Pace.' The plaintiff produced these which they were to make thereon under papers on the trial. their contract of assignment to Burk & Jerons. When the vessel arrived, Ruger Brothers made a claim against the deThat the ruling of the justice with fendant for a breach of the charter respect to proof of the assignment was party. That claim was submitted to ar- clearly erroneous; for unless the assignbitration, and an award was made ment appeared to have been made in against the defendant in favor of Ruger writing, it was competent to prove the Brothers of $1,750, which sum the de- parol assignment accompanied by the fendant paid May 1st, 1874, to Ruger delivery of the papers. But the error Brothers, after notice to the agents of of this ruling was cured by the subsedefendant to the effect that plaintiff quent admission of testimony which held by assignment the original charter proved the delivery of the charter party party of the vessel, having advanced at the time of the payment of the thereon $1,000, and charges to Messrs. $1,000. Ruger Brothers & Co. on their re-charter of the vessel to Messrs Burk & Jerons, requesting them to withold the money awarded by the New York Produce Exchange, and pay the same to him. On the trial, the Judge refused to allow plaintiff as a witness in his own be half to show that the transfer and assignment of the charter party to him was by parol. The Justice on the trial holding that an assignment of a written instrument, or of any interest under it, cannot be proved by parol. The justice on the trial dismissed the complaint, on the ground that Ruger Brothers had no interest in the charter; they were simply to get a profit. A motion was made for a new trial upon the minutes, which was denied, upon the minutes, which was denied, but no appeal was taken from the order denying such new trial. Mann & Parsons, for applt. Beebe, Wilcox & Hobbs, for respt. Held, That the effect of the transaction between the plaintiff and Ruger Brothers was evidently to transfer to the former all interest of the latter to the charter party, and in the profits The motion for a new trial cannot be considered, as the appeal is from a judg ment only. The plaintiff's right to recover against the defendant, depends altogether upon the fact that the latter paid over to Ruger Brothers, after sufficient notice of plaintiff's rights, the awards which it is claimed belonged to plaintiff. That no objection seems to have been made to the sufficiency of the noright to recover, and it was error to tice. Plaintiff showed a prima facie dismiss the complaint on the ground stated, and the exception to the ruling was well taken; for it is apparent that whatever interest Ruger Brothers had in the charter, had been assigned to and was held by the plaintiff upon his ad least the plaintiff was entitled to the vance of $1,000, and presumptively at award made to Ruger Brothers for damages sustained by them for a breach of the charter. The judgment must be reversed and a new trial ordered. with costs to abide event. Opinion by Davis, P. J.; Brady and Daniels, J. J. concurring. 352 DIVORCE. had in the meantime entered their FIRST DEPARTMENT. " until N. Y. SUPREME COURT, GENERAL TERM, names in the hotel register, as "James H. Baldwin and wife" He kept her Megarge, applt., v. Megarge, respt. waiting for the "other person Decided May, 5, 1876. On a motion to set aside a judgment of divorce because of adultery, on the ground of fraud and collusion de fendant's affidavit is competent, though she might not testify as to her innocence on the trial. In such a case it is proper to apply by motion instead of by action. Appeal from order setting aside judgment in an action of divorce, and directing the payment of $150 by the plaintiff, as counsel fee for defendant in the action. for when it was getting late, she begged and that no harm would come of it if she remained quiet. He tried to induce her to lie down in the bedroom adjoining and rest herself, which she refused to do; but remained sitting up all night. In the morning he unlocked The parties in this suit desiring a the door, and allowed her to go home. mutual divorce were induced to apply He had in the meantime employed two to one W. H. Gale, an attorney, who of his clerks to watch himself and assured them that he could effect the defendant, and to swear to affidavits to divorce desired on the ground of the effect that they had seen defendabandonment. He was consulted by ant, on the evening of November 5, both the parties, and gave them both 1874, leave Twenty-third Street Ferry in company with a strange man, not her husband, and accompanying him to the Grand Union Hotel, where she remained in a room with him until after 10.30 P.M. Shortly afterwards plaintiff becoming suspicious of Gale, in advice in the matter. He informed the wife (the defendant) that it would be necessary for her to leave the State for two or three days in order to commence the proceedings, and advised that she should go to New Jersey. He promised that he would structed him to stop the proceedings. meet her at the New Jersey ferry to give some final advice. Accordingly in the afternoon of November 5, 1874, he met her at the Twenty-third Street Ferry, and said that it would be im portant for her to first meet a certain active person who would be at the Grand Union Hotel. She accordingly went with him to the hotel, and was shown to a sitting-room up stairs, as he said that it would be better to be in a Thereupon Gale had an interview with defendant, and by telling her that he believed plaintiff was going to leave the country, and would probably desert her and pay her nothing for her support, finally induced her to apply for a warrant for plaintiff's arrest, because of abandonment. On plaintiff's arrest Gale tried to induce defendant to insist upon his paying her more than $600, the amount private parlor free from interuption. previously agreed upon for her support, On entering he locked the door, as he this she refused to do and plaintiff was said to prevent an interruption. He released. Incensed at his arrest, plaintiff proceeded with the divorce. John R. Dos Passos, for applt. Gale informed defendant that he would send her some papers which she Held, That defendant's affidavit was was to receive, but that it was a mere competent, for even where parties matter of form. He then served upon could not be witnesses their affidavits her the summons and complaint, which were always received upon special she next day brought down to his office motions, and even though she might without opening or reading. The now be incompetent as a witness, to the complaint alleged that defendant had same extent, upon a trial of the action, committed adultery with a man named yet that would not justi y the exclusion Baldwin on the night of November of her affidavit, on an application to set 5, 1875. On the examination before aside a judgment, claimed to have been the referee she was instructed by fraudulently obtained against her. The Gale to say that she had no defence, objection that relief could only be oband that she had received the sum-tained by an action is invalid. The mons and complaint, and believing that courts have have always intervened on the action related only to the fact of motion to vindicate their own process, her having abandoned her husband's and proceedings against oppressive, home, as she had been told it did, she fraudulent, and collusive uses of them. told the referee that she had no defence. A more flagrant case of professional During her absence from the referee's misconduct, duplicity, and crime comoffice, the prepared testimony relative bined, has never been exhibited in any to her visit to the Grand Union Hotel case of this description. The judgment are given by Gale's clerks. was properly set aside as a cheat and a On the coming in of the referee's fraud, and the defendant allowed to report a judgment for absolute divorce contest understandingly the charge against the defendant because of adul-made against her in the complaint. tery was entered. Judgment affirmed. NOTARIAL CERTIFICATE. SEAL. Defendant some time after, learn- Opinion by Daniels J.; Brady J. ing, for the first time, the nature concurring. of the judgment and of the charges made against her, applied to the special term, on her own and other corroborative affidavits, setting out the above, which Gale did not attempt to deny, to have the judgment set aside, to be allowed to come in and defend, and for $150 counsel fee. Motion granted. It was urged in opposition that defendant's affidavit was incompetent as evidence on the subject of her own innocence, and further that the relief sought could be obtained only by action, and not by way of a motion to set aside the judgment. ENDORSER'S PROMISE TO PAY. Charles B. Richard and Emanuel Boas, respts., v. Conrad Boller, applt. To be admissible in evidence a notary's An endorser's promise to pay, after maturity of the paper, to be binding must be made with a full knowledge be a sufficient sealing in all cases where of all the facts. sealing is required." In 1822 the This action was brought to recover Legislature also provided "that it against the defendant as an endorser of should be lawful for certain State a foreign bill of exchange, drawn by officers to affix the proper seal by Benno Speyer, at New York, upon making an impression directly on the Mohr & Speyer, in Berlin, Germany, paper, which should be as valid as if and claimed to have been protested for made on a wafer or on wax." In 1848 non-acceptance, of which protest it was it further enacted "that in all cases also claimed the defendant had due where a seal of any court or of any notice. The protest was attempted to public officer shall be authorized or rebe proved by a notarial certificate. quired by law, the same may be affixed Upon this certificate was imprinted in by making an impression directly on blue ink, directly on the paper of the the paper as if made on a wafer or on certificate, a design or stamp of a wax;" but the Legislature further notarial seal, but the design of such says that the foregoing provision "shall seal was not impressed on the paper not extend to private seals, which shall nor upon adhesive substance attached be made as heretofore on water, wax, to the paper. The plaintiff's having re- or some similar substance." And in ceived said draft and alleged certificate the same year also enacted that the seal of protest from abroad, sent the same to the defendant, who promised to pay the draft. The plaintiff's recovered in the court below. Charles N. Hall, for the applt. Edward Salomon, for the respts. Held, The first question to be considered is the sufficiency of the proof of the demand and protest of the draft, and this depends up on the question as to whether the design of the notarial seal printed on the certificate of protest is such a seal as would authorize the reading in evidence of the certificate of protest without further proof. It was not contended upon the argument of this appeal that the certificate of protest could be received in evidence unless sealed by the notary. of any corporation authorized as required by law "may be affixed by making an impression directly upon the paper, which shall be as valid as if made on a wafer or on wax." The clear import of these enactments is to authorize the impression of the seal immediately on the paper without the intervention of any wafer, wax, or other similar substance. The impression of the seal can be made directly of the seal is impressed upon the paper upon the paper only when the design itself, and does not require any other substance to exhibit it. In the case now under consideration, the seal being merely an imprint of ink upon the surface of the paper, is neither an impres sion made directly upon the paper, as The whole course of legislation in required by our statutes, neither is it this State shows that in the absence of impression upon a wafer, wax or other statutory provisions a mere impression similar substance as required by the upon paper was not considered as a common law. Various authorities have sufficient seal. In 1815 the Legisla- been cited by the counsel for the reture enacted" that the impression of spective parties, but none of the cases the seal of any court by stamp, should seem to have any application to the Opinion by Van Brunt, J. FALSE IMPRISONMENT. DAM- N. Y. COURT OF APPEALS. In an action for false imprisonment where exemplary or punitive damages are claimed all the circumstances connected with the transacaction tending to explain the motive of defendant, are admissible in evidence. question now under consideration ex had been made, and that a proper cept the cases of the Bank of Rochester notice thereof was being given to him. v. Gray, 2 Hill, 227, and Ross v. Bedell, It is clear, therefore, that the defendant had not full knowledge of the facts 5 Duer 462, and these cases sustain the at the time of making the promise and view I have already suggested. It the same is not binding upon hin. seems, therefore, that it was error to Judgment must be reversed and a admit the certificate of protest, it not new trial ordered. being under seal, and the judgment must be reversed unless the defendant is bound by the promise which he made to pay after the maturity of the draft. Parsons on Notes and Bills, vol. I., p. 595, lays down the rule, "that a promise to pay after maturity with the full knowledge of laches is binding on the party promising without further proof of demand, protest or notice," and, at page 601, he says, "a mere promise to pay is not sufficient. Plaintiff in each case must go further and prove knowledge on the part of the party promising of the facts." The This action was brought to recover certificate of protest being excluded damages for an alleged false imprisonfrom consideration for want of a pro- ment,,and assault and battery. It apper seal, there is no evidence in the case peared that plaintiff was the clerk of that the draft was ever presented for defendant who resided at Buffalo, and acceptance or protested for non-accept- had a power of attorney authorizing ance. In considering, therefore, the him to draw checks for defendant, and defendant's promise to pay we must, was conducting his business in New therefore, assume that the case is pre- York City. He had been employed at sented without any attempt to prove a fixed salary by the year, and his emdemand or protest. A failure. to ployment ended under his contract make a demand would undoubtedly Sept. 1, 1873. Defendant wrote to be laches upon the part of the plain- him August 29, 1873, that his services. tiffs, and a knowledge of such laches would not be required another year, must be had by the defendant at but expressed a desire that he should the time of making the promise in remain in New York until September order that it should be binding. The 15th. He remained until Sept 6th. evidence in this case shows, not only On the 5th without plaintiff's knowthat the defendant had no knowledge or authority he drew $4,000 ledge of the failure of the plain- from the bank on a check signed by tiffs to make a demand, but, on the him with defendant's name, and decontrary thereof, the promise was made posited it to his own credit, taking at a time when he supposed that a pro- therefor a certificate of deposit, payper demand and protest of the draft able to his own order. He then tele |