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It was not presented until the 31st of August, | agent who succeeded him was the agent of nine days after it was received by the plaintiff. appellant "in that behalf." Under the law The defendant was, by such delay, discharged

from liability as indorser of the check, irre- applicable to the case the delay in giving apspective of any question of loss or injury. Pre- pellant notice, as alleged, discharged it from sentment in due time, as fixed by the law mer- liability as indorser, without regard to the chant, was a condition upon performance of which the liability of the defendant as indorser question of damage caused by such delay. depended, and this delay was not excused, al- The court, therefore, erred in sustaining the though the drawer of the check had no funds, demurrer to the amended fifth paragraph of or was insolvent, or because presentment would answer. have been unavailing as a means of procuring payment. Mohawk Bank v. Broderick, 10 Wend. [15] In this case our decision is strengthIN. Y.] 304; Gough v. Staats, 13 Wend. [N. Y.] ened by the principle that an agent cannot 549. A different rule obtains as between the take advantage of his position to use his holder and drawer of a check. As between them presentment may be made at any time, and de- principal's name to his own private advanlay in presentment does not discharge the liabil-tage. Furthermore the use of appellant's ity of the drawer unless loss has resulted." name in the manner indicated in indorsing In First National Bank v. Currie, supra, the agent's personal check was sufficient nothe Supreme Court of Michigan say (147 tice to those accepting such checks that the Mich. 77, 110 N. W. 501, 9 L. R. A. [N. S.] agent was exceeding his authority, or at least 701, 118 Am. St. Rep. 541, 11 Ann. Cas. 243): it was sufficient to put such persons upon in"The undertaking of the indorser of a check quiry to ascertain the extent of his authoris that, if not paid on presentation within a ity. Claflin v. Bank, 25 N. Y. 293; Allen v. reasonable time, he will pay it, provided he is Boston R. R., 150 Mass. 200-205, 22 N. E. 917, properly notified. Such reasonable time for 5 L. R. A. 716, 15 Am. St. Rep. 185. In Clafpresentation and demand for payment is admitted to be within the day following the indorse- lin v. Bank, supra, the court in effect held ment. The indorsee, as between himself and that no officer of the bank was authorized to the indorser, undertakes to demand payment certify a check when there are no funds to within the day following the indorsement, and, the drawer to meet it. if payment is not made, to give due notice of dishonor. This is his sole duty, and he does anything else at his peril. 2 Dan. Neg. Inst. § 1601; People ex rel. Port Chester Sav. Bank v. Cromwell, 102 N. Y. 477, 7 N. E. 413. The fact that there are no funds in the account against which the check is drawn does not relieve the holder from presentation and notice of dishonor to the indorser, unless it appears that the indorser knew it. 2 Dan. Neg. Inst. § 1596; 1 Morse, Banks and Banking, § 262 (8).

Nor can any officer or agent of the bank certify his own checks; for no one acting in a fiduciary capacity as trustee or agent can employ his position for his own private benefit, and where the name of the officer who certifies the check is the same as the drawer, that circumstance is sufficient to charge all perNor sons dealing with the check that they are are the rights of the indorser changed because the same person, and if such be truly the he suffered no apparent damage by reason of case, and the check were improperly certifailure to demand payment and give notice of

dishonor to him within the required time. Mo-fied, no holder could recover.
hawk Bank v. Brodreick, 13 Wend. [N. Y.] 133
[27 Am. Dec. 192]."

[12] Following the statute, and in harmony with the authority above indicated we hold that seven days was unreasonable delay in presenting the check for $244 for payment, and that the court erred in sustaining the demurrer to the amended third paragraph of

answer.

[13, 14] The gist of the amended fifth paragraph of answer is that there was unreasonable delay in notifying appellant of the dishonor of both of the checks sued upon. The answer avers that appellant was not notified until November 22d, after the dishonor of the checks on September 18 and October 14, 1913, respectively. The statute fixes the time for such notice. Section 9089y3 and 9089s3, supra. Appellee seems to rely on notice given to Elson and appellant's agent who succeeded him. We do not regard this argument as pertinent to the question of the sufficiency of the fifth paragraph of answer, further than the implied admission that the notice on November 22d was too late to bind appellant as indorser. While under the statute notice of dishonor may be given to the principal or to "his agent in that behalf," we hold that on

Under the alleged error in overruling appellant's motion for a new trial, the question is presented as to the sufficiency of the evidence to sustain the judgment. We have already indicated that Elson as agent had neither express nor implied authority to use appellant's name to indorse his own checks, and that the stamp furnished him did not give him apparent authority so to do, but clearly indicated a restriction or limitation of his authority in that behalf. 7 Cyc. 806, 807, and cases cited; Williams v. Potter, 72 Ind. 354.

[16] There is therefore a total failure of evidence to show the agent's authority to indorse the checks sued upon, or to give him apparent authority to indorse his own checks in the name of his principal. The motion for a new trial should therefore have been sustained upon the ground that the decision is not sustained by sufficient evidence, and also on the ground that it is contrary to law.

Our Uniform Negotiable Instruments Act is substantially like those of many other states where such statutes have been in force for many years. Most of the cases cited are from states having such statutes, and the decisions deal with questions involving the

The judgment is therefore reversed, with instructions to overrule the demurrers to each of the amended third and fifth paragraphs of answer, to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion.

(218 N. Y. 734)

WILSON v. C. DORFLINGER & SONS et al.

(Court of Appeals of New York. June 16, 1916.) 1. MASTER AND SERVANT 420-WORKMEN'S COMPENSATION LAW-COSTS.

The provision of the Workmen's Compensation Law (Consol. Laws, c. 67) § 24, providing that, if the State Industrial Commission or the court before which any proceedings have been brought determines that they have not been brought upon reasonable ground, it shall assess the whole cost of the proceedings upon the party who brought them, is mandatory, and requires the Court of Appeals to award costs against a party to an appeal under the act whenever the court determines that the proceedings have not been brought upon reasonable ground.

PER CURIAM. The decision handed down in this case on April 25, 1916, read as follows: "Order reversed, with costs, and claimi dismissed." Doubt having arisen as to the parties against whom the court intended to award costs by this decision, the Attorney General has moved to amend the remittitur, so as to provide for costs against the claimant only. Counsel for the appellants agrees that the remittitur should be amended by inserting therein the name of the party against whom costs are awarded, but contends that the costs should be awarded against the State Industrial Commission rather than against the claimant.

Section 23 of the Workmen's Compensation Law (Laws 1914, c. 41) provides that an appeal may be taken to the Court of Appeals under the act in all cases where such an appeal would lie from a decision of an Appellate Division "in the same manner and subject to the same limitations as is now provided in civil actions." Section 24 provides

[Ed. Note. For other cases, see Master and that if the commission or the court before Servant, Dec. Dig. 420.]

2. MASTER AND SERVANT 420-WORKMEN'S COMPENSATION LAW-COSTS.

Under Workmen's Compensation Law, § 23, providing appeal may be taken to the Court of Appeals in all cases where such an appeal would lie from a decision of an Appellate Division "in the same manner and subject to the same limitations as provided in civil actions," in cases involving no element of unreasonableness in bringing the proceedings, the award of costs is left to the discretion of the Court of Appeals, and ordinarily, in the exercise thereof, costs will not be awarded against an unsuccessful claimant, personally, but will be charged against the State Industrial Commission.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 420.]

Proceeding under the Workmen's Compensation Law by Leona Wilson for compensation for the death of her husband, William H. Wilson, against C. Dorflinger & Sons, employers, and the Knickerbocker Mutual Liability Insurance Company of New York, insurer. There was an appeal by permission from an order of the Appellate Division (170 App. Div. 119, 155 N. Y. Supp. 857), affirming an award of the State Industrial Commission, which was reversed (218 N. Y. 84, 112 N. E. 567), and the Attorney General moves to amend the remittitur. Remittitur amended. Remittitur amended. Egburt E. Woodbury, Atty. Gen., for the motion. Arthur Butler Graham, of New York City, opposed.

which any proceedings for compensation or concerning an award of compensation have been brought "determines that such proceedings have not been so brought upon reasonable ground, it shall assess the whole cost of the proceeding upon the party who has so brought them."

[1, 2] We regard this provision of section 24 as mandatory, and as requiring us to award costs against a party to an appeal under the act whenever we determine that the proceeding has not been brought upon reasonable ground. Such cases, however, are exceptional. In cases involving no element of

unreasonableness the award of costs is left by section 23 of the statute to the discretion of the court; and ordinarily in the exercise of that discretion costs will not be awarded against an unsuccessful claimant personally, but will be charged against the State Industrial Commission, which virtually represents such claimant through the Attorney General. In the present case the remittitur should be amended, so as to award costs against the State Industrial Commission.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur.

Ordered accordingly.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(218 N. Y. 730)

In re PETRIE.

In re ONEIDA STEEL PULLEY CO. et al.
(Court of Appeals of New York. June 16, 1916.)
MASTER AND SERVANT 420 - WORKMEN'S
COMPENSATION LAW-APPEAL-COSTS.

Under Workmen's Compensation Law (Consol. Laws, c. 67) § 23, providing that an appeal may be taken to the Court of Appeals under the act in all cases where such an appeal would lie from a decision of an Appellate Division, "in the same manner and subject to the same limitations as is now provided in civil actions," on an unsuccessful appeal by the employer and insurer from an order affirming an award to an injured employé, the order of affirmance by the Court of Appeals, under ordinary circumstances, should be made with costs, as is usually done on an affirmance of a final order in a special proceeding.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 420.]

On motion by the employer and insurer to recall and amend the remittitur, so as to relieve them from costs awarded on the appeal.

Motion denied.

See, also, 215 N. Y. 335, 109 N. E. 549. Jeremiah F. Connor, of New York City, and Merwin K. Hart, of Utica, for the motion.

which existed amongst the members of the
Appellate Division on the question whether
the award should be affirmed, the appeal was
entirely reasonable. The appellants miscon-
ceive the theory on which costs have been
awarded. In the per curiam opinion handed
down by this court at this time in Matter of
Wilson, 218 N. Y.
Wilson, 218 N. Y., 113 N. E. 454, it was
said:

"Section 23 of the Workmen's Compensation Law provides that an appeal may be taken to the Court of Appeals under the act in all cases where such an appeal would lie from a decision of an Appellate Division in the same manner and subject to the same limitations as is now provided in civil actions.' Section 24 provides that if the commission or the court before which any proceedings for compensation or concerning an award of compensation have been brought determines that such proceedings have not been so brought upon reasonable ground, it shall assess the whole cost of the proceeding upon the party who has so brought them.' We regard this provision of section 24 as mandatory, and as requiring us to award costs against a party to an appeal under the act whenever we determine that the proceeding has not been brought upon reasonable ground. Such cases, however, are exceptional. In cases involving no element of unreasonableness the award of costs is left by section 23 of the statute to the discretion of the court; and ordinarily in the exercise of that discretion costs will not be awarded against an

Egburt E. Woodbury, of Albany, opposed. unsuccessful claimant personally, but will be

PER CURIAM. The motion to recall and amend the remittitur, so as to relieve the employer and insurance company from costs awarded on the appeal to this court, should be denied. We affirmed the award which had been made to the claimant. The motion by the appellants to be relieved from costs on such affirmance seems to be based on the theory that such costs may only be allowed where it has been determined that the appeal was not brought upon reasonable grounds, and it is insisted that, in view of the division

charged against the state industrial commission,
such claimant
which virtually represents such
through the Attorney General."

A proper application and natural extension of the principles thus stated shows that, on an unsuccessful appeal by the employer and insurer from an order affirming an award, the order of affirmance by this court, under ordinary circumstances, should be made with costs, the same as is usually done on an affirmance of a final order in a special proceeding.

Motion denied. All concur.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(218 N. Y. 736)

In re MCINTYRE. (Court of Appeals of New York. June 16, 1916.) Proceeding under the Workmen's Compensation Law by Mary McIntyre for compensation for the death of her husband. Compensation was awarded, the award affirmed by the Appellate Division (155 N. Y. Supp. 1121), and the employer and insurer appealed by permission; the order of the Appellate Division being reversed and the claim dismissed (112 N. E. 1064). On motion to amend remittitur as to award of costs. Motion granted, and remittitur resettled, so as to provide for the award of costs against the State Industrial Commission only.

holder, is not in a position to bring an action or suit to collect.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1377, 13772, 1388; Dec. Dig. 443(1).] 2. CORPORATIONS COLLECT.

473-BONDS-RIGHT TO

The owner of corporate bonds, from whom they were procured by a stockholder in the corporation by fraud and deceit, could not sue the corporation on such bonds, since one not the holder of a negotiable instrument, but merely entitled to become the holder, cannot bring suit to collect.

39(1)—RETAINING JURISDICTION

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1842-1853, 1855; Dec. Dig. 473.] PER CURIAM. Motion to amend remittitur. EQUITY as to award of costs granted, and remittitur (112 N. E. 1064) resettled, so as to provide for the award of costs against the State Industrial Commission only. See opinion in Wilson Case (decided herewith) 218 N. Y., 113 N. E. 454.

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TO ADMINISTER FULL RELIEF.

of a bill of equitable replevin of a party owning A court of equity, which takes jurisdiction corporate bonds against a stockholder in the corporation, he having obtained the bonds from plaintiff by fraud and deceit, will not keep jurisdiction to enable plaintiff to collect the bonds, on the ground that, having taken jurisdiction, the court will keep it to administer full relief, since it can be given her as an incident to her bill plaintiff cannot have the additional relief unless of equitable replevin.

[Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 104-109, 111, 114; Dec. Dig. 39(1).] 4. JUDGMENT 572(2)-DECISION ON DEMUR

RER-CONCLUSIVENESS.

ed on demurrer, and based on the ground that A decree, dismissing plaintiff's bill, renderthe bill is defective, will not bar any proper action or actions, suit or suits, to enforce the mat

PER CURIAM. Motion to amend remittitur (112 N. E. 569) as to award of costs granted, and remittitur resettled, so as to provide for the award of costs against the State Industrial Com-ters complained of. mission only. See opinion in Wilson Case (decided herewith) 218 N. Y., 113 N. E. 454.

(218 N. Y. 736)

SHERIDAN v. P. J. GROLL CONST. CO. (Court of Appeals of New York. June 16, 1916.) Proceeding for compensation under the Workmen's Compensation Law by William Sheridan against the P. J. Groll Construction Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurer. The award of the State Industrial Commission was affirmed by the Appellate Division (155 N. Y. Supp. 859), and there was an appeal by permission, on which the order of the Appellate Division was reversed (112 N. E. 568). On motion to amend remittitur as to award of costs. Motion granted, and remittitur resettled, so as to provide for the award of costs against the State Industrial Commission only.

PER CURIAM. Motion to amend remittitur as to award of costs granted, and remittitur resettled, so as to provide for the award of costs against the State Industrial Commission only. See opinion in Wilson Case (decided herewith) 218 N. Y., 113 N. E. 454.

(224 Mass. 574)

LLOYD v. IMPERIAL MACH. STAMPING & WELDING CO. et al.

(Supreme Judicial Court of Massachusetts. Suffolk. July 12, 1916.)

1. BILLS AND NOTES 443(1) HOLDER'S
RIGHT TO COLLECT.
The right to collect a negotiable instrument
is in the holder of it; and a person who is not
the holder, but who is entitled to become the

Cent. Dig. §8 1041, 1048; Dec. Dig. 572(2).1 [Ed. Note. For other cases, see Judgment,

5. JUDGMENT 565 DISMISSAL WITHOUT PREJUDICE ON DEMURRER.

Though decree dismissing plaintiff's bill, rendered on demurrer, based on the ground that the declaration is defective, will not bar any proper suit to enforce the matters complained of, the better practice is to provide in the decree that the bill is dismissed without prejudice. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1018; Dec. Dig. 565.]

Appeal from Supreme Judicial Court, Suffolk County.

Suit by Juliet F. Lloyd against the Imperial Machine Stamping & Welding Company and others. From a decree dismissing the bill, entered on an order sustaining a demurrer filed by Louis F. Buff, a defendant, plaintiff appeals. Decree modified and affirmed.

Geo. L. Wilson, of Boston, for appellant. Wm. M. Richardson and Wm. P. Evarts, both of Boston, for appellee Buff.

LORING, J. This case comes up on an appeal from a decree dismissing the bill entered on an order sustaining a demurrer filed by the defendant Buff. In her bill the plaintiff alleged that in the summer of 1909 she became the owner of seventy-one first mortgage bonds of the defendant Welding Company; that these bonds were part of an issue of seven hundred bonds secured by a mortgage of certain rights in an invention, future improvements thereon and patents se

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[1, 2] The foundation of the plaintiff's bill is a right on her part to collect from the Welding Company the principal of her bonds or (if that is not now due) the amount of the interest coupons which have matured. It is the settled law of this commonwealth that the right to collect a negotiable instrument is in the holder of it. Nat. Pemberton Bank v. Porter, 125 Mass. 333, 28 Am. Rep. 235; Lowell v. Bickford, 201 Mass. 543, 88 N. E. 1, and cases cited.

From this it follows that a person who is not the holder of a negotiable instrument but who is entitled to become the holder of it is not in a position to bring an action or suit to collect it. On the face of the bill the plaintiff is not now the holder of the seventy-one bonds here in question. Putting her allegations at the highest she has a right to become the holder of those bonds.

curing the same, together with drawings, | as stockholder in the corporation which the patterns, machines, machinery and equip- plaintiff desires to reach and apply "in payment for the manufacture of the machines ment of her said claim against the defendant covered by the invention and patent; that Buff." after making the mortgage the Welding Company by an indenture dated September 5, 1911, transferred the exclusive right, title and interest to the property covered by the mortgage to the defendant Buff and another, in consideration of and conditioned upon the grantees paying a royalty therein described for all machines manufactured and sold by them under the patent. It is further alleged that by said royalty indenture the Welding Company agreed that Buff and his associate might have the mortgage securing the seven hundred bonds aforesaid discharged at their own sole expense, and coupled with that authority was an agreement by Buff and his associate that they would "indemnify and save harmless" the Welding Company "from any loss, cost, charges, expenses, damages, suits, actions and proceedings at law or equity" which the Welding Company "may bear, sustain, be at or be put to, for or by reason or on account of the said bond mortgage" aforesaid, "or the rights of any holders of any bonds issued thereunder." The bill then alleged that in March, 1914, the defendant Buff procured possession of the plaintiff's bonds through fraud and deceit; but that the defendant Buff claims that he purchased the bonds from the plaintiff at that time. It is then alleged that the mortgage was foreclosed in April, 1915. It is averred that the mortgage contained a provision that in case of a foreclosure of the mortgage "the principal of all outstanding bonds should forthwith become due and payable notwithstanding anything contained in said bonds" (and it appears from an inspection of the bonds that there is nothing to that effect in the bonds). It is averred that by reason of the foreclosure and by virtue of this provision in the mortgage, the principal sum of the seventy-one bonds aforesaid has become due and payable and that the Welding Company now owes the plaintiff the principal of said bonds and the unpaid interest coupons thereto attached. It is then alleged "that upon judgment being rendered therefor against the defendant Welding Company, said company is entitled to recover over against the defendant Buff the amount of said judgment; that Buff controls the Welding Company and for that reason that the Welding Company would not enforce its right to recover indemnity from Buff "in respect of any judgment the plaintiff might obtain against said corporation in an action at law"; and that the Welding Company is insolvent. It is then alleged that Buff is the owner of a valuable interest

[3] The bill does not contain the allegations which are necessary to make it a bill of equitable replevin. The most favorable assumption for the plaintiff is that it might be amended into such a bill. Treating the bill as so amended, the plaintiff cannot have the relief sought in this bill unless the relief here sought would be given to her as an incident to a bill of equitable replevin. It is plain that a court of equity which had taken jurisdiction of this bill as a bill of equitable replevin but would not keep jurisdiction for the purpose of giving to the plaintiff the relief which she seeks in this bill on the ground that having taken jurisdiction of the cause it would keep jurisdiction to administer full relief.

It follows that the bill in this suit is bad. Until the plaintiff becomes the holder of them she has not the right to collect these bonds. In addition if that objection were removed by amending the bill so as to make it a bill of equitable replevin, the relief here sought is not an incident to such a bill.

Under these circumstances, it is not necessary to consider the further difficulties which lie in the plaintiff's path in her en*deavor to collect the amount of these bonds from the defendant Buff.

[4, 5] A decree dismissing this bill would not be a bar to any proper action or actions, suit or suits, to enforce the matters here complained of. Capaccio v. Merrill, 222 Mass. 308, 110 N. E. 626. In spite of that the better practice is in such a case to provide in the decree that the bill is dismissed without prejudice. The decree should be modified in that way, and so modified should be affirmed. It is so ordered.

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