so on; but such an apprehension is not in chief. It is a matter of discretion at well founded. There can only be one the trial. record of deeds, mortgages, and other Motion denied and judgment ordered homogeneous instruments, no matter on verdict, with costs. in how many books they may be con Opinion by Learned, P. J.; Bockes, tained.

and Boardman, J.J., concurring. The judgment must be reversed and a new trial granted with costs to abide the event.

PRINCIPAL AND AGENT. CON Opinion by Gilbert J.; Mullin P. TRACT BY SPECIALTY. J., and Smith J. concurring.


Briggs, et al., applts., v. Partridge, COMMISSION TO EXAMINE WIT. et al., respts. NESSES.

Decided March 21, 1876. N. Y. SUPREME COURT, GENERAL TERM Only those persons can be sued on an THIRD DEPARTMENT.

indenture, who are named as parties

thereto. Beebe et al., v. Winne.

The doctrine applied to simple conDecidid May, 1876.

tracts, executed by an agent for an Irregularities in the return to a com

unknown principal, that the princimission should be taken advantage of pal is liable thereon, cannot be ex

tended to contracts under seal. by a motion before trial. Consent to the issue of a second com

This action was brought to recover mission is not a suppression of the the purchase money agreed to be paid first.

by and under a contract for the sale of Both may be read in evidence, in the

land. The contract was written, and discretion of the court.

was signed, under seal, by one H., the Motion for a new trial.

Two commissions were issued on the purchaser. There was nothing upon part of the defendant, to examine the

the face of the agreement to show that same person. On the trial the defend- defendant P. was in any way connected ant gave in the second, and with or interested in the purchase. The the plaintiff then, under objection, gave H., and the former, when he made and

covenants were between plaintiff and in evidence the evidence taken under

executed them did not know that H. the first, Held, That the objection that there was acting as the agent of defendant P.

It appeared that H. was acting in the were irregularities, should have been taken advantage of by motion, before transaction under oral authority from

P. to make the contract for him, and the trial. Consent to a second commission was not a suppression of the first, that P. furnished the money to make There was no order for suppression. the payment made when the agreement The evidence under the first commis- was signed. The vendor remained in sion was direct evidence on the trial. possession of the land, and no act of

ratification of the contract on the part It was as if the defendant had examin

of P. was shown. ed a witness, and the plaintiff had crossexamined him, and then the plaintiff

Edward D. McCarthy for applts. had recalled the witness and examined Wm. F. Shepard for respts.

lleld, That H. was bound to plaintiff by the agents not “contiguous” under as covenantor upon the covenants in a clause in the policy, which forbid the agreement, but that the covenant such manufacture“ within the building could not be treated as, or made the or contiguous thereto," and which also covenant of P. Only those persons forbid its “use for lighting ” “ unless can be sued on an indenture who are by special agreement endorsed on the named as parties, and an action will policy.” September 12, 1873, the not lie against one person on a cove agents surrendered their agency of nant which purports to have been made which fact plaintiff was ignorant until by another. 10 Wend., 88; 4 Hill, after the loss occurred, and the agents. 81.

continued to treat with plaintiff as Also held, that the contract could not such agents until after the tank was be turned into and enforced as the sim- put in. In November plaintiff put in ple contract of a defendant, in the ab- a tank and pipes and connected them sence of proof that he had received any with pipes in the building, the agents benefit from the contract, or had in any being present at the time. way ratified it, (7 Cush., 374,) and Monell for the plaintiff. therefore that the doctrine applied to Muller for the defendant. simple contracts executed by an agent Held, That a general agent may for an unnained principal, could not be waive by parol a condition of the policy, so extended as to apply to this case. even where the policy provides that

Judgment of General Term, affirm- the waiver must be in writing. Pering jndgment dismissing complaint, af- mission to generate gasoline must be firmed.

taken to include " its use for lighting.” Opinion by Andrews, J.

The condition that may waiver must be

endorsed on the policy, may be waived FIRE INSURANCE. WAIVER. by a general agent. The plaintiff N. Y. SUPREME Court, GENERAL TERM, acted in good faith, the defendant's THIRD DEPARTMENT,

agents gave permission to generate Arkell, respt., v. Commerce Insur- gas, and were present when the apance Company, applt.

paratus was put in; it would be unDecided May, 1876.

just that defendant's agents should lead A general agent may waive by parol a plaintiff' to an act under the assurance

condition of a policy even where the that it would not affect the policy, and policy provides that the waiver must that the defendant should be allowed be in writing.

to set up such act to defeat a recovery. A company held to be bound by acts of

Judgment affirmed with costs. an agent after surrender of his agency, the insured being ignorant Opinion by Learned, P. J.; Bockes of such surrender.

and Boardman, J. J. concurring. Action on a policy of insurance. In the spring of 1873 plaintiff applied to

DEBTOR AND CREDITOR. the agents of defendant at Canajo- n. Y. SUPREME Court. Gen’ı Term. harie for permission to make gas from

FIRST DEPARTMENT. gasoline which was granted, provided

Levi Goldenburg et al., respts., v. Jathe tank was placed fifty feet from the building, that distance" being deemed cob Hoffman, et al., applts.




Decided May 5, 1876.

IIoffnan & Wineburg, of Providence, Where a third person purchases from R. I., for valuable consideration hereby certain crelitors of a failing debtor his


with Messrs. Wineburg & debts at a stipulated per centum, and Brother, of Worcester, Mass., and with takes an assignment to himself, and such third person acts, not as agent each other to sell, assign, and transfer for the debtor, but purely in his own unto them all our claims against the behalf, the lebts are not compromised said IIoffinan & Wineburg on their in such manner that one creili, paying to

us twenty-five per cent. enforce any balunce of the indebtedness by proving simply thereof in caslı, and their notes for that some other creditors received twenty-five per centendorsed by the more than himself upon the sale of said lloffinan & Wineburg at four and his claim.

eight months in equal installments, Appeal from a judgment entered bearing date the first of July, 1873, on the report of a referee in favor of witness our hands and seals the 12th plaintiff. This action was brought to day of June, 1873.” recover of Jacob Hoffman and Julius

This agreement was subscribed by a Wineburg, two of the defendants com- large number, but not by all the crediposing the firm of lloffman & Wine

Wineburg & Brother paid the burg, and transacting business in Pro- twenty-five per cent. in cash, and gave vidence, Rhode Island, for goods sold the notes for the remaining twenty-five and delivered by plaintiffs to them,

per cent. in accordance with the agreeand also to recover against the other

ment, endorsed by said Hoffnan & defendants, Henry and William Wine Wineburg; and afterwards by an inburg, composing the firm of Wineburg strument set forth in the case Hoffman Brothers, Worcester, Mass., on the & Wineburg sold and transferred to ground that they had assumed and Winebury & Brothers all their stock of agreed to pay the debts of IIoffinan &

goods of every kind, nature and Wineburg. The answer set up a description in their store at Providence, general denial.

On the trial before Rhode Island, in consideration of their the referee the following facts ap- services in effecting a settlement of the peared :

co-partnership debts of ILoffman & That in the year 1873 Iloftian & Wineburg, and of obtaining the release Wineburg being in embarassed circum- from the creditors of said firin of their stances made an arrangement with

partnership debts. Wineburg & Brother, who undertook with them to purchase from their

The plaintiffs were paid by Winevarious creditors their respective claims burg & Brother the amount of the inagainst them, in consideration of the debtedness of IIoffiman & Winebury, transfer to them by Hoffman & Wine- stipulated for in the agreement first burg of their stock of goods at Pro- mentioned. It was proved on the trial vidence. Wineburg & Brother entered that some of the creditors of Hoffman into an agreement with various credi- & Wineburg, amongst whom two who tors of Hoffinan & Wineburg in- had signed the agreement first above cluding the plaintiffs, which is set forth mentioned, were paid more than fifty in the case in the following words: per cent.; and the referee upon the

“ We, the undersigned creditors of proof has found that all the defendants


in this action were liable for the full Judgment reversed, new trial orderamount of the indebtedness of Hoffinan ed, costs to abide event. and Wineburg to the plaintiff.

Opinion by Davis, P. J.; Brady Wm. Strauss, for the respt.

and Daniels J. J. concurring. C. A. Runkle, for the applt.

Teld, The transaction is one where USURY. ASSIGNEE IN BANKa third person steps in and purchases RUPTCY. RIGIIT OF TO REfrom the creditors of a failing debtor COVER. EXCESS OF LAWFUL his debts at a stipulated per centum, INTEREST. and takes an assignment to himself.

N. Y. COURT OF APPEALS. No fraud is shown on the part of Wine

Wheelock, assignee, &c., respt., v. burg & Brothers, which would enable

Lee, applt. the plaintiff's to rescind the sale. If a third person is acting purely as the An action to recover the excess of in

Decided February 22, 1876. agent of the debtor, and takes the

terest unlawfully eracted from the assignment for the benefit of the debtor,

bankrupt, may be maintained by his and that fact clearly appears, the assignee in bankruptcy, but he must assigninent may doubtless be consider pay or offer to pay the loan as a coned as in substance a compromise made

dition precedent; he is not a bor

rower within the meaning of our by the debtor himself; but if he takes

statute. the title of the debt to himself for the

This action was brought by the valuable consideration paid by himself, I plaintiff as assignee in bankruptcy of so that he is at liberty to enforce it T. & Co. to recover excess of interest himself against the original debtor the paid, within a year before the comtransaction is one of purchase and sale mencement of the action, by the bankwherein the liability of the debtor rupts to defendant on usurious loans passes from the original creditor to the made by him to them, and also that purchaser, and the debt is not com- certain notes of third persons, which promised in such manner that the had been turned out to defendant by

enforce any T. & Co., as collateral security for balance of the indebtedness, by proving certain usurious loans, be delivered up, simply that some other creditors re- and that a note for $1,200, given for ceived more than himself upon the sale one of the loans by T. & Co., be deof his claim.

The proofs do not show clared void and cancelled. It appeared that the transactions between Wine from the evidence that the money burg & Brother and the creditors of loaned T. & Co. by defendant exceedHotlinan and Wineburg was in its ed the amount he had received inlegal effect a compromise for the cluding the excessive interest. No benefit of the debtors.

tender or offer to pay the balance was We do not see any grounds upon made by plaintiff. The court found which a recovery could be had in the usury and granted the relief asked. this action as against Henry and Defendant's counsel requested the Williain Wineburg, but perhaps facts court to find that the loan was not fully may be shown upon a new trial sufli

. paid. The request was refused. cient to uphold a recovery against the B. E. Valentine, for the respt. otlier defendants.

George W. Van Slyck, for the applt.


original creditor

Held, error, As this fact was material' tiffs that the goods were wanted for her and had been proved without conflict nephew. that plaintiff was bound to pay the sun On the trial defendant was asked the loaned as a condition to granting equit- question : “ Did you communicate the able relief in respect to the securities fact to Mr. Perkins (one of the plainlield by defendant, that the right given tiffs) that you had no control of the by the statute to equitable relief with goods in that store, and, if so, what did out such payment is contined to the you say on that subject ?” borrower and within the meaning of The question was objected to on the the statute, and that plaintiff was not a ground that it was re-opening the case, borrower (7 Hill 891; 1 N. Y., 27+; 2 and the objection was sustained by the id. 131 ; 14 id. 94, 19 id. 373 ; 1 R. S. referee. 772; 2 Seld. 113).

Evidence was given by plaintiff's Also held, That an assignee in bank- that after the goods were sold defendruptcy can bring an action to recover ant was in the store in which they were the excess of interest unlawfully exacted for sale, and from time to time sold from the bankrupt; but that the right portions of them. to recover the usurious excess does not

There was judument for plaintiffs. accrue until after the loans with lawful

Held, The rejection of the question interest has been repaid. (Doug. 697; by the referee was error. The evidence 2 J. Ch. 187; id. 95; J. R. 292; 50 N. offered by defendant and rejected Y. 49; 14 U.S., stat. at large, 522. would have some tendency to support

Judgment of general term, affirming her view of the case and was comjudgment for plaintiff at special term, petent, and should have been received, reversed and new trial granted. and to reject it on the ground of reOpinion by Anilrews, J.

opening the case was an abuse of dis-

Judgment reversed.
X. Y. SUPREME COURT, GENERAL TER), and Gilbert J. J. concurring.

Opinion by Mullin, P. j.; Smith
Smith et. al v. Neals.

RECEIVER. POWER TO BRING Decided January, 1876.

ACTION FOR PARTITION. The rule that an abuse of discretion is

ground for reversal applied to a N. Y. SUPREME Couri. SPECIAL TERM. peculiar case.

SECOND DEPARTMENT. This action is brought to recover of

A. V. N. Powelson, as receiver of the defendant, a married woman, the

the property and estate of Charles D. price of goods sold to hier in 1873, to

Reeve, v. Isaac Nelson Reeve, and be put into a store in the city of

others. Rochester, under the representation of plaintiff's claim that she was about

Decided May 20, 1876. commencing business of selling grocer

A recriver appointed under supplemenies, having a nephew as her clerk.

tary proceedings, may maintain an The defendant denied the represen

action for the partition of real estate

in which the judgment debtor is intation, and alleges that she told plain terested as a tenant in common.

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