will, was done away with by the statute, and there is now 
 no difference between lapsed devises and lapsed legacies, as it 
 respects the operation upon them of a general residuary clause." 
 Cruikshank v. Home for the Friendless, 113 N. Y. 358. The 
 rule now, therefore, is that both lapsed legacies and devises go 
 to the residuary devisee and legatee. Matter of OUen, 151 
 N. Y. 243; Moffett v. Ehnendorf, 152 N. Y. 485; Gallavan v. 
 Gallavan, 57 App. Div. 32. 
 
 Q. A father by his will gives a legacy to each of his two 
 children, B and C, on condition that the same shall be void if 
 they contest his will. They both contest, B being of full age, 
 and C a minor by her guardian. What is the effect of the con- 
 test by both? Is the provision in the will valid? 
 
 A. The provision in the will is valid as to the adult, but in- 
 valid as to the minor, and the effect would be to forfeit B's 
 legacy. As to the minor, the condition was void as against 
 public policy; it is, however, a vaUd provision as to the one of 
 full age. The testator having a right to say to whom his 
 property shall be bequeathed and devised, has also the right to 
 
WILLS AND ADMINISTRATION 459 
 
 attach a condition to any gift that the recipient thereof shall 
 not contest the probate of the will. Bryant v. Thompson, 59 
 Hun, 549, appeal dismissed in 128 N. Y. 426; Matter of Vande- 
 vort, 62 Hun, 612; Matter of Barandon, 41 Misc. 380. In 
 re Kathan's Will, 141 N. Y. Suppl. 705, it was said: "A testator 
 may limit a devise or bequest upon any condition that is lawful. 
 While a testator may limit a devise upon any condition that is 
 lawful, a condition that a devisee shall dispute no part of the will 
 is not lawful, where used to sustain illegal devises or bequests, 
 and so cannot be enforced." 
 
 Q. A dies leaving a will devising and bequeathing all his 
 property to a cousin B. He expressly states in his will "that 
 it is my desire and wish that my son C, on account of his bad 
 treatment of me, shall not get any of my property." B dies 
 before A. Both C and the heirs of B claim the property. To 
 whom should it go? 
 
 A. C gets it all, the devise and bequest to B having lapsed, 
 and no disposition having been made as to who should get the 
 property, in case B did not survive the testator, and although 
 A expressly wished that his son should not get any of his prop- 
 erty, C takes all. "In case a testator fails to make a legal devise 
 of his realty, or having legally devised it the devise fails for any 
 cause, the heir will inherit, notwithstanding that there is an 
 express provision in the will that he should not take any part 
 of the estate. There must be a legal devise to cut off the right 
 of the heir to inherit ; mere words of disinheritance are insufficient 
 to effect that purpose." Gallagher v. Crooks, 132 N. Y. 338. 
 See also Herzog v. T. G. & T. Co., 177 N. Y. 98; Pomroy v. 
 Hincks, 180 N. Y. 75. 
 
 Q. A by his will devised certain real estate to his wife for 
 her life, and "from and immediately after her death," to be 
 divided equally among his children. At his death A left sur- 
 viving D, his widow, and B and C, two daughters, who were 
 his only heirs at law. What estate did B and C take imder their 
 father's will in the real estate so devised by him? Did the 
 
460 WILLS AND ADMINISTRATION 
 
 estate of the children depend upon their surviving their 
 mother? 
 
 A, The widow takes a Ufe estate, and the children a vested 
 remainder. Their title does not depend on their surviving their 
 mother. The words "from and immediately after her death," 
 do not operate to postpone the vesting of the remainder in the 
 children until the death of the mother (the life tenant) but 
 simply denote the period when they would become entitled to 
 the estate in possession. Taggart v. Murray, 53 N. Y. 233; 
 Ackerman v. Gorton, 67 N. Y. 63. "The words 'from and 
 after' used in a testamentary gift of a remainder, following a 
 life estate, do not afford sufficient ground in themselves for ad- 
 judging that the remainder is contingent and not vested, and 
 unless their meaning is enlarged by the context, they are to be 
 regarded as defining the time of enjoyment simply and not of 
 the vesting of the title. The presumption is that a testator 
 intends that his dispositions shall take effect in enjoyment or 
 interest at the date of his death, and upon the happening of the 
 event, unless the language of the will by fair construction 
 makes his gifts contingent, they will be regarded as vested. 
 Words of survivorship or gifts over on the death of the primary 
 beneficiary are to be construed imless a contrary intention 
 appears, as relating to the death of the testator." Nelson v. 
 Russell, 135 N. Y. 137. The law favors the vesting of estates 
 and favors such a construction of a will as will avoid the dis- 
 inheritance of remainder-men who may happen to die before the 
 determination of the precedent estate. Stokes v. Weston, 142 
 N. Y. 433; Matter of Brown, 154 N. Y. 313; Connely v. O'Brien, 
 166 N. Y. 408. 
 
 Q. A dies leaving a will, but naming no executor therein. 
 Is the will valid? How would it be carried into effect, if valid? 
 
 A. The will is valid, and will be carried into effect by the 
 appointment of an administrator with the will annexed, ac- 
 cording to sec. 2643 of the Code of Civ. Pro. 
 
 Q. A makes a will appointing an executor therein. A dies, 
 and the executor refuses to act. What should be done? 
 
WILLS AND ADMINISTRATION 461 
 
 A. Application should be made for the appointment of an 
 administrator with the will annexed. Section 2643 of the Code 
 of Civ. Pro. 
 
 Q. The executor of a will in the state of New Jersey dis- 
 covers personal property in this state belonging to the testator. 
 He comes to you for advice. What would you advise him? 
 
 A. He should apply for ancillary letters testamentary, ac- 
 cording to sees. 2695 to 2702 of the Code of Civ. Pro., inclusive. 
 
 Q. Testator appoints B as his executor, "granting to said 
 executor and his successor full power to sell real estate." B 
 refuses to qualify, and an administrator with the will annexed 
 is appointed. Can he sell the real estate? 
 
 A. Yes. He has the same power as the executor would have 
 had, and all sales made by him are equally valid as if made by 
 the executor named in the will. Section 2642 of the Code of 
 Civ. Pro. 
 
 Q. A dies intestate leaving mortgaged realty. B is the only 
 heir at law. B demands that the administrator pay off the 
 mortgage. What are his rights? State the rule. 
 
 A. The administrator cannot be compelled to pay off the 
 mortgage, according to sec. 250 of the Real Property Law 
 (Consohdated Laws, chap. 50), which is as follows: "Where 
 real property subject to a mortgage executed by any ancestor 
 or testator descends to an heir, or passes to a devisee, such heir 
 or devisee must satisfy and discharge the mortgage out of his 
 own property, without resorting to the executor or adminis- 
 trator of his ancestor or testator, unless there be an express 
 direction in the will of such testator, that such mortgage be 
 otherwise paid." 
 
 Q. A, by his last will, directed his executor to continue his 
 business for two years after his death. At that time his general 
 estate was valued at $50,000, of which $10,000 was invested in 
 
462 WILLS AND ADMINISTRATION 
 
 the business. The executor continued the business according to 
 the direction in the will. At the end of the two-year period, it 
 was found that the assets of the concern had increased from 
 $10,000 to $15,000, and its debts to $30,000. The business 
 creditors to whom the increased debts are due claim recourse 
 against the general assets of the estate for the debts contracted 
 by the executor after A's death. What are the rights of the 
 parties? 
 
 A. The claim of the business creditors must be confined to 
 the fund invested in the business, and cannot be allowed 
 against the general assets of the estate, as even though the ex- 
 ecutor is expressly directed and authorized to continue the 
 business, he cannot bind the general assets unless specially 
 authorized to do so. "A power, simpliciter, to carry on the 
 testator's trade, without anything more, will be construed as 
 an authority simply to carry on the trade or business with the 
 fund already invested in it at the time of the testator's death, 
 and to subject that fund only to the hazards of the trade 
 and not the general assets of the estate. The property already 
 embarked in the business is the trade fund, unless it appears 
 from the will that the executor was authorized to use the 
 general assets of the estate." Willis v. Sharp, 113 N. Y. 590. 
 See also Columbus Watch Co. v. Hodenpyl, 135 N. Y. 430. 
 
 Q. A died leaving a will bequeathing to his nephew X a 
 legacy of $5,000 and directed his executor to pay said legacy of 
 $5,000 within one year after his (A's) death. A also devised 
 and bequeathed the remainder of his estate to Y and appointed 
 him the sole executor of his estate. Y duly qualified as executor, 
 accepted and took possession of the property so devised and 
 bequeathed. A's estate consisted mostly of real estate, there 
 being just enough personalty to pay his funeral expenses and 
 debts. X demanded that Y pay him his legacy, which Y refused 
 to do claiming that it was payable out of the personal estate, 
 and as there was not sufficient personal property out of which 
 to pay it, he was not liable. What are X's rights and reme- 
 dies? 
 
WILLS AND ADMINISTRATION 463 
 
 A. The payment of such a legacy can be enforced by a suit 
 in equity against the real estate, or by an action against the 
 devisee upon his promise to pay impHed by his acceptance of 
 the devise. The rule is well settled that when a legacy is di- 
 rected to be paid by the person to whom real estate is devised, 
 such real estate becomes charged with the payment of the 
 legacy. And this rule applies as well when the legacy is directed 
 to be paid by the executor who is also the devisee of the real 
 estate. The devisee by accepting the devise, becomes personally 
 liable to pay the amoimt of the legacy. If he desires to escape 
 responsibility he must refuse to accept the devise. Glen v. 
 Fisher, 6 Johns. Ch. 33; Reynolds v. Reynolds, 16 N. Y. 257; 
 Gridley v. Gridley, 24 N. Y. 130; Brown v. Knapp, 79 N. Y. 
 143; Converse v. Converse, 73 Misc. 622; Dinau v. Conys, 143 
 N. Y. 457. 
 
 Q. The will of A gives the legal title to all his property, both 
 real and personal, to different devisees and legatees, but there 
 is an obscurity as to the identity of some of the parties intended 
 to take the real estate. B, who claims to be one of the devisees, 
 commences an action for the judicial construction of the will, 
 making the other devisees and legatees defendants. The ex- 
 ecutor and the other beneficiaries demur on the ground that 
 the facts do not constitute a sufficient cause of action. Is the 
 demurrer good? 
 
 A. The demurrer is good. The proper action to be brought, 
 is an action by the. alleged devisee to recover the devise which 
 he claims. This action should be brought as a legatee or devisee 
 against the executor, according to sec. 1819 of the Code of Civ. 
 Pro. 
 
 Q. It is provided in the will of A that his personal property 
 should be distributed amongst his next of kin, according to the 
 statute providing therefor. He leaves a widow, two nephews 
 and a niece. The widow claims one-third as her share. What 
 are her rights? How should the property be divided? 
 
 A. The widow gets nothing; the property must be divided 
 
464 WILLS AND ADMINISTRATION 
 
 equally among the nephews and the niece. "A provision in 
 a will du-ecting generally that the personal property of the tes- 
 tator shall be distributed as provided by statute in case of in- 
 testacy, where the testator leaves a widow, will entitle her to 
 be included in the distribution, although not specially men- 
 tioned, but when the distribution is by the terms of the will 
 confined to the next of kin, the reference to the statute simply 
 gives the rule of distribution among the next of kin, as if there 
 is no widow, and she is not included." Luce v. Dunham, 69 
 N. Y. 36. See also Murdock v. Ward, 67 N. Y. 387; Keteltas 
 V. Keteltas, 72 N. Y. 312; Tilman v. Davis, 95 N. Y. 17; Matter 
 of Devoe, 171 N. Y. 281. 
 
 Q. A by will devises to his executors in trust, a certain piece 
 of real estate with instructions to sell it imhaediately after his 
 death, and divide the proceeds between his sons, B and C. A 
 few days after his death, and before the sale of the real estate, 
 B dies leaving a wife and son surviving. How would the prop- 
 erty descend? Give the rule governing such a state of facts. 
 
 A. This is a case of equitable conversion, and the property 
 must be divided as personal property, C receiving one-half, 
 and the other half being divided between B's wife and son, the 
 wife receiving one-third and the son two-thirds, according to 
 sec. 98 of Decedent Estate Law, which in part is as follows: 
 "If the deceased died intestate, the surplus of his personal 
 property after payment of debts; and if he left a will, such 
 surplus, after payment of debts and legacies, if not bequeathed, 
 must be distributed to his widow, children, or next of kin, in 
 the manner following: 1. One-third part to the widow, and the 
 residue in equal portions among the children, and such persons 
 as legally represent the children if any of them have died be- 
 fore the deceased." 
 
 Q. A, the wife of B, obtains a divorce from him for his mis- 
 conduct, B subsequently dies leaving $5,000 in personal prop- 
 erty. A claims a distributive share of the property. What 
 are her rights? 
 
"WILLS AND ADMINISTRATION 465 
 
 A. She is not entitled to any share of his personal property, 
 as she is no longer his wife. "A divorced wife, whether the 
 divorce was granted because of misconduct of herself or her 
 husband, is not entitled, if he die intestate, to administration or 
 to a distributive share of his personal estate." Matter of En- 
 sign, 103 N. Y. 234. See also Van Cleaf v. Burns, 118 N. Y. 
 549; Livingston v. Livmgston, 173 N. Y. 381; Matter of Mer- 
 ritt, 155 App. Div. 231. 
 
 Q. A dies, devising his entire property to his only son X, 
 and appointing his father, X's grandfather, the general guard- 
 ian. A's widow consults you as to her rights. Advise her. 
 
 A. She has the right of dower in A's realty; he could not 
 cut this off by will. He had full power, however, to bequeath 
 his personalty, and therefore she has no rights in the personal 
 property. 
 
 Q. A died leaving him surviving five children of a son, and 
 one son of a deceased daughter, his only heirs at law. How is 
 A's property distributed among the grandchildren? 
 
 A. Both real and personal property would be divided equally 
 among them. Section 82 of Decedent Estate Law, states the 
 rule as to the real property, and is as follows: "If the intestate 
 leave descendants in the direct line of lineal descent, all of equal 
 degree of consanguinity to him, the inheritance shall descend 
 to them in equal parts however remote from him the common 
 degree of consanguinity may be." Section 98, par. 10, of 
 Decedent Estate Law, governs the distribution of the personal 
 property, and is as follows: "Where the descendants, or next 
 of kin of the deceased, entitled to share in his estate, are all in 
 equal degree to the deceased, their shares shall be equal." 
 
 Q. A dies intestate, leaving him surviving a son and two 
 grandchildren, the children of a deceased daughter. What 
 respective shares have each of them in the real and personal 
 property of A? 
 30 
 
466 WILLS AND ADMINISTRATION 
 
 A. The son is entitled to one-half, and grandchildren re- 
 ceive the share of their mother, which is one-half, to be divided 
 between them. Section 83 of Decedent Estate Law, governs 
 the distribution of the real property, and is as follows: "If 
 any of the descendants of such intestate be Hving, and any 
 be dead, the inheritance shall descend to the living, and 
 the descendants of the dead, so that each living descend- 
 ant shall inherit such share as would have descended to 
 him had all the descendants in the same degree of consan- 
 guinity who shall have died leaving issue been living; and 
 so that issue of the descendants who shall have died shall 
 respectively take the shares which their ancestors would have 
 received." Section 98, par. 11, of Decedent Estate Law, as 
 to the personalty, is as follows: "When such descendants or 
 next of kin are of unequal degrees of kindred, the surplus shall 
 be apportioned among those entitled thereto, according to their 
 respective stocks; so that those who take in their own right 
 shall receive equal shares, and those who take by representation 
 shall receive the share to which the parent whom they repre- 
 sent, if Hving, would have been entitled." 
 
 Q. A makes a will leaving one-third of his realty to his wife, 
 and the rest, residue and remainder to be divided equally be- 
 tween the sons, C, who is unmarried, and B who is married. 
 A dies, and one hour after the probate of his will, his son B 
 dies. B leaves no children. The property consists of $30,000 
 in money, and 400 acres of land. How should this be divided? 
 
 A. The personal property not being mentioned in the will, A 
 must be deemed to have died intestate as to that, and therefore 
 the personal property must be distributed according to the 
 Statute of Distribution. A's widow would get one-third, C 
 would also get one-third, B's one-third would be divided be- 
 tween his widow, his mother, and C, the widow receiving one-half, 
 and the mother and C dividing the other half equally between 
 them. Section 98, par. 2, of Decedent Estate Law, provides 
 as follows : " If there be no children, nor any legal representatives 
 of them, then one-half of the whole surplus shall be allotted to 
 
WILLS AND ADMINISTRATION 467 
 
 the widow, and the other half distributed to the next of kin 
 of the deceased, entitled under the provisions of this section." 
 Paragraph 6 is as follows: "If the deceased leave no children 
 and no representatives of them, and no father, and leave a widow 
 and a mother, the half not distributed to the widow shall be dis- 
 tributed in equal shares to his mother and brothers and sisters, 
 or the representatives of such brothers and sisters ; and if there 
 be no widow, the whole surplus shall be distributed in like 
 manner to the mother, and to the brothers and sisters, or the 
 representatives of such brothers and sisters." The real property 
 would be distributed in the following manner: Assuming the 
 provision to be in lieu of dower, the widow will get one-third, 
 C will also get one-third, and B's one-third will be divided as 
 follows: B's widow will get dower, a life estate in one-third of 
 B's share, and the remainder of B's share will be divided as 
 follows: To the mother for life, remainder in fee to C. This 
 last is according to sec. 85 of Decedent Estate Law, which is as 
 follows: "If the intestate die without descendants and leave no 
 father, or leave a father not entitled to take the inheritance 
 under the last section, and leave a mother, and a brother or 
 sister, or the descendant of a brother or sister, the inheritance 
 shall descend to the mother for life, and the reversion to such 
 brothers and sisters of the intestate as may be living, and the 
 descendants of such as may be dead, according to the same law 
 of inheritance hereinafter provided. If the intestate in such 
 case leave no brother or sister or descendant thereof, the in- 
 heritance shall descend to the mother in fee." 
 
 Q. A dies intestate, leaving $4,000 in personal property. 
 He leaves him surviving a widow and two brothers, but no 
 children. How should the property be distributed? 
 
 A. The widow is entitled to the whole $4,000, according to 
 sec. 98, par. 3, of Decedent Estate Law, which is as follows: 
 "If the deceased leaves a widow, and no descendant, parent, 
 brother or sister, nephew or niece, the widow shall be entitled 
 to the whole surplus; but if there be a brother or sister, nephew 
 or niece, and no descendant or parent, the widow shall be en- 
 
468 WILLS AND ADMINISTRATION 
 
 titled to one-half of the surplus as above provided, and to 
 the whole of the residue if it does not exceed two thousand 
 dollars; if the residue exceeds that sum, she shall receive in addi- 
 tion to the one-half, two thousand dollars; and the remainder 
 shall be distributed to the brothers and sisters and their rep- 
 resentatives." Matter of Hardin, 97 App. Div. 493. 
 
 Q. A, an unmarried female, dies leaving certain real estate, 
 which she acquired through her own industry. She made no 
 will. She left her surviving a father and two brothers. How 
 should the property be divided? 
 
 A. The father alone takes the property in fee. As it did not 
 come to the intestate on the part of the mother, but was ac- 
 quired by her own industry, the brothers have no right thereto. 
 This case is governed by sec. 84 of Decedent Estate Law, 
 which is as follows : " If the intestate die without lawful descend- 
 ants, and leave a father, the inheritance shall go to such father, 
 unless the inheritance came to the intestate on the part of 
 his mother, and she be living; if she be dead, the inheritance 
 descending on her part shall go to the father for life, and the 
 reversion to the brothers and sisters of the intestate and their 
 descendants, according to the law of inheritance by collateral 
 relatives hereinafter provided; if there be no such brothers or 
 sisters or their descendants living, such inheritance shall de- 
 scend to the father in fee." 
 
 Q. A dies intestate, leaving him surviving a father and a 
 widow but no children. His personal property amounts to 
 $10,000. How should the same be distributed? 
 
 A. The widow and father each got one-half according to 
 sec. 98, par. 7, of Decedent Estate Law, which is as follows: 
 "If the deceased leave a father and no child or descendant, 
 the father shall take one-half if there be a widow, and the 
 whole, if there be no widow." 
 
 Q. A, the wife of B, dies intestate, leaving her husband and 
 
WILLS AND ADMINISTRATION 469 
 
 a child surviving. Her personal property amounts to $50,000. 
 What are the rights of the husband and the child? 
 
 A. The husband is entitled to one-third, and the child to 
 two-thirds of the property, according to sec. 100 of Decedent 
 Estate Law, which is as follows: "The provisions of this article 
 respecting the distribution of property of deceased persons 
 apply to the personal property of married women dying, leav- 
 ing descendants them surviving. The husband of any such 
 deceased married woman shall be entitled to the same dis- 
 tributive share in the personal property of his wife to which 
 a widow is entitled in the personal property of her husband by 
 the provisions of this article and no more." 
 
 Q. A, a married woman, dies intestate, leaving $50,000 in 
 personal property. She leaves no descendants, but leaves a 
 brother, a sister and a husband. How should the property 
 be distributed? 
 
 A. The husband takes all. As there are no descendants, and 
 no provision being made by statute for a case like this, the in- 
 heritance must descend according to the rule of the common 
 law. ' ' Where a married woman possessed of a separate personal 
 estate, dies without having made any disposition of it in her 
 hfetime, or by way of testamentary appointment, the title 
 thereto vests in her surviving husband, and cannot be affected 
 by the granting of administration upon her estate to anyone 
 else." Robbins v. McClure, 100 N. Y. 328. See also Matter 
 of Bolton, 159' N. Y. 133; Matter of Nones, 27 Misc. 165; 
 Matter of McLeod, 32 Misc. 229; Matter of Thomas, 33 Misc. 
 729. 
 
 Q. A and B who each own a dwelling house in the City of 
 New York, exchange their property by mutual deeds, in which 
 their wives do not join. A died intestate, and his wife claims 
 dower in both pieces of property. What are her rights and 
 remedies? 
 
470 WILLS AND ADMINISTBATION 
 
 A. A's widow is put to her election as to which paxcel she 
 will take dower in, and must bring an action in one year from 
 A's death to recover dower from the parcel given in exchange, 
 otherwise she will be deemed to have chosen to take dower of the 
 parcel received in exchange. Wilcox v. Randall, 7 Barb. 633; 
 Runyan v. Steuart, 12 Barb. 537. Section 191 of the Real 
 Property Law (ConsoUdated Laws, chap. 50) provides for this 
 as follows: "If a husband seized of an estate of inheritance in 
 lands, exchanges them for other lands, his widow shall not have 
 dower of both, but she must make her election, to be endowed 
 of the lands given, or of those taken, in exchange; and if her 
 election be not evinced by the commencement of an action 
 to recover her dower of the lands given in exchange, within 
 one year after the death of her husband, she is deemed to 
 have elected to take her dower of the lands received in ex- 
 change." 
 
 Q. A dies possessed of $50,000 in real property. He left a 
 will by which he directed his executor to give to his wife $5,000, 
 and also certain other devises to B and C. The widow claims 
 dower and also the $5,000. B and C claim that the wife is only 
 entitled to dower or $5,000 and that she should make an elec- 
 tion which she should take. What do you say? 
 
 A. The widow is entitled to dower and also the bequest of 
 $5,000, as there is nothing inconsistent in the provision to put 
 the widow to an election which one to take. "There can be no 
 controversy as to the general principle governing the question 
 of election between dower and a provision in the will. Dower is 
 favored. It is never excluded by a provision for a wife, except 
 by express words or necessary implication. Where there are no 
 express words there must be upon the face of the will a demon- 
 stration of the intention of the testator that the widow shall 
 not take both dower and the provision. The will furnishes this 
 demonstration only when it clearly appears without ambiguity 
 or doubt, that to permit the widow to claim both dower and the 
 provision would interfere with the other dispositions and dis- 
 turb the scheme of the testator as manifested by his will. The 
 
WILLS AND ADMINISTEATION 471 
 
 intention of the testator to put the widow to an election cannot 
 be implied from the extent of the provision, or because she is a 
 devisee under the will for life or in fee, or because it may seem 
 to the court that to permit the widow to claim both the provi- 
 sion and dower would be unjust as a family arrangement, or 
 because it may be inferred or believed, in view of all the circum- 
 stances, that if the attention of the testator had been drawn to 
 the subject he would have expressly excluded dower. We 
 repeat, the only sufficient and adequate demonstration which, 
 in the absence of express words, will put the widow to her 
 election, is a clear incompatibility, arising on the face of the 
 will, between a claim of dower and a claim to the benefit given 
 by the will." Andrews, J., in Konvalinka v. Schlegel, 104 
 N. Y. 125, followed in Asche v. Asche, 113 N. Y. 232; Closs v. 
 Eldert, 30 App. Div. 338; Matter of Gorden, 172 N. Y. 25. 
 
 Q. A is an adopted child of B. B dies leaving a widow and A 
 surviving. His property consists of $20,000 in personal prop- 
 erty. How should the same be distributed? 
 
 A. The widow gets one-third and A, the adopted child, gets 
 two-thirds. The adopted child is entitled to share in the estate 
 of the foster parent as though he were the natural child of 
 such foster parent. This is provided for in sec. 114 of Domestic 
 Relations Law (Consolidated Laws, chap. 14). U. S. Trust 
 Co. V. Hoyt, 150 App. Div. 621; Carpenter v. Buffalo Co., 155 
 App. Div. 655. 
 
 (Note.) "Heirs of an adopted child have the same legal relationship to 
 foster parents, as the heirs of a child by nature." Matter of Cook, 187 N. Y. 
 253. 
 
 Q. A, an infant, whose father and mother were living, was 
 adopted by B. The natural father of A died intestate leaving 
 $20,000 in cash. Can A share in the distribution of this money? 
 
 A. Yes. A did not lose his right of inheritance from his 
 natural parents, even though he was adopted by another. 
 Section 114 of the Domestic Relations Law so provides. 
 
472 WILLS AND ADMINISTRATION 
 
 Theobald v. Smith, 103 App, Div. 200; Gilliam v. Guarantee 
 Trust Co., 186 N. Y. 127; Matter of MacRae, 189 N. Y. 
 142. 
 
 Q. A had one child, B, a son, and thereafter duly adopted C, a 
 girl of the age of fifteen years. A made his will giving all his 
 property to his heirs to be divided equally. A died and on the 
 probate of his will, C, the adopted child, claims one-half of the 
 estate. What are her rights? 
 
 A. C, the adopted child, is entitled to share in the estate 
 equally with B, the natural son. (Section 114 of Domestic 
 Relations Law.) A child adopted under the statute is given all 
 the rights of any other child or heirs. Matter of Gregory, 15 
 Misc. 407; Dodin v. Dodin, 16 App. Div. 42. 
 
 (Note.) "A child adopted under the statute by a husband and wife, after 
 policies of insurance have been issued upon the life of the husband payable 
 to the wife, and in case of her death to her children, is entitled upon the wife's 
 failure to survive, to share in the proceeds of the poUcies with the natural 
 children." Von Beck v. Thomsen, 44 App. Div. 373, aff'd in 167 N. Y. 601. 
 "A limitation in a deed or will conditioned upon the survivorship of a child 
 or children is not deemed to include an adopted child where the grantor or 
 testator is a stranger to the adoption. And upon the death of the foster 
 parent without heirs, the adopted child is not deemed to be the child of such 
 foster parent, so as to defeat the rights of the remainder-man." Matter of 
 Leack,.197 N. Y. 193. 
 
 Q. A is the mother of B, an illegitimate son. B dies leaving 
 no descendants him surviving. His property amounts to 
 $10,000. Who is entitled to it? Suppose the mother died 
 leaving no lawful issue, but B, who would be entitled to her 
 property? 
 
 A. The mother of an illegitimate child, in the absence of the 
 illegitimate child dying without lawful issue, is entitled to said 
 illegitimate child's property. The illegitimate child is entitled 
 to his mother's property when she dies without lawful issue. 
 This is provided for in sec. 89 of Decedent Estate Law, as 
 
WILLS AND ADMINISTRATION 473 
 
 follows: "If an intestate who shall have been illegitimate die 
 without lawful issue, or illegitimate issue entitled to take, under 
 this section, the inheritance shall descend to his mother; if she 
 be dead, to his relatives on her part, as if he had been legitimate. 
 If a woman die without lawful issue, leaving an illegitimate 
 child, the inheritance shall descend to him as if he were legit- 
 imate. In any other case illegitimate children or relatives shall 
 not inherit." Kiah v. Grenier, 56 N. Y. 220. 
 
 Q. A dies leaving a will giving to each of his children a 
 legacy of $5,000. There are three children and two children of a 
 deceased son, B. The deceased son died before the making of 
 the will. The children of B claim the legacy of $5,000. Are 
 they entitled to it? 
 
 A, No. Here the bequest was to the children of the testator, 
 and does not come imder the rule of lapsed legacies. The 
 intention of the testator was to give to his children then living, 
 those who were living at the time of his making the will. As B 
 died before the making of the will, it was clearly the intention of 
 the testator not to give to B's descendants any share of his 
 estate. Pimel v. Betjemann, 183 N. Y. 194; Matter of Turner, 
 208 N. Y. 261. 
 
 Q. A made his will devising all his real estate to the children 
 of his daughters, B and C, to be divided equally between them, 
 as they respectively arrive at the age of twenty-one years. 
 B and C each have three children living at the death of A, and 
 after his death, C gives birth to two other children. What are 
 the rights of the grandchildren of A? 
 
 A. The grandchildren living at the death of A take the entire 
 estate to the exclusion of those born after his death. In Double- 
 day V. Newton, 27 Barb. 432, a case exactly in point, it was 
 held: "That the will vested in the devisees a present estate in 
 fee in the premises. That there was neither in fact nor in law 
 any suspension of division. That if there was a suspension of 
 division, such suspension did not prevent alienation nor avoid 
 
474 
 
 WILLS AND ADMINISTBATION 
 
 the will. That the estate, under the will, vested immediately 
 on the death of the testator, and that only those grandchildren 
 in being at his death took an interest in the estate." So also 
 Moultrie v. Hunt, 23 N. Y. 394; St. John v. Andrews Inst., 117 
 App. Div. 712. 
 
PLEADING, PRACTICE AND EVIDENCE 
 
 CHAPTER XX 
 
 Code Pleading and Practice 
 
 Q. Draw a summons in a divorce case. 
 
 A. Supreme Court, 
 New York County. 
 
 John Brown, Plaintiff, 
 
 against 
 Mary Brown, Defendant. 
 
 Summons. 
 Action for a Divorce. 
 
 To the above named defendant: 
 
 You are hereby summoned to answer the complaint in this 
 action, and to serve a copy of your answer on the plaintiff's 
 attorney within twenty days after the service of this summons, 
 exclusive of the day of service; and in case of your failure to 
 appear or answer, judgment will be taken against you by de- 
 fault, for the relief demanded in the complaint. 
 Dated, New York, May 1, 1915. 
 
 Joseph Story, Plaintiff's Attorney, 
 dffice and post-office address. No. 50 Wall St., 
 
 Borough of Manhattan, New York City. 
 
 The special requirement in divorce cases, as to the form of 
 the summons, is found in sec. 1774 of the Code of Civ. Pro. 
 It is there provided that final judgment shall not be rendered 
 in favor of the plaintiff upon the defendant's default in appear- 
 ing or pleading, unless the copy of the summons served con- 
 tains legibly written or printed upon the face thereof, "Action 
 to Annul a Marriage;" "Action for a Divorce;" "Action for 
 a Separation," as the case may be. 
 
 475 
 
476 CODE PLEADING AND PRACTICE 
 
 Q. Your client desires you to bring an action in the Supreme 
 court against B to collect $1,000 for money loaned; no defense 
 being anticipated, you wish to dispense with a complaint. 
 Draw the necessary papers to be served upon B to enable you 
 to take judgment by default, in the absence of such complaint, 
 without application to the court. 
 
 A. The proper paper to be drawn in this case would be a 
 simamons with notice. It is provided in sees. 419 and 420 of 
 the Code of Civ. Pro. that in an action to recover a liquidated 
 amount, judgment may be entered by the clerk without ap- 
 plication to the court, where a copy of the complaint is served 
 with the summons, or a notice is served with the summons 
 stating that judgment will be taken against the defendant 
 by default for a certain specified sum if he fails to appear or 
 answer. The form of the summons is the same as in the 
 preceding answer, omitting of course the words "Action for a 
 Divorce." The following is the form of notice generally \ised: 
 
 Notice. Take notice, that upon your default to appear or 
 answer the above summons, judgment will be taken against 
 you for the sum of $1,000, with interest from January 1, 1915, 
 and with costs of this action. 
 
 Joseph Story, 
 
 Plaintiff's Attorney. 
 
 Q. Draw an affidavit of the service of a summons. 
 
 A. Supreme Court, 
 New York County. 
 
 John Brown, Plaintiff, 
 
 against 
 Thomas Jones, Defendant. 
 
 City and County of New York, ss. 
 
 Peter Smith, being duly sworn, deposes and saya that he is 
 nineteen years of age; that on the 10th day of May, 1915, at 
 No. 320 Broadway, in the City of New York, he served the 
 
CODE PLEADING AND PRACTICE 477 
 
 annexed summons on Thomas Jones, the defendant herein, by 
 delivering a copy to him personally, and leaving the same 
 with him. Deponent further says that he knew the person so 
 served, to be the same person mentioned and described in said 
 summons as the defendant in this action. 
 
 Petbe Smith. 
 Sworn to before me this 
 10th day of May, 1915. 
 
 Robert Green, 
 Notary Public, 
 New York County. 
 
 The summons may be served by any person of the age of 
 eighteen years or upwards other than a party to the action. 
 See sec. 425 of the Code of Civ. Pro. 
 
 Q. While A, a resident of the state of Ohio, was in attendance 
 at court as defendant in an action then being tried in the City 
 of Buffalo, plaintiff caused a summons in another action to be 
 served upon him. A, not wanting any more Utigation outside 
 of his own state, consults you. What would you advise, and 
 what steps would you take, if any, to afford him relief? 
 
 A. The service is bad, and wiU be set aside upon motion. A 
 nonresident party is exempt from service of process while 
 actually attending court here as a party. In making the mo- 
 tion to set the service aside, care should be taken to appear 
 specially for the purpose of the motion, Matthews v. Tufts, 
 87 N. Y. 568; Parker v. Marko, 136 N. Y. 585. 
 
 Q. A is a resident of a foreign country who attended as a 
 witness in obedience to a subpoena issued from the supreme 
 court of New York County, in an action there on trial. Before 
 he was sworn as a witness, a summons was served upon him in a 
 suit wherein B, a resident of New York County, was plaintiff. 
 A immediately caused a notice of appearance in the action to 
 be served by C, a New York attorney. Was the service regu- 
 lar? What was the effect of the notice of appearance? 
 
478 CODE PLEADING AND PRACTICE 
 
 A. The service was irregular, but the notice of appearance 
 cured the irregularity, and gave the court jurisdiction. The 
 defendant by appearing generally in the action is deemed to 
 have w£lived any defect in the service of the summons. The 
 defendant's attorney should have appeared specially for the 
 purpose of making a motion to set the service aside. "A resi- 
 dent of a foreign state, while attending the courts of this state 
 as a witness, cannot be served with a process for the com- 
 mencement of a civil action against him." Person v. Grier, 
 66 N. Y. 124. "While a person attending court as a witness 
 is privileged from service, such privilege will be waived by a 
 general appearance in the action," Chadwick v. Chase, 5 
 Weekly Dig. 589. See also Mack v. Amer. Ex. Co., 20 Misc. 
 215; sec. 424 of Code of Civ. Pro. 
 
 (Note.) "A resident witness is, while attending examination, exempt from 
 arrest, but not from the service of process. A different rule applies to non- 
 resident witnesses." Frisbie v. Young, 11 Hun, 474. "Where a nonresident 
 comes into this state for the sole purpose of being sworn as a witness, the 
 privilege of exemption from the service of civil process is extended to him, 
 not merely for his own convenience, but also to enable the courts to properly 
 transact their business. If, however, he comes for the double purpose of 
 attending court and attending to business having no connection with the 
 trial, the privilege does not attach to him. The presumption is that the 
 service is regular." Finucane v. Warner, 194 N. Y. 160. 
 
 Q. In an action where A was defendant, and B plaintiff, the 
 original summons was entitled in the City Court, but the 
 summons delivered to A was entitled in the Supreme Court. 
 Which court has jurisdiction? 
 
 A. The supreme court has jurisdiction. A party may always 
 treat a paper served upon him as a true copy of the original, 
 and act accordingly; therefore as the copy here was entitled 
 in the Supreme Court, that court has jurisdiction. Bailey v. 
 Sargent Co., 23 Civ. Pro. Rep. 319. 
 
 Q. In a case where you get an order for the service of the 
 summons on a defendant by publication, and thereafter serve 
 him personally without the state, when does his time to answer 
 expire? 
 
CODE PLEADING AND PRACTICE 479 
 
 A. The defendant's time to answer expires sixty-two days 
 after personal service upon him outside the state. "Under the 
 provisions of the Code in reference to the service of a summons 
 by pubhcation, such service is not complete until the expiration 
 of at least six weeks from the time of the first pubhcation, or 
 when service is made out of the state, until the expiration of 
 that period after such service." Market Nat. Bank v. Pacific 
 Nat. Bank, 39 N. Y. 397. See also Waters v. Waters, 27 N. Y. 
 Suppl. 1004. For service by publication, see sees. 438 to 445 of 
 the Code, inclusive. 
 
 Q. A brings an action against B whom he knows to be a 
 resident of New Haven, Conn., and obtains an order for sub- 
 stituted service of the summons upon B. Is the service 
 good? 
 
 A. No. Substituted service of the summons can only be 
 made upon a defendant who is a resident of the state, according 
 to sec. 435 of the Code. Collins v. Campfield, 9 How. Pr. 519; 
 Lynch v. Eustis, 85 N. Y. Suppl. 1063. 
 
 Q. The time in which to commence an action is about to 
 expire, and you cannot personally serve the defendant until 
 two weeks, when your time will have expired. What proceeding 
 would you take in order to get the action under way? 
 
 A. Get an order for the service of the summons by publica- 
 tion, or dehver the summons to the sheriff to be served. The 
 provision as to publication is to be found in sec. 438, par. 6, of 
 the Code, which is as follows: "An order directing the service 
 of a summons upon the defendant, without the state, or by 
 publication, may be made in either of the following cases: 
 6. Where the defendant is a resident of the state or a domestic 
 corporation; and an attempt was made to commence the action 
 against the defendant, . . . and the limitation would have 
 expired, within sixty days next preceding the application, if 
 the time had not been extended by the attempt to commence 
 the action." Section 399 of the Code provides for the service 
 by the sheriff in such a case. 
 
480 CODE PLEADING AND PRACTICE 
 
 Q. A rents a house situated at No. 50 Grand Street, New 
 York City, for one year, at the monthly rental of $100, com- 
 mencing May 1, 1914. A fails to pay his rent for the months of 
 May, June and July, 1914. Draw a complaint in the supreme 
 court to recover the rent, omitting verification. 
 
 A. Supreme Court, 
 New York County. 
 
 B, Plaintiff, 
 
 against 
 A, Defendant. 
 
 B, plaintiff in the above entitled action, by Joseph Story, 
 his attorney, complains of the defendant and alleges: 
 
 1. That heretofore and on or about May 1, 1914, the plaintiff 
 leased to the defendant certain premises known as No. 50 
 Grand Street, in the City of New York for one year, beginning 
 with the said May 1, 1914, at a monthly rental of $100, payable 
 in advance, which sum defendant agreed to pay. 
 
 2. That said defendant has not paid said rental for the 
 months beginning May 1, June 1 and July 1, 1914, the same 
 amounting to the sum of $300. 
 
 3. That plaintiff has demanded said sum from the defendant, 
 but the defendant has not paid the same nor any part thereof. 
 
 4. That there is now due and owing to the plaintiff from the 
 defendant the said sum of $300, with interest on $100 from 
 May 1, 1914, and on $100 from June 1, 1914, and on $100 from 
 July 1, 1914. 
 
 Wherefore plaintiff demands judgment against the defendant 
 for the said sum of $300 with interest as aforesaid, together 
 with the costs of this action. 
 
 Joseph Story, 
 
 Plaintiff's Attorney, 
 50 Wall Street, 
 
 New York City. 
 
 Q. Draw a complaint which will hold good against the maker 
 and three indorsers of a promissory note. 
 
CODE PLEADING AND PRACTICE 481 
 
 A. Supreme Court, 
 New York County. 
 
 John Brown, Plaintiff, 
 against 
 Thomas Jones, David Roe, 
 Richard Smith and Wm. 
 Black, Defendants. 
 
 See sees. 454 and 534, Code of 
 Civ. Pro. 
 
 John Brown, the plaintiff in the above entitled action, by Jo- 
 seph Story, his attorney, complains of the defendants and alleges : 
 
 1. That heretofore and on or about May 1, 1915, at New 
 York City, the defendant, Thomas Jones, made, executed and 
 delivered his certain promissory note in writing, of which the 
 following is a copy: 
 
 $500.00 New York, May 1, 1915. 
 
 Thirty days after date, I promise to pay to the order of 
 David Roe, the sum of five hundred ($500.00) dollars, payable 
 at the Chemical National Bank, New York City, with interest. 
 
 Value received. Thomas Jones. 
 
 2. That the defendant, David Roe, indorsed the same and 
 delivered it so indorsed. 
 
 3. That thereafter the defendants, Richard Smith and 
 William Black, indorsed the same in blank, and delivered it so 
 indorsed, and thereafter and before its maturity it lawfully 
 came into the hands of the plaintiff for value. 
 
 4. That at maturity, said note was duly presented for pay- 
 ment, and payment thereof then and there demanded, but the 
 same was not paid, aU of which due notice was given to the 
 defendants. 
 
 5. That no part of said note has been paid. 
 
 Wherefore the plaintiff demands judgment against the 
 defendants for the sum of $500, with interest thereon from the 
 Ist day of May, 1915, together with the costs of this action. 
 
 Joseph Story, 
 
 Plaintiff's Attorney, 
 50 Wall Street, 
 (Verification.) New York City. 
 
 31 
 
482 CODE PLEADING AND PRACTICE 
 
 Q. Draw a complaint in a county court, asking judgment for 
 the highest amount there obtainable for personal services. 
 
 A. County Court, 
 Kings County. 
 
 Thomas Jones, Defendant, 
 
 against 
 John Brown, Plaintiff. 
 
 Section 340, Code of Civ. Pro. 
 
 John Brown, plaintiff in the above entitled action, by Joseph 
 Story, his attorney, complains of the defendant and alleges: 
 
 1. That the above named defendant is a resident of the 
 county of Kings. 
 
 2. That between the 2d day of January, 1915, and the 10th 
 day of December, 1915, at 50 Montague Street, in the borough 
 of Brooklyn, New York City, plaintiff rendered certain services 
 to the defendant at his request, as his private secretary. 
 
 3. That the same were reasonably worth $2,000. 
 
 4. That no part of the same has been paid. 
 
 Wherefore the plaintiff demands judgment against the de- 
 fendant for the sum of $2,000, with interest from the 10th day 
 of December, 1915, together with the costs of this action. 
 
 Joseph Story, 
 
 Plaintiff's Attorney, 
 50 Wall Street, 
 
 New York City. 
 (Verification.) 
 
 The highest amount obtainable in a county court is $2,000, 
 according to sec. 340 of the Code of Civ. Pro. 
 
 (Note.) If the complaint asks for judgment for amounts, totalling more 
 than $2,000, it is demurrable. Owen v. Brown, 78 Misc. 273. 
 
 Q. Give the different grounds of demurrer to a complaint. 
 
 A. Section 488 of the Code provides that: "The defendant 
 may demur to the complaint, where one or more of the following 
 objections thereto appear upon the face thereof: 1. That the 
 
CODE PLEADING AND PRACTICE 483 
 
 court has not jurisdiction of the person of the defendant. 2. 
 That the court has not jurisdiction of the subject of the action. 
 
 3. That the plaintiff has not legal capacity to sue. 4. That 
 there is another action pending between the same parties, for 
 the same cause. 5. That there is a misjoinder of parties plain- 
 tiff. 6. That there is a defect of parties, plaintiff or defendant. 
 7. That causes of action have been improperly united. 8. 
 That the complaint does not state facts sufficient to constitute 
 a cause of action." 
 
 Q. What are the grounds on which you can demur to an 
 answer, and also the grounds of demurrer to a counterclaim? 
 
 A. The one ground of demurrer to an answer is given in sec. 
 494 of the Code as follows: "The plaintiff may demur to a 
 counterclaim or a defense consisting of new matter, contained 
 in the answer, on the ground that it is insufficient in law, upon 
 the face thereof." The grounds of demurrer to a counterclaim 
 are contained in sec. 495 of the Code. This section is as follows : 
 "The plaintiff may also demur to a counterclaim, upon which 
 the defendant demands an affirmative judgment, where one 
 or more of the following objections thereto, appear upon the 
 face of the counterclaim: 1. That the court has not jurisdiction 
 of the subject thereof. 2. That the defendant has not legal 
 capacity to recover upon the same. 3. That there is another 
 action pending between the same parties, for the same cause. 
 
 4. That the counterclaim is not of the character specified in 
 sec. 501 of this act. 5. That the counterclaim does not state 
 facts sufficient to constitute a cause of action." On demurrer 
 generally, see sees. 487 to 499, inclusive. 
 
 Q. A brings an action in the Supreme Court against B. A 
 demurred to the new matter contained in B's answer on the 
 ground that it was insufficient in law upon the face therof. B 
 did itot demur to A's complaint. It was admitted on the argu- 
 ment of A's demurrer that both pleadings were demurrable, 
 the complaint not stating facts sufficient to constitute a cause 
 of action. What should be the decision of the court? 
 
484 CODE PLEADING AND PRACTICE 
 
 A. A's demurrer to B's answer must be overruled, as on a 
 demurrer to an answer for insufficiency the defendant may at- 
 tack the complaint on the ground that it does not state facts 
 sufficient to constitute a cause of action. People v. Booth, 32 
 N. Y. 397; Village v. Cobb, 80 Hun, 27. A demmrer runs 
 through the entire record and reaches back to condemn the 
 first pleading that is defective in substance, because "he who 
 does not plead so as to invite an issue cannot compel his 
 adversary to so plead as to accept it." The old rule is that "a 
 bad answer is good enough for a bad complaint." Clark v. 
 Poor, 73 Hun, 43; PoUitz v. Wabash R. R., 207 N. Y. 123; 
 Vulcan Iron Works v. P. E. Co., 144 App. Div. 827; Pease Oil 
 Co. V. Monroe Oil Co., 78 Misc. 293. 
 
 Q. A complaint served in the Supreme Court does not state 
 facts sufficient to constitute a cause of action. Defendant puts 
 in a general denial. Upon the trial can the defendant take 
 advantage of the situation? If so, in what way? If not, why 
 not? 
 
 A. The defendant can move to dismiss at the trial before the 
 plaintiff opens, on the ground that the complaint does not state 
 facts sufficient to constitute a cause of action. This defect is 
 not waived by the failure to interpose a demurrer, according 
 to sec. 499 of the Code of Civ. Pro., which is as follows: "If 
 such an objection is not taken either by demurrer or answer, 
 the defendant is deemed to have waived it; except to the juris- 
 diction of the court, or the objection that the complaint does 
 not state facts sufficient to constitute a cause of action." 
 
 Q. Plaintiff sues for $25. The defendant in his answer makes 
 no reference to the plaintiff's cause of action, but sets up a 
 counterclaim for $50 for a debt past due on a note made by 
 plaintiff. No further pleading is served. The case was noticed 
 for trial. At the trial both sides move for judgment. What 
 should the court do? What about the costs? If you were the 
 defendant's attorney, what would you have done before or at 
 the trial? 
 
CODE PLEADING AND PRACTICE 485 
 
 A. The court should give judgment for the defendant for 
 $25 with costs. The defendant's attorney should have entered 
 up judgment on the pleadings for $25 before the trial. The 
 defendant by not mentioning plaintiff's cause of action in his 
 answer, is deemed to have admitted it, and the plaintiff, by 
 not replying to the defendant's counterclaim, must be deemed 
 to have admitted his liability thereon. See sees. 515 and 522 
 of the Code of Civ. Pro. Costs go to the defendant as judgment 
 is in his favor, the counterclaim exceeding the amount of the 
 plaintiff's demand. See sees. 504 and 3229 of the Code. Len- 
 non V. Charig, 54 Misc. 298; Ury v. "Wilde, 15 Civ. Pro. Rep. 
 451. 
 
 Q. A sues B. B has previously obtained judgment against 
 A in an action of tort. Under our Code, a cause of action aris- 
 ing on a tort cannot be set up as a counterclaim against a cause 
 of action on contract. Can this judgment be pleaded as a set- 
 off by B? 
 
 A. Yes. "A judgment is a contract of the highest nature 
 known to the law — and actions upon judgments are actions upon 
 contract. The cause or consideration is of no importance, it 
 being merged in the judgment. Hence in an action upon con- 
 tract, the defendant may set up as a counterclaim a judgment 
 obtained by him against the plaintiff in an action of tort. The 
 original cause of action having disappeared, the judgment re- 
 mains as a contract between the parties. If suit were brought 
 upon the judgment, it would be an action upon a contract, and 
 it is not the less so when set up as a counterclaim." Woodruff, 
 J., in Taylor v. Root, 4 Keyes, 335. See also G. P. & R. Co. 
 V. Mayor, 108 N. Y. 276; Cottle v. R. R., 27 App. Div. 604; 
 Knight V. Rotschild, 132 App. Div. 277. 
 
 Q. A brings an action against B for the purchase price of a 
 horse. B sets up a counterclaim for damages caused by the 
 false and fraudulent representations of A to induce B to pur- 
 chase said horse. Question arises as to the right of defendant 
 to plead the counterclaim as above set forth. What do you 
 say? Give reasons. 
 
486 CODE PLEADING AND PRACTICE 
 
 A. The defendant may counterclaim the damages caused by 
 the plaintiff's false and fraudulent representations, where the 
 defendant seeks to recover upon such contract. While it is 
 true that a tort cannot be set up as a counterclaim in an action 
 on contract, nevertheless when it arises out of the same trans- 
 action, the counterclaim can be pleaded. Sections 501 and 502 
 of the Code; Carpenter v. Ins. Co., 93 N. Y. 552; Hall v. 
 Werner, 18 App. Div. 565; Vandervoort v. Mink, 113 App. 
 Div. 601. 
 
 Q. When is a reply necessary? What is the effect of a failure 
 to reply? 
 
 A. A reply is only necessary where the defendant has inter- 
 posed a counterclaim. Section 514 of the Code. If the plaintiff 
 fails to reply or demur to the counterclaim, the defendant 
 may apply, upon notice, for judgment thereupon. Section 515 
 of the Code. Although a reply is only necessary to a coimter- 
 claim, yet in certain cases a reply may be ordered by the court 
 as provided in sec. 516, which is as follows: "Where an answer 
 contains new matter, constituting a defense by way of avoid- 
 ance, the court may, in its discretion, on the defendant's 
 application, direct the plaintiff to reply to the new matter. 
 In that case, the reply, and the proceedings upon failure to 
 reply, are subject to the same rules as in the case of a coimter- 
 claim." 
 
 Q. A man is sued for goods sold and delivered. He comes to 
 you with a receipted bill for the goods. Draw him up an answer 
 to the complaint, omitting title and verification. 
 
 A. (Caption and title, same as in preceding forms.) 
 John Brown, the defendant in the above entitled action, ap- 
 pearing therein by Joseph Story, his attorney, for answer to the 
 complaint herein alleges. 
 
 That on or about the 10th day of May, 1915, he paid said 
 plaintiff the sum of $60 in full payment for the goods men- 
 tioned and described in said complaint, as sold and delivered 
 by the plaintiff to the defendant. 
 
CODE PLEADING AND PRACTICE 487 
 
 Wherefore the defendant demands judgment dismissing 
 said complaint with costs. 
 
 Joseph Story, 
 
 Defendant's Attorney, 
 50 Wall Street, 
 New York City. 
 (Verification.) 
 
 Q. A gave a note to B for $100, dated May 1, 1909, due on de- 
 mand. On June 10, 1915, B sued A on it. Draw an answer for 
 A, omitting title and verification. 
 
 A. (Caption and title.) 
 
 A, the defendant in the above entitled action, by James 
 Kent, his attorney, for answer to the complaint herein alleges: 
 
 That this action was not commenced within six years after 
 the cause of action accrued. 
 
 Wherefore the defendant demands judgment dismissing the 
 complaint with costs. 
 
 James Kent, 
 
 Defendant's Attorney, 
 75 Wall Street. 
 
 New York City. 
 (Verification.) 
 
 (Note.) A note payable on demand is due immediately, and therefore 
 the Statute of Limitations begins to run from its date. Mills v. Davis, 113 
 N. Y. 243. 
 
 Q. X and Y are each engaged in the dry goods business in 
 the City of Buffalo. They dealt with each other during the 
 period between June 1, 1905, and June 1, 1909. They both 
 kept in the usual books the accounts of their dealings with each 
 other. These accounts were mutual, open and current. On 
 June 1, 1909, the date of the last charge in X's account, the 
 books showed a balance due from Y to X of $500. X brings 
 suit to recover this amount on June 1, 1914. Y's attorney in 
 his answer sets up the Statute of Limitations as a defense to 
 all items prior to June 1, 1908. Is the defense good? 
 
488 CODE PLEADING AND PRACTICE 
 
 A. No. Y's claim cannot be allowed, as the Statute of Limi- 
 tations did not begin to run until the date of the last item of 
 the account (June 1, 1909), therefore the six years of limitation 
 had not expired when the action was brought, June 1, 1914. 
 This is provided for by sec. 386 of the Code which is as follows: 
 "In an action brought to recover a balance due upon a mutual, 
 open, and current account, where there have been reciprocal 
 demands between the parties, the cause of action is deemed to 
 have accrued from the time of the last item, proved in the 
 account on either side. 
 
 Q. A sues B on a note which is eight years overdue. No 
 payments have been made, and no indorsements of liability 
 have been made thereon. B comes to you with the complaint. 
 How would you take advantage of the defense? 
 
 A. The claim of course is barred by the Statute of Limitations, 
 the note being more than six years overdue. Section 382 of the 
 Code. The defense of the Statute of Limitations can only 
 be taken advantage of by answer, according to sec. 413 of the 
 Code, which is as follows: "The objection, that the action 
 was not commenced within the time limited, can be taken only 
 by answer. The corresponding objection to a defense or coun- 
 terclaim can be taken only by reply; except where a reply is not 
 required, in order to enable the plaintiff to raise an issue of 
 fact, upon an allegation contained in the answer." 
 
 Q. A sues B for goods sold and dehvered. B puts in an answer 
 of general denial, and on the trial offers to prove payment. 
 Will he be allowed to do so? 
 
 A. No. Payment is an affirmative defense. All facts which 
 show the plaintiff's allegations to be untrue may be proved 
 under a general denial, while matters in avoidance merely, 
 which are consistent with the truth of plaintiff's averment, but 
 show that he has no cause of action, are affirmative defenses, 
 and must therefore be specifically pleaded. ' ' Payment, whether 
 total or partial, of the indebtedness sued for, cannot be proved 
 
CODE PLEADING AND PRACTICE 489 
 
 under a general denial, even though the complaint contains the 
 usual formal but unnecessary allegation of nonpayment, and 
 this be specifically traversed." McKyring v. Bull, 16 N. Y. 
 297; Conkling v. Weatherwax, 181 N. Y. 258. 
 
 (Note.) "But if the complaint alleges that no part of the indebtedness 
 shown has been paid, except specified suras, and demands judgment for the 
 balance, a general denial puts in issue the allegation that no other payments 
 have been made, and lets in evidence of other payments than those admitted. 
 Where plaintiff sues for a balance, he voluntarily invites examination into 
 the amount of the indebtedness, and the extent of the reduction thereof by 
 payments." Quinn v. Lloyd, 41 N. Y. 349. "Where a complaint contains an 
 allegation of nonpayment as a necessary and material fact to constitute the 
 cause of action, proof of nonpayment is admissible under a general denial." 
 Knapp v. Roche, 94 N. Y. 333. "As a general rule payment is an affirmative 
 defense and cannot be proven under a general denial. But where the plaintiff 
 declares generally, upon a balance due, so as to leave both sides of the account 
 open upon the general issue, the defendant may prove payment under a 
 general denial. If, however, the plaintiff alleges a specific amount as originally 
 due and admits partial payments thereon, a general denial puts in issue the 
 original amount, but does not permit proof of pa3rments thereon beyond the 
 amount admitted in the complaint." Acharan v. Samuel Bros., 144 App. 
 Div. 182. 
 
 Q. A sues B in ejectment. B answers by general denial only. 
 On the trial B offered to prove title to the premises in C. A 
 objected to the evidence as being inadmissible under the 
 pleadings. What was the ruling of the court? 
 
 A. The evidence is admissible. In ejectment, the defendant 
 may prove title in a third party under a general denial, because 
 plaintiff must prove title to estabUsh his cause of action. 
 Raynor v. Timerson, 46 Barb. 518; Oilman v. Oilman, 111 
 N. Y, 265; Benton v. Hatch, 122 N. Y. 322; Feinberg v. Allen, 
 143 App. Div. 870. 
 
 Q. A by his attorney, served a complaint on B in an action 
 for trespass, alleging that B entered upon his land and broke 
 down several fences. B's attorney in his answer pleads a 
 general denial and also sets up that the title to the property 
 belongs to C. At the trial A's attorney proves possession, the 
 trespass, and damages, then rests, offering no evidence as to 
 
490 CODE PLEADING AND PRACTICE 
 
 A's title. B's attorney offers evidence showing title in C and 
 closes his case. No other evidence is offered on either side. 
 Who should have judgment? 
 
 A, Judgment should be given for A, as in an action of tres- 
 pass on real estate in the possession of the plaintiff, the posses- 
 sion is sufficient to maintain the action against a wrongdoer. 
 Rood V. N. Y. & E. R. R., 18 Barb. 84. A general denial, there- 
 fore, does not put the plaintiff's title in issue. Title not being 
 in issue it was not necessary for A, the plaintiff, to prove his 
 title. Squires v. Seward, 16 How. Pr. 478; Hill v. Water 
 Commrs. of Watkins, 77 Hun, 491; Lynk v. Weaver, 128 N. Y. 
 177, 
 
 Q. A sues B in conversion for taking certain furniture which 
 A was in possession of. B answers with a general denial and 
 at the trial offers evidence to show title in C, a stranger. The 
 testimony is objected to. What should be the ruling of the 
 court? 
 
 A. Objection should be sustained. "In an action for the 
 unlawful taking and conversion of chattels, where plaintiff was 
 in actual possession of the chattels at the time of the taking, 
 defendant to prevail must connect himself in some way with 
 the owner and show that the taking was by his authority, or 
 by virtue of process or right acquired through legal proceedings 
 against him. It is no defense to show title in a third person." 
 Wheeler v. Lawson, 103 N. Y. 40. Therefore a general denial 
 does not put title in issue, hence the proof should not be al- 
 lowed. It has been repeatedly held that where property is 
 taken from the possession of a person by a wrongdoer the 
 party can maintain an action for the wrong though he is not 
 the owner of the property. Frost v. Mott, 34 N. Y. 253; 
 Stowell V. Otis, 71 N. Y. 38; Adelberg v. Horowitz, 32 App. 
 Div. 410; Smith v. Holt, 37 App. Div. 25. 
 
 Q. A sues B for slander. B pleads a general denial only, 
 and on the trial, he offers to prove the general bad reputation 
 
CODE PLEADING AND PRACTICE 491 
 
 of A. A has not been a witness. A's attorney objects. What 
 should be the ruUng of the court? Give your reasons. 
 
 A. The objection should be sustained, as circumstances in 
 mitigation, such as the bad reputation of the plaintiff, must be 
 set up in the answer, in order to make evidence thereof ad- 
 missible. Willover v. Hill, 72 N. Y. 38. 
 
 Q. A sues B on a promissory note in 1908. The note was 
 payable on demand, and was dated January 1, 1901. B an- 
 swered by general denial. At the trial, B attempts to prove 
 that the note is barred by the Statute of Limitations. Ought 
 he be allowed to do so over A's objection? 
 
 A. No. The Statute of Limitations is an affirmative defense, 
 and to be available, must be specifically set up in the answer. 
 Section 413 of Code, supra; Sage v. Culver, 147 N. Y. 241; 
 Devoe v. Lutz, 133 App. Div. 356. 
 
 Q. A sells B certain goods for the price of 160. There is no 
 memorandum signed by either party. B refuses to take the 
 goods, and A sues him for the price. B answers by general 
 denial, and at the trial attempts to introduce the defense of 
 the Statute of Frauds. A objects. Is the objection good? 
 
 A. The objection should be sustained. It is now well settled 
 that the Statute of Frauds is an affirmative defense, and must 
 be specifically pleaded. It cannot be taken advantage of under 
 a general denial. When the defendant does not plead the 
 Statute of Frauds in his answer, he is deemed to have waived 
 its benefits. Barret v. Johnson, 77 Hun, 527; Duffy v. O'Don- 
 ovan, 46 N. Y. 226; Marston v. Sweet, 66 N. Y. 206; Crane v. 
 Powell, 139 N. Y. 379. 
 
 (Note.) Under a general denial, the defendant cannot take advantage of 
 any statute; he must do so by setting it up in the answer. "The objection 
 if the defect appears upon the face of the complaint, must be taken by de- 
 murrer. (Code, sec. 488.) If it does not appear upon the face of the com- 
 plaint, it may be taken by answer. (Code, sec. 498.) And if neither taken 
 by demurrer or answer is deemed to have been waived. In this case, it ap- 
 
492 CODE PLEADING AND PRACTICE 
 
 pears that the defendant has answered, and the answer contains merely a 
 general denial. It would seem to be clear, therefore, that he has waived 
 the right to raise any question based upon the statute referred to." Parmele 
 Co. V. Haas, 171 N. Y. 579. 
 
 Q. A sues B upon an account stated. B interposes an an- 
 swer of general denial, and at the trial attempts to prove that 
 the account was between B and C and that his indebtedness 
 is to C. A objects on the ground that the defendant cannot do 
 so under a general denial. How should the court decide, and 
 why? 
 
 A. B should be allowed to prove that the account was 
 between himself and C. "All of the questions seem to have 
 been excluded upon the theory that they were inadmissible 
 under the answer. But under his general denial, the defendant 
 had the right to give any evidence which would show that 
 there was actually no account between him and the plaintiff, 
 and that he had no dealings at any time with her, because if 
 there were no accounts and no dealings between them, then 
 there was nothing upon which an account could be stated; and 
 he had the right to give any evidence tending to show that 
 no account had been stated." Earl, J., in Field v. Knapp, 108 
 N. Y. 87. 
 
 Q. When and how must a verification be made by a party 
 pleading? 
 
 A. This question is answered by sec. 525 of the Code of Civ. 
 Pro., which is as follows: "The verification must be made by 
 the affidavit of the party, or, if there are two or more parties 
 united in interest, and pleading together, by at least one of 
 them, who is acquainted with the facts, except as follows: 
 1. When the party is a domestic corporation, the verification 
 must be made by an officer thereof. 2. Where the people of 
 the state are, or a public officer, in their behaK, is the party, 
 the verification may be made by any person acquainted with 
 the facts. 3. Where the party is a foreign corporation; or 
 where the party is not within the county where the attorney 
 
CODE PLEADING AND PRACTICE 493 
 
 resides, or if the latter is not a resident of the state, the county 
 where he has his office, and capable of making the affidavit; 
 or, if there are two or more parties united in interest, and 
 pleading together, where neither of them acquainted with 
 the facts is within the county, and capable of making the 
 affidavit; or where the action or defense is founded upon a 
 written instrument for the payment of money only, which is in 
 the possession of the agent or the attorney; or where all the 
 material allegations of the pleading are within the personal 
 knowledge of the agent or the attorney; in either case, the 
 verification may be made by the agen;t of or the attorney 
 for the party." 
 
 Q. Draw a verification by an attorney to a complaint in an 
 action for goods sold and delivered, where a client resides in a 
 different county from that of his attorney. 
 
 A. State of New York, County of New York, ss. 
 Joseph Story being duly sworn, deposes and says: That 
 he is the attorney for the plaintiff herein, and resides at No. 56 
 Charles Street, in the City of New York, County of New York; 
 that he has read the foregoing complaint and knows the con- 
 tents thereof, and that the same is true of his own knowledge, 
 except as to the matters therein stated to be alleged upon in- 
 formation and belief, and as to those matters, he believes it 
 to be tiiie. 
 
 Deponent further says, that the sources of his information, 
 and the ground of his belief as to the matters not stated upon 
 his knowledge are (state facts). 
 
 Deponent further says that the reason this verification is 
 not made by the plaintiff is, that the plaintiff is not within the 
 said county of New York. 
 
 Joseph Story. 
 Sworn to before me this 
 10th day of May, 1908. 
 Thomas Jones, 
 Notary Public, 
 New York County. 
 
494 CODE PLEADING AND PRACTICE 
 
 This is provided for by sec. 626 of the Code, which is as fol- 
 lows: "The affidavit of verification must be to the effect, that 
 the pleading is true to the knowledge of the deponent except 
 as to the matters therein stated to be alleged upon information 
 and belief, and that as to those matters he believes it to be 
 true. Where it is made by a person, other than the party, he 
 must set forth, in the affidavit, the grounds of his belief, as 
 to all matters not stated upon his knowledge, and the reason 
 why it is not made by the party." 
 
 Q. A brings action against a newspaper publishing company 
 for libel. The attorney for A serves a verified complaint, and 
 the attorney for the company serves an unverified answer. 
 What proceedings, if any, should A's attorney take? 
 
 A. A's attorney cannot do anything, he must go to trial. 
 In an action for libel, even though the complaint is verified, 
 the defendant need not verify his answer, because the defendant 
 would be privileged from testifying as a witness, concerning 
 an allegation or denial contained in his answer. Wilson v. 
 Bennett, 2 Civ. Pro. Rep. 34; Goff v. Star Printing Co., 21 
 Abb. N. C. 211. It is also provided for in sec. 523 of the Code, 
 as follows: "Where a pleading is verified, each subsequent 
 pleading, except a dem\irrer, or the general answer of an infant 
 by his guardian ad litem, must also be verified. But the veri- 
 fication may be omitted, in a case where it is not otherwise 
 specially prescribed by law, where the party pleading would 
 be privileged from testifying, as a witness, concerning an allega- 
 tion or denial contained in the pleading. A pleading cannot 
 be used, in a criminal prosecution against the party, as proof 
 of a fact admitted or alleged therein." Section 1757 of the 
 Code provides in a suit for divorce on the ground of adultery 
 as follows: "The answer of the defendant may be made, with- 
 out verifying it, notwithstanding the verification of the com- 
 plaint, except that an answer containing a counterclaim, which 
 charges adultery must be verified in respect of such counter- 
 claim, where the complaint is verified." 
 
 Q. Your client is sued. You answer, and in addition to 
 
CODE PLEADING AND PRACTICE 495 
 
 separate defenses plead a counterclaim then existing in his 
 favor, which has but six months to run before it will be barred 
 by the Statute of Limitations. The case is at issue for a year, 
 and is then discontinued by the plaintiff. What would you 
 advise in such a case? 
 
 A. The defendant has the right to object to the discon- 
 tinuance of the action, as his counterclaim would be endangered 
 thereby. "The court will not refuse leave to plaintiff to dis- 
 continue his action, although a counterclaim has been inter- 
 posed by the defendant, imless it appear that the counter- 
 claim would be jeopardized by the discontinuance." Pac. 
 Mail S. S. Co. V. LeuUng, 7 Abb. Pr. (N. S.) 37. See also 
 Livermore v. Bainbridge, 43 How. Pr. 273; Gwathmey v. 
 Cheatham, 21 Him, 576. 
 
 Q. A case is at issue. The plaintiff learns of certain facts 
 after issue has been joined, which he would like to add for the 
 purpose of strengthening his case. By what methods can he 
 get these facts before the court? 
 
 A. By amending the complaint. The amendment may be 
 made within twenty days after issue is joined; of course, with- 
 out costs, and without application to the court. Section 542 
 of the Code. If after the expiration of twenty days, applica- 
 tion must be made to the court for leave. The court may, on 
 such terms as it deems just, grant an order amending the com- 
 plaint, and permit the insertion of the newly discovered facts. 
 Section 723 of the Code. 
 
 Q. Plaintiff's attorney notices a case for trial within twenty 
 days after the service of an answer upon him. After the notice 
 was served, and within twenty days, the defendant's attorney 
 serves a bona fide amended answer, setting up a new defense, 
 regularly upon the plaintiff's attorney. Plaintiff's attorney 
 seeks to force defendant to trial for the term of court for which 
 notice was served. Note of issue was regularly filed, and the 
 case put on the calendar. The amended answer was served 
 
496 CODE PLEADING AND PBACTICE 
 
 SO late, that new notice of trial could not be given. Can the 
 defendant be compelled to try at that term? 
 
 A. No. "Where after issue has been joined in an action, 
 and the same has been regularly noticed for trial by plaintiff, 
 and the defendant, in good faith, and within the time allowed 
 by law, serves an amended answer, the issue theretofore joined 
 and noticed for trial is destroyed, and the action cannot be 
 tried until new issues have been joined and regularly noticed 
 for trial. Where an amended pleading is served in bad faith, 
 the remedy of the party aggrieved is by motion to strike it 
 out." Ostrander v. Conkey, 20 Hun, 421. See also Chfton v. 
 Brown, 27 Hun, 231; Coles v. Lamb, 19 App. Div. 236. 
 
 Q. Plaintiff in an action for breach of contract, in his com- 
 plaint, demanded judgment for $2,000. The jury gave him a 
 verdict for $3,000. How, if at all, can the plaintiff avail himself 
 of this? 
 
 A. "Where a jiuy awards damages exceeding the amount 
 demanded in the complaint, the plaintiff cannot amend the 
 complaint unless he abandons the verdict, pays costs, and con- 
 sents to a new trial." Decker v. Parsons, 11 Hun, 295. "Ac- 
 cordingly in all actions for the recovery of damages, whether 
 sounding in tort or on contract, the sum in the conclusion of the 
 complaint must be sufficient to cover the real demand; it would 
 be unjust to allow it to be enlarged after verdict, without 
 granting a new trial, as the defendant may have gone to trial, 
 relying that no more damages than the sum claimed could be 
 recovered against him." Pharis v. Gere, 31 Hun, 443. 
 
 Q. A brought action against B and C for assault and bat- 
 tery. The complaint stated a cause of action against both, and 
 the proof on the trial sustained the allegation of the complaint. 
 Both B and C appeared and defended the action. The jury 
 found a verdict for $1,000 for the plaintiff. The complaint in 
 the prayer for relief, through an inadvertence, demanded 
 judgment only against B, who was financially irresponsible. 
 On the day subsequent to the trial, A's attorney, having dis- 
 
CODE PLEADING AND PRACTICE 497 
 
 covered the defect of his complaint, makes a motion before the 
 trial court, which was opposed, and obtained an order per- 
 mitting him to so amend the complaint, as to demand judg- 
 ment against both B and C, and then entered a judgment 
 against both. C appeals. Who wins and why? 
 
 A. C wins. "The complaint in this case should have been 
 amended before the verdict. Doubtless the court under 
 sec. 723 of the Code, on motion, could have allowed such an 
 amendment at any time before the submission of the case to the 
 jury. After the verdict, the court possessed no such power. 
 The effect of such an amendment and order was to make such 
 a verdict as the jury never in fact rendered." Bradley v. 
 Shaffer, 64 Hun, 428. 
 
 Q. A purchases cigars of the Amalgamated Cigar Co. of 
 New York; cigars to be according to sample. A keeps the 
 cigars, says nothing, and in an action for their price, judgment 
 is taken against him by default, which judgment he pays. 
 He afterwards buys other cigars from the same firm, which are 
 according to sample, and in an action for their price, sets up 
 his damage on the former shipment as a counterclaim in the 
 action. Can the counterclaim be maintained? 
 
 A. Yes, for a breach of warranty is not a defense to an action 
 for the purchase price of goods, but is merely available by way 
 of counterclaim. It is the settled rule that one, having a 
 counterclaim, is not bound to set it up, when an action is 
 brought against him by the one against whom the counterclaim 
 exists, but may sue upon the counterclaim as an independent 
 cause of action, which it is, at any time. Brown v. Gallaudet, 
 80 N. Y. 413; Ogden v. Pioneer Iron Works, 91 App. Div. 396; 
 Walkup V. Mesick, 110 App. Div. 326. 
 
 Q. A tenant is sued for rent of his premises by his landlord, 
 and appears but does not answer. Judgment was taken by 
 default. Afterwards the tenant sues the landlord for damages 
 caused by a former eviction. The landlord sets up the judg- 
 ment by default in the former action by him as a defense. The 
 32 
 
498 CODE PLEADING AND PRACTICE 
 
 tenant plaintiff demurs to the answer. Judgment for whom 
 and why? 
 
 A. Judgment for the landlord. While, as we have seen, a 
 defendant, having a counterclaim, is not bound to set it up, yet 
 when the same facts constitute a counterclaim and a defense, 
 and he does not defend the action, a judgment rendered against 
 him becomes res adjudicata, upon any defense which the 
 defendant might have interposed. The defendant might have 
 set up the defense of eviction, and as he did not avail himself of 
 it, he is concluded by the former judgment. Phipps v. Op- 
 brandy, 69 App. Div. 497. 
 
 (Note.) "A judgment rendered on the merits is coextensive with the 
 issues upon which it is founded, and is conclusive between the parties thereto, 
 not only to the matters actually proved and submitted for decision, but 
 also as to every other matter directly at issue by the pleadings, which the 
 defeated party might have litigated." Lorillard v. Clyde, 122 N. Y. 41. 
 "The doctrine of res adjudicata appUes not only to judgments rendered after 
 a litigation of the matters in controversy, but also to judgments upon de- 
 fault and confession, and as to every defense that might have been raised." 
 Brown v. Mayor, 66 N. Y. 385. See also Jarvis v. Driggs, 69 N. Y. 143; 
 Simon v. Bierbauer, 154 App. Div. 506. 
 
 Q. A brings summary proceedings against B to recover 
 possession of certain premises leased to him. Judgment was 
 rendered by default. Subsequently B brings action against A 
 to recover damages for breach of the alleged agreement, 
 whereby A agreed to allow B to remain in possession for six 
 months after the expiration of the lease. A sets up the judg- 
 ment in the first action as a defense. Judgment for whom and 
 why? 
 
 A. Judgment for A. "Either the plaintiff or the defendant 
 had a right to the possession of the premises. If under any 
 agreement, plaintiff had such a right, she could not be dis- 
 possessed or removed. Any agreement which authorized her to 
 keep possession was a perfect defense to the summary pro- 
 ceedings, and if such an agreement existed, no judgment of 
 removal was authorized. Such agreement, not having been 
 set up or proved, plaintiff is not in a position to claim that she 
 
CODE PLEADING AND PRACTICE 499 
 
 had a right to the possession of the premises. She had had her 
 day in court, with full opportunity to be heard and to assert and 
 protect her rights, and having failed to do so at the proper 
 time, the record of the proceedings upon which she might have 
 done so, is a bar to her right to recover in the action." Nemetty 
 V. Nayler, 100 N. Y. 562. See also Reich v. Cochrine, 151 
 N. Y. 122; Barber v. Kendall, 158 N. Y. 401. 
 
 Q. What is the office of a bill of particulars? Will a bill of 
 particulars of an answer be granted, and when? 
 
 A. The office of a bill of particulars is to extend and define 
 the pleading, so as to enable the adverse party to prepare to 
 meet the case to be made against him. It is not a means of 
 discovery of the evidence to be relied upon by the other side. 
 A bill of particulars is an amplification of the pleadings. A 
 defendant, as well as a plaintiff, may be required to furnish 
 particulars of his claim, and this includes not merely the case 
 of an affirmative claim, as a counterclaim, but also of matter 
 set up merely as a defense. Bishop's Code Prac. 191; Ball v. 
 Ev. Post Pub. Co., 38 Hun, 11; 100 N. Y. 602. Section 531 
 of the Code provides in part as follows: "The court may, in any 
 case, direct a bill of particulars of the claim of either party to be 
 delivered to the adverse party." The leading case on the sub- 
 ject is Tilton v. Beecher, 59 N. Y. 176. In this case the court 
 said: "That in almost every kind of case in which the defendant 
 can satisfy the court that it is necessary to a fair trial, that he 
 should be apprised beforehand of the particulars of the charge 
 which he is expected to meet, the court has authority to 
 compel the adverse party to specify those particulars, so far as 
 is in his power." See also Dwight v. Ger. Life Ins. Co., 84 
 N. Y. 493. 
 
 Q. What is the purpose and object of an affidavit of merits? 
 Draw one. 
 
 A. The purpose of an affidavit of merits is to prevent applica- 
 tion being made to the court for the mere purpose of delay. 
 
500 CODE PLEADING AND PRACTICE 
 
 The affidavit is required when an ex parte application is made 
 asking an extension of time, etc. Rule 24 of the General Rules 
 of Practice provides: "That no order extending the defendant's 
 time to answer or demur shall be granted, unless the party- 
 applying for such order shall present to the court an affidavit 
 of merits." 
 
 Supreme Court, 
 New York County. 
 
 John Brown, Plaintiff, 
 
 against 
 Thomas Jones, Defendant. 
 
 Affidavit of Merits. 
 
 City and County or New York, ss. 
 
 Thomas Jones being duly sworn, says, that he is the defend- 
 ant in the above entitled action, that he has fully and fairly 
 stated the case to Joseph Story, his counsel in this action, who 
 resides at No. 5 East 12th Street, in the City of New York, 
 and that he has a good and substantial defense on the merits 
 to the action, as he is advised by said counsel, after such 
 statement made as aforesaid, and verily believes it to be true. 
 
 Thomas Jones. 
 Sworn to before me this 
 10th day of June, 1915. 
 Richard Gray, 
 Notary PubUc, 
 New York County. 
 
 Q. What is an injunction, and in what cases is it granted? 
 
 A. This question is answered by sees. 603 and 604 of the Code 
 of Civ. Pro.; sec. 603 is as follows: "Where it appears, from the 
 complaint, that the plaintiff demands and is entitled to a judg- 
 ment against the defendant, restraining the commission or con- 
 tinuance of an act, the commission or continuance of which, 
 during the pendency of the action, would produce injury to 
 the plaintiff, an injunction order may be granted to restrain it. 
 The case, provided for in this section, is described in this act, 
 
CODE PLEADING AND PRACTICE 501 
 
 as a case, where the right to an injunction depends upon the 
 nature of the action." Section 604 provides as follows: "In 
 either of the following cases an injunction order may also be 
 granted in an action: 1. Where it appears, by affidavit, that 
 the defendant, during the pendency of the action, is doing, 
 or procuring, or suffering to be done, or threatens, or is about 
 to do, or to procure, or suffer to be done, an act, in violation of 
 the plaintiff's rights, respecting the subject of the action, and 
 tending to render the judgment ineffectual, an injunction order 
 may be granted to restrain him therefrom. 2. Where it appears, 
 by affidavit, that the defendant, during the pendency of the 
 action, threatens, or is about to remove, or to dispose of his 
 property, with intent to defraud the plaintiff, an injunction 
 order may be granted, to restrain the removal or disposition." 
 
 Q. An injunction order is granted ex parte against your client. 
 You desire to have the same vacated. Where, and to whom 
 would you apply? 
 
 A. Application to vacate the order ex parte can only be 
 made to the judge who granted the order, and it can only be 
 made upon the papers upon which it was granted. See sec. 
 626 of the Code. The application also may be made upon 
 notice to the court. Such an application may be founded upon 
 the papers upon which the injunction was granted; or upon 
 proof, by affidavit, on the part of the defendant, or both. 
 See sec. 627 of the Code. 
 
 Q. In what causes of action can you procure an order of 
 arrest? 
 
 A. Section 549 of the Code provides as follows: "A defendant 
 may be arrested in an action, as prescribed in this title, where 
 the action is brought for either of the following causes: 1. To 
 recover a fine or penalty. 2. To recover damages for personal 
 injury; an injury to property, including the wrongful taking, 
 detention or conversion of personal property; breach of a 
 promise to marry; misconduct or neglect in office, or in a pro- 
 fessional employment; fraud, or deceit; or to recover a chattel 
 
502 CODE PLEADING AND PEACTICE 
 
 where it is alleged in the complaint that the chattel or a part 
 thereof has been concealed, removed or disposed of so that it 
 cannot be found or taken by the sheriff and with intent that 
 it should not be so found or Ikaken, or to deprive the plaintiff 
 of the benefit thereof; or to recover for money received, or to 
 recover property or daiaages for the- conversion or misapplica- 
 tion of property where it is alleged in the complaint that the 
 money was received or the f)roperty was embezzled or fraudu- 
 lently misapplied by a pubUc officer or by an attorney, solicitor 
 or counselor, or by an officer or agent of a corporation or banking 
 association in the course of his employment, or by a factor, agent, 
 broker, or other person in a fiduciary capacity. Where such 
 allegation is made, the plaintiff caDggot receiver unless he proves 
 the same on the trial of the action; and a jiidgment for the de- 
 fendant is not a bar to the new action to recover the money or 
 the chattel. 3. To recover moneys, funds, or property held 
 or owned by the state, or held or owned officially or otherwise 
 for or in behalf of a public or governmental interest by a munic- 
 ipal or other pubUc corporation, board, officer, custodian, 
 agency, or agent of the state, or of a city, county, village, or 
 other division, subdivision, department, or portion of the state, 
 which the defendant has, without right, obtained, received, 
 converted, or disposed of; or to recover damages for so obtain- 
 ing, receiving, paying, converting, or disposing of the same. 4. 
 In an action upon contract, express or implied, other than a 
 promise to marry, where it is alleged in the complaint that the 
 defendant was guilty of a fraud in contracting or incurring the 
 liability, or that he has, since the making of the contract, or 
 in contemplation of making of the same, removed or disposed 
 of his property with intent to defraud his creditors, or is about 
 to remove or dispose of the same with like intent; but where 
 such allegation is made, the plaintiff cannot recover unless he 
 proves the fraud on the trial of the action; and a judgment 
 for the defendant is not a bar to a new action to recover upon 
 the contract only." The order of arrest may also be granted in 
 equity and divorce cases. These cases are provided for in 
 sec. 550, which is as follows: "A defendant may also be arrested 
 in an action wherein the judgment demanded requires the per- 
 
CODE PLEADING AND PRACTICE 503 
 
 formance of an act, the neglect or refusal to perform which 
 would be punishable by the court as a contempt, where the 
 defendant is not a resident of the state, or, being a resident, is 
 about to depart therefrom, by reason of which nonresidence or 
 departure there is danger that a judgment or an order requir- 
 ing the performance of the act will be rendered ineffectual." 
 
 Q. What is the object of a warrant of attachment? In what 
 actions can it be had, and what is necessary to obtain it? 
 
 A. The object of an attachment is to secure property of the 
 defendant out of which the judgment may be satisfied when ob- 
 tained. It keeps the property under the control of the court, so 
 that it can be levied upon when execution is issued. Section 
 635 of the Code enumerates the cases in which the warrant 
 may be granted. It provides that: "A warrant of attachment 
 against the property of one or more defendants in an action, 
 may be granted upon the application of the plaintiff, as specified 
 in the next section, where the action is to recover a sum of money 
 only, as damages for one or more of the following causes: 1. 
 Breach of contract, express or implied, other than a contract to 
 marry. 2. Wrongful conversion of personal property. 3. An 
 injury to person or property, in consequence of negligence, 
 fraud or other wrongful act." Section 636 of the Code states 
 what must be shown to secure the warrant, and is as follows: 
 "To entitle the plaintiff to such a warrant, he must show, by 
 affidavit, to the satisfaction of the judge granting the same, as 
 follows: 1. That one of the causes of action specified in the last 
 section exists against the defendant. If the action is to recover 
 damages for breach of contract, the affidavit must show that 
 the plaintiff is entitled to recover a sum stated therein, over 
 and above all counterclaims known to him. 2. That the de- 
 fendant is either a foreign corporation or not a resident of the 
 state; or, if he is a natural person and a resident of the state, 
 that he has departed therefrom, with intent to defraud his 
 creditors, or to avoid the service of a summons, or keeps him- 
 self concealed therein with the like intent; or, if the defendant 
 is a natural person or a domestic corporation, that he or it has 
 
504 CODE PLEADING AND PRACTICE 
 
 removed, or is about to remove, property from the state, with 
 intent to defraud his or its creditors; or has assigned, disposed of, 
 or secreted, or is about to assign, dispose of or secrete property 
 with the like intent; or where, for the purpose of securing credit 
 or the extension of credit, the defendant has made a false state- 
 ment in writing, under his own hand or signature, or under the 
 hand or signature of a duly authorized agent, made with his 
 knowledge and acquiescence as to his financial responsibility 
 or standing; or, where the defendant, being an adult and a res- 
 ident of the state, has been continuously without the state of 
 New York for more than six months next before the granting 
 of the order of publication of the summons against him, and 
 has not made a designation of a person upon whom to serve a 
 summons in his behalf, as prescribed in sec. 430 of this act; or 
 a designation so made no longer remains in force; or service 
 upon the person so designated cannot be made within the state, 
 after diligent effort." 
 
 Q. What is an action of replevin, and what must the affidavit 
 in such an action contain? 
 
 A. An action of replevin is one to obtain the possession of a 
 chattel which has been wrongfully converted or detained by the 
 defendant. Section 1695 of the Code provides as follows: "The 
 affidavit, to be deUvered to the Sheriff, as prescribed in the last 
 section, must particularly describe the chattel to be replevied; 
 and must contain the following allegations: 1. That the plaintiff 
 is the owner of the chattel, or is entitled to the possession thereof, 
 by virtue of a special property therein; the facts with respect 
 to which must be set forth. 2. That it is wrongfully detained 
 by the defendant. 3. The alleged cause of the detention thereof, 
 according to the best knowledge, information, and beUef of the 
 person making the affidavit. 4. That it has not been taken by 
 virtue of a warrant, against the plaintiff, for the collection of a 
 tax, assessment, or fine, issued in pursuance of a statute of the 
 state, or of the United States; or, if it has been taken under 
 color of such a warrant, either that the taking was unlawful, by 
 reason of defects in the process, or other causes specified, or 
 
CODE PLEADING AND PRACTICE 505 
 
 that the detention is unlawful, by reason of facts specified, 
 which have subsequently occurred. 5. That it has not been 
 seized by virtue of an execution or warrant of attachment, 
 against the property of the plaintiff, or of any person from or 
 through whom the plaintiff has derived title to the chattel, 
 since the seizure thereof; or, if it has been so seized, that it was 
 exempt from the seizure, by reason of facts specified, or that 
 its detention is unlawful, by reason of facts specified which 
 have subsequently occurred. 6. Its actual value." 
 
 Q. Your client, a resident of Pennsylvania, was assaulted in 
 that state by a resident of New Jersey. He brings an action in 
 the Supreme Court, New York County, against his assailant, the 
 summons being personally served upon the latter in New York 
 City. The defendant answers, and the case comes to trial. At 
 the close of the trial, the defendant's attorney requested the 
 court to dismiss as the action could not be maintained in the 
 courts of this state, which request was refused. The defendant 
 appeals. Is the appeal good? 
 
 A. The appeal is not good. While the court might, in its 
 discretion, have refused to entertain the action, the defendant 
 was not entitled to a dismissal as a matter of right. "Courts 
 of this state may in their discretion, entertain jurisdiction of 
 any action for the recovery of damages for a personal injury 
 between citizens of another state actually domiciled therein 
 when the action was commenced, although the injury was com- 
 mitted in the state of their residence and domicile." Burdick 
 v. Freeman, 120 N. Y. 426. "The refusal of the court to en- 
 tertain jurisdiction of an action between nonresidents, for a 
 tort committed out of the state, does not depend upon the 
 motion of the parties necessarily, but the court may refuse to 
 do so upon its own motion." Winchester v. Brown, 37 State 
 Rep. 542. 
 
 Q. A, a resident of CaUfornia, sues B, your client, a resident 
 of New Jersey, as maker of a promissory note, naming the 
 county of New York as the place of trial. Can you, and if so, 
 on what grounds, procure a change of the place of trial? 
 
506 CODE PLEADING AND PRACTICE 
 
 A. The only grounds for procuring a change of the place of 
 trial would be, that a fair and impartial trial could not be had 
 in that county, or that the convenience of witnesses would be 
 best suited by having the trial in another county. The county 
 designated was the proper one, according to sec. 984 of the Code, 
 which is as follows: "An action, not specified in the last two 
 sections, must be tried in the county, in which one of the parties 
 resided, at the commencement thereof. If neither of the parties 
 then resided in the state, it may be tried in any county which 
 the plaintiff designates, for that purpose, in the title of the 
 complaint." Section 987 provides as follows: "The court may, 
 by order, change the place of trial, in either of the following 
 cases: 1. Where the county, designated for that purpose in the 
 complaint, is not the proper county. 2. Where there is reason 
 to beUeve, that an impartial trial cannot be had in the proper 
 county. 3. Where the convenience of witnesses, and the ends 
 of justice, will be promoted by the change." 
 
 Q. Plaintiff resides in A county. Defendant resides in B 
 county. Plaintiff brings an action on a transitory cause of ac- 
 tion in C county. The defendant asks for a change for the 
 place of trial from C to B county. On the argument of the 
 motion, the plaintiff produces affidavits showing that all the 
 witnesses reside in C county. Should the affidavits be ad- 
 mitted in determining the question? 
 
 A. No. The defendant is entitled to a change as a matter 
 of right to his own county, when a county in which neither of 
 the parties reside is designated. "On a motion to change the 
 place of trial of an action to the county in which both parties 
 reside as required by sec. 984 of the Code, the plaintiff should 
 not be permitted to read affidavits showing that the conven- 
 ience of witnesses requires that the trial take place in the 
 county named in the summons and complaint. The proper 
 practice is to change the place of trial to the proper county, 
 and allow the plaintiff to make a motion to change it back to 
 the county designated in the summons for the convenience of 
 witnesses." Sylvester v. Lewis, 55 App. Div. 470. See also 
 
CODE PLEADING AND PRACTICE 507 
 
 Acker v. Leland, 96 N. Y. 383; Mills v. Starin, 119 App. Div. 
 336. 
 
 Q. A summons and complaint has been served upon your 
 client, in which the proper county is not named. The above 
 are the only papers that have been served in the action. You 
 desire to change the county of trial to the proper one before 
 answering. State what you would do. 
 
 A. This is answered by sec. 986 of the Code which is as fol- 
 lows: "Where the defendant demands that the action be tried 
 in the proper county, his attorney must serve upon the plain- 
 tiff's attorney, with the answer, or before service of the answer, 
 a written demand accordingly. The demand must specify 
 the county, where the defendant requires the action to be 
 tried. If the plaintiff's attorney does not serve his written 
 consent to the change, as proposed by the defendant, within 
 five days after service of the demand, the defendant's attorney 
 may, within ten days thereafter, serve notice of a motion to 
 change the place of trial." 
 
 Q. Upon the trial of an action, the attorneys for both par- 
 ties ask that a verdict be directed, each in favor of his client. 
 The motion of the one is denied, and the motion of the other is 
 granted. The one whose motion was denied appeals, on the 
 ground that he produced sufficient evidence to warrant the 
 case being submitted to the jury. What should be the deci- 
 sion on appeal? 
 
 A. The appeal should be dismissed. A request by both 
 parties for the direction of a verdict is a virtual consent to 
 the determination of the issues by the court. When both 
 request the direction of a verdict, they submit to the court for 
 decision any question of fact presented by the evidence. "The 
 effect of a request by each party for a direction of a verdict 
 in his favor clothed the court with the functions of the jury, 
 and it is well settled that in such a case where the party whose 
 request is denied does not thereupon request to go to the jury 
 on the facts, a verdict directed for the other party stands. 
 
508 CODE PLEADING AND PRACTICE 
 
 as would the finding of a jury, for the same party, in the ab- 
 sence of any direction, and the review in this court is governed 
 by the same rules as apply in cases of ordinary verdicts ren- 
 dered without any direction." Thompson v. Simpson, 128 
 N. Y. 270. See also Adams v. Roscoe Co., 159 N. Y. 176; 
 Westervelt v. Phelps, 171 N. Y. 218. 
 
 Q. The plaintiff in an action puts in his evidence, and by 
 stipulation of the defendant's attorney leaves the state, having 
 some important business to attend to. The defendant then 
 puts in evidence certain statements made by the plaintiff, 
 which the plaintiff alone could deny. The defendant's attor- 
 ney had given no warning to plaintiff of his intention to intro- 
 duce such evidence. If you were the plaintiff's attorney, what 
 would you do? 
 
 A. Plaintiff's attorney should object to the admission of 
 the evidence, and if his objection is overruled, and judgment 
 is given against his client, he should make a motion for a new 
 trial on the ground of surprise, which by reason of the stipula- 
 tion of the defendant ought to be granted. A motion can also 
 be made to withdraw a juror. "A party is not entitled to a 
 new trial on the ground of surprise, because the opposite party 
 and his counsel on the trial led him to beUeve that certain 
 facts material to the defense would be admitted or not dis- 
 puted, and by reason thereof, he did not introduce evidence 
 upon such facts, so long as the conduct of the opposite party 
 and his counsel in the matter is free from fraud or positive 
 stipulation it forms no ground for a new trial although it might 
 have misled." Taylor v. Harlow, 11 How. Pr. 285. See also 
 Madison v. White, 25 Hun, 492. 
 
 Q. Upon the trial of an action in which you are one of the 
 attorneys, you discover that a material witness through whom 
 you expect to establish your case is absent from the state. 
 What motion would you make? 
 
 A. A motion to withdraw a juror on the ground of surprise, 
 
CODE PLEADING AND PRACTICE 509 
 
 and then have a mistrial ordered. Dillon v. Cockroft, 90 N. 
 Y. 649. 
 
 Q. A brings an action for goods sold and delivered against B. 
 B's attorney in his answer pleads payment as his only defense. 
 At the trial both A's attorney and B's attorney demand the 
 right to open and close the case to the jury. The court sus- 
 tains A's claim. B's attorney excepts and appeals from the 
 judgment. This was the only exception he had in the case. 
 How should the appellate court decide on appeal? 
 
 A. The judgment should be reversed. The defendant hav- 
 ing only pleaded an affirmative defense in his answer, ad- 
 mitted the allegations in plaintiff's complaint setting forth 
 the cause of action, therefore the burden of proof was upon him, 
 the defendant. The plaintiff was not required to offer any 
 evidence to estabUsh his cause of action, as it was admitted. 
 Therefore plaintiff had no right to open and close the case, but 
 the right belonged to the defendant, because he who afiirms 
 must produce the proof to sustain his affirmation. It was 
 therefore for the defendant to estabfish the defense set up, 
 and as he thus held the affirmative, he had the right to open 
 and close the evidence, and to deny him this right was reversi- 
 ble error. Fleischman v. Stern, 90 N. Y. 110; Conselyea v. 
 Swift, 103 N. Y. 606; Merzbach v. Mayor, 163 N. Y. 16. "A 
 party holding the affirmative upon an issue of fact, has the 
 right upon the trial to open and close the proof in summing 
 up the case to the jury; such right is regarded as a legal right, 
 not resting in the discretion of the court, and a denial thereof 
 may be excepted to and the ruling reviewed upon appeal." 
 Heilbronn v. Herzog, 165 N. Y. 98. 
 
 Q. Your chent sues an infant and alleges 12,000 damages. 
 The summons was served on the infant, and he defaults. De- 
 scribe the procedure necessary to get judgment. 
 
 A. The first thing to be done is to secure the appointment 
 of a guardian ad litem for the infant, care being taken not to 
 name the guardian to be appointed in the application, as 
 
510 CODE PLEADING AND PRACTICE 
 
 Rule 49 of the General Rules of Practice provides, that no 
 person shall be appointed guardian ad litem of an infant, who 
 is nominated by the adverse party. After the expiration of 
 twenty days from the appointment of the guardian ad litem, 
 proceedings may be taken for the entry of judgment by de- 
 fault. Section 1218 of the Code provides that: "A judgment 
 by default shall not be taken against an infant defendant, until 
 twenty days have expired, since the appointment of a guardian 
 ad litem for him." See generally as to infants sees. 468 to 477 
 of the Code. 
 
 Q. A, an infant, is the holder of a promissory note for $1,000 
 dated January 2, 1908, payable three months after date, made 
 by B, payable to A's order. The note not being paid at ma- 
 turity, A comes to you to sue thereon. Draw the complaint. 
 
 A. Supreme Court, 
 Kings County. 
 
 A, an infant, by John Brown, 
 his guardian ad litem, Plain- 
 
 m, 
 
 against 
 
 B, Defendant. 
 
 The plaintiff, by Joseph Story, his attorney, complaining of 
 the defendant herein alleges: 
 
 1. That the plaintiff is an infant under the age of twenty-one 
 years. 
 
 2. That on the 10th day of May, 1908, at Brooklyn, New 
 York, the above named John Brown was, by an order of this 
 court, duly appointed the guardian ad litem of the plaintiff 
 for the purposes of this action. 
 
 3. That the defendant made, executed and delivered his 
 certain promissory note in writing, dated the 2d day of Jan- 
 uary, 1908, at Brookljm, New York, and thereby promised 
 to pay to the order of the plaintiff, $1,000 three months after 
 date. 
 
CODE PLEADING AND PRACTICE 511 
 
 4. That no part of said note has been paid although duly 
 demanded. 
 
 Wherefore, plaintiff demands judgment against defendant for 
 the. sum of $1,000, with interest thereon from April 3d, 1908, 
 together with the costs and disbursements of this action. 
 Joseph Story, Plaintiff's Attorney. 
 Office and Post-Office Address, 50 Wall Street, 
 
 New York City. 
 
 The complaint of an infant must allege with certainty the 
 time, place, and power of the appointment of his guardian. 
 
 Q. Draw an affidavit of service of a summons upon an 
 infant defendant, over the age of fourteen years, in an 
 action in the Supreme Court; the infant resides with his 
 father. 
 
 A. State of New York, 1 
 
 City and County of New York, J 
 John Brown being duly sworn, deposes and says, that he is more 
 than twenty-one years of age, and that on the 10th day of May, 
 1908, at 254 W. 125th Street, in the Borough of Manhattan, 
 City of New York, he served the annexed summons on Thomas 
 Jones, the defendant therein named, who is an infant over the 
 age of fourteen years, by delivering to him a copy thereof and 
 leaving the same with him, and also at the same place and time 
 by personally delivering a copy thereof to John Jones, his father, 
 and leaving the same with him. Deponent further states that 
 he knew said Thomas Jones so served as aforesaid, to be the 
 person mentioned and described in said summons as the de- 
 fendant therein, and the said John Jones to be the father of 
 the said Thomas Jones. 
 
 John Brown. 
 Sworn to before me this 
 12th day of May, 1908. 
 Richard Gray, 
 Notary Public, 
 New York County. 
 
512 CODE PLEADING AND PRACTICE 
 
 Section 426 of the Code as amended by L. 1913, c. 279, 
 governs the service of the summons upon infant defendants 
 and is in part as follows: "Personal service of the summons 
 upon a defendant, being a natural person, must be made by 
 delivering a copy thereof, within the state as follows: 1. If 
 the defendant is an infant under the age of fourteen years, to 
 his father, mother or guardian; or if there is none within the 
 state, to the person having the care and control of him, or 
 with whom he. resides, or in whose service he is employed. 
 If the defendant is an infant over the age of fourteen years, 
 to the infant in person, and also to his father, mother or guard- 
 ian; or, if there is none within the state, to the person having 
 the care and control of him, or with whom he resides, or in 
 whose services he is employed. Where the defendant is an 
 infant under the age of fourteen years, the Court shall in the 
 defendant's interest, make an order, requiring a copy of the 
 summons, to be also delivered, in behalf of the defendant, to a 
 person designated in the order, and that service of the sum- 
 mons shall not be deemed complete until it is so deUvered. 
 Where the defendant is an infant over the age of fourteen 
 years a similar order may be made by the court in its dis- 
 cretion, with or without application therefor." 
 
 Q. A, an infant, through his attorney prosecuted the trial 
 of an action, and when it is about to go to the jury asks leave, 
 by way of motion, to have a guardian ad Utem, nunc pro tunc, 
 appointed. The court grants the motion, and the defendant 
 excepts. Judgment is given to the infant, and the defendant 
 appeals on the sole ground that the court had no right to permit 
 the appointment of the guardian after the case had begun. 
 Who wins and why? 
 
 A. Judgment for A; the appeal should be dismissed. This 
 was a mere irregularity and the court had power to allow the 
 amendment. "The omission to appoint a guardian ad litem 
 for an infant plaintiff before the bringing of an action, is not 
 a jurisdictional defect, but is an irregularity merely." Rima 
 V. Iron Works, 120 N. Y. 433; Callahan v. R. R., 99 App. 
 Div. 59. 
 
CODE PLEADING AND PRACTICE 513 
 
 Q. A brings an action against B to recover damages for 
 personal injuries inflicted. B defaults. How will A proceed 
 to fix the damages and obtain judgment? What rights, if any, 
 has B in such proceeding? 
 
 A. The damages must be assessed, by means of a writ of 
 inquiry, which is a writ directed to the sheriff's jury command- 
 ing them to fix the damages. The plaintiff cannot enter up 
 judgment by default as a matter of course in actions for per- 
 sonal injuries, but must use this method to have the damages 
 ascertained, and then he can enter judgment for the amount 
 fixed. See sees. 1214 and 1215 of the Code. On such a pro- 
 ceeding before a sheriff's jury, the defendant may call witnesses 
 and prove any matter which properly goes to mitigate the 
 damages. But of course he cannot attack the plaintiff's cause 
 of action Thompson v. Lumley, 7 Daly, 74. Section 536 of 
 the Code. "The rule that on an assessment of damages either 
 a,t the circuit or before a sheriff's jury, a defendant may call 
 and examine witnesses, or otherwise prove all proper miti- 
 gatiijg circumstances, seems to be well settled." Duffis v. 
 Bangs, 61 Hun, 23. 
 
 Q. How many peremptory challenges are allowed in a civil 
 action in the supreme court? How many in an inferior court? 
 
 A. Section 1176 of the Code provides for peremptory chal- 
 lenges in a civil action as follows: "Upon the trial of an issue 
 of fact, joined in a civil action in a court of record, each party 
 may peremptorily challenge not more than six, and in a court 
 not of record each party may peremptorily challenge not more 
 than three of the persons drawn as jurors for the trial." 
 
 Q. What would you allege in denying corporate existence? 
 
 A. Section 1776 of the Code covers this question, and is as 
 follows: "In an action brought by or against a corporation, 
 the plaintiff need not prove, upon the trial, the existence of 
 the corporation, unless the answer is verified and contains an 
 affirmative allegation that the plaintiff, or the defendant, as 
 the case may be, is not a corporation." 
 33 
 
614 CODE PLEADING AND PEACTICE 
 
 Q. A is assaulted and injured by B, and has a cause of action 
 therefor. A assigns the cause of action to C, who brings suit 
 upon it. Can he maintain the action? 
 
 A. No. This being a personal action is not assignable, there- 
 fore C cannot maintain the action, according to sec. 41, Pers. 
 Prop. Law (formerly sec. 1910 of the Code) which in part is 
 as follows: "Any claim or demand can be transferred, except 
 in one of the following cases: 1. Where it is to recover damages 
 for a personal injury, or for a breach of promise to marry. 
 2. Where it is founded upon a grant, which is made void by a 
 statute of the state; or upon a claim to or interest in real prop- 
 erty, a grant of which, by the transferer, would be void by 
 such a statute. 3. Wliere a transfer thereof is expressly for- 
 bidden by a statute of the State, or of the United States, or 
 would contravene public policy." 
 
 Q. A and B commit a joint assault and battery upon C. 
 C sues A without any allegation in the complaint as to B. A 
 demurs on the ground that B should be a party. Should the 
 demurrer be sustained? 
 
 A. No. Joint tort feasors are jointly and severally liable. 
 "Where a personal injury results from the negUgence or the 
 willful misconduct of several tort feasors, they are separately 
 as weU as jointly liable; the party injured may sue all or either 
 of the wrongdoers." Creed v. Hartman, 29 N. Y, 591 ; Stroher 
 V. Elting, 97 N. Y. 102; Matter of Peck, 206 N. Y. 55. 
 
 Q. A and B, two minors, assault C, who claims $1,000 dam- 
 ages from each. A's father pays C $500, which C accepts in 
 full settlement against A, and gives a written general release 
 without reservation of any kind. Subsequently C brings action 
 against B to recover $1,000 damages for the assault. Has B 
 any defense to the action? Give your reasons. 
 
 A. B has a perfect defense to the action, as satisfaction to 
 one joint tort feasor is a satisfaction to all. "The rule is, that 
 a party receiving an injury from the wrongful acts of others, is 
 
CODE PLEADING AND PBACTICE 515 
 
 entitled to but one satisfaction, and that an accord and satis- 
 faction by or a release or other discharge by the voluntary act 
 of the party injured, of one of two or more joint tort feasors, 
 is a discharge of all." Barrett v. R. R., 45 N. Y. 628. 
 
 (Note.) While it is true that a release under seal, of a claim, given to one 
 joint feasor operates as a release of all, on the theory that a party is entitled 
 to but one satisfaction for the injuries sustained by him (Barrett v. R. R., 
 supra), yet where the release contains an express reservation of the right to 
 sue the other tort feasors, it is not a release, but in effect is a covenant not 
 to sue the person released, and a covenant not to sue does not release a joint 
 tort feasor. The release must be construed according to the clear intention 
 of the parties and where it contains a reservation, the other tort feasors are 
 not discharged. Kirby v. Taylor, 6 Johns. Ch. 250; Irvine v. Milbank, 56 
 N. Y. 635; Gilbert v. Finch, 173 N. Y. 455; Walsh v. R. R., 204 N. Y. 58. 
 
 Q. A is injured through the negligence of B and C. He brings 
 suit against B, and recovers judgment, and issues execution; 
 but as B is financially irresponsible, the execution is returned 
 wholly unsatisfied. A then brings suit against C, who sets up 
 the judgment which A had obtained against B as a defense. 
 Judgment for whom and why? 
 
 A. Judgment for A. "The fact that the plaintiff recovered 
 judgment against the Brewing Company, it not appearing that 
 the judgment thus recovered had been actually paid or satisfied, 
 did not debar the plaintiff from appealing from the judgment 
 in favor of the Railroad Company, as a judgment recovered 
 against one of two joint wrongdoers is, until paid or satisfied, 
 no bar to the prosecution of an action for the same cause against 
 the other wrongdoer." Hurley v. Brewmg Co., 13 App. Div. 
 167. 
 
 Q. A and B, minors, together assault C. A's father settles 
 with C for A for $100. C assigns his rights against B to D, who 
 brings suit against B, your client. State how many and what 
 defenses you would set up. 
 
 A. There are two defenses here. 1. A personal action cannot 
 be assigned. Pulver v. Harris, 52 N. Y. 73; sec. 41, Pers. Prop. 
 Law (formerly sec. 1910 of the Code). 2. Satisfaction by one 
 
516 CODE PLEADING AND PRACTICE 
 
 of two tort feasors is a satisfaction for all. Barrett v. R. R., 
 supra; Alexander v. Alexander, 104 N. Y. 643. 
 
 Q. A sues B and C in an action for assault and battery com- 
 mitted by the two jointly. On recovering judgment, he issues 
 execution and recovers the whole amount of B. What right, 
 if any, has B against C? State the general rule. 
 
 A. B has no rights whatever against C, as there is no con- 
 tribution between tort feasors. "In actions for joint torts a 
 joint liability exists and a recovery may be enforced against 
 any one of the defendants. The party paying such claim has 
 no right to contribution from the other defendants, even though 
 by the payment he has relieved them from Uability. The 
 principle upon which these decisions are made, is that when- 
 ever the liability arises ex delicto, there is no contribution." 
 Andrews v. Murray, 33 Barb. 354; Miller v. Fenton, 11 Paige, 
 18; Jones v. Barlow, 62 N. Y. 211. 
 
 Q. A salesgirl finds a pocketbook containing $100 in the 
 department store where she is employed, and turns it over to 
 the firm. B and C both claim the money and demand the 
 same. B brings action against the firm to recover the money. 
 If you were the attorney for the firm, what would you do? 
 
 A. The money should be paid into court, after application, 
 on notice to B and C, has been made, for an order substituting 
 C, who has not brought suit, as the defendant in the action in 
 place of the firm and to relieve the firm from liability. The 
 order is termed an order of interpleader, and the practice is 
 governed by sec. 820 of the Code, which is as follows: "A 
 defendant against whom an action to recover upon a contract, 
 or an action of ejectment, or an action to recover a chattel, is 
 pending, may, at any time before answer, upon proof, by 
 affidavit, that a person, not a party to the action, makes a 
 demand against him for the same debt or property, without 
 collusion with him, apply to the court, upon notice to that 
 person and the adverse party, for an order to substitute that 
 
CODE PLEADING AND PRACTICE 517 
 
 person in his place, and to discharge him from habiUty to 
 either, on his paying into court the amount of the debt, or 
 deUvering the possession of the property, or its value, to such 
 person as the court directs; or upon it appearing that the 
 defendant disputes, in whole or in part, the liability asserted 
 against him by different claimants, or that he has some interest 
 in the subject-matter of the controversy which he desires to 
 assert, his application may be for an order joining the other 
 claimant or claimants as codefendants with him in the action. 
 The court may, in its discretion, make such order, upon such 
 terms as to costs and payments into court of the amount of 
 the debt, or part thereof, or delivery of the possession of the 
 property, or its value or part thereof, as may be just, and 
 thereupon the entire controversy may be determined in the 
 action." 
 
 Q. What are the qualifications of trial jurors in New York 
 County? 
 
 A. Section 598 of the Judiciary Law (Consolidated Laws, 
 chap. 30) provides as follows: "In order to be qualified to serve, 
 as a trial juror, in a court in the county of New York, a person 
 must be: L A male citizen of the United States, and a resident 
 of that county. 2. Not less than twenty-one, nor more than 
 seventy years of age. 3. The owner, in his own right, of real or 
 personal property, of the value of two hundred and fifty dollars; 
 or the husband of a woman who is the owner, in her own right, 
 of real or personal property of that value. 4. In the possession 
 of his natural faculties, and not infirm or decrepit. 5. Free 
 from all legal exceptions; intelligent; of sound mind and good 
 character; and able to read and write the English language 
 understandingly . ' ' 
 
 (Note.) In the county of Kings, the same qualifications exist as in the 
 county of New York, except that he must be: "The owner, in his own right, 
 of real property of the value of one hundred and fifty dollars, or of personal 
 property of the value of two hundred and fifty dollars; or the husband of a 
 woman who is the owner, in her own right, of real or personal property of 
 that value." Section 686 of Judiciary Law. 
 
518 CODE PLEADING AND PRACTICE 
 
 Q. What are the quaUfications of trial jurors in counties 
 other than New York and Kings? 
 
 A. Section 502 of the Judiciary Law (ConsoUdated Laws, 
 chap. 30) provides as follows: In order to be qualified to serve 
 as a trial juror, in a court of record, a person must be: 1. A male 
 citizen of the United States, and a resident of the county. 2. 
 Not less than twenty-one nor more than seventy years of age. 
 3. Assessed, for personal property, belonging to him, in his 
 own right, to the amount of two hundred and fifty dollars; or 
 the owner of a freehold estate in real property, situated in the 
 county, belonging to him in his own right, of the value of one 
 hundred and fifty dollars; or the husband of a woman who is 
 the owner of a like freehold estate, belonging to her, in her own 
 right; except that in the county of Queens and Richmond a 
 person, to be qualified to serve as such a trial juror, shall possess 
 the property qualifications specified in subdivision three of 
 section six hundred and eighty-six of this chapter. 4. In the pos- 
 session of his natural faculties, and not infirm or decrepit. 5. 
 Free from all legal exceptions; of fair character; of approved 
 integrity; of sound judgment; and well informed. But a person 
 who was assessed, on the last assessment-roll of the town, for 
 land in his possession, held under a contract for the purchase 
 thereof, upon which improvements, owned by him, have been 
 made, to the value of one hundred and fifty dollars, is qualified 
 to serve as a trial juror, although he does not possess either of 
 the qualifications, specified in subdivision third of this section, 
 if he is qualified in every other respect." 
 
 Q. You have an important witness residing in the state of 
 Indiana, whose evidence you desire on the trial of an action in 
 your county. How would you procure the evidence? 
 
 A. The evidence would be procured by the issuing of a 
 commission, addressed to a person in the city in which the 
 witness resides, authorizing him to take the witness's testimony, 
 by putting to him the questions which are sent with the com- 
 mission. The defendant may also send cross-questions cor- 
 
CODE PLEADING AND PRACTICE 519 
 
 responding to the cross-exanaination on a trial. Section 887 of 
 the Code provides as follows : " In a case specified in the next sec- 
 tion, where it appears, by affidavit, on the application of either 
 party, that the testimony of one or more witnesses, not with- 
 in the state, is material to the applicant, a commission may 
 be issued, to one or more competent persons named therein, 
 authorizing them, or any one of them, to examine the witness 
 or witnesses named therein, under oath, the interrogatories 
 annexed to the commission; to take and certify the deposition 
 of each witness, and to return the same, and the commission 
 according to the directions given in or with the commission. 
 The applicant, or any other party to the action, may be thus 
 examined." See on depositions generally, sees. 887 to 913, in- 
 clusive. 
 
 Q. A brings an action against B, serving a verified complaint, 
 B serves a verified answer. A, believing that the facts stated 
 in the answer are false, makes a motion to strike out the answer 
 as a sham. Should his motion be granted? 
 
 A. No. ' ' A verified answer cannot be stricken out as a sham. 
 If the answer is good in form, and sets up apparently a good 
 defense, the court wUl not try the issue raised by the answer, 
 on affidavits, where the answer is verified. It is the duty of 
 the trial court to determine whether the defense is true or 
 false." Wayland v. Tyson, 45 N. Y. 281; Ginnell v. Stayner, 
 71 App. Div. 542; Duke v. Grant, 126 App. Div. 385. An 
 unverified answer may sometimes be stricken out as sham. 
 In order, however, that the pleadings should be stricken out as 
 sham, it must be false in the sense of being a mere pretense set 
 up in bad faith, and without color of fact. Bishop's Code Pr., 
 pp. 197, 198. See also sec. 538 of the Code. Thompson v. R. 
 R., 45 N. Y. 468. 
 
 Q. A sues B. B interposes an answer which is bad upon its 
 face. What would you do if you were A's attorney? 
 
 A. Plaintiff's attorney should apply for judgment on the 
 answer, on the ground that it is frivolous. An answer is 
 
520 CODE PLEADING AND PRACTICE 
 
 frivolous when it contains no general or special denial, and 
 sets up no defense by way of new matter, and does not con- 
 tain a counterclaim. It must be so clear and palpably bad 
 as to require no argument to demonstrate its frivolity, and as 
 to be pronounced frivolous, and indicative of bad faith in the 
 pleader, upon a bare inspection. The pleading will be sus- 
 tained if a material issue is presented. The pleading is not 
 stricken out, but whatever action may be had in respect to it, 
 it remains a part of the record and is added to the judgment 
 roll. Judgment is taken upon it. Cook v. Warren, 88 N. Y. 
 39; Rochkind v. Perlman, 123 App. Div. 808; Gibbs v. Title 
 G. & T. Co., 79 Misc. 249; Bishop's Code Pr., p. 195 (sec. 
 537 of the Code of Civ. Pro.). 
 
 Q. A, on his return from Europe, finds a judgment by de- 
 fault entered against him on an affidavit of personal service of 
 the summons and complaint. In fact there was no personal 
 service. A does nothing for more than a year, and then comes 
 to you. What would you advise him, and what would you do, 
 if anything? 
 
 A. The judgment can be vacated, even though more than a 
 year has elapsed, as it was fraudulently obtained. "The power 
 of the supreme court to control its judgments, and to set aside 
 on motion a judgment, for fraud and deceit practiced by a 
 party, is not subject to the limitations of time prescribed in 
 sees. 724, 1282 and 1290 of the Code. Cases of fraud are not 
 within these sections." Furman v. Furman, 153 N. Y. 309. 
 
 (Note.) Section 724 of the Code provides as follows: "The court may 
 likewise, in its discretion, and upon such terms as justice requires, at any 
 time within one year after notice thereof, relieve a party from a judgment, 
 order, or other proceeding, taken against him through his mistake, inadver- 
 tence, surprise, or excusable neglect; and may supply an omission in any 
 proceeding. Where a proceeding, taken by a party, fails to conform to a 
 provision of this act, the court may, in like manner, and upon like terms, 
 permit an amendment thereof, to conform it to the provision." 
 
 Q. The property of A, a nonresident, was attached. He 
 was served by publication. Judgment was entered for the 
 creditor, and execution was issued and the property attached 
 
CODE PLEADING AND PRACTICE 521 
 
 was sold. There was a deficiency. The creditor issued an exe- 
 cution against the property that was not attached, and satisfied 
 his deficiency judgment therefrom. A sues for conversion. Who 
 prevails? 
 
 ■ A. A prevails. The second levy was illegal, because when 
 the summons is served otherwise than personally on a non- 
 resident, the judgment is substantially one in rem, and only 
 the attached property is bound. Section 707 provides as fol- 
 lows: "Where a defendant, who has not appeared, is a nonresi- 
 dent of the state, or a foreign corporation, and the summons 
 was served without the state, or by pubhcation, pursuant to an 
 order obtained for that purpose, as prescribed in chapter fifth 
 of this act, the judgment can be enforced only against the 
 property which has been levied upon, by virtue of the warrant 
 of attachment, at the time when the judgment is entered. But 
 this section does not declare the effect of such a judgment, with 
 respect to the application of any statute of limitation." Sec- 
 tion 1370 of the Code provides as follows: "Where a warrant 
 of attachment, issued in the action, has been levied by the 
 sheriff, the execution must substantially require the sheriff to 
 satisfy the judgment, as follows: 1. Where the judgment debtor 
 is a nonresident or a foreign corporation, and the summons was 
 served upon him or it, without the state, or otherwise than 
 personally, pursuant to an order obtained for that purpose, as 
 prescribed in chapter fifth of this act, and the judgment debtor 
 has not appeared in the action; out of the personal property 
 attached, and, if that is insufficient, out of the real property 
 attached. 2. In any other case, out of the personal property 
 attached; and, if that is insufficient, out of the other personal 
 property of the judgment debtor; if both are insufficient, out 
 of the real property attached; and, if that is insufficient, out 
 of the real property, belonging to him, at the time when the 
 judgment was docketed in the clerk's office of the county, or 
 at any time thereafter." 
 
 Q. A, who is a nonresident of New York State, was indebted 
 to B, who resides in New York City, in the sum of $4,000. 
 
522 CODE PLEADING AND PRACTICE 
 
 Three automobiles belonging to A, were in the freight depot, 
 New York City, having been consigned to C, a dealer, by A. 
 B brings action to recover his claim against A, attaching only 
 two of the automobiles, the other one being on a freight car 
 in another part of the freight depot, and was thus overlooked by 
 the sheriff. The summons had been served on A by publica- 
 tion, but A appeared and defended the action. At the trial 
 B recovered judgment for the full amount of his claim. He 
 then issued execution and the sheriff levied upon and sold all 
 three of the automobiles, but left the execution partly unsatis- 
 fied. A forbids the sale of the automobile not attached, and 
 sues the sheriff in conversion. Who should have judgment? 
 
 A. Judgment should be given for the sheriff, as he was au- 
 thorized to sell any or all of the property, which he found in his 
 county, irrespective of whether he had attached it or not, as 
 the judgment was a personal judgment having been made so 
 by the general appearance of A in the action. The court 
 thereby acquired jurisdiction of the person of A. The notice of 
 appearance by A's attorney was equivalent to a personal serv- 
 ice of the summons upon A, and gave the court jurisdiction 
 over A's person, so that it could render a personal judgment 
 against him. Section 424 of the Code. Reed v. Chilson, 142 
 N. Y. 152; Grant v. C. Co., 117 App. Div. 576; Tiemey v. 
 Insurance Co., 138 App. Div. 471. 
 
 Q. The sheriff, under an execution of a judgment, attached 
 some sewing machines as the property of B. C makes claim 
 to the machines as his property. What should the sheriff do 
 to ascertain the validity of C's claim? 
 
 A. The sheriff should empanel a jury to try the validity of 
 C's claim. This is provided for in sec. 657 of the Code as fol- 
 lows: "If goods or effects, other than a vessel attached as the 
 property of the defendant, are claimed by or in behalf of another 
 person, as his property, an affidavit may be made and delivered 
 to the sheriff, in behalf of such person, at any time while such 
 goods or effects or the proceeds thereof are in the sheriff's pos- 
 
CODE PLEADING AND PRACTICE 523 
 
 session, stating that he makes such a claim; specifying in whole 
 or in part the property to which it relates, and in all cases 
 stating the value of the property claimed and the damages, if 
 any, over and above such value, which the claimant will suffer 
 in case such levy is not released. In that case the sheriff may, 
 in his discretion, empanel a jury to try the validity of the claim." 
 
 Q. There are two executions against the property of A, a 
 judgment debtor, issued out of the Supreme Court of New 
 York County, and delivered to the sheriff of New York County, 
 where A lives for collection. One execution was in favor of C, 
 for $1,500 and was delivered to the sheriff on May 1st, and 
 the other in favor of B, for $1,500, was delivered on May 2d. 
 The sheriff did not levy under C's execution, but levied under 
 B's, on A's property worth $1,500. Both creditors claimed 
 the preference in payment from the proceeds. What are the 
 rights of the parties? 
 
 A. C should receive the entire amount, as his execution 
 was the first delivered to the sheriff. The property was bound 
 by the execution from the time of the delivery thereof to the 
 sheriff to be executed. The execution first delivered has prefer- 
 ence in payment, even though a levy is first made under an 
 execution subsequently delivered. Sections 1405 and 1406 of 
 the Code provide for this as follows: "The goods and chattels 
 of a judgment debtor, not exempt, by express provision of law 
 from levy and sale by virtue of an execution, and his other 
 personal property, which is expressly declared by law to be 
 subject to levy by virtue of an execution, are when situated 
 within the jurisdiction of the officer, to whom an execution 
 against property is deUvered, bound by the execution, from 
 the time of the delivery thereof to the proper officer, to be 
 executed; but not before. Where two or more executions 
 against property are issued, out of the same or different courts 
 of record, against the same judgment debtor, the one first 
 deUvered, to an officer, to be executed, has preference, not- 
 withstanding that a levy is first made, by virtue of an execu- 
 tion subsequently delivered; but if a levy upon and sale of 
 
524 CODE PLEADING AND PRACTICE 
 
 personal property has been made, by virtue of the junior execu- 
 tion, before an actual levy, by virtue of the senior execution, 
 the same property shall not be levied upon or sold, by virtue 
 of the latter." 
 
 Q. A sheriff levies upon $200 in gold and $50 in silver under 
 an execution. Your client is the judgment creditor, and asks 
 the sheriff to immediately deliver the money to him. The 
 sheriff refuses. What are the rights of the parties? 
 
 A. He can compel the sheriff to deliver to him the silver 
 coin, but not the gold coin, as the latter must be sold according 
 to sec. 1410 of the Code, which is as follows: "The officer to 
 whom an execution against property is delivered, must levy 
 upon current money of the United States, belonging to the 
 judgment debtor; and must pay it over, as so much money 
 collected, without exposing it for sale, except that where it 
 consists of gold coin, he must sell it, like other personal prop- 
 erty; unless he is otherwise directed, by an order of a judge 
 or by the judgment in the particular cause." 
 
 Q. On January 2, 1906, A duly recovered and docketed a 
 judgment against B for $1,000. On February, 1906, C re- 
 covered and duly docketed a judgment against B for $2,000. 
 Both were unpaid and unsatisfied on March 1, 1906, when 
 B's father died intestate, seized of an estate of real property, 
 to which estate B succeeded as the only heir at law. A and C 
 issued executions, and the land is sold under both executions 
 for $900. How is it distributed? 
 
 A. The money realized from the sale should be distributed 
 in proportion to the amount of the judgments. Neither is 
 entitled to the whole amount, to the exclusion of the other. 
 "Under sec. 1251 of the Code, docketed judgments become 
 hens simultaneously, and without priority between them, 
 upon real property subsequently acquired by the judgment 
 debtor during ten years from the filing of the judgment roll, 
 at the time of his acquisition of the property. Hence where 
 there are several judgments docketed against the judgment 
 
CODE PLEADING AND PRACTICE 525 
 
 debtor at the time he acquires property, the judgment first 
 docketed is not a prior lien on such after-acquired property, 
 but all the judgments are entitled to rank equally." Matter 
 of Hazard, 73 Hun, 22, aff'd 141 N. Y. 586. 
 
 Q. On May 1st, 1905, A duly docketed a judgment in the 
 office of the clerk of New York County, against B for $2,000, 
 and issued execution thereon on June 1st, 1906, which was 
 returned unsatisfied. Can A issue an execution on the judg- 
 ment in 1914, B still being a resident of New York County? 
 Assuming that he had not issued execution, what would be 
 necessary for him to do now? 
 
 A. A can issue the execution, of course, the first execution 
 having been returned unsatisfied. If he had not issued any 
 execution, it would have been necessary for him to apply to 
 the court for an order granting him leave to issue the execution. 
 This is provided for in sees. 1375, 1377, and 1378 of the Code. 
 Section 1375 reads as follows: "Except as otherwise specially 
 prescribed by law, the party recovering a final judgment, or 
 his assignee, may have execution thereupon, of course, at 
 any time within five years after the entry of judgment." Sec- 
 tion 1377 reads: "After the lapse of five years from the entry 
 of a final judgment, execution can be issued thereupon, in one 
 of the following cases only: 1. Where an execution was issued 
 thereupon, within five years after the entry of the judgment, 
 and has been returned wholly or partly unsatisfied or un- 
 executed. 2. Where an order is made by the court, granting 
 leave to issue the execution." Section 1378 provides that: 
 "Notice of an application for an order, granting leave to issue 
 an execution, as prescribed in the last section, must be served 
 personally upon the adverse party, if he is a resident of the 
 state, and personal service can, with reasonable diUgence, be 
 made upon him therein; otherwise, notice must be given in 
 such manner as the court directs. Where the judgment is 
 for a sum of money, or directs the payment of a sum of money, 
 leave shall not be granted, except on proof by affidavit, to 
 the satisfaction of the court, that the judgment remains wholly 
 or partly unsatisfied." 
 
526 CODE PLEADING AND PRACTICE 
 
 Q. On August 1, 1897, A recovered judgment against B for 
 $1,000, but issued no execution. On September 15, 1908, 
 without further action, A issues execution to the sheriff, and 
 the latter sells the real estate owned by B, August 1, 1897, to 
 C. C desires to sell to your client. Is the title good? What 
 would you have done if you were A's attorney? 
 
 A. The title is not good. Before execution was issued, a 
 notice should have been filed in the county clerk's ofl&ce, de- 
 scribing the judgment, the execution and the property levied 
 upon, according to sec. 1252 of the Code, which is as follows: 
 "When ten years after filing the judgment roll have expired, 
 real property or a chattel real, which the judgment debtor, 
 or real property which a person, deriving his right or title 
 thereto, as the heir or devisee of the judgment debtor, then has, 
 in any county, may be levied upon, by virtue of an execution, 
 against property, issued to the sheriff of that county, upon a 
 judgment hereafter rendered, by filing, with the clerk of that 
 county, a notice, subscribed by the sheriff, describing the 
 judgment, the execution, and the property levied upon; and, 
 if the interest levied upon is that of an heir or devisee, specify- 
 ing that fact, and the name of the heir or devisee. The notice 
 must be recorded and indexed by the clerk, as a notice of the 
 pendency of an action. For that purpose, the judgment debtor, 
 or his heir, or devisee, named in the notice, is regarded as a 
 party to an action. The judgment binds, and becomes a 
 charge upon, the right and title thus levied upon, of the judg- 
 ment debtor, or of his heir or devisee, as the case may be, 
 only from the time of recording and indexing the notice, and 
 until the execution is set aside, or returned." 
 
 Q. A recovered and docketed a judgment against B. While 
 the judgment was in force, B pm-chased a piece of real estate 
 from C, taking the title thereto in his own name. At the same 
 time, and as a part of the transaction, B gave a mortgage 
 thereon to C, to secure a part of the purchase price. A issues 
 an execution, and claims that his judgment takes precedence 
 over C's mortgage. What are the rights of the parties? State 
 the rule. 
 
CODE PLEADING AND PXlACTICE 527 
 
 A. The purchase money mortgage has priority, according to 
 sec. 1254 of the Code, which is as follows: "Where real prop- 
 erty is sold and conveyed, and at the same time, a mortgage 
 thereupon is given by the purchasers, to secure the payment of 
 the whole or a part of the purchase money, the lien of the 
 mortgage, upon that real property, is superior to the lien of a 
 previous judgment against the purchasers." 
 
 Q. A was indebted to B in the sum of $2,000. He transfers 
 to his wife valuable real estate mft^^ud of his creditors. B then 
 recovers judgment against A, ^o upon discovering the above 
 facts comes to you for advice. What would you advise are his 
 rights? 
 
 A. JS should issue execution upon his judgment, and when 
 the execution is returned unsatisfied, he may maintain a judg- 
 ment creditor's action to have the transfer set aside, according 
 to sec. 1871 of the Code, which is as follows: "When an exe- 
 cution against the property of a judgment debtor, issued out 
 of a court of record, as prescribed in the next section, has been 
 returned wholly or partially unsatisfied, the judgment creditor 
 may maintain an action against the judgment debtor, and any 
 other person, to compel the discovery of anything in action, 
 or other property belonging to the judgment debtor, and of 
 any money, thing in action, or other property due to him, or 
 held in trust for him; to prevent the transfer thereof, or the 
 payment or delivery thereof, to him, or to any other person; 
 and to procure satisfaction of the plaintiff's demand, as pre- 
 scribed in the next section but one." Section 1873 provides: 
 "The final judgment in the action must direct and provide 
 for the satisfaction of the sum due the plaintiff, out of any 
 money, thing in action, or other personal property, belonging 
 to, or due to the judgment debtor, or held in trust for him, 
 which is discovered in the action; whether the same might or 
 might not have been originally taken." See sees. 1874 to 
 1879, inclusive. 
 
 Q. A recovers judgment against B by default, taking an 
 inquest. B thereafter learned that the judgment was pro- 
 
528 CODE PLEADING AND PEACTICE 
 
 cured by the false testimony of witnesses on the inquest. A 
 brings an action, by way of a creditor's bill to reach certain 
 property of B's in aid of his judgment. B alleges the perjured 
 testimony as a defense to this action. A demurs to the de- 
 fense. Judgment for whom and why? 
 
 A. A's demurrer should be sustained. "It is no defense to a 
 creditor's bill seeking to reach property in aid of a judgment, 
 to allege that upon an inquest on which plaintiff's judgment 
 was obtained, the Witnesses testified falsely respecting the 
 value of the goods which were the subject of the action." 
 Gitler v. Russian Co., 124 App. Div. 273. 
 
 (Note.) "While equity will sometimes intervene to set aside a judgment 
 obtained by fraud or unfair practices, it will not do so where the only fraud 
 alleged is that it was procured by perjured testimony, or for any' matter 
 which was actually presented or considered in the judgment assailed. The 
 only frauds for which a judgment can be set aside in an independent action, 
 are those which are extrinsic or collateral to the matter tried by the first 
 court, and not a fraud in the matter on which the decree was rendered." 
 Mayor, etc., of N. Y. v. Brady, 115 N. Y. 599. 
 
 Q. A received a plurality of votes cast for county clerk, but 
 the board of county canvassers issued a certificate of election 
 to his opponent. A comes to you for advice before his opponent 
 takes office. What are his rights, and what proceedings would 
 you take to enforce them? 
 
 A. He can obtain a writ of certiorari to review the action 
 of the board imder sees. 2120 et seq. of the Code, or he may 
 pursue the remedy prescribed in sec. 433 of the Election Law 
 (Consolidated Laws, chap. 17) and correct the error of the board 
 by a writ of mandamus. Section 433 of the Election Law pro- 
 vides in part as follows: "The Supreme Court may, upon affi- 
 davit presented by any voter, showing that errors have oc- 
 curred in any statement or determination made by the state 
 board of canvassers, or by any board of county canvassers, 
 or that any such board has failed to act in conformity to law, 
 make an order requiring such board to correct such errors, or 
 perform its duty in the manner prescribed by law, or show 
 
CODE PLEADING AND PRACTICE 529 
 
 cause why such correction should not be made or such duty- 
 performed. If such board shall fail or neglect to make such 
 correction, or perform such duty, or show cause as aforesaid, 
 the court may compel such board, by writ of mandamus, to 
 correct such errors or perform such duty; and if it shall 
 have made its determination and dissolved, to reconvene for 
 the purpose of making such corrections or performing such 
 duty; ... A special proceeding authorized by this section 
 must be commenced within four months after the statement 
 or determination in which it is claimed that errors have oc- 
 curred was made, or within four months after it was the duty 
 of the board to act in the particular or particulars as to which 
 it is claimed to have failed to perform its duty." See Matter 
 of Hart, 159 N. Y. 278. 
 
 Q. A was legally elected to the office of sheriff of his county. 
 B claimed that he was elected, and has taken possession of and 
 is administering the office. A says that he is bound to oust the 
 usurper and obtain possession. How will A enforce his rights, 
 and how are the issues triable? 
 
 A. A can have an action brought by the attorney-general 
 on A's relation to oust the usurper under sec. 1948 of the Code, 
 which in part is as follows: "The attorney-general may main- 
 tain an action, upon his own information, or upon the complaint 
 of a private person, in either of the following cases: 1. Against 
 a person who usurps, intrudes into, or imlawfully holds or 
 exercises within the state, a franchise, or a public office, civil 
 or military, or an office in a domestic corporation." The issues 
 in such an action are triable as a matter of right by jury. Sec- 
 tions 1949, 1950 of the Code. The title to public office can 
 only be determined by this form of action, and by no other. 
 People V. Goetting, 133 N. Y. 569; People v. Brush, 146 N. Y. 
 60. No action by a taxpayer under Gen. Municipal Law can 
 be maintained. Jewell v. Mohr, 136 N. Y. Suppl. 273. 
 
 (Note.) "In certain cases, an action in equity may be maintained, where 
 one person is actually in office and exercising the powers thereof, to restrain 
 another from interfering with the acting official, until the title to the position 
 34 
 
630 CODE PLEADING AND PRACTICE 
 
 can be legally tested, in an action under sec. 1948 of the Code, to prevent 
 unseemly contests out of court of rival claimants to the same place." Seneca 
 Nation v. Jimeson, 62 Misc. 91. 
 
 Q. What is the difference between a writ of certiorari and a 
 writ of mandamus? 
 
 A. "The office of a mandamus is to set a ministerial or ad- 
 ministrative officer in motion, and to compel him to act, while 
 a writ of certiorari may be resorted to, to review the legality 
 of his act, and if found illegal to set aside or reverse it. The 
 judgment of an officer, court or body charged with judicial 
 functions cannot be coerced by mandamus. The most that can 
 be accomplished by that writ is to compel such officer, court or 
 body to act, leaving the decision to the free exercise of the 
 tribunal charged with the duty of deciding, and reserving to 
 the party affected, the right to review the decision, by cer- 
 tiorari or appeal." People ex rel. Woodward v. Rosendale, 
 76 Hun, 103; aff'd 142 N. Y. 126; People ex rel. Lundgren v. 
 McGuire, 151 App. Div. 416. 
 
 Q. What are the different kinds of mandamus, and define 
 each? 
 
 A. "A writ of mandamus is either alternative or peremptory. 
 The alternative writ may be granted upon an affidavit, or 
 other written proof, showing a proper case therefor. Previous 
 notice of the appUcation must be given to a judge of the court, 
 or to the corporation board, or other body, officer, or other 
 person to which or to whom it is directed." Section 2067 of 
 the Code. "A peremptory writ of mandamus may be issued 
 in the first instance, where the applicant's right to the manda- 
 mus depends only upon questions of law, and notice of the 
 application had been given to a judge of the court, or to the 
 corporation, board, or other body, officer, or other person, to 
 which or to whom it is directed. . . . Except as prescribed in 
 this section, or by special provision of law, a peremptory 
 mandamus cannot be issued, until an alternative mandamus 
 
CODE PLEADING AND PilACTlCE 531 
 
 has been issued and duly served, and the return day thereof 
 has elapsed." Section 2070 of the Code. 
 
 Q. Your client was a member of a mutual benefit association. 
 He was expelled from it by proceedings which were not in 
 accord with the laws of the society. What remedy would you 
 pursue to reinstate him in the society? 
 
 A. The remedy is by writ of mandamus. "The expulsion 
 was illegal, and he was entitled to a peremptory writ of man- 
 damus for his reinstatement. The relator was not required to 
 exhaust the means provided in the by-laws for reinstatement 
 before resorting to a mandamus; that these provisions relate 
 to causes of expulsion supported by proceedings lawfully con- 
 ducted, and where the appeal is to the discretionary power of 
 the society," People ex rel. v. M. M. P. Union, 118 N. Y. 101. 
 
 Q. In a criminal proceeding, the criminal escaped after 
 trial and pending an appeal. After his escape, his attorney 
 presents to the trial court his case and exceptions for settlement 
 on the appeal. The judge refuses to settle the case, and the 
 attorney applies for a writ of mandamus to compel him to do 
 so. The criminal was not recaptured. What are the prisoner's 
 rights, and will a writ of mandamus lie? 
 
 A. A writ of mandamus will not lie, as the prisoner has no 
 rights before the court. "It is essential to any step on behalf 
 of a person charged with a felony, after indictment foimd, that 
 he should be in custody, either actual, by being confined in 
 jail, or constructive, by being let to bail. An escaped prisoner 
 can take no action before the court." People v. Genet, 59 
 N. Y. 80; Matter of O'Byrne, 55 Hun, 438, aff'd 121 N. Y. 675. 
 
 Q. What is a writ of certiorari and when can it be used? 
 
 A. A writ of certiorari is issued to review the determination 
 of a body or officer. It Ues only when no appeal from the 
 decision can be taken to a higher court. Section 2120 of the 
 Code provides tha,t the writ can be issued in one of the following 
 
532 CODE PLEADING AND PRACTICE 
 
 cases only: 1. Where the right to the writ is expressly con- 
 ferred, or the issue thereof is expressly authorized, by a statute. 
 2. Where the writ may be issued at common law, by a court of 
 general jurisdiction, and the right to the writ or the power of 
 the court to issue it, is not expressly taken away by a statute. 
 Section 2121 provides that: "A writ of certiorari cannot be 
 issued, to review a determination, made, after this article takes 
 effect, in a civil action or special proceeding, by a court of 
 record, or a judge of a court of record." Section 2122 provides 
 as follows: "Except as otherwise expressly prescribed by a 
 statute, a writ of certiorari cannot be issued in either of the 
 following cases: 1. To review a determination, which does not 
 finally determine the rights of the parties, with respect to 
 the matter to be reviewed. 2. Where the determination can 
 be adequately reviewed, by an appeal to a court, or to some 
 other body or officer. 3. Where the body or officer, making the 
 determination, is expressly authorized, by statute, to rehear 
 the matter, upon the relator's appUcation; unless the determina- 
 tion to be reviewed was made upon a rehearing, or the time 
 within which the relator can procure a rehearing has elapsed." 
 
 Q. Your client has made complaint to the proper authorities 
 of the obstruction of the street, and they have ignored his 
 complaint. What remedy would you pursue? 
 
 A. Apply for a writ of mandamus. A citizen has the right 
 to ask for a mandamus to enforce a public right. People ex 
 rel. V. Keating, 168 N. Y. 390. 
 
 Q. A, who resides in the city of Rochester, is a material 
 witness in an action being tried in the Supreme Court, New York 
 County. B has certain books which are essential to prove 
 certain matters. State what you would do in order to get 
 A and B to testify. 
 
 A. Show the original subpoena to the witness and deliver to 
 him a copy of the same and also pay him fifty cents and eight 
 cents for each mile going to the place of attendance. A sub- 
 
CODE PLEADING AND PRACTICE 533 
 
 poena duces tecum should be served on B, and the fees as above 
 stated should be tendered, and the said subpoena should state 
 the book or books required and which B should bring. See 
 sections 852, 867 and 3318 of the Code. 
 
 Q. You find one of your most important witnesses locked 
 up in jail and it is absolutely necessary that you have him as a 
 witness. State how you would proceed. 
 
 A. Procure a writ of habeas corpus to testify, according to 
 sec. 2008 of the Code, which is as follows: "A court of record, 
 other than a justice's court of a city, or a judge of such a court, 
 or a justice of the Supreme Court, has power, upon the appUca- 
 tion of a party to an action or special proceeding, civil or crim- 
 inal, pending therein, to issue a writ of habeas corpus, for the 
 purpose of bringing before the court, a prisoner detained in a 
 jail or prison, within the state, to testify as a witness in the 
 action or special proceeding, in behalf of the appUcant." On 
 habeas corpus generally, see sees. 2008 to 2014, inclusive. 
 
 (Note.) Section 2015 provides that "A person imprisoned or restrained in 
 his liberty, within the state, for any cause, or upon any pretense, is entitled, 
 except in one of the cases specified in the next section, to a writ of habeas 
 corpus or a writ of certiorari, as prescribed in this article, for the purpose of 
 inquiring into the cause of the imprisonment or restraint, and, in a ease 
 prescribed by law, of delivering him therefrom. A writ of habeas corpus 
 may be issued and served under this section, on the first day of the week, 
 commonly called Sunday; but it cannot be made returnable on that day." 
 
 Q. A, who is named as co-respondent in an action for divorce, 
 comes to you and wants you to protect his good name, claiming 
 that he is innocent. What would you do? 
 
 A. If the co-respondent has not been served with a copy of 
 the summons and complaint, then he has the right to appear 
 in person or by attorney, and demand a copy of the summons 
 and complaint, which must be served by plaintiff's attorney 
 within ten days thereafter, and he may appear to defend such 
 action in so far as the issues affect such co-respondent. Sec- 
 tion 1757 of the Code of Civ. Pro. provides for this. 
 
■^)34 CODE PLEADTNG AND PRACTICE 
 
 Q. Draw an affidavit of the service of tfie summons in a 
 divorce action. 
 
 ss. 
 
 A. State of New York, 
 
 City and County of New York, 
 John Brown being duly sworn deposes and says that he is 
 twenty-one years of age, and that on the 15th day of March, 
 1908, at Number 250 Fifth Avenue, in the city of New York, 
 he personally served the annexed summons on May Smith, the 
 defendant herein named, by delivering a copy to her personally, 
 and leaving the same with her, and that he knew the person 
 so served to be the person mentioned and described in said 
 sunamons as defendant. 
 
 The summons so served on the defendant, as aforesaid, had 
 at the time of such service, the words "action for a divorce" 
 legibly written upon the face thereof. 
 
 That deponent knows said May Smith to be the said de- 
 fendant and the proper person to be served with said summons, 
 as he has known the said defendant for the past five years and 
 often visited the said defendant at Number 250 Fifth Avenue, 
 where she lived with her husband, the plaintiff in this action. 
 
 John Brown. 
 Sworn to before me this 
 15th day of March, 1908. 
 Richard Gray, 
 Notary Public, 
 New York County. 
 
 Q. In an action between A and B, the jury delivered a 
 sealed verdict for the plaintiff, and failed to specify any amount. 
 The plaintiff's attorney made a motion to have the amount 
 sued for, entered in the judgment. The amount sued for was 
 the only amount plaintiff would be entitled to recover, either 
 that or nothing. The court granted the motion. Defendant 
 appeals. Who wins? 
 
 A. Plaintiff. The court has the power on motion, to amend 
 a verdict by putting in the amount, where the jury rendered 
 
CODE PLEADING AND PBACTICE 535 
 
 a verdict for the plaintiff. Dalrymple v. Williams, 63 N. Y. 
 361; Hodgkins v. Mead, 119 N. Y. 166; Wirt v. Reid, 138 
 App. Div. 761. "There can be no question, that where a ver- 
 dict as recorded, does not correctly embody the finding of 
 the jury, the trial court has power, after due notice to all 
 parties affected by the verdict, and the judgment to be entered 
 thereon, to order a correction of the verdict so as to conform 
 with the actual finding of the jury." Band v. Bindseil, 78 Misc. 
 161. 
 
 Q. A brings an action against B. The jury brings in a ver- 
 dict for A. One hour thereafter B dies. Against whom should 
 you enter judgment? 
 
 A. Judgment should be entered in the names of the original 
 parties, that is, A against B. Section 763 of the Code provides 
 for this, and is as follows: "If either party to an action dies, 
 after an accepted offer to allow judgment to be taken, or after 
 a verdict, report, or decision, or an interlocutory judgment, 
 but before final judgment is entered, the court must enter 
 final judgment, in the names of the Original parties; unless the 
 offer, verdict, report, or decision, or the interlocutory judg- 
 ment, is set aside." 
 
 Q. A brings an action against the Inter. City R. T. Co., to 
 recover damages for personal injuries sustained by defendant's 
 negligence, alleging in his complaint permanent injuries. The 
 R. R. Co., in its answer, denies the negUgence, and also denies 
 that it has any knowledge of the nature or extent of A's in- 
 juries. The attorneys for the R. R. Co., before the trial, on 
 affidavits setting forth the facts, make a motion for an order 
 requiring A to submit to a physical examination as to the 
 injuries alleged to have been sustained, by a physician. A's 
 attorney on the argument of the motion claims that the court 
 has no power to grant such an order. What should be the 
 decision of the court? 
 
 A. The order should be granted. The power to grant such 
 orders is expressly given by sec. 873 of the Code which in part 
 
536 CODE PLEADING AND PRACTICE 
 
 is as follows: "In every action to recover damages for per- 
 sonal injuries, the court or judge, in granting an order for the 
 examination of the plaintiff before trial may, if the defendant 
 apply therefor, direct that the plaintiff subnait to a physical 
 examination by one or more physicians or surgeons, to be 
 designated by the court or judge, and such examination shall 
 be had and made under such restrictions and directions as to 
 the court or judge shall seem proper. In any action brought 
 to recover damages for personal injuries, where the defendant 
 shall present to the court or judge satisfactory evidence that he 
 is ignorant of the nature and extent of the injuries coinplained 
 of, the court or judge shall order that such physical examina- 
 tion be made; and if the party to be examined shall be a female 
 she shall be entitled to have such examination before physicians 
 or surgeons of her own sex." 
 
 Q. A did all the carpenter work for the X Club, an unincor- 
 porated association, composed of about fifty members. The 
 club has not paid A for his work, and he comes to you. How 
 and against whom would you sue? 
 
 A. Bring an action against the president or treasurer of the 
 club; if judgment is obtained, it must be satisfied out of the 
 property belonging to the association. This is provided for 
 by sees. 1919 et seq of the Code. 
 
 Q. You are requested to begin an action by the service of a 
 summons only, to recover a penalty given by statute. Draw 
 the summons in proper form to be served on the defendant. 
 
 A. The summons is in the usual form provided for by sec. 
 418 of the Code (see form on first page of this chapter) ex- 
 cept that the summons must be indorsed with a reference 
 to the statute. This is provided for in sec. 1897 of the Code 
 as follows : " In an action to recover a penalty or forfeiture, given 
 by a statute, if a copy of the complaint is not delivered to 
 the defendant with a copy of the summons, a general reference 
 to the statute must be indorsed upon the copy of the summons 
 
CODE PLEADING AND PEACTICB 537 
 
 SO delivered, in the following form: "According to the pro- 
 visions of," etc.; adding such a description of the statute, 
 as will identify it with convenient certainty, and also specify- 
 ing the section, if penalties or forfeitures are given, in different 
 sections thereof, for different acts or omissions." 
 
 Q. A is induced to deal with B to his damage, by means of 
 B's false representation. He brings suit on contract for dam- 
 ages, but afterwards discontinues the action and sues in fraud 
 and deceit. B interposes a demurrer to the second suit. Judg- 
 ment for whom and why? 
 
 A, Judgment for B. A, having with knowledge of the fraud, 
 brought an action on contract, thereby elected to affirm the 
 contract, and he could not thereafter repudiate it and sue in 
 tort. He is bound by his election of remedies. Where one 
 has two remedies, and he elects to pursue one, he cannot there- 
 after follow the other. "Where a party takes legal steps to 
 enforce a contract, this is a conclusive election not to rescind 
 on account of anything then known to him." Conrow v. 
 Little, 115 N. Y. 387. The doctrine is well settled that where 
 there exists an election between inconsistent remedies the 
 party is confined to the remedy which he first prefers and 
 adopts. By bringing one action he waives his right to bring 
 the other. Morris v. Rexford, 18 N. Y. 552; Strong v. Strong, 
 102 N. Y. 69; Fowler v. Bowery Savings Bank, 113 N. Y. 450. 
 
 Q. A brings an action against B for conversion of property. 
 Judgment against A on the ground that it was a sale. Can A 
 thereafter maintain an action for the value of the property? 
 
 A. Yes. "The institution by a party of a fruitless action, 
 which he has not the right to maintain, will not preclude him 
 from asserting the right he really possesses. Defendants, by 
 their contention, succeeded in establishing that there was an 
 absolute sale, and that therefore plaintiff had mistaken his 
 remedy, and they cannot now set up the judgment which they 
 then obtained, to prevent the plaintiff from recovering the 
 
538 CODE PLEADING AND PRACTICE 
 
 purchase price of the property, which they formerly urged 
 and estabUshed was sold to them by him, and which it is con- 
 ceded they have not paid for, and thus not only retain the 
 property but also the purchase price. Plaintiff here did not 
 make an election of remedies; he simply made a mistake as to 
 what his remedy was. There must be two remedies from which 
 to elect. It is not enough that he supposed that he had two 
 remedies, he must have them in fact." McNutt v. Hilkins, 
 80 Hun, 235. 
 
 Q. A wrongfully took and converted to his own use, the 
 horse of B valued at $100. B sues A on contract for goods 
 sold and delivered. The above facts were shown on the trial, 
 and the defendant moved for a dismissal. Ruling and reasons, 
 
 A. Judgment for B. "The owner of personal property 
 which has been wrongfully converted by another, may, al- 
 though the property is retained by the wrongdoer, waive the 
 tort, and sue for and recover its value as upon an implied con- 
 tract of sale." Terry v. Hunger, 121 N. Y. 161. 
 
 Q. A and B wrongfully take a carriage belonging to C. C 
 brings an action on an impUed contract to recover its value. 
 He recovers judgment and issues execution, but the same is 
 returned unsatisfied. He then discovers that the carriage is in 
 the possession of D, having been bought from B. He brings 
 an action of replevin against D. Judgment for whom and why? 
 
 A. Judgment for D. By bringing an action on contract, 
 C elected to treat the transaction as a sale, and the title thereby 
 passed to the wrongdoers; therefore the wrongdoers could 
 pass a good title, and C must therefore fail in his action of 
 replevin against D. Terry v. Hunger, supra; Wise v. Grant, 
 140 N. Y. 593. 
 
 Q. A disobeyed an injunction order which was granted erro- 
 neously. He is brought up for contempt proceedings. Can he 
 be punished for disobeying the injunction order? 
 
CODE PLEADING AND PRACTICE 539 
 
 A. Yes. "A party who disobeys an injunction, although 
 erroneous, is guilty of contempt. It must be void upon its 
 face for utter lack of jurisdiction, to entitle a party to disobey 
 an injunction." People ex rel. Kauffman v. VanBuren, 136 
 N. Y. 252. 
 
 Q. A justice of the peace is about to take certain action be- 
 yond his jurisdiction, which will be prejudicial to your client. 
 You desire to prevent the action being taken. What proceed- 
 ings would you take? 
 
 A. Apply for a writ of prohibition. This writ is used to 
 arrest judicial action. It is a writ directed to some inferior 
 court restraining an abuse of jurisdiction. "A writ of pro- 
 hibition is to prevent the exercise by a tribunal possessing 
 judicial powers, of jurisdiction over matters not within its 
 cognizance or exceeding its jurisdiction in matters of which 
 it has cognizance. It will not lie to restrain a ministerial act. 
 Ex parte Brandlacht, 2 Hill, 367; People v. Supervisors of 
 Queens, 1 Hill, 195. It is a proper remedy when the inferior 
 court either entertains a proceeding in which it has no jurisdic- 
 tion, or when having jurisdiction, it assumes to exercise an 
 unauthorized power." Allen, J., in Thompson v. Tracy, 60 
 N. Y. 31. 
 
 (Note.) "Where there is a remedy by appeal or otherwise to correct an 
 error of law or practice, a writ of prohibition does not lie. In such case the 
 inferior court or tribunal of limited jurisdiction can be set right only by ap- 
 peal. Where, however, a statute imposes restrictions as to the circumstances 
 in which an inferior court or judge thereof may act in matters otherwise 
 within its jurisdiction, and these restrictions are disregarded, the party 
 aggrieved may, in the discretion of the court, be entitled to a writ of prohibi- 
 tion." People ex rel. v. Special Term, 145 App. Div. 530. See also generally 
 sees. 2091 and 2094 of the Code. People ex rel. v. Nichols, 79 N. Y. 582; 
 People ex rel. Hummel v. Trial Term, 184 N. Y. 30. 
 
 Q. A's complaint, in an action against a Railroad Company, 
 set forth two independent causes of action which were sep- 
 arately pleaded. The company in its answer joined issue in 
 both causes of action. At the trial the judge directed the 
 
540 CODE PLEADING AND PRACTICE 
 
 jury to find a verdict for the Railroad Company, on the first 
 count. The jury found a verdict for A, on the second count, 
 for sixty dollars. Who should be awarded costs? 
 
 A. Each party had "recovered" and was therefore entitled 
 to costs as against the other under sec. 3234 of the Code, and 
 it was so held in Browning v. R. R. Co., 64 Hun, 513. Section 
 3234 of the Code provides in part as follows : " In an action, . . . 
 wherein the complaint sets forth separately two or more causes 
 of action, upon which issues of fact are joined, if the plaintiff 
 recovers upon one or more of the issues, and the defendant 
 upon the other, or others, each party is entitled to costs against 
 the adverse party, unless it is certified that the substantial 
 cause of action was the same upon each issue; in which case, 
 the plaintiff only is entitled to costs. Costs, to which a party 
 is so entitled, must be included in the final judgment, by add- 
 ing them to, or offsetting them against, the sum awarded to 
 the prevailing party; or otherwise, as the case requires." See 
 generally as to costs sees. 3228 et seq. 
 
CHAPTER XXI 
 
 Evidence 
 
 Q. What is meant by the terai of "burden of proof"? A 
 makes a contract for work, labor and services. Upon B's fail- 
 ure to pay, A brings suit against him. B answers denying any 
 contract. Upon whom does the burden of proof rest? Who 
 has the right to open and close? If B had answered admitting 
 the contract but pleading payment, who would have the bur- 
 den? 
 
 A. The term "burden of proof" is used in two senses, one 
 as denoting the burden of establishing a given proposition, the 
 other as denoting the burden of going forward in support of a 
 given proposition. By the first is meant the duty of establish- 
 ing one's case. The usual test given as to who has this duty 
 or burden is, that it rests upon the party against whom judg- 
 ment would be given if no evidence were offered by either side. 
 In the first question put, the burden of establishing is upon A, 
 he affirming that there is a contract, and B denying the same. 
 The burden of establishing, and the right to open and close are 
 coincident with each other. In the second case, B having ad- 
 mitted that there is a contract, and setting up payment, an 
 affirmative defense, there is no issue as to the contract, and 
 hence B has the burden of establishing payment, it being the 
 only question in controversy. The burden of establishing 
 never shifts, although the burden of going forward with evi- 
 dence shifts from side to side, according as the weight of evi- 
 dence preponderates. "Where the party having the burden 
 of proof establishes a prima facie case, and no proof to the 
 contrary is offered, he will prevail. Therefore the other party, 
 if he would avoid the effect of such prima facie case, must pro- 
 duce evidence of equal or greater weight to balance and con- 
 trol it, or he will fail. Still the proof on both sides applies to 
 
 541 
 
542 EVIDENCE 
 
 the affirmative or negative of one and the same issue or proposi- 
 tion of fact; and the party whose case requires the proof of 
 that fact has all along the burden of proof. It does not shift, 
 though the weight in either scale may at times preponderate. 
 But where the party having the burden of proof, gives compe- 
 tent and prima facie evidence of a fact, and the adverse party, 
 instead of producing proof which would go to negative the 
 same proposition of fact, proposes to show another and a dis- 
 tinct proposition which avoids the effect of it, then the burden 
 of proof shifts, and rests upon the party proposing to show the 
 latter fact." Powers v. Russell, 13 Pick. 69. See also Thayer's 
 Cases on Ev., note on Burden of Proof. 
 
 Q. A is on trial for murder. The judge in his charge to the 
 jury instructs them, that the people must establish their case 
 by a preponderance of evidence, and if they fail so to do, the 
 prisoner must be acquitted; that if the people establish the 
 killing by the defendant, he must show that it was justifiable 
 or excusable, or else be convicted of miirder. What do you 
 say to this charge? 
 
 A. The charge was clearly erroneous. While in civil cases, 
 the plaintiff need only establish his case by a preponderance of 
 evidence, yet in criminal cases, the duty is upon the people to 
 establish the guilt of the prisoner beyond a reasonable doubt. 
 There is no legal implication from the fact of the killing. The 
 burden of establishing rests upon the people throughout the 
 trial; it never shifts to the prisoner; his only duty throughout 
 is to raise a reasonable doubt. "The charge in this case ran 
 counter to these rules, and was calculated to impress upon the 
 jury a belief that proof of the homicide carried with it a legal 
 implication of crime which shifted the burden of proof upon the 
 prisoner, and required him to satisfy the jury, that the killing 
 was either justifiable or excusable at the peril of a conviction 
 if he should fail in his attempt. It is true, that while there is 
 no legal implication of the crime of murder from the bare fact 
 of a homicide, the jury may infer it as a fact, and may do so 
 even though no motive is assigned for the act, and the case is 
 
EVIDENCE 543 
 
 bare of circumstances of explanation. But the inference is 
 one of fact which the jury must draw, if such seems to be their 
 duty, and not one of law which the court may impose upon 
 their deliberations, and then upon that assumption, shift the 
 burden upon the prisoner and require him to prove that in 
 fact no crime has been committed." People v. Downs, 123 
 N. Y. 558; People v. Conrow, 97 N. Y. 77. 
 
 Q. A is on trial for murder. He interposes the defense of 
 insanity. The court instructs the jury that in order to acquit 
 the prisoner, the evidence offered on his part must satisfy 
 them that he was insane at the time of the killing; that he must 
 prove insanity by a preponderance of evidence. A is convicted. 
 He appeals on the ground that the charge was improper. Is 
 the appeal good? 
 
 A. Yes. The prisoner has no duty to establish any defense, 
 such as insanity by a preponderance. It is true, that he has 
 the burden of going forward with evidence of insanity, but not 
 the burden of establishing the same. It is never incumbent on 
 the prosecution to give aflfirmative evidence of sanity in a 
 particular case, yet the burden is upon it to establish beyond a 
 reasonable doubt that the crime was committed by a sane 
 person. After the prisoner has given evidence to show that 
 he was insane when the alleged crime was committed the 
 prosecution may produce evidence to show that he was sane, 
 and if the entire evidence does not satisfy the jury of the 
 prisoner's sanity beyond a reasonable doubt, he must be ac- 
 quitted. People V. McCann, 16 N. Y. 58; O'Connell v. People, 
 87 N. Y. 377; Walker v. People, 88 N. Y. 81; People v. Mino, 
 149 N. Y. 317. "When the defendant has given evidence to 
 show that at the time he committed the homicide he was in- 
 sane, the prosecution must prove his sanity at that time, not 
 only by a preponderance of evidence, but his sanity must be 
 proved beyond a reasonable doubt." People v. Egnor, 175 
 N. Y. 419. 
 
 Q. On the trial of A for murder he offers the plea of self- 
 defense. The judge instructs the jury that the prisoner must 
 
544 EVIDENCE 
 
 establish his plea by a preponderance of evidence. After A is 
 convicted, his counsel having excepted, appeals. What should 
 the decision be on appeal? 
 
 A. The judgment must be reversed as the charge was error. 
 The rule in criminal cases, that the defendant is entitled to the 
 benefit of a reasonable doubt, applies not only to the case as 
 made by the prosecution, but to any defense interposed. 
 People V. Riordan, 117 N. Y. 71. "The burden is upon the 
 prosecution throughout the trial to establish the crime charged 
 beyond a reasonable doubt, and if upon the whole case, includ- 
 ing the testimony on behalf of the prosecution and on behalf 
 of the defendant, a reasonable doubt of the defendant's guilt 
 arises, the jury must acquit. A defendant in a criminal case, 
 who interposes the plea of self-defense is not obUged to estab- 
 lish it by a preponderance of evidence." People v. Shanley, 
 49 App. Div. 56. 
 
 Q. A offers a will for probate. It is contested on the ground 
 of the insanity of the testator. On whom is the burden of es- 
 tablishing the sanity of the testator? On whom is the bm-den 
 of going forward with evidence on the question of sanity? 
 
 A. The burden of estabUshing that the will was the act of 
 a competent testator is upon the proponent. But as the law 
 presumes that everyone is of sound mind, he is relieved by this 
 presumption from going forward with evidence. The pro- 
 ponent need only prove the due formal execution of the will, 
 and then it is opened to the contestant to show incapacity, 
 and to the proponent to offer affirmative proof of mental 
 soundness in rebuttal. Taking the proceedings for probate as 
 a whole, the proponent must throughout see to it that the 
 preponderance of evidence is in favor of the presumption, and 
 such as will satisfy the court in assuming the requisite sound- 
 ness of mind. Dellafield v. Parish, 25 N. Y. 9; Tyler v. Gar- 
 diner, 35 N. Y. 559; Matter of Flansburgh, 82 Hun, 49. 
 
 Q. A was on trial for larceny, and offered testimony as to 
 his good character. The prosecuting attorney asked the court 
 
EVIDENCE 545 
 
 to charge the jury "that if it was satisfied that the testimony 
 in the case pointed conclusively to the guilt of the prisoner, 
 that the evidence of his previous good character would be of 
 no avaU." How should the court charge? Give reasons. 
 
 A. The court should refuse to charge as requested. Proof 
 of good character, will sometimes of itself create a doubt when 
 without it none would exist. People v. Elliott, 163 N. Y. 11; 
 People V. Bonier, 179 N. Y. 315; People v. Pekarz, 185 N. Y. 
 470. 
 
 Q. A leaves home in 1900, and is not heard of for more than 
 ten years. His property is claimed by both B and C. It be- 
 comes important for B to establish that A died in 1902. At 
 the trial of an action for the possession of A's property, B 
 offers evidence of A's unexplained absence and rests. C moves 
 for judgment. Judgment for whom and why? 
 
 A. Judgment for C. The rule is, that where a person goes 
 abroad and is not heard of for seven years, the law presumes 
 the fact that such person is dead, but not that he died at the 
 beginning or at the end of any particular period during those 
 seven years; that if it be important to anyone to establish the 
 precise time of such person's death, he must do so by evidence 
 of some sort to be laid before the court for that purpose, beyond 
 the mere lapse of seven years since such person was last heard 
 of. The presumption of law relates only to the fact of death, 
 and the time of death whenever it is material, must be the 
 subject of distinct proof. If no sufficient facts are shown from 
 which to draw a reasonable inference, that death occurred 
 before the lapse of seven years, the person will be accounted 
 in all legal proceedings as having lived during that period. 
 Eagle V. Enomett, 4 Bradf. (N. Y.) 117; Matter of Davenport, 
 37 Misc. 455. "The presumption of death applies as to an 
 unexplained and continued disappearance for more than seven 
 years the same as to an established departiu-e and absence un- 
 heard of by those, if any, likely to hear. The presumption of 
 death does not necessarily fix the exact time of death." Matter 
 35 
 
546 EVIDENCE 
 
 of Smith, 77 Misc. 76. " The general rule that an absentee, who 
 has not been heard of for seven years, may be presumed to be 
 dead at the expiration of the seven years for the purpose of 
 distributing an estate is well settled. (Jackson v. Claw, 18 
 Johns. 347; Matter of Sullivan, 51 Hun, 378; Barson v. Mulli- 
 gan, 191 N. Y. 324.) Circumstances may justify a finding of 
 death before, or they may be such as to give right to no pre- 
 sumption either at or after the expiration of seven years. Each 
 case must necessarily depend upon its own facts. When the 
 failure of the absentee to communicate with his friends is 
 satisfactorily accounted for on some other hypothesis than that 
 of death, or where no inquiry has been directed to the place 
 where he was last known to be, as in Dunn v. Travis, 56 App. 
 Div. 317, no presumption arises. Rights are not to be held 
 in abeyance indefinitely on account of the absence of a person 
 of whom no trace can be foimd. He may not be dead, but he 
 will be presumed to be dead for the purpose of fixing the rights 
 of those known to be living." Miller, J., in Matter of Wagner, 
 143 App. Div. 287. 
 
 Q. A, B and C, husband, wife and child, were stopping at 
 a certain hotel which was destroyed by fire. They all three 
 perished in the fiames. On the trial of an action, it becomes 
 material to prove that A, the husband, survived the others. 
 The attorney for one of the parties contends that the husband, 
 being the stronger, survived, and offers no evidence. Is this 
 contention valid? State your reasons. 
 
 A. No. There is no presumption of survivorship in this 
 state, either that anyone survived the other, or which one was 
 the survivor. "There is no legal presumption which courts 
 are authorized to act upon, that there was a sm-vivor, any 
 more than that there was a particular survivor. It is not 
 claimed that there is any legal presumption that they died 
 at the same time. Indeed it may be conceded, that it is un- 
 likely that they ceased to breathe precisely at the same instant, 
 and as a physical fact it may perhaps be inferred that they did 
 not. But this does not come up to the standard of proof. The 
 
EVIDENCE 547 
 
 rule is, that the law will indulge in no presumption on the 
 subject. It will not raise a presumption by balancing prob- 
 abilities, either that there was a survivor, or who it was. . . . 
 These expressions only mean that as the fact is incapable of 
 proof, the one upon whom the onus lies, fails, and persons thus 
 perishing must be deemed to have died at the same time for 
 the purpose of disposing of their property." Church, Ch. J., 
 hi Newell v. Nichols, 75 N. Y. 78. See also Dunn v. N. A. 
 Cas. Co., 141 App. Div. 479; St. John v. Andrews Inst., 191 
 N. Y. 276; Matter of Herrmann, 75 Misc. 601. 
 
 Q. In an action to recover damages for an assault committed 
 upon the plaintiff, the defendant requested the court to charge 
 the jury that he was presumed to be innocent until his guilt 
 was established by the plaintiff. The court refused to so charge, 
 and the defendant excepts. The jury found for the plaintiff, 
 and the defendant appeals on the ground of the judge's refusal 
 to charge as requested. What should the decision be on appeal? 
 
 A. The appeal should be dismissed, as there is no presump- 
 tion in civil cases; the presumption applies only to criminal 
 cases. "We are of opinion that the trial judge committed no 
 error in refusing to charge that the defendant is presumed in- 
 nocent until he is proven guilty. The presumption of inno- 
 cence is not indulged in a civil action, as the plaintiff rests 
 only under the burden of proving his case by a preponderance 
 of evidence. We deem it very important that the strict rule 
 of evidence applicable to the burden of proof in criminal cases, 
 should not be extended to civil actions for the recovery of 
 damages. When life or liberty is involved the proof must 
 exclude reasonable doubt, but in a civil action, where a recovery 
 of damages is sought against the wrongdoer, the plaintiff is 
 only required to sustain his case by a preponderance of evi- 
 dence." Bartlett, J., in Kurz v. Doerr, 180 N. Y. 89, 91, 92. 
 See also Wood v. Wyeth, 106 App. Div. 24; Johnson Co, v, 
 Maclemon, 142 App. Div. 679. 
 
 Q. A sues an insurance company. On the trial of the action, 
 the attorney for the company admits that B, who A claims 
 
548 EVIDENCE 
 
 signed his policy, was the agent of the company. A recovers 
 judgment, and the insurance company appeals. The judgment 
 is reversed and a new trial ordered. On the new trial, the in- 
 surance company is represented by another attorney, and he 
 objects to receiving the admission made on the first trial by 
 the previous attorney for the company. The court over- 
 rules the objection. Was the ruling correct? State your 
 reasons. 
 
 A. Yes. The admission was binding on the company 
 throughout the litigation. "A written stipulation with respect 
 to the facts in a case made by the parties or their attorneys for 
 the purpose of evidence, if it is general and not expressly 
 limited in respect to time, or confined in terms to some par- 
 ticular purpose or occaision, stands in the case for all purposes 
 until the litigation is ended, unless the court upon application 
 shall relieve either or both of the parties from its operation." 
 Clason V. Baldwin, 152 N. Y. 204; Cosverse v. Sickles, 16 App. 
 Div. 49, aff'd m 161 N. Y. 666; Fortunato v. Mayor, 74 App. 
 Div. 441, aff'd 173 N. Y. 608; Steumler v. Mayor, 179 N. Y. 
 482. "But when facts stipulated by the plaintiff at a former 
 trial solely for the accommodation of the defendant turn out 
 to be untrue or very doubtful, the court in equity should relieve 
 the plaintiff from the stipulation." Donovan v. Twist, 119 
 App. Div. 734. 
 
 (Note.) "In our law, the term 'admission' is usually applied to civil 
 transactions, and to those matters of fact in criminal cases which do not 
 involve criminal intent; the term 'confession' being generally restricted to 
 acknowledgment of guilt. . . . We shall first consider the person whose 
 admission may be received. And here the general doctrine is, that the dec- 
 larations of a party to the record, or of one identified in interest with him, 
 are, as against such party, admissible in evidence." Greenleaf on Evidence, 
 sees. 169, 171. 
 
 Q. A brings an action of trespass against B. On the trial 
 of the action, B offers in evidence an admission of C, a former 
 owner of the land, to the effect that B had certain rights therein, 
 which would defeat A's action. The evidence was objected to. 
 What should have been the ruling of the court? 
 
EVIDENCE 549 
 
 A. The evidence was admissible. Declarations of former 
 owners of real estate are admissible in evidence as against 
 subsequent grantees, on the ground of identity of interest. 
 Jackson v. Shearman, 6 Johns. 19; Chadwick v. Fonner, 69 
 N. Y. 404; Lyon v. Ricker, 141 N. Y. 225; N. Y. Water Co. v. 
 Crow, 110 App. Div. 32. 
 
 Q. A brought an action against B to recover the amount of a 
 promissory note made by B payable to C's order. On the trial, 
 certain declarations alleged to have been made by C while he 
 was the owner of the note, were offered in evidence. Objected 
 to. Should the objection be sustained? State your reasons. 
 
 A. Yes. The evidence is not admissible. In this state, 
 after some uncertainty as to the rule, it was decided in the 
 early case of Paige v. Cagwin, 7 Hill, 361, that such admissions 
 in controversies about personal property are not admissible. 
 But in controversies as to real property, the rule remains as 
 above stated. "It will be found, on an examination of most 
 of them, that they do not sustain the doctrine that the declara- 
 tions of a prior holder of a note, or vendor of a chattel, are 
 admissible in evidence as against a subsequent owner, who 
 acquired title for a valuable consideration. It may, I think, 
 be laid down as a general proposition, that the cases in which 
 such evidence has been held admissible, are those only where the 
 declarations were made by a party really in interest, or by one 
 through whom the plaintiff claimed as privy through represen- 
 tation, as in cases of bankruptcy, death and others of a similar 
 character. Where the rule is applicable, there must, it is con- 
 ceded, be an 'identity of interest' between the assignor and 
 assignee. That relation appears to me to be based on the fact, 
 that the rights of the assignor continue and are represented 
 by the assignee. Where a person becomes a purchaser of a 
 chose in action or a chattel for a valuable consideration, his 
 rights are independent of the assignor and beyond his control. 
 Although it may be necessary to found his title on a transfer, 
 yet the mere proof of such transfer is evidence of his right. 
 Personal property is frequently acquired by delivery merely. 
 
550 EVIDENCH 
 
 Possession alone is then prima facie evidence of title, and the 
 rights of the possessor do not necessarily depend on the title 
 of the person by whom the deUvery was made, or from whom 
 such possession was obtained." Lott, S., in Paige v. Cagwin, 
 7 Hill, 361, a leading case followed in Booth v. Swezy, 8 N. Y. 
 279; Tonsley v. Barry, 16 N. Y. 500; Foster v. Beals, 21 N. Y. 
 247; Flannery v. Van Tassell, 127 N. Y. 631. 
 
 Q. A, the assignee of a mortgage on real estate, brings an 
 action in foreclosure against B, the present owner of the prop- 
 erty. At the trial, B offers as evidence the declarations of A's 
 assignor (C) as to matters which would constitute a defense 
 to the action. Objection is made. What should be the ruling 
 of the court? 
 
 A. Objection should be sustained. "While an assignee for 
 value of a mortgage takes it subject to the equities existing 
 between the original parties, they must be established by com- 
 mon law evidence; and the declarations of the assignor made 
 prior to the assignment, are inadmissible against the assignee 
 to establish a defense to an action brought by him to foreclose 
 the mortgage." Merkle v. Beidleman, 165 N. Y. 21. 
 
 Q. When the will of A is offered for probate, it is contested 
 by B on the ground of undue influence. B offers evidence to 
 show that C, one of the legatees, made declarations to the 
 effect that he, C,. unduly influenced A in making the will. 
 This is objected to by the other legatees. What should be the 
 ruling of the court? Give reasons. 
 
 A. The evidence is inadmissible. A declaration or admission 
 made by one of several legatees is not competent as against 
 the other legatees in a proceeding to contest a will, unless it 
 appears that the several legatees were either jointly interested 
 or had conspired together. "It seems to me that the weight 
 of authority is against the admissibility of the declarations of 
 one party to affect the rights of another, unless such parties 
 be jointly interested, by which each party is authorized to 
 
EVIDENCE 551 
 
 speak and act for the whole, or there is proof of a combination, 
 in which case, a conspirator may speak for all his confederates. 
 But in the latter case, a conspirator, by his admissions or dec- 
 larations can only affect his coconspirators, and if his admis- 
 sions or declarations cannot but affect other parties not con- 
 federated, such admissions or declarations should be excluded. 
 This rule is based upon the most obvious principle of justice. 
 Is there any good reason to be suggested why the rights of one 
 party should be affected by the irresponsible admissions of 
 another party with whom he chances to be associated as such, 
 but upon whom he has conferred no authority to speak for him? 
 Such a principle would enable a party to deprive another of 
 his legal rights without that other being able either to disprove 
 the admission, or by cross-examination to test their truth. 
 It is true that the admissions of a party adverse to his in- 
 terest are held admissible, because of the improbabiUty of a 
 person admitting a fact contrary to his interest, unless such 
 admission be true, and there seems to be a propriety in holding 
 such a party bound by his own admission, but when the interest 
 of another party intervenes, that other party has the right to 
 insist that they shall not be divested, except by ordinary proof 
 attested by the sanction of an oath, by his own voluntary 
 admissions." Calvin, S., in La Bau v. Vanderbilt, 3 Redf. 
 (N. Y.) 384. See also Matter of Baird, 47 Hun, 78; Naul v. 
 Naul, 75 App. Div. 294; Matter of Kennedy, 167 N. Y. 163; 
 Matter of Myer, 184 N. Y. 54. 
 
 Q. Father and son are standing together when plaintiff sells 
 his goods. Nothing is said at the time of the responsibility 
 of either. Plaintiff sues the father, and attempts to show that: 
 1. The son is irresponsible. 2. Father has paid debts of this 
 kind for the son. Can he show either or both? 
 
 A, He cannot show either. " In an action where the question 
 at issue was whether credit was given to the defendant or his 
 son, evidence on the part of the plaintiff of the pecuniary in- 
 ability of the son was received under objection. Held error, 
 that no fair interference could be drawn that defendant re- 
 
552 EVIDENCE 
 
 ceived the credit because he happened to have the most prop- 
 erty. So also the reception of evidence that defendant had paid 
 debts of other persons against his son held error, as the facts of 
 such payments were no evidence of a promise to pay other 
 debts," Green v. Disbrow, 56 N. Y. 334. See also Duryea 
 V. Vosburgh, 121 N. Y. 57; McLoghlin v. Bank, 139 N. Y. 514; 
 Trombley v. Seligman, 191 N. Y. 402. 
 
 Q. A and B, adjoining owners, were damaged by C's negli- 
 gence in allowing the cinders of a furnace to escape and burn 
 their timber. Both A and B claimed that C's negligence was 
 the cause of their injury, and demanded damages against him. 
 C compromised with A for $200, without a lawsuit, and offered 
 a settlement to B, but thereafter refused to do so. B thereupon 
 brought action against C, basing his claim on the aforesaid 
 negligence, which C denied. On the trial B offered to prove 
 C's settlement with A and the offer of settlement with him, 
 as an admission of his (C's) liability. C objects to the evidence. 
 What should be the decision of the court and why? 
 
 A, The evidence should be excluded. "The first was in 
 violation of the familiar rule that negotiations or propositions 
 looking to the settlement of a controversy without action 
 cannot be given in evidence as admissions of liabiUty. The rule 
 is well founded in reason. The law is willing to encourage the 
 compromise and settlement of controversies without litigation, 
 and holds communications looking to that end as privileged in 
 their character, and not to be used to the prejudice of the party 
 making them. It is true that the privilege does not extend to 
 the admission of a disputed fact, even though made in the 
 course of such negotiations; but this does not detract from the 
 force of the rule. The principle is that an offer or consent, 
 or expression of willingness to settle, is not to be taken as an 
 admission of liability, and is, therefore, not evidence of the 
 fact. The testimony objected to was within the rule. There 
 was in it no admission of any fact in controversy, but only the 
 expression of a desire that the matter might be settled. The 
 same rule should, a fortiori, have excluded the testimony ob- 
 
EVIDENCE 553 
 
 jected to, of the fact of a settlement without litigation, of the 
 claim of another neighbor for damage done by the same fire. 
 What motives or considerations may have influenced the de- 
 fendant to make that settlement does not appear. The fact 
 that he did settle with a third person was not to be taken as an 
 admission of his liability, for the same reason that his proposi- 
 tion to settle with the plaintiff was not to have that effect." 
 Slingerland v. Norton, 58 Hun, 579. See also Tennant v. 
 Dudley, 144 N. Y. 504. 
 
 Q. On the trial of an action which A brought against B to 
 recover an indebtedness for services rendered, the following 
 letter is offered in evidence by his attorney. The letter was 
 written some time after the commencement of the action. 
 
 The letter follows: To A Yours of the 14th inst. to hand 
 
 and contents noted. To save cost and stop further litigation 
 we are willing to send you our check for $50 in full liquidation 
 of your claim. Signed B. B's attorney objects to the admission 
 of the letter in evidence. How should the court rule? 
 
 A. The objection must be sustained because the letter does 
 not contain an admission of a fact, but rather an offer of com- 
 promise, made for the purpose of procuring a settlement of a 
 pending controversy, and hence is not competent. Laurence 
 V. Hopkins, 13 Johns. 288 j Warner v. Richmond, 3 Denio, 58; 
 Smith V. Satterlee, 130 N. Y. 677. 
 
 Q. A sues B and C for a tort committed by them. At the 
 trial, he offers in evidence an admission of B. C objects to 
 its reception in evidence. What should be the ruling of the 
 court? State your reasons. 
 
 A. The objection should be sustained, as the admissions of 
 one joint tort feasor cannot be used against the other. The 
 law does not recognize a sufficient identity of interest between 
 them, to permit the admissions of one to bind the other, unless 
 prima facie evidence of a conspiracy between all of them has 
 been introduced. Carpenter v. Sheldon, 5 Sandf. 77; Wilson v. 
 
554 EVIDENCE 
 
 O'Day, 5 Daly, 354; Cuyler v. McCartney, 40 N. Y. 221; Ben- 
 nett V. McGuire, 58 Barb. 637. 
 
 Q. An action was brought to recover for certain lumber 
 used in the construction of a station. Evidence was introduced 
 to show that B, the contractor of the defendant, purchased 
 the lumber. This was objected to on the ground that there 
 was no testimony showing that B had authority to purchase 
 the lumber in question. Plaintiff then offered to show that 
 defendant had paid for other lumber purchased by B, to which 
 the defendant objected. What should the court do? 
 
 A. The court should admit the evidence that defendant 
 has paid for lumber purchased by B, as it is relevant and shows 
 that B had authority to purchase the lumber in question. 
 B's authority to act for the defendant was in issue, it could be 
 estabUshed by circumstances, and among others the recogni- 
 tion by the defendant of acts on his part similar in character 
 to those in controversy. Olcott v. R. R., 27 N. Y. 560; Beattie 
 V. R. R. Co., 90 N. Y. 643. 
 
 Q. A is arrested charged with having conunitted a murder. 
 He makes a full confession to an officer who visits hun in prison. 
 On the trial it is offered in evidence against him. A's attorney 
 objects, claiming that it is not admissible as he was under 
 arrest. It is conceded that the officer used no threats or prom- 
 ises to secure the confession. What should be the ruhng of the 
 court? 
 
 A. The objection should be overruled. It is no groimd for 
 the exclusion of confessions of prisoners charged with crime, that 
 they were made while under arrest, if shown that they were 
 made voluntarily, and without influences of promises or threats. 
 People V. McGloin, 91 N. Y. 240; People v. Chapleau, 121 
 N. Y. 266; People v. Kennedy, 159 N. Y. 346; People v. Cas- 
 sidy, 133 N. Y. 612; People v. White, 176 N. Y. 349. Section 
 395 of the Code of Crim. Pro., governing the admissibility 
 of confessions is as follows: "A confession of a defendant, 
 whether in the course of judicial proceedings or to a private 
 
EVIDENCE 555 
 
 person, can be given in evidence against him unless made 
 under the influence of fear produced by threats, or unless made 
 upon a stipulation of the district attorney that he shall not be 
 prosecuted therefor; but is not sufficient to warrant his con- 
 viction without additional proof that the crime charged has 
 been committed." 
 
 (Note.) "Where in a criminal prosecution a paper alleged to be a written 
 confession by the defendant is offered in evidence against him and he objects 
 to its admission and offers to prove at that stage of the trial that the paper 
 was procured from him by such threat or promises or under such circum- 
 stances as, if established, would render it inadmissible, it is the duty of the 
 trial judge to receive the evidence thus offered against the admissibility of the 
 alleged confession before deciding as to the competency of the confession 
 itself; and it is error to admit the paper without first receiving and consider- 
 ing such evidence." People v. Fox, 121 N. Y. 449; People v. Rogers, 192 
 N. Y. 331. 
 
 Q. A coroner's inquest is being held to inquire into the cause 
 of the death of A. B is subpoenaed as a witness and gives cer- 
 tain testimony. He is subsequently arrested and charged with 
 having murdered A. On his trial, the district attorney at- 
 tempts to introduce in evidence B's testimony given before 
 the coroner. It is objected to. What should be the ruling 
 of the court? 
 
 A. The objection should be overruled as the evidence is 
 admissible. "Where an inquest is being held before it has 
 been ascertained that a crime has been committed, or before 
 any person has been arrested charged with the crime, and a 
 witness is sworn before a coroner's jury, the testimony, though 
 the witness be afterward charged with the crime, may be used 
 against him on his trial, notwithstanding the fact, that at the 
 time of the examination he was aware a crime was committed, 
 and that he was suspected of being the criminal. If he desires 
 protection, he must claim his privilege. It would have been 
 different if he had been arrested before being taken before the 
 coroner; in such case the evidence given by him could not be 
 used against him on his trial for the crime. As a person under 
 arrest before a coroner's jury and accused of having committed 
 
556 EVIDENCE 
 
 a crime occupies before the coroner and jury a position similar 
 to that of such a person before an examining magistrate, and 
 therefore evidence given by him before the coroner except 
 where taken as prescribed by sees. 188, 196, 198, of the Code 
 of Crim. Pro., cannot be used against him upon his trial for 
 the crime." Hendrickson v. People, 10 N. Y. 13; People v. 
 McMahon, 15 N. Y. 384; Teachout v. People, 41 N. Y. 7; 
 People V. Mondon, 103 N. Y. 211. The testimony must be 
 voluntarily given after he has been fully advised of all his 
 rights and has been given an opportunity to avail himself of 
 them, when under arrest. The distinction must be drawn 
 between one who testifies as a witness and one who testifies 
 as a party. If the person who testifies at the inquest does so 
 simply as a witness he has none of the rights or immunities 
 of a party. If he testifies, however, as an accused or arrested 
 party, his testimony cannot be used against him upon a sub- 
 sequent trial of an indictment growing out of the inquest, 
 unless he was informed of his rights, that is, he must be in- 
 formed of the charge and of his right to the aid of counsel. 
 But testifying as a witness the testimony can be used against 
 him, for the law presumes that a person who is called upon to 
 testify as a mere witness knows his rights. He may decline 
 to testify to anything that may tend to incriminate him. If 
 he does not claim his privilege he cannot thereafter complain. 
 People V. Molineux, 168 N. Y. 331; People v. Brown, 203 N. 
 Y. 48. 
 
 Q. A who is a tenant of a certain building brings action 
 against the owner to recover damages for personal injuries 
 caused by falling down the stairs which were in an unsafe and 
 defective condition. At the trial, A's attorney offers to show 
 that three days after the accident the owner made certain 
 repairs to the stairs. This is objected to. What should be 
 the ruling of the court? 
 
 A. The objection should be sustained. It is well settled 
 in this state that such evidence is incompetent, because the 
 taking of such precautions against the future is not to be con- 
 
EVIDENCE 557 
 
 strued as an admission of responsibility for the past, has no 
 legitimate tendency to proof that the defendant has been 
 negligent before the accident happened, and is calculated to 
 distract the minds of the jury from the real issue, and to create 
 a prejudice against the defendant. "Such evidence has no 
 tendency whatever, we think, to show that the machine or 
 structure was not previously in a reasonably safe and perfect 
 condition, or that the defendant ought, in the exercise of rea- 
 sonable care and diligence, to have made it perfect, safe and 
 secure. While such evidence has no legitimate bearing upon 
 the defendant's negligence or knowledge, its natural tendency 
 is undoubtedly to prejudice and influence the minds of the 
 jury." Corcoran v. Village of Peekskill, 108 N. Y. 151. See 
 also Getty v. Town of Hamlin, 127 N. Y. 636; Clapper v. 
 Town of Waterford, 131 N. Y. 382; Causa v. Keeney, 156 App. 
 Div. 137; Engel v. Traction Co., 203 N. Y. 324. 
 
 Q. A is injured by falling on the sidewalk in front of B's 
 house. The sidewalk was out of repair and in a dangerous 
 condition, A brings action against B to recover damages for 
 the injuries sustained. B answers denying any liability, claim- 
 ing that he was under no duty to repair the sidewalk. At the 
 trial, A introduces evidence to show that shortly after the acci- 
 dent B made certain repairs to the sidewalk by replacing the 
 broken stone with a new one. This evidence is objected to. 
 Should the objection be sustained? 
 
 A. No. The evidence should be admitted for the purpose of 
 showing whose duty it was to make the repairs, and for this 
 purpose only; it is not admissible for the purpose of proving 
 negligence. "The evidence to the effect that the defendant 
 replaced the worn-out stone was admissible to show that the 
 defendant had control over the sidewalk." Bateman v. R. R., 
 47 Hun, 429; Morrell v. Peck, 88 N. Y. 399; Sprague v. City of 
 Rochester, 52 App. Div. 53. 
 
 Q. A question arises in condemnation proceedings as to the 
 value of a certain piece of property owned by A. A offers to 
 
558 EVIDENCE 
 
 prove what had been paid for a similar piece of property situ- 
 ated in the same neighborhood. This is objected to. What 
 should be the ruling of the court? 
 
 A. The objection should be sustained. "The reasons as- 
 signed for the conclusions reached in the cases cited are in the 
 main: That the test in legal proceedings is, what is the present 
 market value of the property which is the subject of the con- 
 troversy? It may be shown by the testimony of competent 
 witnesses, and on cross-examination, for the purpose of testing 
 their knowledge respecting the market value of land in that 
 vicinity, they may be asked to name such sales of property 
 and the prices paid therefor, as have come to their attention. 
 But a party may not establish the value of his land by showing 
 what was paid for another parcel similarly situated, because 
 it operates to give to the agreement of the grantor and grantee 
 the effect of evidence by them that the consideration for the 
 conveyance was the market value, without giving to the op- 
 posite party the benefit of cross-examination to show that one 
 or both were mistaken. If some evidence of value, then prima 
 facie a case may be made out so far as the question of damages 
 is concerned by proof of a single sale, and thus the agreement 
 of the parties, which may have been the result of necessity 
 or caprice, would be evidence of market value of land similarly 
 situated, and become a standard by which to measure the value 
 of land in controversy. This would lead to an attempt by the 
 opposing party to show, first, the dissimilarity of the two par- 
 cels of land; and, second, the circumstances surrounding the 
 parties which induced the conveyance. Thus each transaction 
 in real estate, claimed to be similarly situated, might present 
 two side issues which could be made the subject of as vigorous 
 contention as the main issue, and if the transactions were 
 numerous it would result in unduly prolonging the trial, and 
 unnecessarily confusing the issues, with the added disadvantage 
 of rendering preparation for trial difficult. Value of property 
 having a recognized market value, such as number one wheat 
 and corn, may of course be proven by showing the market 
 prices, but the value of property which is dependent upon 
 
EVIDENCE 559 
 
 locality, adaptability for a particular use, as well as the use 
 made of the property immediately adjoining, may not be 
 shown by evidence of the price paid for similar property." 
 Parker, J., in Petition of Hubert Thompson, 127 N. Y. 463. 
 This case has been followed in Manhattan R. R. v. Stuyvesant, 
 126 App. Div. 848; Matter of City of N. Y. (Crotona Park), 
 142 App. Div. 667; Matter of N. Y., Westchester & Boston 
 R. R. Co., 151 App. Div. 54. 
 
 Q. A brings action against a municipality to recover dam- 
 ages for personal injuries, caused by A tripping and falling over 
 an obstacle in the walk. Is the testimony of others that they, 
 at or about the same time, tripped over the same obstacle, 
 competent? 
 
 A. The evidence is admissible. Evidence to show the hap- 
 pening of a similar accident at the same place is admissible to 
 show that the street was unsafe, and also to show knowledge 
 on the part of the city. The frequency of accidents at a par- 
 ticular place would seem to be good evidence of its dangerous 
 character, at least it is some evidence to that effect. Besides 
 this, as publicity was necessarily given to the accidents, they 
 also tended to show that the dangerous character of the lo- 
 cality was brought to the attention of the city authorities. 
 Quinlan v. City of Utica, 11 Hun, 217, aff'd in 74 N. Y. 603; 
 Magee v. City of Troy, 48 Hun, 383, aff'd m 119 N. Y. 640; 
 Pomfrey v. Village of Saratoga, 104 N. Y. 459; Gillrie v. City 
 of Lockport, 112 N. Y. 403; Fordham v. Governeur, 160 N. Y. 
 541. 
 
 Q. A railroad company is sued by a passenger who received 
 an injury. The complaint sets forth that the injury was caused 
 by the neglect of the company to place in operation upon its 
 road an improved switch, which was in use upon a few roads. 
 Defendant offers evidence to show that the switch used by it 
 was in general use on other roads. Is the evidence admissible? 
 
 A. Yes. Such evidence tends to show that the switch is 
 such as a reasonably prudent person, exercising reasonable 
 
560 EA^DENCE 
 
 diligence, would properly consider safe for the pmposes for 
 which it was designed. Frace v. R. R., 143 N, Y. 182; McGrell 
 V. Buffalo Co., 153 N. Y. 265. 
 
 Q. A's house catches fire and is consumed. A sues the X 
 Raihoad Company, claiming that the fire was caused by sparks 
 which escaped from one of the engines of the company. A 
 shows by evidence that the fire could not have originated from 
 any other cause, and then attempts to prove that passing loco- 
 motives of the X Company have, on other occasions, caused 
 fires in the neighborhood by scattering sparks, and also that 
 they have repeatedly scattered sparks, though no actual fire 
 was thereby caused. The counsel for the road objects to the 
 admission of this evidence. What should be the ruling of the 
 court? 
 
 A. The evidence is admissible as tending to prove the pos- 
 sibility that some locomotive caused the fire, and as tending 
 to show a negligent habit of the officers and agents of the rail- 
 road company. "The business of running the trains on a rail- 
 road supposes a unity of management and a general similarity 
 in the fashions of the engines and the character of the opera- 
 tions. I think, therefore, it is competent prima facie evidence 
 for a person seeking to establish the responsibility of the com- 
 pany for a burning upon the track of the road, after refuting 
 every other probable cause of fire, to show that about the time 
 it happened, the trains which the company was running past 
 the location of the fire were so managed in respect to the fur- 
 naces, as to be likely to set on fire objects not more remote than 
 the property burned." Denio, Ch. J., in Sheldon v. R. R., 14 
 N. Y. 218. See also Field v. R. R., 32 N. Y. 339; Crist v. R. R., 
 58 N. Y. 638; Peck v. R. R., 165 N. Y. 347; Jacob v. R. R., 107 
 App. Div. 134; People v. N. Y. C. R. R., 155 App. Div. 669. 
 
 Q. A brings an action against B for breach of promise of 
 marriage. At the trial A offers eviderice of the general reputa- 
 tion of B being a wealthy man. This is objected to. How 
 should the court rule? 
 
EVIDENCE 561 
 
 A. The evidence should be admitted upon the question of 
 danaages. It is competent to introduce evidence of the general 
 reputation of the defendant's wealth in an action for breach 
 of promise of marriage, so as to give the jury some ground for 
 assessing the damages. Chellis v. Chapman, 125 N. Y. 214. 
 
 Q. B is on trial for receiving stolen property. He offers 
 evidence to show that when A brought the property to him, A 
 told him where and from whom he bought it, when he bought 
 it, and the price he had paid for it. Is the evidence admissible? 
 
 A. The evidence is admissible, as showing how the defendant 
 came by the property, and is competent upon the issue of 
 guilty knowledge. As it was material to prove that he received 
 the goods with knowledge that they were stolen, evidence to 
 show that he received them under circumstances which would 
 negative this knowledge was relevant. People v. Dowling, 
 84 N. Y. 478. 
 
 Q. A is on trial for obtaining goods under false pretenses 
 and with fraudulent intent. He is asked by his attorney, 
 "What was your intent?" The district attorney objects to 
 the admissibility of this evidence. Should the objection be 
 sustained? 
 
 A. No. "A party when charged with an intent to deceive, 
 or cheat or defraud, has a right to testify as a witness in his 
 own behalf, that he did not intend to cheat, deceive or defraud 
 in the transaction wherein he is charged with having had such 
 motive, leaving the weight due to his evidence to be determined 
 by the jury." Pope v. Hart, 35 Barb. 630; Seymom- v. Wilson, 
 4 Kern. 567; Dillon v. Anderson, 43 N. Y. 236; Baylis v. Cock- 
 roft, 81 N. Y. 371; LaUy v. Emery, 54 Hun, 517. 
 
 Q. A brings an action against B to recover damages for fraud 
 in the purchase of certain shares of stock, the complaint stating 
 that he (A) had been induced to purchase the stock because of 
 false and fraudulent representations in relation thereto, made 
 to him by B and on which he relied to his damage. On the 
 36 
 
562 EVIDENCE 
 
 trial A's attorney offered evidence of other similar representa- 
 tions made about the same time under similar circumstances to 
 other purchasers of the stock by B. This is objected to. Is 
 the objection good? Give reasons. 
 
 A. The objection should be overruled and the evidence ad- 
 mitted. It was competent upon the question of intent to 
 defraud. Gary v. Houghtaling, 1 Hill, 311; Miller v. Barber, 
 66 N. Y. 559 ; Hall v. Naylor, 18 N. Y. 588. " In all cases where 
 it is alleged that a party has acquired the property of another 
 through some fraudulent device, the charge may be supported 
 by proof of contemporaneous acts of the same character." 
 Boyd V. Boyd, 164 N. Y. 241. 
 
 Q. A is on trial for receiving stolen goods from B with the 
 knowledge that they were stolen. Evidence is offered to prove 
 the receipt of similar goods at about the same time from B, 
 which goods were stolen from a different firm. A's attorney 
 objects. What should be the ruling of the court? 
 
 A. The objection must be overruled. "Upon the trial of a 
 defendant indicted for the crime of feloniously receiving stolen 
 property, which the defendant knew to have been stolen, evi- 
 dence that the defendant had received property stolen by the 
 same thieves from a different owner is admissible to establish 
 the guilty knowledge of the defendant in receiving the property 
 charged in the indictment to have been stolen." People v. 
 Doty, 175 N. Y. 164. In this case Werner, J., writing for the 
 court, in an able opinion after reviewing all the authorities 
 including Goleman v. People, 55 N. Y. 81; Gopperman v. 
 People, 56 N. Y, 591; People v. Grossman, 168 N. Y. 47, which 
 formerly limited or seemed to limit this class of evidence to 
 goods stolen from the same owner by the same thief, says: 
 "Owe conclusion, therefore, is that neither authority nor prin- 
 ciple require us to hold that in prosecutions for receiving stolen 
 property, evidence of other receivings by the same defendant 
 from the same thief, can be admitted upon the question of a 
 defendant's guilty knowledge only in cases where the different 
 
EVIDENCE 563 
 
 thefts have been made from the same owner; but on the con- 
 trary we think there are cases, of which the one at bar is a fair 
 example, in which the guilty knowledge of a defendant in the 
 receiving of property charged in the indictment to have been 
 stolen, may be estabUshed by evidence of other receivings from 
 the same thief although in each case the property may have 
 been taken from a different owner." 
 
 (Note.) " Where knowledge is a necessary ingredient of a crime, evidence 
 of similar acts by the defendant at or about the same time is admissible. 
 Such evidence has been sanctioned in cases involving the uttering of forged 
 instruments, counterfeiting, obtaining money by false pretenses, receiving 
 stolen property, etc." People v. Marrin, 205 N. Y. 275. 
 
 Q. A is indicted for burglary. Upon the trial the district 
 attorney offers evidence to prove the general bad character of 
 A. An exception is taken to the ruUng admitting the testi- 
 mony. Is the exception weU taken? 
 
 A. The exception is well taken, as the prisoner here does not 
 appear to have offered evidence of his own good character 
 before the attempt of the prosecution to introduce evidence 
 of his bad character. The character of a prisoner cannot be 
 attacked, imless he has himself put his character in issue by 
 introducing evidence of his good character. It is only after 
 the defendant has opened the door as to his character, that the 
 prosecuting attorney will be permitted to give evidence of the 
 bad character of the accused. People v. White, 14 Wend. Ill ; 
 People V. Sharp, 107 N. Y. 457; People v. Pekarz, 185 N. Y. 
 470; People v. Hinksman, 192 N. Y. 421. 
 
 Q. Four witnesses testified upon the former trial of the same 
 action. Of these witnesses one is dead, one insane, one has 
 forgotten the facts, and the other who is a non-resident has 
 departed from the state. How would you proceed to get the 
 testimony of these witnesses before the court, if such testimony 
 is admissible? 
 
 A. The evidence of the one that is dead, the evidence of the 
 one that is insane, and the evidence of the one who is a non- 
 
564 EVIDENCE 
 
 resident and has departed from the state, can be read at the 
 new trial from the stenographer's minutes, but the evidence 
 of the one that has forgotten . the facts cannot be read in evi- 
 dence. The only way to try to get this evidence before the 
 court is to try to refresh his memory by calling his attention 
 to the testimony that he gave on the former trial. Section 830 
 of the Code of Civ. Pro. provides for the reception of the evi- 
 dence of the one that is dead, the one that is insane and for 
 the non-resident. 
 
 Q. In an action by A against B, B defaults, but A appears. 
 An inquest is taken, A being sworn and giving testimony in 
 his own behalf. B subsequently makes a motion to have the 
 default opened, which is granted; but before the retrial of the 
 cause A dies. His personal representatives continue the ac- 
 tion, and seek to have A's testimony given at the inquest read 
 from the minutes. B's attorney objects. What should be the 
 ruling of the court? 
 
 A. The objection should be overruled. The evidence was 
 competent under sec. 830 of the Code of Civ. Pro., and as the 
 defendant had the power to appear and cross-examine, his 
 failure to do so was a waiver of that right. Bradley v. Mirick, 
 91 N. Y. 293; Shaw v. R. R., 187 N. Y. 186. 
 
 Q. A man was killed in a railroad accident. On the trial 
 of an action by his personal representatives for damages, the 
 plaintiff offered to prove dying declarations of the deceased 
 as to the manner of his injuries. These declarations were made 
 about two days after the accident. The attorney for the 
 railroad company objects to the admission of this evidence. 
 What should be the ruling of the court? 
 
 A. The objection should be sustained. The declarations 
 having been made after the accident are not part of the res 
 gestse, and therefore inadmissible. "Even dying declarations 
 are not received in civil actions unless part of the res gestse. 
 Such declarations made in the immediate presence of death, 
 under the most solemn circumstances, when all motive to 
 
EVIDENCE 565 
 
 pervert the truth may be supposed to have ceased to operate, 
 are received only in trials for homicide of the declarant in cases 
 where the death of the deceased is the subject of the charge, 
 and the circumstances of the death are the subject of the dying 
 declarations. It is said that the reason for thus restricting the 
 rule may be, that credit is not in all cases due to the declara- 
 tions of a dying person, for his body may survive the power of 
 his mind; or his recollection, if his senses are not impaired, 
 may not be perfect; or for the sake of ease, and to be rid of 
 the importunity and annoyance of those around httn, he may 
 say, or seem to say, whatever they may choose to suggest. 
 The rule admitting dying declarations as thus restricted stands 
 only upon the ground of the public necessity of preserving the 
 lives of the community by bringing manslayers to justice." 
 Earl, J., in Waldele v. R. R,, 95 N. Y. 274. 
 
 Q. When as a general rule are dying declarations admissible 
 in evidence? Why are they admitted, and on what ground? 
 What circumstances are essential to their admission? 
 
 A. Dying declarations are not admitted in civil cases, but 
 only in criminal cases of homicide. It is well settled that 
 dying declarations are admissible in cases of homicide only 
 when the death of the decedent is the subject of the charge, 
 and the circumstances of the death are the subject of the decla- 
 rations and that they may not properly include narratives of 
 past occiuTences. People v. Davis, 56 N. Y. 95; Eighmy v. 
 People, 79 N. Y. 546; Greenfield v. People, 85 N. Y. 75. See 
 Chase's Stephen's Law of Ev., 86, Art. 26. The declarant must 
 be shown to the satisfaction of the court to have been in actual 
 danger of death, and to have given up all hope of recovery at 
 the time when the declaration is made. The sense of impending 
 death is deemed equivalent to the sanction of an oath. The 
 person offering the declarations in evidence must show that 
 they were made under the sense of impending death. The 
 declarations are admissible when made within a reasonable 
 time after the commission of the crime. Brotherton v. People, 
 75 N. Y. 159; People v. Smith, 104 N. Y. 491. The rule re- 
 
566 EVIDENCE 
 
 specting the admission of dying declarations, is, that in order 
 to make them competent as evidence, it must appear that the 
 person making them does so under a belief of impending death 
 and when entertaining no hope of recovery. Before such 
 declarations can be admitted in evidence both conditions of 
 mind must be established. Belief in impending death alone is 
 not sufficient. Abandonment of hope of recovery must also be 
 shown. People v. Chase, 79 Hun, 296, aff'd in 143 N. Y. 669; 
 People V. Conklin, 175 N. Y. 333; People v. Brecht, 120 App. 
 Div. 771. 
 
 Q. A is found mortally wounded. B, who assists him to 
 regain consciousness, asks him who inflicted the injuries upon 
 him. A answers, "I think it was C." C is subsequently ar- 
 rested and tried for A's murder. Upon his trial, the district 
 attorney attempts to put in evidence the dying declarations of 
 A. C's attorney objects. What should be the ruling of the 
 court? 
 
 A. The objection should be sustained. The evidence is 
 inadmissible. "Upon trials for murder, declarations of the 
 deceased made when in extremis, which are not statements of 
 fact which a living witness would have been permitted to 
 testify to, but are merely expressions of beUef and suspicions 
 are not admissible." People v. Shaw, 63 N. Y. 36. "Statements 
 made by decedent as to an occurrence which transpired several 
 hours before the homicide and which was an independent trans- 
 action not shown to have had any connection with the crime, 
 are not admissible as dying declarations." People v. Smith, 
 172 N. Y. 212. 
 
 (Note.) "Statements made by the deceased, as to the identity of his 
 assailant, are properly admitted in evidence as dying declarations, where it 
 appears that they were made in conjunction with numerous declarations of 
 deceased to the effect that he was about to die and the proof presents a 
 picture of a man actually dying whose utterances were spoken under a sense 
 of impending death and without hope of recovery, since such evidence con- 
 stitutes a sufficient foundation for the admission of his statement. While the 
 prosecution must show that the deceased was in actual danger of death and 
 had given up all hope of recovery at the time when his declarations were 
 
EVIDENCE 567 
 
 made, that fact may be proved like any other, and can be inferred from the 
 existing and surrounding circumstances." People v. Del Vermo, 192 N. Y. 
 470. 
 
 Q. A is on trial for the murder of B. C has ah-eady been 
 convicted for the same murder. The attorney for A offers 
 a statement by C made immediately before his (C's) execution 
 to the effect, that so far as he (C) knew A had nothing to do 
 with the murder of B. This statement of C is offered as a dying 
 declaration, but is objected to by the district attorney. How 
 should the court rule? 
 
 A, The objection should be sustained. "Although at com- 
 mon law dying declarations were admissible only on trials for 
 murder or manslaughter, they have been made admissible 
 by statute in New York in prosecutions for abortion. (Code 
 Crim. Pro. sec. 348a.) So clearly established was the restriction 
 to cases of homicide that a legislative enactment was deemed 
 necessary to warrant the admission of dying declarations in 
 any other class of cases. (People v. Davis, 56 N. Y. 95.) In 
 the case cited it was held by this court that dying declarations 
 were admissible in cases of homicide only, where the death of 
 the deceased is the subject of the charge and the circumstances 
 of the death are the subject of the dying declarations. . . . 
 The declaration must be a statement by the victim of the crime, 
 and however cogent may be the reasoning of admitting proof 
 of declarations by any victim about to die and aware of his 
 approaching dissolution, it suffices to say that up to the pres- 
 ent time, evidence of dying declarations has never been ad- 
 missible under the law of the state of New York unless the 
 declaration proceeded from the victim of the assault, the 
 alleged perpetrator of which was on trial." People v. Becker, 
 215 N. Y. 126. 
 
 Q. A Avitness testifies to an ante-mortem statement made by 
 the deceased. The judge allows the same. Admitting the 
 ruling to be correct, is the following charge to the jury sustain- 
 able on appeal? "This testimony should be given the greatest 
 weight that the law can give to any evidence, for it is the best 
 evidence." 
 
568 EVIDENCE 
 
 A. The charge was clearly erroneous and cannot be sustained 
 on appeal. "While dying declarations when admitted in evi- 
 dence are entitled to be considered as having the weight of 
 an oath, they are not of the same value and weight as the direct 
 evidence of a witness subject to cross-examination, and whose 
 demeanor, when upon the stand, is open to the observation of 
 the jury. An instruction, therefore, that such declaration should 
 be given all the sanction of evidence which the law can give to 
 any evidence, is reversible error." People v. Kraft, 148 N. Y. 
 631; People v. Carbone, 156 N. Y. 413. 
 
 (Note.) "The statement, in charging the jury upon the subject of dying 
 declarations, that 'it is the experience of mankind that the premonition of 
 immediate death, from which there is no hope of recovery, is always suflScient 
 to influence persons so situated to speak the truth ' is erroneous, and when not 
 so modified by other portions of the charge as to correct its tendency to 
 injure the defendant, is ground for reversal of a judgment of death." People 
 V. Corey, 157 N. Y. 332. In that case Vann, J., said: "Dying declarations 
 are received from necessity, in order to prevent a failure of justice, upon the 
 theory that the belief of impending death is equivalent to an oath. The rule 
 as we understand it goes no further. The fear of punishment by the law for 
 perjury furnishes no safeguard that the declarant will speak the truth, and 
 hence such evidence has no sanction except a belief in responsibility after 
 death. All men, however, do not entertain that beUef." See also People v. 
 Gouvernale, 193 N. Y. 581. 
 
 Q. It was important for the plaintiff in an action of eject- 
 ment to establish the date of the marriage of A and B, both 
 of whom were lost at sea thirty years before. Plaintiff claimed 
 to be the legitimate son of A and B. He offered to show by C, 
 that C had heard the mother of B say about ten years before, 
 that her daughter was married to A on the date claimed by 
 the plaintiff. The mother has since died. The evidence was 
 objected to as incompetent and hearsay. How did the court 
 rule, and on what theory? 
 
 A. The evidence was admissible as a pedigree statement, as 
 the question involved in this case is purely a genealogical one, 
 i. e., descent and relationship. "It seems to me that they are 
 competent as hearsay evidence in a case of pedigree. Such a 
 case is a well-known and recognized exception to the general 
 
EVIDENCE 569 
 
 rule excluding hearsay evidence. This case (action of eject- 
 ment by one claiming to be a legitimate son) involves without a 
 doubt a question of pedigree simply. It is what is termed in 
 the books a purely genealogical controversy. . . . The ex- 
 ception regarding the admission of hearsay evidence in a case 
 of pedigree is not confined to ancient facts, but extends also to 
 matters of pedigree which have recently transpired; and the 
 hearsay as to deceased witnesses is admitted as to facts which 
 have occurred in the presence of living witnesses. Matters of 
 pedigree consist of descent and relationship, evidence of dec- 
 larations of particular facts, such as births, marriages, and 
 deaths. . . . Upon questions of pedigree, i. e., in a controversy 
 merely genealogical, hearsay evidence is allowed as to the time 
 of the birth of a certain party, as to a marriage, death, legiti- 
 macy, or the reverse, consanguinity generally, and particular 
 degrees thereof, and of affinity. The term 'pedigree' says 
 Greenleaf , not only embraces descent and relationship, but also 
 the fact of birth, marriage and death, and the time when these 
 events happen, and the rule permits hearsay evidence of the 
 declarations of deceased members of the family upon these 
 poiats in any case involving pedigree. ... As to what is a 
 case of pedigree, an examination of the question shows a case 
 is not necessarily one of that kind, because it may involve 
 questions of birth, parentage, age, or relationship. Where 
 these questions are merely incidental, and the judgment will 
 simply establish a debt, or a person's liability on a contract, 
 or his proper settlement as a pauper, and things of that nature, 
 the case is not one of pedigree, although questions of marriage, 
 death, or birth, are incidentally inquired." Peckham, J., in 
 Eisenlord v. Clum, 126 N. Y. 552. "Pedigree is the history of 
 family descent, which is transmitted from one generation to 
 another by both oral and written declarations, and unless 
 proved by hearsay evidence it cannot in most instances be 
 proved at all. Hence, declarations of deceased members of a 
 family made ante litem motam, are received to prove family 
 relationship including marriages, births and deaths, and the 
 facts necessarily resulting from these events. Before they can 
 be received, however, as evidence of pedigree, it must appear 
 
570 EVIDENCE 
 
 that the person making them was a member of the family and 
 that he is dead, incompetent or beyond the jurisdiction of the 
 court." Young v. Shulenberg, 165 N. Y. 385. See also Wash- 
 ington V. Bank for Savings, 171 N, Y, 166. 
 
 Q. Upon a certain trial for abduction, it becomes necessary 
 and material to prove the age of the female abducted. For 
 the piupose of proving the girl's age, the district attorney offers 
 in evidence a family Bible containing entries of births. Counsel 
 for the prisoner objects to this testimony. Is the evidence 
 admissible? 
 
 A. Yes. Although this is not a question of pedigree, as 
 there is no genealogical controversy, the evidence is neverthe- 
 less admissible under sec. 817 of the Penal Law, which in part 
 is as follows: "Whenever in any legal proceedings it becomes 
 necessary to determine the age of a child, the child may be 
 produced for personal inspection, to enable the magistrate, 
 court or jury, to determine the age thereby; and the court or 
 magistrate may direct an examination by one or more physi- 
 cians, whose opinion shall also be competent evidence upon 
 the question of age. A copy of the record of baptism of any 
 child in any parish register, or register kept in a church, or by a 
 clergyman thereof, or a certificate of baptism duly authenti- 
 cated by the person in charge of such register, or who admin- 
 istered said baptism, and also a transcript of the record of 
 birth recorded in any bureau of vital statistics or board of 
 health, duly authenticated by its secretary or under its seal, 
 and the entries made in a family Bible shall also be competent 
 evidence upon the question of the age." 
 
 Q. A, a butcher, sues B for the value of certain meat fur- 
 nished by him to B and his family. It was proved by several 
 witnesses that A had been in the daily practice of supplying 
 B's family with meat during the period for which he claimed 
 payment. It was proved by some of those that dealt with 
 him that he kept honest accounts. He then offered his books 
 of account in evidence, it appearing that he employed no clerk. 
 
EVIDENCE 571 
 
 The admission of the books in evidence was objected to, but 
 the objection was overruled. An exception was taken, and 
 the case now comes up on appeal. What should be the decision 
 of the appellate court? 
 
 A. The evidence was properly admitted. "They are not 
 evidence in the case of a single charge, because there exists, 
 in such case, no regular dealings between the parties. They 
 ought not to be admitted where there are several charges, un- 
 less a foundation is first laid for their admission, by proving 
 that the party had no clerk, that some of the articles charged 
 have been delivered, that the books produced are the account 
 books of the party, and that he keeps fair and honest accounts, 
 and this by those who have dealt and settled with him." Vos- 
 burg V. Thayer, 12 Johns. 461. This case represents the so- 
 called shop book rule of this state. McGoldrick v. Traphagen, 
 88 N. Y. 334; West v. Van Tuyl, 119 N. Y. 620; Smith v. Smith, 
 163 N. Y. 168; Swan v. Werner, 197 N. Y. 191. A clerk means 
 some one who had something to do with, and had knowledge 
 generally of the business of his employer and who would be 
 enabled to testify upon the subject of the goods sold. The 
 plaintiff's wife cannot be claimed to be a clerk, within the mean- 
 ing of the rule. Smith v. Smith (supra) ; Levison v. Katz, 75 
 Misc. 466. 
 
 (Note.) "The rule which prevails in this state, that the books of a trades- 
 man or any other person engaged in business containing items of account, 
 kept in the ordinary course of book account, are admissible in favor of the 
 person keeping them against the party against whom the charges are made, 
 after certain preliminary facts are shown, has no application to the case of 
 books or entries relating to cash items or dealings between the parties. This 
 qualification of the rule was recognized in the earliest decisions of this state, 
 and has been maintained by the courts with general uniformity. It stands 
 upon clear reasons. The rule admitting account books of a party in his own 
 favor in any case, was a departure from the ordinary rules of evidence. It 
 was founded upon a supposed necessity, and was intended for cases of small 
 traders who kept no clerks, and was confined to transactions in the ordinary 
 course of buying and selling or the rendition of services. In these cases some 
 protection against fraudulent entries afforded in the publicity which to a 
 greater or less extent attends the manual transfer of tangible articles of 
 property or the rendition of services, and the knowledge which third persons 
 
572 EVIDENCE 
 
 may have in the transactions to which the entries relate. But the same 
 necessity does not extend in relation to cash transactions. They are usually 
 evidenced by notes or writings or vouchers in the hands of the party paying or 
 advancing the money." Andrews, J., in Smith v. Rentz, 131 N. Y. 169. See 
 also Simons v. Steele, 82 App. Div. 205; Brown v. Bronson, 93 App. Div. 315. 
 
 Q. A witness is called to prove a payment to plaintiff. He 
 is unable to recall that he made such payment. On looking 
 up an entry which he made, and which he testifies to be cor- 
 rect, he says his memory is refreshed, and he now remembers 
 the payment to which he testifies positively. The entry is 
 then offered in evidence. Is it admissible? 
 
 A. No. "It is indispensable to the admission in evidence 
 of a memorandum made by a witness at the time of the making 
 of an alleged agreement, that it be shown that the witness has 
 no recollection of the matter stated therein independent of 
 the written paper. If he has such recollection, the entry is 
 not admissible." Meacham v. Pell, 51 Barb. 65. "The rule 
 which renders such entries admissible rests upon the principle 
 of necessity for the reception of secondary evidence, and is 
 not applicable where the witness has a distinct recollection 
 of the essential facts to which they relate. The primary com- 
 mon law proof is then furnished, and the necessity for evidence 
 of the lesser degree does not arise, and so it is incompetent." 
 Nat. Bank v. Madden, 114 N. Y. 280, 285. See also People v. 
 McLaughUn, 150 N. Y. 392. 
 
 (Note.) "In an action for conversion of personal property consisting of 
 many items, a witness who has made a Ust of all the items and their valuefe, 
 and who is able to testify that all the articles named were taken and were 
 of the value stated, may aid his memory while testifying, by such Usts, and 
 may use it to enable him to state the items; after he has testified the list may 
 be put in evidence, not as proving anything of itself, but as a detailed state- 
 ment of the items testified to." Howard v. McDonough, 77 N. Y. 592. 
 
 Q. On the trial of an action a witness is called to prove a 
 certain pajonent; he is unable to recall the fact that he made 
 one. He is shown an entry which states the payment and the 
 date thereof. He testifies that his memory is not refreshed, but 
 that he had acknowledged the fact when he made the entry. 
 
EVIDENCE 573 
 
 and that the entry records correctly what he then knew to be 
 true. Is the entry admissible in evidence? 
 
 A. Yes. "In Halsey v. Sinsebaugh, 15 N. Y. 435, the ques- 
 tion whether a memorandum, made at or about the time when 
 the event or transaction mentioned in it took place, and where 
 the author swears that he knows it to have been correct when 
 made, can be read to the jury in connection with the oral testi- 
 mony of the witness, or whether the evidence is confined to 
 what the witness is able to recollect after refreshing his memory 
 by referring to the memorandum, came up for decision in this 
 court. And it was held to be admissible. The paper did not 
 fall within the rule as an entry made in the course of business, 
 like the memoranda and entries made by clerks in banks and 
 the Uke; and it was not placed on that footing in the opinion 
 of the court. On the contrary. Judge Selden, by whom the 
 opinion was prepared, took pains to say that he did not con- 
 sider the case of such memorandum as the one then in ques- 
 tion, was governed by any particular rule, but that the general 
 question was presented, whether a memorandum, that is, 
 any memorandum made and sworn to in the manner stated, 
 would be admissible. The whole of the reasoning of the opin- 
 ion, and the cases reUed upon, sustain the position as a general 
 one applicable to every species of memorandmn, and not re- 
 stricted to the routine entries referred to." Denio, J., in 
 Guy V. Mead, 22 N. Y. 482; Clark v. Bank, 164 N. Y. 498; 
 McCarthy v. Meaney, 183 N. Y. 190; Donler v. Pru. Ins. Co., 
 143 App. Div. 539. 
 
 Q. A is the foreman and B is the bookkeeper of the X Cor- 
 poration. The X Corporation sues C for goods sold and de- 
 Uvered. At the trial, entries in the books of the corporation 
 are offered in evidence, and by way of foundation A is called 
 as a witness. He swears that he does not remember the trans- 
 actions, but that he always reported correctly to B each day 
 the bills of goods made and delivered. B is then called and 
 swears that he does not remember the transactions, but that 
 he always entered the reports of A correctly in the books. 
 Are the entries admissible? 
 
574 EVIDENCE 
 
 A. Yes. "Where a party testifies that he made certain 
 entries in a book in accordance with statements made to him 
 by others, and such others testify that the facts were correctly 
 given to him and that he entered them, such evidence is ad- 
 missible. An entry is not incompetent evidence because of 
 its being of a fact not within the personal knowledge of the 
 party making it. It is enough if it appears that such entry 
 rests upon knowledge and not hearsay, and is proved to have 
 been correctly made." Payne v. Hodge, 7 Hun, 171, aff'd 
 in 71 N. Y. 598. 
 
 (Note.) "We are of opinion that the rule as to the admissibiUty of memo- 
 randa may properly be extended so as to embrace the case before us. The 
 case is of an account kept in the ordinary course of business, of laborers 
 employed in the prosecution of the work, based upon daily reports of foreman 
 who had charge of the men, and who, in accordance with their duty, reported 
 the time to another subordinate of the same common master, but of a higher 
 grade, who in turn, also in accordance with his duty, entered the time as 
 reported. We think entries so made, with the evidence of the foreman that 
 they made true reports, and of the person who made the entries that he cor- 
 rectly entered them, are admissible. It is substantially by this method of 
 accounts, that business transactions in numerous cases are authenticated, and 
 business could not be carried on, and accounts kept in many cases, without 
 great inconvenience, unless this method of keeping and proving accounts is 
 sanctioned. In a business where many laborers are employed, the accounts 
 must, in most cases of necessity, be kept by a person not personally cognizable 
 of the facts, — and from reports made by others. . . . We are of opinion, 
 however, that it is a proper qualification of the rule admitting such evidence, 
 that the account must have been made in the ordinary course of business, 
 and that it should not be extended so as to admit a mere private memorandum 
 not made in pursuance of any duty owing by the person who made the com- 
 munication casually and voluntarily, and not under the sanction of duty or 
 other obUgation." Andrews, J., in Mayor, etc., v. Second Ave. R. R., 102 
 N. Y. 572. See also Cornell v. Standard Oil Co., 91 App. Div. 351 ; Collins v. 
 Carlin, 106 App. Div. 206. 
 
 Q. On the trial of an action of A against the X Company for 
 conversion of certain machinery, declarations of C who is 
 dead, are offered in evidence by A as against the X Company. 
 C was a director of the X Company who had negotiated the 
 purchase of the machinery, and the declarations were offered 
 to prove that the X Company had knowledge of A's claim of 
 
EVIDENCE 575 
 
 title to the machinery. Objection is made that the evidence is 
 hearsay and incompetent. What should the ruling be and for 
 what reason? 
 
 A. The declarations should be admitted as they were dec- 
 larations against the interest of the party making them, there- 
 fore likely to be true, and the declarant was dead and had 
 possessed competent knowledge of the facts. The rule is stated 
 in Greenleaf on Evidence, sec. 147, as follows: "A third excep- 
 tion to the rule, rejecting hearsay evidence, is allowed in the 
 case of declarations and entries made by persons since de- 
 ceased, and against the interest of the persons making them, 
 at the time they were made. . . . This class embraces not 
 only entries in books, but all other declarations or statements 
 of facts, whether verbal or in writing, and whether they were 
 made at the time of the fact declared or at a subsequent day. 
 But to render them admissible, it must appear that the declar- 
 ant is deceased; or that it was his duty to know them; and that 
 the declarations were at variance with his interests." "The 
 court receives declarations of a deceased person against his 
 interest because of their likelihood of being true, of their 
 general freedom from any reasonable probabiHty of fraud, and 
 because they cannot be set up or proven until the death of the 
 party making them." Peckham, J., in Lyon v. Ricker, 141 
 N. Y. 225. See also Griffin v. Train, 90 App. Div. 16; Tomp- 
 kins V. Fonda Glove Co., 188 N. Y. 261. 
 
 Q. A, a passenger, was killed by the derailing of the loco- 
 motive, caused by a defective rail. A physician who attended 
 the decedent about an hour after the accident, testified that 
 the decedent who had been insensible, upon regaining con- 
 sciousness exclaimed: "My head! My head!" Being inter- 
 rogated further, the physician testified as to certain things told 
 him by A at the time, which would prevent the plaintiff from 
 succeeding in the action.. Plaintiff objects. Is the objection 
 good? How far good, if good at all? 
 
 A. The exclamations having been made an hour after the 
 accident are clearly inadmissible as a part of the res gestae, 
 
576 EVIDENCE 
 
 but are admissible as declarations as to the state of health or 
 bodily feeling. "In actions to recover damages for alleged 
 negligence causing a personal injury, declarations of the party 
 injured made some time after the injury, simply to the effect 
 that he is suffering pain, when not made to a physician for 
 the purpose of professional attendance, are not competent. 
 The rule is different as to groans, screams, or exclamations 
 indicative of pain." Roche v. R. R., 105 N. Y. 294; Davidson 
 V. Cornell, 132 N. Y. 237. As to the subsequent statements 
 made by A, they are also admissible, and the physician is not 
 precluded from testifying, the statements not being privileged 
 communications. "The prohibition of sec. 834 of the Code 
 of Civ. Pro., relating to communications between physicians 
 and patients, extends only to such communications as are 
 necessary to enable the physician to act in his professional 
 capacity, and does not extend to admissions made by the 
 patient of facts which have no possible relation to the profes- 
 sional conduct of the physician." DeJong v. R. R., 43 App. 
 Div. 427; Griebel v. R. R., 68 App. Div. 205; Deutschman v. 
 R. R., 87 App. Div. 515. 
 
 Q. At the probate of a lost or destroyed will, a witness 
 swears that he was present when the decedent took the paper, 
 declared it to be his will, stated its contents, and that because 
 his son had acted in a certain way he would destroy it. He 
 thereupon took the paper and threw it into the fire, while the 
 witness was looking on. His testimony is objected to. Shall 
 the objection be sustained? 
 
 A. No. The evidence is admissible, as the declarations 
 accompanied the act, and were a part of the res gestae. "I 
 consider these cases as establishing the doctrine that upon a 
 question of revocation no declarations of the testator are ad- 
 missible except such as accompany the act by which the will 
 is revoked; such declarations being received as part of the res 
 gestae, and for the purpose of showing the intent of the act. . . . 
 The fact to be proven in such cases is, the act claimed to be a 
 revocation together with the intent with which it was done; 
 
EVIDENCE 577 
 
 and all declarations of the testator which do not accompany the 
 act are to be regarded as mere hearsay, and should be treated 
 as such." Selden, J., in Waterman v. Whitney, 11 N. Y. 158; 
 Re Kathan's Will, 141 N. Y. Suppl. 715. 
 
 Q. The probate of the will of A is contested by his son B on 
 the ground of the insanity of A. Evidence is offered at the 
 trial of the declarations of A made two months after the execu- 
 tion of the will, and stating the contents of the will to be dif- 
 ferent than its original contents. The evidence is objected to. 
 What should be the ruling of the court? If admissible at all, 
 how and for what purpose? 
 
 A. The evidence is admissible for the purpose of showing 
 the mental condition of the testator at the time of the execution 
 of the will. "Here, as in that case, the offer was to prove dec- 
 larations of the testator stating the contents of the will to be 
 entirely different from what they were in fact; and these dec- 
 larations were offered in connection with other evidence bear- 
 ing upon the competency of the testator at and before the 
 execution of the will. If evidence of the mental condition of 
 the testator after the execution of the will is admissible in any 
 case, as to his capacity when the will was executed, and the 
 competency of such proof seems to be sustained by many au- 
 thorities and contradicted by none, then it is clear that the 
 testimony offered here should have been admitted. It does 
 not follow from this, that evidence of this nature is necessarily 
 to be received however remote it may be in point of time from 
 the execution of the will. The object of the evidence is to 
 show the mental state of the testator at the time when the will 
 was executed." Selden, J., in Waterman v. Whitney, supra, a 
 leading case followed in Marx v. McGlynn, 88 N. Y. 374; 
 .Matter of Woodward, 167 N. Y. 28; Chambers v. Chambers, 
 61 App. Div. 308; Smith v. Keller, 205 N. Y. 49. It should be 
 observed that while the declarations of the testator are ad- 
 missible on the question of his mental condition at the time of 
 the execution of the will, they are not competent evidence of 
 the facts stated. They are allowed for the purpose of showing 
 37 
 
578 EVIDENCE 
 
 the mental strength of the testator's mind, but when so ad- 
 mitted as evidence, they should be confined to that purpose 
 only. 
 
 Q. A was duly authorized by B, as his agent, to purchase of 
 C a quantity of fm-niture for him, B. A purchased the same, 
 and it was duly delivered to B, who became insolvent before 
 it was paid for. C replevied the goods, claiming title. B de- 
 fended, denying plaintiff's title. On the trial, C testified that 
 the goods were sold on sixty days' credit, and that it was ver- 
 bally agreed between himself and A at the time of the sale, 
 that title should remain in him, C, until the furniture was paid 
 for. C was then allowed to prove, over the defendant's ob- 
 jection, as a part of his case, that about a month after the sale 
 and deUvery, A stated to X that he had agreed with C, at 
 the time of the purchase, that title should remain in him imtil 
 the furniture was paid for. Was the evidence competent or 
 otherwise? State yoxir reasons and the rule. 
 
 A. The evidence was incompetent and should have been 
 excluded. "Evidence of declarations of an agent made to a 
 third party as to the nature of a past transaction is inadmissible 
 against his principal. The fullest authority to an agent to 
 contract confers no power to bind the principal by subsequent 
 declarations as to what the contract was. The declaration in 
 order to be admissible must be a part of the res gestae." Wood 
 V. Pierson, 46 State Rep. 70; Ins. Co. v. R. R., 139 N. Y. 146; 
 Arnold v. Rockland Co., 123 App. Div. 661. 
 
 Q. A tells his servant to sell his wagon. The servant repre- 
 sents the wagon to be a "Brewster" make. The servant said 
 to a witness: "John Doe (buyer) thinks he has bought a 
 Brewster wagon, but he has not," referring to the wagon sold. 
 This conversation took place about an hoiu" after the sale. 
 The buyer sues A and wants to introduce this testimony of 
 the witness as to the servant's declarations to show that the 
 article sold was not what it was represented. Is this admis- 
 sible? 
 
EVIDENCE 579 
 
 A. No. The evidence was not admissible, as it consisted of 
 declarations of an agent made when not engaged in the business 
 of his agency, and so not binding upon his principal. The 
 declarations of an agent, in order to bind his principal, must 
 be made not only during the continuance of the agency, but 
 at the very time of the transaction in question, and so forming 
 part of the res gestae. Anderson v. R. R., 54 N. Y. 334; White 
 V. Miller, 71 N. Y. 118; Taylor v. Commercial Bank, 174 N. Y. 
 191. 
 
 Q. A is run over by a street car and killed. His representa- 
 tives bring an action on the ground of negligence of the motor- 
 man, and also claim that the brakes were out of repair. On 
 the trial they were allowed to prove by the testimony of a by- 
 stander, that just as the car stopped and while A was under it, 
 the motorman in response to a question said he could not reverse 
 the brake, and that was why he could not stop. Was the evi- 
 dence admissible, and if so, why? 
 
 A, This evidence is not admissible as part of the res gestae, 
 as the declaration was made after the car stopped. "The 
 declaration of the driver after the accident had occurred and 
 the car had been stopped, but before he had left it, that he 
 could not stop the car because the brakes were out of order, 
 is mere hearsay, and not admissible in evidence against his 
 employer. The declaration was no part of the driver's act for 
 which the defendants were sued. It was not made at the 
 time of the act, so as to give it quality and character. The 
 alleged wrong was complete, and the driver, when he made the 
 statement, was only endeavoring to account for what he had 
 done. He was manifestly excusing himself and throwing the 
 blame on his> principal." Luby v. R. R., 17 N. Y. 131. See 
 also Whitaker v. R. R., 51 N. Y. 295, where a declaration made 
 immediately after the car had passed the scene of the accident 
 was held inadmissible. The phrase res gestae in cases of this 
 character impUes substantial coincidence in time. The declara- 
 tion must be contemporaneous with the act. Sherman v. R. R., 
 106 N. Y. 542; Taylor v. R. R., 63 App. Div. 690; Barnes v. 
 Borden's Milk Co., 93 App. Div. 566. 
 
580 EVIDENCE 
 
 Q. A brings action to recover damages for alleged negligence 
 causing the death of B, his son. At the trial, the plaintiff offers 
 in evidence certain statements made by B thirty minutes after 
 the accident. Objected to. Is the evidence admissible? State 
 the rule. 
 
 A. The evidence is not admissible, as the declarations were 
 not part of the res gestae, having been made after the accident. 
 "The claim that the declaration can be treated as part of the 
 res gestae is not supported by authority in this state. The res 
 gestae, speaking generally, was the accident. These declara- 
 tions were no part of that, . . . were not made at the same 
 time, or so nearly contemporaneous with it as to characterize it, 
 or throw any light upon it. They are purely narrative, giving 
 an account of a transaction not partly past but wholly past 
 and completed. They depend for their truth wholly upon the 
 acciuracy and rehability of the deceased, and the veracity of 
 the witness who testifies to them. Nothing was then trans- 
 piring or evident to any witness which could confirm the declar- 
 ations, or by which upon cross-examination of the witness testi- 
 fying, or by the examination of other witnesses the truth 
 of the declarations could be tested." Earl, J., in Waldele 
 V. R. R., 95 N. Y. 274. 
 
 (Note.) " It is very difficult to enunciate any principle from the authorities 
 on this subject which will fit every case. In order to make a declaration of 
 this kind competent it seems to be settled that it must bear a close relation to 
 the principal transaction and that it must be a spontaneous exclamation, an 
 outburst of the feelings, and not a mere narration of a past event." Scheir 
 V. Quirin, 77 App. Div. 629. The Court of Appeals in People v. Del Vermo, 
 192 N. Y. 470, at p. 483, stated the rule to be as follows: "Evidence is ad- 
 missible of exclamatory statements declaratory of the circumstances of an 
 injury when uttered by the injured person immediately after the injury; 
 provided that such exclamations be spontaneously expressive of the injured 
 person's observation of the effects of a starthng occurrence, and the utterance 
 is made within such limit of time as presumably to exclude fabrication. It 
 will be observed that this exception contemplates and permits proof of dec- 
 larations by an injured person made after the event, so that it cannot fairly 
 be said that the words spoken really constituted a part of the thing done." 
 This case was followed in the recent case of Greener v. Gen. Electric Co., 153 
 App. Div. 439. 
 
EVIDENCE 581 
 
 Q. A sues the N. Y. C. R. R. Co. for injuries sustained by the 
 closing of the gate upon him by the brakeman on the train. 
 At the trial, he offers in evidence the reply of the brakeman to 
 the exclamation of pain made by him (A) when he was hurt. 
 This is objected to. Is the objection good? 
 
 A. The objection should be sustained, as the remarks of the 
 brakeman were not a part of the res gestae. The exclamation 
 must be part of the principal fact, and so part of the act itself. 
 But here the act was complete before the remark of the brake- 
 man was made; although closely connected with it in point of 
 time, it was not one naturally accompanying the act or cal- 
 culated to unfold its character or quality, and therefore not 
 admissible as part of the res gestae. If declarations of third 
 persons are not in their nature a part of the fact, they are not 
 admissible in evidence, however closely related in point of 
 time. Butler v. R. R., 143 N. Y. 417. 
 
 Q. A was on trial for murder. The district attorney asks an 
 expert the following question: "Having heard all the testi- 
 mony adduced in this case, what is your opinion as to the 
 sanity of the defendant when he committed the crime?" The 
 defense of insanity had been interposed. The question was 
 objected to. Is the objection sustainable? 
 
 A. The objection is good; the question was improper. "The 
 witness was thus permitted to take into consideration all the 
 evidence in the case given upon a long trial extending over nine 
 days, and upon so much of it as he could recollect, determine 
 for himself the credibility of the witnesses, the probabiUty or 
 improbability of their statements, and drawing therefrom such 
 inferences as in his judgment were warranted by it, pronounce 
 upon the sanity or insanity of the defendant. We think it is 
 not competent in any case to predicate a hypothetical question 
 to an expert upon all the evidence in the case, whether he has 
 heard it all or not, upon the assumption that he then recollects 
 it, for it would then be impossible for the jury to determine 
 the facts upon which the witness bases his opinion, and whether 
 
582 EVIDENCE 
 
 such facts were proved or not." Ruger, Ch. J., in People v. 
 McElvaine, 121 N. Y. 250; McGuire v. R. R., 30 App. Div. 
 228; Becken v. Ins. Co., 99 App. Div. 10. 
 
 (Note.) " It is not sufficient to warrant the introduction of expert evidence 
 that the witness may know more of the subject of the inquiry and may better 
 comprehend and appreciate it than the jury; but the subject must be one 
 relating to some trade, profession, science or art, in which persons instructed 
 by study or experience, may be supposed to have more skill and knowledge 
 than jurors of average inteUigence may be presumed to have.'' "The general 
 rule of law is that witnesses must state facts within their knowledge, and not 
 give their opinions or their inferences. Where the facts can be placed before 
 a jury, and they are of such a nature that jurors generally are just as com- 
 petent to form opinions in reference to them and draw inferences from them 
 as witnesses, then there is not occasion to resort to expert or opinion evi- 
 dence." Earl, J., in Ferguson v. Hubbell, 97 N. Y. 507, a leading case cited 
 with approval in Dougherty v. Milliken, 163 N. Y. 527; Curtis v. R. R., 147 
 App. Div. 352; Welle v. Celluloid Co., 186 N. Y. 319; Pearee v. Stace, 207 
 N. Y. 511. 
 
 - Q. A brings an action against B to recover damages for the 
 death of C, alleged to have been caused by the negligence and 
 carelessness of B in running his automobile and knocking C 
 down, causing his death. On the trial, D, who was in court and 
 heard all the testimony on both sides, was asked by A's at- 
 torney, after qualifying as an expert, the following question: 
 "Having heard all the testimony in this case, what in your 
 opinion is the cause of C's death?" This was objected to. 
 What should be the ruling of the court? 
 
 A. The question should be excluded; the proper way is to 
 ask the expert a hypothetical question containing facts which 
 are assumed to have been proven. "In such a case, it is not 
 the province of the witness to reconcile and draw inferences 
 from the evidence of other witnesses, and to take in such facts 
 as he thinks their evidence has established, or as he can recol- 
 lect and carry in his mind and thus form and express an opin- 
 ion. His opinion may be obtained by stating to him a hypo- 
 thetical case, taking in some or all facts stated by witnesses, 
 and claimed by counsel putting the question to be estabhshed 
 by their evidence, and when the question is thus stated the 
 
EVIDENCE 583 
 
 witness has in his mind a definite state of facts, and the prov- 
 ince of the triers, whether referees or jurors, is not interfered 
 with." Reynolds v. Robinson, 64 N. Y. 589; Guiterman v. 
 S. S. Co., 83 N. Y. 358; Gregory v. R. R., 28 State Rep. 726; 
 People V. Barber, 115 N. Y. 475. 
 
 Q. A sues B. On the trial, A's attorney asks C, a witness 
 of B's, as to the whereabouts of a letter written to B by A. 
 C answers that he does not know where it is. A's attorney 
 thereupon attempts to introduce parol evidence of the letter. 
 B's attorney objects. Is the objection good? State the rule. 
 
 A. The objection is good. The rule is, that where a writing 
 is in the possession of the adverse party, he must be notified 
 to produce it at the trial, and it is only upon his failure or re- 
 fusal to do so, that parol evidence of its contents is admissible. 
 While the notice to produce is generally written, yet a verbal 
 notice given in court is sufficient where the paper is in court 
 at the time. In the question put, the paper having been in 
 the possession of the adverse party, and not being proved to 
 be in court, a notice to produce was necessary before secondary 
 evidence could be given. Kerr v. McGuire, 28 N. Y. 446; 
 Foster v. Newbrough, 58 N. Y. 481; Dole v. Belden, 1 N. Y. 
 Suppl. 667; Might v. Hicks, 61 App. Div. 489. 
 
 Q. Upon the trial of an action, the plaintiff's attorney pro- 
 duces a paper upon notice from his opponent. The latter in- 
 spects the same, but refuses to put it in evidence. Can he 
 be compelled to do so or not? 
 
 A. No. A party is not bound to read a paper in evidence, 
 simply because it was produced by the opposite party on the 
 trial at his request and was inspected by him. Carradine v. 
 Hotchkiss, 120 N. Y. 608; Smith v. Rentz, 131 N. Y. 169; 
 Reed v. Zimmerman, 48 State Rep. 637. 
 
 Q. A sues B, and on the trial B's attorney offers in evidence 
 pages one and two of a fom--page letter written by A to B. 
 
584 EVIDENCE 
 
 A's attorney objects. What should be the ruling of the court? 
 What rights has A? 
 
 A. The objection should be overruled, but A has the right 
 to offer the rest of the letter in evidence. "The introduction 
 by one party of a part of a conversation or writing in evidence, 
 renders admissible on the other side so much of the remainder 
 as tends to explain or qualify what has been received, and that 
 is to be deemed a qualification which rebuts and destroys the 
 inference to be drawn from, or the use to be made of, the por- 
 tion put in evidence." Grattan v. Ins. Co., 92 N. Y. 274; 
 Taft v. Little, 178 N. Y. 127; Sexton v. Onward Co., 93 App. 
 Div. 143. 
 
 Q. A goes to the X Bank and makes an agreement with 
 the president to make a special deposit for one year of $1,000, 
 and in a conversation with the president, it is agreed that he 
 shall receive 6% interest for that term. He deposits the money 
 and a certificate is given him in the following form: 
 
 $1,000 Oct. 1st, 1915. 
 
 Deposited this day with the X Bank by A, One Thousand 
 Dollars, payable one year from this date on presentation of 
 this certificate. 
 
 (Signed) B, Cashier. 
 
 At the end of the year A presents the certificate and demands 
 his $1,000 with interest. The bank refuses to pay the interest, 
 but tenders the $1,000. A sues for $1,000 with interest. Upon 
 the trial he offers to prove the conversation with the president. 
 Objection is made. What should be the ruling of the court? 
 No question is raised as to the power of the president to make 
 the arrangement for interest. 
 
 A. The objection must be sustained, as the evidence of an 
 oral agreement made by the president at the time of the de- 
 posit to pay interest was incompetent, because its purpose 
 was to vary the terms of the certificate of deposit. The gen- 
 eral rule (so-called parol evidence rule) is that oral evidence 
 
EVIDENCE 585 
 
 is not admissible to vary or contradict the terms of a written 
 instrument. "Had the plaintiff, after receiving the certificate, 
 made a demand for payment, and the defendants in order to 
 secure the use of the money for a longer period, had promised 
 to pay interest thereon, the plaintiff consenting, it is not ques- 
 tioned but such agreement could have been, proven and en- 
 forced. But we do not understand the record before us to 
 present such a situation. On the contrary, the writing and 
 the alleged oral agreement appear to have constituted one 
 transaction. What was said then respecting the paying of 
 interest occurred at the time of delivering the certificate. 
 And the terms of commercial paper cannot be varied by oral 
 agreements forming part of the same transaction." Read v. 
 Bank of Attica, 124 N. Y. 671. "The general rule, that evi- 
 dence of what was said between the parties to a valid instru- 
 ment in writing, either prior to or at the time of its execution, 
 cannot be received to contradict or vary its terms, applies to 
 promissory notes and bills of exchange." Jamestown Coll. 
 Assn. V. Allen, 172 N. Y. 291; Vacheron v. Hildebrant, 39 
 Misc. 62; Orange County Trust Co. v. Miller, 149 App. Div. 
 292. 
 
 Q. In an instrument partly written and partly printed, 
 there is a repugnancy between the written and printed parts. 
 Which wiU prevail? 
 
 A. The written parts will prevail. In the interpretation 
 of an instriunent of which a portion is printed and a portion 
 written, greater weight will be given to the written than to 
 the printed words, when they are in conflict and tend to dif- 
 ferent results, as the written words are supposed to more 
 safely and more nearly indicate the intention of the parties. 
 Clark V. Woodruff, 83 N. Y. 513; Kratzenstein v. Western 
 Assn. Co., 116 N. Y. 54; Collins v. Knuth, 51 App. Div. 188. 
 
 Q. A makes a contract with B to build him a house with 
 the agreement that the contractor is not to sublet any of the 
 work. B sublets a portion of the work, and afterwards sues A 
 
586 EVIDENCE 
 
 on the contract. A, on the trial, puts in evidence the agree- 
 ment to show that B had no right to sublet. B claims that 
 there was a parol agreement before the instnmaent was signed 
 that a portion might be sublet, and offers evidence of the same. 
 Is it admissible? State the rule. 
 
 A. The evidence is not admissible, as to allow it would be 
 to vary and contradict the terms of the written instrument. 
 The general rule requires the rejection of parol evidence when 
 offered to cut down or take away obligations entered into 
 between parties and by them put into writing. Mott v. Richt- 
 meyer, 57 N. Y. 49; Eighmie v. Taylor, 98 N. Y. 288; Engel- 
 horn V. Rettlinger, 122 N. Y. 176; Mead v. Dunlevie, 174 N. 
 Y. 108. 
 
 Q. A gives B a lease and subsequently a dispute arises be- 
 tween the parties in regard thereto. A claims that there was 
 an oral agreement under which the lease was delivered, and 
 on the trial of an action between the parties, offers evidence 
 to prove the same. Is the evidence admissible? 
 
 A. Yes. This is not an attempt to vary the terms of a lease, 
 and therefore does not violate the parol evidence rule; it merely 
 proves a collateral separate agreement under which it was 
 delivered, and is not inconsistent with the terms of the lease. 
 Van Brunt v. Day, 81 N. Y. 251; Reynolds v. Robmson, 110 
 N. Y. 654; Blewitt v. Boorum, 142 N. Y. 357; Davies v. Hotch- 
 kiss, 112 N. Y. Suppl. 233. 
 
 Q. A brings an action on a deed which recites a considera- 
 tion of $10,000. At the trial he offers to prove that the con- 
 sideration was not in fact $10,000, but $5,000 and the good 
 will of a certain business, and that the sum was not paid. The 
 attorney for the other side objects to the evidence. Is it ad- 
 missible? 
 
 A. Yes. "An acknowledgment of payment in the considera- 
 tion clause of a deed does not conclude the grantor. In an 
 action to recover the purchase price, he may show the actual 
 
EVIDENCE 587 
 
 consideration, that it was not paid, and the time when and 
 the manner in which it was to be paid." Hebbard v. Haugh- 
 hian, 70 N. Y. 54. Parol evidence is admissible to show the 
 real consideration of a deed even though it be entirely different 
 from the consideration expressed in the deed. This exception to 
 the parol evidence rule is well recognized. Ham v. Van Orden, 
 84 N. Y. 269; House v. Walch, 144 N. Y. 418; Bau"d v. Baird, 
 145 N. Y. 661. 
 
 Q. A agrees by valid contract in writing to sell B thirty days 
 from date, a certain pump called a pulsometer pump for $800, 
 payment to be made on deUvery, the pump to be used to pump 
 water from a mine. The pump was delivered and paid for. 
 B tried the pump, but it did not work satisfactorily, and he 
 then brings suit against A for breach of an oral warranty that 
 the pump would throw water to the surface from the bottom 
 of a shaft fifty-five feet deep. On the trial, B offered evidence 
 of the oral warranty made by A at the time the contract was 
 made. A's counsel objects to the proof of the warranty. Is 
 the evidence admissible; if so, why? 
 
 A. The evidence is admissible. The rule prohibitiag the 
 reception of parol evidence varying or modifying a written 
 agreement, does not apply where the original contract was 
 verbal and entire and a part only was reduced to writing, nor 
 does it apply to a collateral undertaking; these facts are always 
 open to inquiry and may be proved by parol. Here the evidence 
 was to prove a separate collateral agreement, a warranty, 
 which is not contradicting the terms of the instrument. "If 
 the fitness of the machine is implied, the guarantee is in har- 
 mony with it and adds nothing; if it is not implied, the paper 
 contains no declaration that the machine shall be taken with 
 all faults and insufficiencies, or at the defendant's risk. The 
 parol evidence therefore contradicts no terms of the writing, 
 nor varies it." Chapin v. Dobson, 78 N. Y. 74, followed in 
 Rontledge v. Worthington Co., 119 N. Y. 592; Bagley Co. v. 
 Saramac Co., 135 N. Y. 626; Cooper v. Payne, 186 N. Y. 334; 
 Vaughn Co. v. Lighthouse, 64 App. Div. 138. 
 
588. EVIDENCE 
 
 Q. A sold to B his entire stock and also the good will of the 
 store. A bill of sale was executed, and at the time the same 
 was signed A orally agreed not to open or be engaged in the 
 same business in the same neighborhood. Thereafter A opened 
 the same kind of business and B brought action against him. 
 On the trial he offers to prove the oral agreement that A was 
 not to open a store in the same neighborhood. A's attorney- 
 objects. How should the court rule? 
 
 A. The objection should be sustained, as this evidence would 
 tend to vary or contradict the terms of the written bill of sale. 
 If the piu-chaser desires to be protected he must expressly 
 have it so stated in the written bill of sale. Costello v. Eddy, 
 
 34 State Rep. 565, aff'd in 128 N. Y. 650; Doolittle v. Fitchett, 
 
 35 Misc. 531; Love v. Hamel, 59 App. Div. 360. 
 
 Q. In an action against B by A, a certain contract entered 
 into between B and C became relevant. At the trial A offered 
 to introduce certain oral testimony contradicting the written 
 contract between B and C. B objects. How should the court 
 rule? 
 
 A. The testimony should be allowed as the action is between 
 A and B, and the contract was between B and C. The rule 
 that parol evidence shall not be permitted to vary or con- 
 tradict the terms of a written contract, applies only in con- 
 troversies between the parties to the instnmient. Folinsbee v. 
 Sawyer, 157 N. Y. 196; City Trust Co. v. Amer. Brew. Co., 70 
 App. Div. 514; Amer. Ice Co. v. Mickel, 109 App. Div. 96; 
 Elec. Con. Co. v. Herman, 67 Misc. 396. 
 
 Q. On the trial of a larceny, B is called as a witness. Upon 
 cross-examination B is asked if he has ever been convicted of 
 burglary. He answers that he has not. How may the district 
 attorney contradict him, if at all? Give the general rule. 
 
 A. B can be contradicted either by cross-examination or 
 by the record. The question in this case is fully answered by 
 sec. 832 of the Code of Civ. Pro., which is as follows: "A person 
 
EVIDENCE 589 
 
 who has been convicted of a crime or misdemeanor is, not- 
 withstanding, a competent witness in a civil or criminal action 
 or special proceeding; but the conviction may be proved for the 
 purpose of affecting the weight of his testimony, either by the 
 record, or by his cross-examination, upon which he must answer 
 any question relevant to that inquiry; and the party cross- 
 examining him is not concluded by his answer to such a ques- 
 tion." 
 
 Q. A, who is a witness upon a certain trial is asked on cross- 
 examination whether he has ever been arrested for larceny. 
 The question is objected to. What should be the ruling of the 
 court? 
 
 A. The objection should be sustained. The question was 
 improper as the arrest was consistent with innocence; it is only 
 allowable in impeaching the credibility of witnesses on cross- 
 examination to prove their conviction of a crime. People v. 
 Gay, 7 N. Y. 378; People v. Brown, 72 N. Y. 571; People v. 
 Crapo, 76 N. Y. 288. 
 
 (Note.) A witness or a party defendant in a civil or criminal action cannot 
 be asked on cross-examination whether he has been indicted, for an indict- 
 ment is merely an accusation and no evidence of guilt. He cannot be -asked 
 if he was tried for a crime, unless it appears that he was convicted, because 
 trial followed by acquittal is but an accusation successively met, and does 
 not tend to discredit a witness and is incompetent for that purpose. Ryan v. 
 People, 79 N. Y. 594; People v. Noehlke, 94 N. Y. 137; Van BokkeUn v. 
 Berdell, 130 N. Y. 141; People v. Cascome, 185 N. Y. 317; People v. Morrison, 
 194 n! Y. 175. 
 
 Q. A, a witness, upon the trial of an action brought by B 
 against C, is asked by B's attorney whether he has been in 
 state's prison. The question is objected to. Is the objection 
 good? 
 
 A. The objection should be overruled. Being in a state's 
 prison presupposes a conviction of a crime, and therefore the 
 question is admissible in order to impeach the credibility of 
 the witness. Real v. People, 42 N. Y. 270; People v. Weiss, 
 129 App. Div. 672. 
 
590 EVIDENCE 
 
 Q. A, who is on trial for bribery, takes the stand as a witness 
 in his own behalf and is asked by the district attorney on 
 cross-examination, if it is not a fact that he has been convicted 
 of the crime of abortion some years before and sentenced to a 
 terra in prison. A answers denying any conviction. The dis- 
 trict attorney is permitted, over A's attorney's objection, to 
 introduce in evidence the record of his conviction of the crime 
 which conviction has been reversed by the Court of Appeals. 
 Was the ruling proper? 
 
 A. No. The reversal of a judgment places the parties where 
 they were before the commencement of the action. People v. 
 McLaughUn, 150 N. Y. 376. A reversal of a judgment of 
 conviction absolutely nullifies it, and places the accused in the 
 position where he was before the trial, clothed with the pre- 
 sumption of innocence. "The judgment having been reversed 
 there was no conviction against him and he was justified in 
 answering as he did, that he had never been convicted of a 
 crime. It was error for the court to allow the district attorney 
 to show that the accused at one time had been illegally and 
 wrongfully convicted of crime. This former conviction could 
 not have been proved in the ordinary way by introducing in 
 evidence a certificate of conviction of defendant. The clerk 
 of the court could have issued no such certificate because of 
 the fact that the conviction had been annulled." People v. 
 Van Zile, 80 Misc. 329. 
 
 (Note.) A pardon would not obliterate the record of conviction or blot out 
 the fact that he has been convicted, therefore in such a case it is proper to 
 prove conviction even though defendant was pardoned. People v. Carlesi, 
 154 App. Div. 481. 
 
 Q. A is on trial for assaulting B. The district attorney on 
 cross-examination asks hun if he had not assaulted C about six 
 months before. A's attorney objects to the question. How 
 should the court rule? 
 
 A. The objection should be overruled as the question was 
 proper. Facts were asked for here, not accusation or irrespon- 
 sible charges. Questions as to specific acts which tend to dis- 
 
EVIDENCE 591 
 
 credit the witness or impeach his moral character may be asked 
 on cross-examination. People v. Casey, 72 N. Y. 393; People 
 V. Irving, 95 N. Y. 541; People v. McCormick, 135 N. Y. 663; 
 People V. Webster, 139 N. Y. 73; People v. Nelson, 145 App. 
 Div. 680. 
 
 Q. A is on trial for murder. He takes the stand as a witness 
 in his own behalf. The district attorney asks him if he did not 
 commit burglary three years before in the house of M. A 
 answered No. The district attorney then began to prove 
 by other witnesses that A had committed the burglary which 
 he denied having committed. A's attorney objects to this. 
 The court overrules his objection. Is the ruling sustainable on 
 appeal? 
 
 A. The ruling cannot be sustained on appeal. This evidence 
 is inadmissible because the cross-examination as to the burg- 
 lary of M's house was collateral, and it is familiar law that the 
 people are bound by the answers of a defendant given on cross- 
 examination, and they cannot afterwards call witnesses to 
 contradict him in reference to such answers. People v. Ware, 
 29 Hun, 473, aflf'd in 92 N. Y. 653; People v. Greenwall, 108 
 N. Y. 296; People v. De Garmo, 179 N. Y. 130; People v. 
 Leonardo, 199 N, Y. 441. 
 
 Q. A was on trial for murder. B was called as a witness in 
 his (A's) behalf and gave material testimony. On cross- 
 examination the district attorney asked him if he had not stolen 
 several articles from his employer, C. B denies the accusation. 
 The district attorney is then permitted to prove by C that B's 
 answers were untrue. A's attorney excepts. What should 
 the ruUng be on appeal? 
 
 A. The judgment should be reversed. "This was error. 
 Upon cross-examination the prosecution had the right, for the 
 purpose of impairing the credit of the witness, to ask questions 
 as to those collateral matters, but having asked and obtained 
 answers, must abide by the answers given; other witnesses 
 could not be called to prove such answers untrue." Stokes 
 
592 EVIDENCE 
 
 V. People, 53 N. Y. 175. See also Potter v. Browne, 197 N. Y. 
 293; People v. Murphy, 135 N. Y. 450. 
 
 Q. A tells B's attorney that he saw C sign a certain deed on 
 a certain day. Subsequently on the trial of an action of B 
 against C, it becomes material to prove that C signed the deed. 
 A is called as a witness arid testifies that the deed was signed on 
 that day but by D. B's attorney thereupon asks A, whether 
 he did not previous to the trial tell him, the attorney, that C 
 had signed the deed. The question was objected to on the 
 ground that he was impeaching the credibility of his own wit- 
 ness. What should be the ruling of the court? State your 
 reasons. 
 
 A. The objection should be overruled, "The further ques- 
 tion has frequently arisen whether the party caUing the wit- 
 ness should, upon being taken by surprise by unexpected testi- 
 mony, be permitted to interrogate the witness in respect to his 
 own previous declarations inconsistent with his evidence. We 
 are of opinion that such questions may be asked of the witness 
 for the purpose of proving his recollection, recalUng to his mind 
 the statements he has previously made, and drawing out an 
 explanation of his apparent inconsistencies. This course of 
 the examination may result in satisfying the witness that he has 
 fallen into error, and that his original statements were correct, 
 and it is calculated to elicit the truth. It is also proper for the 
 piu-pose of showing the circumstances which induced the party 
 to call him. Though the answers of the witness may involve 
 him in contradictions calculated to impair his credibihty, that 
 is not a sufficient reason for excluding the inquiry. Proof by 
 other witnesses that his statements are incorrect would have 
 the same effect, yet the admissibility of such proof cannot be 
 questioned. It is only evidence offered for the mere purpose of 
 impeaching the credibility of the Avitness which is inadmissible 
 when offered by the party calling him. Inquiries calculated to 
 elicit the facts, or to show to the witness that he is mistaken, 
 and to induce him to correct his evidence, should not be ex- 
 cluded simply because they may result unfavorably to his credi- 
 
EVIDENCE 593 
 
 bility. In case he should deny having made previous state- 
 ments inconsistent with his testimony, we do not think it would 
 be proper to allow such statements to be proved by other wit- 
 nesses, but where the questions to such statement are confined 
 to the witness himself, we think they are admissible." Rapallo, 
 J., in Bullard v. Pearsall, 53 N. Y. 230. See also People v. 
 Kelly, 113 N. Y. 647; Vollkommer v. Cody, 177 N. Y. 129. 
 
 Q. On the trial of an action to recover damages for personal 
 injuries, A was called as a witness by the plaintiff to prove a 
 material fact. A answered different to that which he told the 
 plaintiff's attorney. The plaintiff then called B as a witness to 
 prove that which A testified to was different. This was ob- 
 jected to on the ground that plaintiff was impeaching his own 
 witness. How should the court rule? 
 
 A. The evidence shall be admitted. A party may contradict 
 his own witness as to a fact material to the cause of action al- 
 though the effect of such contradictory evidence may be to 
 discredit the witness. Coulter v. Amer. Ex. Co., 56 N. Y. 585; 
 Hunter v, Wetsell, 84 N. Y. 549. "All the cases concur in the 
 right of a party to contradict his own witness to prove a fact 
 material to the issue to be otherwise than as sworn to by him, 
 even when the necessary effect is to impeach him." Becker v. 
 Koch, 104 N. Y. 403. 
 
 Q. On the trial of an action of A against B, B calls A as a 
 witness and A gives testimony as to material facts. B being 
 dissatisfied with the effect of A's testimony calls C, who testi- 
 fies contrary to A as to the fact. Objection is made by A's 
 attorney. What should the ruling be? 
 
 A. Objection should be overruled. "A party to an action, 
 by calling the opposite party as a witness does not become 
 bound by his testimony, but may dispute specific facts so 
 testified to, although not permitted to impeach the character 
 of the witness for truth." Cross v. Cross, 108 N. Y. 628. "The 
 plaintiff urges on this appeal that the defendant having made 
 her his own witness he is bound by her testimony, under the 
 38 
 
594 EVIDENCE 
 
 rule that a party may not impeach his own witness. But 
 there is a difference between introducing evidence to establish 
 a particular fact contrary to that testified to by a party's 
 witness and evidence introduced to impeach a witness, and we 
 are persuaded under the law the defendant had a right to con- 
 tradict the plaintiff in regard to the material facts in this case, 
 although he has weakened his case by bringing out the evidence 
 of the plaintiff under his assurance that she was worthy of 
 belief." Ruhl v. Heintze, 97 App. Div. 442. 
 
 (Note.) The general rule is that an opponent's witness may be impeached 
 by evidence from other persons of his bad general reputation in his own 
 neighborhood. The witnesses for the purpose of impeachment must of course 
 come from this neighborhood and may be asked whether they know the 
 witness's general reputation in that community, and if they do, then what 
 that reputation is, and if they say it is bad, then whether they would believe 
 the witness on his oath. Greenleaf on Ev., sec. 461; Chase's Stephen's Dig. 
 on Ev. 133; Carlson v. Winterson, 147 N. Y. 652; DoUner v. Lintz, 84 N. Y. 
 669; People v. Mather, 4 Wend. 229. The rule also applies to parties to 
 actions in civil or criminal cases, becoming witnesses. Foster v. Newbrough, 
 58 N. Y. 481; People v. Greenwall, 108 N. Y. 296. 
 
 Q. A sues B. On the trial of the case, C, a witness for B, 
 testifies to a material fact. D, a witness for A, is in court, and 
 will swear that in a conversation with him C stated the fact 
 to be entirely different from the evidence he has given. A's 
 attorney says nothing to C, but calls D as a witness for A in 
 rebuttal to disprove C's testimony. B's attorney objects. 
 What should be the ruling and why? 
 
 A. The objection should be sustained. A's attorney should 
 have laid a foundation for the introduction of the contradic- 
 tory evidence, so as to give the witness an opportunity to deny 
 having made such statements in the conversation or to ex- 
 plain the alleged inconsistency. As A's attorney made no 
 attempt to lay such a foundation, the evidence offered to 
 show the contradiction was not admissible. The attention 
 of the witness must be called to the place or time or other iden- 
 tifying circumstances of the conversation in which it is claimed 
 he made statements inconsistent with his present testimony 
 
EviDENci; 595 
 
 before evidence will be received to impeach his credibility 
 by showing that he actually made contradictory statements 
 on the same subject. Pendleton v. Empire Co., 19 N. Y. 13; 
 Hart v. Bridge Co., 84 N. Y. 56; People v. Weldon, 111 N. Y. 
 569; Loughlin v. Brassil, 187 N. Y. 128. If the witness after 
 his attention has been properly called, denies having made the 
 statement or does not remember making it, then other wit- 
 nesses may be called to contradict him. Palmeri v. R. R., 39 
 State Rep. 23; Kelly v. Cohoes Co., 8 App. Div. 156. 
 
 Q. On the trial of an action wherein the defendant testi- 
 fied in his own behalf, plaintiff offered to prove by C certain 
 statements of material facts contradictory to the evidence 
 given by him on the trial, without first having inquired of him 
 on the witness stand, whether or no he had made such state- 
 ments, and on that ground the defendant's attorney objected 
 to the evidence offered. How did the court rule, and why? 
 
 A. The evidence should be admitted. "The rule which 
 makes it incumbent upon the cross-examining counsel first to 
 direct the witnesses' attention with reasonable precision to, 
 and interrogate him respecting an alleged contradictory state- 
 ment before the latter may be given in evidence does not apply 
 to parties to the action; and as to them the alleged contradic- 
 tory statement is admissible as a declaration against interest." 
 Cook V. Barr, 44 N. Y. 156; Wright v. Nostrand, 94 N. Y. 32; 
 Fisher v. Monroe, 2 Misc. 327. "A party's statement out of 
 court relevant to the issues is original evidence as an admission, 
 and may be proved without previous interrogation of the 
 witness." Boyd v. Boyd, 9 Misc. 161. 
 
 Q. On the trial of A for murder, B, a witness, testifies on cross- 
 examination that on the day of the homicide he made a state- 
 ment in writing to the chief of police and signed the same. 
 After A's counsel rested his case the written statement of B 
 was offered in evidence by the district attorney. A's attorney 
 objects. How should the court rule? 
 
596 EVIDENCE 
 
 A. The statement should be excluded as the paper was not 
 shown to the witness and he had no opportunity to examine 
 it. "It is competent for a party on the trial to prove that a 
 witness, on the part of his adversary, has made oral statements 
 inconsistent with evidence upon a material question given by 
 such witness on the trial, for the purpose of impeaching the 
 credibility of a witness, and weakening the force of the evidence. 
 But it is requisite that the party offering the impeaching evi- 
 dence should first call the attention of the witness to the cir- 
 cumstances under which the statements were made, that he 
 may have an opportunity of correcting the evidence given on 
 the trial or of explaining the apparent inconsistency between 
 his evidence and his former statements. The reason of the 
 rule applies as strongly to written as to oral statements made 
 by the witness; and when his evidence is sought to be im- 
 peached by written statements, alleged to have been made by 
 him, the writing should be first produced, so that he may have 
 an opportxmity for inspection and examination. And as the 
 writing is the best evidence of the statement made by the wit- 
 ness therein, questions as to the contents are not ordinarily 
 admissible." Gaflfney v. People, 50 N. Y. 423. After the 
 writing has been read in evidence, the witness may be examined 
 in reference to its statements. "When the writing so proven 
 is offered in evidence the court should admit it in whole or in 
 such parts as its purpose of discrediting the witness requires 
 or justifies, and it is a firmly established rule of this state that 
 it cannot be read to the jury or, provided it can be produced 
 used as a basis for a cross-examination as to its contents until 
 it is in evidence." Larkin v. R. R., 205 N. Y. 270. • 
 
 Q. A and B have some difficulty and call on C, an attorney, 
 and by his advice effect a settlement. A subsequently sues B 
 for failure to keep and perform his contract of settlement. A 
 subpoenas the attorney, C, for the purpose of showing the 
 terms of the agreement. The attorney refuses to answer on 
 the ground that he is prohibited from disclosing a profes- 
 sional communication. Is the testimony of the witness privi- 
 leged? 
 
EVIDENCE 597 
 
 A. No. "All communications made by a client to his coun- 
 sel with a view to professional advice or assistance are privi- 
 leged, whether such advice relates to a proceeding or suit pend- 
 ing or contemplated, or any other matter proper for such 
 advice or aid; but conununications made in the presence of all 
 parties to the controversy are not privileged." Britton v. 
 Lorenz, 45 N. Y. 51. "The provisions of sec. 835 of Code of 
 Civ. Pro., prohibiting an attorney from disclosing professional 
 communications made to him by his client does not apply, as 
 between the parties, to communications made by two or more 
 persons in consultation with an attorney for their mutual 
 benefit; it cannot be invoked in any litigation which may there- 
 after arise between such persons." Hurlbert v. Hurlbert, 128 
 N. Y. 420. 
 
 (Note.) Section 835 of the Code of Civ. Pro.,relating to privileged commu- 
 nications, provides as follows: "An attorney or counselor-at-law shall not be 
 allowed to disclose a communication made by his client to him, or his advice 
 given thereupon, in the course of his professional employment, nor shall 
 any clerk, stenographer or any other person employed by such attorney or 
 counselor be allowed to disclose any such communication or advice given 
 thereon." 
 
 Q. A, the wife of B, having died under circumstances point- 
 ing to poisoning, B becoming alarmed by various newspaper 
 comments and charges directed against him, goes to see a 
 lawyer, taking C, his friend, with him. B has a long conversa- 
 tion with the lawyer in C's presence. Thereafter B is indicted 
 and tried for the murder of his wife. At the trial the district 
 attorney calls C as a witness and although B's attorney objects, 
 C is allowed to testify to the conversations had in his presence. 
 B's attorney excepts. What should be the ruling on appeal? 
 
 A. The judgment should be aflSrmed. There was no error 
 in admitting the testimony. "The protection extended by the 
 Statute (Code of Civ. Pro., sec. 835), to communications be- 
 tween attorney and client does not cover communications made 
 to a friend, or to an attorney in the presence of a friend. Com- 
 munications between counsel and clients are, as between 
 themselves, protected from disclosure; but if heard by another, 
 
598 EVIDENCE 
 
 in whose presence they are made, the confidential character 
 is gone. (Jackson v. French, 3 Wend. 337.) The reason is 
 obvious. A communication intended to be confidential should 
 not be made in the hearing of a third person; unless that person 
 stood in a peculiar relation of confidence. The protection ex- 
 tended by statute to communications between attorney and 
 client is intended to cover those which the relation calls for 
 and are supposed to be confided to the lawyer, to guide him in 
 giving his professional aid and advice. I am not aware of any 
 ^extension of the rule, which would protect the revelation of 
 confidences made to a friend, or to a lawyer in the presence of 
 a friend." Gray, J., in People v. Buchanan, 145 N. Y. 1. 
 
 Q. A acted as attorney for B and C in the preparation of 
 an agreement concerning their mutual claims. Before the 
 contract was signed, it was read and discussed in the presence 
 of D, who with A witnessed its execution. Then A at B's 
 direction delivered the contract to C. B dies shortly there- 
 after. In an action between B's administrators and C, A is 
 called as a witness to testify to communications made to him 
 by B and the advice given by him to B in the transaction. 
 Objection is made to the testimony. How should the court 
 rule? 
 
 A. The testimony should be admitted. "The veil of strict 
 secrecy is thrown over communications between attorney 
 and client, when they are, presumably, of a confidential char- 
 acter, but if the evidence discloses that the circumstances 
 surrounding the transaction were such as not to warrant the 
 presumption that the communications were in confidence, the 
 Code provision is inappUcable. The rule of immunity as to 
 communications between persons sustaining the relation of 
 attorney and clients was not intended to operate where two 
 or more persons are present, or are cognizant of the attorney's 
 professional work. They are not then confidential. (Whiting 
 v. Barney, 30 N. Y. 330; Rosseau v. Bleau, 131 N. Y. 177.) 
 The reason of the rule is in the necessity of secrecy, in order 
 that persons needing professional advice, shall be encouraged 
 
EVIDENCE 599 
 
 to disclose freely and without fear, the facts upon which that 
 advice shall be given. Where it appears to the court from the 
 facts that the attorney is acting for two clients, as here, and the 
 communications are as to the preparation of an agreement 
 with respect to their mutual claims and as to its execution 
 after the terms are assented to, the rule ceases to have any 
 reasonable appUcation." Doheny v. Lacy, 168 N. Y. 213. 
 
 (Note.) " Section 835 of the Code was enacted for the protection of the 
 client and his property interests and does not authorize an attorney to refuse 
 to disclose information imparted to him in his professional capacity by a client 
 now deceased, when such information does not tend to disgrace the client's 
 memory, and will be a benefit to his estate." Matter of King v. Ashley, 96 
 App. Div. 143. 
 
 Q. A contest has arisen over a will. It is alleged that undue 
 influence has been used. The proponents offer to prove by the 
 draftsman of the will, who is an attorney, the instructions re- 
 ceived from the testator, and that they were carried out by the 
 will. Is the evidence admissible? 
 
 A. Yes. "The draftsman of a will though he is an attorney, 
 is not incompetent under sec. 835 of the Code of Civ. Pro. to 
 testify in support of the will, to the instructions received from 
 the testator in respect to the provisions to be incorporated in 
 the will." Matter of Chase, 41 Hun, 203; Matter of Austin, 
 42 Hun, 516; Matter of Barnes, 70 App. Div. 528. 
 
 Q. A brings action to set aside a deed on the ground of fraud. 
 At the trial, C, the widow of B (who is deceased), and who 
 joined with B in executing the deed is called as a witness to 
 testify as to certain conversations with B. Her testimony is 
 objected to. Should it be admitted? 
 
 A. No. C was incompetent to testify under sec. 829 of 
 the Code of Civ. Pro. which forbids persons interested in the 
 event of an action to testify as to personal transactions or 
 communications with the deceased. C was a person interested 
 in the event of the action, so long as the deed stood she was 
 estopped from setting up any right against anyone claiming 
 
600 EVIDENCE 
 
 under it, but if the deed was set aside, she would be remitted 
 to her right of dower. Sanford v. Ellithorp, 95 N. Y. 48. 
 
 Q. In proceedings for the probate of A's will which is con- 
 tested on the alleged grounds of no due publication, B, who 
 was a beneficiary under the will and who was present with 
 the testator and the two witnesses when the will was executed, 
 but took no part in the conversations between A and the wit- 
 nesses, was called as a witness on behalf of the proponent of 
 the will, and was asked to state what was done and said by A 
 at the time the will was executed. The attorney for the con- 
 testant objects to this testimony. What should be the ruling 
 of the surrogate? 
 
 A. The testimony should not be allowed. "B was under 
 our decision an incompetent witness to testify to any con- 
 versations or transaction in his presence at the time of the 
 execution and pubUcation of the will. He was one of the chief 
 beneficiaries thereunder, and was directly interested in estab- 
 Ushing due execution. What occurred at that time was a 
 transaction between the testatrix and the witness, within the 
 meaning of sec. 829 of the Code, although he took no actual 
 part in the conversation and it was wholly between the testa- 
 trix and the attesting witnesses. If active participation in 
 the conversation was necessary to exclude an interested wit- 
 ness, and he should as an observer be permitted to testify to 
 transactions in form between the deceased and third persons, 
 although such transactions were in his interest, it would fur- 
 nish an easy and convenient method in every case of evading 
 the statute. The decisions have enforced the spirit of the 
 statute by excluding such evidence, and have treated transac- 
 tions between the deceased and third persons in the presence 
 of interested parties as if the witness actually participated 
 therein. (Holcomb v. Holcomb, 95 N. Y. 316; Matter of 
 Eysamen, 113 N. Y. 62; Matter of Dunhamm, 121 N. Y. 575.)" 
 Andrews, Ch. J., in Matter of Bernsee, 141 N, Y. 391. 
 
 Q. A borrowed $10,000 of the Associated Bankers Corpora- 
 tion, and gave a 60 days' note therefor. Subsequently A died 
 
EVIDENCE 601 
 
 and B duly qualified as executor of A's estate. The Bankers 
 Corporation afterwards sued B, as executor, to recover the 
 amount of the note. B pleaded payment, and on the trial 
 gave testimony tending to prove the payment of the note by 
 A to D who was the cashier and a vice-president of the Bankers 
 Corporation. The Bankers Corporation then called D as a 
 witness, and offers to prove by him that the 'note was not 
 paid to him as claimed. This evidence was objected to on 
 the ground that D was incompetent to testify because inter- 
 ested in the event of the action. What should be the ruling 
 of the court? 
 
 A. The court should allow the testimony, as sec. 829 of 
 the Code of Civ. Pro. expressly provides that a person shall 
 not be deemed an interested party or person, or interested in 
 the event by reason of his being an officer or stockholder in 
 any banking corporation which is a party to an action. 
 
 Q. A, who is a witness on the trial of B for larceny, is asked 
 by the district attorney, if he did not assist B, the defendant, 
 in taking the goods. He refuses to answer the question. Can 
 he be compelled to do so? 
 
 A. No, as he is privileged from answering questions which 
 would tend to incriminate him. The rule is stated in sec. 837 
 of the Code of Civ. Pro., as follows: "A competent witness 
 shall not be excused from answering a relevant question, on 
 the ground only that the answer may tend to estabhsh the fact 
 that he owes a debt, or is otherwise subject to a civil suit. 
 But this provision does not require a witness to give an answer, 
 which will tend to accuse himself of a crime or misdemeanor, 
 or to expose him to a penalty or forfeiture; nor does it vary 
 any other rule, respecting the examination of a witness." 
 
 Q. A is on trial for murder. His attorney puts A's wife 
 on the stand as a witness for him. The district attorney raises 
 an objection as to her competency. The objection is sus- 
 tained by the court, and the wife's evidence is excluded. A is 
 
602 EVIDENCE 
 
 convicted and his attorney appeals on the ground that the 
 court made an error in excluding the testimony of A's wife. 
 Is the appeal good? State your reasons. 
 
 A. The appeal is good, for the wife was a competent witness 
 under sec. 2445 of the Penal Law, which is as follows: "The 
 husband or wife of a person indicted or accused of a crime is 
 in all cases a competent witness, on the examination or trial 
 of such person; but neither husband nor wife can be compelled 
 to disclose a confidential communication, made by one to the 
 other during their marriage." That the evidence of the hus- 
 band or wife against the other is admissible, except of course 
 as to confidential communication, see People v. Petmecky, 
 2 N. Y. Cr. Rep. 221, aff'd in 99 N. Y. 415; People v. Fruck, 170 
 N. Y. 204. 
 
 Q. A sues B, her husband, for an absolute divorce. On 
 the trial, she takes the stand and attempts to testify as to his 
 adultery. The husband's attorney objects. Is the objection 
 good? 
 
 A. Yes, the objection should be sustained. Section 831 
 of the Code of Civ. Pro. provides as follows: "A husband or 
 wife is not competent to testify against the other, upon the 
 trial of an action, or the hearing upon the merit of a special 
 proceeding, founded upon an allegation of adultery, except 
 to prove the marriage or disprove the allegation of adultery. 
 A husband or wife shall not be compelled, or without the con- 
 sent of the other if living, allowed to disclose a confidential 
 communication made by one to the other during marriage. 
 In an action for criminal conversation, the plaintiff's wife 
 is not a competent witness for the plaintiff, but she is a com- 
 petent witness for the defendant, as to any matter in con- 
 troversy; except that she cannot, without the plaintiff's con- 
 sent, disclose any confidential communication had or made 
 between herself and the plaintiff." See O'Hara v. O'Hara, 
 136 App. Div. 378; Sheldon v. Sheldon, 146 App. Div. 430; 
 Goldie V. Goldie, 39 Misc. 389. 
 
EVIDENCE 603 
 
 Q. A brings action against B to recover damages for the 
 alienation of her (A's) husband's affections. On the trial the 
 plaintiff offered in evidence certain statements made by her 
 husband to her before and after the action was commenced 
 to the effect that B had won his affections. Objection is made 
 to this evidence as incompetent; What should be the ruling 
 of the court? 
 
 A. The statements should not be admitted in evidence. 
 Statements of the husband and wife are not admissible in an 
 action for alienation of affections especially when made in 
 the absence of the defendant, and when forming no part of 
 any transaction had between the plaintiff and the defendant. 
 The statements did not accompany any act but were merely 
 declarations of opinion. They are not part of any res gestae. 
 Manwarren v. Mason, 79 Hun, 592; Buchanan v. Foster, 23 
 App. Div. 542. 
 
 Q. In an action upon a note against plaintiff's wife and 
 another, the defendant pleaded a gift of the interest. The wife 
 of the plaintiff was called as a witness by defendant and testi- 
 fied to a conversation with her husband when they were alone 
 relating to and tending to establish an executed gift of the 
 interest. This evidence was objected to on the ground that the 
 conversation between the husband and wife was a confidential 
 communication and prohibited by statute. How did the court 
 rule and why? 
 
 A. The evidence should be admitted. "If the communica- 
 tions were sufficient to establish and execute a gift, they were 
 material; and in any event they were business communications 
 and not confidential, nor induced by the marital relation." 
 Grossman v. Luidanan, 67 Misc. 438. "But this statute does 
 not exclude all communications between husband and wife 
 which are not had in the presence of third persons. It relates 
 only to such as are expressly made in confidence, or such as 
 spring out of and are induced by the marital relation, and are, 
 therefore, confidential in character." Sheldon v. Sheldon, 146 
 App. Div. 432. 
 
604 EVIDENCE 
 
 Q. A brings action for libel against a newspaper. The 
 libelous articles charged illicit relations between A and B. At 
 the trial the husband of A was called as a witness by defend- 
 ant and asked if he had any dispute or conversation with A 
 in relation to B. A's attorney objects. What should be the 
 ruling of the court? 
 
 A. The evidence should be excluded as incompetent under 
 sec. 831 of the Code of Civ. Pro., as it was a confidential com- 
 munication between husband and wife. "The evidence offered 
 could have no piupose useful to defendant unless it tended to 
 show that during such a conversation with her husband she 
 said or did, or omitted to say or do something, from which it 
 might be inferred that there existed an unlawful intimacy be- 
 tween her and B. A conversation on such a subject between 
 husband and wife seems to us to be clearly within the protection 
 of the statute. ... Its nature was not only confidential, but 
 it was apparently induced by the marital relation for it cannot 
 be conceived that such a topic would have been the subject 
 of discussion but for the existence of such relation between the 
 parties. Its nature and the relation of the parties forbade the 
 thought of its being told to others and the law stamped it with 
 that seal of confidence which the parties in such a situation 
 would feel no occasion to exact." Parker, J., in Warner v. 
 Press Pub. Co., 132 N. Y. 181. See also Parkhurst v. Berdell, 
 110 N. Y. 386; Millspaugh v. Potter, 62 App. Div. 521; Norris 
 V. Lee, 136 App. Div. 685. 
 
 Q. In certain condemnation proceedings commenced by 
 the city to take possession of certain lands, it becomes neces- 
 sary for A to prove his title thereto. He offers an old deed to 
 the land dated fifty years before, and also an old map showing 
 that the land in question belonged to A. He proves that these 
 papers were kept in the place where deeds are kept. The re- 
 ception of these papers in evidence is objected to. What should 
 the court do? 
 
 A. The deed and the map should be admitted in evidence 
 as ancient documents. " In some cases a map might be receiv- 
 
EVIDENCE 605 
 
 able in evidence as an ancient document, but it must purport 
 upon its face to have been executed by competent authority 
 and to have been found in the proper depository of such papers, 
 or to have been made or referred to as a part of the muniments 
 of title of the party in whose favor or against whom it is offered ; 
 or, where the maker is dead and it embraces large areas of 
 territory, to have been so generally and publicly recognized 
 to be correct as to afford safe grounds for the presumption that 
 the lot owners in making the conveyances had in view the 
 boundaries and monuments indicated upon it." Donohue v. 
 Whitney, 133 N. Y. 178. See also Cravath v. BayUs, 113 App. 
 Div. 666; Miller v. State of N. Y., 68 Misc. 607. 
 
 Q. The X Corporation began an action against B to recover 
 for certain work. B denied the allegation of the X Corporation 
 and appeared and defended the action. On the trial C and D, 
 president and secretary of the X Corporation, testified to the 
 material facts in issue. There was no other evidence given, 
 and the court instructed the jury to find for the X Corporation. 
 B appeals on the ground that the court erred in directing a 
 verdict for the plaintiff. Who wins on the appeal? 
 
 A. B wins. "The general rule is that where a witness is 
 interested in the question, although he is not impeached or 
 contradicted, his credibiUty is a question for the jury and the 
 court is not warranted in directing a verdict upon his testi- 
 mony alone. Gildersleeve v. London, 73 N. Y. 609; Elwood v. 
 W. U. Tel. Co., 45 N. Y. 549; Kavanagh v. Wilson, 70 N. Y. 
 177. The same rule applies to the testimony of two witnesses, 
 both equally interested and testifying to the same facts." 
 Saranac R. R. v. Arnold, 167 N. Y. 368. See also Abramowitz 
 V. Tenzer, 144 App. Div. 172; Hull v. Littauer, 162 N. Y. 561. 
 
 Q. On the trial of an action in the supreme court of New 
 York County, it becomes material to prove a statute of New 
 York State, a municipal ordinance of the City of New York, 
 a certain statute of Connecticut, and an act of Congress. Plain- 
 tiff's attorney asks the court to take judicial notice of all these. 
 Will the court grant his request? If so, to what extent? 
 
606 EVIDENCE 
 
 A. The New York statute will be taken judicial notice of. 
 Shaw V. Tobias, 3 N. Y. 188. The municipal ordinance will 
 not be taken notice of. Porter v. Waring, 69 N. Y. 250; People 
 ex rel. Cross Co. v. Ahearn, 124 App. Div. 840; City of N. Y. 
 V. Seely Co., 149 App. Div. 104. The statute of Connecticut 
 will not be taken notice of. Monroe v. Douglas, 5 N. Y. 447. 
 As to proof of it see sec. 942 of the Code of Civ. Pro. The 
 act of Congress will be taken notice of. Kessel v. Abbetis, 56 
 Barb. 362. 
 
 (Note.) The court can take judicial notice of nothing but facts authenti- 
 cated by the public records. So population of a town or county will be judged 
 by the last public records of same. Adams v. Elwood, 176 N. Y. 106. The 
 court has taken judicial notice of "the present unfavorable state of the real 
 estate market." Moore v. Hatfield, 71 Misc. 286. And so of all matters of 
 common or public knowledge and general customs observed in the usual 
 transaction of business, and banking, etc. Bank v. Hall, 83 N. Y. 338; 
 Hutchinson v. Manhattan Co., 150 N. Y. 250. 
 
CANONS OF ETHICS ADOPTED BY THE NEW YORK STATE BAR 
 ASSOCIATION AT ITS THIRTY-SECOND ANNUAL MEETING 
 AT BUFFALO, JANUARY 28 AND 29, 1909, AND PRESENTED 
 BY THE ASSOCIATION TO EACH PERSON ADMITTED TO 
 THE BAR OF THIS STATE PURSUANT TO A RESOLUTION 
 ADOPTED AT THE CONVENTION OF THE JUSTICES OF THE 
 APPELLATE DIVISION HELD AT ALBANY, APRIL 1, 1910 
 
 (Published by permission of the New York State Bar Association) 
 
 " There is certainly, without any exception, no profession in which so 
 many temptations beset the path to swerve from the line of strict integrity, 
 in which so many delicate and difficult questions of duty are continually 
 arising. There are pitfalls and mantraps at every step, and the mere youth, 
 at the very outset of his career, needs often the prudence and self-denial as 
 well as the moral courage, which belong commonly to riper years. High 
 moral principle is the only safe guide, the only torch to light his way amidst 
 darkness and obstruction."— GEORGE SHARSWOOD. 
 
 " Craft is the vice, not the spirit, of the profession. Trick is professional 
 prostitution. Falsehood is professional apostasy. The strength of a lawyer 
 is in thorough knowledge of legal truth, in thorough devotion to legal right. 
 Truth and integrity can do more in the profession than the subtlest and 
 wiliest devices. The power of integrity is the rule; the power of fraud is the 
 exception. Emulation and zeal lead lawyers astray; but the general law of 
 the profession is duty, not success. In it, as elsewhere, in human life, the 
 judgment of success is but the verdict of little minds. Professional duty, 
 faithfully and well performed, is the lawyer's glory. This is equally true of 
 the Bench and of the Bar."— EDWARD G. RYAN. 
 
 " Discourage litigation. Persuade your neighbors to compromise whenever 
 you can. Point out to them how the nominal winner is often a real loser — 
 in fees, expenses and waste of time. As a peacemaker, the lawyer has a supe- 
 rior opportunity of being a good man. Never stir up litigation. A worse 
 man can scarcely be found than one who does this. Who can be more nearly 
 a fiend than he who habitually overhauls the register of deeds in search of 
 defects in titles, whereupon to stir up strife and put money in his pocket? 
 A moral tone ought to be enforced in the profession which would drive such 
 men out of it."— ABRAHAM LINCOLN. 
 
 607 
 
608 CANONS OF ETHICS 
 
 CANONS OF ETHICS 
 
 Preamble 
 
 In America, where the stability of Courts and of all departments of gov- 
 ernment rests upon the approval of the people, it is peculiarly essential that 
 the system for establishing and dispensing Justice be developed to a high 
 point of efiBciency and so maintained that the public shall have absolute 
 confidence in the integrity and impartiality of its administration. The future 
 of the Republic, to a great extent, depends upon our maintenance of Justice 
 pure and unsullied. It cannot be so maintained unless the conduct and the 
 motives of the members of our profession are such as to merit the approval 
 of all just men. 
 
 II 
 
 The Canon of Ethics 
 
 No code or set of rules can be framed, which will particularize all the 
 duties of the lawyer in the varying phases of litigation or in all the relations 
 of professional life. The following canons of ethics are adopted by the 
 New York State Bar Association as a general guide, yet the enumeration of 
 particular duties should not be construed as a denial of the existence of others 
 equally imperative, though not specifically mentioned. 
 
 1. The Duty of the Lawyer to the Courts. — It is the duty of the 
 lawyer to maintain towards the Courts a respectful attitude, not for the 
 sake of the temporary incumbent of the judicial office, but for the main- 
 tenance of its supreme importance. Judges, not being wholly free to defend 
 themselves, are peculiarly entitled to receive the support of the Bar against 
 unjust criticism and clamor. Whenever there is proper ground for serious 
 complaint of a judicial officer, it is the right and duty of the lawyer to submit 
 the grievances to the proper authorities. In such cases, but not otherwise, 
 such charges should be encouraged and the person making them should be 
 protected. 
 
 2. The Selection of Judges. — It is the duty of the Bar to endeavor 
 to prevent political considerations from outweighing judicial fitness in the 
 selection of Judges. It should protest earnestly and actively against the 
 appointment or election of those who are unsuitable for the Bench; and it 
 should strive to have elevated thereto only those willing to forego other 
 employments, whether of a business, political or other character, which may 
 embarrass their free and fair consideration of questions before them for deci- 
 sion. The aspiration of lawyers for judicial position should be governed by 
 
CANONS OF ETHICS 609 
 
 an impartial estimate of their ability to add honor to the office and not by a 
 desire for the distinction the position may bring to themselves. 
 
 3. Attempts to Exert Personal Influence on the Court. — Marked 
 attention and unusual hospitality on the part of a lawyer to a Judge, uncalled 
 for by the personal relations of the parties, subject both the Judge and 
 the lawyer to misconstructions of motive and should be avoided. A lawyer 
 should not communicate or argue privately with the Judge as to the merits 
 of a pending cause, and he deserves rebuke and denunciation for any device 
 or attempt to gain from a Judge special personal consideration or favor. A 
 self-respecting independence in the discharge of professional duty, without 
 denial or diminution of the courtesy and respect due the Judge's station, is 
 the only proper foundation for cordial personal and official relations between 
 Bench and Bar. 
 
 4. When Counsel for an Indigent Prisoner. — A lawyer assigned as 
 counsel for an indigent prisoner ought not to ask to be excused for any trivial 
 reason, and should always exert his best efforts in his behalf. 
 
 5. The Defense or Prosecution of Those Accused of Crime. — It is 
 
 the right of the lawyer to undertake the defense of a person accused of crime, 
 regardless of his personal opinion as to the guilt of the accused; otherwise 
 innocent persons, victims only of suspicious circumstances, might be denied 
 proper defense. Having undertaken such defense, the lawyer is bound by 
 all fair and honorable means, to present every defense that the law of the 
 land permits, to the end that no person may be deprived of life or liberty, 
 but by due process of law. 
 
 The primary duty of a lawyer engaged in public prosecution is not to con- 
 vict, but to see that justice is done. He should avoid oppression and in- 
 justice of any kind whatsoever. The suppression of facts or the secreting 
 of witnesses capable of establishing the innocence of the accused is a public 
 wrong. 
 
 6. Adverse Influences and Conflicting Interests. — It is the duty of 
 a lawyer at the time of retainer to disclose to the client all the circumstances 
 of his relations to the parties, and any interest in or connection with the 
 controversy, which might influence the client in the selection of counsel. 
 
 It is unprofessional to represent conflicting interests, except by express 
 consent of all concerned given after a full disclosure of the facts. Within the 
 meaning of this canon, a lawyer represents conflicting interests when, in 
 behalf of one client, it is his duty to contend for that which duty to another 
 client requires him to oppose. 
 
 The obligation to represent the client with undivided fidelity and not to 
 divulge his secrets or confidences forbids also the subsequent acceptance of 
 retainers or employment from others in matters adversely affecting any 
 interest of the client with respect to which confidence has been reposed. 
 39 
 
610 CANONS OF ETHICS 
 
 7. Professional Colleagues and Conflicts of Opinion. — A client's 
 proffer of assistance of additional counsel should not be regarded as evidence 
 of want of confidence, but the matter should be left to the determination of 
 the client. A lawyer should decline association as colleague if it is objection- 
 able to the original counsel, but if the lawyer first retained is relieved, another 
 may come into the case. 
 
 When lawyers jointly associated in a cause cannot agree as to any matter 
 vital to the interest of the client, the conflict of opinion should be frankly 
 stated to him for his final determination. His decision should be accepted 
 unless the nature of the difference makes it impracticable for the lawyer 
 whose judgment has been overruled to co-operate effectively. In this event 
 it is his duty to ask the client to relieve him. 
 
 Efforts, direct or indirect, in any way to encroach upon the business of 
 another lawyer, are unworthy of those who should be brethren at the Bar; 
 but, nevertheless, it is the right of any lawyer, without fear or favor, to give 
 proper advice to those seeking relief against unfaithful or neglectful counsel, 
 generally after conununication with the lawyer of whom the complaint is 
 made. 
 
 8. Advising Upon the Merits of a Client's Cause. — ^A lawyer should 
 endeavor to obtain full knowledge of his client's cause before advising thereon, 
 and he is bound to give a candid opinion of the merits and probable result of 
 pending or contemplated litigation. The miscarriages to which justice is 
 subject, by reason of surprises and disappointments in evidence and wit- 
 nesses, and through mistakes of juries and errors of Courts, even though 
 only occasional, admonish lawyers to beware of bold and confident assurances 
 to clients, especially where the employment may depend upon such assur- 
 ance. Whenever the controversy will admit of fair adjustment, the client 
 should be advised to avoid or to end the litigation. 
 
 9. Negotiations With Opposite Party. — A lawyer should not in any 
 way communicate upon the subject of controversy with a party represented 
 by counsel; much less should he undertake to negotiate or compromise the 
 matter with him, but should deal only with his counsel. It is incumbent 
 upon the lawyer most particularly to avoid everything that may tend to 
 mislead a party not represented by counsel, and he should not undertake to 
 advise him as to the law. 
 
 10. Acquiring Interest in Litigation. — The lawyer should not pur- 
 chase any interest in the subject-matter of the litigation which he is con- 
 ducting. 
 
 11. Dealing With Trust Property. — Money of the client or other 
 trust property coming into the possession of the lawyer should be reported 
 promptly, and except with the client's knowledge and consent should not 
 be commingled with his private property or be used by him. 
 
CANONS OF ETHICS 611 
 
 12. Fixing the Amount of the Fee. — In fixing fees, lawyers should 
 avoid charges which overestimate their advice and services, as well as those 
 which undervalue them. A client's ability to pay cannot justify a charge 
 in excess of the value of the service, though his poverty may require a less 
 charge, or even none at all. The reasonable requests of brother lawyers, and 
 of their widows and orphans without ample means, should receive special and 
 kindly consideration. 
 
 In determining the amount of the fee, it is proper to consider: (1) the time 
 and labor required, the novelty and difficulty of the questions involved and 
 the skill requisite properly to conduct the cause; (2) whether the acceptance 
 of employment in the particular case will preclude the lawyer's appearance 
 for others in cases likely to arise out of the transaction, and in which there 
 is a reasonable expectation that otherwise he would be employed, or will 
 involve the loss of other business while employed in the particular case or 
 antagonisms with other clients; (3) the customary charges of the Bar for 
 similar services; (4) the amount involved in the controversy and the benefits 
 resulting to the client from the services; (5) the contingency or the certainty 
 of the compensation; and (6) the character of the employment, whether 
 casual or for an established and constant client. No one of these considera- 
 tions in itself is controlling. They are mere guides in ascertaining the real 
 value of the service. 
 
 In fixing fees it should never be forgotten that the profession is a branch of 
 the administration of justice and not a mere money-getting trade. 
 
 13. Contingent Fees. — Contingent fees, where sanctioned by law, should 
 be under the supervision of the Court in order that clients may be protected 
 from unjust charges. 
 
 14. Suing a Client for a Fee. — Controversies with clients concerning 
 compensation are to be avoided by the lawyer so far as shall be compatible 
 with his self-respect and with his right to receive reasonable recompense for 
 his services; and lawsuits with clients should be resorted to only to prevent 
 injustice, imposition or fraud. 
 
 16. How Far a Lawyer May Qo in Supporting a Client's Cause. — 
 
 Nothing operates more certainly to create or to foster popular prejudice 
 against lawyers as a class, and to deprive the profession of that full measure 
 of public esteem and confidence which belongs to the proper discharge of its 
 duties than does the false claim, often set up by the unscrupulous in defense 
 of questionable transactions, that it is the duty of the lawyer to do whatever 
 may enable him to succeed in winning his client's cause. 
 
 It is improper for a lawyer to assert in argument his personal belief in his 
 client's innocence or in the justice of his cause. 
 
 The lawyer owes "entire devotion to the interest of the client, warm zeal 
 in the maintenance and defense of his rights and the exertion of his utmost 
 learning and ability," to the end that nothing be taken or be withheld from 
 
012 CANONS OF ETHICS 
 
 him, save by the rules of law, legally applied. No fear of judicial disfavor or 
 public unpopularity should restrain him from the full discharge of his duty. 
 In the judicial forum the client is entitled to the benefit of any and every 
 remedy and defense that is authorized by the law of the land, and he may 
 expect his lawyer to assert every such remedy or defense. But it is stead- 
 fastly to be borne in mind that the great trust of the lawyer is to be per- 
 formed within and not without the bounds of the law. The office of attorney 
 does not permit, miuch less does it demand of him for any client, violation of 
 law or any manner of fraud or chicane. He must obey his own conscience 
 and not that of his client. 
 
 16. Restraining Clients from Improprieties. — A lawyer should use 
 his best efforts to restrain and to prevent his clients from doing those things 
 which the lawyer himself ought not to do, particularly with reference to their 
 conduct towards Courts, judicial officers, jurors, witnesses and suitors. If 
 a client persists in such wrongdoing the lawyer should terminate their rela- 
 tion. 
 
 17. Ill Feeling and Personalities Between Advocates. — Clients, not 
 lawyers, are the litigants. Whatever may be the ill-feeling existing between 
 clients, it should not be allowed to influence counsel in their conduct and 
 demeanor toward each other or toward suitors in the case. All personalities 
 between counsel should be scrupulously avoided. In the trial of a cause it is 
 indecent to allude to the personal history or the personal peculiarities and 
 idiosyncrasies of counsel on the other side. Personal colloquies between 
 counsel which cause delay and promote unseemly wrangling should also be 
 carefully avoided. 
 
 18. Treatment of Witnesses and Litigants. — A lawyer should always 
 treat adverse witnesses and suitors with fairness and due consideration, and 
 he should never minister to the malevolence or prejudices of a client in the 
 trial or conduct of a cause. The client cannot be made the keeper of the 
 lawyer's conscience in professional matters. He has no right to demand that 
 his counsel shall abuse the opposite party or indulge in offensive personalities. 
 Improper speech is not excusable on the ground that it is what the client 
 would say if speaking in his own behalf. 
 
 19. Appearance of Lawyer as Witness for His Client. — When a 
 lawyer is a witness for his client, except as to merely formal matters, such 
 as the attestation or custody of an instrument and the like, he should leave 
 the trial of the case to other counsel. Except when essential to the ends of 
 justice, a lawyer should avoid testifying in Court in behalf of his client. 
 
 20. Newspaper Discussion of Pending Litigation. — Newspaper pub- 
 lications by a lawyer as to pending or anticipated litigation may interfere 
 with a fair trial in the Courts and otherwise prejudice the due administration 
 of justice. Generally they are to be condemned. If the extreme circumstances 
 
CANONS OF ETHICS 613 
 
 of a particular case justify a statement to the public, it is unprofessional to 
 make it anonymously. An ex parte reference to the facts should not go beyond 
 quotation from the records and papers on file in the Court; but even in ex- 
 treme cases it is better to avoid any ex parte statement. 
 
 21. Punctuality and Expedition. — It is the duty of the lawyer not 
 only to his client, but also to the Courts and to the public to be punctual 
 in attendance, and to be concise and direct in the trial and disposition of 
 causes. 
 
 22. Candor and Fairness. — The conduct of the lawyer before the 
 Court and with other lawyers should be characterized by candor and fairness. 
 
 It is unprofessional and dishonorable for the lawyer knowingly to misquote 
 the contents of a paper, the testimony of a witness, the language or the argu- 
 ment of opposing counsel, or the language of a decision or a text-book; or 
 with knowledge of its invalidity, to cite as authority a decision that has 
 been overruled, or a statute that has been repealed; or in argument to assert 
 as a fact that which has not been proved, or in those jurisdictions where a 
 side has the opening and closing arguments to mislead his opponent by 
 concealing or withholding positions in his opening argument upon which his 
 side then intends to rely. 
 
 It is unprofessional and dishonorable to deal other than honestly with 
 the facts in takijig the statements of witnesses, in drawing affidavits and 
 other documents, and in the presentation of causes. 
 
 A 'lawyer should not offer evidence, which he knows the Court should 
 reject, in order to get the same before the jury by argument for its admissi- 
 bility, nor should he address to the Judge arguments upon any point not 
 properly calling for determination by him. Neither should he introduce 
 into an argument, addressed to the Court, remarks or statements intended 
 to influence the jury or bystanders. 
 
 These and all kindred practices are unprofessional and xmworthy of an 
 officer of the law charged, as is the lawyer, with the duty of aiding in the 
 administration of justice. 
 
 23. Attitude Toward Jury. — ^All attempts to curry favor with juries by 
 fawning, flattery or pretended solicitude for their personal comfort are un- 
 professional. Suggestions of counsel, looking to the comfort or convenience 
 of jurors, and propositions to dispense with argument, should be made to the 
 Court out of the jury's hearing. A lawyer must never converse privately 
 with jurors about the case; and both before and during the trial he should 
 avoid communicating with them, even as to matters foreign to the cause. 
 
 24. Right of Lawyer to Control the Incidents of the Trial. — As to 
 
 incidental matters pending the trial, not affecting the merits of the cause, or 
 working substantial prejudice to the rights of the client, such as forcing the 
 opposite lawyer to trial when he is under affliction or bereavement; forcing 
 
614 CANONS OF ETHICS 
 
 the trial on a particular day to the injury of the opposite lawyer when no 
 harm will result from a trial at a different time; agreeing to an extension of 
 time for signing a bill of exceptions, cross interrogatories and the like, the 
 lawyer must be allowed to judge. In such matters no client has a right to 
 demand that his counsel shall be illiberal, or that he do anything therem 
 repugnant to his own sense of honor and propriety. 
 
 26. Taking Technical Advantage of Opposite Counsel; Agreements 
 With Him. — A lawyer should not ignore known customs or practice of the 
 Bar or of a particular Court, even when the law permits, without giving 
 timely notice to the opposing counsel. As far as possible, important agree- 
 ments, affecting the rights of clients, should be reduced to writing; but it is 
 dishonorable to avoid performance of an agreement fairly made because it is 
 not reduced to writing, as required by rules of Court. 
 
 26. Professional Advocacy Other Than Before Courts. — ^A lawyer 
 openly, and in his true character may render professional services before 
 legislative or other bodies, regarding proposed legislation and in advocacy 
 of claims before departments of government, upon the same principles of 
 ethics which justify his appearance before the Courts ; but it is unprofessional 
 for a lawyer so engaged to conceal his attorneyship, or to employ secret per- 
 sonal solicitations, or to use means other than those addressed to the reason 
 and understanding to influence action. 
 
 27.. Advertising, Direct or Indirect. — The most worthy and effective 
 advertisement possible, even for a young lawyer, and especially with his 
 brother lawyers, is the establishment of a well-merited reputation for pro- 
 fessional capacity and fidelity to trust. This cannot be forced, but must 
 be the outcome of character and conduct. The publication or circulation of 
 ordinary simple business cards, being a matter of personal taste or local cus- 
 tom, and sometimes of convenience, is not per se improper. But solicitation 
 of business by circulars or advertisements, or by systematic personal can- 
 vassing is unprofessional. It is equally unprofessional to procure business 
 by indirection through touters of any kind, whether allied real estate firms 
 or trust companies advertising to secure the drawing of deeds or wills or 
 offering retainers in exchange for executorships or trusteeships to be in- 
 fluenced by the lawyer. Indirect advertisement for business by furnishing or 
 inspiring newspaper comments concerning causes in which the lawyer has 
 been or is engaged, or concerning the manner of their conduct, the magnitude 
 of the interests involved, the importance of the lawyer's positions, and all 
 other like self-laudation, defy the traditions and lower the tone of our high 
 calling, and are intolerable. 
 
 28. Stirring up Litigation, Directly or Through Agents. — It is un- 
 professional for a lawyer to volunteer advice to bring a lawsuit, except in 
 rare cases where ties of blood, relationship or trust make it his duty to do so. 
 
CANONS OF ETHICS 615 
 
 Stirring up strife and litigation is not only unprofessional, but it is indictable 
 at common law. It is disreputable to hunt up defects in titles or other causes 
 of action and inform thereof in order to be employed to bring suit, or to 
 breed litigation by seeking out those with claims for personal injuries or 
 those having any other grounds of action in order to secure them as clients, 
 or to employ agents or runners for like purposes, or to pay or reward, directly 
 or indirectly, those who bring or influence the bringing of such cases to his 
 office, or to remunerate policemen, court or prison officials, physicians, hos- 
 pital attacMs or others who may succeed, under the guise of giving disinter- 
 ested friendly advice, in influencing the criminal, the sick and the injured, 
 the ignorant or others, to seek his professional services. A duty to the public 
 and to the profession devolves upon every member of the Bar, having knowl- 
 edge of barratrous practices upon the part of any practitioner, immediately 
 to inform thereof to the end that the offender may be disbarred. 
 
 29. Upholding the Honor of the Profession. — Lawyers should expose 
 without fear or favor before the proper tribunals corrupt or dishonest conduct 
 in the profession, and should accept without hesitation employment against 
 a member of the Bar who has wronged his client. The counsel upon the 
 trial of a cause in which perjury has been committed owe it to the profession 
 and to the public to bring the matter to the knowledge of the prosecuting 
 authorities. The lawyer should aid in guarding the Bar against the admis- 
 sion to the profession of candidates unfit or unqualified because deficient 
 in either moral character or education. He should strive at all times to up- 
 hold the honor and to maintain the dignity of the profession and to improve 
 not only the law but the administration of justice. 
 
 30. Justifiable and Unjustifiable Litigations. — The lawyer must de- 
 cline to conduct a civil cause or to make a defense when convinced that it is 
 intended merely to harass or to injure the opposite party or to work oppres- 
 sion or wrong. But otherwise it is his right, and, having accepted retainer, 
 it becomes his duty to insist upon the judgment of the Court as to the legal 
 merits of his client's claim. His appearance in Court should be deemed 
 equivalent to an assertion on his honor that in his opinion his client's case is 
 one proper for judicial determmation. 
 
 31. Responsibility for Litigation. — No lawyer is obliged to act either 
 as adviser or advocate for every person who may wish to become his client. 
 He has the right to decline employment. Every lawyer upon his own re- 
 sponsibility must decide what business he will accept as counsel, what causes 
 he will bring into Court for plaintiffs, what cases he will contest in Court for 
 defendants. The responsibility for advising questionable transactions, for 
 bringing questionable suits, for urging questionable defenses, is the lawyer's 
 responsibility. He cannot escape it by urging as an excuse that he is only 
 following his client's instructions. 
 
616 CANONS OF ETHICS 
 
 32. The Lawyer's Duty in Its Last Analysis. — No client, corporate 
 or individual, however powerful, nor any cause, civil or political, however 
 important, is entitled to receive, nor should any lawyer render, any service 
 or advice involving disloyalty to the law whose ministers we are, or disrespect 
 of the judicial ofiSce, which we are bound to uphold, or corruption of any 
 person or persons exercising a public office or private trust, or deception or 
 betrayal of the public. When rendering any such improper service or advice, 
 the lawyer invites and merits stem and just condemnation. Correspondingly, 
 he advances the honor of his profession and the best interests of his client 
 when he renders service or gives advice tending to impress upon the client 
 and his undertaking exact compliance with the strictest principles of moral 
 law. He must also observe and advise his client to observe the statute law, 
 though until a statute shall have been construed and interpreted by com- 
 petent adjudication, he is free and is entitled to advise as to its validity and 
 as to what he conscientiously believes to be its just meaning and extent. 
 But above all a lawyer will find his highest honor in a deserved reputation 
 for fidelity to private trust and to public duty, as an honest man and as a 
 patriotic and loyal citizen. 
 
 Ill 
 Oath of Admission 
 
 The general principles which should ever control the lawyer in the practice 
 of his profession are clearly set forth in the following Oath of Admission to 
 the Bar: 
 I DO SOLEMNLY SWEAR: 
 
 I will support the Constitution of the United States and the Constitution 
 of the State of New York. 
 
 I will maintaui the respect due to Courts of Justice and judicial officers; 
 
 I will not counsel or maintain any suit or proceeding which shall appear 
 to me to be unjust, nor any defense except such as I believe to be honestly 
 debatable imder the law of the land. 'ir 
 
 I will employ for the purpose of maintaining the causes confided to me 
 such means only as are consistent with truth and honor, and will never seek 
 to mislead the Judge or jury by any artifice or false statement of fact or law; 
 
 I will maintain the confidence and preserve inviolate the secrets of my 
 client, and will accept no compensation in connection with his business 
 except from him or with his knowledge and approval; 
 
 I will abstain from all offensive personality, and advance no fact prejudicial 
 to the honor or reputation of a party or witness, unless required by the 
 justice of the cause with which I am charged; 
 
 I will never reject, from any consideration personal to myself, the cause 
 of the defenseless or oppressed, or delay any man's cause for lucre or malice. 
 SO HELP ME GOD.