8 N.Y.S. 162 | N.Y. Sup. Ct. | 1889
Lead Opinion
This is an action to recover an alleged balance of account. The defense is a counter-claim, and the questions in the case arise on the counter-claim. After issue joined, the defendant applied to the special term, in September, 1880, for the removal of the cause to the circuit court of the United States, southern district of Hew York, on the ground that the suit and matters in dispute arose under the laws of the United States. The motion was denied. 59 How. Pr. 482. On appeal by defendant, the order of denial was affirmed by the general term, in February, 1881. 24 Hun, 140. In June, 1881, on an affidavit, the defendant asked leave to serve a supplemental answer, duly verified, setting forth the fact that defendant had presented said petition and the usual bond, and had on the 18th day of October, 1880, filed a copy of the record in the circuit court of the United States, southern district of Hew York, and averring that thereby this cause was removed to said court, and this supreme court was ousted of jurisdiction. The court, at special term, denied the motion. The cause afterwards came on to be tried before the special term in September, 1887, and a decision was rendered for the plaintiff, rejecting defendant’s counter-claim. Judgment was entered, and defendant appealed, stating in the notice of appeal its intention to bring up for review the order denying the motion for leave to serve a supplemental answer. Accordingly the defendant, in making up the case for the appeal, inserted therein the supplemental answer and the affidavit on which said motion for leave to serve such answer was made, and also the order denying such leave. Upon'settlement of the case an order was made striking out said affidavit and supplemental answer from the case, and from that order the defendant also appeals.
It was held in Illius v. Railroad Co., 13 N. Y. 597, that the order of the general term affirming the refusal to transfer the case was not appealable. If this be correct, the defendant could not by appeal have that order reversed. But the defendant could do what was done in a similar case. Stevens v. Insurance Co., 41 N. Y. 149. It could set up the facts showing that the cause ought to have been (and perhaps legally was) removed, and it could then prove these facts on the trial, and thus claim, before the court of appeals, on appeal from the judgment, a reversal for want of jurisdiction. This the defendant attempted to do, but the privilege of setting up these facts by supplemental answer was denied. An appeal from a judgment brings up for review an intermediate order, which necessarily affects the final judgment. The question, then, is whether the refusal to permit the supplemental answer necessarily affected the final judgment. It seems to us that this privilege of reviewing, on appeal from final judgment, an intermediate order, is not to be extended beyond the strict language of the section. A party against whom an order is made by the special term may appeal to the general term. If he neglects to do this within the proper time, it is not reasonable that he should, after the cause has been tried and decided, bring up this order, unless it necessarily affects the judgment. The defendant says, and says correctly, that if the proceedings for removal are regular, in a proper case, the state court is ousted of jurisdiction, whether the order of removal is granted or denied. Shaft v. Insurance Co., 67 N. Y. 544. If defendant, then, is correct as to the law respecting the right to remove this case, (as to which see Leather Manuf'rs Bank v. Cooper, 120 U. S. 778, 7 Sup. Ct. Rep. 777,) this court has no jurisdiction. But whether the order refusing to permit defendant to serve a supplemental answer necessarily affected the final judgment is another question. It may be that if an appeal had been taken from that order we should have reversed it. Whether, if the order had been granted, the final judgment would have been different, depends, partly at least, on what might be proved under the supplemental answer. And clearly there must be a uniform rule
Tlie defendant on the trial of the case proved the facts claimed to show a removal of the case as aforesaid, and objected to any proceedings, on the ground that the cause was now pending in the circuit court of the United States, southern district of New York, and again moved, on like ground, for a dismissal. We are aware of the decision in Removal Cases, 115 U. S. 1, 5 Sup. Ct. Rep. 1113, and of the Leather Manuf’rs Bank Case, above cited. But we are not prepared to say what the effect of the statute of 1882 is upon this case; and, as the question of removal was once before us, we think it best to adhere to the decision then made. With great respect for the court whose decisions were last cited, we do not see how a claim for money against the defendant, whose corporate existence is admitted, is a suit arising under the laws of the United States, any more than a similar action against a man who had once been a slave would be a suit arising under the laws of the United States, on the ground that his right to sue and be sued was given by the fourteenth amendment.
This brings us to a consideration of the merits. The learned justice who tried this case held that whatever acts were done by Ostrander, the treasurer of plaintiff, in the matter in question, were done as agent for the administrator, and not as treasurer of the bank. We cannot agree with this conclusion, so far as the defendant is concerned. The plaintiff kept an account with defendant. The account in part is given in evidence. It shows, among other things, October 11,1877, 100 Lake Shore, $7,037.50, indicating a sale of stock by defendant for plaintiff. The scrip in question was sent in a letter of the form used for years in plaintiff’s correspondence with defendant. The defendant could not inquire whether the scrip belonged to plaintiff or not. Plaintiff might have had an interest in it or lien upon it, so far as defendant knew. The express charges on this scrip were in the account, and have not been objected to. i
The plaintiff objects that it is not liable, because Reynes & Villere sold 144 shares instead of 194. If this had caused any injury to plaintiff, there would be force in the objection. But the error was a positive benefit to plaintiff; for it diminished the possible liability by $500. There was no direction to sell either the whole or none. An agent authorized to sell a house might not be justified in selling half of it. But unless special directions to the contrary were given, an agent who had shares of stock to sell might sell in parcels, or might sell a part if he could not the whole; or he might sell a part to one person, and the rest to another. Each sale would be valid, and within his authority. So was the sale in the present case.
The defendant did exactly what the plaintiff requested. If in so doing it suffered any loss, or became liable to damage, the plaintiff must indemnify. The defendant assumed no risk as to the power of the administrator to make a transfer. It could know nothing about that. It was for the administrator to know whether he could deliver what he proposed to sell; and it was for the plaintiff to know or to ascertain that, when it'employed defendant to send the scrip to its correspondent. The Germania Bank did just what was proper. It was in accordance with custom and good dealing to make such a sale through a broker. If the Germania Bank had neglected to take this course, and had attempted to make the sale itself, it would have been liable, if it had thereby failed to get the full value. The sale made by Reynes & Villere to Willoz was properly made, and no fault can be charged to them. But neither Reynes ■& Villere nor the Germania Bank could deliver the stock on the next day, when by custom it should have been delivered. For this inability to deliver
But, further, the law of Louisiana was proved on the trial. It was shown that under the circumstances above detailed, as to the action of H. Joseph Budington, the assets became vested in the court of Louisiana; that if these scrip certificates were sent from New York to Louisiana with written authority sufficient to effect a valid sale in New York, the sale in Louisiana could be effected only by authority of the court of Louisiana. It is also shown that an administrator cannot be appointed in Louisiana without giving a bond. Now, the law thus proved to exist in Louisiana is the law of this state. Although personal property is subject to the law which governs the person of the owner in respect to succession, yet the right which an individual may claim to personal property in one country under title from a person domiciled in another can be asserted only by the legal instrumentalities provided by the country where the claim is made. Hence an administrator appointed in one state has not, as such, any authority beyond that state. Parsons v. Lyman, 20 N. Y. 103; Stone v. Scripture, 4 Lans. 186. Now, we do not mean that the administrator appointed in New York might not have received the voluntary payment of debts in Louisiana; nor need we say that, if the Crescent City Bailroad Company had voluntarily transferred this stock, such transfer would not (at least according to our laws) have been good. But the doctrine is that the foreign administrator could not compel a transfer, and hence the company could not be said to have acted wrongfully in refusing. This is still more evident, since previous to the time in question an administrator had been appointed in Louisiana. We cannot, therefore, see why Beynes & Villere were not liable to Willoz for the damages. .
The plaintiff urges that Keynes & Villere, the Germania Bank, and the defendant did not give plaintiff an opportunity to compel the transfer. But Willoz was not bound to wait until the remote principal had been notified, and had carried through a litigation against the railroad company. He had his claim on Beynes & Villere, and did not need to go further or to wait. The claim between the brokers was submitted, according to the rules binding them, to the arbitration committee. Whether their award was binding on these parties we need not decide, because the amount of the actual damages has been proved on the trial. On that arbitration Beynes & Villere took the ground that not they, but the Germania Bank, their principal, was responsible. The committee followed a rule alleged to be of the New York Stock Exchange, to the effect that a party to a contract shall not be compelled to accept a principal, other than the broker contracting, unless the name proposed be satisfactory, or be declared at the time of making the offer. This seems to be the common rule, that an agent is liable personally unless at the time he discloses his principal. At any rate, the substitution of the Germania Bank
There is nothing, then, to show that Keynes & Yillere, the Germania Bank, and the defendant did not act severally, in good faith, and in strict accordance with instructions received from the immediate principal of each. So doing, each was entitled to be indemnified by the immediate principal for loss sustained in the discharge of the duties of the agency. Howe v. Railroad Co., 37 N. Y. 297. The plaintiff in a letter to defendant placed its objection to pay these damages on the ground that the Germania Bank should have found out before offering the stock for sale whether it could be transferred. Nothing of that kind can be inferred from the instructions, and the finding of the court is that the Germania Bank was not guilty of negligence. It may also be noticed that after defendant had notified plaintiff of the facts, and plaintiff had declined to admit the charge, the defendant in December, 1877, suggested that plaintiff should make any contest it might desire, and offered to put plaintiff in possession of any needed facts. The plaintiff, therefore, had the opportunity of contesting the matter between defendant and the Germania Bank. Certainly defendant was not bound to litigate. And another fact may be noticed; that is, that H. Joseph Budington, who is the plaintiff’s principal, afterwards, in March, 1884, sold these 196 shares for $19,000, a large advance over the price at the time of the transaction in question; so that he is not a loser by the refusal to transfer. The judgment should be reversed, a new trial granted, costs to abide the event.
Landon, J., concurs.
Dissenting Opinion
(dissenting.) Being unable to adopt the conclusion reached by my associates in this case, I proceed to state my reasons for dissenting therefrom. 1 am convinced that the decision of the learned trial court was in accordance with the facts and the law of the case. The facts in regard to which there is any serious dispute are very few. The action was brought by the plaintiff to recover the sum of $1,440, with interest from April 12, 1878, claimed to be due to the plaintiff from the defendant as the balance upon an account for money deposited with the latter. A draft for such money was drawn by James E. Ostrander, the treasurer of the plaintiff, upon the defendant, and payment was refused. We do not understand but that the amount claimed would be due and owing by the defendant to the plaintiff, were it not for the counter-claim insisted upon herein by the defendant, which consists of money which the defendant claims to have paid to the Germania National Bank of New Orleans, and connected with the sale of 144 shares of the stock of the Crescent City Railroad Company, and which sale of such stock was made under substantially the following circumstances: Henry J. Budington, who was a resident of Kingston, Ulster county, state of New York, was the owner of 194 shares of said stock at the time of his death, which occurred at the city of New Orleans, February 29, 1876. On the 29th day of May, 1876, H. Joseph Budington, the son of the deceased, was duly appointed administrator of the goods, chattels, and credits of the deceased, and as such administrator he took possession of the personal property of the deceased, including the certificates for the said 194 shares of stock. He delivered such certificates of stock, with a power of attorney executed by him as such administrator, authorizing a transfer thereof, to James E. Ostrander, who was the treasurer of the plaintiff, with instructions to Ostrander to send such certificates and power of attorney to the corresponding bank of the plaintiff in the city of New York, requesting such bank to cause the 194 shares of stock to be sold. James E. Ostrander undertook to perform such service, and in
The sale of the 144 shares of stock was, I think, a violation of the instruction contained in the letter addressed to the defendant, and which constituted the only authority to make the sale of the stock. The direction was to sell all of the shares of stock, being 194 in number, and at a price not less than $20 a share, and no discretion was conferred to sell a lesser number. Thus it appears that the agency related to but one subject-matter, and authorized the performance of but one act, in the manner expressly stated in the letter of instruction, which was free from uncertainty or ambiguity, and was restrictive in its character, and by its terms, fairly construed, directed the sale of the stock in one parcel or block, and at a price not less than $20 per share. It is a fair presumption that the owner of the stock did not desire to sell a portion of the stock, and to retain the residue, and I think such intention is inferable from the letter of instruction and the accompanying circumstances. It does not appear that any effort was made to sell the residue of the stock. This controversy is not between the plaintiff and the purchaser of the stock, but between the plaintiff and the defendant, to which the instruction was given to sell the stock, and which therefore presumably acted with a knowledge of the nature and extent of the authority conferred upon it. I am unable to accept the theory that in the absence of an express direction not to sell a lesser number than 194 shares, the agent possessed an implied authority to sell as many shares, and in such parcels, as was deemed expedient, as the practical effect of such doctrine would seem to be to allow an agent to substitute for an express direction an implied' authority. Suppose an agent should be •directed to sell a farm, at not less than a fixed price per acre, would the agent be authorized to divide the farm and sell a portion thereof, without the knowledge or consent of the owner? I think not. And to my mind the sale of the ;Stock in the manner it was made seems equally, if not more, objectionable. The clear duty of the agent was to offer the entire stock, (194 shares,) and, if a purchaser could not be obtained for the same, that fact should have been ■communicated to the plaintiff, and direction obtained to sell the same in parcels or to return the scrip. Such course seems reasonable. The agency created was special, and not general, and consequently the instructions should have been strictly followed. In Paley, Ag. (3d Amer. Ed.) 201, the author says: “But a special agent, who is employed about one specific act, or certain specific acts, only, does not bind his employer, unless his authority be strictly pursued; for it is the business of the party dealing with him to examine his authority.” See, also, Skinner v. Dayton, 5 Johns. Ch. 351, 365; Bickford v. Menier, 107 N. Y. 490, 14 N. E. Rep. 438. Chief Justice Ruger, after citing the remark of Judge Comstock in Mechanics' Bank v. New York, etc., R. Co., 13 N. Y. 632, that “underlying the whole subject there is this fundamental proposition, that a principal is bound only by the authorized acts of
Applying that doctrine to the facts of this case, and bearing in mind that the defendant’s claim is for money which the defendant advanced to the Ger-mania National Bank, and that the authority for such advance depended solely upon the power conferred by the letter of instruction to the defendant, which derives no enlargement or support from any reasonable presumption or implication, which in some cases, and under other circumstances, courts-have indulged in favor of bona fide purchasers of personal property, I am unable to discover by what authority the defendant paid to the Germania National Bank for the plaintiff the said sum of $1,440, without first informing the plaintiff of its intention to make such payment, and receiving its assent thereto. The inquiry here involves simply a question of authority, and not of expediency, and consequently it is immaterial whether or not, through the fluctuations of the stock market, the failure to perfect the sale of the 144-shares of stock proved pecuniarily advantageous to the estate of Henry J. Budington. That estate is not represented in this action, and should not be-confounded, it seems to me, in determining the rights of the parties hereto. The plaintiff in this action, not being the owner of the stock, could not be benefited by any advance in price, and consequently that consideration cannot have even an equitable bearing in favor of defendant against the plaintiff herein. The pertinent inquiry is whether the defendant has established, a legal right to withhold from the plaintiff its money upon the pretext insisted upon. The defendant’s claim must rest upon the theory of money paid for the plaintiff at its request, and the facts negative the idea- of any such request, or even acquiescence by the plaintiff in such payment. It appears-that the. instruction to sell the stock was transmitted by the defendant to the Germania National Bank, and therefore both banks acted with knowledge-thereof, and should have followed the instructions contained in the letter, or have asked a modification thereof, as there was abundant opportunity to-do so.
Furthermore, I think the view taken by the learned trial court in regard-to the binding force of the arbitration proceeding, so far at least as the rights of the plaintiff and the Budington estate are concerned, was justified by the-facts established and the law applicable thereto. Neither was heard, or even notified, of the proceeding, and, so far as the evidence seems to disclose, the method by which the damages were adjusted was without precedent, and calculated to work injustice to the owner of the stock. In effect, the plaintiff was called upon to pay $1,440 without being chargeable with any wrongful act, or even a breach of duty, to satisfy the speculative demand of Willoz,. the purchaser of a portion of the stock, awarded to him by such an extraordinary proceeding. The defendant paid the money voluntarily, with a knowledge of all the facts, and without notifying the plaintiff of its intention to make such payment, and now seeks to compel the plaintiff to reimburse it for the money advanced in direct violation of the instruction of the plaintiff and Budington. I am convinced that the decision of the trial court was correct,, and that the judgment should be affirmed, with costs.