house, situate at No. 73 Market Street, Newark, N. J." The goods had previously been insured in a dwelling house at 534 Warren street, Newark, N. J. The defendant knew that they were to be placed in storage, and that such storage was to be in Van Horn's Warehouse, as it issued its transfer of the risk to that place, and it charged and received an increased rate of premium therefor. No particular part of said warehouse was named, and the clear intent of the parties was that the goods should be stored, and stored in the identical warehouse to which they were taken and in which they were destroyed. It is not claimed that No. 73 Market street is or ever was used for any other purpose or designated by any other name than Van Horn's Storage Warehouse, except that Van Horn also kept furniture, etc., for sale therein; and, as appears by the testimony, it was the entrance of, and formed part of, the building in which the goods were actually located. The decision in the Bryce Case was based upon the fact that the building "was so constructed as to be of many divisions, practically separate from each other, for safety from fire, and treated as distinct in making contracts of insurance. Certainty of description needed some expression of what division it was in. This was the office of 'Letter C. If that phrase be rejected, and no truthful phrase be inserted, the description fails to show just where in Patterson Stores the property was placed. That phrase, though false, might harm, for it pointed the description to a wrong place, and some equivalent for it was needed to complete a truthful description." There was nothing contained in the policy in the case at bar specifying more than that the goods were "in A. H. Van Horn's Storage Warehouse," and they were there when burned. If we concede that the words "situate, at 73 Market Street" are false, nevertheless the rule laid down in the Bryce Case is "that there must be in the description so much that is true, as, casting out that which is false, there is still enough left to clearly point out the place in which is the property." Judged by that standard, the reference to the street number, disregarded as being incorrect, leaves the designation of "in Van Horn's Storage Warehouse, Newark, N. J.," as a clear and plain description of the location of the insured property. "The addition of a falsity or error in a description is never allowed to hurt, where, upon rejecting it, sufficient particulars remain to designate with certainty the object intended to be described." Burr v. The Broadway Ins. Co., 16 N. Y. 267. In the latter case the property was insured as being in "a 32-story brick building, slate roof, coped, occupied as a patent cordage manufactory, situate on No. West Corner of First and South Eighth Streets." The goods covered by the policy were described as "lignum vitæ in the cellar of said building.' The plaintiffs owned two brick buildings on the west corners of the designated street; the northwest one having no cellar, and the southwest having a cellar containing the goods insured. The defendant claimed that the two letters "No." immediately preceding the words "West corner of First and South Eighth Streets' should be read "North," which would leave no doubt that the building insured was not the one containing the goods that were destroyed. It was held that, excluding from the description that part which designated the corner, "sufficient remains to render certain the building to and 121 New York State Reporter which the contract relates." To the same effect are Hatch v. New Zealand Ins. Co., 67 Cal. 122, 7 Pac. 411; Baker v. State Ins. Co., 31 Or. 43, 48 Pac. 699, 65 Am. St. Rep. 807. In the Bryce Case it was said that: "Though there was a warehouse known as 'Patterson's Stores' it was made up of several divisions, as distinct, for the purpose of storing property and of the insurance against it, as the dwelling houses in a block, and that to know the place of the property needed the naming of the section of the building in which it was." In the case at bar the storage warehouse consisted of connecting rooms or lofts, nothing but archways between the storage rooms, and the entrance being upon Market street. The complaint herein was dismissed at the close of the plaintiff's case, and the most favorable inferences must be found in favor of the plaintiff. Plaintiff's assignor testified: "When I went there after the fire to see my goods I entered at 73 Market street. I went to the elevator, went up two floors, then crossed the bridge I spoke of, and went up another flight into the place where the goods were. The bridge was a wooden structure, closed roof, sides, and all, and seemed, while we were going through, as if we were all in one building." I think that it may well be said that No. 73 Market street was a portion of the Van Horn Storage Warehouse, and that it not only appears that the description of the location of the warehouse was correctly given, but that, if we eliminate the words "situate No. 73 Market Street" from the description entirely, sufficient remains to clearly point out the location of the insured property, and that therefore the judgment must be reversed. Judgment reversed and new trial ordered, with costs to the appellant to abide the event. All concur. GOETTING v. DAY et al. (Supreme Court, Appellate Term. March 24, 1904.) 1. CHECKS-NEGOTIATIONS-INDORSEMENT-PRIMA FACIE CASE. Where plaintiff purchased defendant's check from S., to whom it was made payable, and S. was known to plaintiff to be the person whose name was indorsed on the check, proof of such facts prima facie established a valid indorsement. 2. SAME-BONA FIDE PURCHASER-Knowledge of DEFECTS. S. exchanged checks with defendant, receiving a check from defendant payable to S.'s order, which he indorsed and took it to R., who indorsed it and procured it to be cashed by the H. Bank. Defendant, ascertaining that the check given him by S. would not be paid, stopped payment on the check given to S.; but he, through R., had already obtained the money on defendant's check from the bank. The bank's clerk thereafter demanded and received the money from R., who returned the check to S. after striking out R.'s indorsement thereon. S. thereupon delivered the check to plaintiff, to whom he was known, in payment of a smaller debt, and a part of the balance in cash, the remainder of which plaintiff agreed to pay to S. the succeeding day, on cashing the check; S. having informed plaintiff that defendant was indebted to him, that the check was in part payment, and that R. had indorsed the check in order to get it cashed to accommodate S., but, not being able to do so, had erased his indorsement. Held, that plaintiff was the holder of the check in due course, and having no actual knowledge of any infirmity or defect therein, or knowledge of such facts, his action in taking the check did not amount to bad faith, within Negotiable Instrument Law, § 95, and he was entitled to recover the amount he had advanced to S. thereon from defendant. Appeal from Municipal Court, Borough of Manhattan, Tenth Dis trict. Action by Ernest C. Goetting against Frederick G. Day and another. From a Municipal Court judgment in favor of defendants, plaintiff appeals. Reversed. Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ. Hugo H. Ritterbusch, for appellant. FREEDMAN, P. J. There is no dispute as to the facts in this case. On July 3, 1903, the defendant Smith exchanged with the defendant Day a check drawn by one Hamilton upon the Trust Company of the Republic for Day's check, payable to Smith's order, for the sum of $200. Smith indorsed Day's check and took it to one Richtie, who also indorsed it and procured the same to be cashed by the Hanover Bank. Day, ascertaining that Hamilton, the maker of the check held by him, had no account with the trust company, stopped payment on the check he had given Smith; but Smith, through Richtie, had already obtained the money upon Day's check from the Hanover Bank. Thereupon a clerk from the Hanover Bank went to Richtie's office, and, finding Smith and Richtie there, demanded the return of the money paid by the bank upon Day's check. Richtie thereupon paid the clerk $200, who handed the check to Richtie. Richtie thereupon drew several lines through his name indorsed upon the check, and gave the check to Smith. The same day Smith, who was owing the plaintiff the sum of $28.60, called at the plaintiff's place of business, and, saying that he (Smith) wanted to pay his bill, gave the plaintiff the check in payment thereof, and obtained $65 in cash, the balance to be paid by plaintiff to Smith when the check was cashed; Smith saying he would call for the balance, of $109.95, on the following Monday. Smith at that time told the plaintiff that Day, the maker of the check, was indebted to him (Smith) in the sum of $800, of which the check was a part payment, and that Richtie had indorsed the check and endeavored to get it cashed to accommodate Smith, but, not being able to do so, had erased his indorsement. The plaintiff knew Smith, and had no reason to believe that his story was untrue. Upon presentation of the check to the bank, he found that payment had been stopped. He thereupon brought this action to recover the sum of $93.60. The defendant upon the trial-claiming that there was no proof of the indorsement of the check by Smith, and that there being enough suspicious circumstances to put the plaintiff upon his guard, and to require him to make inquiries as to the validity of the check, he was therefore not a "holder in due course," and took the check subject to and 121 New York State Reporter all equities-obtained a judgment in his favor, from which the plaintiff appeals. Smith did not appear in the action, never having been served. It was not necessary for the plaintiff to prove the handwriting of Smith upon the check. Smith presented the check to the plaintiff in person, with his (Smith's) name written thereon. Smith was known to plaintiff, and plaintiff knew him to be the person whose name was indorsed upon the check; and it is undisputed that the person who presented the note to the plaintiff was the same person to whom the check was made payable, and to whom the check was delivered by the defendant. This makes out at least a prima facie showing of a valid indorsement. Greenleaf on Evidence (Lewin's Ed.) vol. 2, § 165; Reinhard v. Dorsey Coal Co., 25 Mo. App. 350, 353. Under section 91 of the negotiable instrument law (Laws 1897, p. 732, c. 612), the plaintiff was the holder of the check in due course. IHe became the holder before it was overdue. It was complete and regular on its face. Plaintiff had no notice that payment had been stopped, or of any infirmity or defect of the title of the person from whom he obtained it, and he paid $65 in cash for it. The erasure of Richtie's name was plausibly explained, and section 95 of the negotiable instrument law provides that, to constitute notice of an infirmity in the instrument, or defect in the title, the person to whom it was negotiated "must have had actual knowledge of the infirmity or defect or knowledge of such facts that his action in taking the instru ment amounted to bad faith." None of these elements appear in the transaction between Smith and the plaintiff. See, also, Am. Ex. Nat. Bank v. N. Y. Bill & Pack. Co., 148 N. Y. 698, 704, 705, 43 N. E. 168; Cheever v. Pittsburg R. R. Co., 150 N. Y. 59, 65, 66, 44 N. E. 701, 34 L. R. A. 69, 55 Am. St. Rep. 646. Of course, under section 93 of the negotiable instrument law, plaintiff can recover no more, after notice of infirmity in the instrument. than the amount actually paid; and whether, under the facts disclosed upon the trial, the plaintiff can recover more than the sum of $65, need not now be determined, as, upon a new trial, which must be had, other facts and circumstances in addition to those contained in the present record may be shown, bearing upon that question. Judgment reversed and new trial ordered, with costs to the appellant to abide the event. All concur. BLUMBERG v. MARKS. (Supreme Court, Appellate Term. May 21, 1903.) 1. CONTRACTS-CONSTRUCTION-INTEREST OF MORTGAGEE. An agreement that "whatever interest" a first mortgagee has in prop erty to be sold at a foreclosure sale under a second mortgage shall be transferred to the proceeds, "and that such interest, stated by" plaintiff to be $712.40, shall be first paid by the auctioneer from the proceeds, does not authorize the first mortgagee to recover more than his interest as shown by the amount due on his mortgage. 2. QUESTION FOR JURY-CONFLICTING EVIDENCE. Where the evidence on an issue is conflicting, the issue must be submitted to the jury. Appeal from City Court, Trial Term. Action by Isaac Blumberg against Marcus Marks. From a judg ment for plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and TRUAX and GILDERSLEEVE, JJ. Ira Leo Bamberger, for appellant. FREEDMAN, P. J. The facts as shown by the testimony in this case are substantially as follows: One Levin on March 29,1901, executed a chattel mortgage covering a number of machines to one Morris Adler. Adler in July, 1902, authorized one Bausher, a marshal, to take possession of the goods covered by said mortgage, and foreclose the mortgage by a sale of the said goods. The goods were taken under the mortgage, and advertised to be sold at public sale to the highest bidder at the warerooms of the Underwriters' Salvage Company, where they had been stored by the marshal, and the defendant was the auctioneer engaged to make the sale. The plaintiff herein, claiming to have a mortgage on the same goods dated March 28, 1901, one day prior to the Adler mortgage, made an agreement in writing with Adler, which, among other things, provided that: "Whatever interest said Isaac Blumberg now has, or did have, if any, in said Machines, or either or any of them, shall be, and the same is hereby transferred to the proceeds to be realized upon the said public sale, and that such interest, stated by said Blumberg to be $712.40 shall be first paid by the auctioneer out of the proceeds to be realized upon said sale." On the day of the sale a duplicate copy of this agreement was delivered to the defendant. The total amount of bids made for the property upon the sale aggregated over $712.40, after deducting charges, etc. Upon this state of facts, the plaintiff claims that the defendant is liable to him in said sum of $712.40. The complaint alleges "that there was delivered to the defendant," who was a public auctioneer in this city, "certain chattels, upon the express agreement that defendant was to dispose of said chattels at public auction; that defendant promised to pay plaintiff $712.40 on condition that the selling price of the chattels aggregated $712.40 above commissions, and that said chattels were sold for the sum of $712.40 above charges and commissions, and that plaintiff has demanded said sum of defendant; and that defendant has refused to pay said sum to plaintiff." Assuming that the complaint was sufficient, the judgment should be reversed for the reason that the plaintiff could not recover more than his interest in the goods sold, as evidenced by the amount due upon his chattel mortgage. The agreement provided that whatever "interest said Blumberg now has, or did have, if any," shall be "transferred to the proceeds to be realized" upon said sale, and that said "interest, stated by said Blumberg to be $712.40 shall be first paid," etc. It is clear that whatever interest Blumberg had in his prior mortgage was all that he would be entitled to recover from the proceeds of the sale. That he "stated such interest to be $712.40 did not entitle him, under the terms of the agreement, to recover that amount, unless it was 87 N.Y.S.-33 |