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New York. Marked and num 2 Eng. L. & E., 323; 18 How, U. bered as per margin, which the N. S., 182 ; 15 Otto, 7; 9 Fed. Rep., Y., L. E. & W. RR. Co. agrees to 129, 142; 44 Md., 11; L. R., 10C. forward from Batavia to New York P., 562; 14 Moak, 420 : 3 Allen, upon the following conditions, 103 ; 8id., 109, 118 ; see Dan. Neg.

* * and the acceptance of this Inst., 3 ed., SS 1733, 1733a. Di. receipt by the shipper constitutes rectly in conflict is 10 Neb., 556; the agreement for the transporta. S. C., 35 Am. R., 488, and the tion of the above described goods cases first cited seem not to have or property. P.J. Weiss, Agent." the support on principle of the On the same day W. drew his courts of this State. drafton J. T. Comstock, New It is the necessary mercantile York, for $175, payable at fifteen usage for the shipper to obtain ad. days at the Bank of Batavia, an vances on his bills of lading. 5 nexed it to that instrument and Durn. E., 683; 111 Mass., 163; delivered it to plaintiff which dis. 124 id., 311 ; 22 Hun, 327 ; 48 N. counted it. Plaintiff sent the Y., 1. The holder of a bill of draft forward for collection, but it lading is presumptively the owner was not paid. The property men of the property mentioned in it, tioned in the bill of lading was not but the person taking it from a delivered to defendant.

third person is chargeable with not responsible. Plaintiff brought notice as against its true owner, if this action for the amount of the the possession of the one from whom draft. Verdict was directed for he takes it is unlawful. Nor can it the value of the amount of beans be effectual to vest title in one mentioned in the bill of lading. who, not being the owner or enDefendant's exceptions were taken titled, takes the bill of lading from to the denial of a motion for non the carrier. 60 N. Y., 40 ; 13 id., suit and to the direction of a 121 ; 16 id., 325 ; S. C., 24 id., 638; verdict.

11 Mass., 99 ; 20 Wend., 267 ; S. E. C. Sprague, for deft.

C. 32 Am. Dec., 541 ; 89 Penn. St., George Bowen, for plff.

155 ; S. C., 33 Am. R., 745 ; 3 El. Held, There is conflict of au & B., 622. But the carrier may be thority as to the extent to which liable to one making advances in limitation may be applied to the good faith in reliance upon it, as powers of the agent in behalf of for negligently or wrongfully issuthe principal as against one in ing it to a person not entitled to it. good faith relying upon the agent's 72 N. Y., 188.

. Such liability deact purporting to be within the pends, not upon privity, but on scope of his powers, but in fact, as the consequences of the negligence between the latter and his princi- | or wrong that permits and induces pal, done without authority. That the third person to proceed and the principal is not chargeable, see part with value to his prejudice. 10 C. B., 665; 8 Exch., 330 ; 18 13 N. Y., 599, does not reach the Eng. L. & E., 351 ; 16 C. B., 104;' question here. The doctrine in

this State seems to be stated in 34 v. The Syracuse Savgs. Bk. et al., N. Y., 30. See 61 id., 237; 72 id., impld., respts. 472, 478; 80 id., 162, 163; 65 id., Decided Oct., 1884. 111 ; 72 id., 188 ; 55 id., 456 ; 22

An action cannot be maintained by a taxid., 535 ; 69 id., 440; 61 id., 88 ;

payer under Chap. 161, Laws of 1872, or 40 id., 299 ; 44 id., 398. Plaintiff

$ 1925 of the Code, against a bondholder is in the situation to which equit who is a mere private individual doing or able estoppel will for his protection

threatening no special injury to the town. be applied, against defendant, Appeal from judgment dismisswithin the well-established rule in ing plaintiff's complaint. this State.

The action was brought by a Although the carrier is not con- taxpayer of the town of Salina to cluded by the terms of the bill of have canceled certain bonds issued lading as to the amount of goods, by said town to the Syracuse 28 N. Y., 590; 51 id., 410; 90 id., Northern RR. Co. in exchange for 430; yet proof is required to show its stock. The bonds were all isthat the contents are different from sned as early as Dec., 1870, and those mentioned in the bill of interest was paid up to and includ. lading. 12 Cush., 27; 12 Gray, 488. ing Aug. 1, 1880. The defendants,

Plaintiff has the right to charge the bank and S., were holders and his loss to the consequences of the owners of certain of these bonds act of defendant through its agent, and the trial court found that they and to base it upon the value of are “ each bona fide holders and the contents of the packages as owners of their

bonds respecthey were represented in the bill tively. ” of lading.

The court held that the right of As defendant treated the ques. action was barred by lapse of tions presented hy the evidence as time and dismissed the bill as to questions of law only, and did not all the defendants. This appeal is request submission of any ques taken from so much of the judgtion to the jury, the exception does ment as was in favor of the bank not raise any question of fact for and S., no appeal being taken the jury. 12 N. Y., 18 ; 43 N. Y., from the portion in favor of the 85.

railroad commissioner, who did New trial denied and judgment not appear in the action. ordered for plaintiff on the verdict.

Cornelius E. Stephens, for applt. Opinion by Bradley, J.; Smith,

Geo. F. Comstock, for respts. P. J., and Haight, J., concur; Barker, J., not voting.

Held, Prior to the passage of

Chap. 161, Laws of 1872, plaintiff TOWN BONDS.

as a taxpayer could not have

maintained this or any similar acN. Y. SUPREME COURT. GENERAL tion. 23 N. Y., 318 ; 61 Barb., TERM. FOURTII DEPT

121 ; 65 id., 460 ; 63 id., 224, 287. Charles G. Alvord, admr., applt., 1 That statute was designed to put

Vol. 20.-No. 7a.

a reniedy in the hands of taxpay. PRACTICE. CASE ON ers not existing prior thereto and

APPEAL. to give that remedy against “public officers and agents” as it is N. Y. SUPREME Court. GENERAL

TERM. FIRST DEPT. phrased in the title to the act. The substance of the Act of 1872 is

Susan Pettit, respt., v. Asa Petfound in $ 1925, Code Civ. Pro. tit, applt. Neither the statute of 1872 nor

Decided Oct. 8, 1884. § 1925 authorize a taxpayer of a municipality to maintain an action A justice out of court has no power to make against a bondholder who is a an order striking exceptions to the findings mere private individual doing or

and refusals to find of the court in an threatening no special injury or

equity case from the judgment-roll and

case on appeal as filed. damage to the municipality in When the judgment-roll and case on appeal wbich the taxpayer is interested. has been filed, a motion to correct it should

Ayers v. Lawrence, 59 N. Y., be made to the Special or General Term. 192, and Metzger v. Attica & Ar

It is proper for the clerk, to whom written cade RR. Co., 79 N. Y., 171, dis

exceptions to the findings and refusals to

find of the court in an equity case are pretinguished.

sented, after the filing of the judgment-roll Therefore this appeal discloses within the time specified for that purpose an attempt to have this court de

by $ 994 of the Code of Civil Procedure,

to file the same and annex them to the clare invalid bonds held in good

judgment-roll as part of his return on apfaith, bought in good faith, by two peal; and it is not necessary that such defendants at the instance of a written exceptions should be made part of

the case to be passed upon on settlement by taxpayer who has not made a

the trial judge. town officer or agent a party to the appeal. We are of opinion that Appeal from an order of a jusappellant has no standing in court tice of the Supreme Court made which entitles him to have the out of court and entered with the questions raised upon the merits clerk for the purposes of the of his bill as between him and a appeal. town officer or agent considered. This action was an equitable one

Plaintiff is not in a situation to and was tried by the court at assert the rights of the town in the Special Term and judgment was premises. If the action were by rendered for the plaintiff. the town to have surrendered the The defendant presented divers bonds issued then the right to proposed findings of fact and conmaintain the action would not rest clusions of law, all of which were upon the statute or code already endorsed by the court, "declined." referred to. 65 Barb., 597; 1 T. Within ten days after entry of the & C., 130.

judgment and notice thereof, the Judgment, so far as appealed defendant's attorney filed excepfrom, affirmed, with costs.

tions to the findings and concluOpinion by Hardin, P. J.; Fol- sions as made by the court, and lelt and Vann, JJ., concur. exceptions to the refusals to find

the several facts and conclusions exceptions should have been made requested to be found by the de- part of the case to be passed upon fendant. On the appeal from the on settlement by the trial court. judgment the defendant's requests

Order reversed. to find and these exceptions were Opinion by Davis, P. J.; Brady returned and printed and served and Daniels, JJ., concur. as part of the judgment-roll and of the case on appeal.

On an affidavit showing that on AFFIRMATIVE OF ISSUE. settling the case before him the justice who tried the same refused N. Y. SUPREME COURT. GENERAL to insert the defendant's excep

TERM. FIRST DEPT. tions to the findings and conclu David Phillips, respt., v. Fransions and to the requests to find in cis M. Brown, appll. the case, a motion was made on

Decided Oct. 31, 1884. notice to the said justice out of court to strike out said exceptions. The fact that a complaint alleges facts not egfrom the printed case on appeal, sential for plaintiff to aver or prove, and and the justice made an order so

that the same are denied by the answer,

does not deprive the defendant of the doing. This order was entered in

affirmative if he is otherwise entitled to it. the clerk's office, and an appeal was taken from it.

Appeal from judgment entered J. T. Marean, for applt.

on verdict.

The action was brought upon a Geo. Carpenter, for respt.

promissory note.' The complaint Held, That the justice acting as contains an allegation of ownersuch out of court had no power to ship of the note, and this allegamake the order ; that the return tion was denied by the answer. on file in answer to the appeal was All the material allegations of the no longer subject to his direction : complaint were admitted and an that the motion to correct the same affirmative defence set up. Upon should have been made to the the trial the defendant claimed General or Special Term.

that he held the affirmative of the That, moreover, under $ 994 of issue, but the court held that the the Code of Civil Prucedure, the plaintiff did so. defendant had a right to file with

Buller, Stillman & Hubbard, for the clerk, within ten days after

applt. entry of judgment and notice

Abram Kling, for respt. thereof, exceptions to the findings and refusals to find of the court; Held, Error. That the fact that and it was proper, therefore, that the complaint alleged facts not esthe clerk should annex them to sential for plaintiff to aver the judgment-roll as part of the prove, and that the same were depapers to be returned ; and it was nied by the answer, did not denot necessary that such written | prive the defendant of the right to


the affirmative, since otherwise he Held, That plaintiff was entitled was entitled to it. 65 N. Y., 236. to recover; that as the object Judgment reversed.

sought by the plaintiff in convey. Opinion per curiam.

ing special instructions to the defendant as to the disposition of

the money has not been attained, BANKS. REFERENCE. there is an apparent loss; that it N. Y. COURT OF APPEALS.

was not necessary to constitute a

cause of action that the violation The Bank of Attica, respt., v. of duty should have been caused The Metropolitan Natl. Bk.,applt. | by fraud or collusion. It is enough

that defendant took the risk of Decided Nov. 25, 1884.

obeying a person who had no right Defendant collected certain drafts sent to it to direct. by plaintiff for collection but applied the

The findings of the referee were proceeds, by direction of another party, to the payment of other commercial paper in

upon questions of fact and covits hands belonging to plaintiff. Held, ered all the issues in the action That plaintiff was entitled to recover for and were sustained by the evisuch proceeds, even though the violation

dence. He refused to make other of duty by defendant was not caused by fraud or collusion.

or additional findings. Where the reserce's findings cover all the Held, No error. issues and are sustained by the evidence a Judgment of General Term, refusal to make other or additional findings affirming judgment for plaintiff on is correct.

report of referee, affirmed. This action was brought to re Opinion by Danforth, J. All cover the amount of five checks

concur. which plaintiff alleged defendant received with due notice that they

BROKERS. EVIDENCE. belonged to plaintiff and refused to pay over. The referee before N. Y. SUPREME COURT. GENERAL whom the case was tried found

TERM. FOURTH DEPT. that defendant undertook to collect for plaintiff certain drafts and Joseph Esmond et al., applts., did do so, but applied the pro v. Seabury A. Tuttle, respt. ceeds in a manner unauthorized

Decided Oct., 1884. by it. He also found that those proceeds were in fact applied, by In an action by a broker to recover commisdirection of another party, to the

sions on a sale of real estate where the empayment of certain other commer

ployment of plaintiff and the performance

of services by him in regard to the sale is cial paper then held by defend

put in issue by the answer, evidence as to ant but belonging to plaintiff. The conversations between plaintiff and the evidence sustained the findings of purchaser in relation to property is ad

missible. the referee.

Fisher A. Baker, for applt. Appeal from judgment entered Edward C. James, for respt. on verdict and from order denying

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