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[Vol. 38. "Now therefore, the condition of the above obligation is such that if the said Travelers Insurance Company, its successors or assigns, or any of them, shall indemnify and save harmless the said Third National Bank of the city of New York, its successors and assigns, from and against any and all claims, demands, suits, actions, damages, costs, charges, liability and expenses, by reason of the return of the said sum, and, in addition, shall well and truly pay, upon demand, such portion of the said sum of $15,555.03, not exceeding $1,822.31 and interest, as the said Third National Bank of the city of New York may not, in fact, collect, within twelve months from the date hereof, from the said Bank of Salt Lake, or from the said collateral securities, then this obligation is to be void, otherwise to remain in full force."

The plaintiff having failed to collect any part of the sum of $1,822.31 within the time specified in the bond, made a demand upon the defendant for repayment of the sum, and, that being refused, brought this action. It is not at all difficult to comprehend the attitude that these parties bore to each other upon the failure of the Bank of Salt Lake, or the motive which prompted the defendant to ask of the plaintiff that it return the whole of the original deposit. As these parties stood at this date, the Bank of Salt Lake was a debtor to the defendant in the sum of its draft upon the fund. With this debt the plaintiff was not at all concerned; it was not a creditor of any person or corporation for its amount, and it was indebted to no one on account of the payment of that draft. It stood indifferent as between the Bank of Salt Lake and the defendant; it was required to do nothing except to pay over to the owner the balance of the fund when that should be demanded. Under these circumstances the defendant did what many persons have done under similar conditions. Recognizing the fact that the plaintiff had greater facilities for the collection of the money than it had, and was much more likely to collect than it was, it proposed to the plaintiff that all the money be returned to it that the Bank of Salt Lake might become its debtor, and that it might undertake the bur den of collection. There is nothing in the bond providing that the plaintiff should be paid anything for making the collection, nor does it elsewhere appear, or that it received any consideration for paying over the money, except the promise to repay upon demand if the


money was not collected within the year. The whole transaction was, therefore, a gratuitous undertaking upon the part of the plaintiff to enable the defendant to recover its money. In the light of these circumstances this undertaking is to be construed, and it may be observed in this connection that the defendant ought not to be heard to insist. upon exoneration from liability unless it be very clear that it is so entitled. The defendant insists that the instrument is a guaranty of collection, and that diligence is shown to have been lacking in this respect, whereby liability is avoided. The plaintiff insists that the undertaking is a primary obligation to pay if collection was not had, and this having failed, liability became fixed when the demand for payment was made. We think the latter contention is to be supported. When the money was paid over to the defendant it became indebted to the plaintiff in that amount. The undertaking of the plaintiff was to collect, if it could, within the year, and failing to do that the defendant would pay. The relation which existed, and the fact that the plaintiff delivered in full the money to the defendant excludes a construction that the instrument was one of guaranty. As between the parties hereto the relation was that of debtor and creditor, and the defendant was primarily liable for the debt. Authority is abundant in support of this view. (Mallory v. Gillett, 21 N. Y. 412; Clark v. Howard, 150 id. 232.) It is always competent to show what is the real relation between the parties in order to determine the character of the liability. (Evansville Nat. Bank v. Kaufmann, 93 N. Y. 273.) As we have before observed, the facts are without dispute, are recited in the bond, and they conclusively establish that the debt was at all times the debt of the defendant, not changed or modified by any fact, except that the plaintiff gratuitously undertook to collect the debt from another, in relief of the defendant, if it could. It would be a singular rule of law that would now require it to lose the money because it could not collect it from the party indebted to the defendant. The claim of the defendant, that the plaintiff might secure double payment by settling with the Salt Lake bank, or the other persons upon the note, within the year, and postpone payment. until after the period mentioned in the bond, is, to our minds, fanciful in the extreme. Such a course, if intentional, would be a fraud APP. DIV.-VOL. XXXVIII. 66

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[Vol. 38. upon the defendant, and the payment would in any event inure to its benefit. After payment of the money secured by the bond, if the plaintiff by any means should receive this money, it would not be its money but the money of the defendant, and if it sought to retain it, action would lie therefor at the suit of the defendant.

As no defense to this action has been shown, the judgment should be affirmed.

All concurred.

Judgment and order affirmed, with costs.

TION, Appellant.

Libel- —a reference by counsel, in summing up, to a verdict rendered in another case, held to require a recersal.

In an action for libel, the plaintiff's counsel in summing up to the jury stated, "To show how juries give verdicts in libel suits, I have here a bound volume of Court of Appeals cases from the library, and in the action entitled Le Huray Sisters the jury rendered a verdict for the plaintiff for $10,000,” and, upon the court ruling that the statement was improper, further stated, And the Court of Appeals affirmed this judgment.”

Upon the defendant's counsel taking an exception to the remarks, the plaintiff's
counsel said, "I withdraw my remark about that ten thousand dollar verdict
and ask you, gentlemen, not to consider it."

Held, that the conduct of the plaintiff's counsel in attempting to place improper
matter before the jury, was of such a persistent, continuous and flagrant char-
acter as to warrant a reversal of a judgment in favor of the plaintiff ;
That the charge of the court to the jury, that the matter referred to had nothing
to do with the case then on trial, and that they knew nothing about it, and were
not to give it any significance in arriving at their verdict, did not cure the



APPEAL by the defendant, The Morning Journal Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of February, 1898, upon the verdict of a jury, and also from an order entered in said clerk's office on the 25th day of February, 1898, denying the defendant's motion for a new trial made upon the



App. Div.]

Milton S. Guiterman, for the appellant.

J. Charles Weschler, for the respondent.


This is an action to recover damages for the alleged publication of a libel. The verdict which has been rendered is quite large, but in view of the testimony given upon the trial it was perhaps justified. We should have no difficulty in affirming this judgment, were it not for the action and statements made by the attorney for the plaintiff in his summing up to the jury.

It appears in the record that upon such address counsel for the plaintiff stated: "To show how juries give verdicts in libel suits, 1 have here a bound volume of Court of Appeals cases from the library and in the action entitled Le Huray Sisters, the jury rendered a verdict for the plaintiff for $10,000. The Court: That is entirely improper, and should not be made to the jury. I rule you have not the right to make that statement, Mr. Hallheimer. Mr. Hallheimer: And the Court of Appeals affirmed this judgment. Mr. Guiterman: I take an exception to those remarks. Mr. Hallheimer: I withdraw my remark about that ten thousand dollar verdict and ask you, gentlemen, not to consider it. Mr. Guiterman: I object to that statement again being made, and I take an exception to that remark being made to the jury."

There was no possible justification for the reference by the counsel for the plaintiff to the case in the Court of Appeals. It is not possible that any attorney can be so carried away in his zeal for the success of his client, or be so blinded in his sense of propriety, as to be unaware of the improper character of such matter. It was intended for no other purpose than to convey to the minds of the jury that in this class of cases the sum awarded as damages was always large. When the interruption of counsel came from the court, if he had before lacked perception of the impropriety of his course, it was then called sharply to his attention. Yet he not only disregarded the suggestion of the court, but he aggravated his offense, and it was only when exception was taken, and he became fearful that legal error might be predicated thereon, that he hastened to make what was evidently thought to be a correction of a remark which furnished good ground for exception. In the cor


[Vol. 38. rection, however, the sting of the matter was left by the reiteration of the $10,000 verdict, thus making the correction substantially as offensive as was the original trespass upon the defendant's rights. It is true that the court in its charge to the jury stated that this matter had nothing to do with the case then on trial, and that they knew nothing about it, and were not to give it any significance in arriving at their verdict, as such course would be wrong. But in view of the peculiarly aggravated character of the offense of which plaintiff's counsel had been guilty, we are of opinion that the error committed cannot be said to have been corrected.

In Halpern v. Nassau Electric R. R. Co. (16 App. Div. 90, 94) a similar offense was considered by this court, and the charge in that case was that the objectionable matter had nothing whatever to do with the case, and the jury must disregard the statements. Yet we held that the error was not cured. We announced the rule there as we announce it here: "We by no means intend to say that every irrelevant or improper comment made by a counsel through inadvertence or excess of zeal would require or justify setting aside a verdict, but in this case the conduct of the counsel was persistent and continuous and his fault flagrant." So here the offense was even more persistent, continuous and flagrant than it was in the case to which the language quoted was applied. Indeed, in the present case, the flagrant character of the offense, which was continued after the court had interrupted, approached dangerously near, if it did not constitute, a contempt of court. Its persistent character was not in the least restrained, although the interruption came from court and counsel, until it became apparent that a fatal exception had been taken, when, as we have already observed, the attempt to correct was quite as bad as anything which had preceded it. We think that courts would be remiss in their duty if such flagrant violations as this were overlooked, and not only overlooked but rewarded.

It follows that the judgment should be reversed and a new trial granted, costs to abide the event.

All concurred, except BARTLETT, J., absent.

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

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