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means of communication, and the facts of this case do not constitute an exception to the rule. Klinck v. Colby, 46 N. Y. 427, 7 Am. Rep. 360; Edmondson v. Birch, 1 K. B. 371.

The judgment should be reversed.

Judgment and order reversed, and new trial granted; costs to abide the event. All concur.

CARROLL V. CHAUNCEY.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.) MONEY RECEIVED ($ 18*)-PURPOSE-EVIDENCE-WEIGHT.

Weight of the evidence held to show that plaintiff, bondsman for a fugi. tive, agreed to pay and did pay money to defendant's bank to aid in bringing back, as well as in locating, the fugitive, and hence was not entitled to recover it on the ground that it had been used for a purpose other than agreed on.

[Ed. Note.-For other cases, see Money Received, Cent. Dig. & 72; Dec. Dig. § 18.*] Appeal from Municipal Court, Borough of Brooklyn, Third District.

Action by Lawrence F. Carroll against George W. Chauncey. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILLER, JJ.

John J. Kuhn, for appellant.
James F. Lynch (Daniel E. Lynch, on the brief), for respondent,

MILLER, J. In the spring of 1904 one Forbes was arrested on the complaint of an officer of the Mechanics' Bank of Brooklyn, charging him with obtaining money from the bank by means of forged checks. Bail was fixed in the sum of $5,000. The plaintiff, though a stranger to him, became one of his bondsmen, and he was released. Shortly thereafter he absconded. The bank employed Pinkerton detectives to locate the fugitive. It was learned that his wife was about to sail for Buenos Ayres, and arrangements were made for a detective to sail at the same time. At about that time a conversation occurred at the bank between the defendant, the president of the bank, and the plaintiff. The plaintiff's claim is that, as a result of that interview, he agreed to contribute to the defendant the sum of $500 to be used by the latter in “bringing back” the fugitive, and that he subsequently did contribute said sum, but that it was used toward defraying the expenses incurred in locating the fugitive, and not in bringing him back. The defendant's position is that the money was advanced to the bank, not to the defendant individually, and that it was used for the purposes intended.

The overwhelming weight of the evidence supports the defendant's contention. It cannot be doubted that the plaintiff knew that the defendant was the president of the bank and was acting as its representative. He knew the charge on which Forbes had been arrested, he went

to the bank uninvited, unless his statement that he met some man in the street, who told him to go there, is to be credited, and the letter, calling upon him to pay the $500 as he had agreed to do, was signed by the defendant as president of the bank. Although the plaintiff tried to make it appear that Forbes had already been located when that interview occurred, the evidence plainly established that he had not been located, except as his location was suspected from the supposed destination of his wife. The plaintiff says that the interview occurred in the spring of 1904. In July, 1904, a cablegram was received from the detective, who had sailed with the wife of Forbes, advising the bank that Forbes had been located in Buenos Ayres, but that he would oppose extradition. Whereupon arrangements were made with the district attorney of New York county to send a county detective with extradition papers to get Forbes, and the officer sent returned with him on the 5th of October. After the interview between the plaintiff and the defendant, the bank paid to the Pinkerton Detective Agency at different times the sum of $2,834.80 for services and expenses subsequently incurred. It paid certain sums for legal expenses, and it advanced to the said county detective, because there was no money in the contingent fund of the county which could be used for the purpose, the sum of $2,300 to defray his expenses. Of the latter sum the county of New York paid back the sum of $1,851.30, which it later compelled the plaintiff to pay because of his liability on the bond; and the plaintiff says that that was the only expense legitimately incurred in “bringing back” the fugitive, and toward which he agreed to contribute the sum of $500. But the bank had no interest in arranging with the plaintiff to contribute to that sum. The county of New York was. bound to pay those expenses. The bank merely loaned the money. Obviously the expenses to which the bank desired the plaintiff to contribute were those for which it could not be reimbursed by the city.

The plaintiff was liable in the sum of $5,000, and it is evident that he was anxious to have every effort made to apprehend the fugitive, and considered himself fortunate because he had to contribute only a part of the expense, instead of being liable for all. He did not pay the said sum of $500 until January, 1905, when several letters had been written him by the defendant and the attorney of the bank, calling upon him to pay the money as he had agreed to do; and in one of those letters. he was advised that his obligation to contribute the sum of $500 as agreed upon was entirely independent of his liability to the city by reason of the bond. But, aside from that, it is plain that, when the arrangement was made, the parties contemplated the expenditure of money in locating and bringing back the fugitive, and that the bank subsequently expended much more than $500 for those purposes. While there is a dispute respecting the precise words used by the parties, the conceded facts plainly show what they intended. If the words used were "bring back," the parties understood that bringing back involved locating the fugitive.

The judgment is reversed.

Judgment of the Municipal Court reversed, and new trial ordered; costs. to abide the event. All concur.

JUNG V. CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. April 23, 1909.) MUNICIPAL CORPORATIONS (8 827*)-SURFACE WATEB IN STREETS LIABILITY

FOR DAMAGES TO PROPERTY.

A city was not liable for damages to real property abutting on a street through surface water flowing down the street, where that was the natural course of drainage and the city in no way interfered with the natural surface water course or exercised any authority over the street.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. $ 1772; Dec. Dig. $ 827.*] Appeal from Trial Term, Kings County.

Action by Frederick Jung against the City of New York. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before WOODWARD, JENKS, GAYNOR, and RICH, JJ.
Jesse Fuller, Jr., for appellant.
James D. Bell, for respondent.

RICH, J. The plaintiff appeals from a judgment dismissing his complaint in an action brought to recover damages to real property, in consequence of the alleged negligence and carelessness of the defendant in failing to construct sufficient sewers in Jamaica avenue and the careless and negligent management and maintenance of those existing, by reason of which the contents of said sewers, together with surface water, flowed upon the plaintiff's property, which was situated on Morris avenue, 450 feet east of Jamaica avenue. Morris avenue is an unpaved street, and has no curb or sewers. Jamaica avenue is paved with brick, and has a stone curb, but no sewers extending through it. Surface water from the latter avenue, at the point where Morris avenue intersects it, flowed into and through Morris avenue upon the plaintiff's property. The evidence tends to show that this was the natural course of drainage. There was no proof of any discharge of sewage and no satisfactory evidence tending to establish liability on the part of the defendant for the flow of surface water complained of.

In Bastable v. City of Syracuse, 8 Hun, 587, and in Byrnes v. City of Cohoes, 67 N. Y. 204, cited by the appellant, and upon which he relies, there was proof that the defendants changed and diverted the course and flow of surface water, collecting it in the street on which plaintiff's property was located, from which it flowed upon the premises, for which wrongful diversion, collection, and drainage the defendants were held liable. In the case at bar there is no proof that the surface water ever flowed in any other direction or course than through Jamaica avenue to its lowest point, and thence through Morris avenue, or across the land now occupied by that avenue, before it was laid out as a street; and it is not shown that the defendant had anything to do with this street, or ever exercised any authority over it. There is no proof that the defendant in any manner interfered with or surcharged the natural surface water course or volume. In Gravey v. City of New York, 117 App. Div. 773, 102 N. Y. Supp. 1010, the flooding was

caused by a break in a sewer. In Noonan v. City of Albany, 79 N. Y. 470, 35 Am. Rep. 540, the surface water and sewage of a large territory was collected and discharged through artificial channels, in a solid body, at a given point, from whence it flowed on plaintiff's land; and in Seifert v. City of Brooklyn, 101 N. Y. 136, 4 N. E. 321, 54 Am. Rep. 664, sewers were constructed within an area or district which included plaintiff's property, which were inadequate and insufficient to properly carry off the sewage and water collected in and discharged through them, by reason of which the contents were forced through the manholes and inundated plaintiff's property. The mere statement of these facts is sufficient to establish that the rules declared in the cases cited to do not establish the liability of the defendant in the case at bar, in which the facts upon which such decisions are based are wholly lacking

The judgment must be affirmed, with costs. All concur.

NEWMAN et al. v. OVERBAUGH et al. (Supreme Court, Special Term, Rockland County. April 27, 1909.) 1. MOBTGAGES ($ 25*)–FAILURE OF CONSIDERATION.

There is a failure of consideration where a mortgage and accompanying bond are given on no other consideration than promises of the mortgagee, none of which he keeps.

(Ed. Note.—For other cases, see Mortgages, Cent. Dig. 41; Dec. Dig.

25.*] 2. MORTGAGES (256*)-RIGHTS OF ASSIGNEE.

An assignee of a mortgage and accompanying bond takes them, like any other chose in action except a negotiable note, subject to the equities between the parties.

(Ed. Note.-For other cases, see Mortgages, Cent. Dig. 8 678; Dec. Dig.

§ 256.*) 3. MORTGAGES (257*)-Bona FIDE PURCHASER.

One taking an assignment of a mortgage and accompanying note in liquidation of an antecedent debt is not a bona fide purchaser for value.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. 8 678; Dec. Dig. § 257.*] Action by E. D. Newman and others against De Witt Clinton Overbaugh and others. Complaint dismissed.

Abram A. Damarest (E. T. Lovatt, of counsel), for plaintiffs. Frank Comcsky (William McCauley, of counsel), for defendants.

TOMPKINS, J. The plaintiffs must fail in this action for the following reasons: The mortgage, for the sum of $10,000, which is sought to be foreclosed in this action, was given by the defendant Overbaugh to the defendant McCormick with the understanding and upon condition that McCormick should, in October, 1907, pay the first mortgage of $4,000 then covering the defendant's premises described in the complaint, and should deliver to the defendant Overbaugh 75 shares of the capital stock of the Commercial Fund, Incorporated, and should also pay to him an additional sum of $1,000, and upon the further *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

116 N.Y.S.--24

condition that the defendant Overbaugh should, within seven days from the delivery of the said mortgage, which was on June 12, 1907, be elected president of the said Commercial Fund, and that as such president the defendant Overbaugh should draw a compensation of not less than $35 per week, all of which McCormick agreed to do or bring about. None of the said conditions was fulfilled by the defendant McCormick. There was, therefore, no valuable consideration for the making and delivery of the said mortgage. The only consideration was the promises of McCormick, none of which was kept by him, so that in any event there was a failure of consideration. Besides, the evidence justifies and requires a finding that the said mortgage, together with the bond accompanying it, was procured by McCormick from Overbaugh by means of fraud, deceit, and false representations.

It would not be seriously claimed that McCormick could himself have enforced or collected the mortgage, or any part thereof. The question, then, is whether these plaintiffs, as assignees of the bond and mortgage to the amount and extent of $1,900, stand in any better position than would McCormick, were he the plaintiff. The plaintiffs are in the banking business in the state of Virginia, and it appears that on the 7th day of June, 1907, McCormick, who was acquainted with the plaintiffs, and for whom they had previously cashed checks drawn on other banks, drew a check for the sum of $1,900 upon the Continental Trust Company of Philadelphia, payable to his own order, and indorsed it, and procured the plaintiffs to cash it. Thereafter the check was protested by the trust company and returned to the plaintiffs, and was received back by the plaintiffs with notice of protest, on or about the 13th day of June, 1907. The mortgage in question was executed by the defendant Overbaugh and delivered to the defendant McCormick on the 12th day of June, 1907, for specific purposes, which were not carried out by McCormick, and on or about the 15th day of the same month the defendant McCormick, without the knowledge or consent of the defendant Overbaugh, sent by mail to the plaintiffs the bond executed by the defendant Overbaugh as aforesaid, and a copy of the said mortgage, and these papers were in that manner delivered to the plaintiffs by the defendant McCormick, and thereby assigned or transferred to secure payment of the said sum of $1,900 already due the plaintiffs upon said protested check.

The plaintiffs took the bond and mortgage subject to all equities between the original parties thereto, namely, the defendants McCormick and Overbaugh. In the case of Central Trust Company v. West India Company, 169 N. Y. 323, 62 N. E. 390, the Court of Appeals held:

"It is further the settled law of this state, though a different rule prevails, not only in England, but in the federal courts, and in some of the states, that a bona fide purchaser for value of a chose in action takes it subject, not only to the equities between the parties, but also to latent equities in favor of third persons."

So that, conceding that the plaintiffs took the said bond and mortgage as security for McCormick's indebtedness to them in good faith and without notice of the equities between McCormick and Overbaugh, they nevertheless took the assignment subject to those equities. That

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