The first question was properly disposed of own therefor, whatever. The liquors did not by the general term, (3 N. Y. Supp. 508.) belong to me; they belonged to the men that

As to the second we are unable to agree drank them. They were not bought in my with that court. Upon the trial one s., de- name, but in the name of the Valley Social scribing Andrews' place, says: “Before the Club, and bills were rendered to that organi1st of May, 1887, Andrews occupied the prem-zation for them. The club was organized ises as a saloon. The front room is used for about the 1st of June, 1887, with William D. a fruit, confectionery, and tobacco store. Harris as president, and six trustees.” It Back of that, and partitioned off, is a room further appeared that he was treasurer, and with a bar, table, and chairs." He also says: that all the moneys of the club came to his “I got whisky and ale of Andrews in the back hands, and had done so since its formation. room, and paid him for it. Some I drank The club was not incorporated; 20 or 25 men there, and some I took home and drank. Paid met together, and made the arrangements. him ten cents for that I drank there, and a Others subsequently joined, so that the presshilling for that I took home.” C., a minor ent number is 500.

C., a minor ent number is 500. Andrews took the rent, attending school, was often at this place, and and paid the wages of himself and Keeler. drank both ale and whisky, and paid for it. This he said was in pursuance of a standing Bought it for others, and paid for it. J. had ale order of the officers of the club. The matter and whisky there, and on one occasion bought of dividends has been considered by the club, half a pint of whisky for which he paid lwen- and it was upon motion decided to use the monty-five cents, and carried it away. Chase ey on hand to defend this suit, and make a divdrank there several kinds of liquor,-gin, idend of what was left when the suit is ended. whisky, and beer, and paid for it, ten cents The trial judge, in submitting the case to for gin and whisky, and five cents for beer. the jury, assumed that the liquors belonged Jones says the place was a saloon soon after to the club, and waiving the question as to it was built, and Andrews hạs always run it. the liability of the defendant for liquors sold Jones frequently drank there, bought whisky or delivered to the members of the club, said, by the glass, and paid Andrews or Keeler for in substance, “that where any person, acting it. Keeler testified that he was employed by as agent or steward of such an association, the defendant at this place, and paid by him. does, upon request of a member, deliver to a He says: "I wait on customers to cigars, person not a member liquors belonging to fruits, and confectionery, and also wait on that association, and takes pay for it, although members of the club. Since July 10th, last, from that member, the transaction constiI have delivered both ale and whisky to mem- tutes a sale within the meaning of the statbers of the club there by the drink, and took ute, and the offense charged in the indictpay therefor in cash. Have done this a good ment is complete.” In that we find no error. many times. The sales that have been made The liquor belonged to the association, not a by me have all been made by Andrews' di- legal entity as a corporation, but as joint rection." Upon cross-examination by de-owners or tenants in common. I do not say fendant of these witnesses, they described that circumstance distinguishes this case from themselves as members of the “Valley Social one where the liquor is owned by an incorClub," and it appeared that when persons porated club; that need not be considered; it not members came in with a member and is the character in which they act. Five huncalled for liquor it was supplied, but payment dred men buy a quantity of liquor; they store made by the member. It was shown that it, and appoint an agent to manage it. On neither Andrews nor the club had a license. the application of one of the 500, the agent It was refused to Andrews in May, 1887, and separates a small quantity from the mass of on the 1st of June, 1887, the club was organ- liquor, fixes its value, delivers the quantity so ized.

separated, as directed, and receives its value At the close of the plaintiff's case the de- or price in money. What is that but a sale? fendant asked to be discharged, upon the It is not an evasion of the statute, it is a vioground that there was no proof of a sale of lation of it. We have before us the scheme intoxicating liquors, ale, or wines by him, of the association and its by-laws, and can and, being refused, went into evidence. An- see that the transaction was not in conformdrews, the defendant, testified that the de- ity to either. We are therefore not called scription of the place by witness S. was cor- upon to say whether, if it had been, it would rect; that in the front room he had cigars, to- or not have relieved the defendant. The bacco, fruit, and confectionery, and that was scheme, as declared in the eighth by-law, is his own private business; that the room back that “the expenses of this club shall be susof that was leased to the “Valley Social Club" tained by voluntary contributions to its funds by himself and wife for the term of one year by the members, and the refreshments furfrom the 23d of May, 1887. He was stew-nished shall be enjoyed by the members in ard of that club. He said: "I have heard proportion to the amount contributed by each. the witnesses sworn on the part of the peo- Such contributions shall be receipted for by ple. Heard them testify that they were mem- the treasurer by certificates; and, as a means bers of the club, and procured drinks at that of adjusting the expenses equitably between place. That I do not deny in any way. None the members, such certificates shall be surof the drinks had by any of the witnesses was rendered to the employes of the club as such my property, nor did I receive any pay of my 'refreshments are consumed by such mem

bers.” In the case before us no certificates / upon whom service of process may be made were given, and none of course surrendered. in the state of New York. One Charles Oberg Nothing was done by means of which the is described in the defendant's circulars and equities between the members could be ad-time-tables, and in its list of "officers and justed. Nothing remained to be done. The agents," as its “general agent, passenger detransactions were on a cash basis. The pur-partment, 261 Broadway, New York;" and chasing money went into the hands of the of himself says he has charge “of the corretreasurer, with no other ceremony than at- spondence and business matters relating to tended a similar purchase, when, instead of carriage of passengers, but has nothing to do filling that character, he stood behind the with the freight department. The place same bar as a saloon-keeper. Liquor was described as "261 Broadway” is on a street purchased; liquor was paid for by money. corner. It has windows on Broadway and The occurrence was not exceptional, but the others on Warren street. They are inscribed members were dealt with on a cash basis; “Chicago & Alton Railroad;" “Freight and and, whether men or boys, received no other Passenger Agency, Chicago & Alton Railconsideration than is accorded to ready mon-road;" "Chicago & Alton Railroad Office." ey customers at a public bar. Whatever may These signs are several times repeated, and be the merit of the scheme prescribed by the plainly indicate that the office is a general oforganization, it has no effect here. It did fice for the transaction of general railroad not control or govern the parties.

business in connection with the defendant's We are referred to the case of Com. v. road; the carriage of passengers and freight Ewig, 145 Mass. 119, 13 N. E. Rep. 365, as constituting its entire business. The suman authority to sustain the defendant's ap- mons and complaint in this action were served peal. In that case the defendant was con- on Oberg. The defendant moved to set aside victed because the scheme on which he relied the service of the summons and complaint was deemed an evasion of the license law. “ upon the ground that the person to whom We do not regard that question as before us, the same was delivered was not a person and, if there are observations in the course of upon whom any service is authorized by the opinion of the learned court below at va- statute.” The court at special term held the riance with those already expressed, we can- service to have been well made, and upon the not yield to them. We put our decision upon proper person; saying: “Oberg was a managthe sole ground that the acts of the defend-ing agent, within the meaning of that terma ant were as charged in the indictment, in vi- as used in the Code;" but granted the motion olation of our law, and that upon the evi- for the reason that “it is not shown that the dence he was rightfully convicted.

defendant now has, or at the time of the The judgment of the general term should service had, any property within the state.” therefore be reversed, the defendant's appeal Upon appeal, the general term reversed the dismissed, and the judgment of the court of order of the special term, and denied the mosessions affirmed. All concur.

tion; the learned court considering both ques

tions. 5 N. Y. Supp. 493. It will be seen, (115 N. Y. 437)

therefore, that both courts agree that Oberg TUCHBAND 0. CHICAGO & A. R. Co.1 was, at the time of service, a managing agent (Court of Appeals of New York. Oct. 8, 1889.) | also, that the corporation was shown to have

of the corporation; the general term holding, SERVICE OF SUMMONS. Plaintiff's affidavit, in a suit against a for

property within the state. eign corporation, alleged that defendant had prop

The Code (section 432) provides “that pererty in the state, consisting of cars, office furni- sonal service of the summons upon a defendture, tickets, etc. One 0. was described in de-ant, being a foreign corporation, must be fendant's list of “officers and agents” as its “gen- made by delivering a copy thereof” (1) “to eral agent, passenger department, 261 Broadway, New York." The windows of 261 Broadway were the president, treasurer, or secretary; or, if inscribed with signs indicating that the office is the corporation lacks either of those officers, the general office for the general railroad business to the officer performing corresponding functhat defendant had property in the state, and that tions under another name." (2) To a person 0. was its “managing agent,” to allow service of designated for the purpose, in the manner summons upon him, under Code Civil Proc. N. Y. therein prescribed. (3) If there is no such $ 432, permitting service on a foreign corporation, having property in the state, by leaving a copy of person as those named in the preceding subthe summons with its “managing agent in the divisions within the state, “and the corporastate.”

tion has property within the state, or the

cause of action arose therein, to the cashier, Appeal from supreme court, general term, or director, or a managing agent of the corfirst department. L. A. Gould, for appellant. Henry Schinitt, ceded that the cause of action did not arise

poration within the state.” It being confor respondent.

in this state, we are to inquire whether, DANFORTH, J. The plaintiff's cause of first, the corporation has property within this action arose in the state of Missouri. The state. As to that, there are positive aver: defendant is a foreign corporation, and there ments in the plaintiff's papers, both general has been no designation by it of any person and specifico-general, that it has property

within the state, and specific, pointing out 1 Afirming 5 N. Y. Supp. 493.

office furniture, tickets, and other articles in



its office, and cars for transportation. Second, that the legislature intended to confine the whether Oberg, within the meaning of the remedy to him alone. The order appealed Code, supra, was a managing agent. The from should be affirmed, with costs. All defendant, like other railroad corporations, concur. necessarily has not only directors, a treasurer,

(115 N. Y. 527) and secretary, but other officers and agents.

RANDALL V. VAN WAGENEN et al.1 By these persons, or, under their direction, by others, the business of the company is con-|(Court of Appeals of New York. Oct. 8, 1889.) ducted. From the very nature of a body cor- ATTORNEY AND CLIENT - COMPENSATION — PLEADporate, service of process cannot be personal; and at common law it was made by serving settle and dismiss an action, plaintiffs' attorney

1. Where the parties plaintiff and defendant it on a proper officer, so it might come to the cannot sue them on the ground that the settlement knowledge of the company, and then proceed was collusively made for the purpose of defrauding by distress. 1 Tidd, Pr. 121. 1 Tidd, Pr. 121. Under the ing the attorney of his compensation.

2. An attorney in an action against the parties statute supra the same object was in view; to a former action, in which the attorney was emand where the corporation has an office in ployed, alleged the existence of a cause or action this state, where a substantial portion of its in favor of plaintiffs in the former action against business is transacted by a person designated which the attorney was to have half the amount by itself as a generalagent, al hough followed recovered as compensation for his services; and a by words indicating some one department, further agreement by which the attorney was to it may safely be assumed that the object of hold the entire claim as collateral security for his the statute will be accomplished. It, of compensation and other indebtedness of plaintiff's

to him; and that the parties fraudulently and colcourse, intends a “managing agent” in this lusively, and without the knowledge or consent of state; and, where a corporation created by the attorney, discontinued the action to defraud the laws of any other state does business in him of his compensation. Held, that the attor

ney's complaint sounded in tort, and could not be this state, the person who, as its agent, does construed as founded on his right as assignee of that business should be considered its manag- plaintiffs' claim. ing agent; and more especially should that be so where the forrign corporation has an

Appeal from superior court of New York office or place of business in this state, and city, general term. when that office is in charge of that person,

E. Countryman, for appellant. C. M.

Marsh, for respondents. and he there acts for the corporation. He is there doing business for it, and so manages ANDREWS, J. The suit of O'Neil and othits business. Such person is, in every sense ers against the defendant Van Wagenen was of the words used in the statute, “a managing settled and discontinued in 1877, by agreeagent.” Corporations of this description ment between the parties, without the conhave become very numerous. They carry on sent of the attorney for the plaintiffs. The an extensive business in this state. They attorney subsequently brought this action may sue in our courts, and may be required against the parties to the former action, alto answer as defendants in the same tribu-leging the existence of a cause of action on nals; and, if they have notice to do so in the contract in favor of the plaintiffs in the forsimple and summary manner prescribed by mer action against the defendant therein for statute, the ends of justice will be attained. $10,799.35, and the bringing of an action It was the duty of Oberg, the person served, thereon by him as attorney for the plaintiffs; to send the papers he received to his princi- an agreement between the plaintiffs in that pal; and it was bis declired intention to do action and their attorney to give him oneSo. It was in fact done, and the defendant half interest in the claim and in any recovappears, not to answer to the suit, but to ery, as compensation for his services, and an complain of the insufficiency of service. We ownership therein to that amount for such think the objection unavailing. The order

compensation; and a further agreement that in this case is not only directly sustained by the attorney should hold the entire claim as the case of Palmer v. Pennsylvania Co., 35 collateral security for his compensation, and Hun, 369, but is within the principle on which for other indebtedness owing by the plainHiller v. Railroad Co., 70 N. Y. 224, and tiffs to the attorney; and that the plaintiffs Pope v. Manufacturing Co., 87 N. Y. 137, made a parol assignment to the attorney of were decided. So far as the cases cited by the entire claim for these purposes. The the appellant hold a contrary doctrine, they complaint further alleges that the defendant cannot be approved. To limit service by re-Van Wagenen had notice in 1875 of the said quiring the person served, in case of an ac- agreement, and that the parties to the action tion against a railroad corporation, to be one fraudulently and collusively, and without the who controls “the general and practical op- knowledge or consent of the attorney, settled erations and business of running its road,” and discontinued the action, to cheat and dewould so restrict the meaning of the statute fraud the attorney of his interest and rights as to render it useless. Such an agent would under the agreement. It is alleged that the naturally find his occupation and engagement claim was good and collectible, and that the in the state where the road was domiciled or attorney, by reason of such fraud, has lost operated; and, if his incidental presence in the one-half interest in the claim, and also this state subjected him to process as representing the corporation, it cannot be supposed 1 Affirming 22 Jones & S., 483.

the sum of $2,350, owing by the O'Neils to It would probably be a sutficient answer to him for professional services on other mat- this position that such a construction of the ters and proceedings; and the plaintiff de- complaint was not so far as appears claimed mands judgment against the defendants for on the trial. But a more satisfactory answer $10,000. The complaint was dismissed, and is that such was not in fact the nature of the we think properly.

action. There is no contract between the So far as the claim of the plaintiff is found-O'Neils and Van Wagenen set out in the comed upon the lien which the law gives attor- plaint. It alleges by way of inducement neys for their services, there is no foundation merely that the O'Neils had a claim or defor the action. By the common law, an at- mand against Van Wagenen on contract, torney, by commencing a suit, acquires no amounting to $10,799.35, but what the conlien on the cause of action. The lien only tract was, whether the claim was for work, arises after judgment, and is a right to have labor, or services, or for money had or rethe judgment held for the debt, together with ceived, or goods sold, or upon what considerany security for the judgment, such as bail, ation the claim was founded, is not intimat. until the lien is discharged, and, to the extent ed. The pleader evidently commenced his of the lien, payment by the defendant in the action on the theory that his cause of action judgment to the plaintiff after notice, to the was ex delicto, the gravamen being the fraudprejudice of the attorney, will be no dis- ulent and collusive settlement by which he charge. Pulver v. Harris, 52 N. Y. 73; Platt was prevented froin prosecuting the action v. Jerome, 19 How. 384; Martin v. Hawks, to judgment, and thereby obtaining the fruit 15 Johns. 405; People v. New York C. P. 13 of his agreement with the O'Neils. AssumWend. 652. From the principle that there is ing that after the discontinuance of the origno lien until judgment it follows that it is inal action Randall could have brought a suit competent for the parties acting bona fide to as assignee on the contract between the settle and discontinue a suit before judgment, O'Neils and Van Wagenen, this was not without the consent of the attorney, and he such an action, and the plaintiff is not entiis remitted to his remedy against his clienttled to any strained construction of his pleadfor his compensation. Pulver v. Harris, su- ing to relieve him from a position in which pra, and cases cited. But where such settle-he intentionally placed himself. The judgment is made collusively for the purpose of ment is right, and it should therefore be afdefrauding the attorney out of his costs, firmed. All concur. courts have been accustomed to intervene, and to protect the attorney by permitting him to proceed with the suit, and, if he is

(116 N. Y. 247) able to establish a right to recover on the

EDDY et al. v. DAVIS.1 cause of action as it originally stood, to permit such recovery to the extent of his costs/(Court of Appeals of New York, Second Divis

ion. Oct. 8, 1889.) in the action. Coughlin v. Railroad Co., 71 N. Y. 443, and cases cited. And the court

VENDOR AND VENDEE_CONTRACT-TENDER. will set aside an order of discontinuance if it 1. A provision in a contract for the sale of stands in the way. This is an adequate rem- land, the price being payable by installments, edy, and we think the exclusive remedy shall, at his own expense, convey the land to the

that, on the payment of a šum named, the vendor where the suit has been fraudulently settled vendee, who shall execute a bond and mortgage by the parties before judgment to cheat the for the remaining installments, is not a mere stipattorney out of his costs. We have found no ulation for the vendee's benefit, which he waives

by failing to pay and tender a bond and mortgage case of an equitable action to enforce the in- as provided, but is a covenant by the vendor, who choate right of an attorney under such cir- cannot, after the maturity of enough of the installcumstances, and no such precedent ought, we ments to aggregate the sum upon the payment of think, to be established. See Goodrich v. Mc- which the vendee would be entitled to a deed,

maintain an action for such installments without Donald, 112 N. Y. 164, 19 N. E. Rep. 619; first tendering a deed. Talcott v. Bronson, 4 Paige, 503; Tullis v. 2. The tender of a deed, after the time fixed Bushnell, 65 How. Pr. 465. This disposes of for the conveyance, is essential to the maintenance the action in this case so far as it seeks to en- some of the installments are not due.

of an action for part of the purchase money, though force, by means of an independent and orig 3. It would not constitute a tender for the veninal suit, the equitable right of the plaintiff, dor to inform the vendee that he (the vendor) was sought to be defeated by the alleged fraudu- ready and willing to perform the contract on his

part if the vendee was ready to pay, when the venlent and collusive settlement.

dor had, after the contract was made, disabled The only other aspect of the action which himself from complete performance by conveying gives it any color of foundation is presented away other land, over which he had agreed to give by the allegation of an actual transfer to, and the vendee a right of way to the property sold.

4. An agreement by the vendor to “keep open ownership by, the plaintiff of the cause of a right of way back of” the property sold, which action embraced in the original litigation, of right of way was intended to be conveyed with the which the defendant Van Wagenen is alleged stitutes half their value, is part of the considerato have had notice, and which is to be as- tion; and, if the vendor conveys away the adjasumed as the case stands. It is claimed that cent' land without reserving the right of way, he the action may be maintained as one brought cannot recover the purchase money. by the plaintiff as assignee of the original debt owing by the O'Neils to Van Wagenen. Affirming 40 Hun, 637, memo

Appeal from an order of the general term hundred dollars and interest was for his [de: of the third judicial department, which re- fendant's] benefit, and he cuuld avail himself versed a judgment in favor of the plaintiffs of it at his option by paying such money at against the defendant, entered upon a decis- the times provided in the contract, and deion of the court at special term, and granted manding a deed and tendering a bond and a new trial. The action was brought to re- mortgage. Not having paid or made such cover from defendant unpaid installments demand or tender, and having waived his upon a contract to purchase land. Plaintiffs right to make any claim under this provision, agreed to sell to defendant a lot of land in as appears in the sixth finding of fact, the the village of Westport, upon which there contract was to be treated as if it had been was a brick store, for the sum of $1,600, omitted, and, the action having been brought payable in annual installments varying from to recover installments due, no tender of a $100 to $200. The contract provided that deed by the plaintiffs was necessary to enable possession should be given on payment of the them to maintain this action." The sixth first installment, and contained the following finding of fact referred to was as follows: provisions: “The party of the second part “That immediately before the commence[defendant] is to have one hundred feet ment of this action the plaintiffs, by their depth of land, including the store, running attorney, applied to said defendant, and ineast and west, running north and south the formed him that plaintiffs were ready and width of the store. The said parties of the willing to perform said contract on their first part agree that, on receiving the sum part, if he was ready to pay; to which deof eight hundred dollars at the time and fendant replied that he could not pay, and manner above mentioned, they will execute said he wanted to give up the property, and and deliver to the said party of the second thereupon plaintiffs commenced this action.” part, at their own proper cost and expense, a It is undisputed that, within two months good and sufficient deed of said property, by after the defendant entered into possession of the party of the second part giving to the the property, plaintiffs sold all their adjoinparties of the first part a bond and mortgage ing land, and thus put it out of their power on said property for the remaining sum un- to comply with their agreement with defendpaid. And the said party of the first part ant, and keep open a right of way to the rear agrees to keep open a right of way back of of his store; and at the time of the offer, said building. It is understood that the mentioned in the finding of fact I have quoted, party of the second part is to put up during the plaintiffs were powerless to fulfill their the coming year a building on the east end agreement. The finding, therefore, that of said store to cost not less than six hundred they were ready to perform, or that their offer dollars.” Defendant paid the first install- and defendant's refusal constituted a waiver ment under the contract, and entered into of tender of the deed, cannot be sustained. A possession, and erected the building called tender imports not only readiness and ability for by the contract. He made other pay- to perform, but actual production of the thing ments in amount about sufficient to pay the to be delivered. The formal requisite of a interest on the purchase money. At the time tender may be waived, but to establish a of the commencement of the action two in- waiver there must be an existing capacity to stallments, amounting to $300, were not due. perform. Nelson v. Elevating Co., 55 N. Y. At the time the agreement was made the 484; Lawrence v. Miller, 86 N. Y. 137; Bigler plaintiffs owned other property adjoining the v. Morgan, 77 N. Y. 318. Here there was Tot sold defendant on the north, and bounded no existing capacity, as, having sold all their on the west by the principal street of the vil- adjacent lands, plaintiffs could not perform lage, and over this property access could be their covenant “to keep open a right of way" had from the street to the rear of defendant's back of defendant's store. The conclusion of lot. In June, 1875, plaintiffs sold to one a waiver is not therefore sustained. If, howJoseph Hutchings all the rest of the property ever, the construction put upon the contract owned by them without any reservation of a by the learned trial court in the conclusion of right of way to defendant's lot, and, at the law I have quoted is correct, then the findtime of the commencement of this action, ing of a waiver of tender of performance is they owned no property over which they unimportant. Never having paid $800 of the could give a right of way to the rear of de- purchase money, defendant was not in a fendant's store.

position to demand the conveyance, and there Richard L. Hand, for appellants. Chester being in the contract, as construed by the McLaughlin, for respondent.

trial court, no covenant on the part of the

plaintiffs to deliver the deed until the full con. BROWN, J., (after stating the facts as sideration was paid, tender of the conveyabove.) The trial court found as conclusions ance as a condition precedent to recover for of law that the defendant "was not entitled unpaid installments was not necessary, and to a conveyance of property, or of such right no question as to the sufficiency of the facts to of way, until the full sum of sixteen hun- constitute a waiver of tender could legitidred dollars, the consideration provided by mately arise. Where a contract for the sale said contract, was paid; and that the provis- of land provides for partial payments of the ion in said contract for deeding the premises purchase money prior to the delivery of the to the defendant upon the payment of eight deed, the vendor may sue for such install

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