Error to Erie County. Action upon a ! Verdict was directed for defendant in promissory note for $250. The plaintiff error. it was proved, was a bona fide holder for

Held. That is the maker of a bill, note value without notice. Plaintiff in error offered to prove the note was but a part of or check issues it in such a condition that an instrament, which, when he signed it, it can be easily altered without detection, was in the following form:

lie is liable to a bona fide holder who takes it in the usual course of business before maturity; he cannot be discbarged from his obligation by reason, or on aovount of h.s own negligence, in executing and issuing a note that invited tampering with. It is the duty of the maker of the note to guard not only himself, but the public, against frauds and alterations, by refusing to sign negotiable paper, made in such form as to admit of frandulent practices upon them, with ease and without ready detection.

bearer fifty dollars when I sell by worth of Hay and Harvest Grinders,

appeal, and also without

Ageat for Hay and Harvest Grinders ;


2. But in this case the maker did not sign what, upon its face, purported to be à negotiable promissory note, but a contract by which he was to become an agent for the sale of certain articles. Whether there was negligence, was clearly a question of fact for the jury. The line of demarcation, between the two parts might have been so clear and distinct, and given

the instrument so unusual an appearance as ought to have arrested the attention oi any prudent man. But it may have been otherwise. If there was no negligence in the maker, the good faith and absence of negligence on the part of the holder cannot avail him.


The cases of Phelan v. Moss, 17 P. F. Smith, 59; Zimmerman v. Rote, 25 P. F. Smith, 188; and Garrard v. Hadden, 17 Id. 62, are distinguishable from the present. In the two former, the party signed a perfect promissory note, on the margin ot, or underneath which, was written a condition which, as between the parties, was part of the contract, and destroyed its ne

gotiability, but it could easily be separated, and that the paper, since it was signed, leaving the note perfect

. In the latter the

a , which had been cut in two.

This proof was objected to, and ruled the amount might be increased without out.

a score to guard against such alteration.

NORTH EAST, April 20, 1872.
Six months after date I promise to pay J. B. Smith or
order Two HUNDRED AND FIFTY dollars

for value received, with legal interest, without

defalcation or stay of execution.

The evidence offered should have been from the 26th of April, 1872, and which received.

said sum hath been often demanded but Judgment reversed, and new trial or- refused." dered.

There was no allegation made that the Opinion by Sharswood, J.

urniture was the plaintiff's prop rty,

though that may be reasonably in ferred to ORDER OF ARREST.


H. H. Morange, for appl't in person.

John H. Thedlock, for resp't.
Henry H Murange, appl't, v. Albert G.
Waldron, respite

Held, That from the facts appearing Decided January 28th, 1876.

in the complaint there is nothing incon

sistent with the defendants receivWhere the money may be received

and credited in an account and the ing the money and crediting plaintiff balance of account afterwards paid

the amount so received on account and as a mattır of general indebtedness afterwards paying the balance due with 110 right of arrest exists under sub. any other funds subject to their use and 2 $ 179 of the Code

control. They appear to be consistent To render the person liable to arrest with the existence of just such an under

under the above section of the Code standing. Receiving money for the acthe in entical mmey received must be count and benefit of the plaintiff imposed the property of the creditor.

a different obligation from the fact of reAppeal from order setting aside execu- ceiving it to be paid over to him. The tion against the person and discharging averments in the complaint do not show the defendant from custody.

that the balance sued for was money An execution was issued against the received by either of the defendants in a person of the defendant upon the judg- tidneiary capacity. To render the person ment recovered, because it was supposed liable to arrest under the provision of that that the actio: wis o le in which he might subdivision relating to money received in be arrested according to subdivision 2 of a fiduciary capacity the identical money 8:79 of the Code. No order of arrest received must be the property of the cred. was obtained in the case, but the cause of itor. When the mo:.ey may be received action set forth in the complaint was alone and credited in account and the balance relied upon to justify an arrest upon the of account afterwards paid as a matter of execution.

general indebtedness no right of arrest Judgment was obtained without appli- exists under Sub 2, $ 179 of the Code. cation to the Court for want of an Order affirmed with $10 costs and disanaver.

bursements. But execution having been The following facts were averred in the issued in good faith, order modified recomplaint:

quiring defendant to stipulate not to bring That the defendants were auctioneers, action for false imprisonment. and as such sol and delivered for the ac Opinion by Daniels, J.; Davis, P. J. count of the plaintiff divers pieces oi fur- and Brady, J. concurring. niture. That “the defendant received for the

PAYMENT. STOCK-BROKING. account and benefit of the plaintiff in

ACCOUNT STATED. their capacity of anctioneers the sum of

N. Y. COURT OF APPEALS. $221.78, and that there remains due and Quincy, respt., v. White (impleaded, owing from the defendints to the plain etc.) applt. till th - sum of $210.67 with the interest Decided December 14th, 1875.

to unite in speculating in a particu- board 7,100 shares of the joint stock upon

A voluntary payment cannot be re selling and buying the stock so as to avoid

covered. Fear of the result of an loss if possible. arbitration is not Duress, and can. The referee, however, found wit' the not affect the fact of its being maile plaintiff that the arrangement was jo nt, voluntarily.

and that upon the failure of Y. plaintiff A person selling pledged stock under only agreed to car! y one-third of the stock

the rulemay purchase it himself. until it fell to 95, when defendants were It is not sufficient proof of the cor. to take and pay for it. rectness of an account when present

On July 23d H. & Co. gave appellant ed, that no objection is made; enough and W. a written notice that they : hould must be shown to justify such an in-hold them jointly liable for the whole acference. It is not per se unlawful as against proceeded after notice to sell at the public

count. Upon receipt of this notice W. public policy for several persons to lar stock. As to what kind of com- which he had loaned H. & Co., afte: July vination would be unlawful QUÆRK. 15th, 95 per cent of the par value, and

This action was brought to recover a "pon the sale he purchased in the stock, balance of account claimed to be due 1. with the concurrence of appellant, leaving & Co., of which firm plaintiff was a mem

a deficiency of $5,380, which he claimed ber, and now holds the account iy as

of H. & Co., and cited them before the signment. The parties are all stock brok- arbitration committee of the stock board,

It appeared that in the spring of but before the day to which the hearing 1870 W. & Y. arranged to deal in P. & R. was adjourned, they paid defendant that R. R. stock w th II. & Co. as their brokers. amount. This was allowed plaintiff, and Appellant soon after joined the enterprise, is included in the judgment. H. & Co. and the business c ntinued until Juls sold the remaining stock in their hands 15th, when the stock was much depressed and made up a joint account again-t the and a heavy loss seemed imminent. Y parties, which was delivered July 28th, thereupon declared himself unable to re- and showed a large balance due for which spond to calls for margin. Appellant and plaintiff recovered. W. each took and paid for one-third of

lleld, That the payment by plaintiff the stock then in the “pool,” which was voluntary, as fear of the decision of amounted to over 80,000 shares, and the of the arbitration committee was not dusum claimed in this action is substantially ress, and, having made it with full knowlfor losses incurred in closing out the other edge of the facts, the controversy as to third. Defendant claim-d that the lia- that stock was ended, and the judgment Lility was not joint, that by the arrange- could not be recovered back. ment between W. & Y. and II. & Co. the

It is to be observed that a person sellformer were to b. liable only for their re- ing pledged stocks “under the rule” (so spective shares, and that this arrangement called) has a right to purchase himself, was unchanged when defendant came in, as in the case of foreclosure of other liens and that on July 15th, when Y. failed, that On the 27th of July II. & Co. reudered matters were c: mpromised by an arrange to defendants an account as claimed by ment tlat defi n ant and W. should each them. The referee found that it was actake and pay for one-third of the stock, cepted approved.

There was no and that II & Co., wiwe to assume the direct evidence of di ceptance or

apother third, and that delendant aid w. proval, and it only could be found as wire toissist bim in currying it by loai-an i ferenc from not objecting. ing them money and manipulating and

Held, 'That it could not have a fict


of an account stated, as the circumstances It is claimed by plaintiff that theirto justify an inference of assent are not tendant is liable for the amount of the shown. To render an account presented notes aforesaid, on the ground that no prima facie proof of correctness, there certificate had been filed, that the capital must be enough shown to justify such an stock of the company (see Ch. 40, Laws inference.

1848, p. 56) had been paid in full, and · It is not per se unlawful as against public failure to comply with the provisions of policy for several persons to unite upon the statute. a special venture of dealing in a particu The complainant alleged the recovery lar stock.

of a judgment upon such notes against As to what kind of combination for the Ophir Mining Company aforesaid, in stock operations, or what means used in the Territory of Colorado. pursuance of the purposes thereof, will be Subsequently it was discovered that the deemed unlawful, quere.

judgment aforesaid, was recovered upon Judgment affirmed save as to $5,380 the loans by plaintiff to the Ophir Mining and interest, being the deficiency upon Company, for which the notes aforesaid the stock sold by W.

were given. Opinion by Church, J.

And this motion is made for the pur

pose of amending the complaint, so that PLEADINGS, AMENDMENTS. same shall clearly state a cause of action SUPREME COURT, GEN. TERM.

for the amount of the loans by plaintiff FIRST DEPI.,

to the Oplir Gold Mining Company, i1.Rocky Mountain National Bank of

stead of, as now a cause of action on the Central City, applt., v. George Bliss, notes. The motion in the court below respt.

was opposed on the ground, that the moDecided Jan. 25, 1876.

tion sought to charge entirely the : 1150

of action. An order denying a motion to amend a

2. On the ground that a new action on pleading is appealable. An amendment changing a cause of

the loans would be burred by the stitute

of limitations. action upon ceriain notes to an action to recover certain loans for which the

The court below denied the motion to notes were giren, cannot be regarded amend, from which order this appeal was as the substitution of a new cause taken. of action.

It was claimed on the appeal in behalf Appeal from order of Special Term de- of respondents that the order was not apnying motion for leave to amend com- pealable. plaint.

J. Van Cott, for applt. This action was brought to recover of

Robinson & Scribner, for respt. the defendant as a stockholder of the

lleld, That under the later decisions of Ophir Mining Company, the amount of the Court of Appeals this order must be certain promissory notes upon which held appealable, (53 N. Y. 215; 29 N. Y. judgment bad been obtained in Colorado, 418; 53 N. Y. 322; 10 Abb. Pr. (N. S.) amounting together to about $7,000, 416). made by the Ophir Gold Mining Company Held further, That the court below to plaintiff. The Ophir Gold Mining misapprehended the nature and object of Company was incorporated under a gene- the amendment in regarding the proposed ral act of the Legislature of the State amendment as the substitution of a new of New York, provided for the incorpora- cause of action for that set out in the tion of mining and other companies. complaint.


The notes were the evidence of the in the sale it was discovered that no guardian debtedness, it is true, and yet as the in- ad litem had been appointed for defend. debtednes created simultaneous- ant’s wife, she being an infant. On the ly with the notes, a recovery upon the ground that this irregularity would prevent notes would be of legal necessity a re- his getting a good title, he sought to be recovery upon the original indebtedness of leased from his bid, but his motion was the company. Even 'under the present denied and he was ordered to take the allegations of the company, proof of the title. facts as they now appear would not be a The order further provided that the refatal variance, and it would be the duty feree should pay from the ten per cent deof the court at the trial to amend the posit in his hands the referee's fees, costs, complaint in accordance with the facts expenses, &c , and hold the balance to meet as they are now shown on the motion.

any defficiency from the second sale, and That it thus appearing that the amend that unless he completed the purchase the ments would not have the effect to sub- judgment should be vacated and the aetion stitute a new cause of action, the objection be prosecuted against his infant wife On that the Statute of Limitations had run appeal to the General Term the order was falls to the ground.

modified so as to release defendant from bis Order reversed and motion to amend bid, and ordering the referee to pay the cx. granted.

ponses of the re-sale, after the proceedings Opinion by Davis, P. J.; Brady and were perfected, out of the deposit, and to Danicis Justices, concurring.

pay the balance to defendant, after deduct

ing costs, &c. Defendant failed to take PRACTICE. FORECLOSURE SALE. the title and the judgment was set aside N. Y. SUPREME Court, GENL. TERM, and proceedings taken in due form against FIRST DEPT.

the infant defendant, and on the entry of Knight, respl, v. Maloney, applt. this second judgment a second bill of costs Decided December 30, 1875.

was taxed in full, which, with the expenses Oriler releasing defendant, bililing at

of the second sale, the referee deducted foreclosure sale, of his bid, and di- from the purchase money. On the ground recting reforce to pay from the ten per that the order of the General Term recent deposit expensis of sule, fees and quired the deduction of only the expenses expenses of re-sale; defendunt enti- of the second sale, and not that defendant tiéu only to the bulunce of deposit should pay two bills of costs, fees and exafter paying referee's fees and expenses of first "sale. attorney's costs penses

, defendant sought for an order re. and expenses of re sale.

quiring the referee to pay back the amount Improper entry of an order should be deposited with him by defendant, and from

corrected by a motion to resettle the the order denying the motion this appeal is order.

taken. Appeal from order denying motion for an

Jos. C. Hays, for respt. order directing the referee to pay over cer

Jno. II. Hull, for applt. tain moneys received by him as deposit on On appeal Held, That, as the order was a foreclosure sale.

entered, the appellant was ertitled only to This action was brought to foreclose a the balance left of his ten per cent, after mortgage on certain property owned by de deducting referee's fees, expenses of the fendant and his sister.

first sale, the attorney's costs and the exDefendant, on the foreclosure sale, bid penses of the re-sale. in the property, depositing with the referee If the order in any respect was improper. ten per cent of the purchase money. After ly entered, the remedy for its correction

« ForrigeFortsett »