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and 120 New York State Reporter to his own order, to be certified, and delivered it unindorsed. The holder brought suit. The court said:
"As against Brown, to whose order the check was payable, the bank had a good defense.
The plaintiff had notice of the fraud, which constituted a defense for the bank as against Brown.
Prior to the indorse ment of this check, therefore, plaintiff was subject to the defense existing in favor of the bank as against Brown, the payee."
Then the case proceeds:
“The bank did certify that it had the money, would retain it, and apply it in payment, provided the check should be indorsed by the payee."
Thus both of those cases reassert the doctrine of the Freund Case, that, when a check in the hands of a bona fide holder for value has been certified by a bank, at the holder's request, and is a valid obligation against the maker, and there are no equities between the maker and the bank, recovery can be had of the bank, even if the transfer is not evidenced by indorsement. As it appears from the evidence in this case that plaintiff is the bona fide holder for value of the check; that the holder procured its certification; that there are no equities as betwein the maker and the original payee; that the bank has the funds of the maker locked up in its possession, as called for by its certification; that no demand has been made or suit brought by said maker for said funds; that there are no equities between it and the maker; and that, the title to the check having been established in the plaintiff, it would have a perfect defense against any suit brought by said maker against it-I conclude that the case falls within the Freund Case in all particulars, that that case still presents the law of this state, and that the motion must be denied and judgment entered on the verdict. In view of all the circumstances of this case, 5 per cent. allowance, 30 days' stay, 30 days to make a case.
(42 Visc. Rep. 350.)
REISS v. PLICQUE. (Supreme Court, Special Term, New York County. January, 1904.) 1. SUPREME COURT-JURISDICTION-CONTROL OF MINOR.
A proceeding begun on petition for an order to show cause, procured at the instance of an attorney in fact of the father of a colored jockey, who is under age, in order to get possession of the boy for purposes of gain, without regard to his interests, where all the parties are nonresidents, and where the laws of the state of their residence as to contracts of apprenticeship are involved and are disputed, and conflicting contract rights may arise determinable only by the laws of such foreign state, will not be
entertained by the Supreme Court. Application by Ernest V. Reiss for an order on Alphonse J. Plicque to deliver Wallace Hicks, a minor, to the custody of the petitioner, or show cause. Writ denied.
William T. Houston, for petitioner.
CLARKE, J. The order to show cause herein provides "that the defendant, Alphonse J. Plicque, forthwith deliver Wallace Hicks, a minor, to the care, custody, and control of the petitioner, or show cause to the contrary." Said order was not made in an action, but was based upon a petition, with accompanying affidavits and exhibits. It was not a proceeding upon a writ of habeas corpus. It seems to be based upon some general theory of the jurisdiction of this court over minors. It is an attempt by a summary proceeding, involving the consideration of the laws of Louisiana, to obtain an adjudication that articles of apprenticeship there made are null and void, to establish the validity of a subsequent contract of somewhat similar nature, and to transfer the custody of a minor 19 years of age, against his will, from one master to the attorney or representative of another, upon the following state of facts: On the 22d day of March, 1902, in the parish of Lafourche, state of Louisiana, Altimore Hicks, a colored man, unable to write his own name, executed, in the presence of witnesses and before a notary, a document in which he declared that he was the father of Wallace Hicks, then 17 years of age; that in consideration of the sum of $40 to be paid to him every three months, in advance, he bound and obligated himself to let to C. Wright and A. J. Plicque the services of said Wallace Hicks for the period of three years. The paper continued :
"It is understood that the said Wright and Plicque are to feed, clothe, give medical attention when necessary, and to send Wallace Hicks to school whenever possible to do so. Appears, Altimore Hicks further says, that he gives the said Wright and Plicque during these three years all the authority he has over the said Wallace Hicks, his boy. It is well understood that the services of Wallace Hicks are wanted as an apprentice jockey, and for no other causes."
It appears that the amount reserved has been duly paid down to the present time, and that Wallace Hicks has been well cared for, has been taught to ride, has become a successful jockey, that he was, at the time of the institution of these proceedings, temporarily in this state with Mr. Plicque, having come East to ride at various race meetings under his management, intending to return to Louisiana, where all the parties resided, in December, and that the boy was happy and contented, had learned to write, and had saved upward of $1,000 from his employments, and, so far as he was concerned, was not restrained of his liberty, and desired no change in his relations. On the 3d of July, 1903, Altimore Hicks and one Hamilton M. Wright, residents of Louisiana, at the city of New Orleans, in the presence of witnesses and before a notary, executed a document by which they first canceled, annulled, and set aside, so far as they are mutually concerned, the contract entered into by the said Altimore Hicks on one side and the said Hamilton M. Wright and Thonias Hatfield on the other side, executed on the 11th day of April, 1903, “for the services of the jockey, Wallace Hicks,” establishing, therefore, that the father had sought to make another and previous contract in relation to his son. Secondly. Hicks canceled, revoked, and set aside a power of attorney executed on April 11, 1903, to said Wright and Hatfield. Third. "The said Hicks, having this day appointed and constituted the said Hamilton M. Wright his sole agent and attorney in fact to act for him,
does hereby further contract, agree and bind himself not to recall said agency, nor to interfere with the said Hamilton M. Wright while acting under said power of attorney until the objects and purposes therein contemplated
aud 120 New York State Reporter have been fully and finally accomplished.” Fourth. Hicks contracted to cancel, annul, and set aside "[thereby specially affirming the power already delegated for that purpose to said Hamilton M. Wright) the contract executed March 22, 1902, whereby the said Altimore Hicks apprenticed his son, Wallace Hicks, as jockey to C. F. Wright and A. J. Plicque for three years from the date of said act." Fifth. Wright bound himself to represent said Altimore Hicks, and in his name, and for his use and benefit, to institute all suits or actions necessary for the cancellation of, first, the contract of March 22, 1902, between Hicks and Wright and Plicque; second, the contract between Hicks and himself and Hatfield. He further bound himself, first, to effect a compromise of the rights of Altimore Hicks in any matter whatsoever; second, to secure possession, authority, and control over the person of Wallace Hicks, whether by habeas corpus or otherwise; and third, to make any and all contracts which it may be necessary or advisable to make, or which he may see fit to make, for hiring out the services of Wallace as jockey. Altimore Hicks further agreed to divide equally with Wright "all the moneys, sums, credits or property which he may be entitled to receive under and by virtue of any compromise which the said Wright may effect with A. J. Plicque, or any one else, secured under the contract of apprenticeship executed March 22, 1902.
And also to divide equally with said Wright the rights, claims, credits, prices, sums or moneys received, or to be received, from any contract which the said Wright may make in the name of said Altimore Hicks with any one for the services of the said Wallace Hicks as jockey.” There was also executed on the same day a power of attorney in the most sweeping terms, in furtherance of said contract, to Wright, with power of substitution and revocation. Said Wright, on September 9, 1903, executed a power of attorney to the petitioner herein "to do and perform all and singular the matters and things delegated to him, Wright," by the above-mentioned contract and power; and it is upon said papers that this proceeding is based. Notwithstanding the irrevocable provisions of said papers, Mr. Plicque produces a paper executed by said Altimore Hicks, October 17, 1903:
"By these presents, I appoint Emile Kahn, of Raceland, La., as my agent and attorney in fact, and I authorize him to transact all my affairs as well as to make and sign all contracts for my minor son, Wallace Hicks, and I here with ratify and indorse all contracts and agreements that the said Emile Kahn may make or enter into regarding my son Wallace; and I ignore and refute all contracts and agreements that are not made and signed by the said Emile Kahn."
Surely an easy way to dispose of contracts to "ignore and refute them,” but perhaps indicative of the mental caliber and moral stability of this father, with his numerous conflicting agreements disposing of the services of his son.
Petitioner claims that, under the law of Louisiana, contracts of apprenticeship expire for males when they attain the age of 18. Thus, claiming that the contract with Plicque is at an end, he wishes this court to establish the validity of the subsequent contract with Wright. But he claims possession of the boy under the contract. I know of no contract which confers the right of possession of a boy except a contract of apprenticeship, and if petitioner's claim is correct, that such contracts by the law of Louisiana are invalid after the boy reaches the age of 18, then this subsequent contract is also invalid. If not a contract of apprenticeship, it must be some form of slavery or peonage forbidden by the Constitution of the United States. Affidavits are submitted to show that petitioner's contention is ill-founded, and that under the laws of Louisiana the period of apprenticeship may extend to the age of 21, and therefore the contract with Plicque is valid. But irrespective of that, I fail to see how petitioner can procure any relief in this summary proceeding. This is not a habeas corpus proceeding. Such has already been instituted and disinissed. Whatever rights may exist under the several contracts can only be tried out in an action, and that should be brought in the state where the contracts were made, and where all the parties reside. If the proceeding is to be reviewed as one invoking the power of the court to exercise care, custody, and control of minors, irrespective of the contractual relations set forth, I am quite satisfied that no good reason is shown to change the relations now existing. It seems a bald attempt to get possession of a valuable asset in the shape of a good jockey for purposes of gain, without any consideration whatever as to the wishes or interests of the boy himself.
Motion denied; $10 costs.
(42 Misc. Rep. 346.)
BROWNING V. STILLWELL, (Supreme Court, Trial Term, New York County. January, 1904.) 1. RES JUDICATA-BREACH OF COVENANT.
After conveyance of premises by full warranty deed, the grantee brought summary proceedings against an occupant of a part thereof, who pleaded a parol lease from the grantor for a year. The grantee notified the grantor to defend against such claim. The occupant was awarded possession. Held, in a subsequent action against the grantor on his covenant against incumbrances, the judgment roll and entry of judgment thereon estopped
the grantor from denying the facts established thereby. 2. COVENANT_ACTION FOR BREACH-DAMAGES.
Where land is sold with full covenants of warranty, and a portion of the premises is leased by the grantor for one year, the grantee's damages are the fair rental value of the land for the year, with attorney's fees incurred
in litigation with the tenant. Action by William C. Browning against Benjamin W. Stillwell. Verdict for plaintiff. Motion for a new trial. Denied on conditions.
Clarence E. Thornall, for plaintiff.
CLARKE, J. The action is for breach of covenants in a full covenant and warranty deed, by which defendant conveyed the premises to plaintiff. The incumbrance complained of is an outstanding parol lease of part of the premises for one year. Verdict was directed for the sum plaintiff was obliged to pay the tenant to secure possession, plus legal expenses incurred. The defendant moves for a new trial on two grounds: (1) That it was error to admit the judgment roll and and 120 New York State Reporter entry of judgment in the dispossession proceedings awarding possession to the tenant as conclusive evidence of a breach of defendant's covenant against incumbrances; (2) that there is no proper evidence of damages.
11. See Covenants, vol. 14, Cent. Dig. $8 222, 223.
It has been repeatedly held that the grantor is estopped from subsequently questioning facts adjudicated in an action brought against his grantee when the grantee had given him notice to defend such action. Miner v. Clark, 15 Wend. 425; Carleton v. Lombard, Ayres & Co., 149 N. Y. 137, 43 N. E. 422; Oceanic Steam Nav. Co. v. Campania Trans. Esp., 144 N. Y. 663, 39 N. E. 360; Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550; Robbins v. Chicago City, 71 U. S. 657, 18 L. Ed. 427. In the same way the grantor is estopped from denying facts determined in an action brought by the grantee against a third party who interposes a defense adverse to the rights conveyed, provided the warrantor be given opportunity to prosecute the action. Andrews v. Denison, 16 N. H. 469, 43 Am. Dec. 565; Brown v. Taylor, 13 Vt. 631, 37 Am. Dec. 618; Fake v. Smith, 7 Abb. Prac. (N. S.) 106, 2 Abb. Dec. 76; Bell v. Dagg, 2 Thomp. & C. 623; Id., 60 N. Y. 528; Whitney v. National Bank of Potsdam, 45 N. Y. 303; Andrews v. Gillespie, 47 N. Y. 487, 492; Albany City Sav. Inst. v. Burdick, 87 N. Y. 40, 45. In the first class of cases the notice to the warrantor may be informal, and need not be in writing, provided it appear that the grantor knew of the adverse claim, and had opportunity to defend. Prescott v. Le Conte, 83 App. Div. 482, 487, 82 N. Y. Supp.
. 411; Barney v. Dewey, 13 Johns. 224, 7 Am. Dec. 372; and cases cited above. Following these cases, I am of opinion that notice by a grantee plaintiff to his grantor of an adverse claim of a third party set up by way of answer is sufficient, provided the warrantor be fully and fairly informed of the claim, and given an opportunity to prosecute the action in so far as it is necessary in defense of his title. The defendant herein was notified of the tenant's claim, and served with written notice that plaintiff "would hold him under his warranty, and that he would have to defend any claim of Hart as to being a yearly tenant." Thereafter plaintiff sent grantor a letter stating he “has had to commence dispossess proceedings against him (Hart]," names time and place of trial, and continues: "Under your covenant of warranty I hereby notify you to come in and defend this claim of Henry Hart that he is a tenant for a year from May 1, 1900, of the premises conveyed by you as aforesaid.” The only way to defend was to aid in the prosecution. The notice was therefore substantially that the warrantor come in and aid in the prosecution of that proceeding by defending against the claim set up. Such notice was sufficient. The warrantor is responsible over to the grantee. Being an intended party, he is bound by the judgment in so far as the issues litigated are identical with the issues involved in the subsequent action. The court will not again determine the same issue already adjudicated in action in which defendant had an opportunity to protect his interests.
But a new trial must be directed unless plaintiff stipulate to reduce the verdict, because the evidence submitted will not support a verdict for the damages directed. The rule of damages is based upon the principle of indemnity. Where the grantee has received title, but is