by him for a special purpose, by virtue of the authority conferred upon him by a power of attorney. At the termination of the defendant's agency he sent to Duke what purported to be a detailed statement of his transactions in the business, which contained a large number of items, among which was one relating to the stock in question, wherein it was, in effect, stated that the 400 shares In suit were, on the 31st of March, 1893, delivered to Hubbard, Price & Co. as collateral for a loan for $15,000. The items of that statement of account were balanced by crediting to Duke $3,076.68, and the defendant's check for that amount was forwarded with the statement. After it was thus apparently balanced, there was added below, in a supplemental statement, the balances thus found. Duke was charged for the compensation and disbursements of the defendant the sum of $25,839.03, and credited with 800 shares of stock retained by the defendant as the equivalent of his compensation and disbursements, and the account was again balanced. Upon receiving that statement, Duke at once objected to the supplemental portion relating to the defendant's compensation and the retention of 800 shares of stock, and positively declined to allow him any such amount. At that time it was only to this particular portion of the statement that any objection was raised. The difference between the parties as to the defendant's compensation was finally adjusted, and he was paid $5,500 for his services and disbursements, instead of the amount claimed. There was then no claim by Duke that the 400 shares in question had not been used in the manner stated, and the jury would have been justified in finding that he had no knowledge of any fact that would have led him to doubt or question the correctness of the defendant's statement in that respect. Subsequently, however, upon receiving a statement of the account of Hubbard, Price & Co., he found no credit for the 400 shares stated to have been delivered to them as collateral, and then for the first time his attention was directed to the correctness of that item in the defendant's account. The plaintiff Duke at once called the defendant's attention to the situation, who refused to deliver the stock, and finally this action for its conversion was commenced. It is obvious that there was no examination or consideration of the items of the defendant's account before the alleged settlement, except those relating to his compensation and the 800 shares of stock retained by him.

Assuming, as we must on this appeal, that the jury might have found that the shares in question were not delivered to Hubbard, Price & Co., and that in that respect the defendant's account was false, known by him to be so, and that he intended to convert them to his own use, can it be properly said that the settlement was final, and a bar to a recovery in this action, or that the plaintiffs can maintain this action only after a rescission of 63 N.E.-61

the settlement and a return of the property delivered by the defendant to the plaintiff Duke when it was made? We think not. Obviously, the relation between Duke and defendant was a fiduciary one. The latter was the mere agent of the former, and the title to the stock in question was in him, subject only to any lien the defendant had for his commissions or compensation. When the amount of his compensation was adjusted and paid, it was clearly the duty of the defendant to surrender not only the shares he held as security therefor, but also the 400 shares, if they were in his hands, although he had falsely stated in the account rendered that he had delivered them to the firm of Hubbard, Price & Co. As it is evident that the considerations which resulted in the settlement between the parties related only to the disputed compensation of the defendant and the retention of 800 shares of Duke's stock as security therefor, that as to the other items he relied upon the statements rendered by the defendant, and that, if the credit to the defendant for the 400 shares stated to have been delivered to Hubbard, Price & Co. was false and fraudulent, as might have been found, that settlement was no bar to a recovery in this case. Nor was the defendant entitled to a return of the 800 shares he delivered, or of the blank notes signed by the plaintiff Duke, and left with him for a special use, for which they were not required, as all that property belonged to Duke, and the defendant had surrendered to him only that which, in any event, was his own. Where an agent, already compensated for his services, has surrendered to his principal only a portion of the property in his hands, it would be strange if he could resist a claim for the remainder, retained by means of a false account, unless the plaintiff should redeliver to him property not his own, but belonging to the plaintiff, and upon which no lien in favor of the defendant existed. If the plaintiffs had sought to rescind the settlement as to the defendant's compensation, it is perhaps possible that they might have been required to return whatever he received by virtue of it. But that is not the case. There was no compromise as to the 400 shares, and, as we have already seen, the plaintiffs merely seek to recover their own, which the defendant was permitted to retain by reason of a false statement that it had been used in Duke's business. The plaintiff Duke did not discover the fact that the defendant's statement was false until after the question of compensation had been settled, and at that time the defendant's account of his transactions with Duke was assumed to be correct.

The case of Gould v. Bank, 86 N. Y. 75, and kindred cases, relied upon by the defendant, have no application to the facts in this case. In those cases the agreement for compromise was of the precise cause of action alleged in the complaint. Not so here. The cause of action alleged by the plaintiffs

relates not to any matter that was in dispate upon that settlement, but to a portion of the defendant's account that was permitted to stand because of its falsity, of which Duke was ignorant, and which a jury might find that the defendant fraudulently made. In that settlement the right of the plaintiff Duke to require all of his stock in the defendant's hands to be returned to him was in no way involved. Manifestly, Duke supposed that that had been done. Nor was Duke's right to the return of such stock at all affected by the amount of the defendant's compensation. Indeed, as the compensation of the defendant had not been agreed upon, it formed no essential part of his account of his transactions as his agent, and can hardly be said to be a proper part of such an account. The defendant's duty was to account to Duke for and to surrender to him all the property of the latter then in his hands, which was a matter entirely independent of his compensation. The validity and finality of that settlement as to compensation is in no way disputed by the plaintiffs. Nor is it at all involved in this action.

We think this case falls within the principle that where, after a settlement and adjustment of an account of the dealings between parties, a mistake as to one item is discovered, to recover which an action is brought, the commencement of such an action does not entitle the defendant to open the entire account, but the error may be corrected, and the rights of the parties readjusted, in that respect; and the defendant is bound by the account actually settled, unless he can show fraud in the settlement in respect to other items. Carpenter v. Kent, 101 N. Y. 591, 5 N. E. 787; Conville v. Shook, 144 N. Y. 686, 688, 39 N. E. 405. In the latter case it was said: "The rule is well established that a settled account may be impeached and readjusted by proof of unfairness, fraud, or mistake in law or fact. Weisser's Adm'rs v. Denison, 10 N. Y. 68, 61 Am. Dec. 731; Bruen v. Hone, 2 Barb. 586; Phillips v. Belden, 2 Edw. Ch. 1; Welsh v. Bank, 73 N. Y. 424, 29 Am. Rep. 175; Carpenter v. Kent, 101 N. Y. 591, 5 N. E. 787; Samson v. Freedman, 102 N. Y. 699, 7 N. E. 419; Wheadon v. Olds, 20 Wend. 174; Malcolm v. Fullarton, 2 Term R. 645; First Nat. Bank of Omaha v. Mastin Bank (C. C.) 48 Fed. 433, 2 McCrary, 438. It may not be necessary in such cases to open the whole account, but the mistake can be corrected and the rights of the parties readjusted as to such mistake."

No further discussion of this case is deemed necessary, as we have reached the conclusion that there was no such compromise, accord and satisfaction, account stated, laches, or release as constituted a bar to the plaintiffs' action, and that the learned trial court was not justified in directing a verdict for the defendant. It follows that the judgment of the learned appellate division affirming the judgment of the trial court should be revers

ed, and a new trial ordered, with costs to abide the event.

PARKER, C. J., and O'BRIEN, VANN, CULLEN, and WERNER, JJ., concur. GRAY, J., not voting.

Judgment reversed, etc.

(171 N. Y. 212)

WESTERVELT et al. v. PHELPS et al. (Court of Appeals of New York. May 13, 1902.)

ATTACHMENT-OWNERSHIP OF PROPERTY

FACTORS.

The

1. Shipping merchants in New York, in addition to their business as carriers, received consignments of merchandise from foreign shippers, and received advances thereon. A foreign shipper delivered certain goods, and received advances thereon from such merchants' agents, indorsing to such agents his bill of lading, who in turn indorsed it to such merchants. goods were sold in New York, and a balance remaining after paying such advances and shipping charges and expenses was attached as the property of the shipper. The invoice of the goods was made out as of goods of the shipper. the catalogue of merchandise sold by such merchants referred to the consignment as the shipper's goods, and the instructions given by the agents to the New York house stated that the consignment was for the account of such shipper. Held sufficient to show that the title to the goods remained in the shipper, notwithstanding the indorsement of the bill of lading. subjecting such balce to attachment as the property of the shipper.

2. Where each party asks for the direction of a verdict without seeking submission of any specific questions of fact, the right to go to the jury is waived, and the finding is in fact that of the court, and, where there is evidence to support it, it will be affirmed.

Appeal from supreme court, appellate division, First department.

Action by Otto W. P. Westervelt and others against George A. Phelps and others. From a judgment of the appellate division (66 N. Y. Supp. 517) affirming a judgment for plaintiffs, defendants appeal. Affirmed.

Lorenzo Ullo, for appellants. Frederic W. Hinrichs and Alfred E. Hinrichs, for respondents.

VANN, J. The persons who compose the firm of W. H. Westervelt & Co. united with the sheriff of the city and county of New York in bringing this action against the persons composing the firm of Phelps Bros. & Co. to recover the proceeds of certain merchandise consigned to the latter, which had been levied upon by the sheriff under an attachment issued in behalf of the plaintiffs' firm against the property of one Vincenzo Canepa, a nonresident debtor. The merchandise, consisting of 190 boxes of lemons, was shipped by Canepa from Palermo, Italy, on one of the defendants' vessels, to be carried to the port of New York. A bill of lading was issued to him by the master of the vessel, stating that on the arrival of the goods at the place of destination they were to be delivered "unto order, or his or their assigns,

he or they paying freight." Lagana & Co., who were the agents of the defendants at Palermo, advanced certain moneys to Canepa for them, and with their approval, upon the goods described in the bill of lading. Canepa indorsed the bill of lading to the order of Lagana & Co., and they indorsed it to the order of the defendants. The invoice accompanying the lemons, which was duly signed by Canepa, stated that they were shipped by him "per S. S. Aquileja for New York, and consigned to order." All the documents relating to the shipment described the consignment as the property of Canepa. Lagana & Co. sent various papers, containing a similar description, to the defendants at their branch office in Liverpool, which were forwarded from that place to them at their main office in New York. The agent of the defendants in Liverpool sent them a list of the shipping documents relating to various shipments, in which he described the one under consideration as follows: "190 boxes Vincenzo Canepa." The ship's manifest or index of the cargo, the consular invoice, the inclosure and instruction slips, and all other papers relating to the lemons described them as "on account of Vincenzo Canepa." Upon the arrival of the goods at New York, they were sold at auction, under the direction of the defendants, who, after deducting their advances and charges, held the balance, amounting to the sum of $298.54, when the attachment was levied thereon. The fruit was not attached, but only the surplus after payment of all advances and expenses. The account of sales, made out three weeks after the sale by the New York house for transmission to the Liverpool branch, was headed, "Account of the sales and net receipts of 190 cases shipped on Aquileja coming from Palermo for the account and risk of Mr. V. Canepa." Neither in their answer nor evidence did the defendants make any claim for themselves to the balance of the proceeds, but they insist that they are bound to recognize Lagana & Co. as holding the legal title to the proceeds of the lemons. No evidence was given tending to show that Lagana & Co. advanced any money on the bill of lading on their own account, or that they acted in any respect with reference thereto except as the agents of the defendants. At the close of the evidence both parties moved for the direction of a verdict, and neither asked to go to the jury upon any question. The court directed a verdict in favor of the plaintiffs for $298.54, and the defendants excepted to the denial of the motion for the direction of a verdict in their favor and to the granting of the motion for the direction of a verdict in the plaintiffs' favor. Upon appeal to the appellate division, the judgment entered upon the verdict was unanimously affirmed, and the defendants now come here.

The defendants claim that Lagana & Co., who were their agents, are entitled to the

fund, although no evidence was given to support the title except the indorsement of the bill of lading to them. That muniment of title they parted with when they indorsed it over to the defendants without restriction or notice. While it is possible that Lagana & Co. may have made advances on their own account, the presumption is that they did not, because they transferred the bill of lading to the defendants, and, although they advised them of the amount advanced on their account, they gave no notice of any other advances. By indorsement and delivery the title to the bill of lading passed to the defendants, and carried with it the apparent title to the goods. On the face of the matter Lagana & Co. acted simply as agents for the defendants, and, if they had any personal interest to protect, or sustained any relation to the transaction other than that specified by them, the presumption is that they would have given notice thereof, or made a restrictive indorsement, or made their claim known in some way. They remained silent, leaving as the only original evidence of ownership the invoice signed by Canepa, the shipping documents made out in his name as owner, and the bill of lading transferred to the defendants, with no limitation or condition. Under these circumstances, the absolute transfer of the bill, without notice of any claim, was a waiver by Lagana & Co. of any right they may have had so far as the defendants are concerned. Hence the defendants, after satisfying their own claim out of the proceeds of the goods, held the balance, not for Lagana & Co., their own agents, but for Canepa, the consignor and original owner. Thus, "a cause of action arising upon contract" existed in favor of Canepa against the defendants, which was subject to levy under the attachment. Code Civ. Proc. § 648. The sheriff holding the attachment, either alone or jointly with the attaching creditors, was authorized to maintain an action to collect the demand attached, and such was the purpose of the action before us. Id. §§ 655, 677. Upon the trial of the issue as to who owned the net proceeds the defendants disclaimed any interest therein. While this did not confer title upon Lagana, it destroyed the presumption arising from the indorsements of the bill of lading, which was not conclusive evidence as to ownership, but was subject to further proof. Price v. Powell, 3 N. Y. 322, 325; Bailey v. Railroad Co., 49 N. Y. 70; Bank v. Logan, 74 N. Y. 568. The plaintiffs were not bound to establish their rights beyond a doubt, but they could rest upon the reason. able presumptions which their evidence cre ated. If the defendants in good faith appre hended that their agents had some claim. which they might at some time assert, al though they had given no notice thereof, they could have procured a commission to examine them, and thus learned for themselves and shown to the court the exact facts. It was sufficient for the plaintiffs to make out a

prima facie case, provided it satisfied the trier of the facts that their theory was true. They, however, went beyond the shipping documents, and showed that the defendants, as well as their agent at Liverpool, in handling the consignment, treated it and the proceeds thereof as the property of Canepa, subject only to their own advances and expenses.

The facts already recited show that the trial justice was warranted in finding as a fact that Canepa was the owner of the balance in the hands of the defendants at the time the attachment was levied. If either party had so requested, the question would doubtless have been submitted to the jury for decision; but no request was made upon the subject, and, on the other hand, each party asked that a verdict be directed in its favor. This, as we have repeatedly held, "amounted to a submission of the whole case to the trial judge, and his decision upon the facts has the same effect as if the jury had found a verdict in the plaintiffs' favor after submitting the case to them." Adams v. Lumber Co., 159 N. Y. 176, 180, 53 N. E. 805; Sutter v. Vanderveer, 122 N. Y. 652, 25 N. E. 907. As we said in Thompson v. Simpson, 128 N. Y. 270, 283, 28 N. E. 627, 630: "The effect of a request by each party for a direction of a verdict in his favor clothed the court with the functions of the jury, and it is well settled that in such a case, where the party whose request is denied does not thereupon request to go to the jury on the facts, a verdict directed for the other party stands as would the finding of a jury for the same party, in the absence of any direction, and the review in this court is governed by the same rules as apply in cases of ordinary verdicts rendered without any direction." Although there was a verdict in form, in reality the finding was by the court. Hence, if necessary, the rule in cases of unanimous affirmance can be applied the same as if the jury had been withdrawn, the case submitted to the court for decision, and written findings made. The verdict was not directed by the court within the true meaning of the constitution, but by the consent of both parties the court decided the question as one of fact, and the verdict simply expressed the result, which was a finding both of fact and also of law by the court. Const. art. 6, § 9. The jury was merely the mouthpiece of the court to announce its decision. But it is unnecessary to apply the rule in this case, for the right to go to the jury was waived by the defendants, and there was evidence to support the findings as made by the court.

We find no reversible error in the record, and the judgment should be affirmed, with costs.

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

cur.

Judgment affirmed.

(171 N. Y. 247)

FULLER v. CITY OF MT. VERNON. (Court of Appeals of New York. May 13, 1902.)

MUNICIPAL CORPORATIONS-ILLEGAL CHANGE OF STREET GRADE-INJURIES TO ABUTTERS-RIGHT TO DAMAGES.

1. Where a city charter provides a method for the alteration of the grade of a street previously established thereunder, and for the indemnity of an abutting owner whose building is injured thereby, and the city alters such grade without conforming to the charter provision, the owner may maintain an action at law against the city to recover the resulting damages, though the alteration was effected in connection with the paving of the street.

2. On the trial of an action against the city for altering the grade of a street to the damage of plaintiff's abutting property, and not in accordance with the provisions of the city charter, an instruction that the jury should not consider any supposed benefits by reason of the change of grade of the street, and a refusal to charge that plaintiff must show that he has sustained damages exceeding the benefit, were proper, where there was no evidence that any benefits have been derived from the alteration of the grade, and he has paid for any benefits from the paving by the assessment levied therefor.

Appeal from supreme court, appellate division, Second department.

Action by James K. Fuller against the city of Mt. Vernon. Judgment for plaintiff was affirmed by the appellate division (72 N. Y. Supp. 1103), and defendant appeals. Affirmed.

This was an action at law, brought to recover damages inflicted upon the real property of the plaintiff by an alleged illegal change of the grade of Archer avenue in the city of Mt. Vernon, upon which the plaintiff's premises abutted. The plaintiff alleged in his complaint, among other things, that the grade of said avenue was established in or about the year 1892, and that the avenue was used at that grade in 1895, when he built a house upon his abutting premises and graded them to conform to the grade of the avenue as previously established; that in 1900 the defendant wrongfully, and without complying with the provisions of its charter relating to the alteration of grade, so changed the grade of said avenue as to raise it from one to three feet above that established in 1892, and thereby caused damage to the plaintiff to the extent of $1,000. The answer contains substantially a general denial. The jury found a verdict in favor of the plaintiff, and, the judgment entered thereon having been unanimously affirmed by the appellate division, the defendant appealed to this court.

William J. Marshall, for appellant. Arthur M. Johnson, for respondent.

VANN, J. (after stating the facts). The charter of the defendant confers power upon its common council to establish the grade of streets, highways, and sidewalks. Laws 1892, c. 182, § 180. It also authorizes that body "to alter the grade of any street or

highway or any part thereof," and provides the method of procedure. This method, among other things, includes the making of a profile showing the intended alteration, filing it with the city clerk, and publishing a notice that said profile has been so filed, together with a notice of the intention of the common council "to make such alteration." At any time within one year after the date designated in the notice for the hearing of objections, the common council, by a vote of three-fourths of all its members, may "so alter such grade." If, within six weeks after the vote "altering the grade of any street or highway," the owner of any building shall file with the clerk a claim for damages arising from such alteration," the common council is required to fix an assessment district and apply to the proper court for the appointment of commissioners "to estimate and assess such damages." Section 187. Said section also provides that "no building or other structure shall be deemed to have sustained damage by reason of such alteration of grade, unless such building or structure shall have been built with reference to or to conform with the previously established grade." Upon the trial the plaintiff read in evidence various resolutions, passed by the common council in 1892 and 1893, to establish the grade of Archer avenue, which is a public highway about 1,500 feet long, with three city blocks on either side. A map or profile was made and filed with the city clerk, and a resolution finally adopted establishing the grade of the avenue in accordance therewith. Plans and specifications were prepared to carry the resolution into effect, competitive proposals received, and one of the same was accepted. A contract was thereupon entered into, performed, and paid for, the final resolution having been adopted on the 6th of June, 1893. In 1900 the common council took action to regulate, grade, pave, and otherwise improve Archer avenue. A contract for the improvement was entered into, the contractor performed the work, and the city paid for it. There was a conflict in the evidence as to the extent of the change of grade, and it was admitted by the defendant upon the trial that it did not comply with section 187 of the city charter in altering the grade of the avenue. The plaintiff built a house in 1895 to conform to the grade of the street as established in 1892, and the effect of the alteration of grade in 1900 was such that he was obliged to raise his house and fill in his lot so as to conform to the new grade. The lowest estimate of any witness as to the expense of doing this work was $600, which is the amount of the verdict in his favor. The alteration of grade was effected in connection with the paving of the street with macadam, the construction of gutters, and the setting of curbs, for which an assessment was made upon the property of the plaintiff. He did not seek

to set this assessment aside, but asked to recover the damages caused to his premises by the change of grade. As we read the defendant's charter, there cannot be an alteration of the grade of a street within the city limits after the grade thereof has once been duly established, and the abutting owners have built with reference thereto, without compensating them for the damages caused by the alteration. If the defendant had proceeded regularly to alter the grade pursuant to the requirements of its charter, it would have been obliged to cause such damages to be assessed and paid. As it proceeded irregularly, the plaintiff lost no right by its failure to obey its charter, but could maintain an action at law to recover the damages. While the charter does not in express terms make provision to this effect, we think that by authorizing the grade to be established, and then providing a method for thereafter altering the grade and providing the procedure, the method so provided was exclusive, and that the defendant could not lawfully change the grade without conforming thereto. Otherwise, the provisions of section 187 with reference to compensation might be evaded by the common council, for, if they could lawfully alter the grade without complying with that section, they could alter it without paying damages. This would violate the theory of the charter with reference to the subject, which enables the city to establish the grade of a street without the payment of damages, but does not permit it to alter an established grade without paying damages to abutting owners who have built in conformity thereto. This construction seems to be in accordance with the views of the learned counsel for the appellant, as he says in his brief, referring to said section: "It clearly provides for the payment of damages where buildings or other structures have been erected with reference to an established grade and will be damaged by reason of the proposed alteration of said established grade."

We think that the case comes within the principle laid down in Folmsbee v. City of Amsterdam, 142 N. Y. 118, 36 N. E. 821, where it was held that while, in the absence of a statute providing for compensation, an abutting owner, whose land is injured by the change of grade of a street lawfully made, is without remedy, where the title of such owner extends to the center of the street, if the municipality illegally and wrongfully excavates or otherwise interferes with the street it is liable to him for the damages. The language of Judge Earl in that case is equally applicable to the case before us: "But the claim is further made on behalf of the defendant that the plaintiff's only remedy for damages caused to him by the change of grade was that given by the section, to wit, the appraisal of the damages and the award of compensation by three commissioners. But the remedy there provided can be invok