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whereon to found an affirmative defense in his behalf.

Drake v. Thayer, 5 Robt. 594.

A plaintiff is not bound to furnish a statement of payments or offsets which he has voluntarily credited. Ryckman v. Haight, 15 Johns. 222; Williams v. Shaw, 4 Abb. Pr. 209. Where he has done so in such manner as by mistake to have periled his right or made ambiguous his meaning, an amendment allowed would not be an unwarranted discretion. But in this case the defendant went to judgment without once relying upon the alleged admission, or drawing attention to it, or claiming anything under it. He sees the evidence which defeats it offered and given in silence; and not until the decision is made, when opportunity for amendment is gone, does he raise the point. We think that is too late and furnishes no just ground for a reversal of the conclusion reached. The judgment should be affirmed, with costs. All concur, except Ruger, Ch. J., not voting.

William A. LEWIS, Appt.,

v.

Charles BARTON, Appt., and Helen F.
Barton et al., Respts.

1. The usual rule for the construction of pleadings applies as well to an answer of usury as to one setting up any other defense.

2. The defense of usury is not inconsistent with the admission of the averments in the complaint. Where the case turns wholly upon the defense of usury, it is unimportant that there is no sufficient denial in the answer of the averments in the complaint.

3. Where the plaintiff, when he took a note, and a mortgage as collateral security,

had notice that the note was accommodation paper, the certificate and affidavit of the mortgagor made cotemporaneously with the note that it was business paper and was given for a full consideration, and was subject to no defense, constitute no estoppel against his setting up the defense of usury to defeat the mortgage.

4. On appeal to this court, it cannot regard a reversal below as having been made on the facts unless this appears from the order of reversal.

(Decided June 7, 1887.)

The defenses were usury and an extension of time of credit to the principal debtor, without the consent of the sureties.

The case was tried at the Monroe Equity Term before the court without a jury, who found the facts as follows:

1. That on the 14th day of December, 1876, it was agreed between the plaintiff and one Charles W. Briggs, who was engaged in business under the firm name of Briggs Brothers, that the said Briggs Brothers should execute their promissory note to the order of John T. Briggs, for the sum of $5,000, and interest from December 14, 1876, payable in nine months from date, and should procure the same to be indorsed by said John T. Briggs and Charles Barton, for the accommodation of said Briggs Brothers. And it was further agreed that the defendants, Charles Barton and Charles F. Sargent, as a collateral security for the payment of said note, should execute and deliver to the plaintiff their bond, in manner and form as set out in the complaint, to be secured by a mortgage executed by the defendants Charles Barton and Charles F. Sargent, Helen F. Barton and Esther J. Sargent, as is alleged in the complaint. And it was further agreed that upon the delivery of said papers to said plaintiff he would loan and advance to the said Briggs & Brother $3,000 in money, and should deliver to them three promissory notes of third parties of the nominal value of $1,500.

2. That said promissory notes so delivered to Briggs & Brother were not worth the said sum of $1,500, but were worth much less, which was well known to plaintiff and to Briggs & Brother.

3. That on the 15th day of December, 1876, in pursuance of said agreement, said plaintiff loaned to Briggs & Brother the said sum of $3,000, and turned out said three notes to them, and received therefor the said note for $5,000, and said bond and mortgage.

4. That said transaction was had between the

plaintiff and said Briggs & Brother with the intent on the part of the plaintiff to take, and on the part of Briggs & Brother to pay, a usurious rate of interest for the loan and advance of & Brother did pay and the said plaintiff did rethe said sum of $3,000, and that the said Briggs ceive for the loan and advance of said $3,000, the sum of $500, and the difference between the actual and nominal value of the said notes, in addition to the rate of 7 per cent yearly.

5. That at the time of the indorsement of said note and of the execution of said bond and mortgage, said Barton signed a certificate that said note was valid business paper, and was made for a full consideration, and was not made for the purpose of raising money, and that there was no defense thereto for want of considera

CROSS appeals from a judgment of Supreme tion, usury or otherwise.

Court at General Term in the Fifth Department, reversing in part a judgment of the Monroe Equity Term in favor of defendants in an action to foreclose a mortgage. Reversed.

This action was brought to foreclose a mortgage given as collateral security for a certain note drawn by Charles W. Briggs, under the name of Briggs Brothers, to the order of plaintiff, and indorsed by John T. Briggs and Charles Barton for the accomodation of Briggs Broth

ers.

6. That said statement was not true, and was known by plaintiff not to be true, and he did not rely upon it when he took the note.

As conclusions of law the court found: 1. That the notes indorsed by the defendant Barton, and the said bond and mortgage, are usurious and void.

2. That the defendants, Charles Barton, Helen F. Barton, Charles F. Sargent and Esther J. Sargent, are entitled to judgment that the complaint of the plaintiff be dismissed, and

that they recover their costs against the plaint- | cipal had distinctly misrepresented the chariff.

Judgment was entered accordingly. Upon appeal by plaintiff to the general term the judgment was affirmed as to the defendants Sargent and wife and Mrs. Barton, but was reversed as to Charles Barton, and a new trial awarded; whereupon, plaintiff and defendant Charles Barton appealed to this court.

Mr. J. E. Roe, for plaintiff:

Usury is an affirmative defense and must be clearly proved.

Valentine v. Conner, 40 N. Y. 252; Morris v. Talcott, 96 N. Y. 107.

The transaction was not, and it was not proven to be, a loan of money, but a sale of commercial paper, accompanied with a collateral bond and mortgage as a pledge or security for its payment.

Tyler, Usury, 118-130, § 91; Ingalls v. Lee, 9 Barb. 647; Rapelye v. Anderson, 4 Hill, 472, 481; Sutherland v. Woodruff, 26 Hun, 411; Cobb v. Titus, 10 N. Y. 198, and cases cited.

This is not an action upon the note, but upon Barton's indorsement upon it; or, rather, upon defendants' guaranty or undertaking to see it paid. A contract of indorsement is one independent of the note.

See Morford v. Davis, 28 N. Y. 481, 485 and Archer v. Shea, 14 Hun, 493.

The defendants were shown to have themselves received the avails of this transfer through McFaul, their agent; and the mortgage in evidence expressly admits its receipt by them.

Dauber v. Blackney, 38 Barb. 432. Barton was estopped by his affidavit from saying that his contract of indorsement on the note was invalid.

Mason v. Anthony, 3 Keyes, 609; Erwin v. Downs, 15 N. Y. 575; Morford v. Davis, 28 N. Y. 481, 485.

The other parties are bound by the oral representations of the parties who procured the loans.

Piatt v. Newcomb, 27 Hun, 186; Ahern v. Goodspeed, 72 N. Y. 108; Littauer v. Goldman, 72 N. Y. 507; Ross v. Terry, 63 N. Y. 613.

Was not this mortgage security, or guaranty, executed directly to the plaintiff, by the other defendants, equivalent to an indorsement of the note by them, and this even aside from the mentioned representations?

Brown v. Curtiss, 2 N. Y. 226; Allen v. Rightmere, 20 Johns. 365.

Having guarantied the note, were they not estopped from saying it was invalid?

Dauber v. Blackney, 38 Barb. 432. By reason of the oral as well as written representations, all of the defendants were estopped. Platt v. Newcomb, 27 Hun, 186; Ahern v. Goodspeed, 72 N. Y. 108; Littauer v. Goldman, 72 N. Y. 507; Union Dime Sav. Inst. v. Wilmot, 94 N. Y. 225.

Where the principle is estopped, the surety is estopped also. Briggs as well as Barton represented the paper as business paper, and as belonging to Barton at the time of its transfer. Brandt, Suretyship, 518-521; 1 Greenl. Ev. 186; Mc Williams v. Mason, 31 N. Y. 298, 302; Me Naught v. McClaughry, 42 N. Y. 22; Western N. Y. Life Ins. Co. v. Clinton, 66 N. Y. 326, 331; Howe Machine Co. v. Farrington, 82 N. Y. 126. These authorities hold that even if the prin

acter of the note to the surety, this would not avail them as a defense as long as plaintiff did nothing to mislead them. Their remedy would be against the one who had deceived them. It was not necessary that the plaintiff seek and make inquiries of the surety.

Mc Williams v. Mason, 31 N. Y. 302.

No allegation of the complaint is controverted. The answers deny "each and every allegation of the complaint,"-except what? The answers do not in any way point out or say what, but simply go on with a statement more or less in conflict with the complaint. They do not even state that they deny such allegations as are not thereafter admitted or modified; and even such form is held to put nothing in issue.

Thierry v. Crawford, 33 Hun, 366; McEncroe v. Decker, 58 How. Pr. 250.

That it does not constitute a general denial is also equally evident, for the obvious reason that it does not deny all, but denies all except a statement more or less in conflict with the complaint; and hence, it in no way points out what is or what is not controverted, and hence, does not controvert anything, and the plaintiff was entitled to judgment under section 522 of the Code, against all the defendants, upon his motion, and the ruling denying it was error.

Clark v. Dillon, 97 N. Y. 370, 373, 15 Abb. N. C. 261, note; Fleischmann v. Stern, 90 N. Y. 110, 113; Paige v. Willet, 38 N. Y. 28; Miller v. McCloskey, 9 Abb. N. C. 303.

Mr. George Yeoman, for defendants:

The trial court was right in not finding Charles Barton estopped from defending upon the ground of usury, and its decision will not be reviewed here.

Sherwood v. Hauser, 94 N. Y. 626; Baird v. Mayor, 96 N. Y. 576-577.

It is submitted that the general term was in error if it reversed upon the facts.

But since it does not appear, except from the opinion, that the court reversed upon the facts, the question here is: Was there any evidence sufficient in law to sustain the judgment?

Kane v. Cortesy, 1 Cent Rep. 245, 100 N. Y. 132; Sheldon v. Sheldon, 51 N. Y. 354; Weyer v. Beach, 79 N. Y. 409.

Andrews, J., delivered the opinion of the court:

We think the answer sets out with sufficient distinctness and accuracy the transaction constituting the alleged usury as proved on the part of the defendants, and that there was no essential variance. It alleges in substance that Briggs Bros., the maker of the note to which the mortgage in question was collateral, applied to the plaintiff for a loan of $5,000, for nine months, and that it was thereupon agreed between them that the plaintiff would loan to Briggs Bros. $3,000, for the time stated, and transfer to them three notes he then held against third parties, amounting in the aggregate to $1,500, upon receiving the note of Briggs Bros. for $5,000, payable in nine months, with interest, and that the transaction was consummated as proposed between the plaintiff and Briggs Bros., and the note of $5,000, given, indorsed by the defendant Barton and by John T. Briggs for the accommodation of the makers, and that

the mortgage sought to be foreclosed was a further security to the plaintiff for the loan. The answer also alleges that the transaction was usurious and in violation of the statute. There is some lack of precision and certainty in the averments in the answer, but the plaintiff could not have been misled in respect to the defense intended, or as to the circumstances relied upon to support it. The usual rule for the construction of pleadings applies as well to an answer of usury as to one setting up any other defense. Nat. Bank of Auburn v. Lewis, 75

N. Y. 516.

The claim that there was no sufficient denial in the answer of the averments in the complaint, if well founded, furnishes no ground of error. The defense of usury was not inconsistent with the admission of the averments in the complaint; and as the case turned wholly upon that defense, it is unimportant that the defendants may have admitted what but for the existence of the usury would have constituted a cause of action. On the merits the evidence was conflicting. The plaintiff was sworn as a witness in his own behalf. He admitted that he advanced only $3,000 in money and $1,500 in notes, for the note of $5,000 and the mortgage.

It was not disputed on the trial that the note of $5,000 had its inception on its transfer to the plaintiff, nor that the defendant Barton was an accommodation indorser for the makers. But the plaintiff testified in substance that he bought the $5,000 note as business paper at the time that it was such, and that he took it in reliance upon the credit of the parties to the paper and the mortgage of Barton, and also upon the certificate of the makers and indorsers of the note and the affidavit of Barton, the mortgagor, executed cotemporaneously with the note, that it was business paper, and was given for a full consideration, and was subject to no defense of want of consideration, usury, or otherwise."

On the other hand, evidence was given on the part of the defendants tending to show that the plaintiff, when he took the note and mortgage, had notice that the note was accommodation paper.

Upon this ground the learned judge at special term held that the certificate and affidavit of Barton constituted no estoppel against his setting up the defense of usury against the mortgage. This was manifestly right, upon the basis of the facts which the evidence of the defendants tended to establish.

But the general term, as appears from their opinion, reversed the judgment of the special term in favor of the defendant Barton, on the ground that the preponderance of evidence was in favor of the contention of the plaintiff that he took the note, supposing it to be business paper, and without notice that Barton was an accommodation indorser, and that therefore Barton was estopped by his certificate and affidavit from defeating the mortgage on the ground of usury.

But in the posture of the case on the appeal to this court, we cannot regard the reversal below as having been made on the facts, because this does not appear from the order of reversal; and we are bound to presume that the reversal was on questions of law only.

On

looking at the exceptions, we find none upon which the order of reversal can stand.

The question of pleading has already been considered. Exceptions were taken to findings of the trial judge that the transaction in its origin was a loan from the plaintiff to Briggs Bros. upon security of the note and mortgage, and that the plaintiff, when he took the note and received the certificate and affidavit of Barton, knew his relation to the note, and did not rely upon the truth of the representations contained therein, and various exceptions were taken to the admission and rejection of evidence.

There was evidence, we think, to support the findings excepted to; and we can find no exception to the admission or rejection of evidence, which presents any material error. Dealing with the case, therefore, as we must, as one involving questions of law only, our conclusion is that the order of the General Term should be reversed, and the judgment of the Special Term affirmed. All concur.

David LEVY et al., Appts.,

v.

Robert SALOMON, Respt.

1. The clause in chapter 672 of Laws of 1886, amending section 111 of the Code of Civil Procedure, that 66 No person shall be imprisoned within the jail liberties of any jail for a longer period than six months upon any execution or other mandate against the person," refers only to final process issued after the amount due from the person so imprisoned has been adjudged, and does not apply to a person imprisoned within the jail liberties under an order of arrest issued before a recovery has been obtained.

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APPEAL from an order of the Supreme

Court at General Term in the First Department, affirming an order of the Special Term discharging defendant from the limits and canceling his bond. Reversed.

The facts and questions raised appear from the opinion.

Mr. Wales F. Severance, for appellants:

The order is appealable to this court. It affects a substantial right, i. e., the right of a creditor to hold his debtor in arrest for the satisfaction of his debt, and possibly the right to prosecute the limit bond and realize his claim in such proceeding.

The Act of 1886 does not apply to cases where the defendant is held on an order of arrest.

N. Y. Cent, etc. R. R. Co. v. Shepherd, 10

N. Y. Civ. Proc. Rep. 153; Warshauer v. | below, upon the sole ground that under the orWebb, 10 Civ. Proc. Rep. 169; People, Rodding, der of arrest his imprisonment had continued /v. Grant, 10 Civ. Proc. Rep. 174; Dalon v. six months, and he was therefore entitled to a Kapp, Daily Reg. Oct. 27, 1886; 11 Civ. Proc. discharge under the provisions of section 5, Rep. 58; People, Cohen, v. Grant, Daily Reg. chap. 672, of the Laws of 1886, amending secOct. 21, 1886; 11 Civ. Proc. Rep. 55. tion 111 of the Code of Civil Procedure.

The effect of the construction contended for in the court below is this: that in actions involving less than $500, the plaintiff, in order to avail himself of the remedy of execution against the person, must recover judgment and issue execution within three months in the one case, and six months in the other.

Defendant has twenty days to answer, fourteen days' notice of trial, execution against property sixty days, before execution can issue against the person, in all ninety-four days, which exceeds the three months limit by four days, leaving the plaintiff no time whatever to bring the action to trial, although in New York County no action can be reached on the calendar for trial in less than six months after issue joined, and in sixteen counties of the State there are but two circuits a year. The Legislature never could have intended this; and the court will not construe a statute so as to produce an unjust, absurd and grotesque result.

Potter, Dwar. Stat. p. 189, 197, 207; 10 Civ. Proc. Rep. 170.

The word "mandate" used in the Act was not intended to cover mesne, but only final process.

Warshauer v. Webb, 10 Civ. Proc. Rep. 170. The words, other mandate, refer to some other mandate of the same character as that designated by the preceding word.

On the other hand, the plaintiffs contend that the statute applies to an imprisonment on final process only. We are of that opinion. The general title of the Act of 1886, supra, is "An Act to Amend the Code of Civil Procedure;" and the particular portion on the interpretation of which the defendant relies is the amendment of section 111 of the Code. original section (111) relates to the support of prisoners in Kings County. The amendment introduces new matter, as to the meaning of which nothing can be gathered from the context.

The

It declares in the first clause that no person shall be imprisoned within the prison walls of any jail for a longer period than three months, under an execution, or any other mandate against the person to enforce the recovery of a sum of money less than $500 in amount, or under a commitment upon a fine for contempt of court in nonpayment of alimony or counsel fees in a divorce case, where the amount so to be paid is less than the sum of $500; and where the amount in either of said cases is $500 or over, such imprisonment shall not continue for a longer period than six months; and requires the discharge of such person at the expiration of those respective periods.

Then follow these words: "No person shall be imprisoned within the jail liberties of any jail for a longer period than six months, upon any execution or other mandate against the person."

In construing a statute, when a specific word is used, followed by an indefinite one, the latter is controlled by the former; and "noscitur a sociis," as is judicially expressed. These sentences are, I think, to be read to90 N. Y. 218; 99 N. Y. 209. See also, Chap-gether, and so read admit of but one meaning, man v. Forsyth, 2 How. 202, 208 (43 U. S. bk. viz.: that no person whose condition answers 11, L. ed. 236, 238); 77 N. Y. 430; McGaffin v. the terms referred to in the first clause, shall be City of Cohoes, 74 N. Y. 387; Corning v. Mc- imprisoned either within the walls of a jail or Cullough, 1 N. Y. 47, 69; Aikin v. Wasson, 24 within the jail limits for a time exceeding six N. Y. 482; Chegaray v. Jenkins, 3 Sandf. 409, months; and if the recovery for the enforce413; 28 Hun, 495, 496; 27 Hun, 344, 345; 65 ment of which the execution or other mandate How. Pr. 442, 445; 98 N. Y. 585, 595. is issued, or the amount required to be paid by the commitment is less than $500, then his imprisonment within the prison walls shall not exceed three months. This is the only distinction applicable under the first clause, where the debtor is in close confinement, while under the second, when as to the walls of the jail and within certain limits, he is at large, the amount of the recovery or sum to be paid is unimportant.

Mr. Alex. Blumenstiel, for respondent.

Danforth, J., delivered the opinion of the

court:

The record shows that the plaintiffs sued to recover personal property, and on the 9th of February procured the defendant's arrest upon the ground that he had concealed, etc., a part of the chattels, to recover which the action was brought. On the same day the defendant gave a bond for the jail limits, and has since been confined within them. It may be inferred that the cause is at issue; but it has not been tried, nor has any judgment gone against the defendant. Upon an affidavit showing his arrest and continued imprisonment as above stated, the defendant procured an order requiring the plaintiffs to show cause why he should not be discharged from the limits and "from arrest herein", and the bond given by him be canceled and annulled. The motion was granted. Upon appeal to the general term the decision was affirmed, and the plaintiffs appeal to this court.

The defendant justifies the order of the court

The respondent concedes that under the first sentence only a final process or mandate, after an adjudication fixing the amount due, is referred to, but argues that the change of language in the second clause or sentence indicates a change in the intention of the Legislature, and a design to make it more extensive in its application than the former; that although the first included only final process or mandate, the second is of wider signification, and includes all mandates against the person, and so includes simple orders of arrest issued at the time of the commencement of the action and before any recovery.

This would require us to hold that the Legislature intended to alter the description of the

process, by virtue of which the imprisonment was had, rather than the description of the place of imprisonment. I find no reason for doing this. The statute, in the first place, characterizes the process as "an execution or any other mandate against the person to enforce the recovery of a sum of money;" and in the next sentence, speaking of the imprisonment in a different place, repeats the words, "upon any execution or other mandate against the person,' but does not again use the descriptive or qualifying words. This may have been to avoid the repeated use of the same words. They are to be implied, for the statute relates to a single matter, the relief of the imprisoned debtor; and this would be greatly impeded if a different meaning can be given to the second phrase.

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According to the respondent, the first clause includes only final process or executions to enforce recoveries. It therefore does not include mesne process. The second, he says, includes mesne process or orders of arrest. It would follow that a debtor arrested on such process, but unable to procure bail for the limits, could not be discharged because confined within the walls, while one arrested in the same manner and already outside the walls, although within the limits, could be wholly liberated. That would seem to be an absurd conclusion and not to be adopted unless necessary to give meaning to the Act. This is avoided by construing the second clause with reference to the first, and the true meaning is that which we have above ascribed to it.

The general object of the Act in question (§ 5 of chap. 672, Laws of 1886, amending § 111 of the Code of Civil Procedure) is to limit the time of imprisonment under process issued against any person after the sum due from him had been adjudged, whether the imprisonment was within the walls of a jail, or within its liberties.

If confined within the walls the amount of the recovery or the sum to be paid by the imprisoned person determines whether the imprisonment shall end at the expiration of three months or at the expiration of six months. But if he had been admitted to the jail liberties there is no such qualification, and the six months' period applies to all cases within the Act. The defendant is not an imprisoned debtor within the Act. No execution or other man

date has been issued against him to enforce the recovery of a sum of money. No recovery has been had against him, nor has he been ordered to pay any money. We think, therefore, his discharge was improperly allowed.

The order was appealable. It deprived plaintiffs of a remedy given by statute, which they might retain until the prisoner was discharged according to law.

The orders of the General Term and Special Term should, therefore, be reversed and the motion to discharge the defendant and cancel the bond given by him for the liberties of the jail denied, with costs in all courts.

All concur.

Matthew F. NORTON, Respt.,

v.

Bernard DREYFUSS, Appt.

2.

3.

4.

cles manufactured for him under an executory contract after an opportunity to examine them, precludes him from raising any question as to defects or imperfections which were visible and capable of discovery on inspection, unless there is a warranty of their quality which was intended to survive their acceptance and give the vendee further time for trial and examination.

When there is such a warranty the vendee may still retain the goods, and when action is brought for their price may recoup such damages as he can show he has suffered from their defective or inferior character or from a breach of contract in respect to the time of its performance; or he can return the goods and plead the rescission of the contract as a defense to an action for their price.

But these defenses cannot both be sustained in the same action, and where it is uncertain on the pleadings and evidence which defense defendant intends to adopt, it is a question for the jury to determine whether the defendant's refusal to give up the goods was an election to accept them or was to give him further time for examination, or whether it was the expression of a determination to keep them and rely upon the damages which he might be able to prove from the alleged breach of warranty and the nonperformance of the contract.

The question as to whether such a demand and refusal, under all the circumstances of the case, was the equivalent of an acceptance of the goods under the contract, was a question for the jury to determine and could not be decided as a question of law.

5. Where one party has the property of another in his possession and refuses to surrender it upon demand, a jury may infer a conversion; but such evidence raises a question of fact alone and cannot be determined as a question of law. (Decided June 7, 1887.)

APPEAL from a judgment of the General Term of the Superior Court of the City of New York, affirming a judgment of the Trial Term on a verdict directed for plaintiff in an action to recover the contract price for goods manufactured and delivered. Reversed. Reported below, 19 Jones & S. 491.

The facts and questions raised appear from the opinion.

Mr. John Frankenheimer, for appellant: By directing a verdict for the plaintiff, the court must be regarded as ruling that the plaintiff was entitled to a verdict, even upon the case as presented by the defendant's testimony, and in view of any inferences which a jury might legitimately draw from the defendant's testimony, or from the whole evidence in the

case.

Royce v. Watrous, 7 Daly, 87; Stone v. Flower, 47 N. Y. 566; Miner v. Mayor, 5 Jones & 893

1. The acceptance by a vendee of arti- S. 171.

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