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Action by Alberto Brogio against Antonia Gange. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

A. J. Oishei, for appellant.
J. J. Freschi, for respondent.

PER CURIAM. This action was brought to recover commissions claimed to have been earned by plaintiff's assignor in procuring customers for the purchase of two houses owned by the defendant. As the plaintiff failed to prove that he had any written authority from the owner to offer the property for sale, he cannot recover. Peck v. Antes (Sup.) 84 N. Y. Supp. 252.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

RANKIN v. BUSH et al. (Supreme Court, Appellate Division, First Department. April 8, 1904.) 1. PLEADING-DEMURRER-FRIVOLOUSNESS.

A demurrer to a complaint will not be stricken as frivolous unless the frivolousness appears from a mere inspection of the pleading, without ar

gument; justifying an inference that it was interposed in bad faith. 2. SAME-BANKS-UNLAWFUL ACTS OF.CASHIER-COMPLAINT-DEMURRER.

Plaintiff's complaint alleged that he was receiver of the E. Bank, which had a deposit account with the C. Bank, to which defendant, who was cashier of plaintiff's bank, was indebted on May 5, 1893, in the sum of $15,000 and interest; that on that day defendant gave to the C. Bank his personal check on the E. Bank for the amount of his indebtedness, and wrongfully certified the same as its cashier, his deposit account therein having been overdrawn; that the C. Bank charged the amount of the check to the E. Bank's account, credited it to defendant, and had refused to repay to the E. Bank the sum of $8,000 thereof and interest. Held, that since, if such facts were true, the C. Bank, at the time of accepting the check, was put on inquiry as to defendant's authority to certify the same, and his act in so doing being wrongful and without authority, the E. Bank's title to the deposit against which the check was charged was not impaired thereby, and hence a demurrer to the complaint against defendant and his sureties on his bond for the faithful performance of his duties as

cashier, for want of facts, was not frivolous. Appeal from Special Term, New York County,

Action by George C. Rankin, as receiver of the Elmira National Bank, against John J. Bush and others. From an order striking out a demurrer to the complaint, and directing judgment in favor of plaintiff on the pleadings on the ground that the demurrer was frivolous, defendants appeal. Reversed.


Judson A. Gibson, for appellants.
Edward B. Whitley, for respondent.

HATCH, J. This action was brought upon a bond given by John J. Bush, as principal, and the other defendants, as sureties, conditioned and 121 New York State Reporter for the faithful performance by said Bush of his duties as cashier of the Elmira National Bank. The complaint, after making formal allegations of the incorporation of the Elmira National Bank, its insolvency, and the appointment of the plaintiff as receiver, avers that the defendant John J. Bush was elected cashier of said bank, and that he gave a bond, conditioned for the faithful perforinance of his duties, executed by said Bush as principal, and the other defendants as sureties. That thereafter Bush had a deposit account with the bank until it suspended business, and the bank' had a deposit account with the Chase National Bank of the city of New York, where it deposited large amounts, and drew against them. That on or about the 14th day of February, 1891, Bush gave to the Chase National Bank his promissory note for $25,000, and on the 5th day of May, 1893, he was indebted thereon to the Chase National Bank in the sum of $15,000 principal, and $12.50 interest. That on said 5th day of May, 1893, at the office of the Chase National Bank, in the city of New York, Bush signed a check, of which the following is a copy, to wit: “New York, May 5, 1893. Elmira National Bank, Elmira, N. Y.: Pay to the order of the Chase National Bank, Fifteen Thousand twelve and 50/100 Dollars $15,012.50 to


[Signed] J. J. Bush.” At the same time he signed the following statement, written across the face of said check, to wit: "Certified and accepted May 5, 1893. Payable at Chase National Bank, New York. Elmira National Bank, by J. J. Bush, Cashier.” That thereupon Bush delivered the check to the Chase National Bank in payment of his indebtedness as aforesaid, the check was accepted by the bank as such payment, the amount thereof charged to the Elmira National Bank, and the charge against Bush upon the books of the Chase National Bank was canceled, and the sum of $15,012.50 was thereupon withdrawn from the deposit which the Elmira National Bank had with the Chase National Bank. That upon the 5th day of May, 1893, the account of Bush in the Elmira National Bank was overdrawn, and he was without authority to certify the check as aforesaid, and that said certification was also illegal by reason of the statutes of the United States. The complaint further averred that the books of the Elmira National Bank were kept under the direction of Bush, and that no record was ever made on such books concerning the transaction of the said check of $15,012.50. That the said false certification was discovered by the receiver within six months after said May 5, 1893. The complaint further avers that no part of said sum of $15,012.50 has been returned to the Elmira National Bank by the Chase National Bank, except the sum of $7,012.50, which was returned to the plaintiff herein, and that by reason of the dishonest, linfaithful, fraudulent, and criminal act of said Bush aforesaid, the Elmira National Bank is damaged in the sum of $8,000, with interest thereon from said date. Then follows a demand for judgment. To this complaint the defendants demurred upon the ground that the complaint failed to state facts sufficient to constitute a cause of action, and from the order overruling the demurrer, and ordering judgment upon the pleadings, this appeal is taken.

We are of opinion that the demurrer was not frivolous. An order declaring a pleading frivolous can only be justified where the frivolousness appears from a mere inspection of the pleading, and therefore justifies the inference that it was interposed in bad faith. If argument be required to show that the demurrer is bad, then it is not frivolous. Youngs v. Kent, 46 N. Y. 672. As applied to this pleading, we may with propriety use the language of Judge Finch in disposing of a similar question: "In this case the argument has not even satisfied us that the demurrer was not good.” Cook v. Warren, 88 N. Y. 37. It is apparent from the averments of the complaint that the Chase National Bank was a debtor to the Elmira National Bank at the time when Bush drew and certified the check. The act of Bush was illegal and void, and the Chase National bank was not authorized to act thereon, and charge the check to the Elmira Bank, and deduct the amount thereof from the amount of the deposit in its favor with the Chase National Bank. Gale v. Chase National Bank, 104 Fed. 214, 43 C. C. A. 496; Bank of N. Y. N. B. Ass'n v. A. D. & T. Co., 143 N. Y. 559, 38 N. E. 713; Pope v. Bank of Albion, 57 N. Y. 126. The last-mentioned bank had notice that the check drawn and certified by Bush was so drawn and certified for the purpose of discharging a debt held by the bank against Bush. The bank, therefore, was chargeable with notice of all the facts, and was bound to challenge the authority of Bush to make the check and certification in question before it could safely act thereon. It is a well-settled rule that the general power or authority given to an agent to act for his principal does not embrace a case where it appears from the transaction that the agent is a party acting upon the other side. Under such circumstances, authority to act will not be upheld unless it appears that the agent was clothed with such power, and the language conferring it must be so plainly expressed that no other rational interpretation can be placed upon it. Bank of N. Y. N. B. Ass'n v. A. D. & T. Co., supra; Clarke Nat. Bank v. Bank of Albion, 52 Barb. 592; Jacoby & Co. v. Payson, 85 Hun, 367, 32 N. Y. Supp. 1032; Walsh v. Hartford Fire Ins. Co., 73 N. Y. 5. The act of Bush was void and illegal, the Chase National Bank had notice of facts which put it upon inquiry, and; when it assumed to give force and effect to the transaction by the transfer of the money, it did so at its peril. The Elmira National Bank was not divested of its funds by virtue of this transaction, nor was its title to the money defeated thereby. Its right to draw upon the fund was not impaired in the slightest degree. It lost nothing by the transaction, and could not lose, unless, having knowledge, it ratified the transaction. This it has never done, but has at all times insisted upon its legal rights.


The argument in favor of the demurrer is to the effect that, as the Elmira Bank was not deprived of any right or title which it has in its deposit with the Chase National Bank, therefore it sustained no damage by reason of the act of Bush or of the Chase National Bank. There is great force in this suggestion, and we are unable to see how the Elmira Bank could suffer loss through the void act of Bush, and, so long as title to its moneys was not transferred or impaired, it lost nothing on account of the trarısaction. It is said that the Chase National Bank withheld the moneys, and refused to pay over the same upon demand by the Elmira Bank, and that by reason of such act the Elmira Bank sustained damage. There is no averment in this pleadand 121 New York State Reporter ing which shows any such element of damage. If the Elmira Bank suffered any damage on account of the wrongful refusal to pay over the money on demand, it was in its nature special, and would be required to be pleaded in order to be recovered. The wrongful refusal of the Chase National Bank to pay did not change title to the moneys, nor did it in the slightest degree affect the title or impair existing remedies to enforce the rights held by the Elmira Bank. It is evident, therefore, that the demurrer interposed has raised not only an arguable question, but also one which seriously challenges the sufficiency of this complaint.


There are other questions presented by this record, but we do not feel called upon to consider them. The rule in this department is settled by a long series of decisions that a pleading will not be regarded as frivolous unless its insufficiency is apparent upon a bare statement, without argument; and when the trial courts disregard this rule, and adjudge a pleading frivolous, this court has felt constrained to reverse the holding. Manne v. Carlson, 49 App. Div. 276,63 N. Y. Supp. 162; Bedlow v. Stillwell, 45 App. Div. 557, 61 N. Y. Supp. 371; Dancell v. Goodyear Shoe Machinery Co., 67 App. Div. 498, 73 N. Y. Supp. 875; Vlasto v. Varelopoulos, 73 App. Div. 145, 76 N. Y. Supp. 771. No doubt was thrown upon these decisions in Oakes v. Oakes, 55 App. Div. 576, 67 N. Y. Supp. 427. There the question was waived, and, in supporting the judgment entered upon the order in that case, the court expressly stated that the decision was not to be construed in any sense as a departure from the ordinary rule which obtains when the question is fairly presented.

The order in this case is plainly wrong. It should therefore be reversed, with $10 costs and disbursements. All concur.


(Supreme Court, Appellate Term. March 24, 1904.) 1. JUDGMENTS-DEFAULTS-OPENING.

A case had been peremptorily set for trial at plaintiff's instance, and, when reached, plaintiff was not ready to proceed. Thereupon the court dismissed the action, and rendered judgment for costs against plaintiff

, who subsequently procured an order on defendant to show cause why the default should not be opened. At the hearing of the motion, plaintiff's attorney was asked when he would be able to try the case, and was unable to answer. Held, that the court properly refused to open the default. Appeal from Municipal Court, Borough of Manhattan, First District.

Action by the Audit Company of New York against James McNaught and others. From a judgment for defendants, and from an order denying a motion to open a default, plaintiff appeals. Judgment affirmed.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Albert Chas. Asche, for appellant
E. J. Heilner, for respondents.

BLANCHARD, J. This case had been set peremptorily for trial at the instance of the plaintiff, and when it was reached the plaintiff was not ready to proceed. The court thereupon dismissed it, and a judgment for the costs was rendered against the plaintiff. Later the court granted an order directing the defendant to show cause why the default should not be opened, and plaintiff allowed to proceed. When the motion came on to be heard, the court asked the attorney for the paintiff when he would be able to try the case, and, as he was unable to answer, the court denied the motion.

The order denying the motion to open the default was proper, under the circumstances of the case, and the appeal from the order is dismissed, and the judgment affirmed, with costs. All concur.

PEOPLE ex rel. P. F. BHUMGARA CO. v. WELLS et al., Com'rs. (Supreme Court, Appellate Division, First Department. April 8, 1904.) 1. TAXATION-RETURN-FAILURE TO CONTRADICT-ACTS OF COMMISSIONERS.

Where, on an application for reduction of a personal tax assessment, relator filed with the tax commissioners a verified statement showing its assets, indebtedness, and the amount of personal property not subject to assessment, which statement was not contradicted or disputed by the commissioners, they had no power to make an arbitrary assessment, not based

on such return, on the ground that they did not believe a portion thereof. 2. SAME-REASSESSMENT-EVIDENCE.

Where a return to a writ of certiorari to review a tax assessment denied that the assessment was erroneous by reason of overvaluation, or was unequal, in that it was made at a higher proportionate valuation than other real or personal property on the same roll, or that the same was illegal, erroneous, or void on any ground, but the facts set out in the petition on which such claims were made were not denied, and the denials made were unsupported, but were contrary to the admitted facts, there was no issue of fact presented, and hence the Special Term did not err in refusing to take testimony bearing on the questions involved and in reducing the assessment in accordance with relator's statement.

Van Brunt, P. J., dissenting.
Appeal from Special Term, New York County.

Certiorari by the people, on the relation of the P. F. Bhumgara Company, against James L. Wells and others, as commissioners of taxes and assessments. From an order reducing relator's assessment and denying defendants' motion to take testimony, they appeal. Affirmed.


George S. Coleman, for appellants.
Henry W. Rudd, for respondent.

MCLAUGHLIN, J. An assessment of $60,000 was imposed upon the relator's property for the year 1902. After the same had been made, and while the assessment books were open for correction, the relator applied for a reduction thereof, and filed with the tax commissioners a verified statement showing its financial condition for the

f 1. See Taxation, vol. 43, Cent. Dig. § 619.

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