Hennessey v. Farrelly

It has often been decided that experts may prove, not only the unwritten law, but also the construction given to the statutes, of a foreign state. They may refer to the decisions of courts, and to the statutes themselves, to aid their recollection, but it is upon their testimony as to what the law of the foreign state really is, that the courts of England, and the courts of some of the states of the American Union, rely (Wharton on Evidence § 308 & note 2, citing cases; Phillips on Evidence, c. V. § IV. Vol. 2 p. 428, Cowen, Hill & Edwards’ notes; Trimby v. Vignier, 6 Carr. & P. 25; Wilson v. Smith, 5 Yerger 399; Nelson v. Bridport, 8 Beav. 527; Cocks v. Purday, 2 Carr. & K. 269).

Where the statute law of a foreign state is difficult of ascertainment; where, for instance, there have been many alterations of a statute, which make it almost impossible to determine which of its original provisions have been repealed by implication or otherwise, or what provisions have been modified to a greater or a less degree, or where the decisions of the foreign courts construing the statute are conflicting or obscure, I know of no reason why the courts of New York should not avail themselves of the aid that might be afforded by the oral testimony of foreign jurists as to what they consider to be the final result of the adjudications of the foreign courts upon the statute and the amendments that have been made to it. Our rule requires that the statutes themselves and the reports of the decisions of the foreign courts construing them shall be produced and offered in evidence, when a party wishes to avail himself of them (Code Civ. Pro. § 942; Tonlando v. Lachenmeyer, 6 Abb. Pr. N. S, 215), but yet I can see no objection to the courts of tins state getting such light, when they feel that they require it, as the testimony of experts may throw upon the dark places in a foreign statute. These observations are obiter, for the case that I have supposed is not the case before us. Here the language of the statute is plain, and the counsel for the defendant and appellant frankly admits that there has been no decision by the Supreme Court of *472New Jersey upon the point in controversy. The defendant sought to prove by Mr. Lum, of the New Jersey bar, what, in the opinion of lawyers in New Jersey, should be the construction of the plain and clear language of á New Jersey statute. The statute itself had been introduced in evidence. The testimony offered would have had no force or ‘authority in New Jersey, nor would it have been any evidence of what the courts of that state would decide when the question should be presented to them for decision. It was immaterial.

As to whether or not the- defendant’s check was an actual payment in cash of two thousand,five hundred dollars towards the common stock of the limited partnership, not 'much need be said. Suppose that the check had never been presented for payment, would any one contend that the defendant had actually paid anything? Until the check had been collected, he had parted with nothing, for he still had control of the fund upon which the check was drawn, and could do with it as he pleased. If he had given his due-bill, which was never paid because never presented, would any one contend that the due-bill was a payment in cash, even if the most indubitable evidence were given that he was ready, able and willing to pay in cash whenever it might be presented ?

This is not a case between debtor and creditor, and it is foreign to the question to argue that it is in the power of a creditor to accept a check in absolute discharge of a debt. There is never any presumption that it is taken in payment, but, on the contrary, the implication is that it is only to be regarded as payment, if cashed (Daniell on Negotiable Instruments § 1623). If the case were between the firm of A. & K. Flynn as creditor, and Farrelly as the debtor, there would be no presumption that the check, uncashed, was absolute payment of his stipulated contribution to the common stock. Can it be that there is such a presumption Avhen the law positively forbids the acceptance of anything but actual cash in payment of the contribution ?

If the check had been paid promptly and in the regular *473course of business, after its delivery by Farrelly to Flynn, the court would not be astute in sifting the evidence, in order to discover whether by some possibility the affidavit of the general partner was not made and filed a fraction of a day in advance of the presentation of the check at the bank. But here it appears that the check was never paid at all. After the lapse of more than a month, it was returned to Farrelly, who gave another check for a larger amount to Flynn. If the delivery of the first check to Flynn was a payment in cash, then when Farrelly gave him the second check he paid his contribution a second time; and yet the firm never received Farrelly’s contribution more than once, and that was more than a month after the firm began business. As between Farrelly and the Flynns, the failure of the bank, whilst the check Avas in the hands of the latter, might have operated as a payment of Farrelly’s contribution; but not as between Farrelly and the creditors of the firm. The cash had not actually reached the treasury of the firm, and, therefore, Farrelly could not have escaped liability to the firm’s creditors.

The judgment should be affirmed, with costs.

Larremore, Ch. J., and J. F. Daly, J., concurred.

Judgment affirmed, with costs.