so on; but such an apprehension is not well founded. There can only be one record of deeds, mortgages, and other homogeneous instruments, no matter in how many books they may be contained. The judgment must be reversed and a new trial granted with costs to abide the event. Opinion by Gilbert J.; Mullin P. J., and Smith J. concurring. in chief. It is a matter of discretion at the trial. Motion denied and judgment ordered on verdict, with costs. Opinion by Learned, P. J.; Bockes, and Boardman, J.J., concurring. PRINCIPAL AND AGENT. CON 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. Beebe et al., v. Winne. Decided May, 1876. Irregularities in the return to a com- Two commissions were issued on the part of the defendant, to examine the same person. On the trial the defendant gave in evidence the second, and the plaintiff then, under objection, gave in evidence the evidence taken under the first. indenture, who are named as parties thereto. The doctrine applied to simple contracts, executed by an agent for an unknown principal, that the principal is liable thereon, cannot be extended to contracts under seal. This action was brought to recover the purchase money agreed to be paid by and under a contract for the sale of land. The contract was written, and was signed, under seal, by one H., the purchaser. There was nothing upon the face of the agreement to show that defendant P. was in any way connected with or interested in the purchase. The covenants were between plaintiff and H., and the former, when he made and executed them did not know that H. 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 the trial. Consent to a second commis-P. to make the contract for him, and sion was not a suppression of the first. that P. furnished the money to make the payment made when the agreement There was no order for suppression. 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 It was as if the defendant had examin- ratification of the contract on the part ed a witness, and the plaintiff had crossexamined him, and then the plaintiff had recalled the witness and examined. of P. was shown. Edward D. McCarthy for applts. Held, 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, continued to treat with plaintiff as such agents until after the tank was put in. In November plaintiff put in a tank and pipes and connected them with pipes in the building, the agents being present at the time. 81. Also held, that the contract could not be turned into and enforced as the simple contract of a defendant, in the absence of proof that he had received any benefit from the contract, or had in any way ratified it, (7 Cush., 374,) and therefore that the doctrine applied to simple contracts executed by an agent for an unnamed principal, could not be so extended as to apply to this case. Judgment of General Term, affirming judgment dismissing complaint, af firmed. Opinion by Andrews, J. FIRE INSURANCE. WAIVER. N. Y. SUPREME COURT, GENERAL TERM, THIRD DEPARTMENT. Monell for the plaintiff. Held, That a general agent may waive by parol a condition of the policy, even where the policy provides that the waiver must be in writing. Permission to generate gasoline must be taken to include "its use for lighting." The condition that may waiver must be endorsed on the policy, may be waived by a general agent. The plaintiff acted in good faith, the defendant's agents gave permission to generate Arkell, respt., v. Commerce Insur- gas, and were present when the apance Company, applt. Decided May, 1876. A general agent may waive by parol a condition of a policy even where the policy provides that the waiver must be in writing. A company held to be bound by acts of an agent after surrender of his agency, the insured being ignorant of such surrender. Action on a policy of insurance. In the spring of 1873 plaintiff applied to paratus was put in; it would be unjust that defendant's agents should lead plaintiff to an act under the assurance that it would not affect the policy, and that the defendant should be allowed to set up such act to defeat a recovery. Judgment affirmed with costs. Opinion by Learned, P. J.; Bockes and Boardman, J. J. concurring. DEBTOR AND CREDITOR. the agents of defendant at Canajo-N. Y. SUPREME COURT. GEN'L TERM. harie for permission to make gas from gasoline which was granted, provided the tank was placed fifty feet from the FIRST DEPARTMENT. Levi Goldenburg et al., respts., v. Ja building, that distance being deemed cob Hoffman, et al., applts. Decided May 5, 1876. Hoffman & Wineburg, of Providence, Where a third person purchases from R. I., for valuable consideration hereby certain creditors of a failing debtor his agree 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 debts are not compromised said Hoffinan & Wineburg on their in such manner that one credi-paying to us twenty-five per cent. enforce any balance of tor can the indebtedness by proving simply thereof in cash, and their notes for that some other creditors received twenty-five per cent. endorsed by the more than himself upon the sale of said Hoffman & 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 Hoffman & Wine- tors 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 Wineburg & Brothers all their stock of agreed to pay the debts of Hoffman & 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 services in effecting a settlement of the co-partnership debts of Hoffman & Wineburg, and of obtaining the release from the creditors of said firm of their partnership debts. the referee the following facts appeared: That in the year 1873 Hoffman & Wineburg being in embarassed circumstances made an arrangement with 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 Hoffman & Wineburg, 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 Hoffman & 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 amount of the indebtedness of Hoffman and Wineburg to the plaintiff. Judgment reversed, new trial ordered, costs to abide event. Opinion by Davis, P. J.; Brady and Daniels J. J. concurring. USURY. ASSIGNEE IN BANK- N. Y. COURT OF APPEALS. Decided February 22, 1876. An action to recover the excess of interest unlawfully exacted from the bankrupt, may be maintained by his assignee in bankruptcy, but he must pay or offer to pay the loan as a condition precedent; he is not a borrower within the meaning of our statute. Wm. Strauss, for the respt. C. A. Runkle, for the applt. Held, The transaction is one where a third person steps in and purchases from the creditors of a failing debtor his debts at a stipulated per centum, and takes an assignment to himself. No fraud is shown on the part of Wineburg & Brothers, which would enable If a the plaintiffs to rescind the sale. third person is acting purely as the agent of the debtor, and takes the assignment for the benefit of the debtor, and that fact clearly appears, the assignment may doubtless be considered as in substance a compromise made by the debtor himself; but if he takes the title of the debt to himself for the This action was brought by the valuable consideration paid by himself, 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 original creditor can 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 exceedHoffman and Wineburg was in its ed the amount he had received inlegal effect a compromise for the cluding the excessive interest. Νο 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 William Wineburg, but perhaps facts court to find that the loan was not fully paid. The request was refused. benefit of the debtors. may be shown upon a new trial sufficient to uphold a recovery against the other defendants. B. E. Valentine, for the respt. On the trial defendant was asked the question: "Did you communicate the 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 sum loaned as a condition to granting equitable relief in respect to the securities fact to Mr. Perkins (one of the plainheld 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 confined to the you say on that subject?" borrower and within the meaning of the statute, and that plaintiff was not a borrower (7 Hill 891; 1 N. Y., 274; 2 id. 131; 14 id. 94, 49 id. 373; 1 R. S. 772; 2 Seld. 113). Also held, That an assignee in bankruptcy can bring an action to recover the excess of interest unlawfully exacted from the bankrupt; but that the right to recover the usurious excess does not accrue until after the loans with lawful interest has been repaid. (Dong. 697; 2 J. Ch. 187; id. 95; J. R. 292; 50 N. Y. 49; 14 U. S., stat. at large, 522. Judgment of general term, affirming judgment for plaintiff at special term, reversed and new trial granted. Opinion by Andrews, J. ABUSE OF DISCRETION. N. Y. SUPREME COURT, GENERAL TERM, Smith et. al v. Neals. The rule that an abuse of discretion is This action is brought to recover of the defendant, a married woman, the price of goods sold to her in 1873, to be put into a store in the city of Rochester, under the representation of plaintiff's claim that she was about commencing business of selling grocer. ies, having a nephew as her clerk. The defendant denied the representation, and alleges that she told plain The question was objected to on the ground that it was re-opening the case, and the objection was sustained by the referee. Evidence was given by plaintiff's that after the goods were sold defendant was in the store in which they were for sale, and from time to time sold portions of them. There was judgment for plaintiffs. Held, The rejection of the question by the referee was error. The evidence offered by defendant and rejected would have some tendency to support her view of the case and was competent, and should have been received, and to reject it on the ground of reopening the case was an abuse of discretion. |