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Mulford v. Muller.

supreme court, against John Cassidy (for whom, on his death pending the suit, James Muller and others, his executors, were substituted), to foreclose a mortgage of land made by Cassidy to secure nine thousand four hundred and fifty dollars with interest. The bond to which the mortgage was collateral stipulated, “it being understood that said Cassidy shall assign and transfer to said obligees five thousand five hundred dollars of a certain judgment,” describing it, which,“ when paid by the city of Brooklyn, shall be received by the said obligees in full for the sum aforesaid.” Cassidy also in the bond guaranteed that the judgment should be paid by a day named. By an assignment bearing even date with the bond and mortgage, Cassidy recited the recovery of the judgment, and assigned five thousand five hundred dollars of it to plaintiffs, adding, “ which sum, when collected, shall be applied by the obligees upon the aforesaid bond.” Cassidy, in the assignment, also covenanted that he would not collect or receive the five thousand five hundred dollars, or interest, nor discharge the judgment, &c. The defense was, that the judgment had been paid, and that the five thousand five hundred dollars extinguished the amount due on the mortgage.

It appeared on the trial that the judgment had been enforced against the city of Brooklyn (formerly Williamsburgh), by an action brought by one Stevenson, an attorney retained by Cassidy. Stevenson was examined as a witness, and testified that he had no authority from the present plaintiffs, but acted under directions of Cassidy in collecting and satisfying the judgment; that Cassidy directed him not to pay the money over to plaintiffs, and threatened to sue him if he did; and directed him to pay a part to a third person.

It was also proved that Stevenson had paid three thousand dollars of the money he had collected to plaintiffs, but refused to pay any more, claiming the residue under an alleged agreement with Cassidy for his services.

Parol evidence that the assignment was intended to be as collateral to the bond and mortgage, and the above statements as to communications between Cassidy and Stevenson, were admitted under defendants' exception. After judgment for plaintiffs, defendants appealed.

Mulford 0. Muller.

D. P. Barnard, for defendants, appellants ;-Insisted that payment to Stevenson was not payment to Cassidy, but to plaintiffs, who by receiving part of the proceeds from him recognized him as their own attorney.

W P. Buffett, for plaintiffs, respondents.

BY THE COURT.-BALCOM, J.—The appellants' counsel contends that the referee erred in allowing the plaintiffs to prove. by Stevenson that he acted under the directions of Cassidy, in collecting the judgment from the city of Brooklyn; and that the referee also erred in permitting Stevenson to testify that Cassidy directed him not to pay the money he received upon that judgment from the comptroller of said city, to the plaintiffs, and threatened to sue him if he should pay such money to them. His position is, that if Stevenson was the attorney of Cassidy, any directions the latter gave the former, and all conversations between them, touching the collection of the judgment and the disposition of the money received thereon, were covered by the seal of professional confidence.

The decisions of the referee in admitting this evidence were so palpably correct, that I need only say the facts testified to by Stevenson were not of the character which an attorney is prohibited from disclosing as a witness without the consent of his client. 1 Greenl. on Ev. § 245.

It is not necessary to determine whether the referee erred in receiving parol evidence of what was said between Cassidy and the plaintiffs' agent, before the assignment of five thousand five hundred dollars of the judgment against the city of Williamsburgh was made to the plaintiffs, to show that the assignment was taken by the plaintiffs as collateral security for a like portion of the money mentioned in the bond and mortgage; for the assignment and bond, themselves, clearly establish that fact.* Those instruments show that the plaintiffs were not to apply the five thousand five hundred dollars, and interest thereon, upon the bond and mortgage, until the same

* That the evidence was admissible, see Britton v. Lorenz, 45 N. Y. 51 ; affirming 3 Daly, 23.

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Mulford o. Muller.

should be collected or received by them, or some agent or attorney for them by their authority.

The question is not whether the plaintiffs could have compelled the city of Brooklyn to pay the five thousand five hundred dollars, and interest, again to them, after the comptroller had paid the same to Stevenson, or whether they could have collected that money of Stevenson after he received it; but whether Cassidy, after Stevenson had collected the money, as his attorney and under his directions, from the city of Brooklyn, and by his directions had refused to pay two thousand five hundred dollars of the same, and the interest, over to the plaintiffs, could compel the plaintiffs to apply the portion not paid over to them, upon the bond and mortgage.

Cassidy covenanted in the assignment of the five thousand five hundred dollars and interest, that he would not collect or receive the same, or any part thereof, nor release nor discharge the judgment; yet Stevenson did all of these things, and retained two thousand five hundred dollars of the money, besides interest, by his directions; and according to the bond as well as the assignment, the plaintiffs were not to apply any portion of the five thousand five hundred dollars, and interest, upon the bond and mortgage, until the same should be collected-which means, collected by them or their agent or attorney, and not by Stevenson, whom they did not employ, and who never professed to act as their agent or attorney.

These facts clearly estopped Cassidy from claiming that Stevenson was the attorney of the plaintiffs in collecting or receiving any portion of the judgment; and also estopped him from insisting that Stevenson did not collect the whole judgment and retain two thousand five hundred dollars of it, besides interest, as his attorney.

The case, therefore, was correctly determined by the referee, and the judgment of the supreme court in conformity therewith should be affirmed, with costs.

All the judges concurred, except DAVIES and ROSEKRANS, JJ., who were absent.

Judgment affirmed, with costs and three per cent. damages

Munroe v. Guilleaume.

MUNROE v. GUILLEAUME.

September, 1866.

*

The omission, in the court below, to prove a foreign statute necessary to

sustain the case of the party, cannot be supplied, on the argument of an appeal in the court of appeals, by reading the foreign statute there,

without proof of authenticity.* A discharge under a foreign bankrupt law is not a bar to an action here

by a creditor who is shown not to have been a subject nor a domiciled resident of the foreign country at the time it was granted, if it does not appear that he ever voluntarily became a party to the bankruptcy proceedings, or received any dividends thereunder.f

John Munroe and others sued Leon Guilleaume, in the New York common pleas. Plaintiffs sued as owners and holders of seven several drafts, drawn at Paris, in France, upon the defendant, at London, payable there and there accepted by him. Plaintiffs were residents and doing business at Paris. The cause was tried by the court without a jury, and judgment given for the plaintiffs.

The facts found were, that the plaintiff's were partners, and that the desendant had accepted the bills, and that the plaintiffs were the owners and holders of the same. The judge also found that the defendant had offered in evidence a certificate of conformity, called a discharge under the English bankrupt act, also a copy of the balance-sheet, so called, and two newspapers containing some publications in reference to the proceedings in bankruptcy; and the court decided, as matter of law, that a discharge of the defendant under the English bankrupt laws did not, under the circumstances of this case as established by the proofs, constitute a defense in this action to the plaintiffs' claim.

.

* Compare Hunt o. Johnson, 44 N. Y. 27; Bradley v. Mut. Ins. Co., 45 Id. 422 ; reversing 3 Lans. 341 ; Robert v. Good, 36 N. Y.408 ;

affirming Robert o. Donnell, 2 Daly, 64 ; Jarvis v. Sewell, 40 Barb. 449.

+ Compare Soule o. Chase, 39 N. Y. 342; reversing 1 Robt. 222 ; S. C., 1 Abb. Pr. N. S. 48; 36 N. Y. 169; Pratt v. Chase, 44 N. Y. 597; reversing 19 Abb. Pr. 150; 29 Hor. Pr. 296.

Munroe o. Guilleaume.

The common pleas, at general term, held, that as the statute under which the certificate was given was not put in evidence, the effect of the certificate was not made to appear, and as a consequence, its being put in evidence amounted to nothing.

Defendant appealed to this court.

Augustus F. Smith, for plaintiffs, respondents.-An English discharge in bankruptcy has no effect in this State Abraham v. Plestoro, 3 Wend. 538; Johnson v. Hunt, 23 Jd. 87; Harrison v. Sterry, 5 Cranch, 289; Ogden v. Saunders, 12 Wheat. 358, 361.

Henry H. Morange, for defendant, appellant.--The debt was extinguished by the discharge in bankruptcy. A discharge from the contract according to the law of the place where it is made, or where it is to be performed, is good everywhere, and extinguishes the obligation of the contract. Matter of Coates, p. 231 of this rol.; Matter of Bonasse, 23 N. Y. 169. This court, on this appeal, will look at the statutes of Great Britain ander which the discharge was given. Cutler v. Wright, 22 N. Y. 472.

BY THE COURT.-DAVIES, Ch. J. [Aster stating the facts.) The only question presented on this appeal for consideration is, whether this finding of law (that the discharge was not a defense) was correct.

1. The defendant made no proof of the statutes of Great Britain, and the court had not, therefore, any evidence of the effect or force of the certificate produced.

The counsel for the appellant is mistaken in supposing that under the anthority of Cutler v. Wright, 22 N. Y. 472, that omission could be supplied, on the argument in this court, by reading the same here. That case only went to the extent of holding that, as the Revised Statutes of this State (1 R. S. p. 165, § 17), provide that the statutes of every other State of this Union are required to be deposited in the State library, it was competent, under the direction contained in section 426 of the Code, to read therefrom, on the argument in this court, any statute so deposited, published by the authority of any

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