and, so far as appears, solvent, attachments were issued against its property, and it was held that they were void. The broad doctrine was laid down by Chief Justice Waite, with whom all the justices concurred, that an attachment could not issue out of a state court against the property of a national banking association, whether solvent or insolvent. The court said: "The fact that the amendment of 1873 in relation to attachments and injunctions in state courts was made a part of section 5242 shows the opinion of the revisors and of congress that it was germane to the other provision incorporated in that section, and was intended as an aid to the enforcement of the principle of equality among the creditors of an insolvent bank. But however that may be, it is clear to our minds that, as it stood originally as part of section 57 after 1873, and as it stands now in the Revised Statutes, it operates as a prohibition upon all attachments against national banks under the authority of the state courts. That was evidently its purpose when first enacted, for it was part of a section which, while providing for suits in the courts of the United States or of the state, as the plaintiff might elect, declared in express terms that, if the suit was begun in a state court, no attachment should issue until after judgment. The form of its re-enactment in the Revised Statutes does not change its meaning in this particular. It stands now, as it did originally, as the paramount law of the land that attachments shall not issue from state courts against national banks, and writes into all state attachment laws an exception in favor of national banks. Since the act of 1873 all the attachment laws of the state must be read as if they contained a provision in express terms that they were not to apply to suits against a national bank." Page 726, 124 U. S., page 720, 8 Sup. Ct., and page 567, 31 L. Ed. It was also held that the act of July 12, 1882, did not repeal the provision by which the remedy of attachment is taken away altogether, so that it "cannot be used under any circumstances." In 1889 the subject was considered by the court of appeals for the third time, in an action in which an attachment had been issued against a national bank on the 18th of June, 1887, and a receiver of the bank was appointed nine days later. The special term denied the motion to vacate, but the general term reversed and vacated the attachment. Upon appeal this court affirmed "on the authority of Bank v. Mixter," supra. Bank of Montreal v. Fidelity Nat. Bank (Sup.) 1 N. Y. Supp. 852; Id., 112 N. Y. 667, 20 N. E. 414. Assuming that the banking association in that case was insolvent when the attachment was granted, still it is to be observed that this court did not cite its own Raynor Case, which involved an insolvent bank, as the authority for its judgment, but cited the Mixter Case, in which it was held that an attachment against a national bank, whether

solvent or insolvent, is void. We think, and such is the recollection of Judge GRAY, the only member of the present court who participated in that decision, that it was the intention of this court to yield its previous views to those expressed by the supreme court of the United States upon the subject. All the courts of last resort in the different states that have passed upon the question have held that the prohibition of the federal statute applies to all national banks, regardless of their pecuniary condition. Freeman Mfg. Co. v. National Bank of the Republic, 160 Mass. 398, 35 N. E. 865; Bank v. Berry, 91 Ga. 264, 18 S. E. 137; Bank v. La Due, 39 Minn. 415, 40 N. W. 367; Dennis v. Bank, 127 Cal. 453, 59 Pac. 777, 78 Am. St. Rep. 79; Safford v. Bank, 61 Vt. 373, 17 Atl. 748; Rosenhein Real Estate Co. v. Southern National Bank (Tenn.) 46 S. W. 1026. The same conclusion was reached by the circuit court of the United States for the Southern district of New York. Garner v. Bank (C. C.) 66 Fed. 369.

The power to create national banks carries with it the power to protect them by conferring special rights, privileges, and immunities. In 1873 congress evidently thought that the efficiency of these institutions might be impaired if attachments were issued out of the state courts against their property, and it therefore prohibited such writs, among others, altogether. The only question before us is whether that is still the effect of the acts of congress as they now stand. While the use of the words, "such association" in section 5242 [U. S. Comp. St. 1901, p. 3517] would justify the construction contended for by the appellant, that the prohibition is confined to associations which have committed an act of insolvency, the court of last resort for the construction of federal statutes has decided the other way, and we are bound by its conclusion. Bank v. Mixter, supra. We do not think the opinion in that case is obiter so far as it applies to a solvent bank, for, as we understand the statement of facts, the Pacific National Bank was solvent when the attachments were issued against it. While it became embarrassed, six or seven months later, it does not appear that it was insolvent or had committed an act of insolvency, or had done anything in contemplation of insolvency, when the attachments were issued or levied. The chief justice obviously did not write an elaborate opinion to show that an attachment could not issue against an insolvent bank, for that was not open to question. It has always been conceded that the statute at least prohibits an attachment against an insolvent bank, but the question considered and decided was whether an attachment could be issued against a solvent bank. That was a live question, still open in that court, and there is no suggestion, either in the statement of facts or the opinion, indicating that the court regarded the question before it as

different from the question now before us. The first question certified to us should therefore be answered in the affirmative.

The second question involves the effect of the act of July 12, 1882, but this requires no discussion, as it has already been held by the supreme court of the United States, as well as by ourselves, that said act did not repeal the earlier acts of congress prohibiting attachments against national banks. Bank v. Mixter, supra; Raynor v. Bank, supra.

The argument is made that if the defendant had been a foreign state bank, with funds here, our courts could have acquired jurisdiction in rem through the process of attachment, and that hence the same jurisdiction exists over the property of a foreign national bank situated in this state. This construction of the later act, however, would violate the spirit of all the acts relating to the subject, when read together. We agree with the appellate division that "the act of 1882 was intended to prescribe the forum for litigations by and against national banks, and does not relate to provisional remedies to be had in such actions. It was designed to prescribe the place where, and the courts in which, such actions may be prosecuted, but it was not intended to regulate the procedure in such actions, when brought." Nor, we might add, was it intended to so regulate the method of commencing an action as to enable a state court to acquire jurisdiction over the property of a national bank without acquiring jurisdiction of the bank itself.

We think that the order appealed from should be affirmed, with costs; that the first question certified should be answered in the affirmative, and the second in the negative.

PARKER, C. J., and GRAY, O'BRIEN, HAIGHT, MARTIN, and CULLEN, JJ., con

cur.

Order affirmed.

(173 N. Y. 303)

MALONEY V. IROQUOIS BREWING CO. et al.

(Court of Appeals of New York. Jan. 20, 1903.)

SALE-CONSTRUCTION OF CONTRACT-PERFORMANCE.

1. Under a contract providing for the sale of a saloon, a brewing company agreed to pay the price if all the beer sold in conducting the saloon should be of its manufacture. The contract further provided that, in addition to the price of the beer sold, the vendee should pay to the brewing company $2 per barrel until the purchase price of the saloon was paid. The brewing company agreed to receive such money, and, when $1.200 had been received, to pay over to the vendor the entire price of the saloon. Held, that the brewing company was required to collect $2 per barrel on all beer delivered, and apply the same for the benefit of the vendor.

2. After the execution of the agreement the saloon was carried on by the vendee's wife un

der a lease in her name, but the business was conducted by the vendee either for himself or his wife. Held not to release the brewing company from its liability to the vendor.

Parker, C. J., dissenting.

Appeal from supreme court, appellate division, Fourth department.

Action by Thomas F. Maloney against the and Iroquois Brewing Company others. From a judgment of the appellate division (71 N. Y. Supp. 1098) affirming a judgment for defendants entered on the report of a referee, plaintiff appeals. Reversed.

Simon Fleischman, Harry L. Taylor, and Eugene L. Falk, for appellant. James O. Moore and Robert F. Schilling, for respondents.

O'BRIEN, J. The relief which the plaintiff sought in this action was an accounting between himself and the defendants under a tripartite agreement between them, the substance of which will be hereafter referred to. The case was tried before a referee, who reported in favor of the defendants, and the learned court below has affirmed the judgment. There is little, if any, dispute about the facts, and hence the question is whether the legal conclusions of the referee upon the facts found were warranted. The learned referee found that on the 17th day of July, 1896, the plaintiff, as party of the first part, one Mallon, as party of the second part, and the Iroquois Brewing Company, as party of the third part, entered into a tripartite agreement concerning the sale of a saloon. The instrument commences with some recitals that are important in ascertaining the intention of the parties and the scope and meaning of the instrument. It is recited that whereas, the plaintiff was then conducting the hotel business, and was desirous of selling the same, with the good will, furniture, and fixtures appertaining thereto, and that as the defendant Mallon was desirous of purchasing the business and property and continuing the same, and they had agreed upon the purchase price to be paid for the same at $3,000; and whereas, the party of the third part, the brewing company, undertakes to pay for Mallon, the party of the second part, to the plaintiff, the party of the first part, the sum of $3,000, upon the terms, conditions, and in the manner and form thereinafter set forth,-the parties mutually stipulated substantially as follows: (1) The plaintiff was to execute and deliver to Mallon a bill of sale of the good will, furniture, and fixtures belonging to or appertaining to the business, and Mallon agreed to execute and deliver to the brewing company a chattel mortgage on the same as security for the payment by him to the brewing company of the sum of $3,000, to be paid as thereinafter provided, which mortgage should be a lien upon the property, furniture and fixtures referred to. (2) The method of payment was provided for in the

following terms: Mallon agreed that all the beer sold in the conduct of the business should be of the manufacture of the defendant brewing company, and that, in addition to the regular price of said beer per barrel, Mallon should pay to the brewing company the sum of $2 per barrel, until the whole of the $3,000 should be paid. (3) That, when Mallon should have paid to the brewing company the sum of $1,200 in that manner, he should thereafter pay to the brewing company upon the balance remaining unpaid semiannual interest at the rate of 5 per cent. (4) The brewing company agreed to receive said money, and, when the sum of $1,200 should have been received, it would pay over to the plaintiff the said sum of $3,000. The purpose which was sought to be accomplished by this peculiar agreement is reasonably plain. When the plaintiff sold the business to Mallon, he had been all along buying his supply of beer from the brewing company, and all the parties intended to continue the supply of beer to the hotel or saloon from the same source. To that end the plaintiff and Mallon agreed upon a sale for $3,000, and the brewing company undertook to pay that sum as expressed in the agreement, and the substance of that was that the latter should be entitled to charge $2 a barrel extra for the beer, and apply the same upon the purchase price, and, when $1,200 should have been received in that way, to pay the balance absolutely. The defendant Mallon was to pay to the brewing company interest on the balance remaining unpaid, for the reason, evidently, that it had assumed and agreed to pay Mallon's debt, in consideration of the dealings to take place between them in regard to the purchase and sale of the beer. The bill of sale and chattel mortgage provided for were executed and delivered in accordance with that agreement. This vested the title of the hotel business, furniture, and fixtures in Mallon,, subject to the mortgage of the brewing company for $3,000, and the plaintiff was to rely upon the terms of the agreement for the payment of the purchase price. Mallon went into possession of the saloon, carried on the business, and procured his supplies from the brewing company as provided in the agreement.

The referee found that the defendant Mallon did not pay to the brewing company the sum of $2 a barrel upon all the beer purchased by him from the company in addition to the regular price for the same, but did pay to it the sum of $559; that under the terms of the agreement, and down to and including the last day of April, 1898, the brewing com. pany sold to Mallon 414% barrels of beer; that since the 1st day of April, 1898, until the time of the trial the business referred to in the agreement had been continued on the same terms by Mallon's wife, under a lease of the hotel to her made about that time; that the business had been conducted for the wife by her husband, and had been carried

on continuously in and upon the premises since the making of the agreement to the time of trial by Mallon in his own behalf or in behalf of his wife, and that from the 1st day of May, 1898, down to the time of the trial the brewing company sold to the wife 409 barrels of beer. It is obvious from these findings that the brewing company had sold and delivered to this saloon a sufficient quantity of beer to enable the company, if it collected the $2 extra per barrel, to reduce the debt below $1,200. The contention of the defendants is, first, that the brewing company was only to receive the $2 per barrel from Mallon when he paid it, and was not bound to collect it, and, as they did not receive the money, it is in no manner in default under the agreement. The second proposition is that, since Mallon nominally turned over the saloon to his wife, and thereafter conducted the business in her name, all the time purchasing the beer from the brewing company, the latter could not collect the $2 per barrel after this nominal change or transfer. It will be observed that the learned referee found that the business has been continuously conducted from the beginning by Mallon, either in his own behalf or in behalf of his wife. There is no finding that there ever was any real change of ownership of the property, or of the management in the conduct of the business.

We think that the fair construction of the agreement is that the brewing company was bound to collect the $2 per barrel upon all beer which it delivered at that saloon, and apply the same for the benefit of the plaintiff. That was the method which the parties agreed upon for the payment of the purchase price of the saloon to the extent of $1,200, and the brewing company could not continue to deliver beer at the saloon, and leave it to Mallon to pay the $2 or not, as he might elect. Under the terms of the agreement the brewing company was given the same right to collect the $2 on each barrel as to collect any part of the purchase price of the beer. It virtually agreed to charge to Mallon, and he agreed to pay, for the beer $2 over and above the market price, and to apply what was received on such extra charge for the benefit of the plaintiff. In the construction of written contracts it is the duty of the court, as near as may be, to place itself in the situation of the parties, and from a consideration of the surrounding circumstances, the occasion, and apparent object of the parties, to determine the meaning and intent of the language employed. Indeed, the great object, and practically the only foundation, of rules for the construction of contracts, is to arrive at the intention of the parties. This is a most conspicuous and far-reaching rule, and involves the nature of the instrument, the condition of the parties, and the objects which they have in view; and, when the intent is thus ascertained, it is to be effectuated, unless forbidden by law. Contracts are

not to be interpreted by giving a strict and rigid meaning to general words or expressions, without regard to the surrounding circumstances, or the apparent purpose which the parties sought to accomplish. Gillet v. Bank, 160 N. Y. 549, 55 N. E. 292. To hold that all the brewing company was bound to do under this agreement was to receive such moneys as Mallon voluntarily elected to pay would defeat the general purpose of the agreement. The company had bound Mallon to buy all his beer from it, and to pay the market price for the same and $2 extra per barrel, to apply on the $3,000 purchase price of the saloon. It could not go on delivering the beer and collecting the market price therefor, leaving the plaintiff to get the $2 as best he could. Hence it follows that, since the brewing company was bound to collect this extra charge, and could have collected it, it was liable to account for the same to the plaintiff. Any other construction of the agreement would be most unjust to the plaintiff. It would deprive him of all security for the price of his property, while it would secure to the defendants every benefit which they sought to obtain by the transaction. The brewing company secured a market for its beer, and practically the ownership of the saloon. The plaintiff could not collect the extra $2 from Mallon for the beer, since the latter did not agree to pay it to him, but did agree to pay it to the brewing company; and, if the latter was not bound to collect it and account for it, and Mallon might pay it or not, as suited his convenience, it is difficult to see what the plaintiff got for the transfer of his property. The agreement of the brewing company to receive the money meant something more than that it was to become a mere custodian. It meant that, when the company sold beer to Mallon, it was to charge and collect from him $2 per barrel over and above the regular market price, and apply the extra $2 on the plaintiff's debt. It had the power to do all that, and the plaintiff had not.

The other proposition is that, since there has been some nominal change in the conduct of the saloon, the brewing company is under no further obligations to the plaintiff. It is still in the enjoyment of the right which it had secured by the contract of selling to that saloon all the beer used in the conduct of its business. It has not secured that right in any other way than under this contract. Mallon is still in charge, ordering the beer and paying for it. There is no finding in the record of any real or substantial change in the ownership of the property or in the conduct of the business. The finding is that it is conducted by Mallon, either for himself or for his wife. We think that the obligations of the parties, as expressed in the writing, have not been affected by this nominal change. The brewing company had the right to charge and collect this extra $2 for every barrel of beer that it delivered to the saloon,

so long as Mallon was in charge and dealing with it. The defendants could not, by such a colorable arrangement between themselves, evade their obligations under the contract, or deprive the plaintiff of its benefits. The brewing company is still selling its beer to the saloon in charge of Mallon. It still holds the mortgage, and even advanced the money for the liquor tax certificate. It has the same right now that it ever had to exact the extra $2 for every barrel of beer that it delivered to the saloon, and this right it acquired by the contract in question, which conferred upon it almost absolute power over the property, the business, and its management. The plaintiff cannot be deprived of the price of his property by mere forms that have effected no substantial change in the situation. Hence it follows that in stating the account the referee should have charged to the company the extra $2 for every barrel of beer that it delivered to the saloon.

There are some other questions in the case that have been elaborately argued by counsel, but we do not consider it necessary to consider them, since they may not arise upon another trial. The two propositions we have attempted to deal with are fundamental, and, when applied to the case, will eliminate nearly all of the other questions, and now require a reversal of the judgment.

The judgment should be reversed and a new trial granted, with costs to abide the event.

PARKER, C. J. (dissenting). If the majority opinion be right in saying that, "We think that the fair construction of the agree ment is that the brewing company was bound to collect the $2 per barrel upon all beer which it delivered at that saloon, and apply the same for the benefit of the plaintiff," then there is no gainsaying the conclusion reached therein, for more than 600 barrels of beer were delivered at the saloon. But as the agreement does not say so in ex press terms or otherwise, but instead expressly limits its operation to sales of beer to John H. Mallon. I am unable to see how the court can, by so-called "construction," read into the agreement a provision that the brewing company bound itself to collect $2 per barrel upon all beer which might be delivered at that saloon, no matter who should be the occupant and proprietor of it. It was bound to collect $2 for plaintiff's account for every barrel of beer sold and delivered to Mallon, and the findings are to the effect that the entire amount of beer delivered to him down to and including the last day of April, 1898, when he transferred the business and property to his wife, was 414% barrels. The findings are that thereafter she continued to run the business, for the eleventh finding (by which we are bound) is: "That since the 1st day of May, 1898, until the time of this trial, the said hotel business referred to in the tripartite agreement has been continued

on the same premises by Cleopatra Mallon, the wife of the said John H. Mallon, under a lease of said premises in ber own name, made to her about said last-mentioned date, said business having been conducted for said Cleopatra Mallon by her said husband, John H. Mallon; and said business has been carried on continuously in and upon said premises since the making of said tripartite agreement to the present time, either by said John H. Mallon in his own behalf [which necessarily includes the time from the signing of the agreement down to the 1st of May, 1898] or in behalf of his wife [which covers the rest of the period]." Now, the agreement made the payment to plaintiff by the brewing company of the full purchase price dependent upon a sale to Mallon of 600 barrels of beer. From the findings, as we have seen, it appears that he never sold Mallon any such amount. Therefore the plaintiff did not become entitled either to $1,200 or the residue of the purchase price. But it is said this presents a very hard case for the plaintiff, and good faith required the brewing company to take action to protect the plaintiff. But that is precisely what the brewing company did, for when Mallon conveyed this property to his wife, and she started to do business in her own name, the managers of the brewing company, realizing that the company would be unable to collect anything from her, and that Mallon had made it impossible to carry out the contract, at once offered to transfer to plaintiff all the rights which the company had in the premises, including the mortgage which had been given to it by Mallon. In the absence of evidence indicating misconduct on the part of the defendant brewing company, or collusion between it and Mallon, this tender, it is quite apparent, was all that equity and good conscience required of it; while legally, as is apparent from the facts stated, the plaintiff never became entitled to receive from it but $839.68, being $2 a barrel for the beer sold to Mallon.

The judgment should be affirmed, with costs.

MARTIN, VANN, CULLEN, and WERNER, JJ., concur with O'BRIEN, J. PARKER. C. J., reads dissenting opinion. GRAY, J., absent.

Judgment reversed, etc.

(173 N. Y. 327)

was struck by a car; that he saw it approach, and leaned back to be out of the way; and that. there was plenty of room in the trench for him to remain at a safe distance from the car as it passed, but that he raised up so as to bring his face near the car, and was struck by the step. Held, that he was guilty of contributory negligence, preventing recovery.

Appeal from supreme court, appellate division, First department.

Action by Janet Riddle, administrator of David B. Alexander, against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company. From a judgment of the appellate division (76 N. Y. Supp. 1029) affirming a judgment for plaintiff, defendant appeals. Reversed.

Charles F. Brown, Addison C. Ormsbee and Henry A. Robinson, for appellant. Thomas Darlington, for respondent.

HAIGHT, J. This action was brought to recover damages for the alleged negligent killing of David Brown Alexander, commonly known as David Brown. The plaintiff was his maternal aunt, with whom he lived, and whom he supported. It does not appear that he left other relatives. The decedent was a carpenter in the employ of Naughton & Co., contractors, who were engaged in altering switches for the defendant company. At the time of the accident they were engaged in changing a switch on the Boulevard near Seventy-First street, in the city of New York, at which point the tracks curve around and run down Tenth avenue. An excavation had been made under the tracks 12 or 15 feet square, with a trench on the outer side of the curve several feet in length, and between 3 and 4 feet in depth, so as to make a change of the gas pipes underneath the tracks. The decedent and one Lloyd were engaged in bracing up the tracks of the railway company, and in watching the bracings as the cars passed over the tracks; the decedent acting as foreman, and Lloyd as his helper. The cars upon the defendant's road were operated by electricity taken from a power rail which had been removed for the space of about 25 feet on either side of the excavation, and the defendant's cars ran over the tracks at that point by means of the momentum obtained before reaching the point where the power rail had been removed. The cars passed about a minute and a half apart. At the time of the accident the decedent and Lloyd were in the trench, stooping down, when one of the defendant's cars approached from the north, passing over the excavation. As it approached, the decedent leaned back in

ST. N. AVE. RY. CO.

(Court of Appeals of New York. Jan. 27, 1903.) INJURY TO EMPLOYE-CONTRIBUTORY NEGLIGENCE.

1. The evidence showed that plaintiff's intestate was excavating under defendant's street railway, over which the cars were continually passing; that while working in the trench he

car, and it appears to have partially passed, at which time he straightened up, bringing his face nearer to the car. In rounding the curve the rear step of the car extended farther from the track, by some eight or ten inches, than when running on a straight track; and in passing it struck the decedent upon the bridge of the nose, knocking him