Sidebilder
PDF
ePub

It was not presented until the 31st of August, agent who succeeded him was the agent of nine days after it was received by the plaintiff. appellant "in that behalf.” Under the law The defendant was, by such delay, discharged from liability as indorser of the 'check, irre-applicable to the case the delay in giving apspective of any question of loss or injury. Pre- pellant notice, as alleged, discharged it from sentment in due time, as fixed by the law mer- liability as indorser, without regard to the chant, was a condition upon performance of which the liability of the defendant as indorser question of damage caused by such delay. depended, and this delay was not excused, al- | The court, therefore, erred in sustaining the though the drawer of the check had no funds, demurrer to the amended fifth paragraph of or was insolvent, or because presentment would answer. have been unavailing as a means of procuring payment. Mohawk Bank v. Broderick, 10 Wend.

[15] In this case our decision is strengthIN. Y.] 304; Gough v. Staats, 13 Wend. [N. Y.] ened by the principle that an agent cannot 549. A different rule obtains as between the take advantage of his position to use his holder and drawer of a check. As between them presentment may be made at any time, and de- principal's name to his own private advanlay in presentment does not discharge the liabil-tage. Furthermore the use of appellant's ity of the drawer unless loss has resulted."

name in the manner indicated in indorsing In First National Bank v. Currie, supra, the agent's personal check was sufficient nothe Supreme Court of Michigan say (147 tice to those accepting such checks that the Mich. 77, 110 N. W. 501, 9 L. R. A. (N. S.] agent was exceeding his authority, or at least 701, 118 Am. St. Rep. 541, 11 Ann. Cas. 243): it was sufficient to put such persons upon in

"The undertaking of the indorser of a check quiry to ascertain the extent of his authoris that, if not paid on presentation within a ity. Claflin v. Bank, 25 N. Y. 293; Allen v. reasonable time, he will pay it, provided he is Boston R. R., 150 Mass. 200-205, 22 N. E. 917, properly notified. Such reasonable time for 5 L. R. A. 716, 15 Am. St. Rep. 185. In Clafpresentation and demand for payment is admitted to be within the day following the indorselin v. Bank, supra, the court in effect held ment. The indorsee, as between himself and that no officer of the bank was authorized to the indorser, undertakes to demand payment certify a check when there are no funds to within the day following the îndorsement, and the drawer to meet it. * * * Nor can if payment is not made, to give due notice dishonor. This is his sole duty, and he does any officer or agent of the bank certify his anything else at his peril. 2 Dan. Neg. Inst. own checks; for no one acting in a fiduciary g 1601; People ex rel. Port Chester Sav. Bank capacity as trustee or agent can employ his v. Cromwell, 102 N. Y. 477, 7 N. E. 413. The fact that there are no funds in the account position for his own private benefit, and against which the check is drawn does not re- where the name of the officer who certifies lieve the holder from presentation and notice of the check is the same as the drawer, that dishonor to the indorser, unless it appears that circumstance is sufficient to charge all perthe indorser knew it. 2 Dan. Neg. Inst. § 1596; 1 Morse, Banks and Banking, $ 262 (8). Nor sons dealing with the check that they are are the rights of the indorser changed because the same person, and if such be truly the failure to demand payment and give notice of case, and the check were improperly certidishonor to him within the required time. Mo- fied, no holder could recover. hawk Bank v. Brodreick, 13 Wend. [N. Y.) 133 Under the alleged error in overruling ap[27 Am. Dec. 192]."

pellant's motion for a new trial, the ques[12] Following the statute, and in harmony tion is presented as to the sufficiency of the with the authority above indicated we hold evidence to sustain the judgment. We have that seven days was unreasonable delay in already indicated that Elson as agent had neipresenting the check for $244 for payment, ther express nor implied authority to use apand that the court erred in sustaining the depellant's name to indorse his own checks, murrer to the amended third paragraph of and that the stamp furnished him did not answer.

give him apparent authority so to do, but [13, 14] The gist of the amended fifth para- clearly indicated a restriction or limitation of graph of answer is that there was unreason his authority in that behalf. 7 Cyc. 806, 807, able delay in notifying appellant of the dis- and cases cited; Williams v. Potter, 72 Ind. honor of both of the checks sued upon. The 354. answer avers that appellant was not notified [16] There is therefore a total failure of until November 22d, after the dishonor of the evidence to show the agent's authority to inchecks on September 18 and October 14, 1913, dorse the checks sued upon, or to give him respectively. The statute fixes the time for apparent authority to indorse his own checks such notice. Section 9089y3 and 9089s3, supra. in the name of his principal. The motion Appellee seems to rely on notice given to El- for a new trial should therefore have been son and appellant's agent who succeeded him. sustained upon the ground that the decision We do not regard this argument as pertinent is not sustained by sufficient evidence, and to the question of the sufficiency of the fifth also on the ground that it is contrary to law. paragraph of answer, further than the im- Our Uniform Negotiable Instruments Act plied admission that the notice on November is substantially like those of many other 22d was too late to bind appellant as indors- states where such statutes have been in force er.

While under the statute notice of dis- for many years. Most of the cases cited are honor may be given to the principal or to from states having such statutes, and the de“his agent in that behalf, we hold that on cisions deal with questions involving the the facts of this case, neither Elson nor the statute.

[ocr errors][merged small][merged small][merged small]

1. MASTER AND SERVANT ©-420–WoRKMEN's COMPENSATION LAw—CosTs. The provision of the Workmen's Compensation Law (Consol. Laws, c. 67) $ 24, providing that, if the State Industrial Commission or the court, before which any proceedings have been brought determines that they have not been brought upon reasonable ground, it shall assess the whole cost of the proceedings upon the party who brought them, is mandatory, and requires the Court of Appeals to award costs against a party to an appeal under the act whenever the court determines that the proceedings have not been brought upon reasonable ground. [Ed. Note.—For other cases, see Master and Servant, Dec. Dig. 3~420.] 2. MASTER AND SERVANT ©-420–WoRKMEN's COMPENSATION LAW–COSTS. Under Workmen's Compensation Law, § 23, providing appeal may be taken to the Court of Appeals in all cases where such an appeal would lie from a decision of an Appellate Division “in the same manner and subject to the same limitations as provided in civil actions,” in cases involving no element of unreasonableness in bringing the proceedings, the award of costs is left to the discretion of the Court of Appeals, and ordinarily, in the exercise thereof, costs will not be awarded against an unsuccessful claimant, personally, but will be charged against the State Industrial Commission. [Ed. Note.—For other cases, see Master and Servant, Dec. Dig. 3-420.]

Proceeding under the Workmen's Compensation Law by Leona Wilson for compensation for the death of her husband, William H. Wilson, against C. Dorflinger & Sons, employers, and the Knickerbocker Mutual Liability Insurance Company of New York, insurer. There was an appeal by permission from an order of the Appellate Division (170 App. Div. 119, 155 N. Y. Supp. 857), affirming an award of the State Industrial Commission, which was reversed (218 N. Y. 84, 112 N. E. 567), and the Attorney General moves to amend the remittitur. Remittitur amended.

Egburt E. Woodbury, Atty. Gen., for the motion. Arthur Butler Graham, of New York City, opposed.

PER CURIAM. The decision handed down in this case on April 25, 1916, read as follows: “Order reversed, with costs, and claim dismissed.” Doubt having arisen as to the parties against whom the court intended to award costs by this decision, the Attorney General has moved to amend the remittitur, So as to provide for costs against the claimant only. Counsel for the appellants agrees that the remittitur should be amended by inserting therein the name of the party against whom costs are awarded, but contends that the costs should be awarded against the State Industrial Commission rather than against the claimant. Section 23 of the Workmen's Compensation Law (Laws 1914, c. 41) provides that an appeal may be taken to the Court of Appeals under the act in all cases where such an appeal would lie from a decision of an Appellate Division “in the same manner and subject to the same limitations as is now provided in civil actions.” Section 24 provides that if the Commission Or the Court before which any proceedings for compensation or concerning an award of compensation have been brought “determines that such proceedings have not been so brought upon reasonable ground, it shall assess the whole cost of the proceeding upon the party who has so brought them.” [1, 2] We regard this provision of section 24 as mandatory, and as requiring us to award Costs against a party to an appeal under the act whenever we determine that the proceeding has not been brought upon reasonable ground. . Such cases, however, are exceptional. In cases involving no element of unreasonableness the award of costs is left by section 23 of the statute to the discretion of the court; and ordinarily in the exercise of that discretion costs will not be awarded against an unsuccessful claimant personally, but will be charged against the State Industrial Commission, which virtually represents such claimant through the Attorney General. In the present case the remittitur should be amended, so as to award costs against the State Industrial Commission.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur.

Ordered accordingly.

G-For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(218 N. Y. 730)

which existed amongst the members of the In re PETRIE,

Appellate Division on the question whether In re ONEIDA STEEL PULLEY CO. et al. the award should be affirmed, the appeal was (Court of Appeals of New York. June 16, 1916.) entirely reasonable. The appellants misconMASTER AND SERVANT 420 – WORKMEN'S ceive the theory on which costs have been COMPENSATION LAW-APPEAL-Costs. awarded. In the per curiam opinion handed

Under Workmen's Compensation Law (Con- down by this court at this time in Matter of sol. Laws, c. 67) § 23, providing that an appeal may be taken to the Court of Appeals under the Wilson, 218 N. Y. — 113 N. E. 454, it was act in all cases where such an appeal would lie said: from a decision of an Appellate Division, "in

“Section 23 of the Workmen's Compensation the same manner and subject to the same limi- Law provides that an appeal may be taken to tations as is now provided in civil actions," on the Court of Appeals under the

act in all cases an unsuccessful appeal by the employer and in- where such an appeal would lie from a decision surer from an order affirming an award to an of an Appellate Division in the same manner injured employé, the order of affirmance by the and subject to the same limitations

as is now Court of Appeals, under ordinary circumstances, provided in civil actions Section 24 provides should be made with costs, as is usually done on that if the

commission or the court before which an affirmance of a final order in a special pro- any proceedings for compensation or concerning ceeding.

an award of compensation have been brought [Ed. Note. For other cases, see Master and determines that such proceedings have not been Servant, Dec. Dig. 420.)

so brought upon reasonable ground, it shall

assess the whole cost of the proceeding upon the On motion by the employer and insurer to party who has so brought them.' We regard recall and amend the remittitur, so as to re- this provision of section 24 as mandatory, and lieve them from costs awarded on the appeal. as requiring us to award costs against a party

to an appeal under the act whenever we deterMotion denied.

mine that the proceeding has not been brought See, also, 215 N. Y. 335, 109 N. E. 549. upon reasonable ground. Such cases, however,

are exceptional. In cases involving no element Jeremiah F. Connor, of New York City, of unreasonableness the award of costs is left and Merwin K. Hart, of Utica, for the mo- by section 23 of the statute to the discretion of

the court; and ordinarily in the exercise of that tion.

discretion costs will not be awarded against an Egburt E. Woodbury, of Albany, opposed. unsuccessful claimant personally, but will be

charged against the state industrial commission,

which virtually represents PER CURIAM. The motion to recall and through the Attorney General.”

such claimant amend the remittitur, so as to relieve the employer and insurance company from costs A proper application and natural extension awarded on the appeal to this court, should of the principles thus stated shows that, on be denied. We affirmed the award which had an unsuccessful appeal by the employer and been made to the claimant. The motion by insurer from an order affirming an award, the the appellants to be relieved from costs on order of affirmance by this court, under ordisuch affirmance seems to be based on the nary circumstances, should be made with theory that such costs may only be allowed costs, the same as is usually done on an afwhere it has been determined that the appeal firmance of a final order in a special proceedwas not brought upon reasonable grounds, ing. and it is insisted that, in view of the division Motion denied. All concur.

For other cases see same topic and KIY-NUMBER in all Key-Numbered Digests and Indexes

(218 X. Y. 736)

holder, is not in a position to bring an action In re MCINTYRE.

or suit to collect.

[Ed. Note.-For other cases, see Bills and (Court of Appeals of New York, June 16, 1916.) Xotes, Cent. Dig. $$ 1377, 137712, 1388; Dec. Proceeding under the Workmen's Compensa

Dig. 443(1).] tion Law by Mary McIntyre for compensation 2. CORPORATIONS O 473-BONDS-RIGHT TO for the death of her husband. Compensation COLLECT. was awarded, the award affirmed by the Appel The owner of corporate bonds, from whom late Division (155 N. Y. Supp. 1121), and the they were procured by a stockholder in the coremployer and insurer appealed by permission; poration by fraud and deceit, could not sue the the order of the Appellate Division being re-corporation on such bonds, since one not the versed and the claim dismissed (112 N. E. 1064). holder of a negotiable instrument, but merely On motion to amend remittitur as to award of entitled to become the holder, cannot bring suit costs. Motion granted, and remittitur resettled, to collect. so as to provide for the award of costs against [Ed. Note. For other cases, see Corporations, the State Industrial Commission only.

Cent. Dig. 88 1842-1853, 1855; Dec. Dig.

473.] PER CURIAM. Motion to amend remittitur as to award of costs granted, and remittitur. EQUITY Ow39(1)-RETAINING JURISDICTION (112 N. E. 1064) resettled, so as to provide for

TO ADMINISTER FULL RELIEF. the award of costs against the State Industrial of a bill of equitable replevin of a party owning

A court of equity, which takes jurisdiction Commission only. See opinion in Wilson Case (decided herewith) 218 N. Y. -113 N. E. 454. corporate bonds against a stockholder in the

corporation, he having obtained the bonds from plaintiff by fraud and deceit, will not keep juris

diction to enable plaintiff to collect the bonds, on (218 X. Y. 736)

the ground that, having taken jurisdiction, the In re CHAPPELLE.

court will keep it to administer full relief, since (Court of Appeals of New York. June 16, 1916.) | it can be given her as an incident to her bill

June 16, 1916.) plaintiff cannot have the additional relief 'unless On motion to amend remittitur as to award of of equitable replevin. costs. Motion granted, and remittitur resettled, [Ed. Note.-For other cases, see Equity, Cent. so as to provide for the award of costs against Dig. 88 104-109, 111, 114; Dec. Dig. 39(1).] the Industrial Commission only. See 112 N. E. 4. JUDGMENT Om572(2)—DECISION ON DEMUR569.

RER-CONCLUSIVENESS. PER CURIAM. Motion to amend remittitured on demurrer, and based on the ground that

A decree, dismissing plaintiff's bill, render(112 N. E. 569) as to award of costs granted, the bill is defective, will not bar any proper acand remittitur resettled, so as to provide for the tion or actions, suit or suits, to enforce the mataward of costs against the State Industrial Com

ters complained of. mission only. See opinion in Wilson Case (decided herewith) 218 N. Y. - 113 N. E. 454.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. 88 1041, 1048; Dec. Dig. 572(2).]

5. JUDGMENT Om565 - DISMISSAL WITHOUT (218 N. Y. 736)

PREJUDICE ON DEMURRER. SHERIDAN V. P. J. GROLL CONST. CO. Though decree dismissing plaintiff's bill, ren

dered on demurrer, based on the ground that (Court of Appeals of New York. June 16, 1916.) the declaration is defective, will not bar any Proceeding for compensation under the Work- proper suit to enforce the matters complained

of, the better practice is to provide in the deagainst the P. J. Groll Construction Company, cree that the bill is dismissed without prejudice. employer, and the Employers' Liability Assur

[Ed. Note. For other cases, see Judgment, ance Corporation, Limited, insurer. The award Cent. Dig. $ 1018; Dec. Dig. 565.] of the State Industrial Commission was affirmed

Appeal from Supreme Judicial Court, Sufby the Appellate Division (155 N. Y. Supp. 859), and there was an appeal by permission, on which folk County. the order of the Appellate Division was reversed Suit by Juliet F. Lloyd against the Impe(112 N. E. 568). On motion to amend remittitur rial Machine Stamping & Welding Company as to award of costs. Motion granted, and remittitur resettled, so as to provide for the award and others. From a decree dismissing the of costs against the State Industrial Commis- bill, entered on an order sustaining a demur. sion only.

rer filed by Louis F. Buff, a defendant, plain

tiff appeals. Decree modified and affirmed. PER CURIAM, Motion to amend remittitur as to award of costs granted, and remittitur re Geo. L. Wilson, of Boston, for appellant, settled, so as to provide for the award of costs Wm. M. Richardson and Wm. P. Evarts, both against the State Industrial Commission only; of Boston, for appellee Buff. See opinion in Wilson Case (decided herewith) 218 N. Y. — 113 N. E. 454.

LORING, J. This case comes up on an ap

peal from a decree dismissing the bill enter(224 Mass. 574) LLOYD v. IMPERIAL MACH. STAMPING ed on an order sustaining a demurrer filed & WELDING CO. et al.

by the defendant Buff. In her bill the plain

tiff alleged that in the summer of 1909 she (Supreme Judicial Court of Massachusetts. Suffolk. July 12, 1916.)

became the owner of seventy-one first mort

gage bonds of the defendant Welding Com1. BILLS AND NOTES 443(1) HOLDER's pany; that these bonds were part of an isRIGHT TO COLLECT.

The right to collect a negotiable instrument sue of seven hundred bonds secured by a is in the holder of it; and a person who is not mortgage of certain rights in an invention, the holder, but who is entitled to become the future improvements thereon and patents se

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

curing the same, together with drawings, / as stockholder in the corporation which the
patterns, machines, machinery and equip- plaintiff desires to reach and apply “in pay-
ment for the manufacture of the machines ment of her said claim against the defendant
covered by the invention and patent; that Buff."
after making the mortgage the Welding Com- [1, 2] The foundation of the plaintiff's bill
pany by an indenture dated September 5, is a right on her part to collect from the
1911, transferred the exclusive right, title and Welding Company the principal of her bonds
interest to the property covered by the mort. or (if that is not now due) the amount of
gage to the defendant Buff and another, in the interest coupons which have matured.
consideration of and conditioned upon the It is the settled law of this commonwealth
grantees paying a royalty therein described that the right to collect a negotiable instru-
for all machines manufactured and sold by ment is in the holder of it. Nat. Pemberton
them under the patent. It is further alleged Bank v. Porter, 125 Mass. 333, 28 Am. Rep.
that by said royalty indenture the Welding 235; Lowell v. Bickford, 201 Mass. 543, 88
Company agreed that Buff and his associate N. E. 1, and cases cited.
might have the mortgage securing the seven From this it follows that a person who
hundred bonds aforesaid discharged at their is not the holder of a negotiable instrument
own sole expense, and coupled with that au- but who is entitled to become the holder of
thority was an agreement by Buff and his it is not in a position to bring an action or
associate that they would “indemnify and suit to collect it. On the face of the bill the
save harmless" the Welding Company "from plaintiff is not now the holder of the sev-
any loss, cost, charges, expenses, damages, enty-one bonds here in question. Putting
suits, actions and proceedings at law or eq- her allegations at the highest she has a right
uity" which the Welding Company "may to become the holder of those bonds.
bear, sustain, be at or be put to, for or by [3] The bill does not contain the allega-
reason or on account of the said bond mort- tions which are necessary to make it a bill
gage” aforesaid, "or the rights of any hold of equitable replevin. The most favorable
ers of any bonds issued thereunder.” The assumption for the plaintiff is that it might
bill then alleged that in March, 1914, the debe amended into such a bill. Treating the
fendant Buff procured possession of the bill as so amended, the plaintiff cannot have
plaintiff's bonds through fraud and deceit; the relief sought in this bill unless the re-
but that the defendant Buff claims that he lief here sought would be given to her as an
purchased the bonds from the plaintiff at incident to a bill of equitable replevin. It
that time. It is then alleged that the mort is plain that a court of equity which had tak-
gage was foreclosed in April, 1915. It is en jurisdiction of this bill as a bill of equi-
averred that the mortgage contained a provi- table replevin but would not keep jurisdic-
sion that in case of a foreclosure of the tion for the purpose of giving to the plain-
mortgage "the principal of all outstanding tiff the relief which she seeks in this bill on
bonds should forthwith become due and pay- the ground that having taken jurisdiction
able notwithstanding anything contained in of the cause it would keep jurisdiction to ad-
said bonds” (and it appears from an inspec- minister full relief.
tion of the bonds that there is nothing to It follows that the bill in this suit is bad.
that effect in the bonds). It is averred that Until the plaintiff becomes the holder of
by reason of the foreclosure and by virtue of them she has not the right to collect these
this provision in the mortgage, the princi-bonds. In addition is that objection were
pal sum of the seventy-one bonds aforesaid removed by amending the bill so as to make
has become due and payable and that the it a bill of equitable replevin, the relief here
Welding Company now owes the plaintiff sought is not an incident to such a bill.
the principal of said bonds and the unpaid Under these circumstances, it is not nec-
interest coupons thereto attached. It is then essary to consider the further difficulties
alleged "that upon judgment being rendered which lie in the plaintiff's path in her en-
therefor against the

against the defendant * * *deavor to collect the amount of these bonds
Welding Company, said company is entitled from the defendant Buff.
to recover over against the defendant Buff [4, 5] A decree dismissing this bill would
the amount of said judgment; that Buff con- not be a bar to any proper action or actions.
trols the Welding Company and for that rea- suit or suits, to enforce the matters here com-
son that the Welding Company would not plained of. Capaccio v. Merrill, 222 Mass.
enforce its right to recover indemnity from 308, 110 N. E. 626. In spite of that the bet-
Buff "in respect of any judgment the plain- ter practice is in such a case to provide in
tiff might obtain against said corporation in the decree that the bill is dismissed without
an action at law"; and that the Welding prejudice. The decree should be modified in
Company is insolvent. It is then alleged that way, and so modified should be affirmed.
that Bufr is the owner of a valuable interest It is so ordered.

[merged small][ocr errors]
« ForrigeFortsett »