Appeal from Trial Term, New York County.

Action by Robert B. Brown against N. Leslie Carpenter, Joseph N. Carpenter, and Edward E. Clark, composing the copartnership of N. L. Carpenter & Co. Judgment for defendants, and plaintiff appeals. Reversed, and new trial granted.

Argued before CLARKE, P. J., and LAUGHLIN, SCOTT, PAGE, and SHEARN, JJ.

Edward A. Alexander, of New York City, for appellant.

House, Grossman & Vorhaus, of New York City (Louis J. Vorhaus, of New York City, of counsel, and Joseph Fischer, of New York City, on the brief), for respondents.

PAGE, J. The action was brought by the plaintiff who was a resident of Washington, D. C. On or about the 22d day of July, 1915, plaintiff called at the place of business of A. C. Plant & Co. and told Mr. Plant that he desired to buy six $1,000 Kennecott bonds at 118, and desired to know whether Carpenter & Co. in New York, the house that Plant represented, would carry him along if he paid $3,500 margin, and, when Mr. Plant said that they would, he delivered to Plant a check for $3,500. On or about the 20th day of August plaintiff called at the office of Carpenter & Co., the defendant, in the city of New York, and inquired whether the defendant had purchased the six Kennecott bonds for Plant. He was told that they could not reveal to him Mr. Plant's transactions with them, whereupon the plaintiff informed them that the six Kennecott bonds that Plant had bought on the 22d of July, 1915, were purchased for him, and that he desired to sell them and to take the profit, whereupon Mr. Clark, the member of the defendant's firm with whom he was talking, said that he would have to telegraph to Mr. Plant, which the defendant thereupon did, and received a reply: "Take any order from R. B. Brown. [Signed] A. C. Plant & Co." Mr. Clark showed this reply to the plaintiff, and stated that they were now ready to take any orders from him, and plaintiff put in several orders to sell the six bonds at price above the then market, but on or about the 28th day of August he gave orders to sell at 152, and the defendants sold the bonds, and he testified that they promised to settle with him on the following Tuesday at 10 o'clock, but when he called upon them, and asked for a settlement, Mr. Clark told them that Mr. Plant would settle it in Washington. Plaintiff told Clark that he had nothing to do with Plant; that the bonds were his, and demanded a settlement, but was unable to get anything from the defendants. Thereupon he returned to Washington and received from Plant a draft on the defendants for $5,250, and there was transferred to plaintiff's account with Plant $335.92. This draft was not paid.

[1] Upon the proof of these facts the judge below granted a motion to dismiss the complaint upon the ground that there was no contractual relation between the plaintiff and the defendants, and that his remedy, if any, was against Plant. In this the learned justice erred. Plant, in purchasing the bonds, was acting as the agent for an undisclosed principal, and when Brown disclosed himself to the defendants as the principal, and this was verified by Plant, the defendants became the agents

or brokers for the plaintiff, and when they executed his order for the sale of these bonds they were required to pay over to him the profits that had been realized upon the transaction. Of course, they would have had the right to counterclaim any advances that they may have made to Plant prior to the plaintiff disclosing himself as the principal, but the answer contains no counterclaim.

[2] It was brought out on the examination of one of the defendants before trial that the defendants' claim to have sold the bonds purchased by Plant the next day after they were bought and that they treated this sale of Brown as a short sale. If they had sold the bonds as claimed prior to the plaintiff disclosing himself as the principal, it was their duty to have so informed the plaintiff, when he disclosed himself as principal and directed the sale of the bonds, and they would undoubtedly have done so, if it had been a fact that the bonds had been sold.

[3] The claim that this transaction was a short sale is also inconsistent with the promise of the defendants to settle with plaintiff and the further statement that Plant would settle with him, for in a short sale there would have been no settlement to be made until after the transaction had been closed. In a short sale the broker makes a delivery of the bonds, charging the price thereof to the customer, and the account is carried until the customer orders the broker to repurchase the bonds, and an adjustment is made between the broker and customer on the difference between the selling and purchasing price.

[4] Therefore the claim of the defendants is contrary to the evidence that was adduced; but, if there was any question, it was a question of fact to have been submitted to the jury.

The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. Order filed. All concur.

SULLIVAN COUNTY v. DOWNIE et al

(Supreme Court, Trial and Special Term, Sullivan County. September 10, 1917.)

1. COSTS 39-DEFAULT JUDGMENT-APPLICATION TO ENTER-ACTION ON OFFICIAL BOND "ACTION FOR BREACH OF CONTRACT TO PAY UPON CONTINGENCY."

Action on official bond for misappropriation of a certain sum less than the amount of the bond is one for breach of a contract to pay on a contingency, judgment in which, under Code Civ. Proc. § 420, may in case of default be taken without application to the court, so that taxable costs are, under section 3251, subd. 1, $15.

Several actions on an official bond, which could have been joined, and which defendant says it does not intend to defend, will under Code Civ. Proc. § 817, be consolidated to prevent harassment of defendant.

Costs accrued up to date are not to be imposed as condition of consolidation of several actions on an official bond, all of which might have been joined, and which defendant does not intend to defend.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Action by the County of Sullivan against Cornelius E. Downie and another. Heard on application of plaintiff to the court for judgment on default, and on motion of defendant for consolidation of actions. Application held unnecessary; motion granted.

John D. Lyons, of Monticello, for plaintiff.

Robert M. McCormick, of New York City, for defendant, Globe Indemnity Co.

NICHOLS, J. The application of the plaintiff to the court for judgment in action No. 1, together with the motion of the defendant Globe Indemnity Company to consolidate 100 pending actions brought by this plaintiff against both defendants, are decided together. They arise. from the operation of one Cornelius E. Downie, who was the acting superintendent of the poor in and for the county of Sullivan, having been elected at the election held in the month of November, 1914, for a term beginning January 1, 1915, and ending December 31, 1917, or until his successor should be elected or appointed and should qualify. The defendant Downie, on or about January 1, 1915, duly qualified and entered upon the discharge of his duties as superintendent of the poor of the county of Sullivan. In the month of December, 1914, the defendant Globe Indemnity Company and the defendant Cornelius E. Downie, pursuant to the requirements of law and the direction of the board of supervisors of the county of Sullivan, gave a bond to the said county of Sullivan in the penal sum of $10,000, conditioned that the said defendant Downie should perform all the duties incumbent upon him by reason of his election as county superintendent of the poor of said county, and honestly account for the moneys coming into his hands as county superintendent of the poor, according to law.

The defendant Downie evolved a plan for fraudulently misappropriating the moneys of the said county of Sullivan during his term of office. Besides holding the official position of county superintendent of the poor, he was also the agent of the New York, Ontario & Western Railroad Company at Mamakating, in the county of Sullivan, and likewise the agent of the Adams Express Company at the same point. The defendant Downie, being indebted from time to time to the said corporations, and perhaps to other corporations, would draw an order directing the treasurer of the county of Sullivan to pay to the order of some fictitious person, to whom neither the county of Sullivan nor said Downie was indebted for any service, a certain sum of money out of the poor funds of said county purporting to be in payment for supplies for the county almshouse, and would sign the said order, adding the title of the office of superintendent of the poor of the county of Sullivan, and would then indorse the order on the back thereof with the name of the fictitious payee, and would forward said order, thus indorsed, to the said corporations, and obtain credit therefor upon his indebtedness, and the said corporations, after receiving said order, would give the defendant Downie credit for the same and then indorse said order and present the same to the treasurer of Sullivan county, who paid the same. These operations continued for a considerable space of time before the wrongdoing of the defendant Downie was dis

covered, and 100 of these fictitious orders were issued, amounting in the aggregate to something over $10,000.

The county of Sullivan brings a separate action against the defendant Globe Indemnity Company, in which action Downie was united as a party defendant, upon its surety bond as aforesaid, to recover the amount of each of the said ficticious orders, or 100 actions in all. The plaintiff says, in his application to the court for judgment in action No. 1, that this is not one of the causes of action set forth in section 420 of the Code of Civil Procedure, and that therefore the county clerk of the county of Sullivan, upon default, cannot enter judgment pursuant to the provisions of section 1212 of the Code of Civil Procedure, and that by reason of said fact, under the provision of subdivision 1 of section 3251 of the Code of Civil Procedure, he is entitled to $25 costs, and in addition, if the defendant does not consent to the entry of judgment and compels the plaintiff to produce his witnesses and prove his case, that the plaintiff is entitled to a trial fee of $30.

The plaintiff's complaints were verified. The defendant Downie does not defend the actions and as the court understands it from the argument of counsel is now confined in the state prison at Dannemora, N. Y., as the result of a trial upon indictment for the aforesaid larcenies of the funds of the county of Sullivan. The defendant Globe Indemnity Company does not dispute its liability to pay the sum of $10,000, being the penalty of the bond, but says that the cause of action set forth in complaint No. 1, which was the cause of action where the plaintiff applied for judgment to the court, and in which cause of action the amount of Downie's defalcation was $202.40, is a cause of action specified under section 420 of the Code of Civil Procedure, and that the clerk is authorized to enter judgment upon the verified complaint where no answer is interposed, as was this case, without application to the court, and that the amount of the taxable costs is $15 and disbursements. The defendant Globe Indemnity Company has made a motion to consolidate the other 99 actions with action No. 1, stating that it does not desire to defend any of the said actions, and that the only contest that it makes is as to the amount of costs that it is liable to pay.

[1] The fact that the breach of the contract was the tortious and criminal acts of the defendant Downie does not change the nature of the liability of the defendant Globe Indemnity Company. Its liability arose from the execution of the indemnity bond. In the case of City Trust, Safe Deposit & Surety Co. of Philadelphia v. American Brewing Co., reported in 182 N. Y. at page 285, 74 N. E. 948, it appears that, in a former action brought against the plaintiff, the City Trust, Safe Deposit & Surety Company of Philadelphia, to recover upon a surety bond given by the said City Trust, Safe Deposit & Surety Company of Philadelphia and by one Kurtz to enable the said Kurtz to procure a certificate permitting Kurtz to engage in the business of trafficking in liquors, Kurtz maintained gambling devices upon the premises in violation of the statute, and an action was brought to recover the penalty of the bond. Recovery was had, and afterwards the defendant in that action, the City Trust, Safe Deposit & Surety Com

pany of Philadelphia, upon discovery that Kurtz was an employé of defendant American Brewing Company, brought an action against the American Brewing Company to recover the amount that it had been compelled to pay by reason of the action brought against it on the surety bond, and the court, commencing at page 292 of 182 N. Y. (74 N. E. 950), in the opinion says:

"We are of the opinion that the cause of action set forth in the complaint is a breach of contract. * * It is true that Parker, C. J., in delivering the opinion of this court, in which the order of the Appellate Division granting a new trial was affirmed (174 N. Y. 486 [67 N. E. 62]), called certain acts torts and the violators wrongdoers. But in these expressions he had reference to the acts complained of, of maintaining a gambling device upon the premises in violation of the statute, which was not only a tort, but an offense punishable under our penal statute. * * The cause of action alleged in the complaint being upon contract, we think the items of damages claimed therein were liquidated, and were assessable before the clerk or before the court below, under the provisions of section 194, to which we have called attention."

Section 420 of the Code of Civil Procedure, after setting forth the cases in which judgment may be taken without application to the court, says further:

"This section includes a case, where the breach of the contract, set forth in the complaint, is only partial; or where the complaint shows that the amount of the plaintiff's demand has been reduced by payment, counterclaim, or other credit."

The plaintiff having pleaded a cause of action upon the surety bond of the defendant Globe Indemnity Company, showing that the breach of the contract set forth in the complaint is only partial, under the authority of City Trust, Safe Deposit & Surety Co. of Philadelphia v. American Brewing Co., pleads a cause of action upon contract, and upon which the damages were liquidated and were assessable before the clerk. It therefore follows that the application to the courts for judgment is unnecessary, and that the amount of costs that the plaintiff is entitled to is the sum of $15 and disbursements.

[2] It is not necessary, in a decision of the motion for consolidation, to decide whether there are 100 causes of action or only 1 cause of action, and this court expressly does not decide that point. Assuming there are 100 causes of action, they all arise upon contract, and were between the same parties, and all had accrued prior to the bringing of the first action, and there is no reason apparent to this court why they should not all have been united in one action. All the causes of action are essentially the same, involve the same parties, arise out of the same transactions, are based upon the same contract, and to a large extent are to be proved by the same evidence. They could be all joined, and therefore consolidation will be enforced to prevent harassment of the defendant, particularly where it is shown that no defense is intended. Dunning v. Bank of Auburn, 19 Wend. 23. In that case the court says:

"The affidavit should state, either that no defense is intended, or that the defense will be substantially the same in both."

And this case is cited and approved in the case of Posner v. Rosenberg, 153 App. Div. at page 254, 137 N. Y. Supp. 1088.