Hazard v. Wells. deteriorated or valueless, it becomes equivalent to actual payment." The case of Wakeman v. Gowdy, 10 Bosw. 208, holds that a creditor receiving from his debtor, as collateral security, a promissory note made by a third person, past due, with the request to collect it and apply the proceeds to the payment of the debt, though without any request to sue upon it, incurs the obligation to use diligence in its collection, and to sue if necessary. And the creditor having received the note as such security, at a time when the maker was abundantly able to pay it, and on payment being demanded, the maker having intimated that he had a defense, but the creditor neither notified his debtor thereof, nor brought suit on the note, until three months thereafter, and in the meantime the maker had become insolvent, whereby the amount of his note was lost, it was adjudged, that negligence was imputable to the creditor, which made him liable to his debtor for the amount of the note. In Buckingham v. Payne, 36 Barb. 81, the same principle is laid down on a similar state of facts, and the court approved the doctrine of the chancellor in Exp. Mure, supra, that the obligation of the creditor in such cases, is the same in effect, as that of an agent or attorney employed to collect the demand; (see also Chamberlyn v. Delarive, 2 Wilson, 353; Hoard v. Garner, 6 Seld. 261; Lawrence v. McCalmont, 2 How. (U. S.) 426; Kephart v. Butcher, 17 Iowa, 240, and the opinion of ALLEN, J., in Smith v. Miller, 43 N. Y. 171, 174). In conformity to these adjudged cases, the elementary writers lay down the rule, that a creditor who receives from his debtor the notes or bills of third par ties, as security for his debt, is bound to the exercise of such diligence as is required of a bailee for hire, and is liable to the debtor for any loss or deterioration in Hazard v. Wells. the value of the security which may occur, whether through neglect to fix the liability of the parties to such paper, by due demand of payment and notice of non-payment, or to enforce the collection of the paper with proper diligence (Sherman on Negligence, § 245; Wharton on Negligence, § 670, 672; Edwards on Bills, 198, 201; Byles on Bills, 381; 2 Pars. on Notes and Bills, 154). These authorities fully sustain the decision of the court which tried this cause. And if we considered the case upon principle only, we must arrive at the same conclusion. The defendant pledged the Ganson note to the bank as security for the payment of the note in suit, and gave the note so pledged into the custody and control of the bank, which thereupon became the bailee thereof, and bound to the same degree of diligence in maintaining and preserving the value of the pledge and saving the defendant from any loss thereon as a prudent business man would exercise in respect to such a note. Different kinds of property, when made the subject of such a bailment as was created in this case, require of the creditor, who is the bailee, different kinds and degrees of care and diligence to preserve it from deterioration and loss, according to the nature of the property, and the incidents which affect its value. Money, bullion and precious stones require only safe keeping; cattle, horses and other live stock, must be fed, watered and kept secure; grain must be properly stored and protected from dampness, heating, and other injuries to which it is subject; and so, every species of property held in pledge by the creditor demands appropriate measures to protect it from loss or injury. In the case of bonds, notes or other securities for the payment of money, a prudent business man will take care that they are collected when due, and that, if necessary, payment be enforced by suit, while the parties liable on them Hazard v. Wells. are solvent and able to pay them. A creditor, therefore, who receives such securities in pledge from his debtor, and fails to enforce their collection when due, delaying action until the makers become insolvent, is as much guilty of neglect of his legal duty, as if he suffered goods and merchandise, held by him, as like collateral security, to be destroyed for the lack of necessary protection and care. In the case before us, the neglect of this very duty by the bank of which the plaintiff is receiver, beyond any doubt caused the defendant to lose the amount of the note which he had pledged to the bank, as security for the note in suit. When the pledge was made, Mr. Ganson, the maker of the note, was perfectly solvent, and for a period of at least four years thereafter, the note could at any time and without difficulty have been collected. The defendant repeatedly urged the president and financial manager of the bank to do his duty, and require payment of the note, and he as often promised to give it the care and attention which his duty required that he should. But he continued to neglect that duty until insolvency and death intervened, and the note became worthless. It makes no difference, that the responsible officer of the bank, in charge of its affairs, and the maker of the note pledged as security to the bank, were one and the same person; or if the fact does make a difference, it operates rather in favor of the defendant than against him. If the note pledged had been made by a third person, having no relation to the bank, the negligence of the latter could not have been more marked or resulted more injuriously to the defendant. The judgment appealed from must be affirmed with costs. Chatterton v. Kreitler. CHATTERTON v. KREITLER. N. Y. Supreme Court, First Department; Chambers, November, 1877. AFFIDAVIT.-COMPLAINT.-INJUNCTION.-SECTIONS 603, 607 OF CODE OF CIV. PRO. Under section 603 of the Code of Civ. Pro., as formerly, an application for an injunction should be made on affidavit, and not on a verified complaint alone. Motion by plaintiff for an injunction. George W. Chatterton, and David Dodd, copartners' brought this action against Ulric Kreitler, and August Bergstein, to have a certain assignment, or deed of trust, from Kreitler to Bergstein declared void, and a receiver appointed, an injunction granted, &c. The complaint alleged the obtaining of a judgment by the plaintiffs against the defendant Kreitler; that execution had been issued and returned unsatisfied; that during the pendency of that action Kreitler had made an assignment of his property by deed of trust to Bergstein, a copy of which was annexed to the complaint, and formed a part thereof, for the purpose of defrauding the plaintiffs; that there was danger of the property being disposed of in such a manner that the plaintiffs would lose their judgment, &c. The demand of relief was, that the deed of trust be adjudged fraudulent and void as against the plaintiffs; that a receiver be appointed; that defendants account; and that they be enjoined from disposing of the trust property; and that the receiver pay the judgment of the plaintiffs against Kreitler. This complaint was verified by the plaintiff Dodd. On the summons and complaint alone, the plaintiffs moved for a preliminary injunction to restrain the de Asinari . Volkening. fendants from disposing of any of the trust property or its proceeds. The motion was opposed by affidavits, showing the origin of the deed of trust, and alleging that it was not given to defraud creditors, but in good faith to carry out a compromise with a majority of them, &c. A. J. Vanderpoel, for the motion. Abel Crook, opposed,-Urged, that the plaintiffs should have moved on affidavits; that section 603 of Code of Civ. Pro. is in substance a part of section 219 of Code of Pro., and under that section an affidavit had repeatedly been held necessary (Fowler v. Burns, 7 Bosw. 637; Hascall v. Madison University, 8 Barb. 174, 176). That section 607 of Code of Civ. Pro. required an affidavit in all cases. LAWRENCE, J.-I am not prepared to hold that section 603 of the Code of Civil Procedure dispenses with the necessity of an affidavit upon an application for an injunction. If it does not, the verification of the complaint is not sufficient. Section 603 must be read in connection with section 607 (See also Mr. Throop's note to § 603). For this reason the motion for an injunction is denied, but, as the point is new, without costs. ASINARI v. VOLKENING. N. Y. Supreme Court, First Department; Chambers, June, 1877. ANSWER.-FORECLOSURE.-PRACTICE.-ORDER TO SHOW CAUSE.SERVICE OF ORDER ON ATTORNEY.-SECTION 797 OF CODE OF CIV. PRO. An order to show cause, if made by a judge out of court, and returnable in less than two days, is irregular if it contains a stay |